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Thousands of people are injured each year in accidents involving commercial trucks. These vehicles, which sometimes weigh as much as 80,000 pounds, can cause enormous damage to cars and their occupants in an accident. Attorneys representing the victims in such cases face the challenge of proving negligence on the part of the truck driver, the trucking company in maintenance inadequacies, or the truck manufacturer. Fortunately, attorneys have a powerful ally in proving each of these claims.
Most trucks manufactured in the United States since the 1990's have an Electronic Control Module (ECM) integrated with their engine components. Euphemistically referred to as a "black box", the ECM is similar to that used in commercial airliners. These “black boxes” are designed to capture a variety of on-going data regarding the operation of the truck. Specifically, ECM's record operational data over a period of time (usually thirty days) including: Overall average speed; highest speed; time driven; amount of time driving over 65 miles per hour; average revolutions per minute (RPMs); seat belt usage; air bag performance; and idling time.
ECM's were originally designed by truck manufacturers to counter invalid engine warranty claims resulting from purchaser abuse. Increasingly, however, these devices have proven useful to victims in truck accident cases through their ability to provide factual data regarding truck operation that may have been a causal factor in the accident. ECM's, for instance, often include data showing the number of hard stops, as well as the speed and number of RPM's before the stop. Because the ECM also records usage data, it can be compared to a driver's personal log to determine if his actual driving time was in excess of that recorded in the ECM data.
There are several urgent issues that require an attorney to move quickly in the case of an accident to ensure that valuable ECM data is preserved:
Recording Time Limits
ECM's typically record data for a period of thirty days, though some older units record for much smaller periods of time. Whenever the recording capacity of the ECM is exceeded, it begins recording over previous data, effectively erasing it. Attorneys should move quickly following an accident to preserve data from trucks involved in the incident.
Destruction of Data
A number of states have passed legislation making the data recorded on the ECM the property of the trucking company. This means, technically, that the trucking company may destroy data immediately following an accident unless it is subject to a court restraining order. Some states restrict destruction of this data when it may reasonably be the subject of civil action (Maryland, for instance). Insurance companies may also have specific clauses that give them the right to download ECM data in the event of an accident.
Preservation of Additional Data
In addition to the ECM module, some trucking and delivery companies utilize a cab electronic module that records dispatching or delivery information. Data from this module is often downloaded by the owner onto his company servers. It may yield useful information regarding hours of service, truck maintenance, or vehicle performance.
Steps an Attorney Should Take to Preserve the Black Box
ECM data can be invaluable as a means of proving driver fatigue or negligence by the trucking company. When driver or company logs differ from the ECM usage data, it is a strong indication of poor internal control by the company in ensuring compliance with trucking regulations.
Considering how valuable this evidence can be to a person who has been injured in an accident, the plaintiff’s attorney must take a number of steps to preserve and properly interpret the data taken from the black box. First, they must either reach written agreement with parties to the accident, or file an immediate protective order, to ensure preservation of the ECM data on the truck involved in the accident.
Next, it will be necessary to document who has custody of the vehicle and seek a court order strictly limiting access or movement of the vehicle and ECM unit prior to inspection by the attorney or his experts. It is necessary to specifically request the ECM data, and any other automatically recorded on-board data, from the trucking company, their attorney, and their insurance carrier.
There are additional steps that can be taken as well. For instance, if a truck was traveling immediately in front of, or behind the truck involved in the accident, a plaintiff’s attorney should seek ECM data from that vehicle as well. The fact that this vehicle was able to stop safely may lend credence to an argument that the driver of the accident truck was negligent.
Select a qualified company to read the ECM data, or if the information is being downloaded by an insurance company or others, ensure that a representative from the firm is available to witness the removal of the ECM from the vehicle and downloading of the information.
The black box contains a lot of important information that can help a person recover damages after an accident with a truck accident.