Is your fleet ready for 3G sunset?

A good article by Deborah Lockridge here.

Top Recordkeeping FAQs on CMV Vehicle Inspections and Maintenance

Daren Hansen

Commercial vehicle inspections are critical to highway safety. Yet safety managers, mechanics, and drivers frequently have questions about the paperwork they need to fill out and retain. We’ll look at some of their commonly asked questions about vehicle inspections and maintenance recordkeeping.

However, before we jump into that, we need to clarify that these FAQs apply to anyone who operates a CMV as defined in section 390.5 of the Federal Motor Carrier Safety Regulations (FMCSRs). These rules apply to motor vehicles used in interstate commerce, making them subject to federal safety rules instead of vehicles operating in intrastate commerce within one state, subject to that state’s laws. States typically follow the same federal regulations, but some states have a different definition for what constitutes a CMV. If you operate in intrastate commerce, it’s essential to know your state’s requirements and how those rules differ from federal standards.

Do My Drivers Need to Carry DVIRs?

Drivers do not need to carry a copy of the last completed DVIR or even last week’s or last month’s DVIRs. They don’t even need to have blank DVIRs. In 1998, the Federal Motor Carrier Safety Administration (FMCSA) removed the drivers’ requirement to carry their last completed DVIR in the vehicle. Today, a driver not having a copy of a previous DVIR to show an officer is not in violation, even if the officer asks to see it.

Still, some carriers see the value in the vehicle inspection recordkeeping process, in particular, the use of electronic DVIRs, or eDVIRs.  They automate the collection of odometer readings to ensure timely preventive maintenance (PM), help fleet professionals stay on top of compliance gaps through notifications of overdue maintenance and out-of-service (OOS) defects, and provide an additional record of compliance with the FMCSRs in the event of a crash.

Does a Copy of the Annual Inspection Need to be in the Truck?

Drivers do not need to carry the annual long inspection form IF they have an annual inspection decal on the vehicle. But it is legal to possess the long form instead of the decal – they need one or the other, but not both.

What Records Do I Need to Keep?

You are required by law to keep accurate and thorough records, which must include:

Vehicle information

·        Make and model

·        VIN and fleet number

·        Tire size

·        Preventive maintenance schedule

12-month record of inspection, maintenance, and repairs

·     14 months for annual inspections

·     Three months for DVIRs

·     Length of ownership plus three years for engine changes

What Records are Required for the Individual Conducting Annual Inspections?

You need documentation to show that individuals conducting your annual inspections, including third parties, are qualified to do so and have at least a year of experience and/or training on annual inspections.

Are Digital or Electronic Records Legal?

Digital or electronic recordkeeping methods are allowed under section 390.32. You are required to ensure documents:

1.   Contain all the necessary elements (including signatures),

2.   Are stored for as long as required, and

3.   Are accessible for auditing.

You can scan in paper forms or use electronic systems to create documents electronically. Electronic records help you avoid problems that pop up with paper, like routing DVIRs to everyone who needs to see them, dealing with multiple plies and carbons, drivers misplacing documents or forgetting to sign them, and so on. If you haven’t gone electronic to maintain your records, consider an automated fleet management system. It saves a lot of time and ensures compliance with the FMCSRs.

Do I Need to Keep Inspection Records for Leased Vehicles?

An exception in section 390.3 is offered in the regulations removing the maintenance file requirements for vehicles that you control for less than 30 days.

Roadmap for Maximizing Returns on Your Investment in Cameras and Telematics

Dennis J. Junk

Interested in cameras and telematics for your fleet but not sure where to begin? Well, here we’re going to walk you through the whole process, at a high level, of planning and implementation. This should give you an idea what you’ll be getting into, what you can expect, and how you can make sure the project pays dividends.

This is meant as a flexible outline, so we won’t use numbered bullets to suggest a rigid ordering. But many of the individual steps follow logically from the ones before, so the order isn’t completely arbitrary.

Let’s jump in.

Identify Challenges and Set Goals

You’re probably looking into cameras and telematics systems because your fleet has an issue you need to address, like growing fuel cost or spiking insurance rates, just to name a couple of the most common ones. Following the principle that you measure what you want to improve, you can begin by listing the ways your fleet could reduce costs and increase efficiency.

