Could You Be Guilty of Manslaughter by Gross Negligence?

This article is intended to make you really think about your business practices and decisions, and how they could affect Post Repair Inspections (PRIs) or the more scientific Quality of Repair Inspections (QRIs).

Due to changes in health insurance coverage laws (the "Obama Health Care Plan"), a poor economy and everybody tightening their belts to save money, lawyers are exploring and investigating accident claims more intently. Lawsuits for injuries are on the rise, and lawyers are now utilizing services like CARFAX to research the repair history of a vehicle before having it inspected for any previous improper repairs. This could be a major problem for collision repair professionals.

In a court of law, the only things that matter are the facts, evidence and documentation. In recent times, we have seen many OEMs issue position statements about the use of aftermarket and used parts, remanufactured rims, structural repair procedures and airbags. Additionally, many OEMs have formed certified collision repair training programs and networks that call for strict adherence to part usage and repair procedure requirements. Due to the rise in lawsuits that relate to collision repair, it is imperative that the professionals in the field understand what they could be up against.

What does "manslaughter by gross negligence" mean, and how does it pertain to collision repairers? "Manslaughter" is defined as "the unlawful killing of a human being without express or implied malice" and "the crime of killing a person without intending to do so." When something is "gross" in this context, it is "immediately obvious, glaringly noticeable and visible without the aid of a microscope." "Negligence" is defined as "the failure to exercise the care that a reasonably prudent person would exercise in like circumstances."

While the specifics of negligence may vary from one jurisdiction to another, it is generally defined as "failure to exercise a reasonable level of precaution given the circumstances," and may include both acts and omissions. The defendants in such cases are often people carrying out jobs that require special skills or care — such as doctors, teachers, police or prison officers and electricians. Defendants could also be mechanics and collision repairers who fail to meet the standard (set forth by the OEM) that could be expected from a reasonable person of the same profession, and cause death as a result. Concerns over this issue are not exclusive to the American legal system, as the Court of Criminal Appeal (UK) held that "gross negligence manslaughter" involved the following elements:

• The defendant owed a duty to the deceased to take care;
• The defendant breached this duty;
• The breach caused the death of the deceased; and
• The defendant's negligence was gross; that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.

Actus reus, sometimes called the "external element" or "objective element" of a crime, is the Latin term for the "guilty act," which when proven beyond a reasonable doubt in combination with the mens rea ("guilty mind"), produces criminal liability.

Questions to Consider

1. When a customer entrusts you with his or her vehicle and signs the Authorization to Repair, are you not entrusted with the duty to the customer to take care? ("Care" is defined as "painstaking or watchful attention.")

2. By not adhering to the particular vehicle manufacturer's specific repair procedures and parts usage, have you breached this duty? ("Duty" is defined as "obligatory tasks, conduct [and] service functions that arise from one's position, assigned service or business" and "a moral or legal obligation.")

3. Did your unwillingness or business decision to omit, disregard or otherwise breach the OEM's specific procedures or recommendations cause the death or injury of the vehicle owner and/or his or her occupants in a subsequent collision event?

4. After a subsequent collision event, the vehicle you repaired was forensically inspected. As a result, improper repairs, parts usage and practices were discovered. Could this be "gross" negligence? Did your repairs show such a disregard for the life and safety of others that they amount to a crime and deserve punishment?

Not following the OEM and general repair procedures, failing to take pride in your work, forgetting to have quality control checks and lacking knowledge and training could lead to a bad, improper and/or unsafely-repaired vehicle being released from your shop. Not surprisingly, this could very well result in a costly — and even legal — solution. Below are some major reasons why a customer might bring his or her vehicle to another shop to have them "look it over:"

1. Paint finish issues, such as dirt, mismatch, lack of luster (shine) or lack of texture (orange peel);

2. Component misalignment, such as uneven panel gaps, loose components or inoperative components;

3. Steering and drivability issues, such as wandering (pulling) and/or abnormal noises; and

4. Malfunction Indicator Lamps (MILs), such as Supplementary Restraint System (SRS), Tire Pressure Monitoring System (TPMS), Dynamic Stability Control (DSC), Traction Control System (TCS), Anti-Lock Brake System (ABS) or Check Engine.

The above issues are the major reasons why a vehicle may require a PRI/QRI, but let's look at some of the issues discovered when a collision-repaired vehicle is put through those inspections. We will break them down by component area:

1. Suspension

a) Elongated holes. Generally, the strut tower mounting holes are elongated to allow for a greater range of adjustment for attempts to align the suspension due to a misaligned structure.

b) Poorly-rebuilt components, such as CV joints and drive axles.

c) Bent components, such as engine or rear suspension cradles that were pulled or forced into their mounting position due to structural misalignment.

d) Heat-damaged components, such as control arms and engine or rear-suspension cradles that were heated to bend the component into its mounting position, due to a misaligned mounting location.

2. Structural

a) Fiber-reinforced radiator core supports that were repaired utilizing adhesives. Fiber-reinforced core supports should not be repaired, as an alteration in the timing of the SRS deployment could occur.

b) Access windows in upper or lower uni-rails or frame rails. Cutting a hole or window into a component to gain access to its inner areas is an unaccepted practice that should be avoided at all costs. (There is no known OEM or general recommendation to perform this procedure.) Cutting a window causes heat damage, while re-welding the removed portion causes even more heat damage. While this makes that area more brittle, it also makes it weaker. This may cause the area to deform more or faster than intended, and alter the timing of the SRS deployment.

c) Heat applications. Heating structural components actually tempers (makes stronger) the area where heat is applied. Tempering the advanced steels in today's vehicles will have an adverse affect on the components that manage the collision energy. Again, this may cause the area to deform more or faster than intended, and alter the timing of the SRS deployment.

d) Excessive stress relieving. "Stress relieving" is performed by hammering a component to allow the molecules to move back into their proper shape and position. This is required to realign components during straightening, but this process should not cause any additional damage. Excessive stress relieving is generally classified as the process of applying excessive force to straighten a component that, in most cases, should have been replaced.

