INVESTIGATION CHECKLIST Major Accidents Involving ...€¦ · Mercedes Benz same as Detroit except Mercedes has two-piece system; Engine PLD and in cab DCU since 2002. Volvo engine

INVESTIGATION CHECKLISTMajor Accidents Involving Commercial Motor Vehicles

FORESIGHTRQconstruction, Inc., developed this checklist to provide guidance to those responsiblefor managing first response investigations of major accidents involving commercial motor vehicles.REPORTS & RECORDS are obtained from a variety of sources including police, drivers, newspapers,TV stations, EMS and others. For major accidents, the prompt assistance of an accident reconstructionspecialist is usually warranted to conduct inspection of the ACCIDENT SITE and VEHICLES, to leadthe preliminary accident analysis, to assess the need for continued investigation and to prepare forreconstruction analysis if and when requested.

IMPORTANT: While this checklist is comprehensive, it is neither exhaustive nor intended to be astandard investigation protocol. Since every accident is unique, some items will apply, some will not,some may not be on this list and some may remain unknown until additional information becomesavailable. Although investigations should be expedited, postponing certain activities until additionalinformation becomes available and/or other concerned parties are present may be appropriate. AVOID

SPOLIATION.

REPORTS AND RECORDS:

□ Photographs and statements taken by attorneys or claims investigators; Respect attorney-clientand work-product privileges.

□ Police report; supplemental reports; photographs; videotape; field notes; accident reconstructionreport; total station surveys.

□ Electronic data from all vehicles extracted by police or any other parties; ECM, SDM and/orABS.

□ DOT Commercial DriverWehicle Inspection report (49CFR396.9).□ State traffic citations and DOT Federal Motor Carrier Safety Regulation (FMCSR) violations.□ Driver's drug and alcohol test results (49CFR392.4 and 392.5).□ Driver's Commercial Driver's License (CDL).□ Weight scale ticket and bill of lading.□ Driver's record of duty status; log book (49CFR395.8).□ Recent Qualcomm satellite system data reports.□ Motor carrier's dispatch log.□ Towing/wrecker/recovery service receipts and photographs tow truck driver may have taken.□ Newspaper and TV station photographs and videotape (surface and aerial photos).□ Coroner's report and photographs.□ EMS and emergency room reports re: injuries, witness statements and evidence of seat belt

usage.□ Recent driver post-trip vehicle inspection reports (49CFR396.11).□ Periodic (annual) inspection report; Minimum Periodic Inspection Standards (49CFR396.17 &

Appendix G).□ Recent inspection, repair and maintenance records including random roadside inspection

(49CFR396.3).

□ Description/color of clothing and shoes for nighttime pedestrian accidents; Preserve clothing.□ Driver's cell phone records from time of accident may need to eventually be obtained.

ACCIDENT SITE:□ Locate accident site; Closest street address, intersections, overpasses, exit numbers, land marks,

mile markers, GPS, etc.. See mapquest.com, maps.google.com, local.live.com, terraserver.com,terraserver-usa.com, etc. for maps and aerial photographs.

□ Retain aerial photographer to be on call for low altitude verticals and obliques of accident siteand close-ups of evidence:P' choice: "aerial photographer" with 10+ megpixel SLR, wide and telephoto zoom lens fromhelicopter; 300' AGL min.Z""* choice: "aerial surveyor: with 9" x 9" film or digital mapping camera in belly of airplane;1000' AGL min; Best for verticals but these are high resolution and excellent for scaling andzooming in on details. Oblique shots are difficult.3^^ choice: aerial photographer with professional camera equipment from side window ofairplane: 1000' AGL min: Last choice because close-ups and true verticals needed for scalingcannot be obtained through the side window of an airplane at 1000' AGL; However, this serviceis the least expensive and most commonly available on short notice.

□ Inspect and photograph accident site ASAP, before evidence weathers away under rain, snow andtraffic; Within a day or two when possible; Not Weeks! Accident reconstructionist orexperienced vehicle accident investigator should know what to look for and photograph orvideotape; Use professional camera equipment.

□ Apply scale marks along shoulders or foglines with WHITE striping pain every 100',150' or 25'as needed in each relevant direction for scaling or aerial photographs; Make scale marks about5" X 15" with inverted spray can striping paint.

□ Mark location of inconspicuous evidence with striping paint to enhance appearance in aerialphotographs.

□ Map accident site with survey equipment or manually with measuring wheel and tape in lieu ofaerial photography; required in addition to aerial photography if road or off-road elevationmeasurements are relevant to accident analysis.

□ Videotape and/or photograph while driving toward area of impact for each relevant directionduring similar visibility conditions; Photograph speed limit and advisory speed signs and otheradvance signage on the approaches.

