What To Look For And Where To Find It
The trucking industry is itself complex and heavily regulated by federal law, which means that commercial truck crashes are complex. Locating and holding all of the entities responsible for the crash, not just the driver, is often necessary. The best truck crash attorney knows how to investigate all the relationships between a trucker, trucking companies, brokers, and shipping companies that may hide or make themselves hard to find. This is difficult and time-consuming, but it is absolutely essential to hold all responsible parties accountable and make a truck crash victim whole.
Catastrophic Crash… BUT Minimum Insurance Limits
Large trucks, particularly fully loaded semi trucks, can cause serious injuries and death even at low speeds. When faced with a crash that caused catastrophic injuries and the large past and future medical expenses that result, many insurers will quickly attempt to tender policy limits. Federal regulations require motor carriers to carry a minimum of $750,000 in liability insurance. That is a significant amount of money and can be tempting for truck crash victims to take. But the best truck accident lawyers will advise patience – taking that payment can make it hard or impossible to hold other parties responsible… and there typically are other parties. Yet most personal injury lawyers won’t investigate the claims deep enough. So who are these other parties?
A “shipper” is fairly obvious from the load the trucker was carrying. A “broker” is a little harder to pin down. The Federal Motor Carrier Safety Administration (FMCSA) has defined a “broker” as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.”
TAKE ACTION FAST
Identifying whether a claim exists against a broker or shipper after a semi truck accident can be difficult. Their existence may not be uncovered until a lawsuit against the trucker or motor carrier. However, a thorough and early investigation by an experienced truck crash attorney can uncover them and determine if they share responsibility for the negligence of the driver.
STEP 1: Get the police report.
Look at the traffic crash report and any investigation that responding law enforcement will have completed.
Colorado’s Traffic Crash Reports have a section devoted to commercial motor vehicles (CMV). The report should include, at a minimum, the driver’s information, VINs for CMVs involved, the insurer for the CMV, and Department of Transportation (DOT) or Motor Carrier Identification Number. The FMCSA requires that motor carriers obtain a USDOT number to operate legally within the United States.
This information is often found on the side of the truck or trailer! The law requires DOT and motor carrier numbers to be displayed and visible from 50 feet away. The DOT number should allow for quick identification of the motor carrier, and if the trailer hauled was owned by the same entity.
STEP 2: Collect basic background information within days of the crash
Within days of getting the police report, start background checks for the driver and the motor carrier.
Requesting the trucker’s Colorado driving record should be automatic, as is the case in any car crash. However, such records may not provide a full picture of a CMV driver’s history, particularly if they frequently drive across the country and may have tickets and other bad conduct in multiple states.
STEP 3: Access public information on motor carriers
Information on the motor carrier is available from the Department of Transportation’s Safety and Fitness Electronic Records System (“SAFER“). SAFER is a treasure trove of public data on every motor carrier operating in the country.
A SAFER search may uncover the identity of the motor carrier, its address/addresses, minimum insurance coverage held, size (meaning the number of units and/or fleet they operate), and their operating status and history. SAFER will even have this information if the driver only operated in intrastate commerce and did not cross state lines. State law will often require intrastate companies to maintain the same federal standards.
SAFER also details the past 24 months of inspections, the carrier’s safety rating, how often a driver or CMV was placed out of service, and the out-of-service percentage compared to the national average.
This information should be collected as soon as possible; returning to SAFER and updating the information as the case progresses is essential.
SAFER also links to the DOT’s Safety Measurement System for every motor carrier. It provides a more detailed picture of the motor carrier’s fitness including its Behavior Analysis and Safety Improvement Categories (“BASIC”) score.
Five of the seven categories are available to the public, including
1) violations for unsafe driving;
2) hours of service compliance;
3) vehicle maintenance;
4) controlled substance and alcohol usage; and
5) driver fitness.
The most helpful Crash Indicator, meaning how likely the motor carrier is to be involved in a crash, and the Hazardous Materials Compliance are not publicly accessible.
The next step will be to make a request via the Freedom of Information Act (“FOIA”) for a motor carrier’s application, violation history and other information.
