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Bits & Pieces

August 2020

Back to school, but not back to normal…

This weird summer is coming to an end for many of us. A few of us may even be trying to sneak in a final stay-cation before the kids head back to school. While it does not seem like we will be together in person any time soon, we are glad that everyone keeps in touch. On a whole, many of us would probably give 2020 one out of five stars. Hopefully things are on an upward swing. Enjoy your Labor Day holiday and say safe.

This month we’d like to bring attention to a couple industry training opportunities. CAB has been a long time contributor and supporter of the IMUA and the MCIEF. We feel strongly that education is a key to success in this industry. For those of us who have been around forever -you are never too old to learn about new issues in the industry. For those just getting on board, these organizations provide excellent presentations to teach you the nuances of this challenging field.

The Inland Marine Underwriters Association (IMUA) is presenting Risk Management & Insurance Challenges in the Trucking Industry on September 10th at 10a EST. This class will discuss the challenges encountered by brokers, underwriters, claim adjusters and loss control in helping clients to develop a comprehensive and cost-effective risk management and insurance profile. This is a follow-up to the presentation Chad Krueger, CAB’s Sr. Vice President participated in with Steve Silverman back on June 25th called Underwriting Trucking Risks: Cutting Through The Data Noise And Identifying Trends. Registration is available by clicking this link.

The Motor Carrier Insurance Education Foundation (MCIEF) continues final planning for the 2020 virtual conference scheduled for November 9th through the 12th. The MCIEF is finalizing the conference interactive webpage with an active date of 9/1.

MCIEF knows committing 4 hours for 4 consecutive days is difficult in our current environment so they will be airing a repeat of each four-hour session post-conference on the following dates: Session 1 – Tuesday November 17, Session 2 – Monday November 23 (Thanksgiving Week), Session 3 – Tuesday December 1 and Session 4 – Tuesday December 8

Anyone interested in registering or getting information on registration can contact Beth Medina at Beth@mcief.org or by phone at 239-997-4084.

CAB Live Training Sessions

Our live training sessions continue to garner great interest from our users. If you missed either of these webinars, they are available in the Tools menu under Webinars or by clicking here. This month we will present two new live training sessions:

Tuesday, September 8th @ 12p EST: Mike Sevret will present Using CAB: Flow & Navigation. This will be an overview of Carrier Central and the CAB Report®. Perfect for newer users or current users looking for refresher or an update on enhancements.

Tuesday, September 15th @ 12p EST: Chad Krueger will be providing additional insight during our focused training, Chameleon Carriers and Interrelated Entities. Chameleon carriers/interrelated entities are very important to understand. CAB provides numerous features to identify and understand the relationships that may exist between motor carriers.

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers can register for either session from our Webinars page or by logging in and clicking this link https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest focused training topics that you would like to see. We are looking forward to connecting with you during these sessions so don’t hesitate to ask questions!

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CAB’s Tips & Tricks: Closed Enforcement Cases Added

Some of you may have noticed that we very recently added a section to the History Tab in the CAB Report® that lists the enforcement cases (if any) for the motor carrier. We have also added the information from the last 6 years in the CAB Alerts section of the General Tab of the CAB Report. As a quick background, FMCSA enforcement cases are initiated following compliance reviews, complaint investigations, terminal audits, roadside inspections, or other investigations. We will be providing the full history of closed enforcement cases. Why is this information important? CAB users can use this information to better understand if a motor carrier has a closed enforcement case and engage with the motor carrier to understand what caused the enforcement action and how it was resolved.

An enforcement case is deemed “closed” once FMCSA issues a carrier a “Notice of Claim” (NOC) and the carrier has (1) paid the penalty in full, (2) signed a settlement agreement, or (3) defaulted on the NOC, upon which a “Final Agency Order” was issued.

