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Bits & Pieces

CAB BITS & PIECES October 2022

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First off, our thoughts and prayers are with all those affected by Hurricane Ian. Our industry is strong and I’m sure many are helping their family, friends, and clients work through the devastation of the natural disaster. We look forward to a speedy recovery and a return to normalcy.

Much of the country is cooling as Fall seems to be upon us. Pumpkin spice everything is available, so enjoy it while you can.

Hopefully, Mike Sevret and I will have had a chance to connect with many of you while at the Motor Carrier Insurance Education Foundation (MCIEF) event in Orlando on October 5-7. If not, please feel free to reach out to us directly.

Have a great October!

CAB Live Training Sessions

Please Note! We have transitioned our web meeting resource from Go to Webinar to Zoom. Due to this switch, we encourage you to sign into the webinar a little earlier than normal to ensure there are no connectivity issues.

Tuesday, October 11th, 12p EST: Mike Sevret will present on CAB for Agents and Brokers. Learn about enhancements to the CAB ecosystem that can help drive growth and save time. Identify ways to use CAB data to change the conversation with markets and advocate for fleet customers and prospects. Use CAB List™ to monitor customers and ‘drive the wedge’ with prospects. Learn tips on how to leverage the BASICs Calculator™ and CAB’s Lead Generation tool, SALEs™.

Tuesday, October 18th, 12p EST: Chad Krueger will provide a review of the BASICs Calculator. The BASICs Calculator is a very powerful safety and loss control tool that allows the user to identify pain areas within a motor carrier’s fleet. Agents and Underwriters find great value as it can help clarify how a motor carrier is progressing. Run scores simulations, forecasts, and more!

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: Chameleon Carriers and Company Representatives

CAB’s Chameleon Detector has been a mainstay in the industry to help CAB Users understand the interrelationship between entities. Our Chameleon Detector is designed to help our users better understand some of the following questions: Does the motor carrier have additional divisions? Might the motor carrier have previously operated under a different name? Was there a merger between entities? Could there be a fraudulent representation? Is there a Freight Forwarder operation?

Remember, the Chameleon Carrier Detector can also help identify matching company representatives. Company Representatives become of value when your standard search has been run. From there, you can click the Chameleon Carrier® icon and the Chameleon Carrier® Report will identify if a similar name is also identified, which can warrant additional investigation and understanding.

screenshot of carrier central interface
screenshot of sample data from chameleon carrier report

Incorporating a motor carriers’ Representative into our Chameleon Carrier® search algorithm has created additional clarity for our users. We’re happy to provide this feature and we know it will help provide clarity when searching motor carriers. 

We at CAB are constantly striving to improve our tools and resources to create value for our users. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are customer driven. Our goal is to help you Make Better Decisions!

THIS MONTH WE REPORT:

Health & Safety

Investing in Safety: The FMCSA has announced $80 Million in grant awards to make our trucking industry safer. The High Priority grants provide financial assistance to supplement motor carrier safety initiatives that impact the movement of hazardous materials, target unsafe driving, demonstrate new safety technologies, conduct safety data improvement projects and more. Read more

It’s not over yet. Covid waivers exempting a subset of truck drivers from maximum drive-time limits are extended through October 15. Read more

In the meantime, the Federal Motor Carrier Safety Association (FMCSA) is using feedback from a September comment period to see whether the waivers have had an impact on safety. Read more

Public comment period: The FMCSA is asking for comment on a proposal to require electronic identification for commercial vehicles, communicating wirelessly to federal or state motor carrier safety teams on request. Read more

Get the numbers: The Commercial Vehicle Safety Alliance (CVSA) International Roadcheck numbers are out. CVSA-certified inspectors conducted nearly 60,000 inspections May 17-19 in the US, Canada, and Mexico and placed more than 12,000 commercial motor vehicles out of service. Nearly 4,000 drivers were also placed out of service. Read more

Marketplace

Trucking operational costs reached a 15-year high in 2021, according to the American Transportation Research Institute. The organization reports a 13% increase in the cost of operations from 2020, with the largest increase reported in the cost of fuel. CCJ’s 10-44 reports on the details

Electronic Logging Devices: The FMCSA is ready to consider potential changes to electronic logging devices in pre-2000 model engines, ELD malfunctions, and more. The older models were initially exempted from current regulations, but we are seeing movement on this topic. Read more

Freight shipments: The Cass Freight Index shows that freight shipments hit an all-time high in August. Experts cite a shift from spot to contract, and other factors such as China emerging from lockdowns and pre-holiday inventory increases. Read more

