Auto Accidents with Trucks

Brien Roche

Truck accident lawsuits are hard fought and complex. Our roadways are loaded with large trucks. They are called 18-wheelers. These are mammoth vehicles. They occupy their entire lane. They are driven by experienced drivers. However these drivers make mistakes.

Auto Accidents with Trucks-Causes

There are about 500,000 tractor trailer crashes in the U.S. each year.  Driver error is the most common cause of crashes. However other factors may be weather, road conditions or vehicle performance.

There are an estimated 2 million tractor trailers on the road nationwide.  The primary causes of tractor trailer crashes and how to address those causes are discussed below:

Substances

• The use of drugs. They account for nearly 26% of crashes. Get all U. S. Department of Transportation mandated or allowed testing of the driver involved in the truck accident. This includes testing of alcohol and/or drug usage. Many companies use third-party administrators. Get all of the records from that third-party administrator. This includes how drivers were notified of impending tests. If the driver was given adequate forewarning that would allow time to change behavior. Likewise, the criteria used for labeling a test as negative or positive must be closely looked at. Certainly some medical review officers view the presence of prescription drugs in the results as not requiring a report. The trucking company has a right to know of all drugs, legal or illegal, that the driver is taking. All of this must be disclosed. In addition the company’s response to such info is needed. Therefore any evidence of any drug usage means you must get the entire prescription history of that driver.
• Use of over-the-counter drugs. They contribute to 18% of crashes. Call, or contact us for a free consult.

Speed or Movements

• Speeding or traveling too fast. They account for nearly 23%.
• Failing to use a turn signal or making some other illegal maneuver. This accounts for about 9% of crashes.
• Aggressive driving. This accounts for nearly 7% of crashes.
• Poor evasive action. This accounts for nearly 7% of the crashes.

Lack of Attention

• Being lost or driving in unfamiliar areas. They account for nearly 22% of crashes.
• Failure to check blind spots and observe all sides of the truck before making a turn. They account for 14% of crashes. Certainly these trucks have large blind spots.  As a result drivers must avoid these blind spots. They are at the rear of the truck and the side of the truck.  Likewise the connecting point between the truck and its trailer is a blind spot.  In other words if you can’t see the driver in the driver’s mirrors then the driver can’t see you. You should get out of that spot.
• Fatigue accounts for 13% of crashes. Sleep apnea must be considered. This results from the muscles in the back of the throat relaxing. As a result this blocks normal breathing. It results in the person waking up at night. This waking up may occur many times causing inadequate sleep. Some common characteristics of people with apnea are a deviated septum, allergies, sinus problems, a larger than average neck or obesity. Men over 40 are most likely to have this. As a result you should delve into this issue if fatigue is a factor. Do a thorough investigation of the driver’s medical history. In addition most drivers are paid by the mile. The more time they spend behind the wheel the more money they make. Any downtime for refueling, loading and unloading is not counted within the driver’s paycheck. You need to know about this. Drivers push on when they need sleep. Therefore if it is suspected that a truck driver is asleep at the wheel there are several things to look at:

Exams

• Any pre-employment or employment medical exams called for under the U.S. regs. They report any medication that the driver is on.
• Driver must have a CDL license.  In addition the driver must have a one year medical certificate.  These have to be current.  

Driving Time

• Credit card receipts at gas stations show date and time and place of purchase. However many fueling facilities have agreements with trucking companies not to show date and time. This info should be available from the credit card company.
• Some transponder companies do not record date and time of passing tolls. Therefore get this info from the entity that monitors the toll booths.
• Trucking company manuals are sources of info. They record maximum speeds in various states. This informs drivers as to what time frames they need to record on their daily log. Also the manuals tell the drivers precisely what documents the company will be looking at to determine driving time. In other words this is a message to the driver to make sure that the paperwork is all consistent.
• Some trucking companies only keep driver’s logs for six months. However under the Fair Labor Standards Act they must keep them for a minimum of two years.
• Driver inattention. This accounts for nearly 8% of the crashes. Call, or contact us for a free consult.

