Prompt and comprehensive investigation following a truck accident is imperative. It enables the defense to get an advantage on early claim analysis and evaluation and eliminates any future spoliation issues. Any seasoned adjuster or safety manager has likely encountered an accident that seemed straightforward and clearly defensible at first, only to have that claim morph into something much larger and more complicated. While there are many additional investigative actions that will need to be taken after an accident, the steps below are the most important from the time of the accident through the next 24 hours.
1. Speak to the Driver
Speaking with the truck driver and getting pertinent factual information is critical. While the Third-Party Professionals described below will also communicate with the driver, discussing the topics below with the driver will help move the investigation forward.
- Ensure the scene is secure and there are no circumstances that might cause additional accidents or injury. Have the driver turn on hazard lights and set out warning triangles.
- If the tractor-trailer is not located in a dangerous area, instruct the driver not to move it until the Third-Party Professionals listed below arrive at the scene.
- Identify the location of the accident.
- Ask the driver what happened, and why did it happen.
- Obtain the injury status of all parties.
- Obtain any witness names and contact information.
- Instruct the driver to call 911 and report the accident.
- Advise the driver that additional persons (such as the Third-Party Professionals listed below) may be hired on his behalf, and that the driver should cooperate with them.
- Request that the driver photograph the vehicles, any debris from the vehicles, any signage in the area, any skid marks, etc. This is particularly important if law enforcement decides to remove the vehicles from the scene before any Third-Party Professionals arrive.
2. Retain the Appropriate Third-Party Professionals
In a serious trucking accident, it is crucial to immediately retain certain professionals. Every accident is unique, but typically this includes an attorney for the trucking company and the driver, an engineer/accident reconstructionist, and an independent adjuster. In some accidents, the insurance company or the trucking company may want to also hire a criminal defense attorney for the driver. Most trucking accidents occur far from the company’s headquarters, meaning that a Safety Manager or other in-house supervisor will be at a disadvantage in getting the whole story and determining what investigative steps need to be undertaken. Leaving the investigation solely up to the driver will often lead to incomplete and inadequate results.
Each trucking company likely has its own procedures and policies for investigating an accident. Generally, those policies should be followed consistently after every accident. It is advisable to consult with outside counsel when drafting or editing a trucking company’s accident investigation policies.
A. Defense Attorney
Most trucking defense attorneys have a good understanding of what needs to be done immediately after an accident. Hiring an attorney permits certain communications with the driver to be privileged from later disclosure under the attorney-client privilege. A local and experienced defense attorney can manage and direct the investigation for the trucking company and/or its insurer. Lastly, consideration should be given to whether the driver needs a separate criminal defense attorney if criminal charges are brought.
B. Engineer/Accident Reconstructionist
Retaining an engineer is also a highly advisable step following a trucking accident. An engineer can document the scene and take photographs of the vehicles, debris, skid marks, etc. They can also scan the vehicles involved and the accident scene which can enable them to create an animated recreation of the accident. Engineers can gain valuable information by performing an engine download of the truck, and perhaps of any other vehicles involved in the accident. They can also assist in collecting and preserving any video from the cab of the tractor. The more information that an accident reconstructionist has, the more accurate the reconstruction will be.
C. Independent Adjuster
Independent Adjusters can also be very helpful following a trucking accident. They are very skilled at locating and interviewing witnesses, police officers, etc. In some instances, witnesses may be hesitant to speak with a lawyer but may be more willing to speak with an independent adjuster. I’ve had independent adjusters escort drivers to facilities for required drug and alcohol testing, and help get a driver situated at a hotel following an accident. Many times, having an independent adjuster work with the defense attorney helps considerably to complete an investigation.
3. Determine if Substance/Alcohol Testing Is Required
The FMCSA sets forth the alcohol and drug testing requirements for CDL drivers at 49 C.F.R. 382.303.
The chart below summarizes the circumstances when post-accident testing is required.
DOT post-accident alcohol tests should be administered within two hours after the accident and in no event later than eight hours after the accident. DOT post-accident drug tests must be administered within 32 hours of the accident.
If the required post-accident testing is not conducted within the time frames listed above, drug testing attempts should be ended and the trucking company should place a note in its files explaining in detail why the required tests were not completed and what steps were taken to conduct the testing. Some common reasons why testing cannot be completed include the driver being injured and receiving medical treatment, no collection facilities were open, or the driver was detained by law enforcement.
4. Obtain Documents Arising from the Investigation
Police reports will almost always be created and available within a couple of days following an accident, but depending on the nature of the accident, there may also be photographs, measurements, and other evidence created by the investigating officers. In some instances, the investigating officer will share this information, and other times a FOIA request will be necessary. 911 call recordings can also be obtained. Depending on where the accident occurred, there may also be video surveillance from local buildings in the area that captured some or all of the accident. Usually locating and obtaining those surveillance videos will require “boots on the ground”.
5. Collect Driver and Trip Related Documents
There are a number of other documents that may be important to collect, depending on the individual circumstances of each accident. It is advisable to collect the following:
- Driver logs for the past 30 days
- Vehicle maintenance records for the tractor and trailer for the past 2 years.
- Any dash camera video taken of the driver or the accident.
- Driver cell phone call records.
- Pre-trip and post-trip inspection reports.
- The driver qualification and/or employment file for the driver.
- Documents associated with the trip the driver was taking (bills of lading, invoices, fuel receipts, etc).
Obviously, there will be additional procedures needed in an investigation and every accident is unique. However, the steps referenced above are a good start for a complete and thorough investigation.
