Hello Everyone! 

May is quite the busy month! With Mother’s Day, Memorial Day, graduations, and school summer break kicking off as we usher in Q2.

It’s been a busy convention season so far. We’ve been able to see so many of you at various industry events recently and look forward to connecting with even more of you soon in person. We’ve been busy with client on-site trainings as well. Reach out to us if your team would benefit from some specific training for your team to ensure you are getting the most out of your CAB platform.

Remember, CVSA’s International Roadcheck ’24 is coming up on May 14 – 16. Remind your fleets and drivers of the event and the importance of staying on top of vehicle inspections and driver expectations. Check out last month’s Bits & Pieces for additional details should you need more information on this annual event and the link to FMCSA’s guide on tractor pressure systems.

This coming Memorial Day let’s take time to remember those heroes who fought for us.

Chad Krueger and Pam Jones

Events

• CVSA International Roadcheck ’24 | May 14 – 16 | Enforcement facility (fixed and portable) near you | Remind your fleets & drivers of this event and the importance of inspection and driver preparedness

• International Risk Management Institute, Inc., (IRMI) Transportation Risk Conference (TRC) | June 3 – 5 | Houston, TX

CAB Live Training Sessions

Tuesday, May 14^th | 12p EST

The Power of Precision: Utilizing CAB Data for Audience Targeting in Digital Marketing | Joe Cantu

Join us as we explore how CAB data can supercharge your digital marketing efforts across paid social, programmatic, and paid search channels. 

Whether the goal is to find customers, gain market share, or prevent churn, CAB data alongside an effective digital marketing strategy can improve lead quality, increase efficiency, and drive bottom-line growth. 

Tuesday, May 21^st | 12p EST

Intro to CAB: Flow & Navigation | Connor Harper 

An overview of the basic flow and navigation of the CAB website. 

To register for the webinars, sign into your CAB account. Then click live training at the top of the page to access the webinar registration.

Explore all of our previously recorded live webinar sessions in our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks

THIS MONTH WE REPORT

FMCSA to make Congressionally-required changes to under-21 pilot program. The Federal Motor Carrier Safety Administration is seeking emergency approval from the White House Office of Management and Budget to amend the Safe Driver Apprenticeship Program. The spending bill included language that bars FMCSA from requiring the use of inward facing cameras or requiring a motor carrier to register an apprenticeship program with the Department of Labor as a condition for participation in the SDAP program. Read more… 

FMCSA forces broker transparency from Uber Freight after double brokering scam. The FMCSA, for perhaps just the second time in its history, forced a broker to reveal what a shipper paid them after a double brokering scam on Uber Freight’s network left a carrier unpaid and complaining to the regulator. Read more…  

What it takes to advocate for legal abuse reform. Addressing lawsuit abuse is a “top tier issue” for the American Trucking Association, said David Bauer, vice president of state and tax policy. Besides trying to rein in huge lawsuits and nuclear verdicts, Bauer noted that the goal of tort reform is to restore balance and fairness to the judicial process for the trucking industry, pointing out how the judicial environment has become “unbelievably skewed” against the industry. Read more… 

Convoy fallout: Stiffed carrier feels freight brokers’ bond amount should vary according to company size. Small fleet owner Surinder Gill was, in part, the subject of Overdrive Executive Editor Alex Lockie’s reporting on the collapse of the Convoy broker which told the tales of owner-operators and small fleet owners who, months following the abrupt shuttering of Convoy in October 2023, remained unpaid for in some cases thousands’ worth of work hauling. Read more… 

Renewable diesel a more effective tool to decarbonize trucking than BEV, report says. Research conducted by American Transportation Research Institute (ATRI) shows renewable diesel is not only a promising solution for lowering the trucking industry’s CO2 emissions, it’s also significantly cheaper than battery electric technology. Read more… 

Benchmark diesel price below $4 again as war-led rally fizzles. The benchmark diesel price used for most fuel surcharges is back below $4 a gallon. A decline of 2.3 cents a gallon from the prior week’s number put the Department of Energy/Energy Information Agency price at $3.992. It’s only the second time in the past 11 weeks that the price has been below $4. Read more… 

May 2024 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinak Law Group LLP.

