Looking For Volunteers

[Dreamer]

How can I put this.. >LOL...

I think Davekc AND Ateam are both right, and are closer on their answers than they realize!

I understand Dave's point that 'usually' the more experienced person will have better answers. However, as Ateam pointed out many 'so-called' experienced people will give bad answers. How many otherwise qualified people have we seen complain about a companies policies, say 'stay away from here, go here' only to find out they have a 50% in service and 50% acceptance rating and wonder why they company doesn't give them cherry runs.

I think experience is a huge part, sure. BUT as far as driving is concerned, a 2 year vet can probably tell you as much about this business as a 5 year vet. Now with issues such as truck ownership, perhaps not. But, that 2 year driver should know about maintenance, log issues, etc, and should not be questioned as much.

Here is where Ateam's idea of checking the validity of the statements, not how much 'experience' the person may have.

For example, myself. I don't have close to as many years in the business as some of our other mods, yet I hope folks realize I don't post anything unless I can confirm my facts, or have good basis for their opinion. I know many others are the same way.

For Teacel, I think questions are a great idea, but they need to take into account how much success the person has had for the amount of time in the business, not strictly years only.

Things like is this person a single or team operation, what company, how long do they stay out, what is their run acceptance philosophy, is it similar info to others running the SAME WAY.

For examply you can't compare a single driver's pay to a Special Services, or White Glove team pay. Doesn't mean the figures are wrong, they just don't apply to a single driver.

We need to be careful and make sure we judge the info on it's merits, how it compares to info given by people in SIMILAR situations, not simply who posted it.






Dreamer
Forums Administrator

 

[davekc]

Alot of issues could have different views depending on circumstances. I agree that bickering will not get this the attention it deserves.
Ateam
To avoid alot a repetition, I will answer alot of your questions in specific detail when all of the questions are formatted on the site.
A contract does need specific language to address some of your listed concerns as THawk mentioned.
The use of a arbitrator can be beneficial if the amounts warrant the cost on either end. The cost is $150 to 300 per hour for their services. The use would depend on the amounts and what is being disputed. Small claims applies to some of your questions. Additionally some may be solved by a third party or possibly through OOIDA.
Other concerns can be addressed by length of time in business, reputation, past lawsuits which are a matter of public record.
For example, damage on a vehicle should be decided by a third party.
Again, much is provided in a contract. That being said, some things are addressed differently if the owner or the driver is broke. Then you have to look at other options or legal remedies. A contract has little value if there is no way it can be enforced because either end has little or no assets.
Your question of a owner attacking a female driver is a criminal offense.
That is a starting point but I could address each more in depth which will be done shortly/

I should have added....without knowing the completion time, if one of those items need specific attention ASAP...then send me a PM and I will help you out.





Davekc
owner
21 years
PantherII
EO moderator

 

[ATeam]

>How can I put this.. >LOL...
>
>I think Davekc AND Ateam are both right, and are closer on
>their answers than they realize!

Thank you, Dreamer. The peacemaker strikes again!

 

[ATeam]

Regarding contracts between fleet owners and drivers, Diane and I have reviewed many and have yet to see a good one. Some are, frankly, terrible for both the fleet owner and driver.

There is a legal principle that responsiblity for a poorly-written contract falls on the drafter. In court, if a problem of contract interpretation arises, a poorly-written contract will work against the fleet owner since it is the fleet owner that drafted the document. For that reason, and because Diane is an attorney, we entered into contracts with fleet owners, even though the contracts were poorly written. Fortunatly, there has only been one time when we needed to employ Diane's skills as a lawyer and mine as an activist to secure our rights (and proper pay) in a driver/fleet owner relationship.

There is a crying need in the expediting industry for well written driver/fleet owner contracts. While Teacel's initiatiave may produce a good Q & A document for newbies, those working with him could have a profound positive impact if they also produced a contract language template that fleet owners could use. Doing so would do more to help newbies succeed than most anything else I can imagine.

I'm not talking about a sample contract. That would not work since state laws and fleet owner business models vary so much. I'm talking about language paragraphs that address different aspects of a driver/fleet owner relationship.

A productive way for the group to proceed would be to first identify each aspect of the driver/fleet owner relationship, and then to produce sample contract language that talks about that aspect. Fleet owners can then cut and paste items they select from the sample language to develop their own contract, and then take their proposed document to their attorney for review.

Disclosures and liability disclaimers can be used to protect the group from any charge about practicing law without a license or misrepresenting their qualifications in such an endeavor.

