Articles

Defending the Difficult to Understand Driver: Using The Law to Exclude or Eliminate Reference to Language Issues

Christopher M. Kelly | The Transportation Lawyer

Rodriguez v. Transportes De Carga FEMA, S.A. de C.V., No. 5:18-CV-114, 2020 WL 6938330, (S.D. Tex. 2020).

In May of 2023 the American Trucking Association (“ATA”) noted that the trucking industry is currently facing a shortage of more than 78,000 truck drivers, coupled with a need to hire 1.2 million new drivers over the next decade to meet increasing freight demands.¹  The industry is becoming creative in responding to a multi-year driver shortage including turning to companies which import workers from foreign countries to bring qualified drivers to the United States through existing immigration programs.  Immigration and relocation agencies have recruitment offices worldwide looking for truck drivers due to demand in the United States.²  One such agency estimated it would bring 1,600 truckers from as many as 60 different countries to the United States in 2019.³  As the demand for drivers continues to increase, immigration and relocation agencies set up exhibits at the American Trucking Association’s Management Conference & Exhibition, and continue to play a role in serving the driver shortage. Temporary or seasonal workers from foreign countries come to the United States through the H-2B program, run by the Department of Labor and Department of Homeland Security. These employees work during peak periods, and then return to their home countries. Motor carriers, which require year-round help, can hire drivers through the EB-3 program, which allows qualified foreign workers to obtain permanent resident status in the United States under certain conditions.⁴

In addition, many trucking companies have terminals in the United States and another terminal just across the border in Mexico. Such companies often hire Mexican CDL drivers whose services to transport a load start in Mexico but end in the United States, alleviating some of the pressure to find drivers in the United States. This type of operation is legal under the code of federal regulations which provides:

Admission without entry or payment of duty. Trucks, busses, and taxicabs, however owned, which have their principal base of operations in a foreign country and which are engaged in international traffic, arriving with merchandise or passengers destined to points in the United States, or arriving empty or loaded for the purpose of taking out merchandise or passengers, may be admitted without formal entry or the payment of duty. Such vehicles shall not engage in local traffic except as provided in paragraph (c) of this section.⁵

As long as drivers do not pick up a load in the United States and deliver it in the United States they are in compliance with the law.  However, as with domiciled citizen truck drivers, these drivers can be involved in accidents. Similarly, domiciled immigrant truck drivers who are still learning English can also be involved in accidents.  The issue that we as defense trial attorneys encounter more and more often are drivers, whether Mexican, Russian, Somalian or Laotian, who speak English as a second language, and some of them very poorly, and require interpreters for depositions and struggle to read English.

Some industry experts warn against hiring immigrants that don’t speak or read English “well” to avoid making cases which already involve a target defendant, in tough venues, even more difficult.⁶  However, the driver shortage creates sufficient pressure to cause many industry members to hire drivers regardless of how accented the driver’s English may be and despite how difficult it may be to communicate with the driver.  Some even have programs to assist the driver to better understand English and road signs in the United States with notebooks that translate signs and tests to insure the driver can navigate English signage.  Further, it is worth considering that anti-discrimination laws come into play related to drivers who can speak and read some English. The issue of whether their language skills meet the standard of “sufficient” to converse with the general public and read roadway and traffic signs and respond to official inquiries is often dealt with quite differently from company to company which opens the door to claims. Companies that routinely turn away accented or foreign born drivers could easily face discrimination claims.  Accordingly, with the increase in immigration picks up the defense bar can expect more Mexican drivers, and foreign born but domiciled in the United States drivers, who may have communication challenges to be behind the wheel of trucks involved in accidents.

