Q: We are a small unrated carrier with a high driver out-of-service SEA score as a result of involvement in several accidents that were not our fault. Now a broker that we depended upon heavily will not use us because our score exceeds 75. What are we to do?
A: There are methods of appealing false or misleading SafeStat scores and data. (See https://dataqs.fmcsa.dot.gov/.) However, removing bad data can be time-consuming and unproductive, because the Federal Motor Carrier Safety Administration must rely upon state authorities that often are not particularly cooperative. But your question begs a larger issue: Should brokers and carriers be forced to rely upon corruptible FMCSA safety data when choosing a carrier? The argument has long been made that SafeStat data is not fit for public consumption and should be used only by FMCSA as a method of determining what carriers should be audited.
Although the safety regulations place a nondelegable duty upon the carrier to conduct safe operations regardless of whether company-owned or owner-operator equipment is used, plaintiff’s bar has used state law concepts since deregulation to hold brokers liable for the acts or omissions of carriers they hire. Under traditional federal transportation law, a broker or a shipper should be allowed to rely upon FMCSA and the comprehensive state and federal safety regulations when choosing a motor carrier. Brokers should not be required to second-guess federal and state authorities when determining whether an otherwise properly licensed and insured carrier is authorized as safe to operate.
Yet, a spate of bad cases has forced brokers to consider imposing stricter standards than the law requires. Because of the “law of large numbers,” the SafeStat system penalizes small carriers with random bad sampling, and unless a carrier’s record is so bad it gets audited, a small carrier remains “unrated,” which many laymen fail to properly equate to a “satisfactory rating.” Unfortunately, unless the courts recognize the preemptive effect of the ultimate FMCSA determination of fitness on the issue of vicarious liability, I predict the situation only will get worse in the future.
Under the upcoming CSA 2010 program, safety evaluation by FMCSA will not result in ultimate simple categories of satisfactory or unsatisfactory, conditional and unrated. Without the right to an audit, a carrier can become “marginal” based upon the numbers, however flawed, and may be subjected to interim intervention. Carriers will be profiled based upon not only their own scores; every driver they hire also will be scored. All of this information, including evidence of any enforcement action or fine, however innocuous, will be available for all parties to see.
The resulting conundrum is clear. How can a shipper or broker make effective use of 600,000 licensed and authorized carriers if they cannot rely simply on FMCSA’s ultimate fitness determination and instead must drill down on a daily basis to the driving record details to determine fitness? In the name of safety, the industry generally has been supportive of greater transparency in obtaining driver records, new carrier audits and other FMCSA initiatives that will result in stricter enforcement and intervention. It is time for shippers, brokers and carriers alike to insist that the federal safety regime is all-encompassing and can be relied upon without second-guessing.
— Henry Seaton is a transportation lawyer who represents carriers.