1 HANDLING THE MIDNIGHT CALL PREPARE YOUR EMERGENCY RESPONSE TO A MAJOR TRUCKING ACCIDENT TODAY Presented by: Gary D. Nelson HEYL, ROYSTER, VOELKER & ALLEN 124 SW Adams, Suite 600 Peoria, IL J. Matt Thompson, an associate with Heyl, Royster, Voelker & Allen, assisted in the preparation of these materials. Copyright by Federation of Defense & Corporate Counsel, N. 56 th St., Tampa, FL Reproduction of the contents hereof for noncommercial purposes is permitted.
2 Gary Nelson, Partner in Peoria office of Heyl, Royster, Voelker & Allen, where he began his legal career in He is the Chair of the firm s Insurance Coverage Practice Group and the Truck/Motor Carrier Litigation Practice Group. He concentrates his practice on liability insurance coverage cases for CGL, umbrella/excess, automobile, home, life, health and disability policies, as well as civil litigation and trial in ADR settings, with a special focus on truck and common carrier disputes, construction litigation, and architect/engineer professional liability claims. He graduated from the University of Illinois with a B.A. in 1972 and, after serving in the U.S. Army for two years, returned to the University of Illinois where he graduated from the College of Law in 1977.
4 Before anything else, preparation is the key to success. Alexander Graham Bell Introduction The benefits of thorough preparation are readily apparent. Preparing a response in the event of an emergency is particularly important because, while emergencies are expected, they tend to occur at the most unexpected and inopportune times. Emergencies can occur at any time of day and often involve chaotic surroundings. Every minute that elapses between the occurrence of a major trucking accident and the implementation of an investigative plan will result in the loss of key evidence and witnesses. People and physical evidence will disappear from the scene of an accident quickly. Emergency response personnel will transport all people involved for treatment, police will clear vehicles and debris in order to reopen the road, and witnesses will proceed with their own business. In fact, one author has even analogized a golden hour period for investigating major accidents to the golden hour for treating trauma patients, saying that after twenty-four hours, key evidence to an accident investigation disappears at an accelerating rate. Jim Gourley, Accident Scene Response, Back to Basics 11 th Annual T.I.D.A. Industry Seminar (2003). The lawyer who has developed a plan for responding to a major trucking accident before the accident actually occurs will gather more information and make fewer tactical errors, and in doing so the lawyer will better serve the client than the lawyer who is unprepared. Less time will be needed to develop strategy, resulting in earlier implementation and the collection of more evidence and better witness recollection. The material below contains a suggested approach for responding to major trucking accidents. Obviously, each attorney may have personal preferences that differ from this approach, and some accidents may have unique circumstances that require deviation. However, the important point of this exercise is to develop ideas and strategy for the lawyer in developing his or her own plan for investigating a major accident before the accident occurs. A. The Ideal Attorney The lawyer retained by the insurer should have several characteristics to best serve the insurer and insured driver. First and foremost, the lawyer must have the expertise to handle the claim; otherwise, the lawyer should refer the insurer to a lawyer with the requisite expertise. The first priority is a litigator experienced in handling personal Page 1
5 injury claims. Above and beyond that, the lawyer should have experience in catastrophic injuries and transportation claims because of the unique circumstances that surround these claims that do not appear in the ordinary automobile accident / premises liability circumstances. Additionally, the lawyer should be a practicing litigator in the geographical area where the accident occurred and the claim is likely to be filed. This will provide the client with expertise in the way of local knowledge. As the facts develop and the witnesses who will testify are identified, they can all be filtered through the lawyer s experience with local prejudices, biases, and inclinations of the local judiciary and jury pool. B. Early Attorney Involvement The Advantage of Attorney-Client Privilege One of the principal advantages to the client of early attorney involvement is the attorney-client privilege. It is a powerful tool to protect information from disclosure to adverse parties and to ensure a free flow of available information amongst members of the defense team. This protection also allows the lawyer to act as a funnel through which much of the action and investigation can be passed without coloring or altering it because of a fear of subsequent disclosure of the facts through discovery. Each jurisdiction has different law concerning what communications to the attorney will be protected. The lawyer should be well versed in the attorney-client privilege laws of his or her state before any investigation is commenced in order to best protect information that will come to light throughout the investigation. It is also important for the lawyer to understand what communications to investigators or other third parties will be protected by the attorney-client privilege. The lawyer should advise an insurer how to proceed in investigating the claim in order to protect communications from later becoming subject to disclosure through discovery. For example, in Illinois, where the communication is between an insured and its insurer, the courts have held that in order for the communication to receive attorney-privilege: [A] party need only prove: (1) the identity of the insured; (2) the identity of the insurance carrier; (3) the duty to defend the lawsuit; and (4) that a communication was made between the insured and an agent of the insurer. Rapps v. Keldermans, 257 Ill. App. 3d 205, , 628 N.E.2d 818, 822 (1st Dist. 1993) (citing Hyams v. Evanston Hospital, 225 Ill.App.3d 253, 257, 587 N.E.2d 1127 (1st Dist. 1982)). Page 2
