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49 CFR 390.13

The Federal Motor Carrier Safety Regulations, at 49 C.F.R. §390.13, on  Aiding or Abetting Violations, provides, "No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter."

 While occasionally referenced in discussions of the regulations, this section has gotten relatively little attention in reported case decisions. Many people seem perplexed as to what, as a practical matter, it means.

 A dictionary definition of "abet" is "to encourage, support, or countenance by aid or approval, usually in wrongdoing:to abet a swindler; to abet a crime." The most relevant definition of "aid" is, "to promote the progress or accomplishment of; facilitate."

Combing through reported court decisions that mainly discuss what does not constitute aiding and abetting violations, here are some points for reflection in representing victims of catastrophic truck crashes.

  • The regulation says "no person" rather than "no motor carrier."  Thus, one may consider whether it applies to a shipper, receiver, broker, freight forwarder, company owner or officer, other other person.
  • Evidence of an extended period of reckless disregard for systemic safety issues may create an issue of liability of another party for "aiding and abetting" violations.  In one case, there was a claim against a company owner individually because the corporation, under his direction, engaged in conduct over a prolonged period of time that evidenced a conscious disregard for potential harm, hired drivers who did not speak English, failed to conduct background checks, allowed drivers to disregard logging rules, failed to train its drivers on Federal Regulations or to enforce the regulations, and relied upon being able to close its business and reopen as a new entity if the FMCSA continued to fine the company for violations.  Schlegel v. Li Chen Song, 547 F. Supp. 2d 792 (N.D. Ohio 2008). 
  • If there is evidence that a broker, shipper, etc., intended to facilitate driving time violations, that might qualify as "aid or abet." However, with no evidence showing that a broker intended to assist either carrier or driver in violating regulations limiting safe hours of driving, fact that broker might have brought about arrangement which made alleged violations possible was insufficient to show broker's knowledge that carrier and driver would violate regulations. Schramm v. Foster, 341 F.Supp.2d 536 (D. Md., 2004).
  • Nail down granular details of facts, relationships, indications of state of mind, etc. Liability for aiding and abetting depends upon "the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered." A broad allegation without a great deal of supporting detail will not work. Restatement (Second) of Torts § 876; Leon v. FedEx Ground Package System, Inc.,  2016 WL 836980 (D.N.M., decided Feb. 16, 2016). We have heard truck drivers tell in confidence of the callous insistence of companies and shippers upon delivery schedules that could not be met without gross safety violations. Getting anyone to say those things in a deposition would be a huge challenge.

This is not comprehensive. It just scratches the surface of the ways in which 49 C.F.R. §390.13 may be applied along with other statutes and regulations in trucking liability.

 


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