Truck Accidents Are Different
Above all else, the most critical thing to remember in truck accident litigation is a truck accident claim should not be treated like a typical car accident case. The reality is that these types of personal injury cases are very different, so they require a different strategy from the outset. Failure to understand the unique considerations of a truck accident case can have disastrous consequences. In sum, the main differences that need to be considered in a truck accident case arise from two specific facts:
- The trucking logistics industry is regulated by a variety of complex Federal laws and regulations; and
- Insurance coverage is often significant, but requires a certain skill to understand the potential layers of coverage.
The Federal Motor Vehicle Safety Regulations (Abbreviated as FMSVR), will almost certainly impact every aspect of a truck accident litigation case as well. These regulations will impact everything from proving negligence and liability to preserving evidence for trial. It’s also important to remember that these regulations require all trucking companies to maintain significant insurance policy limits – but you need your truck accident lawyer to know where to look to maximize effectiveness.
Preserving Evidence in a Truck Accident Case
Your truck accident case is only as strong as your ability to prove that the truck driver was negligent in causing your injuries. Due to unique factors involving the trucking industry, federal regulations and technological advancements, a typical trucking accident case will present significantly more evidence than a typical car accident claim. In the hands of a skilled truck accident lawyer, this evidence can be vital to proving liability, finding additional defendants and insurance coverage, and defending the claim against arguments of comparative or contributory negligence. While this evidence is there in almost every case, a good truck accident attorney knows that in order to obtain it, you must first preserve it. This should inform the strategy from the outset of the case.
The first order of business for your personal injury lawyer will be to ensure the preservation of any and all evidence involved in the truck accident. The earlier you meet with a truck accident attorney, the faster they are capable of beginning this sometimes arduous process. A skilled truck accident attorney should always do three things once they has accepted a truck accident case:
- Send a letter of preservation. Your truck accident lawyer should send this out immediately, and send it to every potential Defendant that may have vital evidence to your case. Pursuant to 49 C.F.R. §395.8, requires that trucking companies maintain certain evidence for a period of 6 months. However, these regulations may not protect everything, and can be used by trucking companies to justify the destruction of evidence after this period of time in the absence of a letter of preservation. A skilled truck accident attorney knows that this letter needs to notify the recipient of their obligation to preserve evidence, and to be specific about just what evidence is being sought. Ambiguity in this letter will only serve to complicate the process of gathering evidence and can provide the trucking company with cover. In the event a trucking company destroys evidence after receiving this letter, you should speak to your truck accident Attorney about your right to bring a spoliation claim.
- Locate and Secure any Trucks Involved. Due to the severity of most truck accidents, it is common for insurance companies to descend on the scene of the accident almost immediately. They will take the opportunity to examine the semi-truck involved and move and secure it. The fact is that, no matter how quickly you get to a truck accident lawyer, you are already somewhat disadvantaged in this regard. However, a good truck accident attorney knows that there are ways to level this situation. At the outset of representation, your truck accident lawyer should immediately move to locate and secure the truck – and take precautions to ensure that it is not manipulated or tampered with. Also remember that their may be a technological device referred to as a “black box” that can be vital to your claim – but only if properly preserved and protected.
- Locate and Secure the Plaintiff’s Vehicle. The vehicle that you were driving contains a tremendous amount of vital information. Whether it is the marking on the body of the car, or the tire tread wear, in the hands of a skilled accident reconstructionist, preservation of the car you were driving can be the key to success in a truck accident case.
