Investigating Commercial Vehicle Claims

Episode Notes

Transcript

Best’s Insurance Law Podcast

Investigating Commercial Vehicle Claims

12/03/2020

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Intro: This is the Best Insurance Law Podcast brought to you by Best Recommended Insurance Attorneys.

John Zuba: Welcome to Best Insurance Law Podcast, the broadcast about timely and important legal issues affecting the insurance industry. I’m John Zuba managing editor of Best’s Insurance Professional Resources. We’re pleased to have with us today, James Barbieri from independent adjusting and investigation company, Claims Advantage in Georgia. James is the President and CEO of Claims Advantage. He’s a former police officer and has a BS degree in criminal justice. Mr. Barbieri is a certified insurance fraud investigator adjuster and has been conducting SIU investigations for over 30 years. Jim, thank you so much for joining us again today.

James Barbieri: John, thanks for having me. It is great to be back on the AM Best’s Insurance Law Podcast.

John Zuba: Jim, thanks so much. Today’s podcast discussion is investigating commercial vehicle accidents and commercial vehicle accident fraud. Jim, for our first question today. What are the statistics for commercial vehicle accidents in the US and how many fatalities involve tractor-trailer trucks?

James Barbieri: According to the Federal Motor Carrier Safety Administration, there are over 500,000 tractor-trailer truck accidents in the United States with over 5,000 fatalities per year. As you know, John, commercial vehicle policies have high insurance policy limits and the injuries in these accidents are more catastrophic than most claims.

John Zuba: Jim, what is the procedure that you follow as an investigator when you receive an assignment for tractor-trailer accident with serious injuries or fatalities?

James Barbieri: Well, first of all, it’s imperative to have the investigator or an adjuster respond as soon as possible to the accident scene and canvas the area for any potential witnesses, why their recollections are fresh. We normally obtain recorded statements from witnesses. We also canvas the area for surveillance cameras on nearby businesses or even on some houses that have ring doorbells to see if there’s any video footage of the accident. The other thing that insurance carriers will usually hire defense counsel and all of our work product is protected and privileged when we report to an attorney. In some cases, the attorney will verbally interviewer or take a statement from the driver, which will be protected on the attorney-client privilege.

John Zuba: What else do you do as an investigator at an accident scene?

James Barbieri: Well, I mentioned that we canvas for witnesses, we document the scene using a camera, photographing, measuring, tire marks, skid marks, roadway gouges as well as debris field. And if we get to the accident and it’s already been cleaned up, we look for police accident reconstruction marks on the roadway. The police accident reconstructionist will normally spray paint the roadway surface. From the markings, we are able to determine the positions of the vehicles upon impact in their resting locations. Again, this usually occurs after the accident, and the accident has been cleaned up and the roadway markings remain. While at the scene, we attempt to get as much information as possible from the police and other authorities. In some cases, we verbally interview the driver if the attorney wants us to do that regarding the facts of the accident and determine if there is a dash camera system on the truck or a Bendix system or some other type of system that may have captured the incident on video.

In most cases, insurance companies or defense counsel does not want the investigator or adjuster to obtain a written or recorded statement from the truck driver as a statement could be discoverable. In several cases that I’ve handled, as I mentioned, the defense counsel would usually prefer to interview the driver.

John Zuba: Jim, how do you handle a situation where there is a fatality or fatalities?

James Barbieri: In cases of a fatality or fatalities, again, immediate response and one of the first things we like to do is identify the decedents. This can be done by running a license plate on the decedent vehicle if the plate is available.

(00:05:00)

If the investigator or adjuster is not assigned to investigate the accident that same day, one of the things I like to do is reach out to the heavy equipment tow company and determine if any of the salvage recovery personnel from the tow company obtained photographs. As you can imagine, salvage recovery operations can be very expensive and these guys want to get paid, so I usually get photographs in most cases that were taken by the salvage recovery personnel, which could be very helpful.

I handled a double fatality outside of Atlanta. It was a very strange, complicated accident and we could not figure out how this accident happened. After a fatality accident, usually the police report is not available. It could be anywhere from a month to a year. But what is available is the fire department report, so in that particular case, I have never seen this before but the EMS guy in the ambulance verbally interviewed the woman who caused the accident and that was actually written in the fire department report. So it’s helpful to get any and all reports from the fire department. I recently handle a triple fatality here in Georgia, and when I arrived on scene, the back of the decedent’s vehicle was completely demolished and I could not find the license plate. Unfortunately, Georgia was a one-plate state and there are no front license plates. I was trying to identify the decedents that were involved in this triple fatality, but I was not having any success.