□ ■ Evaluate visibility for twilight/nighttime accidents before natural and artificial lighting haschanged; Request authorities or others to participate in evaluation; Photographs taken to recordvisibility for evidentiary purposes must be taken by qualified photographer.

□ Videotape traffic signal sequencing and timing: Simultaneous recording of both relevantdirections with the same camera is useful.

□ Videotape and/or photograph ASAP, advance construction zone traffic control devices andsignage before they are moved.

□ Videotape and/or photograph any relevant line-of-sight obstructions such as hills, curves,buildings, signs and especially parked vehicles, trees, bushes and other foliage before theychange; Measure location and height of camera lens.

□ Search for, measure and photograph potentially related potholes, shoulder drop-offs, loose graveland bumps.

VEHICLES:

□ Locate all accident vehicles: Identify contact person/phone number and obtain permission forinspections.

□ Identify accident vehicles make, model, year, color, fleet number, engine manufacture andsalvage yard stock number.

□ Driveable tractors should note be driver; DO NOT start engine or drive tractor after the accidentuntil ECM has been downloaded; Driving will delete last stop and may delete last hard stoprecords; If tractor is still at the accident scene and police permit; remove key, remove driveshafts; release parking spring brakes with external air and caging (DO NOT back off slackadjusters on tractor of trailer), then tow to off-road location for downloading.

□ Move client's vehicle to secure location imtil inspections have been completed.□ Tag vehicles "Out of Service"; Vehicles MUST be stored and preserved for a reasonable length

of time to give all parties an opportunity to inspect and agree to release.□ Vehicles MUST NOT be repaired or have parts removed or adjusted; AVOID SPOLIATION.□ "BLACK BOX" downloading including ECM's, SDM's and ABS: DO NOT download black

box from other party's vehicle without owner's permission; Depending on accident damage,black box may need to be removed; preserved and downloaded on a later date; Photograph orvideotape download and removal, Obtain both hardcopy and CD or other electronic record ofextracted data; Note: Downloading after removal may cause the disconnected sensor circuits toappear as false fault codes.

□ Download EMC (Electronic Control Module, "Black Box") by accident reconstructionist orqualified local dealer technician: Record odometer mileage to compare with ECM mileage;Record local time corresponding to ECM clock at time of download; Record drive axle tire sizesand differential ratio displayed on the tire sidewalls and differential housing.

Detroit Diesel DDECIV & V must have "last stop" and 2 last "hard brake" records since1997; Extract from Deutsch connector in cab.Caterpillar has 2 last "quick stop" records since 1996; Extract from Deutsch connectorin cab.Mack has 2 last "vehicle incident reports" since 1997 on some models and 2000 on allmodels; Engine ECU and Vehicle ECU must be removed and shipped to Mack Truck fordownload.Cummins does not have incident data in ECM; Dash mounted option called RoadRelay3 and 4 (not a common option) records incident data since 1995; May have up to 5 hardbrake records; DO NOT remove RoadRelay from tractor; Download with Cummins"Inform" software.Mercedes Benz same as Detroit except Mercedes has two-piece system; Engine PLD andin cab DCU since 2002.Volvo engine electronic control units do not record incident data per Volvo Trucks NorthAmerica, August, 2005.

□ Download SDM (Sensing and Diagnostic Module, "Black Box") from GM and Ford airbagsystems for velocity and braking data; Check vetronix.com for list of vehicles supported byCrash Data Retrieval System (CDR); Chrysler, Japanese and European DSM's are not currentlydownloadable by independents; Consider removing and preserving SDM before vehicle isrepaired or salvaged.

□ Download ABS Control Module fault codes with ABS diagnostic software (e.g., Bendix Acorn,Meritor Toolbox, LINK-Radlinski); ABS required on trucks manufactured since March, 1997and on other air braked CMV's manufactured since March, 1998 (49CFR393.55).

□ Download Eaton VORAD (Vehicle On-board Radar); Optional system may have incidentrecords; VORAD control module must be returned to Eaton for download; VORAD is not acommon option.

□ Inspect and photograph all accident vehicles; Accident reconstructionist should know what tolook for and photograph.

□ Search interior of vehicles for alcoholic beverage containers, legal or illegal drugs and cellphones; photograph in situ.

□ Measure tractor/trailer overall length, overall width, axle spacing and other potentially relevantdimensions.

□ Measure impact crush damage of passenger cars, vans, pickups for EDSMAC, EDCRASH orother speed analysis.

□ Determine if drivers claim mechanical problems; Visually inspect vehicles for any claimeddefects; A more comprehensive inspection with testing and disassembly may be required at laterdate with all parties present.

