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Bits & Pieces

August 2019

CAB Bits & Pieces August 2019

Good Day CAB Nation!

Summer is coming to an end and if you’re like many folks, final summer vacations are in the books, kids are heading back to school, and football season is on its way. We hope your month was fantastic and we look forward to what the remainder of the year has to bring.

In other CAB news: We are very excited to introduce you to our newest team member, Sean Gardner, who is joining us as our Senior Account Executive. Sean has been a frequent user of CAB over the past 12 years and brings a unique loss control perspective to our team due to his experience as an underwriter and a claims adjuster. His first job in the insurance industry was with CAB as an intern in 2005 and 2006 before branching out into other areas or the insurance business. Starting with his 10+ years as an Inland Marine Underwriter for some of the most recognizable insurance companies all the way through his time as claims adjuster, Sean knows what it takes to evaluate, correct, and monitor transportation risks to minimize loss and to truly understand the operations of a carrier. He will be reaching out to many of you in the coming months and is bringing many new ideas on the services provided to you by CAB. Sean will be attending the Motor Carrier Insurance Education Foundation (MCIEF) along with other CAB team members with me in early October. We look forward to introducing him (and in some cases re-introducing.)

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Have a great month!

CAB’s Tips & Tricks:

As we continue to add enhancements to the website, it’s important to remember that the majority of them are brought to us by you, the users. Please feel free to reach out to us and let us know if you have any fantastic ideas on how we can bring you data with more clarity.

This month’s enhancement is located on the Inspections/Accidents tab of the CAB Report®. Some of you may have already noticed that we’ve slightly changed the look of the Unit Summary section at the top of the page. We recently added the Time Spent Inspected area (yellow highlight). You’ll notice this example motor carrier shows 1 Day, 1 Hour & 37 minutes being inspected during the prior 12 months (green oval). Additionally, over the last 24 months (green oval) shows that the motor carrier was inspected 3 Days, 2 Hours and 34 Minutes.

Additionally, we’ve adjusted the arrangement of the data for the Units, License Numbers, Inspections by Vehicle Age and Unit Registration States. You can toggle between 12 Months, 24 Months or a Side By Side view (maroon arrow).

This data set has been provided to help users get an understanding of how much time a motor carrier is being inspected over 12 and 24 months periods. Depending on the number of units, CAB-BASIC Scores and ISS-CAB Values, radius and the like, this motor carrier could be spending an inordinate amount of time being inspected. It’s important to understand that the time listed only accounts for the time the Motor Carrier Enforcement Officer logs while doing an inspection. An inspection could last a few minutes to well over an hour. It does not account for the time waiting for a tire to be replaced, a driver to get the proper 10-hours of rest or any other Out of Service (OOS) violation.

Motor carriers with a relatively high number of inspected hours have could be at higher risk of driver injuries due to additional time spent entering and exiting the vehicle, cargo loss due to extended periods of non-movement and higher CAB-BASIC Scores & ISS-CAB Values that could result in additional enforcement including Compliance Reviews.

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:

FMCSA’s Crash Preventability Program Proposed to be Permanent-7 Additional Types of Crashes to be Included: Since August 2017, the FMCSA has reviewed 5600 Commercial Motor Vehicle (truck & bus) crashes and has found the 94% were determined to be not preventable by the motor carrier or commercial driver. In short, the agency stated that data drives their decisions and the demonstration program has resulted in the program becoming permanent. The agency’s plan includes improvement and expansion of the program. The program requires that a motor carrier submit compelling evidence that the crash was not preventable. Once a final determination is made, the agency would note the findings on the Safety Measurement System website. No crashes will be removed from the Crash Indicator BASIC. However, logged-in motor carriers viewing their own data will see an alternative percentile with the not preventable crashes removed. The 15 types of crashes that can be evaluated are as follows:

  • Struck in rear;
  • Legally stopped or parked;
  • Suicides or suicide attempts;
  • Wrong direction;
  • Animal strikes;
  • NEW: Driving under the influence;
  • Infrastructure failure or struck by cargo, equipment, or debris;
  • NEW: When the commercial motor vehicle (CMV) is struck on the side in the rear;
  • NEW: When the CMV is struck by a vehicle that did not stop or slow in traffic;
  • NEW: When the CMV is struck by a vehicle that failed to stop at a stop sign, red light, or a yield sign;
  • NEW: When the CMV is struck by a vehicle making a U-turn or an illegal turn;
  • NEW: When the CMV is struck by a driver who admits falling asleep or admits distracted driving;
  • NEW: When the CMV is struck by a driver who experiences a medical issue which causes the crash;
  • NEW: When the crash involved a driver under the influence, even if the CMV was struck by another vehicle involved in the crash and not by the individual under the influence;
  • NEW: When the crash involved a driver in the wrong direction, even if the CMV was struck by another vehicle involved in the crash and not by the driver operating in the wrong direction.

