Webinar Replay #106: Telematics – Safety Tool or Legal Landmine!

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Steve Kessler: Good afternoon, welcome, everyone, to the INFINITI Fast Forward webinar series. Appreciate you taking some time out of your day to join us today.

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Steve Kessler: My name’s Steve Kessler, and I’m gonna host the program.

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Steve Kessler: We have a great topic today. You know, we in this industry have spent a lot of time and effort and money, on, a variety of different ways to gather data. Telematics, we have cameras, we have ways to know

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Steve Kessler: how our truck is running, what kind of miles to gallon we’re getting, whether we get hard brakes, we get all kinds of great data. In fact, a huge amount of data.

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Steve Kessler: And, that’s a great, tool to have as far as, helping to improve safety in our companies, but at the same time.

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Steve Kessler: If we don’t handle that data correctly, there could be some issues that might arise, especially if we’re, sadly in a position and involved in a lawsuit. So we’re going to talk about telematics, whether it’s a safety tool or a legal landmine. So that’s our topic for today.

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Steve Kessler: A couple of housekeeping items, and then I’ll introduce our panel here. First of all, everybody that’s joined us today is muted, so we can’t hear you.

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Steve Kessler: So if you want to communicate with us, you can put your information in the chat box down there, or you can use the Q&A box if you’d rather pose your question there. We can see all those comments here on our side, and we’ll try to address those

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Steve Kessler: questions generally toward the end of the program. We’ll kind of leave some time for Q&A then.

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Steve Kessler: And just so everybody knows, the webinar’s recorded, so we’ll make sure to send out a link to everybody that attended and registered, so you can share it with folks that, couldn’t join us today.

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Steve Kessler: Let me introduce first my co-host, Mark Rhea. Most of you know Mark, he’s been on pretty much all of our webinars over the years.

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Steve Kessler: Mark’s an industry veteran, certified director of safety, and is involved in a lot of, groups, as it relates to safety and, and trucking and,

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Steve Kessler: Stays very active in the business. He was a transportation executive for, more than 35 years, I believe, so…

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Steve Kessler: Mark, what’s your thoughts about our topic today?

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Mark Rhea: Well, you know, I was talking to Doug before we started, you know, I get asked the same question multiple times these days, which is, what do I keep, and what can I delete, and what’s actionable, and what’s not actionable?

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Mark Rhea: As the data, the metrics, the dash cams, the thresholds.

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Mark Rhea: is overwhelming, and and consuming, so hopefully today we can get some insight on sorting out all that to what… to determine what is actionable, and what do we keep, and what can we delete. So, it’s a great topic, and really looking forward to Rob and Doug’s,

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Mark Rhea: Presentation today.

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Steve Kessler: Great, thanks, Mark. Let me just go ahead and introduce our, our, our experts here today. I’d like to, first of all, introduce Rob Abbott.

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Steve Kessler: Rob’s the Vice President of Corporate Strategy for Fleetworthy, which is a transportation services company that provides industry-leading solutions for fleets to manage safety, compliance, and efficiency.

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Steve Kessler: Rob came to Fleet Worthy from Lytics, which is the largest provider of cloud-connected video event recorders to the trucking industry, so he’s got a lot of experience with the stuff that we’re going to talk about.

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Steve Kessler: And there, he served as Vice President of Sales for Strategic Fleets.

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Steve Kessler: Prior to that, Rob, prior to Linux, Rob was Vice President of Safety for the American Trucking Associations, which, as you all know, is the largest trade association representing the trucking industry.

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Steve Kessler: And in that capacity, he promoted and defended interests of the nation’s leading fleets on issues such as hours of service regulations.

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Steve Kessler: CSA program. Abbott had previously worked as a safety professional in the trucking industry, and most recently was a vice president of safety for Transforce.

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Steve Kessler: So, Rob, welcome.

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Rob Abbott: Our next guest is, is, Mr. Doug Marcelo. Doug’s an attorney and a shareholder at Saxton and Stump.

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Steve Kessler: law firm.

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Steve Kessler: He’s a member of their Trucking and Commercial Transportation group.

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Steve Kessler: They defend trucking companies in both central Pennsylvania and throughout the country.

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Steve Kessler: A trial counsel in 35 different states.

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Steve Kessler: Doug handles all aspects of the trucking industry’s legal needs, from immediately responding to accidents.

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Steve Kessler: To working with businesses to mitigate risk and litigating cases through a jury trial.

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Steve Kessler: Doug also has earned a commercial driver’s license, which provides him with insight into the challenges of operating a tractor trailer and the mechanical components of that equipment.

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Steve Kessler: Doug’s the founder of the former Carlisle, Pennsylvania-based law firm Marcelo & Covisto.

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Steve Kessler: A boutique firm that handled only transportation law. After the firm’s formation in 2005, it joined Saxton and Stump in August of 2022.

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Steve Kessler: The firm worked with transportation companies in trucking defense, transportation contracts, employment law, cargo claims, and CDL issues. He is also a member of the firm’s commercial litigation group.

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Steve Kessler: So, having said all that, Rob, I think I’m going to hand it over to you first. Welcome, and we’re excited to hear what you got to say.

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Rob Abbott: Well, thank you for the very kind introduction, Steve. Doug and I really welcome the opportunity to talk fleets about these questions and issues, because they are so prevalent. We get asked them a lot. I’ll skip past our self-introductions, because you did such a fine job there, but

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Rob Abbott: I want to tell you, I’m grateful that Doug is here to join us. Doug is one of my favorite attorneys in the trucking industry, but as Doug knows, that bar is very, very low. So, you know, it’s the best we can do here. You mentioned sort of the backdrop in telematics here, and that’s really important. You know, the telematics really are really powerful tools. When you think about how it was

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Rob Abbott: 20, 30 years ago, we started out with critical event recorders, which only gave us data off the ECM. It told us, data like…

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Rob Abbott: hard braking, stopping, you know, weaving, swerving, that sort of thing, right? That came off the vehicle. But now we’re getting so much more. We’re getting following distance, and lane departures, and speed, and so many other things.

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Rob Abbott: But the real value of it is not just how much we get, it’s the ability of those systems then to take all that data, all these elements of risk, right, every little swerve, every little overspeed, every little following distance is too close, and say, okay.

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Rob Abbott: Where are they occurring? Where are the patterns? Which people are they occurring with? Which locations? Which vehicles? Which operations? So that we can act on them, right? So that we can say, look, the 80% is not problematic, they are anomalies, they’re one-offs.

