The End is in Sight…We Hope…

We hope this finds you and your family safe and healthy. We at CAB, like many of you, are getting a bit stir-crazy. We would like to send our heartfelt sympathy to all of those with family, friends and/or co-workers affected by the COVID-19 pandemic. We send a special cheer to all of our truckers who are helping keep the country operating! You are truly our heroes. In the meantime, CAB is operating on all cylinders. We’re here to support you all in any way we can.

During this time we are excited to continue to innovate for our users! I’m happy to announce we’re in the final stages of development for our NEW COVID-19 Sidelined VIN Auditor, which will be introduced in our Tips & Tricks below.

Live Training Sessions

Our live training continues to have a great response from our users. Last month’s training on CAB List™ and Alerts had almost 600 attendees. This month we will present two new live trainings:

Tuesday, May 12th @ 12p EST: Mike Sevret will present Using CAB: Flow & Navigation. This will be an overview of Carrier Central and the CAB Report®. Perfect for newer users or current users looking for refresher or an update on enhancements.

Tuesday, May 19th @ 12p EST: Chad Krueger and Jay Weinberg (our resident IT Wizard) will provide focused training on our new Sidelined VIN application. This is a brand new tool that will allow users to quickly identify any events that take place for designated parked or laid-up vehicles on the policy. (Additional information can be found in our Tips & Tricks section below.)

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers 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 focused training topics that you would like 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: NEW Sidelined VIN Auditor

Due to COVID-19 and the resulting situation with the economy and certain aspects of the transportation industry, we have endeavoured to provide a solution to help our insurer partners address the issue of “sidelined vehicles”. Depending on the vernacular at your organization, these vehicles may also be referred to as “laid-up” or “parked” vehicles. A number of years ago our team of programmers developed our VIN Exceptions tool, which was created to audit VIN schedules. CAB’s Sidelined VIN Auditor uses similar programming to identify vehicles that have been inspected during the sidelined periods.

Long & short, insureds and agents are reaching out to insurers to sideline unneeded/unused vehicles in order to obtain some premium relief during COVID-19. Our Sidelined VIN Auditor allows insurers to audit those sidelined vehicles regularly to determine if the vehicles have had events during the sidelined period. By using the Sidelined VIN Auditor, a CAB user can verify the status of the sidelined vehicles and ensure proper premium is being applied.

In order to use the Sidelined VIN Auditor, you will need to download the template, insert the appropriate information (there are required and optional columns) and then upload the file. From there, the Sidelined VIN tool will return a report of any vehicles on the list that has had an event during the sidelined period. From there, users will be able to expand the data to review specifics that can be downloaded so appropriate steps can be taken by the organization.

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:

FMCSA Issues Notice of Proposed Rulemaking Concerning Drug & Alcohol “Push” Notifications: Issued on April 28, FMCSA called for a new “CMV driving ban” meant to increase compliance with current regulations and keep drivers with drug or alcohol offenses off the road until they have complied with return-to-duty requirements. Currently, most states are not aware when a CDL holder licensed in their State is prohibited from driving a CMV due to an alcohol or drug testing violation. Consequently, there is no Federal requirement that SDLAs take any action on the license of drivers subject to that prohibition. As a result, a driver can continue to hold a valid CLP or CDL, even while prohibited from operating a CMV under FMCSA’s drug and alcohol regulations. The proposed downgrade would align a driver’s CLP or CDL status with his or her CMV driving status under § 382.501(a), thus closing the current regulatory loophole that allows these CMV drivers to evade detection. Additionally, state licensing agencies may be required to query FMCSA’s Drug & Alcohol Clearinghouse prior to issuing a CLP or CDL. More information regarding the Notice of Proposed Rulemaking can be found here.

ATRI’s Truck Activity Index Details the Rise and Fall of Operations during COVID-19: From early February into March, the data shows a spike in initial truck activity in the analyzed states of CA, FL, IL, NY, PA & WA – documenting the response to high consumer demand for items such as non-perishable food and paper products, as well as the much-needed emergency medical supplies. The analysis further documents the impacts of the stay-at-home orders that shut down major segments of the economy, with a resulting decline in April trucking operations. Of the six states analyzed, California had the earliest stay-at-home order issued on March 19. California also experienced the earliest upward spike in truck activity, occurring during the week of March 1. However, truck activity in California is now down 8.3 percent from early February. In Florida, Illinois and New York, truck activity spiked the week of March 8 but is now down on average by over 10 percent from February 9. In Pennsylvania and Washington, truck activity spiked during the week of March 15, but is now down by an average of nearly nine percent from February 9. There are initial signs of a return to normal, however. In New York, one of the earliest states to experience high numbers of cases, truck activity started a positive uptick during the week of April 12.