Searching and Securing Evidence in a Truck Accident Case
In a truck accident case, half of the battle is knowing where to look for evidence. Evidence in any case is important, but this is especially important in truck accident litigation. In general, a good personal injury lawyer should have a familiarity with the specific regulations and laws contained in the Code of Federal Regulations, which will inform your lawyer’s strategy on evidence gathering. Some particularly important ones are:
|42 C.F.R. 382 42||Controlled Substances and Alcohol Use and Testing|
|42 C.F.R. 383||Commercial Driver’s License Standards, Requirements and Penalties|
|42 C.F.R. 387||Trucking Insurance Requirements|
|42 C.F.R. 395||Hours of Service Limitations and Regulations|
|42 C.F.R. 396||Inspection, Repair and Maintenance Obligations|
|42 C.F.R. 397||Hazardous Materials|
In truck accident litigation – inspection of the scene of the truck accident is crucial. Your truck accident lawyer should be involved in this inspection, but the real focus should be on your expert witnesses. The earlier you and your lawyer can involve experts to review the evidence, the better. When investigating the scene, the key is to determine speed. Remember that the scene of the accident is exposed to the elements, so it will change rapidly. Tire marks will wash away, debris will be cleaned up and in some cases, the road may even be repaved. This is why you should speak to a personal injury lawyer as soon as possible after a truck accident so that your attorney can begin the process of inspection immediately. It is also useful to look into the weather conditions that were present on the date and time of the truck accident, as it will affect the perspective of the scene.
You will similarly want your expert to review the vehicles involved, as only focusing on the scene will lead to an incomplete picture of the truck accident. An expert reviewing the vehicles should be able to opine on the force of impact, as well as the angle of impact. These factors are critical to determining speed and liability. An experienced truck accident lawyer will also understand the importance of assessing potential maintenance issues with the truck involved. This can lead to a finding that a Federal Safety Standard was breached, which will assist your lawyer in successfully winning your truck accident case. For example, Federal Law requires certain reflective gear be maintained on the truck which could have prevented the truck accident at issue. The small details matter so much in complex truck accident litigation.
Searching and Securing Evidence in a Truck Accident Case
As with many aspects of our digital worlds, technology is rapidly evolving and developing. While many cars and trucks on American roads do not have recording or tracking capabilities, this technology is increasingly common in semi trucks and consumer vehicles. It’s important to remember that some semi-trucks may be outfitted with multiple recording devices. In the hands of a skilled truck accident attorney, this can be mined and interpreted to win your truck accident case. This is particularly true in instances where a large trucking or logistics company is involved – but is increasingly common in smaller companies as well as the technology evolved and proliferates. However, no matter the size of the company at issue, your lawyer should take pains to ensure that the initial preservation letter demands preservation in a reasonably specific way.
In general, this electronic data is stored in one of two places:
- Electronic Control Module (ECM); and
- The Event Data Recorder (EDR)
Many times, you will hear these devices interchangeably referred to as “black boxes”, but understanding their unique characteristics is important to success in any truck accident case. Many times, the nature of these devices will require an expert to obtain and interpret the data. As to be expected, the most important information from these devices is the data surrounding the time of the crash. This data will be classified in one of two ways – a “hard brake” event or a “last stop” event. A hard brake event occurs when the truck driver applies the brake pressure in such a way that indicates an emergency maneuver. A last stop recording, by contrast, simply records a fixed period of time before the truck comes to a complete stop. Because of this, it is incredibly important that the truck is not operated after the truck accident, as this will greatly affect the “last stop” window of time. In general, these technological features can help an expert determine the speed prior to impact, the brake actuation, information about the clutch, the throttle position at impact and much more. It’s also important to remember that trucks are not the only vehicles with “black boxes.” Increasingly, consumer vehicles are equipped with this technology. Many times, trucking companies will try to point the finger at the injured victim – claiming they were speeding or something of the sort. The data recorder in your car can provide crucial evidence to refute this.
GPS tracking is another valuable and prevalent technology in many trucks today. Trucking companies often want to be able to track drivers, and drivers increasingly rely on GPS data for navigation. This information may be housed with the trucking company itself, the trucks online navigation system or with a third party satellite tracking company. In the hands of a skilled truck accident litigator, this information can provide a near error proof view of where the truck was over the last hours, days or week. Experienced personal injury lawyers know to match this up with log books of the driver to see whether accurate records were being kept. It can also help your lawyer determine if the trucking company was over working it’s driver, or otherwise in violation of Federal Regulations governing the trucking industry.
