June 10, 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 has decided to publish it in two parts. Following is Part II
Right about now, 8,000 churches, hotels, tour companies – the owners mid-sized buses outfitted and sold by Forest River Inc., of Indiana – should be readying the vehicle they bought to transport their parishioners, their guests, and tourists, for a repair that would make them safe to carry a full load of passengers and cargo. The remedies, ranging from the removal of seats to more robust tires to shoring up the bus’s suspension is part of a class-action settlement approved two months ago. But the discovery that mid-sized Starcraft XLT buses might be too heavy for the weight originally certified goes back even further, to a deadly crash six years ago, when a Louisiana church was devastated by the loss of two children – including a pastor’s daughter.
On July 12, 2009, the First Baptist Church of Shreveport’s youth group and six adult chaperones were bound for a week-long stay at a youth ministry summer camp, when the church’s 42-passenger 2007 Starcraft XLT International suffered a catastrophic tread separation, causing it to roll over one and a half times on Interstate 20. All 23 passengers were injured, two fatally. With no seatbelts to keep them in bus, Maggie Lee Henson, a sunny 12-year-old girl who dreamed of a career on Broadway, and Brandon Ugarte, 14, were thrown from the shattered panoramic windows and died of their injuries.
The aftermath of the crash was made that much more painful by the discovery that the church’s then-two-year-old bus might have been overloaded. Despite 42-seats and a large walk-in cargo area, the bus could not safely hold a full complement of passengers and their belongings. Overloading is a long-understood problem in certain vehicles, such as Class A motorhomes and 15-passenger vans. Loading a vehicle beyond its engineered capacity can stress tires to the point of failure, and negatively affect its handling, turning an over-steer maneuver into a rollover.
One year after the crash, the Henson family and other crash victims sued Forest River, the final stage manufacturer which added the bus body on a chassis built by Navistar certified to a certain weight capacity. An investigation by their attorney John Davidson discovered other church buses with the same problem. Depositions with company principles revealed the lack of engineering training among Forest River’s engineers, and a lack of proper equipment to accurately weigh its buses.
That meant that many Starcraft mid-sized buses had been modified – with too many seats or large cargo holds – beyond the Gross Vehicle Weight Rating (the fully loaded weight, of occupants, cargo and fuel) certified by the chassis maker. Instead of addressing the issue, Forest River put certification labels on their buses showing that they could hold no or little cargo – even though some would be overloaded with passengers alone.
In its defense, Forest River suggested that the First Baptist Church was at fault for failing to properly maintain the bus’s tires. But in December 2012, the bus-maker settled with the plaintiffs for an undisclosed amount and several months later, launched a limited recall to address the weight certification issue.
“It was something difficult and terrible,” says Maggie Le Henson’s father, Rev. John Henson. “But we can see some good that has come out of that – holding the bus company accountable. It’s a justice issue for us. After the accident, Forest River was not being very transparent with us, and that created a bigger need to make sure these are off the road.”
Class Action Lawsuits Widen Recall to 8,000 Buses
The personal injury claims were followed by two class-action lawsuits filed by churches in Florida and South Carolina. A parishioner of the Church of Christ in Charleston, South Carolina had heard about the First Baptist Church crash from a friend who was an attorney. The Church of Christ also owned a Starcraft XLT bus, built for 34 passengers. When they checked the certification label, they noticed that the vehicle was not certified to carry any cargo.
In December 2011, as the personal injury cases proceeded, the Church of Christ filed a class-action lawsuit which asserted that the bus manufacturer had violated the federal Gross Vehicle Weight Rating certification and compliance requirements for buses manufactured between 2002 and 2007, when Forest River stopped weighing its buses by hand and switched to a weight-calculating software program. Specifically, the settlement said, Forest River had neglected to weigh the buses with a full tank of gas.
Their bus “was used pretty regularly every week,” says T. Christopher Tuck, a South Carolina attorney with Richardson, Patrick, Westbrook & Brickman, who represented the Church of Christ. “The concern they had was when they took these long road trips, they wanted to make sure they weren’t doing anything inappropriate. And, they had an obligation to act not just in relief for themselves, but to extend it to other churches that owned buses.”
