How Do I Collect My Downtime Losses After an Accident that Wasn’t My Fault?
By Kelsea Eckert, Esq.
Has a recent traffic accident caused your equipment to be down for repairs? Have you tried to collect your lost income from the at-fault driver? If not, you may have rights you didn’t know you have!
Knowledge of what to do before, during, and after an accident is key. Successful collection of lost profits involves a combination of preventive measures, proper documentation, and effective follow-up. Consider these ten steps:
Before an Accident: Safety Measures and Training
Develop rigorous safety training and protocols before an accident happens. Every commercial driver should know what do at the accident scene. Make sure there is an accident checklist in the glove box with important phone numbers to call.
Before an Accident: Insurance Coverage
Review all commercial insurance policies with your agent. Understand the coverage available and make sure your equipment is valued properly. Some coverages include physical damage, rental, loss of income, and uninsured/underinsured motorist, just to name a few. Remember, there are many uninsured motorists on the road. You don’t want them putting you out of business.
At the Accident Scene: Document Accidents Thoroughly
Immediately capture dash cam footage and email it to yourself. Take photos of the entire scene so it is clear what happened. Take close-up photos of damage to all vehicles, the other party’s license plate, placards and any other distinguishing markings on the vehicle. Take photos of the weather and road conditions. Remember, even though you were the innocent party, it’s up to you to establish fault.
At the Accident Scene: Collect Adverse Party and Witness Statements
If safe to do so, ask the adverse party to admit fault in writing or on a recording. Take a photo of their driver’s license to prove they were there. Gather statements from eyewitnesses as to what happened and who they believe is at fault. Make sure to gather witnesses’ contact information; it will be essential if the other party denies fault.
At the Accident Scene: Call the Police and Ask for a Police Report
Even if the at-fault party offers to pay you in cash for the damage in exchange for not calling the police, always call the police. Always request a police report. This report is an objective account of the incident and establishes liability. Oftentimes, once the at-fault driver has left the scene, they change their story and say they were not at fault.
After the Accident: Notify the At-Fault Insurance Provider (and Your Own Insurance Provider if Necessary)
Promptly inform the at-fault driver’s insurance company about the accident and set up a claim. You will need to provide them with all the necessary documentation to prove liability of their insured and your losses. Stay in regular communication with them. You may need to be the “squeaky wheel” to get the attention you deserve throughout the claims process.
If required, notify your own insurance company of the accident. Advise them the accident was not your fault and that you are filing a claim with the other driver’s insurance company. If requested, your adjuster will give you further instructions on the claims process.
After the Accident: Consult Legal Counsel and Other Experts
Seek advice from legal professionals experienced in transportation and accident claims to understand your rights and responsibilities. Other experts could include an Accident Reconstruction Specialist, Accountant, Independent Adjuster, and Valuation Expert.
Decide whether you will handle the claim on your own or through your attorney. Decide whether you will proceed through your own insurance company for repairs or not. Even if you are submitting a claim with your own insurance company, an attorney may be helpful in pursuing the adverse party for the expenses and losses your insurance doesn’t cover.
After the Accident: Document, Document, Document!
Submit written documentation supporting your claim for all repairs and out of pocket expenses. Repair estimates, repair invoices, towing bills, hotel, fuel, truck or trailer rental receipts, and diminished value reports are just a few of the expenses you may have.
In order to calculate the financial impact of the downtime, you may need to estimate your losses both in the past, as well as future. Calculations may be done in a variety of ways by using settlement sheets, records of canceled shipments, missed delivery deadlines, lost contracts, etc.
After the Accident: Stay Proactive
Continue to monitor the progress of your claim and advocate for your company's interests throughout the process. The claims process is not often quick or simple. Mitigate your losses by attempting to rent similar equipment. If rental is impossible, establish the impossibility through third parties’ documentation.
After the Accident: Negotiation and Settlement
Work with your attorney, accountant, mechanical expert and/or insurance agent to negotiate a fair settlement that compensates you for all property damages, out of pocket expenses, and downtime losses. If necessary, be prepared to engage in litigation to ensure you receive just compensation. Once a settlement has been reached, carefully review any release that is provided. Releases may restrict any further claims regarding the accident, including personal injury claims and the rights of your insurance company to pursue subrogation.
And finally:
Navigating accident claims and collecting downtime losses is complex and time-consuming. Having a knowledgeable team and providing clear communication with all parties are key to ensuring you receive the compensation you deserve.
Kelsea Eckert is the lead attorney with Eckert & Associates, PA. She has been practicing law for 35 years and enjoys representing small trucking companies across the nation on their downtime and other insurance claims. The firm can be reached for a free consultation at www.DowntimeClaims.com or 1-800-Downtime.
Note: This article is merely informative and should not be construed as legal advice. Always consult with an attorney before moving forward with an insurance claim or other legal matter.
