Image Image Image Image Image Image Image Image Image

Blog

18 Oct

By

Hours of Service Q & A:

October 18, 2013 | By |

Acuity Insurance Company recently published an article answer common questions regarding the new Hours of Service rules that took effect July 1, 2013.  With their permission, we are reprinting the article here for your reference:

 

The first phase of Hours of Service (HOS) changes mandated by the Federal Motor Carrier Safety Administration (FMCSA) took affect February 27, 2012, adding new criteria for on-duty time and penalties for exceeding allowable time.  The second phase took effect July 1, 2013, and included more restrictive rules in two areas: mandating rest breaks and limiting “restarts.”

 

Here are the answers to some common questions about the new regulations:

 

30-Minute Rest Breaks Rule Summary:  If more than eight consecutive hours on duty have passed since the last off-duty period of at least half an hour, a driver must take an off-duty or sleeper-berth break of at least 30 minutes before driving.

 

Q: Why are these required?

A: The FMCSA found that breaks reduce risks, including accidents and safety lapses, cause by long driving shifts.

 

Q: Do I have to spend the break resting?

A: No, but you must be off duty.  For instance, a lunch break could count as your 30 minutes.

 

Q: Can the break be spent loading or unloading, as long as I’m out of the cab?

A: No.  Time spent loading or unloading is considered on duty in most cases.

 

Q: Do I have to break right at the eight-hour mark if my shift is longer than eight hours?

A: No.  You can break earlier, but you must not drive more than eight consecutive hours.  For instance, a 10-hour drive can be broken into two 5-hour shifts separated by a break.

 

Q: Is break time included in the 14-hour duty limit?

A: Yes.  The 30-minute break cannot extend the work day.

 

34-Hour Restart Rule Summary: Drivers can only use the 34-hour restart once every seven calendar days (168 hours) to restart the 60- or 70- hour clock.  In addition, the restart must include two nighttime periods of 1 a.m. to 5 a.m., using the driver’s home terminal time zone.

 

Q: Why was this change made?

A: The purpose of the rule change is to limit work to no more than 70 hours a week, which is aimed at reducing fatigue, crashes, and driver health problems.

 

Q: Who will be affected by the two0night provision?

A: Only drivers who drive nights and work more than 60 or 70 hours in a week will be impacted.

 

Q: What is the minimum length of time a driver has to be off duty to get credit for the two nighttime periods?

A: The minimum period is 34 hours.  Most drivers driving daytime schedules will be able to obtain the two nights in a 34-hour restart, if needed.  Only drivers who regularly drive overnight and work more than five nights a week will need to take longer to restarts to obtain the two nights off.

 

Q: If a driver works 10 hours a night, six nights a week and takes the seventh night off, does he then have to take an extra night off?

A: No, the driver would be working 60 hours in seven days and would not need a restart to start working again on the eighth day.
Q: Are the two nighttime periods based on the driver’s terminal time or local time, when different?

A: Drivers’ logs are based on the time zone of their home terminal, so the two night periods are set by the time at the home terminal.

 

Note: These illustrations are not legal advice.  If you have a question about a specific scenario or are looking for an official interpretation related to these changes, please contact the Federal Motor Carrier Safety Administration at (609) 275-2604.

15 Aug

By

Understanding Automobile Liability Pollution Coverage

August 15, 2013 | By |

The following article was originally written by Craig F. Stanovich, co-founder and principal of Austin & Stanovich Risk Managers, LLC, and is being reprinted with the permission of AmWINS Group, Inc.  It originally appeared in AmWINS’s July 2013 Client Advisory. 

On a rainy Monday morning, the interstate highway has been closed due to a serious traffic accident involving a pickup truck and a truck-tractor hauling a gasoline tank semi-trailer (tanker). The pickup truck driver attempted to pass the tanker, lost control due to the wet conditions, and then cut in front of the tanker, causing both vehicles to veer off the road. Fortunately, no one was injured, but the accident caused the tanker to overturn and split open, releasing its cargo – the gasoline. In addition, the pickup truck’s diesel fuel tank and oil pan ruptured, releasing both diesel fuel and motor oil into the environment. The state environmental authority has issued a cleanup order to both the owner of the pickup truck and the owner of the tanker.

The Pickup Truck

The Auto Liability Policy. The pickup truck is owned by S&S Nurseries, Inc. with liability coverage provided by Green Mutual Insurance Company “Green” via an ISO Business Auto Coverage Form (March, 2006 edition) with no endorsements. S&S has tendered the state’s cleanup demand to Green.

The Denial. Green admits the pickup is a covered auto but categorically denies any responsibility for defense or payments for the cleanup, citing as its basis that cleanup is not “property damage,” the cleanup demand is not a “suit,” the costs of cleanup are not “damages” and that, in any event, the policy excludes pollution.

A Failure to Communicate. Is Green’s denial proper? No. Green has completely failed to consider the second auto liability insuring agreement – a promise to pay “covered pollution cost or expense” caused by an accident resulting from a covered auto. Green has also ignored a critical part of its obligation to defend, which includes a duty to defend alleged “covered pollution cost or expense.”

Pollution Exclusion – Cargo. Despite “covered pollution cost or expense,” certainly the pollution exclusion relieves Green of any responsibility in this matter. But even a cursory review of the pollution exclusion plainly reveals it does no such thing. The pollution exclusion applies only if pollutants are being transported or towed by the auto, moved into or from the auto, stored or processed in the auto, or the pollutants are otherwise in transit by or for S&S. What’s more, the pollution exclusion clearly states it does not apply to the release of fuels or lubricants needed for the normal operation of the auto (such as those contained in the fuel tank and the oil pan).

Pollution Exclusion – The Cargo of Another. Coverage applies to pollutants transported, but not in a covered auto (in this case, the gasoline being transported by the tanker, which is not an S&S covered auto). The pollution exclusion does not apply if the pollutants are released because an S&S auto caused the overturn of the other auto (the tanker), provided the accident does not happen on S&S premises.

Coverage Found. In short, the auto liability policy with Green provides S&S with a defense, as well as coverage (to the extent S&S is liable) for the cost of the cleanup of the diesel fuel, motor oil andgasoline, such cleanup costs subject only to the policy limit.

Covered Pollution Cost or Expense. S&S seems to have received a huge benefit from covered pollution costs or expense. If this provision of the auto liability policy is so all encompassing, why does anyone need to purchase auto pollution liability coverage?

Cleanup. Covered pollution cost or expense includes any cost or expense from any demand or regulatory requirement that an insured must clean up or respond to pollutants. It includes any claims by or on behalf of a government authority, such as the cleanup demand made on S&S by the state environmental authority. Put another way: whether the cost of cleanup may be “damages” because of “property damage” or whether an environmental authority’s demand is a “suit,” or even if S&S’ negligence is irrelevant, the auto liability policy will respond to defend and pay costs, subject to all other policy limitations and exclusions, for the cleanup demand made against S&S by the environmental authority.

Restrictions. Covered pollution cost or expense does have its restrictions. Similar to the pollution exclusion, covered pollution cost or expense does not apply and provides no benefit if the pollutants are being transported or towed by the auto, moved into or from the auto, stored or processed in the auto, or the pollutants are otherwise in transit by or for the insured. Enter the need for the “pollution buy-back” endorsement.

The Tanker

Auto Liability Coverage. The owner of the tanker is Pump & Go, Inc. doing business as P&G, a chain of retail gasoline stations. Auto liability coverage is provided by Gas Haulers Insurance Company via an ISO Business Auto Coverage Form (March, 2006 edition) with several endorsements1, including Pollution Liability – Broadened Coverage for Covered Autos (CA 99 48 03 06 edition). P&G has also tendered the state cleanup demand to Gas Haulers Insurance Company.

Acceptance of Coverage. Gas Haulers Insurance Company accepts the tender of defense by P&G of the environmental authority’s cleanup demand. The claims person handling the P&G claim for Gas Haulers Insurance carefully reviews the second insuring agreement – including the definition of covered pollution cost and expense, as well as the pollution exclusion – and determines up to that point, the policy provides no coverage for P&G as the pollutants were clearly being transported by P&G when released. However, the Gas Haulers Insurance claims person reviews the entire policy, including the “pollution buy-back” which is actually the Pollution Liability – Broadened Coverage for Covered Autos endorsement.

