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Bits & Pieces

Bits & PIeces August 2021

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I hate to admit it, but summer is coming to an end…

I hope everyone has had a great summer.  Many of us are sneaking in final vacations, some are sending kids off to college (we currently have 2), others are or have already sent kids back to grade school & high school.  This time of the year always reminds me that fall is not far away.  But first, we have a wonderful opportunity to enjoy Labor Day weekend.  

What is Labor Day and why do we celebrate it?

Labor Day is a time to pay tribute to American workers, and all of their many contributions and achievements through the years. Created by the labor movement in the late 19th century, Labor Day honors the men and women who fought tirelessly for workers’ rights, especially the eight-hour workday we have now.

Have a great Labor Day and see you next month!

CAB Live Training Sessions

Tuesday, September 14th @ 12p EST: Chad Krueger will present CAB for Underwriting. This is a popular session we’ve done in the past and is recommended for many CAB users. The session will be an overview of tools, resources, and enhancements. As the title suggests, it will be geared towards underwriting, although many of our other users find this session very informative. Click here to register.

Tuesday, July 21st @ 12p EST: We will present CAB List Training: Monitoring, Carrier Health & Summary Reports.  If you’re not using CAB List, you should be.  Usage of this tool is growing every day and allows users to monitor their clients and prospects to identify ways to reach out or take action to provide services and expertise.  Carrier Health can allow you to review your book and the Summary Reports will provide you a clearer picture of the risks you work with.  Click here to register.

CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

Follow us at CAB Linkedin Page  CAB Facebook Page

*HOT TOPIC!!!  Additional PDF Feature Added to Carrier Central Magnifying Glass.

As the screengrab below shows, we have added a new feature to the top bar when hovering over the magnifying glass in Carrier Central.  We had a number of customers reach out wanting a quick way to access and save the quick grab information, so we added a PDF option that allows a download with additional information, including Carrier Name, OOS Inspection Counts, and Insurance Policy Info.

As with similar enhancements, this was brought to us by our users.  We hope you find it a useful timesaver.

THIS MONTH WE REPORT:

FMCSA Issues Emergency Declaration Related to Hurricane Ida:  FMCSA has issued an Emergency Declaration for AL, AR, LA, MS, TN, TX in response to Hurricane Ida.  This grants temporary relief for drivers and carriers providing direct emergency response transporting supplies, goods, equipment, fuel, and persons.  For more information on the Emergency Declaration and what it means, click here.

More than 6,700 trucks, 2,000 drivers placed OOS during Roadcheck: Approximately 83.5% of more than 40,000 trucks inspected during the Commercial Vehicle Safety Alliance’s three-day International Roadcheck inspection blitz had no out-of-service violations, according to CVSA. Inspectors did, however, remove 6,710 commercial vehicles and 2,080 drivers from roadways – a 16.5% vehicle and 5.3% driver out-of-service rate – over the three-day period from May 4-6. Last year’s Roadcheck, held in late September,  had a vehicle out-of-service rate of 22.2% and a driver out-of-service rate of 5.3%. Inspectors primarily conducted the North American Standard Level I Inspection, a 37-step inspection process that involves a thorough inspection of the vehicle (including underneath the vehicle) and the driver. Inspectors performed 23,135 Level I Inspections and removed 5,048 vehicles (21.8%) and 1,200 (5.2%) drivers from roadways.    For more information, click here.

Brake adjustment a sneaky Top 5 truck out of service violation thanks to misdiagnosis and improper shop practices: They’re called automatic slack adjusters for a reason, and the manufacturers that make them want to keep it that way. Commercial Vehicle Safety Alliance (CVSA)’s annual Brake Safety Week was Aug. 22-28, placing additional emphasis on one of the leading causes of out of service violations and added pressure on fleets and technicians to get it right. Yet despite years of warnings, automatic slack adjusters (ASA) continue to be manually adjusted by technicians who may not know any better or who may be eager to get a truck out of the shop and back out on the road. “If a fleet is manually adjusting a slack adjuster regularly it can harm the longevity of the unit,” said Chris Christiansen, warranty/technical services coordinator, Accuride Corporation.  For additional information on this important topic, click here.

