One of the things our firm does to help the legal community and people generally is to inform lawyers about the kinds of cases we deal with every day. Also, our lawyers routinely write and publish articles in an effort to help injured people have access to the most informed legal representation available. One particular article, written recently by Chris Glover, a lawyer in our Personal Injury Section, was submitted for publication in Sidebar, which is a publication of the New Lawyer’s Division of the American Association for Justice. With permission, we are including the article in this issue and hopefully our readers will find it useful. Leslie C. Ellis, a staff attorney with the firm, also contributed to the article.
It may seem like a somewhat daunting task to prepare for a trucking case, but with proper preservation, gathering and planning, trucking cases do not have to be as formidable as they initially appear.
One of the most important things to realize is that trucking cases are not like typical car wreck cases. This difference is due, in part, to the fact that the trucking industry is highly regulated by our federal government through Federal Motor Carrier Safety Regulations (FMCSR) (http://www.fmcsa.dot.gov/rules-regulations/rules-regulations.htm). Every aspect of a trucking case, from preservation of evidence to proving negligence claims, is affected by the FMCSR. So, it is important to familiarize yourself with these rules and regulations or associate counsel skilled in this area.
Remember, even if you get the case early on, your investigation is already behind. By the time you meet your client, several investigations have already been performed (law enforcement/ Department of Transportation (DOT), trucking company, and insurance company). So, after the initial client interview, send preservation letters to every potential Defendant and nonparty in possession of evidence, informing them of their legal duty to preserve evidence in a potential civil trial. For example, send a letter to the trucking company requesting preservation of driver logs, onboard computer data (i.e., electronic control module “ECM” data), and dispatch records. Otherwise, DOT regulations require that these records only be kept for six months. Preservation letters not only keep Defendants from discarding evidence in the normal course of business, but also prove notice if spoliation becomes an issue at a later date. Further, to prevent spoliation and inadvertent loss of evidence, you should find, inspect and secure the accident vehicles as early as possible in your investigation.
Go to the scene of the accident with an investigator or accident reconstructionist and take your own photographs and video of the scene. Then, identify and contact all potential witnesses. Getting eyewitness information about speed, distance and driver behavior is crucial to your case. Since memories tend to fade with time, the quicker you are able to contact and interview witnesses, the more details you will be able to obtain.
After identifying the truck driver, obtain a complete driving history from each state in which he was issued a Commercial Driver’s License (CDL). Also request a copy of the Uniform Traffic Accident Report. If there was a motor carrier inspection performed on the date of the wreck, obtain that report as well by contacting the Motor Carrier Safety Division of the Department of Public Safety. Further, if fatalities occurred, a Traffic Homicide Report from the Department of Public Safety should also be requested. It is also imperative that you contact the appropriate state agencies and request copies of any other filings or certificates concerning the trucking company.
Potential Defendants and Theories of Liability
After conducting the pre-suit investigation, carefully review all of the evidence and identify any potentially responsible Defendants, taking care to consider the following people: truck driver, trucking company, owner of the tractor, owner of the trailer, freight broker, freight shipper, vehicle maintenance or servicing company, manufacturer of the tractor or trailer, and/or the manufacturer of your client’s vehicle.
Thoroughly research the facts of your case to ensure that you include all applicable theories of liability in your complaint. Some commonly used theories in truck cases include: negligence; wantonness; negligent entrustment; negligent/wanton hiring, retention, training and supervision; negligent maintenance of the vehicle and equipment; and product liability. Product liability cases are often overlooked, especially in a single vehicle accident involving a large truck. However, theories of defective roofs, seatbelts and the like apply equally to 18-wheeler trucks as they do to a car.
Your discovery should focus on establishing liability while still considering factors that substantiate a claim for punitive damages. During discovery, request the following: driver’s qualification file and logs, daily inspection reports, annual inspection report, inspection, maintenance, and repair records, OEM data and/or printouts, any drug and/or alcohol tests taken after the accident, accident register, any bills of lading, weight tickets, or hotel receipts for the week preceding the accident, any policy and procedure manuals or training documents, medical records of the Defendant driver, medical records of your client, the motor carrier profile from the DOT and the DOT safety audit and rating of the trucking company.
After obtaining the responses to all written discovery, depose the truck driver, the trucking company corporative representative and the safety director. Be sure to question the safety director thoroughly regarding hiring criteria, safety policies, safety records and procedures as well as methods of driver monitoring. The Federal Motor Carrier Safety Administration (FMCSA) maintains company safety profiles on carriers, available at http://www.fmcsa.dot.gov/.
Early in the litigation, determine the existence and amount of insurance coverage available in your case. Beyond the obvious discovery requests, take a look at www.safersys.org to determine the amount of coverage the trucking company has obtained. Remember that FMCSR Part 387 sets out the minimum levels of financial responsibility for trucking companies. Also, it is important to note that one of the unique considerations of insurance coverage involving commercial carriers is the MCS-90 endorsement. This is a federally mandated endorsement for all commercial carriers over 10,000 lbs., enacted to prevent parties involved in the shipping of freight from denying responsibility and pointing the finger at each other and in effect preventing and/or delaying recovery to an injured party.
Carefully consider the facts involved in your case and select appropriate experts. For example, if your case involves a serious and permanent injury, the use of an economist to prove loss of future earning and the use of a life care planner to prove future medical costs can greatly impact your case value.
It is a good idea to hire an accident reconstructionist early in the case so that he can be involved in the inspection of the accident scene and vehicles while the evidence is fresh. This expert is invaluable in your determination of liability and also in determining any aggravating circumstances such as speed or failure to take corrective action.
An expert knowledgeable in the FMCSR is also an important asset. Such experts can greatly assist you by determining if a safety or logbook violation exists as well as providing testimony regarding improper vehicle maintenance, inspection, and equipment. Also, an expert can assist you in preparing for the trucking company’s depositions in your case.
Simply looking at the complexity of a trucking case, your head may begin to swim with the enormity of it all. Planning, however, is the key to cutting down the behemoth early in the process. With a step-by-step plan and organization, trucking cases can be successfully prepared.
Personal Injury Section
Our firm routinely evaluates 18-wheeler cases. If you would like more information on this subject or have a question, you can contact Chris Glover, Julia Beasley or Mike Crow at 800-898-2034 or by email at Chris.Glover@beasleyallen.com, Julia.Beasley@beasleyallen.com or Mike.Crow@beasleyallen.com.
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