HUNTSVILLE AND DECATUR TRUCK ACCIDENT ATTORNEYS
Ferguson & Ferguson
Attorneys at Law
An experienced Huntsville trucking accident lawyer will tell you that when dealing with trucking accidents, federal regulations require that certain essential evidence only be maintained for a limited amount of time. For instance, the truck driver’s log may be destroyed after six months if a trucking accident attorney does not obtain a court order or take other action immediately following the trucking accident. Federal regulations also require over the road trucks to carry various levels of insurance coverage, depending on the nature of materials hauled. Many times, trucking, hauling, and leasing companies may argue over which insurance company is responsible for compensating the victim trucking accidents. Current federal regulations protect the innocent party by helping to ensure coverage if trucking accidents occur.
After a trucking accident has turned your world upside down, how do you find out exactly what happened and why? Law enforcement will investigate the matter, interview witnesses, and file a report, but a trucking accident investigation conducted by the authorities may not reflect an entirely accurate picture of what occurred. Sometimes the police miss important pieces of evidence or fail to interview eyewitnesses that can prove essential to your case. Our office provides legal representation and trucking accident investigations services to victims of trucking accidents throughout the country.
The truck company will rarely if never pay your medical bills immediately after trucking accidents. However your own insurance will often contain medical payment provisions to pay for bills ranging from funeral costs to x-rays. Many people are reluctant to involve their own insurance company in any medical claims process. However, most insurance policies require you to notify your insurance company of trucking accidents in which you have been involved.
It is usually in your best interest not to sign a medical release or authorization and not to give a statement to the trucking company or any insurance company before contacting a trucking accidents lawyer.
After a serious collision, the trucking company’s claims adjuster begins to protect the trucking company’s interests immediately. An investigator will begin to collect evidence in order to defend or minimize the claim. The trucking company may also attempt to steer you away from a trucking accident lawyer, because they know that if you have a trucking accident attorney, you are statistically likely to receive a greater settlement. The trucking company takes immediate measures to actively insure that they are protected against your claim as much as possible. What have you done to protect yourself and your family as the result of permanent disability, fatal trucking accidents, or other tragedy?
Don’t rely on the police to get it right- act fast and extensively investigate the circumstances of your accident. Whether you have a serious injury or wrongful death claim, we ensure that no stone is left unturned by thoroughly:
- Interviewing witnesses, police officers, tow truck drivers, emergency medical personnel, doctors and nurses
- Examining police reports, toxicology reports, doctor’s reports of injuries, and autopsy reports
- Preserving the evidence by making sure vehicles and other physical evidence are inspected, cataloged and photographed as soon after the accident as possible. It’s also extremely important to document the scene of the crash, the time and day of the week it took place, as well as any special conditions that may have existed (construction, poor pavement, inadequate roadway signs).
- Gathering black box or ECM (Engine Control Module) information from the semi truck to assess exactly what happened in the minutes and seconds before and after the crash.
- Obtaining any log books or GPS (global positioning system) data to find out where the driver was in the hours and days before the accident. This information may reveal that the truck driver illegally spent too many hours on the road, which may have resulted in the accident.
The outcome of a detailed investigation can reveal the cause(s) of your accident and who the responsible parties are.
In preparing to negotiate your claim and/or go to trial, we routinely:
- Hire private investigators to investigate all angles of your case. We want to make sure your case is rock solid and that all possible evidence has been uncovered.
- Engage expert witnesses such as accident reconstruction specialists and medical experts to ensure that your case is presented with all of the facts.
Gathering evidence in cases involving commercial trucks is a very demanding task, since the trucking industry has so many special and unique regulations, documents, operations, technologies and driver demands.
It is the application of this special knowledge that separates a trial lawyer who attempts to handle a truck case as if it were just another car wreck case from one who recognizes that the additional factors can lead to more certain proof of liability and a significantly higher recovery. This article will provide a brief summary of the steps that you, the plaintiff’s lawyer, should take to discover the evidence needed to win at trial.
Discovery in a trucking case should ideally start well before the complaint is filed. The two largest potential sources of information during the initial phase of the case are the tractor-trailer itself and the investigating police officer. In the situation where you are retained soon after the wreck, time is certainly of the essence regarding the inspection of the truck and trailer. Given the potentially valuable information that is available from the commercial vehicle, you should try to gain access to the wrecked tractor-trailer before tracking down other likely sources of information. Locating the tractor and trailer often takes persistence and a significant amount of digging, especially when the vehicles are removed to the motor carrier’s home state. Sometimes, the tractor and trailer are often owned by different entities and may be removed to different locations.
The amount of damage to the tractor-trailer should have no bearing on your decision regarding whether or not to inspect. While some lawyers prefer not to be involved with any aspect of the inspection, allowing their private investigator and accident reconstruction expert to conduct the entire inspection, this author feels that the lawyer should not only attend the inspections but should also participate in them. You should be careful, however, not to become so involved in the inspection as to make yourself a witness, potentially subjecting yourself to a defense motion for disqualification and a malpractice claim. During an inspection, you should act as a supervisor, making sure that all of the bases are covered.
