Big Rig Trucking Accidents–Sample letter of representation–Spoilation Notices–Personal Injury

Posted by: on Thu, Jan 31, 2013

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Big Rig Trucking Accidents–Sample letter of representation–Spoilation Notices–Personal Injury

Dear ______,

As you know from your prior discussion with _________, this office has been retained to represent ___________ in connection with substantial bodily injuries resulting from a truck accident on January ___________ at the _______________ truck stop located in ___________. The accident occurred when our client was struck by a big rig truck owned by your company (truck number ____) and driven by your employee, ________, who negligently allowed his truck to roll backwards into ________. Unfortunately, your driver was apparently not aware that he had rolled backwards into our client, and therefore the victim was pinned between the two large trucks for almost a full minute before witnesses were able to get the attention of your driver and have him pull his rig forward. Our client then fell to the ground with fractured ____________ and ___________, and had to wait lying on the frozen cement for some twenty minutes for the ambulance to arrive.

Our client received severe injuries to _______________. Consequently, our client had to be flown by medical jet at approximately 2 p.m. to a surgical hospital in _______________. Finally, at approximately 4 p.m, our client was taken into surgery at___________. During a four hour operation, titanium rods were inserted by the orthopedic surgeon into ______________. Hence, our client was not able to be operated on from 8 a.m. until 4 p.m, some 8 hours after the accident, due to the remote location of the accident and the inclement weather at the time..

Our client operated _____________for a living, and excelled as an active participant in a variety of sports, including baseball and basketball (playing on two baseball and two basketball leagues per season, coaching youth teams, snow skiing and wake boarding, and also enjoyed backpacking, hiking and camping with his wife and a scout troop, of which he was a leader. We will not know for some time if and when the physical rehabilitation and related occupational therapy will allow him to return to work and the sports he loves. Copies of the relevant documentation will be submitted to you after we have received the same.

As we mentioned to you yesterday, we suggest that you notify your primary and excess insurance carriers at this time, if you have not already done so. We understand you may have already notified your primary carrier, and that you are awaiting word from them of the name of the insurance adjuster and claim number assigned to this matter. It is likely defense counsel may be assigned shortly.

This letter is written to formally notify you of the pendency of our claim and to further notify you that you and your company have certain legal obligations so as to prevent you, by inappropriate action or inaction, from prejudicing our client’s rights, while this matter is being investigated. If you have already retained counsel to represent you in this matter (and we strongly advise you that you should do so), please have your attorney contact our law firm so that all future communications can be directed to your legal counsel.

We appreciate your cooperation as we investigate this unfortunate and tragic accident, but we do have an obligation to make the following statements to you regarding the importance of preserving evidence. You are advised that you are under a legal duty to retain, protect, and preserve all evidence pertaining to this incident and claim. Any failure on your company’s part to properly preserve evidence, or any action on your part to destroy any available evidence, with respect to this matter, could lead to potential adverse consequences to you and your company. For example, the photographs which you and your safety department (and other witnesses) have advised our office were taken by your driver at the scene must be preserved, including the photographs of our client, and the written report of your driver.

In addition, the tractor and attached trailer which were involved in this accident must be stored at a safe location and no alterations or repairs must be allowed to the same until such time as they may be inspected by representatives of my client. To the extent, if any, that there have already been any alterations or repairs of the vehicle since the date and time of the accident, any parts which were removed from the vehicle must be preserved and all photographs and documentation regarding such repairs must also be preserved. To the extent, if any, that this driver should cease working for you, please take appropriate steps to preserve all relevant and available information regarding his whereabouts. Please forward to me copies of the insurance policies and all pertinent photographs at your earliest opportunity, as well as the items listed below.

