Propane company recordkeeping critical in accident investigations

April 1, 2009 By and    

When it comes to accident investigation, plaintiff’s legal beagles will leave no stone unturned in assigning or insinuating liability.

The biggest challenge for companies defending a liability claim is to prove that what they did was within the confines of code and reasonable safety expectations. However, that may not satisfy the insatiable appetite of plaintiffs hunting during discovery.

They will want all of your records regarding training, safety meetings, procedure forms, company policy and more. The documentation and content of your record-keeping will be critical to your defense after an accident. It will take hundreds of hours of depositions and interrogation. In the end, you will feel that you were damned if you did and damned if you didn’t, even if your action or inaction had no specific relation to the facts of cause.

These lawyers will infer anything to win their case. And they do. There are many examples of such allegations taken out of context to prove doubt and infer liability. An even uglier scenario is when “experts” testify to support such tripe for money.

Let’s discuss how to avoid and defend against such extortion in the name of discovery and why all employees must pay attention to the ramifications of such invasive tactics. With awareness of exposures and reasons for following rules, regulations and documenting procedures comes the promise of being defendable.

Record-keeping, documentation
When I speak before a group or moderate discussions and workshops, I often ask about internal documentation and the security of those documents.

What would happen if those records were lost? How might that happen? What steps have you taken to preserve such valuable information?

Those records include documentation of Gas System Checks, out-of-gas leak checks, work orders, customer safety communications, Department of Transportation records, Occupational Safety and Health Administration compliance, personnel safety training records, vendor safety compliance, contractor and sub-contractor relations, company safety meetings, written material discussed and company safety policy. These are just a few of the records that will be important in the event of a liability claim. The list is actually much longer.

You have many forms of such information in your office. How you use them to manage your company will be part of the plaintiff’s strategy to cast doubt and disbelief.

Such documentation can assist with a successful defense or document a gap in procedure. Therefore, I recommend you keep good internal records and protect them from loss via fire or some other act of loss such as computer crashes.

Written company safety policies are an excellent idea. However, they also may commit you to compliance. In other words, you want to make sure company policies are adhered to, especially if some of those policies are best-practice concepts rather than code requirements – such as Gas System Checks. Those policies should not be broader than day-to-day practice.

Set the tone
Inspect what you expect when it comes to safety records, assuming another party may ask to inspect them after an accident.

The very act of inspecting and protecting those records will underscore their importance and help set the tone for legal safety.

In the end, the key issues will come down to whether the scope of your work was within the confines of code and reasonable safety expectations.

I wish the system were always fair and equitable when it comes to energy liability allegations, but that is not always the case. Propane marketers have long been held to broader liability standards than other energy industries, such as the natural gas industry. The nature of the product, including the issue of interruptible supply, has contributed to numerous inequitable assignments of liability.

At your next management meeting, discuss these issues in terms of being defendable. Then I recommend you establish a review of all documentation that might come under scrutiny after an accident. Such review and inspection can help set the tone for safety meeting and training needs that can prevent accidents and protect the bottom line.

Just remember: The best legal defense is always a strong safety offense.

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