Menu

Bits & Pieces

October 2019

CAB Bits & Pieces October 2019

Good Day CAB Nation!

Welcome to fall! The northern portion of the country is certainly on a cooling trend and the beautiful fall colors are in full bloom. In some areas the snow has even made an early appearance. If you celebrate Halloween, make sure to stay safe and don’t eat too much candy!

CAB was fortunate to attend and present at a number of events the last couple months including MCIEF and IMUA. We hope we were able to connect. If not, please feel free to reach out. As you know we enjoy educating the industry on what we do – keep us in mind for future programs you may be running.

Follow us at: CAB LinkedIn Page CAB Facebook Page

Have a great month!

CAB’s Tips & Tricks: 

Did you know CAB’s website is fully customizable? You can customize your landing page, the sections of CAB’s Web Report and even the PDF CAB Report® that gets sent to you via email. Accessing your Profile is quick and easy. On the menu at the top of each CAB page, just click “My Account’ and then scroll down to ‘Profile’ and click. You’re now in ‘My Settings”

In the ‘Profile” page you can choose your ‘Default Page’ so when you open CAB you automatically go to Carrier Central (default), Dashboard, VITAL® or SALEs depending on what area of the site you use the most.

The ‘Profile’ is also where you can change your password. Within the ‘General Preferences’ you can elect to receive a PDF copy of the CAB Report® via email, automate schedule reports and even schedule report frequency.

‘CAB Report® Settings’ allows you to add or remove sections of the web and PDF CAB Report® as well.

Violation Alerts, Radius Buckets, Radius Alerts, Radius Circles and Hot Zones™ (States & Counties) can be customized as well in this area as well.

One of our goals is to provide our users the tools, resources and customization to help streamline workflow. By allowing each user to customize how CAB is viewed, we hope it helps contribute to the success of each user’s workday.

We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are customer driven. Our goal is to help you Make Better Decisions!

This month we report:

ATRI Releases Critical Issues in the Trucking Industry Report-2019: In order, the top five issues are Driver Shortage, Hours of Service, Driver Compensation, Detention/Delay at Customer Facilities and Truck Parking. The list was compiled using more than 2000 survey responses from motor carriers and drivers. In addition to identifying the top issues, the report also identifies three proposed strategies for each of the issues. The annual report provides critical insight into the main issues affecting the trucking industry. To request the full report from ATRI, click here.

IRT Update: USDOT’s Office of the Inspector General (OIG) finds FMCSA’s Safety Measurement System Plan Lacks Details and Faces Hurdles. The OIG reported that while FMCSA’s corrective action plan addressed motor carrier safety interventions, it lacked implementation details for improving transparency and its assessment of carrier safety rankings. The report acknowledges that additional data points will not be collected by the FMCSA. The GOA acknowledged that the plan provides that datasets will be exhibited on a publicly available website but fails to identify how they will make them user-friendly, or outline costs and implementation steps—hindering FMCSA’s efforts to make its data, safety measures, and rankings more transparent. Finally, the complexity of the IRT model may make implementation and public outreach difficult.

What does this mean? Ultimately, the end of the report noted that IRT Modeling was to be completed by September, 30, 2019. After that review, but no later than September 30, 2020, the FMCSA will decide how to move forward. For more information on the Audit Report, click here.

NHTSA Releases 2018 Fatal Motor Vehicle Crashes: Overview. Overall, fatal motor vehicle crash fatalities decreased 2.4 percent from 2017, fatalities in crashes involving large trucks increased by 0.9 percent during the same time period. Table 2 shows fatalities in large truck crashes by person type (included in Table 2 are the old final and amended final 2016 numbers for persons killed in crashes involving large trucks). Among fatalities in crashes involving large trucks in 2018: Nonoccupants had 48 more fatalities, a 9.7-percent increase from 2017; large-truck occupant fatalities in single-vehicle crashes increased by 10, a 1.9-percent increase from 2017; Large-truck occupant fatalities in multiple-vehicle crashes decreased by 3, a 0.8-percent decrease from 2017; and Occupant fatalities in other vehicles decreased by 9, a 0.3-percent decrease from 2017. The full Traffic Safety Facts Research Note can be accessed here.

Limousine Safety has the Attention of Congress-Three Bills Introduced: Three federal bills were introduced to address safety regulations for stretch limousines following a number of deadly limo crashes in recent years, The Safety, Accountability, and Federal Enforcement of Limos Act (SAFE Limos Act), the Take Unsafe Limos Off the Road Act, and the End the Limo Loophole Act.

The SAFE Limos Act would require: Lap and shoulder belts for each seating position in new limousines; Safety requirements for seat strength and integrity for new vehicles; Retrofitting existing limousines with lap and shoulder belts and seat systems; Federal safety standards when altering vehicles for limousine use; Federal guidelines to assist limousine modifiers; Research about the impact of crashes and airbag system protections; Operators to disclose inspection results; and Installation of event data recorders to aid investigations.

The Take Unsafe Limos Off the Road Act, includes a grant program to support the impound or immobilize vehicles that don’t pass safety inspections.

The End The Limo Loophole Act would amend the definition of a commercial motor vehicle (CMV) to include vehicles that transport more than nine people including the driver. This change would ensure federal safety rules would apply to limousines. Currently, the rules state that a CMV is defined as a vehicle designed to transport more than 15 passengers, including the driver.

FDA Launches FDA-TRACK: Food Safety Dashboard to Track Food Safety Modernization Act. (FSMA): The Food Safety Dashboard is designed to track the impact of the seven foundational rules of the FSMA, measure their progress, and help the FDA continue to refine their implementation. The dashboard is available as part of the FDA-TRACK program, the FDA’s agency-wide performance management system. The FDA will track outcomes for three FSMA rules in the areas of inspections and recalls:

  • “Current Good Manufacturing Practice, Hazard Analysis and Risk-Based Preventive Controls” rules for both human food and food for animals (preventive controls rules).
  • Imported food safety, including data relevant to the “Foreign Supplier Verification Program” (FSVP) rule.

Over time, the Food Safety Dashboard will be populated with additional data to show more FSMA outcomes. Additional information on the Food Safety Dashboard can be found here.

FMCSA’s Hours of Service Notice of Proposed Rulemaking Comment Period Ends: With over 2700 comments posted, the agency has its work cut out for them to craft a solution that addresses the different segments of the trucking industry. The proposed changes address the following areas: Short Haul, Adverse Driving Conditions, 30 Minute Rest Break, Split-Sleeper Berth and Split-Duty. With the amount of comments posted, there is clearly diverse opinions when it comes to what stakeholders feel should be done. To review the proposal, click here.

CAB Calculates Updated BASIC Percentiles: For each BASIC category and power unit range, a) the percentage of carriers in different percentile ranges out of carriers with a percentile, and b) the percentage (out of all carriers) of carriers with a percentile, and of carriers without a percentile due to each of the following three reasons: 1) carrier had no relevant inspections, 2) carrier had no relevant violations, and 3) carrier had violations, but they were too few or occurred too long ago to get a percentile. For the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Percentiles are as of the snapshot date listed at the top of the section. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included. Snapshot date: 9/27/19.

Federal Motor Carrier Safety Administration (FMCSA) Opens Registration for CDL Drug & Alcohol Clearinghouse: Registration is open for the Commercial Driver’s License Drug and Alcohol Clearinghouse. Commercial driver’s license (CDL) holders, employers, medical review officers, and substance abuse professionals can register for an account at https://clearinghouse.fmcsa.dot.gov .

Registration is required to be able to access the clearinghouse once it is fully implemented on January 6, 2020. To access the clearinghouse, authorized users must register. These users include: Drivers who hold a commercial driver’s license (CDL) or Commercial learner’s permit (CLP) ; and Employers of CDL drivers. This further includes those who employ themselves as CDL drivers (owner-operators), typically a single-driver operation; Consortia/Third-Party Administrators (C/TPAs); Medical Review Officers (MROs); and Substance Abuse Professionals (SAPs). For more information on registering click here.

US DOT Releases FY2020 Top Management Challenges: In relation to the trucking industry and commercial motor vehicles, the key challenges are: Ensuring commercial drivers are qualified, prioritizing motor carriers for interventions and estimating the impact of driver detention. Chapter 6 of the report specifically addresses those key challenges and is titled: Enhancing Enforcement and Data Analysis to Reduce Commercial Vehicle-Related Fatalities. To review the complete report, click here.

Unified Carrier Registration (UCR) Data may have been Exposed due to Website Vulnerability Affecting 30,000 Registrants: The issue potentially exposed the registrants Tax ID number for a period of 28 days, from March 1st to March 28th. UCR System reported that Tax ID number was displayed in the status bar of the web browser of the receipt created upon completion of the registration process in the National Registration System. Immediately upon learning of the website vulnerability on March 28, the UCR eliminated the website vulnerability by completely removing the use of Tax ID numbers in the National Registration System. The organization released a statement reporting that there is no indication of a mass export of Tax ID numbers during the vulnerability period. A To review the complete statement, click here.

Audit of FMCSA’s Oversight of CDL Disqualifications to be Completed by US DOT: The DOT announced a self audit of how the FMCSA reviews state CDL programs to make sure they are compliant with the requirements for disqualifications of drivers. Earlier this year, a fatal crash involving a commercial driver led to an internal investigation by the Massachusetts Registry of Motor Vehicles (RMV) that found that RMV had not systematically processed out-of-State paper notifications of driver convictions in about 5 years. The investigation also identified a software flaw that hindered RMV’s ability to timely process out-of-State electronic notifications. Consequently, in summer 2019, RMV issued thousands of CDL suspensions, based on previously unprocessed out-of-State notifications. To review the complete DOT OIG Memo, click here.