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Rob Abbott: They’re minor events, but we see patterns with people, or with operations, or in locations, and that gives us really a tool that’s very, very powerful and effective. So the data is much better now, and really very powerful, so it’s not a tool that we can ignore.

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Rob Abbott: The second is that the systems now provide driver-centric behavior change. So it used to be

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Rob Abbott: that what happened is that, and you may remember this from the early days, where, you know, a fleet manager would be sitting inside in front of a Qualcomm system, and it would produce a spreadsheet of critical event reports that would say, here’s all your hard braking, line by line, right? It just looked like a spreadsheet.

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Rob Abbott: Well, now the system actually, in real time, detects risky behaviors, and depending on the configuration or the setting, will actually alert the driver in the moment with a little bing, or a noise, or a vocal statement, an oral statement that says, hey, increase your following distance, or hey, you’re weaving across the lines.

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Rob Abbott: That’s important because it’s so timely, right? Is that we all know that, you know, to tap on the shoulder in the moment is so much more effective than a manager coaching a driver to something

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Rob Abbott: Ultimately, 2 or 3 days later, long after the context is lost, right?

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Rob Abbott: The other is that it gives us data to really focus on countermeasures and individual follow-ups. So the patterns tell us, hey, we have lots of X, Y, or Z going on. How do we improve our fleet generally?

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Rob Abbott: But also, how do we work with these specific individuals? These are folks who have falling distance issues. These are folks who…

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Rob Abbott: who are distracted, or maybe have alertness issues. So it really helps us dial that in by comparing data from different systems. There’s now aggregators that take the data from the cameras, and the ECM and the MVR, and the hours of service data, and bring it all into one place to tell us that.

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Rob Abbott: But…

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Rob Abbott: On a high level, the best benefit is there’s crash reduction benefits by understanding the behaviors, understanding how we reduce risk and prevent crashes. And while today we’ll talk about the risk of litigation and the risk that this data can be used against you in litigation.

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Rob Abbott: The reality is that using it is very powerful to prevent crashes that result in litigation to begin with, right? So we’re reducing that exposure all the way, so it can’t be ignored, and it’s folly to think that doing so

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Rob Abbott: We’ll get you in a better place.

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Rob Abbott: Nonetheless, some fleets fear the data, and it’s totally understandable if they don’t have some resources devoted to it. They’re basically creating a record of actionable data, and I think, Mark, you said that earlier, it’s actionable data upon which they didn’t act. It says, hey, you knew about these things.

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Rob Abbott: Why didn’t you do something about it? You knew this driver was constantly having hard braking issues, and yet we later have a crash.

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Rob Abbott: It might also highlight patterns of risk, not just about individuals. So the first bullet point might be, hey, this driver had lots of following distance issues right before that rear-end crash.

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Rob Abbott: But it also highlights patterns of risk that foreshadow crashes, right? So, for instance, if you have a track record of all the speeding events in your fleet.

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Rob Abbott: It might foreshadow a speeding crash, and someone then could very easily mine that gold, a plaintiff’s attorney that says, look, this is not an accident.

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Rob Abbott: this is a crash. And the difference is that, you know, accidents aren’t preventable, and accidents aren’t, predictable. This was a crash. This was predictable and preventable, right?

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Rob Abbott: And moreover, they’re concerned that the data could be used against them to demonstrate culpability, that they’re creating a record to hand the plaintiff’s attorney. And it’s effectively what you said, Mark, earlier, which is, hey, I don’t want to hand them a sword, right?

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Rob Abbott: But I know this is a very, very powerful tool. So the question is, is it better to have this telematic data or not?

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Rob Abbott: I will tell you from having worked with video telematics, and having met with a number of fleets at a time when not everybody had video telematics.

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Rob Abbott: We heard a variety of opinions on that. We all know that cameras are really powerful because you have the exoneration and subrogation benefit of the video. It shows you, hey, that four-wheeler was at fault, I was doing everything I should have done right, I’m not at fault in this claim. That can be very, very powerful.

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Rob Abbott: But I’ve had plaintiff’s attorneys say, yes, but there will be times when that video shows I was at fault, and in their view, perhaps the consequence of that video

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Rob Abbott: will out… outset, will overdo, will overcome all the benefit you got from the exoneration video. I don’t personally think that’s true, but that is the concern. The other is I’ve had fleet professionals say, hey, look.

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Rob Abbott: I just had a crash today, and I’m…

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Rob Abbott: fortunate that there wasn’t a greater body of evidence in this crash, because we are at fault, right?

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Rob Abbott: Setting aside, what they didn’t see was all of the crashes they prevented by using the data, and all of the times it helped them, especially if they needed to settle early, right? Because sometimes the facts help you settle early, it’s always better to settle early.

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Rob Abbott: So my question to you, Doug, is, you know, you’ve defended lots of fleets in cases like this.

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Rob Abbott: Is it better to have the data to help your fleet, to prevent crashes, and ultimately, improve your fleet?

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Rob Abbott: Or, are you creating this body of risk, and are you better not having it at all? Not having the sword because somebody might use it against you? What says you, Doug Marceau?

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Doug Marcello: Well, thank you very much for having me, greatly appreciate it. And here’s the deal. It used to be that you were operating mechanical devices that hauled freight.

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Doug Marcello: No more. You are operating technological devices that are spewing data as we go along. The problem for most companies is you’re drinking from a fire hose. And whether you are aware of it or not, the data is there.

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Doug Marcello: You’ve got to do something with it, you’ve got to get ahead of it.

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Doug Marcello: Here’s the deal. Either you’re gonna write your narrative that the data tells you, or you’re gonna let the other folks get ahead of you, write that narrative, and guess what?

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Doug Marcello: It’s not gonna be good.

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Doug Marcello: I think what you have to look at is to use the data. Number one, the best defense we have is no accident. Use the data as, you know, was indicated by Rob to identify what are the potential risks here, and then take action about it proactively. Get ahead of it.

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Doug Marcello: You know, you need to have a plan, as we’re talking about. You know, the first thing on the plan, you know, what you need to do is to identify what data you have.

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Doug Marcello: And that sounds obvious, but I gotta tell you, you know, and I’ve had a, handling a significant accident today. It’s a sophisticated company, they’re ahead of it, but many times, when I reach out to the companies.

