CAB Bits & Pieces August 2019

Good Day CAB Nation!

Summer is coming to an end and if you’re like many folks, final summer vacations are in the books, kids are heading back to school, and football season is on its way. We hope your month was fantastic and we look forward to what the remainder of the year has to bring.

In other CAB news: We are very excited to introduce you to our newest team member, Sean Gardner, who is joining us as our Senior Account Executive. Sean has been a frequent user of CAB over the past 12 years and brings a unique loss control perspective to our team due to his experience as an underwriter and a claims adjuster. His first job in the insurance industry was with CAB as an intern in 2005 and 2006 before branching out into other areas or the insurance business. Starting with his 10+ years as an Inland Marine Underwriter for some of the most recognizable insurance companies all the way through his time as claims adjuster, Sean knows what it takes to evaluate, correct, and monitor transportation risks to minimize loss and to truly understand the operations of a carrier. He will be reaching out to many of you in the coming months and is bringing many new ideas on the services provided to you by CAB. Sean will be attending the Motor Carrier Insurance Education Foundation (MCIEF) along with other CAB team members with me in early October. We look forward to introducing him (and in some cases re-introducing.)

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Have a great month!

CAB’s Tips & Tricks:

As we continue to add enhancements to the website, it’s important to remember that 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 data with more clarity.

This month’s enhancement is located on the Inspections/Accidents tab of the CAB Report®. Some of you may have already noticed that we’ve slightly changed the look of the Unit Summary section at the top of the page. We recently added the Time Spent Inspected area (yellow highlight). You’ll notice this example motor carrier shows 1 Day, 1 Hour & 37 minutes being inspected during the prior 12 months (green oval). Additionally, over the last 24 months (green oval) shows that the motor carrier was inspected 3 Days, 2 Hours and 34 Minutes.

Additionally, we’ve adjusted the arrangement of the data for the Units, License Numbers, Inspections by Vehicle Age and Unit Registration States. You can toggle between 12 Months, 24 Months or a Side By Side view (maroon arrow).

This data set has been provided to help users get an understanding of how much time a motor carrier is being inspected over 12 and 24 months periods. Depending on the number of units, CAB-BASIC Scores and ISS-CAB Values, radius and the like, this motor carrier could be spending an inordinate amount of time being inspected. It’s important to understand that the time listed only accounts for the time the Motor Carrier Enforcement Officer logs while doing an inspection. An inspection could last a few minutes to well over an hour. It does not account for the time waiting for a tire to be replaced, a driver to get the proper 10-hours of rest or any other Out of Service (OOS) violation.

Motor carriers with a relatively high number of inspected hours have could be at higher risk of driver injuries due to additional time spent entering and exiting the vehicle, cargo loss due to extended periods of non-movement and higher CAB-BASIC Scores & ISS-CAB Values that could result in additional enforcement including Compliance Reviews.

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:

FMCSA’s Crash Preventability Program Proposed to be Permanent-7 Additional Types of Crashes to be Included: Since August 2017, the FMCSA has reviewed 5600 Commercial Motor Vehicle (truck & bus) crashes and has found the 94% were determined to be not preventable by the motor carrier or commercial driver. In short, the agency stated that data drives their decisions and the demonstration program has resulted in the program becoming permanent. The agency’s plan includes improvement and expansion of the program. The program requires that a motor carrier submit compelling evidence that the crash was not preventable. Once a final determination is made, the agency would note the findings on the Safety Measurement System website. No crashes will be removed from the Crash Indicator BASIC. However, logged-in motor carriers viewing their own data will see an alternative percentile with the not preventable crashes removed. The 15 types of crashes that can be evaluated are as follows:

• Struck in rear;
• Legally stopped or parked;
• Suicides or suicide attempts;
• Wrong direction;
• Animal strikes;
• NEW: Driving under the influence;
• Infrastructure failure or struck by cargo, equipment, or debris;
• NEW: When the commercial motor vehicle (CMV) is struck on the side in the rear;
• NEW: When the CMV is struck by a vehicle that did not stop or slow in traffic;
• NEW: When the CMV is struck by a vehicle that failed to stop at a stop sign, red light, or a yield sign;
• NEW: When the CMV is struck by a vehicle making a U-turn or an illegal turn;
• NEW: When the CMV is struck by a driver who admits falling asleep or admits distracted driving;
• NEW: When the CMV is struck by a driver who experiences a medical issue which causes the crash;
• NEW: When the crash involved a driver under the influence, even if the CMV was struck by another vehicle involved in the crash and not by the individual under the influence;
• NEW: When the crash involved a driver in the wrong direction, even if the CMV was struck by another vehicle involved in the crash and not by the driver operating in the wrong direction.

