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July 25, 2022 • Source: Litify

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Driver Shortage, FMCSA's Young Driver Pilot Program and the Liability Complications

July 27, 2022 • Source: Joe Pappalardo, Gallagher Sharp LLP 

Chances are the majority of items you buy, or the parts to make them, were at one time on a truck. The importance of trucking to the economy is undeniable, as is a lingering problem facing the industry: a driver shortage that is only getting worse.

The American Trucking Association estimates that there is a truck driver shortage of 80,000 drivers, a historic high. And the shortage is estimated to surpass 160,000 by 2030. The fleet of current drivers is growing older. There are indications that, increasingly, current and eligible drivers are unwilling to do the job due to factors such as long and uneven hours, the grueling nature of driving in traffic, detention at shippers and receivers, and increasing regulatory demands.

Statistics show that the average age of a truck driver is 48. About 83% of drivers are men. Turnover is high and retention is low; about 40% of drivers stay on the job for less than one year and only 27% remain drivers for two years.

Motor carriers—in cooperation with trucking organizations, state and federal authorities, shippers, receivers, and other stakeholders—are attempting to address the problems with better pay and benefits, creative and flexible scheduling, use of team drivers, and increased dedicated routes. But it is clear that more needs to be done to address the driver shortage and attendant problems.

Looking to Younger Drivers

In response, part of Congress’ Infrastructure Investment and Jobs Act—signed into law by President Joe Biden in November 2021—mandated that the Federal Motor Carrier Safety Administration (FMCSA) establish an apprenticeship program for qualified 18-, 19-, and 20-year-old drivers, which would allow these drivers to operate commercial motor vehicles for interstate travel as long as certain conditions are met.

On Jan. 14, 2022, the FMCSA, in accordance with Congress’ mandate, established the Safe Driver Apprenticeship Pilot Program. For participating motor carriers and drivers, the normal requirement under Federal Motor Carrier Safety Regulation (FMCSR) 391.11(b)(1), restricting drivers under 21 years of age from interstate travel, will be waived, allowing qualified 18-20-year-old apprentice drivers that meet the program requirements to operate commercial motor vehicles in interstate travel.

In order to be part of the program, qualified motor carriers must apply on the FMCSA website, and the program will be limited to 3,000 drivers. It should be noted that the FMCSA currently does not restrict younger drivers from operating in intrastate commerce, though state laws vary in this regard.

In addition to having proper operating authority and minimum levels of insurance, the requirements for a motor carrier to be a part of the program include: not being classified as a moderate or high risk motor carrier by the FMCSA; a satisfactory safety rating from the FMCSA; no open enforcement actions; and below national average crash and driver/vehicle Operations Out-of-Service rates.

The requirements to be an apprentice driver include not having the following in a two-year period preceding the driver’s date of hire: more than one license; license suspended/revoked; any conviction of a traffic violation (other than parking) in relation to a traffic crash; and any conviction of other enumerated violations related to drugs/alcohol or negligent/reckless driving.

Before the apprentice driver is allowed to operate a commercial motor vehicle alone, the program requires that the apprentice driver go through two probationary periods with the motor carrier: an initial 120-hour period of on-duty time (80 hours driving a commercial motor vehicle) and an additional 280-hour period of on-duty time (160 hours driving a commercial motor vehicle). During both of these probationary periods, the apprentice driver must be accompanied at all times by an experienced driver (as defined under the program), and the commercial motor vehicle being operated by the apprentice driver must have certain technologies installed, such as forward facing video cameras and a governed speed of 65 MPH. Additionally, the motor carrier is responsible during these probationary periods for ensuring the apprentice driver is competent in the categories enumerated under the program, including but not limited to speed and space management, safety awareness, hours of service compliance, backing and maneuvering in close quarters, and pre-trip inspections.

The program will last three years, and the FMCSA will report its findings to Congress. Participating motor carriers will have reporting requirements, including monthly reporting to the FMCSA on the apprentice driver’s activity. The FMCSA has not yet announced the application process for the program, however, interested motor carriers should not wait to begin reviewing and, if need be, implementing the necessary policies and procedures to participate and comply with the program.

Some in the industry are concerned about the idea of putting 18-20-year-olds in trucks that a significant segment of the population already perceives as larger, heavier, more difficult to drive, and, therefore, less safe than passenger vehicles. It is crucial that any pilot program or eventual permanent program be carefully designed to address these concerns.

