The steps you take following a catastrophic accident may mean the difference between successfully defending a lawsuit and paying out millions.
Editor’s note: This is the fifth article in CCJ‘s The Cost of Risk series. The final installment addresses electronic data and the risks in failing to preserve it.
It’s your worst nightmare. One of your trucks is involved in an accident that results in the death or serious long-term injury of one or more third parties. The human tragedy is horrible enough, but you also must face a sobering reality: Your company’s very existence may be in doubt.
The insurance crisis has pushed many motor carriers to self-insure or to sharply reduce excess liability coverage, exposing them more to high-dollar judgments. And with the sharp rise in deductibles and self-insured retentions, even routine claims arising from a catastrophic accident can wreck a carrier’s financial position. Plus, an increase in punitive damage awards in trucking accident lawsuits has led most insurers to exclude coverage for them.
In some cases, a carrier’s legal fate may already be sealed by the time it learns of a catastrophic accident. Failing to ensure that a driver meets Department of Transportation minimum qualification standards – or even the carrier’s own higher standards – can sink a court defense. The same is true for failing to conduct and document driver training, especially to remedy a driver’s demonstrated shortcomings.
But errors committed during the first few hours following a catastrophic accident often are the most damaging. Key physical evidence may be lost or destroyed, and your driver may say or do things that place your company in a bad light. You also need to establish a relationship with key parties, such as investigating officers and even injured persons. To reduce your chances of a company-breaking judgment, prepare to respond at a moment’s notice.
Preparing for the worst
If the first time you consider your response to a catastrophic accident is the moment you receive that phone call, you are in serious trouble. “There needs to be a game plan,” says Mike Connelly, chief safety officer of Williamsport, Md.-based D.M. Bowman. For Connelly, that means laying out policies and procedures in an emergency response guidebook and training everyone – drivers, safety managers and even the vendors that would be involved.
Another critical step in preparing for an accident is building a vendor list – field adjusters, attorneys, accident reconstructionists and tow truck companies – throughout your service area. After all, most catastrophic accidents won’t occur in your hometown. “If you are searching for an adjuster at 4 a.m., you won’t find one until 10 a.m.,” says attorney John Pion, a partner in the firm Dickie, McCamey & Chilcote.
The best way to build the list is through networking, Connelly says. “Ask for references from anybody in the industry that you respect. Don’t hesitate to call competitors.” If the company is entering a new region, Connelly will contact companies in the area that he knows to be safe operators.
In the event D.M. Bowman has an accident in an area where it has no vendors lined up, Connelly calls the carrier’s insurance company to set up an adjuster. But Connelly clearly prefers choosing the adjuster himself. “We bear such a large SIR that we are going to have the say so.”
An alternate approach is to contract with a company specializing in mobilizing adjusters to the scene of a loss. For example, Gaston, S.C.-based G & P Trucking has an arrangement with Custard Insurance Adjusters to provide on-call adjusters 24 hours a day, says Ben Harman, the carrier’s director of safety. Harman, who hasn’t experienced a catastrophic accident in his three years at G & P Trucking, would also head to the scene.
Any plan for responding to a catastrophic accident should outline the process for handling that first telephone call. It’s standard practice at many carriers to have someone on call 24/7 specifically for this purpose. D.M. Bowman, for example, uses a toll-free number dedicated solely to accident reporting. Drivers have that number on a wallet-sized card. Accident calls go to the safety department during work hours and are forwarded after hours directly to the cell phone of the safety supervisor on call.
The process is similar at C.R. England, where a safety manager is on call 24 hours a day with an emergency cell phone number, says Gordon Lambert, vice president of safety. The on-call safety manager keeps a briefcase that includes all the key information on the procedures for responding and the names and phone numbers of key people. Many large carriers, like C.R. England, are self-insured and handle claims internally. Once the decision is made that an accident is catastrophic, the company’s senior claims adjuster heads to the scene immediately, Lambert says.
At many carriers, however, the dispatcher is the first point of contact, says Keith Dunlap, president of third-party motor carrier claims administration firm NTA Inc. Because it’s not their main job and because serious accidents are fairly infrequent events, dispatchers should keep a checklist handy to guide them through the information to receive from and give to the driver, Dunlap says. (For Dunlap’s suggested checklist, see “Handling the call,” page 29.)