Additional information on the Crash Preventability Determination Program Proposal can be found here.

CAB Calculates Motor Carriers Over or Under CAB-BASICs Thresholds: The first table shows the number of carriers in each power unit range with a percentile under or over the alert threshold in each BASIC category. The second table shows the percentage of carriers in each power unit range with a percentile over the alert threshold 1) out of carriers with a percentile, and 2) out of carriers with a relevant inspection. For the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Note that different CAB-BASICs and different types of carriers (i.e. regular, hazmat, passenger) have different thresholds. Percentiles are as of the snapshot date of July 26, 2019. A carrier’s number of power units is from the most recent carrier registration data we have for that carrier. Carriers with no or unknown number of power units are not included.

FMCSA Publishes Long Awaited Proposed Hours of Service Rules: The Agency has published a notice of proposed rulemaking (NPRM) on updates to hours of service (HOS) rules to increase safety and provide additional flexibility for commercial drivers. This proposal has been widely anticipated. The proposed rule on hours of service rule offers five key modifications to the existing HOS rules:

  • Changing the short-haul exception available to certain commercial drivers by lengthening the drivers’ maximum on‑duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air miles to 150 air miles.
  • Modifying the adverse driving conditions exception by extending by 2 hours the maximum window during which driving is permitted.
  • Increasing flexibility for the 30-minute break rule by tying the break requirement to 8 hours of driving time without interruption for at least 30 minutes, and allowing the break to be satisfied by a driver using on duty, not driving status, rather than off duty.
  • Modifying the sleeper-berth exception to allow drivers to split their required 10-hours off duty into two periods: one period of at least 7 consecutive hours in the sleeper berth and the other period of not less than 2 consecutive hours, either off duty or in the sleeper berth. Neither period would count against the driver’s 14‑hour driving window.
  • Allowing one off-duty break of at least 30 minutes, but not more than 3 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.

Additional information and comments from U.S. Transportation Secretary Elaine L. Chao and FMCSA Administrator Raymond P. Martinez can be found here.

Cargo Thefts Drop 14% in 2nd Quarter: There were 150 incidents with the average theft being roughly $153,000 for an estimated loss of $23 Million stolen in the U. S. & Canada. Over the first two quarters of 2019, trailer burglaries were the preferred method of theft, although fictitious pickups are on the rise as well. Food and beverages are the most common stolen items, followed by household items. The top three states for thefts were California, Florida and Texas.

FMCSA releases Drug & Alcohol Clearinghouse Query Plan: The agency announced the fee structure for motor carriers to purchase queries when the Drug & Alcohol Clearinghouse becomes accessible on January 6, 2020. A query, will be required by carriers to determine if current or prospective employees are prohibited from performing safety-sensitive functions, such as operating a commercial motor vehicle (CMV), due to unresolved DOT drug and alcohol violations. The query must be conducted by an employer or its designated consortia or third-party administrator.

There are two types of queries: 1.) Limited, which checks for the presence of information in the queried driver’s clearinghouse record and requires driver consent outside of the database; and 2.) Full, which discloses to employers and designated C/TPAs detailed information about any resolved or unresolved violations in a driver’s record and requires a driver clearinghouse account to provide the driver’s consent via the portal.

The agency charge will be a flat fee of $1.25 for every limited or full query and offer bundles depending on usage. However, bundles do not provide a discount unless an unlimited bundle plan for $24,500 is purchased. Queries are a required part of any pre-employment driver investigation for drivers and must be conducted at least annually for every driver. For additional information on the Query Plans, click here.

Commercial Auto Rates Expected to Continue to Rise: It was reported this month that commercial auto policy holders can expect ongoing price increases. This is due to U. S. Property & Casualty insurers continuing to reduce capacity due to heavy underwriting losses in the category. The segments combined ratio for 2018 was 108%, down from 111% in 2017. This results in commercial auto insurers expecting a ninth consecutive year of underwriting losses in 2019. This has resulted in 31 straight quarters of price increases, culminating in a nearly 9% increase in the first quarter of 2019.

FMCSA Proposes Unified Carrier Registration Fees for 2020 & 2021: The agency has proposed to reduce UCR fees for 2020 and then increase in 2021. The proposed fees for the 2020 registration year would be reduced below the 2018 registration fee level by roughly 13%. The proposed fees for the 2021 registration year would be reduced below the 2018 registration fee level by about 4%. The overall cost of UCR depends on the number of Commercial Motor Vehicles operated and would range from about $2 to $1,629 per company in 2019. A notice of proposed rulemaking can be viewed here.

