Happy Passover and Happy Easter!

Spring holidays are upon us, and we hope the pleasant weather arrives as well. 

The CAB team attended two of the industry’s top shows in March, the National Association of Mutual Insurance Carriers in Chicago, and the Mid-America Truck Show in Louisville. 

At MATS, we were invited to do a Pro Talk education session on March 30^th. We would like to thank MATS and our session sponsor for creating the opportunity to speak to a wonderful cross-section of the transportation industry. Chad Krueger’s presentation, “Leveraging Data to Build a Safer, More Profitable Fleet,” encouraged motor carriers to regularly access their safety data and take steps to address any potential issues. We provided steps for creating an action plan that helps drive a more profitable high-performance safety culture. Lastly, we covered the methodology changes proposed in the CSA Prioritization Preview to help folks be aware of the potential changes coming and how important it is to participate in the process, provide input and make your voice heard.

Thank you and have a great April!

Chad Krueger

CAB Live Training Sessions

Tuesday, April 11^th, 12p EST

Sean Gardner will present CAB List-Monitoring Motor Carriers, Verifying Carrier Health and Summary Reports. Learn how to best use CAB List to monitor your book of business. Set up triggered alerts, analyze the health of your motor carriers, and much more! If you’re looking to better understand the motor carrier you’re working with, this is a session you won’t want to miss.  

This session is also very popular for underwriters, producers, account executives, and account managers. Don’t miss out!

Tuesday, April 18^th, 12p EST

Mike Sevret will present CAB for Agents and Brokers. This session will focus on the various tools available for Agents & Brokers. Drive growth and save time. Learn about your customers and prospects to identify areas of improvement and opportunity. Use CAB data to change the conversation with markets, and advocate for motor carrier customers and prospects. This is a great session to get the most out of your CAB experience. 

To register for the webinars, click here to sign into your CAB account. Then click live training at the top of the page to access the webinar registration.

You can explore all of our previously recorded live webinar sessions by visiting our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks: What’s the difference between a Violation and a Citation?

We frequently get asked, especially when folks are reviewing detailed inspection reports in CAB, what’s the difference between a violation and a citation? 

In general terms, a violation constitutes a regulatory violation. An example would be Federal Motor Carrier Safety Regulation (FMCSR) 392.2, Applicable Operating Rules. Falling within that would be speeding violations. A driver could be given a violation for a 392.2 “Speeding 15 or more mph over the speed limit”, but not given a citation. A violation will appear in the Motor Carrier’s CAB data and the Driver’s Pre-Employment Screening (PSP) Report. However, a “citation,” or more commonly a “ticket” would be something that would show up on your driving record and include points on your license and a fine. 

The bottom line is drivers who get violations will not always get citations that you will be able to find if you run an MVR. Folks often assume that if a driver gets pulled over for going 15 mph or more over the limit (Speed 4), they will automatically get a citation (ticket). The fact is, based on data for the past 24 months, that is the case 42% of the time. Seatbelt violations, 46% of the time. Speed 2 (6-10 MPH over) 19% of the time. Reckless Driving, 50% of the time. 

Why is this? Ultimately, it’s the police officer’s discretion to issue a citation, or not. This is why it is particularly important to dig into the available CAB data to make sure you are getting a clearer picture of the motor carrier.  When it comes to understanding driver safety behavior, it is prudent to look well beyond driver MVRs to ensure you’re getting the full picture.   

For more information on Pre-Employment Screening Program (PSP) and Motor Vehicle Records (MVR), click here. 

THIS MONTH WE REPORT

Be sure you’re heard! There is still plenty of time to submit your comments and feedback to the FMCSA’s CSA carrier Safety Measurement System revamp initiative. Opened for comments February 15, all submissions are due by May 16, 2023. Learn all about the proposed changes from CCJ editor Matt Cole in his recent review. You can also review the formal proposed change document and comment on proposed changes

Regulation: Feds side with Owner Operators, nix ELD. Overdrive reports FMCSA recently denied TIA’s request to remove transparency regs and revokes a non-compliant ELD. Learn why 

House Bill seeks Increased performance and safety. Looking to reveal improvements in safety and shipping capacity for trucking companies, the new bill provides recruitment and retention incentives for drivers and includes flexibility during times of emergencies or black swan events. Get fresh insight into the Bill and its intentions from Jason Cannon, CCJ chief editor. Read it here 

Denuclearization imminent. The American Trucking Associations (ATA) is applauding Florida for enacting House Bill 837, which amounts to comprehensive legislation to reform the civil litigation system. Thetrucker.com offers keen insight into the bill passed March 24. 

Citation and violation. Troopers bust trucker with open laptop on his wheel. Read it and weep in Overdrive’s alarming report

Multi-tasking to disaster. A recent Overdrive pole reveals that although drivers understand the risks using devices while driving, 10% admit to at least some screen time while operating commercial vehicles. 

