3/13/2019

The “He Said, She Said” Dilemma

Determining who’s right in a passenger-commercial vehicle accident

By Michelle A. Maggs

The task of a claims handler is to investigate and resolve claims. The task of a trucking claims handler is to investigate and resolve claims with the added understanding of those features particular to commercial vehicles and the trucking industry.

A lot of what we do in claims handling is move the line in the sand. Does Driver A bear greater responsibility for the accident than Driver B when, all things considered, both drivers seem equally responsible or not responsible?

For starters, trucking and commercial vehicle accidents can be expensive claims for the commercial carrier for several reasons. Non-commercial drivers involved in a collision with a commercial vehicle frequently see dollar signs, knowing that the commercial carrier is obligated to carry significant insurance and may be willing to settle disputable claims in order to avoid mounting defense costs.

Private vehicle drivers are more likely to have passengers, and passengers are considered passive participants in the distribution of liability. The emotional factors in these accidents are high; young drivers or minor passengers can be traumatized by an accident with a commercial vehicle even if the private driver is at fault. Frequently, private drivers are angry because they were honking at the commercial driver, not realizing that the driver was sitting behind a noisy, rumbling diesel engine and unable to hear them.

On the defense side, trucking claims require a unique understanding of what the commercial driver sees and hears from inside a tractor. A tractor driver pulling a commercial trailer is not going to be aware of a private passenger vehicle closely passing them on the right side. Commercial trucks have several blind spots, and private drivers generally are unaware that these blind spots exist.

In terms of tangible contact with the driver inside the tractor, the trailer of a commercial vehicle is relatively inert. Contact can be made with a solid or moving object, but the tractor driver may not even feel it.

Additionally, private drivers often don’t consider the combination of weight and speed incumbent in a slowing tractor trailer when a passenger vehicle pulls in front of one with insufficient distance. Likewise, commercial trucking drivers have to consider whether they can safely slow down and, if not, do they risk rear-ending the passenger vehicle in front of them or jack-knife the trailer into the vehicle beside them? When the police officer at an accident scene interviews each driver, the commercial driver is going to say that the private vehicle pulled out in front of the tractor and there was no room for a safe stop. The private vehicle driver is going to say there was plenty of room. Who is right?

Piecing Together the Puzzle

In considering the distribution of liability in a “he said, she said” scenario, we look at several things.

The police report is the point of origin for the investigation even before it is issued. Weighty factors for any investigation include which driver was cited, any references to fault attributed to either driver in the narrative, and any indication of fault inferred in the diagram.

Driver interviews obtained by the claims professional are generally more thorough and involve a more detailed line of questioning than questions raised by the police officer. Sometimes an early idea of liability that is formed based on the police officer’s investigation can be clarified or mitigated—for example, if the investigating claims handler determines through additional statements that a third-party driver was distracted by a crying baby in the back seat.

Frequently, witness statements can be the deciding factor in a “he said, she said” debate. In the case of a witness who firmly supports the version of one driver over the other, this may be one of the most important factors in determining liability.

Driver photographs also can provide scene and damage information that cannot be recreated later. Fuel tank puncture leaks on the roadway can illustrate the point of contact. This can be very telling in a case where the point of contact is in dispute.

Vehicle damage can also tell a story sometimes better than words. For instance, scraping marks are generally seen in side swipes. The direction of vehicle damage can support a version that one driver was passing ahead of the other. Puncture marks from a commercial truck to a passenger vehicle with no scratches or paint transfer on the commercial trailer can support the idea that a private vehicle got too close to a trailer tire rim, and the private vehicle was pierced by the rim’s lug-nut cover.