Additional information on the Crash Preventability Determination Program Proposal can be found here.

CAB Calculates Motor Carriers Over or Under CAB-BASICs Thresholds: The first table shows the number of carriers in each power unit range with a percentile under or over the alert threshold in each BASIC category. The second table shows the percentage of carriers in each power unit range with a percentile over the alert threshold 1) out of carriers with a percentile, and 2) out of carriers with a relevant inspection. For the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Note that different CAB-BASICs and different types of carriers (i.e. regular, hazmat, passenger) have different thresholds. Percentiles are as of the snapshot date of July 26, 2019. A carrier’s number of power units is from the most recent carrier registration data we have for that carrier. Carriers with no or unknown number of power units are not included.

FMCSA Publishes Long Awaited Proposed Hours of Service Rules: The Agency has published a notice of proposed rulemaking (NPRM) on updates to hours of service (HOS) rules to increase safety and provide additional flexibility for commercial drivers. This proposal has been widely anticipated. The proposed rule on hours of service rule offers five key modifications to the existing HOS rules:

• Changing the short-haul exception available to certain commercial drivers by lengthening the drivers’ maximum on‑duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air miles to 150 air miles.
• Modifying the adverse driving conditions exception by extending by 2 hours the maximum window during which driving is permitted.
• Increasing flexibility for the 30-minute break rule by tying the break requirement to 8 hours of driving time without interruption for at least 30 minutes, and allowing the break to be satisfied by a driver using on duty, not driving status, rather than off duty.
• Modifying the sleeper-berth exception to allow drivers to split their required 10-hours off duty into two periods: one period of at least 7 consecutive hours in the sleeper berth and the other period of not less than 2 consecutive hours, either off duty or in the sleeper berth. Neither period would count against the driver’s 14‑hour driving window.
• Allowing one off-duty break of at least 30 minutes, but not more than 3 hours, that would pause a truck driver’s 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift.

Additional information and comments from U.S. Transportation Secretary Elaine L. Chao and FMCSA Administrator Raymond P. Martinez can be found here.

Cargo Thefts Drop 14% in 2^nd Quarter: There were 150 incidents with the average theft being roughly $153,000 for an estimated loss of $23 Million stolen in the U. S. & Canada. Over the first two quarters of 2019, trailer burglaries were the preferred method of theft, although fictitious pickups are on the rise as well. Food and beverages are the most common stolen items, followed by household items. The top three states for thefts were California, Florida and Texas.

FMCSA releases Drug & Alcohol Clearinghouse Query Plan: The agency announced the fee structure for motor carriers to purchase queries when the Drug & Alcohol Clearinghouse becomes accessible on January 6, 2020. A query, will be required by carriers to determine if current or prospective employees are prohibited from performing safety-sensitive functions, such as operating a commercial motor vehicle (CMV), due to unresolved DOT drug and alcohol violations. The query must be conducted by an employer or its designated consortia or third-party administrator.

There are two types of queries: 1.) Limited, which checks for the presence of information in the queried driver’s clearinghouse record and requires driver consent outside of the database; and 2.) Full, which discloses to employers and designated C/TPAs detailed information about any resolved or unresolved violations in a driver’s record and requires a driver clearinghouse account to provide the driver’s consent via the portal.

The agency charge will be a flat fee of $1.25 for every limited or full query and offer bundles depending on usage. However, bundles do not provide a discount unless an unlimited bundle plan for $24,500 is purchased. Queries are a required part of any pre-employment driver investigation for drivers and must be conducted at least annually for every driver. For additional information on the Query Plans, click here.

Commercial Auto Rates Expected to Continue to Rise: It was reported this month that commercial auto policy holders can expect ongoing price increases. This is due to U. S. Property & Casualty insurers continuing to reduce capacity due to heavy underwriting losses in the category. The segments combined ratio for 2018 was 108%, down from 111% in 2017. This results in commercial auto insurers expecting a ninth consecutive year of underwriting losses in 2019. This has resulted in 31 straight quarters of price increases, culminating in a nearly 9% increase in the first quarter of 2019.

