Personal injury lawyers coached on the fine points of "broker busting"

Shippers and property brokers have grown increasingly concerned that personal injury lawyers would capitalize on the uncertainty surrounding the federal government's truck- grading initiative, known as CSA 2010, to hold them liable for catastrophic accidents involving truckers hauling their loads.

The plaintiff's bar, always on the lookout for new and lucrative revenue streams, has come to realize this. In what may be the most extensive tutorial to date, a law firm in Tennessee has prepared a 25-page primer showing plaintiffs' lawyers how to sue brokers for post-accident damages stemming from an alleged failure to vet a carrier's safety before tendering a load to its driver.

The primer, called "Broker Busting B.A.S.I.C.s," was drafted by attorneys at Keith Williams Law Group, a firm with offices in Nashville and Lebanon, Tenn. The document, which takes the form of a PowerPoint presentation, is divided into five categories: acquainting lawyers with the many acronyms of the freight world; looking beyond the broker's safety rating of the carrier to see what actual data was available prior to an accident; identifying the broker's methods of selecting and qualifying carriers; formulating a plaintiff strategy; and anticipating and countering defense attorney arguments.

The word "B.A.S.I.C.s" is an acronym for "Behavior Analysis and Safety Improvement Categories," a series of safety categories under which the federal government—through a formula of measurements created by the Federal Motor Carrier Safety Administration (FMCSA) in the CSA program—grades carrier fitness by analyzing comparative scores. FMCSA is a subagency of the Department of Transportation (DOT).

CSA, which stands for "Compliance, Safety, Accountability," is aimed at reducing the risk of commercial truck and bus accidents by identifying carriers that might be at greater risk of crashing. From 2009 to 2012, there were, on average, 125,000 crashes per year involving large trucks and buses, according to the U.S. Government Accountability Office (GAO), which recently issued a report on the effectiveness of the CSA program. Those accidents resulted in about 78,000 injuries and 4,100 deaths per year, GAO said.

The firm crafted its presentation near the end of 2013 and has included it in a series of webinars conducted for personal injury lawyers, according to a person familiar with the matter. While it is not a new practice for plaintiffs lawyers to "go up the supply chain" to pursue personal injury claims against brokers or shippers, the Williams presentation is the most detailed effort yet to craft an instructional presentation, the person said. Keith Williams, one of the attorneys in the two-man firm, did not respond to an e-mail request for comment.

On the cover page, the firm said the document's objective is to help make "our highways safer by taking 'trucking cases' beyond the driver and motor carrier to the negligent brokers who hire them." Separately, on its website, the firm said the broker industry has "attempted to push all responsibility onto the feet of others and avoid any liability when they hire unsafe carriers."

According to the firm's website, brokers are being advised by industry leaders to not consider the CSA's safety measurement formula when evaluating a carrier and should instead just rely on whether a carrier holds government authority to haul freight. The firm, however, believes that brokers should use the BASIC scores because they are developed through reliable and current data. By contrast, the safety criteria used by regulators to award operating authority become obsolete almost as soon as the permit is issued, according to the firm. Because the FMCSA has limited resources and can only re-evaluate a fraction of carriers each year, many carriers operate over long periods of time with an "extremely outdated assessment," the firm said.

The firm's position conflicts with a key finding of the GAO report, which said that flaws in the grading system's methodology itself make it difficult to reliably assess the safety risks of most carriers. The report found that most truckers lack sufficient safety data to ensure that their performance can be properly evaluated and compared to other carriers. About 95 percent of the nation's fleets operate less than 20 vehicles, and FMCSA lacks the funding to inspect such a broad spectrum frequently enough to collect even the minimum amount of data needed to generate a reliable safety grade, GAO said.

NEGLIGENT HIRING SEEN AS BETTER SHOT
Of the two types of injury claims that can be brought against brokers, the practice of "negligent hiring," where plaintiffs attorneys allege that brokers either failed to examine or ignored CSA scores before hiring a carrier, shows the most potential, the attorneys said. That's because advances in technology give brokers visibility into up-to-date carrier information, and a jury won't look favorably on a broker they believe didn't check the trucker's safety record before it was retained to move a load, they said.

The claim of "vicarious liability," which aims to show the presence of an employer-employee relationship between brokers and carriers, is more difficult to prove, the attorneys said. That's because brokers structure their contracts with detailed language showing that the carrier functions as an independent contractor and that no employment relationship exists between the parties, they said.

Shipper, trucker, and broker executives, and the attorneys representing them, contend that Congress or DOT must clarify FMCSA's responsibility as the safety steward of the nation's roads. They argue that FMCSA has abdicated its role as safety arbiter by leaving it up to shippers and brokers to interpret the CSA methodology to determine if a trucker is fit to operate. Without specific agency language stating that a carrier is fit or unfit, a broker faces enormous liability if a trucker it selects is involved in a catastrophic crash, they said. That a nonpartisan agency like the GAO concluded that the methodology is based on unreliable data only adds to brokers' angst, they said.

In the wake of a crash, plaintiffs' lawyers will generally not pursue a small trucker with relatively few assets and liability coverage that may not begin to compensate victims of a catastrophic accident, they said. Instead, they will go after deep-pocketed brokers and, in a growing number of instances, the shippers that hired them, they said.