We also request the preservation of the following enumerated evidence relevant to this accident. If you fail to properly secure and preserve the following evidence, it will give rise to a legal presumption that the evidence would have been harmful to your side of the case. The destruction, alteration, or loss of any of the relevant evidence, may constitute spoliation under applicable law. We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired or changed in any manner, and that the copies of the following documents and the following information be provided to us:

1. The tractor and trailer involved in this collision, including without limitation all of the component parts thereof and the interior of the cab and all personal effects which were located in the cab at the time of the incident.

2. All documents pertaining to the ownership of the tractor and the trailer involved in this accident, including but not limited to title and registration documents, and all documents relating to the particular shipment job on which the driver was engaged at the time of the accident, including any primary carrier or subcontract or lease agreement with any other carrier or customer for which the shipment was being performed.

3. All copies of your driver’s daily logs for the day of the accident, and for the six-month period preceding the accident, together with all material required by 49 C.F.R. 396.8 and 395.15 for the driver involved in the above matter.

4. All existing driver/vehicle inspection reports required under 49 C.F.R. 396.11 for the vehicles involved in the accident.

5. All existing daily inspection reports for the tractor and trailer involved in this accident.

6. All existing maintenance, inspection and repair records or work orders on the tractor and trailer involved in the above accident.

7. All annual inspection reports for the tractor and trailer involved in the above accident covering the date of the accident.

8. Any and all information you have regarding your driver, including a copy of his driver’s license, social security number, a copy of his passport, his current address, his past three prior addresses, his home phone number and any cell phone or pager numbers, and the names and addresses of each member of his immediate family (for the purpose of ensuring he will be able to be found in the event he leaves your employ at some future date before his testimony or statement can be taken), and any photographs of the accident scene and the injured victim taken by the driver.

9. Your driver’s complete driver’s qualification file, as required by 49 C.F.R. 391.51, including, but not limited to:

a. Application for employment.

b. Inquiries into driver’s employment history.

c. Responses to inquiries into driver’s employment history.

d. Driver’s employment history.

e. CDL License.

f. Driver’s Certification of Prior Traffic Violations.

g. Driver’s Certification of Prior Collisions or Accidents.

h. Pre-employment MVR.

i. Annual MVR for last two years.

j. Annual review of driver history.

k. Certification of road test.

l. Medical examiner’s certification for last two years.

m. Drug testing records.

10. Photographs, videos, computer generated media, or other recordings of the interior and exterior of the vehicles involved in this accident, the accident scene, the occurrence, or relating to any equipment or things originally located at or near the site of the occurrence.

11. The driver’s pre-employment, random, and post-accident alcohol and drug testing results.

12. Any lease contracts or agreements covering the driver or the tractor or trailer involved in this accident.

13. Any interchange agreements regarding the tractor or trailer involved in this accident.

14. Any data and/or printout from on-board recording devices, including, but not limited to, the ECM (electronic control module), or any on-board computer, tachograph, trip monitor, trip recorder, trip master or other recording or tracking device for the day of the accident and the six-month period preceding the accident for the equipment involved in the accident.

15. Any post-accident maintenance, inspection, or repair records or invoices in regard to the tractor and trailer involved in the above accident.

16. Any weight tickets, fuel receipts, hotel bills, or other records of expenses, regardless of type, regarding the driver or the tractor or trailer involved in this accident for the day of the accident and the thirty (30) day period preceding the accident.

17. Any trip reports, dispatch records, trip envelops regarding the driver or the tractor or trailer involved in this accident for the day of the accident and the thirty (30) day period preceding this accident.

18. Any e-mails, electronic messages, letters, memos, or other documents concerning this accident.

19. The accident register maintained by the motor carrier as required by federal law for the one (1) year period preceding this accident.

20. Any drivers’ manuals, guidelines, rules or regulations given to drivers such as the one involved in this accident.

21. Any reports, memos, notes, logs or other documents evidencing complaints about the driver in the above accident.

22. Any DOT reports, memos, notes or correspondence concerning the driver or the tractor or trailer involved in this accident.

