Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure.  This is Part 6 in a nine part series of related discussions. The full list of the parts to this series appears following this installment.

The specific minimum requirements for records retention by interstate carriers, brokers, and freight forwarders are set forth in Part 379 of 49 CFR.  While such regulations are not binding upon an intrastate, or otherwise exempt, entity, many states have adopted 49 CFR, in whole or in part, so that they may effectively apply.  Moreover, even when they are not specifically applicable, a plaintiff may well argue that they provide an example of reasonable conduct, and thus the failure to abide by them could be deemed to constitute negligence, or provide the basis for a spoliation claim.

The basic standards for the hazards from which records must be protected are provided in 49 CFR 379.5.  Issues with regard to preserving records in electronic or other forms are addressed in 49 CFR 379.7.  The procedure for securing a waiver of the federal requirements is set forth in 49 CFR 379.11. 

The real "meat" of the federal record retention regulations is set forth in Appendix A to Part 379 of 49 CFR.  The table in that Appendix sets forth, in detail, a "laundry list" of records which must be preserved, as well as specification of a retention period for each. 

Setting aside the specific minimum federal requirements for records retention, it is clearly prudent to preserve a variety of records in conjunction with any accident which could later result in litigation.  One should, for example, always retain the driver's qualification file, as well as his or her logs for the date of accident and the time leading up to it (including supporting documents, such as fuel and toll receipts, etc.).  Documentation regarding the equipment should also be maintained, as well as that pertaining to the lading, as there may be an argument that the weight or distribution of the load caused or contributed to the accident.  Of course, all records regarding the incident itself (photographs, citations, etc.) should be retained.

It should also be noted that the statute of limitations applicable to a tort action often exceeds the minimum time period for the storage of records.  For example, logs must be retained, under the applicable regulations, for a period of six months.  One may have two or three years, however, subsequent to the date of accident, in order to file suit.  Accordingly, one could legally destroy the logs after six months, even with knowledge that the logs pertain to a date when the subject driver was involved in a serious accident.  Indeed, one major interstate motor carrier has been vocal about its policy of destroying records upon expiration of the time mandated by the regulations.  Others, however, including this writer, believe it is a far more prudent course of action to retain the records pending litigation, because of the potential inference, and thus negative impact on a jury, of having destroyed them.

The issues related to electronically stored records, including the so‑called "e-discovery" rules (to be addressed separately in Part 7 of this series) have further complicated the situation.  In short, it is a difficult chore to even identify all of the various types of electronically stored records an entity may have, including those which may have officially been destroyed, but copies of which have been retained on an individual's computer.

Whatever one's record retention policies may be, it is important to establish and articulate those policies and related procedures, and to educate one's employees with regard to them.  It is also important to have a system in place whereby the entity can monitor and help see that the procedures are followed.  The destruction of a record in violation of one's own articulated standard would, obviously, make the inference in terms of a potentially sinister reason for having destroyed the records, all the more dangerous.

As is readily apparent, there are a host of records, both within the applicable regulations, as well as beyond them, which may be relevant in litigation and thus which should be preserved.  It is recognized that taking all of the actions necessary to promulgate, and adhere to, a policy of records preservation will require the expenditure of resources.  It is suggested, however, that the "cost" of doing that is far less than the "cost" one may incur, in terms of damages and verdicts, if such action is not diligently undertaken.

The "Preservation of Evidence" Series

If you would like a copy of this, or any other part of this series, or to be placed on a distribution list, feel free to contact me or sign up for BTTV blog updates.

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure.  This is Part 5 in a 9 part series of related discussions.  The full list of the parts to this series appears following this installment.

Companies typically conduct investigations of accidents in which their equipment is involved, often through a "safety committee".  Such investigations frequently include a "preventability" finding in conjunction with the accident.  While there are legitimate reasons to conduct such investigations (e.g. the attempt to avoid similar accidents in the future), they should be conducted with their potential impact on related civil litigation in mind. 

