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Bits & Pieces

March 2020

CAB Bits & Pieces March 2020

Carrying on during these unprecedented times.

We are all experiencing something unprecedented in most of our lifetimes with the current COVID-19 response. I imagine this is a small sample of what it was like during the early part of the 20th century when the world was grappling with The Great War, the Spanish Flu, The Great Depression and World War II. As I type this, my whole family is home either working, or going to grade school, high school or college online as we shelter in place. We are certainly some of the fortunate ones. During this time we at Central Analysis Bureau want you to know that we are working to ensure our systems are operating at peak performance for you, our valued customers. We continue with our innovation and enhancements to create additional value as well. If you have questions about our tools and resources, please do not hesitate to contact us.

Please do all you can to look out for your family and fellow employees. Additionally, if you see a trucker, thank a trucker. Our industry is certainly intertwined with the trucking companies and drivers that are coming through with flying colors in our national time of need. We pray for a quick end to this epidemic and a return to normalcy for everyone.

Thank you to America’s Truck Drivers!

Live Training Sessions

Our live training sessions continue to have a great response from those that register and attend. This has encouraged us to do all we can to provide a good cross section of topics and tools. On Tuesday, April 14th, Mike Sevret will again be providing our initial training Intro to CAB: Flow & Navigation and on Tuesday, April 21st, Sean Gardner will be providing our CAB Focused Training: CAB List & Alerts. Our focused training will be shorter and last 30 minutes, as we know your time is important. Hopefully the country and industry will be getting back to normal by this time. You can register for either session from our Webinars page or by logging in and clicking this link https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest some focused training that you might want to see. We are looking forward to connecting with you during these sessions. Do not hesitate to ask questions!

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CAB’s Tips & Tricks: BASICs Calculator: Equipment Tab

Our developers have been working on a number of enhancements that will allow you to better understand the equipment being operated and how those types of equipment are affecting the BASICs Scores. A new tab has been added to the BASICs Calculator named Equipment. This tab has numerous headings each of which can be used to sort the data. The headings include GVWR (or Class), Make, Model, Type, Units (#), Inspections (#), Crashes(#), Vehicle Maintenance (Total BASICs Point Weighting) and Points per Inspection (Pt/Insp). The color of the bar graph allows you to understand if the violations occurred in the last 6 months (red, BASICs multiplied by 3), 7-12 months (yellow, BASICs multiplied by 2) or 13-24 months (green, BASICs multiplied by 1).

As noted with the example above, the most BASICs points are assigned to the top line Volvo Truck, Model VNL, which averages 5.4 BASICs points per inspection, however the second line, Freightliner, Model M2 has over twice as many BASICs points assigned at 12.5 per inspection. Information is also available for all non-Pull Units (trailers) associated with the motor carrier, by toggling the Green PU (Pull Unit) switch. This is a great tool to identify if a model or vehicle type might be skewing the BASICs scores. This could identify potential issues related to the pre & post trip inspections, the preventative maintenance program or the specific model in general.

As with all of our enhancements, we strive to present the data in a manner that will help provide additional clarity. We at CAB are constantly striving to improve our tools and resources to create value for our users. 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:

US Department of Transportation Expands National Emergency Declaration for Commercial Vehicles Delivering Relief in Response to the Coronavirus Outbreak: On Wednesday, March 18, 2020 he U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today issued an expanded national emergency declaration to provide hours-of-service regulatory relief to commercial vehicle drivers transporting emergency relief in response to the nationwide coronavirus (COVID-19) outbreak.FMCSA’s expanded declaration provides for regulatory relief for commercial motor vehicle operations providing direct assistance supporting emergency relief efforts intended to meet immediate needs for products, equipment, material and personnel to combat the virus and its spread. To ensure continued safety on the nation’s roadways, the emergency declaration stipulates that once a driver has completed his or her delivery, the driver must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers. FMCSA’s emergency declaration is the first time the Agency has issued nation-wide relief and follows President Trump issuance of a national emergency declaration in response to the virus. For more information and to review the expanded emergency declaration, click here. All current Emergency Declarations, including a map, can be viewed here.

Below are the latest FAQs that relate to the FMCSA’s Emergency Declarations

Frequently Asked Questions Related to the FMCSA Emergency Declaration 3/20/20

Frequently Asked Questions Related to the FMCSA Emergency Declaration Part 2: 3/25/20

The So Called ‘Flexible’ Hours of Service Final Rule submitted to White House: Early in March, Jim Mullen, The FMCSA’s Acting Administrator announced that the agency was submitting the proposed changes and that the Final Rule was filed with the Office of Management and Budget (OMB) on Monday, March 2nd. The OMB now has 90 days to approve or reject the final rule. Once approved, the Final Rule can then be published in the Federal Register but it would likely be months or even years before the changes to HOS would go into effect. August of 2018 is when the FMCSA first started working on the regulation when it published an Advanced Notice of Proposed Rule Making and asked for public comment.

ISS-CAB Values by Total Carriers and Percentage of Carrier: Snapshot date is 3/9/20. Explanation: 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 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.

