The Tangled Web Of Broker Defense—An Abundance Of Material For Impeachment

In our last article, we looked at the overview of Countering the Broker’s Defense and corresponding reports and articles to supplement our argument. Now we’re going to go in depth on how to use the industry’s own words and supporting studies against them to benefit our clients injured in trucking accidents.

Not only do the UMTRI and ATRI studies actually demonstrate that the BASIC scores are a significant and important indicator of carrier safety, but there is an abundance of material with which to cross examine experts who attempt to utilize the materials the Broker industry tries to use as support.  In short, the materials they use are produced by the industry, for the industry, and can be readily impeached.



For example, one resource utilized by Brokers is a Stifel Nicolaus Conference CallWhy CSA Is Not Fit For Shippers and Brokers to Use, from January 5, 2012.  One of the two featured speakers who is often cited is Tom Sanderson.  Mr. Sanderson is an industry executive who just happens to be CEO of Transplace, a large privately owned third party logisitics company.  Not only is Mr. Sanderson a broker industry insider with a clear bias and self-interest against use of the BASIC scores, his actual transcript from the Conference Call focuses on profit over safety, and provides a wealth of juicy quotes for cross examination.

Here are some examples from the transcript (with emphasis added):

(beginning of transcript). . . “Our key message today is that shipper’s and broker’s should not be using the Safety Measurement (SMS) data (formerly known as CSA) in the selection of carriers.  There are several reasons for that statement….First, you would be needlessly exposing yourself to additional vicarious liability and negligent selection lawsuits.  It is far superior to rely on the FMCSA….(page 2)

It would cost your company money to deny it access to carriers that are approved for use by the FMCSA;  these are carriers that have insurance and that have satisfactory safety ratings—you would be fundamentally costing your company money and harming your service by not utilizing them.  (page 2)

It would be fine for the FMCSA to use the methodology to determine which carriers should be further scrutinized….(page 3)

[D]o not use SMS methodology.  The use of SMS methodology by shippers and brokers, I believe and this is purely my opinion, is a bad idea.  If a shipper or broker uses SMS methodology, it assumes a risk of non-compliance and a higher duty than the duty required by statute for the government to do.  You cannot stop introduction of SMS methodology or challenge its validity if you use it and are sued in a court.  In essence, you lose the ability to rely upon federal preemption and the government’s ultimate safety fitness determination as the gold standard.  Additionally, you lose the argument that the regulators, not the consumers, should be responsible for carrier fitness.  (page 12)

[W]e call you to action.  If you are a shipper or a broker, do not use the CSA/SMS scores to select carriers.  If you are a carrier—and some of the large carriers do this, thinking that this is a competitive advantage for them—we urge you to compete based on service and based on price, not based on safety.  (page 16)

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 Question]:  And not safety reports that they have with state troopers and other government agencies?  [Sanderson Response]:  Absolutely not.  (page 19-20)

The premise of regulation is that people are certified on a pass/fail basis so that the consumer—in this case, the consumers are the shippers and brokers—can rely upon the government’s determination.  When you vary from that and it is put in the hands of the plaintiff’s bar, you lose this open and free marketplace, which in trucking is the driving factor in the national transportation policy.  (page 20) . . . (end of transcript)

Clearly, the sole focus of Mr. Sanderson is on price and on-time delivery/pick up by carriers.  Safety score consideration is something he actively encourages brokers to avoid and he pleads with carriers to not compete in terms of safety issues.  Does it get any more damning than an industry leader actively encouraging the carriers out there on our roadways to not compete based on their safety?

        In our next installment, we will look into the Wells Fargo studies, specfically on the legitimacy of using them as “objective” expert writings for the defense when Wells Fargo and the trucking industry have such close financial ties.