25

Feb

Finding and Preserving Evidence in Truck Accident Claims

Claims arising from accidents between automobiles and heavy trucks frequently result in significant injuries. It is critical that evidence of the events leading up to and during the accidents sequence be discovered and preserved. Hiring an experienced personal injury firm as early as possible is necessary to ensure that critical evidence is not lost or destroyed. An attorney handling truck accident cases should take the following initial steps to help make sure the injured client is treated fairly and that all the important evidence is available to support the claim:

1. The well-prepared attorney will become familiar with the Federal Motor Carrier Safety Regulations. Paying particular attention to these sections:
  • 383 (regulates driver’s license requirements, drug testing and carrier responsibilities);
  • 390 (sets forth carrier requirements, drug testing and carrier responsibilities);
  • 391 (establishes driver qualifications);
  • 395 (governs driver’s hours of operation); and
  • 396 (covers inspection, repair, and maintenance of vehicles).
2. Send a letter to the trucking company by certified mail notifying the company that you represent the plaintiff, identify the basic accident facts (date, time, place, people & vehicles involved) and demand that the company identify and refrain from destroying the documents and evidence that pertains to the case.

Some trucking companies have a document retention policy that may be more concerned with the company’s liability exposure than preserving evidence related to the accident. Under the Federal Motor Carrier Regulations, trucking companies are only required to keep logbooks for a six-month period. Document destruction is an ongoing process for trucking companies unless they are notified of the need to preserve the evidence for purposes of a claim. Otherwise, there is a significant risk that driver hours of operation logs, fuel receipts, weigh tickets and other evidence will be destroyed as soon as the six-month deadline expires. These records often establish that a driver may have been keeping two sets of hours of operation books, driving without taking the necessary rests stops, or exceeding speed limits. Failure to pursue the case quickly and preserve the evidence can result in the destruction of crucial documents that will prove logbook violations and violations of the Federal Motor Carrier Safety Regulations which help corroborate a negligence claim against the driver or trucking company.

  • Demand that the documents be preserved for the 30 day time period prior to the accident.
    If you have reason to believe that a longer time period may be relevant, demand that the documents be preserved for that time period. These documents include the driver’s logbooks, the co-driver’s logbooks if there is a co-driver, trip reports, vehicle and equipment inspections, fuel, lodging and food receipts, weigh station receipts, requests for reimbursement and the supporting documentation, bills of lading, payroll records, training materials, the driver’s qualification file and the results of any drug or alcohol testing performed on the driver before or after the accident.
  • Demand that all information from any on-board tracking, computer, and/or communication devices be preserved.
    Many companies now utilize on-board recording and tracking devices which operate via satellite to monitor the location of drivers. Demand that all information from any on-board tracking, computer, and/or communication devices be preserved.
  • Demand the preservation of any onboard video.
  • Remind the trucking company in writing that destruction of this evidence or any other evidence relevant to the accident is prohibited. These sanctions could undermine the trucking company’s ability to present a defense to the claim.
3. Steps for Investigator/Accident Reconstructionist to Take
  • An investigator and/or accident reconstruction expert should visit the scene, take photographs, videotape and measurements, and examine the vehicles as soon as possible after the collision.
    • If you are fortunate enough to have been hired shortly after the collision, you have the ability to access and preserve evidence at the accident scene such as skid marks, tire marks, bent guardrails, broken median barriers, and pavement gouges.
    • Check the scene for any possible video sources from traffic control lights, neighboring businesses, etc.
  • Locate the tractor trailer and any other vehicles involved in the collision and gain access to all the vehicles.
  • Take pictures and videotape everything including the inside of the vehicles.
    • Pay careful attention to items in the cab area such as prescription and over-the-counter medications, empty containers for medication, and anything indicating that the driver might not have been paying attention to the road at the time of the collision such as papers, books, magazines, food wrappers, maps, a cell phone, or pet supplies.
  • Obtain All Law Enforcement Records Including Narratives and Photos
  • Interview the witnesses listed on the police report and inquire whether they know of other witnesses.
    • In almost every accident involving a tractor trailer, there are witnesses that are not listed on the police report who either saw the collision or stopped to help the victims. In an effort to clear the traffic from the scene and avoid additional collisions, law enforcement officials often ask witnesses to get back in their cars and leave the scene of the accident without getting names and addresses. Don’t overlook tow drivers and 1st Responders!

The sooner an injured person retains an experienced personal injury attorney, the more likely it is that important evidence can be discovered and preserved. This evidence often makes the difference in getting a fair settlement or judgment.

Attorney Joe Troy

Joe Troy is a Shareholder with the Firm. Joe had a long and distinguished career as a Wisconsin Circuit Court Judge and Chief Judge, before returning to private practice with Habush Habush & Rottier in 2007. Joe’s practice is dedicated exclusively to helping people who suffered personal injuries in accidents caused by other people’s carelessness and negligence. He has successfully recovered multi-million-dollar results for his clients in jury trials and settlements, but he has also helped hundreds of people with much smaller claims.

In 2018 he was named Personal Injury Attorney of the Year by Best Lawyers®. In 2004 he was named Wisconsin Trial Judge of the Year by the American Board of Trial Advocates. Joe is Wisconsin’s first attorney to receive these distinctions as both a judge and attorney. Joe uses his unique experience as both a judge and attorney to help people who have suffered injuries which disrupt their lives, jeopardize their financial well-being, and impacts the lives of their loved ones.