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Bits & Pieces

CAB Bits & Pieces April 2022

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It has been quite a month at CAB! 

As many are away, Jean Gardner, our longtime leader and CEO retired as of last month.  Whereas we are sad to see her go, we are so very excited for her next chapter.  She looks forward to traveling and continuing her volunteer work.  In true Jean form, she also rescued a dog recently, so we know she will have plenty of excitement in her life! 

In additional exciting Jean news, she recently received the 2022 Inland Marine Underwriters Association (IMUA) Lifetime Achievement Award to a standing ovation at the IMUA Annual Conference in Savannah Georgia.  We are very excited for Jean, and we look forward to continuing the amazing leadership and example she has set for all of us. 

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In other news, we look forward to seeing many of you at the Motor Carrier Insurance Education Foundation (MCIEF), 2022 Western Conference in Phoenix, AZ.  Later this month May 19-22.  As in-person events become more available, we look forward to seeing many of you in the coming weeks and months. 

Have a great month! 

CAB Live Training Sessions 

Tuesday, May 10 @ 12p EST: Mike Sevret will present on Introduction to CAB: Flow and Navigation.   This is a great session for new users or folks looking for a refresher.  Mike will provide an overview of the basic flow and navigation of the overall CAB environment.  Don’t miss out on this opportunity to learn about this powerful CAB feature. Click here to register. 

Tuesday, May 17th @ 12p EST: We will be presenting on our recently released CAB Express Report.  The Express Report is currently on a trial period for specific users.  This new condensed report provides the most important motor carrier info in a single view and can be downloaded as a two-page document perfect for sharing.  Click here to register. 

Don’t forget, you can explore all of our previously recorded live webinar sessions on our website! 

Follow us at CAB Linkedin Page CAB Facebook Page 

CAB’s Tips & Tricks: Newly launched CAB Express Report 

The CAB Express report is a concise summary report that contains easy-to-read graphs, charts and tables that deliver the information you need to make quick data driven decisions.  It is available to selct users on a trial basis.  The CAB Express report downloads as a two-page PDF perfect for sharing.  No cost until the end of May. 

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The concise summary provided by the CAB Express report perfectly complements the in-depth analysis of the full CAB Report® to provide the best set of tools needed for the risk selection process. 

Access the CAB Express report directly by clicking on the new CAB Express report icon in the lower right corner of Carrier Central, or alternately, from the icon in the upper left of any full CAB Report® 

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THIS MONTH WE REPORT: 

FMCSA again plans to explore speed limiters for heavy-duty trucks: The Federal Motor Carrier Safety Administration on Wednesday (4/27/22) issued a notice of intent to proceed with a rulemaking that would require the use of speed limiters on heavy trucks. Yesterday’s action is the first step forward toward a potential speed-limiter requirement in almost six years, though the notice does not specify any specific maximum speed. The proposed rulemaking in 2016, a similar request for comment from the industry and the public, was different in that it sought comments on maximum speeds of 60, 65 and 68 miles per hour.  This latest notice of intent is a fact-finding and data-mining exercise, FMCSA said, that would aid the agency in potentially drafting a Supplemental Notice of Proposed Rulemaking.  For more information on this topic, click here

FMCSA Announces Call for Applications for the Truck Leasing Task Force: The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced the opening of applications for the Truck Leasing Task Force (TLTF), in consultation with the U.S. Department of Labor. The Task Force is an initiative mandated by the Bipartisan Infrastructure Law and a long-term effort of the Trucking Action Plan. As part of the Plan’s initiatives, the TLTF will evaluate the impacts of commercial motor vehicle (CMV) lease agreements and discuss best practices for future agreements.  For more information, click here

How far could the crash-liability chain for autonomous vehicles extend?: A panel at the Truckload Carriers Association’s Truckload 2022 conference convened to discuss and answer questions about who exactly would be the principal litigation target in crash involved possible future rigs piloted largely by automated systems. One panelist said anybody could be held liable, while another said that the question of liability could actually be less nuanced in the future with fully autonomous vehicles in use. Read more here.

There isn’t a shortage of truck drivers — they just don’t want to drive for mega carriers anymore: The widely reported “trucker shortage” could actually be a reallocation, said Jason Miller, associate professor of supply-chain management at Michigan State University. Miller said many drivers have either become owner operators or started working for smaller carriers, rather than work at a mega carrier. Read more here.

