Prepare to respond to accident and cargo claims

Kim E. Stoll

Accidents can happen and cargo claims are likely inevitable, but what can your company and drivers do after an incident?

Depending on the extent of the collision, a rapid response may be necessary because the related data is volatile and will expire or degrade over time. Site evidence wears away, vehicles or other physical evidence disappears, electronic data can be overwritten or lost.

So, the driver will play a key role in collecting information at the scene.

legal gavel
(Illustration: istock)

If the driver is compromised because of an injury, then medical help is the primary focus. Otherwise, they should call in to dispatch and immediately report the incident. In turn, the company should assemble a proactive team and immediately contact their trusted insurance broker to report the claim.

At this point the insurer’s rapid response team will be engaged. If appropriate, field investigators will be assigned, depending on the extent of the collision. Drivers who are able can use their cellphones to document the scene with photos and videos, and provide files to their company.

Gathering evidence

Drivers should make a note of the exact location of the accident, weather, temperature, time, driving conditions, direction, speed, available witnesses, and the licence plate numbers of any witnesses or involved vehicles – including those that appear to be leaving the area before police arrive. If the driver’s own vehicle must be moved, they should note how and where it was moved, and who moved it.

Then it’s a matter of assembling carriage documents, and making copies as close as possible to the date of the collision.

Time-sensitive drug and alcohol testing must be undertaken as required. In-person interviews may also be necessary, depending on company protocols, although insurance company investigators may undertake this as well.

Other sources of evidence will be gathered by insurers and lawyers, including: CCTV recordings, accident reconstruction reports, fire marshal and fire department records, police files, site-specific information such as road design and construction, aerial photographs, and details about any product-related inspection or investigation. The police will gather physical evidence and details around tire marks and skid marks, gouges, scratches, scrapes, ruts, furrows, glass and debris.

Drivers at the scene

Police, meanwhile, have the authority to interview all witnesses and deal with evidence.

While drivers must speak to police at the scene, they should only speak about the facts around what happened. Statements can be given after any required medical help is provided. And depending on the situation, drivers may want a lawyer before providing a statement. They should certainly be trained on what information should or shouldn’t be provided. This means not taking responsibility or making any conclusions about fault. Such admissions may cause issues with insurance coverage.

Insurers, meanwhile, will appoint experts such as engineers and lawyers as necessary. If there is no responding insurance, hire lawyers early.

If there are charges against the driver or the company, legal representatives must also be quickly appointed. As a first step, find out if the insurer will cover the cost of defence lawyers. If there is no coverage under the insurance policy, the company must decide if it will provide legal representation for the driver — and clearly describe this in a letter. Often, the same lawyer hired by the company will defend the driver and the business when it comes to regulatory charges.

It is important to maintain a relationship with the driver if they leave their employment, too. Lawsuits can begin after accidents or cargo claims.

Meanwhile, assemble documents to respond to any police, insurance investigators, or lawyers involved in a lawsuit. Many of these documents will be found in a driver’s file, including details about qualifications and history; Hours of Service records; inspection, repair and maintenance records; and roadside inspection records. Information regarding the tractor’s onboard data systems — including what can be accessed and for how long — is also important.

Cargo claims

When there is an issue with the carriage of goods, the actions taken after a loss can also help limit damages. Here are some important steps to follow after an issue occurs:

  • Identify the cargo involved, and determine who was responsible for loading and what instructions were provided.
  • Assemble carriage documentation including photos and the driver’s file.
  • Identify all potential claimants and potentially responsible parties including motor carriers, brokers, contractors, owner-operators, and individuals.
  • Determine the type of electronic data that exists onboard the tractor and trailer, and what data to download and maintain from various sources including electronic control modules, dashcams, GPS or wireless communications devices, and temperature recorders.

Insurance policies

After an incident happens, locate the company’s insurance policy to know what is covered, the amount of any deductible, and whether some or all of the unpaid earned freight charges can be recovered.

Remember that some insurance policies will also cover the cost of media consultants if the incident is reported by media sources. If a lawsuit commences, the policy will also list how much money is available to pay damages, and whether defence costs are covered.

However, it is important to know what is covered before there is a problem. Take time to speak with your trusted insurance broker and lawyers to ensure you are protected and that you have the right coverage for your business.

— This article is intended for information purposes only and does not constitute legal advice. For additional information or assistance, please feel free to contact the author at kim@fhllp.ca.

Kim E. Stoll

Kim E. Stoll is a partner with Fernandes Hearn LLP in Toronto, and can be reached at 416-203-9509, or by emailing kim@fhllp.ca. This article is intended for information purposes only and does not constitute legal advice.

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