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From accident to trial, few moments matter more than the decisions and investigations made immediately following a motor vehicle accident. Indeed, a post-accident investigation and rapid response will strongly dictate a successful result (or lack thereof) for motor carriers.
When an accident occurs, many motor vehicle carriers and insureds are not adequately prepared to respond. However, there are various tools that insurers and insureds can use – while working together – to gain as much information as possible as to how the accident occurred and learn the strengths and weaknesses of potential ensuing litigation.
Post-Accident Tools
At the outset, the insured and insurer should work together to prepare a checklist or outline with the following action items.
Post-Accident Investigation
As part of the immediate response the insurer needs to assign a point person to walk the insured through the post-accident investigation process. During the post-accident process, involve as few people as possible to limit emails and texts about the accident. The fewer people involved creates greater opportunity for statements to remain consistent and minimizes the likelihood of misinformation.
Obtaining Objective Information
Limiting the quantity of written statements and information is crucial. Too often Plaintiff’s counsel will use subjective written documents or accident reports to mischaracterize or confuse a jury as to how the accident occurred and even how the motor carrier responded to the accident.
Instead, the insured and insurer need to focus on obtaining as much objective information as possible to prevent Plaintiffs from mischaracterizing the insured and the accident. This includes gathering personal information from witnesses to conduct interviews, communicate with authorities and gather all physical evidence. Document the scene with photographs and direct the investigator to photograph all eyewitnesses so counsel can identify all of the individuals involved.
Investigating the Scene of the Accident
The investigator will need to scour the area of the scene following the accident. Indeed, cameras, such as Nest or closed-circuit cameras, are abundant in today’s digital society. Because Nest and similar companies purge data within 30-days of recording, identifying potential recordings needs to be conducted as soon as possible.
Experts and Preservation Letters
Retaining experts for accident reconstruction to create 3D roadway scans and to obtain data from the Plaintiff’s vehicles will also fill in key gaps at such an early stage of the potential litigation. The insurer should also send out preservation letters to potential Plaintiffs in order to prevent spoliation or set up a spoliation counterclaim if critical evidence is lost following issuance of the preservation letter.
Working Together
Additionally, the insured and insurer should work together with counsel to prepare documents such as fleet safety policies or document retention policies. Too often these items are prepared by lay persons who are unaware of or do not appreciate the potential for Reptile-theory questions or for the documents to be used out of context by Plaintiff’s counsel. The insureds and insurers should also work with counsel to discuss what types of cameras to have in the vehicle and where they should be placed (i.e. facing the roadway and the driver), which will allow the defense to learn the extent of liability as early as possible.
Conclusion
Obtaining as much objective information as possible accomplishes multiple goals. Firstly, gathering evidence can aid the insured and insurer to understand the positive and negative aspects of the case before litigation even begins. All parties involved can then have a frank discussion as to whether the case should be defended or resolved quickly because of bad facts – regardless of what the medical records show.
Secondly, the objective information collected plays a crucial role in assisting all potential client deponents in adequately preparing for their deposition. By providing them with familiarity of the full scope of the facts, they are better equipped to respond effectively during questioning.
Lastly, jurors increasingly require Defendants to provide them with a more detailed story. Defendants can no longer sit back and simply say the Plaintiff has not proven their case. Thus, conducting a thorough on-site investigation with experts provides the defense with a tangible and visual story that will assist jurors at trial. Whether it is Plaintiff or Defendant, whichever side best fills in blanks for the jury places themselves in the best position to win at trial.
Abstractly, the actions described above might appear to be a significant financial commitment to undertake during the post-accident and pre-litigation phase. However, investing several thousand dollars in defense expenses prior to litigation ultimately positions counsel in a much better position to defend the insurer’s and insured’s interests and seek a favorable outcome.
