By Alyssa Adams
The moment an accident occurs is not the time to put your company’s accident response plan into place. Having an accident response plan in place, including training your dispatchers on the policy, will allow you to act as soon as an accident occurs. The faster you act, the better prepared you can be to prevent a lawsuit or claim, and the better prepared you will be to defend yourself in the event of a lawsuit. Also, by acting fast and taking a proactive approach, you can potentially save money and litigation fees. Even if a suit is filed, taking a proactive approach gives you the opportunity to collect evidence from the scene, surveillance, statements, or social media evidence to use in your favor at trial. Below are the top 5 tips for you to keep in mind when preparing to respond to an accident.
- Act Fast and Be Prepared
- The faster you act, the better you can respond.
- To effectively respond, you must start well before an accident occurs.
o The best place to start is by training your dispatchers on how to respond when an accident call comes in. Train your dispatchers on:
- What they should be asking the driver,
- What information to obtain, and
- What additional individuals, including attorneys or field adjusters, to contact to help with the response.
- Do not takes statements from your driver
- Do not have your driver make any written or recorded statements regarding the accident.
- Advise your driver not to give any statements to anyone or talk to anyone else about the accident.
- One thing that you can do to completely protect your driver’s version of events, is to immediately have an attorney speak to the driver.
o Everything said to the attorney would be confidential and protected by attorney-client privilege and could not be used later against the driver.
- Bring in outside help
- You may want to have an attorney speak with your driver so that it is protected by attorney-client privilege.
- You will want to hire an independent adjuster to help investigate the accident.
o Hire an independent adjuster to call the other driver and witnesses to obtain their statement.
o If you believe that there may be security cameras in the area, from other businesses or entities, you can have the adjuster go out to the scene to try to obtain any videos that have footage of the accident.
o Hire an independent adjuster to go out to the scene and take photographs.
- Hire an accident reconstructionist to inspect the vehicle, do a download of the black box of the vehicle, and to review the accident site for to determine how the accident happened.
- Social Media
- Have you or your attorney’s office search for information concerning the accident.
o Check Facebook and other social media.
- Family members of the person hurt in the accident may comment on news articles or post about their loved one’s injuries.
- Have your attorney or independent adjust run a public record search and a social media search for the claimant.
o Make sure to keep checking on social media to see if they mention their injuries.
- Usually once the claimant retains an attorney, they will be told to take their social media down, so it is important to find it immediately, if you think there could be future litigation.
- Social media is very important and can sometimes be the piece of evidence that you need to prove the claimant is not injured. However, you must act fast on this. If you wait until a lawsuit is filed, it may be too late.
- Preservation of evidence
- Make sure to preserve any evidence from the accident.
o This would include pulling the driver’s logs for the week before the accident.
- If a preservation letter is received from the claimant’s attorney, make sure that you save anything that is included in the letter so that you are prepared in case of potential litigation.
o If not saved, you can be accused of spoliation and may have sanctions issued by the Court.
o If a preservation letter is received, have counsel send your own preservation letter to have the claimant preserve any evidence they have regarding the accident.
This is not an exhaustive list and assumes accident response measures are planned prior to the happening of the accident. We would be happy to provide accident response packets, forms, and checklists for free – just send an email to Alyssa Adams at aa@saxtonstump.com .
US government can’t confirm whether ELD mandate has improved safety on the road, but studies suggest otherwise
Rachel Premack
On a Tuesday evening in March, Lisa and Lee Schmitt left their home to move a 42,000-pound load of pre-cracked, pre-whipped eggs.
As truck drivers, every minute of their move was accounted for. They ate dinner at their home in Wisconsin and left around 8:30 p.m. At 11 p.m., the Schmitts arrived in the tiny town of Gaylord, Minnesota. Their customer, a multimillion dollar supplier of “value-added eggs,” allows truck drivers to park overnight — a rare treat. Because of federal regulations that date back to the 1930s, the Schmitts weren’t able to start their day until 9 a.m. the next day.
They hit a snag. At the value-added egg behemoth, the warehouse managers found a mechanical issue in their trailer and had to get it fixed next door.
It took hours for the mechanics to fix the issue — and even more hours to get loaded. The Schmitts started driving at 2 p.m. on Wednesday, even though they came on duty five hours earlier.
The Schmitts were watching the clock. They had to stop driving by 11 p.m. or else face a hefty fine and a black mark on their safety rating. But they couldn’t park their truck too far from Cedar Rapids, Iowa, where a restaurant supply giant was awaiting the pre-cracked eggs. The drive should only take six hours, they said, but a nasty traffic jam or equipment issue could delay them.
Their Cedar Rapids appointment was at 9 a.m. Thursday. If they missed it, they might have to wait hours to get unloaded. It could skewer their jobs later that week. The customer might even refuse to work with them again.
They made it to Cedar Rapids at 8:30 p.m. on Wednesday. Their customer didn’t offer parking for truckers, so they grabbed one of the few parking spots available at a nearby truck stop.
By 9 a.m. Thursday, they were rolling up to the restaurant supplier to offload the pre-whipped eggs. Then the mad dash started again.