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Doug Marcello: they don’t know what data they have. They don’t know what data’s coming off their trucks, the OEM on there. Identify what you have. Number two, analyze it. Review the KPIs. What are the key indicators that relate to the accidents you’re having? If you’re out in the Midwest,

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Doug Marcello: on an I-80, it’s probably overspeeds. If you’re up in the Northeast, on the GW, it’s probably hard brakes. You know, the next thing you need to do on that is to, on the list, is to monitor that data. And I think,

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Doug Marcello: Rob, we have a bullet point number 2 there?

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Rob Abbott: There we go.

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Doug Marcello: Be sure you have a sound policy for how to address that risky behavior as well. You know, monitor what the points are that could lead to the accident, and then have a disciplinary policy that goes before that. The next thing we have, Rob?

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Doug Marcello: Well, stick with that policy. When you make an exception, you are opening a chasm for the plaintiff attorney to drive through. You know, I mean, he’s a great guy, you know, he didn’t mean to do it. You know, well, we need drivers. That’s the type of thing that’s going to be a detonator when the lawsuit comes and you try to get through there.

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Doug Marcello: You know, monitor what you have seen as the KPIs with it, and then the toughest thing in today’s world is to discipline, and be consistent with repeat

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Doug Marcello: Offenders and violators that we have.

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Doug Marcello: Again, I’m an attorney, I’m just telling you what’s gonna get you, your company in trouble.

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Doug Marcello: I appreciate where you are in terms of the driver situation. We have heard for years about there being a driver shortage, and there’s debate on that, and I see that in the current literature that’s out there.

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Doug Marcello: But if you look at the drug and alcohol clearinghouse, since it was founded several years ago, there are 200,000 drivers, a fifth of a million drivers, who are out there who tested positive and haven’t done an SAP program to return.

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Doug Marcello: With the ELP, English language proficiency, the estimate in 2022 of the FMCSA, that encompasses 150,000 drivers. With the visa restrictions that are put on there, that may well be an overlap between the English language proficiency, but we’re talking 200,000 to 300,000 drivers.

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Doug Marcello: You know, if there’s not a driver shortage going into it, we’re looking at one coming out.

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Doug Marcello: The bottom line, though, is think how many miles your good drivers are going to have to operate in order to pay for that one bad driver, if your company’s still in business.

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Doug Marcello: Because these nuclear verdicts have become detonators of what we have out there.

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Doug Marcello: Key things, identify what data you have.

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Doug Marcello: Analyze it, what relates to your accidents, monitor Those… Key indicators.

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Doug Marcello: And discipline those who violate the policy consistently.

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Doug Marcello: Because even highly productive long-term employees… I had a time, one time, where there was a guy who just,

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Doug Marcello: Back in the day, some of you older veterans will remember paper logs. Younger people, you can Google it to find out what they were.

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Doug Marcello: But, you know, I said to the company, hey, you know, it’s your business, but this guy’s gonna get you in trouble.

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Doug Marcello: And they said, yeah, but if he runs legal, he will lose productivity.

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Doug Marcello: Which was a euphemism for, you know, we’re making money off of violating the law on it.

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Doug Marcello: You can’t… you can’t do that anymore. The other thing is this.

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Doug Marcello: I’m saying before, a little bit ago, that the data’s there.

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Doug Marcello: The billboard attorneys are doing programs, seminars, I monitor them, I see what’s on the websites. And the programs they have out there, there’s one particularly. Trucking, a treasure trove of data.

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Doug Marcello: They then do individual sessions through the course of a morning to say, what data you have, how to get it, from the cell phones, to the ECMs, to the telematics, to the Bendix systems.

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Doug Marcello: All kind of data out there.

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Doug Marcello: They’re gonna go for it, they’re gonna get it.

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Doug Marcello: We need to get ahead of it. I just did a talk yesterday in Pittsburgh, and I… you know, we hear a lot about tort reform, and we can strive to do that.

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Doug Marcello: But I think we need to flip the switch.

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Doug Marcello: When we get into court, what happens is, you know, we have this situation where the plaintiff attorneys

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Doug Marcello: Hire an expert, someone who goes around the country testifying at a number of their cases, to say what is the standard of care?

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Doug Marcello: And the standard of care, uncannily, is always just above what the trucking company had done in that accident.

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Doug Marcello: they give a subjective opinion. What we do to defend it for too long is we have been hiring our own opinion, our own experts, and they give their opinions as to what the standard of care is. So what do we got?

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Doug Marcello: 12 people in the jury box who don’t know an ECM from a fifth wheel are trying to decide which of the two experts really are the ones that are saying what the standard of care is.

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Doug Marcello: We’re gonna change that.

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Doug Marcello: The advent of AI is going to give us the ability to analyze the data

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Doug Marcello: And to come up with an objective standard for the standard of care, as opposed to the subjective standard that they put on. It’s data-driven versus anecdotal. It is a thousand data points, or millions of data points, versus the few data points that a plaintiff’s expert has come up.

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Doug Marcello: Too many times I hear folks go, well, we don’t want this data, or we don’t want to look at the data. It’s what we call the discovery fallacy. If we see it or do something with it, then we’ll have to turn it over in the lawsuit.

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Doug Marcello: like I said before, they know what’s there, they’re getting it, and that’s what they’re gonna get through on it. That’s what you have to look out for and try to be careful on.

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Doug Marcello: You know, have a plan, have a rationale. The worst thing you can do is not have a rationale.

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Doug Marcello: And we’ve done focus groups.

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Doug Marcello: hypothetical case, rear-end accident, somebody’s killed, they have a disciplinary policy for overspeeds, hard brakes. The driver who was involved in that accident had several hard breaks, overspeeds, over the policy, of the company within the two weeks before the accident, but guess what?

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Doug Marcello: 35 truck fleet, one safety director, he couldn’t stay on top of it.

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Doug Marcello: was running behind.

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Doug Marcello: The jury was totally unforgiving.

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Doug Marcello: Their theory is, if you’re out on the road making money, you better darn sure be that you’re on top of this stuff.

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Doug Marcello: I think what we have with the potential with AI that’s coming is the ability to not take your job.

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Doug Marcello: But do the parts of your job, or do those elements that you don’t have time for.

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Doug Marcello: or that your company can’t afford to do. It’s going to amplify and maximize what your abilities are on that.

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Rob Abbott: Well, Doug, you know, if I could pause a minute, I think you touched on something there. So, so many fleets that I talked to said, we get it, man. If we had this data, we gotta look at the KPIs, we gotta manage to it, we gotta monitor it, we gotta discipline, we gotta follow through.

