By Mark Boada, Executive Editor
More and more fleets are turning to telematics for the host of benefits they provide, from reducing fuel costs to improving driver productivity and safety. But telematics also has a potential downside: greater vulnerability to accident liability when the data proves a fleet driver is at fault.
It says here, however, that the benefits of using telematics generally far outweigh the risks. But the question remains: is there any way for fleets to protect themselves in these cases? Well, it turns out there is.
That’s the point that emerged from a recent NAFA webinar on the topic, “The Use of Telematics Data in Motor Vehicle Accident Litigation.” The presenters were Clifford Mendelsohn and Ryan Winkler, two attorneys from the Cleveland law firm of Tucker Ellis, LLP with extensive experience defending fleets in accident lawsuits.
Two potentially liable parties
What was clear from their presentation is that in any accident in which a fleet driver might be at fault, there are two different parties that might be held liable: the driver and the fleet or, more to the point, the organization for which the driver works. Telematics data collected in connection with an accident can determine that a driver was speeding and so be found at least partially responsible for the collision.
But Mendelsohn and Winkler pointed out that whether a fleet sponsor can be found responsible lies not in the data gathered from a single accident, but in the telematics data that documents a driver’s long-term road behavior: how often he or she was speeding and by how much, and how many times the data reveals incidents of harsh braking, which can indicate a pattern of distracted driving.
Telematics systems typically record and count such incidents daily, and it’s a common practice for fleets to rely on the data to rate how much of an accident risk each driver poses. Fleets open themselves up to liability, though, when they fail to take action against drivers with high risk scores, such as requiring them to take driver safety training lessons, limiting their driving privileges or, in the most serious cases, severing their employment.
While accident lawsuits involving telematics data have been common in cases involving tractor trailers, Mr. Mendelsohn said that over the past two years, his firm has seen an increase in the number of accident lawsuits involving light- and medium-duty vehicles. He also said that while lawyers defending fleets have argued that telematics data should not be available to plaintiffs or be admitted as evidence in certain cases, the trend has been for courts to overrule their objections, and that fleets should expect judges to allow access.
Mr. Winkler noted a third, emerging trend: the argument by plaintiffs that fleets need to achieve perfect safety performance, an argument that appeals to a jurors’ “reptilian brain,” the part that prioritizes safety and survival. The argument is designed to make a juror think that a corporate defendant must always select the safest alternative, that even the second-safest way means unnecessary danger.” But, he said, the law only requires fleets to take reasonable steps to address public safety.
Countering fleet liability claims
The attorneys noted that when telematics data is used to show that the fleet was negligent in managing at-fault drivers, fleets can be responsible for punitive damages approaching a million dollars or more. To protect themselves against claims of negligence, Mendelsohn and Winkler said fleets should take the following steps:
- Avoid suggestive language in policies and reports. Fleets should avoid language that needlessly inflames the emotions of a judge or jury. Fleets should refer to “incidents” instead of “violations,” “action items” taken with drivers instead of “discipline”, and its driver ratings as Level 1, Level 2 and Level 3” instead of “Low, Medium or High Risk”.
- Create a separate ranking that ignores seat belt use. Fleets typically raise a drivers’ risk rating when telematics systems indicate they aren’t using their seat belts. While this indicates the possibility that a fleet driver will suffer more serious injuries in a collision, it doesn’t have a bearing on the risk the driver poses to others on the road.
- Monitor telematics data regularly and take appropriate action. Fleets should be sure they monitor telematics data on a timely basis, that they communicate it to divers, and that they consistently respond to it in ways that aim at keeping fleet safety performance at a reasonably high level.
- Investigate and document driver complaints about bad data. Telematics systems aren’t perfect and sometimes record false data, like speeding on a parallel access road when the driver was actually on the adjacent interstate highway. Fleets should take care to investigate all driver complaints and delete any false incidents.
- Routinely monitor safety program effectiveness and address weaknesses. Fleets should regularly evaluate that its safety program is achieving their desired results, identify any weaknesses and ways to address them, including new technology, risk score criteria, the number and nature of reports, and responses to significant data.
Prepare to tell your “telematics story.”
Mendelsohn and Winkler said one of the most important tactics fleets can employ to defend themselves in accident lawsuits is to educate the judge and jury about the steps it has taken to maximize safety results. This, they said, amounts to documenting and telling a cohesive story about every aspect of their telematics program that demonstrates the fleet has adopted a policy and practices that are reasonable. The elements include:
- Industry benchmarks.
- Its purpose.
- How it identified driver behaviors to monitor.
- How it determined point totals to rate drivers.
- How it communicates to drivers.
- How it enforces the program.
- Documents that memorialize the creation, management and evaluation of the program.
The pair said it’s vital for fleets to have this story prepared in advance of a lawsuit, as it can be difficult to assemble under the pressure of court deadlines.