Like nearly every other one of America’s 2 million truck drivers, the Schmitts are only paid for the miles that they drive. Their egg load was an unusually well-paid $5 per mile. (The current per-mile average pay right now is $2.34, according to the FreightWaves National Truckload Index.)
The pay-per-mile structure incentivizes truck drivers to drive as much as they can. As a common trucker refrain goes, “If the wheels aren’t turnin’, you’re not earnin’.”
That’s why truck drivers like the Schmitts have abhorred a federal law that came into effect around five years ago: the electronic logging device mandate.
Starting Dec. 18, 2017, federal law required truck drivers to digitally log their working hours in their cabs. Truckers can drive no more than 11 hours a day within a 14-hour window, according to a law that dates back to 1938. A federal study estimated that the ELD rule would prevent 1,844 crashes and 26 deaths annually.
Five years later, it doesn’t appear that truck drivers’ most-hated law has ushered in that reign of safety.
Fatal crashes involving a large truck, per 100 million miles traveled by truck, increased by 5.4% from 2016 to 2020, according to the most recent federal data. One 2019 study found that unsafe driving activities increased as a result of ELD enforcement.
Formal enforcement around digital logbooks began April 1, 2018. Truck drivers could use either an ELD or an older piece of technology no longer permissible today.
The Federal Motor Carrier Safety Administration, which oversees the enforcement of the ELD mandate, declined to comment on record about the impact of the rule. The percentage of drivers with speeding violations slightly increased from 4.45% in 2018 to 5.07% through 2023, according to FMCSA data.
The mandate was not entirely FMCSA’s doing, though. A 2012 congressional mandate required FMCSA to enforce ELD adoption, said Duane DeBruyne, who served as the FMCSA’s spokesperson from 2005 to 2021.
First, FMCSA had to pursue a cost-benefit analysis on the law. In addition to considering and sponsoring scientific research, federal agencies pursue comments from the public in these cost-benefit analysis. DeBruyne said this public comment is the most crucial part of this process.
“Thousands of comments concerning detention time, scarcity of parking, the uniqueness of many types of trucking operations and commodity loads were thoroughly reviewed and considered — as were comments from state and local commercial motor vehicle law enforcement entities and from safety advocacy organizations as well as private citizens,” DeBruyne wrote in an email to FreightWaves.
It’s obvious that folks behind the wheel of an 80,000-pound vehicle should be well rested. Still, the issues that make a truck driver’s livelihood so challenging aren’t fixed by the ELD mandate — and some believe the controversial law has exacerbated them.
A decades-old law that was often ignored
Since practically the beginning of trucking last century, the federal government has tried to curb the issue of overworked, exhausted drivers.
In 1938, the federal government began requiring truck drivers to abide by hours-of-service rules. This law currently forbids truck drivers from driving more than 11 hours in a 14-hour window. They are then required to log 10 hours off duty.
It’s a smart idea. But for as long as the HOS rules have existed, truck drivers have tried to skirt around them. Paper logbooks helped make that happen.
“We drove what we had to do to get it there,” said Lee Schmitt, who became a truck driver three decades ago.
Karen Levy, a Cornell University assistant professor, made the case for this in her new book, “Data Driven,” which reveals how digital surveillance has shaped trucking. Levy argues society is practically built on skirting some rules.
Most would likely be shocked if they were fined, say, for driving 66 miles per hour in a 65 mph zone or jaywalking when there are no cars around. Few expect any consequence for those technically illegal choices. Nor would anyone expect to be fired for, say, pretending to have a dentist appointment when they were sneaking off to a hairdresser or spending an hour a day on Facebook. Of course, people should generally drive at a safe speed and get off Facebook — but it’s hard to picture being a member of society without, well, some slight rule breaking.
For a truck driver, rule bending made the job doable. The ELD mandate, and the HOS rules it enforces, took away a truck driver’s ability to “fudge around the gray areas,” said Alex Scott, an assistant professor at the University of Tennessee.
“I don’t think anybody would think it’s a good idea for a driver to drive 20 hours a day,” Scott said. “But a driver should be able to extend their driving time by 15 or 20 or 30 minutes to get to a safer place to stop or because traffic was bad that day or to stop and eat lunch.”
That three-hour window in the 14-hour work window should theoretically provide that flexibility, but some argue it’s not enough. During the Schmitts’ recent egg haul, for example, the couple could have run into traffic heading to Cedar Rapids or had delays in getting loaded. Or they could have arrived on time but been unable to find parking in Cedar Rapids — and forced to spend hours looking for parking.
For any number of reasons, the Schmitts could have ended up 30 minutes away from their destination by 11 p.m. that Wednesday, when they were mandated to stop. HOS regulations require them to shut down for 10 hours. That would mean they would be 30 minutes late to their 9 a.m. appointment on Thursday — potentially jeopardizing the entire job, future jobs planned for that day or their relationship with that customer. (Customers, after all, aren’t likely to let truck drivers use their bathrooms, let alone be warm and fuzzy for a late driver.)
Prior to 2018, the Schmitts may have simply faked the numbers in their logbooks if they faced a hurdle. They’re no longer able to do that.
“Was it illegal? Did we go over?” Lee said. “Yes, but 99% of the people would go to bed when they were tired.”
Other issues afoot
Even with the best of intentions, exhausted truck drivers do kill dozens each year. One federal study cited in the 2015 ELD rulemaking indicated that truck driver fatigue was a factor in large truck accidents that killed on average 85 people per year between 2005 and 2009.
The sleep schedule of a truck driver is challenging to predict, in part thanks to all of the disruptions they experience on the road. Annette Sandberg was the FMCSA administrator from 2002 to 2006, during which she oversaw major revisions to HOS rules. She found that regulators had to rely heavily on sleep studies on factory workers. There weren’t many studies that concerned how truck drivers sleep.
But Sandberg, who continues to work in motor carrier safety, said the job of trucking isn’t comparable to a factory worker. Truck drivers don’t work in a relatively controlled environment, like a factory. They work on the highways, where traffic can hamper their job, and with customers who might take hours to unload them. Factory workers clock out and go home. Truck drivers live, sleep and eat in their workplace — the truck. One’s shift is arguably never-ending.
“Truck drivers have always been kind of a different challenge to regulators in particular because the work that they do is very different,” Sandberg told FreightWaves.
What’s most unusual about truckers is that they do not receive overtime pay. The Fair Labor Standards Act of 1938 guaranteed workers minimum wage pay and time-and-a-half pay if they worked more than 40 hours in one week. Several types of workers were exempted from this policy, including truck drivers. (You can read more about why that is here.)
That makes their time practically a free commodity. When truck drivers are waiting at warehouses to be loaded or unloaded, their employers don’t have to pay up. Truck drivers are expected to wait up to two hours unpaid each time they visit a warehouse. Many wait much longer.
Another key example of that is parking. Truck drivers spend on average nearly an hour each day looking for parking, according to an American Trucking Associations study.
It translates to lost cash. A 2018 FMCSA study found that detention is associated with an annual reduction of $1.1 billion to 1.3 billion in for-hire truckload truck driver wages. And time spent looking for truck parking translates into a 12% annual pay cut.
Detention time hurts safety. That same 2018 study found that an increase of just 15 minutes in time spent waiting increased the expected crash rate by 6.2%.
It comes back to that core issue: Drivers are only paid for how many miles they drive. And, with ELDs, drivers have to fit as many miles as possible in a federally mandated window — even though there are countless things that could consume that time that are out of their control.
By tracking a driver’s location, ELDs have the potential to significantly cut down on detention time. Trucking companies can now point to data that shows just how long their employees had been waiting at a customer’s warehouse and possibly demand payment.
That hasn’t happened yet. One core reason: If retailers and manufacturers started paying trucking companies for the amount of time drivers really worked, we’d see the price of everything go up.
Racing against the clock
Under current HOS laws, truck drivers are capped to working 70 hours in an eight-day period. Even in this remarkably long workweek, many truck drivers find that they have to push themselves to make ends meet. And Sandberg said many of her clients — executives of trucking companies of all sizes — still bemoan the 14-hour workday limit.
“Anytime I have any carrier — large, small, medium — and they start whining about 14 hours not being enough, I look at them and I say, ‘How many hours a day do you work?’” Sandberg said.
Scott of the University of Tennessee was the lead author in the 2019 study that found the ELD mandate increased unsafe driving activities among drivers who work for small fleets or are owner-operators. The study also found that the mandate did not decrease and may have even increased the accident rate for that type of driver. (By the late 2010s, most large fleets had already installed ELDs in their trucks. The mandate thus had the most marked effects for small fleets.)
That lack of improvement in the accident rate may be because Scott and his co-authors found that truck drivers were also more likely to drive more aggressively, change lanes more frequently or speed.
“The thing about a driver’s day, though, is that it’s constantly filled with interruptions,” Scott said. “You hit traffic you weren’t expecting. You get delayed loading or unloading. Inherently, a driver’s schedule needs some flexibility in it.”
That flexibility is now gone, which can result in unsafe driving.
“When you take away that flexibility, that can cause those behaviors,” Scott said. “In fact, some of the drivers said, ‘Hey, that’s what we’re gonna do. [We’re] gonna be racing against the clock.’”
It’s possible that the ELD drove out experienced truck drivers, worsening the driver turnover
The ELD’s biggest impact on trucking isn’t one that is more challenging to capture with studies. Paul Marhoefer, a truck driver and musician, said it eroded something deeper that attracted him — and countless others — to the industry: the independence. That’s not just the independence of working without a boss looking over your shoulder, but the independence of doing a good job.
“There always was a sense of wanting to be a good hand,” Marhoefer said. “I know how antiquated and almost corny that sounds.”
Indiana native Marhoefer became a truck driver in the 1980s. He said, for longtime truck drivers like himself, there’s a desire to take ownership and do what had to be done. It’s a job that’s essential to today’s society, after all; if all U.S. truck drivers stopped working today, Americans would see food and medical supply shortages in a matter of days.
Taking on an extra gig and getting the job done isn’t as easy as it once was, with an e-log riding shotgun in nearly every big rig today. Marhoefer said that’s eroded some of his pleasure from the job. Being tracked by an electronic device isn’t exactly rewarding, either.