Free food and drinks at shipper’s and insurers expense. Cargo theft is on the rise with food and beverage haulers the hardest hit. MSNBC reports this concerning trend

Hey 18, not so fast. Knight-Swift CEO thinks the last thing the industry needs is drivers under 21. Find out why Knight-Swift President and CEO David Jackson thinks it’s a horrific idea

Reading between the lines. Whether it’s a toe problem or a camber problem, or drive axle misalignment, it’s likely to show up in your tires. Want to know how to read the patterns like a pro? Find out how to read your tires’ deepest secrets here

Good press from the Atlanta Journal-Constitution. Despite the media coverage, driver’s clock millions of crash-free miles every year. Here’s the good news

Best Fleets To Drive For winners announced. Truckload Carriers Association (TCA) and CarriersEdge recently announced the two winners of it’s annual “Best Fleets To Drive For” award in this latest dispatch from CDL Life. Read it here 

April 2023 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Paul v. Western Express, Inc., 2023 WL 2618386, C.A. No. 6:20-cv-51 (W.D. Va. Mar. 23, 2023). In this personal injury action arising from a motor vehicle accident, the court denied several motions for summary judgment, finding fact issues precluded deciding the issues as a matter of law. At the time of the Accident, the weather had swapped from a light rain to a heavy downpour. Due to traffic or weather, several vehicles stopped on the roadway. There were differing versions of the sequence of impacts, but it was undisputed a tractor-trailer, using cruise control set at 65 mph (under speed limit of 70 mph), came upon the stopped vehicles but was unable to avoid a collision with the stopped vehicles, some of which had already run into each other. The motor carrier moved for summary judgment on contributory negligence by one of the plaintiffs, which the court denied, and in so doing, rejected the motor carrier’s argument that either no one was negligent, or everyone was negligent. The court noted that the same considerations for the operator of the tractor-trailer (i.e., braking distance) might not apply to the plaintiff, as the operator of a passenger auto. Moreover, it was disputed factually whether the same weather conditions were present at the time of the respective collisions. As such, the court found there was an insufficient basis to rule as a matter of law that the plaintiff was contributorily negligent. The motor carrier and its driver likewise moved for summary judgment on the punitive damage claims alleged against each. The court also denied these motions, finding that the driver’s use of cruise control in rain, despite training to the contrary, and admitted impaired visibility, was sufficient evidence of willful and wanton conduct to at least submit the punitive damages issue to the jury. 

Susan P. McNamee—Miller et al. v. HMD Trucking, Inc. et al., 2023 WL 2445608, C.A. No. 2:22-cv-3389 (S.D. Ohio Mar. 10, 2023). The court, in ruling in favor of a motor carrier’s motion to dismiss, affirmed under Ohio law that where a motor carrier admits a driver was within the course and scope of his employment with the motor carrier at the time of the alleged negligent act, which is sufficient to make the motor carrier vicariously liable for the driver’s negligence, a tort plaintiff may not separately maintain a direct negligence cause of action against the motor carrier. 

Muslar v. Hall, 2023 WL 2249959, Case No. 2022-02128 (N.Y. App. Div. Feb. 28, 2023). In this appeal, the appellate court reversed the trial court’s dismissal of claims under the Graves Amendment. Specifically, the appellate court noted that the operative complaint alleged the owners/lessors of the involved Freightliner failed to provide a vehicle free of defects to the lessee. The court noted the owners/lessors of the Freightliner put forward no admissible evidence refuting the allegations of improper maintenance or provision of an unsafe vehicle. The court specifically noted the Graves Amendment does not extend protection against failure to maintain claims. 

McDaniel v. Dindy, 2023 WL 2646702, C.A. No. 2:21-cv-00441 (Tex. Ct. App. Mar. 23, 2023). In this appeal, the Texas intermediate appellate court affirmed the lower court’s grant of a JNOV, which denied recovery of punitive damages to the tort plaintiff from the motor carrier employer. The tort plaintiff was injured when a dolly dislodged from the rear of a tractor-trailer rig. The evidence at trial established the driver was aware he was required to secure the dolly, was trained on how to properly secure the dolly, and was aware that the failure to secure the dolly would put other motorists at risk. The jury ultimately determined the driver did not properly secure the dolly, resulting in it becoming dislodged while the tractor-trailer was underway and leading to the collision with the tort plaintiff. Even assuming the driver was negligent or grossly negligent, however, the court found this was insufficient to support a punitive damages award against the company. The court explained corporations are liable for punitive damages only when the act or omission is that of the corporation, not its ordinary agents or servants, or in other circumstances where the corporation authorizes or ratifies the act, employs an unfit agent, or a managerial agent commits the act within the course and scope of employment. The court found there was insufficient evidence to sustain a punitive damages award under any of these scenarios, and accordingly, the trial court properly granted the motor carrier JNOV on the punitive damages claim against it. However, the court found the trial court properly denied the JNOV with respect to the gross negligence and punitive damages award against the driver, finding there was sufficient evidence from which the jury could determine grossly negligent conduct. 

