Puke And Rally! CSA And SFD

What a great movie!  And what a great analogy of what FMCSA seems to be attempting to do with regurgitating up CSA data in the form of the new proposed Safety Fitness Determination.

For those that haven’t heard, FMCSA has proposed a new rule to replace the existing SafeStat system that is currently used to rate carriers (FMCSA Issues Proposed Safety Fitness Determination Rule).  The existing rule, which primarily relies on on-site investigations of carriers and some roadside data, has a three-tiered rating of Satisfactory, Conditional and Unsatisfactory.  Because the system relies on on-site Compliance Reviews, and limited resources of FMCSA, it is difficult to keep up in rating carriers.  And FMCSA has come under fire lately for some carriers who should have been put out of service that caused accidents.

So in their infinite wisdom, FMCSA has decided to propose a new rule that would simply rate carriers as Fit or Unfit and do away with on-site reviews.  Sounds easy enough.  The problem is the new system proposes to use raw data accumulated by the CSA system, a system we all know is flawed to say the least and doesn’t necessarily correlate with an increase in crashes.  Keeping it at its simplest, a carrier could be rated Unfit by failing two or more BASIC scores (being in the worst 1% of carriers for Driver Fitness, Vehicle Maintenance and HazMat Compliance).  But in order to be rated to begin with, a carrier has to have enough roadside data.  FMCSA touts that this new system will allow them to assess and rate more carriers (upwards of 75,000 a month) than they do now (15,000 a year).

Here is where it gets a little dicey…Vigillo, a company that monitors CSA scores for carriers, looked at this and found some interesting issues (Doing the math: CSA doomed, fitness proposal useless).  Under FMCSA’s proposed rule, Vigillo found that only 51,000 carriers are eligible to be rated, compared to 98,000 trucking companies with CSA scores, from a total population of 1.6 million in DOT’s April 2016 database.

Of those 51,000 eligible carriers that could be rated under the new system…only 67 of them would be declared Unfit!  Do the math…51,000 carriers eligible to be rated (because they have enough data), 67 of which are unfit = 1,550,000 carries unrated.

I attended a great webinar on Safety Ratings last week that was put on by Frederic Marcinak with Smith Moore and Leatherwood.  Terrific job!  Frederic pointed out some pretty basic pros and cons to the new system:

  • Pros:  Elimination of Condition Ratings; Not compared to peer carriers as in SMS; Accident evaluated based on preventability
  • Cons: Continued reliance on CSA scores

Vigillo concluded that while the proposed system might seem fine, without CSA or a meaningful safety rating (remember, 1.5 million don’t have enough data to be rated), anyone interested in evaluating a carrier (shipper, broker, insurance, etc.) has to look to the raw data in CSA, data which we know is flawed, comparing one carrier to another.

And this, Vigillo concludes, “is children playing with dynamite. If you don’t understand the math behind the measures, they are completely incomparable.”

MY FEAR:

I feel like the above speaks for itself.  But here is what is not said that concerns me…even less learned than shippers, carriers, brokers, trucking insurance, etc., on this stuff are jurors and judges.  Plaintiff’s attorneys have begun an all out assault on trucking.  And they use this very data to tell a story that trucking companies are not safe.  They instill fear in jurors to think “well that could have been me or my family member”.  And when jurors are scared of a company that is “unsafe”, they hit us hard.  Really hard.  We are the next big pockets and we are just beginning to scratch the surface, I think, of where plaintiffs go from here to attack us.

We have to know this, understand this, and be prepared to defend it.  I’ll steal the words from Vigillo’s CEO to conclude this post: “This is probably the most important thing that I’ll leave you with. If you don’t understand how to talk about the BASIC measures, they’re going to use them against you.”

 

We’re Under Attack!!

Okay, so maybe I exaggerate.  But bear with me…

It’s been a minute since I posted.  Primarily because I had the pleasure of speaking and presenting at the Defense Research Institute’s Trucking Seminar two weeks ago in Chicago.  If you’re not familiar with DRI, I encourage you to check out their website and consider joining and signing up for the Trucking Committee if you’re involved in the trucking industry and desire to stay informed.  It’s a great organization and one I’m passionate about.

