Countering The Truck Broker’s Defense In An Accident Case

In Part 8 of our Busting Broker’s  series, we “drilled down” on Disclaimers Being the Core of the Defense of a 3rd Party Truck Broker in an accident and injury case. Now in Part 9, we are going to look at countering the broker’s defenses by understanding exactly what studies they will fall back on to try to lend credence to their claim of not being liable for the accident.

Countering The Broker Defenses

Some of the defenses noted above seem rather daunting at first. After all, the industry cites to at several different studies that say the BASIC scores are not accurate measures of safety and should not be used. So, what does a Plaintiff have to go on? Well, quite a bit, actually.

UMTRI and ATRI Studies Support Relationship Between BASIC Scores and Crash Risk

To begin with, the more independent studies out there actually support the relationship between BASIC scores and carrier’s crash risk. The most independent of the studies was conducted by the University of Michigan Transportation Research Institute. The UMTRI has a reputation for quality, independent research and analysis in the transportation industry. As the American Trucking Associations (“ATA”) noted in March 2012, “[c]onsistent with UMTRI’s reputation and tradition, the evaluation is comprehensive, well-written, and informative.”8 The UMTRI undertook an analysis of the CSA 2010 Operational Model Test. In that analysis, the UMTRI concluded that the SMS BASIC Scores are related to Carrier Safety, although they were weaker for the Driver Fitness and Cargo Loading/Securement BASIC categories.

In its analysis, the UMTRI concluded as follows: For all BASICs, crash rates were higher for carriers exceeding SMS thresholds than for carriers not exceeding thresholds. The crash rate was highest for carriers exceeding the Unsafe Driving threshold. Rates were also high for the Fatigued Driving BASIC and the Controlled Substance and Alcohol BASIC. The SMS also identified manymore carriers for intervention than did SafeStat. Scatter plots indicate that all of the BASIC measures have positive associations with crash rates, except for the Driver Fitness and Loading/Cargo Securement BASICs. Excluding the Crash Indicator, the Unsafe Driving BASIC has the strongest association with crash rates.

The support for use of the BASIC scores as a crash indicator does not end at the UMTRI study, however. In fact, an in-depth study conducted by a member of the transportation industry itself strongly supports the validity of BASIC scores. The American Transportation Research Institute (“ATRI”) put out a report in October 2012 titled Compliance, Safety, Accountability: Analyzing the Relationship of 7 SMS BASIC Scores are Not Valid Predictors of Crash Frequency, Inam Iyoob, Ph.D, at p. 4.

The ATRI analysis sought to expand on previous findings by using a more targetedstatistical analysis. The report notes the studies from Wells Fargo, Dr. Iyoob, and J. Gimpel noted above, and questions the conclusion of those authors. In fact, it specifically states that “[s]imply put, the failure to detect a relationship [in those studies] may be the result of choosing an incorrect statistical analysis….Since conclusions cannot be drawn from the simple linear regression used by the Wells Fargo, [Iyoob], and Maryland authors, there are several alternative approaches available to answer the research question.”

The ATRI study went on to find important findings that demonstrate a relationship in most situations between BASIC scores and crash rates. First, the analysis showed with high confidence that BASIC scores are positively related to crashes in the Unsafe Driving, HOS and Vehicle Maintenance BASICs. A negative relationship was found, however, for the Driver Fitness and Controlled Substances/Alcohol categories.

The ATRI study went beyond simply looking at whether a particular score number in a particular category corresponded to higher crash risk. Instead, it next looked at whether carriers with an “alert” status, i.e. a score above the “threshold,” in the category had higher crash rates. That analysis again revealed that carriers with an “Alert” showed higher crash rates than carriers who were not on alert status in four of the five publics BASIC categories: Unsafe Driving, Fatigued Driving, Vehicle Maintenance and Controlled Substance/Alcohol. Again, however, their analysis showed that an alert status for Driver Fitness corresponded to a lower crash risk thank carriers who were not on alert status.

In its final findings, the ATRI study went beyond looking at individual BASIC categories. First, the study concluded that the more BASIC scores a carrier has, even if they are not at an Alert status, the higher the risk of crash. And from that, the study further analyzed and concluded that the more “Alert” statuses a carrier has, the higher the risk of crash. In fact, the study concluded that “[t]he best indicator of crashes…is not how many BASIC scores a carrier has, but how many “Alerts” the carrier has.” Forexample, a carrier who has an “alert” status in five BASIC categories is 5.1 times the crash risk of a carrier who had some data collected for it but no resulting BASIC scores.

In Part 10 of our Busting Brokers series, we will look at The Tangled Web of Broker Defense and the Abundance of Evidence to Impeach It.