In May 2012, a second church, New Mount Zion African Methodist Episcopal Church in Tallahassee, Florida filed a separate class claim, making the same allegations. Neither suit made it as far as class certification – the last, but key, step in the class-action process required so that a case may proceed and be resolved.
Forest River disputed the claims but agreed to settle the case in July “to avoid the time, expense, and uncertainty arising from protracted litigation.”
The July 2014 settlement offered the same remedy extended to just 399 Starcraft XLT owners after the Henson case was resolved, two years earlier. Forest River agreed to contact more than 8,000 owners of Starcraft buses to determine the vehicle’s stated weight was actually its true loaded weight, with fuel, passengers and cargo. Then, either re-label the vehicle, re-certify the vehicle for GVWR and FMVSS compliance, or if necessary, modify the bus to bring it into compliance. The safety remedies included new tires, reinforced suspensions or the removal of seats. Again, Forest River agreed to reimburse the bus owner $1,500 per seat.
Tuck says that the documents it obtained during discovery allowed them to accurately determine the number of buses that were impacted. The February 2013 recall served as “a template for how to resolve the broader issues.”
The settlement also required Forest River to notify the U.S. Department of Justice within 10 days of the final approval of the settlement. On August 4, Forest River notified that U.S. District Court in Charleston that it had notified NHTSA, the Department of Justice and states Attorneys General.
U.S. District Judge Patrick Michael Duffy approved the settlement on March 31.
“We’re pleased that the defendants agreed to do this without additional years of fighting about it,” Tuck says
Forest River Gets Sideways with NHTSA
In addition to allowing high school graduates to engineer buses, mis-weighing its products on gravel pit scales, and selling mislabeled vehicles to owners who had no idea that their buses could not safely hold a full complement of passengers and their luggage, Forest River was not fulfilling several of its safety notification obligations under federal law.
The Transportation Recall Enhancement, Accountability and Documentation Act of 2000, requires manufacturers to submit Early Warning reports with NHTSA identifying injury, death, warranty and property damage claims along with consumer complaints, field reports and light vehicle production data. EWR data is supposed to help NHTSA investigators detect emerging defect trends.
On September 30, about two months after Forest River notified the agency, NHTSA opened an Audit Query investigation into the company’s reporting practices. An agency review of its EWR reports showed that “Forest River has not provided NHTSA with any information regarding claims related to deaths and injuries involving the company's vehicles or any information regarding property damage claims, warranty claims, consumer complaints and field reports.” Further, the agency found that “Forest River may have failed to submit to NHTSA quarterly reports on the company's progress completing safety recalls,” and failed to comply with other recall-related requirements, such as not including the required language in its recall notices and not submitting recall-related communications to NHTSA.
In October, NHTSA sent Forest River a 10-page Special Order directing the manufacturer to explain its processes for identifying reportable EWR information in the past five years and any anticipated changes to its practices. It also required Forest River to report every death, injury, property damage and warranty claims, filed reports and consumer complaints for the last five years. The agency also demanded that Forest River provide copies of all communications to dealers, owner and manufacturers since July 1, 2009. NHTSA asked no specific questions about the July settlement agreement that expanded the 2013 recall.
NHTSA declined to comment on Forest River’s missing notice to NHTSA for the 8,000-bus recall, citing its practice not to comment on open investigations. A spokesman would only say that the agency has an open investigation into Forest River for a range of potential violations of the Safety Act, including failure to comply with recall requirements.
In late October, Forest River submitted its response to NHTSA. It included a table of recalls and responses to some of NHTSA’s questions about its corporate structure and officers. The manufacturers, however, said that it could not send NHTSA all of the missing reportable information by NHTSA’s deadline, blaming a “software failure.” Forest River asserted that it had hired a company to custom-design software that would automatically submit its quarterly EWR data, and had assumed that death or injury, property damage claims, consumer complaints, and warranty claims had been sent to NHTSA all these years.
