For The Defense, December 2011 - DRI Today

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Trucking Law Intervention and “Notice” With every “intervention” the plaintiffs’ bar can argue that a motor carrier received a level of “notice” regarding a potential safety issue. For example, if a motor carrier receives a warning letter as a result of its “vehicle maintenance” BASIC percentile rank, and if a plaintiff later sues the carrier over a motor vehicle accident alleging that a defective brake caused the accident, the plaintiff can allege that the motor carrier received notice of vehicle maintenance problems before the accident but did not take corrective action. Also, because time will lapse under the CSA operational model between collecting and analyzing data and finally issuing a warning letter, by the time that the FMCSA determines that a motor carrier should receive an intervention, that motor carrier may have already corrected a problem to comply fully with standards, perhaps even before it received a warning letter. Litigation Concerns Aspects of the CSA program have some troubling consequences for motor carriers in litigation. In particular, the safety event groups, the crash report data collected in the SMS, and cargo- related interventions can have some troublesome consequences. Revolving Safety Event Groups The safety event groups are designed to change on a rolling basis. This means that a motor carrier’s percentile score in a specific BASIC will change based on the actions of other carriers in that same group. According to Dr. Gillette, for example, if your trucking company safety event group for a BASIC has 100 companies, each company will receive a number between 1 and 100. If your trucking company scores 49 in that BASIC, and if another trucking company in your group that scores 83 decides to fire its safety director and to hire a new one, over the next six months, its BASIC score may fall from 83 to 30. As a result, your score could increase from 49 to 50 or 55. Once placed in a safety event group for a specific BASIC, each motor carrier’s score for that BASIC changes constantly as the SMS receives more data from additional inspections, or as time passes and corresponding time weights for violations decrease. If inspecting another motor 76 ■ For The Defense ■ December 2011 carrier in your safety event group for a BASIC reveals a violation, its score for that BASIC will increase. Another motor carrier with a higher score than your score may have its score suddenly drop below yours just because six months passed and time weights on some of the other company’s violations decreased. If your company transfers into a different safety event groups next month because it adds 50 new trucks, even though the company has not done anything differently, your score could skyrocket or plummet depending on what other companies in your safety event group do. More than your own internal company operations will affect your company’s scores in the BASICs: what your neighbors and your competition do will impact your scores. The scores of the other motor carriers within your safety event group may drop and push your score over a permissible threshold, potentially subjecting you to an intervention. Dr. Gillette stated that in her opinion, the rolling safety event groups are “as close to a fatal flaw as CSA has.” Additionally, if a motor carrier transfers into another safety event group, for whatever reason, depending on how it ranks compared with the other motor carriers, the change alone could subject the carrier to an immediate intervention, and simply purchasing more trucks or undergoing additional inspections can precipitate a transfer to another safety event group. If one motor carrier with a score above the applicable threshold has its score drop below the threshold, that will push another motor carrier over the threshold, potentially subjecting that other carrier to intervention, and not necessarily because the carrier receiving the intervention failed to comply with safety standards. To prepare to handle potential litigation due to these rolling safety event groups, motor carriers and their attorneys must first understand why the FMCSA subjects a carrier to an intervention. For instance, did a score change because another motor carrier’s score changed? Next, a motor carrier should take preventive action every time it experiences an applicable violation that will end up in the SMS in a BASIC. A motor carrier and its attorney should plan to respond to any level of FMCSA intervention, even a warning letter, regardless of why the FMCSA intervened, even if that carrier experienced a percentile ranking change precipitated through no fault of the company. Promptly investigating and attending to an intervention initiated by the FMCSA, regardless of the level or the precipitating circumstances, will go a long way to curb litigation that may arise from a motor vehicle accident. Further, motor carriers and their attorneys need to understand that interventions caused by a rolling safety event group have some troubling implications for punitive damages. When a plaintiff is injured in a motor vehicle accident involving a tractor- trailer, his or her attorney almost invariably demands to see at least six months worth of the driver’s log books. If the plaintiff’s attorney finds many violations, those violations can support a claim for punitive damages. As the Supreme Court stated, The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct. We have instructed courts to determine the reprehensibility of a defendant