NHTSA Fines Bus Maker Forest River

Today, the National Highway Traffic Safety Administration levied the maximum penalty against Indiana-based heavy vehicle manufacturer Forest River – $35 million for failing to launch timely recalls and for failing to fulfill a host of reporting obligations to NHTSA.  (Spartan Motors, another manufacturer of heavy vehicles, also got dinged for $9 million yesterday for failing to file Technical Service Bulletins with the agency, and in six cases, failed to launch recalls on safety defects ranging from Tag Axle Wheel Bearing failures to engine cooling fans to sway bar end links.)

As laid out in a Consent Order, Forest River was ostensibly fined for its failure to launch recalls in two instances, in which it merely issued TSBs. NHTSA told Forest River in February and March, respectively, that sending out a TSB for Rockwood and Flagstaff camper trailers with loose wiring in a heating element that could result in a fire, and a second TSB regarding Palomino camper trailers manufactured without an exhaust vent which could lead to carbon-monoxide exposure or a fire, was not how Things Are Done. Both safety violations demanded recalls – which Forest River only launched after NHTSA told it to do so.

Other crimes in the Consent Order’s laundry list included: a failure to respond adequately to a Special Order, failure to file early warning reports, failure to file recall quarterly progress reports and a failure to notify the agency of Canadian recalls.

But the timeline of this penalty actually goes back six years ago to a church bus crash and through cases brought by civil litigators – which eventually caught the attention of government regulators. On June 9, The Safety Record Blog published a two-part story about a 2009 fatal rollover in Mississippi that resulted in a civil liability settlement, a class-action lawsuit, two recalls and an agency Audit Query. (See A Bus Crash, Litigation and a Surprising Result Part I, Part II)

To recap: In July 2009, two members of the Shreveport, La. First Baptist Church youth group died and 21 passengers aboard a 42-passenger 2007 Starcraft XLT International 3200 bus manufactured by Forest River were injured. The group was enroute to Macon, Georgia to attend a youth ministry camp, when the left rear tire of the 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 company had built the bus on a Navistar chassis certified to a certain fully loaded weight. But in outfitting the bus with extra seats and a cargo room for customers such as churches, Forest River had cut the chassis in half and extended it to make it longer. Frame rails were also added to the rear of the bus to extend it even further for the cargo area. As re-configured by Forest River, the bus was no longer safe to carry a full load of passengers and their luggage.

Overloading has long been a safety issue affecting the recreational vehicles, 15-passenger vans and shuttle buses. Encumbering a vehicle with more passengers and cargo than its weight rating can support strains tires to point of failure, and change a vehicle’s dynamics in pre-crash maneuvers, making it more prone to loss-of-control crashes and rollovers. The combination of a catastrophic tread separation and an overloaded vehicle often has deadly consequences for occupants in vehicles that offer little occupant protection in crashes.

The victims sued Forest River. John Davidson, a Jackson, Mississippi lawyer who represented some of the plaintiffs discovered this loaded weight discrepancy in the First Baptist’s bus, and other, similar medium-sized buses. He also discovered, in deposition testimony, that none of Forest River’s engineers actually had engineering degrees, and the company had no industrial scales to weigh their products. The personal injury cases were settled in December 2012.

Forest River followed up in February 2013 with a small recall in which it determined that 399 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, re-labelled the buses correctly. Other units would have seats removed with a reimbursement of $1,500 per seat. In its legally mandated Part 573 chronology, Forest River did not mention the crash, injuries or deaths; it simply mentioned that a “warranty claim” prompted the review.

Meanwhile two other churches filed cases against Forest River in separate class-action lawsuits. The Church of Christ in Charleston, South Carolina and the New Mount Zion African Methodist Episcopal Church, of Tallahassee, Florida filed a separate class claims, making similar allegations that Forest River had sold buses at loaded weights that were improperly certified. Forest River disputed the claims but agreed to settle the case.

