Welcome to 2023!
As we start the new year, we at CAB would like to take the opportunity to wish a Happy New Year to all. We are very blessed to be able to work with so many great organizations that work to support the transportation industry every day of the year. We look forward to a great 2023 and continuing to work closely with each organization to help reach the opportunities and goals before all of us.
As quick reminder:
- Have a question about the data? Reach out.
- Do you or your organization need training? Let us know.
- Are you looking for an additional solution? We can help.
Feel free to reach out by phone (212.244.6575) or via our contact form here.
Have a great year!
Chad Krueger
CAB Live Training Sessions
Tuesday, January 10th, 12p EST
The topic is “The Power of Driver Data”. Sean Gardner will present on how to unlock driver information in the CAB system to improve risk assessment and provided additional value to motor carriers. Sean will cover how to unlock this valuable feature to get the most out of your CAB access.
Tuesday, January 17th,12p EST
Chad Krueger will update one of our most popular webinars, “CAB for Underwriting.” 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 non-underwriting users find this session very informative.
To register for the webinars, click here to sign into your CAB account. Then click live training at the top of the page to access the webinar registration.
You can explore all of our previously recorded live webinar sessions by visiting our webinar library.
Follow us on the CAB LinkedIn page and Facebook.
CAB’s Tips & Tricks: Why Does Accuracy Matter?
First, some breaking news: The week before Christmas, the FMCSA issued their Four Millionth DOT number! Bemma Transports has the honor of being issued DOT number 4,000,000. I still remember when the DOT hit 3,000,000. I wonder how different the industry will look when we get to 5,000,000. Looking forward to the journey!
Although post-Covid economic realities may have slightly cooled the issuance of new DOT numbers, almost 42,000 new DOT numbers were issued in the 4th quarter of 2022.
We all know that data matters. Data was driving decisions throughout history but even more so in the digital age we live in. In our business, data is essential, and in a world of tight profit margins and tough loss ratios, the accuracy and dependability of the data can make all the difference. We are continually provided with success stores from our users who relied on the precision and ease of use of the CAB data to make critical decisions. Very recently I was provided with an example of how CAB’s Chameleon detector, accurate scores, advanced projections, and other exclusive data aggregations allowed for a clear picture of a risk and saved the insurer from being on the policy during a nuclear verdict event.
It’s not enough to have a ‘close enough’ score. Much of the correlated risk inherent in a score is that it’s also used by the enforcement division of the FMCSA to take action. It is a data proven fact that a high ISS Score which is based on the Behavior Analysis and Safety Improvement Category scores (BASICs), results in increased inspection frequency and longer inspections which leads to delays, and correlates to higher frequency of Unsafe Driving (examples: speeding, dangerous driving, etc.) and HOS violations. All this results in a higher potential for a serious crash and increased likelihood of a nuclear verdict.
Rest assured your CAB team is working diligently to ensure you have timely, accurate, dependable data to provide the tools and resources to help you and your team “Make Better Decisions.”
THIS MONTH WE REPORT
Emergency exemptions: The Federal Motor Carrier Safety Administration is looking to amend regulations related to future emergency declarations, limiting their scope. Read more on CCJ | Read more on Overdrive
More proposed changes from the FMCSA: According to the Department of Transportation’s latest Significant Rulemaking Report, the Federal Motor Carrier Safety Administration (FMCSA) will pursue several rulemaking proposals in 2023, including speed limiters. Read more on CCJ
Independent contractor or employee? The Department of Labor’s proposal to re-define who’s who gathers more than 55,000 comments. Read more
Feeling safe next to that truck? Survey says more than half of passenger car drivers do not, but many think that technology can help change that perception. Read more
Safe Driver Week stats: Officers in Canada and the U.S. pulled over more than 35,000 commercial motor vehicles and passenger vehicles and issued 26,164 warnings and citations to commercial motor vehicle drivers and passenger vehicle drivers engaging in unsafe driving behaviors, ranging from speeding to distracted driving. Get the details
Nuclear verdicts: How spilled hot coffee 30 years ago changed the trucking industry. Freightwaves looks at the history of legal settlements and awards of over $10 million. Read more
Market Report: As demand for products to be transported rises, there have been increases year-over-year in the number of fleets reported on the US roads, number of CDL drivers per fleet, and overall mileage recorded. Read the Price Digests Market Report
The economy: Why the U.S. economy will avoid a recession, but freight will slow in 2023. Read more
January 2023 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.