For example, a number of compensation arrangements exist. There is the 60/40 split where the driver pays for fuel and receives 100% of the fuel surcharge, the 40/60 split where the fleet owner pays for fuel and the owner receives 100% of the surcharge, and a variety of options in between.

To address the compensation component of a driver/fleet owner relationship the group could draft a single paragraph that could work in a contract that clearly spells out the compensation and fuel surcharge terms. Blanks can be left for owners to fill in the numbers on their contract draft as they deem appropriate.

Off the top of my head, here a few relationship aspects to write language paragraphs for. In the interests of brevity, I'm listing only a few. I have no doubt that the experienced members of Teacel's group (committee?) can complete the list.

1. Who are the parties to the contract?

2. What services are specifically being provided by each party?

3. When the relationship ends and the truck is turned in, what procedures exist for objectively determining the condition of the truck for damage deposit purposes?

4. Who pays for fuel?

5. If the truck breaks down and the fleet owner is at that moment is not reachable by phone, and the driver is under load, how much authority and latitude does the driver have to deal with vendors to get the truck repaired?

6. Same question as number 5, only truck is not under load?

7. What are the rules about pets in the truck?

8. Passangers?

9. If the driver is home and wants to use the truck to haul a new riding lawn mower or other items home, is that permitted?

10. If the driver has a relative that is moving, is the driver permitted to use the truck to help with the move?

11. What insurance must be maintained and who pays for it?

A review of contracts and a committee discussion will help complete the list of questions. For each question, determine the different answers different fleet owners give, and then write a language paragraph for each answer.

This is no small task but would be worth the time, I believe. By writing sample contract language bits that address each aspect of a driver/fleet owner relationship, Teacel, DaveKC and others involved in this initiatiave could do a great service for fleet owners and drivers alike.

If asked to participate in such an effort, I would decline for two reasons. First, I lack the five years experience Teacel has set as a credibility threshold (thanks, Teacel, for the easy out ). Second, much of my free time is now dedicated to writing the Business Planning for Expediters series for Expedite Now (see the first installment in the most recent issue).

 

[davekc]

Alot of good ideas to address. Some could be easier to format than others. For example, truck maintenance can be addressed when just the owner and the driver are the participants.
It gets alittle more complicated to generalize on items like a insurance because different carriers, insurance companies ect. come into play. There are several others.
A conflict of interest can come in to play when the third party is introduced which is the carrier.
Leases from carriers are all different and some items have to be carrier specific.
Those will be the toughest to format and answer specifically.
It will be interesting to see how this turns out.




Davekc
owner
21 years
PantherII
EO moderator

 

[greg334]

I got to say something.

I am NOT trying to beat anyone up here but I am going to say it again and stress it this time:

When you all deal with any type of contract between you and a company, fleet owner or even the company down the street to move stuff for them, get a lawyer. Have them read it, talk to them about it and learn your limitations. I say this only to protect YOU - not make money for the lawyers.

After reading what ATeam (Phil) has written and rereading it a few times, I had to call my lawyer to have him read it and ask his advice. See he is a practicing attorney and a founding partner in a rather large firm and I have used them for years. I completely trust his opinion and their work, they never let me down. The firm deals with corporate issues, which include contracts and have last I heard 15 lawyers who deal only in contracts.

Besides the usually yelling about giving advice on legal matters, he wanted me to mention to everyone regardless what advice is given here, each situation is different and each situation needs to have sound legal advice with the proper protocol followed, period. What is meant by protocol is that you as a person pay for a lawyer’s advice, not to ask questions on the internet or use someone else’s lawyer’s advice. This is the legal and proper thing to do.

He wanted me to pass on that corporate contract law can be looked at as a profession within a profession and is complex in itself. Normally the first class in law school you have is contracts but that is only one or two classes to get you to start thinking a like a lawyer (yuk!). Just because you took the class, does not mean you are good enough to advice on complex contracts. There are lawyers who make contract law a living just as some do with admiralty law and that is all they do all their life.

He also said to complicate matters is the problem that most of the industry we are in use 1099 contractors which adds more issues when writing contracts which include labor laws (state and federal) and IRS rules that are now involved, it is no longer just about hauling freight or driving a truck at that point.