Biden nominates Hutcheson to lead FMCSA: President Joe Biden nominated Robin Hutcheson for Administrator of the Federal Motor Carrier Safety Administration (FMCSA) on April 6. If confirmed by the Senate, she’ll be the first FMCSA full-time administrator since Ray Martinez stepped down in October 2019. Read more here.

Truckers are filing coercion complaints with the feds at a record pace: Nearly 500 complaints of coercion had been filed by drivers with the FMCSA’s National Consumer Complaint Database by April 8. If the number of complaints continues to rise at this rate, 2022 will see the most complaints filed since 2016, when the FMSCA first started formally compiling them. If this trend continues, the total number of complaints is projected to be around 1,800, close to double the previous record of 966 in 2019. Read more here.

FMCSA coercion complaints April 2022 with trend and border 1

Just 3 years after 2019’s trucking bloodbath, another is on the way: Freightwaves suspects another downturn in the U.S. truckload market in the near future, possibly one as bad as 2019. The usual surge in outbound truckloads did not happen in March. In fact, shipment volumes were lower than normal.

outbound volume freightwaves

With an unprecedent number of fleets registered at this time, many of whom have not operated during a downturn, more bankruptcies may be coming. Read more here.

new fleets freightwave

Trucking conditions up in February but projected to turn negative in March: FTR’s Trucking Conditions Index (TCI) rose slightly in February despite the increase in fuel costs, thanks to strong freight rates and an improved freight demand. The TCI increased to 12.06 from January’s 11.46. However, the FTR noted that the record surge in diesel prices during March will likely send the TCI measure into negative territory for the first time since May 2020 once the data is finalized. Read more here.

TCI

April 2022 CAB Case Summaries

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

AUTO

Mata v. Argos USA, LLC, 2022 Tex. App. LEXIS 2639, C.A. No. 00089-CV (Tex. Ct. App. Apr. 22, 2022).  Summary judgment in favor of a shipper was upheld on appeal where the appellate court held the shipper was not subject to the FMCSRs because it was not acting as the motor carrier for the given shipment.  The shipper had worked with an independent freight broker, who hired the motor carrier involved in the accident.  All the vetting of the motor carrier was performed by the freight broker without input from the shipper.  The shipper provided no instructions to the motor carrier or its driver other than where to pick up/deliver the load.  The court held the FMCSRs only applied to a “motor carrier,” and as such, the alleged violation of the FMCSRs could not be the basis of liability for the shipper.  Similarly, the court held the Texas Transportation Code, which had adopted most of the FMCSRs, likewise could not create a basis of liability against the shipper.  Last, the court held there was no basis for liability under common law because there was no evidence of control over the motor carrier and its driver by the shipper.

Grant v. BJT Express, Inc., 2022 U.S. Dist. LEXIS 71069, C.A. No. 3:21-cv-2394 (N.D. Ohio Apr. 18, 2022).  Various motor carrier/broker defendants were granted partial judgment on the pleadings and the tort plaintiff’s claim for punitive damages was dismissed where, in the court’s view, the allegations of the complaint merely included conclusory allegations supporting the “conscious disregard” standard required for the award of punitive damages under Ohio law.  The court rejected the plaintiff’s argument that the allegations of the Complaint alleging violation of the FMCSRs and the Ohio CDL manual were sufficient to meet the conscious disregard standard. 

Jackson v. Arka Express, 2022 U.S. Dist. LEXIS 71063, C.A. No. 3:21-cv-2393 (N.D. Ohio Apr. 18, 2022).  In a companion case to the above-cited BJT Express case, the court granted defendant’s motion to dismiss the plaintiff’s negligence per se cause of action, finding that the alleged violation of the FMCSRs, standing alone, was insufficient to support a negligence per se cause of action. It cited numerous other decisions standing for this proposition.  The court also dismissed the punitive damages claim for the same reason expressed in the BJT Express ruling. 

