We've been doing these Two Minute Warnings for almost 20 years, but this week I'm deviating from our normal format because I need you to hear this as a warning from a friend and trusted advisor.
Far too many shippers are playing Russian Roulette with the trucks hauling their freight! If a truck hauling your freight is involved in a serious accident, a nuclear verdict could jeopardize your company's future. I've seen what litigation can do to successful companies, and we care too much about the people we work with to sit on the sidelines and later wish we had been more forceful.
So please give me two minutes.
In the wake of the Supreme Court's Montgomery decision, every shipper and broker had better be able to prove that they exercised reasonable care in vetting and selecting the carriers and brokers they do business with.
Notice I said prove it.
What does reasonable care look like? It goes beyond having a carrier policy, information in your TMS, or checking a carrier when it was originally approved. Can your company produce documentation showing what was checked, who made the decision, whether there were red flags or exceptions, and why putting that carrier under that load was reasonable?
Now here's what I'm calling the Radical Truth. There isn't a nationwide survey telling us exactly how many shippers could meet that standard. But I've talked with several transportation attorneys, and I've served as an expert witness in litigation where a shipper's documentation and business practices were at issue. Based on what I've seen, the evidence is compelling: Outside of some very large and sophisticated shippers, far too many companies would have a serious problem demonstrating reasonable care if one of these cases landed on their doorstep.
What concerns me the most is that most shippers who hear this warning probably still won't do anything about it. They'll agree it's important and intend to look into it. Then the next fire will erupt and this will get pushed down the list.
Please don't let that be your company.
This isn't theoretical. Recently, I learned about a once-successful company devastated by a nuclear verdict involving a truck accident. A company that took years to build was sold for a fraction of what it had once been worth. One truck. One accident. One verdict. Years of enterprise value put at risk.
And with truckload capacity tightening, red lights are flashing! We've all lived the scenario where a hot load has to arrive at an important customer's dock in two days. Your contracted carriers don't have trucks and your VP of Sales is screaming, "I don't care what it takes—get me a truck." Suddenly the question changes from "Is this a carrier we should use?" to "Who has a truck?"
That's where companies can get hurt.
When I recently sat down with Norris Beren to discuss reasonable care, he made a critical point: Carrier vetting is only the first layer. The second is proving your standards were followed when the individual load moved. The third is documenting decisions, red flags, exceptions and overrides when they occurred—not trying to reconstruct them after an accident.
Could your company prove it exercised reasonable care on each and every load? Norris gave me a phrase worth remembering: "Nothing gets built after the subpoena arrives."
So let me cut to the chase. Don't put your company at unnecessary risk of a nuclear verdict. There are ways to get ahead of this. For example, Norris works with companies to develop a "Case Dismissed carrier-defense strategy" which is designed to help create the processes and documentation necessary to demonstrate reasonable care. Nobody can guarantee an accident won't happen or a case will be dismissed. But you can put your company in a much stronger position before something happens.
And don't assume "We have a TMS" or "Our broker handles that" answers the question. Data in a system isn't the same as a defensible record showing what was reviewed, what decision was made and why.
So I'm asking you this as someone who genuinely cares about you and your company's success: If a catastrophic accident happened tonight involving a truck hauling your freight, could you prove tomorrow that your company exercised reasonable care?
If your answer is anything other than an unequivocal yes, please reach out now—before an accident answers that question for you.
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