His suggestions are not to even approach the contract issue by trying to help someone write a contract, use a form contract or fill in the blanks “anythingâ€. As Phil eluded there are different laws in different states and he (my lawyer) added that there are federal laws/regulations that may need to be taking into account, i.e. household goods DOT regulations as a possible issue and anything that is posted, put into a form that can be used or steps given to form a contract can be construed as legal advice which no disclaimer will protect. (Pretty much his words)

And his last suggestion is that it may sound easy to write a disclaimer in giving legal advice, he warns that it only takes one shrewd ambulance chaser to get a client who failed, claims he/she did not read the disclaimer and sue some who are involved. He said in a few cases with disclaimers made both implied and written, all it took was a precedent in some obscure court case in the past 250 years to win for the plaintiff. Remember we are the law suit happy capital of the world, the US.

As for the content of Phil’s post, a lot of good stuff in there and the key thing is it is true not all contracts are sound and above board, but it all depends on the persons going into the agreement and their expectations. This is why you have a lawyer looking them over, preferably a contract or at minimal corporate lawyer.

Phil’s statement; “There is a legal principle that responsibility for a poorly-written contract falls on the drafter. In court, if a problem of contract interpretation arises, a poorly-written contract will work against the fleet owner since it is the fleet owner that drafted the document.†but practical experience has proven it does not matter how the contract is written, it is how the case is handled, what the complaint is about and who is involve, i.e. legal representation of both parties. I know this first hand as an owner of a company that was sued by a contractor over contract issues. I came in at the end of the suit as an owner but read what the judge said, which counters Phil’s first sentence of the quote. It did not matter what form or how poorly written the contract was, it mattered that there was an expectation of payment for services rendered and as the judge said that it is all too common that many believe that common sense is removed by the use of a contract. This is not a direct quote.

I am not trying to say that Phil is wrong in offering these suggestion but he and especially Diane should know what the limitations are in giving legal advice and that the best advice would be to advise anyone entering into any agreement, be it a fleet owner or a driver or an owner/operator is to have an actual practicing lawyer look the document over, answer questions and help you understand it and your limitations.

 

[x06col]

My, my, this seems to be quite a fire drill. All you really have to do is play fair, like your momma learned you. But, I know, some can't help their actions, and, others I wonder IF they had a momma.
Regardless, you could't carry the document produced to completely protect us from ourselves and others.

 

[Tennesseahawk]

Yep... playing fair is what the contract is for. Kinda reminds those who would play dirty to have a conscience. If not, then a court will remind them.

 

[davekc]

Greggs advice is excellent. Having a contract written and reviewed by a attorney is sound advice.
Some things can be generalized but may not fit everyones situation. Some items as mentioned between a owner and the driver can be addressed with limitations based on opinion.
While not legal advice, it would give a foundation of sorts to present to a attorney to ensure all aspects are covered.
Never assume anything as even the best of attorneys might miss something. Even more so if they don't specialize in transportation issues.
Maybe instead of writing a contract, it might be better suited to educate new folks on what to look for in one prior to any consultation. It would at least narrow the process.
My personal opinion is for fleet owners to construct their own contract with their own council.
I follow my own advice and that is why I don't put a copy here on EO as it has been requested more times than I can count.




Davekc
owner
21 years
PantherII
EO moderator

 

[X1_SRH]

Highway Star,

I may be wrong, but I believe this is the first time that Master Yoda has been mentioned here in the Fora.

Well done.

Scott

 

[ATeam]

Greg said:

>I am not trying to say that Phil is wrong in offering these
>suggestion but he and especially Diane should know what the
>limitations are in giving legal advice and that the best
>advice would be to advise anyone entering into any
>agreement, be it a fleet owner or a driver or an
>owner/operator is to have an actual practicing lawyer look
>the document over, answer questions and help you understand
>it and your limitations.

Allow me to re-emphasize a paragraph from my post:

" A productive way for the group to proceed would be to first identify each aspect of the driver/fleet owner relationship, and then to produce sample contract language that talks about that aspect. Fleet owners can then cut and paste items they select from the sample language to develop their own contract, and then take their proposed document to their attorney for review."

Note the words, "...take their proposed document to their attorney for review."

By drafting a proposed contract from boilerplate language, a fleet owner can piece together the terms he or she wants in a driver/fleet-owner contract. He or she can then take that much to an attorney in his or her state and have the attorney draft a proper contract based on the desires illustrated in the fleet-owner's draft. I believe that approach would save fleet owners a fair amount of money in lawyer fees since it would be an efficient way for the fleet owner to communicate his or her contract desires to the attorney.

Again, there is a crying need in our industry for good fleet-owner/driver contracts. If there is a good one out there, I'd love to see it.

 

[greg334]

I have been thinking if I should reply; mainly because I don’t anyone mad at me for my longwinded comments. But I am because I see the importance of this thread and especially this subject – contracts.

