It's the phone call you've been dreading. On the other end is a truck driver from your fleet calling in to report that he's been in an accident. The image that pops into your mind as you listen to him try to sort out the facts is one of sharks circling. And with good cause: If it's anything other than a fender-bender, chances are that investigators will be called in. And if you've bungled your accident response, you're toast.
You can't blame the investigators, of course: they're only following the money. "Liability levels on commercial trucks are significantly higher than they are on cars," says Truman Wayne Nicolaus, owner of Nicolaus Investigations of Wilton, Calif., who was a driver for 28 years before becoming an investigator. "A lot of attorneys are now specializing in trucking-only cases because there is a lot of money to be made. Many of these attorneys are really sharp. They know the motor carrier safety regulations, and they will tear you apart."
Your best defense, of course, is to stay up to date on those regs yourself and keep your operations in full compliance. But just as important, you should make sure your drivers know exactly what to do in the event of an accident. Specifically, they need to know what facts to gather at the scene. This evidence—and your analysis of the material—could help protect your company and the driver from legal liability. It could even help prevent future accidents.
What to do at the scene
In the aftermath of an accident, even the coolest of drivers tends to get pretty rattled. For most, having written step-by-step procedures to follow at the scene is helpful. "You should provide written instructions in a packet in the cab with details of what drivers should and should not do, and should and should not say," says Nicolaus. It's for their own good, as well as yours: Drivers can and probably will be named in any suit that arises, he explains. "The 'pockets' are the company's, but the driver will still have to defend his position."
What should be in that instruction packet? Nicolaus offers the following guidelines:
- Contain the damage. The first thing the driver should do is pull over to the side and stop.He should check the victim(s), if any. "Don't move anyone," Nicolaus advises, "but give first aid if you can, such as stopping any bleeding." Then take any necessary steps to mitigate the situation. For example, make sure there is no debris on the highway that could cause another accident. "If a fender or mudflap is in the road, the driver should remove it," he says. The driver should also put up cones or triangles to warn oncoming motorists of the accident site.
- Get pictures. Each truck should be outfitted with a disposable camera—-or even a video camera—in the cab. The driver should take snapshots of the scene from different angles and different distances. "A picture is worth a thousand words,"explains Bill Praetz , president of TLC Transportation Management Safety Consultants of Fresno, Calif., who spent 27 years with the California Highway Patrol.
But random snapping won't do. "The driver needs to take good pictures. A lot of times, when we come into a case later on, we find that the pictures are almost wort hless,"says Praetz. "The driver must be systematic in taking the photos."He should go back aways from the scene and start walking toward the scene, taking pictures at various points along the way, then repeat this process from various angles and directions. "When the driver is up close," he adds, "he should get photos of the license plates so that the vehicles can be identified."
Color photos are always better. "Black and white photos don't do justice to the condition of vehicles and the damage they have sustained," explains Praetz. And the camera should have a flash in case you need to take photos at night, adds Bob Eichler, president of Technical Services of Vancouver, Wash., which investigates trucking accidents. "The driver should take photos of tire marks, debris fall locations, etc. Tire marks are particularly important." - Do your own fact-finding. Drivers should collect as much information as they can before law enforcement arrives and even while law enforcement is present. "The police may or may not gather a lot of information, because their first responsibility is public safety, not recording data," explains Eichler. "If the accident seems minor and there is not a lot of blood, the police may not bother to conduct a thorough investigation. They may just take care of the injured and secure the site so no one else gets injured."
That could be a relief at the time, but trouble down the road. Even though the accident may not seem major, your company could still end up being involved in a big case. For example, there may be claims for a lot of property and vehicle damage, and/or delayed medical claims. - Zip your lips. "One of the biggest mistakes drivers can make is following the police around and making excuses, offering apologies or offering money for repairs," notes Praetz. "They should allow the police to investigate."
