As discussed earlier, there are quite a few things that a truck driver needs to take care of in the case of an accident. The seriousness of truck accidents can leave us with harsh consequences to face. Unfortunately, accidents are not something one can rule out completely. However, they can always be avoided if proper preventive measures are taken. Despite that, in case of an accident, there are a few rules and procedures that are mandatory to be followed. These rules are generally set by the Department of Transportation or the Federal Motor Carrier Safety Administration.
It is indeed important to adhere to these procedures in order to avoid unnecessary complications and heavy penalties during an audit. We have discussed earlier about the immediate steps a truck driver should take following an accident. After having a look at the aftermath of a crash involving a truck or a trailer, let us now see what qualifies for an accident according to the FMCSA (Federal Motor Carrier Safety Administration).
What is an accident for the FMSCA?
There is certain criterion the FMCSA follows when it comes to qualifying for an accident. The accident has to be a Department of Transport (DOT) qualifying accident. If the collision meets any of the DOT rules, the FMCSA will consider it as a qualified accident. That is;
- If a vehicle involved in the collision requires to be towing to be taken away from the scene
- A public road accident- means the accident has taken place on a public road
- If there are any human fatalities
- Any injury caused to an individual that demands medical attention away from the accident site
Meeting any of the aforementioned points, qualifies for a DOT approved accident. In this case, the FMCSA would require the accident to be registered and the record of the accident to be maintained for a minimum of three years.
Drug and Alcohol Testing
After an accident, the first legal follow up should be a drug and alcohol test. These tests generally determine which party involved in the crash was at fault, provided the results are positive. Employers generally feel the need to test their employed driver for alcohol consumption and drugs in case of an accident. Unless the employer has an individual policy of alcohol and drug testing which is in accordance with the regulations in their state regarding non-federal testing, they are not allowed to perform any such tests. However, in case of the following situations, an alcohol and drug test may be conducted.
- Any injury caused to an individual that demands medical attention away from the accident site and the driver receives a citation for moving violation
- If the accident has caused one or more human fatalities
- If towing any vehicle involved in the accident is required and the driver receives a citation for moving violation
- If the accident has taken place on a public road
- If it is obvious that the driver was at fault for the accident
After an accident, within how much time must a driver have the drug and alcohol tests completed?
The FMCSA has a time stipulation during which the drug and alcohol tests need to be completed. The driver is required to be available irrespective of it being his fault or not in the accident, until the tests are performed.
DOT Breath Alcohol Test
This test is required to be completed within 2 hours of the accident. It often happens that being engaged at the site of the accident, the driver is unable to take the alcohol breath test within the 2 hour time frame. In this case he needs to document why he was unable to take the test within the time frame and continue to document the same every 2 hours after the accident till 8 hours have passed and he is still unable to complete the test procedure.
DOT Drug Test
It is important that the DOT drug test needs to be taken within 32 hours of the accident. Documentation is required if the test cannot be taken for any reason within the 32 hour time frame.
Tests Conducted at the Accident Site
In some cases, the on-site officer carries the breath analyser for alcohol testing. However, any on-site test result will not be released to the employer owing to the HIPPA laws.
The FMCSA on the other hand has certain requirements to be considered during the procedure of drug and alcohol test. The aftermath of an accident may suggest that the driver gets a blood test done. However, the FMCSA will only recognise and draw conclusions from the urine test for drug testing. For alcohol, they may only go by the breath analyser reports.
As the owner of the company, there is a chance you would not be given any of the details on sample collection procedures. However, it is a mandate that you complete all procedures only through a DOT qualified collection site.
In case of an accident, it is very important to follow the post-accident procedures correctly. Accidents can red-flag your company calling for an FMCSA audit at any time. If the post-accident procedures have not been conducted as per norms or have been skipped, you may have to pay heavy penalties. Therefore it would be wise for an employer to look into the follow up of an accident immediately. You could also hire a Third Party Administrator. This makes dealing with the complexities of DOT qualified post-accident procedures easier.
State Federal Laws for the Trucking Industry
The trucking industry has to comply with federal and state laws that set the bar of rules and regulations to be followed by truck drivers and employers of the trucking companies. These laws help determine who is at fault in case of an accident. The Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA) are the two main pillars of the federal agencies that play a major role at setting these laws.
Every state has its own department of transportation that decides upon the rules and regulations of inter-state commercial trucking.