AUTO

JNM Express, LLC v. Lozano, 2024 WL 1685012, No. 21-0853 (Tex. Apr. 19, 2024).  In this appeal arising from a substantial jury verdict against a motor carrier, a freight broker, and their shared owners, the Supreme Court of Texas reversed the jury verdict against the broker, finding there were insufficient facts in the record to support the verdict, and further, reversed the verdict against the owners of the trucking company and brokerage, finding that the “injustice” prong to pierce the corporate veil was not satisfied.  At the time of the accident, Lauro Lozano was driving a truck owned by JNM Express, LLC, but leased to ANCA Transport, Inc, when he fell asleep and crashed into another 18-wheeler.  JNM and ANCA were both owned by Jorge Marin and the two companies shared equipment and drivers.  Jorge Marin and his wife owned a third company, Omega Freight Logistics, LLC, which is a freight broker.  The Marins jointly manage all three companies.  Following the accident, Lozano (the driver of the CMV) and his wife filed suit against JNM, ANCA, Omega, and the Marins, individually.  The lawsuit alleged Lozano had been driving in violation of federal hours-of-service regulations on the trip that led to the accident and that Lozano had alerted Jorge Marin to the hours-of-service issue, but Marin requested Lozano to falsify his driver logs to continue the trip.  They alleged the hours-of-service violations and lack of required rest was a cause of the accident.  As an initial issue, the Supreme Court of Texas addressed whether Lozano was an employee of any of the companies, as that could affect the comparative negligence standard under Texas’s labor code.  While noting that JNM and ANCA were clearly Lozano’s employer under the 49 C.F.R. 390.5 definition, the court posed whether that was the appropriate standard to apply, as opposed to the common law definition of employee, in the context of a suit by a driver against the motor carrier.  In rejecting that Omega would be the employer of Lozano under either the federal statutory or common law definition, the court held the mere reference to Omega as the employer in the accident report, standing alone, was insufficient proof of employment.  The court went on to hold there was no other factual support in the record to support an employment relationship, even under the broader 49 C.F.R. 390.5 definition, between Lozano and Omega.  Next, the court reversed the portion of the decision that held the Marin’s individually liable under an alter ego theory of piercing the corporate veil.  Under the Texas standard, “alter ego is … one of the bases for disregarding the corporate fiction.  Alter ego applies when there is such unity between corporation and individual that the separateness of the corporation has ceased and holding only the corporation liable would result in injustice.”  The court found the “injustice” prong was not met under the facts of the case.  It found “[t]he Lozanos point to nothing in the record showing that the Marins abused the corporate form such that failing to pierce the corporate veil would result in ‘injustice’ in the sense that our alter ego cases describe that concept. One relevant consideration in the tort context is whether the corporation was ‘reasonably capitalized in light of the nature and risk of its business.’ Yet the Lozanos produced evidence at trial to demonstrate that the companies did have the resources to protect their drivers.”  As such, it dismissed Omega and Ms. Marin and remanded the case for further proceedings to determine whether the damage award was excessive.

Butler v. Adorno, 2024 WL 1312477, C.A. No. 5:21-cv-182 (M.D. Ga. March 27, 2024).  In this personal injury action arising from a motor vehicle accident, a motor carrier prevailed in obtaining summary judgment on negligent hiring, retention, and training causes of action.  The defendant driver had two periods of employment with the motor carrier, initially between August 2018 and December 2018, and then again from April 2019 through the date of the accident.  The motor carrier employed a third-party company that ran background checks and verified past employment for potential driver hires.  The motor carrier also obtained a MVR going back seven years.  Initially, in 2018, the driver’s MVR revealed two incidents: (1) a 2015 ticket for speeding in a non-CMV; and (2) a 2017 citation for hauling a trailer with in inoperative slack adjuster.  The motor carrier reviewed these violations at the time, determined they were not disqualifying, and hired the driver.  The driver had been involved in a 2008 accident while working for another motor carrier, but the 2008 accident was not contained in the MVR, which only went back seven years. It likewise was not revealed by the third-party investigator’s inquiries to prior companies. The motor carrier further required all its drivers to have two years of driving experience and provided training, including a written test on the FMCSRs, training using the Smith System, and road testing.  When the driver came back to work in 2019, the motor carrier again ran his background check but did not require him to undergo additional training.  In addressing the negligent hiring and retention causes of action, the Court found they presented no issue of material fact.  It held there was no evidence the motor carrier knew the driver had been in another rear-end collision at the time he was hired.  Further, the court noted there was no evidence that the motor carrier failed to comply with the FMCSRs, and in fact, “went beyond them” by obtaining a seven-year MVR as opposed to a three-year MVR.  The motor carrier did request information from the driver’s former employers for the three years preceding the application, consistent with FMCSR requirements.  The Court further found that even had the motor carrier done a complete re-investigation at the time of the driver’s re-hire in 2019, there was no evidence to suggest the 2008 accident would have been discovered.  Accordingly, there was no evidence to sustain the negligent hiring and retention claims and those were dismissed.  With respect to the negligent training cause of action, the Court found there was no supporting evidence, having previously excluded plaintiffs’ expert opinions for “lack of reliable data and methodology.”  Additionally, it found there were no federal regulations or “other authority” mandating such training, the violation of which could support the cause of action.  Accordingly, the Court likewise dismissed the negligent training cause of action.  Finally, the Court dismissed the negligent maintenance cause of action, finding there was no evidence in the record establishing the tractor-trailer involved in the accident was defective in any way and/or that any such defect played a role in the accident.  However, the Court denied summary judgment to the driver on the negligence claim and denied summary judgment to the motor carrier on the vicarious liability claim premised upon the driver’s negligence. 

