Same-day Accident Scene Inspection Preserves Crucial Evidence

We got the call early in the afternoon of June 20. Our client’s small trucker-insured had been in a fatal accident at about 1:30 in the morning. Not much was known at that point other than the fact that the insured tractor-trailer had lost control traveling westbound on Interstate 80 in western New Jersey. His truck had moved from the right lane across the center and left lanes, and across the median. The truck ended up blocking all lanes of eastbound traffic. An oncoming tractor trailer struck the insured truck. The driver of the oncoming truck was killed in the accident.

The only other thing we knew was that our driver had gone to the hospital and was to be picked up by his wife and taken to the home of a relative in New York. We also had a cell telephone number.

We mounted our efforts for immediate response. John Lane called Steve Coulon, accident reconstruction investigator and expert, who was able to arrange his schedule and to be able to visit the accident scene the following morning. John also made contact with New Jersey State Police Barracks in Netcong, New Jersey. They confirmed that they had completed their accident scene investigation and their interviews with our driver. He had passed the drug screen without any difficulty. They were still keeping his log book, bill of lading, and other pertinent documents for their review.

The State Police also told John one other fact: there had clearly been a blowout in our truck’s left steer tire. That information led us on a trail of investigation that proved to be very important, and fruitful.

In the meantime, law partner Peter Bobchin made contact with the insured driver and arranged to meet with him the following morning at the home of his relatives in Queens, New York. We wanted to ensure the confidentiality of any interviews with the insured driver. What Peter would learn would be crucial to our defense, and would mesh perfectly with what John and Steve would find at the accident scene. We had no idea at that time of the measure of success that would be ahead of us.

The following day, Steve and John drove to the scene of the accident and parked on the shoulder. Interstate 80 in New Jersey is extremely busy, running eastward toward New York and westward to Pennsylvania and beyond. Dodging traffic and hiking to the immediate location of the accident, they came upon demolished portions of guardrail on both sides of the grassy median. The median itself was about fifty feet wide and included a large gulley. Our client’s truck had obviously gone through the near guardrail, down into the median and back up, going through the far guardrail and coming to rest in the eastbound lanes of traffic. John had been told that the state police had the highway closed for some five hours. It is amazing that they were able to attend to the scene and clean it up in so little time.

But they did not clean it all up. Scattered about the trail forged by our tractor-trailer and in reasonable proximity to the accident location, Steve and John saw several pieces of truck tire tread. They looked like typical truck tire treads that one sees along the highways. Our expert would later explain that these pieces of tire tread, which covered almost the entire wheel hub and tire carcass (which we later obtained) told a rather different story. Steve and John picked up as many of the pieces of the tire tread as they could find throughout the large area encompassing the scene.

Large section of the truck tire circled in red
John surveying the scene 
Red arrows pointing to pieces of broken tire and onset of the flat tire scuff

In the meantime, Peter Bobchin met with the insured driver. The driver explained that eleven days earlier he had stopped at a Weigh Station in northern Virginia and there encountered a Virginia State Trooper. The trooper inspected the insured’s tractor-trailer and determined that the left steer tire needed to be replaced. He told the insured that he could not leave the Weigh Station without replacing the tire. Our driver-insured exclaimed that he was far from home and did not know how he would obtain assistance to get a new tire. The trooper then contacted one of the truck service companies authorized to provide service on I-95 in that locale.

The trooper called in help from one of those companies, whom we will refer to as Truck Center. They sent a work truck and specialist out to the Weigh Station with two tires available for our driver. A new tire would cost over $800, while a used tire would be far less expensive. Our driver chose the used tire, and the man from the Truck Center installed it on the hub of the tractor’s left front wheel. What our driver did not know was that the tire was thirteen years old, and although it appeared to be serviceable, to a tire expert it displayed a fatal flaw. This old, deficient tire should never have been placed on the steer wheel of any over-the-road tractor-trailer. The invoice gave us all the identification we needed to pursue Truck Center. Now we needed more scientific information.

