Part 7 of Keith Williams’ Busting Truck Brokers Series – Anticipating Their Defenses
So you’ve formulated your “Rules of the Road” that will help put you in the drivers seat as far as establishing the foundation of your client’s case and forcing the other party to agree to very important basic truths and facts inherent in your case. Once that’s finished, you’re on to anticipating their defense. I’m going to take these one at a time because it’s here, no matter how well you’ve done every part of your preparation up to now, where your case is in the most danger. If you fail to anticipate the trucking company and freight broker companies defenses, you’re leaving your case sitting with a hole big enough to drive a tractor trailer through it. The broker industry started preparing their coordinated defense long before your client’s accident ever happened. Being prepared for those defenses, however, is the key to defeating them.
Common Broker Defenses
As you might expect, the Broker Industry makes big money by taking the Ostrich Approach to safety and focusing its attention instead on on-time performance and pricing issues. As a result, they are fighting changes to that model tooth and nail, including Plaintiffs who try to hold them responsible for their negligent business practices. They have therefore attempted to craft a number of defenses to use against negligent hiring claims. Included among those potential defenses, a Plaintiff may very well see the following:
Safety Rating One of the first statements likely to come out of Pimp Daddy Broker’s mouth is “I checked the carrier’s safety rating from the FMCSA, and it was satisfactory. Therefore, the carrier was deemed safe by the Federal Government to be on our roads and I was not negligent in hiring that carrier for the load.” The big brokers in particular love to simply pass the buck to the federal government and say “that’s enough for me.” For example, Tom Sanderson, the CEO of Transplace, a large 3PL company, and board member of industry association ASECTT, said the following in a question and answer session regarding use of the BASIC scores at a December 20, 2011 industry conference call (with emphasis added):
Listener #1: Okay. I understand there are some flaws in the way they provide this information. I do not know if they will every [sic] come up with the perfect solution, but in absence of that, if it is one of the several ways to evaluate the quality of a carrier, do you still have the same negative views about the value of this?
Tom Sanderson: Yes. We think the FMCSA should uphold it’s obligation to determine which carriers are fit for service and that we ought to select carriers based on their on-time pick-up and delivery performance, the quality of their equipment, and the prices that they offer. That is where the marketplace should be competitive.
Listener #1: And not safety reports that they have with state troopers and other government agencies?
The brokers raising this argument also typically try to argue that a carrier’s safety rating is the result of a full compliance review conducted by the government, whereas the BASIC scores are not, and that frequency and focus of roadside inspections that underlie the BASIC scores varies region to region. They therefore contend that the safety rating is the only reliable rating because it is based on a full scale review of the carrier. As discussed more fully in the following section, that argument simply doesn’t hold water, particularly in instances where there has been an extended time period since the carrier’s prior compliance review. In many cases, carriers go years without a compliance review. We will continue looking at anticipated defenses in Article 8 of our series: Disclaimer on Basic Scores.