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Bits & Pieces

CAB BITS & PIECES JULY 2022

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The final stretch of summer.

August is normally seen as the last stretch of summer. We hope everyone gets at least one final opportunity to enjoy time with friends and family before school starts, fall sets in, and we get back to our non-summer schedules. 

As a quick follow-up reminder, as of last month, our Bits & Pieces is being delivered a few days later than normal. In order to ensure our newsletter does not get lost over weekends or holidays, we’re adjusting our delivery points. Do not worry, we will still be providing the great content and resources you’ve come to expect over the years.

Have a great August!

CAB Live Training Sessions

After taking the month of July off, we’re ready to get back into the swing of things. Our team has two great sessions that will take place during the August. Keep in mind, all our great training content is still available via our webinar page by clicking here.

Below is a peek at our live training sessions that will take place in August.

Tuesday, August 9th @ 12p EST: Mike Sevret will present on one of CAB’s most valuable tools, CAB List. Learn how to best use CAB List to monitor your book of business. Set up triggered alerts, analyze the health of your motor carriers, and more! Attendees will learn how to monitor CAB-BASIC Scores, ISS-CAB Values, crashes, violations, safety rating, filings and others. Do not miss out on this opportunity to learn about this powerful CAB feature. Click here to register.

Tuesday, August 16th @ 12p EST: Learn how to grow your business with SALEs Targeted Leads. The CAB team will teach you how to target companies within your specific appetite with over 100+ filters. Search by insurance renewals, fleet size, commodities, and many other options. This is a great session for newer and experienced users. Click here to register.

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: What’s in a number?

Occasionally, we get asked about the DOT number. How many are there? How many are active? How many are issued during a day, week, or month? What is the most recent DOT number issued? Would the FMCSA ever run out of DOT numbers? When does DOT information need to be updated? Hopefully, I will be able to answer a number of these questions below.

Active DOT Numbers? Currently, as I write this piece, there are 2,112,645 active DOT numbers.

What is the last DOT number issued? This is difficult to say as there are roughly 600-700 DOT numbers issued every day.  However, I can tell you that we are in the 3,926,xxx range.

The FMCSA will likely never run out of DOT numbers. It is interesting to note that the pace of issuing DOT numbers continues to pick up. It took eight years to get from 1,000,000 to 2,000,000, seven years from 2,000,000 to 3,000,000, and we’re anticipating 4,000,000 to be sometime in November which would put it at five and a half years.  Below is a quick graph of the count of DOT numbers that have been issued each month since January of 2016.

graph showing count of DOT numbers issued by month.

DOT numbers are also used to identify when motor carriers are required to update their carrier census or MCS-150 information. Updates are required every two years. The last two numbers in the DOT number identify specifically when this is to be done. The last digit is the month, 0 (zero) being October. No one updates in November or December. The second to last digit, even or odd, identifies the year the update must be completed. Therefore, if a motor carrier’s DOT number is 2578346, the updated should be completed June of even years.

THIS MONTH WE REPORT:

“Gasoline has been poured on the fire that is our ongoing supply-chain crisis.” That’s the reaction of the California Trucking Association after the US Supreme Court denied its petition challenging California’s AB5 law, which makes it more difficult to classify workers as independent contractors. The Association says more than 70,000 owner-operators could be affected. Protests were held at California ports in LA and Oakland as truckers as the 2019 law went into effect. Learn more in these stories: 

Supreme Court denies California Trucking Association’s AB5 Case

Supreme Court Ruling may take 70,000  truckers off road 

California Truckers Struggle to Comply with New Employment Law – WSJ 

California trucking prepares for shake-up under independent contractor law AB5  

Call for repeal of AB5 in California  

Cameras 

More cameras in more places. CCJ takes a closer look at cameras, and how fleets and drivers are using them for more than just foiling thieves after their cargo. Learn more 

Younger Drivers 

CAB’s Chief Operating Officer Shuie Yankelewitz says new laws allowing 18-year-olds to drive commercially may not have that much impact on the industry if the fleets that do the hiring can’t get past insurance requirements. CCJ – Commercial Carrier Journal – talks to Yankelewitz and looks at what it takes to get younger drivers insured. Learn more

