Is Your Driver Defendable? NY Business...Most accidents are not truckers’ fault –video...

Is Your Driver Defendable?HAYLOR, FREYER & COON INC.

❖ Insurance Industry

❖ Litigation Landscape

❖ Measure Your Defenses

Driver

Regulatory Compliance

Technology

Claims Management

❖ Where Do You Go From Here

HAYLOR, FREYER & COON INC.

❖ Insured truck collided with a passenger vehicle

❖ The vehicle rolled over in the median

❖ Two occupants with one fatality

❖ No damage to insured truck

❖ Insured driver is charged with unsafe lane change

❖ DriveCam event recorder in truck.

Around 2:00 a.m. on a Texas Highway


Did motor carrier driver demonstrate due care?

Liability position?

Defensible?


Received revised police report, received letter from judge dismissing the citation.

NO LIABILITY – MINIMAL EXPENSE


Trucking Insurance Facts

❖ Commercial auto losses grew from $744mm in 2011 to $2.9b in 2016

❖ 14% increase in trucking fatalities from 2011 to 2016 with only .3%

increase in mileage

❖ 2010 – 1.5% of accidents > $100,000

❖ 2017 – 3% of accidents > $100,000

❖ These losses account for 75% of all incurred losses

❖ From 2013 to date rates up over 45% in primary auto and excess


The number of motor vehicle accidents continues to rise

❖ Distractions – more than cell phones

❖ Low fuel, good economy - More vehicles

❖ Aged infrastructure - Construction/disruption


Increased frequency of accidents with a exponential increase in claim costs

❖ Value of equipment – Trucks, trailers, passenger cars

❖ Towing - $7B Industry in US

❖ Litigation


❖ News - Record large verdicts in 2018; i.e. Werner

Enterprises

❖ Every month in 2018 there were $10M+ verdicts not

making news

❖ Seven figure verdicts the new norm?

❖ Insurance Industry has not made a profit in auto

insurance since 2011

Truck Accident Litigation Activity


Litigation Activity – PLAINTIFFS’ BAR

❖ Aggressive-”professional” firms – not ambulance chasers. Aggressive marketing

❖ Overwhelm you with allegations and document requests – spoliation letters

❖ Incentivized to drag out the process

❖ Able to finance their litigation expenses

Law Firm Angers

Trucking Industry with

Billboard and Magazine

Ad Calling Trucks “Serial

Killers”


❖ Bills of lading for any shipments transported by Joe

Smith for the day of the accident and thirty day period

preceding the accident

❖ Any oversized permits or other applicable permits or

licenses covering the vehicle load on the day of the

accident

❖ Joe Smith’s daily logs for the day of the accident and

the six month period preceding the accident together

with all material regarding Drivers record of duty status

and automatic on-board recording devises and

Automatic On Bard Recording Device records with

audit trails.

❖ All existing driver vehicle inspection reports

❖ All existing daily inspection reports for the tractor and

trailer

❖ All existing maintenance, inspection & repair records

❖ All annual inspection reports

Sample Demand Letter❖ Joe Smith’s complete driver’s qualification file including

✓ Application for employment

✓ CDL license

✓ Drivers certification of prior traffic violations

✓ Drivers certification of prior accidents

✓ Drivers employment history

✓ Inquiry into drivers employment history

✓ Pre-employment MVR

✓ Annual MVR

✓ Annual review of driver history

✓ Certification of road test

✓ Medical examiners certificate

✓ Drug testing records

✓ Joe Smiths complete Driver Investigation history File

✓ Joe Smiths complete LCV driver instructor

qualifications files

✓ Motor carriers certification of the drivers qualifications

✓ Photos, video, computer generated media or other

recordings of the interior and exterior of vehicles

involved in this accident


The Reptile Theory

The Reptile Theory


Safety Rule + Danger = Reptile

Plaintiff attorney - point out the safety rule, get the

defendant to agree with that rule, and then demonstrate

to the jury that the defendant broke the rule putting the

entire community at risk.

In order to protect the community the jury is asked to

send a message to the trucking company that unsafe

practices will not be tolerated.


The jurors are reminded that the only way to send this message is through a

large verdict. The trial is not just about compensating the injured party, but

protecting themselves and others (such as their loved ones) from careless

trucking companies who place profits over safety


What are your Defenses?


Driver Management Program

❖ Hiring

➢ Complete/correct application

➢ Documented screening process

➢ Document deviations from your written qualification

requirements

➢ Employee Book received and reviewed upon Hire

❖ Training

➢ Upon hiring

➢ Regular training intervals

➢ Professional culture

➢ Performance reviews


Driver Management Program

❖ Driver Performance

➢ Performance issues – address and document

➢ Coaching process

➢ Training specific to unacceptable behaviors

➢ Disciplinary process

➢ License Notification - Supervision

❖ Post accident / near accident

➢ Allow time to determine facts

➢ Address proximate causation – retraining

➢ Discipline process – commensurate to the act


Central Analysis Bureau – “CAB” Report



❖ Insurance Industry Tool - also used by shippers and plaintiffs

❖ Comprehensive report on your operation ~ your report card

DOT rating, CSA Alerts, Radius, Shippers,

Severe violations, Shared equipment/addresses/phone#

Inspection Selection System (ISS)


TECHNOLOGY

❖ Safety innovations on new equipment

❖ EVENT RECORDERS – Video

➢ Prevent the accident from ever happening

➢ Most accidents are not truckers’ fault – video exonerates

the motor carrier more often than not

➢ Provides “Tale of the Tape” – better to know upfront where

liability rests and base litigation strategy around that

➢ Does failure to use available technology make you

vulnerable to “unreasonable safety practice” claims?


According to The American Transportation Research

Institute (ATRI), a driver with the reckless driving

violation is 114% more likely to be involved in a future

crash.

A newly hired driver—even an experienced one—is

70% or more likely to be involved in a crash within

their first year of driving for a new employer.

Technology Assist with Predictable Analytics


ACCIDENTS HAPPEN!

❖ Truck vs Passenger Car ~ Professional vs Amateur

❖ Professional – held to a higher standard

❖ Truck is viewed as bad actor the majority of the time

❖ Societal perception of trucks/trucking industry

❖ Facts support amateur at fault greater than 70% of all

accidents between truck and cars


Claims Management

❖ Documented post accident process – and follow it!

❖ Train your drivers – before accident on how to

respond/react immediately following an accident –

important!

❖ Notify your broker and carrier as soon as expected

❖ Any potential for severity from the accident – defense

counsel assigned immediately


Claims Management

❖ Preserve the data immediately after crash

❖ Correct miss-information while it is fresh

❖ Driver - communicate , support, educate on findings

❖ Role of your insurance broker – drive the process and be your advocate


Where Do You Go From Here?

❖ Insurance capacity plentiful, percentage increases and

coming down

❖Watch insurance policy terms and conditions closely

➢ Driver exclusions

➢ Defense within limit

➢ Towing limitations

❖ Insurance rate stability for those executing in some way

on best practices

❖ Technology will have positive impact on results over time


Conclusion

Transportation Industry ChallengesDriver shortage

Traffic lanes vary

Hauling rate inadequacy

Strive to do a little bit better every day


Where Do You Go From Here

Is Your Driver Defendable? NY Business...Most accidents are not truckers’ fault –video...

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