Most important, the dispatcher or whoever takes that first call must understand the urgency, says attorney Pion. “He has to know that waking up the vice president of safety at 2 a.m. is OK.”
In training and preparation, don’t overlook the most important person of all – the driver. The first time a driver learns how to respond to a catastrophic accident should not be in the aftermath of one.
Many carriers cover accident response during driver orientation, but Pion recommends training drivers on that topic at a time when they aren’t so overloaded with information. He suggests covering the subject in annual or semi-annual safety seminars. How to respond to an accident should go hand in hand with a defensive driving course, he says. Cover the basic dos and don’ts for drivers, and explain the cost of litigation. “Most drivers don’t appreciate why companies fear these accidents so much,” Pion says.
C.R. England covers accident response in its orientation, but it also reinforces the message, says Lambert. For example, the company periodically sends out reminders through the in-cab messaging system, he says.
Scrambling into action
When you receive the dreaded telephone call, your first step is to determine if it is truly a catastrophic accident. Does the potential liability justify waking up field adjusters, attorneys and accident reconstructionists? Does a company representative need to rush to the scene?
“The first thing we do is ask a series of questions of our driver,” says D.M. Bowman’s Connelly, noting that questions serve to calm and focus the driver as well as to obtain information. The questions address the well-being of the driver and other parties, whether emergency services have been called, whether the scene has been secured with flares or triangles, the condition of the truck and cargo, the exact location and so on. At this stage, the most important information is whether there are serious injuries or fatalities, spillage of a potentially hazardous cargo or some other circumstance that could lead to a major lawsuit.
“If we get a call and the driver has only a few minutes, our adjuster is very good at digging to at least give us a feel,” Lambert says. Often, the adjuster will try to talk to the investigating officer as well if the driver is unsure about key information, he says.
Some situations are clear cut. If there’s only property damage, for example, you likely will send no one to the accident scene. If there are one or more fatalities, treat it as catastrophic.
But then there are gray areas. Some carriers might use as their threshold the fact that an ambulance carried someone from the scene. But those injuries can be minor. Sometimes people are taken to the hospital just for observation. Treat as catastrophic accidents involving death, brain injury, broken bones or an unconscious or incapacitated person, says attorney Michael Langford, a partner with Scopelitis, Garvin, Light & Hanson.
At C.R. England, the adjuster tries to determine whether there have been head, brain or back injuries or something else that could be permanently debilitating, Lambert says.
But most carriers and attorneys agree: If it’s a close call, spend the money to get the adjuster and attorney to the scene promptly. If you realize later that the situation was a little worse than you thought and a lawsuit is likely, it’s too late to take control of the scene. “Companies that are reluctant to have attorneys involved immediately are making a mistake,” says Connelly.
Also, in most cases, a company representative should head to the scene to oversee the response, work with the adjuster, ensure the driver gets the post-accident drug and alcohol test, transport and make other arrangements for the driver, visit injured parties and be the public face of your company. “You want someone other than the driver acting as the contact with the news media,” Pion says.
Coaching the driver
One of the major reasons for having a company official on the scene is damage control. Actions taken after the accident, especially by the driver, can hurt you as much as the accident itself.
“The driver can be a loose cannon,” Lambert says.
Begin coaching the driver in that first telephone call. He may be too shaken to remember his accident response training, and until a company representative arrives on the scene, he holds your fate in his hands.
In the immediate aftermath of an accident, have the driver determine the condition of other parties and provide assistance. If he has a cell phone, the first call should be to 911. He also should put out triangles or flares.
Encourage the driver to cooperate with law enforcement by answering questions of fact. There’s at least one exception, however. “If the driver believes that there are criminal sanctions possible because of his conduct, he should avail himself of his Fifth Amendment rights and talk to no one,” says attorney Pion. Those factors might include driving at speeds in excess of 90 mph, running far over hours-of-service limits or driving under the influence of drugs or alcohol.
The driver should not claim any responsibility for the accident or speculate on its causes. He should talk only to the police and the attorney. And regardless of how much your driver thinks another driver is in the wrong, he shouldn’t get into a verbal battle, Connelly says. Even if the other party starts the debate, drivers should not engage, says attorney Pion. “It’s not what you want to portray as a professional driver.”
