Chapter 4: Procedure of Truck Accident Case

Procedure of a Trucking Accident Case

Accident Investigation

What the Insurance Company Has Already Done

As noted above, an insurance carrier begins its involvement in a loss almost immediately. They begin their investigation and defense of their insured, frequently without having many of the facts of loss or even any idea of who was at fault. They employ local defense counsel to create privilege and protect information that may be helpful to an injured party.

Insurance companies and their attorneys may make initial offers to settle claims with injured parties or their families without knowing many of the facts. They dangle seemingly large sums of money to minimize exposure to their companies and their insured.

Insurance companies and defense attorneys also know how expensive and time consuming it is to pursue a case to trial. They may even intentionally delay resolution of a case over a long period of time for this reason.

Sometimes they will go to enormous effort to fight a case or attempt to minimize the amount of damages being claimed. They may make a settlement offer on the lower end of the scale on the theory that the opposing attorney or injured party will not want to incur the substantial expense and investment of time going to trial.

What Evidence Do You Need?

You need to know what evidence the other side has in its possession. What does the police report say? Was anyone cited in the accident? Who have the insurance companies spoken with? Were there witnesses to the collision? Have any experts been retained by the opposition? Is there electronic evidence available such as video or computer data?

Complaint

To file a lawsuit, many documents must be provided to the court. A document called the “complaint” sets forth the facts that support the claim and provides a statement of the legal theories being alleged against the wrongdoer.

The complaint identifies the parties, the circumstances surrounding the accident and the specific laws that support the plaintiff’s cause of action (the basis of the lawsuit). The person filing the complaint is the plaintiff. The person being sued is the defendant.

A lawsuit is usually divided into the following stages:

  1. The information-gathering or “discovery” stage
  2. The pre-trial preparation stage
  3. The pre-trial settlement or alternative dispute resolution stage and
  4. Trial.

In Ohio each court has its own local rules about filing deadlines and setting trial dates. There are also numerous motions concerning issues of law that are often filed in a case and must be decided by the judge. These may involve discovery matters, or legal or evidence questions.

Discovery

After the lawsuit is filed, both sides participate in exchanging information about the case prior to trial in a process called “discovery.” This is a procedural device used to require the adverse party to disclose material facts and documents essential for the preparation of the requesting party’s case. Often this is information that the other party alone knows or possesses.

Discovery narrows the issues of a lawsuit and can also promote the settlement of a lawsuit by providing the parties with opportunities to realistically evaluate the facts before them. The court must deny discovery if it is used in bad faith, or used to annoy, embarrass, oppress or injure the parties or the witnesses.

Privileged information such as confidential communications between an attorney and his client are matters that are not subject to discovery.

In Ohio the rules governing discovery are broad and allow each side much leeway in investigating evidence and witnesses that may be introduced at trial.

Even if the requested information may not appear directly relevant to the case, it may still be obtained if it can be shown it may lead to the discovery of relevant information.

Common Forms of Discovery or Practices Being Followed

Interrogatories

This involves sending and receiving answers to written questions posed to the opposing side. The number of questions asked may be limited depending on local court rules. There will be a specified time within which answers must be provided.

Request for Production of Documents

These are written requests for documents and other materials relevant to the claims made in the lawsuit. Again, each side has a certain amount of time to produce the asked-for documents.

Depositions

A deposition is a face-to-face meeting where attorneys ask questions of witnesses under oath and the session is transcribed. A deposition could last several hours.

Any witness who may offer testimony at trial may be deposed and the content of the deposition can be referenced during trial. The person’s performance at the deposition can have great influence on the success or value of a case.

A lawyer may subpoena a person to produce documents or appear at a deposition or trial. The discovery phase may also include a request that a party submit to a medical or psychological examination to learn more about the person’s health and help evaluate the person’s claim for damages. A judge has considerable discretion to grant or deny this request.

Driver Logs and Related Testimony

Almost certainly the driver will be asked to present his logs for the time period surrounding the accident. The company he works for will be asked what measures it takes to verify the trucker’s logs are accurate. If discrepancies are found here, this could be unfortunate news for both the driver and his company as keeping proper logs is a federal requirement.