Another thing has added back that joy: cold, hard cash. Since the ELD passed, Marhoefer said he’s gotten seven raises from his current employer. Some of his coworkers are pulling six-figure salaries running “dead legal,” he said. The median salary for a truck driver sits around $48,000.
“I’ve gotten so many raises since e-logs have come into effect,” Marhoefer said. “They just keep throwing more and more money at us because of all the attrition.”
There are no studies that prove that scores of talented truck drivers fled the industry as a result of the ELD mandate. A so-called worker shortage has also afflicted most industries since the coronavirus pandemic. But plenty of drivers threatened before the rule passed to quit the job if a device was tracking them. Many claimed to make good on those claims, even spurring one U.S. congressman to introduce a bill to address ELD-sparked quitting.
Turnover is perhaps one of the biggest issues that the trucking industry faces. Turnover rates at large truck fleets exceed an absurd 90%, a rate that’s similar to Panera Bread. But unlike Panera, it takes weeks to train truck drivers after they receive their CDLs. It also is potentially dangerous. A 2017 study found that high turnover rates at trucking fleets negatively affects that company’s safety scores.
Marhoefer is not going to join other truck drivers who are campaigning hard against the device. “The 35-year-old Paul might have taken that stance,” he said.
Now, he’s frankly tired.
Jim Perkins
The harsh weather of winter months naturally brings fleet safety more into focus.
At face value, fleet safety is keeping drivers out of harm’s way. Beneath the surface, safety is a key factor in boosting efficiency and decreasing total cost of ownership. Simply put, a culture of safety instilled into all facets of a fleet can be good for the bottom line.
Preventing accidents not only protects drivers and others on the road, but also prevents additional expenses. For example, the Network of Employers for Traffic Safety (NETS) reported on-the-job crashes that result in an injury can cost upwards of $75,000.
Ultimately, a safer fleet relies on systems allowing a more seamless and intentional on-the-road process. In the fleet management industry, there are several services that not only provide worthwhile safety features but also increase efficiency. A commitment to reducing potentially dangerous incidents doesn’t mean a sacrifice in profits.
The following is a list of fleet management tools that not only increase safety, but fleet efficiency as well. Working together in tandem or individually, they can help save fleets money and help reduce costly incidents.
Telematics
The offerings in transportation mobility technology continue to evolve. Telematics solutions emphasize efficiency via safety perhaps more than any other fleet management tool, but also help boost fuel economy and reduce fuel costs. The amount of data available through telematics, increasingly complex safety systems and advanced analytics continue to grow in importance and add to more standard telematics offerings.
According to analysts at Frost & Sullivan, telematics helps fleets save about 20% to 25% on fuel expenses through the promotion of better driving practices, including the reduction of speeding, harsh acceleration and hard braking. Optimizing routes is one of the most used features of telematics. In doing so, drivers are more likely to remain on-task and reduce mileage that could lead to further wear and tear on vehicles.
Telematics also help manage work hours and improve schedules that can help reduce fatigue – a major reason for accidents. Using data effectively can help fleet managers increase productivity by 10 to 15% and reduce overtime by 10 to 15%, decreasing daily driving time by 20 to 30 minutes based on the previously mentioned Frost & Sullivan analysis.
Telematics and in-vehicle cameras can reconstruct accidents, allowing fleet managers to build safety training programs for drivers. Additionally, monitoring driving behavior is a safety-added value that helps prevent on-the-job incidents.
Fleet vehicles can be put through great stress and strain over time. Breakdowns and unplanned maintenance can impact efficiency, and place drivers in dangerous situations. Telematics can alert fleet managers to needed vehicle maintenance, helping keep fleet vehicles safe and ready for the road. In turn, this helps avoid even more expensive repairs or accidents that can occur from inconsistent upkeep.
Fleet cards
Implementing a fleet card program is an easy and popular way to save money on everyday fuel purchases. However, most overlook that safety is built into most fleet cards. For drivers, it eliminates the need to carry cash or personal credit cards to fill up fleet vehicles and helps drivers avoid the need to collect cumbersome paper receipts.
Fleet cards and their software platforms can help avoid fleet fraud, with the ability to track exact fuel spend and set limits on fuel purchases. The ability to quickly activate cards or cancel them at a moment’s notice if lost or stolen is another convenient safety feature. Driver ID technology helps to monitor expenditures for each vehicle driver.
Mobile fueling
Mobile fueling services deliver a variety of fuel options to fleets with trained technicians filling vehicles on site during downtime. This service, in addition to helping save on costs via bulk fuel purchasing, removes the need for drivers to carry cash or personal credit cards to fill up.
Requiring drivers to fill-up vehicles frequently can reduce productivity. According to Geotab, drivers are diverted about two miles out of the way to get gas, spending about 8 minutes at the gas station each time they stop for fuel on average. A fueling trip adds more than 20 minutes to a driver’s shift. Mobile fueling drastically reduces driver fill-ups at gas stations, helping save over 3,000 hours of fueling and over 20,000 miles of fueling trips for a fleet of 100.