Load or Maintenance

• Shifting or falling cargo.
• Faulty inspection and/or improper maintenance. How trucks are maintained needs to be looked at. In a case in Texas a shaft broke off underneath the truck. It flew into an oncoming lane. The 20-pound metal shaft crashed through the window of a car. It killed the driver. The joint holding the shaft in place had melted. There was a lack of oil. This allowed the shaft to rip out of its placement. The lawsuit claimed that the U-joint had not been oiled for at least four to six months before the crash. However the U-joint manufacturer recommended oiling every 5,000 miles. In addition the Plaintiffs asserted that the president of the trucking company knew that the fleet manager lacked the necessary skills to deal with these issues. However he remained in that position. During the discovery it was learned that a mechanic at the truck company knew of other U-joints in the trucks that had failed because of lack of oiling.
• If the trailer is refrigerated then the loading time is much more than if the trailer is a “dry van”. This waiting time is not productive time for the driver. The maximum time that a driver can be on duty in an eight day period is 70 hours. As a result if he is spending 40 of those hours loading and unloading, then that only leaves him 30 hours of time on the road. In other words there may be incentive on the driver’s part to misreport the amount of loading time. Therefore logs and “in” and “out” times at dock facilities are needed.

Weather

Where weather is stormy, raining or really foggy there may be a fact issue for the jury as to whether the driver violated the duty created by the FMCSR to exercise extreme caution under these hazardous conditions and whether such violation was a proximate cause of the crash.  See Kimberlin v. PM Transport, Inc., 264 Va. 261 (2002)

Auto Accidents with Trucks-Investigating

In investigating these crashes, aside from focusing on the causes above, consider the following:

Motor Carrier Issues

• Confirm the trucking company is a motor carrier engaged in interstate commerce.
• Go online to www.ai.volpe.dot.gov which is a website maintained by the U.S. that provides helpful info.
• Study the Federal Motor Carrier Safety (FMCS) Regulations. Also the International Fuel Tax Agreement.  The FMCS Regs. require that drivers record duty status for a 24 hour period.  Furthermore compare these types of logs with fuel receipts, bills of lading, delivery manifests, GPS tracking info and accounting records. This will tell you where the driver was at any time. They will show for how many hours he has been on the road.  Most motor carriers have a license issued pursuant to the International Fuel Tax Agreement.  This statute requires quarterly reports. They show fuel receipts.  Likewise this will show you the extent of driving during any particular period.
• The FMCS Regs. have adopted a model CDL manual.  Gather books used by truck driver schools or defensive driving schools as useful sources of info.

Insurance

• Get copies of all of the policies of insurance. They apply to the tractor, the trailer, the trucking company, their independent contractors, the shipper and the company loading the truck. In addition U.S. law requires the issuance of a MCS-90 Form. It provides unconditional coverage to the public.  This is attached to the primary policy. Therefore the insurer must pay any final judgment. This is whether or not each motor vehicle is described in the policy. The purpose is to provide coverage where the underlying policy does not. In addition it voids lack of notice or cooperation as a defense.   However it only applies to interstate motor carriers.  The minimum coverage is $750,000.  If the tractor and trailer are separately owned then separate policies apply.
• The statutory framework dealing with this issue of coverage is complex.  For companies insured by a policy issued in Virginia, you need to look at Virginia Code § 46.2-706.1, § 46.2-2108.4, § 46.2-2142, § 46.2-2143, § 46.2-2143.1 and § 46.2-2144 which collectively indicate that both the motor carrier and the insurance company have obligations to report to the DMV that the truck was insured for at least the required minimum and the motor carrier was required to keep the truck insured for that required amount.  Case law on the issue confirms that where the terms of the policy conflict with the statute, the statute controls.  State Farm Mutual v. Seay, 236 Va. 275, 280, 373 S.E.2d 910, 913 (1988) and Canal Ins. Co. v. Barker, 358 F.App.’x 470, 474-475 (4th Cir. 2009) which suggests that policy limits will be increased to meet the minimum required under § 46.2-2143.
• The company loading the truck may be an insured under the MCS-90 even though not named on the policy.
• Check the FMCSA’s Analysis and Information website for insurance info.
• Ask for admissions that the truck company is a motor carrier and that it engages in interstate commerce.
• Run a Dunn and Bradstreet report

Electronic Data

• The black box logs offer a wealth of info. This data must be downloaded.
• There is other electronically stored info. For instance computer generated bills of lading or fuel receipts. Also other types of electronic communication between driver and dispatcher.
• Identify anything within the cab that is a source of info. This includes cell phones, texting devices or videos. Also freight tracking equipment and any satellite based navigation or communication system. All of those need to be identified. Finally the data must be extracted.
• When a truck accident occurs the insurance carrier and its lawyers are promptly on the case. However the plaintiff takes time to retain counsel. That lapse is critical. Many important records dealing with the truck accident only need to be retained for six months. Therefore get a letter out to the trucking company requesting that they preserve all records and data relating to this crash. Call, or contact us for a free consult.