□ Test function of air brake system & measure slack: Review DOT brake inspection results whenavailable; Do not start engine for testing until after ECM has been downloaded; Mechanic andparts may be needed to repair accident damaged air brake system for testing; If pre-accidentdamage is found, DO NOT REPAIR for testing: To charge air reservoirs, start engine or use anexternal air supply; Air pressure = 80 to 90 psi with brakes applied for slack measurements (See49CFR Appendix G to Subchapter B and CVSA North American Standard Out of ServiceCriteria); Record application pressure at time of slack measurements.

□ Determine air chamber type/size; std. stroke or long stroke (L); manual or automatic slackadjusters; automatic brake slack adjusters and under-adjustment indicators required on air brakedCMV's mf d. since October 1994 (49CRF393.53).

□ Measure and photograph abnormal tractor and trailer brake lining thickness and cracks ormissing sections around inboard edges.

□ Photograph any visible abnormal brake drum condition such as oil, rust or cracks.□ Record transmission manufacture, model, automatic or manual and number of forward speeds.□ Photograph tread pattern width and condition of all tires; Measure tire pressure and tread depth

if relevant.□ Photograph cargo, dunnage and tie down devices especially for truck rollover accidents. Record

rating/capacity and condition of securement systems including steel strapping, chains, hoods,load binders, cables, webbing, cordage, front-end structures, etc.

□ Thoroughly examine vehicle for subtle dents, cracks in plastic or glass and tract blood, hair,fabric, scratches and smears in road film, etc, around and under vehicle for pedestrian accidents.

□ Inspect and photograph lamps on client's vehicle; Condition of lamp filaments within orproximate to collision damaged area may indicate whether they were "on" or "off at the timeof impact; Close-up photography is required; DO NOT turn on power to test lamp circuits;Depending on damage, power may alter post-impact condition of filaments, wiring and fuses;Operation of light circuits for testing may be considered only if their condition will not bealtered; Accident reconstructionist must advise as to what is appropriate for each specific case;Consider testing with other parties present and in agreement, AVOID SPOLIATION.

□ Inspect and photograph lamps in other parties vehicles; DO NOT test or remove without owner'spermission.

□ Remove and preserve relevant lamps from client's vehicle, Request participation of otherinterested parties; Mark location of lamps and photograph before removal; Do not clean dirt offglass bulbs or lens; Exposed lamp filaments are fragile and must be carefully removed andprotected; Accident reconstructionist should to this ASAP to avoid additional exposure toweathering and handling; Sealed lamp modules should be opened with other parties present;AVOID SPOLIATION.

FIRST RESPONSE TO A

CATASTROPHIC LOSS

LEWIS JOHS A VALLONE A VILES, LLP

What are the lessons behind

these photos?

Who took the photos?How were photos secured?When was notification made?

Did the delay hurt a defense?

LEWIS JOHSAVALLONEAVILES, LLP

Can you over-emphasizeearly accident reporting?


NO!!

Drivers MUST be trained to reportaccidents immediately!


NOTIFICATION:

Has a process been established?

Driver Informed?

Process Tested?

Are you ready to take the call?


Members of the Response Team

Role of attorney

Role of insured adjuster

Role of independent adjuster

Role of accident reconstructionist

Role of safety departmentpersonnel


Are You Prepared To AddressThe New Media

If so, what is the preparedstatement

Who will serve as the companyspokesperson


Are you ready to step out of theOLD mold and look to EARLY

COMMUNICATION

AND

RESOLUTION


Advantages to the GOLDEN RULE

Mitigate damages

Reduce specials

Good faith = Good Results


Can You Scramble To An Accident

Scene Within

45 minutes

2 hours

4 hours

LEWIS JOBS A VALLONE A VILES, LLP

IF YOU CAN NOT, WHAT

INFORMATION IS BEING

LOST


What Are You Looking For AtThe Accident Scene?

1. Facts of accident

2. Cause

3. Exposure


Can you protect your DRIVER?

Civil exposure

Punitive exposure

Criminal culpability

LEWIS JOHSAVALLONEAVILESy LLP

ANALYSIS ON A

CASE-BY-CASE BASIS


Preservation of Evidence:

Physical evidence on highway

Vehicles

Weather conditions

Road conditions


Documentation of Evidence

1. Chain of custody

2. Photos

3. Avoiding claims of spoliation


Is There A Claim For

Negligent Maintenance?

Explore contribution


Can That Old Junker Give Me

Some Help?

(Preservation of Evidence)


So You Have a Product Defect

Claim?