Federal Regulations and the Paper Trail
One of the unique aspects of Federal Law surrounding the trucking industry is the multitude of requirements for comprehensive documentation. If used correctly, this information can provide critical evidence to prove liability. In general, there are 5 broad categories your truck accident lawyer should focus on:
- The Crash; and
- The Job; and
- The Truck; and
- The Driver; and
- The Carrier
While there is much more to consider in this context, here are some considerations for information you should seek after being involved in a truck accident
- Telephone Records. Cell records can show if the Defendant driver was on the phone at the time of the incident.
- Any Fax Transmission Regarding the Trip. Some companies will communicate via fax regarding shipments and logistics.
- Records from On-Board Computers. The company may have a set of data that was accidentally erased if the truck was operated after the accident.
- Photographs or Videos from the Scene. Since the Defendant is often on scene first, they may have images and video taken closer to the truck accident. Also remember that, if a fatality is involved, the State Trooper will likely have comprehensive photographs.
- The Accident or Incident Report(s). This is often generated by the responding law enforcement officers, but sometimes the company themselves will generate an incident report internally. Obtaining this can give you an early glimpse into any defense strategy.
- Disciplinary Records. You will want to see if the driver has similar issues of safety in the past. Showing that the trucking company had notice of a driver’s dangerous characteristics can be extremely powerful.
- Weigh Tickets. Trucks on America’s roads are required to routinely submit to weighings. This information can be leveraged to prove overloading in some circumstances.
- Lease or Rental Contracts. These documents can help your lawyer investigate additional defendants or pools of insurance coverage.
Finding The Right Defendants in a Truck Accident Case
Most lawyers understand how to use evidence to prove liability, but truck accidents present a number of very unique and complex considerations from a general car wreck. To start, in a typical truck accident, there are often a number of defendants beyond the driver and employer. Anytime we handle a truck accident case, we take pains to exercise constant diligence into prospective Defendants. This process requires extreme attention to detail, vigilance and knowledge.
At its most basic, the reason we do this is to find as much insurance coverage as possible to ensure our clients receive maximum compensation. Most lawyers realize that once a lawsuit is filed, they can gain valuable insurance information. However, experienced truck accident lawyers know that there are some ways to obtain this information prior to filing a lawsuit. By using the Federal Motor Carrier Safety Administrations’ website, you can gain valuable information before a lawsuit is even filed.
Minimum Insurance Requirements in Truck Accident Cases
42 C.F.R. §387.9 governs the minimum levels of financial responsibility for trucking companies and their drivers. In general, the limits of liability coverage for trucks on America’s roads are as follows:
|Type of Carriage||Commodity Transported||Minimum Insurance Limit|
|For-hire (In interstate or foreign commerce, with a gross vehicle weight rating of 10,001 or more pounds) ||Any non-hazardous property ||$750,000|
|For-hire and Private (In interstate, foreign, or intrastate commerce, with a gross vehicle weight rating of 10,001 or more pounds)||Any hazardous substance, as defined by 49 C.F.R. §171.8, in excess of 3,500 gallons||$5,000,000|
|For-hire and Private (In interstate or foreign commerce, in any quantity; or in intrastate commerce, in bulk only; with a gross vehicle weight rating of 10,001 or more pounds)||Oil listed in 49 CFR 172.101; hazardous waste, hazardous materials, and hazardous substances defined in 49 CFR 171.8 and listed in 49 CFR 172.101, but not mentioned in (2) above or (4) below||$1,000,000|
|For-hire and Private (In interstate or foreign commerce, in any quantity; or in intrastate commerce, in bulk only; with a gross vehicle weight rating of 10,001 or more pounds)||Any quantity of Division 1.1, 1.2, or 1.3 material; any quantity of a Division 2.3, Hazard Zone A, or Division 6.1, Packing Group I, Hazard Zone A material; or highway route controlled quantities of a Class 7 material as defined in 49 CFR 173.403||$5,000,000|
Winning a Truck Accident Case
Strategy can be difficult to talk about in the abstract, as truck accidents cases are very fact specific and the unique circumstances of the case often informs the strategy. However, as truck accident lawyers, we understand some general points that help win truck accident cases.
