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

It is possible that data can and will be used against you in a court of law - the unintended impact of the publication of CSA scores

The Department of Transportation (“DOT”) has always regulated motor carriers with a focus on ensuring the safety of the traveling public. Over the last 20 years, the proliferation of collected data and its publication by the DOT has changed the focus of enforcement and created new challenges for the transportation industry, as more of the source information becomes accessible and understandable to the general public. While the DOT intended only to be transparent in its assessment by publishing the scores and the underlying data, the unintended impact of this public display was the use by third parties of the scores as a benchmark for engaging a motor carrier - to say nothing of its use as a tool for plaintiffs to assert additional grounds for recovery against motor carriers, shippers, and brokers. SafeStat was created in 1999 as a system to prioritize motor carriers for onsite compliance reviews.1 SafeStat was tasked with evaluating carrier performance in four areas: accidents, driver violations, vehicle violations, and safety management records, as compared to the entire carrier population for which data was

• available. The SafeStat

methodology recognized that a carrier's recent accident history was the most significant indicator of safety performance. The legitimacy of the SafeStat score as a means of categorizing motor carriers was brought into question almost immediately by interested stakeholders. Ultimately there was an acknowledgement by the Federal Motor Carrier Safety Administration (“FMCSA”) of the potential for inaccurate data and it issued a warning on the use of the scores by third parties.2 The SafeStat methodology gave way in November 2010 to Compliance, Safety, and Accountability, more commonly referred to as CSA.3 CSA was similarly designed as a data- driven program that the FMCSA could use to improve safety and prevent commercial motor vehicle crashes, injuries, and

• fatalities. CSA consists of three

core components: the Safety Measurement System (SMS), interventions, and a Safety Fitness Determination (SFD) rating system, used to determine the safety fitness of motor

• carriers. These core components

were used to create seven Behavior Analysis and Safety Improvement Categories,

• therwise known as the BASICs.

The BASICs consist of: (i) unsafe driving, (ii) hours of service, (iii) driver fitness, (iv) controlled substance, (v) vehicle maintenance, (vi) hazmat compliance, and (vii) a crash

• indicator. Using 24 months of

inspections, violations, and crashes, the FMCSA calculates a BASIC measure for each of the above categories. Violations carry different weights based upon severity and incurred date, with recent violations carrying greater weight. For Unsafe Driving and Crash Indicator measures, the average number of power units reported over the last 18 months and the total reported or audited annual mileage are also factors. The FMCSA ranks motor carriers by the number of incurred relevant inspections and lines them up in

• rder of their measure, assigning

scores from 0 (best) to 100 (worst). Depending on the BASICs and the type of motor carrier, a threshold is established, above which the motor carrier can be placed in an Alert status and face an intervention by the

• FMCSA. In addition, certain

violations during on-site reviews are designated as either “Acute”

• r “Critical,” and will put a

motor carrier in Alert status for the relevant BASIC for 12 months after the violation is cited regardless of the score.4 Scores are calculated on a monthly basis. Upon enactment

• f the system, motor carriers’

scores in each BASIC became publicly available on the SMS website. Motor carriers who disagree with an assessment can file a DataQ to request a correction and then track the review of federal and state data that may be incomplete

• r incorrect. If the information is

corrected, it may eliminate the

• ccurrence entirely from the

motor carrier’s record or reduce the severity weight of the

• violation5. That correction, if

accepted, takes time and effort by the motor carrier. The backlash from the publication of scores and alerts reverberated throughout the trucking industry almost

• immediately. Efforts were made

to change the methodology and modify wording to minimize its impact in the real trucking world. For five years motor carriers and transportation brokers sought to remove the scores from public view, arguing that the evaluation by the FMCSA was not truly reflective of crash accountability. Legislation was proposed in the House of Representatives to create a national standard for the hiring of motor carriers.6 The proposed legislation would immunize a hiring entity upon verifying that the motor carrier was licensed by the FMCSA, maintained minimum insurance coverage, and did not have an unsatisfactory safety rating. However, the proposed legislation has yet to come out of committee. After much lobbying by certain stakeholders, Congress intervened with the enactment of the FAST Act of 2015.7 The legislation removed certain information on a property carrier’s compliance and safety performance from public display. However, information on passenger carriers was not removed and remains easily accessible today. The FAST Act also required the National Research Council of the National Academies of Science (“NAS”) to conduct a study on the merits

• f CSA. Recently released, the

NAS report provides specific information and recommendations for the FMCSA to consider.8 As a result

• f this study, it is expected that

the coming years will likely see changes to the system, but not its complete disappearance. Regardless of how the system changes or publishes data, the information will continue to impact the way motor carriers, truck brokers, and shippers

• perate. Such data is still

discoverable in litigation and has become an integral part of trucking litigation, as well as the evaluation of motor carriers for work, the insurance underwriting process, and for risk assessment by any related operation. Readers of this article have likely noticed already that every news report of a truck or bus accident now includes a list of all

• f the company’s violations,

whether relevant to the loss or not. While the issue of the preemptive effect of FAAAA and ICCTA on claims against brokers and shippers for negligent hiring of motor carriers is litigated daily with a variety of results, there is no question that the aforementioned data is also rearing its head in litigation in the trucking industry – also with differing results. Surprisingly there are few reported decisions in which the court actually discusses the information, despite such data being used routinely in cargo and personal injury litigation as weapon to establish malfeasance on someone’s part. In McComb v Bugarin, 9 a steel manufacturer was found not liable for negligent selection of a trucking company after the semi- tractor trailer hauling the manufacturer’s steel injured the