 

CASES

Auto
A trucker was successful in obtaining partial judgment on the pleadings on the basis of failure to state a claim The District Court in New Mexico held that the plaintiff failed to allege any facts to support claims against the trucker for negligent supervising or monitoring, aiding and abetting, and statutory violations (negligence per se). Schmidt v. Jones, 2019 WL 4820136. In a related decision the court also dismissed a claim for punitive damages when the defendant showed there was no basis for such a claim and the plaintiff failed to even respond to that portion of the motion. 2019 WL 4854198

Plaintiffs could not survive a summary judgment motion in the District Court in Illinois because the evidence showed that icy conditions caused plaintiff’s car to spin out of control. Plaintiffs did not present any evidence that the truck driver drove negligently or with intentional or reckless disregard for others. Perez v. K&B Transportation, 2019 WL 4749989

While it appeared that an insurer had no coverage under a policy because of an excluded driver endorsement and argued that its obligation was limited to $100,000 under the Form F, the Court of Appeals in Georgia remanded the case back to the trial court because it failed to indicate its reason for the dismissal of the suit. Without a specific ruling by the court the Appellate Court could not issue a ruling. National Indemnity Co. v. Lariscy, 2019 WL 5417290.

The Court of Appeals in Indiana refused an insurer’s request to vacate a default judgment entered against a motor carrier. The court held that the insurer’s interest in the case was contingent on whether the MCS-90 endorsement applied. That interest did not warrant permitting the insurer to re-litigate insured’s liability in effort to limit potential future financial obligation. Prime Insurance Co. v. Wright, 2019 WL 4678394

Efforts to dismiss an action which asserted a negligence claim based, in part upon violation of safety regulations, was unsuccessful in the Southern District in Illinois. In addition, the court held the defendant’s argument that the plaintiff was pursuing a “reptile theory” was not sufficient to permit dismissal of the complaint. Diego Miller v. PAM Transport, 2019 WL 4962954

Can you get cell phone records? The District Court in Kansas would not permit a broad subpoena of the truck driver’s cell phone records, agreeing that a 3 hour window surrounding the accident was appropriate. Subpoenas to his prior employers for employment records were quashed. Schumacher v. Hardwood Specialty, 2019 WL 4689459

The Court of Appeals In Tennessee upheld the grant of summary judgment to a trucker and broker for damages sought by a forklift operator while operating his forklift within the confines of the trailer of a tractor trailer. The court held that the motor carrier proved that it had not hired the carrier and further agreed that the broker bore no liability for the loss. Hashi v. Parkway Xpress, LLC. 2019 WL 5431858

An injured party’s assertion that it was not a relevant party to the coverage action filed by an insurer defending a trucking company was not accepted by the Eastern District in Oklahoma. The court concluded that he was a proper party in light of the interest in whether there would be an insurance policy to recover from. Shelter Mutual Insurance Co. v. Fritz, 2019 WL 781867

A 35 million dollar punitive damages claim was upheld by the Appellate Court in Illinois. The court held there was enough evidence to establish that the trucking company consciously disregarded a known safety risk by employing driver who subsequently collided with motorist, supporting a punitive damages award in favor of motorist on claim for negligent hiring and retention; company hired driver despite a long history of driving violations involving substantially similar conduct to that at issue in motorist’s case, retained driver after he continued to violate company policies, and failed to monitor his motor vehicle record or notice that his license been suspended at time of accident. Denton v. Universal Am Cam,. 2019 WL 181525

The Southern District in Texas allowed a claim for gross negligence to proceed when there was evidence that the truck driver was using a flip phone while operating the vehicle also leaving open the question on whether the carrier was grossly negligent by authorizing or ratifying his actions. Plaintiff’s claims for negligent hiring, screening, supervision, and retention were dismissed. Denham v. Bark Rier Transit, Inc., 2019 WL 4887256

A default judgment for $533,227.64 was entered against a trucking company and the driver in the Middle District of Pennsylvania. The tractor trailer forced the plaintiffs’ vehicle off the road causing them to swerve between the truck and the median before striking an embankment, resulting in severe damage to the vehicle and injuries to the occupants, one of which was ejected. Thompson v. Chinea, 2019 WL 4917953

A pilot car company was successful in having a complaint dismissed against it. The District in New Mexico concluded that the plaintiff failed to state a cause of action against the pilot cargo for injuries when the plaintiff’s vehicle was struck by the tractor trailer it was piloting. The court did leave open the option that plaintiff could assert specific facts to support its negligence claim and amend the complaint. Gatewood v. Thompson, 2019 WL 4889161

A truck driver was permitted to pursue a claim against a loader when the driver was injured when he tried to unload the excess salt that the defendant had negligently loaded onto plaintiff’s truck. The Appellate Court in Illinois held that there was a duty of care owed to the driver. Burns v. Compass Minerals America, 2019 Il App. (1st) 180447-U

“Regardless of whether the Crash Indicator rating is a reliable predictor of future crashes, or the FMCSA decides to make changes to the rating in the future, the Crash Indicator remains one of the seven different safety parameters monitored by the FMCSA and reported to specific motor carriers. It may be relevant to Plaintiffs’ punitive damages claim because it speaks to Defendants’ knowledge regarding the risks of their operation to the public” So says the Western District in Kentucky in concluding that a motor carrier was required to produce SMS data. In addition the carrier was required to produce evidence of prior crashes, along with certain employee information. Burrell v. Duhon, 2019 WL4918771

The Court of Appeals in Iowa rejected a truck driver’s request for a new trial when he failed in his effort to seek damages for a load he claimed was improperly unloaded from his vehicle. The cargo struck the plaintiff. The court accepted the testimony of the defense expert who concluded that the driver failed to make sure that the load was properly loaded in the first place. Goebel v. Green Line Polymers, 2019 WL 4678169.