Data Management: Watch, coach & delete: Using data to fight off accident verdicts: Just last week, two trucking companies – AJD Business Services and Kahkashan Carrier Inc. of Canada – were hit with a $1 billion verdict in the 2017 wrongful death case of an 18-year-old in Florida, according to First Coast News. Since 2011, trucking verdicts over $10 million occur about every other month, said Rob Moseley, Founding Partner, Moseley Marcinak Law Group, speaking at the CCJ Symposium in Birmingham, Alabama. Technology creates data, and Moseley said carriers will be held accountable for knowing what the data says and reacting to it – even if you don’t. “Every time there’s another bell or whistle on the truck, there’s more data created,” he said, adding that data collection systems include the truck’s electronic control module (ECM), collision avoidance, roll stability, event recorders, and electronic log, among others. Moseley noted that on a recent accident investigation, he watched as an expert investigator plugged into seven different locations on the truck to retrieve data. To learn more about motor carrier data management, click here.

ATRI-Developed Assessment Tool Shows Promise for Identifying Safe, Younger Drivers: The American Transportation Research Institute released the results of the Phase 1 Beta Test of its Younger Driver Assessment Tool.  This is the second in a series of technical memoranda from ATRI exploring the potential for an assessment tool to identify the safest drivers among 18-20 year olds, a critical component of expanding interstate CDL eligibility to younger drivers.  Results from ATRI’s beta test show promise for the statistically validated assessment to differentiate safer drivers from less safe drivers.  ATRI’s beta test administered a comprehensive assessment battery to current commercial truck drivers.  Among the statistically significant findings, the drivers in the safest group based on their MVR and PSP data had the highest scores on Conscientiousness and Agreeableness, and the lowest scores on Experience-Seeking.  Additionally, drivers in the “less safe” group exhibited marginally greater sensitivity to conflict in the Multi-Source Interference Task, indicating difficulties with cognitive control.  For access to the full report please click here.

From CCJ Daily: Cargo theft recording firm warns of potential theft ring in East Tennessee: A tractor and 53-foot trailer were stolen from a truck stop in Meadowview, Virginia, on Aug. 3, while left unattended during a DOT break, according to a risk alert from cargo theft recording firm Sensitech. The tractor was located later that night in Kingsport, Tennessee, but there were no signs of the trailer until the Sensitech GPS device embedded in the trailer provided an updated location in Knoxville, Tennessee. Through coordinated efforts with the Knox County Sheriff’s Office and the Sensitech Emergency Response Team, the stolen trailer was found at a local truck stop, leading to the successful recovery of the cargo, which had a high product and resale value, Sensitech said. The firm believes the theft was carried out by an organized criminal group. Sensitech said the criminals target loads while unattended, then unhook the trailer and abandon the tractor. A second stolen tractor is used to transport the stolen trailer once unhooked.

Toughest states for brakes, other vehicle violations: While no true professional among owner-operators and drivers wants anything to do with the truck’s air brake system being in any way out of order, it’s also true that some states put more necessary focus on braking systems than do others during inspections. With the annual Brake Safety Week inspection event of the Commercial Vehicle Safety Alliance recently concluding, it’s a safe bet the states highlighted — our top 15 for brakes violation prioritization in vehicle inspections — will be up to their normal activities. For more information on this topic, click here.

CAB Calculates BASICs Over Threshold for the Trucking Industry: Do you ever wonder the number or percentage of motor carriers over or under the alert thresholds? CAB’s Data Scientist calculates these and other interesting data results regularly. For this case, the “Number of Carriers” 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 “Percentage of Carriers” table shows the percentage of carriers in each power unit range with a percentile over the alert threshold 1) out of the set of carriers who were assigned a percentile (w/pctile), and 2) out of the set of carriers who in the last two years had at least one relevant inspection (w/insp). Only a very small proportion of carriers fall in the first category and a somewhat larger minority in the second category (it varies by carrier size and BASIC). Note that for the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Also, note that different BASICs and different types of carriers have different thresholds. See the table on the right or the SMS website. Percentiles are as of the end of July, 2021. 

CASES

Commercial Auto

While a motor carrier was unsuccessful in obtaining summary judgment on all of the counts seeking damages arising from a truck accident in snowy icy weather, it was successful on the driver claims of wantonness and the carrier claims of negligent entrustment. Straight up negligence for the rear end hit remained a question of fact, said the Southern District of Alabama. Polk v. Bang, 2021 WL 3577962

The question of broker liability for truck accidents continues to be split throughout the country. This month the Southern District of West Virginia held that a claim of negligent selection was not preempted under federal law, allowing that claim to proceed against the broker. The court did dismiss the claim for vicarious liability, but not without careful weighing of facts which could have gone either way. Gilley v. C.H. Robinson, 2021 WL 3824686

