Trucking attorney Jim Mahoney's law practice encompasses trucking and cargo loss litigation, claims management, compliance management, and operations consulting.
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FMCSA Safety Ratings, DataQ Criticisms, Insurance Problems and More
Safety Ratings by the FMCSA are trending negatively because of the huge increase in off-site desk reviews.
Most desk reviews, in contrast to prior years, have resulted in negative outcomes; a majority have resulted in “Conditional” ratings.
The upgrade process to go from "Conditional" back to "Satisfactory" has resulted in a 90% denial. Instead, a carrier may receive, at best, “No rating.”
You can't get there from here.
The upgrade process is now outrageously difficult:
- FMCSA “policy” states “Satisfactory ratings can only be issued upon a comprehensive investigation,” generally a “full on-site audit.”
- Sometimes a single critical HOS violation is enough to get a Conditional rating.
- The two common critical violations are “form and manner” and “false reports of duty status” – often improper use of “personal conveyance,” the most misunderstood duty status.
- Complaints to the Agency say a revision of its safety rating methodology is needed because critical HOS violations are overly reliant on e-log enforcement, a battle that carriers are bound to lose.
- Efforts to reform CSA have been non-existent.
- Who loses? Carriers lose shipper and broker clients.
- The FMCSA uses the carrier’s rankings within the CSA program to target fleets for off-site safety audits.
- The small carriers receive the largest share of targeted audits, with little time to submit a laundry list of demanded documents.
- How to avoid the audit letter? Review, review, and review your CSA scores. Review crash accountability. Reward drivers with cash for clean roadside inspections.
DataQ: red tape, deaf ears
DataQ is the principal – if not the only - method to challenge/correct DOT information collected on carriers.
- It is a flawed system. Thousands of reasonable challenges are rejected with some challenges requiring multiple submissions over months.
- Many rejections are based on “word vs. word” Does the motor carrier’s word trump the officer who wrote the violation?
- There are no viable methods of appeal.
- Insurers believe CSA scores are infallible.
- Not using right “line” to record hours of service (HOS)
- Falsifying HOS
- Driving without a CDL
- Lack of maintenance records
- Driving before pre-employment test results
- Insufficient HOS supporting documents
- Failure to inspect vehicles annually
- Absence of drug and alcohol program
- Absence of random driver testing
- Failing to keep driver records
Your key: electronic records
With off-site audits now one of the FMCSA’s primary enforcement tools, carriers must be conversant with the method of uploading compliance documentation quickly.
- Driver qualification files, drug and alcohol testing programs, Hours of Service records, and vehicle maintenance files are where the most acute and critical violations are found.
- But be prepared to also upload proof of insurance, accident register, driver handbook with progressive discipline measures; also, oddly, I’ve seen requests for profit and loss statements, tax returns, personal and real property records.
- Standing alone, your HOS records without supporting documents can bring a downgraded safety rating; then combined with other violations, carriers face an “unsatisfactory” rating, heavy Notice of Claim fines, or orders to cease operations.
Weaponizing insurance costs
It doesn’t take much to make a small carrier cease business.
- Insurance premium costs per mile increased by 47% in 10 years.
- Crash frequency is not even the main culprit.
- “Small verdicts” are now in the $400K range; with litigation pressuring insurers.
- Litigious states produced payouts 50% larger than the national average.
- Insurers have left the market or allocated capacity to less risky sectors.
- Real world impact of insurance costs causes small fleets to cut corners on safety, decrease coverage levels to $1 million, leaving companies exposed to significant crashes.
- Excess coverage availability for large fleets is declining due to high risk, social inflation.
- Improvement in carrier safety performance YOY has no effect to lower premiums; we know insurers want 3 to 5 years of loss runs.
Understanding "nuclear verdicts"
We’ve always had them. Now they have a nickname: “Reptile theory.” Around for 10+ years, it paints defendant as a menace to jurors themselves who are urged to punish violations of safety rules, even those rules that are not causally related to the crash.
- Plaintiff lawyers scare insurers to settle for 38% larger settlements than juries award, even considering counsel fees and expenses of trial.
- Looking ahead: trends in trucking insurance are expected to remain consistent; rate increases should continue: small fleets pay $0.125 per mile; very large fleets pay $0.037.
Important: retention of records
Improve your CSA scores:
- Hire carefully (easier said than done) and document with PSP.
- Train drivers, even seasoned ones; train them continually.
- Hand audit HOS records and keep 6 months from hand in.
- Maintain vehicles; keep pre- and post-trip records of repair.
- Reward drivers with cash for “clean” DVERs.
- Contest obvious violation errors; be conversant and persistent with DataQ appeals.