For those fleets utilizing the service, safety starts before the first truck delivers a drop of fuel on-site. A mobile fueling provider, such as Shell TapUp walks fleets through the required permitting and guidelines approvals, establishing safety procedures from the onset. Fueling technicians follow strict adherence to safety procedures and protocols on- and off-site, even leading local officials and fleet staff through on-site fueling demonstrations designed to help prevent safety incidents.
Electric vehicles and EV charging
Safety is also an important element among EV fleets. More fleets are turning to electric vehicles (EVs) with each passing year, largely due to their long-term cost savings, federal and local policy, incentives and the push to decarbonize. Safety comes into play when a fleet is assessing EV implementation which also helps fleet operators run a more efficient fleet. Technical and commercial proposals are shared between teams before installation, and technicians follow high safety and security standards on charging station installation days. Following that, online platforms are used to monitor efficiency, and dedicated teams provide ongoing support to answer day-to-day inquiries and keep equipment running.
Eric Miller
The crash occurred on a chilly morning in Bensalem Township, Pa., between a tractor-trailer and a passenger vehicle traveling at what witnesses described as a “relatively fast speed.” The truck driver wasn’t injured, but the driver of the passenger car was killed. After a thorough investigation, police determined fault for the accident was shared between the two.
That determination provided trucking defense attorney Doug Marcello of Carlisle, Pa., with an opportunity to deploy a little-used legal strategy to protect Gypsum Express Ltd. — the motor carrier in the crash and his client — from the potential for a multimillion-dollar “nuclear” verdict.
The pre-emptive tactic, which he dubbed a “sue them first” strategy, was applicable since fault was shared and there was the potential for a liability dispute — in this case, damages to the truck or cargo. This accident, while tragic, provided an opportunity for the strategy.
In the October 2014 crash, the truck was stopped at a traffic signal to make a left turn. As the light changed and the truck began its turn, a Honda Civic traveling in the cross street and driven by the victim, 23-year-old Michael Baronofsky, ran the red light and collided with the truck.
Typically, in a case where a truck driver bears any portion of the blame in a fatal crash, the motor carrier and its insurance company could face a large jury verdict or out-of-court settlement.
Choosing against waiting for the Baronofsky estate to file a lawsuit against his client, Marcello filed a civil lawsuit against the estate seeking to recover $50,000 in damages to Gypsum’s truck. According to the lawsuit, Baronofsky operated his vehicle carelessly and recklessly, failed to obey a traffic signal, was speeding and a host of other allegations.
“If this was a rear-end accident caused by a driver, we’re probably not going to be able to do it,” Marcello said. “If at least partial fault could not be attributed to the other party, it wouldn’t be a good tactic. You wouldn’t use it if the accident is only blamed on your driver or your company.”
“In this time of nuclear verdicts, we must be innovative and aggressive,” Marcello wrote in an essay on the subject. “One of the tactics we frequently use is to sue the car driver. We do this before they sue our client.”
Marcello stressed that, in the case of a fatal accident, the family of a victim should be compensated fairly. In this instance, the strategy — one that is admittedly used sparingly — resulted in a $300,000 settlement with Baronofsky’s estate.
Gypsum received $19,000 from the opposing side’s insurance company for repairs to the truck.
Marcello believes filing the case in the local jurisdiction of Bucks County, Pa., gave him a better shot of a trial in a jurisdiction more advantageous to the motor carrier.
“Once we file it there, the action starts in that court,” he said. “It not only locks in the jurisdiction, but it also gives us a jump on discovery.” In legal terms, discovery is the formal process of exchanging information between parties about the evidence and witnesses that will be presented in the event of a trial, and could include depositions and/or subpoenas.
Marcello was convinced the estate’s Philadelphia attorney would have preferred a trial in his own backyard. For years, Philadelphia has earned infamous recognition as either being on the American Tort Reform Foundation’s Judicial Hellholes list, or on its watch list. “It’s a place one plaintiff’s attorney referred to with a smile as ‘that magical place,’ ” Marcello said.
Jeffrey Oster, a transportation attorney with the Philadelphia law firm of Vaughan Baio & Partners, noted the benefits of securing the right jurisdiction. “In Pennsylvania, I would much rather try a case before a jury in relatively conservative Dauphin County, near Harrisburg, over uber-liberal Philadelphia County because, statistically, any award potentially entered against my client would be lower in Dauphin County.”
While Marcello is not alone in using the strategy, he wants trucking defense attorneys to know that the tactic can help reduce financial exposure in some cases, including those where fault is either shared or unknown, and where trucks or cargo have been damaged. Unlike plaintiff attorneys, trucking attorneys generally don’t widely share legal tactics, according to Marcello.
“We lament the fact that these billboard attorneys are targeting trucks,” he said. “But while we may lament that, we have an advantage none of them have: We know about the accident before they do. If we aren’t prepared and don’t act immediately, we will squander our greatest advantage — immediacy.”
“I’ve used the tactic in limited ways,” said Ted Perryman of the St. Louis law firm of Roberts Perryman. “I’ve probably had a handful of these cases, but we always talk about it on every case. If I had a trucking company that had my headquarters situated in a judicial hellhole, and I had an accident out of state, I would certainly give the strategy some serious consideration.”