I had the opportunity to speak and present with Doug Betkowski, Corporate Director of Claims and Litigation for Swift Transportation.  Doug and I got to speak on the topic that was the subject of my very first blog post (Why I Love The Trucking Industry And You Should Too!).  Since that time, that post and the subject matter has taken on a life of it’s own, and kind of become my rallying cry for our industry.  And low and behold, that silly post three years ago culminated in my speaking to about 600 people involved in this industry.  Guess a blind squirrel finds a nut every now and then!!!

You can find the PowerPoint from the presentation in the Resources section on this blog.

When I got back from the conference, a good friend of mine in this industry, Clint Cox, sent me an email with an article from the Huffington Post. You can click the link and read the article, but here are just a few excerpts:

  • “broader trend of declining safety on the roads after decades of progress — a trend that the United States Congress has aided and abetted by loosening safety rules even as both truck drivers and trucks are being pushed to their limit”
  • “as the economy has recovered, the carnage has been on the rise. In 2013, the most recent year for which finalized statistics are available, 3,541 wrecks killed 3,964 people — an increase of 17.3 percent in just four years”
  • “Congress has been caving, very quietly, to lobbying from trucking interests that want to roll back, block or modify at least a half-dozen important safety regulations. Significant parts of the hauling industry have long opposed many of the federal rules governing working hours, rest periods, size and weight limits, and safety standards”

Trust me when I tell you, the article gets worse.  If this is the monster industry we’re involved with, I fold.  Hell, “carnage” sounds awful!!!!

But it’s not.  And we know it’s not.  What articles like the Huffington Post wholly fail to tell the public are statistics like those revealed in the most recent FMCSA statistics on large truck crashes:

  • Even though large trucks traveled 4 billion more miles in 2014 than in 2013, fewer of them were involved in fatal crashes and fewer people died in those accidents
  • The number of large trucks involved in fatal crashes decreased by 5% from 2013 to 2014, falling from 3,921 to 3,744
  • The total number of fatalities involving large trucks slipped 2%, to 3,903 in 2014 from 3,981 in 2013
  • In the past 10 years, the number of large trucks involved in fatal crashes was down 23%, with fatalities down 25%. This occurred even though the number of miles traveled by trucks increased 20%

More importantly, articles like the Huffington Post wholly fail to tell who we are, what we do, and that without us, our society has nothing.  ATA got it right with the slogan “Trucking Moves America”.

I’m not going to rehash my first blog post, or the presentation I gave 2 weeks ago.  I invite you to read both, and if you have any questions or wish to discuss further, I love this stuff and am happy to talk about with you.

Suffice it to say, we are under attack.  But we’re not a monster.  We HAVE to tell our story.  We have to scratch, fight and claw for what we know is true and what we hold dear to us.  We should be proud of who we are, what we do and our record behind us.

Because if we aren’t telling our story at every turn possible to anyone that will listen, no one else is!

Another Side Of The Coin: Rear Facing Cameras

I’m going to take the easy road out this week on my post.  Not because I’m lazy, but because I read this article today, which relates directly to my post last week (Can We Talk?), provides a good perspective of another side of the coin on this issue.

Whether you are an attorney, a carrier, trucking insurance or a driver…there is application in this post to consider.  Attorneys can use the footage to defend you; carriers can use the footage to train drivers and increase safety, insurance companies are giving out cameras or even requiring their insureds to use them to decrease premiums; and drivers use the footage to back up their stories.  I hope you find the same.

In an email today from FleetOwner, Sean Kilcarr wrote a piece titled “Are truck-driver facing cameras a necessity?“.  Below are excerpts from the majority of the article (click the link if you wish to read the full text):

Tom Kretsinger Jr., president and CEO of American Central Transport, does not mince words when it comes to the subject of installing driver-facing cameras in commercial trucks: Cameras are the only way to truly ensure a fleet’s drivers are following the proper safety protocols.

“Here is what I’ve found to be true: We set a safety policy with no real way to enforce it because at the end of the day a driver will do what they want to do,” he explained…

“That is why inward-facing cameras are so critical,” Kretsinger stressed. “Yes they don’t like them. But continuous improvement is what this is all about. [Cameras] tell us who to coach: the ones who text, who use the cell phone, who drive unbelted. The ones who exhibit the behaviors that increase their crash risk.”

Gary Johnson, director of risk and compliance for Lytx, added during the presentation that truck drivers on average make 163 decisions per mile, with many of them split-second in nature, which is why distractions pose a serious safety risk.

