June 9, 2015
Editor’s Note: A Bus Crash, Litigation, and a Surprising Result is a complex and extraordinary story involving crash deaths, corporate malfeasance, regulatory gaps and litigation that produced significant results – not just for the plaintiffs, but for public safety. Given the length necessary to do this story justice, The Safety Record Blog has decided to publish it in two parts.
Maggie Lee Henson was on her way to do a week’s worth of good deeds when she was fatally injured in a bus crash in July 2009. But, she hasn’t stopped yet. After three weeks in a coma, her parents, Rev. John and Virginia Henson said their goodbyes and donated her organs to two donors. Every autumn, people celebrate her October 29th birthday by collecting canned food, or holding a book sale or a charity ball game in her name. Maggie Lee for Good – a day of good works – has become a tradition in her hometown of Shreveport, Louisiana and beyond.
The death of Maggie Lee Henson, a 12-year-old who always stood up for the underdog, and the litigation that ensued helped spur significant and long-lasting changes. In 2013, the deadly crash led to a small recall to address an overloading defect. On March 31, the U.S. District Court in Charleston, South Carolina approved a class-action settlement in which manufacturer Forest River agreed to recall and remedy 8,000 medium-sized buses that could be dangerously overloaded due to improper weight ratings.
“It’s a better world if it’s a safer world,” Rev. Henson says. “I don’t know if I can summarize [her legacy]. It was a terrible, terrible thing, and while we don’t believe God caused it to happen, God has helped us bring some good from it. Maggie Lee lives on in so many ways. She was a very selfless person – even at 12 years of age – for her to be able to achieve some justice – she would have approved.”
And most churches, looking for affordable transportation, have little awareness of the dangers of overloading their buses, Rev. Henson says.
“There’s a lack of knowledge,” he says. “These churches and schools buy them and they don’t really know what they bought. Churches are starting to become aware because insurance companies are reluctant to insure. They don’t want have anything to do with church transportation. That says a lot about the lack of trust and care in the bus companies.”
The case has laid bare the gaps in the federal safety standards governing medium-size buses and woefully out-of-date weight allowances for occupants. Finally, the litigation has touched off a federal investigation into Forest River’s failure to meet its safety obligations in myriad ways. The company is currently accruing a $7,000 a day debt with the National Highway Traffic Safety Administration for not responding adequately to an investigation into its compliance with a host of auto safety and recall requirements.
Forest River has denied that overloading was a factor in any crash, and says that its reporting failures were due to a software error. In a May 15 letter to The Safety Record, Forest River reiterated a defense it made to NHTSA on its high standards and operating practices:
“Forest River has a long history of dedication to safety and quality. This dedication can be seen throughout Forest River's cutting-edge business practices. For example, Forest River has developed an innovative Pre-Delivery Inspection ("PDI") program. Under this program, each and every vehicle Forest River manufactures is extensively tested and examined at a state-of-the-art PDI facility to ensure its vehicles are of the highest quality. As a result of this comprehensive PDI program, Forest River has one of the lowest percentages of warranty claims in the industry. On a related point, Forest River's bus divisions have received perfect scores through Ford Motor Company's Qualified Vehicle Modifier Program. To Forest River's knowledge, it is the only company to receive such a score.”
Uncovering the Starcraft Weight Problem
It was Sunday morning when Henson and other members of the First Baptist Church youth group and six adult chaperones boarded the church bus, a 2007 Starcraft XLT International 3200, a Forest River brand. The group was headed to Macon, Georgia to attend a Passport camp, a youth ministry program that weaves traditional camp activities with aid to impoverished communities. Later that morning, the left rear tire of the 42-seat Starcraft bus suffered a catastrophic tread separation, prompting a loss of control that caused the bus to roll over one and a half times. The Starcraft came to rest just off of Interstate 20 in Lauderdale County, Mississippi. Henson, Ugarte and at least three others were thrown from the bus’s large panorama-style windows, most of which had disintegrated.
Two were killed. Henson died of head trauma after three weeks at the University of Mississippi Medical Center. Brandon Ugarte, 14, died while being airlifted to the hospital. In total, all 23 passengers were injured to some degree. Among the severely injured were Olivia Brubaker, 13, Lindsey Johnson, 17, Chase Johnson, 14, Sarah Smith 12, and adults Kyle Kelley, and Jason and Sara Matlack.
This was the second deadly rollover crash involving a Starcraft XLT bus in six months. On January 30, 2009, a 2007 Starcraft 29-passenger bus, carrying the driver and 16 passengers rolled over, killing seven. Nine passengers and the driver were injured. The bus was traveling northbound on U.S. Highway 93, near Dolan Springs, Arizona, when the driver lost control of the vehicle, at 70 mph. The bus yawed, crossing the northbound lanes, before causing it to rollover one and a quarter times before coming to rest on cross the southbound lanes; 15 of the 17 passenger were fully or partially ejected. The National Safety Transportation Board investigated the Dolan Springs crash. Its 2010 report noted the lack of regulations governing medium-size buses and their “limitations….in retaining and protecting passengers during rollovers.” The board did not consider the potential for overloading and attributed its cause to the driver’s failure to control the vehicle.
