THE PLAINTIFF’S PERSPECTIVE
Escobedo, Tippit & Cardenas, L.L.P
3900 N. 10th St., Suite 950
McAllen, Texas 78501
State Bar of Texas
Prosecuting or Defending a Trucking or Auto Accident Case
September 27-28, 2007 – San Antonio
ACCIDENT INVESTIGATION AND EVIDENCE PRESERVATION IN AUTO AND TRUCKING CASES
Here’s the situation – you’ve either signed up or have been referred a serious trucking case. WHAT NOW? This paper is designed to answer some of those vital questions. While I do not mean to sound presumptuous in saying that this paper will answer all your questions, it should provide the necessary information to assure that you do what is necessary to preserve your new client’s rights in this action. One thing you can be certain, the trucking company will hire the best counsel they can find to defend its interests.
- ACCIDENT INVESTIGATION
Once the case has been opened, you must actively investigate the claim and put into motion all that is required to preserve all relevant evidence.
- The Defense’s Rapid Response Team
With sophisticated trucking companies, it will be difficult to beat the defense to the scene. These trucking companies typically have in-house risk management personnel and the truck driver will have been trained on what to do in case of an accident. I have encountered cases where we have proven that the trucker’s second phone call went to the police; his first phone call was placed to his employer’s risk management personnel. Once the employer is notified about the incident, the defense’s rapid response is put into motion. Risk management personnel and/or defense attorneys are whisked to the scene to assure that their side of the story is reported to the investigating officers. A retained accident reconstruction expert is called in as soon as possible to start their reconstruction of the incident. Within a matter of a few days, the evidence is taken under their control, all witnesses have been spoken to and the investigating officers have been properly lobbied.
Getting to the scene a few days before plaintiffs counsel are even hired is a huge advantage which should not be underestimated. This advantage can be overcome only by taking an active and aggressive role toward investigating the incident and preserving the evidence.
- Notice Letter and Temporary Restraining Order (TRO)
Immediately upon retaining the clients, an investigation must be undertaken to determine the potentially responsible parties. The investigating officers must be contacted to determine the identity of the trucking company and the driver. Once the trucking company is identified, contact information must be ascertained. This can now be easily accomplished via the Internet. Once the trucking company’s address is ascertained, there are numerous sources to ascertain service and citation information. First and foremost, search for a company website; a lot of trucking companies have them and they usually provide a plethora of information. Further, a quick search of the secretary of state’s website for the company’s home state will reveal the information required for service of citation.
Once the contact information is known, a notice or spoliation letter should be sent out immediately.[Examples of notice letters are attached hereto in Appendix A] The notice letter should advise the trucking company whom you represent and that all further contact with your clients should be directed to your office. You do not want to give the trucking company’s adjusters any excuse to try to contact your clients directly. The notice letter should also request that all relevant evidence be preserved. Specific examples of evidence and documents should be listed in the notice letter. While these items will be different from case to case, the following items should be considered in any trucking case:
First, and foremost, the tractor-trailer and all of its component parts
Everything that was in the vehicle at the time of the incident
Driver’s logbooks required pursuant to 49 C.F.R. 395
Documents relating to the subject trip including the driver’s daily log, fuel receipts, dispatch records, trip sheets, bills of lading, pay checks
Post-trip inspection reports
Maintenance and repair records for the subject tractor-trailer
Electronic Control Module (ECM), black box and related data [NOTE: Some of this information will be lost if the ignition is activated after the incident. All information will be lost after tractor is put back in service. ECMs should be removed and retained by qualified experts]
Satellite communication, GPS tracking devices and related data
Radar systems and related data (Eaton VORAD® system)
Onboard communication systems and related data
Truck driver’s driving record and personnel file, including the driver qualification file (49 C.F.R.391), physical examinations, and drug tests
49 C.F.R 390.15 “accident register” for the truck driver and the company
Company training and safety manuals
Post-accident alcohol and drug tests on driver
Once the notice letter is sent out, plaintiffs’ counsel should seek a Temporary Restraining Order (TRO) seeking the preservation of all the items listed in your notice letter. Whether to rely solely on the notice letter to ensure the preservation of the evidence can only be made on a case by case basis. However, deciding that the notice letter is sufficient to preserve relevant evidence can be a dangerous proposition. See Ordonez v. M.W. McCurdy & Co., infra. Numerous factors will affect your decision. A notice letter requesting that all relevant evidence be preserved may be sufficient in a situation where the investigating officers have control over the evidence, as is often the case where criminal charges may be brought against the truck driver. Also, if your notice letter gets a quick response from defense counsel which results in a Rule 11 agreement on the evidence preservation issue, a TRO might not be required. Regardless of the situation, the decision to pursue or not to pursue a TRO to preserve the evidence is one that should not be made lightly.