6 The lawyer who is knowledgeable about the attorney-client privilege laws of his or her jurisdiction will be able to advise the client how to proceed with a valuable investigation without compromising the privilege of information uncovered. C. Treatment for those Injured Once the lawyer has been retained to handle a major trucking accident, the lawyer s very first consideration should be to secure proper medical treatment for anyone injured in the accident. The lawyer should advise the insurer of the importance of making sure that anyone involved in the accident receives prompt medical care if it is needed. Not only is this true morally, but nothing could create more damaging press coverage than neglecting to ensure the injured are cared for. This will help protect against any negative associations with the insurer in the minds of the public, who will potentially be members of the jury pool. D. Care for the Driver Medical and as an Intermediary on the Driver s Behalf The lawyer and the insurer should also make certain that the insured driver receives medical care he or she may need. In addition, the driver is likely to be experiencing a high degree of mental and emotional distress following a major accident, and the lawyer and insurer should be certain the driver receives the care and help needed in dealing with this. The lawyer should meet with the driver at the scene as soon as possible and discuss with him the circumstances of the accident, take a statement that would be protected under attorney-client privilege, and caution him regarding making statements to anyone else. Because the driver is likely to have a high degree of anxiety following the accident, the lawyer should act as an intermediary for the driver in several respects. First, the lawyer should act as an intermediary with the police agencies involved to provide them with information they require without direct contact with the driver. The lawyer should persuade the police that the driver is in no condition to give a statement in the time period following the accident due to the driver s emotional condition. Furthermore, the lawyer should assess the need for the driver to retain criminal counsel to represent him, and if necessary, should assist the driver in securing competent criminal counsel. Other agencies or parties aside from the police will also want access to the driver, and the lawyer should go to great lengths to prevent any direct contact with the driver. This may include such groups as the National Traffic Safety Board (NTSB), the U.S. Department of Page 3
7 Transportation, state regulatory agencies, the media, and insurance representatives for other parties involved in the accident. The lawyer should act as an intermediary between the driver and these parties when any statement or other information is sought from the driver. The lawyer should also act as an intermediary between the insurer and these agencies, and the lawyer should convince them that the insurer is cooperating to the best of its ability and attempting to obtain the fruits of the official s investigation as soon as possible. In the same regard, the lawyer can act as an intermediary between the company and the media, to the extent that the accident is one that is being publicized, by putting a local and friendly face on a remote trucking company. E. Drug Testing and Other DOT Requirements The lawyer should assist in making certain that all the legal requirements are met after the accident, and in particular, the lawyer should make certain any required drug and alcohol testing of the driver is completed and documented under the Department of Transportation regulations (49 CFR ). If the driver cannot be tested pursuant to the regulations, a well-reasoned explanation for the failure to have such drug tests taken in the time allotted should be provided to the proper authorities. Additionally, going beyond the minimum legal requirements for drug testing is recommended. This will assist the lawyer in rebutting any accusations of driver drug or alcohol use that may be leveled by a plaintiff s attorney in a subsequent lawsuit. F. Assigning Adjusters Assignment of Adjusters should always be done by the attorney, or at a minimum, the attorney should be part of the deliberative process in selecting an adjuster so that it is clear the adjuster is a member of the defense litigation team. Any report prepared by the adjuster must be directly sent to the attorney, as opposed to being sent to the insurance company, to indicate that the report is preparation for mounting a defense in subsequent litigation. G. Assigning Accident Reconstructionists and Other Experts The lawyer should be able to provide the insurer with an expert witness team necessary to present the optimum defense based upon the seriousness of the accident. The lawyer should select and retain the reconstructionist, or at least be part of the process for selecting the reconstructionist, so that it is clear the reconstructionist is an agent of the Page 4