784784The insured’s left steer wheel and tire

We would need the actual hub from our client’s tractor. We made arrangements with the physical damage insurer to allow us to take the wheel from the truck. We went to the towing yard selected by the physical damage insurer for salvage of the tractor, in order to remove and take with us the wheel from the left front axle of the tractor. The tow yard personnel were cooperative. To assist us and to document this operation, we worked with fellow TIDA (Trucking Industry Defense Association) member, Don Guarcello, of Global Investigative Concepts. Don had his crew set up video and photographic equipment and carefully made a pictorial history of the events of the day. John Lane then took the truck wheel back to our office, where it resided in our storage room.

We knew that there had been a tire separation unlike any typical blowout. We retained James Gardner, a nationally known tire expert, to inspect the wheel and the tire tread pieces that Steve and John had picked up during their dangerous walk along Interstate 80. Jim flew to New Jersey for the day and performed an extremely careful inspection of the wheel and the tire treads. He was actually able to reconstruct the tire (even discarding pieces of tread that were not part of that tire), enabling him to draw and support his important conclusions. Jim’s expert report, which came shortly after his inspection, confirmed the opinions that he expressed to John during his inspection.

While this scientific investigative work was going on, the insured began to receive claim letters. The first, and most troubling, was of course the claim by the Estate of the other driver for wrongful death damages. The insured also received claims from the State of New Jersey and its agents for reimbursements of costs to repair and replace the guiderails and to perform environmental clean-up from both trucks. We received claims from a representative of the other trucking company, seeking reimbursement of the value of their destroyed tractor. Later, we received a claim from the original towing and recovery contractor who had been hired by the county prosecutor. Apparently, the other company’s trailer had never been removed from the premises, and that towing yard wanted us to pay for the storage of the other company’s trailer, for more than two years. That claim amounted to a lot of money, although we could not see the liability for that storage since the insured did not own the trailer and could not authorize its removal if he wanted to.

It was time to move against the Truck Center. We wrote to that company, setting forth our claim against them and requesting that they contact their insurance company. We soon heard from their insurer. They were not impressed with our case, partly because we held back the crux of our evidence, including Jim Gardner’s report. We brought our client’s Virginia counsel into the case and had them file an action for contribution in the United States District Court for the Eastern District of Virginia. This is the Court with the famous “Rocket Docket.”

In the meantime, while we were speaking with the other insurance company and hoping to work out a settlement with them, it was important for us to resolve the wrongful death claim. If that could not be done, then there would be no chance of settling the remaining claims. Our investigation revealed that there might be some weaknesses in the family’s case and that they might wish to settle sooner rather than later, at a reasonable figure. That made a visit with the Estate’s attorney worthwhile.

The other driver was a native of a rural town in upstate New York. His family had retained a local plaintiff’s attorney of considerable talent, who at the same time was pragmatic. John traveled to New York and met with that attorney, sitting face-to-face with her in her conference room. We both knew the strengths and weaknesses of one another’s cases. In the span of just a half hour, we were able to work out a framework for resolving the wrongful death case. That resolution would allow us to save enough money to face the other claims. Within two weeks we had reached a tentative agreement to settle the wrongful death claim.

The insurance company for Truck Center was not responding as we had hoped. We sent them the suit papers, and then decided to provide them with a copy of the Jim Gardner report. Our gamble paid off. The insurer must have begun to realize that we truly had a strong case against their insured. They agreed to pay a full pro-rata share of all of the claims, including the wrongful death claim.

We are pleased to report that we have now resolved and paid all of the claims, with the other insurer paying a full one-half share of each claim, based upon the Contribution Law of the State of Virginia. The wrongful death lawsuit was dismissed, and we dismissed the Federal Court action in the Eastern District of Virginia. Our client saved hundreds of thousands of dollars in what was at first expected to be a policy-limits case.

Without the immediate reaction authorized by our trucker’s insurance company, in retaining us and sending us out immediately to the accident scene, none of the recovery that we obtained would have been possible. The claims could easily have exceeded the policy limit, and they would have been paid entirely by our client. We strongly urge the use of a rapid response team in all serious accident cases.