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Nashville, Tennessee, United States
You can reach me at ben@gtu-ins.com. Comments are welcome.

Thursday

Compliance, Safety, and Accountability Changes and The Carriers- Is It All Fair?

CSA continues to confound all stakeholders involved in the supply chain. There appears to be a change a month. The truth is CSA is unfair. While this is a purely conjectural statement, it should be noted that CSA is attempting to raise the bar on truck road safety- and that is a good thing. The challenge is that its strategy to raise the bar is to establish a better measurement system for looking at roadside inspection data and driver experiences. The reason why it is unfair is that so many truckers are "not rated" and so it penalizes those truckers who are rated- who might be actually worse than those that are not rated. Until ALL carriers are rated we will never know. The other challenge is that the only way a carrier can clean up his score is to get a clean inspection- so they have to try and get inspected when nothing is wrong. Does not seem to make sense, does it? And to add insult to injury, they keep changing things. I have to look at that as good since the system needs improvement. What people need to stop doing is saying that it is irrelevant and any carrier that is approved to operate by DOT is viewed as safe. I can tell you plaintiff's lawyers, trial courts, and the insurance industry- other ancillary stakeholders in the supply chain do not view it that way at all. An insurance underwriter, rightly or wrongly, has established their own benchmarks that they feel their defense attorneys can successfully defend. So keep your eye on CSA, and look at who is doing what. So what changed this time? Our friends at the Central Analysis Bureau said there were the following changes to CSA this past month. They are:
1) The Cargo-Related BASIC is now aligned with the Hazardous Materials (HM) Compliance BASIC.
2) The Vehicle Maintenance BASIC has been strengthened by including cargo and load securement violations that were previously in the Cargo-Related BASIC.
3) CSA now counts intermodal equipment violations found during drivers’ pre-trip inspections.
4) CSA is now trying to align speeding violations to be consistent with current speedometer regulations that require speedometers to be accurate within 5 mph.
5) The Fatigued Driving BASIC is no more. The name has been changed to the Hours-of-Service (HOS) Compliance BASIC to more accurately reflect violations contained within the BASIC.
6) CSA is now aligning the severity weight of paper and electronic logbook violations equally on the SMS for consistency purposes. The change applies to the prior 24 months of data used by the SMS and all SMS data moving forward. Keep your eyes open for CSA changes so you can help your clients. We will be looking at for changes as well. Some folks say change is good. Let's hope so.

2012 Big Claim Against a Truck Broker Involving Double Brokered Loads

Showing you the extended tail of transportation claims, a jury awarded $5.1 million against Heyl Logistics on a 1998 claim- a transportation broker and the driver Daniel Clarey. There are a number of things that make this case auspicious and several takeaways.

1) Double Brokered- Heyl brokered the load to Washington Trucking who brokered it to Daniel Clarey- who unbelievably lacked insurance and operating authority. Additionally, Clarey was cited with reckless driving and a DUI.

Takeaway- Look for underwriters of truck broker insurance to require contract language in the broker carrier contract that affirms that they do not allow the carrier to double or rebroker a load. Also look for them to decline immediately any risk that does so.

2) Punitive Damages- The court was sending a clear message of no tolerance and as such assigned $1.68 million directly against Heyl. ( The good news for Heyl is that they later settled for less)

Takeaway- Look for more caution when buying surplus lines casualty coverages that exclude punitive damages- it is clear that brokers have the exposure.

3) Coverage Tail- We have seen a Lloyds policy and other policies that only allow a claim to be turned in within 24 months of the date of loss. Coverage would have been precluded.

Takeaway- watch for carriers that have a claims-made feature.

Look for the marketplace to get more cautious....

Truck Brokers and Truck Broker Insurance 101

I continue to get calls from good folks that simply do not understand what truck brokers are and what insurance they need. While I have addressed this in a more simplistic basis in the past, I thought it made sense to revisit the world of truck brokers. So here you go:

According to industry sources, there are over 16,000  truck brokers. A truck broker is in essence a freight intermediary- linking the shipper to the carrier. Unlike a trucker, they own no assets involved in the transit of freight. What most people do not realize is how many different parties can be involved in the overall transportation of freight- otherwise known as the supply chain.

To illustrate how convoluted the supply chain can get with regard to freight in the supply chain, let's look at an example. Transit of freight could have an ocean liner dropping a container to a third party logistics operation (3PL)-who has it transported by rail to a yard- whereupon a freight forwarder takes it on- and finds another broker -who has the carrier relationships- who in turn finds the trucker to get the freight to its final destination.