- Assess the Parties. If you have been injured in a truck accident, you can be sure that the jury will be assessing you at trial. Thus, an objective and fair assessment of your demeanor is vital. Also, it’s important to size up the defendants, including the truck driver. Since this is the person the jury needs to find fault with, it is important to consider how the jury may feel about him or her and evaluate that accordingly.
- Use Voir Dire to Assess the Jury Pool. Voir Dire is a process in which lawyers ask the prospective jurors questions to determine if they have any experiences or feelings that will bias their independent judgment. Obviously, in a jury case involving a truck accident – it is wise to avoid jurors that have family members that are truck drivers. However, some more nuanced considerations must be considered as well during this question and answer process. A skilled trial Attorney knows how to weave their case into this process elegantly and subtly.
- Use the Code of Federal Regulations and Traffic Laws to Your Advantage.
In order for a Plaintiff to win their truck accident case, they must be able to show that the truck driver was negligent. This requires a showing that the truck driver violated a statute, regulation or duty of care, and this proximately caused harm. While the violation of any traffic law is presumptively negligent, there is a much murkier analysis when a Federal Regulation is breached. Much of the case law requires a very fact specific inquiry, but in general, Courts have been reticent to apply negligence per se to violations of the Federal Code of Regulations. However, given the right facts, a skilled and effective litigator can make this a central issue in the case. Even if not used to prove negligence per se, they can be used to show the jury that the driver was careless and fell below a standard of care expected under statute.
- Statistics and Data Can be Persuasive. If possible, your truck accident lawyer should try to work statistics of truck accidents into trial. People are naturally scared of trucks – and rightfully so. The data shows that there are over 5,000 deaths per year caused by truck accidents, and over 100,000 injuries.
Substance Abuse in Truck Accident Lawsuits
It goes without saying that when drugs and alcohol mix with semi trucks, it is a recipe for disaster. Due to this, the Federal trucking regulations deal with this issue very directly. Some may be surprised to learn that the law places obligations not just on the drivers, but also trucking companies, to ensure their drivers are sober while operating their trucks. The law provides for both criminal and civil penalties for both the carrier and the driver if they violate this obligation.
While drivers are the first line of defense against drunk or drugged drivers – the law provides that the carrier is ultimately responsible for making sure their drivers understand the law surrounding drug and alcohol use and follow appropriate protocols to prevent it while on the road.
The main general provision of Federal Law covering substance abuse in truck accidents are 49 C.F.R. §40. This provides for procedures for transportation workplace drug and alcohol testing programs. This provision – often called “Part 40” – provides detailed regulations on how to collect, test and report results of drug and alcohol tests.
