26 Jan Before Facing a Lawsuit: Develop Your “Safety Story”

GEAR UP FOR THE LITIGATION LANDSCAPE

“Plaintiffs’ attorneys have become very good storytellers,” says Cliff Mendelsohn, an attorney with Tucker Ellis LLP in Cleveland. Cliff represents companies facing lawsuits for their fleet’s involvement in an accident. “The plaintiffs have a leg up on defendants because they’re representing an individual who’s been injured and a life’s been changed. That’s very sympathetic to a jury. They also tell a good story about what a fleet did or didn’t do to cause or contribute to the accident. Often, those allegations may not be true.”

Cliff reports that over the past few years, plaintiffs in litigation have increased their focus on fleets’ policies and procedures for hiring, training, and supervising drivers. In many cases, plaintiffs spend more time building their case around the negligent entrustment claims than they do around the actual accident. That story may be based on skewed or inaccurate information. But if it cannot be refuted effectively, it can lead to juries wanting to punish a company by imposing large settlements in the plaintiff’s favor.

PREPARE YOUR CASE IN ADVANCE

“I see many companies that do put safety first for their fleets and are passionate about it,” says Cliff. “It’s our job to show a jury that this is a company doing all they can to put safety first, over money or profits.”

That requires telling a safety story – with people, data and documents illustrating what is being done every day in the name of safety. “This builds a compelling story to combat the story that plaintiffs are telling. We advise companies to have this story ready to go before it’s needed. It’s very hard to build a comprehensive safety story on short notice, when you’re facing tight deadlines during a lawsuit.”

Cliff explains that it takes time to develop a comprehensive story.  Fleets need to find the right people to explain and bring context to their safety policies. Telling a good story often depends on the effectiveness of the storyteller.  It is not always easy to find a person who can explain the policies well and withstand cross-examination.  Often, the story will need to address multiple topics, which may require multiple people. It also takes time to find the documents that can help corroborate the company’s witnesses.

THREE  RULES FOR BUILDING YOUR SAFETY STORY

As an experienced attorney, Cliff advises companies with fleets:

• Make your story comprehensive

Be able to address all aspects of your fleet operations, from how you equip and operate fleet vehicles with safety technology to your practices in hiring, training, supervision, and discipline. If there is anything you don’t do well, the plaintiff will figure it out, and that’s what they’ll make the case about.

• Start early – don’t wait for litigation

Have your safety story ready to go, so you can pull it off the shelf and adjust it according to what the case is about. It’s very difficult to put together a comprehensive story in the midst of litigation.

• Leverage your vendors/partners

Unless you have a dedicated in-house team to manage and track driver data and claims, it’s hard to get a handle on all the information related to hundreds or thousands of fleet vehicles. If your fleet works with vendors or a third-party administrator, those partners can be helpful in locating and organizing information to help tell your fleet’s safety story. Similarly, your legal department and outside counsel can provide critical guidance in what your safety story needs to cover to put the fleet in the best possible position in litigation.

HOW FLEET RESPONSE CAN HELP

Kari Hagan is Senior Director of Client Development for Fleet Response. “A company’s safety story demonstrates that you have a culture that cares about safety, and you are proactively doing the right thing on many fronts – and not just because something bad happened.”

Kari finds most companies with larger fleets need to partner with a third party to collect large amounts of data, automate processes and make it manageable. “Larger companies simply don’t have time to keep track of all this.”

Fleet Response relieves administrative burden on companies by:

• Normalizing and helping carry out a company’s safety policy with consistency
• Automating training and other processes that improve fleet safety
• Capturing data, behaviors, and documents all in one place for easy export or reference

In coordination with a claims program, Fleet Response helps a company respond automatically after a preventable accident. The driver receives an email message linking them to online training lessons targeted to their specific incident, such as a rear end collision. Mandatory quizzes and reminder emails ensure the training can’t be ignored.

On the safety side, Fleet Response can enroll drivers with state BMVs in order to get up-to-date real-time data on a driver’s Motor Vehicle Record (MVR). Instead of a once-a-year check on a driver’s record, the company has access to any incident a driver has after being hired, such as a DUI. With this data in hand, companies can take proactive steps to identify drivers in need of training or termination.

Fleet Response can also:

• Send out and capture policy signoffs and quizzes
• Collect and validate auto coverage, for reimbursement drivers
• Automate training based on MVR incidents and tailor lessons to the situation (such as aggressive driving)
• Notify the company if a driver ignores training or other safety assignments, or increases in risk level
• Import overall telematics scores from vendors to automate training or capture behavior scores (such as speeding events, seat belt usage, etc).

FLEET RESPONSE VISIBILITY TOOL CAPTURES COMPLETE HISTORY

If litigation does arise, Fleet Response clients have immediate access to data on VISIBILITY, a web-based portal providing real-time access to data and analytics essential for telling a company’s safety story. “All your data is captured, whether it’s sending out automated training in response to incidents, doing proactive driver training, manager coaching or anything else,” says Kari. “You can export a PDF in five minutes and show the whole history on a particular driver and illustrate your safety story if needed in litigation.”