In a statement to The Safety Record, Forest River said: “There was no indication or finding by NTSB that the StarCraft bus had exceeded or came close to exceeding its gross vehicle weight rating at the time of the accident. Likewise, the NTSB found no evidence to believe that the design or manufacture of the StarCraft bus was the probable cause of the accident.”
The victims sued Forest River, which eventually settled the personal injury claims.
John Davidson, a Jackson, Mississippi attorney, who represented several of the victims and their families in the Henson crash, noticed an issue with the weight and configuration right away.
“It looked odd. A third of the bus was behind the rear axle. One thing that stood out when we were looking at certification label – you had a 42-seat bus with a huge walk-in cargo compartment, but the cargo label indicated that it could only hold 60 lbs.,” Davidson recalled. “The entire bus loaded could only hold 60 lbs. of cargo. Our immediate suspicion was that the vehicle was too heavy for the chassis.”
By regulation, Starcraft buses are multi-stage vehicles, meaning several manufacturers have a hand in the final product. The chassis is built by auto and truck makers, such as Chevrolet, Ford and Navistar. Final stage manufacturers, like Forest River, install the bus body on the chassis, outfit it seats and amenities such as luggage racks and release it into the marketplace. There may also be an intermediate manufacturer that makes modifications, such as cutting the chassis in half and lengthening the frame rail to make it bigger.
For example, the Starcraft bus that crashed in Dolan Springs was a 2007 Chevrolet two-axle, rear wheel drive C-5500 Series chassis, manufactured by General Motors and delivered to Starcraft, in October 2006.
The Starcraft bus owned by the First Baptist Church of Shreveport, La. was built on a Navistar chassis that had been cut in half and extended to make the bus longer. Frame rails were also added to the rear of the bus to extend it even further for a cargo room.
The chassis maker may certify that the incomplete vehicle is rated for a certain weight and in compliance with Federal Motor Vehicle Safety Standards, such as those related to braking. But, the final stage manufacturer may make modifications to the vehicle that invalidate those original compliance certifications, like lengthening the chassis, changing the brake lines or otherwise altering the vehicle to add enough weight to exceed the chassis-maker’s Gross Vehicle Weight Rating (GVWR the maximum operating weight including the vehicle's chassis, body, engine, engine fluids, fuel, accessories, driver, passengers and cargo) or the Gross Axle Weight Rating (GAWR the maximum distributed weight that may be supported by an axle of a road vehicle.) A multi-stage bus loaded beyond the capacity of its weight or axle ratings can negatively affect the vehicle’s braking, handling, suspension and tire performance.
In both cases, Starcraft used the original manufacturer’s compliance certifications to assert that the vehicle met government safety standards and was fit for commerce.
It took a year – just beating the Louisiana statutory deadline – before the Hensons and other crash victims brought suit against Forest River, the First Baptist Church, and others. Rev. Henson feared that the emotional strains of a lawsuit that might also fray his relationship with his employer, who would have to be a defendant under state law, and community.
“It was complicated. I was naming two of my colleagues,” Rev. Henson said of the lawsuit. “And the most difficult thing was knowing it would keep the issue alive and we’d be re-living that pain.”
As part of the accident reconstruction, Davidson wanted to know what the First Baptist Church’s bus actually weighed, but the vehicle was so structurally compromised that they couldn’t get an accurate figure. Davidson approached Starcraft for help in locating a similar bus, but Starcraft told him that there wasn’t another bus exactly like it. Davidson caught a break when the church’s lawyer found a fax from the bus retailer containing a hand-written note indicating that the First Baptist Church of Washington, North Carolina had ordered a virtually identical bus. Davidson enlisted Rev. Henson to persuade his colleague Pastor James Moore to let them examine his church bus.
In the summer of 2010, Davidson and his expert Mark Arndt flew up to Washington and found the bus’s twin – a 42-seater with a large over-hang behind the rear axle. But, the certification label on this bus was even stranger – its cargo rating was blank.
“It had so much weight on the back it could have done a wheelie. It was a ridiculous-looking vehicle –trying to do too much with too little,” Davidson recalled.
When Davidson weighed the North Carolina bus, he found that with just the passengers, it exceeded the vehicle’s GVWR and did not comply with federal regulations. Davidson knew he had to inform the church.
“We were just shocked,” said Pastor Jimmy Moore. “We had been looking for a vehicle and we did our homework. We looked at fuel efficiency; we looked at transmission and engine reliability. But safety was at the bottom of the list, because we thought that anything we bought would be safe.”
His church hadn’t yet fully loaded its Starcraft bus – still fairly new at the time – to capacity, but eventually it would have – and, Pastor Moore says, the bus would have been overloaded. “You could have 42 people on the bus, but they would have to weigh less than 100 pounds each. There’s no way we could put 42 normal people on the bus.”
