[Senate Hearing 111-1068]
[From the U.S. Government Publishing Office]
S. Hrg. 111-1068
NHTSA OVERSIGHT: AN EXAMINATION OF THE HIGHWAY SAFETY PROVISIONS OF
SAFETEA-LU
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, AND INSURANCE
of the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 28, 2010
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
----------
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas,
JOHN F. KERRY, Massachusetts Ranking
BYRON L. DORGAN, North Dakota OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California JOHN ENSIGN, Nevada
BILL NELSON, Florida JIM DeMINT, South Carolina
MARIA CANTWELL, Washington JOHN THUNE, South Dakota
FRANK R. LAUTENBERG, New Jersey ROGER F. WICKER, Mississippi
MARK PRYOR, Arkansas GEORGE S. LeMIEUX, Florida
CLAIRE McCASKILL, Missouri JOHNNY ISAKSON, Georgia
AMY KLOBUCHAR, Minnesota DAVID VITTER, Louisiana
TOM UDALL, New Mexico SAM BROWNBACK, Kansas
MARK WARNER, Virginia MIKE JOHANNS, Nebraska
MARK BEGICH, Alaska
Ellen L. Doneski, Staff Director
James Reid, Deputy Staff Director
Bruce H. Andrews, General Counsel
Ann Begeman, Republican Staff Director
Brian M. Hendricks, Republican General Counsel
Nick Rossi, Republican Chief Counsel
------
SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, AND INSURANCE
MARK PRYOR, Arkansas, Chairman ROGER F. WICKER, Mississippi,
BYRON L. DORGAN, North Dakota Ranking
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida JIM DeMINT, South Carolina
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota JOHNNY ISAKSON, Georgia
TOM UDALL, New Mexico DAVID VITTER, Louisiana
C O N T E N T S
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Page
Hearing held on September 28, 2010............................... 1
Statement of Senator Pryor....................................... 1
Letter, dated September 23, 2010, to Hon. Mark Pryor, from
Colonel Winford E. Phillips, Governor's Highway Safety
Representative, Arkansas State Police...................... 12
Statement of Senator Nelson...................................... 3
Statement of Senator Wicker...................................... 4
Statement of Senator Udall....................................... 5
Prepared statement........................................... 6
Statement of Senator Klobuchar................................... 17
Witnesses
Hon. David L. Strickland, Administrator, National Highway Traffic
Safety Administration.......................................... 7
Prepared statement........................................... 8
Jacqueline S. Gillan, Vice President, Advocates for Highway and
Auto Safety.................................................... 22
Prepared statement........................................... 24
Robert Strassburger, Vice President, Vehicle Safety and
Harmonization, Alliance of Automobile Manufacturers............ 38
Prepared statement........................................... 40
Laura Dean-Mooney, National President, Mothers Against Drunk
Driving (MADD)................................................. 44
Prepared statement........................................... 46
Neil Pedersen, Administrator, Maryland State Highway
Administration; and Representative, Governor's Highway Safety
Association (GHSA)............................................. 52
Prepared statement........................................... 53
Ethan Ruby, Accident Victim, New York, New York.................. 70
Prepared statement........................................... 72
Ira H. Leesfield, Past President, Academy of Florida Trial
Lawyers........................................................ 73
Prepared statement........................................... 75
Thomas M. James, President and CEO, Truck Renting and Leasing
Association.................................................... 81
Prepared statement........................................... 83
Appendix
Hon. John D. Rockefeller IV, U.S. Senator from West Virginia,
prepared statement............................................. 105
National Automobile Dealers Association, prepared statement...... 106
Letter, dated October 12, 2010, to Hon. John D. Rockefeller IV
and Hon. Kay Bailey Hutchison from Sam Graves, Member of
Congress; and Rick Boucher, Member of Congress................. 109
Response to written questions submitted to Hon. David L.
Strickland by:
Hon. John D. Rockefeller IV.................................. 110
Hon. Roger F. Wicker......................................... 111
Response to written questions submitted by Hon. Claire McCaskill
to Ethan Ruby and Responded to by David C. Cook, Marc S. Moller
Kreindler & Kreindler LLP...................................... 112
Response to written question submitted by Hon. Byron Dorgan to
Ira H. Leesfield............................................... 114
Response to written questions submitted to Thomas M. James by:
Hon. Claire McCaskill........................................ 115
Hon. Byron Dorgan............................................ 115
Letter, dated October 12, 2010, to Hon. John D. Rockefeller IV,
Hon. Kay Bailey Hutchison, Hon. Mark Pryor, and Hon. Roger
Wicker from Thomas M. James, President and CEO, Truck Renting
and Leasing Association........................................ 116
NHTSA OVERSIGHT:
AN EXAMINATION OF THE HIGHWAY SAFETY PROVISIONS OF SAFETEA-LU
----------
TUESDAY, SEPTEMBER 28, 2010
U.S. Senate,
Subcommittee on Consumer Protection, Product
Safety, and Insurance,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:29 a.m. in
room SR-253, Russell Senate Office Building, Hon. Mark Pryor,
Chairman of the Subcommittee, presiding.
OPENING STATEMENT OF HON. MARK PRYOR,
U.S. SENATOR FROM ARKANSAS
Senator Pryor. I'll go ahead and call the Subcommittee to
order.
I want to thank everyone for coming to the Senate Committee
on Commerce, Science, and Transportation's Subcommittee on
Consumer Protection, Public Safety--excuse me, Product Safety,
and Insurance Subcommittee.
I want to thank all of my colleagues for being here. We
have a few more on the way. And I'm going to give a brief
opening statement here, and then I'll let others give opening
statements if they prefer. And the witnesses will have 5
minutes to give their opening remarks.
We're going to leave the record--we're going to put all of
your opening statements in the record, so don't feel like you
have to cover everything, because we'll put in the record. And
also, we're going to leave the record open for a few days
afterwards for follow-up questions.
Let me go ahead and get underway. The other little
housekeeping issue is, in about an hour we're going to have a
couple of rollcall votes on the floor, so we may have to recess
this subcommittee briefly, and run over and vote, and come
back. But, we'll work through that at the appropriate time.
NHTSA has two core missions: vehicle safety and highway
safety. Today's hearing will focus mostly on highway safety.
The highway safety mission consists of safety and research
programs designed to decrease vehicle deaths and injuries by
changing driver behavior regarding seatbelt use, drunk driving,
speeding, motorcycle safety, child restraints, and, most
recently, distracted driving, as well as other areas.
NHTSA addresses driver behavior with safety grants to
States that enact certain laws or carry out enforcement
activities such as police patrols. NHTSA also conducts national
advertising programs related to seatbelts and drunk driving as
part of its coordination with the States. In addition, NHTSA
conducts research into driver behavior safety concerns such as
impaired driving, distracted driving, teen driving, and the
emerging problem of older drivers now that the baby-boomers
have begun to retire.
The vast majority of these programs and grants are funded
through the Highway Trust Fund. While we will not get into a
debate over the Highway Trust Fund in this hearing, it is
important that we recognize its current shortcomings as we
consider plans to adequately fund important highway safety
initiatives.
In 2005, Congress enacted SAFETEA-LU, a reauthorization of
the Federal Highway programs, including NHTSA's highway safety
programs. This authorization expired in September 2009, and has
been extended now by the Congress five times. The most recent
extension is scheduled to expire on December 31 of this year.
New legislation is being--is needed to reauthorize these
programs and other NHTSA functions, and it's clear that funding
levels are currently inadequate. NHTSA is in need of additional
funding and resources to not only implement existing programs,
but also to implement new programs related to drunk driving,
distracted driving, and others that may need to be included in
the upcoming reauthorization.
This hearing will provide the Subcommittee with the
opportunity to examine the Safety Grant programs as they exist
under the current authorization, and to consider new strategies
for funding programs to improve driver safety.
I look forward to receiving input from all of our witnesses
today. And I look forward to working with each of them as this
committee and subcommittee begin to develop the NHTSA
reauthorization bill as part of the larger surface
transportation reauthorization legislation in the coming weeks
and months.
And I also want to thank all of my colleagues for their
participation and their attention to these very important
public safety matters.
Another issue that we will address today, in our third
panel, is vicarious liability. And the subject is something
that I know Senator Nelson and others have been interested in.
We'll review a provision in the 2005 SAFETEA-LU bill, added by
Congressman Graves of Missouri, that preempted State tort laws,
as they relate to liability for vehicle rental companies. So, I
look forward to hearing about the impact of that amendment and
how it has impacted citizens and companies in the various
states.
Now what I'd like to I'd like to do at this point, I know
that Senator Nelson has other committees he has to get to, so
why don't I recognize Senator Nelson for his opening statement,
and then we'll go to the witnesses.
Thank you.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Thank you, Mr. Chairman.
I want to thank all the witnesses for participating today.
And one particular witness, a personal friend of mine, Ira
Leesfield, is a tireless advocate of justice. He is from
Florida and he's a tireless advocate, both in the courtroom, as
well as, outside of the courtroom. For example, he received the
AJC's Judge Learned Hand Award for preferred excellent--
excellence, in honor of the memory of Judge Learned Hand and
the principles that that judge stood for, and that was the
rights of the individual and the importance of democratic
values in an orderly society.
Now, Mr. Chairman and Ranking Member Senator Wicker, we
have a unique situation in Florida, and you're going to touch
on it in the third panel. We have about 40--minimum 40 million,
and it's probably approaching 60 million, visitors a year to
Florida. Of course, our tourism industry is one of our large
industries. And a lot of those guests come from foreign
countries. And when they get to Florida, they rent a car. In
the wisdom of the State legislature, under Governor Jeb Bush,
they lowered the tort limits, lowering it to $500,000 for
damage and $100,000 for pain and suffering. That was Governor
Bush and a Republican legislature.
But, along comes the Graves Amendment, and it wipes out
States' rights. A State that has a unique situation, unlike
Arkansas and unlike Mississippi, tens of millions of visitors,
many of whom are foreign guests that rent a car, get in an
accident, and leave the country, and the injured is left
without compensation. That's why, in the wisdom of Governor
Bush, in wanting to put limits on tort liability, they lowered
it, but they lowered it to that 500/100 level.
But, what happens now, as we--and you've heard me say this
before; Florida is not only a microcosm of the country, it's
now a microcosm of the Western Hemisphere--with so many
visitors coming in from Latin America, Europe--and, of course,
what are the draws? The draws are our beaches. The draws are
Miami, an international city. The draws are, obviously, the
attractions in Orlando. Orlando and Miami are two of the
largest international airports in the world. And when one of
those foreign guests gets in an accident, and there is no
financial liability of the guest, because they're gone, then
the injured person is up-creek without a paddle.
I would ask you to consider as this third panel deliberates
this--this is going to be opposed, of course, by the rental car
companies, and I understand that. But, rental car companies,
because of the number of customers that they have, make tens of
billions of dollars in the State of Florida. And for trying to
protect people, I would urge that you consider States' rights,
in the State lawmaking body and its Governor, to know what
should apply best to the unique circumstances of that State.
That's not the present situation, with the Graves Amendment,
and that thoughtful balance was completely overturned.
Now, let me just say, in closing, before I came here to the
Senate, I was the elected Insurance Commissioner of Florida.
And I stood on States' rights for States to have the ability to
judge what were their best consumer law protections. We count
on members of the legislature and our elected officials.
Now, on this committee, you've got former Governors, you've
got former members of the legislature, you've got former law
enforcement officers on this committee, all of whom have real-
world experience in preserving the delicate balance of States'
rights and Federal power. And I hope that this committee will
draw on that experience in determining this.
And I believe that, given the unique circumstances that we
find in our State, that this ought to be an exception to the
Graves Amendment.
So, thank you, Mr. Chairman.
I'm going to go on to these committee meetings, and I will
try to get back.
Senator Pryor. Thank you.
Senator Nelson. If my voice holds out.
Senator Pryor. I understand. Thank you very much.
Senator Wicker.
STATEMENT OF HON. ROGER F. WICKER,
U.S. SENATOR FROM MISSISSIPPI
Senator Wicker. Senator Nelson's voice has held out very
well so far.
Mr. Chairman, I have a very brief statement that I would
like to give before we allow our witnesses to testify.
Of course we're holding a hearing today into the safety
provisions of our last highway bill and the way it is
administered through NHTSA. These are important programs that
have a significant impact on highway safety in each of our
States. The Highway Safety Grant programs have a budget of over
$600 million for Fiscal Year 2010, so it is very important to
ensure that the funds are being used effectively and
efficiently.
I want to thank Chairman Pryor, for taking this opportunity
to do oversight.
Transportation Secretary LaHood recently announced that in
2009, highway deaths fell to 33,808, the lowest number since
1950. This decline follows an encouraging trend, as fatalities
have decreased every year since 2005. Last year's decline
occurred even though the estimated vehicle miles traveled for
the year actually increased above the 2008 levels. Forty-one
states, including my home State of Mississippi, saw a reduction
in the total number of highway fatalities. The number of people
injured in a crash also fell for the 10th straight year.
While these numbers are encouraging and show continuing
improvement, there are still far too many deaths and injuries
that occur on our roads. Statistics show that motor vehicle
crashes remain the leading cause of death for those between the
ages of 3 and 34.
The goal of everyone here today is to continue the decline
in highway deaths each year, and the Federal grants provided to
the States to implement safety plans play an important role.
Today, we will learn more about the grants and how they are
used. We need to discover where they're working well and where
they could be made more efficient. This should help us make the
program more efficient for the States and for the drivers and
passengers on our roads.
It is important to examine how the States report data and
how NHTSA utilizes that data to administer the grants
appropriately. It is also important to learn from NHTSA about
their plans for the future; how the administration intends to
continue seeing this decline in accidents.
There are many exciting developments occurring in vehicle
safety technology. Each day, it seems we're moving more toward
the futuristic cars previously only seen in movies, with
vehicles able to sense trouble before it happens, and in some
cases, to react for drivers to help keep them safe. It will be
important to hear from our witnesses as to how these
technologies are being utilized and what NHTSA's role should be
in facilitating the next-generation vehicle safety measures.
We're fortunate to have expert witnesses here today who can
tell us more about these programs. In our first panel, we will
hear from NHTSA Administrator Strickland; in our second panel,
from stakeholders in the vehicle highway safety community.
I, too, may not be able to make the third panel, but I
appreciate the insight that my colleague from Florida has
provided there.
I want to thank all of our witnesses for being with us
today and sharing their knowledge and experience. They are
important resources for us as we review the highway safety
provisions of SAFETEA-LU, and I look forward to a productive
hearing.
Thank you, Mr. Chairman.
Senator Pryor. Thank you, Senator Wicker.
And we've been joined by Senator Udall, who I understand
has to go preside in the Senate, here, in a just a minute.
So, go ahead----
Senator Udall. That is----
Senator Pryor.--make your statement please.
Senator Udall.--correct, Senator Pryor.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. And I thank you for holding this hearing
today on highway safety programs.
Highway safety is critical; and, while great steps have
been made since the enactment of SAFETEA, it's important for us
to continue to evaluate the safety programs for effectiveness.
It's also important that we continue to identify ways to
improve highway safety in the future.
Combating drunk driving has been a focus of mine for nearly
20 years, and it will stay a focus until it's eliminated. While
the existing programs to reduce drunk driving are helping move
us forward, drunk driving remains the primary cause of fatal
crashes. Additionally, despite their positive track record of
reducing recidivism, only 11 States have enacted ignition
interlock laws for convicted DUI offenders. That's why I've
introduced the ROADS SAFE legislation that was incorporated
into the Motor Vehicle Safety Act.
ROADS SAFE authorizes and increases funding for research
being conducted by NHTSA and leading automakers as they develop
vehicle safety technologies to prevent drunk-driving crashes.
Some describe this effort as a Manhattan Project to end drunk
driving. The technologies developed in this program could one
day be used to prevent anyone from driving any vehicle if their
blood alcohol content is above .08.
But, drunk driving isn't our only highway safety challenge.
Our highways can be made safer for all through simple changes
in behavior. What is critical to understand is how we can help
encourage these daily changes across the Nation every day so
that lives will be saved.
And it's good to see the Honorable David Strickland here,
Senator Pryor. As Administrator, I know that he, with his
experience here at the Commerce Committee, is going to put a
priority on drunk driving and highway safety. And sorry I'm
going to miss his testimony, since I'm headed off to preside.
But, I'd also ask to put my full statement in the record.
Thank you.
Senator Pryor. Without objection. Thank you for being here.
[The prepared statement of Senator Udall follows:]
Prepared Statement of Hon. Tom Udall, U.S. Senator from New Mexico
Senator Pryor, thank you holding this hearing on highway safety
programs.
Highway safety is critical and while great steps have been made
since the enactment of SAFETEA it is important for us to continue to
evaluate the safety programs for effectiveness. It is also important
that we continue to identify ways to further improve highway safety in
the future.
Combating drunk driving has been a focus of mine for nearly twenty
years and it will stay a focus until it is eliminated. While the
existing programs to reduce drunk driving are helping move us forward,
drunk driving remains the primary cause of fatal crashes. Additionally
despite their positive track record of reducing recidivism, only 11
states have enacted ignition interlock laws for convicted DUI
offenders. That is why I have introduced the ROADS SAFE legislation
that was incorporated into the Motor Vehicle Safety Act.
ROADS SAFE authorizes and increases funding for research being
conducted by NHTSA and leading automakers as they develop vehicle
safety technologies to prevent drunk driving crashes. Some describe
this effort as a ``Manhattan Project'' to end drunk driving. The
technologies developed in this program could 1 day be used to prevent
anyone from driving any vehicle if their blood alcohol content is above
0.08.
But drunk driving isn't our only highway safety challenge. Our
highways can be made safer for all through simple changes in behavior.
What is critical to understand is how we can help encourage these daily
changes across the Nation everyday so that lives will be saved. NHTSA
is leading the effort in guiding those changes and I look forward to
hearing from the witnesses today on how NHTSA will continue to address
changes needed to improve safety on our roads.
Senator Pryor. Now, this brings us to our first panel and
our first witness. And our--this witness, here, is no stranger
to this committee.
[Laughter.]
Senator Pryor. He lived in this committee, was this
committee, for years and years, and we appreciate his service
here, and we certainly appreciate his service over at NHTSA.
So, I'd like to introduce the Honorable David Strickland,
Administrator, National Highway Traffic Safety Administration
of the U.S. Department of Transportation.
Go ahead.
STATEMENT OF HON. DAVID L. STRICKLAND,
ADMINISTRATOR, NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
Mr. Strickland. Thank you so much, Chairman Pryor, Ranking
Member Wicker.
This is my first time back before my old subcommittee. It's
an honor and a privilege to be before you as the Administrator
of NHTSA. And I look forward to working with this committee and
the Congress in the going-forward days on preparing for
reauthorization.
NHTSA recently released data showing that in 2009 the
Nation continued to make dramatic progress in motor vehicle
safety. Fatalities fell almost 10 percent between 2008 and
2009, and injuries fell by more than 5 percent. There are many
reasons for this improvement, but Congressional leadership was
key, for I believe that the grants, research, and other
programs authorized by SAFETEA-LU, played a key role in the
significant reduction in highway fatalities. Overall, both the
number and the rate of fatalities on our roadways have fallen
by more than 20 percent between 2004 and 2009. Some of the key
indicators include seatbelt use being up by 6 percent, and
child passenger restraint use for children 8-years-old and
younger is up by 6 percent.
There is one indicator that is moving in the wrong
direction: motorcycle fatalities. Between 2004 and 2009, the
number of motorcycle riders killed increased by 11 percent, to
4,462 riders. However, we did see the first decrease in
motorcycle fatalities in more than a decade between 2008 and
2009. We need to build on last year's progress. The most
important step we could take is to assure that all riders wear
Department of Transportation-compliant helmets, which are 37
percent effective in reducing fatalities.
We estimate that helmets prevented over 1,800 fatalities in
2008, and at least 800 additional fatalities could have been
avoided if those riders wore helmets. NHTSA will actively work
with the Congress to promote helmet use.
The Nation has enjoyed 17 consecutive quarters of reduction
in highway crash fatalities, an unprecedented occurrence. Aside
from the admittedly important exception of motorcyclists, all
the data is moving in the correct direction.
It is important to acknowledge that this progress may be
partly attributable to the economic downturn that this country
is currently suffering. While overall miles driven have
increased, we believe that discretionary travel may have
fallen. Data suggests that these trips are higher risk than
daily commuting trips. So, as the economy improves, crashes may
increase somewhat. That makes it all the more important that we
continue to promote programs that work, and continue to modify
and revise our approach to further enhance safety.
Therefore, I'd like to highlight a couple of the programs
that work very well in SAFETEA-LU.
The Section 406 Safety Belt Incentive Program provided a
sizable incentive for States to adopt primary belt laws, and 14
states either adopted or upgraded their primary belt laws.
Another 7 states qualify for 406 funds by achieving 2
consecutive years of observed belt use of 85 percent.
In addition, 18 states enacted new booster-seat laws, up
from the 5 states and the District of Columbia that had such
laws in 2006.
The Section 410 Impaired Driving Countermeasure Program
made approximately $650 million available in grants to the
states between 2006 and 2010. From 2004 and 2009, alcohol-
related fatalities on our roadways declined by 17 percent.
This Congress also provided $29 million each year to fund
high-visibility enforcement campaigns to support on-the-ground
enforcement efforts to reduce impaired driving and increase
seatbelt use. These funds are used to place paid advertising to
educate the public, which includes our campaigns ``Over the
Limit, Under Arrest'' and, for seatbelts, ``Click It or
Ticket.''
In addition to building on the successes we have seen in
SAFETEA-LU, we at NHTSA are looking forward to continuing to
work with this committee and the Congress on addressing
evolving risks that we have observed in the traffic safety
arena, as well as improving countermeasures for our more mature
risks.
We have ongoing concerns about pedestrian safety and
distraction. And we have initiated pilot programs in each of
these areas in the hope to use the results to guide policy
recommendations for the next reauthorization.
We also feel very strongly that encouraging and expanding
the use of interlocks for those convicted of drunk driving
would make significant strides in protecting the driving public
from the ravages of this criminal act.
Under the leadership of Secretary LaHood, the Department
looks forward to working with this committee to address highway
safety challenges of today and in the future.
Thank you so much for this opportunity to appear before you
today, and I look forward to answering your questions.
[The prepared statement of Mr. Strickland follows:]
Prepared Statement of Hon. David L. Strickland, Administrator,
National Highway Traffic Safety Administration
Mr. Chairman, members of the Committee, it is a great pleasure to
be back in familiar surroundings to talk with you today about SAFETEA-
LU. Just as previous authorizations have structured NHTSA's safety
programs in the past--by establishing grant programs, funding research
areas, and highlighting key issues--the next authorization will shape
Federal and States safety programs for years to come. Therefore, I am
very pleased to be invited to share my thoughts on SAFETEA-LU and its
results.
Secretary LaHood recently released data showing that in 2009, the
Nation continued to make dramatic progress in motor vehicle safety.
Fatalities fell almost 10 percent between 2008 and 2009, and injuries
declined by more than 5 percent. Fatalities fell in 41 States, the
District of Columbia, and Puerto Rico. Many factors help account for
this broad-based, nationwide improvement. Secretary LaHood has been
focused on safety since his first day in office, and his example and
persistence have inspired me and all of NHTSA to redouble our efforts
to fight unsafe driving behaviors. Our State and local partners, who
are in the field every day, enforcing traffic laws, training new
drivers, developing local outreach campaigns, and otherwise promoting
safety, are obviously crucial in the progress we have seen. But part of
the progress is attributable to Congress, for I believe that the
grants, research, and other programs authorized by SAFETEA-LU played an
important role in the significant reduction in highway fatalities.
As the chart (See last page) shows, almost all the safety
indicators we monitor indicate that safety has improved since the
passage of SAFETEA-LU. Overall, both the number and the rate of traffic
fatalities have fallen by about 21 percent between 2004 and 2009. Some
of the other rows in the chart suggest why the number may be falling:
seat belt use is up by 5 percent, and child passenger restraint use
among occupants 8 years old or younger is up by 6 percent.
However, you will notice that there is one indicator that is moving
in the wrong direction, motorcycle fatalities. Between 2004 and 2009,
the number of motorcycle riders killed increased from just over 4,200
to almost 4,462, an 11 percent increase. The number of motorcycle
fatalities did fall between 2008 and 2009, the first time we have seen
a decrease in more than a decade. We need to work to build on last
year's progress. The most important step we could take would be to
assure that all riders wear a DOT-compliant helmet, which are 37
percent effective in reducing fatalities. We estimate that helmets
prevented over 1,800 fatalities in 2008, and that more than 800
additional fatalities could have been avoided if all riders wore
helmets. NHTSA will actively work with Congress to promote helmet use.
This chart demonstrates that overall, the programs Congress created
in SAFETEA-LU, and the tools that were provided to NHTSA, had the
intended effect. The Nation has enjoyed sixteen (16) consecutive
quarters of reduction in highway crash fatalities, an unprecedented
occurrence. Aside from the admittedly important exception of
motorcyclists, the data are moving in the correct direction: belt use
is up, alcohol impaired fatalities are down, and overall fatalities and
injuries are falling.
It is important to acknowledge that this progress may be partly
attributable to the economic downturn the country continues to suffer
through. While overall traffic has increased, we believe discretionary
travel may have fallen. Data suggests these trips are higher risk than
daily commuting trips. So as the economy improves, crashes may increase
somewhat. That makes it all the more important that we continue to
promote programs that work, and continue to modify and revise our
approach to further enhance safety. Therefore, I would like to spend a
minute discussing why that is, what we think worked in SAFETEA-LU.
First, SAFETEA-LU established the Section 406 Safety Belt Incentive
program. This program provided a sizable incentive for States to adopt
primary belt laws, and fourteen (14) States have either adopted new
primary belt laws (PBLs), or upgraded existing laws because of this
incentive. Another seven (7) States qualified for Section 406 grants by
achieving two consecutive years of eighty-five percent (85 percent)
observed safety belt usage. Enactment of a primary safety belt use law
is one of the most important safety countermeasures available. States
enacting primary belt laws typically see about a 10 percent increase in
belt use, and belts have been shown to be about 50 percent effective in
reducing fatalities, still the single most important piece of safety
equipment in a vehicle. The Section 406 incentive program clearly had a
positive effect in increasing safety belt usage across the Nation and
contributing to the reduction in highway fatalities through the
authorization period.
In addition, 18 states enacted new booster seat laws, up from the 5
States and DC that had such laws in 2006. These laws are crucial in
protecting our youngest and most vulnerable citizens.
The Section 410 Impaired Driving Countermeasure Program made
approximately $650 million in grants available to the States from 2006-
2010. During the same period, alcohol-related fatalities on the
Nation's highways declined by seventeen percent (17%) from 13,099 to
10,839. This reduction reflects the hard work of the agency, States and
communities, law enforcement agencies across the nation, and the non-
governmental organizations that work so hard to prevent impaired
driving crashes.
Congress also provided in SAFETEA-LU, $29 million each year to fund
high visibility enforcement campaigns to support law enforcement
efforts on-the-ground to reduce impaired driving and increase safety
belt use. These funds are used to place paid advertising to educate the
public about the ``Over the Limit. Under Arrest.,'' impaired driving
national crackdown, and the Click It or Ticket, national safety belt
usage mobilization. High visibility enforcement is a very successful
model for achieving highway safety behavior modification and our
national enforcement campaigns, particularly Click It or Ticket, have
become a part of the national lexicon. We are piloting this approach
for dealing with distracted driving in Hartford and Syracuse, and the
early results look very promising.
SAFETEA-LU also had some special emphasis areas including annual
funding for older driver safety and for law enforcement training on
police pursuits. The older driver program has resulted in the creation
of a variety of programs aimed at older drivers, particularly related
to improving the scientific basis of driver licensing decisions through
the development and promotion of driver fitness medical guidelines.
During the authorization period, fatalities involving drivers age 65
and older dropped by 16 percent even while the population of older
drivers continued to increase. While older individuals exhibit safer
behavior--in fatal crashes, they are less likely to be alcohol impaired
and more likely to be buckled--too many older citizens continue to die
in fatal crashes. NHTSA has also worked with law enforcement
organizations to develop vehicular pursuit training, which helps
promote the safety of public, the violator, and the officer. NHTSA and
the International Association of Directors of Law Enforcement Standards
and Training (IADLEST) have partnered to develop and provide a
comprehensive pursuit policy program. Over 400 instructors have been
trained, and workshops are in progress which, among other components,
encourage law enforcement agencies to analyze current pursuit policies
and training requirements.
Apart from safety countermeasure programs, SAFETEA-LU continued a
grant program structure with multiple grant programs addressing
individual countermeasures such as impaired driving, occupant
protection, motorcycle safety, child and booster seats, data
improvement, and the highway safety formula grant program. These
multiple grants often come with different application deadlines,
different State matching requirements, and different types of
eligibility requirements. While providing maximum flexibility to States
to qualify for grant funding during a Fiscal Year, and ably advancing
programmatic objectives in each area, these multiple application and
matching requirements create resource administration problems for the
States, as well as the Department of Transportation. In SAFETEA-LU,
Congress directed the DOT to consolidate grant applications, by
establishing a process whereby States could apply for all grants with a
single application. Unfortunately, the Department was unable to meet
this mandate, due to the large number of grant programs and the wide
variation in grant criteria. In particular, some grants depend on
States passing a certain law to be eligible for a grant that year. The
potential to qualify for different grants at different points of the
Fiscal Year makes establishing a consolidated grant application
impossible.
We look forward to a fruitful dialogue with the Committee and our
State and non-governmental partners on potential methods for dealing
with the administrative as well as programmatic requirements of our
national highway safety program. NHTSA has worked with, and will
continue to work with, other U.S. DOT agencies that have a role in
improving highway safety within the Department. That includes RITA
regarding the ITS Program; FMCSA regarding commercial vehicle safety;
and FHWA regarding the roadway infrastructure design and operations, as
well as for the Strategic Highway Research Program (SHRP2).
SAFETEA-LU has been a very successful piece of legislation. The
Committee, the Congress, the multiple constituencies with an interest
in the transportation program and we at the Department can look back on
SAFETEA-LU and know that it helped our Nation make significant strides
in improving highway safety.
We can be proud of what has been accomplished but also recognize
that so much more needs to be done. Clearly, even with the lowest
absolute fatality number since 1950 and the lowest fatality rate number
in our Nation's history, more than 33,000 fatalities a year on our
highways is not a number that we can accept. We need to renew our
commitment to finding new and better ways to reach those difficult to
reach populations to change their behavior, to make vehicles safer, to
develop new technologies to improve our safety margin, so that we can
continue to make steady progress in reducing this preventable epidemic
of roadway crashes.
We must also anticipate new areas for fruitful effort, such as
initiatives to address driver distraction, to address issues before
they become serious, national problems.
Under the leadership of Secretary LaHood, the Department looks
forward to working with this Committee to address the highway safety
challenges of today and into the future. I appreciate the opportunity
to be with you today and will be happy to try to answer any questions
you may have.
SAFETEA-LU Safety Performance Indicators
------------------------------------------------------------------------
2004 Current Change
------------------------------------------------------------------------
Total Fatalities 42,836 33,808 -21%
MC Fatalities 4,028 4,462 +11%
Fatality Rate 1.44 1.13 -22%
Alcohol Impaired Fatalities 13,099 10,839 -17%
Belt Use Rate 80% 85% +6%
Child Restraint Use, <8 82% 87% +6%
Universal Helmet Laws 20+DC 20+DC NA
PBL 21+DC 31+DC +48%
------------------------------------------------------------------------
Senator Pryor. Thank you very, very much. And thank you for
your statement.
And you, along with all the other witnesses, will submit
your written testimony for the record. So, thank you for
providing that to the Committee.
Let me just dive in here with a few questions. I actually
have prepared, literally, 9 pages of questions about these
various grant programs, and we can go through a lot of detail
and a lot of minutia on it. I may submit some of those for the
record and let you respond to those so I don't take up some of
my colleagues' time here. But, I do have an overall question
first, and that is: I know the Administration is looking at the
next highway bill, and I'm wondering, if you know--and you may
not know--but is the idea of increasing the fuel tax to fund
more infrastructure and more highway safety programs--is that
being discussed within the Administration, and could you give
us a quick update on that?
Mr. Strickland. Well, there's really not too much of an
update, Senator. I apologize for that. But, I can say that
there are active and ongoing conversations about the funding
mechanisms of the next highway bill. The successes of the fuel
economy laws and rules that this Congress passed, and that
NHTSA and EPA have implemented, have clearly reduced our fuel
consumption in America, which has impacted the gas tax. So we
recognize that we'll have to find a way forward in funding our
next reauthorization. Those conversations are ongoing between
all of the agencies affected, and we will definitely return to
the Congress when we have that answer.
Senator Pryor. You know, one of the things I pick up in my
State, even from the folks who want lower taxes and less
government, they still are comfortable with us investing in
infrastructure. That's a--it's kind of a fundamental government
responsibility, and it works, you know, to the overall good of
society and to the various communities around the State--I mean
around the country.
Mr. Strickland. Actually, I'd like to add one thing about
infrastructure, Senator. I think it's absolutely right in terms
of our investment for the state of good repair, and obviously
in the areas that clearly need new infrastructure for growth
and efficiency. But, infrastructure is just a part in the
safety calculus. The changes that have been made by the Federal
Highway Administration in support of the States--good
infrastructure has actually saved thousands of lives, as well,
and that cannot be overlooked as we have this overall
discussion about NHTSA's programs and the work of this
committee.
Senator Pryor. Right, I agree with that. And I think that
there's no question that we should put more money in
infrastructure, and I think we ought to put more money into the
safety programs, as well. And my guess is that we'd have a lot
of safety groups and folks from all over the country who would
agree with that. But, the balance we have to find is, you know,
How much is enough? I mean--in one way, there's never enough.
We can always put more and more and more into it.
Mr. Strickland. That's true.
Senator Pryor. But, we have to find that balance, and
that'll be a challenge for us as we go through this. But, one
question I have for you is the issue of collecting accurate
data and accurate information from the States. We've heard from
various States. In fact, I'd like to submit a letter, for the
record, from the Arkansas State Police.
[The information referred to follows:]
State of Arkansas--Arkansas State Police
Little Rock, AR, September 23, 2010
Hon. Mark Pryor,
Senate Consumer Protection, Product Safety, and Insurance Subcommittee,
Senate Commerce, Science, and Transportation Committee,
Washington, DC.
Dear Chairman Pryor:
In advance of the September 28, 2010 Subcommittee hearing on the
Federal highway safety programs, I would like to submit comments for
the record. As the Director of the Arkansas State Police and the
Governor's Highway Safety Representative for Arkansas, I am a member of
the Governors Highway Safety Association (GHSA). GHSA is a non-profit
association that represents state highway safety agencies. GHSA's
members administer Federal behavioral highway safety grant programs.
Highway Safety continues to be an important issue in the State of
Arkansas. Traffic related fatalities and injuries continue to be a
major public health problem in this country and in Arkansas. Although
we have made some progress, there were still more than 500 traffic
fatalities and 13,000 injuries in Arkansas last year. Traffic crashes
not only cause devastation to families and individuals, but they also
cost the State an estimated $2 billion in economic loss annually.
To address this problem, the Federal Government must make highway
safety a national priority and play a strong role in developing highway
safety policies and programs. I concur with GHSA's position on
reauthorizing the Federal highway safety programs. Specifically, GHSA
urges Congress to:
Maintain a Strong Federal Role in Highway Safety
Develop a National Strategic Highway Safety Plan
Emphasize performance-based planning
Enhance funding for data improvements
Consolidate grant programs and streamline grant program
administration
Enhance flexibility
Improve incentive programs and address such areas as
aggressive driving and speeding, teen driving and distracted
driving
Strengthen state programs through accountability, training
and research
One area of particular importance to Arkansas is the recommendation
to enhance funding for data improvements. To set appropriate
performance goals and measure progress, states need adequate data.
Unfortunately, obtaining good data is not a simple task. The Section
408 (23 U.S.C. 408) data improvement incentive grant program has helped
states improve their highway safety information (traffic records)
systems, with particular focus on improvements to the crash data
systems. However, this program is funded at only $34.5 million a year
and Arkansas receives only the minimum $500,000 annually.
Unfortunately, enhancements to data systems are very expensive and
require sustained resources. Improvements to automate our crash
database alone cost millions.
Furthermore, in Arkansas, as in other states, we are increasingly
funding improvements to other components of our traffic records
systems, such as electronic citation and emergency medical services
information systems. With the expectation to collect performance data
from the various systems comes a great need for adequate funding to
automate data collection and make other improvements to enhance data
sharing.
Also, I would like to emphasize opposition to new sanctions. I
concur with GHSA's position that incentives are a more appropriate
method to encourage state action. In Arkansas, the Section 406 (23
U.S.C. 406), Safety Belt Performance Grant, proved successful by
providing additional incentive for the state to pass a primary seat
belt law in 2009. The State received a one-time grant award for highway
programs. These funds are being put to good use in addressing the
State's highway safety problems, especially in program areas where
there is little or no available funding. First of all, the state was
able to use these funds to educate the public about the new primary
seat belt law. In addition, the funds are providing resources in other
needed areas such as for the implementation of the State's electronic
citation system, to formulate a program to combat aggressive driving,
and for teen driver safety.
Lastly, I would encourage Congress to carefully consider the
pending distracted driving proposal, S. 1938, which would provide
incentives to states that satisfy certain eligibility criteria.
Currently, there are only eight potentially eligible states (Arkansas
is not included). However, even those states would not qualify because
the criteria are too stringent. We concur with GHSA's recommendation
that this proposal be reexamined and adjustments made to allow more
states to qualify and receive the necessary funds to implement
appropriate countermeasures to address this emerging problem. The
reauthorization provides an opportunity for Congress to address
distracted driving in a thoughtful and comprehensive manner.
I applaud you and the Subcommittee for your work on highway safety
and I appreciate the opportunity to provide these comments for your
consideration.
Sincerely,
Colonel Winford E. Phillips,
Governor's Highway Safety Representative.
Senator Pryor. And I know other Senators here may have
other documents to submit. We'll be glad to do that.
But, I know that collecting accurate data is a challenge,
and I know that there is a program; you know, it's probably
underfunded, because, you know, I think my State only gets
$500,000, and that's not a whole lot of money to really try to
improve your technology and make your data more accurate.
But, are you finding that with other states? And what is
NHTSA's view on how we can improve the accurate collection of
data?
Mr. Strickland. Oh, certainly. Data is the backbone of what
we do, in terms of being able to identify risks and being able
to find the proper countermeasures, and seeing the
effectiveness of those countermeasures. Traffic records is one
of them. As we funded traffic records in the Section 408 Grant
and the National Driver Register, we've been hearing from all
the states, of needing more resources in this area, not only
for better collection, but the ability to share that data with
the Federal Government and with the States. So, it's something
that we look forward to working with this committee on in
trying to make sure we can improve the efficiency and the usage
of the resources and trying to find a way forward to continue
our work in modernizing all of our data collection, whether
it's the FARS or the NASS or if it's in traffic records.
Senator Pryor. OK. And my last question, until I turn it
over to Senator Wicker, is--there's this new, emerging
challenge of distracted driving. And I think that--obviously,
with cell phones and other things, but now, with text and just
general mobile Internet access, et cetera, it has become a real
challenge. I know that Secretary LaHood has been on this issue.
I know he has had it--at least one, maybe many conferences on
this to try to bring awareness and try to bring consensus on
this issue. And Senator Rockefeller has filed a bill, as well.
And I don't know if you've had a chance to look over the
Rockefeller bill and if you think that that's a good starting
point, or if you think Senator Rockefeller has, you know,
figured it out and we just ought to adopt it as-is. Or, I
didn't know if you had a--any thoughts on the Rockefeller bill
or any recommendations at this point.
Mr. Strickland. Well, you've sort of put me on the spot, in
terms----
[Laughter.]
Mr. Strickland.--of Senator Rockefeller's legislation. And
I was----
[Laughter.]
Senator Pryor. That's why you're here.
Mr. Strickland.--I was his Senior Counsel in the Consumer
Protection Committee--and part of the drafting of that piece of
legislation, so I'm officially meeting myself around the corner
on that particular question.
We believe, at DOT, that anything that incentivizes the
creation of strong texting and hand-held cell phone laws should
be supported. Senator Rockefeller's bill definitely does that,
providing incentives of up to $50 million to the States to
encourage hand-held cell phone bans and texting bans. We are
very much in support of that proposition, and we're supportive
of all of the efforts that may move the fight on distractive
driving forward.
Secretary LaHood has been very fixated on distraction. In
addition to the second Summit that we held, on the 21st, which
was very well attended--over 600 people from around the country
came and met to discuss about the way forward on distraction--
NHTSA's also in the process of working with the State of New
York and the State of Connecticut on two pilot programs with a
high-visibility enforcement campaign. It's called ``Phone in
One Hand, Ticket in the Other.'' We've had amazing results in
the reduction of drivers that are texting and using hand-held
cell phones. I am happy to talk about that in more detail, but
thank you so much for the question.
Senator Pryor. Great, thank you.
Senator Wicker.
Senator Wicker. Well, thank you very much, and thank you
for your testimony.
Senator Nelson, before he left, was speaking about the
wisdom of State governments. So, let me follow up on that with
a couple of claims from the Governors Highway Safety
Association.
First of all, each State has a strategic highway safety
plan, but, in their testimony that will follow, the Governors
Association discusses the lack of a national highway safety
plan. Do you believe that the lack of such a plan has resulted
in fragmentation of Federal behavioral highway safety
resources? And should we have such a national plan?
Mr. Strickland. Well, Senator Wicker, the work of NHTSA and
the Department of Transportation is dealing with our long-term
goal-setting for both the States and the country. Our
activities, in terms of our management reviews, in terms of us
providing data and guidance to the States, effectively creates
that national framework to which you are alluding to. Now, do
we have a stated overarching national plan like some of the
European countries have? We do not. But, we also have a much
different system, in terms of how we organize and we work with
the States. The one thing that we have learned over the years
is the waxing and waning of how the Federal Government
interacts with the States. And, over our several highway bills,
that relationship has evolved and improved. I think that
keeping the flexibility of the States, while at the same time
having the leadership of the Department of Transportation,
creates the coordination where I think we gain those
efficiencies of scale.
However, any notion of improving that coordination is
always a good thing, and we're happy to work with this
committee, working with our stakeholders, and GHSA, in trying
to find a way forward in better coordination in that area.
Senator Wicker. It does seem a bit ironic, that States are
coming forward and saying we need more of a Federal plan, and
the Federal Government is seemingly talking about State
flexibility and federalism.
But, I'll move on to the next question--again with regard
to the Governors Association. They somewhat complained that
there are too many incentive grants and there are too many
different applications and deadlines. Are you familiar with
that----
Mr. Strickland. Very.
Senator Wicker.--complaint? The Governors Association
testifies that the behavioral grants should be consolidated
into one program with earmarks for specific issues. So, what do
you say to that? Would this be a better way to administer the
behavioral highway safety grants?
Mr. Strickland. The work in SAFETEA-LU that was taken up in
this committee, and in the Congress ultimately, worked to
consolidate the number of incentive grants, for this very
reason. And I know----
Senator Wicker. So, there were more before----
Mr. Strickland. Yes, there were.
Senator Wicker.--SAFETEA-LU?
Mr. Strickland. Absolutely.
Senator Wicker. Yes.
Mr. Strickland. We consolidated several of them. And as we
walk into this reauthorization, we are looking to once again
lower the administrative burdens for the States and to
consolidate and make things more efficient, in the right way.
The one thing we have to be mindful of is that, as we are
providing these resources and these programs that are backed by
research, that it has to be data-driven. We want to provide the
right flexibility, but, if you consolidate too much, you may
end up having improper allocation of resources.
I think that we need to have an ongoing conversation with
the States in how we consolidate, but we, at NHTSA and the
Department, do believe that we can make this process more
efficient and less burdensome to the States, and we're looking
forward to working with them, to find a way to do that going
forward.
Senator Wicker. And one other thing, Mr. Chairman, and then
I'll turn it over to Senator Klobuchar; and that is to follow
up on the Chair's statement about distracted driving.
Let me make it clear, every member of this committee is
interested in doing what we can to prevent accidents caused by
distracted driving. It's just important, in my judgment, that
whatever we do and whatever scarce resources we have, be spent
on research-based results--research-based facts.
The Highway Loss Data Institute just released a new study
claiming that they have not found a reduction in crashes after
laws take effect that ban texting by all drivers. As a matter
of fact, there's some research to indicate that, in those
States, drivers actually take steps to hide their texting, and
it results in higher claims and higher accidents. If that's the
case, then we need to know that. It may seem counterintuitive,
but I think we need to base our funding and base our actions on
the real research.
Also, the Insurance Institute for Highway Safety found a
four-fold increase in the risk of injury crashes associated
with phoning. Their hypothesis is, not only are drivers not
complying with the ban, but they are recognizing that using
their cell phones is illegal, and they're trying to hide their
behavior, which, I mentioned earlier, could exacerbate the risk
of drivers taking their eyes off the road.
There are a lot of forms of distracted driving. I know that
the young people, who are perhaps the age of my staffers, can
take an iPod now into the car, and play that iPod, and there
may not be a law against that, but it would very severely
distract someone of my technical knowledge.
My daughter was injured in a distracted-driving accident.
In that case, the driver was changing a CD, which strikes me as
a very dangerous maneuver that, obviously, is done every day,
tens of thousands of times, by drivers. It may be that working
with an iPod or changing a CD in your CD player is more
dangerous than talking on a telephone or texting on a
telephone. I don't know. But, I think if we're going to go at
the problem, we need to go at it based on real research and not
just what seems to us to be the best way to handle that.
So, I can assure you, having had my first-born child
injured in a car accident caused by distracted driving, I want
to get at the worst kinds of distracted driving. I don't hear
anybody talking about changing CDs or playing music or changing
the time on a clock, or eating while driving down the road. I
just want to make sure that we are targeting the most dangerous
kinds of distracted driving.
Mr. Strickland. Mr. Wicker, I could not have said it better
myself, in terms of following----
Senator Wicker. Oh, you probably could have.
Mr. Strickland.--and following the research. That's what we
are committed to do. We have a long-term research plan that we
have provided to the Congress, in terms of how we are going to
approach our research. I want to address a couple things that
you mentioned in your question to me.
First, about the Insurance Institute for Highway Safety's
research. My staff and I are very familiar with this. We have a
lot of concerns about how the study was conducted, because
their methodology did not control for factors that affect the
number of crashes, like enforcement, like education programs,
like high-visibility campaigns, which we are currently
undertaking in Hartford, Connecticut, and in Syracuse. In those
two States where we have had high visibility campaigns along
with strong enforcement, we have seen, in Hartford a 56-percent
drop in hand-held use; and in Syracuse, New York, we had a 38-
percent reduction in hand-held cell phone usage. For texting,
it was 68 percent in Hartford, and 42 percent in Syracuse.
