What should a victim — or more likely family members and friends — do immediately after a catastrophic truck wreck?
In many types of personal injury or wrongful death cases, it doesn’t matter a great deal if one waits several months to even think about talking to a lawyer. So long as evidence is preserved and suit is filed before the statute of limitation expires — two years in Georgia — haste in bringing a claim can sometimes seem, well, almost unsavory.
But interstate trucking cases are different. A couple of ways in which they are different were highlighted at a national seminar for trucking defense lawyers that I attended, very quietly, this week in Chicago.
First, you need to understand the speed with which trucking companies and their insurers spring into action after a truck wreck. One speaker, the risk manager of a major national trucking company, talked about how to manage claims from the first report of the accident. As soon as the truck driver reports the wreck to the dispatcher, the risk manager gets a call at home, even it’s at 3 AM. The risk manager then places a call to their designated defense lawyer in that state — at home at 3 AM. The defense lawyer then retains a claims investigator, under the cloak of “attorney work product,” to immediately go to the scene. Within an hour or two after a crash occurs, the company thus has a claims investigator at the scene seeking evidence favorable to the defense. They will never talk about it at defense lawyer seminars, but I’ve been around too long to be surprised at the idea of an insurance claims investigator making unfavorable evidence, such as logs showing extreme violations of hours of service rules, “disappear” in the post-wreck confusion. Moreover, the trucking company’s defense lawyer may also be at the scene, sitting in his car just out of range of any investigators’ cameras, directing the claims investigator’s activity.
The next step is to begin trying to lull the victim and her family into inaction by promising to “do the right thing,” and perhaps making an offer of settlement that is large enough to be tempting, but at a bargain price in light of what the company knows. The objective is to deal directly with the victim, telling her that she doesn’t need an attorney. Remember that the trucking company and insurance company at that point have a defense lawyer and several claims professionals working on their side, seeking to isolate the victim from professional assistance as long as possible.
Meanwhile, there is a tremendous amount of evidence that may be lost forever if the victim doesn’t have a knowledgeable, forceful attorney who can quickly act to preserve it. The larger trucking companies generally use on-board computers and satellite communication systems that generate an enormous amount of data that may be invaluable to the victim’s case. The companies that provide those services to truck fleets have record retention policies providing that data on truck operations is transmitted to the trucking companies, then purged from the provider’s computer system within 14 to 30 days. The data transmitted to the trucking companies is subject to “modification” and it is extraordinarily difficult and expensive to prove that data was altered.
In addition, trucking companies typically have record retention policies to purge such records in no more than the six months that the Federal Motor Carriers Safety Regulations require for preservation of driver logs, or other retention periods for other records.
There is also “black box” data generated by engine control modules (ECM’s) on all late model road tractor engines. Such data is extremely important in proving the performance of the truck and its drive. It must be downloaded according to manufacturers’ protocols, and if not promptly downloaded may be lost forever.
Without immediately retaining a lawyer who is prepared to immediately demand that the companies preserve a long list of paper records and electronic data after a wreck, the company may well destroy that information according to internal records management policies that are permissible under the Federal Motor Carrier Safety Regulations. If necessary, one may need to file a suit just to require preservation of evidence prior to filing a personal injury or wrongful death case.
Allowing oneself to be lulled into inaction by representatives of a company that is busy gathering evidence favorable to the defense and avoiding preservation of unfavorable evidence, is a tragic outcome for trusting injury victims.
While a highly competent and ethical lawyer who practices in another specialty may have the resources to quickly identify a trucking lawyer, most lawyers really don’t know the ins and outs of trucking cases well enough to take timely and appropriate action. Most of our cases come by referral from lawyers in other specialties with whom we share responsibility and fees. See attorney referrals.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).