Q: One of our employees called her supervisor to answer his texted question about a project. While on the phone, she rear-ended another car. She wasn't on work time, as she'd signed out for the day and had stopped at the grocery store and gas station on her way home.
Luckily she didn't hurt herself, and the other motorist said the only problem was his front fender, which had already been dinged. He told her he didn't have insurance and offered to "settle up" for $250. She wrote him a check and left.
She then called her supervisor, said her check would bounce because she only had $125 in her checking account and asked if the company would reimburse her at least half. When the supervisor asked if she'd called her insurance company, she said, "No, I've had too many accidents and didn't want my rates to go up."
He says she's a "good kid" and said he'd need to ask management for permission before writing a check. She said she's worried we'll make a "big deal out of it." Do we cut her a check for $125?
A: No one wants higher insurance rates, which makes informal post-accident deal-making appealing to drivers suffering only minor damage. That doesn't make it a good move.
Your employee's actions are a big deal. What if the other driver realizes a week later that he suffered whiplash or another residual physical injury? Mild whiplash can show up weeks after an accident and can take upwards of a year to heal.
If your employee doesn't involve her insurance company, she's potentially personally liable for the other driver's chiropractic care. Or – your company is. You say your employee wasn't on work time as she'd signed out for the day – except maybe she was. After all, she made her call in response to your supervisor's text.
If the other driver reports the accident to the police and his physical care results in long-term medical treatment, your employee runs the risk of being charged with leaving the scene of an accident. Any motorist involved in an accident that results in physical injury or property damage exceeding $1,000 must call the police.
What policies does your company have that instruct supervisors and employees not to talk on their cellphones when driving? If you don't have any, write one immediately, even though it won't cover this situation. If you let employees talk on cellphones when driving, you risk your employees injuring themselves or injuring or killing others. If that happens, your company can easily wind up defending a lawsuit as it has deeper pockets than your employee. A major stock brokerage paid $500,000 to a family when an employee dropped his cell phone on the vehicle floor, bent to retrieve it, ran a red light and killed a motorcycle rider.
If you have a policy, and your supervisor allowed his employee to talk with him while he could hear street noise in the background, he owns part of this problem as his practices contradict your policy. A plaintiff could argue that your company is directly liable for the accident due to its negligence in failing to restrict cell usage and because your supervisor allowed a driver with a poor driving record to distract herself with a phone conversation.
Not only could an injured plaintiff allege that your employee was acting within the scope of her employment at the time the accident occurred, but your employee could assert that cellphone use, even when driving, is an expected and even encouraged part of the job.
Finally, ask your insurer and potentially your attorney about reimbursing your employee. After all, your supervisor invited himself and your company to the scene of this accident by talking with his employee on her cell.