CVSA Removes 1600+ Commercial Motor Vehicles from Roadways for Critical Brake Violations: On May 15, 2019, the Commercial Vehicle Safety Alliance’s (CVSA) law enforcement members conducted 10,358 commercial motor vehicle inspections focused on identifying brake system violations. This program was part of the CVSA’s unannounced Brake Safety Inspection Initiative. Of those inspections, 16.1% of vehicles had brake-related critical vehicle inspection items. Those 1,667 vehicles were placed out of service until the violations could be corrected.

  • 55 jurisdictions participated – 45 U.S. states and territories and 10 Canadian provinces and territories.
  • A total of 10,358 inspections were conducted.
  • The U.S. conducted 8,738 commercial motor vehicle inspections; Canada conducted 1,620.
  • 16.1% or 1,667 of commercial motor vehicles inspected were placed out of service for brake violations.
  • In the U.S., 16.6% of commercial motor vehicles were placed out of service for brake violations.
  • In Canada, 13.5% of commercial motor vehicles were placed out of service for brake violations.
  • Nearly 84% of commercial motor vehicles inspected did not have any critical brake-related inspection item violations.

CVSA is holding another brake safety enforcement event this year, Brake Safety Week, which is scheduled for Sept. 15-21, at participating jurisdictions throughout North America. The week is an annual outreach and enforcement campaign designed to improve commercial motor vehicle brake safety.

FMCSA Revises Bus Lease, Interchange Regulations: The final rule has the following provisions: Revises the definition of lease to exclude carriers with FMCSA-issued operating authority that grant the use of their vehicles to each other; Removes the May 27, 2015, final rule’s marking requirements and reinstates the previous vehicle marking requirements with slight modifications; Revises the provision allowing a delay in the completion of a lease during certain emergencies; and Removes the requirement that motor carriers chartered for a trip who lease a commercial motor vehicle from another carrier to provide the transportation must notify the tour operator or group of passengers about the lease and the lessor. The compliance date to meet requirements for motor carriers is January 1, 2021. FMCSA said the ruling will ease regulatory concerns for about 8,400 bus companies comprising 547,000 trips per year. According to the FMCSA, about 75 percent of the carriers will experience regulatory relief and will no longer be subject to lease and interchange requirements of the 2015 final ruling. FMCSA estimates the ruling will create $8.3 million in regulatory cost savings. The rule can be reviewed and commented on here.

Interesting Tidbits:

$280 Million Jury Award for Semi, SUV Crash that Killed 5: On August 23rd, a Muscogee Co., Georgia Jury awarded plaintiff Larry Madere over $280,000,000 in his wrongful death suit against Schnitzer Steel. The suit was filed after the fatal crash that occurred on Highway 80 in Alabama. The Schnitzer vehicle crossed the centerline and struck the vehicle Madere, his family & friends were riding in. The Prosecutor questioned if the driver fell asleep. The company had another serious crash in 2016 as well.

 

CASES

AUTO
A reminder to all claims folks that payments made by an insurer under a MCS-90 filing can be recovered from the motor carrier. The Middle District in Alabama granted a default judgment to an insurer for a payment made under the filing. The judgment was granted without even the necessity of a hearing on damages. Berkshire Hathaway Homestate v. Adams, 2019 WL 3418594


What can an Accident Reconstructionist testify too? The issues are often complex and so tied to the specific events of a loss. Interesting decision in the District Court in Arizona win which the court considered issues with respect to lighting, reaction time and whether the accident was avoidable. Manion v. Ameri-Can Freight Systems, Inc. 2019 WL 3858415


A motor carrier was successful in getting a claim for negligent infliction of emotional distress dismissed. The court dismissed that claim but all other claims, including a punitive damage claim, were permitted to continue. The Middle District in Pennsylvania held that the decedent’s fiancé could not assert the claim as she was not present at the time of the unfortunate accident. Jenson v. St. Louis, 2019 WL 3765426


A truck driver’s argument that since he was paid worker’s compensation benefits the truck driver who hit him could not assert an affirmative defense of comparative fault failed in the District Court in Oregon in his action for damages. The court also held that the defendant could assert the negligence of the co-employee driver who was operating the truck the plaintiff was riding in. Poe v. Cook, 2019 WL 3842376


Rejecting a settlement offer runs its own risks. The District Court in Florida helped a trucker, at least a bit, after the trucker failed to accept a settlement offer. The court held that the punitive damages portion of the final award could not be included in the trial court’s calculation of “judgment obtained,” for purposes of statute governing award of costs of investigation and attorney’s fees based upon rejected settlement proposal. The demand for settlement was made before any claim for punitive damages was asserted. Palmentere v. Copeland, 2019 WIL 3402802


Try as the defendants might the court in the Northern District of Oklahoma was unwilling to grant summary judgment to a trucker on claims of punitive damages and negligent entrustment. The court held that there were too many questions of fact to permit that to happen. Of note is the fact that the court agreed that Oklahoma law will permit direct claims of negligence even the motor carrier concedes vicarious liability. Cox v. Swift Transportation, 2019 WL 3719887.