AUTO
Rosario v. Northeast Truck Rental Leasing LLC & Earl A. Moore, 2022 N.Y. Misc. LEXIS 7114, Index No. 805590 (N.Y. Sup. Ct. Oct. 3, 2022). A personal injury complaint arising out of a motor vehicle accident was dismissed against one of the defendants under the Graves Amendment. The trial court found that the sole basis for the claims against the defendant were that it owned the subject vehicle involved in the Accident. The defendant submitted an affidavit, which was not refuted, establishing it had leased the vehicle to a non-party pursuant to an agreement and the vehicle was in good working order and free of mechanical defects at the time of the lease and that under the terms of the lease/rental agreement that the lessee was responsible for all maintenance during the term of the lease. Finding the defendant was a leasing company, the court held the Graves Amendment precluded the claims against the defendant.
Zajdel v. Exel, Inc., 2022 U.S. Dist. LEXIS 220615, C.A. No. 2:21-cv-12026 (E.D. Mich. Dec. 7, 2022). A motor carrier and its driver were granted summary judgment in a personal injury action due to the plaintiff’s comparative negligence. In the accident, the plaintiff ran into the rear axle of the trailer as the tractor-trailer was turning left out of a parking lot. The record established the plaintiff was driving 43 mph in a 35 mph zone at the time of the Accident, she never applied the brakes, and that the plaintiff had looked at her dashboard clock for two or three seconds prior to the collision. Considering this record, the court agreed that no reasonable juror could find the plaintiff was 50% or less at fault in causing the Accident. In so ruling, the court dismissed the plaintiff’s expert’s opinion, opining that the speed limit in the area of the Accident “should have been” 45 mph. The court also noted that another vehicle, which had been traveling next to plaintiff’s vehicle, was able to stop and avoid colliding with the tractor.
Saunders-Pinnock v. Colonial Freight Sys., 2022 Fla. App. LEXIS 8856, No. 3D21-1822 (Fla. Ct. App. Dec. 14, 2022). In a personal injury action arising from a hit-and-run, the claims against the trailer owner were dismissed. The plaintiff was only able to get the tag number of the trailer, but never identified the motor carrier or driver that was pulling the trailer at the time of the Accident. The trailer-owner submitted evidence establishing none of its drivers or tractors were in the vicinity of the Accident. Accordingly, its only connection with the Accident was the involvement of the trailer being pulled by an unidentified motor carrier. The court held this alone was insufficient to create liability for the trailer-owner, holding a trailer—standing alone—is not a dangerous instrumentality and therefore was insufficient to give rise to a vicarious liability claim against the trailer-owner premised upon the alleged negligence of the unidentified driver.
Wallace v. Ebaugh, 2022 U.S. Dist. LEXIS 225168, C.A. No. 2:20-cv-02062 (N.D. Ala. Dec. 14, 2022). Claims of wantonness and negligent entrustment/training/supervision were dismissed in a case involving a rear-end accident involving a tractor-trailer. The court found that the record was devoid of any evidence of neglect other than ordinary negligence and did not establish the tractor-trailer driver exhibited any conscious disregard for others’ safety. As for the negligent entrustment claim against the motor carrier, the court found the motor carrier failed to exercise that level of dominion or control over the tractor because it was subject to a lease purchase agreement with the driver. The court likewise rejected that the motor carrier allowing the driver to operate under its DOT authority would create a basis for a negligent entrustment cause of action. The court also found that the various violations on the driver’s record were insufficient to support a negligent hiring claim. However, the court rejected summary judgment on the plaintiff’s claimed damages for injuries to her lower back, finding there was sufficient evidence to submit that issue to the jury.