Cameras provide benefits in the realms of safe driving, security, and protection from liability. Telematics provide information on the vehicle’s performance, location, fuel efficiency, and even the RPM for the wheels. So, you have options for what you’ll want to focus on with your implementation.

The important thing to remember is that these are complex technologies, and you’ll be working with them in a complex environment. Cameras and telematics aren’t the type of tool where you set it and forget it. You won’t be able to simply install them and then stand back to watch the benefits accrue. Rather, you’ll need to have a detailed plan in place with both specific goals and ways to measure progress if you want to get the most out of your investment.

Research Partners and Providers

If you’re focusing on lowering your insurance premium, the first step is to contact your insurance provider and ask which approaches to performance tracking they prefer. Does the provider offer any discounts for cameras or telematics implementation?

If not, maybe they can tell you which areas to focus on, so you can improve your safety record when it comes to the metrics that will be most likely to reduce your rates. And, if your provider has nothing to offer, it may be time to shop around for an insurer who will work with you to transform your ongoing performance tracking and continually improving safety record into a lower premium.

Whatever goal you’re aiming toward, it’s a good idea to reach out to whichever partners or providers will be impacted. There’s a good chance they’ll be able to give you some guidance in your planning and decision-making going forward.

You’ll also want to begin the process of researching providers of the camera and telematics systems themselves. The first step is to generate a list of the main players in the industry. Look for third-party reviews when possible. But the main objective for now is to get a grasp on what each vendor offers, along with a ballpark figure of what your company will pay.

(Getting a sense of costs can be tricky, because most providers want to be in the room with you before they talk numbers. This is where customer reviews will come in especially handy.)

Create a Draft Proposal

Now, it’s time to document your findings on the potential benefits and costs, along with an outline of the process from choosing a vendor to implementing the solution, and on to evaluating the results. This is the document you’ll use to educate and get buy-in from stakeholders. It will also help you and your team stay on track and maintain your focus on the key milestones along the way.

Keep in mind the purpose of this draft proposal is to give you a rough sense of where you’re going with the project. Once the process is underway, the plan is certain to change. So, don’t hesitate to make revisions as you learn more about the technology and as you acquire more input from both providers and stakeholders.

Since the plan is bound to change as your team progresses through the stages, you won’t want to devote too much time to zeroing in on the details. There’s no point risking getting stuck in the weeds when any given part of the plan is apt to change anyway.

The rule of thumb is that the nearer the step, the more detail you’ll need. The farther the step is from where you are now, the more provisional, and the less detailed your outline will be. But that doesn’t mean you should abandon the plan at any stage for lack of clarity or certainty.

For at least the next two or three steps in the process, you’ll want to include achievable tasks and realistic deadlines, so you can keep the project moving forward until you’re back on more solid ground.

Get Buy-In from Executives

You may have been assigned the task of planning a camera and telematics implementation by executives in your company. Even in this case, however, chances are these executives are still going to want to know what you’ve discovered in your research and how your plan is taking shape.

If the project came about through your own initiative, this is the time to find out how much support you can count on. Your managers are going to want to know what issues you’re hoping to address, or what opportunities you’re hoping to take advantage of. Naturally, they’re going to want to see a timeline and a cost-benefit comparison. And they’re going to want to know what the implementation is going to entail. Will it, for instance, mean downtime for a significant number of trucks in the fleet?

Go into these meetings with an open mind, as this is one of the points where your plan faces a high likelihood of revision. The keys to success are that you come away with benchmarks for reporting on progress, and that you have a good idea what the executives’ expectations are and how you’re going to fulfill them.

Assign Someone to Manage the Implementation Project

The buck must stop somewhere, or the project will languish in the typical back-and-forth that plagues large organizations. The implementation will go much more smoothly if you have a single person who’s ultimately responsible. How this manager organizes her team, if she needs to do so, can be left up to her. But this person will need to:

• Keep executives informed of progress
• Keep drivers onboard at each stage
• Establish metrics for monitoring improvement
• Evaluate providers
• Lay the groundwork for the eventual launch.