In a related decision both parties were also denied sanctions against the other for alleged spoliation of evidence. The court held that neither plaintiff nor defendant intentionally failed to retain ECM and Qualcomm data or electronic driver logs. Cox v. Swift Transportation, 2049 WL 3573668


The same was not true in the Southern District of Mississippi where the court held that when an employer admits vicarious liability, direct negligence claims for negligent hiring, training, supervision, retention, and entrustment asserted against the employer merge with the plaintiff’s claims against the employee. The court dismissed all direct liability claims asserted against a motor carrier that conceded vicarious liability. Brown v. Morrison, 2019 WL 3720053


A motor carrier sought leave to amend its answer to a complaint seeking damages based upon a theory that the accident was a set up by the plaintiff and others. The Eastern District in Louisiana concluded that the motor carrier could amend to add a defense that the negligence of plaintiff or others was the sole and proximate cause of the accident by intentionally causing the collision, purposefully sideswiping the defendant with an improper lane change. The motor carrier could not, however amend to allege a claim for fraud. Williams v. United States Fire Insurance Co., 2019 WL 3842003


A win for the trucker! The Northern District in Illinois granted summary judgment to a motor carrier. The court held that the plaintiff failed to establish that he actually suffered damages following a small fender bender with the defendant’s truck. LeBlanc v. Mr. Bult’s, Inc., 2019 WL 3776957


One company’s effort to assert FAAA preemption for a truck accident failed in the Southern District of Ohio. The court held that the defendant motor carrier failed to act diligently to assert an affirmative defense of preemption in light of the fact that an earlier court decision made it a viable defense. Mosley v. Spartan Freight Systems, 2019 WL 3818760


Who covers the accident? Non-trucking and trucking insurers fought it out in the Western District in Kentucky. The court denied the summary judgement requests of both insurers concluding that it was unclear whether the truck driver was furthering the business of the motor carrier at the time of the accident in a truck stop. The court also refused to conclude that the driver was a statutory employee of the trucker at the time of the accident. Certain Underwriters at Lloyd’s v. Morrow, 2019 WIL 3558177


Whether defendant violated the clear distance rule or there was a sudden emergency was still a question of fact in a suit arising from two truck accident. The Western District of Pennsylvania concluded that these issues were subject to further litigation. The court also dismissed the direct negligence claims against the motor carrier who conceded vicarious liability, stating that a plaintiff may not bring a direct negligence claim against an employer, when plaintiff does not have a viable claim for punitive damages against the supervisor/employer defendant. Collins v. Tate, 2019 WL 3817570


Another decision arising from a lawsuit around a multi-vehicle truck accident in the Middle District of Pennsylvania. Did you know that the CAB inspection data will highlight when there are more than one commercial vehicles involved in an accident. The court held that one defendant was not entitled to dismissal of the complaint because his vehicle did not hit the plaintiff. The court held that the plaintiff asserted sufficient facts to allow for the possibility that the defendant’s actions were a contributing cause. Sutcliffe v. Bernese, 2019 WL3776560.


An employer was unable to convince the court in West Virginia that the truck driver employee was only a nominal defendant in a suit for personal injury damages. The fact that the employer admitted vicarious liability and was fully defending the driver did not remove his relevance from the suit. Back to state court it went. Justice v. Halliburton Energy Services, Inc., 2019 WL 3991067


When the insurer goes into receivership the insured can find it exposed to additional expenses. The Northern District of West Virginia held that the motor carrier was responsible for special masters fees which were incurred in resolving a multi-vehicle accident. While engaging the special master was agreed to by the insurer, it was in receivership and unable to pay the fee. It fell to the carrier. Spirit Commercial Auto RRG v. Shreve, 2019 WL 3947916


The fight over what defenses could be raised by the motor carrier in a suit seeking damages for personal injuries was decided in the Western District of Washington. The court held that ‘that all rights of way are relative and the duty to avoid accidents or collisions at street intersections rest upon both drivers” The motor carrier was entitled to assert the affirmative defense of contributory negligence of the plaintiff, but not anyone else. Waller v. Mann, 2019 WL 3996866.


And yet another suit involving a multi vehicle truck accident, this time in the Northern District in Illinois. This time the court denied a motion to dismiss filed against a rental company for negligent entrustment of the vehicle to a motor carrier with a poor safety record. The court held that there was enough evidence to potentially allow that claim to continue. Favorite v. Sakovski, 2019 WL 3857877


CARGO

Plaintiff’s claims for various state law damages arising from the loss of all of her household goods during a transit fire failed in the Southern District in Florida. The court held that all of plaintiff’s claims were preempted by Carmack. The plaintiff was given short leave to amend a complaint to assert a claim for loss arising out of the potential improper salvage goods Meyer v. Suitable Movers, 2019 WL 3457614

The carrier who subcontracted a load to another carrier was entitled to recover the invoice value of a shipment of beef which was not timely delivered. The Western District in Tennessee held that the plaintiff had shown that a delayed shipment of fresh beef would render the shipment valueless and subject the defendant to Carmack liability for the loss. Logistics Buddy Transportation v. VS Carriers, Inc., 2019 WL 3938485


Even in Carmack cases the defendant must obtain the consent of all defendants to remove the case to federal court. The Northern District in Texas remanded a case back to state court when one defendant failed to obtain consent from a second served defendant. Skyglass v. Partnership, LLC, 2019 WL 3819282


A default judgment was entered against a motor carrier in the District Court in New Jersey. While the court did give the plaintiff the value of the goods and prejudgment interest an unsupported claim for incidental damages was denied. Hanesbrans v. SCS Express, LLC 2019 U.S. Dist. LEXIS 133122


A consignee’s efforts to argue that a shipment was only intra-state and not subject to Carmack failed in the Eastern District of North Carolina. The court held that the fact that the goods might stop in a temporary warehouse or other staging facility does not transform the nature of the shipment from interstate to intrastate when the goods are destined for interstate transport. Moreover the consignee was bound by the arbitration clause in the shipper motor carrier contract. Mount Olive Pickle Co. v. Tidewater Transit Co., 2019 WL 3764608


When the state of Utah had nothing to do with transportation of goods from New York to Nevada, the plaintiff could not establish personal jurisdiction over one of the defendants who packed the cargo in New York and then transported it to Nevada. The District Court in Utah agreed that the plaintiff had to meet Carmack venue provisions, as well as establish the requisite personal jurisdiction. Calder v. Bay Shore Moving & Storage, 2019 WL 2430117


A truck broker was found liable as a motor carrier for the theft of a shipment of lobsters. The District Court in Massachusetts held that the broker acted as a carrier and therefore bore liability under the Carmack Amendment. The shipper did have to pay for other loads where payments had been withheld. Richwell Group v. Seneca Logistics Group. 2019 WL 3816890

WORKER’S COMPENSATION
An employer who does not subscribe to worker’s compensation is subject to a direct suit by an employee. While that is true, the court did conclude that the trucking company owed no duty to train or supervise a driver on the specific hazards associated with operating an end-dump truck in the vicinity of overheard electrical wires. Summary judgment went in favor of the motor carrier. Garcia v. MTZ Trucking, 2019 WL 3720620

Thanks for joining us,

Jean & Chad

July 2019

CAB Bits & Pieces July 2019

Good Day CAB Nation!

How can we already be half way through 2019? Seems like time really does fly when you’re having fun! The quick pace of the year lends credence to that old saying, doesn’t it?

Recognizing how quickly time flies, it’s important for organizations to realize major anniversaries. It may surprise you, but this year is the 80th anniversary for Central Analysis Bureau. That’s right, CAB started operations all the way back in 1939. Back in those days, and for a large part of our existence, we focused on Financial Analysis of Motor Carriers. Over the last couple decades we’ve focused on the data side; Business Intelligence Solutions including Motor Carrier Reports, Monitoring Services, Vehicle Tracker, SALEs Leads and our ever popular Chameleon Detector.

Occasionally we’re asked what separates us from other companies. Clearly we have tremendous tools, resources, solutions and knowledge. Beyond that, we’re constantly working on enhancements to help our customers Make Better Decisions, but I’ve come to appreciate our history as well. Our competitors may come and go, but none of them have our history. We’ve been around 80 years and we plan to be a vital part of your business for another 80 years and beyond.

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Have a great month!

CAB’s Tips & Tricks:

As we continue to add enhancements to the website, its important to remember the majority of them are brought to us by you, the users. Please feel free to reach out to us and let us know if you have any fantastic ideas on how we can bring you the data with more clarity.

This Months enhancement is located in the CAB Alerts section on the General Tab of the Motor Carrier report and is identified as Custom Violation Alert Settings. As the gold arrow below indicates, there is now a new settings option (gear icon) available.

By clicking on the settings gear (gold arrow), you will open an additional window (screen shot below), Custom Violation Alert Settings. In that window there are six main groupings that correspond with the BASICs Categories (not including the Crash BASIC). From there, you can click on the > and it will open additional sub categories of violations. You can then click in the boxes to select the groups as a whole or individual violations. Once selected, those violation notifications will appear at the top of your “CAB Alerts” section (green arrow above) in your Motor Carrier report. If they don’t update automatically, click on the browsers refresh button and they will appear.