BROKER

Total Quality Logistics, LLC v. Trade Link Capital, Inc., 2023 WL 2394789, No. 3D22-579 (Fl. Dist. Ct. App. Mar. 8, 2023). The Florida intermediate appellate court held a forum selection clause in a broker-shipper agreement (the “Agreement”) requiring all disputes be brought in Ohio was valid and enforceable, and accordingly ordered dismissal of the action pending in Florida. The court noted the Agreement contained a provision providing “Clermont County, Ohio ‘shall be the exclusive venue with respect to any claim, counterclaim or dispute arising in connection with any transaction, loads, or other business between Total Quality Logistics and applicant.’” When a load of the plaintiff’s goods was lost and/or stolen in transit, the plaintiff thereafter sued Total Quality Logistics in an eight-count complaint in Florida state court including various state law causes of action (breach of agreement to insure, fraudulent misrepresentation) and raising a Carmack Amendment claim. Total Quality Logistics moved to dismiss the lawsuit based on improper forum and that it was not liable, as a freight broker, under the Carmack Amendment.  In response, plaintiffs argued the forum selection clause in the Agreement was unenforceable insofar as the Carmack Amendment has its own venue rule and it was further unenforceable on public policy grounds on the basis that Total Quality Logistics offering insurance in connection with the transport amounted to unlicensed sale of insurance in violation of Florida state law. The appellate court first noted the forum selection clause appeared valid, enforceable, and mandatory, “on its face.” Because Florida presumes forum selection clauses are valid and enforceable, the party challenging enforcement of a forum selection clause must prove enforcement would be “unjust or unreasonable.” To meet the “unjust or unreasonable” requirement, the party challenging enforcement must show enforcement of the clause would result in “no forum at all.” The court found plaintiff failed its burden to establish enforcement of the forum selection clause meant shipper would have no forum at all in which to allege its claims. Further, the court found plaintiff failed its burden to establish Carmack, and its specific forum provision, applied to the shipment in question, at least with respect to the claims against Total Quality Logistics. 

Gemza v. Zhao et al., C.A. No. 1:21-cv-5049 (N.D.Ga. Mar. 1, 2023). In this personal injury lawsuit arising from a motor vehicle accident, the court dismissed all claims against the freight broker at the motion to dismiss stage. The broker argued all claims against it were preempted by the Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501(c)(1) (“FAAAA”). Further, it argued the complaint failed to sufficiently allege any viable claim against it under the federal notice pleading standard, the operative pleading represented impermissible “shotgun pleading” under Rules 8 and 10, and further the complaint failed to allege sufficient facts to sustain personal jurisdiction over the freight broker. The court, in an abbreviated order, acknowledged “[f]or the reasons set forth in the motion,” it lacked personal jurisdiction over the broker and that the operative complaint “fails to make out a plausible claim against [the broker].”  As such, it dismissed all claims against the broker.

CARGO

Travelers Property & Cas. Co. of America a/s/o Vacuum Indus., 2023 WL 2500174, C.A. No. 5:22-cv-1550 (N.D. Ohio Mar. 14, 2023). In this dispute arising from goods that were damaged while transported in interstate commerce, the court dismissed a breach of contract cause of action against the receiving motor carrier on the basis the motion to dismiss was unopposed and further, on the basis the breach of contract cause of action was preempted by the Carmack Amendment. The plaintiff’s insured hired A. Duie Pyle to transport goods from Michigan to New Hampshire. A. Duie Pyle, in turn, “subcontracted” the transportation to Dayton Freight Lines. In response to the damage, Plaintiff’s insured made a claim under its policy and plaintiff paid the claim in exchange for an assignment of rights. Plaintiff then sued A. Duie Pyle and Dayton Freight Lines alleging a claim under Carmack, as well as state law causes of action including breach of contract. A. Duie Pyle moved to dismiss the breach of contract claim as preempted by the Carmack Amendment. Finding that plaintiff failed to submit any opposition to A. Duie Pyle’s motion, the court found the breach of contract claim was abandoned, which alone provided sufficient basis to dismiss the claim. However, the court went further, analyzing the preemption argument, ultimately agreeing with A. Duie Pyle that “the Carmack Amendment completely preempts a shipper’s state common law and statutory causes of action.” Finding that the damages alleged by plaintiff arose out of loss or damage to property transported in interstate commerce, and the claim alleged “failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination,” Carmack preempted all non-Carmack causes of action, including the breach of contract cause of action.