FOIA requests will be best utilized later on once fully engaged in the case, as having a good idea of what to look for and ask for will make response time much quicker. Using directed FOIA requests for between one and four categories of information will often see responses in three to six months as opposed to upwards of two years with a more extensive request list.
The Bill of Lading – A Who’s Who In the Flow of Interstate Commerce
Perhaps the most important piece of information to obtain early on will be the Bill of Lading (“BOL”). If the police did a thorough job of investigating the crash, they may have obtained a copy. The BOL will include names of consignor and consignee – such as a broker, shipper or intervening motor carrier. All these data points are very important to determining the potential for claims against a broker or shipper.
If the load being hauled played a role in the crash, it can help determine if the shipper has any direct liability. Shippers can be responsible for loading and securing the cargo. Similarly, they may dictate the route taken or timing of the shipment which can lead to driver fatigue or unsafe routes that place the CMV at risk, like requiring U-turns or a left- hand turn across traffic.
The “Holy Grail” of any Broker/Shipper Claim – the Transportation Agreements
Another important document is the transportation agreement or contract under which the broker or shipper conducted business. And there can be a lot of different contracts involved in any crash dealing with CMVs.
DRIVER CONTRACTS: Drivers can be employed directly by the motor carrier (in which case there may or may not be employment contracts), independent contractors under contract with the motor carrier and utilizing their own equipment or be owner/operators of the tractors working under a lease agreement with the motor carrier.
SHIPPER CONTRACTS: As discussed above, a motor carrier may have a contract directly with a particular shipping partner, without broker involvement, to regularly transport goods for the shipper. This can even include a motor carrier operating out of a shipping partner’s facility directly.
BROKER CONTRACTS: If a shipper utilized a broker to arrange the transport of their goods, there should be a contract between the broker and shipper and a contract between the broker and the motor carrier.
Generally, we look for specific terms that may be helpful establishing elements of control the shipper or broker exerted over the motor carrier – i.e. minimum driver or equipment requirements, shipping or loading requirements, insurance, invoicing procedures, or even elements requiring specific branding or delivery procedures.
The contract may also have terms as to the length of the relationship, the specific services that the broker will provide to the shipper, payment terms, as well as specific requirements for any carrier that the broker may enlist to actually transport the goods. This can include minimum safety ratings, insurance coverage, or other terms. Brokers cannot themselves be motor carriers or transport goods… or at least are not supposed to.
Importantly, brokers are also regulated by – and must be registered with – the Department of Transportation. The FMCSA grants authority to operate as a broker and any prospective broker has to file an application. Brokers have their own requirements for insurance and recordkeeping.
Brokers must be registered under with the FMCSA, maintain process agents to accept legal service, and maintain a surety bond or insurance policy of seventy-five thousand dollars ($75,000).
Brokers are also required to keep records of the transactions with motor carriers. This includes the following:
(1) The name and address of the consignor;
(2) The name, address, and registration number of the originating motor carrier;
(3) The BOL or freight bill number;
(4) The amount of compensation received by the broker for the brokerage service performed and the name of the payer;
(5) A description of any non-brokerage service performed in connection with each shipment or other activity, the amount of compensation received for the service, and the name of the payer; and
(6) The amount of any freight charges collected by the broker and the date of payment to the carrier.
Proceed Carefully and With A Clear Idea of The End Game
Whether a CMV crash will have a viable broker or shipper claim requires a significant amount of research and investigation. They will result in significant motions practice at almost every stage of litigation. Motions to dismiss, preemption arguments and coverage disputes are likely to arise before an answer is on file from any defendant.
In essence, big conglomerates, trucking corporations and their big insurance backers seek to bury lawyers in paperwork.
The best truck crash lawyer should be amply prepared for battle. The investigation needs to be done very early after intake to enable thorough evaluation of the potential of every trucking case. Do not wait until discovery is underway to uncover a missed opportunity to add a viable party or give into temptation of a quick settlement that cut off recovery.
Attorneys at the Law Offices of Peter M. Anderson have the experience and education needed to handle complex truck accident claims. Peter M. Anderson is board-certified in truck accident law by the Academy of Truck Accident Attorneys, one of only three such qualified in the state of Colorado. He can navigate the complex federal regulations applicable to truck accident claims.