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Bits & Pieces

CAB Bits & Pieces March 2023

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Is it Spring Yet?

March is upon us and before the end of the month, we will technically have started the spring season. For those of us that enjoy warmer weather outdoor activities, this is good news.

Are you attending NAMIC? For those of you attending the National Association of Mutual Insurance Companies Commercial and Personal lines seminar in Chicago, March 8-10, and we look forward to seeing you there.

It’s our first time attending and we’re very excited to participate in the conference. We will be at table number 2 and we look forward to seeing many of you. Please feel free to reach out if you have questions or if you’d like to touch base during the event. See you there!

Thank you and have a great March.

Chad Krueger

CAB Live Training Sessions

Tuesday, March 14th, 12p EST

Chad Krueger will present an updated session on CAB for Loss Control. This session will address recent enhancements to the CAB ecosystem and provide an updated overview of how to use CAB for Loss Control and Risk Improvement.   Suggested attendees are those that focus on safety, loss control, risk management, and the like. This session is also very popular for underwriters, producers, account executives, and account managers. Don’t miss out!  

Tuesday, March 21st, 12p EST

Mike Sevret will present CAB Advanced Training: Tips & Tricks. Learn about the various reports that are downloadable within the CAB ecosystem. Inspection details, shared vehicle reports, analysis central, schedules, SALEs leads and much more! This is a great session to get the most out of your CAB experience.

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: FMCSA Proposes Changes to Safety Measurements

In case you missed it, the Federal Motor Carrier Safety Administration (FMCSA) opened comments on proposed changes to its important Safety Measurement System (SMS) for commercial trucks and fleets. The SMS uses data from roadside inspections, crash reports, and investigations to identify and prioritize for intervention the motor carriers that pose the greatest risk to safety. The proposed changes would continue to use the same SMS data, adding enhancements to the methodology to better identify companies and fleets requiring intervention.

We at Central Analysis Bureau (CAB) are watching the proposed changes closely. We believe the proposed changes are evolutionary, not revolutionary, and fully support the FMCSA in its efforts to build a safer highway system. For those people familiar with the BASIC scores, the new methodology will feel familiar and may help simplify some of the more confusing aspects of the existing scores. We are actively evaluating the changes and their impact and are assessing how they can be used to our clients’ advantage should they eventually be finalized and rolled out.

The 90-day comment period has just begun, and of course no one knows exactly what the final roll-out will be later this year. We are convinced that changes will be positive, and we will be able to quickly integrate the changes in the CAB Report®, CAB Express™ report, CAB BASICs Calculator™ and other data products as necessary.

And finally, we highly recommend you take a few minutes to read this article on CCJ explaining the proposed changes. You can also review the formal proposed change document and comment on proposed changes.

THIS MONTH WE REPORT

In Case You Missed It: The Federal Motor Carrier Safety Administration (FMCSA) opened comments on proposed changes to its important Safety Measurement System (SMS) for commercial trucks and fleets. We highly recommend you take a few minutes to read this article on CCJ explaining the proposed changes. You can also review the formal proposed change document and comment on proposed changes.

Economy: The trucking environment is expected to soften in 2023. The Mullen Group talks business, rising interest rates and the struggle of the independent operator. Read more

U.S. Legislation: ATA President and CEO Chris Spear spoke before the House Transportation and Infrastructure Committee about the biggest challenges facing trucking. CCJ has the report

More U.S. Legislation: The bipartisan Motor Carrier Safety Selection Act has been introduced in the US House, requiring the Department of Transportation to toughen trucking regulations and requiring others to ensure that the trucking companies they hire or work with are licensed, registered and insured. Details on Overdrive

State Legislation: Iowa statehouse Republicans are advancing legislation that protects trucking companies whose employees case injury, death, or other damages while on the job. Get the details

Time on the road: Where are the bottlenecks? The American Transportation Research Institute (ATRI) lists the top ten bottlenecks for truckers. Can you guess which intersection is the worst? Get the answers

Innovation: Melton Truck Lines is honored as CCJ Innovator of the Year for a program that financially incentivizes driver participation. Get the details

Safe Driver Apprenticeship Pilot Program: Jason Cannon takes a look at the the Safe Driver Apprenticeship Pilot Program that allows drivers under the age of 21 to drive the big rigs. Watch

Safety: More drivers are testing positive for marijuana, compounding driver shortages. Despite the fact that marijuana is legal in many states now, drivers are not allowed to use it for any reason. Thousands of those who tested positive did not enroll in their required return-to-work process. Read more