Opposing counsel is quick to assert lack of qualification of drivers who are Mexican or foreign born and speak English as a second language because it leads to claims of negligent hiring, training, supervision and entrustment. If such claims are proven they tend to increase the value of a case because juries react strongly to companies they view as having questionable hiring, training and supervision practices.  Drivers who speak English as a second language or broken English are also more susceptible to being cited, even if not necessarily at fault, due to the communication barrier and assumptions by enforcement that they are not qualified under the Federal Motor Carrier Regulations if they cannot articulate clearly what happened.  The regulations provide that a person shall not drive a commercial motor vehicle unless he/she is qualified and that occurs if:

(b)       Except as provided in subpart G of this part, a person is qualified to drive a motor vehicle if he/she—

(1)       Is at least 21 years old;

(2)       Can read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records;

(3)       Can, by reason of experience, training, or both, safely operate the type of commercial motor vehicle he/she drives;

(4)       Is physically qualified to drive a commercial motor vehicle in accordance with subpart E—Physical Qualifications and    Examinations of this part;

(5)       Has a currently valid commercial motor vehicle operator’s license issued only by one State or jurisdiction;

(6)       Is not disqualified to drive a commercial motor vehicle under the rules in § 391.15; and

(7)       Has successfully completed a driver’s road test and has been issued a certificate of driver’s road test in accordance with § 391.31, or has presented an operator’s license or a certificate of road test which the motor carrier that employs him/her has accepted as equivalent to a road test in accordance with § 391.33.⁷

Opposing counsel latch on to the second requirement, that a driver must read and speak the English language, as soon as a driver needs an interpreter for deposition or speaks English that is difficult to understand and cannot read portions of the regulations presented to the driver in English.

If unfamiliar with the regulations, and dealing with a Mexican driver, you can also hear arguments from Plaintiff’s counsel that the driver with a Mexican issued commercial driver’s license is not qualified to operate and drive in the United States. As a defense attorney it is important to know the law related to Mexican drivers because of the frequency of their involvement in cases. Further, the defense of other foreign born drivers, who are domiciled in the United States (“US”) and who have a US Commercial Driver’s License but may have communication issues due to English being their second language, can also benefit from understanding case law dealing with and the regulatory history of Mexican CDL drivers.

Mexican nationals who have a Mexican Federal Commercial Driver’s License (“M‑CDL”) may operate commercially in the United States without having to obtain additional licensure issued by the United States government.⁸   This rule comes from a reciprocity agreement between the United States and Mexico that has been around for over 30 years.⁹   On November 21, 1991 the United States Department of Transportation (USDOT) and the Mexican Secretariat of Communication and Transport (MSCT) executed the Memorandum of Understanding between the Government of the United States and Government of the United Mexican States Relating to Recognition and Validity of Commercial Driver’s Licenses and Licencias Federales de Conductor (MOU).¹⁰   The MOU was amended in January 2017 such that the original should be read in conjunction with its amendment.¹¹   Legally, the MOU operates as an extension of 49 C.F.R. § 383.23(b)(1), which states exceptions to the general Commercial Driver’s License requirement.¹²   In fact, a footnote to the regulation importantly states that a driver holding “a new Licencia Federal de Conductor issued by Mexico is prohibited from obtaining a non-domiciled CDL, or any other type of driver’s license, from a State or other jurisdiction in the United States.”¹³

Mexican CDL holders are still subject to the English Language requirements of the Federal Motor Carrier Safety Regulations (FMCSR).  As noted above, generally drivers under the FMCSR must be able to read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”¹⁴  However, the United States Court of Appeals for the D.C. Circuit made an important observation in the Int’l Bhd. of Teamsters v. Peña ¹⁵  case regarding Mexican CDL holders who do not speak English fluently.¹⁶  There, the D.C. Circuit reasoned that the English-speaking requirement is a commercial motor vehicle operating standard, whereas Mexican CDL reciprocity merely satisfies a commercial motor vehicle licensing standard.¹⁷

In 2020 the Southern District of Texas in the Rodriguez v. Transportes De Carga FEMA, S.A. de C.V. clarified that Section 391.11(b)(2) is intended “to operate as adjudications of the factual questions that must be resolved to show a violation” of it.¹⁸  In Rodriguez, the Texas-domiciled plaintiff sued a Mexican motor carrier, making allegations that the defendant was liable under respondeat superior for injuries the plaintiff suffered when he was in an accident with defendant’s driver because defendant violated the FMCSRs by employing a driver who could not speak English and was, therefore, unqualified.