DOT Drug & Alcohol Testing Disruptions Addressed During COVID-19: Motor carriers subject to DOT drug and alcohol testing under the Federal Motor Carrier Safety Administration (FMCSA) received guidance from the agency allowing for some flexibility until June 30, 2020, due to the COVID-19 pandemic. The COVID-19 national emergency has created disruptions that are interfering with, and often preventing, compliance with the drug and alcohol testing requirements. The FMCSA has provided the following guidance (in addition to ODAPC’s notice) in respect to testing operators of commercial motor vehicles (CMVs) requiring commercial drivers’ licenses (CDLs). Below are links to the most recent guidance issued by the FMCSA.

Below is additional guidance issued by the FMCSA Related to Drug & Alcohol Testing

DOT Guidance on Compliance with Drug and Alcohol Testing Regulations 3/23/20

DISRUPTIONS TO DRUG AND ALCOHOL TESTING DUE TO THE CORONAVIRUS DISEASE 2019 (COVID-19) PRESIDENTIALLY DECLARED NATIONAL EMERGENCY

Waivers granted for expired CDLs, CLPs, and medical cards: FMCSA grants, until June 30, 2020, a waiver from certain regulations applicable to interstate and intrastate commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders and to other interstate drivers operating commercial motor vehicles (CMVs).Consistent with the requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, limited in scope and circumstances, that is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver until June 30, 2020. For additional information on the waiver, click here.

ATRI & OOIDA Join Forces to Better Understand how COVID-19 is Impacting Trucking: The American Transportation Research Institute (ATRI) and the Owner-Operator Independent Driver Association Foundation (OOIDA Foundation) are conducting a joint research study to understand the numerous impacts that the Coronavirus pandemic is having on trucking operations. The research focuses heavily on a survey that solicits critical input from truck drivers and motor carrier staff who are encountering Covid-19 impacts such as limited shipper access, changing distribution patterns and traffic-related issues. “This survey will help us confirm what we know anecdotally,” said Tom Weakley, Director of the OOIDA Foundation, “that the trucking industry is leading the charge in responding to food and medicine shortages among other critical supplies. We need everyone’s input on this effort.” Anyone involved in trucking operations is urged to respond. “Our goal is to complete the data analysis as quickly as possible, as it can provide important guidance to public and private decision-makers. The Covid-19 pandemic is a moving target, and we can’t afford to design policies and supply chains around guesswork,” said Dan Murray, Senior Vice President at ATRI. For additional information, click here.

Roadside Breakdown Costs Continue to Rise: The TMC/FLeetNet Benchmarking program noted that unplanned roadside maintenance costs have risen 26% in the past year. The main reasons for this are labor rates due to the technician shortage, longer repairs times and more towing events due to the added complexity of newer equipment and increased parts cost partially due to tariffs. These increased costs continue to add pressure to an already exasperated industry.

CASES

AUTO

The first trucking case decision in which Covid-19 is mentioned as having an impact on litigation. The Northern District of Illinois addressed the need for continued discovery of medical professionals concerning the injuries suffered by the plaintiffs in a truck accident. The court held that it would apply a broad construction of concept of “burden” of medical discovery in civil tort cases was warranted during COVID-19 public health emergency, for purposes of weighing burden of proposed discovery from medical professionals and treatment providers in personal injury action arising out of motor vehicle accident. The court said:

In other words, the medical community is very, very busy right now, and likely will be busy for weeks or months to come. And these doctors and nurses are busy preparing to take care of sick people. Soon they may be taking care of more sick people than they can handle. We all hope that conditions will not overwhelm our health care system, but at this writing, we do not know how significant the impact will be. Even if the system is not overwhelmed, it may be strained to at or near its limits. Physicians who do not normally practice emergency care may find themselves deployed to emergency rooms. Physicians who might never practice emergency medicine may find themselves immersed in logistical planning or other essential services. It is reasonable for all of us to expect that at this moment and at least for the next few weeks and possibly longer, the situation at hospitals and medical offices will be all hands on deck.*

*All hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit.

Discovery is going to be curtailed in this time where we need them all to focus on the public health. Devine v. XPO Logistics Freight, 2020 WL 1275087

A plaintiff was successful in getting a new trial after the jury found her 50% at fault for a truck accident. The New Jersey Appellate Division held that introduction of evidence of her medical condition and her alleged medication non-compliance was in error, and capable of producing an unjust result. Back to a new jury to decide who had the green light at the time of the accident. Wegner v. Derrico, 2020 WL 969824

The Northern District of Ohio gave some relief to a motor carrier, concluding that violations of administrative safety rules do not constitute negligence per se. The court also granted summary judgement to the motor carrier on causes of action for strict liability and negligent hiring. The court rejected the request for summary judgment on the sudden medical emergency defense Yoon v. K-Limited Carrier, 2020 WL 1031486

Claims of negligent hiring, retention and supervision were dismissed against a motor carrier in the Eastern District of Texas. The court held that plaintiff failed to allege contentions sufficient to establish a direct claim against the motor carrier. Joseph v Hood, 2020 WL 1076040

