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Truck Crash Litigation: The Honeymoon Phase

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Authored by Ed Rebenack, Esq.

Published in The Middlesex Advocate – Middlesex County Bar Association

The typical relationship starts with the honeymoon phase. Intense feelings of excitement, passion, and anticipation define this early stage. The mind swims in a giddy‐like state fixating on exploration of what is and what can be. This holds equally true for the first phase of a new truck crash case. Proper time, attention, and effort are required to successfully move the relationship to subsequent phases. The initial courtship for the truck crash case begins at the time of case consultation and may last for only a couple of weeks. The following playbook outlines a heathy approach to this new relationship.

Company Snapshot

The phone rings, a consultation is scheduled, and an advance copy of the police crash report arrives by email. The police report unlocks the door to a treasure‐trove of information to show off at the time of the initial client consultation. The Federal Mo‐ tor Carrier Safety Administration (FMCSA) requires various information filings from all trucking companies (motor carriers) that fall under its jurisdiction. A wealth of information contained within the required filings is instantly available at the FMCSA website, affectionately known as the Company Snapshot, https://safer.fmcsa.dot.gov/CompanySnapshot.aspx. The DOT number, Motor Carrier number, or simply the name is enough to search and locate the motor carrier. If law enforcement has per‐ formed a complete investigation, the DOT number will be entered on the police accident report.

Once the motor carrier is found through the Company Snapshot, the user‐friendly website easily navigates the information. The accessible information includes contact information, number of drivers, number of power units, type of operations, interstate versus intrastate, and general classifications of cargo. If the motor carrier is authorized for hire, the website also contains various safety information such as reported crashes, safety violations for the trucks and drivers, the FMCSA’s safety rating for the company, and insurance information. Even Form BOC‐3 is accessible, showing the registered agent in all 50 States for the truck company.

The Rub – The Company Snapshot reports information on a rolling 24‐month period. Thus, delay in capturing the information presents a risk of losing immediate access to certain historical data.

Evidence Preservation Demand Letters

Much too often, truck crash litigation approaches the incident as a singular, isolated event. For example, a truck rear‐ends another vehicle that is stopped for a red light. Liability of the truck driver is obvious and complete. Unfortunately, this one‐night stand approach fails to develop the true value of the case: operational failures. These are the independent claims against the trucking company that are separate and distinct from vicarious liability for the driver’s negligence. Oftentimes the incident is not an “accident,” but more accurately described as a crash that was destined to happen. For example, the negligent hiring of an in‐ competent driver to operate an 80,000‐pound fully‐loaded tractor‐trailer. While a two‐year statute of limitations may provide a lot of time to ghost your file, evidence necessary to prove direct claims against the motor carrier disappears rapidly. Thus, a proper evidence preservation letter tailored to the truck crash and motor carrier operations should be issued to all relevant parties the day representation commences.

The Rub – The Federal Motor Carrier Safety Regulations set forth a table of document retention periods at 49 C.F.R. §379, Appen‐ dix A. Certain classifications of documents have relatively short retention periods. For example, hours of service records are subject to a six‐month retention period.

Order to Show Cause

Preservation letters are necessary and serve their purpose, but wait, there’s more. Preservation of evidence pursuant to authority of the Court makes things real spicy. Some titillating items that scream for an order to show cause with temporary restraints include a physical inspection of the truck, download of electronically stored information from the truck, and the truck driver’s cell phone. This is not the time to be shy when communicating your desires to the motor carrier. The immediate filing of a Verified Complaint with application for an Order to Show Cause seeking injunctive relief for temporary restraints should always prove successful for this situation. As our Supreme Court has noted, “New Jersey has long recognized, in a wide variety of contexts, the power of the judiciary to ‘prevent some threatening, irreparable mischief, which should be averted until opportunity is afforded for a full and deliberate investigation of the case.’” Crowe v. De Gioia, 90 N.J. 126, 132 (1982) (quoting Thompson, Attorney General v. Patterson, 9 N.J. Eq.

624, 625 (E.&A. 1954)). Irreparable mischief has no place in truck crash litigation, and certainly not in the honeymoon phase of your case.

Once the Order to Show Cause is entered and served upon the motor carrier, defense counsel should enter an appearance and make a yeoman’s effort to secure the evidence subject to the Court’s order, lest he or she risk a future spoliation claim. Oftentimes counsel for the parties will agree to a truck inspection, ECM download, and mirroring of the cell phone prior to the re‐ turn date of the Order to Show Cause. The return date will then be addressed by a Consent Order.