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

AUTO

Swift Transp. Co. v. Carman, 2022 Ariz. LEXIS 243, CV-20-0119-PR (Ariz. Aug. 23, 2022).  In this appeal, the Arizona Supreme Court set forth the standard for an award of punitive damages.  Citing precedent, the court held for punitive damages to be awarded, something rising to the level of an “evil mind”, “intent to cause harm motivated by spite or ill will” or “conscious disregard of a substantial risk of harm to others” is required.  Thus, there is an intent to harm element or a conscious disregard of a substantial risk of harm to others that must be met before punitive damages are appropriate.  A truck driver’s failure to reduce speed to avoid hydroplaning and losing control of his vehicle and his failure to direct or warn incoming traffic or place out traffic warning devices per the FMCSRs after he ran off the road did not rise to the level necessary to submit the issue of punitive damages to the jury. 

Mason v. McGuffey, 2022 U.S. Dist. LEXIS 150952, C.A. No. 2:20-cv-320 (M.D. Ala. Aug. 23, 2022).  A motor carrier and its driver were granted partial summary judgment on various claims arising from an accident that occurred while the tractor-trailer was either parked on the shoulder of an on-ramp to the interstate or while slowly moving from the shoulder into the lane of travel.  The plaintiff sued the motor carrier and the driver, alleging claims for negligence/wantoness; (2) respondeat superior; (3) negligent/wanton hiring, training, supervision and/or retention; (4) negligent/wanton supervision of the maintenance, operation, service, and/or repair of the tractor trailer; and (5) negligent/wanton entrustment.  At the time of the Accident, the driver had been an employee of the motor carrier for four months and had been a truck driver for thirty years.  Before hiring the driver, the motor carrier examined his motor vehicle record, his pre-employment screening program record, and his prior employment history.  The motor carrier did not provide training for its truck drivers on how to operate tractor trailers, but only hires those with extensive experience in the field. As an initial matter, the plaintiff acknowledged all claims based upon alleged wanton conduct and negligent maintenance should be dismissed.  The court then held the negligent entrustment cause of action should be dismissed because there was insufficient evidence of the driver’s incompetence to operation a tractor trailer, with the court citing to the fact that the driver had been employed as a truck driver for thirty years and had maintained his CDL for approximately twenty years, during which time he had no speeding tickets or moving violations rising to the level of that recognized by Alabama authorities as establishing incompetence.  Having determined that the driver was not incompetent, the court then dismissed the negligent hiring, training, supervision, and/or retention claims, noting that to succeed on these claims under Alabama law, one most establish by affirmative proof that the employer knew or reasonably should have known of the incompetence, but “[t]here can be no knowledge, actual or otherwise, of something that does not exist.” 

Rayner v. Claxton, 2022 Tex. App. LEXIS 6651, C.A. No. 08-20-00145 (Tex. Ct. App. Aug. 31, 2022).  In this far-ranging opinion, the Texas Court of Appeal reversed the trial court’s multi-million-dollar award, including both compensatory and exemplary damages, and ordered a new trial on a limited issue.  First, the court held a member-manager of an LLC was not individually liable for an accident caused by a truck driver employed by the LLC.  Despite her testimony that she took responsibility for the accident, the court held that testimony did not impart a duty upon her individually where one did not otherwise exist under law and accordingly there was no basis of liability against the member-manager.  While the LLC had breached its duty by having a vehicle with out-of-service violations on the road, and it was foreseeable that the condition of the truck could cause harm, the evidence was insufficient to prove that the condition of the truck was a cause-in-fact of the occurrence and therefore there was no basis of liability for the LLC under a negligent maintenance theory of liability.  Likewise, the appellate court found there was no evidence to support a negligent entrustment theory of liability under which the LLC could be held liable.  The court also held there was insufficient evidence to establish an exemplary damages award against the LLC because its liability was based solely upon the vicarious liability of the driver.  Last, the court held the evidence did not support a finding that the driver, who deviated from the permitted route with his oversized load and struck a bridge, was grossly negligent, as the evidence did not support the inference that he discovered his mistake and yet continued traveling for several miles without looking for a place to stop.  The court remanded the case for a new trial against the driver and the LLC under a simple negligence and respondeat superior theory of liability, finding the trial court improperly submitted to the jury a single, broad-form liability questionnaire that included theories of liability for which there was insufficient evidence, “leaving doubt as to which theories the jury based its verdict, and gave no or inadequate instructions or definitions regarding [the LLC’s} vicarious liability.”