First of all, one must keep in mind that nearly all communications, findings, and "internal documents" are now discoverable. Even text messages or emails between company representatives, or initial drafts of later revised reports, can regularly be obtained by opposing counsel.  There are privileges (e.g. attorney-client) which may be raised, but one can never count on being successful in that regard.  Moreover, the impact of having to disclose a problematic communication or document can dramatically increase one's exposure.

Consider the following example, which was actually encountered.  A driver was involved in a "rear-end accident" resulting in relatively minor personal injury.  The company's safety representative found the driver at fault and wanted to fire him.  Noting that the company already faced a shortage of qualified drivers, the vice president of operations, overruled the safety representative, concluding that the driver's record was "satisfactory overall". 

In response, the safety representative took two actions.  First of all, he sent an email to the vice president of operations expressing his disappointment with the decision, stating that he continued to believe that the subject driver was "the most dangerous driver in the fleet".  In addition, he wrote to the driver, emphasizing his concern over how "unsafe" he believed the driver was and how the safety representative would, accordingly, "be watching" him.

The same driver was later involved in a subsequent rear-end accident, which resulted in very serious injuries. We understood, from the outset, that liability was clear, and had intended to focus on minimizing the resulting compensatory damages.  I then learned of the prior communications and documents referred to above.  Fortunately, we were able to resolve the claim before having to disclose the subject documents.  If we had been forced to turn them over, the value of the claim would have increased dramatically, pursuant to a "negligent entrustment" claim.  Indeed, in some jurisdictions, we could have been faced with punitive damages, which would not have been available based solely upon the underlying fact of the two accidents.

There are similar problems with "preventability" findings.  While these were once required by the FMCSR, that requirement was eliminated long ago, with the repeal of 49 CFR §394 in 1993.  Nonetheless, many companies continue to routinely make such findings, and have policies based upon them (e.g. termination for two in one year, and a bonus for a year with none).  These findings, however, can have a devastating impact on related civil litigation. 

Those with experience in the transportation industry fully understand that the standard for "preventability" is much broader than negligence, and does not necessarily mean that the driver is legally liable.  Lay people, however, including jurors, usually do not understand such distinctions.  To them, your own safety representative admitted that your driver was at fault, and thus they will find liability against the motor carrier when a preventability finding was made, regardless of any attempt to explain the difference in standards. 

This discussion is not meant to suggest that safety investigations do not serve important purposes, or should be eliminated.  It is, however, intended to emphasize the importance of having those involved in the investigation process be aware of the potential impact of their actions on related civil litigation.  One should assume that any document he or she creates will end up in the hands of opposing counsel.  Accordingly, the "acid test" for creating a document is whether the author will later be comfortable testifying, before a jury, with that same document blown up on a big screen in court.

One should similarly be aware of knee jerk findings with regard to fault.  We frequently encounter, for example, accident reports in workers' compensation claims which indicate that the injury was due to the employee's fault, with little or no basis for such a finding.  That, of course, does not serve as a defense in the workers' compensation claim, as that is a "no fault" system.  The finding can, however, have a significantly adverse impact when the employer, and/or its insurer, later attempt to subrogate the claim against a responsible third party.  The third party defendant can then utilize the employer's own internal document as the basis for arguing contributory negligence on the part of the employee, which could bar, or reduce, the subrogation claim, depending upon the applicable jurisdiction.

One should similarly keep in mind the potential impact of a "preventability" finding.  The volume and quality of information which will be developed in an accident involving serious injury will almost always be dramatically greater than that which can be obtained in a routine internal safety investigation.  Accordingly, one may wish to "defer" conducting an internal safety investigation and finding, in such an instance, on the basis that the company will wait until it has the benefit of all of the information and documentation which will be developed in the related litigation.  In that instance, of course, one must deal with the driver, in terms of whether to put him or her back out on the road.  Some companies simply place the driver on "unpaid leave", understanding that the driver will then almost certainly seek other employment.  One may also include language on the forms related to the investigation and finding emphasizing the distinction between preventability and negligence although that may, as a practical matter, not be a significant help with jurors.

Safety representatives perform important functions, and their investigations can be valuable tools for motor carriers for whom they work or consult. All of those involved in the investigation process, however, need to be well versed on the potential impact of their actions on related civil litigation, so that they can keep the ramifications in mind when conducting their investigations, while making findings and preparing reports.  By conducting investigations in this fashion, one may be able to reap the benefits of conducting investigations without the unintended yet devastating consequences in related civil litigation.