As with all of our tools & enhancements, we strive to present the data in a manner that will help provide additional clarity. 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:

FMCSA Releases July 2020 Drug & Alcohol Clearinghouse Summary Report: The most recent summary report released August 10th, 2020 reveals 4,893 violations during the month of July. There have been a total of 30,546 violations since the program started in January 2020. Positive drug tests account for 81% of the total reported violations. Marijuana Metabolite represents half of the 30,531 positive drug tests. Cocaine Metabolite (4544), Methamphetamine (2979) and Amphetamine (2828) are the distant 2nd, 3rd and 4th place when it comes to the positive drug tests. This report is generated monthly and they can be found at this link.

Regional Emergency Declaration Issued for Alabama, Louisiana, Mississippi and Texas: Declaration and an exemption from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSRs), except as otherwise restricted in this Emergency Declaration. The declaration is in response to Hurricanes or Tropical Storms Laura and Marco, and the current and anticipated effects on people and property, including immediate threat to human life or public welfare from heavy rains, high surf, flooding and high winds. This Declaration addresses the emergency conditions creating a need for immediate transportation of supplies, goods, equipment, fuel and persons and provides necessary relief. See the full Emergency Declaration here.

FMCSA’s Emergency Declaration still in Place, Extended to September 14th 2020, adds Emergency Restocking of Distribution Centers and Stores: On August 12th, the FMCSA extended the Emergency Declaration. The order had been set to expire on July 14th. Previous declarations exempted Food, Fuel, Paper Products, Raw Materials, Liquified Gases and others. The current declaration is only for +Livestock and livestock feed +Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19 and +Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants. This declaration had the addition of food, paper products and other groceries for emergency restocking of distribution centers or stores. For more information on the most recent Emergency Declaration click here.

Crash Prevention Determination Program Releases Quarterly Statistics: Since the CPDP program was released in early May, 4,700 Requests for Data Reviews (RDRs) have been submitted by 1,274 unique motor carriers. Crashes occurring on or after August 1, 2019 and fitting within the 16 criteria are eligible. 637 carriers submitted 1 RDR, 661 carriers submitted between 2 and 9 RDRs and 76 carriers submitted 10+ RDRs. The highest number of RDRs submitted by 1 carrier is 253 RDRs. We can see that many motor carriers of different sizes are taking advantage of CPDP. Make sure your customer and prospects know about this program so they can take steps to remove eligible crash weighting from their Crash BASIC percentile score. These results will be reflected in the CAB Report®, including the Crash BASICs weighting when the determinations have been made. For additional summary information, click here.

Trucking Seems to be Outpacing the Overall Economy: The Department of Labor states there were 2000 jobs added in the trucking industry based on the August 7th report. In July, a leading freight and analytics firm detailed van rates were $2.04 a mile, up 24 cents compared with June. Flatbed rates reached $2.20 per mile, up 13 cents, and reefer rates were $2.30 per mile, a 15-cent increase. The average spot van rate last month was 10.6% higher compared with July 2019. Entering August, van and reefer rates were much higher than the year-ago July averages at $2.20 and $2.42 per mile, respectively.

CAB Calculates Inspection Selection System (ISS-CAB) Values for Motor Carrier Ecosystem: The first table shows, for each power unit range; the number of carriers with values in the green, yellow, and red ranges, and the total number of carriers with an ISS-CAB value or an “insufficient data” score. The second table shows the data as percentages, out of carriers with ISS-CAB values or out of all carriers as appropriate. ISS-CAB values are as of the snapshot date of 8/11/20. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included.

FMCSA Publishes Rule Eliminating No-Defect Driver Vehicle Inspection Reports: The Federal Motor Carrier Safety Administration published the rule that harmonizes the post-trip vehicle inspection requirements for bus and truck drivers. The rule removes the need for bus and motorcoach drivers to document a post-trip inspection report on days when there are no vehicle defects identified. The revisions become effective September 17, 2020. The FMCSA previously revised §396.11 in December 2014 to remove the requirement that drivers of property-carrying vehicles fill out “no-defect” DVIRs. For additional information on the rule, please click here.

Off-Site Compliance Reviews Rise Dramatically Amid Pandemic: According to data from the FMCSA’s Motor Carrier Management Information System, the agency and state enforcement conducted almost 3,600 offsite compliance reviews through the end of July. That is almost three times the number of off site safety audits conducted in the full 2019 calendar year. In 2017, only 76 offsite compliance reviews were conducted, and 330 were conducted in 2018.

CASES

AUTO
The Western District in Virginia dismissed a claim for vicarious liability based upon an alleged joint venture with a trucking company. Despite the many facts which would seem to indicate a relationship, such as using the carrier’s name, insurance, USDOT number, and federal operating authority to transport loads, the court held that the plaintiff failed to show that the defendant had equal rights to direct and govern the operations and accordingly dismissed the cause of action. McKeown v. Rahim, 2020 WL 4587526
The trial court decision granting judgment to the non-trucking use insurer, and the tractor owner, was upheld in the Court of Appeals in Michigan. The court agreed that the “non-trucking use endorsement” and lack of collision coverage was not void as against public policy. The court also held the the tractor owner, who had leased the vehicle to the motor carrier, did not have a duty to maintain, inspect, and repair the tractor when it had no control over the vehicle. Estate of Altaye v. SA&R Trucking, 2020 WL 4915426
Make sure you have real support for the amount of damages that a plaintiff has suffered before removing a case to federal court. The Middle District in Louisiana remanded a suit for injuries suffered in a truck accident when the motor carrier and its insurer could not establish that the potential damages suffered by the plaintiff were valued at more than $75,000. Autin v. Cherokee Insurance Co. 2020 WL 4876857
A motor carrier was successful in getting a defense verdict upheld in Missouri Court of Appeals. The plaintiff had argued that a truck operated by the motor carrier had caused another vehicle to strike her. Without identifying the specific vehicle she could only base liability on the logo-liability doctrine. The court agreed that the doctrine only applied to carrier-lessees and the record revealed no evidence that the motor carrier operated as a carrier-lessee. Hearn v. ABF Freight System, 2020 WL 450171
Same was true in the Court of Appeals in Kentucky where a defense verdict was upheld for a trucking company. Plaintiff’s argument that the court should have instructed the jury that the motor carrier was required to use extreme caution under federal regulations because the sun was glaring was unavailing. In addition the court noted that driver manuals and CDL handbooks do not establish a duty but can only be used to inform the jury as to the standard of care. Spencer v. Arnold, 2020 WL 4500589
A claim of negligent brokering was not preempted under Missouri law said the Eastern District in Missouri. While the court agreed that Plaintiffs’ negligent brokering claims relate to the services of the broker and fall within the scope of 49 USC 14501(c)(1), the cause of action was subject to the safety regulation exception and therefore not preempted. Uhrhan v. B&B Cargo, Inc., 2020 WL 4501104

The Middle District in Pennsylvania also rejected a broker’s claim of preemption for a personal injury loss. The court concluded that the FAAAA does not preempt general tort law that does not significantly impact the broker’s prices, routes, and service. The court also denied summary judgment to the plaintiff, concluding that whether the broker should be held to the liability of a motor carrier was one to be left to the jury. Ciotola v. Star Transportation & Trucking, LLC, 2020 WL 4934592
Truck broker liability was also considered by the District Court in Massachusetts. The court held that the portion of Plaintiff’s negligence claim premised on the breach of the duty to comply with the rules and regulations promulgated by the Federal Motor Carrier Safety Administration or the Moving Ahead for Progress in the 21st Century Act would be dismissed. However the negligent hiring portion of the claim was not preempted, concluding that the negligent hiring claim seeks to impose a duty on the service of the broker rather than regulate motor vehicles and therefore was not subject to the preemptive effect of FAAAA. Skowron v C.H. Robinson 2020 WL 4736070

