Tag Archives: broker liability

Now There Are 10. Another Trailer Manufacturer Earns IIHS TOUGHGUARD Award

Fruehauf joins the ranks of trailer manufacturers to earn the IIHS TOUGHGUARD award. So all new dry van trailers, which Fruehauf sells after September 30, 2026, will be built to withstand a rear-end crash and prevent underride and deadly passenger compartment intrusion. Thank you, Fruehauf and IIHS!

While I’m grateful for this advancement in safety, I cannot help but think of the Fruehauf trailers which were manufactured between July 15, 2024 — the date when the National Highway Traffic Safety Administration (NHTSA) required compliance with their too-weak 2022 rear impact guard rule (which did not require the TOUGHGUARD level of strength) — and September 30, 2026. Do the math with me: Fruehauf averages 13,000 new trailers manufactured annually. Times two years. 26,000 trailers on the road without a TOUGHGUARD. With a 10-15 year road-use life expectancy. 26,000 trailers which could potentially be rear-ended — resulting in underride and lethal passenger compartment intrusion.

Something’s wrong with this picture.

[I wonder if brokers realize the liability risk posed by the hundreds of thousands (millions?) of trailers which are transporting goods across this country’s roads without adequate underride protection.]

Here are the North American truck rear underride guard ratings from IIHS: Recognizing good rear underride protection

Insurance Institute for Highway Safety PRESS RELEASE:

Fruehauf dry van trailer earns IIHS award for underride protection
ARLINGTON, Va. — Kentucky-based Fruehauf is the latest semitrailer manufacturer to earn the Insurance Institute for Highway Safety’s TOUGHGUARD award for superior underride protection.

The award applies to the company’s 53-foot dry van trailers built after Sept. 30, 2026.

A dry van trailer is a fully enclosed semitrailer designed for freight. Fruehauf offers models with walls made from composite and aluminum, both of which earn the award.

“We’re excited to add Fruehauf to the list of trailer makers offering superior protection for other road users,” IIHS President David Harkey said. “The TOUGHGUARD award continues to be a key part of our strategy for improving the safety of commercial vehicles.”

A rear underride guard is a metal frame attached to the back of a large truck to prevent lower-riding vehicles from sliding beneath the trailer in the event of a rear-end crash. Semitrailers are required to have rear underride guards that meet federal safety standards. However, IIHS research and crash tests have shown that many can buckle or break off in a crash.

Underride guards that meet the TOUGHGUARD criteria are substantially more likely to withstand an impact, reducing the severity of the crash.

To earn the IIHS award, the rear guard must be strong enough to prevent underride by a midsize car when it rear-ends the trailer with its full width, a 50% overlap and a 30% overlap. The 30% overlap configuration is the most challenging, because one corner of the underride guard must absorb all the force of the impact.

Initially, these tests were conducted in-house. Now IIHS allows trailer manufacturers to submit data and footage from tests conducted at their own facilities or by contractors for IIHS experts to review. The tests of Fruehauf’s dry van trailer were conducted by MGA Research Corporation.

This is the first of Fruehauf’s trailers to qualify for the TOUGHGUARD award. Ten North American trailer manufacturers have earned the accolade since the program was launched in 2017.

Can Brokers Be Held Liable For Preventable Underride Deaths?

Given the recent Supreme Court decision on broker liability for hiring unsafe carriers, I asked myself the question, “Can brokers be held liable for preventable underride deaths?”

Now, when I asked my son the question, he said, “I very specifically did not go to law school.” To which I replied, “But you are very wise.” And he countered with, “which is why I know better than to give legal advice.”

Likewise, I know better than to write a post trying to give legal advice. But what I can do is to try and get the attention of brokers and simply say: This is what’s going on. . . Trailer manufacturers have been successfully sued for preventable underride deaths. Trucking companies have been successfully sued for preventable underride deaths. Could brokers be the next ones on the hook for preventable underride deaths?

Could a plaintiff claim that a broker knew (or should have known) that choosing a carrier whose trucks were not equipped with adequate comprehensive underride protection was a known, unreasonable risk of catastrophic underride injuries and death?

The difference a well-designed rear underride guard can make (IIHS crash testing)
Underride Crash Tests – With & Without Side Guards (2023, Collision Safety Consulting)

Eric Hein, who lost his son Riley Hein in 2015 due to a side underride crash, has published an extensive cost benefit analysis of side underride, Cost-benefit   analysis   of   side   underride   guards   for   new semitrailers in the United States (Journal of Progress in Safety & Security, May 15, 2026) — documenting the cost effectiveness of side underride guards. According to Hein, in The Cost of Inaction: Million-Dollar Side Underride Cases, side underride crashes of passenger vehicles have repeatedly resulted in multi-million-dollar verdicts and settlements.

Here are some examples of publicly-reported successful underride lawsuits:

Side underride crashes also kill or seriously injure people walking and bicycling. They may be struck during a truck’s right turn, pulled under the trailer, or crushed by the semitrailer’s rear wheels. According to Hein, publicly reported cases include:

Hein further writes:

These hidden costs were not accounted for in NHTSA’s side underride cost-benefit analysis. They are not isolated incidents. They reflect a national pattern of catastrophic crashes, loss of life, and substantial legal exposure resulting from the absence of federal side underride protection requirements

Public verdicts and settlements understate litigation pressure. Many side underride cases end in confidential settlements, partial settlements, or quiet dismissals after payment. From 2019 to 2024, side-underride litigation likely involved dozens of lawsuits nationwide and roughly $100 million to $250 million.

A side underride guard plus aerodynamic skirt costs about $2,500 per trailer. A $30 million verdict would equip about 12,000 trailers with guards.

Side Underrride CBA Policy Brief

Side Underride Hidden Legal Costs

In reflecting on the recent SCOTUS decision, I was reminded of the advice which I heard in 2019 when I listened to a NTSB webinar, “Collision Avoidance Technologies – Why You Need Them in Your Trucks Today!” The presenter was Robert Maag, the VP of Operations for a small trucking company, Perfect Transportation. He had some wise advice for trucking companies related to investment in safety for a fleet:

Investment in the front end can be extremely minimal in proportion to

what could be at risk at the back end.

Then he asked, As a business owner or executive, what keeps you awake at night?

Maag PowerPoint Slide

From his perspective, investing in fleet safety is business commonsense. I couldn’t have said it better myself: Investing in underride protection (front, side, & rear) is in the best interest of the trucking industry — including brokers — and an appropriate cost of doing business.

Closing thought. . . could the U.S. implement a safety rating system — like that which exists in the U.K., the Fleet Operator Recognition Scheme (FORS)? This is a voluntary accreditation system which enables fleets to get recognition for taking action to set higher standards for safety, efficiency, environmental protection, and overall excellence in fleet operation. I talked to FORS representatives in 2016. I thought it then, and I still think it. . . maybe we should give it a try.

Let’s make truck crashes SURVIVABLE. Win/Win.

Maag PowerPoint Slide
Maag PowerPoint Slide

In case you’re interested, here’s the 2019 NTSB webinar presentation: