Navigating the aftermath: How to handle a truck-involved crash

Mark Murrell

When one of your trucks is involved in a crash event, it’s a stressful situation. There’s a lot to manage between helping your driver and working with the other parties involved.

The first thing that sets people on edge is the number of players involved. The police? Sure. But that’s just the start. Remember it can also include governmental departments for the environment, plus insurance stakeholders, lawyers, paralegals, the media, bystanders, residents and more. Yikes.

Now consider two things: your driver will have to deal with any number of these folks right in the middle of having one of the worst days of his or her career (and probably while being in shock); and the next thing these stakeholders are going to do is call you. Will you know what to say and what resources to mobilize? I caught up with John Farquhar from Summit Risk Solutions and Rick Morgan of Links Consulting to discuss this issue and what fleets should be doing when a driver is involved in a collision.

Take care of your drivers

When one of your drivers is involved in a crash — after checking to see if they’re physically and mentally alright of course – give them support. Lots of it. They’re going to need it and you must help them understand their rights and responsibilities.

  • The police are going to talk to them, and your driver needs to know their rights (including what they should and should not be saying)
  • Their cellphone may be confiscated right away as evidence—the vast amount of information that can be gotten from the forensic data analysis of a phone has made cellphone confiscation an almost standard practice
  • Were they carrying hazmat? First responders will be asking them for details in order to manage the situation
  • Your driver will probably want to contact their family (which will be difficult when their phone has been taken)

From policy to plan

When the police, government officials and insurance partners call you, your team will need to be ready. And the press? If it’s a big event, they’re going to write a story about you, whether you speak to them or not. Know what you want to say to them when they call so you at least have some input in how you are portrayed in the media. If the accident is especially severe, with loss of life, or significant property damage, consider hiring a PR person for counsel.

All of this requires more than just having a broad-strokes policy; it requires serious thinking about who will play what role on your team, what their responsibilities will be and how you want to control the situation. It requires a plan. When building a crash response plan, here are five elements to consider:

  1. Have a “serious event” team at your company More than a vague acknowledgment that managing the crisis should be the responsibility of ‘management,’ have a dedicated set of people with specific responsibilities. For example, driver outreach—there should be one person who will be the driver’s first point of contact when they need help, and this person should be responsible for checking on the driver’s welfare, notifying loved ones, and generally walking them through the process. Don’t bounce the driver around by telling them to call this person for one issue and that person for another. They’ve been through enough, so make it easy for them. Another team member should be responsible for contacting insurance and legal stakeholders, and have a point person for dealing with the media. Smaller fleets may only have one or two leaders in the company available for these roles, but it’s still critical that there is a clear understanding of who is doing what.
  2. Don’t leave your driver to figure it out themselves Given the enormous stress they will be under; even well-prepared drivers will have a tough time remembering everything they need to do if they are in a crash (and that is assuming they aren’t injured). So, make sure they have simple, easy-to-follow protocols and just one number to call to get through to the serious event team at your company. What’s more, know how you will get a replacement phone to your driver if (or when) theirs is confiscated for evidence.
  3. Know what to say and what will be said Journalists will do whatever they can to find out about the situation and the people involved—and they will construct a story out of whatever they find. You can decide whether you want to give them information or not, but just know that they will write one either way. Make sure you know ahead of time what you want said, who is going to say it, and how (phone interview, email, etc.). Have that information scripted and available so the message you want to send is consistent. This also goes for passing information on to the rest of the company. Rather than letting rumors fly, make sure you are the one controlling the information flow to your team.
  4. Practice Table talk your plan as if you were actually in the situation and you just got the call from a driver. Have the team leader clarify roles, troubleshoot communication and generally get people used to stepping into these roles when needed. Even better, run a drill. Have a driver work with you to put in a call as if they have had a crash event, but lead the rest of your crash team to believe that it is a real event. Afterwards, you’ll be able to talk them through what went well and what didn’t and give them a taste of the kind of stress they will be under when it happens.
  5. Use your insurance partners If you’re stuck on figuring out what else your plan should have, reach out to your insurer for guidance. Not only do they have experience, but they’ll also be invested in making sure your plan is comprehensive (and they’ll be thankful you’re doing it in the first place).

Remember that a serious event for a fleet is a ‘when’ rather than an ‘if’; getting prepared for it to keep your people and company in control is a must do.

THE ONLY ROAD TO TORT REFORM

THERE IS A ROAD TO TORT REFORM…AND WE ARE NOT ON IT.

 

Doug Marcello

WHY IT MATTERS:  We have the power and ability to bring real tort reform by radically changing our approach and flexing our electoral power.

