Operations

How To Hedge Against Accident Claims

Posted on September 16, 2015 by - Also by this author

You can reduce the risk of accident injuries by making sure passengers understand the rules.
You can reduce the risk of accident injuries by making sure passengers understand the rules.

With pulsating high-amp music blaring, booze flowing and the invitation of a stripper-pole mounted in the center of the action, party-bus passengers can‘t resist the urge to get up and boogie. This creates an inherently dangerous risk. Insurance carriers shudder when party and bus are even used in the same sentence.

Is It A Party Bus?

To the general public, any bus with flashy lights, stripper poles and a loud sound system is a party bus. To a radio station taking listeners to a concert on a charter bus, they might refer to it as a “party bus.” Your insurance company would rather you refer to your bus as a “limo-bus” or even better yet, a “luxury motorcoach,” says Carol Bean, an insurance agent for Zurich NA, Northland, and other industry carriers. Using the word “party-bus” as a vehicle description raises high-risk red flags, Bean says.

The most common charters for “party-buses” are weddings, proms, bachelor/bachelorette parties and bar-hops. Such charters evoke thoughts of a party, thus making them a “party-bus” for the occasion in the minds of our clients, but they should not be referred to as party-buses in marketing materials due to liability concerns.

It’s All Fun & Games Until

In September 2011, a limo-bus operated by my company, The Limousine Scene in Bakersfield, Calif., was traveling through a remote section of Highway 46 on the way to wine country when the unthinkable happened. A big rig swerved directly into the path of the limo bus on a stretch of highway known as “Blood Alley.” (See December 2011 issue, pp. 34-36).

As the music blared and passengers danced their way to a day of wine tasting, everything came to a literal halt. Passengers were tossed to the ground and on top of one another in a sea of shattered glassware.

Injuries were so severe a helicopter was summoned to take the more seriously wounded to the nearest hospital, more than 60 miles away. Others were transported by ambulance. There were numerous claims and lawsuits filed and settled as a result of this accident.

Customer Service Dilemma

With coachbuilders building buses that resemble small night clubs, it presents a dilemma in meeting a client’s expectations. If they come to preview the bus and you show them all the bells and whistles, of course they will expect to use all the amenities including the entertainment pole and music system during the night of the charter. However, common safety dictates passengers remain seated while the vehicle is moving, whether a boat or a bus. Even if you instruct your chauffeurs to ask everyone to remain seated while the vehicle is in motion, your chauffeur will be up against anywhere from 14 to 50 drunk passengers who beg to differ and will undoubtedly scream about how much money they spent chartering the vehicle.

Setting Basic Rules

You can minimize your liability by taking safety seriously and making sure passengers understand the rules of the bus. This should include no standing forward of the standee line. The standee line is governed by federal law in all states. It is the yellow line separating driver and passengers. It may even be an imaginary line. The purpose of this line is two-fold: First, to avoid a passenger being tossed into the windshield in an emergency stop, and second, for driver safety. It is intended to prevent driver distraction and obstruction of the passenger side mirror.

Never let a passenger cross this line while in motion. The second major rule is to remain seated while the vehicle is in motion. No dancing and no walking around except to use the restroom or change seats if necessary. If the bus is equipped with seatbelts, suggest that passengers buckle up. Even if they don’t, you at least tried. By holding passengers accountable for their actions and giving consequences for breaking rules, you minimize if not eliminate your liability due to a mishap.

Transfer The Risk

The Greater California Livery Association (GCLA) provided an educational session recently for members that featured a presentation by attorney, Patrick O’Brien. O’Brien, a partner with Daniel Crowley & Associates in Santa Rosa, Calif., is also the founder of Panama Luxury Limousines in Panama City, Panama. While he no longer operates the business on a daily basis, he still serves as a consultant and board member. As an attorney, O’Brien represents transportation companies and encourages operators to transfer the risk of unsafe behavior to the person behaving in an unsafe manner, such as dancing in a moving bus.

Basically, it comes down to asking passengers to sign a document stating they have been told not to engage in certain activities and if they do, the transportation company assumes no liability for injuries. O‘Brien told the crowd, “Your insurance company will love you for taking this step.”

Treana Maddox, manager for The Limousine Scene, recently learned about a waiver during a GCLA presentation that she then downloaded the next day and modified with the company’s name before printing copies. You can download the same waiver here: http://gcla.org/images/Sample_Liability_Waiver.docx
Treana Maddox, manager for The Limousine Scene, recently learned about a waiver during a GCLA presentation that she then downloaded the next day and modified with the company’s name before printing copies. You can download the same waiver here: http://gcla.org/images/Sample_Liability_Waiver.docx

What Is An Express Liability Waiver?

Chances are if you have ever done anything risky such as rock climbing, skydiving or whitewater rafting, you probably have signed a waiver before. The waiver is a form that should clearly be labeled “LIABLITY WAIVER” and asks passengers to refrain from standing, dancing or moving around while the bus is moving. It also can contain a statement that passengers assume the risks associated with intoxication.

