Preparing for First Notice of Loss

You can’t change the outcome of the accident, but what you do next may have a tremendous impact on the outcome of the damage claim that is sure to follow. That’s why it is imperative to have an action plan in place before the need arises to respond to situations such as this, and activating an immediate response team is item number one.

Formulating a Plan

A team approach is absolutely required. There are simply too many moving pieces involved in an active or recently active accident-scene investigation for any one person to handle alone. For proof of this, one need look no further than the number of police officers, paramedics, and fire personnel who are dispatched to a major accident scene.

 In recognition of the complexities involved, and the fact that for every minute that passes key evidence and witnesses may be lost, your team needs to be called in immediately. This process is made efficient if there is a previously arranged point of contact available on call 24/7, such as counsel with a pool of experienced investigators and experts who also are immediately available. Regardless of your approach, however, it is essential that a plan be put in place. Woe to those who do not and attempt to line up a team of specialists after hours on a Friday, or worse, 2 a.m. on a Sunday.

Of course, getting boots on the ground as quickly as possible will accomplish little if they are not the right boots. The people chosen for your team need to understand not only that they need to obtain statements, take pictures, and gather evidence but also what questions to ask, what needs to be photographed, and what documents need to be gathered. To the extent possible, they need to act as a conduit between the truck driver and police officials at the scene. They need to look for vehicle debris, tire friction marks, and gouge marks on the roadway that police officers might otherwise miss or incorrectly locate and, if appropriate, have the team’s accident reconstruction expert precisely plot the location of such items of evidence using a total station device. They may need to canvas the neighborhood for witnesses that the police have not yet identified and for exterior security cameras, which may have recorded pertinent events. They may even need to have a mechanic go to a police facility to monitor, record, and/or participate in a mechanical inspection, which could irrevocably alter the condition of the vehicle as it existed at the time of the incident.

Essential Knowledge

In addition to this, your team needs to be intimately familiar with commercial vehicles and the regulations, information, and documentation associated with their operation. With such knowledge, your investigative team will know to look for important items that, if not immediately obtained and preserved, could be lost forever. These include:

Electronic Control Module Data: Virtually every vehicle manufactured today, whether a car or commercial tractor-trailer, has an engine and/or braking system controlled or monitored by a form of onboard computer or electronic control module (ECM). These computers, frequently referred to as “black boxes,” contain data that can be downloaded by qualified experts and may enable them to precisely identify a number of things, including vehicle speed, RPMs, and hard braking and steering inputs at numerous points in time leading up to and including the time of an accident.

This information could prove extremely useful to the investigation of an accident. However, ECMs have very limited capacity, and information stored on the hardware is overwritten constantly by newer data, such as that received by driving the vehicle away from the accident scene. In order to obtain and preserve the information stored in the ECM, consideration should be made not only to secure an expert for immediate download but also, if possible, to ensure that the vehicle is moved from the accident scene by a flatbed vehicle and not a standard tow truck.

Satellite Tracking Data: Some commercial trucks are equipped with a satellite tracking system. This can identify where an equipped vehicle is located at various points in time and, possibly, vehicle speed, direction, and other factors. Like ECMs, the information generated by these systems is electronic, and, hence, it could be lost if not preserved.

Post-Accident Controlled Substance Tests: U.S. Department of Transportation regulations (49 C.F.R. 382.303) require that all truck drivers be tested for controlled substances (drugs and alcohol) promptly after an accident involving vehicular damage requiring towing, bodily injuries requiring immediate medical care, or death. If your team is responding within 24 hours of an accident’s occurrence and the truck driver has not yet undergone required testing, the motor carrier should be advised to direct the driver to a facility for immediate testing.

Headlights, Taillights, and Marker Lamps: In certain accidents, a headlight, taillight, or marker lamp is broken on impact. Expert analysis of the filament within these lamps can sometimes assist in determining whether or not the light was illuminated at the time of the collision. This can prove very useful in cases involving vehicle conspicuity, as well as those in which there is a question as to whether a turn signal was activated.

Driver Daily Logs: Commercial drivers are required by the Department of Transportation (49 C.F.R. 395.8) to keep daily logs, which the driver prepares en route and which reflect where the truck driver has been, during which hours, and in what activities (e.g., off duty, sleeper berth, driving, and on duty not driving). These records may prove pertinent, for example, if speed is an issue in the underlying accident and the driver’s logs reflect that the driver covered a distance of 85 miles in one hour. These records also are often utilized in cases where driver fatigue may be an issue, as they could reflect whether or not the driver was operating his vehicle for more hours than permitted by law or, perhaps, getting too little sleep. The logs also may identify mechanical issues that the driver may have observed on the truck. Inasmuch as the logs for the relevant timeframe leading up to an accident can become lost in the chaos of an accident scene, it is important that your team obtain and preserve these potentially valuable records.

Vehicle Inspection Reports/Pre-Trip Inspection Reports: Documents are required by the Department of Transportation (49 C.F.R. 396.11) that reflect the results of frequent visual and physical inspections of the involved vehicle. Like driver daily logs, these documents can be lost at an accident scene and thus should be located and preserved.

Of course, every accident is different. What may prove important to your accident investigation, and hence to the ultimate outcome of the associated claim, will differ from case to case. Nevertheless, if you have an action plan and a knowledgeable team in place, you can be assured of the best possible results with the least amount of difficulty. In the end, it all comes down to fundamentals. Having the right people in the right place at the right time is the best way to prevent a catastrophic trucking claim from turning into a claim that becomes a catastrophe.