By this point, you’ve already set the goals, answering the question of what you hope to accomplish. The manager of the project will now have to answer the question of how you’ll accomplish it. There will be a lot of moving parts, so avoiding uncertainty over who’s in charge of what will be critical to success.

Involve Drivers in the Planning

Most fleets make the mistake of informing drivers about the cameras and telematics only after most of the planning has taken place and it’s time to install the technology. The problem with waiting to bring drivers into the loop is that it lends to the perception that the new tools and new practices are being handed down from on high—and if they don’t like, that’s tough.

Especially in cases where cameras are pointing at the drivers themselves, it’s crucial that you avoid giving people the impression that you’re spying on them, trying to catch them doing something wrong so you can use it against them somehow. Once this sort of adversarial mindset has taken hold, you can be sure your drivers will fight you every step of the way.

The most effective way to get drivers to take ownership of the project is to involve them as early as possible in the planning. Let them know exactly what goals you’re hoping to achieve, along with how achieving those goals will benefit everyone in the company. Then solicit their input into how to make the project a success—and insofar as possible, let them see their input being incorporated into the plan.

If your fleet is large and getting all your drivers to planning meetings is logistically infeasible, you can have them choose representatives. It will be the responsibility of these representatives to gather concerns and suggestions from some subset of your drivers and communicate them to the team in charge of planning and implementation.

Evaluate Providers

Now, it’s time to go deeper into your research of providers. At this stage, you’ll be reaching out to some of your top picks and sharing your plan with them. The biggest part of these evaluations will focus on demos they put on for you and your company’s stakeholders, so you can determine not just whether their products meet all of your specifications, but whether they do so in a way that’s intuitive.

Along with specific questions pertaining to your goals, you’ll want to ask:

• How responsive will the provider be to your fleet’s evolving requirements?
• What kind of training do they offer for drivers and technicians?
• What does the installation process entail?
• How flexible is the system they offer?
• How much downtime will be required for installation and training?
• How will the partnership evolve as new technologies or new market conditions emerge?

Run Pilot Projects

Many providers offer the option of installing their technology in a small number of vehicles so you and your team can do a trial run before making a commitment. This is important because it’s one thing to watch a demo put on by sales representatives—it’s something entirely different to get your hands on the tools yourself.

The objective isn’t simply to install the tools and see how easy they are to use. Rather, you want to test each provider’s products with reference to the goals you established for the implementation at the outset.

It’s important not to be drawn in by fancy gizmos and whizbang interfaces. Instead, you’ll want to compare offerings based on the clarity and efficiency they deliver in helping you track (and thus improve) the metrics that you’ve already identified as critical to your operations.

Create an Installation Plan

Once you’ve chosen a provider and a set of tools, the next step is to figure out how you’re going to get these tools on all your vehicles. This is another point where you can ask your drivers for input. Keep track of how much time each installation takes so you can budget downtime for all your vehicles as you progress. You may want to do installation on clusters of vehicles, taking them off the road in groups. Or you may want to create a schedule for working on them sequentially at a consistent rate.

Getting the equipment on the trucks is just part of the challenge at this point, though. You also have to make sure your drivers know how to operate it. You can take on installation and training at the same time, instructing drivers while their vehicles are sidelined. Or you can proceed in stages, which takes us to the next step.

Train Drivers and Technicians

Here is where getting your drivers involved early on will pay off. With any luck, most of them will be excited to finally get to use the new tools they’ve been discussing for weeks. There are all kinds of venues where instruction can take place: meetings for live training, webinars, online videos and tutorials, even in-cab coaching sessions.

You will most likely collaborate closely with your providers at this stage, so it’s a good idea to find out what kind of training programs and materials they offer long before the time comes. You’ll also want to prioritize establishing channels for everyone to get their questions answered as well as ongoing incentives for adherence to your newly developed (and continually evolving) protocols.

Create a Process for Ongoing Evaluation and Improvement

A successful camera and telematics installation project doesn’t end after all your vehicles are equipped and all your drivers are trained. Indeed, you won’t know if the project has been a success until you’ve had a chance to see how far your fleet is moving toward the goals you set at the beginning.

Ideally, you’ll have regular evaluations of the system at predetermined intervals into the indefinite future. But, for now, you’ll want to set a date for at least one, which will take place after sufficient time has elapsed for the fleet to have made measurable progress toward your goals.

