Collins & Lacy Trucking Practice Group attorney Charles Kinney talks with Michael Burney about the importance of having a relationship with a legal defense firm that utilizes an established, comprehensive accident response protocol.
Michael Burney: What should you look for in your defense counsel and what are some of the brief recommendations for evidence collection when you are a truck driver or manager of a trucking company and there is a major trucking accident? For instance, should you look for a firm that has developed a highly comprehensive accident response protocol. Charles Kinney is a certified claims professional and certified litigation management professional who defends trucking cases through insurance companies and directly with self-insured groups. Charles, thanks for joining us and let’s start with how a firm like Collins & Lacy responds to major accidents and the resources that the firm brings to the accident scene subsequent investigation. Tell us more about that.
Charles Kinney: Basically, when we get a call that there has been a major truck accident, it could be while I’m sitting at my desk or at 3:00 in the morning when an adjuster is calling my personal cell phone, because they’re located in New Jersey and this is a trucking accident on I-20 here right outside of Columbia and I’ve got to get up and put on my yellow vest and make it out to the scene as quickly as possible. While I’m getting ready or making that drive over to the scene, I’m going to contact a reputable local accident reconstruction company to come down and document the scene. The main thing we’re doing when we get on the scene is documenting as much evidence as possible.
So when I get there, I’ll probably be there before or around the same time as the accident reconstruction engineer, but I’m going to meet him or her on the scene, talking about what’s going on, what information I’ve got from the carrier or the driver, or from the insurance carrier. I’m also going to want to talk to that driver as soon as possible. I want to talk to him about his history, the facts about where he was coming from, where he was going, his version of the accident, what he believes transpired. And then, if possible, I’m going to want to talk to any law enforcement who I might be able to speak to on the scene.
If it’s a major accident, we’re going to have highway patrol, local law enforcement, the MAIT team. They’re going to be out there taking photographs, documenting the scene, they’re going to want to talk to my driver, get statements from him, get statements from any other witnesses, and I want to try and do that too. I want to follow behind them, not impede their investigation whatsoever, but I want to be there trying to get as much information as possible.
One of the first things we have to try to figure out is who am I going to be representing. Am I going to be representing just the motor carrier or the motor carrier and the driver, is there going to be a conflict in representing both of them. We may not know that day, but that’s something we have to parse out pretty quickly. Figure out who it is and who we’re going to be representing.
Most of the time there’s no issue and we’re going to be representing both the motor carrier and the driver. We have to figure out what is the scope of our services. What is it the interest carrier wants us to do? Is it just to get down there and interview the driver, get the accident reconstructionist there, get the data downloaded from the tractor, take photos of the scene, and just be there to accompany them and that could be it; or, this could be a full blown presuit investigation that’s eventually going to lead into practice litigation.
So, when I’m talking to the driver, I want to get their information, their personal information, where they live, how long they have been driving, prior accidents, prior citations. Once I’ve spoken with the driver, I want to contact the motor carrier’s safety manager. Usually I can get them on the phone that day, but if not, I want to talk to them the very next day. I want to one, make sure they know about the accident, two let them know the information I’ve been able to gather, and three put them on notice that they need to preserve all kinds of documents that are required under the federal regs. Hours of service, bills of lading, anything related to that trip driver qualification file, all those kinds of documents need to be preserved and not potentially touched or destroyed.
I also want to get copies of those documents as soon as possible and it often takes them days and sometimes weeks to accumulate all those documents. These large trucking fleets have offices in Jacksonville and Charlotte and in Atlanta, and so they may information in certain places, so we have to collect all that information as well.
Once my accident reconstructionist has all their data together and they’re going to provide me their initial opinions on how the accident occurred and their initial assessment of who is liable. That’s going to be a major determination and that will gage how we’re going to defend this case going forward. If it’s a liability case and liability feels clear against our driver, then we’re just looking at damages and hopefully maybe a potential early resolution of the case. If it does not appear our driver was liable or the driver may have some liability, because South Carolina is a comparative fault state, then we need to hammer that and focus on liability in addition to damages.
Another thing we have here at Collins & Lacy that we use extensively is an in-house investigator. We have a professional, Larry Nelson, who is former law enforcement with the South Carolina Highway Patrol and SLED-trained. We use him extensively to get all kinds of information we need to further defend our case. Locating any eye witnesses and interviewing them, making contact with law enforcement to get copies of their files through FOIA request presuit and once suit is filed through subpoenas to get the full access, interview those law enforcement officers, interview EMS personnel, interview the coroner for talking about someone who has died.
Larry is great at doing all that, he’s done it for years and he’s done this for years with us and he’s a great work source that we’ve got. He can also help with getting those driver records, the driver qualification file, the maintenance file of the vehicle. Larry is one of the best in the business in assisting us with gathering information. He’s probable also going to look at weather reports, see if any other factors could have contributed to the cause such as rain, glare from the sun, or anything like that. He’s going to get local media reports and video. Those are good things to have as well, because by the time I get there, there could be someone who was at the scene and was allowed to leave the scene. If that reporter was there and got an interview with them, then that’s information we need to have.
Another big thing to do is social media checks. You also want to research the motor carrier itself, because a lot of plaintiff attorneys now do not just focus on the accident, they then dig into the motor carrier to see if they are being compliant with the federal regulations. Are they taking all the steps when they hire and train people? Are they continuing their training to keep their drivers up to date? Are they keeping all the documentation like you’re required to keep? If there’s a lot of negative that ends up going against that motor carrier, that could be a much larger award down he road and you’re not just looking at the trucking accident itself.
My main thing is to be proactive. You don’t want to be reactive. You don’t want to be waiting on something to happen. You want to get out there. You want to get as much information and fast as possible. You want to get that accident reconstructionist out there if not the day while the accident is still being investigated, within the next 48 hours. There are road markings and there are things that won’t be there once the normal traffic starts to go on that road again.
Most tractors nowadays have electric control modules that record what’s called event data, which is when a significant event like a hard stop or when an impact occurs then it records all number of data points. If the vehicle goes a certain distance, or if it turns off and restarts a certain number of times, that event data will be overwritten. So, if we can’t get that data it can negatively affect the defense of our case. If we don’t have that data showing that at the time of the collision our driver was going 60 and the speed limit is 65 and they’re alleging he was going 75 or 80, it’s their word against ours. You can get law enforcement reports where they believe that the tractor was speeding too, and without that data it’s hard to disprove that.
MB: So what about the driver on the scene. I know you’re busy with the mindset of collecting all this information when you’re on the scene. But is part of your job also in some way to comfort the driver and, if so, tell us about that.
CK: You’ll get out to a scene and a driver is very shaken up. That often occurs when it’s a real bad accident and you can tell that the person is either seriously injured or deceased. You’re out there to council them, talk them through it, and you’ve also got to be worried about the potential are there going to be criminal charges coming from this. You want to talk the driver through that, you want to speak to law enforcement and see if he or she is going to be charged with anything. So that’s an important a part of my job as well.
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