Frankly, I think that the Insurance Institute's analysis
really is taking a look at data that is based on a lot of laws
that may not necessarily be strictly enforced. There are a lot
of other factors that are in play, and we have several
questions out to the Insurance Institute about their
methodology. Frankly, we take a lot of this to task, and we
believe that our research, ongoing and what we know right now,
actually does identify the proper risk.
So, while we stand forward and we are willing to take any
research, we want to make sure that it is scientifically valid
and sound, and we have significant questions about that HLDI
study.
On your second point, about other issues that may be
distracting, you're absolutely right. Actually, the most
distracting thing in your car that we found in our statistics
is an insect. Insects are off the charts. The number of crashes
correlated to having a bee or something in your car is well
above texting and handling a cell phone. Eating, having active
teenagers in the backseat of the car, with the teenage driver,
there are all kinds of things that are distractions. Bottom
line being is this----
Senator Wicker. That little pig going ``wee, wee, wee.''
[Laughter.]
Mr. Strickland.--oh, that little pig, exactly, that----
[Laughter.]
Mr. Strickland.--he's especially annoying.
But, the point being--is this. The driver's job behind the
wheel is to drive. Hands at 10 and 2, and being alert and
aware. Whether you're handling a CD, handling an iPod, eating a
double cheeseburger, or playing with your radio, all of those
things are distracting. You should have your eyes on the road.
Our statistics have shown that if your eyes are off the road
for more than 4 seconds, your risk of accidents are just
exponentially higher.
So, you're absolutely right. It isn't just about texting
and driving using your phone; it's about all distractions. Our
work at NHTSA is encompassing education and enforcement
programs to deal with all of that.
Senator Wicker. Just briefly, you're not suggesting that
the Insurance Institute for Highway Safety would have a reason
to skew their numbers or cook the research----
Mr. Strickland. Oh, no, I'm not saying that they're having
their fingers on influencing research in any particular way. I
just think their data is wrong.
Senator Wicker. I see. Thank you.
Mr. Strickland. Thank you.
Senator Pryor. Senator Klobuchar.
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Well, thank you very much.
And thank you also for bringing that up, Senator Wicker.
And I think you got a sense--Administrator Strickland came
to my State and kicked off a Distracted Driving Summit, and
there were hundreds and hundreds of teenagers, and he not only
impressed them with how cool he was, because he read his whole
notes off the iPad--they were literally, like, ``Whoa''----
[Laughter.]
Senator Klobuchar.--but then just his passion for the issue
and the way he could relate to these kids by talking about
double cheeseburgers, it really worked. And so, I think that,
if I could paraphrase what you were talking about here, it's
just--it is--putting these laws on the books can never be a bad
thing, but it's what you do with those laws. And so, that's
what I want to approach, a little bit. And you want to get the
message out that it's--you don't want to be texting while
you're driving. I actually think it would be helpful for
certain enhanced penalties for when people get--just--I'm
looking at my old prosecutor's job--sometimes it's a per se
violation, if someone's killed or maimed, if you have a DW---a
blood alcohol above a certain level. You could say the same
thing with texting; if you're texting, it's a per se. I think
that would be helpful. But--and those are actually easier to
enforce and prove, because when someone's--dies or killed,
that--someone's killed or is hurt, then that's a huge police
investigation.
But, for the everyday driver, could you talk a little bit
about the enforcement? And we know we're not going to be able
to pick up every single person who's texting. But, I've seen,
with seatbelts, having those days where people know they're
going to do--that the cops are going to do it, it can have a
long-term effect.
And I guess, just with the seatbelt issue, if you could
talk, or maybe look for me, on data showing that--when they
first put out seatbelt laws, I bet you it didn't change
anything the next year.
Mr. Strickland. You're right.
Senator Klobuchar. But, over time, as there was enforcement
mechanisms, as things happened, it did change seatbelt use,
which I understand is one of the main reasons we're having less
fatalities on the road.
So, do you want to talk about this in the context of
history with seatbelts?
Mr. Strickland. Absolutely, happy to, Senator Klobuchar,
and thank you for the opportunity.
The seatbelt program, actually, the ``Click It or Ticket''
program, began in North Carolina in 1984. We adopted it at the
national level and really began putting resources and taking it
nationwide in 2001. Before we began our wide enforcement
messaging on seatbelts, seatbelt usage was at 60 percent in
America--six-zero. Today for 2009, our seatbelt rate use is up
to 85 percent now. That's because, when you have high-
visibility campaigns advertising at the times when people are
watching TV during major television events, sporting events,
and then you have cops everywhere enforcing the law, and you do
it on a regular basis, people get the message. They recognize
the fact that it's points on your license, it's a huge fine,
and behavior changes. We've seen that.
We've only been at it for about a few months with the same
type of campaign, on distracted driving, ``A Phone in One Hand,
Ticket in the Other.'' But, as I conveyed to Senator Wicker,
just a few moments ago, our results are just fantastic. We are
looking at huge reductions in people using their hand-held cell
phone and people texting, because when you have waves of police
officers giving tickets--they've given over 4,500 tickets in
Syracuse, New York, and they've given about 4,200 tickets out
in Hartford, Connecticut. The first day we kicked that campaign
off, they gave out 250 tickets in an hour in Syracuse, New
York. I'll guarantee you that people spread the word. When
people know that you're getting pulled over for using your
phone, people stop using their phone. That's what we're seeing.
We're going to wait for the full pilot to complete. It
takes a year for us to finish the pilot, but I am very
heartened by these results and what we've seen from belts and
what we've seen from impaired driving--``Over the Limit and
Under Arrest''--I feel very strongly that this exact type of
process and campaign and enforcement will work for distracted
driving.
One last note. The captain from Syracuse, New York,
actually came to the Distracted Driving Summit, last week, and
talked about how they are learning countermeasures and evolving
and figuring out how drivers adopt behavior and try to sneak
in--they figured out how to position themselves and how to look
into the cars. Not only are they effective, but they're getting
better. The more that we do this type of thing, and the more
that we do it in more States around the country, I think the
more effective this program will be, and we're going to see
huge numbers move, just like we did in seatbelts.
Senator Klobuchar. Yes, I mean, it just goes without--
anyone who has driven and has tried doing this--and I know a
lot of people in this room have--and you've had that moment
where you sort of veer off the road a little bit, and you get
back on, and you think, ``If someone had been standing there,
if someone had been on a bicycle, if another car had been
there, that would have been it.''
So, it just--for me, we don't need the evidence that it's a
problem. We know that. And we have the decrease in fatalities,
due to seatbelt laws and due to DWI laws. But I think what I
remembered from speaking at your conference, and the research
we did, there still had been some increase with teen accidents
and teen driving that people believe is related to this, the
texting.
There are two approaches--was brought up--Senator
Rockefeller's bill--as we look at how to get States to come
onboard with this. One is the carrot approach. I support both
of these, am on both bills. One is the stick approach. I
wondered if you wanted to comment, weigh in on these two
different approaches. The stick being with highway funds, to
try to get States to move on distracted driving laws, who
haven't moved; and the other is incentives.
Mr. Strickland. The Department of Transportation believes
in any methodology that improves safety. We find that
incentives have worked. We've found that sanctions have worked.
We support both.
Senator Klobuchar. OK, very good. Thank you for that.
The other bill that I wanted to mention was a bill I have
with Senators Gillibrand and Dodd, the STANDUP bill, with--it
looks like graduated driving standards. This isn't just about
texting; this is about realizing that there is such a much
higher accident fatality rate with teenaged drivers, and
especially when they're younger.
Many States, like mine, have graduated drivers licenses
and--where you get--you know, you can only drive with a parent
at first, and then you work your way up.
What do you think? Do you think those work? And do you want
to comment on graduated licensing?
Mr. Strickland. Absolutely, the STANDUP Act is a great
piece of legislation, and we're very supportive of what you're
trying to do in that bill.
Graduated drivers licenses is the foundation for teaching
young drivers how to be good citizens of the road. Now, we've
seen variance in the rigidity and the strictness of graduated
drivers license laws around the country. We support good,
strong ones, which really have younger drivers driving with
adults, making sure that they don't have other teen passengers
in the car to distract them, that there is good educational
component along with the on-road experience. There are real
opportunities for graduated drivers licenses, and the States
that have good laws have shown remarkable increases in safety
of teens, and we are very supportive of all GDL laws that take
that really strong approach.
Senator Klobuchar. Well, I will report that to my 15-year-
old daughter, because she smiled when I told her, and said
``I'll be driving for a long time before you ever get that
through Congress.''
[Laughter.]
Senator Klobuchar. The other thing, I wanted to thank you
again for including me in that Distracted Driving Summit. I
thought it was incredible. I think Secretary LaHood's
leadership, your leadership, has been just so strong on this.
And, to me, a lot of this--we've got to get these laws in
place. It's pretty simple. Then we have to get that education
campaign; and that, combined with enforcement.
We've got a roadmap from work with seatbelts. We know how
we can do this, where it won't be that expensive. What's
expensive is all the lost lives and the accidents and
everything that's happening because of this distracted driving.
So, I want to thank you for that.
And also, I will tell you, Mark, if--Senator Pryor--if you
ever go to the Distracted Driving Summit, it is the most
attentive audience in the world.
[Laughter.]
Senator Klobuchar. No one is doing a BlackBerry, and they
all listen. So, I highly recommend it.
Thank you very much.
Mr. Strickland. No, Senator, thank you. And thank you for
your attendance at the Summit. We really did appreciate that
and thank you for your ongoing leadership in this area.
Senator Pryor. Mr. Strickland, thank you for being here
today. And, like I said, I have some follow-up questions that
I'll submit in writing. We're going to leave the record open
for 2 weeks, so we'd love to get those to you as quick as
possible. And I'm sure some others have those, as well.
Thank you.
Mr. Strickland. Yes, sir. Senator, I'd also like to submit
for the record this chart, on our SAFETEA-LU Performance
Measures, that I have on display. It gives a summation of all
of our programs and the impact they've had on moving safety
forward.
Senator Pryor. OK, great. Well I appreciate that. Yes,
we'll make that part of the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Pryor. And I do have one follow-up question. Again,
it relates to Senator Rockefeller, who couldn't be here today.
But, I--there's a--NHTSA is undergoing the Occupant Ejection
Mitigation Rule.
Mr. Strickland. Yes.
Senator Pryor. Do you have an update on that for the----
Mr. Strickland. Yes, I do, actually.
Senator Pryor. I know that you guys are looking at trying
to reduce the number of ejections and, you know--you know the--
--
Mr. Strickland. Absolutely.
Senator Pryor.--statistics better than I do. But, I know
that you guys are in process, so if you could give us that
update, that'd be great.
Mr. Strickland. Absolutely. In December 2009, we issued our
Notice of Proposed Rulemaking on the ejection mitigation
standard. What this deals with is protecting people against
full and partial ejections through side windows, especially
those that happen in rollover crashes.
The comment period closed in February of this year and we
intend on issuing the final rule by January of 2011, and we are
on pace to do that.
Senator Pryor. Good. Well, thank you. And again, we may
have some more follow-ups there, as well, but thank you.
Mr. Strickland. Thank you so much, Senator. I appreciate
it.
Senator Pryor. You bet. Thank you.
And what we'll do now is bring up our second panel. And
what I'll--would like to do is just go ahead and introduce them
very briefly as the staff is swapping out the microphones and
all that.
And we have a vote on the floor, here, in about 10 minutes,
so--we have four witnesses. I'd love for the--each one to keep
their opening statements to 5 minutes or less, emphasis on the
``less.'' That'd be great, if we could. And then what I'll do
is probably recess the Subcommittee, run and vote. I think we
have two votes. And I'll come right back. So, we may take a 10-
, 15-, whatever it may take, but a few-minute recess, and then
come back in for the testimony on that second panel.
Our first witness is Ms. Jacqueline Gillan, Vice President,
Advocates for Highway and Auto Safety. Our second will be Mr.
Robert Strassburger, Vice President, Vehicle Safety &
Harmonization Alliance of Automobile Manufacturers. Third will
be Ms. Laura Dean-Mooney, President, Mothers Against Drunk
Driving. And fourth is Mr. Neil Pedersen, Administrator of the
Maryland State Highway Administration, on behalf of the
Governors Highway Safety Association.
So, what I'd like to do is, Ms. Gillan, ask you to make
your statement, and again, remind all the witnesses that we'll
put your written statement in the record, and if we could be 5
minutes or less, that'd be great.
STATEMENT OF JACQUELINE S. GILLAN, VICE PRESIDENT, ADVOCATES
FOR HIGHWAY AND AUTO SAFETY
Ms. Gillan. OK, thank you.
Is this on? OK. There it is. Thank you.
Good morning, Chairman Pryor and Senator Klobuchar. Thank
you for inviting me to testify.
First of all, let me commend this committee for being an
important bipartisan force in advancing highway and auto safety
issues. In fact, you've had a very busy last year, in moving
several pieces of key legislation, which advocates in the
safety community strongly support: the Motor Carrier--the
Motorcoach Enhanced Safety Act, the Motor Vehicle Safety Act of
2010, in response to sudden unintended acceleration in Toyota
vehicles, and the Distracted Driving Prevention Act. And we
strongly hope that these bills will be passed before the end of
the 111th Congress.
Clearly, the recent announcement about a significant drop
in highway fatalities is great news for all of us. However,
annual motor vehicle deaths are still equivalent to a major
airplane crash every single day of the year. Recent declines in
highway deaths these past 2 years are almost certainly related
to the economic downturn, high gas prices, and a decrease in
discretionary driving. In fact, I have a chart, in my
testimony, which shows how declines in highway fatality
corresponds with economic downturns.
Currently, we have at hand both traffic safety
technological solutions and safety programs that have the
potential to make drastic reductions. But, the problem is,
we're waiting too long to act on some of these proven and
effective safety solutions.
Over the past 15 years, through different authorization,
we've spent billions of dollars on State traffic safety
programs and various issue-specific incentive grants. And,
while these are worthwhile efforts and have resulted in some
really terrific State and local law enforcement campaigns, they
suffer from two major flaws. First, the Highway Safety
Program's grant programs generally lack safety performance
measures to provide accountability and ensure effectiveness.
And second, the various incentive grant programs have not
resulted in the adoption of the most effective highway safety
laws by every State. And over time, the States have
successfully insisted on program flexibility, both in terms of
funding and performance, at the expense of accountability and
effectiveness.
And we strongly support the approach taken in the House
Transportation Infrastructure Committee draft authorization
bill to establish performance measures for these traffic safety
grant programs, so that we can increase accountability and we
can direct resources that have the best opportunity for high
payoff.
Another significant obstacle in reducing highway deaths and
injuries is this lack of uniform traffic safety laws. And
included in my testimony are various maps which show which
States have motorcycle helmet laws, primary seatbelt laws,
tough drunk-driving laws, and teen driving laws. And right now,
we have this patchwork quilt, and it's really essential that we
have Federal leadership in this area. And it was Federal
leadership that resulted in every single State passing a
minimum-21 drinking age, because of Senator Lautenberg's
efforts, and .08 BAC, as well as minimum licensing standards
for commercial drivers, sponsored by former Senator Danforth,
and a zero-tolerance BAC law to combat underage drinking and
driving, sponsored by the late Senator Byrd.
Every time Congress has used a sanction, every State has
adopted the law, and not a single State has ever lost a single
dollar of Federal aid highway funds, and thousands of lives
have been saved. There are--no question that sanctions work.
And, while incentive grants may be the appropriate means to
start the process of encouraging States to act, sanctions have
always been successful in finishing the job. And there are
several examples of that in SAFETEA-LU, where we have a primary
incentive grant program, a half a billion dollars, and we still
don't have every State with a primary enforcement seatbelt law.
And every State needs that.
We also commend Senator Klobuchar for the STANDUP Act.
Motor vehicle crashes remain the leading cause of death for
teenagers in every State. That's really an important bill that
starts out with incentive grant programs and then moves to
sanctions.
Some advice. as a former mother of two teens, I tried
desperately to get Maryland--the State of Maryland to toughen
their laws before my children started driving. It didn't work
out that way, so there were two laws in our house. There was
Maryland law and Mom's law. And Mom's law prevailed. And I can
say I safely got them through that period. So.
But, definitely, we want to make sure that every teen in
every State is covered by a strong graduated drivers licensing
law. We know too much about how successful these laws--and we
know that, right now, too many teens are dying every day on our
highways.
Another important issue is impaired driving. It is still a
scourge on our highways, and we strongly support legislation,
introduced by Senator Lautenberg, on requiring States to pass
ignition interlock laws.
I could go on. As you know, we have worked very closely
with this committee on the Distracted Driving Prevention Act,
which we support, and also the Alert Drivers Act, by Senator
Schumer.
In conclusion, there are really no acceptable excuses
anymore for delaying, any longer, the adoption of these
lifesaving laws. It's really like withholding a vaccination.
And we also need to improve the effectiveness of traffic safety
programs, and particularly some of the incentive grant
programs.
I appreciate the opportunity to testify. We look forward to
working with you. Clearly, the reauthorization bills have
always had an important and strong safety component, and we're
very happy with the bills that are moving through this
committee right now.
Thank you.
[The prepared statement of Ms. Gillan follows:]
Prepared Statement of Jacqueline S. Gillan, Vice President,
Advocates for Highway and Auto Safety
Good morning Mr. Chairman, Ranking Member, and Members of the
Senate Committee on Commerce, Science, and Transportation. I am
Jacqueline Gillan, Vice President of Advocates for Highway and Auto
Safety (Advocates). Advocates is a coalition of public health, safety,
and consumer organizations, insurers and insurance agents working
together to prevent highway deaths and injuries through the adoption of
safety policies and regulations and the enactment of state and Federal
safety laws. This year, Advocates celebrated 20 years as a unique
coalition dedicated to improving highway and auto safety by addressing
it as a public health issue.
Thank you for the opportunity to testify before the Commerce,
Science, and Transportation Committee, which has been an important
force in advancing highway and auto safety laws these past two decades.
Members of this Committee, Democrats and Republicans, have been leaders
on numerous safety legislative efforts addressing impaired driving,
occupant protection and motor carrier safety. In fact, there are
several critically important safety bills that this Committee is
advancing and Advocates strongly supports that we hope will be enacted
into law during the remaining days of the 111th Congress, including S.
554, the Motorcoach Enhanced Safety Act of 2009, S. 3302, the Motor
Vehicle Safety Act of 2010 (MVSA) and S. 1938, the Distracted Driver
Prevention Act of 2009. In every prior surface transportation
authorization bill enacted by Congress in the past 20 years, Advocates'
safety priorities have focused on supporting enactment of programs,
policies and laws that lead to safer roads, safer vehicles and safer
drivers. As I discuss in this testimony, significant progress in
achieving reductions in highway fatalities and injuries, and in
preventing a return to higher fatality levels, will require Congress to
adopt new safety countermeasures in all three areas. As the Committee
considers the needs for traffic safety programs in the next surface
transportation authorization bill there are a number of issues that we
urge you to consider that will improve safety nationwide and ensure
that the recent downward trend in traffic fatalities is not merely a
short-term statistical blip. All of our proposals are effective both in
terms of preventing crashes, saving lives, reducing disabling injuries,
and saving billions of dollars for our Nation.
Overview of Traffic Safety
Traffic safety for the past two decades reflects both our successes
and failures as a nation to protect our citizens from the tragic loss
of life, serious physical injuries and enormous costs imposed by motor
vehicle crashes. We have been successful in driving down the annual
fatality rate over the long-term by increasing seat belt use and child
occupant protection, enacting tough drunk driving countermeasures,
adopting truck size limits, requiring vehicles to be equipped with
proven safety technologies like airbags and electronic stability
control, and designing more crashworthy vehicles.
At the same time, however, there is a major unfinished safety
agenda that Congress needs to address. Recent deaths and recalls
involving Toyota vehicles have revealed resource and regulatory gaps in
our government's oversight and enforcement of safety defects, revolving
door concerns involving agency staff, overdue vehicle safety standards
and the lack of transparency that has blocked consumers from access to
essential information that affects their safety.
Additionally, we have failed to close gaps in state traffic safety
laws that would prevent many drunk drivers from getting behind the
wheel, protect novice teen drivers by enacting strong graduated driver
licensing (GDL) programs in every state, stop the huge number of
occupant fatalities by requiring seat belt and motorcycle helmet use,
and protect the public from emerging safety threats such as distracted
driving and dangerous overweight trucks. All of these safety problems
result in thousands of preventable highway fatalities each year. The
failure of all states to adopt the most effective safety requirements
in these areas is a national tragedy that impedes the best intentioned
programs from achieving national safety goals.
Recent Data Trends
For 15 years, from 1993 through 2007, the annual national traffic
fatality total exceeded 40,000 deaths a year. Despite improvements in
the fatality rate, the actual number of highway deaths remained
relatively static, creeping up to as many as 44,000 deaths per year,
with a cumulative total of more than 630,000 traffic deaths in that
decade and a half.\1\ Yes, the continual decline in the overall
fatality rate meant that despite annual increases in registered
vehicles and vehicle miles traveled (VMT), our efforts were holding the
fatality total in check. However, it also signaled an inability to make
sufficient and sustained progress on the core safety issues that
contribute to the unacceptably large annual death toll. The fact that
the annual number of fatalities remained constant meant that the core
safety problem was not getting any smaller. Not only does this level of
tragic, needless loss translate into over 100 persons killed each and
every day--the equivalent of a daily commercial passenger airline
crash--but it exacts an annual economic toll of more than $230 billion
\2\ in economic costs--a yearly crash ``tax'' of about $800 for every
child, woman and man in the United States.
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\1\ Traffic Safety Facts 2007, Table 4, p. 18, DOT HS 811 002,
National Highway Traffic Safety Administration (NHTSA).
\2\ The Economic Impact of Motor Vehicle Crashes 2000, DOT HS 809
446, National Highway Traffic Safety Administration (NHTSA) (May 2002)
available at http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/
Communication%20&%20Consumer%20Information/Articles/Associated%20Files/
EconomicImpact2000.pdf.
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The most recent safety data provides welcome news--deaths are down
and many lives have been saved. Traffic fatality and other indicators
in the past 2 years have dropped below 40,000 deaths for the first time
since 1992. In the past 2 years reductions in fatalities exceeded all
predictions with traffic deaths dropping to 37,423 in 2008 and to
33,808 in 2009.\3\ While these improvements are gratifying because they
mean fewer lives were lost on our highways, it does not necessarily
mean that we have permanently broken through the 40,000 fatality
barrier and can relax our efforts to improve public safety. Even with
the recent decreases in annual fatalities, motor vehicle crashes remain
the leading cause of death for Americans ages 3 to 34.\4\ If history is
our guide, the 2008-2009 fatality decrease is likely to be only a
temporary decline that will certainly reverse, as has occurred
following each previous decrease in fatalities that accompanied
economic downturns. Unless Congress takes additional steps to ensure
effective safety programs are in place to prevent a return to fatality
levels that exceed 40,000 deaths per year, history will be repeated.
---------------------------------------------------------------------------
\3\ Highlights of 2009 Motor Vehicle Crashes, Traffic Safety Facts
Research Note, DOT HS 811 363, NHTSA (Aug. 2010).
\4\ 10 Leading Causes of Injury Death by Age Group Highlighting
Unintentional Injury Deaths, United States--2006, National Vital
Statistics System, National Center for Health Statistics, Center for
Injury Prevention and Control, CDC.
---------------------------------------------------------------------------
Drops in Highway Deaths Correlate with Economic Downturns
A significant portion of the current fatality reduction is due to
the recessionary downturn in the national economy beginning in 2007.
Historically, declines in traffic fatalities are correlated with
reductions in economic activity and disruptions to the national
economy. It is well documented that the economic impact of events such
as high gas prices, extensive unemployment and recession are
accompanied by large decreases in fatality statistics due to reduced
discretionary driving and economic activity. To place the recent
fatality figures in perspective, the chart included in my testimony
indicates that at least since 1971, highway traffic deaths have
temporarily declined each time the national economy has experienced a
recession, only to increase again as the economy recovered.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
In June, the National Highway Traffic Safety Administration (NHTSA)
issued a report that found ``similar significant declines in fatalities
were seen during the early 1980s and the early 1990s. Both of these
periods coincided with significant economic recessions in the United
States.'' \5\ The NHTSA report goes on to document the striking
association between the decline in fatalities, especially among younger
drivers ages 16 to 24, and unemployment rates in major cities.\6\
``[L]arge fatality declines tended to coincide with areas that had
higher increases in rates of unemployment.'' \7\
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\5\ An Analysis of the Significant Decline in Motor Vehicle Traffic
Fatalities in 2008 (Significant Decline Report), pp. 1-2, DOT HS 811
346, NHTSA (June 2010).
\6\ Id., pp. 17-22, using Bureau of Labor Statistics unemployment
rates for Metropolitan Statistical Areas.
\7\ Id. at p. 2.
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There is good reason to believe that there is a cause and effect
relationship because as economic conditions deteriorate, especially
when accompanied by high unemployment rates, spending on gasoline and
travel decline as well. Even before the agency report was issued, the
NHTSA Administrator, David Strickland, cautioned that while the
downward trend in fatalities is encouraging, ``do not expect [it] to
continue once the country rebounds from its current economic hardships.
With any rebound, the expectation is that discretionary driving will
increase, which in turn may reverse fatality reductions with increased
exposure.'' \8\ The question for the safety community, government
leaders and elected officials is how can we sustain and improve the
windfall reduction in fatalities as the economy rebounds.
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\8\ Budget Estimates, Fiscal Year 2011, Statement of the
Administrator at 1-2, NHTSA (Feb. 2011).
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The Unfinished Safety Agenda
As the economy recovers and economic activity, employment and
discretionary driving return to pre-recession levels, so too will the
number of motor vehicle crashes and the traffic fatality total. NHTSA
has noted, however, that following past recoveries while traffic
fatalities increased to higher levels the fatality total did not return
to the levels that existed prior to the recession.\9\ While true, this
outcome is not guaranteed. Most likely, the reduced levels of annual
fatalities experienced after the previous two recessionary periods were
the result of improved safety regulations and programs adopted in the
years preceding the recovery. We have cost-effective, successful safety
countermeasures at hand that can address both traffic safety and
technological improvements but we are waiting too long act. For this
reason, it is critical that Congress adopt strong safety measures in
the next surface transportation reauthorization bill if we are to
ensure that the annual fatality total remains at or below the 2009
level of 34,000 traffic fatalities.
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\9\ Significant Decline Report, p. 2.
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The Traffic Safety and Incentive Grant Programs
Over the past 15 years, through three separate authorization
laws,\10\ the Nation has spent billions of dollars on traffic safety
programs comprised of the Highway Safety Programs (Section 402) \11\
and various issue-specific incentive grant programs.\12\ The dollar
amounts are huge: more than $3.5 billion has been authorized for
highway safety and various incentive grant programs over the past 10
years. The highway safety and incentive grant programs have supported
many worthwhile efforts, especially state and local enforcement
campaigns that have been the bulwark of local safety initiatives. Also,
several states have adopted optimal safety laws in response to the
incentive grant programs. In part as a result of these efforts, NHTSA
estimates that many lives have been saved through seat belt and child
restraint use.\13\ Yet, no discernable progress was made in bringing
down the total number of traffic deaths until 2008. While these
programs are the cornerstones of Federal and state traffic safety
efforts, they suffer from two major flaws. First, the highway safety
grant programs generally lack safety performance measures to provide
accountability and ensure effectiveness. Second, the various incentive
grant programs have not resulted in the adoption of the most effective
traffic safety laws in all states.
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\10\ The Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59 (Aug. 10,
2005); the Transportation Equity Act for the 21st Century (TEA-21),
Pub. L. 105-178 (June 9, 1998); and, the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240 (Dec.
18, 1991).
\11\ 23 U.S.C. 402.
\12\ SAFETEA-LU included incentive grant programs for occupant
protection, safety belt performance, traffic safety information
systems, alcohol-impaired driving countermeasures, motorcyclist safety,
and child safety and child booster seat safety.
\13\ Lives Saved in 2008 by Restraint Use and Minimum Drinking Age
Laws, Traffic Safety Facts, DOT HS 811 153, NHTSA (June 2009).
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Lack of Performance Measures and Effective Oversight
The Section 402 highway safety grant program has been the
traditional means of providing the states with Federal funding to
support state and local safety initiatives, education and enforcement
efforts. Over time, however, the insistence on providing greater
program flexibility, both in terms of funding and performance, has
complicated program accountability and oversight. By 1998, NHTSA had
``adopted a performance-based approach to oversight, under which the
states set their own highway safety goals and targets. . . .'' \14\
Even with each state developing an annual safety plan, weaknesses in
state plans were revised through subsequent ``improvement plans'' but
agency regional offices made limited and inconsistent use'' of the
revised plans.\15\ In fact, Congress had to require that NHTSA review
each state highway safety program at least once every 3 years and
perform other standard oversight procedures.\16\
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\14\ Highway Safety: Better Guidance Could Improve Oversight of
State Highway Safety Programs, p. 1, GAO-03-474, Government
Accountability Office (GAO) (Apr. 2003).
\15\ Id., p. 4.
\16\ 23 U.S.C. 412; enacted as Title II, 2008(a), SAFETEA-LU,
Pub. L. 109-59 (Aug. 10, 2005).
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The incentive grant programs also lack adequate performance
measures to determine effectiveness. According to the Government
Accountability Office (GAO), ``state performance is generally not tied
to the receipt of the grants. . . .'' \17\ In addition, of the current
incentive programs, ``three of the five grants [programs] do not
include performance accountability mechanisms that would link the
receipt of grant funds to states' ability to meet those performance
goals.'' \18\ Despite the increased management reviews and oversight of
state programs required by Congress, GAO found that NHTSA does not
analyze, at the national level, the agency's recommendations to states
made as part of the review process or systematically track whether
states have implemented the agency's recommendations.\19\ Most damning,
in 2008 GAO concluded that over the previous 10 years a key indicator
of program effectiveness--traffic fatalities--had not improved.\20\
---------------------------------------------------------------------------
\17\ Traffic Safety: Grants Generally Address Key Safety Issues,
Despite State Eligibility and Management Difficulties, p. 4, GAO-08-
398, GAO (Mar. 2008).
\18\ Id.
\19\ Traffic Safety Programs: Progress, States' Challenges, and
Issues for Reauthorization, Statement of Katherine Siggerud, Managing
Director Physical infrastructure, p. 3, Testimony Before the
Subcommittee on Highways and Transit, Committee on Transportation and
Infrastructure House of Representatives, p. 3, GAO (July 16, 2008).
\20\ Id.
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Although in the 2-years since the GAO report there has been a
downturn in total traffic fatalities, Advocates remains convinced that
the traffic safety programs are in desperate need of clear and specific
performance measures. The approach taken in the House Transportation
and Infrastructure Committee draft reauthorization bill has merit. It
requires state safety plans to include ``quantifiable performance
targets' and also directs the Secretary of Transportation to establish
performance targets in each safety category.\21\ This will go a long
way toward placing the grant programs on a sounder footing in terms of
providing greater accountability and will, ultimately, improve the
effectiveness of the highway safety and incentive grant programs.
---------------------------------------------------------------------------
\21\ Surface Transportation Authorization Act of 2009, 2003,
Transportation and Infrastructure Committee, markup draft [Committee
Print] (June, 2009).
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Grant Programs Have Not Resulted in All States Adopting Basic Safety
Laws
The traffic safety and incentive programs have not resulted in the
adoption of optimal safety laws by all states. Advocates ``2010 Roadmap
Report'' \22\ evaluating state adoption of 15 basic traffic safety laws
makes it abundantly evident that many states have not taken the vitally
important and proven safety actions that are urgently needed to save
lives on our highways. Because states receive funding, irrespective of
whether the state has adopted primary enforcement seat belt, strong GDL
programs, alcohol ignition interlock, all-rider motorcycle helmet, and
other effective traffic safety laws, the program cannot achieve maximum
lifesaving benefits. New York was the first state to adopt a primary
enforcement seat belt law in 1984--over 25 years ago--yet today only 31
states and the District of Columbia have adopted this critical safety
law. Despite the fact that Congress provided an incentive grant program
with $500 million to encourage states to adopt primary enforcement seat
belt laws in the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU),\23\ only 10 states have
enacted primary enforcement laws since 2005.\24\
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\22\ Teens, Texting, Tragedy, The 2010 Roadmap To State Highway
Safety Laws, Advocates (Jan. 2010) (2010 Roadmap Report) available at
http://www.saferoads.org/2010-roadmap-state-highway-safety-laws.
\23\ Grants for primary safety belt use laws, Title II, 2005,
SAFETEA-LU, codified at 23 U.S.C. 406.
\24\ Grants Generally Address Key Safety Issues, Despite State
Eligibility and Management Issues, Government Accountability Office
(Mar. 2008), available at http://www.gao.gov/new.items/d08398.pdf.
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States that have adopted primary enforcement laws have maximized
the effort to increase belt use rates and use the program grants to
reinforce the message through public information, education and
enforcement. It is well documented that states with primary enforcement
seat belt use laws generally increase seat belt use rates by 10
percentage points or more after enactment of the law.\25\ However,
states that have not enacted primary enforcement laws are not making
the maximum effort to increase belt use rates. This is of critical
importance because each year thousands of people die needlessly just
because they did not buckle up.\26\
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\25\ Adoption of primary enforcement seat belt laws increased seat
belt use rates by 11 percent in New Jersey, 13 percent in Alabama and
14 percent in Michigan. Strengthening Safety Belt Use Laws--Increase
Belt Use, Decrease Crash Fatalities and Injuries, Traffic Safety Facts,
Laws, NHTSA (Apr. 2004) available at http://www.nhtsa.gov/people/
injury/new-fact-sheet03/SeatBeltLaws.pdf.
\26\ In 2008, NHTSA estimated that an additional 4,152 lives could
have been saved with 100 percent belt use. Lives Saved in 2008 by
Restraint Use and Minimum Drinking Age Laws, p. 1, Traffic Safety
Facts, DOT HS 811 153, NHTSA (June 2009).
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Incentive grant programs should be leveraged with requirements that
all states must eventually adopt policies that have proven effective in
improving safety. Experience has shown that the most efficient way to
increase public awareness and compliance with safety policies is
through the passage of state laws, coupled with public education and
local enforcement. Time after time, in state after state, it has been
shown that education without the law does not accomplish the goal of
improved traffic safety. We found this out in our early efforts to
reduce drunk driving. Slogans, public service announcements, and key
chains were ineffective strategies but tough drunk driving laws with
strong penalties were effective. While incentive programs are the
appropriate means to start the process of encouraging states to adopt
tried and true safety practices, Congress must eventually require
compliance with proven public safety policies through the use of
sanctions of Federal-aid highway funding.
For this reason, Advocates believes it is already time to turn
incentive grant programs into sanctions in order to advance adoption of
laws that are proven to dramatically save lives. With regard to primary
enforcement seat belt laws, all-rider motorcycle helmet laws,
comprehensive teen driving laws and impaired driving laws, the
scientific data is overwhelming and it is beyond question that these
laws save lives and reduce state and Federal health care costs. These
laws are like a vaccine and every family in every state should be
protected. The maps included in my testimony show that state adoption
of optimal safety laws has resulted in a patchwork quilt of lifesaving
laws across the country. Incentive grants have never been able to
achieve uniform adoption of critical traffic safety laws and it is time
to turn the incentives into sanctions. For this reason, Advocates
supports the House Transportation and Infrastructure Committee highway
reauthorization bill which includes proposed sanctions for states that
fail to enact primary seat belt enforcement and alcohol ignition
interlock laws.\27\ Advocates' supports these provisions because when
it comes to public safety, sanctions save lives.
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\27\ Surface Transportation Authorization Act of 2009, 1516,
Enforcement of Primary Seat Belt Laws, and 1517, Use of Ignition
Interlock Devices to Prevent Repeat Intoxicated Driving, Transportation
and Infrastructure Committee, markup draft, House of Representatives
[Committee Print] (June, 2009).
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When Congress Acts, States React and Lives Are Saved
Congressional leadership is critical and has been effective in
encouraging state action with the adoption of Federal sanctions. The
potential withholding of Federal highway construction funds--
sanctions--has been an effective and successful means to expedite state
passage of safety laws and to create a uniform, national safety policy.
Over 20 years of legislative history has proven that when Congress
reinforces the need for states to pass a lifesaving law by invoking
sanctions, states consistently and promptly enact those life-saving
laws. It is important to point out that no state has ever lost a single
dollar of Federal highway funds as a result of a Federal sanction.
In the 1980s, for example, Americans lacked a uniform law across
all 50 states that set a minimum drinking age of 21 to eliminate the
``blood borders'' problem. The differences in drinking age laws
resulted in young drivers from states with a minimum drinking age of 21
driving to adjacent states that had a lower legal drinking age,
consuming alcohol, and then driving home while under the influence.
This resulted in the deaths of tens of thousands of teen drivers and
young passengers, earning these areas the designation, ``blood
borders.'' In 1984, because of the leadership of Sen. Lautenberg (D-
NJ), Congress enacted the Uniform Drinking Age Act,\28\ which required
states to enact a minimum age 21 law for the purchase and use of
alcoholic beverages or face a potential decrease in Federal highway
funds.\29\ The law was also championed by then-Secretary of
Transportation, Elizabeth Dole, and signed into law by President Ronald
Reagan. Within 3 years, the District of Columbia and the 28 states that
lacked an age 21 minimum drinking age law met the Federal standard.
Since the enactment of the Uniform Drinking Age Act the overall
alcohol-related traffic fatality rate has been reduced by half,\30\ and
NHTSA estimates that 27,052 lives have been saved as a result.\31\
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\28\ Pub. L. 98-363 (July 17, 1984), codified as National Minimum
Drinking Age, 23 U.S.C. 158.
\29\ Determine Why There Are Fewer Young Alcohol-Impaired Drivers,
What caused the decrease?, DOT HS 809 348. NHTSA (1998), available at
http://www.nhtsa.dot.gov/people/injury/research/FewerYoungDrivers/
iv_what_caused.htm.
\30\ Statistical Analysis of Alcohol-Related Driving Trends, 1982-
2005, DOT HS 810 942. NHTSA (2008), available at http://www.nhtsa.gov/
staticfiles/DOT/NHTSA/NCSA/Content/Reports/2008/810942.pdf.
\31\ Young Drivers. Traffic Safety Facts 2008 , DOT HS 811 169,
NHTSA (2009), available at http://www-nrd.nhtsa.dot.gov/Pubs/
811169.PDF.
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Similarly, in the Commercial Motor Vehicle Safety Act of 1986,\32\
Congress included a sanction to encourage states to pass a law
requiring specific criteria for the testing and licensing of commercial
drivers.\33\ This provision was authored by the Senate Commerce,
Science and Transportation Committee. By 1992, every state had passed a
law requiring the testing and licensing standards outlined by the
Secretary of Transportation.
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\32\ Title XII, Pub. L. 99-570 (Oct. 27, 1986), codified as 49
U.S.C. 31301 et seq..
\33\ The Commercial Motor Vehicle Safety Act of 1986 and Classified
Driver Licensing. Transportation Research Board Publications Index,
Accession Number 00475965, 1988, p. 14, available at http://
pubsindex.trb.org/view.aspx?id=286034.
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In another example, 26 states lacked a zero tolerance law to better
enforce the age 21 drinking law. Congress responded by including in the
1995 National Highway Systems Designation Act, a provision authored by
the late Senator Robert Byrd (D-WV), requiring a portion of Federal
highway funds be withheld from states that failed to enact a zero
tolerance law for young drivers.\34\ By 1998, every state and the
District of Columbia had passed a zero tolerance law.
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\34\ Title III, 320, Pub. L. 104-59 (Nov. 28, 1995), codified as
23 U.S.C. 161.
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The experience enacting a uniform drunk driving threshold is also
instructive. In 1998, Congress initially tried using incentive grants
to encourage states to pass .08 blood alcohol concentration (BAC)
limits. After several years, only 2 states and the District of Columbia
had passed .08 percent BAC laws. Finally, in the Department of
Transportation Appropriations Act for Fiscal Year 2001, Congress
required the remaining states without .08 BAC laws to enact the law
lose a portion of their highway funds.\35\ Ten states passed .08 BAC
laws within the first year after the sanction was applied and, by 2005,
all 33 states that lacked a .08 BAC law had adopted the law.
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\35\ Title III, 351, Pub. L. 106-346 (Oct. 23, 2000), codified as
23 U.S.C. 163. See .08 BAC illegal per se level, Traffic Safety
Facts, vol. 2 No. 1, NHTSA (March 2004), available at http://
www.nhtsa.dot.gov/People/injury/New-fact-sheet03/fact-sheets04/Laws-
08BAC.pdf.
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These facts illustrate that the use of sanctions by Congress to
prompt states to enact lifesaving laws has been universally effective.
Not only have the states enacted these safety laws in a timely fashion,
but not one state has lost any Federal highway funds, and thousands
upon thousands of lives have been saved as a result. As important,
there is a heavy price to be paid for the failure of states to adopt
these life-saving laws. According to NHTSA, while many lives have been
saved by seat belt and motorcycle helmet use over the years, an equal
or greater number of lives could have been saved (but were not) because
of the failure of vehicle occupants and motorcycle riders to take basic
precautions.\36\ The failure of states to enact these safety policies
as state law has been a major contributing factor in these losses.
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\36\ According to the NHTSA, in the 35 year period from 1975 to
2008 child restraints saved 8,959 children, frontal air bags (in use
general use since the late 1980s but not universally mandated until the
mid-1990s) saved 27,840 occupants, and the 21-Year-Old Drinking Age law
saved 27,052 people. NHTSA estimates that while seat belt use saved
255,115 occupants, they could have saved an additional 359,845 people
if all occupants had used seat belts. Likewise, while motorcycle helmet
use saved 30,495 lives over the 35 year period, another 27,433 lives
could have been saved if all riders had worn protective helmets.
Traffic Safety Facts 2008, DOT HS 811 170, Final Edition, Back Cover,
NHTSA (2009).
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Five Laws That Will Make American Families Safer
The opportunities to improve traffic safety are many. This
testimony addresses five (5) critical safety measures that Congress
should pass that will protect every family in every state. These
opportunities will save thousands of lives and, in some cases, include
incentive grants coupled with sanctions to accelerate state adoption of
uniform traffic safety laws that require:
optimal graduated driver license requirements for teenage
drivers;
primary enforcement seat belt use laws;
alcohol ignition interlock technology for convicted drunk
and drugged drivers;
ban on the use of distracting electronic devices while
driving; and
all-rider motorcycle helmet use.
Teenage Driving Safety--Strong, Comprehensive Graduated Driver
Licensing (GDL) Laws Save Lives
Motor vehicle crashes remain the leading cause of death for
teenagers between 15 and 20 years of age.\37\ The number and percentage
of young licensed drivers in the U.S. population has increased from
12.6 million (4.8 percent) in 1997, to 13.2 million (6.4 percent) in
2007.\38\ The teen driver population will continue to increase as the
current cohort of 12- to 19-year-olds expands to 34.9 million this
year, increasing the pool of those eligible to obtain drivers
licenses.\39\ Young drivers also represented 14 percent of all drivers
involved in police-reported crashes in 2008.\40\
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\37\ Young Drivers, Traffic Safety Facts 2008, at 1, DOT HS 811 169
(2009).
\38\ Id.
\39\ U.S. Bureau of the Census (1999).
\40\ Young Drivers at 2.
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Although in 2008 there was a notable 23 percent decline in
fatalities among 16 to 20 year old vehicle occupants,\41\ 16 to 20 year
olds still comprised 13 percent of all occupant fatalities,\42\ and
young drivers remain over-represented in terms of motor vehicle
crashes. In 2009, 2,336 drivers, ages 15 to 20 years old, were involved
in fatal crashes, involving a total of 5,623 fatalities, including
their passengers, pedestrians and the drivers and occupants of other
vehicles.\43\ Young drivers comprise about 12 percent of all drivers
who are involved in fatal crashes.\44\
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\41\ Significant Decline Report, p. 8.
\42\ Id.
\43\ Fatalities in Crashes Involving a Young Driver (Ages 15-20),
by State and Fatality Type, FARS 2009, NHTSA. Data provided in response
to NHTSA search request.
\44\ Young Drivers, Traffic Safety Facts 2008 at 1.
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Over the past 5 years, from 2005 through 2009, a staggering total
of 36,071 fatalities have occurred in motor vehicle crashes involving
teen drivers nationwide. The map on the next page indicates the
cumulative number of deaths in crashes involving teen drivers by state.
More than half of those deaths, 19,826, have occurred in the 24 states
represented by Members on the Commerce, Science and Transportation
Committee.\45\ This makes a strong case for the need to protect teen
drivers in a uniform manner, from state-to-state, regardless of where
novice drivers learn to drive.
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\45\ The state-by-state breakdown of deaths in teen driver fatal
crash from 2005 to 2009 for states represented on the Senate Commerce,
Science, and Transportation Committee is: AK (75); AR (596); CA
(3,385); FL (2,839); GA (1,326); HI (105); KS (404); LA (848); MA
(365); ME (154); MN (473); MO (1,057); MS (778); ND (116); NE (310); NJ
(539); NM (351); NV (307); SC (808); SD (144); TX (3,218); VA (813); WA
(516); and, WV (299).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Fortunately, there is a proven method for reducing teen driving
deaths. Graduated driver license (GDL) laws phase-in driving privileges
over time and in low risk circumstances. This allows teen drivers to be
introduced slowly to driving and to obtain driving experience under
safer conditions. Research has shown the effectiveness of state GDL
programs in reducing teen driver crashes and teenage fatalities. A
recent study evaluating New Jersey's unique combination of a higher
licensing age and a strong GDL system applicable to all novice drivers
shows that after GDL implementation, there were significant reductions
in the crash rates of 17-year-olds in all reported crashes (16
percent), injury crashes (14 percent) and fatal crashes (25
percent).\46\ In Illinois, there has been a dramatic drop--more than 50
percent--in teen-related fatalities since their comprehensive GDL
program took effect in January 2008.\47\ Even factoring in fewer
fatalities due to reduced exposure in an economic downturn, Illinois'
strong set of GDL laws undoubtedly played a significant role in this
successful outcome.
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\46\ Williams, et al., Evaluation of New Jersey's Graduated Driver
Licensing Program, Traffic Injury Prevention 11:1-7 (Feb. 2010).
\47\ Information provided by the Office of the Illinois Secretary
of State, available at www.cyberdriveillinois.com/press/2009/january/
090128d1.html, and from the Illinois Department of Transportation,
available at http://www.dot.il.gov/press/r040709.html.
