After the Supreme Court's shocking ruling against mega-broker C.H. Robinson allowing victims of truck crashes to go after brokers in state court for negligent carrier selection, some industry media voices came out downright apocalyptic.
An "extinction event" for small brokers and carriers, perhaps?
One of the more extreme views on the topic didn't come from a media figure at all.
The Transportation Intermediaries Association's President Chris Burroughs expressed disappointment with the ruling, saying it set an "impossible" standard.
The Supreme Court "decision imposes an impossible task on brokers — effectively asking them to evaluate the safety of a given motor carrier despite having been deemed safe to operate on public roads by the federal government," Burroughs said in a statement.
But is that true? Is it really impossible for brokers to "evaluate the safety of a given motor carrier?" Haven't brokers just gone through three-four years of convulsions on "carrier vetting" and onboarding paying untold millions for software that helps them do exactly that?
[Related: Owner-operators allege Highway 'overstepping' with carrier onboarding process]
Wouldn't C.H. Robinson's stock go to 0 if it was impossible to do their jobs? (It's up about 10% since the May 14 decision.)
Aren't there a bunch of commonsense ways to evaluate carrier safety/risk, both online and off?
Does anyone really think that when brokers meet with their shipper customers, they tell them, "It is impossible for us to evaluate carrier safety if they are authorized by the Federal Motor Carrier Safety Administration"?
"Full cop-out," said Jamie Hagen, former Small Fleet Champ finalist and mainstream media's new trucking guru, responding to Burroughs' comment.
C.H. Robinson itself didn't even go so far as Burroughs. Company Chief Legal Officer Dorothy Capers said, "While we are disappointed in the Court’s decision, we will continue to operate responsibly, support stronger federal enforcement, and work constructively with regulators, carriers, and customers to strengthen the national safety system and support safe, reliable transportation across the country."
A new release from the mega broker says it invests "extensively in risk mitigation in the areas of fraud and safety."
So business as usual at C.H. Robinson, it seems.
[Related: C.H. Robinson, Super Ego chalk up 'chameleon carrier' outrage to a big misunderstanding]
Owner-operator Brian Woodring also found TIA's position ridiculous and easily disproven with some simple math or by just closing the laptop for a few minutes.
"Any moron in this industry should know what it cost to run a truck," said Woodring. "If you are paying your drivers 65 cents per mile, around the national average, and now with diesel fuel at around 75 cents per mile, that's $1.40/mile.
"If you’re putting a load out on the board at $1.50/mile, what do you think is wrong with that carrier that takes the load? They're not maintaining trucks, not following rules, and not hiring the best drivers."
A Class 8 truck with a 53-foot trailer isn't exactly Bigfoot. If brokers wanted to, they could actually see one.
Woodring denounced brokers sitting in offices, sometimes overseas, not taking an interest in equipment while obscuring the relationship between shippers and carriers.
"Brokers sitting out in California, or even India, they don't know anything about your equipment," he said. "We've lost that connection in this industry. Brokers have taken that away. In between shippers and carriers, there's a middleman with secrecy on either side."
Woodring, headquartered in Indiana, said any shipper can "come outside take a look at my truck. Where's the fraud there? They can see the equipment, see it's well-maintained. I can take them out to dinner."
Still, many owner-ops also blame FMCSA for leaving 94% of carriers without a safety rating.
"Hard to truly know the shape of equipment from an office across the country when the FMCSA doesn’t have the capacity to inspect regularly," said one.
"The enforcement needs to be fully done by the government if they’re setting the basic requirements," said owner-op Ilya Denisenko.
Keith Brown, VP of Operations at GMH Trans, LLC, a 57-truck fleet out of Vermont, imagined applying Burroughs' logic to hiring drivers.
"I guess the best analogy I can come up with would be when a carrier is hiring drivers -- yes, they may hold a valid CDL, but we then review their driving record in order to make an informed decision on whether or not to hire said driver," Brown said. "In many cases we pass based on their driving history, even though they legally hold a valid CDL."
Jason Putney, owner of small fleet Downeast Shipping, said it's "so easy" to vet carriers' safety records.
"I used to look at random carriers' CSA scores all the time and evaluate them in comparison to my own and check to see which violations were the most common. Anyone can do that. You don't need any tech platform, but with all the tech they're talking about these days there must be" a lot more info than that.
Indeed there is.
MC Advantage, a service from Overdrive's parent company Fusable, is hosting a webinar on that exact topic June 16.
From the session description: "Learn how industry leaders are using MC Brokerage to establish carrier standards, assess BASICs and ISS scores, and continuously monitor safety exposures tied to the motor carriers moving their freight."
Alex Panfilov, founder and CEO of Verified Carrier, an established carrier and broker vetting firm, said brokers definitely have the tools to evaluate carrier safety. He sells one, in fact.
"Brokers and shippers have access to more safety data than ever before," said Panfilov. "The key is turning that data into a consistent, defensible carrier selection process with proper compliance validation and audit-ready reporting.”
So what exactly was Burroughs talking about with that "impossible task?"
Reached for comment, the TIA president elaborated.
"The impossible task is trying to vet carriers to a standard that does not exist until a jury makes the determination," said Burroughs. "Almost 94% of motor carriers are unrated, and some motor carriers, especially the small ones, have very little data on them. How would a broker know that one of those motor carriers is unsafe until the motor carrier is involved in a crash?"
Burroughs gave examples of a carrier with a relatively normal safety record that got into a deadly crash, and then one with an egregious laundry list of violations that's nonetheless rated "Satisfactory" by FMCSA's compliance review system.
Luckily for brokers, the Supreme Court itself made clear this ruling shouldn't set brokers up for an impossible task.
"Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents," Justices Brett Kavanaugh and Samuel Alito wrote in their concurring opinion.
Furthermore, legal decisions are rolling in already supporting business as usual for brokers, rather than the visions of apocalypse conjured up at TIA.
Transportation Attorney Tyler Biddle posted on LinkedIn about a decision regarding freight broker liability out of Federal Court in Wisconsin just two days ago that saw a crash victim unable to sue a broker because they didn't demonstrate the broker had been negligent.
Owner-ops and carriers Overdrive spoke to all support more carrier safety ratings from FMCSA. That might just be unanimous across brokers and carriers.
As Justice Brett Kavanaugh said in the oral arguments before the Montgomery v. Caribe Transport II decision, “brokers could do more” to ensure safer highways.
Not posting bottom-of-the-barrel rates, not looking for "strong solo" drivers and ELD cheats, and maybe actually working with carriers as partners, real people with real equipment, could help.
[Related: Oregon DOT puts 283 ELD cheats out-of-service]
Burroughs concluded his thoughts by telling Overdrive that now "you are likely going to see an overcorrection on carrier vetting that is going to potentially eliminate a large pool of carriers with limited data."
Isn't that exactly what happened in the "fraud apocalypse" TIA's former president described? Large shares of veteran carriers with few inspections, ELD-exempt engines or some other arbitrary knock were disqualified from hauling for brokers while chameleon carriers continued to run thousands of loads for C.H. Robinson and others.
[Related: C.H. Robinson gave thousands of loads to double-brokering chameleon carrier: Court docs]
As for increased carrier vetting, now that capacity has tightened and rates are up, small fleet owner Hagen said bring it on.
"I'm fully expecting brokers to ... demand more information from us," he said. "If it yields safer roads then so be it."