Risk Retention Groups in Louisiana are not exempt from the Louisiana Direct Action Statute according to the Middle District of Louisiana. The court denied the motion to dismiss filed by the risk retention group, concluding that the LRRA preserves Louisiana’s “traditional role in protecting the public.”, and allows the state to provide plaintiffs a direct right of action against a risk retention group. Bouie v. JDV Freight Transport, 2021 WL 3744188

When a plaintiff alleged that a motor carrier had a duty of care which was higher than recognized in Illinois law, the complaint was subject to dismissal. The court also noted that when the motor carrier concedes liability for the actions of the driver, the plaintiff cannot maintain a direct claim against the motor carrier for negligent retention or negligent supervision Pruitt v. K&B Transportation, Inc., 2021 WL 3472503

The Southern District in Illinois agreed that a plaintiff could not sue the parent entity for an accident involving the truck of a subsidiary. The alleged wrong could not be traced to the parent through the conduit of its own personnel and management and the parent was not directly a participant in the wrong complained of. FedEx Corporation was dismissed, leaving only the subsidiary which employed the driver to address the suit. Abrahams v. FedEx Ground Package System, 2021 WL 3603470

The prior criminal acts of a truck driver were determined by the Southern District of New York not to be admissible in a personal injury action against the driver. The court agreed with the motor carrier that a conviction for an unrelated theft had no probative value in determining if the driver was negligent. Diallo v. Ruan Transportation Corp., 2021 WL 3222733

The District Court in Minnesota refused to transfer an insurance coverage declaratory judgement action to California, where the loss occurred. The insurer is seeking a declaration as to the applicability of the employee exclusion when the passenger in the truck was killed in an overturn. The court concluded that there was no need to move the case to California, where the tort case was proceeding, and that it would require a simultaneous litigation to proceed in the jurisdiction where the policy was issued. Great West Casualty Company v. Terra-Com Communications Corp. 2021 WL 3661501

Can the expert testify? The Eastern District of Texas concluded that plaintiff’s expert, Larry Cole, could testify about trucking industry safety standards and deviations from those standards, including a motor carrier’s duty “to identify what traffic was doing in front, beside, and behind him,” and “to predict the possibilities of what could happen when traffic ahead of him was slowing down.” The motion to strike or limit the testimony was declined in this two truck accident case. Britton v. Noll, 2021 WL 328723

Creating new companies after the accident does not always work to protect the company assets. The District Court in New Mexico agreed that the plaintiff could amend his complaint to pursue the new trucking companies created by the owners after a loss. The shareholders of both companies could not be added because the court agreed that they have no individual liability. Always look at the highlights on the CAB Report to see what additional exposure you might be taking on when there are related entities. Gutierrez v. UniTrans, LLC, 2021 WL 3710808

Can a motor carrier avoid the impact of the federal leasing regulations, which requires that it have exclusive possession and control over the vehicle, through a contract which makes the driver an independent contractor? The Western District of Kentucky held that there were factual questions on whether the driver should be considered an employee for the purposes of vicarious liability. “Where a lease complies with the applicable regulations, there is only a rebuttable presumption of agency”. While the motor carrier was able to get summary judgment on claims of negligent hiring and retention all other claims remained in play. Gonzalez v. Point Logistics, 2021 WL 3197039

The 11th Circuit upheld summary judgment which was granted to the motor carrier by the trial court for injuries stemming from a truck accident. The court held that the plaintiff, who entered the motor carrier’s lane of traffic, was negligent, which barred recovery to the plaintiff under Alabama law. The plaintiff could not point to any subsequent negligence on the part of the defendant to avoid the impact of the contributory negligence doctrine which precluded recovery. Walker v. Ergon Trucking, Inc., 2021 WL 3666595

Plaintiff’s argument that a jury verdict against a trucker was too small, $50K in past medicals and $1K for pain and suffering, was rejected by the Court of Appeals in the First Circuit in Louisiana. The court affirmed the denial of a judgment notwithstanding the verdict, concluding that the jury had the right to consider the facts and award that small verdict. Crawford v. Shelter General Insurance Co., 2021 WL 3185342

The 90 million dollar verdict against Werner Enterprises ,for an accident in which it did not appear that the truck driver did anything wrong, continues to wind its way through the legal system. The Court of Appeals decided, on its own, to have an en banc hearing rather than proceed with the earlier panel decision. Stay tuned. This is a case to watch. Werner Enterprises v. Blake, 2021 WL 3164005

