Attorney vs. Attorney on Crash Accountability
September 13, 2013
The debate was civil and informed but it underscored the deeply held convictions that divide trucking and safety advocacy interests over how the CSA safety enforcement system accounts for fault in crashes.
On one side: Jeffrey Burns, an attorney specializing in plaintiff suits against trucking companies involved in fatal crashes.
On the other: Ted Perryman, who specializes in defending trucking companies.
The audience was the CSA Subcommittee of the Motor Carrier Safety Advisory Committee, some 20 professionals representing carriers and independents, the enforcement community, shippers, brokers and safety advocates.
The panel met Wednesday in Alexandria, Va., to continue work on the recommendations it provides to the Federal Motor Carrier Safety Administration on CSA issues.
This issue, crash accountability, has divided trucking since the agency began to deploy CSA three years ago.
Under CSA, the agency aggregates crash data without reference to fault, based on the probability that some of the crashes will be the carrier’s fault.
This has given rise to the contention by both the agency and the safety advocacy community that past crashes are a predictor of future crash risk no matter who is at fault.
But trucking interests believe it is illogical and wrong to include non-fault crashes in a system that measures safety performance.
This is the tension that shaped the point-counterpoint discussion between the two attorneys.
Burns said his perspective is shaped by years of representing families that have lost loved ones in truck crashes.
He said CSA is the best regulatory development he’s seen at the agency, because it creates a way for carriers to compete on safety as well as price.
CSA might be improved if the crash data included a determination of fault, but Burns said the industry’s suggestion of using Police Accident Reports to do that will not work.
The key question, he maintains, is whether or not non-preventable crashes can be removed from the database. The accident reports cannot be relied upon for that information, he contends.
He cited the legal definition of “Preventable” – that the crash could have been averted by the carrier’s or driver’s action or failure to take action.
The accident reports look at the violations that preceded the crash but they don’t assess preventability, Burns said. “Police cannot gauge preventability.”
He cited a case in which a drunk driver ran into a parked truck. Clearly it was the drunk driver’s fault, yet the crash was preventable, he said. The truck was parked there because the driver had not planned his route properly.
“Even if (the accident report) is completely accurate and precise, we can’t say what could have prevented crash without full blown investigation,” he said. “No crash should be removed from a Crash BASIC on the basis of a Police Accident Report, even if the report is 100% accurate.”
(The Crash Behavior Analysis and Safety Improvement Category is one of seven data elements the agency uses to measure carrier safety performance.)
Perryman countered that while this argument can be persuasive with a jury, it does not prove that the Crash BASIC works as it should.
“When you have a compelling injury involving a carrier, attorneys look closely because insurance companies pay rewards,” he said.
If a carrier is pushing its drivers to exceed their legal hours, that fact will show up as a contributing factor in the police report and the carrier should be held accountable, he said.
CSA data should be used to identify carriers. “But if it’s used by plaintiff attorneys to make money, that’s wrong.”
Perryman, whose father drove a truck and whose son is now a truck driver, said his perspective on the debate goes to how safety plays a role in litigation.
CSA provides a wealth of safety data, but it is a work in progress and it needs to be improved, he said. “The Crash BASIC should be used in way that’s helpful. We have to know the data about the gross numbers in order to get useful information.”
The example of California, which does a good job of assessing fault in accidents, shows that it is wrong to lump all crashes together, he said.
The lawyerly altercation over terms such as preventability does not clarify the issue, he said.
“We will never agree on preventability,” he said “Jeff (Burns) is right, the police don’t make a preventability determination.”
His conclusion is that fault should not be the criterion.
“The simple solution is to use the accident reports.”
Put all of the crashes into the database, but segregate them based on whether or not the carrier was a contributing factor, he said. He said that would give a carrier a chance to explain to customers and insurers that the data is more nuanced than it appears to be.
“A truck driver should not have to live with the bad record if the crash is not his fault,” he said.
Because the police officer is making an independent determination, the driver and carrier would be held accountable based on his findings.
There will be mistakes, he said, but there is no reason to think that police will favor the trucking company.
He was saying that police do not have an inherent pro-truck bias, but safety advocates are quick to respond that in many truck-car fatal crashes the truck driver is the sole surviving witness.
Burns and Perryman did not resolve their differences, but that was not likely to happen in any event.
It is up to FMCSA to untie the tangle. It has analyzed three core questions:.
- Are police accident reports reliable enough to determine accountability?
- Will a system that includes accountability be a better predictor of future safety than one that does not?
- How should the agency manage the process, giving the public a chance to participate?
The agency is reviewing the analysis and will release its policy decision once the review is done. It will not predict how long the review will take.