• plaintiff. The rig was driven by

an independent contractor

• perating under authority of the

common carrier. The allegation that the manufacturer failed to sufficiently inquire about the allegedly deficient safety rating for the common carrier (with respect to vehicle maintenance) was insufficient to show that it was a proximate cause of the motorist’s injuries. In Rogers v South Star Logistics, Inc,10 the court concluded, in response to a motion in limine, that a motor carrier’s CSA scores could be admitted upon establishing a proper evidentiary foundation about the circumstances of the accident, as well as the authenticity and relevance of each document. See also McLane v. Rich Transp., Inc.,11 (expert can testify about CSA score and on road performance percentile). The fact that accuracy of the data may be subject to attack, and is intended for other purposes, did not prevent the court from considering it on a motion to dismiss in Turner v. Syfan Logistics, Inc.12 There, the plaintiff brought a negligent hiring claim based on the broker’s failure to check or investigate the trucking

company’s safety data on the FMCSA website. The court declined to dismiss the negligent hiring claim, concluding that attacks on the reliability of the data could be used by the broker in defense of the claim and leaving the question of whether the motor carrier’s scores should be a factor in the hiring process to the jury. Some defendants have been successful in defeating asserted caused of action by demonstrating proper evaluation

• f carrier information. The

success of this defense raises the possibility that the scores are or will become a benchmark for due diligence in engaging a motor carrier. For example, in Laumann v ALTL, Inc.,13 the motor carrier defeated a negligent retention claim on summary judgment, when the evidence showed that the motor carrier ran a criminal background check and reviewed the CSA, DAC report and the MVR both at the time of employment and throughout the engagement of the driver. In Cervetto v Powell,14 a truck driver sought to obtain damages from another trucking company, claiming that he lost business as a result of a post-accident increase in CSA scores. Due to a technicality, the court rejected plaintiff’s efforts to testify as to the lost business caused by the reduction in scores. The court reached that conclusion because the plaintiff could not present himself as an expert on the issue

• - leaving open the question of

whether a trucking company could use the impact of the scores as a sword against a third party involved in a crash with the carrier. As the cases move through the judicial system, shippers and brokers are considering whether it is necessary to evaluate motor carriers based on the number and type of violations or alerts. Such review would potentially remove some motor carriers from their stables of operators, despite the fact that they are properly licensed and insured. Insurers too are evaluating whether certain alerts and violations pose a greater risk of crashes or other third party injuries. They also recognize the potential increase in jury verdicts for motor carriers with certain relevant violations, which may ultimately impact the pool of insurers available to any motor carrier. On a positive note, the focus on violations and scores will hopefully allow for corrections and adjustments in motor carrier

• perations, thereby making the

roadways safer for all and allowing other interested stakeholders to assist motor carriers in correcting perceived deficiencies. As motor carriers become more aware of the information collected by DOT and their ability to challenge that information through the DataQ process the quality of data should improve and facilitate a better analysis of the safety of a motor carrier. Big data is here to stay even if its form and substance changes. It will continue to have an impact

• n litigation and business
• perations. Motor carriers and

counsel need to stay abreast of the information and consider its impact on the business at hand. Everyone else will.

1 John A. Volpe Nat’l Transp. Sys Ctr SafeStat, Motor Carrier Safety Status Measurement System Methodology Version 8.6,

January, 2004

2 Https://ai.fmcsa.dot.gov/safestat/warningii.htm 3 Withdrawal of Proposed Improvements to SafeStat and Implementation of CSMS, 75 Fed.Reg. 18,256, 18,257–58 (Apr. 9, 2010). 4 Fed. Motor Carrier Safety Admin., Safety Measurement System (SMS) Methodology: Behavior Analysis and Safety Improvement

Category (BASIC) Prioritization Status, available at: https://csa.fmcsa.dot.gov/Documents/SMSMethodology.pdf

5 https://dataqs.fmcsa.dot.gov/Default.aspx?enc=4orUr4VSakAlYsjxOmHrCeQ158IknHedB20QvqZJtcw=

6 See H.R. 1120, 114th Cong. §1 (2015) National Standard for Hiring Motor Carriers

7 Fixing America’s Surface Transportation Act. Pub L. No 114-94, 129 Stat 1312 (2015) 8 Nat’l

Academy

• f

Sciences, Improving Motor Carrier Safety Measurement, June, 2017 https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/mission/policy/82226/nas-report-final-june-2017.pdf

9 McComb v Bugarin, 20 F.Supp.3d 676 (N.D. Ill 2014) 10 Rogers v South Star Logistics, Inc., 2015 WL 3485021 (M.D.AL) 11 McLane v. Rich Transp., Inc., 2012 WL 3996832, at *2 (E.D. Ark. Sept. 7, 2012) 12 Turner v. Syfan Logistics, Inc., 2016 WL 1559176 (W.D. Va. Apr. 18, 2016) 13 Laumann v ALTL, Inc, 2016 WL 28984 (S.D OH 14 Cervetto v Powell,, 2015 WL 7960791 (W.D. KY)