It will still be important to include drivers (or their representatives) in these evaluations. Not only will they have key insights into how the system is working and where it’s blind spots may be, but letting them see that their input is being taken seriously is one of the most effective ways to keep them invested in the project’s success.

The big takeaway here is that throughout the process you’ll need to remember that this isn’t a camera and telematics project. It’s an insurance-reduction project. Or a safety-improvement project. Or a customer-satisfaction project. The cameras and telematics technologies are merely tools, powerful though they may be, to get you to the goals that inspired you to take on the project in the first place.

Breaking Free: The history of the owner-operator in trucking

Todd Dills

The owner-operator of yesteryear struggled to prosper amid a complex web of Teamster pressures and over-regulation. Shutdowns and other conflicts lined the highway that led to today’s climate in which the self-employed contractor is integral to the industry and able to operate with much greater independence. From fighting for enhanced freedom to haul in its early days to stressing smart business practices later, Overdrive has championed the owner-operator’s concerns.

1950s and ’60s: Fast track to a golden age

When Overdrive launched in 1961, trucking was dominated by the Teamsters union. Even in the unregulated area, where owner-operators and small fleets had hauled commodities deemed exempt from price regulation since the industry’s infancy in the 1930s, unions exerted their organizing pressure. Overdrive founder Mike Parkhurst is said to have been driven to launch the magazine in part by a personal affront chronicled in historian Shane Hamilton’s 2008 book “Trucking Country: The Road to America’s Wal-Mart Economy.”

Then owner-operator Parkhurst was at a receiver in Mansfield, Ohio, when “a Teamster organizer informed him that he would have to pay union dues to unload his produce,” Hamilton wrote. Along with the complicated regulatory structure of the Interstate Commerce Commission, the Teamsters, Parkhurst believed, “had ‘strangled the healthy growth of the free enterprise system.’”

The options for owner-operators wishing to haul regulated freight prior to the mid-1950s were limited to finding one of the relatively few regulated carriers who leased owned and operated equipment. Most operators of the time carved a niche in produce markets.

No motor carrier authority was necessary, thanks to agricultural interests securing an exemption from price and lane regulation in the first Motor Carrier Act in 1935, which directed the ICC to regulate the movement of any non-exempt freight. As a result, “a lot of your early owner-operators – especially in produce – come from farms,” said Brian Kimball of the Kimball Transportation brokerage (whose family is pictured, around 2011). “They’re hard workers. They have a knowledge of the machinery – they could repair their own equipment.”

Kimball’s father, Ed, hauled produce with his five sons in Ed Kimball & Sons Trucking. Before that he leased to different produce-trucking outfits in Florida and, by the late 1950s, typically hauled refrigerated commodities back under trip-lease arrangements. Enabled by legislation enacted in 1957, trip-leasing (running under a regulated carrier’s authority for a single trip agreement) expanded options for owner-operators. Deadhead miles were reduced as obtaining regulated backhauls became more common.

Through the 1960s and into the ’70s, in spite of the limitations to entry in the regulated market, a small-town Indiana boy could buy a truck and “make a decent living” just trip-leasing with carriers, said consultant Jay Thompson. Thompson and his brothers did just that.

After repeated scandals among Teamsters leadership under Jimmy Hoffa in the 1960s disillusioned many drivers – and more carriers began to view independent owner-operators more favorably – the average income of the self-employed driver rose above the average wage earnings of employee drivers for the first time nationally.

The exempt trucking market was “the most cutthroat business there ever was,” saidTodd Spencer, executive vice president of the Owner-Operator Independent Drivers Association. “Brokers stiffing truckers was routine.” With lax ICC regulations governing carrier leases with owner-operators, many of those who leased owner-operators prior to the late 1970s had the upper hand, he said.

The 1970s: The road to deregulation

As owner-operators increased in numbers, so did their recognition within the industry. Parkhurst in the 1960s launched a national trade group, the Independent Truckers Association, and later the Roadmasters.

Avoca, N.Y.-based owner-operator David A. Margeson, who hauled exempt potatoes, was a Roadmasters member. He recalled that the organization put the owner-operator “on Main Street. Up to that time there’d been no recognition of owner-operators.”