Over in the District Court in South Carolina the court held that plaintiff would not be permitted to assert claims of negligent selection of an incompetent or unfit motor carrier against the shipper and consignee or claims that the driver was an agent or statutory employee of the shipper. Ruh. V. Metal Recycling Services, 2020 WL 1303136

Can you remove a case to federal court after you moved to have the case dismissed in another court on the grounds of forum non conveniens? The Eastern District in Kentucky said yes, refusing to remand the transferred case back to state court where there was no explicit waiver of the right to remove. Defendant did lose its attempt to seek dismissal of plaintiff’s claims of negligent hiring, retention, supervision, entrustment, and training. The court held discovery would proceed. Kidwell v. Maybach International Group, 2020 WL 897609

In a similar move, the Eastern District of Texas dismissed a claim of negligent entrustment against a trucking company. The court held that the plaintiff had not produced any evidence that the motor carrier knew the driver was reckless. Anduza v. Baer, 2020 WL 1027678

Last month we reported that the Western District of Arkansas would not stay an action against a truck driver when there were criminal proceedings still in play. This month the court reconsidered its decision and imposed a stay in the civil proceeding. Edwards v. Thomas, 2020 WL 888538

The 9th Circuit refused to allow a plaintiff a new trial following a limited verdict in her favor. The court agreed with the trucking company that it was entitled to submit evidence that plaintiff really suffered no financial loss, beyond unpaid medical, and that her injuries were, in part, preexisting. The defendant was not able to recover fees. Weber v. TMG Logistics, Inc. 2020 WL 9566777

Although we will not find out whether such a claim will be supportable, because the Southern District of West Virginia concluded that there was no personal jurisdiction, it is interesting to note that plaintiffs sought to recover against a company that performed services, including evaluating and screening new hire drivers for the defendant motor carrier, contending that they should not have permitted the driver to be hired. Gilley v. C.H. Robinson, 2020 WL 1272116

Enough is apparently enough. When a pro se plaintiff, after losing at trial, spent the next few years filing suits against everyone involved in the case, including the insurer, defense court, the court and the President, the Middle District of Georgia finally said enough. The court concluded that plaintiff’s claims were barred by res judicata, barred by absolute judicial immunity, or failed to state a claim for which relief can be granted. The court also held that the plaintiff was enjoined from filing any additional suits against the defendant without first receiving court permission. Williams v. Land, 2020 WL 1264177.

The Court of Appeals in Georgia held that OCGA § 40-2-140 (d) (4), permits direct actions against the insurers of interstate trucking companies. The statute provides “Any person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.” Daily Underwriters of America v. Williams, 2020 WL 1239481

Whether a driver assumes the risk that cargo will fall on him when he knows he should not be near the truck during unloading was a question of fact. The District Court in South Dakota denied the defendant’s motion for summary judgment. Gray v. Macarthur Company, 2020 WL 999007

Dash cams to the rescue! The Northern District in Illinois ruled in favor of the United States government in a case involving an impact with a postal truck and a bicycle. The court accepted the truck driver’s version, since the dash camera video footage showed the truck slowing down at a comparable rate to the silver car in front of it, driving straight and not swerving and the inside camera showed that the driver was listening to a simple radio talk show at an appropriate volume at the time of the accident. Lazcano v. U.S. 2020 WL 1157368

When the motor carrier denied that its driver was involved in a truck accident defendant’s motion for summary judgment was largely premature. The Western District of Oklahoma said that with that pivotal question of fact, i.e. was the driver in an accident, still at issue, the questions of claims for negligent hiring, training, supervision, and entrustment claims would remain to be litigated. The court also held that the plaintiff’s claim for punitive damages on the theory of respondeat superior would continue pending resolution of the question of the accident. Kittles v. Harav, LLC 20202 WL 1159396

A motor carrier was unsuccessful in reversing the denial of its request for summary judgment arising from a truck accident. The collision occurred when plaintiff attempted to exit an interstate highway, encountered icy conditions on the exit ramp, and then lost control of her vehicle, which veered back into the lanes of interstate traffic where it was struck by the defendant’s tractor-trail Defendants moved for summary judgment dismissing the complaint against them, contending that Burrell was not negligent and that he acted reasonably in response to an emergency situation. The Appellate Division in New York agreed with the trial court that there were questions of fact as to whether the truck was following too closely in light of the weather conditions. Bass v. Burrell, 2020 WL 1224411

Immediately removing a case to federal court under the diversity rule in order to get it done before the non-diverse defendant is served does not always work. The Western District in Oklahoma remanded the case back to state court when the plaintiff was actively trying to serve the driver at the time of removal. Woods v. Dr. Pepper Snapple Group, Inc., 2020 WL 917284

A motor carrier was denied summary judgment when the plaintiff claimed that she made the lane change while the driver was stopped at a red light, and she remained stopped ahead of the truck for at least ten seconds before the collision. The Eastern District in Louisiana held that there was no need to see or make eye contact with the driver to ascertain his intention, if he was stopped at a red light. A question of fact remained. Arroyo v. Travelers Indemnity Co., 2020 WL 1030831

