Keeping Foxes Away From The Henhouse By Carmen Daecher

One of your buses is involved in an accident. It's bad. There are serious injuries to passengers and other parties involved in the accident.

No one wants to face the trauma associated with accidents. Hopefully, situations like these do not present themselves too often. But when they do, it is time to spring into action and assess what the company has been doing, what it should do right now, and what should be done soon after the accident.

When an accident occurs, an immediate and thorough investigation of events should occur. Whether this is accomplished by you or by others is less important than it being accomplished quickly, and thoroughly. The investigation will reveal facts and issues that will be important for future claims and legal actions. For you to be informed and to consider your options in collaboration with your insurance company, these facts are essential.

Once the physical facts are known, and statements have been obtained from passengers and witnesses, it is time to look at the operational aspects associated with the accident:

• Review the driver's Qualification File - make sure that he is currently qualified to drive; that there are no medical issues that could be associated with the accident; and that his/her history does not present grounds for previous suspension or termination, based upon you policies.
• Check the maintenance history of the vehicle. Check that any safety defects which may be associated with the accident were not previously known and/or unaddressed. The easiest way to do this is to check the previous post-trip vehicle report.

Also, check that all scheduled maintenance has been performed in accordance with your preventive maintenance program.

And finally make sure that the annual inspection of the vehicle involved in the accident is current.

• Check the driver's logs if applicable. Specifically check the logs on the day of the accident and for the preceding seven days. Make sure that the logs have been properly filled out and do not show any unexplainable violations.
• Investigate any other situations that may be associated with the accident (e.g. reports of a tired or sick driver, passenger actions, etc.) As information regarding these issues becomes known, check that your policies and procedures, if any, were used appropriately given the circumstances.
• Check the driver's training records, especially as it relates to driver actions associated with the accident. Check to see if training was provided according to your policies.

Why check all this? Because plaintiff attorneys (the foxes) will attempt to develop complaints and punitive damage allegations on grounds of negligent hiring or negligent entrustment. This is how the foxes raid the henhouse.

The compensation for damages to victims in an accident will be based largely upon the facts and the percentage of fault of each party involved. This is why good scene investigation is so essential in properly managing claims.

The punitive damages are another matter. While some degree of fault must be assessed against your vehicle and/or driver, potential payments from your insurer or you for punitive damages may go far beyond the compensation of victims. That is why it is so important to define policies and procedures and follow them consistently in your hiring, training, vehicle maintenance, and deployment of drivers and vehicles. If you manage these risk elements consistently, and have documentation to prove it, you will have your best defense against punitive damages.

To use our example above, performing a review of operations associated with the accident will only reveal whether the henhouse has been left open or if it is fully secured. The consistent checking of the henhouse to be sure it is secured, before anything happens, is your best assurance that the henhouse is always O.K. When an accident occurs, you only need to check that your security devices are still in place.

From where I am sitting, consistent management process is your best defense against punitive damages. By using it, you can feel assured that the henhouse is tightly secured and the foxes will remain at bay.

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