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I. Factual Scenario
On a Wednesday afternoon, at approximately 3 p.m., you receive a telephone call from the safety manager for a large corporation with a fleet of trucks which transports freight throughout the country. There has been an accident on Interstate 94 in Black River Falls, Wisconsin, approximately 2 hours earlier, involving one of the company's trucks and a passenger van with two adults and three children in it. According to the information you have been provided, the truck driver was attempting to change lanes and forced the van off the road causing it to overturn in a ditch. The truck driver, upon realizing what happened, immediately locked up his brakes causing the truck to jack-knife and go off of the road. There are serious injuries to a number of the van occupants, and the truck has a ruptured fuel tank. The safety manager is quite concerned about potential claims against his company and has asked you to assist him in handling this matter. What do you do?
The following is a list of roles and tasks typically performed by defense counsel in this type of scenario.
II. Protect the Information Gathered During the Investigation From Discovery.
One of the primary benefits a transportation company can obtain by retaining an attorney immediately after an accident is to protect from discovery information gathered at the scene of an accident, or during follow-up investigations. If it can be reasonably anticipated that litigation will flow from the accident, and the transportation company has retained counsel to protect its interests in this potential litigation, the facts gathered by the defense attorney, or agents of defense counsel, are arguably protected from discovery by the attorney-work-product privilege. In Wisconsin, generally see: Wis. Stat. §804.01(c) and State ex. rel. Dudek v. Circuit Court, 34 Wis. 2d 559, 150 N.W.2d 387 (1967) and State ex. rel. Shelby Mut. Ins. Co. v. Circuit Court, 67 Wis. 2d 469, 227 N.W.2d 161 (1975). An attorney must be aware of this very important role, and become involved in retaining agents to investigate the accident, control the flow of communications and extend the cloak of the attorney-work-product whenever possible.
III. Coordination of Communications
Immediately after a catastrophic accident, there will be a need for the transportation company, and truck driver, to answer numerous questions. The defense attorney should either act as a spokesperson for these clients, or select someone who will provide information under counsel's directions.
These communications may involve:
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Local law enforcement agencies investigating the accident
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Insurance company representatives
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Transportation company representatives
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Retained experts and investigators
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Investigators from the NTSB, DOT, OSHA, EPA
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Media
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Truck driver and family
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Injured victims and family
IV. Retain Experts and Investigators
In order to properly to evaluate potential liability claims, and prepare to defend those claims at some later date, it is essential to retain and immediately dispatch skilled investigators and experts to the accident scene. These individuals typically include:
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An investigator experienced with handling trucking accidents
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An engineer with expertise in reconstructing accidents
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An engineer/mechanic familiar with inspecting and analyzing the mechanical aspects of trucks and other motor vehicles
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An environmental engineer
V. Gather Information From Accident Scene
It is critical the investigators and experts retained by the defense attorney gather the following information:
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Names of all witnesses to the accident
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Interview (obtain statements from) all witnesses
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Photograph accident scene and vehicles
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Take measurements
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Interview local law enforcement agencies regarding status of accident investigation
VI. Gather Data From Truck
It is essential to gather the following data from the truck as soon as possible following an accident:
VII. Gather Data From Trucking Company
The company which employs the truck driver, or otherwise owns or leases the truck involved in the accident, will have a significant amount of information which could prove useful in evaluating and defending a claim. This would include:
- Satellite data regarding truck location
- Qualcom data regarding instructions to the driver
- Employment file on driver (see: 49 C.F.R., §391)
- Maintenance information on truck
VIII. Handling and Preparing Driver
The defense attorney must also make immediate contact with the driver, or in some instances, members of his/her family for the following purposes:
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Counseling/stabilizing driver
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Initial interview with driver, and possible recording of a statement
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Prepare driver for interview by law enforcement and other government officials
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Prepare driver for drug and alcohol testing, pursuant to 49 C.F.R., §382.303
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Retain criminal defense counsel (if necessary)
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Obtain information regarding driver's whereabouts in the future
X. Storage of Truck and Recovery of Cargo
A secondary, but important, concern the defense attorney must be aware of is the property involved in the accident. The owner of the truck and trailer will want to know where their vehicle is being taken and when it will be released to them. The defense attorney should attempt to work with local law enforcement officials regarding the removal of the truck from the scene of the accident and the storage of it during any investigation. Furthermore, the cargo being hauled will ultimately have to be recovered, and taken to its appropriate destination. Again, the defense attorney should be aware of this need, and assist with the release of the cargo for shipment.
XI. Evaluation of Potential Claims and Recommendations for Future Handling
After collecting the information outlined above, it will be important to make an early determination regarding the probable outcome of liability. If it is obvious the accident was caused by driver negligence, or some defect with the truck, strong consideration should be given to making contact with the injured parties, or their family members, and accepting responsibility for the accident and make clear fair compensation will be paid at the appropriate time. This is commonly referred to as an "empathic approach" to handling a claim, and is only appropriate in cases of obvious liability. This approach can potentially limit the client's exposure to damages, and avoid unnecessary litigation.
On the other hand, if the claim is defensible, or there are some doubts as to liability outcome, an aggressive defense-oriented approach should be adopted. This should involve developing a plan for additional investigation and development of defense strategies to be used at trial, in the event claims are made.
This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. |