Pollution Buy-Back. This endorsement deletes most of the pollution exclusion from P&G’s Business Auto Liability – resulting in coverage for bodily injury or property damage, provided the liability for bodily injury or property damage is not the liability assumed by P&G in a contract or agreement. In other words, if P&G has assumed the liability of others, regardless of whether the liability assumed is in an “insured contract,” the pollution exclusion continues to apply, even with the “pollution buy-back.”

Covered Pollution Cost or Expense. The “pollution buy-back” also changes the policy definition of covered pollution cost or expense. P&G has the benefit of pollution cost or expense coverage even when the pollutants released are being transported or towed by the auto, moved to or from the auto, stored or processed in the auto, or otherwise in transit by or for P&G. It is because of this change in the definition of covered pollution cost or expense that the Gas Haulers Insurance claims person has accepted the tender of defense on behalf of P&G – the demand for cleanup by the state environmental authority falls squarely within the re-defined (via the “pollution buy-back”) “covered pollution cost or expense.”

Owned Premises. By chance, some of the pollutants that escaped from P&G’s tanker in the accident have migrated onto P&G’s own property – a retail gas station that was near the highway where the accident occurred. Will Gas Haulers Insurance deny the cost of cleaning up P&G’s own property as part of this cleanup demand? The claims person for Gas Haulers Insurance finds an exclusion in P&G’s auto liability policy that applies to property owned by P&G. After originally preparing a letter of denial to P&G, the Gas Haulers Insurance claims person looks more closely at the “pollution buy-back” and notices that it also removes the owned property or “care, custody or control” exclusion of the policy to the extent the claim involves pollutants. Due to this change in the owned property exclusion, Gas Haulers Insurance Company does pay for the cost to clean up P&G’s own property – its retail gasoline station.

Conclusion

In order to understand the need and scope of the auto liability Pollution Liability – Broadened Coverage for Covered Autos (CA 99 48 03 06) endorsement, it is important to first grasp the breadth and restrictions found in the promise to pay “Covered Pollution Cost or Expense.” Auto liability pollution coverage can be fully appreciated only after recognizing how “Covered Pollution Cost or Expense” works in conjunction with the Pollution Liability – Broadened Coverage for Covered Autos.

Editor’s Note

The CA 99 48 may not be made available to all insureds with potential cargo-related pollution exposures. Some insureds may be seeking additional, separate or higher limits and perhaps pollution-related coverage beyond that provided by CA 99 48. In those cases, separate coverage may be arranged.

1 MCS-90 Endorsement can be reviewed at http://www.fmcsa.dot.gov/forms/print/MCS-90.htm

Legal Disclaimer: Views expressed here do not constitute legal advice. The information contained herein is for general guidance of matter only and not for the purpose of providing legal advice. Discussion of insurance policy language is descriptive only. Every policy has different policy language. Coverage afforded under any insurance policy issued is subject to individual policy terms and conditions. Please refer to your policy for the actual language.

06 Aug

By

Creating a Compliant Authorized Passenger Policy

August 6, 2013 | By |

Frequently clients inquire about the limitations and allowances of passengers inside their truck.  We at the Navigator Truck Insurance Agency recommend that non-employee passengers not be allowed in vehicles operated under your authority.  However, if a passenger program is considered an essential element in the retention of quality drivers, we recommend that you have a well planned, well documented, and consistently followed passenger policy in place as a risk management practice to reduce your exposure to claims made by non-employee passengers.  In addition a passenger policy should also comply with requirements outlined in the Federal Motor Carrier Safety Act.

Per Section 392.60(a) of the Act, drivers must have specific authorization from the motor carrier in order to bring a passenger along in the truck.  The motor carrier should issue their authorization to transport in writing and include the following elements:

  1. The name of passenger
  2. The beginning and ending points of transport
  3. The date when the drivers authority to transport a person will expire

Written authorization is not required when a fellow employee has been assigned to ride along in a vehicle or if the driver is transporting someone who is providing aid as the result of an accident or emergency.

