Everything you need to know about Semi-Truck Accidents and Hiring the Right Lawyer
Trucking is a huge industry in the United States. Because Kansas and Missouri are located in the center of the country, it is a crossroads of trucking. Kansas and Missouri roads and highways are among the most heavily trafficked in the nation. Semis, box trucks, and other commercial vehicles make up a large portion of traffic on Kansas and Missouri roads. The massive size of semi-trucks means that injuries resulting from accidents with these behemoths are generally more severe than passenger vehicle accidents. When an individual is injured in a trucking accident, the law provides a means of redress for those injuries. Below is an overview of common questions associated with trucking accidents.
What causes most truck accidents? Just as with most car accidents, the most common cause is one of negligence. The basis of a negligence claim is the legal principle that all drivers on the road, including truck drivers, must operate their vehicles in a reasonable and safe manner. For truck drivers, though the standard is the same, it often requires different actions because of the nature of semi-trucks. For example, the appropriate distance to follow another vehicle is very different for a semi-truck and a small car. Additionally, blind spots of semi-trucks are much larger than those of other vehicles, requiring extra precaution by truck drivers. When a truck driver fails to act reasonably and safely, causing injury to another driver, that injured driver has a valid claim for negligence.
Another common claim arising from traffic accidents is negligence per se. This type of claim is based on violations of laws that result in injury to others. To be successful, the violation of the law must result in the type of harm the law was meant to prevent occurred and injured person must be the type of person, such as a car driver or pedestrian, that the law was meant to protect. For truck drivers, all the laws that normally apply to drivers may be the basis of this type of claim. Truck drivers are also subject to extensive regulations and laws specific to operating large vehicles or using a commercial driver’s license. For example, Title 49 of the Code of Federal Regulations, Section 395.3 limits the hours a commercial truck driver can drive and how long the breaks between driving must be. If a truck driver violates this rule and falls asleep at the wheel, the injured individual can bring a negligence per se claim to collect compensation for injuries. However, if a truck driver violates this regulation but causes an accident due to speeding, not fatigue, the violation would not provide a means of redress; the regulation is meant to prevent accidents caused by fatigue, not accidents caused by speeding unrelated to fatigue.
Is the Trucking Company responsible if of their driver gets in an accident? The at-fault driver will be responsible for injuries resulting for a traffic accident. This principle holds true for truck drivers as well. Because insurance is required by Kansas and Missouri law, insurance companies will generally defend and pay for claims against their insured drivers. However, in the context of truck drivers, another party may also be liable: the employer of the truck driver. This is because of the doctrine of respondeat superior makes an employer liable for negligent acts committed by their employees. Two important things must be proven for this vicarious liability to apply. First, the truck driver must be an employee, not an independent contractor. They key is not what the employer says in fact, employers often will intentionally misclassify workers to attempt to get the benefits of employing an independent contractor, but instead the level of control the employer maintains over the worker. This requirement will be difficult in a number of trucking cases, because most truck drivers are given a fair amount of freedom in executing their work. This is, of course, not always the case, particularly with trucking companies that may set specific delivery schedules and requirements. The second thing that must be proven is much easier: that the accident occurred during the course and scope of the truck driver’s employment. This simply means that the truck driver was either performing an assigned task when the accident occurred or otherwise acting to benefit the employer. Courts have traditionally applied this rule in a fairly friendly way to injured individuals, meaning most times a truck driver is on the road, the driving will be found to be within the scope of employment.
How Common are trucking accidents? They occur every day, they occur in every state, they occur in a number of ways. Many times the vehicles involved in everyday wrecks are trucks or commercial vehicles. The magnitude of an injury in a truck wreck is the most concerning. The majority of the time, the injuries are catastrophic in nature or result in a fatality.
Are Trucking Accidents Subject To Different Regulations than cars? Absolutely, the trucking industry is heavily regulated, the rules that govern trucking companies and truck drivers are called the Federal Motor Carrier Safety Regulations. The acronym for these regulations is FMCSRs. The FMCSRs dictate the behavior that is expected, the minimum standards, if you will, that are expected out of a trucking company and their drivers. They govern rules like hiring of truck drivers, qualification of truck drivers, vehicle maintenance on the trucks, the amount of hours that drivers are allowed to drive and things of that nature. It is very important that a personal injury lawyer understand the FMCSRs when prosecuting a claim against a trucking company.
