A complete, thorough, and aggressive investigation of the tractor-trailer wreck must occur as quickly as possible.
Evidence can be lost. The skid marks at the scene of the wreck could be washed away by rain. Witnesses may not remember as many details if they are not contacted soon after the wreck. Photos of the scene taken weeks or even just days later may not be as impactful when repairs have been made to barriers or other items damaged as a result of the wreck.
In our experience, a lot of trucking companies have an immediate response team that they dispatch to the scene of the wreck as soon as they are notified about the crash. This team could include their investigator, an accident reconstructionist, the claims adjuster, and at times, their lawyer. Time is of the essence in quickly gathering as much evidence as possible.
With our firms, the investigation of the potential claim starts from the first moment the potential client calls our offices or comes in for their free consultation. We interview the client to find out as many details as possible about the wreck. We also review the police report and verify its accuracy based upon our client’s statement of what happened.
The following is an excerpt from Gary Martin Hays' new book The Authority on Tractor-Trailer Wreck Claims in Georgia. If you have questions regarding a tractor-trailer crash, contact us at (770) 934-8000.
What We Investigate Immediately After a Tractor-Trailer Wreck
If we agree to represent the client, a contract of employment is signed authorizing our firms to act as the legal representatives for the client in all matters related to the tractor-trailer collision. We then take further actions, as necessary, to investigate the claim, including:
- interviewing the investigating police officers that responded to the wreck;
- interviewing potential witnesses;
- hiring an accident reconstructionist to go to the scene of the wreck, take measurements and photos, so they can render an opinion on how the collision happened, including the speed of the vehicles;
- taking photos and videos of the scene from every angle, including the use of drone photographs or videos, when necessary;
- taking photos of all vehicles involved, including damage to any other objects at the scene of the collision;
- requesting photos and videos that may have been taken by any law enforcement agency that came to the scene of the collision;
- requesting audio recordings that may have been taken by any law enforcement agency that came to the scene of the collision;
- obtaining a copy of all 911 calls regarding the wreck or any events that may have led to the wreck;
- obtaining other incident reports if additional government agencies investigated the collision;
- checking with businesses in the area to see if any of the collision or preceding/subsequent events were caught on their surveillance cameras;
- contacting local police agencies to see if they had any “red light” cameras at the intersection that could have captured the collision;
- checking with businesses or homes near the scene of the collision to see if anyone saw the wreck or came to the scene to render aid after it occurred;
- interviewing EMTs and any other first responders that treated the persons involved in the wreck;
- interviewing the tow truck driver(s) that removed the vehicles from the scene;
- speaking with the mechanics that repaired the vehicle;
- attending any hearings or trials that will happen if the defendant was cited for crimes other than the traffic violation, such as for driving under the influence;
- requesting a certified disposition of the defendant’s traffic citation(s).
Preserving Evidence After a Crash
In addition, we immediately send a spoliation letter to the defendant driver, the trucking company for which they worked, as well as to any insurance company that may afford coverage to them for the date of the incident.
A spoliation letter is essentially a notice to the opposing parties in a wreck that requests they preserve any and all evidence which may have any bearing whatsoever on the claim. This is a demand that they do not destroy or conveniently “misplace or delete” any evidence which could have a bearing on the case.
If the parties cause the destruction, alteration, or the loss of any of these documents or material things, it will give rise to a legal presumption that the evidence would have been harmful to their side of the case. Further, they are on notice that we will seek all available sanctions under the laws governing the incident if this were to happen.
We have itemized things that we include in most every spoliation letter involving tractor-trailers:
- The tractor as well as the trailer involved in the wreck, including any cargo it may have been holding and carrying;
- A copy of the truck driver’s daily logs for the entire 24-hour period for the date of the wreck. This request includes any daily log or on-board recording device used by the driver for the six months before the collision up to and including a week after the wreck;
(Drivers are required to keep and maintain a record of their duty status (their daily log of trips pursuant to 49 CFR Section 395.8(a)(1))).