New Safe Driver Apprenticeship Pilot Program: FMCSA encourages companies to prepare for the SDAP Program by reviewing requirements. Learn more 

Safety 

The hot summers can be extra dangerous for truck drivers, as tire safety risks can rise with the temperature. Irregular tire wear (especially in the center of the tire tread), bulges, blisters, peeling and/or discoloration could be signs that a tire is overheating, according to Mark Finger, Senior Vice President of Maintenance and Operations at Transervice. Get tips on recognizing the signs of heat damage and taking preventive action to reduce the damage to tires due to overheating. Learn more

Brake Safety Week is August 21-27. In this important article, CCJ looks at one of the most common violations: brake hose chafing. “Anytime hoses are permitted to move there is potential for lines to rub,” said Transervice Vice President of Maintenance Matt Copot. Learn more  

Inspections are on the rise, and so are moving violations. Todd Dills from Overdrive reports that the initial COVID downturn in both inspections and violations is reversing itself this summer. Learn more 

Drug test results for truck drivers: nearly 130,000 truck drivers were in the Drug and Alcohol Clearinghouse as of June 1. Jason Cannon and Matt Cole from CCJ take a look at what this means for the transportation industry. Watch 10-44 with Jason and Matt

Brokers 

Should dispatch services be considered brokers? The FMSCA asked for comment and the Owner-Operator Independent Drivers Association says, “it depends.” Matt Cole from Overdrive reveals details of this comment and others that have been received so far in the debate on broker reform. Learn more 

Chameleon Carriers 

two lines of the cabs of semi trucks

Did you miss our special update on chameleon carriers? Get the scoop here.

July 2022 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Garza v. Pullen, 2022 Tex. App. LEXIS 4958 (Tex. Ct. App. July 20, 2022).  The Court of Appeals of Texas affirmed in part and reversed in part the trial court’s grant of summary judgment to a motor carrier.  The case involved an accident with a tractor-trailer parked on the side of the highway.  The appellate court held there was a fact issue regarding the proximate cause of the accident, such that the motor carrier/tractor trailer driver were not entitled to summary judgment on the simple negligence cause of action.  However, the tractor-trailer operator’s failure to put out warning devices was held to be insufficient to satisfy the gross negligence standard, and accordingly the motor carrier and tractor-trailer driver were entitled to summary judgment on the gross negligence cause of action.   

Roberts v. Bentarius Fonta Stewart, 2022 U.S. Dist. LEXIS 126797, C.A. No. 22-0187 (S.D. Ala. July 18, 2022).  The federal court denied a tort plaintiff’s motion to remand the tort action to state court.  While the pleadings did not contain a specific amount pled as damages, the federal court held it could read the nature of the allegations of the complaint, including that the tort plaintiff’s vehicle was totaled, the plaintiff’s vehicle was allegedly dragged underneath the trailer, and the tort plaintiff sustained “significant personal injuries”, in combination with “judicial experience and common sense” to rule that the amount in controversy exceeded the $75,000 jurisdictional threshold. 

Gregory v. Lindamood Heavy Hauling, 2022 U.S. Dist. LEXIS 125575, C.A. No. 22-327 (W.D. Ok. July 15, 2022).  The Oklahoma court applied prior precedent in dismissing negligent hiring, training, supervision, retention, and monitoring causes of action where the motor carrier had previously stipulated that the driver was acting within the course and scope of his employment at the time of the Accident.  With respect to the negligent entrustment cause of action, the court explained that cause of action could be maintained even where the employer stipulates to course and scope of employment.  However, the court held the plaintiff failed to plead facts necessary to give rise to a viable negligent entrustment cause of action.  The same was true with respect to the allegation the motor carrier “ratified” the driver’s negligent actions, with the court specifically noting the employer stipulated the driver was acting within the course and scope of employment whereas ratification presumes an “after-the-fact” approval of something not otherwise authorized. 

