COURT OF APPEALS - MCS-90 / STATUTORY EMPLOYEE

United Fin. Cas. Co. v. Abe Hershberger & Sons Trucking Ltd., (10th Dist., 2-14-12), 2012-Ohio-561.

TRUCKING, MCS-90, 49 C.F.R. 390.5, PASSENGER AS STATUTORY EMPLOYEE

   
The Court interpreted the term "employee" in the federal motor carrier safety regulations, which is found in 49 C.F.R. 390.5 as it pertained to a passenger/instructor in the vehicle at the time of loss.

The Court found that nothing in section 390.5 limits an independent contractor's status as a statutory employee to times when the individual is actually operating a commercial motor vehicle. The regulatory language referring to an independent contractor "in the course of  operating a commercial motor vehicle" must relate to the second requirement under that section-that the employee directly affects commercial motor vehicle safety.  If he does so, then he is a statutory employee under 390.5. 

The plain language of the regulation requires only that the individual directly affects commercial motor vehicle safety while in the course of his or her employment, a requirement that may be satisfied by operation of a commercial motor vehicle.  Satisfaction of that  requirement, however, is not limited to actually driving a commercial motor vehicle. In fact, a myriad of courts have held that a passenger in a commercial vehicle may qualify as an  employee under 390.5.  READ THE CASE

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