As they examined the tire information tag on the door frame, the church also discovered that the OEM tires on the bus did not match the indicated tire size. And, while the tires originally fitted to the bus were larger, Moore says, “as consumers, we had no way of knowing what the proper inflation rate actually was.”
Pastor Moore contacted Starcraft to advise them of the weight issue. The company first offered to reduce the capacity of the bus, but the First Baptist Church wasn’t interested in making its bus less useful. Then, Starcraft offered a silent recall – it would give the church a loaner bus, while it retro-fitted the church bus with a tag axle – a third axle behind the rear axle used to accommodate and spread the vehicle's weight. Starcraft would have the Bosch Automotive Proving Grounds conduct a FMVSS 105 brake test. Starcraft would then re-certify the bus and place accurate certification stickers on the vehicle and exchange buses. The manufacturer also required the church to sign a non-disclosure agreement to prevent it from telling anyone about the safety repair.
“We did not sign that, and we could not sign that in good faith,” Pastor Moore recalled. “They gave us a little run around, but in the end, they did not they did the retrofit and did not require us to sign it.”
In April 2011, after Starcraft returned the modified bus to the First Baptist Church of Washington North Carolina, Davidson’s team tested the fully loaded bus and found that it was compliant with the regulations, with the weight better distributed and the axle weight ratings accurate.
This test formed the basis for the case against Forest River. The victims in the Georgia crash did not allege that the Starcraft bus was overloaded at the time of the incident. The plaintiffs were prepared to argue that that had Forest River paid attention to the true fully loaded weight of the vehicle it would have added a tag axle to support it, as it did to the North Carolina Church bus. The extra axle would have made the bus legal to operate, distributing the load and preventing the rim from contacting the ground causing the bus to roll. In short, the accident would not have happened if the bus had been originally built to the required Federal Motor Vehicle Standards.
Later, Davidson’s depositions of Forest River’s corporate representative found that Starcraft’s head engineer had no more than a high-school education, and in fact, no one in Starcraft’s engineering depart had an engineering degree. Nor did the manufacturer have an industrial scale to weigh its vehicles. Instead, Forest River had been determining the weight of its finished buses by weighing them manually. Staff would drive them to a nearby a gravel pit and using the gravel pit scales to get an unloaded weight.
Forest River said that discovery also showed “that within about two months of the accident, the bus tires were noted during a service interval to have been underinflated by 30-40 PSI, raising questions about the maintenance and the condition of the tires at the moment of the accident.”
None of those issues were raised at trial, because the case in December 2012 for an undisclosed amount.
A Recall follows the Settlement
Forest River, however, was now concerned about the weight issue. In a letter to The Safety Record, Forest River explained: “In early 2013, in the course of performing its own investigation of the theories set forth in the complaints, Forest River determined that if fuel weight were to be considered in calculating the unloaded vehicle weight, approximately 399 StarCraft Model XLT buses were potentially noncompliant.”
On February 26, 2013 Starcraft filed a Part 573 Notice of Defect and Noncompliance. Although each manufacturer is required by law to provide a detailed chronology of how it discovered the defect or noncompliance, Starcraft did not mention the litigation, the crash, the injuries or deaths. It merely stated that “a warranty claim” prompted it to manually review XLT units built from 2004 through 2009. Forest River said that it reported the “potential noncompliance,” and “following consultation with NHTSA officials, an amended report was submitted.”
Forest River determined that XLT buses originally certified for 19,500 lbs. would have to be recertified to a GVWR of 20,500 pounds “to accommodate certain load conditions.” Starcraft offered to install additional lead springs to the rear suspension, upgrade the original four rear tires to 225/70R19.5 G rated tires, re-labelled the buses correctly. Other units would have seats removed with a reimbursement of $1,500 per seat.
Manufacturers are required to send to NHTSA six quarterly reports over 18 months charting the progress of the repairs. According to the public record, Forest River filed only four reports. By July 2014 – as it was signing a settlement agreement with other Starcraft bus owners expanding the recall 20 times the size of first population – it reported to NHTSA that it had remedied 248 – less than two-thirds — of the 399 buses.
The effects of the 2009 crash that killed Maggie Lee Henson however, had not stopped rippling. The Starcraft bus weight problem was now the centerpiece of civil litigation from two Florida churches. And the settlement would multiply Forest River’s troubles on a new legal front with federal regulators.
“Those families, that had never brought a lawsuit in their lives, had the courage to take on the criticism and do what was right in the search for the truth,” Davidson says of the case. “Through their efforts, we were able to determine many other buses had safety related defects like theirs that are now in the process of being corrected. It is a living legacy – Maggie Lee and Brandon recall may have saved the lives/injuries to others their families will never know, other children just like theirs. They told me they would not pursue this litigation unless it could effectuate a change. I believe they did.”
Tomorrow, The Safety Record Blog will continue the story of a 2009 medium-size bus crash that had far-reaching consequences in Part II of A Bus Crash, Litigation, and a Surprising Result.