The Accident Register: Overview
A motor carrier is required to prepare and maintain a list of certain accidents. This “accident register” provides significant information regarding the type of accidents involved. It may allow a motor carrier to be compared statistically with other motor carriers using data available on the SAFER system database. Further, the motor carrier is required to maintain certain accident reports that further describe the accident(s) listed on the register.
The Accident Register
49 C.F.R. requires as follows:
1. Motor carriers and intermodal equipment providers must make “all records and information” pertaining to an accident available to the FMCSA, authorized state or local law enforcement, or authorized third party representative within such time as the particular request or investigation may specify.
2. Give an authorized representative “all reasonable assistance” in the investigation of an accident, with “full, true, and correct response” to any inquiry.
3. For accidents occurring after April 29, 2003, motor carriers must keep a register for three years after the accident, including “at least:”
a. A list of accidents;
b. Date of accident;
c. City, town and state where accident occurred;
d. Driver name;
e. Number of injuries and/or fatalities;
f. Whether a hazardous materials spill, other than a fuel spill, occurred during the accident;
g. Copies of all accident reports required by State or other Governmental entities or insurers.
4. An “accident” for the purposes of the register is “an occurrence involving a [CMV] on a highway in interstate or intrastate commerce which results in:
a. a fatality;
b. bodily injury to a person who, as a result of the injury, received immediate medical treatment away from the scene of the accident; or
c. one or more vehicles receiving disabling damage that requires towing.
5. An “accident” does not include an occurrence involving only getting on or off a stationary vehicle or loading or unloading cargo.
Of note, 49 C.F.R. was recently amended effective June 17, 2009, to apply to intermodal equipment providers as well as motor carriers.
Observations
Motor carriers often resist the production of an accident register for several reasons. It involves accidents other than the one at issue. It may contain quasi-private information, such as information concerning drivers not involved in the instant accident, or victims of other accidents. It is a report required by the government, and may be inadmissible in court under 49 U.S.C. 504(f). But the main reason the motor carrier does not want to produce the register is because it discloses how many other accidents it has had, how many people have been injured or killed, etc.
Note that a motor carrier may include other information related to accident because regulation is an “at least” rule. That other information can be valuable. The motor carrier may selectively produce just the information pertinent to this accident. This can make the request for the remainder of the register a bit more difficult, in that such a response at least bears the semblance of something reasonable. It may be worthwhile to push for the rest of the register and its associated documents. This may require some showing of how there is a pattern or practice of conduct at play, which may be too revealing of the plaintiff’s strategy. The judgment call must be based on the circumstances present in a particular case.
The accident register may also include reports required by insurers. The motor carrier will likely argue that this information is work product, even if the rest of the register is not. The issue then becomes the timing of when counsel was retained, the role of counsel at that time, etc. Counsel should endeavor to determine what disappeared since the incident, and requests or motions to compel should be phrased with that in mind. For example, if the plaintiff did not have the opportunity to inspect the truck, inventory its contents, or photograph the scene, a claim of substantial need may justify disclosure of the insurer’s report, which would likely contain those components. However, the regulation does not require that the motor carrier keep copies of reports from insurers, such as adjustor’s reports, which are typically the insurer’s own internal documents.
Broader questions regarding the proper scope of discovery are beyond the realm of this book. Nevertheless, these materials should not be concealed by an argument they are part of a “privileged” accident register or somehow constitute work product. At the least, discovery should determine what the motor carrier had to give the insurer and what it got back from the insurer (such as witness statements or a list of empty prescription medication bottles found in the floorboard), so that counsel can make a decision about what to specifically seek. If the motor carrier keeps police reports from prior accidents, those can be valuable to determine whether the accident was part of a systemic problem not addressed by the motor carrier before a client was injured by the same problem. If the reports show three accidents in the past year where the driver was speeding because he had a tight delivery time frame, and the client’s accident involves the same thing, there is a much stronger argument that the information is relevant and discoverable.
It may be advantageous to document a willingness for the names of other drivers to be redacted in order to alleviate a concern, and avoid a defense, of potential disclosure of private information. It is instructive to note what the thorough investigation uncovered in the Schlegel case, discussed above. In any event, a request for the accident register of all accidents the subject driver had is crucial. Again, if this was the third one he had while speeding, that would be an argument worth developing.
Pertinent Case Law
Little case law appears to cite this regulation. A Colorado federal district court has held that the destruction of the accident register did not constitute spoliation. In Salvatore v. Pingel, the court noted that the plaintiff “has all the information required to be maintained in the Accident Register…[t]he date of the accident, its location, the driver’s name, and any injuries sustained are not subject to dispute…the plaintiff has copies of all accident reports concerning the accident.” Thus, because plaintiff could demonstrate no prejudice, the court would not sanction the defendant. The plaintiff would have possibly had more success by arguing that he wanted to review the other accidents contained in the register to determine whether there was a trend of violations of the rules of the road or the regulations. However, this would likely have been dismissed as a fishing expedition given the court’s overall limited and narrow approach to the discoverability of the information sought.
Recent authority supports the conclusion that the preparation of an accident register is in fact privileged from production under 49 U.S.C. 504(f), even without a corporate official swearing that the accident register was prepared with an eye to 504(f).