Kozak v. Klikuszewski, 2022 U.S. Dist. LEXIS 72748, C.A. No. 4:21-cv-01609 (M.D. Pa. Apr. 20, 2018).  A motor carrier and driver’s motion to dismiss a punitive damages and recklessness claim was denied under the case authority interpreting the pleading standard in this jurisdiction.  The court reasoned that since the recklessness standard depended upon the state of mind, which was “initially unknowable” at the pleading stage, the court would allow the claims to survive the motion to dismiss.  Further, the court permitted the negligence per se claim premised upon purported violations of the FMCSRs to remain in the case, finding the plaintiffs had alleged enough factual information to survive the motion to dismiss.  However, the court also noted “more likely than not” the plaintiff’s case against the defendants would amount to nothing more than negligence, but it would not dismiss the claims at the pre-discovery phase. 

Hadder v. Dominguez, 2022 Cal. Super. LEXIS 6860, C.A. No. 21STCV38696 (Cal. Super. Ct. March 23, 2022).  A court denied defendant, Enterprise, a demurrer finding that while Enterprise could not be held liable as the owner of an auto under the Graves Amendment, the operative pleading nevertheless alleged negligent entrustment of the vehicle as an alternative theory of liability, which was premised upon Enterprise’s own alleged negligence and as such would not be foreclosed by the Graves Amendment.  

Davis v. G. Allen Equip. Corp., 2022 U.S. Dist. LEXIS 69609, C.A. No. 4:20-cv-49 (E.D.N.C. Apr. 15, 2022).  A motor carrier was granted summary judgment on claim for direct corporate negligence where it admitted its driver was working within the course and scope of his employment with the motor carrier at the time of the accident and thus it would be vicariously liable for his negligence.  The court concluded under North Carolina law, such admission precludes a tort plaintiff from maintaining a separate cause of action for negligent supervision, negligent retention, negligent training, negligent hiring, or negligent entrustment.  As for the punitive damages claim, the court explained North Carolina law prohibits the award of punitive damages premised solely on vicarious liability, but allows punitive damages if the corporation’s officers, directors, or managers participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.  Insofar as the tort plaintiff only alleged punitive damages against the motor carrier premised upon the vicarious liability of its driver, the court granted the carrier’s motion for summary judgment and dismissed the punitive damages claim.  However, the court did find sufficient grounds under the proffered evidence to allow the punitive damages claim against the driver to proceed to trial. 

Bure v. Distrib. Sols., Inc., 2022 U.S. Dist. LEXIS 67371, C.A. No. 4:21-cv-00234 (E.D. Mo. Apr. 12, 2022).  Shipper entitled to summary judgment on vicarious liability claims arising from a motor vehicle accident involving a tractor-trailer hauling the shipper’s product.  Under Missouri law, the court determined the driver was an independent contractor in relation to the shipper, and as such had no ability to control the driver, therefore there was no basis to hold the shipper liable under respondeat superior for the driver’s alleged negligence in relation to the motor vehicle accident.

Choo v. Virginia Transp. Corp., 2022 N.Y. App. Div. 2288 (N.Y. App. Div. Apr. 13, 2022).  Summary judgment in favor of motor carrier and its driver in personal injury action was affirmed on appeal.  The appellate court found the defendants presented evidence establishing the plaintiff was negligent as a matter of law when he failed to yield the right-of-way while attempting to merge in front of the tractor-trailer and that the plaintiff’s negligence was the sole proximate cause of the accident. 

Thayer v. Randy Marion Chevrolet Buick Cadillac, LLC, 2022 U.S. App. LEXIS 9957, C.A. No. 21-10744 (11th Cir. Apr. 13, 2022).  Summary judgment in favor of a car dealership under the Graves Amendment was affirmed on appeal.  The Eleventh Circuit found that all requirements for the Graves Amendment applied, including that the dealership who loaned a vehicle to the alleged-at fault driver while the driver’s vehicle was being repaired “rented” or “leased” the vehicle to the driver.  The court found the consideration forming the basis of the rental or lease was that the dealership only loaned a car when it performed repairs/maintenance upon the owner’s car, for which it charged for those services. 

Madrid v. Annett Holdings, Inc., 2022 U.S. Dist. LEXIS 62285, C.A. No. 1:21-cv-1173 (W.D. Tenn. Apr. 4, 2022).  The Tennessee federal court adopted the “majority position” and held that once an employer admits its employee was acting within the course and scope of his/her employment for the employee and therefore the employer would be vicariously liable for the employee’s negligence, the tort plaintiff may not maintain direct negligence causes of action against the employer for negligent hiring, training, retention, entrustment, etc.

