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Investigating Truck Accidents

Investigating Truck Accidents
Investigating Truck Accidents

The following article, Investigating Truck Accidents, was first published in Truck Accident Magazine. Truck Accident Magazine is a free publication for truck accident victims and their families. The investigation of a truck accident should begin immediately in order to properly secure all the evidence necessary to determine how and why it happened, and to identify all the possible parties who are at fault. [1]

In most cases, the truck driver, truck company and their insurers are at the scene within hours, collecting, slanting and even destroying the evidence of what happened while our clients are focused on getting medical treatment and/or grieving. Hiring a truck accident lawyer to investigate the case is one of the last things on their minds. Further complicating things for victims is that the Federal Motor Carrier Safety Regulations (FMCSRs) only require the truck driver and company to maintain many critical records for six months. Even worse, the FMCSRs do not require the retention of some records at all, resulting in the loss or destruction of crucial evidence if it is not preserved before the driver or company has an opportunity to destroy it.

If you or someone you know is a victim of a trucking accident, it is important that you hire a truck accident lawyer as soon after the crash as possible.2 Once you have hired a qualified truck accident lawyer, it is imperative that he or she immediately begin an extensive investigation into your truck crash, which includes the following:

(1) An experienced truck accident attorney should perform an immediate and thorough interview of his or her new client and should gather as much information and as many details as possible, such as: who was present at the scene, the names of the truck companies involved, the location of the accident, where the vehicles are being stored, and the identities and contact information for anyone the victim or the victim’s family has been contacted by and/or talked to since the collision.

(2) Within 24 hours of being hired, a truck accident attorney “must” assemble their trucking accident emergency investigative response team at the scene of the accident. This team should include a truck accident investigator, a truck accident reconstruction specialist and/or a truck driving safety expert.

The emergency investigative response team should photograph the roadway and any signs or markings, search for debris, take measurements and interview witnesses including the police who were at the scene, tow truck drivers, EMT and/or Fire Department personnel and of course, anyone who witnessed the accident. They should also attempt to contact the truck driver directly, as many will speak freely, thinking they are not at fault.

Of great importance is the inspection of the truck and the cab. Such an inspection can yield powerful evidence of driver misconduct including drugs, medical pills, alcohol, radar detectors, duplicate logbooks, receipts with date and time stamps and various energizers and uppers to help the driver stay awake. The investigation of the truck will include the identification, preservation and/or downloading of information from the electronic control module (ECM), Electronic Data Records (EDRs) and Electronic on Board Recorders (EOBRs). These electronic devices record data such as vehicle speed, braking times and hours driven, which are extremely helpful in determining what occurred. The investigators or expert should only download the ECM data recorder prior to getting a court order to do so if you feel the evidence is at risk for being destroyed or lost. Otherwise you may risk a spoliation of evidence allegation.

The trucking accident emergency investigation team should obtain all reports from investigating officers’ files, including the Commercial Motor Vehicle (CMV) Inspection Report, the Collision Report, the Supplemental Collision Reports and/or the photographs and the surveillance video that may have been available showing footage of the scene.

(3) Next, the investigation should include obtaining the licensing, registration, insurance, company names, slogans, logos and contact information of the truck driver, trucking company and anyone who had ownership or responsibility for the truck, trailer, equipment or cargo. A thorough investigation will include a full and in-depth search on all of the following websites:

Also important is obtaining any websites associated with the motor carrier and/or driver involved. An investigator or attorney should print every page of each relevant website as soon as possible. It is not safe to assume that the content on the website will remain the same. Programs such as HTTrack Website Copier (www.httrack.com) and SurfOffline (www.surfoffline.com) allow you to save an entire website to your computer, allowing you to preserve its content.

The trucking accident emergency investigation team should also perform a full background check of the Motor Vehicle Record of the truck driver involved, which can also provide insight into histories of accidents and violations.

(4) A qualified truck accident attorney should immediately prepare and serve a preservation letter on the truck driver and company, as well as their insurers if known. In the letter, the truck attorney should list every piece of evidence that could possibly be out there, including: Shipping documents, contracts, truck driver instructions, driver’s daily logs, rates, payments, prior shipping documents, future shipping documents, damaged goods, replacement motor carrier, communications, motor carrier’s and driver’s safety and fitness, insurance, tracking data, other communications, investigation communications, driver’s qualification file, driver investigation history file, longer combination vehicle (LCV) driver-instructor qualification files, certification of the driver’s qualifications, personnel file, vehicle inspection reports, maintenance records, dispatch records, trip records, violation records, accident register, drug and alcohol records, complaints, reports, settlement sheets, cargo pickup or delivery orders, accounting records, electronic on-board data and electronically stored information.

(5) Once the investigation is complete, the experienced truck accident lawyer should immediately file the legal complaint in court and at the same time file an emergency motion with the judge assigned to the case to preserve all the evidence including the truck, trailer, client’s vehicle, and all the information described above in the preservation letter.

(6) Finally, your trucking lawyer should send out a Freedom of Information Act (FOIA) request letter to the Federal Motor Carrier Safety Administration (FMCSA) (instructions can be found at www.fmcsa.dot.gov/foia/foia-request.htm). The lawyer should request all of the truck driver’s and company’s history leading up to the crash, including a signed Form OP-1 and MCS-150 report, both of which prove the driver and company acknowledge being in compliance with the FMCSRs and are crucial to a successful deposition. The attorney should also request records on specific motor carriers or on specific motor carrier files; copies of final orders of the agency which may include negotiated settlement agreements, notices of claim and out-of-service orders; final opinions and orders made in the adjudication of cases and issued by the FMCSA; copies of the initial notice of applicable USDOT, FMCSRs and Hazardous Material Regulations sent to the motor carrier by agencies within the USDOT; copies of all correspondence and records between the trucking company and the USDOT, FMCSA and other agencies; driver and vehicle inspection reports; case reports; compliance reviews; enforcement reports; and other related documents concerning the trucking company’s past and present state of compliance with all applicable regulations. It is also important to request that the FMCSA check for records at their regional service centers and at offices for each state.

Because of the mountain of evidence necessary for winning and proving punitive damages in a trucking case, a proper investigation is of the highest importance. It is often the difference between winning and losing a truck case.

1. For more information on the importance of determining “why” it happened, see Dan Ramsdell’s excellent article on page 45 of the Winter 2012 publication of The Lawyer’s Logbook, titled “Interstate Trucking Litigation: The Importance of Discovering ‘Why’ In The Deposition of the Professional Truck Driver”

2. For information on hiring the right lawyer for your truck accident case, see Joseph A. Fried, Hiring the Right Lawyer for Your Truck Accident Case, Truck Accident Mag. (Nov. 2012), http://www.truckaccidentmagazine.com/pub/tam-01-01/#/18.

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