Been in an accident?; Developing a claims response protocol
November 2, 2007
TORONTO, Ont. - It's no secret that trucking companies have been identified as lucrative targets for personal injury lawyers, particularly in the US where $30 million rewards have occurred. But are Ca...
TORONTO, Ont. – It’s no secret that trucking companies have been identified as lucrative targets for personal injury lawyers, particularly in the US where $30 million rewards have occurred. But are Canadian carriers that operate domestically immune to astronomical lawsuits such as those that have been witnessed south of the border?
“I think, to some extent they’re already here,” Will Mandau, vice-president of claims with Markel Insurance Company, said at a recent Let’s Talk seminar on the best outcomes from claims and losses. “Generally, we all recognize whatever is in the US does come up to Canada. We do have pretty significant rewards in Canada, just not the frequency as in the US.”
Unfortunately, that frequency could be on the rise if experiences in the US are a hint of what’s to come.
Robert Burke, an attorney with Chicago-based law firm Johnson & Bell, advised Canadian carriers operating in the US to carry $50 million in liability insurance to protect themselves from litigation that could arise following a wreck. In many cases, truck firms are being sued long after a seemingly harmless accident has taken place and the rewards for injured plaintiffs have been staggering.
If you’re involved in an accident in the US, Burke suggested contacting a lawyer with trucking expertise in the jurisdiction where the accident took place.
“It’s very important that a local attorney in the state where the accident took place be retained,” he said. “Even if it’s a federal case, the federal court is going to apply the state rules so you need someone who’s familiar with the local rules.”
Trucking companies should contact an attorney immediately following an accident involving serious injury or loss of life, Burke said. Ideally, the attorney will be able to visit the scene within 48 hours, so they can begin their own investigation.
“The attorney is going to shepherd the case through the legal system, so he needs to know the facts early on to develop a defense case,” explained Burke.
Attorney-client privilege is another benefit of contacting a lawyer as quickly as possible. This concept protects any information a driver or fleet manager shares with their attorney from being used against them in court.
In many cases, the attorney will hire a reconstructionist to visit the scene of the accident and conduct an independent investigation.
“Evidence disappears very quickly at accident scenes,” Burke pointed out.
Relying on local law enforcement officers to reconstruct the accident is a common mistake that should be avoided, according to Terry Lolacher of Edmonton-based accident reconstruction firm Renneberg-Walker Engineering. He pointed out only about 48 Canadian police officers are fully-trained in accident reconstruction.
“There are not a lot of uniformed members out there who are trained,” he said, adding it’s rare for police departments to dispatch their reconstruction experts to a non-fatal accident scene. Further complicating matters is the fact Canadian law enforcement agencies such as the RCMP often withhold their findings for 20 years, leaving a carrier without access to important data.
“The police are notoriously poor estimators and reporters and there are many assumptions that can be made based on bad data,” cautioned Burke.
In some cases, Lolacher said his company has seen liability decisions flip 100% when an independent accident reconstruction team has followed up a police investigation with its own reconstruction. (To find a qualified reconstruction firm near the accident scene, you can visit the Accreditation Commission for Traffic Accident Reconstruction’s Web site at www.actar.org)
The actions a driver takes immediately after being involved in a major accident can have a significant impact on how a civil case will unfold. Truck drivers are often armed with cameras and instructed to photograph the accident scene from various angles. While this may be a good idea, drivers need to be properly trained on what to photograph, stressed Burke. Photos of dead bodies and injured victims, for instance, can do more harm than good when they are shown in court.
“Training is critical,” agreed Markel’s Mandau. “Cameras are like a weapon. You don’t give a five-year-old girl a loaded gun and say ‘This will keep you safe.'”
He recalled with a grimace a driver who sent him a photograph of a young victim lying dead in the back seat of a vehicle.
“He walked right up to the window and took the picture,” he said.
“Drivers should be instructed on what pictures to take,” Burke agreed. “Limit it to the damage on the vehicles, not injured people because that becomes exhibit one when the case is tried.”
He also suggested taking pictures of skid marks and, when it’s safe to do so, Mandau said 360-degree pictures of the accident scene can be useful in recreating events.
If there are victims involved, the truck driver should check to ensure they’re okay, but avoid apologizing or discussing details of the accident, Burke emphasized. He pointed out Greyhound bus lines takes it a step further, and advises its drivers not to speak to the police at all until an attorney is present.
Another common mistake carriers make is conducting their own investigation and labeling an accident “preventable” or “non-preventable” for internal purposes. In some cases, those records have been used in court and perceived as an admission of guilt by the jury.
