What do you do after an accident?
By: Rick Grammick
Date: 1998-09-09
Despite the best efforts of a fleet safety department or the cautious small-truck operator, accidents do happen. But safety pays, even after an accident, and furthermore, a good safety program will have a great influence on court proceedings and settlements.
In court, the appearance of things is often more important than reality, so always remember that your files and records may end up in court during a serious case. Safety, personnel, maintenance, and policy documents and files can be requested and entered as evidence against you.
Presentation
Studies reveal that verdicts of cases have sometimes been decided entirely on appearance. How do your drivers and owner-operators appear?
A burly, bearded cowboy type of driver may lose the case for you before any witnesses are even given a chance to speak. On the other hand, well-groomed, well-spoken, intelligent drivers are involved in accidents too, but they tend to give a much more favorable impression, both to the police and to a jury. This should be a definite consideration when hiring. Ask yourself at the time of initial contact, "What's my overall first impression of this driver and do I want him to represent my firm?"
Appearance of equipment is also a big factor. Clean, well-maintained trucks reflect pride and professionalism. Dirty, unkempt trucks tell everyone you don't care. With public opinion of the trucking industry as it is, that is a message you cannot afford to convey. Owner-operators' trucks that display offensive slogans or nicknames like "Speed Demon" will have a great deal of negative influence on a jury.
CB radios in trucks are a necessity these days, but remind drivers that police, the Ontario Ministry of Transportation (MTO), and the general public also monitor CB radio. I have listened to some conversations on CB radio between two truckers that I certainly would not want repeated in court. Driver CB handles are also a problem. Quite often they may sound catchy to a driver but are offensive to the public.
Radar detectors are illegal in Ontario and, if allowed in company or owner-operator trucks, convey a strong impression to police and juries that your driver intends to violate the law. Even if the driver was not speeding, the impression is that, sooner or later, the law would be broken.
Incomplete or missing driver logs and maintenance files and records will only make your drivers, and more importantly, your operation, look bad. Lawyers will often try to prove speeding or operating over hours by examining log books for the days, or even weeks, prior to accidents. Examine the results of your log auditing carefully and correct problems as they occur. Do not, however, correct the actual log book. That is falsification.
The absence of driver logs can also create problems. Canadian and U.S. regulations state that carriers must only maintain driver log books for a period of six months. When a serious accident occurs, the log books for at least 30 days prior to the accident should be included in the accident investigation file. Otherwise, lawyers may argue that these log books were unfavorable to the carriers or else they would not have been destroyed. Remember, you may well be in court several years after the accident took place. If maintenance records are missing, it can be inferred that they would have revealed shortcomings and therefore were destroyed.
Lawyers, especially U.S. ones, are becoming experts at trucking regulations and know full well the hours-of-service regulations and maintenance file requirements. When defects are reported to carriers by drivers, the records should clearly reflect that the defects were corrected, where, when, and by whom. The process of inspection and repair must be clear.
Driver personnel files should be in strict compliance with government requirements and should contain, at least, the employment application, references and written records of reference checks, written road test results, driver's license information, recall dates for licenses, medicals, training and a copy of the MVR or driver's abstract.
Remember, if you do not want a jury to see a messy file after a serious accident has occurred, clean it up before one takes place.
On the subject of MVRs or drivers' abstracts, it always amazes me how many carriers regularly turn this information over to their insurance company and seemingly do not examine it. Carriers are genuinely embarrassed when insurance companies question records. Misinformation in a driver's file could have devastating results in court.
Be prepared
Preparing for the eventuality of an accident before it happens makes good sense. Drivers should be instructed to report accidents immediately and these accidents should be reported to both the insurance company and the insurance broker immediately. Often, an adjuster can be on the scene before vehicles are even moved. Drivers should know what information to preserve and how to conduct themselves at the scene. They should give basic information to the investigating officer and not give verbal or written statements to anyone else. Above all, drivers must not admit liability at the scene, even if they feel they're at fault.
All accidents, even those which initially do not seem serious, should be treated as potential problems, and as much information as possible should be collected. Early evaluations concerning liability are notoriously faulty.
Photographs should be taken of all aspects of the accident scene, including undamaged portions of vehicles involved. All drivers should be equipped with a disposable camera and instructed on what to photograph.
Take pictures of the insides of the crashed vehicles, showing possible obstructions to a driver's vision. Try to show, in photographs, what drivers could and could not see at the point of impact. Photograph anything that could be valuable as evidence.
Accident reconstructionists may be invaluable in court and today, due to advances in accident reconstruction simulation technology, they can produce video-like re-creations of crash events that clearly show what happened at the scene.
If you do need to go to court, take the time to prepare your drivers, giving consideration to how they look as well as what they will say. Your lawyers will advise you in these matters. Remember, due diligence means that, in most cases, your firm will be deemed guilty and you must prove your innocence. A good set of files and records and hard evidence that your safety program is not just smoke and mirrors, but actually works, is your best defense.
This article is based on an original article published in Commercial Carrier Journal, December 1988, and edited by Robert Corry.
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