3. Realignment

a) Improper anchoring. Many vehicle manufacturers prohibit anchoring their vehicles by the rocker panel (pinch weld) flanges. Most of them now require six to 10 anchoring locations, depending on the amount of damage and the substrates utilized in the construction. Vehicle manufacturers such as VW, Audi and Porsche prohibit the anchoring of their vehicle by the rocker panel weld flanges. They utilize weld bonding in the assembly process. Studies have shown that the applied force from the anchoring clamps could destroy the bonding adhesive and alter the strength of the area. Structurally realigning one of these manufacturer's vehicles by anchoring it with the weld flanges is an improper repair and could be considered "gross negligence."

b) Formed areas. Formed areas on the underbody of the vehicle are basically holes in the underbody structural components. Placing a J-hook or T-hook into a formed area could cause the area to fail once force is applied. Damage like this is considered the result of an improper and unacceptable procedure and could be considered "gross negligence."

4. Welding

a) Gas Metal Arc Welding (GMAW) is still widely accepted by the OEMs for component replacement. However, many OEMs are requiring Squeeze-Type Resistance Welders (STRSW) for component replacement. Some OEMs are also requiring rivet bonding only for component replacement. There have been multiple cases during PRIs and QRIs where excessive heat, improper fusion and penetration have been observed from poor GMAW processes. There have also been cases of improper weld fusion, excessive spacing, improper spacing and excessive heat-affected zones from poor STRSW processes. In some recent cases, GMAW or STRSW was utilized on the vehicle when the repair procedure required rivet bonding. For example, BMW requires the quarter panels on their vehicles to be replaced with a rivet-bonding procedure and prohibits GMAW and STRSW, even though the panel was originally attached utilizing the weld-bonding process.

5. Bolt-on Components

a) The use of aftermarket or used parts has become a topic of discussion and controversy in this industry. The courts will generally defer to the OEM's position statements, repair procedures, recommendations and requirements. In some PRI/QRI cases, aftermarket components have been deemed improper and unacceptable.

b) Wheels/rims. Most OEMs have position statements prohibiting the bending, heating, plating and welding of rims, as well as adding or removing materials from these rims. This is for good reason, as the structural integrity of the rim may be altered by the above processes and could lead to a catastrophic failure of the rim and/or a wheel separation. In a recent California case, a dealer, technician and wheel company were charged with gross negligence for selling a vehicle with factory rims that were chromed by an aftermarket company. Two of the main documents used in the case by the plaintiffs were the NHTSA Action Number EA07005 and the Nissan Motor Corp. Service Bulletin WT92-003b/NTB92-123b.

You might think this kind of situation won't happen to you, but have you taken the proper precautions to either avoid a situation such as this or defend yourself if you are named in a lawsuit? Nobody ever plans to fail, but they usually fail to plan.

Direct Repair agreements hold no weight in a court of law, and saying things like "that is all they allowed" or "that is all they paid for" will not stand up. Documentation of recommendations, position statements and repair and replacement procedures from the OEM is all that matters. It is our opinion that situations like the ones discussed in this article will become more prevalent in the next few years. Both Direct Repair and non-Direct Repair shops need to understand the laws within their respective states. We are all entrusted by the general public to repair and restore collision-damaged vehicles to their pre-loss condition safely, by utilizing the recognized and recommended repair procedures, components and approved equipment and acting with due care in a fiduciary capacity. We implore you to consult with your attorney as to your rights and any legal ramifications that could affect you, your employees and your business.

We hope this article has helped you better understand the possible repercussions from your business decision and actions. Feel free to contact us if you have any questions.

Executive Director's Thoughts: If you find yourself in a court of law regarding your repair practices, the question will be, "Did you follow the OEM repair procedure, yes or no?" You're not given the opportunity to explain the "no" in most cases. It is a powerful message that Larry has outlined here, and the recommendations he gives should be addressed within your business. — Jordan Hendler

Sources for Definitions: www.merriam-webster.com; http://web2.westlaw.com; www.west.thomson.com

---

Larry Montanez, CDA is co-owner of P&L Consultants with Peter Pratti Jr. P&L Consultants work with collision repair shops on estimating, production and proper repair procedures. P&L conducts repair workshops on MIG & Resistance Welding, Measuring for Estimating and Advanced Estimating Skills. P&L also conducts investigations for insurers and repair shops for improper repairs, collision reparability and estimating issues. P&L can be reached by contacting Larry at (718) 891-4018, (917) 860-3588 or via email at larrygoju@aol.com.

Jeff Lange, PE is president of Lange Technical Services, Ltd. of Deer Park, New York (www.LangeTech.net). Jeff is a Licensed New York State Professional Engineer who specializes in investigating vehicle and component failures. Lange Technical Services, Ltd. is an investigative engineering firm performing forensic vehicle examinations and analysis for accident reconstruction, products liability and insurance issues. Jeff can be reached at (631) 667-6128 or by email at Jeff.Lange@LangeTech.net.