TORONTO, Ont. - An accident on a U.S. interstate highway can be a Canadian trucker's worst nightmare, but it doesn't have to be.A truck crosses the Canadian-U.S. border every 2.5 seconds so the likeli...
STAY OUT OF THE COURTS: David Duke, defense litigator with Young Moore and Henderson P.A. of Raleigh, N.C, talks to an intrigued crowd at the OTA convention in Toronto in November.Photo by Katy de Vries
TORONTO, Ont. – An accident on a U.S. interstate highway can be a Canadian trucker’s worst nightmare, but it doesn’t have to be.
A truck crosses the Canadian-U.S. border every 2.5 seconds so the likelihood of having to report an incident on U.S. soil for a Canadian driver is significant.
Mark Ram, president and CEO of Markel Insurance Company of Canada, deals with Can-Am insurance cases every day.
“I can’t stress enough how the driver’s actions after an accident can make all the difference,” says Ram.
He points out that it isn’t simply the border that separates the two countries when dealing with insurance claims, but the rules governing the U.S. legal system as opposed to those applicable to the Canadian courts play a big role as well.
Failure to recognize the situation and act accordingly can cost a carrier millions of dollars, and according to Ram, cases that were at one time, being settled at $1 million are now being settled for $4 or $5 million.
Many drivers don’t know what to do when they find themselves in these situations, and by knowing the proper procedures, a driver can minimize claims and avoid multi-million dollar judgements or even the demise of their company.
The most critical thing a driver can do to help cut costs and minimize damage is report the incident right away to the insurance company, says Will Mandau, national director of claims at Markel.
There’s no magic to it, he says, if you report claims early, you can minimize your costs, sometimes cutting them in half. If you wait, your claims costs will likely continue to rise.
For truckers, the lag time between when the accident occurs and when the claim is reported, is generally over four weeks. This is unfortunate, Mandau says, because as time passes memories fade and witnesses become harder to locate, and so costs will increase.
“People’s recollection diminishes with time and can be manipulated,” says Mandau. “The more dated the information, the less credible it is and the harder it is to determine liability or responsibility.”
By immediately reporting an accident directly to the insurance company, it will also allow them to send an accident reconstructionist to the scene if needed. His role is critical in order to capture data that can help minimize your exposure and protect your interests, says Mandau.
It is not always wise to rely on the police for this, as they may not have the same level of expertise, he says, and as human beings, may have their own prejudices and preconceived notions as to what happened. This is especially true while travelling through foreign jurisdictions.
James Hrycay, an accident reconstructionist with BTS Consulting Engineers in Windsor, Ont., says the absence of evidence is often a driver’s worst enemy.
“We can determine all of the hard facts about an accident. As engineers, we can essentially talk to the truck to get valuable information from on-board communication systems. Drivers are usually blown away with what I know when I walk up to the truck,” Hrycay says.
Opposition parties can’t do anything about the ‘hard’ evidence but will try to manipulate the ‘soft’ evidence, says Hrycay.
“The smallest things in Canada can balloon in to the biggest issues in the U.S.,” Hrycay says. “The U.S. system is more aggressive than the Canadian system, so it is important to get all the hard facts from the scene, and we can only get those facts if the driver notifies the insurance company immediately after the occurrence.”
One reason why truckers don’t report claims right away is their fear of rising insurance premiums, even if they are not at fault.
Mandau says it isn’t accident frequency that drives insurance premiums up, rather, it is the amount ultimately paid. Some drivers worry about the security of their jobs, but while the accident itself may not be cause for dismissal, significantly increasing a fleet’s costs by not immediately reporting an accident certainly may lead to the termination of a driver’s employment, he says.
Other drivers are hesitant to report accidents right away because they may not have their reporting paperwork in order.
“Just call your insurance company and they can help record the information right over the phone and when they arrive at the scene. That’s why Markel has a 24/7 accident reporting line, so we can dispatch someone to the scene immediately to help gather all the facts and protect your interests,” says Mandau.
Often, however, owner/operators and fleet safety managers report accidents to their brokers first because they assume this is the same as reporting it to the insurance company.
“Although it may seem like the first thing to do, reporting an accident to a broker before your insurance company creates additional delays, which increases costs,” he says.
Brokers are a vital piece of the puzzle and should always be involved, however, in terms of notification, says Mandau, contact your insurer first, then your broker. Then everyone can work together to protect the interests of those involved.
David Duke, a defense litigator with Young Moore and Henderson P.A. of Raleigh, N.C., says there are lots of things a driver can do when they get into an accident that has a secondary, but very significant impact on the outcome.
Showing compassion and letting the third party know that you care about what happened can help a great deal in a jury’s decision, Duke says, but be careful not to lay or accept blame.
You can be helpful and answer questions, Duke says, but be brief and under no circumstance guess at any facts of the case.
“By mobilizing the team and getting the ball rolling, you will minimize the potential problems and will be able to anticipate the next step,” says Duke. When legal counsel is informed, they can maintain control of documents and help develop an important rapport with enforcement parties involved, coordinate contact with third party counsel and help control media reports, says Duke.
Although it is recommended to take photos of the road conditions, contributing hazards and damaged vehicles, a driver should never take pictures of injuries or victims. Duke says, they will inevitably show up in court, and in the U.S., will help to inflame the compassion of the jury members.
Both Duke and Hrycay agree that another important thing for drivers to remember is to perform proper inspections, keep the rig maintained and keep logbooks accurate and updated, because the opposing lawyers will look for any discrepancies or the slightest inaccuracy to use in court.
“You have to be prepared,” Duke says. “You must be educated in what to do when you find yourself in this unfortunate situation.”
The clock starts ticking once an accident occurs and every minute makes a difference in regard to reporting insurance claims. If not reported right away, an accident will likely only come back to haunt you.
So be sure to keep your accident procedures handy, a disposable camera in the glove box and the after hours insurance company number on your dash board, and remember that reporting early can save you money, protect your job and can eliminate unnecessary hassles.