Phil I understand your point, it is valid and completely reasonable, but I think you miss my point completely and recommend that after this post if you want to further discuss this issue, we can take it off line to email to save everyone their sanity and not have the appearance of a …. well you fill on the blanks.

I will simplify this as much as I can.

This is not about giving information to help understand contracts or the interactions between parties in this segment of the industry with the contract as the vehicle but posting parts of any contract for any reason so a layman can put together a contract.

---> Disclaimers, warnings and such, don’t matter. <---

You can re-emphasize your post as much as you want; it goes against the advice of a lawyer who is a partner in a multimillion dollar firm that has the combined experience of thousands of years.

I really don’t care what the reasoning you use to justify this, saving money - knowledge sharing - what ever it may be; the fact is many people will not go to an attorney after they use the information you give them. They will take that information to put it together (cut and paste as you say) the way they think it should go together and use it as is under the assumption that because Diane is an “attorneyâ€, the information is correct and can be used without legal ramifications.

Again ---> disclaimers, warnings and such, don’t matter. <---

Why would they do this? Many are simply cheap and lazy while others who are honest and want to do the right thing but have no clue about who to talk to or how to talk to them when they find someone.

If you see a need to save money as a business owner by increasing your liabilities, go for it, it is a foolish practice that only the lucky get away with. Part of business success is about knowing how to limit liabilities, right? I for one follow advice of experienced practicing law professionals whom I paid to protect me, my business and my employees/contractors. If they say don’t do this or that, I ask why and even if I don’t agree with them I still listen to them.

I share a lot of information with all, present and potential business owners who may never think about the issues that affect them. I will not post specifics of any contract as it is a business specific thing, not to be copied by everyone. I don’t claim to be an expert or a lawyer, I make that point clear but I do claim I have enough experience to see liabilities and know how to limit them or ask people who can help me limit them.

You said – “Again, there is a crying need in our industry for good fleet-owner/driver contracts.â€

Yep you are right on this point, but you know and I know that there is a bigger issue that needs to be addressed - finding a lawyer who you can trust and work with; they are not easy to find and many will get trapped in a situation where a lawyer will do more harm than good. I suggest that instead of pursuing something that opens up possible problems for many, why don’t you and Diane write up something that will give everyone the information needed to find a good lawyer, maybe interview a few to find out their take on what a contract is or is not, come up with a good expediter to lawyer dictonary or even evaluate a few for the EO audience? With both of your jurisprudence knowledge/experience, this should be a cakewalk. For that matter you can even claim it was your idea to do this.

 

[jaminjim]

I see valid points from both ATeam and Greg.

I don't see a need for a contract sample for a fleet owner. If he cannot afford a Lawyer to do it, Then he needs to build up his cash before getting into the bis.

I would think that a list for Drivers and a list for Owners on things that they need spelled out and protected aginist would be enough for the average Contract Lawyer ( in transportation ) to write or review for the client.

A check list that could be downloaded and handed to the lawyer stateing what things are important to the Driver / owner, and he/she could advise on what they see.

 

[ATeam]

jaminjim said,

">I don't see a need for a contract sample for a fleet owner.
>If he cannot afford a Lawyer to do it, Then he needs to
>build up his cash before getting into the bis."

Now THERE'S a point!

How many fleet owners are out there right now using contracts that are a joke at best?

How many fleet owners are out there right now that would - without thinking even a little about it - eagerly adopt a contract that another equally clueless fleet owner uses, simply because it looks a bit better than his?

If not a sample contract, or sample contract language, Leo's post on contract points is at least a start. But are we not splitting hairs here? What's the difference between offering points for consideration vs. language for consideration?

If anyone, meaning well, presents a piece that says to consider points A. compensation, B. maintenance, C. truck turn-in procedures, D. etc., and E-Z for the rest; what's to keep some idiot from making a mistake out there and trying to blame, maybe even sue, you for it?

After all, Leo and DaveKC are moderators. Greg334 is known to consult with a high-level attorney and report that attorney's advice right here in the EO forums. The moderators have a title. They have an official role on one of the most prestigious web sites in the transportation industry. Greg334 has friends in high places. These men post credentials in their signature lines. They hold themselves out as experts. (My signature says only that I'm some guy that lives in a truck.) Should not the idiot be entitled to rely on what they say? Should not the experts be held accountable for their words?

After suffering a costly blunder of his own making, the idiot could say the experts he relied on should have included not just point A, but also point A subparagraph 1. And because the experts didn't, and the idiot relied on the experts' advice to draft a contract, the experts are at fault for the idiot's contract shortcomings.

