Unfortunately, construction site accidents are a reality that even the most careful of contractors and subcontractors may encounter. While the time immediately following an accident can be chaotic, keeping a level head and following the 5 steps below will assist contractors and subcontractors in protecting their interests and paving the way for a smooth investigation and resolution of any claims that may arise. “CRASH!” helps you remember the steps to take: 1) Call 911; 2) Report; 3) Assess employees; 4) Secure evidence; and 5) Harness the investigation.
C- Call 911– if there is a medical emergency, the first step is to get proper medical attention to all involved.
– To OSHA – if the accident involves either the hospitalization of three or more persons or a death. The required call to OSHA must be made within 8 hours following the death or hospitalization. Note that this is a separate requirement from the duty to record and log incidents involving injury.
– To Insurers– as it is critical to provide prompt notification of an accident to any insurance carrier that may provide coverage for any claims that may arise out of the accident. This may include the workers’ compensation carrier if an employee is injured and/or a liability carrier if others have been injured or if there is property damage. It is advisable to contact your insurance broker to ensure that all applicable carriers, including potential excess carriers, are given notice. Notice should also be given to insurance carriers who have included you as an “Additional Insured.” Failure to provide notice may jeopardize any insurance coverage that you otherwise may have had.
– To Others– depending on the circumstances of the project or the contractual relationship with various entities, you may be required to report an accident involving injury or property damage to the general contractor and/or the owner. Additionally, if the accident involves a particular product or piece of equipment, it is generally advisable to notify the manufacturer and/ or supplier in time for them to participate in any investigation.
A- Assess Employees- to determine their likely role in any potential claim that may arise from the accident. If they have been injured, they will likely be workers’ compensation claimants whose interests may not be aligned with yours. However, if they were involved in an accident in which someone else was injured, they may be in a position to bind you with statements they may make or actions that they take. Before decisions can be made regarding the taking of possible recorded statements or other investigation, a general assessment of the possible claims they may either make, or be involved in the defense of, is worth considering.
S- Secure Evidence– as soon as possible. The duty to preserve evidence begins as soon as you should know that the evidence may be relevant to anticipated litigation. Failure to secure evidence can lead to a court instructing a jury that they may infer that the evidence would have been damaging to you. Note that types of evidence to secure may include, but is not limited to: equipment involved in an accident, witness lists, e-mails, security videos, photographs, invoices and other documents. Note also that some evidence must be protected in order to allow for precise forensic examination. Therefore, taking the steps necessary to protect any evidence may include contacting a professional to protect the scene and store the evidence.
H – Harness the Investigation- from the outset. It is imperative to determine who will control the investigation so that it can be handled appropriately and so that you may benefit from any attorney client-privilege or attorney-client work product that may be applicable. Note that many insurance companies will provide defense counsel to supervise or direct initial scene investigations.