Hello and Happy Fall,

With the cold weather, the upcoming year-end, and project warp-ups, we certainly are in Q4. Hopefully you get some time to enjoy the fall colors before the leaves are just for the raking!

CAB has been out and about at various events this season. It has been great seeing many of you at conferences.

Thank you so much for your continued support.

Talk to you soon,  

Chad Krueger and Pam Jones 

CAB Live Training Sessions

Tuesday, November 14^th | 12p EST – VITAL/VITAL+

Tuesday, November 21^st | 12p EST – MC Safety

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.

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CAB’s Tips & Tricks: Motor Carrier Data Updates

In case you have not spent much time on VIN details, know that within the CAB Report, you can see inspection activity by unit beyond the individual fleet you are looking at. The Inspections / Accidents tab on the report shows inspection details down to the individual unit level.

Scrolling down to the Vehicles section allows you to dig into this data. Notice on the right by unit, our system shares if the VIN has been inspected before, after, or during the timeline of this fleet’s inspections with a different fleet.

THIS MONTH WE REPORT

Trucking’s Annual Congestion Costs Top $94.6 Billion. Traffic congestion on U.S. highways added $94.6 billion in costs to the trucking industry in 2021 according to the latest Cost of Congestion study published by the American Transportation Research Institute (ATRI). Read more…

Trucker out-of-service orders hit all-time high. New-entrant out-of-service (OOS) orders issued to carriers will surge to an all-time high in 2023, according to the latest government data, a trend that has mirrored the dramatic increase in new-carrier operating authorities issued since 2020. Read more…

More carriers likely to fail in muted fall freight season says ATA’s Chief Economist Bob Costello. American Trucking Associations Chief Economist shares his economic outlook at the 2023 Management Conference & Exhibition in Austin.The bankruptcies will be “other people’s pain for our gain.” Read more…

US House Panel Evaluates New Truck Excise Tax Repeal. “Not only will repealing this federal excise tax deliver upfront cost savings for truckers and small businesses, but it will also provide downstream supply chain and cost-saving benefits for consumers,” Rep. Chris Pappas (D-N.H.), a co-sponsor, said recently. Read more…

FMCSA extends comment period for carrier safety rating system revamp. Owner-operators and others in trucking are getting more time to comment on the FMCSA’s information-seeking advance notice of proposed rulemaking related to a potential revamp of its carrier rating system. Read more…

Convoy cancels all shipments, load board is empty, announcement upcoming. A change is brewing in the next day or two at Seattle-based digital brokerage Convoy, with reports Wednesday of all loads being canceled–the company is “taking several necessary steps to prepare Convoy’s business for a transition that we will have more details.” Read more…

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

AUTO

Flores v. Allen Henderschiedt Trucking, Inc., 2023 U.S. Dist. LEXIS 182600 (S.D. Tex. Oct. 11, 2023). In this personal injury action, the defendant motor carrier and its driver moved the court to exclude the following: evidence of a previous and unrelated speeding citation, evidence of claims for negligent entrustment and/or gross negligence, evidence related to the Federal Motor Carrier Safety Act (FMCSA). The motor carrier and driver also sought the prohibition of two medical billing affidavits. The court was unwilling to issue a blanket order precluding the introduction of evidence regarding the driver’s unrelated speeding citation and reference to the FMCSA. Next, the court allowed plaintiff to move forward with gross negligence and negligent entrustment claims, stating that at the appropriate time the court will decide whether to instruct the jury accordingly. Finally, the court declined to decide on the affidavits in question and instead reserved its decision after the parties fully advance their positions at trial.