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Advocates recommends five components for an optimal GDL law based
on the National Transportation Safety Board (NTSB) recommendations,
extensive research conducted on the effectiveness of strong GDL laws,
and policies supported by the American Academy of Pediatrics and other
public health and safety organizations:
minimum age limit of 16 years to obtain a learners permit,
and age 18 for lifting all restrictions for newly licensed
drivers;
minimum six-month holding period for a learners permit and
intermediate stage;
ban on non-emergency use of cell phone and other
communication devices during learners permit and intermediate
stage;
restriction on unsupervised nighttime driving in learners
and intermediate stage;
restriction on more than one non-familial teenage passenger
in intermediate stage.
Despite the proven safety effectiveness of GDL laws that meet these
optimal features, there remains a patchwork quilt of teen driving laws
in states across the Nation. Some states have weak laws while others
have stronger laws creating another example of ``blood borders.'' As a
result, millions of novice teen drivers lack some of the most basic
protections that could prevent teen crashes and save lives. It is time
for Congress to act in this public health crisis to encourage state
adoption of comprehensive GDL laws.
Legislation that would accomplish this has already been introduced
in Congress, S. 3269, the Safe Teen And Novice Driver Uniform
Protection (STANDUP Act) sponsored by Senators Gillibrand (D-NY), Dodd
(D-CT), Klobuchar (D-MN), Carper (D-DE), Cardin (D-MD), Lieberman (D-
CT) and Whitehouse (D-RI). The House has introduced a companion
measure, H.R. 1895, with twenty-one co-sponsors including
Representatives Bishop (D-NY), Castle (R-DE) and Van Hollen (D-MD). The
legislation requires states to adopt the optimal GDL features mentioned
above. The bill allows the Secretary of Transportation to consider
additional requirements, such as minimum hours of behind-the-wheel
driving time and driver training courses, before full licensure is
granted. The bill also provides for $25 million per year for 3 years as
incentive grants to entice states to adopt these laws. Furthermore, the
bill includes a potential sanction on Federal-aid highway funds to
ensure that when all is said and done, uniform state GDL laws across
the Nation will save the lives of our most precious possession--our
children. This legislation is supported by the Saferoads4teens
Coalition \48\ whose members include more than 150 national, state and
local groups representing teens and parents, consumer, health, and
safety interests, emergency doctors and nurses, the American Academy of
Pediatrics, Mothers Against Drunk Driving (MADD), firefighters, law
enforcement, insurance companies and the auto industry. This
legislation, when passed, has the potential to significantly reduce
teen crashes, deaths and injuries similar to the safety gains made in
saving teen lives with enactment of the National Minimum Drinking Age.
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\48\ www.saferoads4teens.org.
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Buckling Up--Primary Enforcement Seat Belt Laws Save Lives
Seat belts remain the most effective occupant protection safety
device in motor vehicles. Research shows that when lap/shoulder seat
belts are used they reduce the risk of fatal injury by 45 percent, and
the risk of moderate-to-critical injuries by 50 percent to front-seat
occupants in passenger vehicles. Additionally, seat belts reduce the
risk of fatal injury by 60 percent, and the risk of moderate-to-
critical injuries by 65 percent, for occupants of light trucks.\49\
Yet, in 2008, more than half of the occupants killed in fatal crashes,
55 percent, were unrestrained in crashes where restraint use was
known.\50\
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\49\ Occupant Protection, Traffic Safety Facts 2008, at 3, DOT HS
811 160, NHTSA (2009).
\50\ Id. at 2.
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Seat belts save lives by keeping occupants in the vehicle, thus
preventing complete ejection in a crash. Ejection from the vehicle is
one of the most serious and deadly events that can occur in a crash. In
fatal crashes in 2008, 77 percent of occupants who were totally ejected
from the vehicle were killed.\51\ Nevertheless, the national observed
seat belt use rate was 84 percent in 2009,\52\ and only 31 states and
the District of Columbia have enacted primary enforcement seat belt use
laws, while 19 states have not.
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\51\ Id. at 3.
\52\ Seat Belt Use in 2009--Use Rates in the States and
Territories, Traffic Safety Facts, Crash Stats, DOT HS 811 324, NHTSA
(May 2010).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
In states with primary enforcement laws, belt use is higher. A
study conducted by the Insurance Institute for Highway Safety (IIHS)
found that when states strengthen their laws from secondary enforcement
to primary, driver death rates decline by an estimated 7 percent.\53\
Use levels are typically 10 to 15 percentage points higher in these
states than in states without primary enforcement laws.\54\ Needless
deaths and injuries that result from a lack of seat belt use cost
society an estimated $26 billion annually in medical care, lost
productivity, and other injury-related costs.\55\
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\53\ Farmer, C. M. & Williams, A. F., Effect on Fatality Risk of
Changing from Secondary to Primary Seat Belt Enforcement, Insurance
Institute for Highway Safety (Dec. 2004), available at http://
www.gahighwaysafety.org/pdf/iihsseatbeltsof.pdf.
\54\ Strengthening Safety Belt Use Laws--Increase Belt Use,
Decrease Crash Fatalities and Injuries, Traffic Safety Facts, Laws,
NHTSA (Apr. 2004).
\55\ The Economic Impact of Motor Vehicle Crashes, 2000, at 55.
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NHTSA estimates that in 2008, seat belts saved 13,250 lives among
passenger vehicle occupants over age 4.\56\ If all passenger occupants
over age 4 had worn seat belts in 2008 an estimated 17,402 lives, or an
additional 4,152 lives, could have been saved.\57\ NHTSA calculates
that between 1975 and 2008 seat belts saved an estimated total of more
than 255,000 lives.\58\ Had seat belt use rates been 100 percent over
the years, more than 350,000 additional lives would have been
saved.\59\
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\56\ Occupant Protection, Traffic Safety Facts 2008, at 3.
\57\ Id.
\58\ Id. at 4.
\59\ Traffic Safety Facts 2008, Lives Saved by Restraint Use and
21-Year-Old Minimum Legal Drinking Age Laws Chart, Inside Back Cover,
DOT HS 811 170, NHTSA (2009).
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Congress has already tried to persuade states to adopt primary seat
belt enforcement laws with a generous grant program. As mentioned, the
2005 SAFETEA-LU Act provided $500 million in incentive grant funding to
entice states to pass primary enforcement seat belt laws. In the 5
years that incentive program was in effect, only ten (10) states
enacted primary seat belt enforcement laws and 19 states still have
not.
Incentive grants must be coupled with potential sanctions in order
to boost the national seat belt use rate and to save thousands more
lives each year. That is why Advocates supports the measure adopted by
the House Transportation and Infrastructure Committee to amend existing
law to include a potential sanction for states that do not adopt a
primary enforcement seat belt use law by September 30, 2012.\60\
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\60\ Surface Transportation Authorization Act of 2009, 1516,
Transportation and Infrastructure Committee, markup draft [Committee
Print] (June, 2009).
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Convicted Drunk Drivers--Alcohol Ignition Interlock Devices Save Lives
Drinking and driving continues to be a national scourge on our
Nation's highways. While a number of measures have successfully reduced
the historically high levels of carnage caused by drunk driving back in
the 1980s, nearly a third of traffic deaths occur in alcohol involved
crashes. Although the total number of alcohol-related crash deaths
declined in 2009 to 10,839 people, 7 percent less than in 2008, alcohol
involved crashes still accounted for 32 percent of all traffic
fatalities.\61\ Except for the recent 2008-2009 dip in fatalities
during the recession, the annual level of alcohol-involved crash
fatalities has not declined significantly in the past 10 years.\62\
Previous decreases in fatalities were in large measure due to a wave of
enactment of state anti-impaired driving laws, serious enforcement of
those laws and educational efforts by MADD) and others to raise
awareness of the problem. In order to continue to reduce the number of
needless alcohol related crash deaths suffered on our highways each
year, and to maintain fatality reductions resulting from the
recessionary downturn, more must be done to keep impaired drivers off
our streets and roads.
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\61\ Highlights of 2009 Motor Vehicle Crashes, Traffic Safety Facts
Research Note, Table 3, p. 2, DOT HS 811 363, NHTSA (Aug. 2010).
\62\ Alcohol-Impaired Driving, Traffic Safety Facts 2008, at 1, DOT
HS 811 155, NHTSA (2009).
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One such measure is the required installation of technology to
prevent drunk driving recidivism. An effort led by MADD and supported
by Advocates is already underway to urge states to adopt a mandatory
interlock system to prevent persons convicted of impaired driving,
including first time offenders who have been convicted of an impaired
driving offense, from starting their vehicle when they are again
impaired. A breath alcohol ignition interlock device (IID) is similar
to a breathalyzer used by police to determine if a driver has an
illegally high BAC level. The IID is linked to a vehicle's ignition
system and requires a driver who has previously been convicted of an
impaired driving offense to breathe into the device. If the analyzed
result exceeds the programmed BAC limit for the driver, the vehicle
will not start. But if the alcohol in the driver's system registers
below the prohibited limit, the driver can start the vehicle and begin
driving.
Today, modern technology is used not just to provide drivers with
vital safety information, but also to allow Internet access and
entertainment and business communications that can interfere with the
driving task. There is no reason that technology should not be used to
prevent impaired drivers who have prior convictions for that offense
from operating motor vehicles.
Most Americans support this initiative as well. In 2009, a survey
conducted by the IIHS found that 84 percent of respondents said that
ignition interlock devices for convicted drunk drivers is a good
idea.\63\
---------------------------------------------------------------------------
\63\ 2010 Roadmap Report at 26.
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However, only 13 states have adopted the use of IID technology to
prevent first time offenders convicted of impaired driving from
repeating the same dangerous behavior at the expense of others. Thirty-
seven states and the District of Columbia have yet to adopt this life-
saving law.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Lautenberg (D-NJ), has introduced the Drunk Driving Repeat
Offender Prevention Act of 2009, S. 2920, that advances the cause of
safety by requiring all states to adopt IID technology to prevent
traffic crashes. The bill includes the tried and true approach of
invoking potential sanctions in order to prompt states to enact laws
that require the use of IIDs following a conviction for impaired
driving. Advocates strongly supports S. 2920 because taking the keys
out of the hands of drunk drivers is the most effective action we can
take to stop convicted drunk drivers from becoming repeat offenders.
And, as previously mentioned, the House Transportation and
Infrastructure Committee has adopted this approach in its pending
reauthorization bill.\64\ Every family deserves to be protected from
drunk drivers, and every state should have this law.
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\64\ Surface Transportation Authorization Act of 2009, 1517, see
note 25 supra.
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Distracted Driving--Curb the Use of Electronic Devices While Driving to
Save Lives
Although various kinds of distractions have been a part of driving
since the automobile was invented, the emergence of personal electronic
communications devices that can readily be used while operating a
vehicle has presented a whole new category of driver distraction and
danger than ever before. The growing use of built-in and after-market
or nomadic devices by drivers began with cell phone use but has
proliferated through a myriad of personal electronics that allow
drivers to access the Internet, perform office work and to send and
receive text messages while driving. As a result, in 2009, there were
an estimated 5,474 fatalities and 448,000 injuries in crashes where
driver distraction was a factor.\65\
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\65\ An Examination of Driver Distraction as Recorded in NHTSA Data
bases, Traffic Safety Facts Research Note, at 1, DOT HS 811 216, NHTSA
(Sept. 2009).
---------------------------------------------------------------------------
Text messaging while driving poses the most extreme and evident
crash risk danger. Diversion of attention from the driving task to
input or read a text message clearly interferes with drivers' ability
to safely operate a motor vehicle. A 2009 study found that text
messaging while driving increases the risk of a safety-critical event
by more than 23 times compared to drivers who are focused on the
driving task.\66\
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\66\ Olson, et al., Driver Distraction in Commercial Motor Vehicle
Operations, Virginia Tech Transportation Institute (2009).
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A mounting number of research studies and data show that the use of
a mobile telephone while driving, whether hand-held or hands-free, is
equivalent to driving under the influence of alcohol at the threshold
of the legal limit of .08 percent blood alcohol concentration (BAC).
Hand-held mobile phone use and dialing while driving require drivers to
divert attention from the road and from the driving task, yet hands-
free phone use has also been shown to involve cognitive distraction
that is no less dangerous in terms of diverting attention from the
driving task and the potential risk of crash involvement.
To date, 30 states and the District of Columbia have enacted all-
driver text messaging bans, although 4 of these states have secondary
enforcement, but 20 states have no such law.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Two significant pieces of legislation have been introduced in the
Senate to prohibit drivers from sending, receiving and accessing text
messages while driving passenger vehicles: The Distracted Driving
Prevention Act of 2009, S. 1938, introduced by Chairman Rockefeller (D-
WV) and the Avoiding Life-Endangering and Reckless Texting by Drivers,
or the ALERT Drivers Act, of 2009, S. 1536, introduced by Sen. Schumer
(D-NY). Each bill is a strong initiative intended to address distracted
driving, and Advocates supports the goals of both bills. We applaud
Chairman Rockefeller and Ranking Member Hutchison and the other members
of this committee for moving this legislation to the Senate floor on
June 9, 2010. Advocates is convinced that a combination of incentive
grants and sanctions is the most effective strategy to ensure that text
messaging prohibitions are expeditiously adopted in all states.
The Administration has taken some good first steps to reverse the
rising tide of crashes that involve distracted driving as a factor.
Last week the Secretary of Transportation convened the second national
conference on distracted driving,\67\ in an effort to keep the focus on
this safety problem at the national level. Just after the first such
conference \68\ President Obama issued a proclamation banning text
messaging by Federal employees,\69\ and the Department of
Transportation (DOT) took measures to curb distracted driving in
commercial vehicles.\70\ However, the problem of distracted driving in
commercial vehicles is not limited only to text messaging. For that
reason, Advocates filed a petition for rulemaking with the Federal
Motor Carrier Safety Administration (FMCSA), which regulates commercial
vehicle operations, seeking a review of all types of electronic devices
used in commercial vehicles, not just those that support text
messaging.\71\
---------------------------------------------------------------------------
\67\ Distracted Driving Summit, September 21, 2010 (Washington,
D.C.), information last accessed on Sept. 20, 2010 and available at
http://www.distraction.gov/2010summit/.
\68\ Distracted Driving Summit, September 30-October 1, 2009
(Washington, D.C.)
\69\ Federal Leadership on Reducing Text Messaging While Driving,
Executive Order No. 13513 (Oct. 1, 2009), 74 FR 51225 (Oct. 6, 2009).
\70\ See Limiting the Use of Wireless Communications Devices, Final
Rule, 75 FR 59118 (Sept. 27, 2010); Regulatory Guidance Concerning the
Applicability of the Federal Motor Carrier Safety Regulations to
Texting by Commercial Motor Vehicle Drivers, Notice of Regulatory
Guidance, 75 FR 4305 (Jan. 27, 2010).
\71\ Distracted Driving Petition for Rulemaking: Requesting
Issuance of a Rule to Consider Prohibiting or Restricting the Use of
Electronic Devices During the Operation of Commercial Motor Vehicles,
dated September 24, 2009, filed by Advocates for Highway and Auto
Safety with the FMCSA Administrator.
---------------------------------------------------------------------------
Motorcycle Deaths--Rose for 11 Straight Years and Helmet Laws are Under
Attack
NHTSA estimates that 80 percent of motorcycle crashes injure or
kill a rider.\72\ 2008 was the 11th straight year in which motorcycle
crash fatalities increased, rising to 5,290 motorcyclists killed and
96,000 were injured.\73\ This is more than double the motorcycle
fatalities in 1998 and a level not seen since 1981.\74\ While
motorcycle fatalities finally decreased to 4,462 in 2009, that figure
still represents fatality numbers that are more than double what the
figure was in 1997, the last year in which motorcycle fatalities
experienced a decline.\75\ While fatality and injury rates for other
types of vehicles have dropped over the years, the fatality and injury
rates for motorcycles have been steadily rising.\76\
---------------------------------------------------------------------------
\72\ Motorcycle Safety, National Highway and Traffic Safety
Administration, DOT HS 807 709 (Oct. 1999), available at http://
www.nhtsa.dot.gov/people/injury/pedbimot/motorcycle/moto
safety.html.
\73\ Motorcycles, Traffic Safety Facts 2008, DOT HS 811 159, at 1,
NHTSA (2009).
\74\ A Highway Safety Countermeasures Guide for State Highway
Safety Offices, DOT HS 810 891, p. 5-4, NHTSA (3d ed., Jan. 2008)
(NHTSA Safety Countermeasures Guide).
\75\ Traffic Safety Facts 2008, Table 10, p. 28.
\76\ Motorcycles, Traffic Safety Facts 2008, at 1.
---------------------------------------------------------------------------
At present, motorcycles make up less than 3 percent of all
registered vehicles and only 0.4 percent of all vehicle miles traveled,
but motorcyclists accounted for 13 percent of total traffic fatalities
and 19 percent of all occupant fatalities.\77\ NHTSA estimates that
helmets saved the lives of 1,829 motorcyclists in 2008 and that if all
motorcyclists had worn helmets, an additional 823 lives could have been
saved.\78\ NHTSA estimates that 148,000 motorcyclists have been killed
in traffic crashes since 1966.\79\
---------------------------------------------------------------------------
\77\ Highlights of 2009 Motor Vehicle Crashes, pp. 1 and 3.
\78\ Motorcycles, Traffic Safety Facts 2008, at 6.
\79\ Id. at 3.
---------------------------------------------------------------------------
In the past, annual motorcycle rider deaths were much lower in part
because most states had all-rider motorcycle helmet laws. Congress used
the power of the sanction to require states to enact helmet use
laws.\80\ When the sanction was repealed by Congress, the states
followed suit with more than half the states repealing their helmet
laws.\81\
---------------------------------------------------------------------------
\80\ The National Motor Vehicle and Traffic Safety Act of 1966,
Pub. L. 89-563 (Sept. 9, 1966).
\81\ See e.g., Evaluation of the Reinstatement of the Helmet Law in
Louisiana, DOT HS 810 956, NHTSA (May 2008), available at http://
www.nhtsa.gov/portal/nhtsa_static_file_
downloader.jsp?file=/staticfiles/DOT/NHTSA/Traffic%20Injury%20Control/
Articles/Associated
%20Files/810956.pdf.
---------------------------------------------------------------------------
Some motorcycle enthusiasts who oppose motorcycle helmet use laws
have asserted that training and education alone are the way to improve
motorcycle safety. However, in SAFETEA-LU, Congress included a number
of measures aimed at promoting motorcycle training and education. These
programs have not proven effective in stemming the increasing tide of
motorcycle fatalities. In 2008, motorcycle crash deaths were still on
the rise to an all time high of 5,290 deaths \82\ despite the SAFETEA-
LU funded motorcycle education grant program. The 2009 reduction in
motorcycle deaths may well prove to be only a temporary respite due to
reduced vehicle miles of travel as a result of the economic downturn.
---------------------------------------------------------------------------
\82\ Traffic Safety Facts 2008, Table 10, p. 28.
---------------------------------------------------------------------------
Today, only 20 states and the District of Columbia require helmet
use by all motorcycle riders. The map below indicates the status of the
law in each state. This year, 9 of those state laws were under attack
by repeal attempts. In 2007, the NTSB recommended that all states
without an all-rider helmet law should adopt one.\83\ Research
conclusively and convincingly shows that all-rider helmet laws save
lives and reduce medical costs. While helmets will not prevent crashes
from occurring, they have a significant and positive effect on
preventing head and brain injuries during crashes. These are the most
life-threatening and long-term injuries as well as the most costly.
---------------------------------------------------------------------------
\83\ NTSB Recommendations H-07-38, available at http://
www.ntsb.gov/Recs/letters/2007/H07_38.pdf, and H-07-39, available at
http://www.ntsb.gov/Recs/letters/2007/H07_39.pdf.
---------------------------------------------------------------------------
In 1992, California's all-rider helmet law took effect resulting in
a 40 percent drop in its Medicaid costs and total hospital charges for
medical treatment of motorcycle riders.\84\
---------------------------------------------------------------------------
\84\ Id.
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Conclusion
The quality of life for all Americans depends on a safe, reliable,
economical and environmentally sound surface transportation system.
Transportation solutions to promote mobility and the economy must
involve not only financial investments, but investments in safety as
well. Highway crashes cost our Nation more than $230 billion annually.
This is money that could be better spent on addressing surface
transportation needs. Making necessary changes to the performance and
effectiveness of the highway safety and incentive grant programs,
including requiring the adoption of proven, practical safety laws and
policies will dramatically improve traffic safety, reduce deaths and
injuries and lower societal costs that accompany motor vehicle crashes.
The significant reduction in highway fatalities that has occurred
over the last 2 years affords an opportunity to continue the downward
trend and make substantial and lasting reductions in annual fatalities.
There are no acceptable excuses for delaying any longer the adoption of
lifesaving laws that can help secure these lower fatality levels in the
future. Over the course of the next five-year authorization bill we can
save thousands of lives each year if we act wisely and act now. If the
opportunity slips away without action we could suffer more than 200,000
fatalities and another 10 million injuries in that 5-year timeframe.
Thank you for the opportunity to testify before you today and I am
pleased to answer your questions.
Senator Pryor. Thank you.
Mr. Strassburger.
STATEMENT OF ROBERT STRASSBURGER, VICE PRESIDENT, VEHICLE
SAFETY AND HARMONIZATION, ALLIANCE OF AUTOMOBILE MANUFACTURERS
Mr. Strassburger. Thank you, Mr. Chairman.
As we've already heard this morning, the Nation recorded
its lowest traffic fatality rate last year. And the decline
continues in 2010. Some attribute this to the economic
downturn, but the fact is, it began well before the downturn
started, and it continues even as vehicle miles traveled
rebounds.
We are seeing a sustained declined in fatalities because a
decade ago, government, industry, and other stakeholders
stepped up efforts to reduce traffic fatalities and injuries.
And we are now seeing the payoff.
For our part, automakers are waging a safety technology
revolution--conceiving, developing and implementing new safety
systems with real-world benefits. Still, 33,808 people lost
their lives last year on our roads, and about 2.2 million were
injured. Tragically, 53 percent of vehicle occupants killed
were not restrained by safety belts. Moreover, 32 percent of
those killed died because of a drunk driver.
If we are to fully realize the benefits of vehicle safety
technologies, we must address drivers' most dangerous
behaviors. As this committee moves forward with reauthorization
of safety grant programs, we urge you to focus on those that
provide the greatest safety benefits.
The Alliance recommends the following:
Primary enforcement safety belt-use laws result in higher
usage rates, and that saves lives. The time has come to treat
safety belt use with the same seriousness as drunk driving, and
sanction States that have failed to adopt a primary law, in the
same way the Congress required States to adopt .08 laws. We
further urge that funding continue for ``Click It or Ticket,''
NHTSA's high-visibility enforcement campaign for safety belts.
Drunk driving remains one of our most pervasive problems.
While we've made progress over the last three decades, that
progress pales in comparison to the size of the problem we
face. That is why the Alliance is working with MADD to
eliminate drunk driving permanently. We support MADD's campaign
to eliminate drunk driving, which seeks to mandate the use of a
Breathalyzer by anyone convicted of drunk driving, and requests
additional funding for research of in-vehicle technologies that
could prevent drunk drivers from driving.
We urge the Senate to include the provisions of the DDROP
Act and the ROADS SAFE Act in its reauthorization bill. In
addition, we urge that funding for the high-visibility
enforcement campaign, ``Over the Limit, Under Arrest,''
continue.
Alliance members take concerns about driver distraction
very seriously, and we applaud this committee's efforts to
raise awareness about the dangers of distracted driving.
Digital technology has created a connected culture that forever
has changed our society. Automakers are working to manage
technology to help drivers keep their eyes on the road and
hands on the wheel. But, as we have learned, to be fully
effective in addressing a safety problem, we need to supplement
automakers' actions with consumer education and strong laws,
visibly enforced.
The Alliance supports laws banning hand-held texting and
hand-held calling while driving, to accelerate the transition
to more advanced, safer ways to communicate. We urge you to
include the provisions of the Distracted Driving Prevention Act
in the reauthorization bill, and funding for research to better
understand driver behaviors, an evaluation of various means to
addressing distracted driving.
Obtaining a drivers license is a privilege, and special
care should be taken in granting that privilege to new drivers.
A recent Insurance Institute for Highway Safety study found
that teen graduated licensing laws rated ``good'' by the
Institute are associated with 30-percent lower fatal crash rate
among 15- to 17-year-olds, compared with laws that are rated
``poor.'' We urge you to include the provisions of the STANDUP
Act in the reauthorization bill.
NHTSA and safety researchers need robust data systems to
assess current and future safety needs of adults and children.
The National Automobile Sampling System, NASS, should be funded
at a level sufficient to attain its intended design size. The
Alliance recommends that $40 million annually is needed.
In conclusion, reducing injuries and fatalities from auto
crashes is a significant public health challenge. We appreciate
the leadership shown by the members of this committee to
address these issues, and we share your goals. We look forward
to continuing to work with you to make our roads the safest in
the world.
Mr. Chairman, members of the Subcommittee, I'd be happy to
answer any questions you may have.
[The prepared statement of Mr. Strassburger follows:]
Prepared Statement of Robert Strassburger, Vice President, Vehicle
Safety and Harmonization, Alliance of Automobile Manufacturers
Thank you, Mr. Chairman and Subcommittee members. My name is Robert
Strassburger and I am Vice President of Vehicle Safety and
Harmonization at the Alliance of Automobile Manufacturers (Alliance).
The Alliance is a trade association of twelve car and light truck
manufacturers including BMW Group, Chrysler LLC, Ford Motor Company,
General Motors, Jaguar Land Rover, Mazda, Mercedes-Benz, Mitsubishi
Motors, Porsche, Toyota, Volkswagen Group of America and Volvo. Within
Alliance membership, safety is a top priority. We operate in a high-
tech industry that uses cutting-edge safety technology to put people
first.
The latest government facts and figures show that U.S. motorists
have never been safer. Just this month, the National Highway Traffic
Safety Administration (NHTSA) announced that U.S. traffic fatalities
dropped to a record low last year: a 9.7 percent decline from the year
before. In 2009, there were 33,808 fatalities in motor vehicle traffic
crashes, the lowest fatality number since 1950. 2009 also brought the
Nation its lowest fatality rate ever: 1.13 fatalities per 100 million
vehicle miles traveled (VMT).
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These declines are even more significant in the face of sharp
increases in other key factors--more drivers driving greater distances.
In the past 60 years, VMT has more than quadrupled and the number of
licensed drivers has more than doubled. Vehicle safety technologies
combined with consumer education and tough laws combating the most
dangerous driver behaviors have provided us sharp declines in critical
fatality and injury statistics, all to the benefit of the traveling
public.
Nevertheless, we want to continue to reduce the risk of crashes and
fatalities even further. Advancing real world motor vehicle safety
remains a public health challenge, and automakers are doing our part.
Even during the recent economic downturn, the auto industry spent more
than $86 billion globally in R&D in 2008. Most of the safety features
on motor vehicles in the U.S.--antilock brakes, stability control, side
airbags for head and chest protection, side curtains, pre-crash
occupant positioning, lane departure warning, collision avoidance and
more, were developed and implemented voluntarily by manufacturers, in
advance of any regulatory mandates. The industry is moving forward,
engaging in high-tech research and implementation of new safety
technologies including autonomous braking systems, vehicle safety
communications systems for crash avoidance and much more. Our
commitment is to continuously improve motor vehicle safety.
However, we also recognize that vehicle improvements alone cannot
get us to where we need to be as a nation. Even last year's historic
low fatality figure represents a public health issue that requires us
to identify the root causes and focus our collective efforts on the
factors that will provide the biggest real world safety benefits. To
that end, the single largest cause of fatal crashes is still alcohol-
impaired driving. In fact, even though 2009's actual number of alcohol-
related fatalities fell slightly, the percentage of fatalities caused
by alcohol-impairment actually increased. And while safety belt use
levels are at all-time highs, more than half of all people killed in
traffic crashes last year were not wearing safety belts.
These are just two examples of why the Alliance aggressively
supports tough laws, education programs and high-visibility enforcement
to address drivers' most dangerous behaviors. As this Committee
prepares for the next authorization of highway safety grant programs,
the Alliance recommends focusing precious resources on programs that
will provide the most safety benefits: increasing safety belt usage;
reducing drunk driving and distracted driving; reducing crashes caused
by novice drivers; and ensuring NHTSA's traffic safety database
continues to be the world's best.
Increasing Safety Belt Usage
No industry sector over the past 25 years has devoted more
resources to increasing safety belt usage: the automobile industry has
spent $33 million on these efforts between 1996 and 2007 alone. Safety
belts are the most effective means immediately available to motorists
to keep them safe in crashes. The Alliance is proud of the work we have
done with our traffic safety partners to successfully pass primary
safety belt enforcement laws in more than 30 states. As soon as
possible, that needs to be 50 states.
SAFETEA-LU included the largest incentive grant program in history
as a way to encourage states to pass these proven and effective belt
laws. Those incentives helped influence elected officials in 12 states
to enact primary enforcement laws in recent years. Unfortunately,
adoption of these laws also failed by narrow margins in many other
states.
NHTSA's figures show that the total passenger vehicle occupant
fatality rate per 100 million VMT is 9 percent higher in non-primary
enforcement states than it is for states that have primary enforcement
legislation in place. According to the agency, an additional 4,100
lives would have been saved in 2008 (the latest year for which data is
available) if all unrestrained passenger vehicle occupants five and
older involved in fatal crashes had worn their safety belts.
It has taken a quarter century to get just over half of the states
to adopt primary enforcement laws. The Alliance now urges Congress to
take the next step and include provisions for withholding a percentage
of Highway Trust Fund monies from states that have failed to adopt
primary enforcement safety belt laws. And, furthermore, we urge
Congress to announce its intention to include such a provision as soon
as possible, as this will induce state legislatures to act now.
Sanctions have worked effectively to accelerate the process of
passing laws and creating uniform safety policy in all 50 states and in
the District of Columbia. Congress employed this tactic to encourage
states to adopt a minimum legal drinking age of 21 (1984), zero alcohol
tolerance laws for youth under 21 (1995), and 0.08 percent per se blood
alcohol content (BAC) laws (2000). It is time to take a similar step
with primary enforcement laws.
Reducing Drunk Driving
Another significant traffic safety concern continues to be impaired
driving, which accounts for more than 32 percent of all motor vehicle
fatalities. We have made substantial progress in reducing impaired
driving in the last two decades, but we must do more.
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In November 2006, the Alliance, among others, joined with the U.S.
Department of Transportation, the Insurance Institute for Highway
Safety (IIHS), the Governors Highway Safety Association, and the
International Association of Chiefs of Police, to support MADD's
Campaign to Eliminate Drunk Driving. The Campaign is pursuing the
adoption of state laws mandating the installation of alcohol ignition
interlocks (breathalyzers) on vehicles driven by convicted drunk
drivers. New Mexico has become the first state to adopt this mandate,
and has benefited by seeing a 30 percent drop in alcohol-involved
crashes. Injuries and fatalities are down too, by 32 percent and 22
percent respectively. The bipartisan reauthorization bill introduced in
the House by Transportation Committee Chairman Oberstar and Ranking
Member Mica included a provision requiring states to adopt mandatory
ignition interlocks for convicted offenders as a condition for
receiving Section 410 grants. Last December, Senators Lautenberg and
Udall introduced similar legislation, the Drunk Driving Repeat Offender
Prevention Act (S. 2920). We urge the Senate to include similar
provisions in its reauthorization bill.
In addition, in 2008 the Alliance, working through the Automotive
Coalition for Traffic Safety (ACTS), joined NHTSA in a five-year, $10
million cooperative agreement to research in-vehicle alcohol detection
technologies that could prevent drivers from even starting a vehicle if
their blood alcohol content is at or above 0.08, which is the legal
limit. Such technologies hold tremendous promise for keeping alcohol-
impaired drivers off the road and reducing their impact on innocent
motorists and passengers who lose their lives or are injured in drunk
driving crashes. An I IHS analysis reveals that if driver blood alcohol
concentrations can be limited to less than 0.08, approximately 9,000
lives might be saved annually. We are pleased to support Senator
Udall's legislation, S. 3039, which would aid the funding of this
crucial research.
Reducing Distracted Driving
Alliance members take concerns about driver distraction very
seriously, and we applaud this Committee's efforts to raise the
awareness about the dangers of distracted driving. While technology has
made our world more connected than ever, the ease of connectivity has
presented us all with new challenges. Alliance members prioritize
safety in vehicle design, including cutting-edge in-vehicle information
systems that allow drivers to keep their hands on the wheel and eyes on
the road.
This is why we recommend the Congress adopt the proven three-prong
strategy that has worked so effectively in reducing drunk driving and
increasing safety belt usage: (1) appropriate laws backed up by high
visibility enforcement; (2) increased consumer education; and (3)
increased research dollars to further evaluate driver behavior and
safety countermeasures.
The Alliance supports state laws banning hand-held texting and
hand-held calling while driving, to accelerate the transition to more
advanced, safer ways to communicate. The Alliance also supports the use
of texting bans like those proposed by Chairman Rockefeller in S. 1938
to combat unsafe behavior, and is working with Congress and other
stakeholders to ensure that the legislation passed allows for
innovative technologies to be included on the cars of the future to
provide consumers with important safety benefits.
We need consumer education so that drivers know that even with the
cutting-edge technology found in today's cars--driving distractions
remain a risk. Not just hand-held texting and hand-held calling, but
eating, drinking, searching for a CD--anything that prolongs a driver's
``eyes off road'' time presents a risk. This is why the Alliance is
proud to partner with leading medical associations in launching a
broad, national, multimedia campaign to raise awareness. The OMG
Campaign launched this month is a national, multi-media campaign
designed to help raise awareness of the dangers of distracted driving.
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And third on the distracted driving front, the Alliance recognizes
the need to fund continued research so that we can further understand
driver behaviors and evaluate alternative means of addressing the
concern. This three-pronged approach has worked for 0.08 BAC limits and
``Click It or Ticket'' safety belt usage campaigns. It will work here
as well.
With regard to increasing safety belt usage and preventing drunk
and distracted driving, we also urge the Committee to continue its
leadership by providing Federal funding for paid advertising to support
high visibility enforcement campaigns, like ``Click It or Ticket'' and
``Over the Limit, Under Arrest.'' This advertising is essential to the
continuing success of these activities.
Reducing Crashes Caused by Novice Drivers
Alliance members believe that obtaining a driver's license is a
privilege and, as such, states should take special care in granting
that privilege to new drivers. A recent IIHS study found that teen
licensing laws rated ``good'' are associated with a 30 percent lower
fatal crash rate among 15-17 year-olds, compared with licensing laws
that are rated ``poor.'' Examples of helpful teen licensing laws
include: requiring all occupants to wear safety belts when a teen is
behind the wheel; restricting the number of passengers for teenage
drivers; prohibiting impaired driving at any level; and prohibiting all
portable electronic communication and entertainment devices.
The Alliance supports inclusion of language similar to S. 3269, the
STANDUP ACT, co-sponsored by Senator Klobuchar. The STANDUP ACT would
establish minimum Federal requirements for state graduated driver
licensing (GDL) laws and provide incentive grants for states to adopt
GDL laws that meet those minimum requirements within 3 years. After 3
years, those states that have not adopted these GDL laws would be
subject to a sanction of their highway funding.
Ensuring NHTSA's Traffic Safety Database Continues to be the World's
Best
Lastly, as we work to further improve real world safety through
additional advancements in vehicle design, NHTSA and safety researchers
must have robust databases upon which to assess current and future
safety needs of adults and children. The National Automotive Sampling
System (NASS) is an essential nationwide data collection resource that
provides the department and safety researchers with detailed motor
vehicle crash and injury information. t is operated by the National
Center for Statistics and Analysis of NHTSA. NASS--which began in
1979--is a primary resource for identifying traffic safety issues,
establishing priorities, assisting in the design of future safety
countermeasures and for evaluating existing countermeasures.
The budget for NASS has not kept pace with either the department's
informational needs or inflation. Moreover, these needs are growing as
Alliance members reinvent the automobile in response to societal
demands for ever safer and cleaner vehicles. The capability of NASS has
been dramatically reduced. Currently, NASS collects in-depth data on
approximately 4,500 crashes--less than a third of the intended design
size of 15,000 to 20,000 crash cases annually. Further, NASS lacks
adequate data on children involved in motor vehicle crashes.
NASS should be funded at a level sufficient to attain its intended
design size to ensure critical ``real-world'' data is collected at a
sufficient number of sites nationwide to provide the statistically
valid, nationally representative sample originally intended. The
Alliance also supports enhancing NASS's capacity to collect sufficient
data concerning our most precious cargo--our children. An additionally
funded child occupant protection component to NASS is currently in
pilot development at NHTSA through industry grants to The Children's
Hospital of Philadelphia. These goals can be accomplished with an
incremental $40 million annual investment in NASS, which equates to
$1.73 cents for every $100 of economic loss from traffic injuries and
fatalities.
Thank you for your consideration of these recommendations, and we
look forward to working with this Committee as you move forward in the
process.
Senator Pryor. Thank you.
Ms. Dean-Mooney?
STATEMENT OF LAURA DEAN-MOONEY, NATIONAL
PRESIDENT, MOTHERS AGAINST DRUNK DRIVING (MADD)
Ms. Dean-Mooney. Thank you, Chairman Pryor.
MADD last week celebrated its 30th anniversary with a rally
at the Capitol, with hundreds of our volunteers focused on one
thing: the elimination of drunk driving.
As you both know, I joined MADD after my husband, Mike
Dean, was killed in Texas by a drunk driver going--leaving me
to raise our 8-month-old daughter alone.
Mike left a business meeting on November 21, 1991, in
Oklahoma, and drove to the Dallas/Fort Worth area to visit his
family. At 7:15 p.m. on that Thursday night, a drunk driver met
Mike's car head-on, killing him instantly, making me a widow
and a single mom. The offender, who also died at the scene, had
a blood alcohol concentration of .34 and an empty bottle of
whiskey in his car.
For more than 17 years, I have volunteered at--for MADD's
mission, at the local, State, and national level, and I will
continue this work until no one has to face the loss that I
faced due to a drunk driver. Last year, 10,839 real people were
killed in alcohol-related crashes; almost one-third of all
fatalities.
Additional NHTSA statistics paint a startling portrait of
what's happening on our roads. One Arkansas resident holds the
record for most DUIs, with 44 convictions. In my home State of
Texas, over 120,000 motorists are driving with three or more
DUI convictions, and over 18,000 are driving with five or more
convictions.
But, fortunately, MADD does have a plan. MADD's campaign to
eliminate drunk driving, which, first, supports more resources
for high visibility law enforcement; second, requires convicted
drunk drivers to install an ignition interlock device; and,
lastly, turns cars into the cure, through the development of
advanced in-vehicle technology. As you all know, an interlock
is a breath-test device that is linked to a vehicle's ignition
system. It allows the DUI offender to continue to drive
wherever they need to go, they just can't drive drunk.
The research on interlocks is crystal clear and
irrefutable. Since New Mexico and Arizona implemented all-
offender interlock laws, DUI fatalities in those States have
been reduced by 30 and 33 percent, respectively. Every American
should be protected by an all-offender interlock law.
MADD is now facing roadblocks from the alcohol industry and
DUI defense attorneys as we try to pass this law in State
legislatures. We strongly urge the Committee to work with the
Senate Environment and Public Works Committee to include an
all-offender interlock Federal standard in the reauthorization
bill. This lifesaving measure is sound policy.
While interlocks are currently the most proven technology
available to stop drunk driving, a program is underway to
provide an advanced in-vehicle option for consumers. This
technology could potentially eliminate drunk driving. The DADSS
system is a result of a research agreement between NHTSA and
many of the world's leading auto manufacturers. The purpose of
this agreement is to research, develop, and demonstrate non-
invasive in-vehicle technologies that can very quickly and
accurately measure a driver's BAC. The Insurance Institute for
Highway Safety estimates that over 8,000 lives could be saved
if this technology is widely deployed in the U.S.
Senator Tom Udall and Senator Bob Corker have introduced
bipartisan legislation, the ROADS SAFE Act, which would
authorize an addition--$12 million per year for DADSS. ROADS
SAFE has been included as part of the Motor Vehicle Safety Act
in both the House and the Senate.
On behalf of all DUI victims and potential future victims
of this violent crime, MADD urges Congress to pass the MVSA
this year with an authorization for this program.
Turning to the grant programs, MADD agrees with GHSA, that
the program needs to be streamlined. It is also critical that
dollars are spent on programs that work. SAFETEA-LU traffic
safety grants represent the majority of funds that States spend
on drunk-driving prevention. With respect to the impaired-
driving grant program, MADD recommends doing away with the
qualifying criteria, so that all States automatically receive
their funding. But, funding must be spent on activities that
can save the most lives, with meaningful performance and
activity measures in place to gauge program effectiveness.
NHTSA must have the authority to ensure that the States are
moving in the right direction.
A series of IG and GAO reports have been released showing
what is needed to improve traffic safety grant programs. The IG
and the GAO have made several recommendations to NHTSA,
including the development of performance measures, in
coordination with the States. While NHTSA has since worked with
the States to develop performance measures, MADD does not feel
that these measures are meaningful enough to fulfill the intent
of the IG and the GAO.
MADD appreciates the work of this committee that you've
done in the years, directing GAO and the IG to review NHTSA's
programs, and in outlining steps that NHTSA can take to improve
its oversight functions and the effectiveness of State
expenditures. We look forward to working with the Committee to
make additional improvements.
To conclude, this committee's leadership is important, and
we will eliminate drunk driving. MADD asks the Committee to
consider ways to make ignition interlocks part of the next
reauthorization bill, and we also thank you for turning cars
into the cure for drunk driving by passing the ROADS SAFE Act
and implementing the Highway Safety Grant Program changes to
ensure that States receive the funding and spend it on
activities that will save the most lives and prevent injuries.
Thank you very much.
[The prepared statement of Ms. Dean-Mooney follows:]
Prepared Statement of Laura Dean-Mooney, National President,
Mothers Against Drunk Driving (MADD)
Thank you, Chairman Pryor and Ranking Member Wicker, for the
opportunity to testify before the Subcommittee on Consumer Protection,
Product Safety, and Insurance. Your leadership and the leadership of
this committee are to be commended as we work to save lives and
eliminate drunk driving in our Nation.
Just last week, Mothers Against Drunk Driving (MADD) celebrated its
30th Anniversary with a national conference held here in our Nation's
Capital. This past Thursday we held a rally on the Hill, with hundreds
of MADD volunteers focused on one thing: the elimination of drunk
driving in America.
Since our founding in 1980, drunk driving fatalities have dropped
by over 40 percent. We are proud of our successes, but as we reflect on
30 years of advocacy with the goal of saving lives, we must not accept
complacency. We all must recommit to saving lives and the elimination
of drunk driving. The National Highway Traffic Safety Administration
(NHTSA) recently released its fatality analysis reporting system (FARS)
statistics. While fatalities are down, there is much more work to be
done. Every one of us should be outraged that 10,839 people, one-third
of all highway fatalities, died due to drunk driving.
Over MADD's 30 year history of advocacy, 300,000 lives have been
saved since our founding. We have put a face to the crime of drunk
driving, sharing story after story of lives cut short due to someone's
senseless actions. It is these stories, including my own, that continue
to propel our organization forward, moving toward the attainable goal
of eliminating this public health epidemic once and for all.
I became involved with MADD after my husband, Mike Dean, was killed
in Texas by a drunk driver, leaving me to raise our 8-month-old
daughter alone. On November 21, 1991, Mike left a business meeting in
Oklahoma and drove to the Dallas-Fort Worth area to visit his family.
At 7:15 p.m., a drunk driver going the wrong way on a Texas highway
met Mike's car head on, killing him instantly and simultaneously making
me both a grieving widow and a single mom. The offender, who died at
the crash scene, had a blood alcohol concentration (BAC) of .34 and was
driving with an almost empty bottle of whiskey in his car.
For more than 17 years, I have worked as a volunteer to advance
MADD's mission at the local, state, and national level.
Mr. Chairman, we have made great progress in the fight against
drunk driving--much of which occurred in the 1980s and through the mid-
1990s--thanks to strong laws like the 21 minimum drinking age,
administrative license revocation, zero-tolerance for youth, and the
national .08 BAC standard. These laws coupled with the equally
important efforts of law enforcement, publicized at certain high-risk
times of the year through high-visibility crackdown mobilizations, have
led to tremendous reductions in fatalities and injuries.
While drunk driving fatalities have decreased, America continues to
practice a ``catch and release'' program: law enforcement does their
very best to catch drunk drivers, and we as a society through our
legislatures and courts, oftentimes let them go with few consequences.
A couple of statistics collected by the National Highway Traffic
Safety Administration (NHTSA) paint a startling portrait of what's
happening on our roads.
One Arkansas resident holds the record for most DUI's with
44 convictions.
In my home state of Texas, 124,662 motorists are driving
with three or more DUI convictions and 18,271 are driving with
five or more convictions.
Unfortunately, this type of data is not available for all states.
Campaign to Eliminate Drunk Driving
Fortunately MADD, with support from Members of Congress, NHTSA and
others in the highway safety community, has a plan.
Following only those solutions proven to work, MADD announced the
Campaign to Eliminate Drunk Driving in November 2006.
The Campaign consists of three parts, all singularly focused on
putting a long-overdue end to drunk driving tragedies of our roads:
Support the heroes who keep our roads safe. High-visibility
law enforcement catches drunk drivers and discourages others
from driving drunk.
Require convicted drunk drivers to blow before they go.
Ignition interlock devices, or in-car breathalyzers, require
all convicted drunk drivers to prove they are sober before the
car will start.
Turn cars into the cure. Tomorrow's cars will protect each
of us, automatically determining whether or not the driver is
at or above the legal limit of .08 and failing to operate if
the driver is impaired.
High-Visibility Law Enforcement: A Proven Solution
Studies show that the combination of paid media ads combined with
high visibility law enforcement is proven to deter drunk drivers from
getting behind the wheel. MADD advocated authorizing $29 million per
year for NHTSA to conduct three annual mobilization efforts as part of
SAFETEA-LU. We thank the Committee for authorizing the program, and we
hope to see it continue at even more robust funding levels. Drunk
Driving: Over the Limit, Under Arrest is conducted twice yearly and
Click it or Ticket once per year. Both campaigns have been highly-
effective.
The paid ads target audiences at the highest risk to drive drunk.
While the ads are running on television and radio, law enforcement
conducts sobriety checkpoints and saturation patrols. Would-be
offenders see the advertisements, see law enforcement out in force, and
realize that they will be caught if they drive drunk.
MADD recommends that the next reauthorization bill include
increased funding for up to 5 yearly crackdowns focusing on drunk
driving and seatbelt enforcement.