Burke said such internal investigations are necessary, but trucking companies should be cognizant that labeling an incident “preventable” could come back to haunt them, despite their legal team’s best efforts to have those records deemed inadmissible.
“We don’t like these investigations because there could be the potential for this information to be turned over to your opponent,” he admitted.
Likewise, if a citation was handed out at the accident scene, a trucking company should be reluctant to pay it. If a fine for unsafe driving, for instance, is paid by the carrier or driver, then the court may also consider that an admission of guilt.
“It’s very easy to pay the ticket but that constitutes a plea of guilty,” Burke pointed out. “That ticket is normally inadmissible until you plead guilty and then that (payment) can be very persuasive to a jury.”
Paper records such as a driver’s logs, pre-trip inspection reports, safety files, training history and hiring background should all be secured and kept in a safe place following an accident. If incriminating evidence such as an hours-of-service violation is detected, Burke said it’s important to bring it to the lawyer’s attention as soon as possible.
“If we know we’ve got a terrible case, before the litigation starts we can contact the opponent and try to mediate the case,” he said. “It’s amazing how many plaintiff attorneys will jump on this and mediate the case without knowing we have this bad information. We like to be very proactive.”
Markel’s Mandau agreed: “I’d rather have all the facts and know I have a lousy case and know my best line of defense is an early settlement rather than finding out on the steps of the courtroom.”
Tampering with evidence or ‘mysteriously’ misplacing such documents is a definite no-no, Burke advised. The penalties for spoliation (withholding, hiding or destroying evidence) are severe.
“The penalty can vary tremendously and it can be as severe as a default judgement against the company,” Burke warned.
If a truck damaged in an accident can be repaired and placed back in service, Burke said the trucking company must first offer the plaintiff’s legal team the opportunity to inspect it. Generally, a 21-day period is sufficient, he said. A certified letter should be sent to the victim’s legal team informing them of this window of opportunity.
“We typically send the letter saying ‘We intend to repair this vehicle in 21 days,’ and that’s a reasonable time frame,” said Burke. “We can’t put the company out of bus
iness to avoid spoliation claims.”
It’s imperative trucking companies cover all their bases and follow proper procedures from the moment the accident occurs, even if their driver was not at fault.
Mandau pointed out truck firms face a “likeability” factor in court and that juries are more inclined to side with the victim when hearing cases involving heavy trucks.
If that’s not startling enough, consider this: “Research has shown that people’s recollection of a loss changes with time,” explained Mandau.
“People’s memory will actually morph to reflect what they think should have happened rather than what happened. So not only are people forgetting some things, but they’re also changing the facts, which is why it’s critical to have everything in place and to react in a timely fashion.”
TORONTO, Ont. – To limit your liability exposure in the event of an accident, it’s crucial to have a detailed claims response protocol.
Will Mandau, vice-president of claims with Markel Insurance Company, said carriers must have an action plan in place. It needs to be communicated to drivers, practiced and maintained, he added.
“Minor losses can turn into large losses with a few wrong decisions,” he pointed out. “It’s critical to have everything in place and to react in a timely fashion. A critical component is early reporting, because a lot can go wrong during those first few minutes.”
All trucks should be equipped with a checklist drivers can follow if they’re involved in an accident. Even seemingly simple things like ‘Am I safe?’ or ‘Do I smell fuel?’ should be included, Mandau suggested.
“A driver is not in the best frame of mind (after an accident),” he pointed out. “He’s got all of these stresses and the biggest thing on his mind is probably ‘I’m going to get fired, I better do something.'”
The driver should have an emergency contact at the carrier – and also a back-up contact.
“People go on vacation, they go up north, what is the backup plan?” he asked. Mandau said somebody from the trucking company should be available 24 hours a day, seven days a week for drivers to call in the event of an accident. The person assigned to respond to such calls should be selected carefully, advised Mandau.
“If it’s 3 a.m. and they’re the type of person that’s going to snap, that’s the wrong individual because they can harm the outcome of a loss just as much as that driver can,” he said.
If they can’t get a hold of their safety manager, or the designated contact, the driver should call the insurance company to report the accident so the insurer can activate its own response team.
From there, it becomes a team effort between the driver, insurer and trucking company. Together, they will decide whether to involve an accident reconstructionist or an attorney.
Mandau said most good carriers have an accident response protocol in place, but some neglect to maintain it. He suggested carriers conduct the occasional dry run or “mock loss event” to ensure those involved in the action plan know what their role is and what to do once the plan is activated. He likened the process to a fire drill. “Most of us haven’t been caught in a fire, yet we have a protocol in place.” n