- A copy of the truck driver’s daily logs for the six-month period preceding the date of the collision, as well as any documents that support these logs, pursuant to 49 CFR Section 395.8(k) (1);
(This supporting data and documentation could include any and all bills of lading; freight bills; records of the driver’s dispatches; gate record receipts; gas/fuel receipts; toll station receipts or billing statements; delivery receipts; driver and tractor and trailer inspection reports; damage reports; crash reports; cell phone records and billing statements; traffic citations; and credit card receipts, as required by 49 CFR Section 395.8 and 395.15.)
- A printed copy from any commercial software program used by the truck driver and/or trucking company or any other program which is used to record and audit the driver’s logbook entries for the one year prior to this incident, including the date of the incident;
- A copy of the truck driver’s qualification file pursuant to 49 CFR Section 391.51;
- A copy of the truck driver’s entire investigation history file pursuant to 49 CFR Section 391.53;
- A copy of the truck driver’s medical certificate as well as his entire medical file pursuant to 49 CFR Section 391.51(d);
- A copy of the truck driver’s employment history file pursuant to 49 CFR Section 391.53(c). This should include the driver’s:
- employment application;
- any inquiries into the driver’s employment with other companies;
- the driver’s employment history for the employer on the date of the incident;
- a copy of the truck driver’s CDL specifying the class of the certification for the date of the incident;
- a copy of the certification of road test for the truck driver;
- a copy of all alcohol tests given to the truck driver, pursuant to 49 CFR Section 382.401(b)(1);
- a copy of any positive drug tests for the truck driver, pursuant to 49 CFR Section 382.401(b)(1);
- a copy of any refusal(s) by the truck driver to have a drug or alcohol test performed, pursuant to 49 CFR Section 382.401(b)(1);
- a copy of any accident reports in which the driver was involved pursuant to 49 CFR Section 390.15;
- a copy of all roadside inspection reports pursuant to 49 CFR Section 396.9(d)(3)(ii);
- a copy of all annual inspections involving the driver pursuant to 49 CFR Section 396.21(b);
- a copy of any HAZMAT or other training documents;
- A copy of all existing driver vehicle inspection reports pursuant to 49 CFR Section 396.11;
- Any and all data from the “black box” or any electronic control monitor in the engine or cab or the truck. This includes, but is not limited to, any printout from on-board recording devices such as an on-board computer, tachograph, trip monitor, trip record, trip master, “black box”, ECM, or other recording devices for the day of the incident and the six months preceding the incident;
- Maintenance, inspection, and repair records or any work order for the tractor-trailer involved in this incident for the day of the incident, and for the life of the tractor-trailer preceding this incident;
- A copy of any and all documents related to the purchase, sale, conversion, or modification of the tractor and trailer involved in this incident;
- A copy of any lease contracts or agreements covering the driver or the tractor and trailer involved in this incident;
- Any post-incident maintenance, inspections, repair records, or invoices of any kind regarding the tractor and trailer involved in this instant incident;
- Any weight tickets, fuel receipts, hotel/motel bills, or other records of expenses regarding the driver that was involved in the incident as well as the eight-day period preceding this incident;
- Any trip reports or dispatch records regarding the truck driver or the tractor and trailer involved in this collision for the date of the incident and the eight-day period preceding this incident;
- A copy of the pre-trip inspection report completed by the driver for the trip involved in this instant incident;
- Any emails, electronic messages, letters, text messages, communications via CB radio, mobile or satellite communication systems, in-cab communication devices, memos, or other documents concerning this instant incident;
- Any driver’s manuals, guidelines, directives, policies, rules or regulations given to the truck driver for this instant incident, as well as the materials given to all of the truck drivers for the one year preceding this incident including the date of this incident;
- Any reports, memos, notes, logs, or any other document of any kind whatsoever evidencing any complaints that were ever received regarding the driver of the tractor-trailer involved in this instant incident;
- Any DOT or PSC reports, memos, notes, or correspondence concerning the driver of the tractor-trailer involved in this instant incident;
- Any downloadable electronic data from the truck’s engine regarding the speed of the truck or the operation of the truck for the six-month period preceding this instant incident;
- All records, contracts, and any other documents related to or concerning this instant incident;
