The Importance of "Evidence Preservation": Part 4 - Repairs to Equipment Involved

Robert Franklin posted on 2010/02/26 |

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. This is Part 4 in a nine part series of related discussions. The full list of the parts to this series appears following this installment.

A key component of the physical evidence in any truck accident is the data available from any ECM or EOBR on the power unit or straight truck involved. One should attempt to promptly identify the types of devices that are on the unit, and to have someone with the requisite expertise download and retain the data. It is imperative to confirm the devices before the unit is moved at the scene, as sometimes merely restarting the engine, or a subsequent "hard stop", can erase data.

Another issue regarding the equipment is that of repairs. As idle trucks do not generate any revenue, it is understandable that businesses want to repair units and get them back into service as soon as possible. The reality of the transportation industry, however, is such that companies generally have additional capacity, and not all units need to be rushed back into service. In any event, the need to generate revenue should be balanced against the potential increase in exposure by failing to preserve evidence related to damage to the equipment, and repairs. As with all aspects of an accident investigation, the severity of the accident, and the likely exposure in terms of related claims, are significant factors in that evaluation process.

In some cases, the precise nature of the physical damage to the vehicles involved can be crucial. For example, accident reconstructionists often utilize such information in the calculation of relative speeds of the vehicles at the time of impact, the points of impact and rest, etc. Accordingly, those conclusions and opinions may have a significant impact on liability.

It is important to also note that even when the nature of the physical damage to the equipment is, in reality, not significant, it is often perceived as such. More importantly, failure to preserve related evidence may be perceived by a judge or jury as an attempt to "hide something". Accordingly, measures should be taken to preserve such evidence whenever possible.

First of all, if the unit can be held out of service for at least some period of time, that should be done, and it should be safely preserved. If one receives notice of representation of one or more of the potential adverse parties in related litigation, the company, or its counsel, can offer the opportunity for opposing counsel, and their experts, to inspect the equipment, under the supervision of defense counsel or some other company representative. That offer should be conveyed in writing, with a reasonable deadline for response, along with language stating that failure to respond by that time will be understood to signify that the recipient of the letter did not care to inspect the equipment. It is even better to obtain an affirmative declination to inspect the equipment, and to confirm the same in writing.

When an inspection is to be conducted, it should be done under the careful supervision of defense counsel or an appropriate company representative. The vehicle should be isolated at the time of the inspection (e.g. on a part of the parking lot where other vehicles are not parked nearby), so as to avoid inadvertent contact by the inspecting parties with company employees, as opposing counsel and/or their experts will often to utilize inspections as an opportunity to question company representatives and gather other evidence.

In situations where it is important to delay making repairs, one may need to be somewhat creative in terms of avoiding the need to use the unit. For example, the company may utilize slip seating in another vehicle, even if that is not the ordinary practice, to avoid the need to repair and use the damaged unit. Another problematic situation is that involving an owner operator. The owner operator's tractor is often his or her sole source of income, and thus he or she cannot simply fail to work while one waits to repair it. In a serious claim, it may be cost beneficial for the motor carrier, or its insurer, to pay the cost of a suitable rental unit for the owner operator to use until his or her tractor is repaired. Such costs are minimal in comparison to the exposure in a serious claim.

When repairs are to be done, they should be carefully documented. Many photographs should be taken of the equipment before, during, and after the repairs are made. In fact, one should also consider using a camcorder or other video device to film a "walk around" of the equipment during each stage.

One should also carefully document the damage found, including any related estimates, and the nature of the repairs performed. Finally, any damaged parts removed in the repair process should be identified and retained, pending potential litigation. It is, again, understood that this poses some inconvenience, and perhaps even a storage cost, to the private fleet operator or motor carrier. It is also, however, again noted that such costs are generally very modest, particularly in comparison to the potential exposure in a serious claim.

The precise nature of the physical damage to equipment involved in an accident may be extremely important in helping a judge or jury determine what happened in the accident, and thus legal fault. Moreover, even when it is really not that important, it may be perceived as such. Accordingly, as is the case with other types of evidence related to an accident, the failure to preserve such evidence may be perceived as an attempt to hide something, which inference may have a more significantly adverse impact on one's position than any which would have been drawn from observation of the damage to the equipment involved. Accordingly, one should take prudent steps to attempt to preserve evidence regarding damage to the equipment involved in an accident, including, when possible, delaying the making of such repairs until after counsel for the adverse parties have an opportunity to inspect it.

The "Preservation of Evidence" Series

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