The Western District in Virginia addressed the obligations of a trucking company and shipper for a fatal truck accident. The court granted the motor carriers motion to dismiss claims against the trucking company for negligence, vicarious liability as a statutory employer, negligent entrustment, and negligence or negligence per se by aiding and abetting violations of the FMCSRs. It did, however, permit a claim for negligence per se. With respect to the shipper the court held that the plaintiff failed to support a claim that the shipper assumed the duty for safe transport or a claim for negligent hiring. It should be noted, however that the court permitted an amendment of the complaint to permit the plaintiff to allege the history of safety violations and the conditional DOT rating to support a claim for negligent hiring. McKeown v. Rahm, 2020 WL 1250499

The 10th Circuit Court of Appeals held that it did not have jurisdiction to hear a claim by an auto insurer challenging the judgment of the district court ruling on timely motion by the CGL insurer to correct or amend an amended judgment, seeking reimbursement for auto insurer’s share of defense costs in underlying action against insured. The accident arose when a worker at site of crude oil was injured in a fire from ignition of gas were. The court further held that the exclusion in commercial automobile insurance policy for accidents arising out of operation of pump applied and the automobile exclusion in CGL insurance policy did not apply; and that the voluntary-payment doctrine under Wyoming law did not apply in context of two insurers jointly settling claims against their joint insured under mutual reservation of rights. Carolina Casualty Ins. Co. v. Burlington Insurance Co., 2020 WL 948338

Who pays the Pip benefits when the truck driver is hurt? The Eastern District in Michigan concluded that personal auto insurer did not have to pay PIP benefits when the driver was in a truck hauling freight at the time of the injury. The court held that he was an employee at the time he was injured, and therefore the “employee exception” of Mich. Comp. Laws § 500.3114(3) applied. The bob-tail policy did not apply either, leaving the trucker’s auto policy as primary. Horace Mann Ins. Co. v. Acuity, 2020 WL 1323234

A truck broker’s argument that negligent hiring claims against it are preempted, and therefore allowing the plaintiff to allege such a claim would be futile, was unavailing in the Southern District of West Virginia. The court held that there were various jurisdictions that did not agree and plaintiff should be afforded an opportunity to assert the claim. Taylor v. Sethmar Transportation, Inc., 2020 WL 1181531

A motor carrier was unsuccessful in having a punitive damages claim dismissed in the Middle District of Pennsylvania. A piece of cargo had come off the truck, striking and killing the decedent. The court held that what may constitute a known risk regarding the cargo securing devices at issue was a matter for discovery. The complaint contains allegations which, if proven, plausibly show reckless indifference to the safety of others in that the importance of properly securing a load of angle iron and steel joists cannot be disputed and the requisite degree of culpability for any deficiency related to securing the cargo could potentially support punitive damages if proven. Houck v. WLX, LLC 2020WL 1289810

Employee or independent contractor? Not a question to be resolved on the pleadings apparently. The Northern District of Illinois concluded that there were too many questions on whether the plaintiff was a co-employee when injured in a truck accident. The applicability of the employee exclusion would take longer to resolve. American Inter-Fidelity Corp. v. Hodge, 2020WL 1433783

Independent claims for negligence were not permitted against a motor carrier when it admitted vicariously liability for the actions of the driver. The Eastern District of Louisiana, applying state law, concluded that no such claim existed. Jones v. National Liability & Fire Ins. Co, 2020 WL 1332944

CARGO
Making sure that pleadings are sound when dealing with household goods loss and damage claims is often difficult. The Middle District in Alabama provided a road map for the plaintiff’s claims against a motor carrier and a broker, once again allowing plaintiff the opportunity to amend. The court also ordered the plaintiff to show why he believed it could assert a claim against a broker. Peters v. Liberty Bell Moving Group, 2020 WL 1069731

We do not see many claim filing cases these days. The Western District in Kentucky upheld the tariff requirement that a claim be filed in writing within nine months. A general email within the nine months did not substantially comply with the claim filing requirements. Secura Insurance v. Old Dominion Freight Lines, 2020 WL 1430608

A default judgment was entered against a motor carrier in the Southern District of Alabama for damage to household goods. The court held that plaintiffs had established their right to $70,000.00 in damages for repair and replacement cost for the damage to the goods. Rollason v. All State Van Lines Relocation, 2020 WL 1171947.

A pro se plaintiff sought to recover an alleged loss of $153 million when a shipment was late in delivery, resulting in the loss of a government contract. The Southern District of Ohio dismissed the pro se complaint because there was no privity of contract between plaintiff, as the owner of a company, and TQL. While the court indicated that the company might have standing to bring such an action the plaintiff had no standing to bring such a claim on behalf of the company. Brown v. Total Quality Logistics, 2020 WL 1289761

As a carrier learned in the Eastern District in California It is important to make sure that everyone understands what contract applies to a particular shipment. The motor carrier was unable to enforce its forum selection clause as it was determined by the court that it had failed to show that an earlier contract applied to the shipment at issue. Access Biologicals, LLC v. XPO Logistics, 2020 WL 1139560