- A copy of the common carrier agreement, billing documents, or any document regarding the truck driver being hired for the event at issue in this instant incident;
- All records of any kind related to the last time fuel was put into the subject truck before the incident at issue;
- All records of any kind related to the number of miles the subject truck traveled since the last time it received fuel before this instant collision;
- A copy of any photos taken of the scene of the wreck at any time whatsoever, any photos of the vehicles involved in the wreck, any photos of any people or objects involved in the wreck, including videos, as well as any and all still shots or videos from any drive cam or other video recording device in or on the truck involved in this instant incident;
- All documents which will identify any and all insurers of the tractor and trailer involved in this crash, including, but not limited to, any documents that name the insurance company, the declarations of coverage for the tractor and the trailer, the policy number for the tractor and the trailer, as well as any correspondence sent to or from the insurance company regarding this instant incident;
- All social media accounts held by the truck driver, including, but not limited to, Facebook,
- Instagram, and Snapchat;
- All websites and social media sites for the trucking company;
- Any other information that may be relevant to this instant collision;
- In addition, we would advise them of our desire to schedule a mutually convenient time for our expert(s) to inspect, examine, and potentially perform any necessary test(s) on the tractor and the trailer involved in the incident. We would specifically request that no one make repairs, modifications, adjustments, or take any action whatsoever to the tractor and trailer until the inspection is performed and completed.
Requesting Tractor-Trailer Insurance Policies
In Georgia, we are allowed to request a copy of each and every liability insurance policy applicable to the tractor and trailer which was in force and effect on the date of the wreck. This is allowed pursuant to O.C.G.A. Section 33-3-28. The following is an example of the specific language we use in this request:
Please be advised that the undersigned of the LAW OFFICES OF GARY MARTIN HAYS & ASSOCIATES, P.C. represents the above client for injuries sustained in a collision that was proximately caused by your insured on the above date of injury. You are directed not to have any further contact whatsoever with our client regarding the bodily injury aspect of the claim.
In accordance with the Official Code of Georgia Annotated Section 33-3-28(a), I am requesting that you provide to me within sixty (60) days of receiving this certified letter, a written statement, under oath, of a corporate officer or insurance claims manager of your company, the following information in regard to the liability insurance policy issued by you to your insured:
- Each policy of insurance, including excess or umbrella insurance;
- Name of the insurer;
- Name of each insured; and
- Limits of coverage.
I look forward to receiving the information soon regarding your insured’s policy limits.
All interstate carriers are required to meet minimum safety standards as set forth in 49 CFR Section 385.1. To comply with these standards, the carrier must have in force and effect safety management controls so the following things can be prevented:
- any violation of the commercial driver’s license (CDL);
- not enough funding to cover financial responsibilities;
- using unqualified, untrained, or improperly trained truck drivers;
- the improper use and driving of their trucks;
- the use of unsafe trucks or trailers on the roadways;
- failure to maintain copies of any accident reports;
- using fatigued drivers to operate their trucks;
- inadequate, incomplete inspections, repairs, and maintenance of their trucks;
- the improper carrying and transport of hazardous materials; and
- motor vehicle accidents, as well as incidents involving hazardous materials.
The federal government, through the Federal Highway Administration (FHWA), conducts an annual review of each carrier to see whether or not they complied with these standards. As a result, the FHWA will assign a “safety rating” to the carrier. This rating is based upon the following:
- whether or not the safety management controls are adequate;
- the number, frequency, and severity of any violations of the regulations;
- the number, frequency, and severity of any violations which are identified in roadside inspections;
- the number, as well as the frequency of out-of-service driver and vehicle violations;
- the number and frequency of accidents; and
- the number and severity of violations of any state safety rules or regulations.
It is highly recommended that you perform a search to find the most recent rating that applies to the carrier for your date of incident. The Federal Motor Carrier Safety Administration (FMCSA) designed a system called SAFER (Safety and Fitness Electronic Records) which will provide you with information on motor carriers.