March 2023 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Gardner v. Boone, 2023 WL 1927992, C.A. No. 19-cv-5572 (E.D. Pa. Feb. 9, 2023). In this discovery dispute arising out of a motor vehicle accident involving a motor carrier, the court agreed with the motor carrier that certain of its internal materials/documents should be produced only after entry of a confidentiality order. The court held the motor carrier’s “Best Practices Guide”, and “Checks for Learning” need only be produced after entry of a stipulated confidentiality order. The court acknowledged that while some of the materials contained therein may be in the public domain, to the extent they involved FMCSRs and federal and state regulatory requirements, the materials were nevertheless entitled to protection. The court stressed the flexibility courts have in crafting a protective order.  The court also agreed with the motor carrier it need not produce “Critical Event” documentation that had been requested. First, no critical events were generated in connection with the specific driver and/or Accident, and, second, any such data, if generated, was generated and maintained by the truck manufacturer, not the motor carrier. The court further ordered the motor carrier’s “algorithms and equations for the ‘Driver Safety Reviews’” be produced, subject to the entry of the stipulated confidentiality order. The court denied the plaintiff’s request for certain records related to the co-driver, who all parties agreed was not operating the tractor-trailer at the time of the Accident. 

Lawson v. Parkwood Industries, LLC, 2023 WL 1997704, C.A. No. 3:21-cv-247 (M.D. Ala. Feb. 14, 2023). In this personal injury lawsuit arising from a motor vehicle accident, the motor carrier moved for partial summary judgment seeking dismissal of the negligent/wanton hiring, training, supervision, and retention claims, as well as the negligent/wanton entrustment claims. The court agreed and granted the motor carrier summary judgment on each of the challenged claims. With respect to the negligent hiring claim, the court held prior citations while the driver was employed by other motor carriers, which predated his hire by the defendant motor carrier by 8, 7, and 6 years, respectively, were insufficient to establish the driver was incompetent under Alabama law. The court further found, under the circumstances, the defendant motor carrier could not be tasked with knowledge of the prior violations because the driver did not disclose all previous employers in his application for employment. With respect to the negligent entrustment and negligent training causes of action, the court acknowledged the driver received additional “minor” citations while working for the defendant motor carrier, but none rose to the level of incompetence necessary to sustain these causes of action. 

Perez v. Roman, 2023 WL 2169134, C.A. No. 1:21-cv-187 (S.D. Tex. Feb. 2, 2023). In this personal injury action arising from a motor vehicle accident, the court’s ruling reiterated Texas’s standard for simultaneously maintain a respondeat superior action and negligent entrustment causes of action. It explained “Texas courts have repeatedly held that, where only simple negligence is alleged, negligent entrustment and respondeat superior are mutually exclusive modes of recovery. This is because under either theory, the employer is liable for the employee’s negligence, so the claims are repetitive of each other. . .The only instance where the claims are not mutually exclusive is when there is a simple negligence claim against the driver, but a gross negligence claim against the employee [sic, should be employer] for entrusting a vehicle to an incompetent or reckless driver.” Having found that the complaint did not raise any claims of  gross negligence against the employer motor carrier, “the availability of the respondeat superior claim makes the negligent entrustment claim untenable.”

Erdem v. J.B. Hunt Transport, Inc., 2023 WL 1116455, C.A. No. 3:22-cv-00216 (E.D. Tenn. Jan. 30, 2023). In this personal injury action arising from a motor vehicle accident involving a tractor-trailer, the court granted the motor carrier’s motion to dismiss various claims. Plaintiff brought this five-count action against Defendants for: (I) direct-negligence against the motor carrier; (II) direct-negligence against the driver; (III) negligence per se against the driver; (IV) respondeat superior against the motor carrier; and (V) economic, non-economic, and punitive damages against both driver and motor carrier. Defendants moved to dismiss Count I entirely, portions of Count II, portions of Count III, and Plaintiff’s claim for punitive damages or, in the alternative, to strike various portions of Plaintiff’s Complaint. With respect to Count I—direct negligence against the motor carrier—the court held the plaintiff failed to plead sufficient facts to support the claim, and accordingly dismissed the count in its entirety. The court noted that the operative complaint was “devoid of any facts about [motor carrier’s] hiring, training, supervision, or retention policies or procedures generally,” much less with respect to the involved driver. Similarly, the complaint alleged no facts regarding the motor carrier’s maintenance program or maintenance of the involved tractor-trailer.” Mere citation to other accidents and violations from the FMCSA website “involving unknown individuals, under unknown circumstances are irrelevant” and therefore do not meet the plaintiff’s pleading burden. With respect to the negligence claims against the driver, the court found the plaintiff had failed to plead facts necessary to support claims for speeding, failure to inspect, or recklessness or gross negligence. The court found the allegations were merely conclusory. As for the claim for recklessness, the court cited Tennessee’s heightened standard requiring a showing of conscious disregard of a substantial and unjustifiable risk. The court found that “an ordinary side-swipe car accident,” such as plaintiff alleges, does not support recklessness. With respect to negligence per se, the court agreed that mere formulaic citation to and alleged violation of FMCSRs is insufficient to meet the pleading standard. Accordingly, the court dismissed the challenged claims with prejudice, noting plaintiff had not submitted a proposed amended complaint in response to the motion and “nothing in her Complaint or briefing suggests that she possesses facts that would allow her to cure the pleading deficiencies.” 

