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Jun 1, 2010 12:00 PM, By Rick Weber

Dealing with the impact of CSA 2010 will require careful hiring, adherence to a good data retention program

Keeping records continued...
“What you have to keep in mind when making the decision on whether to sign up for PSP is that you're trying to hit a moving target. You have to be thinking about what a jury or judge would find regarding what a ‘reasonably prudent trucking company would do,’ ” Hand said. “It'd be nice to know exactly what you're supposed to do, because you would do it. What's challenging is that in each individual case, this target moves. Often times following the regulations is not necessarily enough.”

Stallings vs Werner Enterprises (2009) found that even if Werner's investigation and hiring did not violate the FMCSA regulations, a jury could find that Werner breached its common-law duty to use reasonable care in hiring the driver. Hand said regulations generally help determine the minimum standard of care, but juries can require more. A trucking company has a common-law duty to protect the public by inquiring into the competence and qualifications of those considered for employment. The standard is “knew or should have known the driver was accident prone.”

“Plaintiffs almost always add this claim in personal injury suits,” he said. “Failure to enroll in PSP could impact the ‘should-have-known’ standard if you chose not to enroll.”

Evidence of violations

In Burke vs TransAm Trucking (2009), the claim for punitive damages was thrown out because the plaintiff did not have evidence of specific violations beyond FMCSA downgrading the carrier from a “satisfactory” to “conditional” rating. It was held that violations of the regulations are not, alone, a sufficient basis for punitive damages. There must be some nexus between the violations and the cause of the accident showing reckless indifference to the rights and welfare of others, Hand said.

He said prior court decisions on SafeStat shed light on how CSA 2010 might be used in future litigation.

In Shram vs Foster (2004), a case against a broker for negligent hiring of a motor carrier, the court held that the duty of the broker was to use reasonable care in hiring carriers, including at least: checking the SafeStat database; and maintaining records on the carriers used to assure the carriers are not manipulating their business practices to avoid unsatisfactory SafeStat ratings. Hand said CSA 2010 data could be used in a similar fashion regarding the hiring of drivers and motor carriers.

In Doyle vs Watts Trucking (2007), where there was an accident involving allegations of “sleep deprivation” against the truck driver and vehicle maintenance against the carrier, the court allowed into evidence various safety reports from the FMCSA, including SafeStat data showing that the carrier regularly violated HOS rules and violated the regulations on brakes and tire tread depth. The defendant objected on relevance grounds, but the court allowed the evidence. CSA 2010 data will contain similar information.

Jones vs CH Robinson (2008) involved a plaintiff injured in a trucking accident by a carrier hired by a broker, CH Robinson. The carrier had a “conditional” safety rating and was hired by CH Robinson, with the contract requiring that the carrier maintain a “satisfactory” safety rating. The court held there was enough evidence for the jury to decide whether Robinson breached its duty to select a competent carrier. Hand said carriers with “marginal” ratings can expect the same.

“If you don't get the PSP/DIR reports, the plaintiff probably will,” he said. “Like medical records, criminal records, and traffic records, plaintiffs can use the subpoena power of courts to obtain the DIR report. Pre-suit, plaintiffs will likely use the Freedom of Information Act. I have not seen anything to the contrary. Plaintiffs will get this information, despite the FMCSA's statement that it is not available to the public and solely for pre-employment screening.

“From a litigation standpoint, it's difficult to tell a jury why you did not enroll when carriers always say, ‘Safety first”; for $10, you see the full report (the plaintiffs' standard argument is profits over safety). The government says the system will help employers make more informed decisions when hiring commercial drivers. There is much more detailed information than MVRs and DAC reports; and the raw data is designed to “examine the safety performance” of drivers.

“If you choose not to enroll in PSP, be prepared to explain to a jury why,” he said.

Hand also addressed today's electronic data storm that can contain make-or-break evidence in the forms of e-mails, on-board computer data, electronic control module data, electronic logs, computer maintenance and driver files, and cell phone records (calls, text messages, and photos).

“Avoid a spoliation charge and preserve data that proves your case,” he said. “Once litigation is anticipated, anything relevant to the litigation should be preserved. The rules require a party to act affirmatively in preventing destruction or alteration of potentially relevant information.

To satisfy this duty, you should suspend the normal business practice of purging records if litigation is reasonably anticipated. Develop and follow record retention policies, along with retention policies in the event of an accident.

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