Another Checklist for Rapid Response to Catastrophic Accident

DISCLAIMER:  The following are the thoughts and impressions of   Christy Comstock at he law firm of Everett& Wales in Fayetteville, AR  and have not been adopted, expressly or implicitly, by the law firm of Perkins & Associates, LLC.

 

Like many of my peers in the defense of trucking accidents, I have personalized detailed checklist, camera and supplies readily available in my vehicle to be on the road at a moment's notice. We do this so that our clients get the best service and the preservation of evidence almost  immediately.

The checklist is not intended to be exhaustive but rather an initial guide.  of information  that I use to obtain as much information as possible.

Immediately-

·       Identify exact location of accident.

·       Determine owner of tractor, trailer and cargo.

·       Identify employer of commercial motor vehicle driver.

·       Ascertain whether any environmental or hazardous conditions exist and discuss timely and appropriate response with client.

 

                ·       Retain an approved independent adjuster.

·       Locate driver.

·       Determine if driver is out of service.

·       Determine whether DOT drug and alcohol testing is required; and determine whether testing has been conducted or can be conducted appropriately and within DOT time limitations. §382.303

 

Very soon -

·       Determine whether law enforcement has directed drug/alcohol testing to be conducted.

 

·       Determine whether the motor carrier has independent drug/alcohol testing requirements and protocol which must be satisfied.

 

·       Discuss retention of an accident reconstructionist with motor carrier and where appropriate, retain.

 

·       Determine whether a biomechanical engineer and/or other experts should be retained for scene investigation and vehicle inspection, and where appropriate, retain.

 

Tractor -

·       Determine location of tractor. Where appropriate, make arrangements for download or removal of electronic data recorders on the tractor.

 

v Arrange on-site download of electronic data recorder prior to starting engine or tow to remote download site.

 

·       Direct any necessary post-accident inspections.

 

·       Determine a reasonable time for hold on tractor for third party post-accident inspections.

 

Driver -

·       Contact driver. If medically available, arrange for interview of driver.

 

·       Determine whether the driver requires separate counsel.

 

·       Determine whether driver requires criminal counsel if charges are pending or imminent.

 

·       Obtain driver's photographs of the accident scene.

 

·       Obtain any driver accident forms completed by driver.

 

·       Obtain a copy of any citations issued to the driver.

·       Obtain copies of any statements given by driver to 3^rd parties.

·       Determine whether a post-accident medical examination of driver will be required.

 

·       Determine whether driver is disqualified by this event.

 

·       Obtain HIPAA compliant release from driver regarding testing results. §3 82.405

 

Injuries –

·       Identify all claimants and nature and extent of injuries.

·       Determine whether toxicology testing of claimants has occurred.

·       In fatality accidents, identify funeral home & coroner and learn whether autopsies will be conducted.

 

Witnesses –

·       Identify all witnesses.

·       Procure witness statements through independent

·       Consider court reported witness statements where appropriate.

 

Punitive Damages Against Bar Owner in Alabama

My friend and client,  Mehdi Arradizadeh, Risk Director at Anderson Trucking Service, Inc., recently reported about a case in Alabama: 

 

It is common knowledge that drunk driving is illegal and if a driver is found to be over the legal limit and causes an accident, they will face serious consequences including possible jail time. Further, the drunk driver could face a financially draining civil lawsuit if the drunk driver seriously injures or kills a victim in an accident.

 

However, some residents of Huntsville may not realize that if they are seriously injured or a loved one is killed by a drunk driver, a drinking establishment can in some circumstances also be held liable, in addition to the drunk driver. This is referred to as dram shop liability.

 

Dram shop liability, however, is more difficult to prove. In order for a drinking establishment like a bar or restaurant, or a store that sells alcohol to be held liable under these laws, it must be proven before a judge and jury that the establishment knowingly served alcohol to an intoxicated individual. Further, it must also be proved that the alcohol knowingly served to that intoxicated individual directly related to an accident that caused injury or death to a victim.

Continuing: Trends, Risks in Criminal Background Checks

EEOC Strategic Plan for Fiscal Years 2013-2016 will focus on eliminating barriers in hiring/recruitment including review of blanket review of criminal background checks and credit history. 

 

Should employers still conduct criminal background and credit checks?

In what situations are such backgroundchecks ill advised?

How should employers conduct such checks?

 

Question: How will trucking companies avoid EEOC complaint that DAC criminal background checks don’t have disparate impact on certain groups?

 

The following was reported Lana Batts and Billie Lee in Transport Topics a few weeks ago. I have condensed the article into the salient comments.

 

We have alerting carriers to ever-changing legal trends in the background-screening industry.  Specifically, we have been notifying them of the changes brought about by recent Federal Trade Commission Fines Levied for Violations of the Fair Credit Reporting Act, a class-action lawsuit that has been settled covering the same issues.

