The Importance of "Evidence Preservation": Part 2 - Field Adjuster

Robert Franklin posted on 2009/12/04 |

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. This is Part 2 in a nine part series of related discussions. The full list of the parts to this series appears following this installment.

A motor carrier, and/or its insurer, will typically have several people respond to the scene of a serious accident. The Company, for example, will usually have a safety representative respond. In addition, defense counsel may respond, along with certain other vendors, such as an accident reconstructionist.

One of the people who may assigned to help respond to, and investigate, an accident, is a field adjuster, often referred to as an independent adjuster, or “IA” for short. The IA may play a very important role. Accordingly, each entity should have a network of qualified IAs in place, as part of its “Go Team”.

It is imperative that the IA be accessible on a “24/7” basis. Accordingly, he or she should provide cell and home phone numbers, as well as office ones. Moreover, a back-up or substitute should be identified, with similar contact information, in the unlikely event the IA is not available when called upon.

It will, of course, do no good to have an IA respond to the scene if he or she is not properly trained. The IA, for example, should know when DOT regulations require post-accident drug and alcohol testing, as well as the particular Company's internal requirements in that regard. The IA should also be properly trained in terms of witness interviews, including knowledge of the Company's position with regard to when recorded ones should be obtained.

In addition to identifying and interviewing witnesses, the IA may also be instrumental in following-up with regard to other information and documentation. For example, he or she may be able to help facilitate obtaining a copy of the police report early on, as well as to possibly speak with the responding officer while the event is still fresh in his or her mind. In addition, the IA may obtain photographs of the scene, and to note the existence and location of debris and other physical evidence which may be important, and to see that it is preserved. The IA can also assist in terms of having any available data from any EOBR on the subject power unit downloaded and preserved.

One of the advantages of utilizing an IA is that it is very cost effective, relative to some of the other vendors who may be utilized in more serious accidents. Accordingly, an IA may be assigned when an accident is not severe enough to warrant immediate assignment of defense counsel or an accident reconstructionist. The IA may also be instrumental in helping to resolve minor potential claims early on. Accordingly, one should be willing to extend a certain amount of discretion and authority to the IA, when he or she develops a trust level with the adjuster, so that IA can settle small claims “on the spot” when the opportunity arises. Those opportunities often disappear when people thereafter consult with counsel, or otherwise decide to inflate their claims.

When defense counsel is to be involved in accident response and/or claims investigation, it is important to have counsel oversee and “direct” the IA's activities, in order to maximize the potential for protecting any resulting work product under the applicable privileges. Communication, as with all aspects of claims, is also important in terms of the IA's work and findings. He or she should be careful to know when to provide written reports, and in what format, as well as when it is better to simply provide a prompt verbal report.

There is no set “recipe” for success in terms of responding to, and investigating, an accident. The use of a qualified field adjuster, however, may go a long way to identifying and preserving evidence, and, as noted above, to possibly resolving claims early on.

The "Preservation of Evidence" Series

If you would like a copy of this, or any other part of this series, or to be placed on a distribution list, feel free to contact me or sign up for BTTV blog updates.