Statistics show that more than 40,000 people were victims of motor vehicle fatalities in 2017, with distracted driving as a major contributor. Although April is Distracted Driving Awareness Month, it’s always a good time to focus on fleet safety for your pest control operation. As a business owner, it’s critical to identify potential risk exposures proactively in order to mitigate them. Getting behind the wheel today assumes more risks than ever, between technological advancements and drivers being more dependent on their mobile devices.
Aside from paying the ultimate price, which of course is the unnecessary loss of life, commercial drivers can be slapped with a number of costly violations for using handheld cell phones and, as their employer, your company may be liable. The Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) impose regulations that prohibit drivers who transport large quantities of hazardous materials from texting or using handheld mobile phones while operating their vehicles. In addition, as of July 2018, 16 states have now banned the use of a handheld cell phone while driving, with Georgia being the most recent to join the movement.
Employers can be subject to increased liability for serious or fatal motor vehicle accidents caused by a distracted driver, particularly in a state that has adopted a hands-free law or under two key legal theories of negligence:
• Under Respondeat Superior, (which is Latin for “let the master answer”) employers can be held liable for accidents caused by employees, if the employee was acting within the scope of his or her employment when the accident occurred;
• Or through Direct Negligence, which states that an employer is responsible for negligently hiring, supervising and entrusting a vehicle to an unqualified employee.
According to the Network of Employers for Traffic Safety (NETS), on average, a non-fatal injury crash at work that involves distraction costs the employer $72,442. However, attorneys of victims involved in a crash will not hesitate to name the employer in a lawsuit where a company vehicle was involved. There have been a number of notable cases that have resulted in significant jury awards against employers.
In one instance, an employee of an Illinois electrical contracting company was lost and using cell phone navigation when he ran a red light and seriously injured another driver. The employee and the employer were sued and came to a $4.1 million settlement. In another, an employee of a Georgia construction company reached for his phone to retrieve a message and crashed into a sedan that had stopped to turn left, seriously injuring the sedan’s passenger. Even though the driver was off the clock at the time of the crash, since the cell phone was provided by the company, the employer’s fine was $4.75 million of the settlement.
Here are three important lessons cases such as this can teach fleet managers:
1. When it happens to you, the plaintiffs will sue: Whenever applicable, the driver’s employer will always be named in the lawsuit, as the payout will usually be much larger from an organization than an individual.
2. A written cell phone use policy is not enough: Whether a policy is well-documented or not, empirical evidence shows that many employee drivers ignore written policies. The bottom line is that written policies alone are not sufficient to change employee driving behavior, and therefore are not sufficient to protect employers from risk and liability.
3. Policy enforcement is critical: Ask yourself, what, if anything, your company does to measure and manage compliance with its cell phone use policy. If the answer is nothing, the case law clearly shows that employers should expect to be held accountable for damages that occur when employees drive distracted.
Employers who want to minimize liability as much as possible must institute risk management programs to actively or passively enforce cell phone use policies. In addition, organizations that have fleet vehicles should review their insurance policy to determine whether cell phone use while driving may impact coverage and their fleet vehicle policy for compliance with applicable state laws.
Weisburger Insurance Brokerage, a division of Program Brokerage Corporation, is the nationally endorsed insurance broker of the National Pest Management Association (NPMA). With over 80 years of experience, our experts are able to review your current coverage and identify ways to best protect your pest control business during the dips and peaks of the industry. For more information, please contact Weisburger at 800-431-2794, [email protected], or visit our site at www.weisburger.com.
By Gary Shapiro
ART: KAREN ROACH/SHUTTERSTOCK.COM