In the last installment of PARCEL Counsel, we took a look at the Federal Motor Carrier Safety Administration (FMCSA) safety ratings, the Safety Measurement System (SMS), and Behavior Analysis and Safety Improvement Categories scores (BASICs). In this issue of PARCEL Counsel, we will consider a very serious consequence for shippers stemming from the SMS data --- their exposure to vicarious liability for highway accidents. 

The problem began in 2004 with an opinion of a U.S. District Court Judge in a case called Schramm v. Foster. Mr. Foster was the driver of a truck who fell asleep, ran a stop sign, and severely injured Mr. Schramm, his wife, and another couple. C.H. Robinson, the broker who had hired the trucker, was included as a defendant on the theory that it was negligent for using an unsafe trucking company.

The Judge opined that C.H. Robinson may indeed have been negligent for using the trucking company because it had a SafeStat score of 74 — even though this was one point below a score of 75 (or higher) which would have been labeled “deficient.” Under SMS, this would be the equivalent of having a BASICs score just below the threshold for receiving a yellow triangle on the FMCSA website.

Implicit in this opinion is that if the SafeStat score had been 75 or higher, the trucking company should not have been used. Under the SMS system, this would mean that a shipper, in the opinion of the Schramm judge, would be negligent if it hired a carrier who had just one yellow triangle, let alone two or three. 

In my opinion, the judge’s analysis was wrong. As discussed in the previous column, the SMS system was developed for the internal purposes of the FMCSA to have a method to prioritize carriers for inspection for possible safety problems. As stated on the FMCSA’s website at the time of the Schramm case, when the SMS is used for other purposes, it “may produce unintended results and not be suitable for certain uses.” It was not a stated intention for it to be used to eliminate a carrier from a shipper’s routing guide. 

There are two primary reasons why the SMS data are not valid criteria for selection of a carrier. First, while a detailed discussion is beyond the scope of this column, many commentators have pointed out numerous flaws in the methodology used by FMCSA which distorts the results. Second, BASICs scores are not “scores” at all. Rather, they are rankings. This means that there will always be carriers with one or more yellow triangles even if all carriers were safe in an objective sense.

Perhaps the best example of this involves FedEx Ground Package System, Inc. whose operating authority number is MC-179059. As of February 2012, FedEx Ground had a Driver Fitness BASIC score of 78.9 resulting in FedEx Ground having one yellow triangle. Does this mean that shippers should stop using FedEx Ground services? I don’t think so. If this was not such a serious issue, the very idea would be laughable. 

I think all would agree that FedEx spends considerable time, money and effort in providing its services in as safe a manner as possible. But, what if a shipper were to use a very small carrier whose name is not a household word and which had one yellow triangle. If this carrier were to have an accident in today’s legal environment, the shipper could expect to be sued. 

While there has been much discussion of this problem and SMS in general, it brings to mind a saying attributed to Mark Twain: “Everyone talks about the weather, but nobody does anything about it.” Other things being equal, it will take many years for this situation to resolve itself through the courts. And even then, the outcome is uncertain. 

The next installment of Parcel Counsel will explore a legislative solution to this problem. What I will propose is only one sentence in length and, most importantly, a solution that is mutually beneficial to both carriers and shippers.

All for now! 




Brent Wm. Primus, J.D., is the CEO of Primus Law Office, P.A. and the Senior Editor of transportlawtexts, inc. Previous columns, including those of William J. Augello, may be found in the “Content Library” on the PARCEL website (www.PARCELindustry.com). Your questions are welcome at brent@primuslawoffice.com
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