Yaple v. Jakel Trucking, LLC, 2022 U.S. Dist. LEXIS 224613, C.A. No. 21-2045 (D. Kan. Dec. 13, 2022). A motor carrier was granted summary judgment on a claim for punitive damages. The motor carrier hired a driver with no prior CDL experience, but who had recently received his Class A CDL from the State of Minnesota. Several months after the hire, the driver was operating a tractor and pulling an empty trailer when a deer ran in front of him. Attempting to avoid the deer, he swerved before locking up his brakes and then jackknifing the tractor-trailer resulting in it coming to rest across the roadway. The decedent hit the trailer as it was straddling the roadway. The decedent’s estate brought claims against the motor carrier based upon the driver’s alleged negligence and claims premised upon the motor carrier’s alleged negligent hiring, entrustment, and training. The evidence established the driver had performed a pre-trip inspection prior to disembarking, certifying the tractor and trailer met all requirements. However, it appears the ABS system had generated several fault codes prior to the Accident, but there was no conclusive evidence that the driver knew or should have known of the faults. Further, there was no evidence establishing the ABS failed or operated other than it was supposed to with respect to the Accident. Faced with this evidence, the court held the plaintiff failed to establish wantonness by the driver sufficient to support punitive damages. As for the punitive damages claim against the motor carrier, under applicable state law that claim may only be premised upon wanton conduct of the driver, and having established the driver was not wanton, this claim failed as a matter of law. The court did confirm the plaintiff could pursue compensatory damages premised upon this alleged direct negligence by the motor carrier.
Hanson v. Werner Enters., 2022 U.S. Dist. LEXIS 228808, C.A. No. 2:21-cv-00245 (E.D. Tex. Dec. 20, 2022). A motor carrier defeated a claim for negligent hiring. In so ruling, the court noted that the possession of a valid, unrestricted driver’s license is evidence of a driver’s competency absent any evidence to the contrary. The fact that the driver was a recent graduate from a truck driving school, possessed a valid CDL, and had no history of prior accidents, traffic convictions, moving violations, or criminal history was sufficient to defeat the negligent hiring claim. For the same reasons the motor carrier was entitled to summary judgment on the negligent retention and negligent entrustment claims. However, the court held there were fact issues precluding summary judgment on the negligent training and negligent supervision claims. The court further held there was no evidence of any action other than a failure-to-yield, and therefore the gross negligence claims against the driver and motor carrier were dismissed.
BROKER
No cases of note to report.
CARGO
Grothe v. Kushnivich, 2022 Wash. App. LEXIS 2308, No. 39010-1-III (Wash. Ct. App. Dec. 6, 2022). In this action arising from a damaged Volvo that was being shipped by a motor carrier from California to Washington, the Washington appellate court affirmed the dismissal of the Volvo-owner’s negligence claim against the motor carrier but reversed the denial of the Volvo-owner’s motion to amend its complaint to allege a Carmack claim alleging loss of use damages. The Volvo-owner’s insurer had previously paid to repair the Volvo and recovered the repair costs via subrogation action against the motor carrier’s liability insurer. However, the Volvo-owner separately filed a negligence action against the motor carrier alleging loss of use damages arising out of the same Accident. The appellate court affirmed the lower court’s ruling that the Carmack Amendment preempted any state tort/negligence action, and accordingly dismissed the Volvo-owner’s complaint. However, it found the trial court should have permitted the Volvo-owner to file an amended complaint, explaining Carmack’s damages for “actual loss or injury to the property” is determined by state law and under Washington state law “loss of use” and “diminished value” are both recoverable components of damages. The court, in ruling to allow the amended complaint alleging a Carmack claim, rejected that the Volvo-owner was required to file a pre-litigation claim, explaining the motor carrier had failed to issue a bill of lading or other document establishing a claim-filing deadline.
Addison Biological Laboratory, Inc. v. FedEx Freight, Inc., 2022 U.S. Dist. LEXIS 224146 (W.D. Mo. Dec. 13, 2022). A federal court dismissed negligence and breach of contract causes of action against an interstate motor carrier under Carmack preemption, but granted the plaintiff leave to file an amended complaint alleging a sole cause of action under the Carmack Amendment.
