CAB Bits & Pieces May 2019
Good Day CAB Nation!
As the saying goes, April showers, bring May flowers. However the erratic weather in parts of the country has done little to make it feel like summer is here to stay.
If you’re like my family, you’re in the midst of the end of the school year, which brings graduations and commencement ceremonies for the younger generations. We at CAB would like to wish all of the graduate’s success and a wonderful future as they take steps toward the next phase of their lives and careers.
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Have a great month!
CAB’s Tips & Tricks:
You may have noticed we’ve changed the layout of Carrier Central in the last couple weeks. You’ll note that we’ve added a Contact Radio Button which includes a drop down box with three options. Specifically, users now have a central area to search for phone numbers, email addresses and representatives.
You may have also noticed we’ve added a filter tool (orange arrow below) for search results in Carrier Central. This allows you to quickly filter your results via words or phrases once the search results are returned. This filter tools is also available in My Workspace. This enhanced functionality was put in place to provide additional speed and efficiency when searching for motor carriers.
We’ve also added a new training video to our ever expanding line up.
SALEs-This 15 minute web video provides an overview of the functionality and features of the SALEs lead generator tools. By reviewing the video you will get a better understanding of the SALEs features and learn tips to help you get the best results while using this powerful too. To view the webinar, click here.
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:
IMUA and CargoNet release U. S. Truck Stop Cargo Theft Data. Trucks stops are target rich environments and are spread all over America’s highway system. This reports provides data from 2012-2018 broken down into 4 major regions and 9 divisions. The report notes in the introduction “It is hoped that by highlighting certain common threads shippers, their trucking companies as well as individual drivers can make informed decisions on routing and stops for convenience, fuel or meals.” The report also details 9 Best Practices for protecting cargo. The full report can be downloaded here.
CAB CEO appears on IMUA Panel: Jean Gardner addressed emerging trends and challenges facing the trucking industry earlier this month at the IMUA Conference. Additional members of the panel were Ben Tuttle of Tokio Marine and Ron Wallace of Sompo. The panel discussion was tremendously informative and packed with interesting points. The session was facilitated by AM BestTV and can be viewed by clicking here.
FMCSA Moves Forward with Under 21 Driver Program : The FMCSA continues to move forward with the proposal that would allow younger drivers to operate commercial motor vehicles across state lines. The agency announced their intention via Federal Register Notice on May 14th. The FMCSA is asking for public comment on the 18-20 yr. old proposal. The notice is requesting comment from stakeholders regarding this Federal Register Notice. The Federal Register Notice can be reviewed here.
International Roadcheck Set for June 4-6. Every year, for a 72 hour period the Commercial Vehicle Safety Alliance International Roadcheck focuses on a specific category of violations. This year’s emphasis is on steering and suspension systems which are a critical part of the overall safety system within a commercial motor vehicle. During the 2018 Roadcheck, 67,603 roadside inspections were conducted on large trucks and buses, the CVSA reports. From all inspections, inspectors identified 11,910 vehicles with out-of-service conditions and 2,666 drivers with out-of-service conditions. Of the North American Standard Level I Inspections conducted, 21.6% of commercial motor vehicles were placed out of service. The top vehicle out-of-service conditions were for brake systems (28%), tires and wheels (19%), brake adjustment (19%), and cargo securement (13%). Of the total number of drivers receiving a Level I, II or III inspection, 3.9% were placed out of service for driver-related violations. The top driver out-of-service conditions were for hours of service (1,328), wrong class license (649) and false record of duty status (309). Hours-of-service violations was the top reason drivers were placed out of service during the 2017 and 2018 International Roadcheck enforcement periods. There were 729 safety belt violations. For more information on this year’s Roadcheck, click here.
Everyone wants to get involved with the Hours of Service Changes: Representatives from the Trucking Industry met with the Office of Management & Budget to discuss Proposes HOS Regulations recently. The representatives included national trucking associations and agricultural focused stakeholders. The meeting took place ahead of the expected release of proposed HOS rules changes that are expected in early June. To make things even more interesting the House Appropriations Bill included a number of trucking related provisions including eliminating funding to enforce any rule that eliminates the 30-minute rest break or review or issue any decisions on petitions to preempt state meal and rest break laws that may differ from Part 395.
There are currently 22 states with Active Emergency Declarations, Waivers, Exemptions and Permits: These declarations might be related to national emergencies, wild fires, weather, fuel shortages and the like. To provide vital supplies and transportation services to a disaster area in the United States, emergency declarations may be issued by the President, Governors of States, or FMCSA. These declarations trigger the temporary suspension of certain Federal safety regulations, including Hours of Service, for motor carriers and drivers engaged in specific aspects of the emergency relief effort. An Emergency Declaration is limited to a maximum of 30 days unless extended by the FMCSA itself. For more information on specific declarations across the country, click here.
