Page 33 - ATR 3 2013

Taking It to court

Top legal issues facing motor carriers

By Daniel r. Barney and revoke the registration of an “imminent above the alert threshold levels, and
andrew J. Butcher hazard” motor carrier and to reject sufficient property and liability insur-
Guest Writers “chameleon carriers,” meaning those ance coverage.
owners or managers whose companies Management should carefully track
Risk is central to all trucking com- are shut down for safety violations but the “Unsafe Driving” and “Hours of
pany owners. They live with it every reopen later under a new name or with Service (HOS) Compliance” BASICs,
day. But seldom has the degree of risk a new batch of owners. which are purportedly better predictors
and the chances you’ll wind up in court of accidents than the other BASICs.
defending your company been more cSa ScoReS CSA protocols, whether applied by bro-
daunting than now. FMCSA’s much-ballyhooed 2010 kers to carriers or by carriers to owner-
Motor carriers face an array of legal Compliance, Safety, Accountability operators, should be stringent enough
and regulatory challenges in 2013 that (CSA) Program for tracking and sanc- to achieve real safety improvements.
could increase their liability if not prop- tioning unsafe motor carriers has some More importantly, the degree of com-
erly addressed. Here are some of our serious deficiencies in data accuracy mitment to safety is now more impor-
top issues: and reliability. The FMCSA acknowledg- tant than ever to convince juries, if
es there are problems and has proposed sued, that the carrier or broker is totally
bRokeRed fReIgHT some fixes. devoted to safety, yet procedurally fair
The latest transportation legisla- However, the reality for motor car- and not so harsh as to make goals
tion, the new “MAP-21”, spells an end riers is that CSA is already fueling big impossible to meet.
to a motor carrier informally asking highway-accident lawsuits. Publicly-
another to handle freight without available safety data has helped guide baNS oN TexTINg aNd HaNd-
registering as a broker or freight for- juries to award damages against motor Held cell pHoNeS
warder. Under the terms spelled out carriers – and against property brokers FMCSA now prohibits commercial
by Congress in its latest transporta- for “negligent selection” of motor carri- motor vehicle (CMV) drivers from
tion bill, the Federal Motor Carrier ers. And these judgments are frequently using hand-held phones while driving.
Safety Administration (“FMCSA”) must going higher, into the tens of millions The 2012 regulation forbids a driver
require any company that brokers or of dollars. Also, in order to avoid being to hold a phone to talk or to initiate,
forwards freight to register with the drawn into these lawsuits, large ship- answer, or end calls unless he/she can
FMCSA and to secure a bond in the pers are writing CSA-related bench- do so by touching a single button and
amount of $75,000. The requirement marks into their contracts with carriers can access the phone in the seated driv-
takes effect October 1, 2013. and brokers in whom minimum scores ing position with seatbelt fastened.
MAP-21 also mandates that a must be met or the contract terminates. Conversely, trucking companies may
trucking company brokering freight This means you shouldn’t delay not allow a CMV driver to use a hand-
must employ somebody with at least taking whatever steps are necessary to held phone and both drivers and motor
three years of experience in brokerage keep your CSA scores above the mini- carriers face civil penalties for violat-
or with knowledge of the discipline. The mum thresholds that the FMCSA deems ing the ban. As with the 2010 FMCSA
new rules will reach into the executive to be ‘alert’ status. Otherwise, carriers “texting ban,” the handheld phone
suite, imposing a $10,000-per-violation could risk losing business. Savvy brokers ban applies whenever a CMV driver is
civil penalty on “officers, directors, and are also establishing CSA protocols to operating a commercial motor vehicle
principles,” not just companies. guide their selection of motor carriers, on a highway, including while stopped
including confirming their possession because of traffic, delays, or otherwise.
No eaSe of Re-eNTRy of operating authority, maintaining a
MAP-21 also empowers FMCSA to ‘satisfactory’ safety rating, CSA scores 

arkansas Trucking reporT | issue 3 2013 33