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:

Federal Motor Carrier Safety Administration (FMCSA) proposal to make it easier for Applicants to get Commercial Drivers Licenses (CDL): In order to provide flexibility for CDL applicants, FMCSA is proposing to allow driver applicants to take the CDL knowledge tests in states other than applicant’s state of domicile. “Reducing burdens and expenses on CDL applicants has the potential to increase the number of available drivers. With the American economy continuing to grow at record pace, the need for more commercial drivers is critical. This proposal offers commonsense regulatory changes that will help CDL applicants, without compromising safety,” stated FMCSA Administrator Raymond P. Martinez.  This proposal will increase flexibility for driver applicants by reducing time and travel expenditures, while having no detrimental impact on safety. For additional information on the proposal, click here.

INSURANCE Act Would set Motor Carrier Liability Insurance Minimum at $4.9 million per Accident: New legislation submitted by U.S. House Reps. Jesus Garcia of Illinois and Matt Cartwright of Pennsylvania (H.R. 3781 116th Congress) would increase the limit from the current $750,000. The Motor Carrier Act of 1980 was to have increased the minimums based on inflation, but that never happened. Back in 2014, the FMCSA proposed raising the limit to $10,000,000, but pulled that back on June 5, 2017. At the time, the agency wrote, “FMCSA is not able to calculate economic benefits from having more financial resources available to assist crash victims associated with increased minimum financial responsibility limits.” This is certainly an interesting development that the industry will want to pay attention to. You can view a copy of the bill here.

CAB Calculates Updated Crashes Per Million Miles Traveled Data: The information below includes 12 months of crash data compared to the mileage provided. Specifically, data includes all carriers with at least one power unit that were active during the last 12 months. Mileage comes from the most up-to-date source we have available, including MCS-150 and MCS-151 from our census data, and sometimes the SMS website. Crashes are federally reportable crashes that involved these Motor Carriers that occurred in the twelve month period ending on the date of the most recent crash in the CAB system (7/7/19). *Note that if a crash included multiple CMVs it will be counted multiple times.

Volvo Issues Recall for 25,000 Trucks: The recall includes trucks with model numbers 2019-2020 Volvo VAH, VHD, VNL, and VNR. According to the Safety Recall Report, the t-bolt clasps on the transmission auxiliary air tank straps may have been over-torqued during manufacture, causing a deformation that could allow the t-bolt to disconnect from the strap, which could in turn allow the tank to drop into the roadway as debris, increasing the risk of a crash. Truck owners will be notified of the recall August 12. Inspections and repairs will be conducted for free. The recall document can be viewed here.

Safe Roads Act of 2019 would require Automatic Emergency Braking: Under House Bill 3773 proposed by Rep. Hank Johnson, Automatic Emergency Braking Systems would be required on all trucks manufactured. If passed, the rule would take effect 1 year after the bill was enacted. It should be noted that this is the 3rd time Johnson has introduced this type of bill. Previous bills were introduced in 2011 & 2015.

What is the FMCSA’s Drug and Alcohol Clearinghouse (Clearinghouse) and what information will it contain?: The Clearinghouse is a secure online database that will give employers, the Federal Motor Carrier Safety Administration (FMCSA), State Driver Licensing Agencies (SDLAs), and State law enforcement personnel real-time information about commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders’ drug and alcohol program violations. Additionally, the Clearinghouse will contain records of violations of drug and alcohol prohibitions in 49 CFR Part 382, Subpart B, including positive drug or alcohol test results and test refusals. When a driver completes the return-to-duty (RTD) process and follow-up testing plan, this information will also be recorded in the Clearinghouse. The FMCSA’s CDL Drug & Alcohol Clearinghouse Registration begins this fall. The Clearinghouse is slated to become operational January 6, 2020. Additional information on the Clearinghouse can be found here.

Entry Level Driver Training could be Granted Compliance Extension by Regulators: The Federal Motor Carrier Safety Administration (FMCSA) issued a proposal to extend by two years the compliance date for two provisions of the entry-level driver training (ELDT) rule set to take effect February 7, 2020. The proposed two-year extension would delay the date by which trainers would need to begin uploading driver-specific training certification information into the Training Provider Registry (TPR), an electronic database that will contain entry-level driver training (ELDT) information. The public can offer comments on the proposal for up to 30 days after publication in the Federal Register. Comments can be submitted here.