8 defense team. The lawyer should have agreements in place with the best reconstructionists before an accident occurs so that the reconstructionist can begin work as quickly as possible. In most circumstances, the best accident reconstructionist should be contacted and retained by the lawyer, and the reconstructionist and the lawyer should visit and review the accident scene together. Any reports prepared by the reconstructionist should always be directly sent to the lawyer, as opposed to the insurance company, to indicate the report is preparation for mounting a defense in subsequent litigation. H. Consider Legal Issues During the Collection of Information About the Accident While the facts are being gathered, potential evidentiary problems should become apparent to the lawyer. For those evidentiary problems that will hamper the defense, the facts can be shaped and emphasized in a way that will ameliorate the objections by plaintiff s counsel. On the other hand, those evidentiary issues that will help to keep out evidence that would be detrimental to the defense can be identified and promoted by the lawyer. Additionally, the lawyer should be able to foresee other issues that may appear during litigation (i.e., a potential punitive damages claim), and the lawyer should research how a court would likely rule on those issues. This will assist the lawyer in preparing his or her strategy to defend those issues, and it will allow the lawyer to better advise the client as to the viability of a plaintiff s future claim. The ability of the defense to research and prepare strategy before plaintiff s counsel is ever involved will give the defense lawyer an advantage during any subsequent litigation. I. Gathering Facts and Data Surrounding the Accident Goal is to Freeze the Scene The lawyer, given the expertise and local knowledge, should be able to develop a coherent investigative game plan for gathering and assessing the evidence at the scene of the accident. It is the lawyer s goal to freeze the scene as close to the time of the accident as possible and preserve it so that the evidence will be available at a later time as needed. Frequently, matters that appear insignificant on the date of the accident grow in significance as witnesses recollections and statements are compared and contrasted with the physical evidence. A good lawyer will not only amass, but also assess the evidence for its usefulness at trial, as well as its impact on what further investigation is likely to take place or necessary for the defense. At this juncture, a good lawyer can direct the investigation in a way that will limit the need for discovery at a later date. Page 5
9 The lawyer and investigator or adjuster available at the scene of the accident should work together to share and gather information that is available, and they should discuss tactics or plans for obtaining additional information as they proceed through the accident investigation process. At a minimum, the lawyer should arrive at the accident scene equipped with a high-resolution camera, a video camera, a cellular phone to coordinate with the rest of the investigative team, a tape measure, and a flashlight. These items will be crucial in collecting the best evidence at the scene. The following is a non-exclusive list of information surrounding the accident that the lawyer should ensure is collected by him or the investigator: 1. Driver Information As discussed earlier, the lawyer should meet with the insured driver at the scene as soon as possible and discuss with him the circumstances of the accident, take a statement that would be protected under attorney-client privilege, and caution him regarding making statements to anyone else. Additionally, identification and review of the driver s documents and papers including the log book should be addressed as soon as possible, as well as the invoice, bill of lading, shipping documents, weigh tickets, toll receipts, fuel receipts, etc. The lawyer should also attempt to contact the dispatcher and terminal manager and discuss with them the circumstances of the accident, the driver s activities on the day of the accident and day prior to the accident, and the documentation existing at the terminal for coordination and comparison purposes. 2. Persons Involved The lawyer must ensure that the name, address, telephone number, address, and any other information available about every person involved in the accident is recorded. If this information cannot be collected for any person involved, the lawyer should obtain as much other information about that person as possible, such as a physical description of appearance. People potentially involved will include: the owners and occupants of any vehicle involved in the accident, non-occupants Page 6
10 who were injured or otherwise involved, property owners whose property was involved in the accident. Additionally, the lawyer should determine each person s relative involvement in the accident. The lawyer should identify whether the person was a driver, passenger, bystander, property owner, etc. If the person was a passenger, the lawyer must determine which vehicle the person was in and where in the vehicle the person was seated. a. Injuries / Deaths Additional information must be collected about any party involved that is injured or dies. Family information should be collected, including the person s marital status and number of children or dependents. The nature and extent of the person s injuries should be recorded. The lawyer should obtain the name of the agency that administers treatment (hospital, EMT service, clinic, etc.) and the name of the person or persons that administer treatment (doctor, EMT, etc.). The nature of the treatment administered to the person should also be obtained. In the event of death, the lawyer must obtain the clinical cause of death set forth in medical records and must determine the events of the accident that caused the clinical complications. The date, time, and place of death should also be recorded. 