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Continuous Driver Monitoring: The Legal Landscape

Continuous Driver Monitoring: The Legal Landscape

 Case Study

Continuous Driver Monitoring: The Legal Landscape

Scopelitis law firm explains the legal environment surrounding driver risk exposure and the advantages of driver monitoring. 

“As a general rule, employers are vicariously liable for any motor vehicle accidents caused by their employees.”

In 2009, Eduardo Delgado, an employee of Xerox, was driving a company vehicle when he struck and killed 63-year-old Elvira Gomez in California as she crossed the street on her way home from church. Delgado was driving under the influence of alcohol at the time and had a history of at least two prior DUIs. Mrs. Gomez’s adult children and husband filed a wrongful death lawsuit against Xerox, arguing among other things that Xerox was negligent in allowing Delgado to drive a vehicle without first checking his Motor Vehicle Report (“MVR”)—a fact admitted by Xerox—which would have revealed his prior DUIs. In fact, had Xerox checked Delgado’s driving record, it would have discovered that his license was actually suspended due to his DUIs. After a lengthy trial, the case ultimately settled, with Xerox agreeing to pay Ms. Gomez’s family $5 million for their loss.

“The most common direct-liability theories in highway-accident cases are negligent hiring, negligent selection, and negligent entrustment.”

Unfortunately, the Xerox case is not an outlier; it is one of many in which companies have been forced to pay millions of dollars in damages due to accidents caused by the employees or contractors they put behind the wheel. The legal theories upon which these companies are held liable vary from case to case and from state to state, but they share some common themes.

As a general rule, employers¹ are vicariously liable for any motor vehicle accidents caused by their employees under the doctrine of respondeat superior, which imputes the conduct of the employee to his/her employer under agency principles. Of course, there could be exceptions to the rule, including, for example, if the employee is operating the vehicle outside the scope of his/her employment when the accident occurs. But generally speaking, employers—and their insurers—will be held responsible for any damages stemming from their employees’ accidents.

At the same time, an employer could also be directly liable to the injured party(ies) if the employer’s own independent negligence was the proximate cause of the injuries.² This liability is distinct from vicarious liability in the sense that the latter is premised on the employer’s master/servant relationship with its employee, whereas the former is premised on the employer’s own actions or inactions. This type of “direct” liability is at the heart of this paper, and it’s precisely the issue that Xerox faced in its lawsuit. It is also the type of liability that can open the door to punitive damages (i.e., those meant to punish the company for its egregious conduct) on top of compensatory damages already awarded to the injured party. The most common direct-liability theories in high-way-accident cases are negligent hiring, negligent selection, and negligent entrustment. Under these theories, the injured party alleges that the company was negligent in allowing its employee/subcontractor to operate a motor vehicle, and, but for that decision, the accident would never have occurred.

“Companies should be doing something to ensure the individuals who drive vehicles in connection with their employment are safe.”

Often, the company’s alleged negligence is premised on its failure to adequately vet the employee’s driving history before allowing him/her to operate a vehicle on the company’s behalf. In Xerox’s case, for example, the plaintiffs alleged that the company was negligent in failing to check its employee’s MVR, which would have revealed his prior DUIs and the fact that his license was suspended. What precisely is a company’s duty with respect to vetting its drivers before allowing them to operate a vehicle? Unfortunately, that’s a question with no definitive answer—one often left to the judge or jury to decide what a “reasonable” company would have done under the circumstances. What’s clear, however, is that companies should be doing some-thing to ensure the individuals who drive vehicles in connection with their employment are safe. And the most prudent something involves verifying the driver has a valid license and checking his/her MVR for prior violations/accidents, at a minimum. As addressed in the next section, for companies that are subject to federal and/or state motor carrier safety regulations, this is a legal requirement. But even for those who are not, it is best practice.

¹ Companies that engage independent contractors to operate motor vehicles on their behalf rather than employees may not be vicariously liable for the contractor’s operation of those vehicles, but this depends on a number of factors, including, for example, whether the state law at issue considers the operation of a motor vehicle to be an “inherently dangerous” activity and whether companies have “non-delegable duties” with respect to their operation. Additionally, pursuant to federal and state leasing regulations, motor carriers who contract with independent-contractor owner-operators are generally vicariously liable for any accidents caused by those owner-operators as a matter of law. And regardless of whether companies utilize employees or independent contractors to operate vehicle, the companies could still be directly liable for damages stemming from the companies’ own negligence.

² Some state laws, but certainly not all, provide that an employer who is vicariously liable for its employee’s conduct cannot be separately liable to the injured plaintiff under a theory of direct liability.

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Affordable Real-Time Motor Vehicle Reports

Affordable Real-Time Motor Vehicle Reports

Save Time & Money

On Instant Driver Reports

Capture up-to-date driver records for all 50 states instantly!

SambaSafety instantly delivers the most current driver record data, providing Motor Vehicle Records (MVR) in all 50 states and the District of Columbia, allowing agents to ensure clients are getting the most out of their policy. Whether requesting a single transaction or processing millions of quotes, our solution helps agents make fast, accurate and informed business decisions.

Save Time, Save Money!

Increases efficiency with a standardized intuitive format.

WebMVR reduces MVR spend and is cost-effective for use at quote.

Quote more Accurately with Real-Time Intelligent MVRs

MVRs include license details such as state issued, status, expiration, suspensions, revocations, violations and endorsements.

Immediately receive driver records in a standardized, easy-to-understand format at a fraction of the price!