“Drivers have to deal with a ton of things out on the road and successfully dealing with them comes down to behaviors,” he said. “They have a very hard job and a lot rides on their performance. But the carrier’s job is hard as well. Winning repeat [freight] business so heavily depends on safe operation.”

Johnson noted that 95% of vehicle collisions result from driver-related human behaviors, with several indicators drawn from a recent “naturalistic” study of how behaviors correlate to crash risk:

  • A driver who experiences a near-collision is six times more likely to be involved in an actual collision within six months;
  • A driver that receives a traffic violation is 4.3 times more likely to experience a collision within six months;
  • And a driver that regularly follows other vehicles too closely, with less two seconds worth of following distance, is 4.8 times more likely to experience a collision within six months.

“Driver attitudes such as disregarding seat belt and cell phone use when behind the wheel also correlates to other behaviors such as speeding, following too close and unsafe lane changes,” Johnson added. “So the question is how do you ensure drivers are safe and keep performing at a top level? The only way is to know what is going on inside the cab every day.”

American Central’s Kretsinger stressed that there is also an onus upon the carrier to spell out its safety policies in detail and enforce them fairly…

Yet Kretsiner pointed out that such a safety “vision” must be proactive to work effectively; one centered on coaching when it comes to the use of driver-facing cameras.

“We use event data recorders and cameras to prevent accidents, not pay claims afterwards,” he explained. “If we know what our drivers are doing, that often can lead to changes in what we are doing.”

For example, if a driver who’s been great for three years and suddenly gets a 15 mph over the limit ticket, are they a bad driver now?

“Do we fire them? Or if we know what they are doing can we correct the behavior that led to that ticket? Knowing what a driver is doing versus speculating on what they are doing allows us to be more proactive,” Kretsinger said. “We have the technology today that can let us control our future. I am a big believer in this.”

MY TAKE

Last week I said I’m not sure where I fall on driver-facing cameras and that I can see both arguments.  I can understand the driver’s reluctance, and more importantly, I can understand not creating a minefield of data for plaintiff’s attorneys to troll.

However, I think I have made my mind up now.  Carriers are not playing “Big Brother” with their drivers.  I firmly believe that carriers respect the independence that drivers desire.  And I think drivers deep down know that.

But what I know more than anything is that behavior corrected up front reaps dividends on the back end.  Driver-facing cameras allow for carriers to recognize, address and correct risky behaviors before an accident occurs.  And that’s really what we want right? To prevent accidents and be as safe as possible?

One thing that resonates with juries, who inherently hold a bias towards our industry, is carriers who want to be safe, implement measures to increase safety, and actually follow through in training drivers on safer behaviors.

I believe if you are inclined to use driver-facing cameras, use them.  But if you do, act on the use the information available to you to make a safety difference with your fleet.

Can We Talk?

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I broke one of my goals for the year.  Three and half months into the year and I broke a goal already.  I told myself that for consistency on this blog and the sake of not losing readers (by my count I’ve amassed a whopping 3 followers over four years, so I can’t afford to lose any!), I would post once every week but in no event miss posting at least every other week.  It’s been four weeks since my last post.  Epic fail.

But I’ve got an excuse…like rear ends, everyone has one and they all stink, but it’s an excuse nonetheless.  My wife and I are selling our first house of 12 years and trying to buy another one.  I’m sure many of y’all have done this before.  I of course bought my existing house.  But I did it very naively…bought it from someone I knew, no realtors were involved, no home inspections, etc.  It was a smooth process.  But this time around, holy smokes!  I would feel more comfortable defending a drunk truck driver in a rear-ender and have confidence of winning the case than I would in the process of dealing with negotiating a home inspection (the house I’m selling is 46 years old, so there you go).  April 8 can’t get here quick enough! (closing date if that wasn’t obvious).

Anyway…I had a post planned for the past several weeks and just never got around to posting it.  I was excited about it and it played off the Making a Murder series from Netflix (for those that know what I’m talking about, get fired up).  So today my intention was to post just that.  But I decided not to.  Stay tuned for that next week…

I decided on a different post after I attended my monthly meeting at the Mississippi Trucking Association Safety Council.  I almost skipped and I’m glad I didn’t.  At our meeting today, Larry Bizzell with FedEx, also an ATA Board Member, came and spoke.  And what he did was very impromptu and made for one of the more meaningful meetings I’ve attended for awhile.

