Over the years, contractors have grown accustomed to managing those with whom they contract out work. They have learned to help protect themselves and their business by following good risk management practices, including interviewing, background checks and having contractual controls when hiring subcontractors. However, this has not always been the case in the area of dump trucks for hire. When hiring dump trucks, many contractors may only ask for and obtain a certificate of insurance.
There may be a number of reasons for this, including the following perspectives:
- Driver is only hired for a short time
- All they are doing is driving from point A to point B
- They have insurance
- Relatively low dollar value for work performed ($65 to $80 per hour)
Many contractors may believe that once a person provides proof of auto insurance, they have coverage, and no liability falls to them. The courts may not agree. Some recent cases have found that without a contract spelling out who is responsible, the primary contractor is the motor carrier.
As the motor carrier under the DOT, they have a number of obligations, including:
- Motor vehicle record checks
- Drug testing
- Maintenance of the vehicles
- Driver testing and licensing
- Driver files
Failing to fulfill these obligations can expose the primary contractor to liability. A recent case in federal court came out exactly that way. The contractor had hired a dump truck to haul sand from a quarry to the jobsite. While en route, the brakes failed and the truck was involved in a fatal accident. The contractor moved for summary judgment, asking to be removed from the case on the basis that the truck driver worked for the hired motor carrier, not them. The court ruled that, without a contract specifying responsibilities, the contractor was the motor carrier, and as such, the hired truck was their agent – thereby attaching liability for the truck driver’s actions to the hiring contractor. Not only did this create liability exposure in the civil case, but the DOT also cited the contractor for not having completed the same requirements.
For these reasons, a contractor who hires such trucks should have a written and signed contract acceptable to their attorney which clearly assigns responsibilities. Like any good construction sub agreement, these should also include hold harmless, defense and indemnity language and requirements for insurance (including limits). Policy limits should typically be at least as much as what the contractor carries for its own liability policies. Having the contractor named as an additional inured on these subcontractor’s policies is also a good practice.
Having a contract signed every time you need a truck for the day may seem like a hassle. If so, your attorney might help you by crafting a blanket contract to cover all work over a period of time, say a year. So, at the start of each season, you would have all potential truckers sign a contract and provide certificates of insurance. Whenever you request the truck, coverage verification may still be completed and a work order or other memorialization of the job may be affixed to the blanket contract.
A little extra effort can go a long way in protecting your company from claims and citations from the DOT resulting from hired trucks.
Acadia is pleased to share this material with its customers. Please note, however, that nothing in this document should be construed as legal advice or the provision of professional consulting services. This material is for general informational purposes only, and while reasonable care has been utilized in compiling this information, no warranty or representation is made as to accuracy or completeness. Distribution of this information does not constitute an assumption by us of your obligations to provide a safe workplace. Maintaining a safe workplace in accordance with all laws is your responsibility. We make no representation or warranty that our activities or recommendations will place you in compliance with law, relieve you of potential liability or ensure your premises or operations are safe. We exercise no control over your premises or operations and have no responsibility or authority to implement loss prevention practices or procedures.