Telematics devices have helped fleets improve safety immensely by alerting them to patterns of risky driver behavior such as speeding and cell phone use. In turn, safety professionals have deployed many effective countermeasures, including process changes and driver coaching practices. However, some fleets aggressively avoid access to this helpful data, fearing that it will be used against them.
Theoretically, in post-crash litigation the plaintiff’s counsel could use the data to demonstrate that the fleet had a consistent pattern of unsafe behaviors that led to the crash. Moreover, it could prove that the fleet was fully aware of the risks but failed to properly act on them.
This raises a dilemma for many fleets: does accessing the data and the corresponding opportunity to prevent crashes present a greater benefit than the risks it carries with it?
According to legal experts, especially those with experience in trucking crashes, it is far better to obtain this powerful information to reduce crashes and claims costs. The benefits are too huge to ignore. Also, by reducing or eliminating crashes, fleets can proactively limit their exposure to post-crash litigation. However, it is equally important to manage the data very carefully, as it can be a powerful weapon in the hands of a skilled litigator.
Here are some key recommendations for managing the data to harness its benefits and limit its risks.
Have a consistent plan and stick to it
The safest and most successful fleets have strong protocols for reviewing and acting on telematics data. This includes daily reviews of key indicators, consistent practices addressing risky driver behaviors, and policies on dealing with those who do not improve. Don’t deviate from the plan even when tempted, such as when faced with the need to coach a long-tenured driver who is highly productive.
Identify areas of vulnerability
Just as positive trend data, such as a reduction in speeding events, can help a fleet, negative trend data can be very damaging. For instance, records showing that a driver exhibited a steady increase in risky behaviors, such as following too closely, but was allowed to continue driving unchecked, can be damning. In other words, evidence that the fleet had actionable data on which it failed to act can be especially incriminating. Identify poor trends and take action based on the evidence presented.
Limit data retention
Experts strongly recommend limiting data retention as doing so will also limit exposure. Since there is no mandated retention period for telematics data, like with ELD and maintenance records, there is no need to keep it longer than necessary. The general consensus is that fleets should keep the data for no more than three months.
Develop a positive narrative
While telematics data can present a threat to the fleet in a courtroom, it can also provide some shelter. The ability to show that the fleet actively uses telematics data to reduce risk effectively demonstrates the presence of a strong safety culture. Examples of how the fleet uses the data to reduce the frequency of crashes and crash severity are certain to frustrate a plaintiff’s attorney.
One trucking industry attorney, Doug Marcello of Saxton and Stump, pointed out that developing your own positive narrative is one of the most important things you can do. “If companies don’t write their own narrative with their data, the billboard truck crash attorneys will…and it won’t be favorable.” He went on to say, “Properly analyzed and managed data can be our best tool for defending a case. When the Billboard Attorneys fly in the usual experts to wax subjectively on the “standard of care,”’ you can refute it with objective evidence borne of data.”
Another trucking industry defense attorney, Ted Perryman with Roberts Perryman, added, “You cannot get away with burying your head in the sand. In post-crash litigation, if the motor carrier claims it does not maintain the data the plaintiff’s attorney will simply get it directly from the telematics provider. In one recent case, the plaintiff’s attorney argued that the ‘data was available to the motor carrier, literally at their fingertips, and they ignored it.’ On the other hand, if the telematics data is favorable and the driver has few, if any, adverse events, it can be a gold mine for the defense team. Telematics data can demonstrate that the motor carrier is monitoring its drivers, taking corrective action, and is a responsible corporate citizen.”