To access the system and retrieve information on a motor carrier, go to their website. Go to the heading under FMCSA Searches, and click on the section labeled “Company Snapshot.” You can then enter in the USDOT Number for the carrier or their MC/MX number, or the carrier’s name. The company snapshot includes background information on the motor carrier, information on their inspections, crashes, and their safety rating.
This site is also extremely useful in locating insurance information. On the company snapshot, you can click on the section labeled “Licensing and Insurance” to learn about potential insurance coverage for the carrier.
Theories of Liability
In these cases, there are so many different allegations that can be made against the truck driver and the trucking company. For example, these could include:
- negligent hiring.
- negligent training.
- negligent retention.
- negligent supervision.
- negligent maintenance of the tractor and/or trailer.
- negligent entrustment.
- failure to follow policies and procedures the trucking company has in place.
- failure to follow the federal motor carrier regulations.
- failure to keep driver’s logs (or maintain them properly).
- failure to monitor the driver’s hours of operating the tractor-trailer.
- driver distractions.
- driving under the influence of alcohol or drugs (including prescription, over the counter, and illegal).
- driver was not familiar with the route.
- shifting of cargo (improper loading or improper securing of the load).
Investigating the Driver of the Tractor-Trailer
To operate a tractor-trailer, the driver must possess a valid commercial driver’s license (CDL). The extra licensing is to ensure the driver knows how to safely operate the extraordinarily large vehicle on the highway. These drivers and the companies that employ them are obligated to follow more stringent regulations than drivers of smaller cars and trucks. 49CFR section 385, Appendix A, is a great summary of the truck driver’s responsibilities when operating a tractor-trailer:
“If a driver, who exercised normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable.”
What are the basic requirements to be eligible to drive a tractor-trailer in compliance with federal regulations? This is governed by 49 CFR Section 391.11, as the driver must be:
- at least 21 years old;
- able to read and speak English sufficiently to carry on a conversation with the general public, as well as to understand highway signs and signals, and to be able to respond to official inquiries and make entries on reports and records;
- able to safely operate the type of commercial vehicle he or she drives by reason of the driver’s training, experience, or a combination of both;
- physically qualified to drive the tractor-trailer pursuant to the Physical Qualifications and Examinations set forth by the regulations;
- holding a current and valid CDL issued only by one State or jurisdiction;
(Please note that there are different classifications for a CDL: Class A, Class B, and Class C. Make sure the driver had the proper class of CDL for the type of commercial vehicle he/she was operating at the time of the incident.)
- able to provide the trucking company that employs him or her a list of all violations he/she has received or the certificate as set forth in Section 391.27;
- qualified to operate a commercial motor vehicle under the rules set forth in Section 391.15;
- able to complete the driver’s road test and be provided with a certificate of the completion of the road test pursuant to Section 391.31.
What kind of knowledge and skills should the truck driver possess when they get behind the wheel of a tractor-trailer? This is governed by 49 CFR Section 383.111. Some of these skills include the following:
- Basic control of the truck
- Carrying cargo while maintaining control
- Communication systems
- Driving up and down mountains and hills
- Emergency maneuvers
- Handling fatigue
- Operation of the truck at night and under extreme conditions
- Perceiving potential hazards on the road
- Safety vehicle controls
- Shifting, backing, and turning
- Skid control and recovery from a skid
- Using air brakes
The ability to safely operate the truck goes beyond just knowledge, skills, and experience. The federal regulations also impose physical minimums to be qualified to drive a commercial motor vehicle. For example, “[A] person is physically qualified to drive a commercial vehicle if that person (1) has no loss of a foot, a leg, a hand, or an arm, or has been granted a skill performance evaluation certificate pursuant to Section 391.49.”
Before a truck driver starts their route/trip, they must perform a pre-trip inspection and document the findings. They have the same obligation of performing a post-trip inspection when they complete their drive unless there are no defects found on the vehicle in the pre-trip inspection. They are required to inspect the following parts of their truck and make sure they are in good working order (see 49 CFR Section 392.7):
- the brakes for both the tractor and the trailer, as well as their connections;
- the parking brakes;
- the steering wheel and the steering mechanism;
- all lights and reflectors;
- the tires on the tractor and the trailer;
- the truck’s horn;
- the truck’s windshield wipers;
- the rearview mirrors; and
- any coupling devices.
