When Associated Wholesale Grocers (AWG) agreed last month to settle a civil lawsuit brought by the families of eight victims killed in an Oklahoma crash caused by a company driver in 2009, it served as a stark reminder to the industry that even the best drivers can have accidents with tragic consequences.
The settlement paid the families $62.7 million, with AWG and its driver, Donald Creed, responsible for $62 million of it. The accident killed 10 people in all, injuring five others. The company had previously settled with families of the other two victims.
Creed, who was 76 years old at the time of the crash, pleaded guilty to 10 counts of negligent homicide, a misdemeanor in Oklahoma, in a plea deal. He was sentenced to a year of probation on each count, ordered to serve 30 days in a county jail, and wear an electronic monitoring device in his first year of probation. He is also barred from obtaining a commercial driver's license.
According to the National Transportation Safety Board (NTSB), the cause of the crash was the result of Creed's fatigue due to acute sleep loss, mild sleep apnea and circadian disruption associated with his shift schedule. Creed had just returned from a vacation and was still adjusting to the shift, which began shortly after 3 a.m., NTSB said. The Board said that Creed never reacted to the backup of traffic caused by an earlier accident along Interstate 44 near Miami, OK. Creed drove his truck, traveling at 69 mph in a 75-mph zone, into the back of a stopped SUV, setting off a chain-reaction crash. The accident occurred at 1:19 p.m., roughly 10 hours after Creed started his shift. NTSB said that Creed failed to apply brakes or take any evasive measures to avoid the collision.
While this incident is to the extreme, even one fatality can have dire consequences for a fleet. According to news reports at the time of the incident, Creed had a stellar driving record in 18 years of service with AWG. The company's lawyer said there was nothing in his history that suggested an incident like this was possible, and that the truck Creed was driving had “state-of-the-art” equipment onboard.
“To this moment, we know what happened, but we don't know why,” AWG attorney Jim Secrest told Fleet Owner. “This guy (Creed) had 5 million miles without one personal injury accident.”
Secrest said that AWG's fatigue management program was not as strong as it could have been and that the company has improved the program since the accident. “It was not as intense as it should have been and I think AWG acknowledged that,” Secrest said.
The question for fleets, though, is if having a fatigue management program in place is enough to mitigate the likelihood of a large settlement in a situation where a company driver is involved in a fatal accident.
“Anything that a company can do to show it is exercising due care is going to be helpful,” attorney Eddie Wayland told Fleet Owner. Wayland is a partner in the law offices of King & Ballow in Nashville, TN. He supervises the litigation section for the practice and has experience defending trucking companies.
“The bottom line is, there is an inherent risk involved when you have human beings involved,” Wayland added. “I'm not aware of anything a company can do to eliminate the risk.”
The best advice Wayland can offer is for fleets to remain vigilant, investigate new technologies, and stay on top of their driver training programs.
“If your truck rear-ends somebody, you're liable,” he said. “It's just companies need to continue to be diligent. …There is no way you can eliminate the liability, you just have to show you are doing everything you can to” mitigate the risk.