What are the Most Commonly Violated Regulation That Results In an Accident? Many times, truck driver fatigue is a factor in wrecks involving truck drivers and trucks. One of the most violated regulations would certainly be the hours of service, meaning the amount of hours that a truck driver is allowed to work or drive before they have to rest. Hours of service is one, another that frequently causes accidents is lack of vehicle maintenance. The requirements for systematic inspection and maintenance of the vehicles are very important and that is another one that is violated a lot. Probably the next would be the driver qualification and whether a driver is in fact medically qualified to operate a big rig. The health and safety of the driver is often overlooked and a cause of serious accidents.
Is It Easy To Access Medical Information Or Working Hours Of The Driver In A Truck Accident Claim? I would not say that those items are easily recovered. Trucking companies, for the most part, try to keep the information from appearing publicly in the context of a lawsuit that arises out of these types of cases. The lawyers are allowed to conduct what is called Discovery, which is simply asking for information and either getting it voluntarily or asking the court to compel the trucking company or the driver to produce this information. Once that information is produced, it is important that the person looking at it knows what to look for. One of the most important things in a claim relating to a wreck involving a tractor trailer is making sure that the trucking company receives a preservation of evidence letter as soon as possible.
In our office, immediately upon being retained to represent a victim in a truck accident case, we send the trucking company, the driver and the insurance carrier, a substantial preservation of evidence letter asking, in fact demanding that they preserve all of the necessary documentation that we are talking about that. This is required by the federal regulations, policies, procedures, hours of service logs, vehicle maintenance records, all of the documents that we look at to determine what the cause of the wreck was and what the likely factors are involved. That preservation of evidence letter getting to the insurance company, the trucking company or the driver as soon as possible is very important to making sure that documents and records do not disappear.
How Is A Truck Accident Claim Different From An Auto Accident Claim? Many people think of a truck accident as just a large car wreck and that is incorrect. One way that these differ is the necessity to preserve evidence immediately including getting people out to the scene, to photograph any evidence on the roadway, whether it be skid marks, or gouges in the pavement, or any physical evidence at the scene, it is important to document this to help prosecute your claim.
It is important to understand what the truck driver is supposed to do following a wreck, whether it involves drug or alcohol testing, or an accident report for his or her company. The trucking companies are vigorous in their defense of these claims. They hire the best lawyers, the insurance companies fight these claims tooth and nail and you have to be prepared and willing and able to fight it out with them, to get all of the information that is necessary to determine what happened.
How long do you have to assert a claim after a Semi Truck accident? It depends in what state the claim arises. Generally speaking, in Kansas, the statute of limitations is two years. In Missouri, the statute of limitations is five years. However, in Missouri, on a claim for a wrongful death, the statute of limitations is three years. So, it varies from state to state and from claim to claim. There are significant differences in the time periods. That is another reason why it is important to contact an experienced trucking lawyer as soon as possible not only to preserve evidence but also to get working on the claim immediately to make sure that those time periods do not expire.
Why is it important to hire a lawyer experienced with truck accidents? The regulations are very detailed and very expansive and many times, a lawyer that does not handle trucking cases would not know what documents to tell the trucking company to preserve much less know what records to ultimately request from the trucking company. If you ended up a lawyer that was not familiar with the trucking industry and trucking regulations documents, they may not know exactly what to look for or how to piece the information together, whether it be driver’s log books, bills of lading or cell phone records and how to piece those things together. Lawyers that have actually worked on trucking cases have a better knowledge of the information and how to use that information to the advantage of the person making the claim.
How Often Are Accident Reconstructionist Used In Trucking Accident Claims? More often than not. Most wrecks involving trucks where liability is disputed meaning that the trucking company is disputing that they are at fault, and even at times when they acknowledge they are at fault. At our firm we will retain an accident reconstructionist separate from the official police personnel so that they have our own boots on the ground and our own eyes looking at the scene, looking at photographs, looking at evidence and determining the vehicle dynamics involved. Accident Reconstructionist witnesses are used very frequently.
How Long Do Trucking Accident Claims Generally Take To Be Resolved? It certainly varies. The average time is probably twelve to eighteen months for a case to resolve either by way of settlement or a trial. Many times, because of the volume of information and the magnitude of the wreck itself, just combing through the documents and materials takes a considerable amount of time. So generally, the cases last somewhat longer than a common car accident claim. However, many times, cases are able to get resolved early on if the trucking company discovers that the opposing lawyer knows what he or she is doing, knows what documents to request, how to interpret that data and is able to convince the trucking company or insurance carrier that this case should be resolved quickly and without full-blown litigation.