Learn How to Save Time & Money

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Lowering Commercial Automotive Insurance Costs

Lowering commercial automotive insurance costs:

Best practices for taking control

 

 

 

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As safety technologies become more sophisticated, companies have more visibility into the behaviors of employees out on the road. With seemingly endless increases in insurance premiums, thanks in part to escalating legal settlement costs and economic corrections, can companies use this new level of visibility to take control over commercial insurance costs? What does it mean to control insurance costs? Simply put, it’s about taking steps to reduce your risk. Achieving the prized trifecta of better drivers, safer communities, and lower insurance rates requires a razor-sharp adherence to best practices that decrease the chance of accidents and lower your exposure to negligent entrustment lawsuits.

The hidden risks can’t go unnoticed

In a 2014 driver risk and safety management survey conducted by Automotive Fleet and SambaSafety, 11% of respondents indicated they had been subject to a negligent entrustment lawsuit.

%

admitted they don’t have a driver safety program.

%

said they don’t monitor their drivers in any way

%

said they don’t pull annual motor vehicle records (MVRs).

%

said they use an electronic MVR system.

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Driver Monitoring – Myth vs. Reality

Driver Monitoring: Myth vs. Reality

Busting three common driver risk management myths that could put your business at risk

Despite what the myriad of industry experts might tell you, driver monitoring programs and technologies are not all created equal. In fact, this overused term varies widely not only in its definition but also in its interpretation.

To complicate the picture, many service and solution providers claiming to “monitor” drivers really only address one element of driver monitoring. The space between the myths and realities of comprehensive driver monitoring can make a huge impact on your business’ exposure to risk, litigation and insurance premium costs. But what is true driver monitoring and how can you utilize it to make your drivers and communities safer? And what are some of the most common myths that put businesses at the highest degree of risk? Before we explore the three most common myths of driver monitoring, it’s important to understand why driver monitoring is critical — and what it truly means to monitor drivers.

But in order to truly know and act, businesses must be able to confront their own misconceptions about what effective driver monitoring really entails.
Download the white paper and find out how busting these myths can optimize driver management and significantly reduce risk.
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DS Services: Improving Safety Policies and Procedures

DS Services: Improving Safety Policies and Procedures

Making a Smart Strategy Brilliant

Improving Safety Policies

The DS Services team already had smart safety policies and procedures in place and is committed to continuous improvement. It sends employees through driver education programs and company-specific safety training, utilizes telematics and automatic braking devices on-vehicle, and implements a strict safety points program, while regularly retooling its motor vehicle policy. DS Services prides itself on having a truly progressive practice – and that requires compliance, safety, risk, and HR to work as a team.

“We don’t use technology for disciplinary reasons,” admits Clayton. “Our goal is to identify unsafe behavior and coach drivers to change using the tools we have in hand. Our drivers realize that, and many will attest to how valuable it is and how it’s helped them.”

Implementing SambaSafety was the next step in elevating its safety policy. “With SambaSafety, we are able to demonstrate to our insurance companies, customers, and employees that we’re committed to safety,” adds Shetikka Royal, senior risk analyst, DS Services. “We intend to use analytics, trend information, and data from SambaSafety to further improve our workers’ compensation program. We’ll be able to incorporate preventive measures and better correlate driving behavior with risk.”

 

We’ve reduced our reliance on self-reporting. Being able to flag drivers before they tell us there’s an issue compliments the mandatory self-reporting policy and makes safety more efficient. If safety is doing its job, then there’s less risk.

Shetikka Royal

Senior Risk Analyst, DS Services

DS Services has had SambaSafety in place for 18 months, and the potential ROI is already becoming obvious. In addition to saving the company hundreds of hours a year in manual driver monitoring, DS Services also recognizes a driver issue before it’s too late. “Pre-maintenance is what this is all about,” continues Gay. “We don’t want to fix a problem; we want to prevent a problem. Like with the med cards, drivers can get pulled for not being updated with the state. We prevent that – keeping them on the road and helping them get paid.”

Clayton adds, “The soft cost is huge. Whether we see it today, or we see it in a couple of years, with a program like this, being able to recognize an issue before it’s too late is going to save many employees, and that’s good for business.”

See How DS Services Reduced Driver Turnover

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DS Services: Reducing Driver Turnover

73% Success Rate for Driver Interventions

Similar to most organizations, DS Services recognizes its employees are valuable assets, therefore management wants to ensure they hire talent that reflects similar values. At the same time, DS Services must put its safety policy and customers first and continuous driver monitoring helps DS Services accomplish both goals simultaneously.

Driver monitoring and near-real-time notifications allow managers to work with individuals to solve their issues, before being notified by the state. For example, employees who have suspended licenses due to child support, a lapse in insurance coverage, or a failure to update a medical card are now identified before going out on the road. With SambaSafety, managers can see potential driver violations early – and reassign those drivers to other jobs and/or assist them in clearing up the issue.

“We’re actually doing our employees a favor,” explained Mark Clayton, director of safety at DS Services. “Once employees reach the point of disqualification by not telling us and getting pulled over, we have no choice. Now, we can flag these things and save employees from the adverse points that may eliminate them from our team.”

After all is said and done, SambaSafety helps us keep our drivers on the road. And drivers on the road means we’re making money. Jason Gay

DOT Compliance Administrator, DS Services

It’s human nature to wait until the last possible minute to change behavior. For many people, they won’t exercise or eat well until the doctor tells them they might die. DS Services has found the same is true for its drivers. “It really gets our drivers’ attention when we tell them they have one final chance to turn things around,” explains Belcher. “We don’t get any joy by disqualifying people. Through our intervention process, we have seen more success than failure. Sure, we can’t save everybody, but we have been able to retrain and keep a number on board. That benefits us all.”

In addition, early notification boosts the management team’s morale. “Branch managers want to know about issues sooner rather than later because it affects them directly,” Gay adds. “They appreciate the fact that they can get things taken care of, so everyone has a smooth day – drivers get on the road, customers are served, and we make money. Now that’s good for everyone.”

See How DS Services Made Safety Smarter

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