WORKER’S COMPENSATION

Summary judgment was granted to a motor carrier who was sued for injuries suffered by the truck driver operating its vehicle. The Court of Appeals held that there was no question as to employment status and that the plaintiff’s exclusive remedy was worker’s compensation. The fact that the co-drivers were paid on 1099’s and not on a W-2 did not create a jury issue of the employment status. Estes v. G&W Carriers, 2020 WL 1074056

In a dual truck accident lawsuit the defendant was permitted an opportunity to amend its complaint to seek recovery of worker’s compensation payments made on behalf of its driver employee. The District Court in Rhode Island held that the defendant should be permitted the amendment, even if the statute had run as the new cause of action related back to the allegations already in suit. Buerman v. Witkowski, 2020 WL 1083681

A motor carrier was unsuccessful in seeking dismissal of a suit by a co-driver for injuries suffered in a truck accident. The Eastern District in Texas held that the issue of employment was outside the scope of the pleadings and could not be resolved on a motion to dismiss. Summary judgment was the appropriate remedy. Milburn v. Colonia Freight Systems, 2020 WL 1289436

The Supreme Court in Nebraska considered the obligations of an insurance broker to advise about worker’s compensation obligations. The plaintiff employee alleged that the broker was negligent in failing to advise employer of obligations under Workers’ Compensation Act and that the auto insurer acted in bad faith in denying a defense in underlying suit. The court held that the broker did not have a duty to advise employer of its workers’ compensation obligations, and the employer’s liability exclusion in commercial automobile and (CGL) provisions applied. Merrick v. Fischer Rounds & Associates, 305 Neb. 230

A class action filed by various truck drivers was decertified by the Supreme Court in Iowa. The drivers sought to assert that an agreement which required them to undertake short term light duty and treatment in Des Moines was not enforceable. The court held that the district court abused its discretion by certifying this case as a class action. The commonality requirement is lacking, individual issues predominate over common ones, and workers’ compensation claims must be resolved by the workers’ compensation commission before judicial review. Roland v. Annett Holdings, Inc., 2020 WL 131378

Thanks for joining us,

Jean & Chad

February 2020

CAB Bits & Pieces February 2020

Happy winter, but hopefully not much longer!

Well, at least for a little while longer. Earlier this month our friend Punxsatauney Phil predicted an early spring declarding “Spring will be early, it’s a certainty.” I, like many others, are optimistic that he’s right and we can look forward to warmer temperatures and clear roads for all the transportation companies out there. Even though the weather is cold, our crack team of IT Professionals and Programmers continue to enhance CAB’s functionality. Continue reading for new training opportunities, tips & tricks, newsworthy items and industry related court cases that could affect you.

Live Training Sessions

Apparently our live training sessions were sorely missed. Mike and Chad, respectively, had plenty of company as they did the scheduled training last month. This month we will once again have general CAB training on March 10, 2020. We will also have a second shorter presentation (30 minutes) which will focus only on the use of the Basics Calculator. That session will be held on March 17, 2020, St. Patty’s Day! Unfortunately we could not find a leprechaun to provide the training so it will be left to one of the team! You can register for either session from our Webinars page or by logging in and clicking this link https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest some focused training that you might want to see. We are looking forward to connecting with you during these sessions. Do not hesitate to ask questions.

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CAB’s Tips & Tricks: Inspections / Accidents tap sort functionality

Recently, we’ve heard from a number of users on possible enhancements to the Shippers and Vehicles sections of the Inspections / Accidents tab. Enhancements that would be useful when reviewing a larger motor carrier where there may be numerous shippers and vehicles to evaluate. We pride ourselves on hearing your requests and moving quickly to provide the best solutions for you. We listened and enhanced!

First the Shippers section. When you first land on the page, the shippers will be sorted alphabetically. We’ve now added a button to sort the shippers by “#Insp” or number of inspections. Clicking on this button will quickly allow you to understand the shippers that the motor carrier is working with most frequently. An example is below.

We’ve added similar functionality to the Vehicles section just below the Shippers section. When you land on the page, the VINs will be sorted alphanumerically. Now in addition to VINs, you can also sort by Crash(es), OOS Violation(s), Shared Vehicles & Last Inspected. When clicking the sort button it will change the order by the desired criteria for both Power Units and Non Power Units. This new functionality will allow users to quickly identify and review the VINs based on whichever criteria is most relevant. The Example below is sorted by OOS Violations.

We at CAB are constantly striving to improve our tools and resources to create value for our users. 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:

American Transportation Research Institute (ATRI) Releases Top 100 Truck Bottlenecks for 2020: Unfortunately, not much has changed from previous years as the Intersection of I-95 and State Route 4 in Fort Lee, NJ continues to be the #1 freight bottleneck in the country. Locations with major congestion were found to have average daily speeds of 45 mph or less. According to the Federal Government, traffic congestion costs commuters almost $180 billion in wasted time and fuel in 2017. The following areas round out the remaining top 10 Truck Bottlenecks for 2020: #2) Atlanta: I-285 at I-85, (North) #3) Nashville: I-24/I-40 at I-440 (East) #4) Houston: I-45 at I-69/US 59 #5) Atlanta, GA: I-75 at I-285 (North) #6) chicago, IL: I-290 at I-90/I-94 #7) Atlanta, GA: I-20 at I-285 (West) #8) Cincinnati, OH: I-71 at I-75 #9) los Angeles, CA: SR 60 at SR 57 #10) Los Angeles, CA: I-710 at I-105. For a complete list with all 100 Bottleneck locations, click here.

