Rapid Response Can Really Make A
Difference
We got the call in the afternoon of June 20, 2005. 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. Some
other personal items of our driver were also in the possession of
the police, all later to be returned.
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.
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.
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 has resided in our basement storage room ever
since.
We knew that there had been a tire separation unlike any typical
blow-out. 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. In March 2008 the wrongful death lawsuit was dismissed,
and, we have now dismissed the Federal Court action in the Eastern
District of Virginia. Our client has saved hundreds of thousands of
dollars in what was at first expected to be a policy-limits case.
The point of the story from our standpoint is this: 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.
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