Prodigies Child Care Mgmt. v. Cotton, 2023 WL 6611014, No. S22G0914 (Ga. Oct. 11, 2023). In this appeal of a ruling granting summary judgment in a personal injury action filed by an injured truck driver, the Georgia Supreme Court vacated the Court of Appeals’ application of the “special circumstances exception” to the general rule that employees do not act in furtherance of an employer’s business during a lunch break commute. The court remanded the matter for the lower court to apply the proper respondeat superior test. The injured truck driver filed a lawsuit against a childcare facility and its employee after the employee collided with the truck driver during the employee’s lunch break commute back to work. The evidence showed that, at the time of the collision, the employee was looking at her phone and attempting to contact the childcare facility to notify it that she would be late in her return from lunch. The truck driver alleged that the childcare employee was acting in furtherance of the childcare facility’s business at the time of the accident and that the facility was, therefore, liable under a theory of respondeat superior. The trial court granted the childcare facility’s motion for summary judgment, finding that the employee was not acting in furtherance of the facility’s business at the time of the accident. The truck driver appealed, and a divided panel of the Court of Appeals found that there was sufficient evidence to raise a question of fact under the “special circumstances exception” to the general rule that an employee does not act in furtherance of an employer’s business during a lunch break commute. This “special circumstances exception” had been applied by the Court of Appeals in prior decisions where an employee was on the phone for business-related calls at the time of an accident. Relying on the exception, the Court of Appeals reversed the trial court’s grant of summary judgment. The Supreme Court reversed, clarifying that “the so-called ‘special circumstances exception’ is merely an application of the doctrine of respondeat superior—not a separate doctrine or an ‘exception’ to respondeat superior” and disapproving the language relied upon in the prior Court of Appeals’ rulings. The court concluded that the question of whether respondeat superior attached instead depended upon whether the employee was acting in furtherance of her employer’s business and within the course and scope of her employment at the time of the tortious act, regardless of the timing of a commute during a lunch break or so-called “special circumstances” giving rise to an exception. While recognizing that the general rule that an employee’s travel to or from work is generally not within the scope of employment for respondeat superior, the court determined that it was still necessary to determine whether the employee did something else at the time of the accident that was allegedly within the scope of employment. Regardless, the court held “that there is no need—and it is not proper—to apply a separate test to determine whether the acts in question are so-called ‘special circumstances.’ The proper test is the traditional respondeat superior test: whether the employee was acting in furtherance of her employer’s business and within the scope of her employment at the time she committed the tortious act.”

Handley v. Werner Enters. Inc., 2023 WL 6628921, No. 23-10587 (11th Cir. Oct. 11, 2023). In this tort action, Handley sued Werner and ACE American Insurance Company following Handley’s collision with a Werner tractor trailer. A jury returned a verdict in Handley’s favor, and Werner moved for Judgment as a Matter of Law and for a New Trial. The district court denied these motions, and the Eleventh Circuit affirmed on appeal. In affirming the lower court’s denial of the Judgment as a Matter of Law, the panel conceded that there was conflicting evidence regarding the accident. However, it concluded that, viewing the evidence in the light most favorable to Handley, there was sufficient evidence to support the jury’s conclusion that Werner and its driver were negligent. The court also found that Werner had failed to meet its burden to assert an argument under the avoidable consequences affirmative defense because it never stated or proved the elements of the defense. Finally, in affirming the lower court’s denial of Werner’s motion for a new trial, the court found that Werner’s argument that ACE was inadvertently included on the verdict form caption did not necessitate a new trial and, furthermore, that the jury had been properly instructed to not consider insurance during its deliberations.

Brooks v. AK Creation, LLC, 2023 WL 6406367, No. 3:22-cv-103 (M.D. Ga. Oct. 2, 2023). In this negligence action following a collision, the court granted summary judgment in favor of a motor carrier, AK, as to the plaintiff’s claim for punitive damages. The plaintiff, Brooks, was involved in a collision with AK’s driver, after the driver ran a red light due to defective brakes on the tractor trailer. Brooks suffered injuries, and he and his wife asserted claims for negligence and loss of consortium, respectively, against the driver and AK. Prior to the wreck, the evidence showed that the driver complained of the tractor trailer’s brakes two or three times to an associate of AK. However, the vehicle was inspected and passed a report. The wreck with Brooks occurred three days later. Following the collision, the Georgia Department of Public Safety determined four of the brakes on the tractor trailer were inoperative. Thus, on this finding, the plaintiffs asserted a claim for punitive damages against AK. In granting AK’s motion for summary judgment as to the punitive damages claim, the court found that there was no evidence that AK personally learned of any defect with the brakes in the three days between the inspection and the accident or had any reason to doubt the veracity of the inspection report. Thus, the court found the record was void of any evidence to support an award of punitive damages and, accordingly, granted summary judgment as to that claim.