The July 2014 settlement offered the same remedy extended to Starcraft XLT owners in the recall two years earlier. 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.

Forest River, however, never did file a Part 573, even though the class-action settlement constituted an expansion of the 2013 recall.

On September 30, about two months after Forest River notified the agency, NHTSA opened an Audit Query into the company’s reporting practices. In October, NHTSA sent Forest River a Special Order asking it to produce all of its missing records to NHTSA. When Forest River said that it just wasn’t possible, the agency started fining them $7,000 a day.

And that brings us to today. Despite the path from crash to fine, the bus debacle only got a brief mention. Buried in a section entitled Remedying Past Noncompliance was this:

No later than 30 calendar days after the execution of this Consent Order, Forest

River shall submit to NHTSA a Part 573 Report to include all vehicles subject to the settlement agreement in The Church of Christ at Azalea Drive v. Forest River, Inc., et al., Case No. 2:11-cv-03371-PMD in the U.S. District Court for the District of South Carolina and New Mount Zion African Methodist Episcopal Church, Tallahassee, Florida v. Forest River, Inc., et al., Case No.4:12-cv-00221-MW-CAS in the U.S. District Court for the Northern District of Florida not already covered by Recall No. 13V-100.

We’ve said it before. We’ll say it again: Civil litigation matters.



A Bus Crash, Litigation, and a Surprising Result: Part II

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.

Forest River has been filing production data since 2000, but only filed property damage claims since 2013. The company reported no deaths and injury claims before the second quarter of 2014. Last year, Forest River reported injuries in two trailer crashes along with 5 deaths and 13 injuries in three bus crashes in Delaware, Texas and Missouri. It did not submit EWR reports for any of the nine deaths and 30 injuries in the two crashes that occurred in 2009. 

[The Safety Record has been reporting on the lack of EWR filings and NHTSA’s selective handling of noncompliance. See EWR: Elective Warning Reports – When Manufacturers Don't Report Claims and Elective Warning Reports Redux]

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 ]

A Bus Crash, Litigation, and a Surprising Result: Part I

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.”

Over the six years the Henson case has unfolded, the issue at its heart – the discovery of buses that could not safely carry a full load of people and cargo – marketed to unsuspecting church groups, schools and tour companies, however, remains unresolved. Overloading has long been a safety issue affecting the recreational vehicles, 15-passenger vans and shuttle buses. Encumbering a vehicle with more passengers and cargo than its weight rating can support can strain tires to point of failure, and change a vehicle’s dynamics in pre-crash maneuvers, making it more prone to loss-of-control crashes and rollovers. The combination of a catastrophic tread separation and an overloaded vehicle often has deadly consequences for occupants.
NHTSA has tried to address the dangers in Class A motorhomes and 15 passenger vans. In 2008, the agency responded to a series of tire and weight-related RV investigations and recalls with an amendment to Federal Motor Vehicle Safety Standard 110 Tire Selection and Rims requiring motorhome manufacturers to affix in a prominent place labels showing the weight of the fully loaded vehicle, including water, the occupants and cargo and the seating capacity of the vehicle based on the number of seat belts. In the case of 15-passenger vans, NHTSA has never addressed the issue via regulations or defect investigations. Instead, it has issued numerous Consumer Advisory warnings to motorists about the dangers of overloading 15-passenger vans.  
But medium-sized buses operate in a regulatory gray area, even as their popularity grows. A report by the National Transportation Safety Board notes that each year, about 10,200–13,600 units are produced – mostly for municipal para-transit. But 20 percent are sold to churches, schools. Hotels, rental car, tour and charter bus companies buy the rest.
“According to representatives of the United Motorcoach Association (UMA) and the ABA, medium-size buses are a growing trend in the passenger transportation arena due to their ability to generate high revenues, their lower retail costs as compared to motorcoaches, and their passenger capacity,” the NTSB report said.

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.