Wilkoski v. B&T Express, Inc., 2022 U.S. Dist. LEXIS 51385, C.A. No. 18-1359 (W.D. Pa. Mar. 22, 2022).  Pennsylvania federal court ruled various “affiliated companies” to a motor carrier could not be liable under a joint venture theory of liability.  The involved tractor was owned by one of the affiliated companies and leased to the motor carrier under a written lease agreement.  The trailer was owned by a separate affiliated company and leased to the motor carrier under a written lease agreement.  There were common shareholders between the various business entities.  However, under the facts, the court found the elements for joint venture under state law were not met and the affiliated companies were entitled to dismissal of the claims against them. 

Patel v. YRC, Inc., 2022 U.S. Dist. LEXIS 51988, C.A. No. 21-cv-2253 (N.D. Ill. Mar. 23, 2022).  A motor carrier’s motion to dismiss negligent hiring, training, supervision, and retention causes of action was granted where the motor carrier admitted in its responsive pleading that the driver was operating within the course and scope of his employment with the motor carrier at the time of the accident such that the motor carrier could be held liable under respondeat superior for the driver’s negligence.  The court, however, reserved the right to amend its ruling should evidence be developed in discovery that called into question the motor carrier’s respondeat superior liability. 

Sanchez v. Robert Heath Trucking, 2022 Kan. App. Unpub. LEXIS 168, C.A. No. 123, 909 (Kan. Ct. App. Mar. 18, 2022).  The Kansas Court of Appeals affirmed the trial court’s grant of summary judgment to motor carrier defendant and its driver where the evidence established the decedent was a pedestrian in the middle of the interstate with THC and LSD in his system at the time of the accident and the evidence supported that the driver of the tractor-trailer could not have reasonably avoided the accident. 

BROKER

LaGrange v. Boone, 2022 La. App. LEXIS 552, C.A. No. 21-560 (La. Ct. App. Apr. 6, 2022).  Summary judgment in favor of freight broker in personal injury tort action arising from an accident was affirmed on appeal with the Louisiana appellate court finding the evidence established the alleged at-fault driver was not employed by the freight broker and therefore there was no basis for vicarious liability claims against the freight broker.  The court noted specifically that while the broker also held carrier authority, the evidence that included a broker-carrier agreement with the company transporting the cargo at the time of the accident established it operated solely as a freight broker in this particular transaction and there was no evidence that the freight broker employed or otherwise had control of the driver, did not pay the driver, and had no employment contract with the driver.  However, with respect to the negligent hiring claim against the broker, the Louisiana appellate court noted the jurisdictional split over the preemptive scope of FAAAA for these types of claims, ultimately finding the safety exception to FAAAA applied and the negligent hiring claim against the broker was therefore not preempted under FAAAA. 

Russ v. Ecklund Logistics, Inc., 2022 U.S. Dist. LEXIS 52314, C.A. No. 19-cv-2719 (D. Minn. Mar. 23, 2022).  A Minnesota federal court denied a tort plaintiff’s motion to amend her complaint to add a claim for punitive damages against a freight broker.  The court specifically found that the proposed amended allegations against the freight broker were merely conclusory and not sufficiently supported by the facts.  Further, the court found the plaintiff’s allegations did not amount to clear and convincing evidence, even if unrebutted, that the freight broker acted with deliberate indifference to a highly probable risk of harm as required to support a claim for punitive damages under applicable state law, and therefore the requested amendment would be futile insofar as it could not withstand a motion to dismiss.  However, the requested addition of a punitive damages charge against the motor carrier employer was permitted.

Aspen Am. Ins. Co. v. Landstar Ranger, 2022 U.S. Dist. LEXIS 49081, C.A. No. 3:21-cv-578 (M.D. Fla. Feb. 3, 2022).  Insurer who was required to cover cargo claim arising from stolen load of cargo sued freight broker who arranged for the transportation.  The insurer plaintiff argued the freight broker’s actions or inactions led to the load being given to a fraudulent motor carrier.  The court ruled against the insurer plaintiff, finding its claims were preempted by FAAAA.  The court rejected the insurer plaintiff’s argument that the safety exception to FAAAA preemption applied to escape the broad preemptive scope under FAAAA, noting most courts that have recognized the safety exception have done so in cases involving alleged personal injury not cargo loss or damage. 

