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Bits & Pieces

Volume 20, Edition 6

Welcome to summer.  Hopefully everyone is trying to find some time to relax and enjoy.  If you are heading toward the Jersey Shore stop in for a visit!

We have some news for you as you head out for the July 4th holiday:

CSA STUDY COMPLETED – As you may recall Shuie & I had the opportunity to appear before the National Academies of Sciences when they were addressing whether CSA accomplishes what it was intended to do.  We were there to address your concerns and your need for data.  The CSA report has come out and can be viewed here.  Overall the general feeling is that the system is sound but needs some improvement. The FMCSA was advised to develop a more statistically principled approach based on an item response theory (IRT).  The report identified a number of data quality issues and recommended that FMCSA should continue to collaborate with states and other agencies to improve the collection of data on vehicle miles traveled and on crashes, data which are often missing and of unsatisfactory quality.  Including vehicle miles traveled data by state and month will enable SMS to account for varied environments where carriers travel.  In addition, the report says FMCSA should research ways of collecting data on carrier characteristics — including driver turnover rates, type of cargo, and method and level of compensation. This additional data collection would require greater collaboration between FMCSA and the states to standardize the effort and to protect carrier-specific information. They did not address whether the SMS ranks should be made public because they felt there was a need for a more formal evaluation of the consequences of public disclosure.

CDL LICENSES – The FMCSA has proposed two regulations to help minimize the national shortage of truck and bus drivers.  Under the new rules, State Driver Licensing Agencies can waive the CDL knowledge test for qualified veterans and active duty personnel, including National Guard and Reserves.  Under a second rule states will be allowed to issue a CDL learner’s permit with an expiration date of up to one year, replacing the current six-month limitation.

TRUCK AND BUS STATISTICS – The FMCSA has released the Pocket Guide to Truck & Bus Statistics.  The report is interesting and provides information on the overall state of the industry, enforcement activity, details on violations and incidents and costs of crashes.  From a number perspective, the FMCSA regulates all registered commercial motor vehicles that operate interstate or that carry hazardous materials.  As of December 2016, 524,058 interstate motor carriers and intrastate HM motor carriers had recent activity operating in the United States.  272,928 were for-hire carriers, 200,094 were private carriers, 46,529 were both for-hire and private carriers, 4,507 were neither for-hire nor private carriers (e.g., government).   There are approximately 5.9 million CMV drivers operating in the United States.   A copy of the report can be viewed here.

INSURANCE REQUIREMENTS – In case you missed our news blast, the FMCSA has withdrawn the notice of proposed rulemaking on possible increases in filing limits for motor carriers.  Public comments did not provide the FMCSA with the necessary data it needed to move forward with the rulemaking to revise minimum levels of financial responsibility for motor carriers, freight forwarders, and brokers.

SUPREME COURT REJECTS REVIEW REQUESTS – The Supreme Court has rejected requests for review of the OOIDA attack on ELDs and the PSP program, letting stand lower court decisions upholding the regulations. Under the ELD rule drivers must use ELDs by December 18, 2017.   The PSP was held not to violate a driver’s privacy and will continue to operate.

LEASE & INTERCHANGE REGULATIONS FOR BUSES DELAYED – Passenger-carrying vehicles do not have the same leasing/interchange regulations and requirements that motor carriers of property are subject to. They can lease, interchange, borrow other vehicles (including their drivers), assign and re-assign their motor coaches with other companies with limited documentary requirements. In 2015 the FMCSA published rules to require identification of the motor carrier operating a passenger-carrying commercial motor vehicle that is responsible for compliance with the Federal Motor Carrier Safety Regulations and ensure that a lessor surrenders control of the CMV for the full term of the lease or temporary exchange of CMV(s) and driver(s). There were a number of requests for reconsideration of the rule and so the FMCSA has decided to delay the final rule until January 1, 2019 to allow a more detailed analysis.

CANADIAN STUDY – As we get more inquiries on Canadian issues we will post news that may be of interest to you on trucking in Canada. A new study was released indicating that speed-related, at-fault collisions involving large commercial vehicles fell by 73% after mandatory speed limiter legislation took effect in Ontario, according to a recent study by the Ontario Ministry of Transportation.  The Ontario Trucking Association released a year-long study conducted between 2014-2015 which examined data from pre-(2006-2008) and post-(2010-2012) speed limiter legislation by using fatal, injury and police reported property damage collisions on high-speed highways. It also looked at MTO enforcement officers’ large vehicle driver speed data, among other real-world data. The percentage of truck drivers struck in the rear stayed the same from pre- to post legislation (10.03 % of total collisions 2006-2008 and 10.47% 2010-2012), while the rate increased for other drivers (18.6% 2006-2008; and 21.3% 2010-2012).