The "Preservation of Evidence" Series

If you would like a copy of this, or any other part of this series, or to be placed on a distribution list, feel free to contact me or sign up for BTTV blog updates.

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure.  This is Part 4 in a nine part series of related discussions.  The full list of the parts to this series appears following this installment.

A key component of the physical evidence in any truck accident is the data available from any ECM or EOBR on the power unit or straight truck involved.  One should attempt to promptly identify the types of devices that are on the unit, and to have someone with the requisite expertise download and retain the data. It is imperative to confirm the devices before the unit is moved at the scene, as sometimes merely restarting the engine, or a subsequent "hard stop", can erase data.   

Another issue regarding the equipment is that of repairs.  As idle trucks do not generate any revenue, it is understandable that businesses want to repair units and get them back into service as soon as possible.  The reality of the transportation industry, however, is such that companies generally have additional capacity, and not all units need to be rushed back into service.  In any event, the need to generate revenue should be balanced against the potential increase in exposure by failing to preserve evidence related to damage to the equipment, and repairs.  As with all aspects of an accident investigation, the severity of the accident, and the likely exposure in terms of related claims, are significant factors in that evaluation process.

In some cases, the precise nature of the physical damage to the vehicles involved can be crucial.  For example, accident reconstructionists often utilize such information in the calculation of relative speeds of the vehicles at the time of impact, the points of impact and rest, etc.  Accordingly, those conclusions and opinions may have a significant impact on liability. 

It is important to also note that even when the nature of the physical damage to the equipment is, in reality, not significant, it is often perceived as such.  More importantly, failure to preserve related evidence may be perceived by a judge or jury as an attempt to "hide something".  Accordingly, measures should be taken to preserve such evidence whenever possible.

First of all, if the unit can be held out of service for at least some period of time, that should be done, and it should be safely preserved.  If one receives notice of representation of one or more of the potential adverse parties in related litigation, the company, or its counsel, can offer the opportunity for opposing counsel, and their experts, to inspect the equipment, under the supervision of defense counsel or some other company representative.  That offer should be conveyed in writing, with a reasonable deadline for response, along with language stating that failure to respond by that time will be understood to signify that the recipient of the letter did not care to inspect the equipment.  It is even better to obtain an affirmative declination to inspect the equipment, and to confirm the same in writing.

When an inspection is to be conducted, it should be done under the careful supervision of defense counsel or an appropriate company representative.  The vehicle should be isolated at the time of the inspection (e.g. on a part of the parking lot where other vehicles are not parked nearby), so as to avoid inadvertent contact by the inspecting parties with company employees, as opposing counsel and/or their experts will often to utilize inspections as an opportunity to question company representatives and gather other evidence. 

In situations where it is important to delay making repairs, one may need to be somewhat creative in terms of avoiding the need to use the unit.  For example, the company may utilize slip seating in another vehicle, even if that is not the ordinary practice, to avoid the need to repair and use the damaged unit.  Another problematic situation is that involving an owner operator. The owner operator's tractor is often his or her sole source of income, and thus he or she cannot simply fail to work while one waits to repair it.  In a serious claim, it may be cost beneficial for the motor carrier, or its insurer, to pay the cost of a suitable rental unit for the owner operator to use until his or her tractor is repaired. Such costs are minimal in comparison to the exposure in a serious claim. 

When repairs are to be done, they should be carefully documented.  Many photographs should be taken of the equipment before, during, and after the repairs are made.  In fact, one should also consider using a camcorder or other video device to film a "walk around" of the equipment during each stage. 

One should also carefully document the damage found, including any related estimates, and the nature of the repairs performed.  Finally, any damaged parts removed in the repair process should be identified and retained, pending potential litigation.  It is, again, understood that this poses some inconvenience, and perhaps even a storage cost, to the private fleet operator or motor carrier.  It is also, however, again noted that such costs are generally very modest, particularly in comparison to the potential exposure in a serious claim. 