The Department of Transportation’s interpretation of the Rule provides that the written authorization does not have to be in the truck, but simply on file at the motor carrier’s office.  However, it would be a best practice to require that a copy accompany the driver.

Would you like assistance developing an Authorized Passenger Policy?  Call us now at (800) 596-TRUCK (8782).  At the Navigator Truck Insurance Agency we work hard to be accessible, helpful and result oriented.

06 Jul

By

EEOC Issues Guidelines Pertaining to Criminal Checks

July 6, 2013 | By |

Are you one of the many employers (some studies say up to 92%) who use criminal background checks as a part of the hiring process?  If so, you may wish to re-evaluate this process and proceed with great caution.  Many employers rely upon these checks to keep their clients, employees, resources and the general public safe.  However, recently adapted new guidelines, published by the Equal Employment Opportunity Commission (EEOC) in April 2012, make clear that companies should be particularly careful when referencing criminal backgrounds during the hiring process.

While the EEOC does not include ex-offenders as a protected class under Title VII, they do include race and ethnicity.  And there is concern that because segments of these protected classes (specifically black and Hispanic males) have higher incarceration rates, it may follow that these individuals would experience disparate treatment or disparate impact as a result of reliance upon criminal background checks in the hiring process.

The new guidelines, found at www.eeoc.gov/laws/guidance/arrest_conviction.cfm outline those practices which would be deemed “suspicious” under Title VII and the process of investigating claims of discrimination.

Some highlights of the guidelines include:

  • Discouragement of using arrest records to exclude potential candidates, as there is a very big difference between being arrested for a crime and actually being convicted of having committed one.
  • Discouragement of employers from asking about convictions on employment applications and instead, only inquiring into conviction for crimes that might be related to the position they would be hiring for (i.e. felony embezzlement.)
  • Clarification that State laws will not supersede the EEOC’s guidelines and that compliance with State laws is not an acceptable defense to an EEOC charge, unless those State laws comply the EEOC’s guidelines, as well.

Important to note is that, if done with a sound policy that was developed in accordance with the law, conviction information can be referenced during the hiring process.  However, if your company intends to proceed in this manner, we highly encourage you to first develop a company policy after consulting with an attorney who specializes in employment law.  If you would like to be directed to an attorney, please contact our office at (800) 596-TRUCK (8782).  At the Navigator Truck Insurance Agency we work hard to be accessible helpful and result oriented.

06 Jun

By

Michigan Now Using 20-Factor Test to Identify Independent Contactors

June 6, 2013 | By |

Motor Carriers, and other companies, operating in Michigan please take note:  Effective January 2013 Michigan’s Workers’ Compensation Agency Department of Licensing and Regulatory Affairs began using the IRS’s “20-Factor Test” to determine if an individual is an independent contactor or an employee of an organization.

Employers must comply with state and federal employment and tax laws, including withholding certain taxes, contributing toward unemployment and providing workers compensation insurance for employees; requirements which would not apply to independent contractor’s whose services are being hired by the motor carrier.

It is vital that organizations who utilize the services of independent contractor’s familiarize themselves with the “20-Factor Test” and review any concerns with their attorney, accountant and insurance agent to ensure compliance.  States are and will continue to ramp up their efforts to identify those companies who are misclassifying workers, as they now have a greater financial incentive to do so.  When 2014 Fiscal Year budget was passed not only did it include continued funding to help states locate misclassified workers, but additional funds were made available to provide “high performance bonuses” for those states most successful at identifying and prosecuting employers who are misclassifying their employees.

A complete list and description of the “20-Factor Test” can be found here.  The 20 topics discussed include:

1.) Instructions

2.) Training

3.) Integration

4.) Services Rendered Personally

5.) Hiring, Supervising and Paying Assistants

6.) Continuing Relationship

7.) Set Hours of Work

8.) Full Time Required

9.) Doing Work on Employer’s Premises

10.) Order or Sequence Set

11.) Oral or Written Reports

12.) Payment by Hour, Week, Month

13.) Payment of Business and/or Traveling Expenses

14.) Furnishing of Tools and Materials

15.) Significant Investment

16.) Realization of Profit or Loss

17.) Working for More Than One Firm at a Time

18.) Making Service Available to General Public

19.) Right to Discharge

20.) Right to Terminate

Do you have questions concerning the classification of your employees or the handling of independent contractors?  Call us today at (800) 596-TRUCK (8782).  At the Navigator Truck Insurance Agency we work hard to be helpful, accessible and result oriented.