How Accurate Are Future Projected Medical Costs In A Trucking Accident Claim? Before we would even recommend a settlement, we make sure that the client in the case, particularly if a catastrophic injury is involved, has seen a doctor or doctors that we have retained to evaluate the client and say, “Listen, this is all of the care and treatment that the client’s going to need in the future.” We would hire a life care planner to look at the recommendations of the health care professionals and put a figure on those future medical costs and those would be included in any settlement or in any demand or in the amount that we sought at trial because we do not want the clients to have these future medical costs hanging over their head. Future medical losses are always included in any settlement or resolution, those potential future medical costs are established by experts that do this for their job.
If The Driver Is An Independent Contractor, How Does That Impact Your Recovery In A Trucking Accident Claim? It is just another factor to analyze whether the driver is an independent contractor and employer does not change the equation of whether the company or the driver are liable for the injuries and damages from a wreck, you still have claims against both.
What are the biggest challenges in a truck accident claim? You are going up against very large, very well-funded entities, whether it be the trucking company or the insurance company. The size and resources of the adversary are always one thing that people are sometimes surprised by. Most of the time, when people hire a lawyer, they should feel like their only job is to get better physically or recover from grief or whatever the case may be that the client should be able to focus on getting better and healing from a wreck.
Let the attorney handle all of the legal maneuvering and strategy and certainly the client should be kept informed of what is going on. But at least in our office, we hope that the client takes all of those issues with insurance and dealing with bills and set those on our desk so that we can focus on healing whether it be physically, emotionally or psychologically.
What sets our firm apart from other truck accident lawyers? What sets our firm apart is that for ten years, before starting our firm, the partner that focuses on these types of claims did primary defense work. As a result of representing trucking companies for years, (a significant portion of my work was defending trucking companies and defending truck drivers) the vast majority of my cases were trucking cases. I have the inside knowledge of how these companies work, how the insurance carriers perceive not only the victims of truck wrecks but their own companies, their own drivers. As I have been on the other side, I am able to be an effective advocate for victims of truck wrecks.
How important is “Evidence” in A Trucking Accident Claim? The documentation of evidence at the scene and identification of witnesses is absolutely critical. Time is of the essence in these claims. Many times, the highway patrol will go to the scene of a wreck and do varying degrees of investigation. If it involves a fatality, typically a full reconstruction will be done by the highway patrol. But the ability to get your own accident reconstructionist, your own photographer, your own investigator to the scene of a wreck to interview witnesses independently is crucial.
It is probably one of the more significant advantages, and by that I mean the trucking company almost immediately after a catastrophic wreck will send investigators, photographers and reconstructionist to the scene of a wreck. Many times, trucking companies will call a lawyer and I have had cases where the lawyer arrived at the scene of the wreck before the highway patrol arrived there. Preservation of evidence and documentation of things at the scene are very critical.
How do you determine The Amount Of Recovery In A Trucking Accident Claim? The calculation of damages in a personal injury case are generally based on several factors, including a total amount of the medical bills incurred. It includes both past medical bills and any reasonably expected future medical treatment. The same goes with lost wages, you are entitled to recover for past lost wages and any expected future loss of earnings or lost wages as a result of the injuries sustained in a wreck. Those are the hard numbers.
After lost wages and the medical bills, then the third element would be pain and suffering. When considering pain and suffering, that is the open-ended portion of the claim. Pain and suffering damages are typically determined by the nature and extent of the injuries. Whether the injuries are permanent, the effect on somebody’s future, ability to enjoy life, whether it is play with your kids or play golf or whatever it is that people enjoy doing in their life. If they are not able to do that anymore, that would fall under the category of pain and suffering.
Another element of damages that should always be investigated thoroughly in a truck wreck is the prospect for punitive damages or aggravated liability. Many times in these cases, there is some fact or a number of facts that would lead to the assessment of punitive damages or aggravating circumstances, aggravated liability in these cases and that is something that should be explored thoroughly throughout discovery.