“For the first time in history, a simple thing such as a magazine brought owner-operators together from every aspect of trucking with common interests and common goals which could be heard and shared with other truckers from coast to coast. In the days before computers and Internet services, this was a connection unheard of.” – David A. Margeson, with his 1985 Mack Superliner

He also recalled the frustration of independents, who felt the ICC had outlived its original intent. “When it was first formed and set up regulated routes, carriers had to obtain rights so that no area of the country would be left out of the picture,” Margeson said. After trucking was well-established across the nation, “to the independent, it seemed like we didn’t need that system anymore. Areas would get taken care of without it – it seemed like a hindrance to interstate commerce to have rights to a particular area.”

Owner-operators leased to regulated haulers, too, banded together to force carriers and the Teamsters to recognize them. In the Midwest, the Fraternal Association of Steel Haulers formed to fight for the union’s consideration of the “unique economic interests” they had as owners of their “own expensive equipment,” Hamilton wrote. They launched strikes in 1967 and 1970, feeling as if they were paying dues for little representation from the union.

As union disillusionment spread, volatile fuel prices and runaway inflation provided a key mobilizing force for industry change. During the independents’ shutdown during the 1973-74 Arab oil embargo, a new owner-operator organization emerged, the Owner-Operator Independent Drivers Association. OOIDA focused on regulation of carrier leasing practices.

As more all-owner-operator carriers emerged and operator numbers surged in the 1970s, abuses of leased drivers were rampant, said Charles Myers. Myers was a district supervisor with the ICC beginning in 1976 in Harrisburg, Pa.

Myers recalled the typical owner-operator complaint in which an individual sets up an office, promises freight to “all these owner-operators who commit to running for him. He’d run them for a while and never pay them,” Myers said. “You’d have to come back and make a case for violation of the leasing rules of the time. Most of the time they’d just get an injunction and shut the guy down and try to get restitution for the owner-operators.” Penalties were small, so repeat offenders were common.

Congressional hearings in the ’70s exposed such practices, in part at the instigation of OOIDA. In 1979 the ICC adopted the Truth in Leasing regulations, adding “transparency to the relationships” between leased owner-operators and their carriers, Spencer said.

After a series of unsuccessful bills throughout the ’70s to allow owner-operators to compete in the regulated freight marketplace, conditions climaxed in the late 1970s. The leasing regs were hitting the books. Independents were shutting down in protests prompted by 1979’s fuel shock.

As Hamilton recounted it, the unstable economic environment was seized upon by Senator Ted Kennedy, then eyeing the Democratic Party’s presidential nomination. Kennedy and others pitched wholesale trucking deregulation as a solution to the problems of independent owner-operators and price inflation of consumer goods. Deregulation was achieved when President Jimmy Carter pushed through the Motor Carrier Reform and Modernization Act of 1980.

The 1980s and ’90s: An industry transformed

The new environment did not immediately translate to more pay for independents. Unrestricted as to lanes, areas of operation and freight, carriers with capital to invest in new trucks and drivers expanded quickly. As a guy with one truck, said Margeson, “we were still out of the picture, because what can we do with one truck?”

Many have characterized post-deregulation as a “race to the bottom” in terms of rates and driver pay, said Spencer. “The rising stars rejected the mold that trucking had evolved to,” largely a patchwork of regional businesses. “Everyone was going to be a national carrier,” he added. “They weren’t interested in hiring drivers who only wanted to work in regional areas with good pay.”

It’s one reason OOIDA didn’t support deregulation. “All we had to do was look at the already unregulated segment of the industry,” exempt hauling, to see where the rest of the industry would go if deregulated, Spencer said.

All the same, as competition soared throughout the ’80s, the owner-operator’s role was being established. Efficient single-truck businesses became more attractive to carriers. All-owner-operator “non-asset-based” fleets multiplied.

In the intervening years, the rise of computing and communications technology eased accounting and registration procedures. Load information became available online by the end of the century. By the early ’90s, nearly every state was a part of both the International Registration Plan and the International Fuel Tax Agreement, eliminating much paperwork. Prior to IFTA, Margeson said, “we had to send in a quarterly report for each state we ran. If we ran 32 states in a quarter, we had to make out 32 quarterly reports.”