- Other Documents Related to the Incident
In addition to the evidence and documents that should be requested be preserved by the trucking company, Plaintiffs’ counsel should begin gathering other relevant documents relating to the incident. These documents generally include the following:
Investigative reports from law enforcement, including photographs, measurements, witness statements
Documents relating to the investigation by other insurance companies
Medical records relating to your clients
Emergency or 911 call data
Criminal and civil case history for all drivers
Media reports including print, television and radio
- Documentation of the Scene and the Vehicles
As I mentioned earlier, it will be a rare occurrence indeed where the plaintiffs will beat the trucking company’s representatives to the scene. That being said, it is imperative that the scene and subject vehicles be inspected immediately.
In-house investigators or retained private investigators should be sent to the scene immediately. These investigators can assist plaintiff’s counsel by ascertaining the names and contact information of all witnesses (occupants, eyewitnesses, post-collision witnesses, investigating law enforcement). Photographs of the scene should also be taken in that it may be a few days before accident reconstruction experts may be able to go to the scene. Photographs should also be taken of the vehicles involved. Further, the investigators can interview witnesses. Special caution should be exercised in the recording of witness statements, either by audio/video or written statements. The only person that should determine whether recorded statements are taken is the Plaintiff’s attorney.
- Plaintiff’s Counsel Should Go to the Scene
As I mentioned earlier, it is quite common that the trucking lawyer will be sent to the scene immediately after being notified of the incident. Having a qualified trial lawyer at the scene is a considerable advantage for the defense which can be somewhat alleviated by plaintiff’s counsel going to the scene to coordinate the scene and vehicle inspections. Plaintiff’s counsel’s presence at the scene can also assure a fair and unbiased investigation. Further, plaintiff’s counsel would then be able to direct accident reconstruction experts upon their arrival at the scene.
- Accident Reconstruction Experts
Ideally, the accident reconstruction expert should be retained and taken to the scene within 24-48 after counsel is retained in this case. The sooner the accident reconstruction expert arrives at the scene the better; tire marks on the roadway can begin to fade within 1-2 days after the incident. Rain and excessive travel over the roadway will impact how long the tire marks remain on the roadway. Just as importantly, marks unrelated to the incident may begin to appear on the roadway. A complete discussion of what accident reconstruction experts should do at the scene is beyond the scope of this paper. Suffice it to say, that a competent accident reconstruction expert will know what must be done to completely document the scene. It is imperative that the expert also inspect the vehicles involved in the incident before any changes or repairs are made to them. A Rule 11 agreement via a Notice Letter or a TRO will assure that the expert has access to the tractor-trailer. Accident reconstruction experts can also sometimes interact with the local law enforcement authorities investigating the incident.
- Retention of Truck Safety and Other Liability Experts
Often times, in trucking litigation, other liability experts will be needed in the case. There are numerous issues that arise exclusively in trucking cases. These include applicable Federal Motor Carrier Safety Regulations found in the Code of Federal Regulations ( Title 49, Parts 383-399) and the Texas Administrative Code found at Title 37 (Sections 4.11 and 4.12). Often, accident reconstruction experts will not be intimately familiar with these specific trucking issues. A trucking safety expert should be retained to ascertain the trucking company’s compliance with applicable safety regulations relating to logbook requirements, driver hour requirements and the like.
In other cases, maintenance issues relating to the tractor or the trailer may require the retention of an trucking maintenance expert. The discovery of faulty maintenance on behalf of the trucking company amounts to an independent negligence claim in addition to the respondeat superior claim relating to the truck driver’s negligence. The trucking maintenance expert should be retained and be available for inspection of the tractor and the trailer before the vehicle is put back into service or is repaired.
Other experts may be required to assure the proper downloading of ECMs, black boxes, and similar electronics related to both the tractor-trailer and the other vehicles involved in the collision. As mentioned supra, valuable data may be lost unless qualified experts are retained to preserve and download the data typically produced by these electronic items.
III. EVIDENCE PRESERVATION & SPOLIATION
A party’s duty to preserve evidence in a civil case has received a lot of attention from
Texas courts recently. In 2003, the Texas Supreme Court addressed the issue of whether a party has a duty to preserve material evidence in Wal-Mart Stores, Inc. v. Johnston, 106 S.W3d, 718, 722 (Tex. 2003). In that case, a Wal-Mart employee accidently knocked one or more decorative reindeer from a high shelf onto Johnson’s head and arm. Id. at 720. During the course of the investigation of the incident by Wal-Mart, a Wal-mart supervisor took notes, photographed the reindeer and obtained a written statement from the employee who caused the accident. Id. During the course of the litigation, Johnson asked whether Wal-Mart still possessed the reindeer that fell on him. Wal-Mart responded that they did not have possession of that reindeer but offered to provide a reasonable facsimile. Id. At the trial, the court granted the Johnson’s request for a spoliation instruction to be given the jury based upon Wal-Mart’s failure to keep the reindeer. The Supreme Court held that the trial court had abused its discretion in giving a spoliation instruction because Johnson failed to prove the Wal-Mart “knew, or should have known, that there was a substantial chance there would be litigation and that the reindeer would be material to it.” Id. at 723. See also Trevino v. Ortega, 969 S.W.2d 950, 955 (Tex. 1998) (a trial judge has broad discretion in determining whether to provide a jury with a spoliation presumption instruction.)