The precise nature of the physical damage to equipment involved in an accident may be extremely important in helping a judge or jury determine what happened in the accident, and thus legal fault.  Moreover, even when it is really not that important, it may be perceived as such.  Accordingly, as is the case with other types of evidence related to an accident, the failure to preserve such evidence may be perceived as an attempt to hide something, which inference may have a more significantly adverse impact on one's position than any which would have been drawn from observation of the damage to the equipment involved.  Accordingly, one should take prudent steps to attempt to preserve evidence regarding damage to the equipment involved in an accident, including, when possible, delaying the making of such repairs until after counsel for the adverse parties have an opportunity to inspect it.

If you would like a copy of this, or any other part of this series, or to be placed on a distribution list, feel free to contact me or sign up for BTTV blog updates.

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. This is Part 3 in a nine part series of related discussions. The full list of the parts to this series appears following this installment.

The driver of a commercial vehicle may receive a citation in conjunction with an accident. The fact, and disposition, of such a citation may have several potential impacts on a related civil claim arising out of the accident.

First of all, the obligation imposed by federal regulations for the driver to have a post-accident drug and alcohol test depends in large part upon the receipt of a citation. If there is a fatality, then the driver must go for such a test, regardless of whether a ticket was issued. In the absence of a fatality, however, the obligation to go for such a test in the event of either "(i) bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or (ii) one or more motor vehicles incurring disability damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle” is triggered only if the driver “receives a citation within 8 hours of the occurrence under State or local law for a moving traffic violation arising from the accident”. 49 CFR §382.303. Of course, the driver’s employer may require such testing even when the subject regulations do not require it.

Moreover, the disposition of the driver's citation may directly impact a related civil claim. The impact may vary greatly, depending upon applicable State law, and one should, accordingly, be careful to confirm the nuances of the applicable law before deciding upon a course of action regarding the citation.

In Maryland, for example, if the driver goes to trial on the citation, and is convicted, such a finding is not admissible in a related civil suit. That is somewhat counter-intuitive in that the "beyond a reasonable doubt" burden of proof applicable to the "criminal" citation is greater than the civil "preponderance" standard. Again, however, the impact of a conviction may be admissible when some other State's law is applicable.

In Maryland, if the driver pleads guilty to the citation, that is generally admissible in a related civil action as an "admission against interest". Accordingly, it is always in the motor carrier's best interests for the driver to plead not guilty. With ordinary basic citations (e.g. "failure to pay time and attention"), it will generally also be in the best interests of the driver to plead not guilty. In such situations, there is no real potential conflict of interest between the driver and the motor carrier, and the attorney who will handle the civil claim for the motor carrier can safely represent the driver. If, however, there is a more serious charge (e.g. vehicular manslaughter), then it could be in the driver's best interests to plead guilty to a lesser charge (e.g. improper lane change), in order to avoid jail time.

The motor carrier, and its counsel, needs to be cognizant of any such potential conflict early on. Otherwise, if the attorney enters an appearance for the driver, then he or she may thereafter be precluded from representing the motor carrier in the related civil claim due to a conflict of interest. In such situations, the motor carrier may be well advised, for the reasons set forth more fully below, to retain and pay for separate counsel for the driver in conjunction with the citation.

Regardless of the plea or verdict, any traffic court trial involving an accident may be significant in that any testimony given could be used to impeach the same witness or party in the related civil claim, if his or her testimony is inconsistent with that given in the traffic court matter. Moreover, witnesses in the traffic court trial may be witnesses, or even plaintiffs, in the related civil action. Accordingly, having competent counsel represent the driver at the traffic trial may provide a valuable opportunity not only to protect the driver's testimony, but also to cross-examine potential witnesses, and even plaintiffs, when they are generally unrepresented.

As is readily apparent from the foregoing discussion, the issuance of a citation to a driver in an accident involving a commercial motor vehicle, and the disposition of such a citation, may have a significant impact on a related civil suit arising out of the accident. Accordingly, it is generally in the motor carrier's best interest to pay for the driver's defense in such matters. The related costs are generally very modest in comparison to the corresponding exposure in the civil claim. Moreover, failure to undertake such a defense may result in a hostile driver, whose testimony in the traffic trial will almost certainly be admissible in the related civil action, and whose cooperation may be crucial in defending the related civil suit.