Where insurance kicks in is relative to understanding the liability during transit. The legal liability that is assumed arises from the bill of lading or tariff along with the contractual liability and legal precedents of tort liability. Today, the insurance on truck brokers is a fledgling work in progress. Many folks confuse a truck broker with a freight forwarder (a freight forwarder is licensed as a motor carrier while a truck broker is not). There are many more truck brokers going into business today than freight forwarders and 3PLs due to the more economical nature of operating as truck broker with just a phone and software- and not assuming a greater legal liability that freight forwarders and 3PLs have and do assume. From a casualty perspective the auto is construed to have the largest exposure while the GL is mostly construed to be a premises exposure- if that. I have never seen a GL loss on a truck broker and candidly have only seen 1 loss for GL for a trucker in my over 25 years in the business. The reason for this is that an auto liability policy ( the motor carrier form) covers the ownership, maintenance and use so it picks up most exposures. Other casualty losses involve professional liability which covers financial loss due to errors and omissions- a growing product.

The cargo insurance demand is probably the second most important insurance and is written on a contingent cargo basis. What is especially odd about this is that statutorially the truck broker has, as an intermediary, no insurable interest in the cargo. However, does that mean the truck broker is not legally responsible for cargo loss anyway? The answer is no in that they sign agreements with shippers that require insurance, require full indemnification, and require waiver of subrogation. While the casualty insurance previously mentioned offers the biggest source of balance sheet protection, the most important insurance to a truck broker is contingent cargo- as the truck broker needs to protect his end client- the shipper. Without that protection, usually a truck broker is unable to obtain freight from that shipper.


Truck brokers come in many shapes and sizes and it is important to understand what they are from bottom to top. Currently truck brokers exist on two bases- one as a standalone operation autonomous to any other transportation operation and secondly as an adjunct to a trucker’s operation. (There are also freight forwarders and 3PLs that have brokerage operations but I do not wish to address that here.) With the recession just over and truck utilization at an all-time high, a trucker would rather be in control of a shipper by having a brokerage operation to assist when all their power units are dedicated and already out on the road.

With respect to insurance, the truck broker operating autonomously is a fairly easy operation to underwrite. A truck broker operating in conjunction with a trucker can have separate authority or have authority in conjunction with a trucker’s existing common and/or contract carrier status. Most truck liability writers have disdain for operations with brokerage authority as they view it as providing coverage for trip leasing.

From an insurance buyer perspective, truck brokers also come in various shape and sizes. To get their authority from the Federal Motor Carrier Safety Administration, truck brokers have to provide a bond of $75,000. This is a pretty easy process but it means a truck broker has to pay to play. From there we see five types of insurance prospects:



• New Truck Broker Operations- no sophistication- only buying insurance for what the shipper requires. Seldom have a broker carrier agreement. Usually only buy contingent cargo although more and more are being required to have contingent auto, contingent cargo, and general liability

• Small truck brokerage operation in conjunction with a trucker- minimal revenue- only buying contingent cargo as well but like new operations are being requested to have coverage for the contingent auto, the contingent cargo and the GL.

• New Operations having experience and sophistication- employing best practices- want all coverages and expect high growth- have both an existing shipper and carrier network- work with industry standard broker carrier agreements.

• Seasoned Operations but no carrier agreement and no best practices- these are “country “ operations that do not have broker carrier agreements or industry best practices but have operated well within their environment. They are irritated as their shipping customers have been demanding insurance and end up buying contingent auto, contingent cargo, and general liability.

• Seasoned operations having experience and sophistication –employing best practices- want all coverages and best coverage and expect growth- employ great broker carrier contracts



The broker carrier contract is a fairly big deal when underwriting truck brokers and a constant work in progress. When we underwrite the contingent cargo, we look for essentially 3 things in the broker carrier contract: indemnification, insurance limits mandated, and that the carrier is responsible for all losses. From a broker liability context, there is a need to have the broker carrier contract coincide with operational best practices and insurance underwriting requirements. Additionally, in any case where the broker can remove liability by requiring the carrier to name the broker as an additional insurable, our desire for writing coverage increases (note most trucking insurance companies do not want to name brokers as additional insureds but we see that changing.)


From an insurance distribution perspective, most insurance agents and MGA’s have no clue about truck brokers and the insurances needed. While some trucking agents are getting better and better, they do not write enough of it to show any proficiency. GTU is able to show proficiency with a daily understanding of the business and how it is evolving.



Insurance Coverage written on truck brokers from greater to lesser are as follows:

• Surety (previously discussed)

• Contingent Cargo

• Contingent Auto or Broker Liability- the fastest growing demand is for this product

• General Liability- no one provides contractual and that is what they are looking for

• E & O- greater interest is in this product- a really necessary product

• Property- primarily limited contents

• XS- more and more are asking for higher limits

Note there is vast interest in Cargo Identity Theft which we provide on a sublimit basis to some of the contingent cargo policies we write.

I hope this helps you have a better comfort of what truck brokers are, what insurance they need, and information that help you be more relevant/provide a value added to your client- the truck broker.

Frequently Asked Questions

Revenue - the rating basis for most contingent cargo and truck broker liability policies is revenue.

Q- What revenue do they actually use to determine the revenue? Is it the gross or the net?
A- Like trucking, it is always on a gross basis.