Skakov v. Black Bear Moving and Storage, 2022 U.S. Dist. LEXIS 222091, C.A. No. 21-cv-11412 (D. Mass. 2022). In this lawsuit arising from lost or damaged household goods, the court held that the Carmack Amendment did not preempt a cause of action under Massachusetts’ § 93A consumer protection statute alleged against the insurer for the motor carrier.
COVERAGE
Grubbs v. Assuranceamerica Ins. Co., 2022 U.S. Dist. LEXIS 213644, C.A. No. 2:22-cv-01024. An insurer was granted summary judgment in a personal injury action where the subject tractor-trailer was not listed on the policy. The insurer had been sued directly under Louisiana’s direct-action statute. However, only two personal autos were listed on the declarations page to the insurance policy at the time of the accident. The policy defined “insured car” as: a.) any car described on the Declarations Page; 2.) any car you acquire to replace a car described on the Declarations Page . . . 3.) any additional car, other than a replacement car, that you acquire during the policy period, but only if we insure all cars you own and you give us notice within 30 days of the date the car is acquired by you. Under these facts, the court held there was no basis for liability/coverage by the insurer and held it was entitled to be dismissed.
Pender v. Artisan & Truckers Cas. Co., 2022 Wisc. App. LEXIS 1101, App. No. 2021AP838 (Wisc. Ct. App. Dec. 6, 2022). The Wisconsin appellate court reversed the lower court’s grant of summary judgment in favor of a commercial auto liability insurer. The case centered on whether the insurer properly cancelled the policy and endorsements under state and federal law/regulations. The insurer had issued two separate Form E filings on the policy, both of which were rejected by the Wisconsin DOT for various reasons and thereafter “cancelled” by the insurer. It was undisputed the policy issued with a Form F endorsement attached to the policy, but that the insurer did not submit a Form K with the Wisconsin DOT when it cancelled the liability policy for nonpayment of premium, contending there was no valid filing (Form E) in place with the DOT to cancel. The trial court found the insurer attempted in “good faith” to comply with the cancellation statute and accordingly granted it summary judgment in its declaratory judgment action that the policy and endorsements were not in effect at the time of the accident. On appeal, the Court of Appeals, strictly construing the cancellation statute, found that it required the insurer to notify the Wisconsin DOT via Form K that it was cancelling the policy before the cancellation could take effect. The court rejected the cancellation of the two submitted Form Es was sufficient to meet the statutory requirement, which was specific that a Form K was required. It also found other facts issues precluded summary judgment in favor of the insurer and reversed the trial court.
Watts v. Pekin Ins., 2022 U.S. Dist. LEXIS 225463, C.A. No. 4:20-cv-01311 (M.D. Pa. Dec. 14, 2022). This insurance coverage/bad faith dispute focuses on choice of law principles when interpreting obligations under an insurance contract. The insureds purchased an automobile liability policy providing liability and underinsured motorist coverage. The policy was delivered in Indiana and the Declarations Page listed the insureds’ address as Indiana. At the time the policy was issued, the insureds resided in Indiana and the involved vehicle was located in Indiana. However, after the issuance of the policy, the insureds moved to Pennsylvania, but did not own any real estate, were not registered to vote in Pennsylvania, maintained their Indiana driver’s license, and the subject vehicle was still registered in Indiana. Prior to the Accident, the insured had notified an agent of the insurer she was planning to move to Pennsylvania. The Accident occurred in Pennsylvania. Under Indiana’s UIM law, the insurer could properly deny any UIM benefits to the plaintiffs/insureds whereas under Pennsylvania law the plaintiffs/insured would have been entitled to UIM benefits. The parties agreed that the insurance policy at least implicitly chose Indiana law as the law that governs the insurance policy. Thus, Indiana law would apply unless applying Indiana law would be contrary to Pennsylvania public policy, Pennsylvania has a materially greater interest than Indiana in determination of the particular issue, or Pennsylvania would be the applicable law absent the parties’ selection of Indiana as the choice of law. After first determining that Indiana had a strong public policy in favor of applying its insurance statutes, and that Pennsylvania had a materials greater interest in the controversy because the plaintiffs were residents of Pennsylvania at the time of the Accident, the court then turned to the third factor. Applying Pennsylvania’s choice of law principles, the court found Indiana law would apply even in the absence of the parties implicitly choosing Indiana law. It noted the policy was delivered/executed in Indiana, and that at the time of contracting the insured resided in Indiana and the vehicle was located in Indiana. The fact that the insurer was not notified the insureds had moved was largely determinative. The notice of a future intent to move provided to the insurer’s agent was insufficient. Thus, the policy’s implicit choice of Indiana law was enforceable. Applying Indiana law to the dispute, the court held the insurer rightfully rejected the insureds’ claims for UIM benefits and therefore dismissed the insureds’ breach of contract and bad faith action.