Summary judgement was not in order for a motor carrier involved in an accident when he was rear ended by the plaintiff. The plaintiff claimed that the manner in which the driver entered the highway from the rest stop and his slow speed in the driving lanes of the highway was the proximate cause of the accident. The Eastern District of Missouri held that was enough to raise a question of fact. Holt v. Qualified Trucking Service, Inc., 2020 WL 4533794
When vicarious liability was admitted the trucking company could not be held liable for direct negligence claims according to the Western District in Texas. The fact that the driver could be considered an independent contractor did not change the fact that the motor carrier could be vicariously liable for his actions, and would not negate the fact that direct claims were prohibited when vicarious liability was admitted. Frazier v. U.S. Express, Inc., 2020 WL 4353175
Who is first in line to pay PIP benefits when a truck driver is injured in a single vehicle accident? The Court of Appeals in Michigan concluded that when all of the relevant factors are considered, the economic reality test clearly showed that an employee-employer relationship existed between plaintiff and the motor carrier for purposes of the no-fault act. Because the plaintiff was an employee under MCL 500.3114(3), the motor carrier’s insurer was first in line to pay PIP benefits to the plaintiff. Duckworth v. Cherokee Insurance Co. 2020 WL 4555036
 A shipper was found liable for the injuries to the plaintiff which occurred when a truck carrying the shippers heavy equipment caused a bridge beam to hit the plaintiff. The Court of Appeals in Texas found that a shipper who knew or should have known of a defective loading condition had a duty to protect the public. The court upheld the multimillion dollar verdict. United Rentals North America, Inc. v. Evans, 2020 WL 4783190

Producing two occasions in which a defendant was operating a tractor trailer in the state of Maryland was insufficient to show that the company was systematically operating in the state. With only those two instances, a moving violation and an inspection plaintiff could not even support a claim for limited discovery on the issue. The complaint was dismissed. Tarpley v. Chung, 2020 WL 4903882
Interesting case came out of the Court of Appeals in Michigan addressing the indemnity obligations undertaken by a broker for the actions of the shipper. After the shipper was found 95% at fault for the death of a truck driver, the shipper sought indemnity from the broker and the motor carrier. The court reversed the trial court ruling, concluding that the trial court erroneously found no question of material fact as to whether the equipment that caused the decedent’s injuries was “attached” to the truck, which could implicate the motor carrier’s policy. The trial court also erred in concluding that the broker and motor carrier were entirely excused from indemnifying plaintiff under the contract, insofar as plaintiff was not found to be 100% at fault, and that Motor Carrier anti-indemnity statute did not apply. Ford Motor Company v. Centra, Inc., 2020 WL 4248471

Plaintiff was permitted to continue a cause of action for punitive damages when his tractor-trailer was struck from behind by the defendant’s tractor-trailer. The Eastern District of North Carolina held that when the plaintiff alleged that the defendant knew or should have known of the incompetence of the driver it was premature to dismiss the punitive damages claim. Davis v. G. Allen Equipment Corp., 2020 WL 4451169
The Southern District in Ohio agreed to give a plaintiff an opportunity to voluntarily dismiss its action and refile a suit against the defendants after an extended litigation. The Court expressed concern that the plaintiff would be unable to obtain redress for the serious, traumatic injuries that he suffered allegedly due to defendants’ actions if he was not given an opportunity to dismiss and refile his suit. While defendants, who the court noted had professionally and diligently defended this action, would be inconvenienced, that inconvenience does not rise to the level of plain legal prejudice. Moran v. Ruan Logistics, 2020 WL 4732991