Nicolaus agrees. "Give only the information the police ask for, such as drivers license number, medical certificate, and a short statement, such as, 'I was driving eastbound in the second lane, and the other vehicle cut me off.' "Don't provide a lot of detail. The less information drivers give, the better off they and your company will be. The more drivers say, the more will go down on the report ."I've seen reports that showed that the first thing the driver said to the highw ay patrolman was, 'Gee, I'm sure sorry. I just looked down for a second,' or, 'I was thinking about my wife and kids.' The lawyers will interpret that as admitting fault."
The driver should also leave his log book alone, updated only to the last time he stopped before the accident. "If the driver offers his log book to the police, they will assume he has been playing with the book right there," explains Nicolaus.
One other thing, following an accident, the driver will likely need a drug test—which can pose difficulties in out-of- the-way locations. "If the accident is way out in the desert and too far from a testing facility, you need to have a written explanation of that," adds Nicolaus.
Meanwhile, back at the office
What the driver does at the scene of the accident counts, of course, but so does the company's response in the following days. When a major accident occurs, many companies automatically fire the driver. They think they can protect themselves if they can say, "The first thing we did was fire the driver." Nicolaus believes this is a big mistake, for two reasons:
"First, you appear to be admitting that the driver is guilty," he explains. "It's difficult to represent a company when the company has taken action showing that they think the driver is guilty—by firing him. If you thought he was innocent and that his story was believable, you wouldn't fire him."
Second, it alienates the driver. You make an enemy out of the one witness who's on your side. When the deposition rolls around,the driver will ask himself,"Why should I help them? They fired me." At the very least,his testimony is likely to include statements like, "They make me run hard. They don't care about my log, as long as I get my job done." A better move, says Nicolaus,"is to remove him from driving duties, but provide him with some other type of employment in the facility."
Next, if you hire an outside investigator, be sure to cooperate by providing all of the information you have available. "When we are called in and talk with a company, we want to know how well the rig was maintained," says Eichler. "We want service records to make sure the brakes, steering, suspension and tires are good." As for the accident itself, "we want the highway accident documentation," Eichler says. That includes reports, witness names and numbers, and photos.
Remember, too, that time is of the essence. Conoco Phillips, based in Tempe, Ariz., makes every effort to interview the driver as soon as is reasonable after an incident has occurred. "The sooner you have the conversation, the more detailed and accurate the information will be," explains Dan Brown, the company's director of light oil trucking.
Smart & Final, a Los Angeles-based foodservice distribution business that operates warehouse grocery stores, takes it a step further—acting quickly to put together a team to conduct an internal investigation. "Not only does our safety manager review each accident," reports Dan Smith, corporate director of transportation,"but we also have a safety committee composed of the transportation manager, a fleet supervisor and three drivers who are chosen by their peers." This committee reviews accidents and determines accountability—whether the driver should be held responsible or whether it was out of his control. "If we decide the driver is accountable," he continues, "we have an internal point system for assessing penalties. We may also provide him or her with additional training."
Driving home the lessons
Hustling those drivers into training courses is one way to reduce future accidents. Another is to meet with drivers and discuss measures that will reduce the likelihood that various types of accidents will happen again.
The most common cause of accidents is carelessness—hurried drivers who don't pay attention to everything around them, according to Praetz. "A perfect example is making a right turn and not observing vehicles or other things to the side," he reports. "This is one of the most common causes of accidents in trucking. It happens way too frequently. I recently investigated an accident where the driver made a right turn and took out a fire hydrant."
A surprising number of accidents take place in parking lots, which seem to be more and more congested these days, reports Praetz. "Many drivers don't take the time to look around as they're driving and before they make turns or back up."
Praetz is even seeing fatalities at truck stops. Drivers sometimes pull out and crush other drivers who are right beside them inspecting their own trucks.
"The solution is awareness training," he emphasizes. "Management should impress on drivers how accidents are occurring and how important it is to pay attention."
Smith agrees. "Good accident investigation can provide information that can be used in training to prevent future incidents," he says . "We also have safety meetings throughout the year with drivers, at which time we review previous accidents and what can be done to prevent them in the future."
"All accidents are different, obviously," adds Brown. "We try to use the information that is gathered from all accidents to provide a platform for training and sharing of information, so that not only ConocoPhillips —but the industry as a whole—can learn from the knowledge that is gathered through the investigation process."