Navigating the Paper Trail

Are you prepared to turn over:


As to the defendant-driver,preserve the following documents

and items:

a. Personnel file

b. Record of required driving testc. Record of required within testd. Disciplinary actione. Driver's qualification filef. Driving recordsg. Payroll recordsh. Logbooksi. Trip receiptsj. Permits to carry gun


k. Records of all prior motor vehicleaccidents while working for or withdefendant motor carrier

1. Medical card and certificate

m. Personal and road expensesn. Carrier's investigation and inquiryo. Driver's application for employmentp. Record of violationsq. Current medical examinationr. Record of violations

s. Drug and alcohol test results

LEWIS JOHSAVALLONEAVILESy LLP

With regard to the tractor andtrailer involved in the accident,preserve the following documentsand other items for a period of onemonths prior to the accidentthrough one week after the accidentunless specifically otherwiseindicated:

a. Registrations and titles

b. The log books for the driver and seconddriver

c. Trip reports


d. Expense sheets

e. State entry and entrance records

f. Check point records

g. Fuel receipts

h. Bills of lading

i. Toll tickets

j. Fuel tax records

k. Gross receipts tax records


1. Federal use tax records

m. State permits

n. Repair orders before the accident untilthe repairs were complete, including allparts and labor used for such repairsincluding all routine maintenance records

o. Log books for any pervious drivers of thetractor in question when it was involvedin any accident other than the one inquestion


p. Log books for any previous drivers whowere in the trailer(s) in question when it(or they) were involved in the accidentother than the one in question

q. Fuel receipt for the trip

r. Lodging receipts for the trip and driver'sadvances for each driver on the trip

s. Driver advances

t. Payroll records for each driver on the trip


u. Traffic tickets, warnings issued or anycriminal charges or regulatory violationscharged or filed against any driver or thedefendant motor carrier

V. Required accident reports which must bemade regardless of the possibility oflitigation

w. Purchase order and specifications for thetractor and trailer

X. Tachometer

y. On-board computer records of timeand/or speed


z. Dispatch records

aa. Contracts of hire

bb. Driver highway checkpoints

cc. Records of entry and entrances intostates by defendant driver

dd. Documents, letters to and from,

terminal inspections, civil forfeitureor federal court action documents

presently in possession of thedefendant(s) in reference to violationsof the FMSCR


ee. Statements, written or oral,transcribed or un-transcribed, relatingto the incident

ff. Statements, written or oral,transcribed or un-transcribed, of anyand all witnesses to this collision

Photographs, motion pictures, andvideo tapes of the scene of theincident in question

hh. Experts


As to the defendant motor carrier'spolicies and programs, preserve thefollowing documents and items:

a. Fleet Safety Program including studiesand tests to determine the safety of thesingle, double, or triple trailerconfigurations used by the defendantmotor carrier, actions taken to assure that

drivers are not violating the federalregulations relating to the maximumhours of work by drivers and thataccurate logs are submitted by the driversand accepted by the defendant motorcarrier for filing as well as the continuedtesting of drivers for competency andsubstance abuse


b. Truck and trailer maintenance standards,including the standards for the parts usedto maintain and repair equipment

c. Employee Assistance Program andstandards for being allowed to attend

d. Driver standards

e. Mechanic standards

f. Dispatcher standards

g. Driver compensation

h. Firing drivers


Preservation of Electronic Data:

1. ECM

2. Qual-Com

3. Vorad

4. Tripmaster

5. DDEC


Who else has a "black box" worth

requesting?

Other commercial carriers

Passenger vehicles


Have all eyewitnesses (helpful)been statementized?

Remember, train your adjustersbefore the accident.


Governmental Scrutiny

1. Police

2. DOT

3. NTSB

4. Others


Handling the driver involved in acatastrophic loss

• Preventability determination

• Suspension

• Termination

• Maintaining communication andcooperation


Recourse of termination:

No cooperation

Lost communication

Potential adverse testimony


Benefits of termination:

Eliminate negligent retention claims


Has Your InvestigationProvided Yon With A Game

Plan?

1. Defend

2. Settle

3. Settle really fast


Implementation Of A Plan ToResolve

Defend at all costs

Mediate - pre-litigation (beforediscovery)

Litigate and settle


Does the insured need to be

advised of the likelihood of

punitive damages for:

1. Negligent hiring

2. Negligent retention

3. Negligent supervision


Assessing Exposure:

• Joint/Severe Liability

• Workers Compensation Limitations

• Sovereign Immunity Defenses

• Limited Coverages of other Tortfeasors


Will venue play a role inanalyzing exposure?

Pittsburgh

Philadelphia

Canton

Wheeling


The Goal:

A prompt, comprehensive analysis thateliminates as many questions as possible.


DISCUSSION

Questions & Answers
