The owner operator legal help guide questions and answers for issues plaguing truck owners in the trucking industry.
Joe Fried, an Atlanta trucking specialist lawyer gives help to owner operators for legal recourse.
MORE LEGAL HELP FOR TRUCKERS
- LEGAL ADVICE FOR THE COMPANY-DRIVER
- LEGAL ADVICE FOR THE OWNER OPERATOR PT 1
- LEGAL ADVICE FOR ALL CDL HOLDERS
Owner Operator Issues With CDL
CDL Pulled For No Apparent Reason – Unfair Treatment to Truck Driver
QUESTION: My name is Bruce Comeau. My CDL was pulled for no apparent reason.
I’m from California. I was an owner-operator. I had been using a wheelchair off and on to get around since around 2007.
In early 2010 I got my class A (CDL) physical renewed. I took a copy as required to DMV. They were upset because I was in a wheelchair and it said on physical that I was using a CPAP machine.
Recently, I made a trip to New York. When I returned, I received a Letter from the DMV telling me I no longer had a CDL, which meant I unknowingly drove without a CDL until I got home. They never showed me any thing that would disqualify me to hold a CDL.
I went to DMV court on this matter a number of times over for a little over a year. One of the judges that heard my case was in a wheel chair and told me if he can’t drive a truck, then I can’t.
I was also told that if I hired a lawyer, I could get my CDL back. I couldn’t afford a lawyer. Also they pulled my CDL before I ever went to court.
They kept telling me to do something and that would get me back my CDL. I would only to be told to do something else, again and again and again. This included test drive in a class C truck (my own SUV), numerous medical cards, doctors notes.
I even had the DOT in Washington DC call the court house and talk to the clerk. The DOT said there was no reason for them to take my CDL.
At the last hearing, they told me to rent a Class A truck and bring it in and show them that I can drive a Class A truck. I told them I couldn’t rent a Class A truck without a Class A license!
I was told then to go to truck driving school and then they would give me my CDL back.
This wasn’t possible because I can’t get a Learner’s permit because the DMV won’t let me get it without showing them I can drive.
I’ve been told to get a disability lawyer, as this is discrimination. Every time I ask why, they pulled my CDL. They just show me the commercial drivers handbook and say I didn’t meet the minimum physical-requirements for a CDL (I did say I passed the physical numerous times). When I ask them to show me in the handbook where it says I’m unfit to drive a commercial truck, they would tell me they don’t have to show me.
On the notice of findings and decision it says “you do not meet the minimum physical requirements for a CDL”.
As a result of losing my CDL the following has happened:
- First I lost my trucking business including my 2003 T2000 Kenworth tractor and my Monan trailer. Unable to make money, I was unable to pay my truck and trailer payments, bills, taxes.
- Then I lost my credit rating due to unpaid bills. This has also affected my mom’s credit as she was letting me use her credit cards for the down payment and some repairs. She had to file bankruptcy as I was unable to repay the money I had borrowed. I also owe the IRS and New Mexico taxes that I couldn’t afford pay.
Is there anything you could do to help me with this?
I can get this case reopened if you think there is something that can be done.
The Doctor that gave me my physical and had called me and asked if the DMV had pulled my Class A. They told me that a number of drivers had their CDL’s pulled by the same DMV court office. All of these cases were for drivers not being their ideal weight.
Thank you. Any assistance and advice would be much appreciated.
by Bruce Comeau
(San Dimas, CA)
ANSWER: Your situation sounds so unfair. I feel your frustration.
I am not licensed in California but you really need a California lawyer if this is ever going to be cleared up.
The State, not the FMCSA, controls licensure.
The state has to follow certain minimum standards and rules set out from FDOT and FMCSA, but CA could be applying or misapplying some California specific regs. I know you said you can’t afford a lawyer.
I am not an expert on what is available out there, but I would contact the state bar and ask about what pro bono programs are available.
- MORE LEGAL ADVICE FOR THE OWNER-OPERATOR
- LEGAL ADVICE FOR THE COMPANY DRIVER LEGAL
- LEGAL HELP – QUESTIONS AND ANSWERS FOR THE TRUCKER
Pay Issues – Owner Operator Legal Help
A Rotten Percentage Deal For Trucker
QUESTION: Is it legal for a trucking company to cut money off the top of what a load pays plus a percentage of driver’s pay? The rate the driver is making is thirty cents less a mile than the rate paid to the company plus he pays his percentage.
Patsy Hazlehurst, MS
ANSWER: Patsy, I don’t know whether that is legal or not because it depends on the paperwork that define the relationship between the driver and the company and the relationship between the carrier and the driver. Either way, sounds like a bum deal.
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Carrier Cheats Driver
QUESTION: I am an owner-operator, living in FL. In May of this year, I leased on to a company in Tampa FL which hauls animal feed INTRASTATE ONLY. They only have a DOT#, no MC#.
The job turned out to be different than originally described to me and some of the unloading procedures were in my opinion unsafe and way more work than we were being compensated for.
They took bobtail AND liability out of my check every week which I was always under the assumption was the carriers responsibility when you operated under their authority.