Odisho v. Yacouba, 2022 U.S. Dist. LEXIS 121786, C.A. No. 21-11021 (E.D. Mich. July 11, 2022).  The court held there was no evidence that FMCSR violations found on the tractor (a crack on the passenger side of the windshield; three axles out-of-adjustment; and “CMV manufactured after 10/19/94 has an automatic airbrake adjustment system fails to compensate for wear”) and two violations with respect to the trailer (left and right brake lamp and left turn signal inoperable), almost two weeks after the accident, played any causal role in the fatal backing accident.  As such, the lessor of the equipment was entitled to summary judgment in the personal injury action. 

Alexander v. Davis, 2022-Ohio-2345, Appeal No. C-210461 (Ohio Ct. App. July 6, 2022).  An employee staffing company, which provided CDL drivers to a motor carrier customer who then drove the motor carrier’s equipment under the motor carrier’s operating authority, was not entitled to summary judgment in a personal injury suit alleging one of the temporary drivers negligently operated a CMV causing a fatal accident.  The court held there was a direct employment relationship between the driver and the customer motor carrier, but not to the exclusion of potential employment by the staffing company as well.  As such, the staffing company was not entitled to judgment in its favor as a matter of law with respect to the personal injury action.    

McMaster v. DTE Energy Co., 2022 Mich. LEXIS 1319, No. 162076 (Mich. July 1, 2022).  The Supreme Court of Michigan held that Michigan’s adoption of the Motor Carrier Safety Act did not abrogate the common law duty a shipper owes to use reasonable care while loading cargo where the shipper assumes the responsibility of loading.  The “shipper’s exception” holding the shipper liable to the carrier and/or injured third parties for injuries caused by latent and concealed defects that cannot be discerned by ordinary observation by the carrier remained good law even after enactment of the MCSA.  Thus, if the defect is latent, the shipper is liable to injured third parties, whereas if the defect is readily discernable to the carrier, the carrier but not the shipper can be held liable.  However, the court found the defect at issue in the case was not latent and was discernable by the carrier’s driver.  As such, the shipper was entitled to summary judgment in the personal injury action. 

Marr v. Croxton, 2022 U.S. Dist. LEXIS 115155, SA-21-CV-00961 (W.D. Tex. June 29, 2022).  The court held that failure to log on-duty hours as required by FMCSRs was not, standing alone, sufficient to create a genuine issue of material fact as to whether the driver was fatigued at the time of the Accident.  As such, this was not enough to support a gross negligence cause of action.  Similarly, the court held there was insufficient evidence to support a gross negligence claim against the motor carrier premised upon negligent hiring, retention, and entrustment or failure to follow FMCSRs.  Moreover, because the motor carrier admitted the driver was acting within the course and scope of his employment at the time of the Accident, the direct negligence claims against the employer had to be dismissed. 

Martin v. Thomas, 2022 La. LEXIS 1288, C.A. No. 2021-C-01490 (La. June 29, 2022).  The Supreme Court of Louisiana has now spoken on a frequently litigated issue (with differing rulings by jurisdiction).  The court ruled that a plaintiff may pursue both a negligence cause of action against an employer for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention, as well as negligent entrustment claims, even if the employer stipulates the employee was in the course and scope of employment at the time of the injury. 

BROKER

No notable decisions to report this month. 

CARGO

Beaumont v. Vanguard Logistics Servs. (USA), Inc., 2022 U.S. Dist. LEXIS 127632, C.A. No. 2:22-cv-02715 (D.N.J. July 19, 2022).  Plaintiff contracted with VLS for the carriage of cargo containing a motorcycle, bicycle, and other personal items from Australia to the United States.  The bill of lading VLS issued reflected transport from Sydney, Australia to Ballston Spa, New York (an inland port 30 miles north of Albany, NY).  Plaintiff alleged that the crate was shipped from Sydney, Australia to the Port of Los Angeles, where it was then transported by rail to Carteret, New Jersey.  Plaintiff further alleges the cargo was damaged while in Carteret, New Jersey at VLS’s warehouse while awaiting to clear customs.  The plaintiff brought a state court action in New Jersey state court alleging violations of New Jersey’s Consumer Fraud Act, which VLS then removed to federal court on the basis of diversity and maritime jurisdiction.  VLS then sought transfer of the case to the Southern District of New York pursuant to a forum selection clause contained in the VLS bill of lading.  Plaintiff challenged the transfer, alleging there was no admiralty jurisdiction because the damage occurred on land, that the standard terms of the bill of lading were unenforceable as contracts of adhesion, and the forum selection clause and COGSA were inapplicable because the cargo was damaged during overland transport by means other than what was expressed in the bill of lading.  The court rejected each of Plaintiff’s arguments.  As for admiralty jurisdiction, the court found the contract of carriage “required performance substantially by sea.”  As for the contract of adhesion argument, the court noted that forum selection clauses are generally valid even when part of a contract of adhesion.  Similarly, Plaintiff was unable to show that being forced to litigate the action in the SDNY would be so gravely difficult so as to deprive him of his day in court.  Last, the court noted that the bill of lading provided for through transportation and that the carriage to its final destination inevitably had to include carriage by land. 