CARGO

Tobias v. Smith, 2022 U.S. Dist. LEXIS 69475, C.A. No. 21-11736 (D. Mass. Apr. 15, 2022).  A pro se plaintiff’s complaint against the CEO of FedEx, which sought $200 billion in damages over a lost package was dismissed.  The court held it lacked personal jurisdiction over the defendant. The court also denied the plaintiff’s motion to amend the complaint, finding any amendment to be futile insofar as plaintiff’s state law causes of action were preempted by the Carmack Amendment.

Ahe v. 1-800-Pack-Rat, LLC, 2022 U.S. Dist. LEXIS 62931, C.A. No. 3:21-cv-2526 (N.D. Tex. Apr. 5, 2022).  Court granted interstate household goods carrier’s motion to dismiss various state law causes of action as preempted by the Carmack Amendment.  The plaintiff contracted with the carrier to provide a storage container for household goods, temporary storage of the loaded container, and ultimate transportation of the container from Alabama to Texas.  Evidently, while en route the lock on the container was removed and various personal items removed that were never recovered.  The plaintiffs filed suit against the carrier alleging breach of contract, common-law fraud, negligent misrepresentation, fraud by nondisclosure, conversion, violations of Texas Deceptive Practices Act, breach of duty of good faith, and breach of prompt payment statute.  After removal, the carrier moved to dismiss the state law causes of action as preempted by the Carmack Amendment.  The court agreed with the carrier, finding the Carmack Amendment applied because the contract was for interstate transport and preempted the breach of contract, common law fraud and negligent misrepresentation, fraud by non-disclosure, and conversion causes of action and dismissed those with prejudice.  With respect to the DTPA claim, the court acknowledged there was a narrow class of claims for unfair trade practices that would not be preempted by the Carmack Amendment, but that the plaintiff’s claims as currently pled did not fall within that narrow exception.  Accordingly, the court dismissed this claim without prejudice.  Similarly, the court found that the breach of duty of good faith and breach of the prompt payment statute arose from state statutes governing insurance, which fell outside of Carmack’s preemptive scope—these were also dismissed without prejudice.  Last, with respect to the claim for attorneys’ fees, the court held any attorneys’ fees related to the damage caused by the interstate shipment of goods would be preempted by the Carmack Amendment, but any claims for attorneys’ fees unrelated to the damage would not.  The claim for attorneys’ fees was accordingly dismissed without prejudice. The court granted the plaintiff 30 days to file an Amended Complaint alleging a Carmack Amendment claim and/or replead with additional factual support the other causes of action not preempted by the Carmack Amendment. 

EMCO Corp. v. Miller Transfer & Rigging Co., 2022 U.S. Dist. LEXIS 53592, C.A. No. 5:19-cv-2418 (N.D. Ohio Mar. 24, 2022).  In a cargo damage case arising from an export shipment from the United States to Austria, the court had to determine whether COGSA or the Carmack Amendment applied, and whether the plaintiff had made the requisite evidentiary showing entitling it to relief for the alleged cargo damage under the applicable liability regime.  The court first found that the Carmack Amendment applied, specifically noting there were separate bills of lading issued for various legs of the transport, the ocean bill of lading only referenced transport from the Port of Baltimore to the Port in Austria and did not reference any of the transport in the United States prior to arriving at the Port of Baltimore, and that the ocean bill of lading did not reference the “original pickup point of the cargo.”  Since the defendant in the case was only involved in one leg of the domestic transport ending in the Port of Baltimore and that the plaintiff failed to establish the goods were damaged upon arrival at the Port of Baltimore, it failed to establish a prima facie entitlement to damages under the Carmack Amendment. 

Law Office of Guy Levy v. Moishe’s Moving Sys., 2022 U.S. Dist. LEXIS 51542, C.A. No. 21-cv-1212 (S.D. Cal. Mar. 22, 2022).  A plaintiff’s lawsuit alleging twelve state law causes of action arising from purported loss of cargo shipped from New York to California was dismissed without prejudice on the basis of Carmack Amendment preemption, but the court granted the plaintiff leave to amend to add a Carmack Amendment claim. 

