Since the inception of CSA, all crashes have counted against carriers. Even the most obvious of non-preventable accidents went on your record.
After years of machinations, the FMCSA has proposed a plan to take a limited type of non-fault accidents off of carrier records.
Sounds like a good thing, right? Not so when you review the details of the proposal.
The proposed crash preventability determination process is unfair, unrealistic, and unnecessary. It creates a flawed approach that will produce inconsistent results that creates a flawed system a with false facade of legitimacy. In the end, that would be even worse than what we have.
The proposal provides that the FMCSA would accept requests for data reviews (RDRs) that seek to show that certain crashes were non-preventable by the motor carrier or the driver. That is laudable in theory.
However, in reality most obvious and unquestionable non-preventable crashes would only be removed from the carrier’s record if the CMV was “struck by a motorist convicted by of the four traffic offenses.” The “convicted” requirement presumes that if a truck can be hit by a drunk driver, someone going the wrong way on an interstate, in the rear, or even when the truck is legally stopped a conviction of the offending motorist would automatically follow.This is a fatal fallacy that strips the proposal of fairness.
First, many states have first offender programs that are not considered a “conviction”. Pennsylvania, for example, has an ARD program that does not constitute a “conviction” for DUI. Second, there will be no charges filed, and thus no conviction, if the striking motorist dies. There is obviously no one to charge. Fatality, rather than factuality, would be determinative of whether the crash is non-preventable.
Third, non-preventability could be precluded by police benevolence. I recently defended a CMV driver who was stopped making a construction site delivery when he was struck by an elderly lady driving an elderly friend. The police did not charge the elderly driver despite noting her clear violation on the police report.
Fourth, the crash record would be vulnerable to negotiated pleas. The frequent occurrence of conviction to a lesser offense would keep the crash on the motor carrier’s record.
The requirement that the other motorist be “convicted” is unfair. It imposes an unnecessary requirement that would result in inconsistent outcomes determined by whether the outcome is considered a conviction, whether the other operator lives, whether the police exercise discretionary benevolence to the other operator, or whether the conviction is to a lesser offense.
The resultant inconsistency for two identical accidents is contrary to the spirit of and undermines the credibility of CSA as a data based measurement system of which it is an element. The unfairness would then be compounded by presenting crash scores with an illusion of fairness when in reality they skewed by the variables created by the requirement that the striking motorist be “convicted.”
This gives a false sense of fairness to the flawed procedure. It would result in variance in crash data based not on the facts of the accident, but whether the other motorist was “convicted”, or even charged. I can envision the potential misuse of this information in the context of the civil lawsuits against trucking companies which I defend on a daily basis.
A plaintiff’s attorney could disingenuously argue that the crash record reflects the true crash rate because there is a process for removing the non-preventable ones. That motor carrier’s score would be inaccurate based upon a factor beyond its control.
The requirement of a conviction is unfair. It skews the score, interjects an unnecessary variable, and undermines the validity of the data upon which the system is based.
It is unrealistic to require submission of the breadth of documents required by the proposal. It requires that, “[i]n addition to documentation of the conviction, these RDRs should include all available law enforcement reports, insurance reports from all parties involved in the crash, and any other relevant information.”Even a judicial conviction is not enough under the proposal. It further mandates not only submission of law enforcement reports, but “insurance reports from all parties involved in the crash”.
This is unrealistic. The trucking company’s ability to obtain the “insurance reports from [the other motorist] involved in the crash” is folly. The notion that this could be easily obtained on a voluntary basis from an adverse insurer is a wholly impractical, unrealistic concept.
The mandated machinations are unnecessary. There is an easy, consistent way to achieve a fair and consistent result without a conviction and unnecessary and unrealistic documentation requirements.
Why not have the accident classified by the same police and roadside inspectors upon whom the FMCSA relies upon for roadside inspections and accident documentation? Why can’t the FMCSA trust those same people to click a box that says, “CMV struck by:___driver going the wrong direction__while legally stopped.”
If the FMCSA can rely upon their findings for assessment of CSA points, why can’t it do so for objective facts of an accident that would result in its removal from the crash score? The reporting officers would not have to find fault or assign blame. It would be a yes/no answer to an objective determination.
Surely they can answer “was the truck legally stationary at the time it was struck?” It’s no different than a charging call by a basketball official.
A simple “yes/no” on a limited number of crashes based upon the objective facts of the accident is an easy call. It is not skewed by the vagaries of a “conviction” or burdened by unobtainable documentation.
Further, it makes it easier for the reviewers. FMCSA has cited the manpower required to review the voluminous documentation generated by accidents as the reason it has struggled with addressing the recognized wrong of esponsibility for non-preventable accidents.
Why not remove all extraneous documentation—proof of conviction, police reports, insurance forms—in favor of an objective classification of the accident? Why not strip the subjectivity from a burdensome system that would further strain manpower?
If these same professionals can be relied upon to generate the data that drives the system, why can’t FMCSA accept their objective submissions as to the nature of the accident? Again, they would not be asked to find fault or assess blame.
They would merely be identifying accidents that fit a defined set of factual scenarios consistent with non-preventability—struck by a drunk driver, struck by a driver going the wrong way, struck in the rear, and/or struck while legally parked? Click the box—yes/no.
The result would be a system that is fair and realistic.
I appreciate the FMCSA’s effort to strip the system of the current unfairness. The limited accident scenarios proposed provide a start for identifying circumstances that are unquestionably not the fault of the CMV, the number of which can be expanded.
However, the proposed mechanism would produce inconsistent results for identical accidents based upon circumstances and documents beyond the motor carrier’s control. It will give the misimpression that companies crash scores are comparable, which they would not be. It overburdens manpower to review convictions and documents when the same result can be achieved by a “yes/no” classification by those same individuals upon whose data the CSA system relies.