IN a recent presentation to the Federal Motor Carrier Safety Administration, the American Trucking Association submitted several concerns about the Comprehensive Safety Analysis (CSA), which has been in effect since 2010 to improve the efficiency and effectiveness of the FMCSA's compliance program.
We all know that scoring of Behavioral Analysis Safety Improvement Categories (BASICS) include:
- Unsafe Driving
- Fatigued Driving
- Driver Fitness
- Controlled Dangerous Substances
- Vehicle Maintenance
- Cargo Related Issues, and
- Crash Indicators
Based on these scores, it is assumed that the FMCSA can determine the likelihood of future accidents. I have a problem with this assumption. It is a well established rule of evidence that past conduct should NOT be used to prove present liability. In my mind this is kind of like allowing "character evidence" to prove that person has a propensity to commit a wrong. No matter what I think, this is the law and we have to deal with it.
In October of 2012, the ATA listed the following as concerns about the application of CSA that must be used to argue against the CSA scores being used against a driver or his employer:
• Carriers’ scores in three of CSA’s seven measurement categories (43 percent of the system) do not effectively identify future crash risk.
• FMCSA only has sufficient violation data to assign a percentile rank (in at least one category) to 12 percent of active carriers.
• And as a recent analysis by the American Transportation Research Institute highlighted: perceived safety risk is heavily dependent on the amount of data available on each motor carrier and it is wrong to conclude that carriers with insufficient data to be scored are safer than those that have reported data.
The ATA has a brief "white paper" submitted by Rob Abbot, Vice President for Safety Policy, to the FMCSA requesting a more balanced perspective. Obviously, you can request the paper from the ATA, but I have it on file in case you are unable to get a timely response from the ATA. These are good arguments against use of CSA scores in a liability.
Send me an e-mail to perkins@perkinsfirm.com and I will send you a copy. Some of the balanced information suggested by the ATA include:
FMCSA statement: Past crash involvement, regardless of fault, is a strong predictor of future crash involvement.
A more balanced perspective suggested by the ATA:
FMCSA carefully uses the term “involvement” in this context. This does not mean these carriers are more likely to be at fault in a future crash, but rather that they operate in an environment (e.g., urban setting), where there is elevated exposure and they are more likely to be involved in a future crash. Increased crash involvement is often a function of exposure, not necessarily a reflection of safety problems. For instance, urban carriers are more likely to be involved in crashes than rural carriers – but not because they are any less “safe.”
FMCSA’s own safety rating process acknowledges this fact and applies a higher acceptable
FMCSA’s own safety rating process acknowledges this fact and applies a higher acceptable
threshold for crash rates to carriers operating in urban environments.
In other words, instead of using "statistical data" to prove liability or a propensity to liability, let's just take each case independently. Isn't this what we were taught in law school? What are your thoughts? Please make some comments here.
With FMCSA taking over the Pre-Pass system and more carriers going electronic logs, legal liability (where the truck was not supposed to be there) will become easier to prove in an accident. As a 38 year veteran of the industry, I know to electronically 'mark' myself a number of times each work day either by fueling, purchasing something with a credit/debit card or using my truck stop rewards card. Marking my movements and always being fairly close to where I'm actually supposed to be protects my company from liability in an accident PROVIDED it wasn't due to my negligence.
ReplyDeleteMy company has resisted electronic logs because of the expense and the fact that in a roadside inspection, a driver needs to be able to show an officer a grid style log that shows his/her hours of duty status. Many of the lower cost logging systems offered on the market today can't show a grid so the driver will be put out of service for no log book.
When CSA2010 was announced, I felt the industry was under attack by the government and safety groups or the law was being manipulated by the big carriers to gain market share (I still think this is happening). However, after 3 years, I must admit that the drivers/carriers who are taking care of business and keeping their MVR/CSA score clean are seeing a noticeable increase in compensation if their experience level is high. Brokers & shippers due diligence and give the business to those who are highly rated.
Granted, new drivers are being taken advantage of when they first start with a major carrier but once a year or two of ticket free/accident free driving is in their pocket, the pay increases.
As regulation continues to remove unsafe and poorly run carriers/drivers from the market, the result will be more revenue for everyone in the business. The law of supply & demand always works.