Fifth Significant Motor Carrier Shuts Down This Year: LME Inc., a large motor carrier based in Minnesota shut down with no warning this month. There was little or no reasons provided by management although other companies that shut down this year cited falling freight rates, and increased insurance costs among other reasons. According to registration information, LME operated 382 Power Units, 1,228 Trailers and had 424 CDL drivers. The company had grown 22 units since early 2018 and increased miles by almost six million in the same timeframe. The company also abruptly shut down Lakeville Motor Express Inc. back in 2016, although their authority remained active until June 5th, 2019. Other large motor carriers to cease operations in 2019 were: NEMF; Falcon; Williams Trucking of Dothan, Alabama; and ALA Trucking Inc.

Interesting Tidbits:

National Transportation Safety Board Releases Preliminary Report on June 21st Crash the Resulted in 7 Fatalities: The preliminary report can be accessed here and serves to detail the facts of the crash. According to various other reports, the driver’s CDL should have been revoked in May due to a drunken driving arrest. In addition, the Governor of Massachusetts has sent a bill to the state legislature to tighten CDL standards in the state. In addition, the company for which the driver was operating, Westfield Transport Inc. has ceased operations, although their DOT Authority remains active. CAB Report information related to this company can be viewed below.

CASES

Auto

The Middle District in Georgia held that a trucker spoilated evidence when it failed to maintain pre and post trip inspection reports. The court remanded the case to determine if the spoliation was in bad faith before deciding on the sanctions to be dispensed. The court also refused to dismiss the claim for punitive damages. James Allen v. Sanchez, 2019 WL 3035275

A 17 page 48 paragraph complaint alleging negligence, negligent entrustment and punitive damages was not subject to the need for a more definite statement in the Middle District of Pennsylvania. The court held that an ambulance driver, whose vehicle was struck by the tractor trailer driven by the defendant, was entitled to pursue a claim for damages, and possibly for punitive damages. Youells v. Dzakpasu, 2019 WL 3046300

The Appellate Division in New Jersey upheld the grant of summary judgement to a trucking company. The court concluded that there was no rational basis to conclude that the accident was caused by the defendant truck driver. The uncontested evidence established that the plaintiff blew a tire, lost control of the vehicle and hit the truck. Winnix v. Winnix, 2019 WL 2635604

Simply being the shipper was not enough to hold Amazon responsible for a truck accident. The Middle District of Pennsylvania rejected the plaintiff’s argument that Amazon owed the public at large a duty of care to periodically review delivery companies that carry Amazon packages to ensure that they are compliant with various state and federal regulations and best practices It should be noted that the court reached this conclusion in part because Amazon insulated itself by using a truck broker Hoffee v. AAC Transportation LLC, 2019 WL 2642840

The Eastern District in Arkansas said no chance to a motor carrier operator’s request to dismiss a complaint when he claimed he was not served within 90 days. The Court found that service was timely because the defendant was served within 90 days of removal Howanietz v. Watson, 2019 WL 2710805

Who defends? Trucking policy or non-trucking use policy? Interesting issue was addressed in the 2d Circuit where there was a question as to whether the non-trucking policy had timely declined coverage The court concluded that under New York law, “the commencement of [a] declaratory judgment action” by an insurer is “sufficient written notice of disclaimer” because the action “constitutes unequivocal, unambiguous written notice.” The disclaimer by the non-trucking insurer was held timely and the matter was remanded to determine, once and for all, which policy covered the loss. United Fin. Cas. Co. v. Country-Wide Ins. Co., 2019 WL 272426

No – asserting that an action must be caused by negligence was not enough in the District Court in New Mexico. The court held that plaintiffs’ res ipsa loquitur cause of action failed to state a claim upon which relief may be granted. Res ipsa loquitur is an evidentiary rule, not a cause of action. Certain Underwriters at Lloyd’s v. Trimac Transportation Group, 2019 WL 33225588

A motor carrier was permitted to intervene in a suit brought by its driver against another trucker for personal injuries incurred in an accident. The motor carrier was held to have established a right to intervene since it had paid worker’s compensation benefits and suffered its own damages when the tractor trailer was damaged. The Western District of Tennessee concluded that deciding this all it one case would justify the intervention. Edmonds v. Berhe, 2019 WL 3021220

It is not always easy to get a court to allow for a claim for punitive damages to proceed. The Southern District in Ohio denied plaintiffs’ request to amend a complaint to assert a claim for punitive damages against a truck driver and its employer, finding both efforts to be futile. The court held that the fact that the motor carrier exceeded the national average for out of service violations might be evidence of negligence; but it would not give rise to a claim for punitive damages. Bearhs v. Steven K. Bierly Trucking Operating Company, Inc. 2019 WL 3244023

When the motor carrier admits liability for the actions of a driver in causing a personal injury action there is no need to litigate alternative theories of negligent. The Northern District of Indiana granted the defendant’s motion for judgment on the pleadings on the other theories, leaving open only the issue of the extent of damages. Ramos v. CMI Transportation, LLC, 2019 WL 3244612