“With the exception of the optics, which are never good, the tactic can help lower the cost of the case to the motor carrier,” Perryman said. “Ninety-five percent of these cases get settled.”
But, as he noted, it may not look good.
“You’re suing the family,” said Rob Moseley, a trucking attorney with Moseley Marcinak Law Group in Greenville, S.C. “Not necessarily the most empathetic of parties.”
Moseley added, “You never can tell just how it’s going to go. It could have the effect of galvanizing the other party when you’re suing [a] widow. And you can’t unring the bell when you do it. Once you do it, you could make them really mad and they’ll settle for nothing but putting your company out of business.”
“The situation is a regrettable and unfortunate one that we’ve got to address,” Marcello acknowledged. “[But] what you lose in optics more than makes up in terms of the jurisdictional benefits.”
“I think it’s something that might work in some jurisdictions where the judicial system moves with some expediency,” said Bradford Hughes, an attorney with Los Angeles-based Clark Hill, who defends truckers in civil cases. “In other jurisdictions it may not work as well. Further, it may not be well received by some jurors. It really depends largely on where the defense can file, and that jurisdiction.”
He added, “Being in California, and considering the various challenges that the defense has under California law, I have not yet had a circumstance where my client felt that filing a pre-emptive suit was prudent. However, we have had situations where a plaintiff will file suit, not serve the defense, and wait several additional years for the plaintiff to continue unnecessary treatments. In those situations, we will voluntarily appear in the case after it is filed so that we can try and get ahead of some of the treatment being sought by the plaintiff.”
Oster warned, however, that there are risks. “Suing a potential plaintiff pretty much guarantees counterclaims lodged against the motor carrier in a case where, in theory, the plaintiff may have originally had no intention of suing,” he said. “Therefore, by forcing the plaintiff to court and encouraging him or her to countersue, you are causing the motor carrier to incur a possibly avoidable claim against its insurance policy and likely face an increase in premiums — especially if the trucking company is regularly forcing others into litigation.”
But Marcello believes, in an accident lawsuit, it’s naive to think that a plaintiff’s lawyer won’t come after a motor carrier with everything they have, no matter the strategy being used by the trucking attorney.
Stephen Bennett
Insurance companies and brokers are finding the benefits in artificial intelligence to better assist trucking companies with their risk management needs. The technology has helped by quickly collecting and deploying data, enhancing safety and potentially paving the way to lower insurance costs, technology and insurance experts said.
“Insurance companies are using data and AI technology on the route, on the origin, on the destination, how the driver is driving, to ultimately price insurance,” said Lisa Paul, Hub International’s chief strategy officer, specializing in transportation. She added that commercial auto insurance “has not been profitable doing it the old-fashioned way” because it was based mainly on motor vehicle reports on drivers.
“But that really didn’t tell the insurance companies how those drivers were actually driving,” Paul said, adding that motor vehicle reports are a reflection of how many times you got caught, not what you were actually doing. Hub International offers an AI-supported contract review service that can sift a 50-page agreement in PDF or Word in two minutes and automatically generate a response.
Artificial intelligence has utilized data from electronic logging devices, telematics systems and dashcams to address issues like driving behavior and problematic routes. AI is also beneficial in proposing and revising agreements with shippers.
Dashcam Data
Jeff Davis, vice president of safety for Napa River Insurance Services, the third-party administrator for Hudson Insurance Group, said AI is already proving its benefits in many areas of trucking safety, especially in dashcam systems.
AI has been an effective tool, for example when used with dashcam technology. (drKokos via Getty Images)
By enabling the processing and management of large volumes of information, AI allows some dashcam systems to distill thousands of data points down to “actionable items for which drivers can more effectively be coached,” Davis said. “These devices are no longer simply event recorders.”
The more advanced systems observe following distance, intersection behavior and speed, scoring drivers on overall habits so they may be addressed before they lead to accidents, Davis said. “I feel we will see this technology become more widespread in identifying preventive/corrective measures that can be undertaken in all areas of performance,” he predicted.
Dashcam technology with AI can be instrumental in reducing risky driving behavior, help to lower the cost of insurance premiums and exonerate drivers, insurance executives and tech vendors said.
“Video evidence takes the guesswork out of the equation when fleets need to defend drivers against fraudulent claims,” said Ingo Wiegand, vice president of product management, safety, at Samsara. “It can also speed up investigations for legitimate claims when fleets can easily pull and share HD video footage as evidence directly with their insurance provider.”
Wiegand added that AI-enabled dashcams provide fleets with insights to build a safety program and culture. “With in-cab alerts and mobile workflows, you can proactively coach drivers in the moment and work toward reducing risk across your fleet,” he said.
Telematics Assistance
The implementation of AI-enhanced systems promises to yield maintenance benefits too. Paul of Hub International noted, “A vehicle that’s had multiple rapid acceleration events and speeding events is going to have a different maintenance requirement” than a vehicle that’s being driven by a more cautious hand, belonging to a driver who has received remedial training.