The FMCSA is Seeking Input on Testing Vehicles with Automated Driving Systems (ADS). The National Highway Traffic Safety Administration and FMCSA today issued advance notices of proposed rulemaking on the removal of unnecessary regulatory barriers to the safe introduction of automated driving systems (ADS) vehicles in the United States. NHTSA and FMCSA are seeking comments at this stage to ensure that all potential approaches are fully considered as the agencies move forward with these regulatory actions. For more information or to provide input, click here.
CASES
Cargo
A transportation broker was successful in defeating a cargo claim asserted against it in the Southern District of Texas. The court held that the broker bore no liability under the Carmack Amendment and that state law claims were preempted. The broker was held not to have a duty to insure that the motor carrier had insurance for the cargo which was being carried. Enbridge Energy, LP v. Imperial Freight, Inc. 2019 WL 1858881
Preemption was once again an issue, this time in the District Court of New Mexico. The court allowed plaintiff an opportunity to amend her complaint for cargo loss to allege a claim under the Carmack Amendment, which provides the exclusive remedy, as we repeatedly report. Rehburg v. Bob Hubbard Horse Transportation, 2019 WL 1995292
Carmack and preemption again! The Southern District of Alabama denied a plaintiff’s request to remand a claim for damage to goods in interstate commerce. The court, correctly, concluded that it had jurisdiction and no other claim, other than one under the Carmack Amendment, could be pled. Rollason v. ITX, 2019 WL 2110575
One motor carrier was lucky in the Southern District of Ohio when the court agreed to vacate the default judgment entered against for a cargo loss. The court held that the motor carrier had possible defenses to the Carmack action and the failure to respond to the suit would be excused. Allen Lund Company v. Captain Freight, LLC, 2019 WL 1003872
Finally a fight over excessive tow bills for a cargo loss. Unfortunately the Northern District of Illinois held that it would not exercise jurisdiction over a complaint for declaratory judgement on whether the fees were reasonable. The court held that under West Virginia law, the Public Service Commission is statutorily vested with the authority to remedy the dispute and dismissed the complaint. AGCS Marine Ins. Co. v. Bill Warner & Son Towing & Recovery, 2019 WL 2169180
The Court of Appeals of Ohio addressed the evidence needed to show that a prima facie claim for recovery was established by the claimant. The motor carrier disputed that the claimant had met its obligation. It is an interesting issue that comes up over and over again when the cargo is used machinery. The court held that the burden was not met for some of the machinery when there was only evidence that the machine was operational at a time well before pick up. Downtime Rebuild, LLC v. Trinity Logistics, Inc., 2019 WL 2128447
Greyhound was unable to sustain its burden of establishing that it properly limited its liability for a cargo loss. The Appellate Term in New York held that there was no evidence that there was a written agreement between the parties agreeing to the limitation. Jones v. Greyhound Express Port Authority. 2019 WL 2148470
A broker was unable to force the parties into arbitration to determine liability for a cargo loss. The Northern District in Illinois refused to allow the broker to rely on a broker carrier agreement which was not entered into until after the loss. The contract did not state that is applied to prior shipments and therefore was not applicable to the claim at issue. Austin Freight Systems, Inc. v. West Wind Logistics, Inc., 2019 WL 2088056
Does one party bear responsibility for failing to declare a value for a shipment which is later lost in transit? The Superior Court in Pennsylvania, after vacating a default entered against a shipper, concluded that the shipper was entitled to summary judgment in an action commenced by the consignee for the transit loss. The court held that the shipper’s arrangement of the transportation was only for the convenience of the consignee and therefore did not give rise to a claim. The shipper did not have a legal duty to obtain insurance on the consignee’s behalf. Even if it did, the court held that the failure to obtain insurance did not cause the harm. Cannon v. The Racing Engines, 2019 WL 1896511
Auto
Most defendants will try to get out of an action commenced in Philadelphia County in Pennsylvania. The Superior Court in Pennsylvania held that it was not an error to consider a revenue report generated by the motor carrier to show that it did not have substantial revenue from the state. The court held it was a trustworthy report. Brown v. Auborn, 2019 2027221
The Court of Appeals in Michigan determined that plaintiff failed to assert any fact which showed gross negligence on the part of a truck driver when the driver’s vehicle struck the plaintiff’s vehicle. The court held that establishing that the defendant violated the vehicle code only created a rebuttable presumption of negligence and that the CDL manual does not contain enforceable rules, the violation of which would be negligent per se. Nothing to support gross negligence was alleged. Kano v. Jacobson, 2019 WL 2235497
Where should the action be heard? The Supreme Court in Alabama refused to order the transfer of truck accident suit to a different venue, one where the accident occurred. In this case the court held that the carrier has failed to show that in the interest of justice and under the guise of forum non convenience the case should be transferred to another venue. Ex Parte Tyson Chicken, 2019 WL 2240147