The business use exclusion in an auto policy was held applicable to a plaintiff’s PIP claims when there was other coverage to respond. The Court of Appeals in Michigan held that Michigan No-Fault law permitted such a conclusion. The policy exclusion provided that when the covered auto (i.e., semi-truck) is used for a lessee’s business and the lessee has sufficient liability and no-fault insurance for the auto, the auto insurer was not obligated to pay insurance benefits in the event of an accident that occurs during this use. Vantol v. Home Owners Insurance Co., 2019 WL 5418357

The Eastern District of Virginia held that a motor carrier’s insurance policy did not cover defendant’s claim for damage to its vehicles because the employee driving the vehicles was not a covered driver under the policy. The policy requirements that the driver have two years commercial vehicle experience and an approved MVR were held valid. Certain Underwriters at Lloyds v. Amlin Underwriting, 2019 WL 5459057

A jury verdict concluding that a truck driver was only 25% at fault, with the plaintiff 75% at fault was upheld by the Court of Appeals in Mississippi. The court held that the jury’s allocation of fault was not against overwhelming weight of evidence, and the damage award was not so low that it could only have been returned by jury influenced impermissibly by bias, prejudice, or passion. Anderson v. Salaam. 2019 WL 4632020

Did the truck accident cause the plaintiff’s injuries or were they pre-existing? The Eastern District in New York held that it was a question of fact when the doctors disagreed. Send it to the jury to decide! Marrero v. Clemmons, 2019 WL 4752371

You can’t get punitive damages just because you allege them. The Northern District in Oklahoma held that the record was devoid of facts to support a claim of punitive damages against a truck driver and his employer. There was no clear and convincing evidence that the driver acted with reckless disregard. Nikoghosyan v. AAA Cooper Transportation, Inc., 2019 WL 4992100

Cargo
Loads loaded hot – you have all seen those claims made. The Appellate Court in Illinois upheld the lower court finding that the cargo owner failed to show a prima facie case that a shipment of cheese was properly precooled before loading. The court also held that the broker owed no duty to the cargo owner to safeguard the shipment after rejection to permit salvage. At least the shipment went to a food bank (which you all know is near and dear to my heart!) DeliSource v. Nationwide Transportation, 2019 Il. App (2d) 180979

Is a claim that a motor carrier double brokered a load subject to the preemptive effect of the Carmack Amendment? The District Court in Oregon held that the broker’s breach of contract and state law indemnity claims were not alleged to arise out of the bill of lading or an assignment of rights but rather were based upon failing to transport goods using the agreed upon equipment. The breach would exist even if the goods were never damaged. As the broker was not “stepping into the shoes” of the shipper to sue the carrier, the claims were not preempted by the Carmack Amendment. Federal Insurance Co. v. Royal Auto Trans, Inc., 2019 WL 4920874

What happens when a broker agrees to transport goods by a certain date and fails to do so? In a world where a difference in delivery dates results in imposition of increased tariffs? The Southern District in Ohio held that the claims against the broker were not preempted by Carmack. Plaintiff’s allegations concern self-(not state-) imposed obligations which were outside the scope of Carmack. Heliene v. Total Quality Logistics, 2019 WL 4737753

While a household goods broker was successful in having both the Carmack Amendment claim, and the negligence claim, dismissed, it was not successful in getting a breach of contract claim dismissed. The Southern District in Texas held that plaintiffs identified specific breaches, including failure to counsel on which motor carrier to employ and how much to insure their property as the negligent services, breach of an indemnity agreement and breach of an oral settlement agreement. The case on that cause of action was permitted to proceed. Biesemeyer v. Plus Relocation Services, Inc., 2019 WL 4991532.

This happens so many times! The motor carrier was unsuccessful in asserting a nine month time limit when it could not prove that it gave the plaintiff the back side of the bill of lading where the terms were contained. The District Court in New Jersey did, however, dismiss the breach of contract claim and the consumer fraud claim as preempted. Kotick v. Atlas Van Lines, 2019 WL 5388163

Worker’s Compensation
Under Florida law, even if the claimant is acting in good faith, he can be held liable for costs if he fails to be successful in his worker’s compensation claim. The court was not pleased at the fact that it was mandatorily obligated to impose these fees and recommended that the Legislature correct the statute. Coto v. Univision, 2019 WL 4655984

When did the injury occur? When the plaintiff filed a worker’s compensation claim for a 2013 injury but failed to notify his employer of a 2014 injury the motor carrier was unable to claim that the injuries were truly caused by the second loss. The Supreme Court of Tennessee held that the driver sufficiently established injuries from the first event to support a worker’s compensation payment. Moser v. Hara, Inc., 2019 WL 4678324

Up the ladder employers are always being considered when there is an absence of worker’s compensation insurance. The Supreme Court in Kentucky held that it was appropriate to remand a case to an ALJ to examine the issue of whether a transportation broker that leased trucks and trailers are part of its business model qualified as an up the ladder employer for the purposes of worker’s compensation obligations. Tryon Trucking, Inc. v. Medlin, 2019 WL 4688811

Thanks for joining us,

Jean & Chad

September 2019

CAB Bits & Pieces September 2019

Good Day CAB Nation!

