Varying definition of "accident" in report on truck driver's employment history may have violated Fair Credit Reporting Act

Law Reporter, May 2002

CONSUMER PROTECTION

Varying definition of "accident" in report on truck driver's employment history may have violated Fair Credit Reporting Act.

Cassara v. DAC Servs., Inc., 276 F.3d 1210 (10th Cir. 2002).

The Tenth Circuit Court of Appeals held a report provided to prospective employers that a truck driver had been involved in several "accidents" may have been unlawful, as the reporting agency did not have an adequate definition of what constitutes an accident.

Here, a truck driver seeking employment learned his prospective employers had received a report from a consumer reporting agency that stated he had been involved in a number of "accidents." He sued under the Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681 et seq., alleging that, by failing to use a standardized definition of accident, the agency had failed to follow reasonable procedures to ensure maximum possible accuracy, as required by the statute. The trial court granted summary judgment for defendant.

Vacating in part, the Tenth Circuit observed that, without explicitly stated criteria, the reporting of various events grouped into the "accident" category in the report on plaintiff necessarily would lack the precision needed to assure consistency among all reports produced by the agency. The employers that supply the information to the agency rely largely on their own criteria for reporting accidents and other events worthy of note, and these criteria vary. Defendant argued that the occurrence of damage or injury is not essential to an accident, and that an "unexpected occurrence" would be sufficient. Yet there are many unexpected occurrences, the court said, encountered by commercial truck drivers and other motorists on a daily basis that persons using everyday language would not characterize as accidents. In any event, the criteria defining the category of "accidents" reported on defendant's forms remain largely implicit, the court said.

The interests of the trucking industry, the court added, reach beyond concerns about highway safety to matters of economics and profitability. The inclusion in defendant's reports of incidents in which equipment was "damaged while assigned to the driver regardless of fault" indicates the extremely broad definition of accident that is sometimes used. For example, one incident cited against plaintiff concerned his turning around on a private parking lot, apparently damaging the surface of the lot. His truck and trailer were not damaged, and he did not collide with any other vehicle or object, yet this matter was cited as an "accident" in his report.

Given the absence of uniform criteria for defining the term "accident," the court concluded that plaintiff had raised a genuine question of material fact as to whether defendant had followed reasonable procedures and thereby complied with the FCRA.

Accordingly, the court remanded.

Plaintiff,rs Counsel

David F. Barrett, Joplin, Mo.

*R. Deryl Edwards, Joplin, Mo.