by considering whether:… the conduct involved repeated actions or was an isolated incident;… punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence. State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (citing BMW of N. Am. v. Gore, 517 U.S. 559, 575 (1996)) (emphasis added). The more instances of conduct that a plaintiff’s attorney can point to, the stronger the plaintiff’s claim for punitive damages becomes. The CSA data collection system will make greater amounts of motor carrier data more easily available to plaintiffs’ attorneys than in the past, so motor carriers’ attorneys must prepare to defend clients against plaintiffs asserting punitive damage claims. The Federal Circuit Courts have not spoken decisively on whether driver violations of FMCSA rules, such as hours- of- service rules, warrant awarding punitive damages to plaintiffs. However, if a motor carrier has several hours- of- service violations, a plain-
tiff’s attorney can allege that the violations support a claim that a carrier knew or encouraged drivers to operate beyond the allowable hours of service, or that the carrier did not have an effective procedure to monitor drivers’ hours- of- service compliance. Similarly, a plaintiff’s attorney can use violations found in a “vehicle maintenance” BASIC to support an allegation that a motor carrier either did not exercise due care in repairing and maintaining its fleet or altogether did not have an effective procedure to monitor its vehicles’ mechanical conditions. Imagine a motor carrier with multiple log-book violations recorded in the SMS in the “fatigued driving (hours- of- service)” BASIC. Even if the carrier complies fully after the fact, that carrier’s percentile in that BASIC may increase if other carriers improve in that category, and the carrier could receive a warning letter. Then, if a driver for the motor carrier has an accident and a plaintiff sues the motor carrier alleging fatigued driving as a cause, the plaintiff’s attorney will not only have access to “evidence” demonstrating previous instances of “fatigued driving,” but also a warning letter received by the carrier to support a claim for punitive damages, even though the carrier’s fatigued driving violations didn’t bring on the warning letter. In this scenario, the “allegedly repetitive conduct” could defeat a motion for a summary judgment on the claim for punitive damages, and at the very least, could compromise a motor carrier’s settlement position. Reportable Crashes Another major concern raised by the SMS methodology has to do with “crash accountability.” The SMS collects all reportable state and local DOT crash reports for the “crash indicator” category, all of which count against that particular motor carrier’s score regardless of the carrier’s actual fault. Thus, many crash scenarios may occur that do not even involve the conduct of a motor carrier’s driver that will increase the motor carrier’s BASIC score. For example, under this methodology, a truck driver stopped at a stop light who is rear-ended will be held accountable for a crash that he or she had nothing to do with. Or, if a truck driver is headed down a highway and another vehicle on the other side of an interstate kicks a tire over into the truck driver’s lane that hits the driver’s trailer, the truck driver, and therefore, the motor carrier, could have a reportable crash in their records. Dr. Gillette and others agree that the CSA should not use these types of crashes to judge a motor carrier, and they, along with individuals from the FMCSA, agree that the agency needs to find a way to expunge these types of crashes from a motor carrier’s record. Again, having additional “crashes” in motor carriers’ SMS records opens the door for the plaintiffs’ bar to question carrier safety procedures in front of a jury. Moreover, the more “crashes” in a motor carrier’s SMS record, the greater their potential exposure to punitive damages. Motor carriers and their attorneys must adopt systems to investigate and document all reportable crashes in the carriers’ SMS records and to take necessary corrective actions immediately. If a crash occurs that uncovers a violation relating to the driver’s log book, a motor carrier AREAS OF EXPERTISE • Construction Defect Evaluations • Construction Disputes • Moisture Intrusion Analysis • Roof Damage Evaluations • Construction Accidents • Vibration Damage Evaluations TO SUBMIT AN ASSIGNMENT: should investigate and consider adopting a policy of spot- checking driver log books for FMCSA compliance. Even if a “crash” occurs because a tire flies across an interstate and strikes a truck, the motor carrier should investigate, and if the motor carrier determines that nothing could have helped prevent the accident or corrective action is not necessary, then the motor carrier should document that conclusion. Keeping a proper paper trail will be the best way to combat the wealth of data concerning a motor carrier’s on-the-road performance that the FMCSA will make available to the public and to plaintiffs’ attorneys. Cargo-Related Problems A third major litigation concern for motor carriers is that the SMS methodology potentially will subject carriers to interventions for alleged violations relating to load securement and cargo. In many cases, a contract charges a shipper with FMSCA Evaluation
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22 ■ For The Defense ■ December
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For The Defense, December 2011 - DRI Today

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