Freedom of Information Act (FOIA)

The Federal Motor Carrier Safety Administration (FMCSA) has a “presumption of openness” and records on motor carriers can be requested through the federal DOT or state DOT. For additional information on the Freedom of Information Act, please visit the following online link:
https://www.transportation.gov/individuals/foia/freedom-information-act-foia-reference-guide

Additionally, company safety information is readily available online through the FMCSA at the following: https://www.fmcsa.dot.gov/safety/company-safety-records

Compliance

If one fails to comply with a discovery request, the other side can file a motion to compel compliance. The court considers the process of discovery to be a very serious matter.

Theories of Liability Developed Throughout

In general, if the truck driver is at fault in an accident:

  • The driver could be found liable.
  • The person or company who leased the truck or trailer could be liable.
  • The manufacturer of the vehicle or the manufacturer of its tires or other mechanical parts may be found to have contributed to the cause and severity of the accident.
  • The shipper or loader of the cargo, even the Department of Transportation can be found liable.

Trucking companies are held responsible for an accident caused by its driver if the driver was in the company’s employ at the time of the accident and was engaged in an activity related to that employment.

However, if it can be proven the driver was carrying out an intentional act, or is an independent contractor, then the company may not be responsible. An independent contractor is a driver who does not have to strictly adhere to company policy.

For example, he will decide what route he will take and not have to follow someone else’s instructions. He will also be responsible for safely maintaining the vehicle.

In any event, the insurance company may attempt to go after the trucking company assuming a large company will have deeper pockets and their client might receive a larger award.

Experts

A case will often require the assistance of expert testimony to help the attorney prove one or more elements of the action. The success of a case may hinge on the credibility or knowledge of the experts involved. It is important to furnish the expert with all of the documentation necessary to form his or her opinion.

Sometimes the academic and professional credentials of the expert are extremely important. Other times the ability of the expert to teach and explain their field of expertise or technique to a jury or lay person may be valued more highly.

Attorneys must take into consideration the expense of hiring experts. It is a good idea to attempt to hire experts early in the case as the opposing attorney may have the same person in mind particularly when there are few qualified experts in a field.

During discovery, both parties will be required to provide a list of the expert witnesses they plan to call at trial. Expert testimony may be crucial in proving any number of additional xxx elements of your trucking accident claim. For example, if the injuries are permanent, it will be necessary to use an economist to provide evidence of lost earning capacity, or a life care planner to show the costs or any future medical expenses that may be necessary.

Another expert that may be helpful in a trucking accident case is one that is proficient in FMCSA standards. This expert can do a great deal in determining if log books are correct, if safety inspections were done according to protocol, and if maintenance is up to date. While basic negligence may be apparent, an expert can help identify other areas of concern that could help win or lose a case.

Accident Reconstruction

Results of accident reconstruction are often used by experts in cases involving fatalities and where there have been personal injuries.

Accident reconstruction is the scientific process of investigating, analyzing and drawing conclusions about the events that happened during a collision and what caused them to occur. It also includes visiting the accident site where measurements are taken.

The reconstruction process studies the role of the drivers, the vehicles, the roadway, the evidence left by the vehicles such as point of impact, final resting position, skid, scrub and gouge marks, and the environment where the accident happened. The laws of physics and engineering form the basis of reconstruction analyses and software may be used in calculations as well.

Inspection

Vehicle inspections are another typical part of an accident investigation. These inspections will usually include measuring the amount of damage and the damage profile of the vehicles. The profile is an analysis representing distinctive features of the vehicle and the damage profile measures how much that vehicle was displaced from its original profile.

The mechanical components of the vehicles such as brakes, steering, tires, suspension, lights, etc. may also be inspected and tested to determine if the condition of these components was a cause of the accident.

A pre-trip inspection should always be done before a truck begins hauling freight in interstate or intrastate commerce. After an incident, experts are sometimes asked to determine whether a malfunction was a contributing cause to an accident. It may have to be determined if a repair was properly executed. The maintenance history of the equipment should be reviewed to identify any trends or related maintenance issues.

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