Cardenas v. Moody, 2024 WL 1257423, C.A. No. 23-cv-001048 (D. Colo. March 25, 2024).  In this personal injury action, a motor carrier obtained, via a motion to dismiss at the pleadings stage, dismissal of negligent hiring, training, and supervision causes of action.  The operative pleading included allegations that the motor carrier should have a training program that ensured drivers knew how to safely operate CMVs in accordance with FMCSRs and should exercise reasonable care in hiring, training, retention, and supervision of its drivers, which it was alleged the motor carrier failed to do in this instance.  However, in addressing the negligent hiring cause of action, the Court noted the pleading “lacks any factual allegations that [the motor carrier] knew or should have known when it hired [the driver] that his use of its truck would pose an unreasonable risk of harm to anyone. They allege no facts concerning [the driver’s] driving history or characteristics to support a reasonable inference that he was an incompetent driver when [the motor carrier] hired him. Nor do Plaintiffs allege that [the motor carrier] failed to conduct an appropriate inquiry into [the driver’s] background or follow up on any apparent issues in connection with his hiring or that a more searching inquiry would have revealed he had dangerous propensities.”  With respect to the negligent training claim, the Court found the pleading “lacks allegations that [the motor carrier] knew or should have known [the driver] presented some undue or unreasonable risk to third parties such as Plaintiffs. Nor do Plaintiffs make any factual allegations about the type of training [the driver] received, how it was deficient, or how it played a role in causing the accident.”  Last, with respect to the negligent supervision claim, the Court found “[t]he lack of factual allegations that [the motor carrier] knew or had reason to know that [the driver], because of his qualities, was likely to harm others in view of the work entrusted to him is fatal to this claim as well.”  Stated simply, the Court found the conclusory allegations of duties, paired with the fact the accident occurred, was insufficient to support these direct liability claims against the motor carrier. 

Heath v. J.S. Helwig & Son, LLC, 2024 WL 1361873, C.A. No. 3:21-cv-119 (M.D. Ga. March 29, 2024).  In this personal injury action, the motor carrier successfully had claims for negligent hiring, training, retention, supervision, and entrustment dismissed via summary judgment.  Helwig, the motor carrier, hired Black as a company driver in October 2019.  Helwig requires its drivers to be a minimum age; to have been driving on a Class-A CMV for at least one year in the past 3 years; and no driver can have more than three moving violations in a three-year period, no more than two moving violations in a 12-month period, and no Department of Transportation (“DOT”) reportable accidents within a period of one year.  Black underwent Helwig’s hiring procedure before receiving his offer of employment which included completing Helwig’s online application and signing disclosures for background checks from consumer reporting agencies, the Federal Motor Carrier Safety Administration, the DOT, and his criminal history. On his application, Black disclosed his previous employment as a truck driver with eight other trucking companies since 2008. He reported one termination ten years before, in 2009, for a failed alcohol test. The application instructed him to disclose moving or traffic violations within the DOT’s required previous three-year-period. Black reported he had no violations within that time period, but he did include one speeding ticket for travelling nine miles over the speed limit in March 2016. Black stated he had not been involved in any accidents within the past five years, had no criminal record, and no convictions for any alcohol, drug, or driving violations.  Helwig utilized third-party vendors to conduct independent investigations into Black’s background in accordance with the DOT’s three-year look-back period. The investigations included following up with Black’s previous employers for references and inquiring about any employment issues, pulling his Motor Vehicle Report, conducting criminal background checks, and obtaining a drug screening. The reports Helwig received reflected no issues with drugs or alcohol; indeed, Black’s previous employers stated Black had no issues with drugs or alcohol. Black’s drug test was negative in all respects. Black’s Motor Vehicle Report showed one violation and subsequent license suspension in 2014 for failing to pay a traffic ticket in 2013. His license was reinstated in 2015. No other violation was reflected on his record. Thus, his record reflected no moving violations in the applicable three years before his date of hire; the only moving violation reflected in his file was his self-reported speeding ticket in 2016. His record reflected no previous accidents.  Before hiring Black, Helwig required, as it does every prospective employee, to complete a road test, which exceeds the Department of Transportation’s requirements. Helwig also required its new hires, including Black, to complete over 10 training modules conducted by online training vendor Infiniti-I which Black had to pass or continue retaking until he passed before driving on the road. Black passed the road test and completed each training module.  Considering the foregoing evidence, the Court found plaintiff could not support each of the direct negligence claims against Helwig as required under Georgia law.  Accordingly, it granted summary judgment to Helwig on the negligent training, hiring, retention, supervision, and entrustment causes of action. 