Villagran v. Freightbull, Inc., 2023 WL 6690700, No. 22-2159 (E.D. Pa. Oct. 12, 2023). Following a fatal trucking accident, the plaintiff, as administrator of the decedent’s estate, filed a lawsuit asserting claims for direct and vicarious liability against the trucking company and its driver. Following the close of discovery, the trucking company moved for summary judgment as to punitive damages and moved to dismiss the direct claims asserted against it. The accident involved the tractor trailer pulling out into a highway at night, stopping briefly, and engaging its left turn signal before crossing two lanes of travel. Before the truck could complete its turn, the plaintiff’s decedent crashed into the side of the trailer. The decedent’s widow alleged negligent entrustment, supervision, hiring, and retention, and specifically alleged that the motor carrier failed to properly train or supervise its driver as a basis for asserting a claim for punitive damages. In analyzing the punitive damages claim, the court found that, as to the driver, a video of the truck pulling into the roadway supported a possible argument that he misjudged the proximity of the decedent’s vehicle but that it showed nothing which warranted an award of punitive damages. As to the company, the court found that the allegations of the plaintiff pointing to the company’s safety officer’s lack of education, the lack of a CDL on the part of the officer, and the officer having only three years of trucking safety experience were not enough to demonstrate egregious conduct warranting an award of punitive damages. Moreover, the court found that the lack of training for the driver as to trip planning also did not amount to egregious conduct. Finally, the court found that the fact that the company did not investigate its own accidents also did not amount to conduct justifying punitive damages. As to the direct claims against the trucking company, the court declined to find that there was a blanket rule justifying dismissal of such claims given the lack of punitive damages. However, it instead analyzed the claims under a Rule 403 balancing test and found that dismissal of the direct liability claims was indeed warranted. The court held that “[t]he criticism leveled at [the company’s] in-house training program seems peripheral, and the charges that it failed to train drivers on pre-trip planning or conduct accident investigations are wholly unrelated to the accident in this case.” The court went on to find that “the previous record of its driver reflects at most two minor collisions resulting in property damage, with only seven citations in 17 years of professional driving.” “The probative value of this evidence is minimal, as compared to the prejudice that follows from allowing the jury to consider evidence that would otherwise be excluded as irrelevant and prejudicial.” Thus, the court dismissed the Plaintiff’s claims for negligent and reckless hiring, training, supervision, and entrustment against the company.

Perez v. U.S. Xpress, Inc., 2023 WL 6393899, No. 23-50146 (W.D. Tx. Oct. 2, 2023). In this parking lot truck bump up personal injury action, the Fifth Circuit affirmed the district court’s grant of summary judgment to the defendant motor carrier and its driver. The plaintiff, Perez, alleged that he was asleep in the top bunk of his truck at the time the defendant driver bumped into his parked truck in a parking lot. Perez then alleged that he woke up, got scared, and jumped from the bunk, injuring himself. Perez then filed suit, alleging various negligence theories against the defendant company and driver. The defendants moved for summary judgment, and the district court granted it, finding a lack of proximate cause between the collision and the plaintiff’s injuries. In affirming the grant of summary judgment, the Fifth Circuit panel noted that, under Texas law, “cause in fact is not established where the defendant’s negligence does no more than furnish a condition which makes the injuries possible.” The court concluded that, while the plaintiff had allegedly injured his back when he jumped from the top bunk, he did so after the impact from the defendant’s truck and that his decision to jump was a deliberate one that he made on his own. Thus, finding no genuine dispute of material fact as to causation, the court affirmed the grant of summary judgment.

