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November 15, 2018 12:15 PM, EST

CVSA Files 'Friend of the Court' Brief in Chameleon Carrier Case

Chameleon Carrier The Indiana Statehouse is home to the Supreme Court of Indiana. (Shutterstock)

The Commercial Vehicle Safety Alliance has filed a “friend of the court” brief with the Indiana Supreme Court in a “chameleon carrier” case in which an insurance broker is accused of helping the carrier illegally change its name to escape its bad safety record.

CVSA Executive Director Collin Mooney said his group filed the brief to “educate” the state’s high court to understand the role insurance companies and other consultants can play in assisting risky carriers to obtain operating authority under a different business name.

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“It’s the whole chameleon, reincarnated carrier issue that we’ve been fighting for years,” Mooney told Transport Topics. “It’s just a new flavor of the roles that third parties like these brokers are playing in camouflaging and rebranding a motor carrier, obviously for self-serving reasons because they can generate insurance to keep them as a client.”

Mooney added, “It’s not that we’re after one specific entity; it’s tackling the issue itself and because it’s a Supreme Court issue that is significant because it can establish case law.”

In its rare court filing, CVSA said the problem of chameleon carriers is growing, and studies have shown that reincarnated carriers are more at risk for crashes.

“Like the chameleon that changes color but not shape, CVSA has seen that carriers that reincarnate or rebrand with the same ownership, assets and operators typically do not change their safety culture or practices,” CVSA said in its court filing.

The consultants involved — including insurance brokers — are highly specialized, CVSA said.

“They are a significant problem because some work to undermine the safety system FMCSA and the states have put in place,” CVSA wrote. “Given their knowledge of the regulatory landscape, the consequences of their actions should be entirely foreseeable to them: They know their clients have a poor safety rating, and they provide the tools to keep operating.”

Mooney

Mooney

The Indiana case involves a trucking company in which the owner knowingly drove a truck with bad brakes that struck another vehicle, killing a man, his wife and their granddaughter.

The crash occurred in February 2011, when a truck driven by C&K Transport owner William Hackney was en route from Lima, Ohio, to Mitchell, Ind., a day after his driver refused to make the trip because of the bad brakes. Less than a year before the crash, Hackney sold the assets of his former company, Hackney Trucking, to C&K Transport, claiming that the new company had no relationship to the prior company, according to court documents.

After the crash, members of the victims’ estate sued the insurance company, ONB Insurance Group Inc., doing business as Old National Insurance.

ONI argued that its role as an insurance agent is not “to determine whether their clients deserve coverage or at what price” but failed to gain a summary judgment in the lower court.

However, the Indiana Court of Appeals agreed with ONI and reversed the lower court decision.

“We hold the insurance agency and its agent, who had no role whatsoever in the decision to put the vehicle on the road in its condition, could not foresee that its actions relevant to this matter, which are only answering questions regarding whether their client had insurance coverage, would result in injury to a motorist,” the appeals court said.

CVSA said it is not arguing any position on liability in the case as it now lands at the state Supreme Court.

“But the court of appeals didn’t have their facts straight,” Mooney said.

“The insurance broker in this case advised the carrier about how to reincorporate and submitted forms to FMCSA on behalf of the carrier,” CVSA said in its court brief. “It knew that reincarnation was necessary to secure insurance given the carrier’s poor safety record. As such, it would be entirely foreseeable that a crash could occur as a result of that consultant’s assistance in circumventing the safety regulatory system.”

The CVSA brief added, “Although FMCSA has been developing systems to better identify chameleon or reincarnated motor carriers, it can be a challenge because consultants continue to find new ways to camouflage the information that is relevant.”

The primary questions the estate is asking for the state’s high court to answer include:

  • Did the court of appeals’ opinion err in finding in favor of an insurance broker that joined with a “chameleon carrier” to fraudulently secure a new identity with the Federal Motor Carrier Safety Administration?
  • Did the opinion err in holding an insurance broker, as a matter of law, cannot be held responsible for its actions in joining with a trucking company to fraudulently secure a new identity to thwart Federal Motor Carrier Safety Regulations?

CVSA 'Friend of the Court' Brief by Transport Topics on Scribd