BROKER

Morales v. OK Trans, Inc., 2024 WL 1349874, C.A. No. 2:19-cv-00094 (S.D. Tex. March 29, 2024).  In this personal injury action arising out of an accident involving a tractor-trailer, the Court granted Penske summary judgment finding it could not be held liable for the purported negligence of the operator of the tractor-trailer.  On or about December 26, 2018, in Bee County, Texas, Satnam Singh Lehal was driving a tractor-trailer owned and operated by OK Transport, Inc. (“OK Trans.”).  At some point, the tractor-trailer jackknifed, crossed into the oncoming lane, and collided with a pick-up truck driven by Lyndon Dean Meyer, who died on impact.  Penske previously moved for summary judgment on the basis that it acted only as a broker and not a motor carrier and therefore could not be held liable for the alleged injuries to the decedent.  The Court denied that motion, finding fact issues existed as to whether Penske operated in the capacity as a broker or motor carrier.  Penske subsequently moved for summary judgment, contending that even assuming arguendo it operated as a motor carrier, there was no basis for liability because it could not be the statutory employer of the driver of the tractor-trailer.  Insofar as the plaintiffs did not allege employment under 49 C.F.R. part 390.5, the sole issue before the court was whether the driver was Penske’s statutory employee under the “responsibility and control” test as developed under Texas law.  Under that test, the Court explained that an entity is a statutory employer if: (1) the entity is a motor carrier and not a broker; (2) it does not own the vehicle involved; (3) it is using the vehicle in interstate commerce; and (4) it does not employ the driver.  Only the “interstate commerce” element was at issue in the pending motion.  The Court found, consistent with various federal regulations, that a motor carrier (which Penske was assumed to be for the purpose of the motion) cannot use a vehicle in interstate commerce unless it has an arrangement with the owner or driver of the vehicle, which was absent under the facts of this case.  Penske contended it could not be the driver’s statutory employer because there was no written or oral lease, or any other arrangement between Penske and the driver or OK Trans.  Penske, instead, contended it contracted with Penske Transportation Management LLC (“PTM”) to broker the shipment to Liberty Lane; Liberty Lane contracted Liberty Commercial, LLC, to sub-broker the shipment to OK Trans; and OK Trans employed Lehal to drive the shipment.  Penske argues that five steps removed is four steps too many; absent a “direct arrangement,” it cannot be vicariously liable for the driver’s negligence.  In addressing this argument, the Court cited 49 U.S.C. § 14102(a) and found “[t]he intent of the amendments was to ensure that interstate motor carriers would be fully responsible for the operation of leased vehicles and the supervision of drivers, thus protecting the public from motor carriers who might otherwise attempt to shirk financial responsibility for accidents.”  The “responsibility and control” test under Texas law developed out of the regulations applicable to leases for interstate motor carriers.  The Court explained that courts applying § 14102 and the responsibility and control regulations regularly impose statutory-employer liability on motor carriers when the carrier has a direct arrangement with the owner or driver of the vehicle at issue. Conversely, the Court found no cases where a court imposed statutory-employer liability absent an arrangement between the motor carrier and the vehicle’s owner or driver.  Accordingly, while the Court agreed with plaintiff that the failure to adhere to the written lease regulations would not absolve a motor carrier from statutory-employer liability, here Penske had no arrangement with OK Trans or the driver at all—not that it had an arrangement but did not formalize it via a written or oral lease.  Thus, the Court reasoned “considering the text of § 14202, the responsibility and control regulations, and the relevant case law . . . an arrangement must exist between the motor carrier and the owner or driver of the vehicle at issue to trigger statutory-employer liability.”  The Court went on to find that under the facts, there existed no evidence to support such an arrangement between Penske and the driver or OK Trans.  As such, it granted summary judgment to Penske. 

