A recent $23.8 million dollar judgment against C. H. Robinson Worldwide is getting a lot of attention in the trucking industry. Many are seeing this huge award as a warning to the whole trucking industry. This case is based upon who controls the shipment and I believe the shipper is in ultimate control of the shipment.
Shippers are becoming more selective with whom they trust their freight, due to their additional liability if they ship strictly by the cheapest carrier. Shippers must now incorporate the safety history of the carrier into their decision on whom to hire to haul their freight. Shippers are starting to make those decisions based upon a carriers CSA safety score provided by the federal government.
It is operationally critical for carriers to monitor and control their CSA Basic scores. The carrier must evaluate every inspection to see if the chance exists to reduce or eliminate the points issued by the enforcement officer during the inspections. Often outcomes can be improved just by ensuring correct coding and points for various citations, especially generic speeding, logbooks, med certs, and identical-citation “stacking.” Other times DataQ challenges require calls and appeals before the officer will change the original violation.
The frustrating thing about DataQ challenges is the inconsistency in the results of a challenge. A simple example is two drivers in the same jurisdiction stopped by two different enforcement officers and charges with the same thing, such as no med-card in their possession. Both drivers challenged the violation because they had current med-cards in their wallet in the cab, but not “on their person” when asked by the officer. Officer A agrees to remove the violation because the driver was able to prove he had a current med-card. Officer B refuses to remove the violation because the driver did not have it “on his person”, but would have had to get his wallet from the cab to show the officer. Drivers have the same violation, same jurisdiction and often even same troop for the enforcement officers, but different outcomes and different effects on the driver and the carrier.
I recommend that every driver and every carrier challenge every violation they receive. CSA and the DataQ challenges are changing and evolving every day as the states implement their programs. The statute of limitations also varies by state with some such as Pennsylvania only allowing 12 months from the date of the violation to do a DataQ challenge. The appeal process can be different for each state; some allow an appeal to the enforcement officer’s immediate superior, some allow an appeal to the top state enforcement officer and yet others allow an appeal to a committee who will make the final judgment.
The problem with all the current challenges and appeals is they fail to offer Due Process to the carrier or driver. Sure you get to make an appeal, but to the same organization that wrote the violation and benefits from the violation. The Due Process would allow for a challenge or appeal to a disinterested third party such as an Administrative Law Judge, a county or district judge.
Failure to have the disinterested third party means you are asking the person who said you violated the law if he was “mistaken” when he wrote the violation (good luck there) or his boss who under any management protocol should back up their employees against an outside party. Failure to support his officer would show the manager failed to properly train/supervise the officer or enforce the policies of the organization. Admitting mistakes is not something most people enjoy, especially when it has a direct impact upon keeping their job.
Since the shipper is now watching the carrier closer, the carrier must now watch their drivers closer. That means the carrier will by necessity have to spend more time and money in educating the driver as the CSA rules change. It will not be long before the driver has their own CSA scores on the web for viewing. In order to best protect the driver and the carrier and vicariously the shipper, trucking must find a way to efficiently monitor their equipment to prevent bad inspections; educate and monitor their drivers to obey the laws and CSA regulations; bring the shipper into the loop so the shipper understands how their holding drivers at the docks causes problems for everyone.
A prediction: Shippers will shortly become the biggest “deep pocket” for plaintiff lawyers when any accident occurs. I say this because the shipper has the ultimate say in who hauls their freight and if they should choose a carrier with a less than perfect CSA score, the shipper becomes liable for their decision.
Imagine you are the shipper sitting in the witness chair; you have been sworn to tell the truth; the plaintiff attorney asks you, “Mr. Shipper, you chose to ship your product with XYZ Carrier when ABC Carrier was available. XYZ caused the accident with personal injury and property damage. We have shown you accessed the CSA score of both XYZ and ABC within 5 minutes of each other by the time date stamp on your computer and on the CSA scores pages of the carriers, plus XYZ and ABC had trucks available at the time you needed them, but XYZ was 2% cheaper to ship. XYZ had a CSA score of 60 and ABC had a better score of 30 when you checked but you chose a carrier with a safety record two times worse than ABC carrier.
The question that should be asked of the Shippers is "Was the 2% cheaper freight worth the lives of my clients to you, is that why you chose the more dangerous carrier?”