Coming soon to a legislative theater near you: Bob Voltmann vs. the Plaintiffs' Bar.
Voltmann, who runs the Transportation Intermediaries Association (TIA), wants to get trial lawyers off the backs of shippers, property brokers and motor carriers. In his group's view, the best and perhaps only way to accomplish this is to convince Congress to enact national standards for hiring truckers to move contractual and spot market freight.
Voltmann reasons that federal legislation would provide everyone with clear guidelines for what constitutes a safe motor carrier. The presence of an overarching federal standard would also dilute the plaintiffs' bar's strategy of suing brokers in state court over their roles in selecting carriers involved in accidents while hauling their freight, Voltmann said. Trial lawyers have succeeded in recent years in winning state court judgments against brokers by persuading juries that the carrier or driver was either in the broker's employ at the time of the accident or that the broker was negligent in vetting the carrier's safety record.
The legislation, which is set to be introduced by month's end by Rep. John J. Duncan Jr. (R-Tenn.), would deem a motor carrier to be safe to operate if it is properly licensed, has adequate insurance, and has a better than "unsatisfactory" rating from the Federal Motor Carrier Safety Administration (FMCSA), a subagency of the Department of Transportation that oversees the safety of the nation's trucks and buses. Shippers and brokers would have 35 days to determine a carrier's fitness prior to selection; that time frame was chosen in part because FMCSA updates its ratings and information every 30 days and truck users should have the most current information available, Voltmann said.
TIA ultimately wants to embed the language in the next version of surface transport re-authorization legislation that Congress has now begun to address. The current law expires Sept. 30, and lawmakers will be racing through the spring and summer to meet an Aug. 29 deadline, when it is expected the Highway Trust Fund, the mechanism to fund infrastructure projects, will run out of money.
The current carrier selection process is governed by state or local standards, which Voltmann said is a patchwork quilt that forces brokers and shippers to play "liability roulette" with their businesses. "If you are sitting in California or Minnesota, and you are hiring a motor carrier in Ohio to move a load from Texas to New Jersey, what liability regime applies?" Voltmann told the NASSTRAC annual meeting Wednesday in Orlando. "Well, if you tell me where the accident is going to occur, I'll tell you how to qualify your carrier."
Voltmann told the group that such a scenario "is just plain stupid. It's not interstate commerce."
FMCSA bases its carrier safety ratings on a highly controversial program known as Compliance, Safety, and Accountability (CSA). Critics have said that a carrier's safety scorecard is based on inaccurate and incomplete data, and that trial lawyers have misused CSA's intent in state court by arguing shippers and brokers failed to adhere to CSA scores before selecting a carrier involved an accident.
Voltmann and others contend that CSA is a tool only for FMCSA to gauge a carrier's safety fitness, and that shippers and brokers are not in the business of determining which carriers are safe to operate and which are not.
FMCSA is expected to publish a notice of proposed rulemaking in late May or early June to modify CSA by expanding the data sets used to produce an overall safety rating for a carrier. Currently, the agency uses on-site compliance reviews to develop an overall safety rating. It is proposing to use data from roadside inspections, crashes, investigations, and violation history to produce what it calls a "safety fitness determination" for a carrier.
Voltmann said that the bill should have a Democratic co-sponsor upon its introduction, and that companion legislation will be introduced in the Senate soon after.
TIA has scheduled a Washington "fly-in" June 17 and 18 when members will descend on Capitol Hill to discuss this and other issues with their elected representatives and their staffs. Voltmann told the group at NASSTRAC that shippers and brokers should gird for a tough battle as they confront well-connected and well-financed plaintiffs' lawyers who have exploited a new channel of revenue and show no signs of backing off.
"Anytime you go up against the trial bar, it's a heavy lift," he said.