O’Brien recommends a statement that the person signing is informed that becoming intoxicated or violating rules can lead to serious injury and or death. Strong words, yes! The form also needs to clearly state that participating passengers release the operator and its employees from any and all liability for any injuries or death that may occur during the party bus activity. In most states, minors cannot legally sign a waiver. The outcome for operators involved in an accident could mean the difference of whether you are able to find affordable insurance coverage at renewal time or even a carrier that will insure you after a large claim.

You can find a sample waiver at: http://gcla.org/images/Sample_Liability_Waiver.docx

Introducing The Waiver

As with any new policy, your chauffeurs must be trained and the necessary materials provided. Treanna Maddox, a manager for The Limousine Scene, attended O’Brien’s presentation and the next day downloaded a sample waiver, modified it with the company’s name, and took it to a printer. Maddox asked the printer to reproduce the form in a tear-off pad format. Chauffeurs were then instructed to stand at the entrance door and ask each person to sign the document while boarding.

O’Brien recommends this procedure. Maddox reviews each bus order to determine whether it is appropriate to present the waiver based on the activity and group. Maddox says she may consider full compliance by all passengers in the future but for now is limiting it to the party crowd. “We provide a lot of corporate service where employees are mandated by their corporate employer to be seated and buckled in at all times.”

In those cases, there is no alcohol aboard so the waiver isn’t really needed, Maddox says. Since requiring the waiver, not one single complaint or refusal has occurred. “The form also contains a statement that minors agree not to consume alcohol,” Maddox says. “However, we continue to use another form to comply with the Brett Studebaker (California) law requiring the designation of an adult responsible for ensuring minors don’t consume alcohol. The fact is, very few passengers even read what they are signing as they just want to get on the bus.”

Will It Stand Up In Court?

Courts throughout the country routinely uphold these waivers since injured parties were informed of the risk and consciously chose to sign the waiver that releases the company from liability, O’Brien says. In many cases, a simple motion by an attorney armed with a signed waiver can lead for an early dismissal saving everyone time and money spent on attorney fees, court fees, mediation or settlement conferences, and of course, the ultimate monetary settlement. While O’Brien has beaten cases using waivers, he has not done so in the chauffeured transportation industry — yet.

Why Use A Waiver?

According to industry insurance sources, there has been a dramatic increase in party bus passenger injuries with many triggering multiple claims from a single incident. This isn’t surprising considering the California Public Utilities Commission reported a huge increase in the number of companies operating buses in the past five years. In 2009, there were 6,000 operators of party buses. By 2014, there were 9,000. The larger the market, the more exposure for insurance carriers. Having chauffeurs instruct passengers to sit down while in motion isn’t enough. Having signs posted asking guests to remain seated isn’t enough. People fall and people sue. Drunk people have slipped stepping out of party-buses and sued the operator. Having a signed liability waiver seriously reduces your liability. If you make it all the way to trial, you will have a great piece of evidence showing you really tried to operate your bus safely and the person suing you agreed in writing to follow rules and failed. That alone increases your chances of a favorable outcome.

Creating A Bus Disaster Plan

In the event of a catastrophic crash or incident, you need to have plans in place to address the concerns of loved ones immediately. We live in a “now” society and people expect answers immediately. Social media sites such as Facebook are set ablaze with inaccurate information and speculation in a disaster.

By establishing protocols ahead of time, you will be better prepared to respond publicly in a compassionate way. In the event of a crash or bus-jacking incident, loved ones will want to know if a specific passenger was on the bus. Responding law enforcement agencies will need to communicate with the company in the course of investigating the incident. This planning guide will prepare you to respond to an accident in a professional and responsible manner.

Establishing Law Enforcement Communication
• Contact law enforcement in the jurisdiction upon a bus incident
• Advise the nature of the call received about your bus
• Provide a company contact name and telephone number for further communication about the incident

Maintain A Passenger Manifest
• Always maintain a list of every soul on your bus
• The list can be created and held by the group leader
• The list can be created and held by your company

Maintain A Passenger Disposition List
• Obtain the name of any passenger transported away from a crash
• Obtain the destination of the transported passenger
• Obtain any information on the condition of the passenger

Create A Dedicated Information Phone Line
• Define a phone line that can be dedicated for passenger information
• Provide a cell phone number or backline on your phone system
• Confirm only the status of attendance on the bus and the disposition
• Never comment on the condition of the passenger

Designate in advance: A Public Information Officer
• Assign one person to handle all media inquiries
• Review and control information provided - limit to basic information
• Upon contact by media, provide the information hotline number
• Never speculate on anything you tell the media
• Never reveal any personal information about your driver

Designate in advance: An On-Scene Official
• When practical - dispatch a company official to the crash scene
• Arrange transportation for passengers stranded at the scene

Accident Scene Documentation
• Take photos and videos documenting the area
• Take photos of skid marks and debris fields
• Take photos of any traffic signals or controls

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