Litigation Often Consequence of Accidents
Jun 1, 2000 12:00 PM
STATISTICS show that 72% of collisions involving commercial and passenger vehicles are the fault of passenger vehicle drivers, said Lieutenant Tim Sharkey of the Louisiana State Police. At the same time his colleague, Sergeant Ronnie Mayeaux noted that it's not uncommon for law enforcement officers to receive lawsuit-related queries at the scene of the accident.
Although the two statements may seem unrelated, the records show that litigation is a real consequence of accidents, no matter who appears to be at fault. And what's worse, some of the consequences may include criminal charges against the truck driver and/or his company. John S Hunter, attorney with the firm of Courtenay, Forstall, Hunter & Fontana, New Orleans, Louisiana, said criminal prosecutions of motor carriers and their employees are on the rise.
The men commented on the litigation threat at the annual National Tank Truck Carriers (NTTC) Safety Council meet- ing in New Orleans April 19-20.
Educating the public about sharing the road with commercial vehicles should be a top priority for government and carriers. "We need to continue to raise the public's awareness, and you need to partner with us," Sharkey said.
Some technology advances are expected to aid in accident evaluation. Portable computers in police cars will allow officers to speed data to central locations where it will be available almost immediately.
"With this technology, we should be able to do better evaluations of crashes and come up with preventive data," he added.
One concern on everyone's radar screen is truck drivers who are driving while using alcohol or other drugs. "We have seen a 10-fold increase in drivers of commercial vehicles (using alcohol or other drugs)," he said.
When accidents involving drugs or other criminal-related incidents occur, carriers have to make a decision about whether to provide a criminal attorney for a driver. There are sensitive conditions to employing an attorney to represent an employee who is charged with a crime, depending on the charges that have been filed, said Hunter.
"Early and thorough assessment of criminal, administrative, and civil liability is imperative because disposition of one aspect will likely have a major bearing, if not collateral estoppel, on later proceedings," he said. Estoppel means preventing a person from making an affirmation or denial because it is contrary to a previous affirmation or denial by that individual.
For example, drivers might make a statement at the scene of the accident while still traumatized by the circumstances. If questioned under different or later circumstances, their statements could be entirely different. For that reason, and others, carriers should have a thorough plan in place that trains drivers for such eventualities.
Sharkey noted that carriers may not be able to thoroughly search a driver applicant's record state-by-state. "Sometimes, companies don't know they have a bad apple," he said.
Mayeaux, an incident reporting supervisor, said that the number one cause of accidents rests with driver error, particularly from fatigue or bad judgment. Other accidents winning top spots on the list are those that happen while loading and unloading product. Spills from leaking equipment and improper repairs threaten safety and the environment.
With so many risks involved, carriers must continue to be vigilant in training, maintaining a safety program, and preparing for any eventuality.
"Carriers should consider the whole spectrum of possible litigation that may result from a major casualty, and begin coordination of their litigation efforts from the moment of notice," said Hunter.
Having a strong incident program in place is essential, agreed Wayne Mason, attorney with the firm of Strasburger & Price, Dallas, Texas.
He recommended that carriers determine what procedures adjusters and company officials should follow at the scene of an accident. Witness statements should not be taken without prior approval of the company or the company's attorney. He said the driver should be removed from the scene before he makes any statements.
"Advise the driver not to talk with police officers or provide any written statements without first obtaining approval of the company and/or its representative," he advised.
Detailed photographs, excluding graphic images of injuries, should be taken by company representatives to document the accident site. All company representatives should avoid making comments to the media if at all possible. At the same time, law enforcement officers should be treated with courtesy and accident victims should receive expressions of sympathy.
Witnesses should be identified and their addresses, telephone numbers, and other details obtained. All appropriate records should be secured immediately, including accident reports and media coverage. Wes Grimes, an engineer with Collision Engineering Associates, Mesa, Arizona, said, "There is no bad evidence."
He pointed out that investigators who will be called to an accident scene should be prepared with excellent camera equipment and communication devices such as cellular phones. However, he discouraged the use of digital cameras, because the images can be manipulated after the photographs are taken. Some companies may prefer using professional photographers. Measuring devices should be used for obtaining exact footage such as skid marks.
"Plan early and update plans regularly," Grimes said. "Do some role playing with company people who will be involved in handling a severe incident."
To be able to respond appropriately, everyone in the company must understand its products and what actions are required to handle them. "You never know when that serious incident is going to happen," said Steve Niswander, safety director for Groendyke Transport, Enid, Oklahoma. Groendyke formed a "Go Team" that includes a lead attorney who is the first person the company calls when a serious incident occurs. Also on the team is a third-party insurance administrator and an engineering consultant who investigates the incident.
"Simply know the answers before you are asked the questions in court," Niswander said.
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