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Rob Abbott: we just don’t have the people to do it. So I’m encouraged to hear you say, hey, you know, we’re gonna have tools that make that easier, and I think that’s relieving for some who have fought for resources, especially in the current freight environment, right? But I also think what resonates with me about your message is this, is that even if they don’t buy new telematics tools.

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Rob Abbott: there’s a ton of data already there, and I’ll give you an example. I rented a car in Europe this summer, and it had autonomous, or pardon me, not autonomous, it had adaptive speed control on it, which means that it binged every time I was going 1 kilometer per hour over the limit. And let’s be quite honest here, I’m a scoff lawn and hated that darn thing, so I turned it off.

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Rob Abbott: But, there’s an ECM record that I turned it off.

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Rob Abbott: And that ECM record would be used against me in court, right? So, to your good point, hey, the first step is, it’s already there, let’s figure out what we got. And then to make it manageable, until we have the AI tools, you really gotta look at the KPIs. So the providers, I think, are really good at narrowing in the KPIs. You can say, look, man.

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Rob Abbott: I need my top worst offenders in X, Y, and Z.

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Rob Abbott: Right? And here’s what I need on a dashboard, help me make it manageable. You and I will talk in a minute about

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Rob Abbott: retention of that data, right? So you get the most value, but also that you don’t, you know, hold the sword for too long. But I think, you know, leaning on the vendor to give you really sound, tight KPIs is the way to go, right?

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Doug Marcello: Absolutely, and like you said, to work with your vendor in terms of, number one, identify the KPIs, and number two, have a dashboard to monitor it.

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Rob Abbott: And in a pre-AI world, or until AI comes full-blown into this.

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Doug Marcello: It gives you a curation of the data you have so that you can identify what the issues are, what the potential problems are, and address those ahead of time, proactively. Because even if the plaintiff then comes in and sues you.

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Doug Marcello: What are they doing? They are saying, not that you don’t have a plan, but we don’t agree with it.

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Doug Marcello: And the key thing with punitive damages is they are to punish and deter. The big cases that are out there, the nuclear verdicts don’t arise from the accident. They arise from the argument by the plaintiff attorney that you have a systemic failure in your company.

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Doug Marcello: By getting ahead, curating, have a dashboard.

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Doug Marcello: You can show and have a plan for monitoring and enforcing. You can show that by actually doing that, there’s no systemic failure. We may disagree in terms of the means, the KPIs, etc, but we’re honestly doing what we can on this. We don’t need to be sent a message by a jury verdict.

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Rob Abbott: Well…

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Rob Abbott: We’ll move on here in a second. My other takeaway there is don’t rent a modern car when in Europe. Go for the 72 Fiat. It doesn’t do any of this stuff.

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Doug Marcello: Yeah, thank you, Rob Abbott and the discovery fallacy. Okay.

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Rob Abbott: So, tell us about the vulnerability. So, flow fleets have to know, hey, you know, I’m not wearing armor head to toe, right?

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Rob Abbott: What do they need to know? What do they need to think about?

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Doug Marcello: Well, again, you know, look at the risky behaviors that you have, what’s going to come up with the accident, what your telematics are telling you on that. Be sure that you know and have a plan for what those are and identify them with your drivers. Keep on top of that. Next, you know, look at some of the

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Doug Marcello: behaviors, and are you not doing something about it? Because that’s where it’ll… that’s where it’ll blow up.

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Doug Marcello: Again, we know the realities of the real world, but there was a large verdict in Philadelphia within the last couple years

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Doug Marcello: Where a driver sideswiped a truck parked on the berm of an interstate. The driver was going, I think it was about 7 miles an hour or so over the speed limit.

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Doug Marcello: And both experts admitted speed had nothing to do with the accident.

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Rob Abbott: Yep.

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Doug Marcello: They assessed $25 million in punitive damages against the driver, and the company, because they had monitored and disciplined the speed gauge program that they had on the truck.

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Doug Marcello: Those are the things you need to get ahead of it. Good news to the story, we can’t all count on this, that $25 million was docked down to $1 million by the court, saying 25 is excessive. But here’s the deal, it wasn’t even a trucking company, and it only had 4 trucks.

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Doug Marcello: So you can imagine what a million-dollar hit to that company was gonna be. And in many states, most states, punitive damages are not insurable.

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Doug Marcello: Because the idea is you can’t insure against behavior

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Doug Marcello: That gives damages of this nature.

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Doug Marcello: So you’ve got to address this. Look to see if there’s a pattern there. You know, are you seeing what’s happening in the telematics and in your data that shows that there’s a consistent pattern of what’s going on there? And then, ultimately, the ultimate question is, you know, as Mark pointed out, should we keep it or should we toss it?

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Doug Marcello: And you know, Mark, true to being an attorney, that the first thing they teach you in law school, it depends.

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Rob Abbott: Okay. Great. You could be in the weather… you could be a meteorologist, Doug.

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Doug Marcello: If I’m gonna be a meteorologist, it’s gonna be San Diego, Rob. It’s always the same forecast.

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Rob Abbott: Yes.

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Doug Marcello: Yeah, here’s the deal. Have a retention policy and a rationale for it.

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Doug Marcello: is going through. You know, for a lot of stuff, the FMCSA makes it easy for us. Logs, 6 months, other records, boom, down the line. But what you want to do, particularly with the data of behavior, is to… you don’t have to keep all of the data. If

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Doug Marcello: Big if. You keep a record of

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Doug Marcello: That occurred, this is what we did to address it, and we followed up to make sure that that… that behavior was coached out of the driver.

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Doug Marcello: And I think that’s where we need to do it.

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Doug Marcello: There’s a jury consultant that I work with. He has found, by focus groups that he does, that the training, you know, we have the initial training, then we have the remedial training for this.

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Doug Marcello: What he found is the ongoing training, it is better to do it in small doses on a very frequent basis, monthly at least.

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Doug Marcello: than just to do it quarterly or semi-annually at the safety meetings, which I speak at a lot of times to the driver meetings.

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Doug Marcello: Because the jury then has the impression, and I think it’s demonstrated, your company has an ongoing concern for safety.

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Doug Marcello: Rather than just checking a box on it.

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Doug Marcello: And I think that’s what we need to do.

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Rob Abbott: Doug, let me… let me make sure I got this right. I mean, it seems to me that…

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Rob Abbott: you know, so many safety people feel overwhelmed by the data, right? So…

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Rob Abbott: So, after they get their KPIs, you know, Fred’s speeding this much, and John’s in the worst 25%, and that Marcelo guy, you know, he’s always following too closely, right?