Interlocks Save Lives
In the past, we as a society have focused on license revocation as
the primary countermeasure to drunk driving. If you're caught driving
drunk, you'll lose your driver's license. The reality is that 50 to 75
percent of these offenders will continue to drive illegally. In
addition, unless you live in an area with accessible mass transit
options, you need a car to get to and from work, school, treatment and
other everyday destinations.
An alcohol ignition interlock is a breath test device linked to a
vehicle's ignition system. When a driver wishes to start their vehicle,
they must first blow into the device. The vehicle will not start unless
the driver's BAC is below a pre-set standard.
The alcohol ignition interlock allows a DUI offender to continue to
drive wherever they need to go. He or she just can't drive drunk and
hurt your family or mine.
Studies overwhelmingly show that interlocks work. The Centers for
Disease Control (CDC) has reviewed ignition interlocks and has stated
that ``based on strong evidence of the effectiveness of interlocks in
reducing re-arrest rates, the (CDC) Task Force recommended that
ignition interlock programs be implemented.'' In addition to the CDC,
there are more than 15 published studies on interlock effectiveness
which show that interlocks are associated with substantial and
impressive reductions in recidivism, ranging from 50 percent to 90
percent. The evaluations involve a diversity of programs, accounting
for the variation in results.
The research on ignition interlocks is crystal clear and
irrefutable. Beyond the research, we have fatality data that proves
interlocks are effective. In 2005, New Mexico became the first state to
require interlocks for all convicted DUI offenders. Since this time,
DUI fatalities in the state have been reduced by over 30 percent.
Arizona passed a similar law in 2006 and has seen a 33 percent
reduction in DUI fatalities.
Today, thanks in part to MADD's campaign, 11 states require all DUI
offenders to use an ignition interlock device. Two states highly
incentivize DUI offenders to use an interlock and California passed a
pilot program requiring all convicted DUI offenders in four counties
(with a total population of 14 million people) to use an ignition
interlock device.
The population in these states and counties covers over 84 million
Americans--a subset of America that is now under the protection of all
offender ignition interlock laws.
Every American should be protected by this lifesaving policy. It is
the right thing to do be. That is why MADD is calling for a Federal
standard which would require interlocks for all convicted DUI
offenders. This is the same approach the Congress took with the 21
minimum drinking age law and the .08 per se BAC law. No state has ever
lost money as a result of the national standards.
While MADD has made great progress in state advocacy work, we have
encountered several roadblocks to progress. Therefore, we must turn to
the Congress for help.
An example of this roadblock is in Maryland where an ignition
interlock law was considered in a legislature dominated by criminal
defense attorneys. The Senate President, Michael Miller, is a DUI
defense attorney who, according to his law firm's website ``practices
in the areas of criminal law, traffic law, DWI and personal injury.''
Senator Miller worked to amend interlock legislation to remove the
interlock penalty for DUI offenders who plead down to a lesser
punishment, known as probation before judgment. Roughly half of those
arrested for DUI in Maryland will plead to this lesser offense.
In the House of Delegates, the Judiciary Chairman is also a well
known DUI defense attorney who routinely amends sound DUI law in favor
of significant judicial discretion. The Washington Post Editorial Board
commented on this fact in a March 30, 2010 editorial which I will
submit for the record. It is titled Maryland Lawmakers Need to Stop
Coddling Drunk Drivers.
Maryland is but one example. The truth is that these patterns exist
across the country. The need for a Federal interlock standard could not
be more clear.
In the House, Chairman Oberstar and Ranking Member Mica have
included just such a standard in their version of the highway
reauthorization bill. In the Senate, Senators Lautenberg and Tom Udall
have introduced the Drunk Driving Repeat Offender Prevention Act, or
DDROP, which mirrors language in the House reauthorization bill by
requiring all DUI offenders to use an interlock for at least 6 months.
MADD strongly urges this committee to work with the Senate
Environment and Public Works Committee to include an all offender
ignition interlock standard in the Senate version of the highway
reauthorization bill. The Insurance Institute for Highway Safety
estimates that 1,100 lives could be saved if every state required all
drunk drivers to use an ignition interlock device. This is due to
specific deterrence. MADD expects that more lives could be saved as New
Mexico and Arizona both experienced over 30 percent reductions in DUI
fatalities due to general and specific deterrence from widespread use
of ignition interlocks.
Advanced Alcohol Detection Technology
While interlocks are currently the most proven technology available
to stop drunk driving, a program is underway which could one day
literally eliminate drunk driving. During a 2007 Senate Environment and
Public Works hearing, Chairman Barbara Boxer referred to this effort as
the ``Manhattan Project'' for drunk driving.
The Driver Alcohol Detection System for Safety, or DADSS, is the
result of a cooperative research agreement currently underway between
NHTSA and the Automotive Coalition for Traffic Safety (ACTS), comprised
of many of the world's leading auto manufacturers. The agreement is a
public-private partnership with both entities providing $1 million per
year for 5 years.
The purpose of this $10 million agreement is to research, develop,
and demonstrate non-invasive in-vehicle alcohol detection technologies
that can very quickly and accurately measure a driver's BAC. The
Insurance Institute for Highway Safety estimates that over 8,000 lives
could be saved if advanced alcohol technology is widely deployed in the
United States. These advanced technologies offer the potential for a
system that could prevent the vehicle from being driven when the
driver's BAC exceeds the legal limit.
Any technology which is developed must be highly accurate, nearly
instantaneous, and not hassle the sober driver. If the technology is
successful, a sober driver would notice no difference in his or her
driving experience. Any technology developed must be set to detect
blood alcohol concentrations of .08 or above.
In the first phase of technology development, three companies have
been selected through a request for proposal process and testing will
be performed in conjunction with the Harvard Medical School. While we
are encouraged and hopeful that DADSS will succeed in identifying a
technology to one day eliminate drunk driving, we need the help of
Congress to guarantee that this technology becomes a reality.
Senator Tom Udall and Senator Bob Corker have introduced bipartisan
legislation, the Research of Alcohol Detection Systems for Stopping
Alcohol-related Fatalities Everywhere Act, or ROADS SAFE, which would
authorize an additional $12 million per year for DADSS. Many Senators
on this Committee are cosponsors of the legislation, and we thank them
for their leadership and support. In the House, Representatives Ehlers
and Sarbanes have introduced similar legislation.
ROADS SAFE has been included as part of the Motor Vehicle Safety
Act (MVSA) in both the House and the Senate. On behalf of all DUI
victims, and potential future victims of this violent crime, MADD urges
Congress to pass the MVSA this year with an authorization for this
program. The additional funding would provide an essential financial
boost to the development of this technology, as well as ensure a
greater Federal commitment toward eliminating drunk driving.
It is of vital importance that ROADS SAFE be authorized as soon as
possible. Every year that we allow drunk drivers to continue to drive
on our roads, there are thousands of unnecessary deaths and injuries.
MADD urges Congress to provide $12 million a year to address a problem
that costs the United States $130 billion each year. This is an
excellent return on taxpayer investment.
Reevaluating the Highway Safety Grant Formula Program
MADD looks forward to working with you and your staff to provide
specific policy recommendations to strengthen the current highway
safety grant programs.
MADD agrees with our friends at the Governors Highway Safety
Administration (GHSA) that the highway safety grant program needs to be
streamlined. It is logical to combine programs into one large ``pot''
with funding allocated to those areas of critical importance to highway
safety. This allows states to use one application yearly instead of
applying for numerous different grants at various times throughout the
year. Because funding is limited, it is critical that dollars be spent
in key areas such as impaired driving, safety belts and data
collection.
MADD would like to offer some particular recommendations toward the
impaired driving countermeasure program, commonly known as the 410
program.
First, it is imperative that impaired driving funds be distributed
to all states. Taxpayer's pay into the highway trust fund and it is
important that this funding go back to the states to be spent on proven
impaired driving countermeasures. Currently, the 410 program requires
states to meet certain criteria each year in order to qualify for this
funding. In addition, the 10 best and 10 worst states automatically
receive funding. MADD would like to do away with this current
structure. While well intended, the 410 program creates an unnecessary
burden to states in order to receive funds. We do not want to withhold
this funding from any state since it serves as such a large portion of
all funds spent on impaired driving efforts. What we do want is to make
sure that funds are spent wisely and effectively.
MADD recommends that funding be spent on activities that work, and
performance and activity measures should be in place to gauge program
effectiveness. In the impaired driving category, this means activities
like implementation of alcohol ignition interlock programs, law
enforcement activities, DUI data collection, and DUI judicial education
such as through the Traffic Safety Resource Prosecutor (TSRP) program.
In return for receiving funds, states must create specific,
meaningful performance and activity measures that will show progress,
or lack thereof, in reducing DUI fatalities year to year. States should
be measured against themselves year to year.
MADD also asks the Committee to consider giving NHTSA more
authority in working with states as they develop their strategic
highway safety plan. In the past, NHTSA had plan approval authority to
ensure that states were spending funds effectively. That authority was
taken away in the late 1990s, and as a result there have been concerns
that NHTSA does not have enough recourse to effectively work with
states which are trending in the wrong direction.
Concerns that grew as a result of the removal of NHTSA's plan
approval authority led this committee and others to consult with the
Office of the Inspector General (OIG) and the Government Accountability
Office (GAO). A series of OIG and GAO reports have been released,
showing what is needed to improve traffic safety grant programs. Some
of these reports focus specifically on impaired driving resources.
In the OIG's Department of Transportation (DOT) FY 2007 Top
Management Report, the OIG states that:
``[N]o appreciable improvement in the number of highway
fatalities can be achieved until alcohol-related fatalities
drop dramatically. States are the linchpin in achieving this
drop and ensuring that $555 million in Federal funding
authorized for state alcohol-impaired driving incentive grants
are targeted toward strategies that have the most impact.''
One of the OIG's recommended actions from the FY07 report was:
``Promoting Improved Performance Measures and Enhanced State
Accountability to Maximize Efforts to Reduce Fatalities Caused by
Impaired Driving.'' The report goes on to state the following:
``NHTSA--the lead Federal agency responsible for reducing
alcohol-impaired driving--could assist in this effort by
ensuring that the states include more meaningful measures
linked to key program strategies in their performance plans.''
While NHTSA has since worked with the states to develop indicators
to measure performance in priority program areas, MADD does not feel
that these measures are meaningful enough to fulfill the intent of the
OIG.
In a March 2007 OIG report titled ``Audit of the National Highway
Traffic Safety Administration's Alcohol-Impaired Driving Traffic Safety
Program'' (report #MH-2007-036), the OIG states:
``Officials in NHTSA and the 10 states we reviewed attributed
success in combating alcohol-impaired driving to many factors.
They agreed that, while other strategies may be important, a
successful traffic safety program should include strategies
focusing on two key elements: (1) sustained enforcement of laws
(to include highly visible police presence and media efforts)
and (2) effective prosecution and full application of available
sanctions . . . we concluded that NHTSA should do more to
measure state implementation of these strategies so that
additional funding for countering alcohol-impaired driving is
effectively used.''
The OIG includes the following table as an example of potential
improved performance measures:
Table 3. Benefits From Potential Improved Performance Measures
------------------------------------------------------------------------
Potential Improved
Strategy Performance Potential Benefits for NHTSA if
Measure States Used Such Measures
------------------------------------------------------------------------
Sustained Accomplish NHTSA could better determine the
Enforcement sustained degree to which states were
enforcement at a carrying out SAFETEA-LU
set percentage* required assurances to pursue
of at-risk areas this strategy.
in the state.
NHTSA could better determine
whether emphasis on sustained
enforcement had an impact on
alcohol-related fatalities and
injuries in at-risk areas.
Prosecution and Achieve a set NHTSA could better determine
Sanctions percentage* of whether specialized training
successful programs for prosecutors had an
convictions for impact on conviction rates.
alcohol-impaired
driving offenses.
NHTSA could better determine the
impact of structural change,
such as the establishment of
courts specializing in alcohol-
impaired driving cases.
------------------------------------------------------------------------
Source: OIG.
* Percentage to be determined by NHTSA and the states.
To demonstrate the lack of NHTSA's ability to fully gauge the
impact of Federal resources on traffic safety, and the way in which
establishing more meaningful performance measures and goals would help,
the OIG points out that:
``According to NHTSA, sustained enforcement was defined as `at
least one enforcement event conducted weekly in areas of a
state where 60 percent or more of the alcohol-related
fatalities occurred.' Yet, none of the states included this
measure in their annual plans or reports provided to NHTSA . .
. Regarding effective prosecution, NHTSA had not yet
established a specific measure, although one state did report
to a limited extent on improvements in conviction rates for
alcohol-impaired driving offenses.''
The GAO has also reviewed NHTSA's programs, highlighting management
difficulties in a March 2008 and stating that:
``NHTSA's intermediate outcome measures do not include measures
to track behaviors that influence alcohol-related fatalities.
Such measures could include the numbers of impaired driving
citations issues, arrests, and convictions.''
The OIG and GAO have made several recommendations to NHTSA,
including the development of intermediate performance measures in
coordination with the states. Since that time, MADD is pleased that
NHTSA and the states have moved forward with the development of
performance and activity measures. However, the report that resulted
from this collaborative effort, in MADD's opinion, has not resulted in
the establishment of meaningful performance and activity measures that
respond to serious concerns raised by this Committee and the OIG and
GAO. The August 2008 NHTSA/DOT report, titled ``Traffic Safety
Performance Measures for States and Federal Agencies'' (DOT HS 811 025)
is a starting point, setting forth a ``minimum set of performance
measures'' (emphasis added), but does not go far enough.
MADD appreciates the work this Committee has done over the years in
directing GAO and the IG to review NHTSA's programs, and outlining
steps that NHTSA can take to improve its oversight functions and the
effectiveness of state expenditures. We look forward to working with
the Committee to make additional improvements, with the ultimate goal
of eliminating drunk driving.
MADD has one final recommendation that we would urge the Committee
to consider: we believe it would be beneficial to encourage all states
to hire a statewide DUI coordinator. This is based on the highly
successful model of New Mexico's appointment of a DUI Czar. Drunk
driving is an enormous problem that encompasses many jurisdictions: law
enforcement, the judiciary, administrative offices, probation,
treatment, etc. Often times these jurisdictions do not effectively
coordinate and communicate their efforts, making it difficult to have a
functional system in place. A DUI coordinator would also bring greater
accountability and minimize finger pointing between state agencies. We
believe that if every state had a DUI coordinator we would see great
improvements in state efforts to combat drunk driving, much like in New
Mexico.
Conclusion
The Campaign to Eliminate Drunk Driving started as a lofty goal in
2006 and has rapidly progressed to being on the verge of reality. In
2006, just 2 million Americans were protected by all offender interlock
laws. Today, 84 million people are protected by these laws, but MADD
will not stop until interlocks for all offenders becomes the law of the
land.
With this Committee's leadership, we will eliminate drunk driving.
MADD asks the Committee to consider ways to make alcohol ignition
interlocks an important part of the next reauthorization bill.
We also ask for the support of Congress to turn cars into the cure
for drunk driving by passing the ROADS SAFE Act.
Finally, by streamlining and revamping the current highway safety
formula grant program, we can make changes which will ensure states
receive their funding and spend it on activities that will save the
most lives and prevent the most injuries.
Thank you to this Committee, and thank you to Chairman Pryor, and
Ranking Member Wicker, for holding this important hearing, and for your
leadership on this issue.
Senator Pryor. Thank you.
Mr. Pedersen, can you give your opening statement in, say,
3 to 5 minutes? Is that----
Mr. Pedersen. I had certainly----
Senator Pryor. If that's possible, then I'll stay, and then
we'll recess as soon as you finish. Thank you very much.
STATEMENT OF NEIL PEDERSEN, ADMINISTRATOR,
MARYLAND STATE HIGHWAY ADMINISTRATION;
AND REPRESENTATIVE, GOVERNOR'S HIGHWAY SAFETY ASSOCIATION
(GHSA)
Mr. Pedersen. Thank you, Mr. Chairman.
My name is Neil Pedersen. I'm the Maryland State Highway
Administrator, as you said, and also the Governors Highway
Safety Representative from Maryland. And I thank you for the
opportunity to testify today on behalf of the Governors Highway
Safety Association.
Governors Highway Safety Association members administer one
formula grant program, seven incentive grant programs, and two
penalty transfer fund programs. And, as you heard earlier from
Senator Wicker, we're very concerned about the fact that these
all have different schedules, they all have been put together
in a piecemeal fashion. So, our first recommendation is that
there be a national plan developed that takes a more strategic
approach toward highway traffic safety. A national plan should
be developed under NHTSA's leadership, but working together
with State, local, and private-sector input.
We also strongly recommend that there be a single Highway
Safety Grant Program, with earmarks for impaired driving,
occupant protection, and motorcycle safety, with a single
application date at the beginning of the Federal fiscal year,
and support, in concept, the approach taken by the House
Transportation Infrastructure Committee.
We also would like to spend less of our time on the
administrative parts of having to apply for funds, and have
more of our time and money be going into, actually, the
programs themselves.
We're very much in favor of a performance-based approach.
We have worked together with NHTSA on a core set of 15
performance measures. We would like to see the programs really
be far more focused on where the performance data is saying we
have our biggest problems, and also based on where research is
saying that we will have the greatest effect, in terms of where
we have invested our dollars, as well.
In terms of specific program changes, we support expanding
the purpose and scope of the 2010 Motorcyclist Safety Program,
combining the three occupant protection programs into a single,
more-performance-based program, and focusing the 410 Impaired
Driving Incentive Program and the countermeasures that have
been proven to be most effective; that is really letting the
data and the research results drive where the money is being
spent in the 410 Program itself.
We'd also support authorization of funding to combat
aggressive driving and excessive speeding. We believe, today,
there is not enough Federal funding focus on the speed problem
itself. Speed accounts for approximately one-third of all
crashes, yet there are no funds dedicated to combat speed.
We also support funding to encourage States to improve
their graduated driver licensing programs. We're very
supportive, in concept, of the incentives that Senator
Klobuchar has proposed.
GHSA very strongly supports substantially increased funding
for data improvements. We believe that that's really the basis
for a sound performance-based approach. Today, we do not get
nearly enough money, in terms of supporting data programs and
data improvements. If we're going to be most effective in a
performance-based approach, we really do have to have a sound
data basis for the programs themselves.
And finally--and there's more detail in my written
testimony--we would really like to see more emphasis on funding
both of research and training. Really, today, the key, from my
perspective and from GHSA's perspective, is, we should be
putting our money where research has told us we'd get the
greatest results. In the many, many different programs, only
about a third of them really are based on what I would call
sound scientific-research basis. And we need to have more money
for research telling us where our money should be going.
And as many of the baby-boomers, who are leading the safety
efforts, are reaching retirement age, we really have to be
training the next generation of safety professionals.
In summary, GHSA has recommended that the current grant
planning and application process should be consolidated and
streamlined; programs should be more performance-based, with
greater flexibility, and some programmatic changes should be
made.
And I appreciate the opportunity to testify before you
today.
Thank you.
[The prepared statement of Mr. Pedersen follows:]
Prepared Statement of Neil Pedersen, Administrator, Maryland State
Highway Administration; and Representative, Governor's Highway Safety
Association (GHSA)
I. Introduction
Good morning. My name is Neil Pedersen and I am Administrator of
the Maryland State Highway Administration and Governor's Highway Safety
Representative for Maryland. This morning I am representing the
Governors Highway Safety Association. GHSA is a nonprofit association
that represents state highway safety agencies. Its members administer
Federal behavioral highway safety grant programs that are authorized
under Title II of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU). They are
appointed by their Governors to administer these grant programs and
implement statewide highway safety programs. Areas of focus include:
impaired driving; occupant protection; speeding and aggressive driving;
distracted driving; younger and older drivers; bicycle, motorcycle and
pedestrian safety; traffic records and highway safety workforce
development.
As you know, traffic-related fatalities and injuries continue to be
a major public health problem in this country. Although we have made
some progress, there were still more than 33,000 fatalities and 2.2
million injuries in 2009--the last year for which complete statistics
are available. Traffic crashes not only cause devastation to families
and individuals, but they also cost the Nation an estimated $230
billion annually. Unfortunately, these crashes happen in one's and
two's, so there is little public awareness about them and even less
public outcry against them.
To address this problem, the Federal Government must make the
reduction of highway fatalities and injuries a national priority and
play a strong role in developing highway safety policies and programs.
The Federal Government has played such a role since the enactment of
the Highway Safety Act of 1966. This Act solidified the Federal
leadership position on highway safety while also establishing a
partnership with state governments. The Act created the Section 402
State and Community Highway Safety grant program (23 U.S.C. 402) which
provided funding to states on a formula basis for developing and
implementing state highway safety programs. As the Congress develops
the highway safety programs under the next reauthorization, it is
important to maintain this strong Federal role. Just as the Federal
Government deems it important to prevent tobacco and drug use, underage
drinking or obesity, it must also protect the public on the roadways.
Without Federal assistance and leadership, especially in these
difficult economic times, it is unlikely that states would be able to
provide the necessary resources to enhance roadway safety and prevent
injuries and fatalities.
II. National Strategic Highway Safety Plan
As noted above, the Federal behavioral highway safety program has
grown since the Highway Safety Act was first enacted in 1966. New
programs have been added, others dropped. Under the Transportation
Equity Act of the 21st Century (TEA-21), five new incentive programs
and two penalty transfer programs were added to the existing Section
402 program and the Section 410 (23 U.S.C. 410) impaired driving
incentive grant program. Under SAFETEA-LU, four of those incentive
programs were dropped and five new incentive programs were added. Since
enactment of SAFETEA-LU, two new incentive programs have been proposed:
one addressing distracted driving and one supporting teen empowerment
programs. Vocal constituencies have pressured Congress to authorize new
Federal behavioral incentive grant programs that meet the narrow needs
of those constituencies. As a result, the Federal highway safety
program has been developed in a piecemeal fashion without an overall
plan, resulting in tremendous fragmentation of Federal behavioral
highway safety resources at the Federal level and administrative and
programmatic difficulties at the state level.
It is time, as the National Surface Transportation and Revenue
Policy Study Commission recommended in its 2009 report, to develop a
national highway safety strategic plan with national highway safety
goals. Other countries, such as Canada and Australia, have developed
national strategic highway safety plans that involved all levels of
government and the private sector in the development process. Each
state has its own Strategic Highway Safety Plans (SHSP), as required by
Section 148 of SAFETEA-LU. The missing component is a national plan.
GHSA supports the development of a comprehensive national strategic
highway safety plan and recommends that that the next reauthorization
bill should call for the creation of such a plan.
GHSA also supports a vision of zero highway safety fatalities. The
loss of one life is one too many. Over time, and with education,
enforcement, safety infrastructure improvements, vehicle improvements,
and technological advances, such an ambitious goal can be achieved.
Further, GHSA supports the interim goal recommended by the American
Association of State Highway and Transportation Officials (AASHTO) and
others of halving fatalities by 2030. This interim goal would require
annual reductions of 1,000 fatalities a year. In 2006, the country
nearly reduced fatalities by that amount, demonstrating that yearly
reductions of this magnitude are possible. Since that time, fatalities
have been reduced by more than 1,000 per year, culminating in the most
recent reduction of more than 3,000 fatalities in 2009 alone. While the
poor economy has played a major role, these reductions cannot be
explained solely by the economic downturn. Implementation of effective
countermeasures, vehicle and roadway improvements and greater
coordination among state agencies involved in highway safety have all
contributed to the declines in fatalities. GHSA recommends that the
next reauthorization should support this vision and interim goal and
should provide both the resources and the programs to enable
achievement of the interim goal.
GHSA is part of an informal State Highway Safety Alliance comprised
of the American Association of Motor Vehicle Administrators (AAMVA),
AASHTO, the Association of State and Territorial Health Officials
(ASTHO), the Commercial Vehicle Safety Alliance (CVSA), the
International Association of Chiefs of Police (IACP) and the National
Association of State Emergency Medical Service Officials (NASEMSO) who
are participating in the development of a national strategic highway
safety plan. These groups have issued a set of principles for the next
reauthorization of Federal highway safety programs including
behavioral, commercial motor vehicle and safety infrastructure. (Please
see attachment).
III. Performance Measures
The Government Accountability Office (GAO), the U.S. Department of
Transportation Inspector General (IG) and the National Surface
Transportation Study Commission all recommended the Federal behavioral
highway safety programs become more performance-based. In fact, the
behavioral programs are already more performance-based than other
Federal surface transportation programs. States are currently required
to identify their highway safety problems using various data, set
annual performance goals for reducing fatalities and injuries, and then
report at the end of the year on whether they have reached those goals.
GHSA concurs that the behavioral highway safety programs should be
more performance-based and sees that as the next step in enhancing the
state planning process. Beginning in 2004, GHSA took steps on its own
to enhance state highway safety planning and encourage more
performance- and research-based decisionmaking. The Association
developed a template for state Highway Safety Plans and Annual Reports
that strengthens the goal-setting and reporting processes. In 2006,
GHSA, with funding from the National Highway Traffic Safety
Administration (NHTSA), produced a report summarizing all the current
research on effective highway safety countermeasures. The report,
Countermeasures That Work, has been updated annually by NHTSA and has
been used by states to select research-based, effective countermeasures
for their annual Highway Safety Plans.
In 2008, to address the concerns raised by GAO and others, NHTSA
and GHSA embarked on a process to identify, by consensus, a common set
of performance measures that all levels of government will use in their
highway safety planning processes. Currently, there is agreement on ten
outcome measures, two behavioral measures and three activity measures.
States began to use the first fourteen measures in their FY 2010
Highway Safety Plans (HSP) and year-end Annual Reports (AR) and will
continue to do so annually. States have begun to use the 15th measure
with their FY 2011 HSPs and ARs and will do so annually (Please see the
reports and materials located here: www.ohsa.oro/html/projects/perf
msrs/index
.html.). A similar consensus process has been undertaken to identify a
common set of performance measures for traffic records systems. GHSA
recommends that if Congress should create a performance-based
behavioral highway safety grant program, that it should use the
performance measures already developed cooperatively between GHSA and
DOT and currently in use by the states.
For states that are under-performing, the House Transportation and
Infrastructure bill proposes that the Department of Transportation
should have the authority to reprogram a state's funds. There is
already a process for DOT to review a state's performance annually and
recommend improvements. This process, known as the Special Management
Review (SMR) process, is a collaborative one between the
underperforming state and NHTSA's regional office in which the state is
located. The decision to reprogram funding could be an adjunct to that
process but should be a mutual decision between the state and Federal
agency. The House bill also continues but reduces the size of the
penalties for states failing to submit an adequate plan that were
authorized under the Highway Safety Act of 1966. It is unclear when
those penalties would ever be used against an under-performing state if
its funds are reprogrammed and a revised HSP is submitted. GHSA
recommends that the penalties should be repealed.
If Congress concurs that the behavioral highway safety programs
should be more performance-based, it must provide the resources to
states to collect the necessary performance data. The current Section
408 data improvement program (23 U.S.C. 408), which is primarily
focused on improvements to crash data systems, is only funded at $34.5
million a year. The average grant to states is only $500,000.
Improvements to traffic records systems are extremely expensive.
Pennsylvania's enhancements to its crash data system, for example, cost
the state more than $10 million. The Federal Government cannot be
expected to pay the entire cost of improving state data systems;
however, it is clear that funding for the 408 program is woefully
inadequate.
Further, states are increasingly funding improvements in the other
components of traffic records systems, particularly e-citation systems,
DWI information tracking systems and emergency medical services (EMS)
information systems. If states are expected to collect performance data
such as statewide citation data or more precise injury data, then they
need the funding to automate data collection and make other
improvements to the data systems that would yield the requisite
performance data. GHSA urges that the funding for the 408 program
should be increased substantially to $100 million a year. The
Association further recommends that no programmatic changes should be
made to the Section 408 program.
Another problem is that there is no uniform definition of serious
injuries, so it is difficult to determine improvements in performance
on this issue. Most states use an injury measurement scale called KABCO
(killed, incapacitating injury, non-incapacitating injury, etc.). The
KABCO scale is a measure of the functional injury level of the victim
at the crash scene. The codes are selected based on the on-site
judgment of the investigating police officer completing the crash
report.
However, KABCO is imprecise and relies on overworked law
enforcement officials at the scene of a crash to make a determination
of the extent of injury. A more precise serious injury surveillance
system must be put in place. There is unanimity in the highway safety
community that there is a need for greater uniformity in the definition
of serious injuries. GHSA recommends that NHTSA should be directed to
use a portion of its Section 403 Research and Demonstration funding (23
U.S.C. 403) to develop, by consensus, a more accurate definition of
serious injuries.
IV. Program Consolidation
Another concern is the proliferation of incentive grant programs.
The difficulty is that the funding streams are stove-piped, which
causes fragmentation and impedes comprehensive, performance-based
planning and programmatic implementation. The National Study
Commission, the Bipartisan Policy Group, Transportation 4 America and
others have all called for greater consolidation of Federal surface
transportation programs. It is expected that the Administration's
reauthorization bill will include greater consolidation of surface
transportation programs.
In the House bill, all of the behavioral grant programs (except the
Section 408 data improvement program) are consolidated into a single
program with earmarks for impaired driving, occupant protection and
motorcycle safety. GHSA strongly supports the House program
consolidation proposal and urges that it should be enacted.
GHSA believes that if Congress is pressured by constituent groups
to continue separate grant programs, then it must streamline the
administration of those programs and give states more flexibility on
the use of the funding. Currently, there are different applications and
application deadlines for each incentive program. One application is
due in February, one in June, three in July, two in August and one in
September. Some of the applications are for funding in the current
fiscal year, others for funding in the upcoming fiscal year. Half of
the incentive funding isn't given out until the end of the fiscal year.
States are forced to carry over funding until the next fiscal year, yet
they are criticized for having too much carryover money. Such a
fragmented approach makes it extremely difficult for states to plan or
implement their annual programs effectively.
Whether there is a consolidated program or not, GHSA strongly
recommends that there should be a single grant application deadline as
well as a single application and that all of the grant funding should
be allocated on October 1. We recognize there will be a transition in
which states that enact certain qualifying legislation won't receive
grant funding until the following Fiscal Year. GHSA recommends that the
current deadlines and applications should continue in the first year of
the reauthorization to give the states a chance to get used to a new
process. Following that, the single application, deadline and grant
allocation should go into effect.
If separate behavioral highway safety grant programs are
authorized, GHSA strongly recommends that there should be greater
flexibility between those programs. Currently, states have no
flexibility to move funding between programs. States should be allowed
to flex a portion of their behavioral highway safety grant funds based
upon their demonstrated needs. As part of their annual HSP, states are
required to submit data indicating their main highway safety problems.
This assessment can be used to justify spending more funding in a
particular area such as impaired driving, occupant protection or
motorcycle safety. It is Congress' interest to ensure that states spend
their Federal funding in the areas where it will have the most impact
and address the greatest need.
GHSA further recommends states should be given the authority to
pool a small portion of their highway safety grant funds. Currently,
states are not allowed to pool any NHTSAadministered state grants. When
an initiative is undertaken on a regional basis with 402 funds (such as
the Smooth Operator aggressive driving program in Pennsylvania,
Washington, D.C., northern Virginia, and the Maryland suburbs), the
participating states must go through a cumbersome process of
transferring funds from one jurisdiction to another. A mechanism should
be set up to allow states to work together regionally on law
enforcement activities or paid media and other educational campaigns.
States also should be able to pool funds to support specific highway
safety research projects, as is allowed with Federal-aid highway
funding. Similarly, a mechanism should be established to allow states
to work together on data improvements. Multiple states, for example,
may want to fund specific enhancements to software programs jointly
used by those states. Or, they may want to hire a data contractor who
can serve all the states in a region. There may be substantial savings
by allowing states to pool their funds in this manner.
V. Program Improvements
The current incentive grant programs have provided needed funding
to states to address a range of highway safety issues. However, in at
least two of the incentive programs, the eligible uses of incentive
funds are too restrictive.
While the Section 410 program has been a valuable tool for
enhancing state resources to address drunk driving, some of the 410
criteria have proven too difficult to implement (e.g., the BAC testing
requirement), and others (e.g., the self-sufficiency requirement) have
not encouraged any state action. GHSA expects that a number of states
will fall out of compliance with the program because the requirements
are too stringent. This is counterproductive. If the program is
continued as a separate categorical grant program, GHSA recommends the
program be refocused on those countermeasures that are known to be
effective (e.g., high visibility enforcement, DUI courts and judicial
education) or have the potential to be extremely effective (e.g.,
interlocks for first time offenders). GHSA supports the MADD Campaign
to Eliminate Drunk Driving. These changes in the 410 program are very
much in line with the Campaign and would help to realize the Campaign's
goals.
The Section 406 primary seat belt incentive grant program (23
U.S.C. 406) has only been modestly successful. Only a handful of states
have enacted primary seat belt laws since the programs' inception. If
there is separate funding for occupant protection, GHSA recommends that
the 406 program should be combined with the Section 405 program (23
U.S.C. 405) and the Section 2011 child passenger protection program to
form a single occupant protection program. Funds should be allocated to
states based on a number of criteria such as seat belt use rates,
fatality rates of unbelted drivers and primary seat belt and booster
seat law enactment. Funding should be used to support a range of
occupant protection activities such as high visibility and sustained
enforcement, paid media, education programs, seat belt usage surveys,
child passenger technician training, child restraint usage surveys, and
child passenger protection education and enforcement programs.
States that do not have primary belt laws or very high belt usage
do not currently qualify for 406 funds. This has put tremendous
pressure on their 402 allocations to fund the annual law enforcement
mobilization and paid media. If the 406 program were restructured, it
would provide a base of funding for occupant protection activities
(including the annual high visibility mobilization) while allowing
states to use their 402 funding for other safety purposes.
If the 2010 motorcyclist incentive grant program is continued as a
separate grant program, changes need to be made to it. It is also too
restrictive and too small to have an impact. As GHSA's recent Survey of
the States: Motorcycle Safety Programs showed, many states are no
longer able to support their motorcycle safety programs based on
licensing and training user fees alone. More Federal assistance is
needed--funding for the 2010 program should be increased substantially,
to $20 or $25 million.
NHTSA's National Agenda for Motorcycle Safety (NAMS) has shown that
the best way to advance motorcycle safety is to address the problem
comprehensively by focusing on such areas as licensing, education and
training, protective gear, roadway safety, public information programs
on speeding and impairment, conspicuity, enforcement, vehicle
improvements, and sharing the road. The current 2010 program prohibits
states from addressing the problem of motorcycle safety
comprehensively. Eligible states should be allowed to use the funding
for additional purposes such as licensing improvements, helmet
education and enforcement programs, and impaired motorcycling programs.
States should also be required to designate a lead state motorcycle
safety agency and prepare a motorcycle safety strategic plan.
GHSA also recommends that there should be a focus on aggressive
driving and speed management in the next reauthorization. Speeding is a
factor in an estimated one-third of all crashes--a figure that has
remained unchanged over the last decade. Speeding costs society an
estimated $40 billion annually. According to the NHTSA-funded 2005
Speed Forum report, ``speeding dilutes the effectiveness of other
priority traffic safety programs, including efforts to reduce impaired
driving, increase safety belt use, and improve pedestrian and
motorcycle safety. Speeding and speed-related crashes occur on all road
types, from limited-access divided highways to local streets. Drivers
speed in all types of vehicles. Speeding is a local, state, and
national problem.'' Speeding is one of the three primary factors in
fatalities and injuries (along with impairment and failure to wear
occupant protection devices) and is a major factor in aggressive
driving, yet there are no Federal funds specifically to address the
problem.
A 2005 study published by the Transportation Research Board (TRB)
found that a 1 percent decrease in travel speed reduces injury crashes
by about 2 percent, serious injury crashes by about 3 percent, and
fatal crashes by about 4 percent. On a street with an average travel
speed of 40 mph, a reduction to 38 mph is a 5 percent decrease. Crashes
would be reduced by about 10 percent, serious injury crashes by about
14 percent, and fatal crashes by about 19 percent. Clearly, a small
reduction in speeds can have a big impact.
GHSA recommends that states should be encouraged to undertake speed
and aggressive driving enforcement, conduct speed management workshops
in their states, implement automated speed enforcement programs, or
conduct public information campaigns about speeding and aggressive
driving. In addition, GHSA recommends Congress fund a national campaign
to re-educate the public about the dangerous consequences of speeding
and aggressive driving, a biennial national speed monitoring data
collection study to determine how fast the traveling public is actually
going and research into emerging technological applications for
measuring and controlling speed and aggressive driving.
Another area of concern not addressed by SAFETEA-LU is teen
driving. Although teen driver fatalities have decreased by 20 percent
between 1988 and 2008, teens are still over-represented in fatal
crashes. Motor vehicle-related fatalities are the leading cause of
death for teenagers, and nearly 3,000 teens were killed in 2008. One of
the most effective countermeasures is the graduated driving license
law. Forty-nine states (excluding North Dakota) have graduated driver
licensing laws. However, some states do not limit (or have high limits)
on the number of passengers allowed in the vehicle and have lenient
restrictions on nighttime driving. Research has shown that a teen's
risk of crashing increases substantially with each passenger. (That is,
with one passenger, the risk is doubled. With two passengers, the risk
is quadrupled.) Similarly, research has shown that there is a peak of
teen crashes at night. By limiting driving to earlier nighttime hours,
the risk of a teen crash is reduced. GHSA recommends that the next
reauthorization should address teen driving and provide positive
encouragement to states to strengthen the nighttime and passenger
restrictions.
A final area not addressed by SAFETEA-LU is distracted driving.
According to NHTSA, nearly 6,000 persons were killed in crashes related
to driver inattention and distraction in 2008. S. 1938, the Distracted
Driving Prevention Act of 2009, would provide incentives to states that
satisfy certain eligibility criteria. States must have a hand-held cell
phone ban, a texting ban and satisfy a number of other criteria. Eight
states are currently potentially eligible for grants. However, none of
the states will qualify because the criteria are too stringent. The
bill addresses distracted driving as if it were a mature highway safety
issue. In fact, it is an emerging issue on which there is relatively
little research on the effectiveness of certain countermeasures to
address distracted driving. State legislatures are enacting more simple
and straightforward legislation than they would if the issue were a
more mature one like impaired driving. Hence, the criteria for
increasingly stringent penalties and the one for making a crash
involving a fatality a criminal penalty are particularly problematic.
Further, the criteria to require states to include distracted driving
in the driver's manual and test are not supported by research at all.
If anything, research on driver education shows that it is not an
effective way to enhance driver safety. In the next reauthorization,
these criteria should be examined very closely and adjustments made
accordingly.
VI. Program Management, Research and Training
SAFETEA-LU authorized NHTSA to conduct management reviews (MR) of
states every 3 years and programmatic management reviews (SMRs) of
underperforming states. NHTSA initiated these processes in 2005 and has
been reviewing state programs since then.
In 2007, however, GHSA grew concerned about the consistency of the
reviews from state-to-state. The Association hired a contractor to
review the MR's and identify areas of inconsistency. In June of 2007,
representatives from NHTSA and GHSA met and worked collaboratively to
develop a more standardized approach to the MRs. The following year,
the contractor undertook a similar review of state SMRs. Another
collaborative meeting was held to develop a more standardized approach
to the SMRs. Both NHTSA and GHSA have established their own quality
control task forces to review the MRs and SMRs and ensure that the 2007
and 2008 agreements are being followed.
GHSA has also undertaken its own efforts to enhance the management
of state highway safety programs. It has developed a monitoring
advisory to help states enhance the monitoring of sub-grantees. It has
also developed a model Policies and Procedures Manual covering all of
the relevant Federal regulations and guidance for Federal behavioral
highway safety programs. GHSA's consultant will also begin working on a
self-assessment protocol so that state highway safety offices can
improve their management practices between Management Reviews.
The Management Reviews and Special Management Reviews have been
helpful to states and have identified issues that need to be addressed
by the state highway safety offices. The partnership between NHTSA and
GHSA has helped ensure that the MR and SMR criteria are applied
consistently across the country. GHSA recommends that the NHTSA
oversight requirements should be continued in the next reauthorization
unchanged.
SAFETEA-LU also authorized funding for research under 23 U.S.C.
403. However, the amount of funding devoted solely to behavioral
research is small--only $7.7 million in FY 2011--and partially
earmarked for specific research projects. NHTSA's behavioral research
budget has remained unchanged for more than a decade. This means that
research on the effectiveness of specific highway safety
countermeasures can be undertaken only if and when such research
reaches the top of NHTSA's priority research list. In fact, the
November 2008 National Cooperative Highway Research Program (NCHRP)
report on the effectiveness of highway safety programs found that, of
104 behavioral countermeasures, only 23 had sufficient research with
which to be able to determine cost-effectiveness. Without sufficient
research to indicate what works and what doesn't, states are forced to
implement best practices rather than appropriate research-based
programs. GHSA recommends that NHTSA's behavioral research budget
should be substantially increased.
Training is another area of concern for GHSA. There is tremendous
turnover among the Governor's Representatives and Highway Safety
Coordinators who run the state highway safety agencies, particularly as
baby boomers retire. It is critical that incoming leaders of state
highway safety offices and their staffs receive appropriate training so
that they can understand the complexities of highway safety and run
effective programs. As noted in the TRB Special Report 289, Building
the Road Safety Profession in the Public Sector, there is an urgent
need to improve the training for safety professionals and ensure that
it is multi-disciplinary. GHSA supports dedicated funding for NHTSA
training so that the agency can enhance all of its training, including
developing distance-based learning. Further, there is a need for NHTSA
to work more closely with the Federal Highway Administration and the
Federal Motor Carrier Safety Administration training operations.
Presently, there is no process for administering multidisciplinary
training such as the Highway Safety 101 course that was developed and
pilot tested under an NCHRP grant. As a result, the course, which
provides basic training for anyone (not just highway safety offices)
involved in highway safety, is languishing. GHSA recommends that a
small amount of funding should be authorized to support a safety
training coordination function within DOT.
GHSA appreciates the opportunity to testify before the Consumer
Subcommittee and looks forward to working with the Subcommittee and
full Committee on the next surface transportation legislation.
Attachment
Recommendations for the Surface Transportation Reauthorization
The undersigned organizations support the following recommendations for
the highway safety portions of the next surface transportation
reauthorization legislation:
Establish National Performance Goal and State Targets
The State Highway Safety Alliance urges Congress to establish a
national goal of halving motor vehicle fatalities by 2030 and authorize
a Federal program that enables state and local governments to attain
that goal.
State highway safety-related agencies should set state performance
targets in their federally-funded highway safety plans that would
enable them to move toward attainment of the national goal. The Federal
Highway Administration (FHWA), the National Highway Traffic Safety
Administration (NHTSA) and the Federal Motor Carrier Safety
Administration (FMCSA) should work cooperatively with state safety-
related agencies to identify performance measures with which to measure
state progress. At the end of each Federal Fiscal Year, states should
report results using agreed-upon performance measures. Rather than
penalizing states if they are unable to reach their safety targets
within a fixed time period, the Federal safety agencies and their state
agency counterparts should cooperatively identify creative strategies
for enhancing results at the state level.
Increase Safety Funding
Although progress has been made in highway safety, almost 34,000
people--more than 90 a day--were killed and 2.2 million were injured in
motor vehicle crashes in 2009. Most of these crashes were preventable.
Increased funding must be authorized to enable states to reverse these
troubling statistics and meet national safety goals and state highway
safety targets. The State Highway Safety Alliance urges Congress to
increase the level of Federal highway safety program funding
commensurate with increases in other core programs. Increased highway
safety funding for the grant programs administered by FHWA, NHTSA and
FMCSA would enable states to improve safety on the roadways, address
hazardous driving behavior and ensure that unsafe commercial motor
vehicles are taken off the road.
Streamline Program Administration and Enhance Flexibility
The Alliance urges Congress to consolidate separate categorical
highway safety programs to the greatest extent possible. Federal
programs should have a single application and application deadline.
Congress should identify eligible activities for the consolidated
funding, but states should have the flexibility to determine how much
funding should be used for each eligible activity so that funding is
targeted toward the most critical highway safety problems. Requirements
on states related to Maintenance of Effort (MOE), if not dispensed with
altogether, need to be simplified and made so they incentivize state
and local safety activities. They also should be based on activity
levels or outputs and not purely on funding.
Strengthen Strategic Highway Safety Planning
The Strategic Highway Safety Plan (SHSP) requirements of the Sec.
148 Highway Safety Improvement Program have been a positive force for
addressing safety in the states. The State Highway Safety Alliance
supports those requirements and recommends that they be strengthened.
States should continue to convene broad committees to oversee the state
highway safety planning effort. At a minimum, these committees should
consist of representatives of state and local agencies responsible for
engineering, education, enforcement, emergency medical systems,
licensing, and commercial vehicle safety. The SHSP should address
highway safety issues on all public roads, target funding to areas of
highest need as identified by state and local data, and set statewide
safety performance targets. Any separate federally-funded safety
implementation plans (e.g., the Highway Safety Plan, the Commercial
Vehicle Safety Plan, the State Transportation Plan) should support the
SHSP performance targets, and states should update their SHSPs at least
once during the reauthorization period.
Support Enhanced Data Collection and Analysis
The collection of performance data is central to the effective
functioning of Federal performance-based programs. In order to track
and analyze performance, states need to be able to collect more
complete, reliable and accurate data, have automated and linked data
systems, exploit emerging data collection technologies and utilize
better data analysis tools. Data improvements are complex and
expensive. Federal funds for these improvements have been inadequate.
This is a priority for states and the State Highway Safety Alliance
urges Congress to fund state data improvements at significantly higher
levels than current ones.
Increase Investment in Safety Research and Development
State highway safety programs are stronger and more effective if
they are built around evidence-based strategies. Research to produce
the evidence of countermeasure effectiveness has been difficult because
Federal funding for highway safety research is so limited. More
countermeasure research is urgently needed. Research is also needed to
evaluate emerging safety technologies, demonstrate and evaluate new
strategies for reducing highway deaths and injuries, develop model laws
and model programs and identify and document best practices. Additional
driver and vehicle-related research is needed to enhance the safety of
drivers and vehicles and to strengthen Federal regulations. The State
Highway Safety Alliance strongly supports increased funding for Federal
highway safety research.
Prepare the Safety Workforce for the Future
The highway safety workforce at the state level is aging, and
institutional knowledge about highway safety issues and programs will
be diminished when the current workforce retires. There have been few
efforts to attract young professionals into the field or enhance the
professional capabilities of the current workforce. Members of the
State Highway Safety Alliance are extremely concerned about this trend
and urge Congress to allow states to obligate their highway safety
grant funds (those administered by FHWA, NHTSA and FMCSA) for workforce
development, training and education with a 100 percent Federal share.
