What do you do when an accident occurs? Attorney examines the steps that should be taken
ON April 14, 1970, two days into its mission to become the third in the Apollo space program to land on the moon, Apollo 13 experienced an oxygen-tank explosion that severely damaged the spacecraft's electrical system.
“Houston, we've had a problem,” said Commander James Lovell in the famous statement that has been worded differently as the years have gone by.
Robert Ramey, of the law firm Ramey, Chandler, McKinley & Zito, PC, of Houston, Texas, used that in his presentation, “Minimizing Damages and CSA,” as an example of a crisis that needs to be systematically attacked. Ramey spoke during the National Tank Truck Carriers Tank Truck Safety & Security Council annual seminar April 5-7 in Austin, Texas.
“The challenge we all face in this industry is how to prevent and minimize damages when and if an accident occurs,” he said. “When it does happen,a companyhas to ask itself: Now what are we going to do?
“The barrage of emails is almost a feeding frenzy when an accident takes place. Some of those emails may ultimately be discovered. So I would suggest we try to restrain ourselves in terms of what kind of email communication we have so we don't have to be concerned later on when a lawsuit gets filed.”
He said the seven Ws need to be examined: who, what, where, when, why, witnesses, and what about.
“You should allow the driver to talk to the investigating police officer,” he said. “My view — and I think it is the majority view — is, why do you want to run the risk of the truck driver irritating the officer and have that officer become more suspicious, wondering why he doesn't want to talk to the officer and instead wants to talk to the lawyer first? How often is it that you call your lawyer and he's on the scene within an hour? Many times you can get the lawyer to talk to the officer on the phone.”
He said the following should be noted: physical evidence, vehicle inspection, weather conditions, signage (is it a construction zone?), lighting, logs, trip documents, and witnesses.
A decision should be made on which experts to retain in the areas of toxicology/industrial hygiene, lighting, Department of Transportation (DOT), trailer/tanker, brakes, tires, load securement (shifting/dunnage issues), and signage.
The DOT expert is of paramount importance.
“If you have an accident in a construction zone, you don't know whether six months from now that accident scene is going to change,” he said. “So you may want to retain an expert who is very familiar with the regulations of whatever state you're in regarding highway design and construction. If it becomes an issue and the scene has been paved over, there will be somebody who will be able to interpret the construction.”
He advised that executives should exercise restraint with the driver.
“Should you let him cool off?” he said. “Should he have counseling? That's an issue you have to talk about and certainly consider. I've had experience where they don't need a swift kick in the pants. They need some reassurance. Somebody needs to let them know it's going to be OK. That's really important for some of these guys, particularly if it's not their fault. Those folks are crushed when they have a fatal accident and have never had one before. Just let them know, ‘We're here for you.’ They have issues to work out. Keep them under control.”
If a lawsuit is involved, what is the proper approach? Proactive or reactive?
“There's nothing wrong with saying you're sorry,” Ramey said. “It's not a sign of weakness to reach out. There is a lot of lip service and concern about the image that we are fighting to restore. At some point, that knights-of-the-road armor has been tarnished. One way to begin to restore that luster is to reach out to the family and complainants who may need some help. It may not taste very good to you, but it pays dividends.
“You might offer to advance money for medical care or make arrangements for travel to physical therapy. If you sit down and work with some of these families, it will pay dividends. It's swimming upstream. The plaintiffs, claimants, and lawyers are sometimes skeptical.”
Mediation can be beneficial, he said, because the objective is closure for all.
“The plaintiff lawyer wants to reduce it to a deposit slip,” he said. “When the case is over, he's not going to remember Mr Jones. He wants to resolve and close the case. Mediation gives you the opportunity to walk the plaintiff — not the lawyer — through the accident and have him understand.”
He summoned the famous lines from Jerry Maguire in which the professional football player (Cuba Gooding Jr) shouts to his agent (Tom Cruise), “Show me the money!” Later, Cruise responds, “Help me help you!”
“It sounds corny, but it has helped me in mediation,” Ramey said. “You can tell them, ‘If you don't want our help, our job is to make sure you get the least amount of money. There has to be some reasonableness in this room. It's not a one-way street.’ If they don't want to hear that, so be it. You've tried to help them. You've warned them. I had one insurance client that brings checks to mediation, and we write checks. We have written checks for several hundred thousand dollars.
“If mediation and litigation don't work, we move on. Every case is different. We don't know what the outcome will be.