The "Preservation of Evidence" Series

If you would like a copy of this, or any other part of this series, or to be placed on a distribution list, feel free to contact me or sign up for BTTV blog updates.

Preserving evidence in the event of an accident is crucial to minimizing one’s liability exposure. This is Part 2 in a nine part series of related discussions.  The full list of the parts to this series appears following this installment.

A motor carrier, and/or its insurer, will typically have several people respond to the scene of a serious accident.  The Company, for example, will usually have a safety representative respond.  In addition, defense counsel may respond, along with certain other vendors, such as an accident reconstructionist. 

One of the people who may assigned to help respond to, and investigate, an accident, is a field adjuster, often referred to as an independent adjuster, or “IA” for short.  The IA may play a very important role.  Accordingly, each entity should have a network of qualified IAs in place, as part of its “Go Team”.

It is imperative that the IA be accessible on a “24/7” basis. Accordingly, he or she should provide cell and home phone numbers, as well as office ones. Moreover, a back-up or substitute should be identified, with similar contact information, in the unlikely event the IA is not available when called upon. 

It will, of course, do no good to have an IA respond to the scene if he or she is not properly trained.  The IA, for example, should know when DOT regulations require post-accident drug and alcohol testing, as well as the particular Company’s internal requirements in that regard.  The IA should also be properly trained in terms of witness interviews, including knowledge of the Company’s position with regard to when recorded ones should be obtained.

In addition to identifying and interviewing witnesses, the IA may also be instrumental in following-up with regard to other information and documentation.  For example, he or she may be able to help facilitate obtaining a copy of the police report early on, as well as to possibly speak with the responding officer while the event is still fresh in his or her mind.  In addition, the IA may obtain photographs of the scene, and to note the existence and location of debris and other physical evidence which may be important, and to see that it is preserved.  The IA can also assist in terms of having any available data from any EOBR on the subject power unit downloaded and preserved. 

One of the advantages of utilizing an IA is that it is very cost effective, relative to some of the other vendors who may be utilized in more serious accidents. Accordingly, an IA may be assigned when an accident is not severe enough to warrant immediate assignment of defense counsel or an accident reconstructionist.  The IA may also be instrumental in helping to resolve minor potential claims early on.  Accordingly, one should be willing to extend a certain amount of discretion and authority to the IA, when he or she develops a trust level with the adjuster, so that IA can settle small claims “on the spot” when the opportunity arises.  Those opportunities often disappear when people thereafter consult with counsel, or otherwise decide to inflate their claims.

When defense counsel is to be involved in accident response and/or claims investigation, it is important to have counsel oversee and “direct” the IA’s activities, in order to maximize the potential for protecting any resulting work product under the applicable privileges.  Communication, as with all aspects of claims, is also important in terms of the IA’s work and findings.  He or she should be careful to know when to provide written reports, and in what format, as well as when it is better to simply provide a prompt verbal report.

There is no set “recipe” for success in terms of responding to, and investigating, an accident.  The use of a qualified field adjuster, however, may go a long way to identifying and preserving evidence, and, as noted above, to possibly resolving claims early on.

The "Preservation of Evidence" Series

If you would like a copy of this, or any other part of this series, or to be placed on a distribution list, feel free to contact me or sign up for BTTV blog updates.

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. Despite safety efforts, accidents are sometimes going to occur. Your exposure in related litigation may be extensive. Accordingly, it is crucial you have tools in place in the cab, and to train your drivers on how to do use them in the event of an accident.

Efforts should be made to preserve physical evidence, such as vehicle debris. If someone (e.g. police) removes such evidence, the driver should attempt to document where it was (e.g. through the use of photographs) and who took custody of it. Photographs in general can be crucial, and drivers should be trained in deciding what photos to take. One should take photos of all sides of the vehicles involved in the accident, debris, skid or yawl marks, etc. Moreover, photos should be taken from several angles and distances so that someone (e.g. an accident reconstructionist) can later determine measurements based upon them. Photographs of those injured in the accident should not be taken.

