Plaintiff attorneys, insurers are using FMCSA’s safety program against the trucking industry, so it’s time to fight back
CSA scores matter, especially to plaintiff’s attorneys.
They’re using the Federal Motor Carrier Safety Administration’s Compliance, Safety and Accountability (CSA) scores—ostensibly tools for improving public safety—as weapons against carriers and drivers.
“CSA scores are something near and dear to my heart, but not for the reasons you may think,” said attorney Stephen Setliff, who represents trucking companies, insurers and drivers in a variety of claims. “They’re near and dear to my heart because they become issues in litigated claims where we have a third party who’s been injured and then otherwise wants to sue us.
“Because the scores then become things my friends—the TV lawyers and billboard lawyers on the other side—are very interested in.”
That’s why Setliff says it’s high time for carriers to fight back.
The Virginia lawyer joined Christopher Haney, director of health, safety, security and environment, and human resources, at Payne Trucking, to share strategies for softening CSA blows, by contesting citations and disputing violations through FMCSA’s DataQs, in “Improving CSA Scores: Removing Carriers from Citations,” during NTTC’s 2019 Safety & Security Council Meeting.
Their first piece of advice: Pay attention to CSA.
“Understand that there is a level of accountability, and a level of responsibility, attached to them, beyond keeping the boss happy and keeping (the scores) low, because they can bite you hard,” Setliff said.
CSA subverted
Haney said he truly believes in CSA, which first was introduced nearly a decade ago in an effort to remove dangerous drivers from roadways, going as far as labeling the FMCSA program “brilliant.”
But with all the changes to CSA rules in the years since—which often aren’t fully communicated—they’ve become detrimental to business, no matter how minor the violation. Plaintiff attorneys use them against truckers in litigation, and insurers view them as justification to inflate premiums.
“Insurance companies have latched onto these CSA scores,” Haney said. “If any of you have brokerages out there, you know the metrics that have been put together by the insurance companies are almost impossible to meet.
“Most of this has to do with their not thoroughly understanding CSA—how it works and what the actual intent of it was.”
So what goes into calculating CSA scores generated by a roadside inspection?
Factors include the number of safety violations in a given inspection, the severity of violations or crashes, recency of violations, the number of vehicles a carrier operates, and number of vehicle miles traveled.
Recent changes created CSA safety event groups based on BASICs (Behavior Analysis and Safety Improvement Categories), and violations weight from 0 to 10 and adjusted based on recency. Points are multiplied by three in the first six months, and by two in the second six months.
“If we can lower our scores, then we have a better ability to be able to compete in the insurance market with our customers, when we’re bidding for new contracts, and when we get involved in litigations, so it’s important that we attack this from a very aggressive standpoint,” Haney insisted.
Ancillary impact
If a carrier’s CSA score soars too high, they will be subject to further monitoring, with varying levels of severity, including the worst intervention, an Operation Out of Service Order (OOSO), which is an official FMCSA order requiring the carrier’s fleet to cease all commercial vehicle operations.
But that’s only part of the story.
BASIC category alerts also draw more scrutiny from insurance companies, who may aggressively insist brokers don’t use a carrier with a high score, or demand exorbitant premiums to insure them. And carriers are left explaining violations, to their insurers, customers and brokers.
In addition, in many states, a broker can be sued for contracting with a “bad” carrier.
Haney said industry leaders are working with insurance companies, to make them see the impact they’re having on business, including, Haney said, many carriers shuttering because they can’t afford the premiums, but insurers aren’t changing their stance as quickly as the CSA scores are evolving.
“The (Safety Management System) changes overnight, and they don’t tell anybody how it changes, but we are held to such a high standard,” Haney said. “I agree with the high standard, and I believe in it, but the impact it’s having on us as an industry and business is getting to the point where we simply cannot operate. So it’s absolutely paramount we as an industry find a way to approach CSA scores, and manage those scores, in a way that ensures it doesn’t have such an impact.”
Contesting violations
Violations can be considered for removal or lowered severity if a carrier first creates an account and then submits an appeal through FMCSA’s DataQs system. Appeals, which come after a court appearance for a citation, include certified copies of a judicial proceeding showing the citation was adjudicated, photographic evidence, or an explanation of how the results of a roadside inspection were improperly recorded or applied.
Unfortunately, Haney said, too many carriers aren’t taking advantage of the system.
“This is a process, it takes time and you have to stay on top of it,” he said.
The process begins with staying up to date on CSA scores, and logging any challenges in DataQs as quickly as possible. Carriers often can leverage state associations, their contacts and counterparts, for assistance, and then enlist the help of their greatest assets—drivers and maintenance employees.
Haney advises obtaining statements and documentation from maintenance personnel in the event of an accident that generates an inspection, including any way the accident could have caused any violations or defects. Take pictures with date stamps, check back regularly after filing a challenge, in case more information or documentation is requested, and always be respectful, because the carrier may see the same reviewer again.
If a driver receives a citation, then goes to court, carriers must decide where they stand.
“The first rule of thumb always was to distance ourselves from the driver,” Haney said. “That doesn’t apply anymore. Now, we as a carrier have to step up and offer assistance to these drivers in some way to help their defense, because there’s a mutual benefit because CSA is tying the carrier to the driver.”
If the driver goes to court and wins, immediately take the documentation to DataQs.
Legal strategies
Haney recommends developing a strategy with drivers to fight citations. Let them know it benefits them and the company if they’re found not guilty. Decide who will represent the company and driver, find a trustworthy attorney, and determine how to pay for their services (eg driver paycheck deduction or monthly retainer), because if they beat the ticket, it’s removed from CSA scores.
“The general philosophy I embrace, any time a driver is charged with anything, is to contest it 100% of the time … because there’s a real tendency even when drivers are operating their personal vehicles, to want to avoid being in traffic court,” Setliff said. “If you’ve ever had the privilege of sitting through traffic court, it somewhere between a mix of a root canal and a proctology examination.
“(But) if there’s a citation you just pay, that essentially is a guilty plea that’s going to be admissible 100% of the time in connection with any civil action that may come as a result of any accident they’ve been involved in. So not only does it pop their CSA scores … you’ve just admitted in a civil case you did it.”
Haney insists his company’s drivers call their safety department immediately after an inspection. Safety personnel are trained on what to do—and most likely the driver isn’t thinking clearly in a roadside situation.
“Your driver is your best tool in this process, and the only way you can get their help and support is to get them highly motivated to pick up the phone and call you right then and there,” Haney said.
