Is Your Company Ready for the Next Lawsuit?

by John E. Harrison

Since I retired from the motor carrier safety enforcement community in 2011, I’ve taken on the mission of crash analysis and regulatory compliance for the motor carrier industry. Immediately following retirement, I joined a highly reputable accident reconstruction firm. I went to them with a personal and professional goal to work on trucking defense cases so that I could help motor carrier clients get a fair representation when presented with costly lawsuits. I am now able to assist them with regulatory compliance, and secondarily, to defend them,  if needed, as an expert witness following accidents . I truly believe that attention to detail when it comes to regulations, company procedures and polices is the best preventative medicine in regards to reducing crashes, liability, and unnecessary tragedies.

I have taken my 31 years of experience in motor carrier safety enforcement and focused it on preventative measures and safety planning to assist motor carriers. One of the things I have had to adjust to when it comes to evaluating regulatory compliance issues is how I look at the seriousness of certain regulations. In other words, there have been many times when as a state safety investigator I would look at something like an incomplete piece of paper in a driver qualification file, such as a driver’s employment application, and form the opinion that “it’s not a big deal.” However, I’ve learned that in the civil lawsuit world plaintiff’s attorneys will take such an omission and make it a grey area. In essence, if your driver inadvertently leaves off a previous employer, then that driver may be portrayed as untrustworthy. Consequently, everything he or she says to explain how the accident happened may be called into question. Should your driver intentionally leave off a previous employer because that part of his or her work history might reveal something detrimental, the plaintiff’s attorney may use it against your company.  As the motor carrier you may be blamed for negligent hiring for not conducting a proper background investigation.

As a motor carrier you should also take a long hard look at your hiring practices and the threshold you set for risk tolerance; how many tickets, accidents, etc. are too many? Too often a motor carrier will let the insurance carrier say “yes” or “no” as to who gets hired.  I’ll say this: If you are a motor carrier that’s serious about safety and reducing your potential liability exposure, your standards for driver quality should be higher than any insurance carrier has set. I’ve seen too many times where motor carriers don’t take routine things seriously such as the driver annual review process and reviewing driver logs for hours compliance and falsifications. As a motor carrier you must have an effective hours of service disciplinary program and not be afraid to let a driver go if he or she repeatedly violates the rules. Believe me, such seemly routine things can become very big liability issues when your vehicle and driver are involved in a serious injury or fatal crash.

Many times company policies are not kept up-to-date or are not followed by management. This is often a major problem area I have seen in defense of a motor carrier in an accident lawsuit. In other words, if a policy or procedure is important enough to put into writing then it probably should be enforced in a uniform manner. Other important issues that surface in accident lawsuits are post-accident drug and alcohol testing, vehicle periodic maintenance, and maintenance records. These procedures and their related records should be main priorities for any motor carrier.

I encourage you as a motor carrier to immediately implement several proactive measures to reduce your liability:

(1) hire a reputable outside regulatory compliance firm to assess your level of compliance and to conduct periodic mock audits;

(2) if your company is in an accident, immediately have an accident reconstruction firm that has motor carrier safety experience go to the scene and document all physical evidence, conduct a level 1 inspection of your vehicle and inspect the other vehicles involved, including performing a download of the electronic control modules (ECM) for your truck and (with permission) the other vehicles involved; and

(3) following an accident, preserve all documents, electronic files, etc. regarding your vehicle, driver, and the load. I say this because in most states a plaintiff has up to two years to file a lawsuit. If you preserve all potential evidence it will be available to help defend your position and it reduces your chances of being accused of trying to cover-up the truth. This holds true for both evidence that may help you or hurt you. It has been my experience that those motor carriers that conveniently loose or fail to preserve evidence detrimental to them come out far worse in the end if the matter goes to a jury.

Be safe!

This article was originally published in CVSA’s Guardian in the first quarter of 2013. 

About the author

John E. Harrison is a Past-President of CVSA and retired from the Georgia Department of Public Safety at the rank of Captain after 31 years of honored service. He now works as a Commercial Vehicle Expert for Collision Specialists, Inc. located in Gainesville, Georgia. Feel free to contact him.

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