BROKER

Heselton v. Espinoza, 2023 WL 7003467, No. 21-cv-1592 (S.D. Ill. Oct. 24, 2023). In this negligence action filed by plaintiffs Stacey and LaNette Heselton against driver Pedro Espinoza; his employer, Roline Express; and Flock Freight, the broker of the subject load transported by Espinoza, the court granted the plaintiffs’ motion to dismiss without prejudice. Plaintiffs filed their suit following an accident between Stacey Heselton and Espinoza in Effingham, Illinois. Plaintiffs asserted theories of negligence against Espinoza and for vicarious liability and negligent hiring against Roline and Flock. Following extensive discovery, the plaintiffs moved to dismiss without prejudice under Rule 41(a)(2), seeking to instead litigate the case in California where they had already filed a second lawsuit against the Defendants. The Defendants opposed the motion on the grounds that the parties had conducted extensive discovery and had expended a significant amount of resources litigating the case. Furthermore, the Defendants relied upon the pendency of Flock’s motion to dismiss based on FAAAA preemption in opposing the plaintiffs’ motion to dismiss while also asserting that the Plaintiffs were forum shopping. Flock argued that the Plaintiffs were attempting to avoid the pending motion to dismiss and the Seventh Circuit’s recent decision in Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453 (7th Cir. 2023) (finding that plaintiffs’ claims were barred by FAAAA preemption) as opposed to the Ninth Circuit’s ruling in Miller v. C.H. Robinson, 976 F.3d 1016 (9th Cir. 2020) (allowing such claims against a broker under the FAAAA’s safety exception to preemption).  The Defendants argued this demonstrated an intent on the part of the plaintiffs to seek a more favorable outcome in California. The plaintiffs represented to the court that California was the more convenient and appropriate venue given that the Defendants were located in California and given the presence of witnesses to the case in California. In analyzing the arguments, the court found that the relevant factors weighed in favor of voluntary dismissal in favor of the plaintiffs because that the case was still in the discovery stage and trial was not set until March 2024. The court also found that the Defendants would not be subjected to “plain legal prejudice” by the dismissal of the action and that, even though the matter had been pending since December 2021, the record did not support a finding of excessive delay or a lack of diligence on the part of the plaintiffs. Finally, the court held that it was not clear that the plaintiffs were engaged in forum shopping but that they were instead pursuing their claims in two jurisdictions.

CARGO

Aeronet Worldwide, Inc. v. AB&M Interstate Servs., Inc., 2023 U.S. Dist. LEXIS 181617, No. 6:22-cv-01081 (N.D. N.Y. Oct. 10, 2023). In this cargo claim, the plaintiff, Aeronet, alleged that defendants AB&M Interstate Services, AB&M Logistics, and Mobi Express were all agents of each other. Aeronet alleged that it had arranged for the defendants to transport two pallets of automobile part assembly kits, which the defendants received but never delivered as required under an agreement between the parties. Aeronet alleged that, by agreeing to transport the cargo and by having received the cargo, the defendants were acting as motor carriers and were carriers within the meaning of the Carmack Amendment. Following Mobi’s failure to answer or otherwise plead, Aeronet moved for entry of a default judgment. While finding that Aeronet had met the procedural requirements for entry of a default judgment, the court held that Aeronet’s state law claims were preempted under the Carmack Amendment. In analyzing Aeronet’s Carmack claim, the court held that Aeronet’s allegations lacked requisite specificity as to the relationships between it and the defendants as well as that of Mobi to the other defendants. Ultimately, the court found that Aeronet failed to plausibly allege a relationship between Defendants and instead merely relied on conclusory allegations in its complaint. The court found that Aeronet must offer the defendant fair notice of what its claim was and the grounds upon which it rested so that Mobi could answer and prepare for trial. The court found that Aeronet failed to meet this requirement because it did not supply any documentary evidence or allege any particularized facts as to the relationship of the parties or their assent to the contract. Moreover, the court observed that the other AB&M defendants had denied Aeronet’s allegations and asserted crossclaims of their own against Mobi. Finding that Mobi could potentially share in these defenses, the court declined to enter a default judgment against Mobi but left open the possibility that Aeronet could refile its motion at a later time.