When the plaintiff failed to take any substantive action to complete service for more than two years the Eastern District in Kentucky held that the plaintiff had technically not complied with the statute of limitations. Summary judgment was granted to the motor carrier. Wilson v Butzin, 2020 WL 4810117
The Northern District of Georgia held that while a plaintiff could not assert a claim for punitive damages against the driver, it could assert that claim against the motor carrier. The plaintiff was able to introduce evidence of numerous violations and issues with the driver which perhaps should have caused the motor carrier to consider whether the driver was eligible to drive. Ferguson v. Garkusha, 2020 WL 4732187
Plaintiff was not entitled to reconsideration of the trial court’s grant of judgment to defendant where the plaintiff was unable to establish evidence to support that he had no fault insurance in place at the time of the single vehicle truck accident and had suffered a serious injury. Singh v. Baryski, 2020 WL 4723303
The District Court in Colorado agreed that plaintiff’s negligent entrustment, negligent hiring and retention, and negligent training and supervision claims must be dismissed because the motor carrier admitted to vicarious liability. The court held that an employer’s negligent act in hiring, supervision and retention, or entrustment was not a wholly independent cause of the plaintiff’s injuries. DeLisa v Walker 2020 WL 4925905
The same was true in the Southern District in Mississippi where the court held that independent claims of negligence would not stand against the motor carrier when it admitted vicarious liability. The court also held that there was no basis for a claim for punitive damages under the facts of the case. Crechale v Carroll Fulmer Logistics Corp., 2020 WL 4927508
It was too premature to dismiss a complaint against an insurer who was defending the plaintiff in a suit arising from a truck accident. The Northern District of Georgia held that while the insurer was defending under a reservation of rights, there was a potential for the plaintiff to suffer damages and concluded that the case should proceed further before decisions were made on whether there was a valid claim. Teamone Contract Services, llc v American Guarantee & Liability Insurance Co., 2020 WL 4724759
CARGO
The shipper was entitled to dispose of a shipment which was delivered without the seal intact and the motor carrier could not claim an off-set for the salvage value. The Northern District in Georgia agreed that the contract gave the right to determine whether the cargo was worthless to the shipper when a shipment was delivered without a seal. Coyote Logistics v. Mera Trucking, LLC, 2020 WL 4815902
A cross-claims for contribution was held subject to the preemptive effect of the Carmack Amendment in the Middle District of Florida. When a marina sued a motor carrier for damages allegedly caused by delays in picking up a boat for transport, the court held that it could not seek contribution under the Carmack Amendment because the marina was not a connecting carrier and was also precluded from seeking contribution under common law because the only available claim against the trucker was one under the Carmack Amendment. Razipour v. Joule Yacht Transport, 2020 WL 4904456

TOW
Want to see what happens when there is push back against a tow company for improper billing and/or withholding cargo.? The Court of Appeals in South Carolina upheld the judgment of the Administrative Law Court on the limited suspension of the tow company from the rotation for approved carriers. Wayne’s Automotive Center, Inc. v. South Carolina Department of Public Safety, 2020 WL 4660975
WORKER’S COMPENSATION
The Court of Appeals in Iowa reversed a trial court ruling overturning the decision of the worker’s compensation board. The court agreed that the workers’ compensation commissioner’s decision that the employee suffered a work-related injury and sustained a forty-five percent industrial disability was supported by evidence. They agreed that the commissioner’s finding that the plaintiff had “failed to carry his burden of proof that he is permanently and totally disabled as a result of the work injury under either an industrial disability analysis or under an odd-lot analysis” was correct. Pruismann v. Iowa Tanklines, Inc., 2020 WL 4498131
The Court of Appeals in Maryland held that a truck driver was collaterally estopped from asserting that his condition from an earlier injury had worsened and he was entitled to additional benefits. Plaintiffs had been given reasonable opportunities to present new evidence, had not done so and had already received a finding that the additional injuries were not causally connected. Lyons v. Chesapeake Spice Company, 2020 WL 4283965

Thanks for joining us,

Jean & Chad

July 2020

We are halfway through 2020?!?

At this point in 2020, I’m not sure how to feel about the year being half over. Happy, sad, relieved? Regardless, the year keeps trucking along…pun intended. If you’re a sports fan, the good news is that games are getting underway again. Here’s to continuing to move forward and getting the most out of life during this crazy period. As always, we hope for your continued good health, safety and prosperity during August and beyond!

Live Training Sessions

Our live training sessions continue to garner great interest from our users. Your interest has driven us to continue to innovate and provide topical training. Last month our training addressed Using CAB: Flow & Navigation and CAB Focused Training: VITAL+™. If you missed either of these webinars, they are available in the Tools menu under Webinars or by clicking here. This month we will present two new live trainings:

Tuesday, August 11 @ 12p EST: Mike Sevret will present Customize your CAB Experience: Settings & Scheduled Reports. This session will benefit all users, but especially users that want to customize what and how they see the information on the CAB system. This will include identifying hot zones, scheduling/automating reports, auto add to CAB List, radius buckets/alerts, violation notifications and even customizing your web and PDF CAB Report® format. If you’re an avid CAB user, you will not want to miss this training!

