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Safety Insights
SAFETY & MAINTENANCE
Safety Insights Be aggressive with your accident defense
By Douglas Marcello
Too often trucking companies and their insurers hunker down after an accident, waiting for a billboard attorney to make their move. Worse yet, even after receiving the letter of representation, they sit by idly waiting for the plaintiff to dictate the time and place of the action.
Because too many see “defense” as meaning “defensive”. This is a terrible legal strategy.
Aggressive Defense
A major failing in trucking defense is that it is seen as synonymous with defensive. Passive, re ac tive, “defensive defense” rarely if ever works. Aggressive, proactive “defenses” often do. And they do so by flipping the script on an opponent, even one that appears to be in a stronger position.
Too often, trucking companies and their insurers only defend the last 24 ft. of a 94 ft. long contest. They concede the early going, even the middle going, and hunker down for a final skir mish. You need to take the fight to them. Particularly after the letter of rep. More to come on that.
So what can you do? Hope the plaintiff’s attorney won’t sue? Avoid antagoniz ing them and maybe they’ll be kind and gen tle? How’s that been working for you? Sounds ridicu lous, but it is too often the strategy of most. If you can call sitting by passively and waiting for the attack a strategy.
Be Prepared
I’ve written and spoken a lot about preacci dent preparation but here are a few high lights to consider: l Have an accident response plan in place now; l Train your drivers; l Thoughtfully select and train whoever is going to talk about the accident; l Preselect experts and ensure their 24/7 availability; l Know what you need to do to preserve data-ECM, telematics, video, etc.; l Review your safety plan, manual, training and prepare as if you will have to defend it at trial; l Identify who is going to be the “face of the company” in a suit and prepare them; l If you were on the witness stand, what evidence would you want to present? Develop it now. After the accident, it’s just back-fill.
Accidents Happen, Be Ready
When an accident happens, act imme diately. Investigate. Document. Get state ments from witnesses. Do something!
We have an advantage that none of those daytime TV attorneys have — and that’s im mediacy. We know about the accident before any of them. If we are not ready to act imme diately, we will have squandered our greatest of assets — time and preparation.
Don’t rely on your insurer. If they act im mediately, great. If not, protect yourself. In a world of high insurance rates and significant risk retention levels, it’s your money. You can’t afford to sit by idly if your insurer delays in assigning an adjuster or opening a claim.
One of my grandmother’s favorite sayings was, “The Lord helps those who help them selves.” Taking matters into your own hands quickly can make all the difference in the world. Do whatever you can to help yourself. Take the slack out of the postaccident chain.
Post Accident
This is the phase where the “hunker down” and “defensive defense” is tragically the norm. “What can we do except wait until they sue?” The answer is, “a lot.”
Sue them first. If you have an argument as to liability, and you’ve suffered damages (PD, cargo, downtime), sue them first. This gives you a jump on the other side by being able to subpoena records and propound discovery against the claimant who, at this point, is rep resented by the auto insurance company attorney.
More importantly, you have the potential to anchor jurisdiction in the location of the accident rather than allowing the plaintiff to drag you into a “hell hole” on the theory that you are a trucking company and can be sued anywhere. This can save you millions and the industry as a whole hundreds of millions of dollars.
Someone recently told me that they use subro gation in all their cases, and they often get their money without having to sue. They’re missing the point. You might not want to get your money right away. Other -