BROKER

No decisions to report.

CARGO

Interboro Packaging Corp. v. New Penn Motor Express, LLC, 2023 WL 1993887, C.A. No. 21-cv-10591 (S.D.N.Y. Feb. 14, 2023). In this dispute involving freight charges, the court granted in part and denied in part an LTL carrier’s motion to dismiss. The parties entered into an agreement providing for certain rates for shipments. Plaintiff alleged the motor carrier ultimately invoiced them for greater than those amounts and objected to paying the increased charges. The motor carrier unilaterally terminated the agreement, and the plaintiff/shipper sued for breach of contract and fraud in the inducement. The motor carrier argued plaintiff’s breach of contract action was barred by the 180 day filing limitations period provided for under ICCTA, 49 U.S.C. 13710(a)(3)(B). The motor carrier further argued the fraud cause of action was preempted by ICCTA. The court reasoned that ICCTA applied to the dispute but could not find the 180-day limitations period applied to a breach of contract claim not seeking overcharges. It therefore denied the motion with respect to the breach of contract claim, subject to the motor carrier’s right to move for summary judgment following discovery. However, with respect to the fraud in the inducement claim, the court agreed with the motor carrier that it was preempted. The court found, based upon the allegations of plaintiff’s operative pleading, that the claim “concerns issues related to Defendants’ price or service.” Citing numerous other cases, which plaintiff failed to distinguish, the court held the fraud claim was preempted.

Ikegwuoha v. Art Village Gallery et al., 2023 WL 1868420, C.A. No. 21-cv-6263 (S.D.N.Y. Feb. 9, 2023). An artist consigned several pieces of art to a gallery. When some of the artwork did not sell, the artist instructed the gallery to ship the remaining artwork to a designated address in New York. The art subsequently became “lost” before final delivery. The artist sued the gallery and the motor carrier the gallery had hired to perform the transport, alleging negligence against both. The court agreed that the artist’s negligence claim against the motor carrier was preempted by the Carmack Amendment. Rather than dismissing the claim, however, the court merely construed the claim as alleging Carmack liability. The court held the artist made a prima facie showing of entitlement to damages under Carmack, which the motor carrier did not dispute. However, the court agreed with the motor carrier that its damages were capped at $1,000—the declared value of the shipment, as declared by the art gallery at the time of booking the shipment with the motor carrier. 

Certain Underwriters at Lloyds v. CSX Transportation, Inc., 2023 WL 2138393 (S.D. Ill. Feb. 21, 2023). Following a trial in which the jury held CSX properly limited its liability, the federal trial court rejected the subrogated insurer plaintiff’s Rule 50 Renewed Motion for Judgment as a Matter of Law. The court explained that for CSX to prevail on its limitation of liability, at trial, it must prove the following by a preponderance of the evidence: defendant must prove the following four elements by a preponderance of the evidence: (1) That the carrier provided the shipper, upon request, a copy of its rate schedule; (2) That the carrier gave the shipper a reasonable opportunity to choose between two or more levels of liability; (3) That the carrier obtained the shippers agreement as to the shippers choice of liability; and, (4) That a bill of lading was issued prior to moving the shipment that reflects the agreement.  Reviewing the evidence adduced at trial, the court held there was no reason to disturb the jury’s verdict, finding there was sufficient evidence from which a jury could conclude each of the four elements had been met. First, the court held the shipper had “constructive notice” of CSX’s limitation prior to the shipment given the shipper’s prior dealings with CSX. As for the second element, the court again held that testimony from the shipper’s logistics manager established he knew he could have selected a higher level of liability in exchange for a higher shipping rate, but ultimately opted for the lower shipping rate/lower level of liability. This was sufficient to satisfy the “reasonable opportunity to choose.” As for the third element—shipper’s agreement—testimony established that the shipper knew each time they shipped with CSX, they accepted CSX’s standard terms and conditions. As such, the court held this was sufficient to meet this requirement. Last, while the bill of lading did not expressly contain the limitation, because it was completed online, it applied the limitation of liability rate. Based upon this record, the court held there was sufficient evidence from which a jury could conclude each of the four elements had been met, and accordingly the limitation of liability was enforceable.