Patriot Logistics v. Travelers Prop. & Cas. Co. of Am., 2022 U.S. Dist. LEXIS 122600, C.A. No. 4:20-cv-03565 (S.D. Tex. July 12, 2022).  A motor carrier sued its cargo insurer after it denied a cargo claim stemming from goods stolen from a locked, secure “drop yard.”  The motor carrier tendered the cargo claim to Travelers, but Travelers denied the claim.  The shipper eventually sued the motor carrier and Travelers refused to provide a defense to the motor carrier.  The motor carrier then settled directly with the shipper but then sued Travelers for breach of contract, breach of good faith and fair dealing, and violations of the Texas Insurance Code. Travelers sought summary judgment as to all causes of action.  In assessing the duty to defend, the court limited its analysis to the allegations of the underlying complaint to determine whether it triggered coverage, as alleged, under the Travelers Policy.  As such, the court sustained Travelers’ objections to consideration of additional materials made part of the motor carrier’s complaint but not included with the shipper’s complaint against the motor carrier.  However, the court then rejected Travelers argument that the suit was time-barred because the statute of limitation ran from the date of its denial of the claim.  Instead, the court held the breach of the duty to defend, as well as the breach of good faith and fair dealing, accrued when the underlying lawsuit was filed and Travelers refused to provide a defense—in the court’s reasoning, “[p]rior to that, there was nothing for Travelers to either defend or indemnify.”  Thus, it denied Travelers summary judgment on these counts.  However, for the specific allegation of breach of Chapter 541 of the Texas Insurance Code, the court, applying prior rulings, held it accrued as of the date of the first denial such that this cause of action was time-barred.  Arnold v. Allied Van Lines, Inc., 2022 U.S. Dist. LEXIS 116529, C.A. No. SA-21-CV-438 (W.D. Tex. July 1, 2022).  The Texas trial court held the household goods carrier satisfied, as a matter of law, the four factor Hughes test with respect to its $150,000 limitation of liability except for specific items listed on the carrier’s “High Value Inventory List.”  The court held there were multiple reasonable interpretations of the High Value Inventory List—1.) that items listed there were not subject to the general $150,000 limitation of liability; or 2.) those items are still subject to the $150,000 limitation of liability.  As such, that aspect of the case presented a jury question, and the household goods carrier was not entitled to summary judgment.   The court further held that the household goods carrier, if found liable, could elect between repair or replacement value in its discretion, rejecting the claimant’s argument the carrier could only pay replacement value.  Last, the court held the claimants could recover attorney’s fees, provided they met all requirements of 49 U.S.C. § 14708(d). 

Kelly v. FedEx Corp. Servs., 2022 U.S. Dist. LEXIS 1117221, C.A. No. 3:22-cv-50 (D.N.D. May 31, 2022).  The North Dakota federal court remanded a case stemming from alleged loss/damage to cargo under the Carmack Amendment, finding the $10,000 jurisdictional threshold had not been met.  The claimant initially filed a state court action alleging various state law causes of action and seeking damages “not less than $50,000.”  The claimant later filed a motion for default judgment in the state court action seeking $2,500 plus fees and costs.  The day after FedEx removed the case to federal court, the claimant filed an amended complaint in state court removing the bad faith claim and seeking damages “not to exceed $7,500.”  The claimant alleged in the complaint he purchased the at-issue cargo (rifle) from a firearms dealer for $2,545.  When he arranged shipment with FedEx, he declared a value of $2,500.  Against this record, the court held there was not sufficient evidence that the amount in controversy exceeded the $10,000 threshold for federal jurisdiction. 