Intrastate

• If the truck only operates intrastate check if the state has adopted the U.S. Regs.
• Most of these vehicles weigh over 10,000 lbs. They are commercial motor vehicles if being used for that purpose.  However a landscape pickup truck pulling trailers could qualify.  Although these drivers may not be required to have a CDL, most of the other trucking safety rules apply.

Driver Status

• The driver in many cases is an independent contractor. That does not mean he is not an employee.  Independent contractor is included within the definition of employee if the truck is a commercial motor vehicle.  Likewise owners or operators may be employees. See another page on this site for a look at independent contractor status.

Systemic Issues

• Look for systemic failures within the company.

The Scene and the Truck

• Visit the scene with a trucking expert and/or reconstruction expert. You may need an investigator. She can locate any witnesses not identified on the police report.

Auto Accidents with Trucks-Investigation Made Easier

Truck accident investigation is easier with the advent of the Compliance Safety Accountability Program by the FMCS Administration. The data from CSA must be requested through FOIA. This is designed to identify potentially high risk trucking companies. Also the system uses a number of different factors to provide a rating. Those are:

• safety of the driver
• driver fatigue
• driver fitness
• use of drugs or alcohol
• vehicle maintenance
• cargo problems
• number of reported crashes

However make sure the data you have relates to the company you are dealing with. When a company changes hands it receives a new Department of Transportation number.

In addition, the U.S. has implemented a pre-employment screening program. This is open to carriers relating to potential hires. If the defendant uses that system, if applicable, it will help.

Finally, certain carriers that have been non-compliant with log requirements must have an electronic on-board recorder. These recorders are less susceptible to manipulation. Furthermore in reviewing any data from these recorders be aware of any audits of this equipment. These are conducted so as to identify any changes to the log. Call, or contact us for a free consult.

Service on Foreign Trucker

The FMCSR requires companies to provide process agents in every jurisdiction where they transport.  49 CFR Sect. 366.  They have to file a form designating that process agent.  The bigger companies use blanket companies that maintain process agents in every state.  You can find the process agent by going to the FMCSA website.  

Auto Accidents with Trucks-Standards

Truck accident standards are in the FMCS Regs. However those Regs. are not the only source of standards.  In addition there are industry standards and also standards in the CDL manual.

There are some basic industry standards. Drivers must approach every intersection assuming that cross traffic may not obey the signals. Also drivers must not start a left turn until there is enough time for the rear of their vehicle to clear the intersection without forcing opposing drivers to slow down. Furthermore drivers have a duty of extreme caution when there is bad weather. They must reduce their speed by one-third (1/3).  Those basic rules can be a tremendous help in any truck accident case.  The FMCS Regs carry the force of law.  Industry standards do not.

CDL Manual

The CDL manual is an excellent source of standards. The FMCS Regs require every state to provide a CDL manual. It must contain the basic info and skills that drivers need.  The manual states that drivers need to look 12 to 15 seconds ahead. In addition the CDL manual for the state of the accident and also the CDL manual for the state where the driver is licensed can be used.  Although they may be the same, there may be some slight differences.  

Teaching Material

Another source of standards is the material that the industry uses to teach new drivers. Also these are used to refresh experienced drivers in their various driving schools.  

Preventability Manuals

In addition many companies maintain what are called preventability manuals. They assess whether their drivers acted reasonably in a crash.  There are three commonly used manuals. They are published by the American Trucking Association, the National Safety Council and the Federal Highway Authority.   Also these can be good sources of truck accident standards.

Call, or contact us for a free consult.

Auto Accidents with Trucks-Underride

Underride refers to a car riding under the back of a truck. The U. S. Department of Transportation has standards regarding proper rear-impact guards for tractor trailers. However there is some dispute as to what those rear-impact guards should be. That is how high off the ground they should be. Earlier regs. allowed heights of 30 inches. That may still govern some trucks. However some say the guards should be no higher than 18 inches. There is further dispute about the strength of these guards.

The regs. do not mandate the use of guards that absorb energy through the use of hydraulics. The guards that are on most vehicles at this point are fixed objects. As a result they do not absorb impact. Rather they simply prevent riding under.

The U.S. Regs. may create a federal preemption question. However Congress has not shown any intent to occupy that field exclusively. Therefore preemption should not be a bar to asserting state tort claims.

Side Underride

Aside from rear underride there is also a problem with side underride. The Insurance Institute for Highway Safety reports that there were 1,542 people killed in two-vehicle crashes with tractor trailers in 2015 and that 301 of those involved side collisions.

U.S. Regs. do not mandate any side guards.  However the Insurance Institute says the risk of injury is less with such side guards.

In addition the National Highway Traffic Safety Administration says that trailers with reflector tape on the side are much less likely to have side underride crashes.