Of course, there is risk to allowing younger drivers to operate commercial motor vehicles in interstate commerce. Surely, there will be claims and litigation implications—plaintiffs’ lawyers will argue that younger drivers are less safe. Negligent hiring, retention, and training claims will invariably be presented. Time will tell how these claims will be addressed by the defense. But it is evident that claims and lawsuits involving young drivers will need careful attention regarding training, monitoring of behavior, and witness preparation.

Meanwhile, the FMCSA, responding to a mandate from Congress, will launch this intriguing pilot program to address a serious issue facing the trucking industry and indeed the entire country. It will be interesting to see what develops.


Never Say Never: The Benefits of Video Data Recovery for Claim and Legal Professionals

Source: Jared Fegan, Senior Project Consultant, IT Hardware, Envista Forensics

The rise in popularity of security cameras on residential and commercial properties has led to a proliferation of video footage and other data. Fueled by their low cost and easy installation, along with smart phone enabled remote monitoring technologies, the home security system market is anticipated to be near $55 billion USD by 2026. With these systems now being ubiquitous, the data recorded by security cameras on private and public properties will inevitably grow to play a key role in providing integral evidence following vandalism, arson, and other criminal acts.

The recovery of data stored on various technologies, such as Digital Video Recorders (DVRs) or Network Video Recorders (NVRs), can be the difference between proving if a slip and fall occurred, where a fire started, how it was started, or what caused a structural collapse. Footage prior to the claimed event can also assist with providing what was located onsite or confirming contents in the impacted areas. Additionally, despite damage frequently occurring to the cameras and recording equipment itself, data can often be recovered to provide crucial evidence to support a claim or case.

Utilizing Video Data Recovery in Claim Investigations

Although many assume that all video footage is recorded in a readable format, there are a few key points to understand that may pose challenges when attempting to use this data in a claim investigation. First, it is important to know that video surveillance equipment does not have unlimited capacity, and when the storage is full, the data overwrites itself by default. This means that time is of the essence, and it is important to obtain all video evidence quickly and preserve it for extraction.

In addition, raw video data is in a proprietary format which often requires specialized decoding, called a CODEC, so that the information is readable and understandable. A CODEC, which is short for coder-decoder (think of it as a digital Rosetta Stone), translates the raw data into a format readable and understandable by a host computer. Without the CODEC or working recording equipment, the data will not be viewable. Add to that the possibility that data is encrypted and the equipment or a key is needed to decrypt the data. In these situations, it is important to partner with experts who are experienced with recovering critical data and converting it into a usable format.

Why Is Conversion Needed and Why Do You Need an Expert?

The proprietary format used by recording devices can make the data images that comprise a "video" only viewable by using specific software, typically video player software provided by the manufacturer. Other generic video software may not play the data at all, return errors that need to be resolved, or the software may open the initial image file but not play any video. Without data conversion, the video quality and one's ability to review footage will be extremely restricted.

For claim and legal professionals involved in investigations where data plays a critical role, having properly recovered and converted video footage can greatly aid in providing the cause of an event, establish a non-biased timeline, and afford supporting evidence to what occurred. The data can verify statements, confirm contents prior to the event, and often show what caused the loss or transpired that led up to the event.

Damaged Digital Video Recorder Devices

Depending on the type of incident that may have occurred, the recording equipment may be visibly damaged and thought to be unrecoverable. For example, following fires or extreme vandalism, if cameras are damaged but the data is stored elsewhere, or the recording devices are retrievable, experienced video forensic experts can assist with locating the equipment and making the determination if data recovery is possible. Obtaining data from a damaged recording device may require equipment restoration, obtaining an exemplar recording device to transplant the storage media into, or adapting to the situation to retrieve the data.

Digital Video Enhancement Requirements

Sometimes, in addition to recovery and converting data, video evidence requires enhancement to provide the necessary answers. Not all video or photo evidence can be enhanced and as a general rule, the higher the resolution of the raw data, the better the end result. Resolution is a measurement of the output quality of an image, usually in terms of pixels, dots, or lines per inch. Most commonly, this is expressed in Dots Per Inch (DPI) or Pixels Per Inch (PPI).

Utilizing Video Data Recovery

The best way to understand the value of utilizing video data recovery is to walk through a common claim scenario. Using a commercial fire loss as an example, you will often have expert fire cause and origin investigators arrive at the scene shortly after law enforcement opens the scene. In their initial scan of the evidence, the fire investigation team notices a smoke-damaged DVR and power cord. The evidence is tagged and retained for further analysis, with the DVR and Hard Disk Drive (HDD) being stabilized. Because the video footage was quickly flagged as evidence, video forensic experts were able to access the data and extract the footage. Further, as the data was not in a viewable format, conversion was necessary.

