Depositions of commercial motor carriers

Unique issues come into play when deposing commercial motor carriers in light of both the practical and legal landscape involved. Understanding this can help attorneys prepare appropriately and know which questions to ask.

The Motor Carrier Landscape

Understanding the commercial transportation cycle remains an important first step in determining who you depose and why. Let's start there.

The cycle typically begins with the shipper - farm, factory, ship - seeking to move goods to consumers. Shippers have choices - directly hire a motor carrier to haul the load, haul the load themselves (i.e. large freight forwarders such as Wal-Mart), or hire a broker. The broker finds and hires the motor carrier. The motor carrier is the contracted carrier with the responsibility to transport the load to the receiver. Sometimes that contracted carrier may hire a subcontractor to haul the load for them. But it's important to remember the original contracted motor carrier remains responsible along with whoever was brought on later.

But... accidents happen along the way. According to the Federal Motor Carrier Safety Administration (FMCSA), 4,998 large trucks and buses were involved in fatal crashes in 2020 (the most recent available data). That equals nearly 14 fatal crashes per day - without factoring in non-fatal crashes, which are often catastrophic given the weight of tractor-trailers.

In motor carrier cases, any one of the players in the transportation chain may have had a role in an incident. Knowing this landscape is foundational to understanding the issues in such cases.

The Legal Landscape

California has important legal considerations every attorney should know in motor carrier cases. In Diaz v. Carcamo 51 Cal.4th 1148 (2011), the California Supreme Court reviewed direct claims against motor carriers where a plaintiff's claims arose solely from a trucker's negligent driving during the scope of his employment. The jury in Diaz divided fault between the trucker and the plaintiff as well as the carrier for negligent hiring and entrustment due to the trucker's past poor driving record, illegal status and lack of a valid CDL. The Diaz court reversed, changing the legal landscape of motor carrier cases in California.

The Diaz court held "...an employer's admission of vicarious liability for an employee's negligent driving in the course of employment bars a plaintiff from pursuing a claim for negligent entrustment ..." The Court further held that fault could only be divided between the plaintiff and the driver, because the carrier simply absorbs the driver's percentage of fault through the operation of vicarious liability. In terms of evidence, the driver's past and the company's failure to learn of it was considered prejudicial "character" evidence, since direct claims against the company were effectively eliminated. In other states, this would be known as the McHaffie Rule, named after the decision that spawned a line of decisions and legislation nationwide. McHaffie v. Bunch, 891 S.W.2d 822 (Mo.1995).

Importantly, Diaz did not entirely close the door on direct claims against a carrier, noting the decision did not pertain to punitive damages claims or cases involving a carrier's negligence with direct links to the accident, using mechanical issues as one example. Other examples could include failure to train a driver on a critical function or not enforcing hours of service rules if linked to the cause of the incident.

Given California's broad discovery parameters and the window of relevance Diaz left open, attorneys can and should delve into a carrier's operations, but carefully consider what information from a carrier's representative is necessary and ultimately helpful.

Deposition Framework

Before deposition, attorneys should secure key documents through discovery and a freedom of information request (FOIA) to the FMCSA. A deponent is required to bring documents with them but having them in advance helps to narrow issues and avoid surprises.

Attorneys should source their questions from mandatory industry safety regulations, starting with the Federal Motor Carrier Safety Regulations (FMCSRs), which are "applicable to all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce." 49 C.F.R. §390.3(a). Every motor carrier is required to know and comply with these safety regulations and ensure employees and equipment also comply. 49 C.F.R. §390.3(e)(1)-(3).

In addition, the California Commercial Driver Handbook includes more specific safety standards applicable to drivers and motor carriers licensed here. The Handbook is not simply a booklet of training suggestions. Rather, federal regulations require states to "provide an FMCSA pre-approved driver information manual" which includes "the substance of the knowledge and skills that drivers must have." 49 C.F.R. §383.131(a). In addition, even intrastate carriers (those operating solely within California) are required to follow the FMCSRs safety rules. Cal. Code Regs. tit. 13, § 1202.2.

Thus, every deposition of a carrier should begin with the acknowledgement that these minimum safety standards control the carrier and their drivers and equipment. Once it is agreed these regulations are authoritative, questions can then follow along these lines, using 49 C.F.R. § 392.14, as an example:

Q: Would you agree that under the FMCSR mandatory safety standards for drivers of commercial motor vehicles, a driver must exercise extreme caution if they encounter snowy or icy conditions while driving?

A: If they are driving, yes.

Q: And they are required to reduce their speed when such conditions exist, correct?

A: Yes.

A reasonable motor carrier should agree these important safety standards must be followed, and if not, it speaks volumes about the company's concern for safety or lack thereof.

Remember California Deposition Rules

Never forget that the company has the burden to produce the correct witness and ensure they can respond substantively to a well-crafted notice. Code of Civil Procedure Section 2025.230 states the entity shall "designate and produce... officers, directors, managing agents, employees" who are most qualified to testify as to "information known or reasonably available." Case law states "the deponent must make reasonable efforts to educate themselves about the subject matter they have been designated to testify about." Maldonado v. Superior Court 94 Cal.App.4th 1390 (2002).

"I don't know" is simply not an appropriate response. Attorneys can and should ask about the reasonable efforts made to obtain information and ensure the witness understands their testimony is binding on the company. If the witness does not know a driver's pre-trip inspection requirements, that means the motor carrier company does not know - a violation of federal safety regulations.

By considering these issues and building lines of questioning around authoritative safety standards, attorneys are uniquely positioned to make the company's most qualified person in a motor carrier case their best witness.