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Bits & Pieces

July 2019

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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