CARGO

Shaw v. United Parcel Service Inc., 2024 WL 469336, C.A. No. 3:23-cv-01996 (N.D. Tex. Apr. 4, 2024).  In this case arising from an alleged refusal of UPS to pick up and make deliveries from plaintiff’s location, the Court denied the plaintiff’s motion for remand.  UPS removed the case based on federal question jurisdiction under 28 U.S.C. §§ 1337 and 1445 because Carmack preempted plaintiff’s claims and the amount in controversy exceeded $10,000.  Plaintiff’s original complaint alleged monetary relief for “no less than $70,000.”  In his motion to remand, plaintiff offered to stipulate to damages less than $10,000, but the court rejected this as a basis to remand the case, noting that the amount contained in the active pleading was the operative amount to consider.  The court further held the plaintiff’s claims fell within the purview of the Airline Deregulation Act, which provided a separate basis for federal question jurisdiction.  As such, it denied the plaintiff’s motion to remand. 

Flynt v. Coleman Worldwide Moving, LLC, 2024 WL 1337356, C.A. No. 4:23-cv-00327 (E.D. Tex. March 28, 2024).  In this action arising from a delayed interstate move, the court granted the plaintiffs’ motion to remand.  According to the plaintiffs’ Complaint, the defendants are moving service companies hired by plaintiffs for their move from Texas to Kansas.  Plaintiffs’ claims arise out of defendants’ alleged failure to arrive to move plaintiffs’ belongings as scheduled. On April 27, 2022, plaintiffs and defendants entered into an Estimate and Order for Service Agreement (“the Agreement”) that defendants would arrive at plaintiffs’ residence in Lewisville, Texas on July 18, 2022, and load plaintiffs’ belongings.  Defendants would then deliver plaintiffs’ belongings to plaintiffs’ new residence in Manhattan, Kansas between July 19, and July 27, 2022.  Plaintiffs allege that defendants never arrived on July 18, 2022, and that defendants “admitted to improperly calendaring” plaintiffs’ move.  Plaintiffs allege that because of defendants’ misrepresentations, plaintiffs were forced to make other arrangements leading to a delayed move out and additional fees to set up a rush move out with alternative company, being forced to move out without power and air conditioning in the summer heat of Texas. Further, the plaintiffs allege they had to rearrange various delivery and installation appointments at their new home, causing weeks of delays for some of their appointments and missed work.  On October 11, 2022, plaintiffs sent defendants a demand letter for $9,630.63 in damages.  When the demand was not met, plaintiffs filed suit on December 29, 2022, in Texas state court.  Plaintiffs thereafter filed an Amended Complaint in state court on April 5, 2024.  Defendants filed a Notice of Removal on April 14, 2024, and thereafter filed a Motion to Dismiss on April 18, 2024, on various grounds, including Carmack preemption.  In arguing for remand, plaintiffs contended: (1) defendants were not subject to Carmack preemption because they never “received” the goods in question and therefore did not act as a motor carrier; and (2) the Notice of Removal was untimely because defendants were aware prior to the Amended Complaint that plaintiffs were seeking more than $10,000.  In addressing the first argument, the Court agreed with plaintiffs.  It found it lacked subject matter jurisdiction under the Carmack Amendment because the Carmack Amendment did not apply to plaintiffs’ claims.  Specifically, the Court held the statute sets out three categories of carriers that may be potentially liable under the Carmack Amendment when a shipper suffers a loss: “(A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported[.]”  Here, it found the defendants did not meet any of the three categories because (1) they did not “receive” plaintiffs’ property because they never “took possession” of the property; (2) did not serve as the “delivering carrier” because defendants “did not deliver [p]laintiff’s property” and did not “connect ‘any other carrier that delivers the property’”; and (3) the property did not travel over defendants’ “line or route.”  The Court likewise rejected the defendants’ argument that by “entering into the Agreement” they were providing “services related to ‘transportation’” and therefore fell within Carmack’s purview.  The Court rejected that the Agreement constituted a “service related to that movement.”  The Court went on to distinguish other case authorities cited by defendants on the basis that defendants never “retrieved” or “transported” plaintiffs’ items, and consequently “did not issue a bill of lading.”  Accordingly, the Court granted plaintiffs’ Motion to Remand.  However, they rejected the plaintiffs’ request for attorneys’ fees related to the Motion to Remand, accepting defendants’ argument that it was not until a March 30, 2023, email between the respective counsel that the plaintiffs first clearly identified they were seeking damages in excess of $10,000 dollars insofar as all pleadings prior to that did not contain a specific claimed amount.  As such, it found the Notice of Removal was timely.  Considering the various arguments on Carmack preemption, the Court also agreed the defendants’ removal was not “objectively unreasonable.”  As such, it denied plaintiffs’ requests for attorneys’ fees and costs. 