COVERAGE

West Bend Mut. Ins. Co. v. Vaughan’s Fetch, Inc., 2022 IL App. (5th) 210168-U, C.A. No. 5-21-0168 (Ill. App. Ct. Apr. 5, 2022).  Lower court’s grant of summary judgment in favor of injured tort plaintiff and against the insurer was reversed on appeal.  Multiple claims were filed against the insurance policy arising from a multi-vehicle accident.  The insurer filed an interpleader action seeking to deposit the $1 million liability limits under the policy into the court for distribution to the numerous claimants with competing claims.  One claimant filed a counterclaim to the interpleader, alleging that the insurance policy did not unambiguously limit the coverage available under the policy to $1 million per accident and argued that the claimants could “stack” limits resulting in greater than $1 million in liability limits available for the claims arising from the accident.  The at-issue policy covered a fleet of 34 vehicles and trailers and “informed the policyholder that the schedule of coverages and covered autos could be found in Item Two of the declarations.”  Section II of the Motor Carrier Coverage Form addressed liability coverage for covered autos and provided as follows:

Section II—Covered Autos Liability Coverage

A.        Coverage

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance, or use of a covered auto.

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 Covered Autos Liability Coverage shown in the Declarations. 

            The Declarations Page listed symbol 61 for “any auto” coverage and showed the limit of liability for Covered Autos is $1 million each accident.  The declarations page listed the same $1 million per accident limit next to each of the various autos specifically described on the Declarations Page.  On appeal, the Illinois appellate court found that the Limit of Liability provision unambiguously limited insurance coverage under the policy to $1 million per accident, regardless of the number of insureds or autos involved and when viewed in conjunction with the rest of the policy clearly limited the insurer’s coverage obligations to $1 million per accident.    

Penn-America Ins. Co. v. Tarango Trucking, LLC, 2022 U.S. App. LEXIS 8984, C.A. No. 21-10749 (5th Circ. Apr. 4, 2022).  The Fifth Circuit Court of Appeals reversed the trial court and held that an insurer had a duty to defend its insured in a case arising from a fatal accident occurring on the insured’s property.  The tort plaintiff drove a tractor-trailer assigned to him by his employer (not the insured) to the insured’s property where he parked the vehicle and began to inspect and offload the heavy equipment from the trailer.  The tort plaintiff unhitched the trailer and began to use a hydraulic lift, but while doing so, the tractor’s braking system failed and pinned the tort plaintiff between the tractor and the trailer resulting in fatal injuries.  The allegations against the insured included that it maintained a dangerous slope in the area where the accident occurred.  The insurer provided a defense to the insured pursuant to a reservation of rights but simultaneously filed a declaratory judgment action.  The insurance policy contained an exclusion for coverage for “bodily injury” or “property damage” arising out of the ownership, maintenance, or use by any person or entrustment to others, of any aircraft, auto, or watercraft.  The provision provided “use” includes operation and loading and unloading.  However, an exception to the exclusion included “parking an auto on, or on the ways next to, premises you own or rent provided the auto is not owned by or rented or loaned to you or the insured.”  While the court agreed that the auto exclusion applied, it also found the exception restored coverage and obligated the insurer to provide a defense to its insured in the personal injury lawsuit.  The court held it was premature to determine any duty to indemnify. 

McNamara v. Gov’t Employees Ins. Co., 2022 U.S. App. LEXIS 9090, C.A. No. 20-13251 (11th Cir. Apr. 5, 2022).  The Eleventh Circuit was asked to address whether a consent judgment between a tort plaintiff and an insured for an amount in excess of insurance coverage available under the insured’s insurance policy can form the basis of a third-party insurance bad faith claim under Florida law.  The court found that it could under numerous prior Florida authorities.  In so ruling, the court found this rule would not incentivize collusion because “a consent judgment will be enforced against the insurer only to the extent that the judgment itself is reasonable in amount and untainted by bad faith on the part of the insured.” 

