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Don’t discount the CSA settlement FMCSA reaffirms that determining carrier fitness is its job By Henry E. Seaton Q: Even after the settlement of NASTC et al. v. FMCSA, our insurer is still advising brokers and shippers to use SMS methodology in carrier selection. (See “FMCSA, trucking groups settle CSA lawsuit,” page 46.) I thought the purpose of the settlement was to end the misconception that SMS methodology established a new credentialing standard and requires shippers and brokers to second-guess the agency’s ultimate determination under current law. A: You are right about the purpose and intent of the settlement. It concerns me that industry pundits and certain publications ignore the clear language of the settlement and adhere to the old misconception that Compliance Safety Accountability SMS methodology is intended to establish a new duty of due diligence in carrier selection for use by shippers and brokers. Even the plaintiff’s bar, which stands the most to gain from advice like this, is upset, blogging in one case that, “FMCSA Caves Again to Industry – Changes Disclaimer on SMS Data.” A judicially agreed settlement is binding on the agency and is far more important in defending shippers’ and brokers’ decisions with respect to carrier selection than “off the cuff” remarks by agency officials, or advice of the type you suggest. Accepting a duty to vet carriers is deadly for brokers. At the outset, it is important to remember why the lawsuit was brought and what issues the settlement sought to address. Petitioners’ appeal was based on the anti-competitive effect of release of the data without clarification that SMS methodology was a program under development for the agency’s sole use in credentialing carriers. Petitioners argued that publication could establish no new standard of carrier selection or duty upon shippers and brokers to bar carriers from use. An examination of the clear language of the settlement confirms that those issues have been addressed squarely. Under the settlement, the agency:
In other words, the new settlement language makes it clear that it is the agency’s duty to determine safety fitness. With respect to your insurer’s advice that SMS be used, your counsel, a friend and respected transportation lawyer, says it best: “I must respectfully disagree with the advice that brokers need to investigate a carrier’s safety record. That is a very slippery slope and plays right into the hands of ambulance-chasing tort lawyers who are expert at creating ‘issues’ where none actually exist so as to perpetuate their legalized blackmail schemes. “We all know that the only legal duty brokers have is to retain duly certificated motor carriers to transport their clients’ freight. FMCSA – not the broker – is the gatekeeper as to whether a motor carrier is fit to operate, and if so, then the broker may use the carrier. Period. End of inquiry. It’s FMCSA’s job, no one else’s. Brokers do not have and never had a legal duty to drill down and second-guess or double-check on whether FMCSA is doing its job or not. “By telling brokers that they ‘should investigate a carrier’s safety record’ and that they ‘must also verify CSA data regularly because the scores change monthly,’ you are playing right into the hands of tort lawyers and reinforcing the fiction that a legal duty exists, which sets a high bar for brokers to meet. Also, as a practical matter, it is impossible for brokers to investigate the safety record of each one of thousands of small motor carriers it may use on any given day. “The ‘duty’ you describe effectively hands tort lawyers a loaded machine gun to use against our broker clients because it suggests that a court should apply a phantom standard that does not exist under longstanding principles of transportation law but only recently has become the favorite new litigation blackmailing tool of tort lawyers looking for another pocket to pick. The legal ‘duty’ or ‘standard’ does not exist, and accordingly such claims against brokers should be defended vigorously.” For additional information on the settlement, go to www.asectt.blogspot.com Article printed from Commercial Carrier Journal: http://www.ccjdigital.com info@transportationlaw.net |