Katherine Harvey-Lee
Attorney and Founder, California Truck Injury Law
Email: kate@californiatrucklaw.com
Commercial trucking litigation is complex. The complexities of the collision, the extent of the injury, the intricacies of the industry itself -- including issues of insurance coverage and federal regulations, make trucking litigation far more complicated than a traditional motor vehicle collision suit between two private drivers.
In a car-on-car collision, where injuries may not always be incapacitating at the time of the collision, clients can be a wonderful source of on-scene information. But consider the impact of an 18,000-pound truck crashing into a passenger car. Not surprisingly, victims frequently suffer catastrophic or fatal injuries. In a trucking case, your new client was likely not in a position to take photos at the scene, get witness names, or get critical information regarding the trucking company.
Today, large tractor-trailers are rolling computers with substantial data that must be protected to fully understand how a collision occurred. The truck itself may be your best evidence, but by the time you've signed up the case, the clock is ticking on whether that evidence is being preserved.
There is a bottom-line factor that also makes trucking litigation so challenging: The truck driver is typically an employee of an insured, and possibly well-funded commercial carrier. The Network of Employers for Traffic Safety reports that vehicle crashes are the number one cause of death and injury in the workplace. In addition to the pain and suffering caused, traffic crashes cost employers more than $60 billion annually in the U.S. alone. Employers will often try to have a case dismissed or avoid compensating another driver, regardless of the cause of the accident. More often than not, an insurance adjuster and even a defense attorney will be on the scene of an accident before law enforcement has cleared the area.
By the time an injury lawyer has accepted a trucking injury case, they are probably already further behind than they'd like to be. Understanding trucking terms, preserving evidence as quickly as possible, knowing what to investigate, and who to depose, will lay the groundwork for effective litigation.
Step 1. Understanding Definitions
Before you undertake a "trucking" case, be sure you know if the potential defendant's truck meets the definition of a "commercial motor vehicle." The Federal Motor Carrier Safety Regulations provide the basics for understanding what constitutes a commercial motor vehicle -- a truck or a bus. The FMCSR definitions are found in 49 CFR Section 390.5. They define a commercial motor vehicle as follows:
"Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle:
"(1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or
"(2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
"(3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
"(4) Is used in transporting material found by the Secretary of Transportation to be hazardous..."
Qualifying trucks range from 18-wheelers to box trucks to tankers, and a regulated commercial vehicle can include a hired vehicle designed for more than eight passengers including the driver. This is a pretty wide range of vehicles. Moreover, there are exemptions to the FMCSRs for certain types of vehicles, such as farm vehicles or school buses. So, understanding these definitions and the applicability of regulations is critical.
Step 2. Find the Motor Carrier
The Federal Motor Carrier Safety Administration oversees entities that it "authorizes" to operate as a motor carrier. Commercial trucking litigation almost always involves a "for-hire motor carrier," which is also defined under 49 CFR 390.5 as a person or entity engaged in the transportation of goods or passengers for compensation.
The FMCSA also defines and authorizes a number of entities within the chain of distribution -- such as brokers, shippers, intermodal equipment providers, freight forwarders. Any or all of these may have had some role to play in the collision, but finding them will start with finding the for-hire motor carrier responsible for the load on the truck at the time of the crash.
In its oversight role, the FMCSA issues a Department of Transportation number and a Motor Carrier number to for-hire carriers, which is required to be prominently displayed on the truck's exterior. The client (or more likely the law enforcement on the scene) will hopefully have recorded the USDOT or license plate number. A search for the USDOT number on the FMSCA website will give you critical information on the motor carrier -- including where to find them. Then it will be time to draft correspondence. This must be done immediately and comprehensively in order to protect many of the critical pieces of evidence that might otherwise disappear.
Step 3. Letters of Spoliation and Evidence Preservation
Draft the spoliation letter to request or demand the preservation of evidence about the truck and its driver. Trucking companies are required by regulations to preserve certain records and follow a range of safety protocols and should possess and retain a wide range of records and reports about their drivers and their vehicles. A well-drafted preservation letter will help you preserve and acquire this evidence, because defendants do not always keep it -- even when litigation looms. If you have drafted this letter early enough, then defendants are on notice and can be held accountable if evidence is later missing.
Your spoliation letter should include a few key features:
Intent: It explains the intention to pursue legal action and the defendant's duty to preserve evidence.
Specificity: Detail particularly the evidence you know or believe you need.
Comprehensive: Cover everything you may need; do not rely on the defendants to broadly construe your requests.
Professionalism: Though you have to move quickly, do not act hastily. If you are not well-versed in drafting letters of spoliation -- particularly to trucking companies or carriers -- align with a trucking litigation lawyer who can offer their services.
The truck should be out of service following an accident. It is a key piece of evidence that should also be accessible to you for investigation and discovery. Tractor-trailers today have an array of systems that record everything from a truck's speed to a driver's hours. An early inspection and access to the data in these systems is key. A defendant may not make access easy in an effort to discourage you, so persistence is necessary.
Step 4. Investigate the Driver
Following any incident involving a commercial motor vehicle, an investigation of the driver is routine and necessary.
Under the FMCSRs, motor carriers are required to hire qualified drivers, train them and monitor everything from hours of service to their medical condition. The general qualifications are found in Section 391.11, and as per Section 391.23, employers must perform a thorough background check.
Do your own research about the driver's professional history and the company's track record. You may uncover a pattern of negligence that will help you during depositions. Many times you will need to dig into a driver's medical history or social media pages to find important evidence relevant to the crash.
Step 5. Depositions
There are several people you will need to depose, but we will focus on two key individuals.
Continuing from Step 4, the truck driver is the obvious and perhaps the most important deposition because you will want to better understand if the accident was caused by malfunction, human error, or even the pressures caused by other entities within the chain of distribution. Establishing whether the driver was acting professionally and safely is essential to any trucking matter. You want to find out about: the truck driver's medical condition; fatigue and whether the driver exceeded the maximum hours to be safe on the road; how and when they were trained; what educational materials they have seen or consulted and how they furthered their education and training through safety courses; and whether the driver complied with state and federal mandatory safety standards, California CDL requirements, and the trucking company's safety policies and procedures as well as basic industry standards.
You will also need to fully investigate if the driver was distracted. Studies by the National Highway Traffic Safety Administration have concluded that 80% of all crashes and 65% of near-crashes are due to some form of driver inattention. Request mobile phone records and collect eyewitness accounts.
Typically, it helps to depose the driver before the trucking company's safety manager, because it will shape the questions you ask the safety director -- the second individual in focus.
Deposing the safety director will explore the driver's conduct, the company's safety protocols and any warning signs the company missed in regard to the driver or incident. Most importantly, it will help determine whether safety for the trucker and general public was intentionally sacrificed by the company in the chain of events leading to the truck accident. This individual can also give you an overview of the chain of distribution and what other influences or problems there may have been that led to the collision.
Effective depositions of the driver and corporate safety director can reveal critical facts that can add hundreds of thousands of dollars to a serious injury truck accident case in California.
Align With a Trucking Litigation Lawyer
The insight above is a high-level overview of pre-litigation steps. Lawyers need to honestly assess their abilities in this complex area before getting too far deep into a case. We are dealing with tragedies and costly catastrophic injuries that require surgeries and years of rehabilitation, and securing a favorable resolution can take years.
Your client's life or health may be hanging in the balance, which is why aligning with an experienced trucking litigator is often the best course of action.