It wasn’t until it received the Special Order that “Forest River learned that this software was not operating or designed properly. While the software had been designed to capture production information and warranty information, Forest River learned that neither function worked properly. Furthermore, contrary to Forest River's belief, the software had not been designed to capture information related to customer complaints or claims involving one or more deaths or injuries,” the company said in its formal response to the Special Order.
Forest River asserted that it was “taking immediate steps to rectify these reporting problems.” The company would create a new department to deal with its reporting requirements. However, the company could not reconstruct the past records “due to circumstances beyond its control.”
On November 19, NHTSA sent Forest River a demand rejecting its assertion that it could not provide complete responses to the agency’s questions:
“This is unacceptable. We note that previous to issuing the Special Order to Forest River, staff from NHTSA’s Office of Defects Investigation repeatedly informed Forest River that it appeared that Forest River was not meeting its early warning reporting obligations. A purported software malfunction has no bearing on Forest River's ability to provide the information requested by the Special Order. Forest River also offers no explanation for why it does not have available the documents sought by the Special Order,” wrote O. Kevin Vincent, NHTSA’s chief counsel.
NHTSA fined Forest River $126,000, the statutory maximum of $7,000 a day for each day it failed to supply answers after the November 1 deadline. In addition, the agency levied another $7,000 per day until Forest River submitted all of the requested information.
There are no more filings in the public Audit Query file. And, as of early May, Forest River had not filed a Part 573 with the National Highway Traffic Safety Administration notifying it of the larger recall.
The Under Regulated World of Commercial Buses
Six months before the First Baptist Church crash, another 2007 Starcraft XLT suffered a fatal rollover crash. The 29-passenger bus was traveling on U.S. Highway 93, near Dolan Springs, Arizona, when the driver lost control of the vehicle, at 70 mph, causing the bus to roll over. Fifteen of the 17 passenger were fully or partially ejected; nine passengers and the driver were injured, and seven were killed in the January 30, 2009 crash.
The National Transportation Safety Board investigated the Dolan Springs crash, and concluded that it was caused by the driver’s failure to maintain control of the vehicle. But the report also underscored the lack of regulations around mid-sized buses and the disproportionately deadly consequences to their occupants in crashes. In a 9-year period, from 2001-2009, medium-size buses were involved in 83 fatal crashes, with 106 fatalities and 270 injuries. Compared to large buses, the occupants of medium-sized bus crashes were twice as likely to be killed in a crash. The NTSB’s analysis of large bus crashes found that 15 percent were fatally injured, compared to 31 percent in medium-size buses.
Buses are defined very simply in the regulations: a motor vehicle with motive power, except a trailer, designed for carrying more than 10 persons. NHTSA regulations only subdivide this category by weight –buses that weigh less than 10,000 lbs. and buses that weigh over 10,000 lbs. Inter-city, shuttle or mini-bus, motor coaches and mini-buses over 10,000 pounds, that are not traditional school buses are subject to fewer occupant safety protections than passenger vehicles. The FMVSSs contain 22 standards on vehicle crashworthiness, and most exempt non-school buses with gross vehicle weight ratings over 10,000 pounds. In fact, buses and motorcoaches are only subject to three: FMVSS 217, which establishes minimum requirements for window retention and release; FMVSS 205, which covers windshields and glazing; and FMVSS 302, which establishes standards for the flammability of interior materials.
Compliance with Federal Motor Vehicle Safety Standards really means very little for crashworthiness when it comes to buses. Not only are they subject to almost no standards, the benchmark for establishing loaded vehicle weights is out-of-date and significantly inadequate. Research by engineering expert Mark W. Arndt of Transportation Safety Technologies Inc. based in Mesa, AZ, has shown that the anthropometric data that forms the basis of loaded vehicle weight calculations does not reflect the size of today’s average American.
“If you think about the situations when vehicles are fully loaded – schools, team buses, limousines, 15-passenger vans rented at places where families go on vacation and these shuttle buses, it’s a real problem – particularly when talking about people being the main constituent of the load, because people are so much heavier than the standard requires,” Arndt says.
