ELECTRONIC on-board recorders (EOBRs) and the Compliance, Safety, Accountability (CSA) program certainly will be used in litigation and likely will impact insurance availability and cost. These programs also mean more government oversight and more potential for costly fines.
These were several of the points made by Attorney Robert T Franklin during the National Tank Truck Carriers (NTTC) 63rd Annual Conference May 22-24 in Bal-timore, Maryland.
Even though EOBRs have not yet been mandated for the entire trucking industry by the federal government, plaintiff attorneys already are using EOBR data when it is available, according to Franklin. Plaintiff attorneys also see CSA as a new tool for lawsuits.
The on-board systems can provide objective evidence, such as vehicle speed, driving times, and hard braking events. CSA data includes roadside inspection reports for carriers and drivers.
Franklin cautioned that even when there is no specific evidence of wrongdoing by the driver or fleet, plaintiff attorneys could try to use data from either source to suggest a pattern of bad behavior.
“Plaintiff attorneys could use the data to draw attention away from the facts of an accident when the facts don't support the claims of their client,” he said. “They want to paint the company or the driver as the bad guy. They might use the data to support punitive damage claims that could expose a defendant to unlimited damages.
“If you know your driver is at fault, it is sometimes better to admit liability. That can limit the scope of the lawsuit, and it eliminates a lot of this evidence from consideration. It reduces the issue to just the amount of injury.”
Franklin cautioned carriers that they must protect all of the data from EOBRs and other sources following an event that could lead to litigation. “You have a duty to protect that information.”
Lawsuits aren't the only legal costs connected to CSA and EOBRs. Both programs are almost certain to bring increased fines from enforcement agencies. “CSA, in particular, will be a revenue enhancer for the federal government,” he said.
CSA scores could impact the ability of a fleet to obtain liability insurance. “Your insurance company also may refuse to cover certain of your drivers,” Franklin said.
He cautioned fleet executives on shipper and broker contracts that contain CSA-related language. “You don't want to sign contracts that would hold your company in breach or default based on CSA scores,” he said. “You need to argue that you follow best practices that are ‘good enough for DOT.’”
Franklin went on to say that despite the litigation risks and potential for increased fines, he believes EOBRs and CSA are good for the industry. “Drivers are more likely to do a better job with hours-of-service logs and vehicle inspections if the company is watching over their shoulders,” he said. “Drivers will have to take more responsibility for their own actions. These programs will help trucking companies do a better job of driver management, and they will help weed out bad actors before litigation exposure.”
By improving the accuracy of driver logs, EOBRs should help fleets improve CSA scores and avoid fines. In addition, it is very difficult, if not impossible, for drivers to falsify electronic logs. ♦
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