The FMCSA issued revised guidance on personal conveyances. The revisions are pretty straight forward and you should familiarize yourself with them. With that being said, here are some of the highlights and things you need to understand.
1. Allowing personal conveyance is not a requirement. It is discretionary. If you do allow personal conveyance you need to be careful and take steps to avoid potential civil exposure for misuse of the “personal conveyance” designation.
If a carrier allows personal conveyance it is extremely important that a written policy be put in place that clearly defines what is allowed and not allowed and imposes a mileage limit on how far a CMV can be moved during a personal conveyance. The FMCSA does not impose mileage restrictions; however, a reasonable restriction should be in place. As a starting point, you may want to look to Canada. Canada limits personal conveyance to distances less than 75 km –approximately 50 miles. In my opinion, this is a reasonable limit and allows you to point to other jurisdictions in support of your position should the need arise.
Once you have a policy, the policy MUST be enforced uniformly and consistently. If you have a driver who is trying to find a place to rest and bypasses a couple of adequate places which happen to be on the same road he will need to travel to get to his next load, you have a potential problem. In this scenario, it is very easy for a plaintiff lawyer to argue that it was not a personal conveyance but the driver was instead advancing the load to benefit the carrier. In this scenario, the driver was not really off duty as required for a personal conveyance but was on duty and the carrier could be liable for the driver’s actions during this time. I can think of numerous scenarios where the personal conveyance designation could be abused so you should work with your legal counsel to create a policy and that you enforce that policy consistently. The worst thing you can do is have a policy that you fail to enforce. This allows opposing counsel to show that, in essence, no such policy was in place and even if it was it was intentionally disregarded. This never ends well. By creating a policy and having it enforced consistently you can help mitigate this argument and limit potential civil liability.
2. The personal conveyance must, of course, be for personal use. I know this is obvious but, as noted above, the driver can’t use the personal conveyance designation to advance a load.
3. The CMV no longer has to be “laden” for the movement to qualify as a personal conveyance. This is a significant change from the earlier regulation and allows much more freedom.
4. The driver no longer has to return to his or her last on duty location following a personal conveyance. A driver may not resume his on duty status following a personal conveyance regardless of the location of the CMV.
5. Movement at the request of law enforcement can be a personal conveyance. It should be noted that if a driver is requested to move the vehicle while off duty can be listed as a personal conveyance. For example, if the driver is in a restaurant and is requested to move the CMV such move would be a permissible personal conveyance provided such movement does not advance the load or provide additional benefit to the carrier.
Please note that the items listed above are just a few of the issues addressed by the FMCSA. Accordingly, we suggest that you review the FMCSA revised guidance on personal conveyance and consult your attorney to develop a related policy should you chose to allow personal conveyance.
J. Bradley Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers.Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.
800-333-DRIVE (3748) or www.interstatetrucker.com