Have you heard the latest spiraling claims story?

The one about the major truck operation tried for wrongful death in Phoenix about three months ago?

They faced a US$11 million judgment.

The case is now under appeal but it has created a frightening new precedent for Arizona plaintiffs.

Demands for similar cases in that state are now starting at US$7 million…it’s only a matter of time before other states follow suit.

“In the unfortunate event that you are sued in the U.S., you might feel like Dorothy in the Wizard of Oz – as though you have just landed in a strange, distant land,” said David Duke, a noted U.S. defense attorney with Young, Moore at Markel’s 2002 Ontario Trucking Association seminar Managing Your U.S. Exposure.

As Duke stressed, getting into an accident in the U.S. means there’s a very real chance that you’re going to go to court.

It’s that simple. At fault or not, the U.S. legal system is a whole different ballgame with a unique set of rules. And you could drive a truck through the variance in those rules.

It is not uncommon to face multi-million dollar judgments south of the border. The Supreme Court of Canada placed a cap of $100,000 on personal injury awards (compensation for pain and suffering and other non-pecuniary damages) back in 1978, which, with inflation, stands at $288,500 today.

There is no such ceiling in the U.S.

Judge vs. jury

Unlike Canada, most U.S. cases are decided by a jury and not by a judge. Jury sympathy is impossible to eliminate and you will be judged on many things, including how you look, act and speak.

Once their verdict is determined, U.S. juries are allowed to render virtually limitless monetary awards – and frequently do.

The last thing you want is to be sitting as a defendant in a U.S. courtroom while the jury deliberates how much money to give the grieving family of a fatally injured individual.

Defense tactics

So how do you protect yourself against such scenarios on U.S. soil?

As we emphasized in last month’s article on minimizing claims costs, your best line of defense in the event of a U.S. accident is calling your insurer first – and fast.

By waiting even a few hours, trucks can be moved or towed and valuable evidence can be disturbed or destroyed.

Your insurance company likely retains a mobile crew of trained investigators, ready and able to be on site almost immediately to assist you.

Regardless of the seriousness of the incident, your case rests on evidence, hard and soft.

It will be sifted through by U.S. attorneys searching for anything they can use against you.

Be forewarned: they are looking for a smoking gun – so call your insurer and get that accident investigator on the scene immediately.

The Ontario Trucking Association reports that in more than 70 per cent of accidents truckers are not at fault.

However, without the professional assistance of an insurance investigator to secure vital legal evidence, that truth may very well be lost in a U.S. court, costing you dearly.

Legal evidence breaks down into three categories:

1. Scene and Vehicle Evidence

Best captured and preserved immediately by your insurance investigator, these include: final vehicle resting positions, tire marks, braking or otherwise, scuff or scrub marks, pavement scars, roadway geometry, and sight lines; as well as crucial vehicle evidence such as damage location and severity, and the mechanical condition of brakes, tires, suspension and lighting systems.

2. Company Evidence

Take special care of pre-accident evidence, such as: logbooks (which should always be kept for six months), fuel and toll receipts, maintenance reports, personnel files, bills of lading and driver qualification files, all of which may be subpoenaed by a U.S. court

3. Soft Evidence

Drivers’ interviews, witness statements and police reports are some of the most important evidence. Here, a lot rests on your driver. His actions at the scene of an accident (e.g., whether he showed compassion for any injured individuals) will leave an indelible impression on witnesses.

Drivers should co-operate with the police but not volunteer information or guess at it, especially when the questions relate to speed, distance, or how quickly an event happened.

The policeman’s job is to find out whether somebody did something criminally wrong…and they may try to elicit statements from drivers until the point where they deem that criminal charges should be laid.

Avoid signed statements for drivers

Drivers: Do not sign any written statements at the accident scene, other than with the police.

In a U.S. court, it is all too easy for plaintiffs to use dated, signed documents solicited from the driver by third parties, attorneys or third party adjusters at the accident scene to trip up the defendant and impeach their testimony.

One recommended way to document information for your employer and insurer is through an independent adjuster interview (arranged through your insurer).

These interviews are never signed and therefore can be refuted in a court of law if they are found to contain inaccuracies.

Other U.S. accident survival tactics

Another important and frequently overlooked advantage in getting your insurance company involved as quickly as possible is attorney/client privilege.

“Once the insurance company’s attorney becomes involved, every element of the investigation, from driver interview and witness statements to your accident investigation records, is protected. The plaintiff is rarely entitled to that information, unless court ordered,” says Duke.

“If you do not have that protection, all of the information you collect may be turned over to the plaintiff’s attorney.”

Finally, one benefit to being Canadian is that there’s a good chance the case can be moved from a state court to a federal one, because Canadian carriers generally operate under federal jurisdiction. If you have that option, take it.

While county court judges are elected, federal judges are appointed – and therefore less subject to political pressure from the community.

You will also be assured of a broader base for jury selection.

When all is said and done, your best hope for avoiding expensive lawsuits in the U.S. is to act quickly if things do go awry.

Make safety the top priority for everyone in your company – and try to stay out of the U.S. courts!

Please send your questions, feedback and commentary about this column to letstalk@markel.ca

– Mark J. Ram is president and CEO of Markel Insurance Company of Canada.