Medium-Size Buses Left Out of Rulemaking
The Motorcoach Enhanced Safety Act of 2012, a provision of the Moving Ahead for Progress in the 21st Century Act, required NHTSA to initiate rulemaking requiring large buses to be equipped with restraint systems. In November 2013, NHTSA published a Final Rule amending FMVSS 208 Occupant Crash Protection for each passenger seating position in all new over-the-road buses, and in new buses other than over-the-road buses with a gross vehicle weight rating (GVWR) greater than 26,000 pounds (lb).” The agency did not extend these protections to the occupants of mid-sized buses, because it did not have enough time to examine the issue, given the tight time constraints to publish a final rule imposed by the legislation:
We believe that a belt requirement for buses with a GVWR of 4,536 kg to 11,793 kg (10,000 lb to 26,000 lb) is an important issue, our understanding of which would benefit from a fuller discussion of related issues. We would like to consider more fully matters related to the current and future use of the buses, belt use, any technical issues, and the benefits and costs of a belt requirement.
Similarly, a 2014 Notice of Proposed Rulemaking to establish a new standard to enhance the rollover structural integrity will only apply to large buses. The new standard would require new large buses to pass a test in which the vehicle is tipped over from an 800 millimeter (mm) raised platform onto a level ground surface. The performance requirements include sufficient survival space to restrained occupants and retention of seats, luggage racks and windows in rollover crashes. NHTSA exempted medium buses from its proposal because historically, crash data showed that they were involved in fewer fatal rollovers each year –an annual average of 1.3 rollover crashes, with 2.4 fatalities, compared to and annual average of 3.2 rollover crashes among buses over 26,000 lbs., with 11.4 fatalities per year.
But, the occupant protection capabilities of medium-size buses continues to be an issue for the National Transportation Safety Board. In 1999, the NTSB began to push for better bus safety standards. In that year, it recommended that NHTSA standardize its definition of buses to distinguish among multi-stage specialty buses, transit buses, and motorcoaches, both for the standards-setting and for crash data collection. Recommendation H-99-56 stated: “Cooperate with the Department of Transportation in the development of standard definitions and classification for each of the different bus body types.” The NTSB also issued a Special Report focusing on non-standard buses used for student transportation, including 15-passenger vans and “mini-coach” buses. The report pointed out that medium-sized bus crashes featured fatalities caused by ejection, and a lack of three-point belts for passengers.
More recently, in October, the NTSB submitted comments to NHTSA’s bus rollover docket, protesting NHTSA’s decision to exclude buses weighing less than 26,000 pounds. It criticized the agency for failing to account for these buses in its definition of a motorcoach, from Section 3038(a)(3) of the Transportation Equity Act for the 21st Century (TEA-21): “a bus characterized by an elevated passenger deck located over a baggage compartment.”
NHTSA Weight Standard Does Not Reflect Reality
Under the current federal certification requirements, the Gross Vehicle Weight Rating of a motor vehicle shall not be less than the sum of the unloaded vehicle weight, rated cargo weight and 150 pounds times the number of designated seating positions. As a result of his work for the plaintiffs in the First Baptist Church bus crash and the class action lawsuits, Arndt wrote three technical papers, including one published in SAE and another as part of the proceedings of ASME’s 2012 International Mechanical Engineering Congress & Exposition on passenger and cargo loads.
Arndt looked at the sources of occupant weight data used by NHTSA, the Federal Transit Administration and the Federal Aviation Administration to determine load limits. The current vehicle per-occupant weight standard is apparently based on the National Health Examination Survey for 1960-62, in which adult men and women were 168 pounds and 142 pounds respectively.
The Tire and Rim Association and Mid-Size Bus Manufacturers Association both have voluntary weight standards that account for occupant weight and cargo weight per occupant. The MBSMA’s recommended practice includes 25 lbs. of cargo per occupant and an additional 5 lbs. if overhead luggage racks are present. The TRA’s recommendation for bus, truck and trailer tire selection puts occupant weight at 150 lbs. per person, and for inter-city travel buses, 185 lbs. per occupant at full capacity.