Finley v. Mora, 2022 U.S. Dist. LEXIS 157305, C.A. No. 20-11739 (E.D. Mich. Aug. 31, 2022).  In this case brought under Michigan’s no-fault auto insurance regime, the court granted summary judgment in favor of defendants.  Specifically, the court held the plaintiff’s treating physician’s opinion on causation was inadmissible because it was an etiological diagnosis based solely on the plaintiff’s complaints and plaintiff’s description of his medical history that did not consider alternative explanations for the plaintiff’s symptoms, and there were not sufficient indicators of reliability to support the treating physician’s opinion on medical causation. 

Germinaro v. Null, 2022 U.S. Dist. LEXIS 153885, C.A. No. 3:22-cv-115 (M.D. Ala. Aug. 26, 2022).  The Alabama federal court determined that a putative UIM carrier was a nominal party and accordingly its citizenship need not be considered for purposes of diversity jurisdiction.  In so ruling, the court affirmed the Broyles rule, which holds insurance companies should be considered real parties in interest only when they (1) have “become subrogated to the rights of their insured after payment of the loss,” (2) are “defending actions brought directly against them,” or (3) they “must assume primary and visible control of the litigation.”  In this instance, the court found the UIM carrier did not fall within any of the three noted exceptions and therefore was to be treated as a nominal party for purposes of diversity jurisdiction. 

Anthony v. Alvarez, 2022 U.S. Dist. LEXIS 162515, C.A. No. 7:20-cv-191 (M.D. Ga. Sep. 9, 2022).  In this case arising from a motor vehicle accident, the court dismissed negligent hiring, training, supervision, and entrustment causes of action against a motor carrier.  The court explained that under Georgia law, where an employer motor carrier admits vicarious liability and absent evidence supporting a meritorious claim for punitive damages against the motor carrier premised upon the motor carrier’s independent negligence, negligent hiring/training/supervision/and entrustment causes of actions must be dismissed.  

BROKER

Ortiz v. Ben Strong Trucking, Inc., 2022 U.S. Dist. LEXIS 156008, C.A. No. CCB-18-3230 (D. Md. Aug. 29, 2022).  A Maryland federal court held as a matter of law that an entity holding dual licensure as a broker and motor carrier operated as a broker in the disputed transaction.  The court found the evidence presented at the summary judgment stage established the entity held brokerage authority during all relevant times, held itself out to the shipper as a broker, not motor carrier, did not accept responsibility for the transportation of the freight, and that its failure to re-register as a broker post-MAP-21 was immaterial on the question of motor carrier versus broker.  As such, it could not be held vicariously liable for the negligence of the motor carrier’s driver.  The court rejected the broker’s argument that FAAAA preempted the negligent hiring claims against it, citing the safety exception to FAAAA.  Last, the court found there was a question of fact precluding summary judgment on the negligent hiring cause of action against the broker. 

CARGO

Beecher’s Handmade Cheese, LLC v. New Sound Transp., LLC, 2022 U.S. Dist. LEXIS 152984, C.A. No. 21-12809 (D.N.J. Aug. 25, 2022).  In this lawsuit arising from a rejected shipment of cheese, the shipper sued the company it contracted with for the transportation (Freezepak) as well as the delivering motor carrier (New Sound).  The operative pleading alleged a breach of contract claim against Freezpak and a Carmack claim against both Freezpak and the motor carrier.  Despite Freezpak being a transportation broker only, the court found the Complaint alleged facts sufficient to give rise to a Carmack claim against Freezpak because it alleged facts from which a jury could conclude that Freezpak “took responsibility for the transportation of the subject cargo” thereby subjecting it to liability as a carrier under Carmack. The court also noted that the question of whether a party has accepted responsibility for the shipment is “ultimately one of fact.”  Accordingly, the motion to dismiss the Carmack claim was denied.  With respect to the breach of contract claim, the court found the Complaint sufficiently alleged facts to avoid dismissal at the pleading stage, but nevertheless sua sponte requested supplemental briefing as to whether the breach of contract claim is preempted by Carmack. 

Von Der Ahe v. 1-800-Pack-Rat, LLC, 2022 U.S. Dist. LEXIS 148787, C.A. No. 3:21-cv-2526 (N.D. Tex. Aug. 19, 2022).  An interstate household goods mover prevailed on its motion to dismiss state common law causes of action for violation of the Texas Deceptive Trade Practices Act, common law breach of the duty of good faith, and deceptive practices under the Texas Insurance Code, with the court agreeing all such causes of action were preempted by the Carmack Amendment. 

