Why is it important to quickly hire an attorney after a trucking accident?

Every year over 450,000 large trucks are involved in accidents. More than 100,000 people are injured and almost 5,000 people are killed. Trucking companies are required to maintain insurance on their drivers and vehicles. After a wreck is reported to the insurance companies, these insurance companies often employ attorneys, private investigators, and accident reconstructionists to try to minimize liability.

This insurance company wants to quickly gather information that will help the trucking company and its driver defend against any claims made by the people that were injured in the accident and minimize the amount of money paid out by the insurance company and its clients. The insurance company’s lawyers and investigators will immediately reach out to the investigating officers and any witnesses so that they can provide written statements and affidavits. The goal of these written statements and affidavits will be to help the trucking company and its driver – not the people who have been injured.

By quickly hiring a lawyer after a trucking wreck, the injured person’s lawyer can immediately reach out to the investigating officer and any witnesses in order to accurately account for and preserve the memories and records of what happened in the wreck. In addition, the investigating police officer will generate a report. The injured person’s attorney can review the accident report to address any potential issues or problems with accuracy.

In some instances, the attorney can request an addendum or supplement to the report to make sure accuracy is preserved. Additionally, the injured person’s attorney can obtain and review the dash-cam footage, body-cam footage, and 911 audio related to the wreck. All of this information will help the lawyer build the case to obtain the full amount of what the injured person is owed.

In addition to information that can be obtained directly related to the wreck, the injured person’s attorney can immediately send preservation letters to the trucking company and driver letting them know they need to preserve all relevant documents, data, audio, and video, and set forth the legal ramifications for failing to preserve this evidence. These letters are commonly referred to as anti-spoliation letters.

The amount of information in the hands of the trucking company and driver is substantial and can be extremely important to the injured person’s case. Most trucking companies are governed by the Federal Motor Carrier Safety Administration (“FMCSA”) and are issued a Department of Transportation (“DOT”) number. The FMCSA’s mission is to “reduce crashes, injuries and fatalities involving large trucks and buses.”

The FMCSA establishes safety standards and regulations for trucking companies and their drivers, including rules on driver qualifications, hours of service, and vehicle maintenance. In addition, the FMCSA requires trucking companies to retain documentation for specific periods of time-related to these categories:

• Driver Qualification Files: Every trucking company must maintain a file for their drivers. This file includes the driver’s application for employment, a medical examiner’s certificate, road test certificate, and an annual motor vehicle record inquiry. These files must be retained for three years from the date the driver’s employment ends.
• Hours of Service Records: Truck drivers are limited to the amount of time they can drive a truck during a specific time period. Trucking companies and their drivers must keep accurate and complete records of a driver’s hours of service. These records must be retained for six months from the day they were created.
• Vehicle Maintenance Records: Trucking companies must maintain records for all inspections, repairs and maintenance performed on each truck. These records must be retained for one year from the date of the inspection, repair, or maintenance.
• Accident Records: Trucking companies must maintain an accident register for all accidents involving its vehicles. The register must include the date and location of the accident, the number of deaths and injuries, and a brief description of the accident. This register must be retained for three years from the date of the accident.
• Drug and Alcohol Testing Records: Trucking companies must maintain records of all drug and alcohol testing performed on its drivers for five years from the date the records were created. Drivers are to be tested prior to employment, randomly, and after certain injury producing accidents.

All of this information can be extremely important to obtaining the maximum recovery for accident victims. In many instances, trucking companies and the drivers will fail to preserve this information and later play dumb in court by claiming they did not realize the importance of the information and the need to preserve it. Preservation letters clearly set forth the information the trucking company will need to preserve and the legal ramifications for failing to preserve such information.

In Oklahoma, spoliation is the “destruction or material alteration of evidence or the failure to preserve property for another’s use in pending or reasonably foreseeable litigation.” Barnett v. Simmons, 2008 OK 100, ¶ 21, 197 P.3d 12, 20. Spoliation includes “intentional or negligent destruction or loss of tangible and relevant evidence which impairs a party’s ability to prove or defend a claim.” Id. “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” Burlington Northern and Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032. The duty to preserve material evidence “‘arises . . . before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.'” Akins v. Ben Milam Heat, Air & Electric, Inc., 2019 OK CIV APP 52 ¶ 34, 451 P.3d 166 (emphasis in original).

In the event a trucking company or driver fails to preserve information, courts will impose various sanctions, including judgments against the trucking company and driver or adverse inference instructions to the jury. For example, if a trucking company fails to preserve the alcohol and drug test results for its driver following an accident, the court could instruct the jury to assume the driver was under the influence based upon the trucking company’s and/or driver’s failure to preserve the evidence.

Retaining an attorney immediately after an accident allows the injured person the opportunity to keep the trucking company, driver and insurance company honest and make sure everyone is on a level playing field when it comes time to resolving the injured person’s case.