Keeping the Ambulance Chasers at BayFebruary 11, 2015
Trucking is a high risk, low margin business. Think about how much you or ACT makes on one load. We have to haul a lot of loads to make a reasonable amount of money. Managing the pennies make the difference between a successful driver or company and an unsuccessful one. ACT and its drivers and contractors are pretty good at this. But it could take several years of work to pay for just one bad wreck. A catastrophic wreck could put any trucking company out of business.
One of the things I worry about every day, both as a lawyer and as a leader of a business responsible for the jobs of many people is the shock loss, the bad wreck that can come out of the blue. We are constantly fortifying our castle, building a moat and trying to keep the barbarians from storming the gate. At ACT, we are about integrity and that means we are “by the book,” period, no exceptions, no excuses. We may not like or agree with the thousands of laws out there, but we will and do follow them. This lets us sleep better at night.
I know that if one of our drivers is involved in a bad wreck the first thing that will happen is that lawyers will race to sign the injured party up on a contingent fee contract which pays the lawyer 30 to 40% of what he or she can collect. The second thing that will happen is that the lawyer will go on a “fishing expedition” to use the broad legal tools of discovery to find anything that can be used to blame the driver. The initial volley will obtain driver logs, driver cell phone records, data from the engine computer and anything else that can be used to criticize the driver and ACT. We move quickly to preserve all of this to the best of our ability because if evidence is lost, we are accused of spoliation and the issue becomes our loss of evidence rather that what caused the accident.
A University of Michigan Transportation Research Institute study found that truckers are actually pretty safe. They studied 8,309 truck related crashes and of those, the car driver was assigned the fault 81 percent of the time. This should make us feel good, but don’t think for a moment that the fact that an accident is not our fault will prevent a lawyer from suing. And I have a secret for you…when as much money is at stake as what is at issue in a bad truck wreck, people lie. What appears to be the cars fault can turn into a “he said, she said” case. Or the lawyers may find something to criticize that had nothing to do with the wreck. What looks like an open and shut case often isn’t.
The average trucking company carries $1 million in liability insurance. This is often not enough to pay for a bad verdict. We carry much more than this but there is really no amount of insurance one can afford to pay for the really catastrophic accident with multiple injuries or fatalities. Some catastrophic wrecks become big news locally or nationally. Often the driver is also at risk for criminal prosecution, which can result not only in a loss of career but also incarceration. I have seen some cases that became national news where the prosecuting attorney was talking about filing charges even before all the facts were known.
What can we do to protect ourselves in this environment? We do a lot in the way of driver training. We screen drivers carefully. We worry about our CSA score. We require Smith System Training and invest heavily in safety. But there is more we can do.
One of the most economical ways we can protect ourselves is through technology. We have been testing event recorders. I have been very impressed with what we have seen. They are relatively inexpensive, especially compared to other technologies, but even more effective. What these devices do is in the case of an event (caused by G forces) is record video, 8 seconds before and 4 seconds after the event. The video accurately shows the problem. Any more than this is not necessary, and too much recording can create extemporaneous facts not needed to determine the cause of the accident.
The event recording is then transmitted for analysis during night hours and available to our safety department and the driver, through a mobile app, for review. From what I learned from other companies using this, in most cases it shows the truck driver was not the one at fault. When we are contacted by an attorney, they email the video and in most cases this stops the case from proceeding any further. It is a simple way to protect ourselves.
The event recorder can also be used to improve ourselves. It is used as a training device to identify bad habits (of which you may not even be aware) and coach out of those bad habits. This makes you a better driver and lowers the chance that we will be in a bad accident in the future. It strikes me that this is a “win/win” proposition.
Some may prefer the cheap video recorders they sell in the truck stops. I will tell you right now that I do not want these in ACT trucks. They record too much video which can be used by lawyers to criticize you for things not contributing to the wreck. I do not know who has these and this makes it hard to preserve evidence to prevent a spoliation claim. In short, don’t try to be your own lawyer. They’ll outsmart you every time. The old saying is that those who represent themselves have a fool for a lawyer…and a fool for a client. Let us provide proven technology at no cost to you.
After testing event recorders, talking with drivers and learning how we can all benefit, we have made the decision to install these throughout the fleet in 2015. We have signed the contract and committed. This is consistent and supports our core values of integrity and safety and it is the right thing to do…protect you, protect all who work at ACT and protect those we share the road with.
Happy and Safe Trucking, Tom