Mileage Lawsuit Involving Swift Transportation May Proceed as Class Action, Judge Rules

This story appears in the Nov. 15 print edition of Transport Topics.

A lawsuit in Phoenix involving truckload carrier Swift Transportation Co. and mileage calculations reignites the topic of how carriers, shippers and drivers compute distance driven and then bill for it.

Arizona Superior Court Judge J. Richard Gama ruled Nov. 4 that a lawsuit filed by a former Swift owner-operator, Leonel Garza, against Swift can proceed as a class-action civil case, although the court did not rule on the merits of the complaint. Garza contended that he wasn’t paid for all the miles he drove.

The lawsuit’s central issue is whether drivers should be paid on the actual miles they drive in making a delivery or a standard agreed upon in advance between shippers and carriers.

“We’ve heard from numerous Swift drivers that the company’s mileage calculation method cheats them out of honest and hard-earned compensation,” Rob Carey of Seattle law firm Hagens Berman Sobol Shapiro said in a prepared statement. “These drivers deserve their day in court, and now they’ll get it.”

Swift Vice President David Berry said the carrier does not comment on litigation in progress but that “our plan is to appeal the decision.”

A Hagens Berman lawyer said the class-action status — if upheld after Swift’s appeal — could affect 20,000 to 30,000 drivers, with Garza as the lead plaintiff. Attorney Amy Wilkins of the firm’s Phoenix office said the lawsuit applies to company drivers since January 2003 and owner-operators since January 1998, if they were paid by mileage.

The case has been in progress since 2004. During an earlier discovery phase, a former Swift dispatcher said the program Swift used at the time underestimated actual mileage by 6% to 10%, plaintiff lawyers said.

Wilkins said another round of discovery — a pretrial procedure to force the disclosure of relevant facts in the case — will have to establish how the Phoenix-based carrier currently calculates and pays for mileage because it may have changed since 2002.

The Arizona Supreme Court, the state’s high court, heard part of the lawsuit in 2009 but sent the case back to a trial court for further consideration after ruling on a procedural issue.

A case summary from the Arizona Supreme Court said Garza was told that Swift would pay him based on “dispatched miles” from company dispatchers rather than actual miles driven.

The case summary also said that an unspecified number of other drivers had filed similar actions arguing “breach of the implied good faith and fair dealing covenant” by Swift.

As described by two industry vendors of mapping technology, mileage calculations have evolved from using an arbitrary point approximating the center of a city or ZIP code when household goods manuals were first assembled, to distances backed by the Global Positioning System that are supposed to be within three meters of distances measured by an accurate odometer connected to a wheel hub.

Software programs by companies such as Rand McNally, ALK Technologies and Navteq North America can offer routing suggestions based on tolls, speed limits, hazardous materials restrictions, whether a road allows heavy trucks and even construction status. However, a driver might diverge from that suggestion because of time-of-day traffic problems or a personal preference.

“A driver may prefer another route than the one given by dispatch, perhaps because of time-of-day considerations or a customer’s requirements,” said Rand McNally spokeswoman Amy Krouse.

Aside from the company’s printed road atlases, Krouse said, Rand McNally has provided computer-based navigation assistance with its MileMaker program since the 1980s and with IntelliRoute since the 1990s.

Krouse said Rand McNally sells navigation software to 97 members of the Transport Topics 100 list of the largest U.S. and Canadian for-hire carriers and that shippers and private fleets also use navigation software for computing mileage.

Practical mileage is not necessarily the shortest route between two points but rather an estimate of the quickest, most practical route that allows for truck traffic.

“Many motor carriers recruit drivers by advertising ‘we pay practical miles.’ This is a win-win for carriers and drivers because the miles are more realistic than ‘shortest’ miles, and they are easier to audit than hub miles,” said Mark Hornung, senior vice president of operations for ALK Technologies.

ALK’s PC Miler system performs this and other functions.

Swift, which ranks No. 10 on the for-hire TT 100 and the second-largest truckload carrier on the list, has had some victories in the lawsuit before.

An earlier ruling in trial court denied the request from plaintiff’s lawyers for class-action status.

The Arizona Court of Appeals disagreed with the trial court and granted the motion for a class action, but the state Supreme Court overturned the appellate court on procedural grounds in August 2009. That decision sent the case to Judge Gama’s trial court.