COVERAGE

Lancer Ins. Co. v. Jet Exec. Limousine Serv., 2022 U.S. Dist. LEXIS 125649, C.A. No. 1:19-cv-3024 (N.D. Ga. July 14, 2022).  In an insurance coverage declaratory judgment action arising from a single-vehicle accident involving a bus, partial summary judgment was granted to insurers and partial summary judgment was granted to tort plaintiffs named as defendants in the DJ action.  The dispute involved multiple different liability and excess policies issued to different transportation companies allegedly involved in the at-issue trip.  The court held the auto exclusion under an at-issue Cooper-Global CGL policy excluded coverage for the loss.  The at-issue Cooper-Global commercial auto liability policy provided coverage for scheduled, hired, and non-owned autos in the amount of $1.5 million, which the insurer conceded during briefing did provide coverage for the loss.  With respect to the Cooper-Global excess policy, it contained a scheduled listing of 23 vehicles (as opposed to the 92 listed under the primary Cooper-Global policy).  The Cooper-Global excess policy also included verbiage indicating it was follow-form to the underlying insurance, unless there was otherwise a conflict between the two, in which case the terms of the excess policy controlled.  Since the Cooper-Global excess policy only included a schedule of covered autos, the involved bus was not listed on the excess policy schedule, and the excess policy did not include the numeric designation for hired and non-owned autos (as did the Cooper-Global primary policy), the court found a conflict between the primary and excess policy regarding the scope of coverage.  Accordingly, given the language of the Cooper-Global excess policy, its language prevailed and the court held the auto was not covered under that excess policy despite being covered under the underlying Cooper-Global primary policy.  With respect to whether the MCS 90-B endorsement on the Cooper-Global policy applied, the court adopted the “majority view” that the endorsement only applies when the vehicle is involved in interstate travel at the time of the accident.  Finding the at-issue trip was not a “practical continuity of movement” between transportation providers in interstate commerce, the MCS 90-B endorsement on the Cooper-Global primary policy was held to be inapplicable.  With respect to the Form F endorsement on the Cooper-Global primary policy, the court held the tender of $1.5 million under the Cooper-Global primary auto liability policy eliminated any obligation under the Form F endorsement because the tender exceeded the state mandated financial surety requirement of $500,000.  The same was not true with respect to the Form F endorsement on another policy issued to a separate transportation company—Hennessy—allegedly involved in making the arrangements for the trip.  Because the court found there was a fact dispute whether Cooper-Global and Hennessy were the same company or merged prior to the Accident, and it was not clear that Hennessy was an insured under the Cooper-Global policies, the court held the $1.5 million tender under the Cooper-Global primary policy did not alleviate exposure under the Hennessy policy’s Form F endorsement. 

Brink v. Direct Gen. Ins. Co., 38 F.4th 917 (11th Cir. 2022).  The Eleventh Circuit Court of Appeals reversed a jury verdict in favor of an insurer on bad faith claims, finding the trial court gave an improper jury instruction regarding Florida’s law on bad faith. After start-and-stop efforts to obtain a settlement in exchange for the state-minimum policy limits under the policy, the tort plaintiff’s attorney finally responded acknowledging he would settle for the policy limits provided certain conditions were met.  However, the insurer failed to respond to this correspondence or otherwise re-tender the policy limits in response.  Further, there was no evidence adduced to show the insurer notified its insureds of this settlement offer or the risk of an excess judgment.  The tort plaintiff subsequently obtained a $12 million judgment at trial and then pursued the insurer for bad faith via an assignment from the insureds.  The appellate court reversed the jury verdict in favor of the insurer, finding that the jury instructions the plaintiff requested were consistent with Florida law.  Specifically, the court held Florida recognizes a separate component of insurance bad faith requiring the insurer to advise its insured of possible excess judgments.  As such, the case was remanded for a new trial. 