FMCSA HOS Rule Changes Still Under Review: Joe DeLorenzo, an FMCSA Official noted that potential changes to the hours of service (HOS) rules continue to be under review. He identified the public comments solicited last year as being very helpful. Currently there is no timetable, but the HOS Rule remains a top priority for the acting administrator Jim Mullen. Last summer the FMCSA proposed five changes to the HOS rules involving tweaks and increased flexibility to different areas of the rules. Mr. DeLorenzo noted that the final rule could end up with most people still being a little unhappy and that could be a sign that the agency got the rule changes right. You can review the 5 proposed HOS rule changes here.

Central Analysis Bureau Calculates Crashes Per Million Miles Traveled: This table shows, for each power unit range, the total number of different types of federally reportable crashes, and the associated rate per million miles traveled. Crashes include those that occurred during the 12 month period ending on January 31st, 2020. Power unit and mileage data come from the most recent data we have for each carrier. Only carriers that were active during the past 12 months are included.

FMCSA’s Drug & Alcohol Clearinghouse Identifies Almost 8000 Substance Abuse Violations in the First Weeks of Operation: The 8000 positive substance abuse tests have come since January 6, 2020. The clearing house has more than 650,000 registrants. “We’ve seen encouraging results from the Drug and Alcohol Clearinghouse, but there’s still work to do to ensure we identify more drivers who should not be behind the wheel. The clearinghouse is a positive step, and the Agency continues to work closely with industry, law enforcement, and our state partners to ensure its implementation is effective,” said FMCSA Acting Administrator Jim Mullen. It is important to note that these violations were not previously reported and prior to the Drug & Alcohol Clearinghouse, would not have been known. For the complete press release, click here.

Government Issues CBD Warning for DOT Regulated Safety Sensitive Employees: The accessibility and use of CBD products and oils has exploded in the last year. It is important for all employers and safety-sensitive employees (CDL Drivers, pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, ship captains, among others) to know: 1) The Department of Transportation requires testing for marijuana and not CBD. 2) The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”* Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label. 3) The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products. The complete notice can be reviewed here.

CVSA’s International Road Check Set for May 5-7: This year’s emphasis will be on Driver Requirements. The 202 International Roadcheck: Driver Requirements can be accessed here. The Commercial Vehicle Safety Alliance’s (CVSA) International Roadcheck will take place May 5-7. International Roadcheck is a high-volume, high-visibility three-day enforcement initiative that highlights the importance of commercial motor vehicle safety through roadside inspections. Over that 72-hour period, commercial motor vehicle inspectors in jurisdictions throughout North America will conduct inspections on commercial motor vehicles and drivers. For additional details, click here.

CASES

Auto

A trucking company’s second and third-layer excess liability insurers brought action against first layer insurer for declaratory judgment and equitable contribution based on claim that aggregate corridor deductible of $2.5 million above self-insured retention operated below first layer of coverage and did not erode it. The 7th Circuit held that the deductible endorsement was ambiguous and that the endorsement eroded the limits of the first layer of coverage. The complexities of these policies, and the interpretation of how the policies are to be applied, are dealt with in great detail by the court. We urge consideration of these issues when attaching to these high end excess policies. Lexington Insurance Co. v. RLI Insurance Co., 2020 WL 416086

Generally the court will compel plaintiffs to appear for depositions in the venue where the case was commenced. The District Court in New Mexico held otherwise, denying the trucking company’s demand that plaintiffs appear for depositions. The court found that the burden of requiring plaintiffs to travel from their home in the United Kingdom to New Mexico for their depositions was outweighed by the benefit obtainable via use of videoconference and other electronic means. Leeson v. Wright Trucking Company, 2020 WL 435367

A truck driver facing criminal charges for a fatal truck accident was unsuccessful in obtaining a stay of the civil suit. The Western District of Arkansas concluded that after weighing all relevant factors a stay of the civil case was inappropriate. Edwards v. Thomas, 2020 WL 522709

A claim for punitive damages would not be permitted where there was no evidence that the truck accident was caused by anything other than carelessness. The District Court in Colorado denied a plaintiff’s request to amend the complaint against a trucking company to assert a punitive damages claim. Wortman v. Reinsbach, 2020 WL 486956

A plaintiff was unsuccessful in pursuing a shipper for injuries caused in a truck accident on the theory that the shipper should have been aware that the trucking company was unsafe. Plaintiff relied upon allegations that there was a long history of federal safety violations which were public record. The District Court in South Carolina held that the trucking company was an independent contractor and this was not a non-delegable duty, rejecting the claim against the shipper. Ruh v. Metal Recycling, 2020 WL 491287

