After an accident, insurance professionals must quickly launch a thorough investigation. It’s important to dot all your I’s and cross all your T’s, as missteps early in the investigation could result in greater exposure for the insured as well as the insurance company.
The initial investigation
Nearly all communications that take place in the aftermath of an accident will be discoverable in the event of future litigation. Adjusters should assume that everything they say or write down may be seen by attorneys for opposing parties as well as the jury. Be sure to document only factual observations, without speculating, exaggerating or opining. For instance, don’t include guesses about what must have been the cause of the accident. Juries give great weight to “gut opinions,” especially if they are adverse to your company’s interests. Opposing attorneys will try to use your initial wrong guesses against you in court, and juries will punish your side if they feel you are trying to cover something up.
When interviewing witnesses, advise them to tell the truth and stick only to the facts. If they didn’t see it, hear it, touch it or smell it, they shouldn’t be commenting on it. Witnesses are often emotional after an accident, which can distort their statements about what happened. Some may feel guilty and apologize when they are not at fault. Some may have unclear motives or a desire to play “expert.” Initial reports are viewed as the most honest and accurate, so they carry a lot of weight with a jury.
Involve an attorney in the investigation
For significant accidents, it is advisable to involve an attorney as early in the investigation as possible. Attorneys can screen witnesses before they give interviews, redirect witnesses when they start to go down a dangerous path of commentary, clarify any confusing comments, and be sure to touch on all the key issues that may arise in litigation. Further, Texas law allows for some aspects of an accident investigation to be privileged from disclosure to the other side. This privilege is much broader and much easier to apply to an attorney’s notes and investigations than to the company’s notes and investigations. While an attorney’s notes are almost never discoverable, a company’s own notes on the investigation are much more likely to be made available to the other side.
OSHA reporting and the first 24 hours
When the accident in question involves a work-related injury or fatality, the insurance professional must be mindful of the Department of Labor’s Occupational Safety and Health Administration (OSHA) reporting requirements. OHSA can impose various citations and significant monetary penalties on the employer for violation of reporting protocols.
Regardless of their industry or size, all employers must report an employee fatality to OSHA within eight hours of occurrence. Severe work-related injuries must be reported within 24 hours. Severe injuries are defined as those requiring in-patient hospitalization or those involving amputation or the loss of an eye. Note that in-patient hospitalization does not include treatment in the emergency room. Serious injuries or deaths that resulted from a motor vehicle accident on a public street or highway or on a commercial or public transportation system do not have to be reported to OSHA.
Work-related fatalities and severe injuries can be reported by calling the nearest OSHA office or the OSHA 24-hour hotline at 800-321-6742, or online. The report must include the business name, the name(s) of employee(s) affected, location and time of the incident, a brief description of the incident, contact person and phone number.
If you need assistance with an insurance law or OSHA matter, contact Sheehy Ware Pappas & Grubbs. For more than 20 years, our insurance attorneys have successfully represented insurance companies in a broad range of disputes, including appellate representation. Our OSHA attorneys have assisted hundreds of employers in OSHA matters, including compliance, investigations, settlement mediation and litigation.