Every motorist has likely encoun-tered a truck hauling an over-size or overweight shipment onthe highway. These trucksoften have signs warning of“oversize load” and otherwarnings, such as flags andflashing lights. Sometimes,these loads seemingly con-sume the whole travel lane oreven protrude outside the desig-nated travel lane. Depending ontheir size, oversize loads are occa-sionally escorted by pilot vehiclesor the police. For obvious reasons, over-size and heavy shipments canpose an increased danger tothe motoring public andstrain the public infrastruc-ture by causing the prema-ture deterioration ofthe highway struc-tures. The typesof accidents in-volving oversizeand overweightloads vary fromroutine traffic ac-cidents to acci-dents caused bythe load itself. For instance,an oversize load may strike a bridge over-pass or sideswipe another vehicle, or couldbecome detached if improperly fastened.Accidents can also sometimes arise whenthe oversize load is simply traveling downthe highway, and a driver of an oncomingvehicle attempts to steer away from the over-size load to allow more space

and then inadvertently loses control. Often,claims involving oversize and overweightloads involve questions of whether the loadwas being legally operated at the time of theaccident. When accidents occur, motor carriersthat perform oversize load and heavy haul op-

erations frequently face legal issues be-yond those typically encoun-tered by motor carriers

transporting normal goods.Handling cases involving over-size and overweight shipmentsoften necessitates special at-tention because heavy haul

and oversize shipments aresubject to stringent regulations.

SPECIAL REGULATIONSGOVERNING OVERSIZE ANDOVERWEIGHT LOADS

Not only do trucks haulingoversize or overweight shipments

have to follow the “rules of theroad,” but they must also gen-erally follow the FederalMotor Carrier SafetyRegulations (FMCSR), aswell as state laws and regula-

tions governing heavy hauland oversize load opera-tions. Accordingly, theFMCSR and state laws gov-erning heavy haul andoversize load operationsregularly play a signifi-cant role in these types of

cases.For example, the FMCSR

forbid the obscuring of brakelights, reflective devices, or other conspicu-ity treatments by the load being hauled (49CFR § 392.33); the FMCSR require that acommercial truck parked along a highwayhave warning triangles placed around it (49CFR § 292.22); and the FMCSR forbid theoperating of a commercial truck during haz-ardous road conditions (49 CFR § 392.14).

Patrick Foppe and Kevin Fritz Lashly & Baer, P.C.

Defending MotorCarriers Performing

Oversize Load and HeavyHaul Operations

U S L A W www.uslaw.org FALL/WINTER 2015

U S L A W www.uslaw.org FALL/WINTER 2015

In addition, the FMCSR require that cargobeing transported is properly distributedand adequately secured and that the loadsecurement devices be periodically in-spected and adjusted, if necessary (49 CFR§ 392.9). Beyond the FMCSR, however, the fed-eral government has tasked each individualstate to enforce vehicle size and weight lawsto assure that vehicles traversing the high-way system do not exceed the size andweight limits specified by law (23 CFR §657.5). Therefore, it is critical to under-stand the state regulations governing over-size and overweight shipments, which canvary from state to state. A summary of thestate regulations governing oversize andoverweight shipments can be found atwww.wideloadshipping.com. The state regulations typically detailspecial warnings and markings that must beplaced on oversize shipments. Importantly,individual states, as opposed to federal gov-ernment, issue special permits for oversizeor overweight loads, to which strict adher-ence is required. The special permits con-trol the shipment’s width, height, weight,speed, route, date, time and other relatedmatters. Also, the permits may detail whenand how the shipment must be escorted byqualified pilot vehicles or the police.Further, state regulations governing theoversize and overweight shipments often re-quire the motor carrier to:• comply with all restrictions on the over-

size or overweight permit (otherwise thepermit is void);

• indemnify the state for all claims;• assume all responsibility for injury or

damages to public property; and• have more insurance than is required

under the FMCSR.

States are often immune from liabilityon claims related to issuance of oversizeload permits.1 On the other hand, thepenalties for motor carriers and drivers vio-lating the state laws and regulations can beharsh. As mentioned above, the motor car-

rier can be strictly liable for any damagecaused to public property during the courseof the shipment, even if the state dictatesthe route. State regulations that require themotor carrier to indemnify the state forclaims are typically enforceable, unless thestate agency exceeded its statutory authorityin making said regulations.2 Where stateregulations are silent as to liability to thirdparties, courts have held that such regula-tions do not impose strict liability upon themotor carrier and driver.3 However, if a motor carrier and itsdriver fail to comply with all the permit re-strictions, the permit is typically void, andthe shipment is deemed illegally on theroad. Obviously, this can have profoundramifications on a lawsuit brought by a partyinjured in an accident involving an oversizeand overweight shipment. Thus, when han-dling such a third-party lawsuit, it is ex-tremely important to confirm that all thepermit requirements have been fulfilled(i.e. that the correct load was on the correctroute at the correct date and time with allthe correct warnings and markings, etc.).