The last week of June I told the owner in the middle of the week not to plan me for the following week as I needed to re-evaluate the situation.
The following week I told her I wouldn’t be back and she seemed ok with that. I was told that my final settlement would be mailed out to me that Friday.
Of course it didn’t come and every time I called her I got a different ridiculous excuse which went on for 3 weeks. I figured she owed me about $1000. When I finally got the settlement there was no check but a statement that claimed I hit a customer`s fence/gate 3 weeks before I quit. She stated the claim was $1159 and she paid it so my statement was negative!
I never had the opportunity to argue my case. I never saw any pics, any accident report, any estimate or a copy of the check she claims she cut for the fence repair. She just took the money from me. Also like I stated earlier she was charging me weekly for liability insurance, so if there was a legit claim shouldn`t it have gone through the insurance or at least had a deductible?
Jim B, Clearwater, FL
ANSWER: I’m sorry you had to go through this. Sounds like they just plain cheated you. At this point, as an owner operator, the only option you really have is to file a small claims case against them. You can do this yourself, but I always recommend getting a lawyer if you can.
I would force them to identify the customer and provide all the claim information including proof of payment.
I would also then contact the customer and verify. As for who pays for insurance, that depends on your lease agreement. It should clearly state the answer.
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Owner-Operator Independent Contractor vs Employee Status for W.C.
QUESTION: I am looking for legal help on an insurance matter.
I am a independent contractor. I was leased to a trucking company that added a workers compensation policy and the adjuster had a meeting with us and told us all it was completely legal.
The company re-classified all owner operators as company drivers and changed our pay from 80% to 65% equipment rental, 15% drivers pay. Our lease stayed the same except for the page that covered the percentage of pay.
The lease still stated that we were no way related to or a part of the company as a employee. They charged us all a flat fee of $35.00 a week . This policy went in to effect on July 01, 2012.
I was in a head on wreck where I rolled my semi and trailer to avoid a head on. The company went back to my start date of February 2012 and changed my pay from 80% to the 65% equipment rental 15% drivers pay for workers compensation.
I received $189.00 a week pay and had 2 knee surgeries. I have since been told that the policy is illegal and that I am entitled to a lot more.
It states in my lease that contractor not employee of carrier so by this being in there how can I qualify for workers comp. I think this is fraud.
by Kurt Perkins, IN
ANSWER: This sounds like a legal cluster you know what. You are either a company employed driver or a leased driver. You can’t legally be both.
Whether this was done purposely in an effort to defray or shift costs to drivers or it was not due to a misunderstanding, it does not sound legal to me.
I recommend that you contact the insurance commissioner’s office in your state and discuss with them. Also, you may want to discuss the matter with a local lawyer who will need to investigate the matter further and do legal research on the best way to proceed.
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Owner Operator Compensation
QUESTION: My truck was hit by another truck in Texas, while parked. His insurance company asked for an estimate which I provided. I’m an owner operator and my truck will be at the shop for at least four days. Am I entitled to compensation for lost wages from his insurance company? (I’m a Missouri resident)
ANSWER: I am not a Texas lawyer, but it would seem that they should provide you with (or pay you for) a replacement truck while yours is being repaired. This would allow you to continue to earn your living and mitigate your damages. In my experience, proving lost income in a situation like this is quite difficult to do, but where it can be done in a way that is not legally speculative you can recover it if you have otherwise mitigate damages – in other words done everything on your end to limit damages.
Problem with Receiver
QUESTION: I have been in the trucking industry for over 20 years, first as a company driver then an owner-operator and now a company owner.
In all my years of driving, I have never had major problem with a receiver until now. I picked up a load and had a delivery time for 6am in Indiana and was on time. They told me to remove the seal from the trailer. I asked them to come out and check seal they refused and said they had the seal number and that was good enough.
I finally got into a dock at 8am., paid $230 for a lumper service to unload me. After 6 hours of being told that they would not release the dock lock from my truck, I had had enough and called the sheriff department.
When they arrived they said they could not help me. The receiver finally released my trailer and said that #1, they would not sign off that the seal was intact because they did not see it and that we will be held responsible for any shortages.
My question is do we have any legal recourse for not releasing the trailer after 6 hours of being unloaded and not to mention if there is a shortage of shipment? (Wayne, Roundhill, KY)
ANSWER: Another tough one. If the facts are as stated, I believe there could be legal recourse for the delay. That said, I would recommend letting tempers calm down before going in that direction. If there is not an issue as to shortages, I would likely not advise litigation. That said, I would recommend documenting everything as thoroughly as possible
Maybe No Recourse on Contract Issue
QUESTION: I am an owner-operator in Pennsylvania. Last year, I decided to switch from hauling steel to hauling frac sand. I talked to a company who told me that I would have to have my own pneumatic tanker. We agreed on this, and they guaranteed me the work.
I signed on with them and invested $75,000 in a tanker. I sat for 2 months never being offered a load. Do I have any recourse?
ANSWER: Unless they guaranteed you something in writing, I am afraid you most likely have no practical recourse. If you have a writing, it will need to be evaluated by a lawyer.