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Rob Abbott: But, really, you ought to pause for a minute and say, okay, do I have behaviors that are increasing, not decreasing, right? They’re becoming more and more frequent. Like, this is a sharp sword somebody could hit me over the head with.

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Rob Abbott: The other way, are there things you’re not doing anything with? And so you mentioned the speed data stuff, that reams of evidence of guys who were going 5 miles per over the limit, they didn’t address them because they didn’t think they were egregious or actionable.

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Rob Abbott: But it painted a bad picture, right?

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Rob Abbott: So you don’t create that, you act on everything you’ve got that’s provided to you, and you can lean on your provider to say, look, here’s the things we want you to give us, and then look at the patterns. But in terms of the data, it strikes me that if you have a really good narrative.

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Rob Abbott: that keeping it a little longer is okay, because you’re showing, hey, we reduced this behavior over time. If you’re struggling with it, hey, there’s nothing to say you have to keep this stuff for more than 30 days, right? Or any period of time, right? You can use it as long as you want to use it, as long as you’re consistent about

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Rob Abbott: Getting rid of it, yeah?

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Doug Marcello: yeah, have a consistent policy, be consistent in doing it, and you know, go along those lines. But I think you hit on a good point, Rob.

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Doug Marcello: And that is, to the extent you can use the data to show a declining line, like we see in this slide, you know, it gives you the opportunity to then use the data in your favor.

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Doug Marcello: You know, the ultimate to me is to have the data, the narrative, and have the production with that.

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Doug Marcello: So that if and when the accident happens, and you are called in for a deposition,

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Doug Marcello: You can say in that deposition.

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Rob Abbott: I’m glad you asked me that question.

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Doug Marcello: Let me tell you about what our company’s really about.

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Doug Marcello: And we can go through that. And we can show where we were and where we are, and how that trend’s going.

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Rob Abbott: So what we want to do that, looks at a system.

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Doug Marcello: Where, you know, you’re going through and being able to show that you have been productive, that you’ve paid attention, and again, the ultimate on this, because, you know, the theories from the reptile theory to the other, to inflame a jury, is you need to send this trucking company a message.

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Doug Marcello: is to come up with a narrative that says, we get it. No message needed here.

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Doug Marcello: We’re on top of it.

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Rob Abbott: Yeah, so often I hear that plaintiff’s attorneys justify these jackpot claims by saying, look.

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Rob Abbott: You need to send a message to the industry to compel them, to teach them that they should be doing the right thing. You’re helping the industry and society if you impose this massive verdict, right? So really, what you’re saying is create the narrative that if somebody says.

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Rob Abbott: hey, tell me about this. You say, well, I’m glad you asked. These drivers improved their behavior, we were on top of it, and the ones who didn’t get it, they don’t work here anymore. We made every attempt to improve and coach, but they don’t work here anymore. But we’ve been very consistent in managing these KPIs because we’re on top of it, right?

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Doug Marcello: Absolutely. It’s got to be an overall narrative like that, Rob, because we don’t hear about it, and, you know, we complain and we rue our fate with regard to these nuclear verdicts and the industry we’re in, but, you know, after the presentation I gave yesterday, there was a plaintiff attorney there who spoke to the insurance group.

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Doug Marcello: And his basic message is.

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Doug Marcello: you know, I don’t come up with anything, you give it to me.

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Doug Marcello: And went through in terms of, you know, common practices that companies do that makes his case for them, or the inconsistencies he sees in the behaviors in this. And that’s what we gotta take out of it. And that’s where the data can be the key to show us

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Doug Marcello: Objectively, what the story is and present that to the jury. Visually, you know, as well as with the data itself.

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Rob Abbott: Do you think, Doug, that fleets are culpable if they don’t deploy certain technologies? I mean, I had some say.

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Rob Abbott: hey, I’m not going to deploy this stuff, because it’s going to create a record of evidence that I can’t manage to, I’m going to be culpable, because it’s going to have actionable data, so I’m not even going to put it on.

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Rob Abbott: Is there an argument to be said, hey, a plaint’s attorney’s gonna stuff that up your nose by saying, you could have deployed all this safety technology, you didn’t, because you don’t care? Is that a risk?

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Doug Marcello: I think it’s a possible risk, a potential risk, you know. It’s got to be weighed for a number of factors, and I think it can be addressed. You know, look, as an industry, Rob, what’s the latest statistic I saw from ATA? $18 billion are invested by trucking companies in safety throughout… across the borderline.

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Doug Marcello: And for the most part, you know, I haven’t seen as much an argument, the failure to invest in certain technology, as much as it is

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Doug Marcello: just taking the data that’s there, that that company has, and using it against them on that. And I think that’s where a lot of it is. There are some circumstances.

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Doug Marcello: you know, where folks may want to deactivate OEM data.

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Doug Marcello: Well, now you’re getting into a whole nother situation.

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Rob Abbott: You know.

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Doug Marcello: That’s.

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Rob Abbott: Actively done that, not passively purchased, not.

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Doug Marcello: go.

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Rob Abbott: Great.

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Doug Marcello: you know, actively reduce that. And, you know, and then you got the folks, you know, what’s the most valuable truck out there? One before 2000, because there’s no ECM on it. Right. You know? And we have a whole world of those out there. Sure. So, you know, that’s what we’re looking at on that.

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Doug Marcello: Now, you know, I think the converse, where you run into that, Rob, is the… is you don’t have the story to tell in response to the plaintiff in terms of what your investment in safety is.

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Doug Marcello: And, you know, back in, I think it was 2016, in the ironically named FAST Act.

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Doug Marcello: Congress told the FMCSA, hey, you’re to give recognition to what trucking companies do beyond compliance. You know, not just meet the regs, but let’s reward the good folks. The FMCSA hasn’t figured out to come up with anything. And did I say that was in the FAST Act in 2016?

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Rob Abbott: Yes, yes, yes. So that’s what we’re waiting for, and I think…

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Doug Marcello: That’s what needs to be done, is to come up with some… some recognition for those who actually do it.

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Rob Abbott: Well, you make a good point, except that the most valuable vehicle would be that 72 Fiat I mentioned earlier, but… so I imagine the attendees have some questions for us, more so you, Doug, as you’re an attorney, though I was a notary once, so that’s pretty close, right?

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Rob Abbott: the next best thing. Yes.

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Rob Abbott: Okay.

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Rob Abbott: So, Steve, I imagine you have a couple of things in the chat, maybe not.

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Steve Kessler: Yeah, there’s a… there’s a question here from David.