3. Witnesses Similar to persons involved in the accident, the name, address, telephone number, address, and any other information available should be collected about witnesses to the accident. A photograph of the witness is recommended and is often beneficial to a remote case manager as well. If the lawyer is unable to obtain this information, the lawyer should note the characteristics of the person s physical appearance and information about the witness s vehicle. The witnesses should be interviewed, with statements recorded whenever possible. A rapport between the lawyer and the witnesses at this juncture will help down the road when depositions or trial testimony are required. Page 7
11 The lawyer should provide the client a full description of each witness and the witness s projected testimony regarding the accident. If a photograph of the witness is available, it should also be provided to the insurer. 4. Police and Other Emergency Responders The lawyer should first ensure that he or she gathers the names of all police agencies that are in any way involved with the accident. Then, the name, badge number, and agency of every police officer or official involved should be recorded. Additionally, it may be helpful to record the license plate numbers of police cars on the scene, as the license plate numbers can often be matched to the officer driving the car on the date in question. All agencies providing emergency response to the accident should also be identified. This will allow the lawyer to contact the agency at a later date to determine the names of persons dispatched by the agency to respond to the accident. 5. Time and Location of the Accident A simple description of when and where the accident occurred will not suffice. The lawyer should attempt to be as precise in recording both time and location as is possible. In determining the time the accident occurred, the lawyer should of course ask parties and witnesses when the accident occurred. Additionally, though, other methods should be used to determine the precise time of the accident. In this regard, GPS and other satellite safety systems may be useful. Many trucks are equipped with satellite systems that can provide the precise time a truck moves or stops at any location. Additionally, for example, in passenger vehicles equipped with the Onstar system, an emergency signal is automatically relayed to Onstar whenever airbags deploy. This would indicate the precise time of impact. The location of the accident should be determined with similar precision. Of course the state, county, city and roadway where the accident occurs should be gathered, but more precise measurements should be done. Again GPS or satellite safety systems are likely to be useful in determining a precise location according to satellite coordinates. Additionally, the distance from recognizable landmarks should also be recorded. The distance between the vehicles and any mile marker, other road sign, telephone pole, bridge, intersection, overpass, etc., should be Page 8
12 recorded. The distance between these landmarks and any skid marks, debris, or other noticeable marks on the roadway should also be recorded. 6. Weather Conditions / Traffic Conditions Upon arrival at the scene, the lawyer should immediately note the weather conditions and traffic conditions. The lawyer should determine if weather or traffic conditions played any role in causing the accident. 7. Trucks and Other Vehicles Involved Certain information should be collected on all trucks involved, both of the insured and others. The lawyer should record the make, model, year, license plate number, serial number, body type, type of cargo and gross weight for each truck involved. If the truck involved is a combination unit, identification of each vehicle should be made, including the tractor, trailers, and dolly. If a motor carrier operates the non-insured vehicle, the lawyer should record the permit number issued by the Department of Transportation or other state regulatory agency. If the non-insured vehicle is a leased vehicle, both the lessor s and the lessee s name and address should be recorded. For passenger cars and trucks involved, the lawyer should record the make, model, year, body type, vehicle identification number, and license plate number. If the case value is high, the lawyer should recommend the purchase of the salvage vehicles. This will provide the lawyer and insurer access to the vehicles purchased and the recorder on board each vehicle, which they would not otherwise immediately have. a. Photos and Description of Damage to Vehicles Photographs are crucial, and if necessary a professional photographer should be retained. However, on most occasions the lawyer and investigator can identify and photograph the items that need to be preserved, particularly the vehicles with good exposure, for the points of impact on the vehicles and the amount of damage to the vehicles. Photographs of cargo and any damage to that cargo should also be taken. Page 9