Expanded Emergency Declaration Under 49 CFR § 390.23 No. 2020-002 (Relating to COVID-19): As of April 8th, the FMCSA has extended the emergency declaration through May 15, 2020. This declaration applies to all fifty States and the District of Columbia and was originally issued on March 8th, 2020. The extension continues the exemption granted from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSRs) for drivers and trucks providing direct assistance in support of emergency relief efforts related to COVID-19 outbreaks. The complete declaration can be found here.

FMCSA Issues Waiver of Knowledge Test Training for Certain 3rd Party Test Examiners: The agency has issued a waiver to allow third party CDL skills test examiners, temporarily without the need for additional training, to also administer CDL knowledge tests, to address testing availability concerns caused by licensing agency closures and staff shortages due to the ongoing coronavirus outbreak. This action, in combination with FMCA’s previously published CLP and CDL waivers, are intended to allow for individuals who are seeking to become professional drivers to complete the CDL credentialing process and assist the motor carrier industry during this time of need. Click here for more information.

CAB Calculates Total Crashes and Total 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 indicated at the top of the section. 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. Data is as of March 31, 2020.

How is the COVID-19 Economic Shutdown Affecting Inspections?: Our resident statistician has pulled together some very preliminary data that represents a very small period of time in the overall statistical environment…because inquiring minds want to know. As far as inspections are concerned nationwide, we’re seeing a ⅓ reduction from the previous March of 2019. Keep in mind that the Emergency Declaration referred to above, exempts many drivers and trucks from enforcement due to the type of load being transported. Digging a little deeper, if we break it down by inspection level, we see that Level I (full), II (walk-around), and III (driver-only) all had about the same percentage decrease (roughly 33%), while level V (vehicle-only) had only a 15% decrease. It should be noted that vehicle-only inspections makeup only around 3-4% of inspections nationwide, so they have a very small effect on the overall numbers. We will continue to monitor this data and report the results as more substantive data is gathered.

Federal Government to Distribute 800,000 Masks to Truck Drivers at 35 Locations: The Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA) and the Department of Transportation (DOT) are joining forces to distribute 800,000 masks at more than 35 locations throughout the nation. “Right now, professional drivers are busting their butts to care for the nation,” Todd Spencer, OOIDA’s CEO, wrote to Mr. Trump. “Their hard work and personal sacrifice should not include their health – or even their lives – if at all possible or preventable. We need a plan for them. We need help. Do it.” “Truckers are traveling around the country without access to masks, gloves, and hand sanitizer,” the Small Businesses in Trucking Coalition wrote. “With an operational budget of $665 million for fiscal year 2019, surely the FMCSA has funding available in its budget to make this a reality in accordance with the National Transportation Policy to keep the supply chain intact. America can do so much more for truckers than just #ThankATrucker.”

Motor Carrier Report Low Rates and Freight Fallout Worsens: Based on one survey from the middle of April, nearly half of carriers reported that freight levels had “decreased significantly” since the coronavirus-wrought economic shutdown. Another 35% said freight has decreased. Those numbers paint a much different picture than the survey results from the last week of March. These conditions have resulted in major financial strain, parked vehicles and layoffs in the industry. With no immediate end in sight, motor carriers will have to make tough decisions to maintain operations in the near term.

CASES

Auto

A trucking company which plaintiff claimed was involved in a hit and run was successful in having the action dismissed when the plaintiff could not prove that the defendant was operating the tractor at the time of the accident. The Court of Appeals in Tennessee held that when the plaintiff, while being deposed, could only claim that the motor carrier’s name was on the trailer, that was insufficient to support a claim against the motor carrier who routinely interchanged equipment with other carriers. Affainie v. Heartland Express Maintenance Services, 2020 WL 1549600

A win for the insurer in the 7th Circuit when the court held that the insured failed to obtain verification that an ambulance was reinstated on the policy before the accident. The court held that policy required more than notice before change took effect, and therefore it was not modified to include the ambulance subsequently involved in collision by insured’s notice to insurance agent to reinstate that vehicle. The court also held that the insurer could not be estopped from denying coverage for the ambulance on the basis that commercial motor carriers had to have liability coverage for their entire fleet when the vehicle weighed under 10,000 pounds. Markel Insurance Co. v. Rau, 2020 WL 1808872

