How Technology Can Help You Avoid Nuclear Verdicts
As a fleet manager, you must live with the reality that anytime there’s a collision involving one of your trucks and a passenger vehicle, it’s going to look bad for your company. Pictures from the scene will show a car everyone can see at a glance is totaled, along with a truck that may not have sustained much damage at all. Plus, the driver of the car is an individual, someone with a job and a family and dreams for the future. The driver of the truck meanwhile represents a company, faceless and driven by profits.
It’s not surprising that, while research shows the driver of the four-wheeler is at fault in about four out of five accidents involving an 18-wheeler, the verdicts in ensuing court cases more often than not favor the driver of the passenger vehicle. It’s not fair. It’s not helping to make the roads any safer. But it’s the reality you’re faced with.
Arguing with Reptiles
In cases against trucking companies, plaintiff attorneys have adopted a sophisticated strategy known as “reptile theory.” The idea is that instead of targeting the higher cognitive functions of a jury, the lawyers try to activate more primitive regions of jurors’ brains. They turn the focus away from the details of the accident in question and onto the larger implications of these huge vehicles driven and managed by reckless mercenaries barreling down the roads where we all travel in tiny, vulnerable cars and trucks with our kids. It’s up to the jury members to protect us all from this runaway danger—and the best way to do that is to send a message.
That message has lately been coming in the form of larger and larger verdicts against fleets. The average annual increase in these verdicts for the past several years is 51.7%. Compare that to the average inflation rate for the economy in general, which is about 1.7%, and you get a sense of the problem’s severity. From 2006 to 2011, the number of verdicts exceeding $10 million—so-called “nuclear verdicts”—totaled 26. From 2011 to 2019, that number jumped to almost 300.
The odds are stacked against fleet managers. But there are ways to even the playing field. “We are at a place where we now have access to technology that can change that dynamic,” according to Bryan Falchuk, managing partner of Insurance Evolution Partners and author of The Future of Insurance. “So rather than just looking at it as who has the better attorney,” he says, “we can now try to use actual facts that may have helped us avoid the loss in the first place, but certainly help us deal with it if it does come.”
Technology and Culture
According to Donald Smolen, a Tulsa, Okla., civil trial attorney, the first thing lawyers for the plaintiff in these collision cases do is investigate the company they’re going after to see if they can make the argument more about general policies than any one-off incident. Think the crash was just a slipup that could’ve happened to anyone? Well, the lawyers are going to make it an issue involving recruitment, hiring, training, scheduling, safety policy, and anything else they can bring in to make you look guilty.
So, first things first, was your driver at fault? Knowing the answer will help you determine the best course of action. Do you settle out of court? Or do you fight the charge tooth and nail? The best option of course, is to provide evidence exonerating your driver before the case even gets off the ground. That’s where the latest video telematics technology comes in.
Michael Flanagan, CEO for Dublin-based telematics company Xtract, says the crucial step is getting those “10 seconds of truth” about what really happened. With strategically positioned cameras on the vehicle and a system that uploads the video feeds to the cloud, fleet managers can usually tell right away whether their driver was at fault. “From that moment of impact to the moment when the claims handler sees the reconstruction of the crash is about 60 seconds.”
Trigger-activated cameras on their own will go a long way toward reducing your risk of crippling verdicts (a point brought home by the statistics above about how infrequently 18-wheelers are at fault in accidents involving passenger vehicles). That camera data is also augmented by information from g-force measurements and other details from the truck to recreate the incident.
But since that one incident won’t be all the lawyers bring up in court, you’ll also need to keep your safety training up to snuff. Fortunately, cameras and telematics provide a technological basis for both training and ongoing performance monitoring. Systems using artificial intelligence to recognize behaviors like texting while driving allow you to coach your drivers without having to monitor them every minute they’re on the road. That’s more privacy for them, but just as much accountability for unsafe driving.
The FMCSA estimates that distracted driving is behind 71% of truck crashes. In other words, as seldom as the driver of the truck is responsible for a crash, when they are responsible it’s usually because they were doing something in the cab they weren’t supposed to be doing. The good news is that this is a problem that can be addressed with relative ease.
The research and consulting firm Frost and Sullivan has found that installing video telematics systems brings about an average 60% reduction in crashes for fleets, which translates to a 75% reduction in costs tied to the crashes. And the main reason for this reduction is that with telematics distracted driving goes down by 80%.
The important point here, though, is that when those lawyers come after your company for any single accident, you can point to all the measures you’re taking to foster a culture of safety. And your telematics-based training and ongoing coaching can serve as exhibit A. So, when the plaintiff’s attorney starts poking around looking for opportunities to paint your company as recklessly negligent, they’re only going to discover that you’re doing everything you can to make sure you’re drivers are being safe.
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