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Keven Moore: Be prepared to defend from nuclear verdict involving one of your company vehicles


For any business today — with any size fleet of tractor trailers, box trucks, delivery vans, utility trucks or vans, or even passenger vehicles— the potential for disaster exists. No business with any size fleet is free from this threat, and in today’s litigious society without the proper written fleet policies, safety practices, and insurance coverage; this could spell disaster to your balance sheet, and the solvency of your business.

As I mentioned in a recent column, a disturbing litigation trend over the last ten years has been the rise in nuclear verdicts, which are jury awards that surpass $10 -$20 million.

The problem is that business owners and establishments, simply can’t afford to carry such limits on their insurance coverages, or even on their umbrella policies; and such judgments can close the doors to many businesses today. 
 

Keven Moore works in risk management services. He has a bachelor’s degree from the University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He is also an expert witness. He lives in Lexington with his family and works out of both Lexington and Northern Kentucky. Keven can be reached at kmoore@higusa.com

Trucking companies are bearing the brunt of these increasing trends in the courtrooms and there are ple nty of reasons to take a closer look at what is happening in courtrooms across America, as nuclear verdicts are occurring with increased frequency. Many different social influences are contributing to the rise in nuclear verdicts, including the work of plaintiff attorneys, who are using a strategy known as reptile theory to elicit anger from jurors.

In courtrooms across America plaintiffs’ attorneys are essentially portraying the defendants’ collective conduct or omissions as a threat to the safety of the public, and the jury is awarding such large judgments as a deterrent needed to protect the community at large.

The fact is when you hand over the keys to a company vehicle, you are entrusting the financial health and wellbeing of your company to that driver, so make sure to do your due diligence to protect yourself from a negligent entrustment lawsuit that can bankrupt your business.

To counter these recent trends, as a risk management and safety professional I have been advising clients that it’s vital to adhere to and exceed the Federal Motor Carrier Safety Regulations (FMCSR). It’s not just that you have the proper written policies in place, you must communicate these policies and enforce all safety policies.

If you have a distracted driving or cellphone usage policy, businesses need to be able to document that they did their due diligence from a company safety practice. Not only should you issue a safety policy, but you need to effectively communicate it with your drivers, then you need to have the driver acknowledge that they received it with his/her signature, and then you should go the extra mile and provide specific safety training to reinforce the company’s position.

Driver selection is probably the single most important risk control countermeasure a business can take as it relates to controlling their risk exposure once that driver leaves their parking lot. Selecting only drivers with good driving records and continuing to monitor their driving records is essential. Do not rely on the insurance agent or insurance carrier to inform you when a driver has developed a poor driver status.

You need to be proactive. You should at least at a minimum be running MVR’s at least annually, and if you are trying to show good faith in a courtroom to head off a nuclear verdict in the future, I would suggest bi-annually.

From a risk management point of view, employers have too much at stake to leave juries speculating if the employer could have done more. For instance, are you providing periodic driver safety training such as defensive driving or distracted driving?

In a prior case where one of our insureds was involved in an at-fault fatality, our client was able to head off the punitive damages, because they were able to produce multiple records where I had personally provided proactive driver safety training frequently where this driver had attended.

In a recent prospective client visit with one of our brokers, we learned that this trucking operation had just recently been involved in an at-fault fatality. He was alarmed and concerned about the potential litigation that was sure to happen. The President of this company admitted his fears and concerns but went on to say that they haven’t taken any steps to prepare for discovery, preserve evidence, or clean up some of their potential inadequacies.

When involved in an fault severe accident, your company should preserve and prepare the following evidence that will be requested during the discovery process of any future litigation. They will specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired, or changed in any matter:

• The entire personal file of the driver involved in this collision.
• Daily logs for the day of the collision, and for the six-month period preceding the collision.
• All existing driver/vehicle inspection reports for the vehicles involved in the collision.
• All existing maintenance, inspection, and repair records or work orders on the vehicle involved in the above collision.
• The insured’s complete driver file to include, but is not limited to: Application for employment; CDL License; Driver’s Certification of Prior Traffic Violations; Driver’s Certification of Prior Collisions; Driver’s employment history; Inquiry into driver’s employment history; Pre-employment MVR; Annual MVR for last two years; Annual review of driver history; Certification of road test; Medical examiner’s certificates for last two years; and Drug testing records; HAZMAT or other training documents.
• Photographs, videos, computer-generated media, or other recordings of the interior and exterior of the vehicles involved in this collision, the collision scene, the occurrence, or relating to any equipment or things originally located at or near the site of the occurrence.
• The driver’s post-collision alcohol and drug testing results.
• Insured driver’s cell phone, cell phone logs, text message logs, and cellular data. The name of their cellular telephone service provider, the primary name(s) on the insured driver’s cellular telephone account, and the insured driver’s cellular account number and cellular telephone number.   
• Any data and/or printout from on-board recording devices (telematics), including, but not limited to, the ECM (electronic control module), or any on-board computer, tachograph, trip monitor, trip recorder, trip master, or other recording or tracking device for the day of the collision and the six months preceding the collision for the equipment involved in the collision.
• Any post-collision maintenance, inspection or repair records or invoiced concerning the vehicle involved in the collision.
• Any trip reports, dispatch records, or trip envelopes regarding the driver or vehicle involved in this collision for the day of the collision and the thirty (30) day period preceding this collision.
• Any and all e-mails, electronic messages, letters, memos, or other documents concerning this collision.
• Any drivers’ manuals, guidelines, policies, rules, or regulations given to drivers such as the one involved in this collision.
• Any reports, memos, notes, logs, or other documents evidencing complaints about the driver in the collision.
• Any downloadable computer data from the vehicle’s computer system to include but not be limited to Electronic Control Modules, Event Data Recorders, Eaton VORAD collision warning system, and other similar systems.
• Any DOT or PSC reports, memos, notes, or correspondence concerning the insured driver, or the vehicle involved in this collision.

From a litigation standpoint, taking a proactive risk management position will afford defense counsel the ability to document your company and driver safety efforts, which will carry great weight with any jury and should lessen the punitive damages if you find yourself in such an unfortunate situation in the future.

Be Safe My Friends


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