LOOKING FOR SOMETHING?

Looking at Fleet Management Through a Legal Lens

Aggressive driver behaviors. Improper use of equipment. Distracted driving. These are just a few issues that increase a utility fleet’s risk of preventable accidents that can lead to multimillion-dollar payouts and ignite a public relations firestorm.

So, what can you do as a fleet manager to help protect drivers, the public and your company’s reputation?

UFP recently spoke with defense attorney John O. Radeck Jr., a partner at Charleston, South Carolina-based Hood Law Firm (www.hoodlaw.com), for his legal perspective on how fleet managers can improve safety and reduce risk exposure for their employers. Here’s an edited version of our conversation.

UFP: What areas do you see where utilities have the most significant risk exposure with their fleets?

John O. Radeck Jr.: The biggest area is technology – the vast quantity of information that can be received through telematics. We see an unwillingness from many companies to fully engage with telematics proactively.

As a result, a lot of information can be weaponized from the plaintiff’s perspective; that’s easy for them to nitpick.

Fleets shouldn’t just be collecting telematics data. They should use that information to correct specific driver behaviors and improve safety. Instead, too many companies just let that data sit there as a vast ocean of information that becomes a vulnerability the plaintiffs could exploit.

What vulnerabilities would plaintiffs be looking to exploit with a fleet’s use – or lack of use – of telematics? 

The plaintiffs want to know, does the company use telematics data to enforce the safety policies they have in place? Or do they ignore that data?

One of the critical parts of the fleet manager’s job is to be able to look at that data, identify trends and problem areas, and then fix those issues.

What is that data telling you about the condition of the vehicle? What is it telling you about the driver’s habits? Whatever the case, the question is this: Is the company proactive in enforcing its policies? If your company is not doing that, and you have this telematics system just collecting data, that’s a vulnerable point for you.

There’s this philosophy that collecting data is a vulnerability in itself. What are your thoughts on that?

That’s old-school versus new-school thinking.

The old-school philosophy is the less information, the better. We don’t want to document things.

But that approach makes you vulnerable, especially with plaintiffs’ attorneys, who are much more aggressive nowadays. With the enormous payouts awarded, these attorneys are not worried about costs. They can get funding from third parties to push these cases.

And the last thing you want is your best defense at trial being, “We don’t have information on that.”

Instead, you want to build a good company story by providing the information. Otherwise, you’ll be painted as a bad company at trial.

Suppose a fleet decided not to include all available advanced driver assistance systems on a vehicle. And then that vehicle is involved in a crash that the missing technology might have prevented. Is the utility company exposed to risk for that decision?

That’s not a specific issue I’ve dealt with yet. But my initial reaction goes back to being proactive and aggressive about using all the safety measures you can.

Otherwise, you’re potentially adding another piece of the puzzle that the plaintiffs could weave into an entire patchwork quilt – a larger narrative that strengthens their case.

It’s the Reptile Theory [see www.lexisnexis.com/community/insights/legal/b/thought-leadership/posts/the-reptile-theory-a-game-changing-strategy-in-personal-injury-lawsuits for more] at work. The plaintiffs will say, “Look, you had a choice, and you chose the less safe option.” That will always win.

What if, say, the vehicle is fully equipped with the available safety systems, but the operator has disabled one or more of them? What’s the risk exposure to the employer?

That’s a significant risk. And I would say that falls within the realm of inflammatory conduct – where a driver has chosen to disable the system. Presumably, that would be against company policy.

The company could be on the hook because they chose to hire that individual. But it really boils down to whether there is a culture of safety.

In this case, the company chose to hire a person who thought it was OK to disable this equipment. So, my thought is this: Is there a policy on this issue from the company? What were the instructions from the company to this employee?

If there were no policy, that would be a dangerous fact for a potential nuclear verdict.

When it comes to distracted driving, what’s the vulnerability there?

When you look at the nuclear verdicts, the data shows that phones are involved in most of those cases. Cellphones are obviously an issue, whether it is a primary factor or not.

But there’s only so much a company can do. The key is establishing that the company has made efforts to curb distracted driving with its policy – and the individual chose to violate it.

What are your thoughts about camera systems on vehicles?

Outward-facing cameras can be helpful. But I’m not so sure how necessary inward-facing cameras are.

I have a case with cameras involved. This 18-wheeler was making a turn. The plaintiff had 10 seconds before he impacted the side of the 18-wheeler. The allegations were that the 18-wheeler pulled out in front of the plaintiff.

The plaintiff had 10 seconds to slow down and avoid the accident. Instead, he stayed in the lane and looked like he had never braked. So, in that situation, the cameras were beneficial because they provided us with a comparative negligence argument.

If you were to think of a checklist that every fleet manager should have in mind to help protect their company from a legal perspective, what would be on that list? 

In no particular order, I would consider these questions: Are you proactive in using telematics? Are you setting alerts and diving into the data to identify and address potential issues? Is your company enforcing its vehicle safety policies? What are you and the company doing today to build a culture of safety where management and employees are taking ownership of those policies?

It’s one thing to have a policy in place. But if it’s not enforced or people don’t take ownership in following it, that’s just as bad as not having a policy at all.

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Sean M. Lyden

Sean M. Lyden is the editor of Utility Fleet Professional magazine.

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