Scheuer v. Rado Express Logistics, Inc., 2024 WL 1328818, C.A. No. 23-cv-00531 (N.D. Ill. Mar. 28, 2024).  In this case arising from an “interstate move gone wrong,” the court partially granted defendants’ motion to dismiss.  Plaintiffs contacted Trinity Relocation Group, LLC (“Trinity”), a broker for shippers and interstate carriers, regarding a move from their Ohio residence to their Florida residence. The plaintiffs provided Trinity with detailed dates and times that the move would need to be completed by due to a pending sale of their Ohio residence and their anticipated arrival at their Florida residence.  Trinity provided plaintiffs with a binding estimate for   $13,381.41 for 1,496 cubic feet of property (the “Binding Estimate”).  In its capacity as a broker, Trinity researched carrier options and ultimately recommended Defendant Rado to plaintiffs as the interstate carrier that would perform the move.  After Rado had loaded most of the plaintiffs’ possessions onto the truck, the Rado movers approached plaintiffs to renegotiate Rado’s Interstate Bill of Lading Contract (“Rado Contract”), now that they had a “better feel” of the amount of property they were moving.  The re-negotiated Rado Contract charged Plaintiffs $34,132.30, nearly three times the Binding Estimate, based in part upon an updated volume of items amounting to 3,800 cubic feet. The Rado movers told plaintiffs that this price was “final” if they “wanted their belongings delivered.” In addition, the Rado movers told Mr. Scheuer that his belongings would not arrive to his Florida residence by September 1, 2022, as previously promised.  As a result, “out of fear” that their possessions would not arrive on time, plaintiffs agreed to a $5,700 “expedited delivery charge.”  Despite the expedited delivery charge, plaintiffs’ property did not arrive in Florida on September 1, 2022.  Instead, it arrived two days later and with no crew to unload it.  The unloading crew arrived the next day, September 4, 2022, demanding the full balance of the Rado Contract, including the expedited delivery charge, before any property would be unloaded. Left with little option, plaintiffs complied and paid the full balance demanded.  Adding insult to injury, while unpacking their belongings, plaintiffs discovered that various items had been damaged. Plaintiffs thereafter filed suit against Rado for violations of 49 C.F.R. § 375.401 et seq. (Count I), the Carmack Amendment, 49 U.S.C. 14706 (Count II), and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq. (Count IV), and for fraudulent misrepresentation (Count III), and breach of contract (V).  Rado moved to dismiss all claims against it.  The court held that Count I under 49 C.F.R. § 375.401 was not preempted by Carmack Amendment, whose preemptive scope only extended to state common law causes of action but not “other federal claims.”  However, the Court did find Carmack preemption “clearly” applied to the plaintiffs’ breach of contract claim.  While a closer call in the Court’s view, it found Carmack likewise preempted the fraudulent misrepresentation and ICFA claims because they were not “sufficiently distinct from the contract of carriage.”  Accordingly, it allowed plaintiff’s claims under 49 C.F.R. 375.401 and the Carmack Amendment claim to survive the motion to dismiss. 

