Trucking Company’s Bad Safety Scores Not Proof of Irresponsibility
The U.S. Fifth Circuit recently upheld the dismissal of a personal injury lawsuit against a trucking company that contracted with another trucking company with high BASIC scores in unsafe driving, fatigued driving and maintenance.
The plaintiffs in the lawsuit were injured in a collision with a truck operated by A&Z Transportation in November 2011. The driver was transporting a load from Louisiana to Michigan. KLLM Logistics hired A&Z for this load because it could not accommodate its customer with its own vehicles. KLLM had hired A&Z in March and June 2011 without incident. Prior to hiring A&Z in March 2011, KLLM checked A&Z on Carrier 411, a transportation industry website providing information about insurance coverage and safety ratings for motor carriers. At the time, A&Z was “unrated,” meaning that the federal Department of Transportation had not yet conducted a safety audit of A&Z. KLLM also found A&Z unrated in November 2011. However, KLLM also checked Carrier411 for the BASIC scores for A&Z. In December 2010, the Federal Motor Carrier Safety Administration started its “Compliance, Safety, Accountability” program, which included the Behavior Analysis and Safety Improvement Categories (“BASIC”). BASIC scores range from zero to 100, with the higher score indicating the worst past performance. When KLLM checked A&Z’s BASIC scores in November 2011, it found three above the threshold for concern, unsafe driving, 83.9; fatigued driving, 82.1; and maintenance, 94.8. KLLM’s internal policy at the time was to accept a company with one or two high BASIC scores, and to reject a company with four or more high BASIC scores. A company with three high BASIC scores faced an internal discussion within the company.
The plaintiffs sued the driver, A&Z, KLLM, and others. The plaintiffs settled with all defendants except KLLM. They alleged that KLLM was liable under theories of joint venture, vicarious liability and negligent hiring. The district court, and the court of appeals, dispensed with the joint venture and vicarious liability claims by finding that A&Z was an independent contractor and that KLLM did not exercise control over A&Z. The court of appeals then evaluated the plaintiffs’ negligent hiring claim, which the district court had also dismissed. In Louisiana, a claim of negligent hiring of a contractor requires facts indicating that the principal had actual knowledge at the time of hiring that the contractor was irresponsible. In considering this claim, the court noted that, in March 2011 when KLLM first hired A&Z, the Carrier411 report did not provide information on interpreting the BASIC scores. However, by November 2011, KLLM obviously had concerns that multiple high BASIC scores could indicate safety problems. However, the evidence also demonstrated that KLLM did not automatically consider three high BASIC scores unsafe, but would further investigate carriers with three high BASIC scores. Further, KLLM already had two satisfactory experiences with A&Z. The court of appeals concluded that the plaintiffs did not present any evidence proving that A&Z should have known enough about BASIC scores at the time to prove that KLLM knew or should have known that three high BASIC scores were unsafe. As a result, the court of appeal upheld the dismissal of the plaintiffs claims against KLLM.
Dragna v. KLLM Transport Services, LLC, No. 15-30216 (5th Cir. 1/28/16)