Hadas Benhamou v. Moving Sols., LLC, 2022 U.S. Dist. LEXIS 152179, C.A. No. 21-10823 (E.D. Mich. Aug. 24, 2022). A Michigan federal court denied a household goods mover’s motions to dismiss based upon a forum selection clause.  The court first denied the 12(b)(3) motion, finding that rule was not the proper mechanism by which to enforce a forum selection clause.  Rather, it held a 12(b)(6) motion is the proper mechanism to enforce a forum selection clause, but nevertheless found issues of material fact remained as to whether the forum selection clause was valid insofar as it may have been “obtained unknowingly and unwillingly” by being included in the moving company’s terms and conditions and binding move estimate provided only a few days before the anticipated move.  Noting the stage of the proceedings and the obligation to accept all facts pled in the complaint as true, the court denied the motion, subject to the moving company’s right to later re-bring a motion to enforce the forum selection clause following some discovery on the issues.   

Wattiker v. Am. Auto Haulers, Inc., 2022 U.S. Dist. LEXIS 159625, C.A. No. 3:22-cv-00324 (N.D. Tex. Aug. 2, 2022).  In this lawsuit arising from alleged damage to a Porsche 911 transported from California to Texas, the court dismissed the direct-action claims against the insurer defendants.  The court rejected the plaintiff’s claims that Carmack’s “strict liability” regime allows for a direct action against a cargo insurer prior to obtaining a judgment against the putative insured motor carrier.  The court also denied, without prejudice, the pro se plaintiff’s motion for summary judgment on the pseudo-Carmack claim/strict liability claim against the putative insureds. 

Kelts v. King Ocean Servs., 2022 U.S. Dist. LEXIS 162359, C.A. No. 22-22299 (S.D. Fla. Sep. 8, 2022).  This case involves a pickup truck that was shipped from Florida to Costa Rica, but while still in possession of the ocean carrier at the destination port, was wrongfully released to an unauthorized individual.  The owner of the truck sued the ocean carrier for statutory civil theft and conversion under Florida common law.  The ocean carrier sought to dismiss the lawsuit against it on the basis that the claims were preempted by COGSA. The court noted that the ocean carrier’s bill of lading contained a “Clause Paramount” providing “[t]his bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of 1936 of the United States of America, as amended (“COGSA”) which shall apply to the Goods whether the Goods carried on or under deck to carriage of the Goods to, from, or between U.S. ports or between non-U.S. ports before the Goods are loaded on and after they are discharged from the vessel and throughout the entire time that they are in custody of the Carrier, whether acting as carrier, bailee, terminal operator, inland carrier, stevedore. Carrier shall be entitled to any and all defenses and limitations of liability provided under COGSA or any other compulsorily applicable law or for any and all claims arising out of Carrier’s custody or control of the Goods . . . .”  Applying Eleventh Circuit precedent holding that where COGSA applies, it provides the exclusive remedy, the court found the plaintiff’s sole recourse was pursuant to COGSA and dismissed the lawsuit subject to the plaintiff’s right to refile a lawsuit alleging claims only under COGSA. 

COVERAGE

Allstate Prop. & Cas. Ins. Co. v. Fowler, 2022 U.S. Dist. 151366, C.A. 1:21-cv-4534 (N.D. Ga. Aug. 23, 2022).  This case involves interpretation of the motor vehicle exclusion under a homeowner’s policy.  In interpreting the exclusion, the court applied the Hays test, which sets forth three factors for determining whether an injury arose out of the use of a motor vehicle: (1) the physical proximity of the injury site to the vehicle; (2) the nature of the conduct which caused the situation of jeopardy; and (3) whether the vehicle was being “utilized” in the plain and ordinary sense of the word.”  Applying the Hays test, the court found that the claimant, who was injured while assisting the homeowner load a purchased classic car onto a trailer owned by the claimant, arose out of the use of a motor vehicle and therefore was excluded from coverage under the homeowner’s policy.  The court went on to note that the claim would have likewise been excluded under the “but for causation” test and the clear language of the policy excluding bodily injury arising out of the “loading of any motor vehicle or trailer.” 

