The first step is to figure out precisely why the accident happened, which is often complex and unclear at first. We quickly gather every piece of evidence available, which is time-sensitive, because some evidence may not be available only a few days after the accident. The trucking company will have its own experts and attorneys at the scene immediately, so you must counter this by getting your attorneys and experts working on the case too.
Scene and Vehicle Inspections are Time Sensitive. We want our experts at the scene as soon as possible so they can (1) inspect and photograph the scene, (2) obtain certain measurements by hand and through computer-aided video equipment, and (3) inspect and photograph the vehicles involved. Our experts will use all of the evidence to reconstruct the accident, second-by-second, and will determine what the commercial truck and its driver were doing in the moments leading up to the accident.
Truck Inspection is Critical. Our Accident Reconstruction Expert will download the electronic data from the commercial truck’s ECM (Electronic Control Module, or “black box”) to determine if the truck had any current fault codes. Within the ECM is an Event Data Recorder that records the commercial truck’s speed, acceleration, and other data second-by-second during the moments before the accident. Our experts will use this data, along with the other available evidence, to determine how the accident unfolded.
Written Discovery of Trucking Company. We will obtain written discovery materials from the trucking company, including post-accident drug and alcohol testing, service-hours logs, driver vehicle inspection reports, HR personnel file for the driver, maintenance and inspection records, and route information. We use these materials to further discover why the accident happened, including whether the trucking company itself played a role in causing the accident, for example, by working the driver too much or knowingly permitting a poor driver to operate.
The liability issues in a trucking case are often complex and multi-faceted.
Vicarious Liability. The trucking company will ordinarily be held liable for its driver’s negligence. Additionally, the trucking company will be liable for its own negligence that contributed to causing the accident, for example, by working the driver too much or knowingly permitting a poor driver to operate.
Other Defendants. Your attorney must carefully evaluate whether other defendants beyond the trucking company and its driver contributed to causing the accident. Potential additional defendants are the truck manufacturer, maintenance providers, and tire manufacturers.
Products Liability. A defect in your own vehicle could have contributed, for example, a defect with your vehicle’s airbag or restraint systems, or fuel system if the vehicle catches on fire. Your attorney needs to have extensive experience handling complex products liability claims in order to assess and handle this potential aspect of your case.
Comparative Negligence. If additional defendants are involved, then your State’s law on comparative negligence will be implicated. This law requires a jury to determine what percentage of responsibility each defendant had for causing the accident.
Comparative negligence law will also be implicated if the victim (you or your loved one) contributed to causing the accident or injuries, for example, by not wearing a seat belt or speeding or some other driving-related offense.
Importantly, you may still recover from the trucking company even if you contributed to causing the accident. For example, if you were driving 5 miles per hour over the speed limit, but the truck driver crashed into to you by leaving his lane or failing to yield the right of way, then it would be reasonable for a jury to assign most of the responsibility for the accident to the trucking company and little responsibility to you. Hence, do not give up on your right to recover even if you may be partially responsible for the accident.
One of the initial critical decisions in any plaintiffs’ case is whether the defendant(s) have enough funds through a combination of their own cash plus insurance coverage to compensate the individuals injured in the accident. As such, your attorney must quickly determine the trucking company’s financial situation and discover what insurance is available.
Liability Insurance. Trucking companies are required to maintain a minimum amount of liability insurance, which varies from $750,000 to $5 million, but sometimes that insurance will not be enough to cover all of the injuries caused by the accident, if your injuries are very severe and/or other parties were injured too in the same accident.
Self insurance and Layered Insurance. Many large companies, including large trucking companies, are self insured for some portion of the first monies paid out to compensate for injuries. After that, the large company will likely have various layers of outside insurance. For example, a trucking company may have the minimum liability insurance for $1 million, followed by some amount of self insurance ($1 million, for example), and then followed by layers of insurance provided by outside insurers.
In this example, the liability insurer pays the first $1 million. If that is not enough to fully compensate everyone injured, then the trucking company is responsible for the next $1 million (self-insurance layer). If that is still not enough, the first layer of outside insurance is at risk, and so on, going up the various insurance layers.
These multiple layers of insurance often complicate attempts to settle cases at mediation. A settlement that includes multiple insurance layers will necessarily require more corporate decision-makers to agree to settle, and to agree on a particular settlement amount. This will often require complex negotiations on how much each layer is willing to pay, and most importantly, dealing with the top layer(s) who will be the most reluctant to pay. Given the complexity of negotiating settlements like this, common in trucking accidents, you need an attorney who has handled very large personal-injury cases that required multi-layered negotiations.
Years ago, the Federal Motor Carrier Safety Administration (FMCSA) conducted a comprehensive study of the leading causes of trucking accidents in the U.S. The FMCSA has announced that it will soon be conducting a new study beginning this year (2020). Until those results are available, the best information we have is based on their 2006 report for their last comprehensive study. For trucking accidents involving a passenger vehicle, the leading causes for accidents listed in rank order were:
Our experts analyze all of the available evidence to determine which of these common causes contributed to causing the accident.
The Federal Motor Carrier Safety Administration (FMCSA) is responsible for the federal regulations that apply to trucking companies. As noted above, the regulations require a minimum level of liability insurance. The regulations also address:
We work with our experts to determine if the trucking company or driver violated any of these regulations, or violated any applicable state and local regulations.