Davis of Napa River said that for any industry or end user, success with AI is dependent on the quality of data. “It directs the assumptions of any AI-based system,” he said. “This is why there must be constant and ongoing validation of the results from any AI process.”
Chuck Wallace, CEO of High Definition Vehicle Insurance (HDVI), said that his company works with a large set of data sources, including telematics systems, ELDs and camera systems. Data from all those sources “comes in different formats at different intervals,” he said. HDVI built its own technology to field the data, analyze and standardize it, and to cope “when there’s a little blurb or a bobble in the data which there inevitably will be — and then fix that” to maintain high-quality data.
“Different telematics vendors spin off data of varying levels of quality,” observed Keith Halasy, vice president of marketing for HDVI. “From a truck operating standpoint, it’s important to make technology selections that support” AI-assisted systems, Halasy said. Some fleets lack the tech resources to put together an AI program, which must be fed by large volumes of data, he noted. “But when you start getting into the pools of some of the leading telematics providers [that] have a substantial amount of data, you can start to take advantage of that.”
Hub International operates a technology portal that can “ingest” data from more than 100 different ELDs, video information from dashcams, and route optimization data to help clients assess their total cost of risk “for that mile for that driver, for that shipper,” Paul said.
The more clearly total cost of risk-per-mile is defined, and then combined with equipment and fuel costs, the better a trucking company can price its services, Paul noted. “But they also then can be more predictive in their own expected losses and premiums,” she said.
Data Use and Storage
Keeping data secure and managing it ethically are not only business priorities, experts noted.
“It all boils down to, legally, who owns data,” said Hub’s Paul.
A trucking company owns the data in an ELD, Paul said. Beyond that, trucking companies seeking to use driver behavior data need to ask drivers to sign a telematics user agreement, as they do for motor vehicle reports and background checks, Paul advised.
Carriers can encounter reluctance or refusal from independent owner-operators when it comes to sharing data. “It can present a problem, but it can present an opportunity,” Paul said.
The independent contractor owns their driver score. A carrier can win over a driver by explaining that the score will be used to leverage lower insurance costs, which will be passed on to the contracted driver.
For a transportation company delivering data to an insurance company, security, including defending against hacks, is a consideration, Paul and others said. “I would say that’s a new and emerging issue for transportation companies,” Paul said. She also pointed to inward-facing dashcams that might capture biometric facial data. “You’ve got to deal with all the state laws associated with that,” she said.
Davis of Napa River called AI a tool to be used in decision-making. “It should not be considered a replacement for the human thought process when it comes to ethical considerations,” he said.
Data privacy should be one of the first steps in implementing “any AI program,” Davis added. “There will be those that actively attempt to breach this data and AI systems in general to gain knowledge into business practices, etc.” He recommended that a data security specialist evaluate any AI project or vendor agreement ahead of time.
AI and video telematics play an important role by giving fleets insights and evidence to better inform rates and protect against false claims, Samsara’s Wiegand said. “I see a lot of potential for driver coaching at scale and proactive training on patterns of risky behavior. Getting ahead of these behaviors before they affect insurance rates is where fleets will be able to feel a tangible impact.”
Wiegand said that choosing “the right AI-enabled dash camera is the best way to lower insurance premiums.” He said certain insurance providers look for specific dashcam features, such as audio speakers, recording capabilities or a wide view for outward-facing cameras. He noted that there are “more nuanced features” such as proximity search and on-demand video retrieval. These can help fleets pinpoint a vehicle’s location and retrieve HD video footage within minutes, he said. “For some customers, this results in hundreds of thousands of dollars saved on claims by exonerating drivers with video footage,” Wiegand said.
“As insurance premiums continue to rise, it’s become increasingly important to take a data-driven approach to risk management,” Wiegand said.
Some insurance companies are changing their approach to pricing, focusing on “how many miles and what routes and what type of driver in order to better price and achieve better profitability,” said Paul of Hub International.
Realizing Savings
Greater flexibility in rates during the span of an insurance contract is possible with AI-processed data, insurance executives said.
If a fleet improves its safety performance score, some insurance companies now offer to decrease what they charge, Paul said. “The challenge is most trucking companies don’t have a feel for how their fleet is going to score,” and a poor score could cost them.
HDVI offers a “Safety Lookback,” analyzing fleets’ telematics data from the past 90 days when a policy is first quoted. If the data from that span shows a certain level of safety performance, a fleet can earn discounts from the beginning of the policy, the company said.
Todd Witte, vice president of insurance product for HDVI, said the percentage of customers willing to share data before buying insurance has been rising. “It’s above 50 percent,” he said.
“If you think about the old days,” Witte said, a trucking company seeking coverage might tell an insurance company about its trucks, provide driver MVRs and describe its operations area — “pretty simple stuff.”
With AI, Witte said, instead of yearly evaluation of risks, there can be monthly monitoring, enabling the insurance company to be more responsive to a carrier’s driver behavior and the fleet’s safety performance. “This data is able to paint a much more high-definition picture of the risk,” Witte said.
Another use of AI can be to counter a negative reaction from underwriters after a carrier has a major accident. Underwriters typically conclude that the carrier is a high risk, but Paul said, “Maybe the transportation carrier was just unlucky.”
