By: Doug Betkowski
May 10, 2023 — The transportation industry is a critical component of commerce and, influenced by technological advancements, economic changes, and shifting consumer demands, an ever-evolving field. Developing trends require companies to explore new ways of optimizing their operations as well as assessing how to successfully manage risk. The shortage of skilled drivers, rising fuel costs, and increased regulatory scrutiny all contribute to a complex risk landscape that requires careful management to ensure the safety of drivers, cargo, and the public at large. As the industry continues to evolve, risk management will become an increasingly critical aspect of operations, but businesses can take certain steps to protect themselves, their drivers, and their clients in the case of an accident or adverse event.
According to the Department of Transportation, a Motor Carrier is defined as one that operates commercial motor vehicles (CMVs) to transport property, passengers, or hazardous materials and is involved in commerce (transportation related to a business.) The Department of Transportation Federal Motor Carrier Safety Administration Safety Regulations (FMCSRs) provide certain record-keeping requirements for CMVs that pertain to the ownership, operation, safety, and performance of the commercial carrier. Encompassing Driver Qualifications and Safety Programs, driving logs and vehicle maintenance, drug testing, and more, the FMCSRs spell out the rules for driving commercial vehicles, including the records that must be kept and the time frames within which they may be expunged.
Telematics is a method of monitoring cars, trucks, equipment, and other assets by using GPS technology and on-board diagnostics (OBD), which can plot the asset's movements on a computerized map. The telematics devices — the electronics inside a truck — are an important recording collection and retention mechanism for Motor Carriers. The telematics data can be used to determine speed over time or location when or if there is an accident or other event. The requirements for record keeping, retention, and preservation of that documentation is part of the Federal Motor Carrier Safety Regulations and is required of CMV carriers. After an accident, these data and documents are critical to the investigation and claims outcomes.
When analyzing a claim, transportation claims specialists will often refer to a checklist of questions that a claims generalist might not ask. Motor Carriers would benefit from good "housekeeping" of the truck's data so that, in the event of an accident, they can "check the box" on the claims specialist's checklist, which will expedite the investigation and handling and resolution of the claim.
The devices in a commercial motor vehicle may include:
- The truck's computer or electronic control module (ECM) or "black box"
- Qualcomm device or other communication or navigational devices and GPS systems
- Electronic on-board recorders (EOBRs)/Electronic Logs
- Dash cams
- ABS (anti-lock brake systems), collision avoidance technology, or warning systems
Other electronics in the truck, such as cell phones, laptops, or tablets, may also provide specific evidence about speed or location, but they may serve as potential distractions in the truck cab.
Record Collection & Retention
When accidents do happen, and especially when faced with a serious loss, questionable liability, or catastrophic injuries, record and data preservation is essential. The collection of the electronic documentation and other records is just one part of the investigation, and the claims professional must work in concert with the Motor Carrier, the adjuster/investigator, the defense counsel if assigned, and any experts who are determined to be necessary to complete the accident investigation. The items below constitute a checklist, which may be utilized by the claims professional to assure that the investigation is complete based upon the known information at the time.
This list is by no means intended to reflect all the aspects of the investigation at any point in time, but it is meant to illustrate the things to consider and which may need to be completed in the early stages of the investigation. Likewise, some of the items may be discretionary, and not every case stands for the proposition that there is a duty to preserve all these records in every case. Accordingly, it is always prudent to work with your transportation claims specialist and other industry professionals with the proper transportation experience to ensure that the duty is met when necessary and that the company can make the right decision when it is not necessary.
The checklist of data, documents, and/or records can include:
- ECM download
- EOBRs/electronic logs
- Qualcomm data
- Satellite positioning, GPS data
- Cell phone records
- Dash cam device download and videos retained
- Driver qualification files
- Driver training and road test results
- Driver and company communications (including cell phone records)
- Medical examiner's certificate
- Tractor-trailer titles, registration, and maintenance records
- Driver vehicle inspection reports
- Fuel report
- Dispatch records
- Bills of lading, driver manifest
- Any accident investigation files for driver
- Any lease agreements (if applicable)
- Safety/training materials
- Driver payroll information
Also of note is that the Supreme Court has held that Fifth Amendment protection does not apply to records that are required to be kept by law; therefore, attempts to avoid the production of documents pursuant to a Discovery request are not likely to be viewed favorably.
In the Aftermath of a Crash
Since accidents do happen, in the aftermath of a collision with another motor vehicle, the collection and analysis of information provided by these devices are important parts of any accident investigation. In addition, any crash that involves a tractor-trailer or other commercial vehicle is a complex event and requires an investigation involving a team with the appropriate expertise. It is necessary to utilize their specialized knowledge to ascertain the factual evidence of the crash and assist the claims professional with preserving it.
In the event of litigation, the collection of the documents and evidence of how the accident happened must be handled correctly and competently so that the validity and accuracy may not be questioned later. The data contained therein may not only provide the hard facts about what happened to cause the event but is also irrefutable, objective evidence that can establish responsibility (liability).
To reiterate, this part of the investigation requires specialization, and expert retention is essential and not limited. It may include the utilization of a field adjuster, an accident reconstruction expert and/or engineer, an attorney, and others. An adjuster can quickly establish "boots on the ground" at the accident scene and collect photographs, inspect and create a record of damages, interview witnesses, and collect other information directly or at the direction of counsel. They may also assist the driver as necessary, escorting them to a safe place or completing a drug test, if required.
The Accident Reconstruction Expert, with the proper software, can download the ECM and preserve that record, which, among other things, provides information concerning the vehicle's wheel speed, accelerator position, braking, engine RPM, and more. This ensures that the information is not corrupted, lost, or overwritten. If it is determined that an attorney will also be hired, the adjuster and the Accident Reconstruction Expert may work closely with the defense counsel and provide their reports through the counsel. This will preserve the attorney-client privilege regarding the specific details of the accident investigation and ensure that the evidence is properly preserved.
Because transportation claims are different and require expertise, the transportation claims specialist will attempt to identify the severity level of the claim at the earliest opportunity. Some of the questions which may be asked to assist in the early evaluation are:
- Where is the accident? Who is involved, and what kind of truck? Who is the driver, and what is their cell phone number?
- When contacting the driver: Are you OK and in a safe place? Is your truck drivable?
- After a crash, it is important to determine the exact location, reorient the driver to the time and place, and then determine their status and that of the truck. In the early aftermath of a crash, the most efficient thing to do is gather all the information that is currently known so that if a Rapid Response is needed, the necessary parties — Independent Adjuster, Accident Reconstruction, and Defense Counsel — can be assembled and dispatched.
- Is anyone hurt? Has 911 been called and/or are the police on-scene?
- Accidents involving a fatality automatically require DOT drug and alcohol testing regardless of fault. Additionally, if there is a serious injury or if a person is transported from the scene to a medical facility and the driver is issued a citation, DOT drug and alcohol testing is mandatory.
An accident does not solely establish an affirmative duty upon the Motor Carrier to download electronic data, postpone repairs, or set records aside for preservation. The preservation obligation in every case is contingent upon the facts of the accident, and the advice of a professional should be sought. Without substantial experience and expertise, references, and connections in trucking/transportation claims, it is impossible to offer generalized advice when or if there is a duty to preserve evidence. The safest bet to properly guiding the Motor Carrier should be having the right expertise and partners in your corner.
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