They are also obligated to inspect all safety/emergency equipment to make sure these items are in proper working order. These inspection reports must be kept from three months from the date the report was prepared so it is recommended to request these daily reports for the three months before the wreck. It should be noted that the commercial vehicle must also have an annual inspection at least one time in a 12-month period and a copy of this report must be kept with the vehicle (see 49 CFR Section 396.17(c)).
Federal regulations require the driver to understand his/her obligations regarding their applicable hours of service regulations and requirements. This puts the burden for compliance directly on the driver. This also requires all information regarding their driving, off-duty times vs. on-duty times to be logged accurately and truthfully. With this knowledge in mind, they must plan their driving route accordingly, taking into account when they should stop for any breaks, refueling, inspections, and pick-ups/deliveries. It would be wise to have an expert thoroughly evaluate the driver’s logs in any wreck with a tractor-trailer to see if fatigue played an issue in the wreck.
Another area of driver responsibility covers any and all cargo loaded onto any trailer they will be pulling. They must ensure the cargo has been properly loaded and secured, paying particular attention to the weight distribution of the cargo. The duties extend to making sure the load does not spill, leak, blow, or fall from the trailer.
It is the truck driver’s duty to report all traffic violations within 30 days of conviction (this excludes parking tickets). It is interesting that this regulation does not require notice upon receipt of the traffic infraction but only requires it after “conviction.” If the driver’s license is suspended, revoked, or canceled, the driver is required to notify his employer of this fact by the end of the next business day.
It is a good practice to become familiar with the written test that is given for the CDL. Find out what the best practices are to help prevent wrecks from happening so you can thoroughly cross-examine the defendant truck driver on how they could have “anticipated” the event if they were paying attention to the road and circumstances in front of them.
Other factors we investigate:
- was the truck driver speeding?
- improperly changing lanes?
- driving too fast for the conditions?
- did they fail to check in the truck’s “blind” spots?
- were they tailgating (i.e., riding the bumper of any vehicles in front of them)?
- were they in a hurry to meet a delivery deadline?
- were they talking on the phone or radio or using some communication device?
- were they texting or looking at something on their phone?
It is highly recommended you get a copy of the latest edition of the Federal Motor Carrier Safety Regulations pocketbook. Written by J.J. Keller, the book covers the minimum periodic inspection standards and critical regulatory information, including alcohol and drug testing, CDL standards, financial responsibility for motor carriers, driver qualifications, hours of service, vehicle inspection, and so much more.
Investigating the Trucking Company
Federal regulations require all motor carriers to obtain and keep certain background information on any driver before they hire him/her. Most states have adopted the federal regulations which require the carriers to complete a background check on the driver before hiring them.
Under 49 CFR Section 391.21, all drivers applying for employment with a motor carrier must complete a comprehensive application. This application should list any moving violations or accidents for the three-year period prior to the date of the application, as well as listing and specifically identifying each trucking company for whom the driver worked for the previous 10 years.
The obligation for doing due diligence regarding the applicant does not end with the application. Pursuant to 49 CFR Section 391.23, within 30 days of hiring the truck driver, the company must contact the driver’s prior employers for the three-year period prior to the date of hiring and must obtain a moving violations report from any other state which issued a license to the driver within that three-year period. The material the company must request from prior employers is also governed by 49 CFR Section 391.23, and includes the following:
- an employment verification;
- a list of any and all accidents in which the driver was involved, regardless of fault; and
- any violations of alcohol or drug (controlled substance regulations), including the test results.
When your case is in litigation, you should send non-party requests to former employers and determine whether or not the current employer (the trucking company) called or requested in writing information regarding the truck driver’s prior employment with them.
Further, the company has the obligation of ensuring the driver is physically able to operate a tractor-trailer by securing a copy of the medical examiner’s certificate (see 49 CFR Section 391.41 & 391.43).
Finally, the trucking company must give the driver a road test to verify he/she has the skills necessary to operate the vehicle or confirm that the driver has a valid CDL from a jurisdiction that requires the road test as a part of its licensing regimen (see 49 CFR Section 391.31 and 391.33).
In your investigation, you will want to determine the relationship between the truck driver and the trucking company. For example, how was the driver paid? Was it a true employer/employee relationship? Here are some suggested areas of investigation regarding the trucking company:
- When did the employment relationship begin (and potentially end) between the truck driver and the trucking company?
- Was the driver in the course and scope of their employment when the wreck happened?
- Was the driver on a personal mission when the wreck happened?
- Who was the trucking company’s Director of Safety (or Chief Safety Officer) at the time of the wreck?
- What individual(s) was responsible for hiring the defendant truck driver?
- What individual(s) was responsible for the truck driver’s pre-employment screening?
- What individual(s) was responsible for reviewing the truck driver’s application for employment?
- What individual(s) was responsible for making inquiries with the truck driver’s prior employers for the three-year period prior to the date of employment?
- What individual(s) was responsible for making inquiries regarding the truck driver’s moving violations for the three-year period prior to the date of employment?
- What individual(s) was responsible for reviewing the truck driver’s medical certification to ensure they were physically capable of safely operating the truck?
- What individual(s) was responsible for training the defendant truck driver?
- What individual(s) was responsible for ensuring the truck driver was in full compliance with all state and federal laws and regulations?
- Who was the truck driver’s supervisor?
- Who was responsible for ensuring the truck driver had a valid CDL?
- Who was responsible for ensuring the truck driver was medically able and capable of driving the truck?
- Who was responsible for auditing the truck driver’s daily logs?
- Who was responsible for auditing the truck driver’s pre-trip inspection and post-trip inspection reports?
- Who was responsible for reviewing any and all traffic violations and convictions for the driver?
- For any prior traffic convictions, what action(s) was taken to discipline the truck driver?
- What type of training program was in force and effect for drivers at the time of this incident?
- Who was responsible for this training for the truck driver?
- What individual(s) was responsible for maintaining the driver’s qualification file?
- What individual(s) was responsible for conducting the truck driver’s pre-employment alcohol and drug screening?
- What individual(s) was responsible for providing its drivers with educational material regarding federal guidelines, as well as the company’s policies and procedures concerning alcohol and drug testing programs?
- What individual(s) was responsible for performing the drug and alcohol test on the driver (if the wreck resulted in a fatality)?
- What individual(s) was responsible for conducting random alcohol and drug testing on its drivers pursuant to 49 CFR Section 382.305?
- What individual(s) was responsible for ensuring the tractor/trailer was safe for operation on the highway?
- What individual(s) was responsible for ensuring the truck driver was properly trained in securing their cargo, as well as inspecting the cargo?
We also use experts to help us in our investigation of these wrecks. These could be in the field of accident reconstruction, biomechanical engineering, visual acuity experts, human factors experts, or economists. The following items are things the accident reconstruction expert or engineer will analyze:
- Black box recording device (This tracks the truck’s speed and engine performance. It can also record the rate of deceleration, the speed at impact, the braking performance, and the tire/wheel performance.)
- Damage to all the vehicles (and any other objects) involved in the wreck
- Condition of the roadway
- Skid marks or gouge marks in the pavement
- Eyewitness testimony, as well as statements from anyone that came upon the scene post-wreck, such as the first responders (EMTs, ambulance drivers, fire department/rescue), police officers, and wrecker drivers
- Vehicle debris
- Photos of the scene
As the case progresses, we may find out that additional experts need to be retained to investigate other facts that arise in a claim. This is where experience helps — an attorney who has not handled a lot of these claims can waste an inordinate amount of time and money investigating ancillary issues that do not matter instead of focusing on the ones that do.
Also, it is wrong to assume that the investigation only occurs at the beginning of the case. We are constantly researching facts and laws that may add value to our client’s claim — even if we are in the midst of a trial.