The Appellate Division in New York reversed the trial court decision in which the insurer provided coverage for a truck accident. The court held that the defendant insurer’s “Any Auto Legal Liability” endorsement extended the definition of “insured auto” to include “any auto, if you are a partnership, corporation, or any other entity,” which included the trailer driven by its additional insured. While there could be exclusions which might be applicable the exclusions would not negate the defense obligations. Zurich American Insurance Co. v Ace American Insurance Co., 2020 WL 369518

The Western District of Pennsylvania concluded that a plaintiff injured in a truck accident could proceed with a direct claim for strict liability against the lessor of a truck. The plaintiff alleged that the truck lacked necessary safety systems and failed to notify lessee of options and the court held there was enough to allow the case to continue. Shimmel v. Navistar 2020 WL 889023

When a truck driver failed to present evidence that a shipper owed him a duty to properly load rolltainers so that they were safe for movement, the trial court granted summary judgment to the shipper. Plaintiff’s appeal to the 7th Circuit was unavailing. The failure to present arguments in the trial court on the basis for a duty owed was determined to be a waiver of the arguments that the driver attempted to make on appeal. Till v Dolgencorp, LLC, 2020 U.S. App. LEXIS 3799

When the plaintiff claimed that it was a UPS truck which hit him and took off, the Eastern District in Pennsylvania was unwilling to grant summary judgment to the motor carrier even where there was no evidence beyond the plaintiff’s testimony, to support the claim. The court held that it would be up to the jury. Levy v. UPS, 2020 U.S. Dist. LEXIS 27533

When the truck driver was completely stopped in a turn lane and was struck by the plaintiff the court held that the truck driver bore no liability for the accident. The Eastern Division in Ohio granted summary judgment to the motor carrier. Kinzer v. Serv. Trucking, 2020 U.S. Dist. LEXIS 28009

A defendant’s claim that it was not subject to federal safety regulations when operating a 2014 Ford Truck Series was not sufficient to confer federal court jurisdiction. The Southern District of Illinois remanded the case back to state court, concluding that the fact that the defendant refuted allegations that they were subject to the FMCSR at the time of the incident did not alter the rule that a potential federal defense is not enough to create federal jurisdiction. Dippel v. Bestdrive, LLC, 2020 u.S. Dist Lexis 27853

Plaintiff’s negligence and gross negligence claims against a freight broker were held to be completely preempted by the FAAAA. The Western District of Texas remanded the action against the motor carrier and driver back to state court, concluding that the broker should be dismissed. The dismissal of the broker defeated federal jurisdiction. Gillum v. High Std., LLC, 2020 U.S. Dist LEXIS 14820

The Second District in California held that an orchard owner that hired a trucking company was not liable for injuries caused when the truck driver, fell from the truck while unloading bins and was crushed by forklift. While plaintiff argued that under premises liability theory based on unsafe condition that road where employee was working was too narrow for forklift to safely access bins in order to assist in the unloading, the court rejected the argument where unsafe condition was openly visible and known to employee. Alaniz v. Sun Pacific Shippers, 2020 WL 562381

The auto exclusion in a general liability policy was held by the Eastern District in California to be sufficiently ambiguous, and further concluding that the reasonable expectation of the insured was that it was covered for claims arising out of its alleged negligence with respect to using, operating, and/or training others to use the tractor involved in the collision at issue. Summary judgment was denied to the insurer. Penn-Star Insurance Co. v. Zenith Ins. Co., 2020 WL 509148

While the motor carrier was successful in seeking dismissal of claims for negligent hiring, entrustment, retention and negligence per se it was unsuccessful in having the punitive damages claim dismissed. The Northern District in Oklahoma held that sufficient facts were asserted to at least support a claim for punitive damages against the driver. The court also concluded that the motor carrier could be vicariously liable for those damages. Conway v. Lone Star Transportation, 2020 WL 609750

When a defendant truck driver died during the litigation the court would not automatically permit substitution of the driver for an administrator of the driver’s estate. The Middle District of Alabama concluded that when there was no estate to administer forcing a substitution to represent an non-existent estate was senseless. Powell v. HM Trucking, 2020 WL 710615

The Eastern District of Louisiana agreed that a trucking company would have no direct liability for the injuries suffered to the plaintiff in a truck accident. As the motor carrier conceded that the driver was operating in the course and scope of employment, and the motor carrier was vicariously liable for the driver’s actions, the claims for negligent hiring, training supervision and entrustment would be dismissed. Pigott v Heath, 2020 WL 564958. A similar decision was reached by the same court in Daniels v King, 2020 U.S. Dist. LEXIS 18655. The same result was reached in the Middle District in Georgia where vicariously liability was admitted by the motor carrier. The court also dismissed the claim for lost wages where the plaintiff, also a truck driver, could not support his claim for damages. Perez v. Bowman, 2020 WL 522141

In another multi-truck accident the Court of Appeals in Tennessee considered the jury verdict rendered in favor of one truck driver for his damages suffered in a rear end collision by another truck. The court partially rejected the trial court’s reduction in the jury award. It is an interesting read on the earning capacity of a truck driver. Borne v. Celadon Trucking Services, Inc., 2020 WL 556289

