In this podcast episode, Josh and Aaron dig into trucking accident cases and share some insight into how we investigate commercial vehicle and 18-wheeler cases at FVF Law. Tune in to learn about all the moving parts in these cases and why it’s important to contact an experienced lawyer right away if you’ve been in a trucking accident.
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Introduction: Thank you for tuning into Summary Judgment where Austin Personal Injury attorneys, Josh Fogelman and Aaron von Flatern, of FVF Law, discuss the ins, outs and in-betweens of personal injury cases.
Josh Fogelman: Welcome back to summary judgment. This is Josh Fogelman, and I’m here with my co-founding partner, Aaron von Flatern. Together we are the two founders of Fogelman and Von Flatern, or FVF Law in Austin, Texas. And we’re here today to talk about the importance of investigating trucking accidents or 18-wheeler accidents. We want to talk a little bit about just generally why it’s important as well as some specific examples of things that need to be done in order to make sure you protect your rights. So Aaron, if you’ll start us off, tell us a little bit about why doing an investigation as soon as possible is really important in a trucking accident case.
Aaron Von Flatern: Man, it’s critical. In a former life, I was an insurance adjuster as a couple of our lawyers were. And I can tell you back then, we were instructed to tell people, “Hey, before you hire a lawyer, why don’t you give me a chance to do you right on this case, on this claim. And if you don’t like my handling, you can go hire a lawyer then.” The problem with that line of thinking is that there is an entire universe of information, documents, evidence that needs to be preserved in order to allow you to discover the truth of what happened and sometimes to allow you to discover if there’s other parties who might be involved, who might even have insurance policies that are necessary for these catastrophic cases.
So the first and foremost thing to understand is the reason we’re here talking about this is that if you’ve been in one of these big rig accidents or even an accident with any commercial vehicle, and you’re thinking to yourself, “I’m not one of those people that hire lawyers. I’d like to try to see if I can navigate this myself.” Listen carefully, because you’re about to hear all the kinds of things that they’re just not going to tell you, and that somehow is going to be deleted, destroyed or just accidentally forgotten by the time you get to the courthouse later, and so now is the time to act. With that segue, Josh, you want to kind of give us an overview of some of the different things and we can kind of jump off from there, describing in more particularly what needs to be preserved.
Josh Fogelman: Yeah, and Aaron, like you said, the importance of preserving evidence or doing the investigation is so that you can identify any of the potential players that need to be involved in the litigation or involved in the claims process before it’s too late, and that means before it’s too late from a statute of limitation standpoint, before you’ve lost your right to pursue a claim, as well as before it’s too late, in that the evidence might otherwise be destroyed. It’s not uncommon to find yourself in a situation where you might have a catastrophic 18-wheeler crash where no one is exactly sure of what happened. So getting out there and preserving things like the ECM, that the onboard computer in the truck itself that preserves data about speeds and distances and times and GPS information, really important stuff that is going to be helpful down the road to unwinding exactly what happened and when, but also things like cellphones, text messages, social media posts, these types of things that while they might be present for some period of time, they can be destroyed or lost or stolen or accidentally deleted, so getting your hands on that information as soon as possible is going to be at a minimum, the type of thing that needs to be done to make sure that you’re properly postured to assert the claim moving forward.
Aaron Von Flatern: Yeah, I think maybe just looking at, one of those ideas is a cellphone, right? Did you know a lot of truckers have two cellphones, they’ve got one with the company, they got one personally with their family, they could be texting or using Facebook on either one of those leading up to the crash, and you’ll never know it because they’re in the background deleting some of that stuff, maybe changing their phones. How many cases have you had where in response to discovery, the defendant writes back, “Well, I don’t have that phone anymore because I changed phones since then.” That’s not really an accident, it might be, but it needs to be immediately stated by lawyers in strongly worded letters to the trucking company that they are to actively locate all relevant evidence, preserve it with proper chain of custody so it doesn’t get lost later.
Cellphones have text messages, computers have emails, imagine the kinds of things that are going back and forth between management and the drivers, both before and after the accident, you’ve got maintenance records, maintenance records are important because you’ve got, say the brakes failed. Well, where did the maintenance occur? We might have another defendant in the case, and if we don’t get them in on time, we could lose our rights to even pursue that avenue. And that’s again, when you’re considering a death or a really catastrophic injury, this stuff is critical, because most trucking companies, they’re required to have about a million dollars of insurance, they’re not going to have a dime more than that if they don’t have to. It’s very important for us to go try to find as many different insurance policies as we can. And then another thing is setting the scene for accident reconstruction, Josh, can you talk about the ECM, the electronic control module that’s on these big tractor trailers and a lot of commercial vehicles. Can you describe what are the things the accident reconstruction folks need to do their jobs and why is it important that they do their jobs?