As the industry changed, so, too, did Overdrive. When Parkhurst sold the magazine in the mid-’80s to Randall Publishing Co., the company refocused the content toward helping readers refine their business practices. 

2000s up through 2010: The ‘enforcement industry’ arises

When historians look back on the first decade of the 21st century in trucking, no doubt the fuel-price shocks and the 2008 economic meltdown will play large. But some owner-operators and leasing carriers were prepared for both, having experienced variations on those themes for years.

What might figure more largely is an “industry,” as Spencer called it, surrounding safety enforcement. Since the Motor Carrier Safety Assistance Program emerged in the early ’80s, throwing trucking enforcement money at states – “well over $300 million a year” as of 2011, he said – intrusions into owner-operators’ businesses in the name of safety have increased.

That extended to truckers’ day-to-day relationships with law enforcement. In spite of the long-held outlaw image of the independent trucker of the ’60s and ’70s, Spencer said, “at night, the best friends a cop could have were the truck drivers. The truckers would be the first people to stop and help” in an emergency.

Margeson said the relationship “went sour from about 1985. About the only thing you could get stopped for back in the day was speeding. If you got stopped for that, they might ask you for a log book. Other than that, your DOT checks – then called ICC checks – came in the fall of the year,” and again in the spring. Today, Margeson added, it’s not unusual to get checked two or three times on a short run. “They do it in the name of safety, but now it’s more of a money deal for the states.”

Safety ratings based on compliance reviews became the norm for carriers when the SafeStat program emerged with the new Federal Motor Carrier Safety Administration in 2000. The events of 9/11 increased scrutiny of all drivers, whether hauling sensitive freight or applying for a general-freight lease. SafeStat’s successor, the 2010-instituted Compliance, Safety, Accountability program, took safety rating to an unprecedented level, providing monthly updates to a carrier’s safety rankings based on inspection and crash data.

At that time, the FMCSA even planned to put individual drivers under a similar public ranking system. True independents looked to receive possible dual numerical rankings as both carrier and driver.

Challenges abounded, both regulatory and otherwise: multiple hours-of-service revisions, onboard recorder mandates, tighter health restrictions for CDL holders, increasing congestion, long wait times at shippers and receivers, fraud among fly-by-night brokerages.

Partly for some of those reasons Marion, Ind.-based owner-operator Mike Long traded his independent business model for the safety net of leasing to a carrier, he said. In 2008, he leased to Landstar.

Long echoed many operators when he said he wouldn’t trade a business he calls “his life” for anything. “My dad made money in his day,” he said. “But you can still make money today, taking everything into consideration. There’s no way I’d want to run a single-rear-axle gas-engine truck on springs, no power steering, no A/C on U.S. 40” across the country.

“Certainly trucking can be a hard life,” says Spencer, “but some of the most wonderful people in the world are attracted to this business – it attracts people who want to work hard” and succeed. For that, the owner-operator career remains a prime example of the nation’s opportunities for self-employment.

33 Reasons For Not Seeing

Marc Green

Viewers often fail to see objects, such as pedestrians and other vehicles. Such failures-to-see have great importance in safety as well as in many other domains such marketing, medicine, and sports, and elsewhere. I have discussed seeing in general and why failure-to-see is so common. Here, I provide a broad overview of the specific reasons for failures-to-see. I present these in tables that are adapted from the book Roadway Human Factors: From Science To Application (Green, 2017), which discusses them in detail. However, such categorizations inevitably begin to fray at the edges. They are didactic and an attempt at cognitively simplifying the large number of visual factors affecting seeing.

The reasons can very broadly be divided into visibility and cognitive. The first table shows 5 visibility factors. External physical factors are partial or complete sightline obstructions. Physiological factors can be optical, neural, or motor. Psychophysical factors usually boil down to those affecting contrast detection. Lastly, these five entries can readily be decomposed further. There are more than 16 subfactors in contrast alone (Green, 2017).

In many cases, however, the cause of failure-to-see is cognitive – the viewer does not consciously see an object which is theoretically highly visible. The usual culprit is attention. The failure to see is especially likely in given circumstances. There is vast a literature on attention and cognition that provides many potential explanations for failure to see in a given set of circumstances. The table below boils this literature down to a single list of 28 cognitive failure-to-see “constructs” that are again grouped into rough categories purely for didactic purposes. Further, the chart constructs require further elaboration.

