www.truckload.org or 703-838-1950). Following are some highlights.
HAVE A PLAN
"The key is to have a procedure in place — one that has been tested — so in the event of a catastrophic accident there are people prepared to take the call, the driver is prepared to make the call, and you have people in a stand-by mode ready to respond," advised Keith Dunlap, president of NTA Inc., an Omaha, Neb., based third-party claims administrator.
Even if the instructions are to call the insurance company, people within the organization should have all the necessary emergency numbers and should clearly understand the insurance company's response plan.
Important: have a back-up plan, Dunlap said. Make sure there are two emergency telephone numbers available 24 hours a day, and a second person to call if the first one one doesn't answer.
CALL A LAWYER
Don't wait until you're hit with a lawsuit before you seek legal counsel. In fact, Dunlap said retaining the services of a competent and experienced trucking defense attorney should be at the top of the accident response list.
The accident team should also include a qualified field adjuster and an accident reconstructionist. Both should have experience investigating truck accidents but you, or your attorney, should also provide them with detailed guidelines for the investigation. Any further guidance should come from, or through, the attorney.
RESPOND QUICKLY
"The faster you can respond to an accident, the better control you have over all elements of the investigation," said Dunlap.
A slow response leaves the driver and equipment vulnerable to queries from law enforcement, the news media and the investigation teams of others involved in the accident. It also makes it harder for your own investigators to observe road conditions, weather conditions, signage and other possible clues. Witnesses may be lost forever and physical evidence like skid marks, fluid trails and debris can quickly disappear.
Like many carriers, FFE Transportation Services prefers to send out its own investigative team, but if they can't get to a crash site in an hour or, at most, 90 minutes, they'll call independent adjusters.
"As time goes on, we lose what little evidence there may be at the scene," explained David Hedgpeth, vice president of compliance and safety.
"The quicker we can make an assessment of our exposure, the quicker we can react," said John Pion, an attorney with Dickie, McCamey & Chilcote, Pittsburgh. "It gives you so many better opportunities to resolve and handle that exposure if you appreciate what you're looking at sooner rather than later."
REVIEW THE PAPER TRAIL
The paper trail can be a long one — driver logs, fuel receipts, toll receipts, permits, maintenance records, the driver's personnel file. Mike Connelly, chief safety officer for D.M. Bowman, said one of the first things they do after getting word of an accident is review the driver's DOT file to make sure everything is in order.
"If it goes to litigation, chances are good that we'll have to turn over those records, so we want to make sure everything is there," he explained.
A review of driver and vehicle records also gives the accident investigation team a head start on potential problems. As Pion pointed out, plaintiff attorneys these days are asking for just about everything in the file. Early and thorough internal scrutiny can reveal any flaws in your defense or uncover inconsistencies that will need to be explained.
He also emphasized that DOT limits for record retention don't apply when you have a notice of a potential claim. For instance, federal regulations say you must only keep drivers' records of duty status for six months, but "counsel will be hard pressed to justify discarding documentation merely because six months have passed," Pion said.
"It can kill your case," Dunlap added. "If you selectively decide to retain logs that are favorable and discard those that aren't favorable after six months, you're going to get burned."
Equal care is required for data from ECMs and on-board recorders. Law enforcement or even plaintiff attorneys may not ask for the information right away, but Dunlap's advice is to retain the data in anticipation of litigation.
"Even if it appears to be adverse, it's best explained by a competent defense attorney," he said. "No defense attorney, no matter how good they are, can defend you if they don't have the document in front of them, and the jury is left to guess as to its volatility."
Pion noted that ECM data can sometimes be a friend. He recalled one multiple vehicle accident where two witnesses said the truck's speed was excessive for the weather conditions, but the ECM confirmed that the driver was in fact traveling at a safe speed.
TRAIN DRIVERS
What to do, who to call, what to say and what not to say should be part of every carrier's driver training curriculum. Among other things, they need to set out warning devices and take other action necessary to prevent additional accidents. If a hazardous substance has spilled or is leaking, they need to notify the proper authorities. They should check on others involved in the accident to make sure they're OK, but they should not discuss the accident with others at the scene.
Pion's rule for drivers is simple: Don't discuss the accident with anyone but the police until they've consulted a lawyer. If a driver is facing possible criminal charges he may want to talk with an attorney before talking with law enforcement (and it's not a bad idea to include a session on Fifth Amendment rights in your driver training). But Pion recommends cooperation in most other cases.
"If you don't cooperate at least marginally you're setting yourself up to take responsibility for that crash," he said. "The police will think you have something to hide by not being forthright in dealing with them and their investigation." But when talking to the police, drivers should stick to the facts and avoid speculation.
TRAIN DISPATCHERS AND DRIVER MANAGERS
Even drivers who are normally cool headed can fall apart after an accident, and the dispatcher or driver manager is likely to be the first person they call. So dispatchers and driver managers should be able to walk a driver through necessary safety procedures. They should know what to ask and what information to pass on if they need to call law enforcement or other authorities. They should know who within the company needs to be notified.
The accident response team, including dispatchers, driver managers and safety personnel must also be trained to handle a driver so he doesn't end up lashing back at the company — blaming faulty equipment or pressure to break rules. "The initial call is not the time to reprimand or terminate the driver," stressed Dunlap, "no matter the circumstances."
CRASH continued...
