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Cities across the United States have seen a reduction in motor vehicle traffic and use as a result of COVID-19 and subsequent business closures, work-from-home policies and government emergency orders. Some auto insurance companies have even provided credits or discounts to their insureds due to the unexpected reduction in claims. But while there may be less traffic, that does not mean accidents have stopped altogether. However, in an effort to curb the spread of COVID-19, some police departments across the nation have revised their procedures for responding to non-injury automobile accidents, particularly in large metro areas and COVID-19 hotspots.

In early August 2020, for example, the Atlanta Police Department implemented a temporary but controversial policy of no longer dispatching officers to the scene of non-injury automobile accidents. Instead, individuals involved in a non-injury automobile accident were directed to fill out a form online, which included the location of the accident and the vehicles and drivers involved. The temporary policy was reversed within two weeks as the number of vehicles on the streets increased, but police departments implemented similar online reporting policies for non-injury accidents in several other states, including Kentucky, Indiana, Pennsylvania, New York and Colorado. 

For businesses that operate vehicle fleets, it is important to be aware of such law enforcement policy changes. To reduce the risk of costly liability, such businesses should take steps to ensure internal reporting and investigation procedures are in place in the event of an accident.

What Happens Without a Formal Police Report?

In claims handling and litigation as well as internal company investigations, formal police reports and associated dashboard and body camera videos often provide important information about the physical condition of the parties, damage to the vehicles and the facts and circumstances of the accident. Without a formal police report, insurers, employers and attorneys are left with a “he said, she said” situation.

In the event of a lawsuit, the lack of a formal police report can also negate or diminish certain claims and defenses typically raised by both parties. For instance, it may be more difficult to determine fault without a responding police officer, and parties will not be able to rely on negligence per se theories of law without a citation. Causation arguments may also be affected as there is no neutral individual, like a responding police officer, to document any statements regarding injuries (or lack thereof), which are often used by both sides to support or dispute the relatedness of the claimed injuries to the motor vehicle accident.

Plaintiffs’ attorneys are likely to argue that accident-related injuries are not always immediate and recognizable at the time of the accident, and may not arise until days after. Additionally, plaintiffs’ attorneys may argue that any delays in seeking medical treatment were the result of concerns about COVID-19, as some individuals may be reluctant to go to the hospital or seek other medical treatment. Defense attorneys are concerned for the potential of fraud and misrepresentation without a neutral, responding police officer.

There are also questions about how to reconcile these new COVID-19 procedures with state statues that require auto accidents to be reported within a certain period of time if there is a death, personal injury or property damage in excess of a specific amount. For example, Alabama requires a report within 30 days if there is an auto accident involving a death, personal injury or property damage totaling $250 or more. Massachusetts requires the reporting within five days of an automobile accident involving a death, personal injury or property damage in excess of $1,000. Since injuries may not be apparent until a few days after the accident, the statutory deadline to report may have already passed before the need to file is established. 

Even if there are no injuries, some statutes mandate reporting for a specified amount of property damage. It is often difficult for an individual to assess the value of property damage at the scene, however, particularly if they are reluctant to get out of their vehicle and inspect the damage due to COVID-19 concerns.

What to Do When Accident Reports Are Unavailable

Many insurance policies, including commercial automobile policies, require that the police be notified and a police report be completed as a condition precedent for coverage. A self-completed form may not be sufficient to qualify as a police report. If the self-completed form is not submitted to the state’s department of driver services, insurers will not be able to submit an open records request to obtain the form and will have to instead rely on the involved parties for important information about the accident to determine coverage and liability. This presents concerns for potential fraud and misrepresentation.

Without a police report, businesses will have to rely on their employees to obtain the necessary information to document the accident. In addition to internal reporting and investigation procedures, businesses should implement robust and detailed corporate training and safety programs. These programs should ensure all impacted employees are well-versed in reporting policies and procedures and are prepared to preserve all relevant evidence from the scene. This can also help prevent any claims of spoliation by the other side in the event of litigation. Such measures could include the following:

Take photographs of the vehicles involved. It is important to get multiple photographs from various angles of both vehicles depicting the damage claimed to be the result of the accident. It is also prudent to get photographs of overall condition of the vehicles, which can show unrelated damage or may be useful if additional damage is later claimed by the non-at-fault driver. It is essential that employees are trained to take photographs of the property damage to both vehicles after an accident, as there will be no accident report or body camera footage to confirm the extent of any claimed property damage.

Complete incident reports. Companies whose business requires significant driving, such as those in the transportation and delivery industries, should have incident reports readily available for their drivers to complete within a short, specified period of time after the accident. The information in the report should include the make and model of all involved vehicles, the names of the involved parties and any eyewitnesses, the location of the accident, a description of how the accident occurred, and whether there were any injuries reported at the scene.

Record statements. Even if an incident report is completed, it is a good idea to take a verbal and, ideally, recorded statement of the company employee involved. This can provide additional support for the employee’s account of the facts and details about the accident in the event of a pre-suit demand or lawsuit. To the extent possible, it would also be helpful to obtain statements from any eyewitnesses. These should be collected as soon as practicable after being notified of an accident to get each side’s description of the accident, as that information will no longer be available on the accident report.

Know your company’s policies. If your company has policies in place regarding internal investigations of accidents, be sure to follow those policies. Once a lawsuit is filed, discovery requests are often sent to obtain the company’s handbook, training materials and other documents reflecting its policies and procedures. Plaintiffs’ attorneys can raise additional detrimental arguments and inferences when a company requires an internal investigation, but no investigation is conducted.

Conduct regular safety and training sessions. These can be modules, meetings, bulletins or any other means that document that employees are receiving regular information about safe driving.

Send open records requests. While there may be no accident report, if any of the parties called 911 after the accident, these records can often be obtained through an open records request. Audio recordings can be helpful in arguing the involved parties were not injured in the accident. These calls may also provide significant information about the accident, the parties and witnesses.

The key is to get as much information about the accident as soon as possible after it occurs, as lawsuits arising from such incidents are not often filed until several months or even years after the event. During that time, evidence like photographs may be misplaced or deleted, important details of the accident can be forgotten or changed, and witnesses and employees can become unavailable.

Kori Eskridge is an attorney for Swift, Currie, McGhee & Hiers, LLP, practicing in the areas of property liability, premises liability, automobile liability and fraud for corporate and insurance clients, as well as insured individuals.
Kelly Chartash is an attorney for Swift, Currie, McGhee & Hiers, LLP, representing clients in matters related to third-party insurance coverage disputes, automobile litigation and premises liability.