Plaintiff’s suit arises from an fatal accident in which plaintiff hit an overturned trailer belonging to defendant. Defendant, in turn, brought a third party action against another trucking company which struck plaintiff from the rear. The Southern District in West Virginia dismissed the third party complaint concluding that under West Virginia law there was no basis for either a contribution or indemnity claim when the primary defendant was partially at fault for the accident. French v. XPO Logistics Freight, 2020 WL 1879472

An insurer’s request for summary judgment that its no-trucking use policy provided no coverage for an accident when the vehicle was under lease was granted in the Western District of Oklahoma. The court held that the policy was unambiguous. The court concluded that when the vehicle was leased to a motor carrier and the driver worked for the motor carrier there was no time that it was not being used by the carrier. Great West Casualty v. Fast Haul, Inc., 2020 WL 1814915

When the value of a personal injury action remains an issue the defendant cannot necessarily support removal of the action under the diversity statute, even when the plaintiff fails to take a position on damages. The District Court in South Carolina remanded the case back to state court, noting that the motor carrier could remove down the line if the evidence supported damages in excess of $75,000. Martinez v. Sarratt, 2020 WL 1892357

The same held true in the Southern District of New York where the court remanded the case after removal by the trucking company. The court concluded that the defendant had failed to establish that damages were in excess of the jurisdictional requirement when there was no specific allegation in the complaint. Barrett v. TP Trucking, 2020 U.S. Dist. LEXIS 65197

When the jury went outside the admitted evidence to calculate the damages the Court of Appeals in Iowa granted a new trial on damages. The court held that the viewed documents appeared to have provided a calculation that fell within the range of damages provided by one expert but conflicted with the damages calculated by the other expert. Although the jury could have reached the same verdict without consulting outside evidence, there is a reasonable probability that the documents influenced its verdict so back it went. Randall v. Ary, 2020 WL 1548492

The defendant was able to have the judge disqualified from its case in the Court of Appeals in Florida. The action arose from a fatal truck accident in which the truck driver was operating a hands free cell phone at the time.The trial judge’s multiple comments denigrating the carrier’s position regarding its cell phone policy created a fear in a reasonable person that the defendant would not receive a fair trial. Bias was found to exist. Publix Supermarkets, Inc. v. Monica, 2020 Fla. App. LEXIS 4918

An Interesting defense tactic was successful in the Northern District of Indiana. The defendant moved for a protective order precluding the plaintiff from questioning the truck driver by posing “Reptile Theory”, i.e. questions about the existence and purpose of safety rules during depositions. The court granted the motion, holding that asking those questions of the driver exceeded the permissible scope of discovery. Estate of McNamara v. Navar , 2020 U.S. Dist. LEXIS 70813

A plaintiff was not permitted to simply allege negligent hiring against the trucking company without specifying the factual basis for such a claim. The Eastern District of Texas granted the motion for a more definite statement. Diaz v. Kettley Trucking, Inc. 2020 U.S. Dist. LEXIS 60218

An insurer was not precluded from seeking a declaratory judgment with respect to its duty to defend or indemnify its insured under a non trucking use endorsement on a commercial auto policy and the request for reimbursement of defense costs incurred. The Northern District in California held that the claims were not subject to res judicata or collateral estoppel because they were not litigated in a state court action involving the parties. The issue of coverage and indemnity had not been specifically addressed by the state court. Canal Insurance Co. v. A&R Express Trucking, 2020 WL 1904464

The Southern District in Illinois refused to dismiss a declaratory judgment action filed by an insurer seeking a determination on whether it provided coverage for a truck accident. The court rejected the injured parties request that the court exercise its discretion and dismiss the action, forcing it back to state court where the personal injury action was being litigated. The court concluded that permitting the coverage action to proceed would help the parties determine the availability of insurance in order to resolve the suit. Artisan and Truckers Casualty Co. v. Neron, 2020 WL 1938892

The U.S. Government was unsuccessful in its attempt to get summary judgment in a suit arising from a collision between the plaintiff and a postal truck. The Southern District in Indiana held that there were question of fact as to who moved into whose lane at the time of the accident, precluding an early resolution of the matter. Hogan v. United States of America, 2020 WL 1905553