His analysis showed that “a median unclothed weight of at least 175 pounds would represent an equal male and female population of all race and ethnicity” in the U.S.
He also examined various scenarios in which mid-size and large buses combined with different occupancy rates could produce overloading. In docket comments to an June 2012 FTA rulemaking, the Mid-Size Bus Manufacturers Association demonstrated that its members understand the consequences of overloading: “NHTSA has indicated that the Agency considers it to be a safety defect for a manufacturer to produce a vehicle that would be overloaded by design in carrying it's (sp) intended payload,” it said..
Yet, Arndt’s modelling showed that in some cases, mid-size buses would have to have empty seats and assume a per-occupant weight average well below the 150-lb. standard to lower the over loading risk to less than 50 percent. And the net weight of the cargo and how and where it’s distributed are also factors in overloading, he says. Airlines weigh individual luggage each flight. Shuttle buses operators use no such system. In the class action, all four representative vehicles that Arndt weighed, which ranged in capacity from 15 to 43 seats, was overweight in some capacity – just using the federal standards.
“If I added in the real weights of adults or even high school students, there was a good chance that the fully loaded weight in the higher-capacity buses could be thousand pounds overweight,” he says.
“It comes down to: What is the straw that breaks the camel back? Is it one factor or is it a series of factors. People have not paid attention to how it is eating into their safety margins or affecting their design assumptions,” he adds. Forest River, in particular, was “very unsophisticated. They didn’t even own scales big enough to weigh the vehicles they were building. They didn’t have degreed engineers,” he says. “What scares me is: the factor of safety evaporates – it gets used up very quickly because of a series of oversights.”
NHTSA has done nothing to re-examine the occupant weight assumptions based on 55-year-old data. In March 2011, the FTA proposed a rulemaking to increase the per-occupant weight to 175 lbs., in an effort to define a fully-loaded weight that did not conflict with NHTSA’s. But the agency was forced to withdraw the proposal after the MAP-21 required FTA to conduct a comprehensive review of its testing program before establishing new standards.
“We know in other transportation modes, such as the Coast Guard for ferries and the FAA for aircraft crashes have occurred because vehicles have been overweight, but although we can demonstrate a real deviation which has safety risk from an accepted standard, we don’t see a lot of crashes that seem to be associated with overweight buses.”
NHTSA has, however, researched the rollover risks of 15-passenger vans, and found that the rollover risk that increases dramatically as the number of occupants increases to more than ten. “In fact, 15-passenger vans with 10 or more occupants had a rollover rate in single vehicle crashes that is nearly three times the rate of those that had fewer than five occupants,” the agency noted in a May 2009 Traffic Safety Facts Research Note.
The lack of regulatory interest in adjusting the weight assumptions of buses may lie in the small overall crash risk exposure – “vehicles are overloaded for a relatively small amount of time that in combination with a longstanding industry practice, the overall risk is low – it’s a rare occurrence,” Arndt says.
For Rev. John Henson that risk appears omnipresent – and not so rare. Six years after his 12-year-old daughter Maggie Lee died in a bus crash, Henson is still on high alert for a church bus that could be hauling more than it can handle.
"Every day on the interstate, I see buses that look a lot like the bus in our crash and if I see the name of the church, I will try to call them and tell them: be sure you look at the weight. Does your bus have seat belts? Churches are starting to become aware because insurance companies are reluctant to insure them. They don’t want have anything to do with church transportation and that says a lot about the lack of trust and care in the bus company.”
Sometimes, if he spots a bus in a gas station, he’ll pull in to chat with the driver about everything he has so excruciatingly learned about the failures of suspension systems and windows in bus crashes and the possibility of overloading.
“Usually the reaction is: ‘Oh, I’m just the driver. I didn’t know about that.’ ”[A Bus Crash, Litigation, and a Surprising Result: Part I ]