Larry came to speak about technology and what carriers are doing in the way of technology on their trucks.  He came with a PowerPoint presentation and prepared to go through his slides and speak of his experience in what his company is doing with the use of technology to increase safety.  But his PowerPoint didn’t work.  So we talked.

And what we discussed was beautiful and engaging and what I want to encourage everyone to start doing.  Larry started off by speaking of FedEx’s experiment with forward and rear facing cameras to expose how accidents actually happen, as well as their use as training tools for drivers on ridding of “risky behaviors” that are observed on cameras.

There is a lot of chatter on whether to use cameras or not.  And if you do use them, do you use only forward facing cameras to expose accidents, or rear facing cameras as well to expose driver behaviors that could be detrimental to safety.  I’m pretty sure I’ve read 3-5 articles just in the past week debating the pros and cons of both.

There was no consensus in our meeting.  Representatives of various carriers expressed their concerns with both.  If forward facing cameras show you are at a fault for an accident, what good are they?  And rear facing cameras invoke concerns over privacy and driver discontentment.

I expressed my views in the meeting from an attorney’s standpoint and safety/risk adviser. Personally, I am a fan of forward facing cameras.  I received a case a few weeks ago that had a forward facing camera and it will likely prove we are not at fault for the accident.  And frankly, I’m not surprised as statistics are on trucking’s side…if truck drivers only cause about 17% of accidents, the cameras will help you much more than they will hurt.

And if they do show you were at fault, as an attorney, I can do a lot more with bad news upfront than I can on the back end.

As for rear facing cameras towards the drivers, I get the concerns.  I believe they can be a valuable training tool.  But I also recognize the problems drivers have with them and the fact that the training material can become a hotbed of data that a plaintiff’s attorney seeks in an accident:  “What risky behaviors did this driver have?”; “What training was done in response?”; “What about other drivers?”; “Why did you keep this driver on after X amount of risky behaviors identified?”.  You get the picture.

I don’t know where you fall on what is good and what is bad.  I’m not real sure where I fall.  If you ask me at this moment, I would say that forward facing cameras should be a must in your arsenal and I’m not sure about rear facing cameras.

But here is what I do know…have a discussion.  Do what we did today…a bunch of people who love the trucking industry and we sat around and discussed what could help and what could hurt.  We didn’t solve the world’s problems….But we contributed something to the industry as a whole by talking and sharing.

Talk and share soon.  We will all benefit from it.

Cargo Claims: They’re Bringing Sexy Back!

Cargo claims….when being sexy fails!!!!! Seriously, there is very little that can be said or written in a way that makes cargo claims sound attractive or interesting. In the world of trucking litigation issues, they’re kind of like the Wheaties of cereal. They’re just plain as plain can be unless you pour enough sugar on them (except for the Wheaties box that had Michael Jordan on it back in the day…that thing was freaking awesome).

Michael_Jordan_Wheaties_1988

Well, there is a sugar for cargo claims that make them a little more palatable and something to pay attention to. And that’s money. The money they cost and the effect on your bottom line.

Cargo claims can become very expensive and pricey, whether you are a shipper, carrier or broker. I searched high and low for the average cost of a cargo claim to a motor carrier. I’m sure it’s there, but I can’t find it. However, a couple things I did find help put it in perspective. Global financial impact of cargo loss exceeds $50 billion annually. And the average amount of cargo loss from a theft is approximately $150,000 (you can imagine the same amount could occur in a bad accident).

And one more way to look at it…figure up your probability of loss. If you carry 100,000 shipments and of those shipments, 2,000 become damaged, you have a 2% probability of damage to every load. Doesn’t seem like much. Except…say the typical value of the load you carry is $200,000. With a 2% probability of loss, for every load that you carry, you lose $4,000.

And it would seem easy to say that if you aren’t responsible for cargo damage, then don’t pay it and fight it. But that becomes very problematic when you consider that many brokers and carriers pay cargo claims, no questions asked, to keep the relationship with the shipper in harmony.

