May 14, 2012 5:00 AM, EDT

Industry Seeks Relief from FMCSA Policy in Crashes When Truckers Are Not at Fault

By Michele Fuetsch, Staff Reporter

This story appears in the May 14 print edition of Transport Topics. Click here to subscribe today.

Royce Brooks, an experienced tank truck driver, was hauling gasoline to Lockhart, Texas, south of Austin, when a BMW driver blew through a stop sign and a flashing red light.

The car hit the tanker truck with such force that Texas State Police said the rig went into a ditch, spun around, flipped and burst into flames, killing Brooks, 41.

The driver of the BMW in the March 28 crash has been charged with criminally negligent homicide.

Nevertheless, under the federal Compliance, Safety, Accountability program, the crash will be posted on the public CSA website as a fatal accident for the carrier, Johnson Oil Co. of Gonzales, Texas, also known as Cinco J Inc.

Missing from the posting will be anything that says the carrier and Brooks were blameless, a stark example of a situation that has the trucking industry crying foul.

“It is very unfair,” said Michael Burke, Johnson’s transportation manager. “That poor guy didn’t know what hit him,” Burke said of Brooks, whom he hired last year.

When the Federal Motor Carrier Safety Administration unveiled the CSA crash website in 2010, the agency promised to add a feature that would tell viewers whether or not a crash was the carrier’s fault.

While some crashes are the fault of a carrier or its driver, others clearly are not, and the trucking industry wants FMCSA to state on the website when a crash was unavoidable for the trucker.

As late as December, FMCSA was still saying it would add such a crash accountability system, but in March, Administrator Anne Ferro pulled back, saying the agency needed to rethink its plan.

“For all we know, this . . . could last months, could last years, and that’s part of the frustration and part of the noise level that’s going on in the industry,” said David Osiecki, vice president of policy and regulatory affairs for American Trucking Associations.

“And let’s guess who the first person is who’s going to look at this,” said attorney Kurt Rozelsky, who represents trucking firms. “Oh, a plaintiff’s lawyer. Gee, that’s a shock.”

And because the crash information is put on the Web by a federal agency, viewers will assume the information is reliable, said Rozelsky, of Smith Moore Leatherwood in Greenville, S.C.

In addition to attorneys, insurance companies, news media, competitors and shippers are looking at the crash postings, said John Conley, president of the National Tank Truck Carriers.

“The carrier has absolutely no defense, other than trying to explain if the shipper or somebody calls,” Conley said.

The postings are painful when crashes are demonstrably not their fault, carriers said.

“It just bothers you so much,” said Jeff Armstrong, president of Specialized Rail Service Inc., a Utah intermodal carrier with a fatal and injury crash posted on the website without explanation that the truck driver was blameless.

“This poor driver, my guy, he’s the nicest guy in the world and he gets hit with this,” said Armstrong.

That crash occurred in January on Interstate 84 in Idaho when a woman fell asleep at the wheel of a car that crossed the median, flipped and flew into the rig, killing the auto driver and injuring her husband and two children.

“As it was midair, flipping, [the car] struck the side of the trailer, so it didn’t even hit the tractor,” Idaho State Police Lt. Kevin Haight told Transport Topics.

“There’s absolutely nothing that truck driver could have done,” Haight said. “Crashes like that should not go on a trucking company’s record.”

To make matters more painful for Armstrong and his driver, the website posting on the crash says a citation was issued. Haight said the posting is incorrect and that police did not issue a citation.

FMCSA told Transport Topics that the error will be corrected, but as of May 9, that correction had not been made.

Armstrong can only wonder whether shippers, seeing the fatal-injury accident on the website with no explanation as to who was at fault, are taking their business elsewhere.

“You never know,” he said. “They could just say, ‘Well, we better not use these guys,’ and we would never know.”

Some fatal crashes have received widespread news coverage showing the carriers involved were not at fault. Still, the crash website will list only “fatal” or “injury” or both under the carriers’ names.

A case in point is a Jan. 14 crash, also on I-84 in Idaho, in which an 18-year-old college student died. State Police said she was driving 80 miles an hour when she slammed into a slow-moving tanker truck hauling a load of molasses up a steep grade.

“It was at night . . . the truck had its flashers on, and that’s a straight, clear roadway,” State Police Lt. Sheldon Kelley told TT. “And she ran right into the back of the truck, so she’s distracted by something.”

Police checked her phone re-cords and found the young woman had been texting. Her stricken parents went on national television

to decry texting while driving and, in tearful testimony, they persuaded Idaho lawmakers to ban the practice.

The same agricultural carrier involved in that crash was hit again the following month — this time by a 28-year-old woman cited for “inattentive or careless” driving for ignoring a stop sign.

The Feb. 26 crash is on the CSA website as an injury incident for the hauler but, again, without assessing blame.

“They need to fix that because we clearly said who was to blame,” said the Idaho police lieutenant, Haight. “She’s identified as at fault by us when she’s cited.”

In an April 1 crash that reaped considerable publicity in southern Louisiana, a teenage boy drove through a stop sign into an 18-wheel flatbed truck, killing himself and his female passenger.

Louisiana State Police said that they are waiting for a toxicology report on the teen driver but, regardless of the finding, two fatals will be posted on the website for the carrier.

The same rules also dictated that two fatals be posted on the website for a large national freight company whose truck was hit head-on in Tennessee in February by an SUV whose now-dead driver was going the wrong way on a divided highway.

The Tennessee Highway Patrol report said the truck was propelled across the median and hit a second truck traveling in the opposite direction. The driver of the second truck was killed.

That means the dead truck driver’s employer also will have a fatal crash posted on the website, said ATA’s Osiecki.

Even a suicide — witnessed last year by Mississippi State Police troopers — is posted on the CSA website as a fatal crash for a Louisiana carrier.

That crash occurred when troopers were arresting three people for being under the influence and for having drugs in their car, and one of the three said he wanted to die and ran onto Interstate 55 into the path of a truck.

“The truck driver absolutely did everything he could to avoid the guy,” Cpl. Joey Miller of the Mississippi Highway Patrol said. “The truck driver felt horrible.”

The trucking industry is arguing that in crashes where carriers are incontrovertibly not at fault, CSA should be able to determine blame quickly and post that on the website without a complicated investigative process.

“These are clear-cut, and they can be dealt with in the short term,” Osiecki said.

Ferro and FMCSA, however, were persuaded to put the crash accountability plan on hold by interest groups that press for greater restrictions and reporting requirements for the trucking industry.

Henry Jasny, vice president and general counsel for one group, Advocates for Highway and Auto Safety, told TT that he challenged FMCSA’s crash accountability plan because it was flawed in two ways.

Under the plan, only carriers and drivers, not others involved in the crash, would have been able to initiate a challenge to FMCSA’s fault determination, Jasny said. And he also took issue with FMCSA’s reliance only on police accident reports.

“You have to rely on other [evidence] in addition to the police accident report, and you may have to allow the other side to weigh in, as well,” Jasny said.

FMCSA said in a statement about the crash website that to ensure the “sharpest possible picture” of commercial truck and bus companies that pose risk on the roads, the agency is “committed to maintaining the fairest and most consistent process possible for evaluating the over 100,000 truck and bus crashes that occur each year.”

To reach that goal, the statement said, “FMCSA is . . . studying several critical issues, including the uniformity and consistency of police accident records; the process for making final crash determinations; and the best ways of soliciting public input.”