Experts recommend that drivers not prepare a written statement for the carrier. “The only thing the driver should be saying to the motor carrier is where, when and who,” Langford says. Anything beyond that should be said to the attorney so that it will be privileged.
NTA’s Dunlap agrees. “A written statement is not a good idea in severe accidents. Many times what the driver writes down is adverse to the motor carrier and is discoverable.”
Gathering the facts
Given your driver’s emotional state, avoid asking him to act as a fill-in adjuster. “Anyone in that particular situation doesn’t have a clear mind,” says G & P Trucking’s Harman. “Let someone in that profession take control.”
Taking photographs may be the exception. Accident scenes are highly perishable, and your driver may be the only company representative on the scene for a couple of hours. Some motor carriers even supply disposable cameras for this purpose.
“We do want them taking photographs – but only of the scene and not of injured parties,” says C.R. England’s Lambert. Company officials instruct drivers on what shots to take in advance and by cell phone at the scene, if possible.
C.R. England may be in the minority, however. While attorneys and carrier executives generally think it’s OK for drivers to photograph fender-benders, many don’t think it’s a good idea in this situation. “In catastrophic losses, it’s dangerous to have drivers taking photographs,” Pion says. “They can’t really think very clearly about what they should be doing.”
“Forget about what they may or may not take a picture of,” says attorney Clay Porter, a partner in the firm Dennis, Corry, Porter & Smith. “It just looks awful. Somebody might be bleeding to death, and the driver is out taking pictures of skid marks.”
Photographs taken by your adjuster or accident reconstructionist, however, are vital. “The value of photography cannot be overstated,” says Steven Rickard, who heads accident investigation firm Steven W. Rickard & Associates. Photos of tire marks are critical, he says. Photographs of all involved vehicles from all sides and corners are important as well.
An experienced accident investigator will find clues that lack meaning for anyone else, so it’s critical to get an investigator to the scene immediately. You don’t want evidence lost out of ignorance. As an example of how delicate the scene is, an investigator can sometimes determine the direction of impact just by examining the filament in a broken headlight, Rickard says.
The potential for losing evidence makes it vital to secure the truck, trailer and contents. “Get control of that equipment as soon as possible,” advises attorney Porter. Police may impound your truck, but they don’t have impound lots that can accommodate a tractor-trailer, he says. Instead, the truck probably will go to the wrecker’s lot. “If you don’t feel it’s secure, you need to deal with the state trooper and make it secure.”
Generally speaking, you want a record of anything at the scene that’s readily observable. But do you want to preserve electronic information, such as data from the truck’s electronic control module, satellite-tracking system or other trip recorder?
To answer that question you must balance the fear of data incriminating your company or being misused by a plaintiff against the risk of a jury concluding that you must be hiding something because you didn’t preserve data. “That is a burning issue – maybe the burning issue – in the industry right now as it relates to liability for large losses,” says Porter. Next month’s final installment in CCJ’s The Cost of Risk series will address that debate in depth.
Keeping channels open
Not everything in accident response boils down to procedures and facts. There’s a human element to containing the fallout. For D.M. Bowman’s Connelly, one of the highest priorities in responding to a catastrophic accident is to keep the lines of communication open.
“It’s not about measuring skid marks,” Connelly says. “It’s about protecting relationships with the driver and opening relationships with others involved.”
The better relationship a carrier has with the investigating officer, the better off it will be in the long run, Connelly says. If the driver takes a stance of not talking to police until an attorney arrives, that sets an adversarial tone. “In many cases, the police officer will assume the driver is trying to hide something,” Connelly says.
A good relationship with the police is also helpful if the investigating officer made errors on the police report that could damage your defense. “Accident reports sometimes are written erroneously, and people are misquoted,” Connelly says. “Simply assuming they are accurate is dangerous.” If you maintained cordial communication you may find it easier to persuade authorities to review and correct those problems.
Porter recommends that carriers develop a list of ex-state troopers who can serve as consultants for the motor carrier with state and local authorities. Former troopers can help a carrier cut through red tape and determine how to get things done, he says.
Communication with injured parties or families is a closer call. The conventional wisdom once was to avoid contact with injured third parties, says attorney Langford. The fear was that expressing concern might signal that your company thinks there’s a liability and that there might be easy money. If the company avoided contact, perhaps the injured party wouldn’t realize it had a right to sue. “Maybe that was true 40 years ago, but it’s not true in 2003,” he says.