Gemini Ins. Co. v. Zurich Am. Ins. Co., 2022 U.S. Dist. LEXIS 150368, C.A. No. 8:21-cv-2052 (M.D. Fla. Aug. 22, 2022).  In this dispute between three insurers for indemnification obligations arising out of a fatal motor vehicle accident involving a tractor-trailer, the court held the policies’ respective other insurance clauses required two “excess” insurers to pay on a pro-rata basis.  The primary insurer (Old Republic) paid its $1 million limits while one of the two “excess” carriers (Gemini) paid $2 million of its $3 million limit to settle the case, then sought reimbursement of $1 million from the other “excess” insurer (Zurich), who had $1 million in coverage. The Gemini Policy’s Other Insurance provision provided “this insurance is excess over and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis.”  The Zurich Policy’s Other Insurance provision provided “when this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share.”  The court applied existing Florida law, which holds when two or more policies cover the same loss, but both contain excess other insurance provisions, the clauses are deemed “mutually repugnant” such that each policy shall pay on a pro rata basis determined by the policy limits in relation to the loss.  Applying this rule, the court agreed that Zurich’s indemnification obligation was limited to $500,000, not the full $1 million policy limits. 

Trisura Specialty Ins. Co. v. Blue Horse Trucking Corp., 2022 U.S. Dist. LEXIS 150255, C.A. No. 20-cv-24134 (S.D. Fla. Aug. 22, 2022).  In this Report and Recommendation, a Florida federal magistrate judge ruled that the settlement of the underlying tort action by the insurer, who agreed to pay the full settlement amount (amounting to the full limits under the policy) despite previously reserving its rights to deny coverage, providing a defense to the underlying claims under a reservation of rights, and instituting a separate declaratory judgment action seeking a determination of non-coverage, constituted an admission by the insurer that there was coverage under the policy for the loss sufficient to give rise to the putative insured’s recovery of reasonable attorney’s fees under Fl. Stat. § 627.428(1). 

A One Commer. Ins. Risk Retention Grp., Inc. v. BZ Tranz, Inc., 2022 U.S. Dist. LEXIS 152603, C.A. No. 2:21-cv-06411 (C.D. Cal. Aug. 23, 2022).  An insurer was held to be entitled to reimbursement under the MCS 90 endorsement for cleanup costs it paid following a loss.  The involved tractor-trailer was carrying eight Teslas when a wheel casing of the trailer caught fire, resulting in damage to the Teslas.  As a result of the fire, the battery compartments of several of the Teslas were compromised and lithium-ion materials were released onto the asphalt and dirt shoulder of the highway.  An environmental cleanup company removed the hazardous material and submitted invoices totaling approximately $45,000.00 to the motor carrier.  The motor carrier, in turn, tendered the invoices to the insurer for payment.  The insurer advised the motor carrier that it had no duty to pay the invoices because there was no coverage for the loss under the policy, nevertheless it would satisfy the cleanup invoices under the MCS 90 endorsement.  The court first held that the payment of the invoices, prior to the cleanup company filing suit, nevertheless was a “final judgment” for purposes of the MCS 90 endorsement.  It then held that despite no court or other proceeding concluding the motor carrier/insured acted negligently, as is required for triggering the MCS 90, applying res ipsa loquitur principles there was prima facie proof that the fire was caused by the motor carrier’s negligent maintenance of the trailer.  As such, this was sufficient to trigger the MCS 90 endorsement.

Anderson v. Nationwide Agribusiness Ins. Co., 2022 U.S. Dist. LEXIS 148976, C.A. No. 4:21-cv-4101 (D.S.D. Aug. 17, 2022).  A farm employee injured while driving her employer’s John Deere Gator on a public roadway was not entitled to UIM benefits under her employer’s business auto policy.  The policy was a scheduled auto policy, and the Gator was not listed on the schedule of covered autos.  However, the insured paid $162.00 to add the farm employee and another employee to the Schedule of Nonownership Coverage for liability coverage.  From this, the employee argued she was a Named Insured entitled to UIM benefits under the policy.  The court disagreed, finding that the Named Insured, despite not being defined in the policy, meant only the two individuals listed on the declarations page.  Because the Gator was not a covered auto and the injured employee was not a “Named Insured” or resident relative, the employee was found to not be entitled to UIM benefits. 

