Four Ways to Avoid a Nuclear Verdict

Motor Carriers are held accountable for what they should have known and done. In post-crash litigation, if a plaintiff’s attorney can instill anger in a jury, this becomes the accelerant to trigger a nuclear verdict. You don’t want to be painted as negligent; in other words, a bad actor that disregards regulations, doesn’t consistently follow your policies, or fails to correct unsafe driver behavior.  

These three keys will help carriers remain defendable and avoid triggering a nuclear verdict:

1. Exceed FMCSA regulations,
2. Follow company policies and procedures consistently, and
3. Avoid crashes through ongoing detection and correction of unsafe behavior.
4. Join a Transportation Association for compliance assistance

Apply these four keys to the areas most scrutinized in post-crash litigation, which are:

• Driver qualification,
• Drug and alcohol testing, and
• Driver supervision.
• Regulation Education

To reduce the risk of triggering a nuclear verdict, let’s review these four areas for foundational requirements, common infractions, and best practices that exceed minimum standards. 

Driver qualification

Each person who operates a commercial motor vehicle, non-CDL or CDL vehicle driver, must have a driver qualification (DQ) file that you must retain for the length of employment plus three years. A DQ file is required for your full-time drivers, occasional drivers, such as a “mechanic” or “dispatcher,” as well as staffing service drivers and leased owner-operators working under your DOT number.

The following documents need to be in the DQ file or a secure location with limited access by people central to the hiring process at your principle palce of business:

• DOT driver application compliant with 391.21*
• Initial motor vehicle records (MVRs) from each driver’s licensing authority in the past three years
• Certificate of driver’s road test* or a copy of the driver’s CDL
• Medical examiner’s certificate or proof of medical certification on CDL driver’s MVR*
• Medical variance/Skills Performance Evaluation (SPE)*
• Verification that the medical examiner was on the National Registry of Certified Medical Examiners*
• Safety performance history (SPH) inquiries per 391.23 for regulated driving jobs in the past three years.

*Indicates form/s must be in the DQ file before the driver operates a CMV in commerce.

You must also have processes that keep your drivers qualified. FMCSA minimum requirements leave you open to licensing changes between the annual checks.

Per 391.25, obtain at least annually the following records and place them in the DQ file:

• Driving records — Run MVRs for each state where the driver held a license no later than the driver’s first anniversary. Check that their license is still valid and has the required endorsements.
• Note of annual review — A carrier representative must scrutinize the MVR(s) and should include company performance issues.

Common violations

1. DOT application missing, partially completed, or doesn’t include items in §391.21
2. Safety Performance History (SPH) per 391.23 not properly completed within 30 days
3. Initial MVR not run or annual MVR and annual review not completed or late
4. MVR reveals the driver did not hold a valid license or no medical certification MVR for CDL-vehicle driver within 15 days of each DOT exam
5. Driver used while not medically qualified

Best Practices

• Pre-employment Screening Program or PSP report run with three years of violations and five years of DOT crashes
• Continuous MVR monitoring
• Use a driver management system or a third-party provider to monitor driver qualification and safety performance history investigations
• Annual mock audits of compliance with regulations and company policies and procedures

Drug and alcohol testing

Anyone who could operate a CDL vehicle for you is subject to the DOT and FMCSA drug and alcohol testing regulations, including leased owner-operators, fill-in or temporary drivers, or mechanics who road test CDL vehicles. Ensure that you’re not placing non-CDL CMV drivers in a DOT random testing pool.

Six DOT test types must be properly administered at the required time:

1. Pre-employment (382.301)
2. Post-accident (382.303)
3. Random (382.305)
4. Reasonable suspicion (382.307)
5. Return-to-duty (382.309)
6. Follow-up (382.311)



A carrier must also run a full Clearinghouse query before a CDL driver operates in commerce for the first time. A limited query each subsequent year is required to verify the driver is not prohibited from driving due to a drug or alcohol violation.

Carriers must also have a drug and alcohol testing program policy containing all 12 elements in 382.601(b) with a signed receipt that the CDL drivers received these educational materials. 

Common violations

1. Failing to implement a drug and alcohol testing program
2. Failing to test for drugs or alcohol randomly
3. Using a driver who has tested positive for a drug or alcohol
4. Using a driver who has not completed a return-to-duty process
5. Utilizing a driver before receiving a pre-employment result

Best Practices

• Run a full query for the annual query to avoid backtracking if something turns up on a limited query.
• Hire a third-party administrator to manage your drug and alcohol testing program.
• Deliver regular training on regulations and company policies and procedures.
• Conduct mock audits of personnel administering tests and driver notifications.

Driver supervision

One of the most challenging supervision issues is hours of service compliance. If your driver made a poor driving decision and was over hours or operating with a false log, this can give the plaintiff’s attorney a detonator for a nuclear verdict.

What stops a driver from falsifying their log or running over hours is a culture of compliance or fear of getting caught due to frequent audits. If neither is in place, the driver will not stop as the driver’s motivation (pay, get home, make delivery on time, dispatch pressure, etc.) is to keep driving.

ELDs, paper logs, and time records can be falsified in several ways, and you must have procedures to detect and eliminate falsification supported by a zero-tolerance policy.

Common ELD falsification methods:

1. Log out of the ELD and keep driving on the unassigned driver profile
2. Unplug the ELD while repositioning
3. Misuse of personal conveyance
4. Edit on-duty time to off-duty time
5. Share ELD logins among drivers

Driving behavior data from the engine control module or a video-event recorder should also be acted on because the data, better known as evidence, is being collected. The firehose of data is challenging to manage without a dashboard system.

Dashboard systems with event alerts help regularly monitor hard braking, lane departures, harsh cornering, following too close, hand-held cell phone use, and other unsafe behaviors. For example, J.J. Keller’s Encompass® system with the dash-cam option has artificial intelligence to detect events as they happen, and alerts are triggered to review the videos for possible coaching.

A key to driver supervision is proactive detection and correction of unsafe or non-compliant behavior before crashes occur. Auditing your progressive discipline program for consistent enforcement is another crucial element to avoid triggering a nuclear verdict.  

Best Practices

• Run regular ELD back-office system reports to detect falsification, such as mileage gaps, or contract with a third party for help in this area.
• Process unassigned driving events daily.
• Continuously audit your program and employ a well-enforced zero-tolerance company policy prohibiting falsification.
• Work with an ELD vendor that can help you protect your business.
• Use a video event monitoring system with timely coaching, training, and progressive discipline to reduce unsafe driving behavior drastically.

Regulation Education

It is practically impossible to be able to retain all the knowledge you need in regards to the FMCSA regulations to stay in compliance, so the best way to get help is from a recognized trade association. The NorthAmerican Transportation Association is a nationwide association that offers all the services that are mandatory to be in compliance at very cost-effective price. Most State associations base their membership by your total revenue or total miles driven. The NTA does not care how much your company makes nor how many miles they travel, they believe it is the driver who will make or break your company, so membership is based on the number of drivers shown on your MCS-150. The NTA offers free safety consulting which included in your membership. The NTA is also an official distributor of JJ Keller products and services. So, if the NTA cannot meet your needs directly, they have the best backup money can buy.

In closing

Failure to identify and correct non-compliance and unsafe behavior can be devastating for motor carriers by making them difficult to defend after a major crash. There is almost too much compliance and driving behavior data to manage yourself. Don’t hesitate to engage an expert such as NTA to help protect your business.