AI-generated data might show that the driver involved in the loss scored high in driving performance, had no record of distracted driving, and also that the overall fleet score is above average. That information can be used to reassure an underwriter, Paul said.
“Underwriters have historically used FMCSA violation data to price insurance,” Paul said, but with driver turnover, operational changes and a different customer mix, driver and fleet safety performance changes, Paul pointed out. “Those violations that happened three years ago and two years ago may not be indicative of how that company is operating now.”
Underwriters need not use “stagnant” Federal Motor Carrier Safety Administration data “as the sole determinant in pricing insurance,” Paul said. “The AI data is fresh, it’s current.”
Mindy Long
With the year more than halfway completed, there has been much concern about rising insurance premium costs. However, are we getting close to an environment in which those rates are leveling out or even reversing course? And what are the main factors to get the industry there? Here’s what insurance experts are saying:
Leveling Off
Industry experts say that although there is evidence of premiums ebbing, there is still reason for caution:
- “It seems as though the market may be starting to soften, as we have seen smaller average renewal increases in 2022 and early 2023,” said Chris Gulker, senior vice president of transportation for TrueNorth, adding that well-run companies investing in safety and technology with a solid loss history are seeing small single-digit increases, flat renewals and in some cases, even small decreases.”
- “The trend is starting to level off and even go down,” said Michael Birge, president of Hub International’s transportation services division, adding that commercial auto has experienced about five straight years of double-digit increases.
Turning to Technology
As the industry is meeting an uncertain future about controlling premium costs, carriers are turning to technology, including cameras, telemetry and artificial intelligence, to help mitigate risk and reduce premiums:
- Stephanie Forster, principal strategic business developer, corporate development, for Omnitracs explained that some insurers subsidize the telematics devices and other in-cab AI or video safety systems while others require them, and more insurers are incorporating data from video safety solutions and telematics into their risk models for improved underwriting.
- On navigation technology, Luke Wachtel, senior vice president of transportation and logistics for Platform Science, noted it is not just providing a more conservative, safe route, but putting out driving alerts and warning the driver to pay attention. “Some of [the telematics is] new enough that insurance companies are offering lower premiums, but the fleets can go back and say, ‘Look at this data,’” he said.
- Bill Zenk, executive vice president of risk and workforce solutions for TrueNorth, said the best companies are using AI in lockstep with human-to-human interaction. “The technology looks at a motor carrier’s lawsuit vulnerability by pulling in multiple streams of data,” he said. “The tool churns out a score that informs us where the motor carrier’s nuclear verdict vulnerabilities are, so we can find ways to minimize the threat.”
Cost Squeeze
Prices for parts and labor plus new technology on vehicles are driving costs higher, giving fleet owners and managers another challenge when weighing premium costs:
- “Social inflation, medical costs and truck replacement costs and repair rates all continue to put pressure on insurance rates as they all experience increases that are driving loss costs and severity,” said Gary Flaherty, chief insurance officer for OpenEyes.
- Flaherty was a senior vice president at Nationwide before moving to OpenEyes in May. Nationwide’s claims data shows OEM parts on as much as a six-month delay or more. Flaherty said this is creating extraordinary demand for used parts, and Nationwide saw those part prices skyrocket. “This is causing increased storage costs when parts delays occur and experiencing more units being totaled due to repair costs now at such high levels,” he added.
- “Any new car out there that has cameras, sensors and radars. Even a mild collision can be a costly repair,” said Michael Dorfman, chief operating officer of Koffie Financial.
Getting Up to Speed
Dorfman said that, historically, insurers had a problem understanding what equipment carriers are using, how it is being used and how they monitor it:
- “Legacy insurance companies have a challenge understanding that at a granular level to build that into insurance policies. The broad approach has been, ‘That’s great. Let us see how it plays out, and then you can be eligible for discounts,” he said. “We’re trying to segment the trucking market better, so if you’re in the top tier of trucking companies, you can get a discount.”
- Ian White, CEO of Koffie, said that his firm wants to “identify these safety technologies, knowing they can have benefits and price them in now rather than wait five years.” Koffie offers a dividend program that gives fleets up to 10% back on their renewal based on their loss ratio from the prior year.
Court Costs and Preparedness
While nuclear verdicts remain a factor, the cost of small claims is increasing, and the fine line between victory and defeat is a good defense:
- “A $2,500 claim is now $5,000 over the last three years. Underwriters are looking at the frequency of claims and costs. If you do the math, those small claims are significant,” said Hub International’s Birge.
- Telematics, specifically video, when used properly, has had a major impact on claim defense. When a professional driver can immediately show the video to a state trooper, it can change how a report gets written up, which can make a big difference in court, Koffie’s Dorfman explained. Even if the video does show a driver is at fault, companies can still benefit from the information. “Ideally, if the driver is at fault, you still know that faster so we can make quick settlements and save on legal and defense costs,” he said.
- The majority of professional drivers are not at fault but get accused, said Jacques DeLarochelliere, CEO and co-founder of Isaac Instruments. “If they know you have a camera, it is a different conversation. If they know you have telemetry, it is a different conversation,” he noted.