One of the things we do as investigators at the accident scene is, we take a lot of photographs. I got up to the vehicle and photographed the vehicle and I managed to stick my head in without touching anything because it’s evidence. I photographed a paper lying on the front seat of the vehicle, which had one of the decedents name on it. From that I was able to identify at least one decedent and further investigation, I identified all three decedents.

John Zuba: Jim, how do you handle the physical evidence such as the involved tractor-trailer?

James Barbieri: John, in most cases involving fatal accidents the investigative police agency will impound all vehicles involved in the accident. The vehicle is usually removed by heavy duty rotator wrecker, and which I mentioned previously about the salvage recovery companies. They secure the vehicle in their toll facility pending inspections by the police. And we usually request that the tow company leave the key in the truck, but do not start the engine. After the vehicle is released from impound, we usually have the tractor-trailer towed to a secure facility and secure the vehicle into evidence, especially in cases involving serious injuries or fatalities, we need to preserve all evidence or we could face a spoliation of evidence claim and possible sanctions by the court if it goes to trial. While secured — and we even go to the extent of shrink wrapping the cab of the trucks and nobody would go into the truck. The reason why we don’t want anybody to start or turn over the engine is because the ECM data could be altered if the vehicle is started.

It is therefore important to tag the vehicle as evidence. Sometimes we use evidence tags and I mentioned shrink wrapping the cab and we been tape a sign on the truck that reads, “Do not start or turn over the engine.” Later in the claims process, we schedule inspections of the tractor-trailer and as well as the claimant vehicle or vehicles, where we have our expert and usually an expert from the claimant attorney’s office that attends the inspection. They use a three-dimensional scanner, which is a pretty cool device. It’s on a tripod and it’s a rotating thing and it turns and it scans the vehicles and creates a three-dimensional image. The other thing that they do is they download the ECM, which is electronic control module on the truck in the EDR, which is the event data recorder on the vehicle or vehicles.

(00:10:00)

John Zuba: Jim, what are you seeing in terms of commercial and automobile related fraud claims.

James Barbier: John, in my previous podcasts on insurance where I talked about staged-collision fraud rings involving personal automobiles. This type of fraud also occurs in commercial vehicle accidents as they have large commercial policy limits. When a fraud sees a commercial vehicle, they see dollar signs. As in the case of fatalities in cases involving serious injuries, again, it’s imperative to respond immediately to or as soon as possible to suspicious accidents. When on the scene, the investigator needs to search any nearby businesses again for surveillance cameras or ring doorbell cameras that may have captured the accident on video. It’s important to measure and photograph the damages to both vehicles. In some cases, we will hire an accident reconstructionist, especially if we have a case where the damages do not look like they’re consistent with the facts of the accident.

We use an accident reconstruction specialist with fatality accidents, but they are also useful in minor or moderate impacts involving suspicious circumstances. The expert as he does in the inspection of fatalities will download the ECM, which is electronic control module. It’s also referred to as the black box that records the speed of the truck up to 59 seconds prior to the event and 15 seconds after impact. It also records sudden deceleration, which is braking, any hard braking. Engine settings, accelerated information, audit trails and any diagnostic fault codes. In several of these cases that I handled. The expert confirmed that the truck never struck the claimant vehicle.

A case in point, I had one case where a tractor-trailer was driving in the right lane on Interstate 20 in Atlanta, when alleged claimant vehicle flagged down our driver to report that our truck sideswiped his vehicle. Our driver was adamant that he was maintaining his lane, he never changed lanes and he just denied sideswiping any vehicles. The claimant obtained our driver’s personal identification information and then he left the scene without calling the police, which that in itself is a red flag. The first thing I did when I got the claim was to hire — I got permission to hire an accident reconstructionist to examine both vehicles. There was no damage on the trailer area of the alleged impact and there was a large black scuff mark on the left rear quarter panel on the claimant vehicle. I obtained a detailed statement from the claimant and the purpose of the statement was to lock him in regarding the damages because the damages didn’t add up, they don’t look right. He confirmed that the black scuff mark was caused by the trailers rare tires running up against the quarter panel.

The expert’s report indicated that the black mark was caused by the vehicle rubbing up against a tire covered object and not caused by tire or anything that was on that trailer. We denied the claim successfully and the claim went away.

John Zuba: Jim, you had a previous podcast with us earlier this year on insurance fraud and COVID-19. You talked then about staged-automobile collisions involving personal vehicles. Do you see any large fraud rings at that stage involving commercial vehicle accidents?

James Barbieri: Absolutely, John. This fraud ring, I’m going to discuss was covered extensively in the news media. Back in 2018., I had a large trucking company client, semi, 30 or 40 files involving suspicious tractor-trailer truck accidents that occurred around the port of New Orleans in New Orleans, Louisiana. Virtually, all the cases, the truck would be merging onto Interstate 10 and was allegedly sideswiped the claimant vehicle. Several of those cases involved witnesses who would flag down the driver and inform him that the truck was just sideswiped.