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Steve Kessler: He says, we have a system that records critical events, hard brakes and turns. We do follow up with each driver for every event they generate.

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Steve Kessler: How long should we keep this information? Like messages sent to the driver and copies of the video?

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Steve Kessler: How many fully reviewed events per driver?

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Steve Kessler: Per month, per year is acceptable.

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Doug Marcello: Yeah, I don’t… you know, like many things in life, there’s not a hard and fast answer, but I think what you need to do is to find a way you can show

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Doug Marcello: We had a critical event, we addressed it, this is the follow-up. This is where that behavior was no longer either not tolerated.

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Rob Abbott: Or…

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Doug Marcello: Well, hopefully, was coached out of the Triber on that.

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Rob Abbott: So you don’t… you don’t have to keep it at all, but if you have a good story to tell, it doesn’t hurt to keep it for 90 days, maybe longer.

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Doug Marcello: At least, if not longer. Even if you have, like, a, you know, it would be onerous to keep an Excel spreadsheet of it, but if you had a record in terms of, you know, event.

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Doug Marcello: Action, correction, boom, down through. You know, that could be there for a protracted period of time.

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Steve Kessler: But you don’t want to keep the records for Driver A, because he’s good, and dump the records for Driver B, right? You’ve got to be consistent in how you do that.

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Doug Marcello: He’s consistent. You know, it’s like I tell, post-accident, and this usually sends, you know, seismic waves out there. Don’t take a statement from the driver, on that.

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Doug Marcello: And the same thing is, you know, in certain circumstances, hold off on preventability determinations, but be consistent in the ones you do it. Might be DOT or whatever, hold off until after the, the lawsuit’s done.

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Steve Kessler: Good.

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Steve Kessler: We do have one question here from Daniel, and I don’t recall that y’all talked about this, but he’s asking, how is the accident rate per driver calculated?

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Steve Kessler: I would think it would… depends upon whether you’re talking about DOT recordable accidents, or all those other things that happen.

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Steve Kessler: And…

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Rob Abbott: The ratio of that per number of drivers, right?

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Steve Kessler: Yeah.

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Steve Kessler: So, I think that’s a fairly easy, calculation. Couple things that I thought about is,

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Steve Kessler: One of the things I did love that you said, the best defense is to not have any accidents at all.

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Steve Kessler: And that would be the best, and that’s kind of what our company’s all about. We’re all about training, and Doug, I was very happy to hear you say that

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Steve Kessler: Training has to be frequent and consistent, and that’s one of the things that we try to preach here all the time, is at a bare minimum, you need to be training on topics on a monthly basis.

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Steve Kessler: And you need to continue to do that with some frequency, and we believe that…

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Steve Kessler: That makes you much more defendable, because it shows a culture of safety, a focus on safety.

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Steve Kessler: You know, drivers are gonna make mistakes once in a while, and bad things can happen, but companies shouldn’t be punished just because one driver made a mistake.

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Steve Kessler: I don’t know if that makes sense or not, but… So,

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Steve Kessler: There’s one other question here, just popped in, and we see, Chris is saying, how do we calculate a good driver versus bad driver?

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Steve Kessler: Our company uses telematics and provide bonuses based on 80-plus score. We coach and discipline drivers with below 80 score.

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Steve Kessler: Drivers 70 to 80 are considered average in the telematics.

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Steve Kessler: But could retaining these drivers open our company up for litigation?

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Rob Abbott: Well, there’s no easy answer for that one. I think. You know, obviously insurers will provide minimum standards to many of their fleets, obviously.

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Rob Abbott: There are industry averages which apply to fleets. You could say, look, if you’re up above or below these averages, your fleet is not performing.

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Rob Abbott: But for me, it’s really looking at the data to see, are there people who just aren’t improving? Now, what you’re looking for is a bright white line that says, hey, no more the next speeding events or following distance.

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Rob Abbott: I don’t know that that exists, so Doug, what puts you at peril in those circumstances?

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Doug Marcello: I think it is continuation of the conduct that, is non-conforming.

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Doug Marcello: So, you know, all of us on occasion will…

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Doug Marcello: transgress, and the telematics will report it.

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Doug Marcello: But if you see someone consistently doing something, and particularly after you talk to them, counsel them, they continue to do it,

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Doug Marcello: that’s, I think, where it’s problematic, and that’s where it is on that. You know, again, you know, Rob, like you said earlier, I think we’re looking for the upward rotation in terms of the improvement of the driver and that score. It’s trending, and that’s what we have to look for. But for those who just…

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Doug Marcello: Can’t, or even worse, won’t.

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Doug Marcello: follow up with that, then I think that’s where we have the problem on it.

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Rob Abbott: For sure.

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Steve Kessler: Dustin’s asking, any advice on explaining the benefits of inward-facing cameras to our older drivers who feel their privacy is being violated?

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Rob Abbott: Yeah, for sure, and it’s not just older drivers. I mean, a lot of drivers are concerned about that, and I certainly get it. Look, I’ll tell you a quick anecdote, which is that, when I ran a sales team for one of the providers, I had a camera in my own vehicle, it was accessible by the whole company, and my sales team decided to use me as their demo footage.

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Rob Abbott: In front of prospects, so here you got some, 50-something fella singing along to ACDC with one hand on the wheel, right? And I was like, wait a minute, boys, that’s not what we’re supposed to be doing with that, right?

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Rob Abbott: I do think there’s, there’s, you know, a concern there. Look, we all have moments where we feel that, you know, that are private, right? But, the fact of the matter is, when you talk to other drivers who have them, and for periods of time, they’ll all go, you know what?

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Rob Abbott: It’s no big deal, and it’s no big deal because of two things. One, if they’ve had an event where they need exoneration, they don’t just need to show that the other vehicle was doing the right thing. They need evidence showing they were doing the right thing, that they were alert, they were looking at their mirrors.

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Rob Abbott: They didn’t have their hands off the wheel, because there’s always, always going to be a supposition that there was some level of alertness in question, or distraction in question, and that is going to be presumed and insinuated, so that is certainly helpful. The other is that, really, when you talk to fleet managers.

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Rob Abbott: Unlike my sales team, right, they were… they’re not looking at all that footage. What they’re wanting is the rare exception that the system pulls up. So my advice, generally, is

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Rob Abbott: Show your drivers what you see in your dashboard. See the exempts and examples, and what happens is these video providers aren’t sending every video clip to those fleet managers. What they’re doing is sampling and selecting the most egregious.