06 May

By

Jason’s Law

May 6, 2013 | By |

Jason’s Law

 

Recently out on the road I passed a truck with a sign posted on his truck that read, “I support Jason’s Law.”  Working so close to the trucking industry, I was a little embarrassed that I was not familiar with this law.  A quick Google search informed me that “Jason’s Law” is and initiative to provide increased safety for our hard working truck drivers while out on the road.  The bill was passed by the Senate on March 13, 2012 by a 74 to 22 vote.

For anyone unfamiliar, here is a run down of how the bill got its start and where it hopes to go:

1.)    It was created to honor Jason Riverburg, who was tragically robbed and murdered in March 2009 while staging for a delivery he was running early for.  Corporate policy made it impossible for him to park and wait to unload at the delivering location, so instead he stopped at an abandoned gas station twelve miles away; one he had heard another driver recently use.

2.)    The law aims to provide increased protection and safety for drivers who must stop in order to comply with JIT requirements or hours of service laws by requiring companies to allow drivers to stage inside safe facilities for up to twelve (12) hours before or after pickup/delivery.

3.)    The law proposes to create off highway “bullpens”, granting drivers a safe location to stage in the event a company is unable to comply with the requirement to allow on-sight staging.

4.)    Additionally, the law hopes to increase the availability and security of public rest stops.

5.)    After the law passed in March 2012, the Department of Transportation is now in the process of surveying the currently available parking facilities within each State to see if they are adequate for accommodating driver need.

6.)    This law is supported by the following organizations:

  1. American Trucking Association (ATA)
  2. Owner-Operator Independent Driver Association (OOIDA)
  3. National Association of Truck Stop Operators (NATSO)
  4. American Moving and Storage Association (AMSA)
  5. Commercial Vehicle Safety Alliance (CVSA)

To learn more about Jason’s Law visit their Facebook page at https://www.facebook.com/pages/Jasons-Law-HB-2156-SAFE-PARKING-FOR-TRUCKERS/192353475073, follow them on Twitter at https://twitter.com/JasonsLaw or their website at http://jhlrivenburg.com/cgi/wp/.

06 Apr

By

The Importance of Maintaining and Accurate MCS-150

April 6, 2013 | By |

Do your company’s Unsafe Driving and Crash Indicator Behavior Analysis and Safety Improvement Categories (BASICs) percentiles on the FMCSA’s Safety Measurement System (SMS) look inaccurate to you?  It could be that you are in need of updating your company’s Vehicle Miles Travelled (VMT) and Power Unit (PU) data on your Motor Carrier Registration Form (aka: MCS-150.)

Accurate VMT and PU information is vital to properly asses your level of exposure.  If your VMT data is from 2010 or older, it was not used in your calculations for the January SMS snapshot.  Instead, the level of exposure defaulted to average power units over the last 18 months.  Obviously, this could impact your percentiles in the Unsafe Driving and Crash Indicator BASICs.

To update your MCS-150 with 2012 VMT and PU information, go to: https://li-public.fmcsa.dot.gov/LIVIEW/PKG_REGISTRATION.prc_option.  Under the “Existing Registration Updates” section, choose the first option: “I need to update my USDOT number registration information or file my biennial update”.

You may wish to note that the SMS website is updated monthly, so your MCS-150 changes will not be reflected on that site until the next monthly update.  You can find the schedule of SMS updates at http://ai.fmcsa.dot.gov/sms/InfoCenter/Default.aspx#question30897.

For questions regarding your SMS snapshot or MCS-150, please call our office at (800) 596-TRUCK (8782).  All of us at the Navigator Truck Insurance Agency work hard to be accessible, helpful and result oriented.

06 Mar

By

FMCSA Hours-of-Service Enforcement Will Not be Delayed

March 6, 2013 | By |

On February 26, 2013 the Federal Motor Carrier Safety Administration has announced that it will not delay enforcement of the new hours-of-service rules.  This was in response to the American Trucking Association’s request to delay enforcing the rules until three months following the ATA’s currently pending lawsuit is decided.