In Rodriquez the plaintiff was a citizen of Laredo, Texas and was traveling north on a four-lane highway.  Defendant Transportes De Carga FEMA, S.A. de C.V. was a Mexican corporation that employed driver Abel Martin Sanchez.¹⁹  Sanchez was a Mexican citizen and commercial truck driver with a valid Licencia Federal de Conductor, Categoria B. Sanchez was not a named defendant but was deposed and testified related to his vehicle pre-check and route that day and was able to explain in detail his pre-trip inspection and his normal route.²⁰  Sanchez when hired completed various pre-hire assessments and evaluations, including an in-field driving assessment, in order to obtain employment. Sanchez, however, could not speak, write or understand the English language.²¹  Sanchez generally traveled a route for the defendant that involved driving from Nuevo Laredo, Mexico, to various locations in Laredo, Texas and he was familiar with the locations he would travel to in Laredo, Texas. On the date of the accident Sanchez delivered to a warehouse that he was familiar with and was dispatched to pick up a full trailer at a warehouse that was on an unfamiliar route to bring a load back to Mexico.²²  As he was driving to the unfamiliar warehouse he was traveling north along the same highway as the plaintiff and changed lanes from the left to the right and into the plaintiff’s lane colliding with the plaintiff’s vehicle. Various details of the accident were disputed including speed, whether there was a failure to brake, hours of service issues, qualifications of the driver and the extent of damages.²³

The defendant moved for summary judgment on the plaintiff’s argument that Sanchez was unqualified to operate a commercial vehicle in the United States.²⁴  This was an important motion related to the value of the case and the ability of the plaintiff to argue that the company had unsafe practices. The defendant submitted over 100 pages of personnel documents in which Sanchez passed multiple pre-hire assessments, psychometric testing, a criminal background check, a drug test and an in-field driving assessment before the defendant offered employment.  Plaintiff did not challenge this evidence but argued that because Sanchez did not speak or read English he was unqualified to operate a commercial motor vehicle as a matter of law.²⁵  The court disagreed, concluding that “absent some evidence that Sanchez’s inability to speak English somehow caused the accident, the Court will not hold Defendant, a Mexican company, liable for hiring a Spanish-speaking driver for a short trip across the nation’s Southern Border.”²⁶

The court in Rodriquez held that the Department of Transportation “did not intend 49 C.F.R. § 391.11 (b)(2) to form the basis of a liability rule in a case like this one.”²⁷  The court noted that a review of the regulation’s history demonstrated that the scope of the requirement was intended to be narrow, “and specifically, that drafters were aware of ‘numbers of drivers in present service who are unable to read or speak English,’ whom the drafters required only ‘to understand traffic and warning signs.’”²⁸  Importantly the court stated that to account for the narrowness of the regulation, and the interests of non-anglophone drivers, the “Federal Highway Administration has recognized that ‘when promulgated, the [English requirement] was not intended to be enforced at roadside’ (i.e. against the driver), and explicitly refused to make ‘speaking English a specific pre-requisite for the CDL [and]…. Authorized administration of the CDL test in foreign languages.’”²⁹  The fact that the CDL test in the United States is administered in foreign languages is not well-known and severely undermines plaintiffs’ arguments related to English language proficiency. The court in Rodriguez held that the regulation’s drafters imply that, although the ability to speak English is important to any adequate compliance with safety regulations, a driver’s inability to speak English neither impairs the skills needed to properly operate a commercial motor vehicle “nor furnishes a justification for a traffic stop or ‘roadside enforcement action.’”³⁰

Rodriguez implies that enforcing the English-language requirement too broadly would present constitutional equal protection issues. Rather than taking it as an exacting restriction that proscribes “non-anglophones” from driving commercially, in the negligence context the court interprets the rules as a sort of balancing test to determine whether any of the motor carrier’s violations of Section 391.11(b) actually and proximately caused the injury at issue. The court held that no evidence before the Court supported “a finding that Sanchez’s lack of English proficiency contributed to the accident.”³¹  In Sanchez, the plaintiff’s expert conceded that Sanchez’s lack of English proficiency was not causally related to the accident. It was also important to the court that the record otherwise reflected an appropriate hiring and background check process as well as sufficient training shown through the records and Sanchez’s testimony.³²  Building a persuasive case of proper hiring and background checks for a driver appears to be an important aspect in the court’s reasoning in Rodriguez.