COVERAGE

Smallwood v. ACE Property & Casualty Ins. Co., 2024 WL 1742240, C.A. No. 3:23-cv-67 (E.D. Va. April 23, 2024).  This declaratory judgment insurance coverage action arose from an accident in which the plaintiff was injured when an individual was attempting to unload materials from a trailer.  Plaintiff was hired to oversee the transportation and delivery of materials to an Express Oil Change location that was under construction.  Plaintiff was acting in that capacity when he requested Alstop Trucking provide a flatbed tractor trailer and driver to assist him in picking up and transporting construction materials to the jobsite.  Due to limited space at the jobsite, each trailer had to be offloaded one side at a time.  In connection therewith, the “site supervisor” (non-Alstop employee) utilized a Bobcat skid steer to offload materials from the Alstop trailer.  While attempting to unload the materials from the Alstop trailer, the site supervisor caused the Bobcat to overturn and the materials fell off the Bobcat onto Plaintiff.  ACE insured Alstop under a Commercial Auto Liability Policy and the involved Alstop tractor trailer was insured under the ACE Policy.  Plaintiff made a claim for UM benefits under the ACE Policy.  The Court, in addressing potential UM coverage under the ACE Policy, found Plaintiff did not qualify as an “insured” under the ACE Policy because Plaintiff was not “using” or “occupying” the Alstop tractor or trailer at the time of the Accident.  Specifically, the Court found Plaintiff was not “using” the Alstop tractor trailer at the time of the Accident.  It noted Plaintiff was around 10 feet from the tractor trailer when the Bobcat tipped and was involved in transportation separate from—and nonessential to the use of—the tractor trailer.  Similarly, the Court found Plaintiff was not “occupying” the Alstop tractor trailer because he away from the tractor trailer and his actions in directing the Bobcat “were not ‘immediately related to the occupancy’ of the Alstop tractor trailer.”  As an additional or alternative ground, the Court held that the Bobcat was not an “uninsured motor vehicle” sufficient to trigger coverage under the ACE Policy’s UM endorsement.  For each of these reasons, the Court held the ACE Policy did not afford UM coverage under its clear terms, and accordingly dismissed the DJ action against ACE. 

Pious Trans, Inc. v. Certain Underwriters at Lloyd’s London, 2024 WL 1710171, Case No. 23A-PL-3044 (Ind. Ct. App. Apr. 22, 2024).  In this insurance coverage dispute, the Indiana Court of Appeals affirmed summary judgment in favor of the insurer under a physical damage insurance policy to the motor carrier.  In July of 2020, Pious Trans, Inc., which is owned and operated by Gagandeep Singh, hired Yadwinder Singh (“Singh”), who had been issued a New York Class A commercial driver’s license (“CDL”) approximately sixteen months previously. In December of 2020, Certain Underwriters at Lloyd’s, London (“Underwriters”), issued a physical-damage insurance policy to Pious (“the Policy”). In April of 2021, Pious added Singh and a tractor-trailer with a gross weight of over 26,001 pounds (“the Freightliner”) to their Policy coverage. In August of 2023, Singh was operating the Freightliner and was involved in a collision with another tractor-trailer. After Underwriters denied Pious’s claim arising from the collision, Pious, Gagandeep, and Singh (“Appellants”) sued the other driver for negligence and Underwriters and Pious’s insurance agent for breach of contract and bad-faith denial of their claim. Underwriters moved for summary judgment on the questions of coverage and bad faith, which motion the trial court granted.  The Underwriters Policy at issue included specific requirements for coverage, including that the vehicle be operated by a driver “who at inception of this Policy or at the date of hire, whichever is the later, provides documented evidence of an MVR not more than 60 days old or not older than the date of loss if the driver is involved in a claim showing that they: [….] 2. Have a minimum two (2) years (twenty-four (24) consecutive months) of Commercial Driver’s License experience, at the time of policy inception or date of hire, whichever is the later, driving similar equipment to that insured under this Policy.”  When Pious added the Freightliner as a scheduled vehicle and Singh as a scheduled driver, it incorrectly listed his hire date as April 1, 2021, instead of July 6, 2020.  Underwriters denied the claim arising from the August 3, 2021, accident, citing the lack of required 2 years CDL experience by Singh at the time the Policy issued.  The Court found that the Policy was not ambiguous in defining “commercial driver’s license” and that Singh’s Class E New York license was not equivalent to a CDL.  As such, Underwriters was entitled to deny coverage for the Accident and the appellate court affirmed the summary judgment ruling in favor of Underwriters. 