CURRENT CASES

CARGO

As you may know, the Carmack Amendment has a venue statute which sets forth places where a motor carrier can be sued for a cargo loss.  The Central District of Illinois held that the venue provisions were permissive and not restrictive, meaning you could use them but would not be required to bring suit in those designated venues.  General venue statutes would also apply. Unfortunately for the plaintiff it met none of the venue statues and the action was transferred.  (Starr Indemnity & Co. v. Luckey Logistics, 2017 WL 2466505)

At the same time the District Court in Utah held that it was a mandatory forum selection provision. The Court held that the Carmack Amendment preempted the application of a forum clause in a tariff and master service agreement.  The Court also held that state law causes of action were preempted, permitting plaintiff to amend the complaint to allege only a Carmack action.  (ICON Health & Fitness v. NVC Logistics Group, 2017 U.S. Dist LEXIS 95734)

A shipper was not permitted to seek recovery against a broker for amounts not recovered from the motor carrier in the Court of Appeals in Ohio. The Court held that the claim against the broker was expressly preempted by the Carmack Amendment and the broker was entitled to recover all unpaid freight bills from the shipper.  (Total Quality Logistics v Red Chamber Co., 2017 WL 262818)

The problem with complaints seeking recovery for cargo damage is that they are often broad and the relevant facts needed to address certain issues need not be pled.  That is what happened in the Southern District of California where the defendant sought dismissal of a Carmack claim alleging that the damage occurred in Mexico, which is outside the scope of Carmack.  As the location of the loss was not pled in the complaint the Court would not consider that evidence and allowed the general cargo allegations under Carmack to proceed.  (Certain Underwriters v. Transport Continental, Inc., 2017 WL 2363604)

The Northern District of Texas held that an insurer would be obligated to provide a defense to a warehouseman who was sued for damage to goods in storage when it was aware of water damage to the goods and tried to remediate the goods without disclosing it to plaintiffs.  The Court held that the criminal acts exclusion would not permit the insurer to avoid a defense when there was also a negligence claim.  The Court also held that it would not determine whether the insurer had a duty to indemnify the insured when the ultimate issues would be best resolved in the underlying case.  (Bedivere Insurance Co. v. Pacific Van & Storage of Texas, 2017 WL 2572775)

The District Court in New Jersey held that a default judgment should not be entered against only one defendant when the second defendant is actively litigating the issues applicable to both defendants.  The Court held that if plaintiff was unsuccessful in recovering against the answering defendant the suit would be dismissed against both parties because the claims were intertwined.  (Federal Ins. Co. v. RT&T Logistics, 2017 WL 2691416)

Unlike other Courts which have addressed the issue, the Eastern District of Louisiana has concluded that the state direct action statute will permit suit against the cargo insurer of a trucker despite the fact that the Carmack Amendment preempts all other claims. The Court did conclude that any claim for bad faith against the insurer was preempted.  (Chisesi Bros v. Transco Logistics, 2017 U.S. Dist. LEXIS 91323)

The Middle District in Florida granted a default judgment against a motor carrier for a cargo loss.  While the Court held that the broker was entitled to payment of the claim under the Carmack Amendment the broker was not entitled to recovery of attorney’s fees even with a broker-carrier agreement. The Court held that any claim, other than a claim under the Carmack Amendment, was preempted.  (Scotlynn USA v. Z Top Logistics, 2017 WL 2560925)

The “Kirby” doctrine continues to be the law of the land.  The Eastern District in Illinois held that a shipper was not allowed to sue third party carriers hired to perform portions of a through bill of lading.  The bill of lading precluded claims against those carriers, leaving plaintiff only with a suit against the carrier issuing the master bill of lading.  (Royal Smit Transformers v HC Bea-Luna, 2017 WL 2364362)

WORKER’S COMPENSATION

Does a motor carrier owe worker’s compensation premiums for revenue attributable to other states or for brokered loads or overtime?  The District in New Jersey is considering that issue and addressed discovery disputes by the parties. The Court concluded that the insurer would be entitled to driver’s logs and overtime records but not entitled to information on payments to third party carrier and owner operators as it has not yet established a right to recovery premiums for those operations.  (Employers Insurance Co. of Wausau v. Daybreak Express, Inc., 2017 WL 2443064)

AUTO

A pro-se plaintiff’s efforts to seek compensation from everyone involved in his losing his personal injury action failed in the Middle District of Georgia. The plaintiff sued the trucking company, its insurer, Judge and defense counsel alleging violation of constitutional rights. The Court dismissed all of the plaintiff’s allegations.  (Williams v. Brooks Trucking Co., 2017 WL 2434459)

The Southern District in Florida upheld the provisions of the Graves Amendment, which precludes a claim against a leasing company for the negligence of the trucking company in a personal injury action.  While the Court acknowledged that there was an exception to the rule when there was affirmative negligence on the part of the rental company, the plaintiff had failed to establish any fact to support a claim against the defendant.  (Cardona v. Mason & Dixon Lines, 2017 U.S. Dist. LEXIS 83233)

The 9th Circuit held that a driver was not entitled to seek damages from a consignee  when the driver was damaged by cargo failing from a loaded container he delivered  The Court held that a claim could not be asserted under the Oregon premises liability law when the accident was not caused by a condition on the consignee’s property.  (Haile v. Hickory Springs Mfg Co., 2017 WL 2684119)

A judgment against a truck manufacturer was upheld in the Court of Appeals in Louisiana.  The Court held that the applicable statute of limitations was tolled while the plaintiff truck driver was incapacitated.  The Court further held that it was reasonably foreseeable that the design defect would result in the injury that severely injured plaintiff.  (Marable v.  Empire Truck Sales, 2017 La. App. LEXIS 1163)

Happy 4th of July.  See you next month

 

 

© 2017 Central Analysis Bureau