Tuesday, August 18th @ 12p EST: Sean Gardner will provide a basic overview of CAB’s Motor Carrier Advantage. MC Advantage™ is a tool that provides Motor Carriers access to their CAB information in a dashboard format. Since its initial introduction through specific insurance carrier partners, the MC Advantage™ has proved an invaluable tool for motor carriers of all sizes. Don’t miss this training to learn more about MC Advantage™.

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers can register for either session from our Webinars page or by logging in and clicking this link https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest focused training topics that you would like to see. We are looking forward to connecting with you during these sessions so don’t hesitate to ask questions!

Follow us at: CAB Linkedin Page CAB Facebook Page

CAB’s Tips & Tricks: Crash Preventability Determination Program (CPDP) Resources

Many of you may have noticed that we recently updated our logo and color scheme throughout the CAB system. Our goal was to update and simplify our Logo and color scheme to enhance our user experience. Don’t worry, while the tools and resources have a more appealing visual appearance, all the same great CAB features are still available!

This month we also introduce an additional feature available in CAB List™. The new feature is the ability to add and filter by “Tags”. This can be done either by selecting a checkbox and hitting the green tag button or by hitting the tag button at the end of each row. Once a tag is added, hovering over the tag button on the row will show the assigned tags. This functionality was requested by users that were looking for additional ways to classify and organize the motor carriers in their CAB List™. Tag names are only limited by your imagination. Feel free to tag by insurance agency, insurance carrier, commodity, region of operation, producer, or anything you prefer.

As with all of our tools & enhancements, we strive to present the data in a manner that will help provide additional clarity. 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:

Virginia Tech Transportation Institute Releases Pre-Employment Screening Best Practices in the Commercial Motor Vehicle Industry Study: This study documents innovative and successful practices for pre-employment screening in the commercial motor vehicle (CMV) industry and assesses the prevalence and effectiveness of these pre-employment screening practices in a sample of CMV operations. A 47-item Web-based survey queried participating carriers’ (i) use of various pre-employment screening practices, (ii) effectiveness of pre-employment screening practices, (iii) reasons why pre-employment screening practices are used or unused, and (iv) descriptive data on the participating carrier (fleet size, operation type, etc.). Based on the results, effective screening techniques in order of their effectiveness ratings from survey respondents include performance or skills testing, background checks, personality testing, medical examination, physical ability testing, and social media screening. For more information on the study, click here.

The Federal Motor Carrier Safety Administration (FMCSA) announces a public meeting “The FMCSA 2020 Trucking Safety Summit”, which will be held virtually on August 5, 2020, to solicit information on improving safe operation of property-carrying commercial motor vehicles on our Nation’s roadways. The virtual meeting will provide invited stakeholders — including motor carriers, drivers, safety technology developers and users, Federal and State partners, and safety advocacy groups – as well as members of the public an opportunity to share their ideas on improving trucking safety. For more information and to register for the event, click here.

Nonfarm Employment Up 4.8 Million in June 2020, Transportation and Warehousing up 98,700: Total nonfarm payroll employment increased by 4.8 million in June 2020, following an increase of 2.7 million in May. These gains reflect a partial resumption of economic activity that had been curtailed due to the coronavirus pandemic in April and March, when employment fell by a total of 22.2 million in the 2 months combined. In June, nonfarm employment was 14.7 million, or 9.6 percent, lower than its February level. Transportation and Warehousing specific data can be seen below. For additional information, click here.

FMCSA Eliminates Driver Vehicle Inspections Reports (DVIRs) When No Defects Are Found: $74 Million in Annual Cost Savings is projected as part of the agency’s ongoing effort to review existing regulations to evaluate their continued necessity and effectiveness, FMCSA is rescinding the requirement that drivers of commercial buses submit – and their motor carriers retain – driver-vehicle inspection reports (DVIRs) when the driver has neither found nor been made aware of any vehicle defects or deficiencies. It should be noted that both Pre and Post Trips are still required by Federal Motor Carrier Safety Regulations. For more information, click here.