A motor carrier was granted a writ of mandamus directing the trial court to dismiss a personal injury action on the grounds of forum non conveniens. The Court of Appeals in Texas held that when the factors set forth in the applicable state law., section 71.051(b) favor the conclusion that an action would be more properly held in a forum outside Texas, the statute requires the trial court to grant motions requesting that it decline to exercise its jurisdiction. In re Ceva Ground, 2020 WL 1429929

The 8th Circuit has disagreed with some other courts, concluding the Carmack Amendment does not preclude a claim for personal injuries. Shipper’s employee brought negligence action in state court against carriers, seeking to recover damages for personal injuries he allegedly sustained when improperly loaded stack of cardboard boxes fell out of trailer and struck him, causing him to fall to ground and fracture his shoulder. The court held that the action could proceed. Fergin v. Westrock, 2020 WL 1778817

Over in the Central District of California the court remanded a case back to state court after it was removed by a truck broker. The suit arose out of a serious bus accident in which the bus hit a tractor-trailer hauling a shipment which had been brokered by the removing defendant. The court held that the defense of preemption asserted by the broker did not give rise to a basis for removal as ICCTA did not provide for complete preemption. Campos v. Benny Whitehead Logistics, 2020 WL 1486107

The Eastern District of Pennsylvania dismissed claims for punitive damages against a truck driver and his employee for a rear end hit into another tractor trailer, concluding that there was no factual allegations which would support such a claim. General allegations that a trucking company should have known of driver issues was insufficient to support the claim. The court also granted the defendants’ motion for a more definitive statement when plaintiff made conclusory allegations without factual support on his other causes of action. Carson v. Tucker, 2020 WL 1953655

A driver and his company were unsuccessful in obtaining dismissal of claims for recklessness and punitive damages following an incident where the driver drove over another driver standing in a loading zone. The Middle District in Pennsylvania held that there were sufficient allegations to support both claims, further holding that the motor carrier could be vicariously liable for a punitive damages claim against the driver. Molina v. Timmons, 2020 WL 1637895

When the plaintiff simply alleges general violations of federal safety regulations a claim of negligence per se was dismissed in the Eastern District of Missouri. The court also precluded the plaintiff’s expert from addressing whether the motor carrier has allowed for a sufficient stopping distance when the expert had no facts to support such a conclusion. Collins-Myers v. Triangle Trucking, Inc. 202 WL 1445703

The Second Division Appellate Court in Illinois upheld a grant of summary to an insurer on claims of breach of contract, unfair claims practices and consumer fraud following the defense of the motor carrier in a personal injury accident. . The fact that the insurer had an interest in creating favorable precedent that would be useful in other cases involving its insureds did not negate the fact that it was providing a full and vigorous defense . Good case to read to evaluate the steps taken in assessing defense strategy and keeping an insured advised along the way. Joseph T. Ryerson & Son, Inc. v. Travelers Indemnity Company of America, 2020 Il App (1st) 182491

Back and forth. Trucking company wins a defense verdict but then the court orders a new trial. On appeal the Second District in the Ohio Court of Appeals reversed and reinstated the jury verdict. The court held that the defendant’s use of demonstrative exhibits, including computer-generated images were not sufficiently prejudicial to warrant granting a new trial, because their exclusion would not have changed the result below. Shaneyfelt v. Byram, 2020 WL 1814854

The District Court in Illinois permitted a suit to proceed against a third party driver management company for injuries sustained by the plaintiffs following a truck accident. The company, which had already appeared in the suit to protect its workers compensation lien was, accordingly to the plaintiffs, possibly responsible for the actions of the driver. Despite the late effort to assert the claim, the court held that the defendant would not be prejudiced and discovery on the issue should proceed. Ramos v. Simon’s Trucking, 2020 WL1644026.

The Eastern District in Michigan denied a motor carrier’s request for summary judgment when the plaintiff ran into the back of the truck. The court held that there were arguments to be made on both sides as to who caused the loss and a rear-end hit was only a rebuttable presumption that the plaintiff was negligent. Of note – the court told both parties they could lose and sent the case off to a settlement conference. Fields v. Ashford, 2020 WL 1703876

The Court of Appeals in Texas gave limited relief to a motor carrier following a 2.8 million dollar verdict. The court rejected all of the defendants arguments, other than acknowledging that some of the damages, for a lumbar surgery, were high. Munoz v. Castillo 2020 WL 1856476. Plaintiff subsequently accepted the minimal reduction, keeping a verdict of more than 2 million in place. 2020 WL 1887807