The cognitive construct list is long, but the phenomena overlap considerably because they are different manifestations of our fundamental cognitive architecture and its consequences:

1) conscious awareness is limited by capacity,

2) attention is selective,

3) attention is efficient, trying to use the easiest and simplest selection criterion,

4) attention generally selects information that is most meaningful based on past experience and on expectation of the future. This overlap is why I call them “constructs” rather than variables or causes¹. The criterion for inclusion in the list is only that the authors frequently use the “construct” to explain a cognitive failure-to- see. In many cases, the construct name specifies little more than an experimental paradigm, e.g. “change blindness”.

Lastly, the constructs also represent different granularities of explanation. “Inattentional blindness” (failure-to-see central objects) and “tunnel vision” (failure to see peripheral objects) are really just descriptive terms for phenomena that are ultimately caused by more specific constructs (expectation, hypervigilance, mental workload, etc.). They can be useful as umbrella terms when merely describing the functional loss, but they are not very specific. They are symptoms of deeper causes. They are not explanations.

Endnotes

¹ The definition of “causation” is a knotty philosophical problem. In practice, however, it is often merely a “symptom” that doesn’t require an explanation. Causal reasoning normally works through a chain where symptoms have causes which then become symptoms for other causes. Here’s an example. A driver is blamed because he responded too slowly in seeing a pedestrian at night. Slow perception-response time is a symptom and low visibility is the cause. Low visibility is then the symptom, and a burned out streetlamp is the cause. The burned out streetlamp is now the symptom, and poor maintenance is the cause. Poor maintenance is the symptom… and so on. The chain stops when the symptom need not be explained. In this example, a human factors analysis doesn’t need to know what caused the streetlamp to be burned out, so the cause need not be determined. For an investigating utility company, the causal chain would continue until the poor maintenance were explained.

“DEFENSE” DOES NOT MEAN “DEFENSIVE”

Doug Marcello

A major failing in trucking “defense” is that is seen as synonymous with “defensive”.

Too often trucking companies and their insurers hunker down after the accident, waiting for the bill board attorney to make their move. Worse yet, even after receiving the letter of representation, they sit by idly waiting for the plaintiff to dictate the time and place of the action.

Because too many see “defense” as meaning “defensive”. Enough!

THE NEED FOR AGGRESSIVE DEFENSE

Passive, reactive, “defensive defense” rarely if ever works. Aggressive, proactive “defenses” often do. And they do so by flipping the script on an opponent, even one that appears to be in stronger position.

Pick your example. Israel in 1966 compared to France in 1939. How did that “impregnable” Maginot Line work out?

How many times have you yelled at the TV when your favorite football team is ahead and decides to play “prevent defense”?

One of my favorite examples is from Malcolm Gladwell’s story of Vivek Ranadive, an immigrant from Mumbai who, despite having never played basketball, coached his daughter’s team to a national championship game despite only two of the girls having ever played organized basketball before.

“They weren’t all that tall. They couldn’t shoot. They weren’t particularly adept at dribbling.”

OK? So how did they do it?

Watching his first basketball game, Ranadive was struck by the illogic that after a basketball, the scoring team retreated and defended only about 24 feet of the 94 feet long court. “He thought it was mindless.”

So he applied the principle “that his team would play a real full-court press, every game, all the time. The team ended up at the national championships.”

Gladwell’s article expands the principle of aggressive defense to Lawrence of Arabia and David v. Goliath, the original pre-pay-per-view Match of the Century that has a scientific explanation. Great Read

And in case you think the full-court press, aggressive basketball only works with youth sports, ask a Razorback fan the name of Coach Richardson’s national championship style of play. Young ones—Google it.

The point is that too often trucking companies and their insurers only defend the last 24 feet of a 94 feet long contest. They concede the early going, even the middle going, and hunker down for a final skirmish.

You need to take the fight to them. Particularly after the letter of rep. Keep reading. I’ll get to it.