WHY WE ARE FAILING:  Our current course for tort reform is failing.  Aside from isolated success in the very few politically fertile states, our current strategy and procedures are not getting traction.

Continuing to play the same game, the same way is a prescription for failure.  Sure, PACs are necessary.  A necessary….  “Money is the mother’s milk of politics”.

But we will never win that game.  We are, and will be, outspent by those who reinvest in legislation and judicial elections from the 33%-40% they take from widowed and the injured.

We need to pivot to our strength and change the narrative.  Change it from a money game we cannot win to an electoral contest.

THE REAL ROAD TO TORT REFORM:  We have a power that none of the billboard lawyers possess—votes.  We need to flex our electoral power to repel this existential threat.

Trucking related businesses employ 8.4 million people.  This does not even include those who are self-employed. Or their spouses and partners.  Or their children and parents.  Or their friends.

In a time of a divided electorate in which a majority is determined by mere percentage points, trucking votes have power.

Trucking votes can be determinative. Electoral power personified by the mantra, “Truckers Vote”.

“SURE.  BUT HOW?”: Never has it been easier than today’s world of social media.  We can communicate directly to our people unfiltered by media intermediaries.

“Realistic?”  Consider that the death of a Tunisian shopkeeper sent shockwaves via social media that brought down entrenched governments with military force in an “Arab Spring”.  Our challenge pales in comparison.

Our road to real tort reform has four elements:

  1. Educate
  2. Motivate
  3. Flex
  4. Enlist

-EDUCATE:  Our employees and the public.  Of the existential threat of the billboard lawyers.  Jobs.  Consumer costs. Community support.

Of how the billboarders operate—did I say 33%-40% from the widowed and injured?  And then take their expenses from what’s left.  Litigation loans and funding.  Financing campaigns of the judges before whom they appear.

Educate them of our true story.  The lifeblood of America.  Drivers missing birthdays and anniversaries to deliver what we need and what we enjoy.  Million mile safe drivers and billions for safety.  Supporting the communities in which we live.

-MOTIVATE:  Motivation our people to vote for those who will protect and support our industry.  Motivation to vote to turn out those who don’t.

There are two sides—those who are for us and those who are not.  As a Texas politician once said, “the only thing in the middle of the road is yellow stripes and dead armadillos.”

-FLEX:  We need to show our electoral power by turning out and making our voice heard.  Forcefully.

The message needs sent—Truckers Vote.  And we vote for those on their side of the road.

The message that politicians can either be with those with the money or those with the votes.  Politician, its your choice.  And then it is ours.

-ENLIST:  The electoral mass of transportation is mighty but will be amplified by enlisting those in a similar position.  Medical industry.  Insurance.

Anyone in the crosshairs of billboard lawyers are our allies.  Our threat is their threat.  Our cause is their cause.  Our voices are amplified by unity.

“SOUNDS GOOD IN THEORY, BUT…”-Who is going to do it?  Where are you going to get the money?

-WHO?-We already have the infrastructure—National and state trucking organizations.  Starting at the top—ATA, TCA, NPTC,… Individually or, even better, united these organizations are at the vanguard of members and resources.

Then continue with the state organizations.  The grassroot entities closest to the members.

We have the “Who”.  It is just a matter of focused efforts as a unified front.  Educating, mobilizing, and enlisting their members for real action.  Action that can mean the difference between having or losing their business or their job.

A task force of trucking organizations—“Truckers United”—for the preservation of our industry.

“RESOURCES?”-“So who’s going to pay for this?”  “Where is the money coming from?”

First, we are talking about using existing resources focused on the existential threat.  Existing publications, emails, webinars, conferences,… Existing resources to educate as to the threat and motivate the response.

Over the last eighteen months I have given a presentation entitled “The Four Phases of Litigation” to numerous national and state trucking organizations and insurance meetings.  Many attendees were enlightened, if not shocked, by the threat and the strategy of the billboard attorneys. We need to extend the message as to why this is crucial as well as to the merits of our industry.

Second, we are not talking about massive expenditures.  We are not going to out-TV or out-billboard the enemy.  To do so is virtually wasting money.

We are talking about social media.  Generally free as a medium.

Maximized by messaging from the organizations and the allies.  Magnified by providing assets for posting by companies and employees.

Not the same old postings, but creative, captivating graphics and messages.  Why can’t our crucial messages be more impactful than an eighteen year olds stating his college football commitment.

Third, if increased funds are needed, let’s get it.  Like a WWII bond drive, we have noble cause and great need with funds dedicated to a specific use.