The availability of videography of any kind can be “bonus-round” evidence. A dash cam, Ring doorbell, and store or streetlight surveillance can provide a real depiction of the accident occurrence and can be particularly beneficial if a driver gives a false version of the accident that is then contradicted by the videography. Both in the decision to deny a claim and in defending a claim at trial, the existence of a video that directly contradicts the potential testimony of a driver can be the difference in a denial of liability during the claims process or a defense victory at trial. In the case of dash-cam footage shot directly from the interior of one of the participating vehicles, this type of evidence can trump all other evidence because its depiction can be irrefutable. In addition to this, area satellites are another tool that can give a claims reviewer a real understanding of the traffic conditions, number of lanes, directional signage, span of roadway, and shoulders depth.

Lastly, knowing that a driver has a history of reckless driving, DUIs, or prior claims can lead the claims handler to consider background factors that can be used in claims negotiating.

Right of Way Wrongs

Right of way is generally determined based on the premise that drivers going straight ahead in the lane they have possessed for a reasonable distance have the right to continue to possess that lane pursuant to that location’s roadway rules. Once a driver relinquishes a lane by changing to another lane, he is subject to the roadway rules governing this lane change.

Failure to yield is ultimately the cause of the majority of trucking accidents, whether the failure to yield occurs on the part of the private driver or the commercial driver. Right of way can usually be determined by roadway signs, and police officers and private vehicle drivers rely on these signs in the consideration of liability.

However, sometimes right of way and failure to yield must include a consideration of the allowable stopping distance of a commercial vehicle with air brakes. Commercial air brakes utilize the compression of air to a brake piston when the brake pedal is depressed. Air brakes are used in commercial vehicles for their reliability in executing the task for which they are utilized: slowing or stopping a commercial vehicle weighing 80,000 pounds without cargo.

The hydraulic system of a 5,000 pound passenger vehicle is sufficient for its task, and generally the passenger vehicle can still be stopped if there is a slow hydraulic fuel leak. However, the weight ratio of a commercial vehicle to a passenger vehicle is 16 times the weight of the passenger vehicle and should be considered when anticipating stopping distance before changing lanes in front of an oncoming commercial vehicle. Trucking claims handlers may need to apply this interpretation of right of way in negotiating trucking claims.

It is this lack of understanding of weight ratio—both on the part of the commercial driver and the passenger driver—that frequently causes rear end collisions.

Contributory and Comparative Negligence

Pure comparative negligence is where a claimant who is found to be 90 percent at fault can still recover. The states that employ pure comparative are Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington.

The risk inherent in defending a loss in a “pure comp” state is that if the damages are $10 million and a defendant is only 10 percent at fault, that’s still a $1 million verdict. Therefore, it’s a risky venture to defend a case with catastrophic loss in a pure comp state. Conversely, in a claim with a low-value loss, attorneys are going to be less likely to be interested if they are not going to be able to obtain a big recovery because of a low-liability percentage.

Modified 49 percent, or “mod 49,” employs the premise that if a claimant is found to be 49 percent or 50 percent at fault, a court will modify the damages by calculating 49 percent or 50 percent of the award. If the claimant is found to be 51 percent liable, the claimant will be barred from recovery. This requires a court to risk having a verdict overturned if the court allows a 51 percent bar on a claim with serious damages. In these cases, the evidence has to weigh heavily on the side of the defendant for a court to compel a damaged claimant to walk away empty handed over a one-percent difference. These states would be Arkansas, Colorado, Georgia, Hawaii, Idaho, Kansas, Maine, Nebraska, North Dakota, Tennessee, Utah, and Wyoming.

Modified 50 percent, or “mod 50,” is somewhat similar to mod 49 in that it bars a claimant who is more than 50 percent at fault. Again, this is a risky venture in defending these claims if there is a disparity among the parties on how solidly the evidence supports a 50+ percent bar against negligence. Those states would be Connecticut, Illinois, Indiana, Iowa, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, West Virginia, and Wisconsin.

In negotiating a “he said, she said” claims resolution, the goal is to use trucking knowledge, investigation, and research to move the line in the sand in a direction that considers the unique aspects of the commercial insured.



Michelle A. Maggs, AIC, is senior casualty adjuster at Crawford & Co. michelle_maggs@us.crawco.com

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