Cargo

Whether claims are timely continues to be litigated. The Northern District in Texas denied summary judgment to a motor carrier who claimed that a proper claim had not been filed. The court held that the list provided by the plaintiff advised the carrier of a specific or determinable claim even though it only listed the original purchase cost of the allegedly damages items. It was enough to meet the claim requirement of a determinable or specific amount. Seinfeld v. Allied Van Lines, Inc. 2020 WL 1493662

An insurer was successful in obtaining a default judgment against a motor carrier in the Southern District of New York. The insurer, who was subrogated to the rights of another trucking company, was also given prejudgment interest. Federal Insurance Co. v. CLE Transportation, 2020 WL 1503455

It is not very often that we see decisions arising from specified peril policies. The Southern District in Mississippi refused judgment to the insurer who contended that the policy did not cover theft as a peril. The court, while dismissing the claim for punitive damages, held there were questions of fact as to whether the policy explicitly limited coverage to the designated perils when there were additional exclusions. Haymore v. Shelter General Ins. Co., 2020 WL 1536615

The Northern District in Ohio rejected a carrier’s request to dismiss an action against it for damage to cargo which it packed and transported to the pier. Upon delivery in Austria the damage was discovered by the plaintiff. The court held that simply because the cause of action was labeled breach of contract did not make it a state law claim, concluding that it was properly alleged as a claim under the Carmack Amendment. The court also held that the bill of lading did not have to be attached to the complaint for it to be a valid breach of contract action.. Emco Corp. v. Miller, 2020 WL 1915254

Removal of a Carmack case is both procedural and substantive. The District Court in South Carolina refused to remand a clear Carmack case back to state court when plaintiff raised questions on timeliness and consent of all parties. The court held that plaintiff’s early attempts at service did not start the clock running and technical failures on the part of the defendant to spell out consent of the co-defendants was not enough to send it back! Smith v. Kelso, 2020 WL 1887723

A truck broker was sued by a wrecker yard for the costs associated with the clean-up and storage of a shipment of paper. The District Court of Massachusetts held that the claims did not concern the transportation of property. The claim sought to recover for storage fees that accrued after the accident, when the shipment was no longer in transit to its final destination. Because these claims involve conduct that occurred “subsequent to ‘transportation,’ and not the transportation of property itself, there was no FAAAA preemption. The suit was allowed to proceed. Ted’s of Fayville v. Amekousse, 2020 WL 1694993

Follow the trail. Plaintiff hires one entity to transport freight. That defendant assigns the obligations to another, who then assigns it to a third company. The driver hit the bridge. Who is responsible? The Northern District of Ohio held that the plaintiff could pursue the middle company, on the theory that it was a third party beneficiary of the contract entered into to transport the freight. The motion to dismiss was denied. Noble Environmental, Inc. v. National Freight Logistics, Inc. 2020 WL 1451965

A claim for equitable indemnity would not stand against a truck broker in the Northern District of California. The claim arose from the failure to insure proper pre-cooling and transport of a shipment of pharma The court held that the broker was not a joint tortfeasor with the shipper and therefore the claim would not stand. Underwriters at Lloyds v. Abaxis, 2020 WL 1677341

Physical Damage

When is a vehicle acquired to start the time running for adding after acquired vehicles to the policy? That was the issue considered by the Court of Appeals in Oregon. The Court reversed the judgment in favor of the insurer, sending the case back for a determination of when the insured was entitled to possession of the vehicle. It was interesting to note that the court rejected the insurer’s claim that there was a relationship between the insured and the prior owner which it argued showed that it was an earlier acquired vehicle. Not so said the court, looking to the policy definition of insured. The close connection between the seller and the insured did not impact the time of acquisition. Ram Express, LLC v. Progressive Commercial Casualty Co., 303 Or. App. 211

Workers Compensation

The Appellate Division in New Jersey upheld a verdict rendered in favor of an insurer seeking additional premium. The audit revealed that a policyholder, a freight forwarder, had withheld material information about its operations and thereby underpaid its workers’ compensation premiums. After a non-jury trial, the Law Division judge ruled that the policyholder had violated the workers’ compensation fraud statute, N.J.S.A. 34:15-57.4. The court held that the freight forwarder was required to report and pay premium for the motor carriers who transported the consolidated freight. Fournier Trucking v. New Jersey Manufacturers Insurance Co., 2020 WL 1802840.

Thanks for joining us,

Jean & Chad