FMCSA Proposes Unified Carrier Registration Fees for 2020 & 2021: The agency has proposed to reduce UCR fees for 2020 and then increase in 2021. The proposed fees for the 2020 registration year would be reduced below the 2018 registration fee level by roughly 13%. The proposed fees for the 2021 registration year would be reduced below the 2018 registration fee level by about 4%. The overall cost of UCR depends on the number of Commercial Motor Vehicles operated and would range from about $2 to $1,629 per company in 2019. A notice of proposed rulemaking can be viewed here.

CVSA Removes 1600+ Commercial Motor Vehicles from Roadways for Critical Brake Violations: On May 15, 2019, the Commercial Vehicle Safety Alliance’s (CVSA) law enforcement members conducted 10,358 commercial motor vehicle inspections focused on identifying brake system violations. This program was part of the CVSA’s unannounced Brake Safety Inspection Initiative. Of those inspections, 16.1% of vehicles had brake-related critical vehicle inspection items. Those 1,667 vehicles were placed out of service until the violations could be corrected.

• 55 jurisdictions participated – 45 U.S. states and territories and 10 Canadian provinces and territories.
• A total of 10,358 inspections were conducted.
• The U.S. conducted 8,738 commercial motor vehicle inspections; Canada conducted 1,620.
• 16.1% or 1,667 of commercial motor vehicles inspected were placed out of service for brake violations.
• In the U.S., 16.6% of commercial motor vehicles were placed out of service for brake violations.
• In Canada, 13.5% of commercial motor vehicles were placed out of service for brake violations.
• Nearly 84% of commercial motor vehicles inspected did not have any critical brake-related inspection item violations.

CVSA is holding another brake safety enforcement event this year, Brake Safety Week, which is scheduled for Sept. 15-21, at participating jurisdictions throughout North America. The week is an annual outreach and enforcement campaign designed to improve commercial motor vehicle brake safety.

FMCSA Revises Bus Lease, Interchange Regulations: The final rule has the following provisions: Revises the definition of lease to exclude carriers with FMCSA-issued operating authority that grant the use of their vehicles to each other; Removes the May 27, 2015, final rule’s marking requirements and reinstates the previous vehicle marking requirements with slight modifications; Revises the provision allowing a delay in the completion of a lease during certain emergencies; and Removes the requirement that motor carriers chartered for a trip who lease a commercial motor vehicle from another carrier to provide the transportation must notify the tour operator or group of passengers about the lease and the lessor. The compliance date to meet requirements for motor carriers is January 1, 2021. FMCSA said the ruling will ease regulatory concerns for about 8,400 bus companies comprising 547,000 trips per year. According to the FMCSA, about 75 percent of the carriers will experience regulatory relief and will no longer be subject to lease and interchange requirements of the 2015 final ruling. FMCSA estimates the ruling will create $8.3 million in regulatory cost savings. The rule can be reviewed and commented on here.

Interesting Tidbits:

$280 Million Jury Award for Semi, SUV Crash that Killed 5: On August 23^rd, a Muscogee Co., Georgia Jury awarded plaintiff Larry Madere over $280,000,000 in his wrongful death suit against Schnitzer Steel. The suit was filed after the fatal crash that occurred on Highway 80 in Alabama. The Schnitzer vehicle crossed the centerline and struck the vehicle Madere, his family & friends were riding in. The Prosecutor questioned if the driver fell asleep. The company had another serious crash in 2016 as well.

 

CASES

AUTO
A reminder to all claims folks that payments made by an insurer under a MCS-90 filing can be recovered from the motor carrier. The Middle District in Alabama granted a default judgment to an insurer for a payment made under the filing. The judgment was granted without even the necessity of a hearing on damages. Berkshire Hathaway Homestate v. Adams, 2019 WL 3418594

What can an Accident Reconstructionist testify too? The issues are often complex and so tied to the specific events of a loss. Interesting decision in the District Court in Arizona win which the court considered issues with respect to lighting, reaction time and whether the accident was avoidable. Manion v. Ameri-Can Freight Systems, Inc. 2019 WL 3858415