During the course of my investigation that it’s extensive fraud ring, I made contact with another insurance SIU investigator through a group that I’m a member of.

(00:15:03)

That SIU investigator had information or had an informant who said that an individual by the name of Damien Labeaud a.k.a. Big Boy. His alias was Big Boy. He was a runner for a couple of personal injury attorneys in the New Orleans area and they were staging numerous accidents involving tractor-trailers. The fraudsters would have a chase car on the shoulder of the highway, and they had another vehicle waiting at the bottom of the on ramp for any tractor-trailers entering the highway. In some cases, the truck would sideswipe the claimant’s vehicle because it’s basically the claimant vehicle would just drive right up into it. In other cases, the collision never happened but the set-up witness again is parked on the shoulder would chase down the truck and say, “Hey, you just sideswiped the vehicle back there.” They would present themselves as an independent witness.

As I mentioned, there were several new stories on this fraud ring in Louisiana and one of the advantages we have is that we can get police body cam footage, and there was plenty of police body cam footage documenting these individuals saying how the accident occurred. In most cases, there were several passengers in the claimant vehicles and they would get representation from the same law firms. I painted a big 10-foot-tall white board on the wall in my office and I had these flowcharts of the medical providers and law firms that were involved with these individuals in the cases that I handled.

The claimants would claim serious injuries and get numerous injections, expensive diagnostic tests and almost always they had surgery. During the course of my investigations, I worked with now retired Louisiana State Police Sergeant Joe Koshier on several of these cases. And eventually, the US attorney’s office became involved as the attorneys got settlement checks through the mail, which made it a federal case because it’s considered mail fraud. And this individual, Damien was indicted by a grand jury and he pled guilty to staging at least 40 accidents with tractor-trailer trucks and the indictments stated that he was working with a particular law firm.

Coined on the news articles, attorney A would pay Damien — I got a trouble saying his last name, Labeaud, $1000 for every passenger he recruited. In two cases Mr. Labeaud was a driver who would intentionally strike tractor-trailer, and at one case, he drove up to the accident scene and presented himself to the police as an independent witness. This was a multimillion-dollar fraud ring and there have been over 32 arrest in these cases the investigators had the benefit in a lot of these cases of having the dash cam videos. And one case, a video from a local business, which showed this insurance scam in progress.

As a result of the federal charges, a trucking company victim filed a federal RICO lawsuit which as you know is the Racketeer Influenced and Corrupt Organizations, usually they go after mob guys with RICO. But they filed on the RICO against Attorney Daniel Patrick Keating, Jr., Damien K. Labeaud and Mario Solomon.

John Zuba: Jim, are there any final thoughts for our audience today?

James Barbieri: John, the trucking and insurance companies need to be familiar with the red flags or fraud indicators when handling commercial vehicle claims. It’s imperative that you have an investigator or adjuster respond to an accident scene as soon as possible, usually within an hour of the accident for the reasons I outlined earlier in the podcast. If you have a case like I had regarding suspicious damage on the claimant vehicle, the insurance company should spend a little money and set up an inspection with an accident reconstructionist to determine if the damages are consistent with the facts of the accident.

(00:20:02)

I would rather pay a couple of thousand dollars at the beginning of a claim rather than tens of thousands of dollars in a settlement. But it’s sometimes difficult to get permission to use a reconstructionist because the insurance company doesn’t want to spend the money. The old expression, “Penny wise and pound foolish” applies in these instances. Trucking companies should hire an investigator adjuster to respond as I mentioned. If it’s a fatality, they should have the defense counsel assigned so we can report to defense counsel so we have the protection. There are many trucking companies who do not even report the accident right away to the insurance company, which is not a good idea. They usually have a supervisor respond to the scene. But the problem with that, is that they do not for the most part have investigative experience. They pretty much — the triple fatality I just handled, the supervisor was just sitting with the driver in the truck and he didn’t get any photographs, so it’s good that I responded right away and documented the scene. So get an investigator to the scene while it is still fresh and don’t be penny wise and pound foolish.

John Zuba: Jim, thank you so much for joining us again today.

James Barbieri: Thank you John for having me.

John Zuba: That was James Barbieri, President and CEO of Claims Advantage in Georgie. Thank you all for joining us for Best’s Insurance Law Podcast. To subscribe to this audio program, go to our web page www.ambest.com/claimsresource. If you have any suggestions for a future topic regarding an insurance law case or issue, please email us at [email protected]. I’m John Zuba, and now this message.

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