We hope your September is great. We’re certainly upon busy season in the industry. Many of us will be in Orlando for the MCIEF in early October. We will have a table at the conference and we encourage you to come by and visit. We’ll have some fabulous gifts and prizes. We hope to see you there!

Later on this month Jean will be presenting at the IMUA Southeast Regional Meeting on current issues with cargo exposures. Come on by –Click here to learn more about the program:

Follow us at: CAB LinkedIn Page CAB Facebook Page

Have a great month!

CAB’s Tips & Tricks: This month’s tip is located in the CAB Report® on the General Tab. Some of you may have already discovered it, but is serves an important purpose to help understand the ISS-CAB value. Have you ever wondered why a motor carrier has been assigned a specific ISS-CAB color, be it red, yellow or green? Well, we have a quick way to figure it out.

We know CAB-ISS values and colors are based on different CAB BASIC Scores being in or out of Alert level. Certain BASICs Categories are best addressed at the roadside via intervention. Users have wondered why is the ISS-CAB color yellow instead of red or the like. In order to find that out, I encourage you to hover (don’t click) over the words *Why this score? (Green arrow). As the image below shows, a box will appear that will tell you the reason for the score.

There are numerous variations of CAB BASICs scores that create the ISS-CAB numerical value. Next time you’re reviewing a CAB Report® make sure to hover over *Why this score? to better understand why a motor carrier has been assigned a certain value and color.

We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are a customer driven company and our goal is to help you Make Better Decisions!

This month we report:

Driver Detention Study Shows Negative Effect on Productivity & Regulatory Compliance: American Transportation Research Institute (ATRI) recently released a study that delved into the relationship between shipper detention time and what happens on the road. It was found that detention has a significant impact on drivers’ ability to comply with Hours of Service (HOS) regulations. Both frequency and time has increased from 2014-2018. These increased detention times can frustrate drivers and put them behind schedule. Additionally, this situation could result in the driver taking additional risks to get the load delivered on time. The study also noted that women drivers are even more affected than men. The report noted that women were 83% more likely to be delayed six hours or more compared to men. CAB also reports on the amount of time that a motor carrier actually spends being inspected – another negative impact on productivity. If you’d like additional information on the ATRI study, please click here.

Trucking Company Failures Continue in 2019: Thus far in 2019, well over 600 motor carriers have failed. That number is more than double all of 2018, which were just over 300 companies. The blame seems to fall on the reduction of spot rates and a hangover from one of the greatest years in trucking, 2018. Other contributors included are tariffs and increased driver pay. The pain will likely continue as pricing will likely struggle into the near future.

CVSA Releases 2019 Operation Safe Driver Week Results During the Commercial Vehicle Safety Alliance’s (CVSA) Operation Safe Driver Week, July 14-20, 2019, commercial vehicle enforcement personnel in Canada and the United States took to North America’s roadways to identify drivers engaging in unsafe driving behaviors and issue citations and/or warnings. Officers issued 46,752 citations and 87,624 warnings to drivers for traffic enforcement violations, ranging from speeding to failure to wear a seatbelt. Drivers’ actions contribute to 94% of all traffic crashes. The Operation Safe Driver Week enforcement initiative is the commercial motor vehicle (CMV) law enforcement community’s response to this transportation safety issue. Through traffic safety initiatives, such as Operation Safe Driver Week, law enforcement personnel aim to deter negative driver behaviors and reduce the number of crashes involving large trucks, motorcoaches and passenger vehicles by identifying and citing drivers exhibiting risky driving behaviors and tendencies.

 

 

 

 

During this year’s Operation Safe Driver Week, passenger vehicle drivers received 16,050 state/local driver citations and 29,145 warnings, and CMV drivers received state/local driver 6,170 citations and 27,163 warnings. For more information on the results, click here.

CAB Calculates Inspection Selection System (ISS)-CAB Ranges Based on Power Units: The first table shows, for each power unit range; the number of carriers with “safety” scores in the green, yellow, and red ranges, and the total number of carriers with a “safety” score or an “insufficient data” score. The second table shows the data as percentages, out of carriers with “safety” scores or out of all carriers as appropriate. ISS scores are as of the snapshot date of 9/10/19. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included.

U.S. DOT Awards over $77 Million in Grants to Improve Commercial Vehicle Safety: The grants were awarded to states and educational institutions.

$43.3 million in High Priority (HP) grants was awarded to enhance states’ commercial motor vehicle safety efforts, as well as to advance technological capability within states. FMCSA’s High Priority (HP) grant program is designed to provide financial assistance to state commercial vehicle safety efforts, while HP-ITD grants provide financial assistance to advance the technological capability and promote the deployment of intelligent transportation system applications for CMV operations. A full list of this year’s HP grant awardees can be found here.