A motor carrier was successful in getting a claim for negligent infliction of emotional distress dismissed. The court dismissed that claim but all other claims, including a punitive damage claim, were permitted to continue. The Middle District in Pennsylvania held that the decedent’s fiancé could not assert the claim as she was not present at the time of the unfortunate accident. Jenson v. St. Louis, 2019 WL 3765426

A truck driver’s argument that since he was paid worker’s compensation benefits the truck driver who hit him could not assert an affirmative defense of comparative fault failed in the District Court in Oregon in his action for damages. The court also held that the defendant could assert the negligence of the co-employee driver who was operating the truck the plaintiff was riding in. Poe v. Cook, 2019 WL 3842376

Rejecting a settlement offer runs its own risks. The District Court in Florida helped a trucker, at least a bit, after the trucker failed to accept a settlement offer. The court held that the punitive damages portion of the final award could not be included in the trial court’s calculation of “judgment obtained,” for purposes of statute governing award of costs of investigation and attorney’s fees based upon rejected settlement proposal. The demand for settlement was made before any claim for punitive damages was asserted. Palmentere v. Copeland, 2019 WIL 3402802

Try as the defendants might the court in the Northern District of Oklahoma was unwilling to grant summary judgment to a trucker on claims of punitive damages and negligent entrustment. The court held that there were too many questions of fact to permit that to happen. Of note is the fact that the court agreed that Oklahoma law will permit direct claims of negligence even the motor carrier concedes vicarious liability. Cox v. Swift Transportation, 2019 WL 3719887.

In a related decision both parties were also denied sanctions against the other for alleged spoliation of evidence. The court held that neither plaintiff nor defendant intentionally failed to retain ECM and Qualcomm data or electronic driver logs. Cox v. Swift Transportation, 2049 WL 3573668

The same was not true in the Southern District of Mississippi where the court held that when an employer admits vicarious liability, direct negligence claims for negligent hiring, training, supervision, retention, and entrustment asserted against the employer merge with the plaintiff’s claims against the employee. The court dismissed all direct liability claims asserted against a motor carrier that conceded vicarious liability. Brown v. Morrison, 2019 WL 3720053

A motor carrier sought leave to amend its answer to a complaint seeking damages based upon a theory that the accident was a set up by the plaintiff and others. The Eastern District in Louisiana concluded that the motor carrier could amend to add a defense that the negligence of plaintiff or others was the sole and proximate cause of the accident by intentionally causing the collision, purposefully sideswiping the defendant with an improper lane change. The motor carrier could not, however amend to allege a claim for fraud. Williams v. United States Fire Insurance Co., 2019 WL 3842003

A win for the trucker! The Northern District in Illinois granted summary judgment to a motor carrier. The court held that the plaintiff failed to establish that he actually suffered damages following a small fender bender with the defendant’s truck. LeBlanc v. Mr. Bult’s, Inc., 2019 WL 3776957

One company’s effort to assert FAAA preemption for a truck accident failed in the Southern District of Ohio. The court held that the defendant motor carrier failed to act diligently to assert an affirmative defense of preemption in light of the fact that an earlier court decision made it a viable defense. Mosley v. Spartan Freight Systems, 2019 WL 3818760

Who covers the accident? Non-trucking and trucking insurers fought it out in the Western District in Kentucky. The court denied the summary judgement requests of both insurers concluding that it was unclear whether the truck driver was furthering the business of the motor carrier at the time of the accident in a truck stop. The court also refused to conclude that the driver was a statutory employee of the trucker at the time of the accident. Certain Underwriters at Lloyd’s v. Morrow, 2019 WIL 3558177

Whether defendant violated the clear distance rule or there was a sudden emergency was still a question of fact in a suit arising from two truck accident. The Western District of Pennsylvania concluded that these issues were subject to further litigation. The court also dismissed the direct negligence claims against the motor carrier who conceded vicarious liability, stating that a plaintiff may not bring a direct negligence claim against an employer, when plaintiff does not have a viable claim for punitive damages against the supervisor/employer defendant. Collins v. Tate, 2019 WL 3817570

Another decision arising from a lawsuit around a multi-vehicle truck accident in the Middle District of Pennsylvania. Did you know that the CAB inspection data will highlight when there are more than one commercial vehicles involved in an accident. The court held that one defendant was not entitled to dismissal of the complaint because his vehicle did not hit the plaintiff. The court held that the plaintiff asserted sufficient facts to allow for the possibility that the defendant’s actions were a contributing cause. Sutcliffe v. Bernese, 2019 WL3776560.