The Rub – Often the truck, or access to the truck, will be in the hands of third parties. For example, the truck may be in possession of the towing company and/or an outside insurance adjuster may have sought access to the truck to adjust a property damage claim. The Order to Show Cause should be served upon all third parties that may have possession of, or access to, the evidence.

Inspection of The Truck

A physical inspection of the truck, although intimate, is an important detail for the relationship to your truck crash case. A properly qualified expert will look for and evaluate the relevance of numerous potential factors. Such details may include mechanical malfunctions, improper cargo load and securement, the existence of telematic equipment, contents of the tractor, damage details necessary for accident reconstruction, and of course the climax ‐‐ in‐cab video monitoring and/or exterior video recording.

Access and download of electronically stored information relating to truck operation is an important puzzle piece. Many trucks today are equipped with engine control modules (ECM). These modules may contain second‐by‐second information about the truck’s operation leading up to the crash, such as speed, throttle and clutch use, and braking. A hard brake or deceleration event will trigger the recorder to take a snapshot of these operations’ details for several seconds, sometimes more than a minute, prior to the event and several seconds after the triggering event. The “event” triggering the information snapshot is typically set at a change in speed of 7 mph or more over one second. A download of the ECM may also yield drive‐time data for several days prior to the download. At this point, you may be concerned that N.J.S.A. 39:10B‐8 prohibits the retrieval, obtainment, or use of electronically stored data other than by the owner or the owner’s representative. Alas, an exception is carved out for a “legally proper discovery request or order in a civil action.” N.J.S.A. 39:10B‐8(a)(6).

The Rub – Hard brake and deceleration data is typically stored in a temporary file. Once the truck is put back in service, the temporary files are usually lost, along with the data.

FOIA Demand Letters

As noted above, motor carriers under the jurisdiction of the FMCSA are required to file many different forms containing potentially relevant information to your motor carrier investigation. The documents are subject to public access through a Freedom of Information Act (FOIA) demand. The document production will contain the motor carrier’s bi‐annual MCS‐150 filings which contain some of the information also available on the Company Snapshot. Of particular interest, the filing will identify the motor carrier’s representative who certifies familiarity with the Federal Motor Carrier Safety Regulations, also known as a good person to depose in your case. If the FMCSA has conducted a safety audit of the motor carrier, the audit should also appear in the document response. This report will contain many details about the company’s operations and any violations of the safety regulations.

Finally, the FOIA demand should contain a request for a Certification of Agency Records to ensure admissibility at trial.

The Rub – Due to short staffing and the volume of requests, a response to the FOIA demand may take many months, and in some cases over a year, to receive. For larger motor carriers who have been operating for a long time, specifying a date range helps expedite the response.

Driver Background Searches

The issue of what has come before is sometimes an awkward discussion to initiate. Nonetheless, knowing the history of any past indiscretions is always fair game. Requesting the truck driver’s driving abstract and criminal history is no different. In New Jersey, this information is subject to public disclosure. Although the FMCSRs typically require the prospective employer to review a 3‐year driving history, the abstract will provide many additional years of information including accidents resulting in a police re‐ port and motor vehicle violations. The abstract is a roadmap to obtain the actual police reports and summons dispositions necessary to strengthen certain claims against the motor carrier, such as negligent hiring and supervision. A criminal history may also be relevant to such claims, especially in light of Question 1 Guidance at 49 C.F.R. §391.25.

The Rub – Unlike New Jersey, some states do not allow pre‐suit access to driver abstracts. Instead, a proper subpoena or court order will be required to access this information.

Conclusion

The honeymoon phase of your truck crash case creates a whirlwind of emotions. First impressions can define this early stage. These initial steps help determine whether it is a relation‐ ship worthy of further time and attention. When successfully navigated, enduring love, respect, and understanding of your case is within reach.

Ed is a founding partner at Rebenack, Aronow & Mascolo, LLP (RAM Law). He has been certified by the Supreme Court of New Jersey as a Civil Trial Attorney since 2005 and has been Board Certified in Truck Accident Law by the National Board of Trial Advocacy since 2019. He is a past president of the MCBA (2009-10).

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Phone: (732) 247-3600

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Phone: (908) 448-2560

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