BOTTOM LINE:  Real tort reform requires a fundamental change in our attack.  To flex our electoral muscles driven by “Truckers Vote”.  To drive the effort by “Truckers United”  To do otherwise is to accept our fate with minimal progress.

CVSA’s Upcoming Training Courses for Industry

Hazardous Materials Instructor Training Overview Virtual Courses

CVSA will hold two Hazardous Materials Instruction Training (HMIT) Overview Courses. These virtual courses will introduce participants to a 10-step process that can be used to set up and implement an effective hazmat employee training program.

  1. Learn more and register for the March 12 course.
  2. Learn more and register for the April 30 course.

Hazardous Materials Instructor Training Course Series

CVSA is offering three HMIT courses for hazmat employers and instructors over five days in Burbank, California. You may choose to attend one, some or all the training courses. Separate registration is required for each course.

  1. Hazardous Materials Instructor Training Overview Course
    This course will introduce participants to a 10-step process that can be used to set up and implement an effective hazmat employee training program. Learn more and register for the March 18 course.
  2. Hazardous Materials Instructor Training Introductory Course
    This three-day introductory Train the Trainer course will provide hazmat instructors with the tools they need to confidently train hazmat employees on the requirements in Title 49 Code of Federal Regulations Subpart H in Part 172. The course will include instruction, presentations, work projects, team exercises and presentations, individual assignments and coursework, and a pre-test and post-test. This course also serves as a refresher course for current instructors who teach hazmat employees. Learn more and register for the March 19-21 course.
  3. Shipping Lithium Batteries Training Course
    Hazmat employee instructors will learn about lithium battery types, common uses, chemistry and safety; lithium battery classification in §173.185, including exceptions; marking, labeling, placarding and shipping papers, when required; emergency response and incident investigation; and undeclared lithium battery shipments. The course also includes case studies and the step-by-step process for shipping lithium batteries. Learn more and register for the March 22 course.

U.S. Industry Roadside Vehicle Inspection Training Course

CVSA will hold a U.S. Industry Roadside Vehicle Inspection Training Course the week of March 18-22, in Lowell, Arkansas. This training course will provide each motor carrier with the tools and knowledge to achieve compliance with the roadside safety regulations and a better understanding of the relationship between vehicle regulatory requirements and vehicle out-of-service conditions. The deadline to register is March 8. Learn more and register.

 

Shipping Lithium Batteries Virtual Training Course

CVSA will hold its virtual Shipping Lithium Batteries Training Course on April 3. This course will introduce the hazmat employee instructor to the types of lithium batteries and common uses; lithium battery chemistry and safety; lithium battery classification in §173.185, including exceptions; shipping papers, when required; marking; labeling; placarding; emergency response; incident investigation; and undeclared lithium battery shipments. The deadline to register is March 27. Learn more and register.

 

Canadian Industry Roadside Inspection Vehicle Requirements Training Course

CVSA will hold an industry roadside inspection training course on Canadian vehicle requirements April 22-26 in Mississauga, Ontario. The focus of the training will be on vehicle-related roadside regulatory requirements and out-of-service conditions in Canada. The deadline to register April 4. Learn more and register.

 

Hazardous Materials Instructor Training Course Series

CVSA is offering four hazmat training courses for hazmat employers and instructors over two weeks in Fairbanks, Alaska. You may choose to attend one, some or all the training courses. Separate registration is required for each course.

  1. Hazardous Materials Instructor Training Overview Course
    This course will introduce participants to a 10-step process that can be used to set up and implement an effective hazmat employee training program. Learn more and register for the May 6 course.
  2. Hazardous Materials Instructor Training Introductory Course
    This three-day introductory Train the Trainer course will provide hazmat instructors with the tools they need to confidently train hazmat employees on the requirements in Title 49 Code of Federal Regulations Subpart H in Part 172. The course will include instruction, presentations, work projects, team exercises and presentations, individual assignments and coursework, and a pre-test and post-test. This course also serves as a refresher course for current instructors who teach hazmat employees. Learn more and register for the May 7-9 course.
  3. Shipping Lithium Batteries Training Course
    Hazmat employee instructors will learn about lithium battery types, common uses, chemistry and safety; lithium battery classification in §173.185, including exceptions; marking, labeling, placarding and shipping papers, when required; emergency response and incident investigation; and undeclared lithium battery shipments. The course also includes case studies and the step-by-step process for shipping lithium batteries. Learn more and register for the May 10 course.
  4. Hazardous Materials Instructor Training Advanced Course
    This course is a 40-hour advanced Train the Trainer course for hazmat instructors who conduct training in Hazardous Materials Regulations for hazmat employees. Learn more and register for the May 13-17 course.

