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ONLINE SPECIAL: US cell phone ban raises stakes for motor carriers

PORTLAND, Ore. -- A ban on the use of handheld cell phones by commercial drivers in the US, passed earlier this year, exposes motor carriers to even greater liability should their drivers ignore the law and be involved in a crash.

PORTLAND, Ore. — A ban on the use of handheld cell phones by commercial drivers in the US, passed earlier this year, exposes motor carriers to even greater liability should their drivers ignore the law and be involved in a crash.

The federal law, passed Jan. 3., prohibits commercial truck drivers from using handheld cell phones while driving. The law still allows hands-free devices to be used, provided drivers wear a headset and can answer a call or dial a number with the push of a single button.

Drivers caught violating the law are subject to fines of US$2,700 while carriers can be fined US$11,000 for each violation.

Now that the law is on the books, motor carriers involved in an accident while their driver uses a handheld cell phone are unlikely to find sympathy from judge or jury, and the judgments could be staggering, warned Angela Cash, partner with US law firm Scopelitis, Garvin, Light, Hanson & Feary, when speaking during a recent Webinar on legal issues facing motor carriers, hosted by HR and compliance software provider Compli.

Cash said that in the past, cell phone usage among drivers was so prevalent, that defense attorneys could argue that talking while driving was a reasonable thing to do. The new law changes all that.

“Now, the plaintiff attorneys will simply point to the regulation and they will have that as a sword to use and to put into the jury’s hands,” she explained. “It takes away an argument we had before (that talking on the phone while driving was reasonable), which oftentimes resonated with a jury.”

Tim Wiseman, managing partner at the same law firm, said while it’s not required by the DoT, motor carriers should implement some form of written cell phone policy for drivers – and other staff, as well. It should also advise against pulling to the side of the road to use mobile phones.

“A lot of states don’t allow standing on the sides of the Interstates. We see a lot of litigation with commercial motor vehicles parked at the side of the road where a passing motorist runs into the back end of him and ultimately, we’re on the hook because we violated state law that restricts parking of a motor vehicle on the shoulder,” Wiseman explained. “When implementing a policy, make sure you address whether they can or should pull over to the side of the Interstate to make a phone call because that sometimes creates even greater liability than using the cell phone in the first place.”

Wiseman also said managers, dispatchers and other support staff should be included in the policy and discouraged from contacting drivers when they’re behind the wheel.

“They need to be taught to avoid calling the driver when he’s on the road as much as they can,” he said. “Presumably (using GPS), the dispatcher knows when the truck is in movement, so the dispatcher should avoid calling or texting or communicating with the driver whenever they know that truck is in operation.”

Cash suggested carriers write into their policy a requirement for dispatchers to immediately determine when calling drivers whether or not the driver is parked in a safe spot or using a hands-free device.

“If the answer from the driver is no, have the dispatcher say they need to get the headset on and call back,” Cash suggested.

Having a written cell phone policy offers fleets some protection when facing scrutiny from a judge, jury or enforcement agency. Cash said some carriers even offer headsets to their drivers, which increases the likelihood of them adhering to the policy.

Still, despite the precautions, carriers with non-compliant drivers face a heightened risk of being sued now that the law has been passed. Cash and Wiseman pointed to a recent $24-million judgment against Coca-Cola, which didn’t involve a commercial vehicle but nonetheless highlights some of the risks.

A salesperson for Coca-Cola was actually in compliance with the federal law and using a headset, but allegedly was distracted when she was involved in a collision in Corpus Christi, Texas. The victim survived the crash but required lower back surgery that amounted to just over $100,000.

“The plaintiff attorney argued Coke doesn’t enforce its cell phone policy and encouraged the jury to send a message with a verdict,” Cash explained.

The message came in the form of a $10-million judgment for punitive damages and another $14 million for compensatory damages. Given the medical expenses were just over $100,000, Cash said she nobody would have “predicted the kind of result we saw.”

The judgment, even though it didn’t involve a heavy truck, should be an eye-opener for motor carriers, Cash said.

“If a verdict like this could be entered against a good company like Coca-Cola, what are the risks out there for my company?” she implored trucking companies to ask. “And this did not involve a commercial motor vehicle. Juries have a predisposition against big trucks, so I think we have to look at these verdicts even if they do come out of an unfavourable jurisdiction. The tide is turning and people are less tolerant of companies that allow employees to engage in distracted driving in the form of cell phone usage.”

Added Wiseman: “I think all companies out there are at risk of these types of completely ridiculous and unreasonable jury verdicts.”

Carriers that implement a written cell phone policy should have drivers sign on in agreement and may even want them to accept responsibility for fines or damages resulting from violation of the agreement, Wiseman suggested. He said it’s a good idea to have separate policies for company drivers and lease-operators, to ensure there’s no clouding of a lease-op’s independent status.

Cash said some carriers are adopting a complete ban on cell phones while driving, including hands-free devices.

“With a few more verdicts like Coca-Cola, you’ll see more lean in that direction,” she predicted.

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