Am. Serv. Ins. Co. v. Webber’s Transp., LLC, 2022 U.S. Dist. 154092, C.A. No. 4:20-cv-013 (S.D. Ga. Aug. 26, 2022).  An insurer for a non-emergency medical transport company prevailed on summary judgment and was found to not be responsible for providing a defense or indemnification to the medical transport company, its owners, or the driver in multiple underlying lawsuits alleging personal injuries out of a motor vehicle accident involving one of the company’s vehicles.  First, the court found the named insured and its owners had not complied with the cooperation and notice provisions of the policy, to the detriment of the insurer, and therefore there was no coverage.  The court held these provisions were conditions precedent to coverage.  It was uncontested for the motion that the named insured and/or its owners did not notify the insurer of the Accident or turn over the lawsuit to the insurer, resulting in default judgment against multiple putative insureds in at least one of the actions.  Further, the court held none of the putative insureds qualified as insureds because the relevant policy language conditioned insured status on the accident involving a covered auto “driven by an approved driver.” The policy further provided a driver was not an approved driver unless he/she was reported to the insurer at the time of the application or subsequent thereto and approved by the insurer with said approval being provided via written notification from the insurer.  Neither occurred with the driver operating the covered auto at the time of the Accident.  As such, the court held the insurer had no duty to defend or indemnify any of the putative insureds in connection with the claims/lawsuits arising from the Accident. 

Hoops v. Auto Owners Ins. Co., 2022 U.S. Dist. LEXIS 165802, C.A. No. 4:20-cv-1712 (E.D. Miss. Sep. 14, 2022).  Determining that the evidence adduced to date raised a question of fact as to whether there was a phantom driver, and accordingly if there was uninsured motorist coverage available in connection with the loss, the court held the plaintiff was not entitled to recovery penalties under Missouri’s “vexatious litigation” statute. 

Holland v. Cypress Insurance Co., 2022 U.S. Dist. LEXIS 169220, C.A. No. 2:17-cv-120 (N.D. Ga. Sep. 12, 2022).  In this remand proceeding from the Eleventh Circuit Court of Appeals, the court upheld the jury’s award of $6 million in attorneys’ fees and litigation expenses under Georgia’s “bad faith” statute, O.C.G.A. § 13-6-11.  Noting that “Georgia law provides no specific formula to calculate attorney’s fees for bad faith;” typically the issue presents a question of fact; that the primary consideration is the overall reasonableness; and that any award will be affirmed if there is evidence to support it, the court found the award was reasonable under the facts of the case. 

Great West Cas. Co. v. Maric Transp.,Inc., 2022 U.S. Dist. LEXIS 168194, C.A. No. 1:21-cv-00441 (N.D. Ohio Sep. 16, 2022).  In this insurance coverage dispute, the Non-Trucking Liability Insurer was found to have no duty to indemnify or defend any putative insured in connection with a motor vehicle accident.  At the time of the Accident, it was undisputed the driver was transporting cargo in interstate commerce.   The NTU liability policy defined “covered autos” as including only those trucks, tractors, and trailers on file with the insurer leased by the motor carrier shown in the Declarations and only while under a written lease agreement of thirty (30) days or more.  It further provided the NTU policy would pay as damages bodily injury or property damage caused by an accident and resulting from the ownership, maintenance, or use of a covered auto only while the covered auto is “not used to carry property in any business” and “not used in the business of anyone to whom the auto is rented, leased, or loaned.”  The NTU Policy included a Motor Carrier Operations exclusion, but also included a Motor Carrier Reimbursement Endorsement providing the NTU insurer would pay any contractual obligation the insured has to reimburse a motor carrier to whom the insured is leased for any loss due to an accident and resulting out of the ownership, maintenance, or use of a covered auto, provided the loss is in a written agreement and is a type of loss listed in the schedule on the endorsement.  The court found that the loss was not covered because the parties stipulated the subject tractor-trailer was not listed or on file with the NTU policy, but even if it was, the policy did not afford coverage, either under the Insuring Agreement or the Motor Carrier Operations exclusion, whenever the auto was being used to carry property in any business or while being used in the business of the anyone to whom the auto is rented, leased, or loaned.  The court further rejected that the Motor Carrier Reimbursement Endorsement altered the determination of non-coverage, finding there was no written agreement in place sufficient to trigger coverage under the endorsement.

WORKERS COMPENSATION

Solis v. Indus. Comm’n of Arizona, 2022 Ariz. App. Unpub. 679, CA-IC-21-0046 (Ariz. Ct. App. Aug. 25, 2022).  The Court of Appeals of Arizona affirmed the Arizona Industrial Commission’s finding that a trucker was not entitled to workers compensation benefits from the broker or the broker’s associated motor carrier operation, when he was killed while performing transportation of a load brokered to him by the broker.  The court found that neither defendant exercised that level of control over the trucker’s operations to subject them to liability for workers compensation benefits. 

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