Congress should more adequately fund Federal highway safety training
for states, and a Center for Highway Safety Excellence should be
established to facilitate the development of innovative safety
workforce training (such as peer-to-peer training programs) and support
better integration of highway safety training of the three Federal
safety agencies.
Choose Incentives Over Sanctions
The Alliance submits that incentives are preferable to sanctions
and transfer penalties. Incentives give states the flexibility and
resources to find creative, results-oriented solutions that meet safety
goals and fit state and local needs. States are currently sanctioned
for at least seven different safety-related purposes. An over-reliance
on sanctions moves Federal highway safety programs away from a
cooperative Federal-state partnership and generates increased state
resistance toward the very safety issues that Congress wishes states to
address.
Neil Schuster,
President and CEO,
AAMVA.
Dr. Paul Halverson,
President, Director, Division of Health, Arkansas Department of Human
Services, ASTHO.
Vernon F. Betkey, Jr.,
Chairman, Chief, Maryland Highway Safety Office, GHSA.
Larry L. ``Butch'' Brown, Sr.,
President, Executive Director, Mississippi Department of
Transportation, AASHTO.
Francis (Buzzy) France,
President, Maryland State Police, CVSA.
Michael J. Carroll,
President, Chief of the West Goshen Township, Pennsylvania, Police
Department, IACP.
Steven L. Blessing,
President, Director, State of Delaware EMS, NASEMSO.
The State Highway Safety Alliance is comprised of the three major
recipients of the United States Department of Transportation grants as
well as other state-based safety stakeholders.
The Alliance represents state agencies with roles in improving
highway safety through infrastructure, driver behavior, licensing,
incident response, and enforcement approaches.
The IACP, while not a member of the alliance, shares its goals,
concerns, and priorities with respect to these recommendations for the
Surface Transportation Reauthorization.
Senator Pryor. Thank you very much.
We have these two rollcall votes, and if I don't leave here
in about 1 minute, I'm going to miss the first one. So, what
we'll do is, we'll recess. And my guess is, you know, we're
talking about maybe a minute--15 minute recess, something like
that.
But, we'll recess, subject to the call of the Chair.
And I want to thank you all for your testimony, and I look
forward to the questions.
[Recess.]
Senator Pryor. I'll go ahead and call us back into order.
I want to again, thank of all our witnesses for their
patience, and thank all of the members of the public who are
here and watching this for their patience, as well.
Again, I want to thank all of you for your statements and
keeping those as brief as you could so that the Committee could
run over and vote on the Senate floor.
Mr. Strassburger, let me ask you, if I may--you talked
about, in your statement a few minutes ago, that there has been
this partnership, or this collaboration, between government and
industry, and also other stakeholders. And I think your point
is that that collaboration has been effective and we need to
try to continue that as best we can.
Let me ask about the design of a vehicle--it's something
that Ms. Dean-Mooney mentioned a few minutes ago--where there's
now technology that's available, that I guess can be put in
cars, that might help with distracted driving, or might help,
maybe, you know, with some built-ins on a car, that maybe you
could put some things that might prevent drunk drivers from
using vehicles. Could you talk about that for a little bit?
Mr. Strassburger. Sure, Senator.
There are a number of technologies, so-called ``driver-
assist'' technologies, that we're developing currently, to help
the driver do their primary job better, which is maintaining
the safe control of their vehicle. So, some of these
technologies include lane departure warning systems, blindspot
warning systems, forward-collision warning systems--all of
which can help the driver maintain safe control of the vehicle.
And one of the other ones, in that same vein, we are also
working--and you heard the Administrator talk briefly about it
this morning--working with the NHTSA to develop advanced
technology that could monitor the blood alcohol concentration
of drivers, noninvasively, so that the sober driver would not
be hassled.
And that--we are in about the third year of a 5-year
program with the agency. We've just received device prototypes
that are being tested up at a lab in Boston, and they are
undergoing human-subjects testing, as well, with the help of
the Harvard Medical School. And they're showing great promise.
They would probably not be ready for vehicle integration for
another 5 or 7 years, but they are showing tremendous progress.
And I think we have benefited--our research has benefited
by the research that's being done for homeland security
purposes, to sense or sniff chemical precursors of IEDs or
other bad stuff. And once you know how to sniff one chemical,
it's just a matter of retuning to be able to sniff, in this
instance, for alcohol.
So, it shows a lot of great promise; and I think, should it
come to fruition, we stand a very good chance of eliminating
drunk driving.
Senator Pryor. Have you--has your organization been working
with MADD and other organizations on this?
Mr. Strassburger. Yes, we have. As I testified, we are
supporting MADD's campaign to eliminate drunk driving. That
campaign is modeled after the ``Click It or Ticket'' program,
which has proven to work, which means--as with any traffic
safety problem, we need strong laws, visibly enforced; consumer
education about those laws, and the fact that they're being
enforced, and how they can protect themselves; and then we need
to look at the role of technology. So it's that--the overall
package or the comprehensiveness of that program that's
ultimately going to get us to eliminating drunk driving. And
it's important that we do all of it, not just one piece of it.
Senator Pryor. Ms. Dean-Mooney, has your organization been
pleased with the collaboration you've had with the automakers?
Ms. Dean-Mooney. Yes, Senator, we absolutely have been.
MADD agrees completely with what Mr. Strassburger said, that
technology will ultimately be the key to the elimination of
drunk driving, and that all pieces have to come together.
Behavior modification is certainly a part of that; but, 30
years after we've been in place, people still drive drunk,
because they can, and because we tolerate it, as a society.
But, we are very pleased to be working with the Auto Alliance.
Senator Pryor. And you mention, I think, in your statement
a few moments ago, that not all industry is supportive of MADD,
maybe--I think you said the defense attorney--Criminal Defense
Bar and--did you say the alcohol industry? Who all is--who all
tends to be in a different place than you?
Ms. Dean-Mooney. Well, primarily the public supports our
efforts, which is the most important piece. Criminal defense
attorneys, and State houses often chair committees that our
bills will have to go through, and we hit--have hit roadblocks
there, because they choose not to let our bills go forward. The
good thing about us is, we continue to come back, we never go
away. But, the--certain segments of the alcohol industry will
also try to oppose our bills, as they have in the past with
.08, as they have with underage drinking laws, as well. But, we
will continue to show, through data, through research, that
what we speak about, is the facts, and what we believe will
happen is the elimination of drunk driving, ultimately.
Senator Pryor. Yes. Let me ask about that data question.
Mr. Pedersen, that's actually one of the questions I had for
you. Because I hear, from my folks in Arkansas--and I'm sure
other Senators have heard similar things from their States--
they--that the issue of data collection is critical, and I--my
understanding is, from a State's perspective, or city's
perspective, it can be very expensive, as well, to have the
right technology and the ability to collect data accurately.
What's your view of that, and what's your experience with that?
Mr. Pedersen. Absolutely, data is the key, particularly if
we want to be moving to a performance basis for the safety
programs. It's very expensive to collect data, it's also very
expensive to be analyzing and processing the data, as well.
Senator Pryor. Do you collect it through accident reports--
--
Mr. Pedersen. Yes.
Senator Pryor.--things like that?
Mr. Pedersen. Yes. From police agencies.
Senator Pryor. Right.
Mr. Pedersen. And then the data actually has to be
processed, and a lot of quality control has to be going into
it. There are a lot of issues that you have to be looking at,
in terms of consistency within the data, to be making sure that
it is quality data before you can be using it.
But, in the end, serving as a Governors Highway Safety
Representative, in an organization that really takes a
performance basis seriously, we want to be investing our
dollars where we know, first, we have a problem based on what
the data is telling us, and second, where the research is
telling us we can be making a difference. And the key to good
research is good data.
So, it's not just the analysis for the programs at the
State level, it's ultimately so that we can be having the
research results that ensures that we're investing the dollars
most wisely.
Senator Pryor. Ms. Gillan, I would like to ask you about
data, and the accuracy of data and data collection, and how we
measure how effective these safety programs are. Did you want
to have a comment on that?
Ms. Gillan. Well, Advocates has--all of the positions that
we take on Federal and State legislation is data-driven. And we
are concerned about the funding at NHTSA for the collection of
data. And I think that this committee did a great job, in the
MVSA bill, in really boosting NHTSA's vehicle safety programs,
and, in turn, supporting the collection of data for both FARS,
which is their annual Fatality Accident Reporting System, and
NASS.
Clearly, if we don't give NHTSA the resources to collect
that data, then it affects how the States do the programs that
they have, and also the programs that Congress has. And I think
that everybody on this panel would agree that--I don't think we
have done as good a job as we should in collecting that data
and getting it out there so that we can make those kind of
informed decisions.
Senator Pryor. And from your standpoint, is that a matter
of money and financing better data collection, better
technology?
Ms. Gillan. I think it's both. I think that we need to give
the agency the resources. I also think that we need to collect
better data, at the State level, on crashes right now. It's
very difficult to ascertain, in a police accident report,
whether, in fact, there has been some distraction, whether the
driver was using a cell phone or was texting. And I think
that's contributing to some of this confusion about, you know,
Are these laws working?
And the fact of the matter is, Senator, too, a lot of
crashes are multifactor crashes, they would involve speed and
texting. And so, it has been hard, I think, with the data that
we're collecting, to really clearly, sort of, see some of those
trends. And we've missed some. I mean, we clearly missed what
was happening with Toyota in the sudden acceleration. I think
we missed some of the distracted driving, for years--we should
have known sooner about what was going on--because of the issue
of inadequate data collection.
Senator Pryor. Mr. Pedersen, let me ask something that
you--or follow up on something that you mentioned, which is
more of a paperwork issue for the States, and that is kind of
going to a single application, or a streamlined process to
apply for these grants. How much of an impediment is it for the
States to, kind of throughout the year, have applications that
come due at different times in the year, and have to, I guess,
reapply and reapply--oftentimes, the same information, I
assume--but, how much of an impediment is that for the States?
Mr. Pedersen. From a perspective of Governors Highway
Safety Representative, who really is charged with looking at
things more strategically, I'm very frustrated that we're
dealing with one program at a time, in terms of the
applications that are going in, the decisions that are being
made. We really need to be taking a more holistic view of the
decisions that we are making, and doing it all at one time, so
that we can have one single decision that is being made,
regarding resource allocations.
Second, by having many different applications that have to
be submitted, you're just increasing the amount of
administrative work that goes with it, instead of a single
application and dealing with NHTSA one single time. To the
extent that we can be reduce the amount of money that has to be
going to grant administration more resources can be put into
the programs, which will result in greater traffic safety.
Senator Pryor. Let me follow up on one of Senator
Klobuchar's questions earlier. It was kind of a carrot-and-
stick question. It's a classic question, between State and
Federal Government, on, you know, How many incentives should we
have, versus, you know, how many sticks should we have, in the
process? And I know that States--when I hear from States, they
want flexibility, they want, you know, to not be punished if
they don't do something. But, where's the balance there? How do
we--as policymakers here, how do we set this up to where we
find the most effective combination of carrots and sticks?
Mr. Pedersen. Well, again, if we take a performance basis,
we should have a program that is driven by where the data is
telling us we have the greatest problems and where we can get
the greatest results. And there should be more of a
programmatic review of whether the States are allocating the
money where it is most effective.
States have been opposed to sanctions in the past. GHSA is
opposed to sanctions. I can tell you, from the perspective of
the person who has to appear before the legislative committees
to try to convince them to be passing legislation, that we are
far more effective in getting legislation passed when we can be
demonstrating, through data, that we have a problem, and we can
be demonstrating, through research, that there are results,
than when I go in and say, ``We have to do it, because the Feds
will sanction us if we don't do it.'' All that does is create
resentment on the part of the legislative committees at the
State level, and they will not be nearly as cooperative, in
terms of passing legislation that is actually effective.
Ms. Gillan. And, Senator Pryor?
Senator Pryor. Yes----
Ms. Gillan. I just--let me just augment and give my view,
because I do testify before a lot of State legislatures, and--
on this issue--and we have many State legislators, for
instance, that are supporting the STANDUP Act, with the
sanction, because we know that, without that sanction, they
won't be able to get that law through.
I have a sister who is a State Senator in Montana. I've
been pushing her to try to get a primary enforcement seatbelt
law through the Montana State legislature, and she has said to
me privately, and she will say it publicly, ``Show me a
sanction and I'll show you that law.''
So, I think that we can start out with incentives, but
they're--clearly, the history of incentives are not working,
and we need to go to sanctions, especially for laws on primary
enforcement seatbelt law, teens, motorcycle helmets, and drunk
driving, where we are not making the progress that we should.
Senator Pryor. Mr. Strassburger?
Mr. Strassburger. Yes, if I could. I'm--Senator, I'd just
take the middle-of-the-road position, here.
The first primary enforcement law that was adopted was in
1984 in the State of New York. Twenty-five years later, after
considerable amount of effort by my industry--and investment by
my industry--to say nothing of the efforts made by Congress--
we've just this--passed--or, this year, we got over just half
of the States--30. So, clearly, primary enforcement laws are
ripe for a sanction.
To start with incentives first, and then move to sanctions,
is probably the right balance. There is case law, South Dakota
v. Dole, that--and I'm not a lawyer, but my novice reading of
it is, is that--that case concluded, absolutely, it's the--
within the authority of Congress to withhold funds, so long as
they are not punitive. But, the court didn't give any direction
as to what is punitive. So, I'm personally concerned about
loading the States up with numerous sanctions all at once, but
I think, clearly, we should start with primary enforcement
safety belt law, move to drunk driving, and then on to the
others, in priority order, as they are, as we see from the data
is that--what are our biggest problems.
Senator Pryor. Ms. Dean-Mooney, let me ask you about one of
those laws, the open-container law. It's in Section 154 of
Title 23. How is the open-container provision working out there
in the States? My understanding is, there are--I don't have the
number, but not every State has adopted that. And give us your
sense of how the open-container law is working.
Ms. Dean-Mooney. Well, unfortunately, Senator, we don't
have that data with us, but we'll be happy to provide it to you
for the record.
[The information referred to follows:]
Laura Dean-Mooney, MADD National President
Response to Question Posed by Senator Mark Pryor
In 1998, as part of the Transportation Equity Act for the 21st
Century (TEA-21), a Federal program was established to encourage states
to enact laws that prohibit the possession and consumption of alcohol
in motor vehicles. Section 154 of Title 23 of the U.S. Code authorizes
the transfer of a portion of a State's Federal-Aid highway construction
funds if a state does not comply with program requirements for enacting
an open container law.
Each year nearly 11,000 people are killed due to drunk driving, and
350,000 more are injured. A 2002 NHTSA study showed that states without
open container laws experienced significantly greater proportions of
alcohol-involved fatal crashes than states with open container laws.
NHTSA's national surveys on drinking and driving show that a majority
of the public supports open container laws, even in States without such
laws.
To comply with Section 154, a State's open container law must:
Prohibit both possession of any open alcoholic beverage
container and consumption of any alcoholic beverage in a motor
vehicle;
Cover the passenger area of a motor vehicle, including
unlocked glove compartments and any other areas of the vehicle
that are readily accessible to the driver or passengers while
in their seats;
Apply to all open alcoholic beverage containers and
alcoholic beverages, including beer, wine and spirits;
Apply to all vehicle occupants, except for passengers of
vehicles designed and used primarily for the transportation of
people for compensation (such as buses, taxi cabs or
limousines), or the living quarters of motor homes;
Apply to all vehicles on a public highway or right of way
(i.e., on the shoulder) of a public highway; and
Require primary enforcement of the law, rather than
requiring probable cause that another violation had been
committed before allowing enforcement of the open container
law.
States that failed to enact a compliant law by FY 2001 and FY 2002
had 1.5 percent of their highway construction funds transferred to
either the State's 402 program to be used for impaired driving
countermeasures, or the State's Hazard Elimination Program (HEP). The
HEP is now referred to as the Highway Safety Improvement Program
(HSIP). After FY 2002, the percentage of transferred funds increased to
3 percent.
To date, 39 states and the District of Columbia comply with the
law. These states are: Alabama, Arizona, California, Colorado, Florida,
Georgia, Hawaii, Idaho, Illinois, Iowa, Indiana, Kansas, Kentucky,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Texas, Utah, Vermont, Washington
and Wisconsin.
When the open container standard was enacted in 1998, only 13
states and the District of Columbia had compliant laws. The standard
has been effective in encouraging 26 states to enact compliant open
container laws, a very strong outcome. But no State has passed an open
container law since FY 2006. It is unlikely that the remaining 11
states will come into compliance as a result of the standard. Perhaps
one way to strengthen the current program would be to remove the option
to transfer funds to the HSIP, instead only allowing funds to be
transferred to the 402 program for impaired driving countermeasures.
Senator Pryor. OK.
But, I think--isn't fair to say that not all states have
done open-container laws, but--you know, some have and some
haven't, and it's kind of a--my understanding is, it's kind of
a mixed result.
Ms. Dean-Mooney. That's correct. There is a mixed result. I
mean, in Texas, where I live, there are still drive-thru liquor
stores, you can pull right up and--although they have an open-
container law in Texas, they're still selling by the can--and
you can take that in your car, under the assumption that you're
not supposed to open it while you're in your vehicle. We have
some work to do there.
Senator Pryor. Right.
Well, really, I have other questions that I may submit for
the record, because, again, some of this is detailed, about
some of the specific programs and some of your specifics in
your testimony. But, I think what I'd like to do is--unless
someone has something else to add before we close here, I'd
like to go on to the third panel.
So, let me just say thank you very much for your time and
participation. I'm sorry we had a vote in the middle of your
panel. But, very helpful, and we appreciate you all.
And again, we're going to leave the record open for a
couple weeks, and you'll probably get some follow-up questions
from the staff or from individual offices on this.
So, thank you very much for being here.
Senator Pryor. What I'm going to do is go ahead and call up
the third panel. And I know that the Committee staff will want
to swap out the nameplates and reset the microphones, et
cetera, so I'll go ahead and just very briefly mention our
three witnesses, and--without giving a lot of background on
them, but just very briefly mention them.
First, we have Mr. Ethan Ruby. He's from New York, New
York. And second, we will have Mr. Ira Leesfield, he's past
President of the Academy of Florida Trial Lawyers. And third,
we will have Mr. Thomas M. James, President and CEO of the
Truck Renting and Leasing Association.
So, as soon as they get set and all the microphones are set
up, we'll turn it over to Mr. Ruby. But, we will----
Before I get started, let me go ahead and say that Senator
Hutchison has requested that these letters from International
Trucks of Houston and Rush Enterprises--looks like ``in San
Antonio''--be placed in the record. And so, without objection,
I'll do that--am glad to do that.
[The information referred to follows:]
Rush Enterprises,
New Braunfels, TX;
San Antonio, TX, September 22, 2010
Hon. Kay Bailey Hutchison,
Ranking Member,
Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Ranking Member Hutchison:
I am writing to request your support for the preservation of the
Federal law prohibiting states from imposing vicarious liability on
owners of rented and leased vehicles, codified at 49 U.S.C. 30106 and
commonly known as the Graves Law. I very much appreciate your support
for the passage of this law in 2005. Unfortunately, there have already
been multiple attempts during this Congress to repeal this common sense
law, and turn back the clock to reinstate antiquated vicarious
liability laws that hold non-negligent owners of rented and leased
vehicles liable for the actions of their customers operating the
vehicles.
Preservation of this vicarious liability uniformity law is critical
to the success of Texas-based businesses like Rush Enterprises. The
constitutionality and preemptive authority of the Graves Law, has been
affirmed by the U.S. Court of Appeals and U.S. District Court, as well
as the highest courts in several states, including the Minnesota
Supreme Court and Florida Supreme Court. Especially in this economy,
repeal of the Graves Law could have a devastating impact on both small
and large businesses.
Rush Enterprises operates the largest network of heavy- and medium-
duty truck dealerships in North America in addition to its truck
leasing operations. Rush Enterprises has approximately 2950 employees
in 68 locations, and owns approximately 3000 trucks. Some of the
businesses who lease trucks from Rush Enterprises include Pepsi/
Tropicana, Costco, International Paper, and Boise Cascade.
Rush's leased trucks are being used in interstate commerce
throughout the United States. If the Federal vicarious liability
uniformity law were to be repealed, it would subject Rush Enterprises
to liability for injury and property damage resulting from the actions
of negligent drivers solely because we own the trucks. Repealing the
Graves Law would immediately restore vicarious liability laws in states
such as New York, Maine, Connecticut, Rhode Island, Minnesota, and
Florida, and Rush Enterprises would be exposed to liability there even
in the absence of any negligence on our part. Even if we are not
subject to a lawsuit, the return of vicarious liability laws would lead
to an increase in insurance costs, rental and lease costs, and an
overall increase in the cost of commercial transportation. Ultimately,
it is the consumer who suffers through higher costs of goods throughout
the Nation.
I understand that your Committee will be holding a hearing on
vicarious liability and the Graves Law on September 28. On behalf of
Rush Enterprises, I would greatly appreciate your help in preserving
the vicarious liability uniformity law if the issue of repeal should be
brought up in the Senate during the remainder of this Congressional
Session. Thank you for your consideration, and please call me if you
would like to discuss this issue and its critical importance to my
Texas business.
Best regards,
W. Marvin Rush,
Chairman,
Rush Enterprises, Inc.
______
International Trucks of Houston
fka Olympic International Trucks
Houston, TX, September 22, 2010
Hon. Kay Bailey Hutchison,
Ranking Member,
Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Ranking Member Hutchison:
I am writing to request your support for the preservation of the
Federal law prohibiting states from imposing vicarious liability on
owners of rented and leased vehicles, codified at 49 U.S.C. 30106 and
commonly known as the Graves Law. I very much appreciate your support
for the passage of this law in 2005. Unfortunately, there have already
been multiple attempts during this Congress to repeal this common sense
law, and turn back the clock to reinstate antiquated vicarious
liability laws that hold non-negligent owners of rented and leased
vehicles liable for the actions of their customers operating the
vehicles.
Preservation of this vicarious liability uniformity law is critical
to the success of Texas-based businesses like Kyrish Truck Centers, and
the leasing business which is part of that network of dealerships,
Kyrish Idealease. The constitutionality and preemptive authority of the
Graves Law, has been affirmed by the U.S. Court of Appeals and U.S.
District Court, as well as the highest courts in several states,
including the Minnesota Supreme Court and Florida Supreme Court.
Especially in this economy, repeal of the Graves Law could have a
devastating impact on both small and large businesses.
Kyrish Truck Centers operates one of the largest networks of heavy-
and medium-duty truck dealerships in the U.S. in addition to its truck
leasing operations. Kyrish Truck Centers and Kyrish Idealease together
have approximately 550 employees in 11 locations, and owns 1857 trucks.
Some of the businesses who lease trucks from Kyrish Idealease include
food companies, paper companies, furniture companies, building material
companies, medical waste companies, chemical companies, beverage
companies, floral companies and on and on.
Kyrish Idealease's leased trucks are being used in interstate
commerce throughout the United States. If the Federal vicarious
liability uniformity law were to be repealed, it would subject Kyrish
Idealease to liability for injury and property damage resulting from
the actions of negligent drivers solely because we own the trucks.
Repealing the Graves Law would immediately restore vicarious liability
laws in states such as New York, Maine, Connecticut, Rhode Island,
Minnesota, and Florida, and Kyrish Idealease would be exposed to
liability there even in the absence of any negligence on our part. Even
if we are not subject to a lawsuit, the return of vicarious liability
laws would lead to an increase in insurance costs, rental and lease
costs, and an overall increase in the cost of commercial
transportation. Ultimately, it is the consumer who suffers through
higher costs of goods throughout the Nation.
I understand that your Committee will be holding a hearing on
vicarious liability and the Graves Law on September 28. On behalf of
Kyrish Truck Centers and Kyrish Idealease, I would greatly appreciate
your help in preserving the vicarious liability uniformity law if the
issue of repeal should be brought up in the Senate during the remainder
of this Congressional Session. Thank you for your consideration, and
please call me if you would like to discuss this issue and its critical
importance to my Texas business.
Sincerely,
E.A. Kyrish,
President.
Senator Pryor. Mr. Ruby, you want to go ahead for us?
Thank you. Thanks for being here.
STATEMENT OF ETHAN RUBY,
ACCIDENT VICTIM, NEW YORK, NEW YORK
Mr. Ruby. Thank you very much, and it's an honor to be here
and speaking on behalf of my fellow taxpaying Americans. I
thank you for that opportunity.
My name is Ethan Ruby. On November 29, 2000, I was a
pedestrian, in a crosswalk in New York City, walking with the
marked cross--with a white ``Walk'' sign, and a driver, owned
by Budget Rent A Car, ran a red light, striking a van in that
intersection, and that car had the right-of-way. The ensuing
collision, the van and other car careened into me, which
resulted in me being immediately and irreparably paralyzed. I
was 25 years old then.
Fortunately for me, because I lived in New York, whose laws
at that time held the rental car companies accountable for the
injuries caused by their negligent drivers. That was before the
Graves Amendment. I was able to win compensation from Budget
Rent A Car, and I've had a fighting chance to regain my life to
the best of my abilities.
I'm here today to ask that Congress repeal the Graves
Amendment. I speak today on behalf of tomorrow's accident
victims, who will suffer catastrophic injuries, but lack the
financial capacity to restore and improve the quality of their
lives. If the Graves Amendment is not repealed, many of those
victims are likely to lack the--likely to lack--access the
essential medical care, replace their lost earnings, and
provide them with a reasonable compensation for their
suffering.
In my case, you should know that the driver of the Rent A
Car had warrants out for his arrest for unpaid speeding tickets
in other States. However, Budget gave this driver a car without
checking the validity of his driver's license or his driving
record.
Let me describe to you briefly, what the Budget Rent A Car
driver did to me and what my life has been like since the
accident.
In the aftermath of the accident, I was taken by ambulance
to a local hospital, where I received emergency care and
underwent major surgery to stabilize my condition. It was
immediately clear that I would never walk again. I sustained an
irreversible spinal cord injury. I could not move my legs, I
was in intense pain, and I was more prepared to die than to
live. Not only was I paralyzed, but I lost control of my
bladder and bowel function; normal sexual function and capacity
was also lost. Nothing has changed and nothing will change.
Months of incredibly difficult, arduous, and expensive
rehabilitation followed my emergency and intensive care at the
hospital. The struggle to regain the strength and ability just
to learn to sit upright, using my head to balance, as I had
lost all control of my chest and body, and then learn to be
able to live from the place of a chair, was a monumental
change. A wheelchair was going to be my way of moving from
place to place for the rest of my life. For those who are able
to walk normally, it may be hard to imagine the efforts it
takes to learn to transition from walking to a wheelchair.
Also, once you're confined to a wheelchair, you'll find that
life does not accommodate to you, you are always--have to
accommodate to that and the seeming insurmountable obstacles
that come each and every day.
The cost of my medical and rehabilitation care has been
astronomical. Once my limited private and personal medical
insurance were exhausted, I was forced to use my savings to
meet those expensive needs. And I relied on my family for as
much help as possible.
Future medical, surgical, and rehabilitation care will also
be very costly. My doctors predicted that the medical
complication as I go through life will only increase, to avoid
the inevitable infections and cascade of problems that they
will cause. As you probably recall, Christopher Reeves died
from complications of a spinal cord injury.
Before the accident, I was strong, healthy, athletic,
running my own securities day-trading company, making a good
living, and my future looked bright. Thankfully, I had a team
of dedicated lawyers, led by Marc Moller and David Cook, of
Kreindler & Kreindler, who prepared my case and represented me
in a lengthy and hard-fought battle against Budget Rent A Car,
who used their massive corporate profits to hire the best
lawyers they could to protect those profits.
After years of litigation, just prior to jury selection,
Budget conceded liability, leading the quantum of damages to be
determined by the jury. Once the elements of damage were
sought--one of the elements of damages were sought--to be able
to harvest for--sperm for potential in vitro fertilization,
should I be able to, one day, marry. Thankfully, I now share
the joy of a 20-month old son with my wife, who I was lucky to
be able to marry, only because I had the means to recover after
this injury.
Despite all my pain, suffering, and loss, I was one of the
lucky ones. My ordeal has brought me into contact with many
spinal-cord-injury victims who I then try to--who I try to
encourage to make the best of their lives, despite their
circumstances. Their lives are incredibly hard. I know, from
past experiences that they have shared with me, that their
quality of life is directly influenced by the amount of money
they have, or lack thereof. Without the money to obtain
adequate care, replace the lost income, spinal-cord-injury
victims' lives are victimized twice; first, by the accident
caused by the injury, and second, with painful certainty that
they will not have the financial resources to reach the highest
level of recovery they might be able to achieve.
The reason the Graves Amendment has such a draconian and
unfair impact is that it shifts the burden of loss from the
profit-making rental companies and their insurers to the
potential victims of their negligent drivers. It is simply
unfair to make the innocent victims of accidents protect rental
companies' coffers. Moreover, to the extent that the victims
then need help, any limited relief most likely will have to
come from the State; that means taxpayers ultimately foot the
bill if victims cannot. That is what the Graves Amendment has
done, and that is why I'm here to ask that Congress repeal it.
Thank you for your time.
[The prepared statement of Mr. Ruby follows:]
Prepared Statement of Ethan Ruby, Accident Victim, New York, New York
Mr. Chairman:
My name is Ethan Ruby. On November 29, 2000, I was a pedestrian
walking across a street in New York City within the marked pedestrian
crosswalk with the right-of-way when a rental car owned by Budget Rent-
A-Car ran a red light and struck a van in that intersection that had
the right-of-way. In the ensuing collision, the van careened into the
crosswalk and struck me, which resulted in my being immediately and
irreparably paralyzed. I was then 25 years old.
Fortunately for me, because I live in New York whose law held
rental car companies as vehicle owners responsible for injuries caused
by their negligent drivers. Before the Graves Amendment became law, I
was able to win compensation from Budget Rent-A-Car and have a fighting
chance to make the best of my compromised life.
I am here today to ask that Congress repeal the Graves Amendment.
I speak on behalf of tomorrow's accident victims who will suffer
catastrophic injuries, but lack the financial capacity to restore and
improve the quality of their lives if commercial rental car companies
are insulated from liability for the negligence of those who rent their
vehicles. If the Graves Amendment is not repealed, many of those
victims are likely to lack access to essential medical care, replace
their lost earnings potential, and provide them with reasonable
compensation for their suffering.
In my case, you should know that the driver of the rented car had
warrants out for his arrest for unpaid speeding tickets when he
commandeered the Budget car he was driving. To the best of my
knowledge, nothing was done by Budget to check the validity of renters'
driving records prior to entrusting their vehicle to them or even to
determine whether their drivers licenses were in good standing. All a
driver had to do was present a driver's license to a rental car
agency's desk clerk and a credit card and he or she would be given a
car. No questions were asked as to whether the driver had any other
insurance in effect that would provide automobile liability protection
to an innocent victim of an accident. Drivers were furthermore given
the option of purchasing or declining automobile liability insurance
coverage through the rental car company.
Let me describe for you what Budget Rent-A-Car's driver did to me
and what my life has been like in the nearly 10 years since my
accident.
In the aftermath of the accident, I was taken by ambulance to a
local hospital in New York where I received emergency care and
underwent major surgery to stabilize my condition. It was immediately
clear that I would never walk again. I sustained an irreversible spinal
cord injury. I could not move my legs, was in intense pain, and was
more prepared to die than to live. Not only was I paralyzed, I lost
control of my bladder and bowel function. Normal sexual function and
capacity was also lost. Nothing has changed. Nothing will change.
Months of incredibly difficult and arduous rehabilitation followed
my emergency and intensive care in the hospital. The struggle to gain
the strength and ability just to learn to sit upright using my head to
balance me (as I had lost all control of my body from the chest down)
and then to learn and be able to move from a stable chair or bed into a
wheelchair was a monumental challenge. A wheelchair was going to be my
way of moving from place-to-place for the rest of my life. For those
who are able to walk normally it may be hard to imagine the effort it
takes to learn how to transition from walking to a wheelchair. Also,
once you are confined to a wheelchair, you find that life does not
accommodate you and there are constant, seemingly insurmountable
obstacles to overcome to adapt to your new condition.
The cost of my medical and rehabilitation care was astronomical.
Once my limited private and personal medical insurance was exhausted, I
was forced to use savings to meet many of the expenses, and I relied on
my family for as much help as they were able to provide. Future
medical, surgical and rehabilitation care will likewise be very costly.
My doctors predicted medical complications as I go through life.
They are right. I must be diligent to avoid infection and the cascade
of problems they cause.
Before the accident I was strong, healthy, athletic, running my own
securities day trading business and making a good living. The future
looked bright.
Thankfully, I had a team of dedicated lawyers led by Marc S. Moller
and David C. Cook of Kreindler & Kreindler who prepared my case and
represented me in a lengthy and hard fought trial against Budget Rent-
A-Car. After years of litigation, just prior to jury selection, Budget
conceded liability leaving the quantum of damages to be determined by
the jury. The jury returned a substantial verdict in December 2004.
With minor adjustment after the defendant sought a reduction in the
verdict, it was upheld on appeal. (Attached to the statement are two
opinions for the trial and Appellate Court in my case and the brief
which explains our position in detail.) One of the elements of damages
we sought was money to harvest sperm to be available for in vitro
fertilization were I able to marry. I now share the joy of a young son,
20-months-old, with my beautiful wife who I married after I was injured
and progressed to my present level of recovery.
I was lucky!
My ordeal has brought me into contact with many spinal cord injury
victims who I try to encourage to make the best of their lives despite
their circumstances. Their lives are incredibly hard. I know from the
experiences they have shared with me that the quality of their lives is
directly influenced by the amount of money they have, or lack, to gain
the best medical care possible and to make the adjustments that will
make their lives livable. Without the money to obtain adequate care and
replace lost income, spinal cord accident victims' lives are victimized
twice: first by the accident that caused the injury and second, with
painful certainly, that they will not have the financial resources to
reach the highest level of recovery their condition allows nor
experience any realistic enjoyable quality of life.
The reason the Graves Amendment has such a draconian and unfair
impact is that is shifts the burden of loss from the profit-making
rental car companies and their insurers who have the capacity to
protect their economic interest, to the potential victims of their
negligent drivers. It simply is unfair to make the innocent victims of
accidents protect rental car company coffers. Moreover, to the extent
that victims then need help, any limited relief most likely has to come
from the state. Taxpayers ultimately foot the bill if victims cannot.
That is what the Graves Amendment has done.
The Graves Amendment should be repealed.
Senator Pryor. Thank you.
Mr. Leesfield.
STATEMENT OF IRA H. LEESFIELD, PAST PRESIDENT,
ACADEMY OF FLORIDA TRIAL LAWYERS
Mr. Leesfield. Thank you, Mr. Chairman. And I want to thank
Senator Nelson for his very kind remarks at the beginning of
the session.
I am here to speak on why the Graves Amendment is a really
bad idea, an idea that was not thought out and not well
conceived.
Now, Mr. Chairman, the Graves Amendment was not a bad idea
for the major rental car companies of the United States, but it
was a very bad idea for the citizens of the United States, and
a very bad idea for States' rights, and a very bad idea for the
U.S., local, and State governments. So, I'd like to address
each one of those in my brief time.
We've heard from a citizen--we've heard from Ethan--but his
story is not alone, and it's not isolated. The Graves
Amendment, passed in 2005, shifted the responsibility from
corporate rental car companies to governments, local hospitals,
local healthcare providers, and anybody who would take--pick up
the tab for somebody injured by a rental car company.
Now, in real life, Mr. Chairman, may I tell you how this
really worked? Any State, such as Florida, where I'm from, but
any State had the right to pass a State law. Florida had State
laws which said that rental car companies were responsible, up
to a certain amount. For the history of the State of Florida,
as a matter of States' rights, Floridians could recover from
corporate wrongdoers, including rental car companies.
Now, in 1999, a Republican Governor, a Republican Senate
and a Republican House in Florida, as a matter of States'
rights, limited Floridians' recoveries but did not eliminate
those recoveries; it merely limited them. And that limitation
was a maximum recovery of $100,000 for economic loss--for
noneconomic loss, and $500,000 for economic loss.
That now has been totally eliminated by Graves. What Graves
has done is taken away the States' rights to be the
experimental place for individuals who are injured. In Florida,
for instance, we have 8.6 million foreign visitors a year, as
Senator Nelson alluded to, and we have 76 million domestic
visitors. Those people, whether they come from Asia, South
America, the Orient, wherever, come into Florida. There is no
requirement that they have insurance.
They rent a car. There's no requirement that they have
financial responsibility. And if they injure someone, like
Ethan or anybody else, they go back to their home country,
their home venue, and we are left holding the bag. The ``we''
being the taxpayers. Because when people are injured and there
is no corporate responsibility, what happens is, the taxpayers,
either the local counties, the States, or the Federal
Government, pick up the tab. Someone is going to pay for the
medical care. If Nathan--Ethan did not get a fair recovery, he
would have been--his medical care would have been provided for
by the taxpayers of New York or elsewhere.
So, what Graves does, really--it's a good idea for the
rental companies. There's no--this is a--Enterprise, for
instance, is a 10.1-billion-dollar-a-year--billion-dollar-a-
year--company. Enterprise has bought Alamo. If the Chair and
the Committee look at the submission of the rental car
industry, you do not see as one of their sponsors, on page
seven, you do not see the mom-and-pop operation that they claim
to be protecting in a pro-competitive way; you only see the big
five. You only see the largest rental car companies, who,
candidly, are just making more profit on an insurable loss.
If you go to page 10 of their ``Positive Results'': Since
the passage of Graves in 2005, the courts have paid great
deference, as they should, to Congress. Now, the courts don't
know that Graves never got a hearing in the Senate, that there
was 20 minutes of discussion about Graves, 5 minutes from
Congressman Nadler, 5 minutes from Mr. Graves, and 10 minutes
from Mr. Conyers; that was the end of the discussion. They
don't know that. The courts say, ``We're going to follow what
the Congress has done.''
So, on page 10, when the industry lists their positive
results--and they call them that: ``positive results''--they
include Ethan--they'd like to include Ethan, but they didn't,
because his accident happened beforehand--as one of the
positive results. In other words, ``We, the rental car
industry, are not going to pay for the injury and the damage
and the loss that we caused by not checking a driver's license,
by not insisting on insurance, by not checking the driver's
record.'' All you check--go, today, to a rental-car stand at
any airport or anywhere else, and all that gets checked is your
credit card and to see if you submit a driver's license. We
never go beyond what that driver's license says about the
drinking record, the safety record of the driver.
So, Mr. Chairman, you opened this session with the impact--
your words were ``the impact on highway safety.'' I'm here to
tell you that, when you don't have corporate responsibility,
you don't have highway safety. And what Graves has done, it has
eliminated--not modified, as each State has the right to do,
not fine-tuned, not somewhat limited--it has eliminated
corporate responsibility in the rental-car sphere, a sphere
that 15 States plus the District of Columbia enforced, in their
own way, in their own legislature, and with their own common
law.
So, we don't want any more ``positive results.'' We want
Ethan to be able--if he's wrongly injured, we want him to be
able to go to court. Graves and the industry, the five giants
of the industry, have eliminated a right, in an uncareful,
rushed way in 2005, and that--it is now time to turn back the
clock to the right way and turn back the clock to true justice.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Leesfield follows:]
Prepared Statement of Ira H. Leesfield, Past President,
Academy of Florida Trial Lawyers
In Florida, District of Columbia, and fourteen other states,
including New York and California, vicarious liability has been part of
legal jurisprudence, dating back for almost 90 years. As enunciated by
the Florida Supreme Court in Southern Cotton Oil Co. v. Anderson, 80
Fla. 44, 86 So. 629 (1920), the owner of an automobile ``. . . may not
deliver it over to anyone he pleases and not be responsible,'' Southern
Cotton. Vicarious liability, as recognized in 1920, was extended to
automobile lessors by the Florida Supreme Court in 1947. Lynch v.
Walker, 31 So. 2d 268 (Fla. 1947), and again in Susco Car Rental System
v. Leonard, 112 So. 2d 832 (Fla. 1959).
Fifteen of the similarly situated states developed, either by
statute or common law, a mechanism for protecting its citizens and
visitors from the life changing negligence of those behind the wheel of
a vehicle entrusted to them.\1\
---------------------------------------------------------------------------
\1\ List of States--attached.
---------------------------------------------------------------------------
Not surprisingly, the importance of vicarious liability to the
modern proliferation of the rental car industry coincided with a huge
number of U.S. and foreign visitors coming into jurisdictions, doing
harm and leaving. For instance, the Florida Chamber of Commerce
recently reported over 82 million people visit Florida every year, and
the numbers for California and New York are similar.
Necessarily, these jurisdictions shifted to vehicle owners,
including for profit rental companies, accountability for the
destruction of mayhem left behind when rental vehicles caused life-
changing injuries and deaths within their borders.
In 2004, ``out of the blue'' or more understandably, out of
Missouri, the home of Enterprise Rental Cars, came the notion that the
rental car industry should be granted full immunity from any damage
caused by a driver who they entrusted their vehicle to for profit. In
other words, no matter what the driving record or availability of
insurance of the rental car driver, the rental car industry was to be
completely immune and shielded from damages to innocent bystanders.
This would, and did, wipe out any notion of rental car responsibility.
Rental car companies tried to repeal vicarious liability statutes,
state-by-state, particularly, New York. They were not successful
inasmuch as the law-making bodies of these states felt it was necessary
to incentivize safety by making profitable companies, who rent to
negligent drivers, responsible for the life changing injuries to
innocent parties. The industry then changed their focus from state
legislature to Congress. In 2004, during the debate of the highway
reauthorization bill, SAFETEA-LU, Representative Graves (R-MO)
introduced an amendment specifically and completely abolishing rental
vicarious liability under any state law. There was never any committee
hearing on the issue. Nevertheless, the amendment failed in the
Committee. In late 2004, Representative Graves brought the amendment up
during the House floor debate, and the amendment failed by a voice
vote. He then introduced the amendment again in January 2005, and asked
for a recorded vote, at which time the amendment narrowly passed with
bipartisan support and opposition. The amendment was never introduced
in the Senate. Despite the objections of numerous groups, including the
National Conference of State Legislatures, the amendment became part of
the final bill language and is now codified in the U.S. Code.\2\
---------------------------------------------------------------------------
\2\ 49 U.S.C. 30106 (2005).
---------------------------------------------------------------------------
In the 5 years since the passage of the Graves' Amendment (as
contrasted with the long history of state vicarious liability laws),
Federal, state, county and local governments have been picking up the
tabs and subsidizing the rental car industry by paying for enormous
medical expenses and social services provided to those injured, maimed
or killed by rental car customers. Annually, in Florida, there are
thousands of examples, where visitors from overseas, or throughout the
United States fly to Orlando, rent a car, and for a variety of reasons,
cause egregious injuries to a Florida family or even another family
visiting from out-of-state.\3\ At the point of rental, there is no
requirement to produce insurance, a valid driver's license, check a
driving record, or even familiarize the renter/user with the rules of
the road. It is a free for all! The rental car industry only requires
verification of the credit card to protect themselves, often leaving
the innocent state resident without any recourse to injury or death.
---------------------------------------------------------------------------
\3\ Some of the more telling cases include visitors from other
jurisdictions with completely different driving customs, driving on the
wrong side of the road and killing innocent pedestrians.
---------------------------------------------------------------------------
The net effect and history of the law in Florida and other states
has been unnecessarily tragic. For instance, the Florida legislature in
1999, as part of a sweeping state tort reform statute, modified, but
did not eliminate, vicarious liability for rental car companies. A
Florida House and Senate controlled by Republicans and a Florida
Republican Governor Jeb Bush, determined, as a matter of state's
rights, that at least the economic interest of the innocent and injured
Floridian would be recognized. In 1999, Florida passed
324.021(9)(b)(2), which modified vicarious liability allowing the
injured party to recover $500,000 in special damages, which would pay
only for medical expenses and lost wages and an additional $100,000 for
pain, disfigurement and loss of quality of life. This carefully crafted
language is what the Florida legislature determined was best for the
people and the State of Florida.
Inadequate as that recovery may seem, that was the law of Florida
until the rental car industry opted for complete abolition on the
Federal law. The 1999 Florida law, before Graves, really served as a
conduit allowing Federal, State, county and local hospitals and
healthcare providers to be paid by the rental car malfeasant. Part of
the burden remained with the rental car industry as a matter of public
policy and financial responsibility. The most severely injured or
killed citizen could get, even for a lifetime of pain and suffering,
only $100,000 from the rental car company. Now, under the present
Graves' Amendment, there is no recourse whatsoever. The rental car
industry obtained government subsidy for damage caused by their
vehicles. All the while, insurance coverage to the rental car industry
has been available.
The price is paid by innocent residents of states with large
visiting populations, and ultimately, paid for by taxpayers and medical
facilities. The rental car customer, whether from Sweden or Seattle,
returns the car, leaving the carnage on the road and drives off, scot-
free. Under the Graves' Amendment, a rental car company that rents to
these damaging drivers, without checking for insurance, has complete
immunity. Innocent victims and their governments are left holding the
bag. That bag is paid for by Medicare, Medicaid, Social Security, and/
or state and local healthcare providers.
The Graves' Amendment should be repealed under our system of
federalism and state legislatures should be permitted to govern
legislation uniquely evaluated by state legislatures.
Attachment
Vicarious Liability State Statutes *
Updated February 2009
------------------------------------------------------------------------
State Type of Liability Case Citation or Statute
------------------------------------------------------------------------
Arizona Unlimited Liability The owner of a motor vehicle who
rents it to another without a
driver, other than as a bona fide
transaction involving the sale of
the motor vehicle, without having
procured the required public
liability insurance or without
qualifying as a self-insurer
pursuant to 28-4007 with at
least the minimum limits
prescribed in subsection A of
this section [$15,000 for one
vehicle; $10,000 for each
additional motor vehicle. Proof
of the ability to respond in
damages in the amount of one
hundred thousand dollars is
sufficient for any number of
motor vehicles] is jointly and
severally liable with the renter
for damage caused by the
negligence of the renter
operating the motor vehicle.
Ariz. Rev. Stat. 28-
2166(A),(F).
------------------------------------------------------------------------
California Limited Liability Every owner of a motor vehicle is
liable and responsible for death
or injury to person or property
resulting from a negligent or
wrongful act or omission in the
operation of the motor vehicle,
in the business of the owner or
otherwise, by any person using or
operating the same with the
permission, express or implied,
of the owner. Cal. Veh. Code
17150.
The liability of an owner, bailee
of an owner, or personal
representative of a decedent
imposed by this chapter and not
arising through the relationship
of principal and agent or master
and servant is limited to the
amount of fifteen thousand
dollars ($15,000) for the death
of or injury to one person in any
one accident and, subject to the
limit as to one person, is
limited to the amount of thirty
thousand dollars ($30,000) for
the death of or injury to more
than one person in any one
accident and is limited to the
amount of five thousand dollars
($5,000) for damage to property
of others in any one accident.
