We all knew it was coming; plaintiff’s attorneys have started to devise ways to use CSA against motor carriers. The American Association for Justice (formerly the Association of Trial Lawyers of America) published an article in its February 2011 magazine outlining how plaintiff’s attorneys (now wanting to be known as “civil justice attorneys”) should use particular discovery steps to use CSA and PSP data against motor carriers. While it is disconcerting to know that the plaintiff’s attorneys are organizing around CSA, it is beneficial to know how they plan to use the data so you can take steps to protect your company.
The article had three main areas of focus. First, the Pre-employment Screening Program (PSP). We have discussed this program previously here. The plaintiff’s attorneys plan to use the PSP as a double edged sword. If you do not utilize the program to screen job applicants for safety violations, they will paint your company as lackadaisical when it comes to doing your due diligence when hiring drivers. However, if you do use PSP, the plaintiff’s attorneys will request the report and information obtained. The plaintiff’s attorney will latch on to any violation contained in the report. To protect against attacks based on PSP data, each motor carrier should develop a policy to screen all driver job applicants through PSP. It would be virtually impossible to staff a trucking company only with drivers who have no violations. Rather, each company needs to develop a policy, and abide by it, as to what violations, by number and/or severity, will disqualify a driver from employment with your company and only offer positions to those drivers that meet your company’s PSP policy.
Second, the plaintiff’s attorneys will be focusing on CSA interventions. Plaintiff’s attorneys will be trying to identify and take advantage of any and all CSA interventions under taken against your company in the three years before the accident and for one year after the accident. In response to a plaintiff’s attorney’s use of interventions, your company should be prepared to provide documentation regarding its response to any CSA intervention. As has been discussed here, the lowest level of CSA intervention is a warning letter. While a motor carrier is not required to respond directly to a warning letter, every motor carrier should be taking corrective actions if they receive a warning letter. With any form of intervention, the motor carrier should be documenting all corrective actions taken in response to CSA interventions. This documentation will lessen the impact of a plaintiff’s attorney’s arguments regarding the interventions.
Finally, the plaintiff’s attorneys will be trying to use any BASIC “Alert” against the motor carrier. The article suggests using requests for admissions including:
• Do you admit that a violation of a BASIC can lead to a crash?
• Do you admit that violation of a BASIC increases the risk of a crash?
• Do you admit that any violation of a BASIC is unsafe?
• Do you admit that violation of a BASIC endangers the public?
These requests for admission initially appear fairly damning, even if highly dubious for a number of reasons. Fortunately, last week there was a settlement regarding CSA’s Safety Measurement System (SMS) public website between the FMCSA and three motor carrier trade associations – The National Association of Small Trucking Companies (NASTC), The Expedite Alliance of North America (TEANA), and the Air & Expedited Motor Carrier Association (AEMCA). The motor carrier trade associations were represented by fellow transportation attorney Henry Seaton. The key changes that FMCSA will make to the SMS public website by March 25, 2011 will be to replace any ALERT symbol currently displayed in orange on the SMS website with the symbol of an exclamation mark inside a gold triangle. The FMCSA will also revise the disclaimer language on the SMS website to read:
The data in the Safety Measurement System (SMS) is performance data used by the Agency and enforcement community. A triangle symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring. The symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 31144. Readers should not draw conclusions about a carrier’s overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation’s roadways. Motor carrier safety ratings are available at http://safer.fmcsa.dot.gov and motor carrier licensing and insurance status are available at http://li-public.fmcsa.dot.gov.
The key point to take away is that motor carriers must become more vigilant in ensuring their compliance with the safety regulations because the data is going to be much more transparent under CSA. If your company needs assistance in developing a policy to use PSP in hiring or responding to an FMCSA intervention, please do not hesitate to contact our office.