Trucking defense attorney Rob Moseley stresses the value of making it a business routine to download and analyze data from your truck’s electronic control module. Failure to manage the data could lead to situations, he says, that put the trucker at a distinct disadvantage when sued for liability after a crash. He’s seen ECMs logging speeds over 100 mph.
“If I see 400,000 miles of history on your ECM download, that’s not good,” he says. Only around a third of owner-operators responding to the following 2015 poll noted they ever downloaded anything from their ECM themselves:
Do you manage your ECM data?
“Let’s have a process of downloading this regularly and not waiting until there’s a wreck,” Moseley says. With such a history at the disposal of plaintiff’s attorneys, there can be a lot to cherry-pick. Truck ECMs will show things such as maximum speeds, fuel efficiency and “hard-stop data, last-stop data.”
With regard to the last item, the concern is the opposite – having that critical evidence deleted “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.”
Consult your engine’s owner’s manual or online or dealer resources to learn your engine’s data storage parameters and capabilities.
After an accident, keep such data “through the statute of limitations or when the case is finally finished,” Moseley says. 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.
He recommends keeping it only as long as it’s useful to you and 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,” Moseley says.
Such thinking also pertains to location and other data gathered by cell phones, GPS devices, in-cab video cameras and telematics systems with in-cab messaging. 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 employ drivers, when data shows the driver doing good things such as making an emergency response or increasing fuel efficiency, document those in the employee file. “That’s going to look a lot better when there’s been an accident,” Moseley says. “Paper the file with good stuff when you see it happening.”
Also document whatever action is taken as a response to data that suggests a need for a corrective response. “In driver log audits after an accident, I often see violation after violation, but I don’t always see a documentation of somebody talking to the driver about his logs,” Moseley says, “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.”
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 such technologies, 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.”