A video and still camera should be used to thoroughly document all visible damage to the truck and trailer from all angles. You should take distance photos so that the jury can appreciate the overall perspective of the entire vehicle. The cameras should also be used as your investigator combs through the interior portions of the tractor and trailer. The investigator should prepare a written list of the items identified during the inspection. Each item of import should be carefully described on the list, with its location within the vehicle noted. All areas within the truck should be meticulously examined, including all storage compartments and the sleeper berth. Careful documentation and preservation of evidence found during a pre-suit inspection is critical to avoid defense claims of spoliation.
A checklist such as the one in Appendix “A” helps you avoid overlooking important items during a tractor-trailer inspection. After surveying and documenting the damage to and contents of the big rig, you should direct your accident reconstructionist or other qualified expert to retrieve and/or download any electronic data that is available.
Today, a number of electronic devices and systems exist and have been put into use by many motor carriers. All of these devices create electronic data, some of which is stored. Among the various types of devices that are currently in use are the following:
- Electronic engine control modules;
- Satellite tracking systems;
- Trip recorders; and
- Collision avoidance and warning systems.
- Electronic Control Modules. Since the mid 1990s, most manufacturers of large trucks have equipped their engines with an electronic control module. There are several different types of devices used, and they vary among manufacturers; however, most of them record the vehicle’s speed, engine speed, distance traveled, fuel consumption and mileage, hard braking, idle time, oil pressure, and engine temperature. These devices generally record information from 30 seconds to 5 minutes before the time of an event and for some time after an event. All recorded data is overwritten by the computer in a continuing loop, much like an airplane’s black box. Gaining access to the data requires both computer hardware, in the form of hand-held access units, custom connector ports, and software that is usually particular to the manufacturer.[i]
- Satellite Tracking Systems. These tracking systems operate via on-board systems that both collect and transmit data about the truck and its operations. Typically, the information provided includes global positioning (GPS), land speed, vehicle performance parameters (engine speed, temperature, tire and oil pressure, braking and “panic stops,” among others), hours of service and operation, and whether the vehicle has deviated from its route. The storage abilities of these systems vary by manufacturer design and user requirements. The data is generally stored on the server of the service provider (such as Qualcomm), as opposed to on a system maintained by the motor carrier.[ii]
- Trip Recorders. Most major motor carriers equip their trucks with trip recorders. These devices have been greatly improved over the years from the initially used analog tachographs. Trip recorders are similar to and record much of the same information as electronic control modules and satellite tracking systems. The parameters of trip recorders also vary greatly depending on the manufacturer and the user.[iii]
- Collision Avoidance and Warning Systems. This device is the result of a commercial application of existing technology. Radar, sonar and ultrasound, or combinations of them can be used to provide advance warnings to the truck driver of obstructions or potential hazards. Some of these systems use audio and visual warnings. The information recorded by these devices is great to use in cases involving a truck driver who has fallen sleep at the wheel!
All of the above devices can provide valuable information about the use and
operation of the truck prior to, during and after a crash. “But plaintiff’s lawyers must be careful not to overestimate the extent to which this technology can help or hurt their cases.” [iv] Traditional expert reconstruction of a wreck from crush data and other evidence can still be used to attack the electronic data by showing its inaccuracy or limitations in particular cases.[v]
Since the above devices are rather sophisticated, you should make sure that the expert that is used to retrieve the data has experience and competence in doing so. Otherwise, if the expert mistakenly erases the data, then not only will your client’s case be compromised, but you may also be named as a defendant in the spoliation case. After thoroughly inspecting the tractor and trailer, you should contact the next most valuable source of pre-suit information, the law enforcement investigator.
The investigating law enforcement officer is charged with determining how the wreck happened as well as documenting the location of forensic evidence, such as skid marks and crash debris. Generally, if the Highway Patrol conducts the investigation of a truck wreck, the investigating officer obtains written statements from the individuals involved in the wreck as well as any witnesses. If the wreck involves a fatality, or if the trooper suspects that the driver of the tractor-trailer is under the influence of some intoxicating substance, the trooper usually take a recorded statement. The attached “Appendix B” is a checklist of most of the items that you can obtain from the investigating officer.
In many states, including Alabama, the state police now have a specific department dedicated to accident reconstruction. All of the reconstruction officers are equipped with still photo cameras, and they have access to a video camera if they feel it is needed. These officers, in their discretion, also have the ability to request that aerial photographs of the scene be taken by the Highway Patrol’s Aviation Unit.[vi] If you are willing to pay for the cost of reproducing the photographs, the Highway Patrol is generally more than willing to provide you with copies.
