Tom Bray
Due to litigation over the past several years, many shippers and brokers are modifying how they do business. Like insurance companies, they are becoming concerned with the risks posed by potentially unsafe motor carriers.
This trend means they are now avoiding carriers with questionable safety records. So how do you prevent this from happening to your operation? First, understand shipper concerns and risk. Then, work towards being seen as a safe carrier.
What is Happening?
Under Tort Law, the plaintiff needs to prove:
- There was a duty to act,
- The defendant did not live up to the duty (they were negligent and failed to do what a reasonable person would have done),
- There was a real injury or loss, and
- The failure to act is what led to the injury or loss.
Liability can be assigned to anyone involved in the loss through various principles, including vicarious liability under the theory of respondeat superior (a superior, such as an employer or hiring entity, is responsible for the actions of the subordinate) and joint and several liability (the parties involved are inseparable when it comes to the injury).
Person vs. Broker (Miller vs. Robinson)
In this landmark case, a court determined that a broker was liable for hiring an unsafe carrier. The unsafe carrier was involved in a crash, resulting in severe injuries.
During the proceedings, the broker claimed they verified the carrier was licensed and properly credentialed by the Federal Motor Carrier Safety Administration (FMCSA), meaning they had followed their duty to act.
They also claimed they were exempt from the claim due to the Federal Aviation Administration Authorization Act of 1994, as the practice of allowing state courts to decide such cases runs afoul of the preemption of state laws related to a price, route, or service of carriers and brokers. Both arguments were unsuccessful from the local court to the supreme court.
As a result of this case (and others since), many brokers and shippers are becoming more selective in the carriers they use.
Solution
As risk-averse shippers and brokers trend toward using FMCSA-provided data to make decisions, this is where the answer lies.
To avoid being painted as a potentially unsafe carrier, you need to:
- Take steps to avoid roadside inspection violations:
o Ensure your drivers obey the safety regulations, especially the hours-of-service regulations.
o Track your drivers’ qualifications and performance.
o Have an effective vehicle maintenance program.
o Review your roadside inspections for accuracy.
- Take steps to avoid crashes:
o Create realistic delivery schedules. Using vehicle tracking devices can help you give your customers accurate delivery estimates.
o Adjust operations to poor conditions.
o Have safe and well-trained drivers (including doing specific defensive driving training).
o Track your drivers’ performance and skills using dash cameras.
o Allow only safe vehicles on the roadway.
- Track your data and performance in the FMCSA data systems.
- Challenge any roadside inspection and crash data that needs to be corrected.
Remember, you want to be viewed as a safe carrier by all shippers and brokers. If you are not, you may suddenly find it harder to find and keep customers.
