Concern about vicarious liability lawsuits resulting from the public release of Comprehensive Safety Analysis (CSA) 2010 data prompted a legal motion to be filed with the U.S. Court of Appeals by three trucking associations, representing 3,000 privately owned fleets. The motion, filed Nov. 29, 2010, seeks a permanent injunction to the public release of CSA 2010 data with percentile ranking by the Federal Motor Carrier Safety Administration (FMCSA).

On Dec. 10, the U.S. Court of Appeals denied the request by the three trucking associations for a temporary restraining order to prevent the initial public release of CSA 2010 data. Although the petitioners lost a premliminary motion, the Court of Appeals set an expedited briefing schedule to deliberate whether to enact a permanent injunction on the release of CSA data to the public.

The motion was filed by the National Association of Small Trucking Companies (NASTC), The Expedite Alliance of North America (TEANA), and the Air & Expedited Motor Carrier Association (AEMCA), which "unequivocally oppose release of unscrubbed CSA 2010 data." According to the motion, the FMCSA does "not fully comprehend the effect the release of CSA 2010, in its current format, to the public will have on small carriers."

In its present form, the FMCSA will release raw CSA 2010 data concerning every local, state, and federal recordable safety incident, including warnings, citations, and out-of-service orders to the public. Unscrubbed data will be statistically accumulated by carriers, sorted into six BASICs (Behavioral Analysis and Safety Improvement Categories), and then scores will be assessed by percentile ranking in peer groups consisting of tens of thousands of operationally dissimilar carriers. Based upon these percentile rankings of carriers, a small fleet can be described as under "alert" if deficient in at least one of six BASIC areas. As defined in CSA 2010, the six BASIC categories that are covered are: unsafe driving, driving when fatigued, drivers unfit to operate a commercial vehicle, operation of a vehicle while impaired due to alcohol or drugs, improper maintenance, and crash/incident experience. The legal motion predicts the public release of CSA data will be a "train wreck ... exacerbating the vicarious liability issue with drastic, unintended economic consequences."

Vicarious Liability Threat

Vicarious liability has been a major issue in the truck rental industry for years. Vicarious liability is created by an action or non-action by someone working on your behalf. As it applies to interstate trucking, a shipper or broker, as the customer of a safety regulated motor carrier (or vendor), can be vicariously liable or responsible for negligent selection when it hires a carrier that FMCSA regulates. Lawsuits involving vicarious liability are part of a broad trend in tort cases where the court seeks awards from secondary parties.

"Major shippers, brokers, and intermodal carriers have already indicated they feel compelled by the threat of vicarious liability to bar use of any carrier shown to be under "alert"l in any of the six BASIC areas," wrote Henry Seaton, the attorney representing NASTC, AEMCA, and TEANA.

There is legal precedent for these vicarious liability concerns. Two notable legal decisions - Schramm v. Foster (2004) and Jones v. D'Souza (2007) - established that shippers may be held liable for "negligent hiring" of truckers. In Schramm v. Foster, a Maryland court ruling found a third-party logistics company guilty of hiring a carrier that caused an accident and did not take into account the company's FMCSA rating prior to hiring.

Catastrophic Effect

Today, FMCSA can only audit about 2 percent of truck fleets, which, by default, means only high-risk fleets get real attention. Prior to CSA, the FMCSA instituted its compliance review and safety ratings - satisfactory, conditional, and unsatisfactory, which have been in place for more than 20 years. Known as SafeStat, this process triggered an audit based on a complaint or one or more fatal accidents. CSA 2010 replaced SafeStat. CSA 2010 applies to all truck fleets that operate interstate and require a U.S. DOT number, which includes all vehicles with a 10,001-lb. combined GVWR or greater.

However, there are concerns about the data collection method of CSA 2010, data accuracy, and its relevance to safety. Opponents argue that CSA 2010 has not been subject to review or rulemaking and there have been no analysis of its impact on small businesses. In addition, there are unanswered questions as to the procedures to determine whether an alleged violation is accurate. The three trucking associations say they want to work with the FMCSA to develop a new, less costly methodology.

"Last year, the FMCSA audited less than 17,000 motor carriers, choosing only the statistically worst for audit, and found less than 6,000 unsatisfactory or conditional (62 percent were satisfactory)," wrote Seaton. "Release of this data, as currently proposed, will have a catastrophic effect on small carriers and the shippers and brokers who use them"

The legal motion predicts there will have the "unintended consequence of bankruptcies and loss of jobs due to unrebutted vicarious liability concerns." As a result of this clearly foreseeable consequence, the legal motion asks the court to provide relief to these small fleets.

Let me know what you think.

mike.antich@bobit.com