Do you want to know about the lawsuit before it is served? Apparently sometimes you do. The Northern District of Texas agreed that a fatal truck accident could be removed even when the defendant carrier had a place of business in the state, provided it was done before the defendant was served with the suit. 28 U.S.C. Section 1441(b)(2) (which prohibits removal of a state court action if it was brought in the domiciled state of the defendant) does not preclude removal if the case is removed before the defendant is served. A technicality that should be remembered. Stevens v. Kimberly Clark Corporation, 2021 WL 3232423

The defense verdict in favor of a trucking company and its driver who rear ended the plaintiff’s tractor-trailer, injuring the plaintiff, was upheld in the Superior Court of Pennsylvania. The court held that the evidence, which included a dash cam, supported the conclusion that the plaintiff suddenly and unnecessarily braked on a high-speed highway and, consequently, was mostly responsible for the accident that occurred. Dooley v. Tate, 2021 WL 3163152

The Middle District of Florida held that the plaintiff could assert claims against various defendant manufacturers for causing a defective Detroit Diesel 4.0 radar and camera systems to enter the stream of commerce, resulting in plaintiff’s death. The defendant truck driver failed to ascertain that the plaintiff’s vehicle was stopped, with hazard lights operating, before striking the vehicle and killing the plaintiff. Nesbit v. Dayi, 2021 WL 3211209

The Southern District in Ohio agreed that evidence of the employee’s incompetent act, which gave rise rise to the underlying negligence claim, was not, by itself, sufficient to support a finding that an employer had actual or constructive knowledge of the incompetence prior to the accident. The court dismissed causes of action against a trucking company for negligent hiring and retention. The court also held that the plaintiff had a contractual right to pursue subrogation for payments it made to its insured under its no fault policy. Farm Bureau General Ins Co. of Michigan v. Schneider National Carriers, 2021 WL 3288090

Plaintiff was not entitled to summary judgment on its direct negligence claim against the defendant where the defendant made a u-turn in front of plaintiff causing plaintiff to strike the defendant’s vehicle. The Eastern District in Louisiana held that the defendants had established that a reasonable jury could infer that plaintiff was partially negligent and that his negligence contributed to the collision. The motor carrier provided evidence that the plaintiff was talking on the phone just before the collision and that the placement of his phone could have obscured his view of the defendant’s truck or otherwise distracted him from the road. Marcello v. Holland 2021 WL 3401203

It did not happen timely because why? Covid is generally the answer these days. The Western District of Texas held that a motor carrier was not entitled to summary judgment when service of the complaint was not completed within the statutory time limits. Covid struck the plaintiff’s counsel’s office which resulted in a failure of service being completed. That was a good excuse. Nichols v. Robinson, 2021 WL 3410315

Sometimes the stories in the cases are astounding. The Court of Appeals in Georgia upheld summary judgment in favor of a motor carrier. The court held that the evidence was plain and indisputable that the truck driver was not acting in the course and scope of his employment with the carrier when it had terminated its relationship with him and demanded return of the truck. Instead, the driver exited the tractor-trailer eighty miles away from his intended destination and ran into traffic resulting in a multi car collision which injured the plaintiff. Blake v. Tribe Express, 2021 WL 3578045

When the motor carrier judicially admitted that the driver was in the course and scope of his employment when the accident occurred direct claims against the motor carrier could not be sustained. The court held that if the driver was found to be negligent and at fault in the accident, the motor carrier’s negligence in hiring, training and supervision would be subsumed by the driver’s negligence and fault, and the motor carrier would be held vicariously liable for the employee’s fault. Contrarily, should he not be found negligent and at fault in the accident, then no amount of negligence on the part of the motor carrier for those acts could be the cause-in-fact or legal cause of the accident that occurred. Judgment for the motor carrier on those additional claims. Martin v. Thomas 2021 WL 3523559

A motor carrier was unsuccessful in seeking judgment that the plaintiff was negligent per se when she failed to move her vehicle from the roadway after an accident. She was subsequently rear ended and killed by the defendant’s tractor trailer. While it was undisputed that the vehicle was left in the roadway, it remained a question of fact as to whether the plaintiff could have reasonably moved the vehicle. Crechale v. Carroll Fulmer Logistics Corp., 2021 WL 3612472

The Eastern District of Louisiana determined that it was likely that a Louisiana state court would not allow an independent claim of negligence against a motor carrier who accepted vicarious liability for the actions of the driver. The independent claims against the motor carrier were dismissed. Johnson v. Lopez, 2021 WL 3637777