$32 million in Commercial Driver’s License Program Implementation (CDLPI) grants to enhance efforts by states to improve the national commercial driver’s license (CDL) program. This program provides financial assistance to states to achieve compliance with FMCSA regulations concerning driver’s license standards and programs. A full listing of this year’s CDLPI grant awardees can be found here.

$2 million in Commercial Motor Vehicle Operator Safety Training grants to sixteen education institutions to help train veterans for jobs as commercial bus and truck drivers. FMCSA’s Commercial Motor Vehicle Operator Safety Training grant program awards grants to a variety of educational institutions that provide commercial truck and bus driving training. A full listing of this year’s grant awardees can be found here.

CVSA Releases Results from 2019 International Roadcheck: On June 4-6, 2019, inspectors conducted 67,072 inspections on commercial motor vehicles in Canada and the U.S. as part of the Commercial Vehicle Safety Alliance’s (CVSA) International Roadcheck. During those three days, 12,019 vehicles were removed from roadways due to critical vehicle inspection item violations and 2,784 drivers were placed out of service for driver-related violations. That’s a 17.9% overall vehicle out-of-service rate and a 4.2% driver out-of-service rate.

  • 45,568 Level I Inspections were conducted; 21.5% (9,817) of those inspected vehicles were placed out of service.
  • There were 60,058 Level I, II and III Inspections conducted in the U.S.
  • There were 7,014 Level I, II and III Inspections conducted in Canada.
  • The total vehicle out-of-service rate in the U.S. was 17.7%.
  • The total vehicle out-of-service rate in Canada was 19.9%.
  • 4.4% of drivers inspected in the U.S. were placed out of service.
  • 2% of drivers inspected in Canada were placed out of service.

Vehicle and driver out-of-service conditions were as follows:

Inspectors also discovered 748 seat belt violations. According to FMCSA’s latest Seat Belt Usage by Commercial Motor Vehicle Drivers Survey, the overall safety belt usage rate for drivers of medium- and heavy-duty trucks and motorcoaches was 86% in 2016. You can read the complete CVSA release, here.

Truck Driving Jobs: Are they Headed for Rapid Elimination? A recent study released by Maury Gittlemen and Kristen Monaco of the Bureau of Labor Statistics conclude media stories predicting the imminent loss of truck driving jobs is overstated. Main factors include:

  1. The number of truckers is “inflated due to a misunderstanding of the occupational classification system used in federal statistics.”
  2. Truckers’ skills other than driving will always be in demand.
  3. Some trucking segments will be more difficult to automate than others.

That’s the good news for truckers in general. However, there is some bad news for long-haul truckers. “Long-haul trucking (which constitutes a minority of jobs) will be much easier to automate than will short-haul trucking (or the last mile), in which the bulk of employment lies,” the reports states.

The study surmises that thousands, not millions, of trucking jobs may be at a limited risk as a result of automation. One of the key points raised is that there’s more to trucking than driving as the graph above shows. If you’d like more information on the study, click here.

FMCSA has extended Hours of Service Public Comment Period: Based on the requests of the American Trucking Associations, the Commercial Vehicle Safety Alliance, and the International Brotherhood of Teamsters, the commend period has been extended two additional weeks to October 21, 2019. Thousands of comments have already been submitted. The five proposed changes are:

  1. Changing the short-haul exception from certain commercial motor vehicle drivers from 12 to 14 hours and extending the distance limit from 100 air-miles to 150 air-miles.
  2. Extending the adverse driving conditions exception by two hours.
  3. Requiring a minimum 30-minute break before eight consecutive hours of driving time occurs. The break would be for at least 30 minutes and could be satisfied with on-duty, not driving time, or off-duty time, rather than just off-duty time.
  4. Modifying the sleeper-berth exception to allow drivers to split their required 10 hours off-duty time into two periods of at least seven consecutive hours in one period and not less than two consecutive hours either off-duty or in-the-sleeper berth.
  5. Allowing one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truck driver’s 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift.

If you’d like to comment or review the comments, click here.

In addition, the FMCSA has published its rulemaking removing the restrictions on the restart provisions. The restrictions limited its use to once every 168 hours and required that a restart include 2 periods between 1 a.m. and 5 a.m.

Trucking Organizations ask Congress to Defeat Four Bills: Groups argue bills would harm trucking and have no positive impact on safety. The Owner-Operators Independent Drivers Association (OOIDA) has taken the lead but has generated support from 31 other organizations. A letter has been sent to the leaders of the congressional committees overseeing the surface transportation reauthorization legislation. The four bills being opposed are:

H.R. 1511/S. 665, the Stop Underrides Act pertains to requiring the installation of front, side and rear underride guards on all trailers over 10,000 pounds.

S. 2033, the Cullum Owings Large Truck Safe Operating Speed Act of 2019 pertains to 65 m.p.h. speed limiters for all Commercial Motor Vehicles over 26,000 pounds.

H.R. 3773, the Safe Roads Act pertains to mandating that all new CMVs be equipped with and utilize an automatic emergency braking (AEB) system.