Triax, Inc. v. TForce Freight, Inc., 2023 WL 1970477, C.A. No. 1:22-cv-01693 (D. Md. Feb. 11, 2023). In this action arising from a damaged “brass separating machine” the court agreed with the motor carrier that the shipper’s complaint alleging negligence, compensatory damages, and requesting attorneys’ fees and costs, was wholly preempted by the Carmack Amendment. As such, the court dismissed the lawsuit without prejudice, subject to the shipper’s right to file an amended complaint alleging a sole Carmack claim. 

EMCO Corporation v. Miller Transfer & Rigging Co., 2023 WL 1305110, C.A. No. 22-3376 (6th Cir. Jan. 31, 2023). This appeal involves whether a shipper/plaintiff satisfied all requirements to make a prima facie showing of entitlement to damages under the Carmack Amendment. Specifically at issue is the second element—arrival in damaged condition. The point of delivery under the at-issue bill of lading was the Port of Baltimore (though, following delivery it was to be shipped overseas via a separate bill of lading/ocean waybill). The shipper/plaintiff acknowledged the goods arrived undamaged at the Port of Baltimore but claimed packaging errors while in the motor carrier’s possession prior to arrival at the Port of Baltimore ultimately played a role in the damage that occurred during the overseas portion of the shipment. The court rejected this argument, finding the arrival of the goods free from damage at the Port of Baltimore was the relevant inquiry. In the court’s view, it mattered not that some action by the motor carrier, while the goods were in its possession, may have later played a causal role in subsequent damage once the goods were beyond the point of delivery for the motor carrier and outside of the motor carrier’s control. 

COVERAGE

RPM Freight Systems, LLC v. Wesco Ins. Co., 2023 WL 2021687, C.A. No. 21-11882 (E.D. Mich. Feb. 15, 2023). In this insurance coverage dispute, the court ruled against the CGL/umbrella insurer, finding coverage under the policies was triggered. More specifically, the at-issue policies were issued to a freight broker and provided for Hired Auto and Non-Owned Auto liability coverage. The court held coverage was not triggered under the Hired Auto provision, because the freight broker does not “hire drivers (employees)” but hires carriers and arranges for shipments.”  Finding that a primary requirement for coverage under the Hired Auto provision is that the hired auto be driven by an employee, the court ruled there was no coverage under the Hired Auto provision. However, the Non-Owned Auto liability provision merely required the involved auto be “used in connection with [the freight broker’s] business” to trigger coverage. The court held that there was no dispute that the transportation being undertaken at the time of the Accident was “in connection with” the freight broker’s business—the freight broker had contracted to arrange for the transport, the freight broker had contracted with the driver’s motor carrier employer for the transport, and the driver was transporting the brokered load at the time of the Accident. Thus, the court held coverage was triggered under the Non-Owned Auto liability provision of the policies. The court then turned to the CGL/umbrella insurer’s argument that another insurer providing contingent auto/freight broker liability coverage to the freight broker was primary, on the basis the other policy provides “more specific coverage.” The court rejected this argument, finding both policies provided coverage on the same basis and were required to provide defense and indemnification in pro-rata shares.  Last, the court awarded fees and costs to the insured (subject to the contingent/freight broker’s subrogation rights) incurred because of the CGL/umbrella insurer’s wrongful denial of a defense to the insured. 

