Punitive Damages for Violations of Hours of Service
Punitive damages are designed to "penalize, punish or deter" conduct that shows "willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." Such conduct must be proven by "clear and convincing evidence." O.C.G.A. § 51-12-5.1.
Under Georgia law, gross negligence alone is not enough to meet the standard of O.C.G.A. § 51-12-5.1 . See, e.g., Carter v. Spells, 229 Ga.App. 441, 494 S.E.2d 279 (1997) (mere violation of a rule of the road); Coker v. Culter, 208 Ga.App. 651, 431 S.E.2d 443 (1993)(a little speed, a little beer (0.03 gr/%), a little distraction); Bradford v. Xerox Corp., 216 Ga.App. 83, 453 S.E.2d 98 (1994)(speeding on wet road, loss of control, no evidence of alcohol or bad driving history); Cullen v. Novak, 201 Ga.App. 459, 460(2), 411 S.E.2d 331 (1991)(running red light only).
Georgia case law includes several examples of a “pattern or practice” sufficient to support punitive damages in the trucking context. Those examples are not, however, comprehensive or exclusive. See, e.g.,Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 828(2), 435 S.E.2d 54 (1993)(driver in hurry to deliver load, paid for fast driving, quick deliveries, employer knew of two moving violations, and failed to check bad driving record as required by the Federal Motor Carrier Safety Regulations); J.B. Hunt Transport v. Bentley, 207 Ga. App. 250, 255(2), 427 S.E.2d 499 (1992)( “forced dispatch” system so that drivers could not refuse a load without losing job; driver required to take truck out again without requested brake repair).
There are also cases with less dramatically onerous facts in which there are still genuine issues of material fact for a jury to determine. For example, in Fowler v. Smith, 237 Ga.App. 841, 516 S.E.2d 845 (1999), evidence was sufficient to overcome a motion for partial summary judgment on a punitive damages claim where there was some evidence that the trucker may have violated 49 CFR § 392.22(b) by being stopped in the interstate's center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway, and that he did not turn on his tractor-trailer lights after it became dark and his main truck lights were not on at the time of the collision.While we recently won a federal district court order denying summary judgment on punitive damages where a trucking company failed to have a management system to monitor violations of hours of service rules, it is not yet published. Therefore, it is useful to consider the Georgia statute and case law in the light of other interstate trucking punitive damages in jurisdictions with similar standards for punitive damages.
A leading case on punitive damages regarding systemic failure to manage drivers’ hours in the interstate commercial driver fatigue context is Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005), in which the plaintiff overcame summary judgment on a claim for punitive damages. Among the several factors considered in determining that the defendants’ conduct constituted “reckless indifference to the rights of others” were failure to monitor the truck driver’s conduct, failure to conduct any investigation into the driver’s hours of service, re-dispatching the truck driver even though he had exceeded his hour of service limitations; and failure to have effective procedures in place to verify drivers' hours of service when the company knew that hours of service regulations were in place to protect the safety of the monitoring public.
Among the FMCSR factors considered were (1) that the truck driver was in violation of hours of service under 49 C.F.R. 395.3(b)(2) and that the company should have been aware that the driver's hours of service had exceeded legal limits; (2) that the truck driver was driving in a state of low mental arousal or fatigue at the time of the collision in violation of 49 C.F.R. 392.3; (3) that the truck driver falsified his time logs in violations of 49 C.F.R. 395.8; (4) that the trucking company failed to have an effective procedure in place to verify drivers' hours of service and that the company's flawed log auditing system allowed drivers to exceed hours of service limitations; (5) that the driver's conduct was outrageous as he knew the hours of service regulations were in place to prevent fatigued drivers from operating large and heavy commercial motor vehicles; and (6) that the company's policy, procedures and actions were outrageous in that their management and employees knew the hours of service regulations were in place to protect the safety of the monitoring public and knew hours of service was a problem in their operations
In Trotter v. B & W Cartage Co., Inc., 2d, 2006 WL 1004882 (S.D.Ill.,2006), the court considered the Federal Motor Carrier Safety Regulations and official Regulatory guidance issued by the Federal Highway Administration. There was evidence in that case of violation of hours of service rules, fatigued driving, falsification of driver logs, and failure of management to adequately monitor drivers’ hours.
Similarly, in Bridges ex rel Wrongful Death Beneficiaries v. Enterprise Products Co., Inc., 2007 WL 433242 (S.D.Miss.,2007), the court found that violation of hours of service rules and falsification of driver logs support denial of partial summary judgment on punitive damages.Sometimes trucking companies claim that they outsourced all auditing of driver logs to an outside safety consultant, but the outside audit consisted of little more than adding up the numbers and checking for fuel theft, without comparing driver logs to dispatch logs, bills of lading and trip receipts. Compliance with Federal Motor Carrier Safety Regulations cannot be abdicated by use of an outside consultant. In Esteras v. TRW, Inc., 2006 WL 2474049 (M.D.Pa.,2006.), a defendant trucking company delegated inspection and maintenance of trucks to a contractor and never checked to make sure the drag link and/or steering components of the tractor-truck were properly inspected and maintained in violation of the Federal Motor Carrier Safety Regulations. The court held that “a reasonable jury could conclude that failure to properly inspect and maintain the tractor/truck . . . constitutes reckless indifference to the rights of others . . . [and the] conduct was egregious as to warrant an award of punitive damages. . . .”
In considering whether a trucking company has willfully turned a blind eye to violations by its drivers to an extent that would support punitive damages, it is useful to look at:
- 49 CFR §392.1, which requires that "every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.
- 49 CFR §395.3, Official Regulatory Guidance:
Question 7: What is the liability of a motor carrier for hours of service violations? Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations.
Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur? Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers "permit" violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.