Cal. Veh. Code 17151.
------------------------------------------------------------------------
Connecticu Unlimited Liability Any person renting or leasing to
t another any motor vehicle owned
by him shall be liable for any
damage to any person or property
caused by the operation of such
motor vehicle while so rented or
leased, to the same extent as the
operator would have been liable
if he had also been the owner.
Conn. Gen. Stat. 14-154a(a).
------------------------------------------------------------------------
Delaware Unlimited Liability The owner of a motor vehicle who
is engaged in the business of
renting motor vehicles without
drivers, who rents any such
vehicle without a driver to
another, otherwise than as a part
of a bona fide transaction
involving the sale of such motor
vehicle, and permits the renter
to operate the vehicle upon the
highways and who does not carry
or cause to be carried public
liability insurance in an
insurance company or companies
approved by the Insurance
Commissioner of this State
insuring the renter against
liability arising out of the
renter's negligence in the
operation of such rented vehicle
in limits of not less than
$10,000 for anyone killed or
injured and $20,000 for any
number more than 1 injured or
killed in any 1 accident, and
against liability of the renter
for property damage in the limit
of not less than $5,000 for 1
accident, shall be jointly and
severally liable with the renter
for any damages caused by the
negligence of the latter in
operating the vehicle and for any
damages caused by the negligence
of renting the vehicle from the
owner. Del. Code Ann. tit. 21,
6102(a).
------------------------------------------------------------------------
D.C. Unlimited Liability Whenever any motor vehicle, after
the passage of this subchapter,
shall be operated upon the public
highways of the District of
Columbia by any person other than
the owner, with the consent of
the owner, express or implied,
the operator thereof shall in
case of accident, be deemed to be
the agent of the owner of such
motor vehicle, and the proof of
the ownership of said motor
vehicle shall be prima facie
evidence that such person
operated said motor vehicle with
the consent of the owner. D.C.
Code Ann. 50-1301.08.
------------------------------------------------------------------------
Florida Limited Liability Common law doctrine of Dangerous
Instrumentality. Limited by Fla.
Stat. 324.021 which limits car
rental company vicarious
liability to $100,000 per person
and up to $300,000 per incident
for bodily injury and up to
$50,000 for property damage. If
the lessee or the operator of the
motor vehicle is uninsured or has
any insurance with limits less
than $500,000 combined property
damage and bodily injury
liability, the lessor shall be
liable for up to an additional
$500,000 in economic damages only
arising out of the use of the
motor vehicle. The additional
specified liability of the lessor
for economic damages shall be
reduced by amounts actually
recovered from the lessee, from
the operator, and from any
insurance or self-insurance
covering the lessee or operator.
324.021(9)(b)(2).
------------------------------------------------------------------------
Idaho Limited Liability (1) Every owner of a motor vehicle
is liable and responsible for the
death of or injury to a person or
property resulting from
negligence in the operation of
his motor vehicle, in the
business of the owner or
otherwise, by any person using or
operating the vehicle with the
permission, expressed or implied,
of the owner, and the negligence
of the person shall be imputed to
the owner for all purposes of
civil damages. (2) The liability
of an owner for imputed
negligence imposed by the
provisions of this section and
not arising through the
relationship of principal and
agent or master and servant is
limited to the amounts set forth
under ``proof of financial
responsibility.'' Idaho Code 49-
2417
``Proof of financial
responsibility'' means proof of
ability to respond in damages for
liability, on account of
accidents occurring subsequent to
the effective date of the proof,
arising out of the ownership,
maintenance or use of a motor
vehicle, in the amount of twenty-
five thousand dollars ($25,000)
because of bodily injury to or
death of one (1) person in any
one (1) accident, and, subject to
the limit for one (1) person, in
the amount of fifty thousand
dollars ($50,000) because of
bodily injury to or death of two
(2) or more persons in any one
(1) accident, and in the amount
of fifteen thousand dollars
($15,000) because of injury to or
destruction of property of others
in any one (1) accident. Idaho
Code 49-117
------------------------------------------------------------------------
Iowa Unlimited Liability In all cases where damage is done
by any motor vehicle by reason of
negligence of the driver, and
driven with the consent of the
owner, the owner of the motor
vehicle shall be liable for such
damage. Iowa Code 321.493
------------------------------------------------------------------------
Maine Unlimited Liability An owner engaged in the business
of renting motor vehicles, with
or without drivers, who rents a
vehicle to another for use on a
public way, is jointly and
severally liable with the renter
for damage caused by the
negligence of the renter in
operating the vehicle and for any
damages caused by the negligence
of a person operating the vehicle
by or with the permission of the
renter. 29-A Me. Rev. Stat.
1652 Limitation: This section
does not give a passenger in a
rented vehicle a right of action
against the owner. Also, this
section does not affect
contributory negligence as a
defense.
------------------------------------------------------------------------
Michigan Limited Liability This section shall not be
construed to limit the right of a
person to bring a civil action
for damages for injuries to
either person or property
resulting from a violation of
this act by the owner or operator
of a motor vehicle or his or her
agent or servant. The owner of a
motor vehicle is liable for an
injury caused by the negligent
operation of the motor vehicle .
. . The owner is not liable
unless the motor vehicle is being
driven with his or her express or
implied consent or knowledge. It
is presumed that the motor
vehicle is being driven with the
knowledge and consent of the
owner if it is driven at the time
of the injury by his or her
spouse, father, mother, brother,
sister, son, daughter, or other
immediate member of the family.
Mich. Comp. Laws 257.401(1). As
used in this chapter, ``owner''
does not include a person engaged
in the business of leasing motor
vehicles who is the lessor of a
motor vehicle pursuant to a lease
providing for the use of the
motor vehicle by the lessee for a
period that is greater than 30
days. Mich. Comp. Laws
257.401a. A person engaged in the
business of leasing motor
vehicles who is the lessor of a
motor vehicle under a lease
providing for the use of the
motor vehicle by the lessee for a
period of 30 days or less is
liable for an injury caused by
the negligent operation of the
leased motor vehicle only if the
injury occurred while the leased
motor vehicle was being operated
by an authorized driver under the
lease agreement or by the
lessee's spouse, father, mother,
brother, sister, son, daughter,
or other immediate family member.
Unless the lessor, or his or her
agent, was negligent in the
leasing of the motor vehicle, the
lessor's liability under this
subsection is limited to
$20,000.00 because of bodily
injury to or death of 1 person in
any 1 accident and $40,000.00
because of bodily injury to or
death of 2 or more persons in any
1 accident. Mich. Comp. Laws
257.401(3).
------------------------------------------------------------------------
Minnesota Limited Liability Whenever any motor vehicle shall
be operated within this state, by
any person other than the owner,
with the consent of the owner,
express or implied, the operator
thereof shall in case of
accident, be deemed the agent of
the owner of such motor vehicle
in the operation thereof. Minn.
Stat. 170.54. Notwithstanding
section 170.54, an owner of a
rented motor vehicle is not
vicariously liable or legal
damages resulting from the
operation of the rented motor
vehicle in an amount greater than
$100,000 because of bodily injury
to one person in any one accident
and, subject to the limit for one
person, $300,000 because of
injury to two or more persons in
any one accident, and $50,000
because of injury to or
destruction of property of others
in any one accident, if the owner
of the rented motor vehicle has
in effect, at the time of the
accident, a policy of insurance
or self-insurance, as provided in
section 65B.48, subdivision 3,
covering losses up to at least
the amounts set forth in this
paragraph. Nothing in this
paragraph alters or affects the
obligations of an owner of a
rented motor vehicle to comply
with the requirements of
compulsory insurance through a
policy of insurance as provided
in section 65B.48, subdivision 3;
or through self-insurance as
provided in section 65B.48,
subdivision 3; or with the
obligations arising from section
72A.125 for products sold in
conjunction with the rental of a
motor vehicle. Nothing in this
paragraph alters or affects
liability, other than vicarious
liability, of an owner of a
rented motor vehicle. Minn. Stat.
65B.49, subd. 5(h)(i)(2).
------------------------------------------------------------------------
Nevada Limited Liability The short-term lessor of a motor
vehicle who permits the short-
term lessee to operate the
vehicle upon the highways, and
who has not complied with NRS
482.295 insuring or otherwise
covering the short-term lessee
against liability arising out of
his negligence in the operation
of the rented vehicle in limits
of not less than $15,000 for any
one person injured or killed and
$30,000 for any number more than
one, injured or killed in any one
accident, and against liability
of the short-term lessee for
property damage in the limit of
not less than $10,000 for one
accident, is jointly and
severally liable with the short-
term lessee for any damages
caused by the negligence of the
latter in operating the vehicle
and for my damages caused by the
negligence of any person
operating the vehicle by or with
the permission of the short-term
lessee, except that the foregoing
provisions do not confer any
right of action upon any
passenger in the rented vehicle
against the short-term lessor.
This section does not prevent the
introduction as a defense of
contributory negligence to the
extent to which this defense is
allowed in other cases. Nev. Rev.
Stat. 482.305
------------------------------------------------------------------------
New York Unlimited Liability Every owner of a vehicle used or
operated in this state shall be
liable and responsible for death
or injuries to person or property
resulting from negligence in the
use or operation of such vehicle,
in the business of such owner or
otherwise, by any person using or
operating the same with the
permission, express or implied,
of such owner. Whenever any
vehicles as hereinafter defined
shall be used in combination with
one another, by attachment or
tow, the person using or
operating any one vehicle shall,
for the purposes of this section,
be deemed to be using or
operating each vehicle in the
combination, and the owners
thereof shall be jointly and
severally liable hereunder. N.Y.
Veh. & Traf. Code 388.
------------------------------------------------------------------------
Oklahoma Limited Liability (a) In the event the owner of a
for-rent motor vehicle has not
given proof of financial
responsibility as provided in
Section 8-101 of this title, then
the Tax Commission shall not
register any motor vehicle owned
by such person and rented, or
intended to be rented, to another
unless such owner shall
demonstrate, to the satisfaction
of the Commissioner, his
financial ability to respond in
damages as follows:
2. If he applies for the
registration of more than one
motor vehicle, then in the
foregoing sums for one motor
vehicle, and Twenty Thousand
Dollars ($20,000.00) additional
for each motor vehicle in excess
of one, but it shall be
sufficient for the owner to
demonstrate ability to respond in
damages in the sum of Two Hundred
Thousand Dollars ($200,000.00)
for any number of motor vehicles.
(b) The Department shall cancel
the registration of any motor
vehicle rented without a driver
whenever the Department
ascertains that the owner has
failed or is unable to comply
with the requirements of this
section.
(c) Any owner of a for-rent motor
vehicle who has given proof of
financial responsibility under
this section or who in violation
of this act, has failed to give
proof of financial responsibility
shall be jointly and severally
liable with any person operating
such vehicle for any damages
caused by the negligence of any
person operating the vehicle by
or with the permission of the
owner, except that the foregoing
provision shall not confer any
right of action upon any
passenger in any such rented
vehicle as against the owner. 47
Okla. Stat. Ann. 8-102
------------------------------------------------------------------------
Pennsylvan Limited Liability Failure of a person engaged in the
ia rental of motor vehicles to
comply with sections 1 and 2
[i.e., section 2151 and 2153,
which provide, respectively, as
follows: No motor vehicle rented
or leased from any location in
this Commonwealth may be covered
by an insurance policy or self-
insurance arrangement which
excludes benefits if the lessee
or any other authorized driver is
involved in a vehicular accident
while under the influence of
drugs or intoxicating beverages
at the time of the accident; and
it shall be the duty of the
lessor of motor vehicles to
ensure that, in the event the
rented motor vehicle is not
returned during the contracted
rental period, all liability or
first party coverage continues
until such time as the motor
vehicle is reported to the police
as stolen] shall, as a matter of
law, render such person
responsible for the mandated
minimum limits of financial
responsibility set forth in the
Motor Vehicle Financial
Responsibility Law arising out of
the use of the motor vehicle for
which the lessee would otherwise
be responsible. 73 Pa. Stat.
2153
------------------------------------------------------------------------
Rhode Limited Liability (a) Except as provided below, any
Island [Effective until owner of a for hire motor vehicle
June 2, 2009] or truck who has given proof of
financial responsibility under
this chapter or who in violation
of this chapter has failed to
give proof of financial
responsibility, shall be jointly
and severally liable with any
person operating the vehicle for
any damages caused by the
negligence of any person
operating the vehicle by or with
the permission of the owner.
(b) The liability of a lessor of a
short-term rental motor vehicle
or truck under this section shall
be subject to a limit of $250,000
for bodily injury to or the death
of one person, and subject to the
limit for one person, to a limit
of $500,000 for bodily injury to
or the death of two or more
persons in any one accident, and
a limit of $25,000 because of
injury to or destruction of
property of others in any one
accident.
(c) With respect to any long-term
lease motor vehicle or truck: (1)
the owner and/or lessor (and/or
its successors or assignees) of a
long-term lease motor vehicle or
truck who is not the operator of
the vehicle at the time of an
accident shall not be jointly and
severally liable with the
operator and/or the lessee of the
vehicle for any damages caused by
the negligence of any person
operating the vehicle if, at the
time of the accident, the lessee
has valid motor vehicle liability
insurance which contains limits
in an amount equal to or greater
than $100,000 for bodily injuries
to any one person in any one
accident, $300,000 for bodily
injuries in any one accident, and
$50,000 for damage to property of
others in any accident or a
combined single limit of $300,000
or greater; (2) If the lessee of
a long-term lease motor vehicle
or truck does not have insurance
in the amounts set forth in
subsection (c)(1) above, then the
liability of the owner and/or
lessor (and/or its successors or
assignees) of a long-term lease
motor vehicle or truck shall not
exceed the difference between:
(1) the motor vehicle liability
insurance limits actually
maintained by the lessee of the
long-term lease motor vehicle or
truck at the time of the
accident; and (2) $100,000 for
bodily injuries to any one
person, $300,000 for bodily
injuries in any one accident, and
$50,000 for damage to property of
others in any accident. (d)
Nothing in this section shall be
construed to prevent an owner who
has furnished proof of financial
responsibility or any person
operating the vehicle from making
defense in an action upon the
ground of comparative negligence
to the extent to which the
defense is allowed in other cases
(e) Notwithstanding the
provisions of subsection (a) of
this section, or any provisions
contained under title 31 to the
contrary, the operator's valid
collectable liability or self-
insurance providing coverage or
liability protection for any
third party liability claims
shall be primary, and the valid
and collectable liability or self-
insurance providing coverage or
liability protection for any
third-party liability claims for
the owner and/or lessor arising
out of the operation of the
vehicle shall be excess. This
shall be stated in ten (10) point
type on the face of any short-
term rental agreement. R.I. Stat
31-34-4(b).
------------------------------------------------------------------------
Wisconsin Limited Liability (1) No lessor or rental company
may for compensation rent or
lease any motor vehicle unless
there is filed with the
department on a form prescribed
by the department a certificate
for a good and sufficient bond or
policy of insurance issued by an
insurer authorized to do an
automobile liability insurance or
surety business in this state.
The certificate shall provide
that the insurer which issued it
will be liable for damages caused
by the negligent operation of the
motor vehicle in the amounts set
forth in s. 344.01(2)(d). No
lessor or rental company
complying with this subsection,
and no lessor or rental company
entering into or acquiring an
interest in any contract for the
rental or leasing of a motor
vehicle for which any other
lessor or rental company has
complied with this subsection, is
liable for damages caused by the
negligent operation of the motor
vehicle by another person.
(2) Any lessor or rental company
failing to comply with this
section is directly liable for
damages caused by the negligence
of the person operating such
rented or leased vehicle, but
such liability may not exceed the
limits set forth in s.
344.01(2)(d) with respect to the
acceptable limits of liability
when furnishing proof of
financial responsibility.).
[``Proof of financial
responsibility'' or ``proof of
financial responsibility for the
future'' means proof of ability
to respond in damages for
liability on Account of accidents
occurring subsequent to the
effective date of such proof,
arising out of the maintenance or
use of a motor vehicle in the
amount of $25,000 because of
Bodily injury to or death of one
person in any one accident and,
subject to such limit for one
person, in the amount of $50,000
because of bodily injury to or
death of 2 or more persons in any
one accident and in the amount of
$10,000 because of injury to or
destruction of property of others
in any one accident.] Wis. Stat.
344.51
------------------------------------------------------------------------
* Note: this chart lists only vicarious liability statutes pertaining to
motor vehicles which are rented, loaned, or leased by the owner to
other adults. It does not include statutes specific to minor use,
employee use, or insurance statutes which set forth mandatory
insurance provisions for rental cars or owner-operator coverage. For
purposes of this chart, vicarious liability is not categorized as
limited where the basis for the limitation is the length of time that
a motor vehicle has been rented or leased and/or the weight of a motor
vehicle. (e.g., Iowa Code Ann. 321.493 limits vicarious liability
where a vehicle is leased for a period of 12 months or more pursuant
to a written agreement.)
Senator Pryor. Thank you.
Mr. James.
STATEMENT OF THOMAS M. JAMES, PRESIDENT AND CEO, TRUCK RENTING
AND LEASING ASSOCIATION
Mr. James. Thank you, Mr. Chairman. I appreciate the
opportunity to testify here on this issue of vicarious
liability.
My name is Tom James. I'm the President and CEO of the
Truck Renting and Leasing Association. However, I'm testifying
on behalf of a much broader coalition, which illustrates the
much broader impact that these vicarious liability laws have on
transportation in general, both commercial transportation and
consumer transportation.
The members of our coalition include the U.S. Chamber of
Commerce, National Federation of Independent Business, the
American Trucking Associations, and associations representing
rental car companies, auto dealers, truck dealers, and auto
manufacturers. This is much more than a car rental issue, this
is a consumer choice issue and this is a business
transportation issue.
We support the Graves voucher provision as enacted in
SAFETEA-LU. Graves voucher eliminates liability--without fault,
only--for vehicle renting and leasing companies, making the
system of assigning liability more fair.
Let's just be clear what Graves voucher does and doesn't
do:
Graves voucher does not protect any rental, leasing, or
car-sharing company from liability for its own negligence. In
essence, Mr. Leesfield, the corporate wrongdoers--if you are a
wrongdoer, you are not protected by Graves. If you are found
liable of any sort of negligence, you are not protected by
Graves.
What Graves does do is, it preserves the rights of States
to enact laws mandating the minimum levels of insurance
coverage for the privilege of operating and registering a
vehicle. States still strive to strike a balance--and I'm sure
it's not an easy one for State legislatures--between affordable
insurance and victim compensation. But, make no mistake, there
are no uninsured rental or leased vehicles on the road, even
those driven by foreign drivers. Every vehicle that leaves a
rental car shop, or that leaves an auto dealer's lot, that's
leased by a consumer, is covered by the minimal levels of
financial responsibility that that particular State in which
the transaction has occurred has determined is appropriate and
right.
As Americans, we believe that individuals must be held
responsible for the consequences of what they do. But, a
doctrine of vicarious liability imposes liability on non-
negligent companies. This doctrine dates back to the days when
horse-and-buggy rental operators were supposed to know the
personalities of their horses and when chauffeured drivers--
when a limo got in an accident, you wanted to get to the guy in
the back of the car, not the guy driving the car, because
that's where the money was.
Nowadays, in contrast, non-negligent rental and leasing
companies cannot foresee whether our customers will drive our
cars across State lines; and in some cases, with some of my
association members, we expect them, because they are engaged
in interstate commercial transportation.
The interstate nature of rental and leasing share--and car-
shared fleets just does not work with the patchwork nature of
varying State vicarious liability laws. These laws leave non-
negligent--prior to 2005, left non-negligent rental and leasing
companies vulnerable to liabilities, which we can neither
anticipate nor avoid.
We know what will happen if existing law is reversed; non-
negligent companies will again be exposed to exorbitant
liability awards--most importantly, that bear no relationship
to the company's fault or the company's negligence--solely on
the basis of ownership. And there's no doubt that these
incidents are human tragedies, individuals and families deserve
to be compensated, but they deserve to be compensated by
parties and entities whose negligence contributed to the
accident.
In many cases--I have a couple of examples in my written
testimony--in 1991, a car was rented from Alamo in Fort
Lauderdale. The driver of the car, after he left the rental
shop, fell asleep. The car veered off the road. Solely on the
basis of ownership, a $7.7-million award.
For 17 years, Sharon Faulkner, who I think has testified
before this committee--she owned a car rental company, rented a
car to a woman, the woman lent the car to her son, an
unauthorized driver; that gentleman got in an accident; her
company was driven out of business because of that
nonauthorized driver's activities.
Congress has debated this issue. It has debated it twice in
the House of Representatives, voted on it once, on a rollcall
vote. It came up extensively in Congress. The law has been
upheld by the Florida Supreme Court, the highest courts in
Minnesota and Connecticut. The law has been upheld by the U.S.
District Court and U.S. Court of Appeals. All of those courts
recognized both the interstate nature of the car and truck
rental and lease fleet, as well as the authority of Congress,
because of that interstate nature, to enact a Federal law
regarding liability for those vehicles that travel across State
lines.
Let's--this has been debated by Congress. Congress took
action, under its own authority. Let's not make what has been
made right--make it wrong again. Let's not compel consumers and
businesses to pay higher costs for liability over which the
rental car, the rental truck, or the car and truck leasing
company has no ability to avoid. There are no practices they
can take to protect them from this exposure. It's solely on the
basis of owning the vehicles. I know I'm almost out of time,
here. If I just can sum up:
We're talking about fairness, consumer choice, American
jobs. In all of the previous panels, we talked--we heard about
some of the most dangerous issues that are out there for
highway safety: drunk driving, distracted driving, untrained
teen drivers. All of these safety issues revolve around the
driver. Whether those drunk-driving or distracted-driving
incidents happened in a red Taurus that was rented from
Enterprise or whether it was a red Taurus that was bought from
Koons Ford, doesn't make a difference as to the safety and the
impact of the incidents that happened in that car. It really
goes down to the driver.
And I'm happy to answer any questions, but we strongly
support the Graves law.
Thank you.
[The prepared statement of Mr. James follows:]
Prepared Statement of Thomas M. James, President and CEO,
Truck Renting and Leasing Association
My name is Tom James. I am President and CEO of the Truck Renting
and Leasing Association. I am testifying today on behalf of a broad
coalition of companies, trade associations, and other stakeholders who
were significantly impacted by state vicarious liability laws before
Congress took action in 2005. The breadth and depth of our coalition is
conveyed by the fact that our members include the U.S. Chamber of
Commerce, the National Federation of Independent Business, the American
Trucking Association, and associations representing rental car
companies, auto dealers, truck dealers, auto manufacturers and other
segments of our industry. (See attached list of supporters of members
of the coalition supporting Graves/Boucher.)
The nation's car and truck renting, leasing and sharing industry is
an important part of the American economy, supporting jobs and business
activity in communities throughout this country.
For instance, in truck renting and leasing, there are about 550
companies, employing 100,000 people, and operating out of about 24,000
locations in the United States. As with leased automobiles, there are
few identifying marks to distinguish trucks that are owned by their
operators from trucks that are leased or rented by their operators. But
one out of every five trucks on the highways is rented or leased.
Meanwhile, rented, leased and shared cars account for a large share
of American automobiles. In 2009, the U.S. rental car industry had 1.6
million cars in service at over 16,000 locations. In fact, every year,
22 percent of the purchases of American-made cars and light-duty
vehicles are for commercial fleet leasing use.
Our coalition supports the Graves/Boucher provision included in the
Transportation Equity Act of 2005. It eliminated liability without
fault for vehicle renting and leasing companies. And it preserved the
states' ability to enact insurance laws to protect consumers and their
right to sue companies for their negligence in the rental or leasing of
vehicles.
Over the past 5 years, Graves/Boucher has had many beneficial
effects for consumers, companies, employers and the entire economy.
Among other benefits, environmentally friendly car-sharing programs
have grown rapidly since the enactment of Graves/Boucher. And consumer
auto lessors are offering affordable options for car acquisition in New
York, specifically in response to the enactment of Graves Law.
In supporting Graves/Boucher, we believe that we are defending
three basic, bedrock concerns: simple fairness, American jobs, and
consumer choice.
Before I go any further, let me be clear about what Graves/Boucher
does and does not do. To put it plainly, there are no uninsured rental
or leased vehicles on the road.
The language in the law emphasizes that states continue to have the
right to enact and enforce laws mandating insurance coverage levels for
the privilege of operating and registering a vehicle--minimum levels of
financial responsibility or MFR. This provision also ensures that
states have the right, if they so choose, to set higher levels of MFR
for rented or leased vehicles.
To repeat this point, because it is so important: Under these MFR
statutes, there are no uninsured consumer rental or leasing vehicles.
Each vehicle is covered up to an amount determined by the state to be
an appropriate minimum level of insurance. Many consumer auto lease
contracts actually require that higher levels of insurance must be held
by the lessee. Almost all commercial rental and lease contracts require
the lessee to hold levels of insurance significantly higher than the
minimum level of financial responsibility.
Moreover, Graves/Boucher does not in any way protect a renting or
leasing company from liability for its own negligence. Whether that
negligence involves the maintenance of a vehicle or the decision to
enter into a rental or lease contract with a specific individual or
business, Graves/Boucher offers no protection from liability in these
cases. But it does make the system of assigning liability much more
fair.
As Americans, we believe that individuals must be held responsible
for the consequences of what they do. But the doctrine of vicarious
liability imposes liability on non-negligent car and truck renting and
leasing companies, or their affiliates, regardless of fault. This
doctrine dates back to the days of horse and buggies, when horse and
buggy rental operators were supposed to know the personality of their
horses.
On the state level, vicarious liability laws arbitrarily
transferred liability from a negligent driver to the renting or leasing
company--even though that company had no ability to prevent or foresee
the accident. It is not fair to impose multimillion-dollar judgments on
any entity, whether an individual or corporation, when they have done
nothing wrong.
These laws weren't only unfair--they were unworkable in a country
comprised of 50 states and an industry as diverse as the Nation that it
serves.
Please keep in mind that the rented and lease fleet includes:
automobiles leased to consumers, generally from 3 to 5 years;
automobiles rented to consumers for periods of one day to 30 days;
automobiles leased to businesses, generally for 3 years; trucks rented
to consumers for periods of one to 30 days; and trucks leased to
businesses, usually for one to 5 years.
There is one thing that all of these lease and rental transactions
have in common: The leasing or renting company cannot control where the
vehicle is operated--and in what manner the vehicle is operated--during
the term of the lease and rental.
The fact is: We can't even prevent our customers from driving our
vehicles across state lines. A company operating in Virginia cannot
stop its customers and vehicles from traveling to Maryland,
Pennsylvania, New Jersey or New York.
Before Congress preempted the state laws, when customers drove
rental cars or trucks across state lines, they were covered by the laws
of the states where they are driving. And these laws were a crazy-quilt
of differing provisions and penalties.
Combined with our inability to control where and how our cars and
trucks were driven, this patchwork of state vicarious liability laws,
put non-negligent rental and leasing companies in an untenable
situation. We were exposed to liabilities for which there was no best
practice, nor any method for protection. We were vulnerable solely
because the vehicles that we owned might have been involved in
accidents after we gave up control of the vehicles to renters or
lessees.
Such laws are not fair. And they destroy American jobs and diminish
consumer choice.
In enacting Graves/Boucher, Congress took action 5 years ago to
make sure that these laws no longer injure consumers, working
Americans, and businesses large and small. You've heard the saying,
``If it ain't broke, don't fix it.'' You fixed this already. So please
don't fix it again.
We know what will happen if the existing law is reversed. Once
again, non-negligent companies will be subject to huge claims for
damages for which they are not responsible.
For instance, in 1993, two friends rented a car in New Jersey from
Freedom River, Inc., a Philadelphia licensee of Budget Rent-A-Car
Corporation. The rental agreement identified only the two renters as
authorized drivers. But the wife of one of the renters drove the
automobile and was involved in a single-car accident in New York. Her
sister was seriously injured in the accident. An arbitrator applied New
York law and found the defendant and Freedom River liable for $3.75
million. This judgment was affirmed by the New Jersey Supreme Court.
In 1991, four British sailors rented a car from Alamo in Fort
Lauderdale, Florida, to drive to Naples. While driving to Naples, the
driver of the car fell asleep at the wheel. The car left the road and
ended up in a canal. The driver and two passengers were killed. The
fourth passenger was seriously injured. Alamo was found vicariously
liable for the deaths and injuries due solely to the fact that it owned
the vehicle. No negligence for the accident was attributed to Alamo,
Alamo was ordered by a jury to pay the plaintiffs $7.7 million. The
jury award was affirmed on appeal.
What will happen to consumers if Graves/Boucher is reversed and
non-negligent companies are once again subject to huge claims such as
these for damages for which they are not responsible? Once again,
renting and leasing customers are certain to pay higher costs to cover
the actions of all negligent drivers. When state laws were in effect,
some renting and leasing companies could not even find affordable
insurance to cover them in the case of a vicarious liability claim.
Once again, consumers and businesses are certain to pay high
commercial costs for transportation of goods. In the midst of the worst
economy in 70 years or more, this puts American jobs at risk.
Once again, small businesses--the most vulnerable car and truck
rental companies--are certain to run the risk of failure when hefty
verdicts are assessed to pay for the actions of their at-fault renters.
These business failures will take their toll in fewer choices for
consumers and fewer jobs for workers.
For example, for 17 years, Sharon Faulkner owned a small car rental
company in Albany, New York. Then, one day, she rented a car to a woman
who agreed that she would be the only driver of the car. But the woman
lent the car to her son, who, without Sharon Faulkner's knowledge,
drove the car to New York City. There, he was involved in an accident
in which he struck a pedestrian in a crosswalk. Under New York State's
vicarious liability law, the injured person sued Sharon Faulkner's
company, collecting substantial damages and driving her out of
business.
She had not been negligent in any way. She could not have prevented
the accident from occurring. But she was held liable and put out of
business. (See attached letter from Sharon Faulkner.)
Small car rental companies aren't the only companies that will
suffer if the existing law is reversed. Once again, auto manufacturers
and leasing companies are certain to suffer severe losses when faced
with frivolous lawsuits. For instance, before the Transportation Equity
Act of 2005, many companies refused to lease in New York because
businesses feared expensive and overly burdensome losses.
Our Nation has made a great investment in the survival of our
domestic auto industry, and that investment is reaping rewards with the
revival of the big three American companies. Why harm the American auto
industry--and why jeopardize the jobs of American workers--in order to
return to a dubious doctrine that originated in the era of the horse
and buggy?
Congress has already debated this issue comprehensively and decided
it correctly. Commencing in 1996, Congress reviewed vicarious liability
laws, held hearings and considered many proposals. In 1998 Senators
Rockefeller and Gordon introduced legislation (S. 2236) which included
a vicarious liability provision. On Sept. 30, 1999, this subcommittee
held a hearing on Senator McCain's vicarious liability legislation (S.
1130).
In 2005, the House of Representatives passed an amendment that
preempted state vicarious liability laws applicable to vehicles, as
part of the Highway Reauthorization legislation. This amendment was
included in the final version that was enacted into law.
Since 2005, this law has been upheld in several Federal court
decisions. (See attached summaries of court cases since Graves/
Boucher.) For instance, in Garcia v. Vanguard Car Rental USA, Inc., 540
F.3d 1242 (11th Cir. 2008), the Eleventh Circuit upheld the amendment's
constitutionality because the statute has a substantial effect on
interstate commerce. Let me quote from the court's decision:
``Congress rationally could have perceived strict vicarious
liability for the acts of lessees as a burden on [the rental
car] market. . . . The reason it could have done so is that the
costs of strict vicarious liability against rental car
companies are borne by someone, most likely the customers,
owners, and creditors of rental car companies. If any costs are
passed on to customers, rental cars . . . become more
expensive, and interstate commerce is thereby inhibited.
Moreover, if significant costs from vicarious liability are
passed on to the owners of rental car firms, it is possible
that such liability contributes to driving less-competitive
firms out of the marketplace, or inhibits their entry into it,
potentially reducing options for consumers.''
Let's not take what has been made right and make it wrong again. It
is wrong to compel consumers across the Nation to pay higher rental
rates for misguided vicarious liability laws which became obsolete with
the invention of the automobile at the beginning of the last century.
It is wrong to deprive consumers of the competition and lower rental
rates that smaller operators can offer. It is wrong to return to the
days when a car or truck rental company, even one operating outside of
a vicarious liability state, could protect itself against exorbitant
claims only by going out of business. And it is especially wrong to
take actions that would have these consequences in the midst of a
national economic crisis.
Thank you for the opportunity to present this testimony today and
to speak up for fundamental fairness, for consumer choice, and for
American jobs.
Attachments: (1) List of members of the coalition supporting
Graves/Boucher; (2) Letter from Sharon Faulkner; (3) Summaries of court
cases since Graves/Boucher was enacted; (4) Statement from attorney
Mark Perry.
______
Companies and Organizations that Support the Graves/Boucher Provision
Alamo Rent-A-Car
Ally Financial, Inc.
American Automotive Leasing Association
American Car Rental Association
American Financial Services Association
American Insurance Association
American International Automobile Dealers Association
American Tort Reform Association
American Trucking Association
Association of International Automobile Manufacturers
Avis Budget Group
Chrysler Group LLC
Dollar Thrifty Automotive Group
Enterprise Rent-A-Car
Ford Motor Company
General Electric
General Motors Company
Hertz Corporation
Honda Motor Company
Mazda North American Operations
Motor & Equipment Manufacturers Association
National Association of Manufacturers
National Automobile Dealers Association
National Car Rental
Nissan North America
Penske Truck Leasing Company
Ryder System, Inc.
The Financial Services Roundtable
Truck Renting and Leasing Association
U.S. Chamber Institute for Legal Reform
U.S. Chamber of Commerce
______
Statement by Sharon Faulkner--September 24, 2010
Chairman John D. Rockefeller IV,
Ranking Member Kay Bailey Hutchison,
Subcommittee Chairman Mark Pryor,
Subcommittee Ranking Member Roger Wicker,
Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Chairman Rockefeller and Members of the Committee:
I represent one of the many business owners who were significantly
impacted by state vicarious liability laws prior to Congress taking
action in 2005. Therefore, I write in support of the provision included
in the TEA-LU legislation that eliminated liability without fault for
vehicle renting and leasing companies, and yet preserved the states'
ability to enact insurance laws to protect consumers and their ability
to sue companies if they are found to be negligent in the rental or
leasing of vehicles.
For seventeen years, until 1997, I was a small business owner
operating an independent car rental company in upstate New York. The
company, Capitaland Rent a Car, was headquartered in Albany. During
those years, thanks to the hard work of my employees and the loyalty of
local customers, my company survived two recessions and fierce
competition.
That situation changed one day in 1997 when I was notified that I
and my company were being sued for an accident involving one of my
rental cars that occurred over a year previously. Capitaland had rented
a car in 1996 to a customer who possessed a valid New York driver's
license. As part of Capitaland's standard rental agreement, the
customer agreed that she would be the only driver of the car. My
customer then loaned the car to her son who was an unauthorized driver
under the rental agreement. The renter's son, without her knowledge,
drove the car to New York City, where our car was involved in an
accident in which a pedestrian was struck in a crosswalk. The injured
person sued our company for the son's negligence in causing the
accident.
This lawsuit caught me completely by surprise because when I
checked my records, I found that the rental vehicle had been returned
to us without any damage. As a result, I had no idea that an accident
had ever occurred or that a person had ever been injured. Nevertheless,
Capitaland was named as a codefendant in the lawsuit, which demanded
enormous amounts of money to pay medical bills and compensate the
injured person for his pain and suffering.
You might wonder how it was that my company was sued for the
accident. We rented to a licensed driver, the renter loaned the car to
an unauthorized driver. It was the unauthorized driver, a person that
neither I nor any of my employees ever had a chance to meet, that
caused the accident that injured the pedestrian. We weren't negligent
in any way and I could not have prevented the accident from occurring.
Therefore, how could I have been liable?
However, New York was one of a very small minority of states that
held companies that rent motor vehicles liable for the negligence of
persons who drive their vehicles whether that person is a customer or
not. In these states a car rental company could have been assessed
unlimited damages by a court under the legal doctrine of vicarious
liability if one of its cars were involved in an accident in which the
driver of the car was negligent. Simply because we owned the car, New
York law held my company liable for the negligence of the renter.
For me this lawsuit was a final straw. At the time I was a mother
with three small children; and Capitaland was our sole means of
support. I found it incredible that I could lose everything I had
worked to achieve for 17 years because of an accident for which I
wasn't at fault. In effect, every time I rented a car to a customer I
was putting my family's future on the line in the hope that the
customer did not drive the car negligently and cause an accident.
So I made the decision to sell my company, and in the end, all of
my former employees were laid off. The result: another independent car
rental company disappeared in New York. But my company wasn't alone.
Capitaland was one of over 300 car rental companies that closed in New
York while vicarious liability laws were in place.
Vicarious liability for companies that rent or lease motor vehicles
is unfair and contrary to one of our Nation's fundamental pillars of
justice, that a person should be held liable only for harm that he or
she causes or could have prevented in some way. TEA-LU legislation put
a stop to this legal lottery, preempting state vicarious liability
laws, but preserving the states' ability to enact insurance laws to
protect consumers and consumers' ability to sue companies for their
negligence in the rental or leasing of vehicles. It's too late to help
my former company, but Congress can see to it that it doesn't happen
again to someone else by preventing the vicarious liability doctrine
from rearing its head once more.
Sincerely,
Sharon Faulkner,
Former small business owner of Capitaland Rent a Car,
an independent car rental company in New York.
______
Update on Judicial Action Involving Federal Law Eliminating Vicarious
Liability (the Graves Amendment)
Court cases continue to be filed following the enactment of Federal
vicarious liability preemption on August 10, 2005, challenging the
authority of the law known as the Graves Amendment. The following are
brief summaries of the major cases in which courts have issued rulings.
The Industry Council for Vehicle Renting and Leasing is tracking these
and other court cases where application and/or interpretation of the
Federal vicarious liability repeal statute is involved. TRALA and the
Industry Council have filed amicus briefs on behalf of the industry in
eight of these cases, seven of which have subsequently resulted in
positive decisions (Graham v. Dunkley and NILT, Inc., Garcia v.
Vanguard, Bechina v. Enterprise Leasing Company, Kumarsingh v. PV
Holding and Avis Rent-A-Car System, Merchants Insurance Group v.
Mitsubishi Motor Credit Association, Poole v. Enterprise Rent-A-Car,
and Meyer vs. Enterprise Rent A Car). One case in which TRALA and the
Industry Council have filed amicus brief is still pending (Vargas v.
Enterprise Leasing Company).
Merchants Insurance Group v. Mitsubishi Motor Credit Association--U.S.
District Court, Eastern District of New York
Positive Decision
On December 16, 2009, the U.S. Court of Appeals for the Second
Circuit reversed an earlier decision of the United States District
Court for the Eastern District of New York by vacating the District
Court's judgment. The case was an appeal by Merchant's Insurance Group
to the U.S. Court of Appeals, and on March 3, 2008, TRALA filed an
amicus brief supporting Mitsubishi Motor Credit Association (MMCA) and
arguing that the Graves Amendment preempted New York State's vicarious
liability law, as the District Court had previously ruled. However, the
Court of Appeals ruled that the original lawsuit in the case commenced
before the Graves Amendment became Federal law, so the preemption
should not apply to this case. U.S. Court of Appeals Decision
The U.S. Court of Appeal's ruling vacated the ruling by the
District Court for the Eastern District of New York, which had ruled in
favor of MMCA on September 25, 2007, by granting their motion for
summary judgment based on the preemptive nature of the Graves Amendment
(49 U.S.C. 30106) over New York vicarious liability law. In granting
MMCA's motion for summary judgment, the District Court stated the
``courts have consistently held that the Graves Amendment prohibits
states from imposing vicarious liability on owner-lessors such as
defendants where the lessor is not negligent.'' Addressing the
constitutionality of the Federal statute, the court stated that ``to
date, only one court has found the Graves Amendment unconstitutional .
. . Graham [v. Dunkley], however, has not been followed by any other
court. To the contrary, a number of courts have explicitly found the
statute constitutional.''
It is important to note that even though the U.S. Court of Appeals'
ruling reversed the District Court ruling that affirmed the Graves
Amendment, the Court of Appeal's decision does not challenge the
authority of the Graves Amendment. In the ruling the Court of Appeals
specifically stated that ``In the instant case, there is no dispute
that, if Merchant's suit against MMCA was commenced after the Graves
Amendment's effective date, the Graves Amendment preempts New York law
and precludes Merchants' claim.''
Meyer vs. Enterprise Rent A Car--Minnesota Court of Appeals
Positive Decision--Positive Ruling on Appeal
Positive Decision in Minnesota Supreme Court
On January 20, 2009, the Minnesota Court of Appeals affirmed an
earlier decision of the Otter Tail County District Court of Minnesota
which granted Enterprise's motion for summary judgment in favor of
Enterprise in Meyer v. Enterprise Rent-A-Car. In the Minnesota Court of
Appeals, the judge rejected Meyer's contention that Minnesota Statutes
169.09, subd. 5a, and Minnesota Statutes 65B.49 subd. 5a(i)(2),
which established caps on vicarious liability, were preserved by the
Graves Amendment's savings clause which exempts ``financial
responsibility laws'' from Federal preemption. The Court of Appeals
affirmed the decision of the District Court ruling that the existing
statutes that established caps on vicarious liability are not financial
responsibility laws and are not preserved by the Graves Amendment, the
Federal law codified at 49 U.S.C. 30106.
In a subsequent appeal the Minnesota Supreme Court issued a ruling
that upheld the decision of the Minnesota Court of Appeals on January
14, 2010. In its ruling, the Supreme Court stated that ``We conclude
that there is nothing ambiguous about the statute. Minn. Stat.
169.09, subd. 5a, is not a financial responsibility law that limits, or
conditions liability of the rental-vehicle owner for failure to meet
insurance-like requirements or liability insurance requirements within
the meaning of the (b)(2) savings clause . . . Because there are no
financial responsibility laws incorporated into subdivision 5a, we
conclude that the statute does not fall within the (b)(2) savings
clause.
Vargas v. Enterprise Leasing Company--Fourth District Court of Appeal
of the State of Florida
Positive Decision--Positive Ruling on Appeal
Appeal Pending in Florida Supreme Court
On October 31, 2008, the Florida District Court of Appeal for the
Fourth District affirmed an earlier trial court decision granting a
motion for summary judgment in favor of Enterprise Leasing Company in
the Vargas v. Enterprise case. The motion was granted pursuant to
Enterprise's claim that it could not be held vicariously liable due to
the Federal law known as the Graves Amendment (49 U.S.C. 30106). The
plaintiff contended that Florida Statute section 324.021(9)(b)2, which
sets caps on vicarious liability, was preserved by the Graves
Amendment's provision that exempts ``financial responsibility laws''
from the Federal law's pre-emption. The appellate court stated in its
decision that ``section 324.031(9)(b)2 is not the type of law that
Congress intended to exclude from preemption.'' The court went on
further to say that the ``Florida legislature's endorsement of and
limitations on the vicarious liability imposed under the dangerous
instrumentality doctrine is not a financial responsibility
requirement.''
Vanguard Car Rental USA, Inc. v. Huchon--U.S. District Court, Southern
District of Florida
Negative Decision--Positive Ruling Compelled by U.S. Court of Appeals
for 11th Circuit
On September 14, 2007, the United States District Court for the
Southern District of Florida denied both a motion (by Federal court
defendant Huchon) to dismiss Vanguard's Petition for Declaratory
Judgment and a motion (by Federal court plaintiff Vanguard) for Summary
Judgment.
The court denied Huchon's motion to dismiss based on several
provisions of law not directly related to vicarious liability or 49
U.S.C. 30106 (the Graves Amendment). In considering Vanguard's Petition
for Declaratory Judgment, the court ruled that Huchon's claim was not
being made pursuant to Florida statute limiting liability of companies
renting a vehicle for less than one year (Florida Statute Section
324.021). Instead the court ruled that the claim was being made
pursuant to Florida's Doctrine of Dangerous Instrumentality. Therefore,
the court declared that ``the only remaining issue is whether [the
Graves Amendment] is constitutional.''
The court cited its disagreement with the March 5, 2007 ruling by
the U.S. District Court for the Middle District of Florida in the
Garcia v. Vanguard case in which the Graves Amendment was found to be
constitutional under three separate tests of the U.S. Congress'
authority under the Commerce Clause. The court in Vanguard v. Huchon
held that ``the direct language of 49 U.S.C. 30106(b) regulates tort
liability and does not directly regulate either channels of interstate
commerce or the use of those channels.'' Further, the court ruled that
the Graves Amendment ``does not regulate the use of instrumentalities
of interstate commerce.'' The court uses these findings to rule that
``Congress exceeded the authority granted by the Commerce Clause when
it enacted 49 U.S.C. 30106.'' Based on this conclusion, the court
denied Vanguard's Petition for Declaratory Judgment.
On March 12, 2009, The United States District Court for the
Southern District of Florida, reversed its September 14, 2007 decision
and ruled in favor of Vanguard Car Rental. In its Final Judgment, the
Federal court ruled that the ``vicarious liability claim is prohibited
by the Graves Amendment . . . This case remains closed [and] all
pending motions are denied as moot.'' The court was compelled to
reverse its earlier decision by the August 19, 2008 ruling of the U.S.
Court of Appeals for the 11th Circuit in Garcia v. Vanguard. In that
decision, the Graves Amendment was determined to be constitutional
under all three categories of Congress' powers under the Commerce
Clause. The Federal appellate court in Garcia also ruled that Florida's
statutes setting caps on vicarious liability were not financial
responsibility statutes preserved by the Graves Amendment and were pre-
empted by the Federal law. All Federal District courts in Alabama,
Florida and Georgia must follow the U.S. Court of Appeals decision in
Garcia v. Vanguard.
Graham v. Dunkley and Nilt, Inc.--Supreme Court--Queens County, New
York
Negative Decision--Positive Ruling on Appeal
Positive Ruling by New York Court of Appeals
On September 11, 2006, the Supreme Court in Queens County, New York
denied a motion made by Nissan Infiniti, LT in Graham v. Dunkley and
Nilt, Inc. to dismiss a vicarious liability claim. The motion to
dismiss was based on the Federal statute (49 U.S.C. 30106) that
prohibits states from imposing liability solely on the basis of
ownership. Judge Thomas Polizzi, in denying the motion, held that the
Federal statute ``is unconstitutional exercise of congressional
authority under the Commerce Clause of the United States Constitution,
Article I, Section 8.'' The action in Graham v. Dunkley and Nilt, Inc.
was the first case in which a court has ruled against the
constitutionality of the Federal statute.