Canadian Industry Roadside Inspection Driver Requirements Training Course

CVSA will hold an Industry Roadside Inspection Driver Requirements Training Course on Canadian driver requirements May 6-10 in Rocky View, Alberta. The focus of the training will be on driver-related roadside regulatory requirements and out-of-service conditions in Canada. The deadline to register is April 18. Learn more and register.

 

North American Fatigue Management Program Train the Trainer Virtual Course

CVSA will hold its North American Fatigue Management Program (NAFMP) Train the Trainer Course virtually on May 29. This course is for motor carrier instructors who conduct or expect to conduct fatigue management training for commercial motor vehicle drivers and their families. The deadline to register is May 20. Learn more and register.

 

Canadian Industry Roadside Inspection Vehicle Requirements Course

CVSA will hold an Industry Roadside Inspection Vehicle Requirements Training Course on Canadian vehicle requirements June 3-7 in Rocky View, Alberta. The focus of the training will be on vehicle-related roadside regulatory requirements and out-of-service conditions in Canada. The deadline to register May 16. Learn more and register here.

 

Hazardous Materials Instructor Training Introductory Virtual Course

CVSA will hold its Introduction to HMIT Course virtually June 4-6. This three-day Introduction to HMIT Train the Trainer Course will introduce hazmat instructors to the tools they need to confidently train hazmat employees on the requirements in Title 49 Code of Federal Regulations (CFR) Subpart H in Part 172. The deadline to register is May 24. Learn more and register.

AT&T outage leads to ELD, tech concerns for truckers

Mark Schremmer

A large-scale AT&T outage on Thursday, Feb. 22 raised questions about how truck drivers can remain compliant if their electronic logging device stops working.

The short answer is that truckers may have to turn to paper logs to track hours of service, which was the norm before ELDs became federally mandated in 2017.

“If the ELD goes down and they can’t transfer the information … the safety official will use the ELD display or the printout to verify compliance,” said Tom Crowley, a compliance and regulatory expert for the Owner-Operator Independent Drivers Association. “The issue becomes if your ELD doesn’t retain that last seven days of information, you’d have to go back and recreate those seven days.”

According to reports, tens of thousands of AT&T customers lost cell service on Thursday. AT&T said that service was restored by Thursday afternoon and that it did not believe the outage to be caused by a cyberattack.

“Based on our initial review, we believe that today’s outage was caused by the application and execution of an incorrect process used as we were expanding our network, not a cyberattack,” the company wrote Thursday evening. “We are continuing our assessment of today’s outage to ensure we keep delivering the service that our customers deserve.”

A cell service outage can be extremely problematic for truck drivers, as the technology can be needed for a wide array of reasons including ELDs, dispatch, mapping, weather forecasts and engine control module updates.

This was the first large-scale outage since ELDs became mandated in 2017.

For truckers who started after the mandate, Crowley voiced concerns about how many know how to fill out a paper log.

“You have a lot of drivers out there who have only used ELDs,” Crowley said. “You hand them a paper log, and they’re going to get lost. People are so reliant on the ELD now to keep track of their time. The ELD tells them if they’re getting close to their hour limitations. Back in the day, that was up to the driver to keep track of their hours. I bet there are a lot of drivers out there who don’t have a clue on how to do a recap.”

OOIDA Executive Vice President Lew Pugh stressed the importance of truck drivers making notations for why they had to move to paper logs.

“Notate why you’re doing what you’re doing,” Pugh said. “Because five months from now and you get audited, we’ve all forgotten.”

Crowley noted that the U.S. Department of Transportation can request logs from up to six months ago.

Pugh said the concerns over a technology outage are amplified “a million times” when we’re discussing autonomous vehicles.

“If an ELD screws up, it doesn’t kill anybody. If an AV screws up, it’s a family of five,” he said.

Deadline nears for filings as Werner seeks review of nuclear verdict

Arguments at Texas Supreme Court recap liability and blame apportionment in fatal 2014 accident

John Kingston

Deadlines are looming for all briefs to be filed with the Texas Supreme Court as it decides whether to review the enormous verdict against Werner Enterprises growing out of a 2014 fatal wreck. With interest, the sum now stands above $100 million.

A primary brief was filed in October by attorneys for the Blake family, which suffered one death, one catastrophic brain injury and other injuries in the Dec. 30, 2014, West Texas crash.

On Feb. 15, attorneys for Werner (NASDAQ: WERN) filed a brief for the company, and earlier this month the Texas Trucking Association filed a friend-of-the-court brief.