Argonaut Ins. Co. v. Atlantic Specialty Ins. Co., 2023 WL 1466623, C.A. No. 22-30325 (5th Cir. Feb. 2, 2023). In this dispute between two insurers, the Fifth Circuit Court of Appeals affirmed the lower trial court’s dismissal of claims by one insurer for contribution and defense costs from the other insurer. The appellate court agreed with the lower court that the Non-Trucking Liability insurer’s policy provided no coverage for a motor vehicle accident. The stipulated facts were as follows: Esnault, a commercial truck driver, operated a truck that Triple G Express leased from Double S Transportation. The truck was ordinarily garaged at Esnault’s residence. After making his final delivery, Esnault began driving the truck to a nearby store to buy groceries. However, before reaching the store, Esnault realized he had insufficient money, so he turned to go back home. When he was about four blocks away from his house, Esnault decided to buy cigarettes from a nearby gas station. As he was making a U-turn toward the gas station, Esnault was involved in the Accident. Argonaut and Atlantic Specialty both insured Triple G Express at the time of the Accident. Argonaut issued a commercial auto liability policy whereas Atlantic Specialty issued a Non-Trucking liability policy. It is assumed, though not clear from the opinion, that the NTL policy was issued to Esnault as the contractor, but also provided coverage for Triple G Express as an additional insured or otherwise. The term “Non-Trucking” is defined in relevant part under the policy to mean when the truck is “operating solely for personal use unrelated to the business of the Motor Carrier.” The NTL policy further explains “not Non-Trucking,” includes when the truck is “returning to the Truck’s Primary Garage Location subsequent to delivering a load.” Argonaut argued the NTL Policy provided coverage because at the time of the Accident, Esnault had finished his delivery and was using the truck solely for personal activities of buying groceries and cigarettes. The Fifth Circuit explained that at any given time, a truck could be put to both business and personal use. It found while Esnault was involved in a personal endeavor (buying groceries and cigarettes), he was also engaged in a business pursuit insofar as he was returning the truck to its primary garage location. Thus, it was not purely a personal use. Moreover, the court stressed the NTL policy expressly provided that a truck is “not Non-Trucking” when it is returning to its primary garage location subsequent to delivering a load. Thus, the appellate court agreed that the NTL policy did not provide coverage in connection with the Accident. 

Superior Towing and Transport, LLC v. J.B. Hunt Transport, Inc., 2023 WL 2163467, C.A. No. 21-cv-00900 (D. N.J. Feb. 22, 2023). In this action, a tow company sought to enforce a default judgment it obtained against a motor carrier in connection with cleanup and towing costs against the MCS 90 endorsement on the motor carrier’s policy.  The insurer acknowledged responsibility for certain charges under the endorsement but challenged the amount of the claimed damages as excessive and including miscellaneous administrative fees for which it had no obligation under the endorsement. Acknowledging that any obligation upon the insurer under the MCS 90 endorsement would not be triggered unless and until there was a final judgment, the court agreed the insurer need not have previously litigated the issues of reasonableness prior to the judgment being entered against the motor carrier (though the court did note the lack of judicial efficiency this created). The court further agreed with the insurer that it was permitted to separately litigate, including taking discovery, the issue of the reasonableness of the tow charges, the prior judgment notwithstanding.

Kim Cool, Inc. v. Cobra Trucking, LLC, 2023 WL 1113347, C.A. No. 2:21-cv-00432 (W.D. La. Jan. 30, 2023). In this insurance coverage dispute arising from a cargo claim, the court agreed that that the inclusion of a MCS 90 and Form F endorsement on the policy did not otherwise negate the application of a valid named driver exclusion to coverage under the policy. Therefore, the named driver exclusion was enforceable to remove from coverage the at-issue cargo claim. Since neither the Form F nor the MCS 90 endorsement applied to cargo claims, there was no surety obligation upon the insurer in connection with the cargo claim under either.  

WORKERS COMPENSATION

Taylor v. YRC, Inc., 2023 WL 1482322, C.A. No. 358037 (Mich. Ct. App. Feb. 2, 2023). Tort plaintiff sustained a work-related injury while working at YRC’s shipping terminal. Plaintiff was employed by a separate company, FAMCO, who provided maintenance and janitorial work at YRC’s facility.  t was in furtherance of this work that plaintiff sustained the injury. FAMCO did not carry workers compensation insurance and the owner disappeared shortly after the injury. Plaintiff filed a negligence suit against YRC, in response to which YRC alleged the defense of workers’ compensation exclusivity. The court agreed with YRC, finding it was the statutory employer of plaintiff insofar as his direct employer, FAMCO, did not have workers compensation insurance in place at the time of the work injury. The court rejected plaintiff’s argument that the exclusivity rule did not apply because he had not sought or been awarded workers compensation benefits from YRC, or any other entity. The court explained that seeking or receiving workers compensation benefits, does not on its own, determine whether the exclusive remedy applies.  Stated differently, whether the plaintiff actually received workers compensation benefits does not determine employment/statutory employment status in connection with application of the workers compensation exclusivity rule.

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