A defense verdict was upheld by the Court of Appeals in Texas. The plaintiff, unfortunately, was killed when a driver who was working with the plaintiff to fix a tire, released his air brake causing the vehicle to roll backward and pin the plaintiff against a wall. The court agreed that the jury acted reasonably in concluding that the driver was less than 50% at fault. Pedroza v. Salazar, 2020 WL 728309

Even when the evidence really indicates that the truck driver was not at fault, the courts are often loath to grant summary judgment. The District Court in Maryland denied judgment to a motor carrier who struck the plaintiff’s vehicle after the plaintiff’s vehicle hit a guard rail and slid into the motor carrier’s lane of traffic. , The court concluded that a reasonable jury could find in plaintiff’s favor because the jury could conclude that the truck should not have been following closely behind the plaintiff. If his vehicle had been further away he might have been able to avoid the hit. Brown v. Houff Transfer, 2020 WL 673294

A truck owner was unsuccessful in avoiding the jurisdiction of the Western District of Oklahoma when the truck accident happened in the state. The court concluded that the fact that its employee drove its truck into Oklahoma while delivering its products at its direction and the fact that Plaintiffs’ injuries arise from such activities was enough to support jurisdiction. Ratley v. Dhafer, 2020 WL 734479

When a plaintiff failed to timely move to amend the complaint to bring in an additional party who might be liable for injuries to a horse which was transported by the defendant the District Court in New Mexico concluded that the request to amend would be rejected. The court held that the plaintiff was fully aware that the motor carrier would point to a third party for liability and should have acted sooner. Rehburg v. Bob Hubbard Horse Transportation, 2020 WL 563375

Moving to amend pleadings seems to be disfavored this month. The Western District in Washington refused to allow a trucking company to amend its answer to assert apportionment of liability against the owner of the premises where the accident occurred. That direct claim by the plaintiff had previously been dismissed. The court held that the undue delay and bad faith in bringing the motion, combined with the partial futility of the proposed amendment allowed it to reject the request. Neff v. Desta 2020 WL 606586

Cargo

A truck broker’s claims against a motor carrier’s insurer, and the shipper, for a cargo loss were dismissed in the Western District of Wisconsin. The plaintiff was unable to sustain a basis for jurisdiction against either party. Ikon Transportation Services v. Texas Made Trucks, 2020 WL 416765

Preemption was once again the subject of cargo litigation. The Northern District of Texas held that the claim against a motor carrier for throwing away the plaintiff’s goods was preempted by Carmack. Removal to federal court was deemed proper and the state law causes of action were dismissed. Shamoun v. Old Dominion Freight Lines, Inc., 2020 WL 570903

A cargo owner was not permitted to proceed on a claim for fraudulent inducement on the theory that the motor carrier knew it could not safely transport the plaintiff’s cargo. The District Court in New Jersey dismissed that portion of the plaintiff’s complaint. Mitsui FoodsSynergie Canada, Inc., 2020 WL 468337

A motor carrier’s settlement with two cargo owners for its policy limit was held to be a good faith settlement in the Eastern District of California. As a result of that determination all claims for contribution and/or indemnity by the truck broker would be barred. Moore v. ANG Transport, 2020 WL 406777

Storage in transit can last for a long time, as the plaintiffs discovered in their suit for property damage in the Northern District of Illinois. The court rejected the motion to remand the case back to state court, concluding that the 6 years that the goods were in storage was SIT and therefore the only claim which existed was one under the Carmack Amendment. Brunner v Beltmann Group, Inc., 2020 WL 635905

When is delivery complete? The Court of Appeals in Ohio agreed with the trial court that delivery was complete when the driver parked for unloading and the bill of lading was signed. When the granite slabs fell off during the unloading process the motor carrier was not liable and rejected the brokers claim for payment. Total Quality Logistics v. Balance Transportation, LLC., 2020 WL 877795

Motor carrier or broker? Always a question. The Eastern District in Pennsylvania held that there were questions of fact as to whether the defendant acted as a broker or a carrier with respect to the claim for damages to mushrooms delayed in delivery. The court also concluded that a prima facie claim for recovery was made with the production of an email which indicated that the mushrooms were deteriorating at delivery. However the court did give the defendant some assistance by dismissing some of the state law claims. Marson v. Alliance Shippers, 2020 WL 618581

Worker’s Compensation

A worker’s compensation insurer was granted the right to intervene in the plaintiff’s claim against a trucking company for injuries. The Northern District of Ohio concluded that the insurer, although it delayed in seeking intervention, was still entitled to protect its interest. Schmid v. Bui, 2020 WL 377821

Factoring

As usage of CAB data and reports has extended to other operations which service the trucking industry we will report relevant cases when they come up. This month the Middle District of Tennessee addressed a claim between a trucker and a factor over the business practices of the parties. The court granted summary judgment to the factoring company on the claims asserted against it for fraud and breach of contract, also awarding costs and fees. The motor carrier failed to respond to discovery with evidence to support the claims. Pinesa Transportation, LLC v. FleetOne Factoring, LLC, 202 WL 529231

© 2020 Central Analysis Bureau