Progressive Paloverde Ins. Co. v. BJ Trucking Earthmover, LLC, 2022 U.S. App. LEXIS 19649, No. 21-30379 (5th Cir. July 15, 2022).  In a case arising from a fatal tractor-trailer on train accident, the trial court made several summary judgment rulings that were appealed to the Fifth Circuit.  The driver of the tractor-trailer was the sole member of BJ Earthmover, LLC, who owned both the tractor and trailer.  Progressive insured the tractor the decedent was driving under a Non-Trucking Liability Policy.  Heck Industries was alleged to have been the decedent’s employer at the time of the Accident, though it maintained the decedent was an independent contractor.  Heck was listed as an additional insured under the Progressive NTL policy.  Heck submitted a demand for defense and indemnification to Progressive.  The Fifth Circuit affirmed the trial court’s ruling on summary judgment that Heck was not the employer of the decedent driver, finding there was no written contract between the two, the decedent was paid by the load, each could have terminated the relationship at will, the decedent had control over the manner and method by which he performed the transportation, the only instructions from Heck were the location of pickup and delivery, the decedent had the option to work on any given day or not, and the only “instructions” given the haulers were safety restrictions for the plants on which they were operating.  The Fifth Circuit likewise affirmed the trial court’s ruling that the Progressive NTL policy did not require it to defend or indemnify Heck, noting that the endorsement for non-trucking liability excluded from the definition of “insured” “anyone engaged in the business of transporting property by auto for hire that is liable for your conduct.”  The NTL policy likewise excluded coverage when an insured auto or attached trailer was being used, operated, or maintained to carry property or while such property is being loaded or unloaded from the insured auto or the insured auto is used in any business or for any business purpose.  It was undisputed at the time of the Accident, the decedent was hauling 27 tons of sand, such that the Fifth Circuit found he was “indisputably hauling property at the point of collision.”  As such, the NTL Policy did not provide coverage for the loss.  The Fifth Circuit rejected Heck’s challenges to the legality of the NTL exclusion, noting the provision had been upheld by at least one other state appellate court. 

Ballentine Express Corp. v. EAN Holdings, LLC, 2022 U.S. Dist. LEXIS 126653, C.A. No. 2:21-cv-02242 (July 18, 2022).  A motor carrier rented a vehicle from Enterprise for use in its motor carrier operations.  As part of the rental agreement, the motor carrier purchased the $100,000/$300,000 liability coverage offered by Enterprise.  One of the motor carrier’s employees was involved in an accident while operating the rented vehicle.  The injured tort plaintiff filed a tort action in which he sued the motor carrier.  Shelter Insurance insured the motor carrier under a policy with $1,000,000 liability limits and which contained an MCS 90 endorsement.  Evidently, the rented vehicle was not listed on the Shelter Policy.  Shelter provided a defense to tort lawsuit to the motor carrier pursuant to a reservation of rights.  The motor carrier then sued Enterprise in a separate action in federal court.  Within the federal action, Enterprise filed a third-party complaint against Shelter.  In the third-party complaint, Enterprise sought declaratory judgment that any insurance coverage in relation to the Accident must come from the Shelter Policy and/or the MCS 90 endorsement on the Shelter Policy, not the Enterprise Policy, and that Shelter was required to indemnify Enterprise up to the limits of the Shelter Policy or MCS 90 endorsement.  Shelter then moved to dismiss Enterprise’s third-party complaint in the federal action.  Shelter argued the third-party complaint was improper because Shelter had no liability to Enterprise, claiming any liability of Shelter would be limited to the motor carrier only.  The court adopted Shelter’s arguments and dismissed Enterprise’s third-party complaint against it. 