Another situation where video evidence can be extremely valuable is when looking to gain insights into suspicious fires or events. Take for example a small fire in a physician's office where an employee is suspected of arson. Forensic fire investigation staff conduct their investigation and locate a fire-damaged DVR containing surveillance footage. Following professional decontamination and restoration to stabilize the HDD, including sourcing an exemplar DVR to install the HDD into, expert video forensics professionals were able to access data on the drive and extract the footage. Still shots taken from the video show an individual, the suspected employee, entering prior to the time the fire was initially observed. Key features of the suspect were provided, verifying identity, and video of the suspect's activities onsite at the location and time of departure was provided on portable media, directly aligning with the timeline of the fire.

In summary, video footage is widely available today due to the popularity of low-cost, mobile-friendly security monitoring systems. This data, while extremely valuable to claim and legal professionals must be properly and promptly handled by skilled forensic data recovery experts. Even if there is visible damage to the equipment, expert data analysts can recover and preserve the data.


Perrier & Lacoste, LLC Hires New Attorneys, Sean M. McCallister and Paul W. Freese

April 5, 2022 • Source: Perrier & Lacoste, LLC

Perrier & Lacoste, LLC is pleased to announce that Sean M. McCallister and  Paul W. Freese have joined its firm. 

Sean has a Bachelor of Science in Psychology and Juris Doctor from Louisiana State University. Sean has experience managing insurance claim files from inception to trial, with a specific focus on defending claims involving trucking and commercial insurance policies. 

Paul was born and raised in New Orleans, Louisiana and received his law degree from Loyola University New Orleans College of Law. Paul serves as counsel for insurance carriers and corporations in the fields of transportation, personal injury, wrongful death and premises liability. 

P&L is thrilled to have Sean and Paul as part of their team. Please join in welcoming them to the firm. 


Zarwin Attorneys Secure Dismissal of Catastrophic Injury and Wrongful Death Claim

July 13, 2022 • Source: Ted Schaer, Zarwin Baum DeVito Kaplan Schaer Toddy

Ted Schaer, and Noah Shapiro of the regional law firm of Zarwin Baum, recently secured dismissal of a Philadelphia civil action against their client, a local Fortune 100 Company (the “Company”), involving multiple catastrophic personal injury and wrongful death claims.

The action arose out of a motor vehicle accident on I-95 in late 2019 that occurred when a former employee of a subsidiary of the Company operated his personal vehicle while intoxicated, having a blood alcohol level nearly twice the legal limit. The former employee rear-ended another vehicle while traveling close to 100 mph, killing two and severely injuring two others. Prior to the accident, the former employee had attended a holiday party held by a vendor of the Company at a restaurant where he consumed alcohol. Following the holiday party, the former employee continued to drink, first at the restaurant, then at a nearby local bar. The Plaintiffs sued the former employee for negligence and the restaurant and bar for violations of the Pennsylvania Dram Shop Act, alleging the former employee was visibly intoxicated when served. Plaintiffs brought suit against the Company and its vendor, alleging that both had co-sponsored the holiday party and were therefore liable for serving the former employee while visibly intoxicated, for failing to monitor his consumption of alcohol, and for failing to prevent him from driving while intoxicated.

Zarwin was retained shortly after the accident, prior to suit, to coordinate an investigation and develop a litigation strategy. When suit was filed, Zarwin filed preliminary objections in the form of a demurrer, seeking dismissal of the Plaintiffs’ claims against the Company for failure to state a claim for which relief could be granted. Zarwin’s arguments on behalf of the Company were: (1) that under Pennsylvania law a non-liquor licensee could not be held liable under the Pennsylvania Dram Shop Act; and (2) that Pennsylvania courts do not recognize social host liability for the service of alcohol to non-minors. In support of its arguments on behalf of the Company, Zarwin relied on a long line of Pennsylvania case law beginning with the Supreme Court’s holding in Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973) and ending with the recent Superior Court holding in Klar v. Dairy Farmers of America, Inc., et al, 2021 PA Super 252 (2021). In response, the Plaintiffs argued that the issue was one of vicarious liability and common law negligence for failure to monitor and control an employee’s consumption of alcohol. The court rejected Plaintiff’s arguments and granted the Company’s preliminary objections in full, dismissing all claims against them.  

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