USLAW NETWORK, Inc.: Handling Catastrophic Accident Investigations

The first 24 to 48 hours after an automobile accident involving catastrophic injuries or death can be hectic and stressful for the claims adjuster or safety director. However, this period may be a critical time when measures can be taken to help minimize loss exposure. The purpose of this article is to provide suggestions for handling such claims during the initial phase after notification.

1. Assembling an Investigation Team - After contact with the insured, you may need to begin by contacting counsel in the area of the accident. While hiring an attorney to assist in managing the initial investigation may be more expensive, the involvement of counsel helps to establish attorney-client privilege for investigation efforts. Furthermore, skilled defense counsel will assist in evaluating the claim and the key elements of the case from a more informed perspective than simply hiring a field investigator/independent adjuster. While independent adjusters typically do understand the issues pertaining to liability, they often lack an understanding of the evidentiary issues which may jeopardize establishing and maintaining privilege over their work product and that of others involved in the investigation. Nonetheless, field investigators are necessary as the “eyes and ears” of the adjuster on the accident scene. They are also typically easier to place at the accident scene quickly.   Furthermore, it is generally better to have any witness interviews or other public contact performed by the independent adjuster rather than counsel, since witnesses tend to be more guarded in communication with attorneys, and claimants can be driven to secure their own counsel where they might not otherwise have done so. At any rate, having counsel involved from the outset helps centralize the coordination of efforts, potentially protects investigative material from discovery if a lawsuit is filed, and helps facilitate the preservation of evidence through privilege.

2. Reconstruction and Animation - Physical evidence can be removed from the accident scene by various means, including law enforcement officers, claimants, claimants counsel’s investigators, witnesses, road crews, and more commonly, the weather. As a result, the accident scene may not look the same six months after the accident as it did on the date of occurence.   Thus, hiring someone to perform an accident reconstruction and/or collect data for an accident animation can be critical, particularly in cases where timing, distance, and collision avoidance efforts are at issue. For this reason, it may be advisable to retain a reconstructionist or animation videographer immediately so that they can collect evidence at the accident scene while it is still fresh.

As you can imagine, skid marks, debris fields, and witness memories all fade with time. Reconstructionists can best utilize that data if obtained quickly. Furthermore, promptness will help establish the credibility of your expert witness, whereas a reconstructionist who does not get an opportunity to inspect the scene while it is unaltered may have his or her opinions subject to greater scrutiny. The same concept holds true for an animation videographer who is best able to collect reliable data in the initial phases of investigation. Finally, the prevailing light, temperature, and weather conditions can affect the accuracy of reconstruction and animation efforts. Contact the local weather bureau as soon as possible to learn what these conditions were at the time of the wreck.

3. Controlling the Tort Feasor/Driver - No matter what measures a company has taken to avoid a catastrophic accident, they should be prepared for the worst. To that end, someone, whether it be a dispatcher or other representative of the insured, must be available 24 hours to take a driver's call, ask the appropriate questions, and advise them on how to proceed. Most insured drivers involved in catastrophic injury cases are understandably emotionally overwrought and are often themselves injured in the accident. They are often upset about the condition of the claimants, damage to their person and/or property, and unfortunately, about issues pertaining to their contribution to the cause of the accident, hours of service issues, potential drug tests, and other factors which may compromise their better judgment.

Perhaps the most critical thing that you and your investigation team can do immediately after the catastrophic accident is to gain control over the individuals involved on behalf of the insured. That driver needs to be instructed not to speak to anyone other than counsel, not to provide any written statements, not to destroy, alter or fabricate evidence, etc. In the event that the insured provides its drivers with an accident response kit, which may include contact numbers, witness information sheets and disposable cameras, a driver should do no more than the minimum level of evidence gathering until someone from the investigation team arrives. Unfortunately, an uncontrolled driver can do great damage to defense efforts during the initial investigative phase. He or she needs to be comforted and reassured that their interests are being protected and given advice regarding who and who not to speak to after the accident. Wherever possible, the driver should be moved to a hotel or other secure location where he or she is accessible to the investigation team and no one else.

4.     Preservation of Evidence - There are several different types of evidence relating to a catastrophic accident that need to be preserved. First of all, any evidence at the accident scene needs to be examined by experts, the field investigator, and counsel. Numerous detailed, professional photographs of the scene should be taken so that if the case is litigated, the images utilized during the litigation process are as contemporaneous as possible. For the same reason, quickly obtain copies of any newspaper articles or television footage of the accident, which may contain photographs or witness interviews taken shortly after the accident. Also, the vehicles involved should be preserved to the extent possible. Typically, law enforcement officers will assist in arranging for the vehicles to be towed to a wrecker yard. However, once the vehicles are there, they are essentially available for anyone and everyone to look at and inspect.

If there is liability, and often even when there is not, Plaintiff's counsel may be hired and even physically present at the scene within the few first hours after an accident. There is no reason to make the Plaintiff's investigator or reconstructionist' job any easier by allowing access to the insured vehicle. Unless a hold is placed on the vehicle by law enforcement officers, it is preferable to have the vehicle towed to a secure, neutral location. In any case, identify the towing company(ies) and their employee(s) who responded to the scene, and remind them that no one other than D.O.T. or police officials are to examine a motor carrier' equipment without permission from the carrier.