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Rob Abbott: and serving them up. And so showing them what they see and how rare and infrequent it is, and that those guys aren’t sitting there watching people drive all day.

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Rob Abbott: That helps.

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Doug Marcello: I think that’s exactly it, Rob. A couple things, you know, number one, exoneration. Show that you weren’t distracted when this happened. Number two, I think it’s a coaching technique.

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Doug Marcello: You know, the greatest athletes in the world all use video coaching nowadays. One of the telematic providers, told the story that they, when they joined the telematic provider, they had a camera put in their car, got a call within a month and said, you’ve got 34 stop sign events.

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Doug Marcello: And they go, well, stop? I stop at all stop signs. Well, you kind of stop. And they said they had no idea, you know, to pick it up with that, yeah. And the other thing is, from a company perspective.

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Doug Marcello: You can’t afford

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Doug Marcello: a driver who is on the cell phone, texting… that’s a detonator right there. And guess what? That data is easy to get.

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Doug Marcello: you know, either from the phone or just from the provider. And ultimately, I was at a driver’s meeting where a company said, hey, could you come out and tell our drivers why we should have rear-facing cameras, you know, on a Saturday morning, when they’d rather do other things?

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Doug Marcello: Sounds like a great assignment, guys, love to be there. But one of the things I pointed out to them is, you know, you’re probably being observed in your truck no more, and probably even less, than you are in your own car and automobiles.

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Doug Marcello: There are certain model cars out there that have a built-in camera up in the roof level on it. Now.

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Doug Marcello: The manufacturer won’t tell anybody what’s being recorded there, but you’ve got your airbag modules, you’ve got your information module in your vehicle. There was an accident reconstructionist showed how they got a hit-and-run person, based upon tracking the phone connection to the entertainment unit in the vehicle.

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Doug Marcello: In today’s world, all that data’s out there.

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Rob Abbott: So, what’s in the truck is…

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Doug Marcello: Consistent with, maybe even less than what we have when we drive our own vehicles.

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Rob Abbott: Unless, of course, it’s that 72 that you rent, Rob, so…

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Mark Rhea: I had a quick question for Rob,

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Mark Rhea: I hear this a lot, and I think it’s a very valid question. The technology vendors, providers.

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Mark Rhea: should… should they be providing consultation on what… on the metrics and the KPIs? And I’ve… I listened to Doug’s

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Mark Rhea: First, find out all the data that’s coming at you, and all of a sudden, you’re over with, where did all this stuff come from? What do I do with it? Is it a reasonable expectation for your technology vendor to provide some recommendations?

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Rob Abbott: Yeah, no, that’s a good question. You know, I wrote an article about this recently after speaking to a lot of the different technology providers, and some of them are really very good about talking to best practices. They get to peek in a lot of other tents, right? Anonymous tense, where they go, okay, here’s…

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Rob Abbott: Here’s how other fleets are managing to this. Here’s how we can dial it back. Here’s the stuff that drivers respond to. Here’s the patterns that we’re gonna see happen.

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Rob Abbott: Reality is, with telematics data, once you get it, a whole bunch of it is going to be following distance initially, because nobody provides adequate following distance. Just a thing, right? And then the next thing is, okay, we’re going to get control of that, we’re going to get control of this.

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Rob Abbott: Those guys really do have a view into the world, and they can be very helpful, and they can… the good ones, with good systems, can configure that stuff.

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Rob Abbott: Right? So they can determine sampling rates, they can set thresholds, they can alert you to patterns and slopes, so yeah, I would lean on them really heavily, but also in the selection process, really vet out the ones that have more capabilities there. Some of them have systems that aren’t that mature.

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Rob Abbott: and don’t have those capabilities. Others, they really can configure that stuff, and they’re very helpful.

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Doug Marcello: In a day’s world.

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Mark Rhea: Ordering a system off of Amazon’s not going to give you much consultation.

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Rob Abbott: The one in the Uber? Maybe not.

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Doug Marcello: In today’s road, Mark, you know, we have providers who not only will have the data, you know, what would be a closed AI system of the particular trucking company, but an open system that would have anonymized data throughout

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Doug Marcello: there are other providers. So that would help with benchmarking, overall, as well as within your company.

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Rob Abbott: Doug, I wanted to ask you about one of the questions that came into the chat, because I got asked this a lot, is that I had some fleets that say, hey, we only require the driver-facing camera on

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Rob Abbott: for the first two years of driving are accident-free, and they earn their way to not have an inward-facing camera.

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Rob Abbott: Is that a dangerous model?

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Doug Marcello: You know, I understand it’s a great training model, particularly if you can show that there’s not the adverse behavior there.

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Doug Marcello: I think where you run into problems, though, is when you… Literally flip the switch.

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Doug Marcello: And, you know, accident happens two years and 1 day later, and gee, you know, we don’t know if they were distracted or not. You know, yesterday you would have known.

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Steve Kessler: Turned it on.

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Doug Marcello: Last week, you would have known. A year ago, you would have known. And you’ve taken that, and why did you do that? So I think, you know, potentially on that, but… but again, it’s just a matter of a company policy, and company protection that,

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Doug Marcello: why don’t you… why don’t you want the camera there? And I… My inclination, I…

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Doug Marcello: You know, at the risk of being insensitive, but what are you doing that you’re afraid is going to be seen, is the thought that I have.

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Rob Abbott: Well, I’m singing along to AZDC, Doug. I mean, that’s what you’re doing, it’s a little embarrassing, but…

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Rob Abbott: There was one other question that somebody asked, and Doug, I won’t even pretend to opine on independent contractor tests.

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Rob Abbott: But, you know, when we talk about direction and control in independent contractors, you know, what degree of this data and the technology puts a fleet at risk for claims that they overly exerted direction and control and were by de facto employers instead of, you know, working, you know, contractors?

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Doug Marcello: Robert, I was gonna tell you, my screen froze up when you started that question, but unfortunately it didn’t. You know, at the risk of being very lawyerly, and the frustration, not only of trucking companies, but to myself as well.

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Doug Marcello: There is no answer to that. All I can say is the more you exert, the more you require, the more you start to bring them into the employee realm and out of the independent contractor realm. You know, in terms of requiring and this.

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Doug Marcello: it’s very difficult in today’s world. The test varies. We’re in the process of a changeover test from administrations.

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Doug Marcello: you know, where we’re going with that, but I would just think in terms of, you know, number one.

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Doug Marcello: What elements of control do we have on the independent contractors?

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Doug Marcello: Number two, do we really need to do so on it? And if you don’t absolutely need to do so, I would stay away from it and just diminish your exposure there. There’s no black and white, it’s just shades of gray.

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Rob Abbott: Right, no single test is definitive, so this could flip the balance, it might not flip the balance, right?

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Rob Abbott: For sure.

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Steve Kessler: Awesome.

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Steve Kessler: All right, I don’t see any other questions popping in. Let me check down here. One thing I’d like to do is, one of the areas that you mentioned.

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Steve Kessler: earlier was, frequent and consistent training, and as I said a little bit earlier, that’s exactly, our focus and what we preach to our clients and we talk to our prospects about.

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Steve Kessler: To develop and show that culture of safety.

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Steve Kessler: So, if you’re not a current customer and you’d like to know more about our system, if you could answer the poll question there, we’ll be happy to reach out and talk to you about it.

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Steve Kessler: And also, those of you that are certified directors of safety under the NATME program, if you let us know, we will send you a certificate of attendance so you can claim your recertification.

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Steve Kessler: two-tenths of a point, I think, for an hour-long program, so… But,

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Steve Kessler: I just wanted to thank both of y’all, Rob and Doug. Really, really good information. I think…

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Steve Kessler: The thing that I took away most from it, obviously, is I was glad to hear that training is key here, because the more you can do that, the more likelihood you have to prevent an accident, which eliminates a lot of this stuff.

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Steve Kessler: But also, if you have policies…

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Steve Kessler: Make sure they’re in writing, make sure you train everybody on the policies, and whatever those are, to follow those policies. And, I think that’s just logical, good information to do those sorts of things, so…

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Steve Kessler: Mark, did you have any final comments, or Rob, you, Doug, any final comments? Because we’re about at the end here.

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Mark Rhea: I would just… I would just add, when you determine that you do have an actionable event, that you take action, and that you be able to document that. I’m sure, Doug, you’ve heard this over and over in court. Yeah, I told them not to do that again, and that… that doesn’t get you anywhere. You’ve got to be able to…

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Mark Rhea: document, date, time, and place. Yes, we had an event, we discussed it, we had… we had… we had… we didn’t, you know, forget about it, and it’s… I hear it all the time, I did something, but I can’t prove it.

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Doug Marcello: Yes, you know, Steve, let me second what you’re saying in there in terms of training. The plaintiff attack is a triad. The second leg of that triad is training. Hiring, training, supervision.

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Doug Marcello: You know, the easiest one to take away is the training, is to, you know, just do it, you know, early and often.

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Doug Marcello: And, you know, there’s an election joke out there that I’m not gonna make, but that’s what you want to do with the training the same way there, is to get after them back. So, no, invaluable what you guys do, and I think in terms of the protection of the company.

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Steve Kessler: We think so, and So, you know, there’s… there’s…

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Steve Kessler: kind of a multi-pronged approach here. You know, if you train enough, you can reduce the number of crashes at the beginning, but you also have to make sure everybody understands what your policies and procedures are, and so training has a lot to do with a lot of the things that we talked about today.

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Doug Marcello: But.

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Steve Kessler: Really good information, Rob, Doug, thank you so much. I don’t see any other questions coming in. Oh, wait a minute. Somebody wanted to know, what’s your opinion on sharing video or sending to drivers for self-coaching?

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Rob Abbott: I mean, my view is that it, much like the driver-centric change in the moment, it can be very effective. You know, people…

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Rob Abbott: sometimes don’t realize their behaviors until they’re pointed out to them. Yeah. And when they see them, they go, oh, look at that, I was weaving. Oh, look at that, I wasn’t providing. That could be very effective in people saying, you know what? Yeah, maybe I do need to look in the mirror on this one.

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Steve Kessler: Yeah, I agree.

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Rob Abbott: I’m like…

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Doug Marcello: there’s a couple theories of behavioral psychology, which, of course, having no prior or training in, I read a book once about. And one of them is that if you show somebody what their conduct is, it is more readily recalled when they face that situation again.

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Doug Marcello: If you show, say, at a driver’s meeting, not in a punitive manner or diminished, but show what other people’s behavior is, that same recall will come back to them so that they can avoid that situation, having seen what that person encountered. You sensitized it to them. So I think it is invaluable both ways.

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Steve Kessler: What’s your opinion on, providing information or videos of a driver that did all the right things? Show the positive, the near misses, the things that, you know, we hope the drivers are doing out there? I think that kind of a positive

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Steve Kessler: Message from time to time is very important, too.

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Doug Marcello: There’s a telematic provider out there that gives positive points to drivers.

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Steve Kessler: Yes.

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Doug Marcello: We’re maintaining following distance, not having hard breaks, etc. And, you know, I think that’s where a lot of safety programs, where a lot of safety folks get in.

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Doug Marcello: Have problems, that they look at their job as being a gotcha job.

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Steve Kessler: Yeah.

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Doug Marcello: And it’s not.

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Doug Marcello: You know, it is to develop the culture. I think the ultimate definition of integrity is doing what you’re supposed to do, and nobody’s looking.

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Steve Kessler: Yes.

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Doug Marcello: And I think that’s the ultimate success of safety out there, and what we need, because we’re the only industry in the world that has folks that operate heavy equipment outside of our vision with the motoring public.

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Doug Marcello: You know? And I think that’s the integrity we need out there to instill in our drivers.

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Steve Kessler: I agree, 100%.

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Steve Kessler: Very good.

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Steve Kessler: Well, gentlemen, thank you so much for your time and information today. Just a reminder of those of you still out there, we’ll be sending out an email that’ll have a link to this recording.

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Steve Kessler: So you can share that with some other folks, and if you have specific questions, I guess, for Doug or Rob, you can reach out to me. You all should have my email, and I will get in touch with Doug and Rob and forward on your questions, concerns.

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Steve Kessler: So, rob, thank you very much. Doug, thank you. Mark, as always, thanks for joining us.

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Steve Kessler: And, we’ll look forward… by the way, on the 21st of November, we’re having another webinar, and we’ll have, Rebecca Brewster from ATRI is gonna go through the top 10 industry concerns, which I’m sure a lot of you have already heard.

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Steve Kessler: But it’s always interesting to hear her talk about, a lot of the details around those, those industry concerns. So, that’s coming up 10 a.m. on November 21st.

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Steve Kessler: Very good, gentlemen, thank you all very much. Thanks, everybody, for coming, and everybody have a good, safe rest of the week.

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Rob Abbott: You’re doing.

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Steve Kessler: Not very much.

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Rob Abbott: Bye-bye.