Or what becomes even more problematic is a scenario like this:

Carrier has a freight claim filed against it. The broker invoked a right under the contract with the carrier to deduct the claim amount from the account receivables that the carrier is owed by the broker. Yet the underlying claim was due to shipper error in loading the cargo and the insurance company for the carrier refuses coverage based on that fact. So in the end, the carrier pays for the claim even though he really did nothing wrong. What remedies are available to the carrier to recover money lost for the claim?

Responsibility for Cargo Claims

Cargo claims against a carrier are either based on the Carmack Amendment or a contract (for carriage).

Carmack claims, as they are often called, are a statutory based system that was created for national conformity of carrier liability for goods damaged or lost under a valid bill of lading. In a nutshell, statutory means that “it is what it is” and whether a carrier is responsible or not can be pretty rigid. This also means that under Carmack, the statutory scheme will always apply; cargo claims based on state law are preempted. This statutory scheme typically provides certainty and clarity to a carrier for cargo loss.

However, today more and more shippers are calling for waiver of Carmack protections, primarily because Carmack limits the liability of a carrier (i.e. market value of goods hauled established by a written declaration of the shipper, any delay damages and cost of transportation). Further, special and consequential damages against the carrier are typically not allowed unless notice of the potential for these type of damages was provided before the bill of lading was received by the carrier.

Defending a Cargo Claim

As stated above, under Carmack, if you damage the shipment, you have to pay for it. But there are some defenses to a cargo claim under Carmack.

In order to defend yourself against a cargo claim filed under Carmack, you must:

  • Prove the carrier was free of negligence; AND PROVE
  • The damages were caused by an act of God;
  • The damages were caused by an act of the shipper (i.e. loading/unloading); or
  • The damages were caused by some inherent vice or nature of goods.

But what if you expressly waived Carmack protection in a contract you signed, or for some reason the Carmack scheme doesn’t apply, and you are certain you were free from negligence? You still may have defenses, but you are also very likely to be bound by the language of the contract and be subject to breach of contract claims and remedies. Further, you may be subject to damages that are not so certain as those stated above.

My Take 

The bottom line…Be proactive defending cargo claims. Just like you would in a catastrophic accident, begin amassing your defense immediately:

  • Begin your investigation immediately
  • Notify the claimant of the right to inspect the goods
  • Review the Bill of Lading for its terms that apply to the cargo
  • Obtain statements from all those involved
  • Consider all the evidence needed to defend the claim and start gathering it
  • Watch for Carmack claims artfully pled as state law claims
  • Educate drivers on making extensive notations to a Bill of Lading when damage is found

And above all else, for goodness sake, carefully read any contract from a carrier, shipper or a broker before you sign it. And lobby for contract language that protects you just as much as it protects the other party. Don’t solely chase the business without considering how the contract may effect you because it’s a matter of when, not if, you are exposed to a cargo claim.

If You Lose A Penny On Every Sale, You Can’t Make It Up In Quantity

Here is my “Trucking Lawyer Public Service Announcement” of the week for you…

I heard someone say years ago at a conference that there are enough truck wrecks in the country that trucking defense lawyers aren’t going to starve waiting on their next claim/case assignment.  And it’s true.  In 2013, large trucks (which does include sub-Class 8’s) were involved in approximately 342,000 accidents.  And of those, 95,000 of the accidents involved injury.

I’m no “rocket surgeon”, but simple math equates that to about 1,900 wrecks per state, so that makes for plenty of potential accidents for defense lawyers to defend.

The ultimate point of the speaker was that some accidents and cases need to be thoroughly worked, and others needed to be disposed of and settled quickly.  Maybe even before lawyers get involved.  If you get one that resolves quickly, hold your breath because you probably won’t pass out before the next one comes your way.  And I completely agree with that statement.

But I’ve also always been honest with my ramblings on this blog, so I won’t stop now.  And I’ll say what most people think and want to say, but don’t, despite nodding their head at the same time agreeing with comments like the above speaker made…trucking defense lawyers want to thoroughly work the cases they’re assigned because that is what we are “suppose to do” and that generates income.  Whooooo!  There it is, BandAid ripped off.  Hell, I’m guilty of it.  I have a wife and two kids and I want to make an honest dollar doing what I’m suppose to do and support my family.

