Early Evidence Preservation is Key to Analyzing the Risk of a Trucking Accident
By: Darren G. Mayers, Esq.
According to the Federal Motor Carrier Safety Administration (“FMCSA”) there are approximately 4,000 deaths and 100,000 injuries from trucking accidents each year. Defending a trucking accident is unlike defending an automobile accident. The trucking industry is highly regulated and determining adherence to the Federal Motor Vehicle Safety Regulations (“FMVSR”) are key to managing the risk of a trucking accident. You must remember that an attorney for a plaintiff has access to a motor carrier’s information maintained by the FMCSA. Much of the motor carrier’s information can be easily accessed on the FMCSA website.
It is important to familiarize yourself with as much of the Federal Motor Carrier Safety Regulations as you can. You can order a full handbook from FMCSA or read them online at www.fmcsa.dot.gov/rules-regulations/rules-regulations.htm. The Federal Law in its entirety can be found at Title 49 of the Federal Code. The most important sections are: Parts 40 and 382 – drug and alcohol use; Parts 383 and 391 – commercial driver’s license standards and driver’s qualifications; Part 387 – insurance requirements; Part 392 – rules of driving; Part 395 hours of service limitations; Part 396 – inspection, repair and maintenance requirements; and Part 397 – hazardous materials.
The first order of business for any attorney defending a trucking accident is evidence preservation. In a best case scenario the law firm is contacted within hours of the accident and the firm has a “Go Team,” which is a team of legal, accident reconstruction, and mechanical experts, that travels to the accident scene to preserve evidence, interview the driver and coordinate with law enforcement.
First, locate and secure the truck. This is important because the truck driver may claim that the truck’s brakes failed, or “my tire blew out.” These scenarios make for a products liability claim or a failure to repair claim. Knowing this information as soon as possible provides the best opportunity to manage such risks. Downloading the truck’s Electronic Control Module (”ECM”) is critical. The plaintiff may claim that the truck was speeding at the time of the incident and having the data from the ECM may prove them wrong. You will also want to secure the plaintiff’s vehicle so it can be inspected. Many of today’s passenger cars also have ECM’s. Gaining access to such information may actually prove that the plaintiff was speeding at the time of the incident.
Inspections are a must. The attorney will want to be involved, but these are set up to help the experts evaluate the incident. Immediate inspection of the scene is critical. Tire marks wash away, debris is picked up. It is even possible that intersections are repaved or repainted. Sometimes you do not get assigned the case until it is too late to do a proper scene inspection. But, if you timely receive the assignment, you and your experts must inspect the scene. Do not forget to determine the weather conditions at the time of the incident. Weather may have played a large factor and may work in your defense of the matter.
You will also want your expert to inspect the plaintiff’s vehicle to determine force of impact and angle of impact to better reconstruct the accident. An inspection of the plaintiff’s vehicle can determine a product defect or a maintenance issue. Always check the driver’s compartment of the plaintiff’s vehicle. You never know what might be left behind.
One of the biggest impacts of federal regulation is on how many records driver’s and motor carriers are required to generate and maintain. These records must be obtained to determine your client’s compliance at the earliest stage possible. You should obtain and analyze the following records which a counsel for plaintiff will undoubtedly ask for: the driver’s telephone records, fax records of the trip, records from on-board computers, photographs of the scene and vehicles, the Traffic Collision Report, a Multidisciplinary Accident Investigation Team (“MAIT”) report, the motor carrier’s internal reports, dispatch communications reports, satellite tracking information, the driver’s file, including his medical evaluation.
You will also want to develop as much information as you can about the subject trip. Federal regulations require truck driver’s to keep detailed logs of how much time they spend driving, off-duty and in the sleeper berth each day. If you have a fatigued driver on your hands, you must determine such information as quickly as possible.
The dispatch records will tell you about the trip and the job. Based on this information you can determine if the subject trip was even possible without violating the FMCSA 10 hour limit. Other critical records to examine are pick-up and delivery records, trip summaries, delivery manifests, driver credit card receipts, fuel receipts, weigh tickets, state entry and departure records, expense sheets. Examination of all of these records will help you evaluate the risk of the claim. A plaintiff’s attorney will also want to examine the Lease Agreements or Rental Agreements to determine if your claimed “owner/operator” is actually working as an employee of the motor carrier. You will also need to obtain information on the tractor-trailer. You should obtain the registration and title for each to determine ownership.
You will also need to find out as much as you can about your client, the motor carrier. You should determine hiring policies and procedures, compensation and bonus practices, employee training, the company mission statement and compliance audits.
While the above is an illustrative list and not an exhaustive list of what must be obtained to evaluate a trucking accident, gathering the above information will put the law firm in a position to properly evaluate the risks of the associated claim in order to effectively manage the incident from the claims stage through litigation. Proper evaluation of the evidence is what puts you in the best position to evaluate the case and resolve the matter as cost effectively as possible.
With summer in full swing and more cars on the highways, now is the time to become familiar with the Federal Motor Carrier Safety Regulations. In the event that your company finds itself in an unfortunate situation or have any questions in general, the knowledgeable lawyers at Bradley & Gmelich LLP are more than happy to help with your trucking industry and auto related needs.