The issues fall into two categories:

·        The pitfalls in using commercial databases exclusively for criminal history record checks.

 

·        The need to allow potential employees to rectify incorrect information and explain why a past conviction is not relevant to the current job offering.

By their very nature, database searches represent a single snapshot in time.  “National” databases information is a guarantee of receiving only partial information – at best – and therein lies the danger of errors that may result in costly civil litigation.

           

The question that courts and the EEOC are beginning to ask is, “How can one rely on a product with known significant deficiencies such as the ‘national’ database standing alone and still pretend be in compliance with FCRA?

The EEOC’s new guidelines are all about explanation, or individual assessment –i.e., allowing the candidate to explain the circumstances in the record and what has happened since the conviction.

 

The EEOC provides guidance regarding the factors that should be considered and requires and individual assessment of these factors before a final hiring decision is made.  As with the FCRA process, there are clear steps in providing notice and gathering required information.

 

 

Also, I want to remind you about the Kaplan case from the federal Ohio Northern District, which addressed the admissibility of evidence necessary in a disparate impact discrimination claim when an employer uses criminal or credit background checks (such as trucking companies using DAC). I will had a  fairly detailed analysis of the case on February 14 on this blog site.

 

As always, if there is anything I can do to assist you in Louisiana, particularly North Louisiana, or in Northeast Texas, feel free to call day or night.

 

Mark Perkins

Perkins & Associates, LLC

318-222-2426

Imperative for Due Diligence in Selecting Motor Carriers

Recently,an Oregon jury returned a verdict of nearly $5.2 million to the family of a man who was killed by a commercial motor vehicle. The verdict in Linhart v Heyl Logistics, LLC, No. 10-3100- 'PA, 2012 WL 325844 (D. Or. Feb. 1, 2012) is significant because it continues the trend of claims against transportation broker on a negligent hiring theory, and it included punitive damages.

 

 

This is believed  to be the first verdict in the country awarding punitive damages against a transportation broker for negligent hiring.

The recent trend of verdicts suggests that the negligent hiring theory of liability will continue to serve as a viable theory of recovery for plaintiffs.  Even though  trucking brokers were hit with unfavorable decisions in Schramm v. Foster (341 F. Supp. 2d 536, (D. MD. 2004), Jones v. C.H. Robinson (558 F. Supp. 2d 630 (W.D. Va. 2008)), and now Linhart, among others, a review of those circumstances  give us guideans on how prudent broker will not get caught in the negligent hiring trap. 

 

 

Linhart merely serves as a reminder that brokers utilizing best practices will not be  the targets of these negligent hiring claims, and that liability will not follow when basic due diligence is employed.

In Heyl Logistics, it was apparent that Heyl performed no due diligence prior to hiring Washington Transportation to haul the cargo for Nestle. Had even the most basic of diligence been performed, Heyl would have learned that Washington Transportation did not have insurance or other financial responsibility under Federal Motor Carrier Safety Regulations. Also, Heyl did not have Department of Transportation (DOT) operating authority because it had been revoked! 

 

On September 25, 2006, Washington Transportation's truck driver was coming off of a crystal methamphetamine high and falling asleep at the wheel. 

 

 

Accepting the premise that even the slightest due diligence would have revealed the major violations described above, the jury returned a verdict of $5.2 million, which included punitive damages. The jury sent a clear message that a broker has duty to the motoring public to ensure that basic qualification required by the FMCSR.

 

 

Any broker who paid attention to the Schramn decision and  cases that followed was already aware of this principle so don't overreact to the Linhart decision. Just be wise.

　

The broker should take appropriate measures to ensure that:

1. the motor carrier is carrying adequate insurance in compliance with FMCSR Part 387;
2. the motor carrier has valid operating authority; 
3. no predecessor companies  had their authority revoked;
4. keep a file on each motor carrier it hires, maintaining within that file updated information about the motor carrier's insurance (personal injury, property damage and cargo coverage), operating authority and scores for the carrier in the seven behavior analysis and safety improvement categories under the Federal Motor Carrier Safety Administration’s 2010 Compliance, Safety, and Accountability program; 
5. the broker-motor carrier agreement should include a requirement that the motor carrier inform the broker as soon as practicable when the status of their financial responsibility compliance, or operating authority changes.

 

We hope this information is helpful to you. As always, if there is anything we can be of assistance in North Louisiana or Northeast Texas, you can contact us any time of the day or night.

 

For more information about the firm, see our website at www.perkinsfirm.com or contact me at 318-222-2426.

 

Mark Perkins

Perkins & Associates, LLC

318-222-2426