But I’ll be honest again, and I hope you believe me…my above mindset started to change when I heard what that speaker said.  In my every day practice since that time, I’ve seen that by doing what is best for the client and the case, even if it means disposing of a claim before it even gets off the ground, my business is more fruitful and my work more appreciated because I respect and seek out to implement what is in the best interest of the client, not what is in my best interest.  You reap what you sow I guess, and I’m sowing more having subscribed to this philosophy.

Trucking cases take immense attention to detail. Because of the FMCSA regs, policies and procedures of a company, and the damages that are at stake in a trucking accident, trucking cases can often spiral out of control if an attorney doesn’t stay on top of the case and keep the client’s best interest at the forefront.

What I am suggesting is that your attorney should be intimately involved (i.e. know what you hope to accomplish and how quickly you want to accomplish it) with the case and be proactive. I’m suggesting acute involvement, being aggressive and thinking outside the box for new ways to resolve the case quickly. Plaintiff’s counsel is certainly going to be doing this, so why shouldn’t the trucking defense attorneys!

MY TAKEAWAY

  • Communicate with the client at the beginning of assignment and learn what their expectations for the case are, AND fulfill those expectations with your abilities.
  • When called about an issue with a client, or maybe called to an accident scene to investigate, don’t just stand around and observe. Be active in the investigation and begin your “lawyering” immediately. Talk to the people with knowledge (responding officers, witnesses, the person/company making a claim against you, etc.) and point out things that are relevant to the investigation.  Get to know them. This early communication is the best opportunity to get a leg up. These same people are likely going to be instrumental to your defense later on.
  • Be flexible in how you work your case and consider that your way may not be the way the client wants the case handled.
  • Provide an evaluation as early as possible, and when you do, provide a real evaluation. Attorneys are hired to make decisions, so don’t skirt the issue and report that you don’t have enough information. Use what you have available and update as things progress.
  • As accurately as possible, project the defense costs for the life of the case. Of course things are going to pop up that are unexpected, and those situations should be discussed with the client at that point, but any attorney who knows this industry and has defended cases can project a realistic budget so the client can plan their desired outcome.
  • If the other side has a lawyer, meet with that lawyer early on and let them know your impressions of the issue/case and what you intend to do to protect your client. This forthrightness can work wonders when later attempting to resolve a case.
  • Define the issues right out of the gate. Trucking cases, particularly, have a unique character to get sidetracked quickly and take on a life of their own. When this happens, it takes away from the true facts of the case and the focus becomes on inflammatory issues (think CSA scores, Drivers files, medical compliance, etc.)
  • I hit on this in the Anatomy of a Trucking Case series, but to reiterate the importance…you will encounter claims of the plaintiff that often lack proof, even after considerable discovery on the issues. Don’t allow these claims to float around unaddressed but attack them early with motions to dismiss, summary judgment motions or motions in limine.

I’m not a saint.  And not going to claim to be.  But I’ve seen by adopting this philosophy that it benefits my client’s best interests.  And when I’ve benefited my client’s best interests, they have in turn come back to me tenfold and benefited my best interest by involving me in more work.

If you lose a penny on every sale, you can’t make it up in quantity!  Help your client get rid of claims and cases that need to be disposed of quickly.

I’m Your Huckleberry!

So you have an accident, or maybe even a cargo claim, contract dispute, comp claim or employment issue…how many of you can relate to claims and lawsuits getting out of hand, feeling like a shootout at the OK Corral?  Hopefully if it does, you or your attorney is as bad as Doc Holiday!

But let’s be honest, no one comes out alive when things get out of hand.  And things getting out of hand may take on many different forms:

  • Plaintiff’s attorney dragging their feet
  • Lack of oversight by defense counsel
  • Apathy by a transportation company
  • So forth and so on

Some cases will be justified in long drawn out litigation and require a lot of discovery before making it to trial or settling.  Could be because of a hard-headed plaintiff or plaintiff’s attorney, questionable liability/damages that should be defended, or maybe it’s just time to fight one on principle.  And when these happen, we must embrace them for the right reasons.

But a majority of claims and cases should be pursued to the quickest resolution, whatever that may be.  You hear the term “Rapid Response” often, but this is more like “Rapid Resolution” (credits to Clif Cameron for where I learned about this concept).  Rapid Resolution is just an understanding that the financials of a case effect the bottom line of transportation companies and/or their insurers, and it is important to do whatever you can to quantify the risk as quickly as possible and resolve the case before a large financial risk becomes a problem.