A judgment in excess of 3 million was upheld against a shipper who improperly loaded a coal truck resulting in an overturn and serious injury to the plaintiff whose vehicle was buried under the coal. The court agreed that there was no evidence that the truck driver was at fault, therefore no reason to apportion the percentage of fault. Infinity Energy, Inc. v. Billy Henson, 2019 WL 2246607
An insurer’s payment for property damage which reduces the amount available for personal injury claims does not make the tortfeasor under insured under North Carolina law. The plaintiff was unable to recover UIM payments from his own insurer as the motor carrier was properly insured for 1 million in total coverage. Berkley Regional Insurance Co. v. Bernick-Odom, 2019 WL 2236064
The District Court in New Mexico agreed to stay a civil trial pending resolution of criminal proceedings against a truck driver arising from a hit and run accident. The court held that plaintiff could continue with certain discovery and that it would then revisit the potential for punitive damages against the driver. Yazzie v. Fezatte, 2019 WL 1865204
Can you force all parties involved in an accident to be part of a lawsuit and assert claims against each other? The Southern District in Ohio concluded that a trucking company could not compel a defendant, the driver who struck the truck, to file a counter-claim, nor could the defendant compel other injured parties to join the suit. Only the truck driver could be joined as a necessary party, since the truck driver had asserted claims against the defendant. Danny Herman Trucking v. Boulware, 2019 WL 1055822
When a broker was granted summary judgment on the pleadings in an action seeking damages from a truck accident the District Court in Nevada held that the broker was not entitled to attorney’s fees and costs based upon a previously filed and rejected offer of judgment. The court held that the broker failed to establish that the rejection of the offer was unreasonable when the damages were high and there were arguments which might have impacted the preemptive effect of FAAA. Miller v. CH Robinson, 2019 WL 1903389
A truck driver was not successful in recovering for future damages after his foot was run over by the shipper’s fork lift when an employee was attempting to shift a load. The Southern District in West Virginia also held that there was insufficient evidence to support a claim for punitive damages against the shipper. Billings v. Lowe’s Home Center, LLC 2019 WL 1869936
Does a motor carrier bear risk of direct liability for a rear end truck accident when it admits liability for the actions of the driver? The District Court in Arizona held that it could bear independent liability. In this case, however, the plaintiff could not support any factual allegations of negligent hiring, training or supervision against the motor carrier. The driver was held to be negligent per se for the rear end hit. However as there remained a disputed issue on causation plaintiff was not entitled to summary judgment. Contreras v. Brown, 2019 WL 1980837
According to the Middle District of Pennsylvania there were too many questions to permit summary judgment against a trucker in a suit seeking damages for a multi-party snowy accident. When two of the three parties claimed the truck driver was at fault the jury would get to decide the issue. With plaintiff’s agreement, however the court dismissed claims for punitive damages, negligent hiring and entrustment against the motor carrier. Barry v. Wheeler, 2019 WL 1922086
In another multi vehicle accident the Superior Court in Pennsylvania upheld the trial verdict that the accident was caused by the bus company. The court held that the trial court did not abuse its discretion in its exclusion of certain admissions by the truck driver or its denial of a mistrial, that the evidence was sufficient to support the jury’s punitive damages verdict, and that the bus defendants’ claim of error with respect to expert testimony was barred by waiver. Livingston v. Greyhound Lines, Inc. 2019 WL 1891130
The fight continues in an action pending in the Eastern District in Louisiana where the motor carrier claims that the plaintiffs’ intentionally caused the accident in order to seek recovery against the motor carrier. The court agreed to exclude some, but not all, of the defendant’s witnesses who would testify about the possible staging of the accident and would allow the plaintiffs to show that other complaints it filed resulted in settlements. The court also addressed the admissibility of video surveillance, past convictions of the plaintiffs and police reports. Thomas v. Chambers, 2019 WL 989236
A shipper seeking coverage under a motor carrier’s auto policy for injuries to a driver was denied relief. The Court of Appeals in Wisconsin agreed that the employment exclusion precluded any insurance coverage to shipper and that the insurer had no duty to defend or indemnify. Society Insurance v. Friedle, 2019 WL 1997284
What comes first in evaluating payment for a PIP claim, when there is a personal auto policy, a bob-tail policy and a trucker’s policy? The three insurers moved for summary disposition. The Court of Appeals in Michigan affirmed the trial court ruling that the personal automobile policy was not first and that the motor carrier’s policy, which did not specifically schedule the vehicle also did not apply, denying the argument of the bob-tail insurer that the vehicle should have been considered an after acquired vehicle under the motor carrier’s policy. The bob-tail insurer was left with the coverage. Youhanna v. Auto Club Insurance Association, 2019 WL 19824717