PROACTIVE, AGGRESSIVE TRUCKING DEFENSE

So what can you do? Hope the advertising plaintiff attorney won’t sue? Avoid antagonizing them and maybe they’ll be kind and gentle? How’s that been working for you?

Sounds ridiculous, but it is too often the “strategy”. If you can call sitting by passively and waiting for the attack a “strategy”.

BEFORE THE ACCIDENT

I’ve written and spoken a lot about pre-accident preparation, so let me just give a recap.

The highlights:

-Have an accident response plan in place NOW;

-Train your driver

-Thoughtfully select and train whomever is going to take “the call”;

-Preselect experts and ensure their 24/7 availability;

-Know what you need to do to preserve data—ECM, telematics, video,…;

-Review your safety plan, manual, training, …and prepare as if you will have to defend it at trial;

-Identify who is going to be the “face of the company” in a suit and prepare them.

Key—if you were on the witness stand, what evidence would you want to present? Develop it now. After the accident, it’s just back-fill.

WHEN THE ACCIDENT OCCURS

Act immediately. Investigate. Document. Get statements from witnesses. Do something!

We have an advantage that none of those daytime TV attorneys have—immediacy. We know about the accident before any of them. If we are not ready and act immediately, we will have squandered our greatest of assets.

Don’t rely on your insurer. If they act immediately-great. If not, protect yourself. In a world of high insurance rates and significant risk retention levels, it’s your money.

You can’t afford to sit by idly if your insurer delays in assigning an adjuster, opening a claim,…. One of my grandmother’s saying was, “the Lord helps those that helps themselves.” Act immediately. Help yourself.

Take the slack out out of the post-accident chain. Do something.

AFTER THE ACCIDENT

This is where the “hunker down”, “defensive defense” is tragically the norm. “What can we do except wait until they sue?” Answer—A lot.

Sue them first. If you have an argument as to liability and you’ve suffered damages (PD, cargo, downtime,…), sue them first. This gives you the jump on the cable TV attorneys by being able to subpoena records and propound discovery against the claimant who, at this point, is represented by the auto insurance company attorney.

More importantly, you have the potential to anchor jurisdiction in the location of the accident rather than allowing the plaintiff to drag you into a “hell hole” on the theory that you are a trucking company and can be sued anywhere. This can save you millions and the industry as a whole hundreds of millions of dollars.

You may even be able to prevent the claimant from if you get a judgement in your favor against the claimant. This can result in res judicata or collateral estoppel–legal terms for “you had your chance and you lost. Good bye.”

Someone recently told me that they do this. “We pursue subrogation on all our cases. We often get our money without having to sue.”

They’re missing the point. You might not want to get your money right away, otherwise you could lose being in a conservative jurisdiction. Sue them. Maximize your suit per discovery and jurisdiction.

Watch the Video Tease–learn what Coach Bill Walsh said before every big game that is the best advice for your defense. But…you have to watch the Video

Push back against the Letter of Representation. Shortly after the accident you will get the standard letter of representation from the advertising attorney—“This is my client. No further communications with them. What are your policy limits?”

Too often this is sent to the insurer after which it is filed it away and waiting for the inevitable. And all that time the claimant is running up medical bills from a doctor to which they are frequently referred by their attorney.

Do something. Push back. Have your attorney send a letter and say all communications are to be to them. And do more.

Include medical and employment record releases in that letter for the claimant to sign and return. Request a list of medical providers and employers. State your need for these records to promptly investigate the claim and potential prejudice if not provided. And do more.

Request that their client submit to an immediate medical examination. Again, make clear the prejudice that you will suffer is they do not agree to do so.

What responses do I get from the plaintiff attorneys when I do this? “I’ve never had this before.” Or, more often, “What right to you have to request an exam before suit?”

My answer? “None. But I’ve documented my request. If this goes forward, you and your client will have to explain why, if you were really injured, you would not let our doctor examine them.”

Quite frankly, I don’t care if they agree to it or not. If we get the exam, great. if not, we have documented the record as to our request. Documentation to challenge that ongoing treatment and medical expenses run up before they file suit.

BOTTOM LINE

We cannot concede an inch. We cannot make it easy for those who want to eat your lunch. That is exactly what “defensive defense” does.

Learn the lesson—full court press in defense of your company.