A rear end hit did not automatically result in liability to the motor carrier. The Southern District of New York determined that there was a question of fact when the defendant truck driver claimed that the plaintiff truck driver stopped short in front of him, limiting his ability to stop the rear end collision. Off to trial it goes. Torres v. Mamadou, 2021 WL 3692906

FAAA did not require dismissal of a tort claim against a truck broker for negligent hiring of a motor carrier. The Eastern District of Pennsylvania held that the state tort law applied to all businesses and therefore was not subject to preemption, even if it had a negative financial consequence on the broker. Perez v. Penske Logistics, LLC, 2021 WL 3661017

When an individual was injured while unloading a piece of heavy equipment off the trailer, the Court of Appeals held that it arose out of the use of a vehicle (the trailer) and was therefore subject to no-fault laws in Michigan. The trailer owner was granted summary judgment. Balsamo v. Corrigan Enterprises, Inc., 2021 WL 3700353

Cargo
It is not often that we hear about an actual trial on a cargo claim. This month the Middle District of Florida issued a long opinion following a 3 day bench trial on a cargo claim for a shipment of damaged beef. The court concluded that the motor carrier was not liable for the loss to the cargo when the cardboard containers tipped over inside the trailer. The court found that the shipper had not established a prima facie case under the Carmack Amendment because there is no evidence that the delivered beef was worthless, that the loss was caused by an act of the shipper, and that mitigation efforts were not reasonable. Good case for cargo adjusters to review. Congrats to my friends JW Taylor and Kristen Johnson whose firm won this for the motor carrier. Good job guys! Scotlynn USA Divisions, Inc. v, Titan Trans Corp., 2021 WL 3704087

The Northern District in Texas agreed that the Carmack Amendment preempted state law claims against trucking companies, except for claims for conversion of the shipment of cell phones. The same was not true for the intermediate air carrier as it was not yet clear that it provided services only with the ambit of the Carmack Amendment. National Union Fire Insurance Co. v. Bacarella Transportation, 2021 WL 3372263

I am not sure if I have seen this before. A motor carrier required a boat owner to sign a full release before it shipped a wooden boat which is believed was not road worthy. The Western District of Washington agreed that the release was a limitation of liability under the Carmack Amendment and dismissed the suit. Watson v. Moger, 2021 WL 3510426

When the broker carrier contract expressly waived the provisions of the Carmack Amendment the federal court lacked jurisdiction over the claim for cargo damages. The Southern District of Illinois remanded the case back to state court. While the contract provided that the right to recovery would be based upon the Carmack principles that was not enough to defeat the waiver in the contract. Eastern Express, Inc. v. Pete Rahn Construction Company, 2021 WL 3578731

When the truck broker had no relationship with the state of California, and the shipment did not pass through its venue, the Eastern District of California agreed that the broker should be dismissed from the suit for lack of jurisdiction. Stage Nine Design, LLC v. Rock-It Cargo USA, 2021 WL 3565310

Some cargo claims go on forever and involve so many different issues. The District Court in Massachusetts resolved only some of the issues this month. After the loss of a multi-million submarine the court held that the owner of the submarine was stopped to assert damages of more than 5 million after it repeatedly represented to everyone that the value was 5 million before the shipment. Even though the shipment was destined for Australia, the court held that the one year limitation for suits under COGSA was inapplicable to a domestic shipment when an ocean bill of lading was not issued, the evidence did not support that it was a though move and the domestic bill of lading did not reference COGSA. In addition, the claims asserted under state law against the trucker were preempted under Carmack, except for the indemnity claims asserted by the broker against the motor carrier. This long decision goes on to address the many questions of fact which continue to remain on insurance coverage and limitation of liability. I expect we will be reading more about this case down the line. Woods Hole Oceanographic Institution v ATS Specialized, Inc., 2021 WL 3727202

In a fight between a broker and its customer over freight charges and a cargo loss, the Court of Appeals in Utah agreed that the customer had no right to assert a claim for the cargo loss against the broker, that claims against the broker were preempted by FAAA and that the broker was entitled to collect its unpaid fees. The broker was entitled to judgment and was also entitled to recovery of attorney’s fees under its contract with its customer. Freight Management Group, Inc. v. Chemex, Inc., 2021 WL 3779591

Worker’s Compensation
The Second District in California held that the plaintiff was not entitled to a jury trial on a jurisdictional issue in a worker’s compensation case. The court held that whether the plaintiff was entitled to pursue the trucking directly because the trucking company did not have worker’s compensation insurance was a question of law. The court found that the trucker in fact provided the required worker’s compensation coverage. Hollingsworth v. Heavy Transport, Inc., 2021 WL 316564

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