H.R. 3781, the INSURANCE Act pertains to raising the minimum liability coverage for motor carriers from $750,000 to over $4.9 million.

If you’d like the review organizations open letter, please click here.

Interesting Tidbits:

Former Cal DMV Worker Sentenced to Federal Prison: Aaron Gilliam pleaded guilty to conspiracy to commit bribery, identity fraud and unauthorized access of a computer in U.S. District Court for the Eastern District of California in Sacramento. He was sentenced to 22 months in federal prison for his part in a fraudulent commercial driver’s license scheme. Prosecutors alleged that Gilliam, who processed applications for CDLs, accessed the DMV’s database altered records to show that they had passed the written examination when, they had not passed. Some applicants had not even taken the test. At least 57 fraudulent CDLs and permits were issued by Gilliam in exchange for money between April 2016 and July 2017. Court documents said that Gilliam worked with two co-conspirators, who were owners of truck driving schools in Southern California. Truck driving students would pay money to the two co-conspirators, who, in turn, would pay Gilliam and other DMV employees, to receive their CDL licenses without “having to take or pass the written and behind-the-wheel driving examinations.” Gilliam has been ordered to report to prison on Oct. 25. He will also serve three years of supervised release and pay a $100 special assessment fee.

 

CASES

Auto

A motor carrier’s efforts to have a punitive damages claim dismissed early in the litigation failed in the Middle District in Pennsylvania. The court held that where the defendants are alleged to have violated Federal Motor Carrier Safety Regulation 395 “dealing with hours of service” and Regulation 383 “dealing with required knowledge and skill” without regard to the safety of other motorists the plaintiff sufficiently alleged facts to support a punitive damages claim. Shelton v. Gure, 2019 WL 4168868

The Supreme Court in Alabama refused to transfer a wrongful death case filed against a trucking company to a different Alabama county. The court held that both counties were proper. The court held that the defendants did not establish that their selected county was a significantly more convenient forum. Ex Parte KKE, LLC. 2019 WL 4385803

A driver and his trucking company employer were successful in having punitive damages claims dismissed in the Northern District of Mississippi. The court held that while there was an accident there were insufficient allegations which would support a punitive damages claim. The court also held that the employer could not be liable for punitive damages if the only claim against the employer was based upon vicarious liability. Rasdon v. E3 Trucking, 2019 WL 434657

Another jury verdict was upheld in a two truck accident in the Middle District in North Carolina. The court found that the Plaintiff was entitled to compensatory damages for future disability, medical expenses, and pain and suffering in the amount of $116,897.91 — $30,297.91 for past medical treatment, $16,000.00 for lost wages, $55,000.00 for past pain and suffering, and $15,600.00 for future medical expenses, disability, and pain and suffering. Graciano v. Blue Sky Logistics, LLC. 2019 WL 4393381

Plaintiff was permitted to pursue claims against anyone involved in a transportation accident which resulted in yet another multi-truck accident. When the court had already ruled that the defendants would stay in the case when deciding the initial motion to dismiss the court held that the supplemental complaint filed by an intervening insurance carrier would also stand as no new reasons for dismissal were proffered by the defendant. Burrell v. Duhon, 2019 WL 4316871

Plaintiff was stuck with a $10,000 settlement from a multi-truck accident (noticing a pattern this month?) which he claimed he had not agreed to. The Southern District in Ohio held that the plaintiff had agreed to the settlement in exchange for a general release. The defendant motor carrier was not, however, successful in recovering attorney’s fees for the motion. Qureshi v. Indian River Transport, 2019 WL 4345697

The Supreme Court in South Dakota upheld a jury verdict in favor of one trucker against another trucker in an action arising out of a multi-truck accident. The court held that the circuit court did not abuse its discretion when it allowed plaintiff’s treating providers to testify about the permanency of his injuries, and its decision to allow undisclosed opinions about the impact of the injuries did not create prejudice sufficient to warrant reversal. The verdict of almost one millions was held not to be the result of passion or prejudice. Weber v. Rains, 2019 WL 4197109

A shipper was unsuccessful in its efforts to be removed from a personal injury action on the basis that it had sold the business before the loss. The Eastern District in Tennessee held that questions of fact remained as to the assignment of the logistics agreement. Bass v. Kodirov, 2019 U.S. Dist. LEXIS 161599

And yet another multi-truck accident decision! The District Court in New Mexico held that while it might have been advisable for the plaintiff to maintain his vehicle in the damaged condition before filing suit, the facts did not warrant an outright dismissal of the complaint or an adverse instruction regarding the evidence. The court denied the motion to dismiss for spoliation of evidence. Hernandez Concrete Pumping, Inc. v. Duquette, 2019 WL 4303323

The verdict against a trucking company for property damage when the vehicle collided with the plaintiff’s property was upheld in the Court of Appeals in Tennessee. The court agreed that while there was a negligence claim there was no evidence to support the claim for trespass or gross negligence or punitive damages. The court did allow for prejudgment interest. Twenty Holdings, LLC v. Land South TN, LLC, 2019 WL 4200970

