It is possible that vehicle violations, and safety compliance, and - PDF document

accidents, driver violations, maintenance, (vi) hazmat It is possible that vehicle violations, and safety compliance, and (vii) a crash management records, as indicator. Using 24 months of data can and will compared to the entire carrier inspections, violations, and be used against you population for which data was crashes, the FMCSA calculates a available. The SafeStat BASIC measure for each of the in a court of law - methodology recognized that a above categories. Violations carrier's recent accident history carry different weights based the unintended was the most significant upon severity and incurred date, impact of the indicator of safety performance. with recent violations carrying The legitimacy of the SafeStat greater weight. For Unsafe publication of CSA score as a means of categorizing Driving and Crash Indicator motor carriers was brought into measures, the average number of scores question almost immediately by power units reported over the interested stakeholders. last 18 months and the total Ultimately there was an reported or audited annual The Department of acknowledgement by the Federal mileage are also factors. The Transportation (“DOT”) has Motor Carrier Safety FMCSA ranks motor carriers by always regulated motor carriers Administration (“FMCSA”) of the number of incurred relevant with a focus on ensuring the the potential for inaccurate data inspections and lines them up in safety of the traveling public. and it issued a warning on the order of their measure, assigning Over the last 20 years, the use of the scores by third scores from 0 (best) to 100 parties. 2 proliferation of collected data (worst). Depending on the and its publication by the DOT BASICs and the type of motor The SafeStat methodology gave has changed the focus of carrier, a threshold is established, way in November 2010 to enforcement and created new above which the motor carrier Compliance, Safety, and challenges for the transportation can be placed in an Alert status Accountability, more commonly industry, as more of the source and face an intervention by the referred to as CSA. 3 CSA was information becomes accessible FMCSA. In addition, certain similarly designed as a data- and understandable to the violations during on-site reviews driven program that the FMCSA general public. While the DOT are designated as either “Acute” could use to improve safety and intended only to be transparent or “Critical,” and will put a prevent commercial motor in its assessment by publishing motor carrier in Alert status for vehicle crashes, injuries, and the scores and the underlying the relevant BASIC for 12 fatalities. CSA consists of three data, the unintended impact of months after the violation is core components: the Safety cited regardless of the score. 4 this public display was the use Measurement System (SMS), by third parties of the scores as a Scores are calculated on a interventions, and a Safety benchmark for engaging a motor monthly basis. Upon enactment Fitness Determination (SFD) carrier - to say nothing of its use of the system, motor carriers’ rating system, used to determine as a tool for plaintiffs to assert scores in each BASIC became the safety fitness of motor additional grounds for recovery publicly available on the SMS carriers. These core components against motor carriers, shippers, website. were used to create seven and brokers. Behavior Analysis and Safety Motor carriers who disagree with SafeStat was created in 1999 as a Improvement Categories, an assessment can file a DataQ system to prioritize motor otherwise known as the BASICs. to request a correction and then carriers for onsite compliance The BASICs consist of: (i) track the review of federal and reviews. 1 SafeStat was tasked unsafe driving, (ii) hours of state data that may be incomplete with evaluating carrier service, (iii) driver fitness, (iv) or incorrect. If the information is performance in four areas: controlled substance, (v) vehicle corrected, it may eliminate the

occurrence entirely from the also required the National despite such data being used motor carrier’s record or reduce Research Council of the National routinely in cargo and personal the severity weight of the Academies of Science (“NAS”) injury litigation as weapon to violation 5 . That correction, if to conduct a study on the merits establish malfeasance on accepted, takes time and effort of CSA. Recently released, the someone’s part. by the motor carrier. NAS report provides specific In McComb v Bugarin, 9 a steel information and recommendations for the manufacturer was found not The backlash from the FMCSA to consider. 8 As a result liable for negligent selection of a publication of scores and alerts of this study, it is expected that trucking company after the semi- reverberated throughout the the coming years will likely see tractor trailer hauling the trucking industry almost changes to the system, but not its manufacturer’s steel injured the immediately. Efforts were made complete disappearance. plaintiff. The rig was driven by to change the methodology and an independent contractor modify wording to minimize its operating under authority of the impact in the real trucking world. Regardless of how the system common carrier. The allegation For five years motor carriers and changes or publishes data, the that the manufacturer failed to transportation brokers sought to information will continue to sufficiently inquire about the remove the scores from public impact the way motor carriers, allegedly deficient safety rating view, arguing that the evaluation truck brokers, and shippers for the common carrier (with by the FMCSA was not truly operate. Such data is still respect to vehicle maintenance) reflective of crash accountability. discoverable in litigation and has was insufficient to show that it become an integral part of was a proximate cause of the trucking litigation, as well as the Legislation was proposed in the motorist’s injuries. In Rogers v evaluation of motor carriers for House of Representatives to South Star Logistics, Inc, 10 the work, the insurance underwriting create a national standard for the court concluded, in response to a process, and for risk assessment hiring of motor carriers. 6 The motion in limine , that a motor by any related operation. proposed legislation would carrier’s CSA scores could be Readers of this article have immunize a hiring entity upon admitted upon establishing a likely noticed already that every verifying that the motor carrier proper evidentiary foundation news report of a truck or bus was licensed by the FMCSA, about the circumstances of the accident now includes a list of all maintained minimum insurance accident, as well as the of the company’s violations, coverage, and did not have an authenticity and relevance of whether relevant to the loss or unsatisfactory safety rating. each document. See also not. However, the proposed McLane v. Rich Transp., Inc., 11 legislation has yet to come out of (expert can testify about CSA committee. While the issue of the score and on road performance preemptive effect of FAAAA percentile). and ICCTA on claims against After much lobbying by certain brokers and shippers for stakeholders, Congress The fact that accuracy of the data negligent hiring of motor carriers intervened with the enactment of may be subject to attack, and is is litigated daily with a variety of the FAST Act of 2015. 7 The intended for other purposes, did results, there is no question that legislation removed certain not prevent the court from the aforementioned data is also information on a property considering it on a motion to rearing its head in litigation in carrier’s compliance and safety dismiss in Turner v. Syfan the trucking industry – also with performance from public display. Logistics, Inc. 12 There, the differing results. Surprisingly However, information on plaintiff brought a negligent there are few reported decisions passenger carriers was not hiring claim based on the in which the court actually removed and remains easily broker’s failure to check or discusses the information, accessible today. The FAST Act investigate the trucking