How Do I Begin The Claims Process Against A Large Trucking Company? The first step would be to contact a lawyer that is experienced in handling truck accidents. There are hundreds if not thousands of lawyers but a very small percentage of those lawyers actually have experience in handling truck claims. The lawyers that handle truck claims have attended seminars and have spoken on topics involving the trucking industry and know the trucking industry and know the regulations. The first thing that you would want to do to begin a claim arising out of one of these wrecks would be to contact a lawyer that is experienced in handling trucking cases.
I would want to ask that lawyer what your history of handling these cases is, how many of these cases have you handled, can you give me references of former clients that you have represented in these cases, and just generally get an understanding of how familiar they are with the industry and the regulations. From there, that lawyer should be able to assist you in pursuing your claim.
If a person is killed in a truck accident does their family have a claim? When an individual is killed in an accident caused by a truck driver, a legal claim still exists. The estate of the deceased individuals can bring the claim that the individual would have been able to bring had he or she survived. This is true whether the injured individual dies as a result of the accident or passes away from unrelated conditions after the accident but during the lawsuit. The family of the deceased individual has another option, however. They can bring an action for wrongful death under Section 60-1901. This type of claim seeks to redress the loss of the loved one, rather than to compensate the deceased for injuries suffered prior to death. Section 60-1902 allows any family of the deceased to bring the action against the individual that caused the death of the deceased. Whatever recovery is awarded must be divided among all heirs, unless those heirs decline to partake in the lawsuit.
Trucking accidents are some of the most severe traffic accidents that occur. Individuals can be seriously injured or even killed in these accidents. If you or a loved one are injured by the carelessness of a truck driver, it is important to contact an attorney as soon as possible. Evidence regarding the cause of the accident is easiest to obtain just after an accident occurs and this evidence may be critical to establishing a claim for redress of injuries suffered.
Is a truck accident involving a Fatality dealt with differently than a non-fatality accident? The process to go about recovery is very similar. First, you have to establish what the facts of the wreck are and then you have to establish liability on the trucking company or the driver. You have to determine whether an independent claim exists against the trucking company for what is called negligent hiring, training or supervision of the driver. That is simply that the trucking company did not do its job in hiring, training or supervising the driver. Then the damages in a wrongful death case are determined by statute. Both in Kansas and Missouri, there are separate wrongful death statutes that lay out the elements of damage for wrongful death claims as well as establish the identity of legal heirs that are entitled to recover under the particular statute.
How do you deal clients when there is a Fatality in A Trucking Accident? Obviously, the survivors of someone that has passed away following a truck wreck, they are in an emotionally devastated state. Many times, the trucking companies will call and offer to pay for funeral expenses and ask if there is anything that the family needs, any reasonable expenses associated with the funeral or transportation for the family members to the funeral or those types of things. Certainly, that is done to develop a connection with the family. Many times, the family is in an emotionally devastated state and is not able to process what is going on. They develop an open line of communication with the trucking company and that is just one of the tactics that trucking companies use to connect with the victims of a truck wreck very shortly after it occurs. At our firm, I try not only to be the advocate for the family but insulate them from the “tactics” of the trucking company.
What else do I need to know about a truck accident? One thing to discuss about truck accidents or truck wrecks is the driver’s physical qualifications to drive a truck and the issue of obstructive sleep apnea in truck drivers. There is very compelling data that suggests that an extraordinarily high percentage of truck drivers have obstructive sleep apnea, commonly the acronym is OSA. Sleep apnea is simply pauses in breathing while you are sleeping. One symptom is heavy or loud snoring. The connection between obstructive sleep apnea and driver fatigue is one that is very significant in the trucking industry. There is no mandate that companies screen or test their drivers for obstructive sleep apnea, but my firm has spoken on this issue to try to get the federal regulations to mandate some type of testing or screening for sleep apnea.
In a recent case that we had, we had a driver who was very large, had a body mass index of well over fifty, which is a strong indicator that a person has sleep apnea. In this case, the driver had been identified as a person that should be examined for sleep apnea but he just went to another doctor the next time around, never got tested and was put back on the road. If the federal government mandates some sort of testing by these trucking companies, that driver either would have gotten treated or would not have been able to drive. In any discussion regarding trucking or truck accidents or truck drivers, particularly as it relates to driver fatigue, the issue of obstructive sleep apnea is critical.
In our case, we hired a sleep expert from Harvard to discuss all of the physical factors of this particular driver and he concluded that in fact the driver had obstructive sleep apnea and that he had fallen asleep causing a fatality in a multi-vehicle wreck.