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blame, is protected by an indemnity clause, he a public relations problem. In fact, in
Continued from page 22 won’t be nearly as concerned about lim- some states, they didn’t even actively
iting the damage to whatever vehicle he oppose the efforts. Meanwhile, trial
improperly so that it leads to an acci- is towing. attorneys hoping to win cases against
dent, yet the carrier would be liable shippers have been supportive of carri-
for the damages even though it had no oTHEr STaTES ers’ efforts. Shippers could have argued
way of preventing the problem or even Thirty-five (35) states already have they needed to protect their deep
knowing a problem existed. In that case, passed an anti-indemnification law, pockets against huge lawsuits, but they
the party actually at fault had no finan- and the rest are either pursuing or usually have not done so. The trucking
cial incentive to behave safely, while considering such legislation. According industry’s big difficulty, Pitcher said,
the party legally responsible had no way to Bob Pitcher, vice president of has come when small carriers have been
of creating a safe outcome. In another state laws for the American Trucking unwilling to testify before legislatures
case, a shipper could fail to notify a Associations, state trucking associa- for fear of retaliation by shippers.
carrier that it is transporting hazard- tions have enjoyed consistent success Sometimes shippers have argued
ous material. That would result in lower in enacting the statutes since the the government shouldn’t meddle in
costs for the shipper but more liability national association first took a major private contracts, but that one has been
—not to mention more danger—for the interest in the issue in 2008. At that fairly easy to counteract. “Commonly
carrier. time, Pitcher estimated that only six to we’ve been able to overcome that
because, like it or not, government gen-
erally does meddle in contracts of all
kinds these days—sometimes for good
reason. And we could make the case
that this is one of those occasions where
there are good reasons,” Pitcher said.
“goVerNmeNt geNerally does meddle iN Pitcher said, given the difficulties
coNtracts of all KiNds these days—sometimes Congress is experiencing, the industry

for good reasoN. aNd we could maKe the case will continue to focus its legislative
that this is oNe of those occasioNs where efforts at the state level.
If the ATA is successful in passing
there are good reasoNs.” the statute, Pitcher says pitfalls can
remain. It takes a while for a new law
—bob Pitcher, Vice PresideNt of state laws, to become known across the industry,
americaN trucKiNg associatioNs and shippers will ignore it to vary-
ing degrees. The Louisiana Chemical
Association has sued that state trying
to get its 2010 anti-indemnification law
overturned. The state won in district
Obviously, Jones said, it’s easier eight states had such laws. court, but the case is under appeal. Both
for a shipper to ensure good behavior The national association drafted a the American Trucking Associations
on the part of its employees than it is model piece of legislation that basically and the Louisiana Motor Transport
for the carrier to do it. If the goal is said the party at fault should bear a Association have filed amicus briefs in
to encourage safety, then both parties proportional responsibility for damages. court in support of the provision.
must have a reason to be safe. “The It also provided support and, in some Maverick’s Selig said he under-
whole concept is, there should be an cases, funding for state associations stands why carriers want to protect
incentive scheme, and that incentive who flexed their political muscle in their pocketbooks in a litigious society.
scheme should impel all parties to the their home capitals. He just wants fair treatment for carri-
contract to behave responsibly,” he said. According to Pitcher, the trucking ers, which is why Maverick will actively
“And if the shipper has no financial industry has enjoyed success in both lobby for the ATA’s bill in Arkansas.
incentive to behave carefully because “red states” and “blue states” because “We don’t mind being responsible for
the other guy’s going to pay for it, well, legislators of all political persuasions our negligence, but we don’t want to be
then the system breaks down.” have seen it as a case of big shippers responsible for a shipper’s negligence,”
Jones said the principle applies to unfairly treating small carriers. For he said.
other situations in the trucking indus- shippers, especially in particular indus-
try. For example, if a tow truck operator tries, defending the practice has been

32 arkansas truCking rePort | issue 5 2012