By Paul Berne
Vice President-Claims
Lancer Insurance Company

The risks and threats associated with motorcoach crashes -- and the claims and lawsuits resulting from accidents -- are growing increasingly worse.

One of the primary sources of material used by plaintiff attorneys who sue motorcoach companies is the wording in their operations manuals relating to "absolute standards." This material can be extremely damaging in trying to defend claims against an operator.

Bus companies are repeatedly and unfairly punished or criticized for things they mandate as "must be done all the time." If they are not done and an accident or claim results, the affected company's operations manual is introduced into evidence and cases can get a lot worse ... and very quickly.

Word Games
A typical trouble spot is the language in the operations manual regarding driver positioning when passengers are exiting the vehicle. If the manual states: "Drivers must position themselves at the bottom of the steps at all times when passengers are exiting the bus . . .", and the driver is not there when someone falls, the company's insurer has a much tougher case to defend because its policyholder did not follow its own absolute standard.

The bus company now has some explaining to do:
· Why it wrote that requirement in the first place
· What type of training it provided to assure its drivers understood the requirement
· How drivers were managed to make sure they were constantly reminded to do this
· How compliance was monitored, and
· Did the company know or should have known the driver involved in the incident was at risk of not complying?

It doesn't matter that the cause of the fall may have had nothing to do with the driver not being positioned at the bottom of the steps. A plaintiff will work hard to convince the jury that, had the driver been there, the fall could have been avoided or the injury would have been much less severe.

A so-called "bus expert" will be hired to support that argument.

And, too often, juries will believe it.

The plaintiff will then put the motorcoach company on trial, asserting that it didn't provide adequate training on, or enforcement of, its own standard. Thus, the company doesn't care about safety; the jury gets mad; the money awarded to the victim goes up.

That being said, a well-intentioned but very frustrated bus company owner might begin to believe that a written operations manual is a "damned-if-you-do, damned-if-you-don't" proposition because he or she has to set down certain absolute standards but, on the other hand, not create an impossible standard of care.

This conundrum creates a huge operational challenge. For instance, if the company establishes an absolute standard, it has to make sure it thoroughly and constantly trains and monitors its employees responsible for adhering to it, and disciplines them when the standard is not met.

The company also must anticipate exceptions because, in life, there are few "absolutes."

What's an Operator to Do?
Examples of "wrong-and-right" language might help. And, while there are a lot of standards and a lot of different operating parameters, here's one specific recommendation that should provide guidance:

Write company standards in such a way that they can never be interpreted as "absolute." Also, add "kicker" language. That is, create exceptions to the standard when passenger safety, the safety of the vehicle or passengers' personal property may be at risk.

For example, with the driver position issue, if the bottom-of-the-steps rule is established, rather than writing "Drivers must always position themselves at the bottom of the steps when passengers are exiting the bus . . .," write: "On most trips, drivers should position themselves at the bottom of the steps when passengers are exiting the bus. Some situations may arise in which drivers determine that there is a risk of injury or damage to passengers, passengers' personal property or to the vehicle itself that requires his or her presence at another position. When that situation arises, drivers must use their best judgment on where to position themselves.

Also, on certain trips, such as convention pick-ups, our instruction to drivers is to remain seated when they reach a stop. On these trips, and others in which the driver has been instructed to not position themselves at the bottom of the steps, there is no requirement for drivers to do so."

How This Helps

Rephrasing the rule like this eliminates the "must always" language, which creates an absolute standard. It says "most trips." It also says that it is okay for drivers to not be at the bottom of the steps if there is a good reason (e.g. risk of passenger injury) to not be there.

When reading it to a jury, a company manager can explain that, while it is preferred that drivers position themselves at the bottom of the steps, in certain situations the driver does not have to be there.

But, here is the catch: Continuing testimony must be that new drivers are trained on this; it is discussed from time to time in driver meetings, and a reasonable effort has been made to monitor compliance.

Explaining that drivers are trained to identify passengers in need of help and to ask passengers if they need assistance when exiting would further help the defense.

The reality is that this "catch" applies to anything and everything written in your operations manual, whether it is an absolute standard or a general guideline. Is this language bulletproof? No. But it is a lot better than an unexplained stand-alone absolute standard.

The Correct Focus
If the broader standard is used in the company's operations manual and the company driver does not have a good reason for positioning himself or herself at the bottom of the steps when a passenger falls, the conduct will still be tough to explain.

This holds true especially if the driver is performing some other function that cannot be explained as reducing risk of injury to others. What this language will do, however, is a better job of keeping the focus on what caused the fall, rather than the content of the company's operations manual.

Any company which has other "absolute" standards, should add the kicker language where and when possible. The recommended: "Some situations may arise in which drivers determine that there is a risk of injury to passengers that requires his or her presence at another position ..." can easily be modified for other situations.

The key here is to emphasize safety and reduce risk to passengers or others as the basis for the exception. Most defense lawyers recommend using wording like: "An effort should be made to ..." or "It is advisable when possible ..." whenever a standard could be the subject of intense litigation if it is not followed. Contact your insurance company and ask its help in crafting the language.

Lawyers should be involved when the situation could involve a volatile jury issue. Insurers generally have the best and most experienced lawyers available to assist with this project.

Ultimately, it is up to each motorcoach company owner to make a determination of what works best for his or her operation. These suggestions are just that, "suggestions," which will help provide service to customers in a better fashion and allow drivers to exercise the good judgment formed by training and their experience to avoid the unfair traps set by wily plaintiffs.

The recommendations presented here are not intended to be legal advice; companies should always refer to local attorneys who are familiar with liability issues and personal injury litigation in those states in which they operate or do business.

Laws and rules applicable to the lawsuits filed against a company and its liability vary from state to state.

Loss Prevention is Key
Managing bus and motorcoach claims is a very tough business.
It's not easy to predict when bad things are going to happen, nor guess what crazy and irresponsible contentions are going to be included in lawsuits against affected companies.

Management's job requires it to develop strategies to prevent accidents from happening in the first place. The job of claims adjusters is to fairly evaluate and, if warranted, reduce or eliminate its policyholder's exposure.

It is critical, however, that claims professionals constantly inform their company's policyholders of what it is they're seeing on the back-end (i.e., reported claims and jury verdicts) that can be controlled at the front end, even if only slightly.

The trucking industry has had a plaintiff bar attacking its members' operations manuals for many years, but this strategy is still relatively new to the bus and motorcoach industry. It needs to get out ahead of it ... and quickly.