Commercial Driver Licenses
Following the state statutes and case law on commercial drivers’ licensing is a mandate for the truck driver. Be it any commercial vehicle for that instance, if the driver involved in the collision does not possess the required license, it can be used against him or his employer in the court of law. In this case even if the collision was not your fault, you may be held responsible because of a missing license.
Hours of Service
There are rules pertaining to the hours of service of the driver. The truck driver is required to take necessary breaks during the journey of transporting goods. He is also required to maintain a log or register for the same. The truck driver is not allowed to drive post hours of service or without resting. If it is proved that a driver was driving without sufficient rest, it could hurt his case in court.
Weight of Goods Being Transported
The size of the truck determines the weight it is allowed to haul from one place to another. While single axle trucks are allowed to carry about 20,000 pounds at a time, two axle trucks are allowed 34,000 pounds approximately. Overloading a truck is not only risky but also against the law. Therefore, checking on the weight and load carried by the truck involved in the crash can prove to be helpful during investigation. If the truck was overloaded, the crash would be considered as the truck driver’s fault.
Quality Check of the Truck
Get a thorough check done on the condition of the truck. There are federal laws for ABS (air braking system). If there is any fault in any part of the truck that could have been the cause of the crash, it could be used as a point for legal action. Truck drivers and owners of the trucking company are supposed to make sure that the truck they use for transportation is in top condition.
There are safety regulations for transporting hazardous materials imposed by the Office of Hazardous Materials Safety (OHMS) on the trucking industry. Therefore, if those rules are not met by the driver of the truck or employer, it could be used against him or the employer of the trucking company, in court, in case of an accident. You could consult a lawyer to learn more about these rules.
Liability in Truck Accident Cases
If it is proved that the truck driver or employer of the trucking company is at fault using any of the aforementioned points, the case will automatically fall out of the driver’s favour. The legal theory of “vicarious liability” suggests that the trucking company can be liable for the damages caused by the accident of its employee. In other words, this means the employer of the trucking company is responsible for the accidents that occur during his company’s business hours.
Any negligence while driving proved, for example, violation of rules, etc. would make it easy to prove the fault the driver. Drunken driving, over speeding, being on drugs, etc. is clearly against the law and hence an accident caused under the influence of drugs or alcohol would leave no room for escape. Over speeding can also be used against the driver in court.
Damages That Can Be Compensated For
Learn what damages you can claim compensation for while filing a lawsuit. A few expenses that can be covered are as follows:
Pain and Suffering: You can ask for compensation for the mental stress and physical discomfort that the accident has brought about. This includes stress, pain, anxiety, etc.
Lost Money: Health care post-accident is bound to keep you at a financial loss. You could claim for all the wages lost during recovery period.
Medical Expenditure: You can claim for hospital and doctor fees. You can also claim for medical service at home and ambulance fees.
Lost Capacity to Earn: If due to the unfortunate accident, you have any damages that impair you to earn money in the future; you could file for claim of lost ability to earn. For example a broken arm, leg, loss of memory, etc. can be claimed.
Loss of a Loved One: In case of demise (could be parent, child or spouse) you could file for compensation of loss.
Talk to a truck accident lawyer for best advice on compensations and case related laws. It is important to hire a truck accident lawyer for any legal action post-accident.
As the aforementioned steps are essential to be taken after an accident, there are also a few measures that could be taken as preparation for a mishap. Nobody wants an accident. But in case you or your employee is faced with one, here is what could be handy.
Prepare for an Accident
There are a few things you could use to prepare your driver in case of an accident. You could keep your truck equipped with a fire extinguisher, warning triangles, disposable camera to record images, a pen and paper to note down the happenings immediately after an accident, etc.
It is extremely important to give your employee (truck driver) a reliable 24 hour first point of contact in case of any emergencies or an accident.
Let it Not Repeat
Identify the root cause of the accident and fix it so that it does not happen again.
Check if the driver had enough of time to rest before getting behind the wheel. If not what could be done to help the situation?
If he was in a hurry, then what caused that hurry? Was it his fault or are your company deadlines too stringent?
Check if you have hired a good driver and if you have done the necessary background check of the driver before hiring him. A truck accident can have very serious consequences and hence cannot be taken lightly. It is the duty of the owner of the trucking company to handle such situations responsibly. For more information on procedures post truck accidents, refer to our Truck Driver Accident Procedures Part 1 blog.