It always pays to check the details. One plaintiff found that out in the Western District of Arkansas. When the defendant motor carrier ascertained that the plaintiff had allowed its business license to lapse more than 20 years earlier it moved to dismiss the suit for property damage on the grounds that the plaintiff lacked standing. The court concluded that the plaintiff was barred from bringing its state-law claims in any Arkansas court. Camp’s Plant, Inc. v. SMG Trucking, LLC. 2019 WL 3082465

When there were serious questions concerning the events of a dual truck accident the investigating police officer was not permitted to testify about his opinion on credibility – the facts and just the facts were his sole topic of testimony. The District Court in Colorado held that the officer could not vouch for either party. The decision also addresses the introduction of medical testimony and denied a request to disqualify plaintiff’s counsel, who also represented plaintiff’s doctors in other matters. Anzora v. Lezama, 2019 WL 3334685

Plaintiff, a trucking company, is going to be able to continue a claim for gross negligence against another truck for a rear end accident which it tried to avoid, The Middle District of Pennsylvania held that plaintiffs asserted that the defendant operated an unilluminated tractor and attached trailer without safety features, including reflective tape, at night on an interstate in an unreasonably slow manner in violation of state and federal law. That was enough to allow the matter to proceed as alleged. R&L Transfer v. Yaya Transport, LLC., 2019 WL 3216660

Often it is difficult to know when a case should be removed. As the Middle District in Georgia noted, some plaintiffs are cagy about that issue. The court held that the defendants met their burden to show, by a preponderance of the evidence, that the amount in controversy exceeded $75,000 when they actively pursued the amount of damages and moved timely as soon as they knew. Minix v. American Interfidelity Exchange, 2019 WL 3318177

A trucking company was unsuccessful in asserting a contribution claim against a governmental agency for an accident which involved an off duty police officer who was attempting to respond to a possible criminal action. The Court of Appeals in Texas held that the police officer was acting reasonably on a suspicion that a crime might be occurring and therefore was entitled to immunity from suit. CKJ Trucking v. City of Honey Grove, 2019 WL 3296978

Under South Carolina law the loader of a vehicle owes no statutory or common law duty to the injured public if the cargo falls off the vehicle in transit when it was placed at the direction of the trailer owner. The court concluded that it was an unreasonable request to hold that the loader had a duty of ensuring the pallets were properly secured to the trailer by merely placing the pallets on the trailer as its customer directed. Oulla v. Velazques, 2019 WL 3309167

A trucking company’s efforts to bring in the plaintiff’s employer as a third party defendant failed in the Southern District of Ohio. The court held that Ohio law prohibited a contribution claim against an employer who was fully compliant with worker’s compensation requirements. AS long as the employer was compliant and the accident arose out of or was in the course of the plaintiff’s employment immunity was available to the employer. Binger v. Alpont Transportation, 2019 WL 3349775

Cargo

A motion to change venue failed in the Northern District of California. The motor carrier, defending a Carmack claim, sought to move the case to Maryland. The transport was interstate. The court denied the motion, concluding that the case was not complicated, and the defendant had not established that any important witnesses reside in the requested transferee district. G.A. Braun v. Landstar Ranger, Inc., 2019 WL 3068341

Preemption continues to rule the cargo cases. The Middle District of Alabama denied plaintiffs’ motion to remand on the basis that a cargo claim for damage to goods in interstate commerce was not subject to the provisions of the Carmack Amendment. No such luck for the plaintiff. The case stays where it is. Peters v. Liberty Bell Moving Group, 2019 WL 3310084

A direct action against an insurer for a cargo loss was dismissed in the Western District of Pennsylvania. While plaintiff sought the argue that the failure to cancel the MCS-90 somehow gave it a claim for recovery for a cargo loss the court held otherwise, concluding that the plaintiff could not establish a plausible cause of action against the trucker’s insurer who had cancelled the policy for non-payment. Pittsburgh Logistics Systems, Inc. v, MRE, 2019 WL 3368804

The issue of when the time to file a claim runs was considered in a household goods case in the Northern District of Texas. The motor carrier claimed the time commenced when the goods were placed in permanent storage, not when they were later delivered out. The court denied the motion to dismiss concluding that there were issues on whether the goods were still in SIT or had moved to permanent storage. Barton v. N. Am. Van Lines, Inc. 2019 WL 3206916

Tow
It is not often that we see tow cases so we try to report on them for your interest. The Western District of Tennessee dismissed the action filed by a tow company seeking to be reinstated into the tow rotation. The tow company was removed because of overcharge to a motor carrier following a truck accident. The court held that due process rights were afforded and the removal was upheld. Koenigs, L.L.C. v. City of Savannah, 2019 WL 3254799

Thanks for joining us,

Jean & Chad

© 2019 Central Analysis Bureau