Statements may also be crucial, as they can later be used against the driver. Some companies advise drivers to cooperate fully in giving statements. Others have taken the position that drivers should decline to give any statements until their attorney arrives. It's important for the carrier to clearly communicate their policy to drivers in advance. Whenever statements are to be given, one should never provide estimates of time, speed, or distance. People are inherently bad at such estimates, and an innocent error can later be used to attack one's credibility, when objective evidence shows that the estimation was wrong.

Drivers should get full contact information of favorable witnesses. Similarly, do not do the plaintiffs' attorneys' job by doing so with unfavorable ones. Avoid admissions at the scene (e.g. "I'm sorry"), and document admissions made by others. If a potentially adverse party makes an admission, document any other witnesses who may have heard the admission, as the one making it may well later deny having done so. Include an "exoneration card" in your accident kit, as one may, albeit in rare instances, be able to get a potentially adverse party to sign it.

Steps should also be taken to download, and preserve, any data from any EOBR or ECM on the power unit. Finally, every motor carrier should establish its post-accident drug and alcohol testing policy and communicate that policy to all drivers. Some companies follow the DOT mandate, while others require testing in all accidents, or at least recordable ones. Whatever your policy is, the driver needs to know it so that he or she can follow it, as failing to do so may be interpreted as the driver having something to hide.

The window for acting at the scene, and the opportunity to preserve related evidence, is extremely limited. Companies need to carefully train their drivers on the proper procedures to follow in response to an accident, and have a 24/7 "Go Team" (internal safety representative, field adjuster, attorney, etc.) in place for each and every jurisdiction in which their drivers operate. Having a solid "game plan", and properly executing it following an accident, can go a long way toward being able to protect one's interests in related litigation.

In working with motor carriers and private fleet operators, one of the most frequently overlooked issues we encounter is the failure to have an effective equipment lease in use with owner operators. There have been a number of lawsuits filed by OOIDA based on defective leases. Although the amount owed to any one contractor may be relatively small, such a case often qualifies for class action status, which can easily result in millions of dollars in exposure. Worse yet, you generally will have no insurance for such a lawsuit. Some such suits have driven motor carriers to bankruptcy.

The regulations governing equipment leases (49 CFR 376.12) are very specific in terms of minimum "do's and don'ts". The most frequently encountered deficiencies are failure to include the required language regarding the carrier's "exclusive possession, control and use" of the equipment during the lease; failure to pay interest on escrow funds; and failure to disclose "admin fees" charged in conjunction with insurance purchased through the carrier.

In addition to compliance with the applicable regulations, the lease is, after all, a contract, and there are a number of other important provisions which should be addressed. For example, one will generally want to include provisions regarding confidentiality and non-competition, in order to avoid having the contractor "back solicit" the carrier's customers. One should also include language prohibiting markings on the equipment, other than those required by DOT, without the carrier's prior written agreement, as such markings may increase exposure for the motor carrier in a related accident. For example, having "monster jaws" on the grill of the tractor may have an extremely inflammatory impact on a jury when that power unit is involved in a serious accident. One may also wish to include an indemnification requirement for accidents and fines caused by the contractor. There are many other typical contract issues (e.g. choice of law, venue, arbitration, etc.) which should also be addressed.

Additional issues arise when the contractor is subject to a "lease-purchase" contract regarding his or her tractor. That contract must give the contractor sufficient control over the tractor in order to properly qualify him as an "owner" for FMCSR purposes, and as an independent contractor for tax and workers' compensation purposes. Moreover, if the carrier wants to be able to deduct sums owed by the contractor from his or her settlement checks (which it almost certainly will want to be able to do), the regulations require that the terms of the lease-purchase agreement be incorporated into the lease's charge-back provision. That can usually be accomplished by attaching a copy of the lease purchase to the lease and incorporating it by reference.

If you haven't had your equipment lease reviewed and updated for some time, you should do so as soon as possible. While there is a cost associated with doing so, that cost is minimal, and pales in comparison to the exposure which the carrier may face without a proper equipment lease in place.