Federal law prohibits any commercial driver to operate a vehicle with a blood alcohol concentration in excess of .04 percent. In fact, 49 C.F.R. §382.201 even prohibits a commercial driver to “report for duty” with a blood alcohol level in excess of this. As with alcohol, Federal Law prohibits truck drivers from working while under the influence of ““any drug or substance identified in 21 CFR 1308.11 Schedule I or in other schedules, unless prescribed by a licensed medical practitioner who assures the driver that the drug will not inhibit his ability to drive safely.” Trucking Carriers are specifically warned under Federal Law that if they have “actual knowledge” that driver’s are drunk or under the influence of a controlled substance, they must not allow drivers to work. Also, within 4 hours of engaging in what is known as a “safety sensitive function”, drivers are prohibited from consuming any alcohol at all. As with other regulations in this area, the law similarly requires carriers to ensure compliance with this section. The law states that a carrier is prohibited from allowing any driver to get behind the wheel with a blood alcohol content between .02 and .04. If a driver tests positive for the presence of alcohol, Federal law prohibits them from working “until the start of the driver’s next regularly scheduled duty period, but not less than twenty four hours following the administration of the test.” Trucking carriers also have obligations to institute policies to inform drivers and ensure compliance with this law. If a carrier fails to adequately instate a “program of deterrence”, they can be found liable for any ensuing alcohol related injuries. Carriers also have obligations to engage in robust pre-employment drug testing. Most importantly for truck accident litigation, Federal Law requires that:
“CDL drivers must be drug and alcohol tested whenever they are involved in a fatal accident, or receive a traffic citation resulting from an injury or vehicle-disabling accident. The alcohol test must occur within eight hours, and the drug test must occur within thirty-two hours.”
There are also a number of other circumstances in which Federal Law requires drug testing of CDL drivers. These include random tests, when a carrier has “reasonable suspicion” of drug use, a return to duty test, and a follow up to a positive test.
Broker Liability in Truck Accident Cases
Logistics brokerage is a huge business in the United States. At the most basic, brokers act as intermediaries between a shipper with goods on hand, and a trucking carrier that moves freight. While some carriers handle these logistics internally, it is increasingly common to have freight brokers in the middle of transactions directing carriers on where to pick up and drop off goods.
In general, brokers are less involved in the actual movement of goods, and thus are spared much of the liability in the operation of the truck. However, there are some circumstances wherein a logistics broker can be held liable for a truck accident. In the context of brokers, the main source of liability is negligent hiring of a carrier. In general, the law holds that an “independent contractor” acts independent of the broker, and thus the broker is not responsible for any harm caused. However, be aware that this is based on the state law of the state in which the truck accident litigation is brought, and thus will vary quite a bit.
One way brokers meet this obligation to vet careers is called the Behavior Analysis and Safety Improvement Category or “BASIC” score. A BASIC score is a numerical value provided by the FMCSA that considers the following seven categories: unsafe driving, crash indicators, hours of service compliance, vehicle maintenance, controlled substance use, driver fitness and hazardous material compliance. Finding this information is relatively inexpensive and easy to do, so a failure to do so can be very strong evidence that a broker has not met its obligation to engage in meaningful due diligence of carriers.
Who Can Drive for Trucking Carriers
One of the first considerations in a truck accident case should be on the qualifications of the driver. Remember that not everyone is qualified to be a truck driver in the United States. In sum, in order to be qualified to drive a truck commercially in the United States, you must have the following qualifications:
- Be 21 or older; and
- Capable of speaking and reading the english language such that you can communicate with others, understand highway and traffic signals and signs, respond to official inquiries, and make reports and data entries as required by law or policy of the carrier; and
- Can operate a commercial motor vehicle safely by virtue of experience, training or both; and
- Is physically able to drive a commercial motor vehicle as defined in 49 C.F..R §391.11; and
- Holds a current and valid driver’s license issues by a State in the United States; and
- Has provided the carrier with a list of violations under §391.27; and
- Has completed a driver’s road test and has been issued a certificate of completion.
A skilled truck accident attorney knows to use these factors to challenge the qualifications of a driver after a truck accident occurs. Of course, in any truck accident case, the most important factor is to determine if the driver of the truck was operating it responsibly. This involves an understanding of what inspections the driver did and how, what documentation they created and how thorough and detailed it is, and how attentive the driver was at the time of the truck accident. As truck accident litigators, we also find it very important to understand the historical traffic violation history of the driver. A known dangerous driver can expose a number of companies to liability – from the carrier to the broker.
Dennis P. Sawan
Licensed in Ohio and Georgia
Christopher A. Sawan
Licensed in Ohio and Michigan