13 The lawyer or investigator should also record a detailed written description of the condition of the vehicles and the damage sustained by each. A written description of the cargo of the vehicle and any damage to that cargo should also be recorded. 8. Property Damage Similar to vehicles and their cargo, any other property damage caused by the accident should be photographed, and the lawyer or investigator should also record a detailed written description of the property and any damage sustained. 9. The Accident Scene Photographs of the accident scene are one of the most crucial pieces of evidence that can be collected by the lawyer and investigator, and a professional photographer should be retained if necessary. Under most circumstances, though, the lawyer and investigator can adequately identify and photograph the scene. A vast multitude of photographs must be taken. The lawyer should photograph all vehicles involved in the accident and all damage those vehicles, the rest position of the vehicles, debris, skid marks, contact and gouge marks in the pavement, the highway, all traffic lanes, buildings, any obstructions, etc. Photographs of the highway should be taken at close distances and at a distance that shows whether highway surrounding the accident is a curve or straightaway. Wherever length, width, or other distance is critical, a photograph of a tape measure next to the item should be taken. This should be done in identifying: the length of skid marks, the width of the highway and each lane, the distance between debris on the roadway and the resting point of the vehicles, the distance between landmarks and the resting point of vehicles, the distance between landmarks and debris on the roadway, etc. These photos and measurements will be critical to the work of reconstructionists and engineers who later become involved. Many lawyers have different preferences regarding what should or should not be photographed. However, a lawyer should be cautious in taking any photographs of injured or dead people, as well as blood or bloody artifacts. Those photographs are often used by adverse parties in the courtroom to great effect. Page 10
14 In addition to photographs, a written description of the accident scene and all measurements performed should also be recorded. Everything that is photographed should be described in a written recording. The written description should be as detailed as possible because: 1) there are limits to what a photograph or video recording can show, and 2) the written description provides a backup in the event photographs are lost or destroyed. 10. Sequence of Events Indicated by Evidence Gathered After gathering all of the evidence from the scene and statements of witnesses, the lawyer and investigator should create a written chronological sequence of events surrounding the accident. This should include: the events leading up to the accident, the weather, the time, the road on which each vehicle was traveling, the direction each vehicle was traveling, the point of impact, and any direction and distance of travel after impact. J. Storage of Physical Evidence The lawyer must be concerned about and be certain he or she knows where the authorities are taking the vehicles, vehicle parts, and other pieces of physical evidence. The lawyer should introduce himself to the manager of the storage yards where any of the vehicles are being taken and be sure to provide the manager with the lawyer s contact information. The lawyer should make the manager aware that the lawyer must contacted before any of the vehicles are moved or sold for salvage to allow examination and to prevent potential spoliation of evidence issues. These vehicles will need to be examined by the accident reconstructionist retained or any other expert. Furthermore, if there are materials at the scene that are not being impounded by the authorities, the lawyer must work to preserve as much of that evidence as possible by taking it to the law firm s evidence room. K. Detailed Driver Information Following Close of Scene After the accident scene has been closed, the lawyer must make certain he has all information available about the driver, including the driver s qualification file, personnel file, the results of the drug and alcohol screening, the driver s log book as it existed at the time of the accident, and payroll records pertaining to the driver. L. Communication and Participation With the Insurer Following On-Scene Investigation Page 11
15 The lawyer must be responsive to the insurer and contact the insurer with information as it develops. A good lawyer will be in contact with the insurer, both by phone and in writing, to relay the developing information. The lawyer should be a member of the insurer s claim investigation team. The lawyer s early identification of the issues and assessment of the evidence will be crucial in determining of how the claim will evolve and whether it will be defended vigorously or resolved quickly through settlement negotiations. The lawyer s efforts should be aimed at achieving the insurer s goals based upon insurance company s philosophy on handling claims. The lawyer must ensure that he or she understands the insurance company s philosophy and how it desires to handle this particular type of claim so that the lawyer can tailor his or her actions to develop the information necessary to allow the decision making process to proceed in a rational, calm and calculated manner. Conclusion Implementing a strategy to collect evidence and other information immediately following a major trucking accident is critical. Time to react is in short supply because evidence valuable to the defense will begin to disappear quickly following the accident. Therefore, the defense lawyer must be prepared to respond to a major trucking accident before the accident occurs. A good lawyer will be prepared with a plan for thorough collection of evidence vital to the defense, and must be prepared to implement the plan quickly. The lawyer s investigation lays the groundwork for all that will follow. A thoroughly planned and promptly executed investigation enhances the chances of a great result and eliminates the possibility of a disastrous one. Page 12