Many countries around the world have regs. requiring side guards.  They protect people in cars and on motorcycles.

Auto Accidents with Trucks-Discovery To Driver

Truck accident discovery is critical. Trucks are complex. The relation between the company and the driver is complex. What follows is a series of proposed Interrogatories to the driver and then secondly to the company.

Exams

1. Give the dates and results of all medical exams required by the U.S. Department of Transportation. In addition state the date, name of the examiner, location of the exam and the results.

Record

2. State if you have been involved in any prior collisions or have received any prior traffic citations and if so then give the date, circumstances, and outcome of each.
3. If you have been cited for any violations of the Federal Motor Carrier Safety Regulations either in this incident or any other then give the date, facts of such and the outcome of any such citation.
4. If you have ever been placed out of service for any traffic citation or FMCSR violation state the date, facts and outcome of such.
5. Identify every state that has ever issued you a driver’s license. In addition give the date of such, the current status of that license and the date of any medical authorization issued for such license. Call, or contact us for a free consult.

History and Training

6. Set forth in chronological order your prior employment, the name of the employer, dates of employment, and the reason for separation.
7. Describe all driver training that you have had giving the dates, the name of the company or individual that provided the training and any certificates that you have received.
8. Describe in detail the pre-employment screening process associated with the position that you occupied on the date of this incident giving the date of any such screening and the circumstances.
9. Provide in detail all training that you have received from the company that you were associated with in regards to the vehicle in question in this case.  

Contacts

10. As to any communications between yourself and the company with which you were associated on the date of this incident give the date and time of those communications, the content of those communications, the names of the individuals involved in such communications and the nature of the communications, i.e. text, email, radio, or otherwise.
11. Describe in detail your relationship with any of the other named Defendants to this action as of the date of this incident.

Auto Accidents with Trucks-Discovery to Companies

Owners

1. Identify precisely the owner of the tractor and the trailer involved and describe in detail all signage on either of these. In addition include within your answer the DOT number for each vehicle and all prior business names that you have ever operated under.
2. Set forth in detail your relationship with any other Defendants in this lawsuit.

Driver

3. State whether or not the driver of the vehicle in question was acting within the scope of the employment at the time of the collision.
4. State whether or not the driver who was involved in this collision was tested for the presence of alcohol or drugs after the collision and if so when, by whom, and what the results were of such testing.
5. Describe in detail the employment evaluation process for the driver in question. Also your answer should include but not be limited to the date of the driver’s road test, who conducted it and what the results were.
6. Identify in detail and by name any documents that constitute your safety policy or policies. State in what format they exist, i.e. paper, electronic, or otherwise.
7. Identify all policies concerning driver discipline for violation of any motor carrier safety regulations, stating the name of any such policy manual and state in what format these policies exist, i.e. paper, electronic, or otherwise.
8. State in detail your safety training practices for each driver. In addition identify all training documents and the names of the individuals responsible for overseeing safety as of the date of the incident in question.
9. Detail all factors affecting the driver’s compensation. Also within your answer set forth in detail precisely how the driver was compensated as of the date of this incident.
10. State the date of issuance of the CDL license for the driver of this vehicle and the date of the medical authorization for such license.

Data

11. If the tractor involved in this collision is equipped with any on-board or satellite vehicle tracking equipment or audio or video recording equipment then identify any such equipment. Also state who is the current custodian of any data from that equipment.
12. State who is the current custodian of all log books for the trip in question in this action and identify what form they exist in, i.e. paper, electronic, or otherwise.

The Truck and the Load

13. In regards to the trip that the driver was working at the time of this crash set forth in detail the cargo that was being carried, the trip route, all stops and intended destinations.
14. Identify the manufacturer and model number of the engine of the truck, the truck itself, and the trailer.
15. Set forth the gross and curb weight of the tractor and trailer as of the time of this collision or as of the beginning of the trip in question.
16. How many trucks and trailers do you own and/or lease and how many drivers do you employ or contract with as of the date of this collision.
17. If you contend that there was any equipment failure that contributed to this crash then identify the nature of the equipment that you contend failed. Also identify the nature of the failure, and identify any documents that would evidence any such failure.
18. If the truck in question was leased by you, then identify the date of any inspection of that truck, all documents evidencing any such inspection and in particular what the inspection disclosed.

Contacts

19. Set forth in detail all means by which you communicated with the driver from the beginning of this trip up to time of the collision. Also identify who is the current custodian of any such communications.

Call, or contact us for a free consult. Also for more information on truck accidents see the pages on Wikipedia. Also see the other pages on this site.