Travelers Prop. Cas. Co. of Am. v. TT Club Mut. Ins. Ltd., 2022 U.S. Dist. LEXIS 60232, C.A. No. CV419-231 (S.D. Ga. Mar. 31, 2022).  In an insurance coverage priority dispute between insurers, the Georgia federal court reiterated a number of important rules for insurance contract interpretation under Georgia law.  This involved a personal injury lawsuit arising from a tractor-trailer accident on I-16 in Georgia and involving a tractor insured by Great West and an intermodal container insured by Travelers under two separate policies and by TT Club on a third-policy.  The personal injury lawsuits were settled at mediation for a combined total of $6 million, with $1 million coming from Great West and the remaining $5 million coming from TT Club and Travelers subject to their right to seek contribution from each other.  Travelers thereafter brought a declaratory judgment action seeking a determination of coverage and respective rights and obligations with respect to the $5 million settlement funding.  The court first held it lacked jurisdiction over Travelers petition for declaratory relief because Travelers had already paid out the settlement funds thereby rendering its request for declaratory judgment moot, though the court did have jurisdiction over TT Club’s counterclaim for contribution.  Next, the court addressed choice of law for interpretation of the various insurance policies.  As a court sitting in diversity, it applied Georgia’s substantive choice of law rules, which hold if the contract contains no choice of law then Georgia applies the rule of lex loci contractus (i.e. governed by the state where the contract was made).  However, “Georgia courts also adhere to a unique caveat to their choice of law rules, the presumption of identity rule” under which application of a foreign state’s laws is limited to a foreign state’s statutes or cases interpreting statutes.  Since the two Travelers policies were issued in Virginia, but Virginia had no statute addressing the issues, Georgia law applied to their interpretation.  With respect to the TT Club Policy, it included a choice of law provision providing that English law applied.  However, the court held Travelers was not bound by the choice of law provision in the TT Club policy because it was not a signatory to that contract.  As such, the TT Club policy was also interpreted pursuant to Georgia law.  Applying Georgia law to all three at-issue policies, the court then determined under the relevant insurance provisions one Travelers policy was primary, the other Travelers policy was excess, and the TT Club policy was primary and applied a pro-rata distribution of the $5 million settlement amount and defense costs incurred in defending the underlying tort action between the two primary policies.   

Mabin v. Artisan & Truckers Cas. Co., 2022 Wisc. App. LEXIS 244, Appeal No. 2021AP188 (Wis. Ct. App. Mar. 24, 2022).  Wisconsin Court of Appeals affirmed trial court’s grant of summary judgment to putative UM insurer under tort plaintiff’s personal auto policy, finding that the other vehicle (a tractor-trailer) was not “uninsured” because the MCS 90 endorsement obligated the insurer of the tractor-trailer to satisfy any judgment up the amount of the federal financial responsibility requirements.  Accordingly, the tort plaintiff could not obtain UM benefits under her personal lines policy. 

WORKERS COMPENSATION

Waziry v. All. Express, LLC, 2022 Pa. Commw. Unpub. LEXIS 130, C.A. No. 859 C.D. 2021 (Pa. Commw. Ct. Apr. 12, 2021).  In a workers’ compensation claim arising from injuries to a truck driver, the Pennsylvania court determined it had jurisdiction over the claim even though the accident occurred outside of the Commonwealth of Pennsylvania.  The court found that the driver logs established the driver began and ended his trips at the motor carrier’s Pennsylvania location and therefore the Pennsylvania terminal was the driver’s “home base.”  The driver’s driving assignments were provided to him at that location, he had to return his driving logs to the Pennsylvania terminal, the driver received his paychecks at the Pennsylvania terminal, and all maintenance upon the equipment was performed at that terminal.  From this, the court determined Pennsylvania had jurisdiction over the claim.   

SAIF Corp. v. Ward, 2022 Ore. LEXIS 214, C.A. No. SC S068179 (Or. Mar. 24, 2022).  A truck driver who leased a tractor from a trucking company under a written lease agreement that provided the driver could not use the truck to perform work on behalf of any other company was determined to be a “subject worker” entitled to workers compensation benefits from the trucking company under Oregon law. 

Cunningham v. Kroger Ltd. P’ship, 2022 Ky. App. 24, C.A. No. 2021-CA-0704 (Ky. Ct. App. Mar. 25, 2022).  The Kentucky Court of Appeals held that under Kentucky law, an “up-the-ladder employer” was entitled to rely upon the workers’ compensation exclusivity defense in defense of a civil lawsuit arising out of a work-related injury for which the employee obtained workers compensation benefits from a downstream employer.  The employee worked for a motor carrier and part of his responsibilities were delivering milk to Kroger locations.  He was injured when a dock door fell on him at one of the Kroger locations.  He filed for and was granted workers’ compensation benefits from the motor carrier.  He then sued Kroger in a civil lawsuit.  The trial court granted summary judgment to Kroger based upon workers’ compensation exclusivity.  Under the foregoing “up-the-ladder” rule, the appellate court affirmed summary judgment in favor of the Kroger. 

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