In addition to the vehicles and evidence at the accident scene, particular care should be taken to preserve any paper documentation which might be relevant. This generally only comes into play in D.O.T. reportable accidents involving tractor-trailer rigs. In such accidents, the log books, bills of lading, and any other paper documentation should be preserved. DOT regulations only require retention of that material for six months, and trucking companies often destroy log books with regard to whether they contain evidence pertinent to an accident. However, for reasons discussed in more detail below, it is preferable to ensure that this material is preserved. Thus, the investigator, attorney, or other person working on behalf of the carrier needs to photocopy the log book entries for the date of the accident, as well as all entries at least a week before and after the wreck for the log books, the bills of lading, and any other document (i.e. fuel receipts, dispatch records, etc.) which might detail the recent driving history of the person involved in the accident.   The insured should also be instructed to retain the originals of those documents. This not only protects the evidence for later use in litigation, but also protects it from potential alteration by an unscrupulous driver.

The final category of evidence which needs to be preserved is electronic data, which might be contained on various recording devices in the subject vehicle. Tractor-trailer rigs are now commonly equipped with Aelectronic control modules@ (AECMs) located on the engine block which record data which may show speed and vehicle condition at the time of the accident. ECM data varies greatly depending on the engine model in the tractor. Some contain very rudimentary information related simply to average RPMs, minimum and maximum speeds run by the vehicle at any time during the engine life, and other relatively non-pertinent bits of information. However, some ECMs are much more detailed and sophisticated, and can include data recorded at the collision event. Some ECMs record sudden deceleration events, such as an impact in an accident, including the precise speed of the vehicle at the time of the deceleration event. Obviously, this information can be very critical to the defense of the catastrophic injury claim. However, ECMs do not retain that data forever. Some ECMs over-write the data immediately after the vehicle is restarted. Some delete it after a certain period of time. Still others retain the data only as long as electricity is provided to the engine. As a result, it may be necessary to immediately download the data from the ECM in order to insure that it is preserved. In other cases, ECMs have been removed and placed on a Adummy@ engine for preservation. If necessary, entire engine blocks can be removed for that purpose. Exactly what type of ECM exists in any particular case varies greatly depending on engine manufacturer and model. The preferred course is to contact a local dealer to discuss the download of the ECM data. This can usually be done for a modest charge, without moving the vehicle. Furthermore, the truck may also contain other electronic equipment which has recording capabilities, including Qualcom communication units, Vorad collision avoidance systems and other protective electronic devices. It is best to discuss this issue in some detail with the driver, the driver=s dispatcher, and vehicle owner, as well as a representative of the manufacturer of the engine or of the tractor itself, in order to ensure that all the bases have been covered to preserve electronic evidence.

The import of all preservation of evidence is that there is a very strong doctrine of spoliation of evidence in many jurisdictions. Where evidence is destroyed by willful act or by omission, the opposing party may be entitled to argue during trial and to present a charge to the jury indicating that only a guilty conscience would allow evidence to be destroyed.   For instance, in Alabama the jury is typically instructed as follows:

In this case, the Plaintiff claims that the Defendant is guilty of wrongfully destroying, hiding, concealing, altering, or otherwise wrongfully tampering with material evidence (including attempts to influence a witness' testimony). If you are reasonably satisfied from the evidence that the Defendant did or attempted to wrongfully destroy, hide, conceal, alter, or otherwise tamper with material evidence, then that fact may be considered as an inference of Defendant's guilt, culpability, or awareness of the Defendant's negligence.
Alabama Pattern Jury Instruction, 15.13 (2001).

Obviously, this charge and the inferences that can be drawn from it may be devastating to the Defendant.

5. Interviewing Witnesses - The memories of witnesses tend to fade over time. As a result, it is generally advisable to obtain written or taped statements from fact witnesses or police officers whenever possible. One of the few advantages that the trucking client has during the litigation process is the ability to get their personnel on the ground first. Allowing a claims adjuster or field investigator to take statements from fact witnesses helps to ensure that their testimony is not influenced by claimants or adverse counsel, preserves a record of their observations, and provides for more thorough evaluation of liability. However, it is not recommended that these interviews be conducted by counsel since, as mentioned earlier, candor tends to be minimized when people are talking to lawyers, and because unrepresented parties may feel compelled to obtain their own counsel. Interviewing the claimants may also be advisable, though they often resent the intrusion and will occasionally seek representation where they would not have otherwise done so, or at the least, earlier than they would have had they not been contacted by representatives of the prospective defendants.

6. Conclusion - Handling accident investigation and reconstruction is not an exact science. The primary goals are not only to evaluate the claim, but also to preserve evidence. For this reason, establishing control of the situation early may help to minimize exposure. For the insurer or trucking company keeping in mind the issues discussed above may prove helpful in handling the accident investigation in a more thorough, prudent, and effective manner.