Harco Nat’l Ins. Co. v. Knowles, 2024 WL 979231, Case No. A23A1263, A23A1264 (Ga. Ct. App. March 7, 2024, review denied March 26, 2024).  In this insurance coverage declaratory judgment action, the Court agreed with the insurer that the loss was excluded from coverage under the automobile and CGL policies because it involved a work-related injury that fell within the exclusions within the respective policies.  The undisputed record shows that in the spring of 2018, Popwell began working for EKI as a “cut down man” in a commercial logging operation. His job was to operate a machine called a feller buncher to cut trees in a controlled manner so that they could be loaded onto trucks. He reported to work when and where directed by EKI, and he was paid every week based on the weight of the wood he cut. Walter Knowles was Popwell’s supervisor.  With respect to the details of the accident, Popwell testified that on May 3, 2018, he was working at a wooded job site along with Knowles and other personnel. Knowles determined the hours Popwell worked, which fluctuated depending on when they finished loading trailers with logs. According to Popwell’s deposition, around mid-day, he stopped work to eat lunch. He got in his personal vehicle to drive to a nearby store that sold fried chicken, and as he was leaving the logging area on a dirt road, he soon noticed that Knowles was operating a skidder and pushing a loaded truck that needed extra traction to navigate the unpaved road. Popwell put his vehicle in park (facing the skidder) to wait for the operation to finish; when Knowles got the loaded truck moving sufficiently, he turned the skidder around and headed in Popwell’s direction. As Popwell remained stationary in his vehicle, Knowles accidentally drove the skidder into and onto Popwell’s vehicle, causing multiple injuries to him.  Popwell initially received workers’ compensation payments from Forestry (EKI’s carrier) for a few weeks, but thereafter, a dispute arose regarding workers’ compensation coverage, and Popwell sued EKI and Walter Knowles. To get clarity as to its coverage obligations, Harco filed the present action seeking: a declaration that Popwell was acting within the scope of his employment at the time he was injured, that his injuries are compensable under the Workers’ Compensation Act (“the WCA”), and that Harco’s WCA exclusions in the policies issued to EKI preclude coverage.  The Court’s opinion focused upon Georgia-specific rules for injuries during a mid-shift lunch break.  It explained “[t]he Supreme Court of Georgia has clarified that even though eating lunch is not the actual work an employee is hired to do, an ordinary mid-day lunch break on the employer’s premises is still considered to be ‘in the course of’ employment for purposes of the WCA. This is because eating lunch at the workplace is an activity incidental to work and ‘reasonably necessary to sustain [an employee’s] comfort at work.’”  The Court noted the unrefuted testimony established that Popwell was sitting in his vehicle in the process of leaving the job site to go to lunch when he was hit by the skidder that was being operated in connection with the logging operations.  It further noted that Popwell had “not yet” left the logging area.  Putting all this together, the Court determined Popwell was “still in the logging area on his lunch break and was not otherwise engaged in a personal activity outside the scope of his employment.”  The collision was “a risk ‘reasonably incident’ to Popwell’s employment in the logging operation.”  As such, the injuries fell within the exclusions to coverage under the Harco policies. 

WORKERS COMPENSATION

Shock v. LAC Logistics, LLC, 2024 WL 1653528, C.A. No. 1:24-cv-83 (N.D. Ind. Apr. 16, 2024). In this action arising from an alleged on-the-job injury and alleged retaliatory discharge, the court granted plaintiff’s motion to remand, finding it lacked subject matter jurisdiction over the dispute. Plaintiff was employed by defendant as a CDL driver. Plaintiff claimed that in June 2023 he sustained an on-the-job injury for which he sought workers compensation benefits. Defendant denied the workers compensation claim. Thereafter, in August 2023, defendant directed plaintiff to drive a route from Ohio to North Carolina. Plaintiff alleges he refused, citing that he was over on his hours of service (“HOS”) and was required to rest. Plaintiff claims defendant advised him to run the route under the agricultural exemption to the HOS. Plaintiff claims the load did not fall within the agricultural exemption and again refused the load, following which the defendant fired him. Plaintiff filed a lawsuit in Indiana state court alleging two counts: (1) wrongful termination under the Indiana Workers Compensation Act; and (2) wrongful termination for refusing to engage in unlawful conduct. The defendant removed the action to federal court, citing the Motor Carrier Safety Act, 49 U.S.C. § 31101 et seq., as the sole basis of removal. The federal court sua sponte requested briefing on the issue of federal jurisdiction.  Plaintiff likewise moved to remand the case to state court. Defendant acknowledged “Plaintiff has relied exclusively on state law in bringing this action,” but nevertheless contended federal question jurisdiction exists because plaintiff’s refusal to accept the route was based on plaintiff’s belief that doing so would violate federal regulations.  Noting that the nature of plaintiff’s claims was solely for wrongful discharge under Indiana state law and that defendant’s “potential assertion that it complied with federal law is of no consequence” because defenses do not establish federal question jurisdiction, the court remanded the action to state court.