Shemes v. U.S. Moving Serv. LLC, 2023 U.S. Dist. LEXIS 176910, No. 2:23-cv-02084 (D. Kan. Oct. 2, 2023). In this case involving alleged damages to household goods during an interstate move, the court denied the defendants’ motion to transfer the matter to another forum, denied a motion to dismiss under Carmack preemption as to one defendant, but granted the motion as to the other defendant. The plaintiffs sued US Moving and USA Logistics under state contract, tort, and consumer protection causes of action. The plaintiffs contracted with US Moving to arrange for the transportation of their property, and US Moving subsequently arranged for USA Logistics to transport the property. Following several payments made to US Moving and USA Logistics and the alleged delay of the delivery, the plaintiffs allegedly discovered, upon the delivery of the property, that $330,000 worth of it had been damaged or lost. Following the plaintiffs’ suit, the defendants moved to transfer the matter to California, citing a forum-selection clause in the bill of lading issued by USA Logistics to the plaintiffs. The court rejected this argument, finding that the forum selection clause did not mention US Moving and that USA Logistics had failed to sever the claims asserted against it from those asserted against US Moving. Moreover, the court found that the forum selection clause failed to cite to a federal court in California to which the matter should have been litigated and that it, thus, failed to comply with the requirements of 28 U.S.C. § 1404(a). Regarding the Motion to Dismiss under Carmack preemption, the court found that the complaint did not operatively show that U.S. Moving was a carrier and that, given its role as only the apparent broker to the action, Carmack preemption could not be held to apply. However, the court found that USA Logistics was a carrier and that any claims asserted against it for the damage to the property were indeed within the scope of Carmack preemption. The court, thus, dismissed the state law claims against USA Logistics, despite the plaintiffs’ argument that the bill of lading issued by USA Logistics was secured fraudulently and under duress. However, the court did allow the plaintiffs leave to file an amended complaint to assert a Carmack claim against either or both of the defendants.

Schneider Nat’l Carriers, Inc. v. Kaba & Sons, LLC, 2023 WL 6929334, No. 4:23-cv-00792 (M.D. Pa. Oct. 19, 2023). In this action following the total loss of goods after a trailer caught fire, the court granted a default judgment for Schneider National Carriers (SNC) after Kaba, the motor carrier, failed to answer or otherwise plead. Schneider and Kaba were parties to an agreement where Kaba was to provide transportation services for SNC and its customers. SNC tendered a shipment of certain goods to Kaba. However, Kaba failed to inspect the trailer before transporting the load. Two of the tires on the trailer were “low and bald,” and an accident occurred, causing the trailer and its contents to catch fire. Following payment to its customer for the loss of the cargo, SNC filed this action against Kaba seeking indemnification under the parties’ contract for the value of the cargo, as well as a claim under the Carmack Amendment. Following Kaba’s failure to answer or otherwise appear, SNC moved for a default judgment. The court found that SNC’s contract claim was preempted under federal law but that it had properly alleged its Carmack claim. The court also found that SNC had properly pled breach of contract for the damage to its trailer given Kaba’s failure to inspect it prior to transport. Ultimately, the court awarded damages to SNC for the value of the cargo and the value of its trailer.

COVERAGE

Prime Ins. Co. v. Wright, 57 F.4th 597 (7th Cir. 2023) (cert. denied Oct. 2, 2023). The U.S. Supreme Court declined to review the Seventh Circuit’s decision in this insurance coverage dispute, which was previously reported in the January 2023 edition of CAB Case Summaries. Thus, the Seventh Circuit’s ruling that the MCS 90 endorsement required the insurer to satisfy a default judgment entered against the motor carrier will stand.

Stein v. Farmers Ins. Co. of Ariz., 2023 U.S. App. LEXIS 28053, Nos. 22-55356 & 22-55414 (9th Cir. Oct. 23, 2023). In this bad faith action, the Ninth Circuit affirmed a jury verdict finding that the insurer engaged in bad faith, breached its contract, and violated New Mexico’s Unfair Insurance Practices Act in handling the claimant’s personal injury claim. The court found that the evidence supported the premise that the insurer engaged in unfounded delay, having not investigated the claimant’s injuries for five months after the accident, having failed to conduct an independent medical examination regarding the claimant’s injuries, and having rendered a coverage position despite its failure to adequately investigate. Thus, the court found that the evidence supported the jury’s finding that the insurer’s two-year long investigation constituted unfounded delay and supported a finding of bad faith. The court also found that the jury was reasonable in concluding that the insurer’s actions amounted to a violation of the Unfair Insurance Practices Act in handling the claims. Thus, the Court declined to overrule the district court’s denial of the insurer’s Rule 60 motion to alter the judgment and also affirmed the lower court’s ruling regarding its post judgment interest calculation.

