NIGHTMARE: Accidents happen, and when they happen to a trucker he or she is usually not at fault. But that hasn't stopped lawyers from successfully winning civil lawsuits against truck drivers and their employers. Mark Weaver of J.J. Keller says there are steps you can take to ensure this doesn't happen to you.
LAS VEGAS, Nev. – It’s no secret that running in the U.S. is risky business. Money-hungry lawyers are eager to feast on motor vehicle carriers.
If you need further evidence, consider this statistic. In the U.S., the plaintiff wins 53 per cent of personal injury lawsuits.
When the defendant is a motor vehicle carrier, however, the plaintiff wins more than 80 per cent of the time.
Lawyers have picked up on this and there are now attorneys who specialize in suing commercial carriers.
Mark Weaver, a safety consultant with J.J. Keller, says these lawyers have become very well versed in the rules that regulate the trucking industry and they are capable of putting your fleet out of business.
“Attorneys are starting to understand motor carrier law and they’re starting to see avenues of opportunity,” Weaver recently said at the American Trucking Associations’ annual management conference in Las Vegas.
He was there to share some pointers on how carriers can protect themselves and reduce their vulnerability in the event of an accident.
There are three main areas of motor carrier liability that fleets must be aware of, Weaver said. They include regulatory liability, third-party liability and employee liability.
The best way to protect yourself from regulatory liability is ensure your company and your drivers are always in compliance, Weaver advised.
“If you’re always in compliance you don’t have to scramble when that phone rings,” he said.
Weaver pointed out the regulations are there to protect drivers and enforcement agencies are becoming more vigilant in punishing offenders.
“Some teeth are starting to be put into these regulations,” he said.
As a case in point, he shared a story of a U.S.-based carrier that didn’t require its drivers to follow hours of service regulations.
The company was investigated following a serious accident and two company officials were sentenced to six months in jail, followed by six months of house arrest, huge fines and to boot they were forbidden to work in the trucking industry for three years.
Weaver said turning a blind eye to violations is the worst thing a carrier can do, and management will share the blame if a non-compliant trucker gets in an accident. If a company knows a driver hasn’t been adhering to the regulations, Weaver said that company must take action.
“When you find a violation on a log, discuss it with the driver and retrain the driver,” he suggested. The carrier should then have a progressive discipline system where that driver receives more serious repercussions for each subsequent violation.
Be sure to record the actions the company has taken so you have something to show enforcement officers or your attorney if the unthinkable should happen.
“At least you’ve got more of a leg to stand on (if there’s an accident) as long as it’s consistently applied,” Weaver said. “You can’t just put the blinders on and let it go.”
Weaver went on to say lawyers will have a field day if your company employs unqualified drivers. Even if the driver is safe, compliant and careful, if it can be argued they were not qualified to do the work they were doing then you are very vulnerable in the event of an accident.
Third-party liability is a huge concern when a truck driver is involved in an accident involving another vehicle.
The trucker doesn’t even have to be at fault for the carrier to get sued in the U.S.
The attorneys investigated the trucker and found that he conducted a three-hour bass-fishing seminar while he was off-duty. Because he was compensated for it, they considered it working time and when that was taken into account he had exceeded his maximum allowable working hours by 15 minutes for that week.
The carrier and driver were both successfully sued even though they believed they were fully compliant and weren’t at fault for the accident.
“Public perception is working against us,” said Weaver, adding jurors are members of the public and many have an inherent fear of commercial vehicles.
Weaver also pointed out the truck driver is only responsible for about 30 per cent of the accidents involving commercial vehicles. But of that 30 per cent, about 80 per cent of the at-fault accidents can be attributed to internal safety management control issues.
Employee liability refers to accidents that occur to employees while on the job.
Over the past 10 years professional drivers have experienced more injuries requiring time off work than any other profession. They have also racked up the highest median time off work – 10 days.
The cost of this includes reduced productivity, higher insurance premiums, increased turnover, driver replacement costs, medical expenses and damage to your company’s image.
Weaver said while it’s easy to calculate the cost of an accident when it comes to equipment, the physical damage only accounts for a fraction of the cost.
There are other expenses incurred as well when an employee gets hurt on the job.
How to protect your company
While no company is immune to a lawsuit, there are steps they can take to protect themselves.
“There’s no such thing as total liability protection but you can establish various levels of liability insulation,” Weaver explained.
To start with, carriers should analyze their safety culture and identify problem areas.
Weaver encouraged fleet managers to include their drivers in this process.
Next, management must set goals. Weaver warns against setting unrealistic targets such as eliminating all accidents.
“You must set achievable, attainable and realistic goals,” he pointed out.
Then carriers should measure everything and periodically “review, evaluate and adjust.”
If you’re a safety manager worried that your boss will frown upon any expenses this process involves, arm yourself with this fact. An Executive Survey of Workplace Safety conducted by the Liberty Mutual Group found that 95 per cent of business executives found safety programs have had a positive impact on their bottom line.
The same survey suggested the typical return on investment for safety programs was $3 for every $1 spent (and that’s US money!)
“Money spent on safety must be viewed as an investment – not as an expense,” stressed Weaver. “An effective program will pay for itself.”