If disclaimers don't matter, neither does it matter whether you are presenting points or language to consider when drafting a contract.

Folks, we can spin any make-believe horror story we want about bad things that might happen if people take our words to heart. My heart goes to the real-world horror stories I see happening in our industry right now. My mind goes to sample language that could benefit drivers and fleet owners alike.

If language scares you, then by all means go with the point-by-point approach. But do something. The need is great.

Finally, just for fun, I went to Google and asked "How do you write a contract?" The results were .....well I best not say lest someone sue me.

 

[Packmule]

Gentlemen,

This is a very complex subject that can be disputed for days.
It really doesn't matter if the contract is 10 pages long or short and to the point as long as both parties are satisfied with it's content.
I personally would not commit to a contract of sort without allowing my own attorney to read and advise me. Not that I don't trust the other party or their attorney, but after all, the contract was written and designed to protect, and be in the best interest of the person who "paid" to have it written.
Sometimes in haste we forget to read the fine print, or read into a statement what WE want to hear...Please, Invest a little up front with a good legal advisor to cover your butt down the road.

Dan

 

[LDB]

The difference, at least from my point of view, is far more than a split end on whatever few hairs I have left. I can post a who/what/when/where/why/how type of question/comment/statement that in my opinion should be included in a contract and if it helps somebody prepare their list for their attorney to include in their contract that's a good thing.

I could post what happens in the event of abandonment? or I could post a specific point such as: In the event of abandonment the party of the first part and the party of the second part shall not be invited to the party because the party of the first part and the party of the second part were party poopers. If I were to attempt to post actual contract language or boilerplate that would be improper and I wouldn't want to risk someone being cheap/stupid enough to cut and paste rather than seek proper counsel.

By limiting my presentation to a thought starter it can not be copied and pasted and used contractually and I'll guarantee that boilerplate will be by someone too cheap/broke to do it right. That is why I believe the thread asking for general questions and important points is the way to go. My .02, YMMV.

Leo Bricker, owner trucks 3034, 4958
OOIDA 677319
73's K5LDB
Highway Watch Participant, Truckerbuddy
EO Forum Moderator 1+ Years of Service
-----
Support the entire Constitution, not just the parts you like.

 

[ATeam]

Leo said,
">By limiting my presentation to a thought starter it can not
>be copied and pasted and used contractually and I'll
>guarantee that boilerplate will be by someone too
>cheap/broke to do it right. That is why I believe the thread
>asking for general questions and important points is the way
>to go. My .02, YMMV."

I'm beginning to come around to your point of view. There are indeed fleet owners out there that are too cheap or broke to do it right. And it will be those that bypass the attorney. Making contract writing easy for them by providing language will not help their drivers. Even with the best contract, drivers will still be stuck with a cheap or broke fleet owner. Best to let that breed of fleet owner die on the vine. When you put it in terms of deficient fleet owners instead of legal risks, I agree with your approach.

That said, there are a whole lot of fleet owners out there that have not consulted an attorney to develop a contract. I fear our discussion may be a bit too frank for some fleet owner tastes.

 

[greg334]

Phil

I find myself in a bit of a quandary.

As much as you make a valid argument with your points and I think you have a good concept, you have completely missed my point and insulted me at the same time (that takes skill, bravo – everyone clap now) and I can’t continue to defend, explain or add to my comments here, so what do I do? Nothing! Well sort of,

I stated I am no expert; please do not bestow that title onto me.

You seem to be taking this too personal, please do not; nothing I or anyone else says is intended to be personal. As for anything you say, I can’t take it personal, we are both trying to help people with different view points.

For the rest, I will save that for offline conversation if anyone wants.

I stand solidly behind my comments and findings, no disclaimers needed.

 

[RichM]

This original well meaning thread by Tony in where he was looking for questions and answers that could be used to help a potential expediter has turned into a driver vs fleet owner contract topic.
Good topic but that was not the main purpose of the thread. How about giving that a rest and get back on the main page.

 

[highway star]

I could'nt agree more, Rich. I saw this as more of a general lifestyle kind of thing instead of focusing on one issue. For sure, the more I read about fleet owner issues I'm glad I did'nt go with the seemingly common advice of starting out with a fleet owner. When it goes well it seems to be a good thing. Davekc gets much respect, Ateam has a good thing going, but when it goes bad...

X1_SRH, who would have thought the little old guy could hand out the kind butt kicking he did in Episode 3?