United States: Responding To The Catastrophic Trucking Accident

Recently, a 15-truck pileup occurred on the rain slicked Interstate 5 freeway near Santa Clarita, California. Five big rigs were engulfed in flames inside a tunnel, closing the tunnel for days and causing extensive damage. Initial reports indicated that at least 10 people were injured and three were killed, and there were at least ten vehicles where the drivers were unaccounted for. This is a dramatic example of the type of catastrophic accident that trucking companies fear yet must be prepared to respond to immediately. Prompt gathering of information, witness statements, photographs, and other evidence are critical in the defense of any involved trucking company in order to prepare for the inevitable claim or lawsuit. That cannot be accomplished effectively on an ad hoc basis, but rather there must be advanced preparation. The article will address steps that trucking companies need to take to be prepared for the unthinkable.

More and more trucking companies are realizing the importance of having systems in place to deal with catastrophic losses, whether they involve major property damage or serious injury or death claims. The ability to respond, and promptly, can have a significant impact on the disposal of potential claims, which goes right to the bottom line of the company. Certainly, the larger companies are in a position to set up their own response teams in house. But even without an internal response team, there is no reason why any trucking company cannot negotiate in advance with a third party administrator ("TPA"), adjusting firm or insurer to ensure prompt response capabilities. The key is to set up a network that can respond anywhere the trucking company does business.

Prompt response does not mean within a week or even days. It means, to the extent possible, while the vehicles are still on scene. The advantage that trucking companies have is that they typically receive notice of accidents immediately. If the driver is not seriously injured or killed in the accident, standard practice should (and usually does) include the driver immediately contacting dispatch to report the accident. If the driver is incapacitated or killed, law enforcement officials typically make contact with the trucking company. Either way, once a serious accident is reported, the company or its agents need to swing into action. The immediate actions should include:

• Take pictures. The driver's rig should be equipped with a camera. Digital is best, which can include a built in cell phone camera. Short of that, something as simple as a disposable camera can easily be kept in the tractor. The driver should take photographs of the scene, vehicle damage, skid marks, vehicle debris, relevant signage and anything else of potential interest. The driver should keep in mind that there can never be too many pictures.
• Get an adjuster or investigator on site immediately. The goal is to have the adjuster on site before any of the vehicles are moved, and while law enforcement officials are on scene. The adjuster will help gather more detailed evidence, protect documentary evidence (driver's log, bills of lading, etc.), take more photographs, identify witness and, if law enforcement officials will allow, obtain statements. The adjuster can also coordinate with and assist law enforcement. There is no good reason not to cooperate with law enforcement, and to provide them with whatever information they request. Obtaining their good will early will boost the ability to get information from them, to get insight into their analysis, and to obtain photographs, access to impounded vehicles, and other information even before the official report is issued.
• Get an attorney involved. The attorney can help direct the investigation. By doing so, he/she can make any discussions with the driver protected by the attorney-client privilege, and the fruits of the investigation will be subject to attorney work product protection. The attorney should always be involved in, or at least direct, the interrogation of the driver.
• Get an accident reconstruction expert on site immediately. The more data that the accident reconstruction expert has, the more accurate and complete the analysis will be. The more accurate and complete the analysis is, the more it will withstand scrutiny and challenge. The best way to obtain the most and best data is for the expert to be on scene while the vehicles are still present. If he cannot be there that quickly, he should arrive within 24 hours to maximize the potential that skid marks and other physical evidence remain in place. There may not be time to do a complete vehicle inspection at the accident scene, but that should be completed within a matter of days, again to ensure preservation of accurate evidence.
• Download data. If the truck is equipped with a "black box," GPS tracking system, or any other kind of software or data collecting equipment, the data should be downloaded before it is lost or altered. Some systems allow this to be done remotely from headquarters. However, keep in mind that some systems are limited to the truck and can lose data once the truck is re-started and moved, so it may be necessary to tow the rig from the site to a safe location, even if it is drivable.
• Get the driver drug tested. It is required by Federal law in any injury accident, and should be done right after the driver is released from the scene. It is good practice to have the adjuster identify and take the driver to the nearest testing facility.

While all this is going on, the company and its adjusters and investigators should start doing several things, and these can continue over several days:

• Gather Documentation. All relevant in house documents need to be gathered and preserved. These include, but are not necessarily limited to: the driver's log for at least the preceding two weeks; the driver's employment file, including driving history and DMV printouts; the maintenance records for both the tractor and the trailer for at least the preceding six months; the bills of lading and any information relating to the involved delivery; at least one week of printouts of communication records between the driver and dispatch; GPS driving location records for at least the preceding two weeks; and cell phone records for the driver and, if applicable, co-driver.
• Follow the Media. Copies of news reports in the press, including both television and newspaper, should be monitored and copies obtained.
• Gather Outside Information. Accident site and route overlays and other valuable information can be obtained from a number of public sources, including on the internet. Roadway accident history reports such as "SWTTRS" reports may shed light on causation. The surrounding area can be canvassed if appropriate. (One trucking company was involved in a fatal accident where the other driver had been drinking. A canvass of the area within 24 hours found two bars where employees confirmed that the driver had been there and had been cut off from further drinking due to excessive intoxication.)
• Research Potential Claimants. Knowing early on what kinds of injuries are involved can be key to early resolution, as well as whether it makes financial sense to take additional steps such as night time conspicuity testing. Tracking hospitalizations and treatment can be done, albeit it is more limited these days due to privacy restrictions. Background checks on the involved drivers and passengers can often turn up valuable information. Information about the venue, and the socioeconomics of the potential claimants, are also important to assess potential case value.
• Preserve the Physical Evidence. If the tractor or trailer are damaged, they should not be immediately repaired unless there is absolutely no alternative (e.g., there are only one or two vehicles in the "fleet.") To the extent possible, the damaged tractor or rig should be moved to a convenient site where it can be covered/sealed and stored for as long as necessary. The company does not want to be accused of spoliation of evidence. If a claim is presented, it would not be unreasonable to give the claimant, or his/her attorney, a specified reasonable amount of time to fully inspect the vehicles with the warning that if the vehicles are not inspected within that time frame, they will be repaired and returned to service. Even then, all damaged parts removed from the vehicles should be preserved.
• Complete the Vehicle Inspections. To the extent the vehicles could not be fully inspected on the day of the accident, they should be promptly inspected before any evidence is altered or destroyed.
• Obtain Official Reports and Records. Obtain the official reports from law enforcement personnel, including supplemental reports, photographs, DOT reports and, where applicable, coroner's reports.
• Complete Witness Interviews. Any and all witnesses to the accident should be interviewed and either written or recorded statements obtained.

The goal of this work will be to gather all relevant evidence and information regarding the accident within thirty days if possible, but no later than sixty days. That will allow the company to make a fully informed analysis as to how the accident happened, and who was at fault, and what the potential exposure may be. Clearly, obtaining all the evidence to mount a strong defense is important. But it is just as valuable to know those situations where liability is clearly adverse, or where there are "skeletons" in the closet that will have to be dealt with (such as the driver being over hours, or having a poor driving record). There is no sense spending tens or even hundreds of thousands of dollars on attorneys and experts if an adverse case can be resolved quickly and fairly. And there is great advantage to being able to make strategic decisions about the impact of adverse information well before its disclosure may be required. This can only be accomplished if the investigation is completed quickly and thoroughly, before the potential claimant can gain the upper hand.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.