A truck driver was successful in getting summary judgment on a negligence claim filed by a plaintiff following a truck accident. The Appellate Division in New York concluded that there was no material question of fact and agreed that the accident was caused by the driver of the passenger vehicle and not the truck driver. Nunez v. Nunez, 2019 WL 4418882

Same result for another driver and his employer in the Court of Appeals in Indiana. The driver had a fatal heart attack while operating his vehicle causing it to leave the roadway and damage property of the plaintiff. Even if the driver was statistically at an elevated risk for sudden death due to cardiac disease, and had three out of thirteen medical conditions that put him at a statistically higher risk of a vehicle crash he had a medical examiner’s certificate, had never had a heart attack and there was no way for anyone to anticipate the heart attack. Alexander v. Djuric, 2019 WL 4562408

The Northern District in West Virginia dismissed a third party complaint filed by a trucking company against the truck rental company. Under West Virginia’s current statutory scheme the third party plaintiff needed to allege sufficient facts to implicate the exception to the “several liability” now in place. Clovis v. JB Hunt, 2019 U.S. Dist. LEXIS 160359

A claim of gross negligence was dismissed against a trucker who backed into a plaintiff’s vehicle. The Southern District in Texas held that there was no issue of material fact to be resolved and the actions of the driver did not create an extreme risk of serious injury that rose above mere carelessness. Rollins v. Calderon, 2019 U.S. Dist. LEXIS 160577

While defendants, the driver and motor carrier, were unsuccessful in obtaining dismissal of a wantonness claim they were able to have claims of negligent hiring, training, supervision and entrustment dismissed. The Northern District in Alabama held that the allegations that the driver was not maintaining a safe distance, was not looking ahead, was driving at a dangerous speed, was distracted by electronic devices, and was fatigued from working more hours than permitted by the Federal Motor Carrier Safety Regulations was enough to support the wantonness claim. Laney v. Malone 2019 WL 4538520

A truck broker was successful in getting a personal injury action dismissed, leaving the plaintiff to pursue only a claim against the motor carrier. The Western District in Oklahoma that reading the safety exception under FAAAA to include a negligence claim alleging that the broker overlooked a r’s “conditional” rating and selected an unsafe motor carrier that used incompetent or careless drivers and entrusted its vehicles to such drivers would be an unwarranted extension of the exception to encompass a safety regulation concerning motor carriers rather than one concerning motor vehicles. Loyd. v. Salazar, 2019 U.S. Dist. 160694

Removal under diversity is not automatic when the plaintiff fails to allege that the damages suffered are under the $75,000 minimum jurisdictional requirement. The Middle District of Louisiana concluded that the defendant needed to specifically introduce evidence that the damages were in excess of the minimum. Chestnut v. Hodges, 2019 U.S. Dist. LEXIS 160725

Cargo
A motor carrier’s request for dismissal of state law claims under the doctrine of Carmack Amendment preemption failed in the Southern District of New York The court held that a contract which provides“[t]his contract service is designed to meet the distinct needs of the customer and the parties expressly waive all rights and obligations allowed by 49 U.S.C. 14101 to the extent they conflict with the terms of this contract” is an express waiver of the Carmack Amendment as the exclusive remedy. The court held that there was no need to specifically reference a waiver of ICTA. Aviva Trucking Special Lines v. Ashe, 2019 WL 4387339

In another decision the same court held that a motor carrier was liable only under the Carmack Amendment for damage which occurred when goods were transported from the pier in New Jersey to Connecticut. The court further held that the plaintiff did not establish a basis for jurisdiction in New York and agreed that a BOC-3 filing will not confer jurisdiction alone. Hartford Fire Ins. Co. v. Maersk Lines, 2019 WL 4450639.

Is a motor carrier liable for damages when it fails to pick up a shipment which is then damaged because it sat around too long in warm temperatures? The Southern District of Florida held that the motor carrier could be liable for breach of contract, but not negligence. The court held that contractual liability could arise before physical acceptance of the load. Underwriters at Interest v. All Logistics Grp, 2019 U.S. Dist. LEXIS 160033

Worker’s Compensation
The Court of Appeals in Illinois confirmed that the Illinois Guaranty Fund was not responsible for worker’s compensation benefits for an insurer in liquidation. The court concluded that the driver was legally employed by a trucking company who was actually insured by a solvent carrier. Worker’s compensation benefits were due from that insurer and not the Fund. The confusion over mergers of trucking operations is detailed in this decision, showing once again how critical it is to Know Your Insured. Illinois Insurance Guaranty Fund v. Priority Transportation, Inc. 2019 Il App (1st) 181454

The Missouri Court of Appeals affirmed a decision of Labor and Industrial Relations Commission to award workers’ compensation benefits to the plaintiff, an over-the-road truck driver who was diagnosed with post-traumatic stress disorder (PTSD) after his truck overturned on the interstate, after finding claimant had suffered permanent and total disability, and to award compensation for claimant’s wife’s past nursing services. Reynolds v. Wilcox Truck Line, Inc. 2019 WL 4418285

Thanks for joining us,

Jean & Chad

© 2019 Central Analysis Bureau