Josh Fogelman: Sure, well, aside from doing any sort of on the scene investigation that they’re able to do, or in certain catastrophic cases, reviewing the data that’s collected on the scene by the responding officers. Texas Department of Public Safety will oftentimes go out and do their own full accident reconstruction work, but the ECMs will contain a lot of critical information that can help confirm or dispel a theory on how the crash occurred. The accident reconstructionist will oftentimes do a thorough job analyzing the physics of how things happened, looking at impact patterns on the vehicles, looking at gouge marks on the roadways, gathering whatever data they can from the ECMs about speeds or how much force was applied upon impact.
Things about breaking distances, all of these objective pieces of information that really help the accident reconstructionist recreate the crash in a way that helps everybody understand, at least probably or plausibly what might have happened. A lot of these big cases come down to differences of opinion on how the crash happened, and the more information an accident reconstructionist is able to gather and utilize in order to develop their opinions, the more reliable their opinions are going to be. The more reliable their opinions are, the better chance you have to support your case, so gathering the information as quickly as you can and working hard to make sure that you’re preserving those vehicles is really important.
One thing that I’ve recognized in some of the trucking accident cases that I’ve handled too, is if the damage to the truck doesn’t render it a total loss, which considering their size and magnitude is oftentimes the case, these trucking companies and commercial entities they really want to get that truck back on the road. So they’re not motivated the way that the person who has been hurt is going to be motivated to make sure that vehicle is retained in the same or as similar condition as possible as it was at the accident scene so that evidence can be gathered. If you wait too long and you give the trucking company or the owner of the vehicle the opportunity to get that vehicle repaired, you’re losing a really critical and valuable data that should be preserved.
Aaron Von Flatern: Right, and you can just imagine a situation where maybe your client is telling you that this person didn’t have their headlights on or that they didn’t use a blinker, and you go, you finally get to the inspection of the truck and there’s a brand new headlight or a brand new blinker on there, and you say, “What is this?” And they say, “Well, we had to keep using the truck.” Now, it’s all messed up and no one can really tell whether it was actually dysfunctional or not. If you’ve done the right things, if you’ve properly put them on notice and told them that they shouldn’t do that, you can then later use that change, use their loss of evidence against them in court. In certain rare circumstances, you can get a judge to instruct the jury to take what we’re saying as true, because the defendant has lost the relevant evidence that would allow us to prove that it’s true. So the judge might ask the jury to actually assume with us that he didn’t have his turn signal on or didn’t have his headlights on, and that can really change the outcome of a case.
Another big category that I think is a part of every trucking case is employment records. What I was most surprised at when I started learning about trucking records is the medical exams. These over-the road truckers are required to pass medical exams saying that they’re fit physically despite all the prescriptions they’re on, which a lot of times they’re taking various prescriptions, and despite their physical conditions, which often can involve problems of narcolepsy and obesity and things that contribute to narcolepsy. Despite all those issues, they’re often certified to drive on the road by a chiropractor. Not as someone with an MD behind their name. Not somebody who spent four years in medical school and four more years in residency. Somebody who completed a certificate and is calling themselves a doctor. Unfortunately, our regulations are allowing that to happen, and you’ve got to dig into that file to find that. Then you’ve got to go check that chiropractors records and see whether or not this person is being diligent and asking other doctors to get involved when there’s questions that are over their head, or if they’re just a rubber stamp. And that’s just one example of what we can find in the employment records. Josh, what are some of the other issues that make you want to get the employment records?
Josh Fogelman: Yeah, the employment records are really important in a lot of circumstances for a number of reasons. First, when it comes time to establishing the liability of the driver or the carrier, the driver’s employer, you want to understand if you’ve got an unfit driver on the road, how did that happen? You want to understand whether the employer did a good job of researching their potential hire. Understanding what kind of past traffic infractions that employee or that driver might have had. Things like licensure problem, speeding tickets, past crashes, past criminal history, things that are red flags or should have been red flags before the trucking company allowed that person to get behind the wheel of an extraordinarily heavy vehicle. So when you can kind of dig in and find some of those problems, it just really looks bad and helps establish your liability claim, which is a necessary component, of course, of seeking a financial recovery from the trucking company or their insurance company.