Wagner v. Progressive Direct Ins. Co., 2022 Conn. Super. LEXIS 1740, No. HHD-CV21-6139450 (Conn. Super. Ct. July 11, 2022).  A tort plaintiff brought an uninsured motorist complaint arising from injuries he sustained when he was rear-ended by an uninsured vehicle.  The uninsured vehicle was being operated by a driver in furtherance of CAS Trucking, LLC’s business at the time of the Accident.  CAS Trucking had rented the vehicle from Enterprise.  Progressive, as the putative UM carrier, filed an apportionment complaint against the truck driver, CAS Trucking, and Enterprise.  Progressive claimed Enterprise, in leasing/renting the vehicle to CAS Trucking, was independently negligent (to get around Graves Amendment) for failing to verify CAS Trucking had liability insurance coverage and allowing its truck to be driven on Connecticut highways without insurance.  Enterprise claimed as a rental car company, it had no legal obligation to provide liability insurance or ensure the users of its vehicles maintained minimum state liability limits, with this same rule applying regardless of whether it rented/leased passenger or commercial motor vehicles.  The court rejected Progressive’s arguments, explaining ‘[w]hile Connecticut’s statutory requirements for minimum insurance for motor carriers are not superseded under the Graves Amendment, their existence in no way undercuts the Graves Amendment’s absolute exemption of commercial renters and lessors of motor vehicles from liability for damages caused solely by the negligence of those who rent or lease from them. The failure to enforce a contractual provision obligating the lessor to meet minimum insurance requirements does not constitute “negligence on the part of the owner” sufficient to avoid the pre-emptive effect of 49 U.S.C. § 30106(a).”  The court also questioned whether Progressive’s theory could satisfy the proximate cause element.  As such, the court struck the apportionment complaint. 

P.I. & I. Motor Express, Inc. v. RLI Ins. Co., 2022 U.S. App. LEXIS 18525, Nos. 21-3412/3442 (6th Cir. July 6, 2022).  The Sixth Circuit held a workers compensation exclusion in a CGL policy did not bar coverage for a claim against a statutory employer stemming from a work-related injury.  A truck driver was injured while working at a plant.  He leased a truck from Sam Russell Trucking (“SRT”) and ran it under Motor Express’s operating authority.  The Administrative Law Judge hearing the workers’ compensation claim held SRT was the direct employer, whereas Motor Express and the owner of the plant were statutory employers of the injured driver.  However, SRT and Motor Express did not have insurance to respond to the workers compensation award, so the Administrative Law Judge ordered the plant owner to pay the benefits subject to its right to seek indemnification from Motor Express and SRT.  Motor Express later reimbursed the plant owner for the benefits.  However, the injured driver subsequently sued Motor Express in tort under the exception to the state’s workers compensation exclusivity rule when an employer or statutory employer fails to obtain workers compensation benefits.  RLI had in place a CGL policy for Motor Express.  Motor Express tendered the defense of the tort lawsuit to RLI, which RLI defended under a reservation of rights.  The tort suit was settled, but RLI refused to indemnity Motor Express for the settlement.  Motor Express then sued RLI seeking indemnification for the settlement in the tort lawsuit (but not the repayment to the plant owner under the workers compensation action).  The court held the workers compensation exclusion inapplicable because the liability for which Motor Express sought reimbursement under the CGL Policy was not “under” Pennsylvania’s workers compensation law. 

Alesevic v. Gordon, 2022 Mich. App. LEXIS 3815, No. 358507 (Mich. Ct. App. June 30, 2022).  This case involves a dispute between a commercial auto liability insurer and NTL insurer over who is responsible for first-party PIP benefits stemming from an accident.  The PIP endorsement on the NTL policy was specific to the listed auto, which was not involved in the Accident.  As such, the court agreed with the NTL insurer that its PIP endorsement was inapplicable.  Moreover, even if the PIP endorsement applied to other vehicles, the court found an exclusion for bodily injury to “anyone entitled to recover under Michigan’s no-fault benefits as Named Insured under another policy” applied to remove the claim from coverage.  Since the claimant was the Named Insured under the commercial auto liability policy, which also provided benefits consistent with Michigan’s no-fault system, the court held the exclusion in the NTL Policy PIP endorsement would apply to exclude coverage.  As such, the commercial auto liability insurer was solely responsible for PIP benefits.    

WORKERS COMPENSATION

Lewis v. Wieber, 2022 La. App. LEXIS 1094, C.A. No. 2021-CA-476 (La. Ct. App. July 6, 2022).  A driver who filed for and sought workers compensation benefits against a motor carrier, ultimately settling the workers compensation claim on a full and final release, was precluded, on res judicata grounds, from maintaining a separate tort action against the motor carrier.

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