In addition to these cases, there have been published opinions relating to spoliation in trucking cases. In Texas Electric Cooperative v. Dillard, 171 S.W.3d 201, 209 (Tex. App.–Tyler, 2005), the appellate court held that the trial judge did not abuse his discretion in instructing the jury on a spoliation presumption. In the Dillard case, the truck driver hit a cow on the roadway; the cow fell dead in the eastbound lane. Thereafter, the plaintiffs collided with the cow which caused their death. Id. at 203-204. The trucking company “admitted that it had destroyed [the truck driver’s] logbook and all other documents regarding” the subject trip. Id. at 209. Plaintiffs established that shortly after the incident plaintiffs’ counsel sent a letter to the defendant advising of their representation. [NOTE: The opinion is silent on whether the letter from plaintiffs’ counsel requested that all evidence be preserved.] The appellate court held that the “record before the trial judge indicated that [the defendant] had knowledge of Dillard’s claim and understood its severity before [it] destroyed [the truck driver’s] logbook and other documents.” Id.
Another case involving trucking cases and spoliation is Whiteside v. Watson, 12 S.W.3d 614 (Tex.App.–Eastland 2000) (vacated pursuant to settlement Jan. 18, 2001). In that case, Watson sued the driver of a dump truck and his employer. Id. at 617. The original of the Driver’s Daily Logs and the Vehicle Inspection Reports were turned in by the driver and the driver would keep a carbon copy for his own records. Id. at 620. The driver’s copies were introduced into evidence and indicated problems with brakes and steering. Id. at 621. After receiving notice of the lawsuit, the president of the trucking company “ordered the originals of these documents…burned pursuant to an unwritten document retention policy.” Id. Based upon this evidence, the trial court allowed an instruction to the jury on the spoliation presumption. Id. The trucking company argued that the spoliation instruction should not have been granted given the fact that copies of the logs and reports had been admitted into evidence. The appellate court countered that given the fact that the president of the trucking company testified at trial that the copies introduced at trial had been “doctored”, the plaintiffs were prejudiced by the destruction of the documents. Id. at 622. See also Union Transports, Inc. V. Braun, 318 S.W.2d 927, 932 (Tex. Civ. App.–Eastland 1958) (defendant’s failure to produce a tacometer which recorded evidence of the speed of the truck was of some probative force on the question of excessive speed of the truck)
In Ordonez v. M.W. McCurdy & Co., Inc., 984 S.W.2d 264, 273-74 (Tex. App.–Houston [1st Dist.]1998), the appellate court held that the trial court did not err in refusing his instruction on spoliation of evidence. A truck driven by an employee of M.W. McCurdy collided with the rear end of a van driven by the plaintiff. Id. at 267. Plaintiffs “presented some evidence showing that McCurdy intentionally destroyed [the truck] driver’s log reflecting his off-duty and on-duty hours.” Id. at 273. McCurdy’s corporate representative testified that driver’s logs were kept for only six months and then thrown away. Id. It should be specifically noted that McCurdy’s corporate representative was questioned at the trial relating the receipt of a notice letter sent by plaintiff’s counsel four days after the incident. The corporate representative testified that it was “possible” that he would have received the notice letter. Id. The court notes in a footnote that the “record does not contain a copy of this letter, and no witness testified that such a letter was actually sent to McCurdy.” Id. at FN12. The appellate court was persuaded by the fact that the logs were destroyed pursuant to “normal business practice” and held that there was “no evidence that the log books were destroyed for the purpose of concealing them from Ordonez.” Id. at 274. The moral of this story is that a notice letter sent without any evidence of receipt will not suffice for spoliation grounds. As I have mentioned earlier in this paper, plaintiff’s counsel should tread very carefully when deciding whether a notice letter will suffice relating to the preservation of evidence.
Critical evidence may be lost or destroyed unless Plaintiff’s counsel does everything within his or her power to assure that the incident is thoroughly investigated and all pertinent evidence is inspected and secured. In a typical trucking case, as opposed to the typical auto accident case, the roles are reversed; the defense will typically arrive at the scene first and the plaintiff’s counsel will be playing catch-up. Once again, this is a huge advantage which should not be underestimated. Only by promptly inspecting the scene and the vehicles and assuring that the evidence is preserved can the plaintiff’s counsel assure that his clients interests will be protected.