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ATA seeks to change the way truck accidents are documented, so crashes omitted from motor carrier evaluations

Written by Steve Gursten Posted March 8th, 2013

The American Trucking Association (ATA) has come out on the side of protecting some of the worst trucking companies out there, instead of protecting the public.

That is both sad and regrettable.

The ATA is the largest national trade association for the trucking industry. It consists of a group of of 50 affiliated state trucking associations and trucking-related conferences and councils. Recently, the ATA has petitioned to omit crashes where the carrier is not at fault from the Federal Motor Carrier Safety Administration monitoring system called Compliance, Safety, Accountability (CSA)

I’ve been on radio talk shows with ATA public relations spokespeople before. I realize that they, and a certain part of the industry, will dismiss what I write on this blog since I am a “trial lawyer.” Even worse, I am a trial lawyer who focuses his legal practice on helping the victims of trucking accidents. But safety is not a “trial lawyer” position. And the ATA is making a serious mistake in choosing to come down on the side of the worst and most dangerous trucking companies in America today, instead of on the side of better protecting the public.

Like I said, the American Trucking Association (ATA) has called for the Federal Motor Carrier Safety Administration (FMCSA) to rethink how it counts preventable truck accidents against motor carriers in its safety records.

As it stands currently, the FMCSA’s safety CSA monitoring system holds all crashes against a commercial motor carrier, regardless of fault. The ATA wants to change this so that certain truck crashes would not count against a motor carrier’s safety rating when it is “plainly evident” that the crash was not the carrier or its driver’s fault.

That may sound somewhat innocent, at first. But these crashes are a statistically very good predictor of future crashes. And, as my own Shekoski trial last November in Michigan demonstrates, what initial investigations might show and what really happens can be very different things. In the Shekoski case, the truck driver and the police initially blamed my client, who was run over, dragged, and killed by a truck driver. This trucker had too many speeding tickets and was rushing to another job. In Shekoski, as in so many trucking crash cases where the victim is killed, seriously injured, taken away by ambulances, or too shaken up to talk to the police, the trucker’s version of the story is the version that is invariably taken down by the police as what happened. In so many of these cases, the trucker version is the only version that the police have.

But that doesn’t make this version the correct one.

This is not the ATA’s first attempt at making this change. The FMCSA has previously resisted this revision. The FMCSA has cited difficulties in determining fault as the reason for not changing its practice. The ATA’s reply of course, is that only crashes where it is “plainly evident” the carrier is not at fault should be omitted.

This is troubling.

The problem is this reform calls for a subjective inquiry without standards. Here are some important questions that need to be answered by the ATA before anything is changed:

  • What does “plainly evident” mean?
  • Does that mean where the carrier and its employee have zero fault in the crash whatsoever?
  • What if the carrier is partly at fault?
  • What about a scenario where the trucking company or driver were not mainly at fault, but had the trucker or company taken some action before the crash (such as drug testing an unfit driver, or enforcing hours of service rules, or keeping a big rig with defective brakes off the road), the crash would have never happened?

The problem with the ATA proposal is that it talks about this “plainly evident” measure but does not provide any suggestions about how to protect the public. It ignores the statistical correlations about past and future likelihood of truck crashes. It makes no effort to figure out when it is plainly evident the crash should be omitted.

The ATA does provide three examples, but the examples are incomplete fact sets where the reader is left to speculate about circumstances surrounding the crash. Furthermore, the three examples are not all that helpful because the root of the proposal’s problem still exists: there is no working definition of “plainly evident.”

Our attorneys believe the FMCSA should maintain its current system. Admittedly, some crashes where the carrier is not at fault will detrimentally affect its safety rating. For example, the ATA cites one crash where a tanker was rear ended by a stolen vehicle being pursued by law enforcement. Is the carrier at fault for that crash? No. However, if this crash is exempted, it starts the FMCSA down a slippery, dangerous slope.

Where would the line be drawn?

There is a far greater interest in promoting safe highways and documenting all crashes against carriers than there is in subjectively reviewing crashes and looking for reasons to not document them in the FMCSA safety records.

The ATA’s proposal is a bad idea.

About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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