Transportation Risk Management

How to be prepared when accidents happen
Matt Johnson
November 20, 2018
COMMERCIAL, RETAIL, FABRICATION : LEGAL


Regardless of where a company is involved within the transportation market, an important step in managing transportation risk is being prepared when an accident occurs.

Accidents happen. Claims happen, too. Whether it’s a lawsuit, a worker’s compensation issue, or otherwise, transportation-related actions are a specialty. They often involve regulations and theories of liability that might be unfamiliar to most. Lawyers representing injured people often cast a wide net that can capture unsuspecting companies. Regardless of where a company is involved within the transportation market, an important step in managing transportation risk is being prepared when an accident occurs. 

Developing a plan to respond quickly and appropriately when notified can prove essential to protecting and securing critical evidence of an accident—in traffic, on the dock, or with cargo. Gathering, documenting and preserving essential information immediately after an accident can help define responsibilities and liabilities. 

The following is a partial list of items to consider when pulling together a response plan.

Ownership. Whether it’s a truck, trailer, forklift or other machinery, ownership matters when accidents happen. Preserve records of ownership or lease of all vehicles or equipment involved in the incident. Specific purchase dates and model information can prove essential to determining maintenance responsibilities and ensuring all necessary parties are involved in a claim. 

Training. Protect and preserve employee training records, policies and compliance evidence that might bear on the incident and operation of the equipment. Equally, where possible, records regarding the training of any maintenance personnel can also prove crucial to defending transportation-related claims.

Statements. Be prepared to take statements from involved parties, as close to the time of the incident as possible. Keep statements fact-specific. Never imply or suggest fault or responsibility. Gathering neutral, current recollections of the event is most crucial.

Site Conditions. Photos—lots of them—taken immediately after any incident are crucial. Photos should not be limited to only the involved vehicles or equipment. Look for surrounding site conditions, warnings and signage. Small details can prove critical to evaluations or reconstruction of an accident in litigation.

Load Manifest. When the incident is cargo-related, information regarding the load, bills of lading and manifest can all provide essential information regarding timing and responsibilities for the load itself. These items are equally essential when the injury relates to handling or movement of cargo on a vehicle, on a dock or onsite.

Substance Abuse. Evaluations for drug or alcohol often accompany accident reports. When they can, they should. Moreover, retention of any existing reports concerning employee use of illicit substances can help defend later suggestions of impairment.

CDL/FMCSA Compliance. Where heavy commerce is involved, technical compliance with commercial driver’s license requirements at the state and federal level should be maintained. Equally, where the incident involves interstate commerce, compliance with the Federal Motor Carrier Safety Administration requirements for vehicles, equipment, inspections and loads must be preserved.

Insurance. Copies of insurance policies and specific-coverage entitlements for vehicles or machinery in effect at the date of an accident must be maintained. While some transportation claims are quickly resolved, others can drag on for years, and across multiple policy renewals. Keeping copies of the insurance particulars in effect at the time of an incident can ensure retrieval of benefits paid for in those policy premiums. 

Electronic Data and Working Conditions. Being able to document service hours and other recent loads can provide a shield against claims that employees are overworked or improperly trusted with equipment. 

Material Compliance. Where necessary, confirm compliance and tagging for required hazardous materials and warnings. Being able to document appropriate care for the load being hauled can prove persuasive when arguing an overall commitment to safe transportation.

Cellphone Records. Distracted driving is a reality. Whether using a hands-free device or not, talking on the phone while driving delays response times and removes focus from the road. Request and preserve carrier cell phone records for employees involved in an accident. 

Inspections. Equipment and vehicle inspection records are critical business records. Pull and preserve inspection records for any vehicle or equipment involved so the records are not inadvertently destroyed. Also, where repairs were made, preserve those items as well in the event there are concerns regarding the quality of the repair or materials used in that work.

Official Investigations. When prepared, preservation of all official police, DOT or responsible agency investigative reports is mandatory. 

These items are a small sampling of the broad list that should be preserved when a transportation incident happens. Being prepared to gather and preserve evidence at the time of an incident can be a powerful shield against claims or provide an indication of fault. 

The author is a member of The Gary Law Group a Portland-based firm specializing in legal and risk issues facing manufacturers of glazing products. Write him at matt@prgarylaw.com.