KELOWNA, B.C. – Dealing with a lawsuit can be one of the most difficult and devastating events a person or business will ever have to overcome.
Catastrophic motor vehicle collisions happen every day, and despite their level of driving expertise, those in the trucking industry are not immune to being involved in a fatal accident.
Bradford G. Hughes, a partner with Selman Breitman, LLP, a litigation law firm with offices in California, Nevada, Oregon and Washington, addressed this very issue during the British Columbia Trucking Association’s (BCTA) annual AGM Meeting and Management Conference in Kelowna, BC June 11, saying it was essential for trucking companies to be ready in the event one of their drivers is involved in a catastrophic accident.
“You need to have a protocol, a plan in place, if there’s an accident,” Hughes said, adding that companies must plan for the worst. “I have yet to see a company big or small that does it perfectly, so don’t feel you have to.”
Hughes emphasized the fact that ‘lawsuits are not driven by fault,’ but rather by the potential for recovery of monetary damages, and said whether or not a business is to blame for a particular incident, whether it be a collision or environmental disaster, such as a fuel or oil spill, the response must be the same, as in many California jurisdictions, even if a company is determined to be 1% at fault, they could be liable for 100% of the damages.
Hughes said many in the trucking industry have the minimum when it comes to liability insurance, which could be devastating from a business standpoint if a company is found to be accountable for damages after a collision.
Hughes said trucking companies must ensure several steps are completed in the event of an accident, starting with a first report, which means getting to the scene of the collision as soon as possible and contacting your insurance carrier so they can also get to the location.
Assigning a reliable supervisor to the accident scene is also key, as your insurance company may choose to retain local counsel, a field investigator or accident reconstruction expert.
Hughes said the accident reconstruction expert is “The scientist behind the accident,” and that “Speed matters, and distance and time matters.”
Trucking companies must also manage their drivers when they are involved in a collision.
Drivers must be encouraged to provide information about the accident without any fear of the ‘blame game,’ Hughes said. He added that in a perfect world, drivers would not be permitted to make a formal statement on the collision, including investigators, without local counsel being present.
Hughes said when a driver is involved in an accident, they must remain calm, stop their vehicle and keep it in one place, secure the scene, call 911, get information from any witnesses, notify their company of the incident and take photos of the scene.
Hughes also said a drug and alcohol test should be administered, and that in the US, this is standard protocol, but in Canada, the government has not yet implemented legislation requiring a test for transportation workers.
“Drug and alcohol test your drivers as soon as you possibly can,” Hughes said. “I don’t care if it’s the next day.”
Hughes added that drivers should work with law enforcement as best as they can throughout the event.
“Don’t become a nuisance to the police,” he said. “Don’t harm an already bad situation.”
Media management was also important, Hughes said, including monitoring a driver’s social media actions.
He said companies must have a social media policy for drivers, and advised that they not talk to the media, as more often than not, it only makes them look ‘terrible.’
Actions a company takes following a catastrophic collision can also have a lasting effect on the business, adding costs to the original claim.
Hughes said a conflict could arise shortly after an accident, in that a trucking company looks to get the vehicle involved in the incident back on the road, leading to what is called evident spoliation, which is when a company or individual is accused of spoiling evidence by repairing the truck to hide evidence of guilt.
Hughes said a truck involved in a collision is normally preserved in its post-accident state until the other party has been given a fair opportunity to inspect and photograph the equipment.
“You have to make sure that the people who are supposed to be doing this stuff get it done,” he said.
In the event that an owner-operator is involved in such an incident, preserving evidence could become more difficult. Hughes said cooperation between with owner-operator and leasing company is important, and contacting the insurance carrier immediately is vital.
Maintaining a Canadian driver file and a personal file is important, said Hughes, but it is equally important to keep those files separate.
Finally, Hughes said trucking companies must show that they are concerned and sympathize with the catastrophic accident, but must do so properly based on the situation, and that simply saying ‘we did nothing wrong’ is not the way to go.
Hughes said he hoped his presentation would give attendees a wake up call and provide them with a few ways to save some money and better deal with catastrophic incidents.
He said business owners should sit down with their safety directors and go over what steps the company would take in the event of a devastating collision or environmental incident.
“The theme of the day,” Hughes said, “is that you don’t know how bad it can get until it’s too late.”
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