It may sound trite and trivial, but nowadays with all of the social networking information that is available, carriers need to do some background work on those involved in the case. “I do background work on the plaintiff and my driver,” Ramey said. “We should do more of that internally. Everyone on this list is not immune to being investigated. You just don't know what's out there. We need an open exchange of information. Is that a privacy violation? I don't know. But you'd better ask.”
It's critical to know your company's personnel. Who is the face/voice of the company? The chief executive officer? Safety director? Dispatcher? HR/driver trainer? Time must be spent talking to them and briefing them on what to expect.
“When we get into lawsuits, many times we can't necessarily control who the plaintiff lawyer wants to talk to,” he said. “If he wants to depose the HR or driver safety trainer, I have to get that person ready. I suspect a lot of your driver trainer and HR people have not been deposed. You have to spend time letting the process come to your personnel. I think too many of my colleagues make the mistake of not taking the time in advance to work with these various people. I think it's a mistake to have the deposition of one of these individuals scheduled for Tuesday morning at 10 and arrange for an 8:30 meeting to get them prepared, particularly folks who have never been deposed. Many times those folks have issues and all types of questions. They're anxious and nervous and don't know what to expect.
Preparation for a court date includes learning about the plaintiff. “Many times we need to think outside the box and ask ourselves, ‘Are there some other witnesses who may know the plaintiff in their work?’ Maybe they are in a sports club. Take the time and spend the money with a good investigator to see if there are some people who know this fellow or lady, and can attack their credibility.”
Local counsel can be extremely important, he said. Money has to be spent to find top-notch, qualified experts.
“I'm a big believer in matching your expert with the venue,” Ramey said. “You don't want a New York expert going to south Texas and trying to explain something to a jury in Hidalgo County. You need to find someone who will play well in the specific venue you're in.”
He said there is no substitute for hard work. You have to be a determined detective.
“Its tedious work,” he said. “I can't tell you how many times we get numb looking at stuff day in and day out. We overlook some things. You have to look at medical records and the driver's medical exam. There are some gems in there sometimes for the plaintiffs to pounce on that need to be brought into the forefront. It is part of their job to find some things to give everybody heartburn and scare you. They want to point out that if you had looked more carefully at this driver and your company policy, you wouldn't have hired him.
“Know the medical records. Every piece of information is potentially very important. The same thing applies to the plaintiff's medical records. I enjoy piecing them together.”
Ramey took some time to analyze the role that the Compliance, Safety, Accountability (CSA) program will play in legal dealings. He said his definition of CSA is “constant strategy awareness.”
“If you are constant and you have strategies and you're constantly aware, I submit that you will be able to achieve what the feds want us to do,” he said.
“Like it or not, management and your safety department and drivers are going to become much more aware of one another. I believe you should increase the frequency of your meetings. You cannot bury your head in the sand when it comes to new requirements. It's a different package. This is burdensome and onerous. But hopefully safety will improve for everyone. You have to be compliant, aware, and willing to spend time with your drivers. The front-line representatives in your business are the drivers. You have to continue to encourage their participation, and I believe you will come out miles ahead.”
He gave these tips for preparing for the impacts of CSA:
- Contract ramifications: responsibility for notification of ratings; frequent changes in ratings; and requirements to maintain ratings.
- Personnel ramifications: additional risks of marginal drivers and potential shortage of quality drivers; training requirements.
- Educate drivers to know that out-of-service violations aren't all that negatively impact a ranking — even warnings can be included in the calculation.
- Maintain records of all violations. If inaccurate data was used, the correct data is required to correct the error.
He said a March revision in CSA language should give shippers and brokers more latitude in terms of which carriers they are going to hire. The FMCSA will replace the current language displayed on the public Safety Measurement System (SMS) website screen entitled “USE OF SMS DATA/INFORMATION” with the following:
“The data in the Safety Measurement System (SMS) is performance data used by the Agency and enforcement community. A symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring. The symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 31144. Readers should not draw conclusions about a carrier's overall safety condition simply based on the data displayed in this system.”
Said Ramey, “What that means for an unrated carrier is that if they have not received an unsatisfactory or out-of-service, they are deemed to be satisfactory. Therefore, shippers and brokers can rely on that rating and not necessarily be faced with ultimate vicarious liability.
“And this almost puts FMCSA back into their position. It says their
job is to evaluate but not actually dictate policy. Certainly there is concern regarding: ‘What does this all mean?’ I suspect that it's still going to be discovered. I think the rating numbers we have are immaterial.” ♦
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