But in addition to that, there’s an interesting piece of Federal legislation that’s called the Graves Amendment. And so you have these companies that are in the business of owning fleets of 18-wheelers or other types of commercial vehicles and leasing them out to individuals. For many of those companies that are actually in the business of leasing these vehicles as opposed to being in the business of actually carrying or transporting goods, these companies are exempt from being held liable for the conduct of people who are driving the vehicles that they own, unless you can establish that they were negligent or careless in some way in actually allowing the driver to get behind the wheel of that vehicle.
Looking at any sort of data that the trucking company might have had or should have secured to figure out what they knew about the driver or what they ought to have known about the driver before they allowed them to get behind the wheel of a vehicle can be another avenue towards making sure that you have all the proper parties identified. Which as we know from experience is really important, particularly in catastrophic injury cases, where the amount of the damage is done, the amount of the harms and losses, might far and well exceed the available insurance policies from the driver or the driver’s employer or the trucking company, when you might need to try to tap into an additional insurance policy or pocket. Working to get that employment information is really important. Aaron, there are a variety of categories of information that the law in many instances requires truck drivers and trucking companies to keep and maintain as a part of their file in order to be in compliance with regulations in the industry. Can you talk about some of those and how we have seen those play out in our own experience and getting your hands on some of that mandatory information?
Aaron Von Flatern: Yeah, it’s one of my favorite topics from past cases, talking about the discovery of what we call log violations. The federal and state DOT authorities or Department of Transportation authorities have enacted these rules requiring drivers to track their hours of service. You can understand why that’s important, right? You’ve got drivers who are incentivized to drive as much as possible for as long as possible with these vehicles that weigh 80,000 to 100,000 pounds right next to our families who are on their road trip to Arkansas. And the problem is, it’s a kind of self-reporting system. As to when you took your breaks, what rest you’ve had, did you get enough sleep? The government has enacted a lot of rules about when those breaks have to happen, they’ve left it to the trucking companies to train their drivers on how to fill out the logs.
And unfortunately, there are a lot of entities who have cheated, for lack of a better term. They’ve taken the rules and found loopholes that they can exploit in the oil field. There’s something called the well-site waiting time exception that allows a driver to basically take themselves out of hours of service and claim to be resting when all of the evidence says they’re working and working hard physically on a well site, and then continue to drive a very heavy vehicle down the road. We’ve discovered some of that kind of fraud going on in our cases. All I can tell you is, if you don’t get the logs, you really don’t even know if you’re dealing with a sleep deprivation issue or not. You wouldn’t think that’d be a big a deal, it’s like, “Well, a lot of people are driving tired.”
The studies contradict that. The studies are very clear that drowsy driving is equivalent to drunk driving. If you’ve had a one-hour night sleep and you try to drive the next day, it’s the equivalent of 0.08 BAC, according to the studies that we’ve read. So this is a critical, critical issue, there’s a lot of critical issues and we can’t even get to in this podcast. DOT violation summary reports that are kept by the companies about their culture. You can find all these violations every month. They’re tracking how many speeding tickets they got, how many DOT violations each of their drivers received. You can track their discipline on that. You can track the memos and the safety meetings. You can get the handouts from all their safety meetings and look at the rosters of who signed in for each meeting. When you put the full picture together, you get a sense of what their culture is, and when the culture is putting money and profits over safety, you start to have a really good case. So if you’ve been catastrophically injured or you know someone who has, or there’s been a death, it’s just really important that you reach out to a lawyer, an informed lawyer who knows what they’re doing and has experience in this area. Of course, we’d invite you to call FVF Law, check out our website. We definitely have a lot of information on our blog as well, and if you have questions, you can always call our firm and ask for Josh or Aaron.
Josh Fogelman: Yeah, absolutely, we’re all about education and helping people understand what their rights and options are. It’s really important to know what you’re dealing with and know what kind of battle you’re about to be facing if you or a loved one has been really harmed. In a lot of cases, if you don’t reach out and get that guidance, you’re going to find yourself at a pretty substantial disadvantage in a very important situation. So we’re happy to be that guidance for you. Happy to provide that guidance. If you have any questions for us, please don’t hesitate to reach out. We hope that you found this podcast helpful and thank you so much for tuning in to Summary Judgment.