An employer was unable to convince the court in West Virginia that the truck driver employee was only a nominal defendant in a suit for personal injury damages. The fact that the employer admitted vicarious liability and was fully defending the driver did not remove his relevance from the suit. Back to state court it went. Justice v. Halliburton Energy Services, Inc., 2019 WL 3991067

When the insurer goes into receivership the insured can find it exposed to additional expenses. The Northern District of West Virginia held that the motor carrier was responsible for special masters fees which were incurred in resolving a multi-vehicle accident. While engaging the special master was agreed to by the insurer, it was in receivership and unable to pay the fee. It fell to the carrier. Spirit Commercial Auto RRG v. Shreve, 2019 WL 3947916

The fight over what defenses could be raised by the motor carrier in a suit seeking damages for personal injuries was decided in the Western District of Washington. The court held that ‘that all rights of way are relative and the duty to avoid accidents or collisions at street intersections rest upon both drivers” The motor carrier was entitled to assert the affirmative defense of contributory negligence of the plaintiff, but not anyone else. Waller v. Mann, 2019 WL 3996866.

And yet another suit involving a multi vehicle truck accident, this time in the Northern District in Illinois. This time the court denied a motion to dismiss filed against a rental company for negligent entrustment of the vehicle to a motor carrier with a poor safety record. The court held that there was enough evidence to potentially allow that claim to continue. Favorite v. Sakovski, 2019 WL 3857877

CARGO

Plaintiff’s claims for various state law damages arising from the loss of all of her household goods during a transit fire failed in the Southern District in Florida. The court held that all of plaintiff’s claims were preempted by Carmack. The plaintiff was given short leave to amend a complaint to assert a claim for loss arising out of the potential improper salvage goods Meyer v. Suitable Movers, 2019 WL 3457614

The carrier who subcontracted a load to another carrier was entitled to recover the invoice value of a shipment of beef which was not timely delivered. The Western District in Tennessee held that the plaintiff had shown that a delayed shipment of fresh beef would render the shipment valueless and subject the defendant to Carmack liability for the loss. Logistics Buddy Transportation v. VS Carriers, Inc., 2019 WL 3938485

Even in Carmack cases the defendant must obtain the consent of all defendants to remove the case to federal court. The Northern District in Texas remanded a case back to state court when one defendant failed to obtain consent from a second served defendant. Skyglass v. Partnership, LLC, 2019 WL 3819282

A default judgment was entered against a motor carrier in the District Court in New Jersey. While the court did give the plaintiff the value of the goods and prejudgment interest an unsupported claim for incidental damages was denied. Hanesbrans v. SCS Express, LLC 2019 U.S. Dist. LEXIS 133122

A consignee’s efforts to argue that a shipment was only intra-state and not subject to Carmack failed in the Eastern District of North Carolina. The court held that the fact that the goods might stop in a temporary warehouse or other staging facility does not transform the nature of the shipment from interstate to intrastate when the goods are destined for interstate transport. Moreover the consignee was bound by the arbitration clause in the shipper motor carrier contract. Mount Olive Pickle Co. v. Tidewater Transit Co., 2019 WL 3764608

When the state of Utah had nothing to do with transportation of goods from New York to Nevada, the plaintiff could not establish personal jurisdiction over one of the defendants who packed the cargo in New York and then transported it to Nevada. The District Court in Utah agreed that the plaintiff had to meet Carmack venue provisions, as well as establish the requisite personal jurisdiction. Calder v. Bay Shore Moving & Storage, 2019 WL 2430117

A truck broker was found liable as a motor carrier for the theft of a shipment of lobsters. The District Court in Massachusetts held that the broker acted as a carrier and therefore bore liability under the Carmack Amendment. The shipper did have to pay for other loads where payments had been withheld. Richwell Group v. Seneca Logistics Group. 2019 WL 3816890

WORKER’S COMPENSATION
An employer who does not subscribe to worker’s compensation is subject to a direct suit by an employee. While that is true, the court did conclude that the trucking company owed no duty to train or supervise a driver on the specific hazards associated with operating an end-dump truck in the vicinity of overheard electrical wires. Summary judgment went in favor of the motor carrier. Garcia v. MTZ Trucking, 2019 WL 3720620

Thanks for joining us,

Jean & Chad