Fleets can reduce the risk of a nuclear verdict

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Nuclear verdicts can be detrimental to motor carriers and their insurance rates, but carriers can mitigate risk by using technology, documenting and sharing safety efforts, and taking advantage of the first 24 hours in the event of a claim.

“Companies that have embraced a culture of safety and live and breathe it have stabilized premiums and are not afraid of nuclear verdicts because there are very few shortcomings that can be exposed,” said Bryan Smith. , vice-president of HUB Insurance.

The main factors contributing to nuclear verdicts usually revolve around security statistics, lack of hiring and training documentation, and lack of defenses, such as cameras. Record keeping and technology can eliminate the argument that there is a systemic failure.

The primary trigger for nuclear verdicts are systemic issues within the company rather than the specific facts of an accident, which is why documenting safety strategies is essential.

“The idea is to hit carriers with a big verdict to change their behavior,” said Doug Marcello, attorney and chief legal officer of Bluewire, a software provider that helps fleets manage vulnerabilities. “We want to say there is a risk there, but that risk is greater than what we can do for safety.”

The technology – including active braking systems cameras and telematics to monitor behavior – demonstrates a commitment to safety. However, the technology only reduces claims and premiums if insurers act on the information it generates, said Dan Cook, director and practice leader at insurance brokerage TrueNorth.

Cook added that it’s critical to remember that the data exists, even if an operator isn’t using it, and the requester can get it. “If you have data that tells you that you have a dangerous driver operating in an unsafe way and you don’t act on it, that will come out during the trial. At the same time, if you can show a history of corrective actions, you can show that as an organization you receive information and use it to be safer, it gives you something to rely on to defend yourself,” he said.

While technology and the data it produces are valuable, they can be overwhelming. “Safety officials are drinking through a fire hose when it comes to technology,” Marcello said, adding that the first step is for fleets to identify what technology they have. “Some people don’t realize what they have until after the accident.”


Reid Spitz, co-founder and product manager at High Definition Vehicle Insurance (HDVI), said data from electronic recording devices, for example, isn’t always used. “Fleets are often overwhelmed with information and don’t have the time or resources to assess and learn from the information available,” he said. “To have an impact, the data captured by telematics devices must be integrated into a cohesive and well-managed risk management program for fleets to see the safety results.”

Fleets also need to look at where accidents happen against the data and focus on the behaviors most indicative of accidents, Marcello said.

HDVI recommends that all fleets use a learning management system, which helps drivers adopt specific behaviors and track training or information that drivers have had access to. “If a fleet is faced with litigation, they can use this information to demonstrate that they have gone above and beyond to train drivers and offer them resources,” Spitz said.

Not having a complete driver’s record, not documenting training, not taking any training at all, and using below average training standards all increase the risk of a large verdict. “It’s pretty easy to have a jury look down on a trucking company if they don’t document training,” Smith said, adding that the same goes for companies with poor CSA (Compliance, Safety, responsibility) without an active plan to manage them. “If there are no guidelines, or if there are and they are not followed, it can be exposed and again painted negatively.”

If a plaintiffs attorney can paint a picture that a fleet has a constant problem with fraud in their logbooks, not keeping well-maintained vehicles, not properly screening drivers in their hiring practices, etc. , it’s easier for them to use the reptile theory — a trial strategy that tries to use fear and anger to win cases and speed up verdicts, Spitz said.

While large sums grab the headlines, any verdict may be nuclear compared to the actual damages. “We are seeing an increase in smaller verdicts – $500,000 – while damages may have been a few doctor’s appointments that amounted to $1,500 each,” said law firm partner Jannie Steck. Scopelitis, Garvin, Light, based in Indianapolis. Hanson & Feary.

Promote a culture of safety

Safety culture is the lens through which workers and the public see how the company feels and acts when it comes to safety and it is something that is demonstrated and not communicated. “You can’t just write a security policy and walk away,” said P. Sean Garney, co-director of Scopelitis Transportation Consulting.

pre-trip inspection

A driver checks his tires during a pre-trip inspection. (1933bk via Getty Images)

Internally, safety-focused leadership and managers empower all employees to listen to feedback and make decisions to improve safety, even if it means missing a delivery. “If you expect your drivers to take their pre-trip and DVIR [Driver-Vehicle Inspection Report] process seriously, you have to take it seriously any time they raise a concern about any piece of equipment they’re using,” Garney said, adding that while much of the safety technology and discussion focuses on the driver, his supervisors, maintenance technicians and safety officers must also be held accountable.

Establishing communication channels with drivers, such as social media groups, creates opportunities to share safety tips. “Traditionally, we used to think of safety as a monthly safety meeting. Now companies are getting creative with finding ways to interact with drivers, dispatchers and everyone else,” said Garney.

Doug Marcello


Marcello said one of the biggest challenges is fleets not telling their story. “It starts with compliance in terms of what they do and how they comply with regulations, but it goes beyond compliance,” he said.

Garney suggests that fleets take advantage of opportunities to win safety awards, which provide an opportunity to promote their overall efforts. “People often think it will take a long time to create an entry for an award, but it can be a great marketing tool,” he said.

Carriers can also promote and take credit for their good work in the community. “The reptile theory case is not about the actions of the driver. It targets big bad business. The company needs as much in the field as possible to get credit for its actions,” Cook said.

The need for speed

If a claim does occur, the first 24 hours are critical and often overlooked, harming motor carriers on the road. “If your insurer can’t afford to get boots on the ground as soon as possible, work with an independent consultant to help you with claims and perform accident reconstruction,” Smith said.

Steck said more often than not, it’s worth investing in experts early on to help assess the case and have resources if the case goes to trial. “The first thing we tell customers is that if you have had an accident or a claim, particularly if it is a serious injury or death or if you suspect there may be serious injuries, the best thing to do is to gather as much information as possible. as soon as possible,” she said. “Be lucid early in the process about which accidents have the potential to turn into a nuclear verdict.”

This means conducting a thorough investigation, retaining the services of experts, reviewing phone records and driver records, and getting a sense of the big picture, including the weeks leading up to the event. “Look at it like plaintiff’s attorney can look at it,” Steck said.

Cook said carriers can be reluctant to spend money on crash investigations and hire a lawyer quickly. “These dollars, while they can be substantial, can put the motor carrier in a better position to mitigate risk,” he said, adding that choosing the right business partners was key. “If you’re a motor carrier handling all 50 states, you should have a national attorney selected so you can pick up the phone. You cannot completely depend on the insurance company to do this for you.

After an initial investigation, a follow-up is essential. “Connect with an applicant where you can in order to systematically assess an application,” Steck said.

Acting early could also allow fleets to avoid jurisdictions known to favor large colonies.

“Be aggressive and do what you can to try and beat the jurisdiction if it’s a jurisdiction against you,” Marcello said. “If we have a liability argument and our client has damages, we will file first because the first to file determines the court.”

However, Steck said more and more regions are accepting large sums. “What we’re seeing across the country is that verdicts are increasing, and it looks like these nuclear verdict hotspots aren’t as rare anymore,” she said.

The unfortunate reality of the industry is that accidents will happen, regardless of fault, and lawsuits will arise. Thus, it is best for fleets to stay prepared.

“We know that in advance. Let’s identify our vulnerabilities and fix them today,” Marcello said.

Martin E. Berry