How extensive can a cell phone request be? The Western District of Oklahoma required production of cell phone records for the twenty-four (24) hours prior to the accident and two hours after the accident and that the records to be produced be limited to records containing incoming and outgoing call and text logs and logs of application use. The new discovery search is to see if there are issues with phone usage during rest time and times of operation to show a pattern of improper action. Kizer v. Starr Indemnity, 2019 WL 2017556
A motor carrier’s efforts to have allegations in a complaint dismissed failed in the Eastern District of North Carolina. While the motor carrier was successful in obtaining confirmation that punitive damages were sought against the driver and not the motor carrier it was unsuccessful in striking allegations concerning criminal proceedings and specific allegations on safety obligations. Williamson v. J.B. Hunt, 2019 WL 1995238
The Middle District of Pennsylvania only afforded partial relief to a trucking company, dismissing counts in a complaint which alleged causes of action for outrageous, wanton, reckless, or gross indifference to the safety of the plaintiff as the court determined that there was no distinction in causes of action for different forms of negligence. However the plaintiff was permitted to continue with causes of action for reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct, and punitive damages. White v. Tomasz, 2019 WL 2119982
The Northern District of Alabama partially denied a request for summary judgment by a truck driver following his accident with a bus in which a passenger was injured. The court held that there were genuine issues of material fact regarding negligence and causation, concluding that the passenger, who was working with the bus driver, could not be responsible for the actions of that driver. Moreover the fact that the defendant was successful in defending a claim by the bus company did not bar the plaintiff from litigating the issue. The court did dismiss the claims for wantonness, and negligent entrustment and supervision against the driver’s employer, a decision accepted by the plaintiff. Miles v. Celadon Group, 2019 WL 2206441
What claims can be brought in Pennsylvania following a truck accident. The Middle District of Pennsylvania held that claims of conduct which was outrageous, wanton, reckless, or done with gross indifference to the safety of the plaintiff would be dismissed because they were only negligence claims in other forms. The defendants’ motion to dismiss the causes of action alleging reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct, as well as the plaintiffs’ request for punitive damages, were denied. White v. Trybala, 2019 WL 2119982
The Superior Court in New Jersey held that Section 9.1 of the New Jersey Automobile Reparation Reform Act provides insurers, which have paid personal injury protection (PIP) benefits to their insured, with the statutory right to seek reimbursement against certain tortfeasors. If the tortfeasor is insured, the determination whether the insurer that paid the PIP benefits is entitled to recover those payments and the amount of the recovery is by agreement of the parties, and, if they are unable to agree, by arbitration. In this case the court held that the question of whether a party was actually a tortfeasor was also subject to arbitration. Liberty Mutual Ins. Co. v. Penske Truck Leasing, 2019 WL 2218939
The Southern District of Alabama granted summary judgment to a driver on a complaint which was filed late against the truck driver. The court held that lapse of nearly 12 months between the initial disclosure of the name of the driver and the motion for leave to amend established that plaintiff did not exercise reasonable diligence and move to amend within a reasonable time period as required under Alabama law. Figgers c. Carroll Fulmer Logistics Corp., 2019 WL 2163613
The District Court in Arizona held that an estate can recover future economic losses in a survival action where the decedent died immediately, and the claim for future loss of income was not too speculative. The court denied the motor carrier’s motion to dismiss those claims. The court also held that the plaintiffs were precluded from asserting any claim at trial premised on a theory of negligent hiring or negligent training or from seeking damages based upon the decedent’s pain and suffering or future wages asserted by his mother or wife as part of a wrongful death action as they were not the proper party to recover for those claims Manion v. Ameri-Can Freight Systems, Incorporated, 2019 WL 2184763
The Court of Appeals in Kentucky upheld summary judgment granted to a trucker’s insurer in a bad faith suit by an injured plaintiff. The court held that the insurer acted reasonably in not settling early in the case and even increasing reserves during discovery was not improper as new evidence was being learned which impacted the reserve. Corio v. National Specialty Insurance Co., 2019 WL 2157579
When there is a multiple vehicle accident a defendant, in this case the trucking company was permitted to bring a third party action against other parties who may have born some liability for the loss. The Eastern District of California held, however, that the trucker needed to only bring in parties who might be liable to the trucker, and not any just other possible claimants. Gonzalez v. JAG Trucking, 2019 WL 1994464
Thanks for joining us,
Jean & Chad
