Opinion: Truck Crashes Happen — Be Ready

By Curtis Parvin

Managing Partner

Sedgwick, Detert, Moran & Arnold

This Opinion piece appears in the July 14 print edition of Transport Topics. Click here to subscribe today.

Despite fuel prices zooming toward the outer edge of our galaxy, ours is a nation of crowded highways and busy people who don’t like trucks getting in their way. And because those outside the trucking industry are inclined to assume any crash involving a truck and a car is the fault of the larger vehicle, carriers are beginning to understand the importance of being ready for a financially catastrophic crash before it happens.

The best way for a trucking operation of any size to avoid being pushed into a dangerously defensive position after a crash is to create a detailed accident response plan covering everything from dented fenders to major property damage, traumatic injury and death — and to do it well ahead of time. Having a crash-response action plan — and team — can significantly affect how liability claims pan out.

Fortunately, trucking companies usually receive immediate notice of significant accidents, giving them a small but precious window of time in which to notify team members to hit the ground running. The goal is to get them to the accident site before law enforcement exits the scene or vehicles are shifted or removed. Once on-site, they should note and record the evidence in meticulous detail.

Major carriers probably will have home-grown response teams able to handle everything for the company. But even smaller trucking operations can prepare for accidents in advance, if they set things up with a third-party administrator, adjuster or insurer. In either case, the goal is to construct an analysis of the crash detailed enough to withstand any scrutiny or challenge.

Ideally, the accident-response team should include an insurance adjuster or investigator, the carrier’s attorney, an accident reconstruction expert and the driver — if he has survived the accident and isn’t too badly injured to participate.

The driver should have all necessary paperwork with him — including his commercial driver license, vehicle registration information and proof of insurance. He should be ready to trade information with other parties involved in the accident and get contact information from any witnesses.

Commercial drivers always should carry a camera in the truck cab, preferably digital, to prepare a photographic record of any accident, including vehicle damage, skid marks, debris, signs, street markings and road conditions, such as heavy rain, icy pavement or road-repair work zones.

The insurance investigator should ensure that the driver’s log, bill of lading and other relevant evidence are protected and also should take photos — particularly if the driver can’t. The investigator should make sure witnesses — and police officers — have been identified and contact information secured. With an OK from the police, the investigator should take statements from accident participants and witnesses.

Cooperating with law enforcement early in the process and setting up lines of communication makes it easier to get information, profit by their analysis of the situation, obtain photos and even get access to impounded vehicles before the official report is issued.

The carrier’s attorney should help direct the investigation and make sure communication with the driver is protected by attorney-client privilege and the less-well-known attorney work-product protection, which guards the attorney’s work pre-paring for litigation.

Finally, the accident reconstruction expert should try to be one of the first on the scene, because as time passes, opportunities to view physical evidence “in situ” slip away. The expert should have a chance to check over all the vehicles involved.

After the accident site is cleaned up, the next phase of response kicks in as the trucking company and/or its agents:

• Download data from the truck’s “black box,” Global Positioning System tracking device or any other data-collecting software and equipment before anything is lost or altered.

• Test the driver for alcohol and drugs. Federal law requires drug testing in any accident with injury.

• Gather and preserve relevant documents, including the driver’s logs, employment file, driving history and state department of motor vehicles printouts; maintenance records for the tractor and trailer; documents for pickups or deliveries in progress at the time of the accident; communications between the driver and dispatch; GPS driving-location records; and cell-phone records for the driver and any co-driver.

• Monitor news media reports about the accident.

• Gather accident site and route overlays and other information available from public sources such as state-wide traffic reporting systems, which may shed light on causation.

• Research possible injury claims; background checks on claimants can uncover valuable information.

• Preserve physical evidence before anything is altered or destroyed. If it won’t cripple your fleet, put off repairing a damaged tractor or rig and move it to a site where it can be covered, sealed and stored until all parties have had a reasonable opportunity to examine it.

• Obtain official reports and records from law enforcement (including supplemental reports and photographs), Department of Transportation reports and, if applicable, any reports from the coroner.

• Conclude interviews with witnesses and obtain written or recorded statements.

Your goal is to gather all relevant evidence and information on the accident within 30 days, but no later than 60 days. That interval will allow you time to analyze the accident, determine probable fault and decide whether to oppose any claim or negotiate a resolution as favorable as possible.

Curtis Parvin works from the Irvine, Calif., office of Sedgwick, Detert, Moran & Arnold, where he is a member of the firm’s Transportation Task Force.