COVERAGE

Schlumberger Tech. Corp. v. Carolina Cas. Ins. Co., 2023 WL 2240461, C.A. No. 22-40271 (5^th Cir. Feb. 27, 2023).  In this insurance coverage dispute, the Fifth Circuit reversed the lower trial court’s ruling and held the commercial auto liability policy did not provide coverage to an alleged “additional insured.” A tractor-trailer operated by Spotted Lakes, LLC, a motor carrier, was transporting sand on behalf of Schlumberger, another motor carrier. A separate Schlumberger tractor-trailer attempted a left-hand turn in front of the Spotted Lakes tractor-trailer. The Spotted Lakes tractor-trailer attempted to avoid the collision but could not and struck the Schlumberger tractor-trailer before continuing and striking two additional vehicles, including one in which the plaintiff was an occupant. The plaintiff filed suit against Schlumberger and its driver. Schlumberger filed a third-party complaint adding Spotted Lakes for claims of negligence and contribution, following which the plaintiff amended its complaint to add claims against Spotted Lakes and its driver. Schlumberger ultimately settled with the plaintiff for the claims alleged against Schlumberger and its driver. At the time of the Accident, Schlumberger and Spotted Lakes had in place a master transportation agreement with indemnity and insurance requirements in favor of Schlumberger. Carolina Casualty insured Spotted Lakes. Schlumberger filed a separate suit against Carolina Casualty, alleging Carolina Casualty should have defended and indemnified Schlumberger in connection with plaintiff’s claims and lawsuit and the settlement amount paid in the underlying tort action. The Carolina Casualty policy contained a blanket additional insured endorsement extending coverage to “any person or organization that requires you under an ‘insured contract’ to provide insurance . . . but only to the extent of your [Spotted Lakes’] negligence arising out of the ownership, maintenance, or use of a ‘covered auto.’” Schlumberger argued for coverage as an additional insured under the blanket additional insured endorsement, contending that because the plaintiff’s complaint alleged negligence by both Schlumberger and its driver, as well as Spotted Lakes and its driver, this was enough to trigger coverage under the endorsement. The trial court agreed, but the Fifth Circuit disagreed, finding that “the ‘Blanket Additional Insured Endorsement’ confers insured status on Schlumberger only with respect to claims premised on the negligence of the named insured, i.e., Spotted Lakes. Thus, because the only alleged negligence for which the [plaintiff] sought to hold Schlumberger financially responsible is its own and that of its employee,” the court found Schlumberger did not qualify as an additional insured under the Carolina Policy with respect to plaintiff’s claims.

Acuity, a Mutual Ins. Co. v. RRR Trucking, LLC, 2023 WL 2598028, 4:21-cv-1114 (E.D. Mo. Mar. 22, 2023). In this declaratory judgment action arising from a multiple vehicle/pedestrian accident, the court agreed with the insurer that its total liability in connection with the accident was limited to $1,000,000. A tractor-trailer operated by a motor carrier collided with several pedestrians and vehicles, which had stopped in the roadway due to a prior collision.  Numerous individuals alleged claims against the motor carrier and its insurer in connection with the Accident. Both the tractor and the trailer involved in the Accident were specifically scheduled on the policy, and separate premiums were charged for each. The insurance policy included provisions providing as follows:

C.        Limit of Insurance

Regardless of the number of covered autos, insureds, premiums paid, claims made or vehicles involved in the accident, the most we will pay for the total of all damages and covered pollution cost or expense combined, resulting from any one accident is the Limit of Insurance for Liability Coverage shown in the Declarations.

All bodily injury, property damage and covered pollution cost or expense resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one accident.

The Declarations Page further indicated the liability limit of insurance was $1,000,000, but evidently listed the $1,000,000 limit next to each specifically described auto, including separately the tractor and the trailer. The personal injury claimants argued the policy was ambiguous, and therefore the policy should provide $1,000,000 in coverage for both the tractor and the trailer, for a total of $2,000,000. Specifically, the personal injury claimants contended because the language used does not directly link the phrase “regardless of the number of covered autos” with “involved in the accident” then the individual liability limitation for both the tractor and the trailer found in Item Three of the Declarations pages should be available. That is, $1,000,000 for the tractor and $1,000,000 for the trailer for a total of $2,000,000. The court disagreed, finding no ambiguity existed. Relying on prior decisions interpreting similar provisions and/or addressing similar situations, the court explained the limit of liability language was clear in limiting the total coverage under the policy for any one accident, regardless of the involvement of multiple covered autos, to $1,000,000. Last, the court noted this result was reasonable given the differing premiums charged for the tractor versus the trailer.

WORKERS COMPENSATION

No cases of note to report.