Nat’l Liab. & Fire Ins. Co. v. Riata Cattle Co., 2022 U.S. App. LEXIS 35328, C.A. No. 21-40846 (5th Cir. Dec. 21, 2022). The Fifth Circuit affirmed the lower court’s ruling that held a commercial auto liability insurer was not required to provide liability coverage for an action alleging personal injuries brought by an employee of the motor carrier arising from a motor vehicle accident while the employee was in the course and scope of his employment with the motor carrier. The court specifically rejected that the Form F endorsement on the policy negated the employee exclusions contained within the policy or otherwise created coverage for the employee’s alleged injuries. The court held that “[e]mployees are not considered members of the public for purposes of Form F.”
Hinsinger v. Conifer Ins. Co., 2022 U.S. Dist. LEXIS 228478, C.A. No. 20-14753 (D.N.J. Dec. 20, 2022). In this bad faith action arising from an insurance coverage dispute, the court agreed with the auto insurer that a tort claimant, as a third-party to the insurance contract, lacked standing to assert estoppel principles as it related to binding the insurer to coverage. However, the court found she could pursue her claim as an assignee of the insured’s rights under the policy. It then went on to hold there were sufficient factual allegations in the operative pleading to prevent dismissal of the assignee’s bad faith claims at the initial stage of the proceedings. Specifically, the pleading alleged the insurer should have been aware of the involved vehicle (that was not covered under the policy) prior to undertaking the defense under a reservation of rights by virtue of the insurer’s possession of body camera footage giving notice of the actual vehicle involved rather than the vehicle incorrectly identified in the notice of loss. Accordingly, the court declined to dismiss the bad faith claims.
WORKERS COMPENSATION
Kaur v. Jatt Friends, Inc., 2022 Pa. Commw. Unpub. LEXIS 519 (Pa. Commw. Dec. 1, 2022). In this workers compensation appeal, the Pennsylvania Commonwealth Court affirmed the Commission’s denial of workers compensation benefits to a decedent tractor-trailer driver. The driver had entered into an independent contractor agreement and lease agreement with a motor carrier. At the time of his death, the decedent was transporting a load of mushrooms on behalf of the motor carrier. The Commission, in ruling against benefits, noted that the decedent made various tax filings indicating he was self-employed and that the evidence adduced via testimony suggested the motor carrier did not exhibit or retain that level of control over the decedent’s work that would give rise to an employer-employee relationship. Other factors the Commission considered included: (1) that the decedent was paid by the job, load, percentage of load, or mile; (2) the decedent received no training from the motor carrier with regard to operation of the tractor-trailer; (3) there was no continuing relationship between the two; (4) the decedent could and did turn down loads; and (5) there were no set hours of work for the decedent. The appellate court rejected claimant’s attempts to rely upon a prohibition against double-brokering in the applicable shipping contract as sufficient to establish decedent as an employee of the motor carrier. The appellate court further held that under Pennsylvania’s six-factor employment test—the most important of which is the level of control over the manner of the work—there was substantial evidence to support the Commission’s finding that the decedent was an independent contractor.
