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Smith Moore Leatherwood's quarterly transportation newsletter is targeted to trucking and logistic companies, trucking insurance companies, accident reconstructionists, transportation association members and other organizations impacted by legal developments within the industry.

Text of Transportation Newsletter


    WINTER 2012

    Attorneys at Law


    Medicare News

    FMCSA Bans Handheld Mobile Devices


    According to a case recently issued by the 6th ircuit Dedicare s right to recoer condional ayents ro seleent roceeds is not limited by the degree of legal liability of the toreasor maing the selement ayment /n ,adden h^ Eo 6 t> Eoember Wlain aealed Dedicare s asseron that Dedicare as entled to be comensated for the full amount of the condional ayments it made as a result of inuries Wlain suered aer being stuc by a ehicle oned by Wennyrile Zural lectric ooerae ororaon Wlain argued that since Wennyrile as only resonsible for Wlain s inuries and an unidened drier ho caused the Wennyrile truc to eer into him as the rimary toreasor dherefore Wlain argued that the selement roceeds from Wennyrile need only be alied to reimburse of the condional ayments made by Dedicare

    dhe 6th ircuit elained that under h^ ybii Dedicare s right to recoery of the full amount of its condional ayments is determined by the responsibility of the toreasorprimary plan as responsibility is

    dened in the statute hich statesA primary plan and an enty that receies payment from a primary plan, shall reimburse the appropriate drust &und for any payment made by the ^ecretary under this subchapter ith respect to an item or serice if it is demonstrated that such primary plan has or had a responsibility to mae payment ith respect to such item or serice A primary plans responsibility for such payment may be demonstrated by a judgment, a payment condioned upon the recipients compromise, aier, or release hether or not there is a determinaon or admission of liability of payment for items or services included in a claim against the primary plan or the primary plans insured, or by other means

    dhus, as stated by the 6th ircuit, based on the language of the statute above, if a claim is made against a primary plan, and the Dedicare beneciary receives a payment condioned upon a release of the claim, then the primary plan is deemed to have responsibility for items or services included in the claim dhus, the 6th ircuit held

    P. 2 Yes, You Need a Tariff

    Inside This Issue

    P. 4 Team Updates

    P. 6

    How an MCS-150 Can Affect Your CSA Score

    P. 6 New Standards for Cargo Security

    P. 7

    Marso Vs. UPS

    Transportation News: Now Available OnlineZemember to visit smlperspecvescom, ^mith Doore >eatheroods online legal magazine that presents maers of la as they relate to you

    All arcles contained ithin our uarterly transportaon nesleers are posted online, and you are liely to nd an arcle or to not contained ithin the nesleer as ell ont orry, ere sll prinng hardcopies

    You can also subscribe to our dransportaon Z^^ feed to receive uptotheminute nes from our dransportaon team beteen nesleers te encourage you to leave your thoughts and comments on the arcles te love to hear from you

    Kn ecember , , the &D^A and W,D^A Wipeline and ,azardous Daterials ^afety Administraon published their &inal Zule to restrict the use of handheld cellular phones by commercial motor vehicles Dss, violaon of hich ill subject drivers and carriers to s nes

    and penales dhis &inal Zule, hich goes into eect :anuary , , operates to amend both the &ederal Dotor arrier ^afety Zegulaons &D^Zs and the ,azardous Daterials Zegulaons ,DZs dhis

    is on the heels of &D^As :anuary announcement of a 'uidance to &Z hich purported to ban teting

    as an agency interpretation of a regulation governing euipment brought into the vehicle and last ^eptembers

    rule banning of teng by Ds drivers /mmediately aer the announcement of the &D^As final rule, the Eational dransportation ^afety oard called for a nationide ban on all

    cell phone use in all vehicles

  • Yes, You Need a Tariff

    What activities are actually prohibited? dhe rule restricts Ds drivers from holding, dialing or reaching for a handheld mobile device, to include devices ith a pushtotal funcon dhe rule aects all devices that use commercial mobile radio services to transmit and receive voice communicaons dhus, pushtotal devices fall under the restricon even though they are similar in funcon to toay or radios hich are not restricted /mportantly, this rule does not restrict the use of handsfree devices ith onetouch capability A driver may iniate, anser or terminate a call via such mobile device provided it can be done ith onetouch of a headset or the mobile device itself dhe &inal Zule recognizes that most mobile telephones have a speaer phone funcon and onetouch dialing and thus ould be complaint ith this rule hnder the reaching requirement, the driver must be able to perform this onetouch funcon hile in the normal seated posion and restrained in the drivers seat dhus, the device must be ithin comfortable armsreach proimity to the driver, preferably mounted in a ed locaon or a device ith a luetoothstyle headset Kne ould epect developments from vehicle manufacturers to include built in communicaon systems hich meet the ne regulaons