23. Any downloadable computer data from the tractor’s computer system to include but not be limited to Electronic Control Modules, Event Data Recorders, Eaton VORAD accident warning system, and other similar systems.

24. The pre-trip inspection report completed by the driver for the trip involved in this accident.

25. All Omni TRC, Qualcomm, NVPc QTRACS, OmniExpress, TruckMail, TrailerTRACS, SensorTRACS, JTRACS, and other similar systems data for the six (6) months prior to the accident for this driver and truck. You are hereby notified that you are required to place your supplier of the above system, as your agent, on notice that it is to save and preserve this electronic and related data.

26. All settlement sheets and expense sheets for the truck driver pertaining to trips taken for the day of the accident and thirty (30) days prior to the accident.

27. Cargo pickup or delivery orders prepared by motor carriers, brokers, shippers, receivers, driver, or other persons, or organizations for thirty (30) days prior to the date of the accident as well as the day of the accident.

28. Accounting records, cargo transportation bills and subsequent payments or other records indicating billings for transportation or subsequent payment for the transportation of cargo, with both the front and back of cancelled checks for cargo transported by the driver and/or truck involved in the accident for thirty (30) days prior to the date of the accident, as well as the day of the accident.

29. Any other items associated in any way with the job being performed on the date of the wreck, including documents, databases, or other pieces of evidence concerning or reflecting upon the driver, the accident, the tractor, trailer, or the truck.

30. ________’s entire personnel file on your driver.

31. Any and all communications via CB radio, mobile or satellite communication systems, e-mail, cellular phone, page or other cab communication device to include the bills for the devices for the seven (7) days before, the day of, and the two (2) days after the accident.

32. Any and all computer, electronic, or e-mail messages of any type created in the seven (7) days prior to the accident and the first forty-eight (48) hours immediately after the accident, by and between the defendant and any agents or third parties, as well as any computer message, which relate to this particular incident, whether generated or received by you or your agents. We require you to put any vendor which hosts or stores this data for you on notice of the need to preserve this data.

33. If not previously listed, all documents required by Federal Motor Carrier Safety Regulation 395.8, specifically those items identified in the Department of Transportation’s interpretation of the regulation.

34. All documents identifying the insurer of the tractor and trailer involved in the accident, including but not limited to all documents naming the insurance companies and policy numbers on such insurance.

35. All documents identifying any freight broker that was involved in making arrangements for transportation of the freight that was in the trailer at the time of the accident.

In order to assure that your obligation to preserve documents and things is met, please immediately forward a copy of this letter to all persons and entities with custodial responsibility for the items referred to in this letter.

In regard to the tractor and trailer involved in this accident, we would like to set up a mutually convenient time for our expert to inspect, examine, and conduct tests on the unit. We specifically request that you make no repairs or adjustments to the tractor or trailer, until this inspection is completed. Please contact us to discuss the scheduling of such an inspection.

In addition, in order to facilitate an early possible resolution of this matter within the limits of your insurance coverage, we respectfully request copies of each and every liability insurance policy applicable to this vehicle which was in effect on the date of the accident. We would appreciate it if you would also send me, by return mail, a copy of the declarations page of each such insurance policy.

When we complete our full investigation and when our client’s medical condition and future prognosis is better known and stabilized, we will complete our preliminary assessment of the case. At that time, we may send you or the appropriate representative from your insurance company a settlement proposal in an effort to expeditiously resolve this claim in a manner that is fair to all parties and saves all concerned parties time and future legal expenses. If we are unable to resolve the case by settlement at that time, appropriate legal proceedings will be initiated.

We look forward to working with your counsel and your insurer toward a prompt and amicable resolution of this tragic matter. In the meantime, please direct all communications to this office. Please do not hesitate to call should you have any questions or concerns. Thank you for your assistance and cooperation.

Very truly yours,

ALBRIGHT,STODDARD,WARNICK & ALBRIGHT

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.