Collision repairers face growing exposure related to advanced driver assistance systems, but documentation, training, and proper procedures can go a long way toward reducing risk. To better understand the risk and how collision repairers can help mitigate it, FenderBender spoke with Rebekah Cooper of The Cooper Firm and Sean Preston, founder and managing attorney of Coverall Law. The Cooper Firm is a nationwide catastrophic injury and wrongful death law firm based in Marietta, Georgia. Coverall Law, headquartered in Wareham, Massachusetts, specializes in legal services for the collision repair industry. You can also listen to our interview with them on the July 7 episode of CollisionCast.

Cooper says product liability cases differ from traditional personal injury cases. As an example, showing fault in a typical rear-end collision is straightforward. In contrast, product liability cases require extensive investigation.

“Before we even consider filing a lawsuit, we need experts to determine whether there was a defect in the product, or whether the repair was performed improperly,” she says. For about 95% of the cases referred to her firm, an investigation doesn't reveal a problem, so they turn down the case.

The cases her firm accepts require significant time, money, and technical analysis, she says. While ADAS certainly changes the landscape, if these systems are functioning and repaired correctly, they should reduce crashes overall. The problem arises when they are not functioning correctly or have not been repaired properly.”

“My first case in this industry involved an insurer suing a repair shop over a claim that occurred years later,” Preston says. The insurer looked at every company that had touched the vehicle.”

The insurer pursued the repair shop, a service provider, and anyone else connected to the vehicle's history, he says.

The problem wasn't necessarily what the shop had done, but that years later, the documentation wasn't there to prove what had been done.

“That's why I always tell shops: document, document, document.”

How Long Should Shops Keep Records?

Preston says the time frame for how long shops should retain records varies by the state in which the shop operates and the type of claim, so consult an attorney familiar with the laws in your state. Negligence claims may have one time frame, contractual claims another, and consumer protection statutes can extend those timelines further.

Cooper says it’s important to not only be able to provide documentation but to adhere to a formal retention policy, whether that’s five years or 10.

“I think anything less than five sounds a little unreasonable. But once you have one, you have to follow it.”

A case her firm is litigating against an automaker has a policy that requires that testing records be retained for 20 years. The problem is they didn't retain all those records.

The lesson is simple: whatever retention policy you adopt, follow it consistently.

Vetting ADAS Calibration Providers

Many repairers believe that if they sublet ADAS work, the liability goes to the company performing the calibration. But Cooper and Preston note that's not the case.

Cooper and Preston compare it to a general contractor building a house.

Preston says the repair shop is not expected to be the expert for everything, but it is expected to be able to spot issues.

“If the contractor hires a subcontractor to install the gas lines and the gas lines leak, the contractor can't simply say, ‘It's not my problem,’” Cooper says.

The homeowner hired the general contractor to find qualified people, she says, and the same principle applies here. Shops should conduct a reasonable vetting process and document it. Visit the facility, examine the equipment, and ask questions. Confirm that procedures are being followed. Ask yourself what you would want to know if it were your child's vehicle being repaired, and then document the answers.

Additionally, she says, reviews need to be ongoing.

“Don't assume one review lasts forever. If you vetted a provider six years ago and haven't checked on them since, that's a problem.”

For shops doing their own calibrations, Preston would prefer to see them separate that operation.

“I do not think that ADAS work should be done out of the shop. I think there are a lot of reasons to have that siloed into a separate entity, even if there is some crossover in ownership.”

Reduce Liability in Transporting the Vehicle to the Calibration Facility

Of course, most reading this article have operated vehicles for year, perhaps decades, without the need for ADAS making travel safer. But Preston cautions against the common practice of driving the repaired vehicle to a calibration facility with certain functions inoperative. Instead, he advises, have it towed to the facility.

“Even if nobody got hurt and there’s just some little fender-bender because of a malfunction, that is dumb. It is so avoidable.”

Three Things Shops Can Improve Immediately

For shop owners worried about liability exposure, there are three improvements they make right away, Cooper says:

1. Document employee training.
2. Document the work employees perform.
3. Follow OEM repair procedures.

A case her firm is working on at the time of this writing is a forklift repair company. During discovery, it became clear that the technicians had never reviewed the manufacturer's repair manual and didn't even own one of the basic tools, a force gauge, required to perform a proper inspection of the parking brake.

Preston agrees.

“Document training. Document that OEM procedures were researched and reviewed. Put those procedures in the repair file. Even if you pulled the information a month ago, pull it again. Procedures change. Also document your decision-making process.”
As Preston points out, there are times where there is more than one reasonable course of action. But If you make a decision, document why you made it.

One of the questions that emerged from the John Eagle case was simple: Did the decision made by the shop to use epoxy adhesive instead of welds on the roof skin make the vehicle safer?

“The insurer may have pressured them, but ultimately, the shop made the decision. And the question was, did that make the vehicle safer? And if you can't say yes, if the answer is it made it less safe, you are in a heap of trouble. If quality is your number one, safety can't be sacrificed.”

This article does not constitute legal advice and is presented for informational purposes. FenderBender readers should consult with an attorney familiar with the laws in their state.