    dhe rule does not currently aect the use of radios, 'W^ systems or eet management systems, although the &D^A is considering etending the scope of future rulemaings to target addional electronic devices &urther, the design of the interior cab may be outside the scope of &D^As jurisdicon and more in the heelhouse of one or more other agencies ,oever, as ^ecretary >a,ood has announced that he ill not be serving an addional term, it is epected that any push for these addional rulemaings may lose some momentum Addionally, the rule does not apply hen the Ds is not being driven hnder the rules, driving means operang a Ds on a highay, and including hile temporarily stopped because of trac, trac control devices, or other momentary delays ,oever, it does not include operang a Ds hen the vehicle has been moved to the side or o of a highay and has been stopped in a locaon here the vehicle can safely remain staonary dhus, the use of a handheld mobile telephone is permissible

    under the rule provided the driver has pulled o of the roaday and stopped the vehicle dhere is no specic requirement that the ignion be o in fact, language hich ould have prohibited phone use ith or ithout the motor running as removed from the &inal Zule

    To whom does the rule apply? /n short, almost everyone dhe rule ill apply, as do all &D^Zs, to drivers of Dss in the employ of interstate motor carriers and intrastate hazmat carriers ,oever, the rule ill also apply to both school bus operaons by private operators in interstate commerce and small passengercarrying vehicles not for direct compensaon, though they ill connue to be eempt from other &D^Zs Addionally, the rule requires state adopon no later than :anuary , as a condion for receiving funding under the Motor Carrier ^afety Assistance Wrogram MC^AW hpon adopon by the individual states, the rule ill lieise become applicable to nonhazmat intrastate CMs drivers /t is important to note that some states adopt federal regulaons by reference ^C, for eample, ^C Code Ann 6 and, therefore, the rule may be enforceable against intrastate motor carriers as early as :anuary ,

    What are the consequences of violation?Any violaon of the handheld restricon may result in a civil penalty imposed on the driver in an amount not to eceed , &or most drivers, a civil penalty of that magnitude is a defacto suspension and liely end of a career Addionally, the motor carrier may be sanconed up to , per violaon As indicated, these are slidingscale penales and the actual amount of the ne ill be dictated by the facts and circumstances surrounding the violaon Zecent developments have restricted &MC^A state administrator discreon in reducing nes, and hile a motor carrier could count on substanal discounts in civil penales in the past, those days are overMulple violaons carry addional penales against drivers to violaons in a threeyear period ill saddle a driver ith a mandatory 6day C> disqualicaon dhree or more violaons in a threeyear period land a driver a mandatory day disqualicaon ,oever, in the event a driver receives a leer of

    disqualicaon for violang the restricons, the driver may peon for a revie ithin 6 days As noted, a motor carrier that allos or requires their drivers to use handheld devices ill also be held liable for the drivers violaon and subjected to civil penales up to , /mportantly and although the AdA and other groups vigorously lobbied for such a requirement to be included in the &inal Zule, there is not a requirement that the carrier be aare of the violaon in order for liability to be imposed As a nal maer, &MC^A ill be adding handheld mobile device usage to the river &itness A^/C ithin the C^A system thile &MC^A has yet to release the details, e ould not be surprised to see points aarded for this violaon in a range beteen and

    How Should Carriers Adapt? dhus, motor carriers should implement company policies, pracces and training programs to clearly establish zerotolerance for violaons of this rule ,oever, regardless of company policy, a carrier ill be held liable for driver violaons here the driver as oring in the course of employment, carrying out company business, or otherise acng on the carriers behalf hen the violaon occurred

    ConclusionClearly, &MC^A is taing broad steps to decrease distracted driving in CMss 'iven the nes and penales at stae, as ell as the looming C^A implicaons, both carriers and drivers should tae appropriate steps to bring themselves and their operaons into compliance ith the rule

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