Skip to Content
601-265-7766
Coxwell & Associates Coxwell & Associates
Top

What a Real Truck Wreck Investigation Looks Like

Trucks on the road
|

A car wreck case usually starts and ends with the police report. Somebody ran a light, somebody didn't, the officer wrote down which, and the insurance companies work from there. A truck case doesn't work that way and treating it like one is how people end up settling for a fraction of what happened to them. The reason is that a motor carrier is a regulated business. It generates a paper and data trail that a private driver never generates, such as logs, inspection reports, maintenance files, dispatch messages, hiring records, drug testing records, onboard computer data. Almost none of that shows up in a crash report. Most of it can be legally destroyed in three to six months. And nobody is going to hand it over because you asked nicely.

Getting to it is the investigation. Here's what that actually involves.

The first letter matters more than anything else you do

Before anything else, a written preservation demand goes to the carrier and its insurer. It has to be specific, because a general request to "preserve evidence" invites a general response.

It needs to name the electronic logging device data, the engine control module, driver vehicle inspection reports, the maintenance file for that tractor and that trailer, dispatch and messaging logs, any forward-facing or driver-facing camera footage, telematics and GPS data, the driver qualification file, drug and alcohol testing records, the bills of lading, and the vehicles themselves — meaning don't repair them, don't sell them, don't release them to salvage.

Why the urgency. Under 49 C.F.R. § 396.11 a carrier only has to keep driver vehicle inspection reports for three months. Under § 395.8(k)(1) it only has to keep records of duty status and supporting documents for six months. Camera footage isn't governed by any federal retention rule at all and some systems overwrite on a cycle measured in days.

Mississippi doesn't recognize a separate lawsuit for destroying evidence. In Dowdle Butane Gas Co. v. Moore, 831 So. 2d 1124 (Miss. 2002), the Supreme Court declined to create one, pointing instead to the spoliation inference and discovery sanctions. Those tools reach destruction that happened after somebody had a duty to preserve. Routine shredding on the ordinary schedule, before anyone asked, is a much harder problem. The letter is what starts the duty.

The truck is a witness

Heavy trucks carry an engine control module that records vehicle speed, engine RPM, throttle position, brake application, and hard-braking events in the seconds before an impact. Some record a "last stop" record and fault codes going back further. That data doesn't wait for anybody. It gets overwritten as the truck keeps running, and it's routinely lost the day a tractor goes back in service. Downloading it takes the right equipment and someone who knows the protocols for the make, and it usually needs to happen before the truck moves again, which is a reason to get an agreement or a court order early rather than argue about it later.

The trailer matters too. Brake lining thickness, tire condition, the tiedowns, the rear impact guard are physical facts that exist for a short window and then get repaired away.

Two agencies, two sets of paper

This one gets missed constantly.

In Mississippi, a serious commercial vehicle crash often draws both the Mississippi Highway Patrol and a county sheriff's office, and sometimes MBN or a municipal department depending on where it happened. Each agency generates its own reports, its own photographs, its own notes, and its own radio traffic. They don't always say the same thing. Deputies and troopers write independently, from different vantage points, with different training. Where the accounts differ is often where the truth is.

Get all of it, not just the crash report the insurance company sent you. That means the supplemental reports, the field notes, the scene photographs in native format with their metadata intact, the dispatch and CAD records with timestamps, and any body-worn or dash camera video. The timestamps alone will sometimes settle a fight about when something happened.

The carrier's federal file

This is where truck cases are won, and it's why the discovery in these cases looks nothing like an ordinary auto case. Federal law requires a motor carrier to build and keep a driver qualification file under 49 C.F.R. § 391.51 — the employment application, motor vehicle records from every state where the driver held a license, the road test certificate, annual reviews of his driving record, and medical certification. It also requires a separate driver investigation history file under § 391.53 containing what the carrier learned when it checked with the driver's previous DOT-regulated employers.

That second file is the one people forget. Section 391.23 requires a carrier to investigate a driver's safety performance history for the preceding three years — accidents, drug and alcohol testing violations, whether he completed any required rehabilitation. The § 391.53 file shows whether that investigation actually happened or whether somebody checked a box.

Then there's the maintenance file under § 396.3, the daily inspection reports under § 396.11, the annual inspection under § 396.17, the accident register under § 390.15, and the hours-of-service records under § 395.8. You also want the FMCSA safety data. Some of it is public — a carrier's Unsafe Driving, Hours-of-Service, Vehicle Maintenance, Controlled Substances and Driver Fitness scores are all viewable. The Crash Indicator score is not; FMCSA pulled it from public view for property carriers after the FAST Act of 2015. That one comes through discovery.

The other file

If the carrier has a history, it's usually written down somewhere. Prior crash records, prior roadside inspection results, prior out-of-service orders, prior FMCSA investigations, insurance applications and the underwriting file, internal safety meeting minutes, safety director correspondence, and the company's own written policies — all of it goes to what the company knew about its own operation before this happened.

Under Mississippi law, an employer can be liable for negligent hiring or retention "when an employee injures a third party if the employer knew or should have known of the employee's incompetence or unfitness." Parmenter v. J & B Enterprises, Inc., 99 So. 3d 207 (Miss. Ct. App. 2012). The federal regulations supply a lot of the content of "should have known," because they tell you exactly what the company was required to look at before it hired him.

There is a wrinkle in Mississippi worth knowing about. Under Nehi Bottling Co. of Ellisville v. Jefferson, 226 Miss. 586, 84 So. 2d 684 (Miss. 1956), when an employer admits its driver was acting in the course and scope of employment, evidence supporting the direct negligence theories may be excluded. That changes strategy but it doesn't make the investigation pointless because among other things, the punitive damages question under Miss. Code Ann. § 11-1-65 can keep the company's own conduct in the case.

Working with Coxwell & Associates

We have been trying cases in Mississippi for a long time, and the thing that has changed most about truck litigation is how much of it now lives in data that has a shelf life.

What that means practically is that the work starts the day we're retained, not the day suit is filed. The preservation demand goes out. We start running down which agencies responded and what each one wrote. We work on getting access to the tractor and trailer before they're repaired. We identify the people who can still be talked to and the ones who'll have to be deposed. And we start pulling the carrier's federal safety record so we know who we're dealing with before the first pleading.

None of that is exotic. It's just work that has to happen inside a window that's a lot shorter than most people realize.

If you've been hurt in a wreck with a commercial truck in Mississippi, the single most useful thing you can do is get somebody working on preservation quickly — whether that's us or another lawyer who handles these cases. Three months goes by faster than you'd think when you're in a hospital.

Sources

This article is provided for general informational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship. Every case turns on its own facts. Statistics cited are drawn from the public sources listed and reflect the data years indicated; figures are updated periodically by the issuing agencies. If you have questions about a specific situation, consult a licensed attorney. Coxwell & Associates, PLLC, 500 North State Street, Jackson, Mississippi 39201. Free background information available upon request.

Categories: