Doug Marcello – My colleague, Tiffany Peters, addresses what drivers should do after the accident.
Accidents happen unexpectedly, even to the best drivers. Knowing what to do beforehand is critical. Proper accident response will better position you to defend yourself and your company if a lawsuit is filed. In some instances, your response may even prevent a lawsuit. Below are the top 5 tips to keep in mind when preparing to respond to an accident.
- Pictures.
- If it is safe to do so, take pictures of:
o all sides of the vehicles involved, including the points of impact,
o the roadway, traffic signs, and any marks or debris, and
o the license plates of any witnesses who stop.
- It is best to leave the vehicles where they are until the police arrive and ideal if you can leave them there until you have coordinated with a reconstruction expert. If any vehicles must be moved to prevent another accident, try to document their locations as best you can with photos before moving.
- Look around for any surveillance cameras nearby that may have captured the accident.
- Silence.
- Do not talk with anyone unless absolutely necessary.
- You will have to talk to your company, your attorney, and first responders. Unless approved by your attorney, do not talk with anyone else.
- DO NOT DISCUSS FAULT WITH OR APOLOGIZE TO ANYONE.
- Social Media.
- Avoid posting ANYTHING on social media about the accident.
- Check your privacy settings regularly. Plaintiffs’ attorneys will look for anything they could show a jury that makes you look bad – even content that is unrelated to your driving or to the accident.
- While admissibility can be fought, it is better to not have it out there.
- Citations.
- Just because you were not given any tickets at the scene does not mean you are in the clear. In Pennsylvania, for example, a ticket can be issued up to 30 days after the accident, but if someone claims to be injured, then the time is extended to a year.
- Make sure to check your mail regularly. You are supposed to respond to citations within 10 days in Pennsylvania.
- It is important to know the effect of a citation and your response to it in the state where it occurred. Before pleading guilty to be done with it, talk with your attorney to make sure you know the answers to the following:
o Can my plea be used against me in a civil action?
o Will this cause a suspension of my operating privileges?
o Does this carry points?
o Is this considered a serious or major offense?
o If in another state, what will my home state do with this?
o Are there any other potential consequences to be considered in this instance?
- Do not forget that Pennsylvania limits your time to appeal to 30 days. In other states, the time for response to a citation or the appeal of the judgment may differ.
- Police Report.
- Get a copy of the police report and review it for accuracy while everything is still fresh in your mind.
- If anything is wrong, like the location, see if you can get the officer to change it.
This is not an exhaustive list and assumes accident response measures are taken such as securing the scene with DOT triangles or warning flares, checking if anyone is hurt, reporting the accident to your company and authorities, and protecting against any immediate danger posed by hazmat materials. Before an accident happens, familiarize yourself with company guidelines and be ready to follow them. We would be happy to provide accident response packets for free – just send an email to Tiffany Peters at tmp@saxtonstump.com .
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:
- Educate
- Motivate
- Flex
- 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.
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.