CSX Transp., Inc. v. General Mills, Inc., 82 F.4th 1315 (11th Cir. 2023). In this matter originally arising from an injured General Mills’ employees’ negligence action against CSX, the Eleventh Circuit affirmed and reversed in part the district court. The employee sued CSX alleging negligence after several railcars ran over and severed his leg on a sidetrack. Following its settlement with the worker, CSX sued General Mills for breach of contract or, alternatively, under a theory that General Mills was jointly liable and required to indemnify it for the damages paid to the worker pursuant to a “Sidetrack Agreement” between the parties. The Agreement specified that General Mills would have the option to conduct its own switching (i.e., moving) of railcars. The court granted General Mills’ motion to dismiss the breach of contract claim and its motion for summary judgment on the other claim. The 11th Circuit panel partly reversed and partly affirmed the district court rulings against CSX, finding that, while the Sidetrack Agreement did not require General Mills to indemnify CSX if General Mills was not at all at fault, CSX could bring evidence to show that General Mills was partially responsible for its employee’s injuries. In so holding as to the latter claim, the court found that Georgia’s “vouchment” statute was central to its analysis. While General Mills argued that the statute bound CSX, under the doctrine of res judicata, to previous judgments in the underlying injury suit, CSX argued that it only bound General Mills. The court found that it was undisputed that CSX vouched General Mills into the underlying suit, that previous state Supreme Court rulings on the vouchment statute had only considered whether the vouchee was bound by it, not the voucher, as it is typically the voucher that seeks to bind the other party, and that this was an unusual case in that the vouchee is seeking to bind the voucher. Ultimately, the court agreed with CSX that the lower court had erred in misinterpreting the statute. “In other words, by design, vouchment empowers the voucher, not the vouchee.” “General Mills’s concern that vouchment, if it only binds the vouchee, tends to work against vouchees is simply a feature of the doctrine.” However, the court affirmed the district court’s dismissal of CSX’s first count for breach of contract, in which CSX had argued that its agreement with General Mills required the food company to indemnify the railroad for any injury, even if General Mills had no fault. The court found that the agreement did not “expressly, plainly, clearly, and unequivocally” provide for such indemnification as would be required under Georgia law.

SYNY Logistics, Inc. v. Great Lakes Ins. SE, 2023 WL 6388233, No. 22-cv-764 (N.D. Ill. Sept. 30, 2023). In this declaratory judgment action arising from first-party physical damage coverage, the court granted the insurer’s motion for summary judgment, finding that a trucking company’s driver did not have the experience required under the insurer’s policy to warrant coverage. SYNY, a motor carrier, had a driver who was involved in an accident. SYNY filed a claim with its insurer, Great Lakes. Under the policy, Great Lakes did not have to “indemnify [SYNY] for loss or damage to any Automobile … unless the Automobile is 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 MRV no older than three months showing that they: … a) a minimum of two (2) years continuous driving experience, within thirty-six (36) months of the policy inception date or date of hire, whichever is the later, driving equipment similar to or driving trucks transporting cargo similar to that insured under this Policy; OR b) a minimum of (1) years continuous driving experience, within twenty-four (24) months of the policy inception date or date of hire, whichever is the later, driving equipment similar to or driving trucks transporting cargo similar to that insured under this Policy providing there are no violations and no at fault accidents.” Under this language, and specifically the minimum 1-year requirement under b), Great Lakes denied coverage because SYNY’s driver did not have the requisite one year of experience. The court agreed, finding that the driver had only 354 days of experience prior to the accident. Despite the driver being only 9 days short of the requisite experience and despite SYNY’s argument that the driver had obtained his license within the 24-month window provided by the policy, the court found there was no genuine dispute of material fact that the driver needed to have one year of experience at the time of an incident for the indemnity obligation to be effective. Thus, the court granted summary judgment in favor of Great Lakes while also dismissing SYNY’s claims for breach of contract and under Ill. Comp. Stat. 5/155(1)(b).

WORKERS COMPENSATION

No cases of note to report.