In the trucking business, accidents can and do happen, even when a trucking company does everything right. Since accidents happen when you least expect them, you must always be prepared to respond to them. By launching an immediate, effective response and a thorough investigation, a trucking company can limit its exposure and protect itself and the driver in the event that the accident leads to criminal charges or a lawsuit.
Have a response plan in place
Your company should have a 24/7 accident response plan in place. Who is the contact person for the company when an accident takes place, and who will be deployed to handle the response? Depending on the accident, multiple matters may have to be handled simultaneously. Consider who be deployed to the scene to perform an investigation. Who will be working with the driver, and, if there are other crash victims, who will be handling them? Who is securing the cargo, and handling the environmental piece? Who is handling press and communications? All of these matters should be considered when developing your accident response plan.
Initial response and data gathering
Data gathering begins when the initial call comes in from the driver or police officials to your dispatcher or claims representative. The person receiving the call should record the available details, including injuries or fatalities, location and type of roadway, number of vehicles involved, property damage, cargo information, roadway conditions, oral statements by the driver, and which law enforcement agency or agencies that are investigating the accident.
An attorney or field adjuster should then be contacted to perform a scene investigation and to collect evidence. Names and addresses of injured people and/or fatalities, witnesses, investigating officers and law enforcement, the wrecker service and its employees, the ambulance service, and any other parties present at the scene should be collected. The attorney or field adjuster should also interview the investigating officers and Department of Transportation (DOT) vehicle inspection officers and ascertain whether citations are issued to your driver or other drivers involved.
Protecting the driver
Keep in mind that by the time the driver is contacted by your attorney or adjuster, he has likely already discussed the incident and/or given a written statement to police and possibly others. Field statements are sometimes incoherent, distorted by guilt or confusion and rife with speculations. But these statements are often relied upon versus later ones, because they are made soonest after the accident. Drivers should be advised to only give statements to law enforcement. If the driver is unsure who is asking for the statement, he should defer to the adjuster or attorney.
The attorney and /or trucking company should coordinate the alcohol and drug testing required under federal trucking company regulations. If criminal charges are contemplated, the attorney must ensure the driver’s rights are not violated, retain criminal counsel if possible and consult with the criminal counsel to see if pleading the fifth amendment is advisable.
The attorney or company should also determine the content of any statements the driver gave to the investigating authorities and advise the driver what to expect if criminal charges are filed. Where applicable, grief counseling and retraining should be given to the driver before he returns to service.
Documents tell a story about what happened and need to be preserved. Any documents that are protected by privilege may serve to guide the trucking company and its attorneys in the litigation phase; conversely, the trucking company could be held accountable if it fails to secure non-privileged documents. Data from computer devices, such as the vehicle’s “black box” and GPS, must be kept safe. Some black boxes will reset if the truck is restarted; in such cases, the truck should be towed rather than driven off the road. In any case, the tractor’s movements after the accident should be documented, and the tractor should be secured until the ECM data can be downloaded and copied, with a hard copy produced as well. Consider hiring an accident reconstructionist to assist with document preservation.
Gather evidence generated by authorities
It’s imperative that you obtain a copy of the police report and other documents related to the investigation. These include any DOT vehicle inspection reports, to determine if a vehicle played a role in the accident; citations issued by the DOT vehicle inspection or citations issued to the driver; preliminary, final and supplemental accident reports; photos/videos taken by the authorities or by any news agencies; accident reconstruction files generated by authorities; and weather reports.
Analyze records for noncompliance or other issues
To determine the extent of your exposure, check company records to ensure compliance with the Federal Motor Safety Carrier Regulations (FMSCR) and assess the driver’s experience or training records for any possible negligent hiring or training issues. Determine any weaknesses in your policies and procedures that could have led to negligent hiring and retention, training issues, hours of service violations or other issues. Review your logs for the 30 days preceding the accident to analyze the driver’s hours of service, to determine if they are in compliance with the FMSCR and if fatigue may have been an issue. Check for inconsistencies with mileage noted in the logs. Determine if the driver followed all company policies and procedures prior to and immediately following the accident, and whether the cargo was loaded properly. Review and compare statements made by the driver, witnesses, authorities and others for inconsistencies, weaknesses and parallels. Review dispatch history of the driver to determine familiarity with the route, and review the conditions of the road and the other drivers involved. Finally, ensure the vehicle’s service and maintenance records are up to date.
Remember a quality defense is dependent on the quality of the response and investigation.
Representing trucking and transportation companies has been a significant part of Sheehy, Ware, Pappas & Grubbs’ practice for more than 20 years. If you would like to speak to a trucking lawyer about your transportation-related litigation matter, contact us.