Q- Why should the bill of lading never be in the name of the broker?
A- The insured asserts himself as an independent contractor and merely a facilitator of freight that assumes no legal liability. Since the bill of lading sets forth the legal liability during transit, it is very hard for a broker to maintain that they were an independent contractor, and thereby absolved from any liability when they are listed as the carrier for hire on the bill of lading. Then there is the representation issue. The FMCSA says the carrier shall issue the bill of lading. That does not mean might, ought to, or that the shipper should put the broker’s name on the bill of lading because he does not know who the carriers name is. Check out federal carrier compliance regulation 49 U.S.C. §80101. If the insured represents himself as the carrier for hire, you can bet it will be very hard to defend in a court of law.

Q- Why is double brokering a load bad?
A- Double Brokering lends itself to a lack of control in the supply chain. Part of our underwriting process is that we base our premiums and risk acceptability on an insured’s operations and carrier selection. When cargo is double brokered, neither we nor the broker have any idea with respect to the quality of the carrier, whether there is a written agreement in place, if the broker has insurance, if the carrier has adequate or comprehensive insurance, whether the carrier is upper tier by FMCSA standards, whether there is a unfavorable previous loss history, how long the other broker has known or done business with the other carrier, to name a few of many concerns… Not all double broker situations ( sometimes called co-broker) situations are bad. The broker may be very professional and have a tip-top operation and his own insurance.  Double brokering situations exist. Insurance companies don’t like it and some cases it can void coverage.

Is Hijacking terrorism? - While it could be, hijacking would be considered theft in most policies and covered.

Are Illegal Acts Covered? - while all cargo and contingent cargo policies are different, we do not see coverage either on a primary cargo or a contingent cargo basis for illegal acts

Q- Are double brokered loads covered with Hanover?
A- Hanover's intention is to cover most cases where a load would be double brokered unknowingly by the subcontractor originally intended to handle the shipment. Could there be caveats where a double brokered load is not covered? The answer is yes. If our insured brokers a load to a trucker that he/she has a broker contract with and the BOL/contract make them legally liable for the load and the load is re-brokered, then there is coverage. I do see other contingent cargo carriers deny losses if the carrier who was intended to haul the load never actually hauled the load- a very big problem. An example where there would not be coverage would be if the insured re-brokers a load to another truck broker who in turn has a trucker that has the BOL in the name of an unknown, non-contracted party. Then Hanover claims would have a problem. While I believe Hanover's coverage is the industry's broadest, I do not think other contingent cargo insurance carriers would handle this situation in a dissimilar fashion. What we see in the industry is that even companies like CH Robinson, the nation's largest truck broker,are in the rebrokering business. You can bet they think they have the "umbrella" of contingent cargo coverage and do not.




Truck Broker Liability and Contingent Auto Liability

Q- Does there need to be a separate entity for the trucking operation versus truck brokerage Operation?

A- The hardest part about underwriting brokerage operations in the same name as the trucking operation with their common and/or contract authority is the stacking of limits issue. One of the challenges is if the brokerage side is integrating the trucking operation into the equation. Typically there is an owned vehicle exclusion ( as owned vehicles are covered in the primary auto) so if the insured is spotting his own trailers in his brokerage operation, he may be thinking he is covered by his brokerage casualty policies- when in fact he is most probably only covered by his primary auto policies.

Just another reason to have the brokerage operation in another entity - which the commercial auto underwriters want anyway.....

Q- Does the truck broker liability cover losses where there is no written contract between the broker and the carrier?

A- No, a written agreement is required. While that may sound onerous, in my view it is fair as it establishes the basis for legal liability in the supply chain between a trucker and the truck broker. Food for thought...

Q- Is a written agreement always required for TBL coverage? A- Yes. Here's why: The fact of the matter is that all carriers both large and small do get in at-fault accidents and our broker insured can be exposed as co-defendants, which increases LAE, inclusive of adjustment and investigative expense and legal defense costs. Under CSA, there are big carriers that are deficient in 2-3 BASICs. So they are not immune from greater scrutiny and liability. Markel views it as imprudent to enter into these sorts of transactions without a written agreement. There’s a lot more to it other than just protecting the broker from liability.
Q-Is there a deductible for Contingent Auto and Truck Broker Liability?
A- No, not at this time. For larger accounts, there is an SIR program starting at $50,000

General Liability

Q- Why is General Liability even needed for a truck broker?

A- Trucking insurance does not mirror truck brokerage insurance in that the former involves the utilization of physical assets and the latter is non-asset based. Truckers buy Auto Liability, Physical Damage, Motor Truck Cargo, GL, Property and WC. Truck Brokers buy Truck Broker Liability, Professional Liability, Contingent Cargo, GL, Property and WC. They are also required to have a bond. Shippers often don’t distinguish between truckers and truck brokers. So they require GL in most cases. It’s valid to require same in that both truck broker liability and contingent auto do not provide premises coverage. GL provides that coverage amongst other coverages.