Therefore, unless a plaintiff can present a theory of causality, the English language requirement in Section 391.11(b)(2) should not be used as a basis to argue that the motor carrier employer of a driver possessing a Mexican CDL and unable to speak or read English was negligent for hiring that driver. This line of reasoning should be instructional with regard to drivers who are valid CDL drivers but who have English language proficiency issues.

It is worth mentioning that in most cases that involve a driver with English language proficiency issues, especially for companies that use Mexican CDL drivers, there is sometimes a history of roadside citations for violation of Section 391.11(b)(2) for other company drivers. Plaintiff’s counsel often will dig up and try to use this history of citations and violations as an attempt to show a pattern of non-compliance and dangerous conduct by the company. Rodriguez provides legal arguments, statutory, regulatory and case law, that such citations are improper and should not influence the Court or be admissible.  Rodriquez also provides carriers grounds to challenge such citations generally because the case indicates that roadside enforcement of Section 391.11(b)(2) may not be proper.

The United States has had and will continue to have an influx of immigrants whose first language is not English.  A great many will be employed in logistics and transportation fields and many will become commercial motor vehicle drivers.  The current debate around immigration is often divisive and juries reflect that divide.  Lawyers across the country take this issue into account in both prosecuting and defending a claim.  Knowledge of the requirements of the regulations and of the limited case law related to the English language requirement of the regulations will serve the transportation lawyers’ clients well as they adjust to fluctuating demographics of the labor pool.

Endnotes

¹  ATA Press Release, Lawmakers Introduce Bipartisan Bill to Strengthen Driver Apprenticeship Program, May 17, 2023, https://www.trucking.org/news-insights/lawmakers-introduce-bipartisan-bill-strengthen-driver-apprenticeship-program

²  Fleet Turns to Immigration Programs to Find Truck Drivers, Neil Abt, FleetOwner, October 23, 2019,https://www.fleetowner.com/operations/article/21704400/fleets-turn-to-immigration-programs-to-find-truck-drivers

³  Id.

⁴  Id.

⁵  19 C.F.R. § 123.14 (a).

⁶  Fleet Turns to Immigration Programs to Find Truck Drivers, Neil Abt, FleetOwner, October 23, 2019, https://www.fleetowner.com/operations/article/21704400/fleets-turn-to-immigration-programs-to-find-truck-drivers

⁷  49 C.F.R. § 391.11 (b).

⁸  57 Fed. Reg. 31454 (No. 137) (July 16, 1992) (codified at 49 C.F.R. § 383). See also 49 C.F.R. § 383.23, fn1 (stating that “Effective November 21, 1991, and as amended on January 19, 2017, the Administrator determined that the new Licencias Federales de Conductor issued by the United Mexican States are in accordance with the standards of this part.”).

⁹  Id.

¹⁰  57 Fed. Reg. 31456, Appendix A (July 16, 1992).

¹¹  See https://www.fmcsa.dot.gov/international-programs/us-mexico-cdl-mou and https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/international-programs/79541/2017cdlmousignedenglish_0.pdf

¹²  49 C.F.R. § 383.23(b)(1).

¹³  57 Fed. Reg. 31458 (No. 137) (July 16, 1992).

¹⁴  49 C.F.R. § 391.11(b)(2).

¹⁵  17 F.3d 1478, 1485 (D.C. Cir. 1994)

¹⁶  Id. at 1485.

¹⁷  Id. (“The federal age requirement, for example, is one of a long list of necessary ‘qualifications’ that apply in addition to the requirement that drivers possess a valid CDL.”).

¹⁸  Rodriguez v. Transportes De Carga FEMA, S.A. de C.V., No. 5:18-CV-114, 2020 WL 6938330, at *11-12 (S.D. Tex. 2020).

¹⁹  Id. at *2-3.

²⁰  Id.

²¹  Id.

²²  Id.

²³  Id.

²⁴  Id. at *11

²⁵  Id.

²⁶  Id.

²⁷  Id. at *12

²⁸  Id. (citing Qualification of Drivers, 62 Fed. Reg. 45200-01 (Aug. 26, 1997)).

²⁹  Id.

³⁰  Id.

³¹  Id.

³²  Id.