Playing the SMS card could help good truckers in court

SEATTLE, Wash. — A transportation lawyer says a good safety record, as proven by the new Safety Measurement System (SMS) requirements of CSA 2010, could be useful in court to any trucking firm involved in a highway accident.

If nothing else, it could help reduce punitive damage claims, says Steve Block, head of the transportation and logistics department at the Seattle, Wash.-based law firm Betts, Patterson & Mines.

In a recent brief for ForwarderLaw.com, Block writes that "a good record under SMS should be effective toward reducing or eliminating punitive damages claims, which typically are based on egregious disregard of public safety and/or blatant violation of trucking regulations rules of the road."

He warns, however, that CSA 2010 compliance should not be considered a silver bullet in court.

"Demonstrated compliance with safety regs, and the smiling approval of the trucking industry’s governmental watchdog, probably won’t get a carrier out of a post-accident legal mess altogether," he writes. "Just because FMCSA likes you and you haven’t been charged with safety violations doesn’t mean you can’t be liable for an accident."

Under CSA 2010, carriers will be measured in seven Behavior Analysis Safety Improvement Categories, or BASICs, which include unsafe driving, fatigued driving, driver fitness, driver use of controlled substances and alcohol, vehicle maintenance; cargo loading and securement, and crash history. And, unlike the Safety Status Measurement System that BASICs replaces, all of this data will all be made public.

Be warned tough. It cuts cut both ways and the reverse could also be true, says Block. While a good SMS record could prove helpful to a motor carrier who finds himself in court, a bad one could give valuable ammunition to opposing trial lawyers who always looking to drum up new business.

"Injured plaintiffs could enjoy a tremendous advantage when suing motor carriers with bad BASICs scores in ways pertinent to an accident’s cause," he writes. "Any trucker with a bad history or a sudden drop in its scores could find itself more prone to lawsuits."

He stresses, however, that it remains to be seen whether, or to what extent, BASICs and related information generated under CSA 2010 will be admissible trial evidence.

"A good argument could – and almost certainly will – be made that FMCSA should not be allowed to heavily influence trial proceedings by criteria it applies for reasons different than allocation of tort liability."


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