The trial court decision in Graham v. Dunkley was reversed by the
Appellate Division, Second Judicial Department of the Supreme Court on
February 1, 2008. In its decision, the appellate court stated that ``we
agree with the weight of precedent that the Graves Amendment was a
constitutional exercise of Congressional power pursuant to the Commerce
Clause of the United States Constitution.'' The appellate court
declared unequivocally that ``actions against rental and leasing
companies based solely on vicarious liability may no longer be
maintained.''
On April 29, 2008, New York State's highest court, the NY Court of
Appeals, dismissed the plaintiff's appeal of the lower appellate court
decision upholding the Graves Amendment. This action strongly affirms
the authority of the Graves Amendment to preempt New York's unlimited
vicarious liability law.
Bechina v. Enterprise Leasing Company--Circuit Court of the 11th
Judicial Circuit--Miami Dade County, Florida
Positive Decision--Positive Ruling on Appeal
On April 24, 2007, the court granted a Motion for Summary Judgment
made by defendant Enterprise Leasing Company. In granting the motion,
the court agreed with the Enterprise arguments detailing the preemptive
authority of the 49 U.S.C. 30106 (the Graves Amendment). The court also
agreed with the defendant that Florida's statute capping vicarious
liability involving motor vehicles rented for less than one year
(Section 324.021) is not a financial responsibility statute preserved
by the Graves Amendment language.
Florida's Third District Court of Appeals on December 12, 2007,
upheld the preemptive authority of the Graves Amendment (49 U.S.C.
30106) by affirming the 11th Circuit Court decision. In its opinion,
the appellate court held that ``motor vehicle leasing transactions
unquestionably affect the channels of interstate commerce, the
instrumentalities of interstate commerce, and intrastate activities
substantially related to interstate commerce.''
Traitouros v. Wheels, Inc., Hoffman, La Roche and The La Roche Group--
Supreme Court, Nassau County, New York
Positive Decision
On October 23, 2007, the Supreme Court, Nassau County, New York,
granted defendant Wheels, Inc.'s motion to dismiss the plaintiff's
claim of vicarious liability pursuant to New York's Vehicle Traffic Law
Section 388. In response to the defendant's motion based on the
preemptive authority of Graves Amendment (49 U.S.C. 30106), the
plaintiff cited the Graham v. Dunkley decision as an example that the
New York Courts ``have not had one view on this issue.'' In its order
granting the motion to dismiss, the court stated that ``this Court does
not share the view held only by the Graham v. Dunkley Court. Rather,
for the purposes of deciding this motion, the Federal statute is
constitutional.''
Deopersad Kumarsingh and Rosalie Kumarsingh, his Wife v. PV Holding
Corporation and Avis Rent A Car System, Inc.--Circuit Court of
the 11th Judicial Circuit--Miami-Dade County, Florida
Positive Decision--Positive Ruling on Appeal
Positive Ruling by Florida Supreme Court
On October 13, 2006, citing the Graves Amendment's preemption of
state vicarious liability laws, Miami-Dade County Circuit Judge Michael
A. Genden rendered a final judgment for the defendant ruling that they
cannot be held vicariously liable for damages caused by their customer
operating a rented vehicle. In his ruling, Judge Genden stated ``the
`Graves Amendment' has abrogated vicarious liability of automobile
lessors in the state of Florida effective August 10, 2005 and,
therefore, . . . the defendants cannot be vicariously liable to
plaintiffs . . .'' Judge Genden went on to state that ``the maximum
liability for short term automobile lessors in section 324.021(9) Fla.
Stat. are `caps' on vicarious liability and are not `financial
responsibility' requirements for the privilege of owning/operating a
motor vehicle in the state of Florida.''
On October 3, 2007, Florida's Third District Court of Appeals ruled
to affirm the October 13, 2006 decision of the Circuit Court of the
11th Judicial Circuit--Miami-Dade County. In its opinion, the Court of
Appeals stated that ``the trial court correctly concluded that the
Graves Amendment, by its clear and unambiguous wording, supercedes and
abolishes state vicarious liability laws.''
On May 19, 2008, the State of Florida's highest court, the Florida
Supreme Court, denied the plaintiff's request to consider another
appeal of the two lower decisions upholding the authority of the Graves
Amendment.
Castillo v. Bradley and U-Haul Company of Oregon--Supreme Court, Kings
County, New York
Positive Decision
On October 2, 2007, the Supreme Court, Kings County, New York
granted defendant U-Haul's motion to dismiss plaintiff's vicarious
liability claim. In granting the motion, the court affirmed the
preemptive authority of Federal statute 49 U.S.C. 30106 and the
constitutionality of the law.
In its decision, the court stated that ``there is ample authority
to the effect that the ``Graves Amendment'' has preempted'' New York's
vicarious liability law. The court also states that ``the
constitutionality of the statute has been upheld in two out of the
three Federal court cases found to have considered the question''
calling those cases ``persuasive and controlling.''
Seymour v. Penske Truck Leasing Company--U.S. District Court, Southern
District of Georgia, Savannah Division
Positive Decision
On July 30, 2007, the U.S. District Court, Southern District of
Georgia, Savannah Division, granted defendant Penske Truck Leasing
Company's motion for summary judgment against the plaintiff's claim for
damages. The court found that Penske was not liable for the actions of
a driver not authorized to operate the vehicle under the rental
agreement. The Federal court also found that the Graves Amendment is a
constitutional Federal statute. In its decision, the court states that
it has ``no trouble concluding that 49 U.S.C. 30106 . . . regulates
commercial transactions (rentals or leases) involving instrumentalities
of interstate commerce (motor vehicles--``the quintessential
instrumentalities of modern interstate commerce'').
Iljazi v. Dugre, et al., (Enterprise Rent-A-Car)--Superior Court,
Waterbury, Connecticut
Positive Decision
On April 13, the Superior Court of Connecticut Waterbury District
granted defendant Enterprise Rent-A-Car's motion to strike the
plaintiff's vicarious liability count against the company. Enterprise
based its motion on the ``Graves Amendment's'' preemption of
Connecticut's vicarious liability statute. The court cited Davis v.
Illama and Dorsey v. Beverly, supra in its decision to strike the
vicarious liability count against Enterprise.
The plaintiff filed an objection to the motion to strike the count
on the grounds that the Graves Amendment violates the Commerce Clause
of the U.S. Constitution. The plaintiff cited the decision of the New
York Supreme Court, Queens County in Graham v. Dunkley as authority for
its claim. In response to the objection, the court quotes from a 1989
decision in Bottone v. Westport . . . ``(I)n passing upon the
constitutionality of a legislative act, we will make every presumption
and intendment in favor of its validity . . . The party challenging a
statute's constitutionality has a heavy burden of proof; the
unconstitutionality must be proven beyond all reasonable doubt.'' The
court goes on to state that ``beyond offering the New York lower court
decision as authority for the unconstitutionality of the Graves
Amendment, the plaintiff has offered no additional case law or argument
and accordingly, the plaintiff has not sustained its burden of proving
that the statute is unconstitutional.''
Garcia v. Vanguard Car Rental USA, Inc.--U.S. District Court, Middle
District of Florida, Ocala Division
Positive Decision--Positive Ruling on Appeal
March 5, 2007, the United States District Court, Middle District of
Florida, Ocala Division ruled that Florida Statute 324.021(9)(b)(2),
setting caps on vicarious liability of short-term lessors, is not a
``financial responsibility law'' protected 49 U.S.C. 30106(b). The
court explained that ``the Florida Statute in question does not create
insurance standards for entities that register and operate motor
vehicles within Florida.'' The court went on to state that its
``analysis drives the conclusion that vicarious liability of motor
vehicle lessors under Florida's dangerous instrumentality doctrine is
now preempted by Federal law. Consequently, Fla. Stat. 324.021(9)(b)(2)
also is preempted.''
The Federal court also finds that ``there can be no dispute that
leased vehicles routinely travel between states'' and that ``the Graves
Amendment is constitutional under the first category of Congress'
Commerce Clause powers.'' The Court ``also finds that the Graves
Amendment is constitutional under the second category of Congress'
Commerce Clause powers because the statute regulates the leasing and
operating of motor vehicles which are the quintessential
instrumentalities of modern interstate commerce.'' The Court further
finds that ``the Graves Amendment . . . is constitutional under the
third category--regulating intrastate activities that substantially
affect interstate commerce.''
On August 19, 2008, the United States Court of Appeals for the 11th
Circuit affirmed the U.S. District Court decision.
Jones v. Bill, et al.--Supreme Court of the State of New York Appellate
Division: Second Judicial Department
Positive Decision
On November 28, 2006, the Second Judicial Department of the Supreme
Court of New York Appellate Division upheld an earlier decision of the
Supreme Court, Dutchess County to dismiss a complaint against the
vehicle lessor DCFS Trust based on 49 U.S.C. 30106, commonly known as
the ``Graves Amendment.'' In its decision to uphold the trial court
decision, the court explained that the ``Graves Amendment abolished
vicarious liability of long-term automobile lessors based solely on
ownership.'' Furthermore, the court noted that the ``Graves Amendment
is applicable to any action commenced on or after the date of
enactment,'' August 10, 2005. Though the initial suit against defendant
and vehicle operator Jessica Bill was filed on August 8, 2005, DCFS
Trust was not added as a defendant until an amended filing on November
1, 2005. The court rejected as ``without merit'' the plaintiff's
assertion that its claim against DCFS is maintainable under the
relation-back doctrine.
The Second Judicial Department of the Supreme Court of New York
Appellate Division is the same court where the appeal of the Graham v.
Dunkley and NILT, Inc. decision declaring 49 U.S.C. 30106 as
unconstitutional is currently pending.
Poole v. Enterprise Leasing Company of Orlando--18th District Circuit
Court--Brevard County, Florida
Negative Decision--Positive Ruling on Motion for Summary Judgment
On January 19, 2006, Judge T. Mitchell Barlow denied Enterprise's
motion to dismiss this case and ruled that Florida's statute setting
caps on the vicarious liability of short-term lessors (Florida Statute
324.021 (9)(b)(2)) is a financial responsibility law and falls under
the provision of the Federal law preserving a state's right to impose
financial responsibility laws required for registering and operating a
motor vehicle (49 U.S.C. 30106(b)). During the hearing, there was some
discussion of the constitutionality of the Federal law with regard to
its effective date and the plaintiff's right to due process of law. The
judge did not rule on this question and asked counsel on both sides to
refrain from extensive debate on this issue as he felt he could make a
ruling based only on the question of financial responsibility laws.
This suit was filed on August 10, 2005, the day Federal vicarious
liability preemption was enacted. The plaintiff's case was argued by
Andre Mura, Senior Litigation Counsel for the Association of Trial
Lawyers of America's Center for Constitutional Litigation.
Davis v. Ilama et al. (We Rent Minivans)--Superior Court--Waterbury,
Connecticut
Positive Decision
On March 14, 2006, the Superior Court of Connecticut granted We
Rent Minivans' motion to strike two counts against it that were based
on liability solely due to ownership of the vehicle. In one count, the
plaintiff claimed We Rent Minivans was liable by virtue of giving the
defendant permission to operate one of its vehicles, with no allegation
of negligence against We Rent Minivans. The second count claimed
liability pursuant to Connecticut's vicarious liability statute. The
court bases its decision to grant the defendant's motions to strike the
two counts on the Federal preemption statute (49 U.S.C. Section 30106)
and on the decisions in Infante v. U-Haul of Florida and Piche v.
Nugent et al. (Enterprise Rent-A-Car).
Infante v. U-Haul of Florida--Supreme Court--Queens County, New York
Positive Decision
On January 18, 2006, Judge Augustus Agate granted U-Haul's motion
to dismiss this case ruling U-Haul of Florida was not the titled owner
of the vehicle involved in the claim. However, the judge went further
in his decision to clarify that regardless of the issue of the
defendant not owning the vehicle, the plaintiff's claim was invalid
based upon the enactment of the ``Graves Amendment'' prohibiting
vicarious liability against owners of rented and leased vehicles and
its preemption of state laws, including New York's, that previously
permitted it. According to U-Haul, this case is not expected to be
appealed.
Piche v. Nugent et al. (Enterprise Rent-A-Car)--U.S. District Court--
District of Maine
Positive Decision
On September 30, 2005, Judge Margaret J. Kravchuk affirmed the
effectiveness of Federal law (49 U.S.C. Section 30106) preempting state
vicarious liability statutes, even though this case was filed prior to
enactment of the Federal law and was not affected by it. The judge
denied Enterprise's motion for summary judgment centering on whether
the law of Maine, which includes statutory vicarious liability, or the
law of New Hampshire which does not, would be applicable to this case.
In her decision, the judge stated that the question at hand ``is not a
question likely to repeat itself in the future. On August 10, 2005,
President Bush signed into law . . . SAFETEA-LU.'' She further explains
that the ``law amends U.S. Code Title 49, Chapter 301 to preempt state
statutes that impose vicarious liability on rental car companies for
the negligence of their renters . . . Thus, the long-term policy debate
has been resolved by the Federal Government.''
______
To: Truck Renting and Leasing Association (TRALA)
From: Mark A. Perry, Gibson, Dunn & Crutcher LLP
Date: September 24, 2010
Re: Historical and Legal Analysis of the Graves Amendment
Client: T 26297-00082
In 2005, Congress enacted the Graves Amendment as part of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users, Pub. L. No. 109-59, 119 Stat. 1144 (2005). The Amendment
provides, in relevant part, that ``[a]n owner of a motor vehicle that
rents or leases the vehicle to a person . . . shall not be liable under
the law of any State or political subdivision thereof, by reason of
being the owner of the vehicle . . . for harm to persons or property
that results or arises out of the use, operation, or possession of the
vehicle during the period of the rental or lease,'' provided that
``there is no negligence or criminal wrongdoing on the part of the
owner.'' 49 U.S.C. 30106(a), (a)(2).
The Amendment is but one of the most recent in a long line of
statutes--dating back to the dawn of the Republic--in which Congress
has regulated the instrumentalities of interstate commerce by creating
a uniform Federal standard. In each instance, Congress determined that
a nationwide rule would benefit interstate commerce by lifting local
restrictions and providing participants in the industry (such as rental
car or truck companies) with certainty about the governing law. Also,
in many cases, Congress determined that it was in the Nation's best
interest to reduce or eliminate certain forms of liability, where
liability would be unfair or place unnecessary burdens on interstate
commerce.
The Graves Amendment serves both of these salutary purposes. First,
it establishes a Federal rule of liability, which allows owners of
motor vehicles to run their businesses and use the Nation's roads free
from the costs of identifying and complying with a patchwork of state-
by-state regulation. Second, it eradicated a particularly unfair and
onerous form of liability--vicarious liability for acts of negligent
drivers that the motor vehicle owner could not have anticipated and
were beyond its control.
Congress did not make this policy decision lightly; rather, members
of both houses explained that the statute struck the correct balance
between Federal and state regulation, and appropriately limited
liability to cases where the motor vehicle owner was actually at fault.
In short, Congress considered these issues the first time and got it
right; it need not revisit the issue now.
Discussion
I. Throughout Our Nation's History, Congress Has Regulated Modes Of
Transportation--Including By Displacing State Rules Of Conduct
And Liability
Under Article I, Section 8, of the U.S. Constitution, Congress has
the power to ``regulate Commerce with foreign Nations, and among the
several States, and with the Indian tribes.'' The same section provides
Congress with the authority to ``make all Laws which shall be necessary
and proper for carrying into Execution'' its power over interstate
commerce. Finally, the Supremacy Clause provides that ``the Laws of the
United States . . . shall be the supreme Law of the Land . . . any
Thing in the Constitution or Laws of any State to the contrary
notwithstanding.'' U.S. Const. art. VI.
From the time of the Founding, Congress's commerce power has been
understood to include the authority ``to regulate and protect the
instrumentalities of interstate commerce.'' United States v. Lopez, 514
U.S. 549, 558 (1995) (emphasis added). That power, coupled with the
power to displace state laws pursuant to the Supremacy Clause,
necessarily extends to the removal of state burdens on modes of
transportation. As shown below, Congress has often exercised these
powers to facilitate interstate commerce by imposing a uniform Federal
rule.
Ships and Waterways. In the Eighteenth Century, when the
Constitution was drafted and ratified, the navigable waters were the
principal channels of interstate commerce. The First Congress,
therefore, enacted several measures that promoted interstate commerce
by removing obstacles to the flow of water transportation.\1\ In a
famous early example, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824),
the Supreme Court upheld the Federal Government's power to license
steamboats to navigate on the Hudson River--even though New York had
enacted a local prohibition against such navigation.
---------------------------------------------------------------------------
\1\ See, e.g., Act of Sept. 1, 1789, ch. 11, 1 Stat. 55 (1789)
(providing for registration or enrollment of ships belonging to U.S.
citizens); Act of July 20, 1790, ch. 29, 1 Stat. 131, 131-35 (1790)
(guaranteeing merchant seamen prompt payment of wages, and adequate
medicine and food); Act of Mar. 2, 1819, ch. 46, 3 Stat. 488 (1819)
(limiting number of passengers that could be carried on ships).
---------------------------------------------------------------------------
Congress continued to exercise power over the waterways throughout
our history. Notably, in 1851, Congress enacted a statute similar to
the Graves Amendment that limited the liability of ship owners for
losses that were not the owner's fault. Act of Mar. 3, 1851, ch. 43, 9
Stat. 635 (1851). In two cases upholding this law from constitutional
challenge, the Supreme Court remarked that it was appropriate for the
Federal Government to limit liability in this way: ``Navigation on the
high seas,'' the Court stated, ``is necessarily national in its
character.'' Lord v. Steamship Co., 102 U.S. 541, 544 (1881). The Court
further noted that, if the law were administered fairly, ``with the
view of giving to ship owners the full benefit of the immunities
intended to be secured by it, the encouragement it will afford to
commercial operations . . . will be of the [highest] importance.''
Providence & N.Y. Steamship Co. v. Hill Mfg. Co., 109 U.S. 578, 589
(1883). The Graves Amendment today plays a similar beneficial role--it
encourages interstate commerce by eliminating a particularly onerous
form of state liability.
Trains and Railways. In the Nineteenth Century, railroads gradually
replaced waterways as the principal channels of interstate commerce.
Federal regulation of the railways soon followed.\2\ As was true in the
shipping industry, the railroad statutes ``were passed under the power
vested in Congress to regulate commerce among the several States, and
were designed to remove trammels upon transportation between different
States, which had previously existed, and to prevent the creation of
such trammels in [the] future.'' R.R. Co. v. Richmond, 86 U.S. 584, 589
(1873).\3\
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\2\ See Act of June 15, 1866, ch. 124, 14 Stat. 66 (1866)
(authorizing all steam-based railroad companies to carry passengers
interstate); Act of July 25, 1866, ch. 246, 14 Stat. 244 (1866)
(permitting construction of bridges over the Mississippi River).
\3\ Indeed, in the Nineteenth Century, the Supreme Court often held
that, even in the absence of Federal legislation, the commerce power of
its own force displaced state laws that burdened the instrumentalities
of commerce--such as ships or railroads. For example, the Supreme Court
struck down state fees on ship captains for passengers brought into a
state, invalidated state laws giving port officials the exclusive right
to inspect incoming ships, and declared unconstitutional state laws
forbidding the regulation of railroad rates. See David P. Currie, The
Constitution in the Supreme Court: The First Hundred Years 227-28, 405,
409, 412 (1985). Likewise, in Wabash, St. Louis & Pac. Railway Co. v.
Illinois, 118 U.S. 557 (1886), the Court held that the commerce power
prohibited states from enacting a law that regulated the rates for
railroad journeys within a state's borders. The reason for these
decisions was the hindrance that state laws imposed on the
instrumentalities of commerce.
---------------------------------------------------------------------------
Airplanes. In the Twentieth Century, Congress began to regulate
still newer means of transportation, including airplanes. Indeed,
because of the unique nature of air travel, Federal regulation is
necessarily pervasive and leaves even less room for state legislatures
to experiment and regulate. See Nw. Airlines, Inc. v. Minnesota, 322
U.S. 292, 303 (1944) (Jackson, J., concurring) (``Air as an element in
which to navigate is even more inevitably Federalized by the commerce
clause than is navigable water''). Accordingly, ``Congress has
recognized the national responsibility for regulating air commerce,''
and ``[f]ederal control is intensive and exclusive.'' Id. For example,
in the General Aviation Revitalization Act of 1994, 49 U.S.C. 40101,
Congress limited the exposure of aircraft manufacturers to state tort
liability. So too with the Graves Amendment.
Cars and Roadways. Motor vehicles, of course, are the primary
modern means of travel. From the very start of the automobile industry,
Congress has Federalized the regulation of the ownership and operation
of motor vehicles. Throughout the industry's history, it has been well-
established that state regulation of motor vehicles ``is . . .
subordinate to the will of Congress'' under the Supremacy Clause, and
can only stand ``[i]n the absence of national legislation covering the
subject.'' Hendrick v. Maryland, 235 U.S. 610, 622-23 (1915).
For example, in Buck v. Kuykendall, 267 U.S. 307 (1925), and George
W. Bush & Sons Co. v. Maloy, 267 U.S. 317 (1925), the Court invalidated
state laws that required operators of common carriers conducting
business in interstate commerce to obtain a special license to operate
within the state. The Court held, among other things, that the
legislation conflicted with the Federal Highway Act, through which
Congress had intended ``that state highways shall be open to interstate
commerce.'' Bush, 267 U.S. at 324.
Later, the Motor Carrier Act of 1935 inaugurated comprehensive
congressional regulation of safety standards for motor vehicles. It
required motor carriers to maintain continuous and adequate service and
keep sufficient records; established maximum hours-of-service
requirements; and regulated rates. See Clyde B. Aitchison, The
Evolution of the Interstate Commerce Act: 1887-1937, 5 Geo. Wash. L.
Rev. 289, 394-99 (1937). Federal motor vehicle regulation has become
even more pervasive since then. In 1966, Congress enacted the National
Traffic and Motor Vehicle Safety Act of 1966 and the Highway Safety Act
of 1966, Pub. L. No. 89-563, 80 Stat. 718 (1966); Pub. L. No. 89-564,
80 Stat. 731 (1966), which created the predecessor entities to the
National Highway Traffic Safety Administration. Those enactments
established, among other things, extensive Federal regulation of safety
standards for motor vehicles and highways; today, their successor
statutes permit the Federal Government to dictate such criteria as, for
example, the length and width limits for vehicles. See, e.g., 49 U.S.C.
31111.
As was true for ships, trains, and planes, Congress exercised its
authority over the Nation's highways to displace inconsistent state
standards. In 1987, for example, Congress enacted a law excluding
certain evidence from admission in state trials that state governments
were required to collect to comply with Federal laws designed to
identity and evaluate hazardous conditions on federally funded roads.
Although the Federal law supplanted state rules of evidence, the
Supreme Court upheld it from constitutional challenge, finding it
reasonable for Congress to believe that exclusion of such evidence
``would result in more diligent efforts to collect the relevant
information, more candid discussions of hazardous locations, better
informed decisionmaking, and, ultimately, greater safety on our
Nation's roads.'' Pierce County v. Guillen, 537 U.S. 129, 147 (2003).
The Graves Amendment, of course, is yet another recent example of
Congress adopting a Federal standard to govern participants in the
transportation industry--owners of motor vehicles--and displace
burdensome state laws. As it did with earlier statutes, Congress
carefully weighed the benefits and drawbacks of Federal legislation in
this area, and determined that eliminating vicarious liability, while
preserving liability for fault, was in the Nation's best interests. It
was by no means an unusual exercise of Congressional power. To the
contrary, it was a paradigmatic example of Congress's authority to
facilitate interstate commerce by adopting a fair, nationwide rule.
II. The Courts Have Rejected Challenges To The Graves Amendment
The appellate courts have consistently rejected constitutional
challenges to the Graves Amendment, recognizing that the Amendment
falls squarely within Congress's power under the Commerce Clause. The
leading case is Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242
(11th Cir. 2008).
Garcia was a Florida wrongful death suit, brought on behalf of car
accident victims against Vanguard, which leased the vehicle to the
driver who caused the accident. See id. at 1245. Vanguard, which
admittedly was not at fault for the accident, successfully argued that
the Graves Amendment precluded holding Vanguard vicariously liable for
the alleged negligence of the driver. See id. Plaintiffs in turn argued
that the Amendment could not be enforced, because it supposedly
exceeded Congress's power under the Commerce Clause. See id. at 1249.
The Eleventh Circuit rejected plaintiffs' challenge and upheld the
Amendment's constitutionality, because the statute has a substantial
effect on interstate commerce. See id. at 1253. The Court concluded
that Congress acted reasonably in enacting the Graves Amendment to
reduce burdens on interstate commerce:
Congress rationally could have perceived strict vicarious liability
for the acts of lessees as a burden on [the rental car] market. . . .
The reason it could have done so is that the costs of strict vicarious
liability against rental car companies are borne by someone, most
likely the customers, owners, and creditors of rental car companies. If
any costs are passed on to customers, rental cars . . . become more
expensive, and interstate commerce is thereby inhibited. Moreover, if
significant costs from vicarious liability are passed on to the owners
of rental car firms, it is possible that such liability contributes to
driving less-competitive firms out of the marketplace, or inhibits
their entry into it, potentially reducing options for consumers.
Id. at 1253.
These observations echoed the statute's legislative history, which
noted Congress's concern with litigation costs driving rental car
companies out of the market or forcing them to pass costs on to their
consumers. See id. at 1253 n.6. As explained above, the statute was
also consistent with Congress's longstanding role in regulating modes
of transportation and eliminating burdens on interstate commerce. For
these reasons, many Federal and state courts have agreed with Garcia,
and upheld the Graves Amendment from constitutional attack.\4\
---------------------------------------------------------------------------
\4\ See also Dupuis v. Vanguard Car Rental USA, Inc., 510 F. Supp.
2d 980 (M.D. Fla. 2007); Jasman v. DTG Operations, Inc., 533 F. Supp.
2d 753 (W.D. Mich. 2008); Flagler v. Budget Rent A Car Sys., Inc., 538
F. Supp. 2d 557 (E.D.N.Y. 2008); Seymour v. Penske Truck Leasing Co.,
No. 407CV015, 2007 WL 2212609 (S. D. Ga. July 30, 2007); Graham v.
Dunkley, 852 N.Y.S. 2d 169 (App. Div. 2008).
---------------------------------------------------------------------------
III. Congress Adopted The Graves Amendment After Due Deliberation, And
Had Sound Policy Reasons For Doing So
As an appropriate use of Congress's power, the Graves Amendment is
a carefully calibrated policy decision whose purpose was to limit the
liability of motor vehicle owners to those cases where the owner is
actually at fault. As noted in Garcia, the legislative history of the
Amendment confirms that Congress made a conscious decision to create a
Federal rule of liability that would lower litigation costs for vehicle
rental companies and to differentiate between meritorious and frivolous
lawsuits.
Several Members of Congress explained that the purpose of the
Graves Amendment was to ``establish a fair national standard for
liability.'' 151 Cong. Rec. H1034-01 (daily ed. Mar. 9, 2005)
(statement of Rep. Blunt), 2005 WL 556038 (Cong. Rec. 2005), at *H1200;
see also id. at *H1202 (statement of Rep. Smith) (purpose of Graves
Amendment is to create a ``national standard''). Moreover, Members of
Congress from both houses, including the bill's sponsor, explained that
they were adopting a rule that was fair both to motor vehicle owners
and accident victims: It would eliminate liability for actions where
the motor vehicle operator was not actually at fault, but leave state
actions for negligence (e.g., negligent maintenance) intact. See id. at
*H1200 (statement of Rep. Graves) (``I want to emphasize, I want to be
very clear about this, that this provision will not allow car and truck
renting and leasing companies to escape liability if they are at
fault''); id. at *H1202 (statement of Rep. Smith) (``The Graves[ ]
amendment . . . provide[s] that vehicle rental companies can only be
held liable in situations where they have actually been negligent. This
amendment in no way lets companies off the hook when they have been
negligent''); 151 Cong Rec. S5433-03 (daily ed. May 18, 2005)
(statement of Sen. Santorum), 2005 WL 1173802, at *S5434 (``This
provision is a common sense reform that holds vehicle operators
accountable for their own actions and does not unfairly punish owners
who have done nothing wrong'').
Congress was also aware that vicarious liability could have a
deleterious effect on the transportation industry and the American
economy as a whole. Therefore, it acted accordingly to remove this
burden on interstate commerce. As one Senator noted, ``[t]hough only a
few States enforce laws that threaten nonnegligent companies with
unlimited vicarious liability, they affect consumers and businesses
from all 50 States.'' 151 Cong Rec. S5433-03 (statement of Sen.
Santorum), 2005 WL 1173802, at *S5433. ``Vicarious liability means
higher consumer costs in acquiring vehicles and buying insurance and
means higher commercial costs for the transportation of goods. Left
unreformed, these laws could have a devastating effect on an increasing
number of small businesses that have done nothing wrong.'' Id. As
explained above, this reasoning is consistent with Congress's
historical and vital role in regulating the modes of transportation and
removing state impediments to the flow of interstate commerce.
Finally, Congress plainly did not anticipate that states would have
no role to play in holding motor vehicle owners accountable for harm
caused by their vehicles. To the contrary, as noted above, states could
still impose liability when the vehicle owner acted negligently.
Moreover, the Graves Amendment expressly saves from preemption any
state law that, for example, ``impos[es] financial responsibility or
insurance standards on the owner of a motor vehicle for the privilege
of registering and operating'' the vehicle. 49 U.S.C. 30106(b)(1).
``Under this provision, States would continue to determine the level of
compensation available for accident victims by setting minimum
insurance coverage requirements for every vehicle.'' 151 Cong Rec.
S5433-03 (statement of Sen. Santorum), 2005 WL 1173802, at *S5433.
Thus, the Graves Amendment envisions a critical role for the states to
play in setting minimum insurance requirements for motor vehicle owners
to ensure that accident victims are properly compensated.
Conclusion
In enacting the Graves Amendment, Congress acted pursuant to its
historical authority to regulate interstate commerce, particularly the
instrumentalities of commerce, and displace state laws in favor of
Federal rules that are both uniform and fair. The courts have
recognized the legitimacy of the enactment. As the Amendment's
legislative history reveals, Congress acted with due deliberation and
struck the appropriate balance: The law helps to protect businesses
from unnecessary litigation and consumers from added costs, limits
liability to cases where a motor vehicle owner is at fault, and allows
states to continue to set insurance requirements to ensure accident
victims are fairly compensated for their injuries.
Senator Pryor. Thank you.
I have a few questions, here.
Mr. Ruby, let me start with you. And I don't want to get
too personal, but, since you're here, let me ask you about your
case. When you were injured, I assume you filed a lawsuit, or
did you just settle without having to file a suit?
Mr. Ruby. We tried to settle, numerous times. It was forced
to a lawsuit and to go to trial.
Senator Pryor. And did you actually go to trial?
Mr. Ruby. Yes, we did.
Senator Pryor. And do you recall how many defendants there
were in that suit? Because, oftentimes, on something like that,
you may sue the--weren't there two vehicles involved?
Mr. Ruby. There were two vehicles involved, correct.
Senator Pryor. So, sometimes you'll sue the driver of each
vehicle, and maybe the--you know, the rental car company, or--
can you tell us, do you remember who got sued in that?
Mr. Ruby. The driver of the Budget Rent A Car was the one
who ran the red light, so they were the target. The other car
that was involved in the accident was also injured during the
accident by the Budget Rent A Car.
Senator Pryor. And do you remember if you recovered from
Budget Rent A Car or from the driver of that car, or from both?
Do you remember?
Mr. Ruby. There was a minimum of--the driver, who had no-
fault that--their insurance company did pay. I believe that
covered the Tylenol from my being in intensive care. The other,
the driver of the Budget car, was the focus of our lawsuit----
Senator Pryor. OK.
Mr. Ruby.--since they were the ones responsible.
Senator Pryor. And do you know if you recovered from the
driver and from Budget?
Mr. Ruby. The driver of the car, as I said before, had
warrants out for his arrest for driving--for speeding. Under
further investigation, he had just become a legal citizen,
although he had been living here for almost a decade. He had no
personal resources whatsoever.
Senator Pryor. Did he have insurance? He was uninsured?
Mr. Ruby. Not to my knowledge, no.
Senator Pryor. All right. Well, that's helpful, and I
appreciate it.
Let me--gosh, there are lots of questions here, and I know
Senator Nelson wants to ask a few, too, but let me dive in,
here.
Mr. James, I know that you--sort of in your day job, you
represent more of the truck-leasing part of the industry. And
today we talked a lot about rental cars, and this may not be
really your forte, but it seems to me that there's a difference
in the truck leasing industry versus rental cars. Seems like
there are a lot more cars rented to just the general public;
whereas, with trucks, there--you may have a smaller volume of
people, and, in some cases, you would have very well-trained
drivers with CDLs, et cetera. Do you see a distinction
between----
Mr. James. I see--I certainly see differences in volume,
but I also see a lot of similarities. And again, what we're
talking about here is, we're talking about owners of rented and
leased vehicles. That does include car rental companies, it
includes the big car rental companies. Also on that list, we
have the American Car Rental Association, which represents all
of those small mom-and-pop companies. The larger companies
don't have their own trade association.
But, the similarities are, just as in truck leasing--a
truck lease, an average lease is probably 5 years. We lease out
a truck of any size to a business, business-to-business, for
about 5 years. We're still responsible for the maintenance of
that vehicle, for putting that vehicle on the road and keeping
it a safe vehicle.
Same with the car rental companies. The car rental
companies are responsible for providing safe vehicles for use
on our highways.
This also affects the auto leasing. I know I lease my
Volkswagen, rather than buy it. It affects business-to-business
auto leasing. A lot of businesses lease their fleets.
So, the general distinction between the owner of the
vehicle not being--having any training or agent affiliation
with the operator of the vehicle, I think, is the same in all
cases. It's just a matter of--the terms of how long that
vehicle is let out differs between the various segments of the
industry.
Senator Pryor. So, when your members lease vehicles to,
say, companies that need various vehicles for various reasons--
I assumed that the standard contract might be that only certain
drivers could drive those vehicles.
Mr. James. Well, when we lease out a truck--if we lease out
a truck to Wal-Mart, for instance--a lot of retailers rent
trucks for their fleets, and they also rent trucks or lease
trucks to make up for peak periods of demand.
Senator Pryor. And they would require probably a CDL?
Mr. James. Sure. It's--and that's all in a business-to-
business contract. We require that any driver of the truck meet
that motor carrier's safety plans. So, again, the motor carrier
is responsible for hiring their drivers, for ensuring that
their drivers have active CDLs.
You know, when a company comes to pick up a leased truck,
that truck may be driven by 20 drivers. Once that truck goes
into that motor carrier's hands, even under the FMCSA
guidelines, that--if that truck is in their hands over 30 days,
they are considered the owner of that vehicle for all purposes
of operating it.
Senator Pryor. Has the Graves Amendment caused any change
to occur in your industry? I'm not talking about the rental-car
part, but the truck leasing industry.
Mr. James. Absolutely?
Senator Pryor. In what? What----
Mr. James. Well, insurance premiums have gone down. HARCO
is one of the biggest commercial insurers. They're--and they've
strongly supported the passage of the Graves law. But,
insurance rates, their contingent liability rates dropped by 20
percent.
But, even more importantly than that--I can speak in
anecdote without telling the company's name--there was a bid-
up, by the State of New York, for 500 utility trucks. That's a
pretty big contract. And one of my member companies turned that
contract down. That was a chance for the State of New York to
have a leased fleet that they didn't--they could outsource the
maintenance on, they would have a fixed transportation cost on
that fleet, and they wouldn't have to tie up State capital in
acquiring that fleet. New York didn't get that opportunity, and
my member didn't get the business, because of the vicarious
liability risk in New York State.
Senator Pryor. Mr. Leesfield, let me follow up on something
that Mr. James said in his opening statement, and I'm curious
about your view on this. Mr. James said that all the vehicles
are covered by some insurance, even under the Graves Amendment,
because there are other applicable laws that would require
these leasing companies to maintain their vehicles and carry
insurance on their vehicles. And so, basically, as I understand
Mr. James' testimony said, they're basically all insured, one
way or the other. Do you agree with that? And, if that's so,
or--you know, what difference does that make?
Mr. Leesfield. Well, it's not so, Mr. Chairman, because of
the vehicles that--many vehicles and many drivers are either
uninsured, completely, when they purchase their rental car
contract, or they're underinsured. Having $10,000 of insurance
is the substantial equivalent today of having no insurance. I
can assure you that a renter, who travels to Florida from
Venezuela and rents a car at any of the airports or any other
stations, does not have insurance in Venezuela, and, if they
cause an injury here and they go back to Venezuela, or any
other country, there is absolutely no recourse whatsoever. It
is not like a private citizen, who lives in Florida, who you
can have some recourse against.
There is no enforcement of either insurance requirements or
driving standards. What's happened--and I think the Chairman
hinted--hit upon this at the--earlier on--if there's no
enforcement, if there's no corporate responsibility, if we give
anybody total immunity, safety is going to pay the price. So,
there is no looking up the driver's record to see if the driver
has 30 infractions for drunk driving, reckless driving. None of
that exists today. It did exist when the corporation that was
responsible for the vehicle--and this is not a foreign notion.
If a trucking company employs a trucking driver, and that
trucking driver is negligent and causes catastrophic injuries,
the trucking company is responsible. The trucking company
didn't drive the truck, they only hired Mr. Jones. Mr. Jones
was negligent, and he injured somebody severely. This is not a
foreign notion.
The availability of insurance to the rental car industry is
a matter, I think--I think this gentleman is correct--their
premiums went down. There is no question that this is a profit-
motive-driven idea. Their premiums did go down, Mr. Chairman.
But, at what cost? Who picked up the tab for their premiums
going down? Well, it's the U.S. Government, through Medicare,
through Medicaid, through Social Security, and it's everybody
else, every county government, every State government, and
individuals, who--insurance--who have to pay for their profit.
This is a question of shifting of who can most afford, as a
matter of policy and a matter of--in Florida, of 90 years of
common law, and, up until Graves, 6 years of statutory law.
Florida, Governor Bush, and the Republican legislature of
Florida looked at the law and said, ``We don't want to have
unlimited recovery, we want to have limited recovery.'' So,
they passed Chapter 324. That's what the State experiments have
to be with this issue of rental car liability.
To pass an overall immunity, 100 percent immunity, yes, it
saves money for the industry, but it does a horrible disservice
to the citizens and to the governments that have to pay for it.
Senator Pryor. Mr. Leesfield, let me ask one more question,
and I'm going to turn it over to Senator Nelson, here, in just
one moment. But, do you see a distinction between, you know,
your average rental car company and then some of these truck
leasing companies that Mr. James represents in his day job--not
to single out any company specifically--but do you see a
distinction there, or are they one and the same?
Mr. Leesfield. No, sir, there's a very clear distinction.
The rental car companies are domestic corporations who have
domestic drivers; they don't have people coming from overseas
who don't know the rules of the road; they're not renting to
people from countries that drive on the other side of the road
or with different customs. They're renting to people with long-
term leases.
Anybody can rent a car. Anybody can rent a car. You need a
credit card, which could be valid or invalid, and a driver's
license, which could be valid or invalid. In our State, and
many other States, we have people--we'll just call them
``marginal people''--don't want to cast any aspersions here--
who go in and rent a car to do their ``marginal business,''
and, in the course of doing that, injure innocent people.
There is a very clear distinction between a commercial
truck rental and a--millions and millions of people, coming
from all over the world, renting cars.
Senator Pryor. Senator Nelson?
Senator Nelson. Mr. Chairman, I want to thank you for
having this hearing.
And I think you all have fleshed out a lot of the things,
here, that I wanted to get on the record.
And, Mr. James, I want you to know that I am a big fan of
the rental companies. And since my daughter got married this
summer, my wife drove the largest Penske rental truck from
Washington, D.C. to Florida, to get her set up. And so, I can't
say enough good things about the treatment that I get, in the
kind of bifurcated life that we live, where we live in
Washington and we live in Florida, as well.
Now, you heard my opening statement. And part of that was
being repeated here by Mr. Leesfield. Mr. Ruby, a pedestrian--I
just attended the funeral for a retired admiral, a friend of
Jim Tooey, who's in the office--in the audience here, with us--
the son of the late great Governor Leroy Collins. And he was
out for his morning bike ride, had stopped, and--at a traffic
light; the traffic light turned green, and he got on his bike,
and he went across; and the car; who had stopped, turned and
didn't see him. And we went to his funeral. Now, he's a retired
admiral, and his family is--all his children are grown, and his
widow is taken care of. But, if that had been a young person
with a big family, and there's no recourse, it puts it in a
little different situation.
You take--for example, I said this in my opening comments,
that the Republican Governor of Florida, Governor Bush, with a
Republican legislature, took on tort reform and wanted to put
caps on things. And, with regard to this issue, they put caps
at $500,000 for damages and $100,000, in Florida law, for pain
and suffering.
Now, because Florida is unique--I've described it, Mr.
Leesfield has described it--we have these millions of visitors
coming to Florida, and most of them are--not ``most of them''--
a good percentage of them are from out of the country. And so,
to be able to recover from the damage that they have caused
leaves, folks like Mr. Ruby under the present law, without
recourse, with the ultimate result that, if they are insolvent,
it's going to be Medicaid, which is the State taxpayer and the
Federal taxpayer, or disabled, under the Medicare laws; then
it's the Federal taxpayer. And it seems like that we need to
balance this.
Now, how did the Graves Amendment get passed? It was back
in the early part of this decade, and there was a partisan role
to stick it to the trial lawyers. In every opportunity, there
was an attempt. And this was on the big highway bill. And it
got lost in all the noise. There was a recorded vote in the
House that was almost a party-line vote, but apparently the
Senate receded to the House amendment--meaning the overall
bill, with its overall amendments--at the urging of the White
House.
And it seems to me--and I say this sincerely, because I'm a
great fan of the industry that you represent--it seems that we
have to take into consideration different circumstances and
that you can't broadbrush something like this. And then, that's
what I come back to, that that's the genius of State
sovereignty and State law: to adapt to their individual
circumstances. And I underscore the fact it was a Republican
Governor with a Republican legislature that put those limits,
but recognized there was a reason to have that in Florida.
So, Mr. Chairman, I just want to state that again for the
record. Obviously, we're not getting anything done in the next
few weeks. But, I want to thank you for having this hearing so
that we could air this issue. And let's talk in the future.
Mr. James. Senator, I'd be very happy to talk in the future
about this. It's obvious--you know, with all due respect, I'd--
all vehicles are covered by insurance. Maybe some drivers
aren't, but all vehicles are. But, just this discussion has
shown that maybe there are some more facts that need to be
aired, put on the table; and I'd be happy to engage in those
discussions. I think this hearing is a very valuable one, and I
appreciate you giving me the opportunity to testify. But, I
think there are a lot of aspects to this issue--the broadness
of its impact on commercial transportation, as well as consumer
choice, car rental, the laws that car rental companies are
under, in which they have to rent to certain individuals if a
basic level of eligibility is met--I think those are all--I
think it's a very unique situation, given the interstate nature
of our fleet, and I'd be happy to engage in more discussions,
and I appreciate this opportunity to do so.
Senator Pryor. Right.
Senator Nelson. Thank you.
Senator Pryor. Thank you, Senator Nelson. It's always good
to have you here. Good statement.
Let me ask Mr. James and Mr. Leesfield just one, really,
last question, and that is--I am curious about statistics--if
you all have any sort of statistics, in terms of how frequent
are these accidents, where, you know, maybe a rental car
company, and someone is from overseas or someone is uninsured,
you know, doesn't have any assets, you know, whatever that
situation may be--and I'm just curious, if there is--if there
are any statistics that lay out the impact of the Graves
Amendment and, kind of, the scope of the problem. Are--do you
have any of those type statistics, Mr. James?
Mr. James. Well, a lot of these cases are settled; and, due
to those settlements, there's not a lot of information. We have
information on some of the larger cases, many of which have
been in Florida, both under Florida courts and U.S. district
courts. We've also gone through one heck of an economic
recession. So, any sort of business statistics, I think would
be heavily skewed by all the other factors that are out there.
But, you know, we'll certainly get whatever statistics we can
put together----
Senator Pryor. Yes.
Mr. James.--about the impact, and get back to the Committee
on that.
[The information referred to is contained in the appendix.]
Senator Pryor. That'd be help.
Mr. Leesfield, do you have any?
Mr. Leesfield. Mr. Chairman, there are statistics available
supplementing common sense. The rental car driver, unfamiliar
with the road, unfamiliar with the rules of the road, often
visiting, is a much more distracted and difficult driver, in
terms of the number of accidents. Our practice, in what I've
seen both in teaching and interacting with others, would verify
that.
I don't know what statistics Mr. James has, because, since
2005, in the passage of the Graves Amendment, there have been
zero settlements, because there's no reason for the rental car
industry to settle a single case if they have absolute immunity
by the Graves Amendment. So, for 5 years now, there is no--
there's an industry that has 100-percent protection, a rather
unique situation.
So, I don't know what the settlement statistics are. I can
tell you, beforehand, of the rental car industry. If they were
a solvent company, which most of them are--and I gave you the
statistics for that, in spite of the mom-and-pop argument,
that, in fact, it's consolidation of the industry. And--the
only statistic I saw is when I came in and looked at a--the
rental car agency, and I saw there was a $6 refueling charge
per gallon for gas. And I thought that was interesting
statistic, that the $3 profit on that could pay for all the
insurance for all the injured people like Ethan Ruby. There's 6
bucks to refuel your car. Seems to me there's a whole lot of
profit in that. And I'm not against profit, either. I think
profit is wonderful. I'm glad they're making a profit. I just
don't think the taxpayers and the individual citizens should
make them more profitable than they already are.
Senator Pryor. Well, I want to thank all of you all for
being here. It's helpful for the Subcommittee and for the full
Committee to get your testimony. And any sort of statistics or
studies, whatever you also want to send in, we would definitely
review those.
We're going to leave the record open for an additional 2
weeks. We anticipate that some of our colleagues will have
further follow-up questions--I have a few, myself--that we
could follow up on.
But, I want to thank all three of you all for being here;
especially you, Mr. Ruby. Thank you for making the effort.
Mr. Ruby. With permission, I'd just like to add----
Senator Pryor. Sure.
Mr. Ruby.--one more.
Senator Pryor. Sure.
Mr. Ruby. First of all, I would like to say that if the
substance of the Graves bill did have merit, it would not have
been snuck in at 2 o'clock in the morning, right before the
larger bill was passed.
And to dispel some of the myths of these numbers that we're
talking about, $9 million or $7 million, or, in my case, a
little bit more than that, I'd like, just briefly, to
understand just how expensive it is to live in a wheelchair. It
costs me $1,000 a month just to pee. Just to pee. I will never
be able to teach my son how to play soccer, or run on the beach
with him. And I would give a $100 million to have that ability
back.
