The Claim
The word was out among trucking companies: on North Carolina highways - even if you're operating with a special permit - a violation of escort requirements could be compounded with huge overweight penalties. To many truckers, both the amount of the fines, and, more importantly, the way they were being assessed seemed to be excessive and unfair. With Parker Poe’s help, one company fought back and won a significant victory for trucking companies hauling oversized and overweight freight through the state.

Daily Express, a carrier based in Carlisle, PA, had a special use permit to haul an oversize load totaling 196,000 lbs., more than twice the 80,000-lb. weight normally allowed. However, the company failed to engage a second escort for the segment of its trip through North Carolina as required by law.  The Department of Crime Control and Public Safety, Division of State Highway Patrol (DSHP) cited Daily Express for the violation, the fine for which was $500.  But the patrol also determined that the violation invalidated the overweight special use permit, and slapped the company with an additional fine of nearly $25,000 for its load being over the base weight limit. 

Daily Express sued to have the overweight fine thrown out, claiming among other issues that state highway patrol officers did not have legal authority to invalidate special use permits based on lesser infractions. Susan Dunathan of Parker Poe’s Raleigh office, represented the company in the case.

The Judgment
Superior Court Judge Kenneth C. Titus ruled January 31, 2008 that the DSHP improperly invalidated Daily Express’ special permit for hauling overweight loads and ordered the state to repay the company the more than $24,000 fine plus interest. At the hearing, DSHP acknowledged that it had no authority to invalidate special permits, but argued that failure to comply with the escort requirement caused the special permit to be temporarily suspended, thus allowing it to assess a statutory overweight penalty based on the license weight of 80,000 lbs. The judge disagreed, ruling that an operational violation does not negate the weight allowance stated on a special permit.

The Outcome
DSHP regularly issues overweight citations based on operational violations of otherwise valid permits.  In 2006 alone, more than 100 trucking companies faced stiff penalties despite having a special permit and regardless of whether or not they were within the weight allowance. According to a January 2008 story in the News & Observer newspaper in Raleigh, state troopers have assessed $38.8 million in fines since gaining the authority in 2004 to penalize overweight trucks. The vast majority of the tickets are not contested, according to DSHP as reported by the newspaper.

Moreover, until January 1, 2008 the statute required violators to pay fines before having the opportunity to appeal the decision or being allowed to continue on their trips, which often resulted in delays while payment arrangements were made. The combination of exorbitant fines and hindrance to their enterprises was having a debilitating effect on many trucking companies, especially smaller ones, attempting to do business in the state.

The ruling is one of the first to address DSHP’s practice of invalidating special permits based on operational violations, and DSHP is likely to file an appeal to the North Carolina Court of Appeals. Parker Poe currently represents a total of ten trucking companies; nine in addition to Daily Express.

The Attorney
Susan Dunathan is an associate in Parker Poe’s Regulatory Department, where she focuses her practice in administrative and construction litigation, government procurement, contracts and warranties. Dunathan represents clients in a wide range of issues including administrative appeals of state agency decisions, procurement proceedings, construction and contract disputes, and Magnusson Moss and Uniform Commercial Code Warranty issues.  In addition to the trucking cases cited here, she has also represented clients before the N.C. Department of Insurance regarding licensing issues, and in disputes with the state’s Department of Transportation concerning bidding on state projects.