Clear the cache: Managing truck, device data effectively to assist in, prevent litigation

How many of you make it a practice to regularly download truck electronic-control-module data? South Carolina-based attorney Rob Moseley, often representing trucking companies in crash litigation, stresses the value of making it a business routine to do so. Hear more of his rationale in the podcast below, part of his “Law and lawlessness” talk to the Truckload Carriers Association’s annual Safety and Security Division meeting in Charlotte.

Failure to manage the data routinely could lead to situations not at all uncommon, he says, that put the trucker at a distinct disadvantage when accused of fault after a crash.

“From my standpoint, I’m seeing everything post-crash,” he says. “If I see 400,000 miles of history on your ECM download – that’s not good. Let’s have a process of downloading this regularly and not waiting until there’s a wreck.” With such a history at the disposal of plaintiff’s attorneys, there can be a lot to cherry-pick. Truck electronic control modules to varying degrees will show things like maximum speeds, fuel efficiency, “hard stop data, last stop data,” says Moseley.

With regard to the last, attorneys and carriers still deal with the issue of that last stop data being erased “when we recrank the engine,” Moseley says. “Be careful on the scene of an accident. It’s worth paying a tow bill to avoid erasing that data.”

Do the research and know what your engine’s data storage parameters and capabilities are.

Regarding maximum speeds recorded in ECMs, Moseley notes he’s seen “maximum speeds at over 100 mph. I don’t want to see that” from a trucker whose owner he needs to defend.

After an accident, keep such data “through the statute of limitations or when the case is finally finished,” Moseley advises. Otherwise, unless you’re in a lease contract with a carrier that gives that carrier access to your ECM data, what you do with it and how long you keep it around is at your discretion, by and large. In essence, keep it as long as it’s useful to you, Moseley says, developing a written policy that specifies your practice, whether that’s to help with training a driver or due diligence relative to your own driving. “If you don’t make a policy, somebody will be able to Monday-morning-quarterback you to suggest you should be keeping something for such and such a time.”

Such thinking pertains also to location and other data pertinent to the business from cell phones, GPS devices, in-cab video cameras, telematics systems with in-cab messaging and the like. With electronic logging systems, as with paper logs, you’re required to keep a prior six months’ worth of records on hand for an auditor. If you’re a small fleet employing drivers, if any data is showing you the driver doing good things (making on-highway saves, increasing fuel-efficiency, etc.) document those in the driver’s employee file. “That’s going to look a lot better when there’s been an accident,” Moseley notes. “Paper their file with good stuff when you see it happening.” Also document whatever action is taken as a response to data that suggests a pattern that requires a corrective response. “In driver log audits after an accident,” Moseley says, “I often see violation after violation, but I don’t always see a documentation of somebody talking to the driver about his logs. Some will say it happened, but it’s not recorded. We have to record not only the data but also our reaction to that, which may be more important than anything. What did we do,” as a trucking company owner, “to respond to that data?”

The future: ‘Failure to equip’ litigation?
In the increasingly data- and technology-heavy world, where the plaintiff’s bar goes in accident litigation, Moseley envisions, could eventually encompass not only data from systems in place but the failure to use available safety technologies. He notes that the majority of carrier entities, being the smallest carriers, “don’t have e-logs, and most don’t have telematics.”

What if, he asks, “you didn’t use” some available safety technology, such as an active braking assist technology, that could have assisted in mitigating the severity of or preventing an accident. “The Monday morning quarterbacking that goes on after an accident” in litigation could present problems. “It somebody says it’s the industry standard to have this equipment and you don’t have it,” liability arguments can be made.

The industry is not to that point with many of the technologies Moseley talked about, though proliferation of cameras, ELDs and other techs is proceeding at a very fast pace. “The plaintiff’s bar hasn’t been able to really push very far forward on this one,” he says. “FMCSA regulations are the minimum standards, they say, and you should be doing more than the minimum, but this is somewhere they haven’t gotten to much success.” Yet. “What you’ll see,” for instance, he adds, is in the case of a “driver you know is falsifying logs and you haven’t put that driver on e-logs – that’s where you’ll see plaintiffs’ success. Or say your engine comes factory-equipped to record certain parameters but you’ve turned some of them off.”
from Overdrive http://ift.tt/1Ieb2ti

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