Quick ‘preventability’ determination can be costly

Doug Marcello
Crash
Photo: iStock

Your driver had an accident.  You determine that it was “preventable”. You file the determination away.  File closed.

Closed, that is, until a lawsuit is filed. The court may hold that you have admitted fault by finding the accident was “preventable” based upon your company’s definition of “preventable”.

You can protect your company. Make sure your definition of “preventable” is not written in a way that creates an admission of fault.

Write your determination in a way that will give the plaintiff pause. Establish a procedure that gives you the best argument that your process and conclusion is not “discoverable” in the suit.

And ultimately, in the most severe cases, defer a decision until after the trial or settlement. Absent these steps, you may find that you have a self-inflicted harm by a rush to determine “preventability” or failure to do so in a way that does not harm your company or driver.

Definition of ‘preventable’

Ensure that your definition of “preventable” is not tantamount to the definition of “negligence”.

“Negligence” is that someone did something that was not “reasonable under the circumstances” or failed to do something that was “reasonable under the circumstances”.

If your definition of “preventable” includes the “reasonableness” of the action or inaction of your driver, your determination runs the risk of being an admission of “negligence” by your driver.

Instead, align your definition with the definition in Section 385.3. That section states that a “preventable accident on the part of a motor carrier means an accident (1) that involved a commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver” (the emphasis is mine). It totally omits whether the “act” or “failure to act” was reasonable under the circumstances.

Was there something your driver did or could have done that resulted in the accident?  Even if the answer is “yes”, whether or not that act or omission was “reasonable under the circumstances” remains an open question.

Semantics?  Sure, but that is the nature of legal proceedings. And why not avoid losing a winnable case because of semantics.

Three steps

The way you determine “preventability” may expose you and your employees to depositions and your conclusion to discovery. While there is no absolute protection from this, you can minimize the possibility.

First, limit the involvement of individuals as much as possible. If your driver provides their version, orally or in writing, it may be discoverable.

Everyone involved in the process who read or heard that version could potentially be a witness in a lawsuit. And what is the chance that their testimony will be totally consistent?

Consider a streamlined system limiting the people involved and based on the information available such as the police report or the driver’s initial accident report.  Additionally, utilize the data resources such as ECM data, onboard cameras, and telematics.

Second, align your process as being for FMCSA purposes.  While a determination of “preventability” is not specifically required by FMCSA regulations, it is necessary to defend your accidents in either an audit or for purposes of hazmat permitting. The ATA Preventability Guide provides a framework that aligns with these purposes.

Following these procedures provides you the argument that your process and conclusion is not discoverable as it was part of a “critical self-analysis”. While this is not recognized by every jurisdiction, doing so gives you the argument in those that do.

Third, when writing your conclusion, include what the other driver did or failed to do.  Think about it — if your determination must be turned over and the plaintiff wants to use it against you, give them something to think about by including what they did or failed to do that caused the accident.

Want to present to the jury the preventability determination as to what our driver did?  To do so, you will have to present what is included as to your driver.

Delay your decision

In the most serious cases, do not make a “preventability” decision until after the case is done — by settlement or trial. If you are going to do this, be consistent. Apply this to all cases, whether the outcome is anticipated to be favorable or unfavorable.

By forgoing the “preventability” determination until after all the evidence is in, you are being fair to both your driver and the other party. It is not unusual for facts to come to light late in the case. Expert reports, analyzing the data and giving opinions as to the cause, are rarely completed until after all the discovery is completed so that they can have the benefits of all the facts.

Additionally, by waiting until after all the facts, and potentially after the trial, the issue of discoverability and admissibility is avoided. There is nothing to discover. There is nothing to admit.

Conclusion

Your “preventability” determination can be costly to your company if not done in a way that avoids an admission of fault, maximizes protection from discovery, and is arguably protected by privilege.  Review your definition and your process.

It is tough enough for trucking companies in this litigious world. The last thing you need is a self-inflicted wound that could have been avoided.

 

Doug Marcello

Doug Marcello is a transportation attorney who has earned his CDL. His law practices focuses upon serving the trucking industry. Based in Central Pennsylvania, he has represented trucking companies in cases throughout the US, having been specially admitted in 35 states. He is a frequent speaker at industry events and driver safety meetings. He has also written numerous articles concerning issues confronting the industry and has produced several DVDs relating to accident response and aggressive defense of claims.

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