COMBATING VARIOUS LEGALTHEORIES IN PERSONAL INJURYLAWSUITS Injured parties will often try to use vio-lations of the FMCSR and state regulationsgoverning oversize and overweight loads toform the foundation of a negligence claimor punitive damage claim. Many states willallow the plaintiff to introduce the violationof an oversize or overweight permit as evi-dence of a breach of the truck driver’s stan-dard of care for a negligence claim.4

Nevertheless, the plaintiff still must provethat the breach of the truck driver’s stan-dard of care directly caused the plaintiff’sinjury. If a violation is asserted by a plaintiff,it is well advised to retain an appropriate ex-pert to address it. In addition, some states allow a viola-tion of state regulations governing oversizeand overweight loads to be the basis of anegligence per se claim.5 In other words, the

plaintiff need not prove that the truckdriver violated any standard of care, butrather only that the law was violated. Undera negligence per se claim, however, the plain-tiff still must also prove that the violationwas a proximate cause to the accident.Again, an expert might prove helpful in thisregard. Also, some states may allow excep-tions to a negligence per se claim where anunusual condition or emergency may ex-cuse the violation.6 It should be noted that a couple ofstates have rejected negligence per se claimson the basis that said regulations are prima-rily designed to protect the state from dam-age to public roads and not to protect anyindividual from private damage.7 Finally, courts have generally foundthat oversize load and heavy haul operationsdo not qualify as an ultra-hazardous or in-herently dangerous activity, which wouldimpose either strict liability or a non-dele-gable duty.8

CONCLUSION Defending cases involving motor carri-ers performing oversize load and heavy hauloperations presents unique challenges.Often, the motor carrier will be held liablefor property damages caused by the ship-ment to the public roadways and bridges. Inpersonal injury cases, it is important to de-termine whether the truck hauling the over-size or overweight load was violating anylaws at the time of the accident, especiallyunder the permit for the oversize or over-weight shipment. If any violations did occur,then it might be necessary to prove thatsuch violation was not the proximate causeto the accident. In the end, handling thesetypes of claims requires careful attention.

Patrick Foppe and KevinFritz are partners at Lashly& Baer, P.C. in St. Louis,Missouri, who focus ontransportation and generallitigation matters. Patrickcurrently serves as Chair ofthe DRI TruckingCommittee’s SpecialLitigation Groups andVice-Chair of theTransportation LawyersAssociation’s MembershipCommittee. Kevin is a pastChair of USLAW NET-WORK, Inc.’sTransportation Practice

Group and currently serves on its Board ofDirectors.

1 Crossno v. State, 726 N.E.2d 375 (Ind. App. 2000); State ex rel. Dept. of Highways v. Ray I. Jones Serv. Co., 475 P.2d 139(Okla. 1970); contra Graves v. State of Ill., 32 Ill. Ct. Cl. 623 (Ill. Ct. Cl. 1978).

2 State v. Daily Exp., Inc., 465 N.E.2d 764, 766 (Ind. App. 1984); State v. C & H Nationwide, Inc., 876 P.2d 1199 (Ariz.App. 1994).

3 McGlone v. Super. Trucking Co., Inc., 363 S.E.2d 736 (W. Va. 1987); Ettinger v. Denny Chancler Equip. Co., Inc., 910 P.2d420, 422 (Or. App. 1996).

4 BellSouth Telecomm., Inc. v. Bennett Motor Exp., L.L.C., 131 So. 3d 236, 244 (La. App. 2013); Vintila v. Drassen, 52 S.W.3d28 (Mo. App. 2001); see also Young v. Julian, 97 F. Supp. 370 (D. Del. 1951).

5 See Marich v. Bob Bennett Constr. Co., 880 N.E.2d 906 (Ohio 2008); King v. Morgan, 873 S.W.2d 272 (Mo. App. 1994);Leliefeld v. Johnson, 659 P.2d 111 (Idaho 1983); Lewie Montgomery Trucking Co. v. S. Pac. Co., 439 S.W.2d 691 (Tex.App. 1969); Byers v. Stand. Concrete Products Co., 151 S.E.2d 38 (N.C. 1966); Curtis v. Q. R. S. Neon Corp., 305 P.2d 294(Cal. App. 1956).

6 Marich, 880 N.E.2d at 915.7 Ettinger, 910 P.2d at 422; Allen Trucking Co., Inc. v. Blakely Peanut Co., 340 So. 2d 452 (Ala. App. 1976).8 Fike v. Peace, 964 So. 2d 651, 662 (Ala. 2007); Inland Steel v. Pequignot, 608 N.E.2d 1378 (Ind. App. 1993); see also Est.

of Knox v. Wheeler, 2005 WL 2043787 (N.D. Ind. Aug. 25, 2005); George v. H. James Fry Trucking, Inc., 1982 WL 6442(Ohio App. June 11, 1982).