Other individuals that can also be excellent sources of information are the tow truck driver, the vehicle storage facility operator, and the EMS personnel. All of these people may have come in contact with the truck driver, and they may have heard or seen the driver say or do something that could help your case. You should also inquire of the National Transportation Safety Board (NTSB) as to whether they have conducted an investigation of the wreck. If an NTSB investigation was done, then you should contact the investigator and obtain a copy of his report, including his conclusions.
Once the complaint is filed, you must utilize her specialized knowledge of the ICC safety rules promulgated at 49 C.F.R. 383, 390-399 (the bible of the trucking industry, known as the Federal Motor Carrier Safety Regulations (FMCSR) issued by the Federal Highway Administration).[vii] These Regulations constitute a candy store shopping list for the plaintiff’s lawyer:
- duty to investigate driver’s prior employment
- duty to investigate driver’s prior driving record
- driver must pass a driving test
- driver must pass written test
- driver required to know safety regulations
- owner required to know safety regulations
- lessee required to know safety regulations
- duty to inspect equipment
- required minimum braking standards
- required maximum of driver’s work hours
- requirement that driver’s work hours be accurately recorded in logs
- owner must retain logs for a minimum of 6 months
- owner/lessee must assure accuracy of driver’s daily logs
- illegal for driver to falsify logs
- illegal for company to accept falsified logs
- liability for owner/lessee to not discover falsified logs
- owner/lessee required to make driver comply with all safety regulations
- public liability minimum limits of $750,000.00 if carrying commodities
- public liability minimum limits of $1,000,000.00 if carrying hazardous material
- public liability minimum limits of $5,000,000.00 if carrying explosives or poison gas
Written discovery should focus on the owner/lessee’s and driver’s failures to comply with the FMCSR. This author is yet to handle a case where there have not been numerous violations by both the company/owner and driver. In drafting your written discovery, you should reference the specific sections of the FMCSR that apply in your case. The easiest way to do this is to simply have a copy of the regulations at your side while drafting your interrogatories and requests for production. All of the topic areas listed above should be thoroughly explored in multiple sets of written discovery. The J.J. Keller & Associates, Inc. (www.jjkeller.com) publishing company produces a number of helpful pocket books dealing with the various sections of the FMCSR.
After obtaining copies of all of the pertinent documents from the truck company, you should be armed with a wide variety of ammunition to use during the defendants’ depositions. Depending on the facts and issues in your particular case, you should always consider taking the video depositions of the following persons from the truck company:
- safety director
- insurance person(s)
- maintenance technicians and supervisor
- each company representative that visited the scene
In the final analysis, once you know and understand the importance of gathering
all of the potentially discoverable information in a truck case, and actually take the time and effort to obtain that information, you will succeed in obtaining a favorable result for your client.
- Inspect the Tractor and Trailer
- Download Trip Recorder Info (computer records speed, braking, etc.)
- Tachometer Records
- Engine Governor Records
- Integrated Mobile Communications System Records (satellite tracking)
- Photo/Video Exterior Damage (Tractor)
- Photo/Video Interior Damage (Tractor)
- Inventory Interior Items (Tractor)
- Driver’s Daily Logs
- Driver’s Inspection Reports
- Insurance Documents
- Operating Contracts & Permits
- Trip Bills of Lading
- Trip Delivery Receipts
- Trip Invoices
- Trip Dispatch Records
- FMCSR Pocket Handbook
- Credit Card Receipts
- Cell Phone
- Fax Machine
- Citizens Band Radio (CB)
- Radar Detector
- Drugs (amphetamines, No Doze, etc.)
- Drug Paraphernalia
- Pill Bottles
- Prescription Medicine
- Photo/Video Exterior Damage (Trailer)
- Photo/Video Interior Damage (Trailer)
- Inventory Interior Items (Trailer)
LAW ENFORCEMENT INVESTIGATION:
Obtain copies of the following from Investigating Officer:
- Recorded Statement from Officer
- Scene Photos
- Scene Videos
- Field Notes
- Law Enforcement Accident Reconstruction Report
- Driver/Witness Written Statements
- Driver/Witness Recorded Statements
- Driver’s License Record
- Collision Report(s)
- Traffic Homicide Report (depending on the state)
- List of Property Taken into Custody
- Arrest / Citation Information
- Driver’s Vehicle Inspection Reports
- Driver’s Daily Log Sheets
- DA’s Office Involvement
[i] See generally Paul Menig & Cary Coverdill, Transportation Recorders in Commercial Motor Vehicles (visited 12-12-03) (for a thorough description of the types of on-board systems available and in use, as well as a reference to other resources)
[iii] Menig & Coverdill, supra at note 1.
[iv] See Dennis Donnelly, Black Box Technology in the Courtroom, TRIAL, April 2002, at 41.
[vi] Sgt. Steve Lockhart, North Carolina Highway Patrol Reconstruction Department, Raleigh, North Carolina.
[vii] See Branton & Lovett, Automobiles, Volume 2, Trial Lawyer Series, 10-5.