We typically think in terms of trucking accidents, but the suggested concepts should apply to any issues that a carrier or insurer may encounter (personal injury claim, cargo claim, worker’s comp claim, employment claim, contract disputes, you get the picture).  Because at the end of the day, regardless of what the issue is, the suggestions are geared towards resolving the issue as rapidly and efficiently as possible because it makes economic sense, even when you may not be responsible.

MY TAKE

Early resolution is never a given.  There are a multitude of X factors that can occur that make early resolution unachievable, even when you try your hardest to do so.  But here are some practices to help you try:

  1. Rapid Resolution starts with Rapid Response.  That may mean on-the-scene investigation when an accident happens, be it personal injury or cargo.  It could be talking to people that know something in regards to comp and employment claims.  Or maybe you should just call up the shipper to discuss contract provisions.  It may be calling me!  Regardless, the premise is all the same….do something!  Just keeping taking the next step, whatever that may be, to gather as much important information as early as possible.
  2. Investigate early and gather witness statements.  For accidents, talk to your driver first and get their story.  Then take that story to any witnesses and let them know what your driver says happened.  Witnesses are the greatest, and yet the worst, source of what happened.  If 10 people witness the same accident, you will get 10 different accounts of how it happened.  Know your version and share that with witnesses when they share what they saw.  Then take it all to the responding officer, rinse and repeat.  Do the same thing for disputes in other areas.  Most times you never get to pop that “smoking gun” on someone by holding it back.  Lay out your version, stand by it, and go through the front door instead of the back.
  3. Gather all any and all documents related to whatever issue you have immediately.  Trip records, drivers logs, maintenance records, driver files, contracts, First Reports of Injury, personal files, driver applications, etc.  Comb over them and make sure that everything is on the up and up.  And if there are discrepancies and issues, start discussing those things with the responsible person within your company and figure out why the issues happened.  It’s much better to know these issues early on so you can prepare to defend them if needed, instead of learning of them for the first time when plaintiff’s counsel requests the documents.
  4. Meet with the opposite party or their attorney.  Let them know your intentions to resolve the issue/accident early.  If they know you are interested in resolving the case, they are more likely to cooperate with you to get you what you need.  This is not weakness.  In fact, your preparedness will show the exact opposite of weakness and let them know what the negative outcome for them may be if they don’t resolve early.  It will also likely have the psychological effect of getting them to stand down and stop their investigation.
  5. In the event a suit is filed, explore early motions to file.  Even if the motion is not completely dispositive of the whole case, it may whittle down the issues and take the wind out of their sails.
  6. With personal injury accident cases, or worker’s comp cases, before or after suit, request a medical release signed by the plaintiff and request all medical records and bills immediately.  Request pre- and post-accident medicals to get a whole picture of the plaintiff to know if the alleged injuries are legit. And a practice point: medical providers are notorious for dragging there feet to respond to your requests.  Give them a reasonable time to produce the records (15-30 days) and when that time is up, file a motion to show cause and request attorneys fees.  You can bet they will jump on it then.
  7. Purchase medical liens. I heard this one at a trucking conference I attended a few years ago and I love it.  In personal injury accident claims, one of the big hold ups that plaintiffs have in settling cases is how much they are going to put in their pocket after they pay liens.  By purchasing any liens against a plaintiff’s potential settlement, you can negotiate the lien down yourself and also be able to leverage this lien against the plaintiff (for instance, forgiveness of the lien for a favorable settlement to you).
  8. Consider arbitration/mediation early on, even before a suit is filed.  I have always been amazed at the psychology of mediation and why it is so effective, but it is.  Conducting mediation early on allows all the parties to gather together and lay it all out there.  With less than 5% of cases going to trial, there are very few reasons to hold back the proverbial smoking gun.  Let the other side know what you have and what your bottom line figure is.  It resonates with plaintiffs if they know they can get some money early on instead of waiting for a year or more.
  9. Finally, evaluate the case immediately and communicate this within the company.  Without an early evaluation, pie in the sky numbers are meaningless.

So there are my ramblings.  Take them for what they’re worth.  And to boast slightly, I think you will find them worth a lot if you use them.

And with that, I’m out of here!  This little guy turns the big 5 today and we’re gonna throw down together like cowboys at an Old West saloon this afternoon!

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