If your company owns and uses multiple vehicles in its business, the chances are good that at some point one of your vehicles will be involved in an automobile accident. If your fleet includes trucks or your business involves the transportation of oversized or hazardous materials, that accident might result in catastrophic injuries or even death. Your company’s ability to defend against a possible accident-related lawsuit that could be filed up to three years later is directly tied to your company’s immediate response when the accident first happens. The first 24 hours after an accident provides an opportunity to investigate the accident and collect and preserve critical evidence that might otherwise be lost. Therefore, it is important to not only have emergency response protocols in place but to make sure that all relevant company personnel are properly trained on exactly when and how to initiate those procedures.

What Constitutes An Emergency?

A good practice is to activate your emergency response team and procedures when you learn of any accident involving extensive damage or a catastrophic injury. Examples of the types of accidents or injuries that should generate an emergency response include:

• Death
• Dismemberment (especially if the injury involves amputation of a major appendage such as an arm or leg)
• Paralysis or other spinal cord injuries
• Head or brain injuries
• Severe burns or other injuries that will involve significant scarring
• Loss of eyesight or another of the five senses
• Accidents involving multiple people or vehicles, or extensive property damage
• Accidents that cause fires or explosions, result in fuel or hazardous material spills, or otherwise require environmental reporting and remediation
• Accidents that result in disabled vehicles stranded in potentially dangerous locations, such as bridges or railroad tracks

Who Needs To Know?

Other than the driver, the first person at your company who is likely to find out about that one of your vehicles was involved in an accident is the person serving as your dispatcher or switchboard operator. There are a number of calls to make immediately. At a minimum, he or she should be in touch with the following people:

• State and/or local law enforcement
• Your driver
• Your Risk Manager or Safety Director
• Your insurance company – not your agent!
• Defense counsel*
• An accident reconstruction engineer
• A field investigator or independent adjuster

*   While every situation may not require an attorney – not every accident will go into suit or even result in a claim – there are important reasons to retain counsel early. First, an experienced transportation attorney will likely have handled many more emergency situations than anyone on your team and can provide valuable insight and advice during the crucial post-accident phase. Second, retaining an attorney to oversee and manage your company’s response will help shield your investigation from disclosure based on the attorney-client privilege and attorney work product doctrine.

Why Is A Prompt, Comprehensive Response So Important?

The window of time immediately after the accident provides a unique opportunity to collect fleeting and time-sensitive evidence. Memories fade over time, and skid marks and debris on the roadway that could potentially corroborate or discredit a driver’s or witness’ version of events gets cleaned up. Photographs are important to show the position and condition of the vehicles involved at the time the accident occurred. Video may have been captured by a nearby camera. A well-trained emergency response team can document and preserve all this evidence from the scene.

The vehicles themselves may contain additional information. Most modern vehicles contain some sort of “black box” that records data that can be used to reconstruct the accident, such as time and speed calculations, deployment of the brakes and airbags, and seatbelt use. Commercial vehicles may also have the ability to record audio and video that could be relevant to the accident. The problem is that this information can in some cases be lost or recorded over after a period of time, or even sooner in some cases, when a vehicle is moved or another triggering event occurs. If you’re a sophisticated fleet operator, a court may later determine that you had a duty to preserve this information, and your failure to do so could result in sanctions that could impact your defense of the case. Proper emergency response can mitigate little issues before they become big problems.

____________________

If you maintain a fleet of vehicles and you haven’t updated your Emergency Response Plan in a while, or if you don’t have any procedures in place for such events, contact Jack Laffey (jlaffey@llgmke.com) or John Halpin (jhalpin@llgmke.com) to discuss how the Transportation Team at LLG might be able to help.