If I want to travel, in order to sit in coach, I have to
literally hold myself up, the entire flight, because I have no
abdominal control. So, should I pay the $300 and sit and
suffer, or should I pay the little bit of extra money to be
able to sit in first class? That is not a luxury. I do not live
a life of luxury. I live a life of survival.
The amount of money it costs yearly to live--physical
therapy, doctors, preventative care--the first person that they
put on the stand to testify said that my life will be decreased
by 10 years, therefore they shouldn't have to pay the full
amount of pain and suffering of a normal life. That's the
concession.
My--I do--the money that I have is to be able to live my
life on a bare level. It is not to live extravagantly. I drive
a Volvo. My wife and I share a Volvo that's 10 years old. It is
to survive.
And the pain and suffering goes on another level. The money
is to survive and to be able to live and have a chance at life.
It is nothing more.
Senator Pryor. Well, thank you.
Mr. Ruby. Thank you.
Senator Pryor. And again, thank you for being here.
And thank all three of you for being here today, and all of
our previous panel witnesses, as well. We appreciate your time
and the effort it took to be here and to prepare.
And, like I said, we'll leave the record open for 2 weeks.
And this hearing is now adjourned.
Thank you.
[Whereupon, at 1:14 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. John D. Rockefeller IV,
U.S. Senator from West Virginia
Thank you, Senator Pryor, for holding this important hearing. A
major focus of our Committee's work this year has been on oversight of
the National Highway Traffic Safety Administration (NHTSA) and
legislation to improve vehicle and highway safety.
The Committee has so far passed two critical motor safety bills--
the Motor Vehicle Safety Act of 2010 and the Distracted Driving
Prevention Act. Both bills will help protect drivers, and prevent
fatalities--and I will continue to work to bring both of these bills to
the floor.
Today, our focus is on the Federal and state safety programs
authorized by Congress in SAFETEA-LU and administered by NHTSA. NHTSA
Administrator David Strickland appeared before this Committee earlier
this year, and I'm pleased to welcome him back today to share his
thoughts on SAFETEA-LU and its results.
As we all know, one of the ways NHTSA makes our roads safer is by
improving driver behavior. Every year, NHTSA distributes more than $500
million in grants to states as an incentive to pass strict safety laws,
and to pay for enforcement, education, and other efforts to promote
safety.
Congress has directed the use of these funds to push states to
enact primary enforcement laws on seat belt usage, promote the use of
child safety and booster seats, and create harsh sentences for repeat
drunk driving offenders. And we've seen real results. According to the
latest data, the vast majority of drivers now use their seat belts,
drunk driving has declined, and our roads are getting safer. However,
there is still more to be done.
As we prepare for the next reauthorization of SAFETEA-LU, we need
to carefully consider whether the programs and grants funded through
SAFETEA-LU are being used as effectively as possible. We also need to
ask whether there are new programs that need to be funded, or new
safety concerns that need to be addressed.
One emerging safety issue I have focused on during my time as
Chairman is distracted driving. Blackberries and cell phones have
become commonplace. In this Internet-driven decade, everyone is trying
to do more at once. As a result, people are typing while driving,
talking while driving, and texting while driving. This behavior isn't
just foolish--it's dangerous and deadly.
In 2009, approximately 5,500 people died in crashes involving
distraction and nearly 500,000 were injured. According to NHTSA, 16
percent of all motor vehicle crashes are caused by distracted driving.
Teen driving is another area of increasing concern. Motor vehicle
crashes are the leading cause of death for U.S. teens. In 2008, about
3,500 teens were killed in motor vehicle crashes. These drivers are
young and inexperienced, and they are too easily distracted. Several
states have adopted graduated driver's licenses. These programs delay
full licenses until teens have real-world experience behind the wheel,
prohibit teens from using any electronic communication devices while
driving, and limit the number of passengers they can have in their car.
I expect this Committee to further explore this issue to determine if
Federal input will continue to help save teen lives.
While we must deal with new and emerging issues, we must also
retain a laser-like focus on the lingering, but pressing issue of drunk
driving. Last week I met with Margie Sadler, a West Virginian who
volunteers with Mothers Against Drunk Driving (MADD). She works with
families that have lost loved ones in tragic crashes. Her heartbreaking
stories serve as a reminder to us all of the human cost of drunk
driving. I strongly support MADD's goal of eliminating drunk driving, I
honor their work, and will continue to do all that I can to advance
that goal.
The third panel before this Committee today will focus on vicarious
liability in the rental car industry. In 2005, as part of SAFETEA-LU,
Congress preempted all state laws that held rental car companies liable
for damages caused by drivers in their vehicles. Today we will hear
from a young man, Ethan Ruby, who was paralyzed at the age of 25 when
he was hit by a reckless driver in a rental car. Mr. Ruby has relied on
a settlement from the rental car company to pay his medical bills and
allow him to recover. If he had been hit by that same car after the
passage of the 2005 law, he would have been able to recover little or
nothing to pay for his care. This is an important issue worthy of
consideration by this Committee.
I want to thank our witnesses for appearing today to discuss these
important issues that affect the lives of so many Americans. Through a
continued focus on vehicle safety and highway safety, we can reduce the
number of deaths and injuries on our roads.
______
Prepared Statement of the National Automobile Dealers Association
Mr. Chairman, on behalf of the over 16,000 members of the National
Automobile Dealers Association (NADA) and its American Truck Dealers
(ATD) subsidiary, who employ approximately one million Americans, we
strongly oppose any effort to overturn the Graves/Boucher law, which
creates uniformity in interstate commerce by prohibiting states from
imposing vicarious liability on non-negligent owners of rented or
leased vehicles. The Graves/Boucher law does not prohibit states from
imposing minimum financial responsibility laws for vehicle owners in
each state, does not interfere with states' ability to impose minimum
insurance requirements, and does not exempt rental and leasing
companies from liability if they are negligent or otherwise at fault.
As the Subcommittee addressed the issue of vicarious liability during a
hearing on September 28, 2010, we respectfully request that our
statement be included in the hearing record.
Background
Support for passage of Federal vicarious liability reform gained
momentum in the late 1990s and early 2000s as the costs associated with
vehicle leasing and renting mounted in states such as New York and
Florida because of the frequency of massive judgments, attorney fees,
and increased supplemental insurance premiums. Members of Congress
became increasing sympathetic as lessors were faced with outrageous
exposure to liability when they had no control over the vehicle and did
not contribute in any way to an accident.
While not all states have vicarious liability laws, a Federal law
was needed because of the interstate nature of renting and leasing.
Companies in states without vicarious liability laws had to buy
supplemental insurance out of concern that either a lessee would drive
a vehicle to a state where such laws exist or that a court would apply
its vicarious liability laws in accident that occurred in another
state. For example, a court in New York applied New York's vicarious
liability statute in an action by New York and Ohio passengers against
a Pennsylvania lessor of a van and a New York employer of the lessee,
arising out of a collision that occurred on the employer's property in
Pennsylvania.\1\
---------------------------------------------------------------------------
\1\ Vasquez v. Christian Herald Ass'n Inc. 588 N.Y. S. 291,
N.Y.A.D. 1st Dept., 1992.
---------------------------------------------------------------------------
In 2005, Congress passed the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users, which included a
bipartisan amendment sponsored by Reps. Sam Graves (R-MO) and Rick
Boucher (D-VA) to create Federal uniformity and eliminate vicarious
liability laws that were adversely affecting interstate commerce.
NADA/ATD, as part of a larger coalition, supported passage of the
2005 vicarious liability reform law which simply requires that, in
order for a party to be held financially responsible for the
consequences of an accident, the party must actually be at fault. The
law does not exempt rental and leasing companies from liability if they
are negligent or otherwise at fault and does not exempt the company
from the minimum financial responsibility laws that apply to vehicle
owners in each state.
Under the existing Graves/Boucher law, the following safeguards
exist:
All renting and leasing companies are required to follow
state approved insurance coverage requirements.
Injured parties are compensated the same whether they are
injured by a rented or leased car, or a privately owned car.
Renting and leasing companies that are at fault can not
escape liability--the law does not excuse any lessor or rental
car company from liability for ``negligent entrustment'' nor
does it excuse any entity from responsibility for its
employees' negligence (under respondent superior).
States can still determine the level of compensation
available to injured parties by setting minimum financial
responsibility limits for all vehicles. The Graves/Boucher law
does not supersede any state laws that require insurance or
impose or allow any lower insurance requirements in any state
or on any class of vehicles or vehicle ownership.
The law does not protect renting and leasing companies that
are negligent in their renting and leasing practices or in
their maintenance or care of a vehicle.
Based on the experience of the auto and truck industry with
vicarious liability laws prior to enactment of the Graves/Boucher law,
repeal of the law would have a devastating impact by:
1. Making vehicle renting or leasing unavailable or
unaffordable for many consumers and small businesses not just
in vicarious liability states, but throughout the country.
2. Reinstating an antiquated and unfair policy that imposes
liability on lessors and rental companies based on ownership,
not control of the vehicle, negligence or fault.
3. Posing an immediate threat to car and truck leasing that
would hurt the automobile and truck industry as well as the
economy.
1. Repeal of the law would make vehicle renting or leasing
unavailable or unaffordable for many consumers and small businesses not
just in vicarious liability states, but throughout the country.
Vehicle leasing is popular for consumers and small businesses since
they benefit from both a low down-payment and smaller monthly payments.
Monthly payments on a lease are based on the lower total cost of
``owning'' the vehicle for the lease term of the vehicle, and not the
entire purchase price of the vehicle. Manufacturers commonly offer
aggressive incentives to leases that make them an attractive financial
option. Many consumers and small businesses rely on leasing as the most
efficient, and sometimes only, way to finance vehicles. This is
particularly true in Northeast states (especially New York), where a
high percentage of motor vehicles are leased.
The experience of staggeringly high vicarious liability verdicts in
the 1990s and early 2000s against leasing companies, banks, and most
auto manufacturers' captive financing arms resulted in these companies
pulling out of leasing in those states where unlimited lessor vicarious
liability existed.\2\ In addition, many small rental companies were
forced to close in New York.\3\ When these companies completely
withdrew from the leasing market, it left customers with few affordable
options to lease a new car or truck.
---------------------------------------------------------------------------
\2\ Approximately 19 lenders, such as the finance arms of General
Motors, Ford, Honda, as well as banks such as Chase Manhattan stopped
leasing in New York because of the increasing costs associated with
liability.
\3\ ``N.Y.'s Vicarious Liability Costly for Consumers and Auto
Dealers,'' Insurance Journal, July 19, 2004.
---------------------------------------------------------------------------
Because companies could not obtain insurance against vicarious
liability or because it became more expensive to do so, companies that
continued to lease cars raised their fees by several hundred dollars to
account for their liability under vicarious liability laws.\4\ Each of
the few brands that stayed raised acquisition fees to offset vicarious
liability risk, making leases much more expensive. (This was especially
true for smaller leasing companies.) In 2003 and 2004, 200,000 leasing
consumers were estimated to pay an average additional acquisition fee
of $524.88 each, or a total of $105 million more to lease a car in New
York due to the vicarious liability law.\5\
---------------------------------------------------------------------------
\4\ Bill Platt, ``Leasing a Chrysler or Mercedes Will Cost More in
Four States,'' Wall Street Journal, April 16, 2003.
\5\ Greater New York Automobile Dealers Association surveys.
---------------------------------------------------------------------------
The Graves/Boucher law was needed to ensure vehicle leasing was
maintained as an affordable option. Small business owners have
frequently stated that leasing is vital to their competitiveness and
ability to expand. Leasing allows businesses to avoid tying up capital
and credit lines that they could be using to expand and grow their
business. It allows the monthly costs for vehicles used for business
purposes to be ``expensed,'' rather than dealing with complicated
depreciation rules. The loss of leasing options or increased fees
prevents customers and small businesses from driving newer, safer, more
fuel efficient, and cleaner cars and trucks and expanding their vehicle
fleets.
2. Repeal of the law would reinstate an antiquated and unfair
policy that imposes liability on lessors and rental companies based on
ownership, not control of the vehicle, negligence or fault.
Vicarious liability for vehicle leasing was born out of an
antiquated law implemented when only the wealthy owned cars and most
had chauffeurs or livery drivers. The law was designed to keep the
wealthy from pushing liability onto their drivers. Injured parties
would then be able to seek damages from the vehicle owner, not the
driver. The law was not intend to impart liability on vehicle leasing
companies, which have no control over who drives a leased vehicle.
Lessor vicarious liability places an unjust and unjustified burden
on entities that have not violated any law or obligation and that have
not been negligent in any way. The lessors do not control the manner in
which a lessee--or the lessee's family or friends--operate a vehicle.
Also, vicarious liability does not appropriately apportion the cost of
an accident to the party that caused the accident.
One of the exceptions to the Graves/Boucher law is a claim under
negligent entrustment. Thus, if a leasing company or a rental company
``negligently entrusted'' a vehicle to the lessee, renter, or driver,
that lessor or rental company would be liable for damages in the event
of an accident. Claims for negligent entrustment will depend generally
on, ``the degree of knowledge the supplier of a chattel has or should
have had concerning the entrustee's propensity to use the chattel in an
improper or dangerous fashion.'' \6\
---------------------------------------------------------------------------
\6\ Muller v. Gilliard, 27 Misc.3d 1231(A), slip copy, N.Y.
Supreme, May 26, 2010.
---------------------------------------------------------------------------
For example, providing a vehicle to an intoxicated customer would
likely be deemed negligent entrustment, and would thus preclude the
application of the exemption from liability that is provided to a
rental company under the Graves/Boucher law. Similarly, providing a
rental vehicle to an unlicensed driver would likely result in holding
the rental company liable in the event of an accident.
Merely renting or leasing a vehicle to a consumer or lessee who has
an accident or whose family member subsequently has an accident would
not, generally, without the renter's or lessor's knowledge that the
consumer or lessee had a propensity or likelihood to use the vehicle in
an improper or dangerous fashion, result in liability to the lessor.
However, the lessee (and his or her insurance company) would be liable
for any damages or injuries he or she caused. Current law does not
impair an accident victim's ability to sue the driver or anyone else at
fault for their damages in any amount.
3. Repeal of the law would pose an immediate threat to car and
truck leasing that would hurt the automobile and truck industry as well
as the economy.
Repeal of vicarious liability reform would put a strain on auto and
truck dealers, and auto and truck manufacturers, as the industry is
just now beginning to slowly recover from the recession.
New York's vicarious liability law led to a 36 percent decline in
the number of vehicles leased in that state, according to the Alliance
of Automobile Manufacturers and the Greater New York Automobile Dealers
Association.\7\ More than 19 automakers and every major retail bank
stopped or curtailed car leasing in New York due to its law before
enactment of the Graves/Boucher law.
---------------------------------------------------------------------------
\7\ ``Vicarious liability costs New York consumers and businesses
millions,'' Business Council of New York State, June 2005.
---------------------------------------------------------------------------
Following passage of the Graves/Boucher law, all the captive
finance companies and almost every bank that had pulled out of leasing
came back to New York, and nationally, auto and truck leasing
increased, resulting in more affordable leasing terms for customers and
small businesses. Vehicle manufacturers became more inclined to support
and encourage service loaner car fleets, as the unfair liability issues
were resolved. The Graves/Boucher law has also contributed to more
dealerships operating their own service loaner car fleets for the
benefit and convenience of their customers. In addition, after the law
passed, dealers increased the number of ``service vehicles,'' for which
customers may rent on a short- or long-term basis. These vehicles are
used primarily when a customer or small business is looking to finance
a new or used vehicle or while their primary vehicle is being serviced
or repaired. Since passage of the Graves/Boucher law, participation in
manufacturer-sponsored customer loaner/rental programs for dealers has
increased 67 percent in New York and 42 percent nationally.\8\ Any
return of vicarious liability laws will deter this popular service
among dealers and consumers.
---------------------------------------------------------------------------
\8\ Sean Harrigan, PDP Group Inc.
---------------------------------------------------------------------------
The adverse impact would also be felt by the truck industry. Many
truck dealers also operate manufacturer-sponsored truck leasing
programs, which have been one of the few bright spots in the
significantly depressed trucking industry. Prior to enactment of the
Graves/Boucher law, truck renting and leasing declined because trucks
would operate in or through New York and other states with vicarious
liability laws. Truck dealers also were unable to secure liability
insurance for lease and rental fleets, inhibiting the ability to secure
financing for their lease fleets, limiting dealers' ability to serve
customers, and restricting the flow of interstate commerce. The vehicle
truck leasing business is one of the few bright spots in today's
depressed economy. Repeal of the vicarious liability protection would
squelch this economically important segment of the truck industry.
Repeal of Graves/Boucher would have a detrimental impact on jobs,
particularly at a time of 9.6 percent unemployment. Automobile
dealership jobs in New York, Rhode Island and other Northeastern states
would be especially hard hit if Graves/Boucher was repealed.
Additionally, during debate to reform New York's vicarious liability
law in 2004, the United Auto Workers urged vicarious liability reform
to protect workers and jobs. Jim Duncan, New York State Director,
Region 9, said he feared for the jobs of New Yorkers in auto parts
plants in Syracuse, Tonawanda and throughout the state as well as in
downstate dealerships.
Conclusion
At a time when businesses are attempting to rebuild and grow the
economy, Congress should reject any changes to the current vicarious
liability reform law. Any attempt to overturn the existing Graves/
Boucher law would have dramatic negative consequences for consumers and
small businesses.
Auto and truck leasing will be discouraged and will diminish
as leasing and rental entities ceasing doing business in those
jurisdictions that apply this antiquated legal theory.
Vehicles will be more expensive for consumers, through
increased lease, acquisition, and insurance costs.
Consumers or small businesses will have limited options for
rentals and loaner vehicles, especially for those waiting for a
vehicle to be serviced or repaired.
Auto and truck dealers will lose business, and governments
will lose needed tax revenues.
Auto and truck sales will be lost as a result of a lack of
leasing options hurts employment in certain states and the
national economy.
NADA/ATD appreciates the opportunity to provide the Committee with
our views on this important subject.
______
Congress of the United States
Washington, DC, October 12, 2010
Hon. John D. Rockefeller IV,
Chairman,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Hon. Kay Bailey Hutchison,
Ranking Member,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
RE: Hearing on ``NHTSA Oversight: An Examination of the Highway Safety
Provisions of SAFETEA-LU''
Dear Chairman Rockefeller and Ranking Member Hutchison:
We write to you to respectfully request this letter be included in
the record for the hearing on ``NHTSA Oversight: An Examination of the
Highway Safety Provisions of SAFETEA-LU,'' which was held on September
28, 2010, in the Senate Committee on Commerce, Science, and
Transportation. We appreciate your consideration of this matter.
As you know, SAFETEA-LU corrected an inequity in the car and truck
renting and leasing industries (Sec. 10208). As co-authors of this
provision, we strongly oppose any attempt to repeal or weaken it.
This provision, commonly referred to as ``vicarious liability'' or
limitless liability without fault, restored fair competition to the car
and truck renting and leasing industry, ultimately lowering costs and
increasing choices for all consumers. Prior to this law, a small number
of States imposed vicarious liability on companies and their affiliates
simply because they owned a vehicle involved in an accident. Whether or
not the rental or leasing company or vehicle was at fault was
completely irrelevant, and the ensuing lawsuits cost consumers
nationwide an estimated $100 million annually.
The vicarious liability provision does not provide, nor is it
intended to provide, blanket immunity for car renting and leasing
companies or car manufacturers for proven negligible business
practices. In fact, the provision in SAFETEA-LU clearly states that
``An owner of a motor vehicle that rents or leases the vehicle to a
person shall not be liable under the law of any State or political
subdivision thereof, by reason of being the owner of the vehicle, for
harm to persons or property that results or arises out of the use,
operation, or possession of the vehicle during the period of the rental
or lease, if, there is no negligence or criminal wrongdoing on the part
of the owner.'' It simply protects businesses from being held liable
for ``user error'' of a vehicle not owned by the driver.
Repeal of this law will increase costs for non-negligent renting
and leasing customers to cover the actions of negligent customers.
Further, businesses will see their costs increase for the
transportation of goods and are certain to be at-risk of failure when
hefty verdicts are awarded to pay for the actions of their at-fault
renters. In an economy where many businesses, large and small, are
fighting just to survive, it is vitally important not to add to their
load the job-killing burdens of frivolous lawsuits, which is precisely
what repealing or weakening our provision will do.
Lastly, existing law already requires renting and leasing companies
to follow State approved insurance coverage requirements. This ensures
that injured parties are compensated the same whether they are injured
by a rented car, a leased car, or a car that is privately owned.
Nothing in our provision prohibits States from increasing their minimum
coverage requirements.
Again, we appreciate your consideration of our request. Please feel
free to contact us directly or Mike Matousek (Rep. Graves) at 202-225-
7041 or Chris Davis (Rep. Boucher) at 202-225-3861 of our staff should
you have any questions or require additional information.
Sincerely,
Sara Graves,
Member of Congress.
Rick Boucher,
Member of Congress.
______
Response to Written Questions Submitted by Hon. John D. Rockefeller IV
to Hon. David L. Strickland
Question 1. The Safe, Accountable, Flexible, Transportation Equity
Act: a Legacy for Users (SAFETEA-LU), which was passed in 2005,
required the National Highway Traffic Safety Administration (NHTSA) to
issue a final rule on occupant ejection mitigation. A key component of
the law requires that the performance standards ``reduce complete and
partial ejections.'' Each year, nearly 9,000 people are killed and
another 20,000 injured as a result of being ejected or partially
ejected from a vehicle during a crash. Side air curtains often leave
small openings that may allow partial ejection of limbs or even the
full ejection of infants and toddlers. NHTSA has recognized that
advanced window glazing in addition to side air curtains enhances the
safety of vehicle occupants. In issuing final rules, I encourage NHTSA
to maximize consumer safety. What is the status of the occupant
ejection mitigation rulemaking and can you comment on the how the
proposed rule would mitigate partial occupant ejection?
Answer. We are in the process of completing a final rule that is
consistent with SAFETEA-LU and meets our January 31, 2011 target for
publication. The December 2, 2009 notice of proposed rulemaking (NPRM)
for ejection mitigation was aimed at reducing the partial and complete
ejection of vehicle occupants through side windows in crashes,
particularly rollover crashes. The NPRM anticipated that manufacturers
would meet the standard by enlarging and making more robust existing
side impact air bag curtains, and possibly supplementing them with
advanced glazing. The proposed rule would restrict the amount of
outward displacement an impactor may travel beyond the plane of the
window to less than 100 mm in target locations distributed around the
window opening. This requirement would help to ensure full coverage of
the window opening and the elimination of possible small ejection
portals, thus addressing in a very significant way both partial and
complete occupant ejections. We believe that when this final rule is
implemented, it will significantly reduce the number of fatalities and
serious injuries associated with complete and partial occupant
ejections in rollovers and other types of vehicle crashes in a cost
effective, reasonable, and objective manner.
Question 2. In your testimony before the Committee on September
28th, you stated: ``We have ongoing concerns about the pedestrian
safety and distraction, and we have initiated pilot programs in each of
these areas in the hope to use the results to guide policy
recommendations for the next reauthorization.'' Please provide the
Committee with additional information concerning NHTSA's pilot program
on pedestrian safety.
Answer. NHTSA has pedestrian safety demonstration programs
promoting safety education and enforcement in Chicago, Florida, North
Carolina and New Mexico. These locations are implementing pedestrian
education and enforcement programs and strategies to complement
existing or planned pedestrian engineering treatments, such as
barriers, islands, signals and markings, to improve infrastructure over
the course of 3 to 4 years. Examples of specific initiatives being
demonstrated in these locations include a safety education campaign
directed at motorists about distracted driving, sharing the road, and
vulnerable road user awareness; special law enforcement details
assigned to crosswalks to focus on motorist observance of pedestrian
laws and pedestrian observance of crossing laws; and enforcement
operations focusing on speeding on neighborhood streets, rural
roadways, and school zones with documented pedestrian safety problems.
Question 3. Motorcycle safety remains an area of prominent concern.
As you noted in your testimony, while other highway safety statistics
are improving, motorcycle fatalities increased by 11 percent between
2004 and 2009. Please provide the Committee with additional information
on NHTSA's strategy for reducing motorcycle deaths. The Agency's
Vehicle Safety Rulemaking and Research Priority Plan for 2009-2011
indicated that NHTSA was assessing Anti-lock Brake Systems (ABS) for
motorcycles and that the next Agency decision was expected in 2010.
Please provide an update on this activity and any other activities that
NHTSA intends to undertake to improve motorcycle safety.
Answer. Motorcycle helmets are the most effective means for
reducing motorcycle deaths. Efforts are underway to aid State and local
law enforcement officials in enforcing State laws that require
motorcyclists to use helmets meeting Federal safety standards. NHTSA is
pursuing a comprehensive strategy to reduce motorcycle deaths that also
includes efforts to improve rider training and licensing practices and
strategies to improve compliance with safety laws. Specific projects
currently planned or underway include the development of Model National
Standards for Entry-Level Rider Training, updating the Model Motorcycle
Operators Manual and licensing knowledge test questions for use by
State licensing agencies, a demonstration program to reduce the number
of improperly licensed riders, research on motorcyclists' visual
scanning skills, and a law enforcement training program to engage
officers in improving motorcycle safety in the community.
As the result of a comprehensive review of several different
sources of crash data and analysis of test results, NHTSA has decided
to delay rulemaking on ABS for motorcycles due to the inconclusive
results. NHTSA has placed the results of crash data study and research
in NHTSA Docket Number 2002-11950, which can be accessed at
www.regulations.gov. We will continue to monitor the crash data and
work with industry to identify motorcycles equipped with ABS both here
and abroad. In addition, we are moving forward with a crash causation
study that, among other things, will look specifically at braking-
related crashes. This will be the first study of its kind in more than
30 years.
______
Response to Written Question Submitted by Hon. Roger F. Wicker to
Hon. David L. Strickland
Question. The Federal Communication Commission's (FCC) National
Broadband Plan (NBP) was released earlier this year. The plan includes
many recommendations that reference NHTSA's role in deploying a
nationwide next generation 911 (NG911) system. Specifically,
Recommendation 16.13 references the need for NHTSA to analyze estimated
costs of deploying and operating a NG911 system, and report to Congress
no later than the end of 2011. What actions has NHTSA performed to date
in carrying out the NBP recommendation? How will this study be
performed? What is NHTSA's timeline for completion of this report?
Answer. Recommendation 16.13 of the National Broadband Plan states,
``The National Highway Traffic Safety Administration (NHTSA) should
prepare a report to identify the costs of deploying a nationwide NG911
System and recommend that Congress allocate public funding.'' The Plan
further describes the proposed contents of the report in detail.
Completing this report would be a significant undertaking for which
NHTSA does not have available funds. However, the agency has taken the
initial step to develop the specifications and cost estimate for
completing the recommended report. We expect to finish this initial
step at the end of calendar year 2010. NHTSA would be able to develop a
timeline for the completion of the recommended report if the necessary
resources are available.
______
Response to Written Questions Submitted by Hon. Claire McCaskill to
Ethan Ruby and Responded to by David C. Cook, Marc S. Moller Kreindler
& Kreindler LLP
Question 1. How does the Graves/Boucher provision in the
Transportation Equity Act of 2005 address an injured party suing a
company for negligence in the renting or leasing of a vehicle?
Answer. 1. Graves prejudices the rights of victims of rental car
operator negligence by insulating the rental car companies from
liability for damages.
2. The immunization of rental car companies from liability for the
negligence of those who rent their cars and cause accidents will
embolden the rental car companies to be even less careful than they are
now in renting their vehicles because there is no economic
responsibility that attaches for that act, except when it can be proved
that the leasing itself was negligent. Negligent entrustment, for
example, may be difficult to prove even when the entrustment is
negligent. If rental car companies believe that they should have no
liability in a given circumstance they can always bring their own
action against the negligent driver. The burden of litigation and
protecting the rental car companies should not be borne by the victims.
3. With rental car companies insulated from economic responsibility
for negligence of its drivers, the state and local governments will be
required as a matter of law to bear the economic burden of medical care
and rehabilitation of victims. That makes no sense when state and local
governments are struggling to meet their own burdens of providing
service to their citizens.
4. Persons who lease cars or trucks from rental car or truck
leasing companies most often cannot be located or when located carry
minimal insurance. Thus the argument that the drivers of rental car
companies' cars can still be sued for their negligence offers little
protection for the victim. Renters who live in foreign countries, for
example, will be virtually impossible to hold accountable.
5. Purchasing third party liability insurance is a cost of doing
business for rental car and truck companies which are capable of being
spread among all renters of cars and trucks and thus would impose a
modest burden, if it be considered a burden at all, upon the rental
agencies themselves.
Question 2. Since passage of the Graves/Boucher provision in the
Transportation Equity Act, what recovery options exist for a party
injured by a rental car driven by an uninsured driver?
Answer. 1. The issue of whether rental car companies should be
insulated from liability for the negligence of its drivers should
properly be resolved on a state-by-state basis and not by Federal
legislation. Federalization of insulating rental car companies fails to
allow a distinction between states which have a large transient car and
truck renter population and those states in which rental car and truck
leasing activity has no such aspect. E.g. Florida and New York vs.
North Dakota. The state legislatures are the proper fora in which the
distinctions and issues should be mediated and resolved.
2. Preemption of state laws is especially inappropriate in these
circumstances since the extraordinary burden and risk placed upon the
victims and states is not counterbalanced by appropriate safeguards in
the rental process and business to insure that victims have adequate
protection. Minimum insurance standards embodied in state law are
insufficient for the profit-making companies Few industries, if any,
enjoy the extraordinary protection rental car companies obtained
through Boucher. The rationale of low mandatory limits of coverage in
some state laws which may be required to accommodate the non-business
and small business driver population has no application or
justification for the highly profitable car and truck rental business.
If those companies cannot buy or afford adequate and meaningful
insurance coverage they should not be in the business. Victims do not
have to subsidize them.
3. Ethan Ruby received fair compensation for his catastrophic
injuries as his action was pre-Graves, however, by contrast a recent
post-Graves New York Second Department Appellate Division Decision
(attached) established the near futility of pursuing negligent
entrustment. In Byrne v. Budget et. al. The operator, holding a
restricted license (originally Suspended for DUI and reinstated as
Restricted enabling travel to and from work and during the course of
his employment) with a lengthy history of illegal drug abuse,
alcoholism, DUI, multiple criminal convictions and incarceration ran
over and killed a young female bicyclist. The case was dismissed
against the rental company as a restricted license was ruled a valid
license and there is no legal duty imposed upon the rental company
(even on notice of a Restricted License) to investigate the renter's/
operator's driving and/or criminal record.
______
Attachment
Byrne v. Collins
2010 NY Slip Op 07507
Decided on October 19, 2010
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to
Judiciary Law 431.
This opinion is uncorrected and subject to revision before
publication in the Official Reports.
Decided on October 19, 2010
Supreme Court of the State of New York
Appellate Division : Second Judicial Department
Mark C. Dillon, J.P.
Anita R. Florio
John M. Leventhal
Cheryl E. Chambers, JJ.
2010-00431
(Index No. 38029/06)
[*l] David Byrne, etc., respondent,
v.
James Collins, et al., defendants, Budget Truck Trust I Wilmington
Trust Co., et al., appellants.
Reardon & Sclafani, P.C., Tarrytown, N.Y. (Michael V. Sclafani
of counsel), for appellants.
Kreindler & Kreindler, LLP, New York, N.Y. (Megan W. Benett
of counsel), for respondent.
Decision & Order
In an action, inter alia, to recover damages for personal injuries,
the defendants Budget Truck Trust I Wilmington Trust Co. and Budget
Rent-A-Car System, Inc., appeal, as limited by their brief, from so
much of an order of the Supreme Court, Kings County (F. Rivera, J.),
dated November 24, 2009, as denied that branch of their motion, made
jointly with the defendants Perfect Car Rental, doing business as
Budget Truck Rental, and Budget Truck Rental, LLC, which was for
summary judgment dismissing the complaint insofar as asserted against
them.
ORDERED that the order is reversed insofar as appealed from, on the
law, with costs, and that branch of the motion which was for summary
judgment dismissing the complaint insofar as asserted against the
defendants Budget Truck Trust I Wilmington Trust Co. and Budget Rent-A-
Car System, Inc., is granted.
The plaintiffs decedent was fatally injured when, while riding a
bicycle, she was struck by a truck. At the time of the accident, the
defendant Budget Truck Trust I Wilmington Trust Co. (hereinafter Budget
Truck Trust) was the titled owner of the truck and the defendant Budget
Rent-A-Car System, Inc. (hereinafter Budget Rent-A-Car, together the
appellants), was the registered owner. On the morning of the day of the
accident, Michael James, a person employed as an assistant supervisor
for the defendant JBG Trucking (hereinafter JBG), had rented the truck
involved in the accident from Perfect Car Rental, doing business as
Budget Truck Rental (hereinafter Perfect Rental), a company that
operated as a dealer for the defendant Budget Truck Rental, LLC
(hereinafter Budget, LLC). At the time of the accident, the truck was
being driven by the defendant James Collins, a part-time employee of
JBG.
The decedent's brother, on behalf of himself and the decedent's
estate, commenced this action against the appellants, among others, to
recover damages for wrongful death and personal injuries, alleging,
inter alia, negligent entrustment. The second cause of action, which
alleged negligent entrustment, asserted, in effect, that Perfect
Rental's counter agent Saul Friedman [*2] negligently entrusted the
truck to Collins by failing to thoroughly review the driving and
criminal history which led to the restriction of Collins' license to a
class C driver's license and, further, that there was readily
observable evidence of Collins' drug use on the day of the rental and
accident.
To establish a cause of action under a theory of negligent
entrustment, ``the defendant must either have some special knowledge
concerning a characteristic or condition peculiar to the [person to
whom a particular chattel is given] which renders [that person's] use
of the chattel unreasonably dangerous . . . or some special knowledge
as to a characteristic or defect peculiar to the chattel which renders
it unreasonably dangerous'' (Cook v. Schapiro, 58 AD3d 664, 666, Zara
v. Perzan, 185 AD2d 236, 237).
The appellants made a prima facie showing of entitlement to
judgment as a matter of law on the second cause of action insofar as
asserted against them by demonstrating that the rental truck they owned
was not negligently entrusted to Collins. They submitted, inter alia,
transcripts of deposition testimony of Collins, Michael James, and
Friedman, as well as Budget, LLC's dealer manager Natalie Brown, which
collectively established, prima facie, that, although not required to
do so by any internal policies when dealing with business accounts such
as JBG's, Perfect Rental's counter agent Friedman nonetheless verified
that Collins had a restricted, yet valid, driver's license on the
morning of the rental and accident. Furthermore, the testimony of
Collins and of Michael James established, prima facie, that Collins had
not used drugs the day of the accident.
In opposition thereto, the plaintiff submitted, inter alia, an
abstract of Collins' driving record, which showed that he indeed had a
restricted, yet valid, Class C driver's license on the day of the
rental and accident. The plaintiff also included excerpts of deposition
transcripts of Collins and Michael James, which failed to support his
conclusory and speculative assertion that Collins may have been under
the influence of drugs on the day of the rental and accident. These
submissions were insufficient to raise a triable issue of fact as to
whether or not the appellants possessed special knowledge concerning a
characteristic or condition peculiar to Collins that rendered his use
of the truck unreasonably dangerous. Thus, the negligent entrustment
cause of action should have been dismissed insofar as asserted against
the appellants (see generally Alvarez v. Prospect Hospital, 68 NY2d
320, 324).
Contrary to the plaintiffs contention, the appellants' failure to
provide copies of any internal policies as to investigation of
potential renters with restricted licenses constitutes an insufficient
basis upon which to deny their motion for summary judgment. Even if
such a policy had been violated, under the circumstances of this case,
such violation would not constitute actionable negligence (see Lambert
v. Bracco, 18 AD3d 619, 620; Newsome v. Cservak, 130 AD2d 637, 638).
The first cause of action, which was based on the alleged vicarious
liability of the appellants, was barred under the Graves Amendment (49
U.S.C. 30106), as the appellants showed they are ``owner[s] . . .
engaged in the trade or business of renting or leasing motor vehicles''
(49 U.S.C. 30106; see Gluck v. Nebgen, 72 AD3d 1023), and should also
have been dismissed.
The plaintiffs remaining contentions either are without merit or
have been rendered academic in light of this determination.
Accordingly, that branch of the motion which was for summary
judgment dismissing the complaint insofar as asserted against the
appellants should have been granted. Dillon, J.P., Florio, Leventhal
and Chambers, JJ., concur.
ENTER: [*3]
Matthew G. Kiernan,
Clerk of the Court.
______
Response to Written Question Submitted by Hon. Byron Dorgan to
Ira H. Leesfield
Question. The Transportation Equity Act of 2005 (Sec. 30106)
provides that owners of rental and leasing vehicles are not liable for
harm related to those vehicles, provided there is no negligence or
criminal wrongdoing on the part of the owner. This provision ensures
that there is no absolute immunity for vehicle owners when they are
negligent. If a consumer rents a car and there are faulty brakes, and
he suffers an injury, would the consumer be able to sue the company for
negligence in Florida and other states across the country?
Answer. The rental company could be liable under narrow
circumstances. However, if the rental car driver noticed that the
brakes are faulty, and not operating correctly, and continued to drive
the car, the operator would be negligent for which there is no recourse
by the injured party.
In Florida, as in most states, we have ``shared'' liability and the
rental car company could greatly diminish or eliminate their
responsibility by blaming the renting driver, who has returned to his
home state or home country. I hope this helps answer your inquiry.
______
Response to Written Questions Submitted by Hon. Claire McCaskill to
Thomas M. James
Question 1. How does the Graves/Boucher provision in the
Transportation Equity Act of 2005 address an injured party suing a
company for negligence in the renting or leasing of a vehicle?
Answer. The Graves/Boucher provision does not impact an injured
party suing a company for negligence in the renting or leasing of a
vehicle. In fact, the law is very clear that protection from liability
only exists when ``there is no negligence or criminal wrongdoing on the
part of the owner.'' In other words, the Graves/Boucher provision
provides no protection from liability for renting and leasing companies
whose negligence contributes to an accident and claim. If a rental
company's actions are found to be negligent, such as renting to a
visibly intoxicated driver, then the Graves/Boucher provision would not
apply. The Graves/Boucher provision merely prevents these companies
from being held liable without fault for actions that are outside of
their control.
Question 2. Since passage of the Graves/Boucher provision in the
Transportation Equity Act, what recovery options exist for a party
injured by a rental car driven by an uninsured driver?
Answer. Owners of rental cars are required to fulfill state
requirements for liability insurance just as owners of all other cars
on the road in a given state. In the event a rental car is driven by an
uninsured driver, the injured party at a minimum can recover up to the
state financial responsibility limits. Beyond that, the injured party
may pursue the negligent party, which depending upon the circumstances
could be either the renter or the rental car company. In either case,
the Graves/Boucher provision would not foreclose an injured party from
seeking recovery from a negligent party as well as seeking recovery
against the rental car company in the amount of the state-mandated
minimum level of financial responsibility.
______
Response to Written Question Submitted by Hon. Byron Dorgan to
Thomas M. James
Question. It is my understanding that the Graves/Boucher provision
included in the 2005 Highway Safety Reauthorization (TEA-LU) eliminates
liability without fault judgments against vehicle renting and leasing
companies. Does the Graves/Boucher provision also specifically exempt
from coverage any negligence on the part of the owner? Under the
Graves/Boucher provision would a company which rents a car to an
intoxicated person and he causes an accident still be appropriately
subject to liability based on negligence?
Answer. The Graves/Boucher provision provides absolutely no
protection from liability for renting and leasing companies whose
negligence contributes to an accident and claim. If a rental company's
actions are found to be negligent, such as renting to a visibly
intoxicated driver, then the Graves/Boucher provision would not apply.
The Graves/Boucher provision merely prevents these companies from being
held liable without fault for actions that are outside of their
control.
______
Truck Renting and Leasing Association,
Alexandria, VA, October 12, 2010
Chairman John D. Rockefeller IV,
Ranking Member Kay Bailey Hutchison,
Subcommittee Chairman Mark Pryor,
Subcommittee Ranking Member Roger Wicker,
Committee on Commerce, Science, and Transportation,
Washington, DC.
Re: Additional Submission for Record of September 28, 2010 NHTSA
Hearing
Dear Chairman Rockefeller, Ranking Member Hutchison, Chairman Pryor,
and Ranking Member Wicker:
I would like to once again thank you for the opportunity to testify
before the Committee on the issue of the impact of the Graves/Boucher
amendment. I believe that my testimony provided you and the members of
the Committee with a sense of how important this law has become to the
rental, leasing, and automobile manufacturing industries, and
ultimately to protecting consumer choices in the rental and leasing
marketplaces.
I would like to also take this opportunity to clarify a few points
that were raised during the hearing.
Foreign Renters No More Likely To Cause Damage than U.S. Born
During the hearing, Chairman Pryor asked for additional data as it
relates to the issue of foreign drivers and the frequency in which they
are engaged in auto accidents while using rented or leased vehicles.
There is no aggregate data for the industry on this issue, but in
speaking with individual rental car companies, the rate of incident on
foreign renters is almost identical to domestic rental customers. As it
relates to foreign renters and insurance, at a minimum all foreign
renters are provided (by rental car companies) the liability protection
that meets a state's minimum final responsibility limits. In addition,
many foreign drivers have supplemental insurance through full value
vouchers or tour programs that provide primary liability protection. In
addition to this insurance coverage, foreign drivers are offered and
many elect to purchase, supplemental liability coverage from individual
companies; this insurance product provides up to $1 million of
coverage. According to some company statistics, foreign renters on
average purchase the supplemental liability coverage 79 percent of the
time.
2005 Graves Amendment Not a Case of First Impression for Congress
First, the issue of vicarious liability reform has been debated and
discussed extensively in both the House of Representatives and the
Senate for well over a decade. In 1996, during the 104th Congress, the
House and Senate easily passed H.R. 956: Product Liability Fairness Act
of 1995, a comprehensive product liability reform bill. The measure
contained a vicarious liability reform provision offered by
Representative Pete Geren (D-TX). This provision was approved by voice
vote as an amendment. In May 1996, President Clinton vetoed the bill,
thereby ending chances to secure passage of product liability reform in
the 104th Congress.
On January 21, 1997 during the 105th Congress, Senator Ashcroft
introduced S. 5: Product Liability Reform Act of 1997, a comprehensive
product liability reform bill identical to H.R. 956 that contained a
vicarious liability reform provision. In May 1997, the Senate Committee
on Commerce, Science, and Transportation approved a modified version of
Sen. Ashcroft's proposal, S. 648: The Product Liability Reform Act of
1997, which also contained a vicarious liability reform measure. In
1998, S. 648 was replaced by S. 2236: The Product Liability reform Act
of 1998, a bipartisan compromise bill negotiated between Senator Slade
Gorton, the Clinton Administration, and Chairman Rockefeller. This bill
contained a vicarious liability reform provision, but the Senate failed
to invoke cloture on the bill, thereby ending prospects of passing a
product liability reform measure in the 105th Congress.
During the 106th Congress, Representative Ed Bryant (R-TN) and
Senator John McCain (R-AZ) introduced H.R. 1954: The Rental Fairness
Act and S. 1130: The Motor Vehicle Rental Fairness, to reform liability
of motor vehicle rental and leasing companies. In addition, Senator
Spencer Abraham introduced S. 1185: The Small Business Reform Act and
Representative James Rogan introduced H.R. 2366, a companion bill; both
contained vicarious liability reform provisions. On September 29, 1999
the House Judiciary Committee held a hearing on the Rogan bill and on
September 30, and the Consumer Affairs Subcommittee of the Senate
Commerce Committee held a hearing on the McCain reform bill (S. 1130).
Senator McCain's bill was later approved by voice vote and sent to the
full Senate Commerce Committee. Throughout the 106th Congress, the
House Judiciary and Commerce Committees held several hearings and mark-
up sessions on H.R. 1954 and H.R. 2366. On February 16, 2000, the House
approved H.R. 2366 by a vote of 221-193. The approved bill contained
vicarious liability reform language for product sellers, lessors, and
renters.
Vicarious liability reform was also debated in the 108th Congress.
On April 1, 2004 during the debate on H.R. 3550, the Safe, Accountable,
Flexible and Efficient Transportation Act of 2004, Representative Sam
Graves (R-MO) offered an amendment to reform vicarious liability laws
for rented or leased motor vehicles. After the debate, the amendment
failed on a voice vote.
It was in the 109th Congress in which vicarious liability reforms
became law. On March 9, 2005, Representative Sam Graves and
Representative Rick Boucher (D-VA) attempted to again amend the
Transportation Reauthorization bill (H.R. 3) with a provision to reform
vicarious liability laws for rented or leased motor vehicles. After a
debate on the House Floor, the bipartisan amendment passed the House of
Representatives with a vote of 218-201. The next day, H.R. 3 passed the
House of Representatives with a vote of 417-9. H.R. 3 was conferenced
between the chambers, where House and Senate Conferees retained the
vicarious liability language and included it in the final conference
product. On July 29, 2005, the House passed the conference bill by 412-
8 and the legislation was passed in the Senate 91-4. Vicarious
liability reform was signed into law by President George W. Bush on
August 10, 2005.
Elimination of Vicarious Liability Does not Eliminate Liability--
Companies Always Provide MFR and Continue to Be Liable for
Negligence
Secondly, there seems to be some confusion regarding the scope of
the Graves/Boucher provision. The Graves/Boucher provision does not
provide complete immunity for the rental car and leasing industries;
these industries are liable for any accidents in which they have acted
negligently. Through negligent entrustment, rental car and leasing
companies can be held accountable for their actions. These actions
include renting to a customer who is visibly intoxicated. Furthermore,
even in cases in which a rental or leasing company is not at fault, the
Graves/Boucher provision does not alleviate responsibility of rental
car and leasing companies of the minimum financial responsibility for
each state. Every rental or leased car has the minimum level of
insurance as required by the state in which it is rented or leased.
Hague Service Convention Prescribes Rules for Serving Negligent Foreign
Renters
During the hearing it was asserted that negligent rental car
customers can ``drive off scot free'' from their actions. This is
incorrect. Under the Hague Service Convention, a central authority
accepts incoming requests for service and arranges for service in a
manner permitted within the receiving state, typically through a local
court to the defendant's residence. This system has been in place since
1965 and applies to 60 countries--largely encompassing the developed
world in which the overwhelming majority of foreign renters reside.
Thank you again for the opportunity to discuss this important
matter with the Committee.
Sincerely,
Thomas M. James,
President and CEO,
Truck Renting and Leasing Association.