Accident review board determinations require special legal considerations
Jun 1, 2002 12:00 PM
ACCIDENT REVIEW boards are often used by carriers to analyze accidents in order to develop better safety procedures. However, the review generally is documented and placed in a driver file where it can be accessed by opposing attorneys, should a lawsuit result.
“Although no longer required by Department of Transportation regulations, some companies still insist that the accident review board make a determination as to whether the accident was preventable or non-preventable,” said Mark Scudder of Strasburger & Price LLP, Dallas, Texas. “As a general rule, the accident review board holds the company driver to a much higher standard of care than the standard the driver is held to in a negligence lawsuit.”
Scudder, Dick Carr of Quality Carriers, Tampa, Florida, and Darryl Vereen of Mounce, Green Myers & Galatzan, El Paso, Texas, addressed problems that may arise when accidents occur and carrier owner-operators are involved.
Companies should keep the preventable ruling and any other reports made by the accident review board from opposing attorneys. “As an alternative, trucking companies and their counsel may want to consider asserting the critical self-analysis privilege to resist discovery of such documents,” Scudder said.
He added that a trucking company also should develop a written policy for the board, stating that the purpose of the board is to evaluate accidents to improve safety and prevent accidents, and state that the board findings and conclusions are to remain confidential.
On another legal note, Carr said that the use of a single attorney in legal matters involving carriers and their owner-operators may not always be the best choice. Employing one attorney to handle lawsuits and another to handle insurance contracts is a wiser decision, he added.
Vereen pointed out that if only one attorney is used for both a carrier and its owner-operator in a lawsuit, and the attorney has to be removed for some reason, the cost mounts for both parties as other attorneys have to take over the case in order to proceed.
He noted that carriers may not be liable for owner-operators actions that result in lawsuits, depending on circumstances.
If carriers do become involved in a lawsuit, Carr emphasized the importance of making sound and reasoned legal choices. “You've got to remove the emotion from your decision,” he said.
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