Defense Law Articles
Roberts Perryman P.C.
Since the inception of CSA, the FMCSA has included all crashes in the Crash Indicator Basic to the frustration of motor carriers who are at the mercy of a system that refused to consider fault. In short, it did not matter whether the motor carrier was at fault or the accident was non-preventable, it still showed up as a crash on the Crash Basic. Well, finally we have some relief. In our mind there are still improvements to be made, but we are making progress toward a system that recognizes that all truck accidents are not the fault of the motor carrier.
In 2015, the FMCSA conducted the ‘Federal Motor Carrier Safety Administration’s Crash Weighting Study’ which investigated how a preventability determination might be made, the process by which it could be accomplished, and the costs and benefits associated with it. Many trucking industry stakeholders submitted comments, notably the ATA. Three years ago, we participated in a debate before MCSAC arguing that some form of fault should be considered before charging a motor carrier with a crash. As a result, carriers now have an opportunity to participate in a study, the FMCSA Demonstration Project, to see how crashes deemed non-preventable affect their scores if removed.
How Will This Work?
Carriers involved in accidents from June 1 2017 ,moving forward, can submit a Request for Data Review (RDR) through the Data Q’s website. If the crash is found to be non-preventable a side-by-side score will appear on the carrier’s BASIC for their current BASIC and BASIC minus non-preventable score in the Crash Indicator. Similar to where are today, only carriers and law enforcement will be able to view these scores.
August 1, 2017 is the first date to submit RDR’s for this program although crashes can date back to June 1, 2017. The program will continue for at least two years.
Suggestions for Submissions
Unfortunately, all crashes are not eligible for submission. The FMCSA is calling for accidents to be submitted that are “obviously non-preventable”. These include the following:
1. When the CMV is struck by a motorist driving under the influence;
2. When the CMV is struck by a motorist driving in the wrong direction;
3. When the CMV is struck the rear;
4. When the CMV is struck while it is legally stopped;
5. When the CMV strikes an individual committing or attempting to commit suicide by stepping in front of the CMV;
6. When the CMV sustains disabling damage from an animal strike;
7. When the crash is the result of an infrastructure failure, falling trees, rocks, or other debris; or
8. When the CMV is struck by cargo or equipment falling from another vehicle.
As with any RDR submission to Data Q, the more documentation a carrier has to prove his case the better. Typical documentation is crash reports; police accident reports; insurance documents; pictures; videos; media reports; affidavits; or transcripts. However, any data or documents helping the carrier’s position should be submitted.
Who is Reviewing?
FMCSA has hired an outside contractor to review the information and make a preventability recommendation to FMCSA. The determination is not being filtered back to the state agencies like the standard RDR determinations. If the reviewer finds the crash to be non-preventable, as does the FMCSA, the wreck will be removed and reflected in a side-by-side comparison score alongside the Crash Basic original score.
If the motor carrier disagrees with the demonstration program reviewer’s determination, he can appeal and have the RDR re-opened if additional evidence is supplied.
This is a great opportunity to participate in a program to create a better balanced and fairly measured Crash Indicator scoring process for all motor carriers to be measured by. It is also a unique opportunity to have a side by side comparison for carriers to have showing the difference in Crash Scores for safety purposes, as well as to demonstrate to interested parties (customers, insurance underwriters, etc.) what the FMCSA found to not be a carrier’s fault by lack of prevention.
We encourage all of our clients and motor carriers to submit Data Q’s. We are interested in your success. Please let us know. If you need assistance in the process, we are here to help. If you have a crash where you are uncertain if you should file a Data Q, give us a call.
Here is the DataQ link.
If you have questions, please contact me, Ted Perryman, at firstname.lastname@example.org
Ted Perryman is the Managing Partner of Roberts Perryman P.C. and is regarded as one of Missouri’s preeminent trial lawyers. Ted is perhaps best known for his role as a leading advocate and defense attorney for the trucking industry. Ted was named The Best Lawyers in America 2017 "Lawyer of the Year" for Insurance Litigation in St. Louis, Missouri. His law firm, Roberts Perryman, has been selected by U.S. News & World Report as one of Missouri’s Best Law Firms.