The Supreme Court’s page dedicated to the case lists March 6 as the final date for any respondents to file with the court.

Werner’s legal brief reviews well-trod ground on the accident and what happened in a lower court in 2018, when the decision against Werner was first handed down.

But it and the Blake brief also weigh in on the issue of extending liability out to Werner, as it appears clear that the trucking industry is concerned that precedents set in the case could impact future verdicts against carriers.

The facts of the accident are not in dispute. A pickup truck heading east on Interstate 20 in West Texas driven by Trey Salinas and ferrying members of the Blake family hit a black ice patch, streaked across a more than 10-yard-wide median and crashed into a westbound Werner truck driven by Shiraz Ali. Winter storm watches were in effect. One of the Blake children died, and a second was severely injured. Other passengers had less serious injuries.

The Blakes’ core argument is that Ali had not sufficiently slowed his truck to compensate for the weather. If he had, the Werner truck would not have been where it was when the pickup driven by Salinas crossed the median.

In its brief, Werner’s attorneys summed up the trial court’s ruling as saying that Ali “owed a duty to reasonably foresee that the Blakes’ vehicle might careen into his path.”

In apportioning blame, the lower court jury assigned 70% to Werner on one of the key questions of liability and 30% on another liability issue. On the former question, Salinas’ blame was assessed at 16%.

The arguments leveled against Werner by attorneys for the Blakes in their attempt to put blame on the carrier involved such disparate issues as driver training (along with a borderline personal attack on the person who filled the company’s role as head of training), the demand for on-time delivery, and the lack of a control system that could have instructed Ali to get off the road.

Appeals court upholds lower court ruling

The lower court award of just under $90 million was appealed, and ultimately the full Court of Appeals for the 14th District of Texas grabbed the case before a three-judge appellate court panel could issue its ruling. In a 5-4 decision, the justices ruled in favor of the Blakes. (Interest fees on the initial award resulted in the case being worth more at every stop through the judicial system).

The briefs filed by attorneys for the Blakes and for Werner both provide significant discussion of the “Admission Rule.” Attorneys for the Blakes describe the rule as “[barring] derivative-liability claims like negligent training and supervision when the employer concedes vicarious liability.”

They said the rule was “once the majority rule [but] the modern trend is to reject the rule.”

The Admission Rule is a “relic” of a period before juries could hand down very specific proportionate blame for an accident, according to the Blakes’ attorneys, and “conceals all the ways the employer contributed to the harm except its driver’s conduct, resulting in a fictional apportionment where much of the employer’s responsibility is redistributed among other parties.”

Dissent cited by Werner on issue of Admission Rule

Justice Randy Wilson, in a dissent to the 5-4 vote, wrote that the Admission Rule holds that if an employer acknowledges one of its employees “was acting in the course and scope of his employment when the employee allegedly engaged in negligent conduct (that) bars a party allegedly injured by the employee’s negligence from pursuing derivative theories of negligence against the employer.” His minority argument was that the Admission Rule should have barred the enormous liability claim against Werner, which employed Ali.

Attorneys for Werner concur and say the issues in the case could be precedent-setting. The brief says the “question [has] never [been] definitely resolved by this Court: whether a claimant injured by a person acting in the course and scope of employment may pursue derivative negligence theories against an employer” if the employer concedes the worker was performing duties for the employer.

Werner’s brief called Wilson’s dissent “powerful” but conceded that while courts recognize the Admission Rule, they aren’t in agreement on what its impact can be.

By not limiting liability down the line, the Werner attorneys argue, it effectively defined a driver’s duty as “one owed to the whole world.” “If affirmed, the trial court’s judgment will establish that a driver and his or her employer may be held liable for injuries to other motorists no matter how improbable, fantastic, or farfetched,” Werner said in its brief. “Because that result has no basis in Texas law, reversal of the trial court’s judgment is necessary.”

In its amicus brief, the Texas Trucking Association says the Admissions Rule helps provide “appropriate boundaries for argumentation on employer liability and reduce the likelihood of error.”

“Had Ali been driving outside the course and scope of his employment, [the Blakes] may have been able to use derivative liability theories like negligent hiring, training, entrustment, or supervision to find Werner responsible for Ali’s actions,” the association writes. “But when an employer stipulates to course and scope — as Werner did here — the employer’s negligence is no longer in doubt, so long as the employee is found to have been negligent.”

Werner attorneys also are raising the issue of the charge to the lower court jury, saying it improperly mixed issues that they believe should have remained separate, affecting the final verdict.