Currently the new hours-of-service rules are expected to go into effect July 1, 2013.  However, the ATA, Commercial Vehicle Safety Alliance and the Owner Operator Independent Drivers Association have all requested that the implementation of the new rules be delayed until after the Court of Appeals for the District of Columbia Circuit has reviewed and made a ruling on the case requesting the new changes be overturned.  The argument is that by waiting until the court has made its decision, individuals who will ultimately be impacted, including shippers, carriers and FMCSA-funded state enforcement agencies, will not be forced to spend time and money on training and adaptation of the new system only to potentially have changes handed down by the court.

You can learn more about the hours-of-service regulations and final rule by visiting http://www.fmcsa.dot.gov/rules-regulations/topics/hos/index.htm.

19 Dec

By

Legalization of Medical Marijuana Does Not Impact DOT Regulations

December 19, 2012 | By |

In light of recent state laws authorizing the use of medical marijuana, it is important to note the Department of Transportation Office of Drug and Alcohol Compliance Notice originally written by Jim Swart and published October 22, 2009 remains appropriate today.  This notice explains that while the Department of Justice has made a specific set of recommendations to Federal prosecutors for pursuing criminal cases with respect to medical marijuana, those recommendations do not effect or modify the Department of Transportation’s regulated drug testing program.  Despite legalization in some states for medicinal purposes, marijuana continues to be listed in Schedule I of the Controlled Substances Act.

Per the original notice: “The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize ‘medical marijuana’ under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.”

They further outline that Section 40.151 states:

“40.151 What are MROs prohibited from doing as part of the verification process?  As an MRO, you are prohibited from doing the following as part of the verification process:

(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act (e.g. under a state law that purports to authorize such recommendation, such as the ‘medical marijuana’ laws that some states have adopted.)”

Compliance with these laws is vital to ensure the safety of your employees and the general public.  If you or your drivers have questions regarding pre-employment screening or drug testing, we encourage you to contact an account executive today.  At the Navigator Truck Insurance Agency we work hard at being accessible, helpful and result oriented.

06 Dec

By

Educating Family and Friends in Post Accident Procedures

December 6, 2012 | By |

Recently one of our local news stations posted a breaking news story to their website warning that a crash between a tractor-trailer and car had shut down a major highway.  The details were tragic.  The car’s passenger had passed away and nearly everyone else involved in the accident suffered injuries.  While the facts were not yet clear, there was no indication that the semi driver was at fault.

Near the bottom of the page a “comments” section appeared and one comment in particular caught my attention.  It had apparently been made by a child of the truck driver involved in the accident and read something to the effect of, “My father was the driver of the semi involved in this accident.  He feels terrible that he caused someone’s death and hopes the family will forgive him.”

I have no doubt that comment was left by the driver’s son or daughter with the very best of intentions in a moment of shock.  But, I couldn’t help but wonder whether its existence might inadvertently incriminate their father.  Would these two lines impact the handling of the claim?

I called a few claims adjustors to discuss this specific example and get their opinions.  During our conversations I learned that the harmful impact of comments made by third parties not directly involved in an incident may be limited, but still exists. While the statements themselves may not be admissible as evidence, there is anecdotal support to suggest that once permanently etched on the wall of the virtual world, comments such as these could land themselves in the hands of a judge or jury member, ultimately influencing his or her opinion of the driver.

While we may be unable to control the behaviors of others, perhaps we can influence them.  As a company owner and professional driver, it is important that you are proactive in training your staff, family and friends on proper post accident procedures.  Before your drivers find themselves involved in a crash, coach them on the “dos and don’ts” after a crash.  Remind them that neither they, nor their family or friends, should discuss the situation online in any capacity.  Reminders can be provided to employees in many ways, such as through an employee handbook, a paycheck stuffer, email or during a safety meeting, all of which we would be glad to help you to develop.  If you would like assistance, please contact our office at (800) 596-TRUCK (8782).  All of us at the Navigator Truck Insurance Agency work hard to be accessible, helpful and result oriented.