Today “empathetic adjusting” is more common, Langford says. If there’s potential liability, establishing a relationship may even lead to a settlement where the family doesn’t seek counsel. But if not, at least you are making in-roads that could provide goodwill at a later date, Langford says.
Connelly believes it’s vital to open communications with injured parties or families of deceased parties. “It is very difficult to bring yourself to meet with a family of someone who has been killed or seriously injured,” he acknowledges. But that gesture may enable you to settle a claim quickly.
One of the responsibilities of C.R. England’s in-house claims adjuster is to meet with the injured parties or families following a catastrophic accident, regardless of who was at fault, and express concern about their welfare, says Lambert. “If you can establish some sort of relationship or rapport, it can go a long way.”
Finally, the relationship with the driver may be the trickiest one of all. There’s a good chance that the accident will cost him his job, and he knows it. Temper the desire to keep him calm and cooperative with the need to protect yourself from a future hostile or non-cooperative witness.
Langford recommends letting a few hours or a day pass and then taking the driver’s statement under oath in the presence of a court reporter. “If he is later terminated, I have that statement under oath,” which serves two purposes if the driver later becomes a non-cooperative witness, Langford says. Since the driver knows you have his original statement, he likely won’t contradict you. But if he does testify against you, you can undermine that testimony with his original statement.
Another worry is how to deal with the driver who may or may not have been at fault. If you terminate him, you may lose his cooperation and goodwill if the accident goes into litigation. But letting him drive carries potentially bigger risks. If he is involved in another catastrophic accident, you might face a lawsuit on the grounds of negligent retention. One approach to this problem is to automatically suspend the driver following a catastrophic accident pending a determination of preventability. And you must decide whether you want to determine preventability if you expect litigation.
There is no end to the legal complications you face in dealing with a catastrophic accident. In the end, some of the choices you make in responding are not as important as acting as quickly as possible. Notes Connelly, “Those first few hours can mean more than 10 times those hours after the fact.”
Handling the call
Dispatchers often are the carrier’s first point of contact with a driver following a catastrophic accident. NTA Inc., a third-party claims administration firm specializing in motor carrier accidents, developed the following post-accident checklist for dispatchers and other personnel who might take the call and need guidance on what information to obtain and convey.
Obtain the following information from the driver:
Give the following instructions to the driver:
After speaking with the driver, immediately make the following telephone calls:
Report the accident to the local police or sheriff:
Report the accident to emergency response officials if there has been a release of a hazardous material:
Call the designated safety or risk management person within the company, regardless of the hour. Provide all information obtained to that person.
Driver dos and don’ts
Assist injured parties.
Secure the scene with flares or triangles.
Call the motor carrier.
Cooperate with police officers.
Express anger at other parties.
Talk to anyone other than the investigating police officer and the attorney.
Admit fault or speculate on causes.
Prepare a written statement on the crash.
Shedding light on police reports
Are drivers unfairly cited in nighttime accidents?
Even if your driver is obeying posted speed limits, the investigating police officer at the accident scene may record that he was driving too fast for conditions or was driving carelessly. This is a common catch-all citation when a large truck collides with the rear of another vehicle at night, says Steven Rickard, president of accident investigation firm Steven W. Rickard & Associates. But given the consequences for your defense in a catastrophic accident, you shouldn’t let a finding of too fast for conditions or careless driving go unchallenged.
The problem is illumination, Rickard says. “A driver can’t stop or anticipate something he can’t see.” The effective low beam of a head lamp is about 175 feet, and high beams are about twice that, Rickard says. But a passenger vehicle traveling on a dry road at night needs 336 feet to perceive, react and brake to a stop. That rises to 385 on a wet road surface, he says. The driver of a tractor-trailer needs 454 feet to brake to a stop at night and 543 feet on a wet road. So the stopping distances for both types of vehicles are well beyond the effective low beam and most high beams, Rickard says.
A police officer might respond that drivers should be aware of these limitations and adjust speeds accordingly. But Rickard suggests that this advice often is unrealistic, even for passenger vehicles. He says that for an automobile to stop within the low beam of its headlights on a wet surface, it would need to be traveling at no more than 32 mph.