CAB Calculates Number and Percentage of Motor Carriers Above and Below BASICs Alert Thresholds: The “Number of Carriers” table shows the number of carriers in each power unit range with a percentile under or over the alert threshold in each BASIC category. The “Percentage of Carriers” table shows the percentage of carriers in each power unit range with a percentile over the alert threshold: 1) out of the set of carriers who were assigned a percentile (w/pctile), and 2) out of the set of carriers who in the last two years had at least one relevant inspection (w/insp). Only a very small proportion of carriers fall in the first category and a somewhat larger minority in the second category (it varies by carrier size and BASIC).

Note that for the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Also note that different BASICs and different types of carriers have different thresholds. Percentiles are as of the snapshot date 6/26/20. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included.

Road Fatality Rates Increase During Pandemic: National Safety Council, which focuses on eliminating the leading causes of preventable injuries and deaths, released estimates indicating that motor vehicle fatality rates rose in May, despite quarantines. Preliminary data for May shows a 23.5% jump in the fatality rate per miles driven compared with figures from the previous year. Also noted was a 12% jump in death rate in March and an unprecedented 34% increase in the rate of death in April with miles driven dropping 40% in April. To view the complete NSC Transportation Round Table, click here.

FBI Issues Warning About Vulnerability of Electronic Logging Devices (ELD): Issued on July 21st, in a Private Industry Notification, the FBI warns that “cyber criminals could exploit vulnerabilities in Electronic Logging Devices. The main issue noted is that the ELD mandate does not contain cyber security requirements for manufacturers or suppliers and there is no requirement for third-party validation or testing prior to the ELD self-certification process. The PIN recommends companies choosing an ELD mitigate their cyber risk by following best practices tailored to ELDs which includes asking the ELD’s supplier specific questions, such as: 1) Is the communication between the engine and the ELD enforced? 2) Were technical standards or best practices followed in the device’s development? 3) Does the component protect confidentiality and integrity of communications? 4) Has the component had penetration tests performed on it? 5) Does the device have a secure boot?

FMCSA’s Emergency Declaration still in Place, but Fewer Freight Categories Included: On July 13th, the FMCSA extended the Emergency Declaration to August 14th. The order had been set to expire on July 14th. Previous declarations exempted Food, Fuel, Paper Products, Raw Materials, Liquified Gases and others. The current declaration is only for +Livestock and livestock feed +Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19 and +Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants. For more information on the Emergency Declaration click here.

Roadside Inspections Continue Rebound After Low of 70,000 in April. As the data set below details, due to COVID-19 exemptions, the total number of inspections recorded in April of 2020 was just under 70,000. Prior to that, and since 2009, the previous monthly low was just under 235,000 inspections. This is mainly due to COVID related issues and concerns. For the month of June, 184,353 inspections were conducted. The violation rate for June (1.22 violations per inspection) dropped by .01 from May and remains below the 1.42 rate from June of 2019. The good news is that the data validity remains strong as the algorithms are designed to adjust to fluctuations in the data sets. As always, we encourage you to look below the surface to get a better understanding of the motor carriers you’re looking to do business with. You are welcome to reach out to your CAB Representative if you have any questions.

CASES

Cargo

You can indeed forfeit the right to present a claim under the Carmack Amendment claim. The Western District of Wisconsin held that a truck broker forfeited the Carmack claim by failing to plead it or otherwise put the motor carrier on notice of the claim. As the broker carrier agreement, which was the basis of the remaining claim, made the motor carrier liable only for a negligent loss, summary judgment was inappropriate. Whether it was negligent to move cargo in the yard while it was unsecured remained to be decided by a jury.  Ikon Transportation Services, Inc. v. Texas Made Trucking, LLC., 2020 WL 3488435 

A truck broker was found liable for a cargo claim in the First Circuit Court of Appeals in Louisiana. The court held that the Carmack Amendment did not apply because the defendant was a broker and that it could be held liable under state contract law for the claims asserted against it. The court further held that the broker was obligated to ensure the safe transport of the cargo. Ross & Wallace Paper Products v. Team Logistics, Inc. 2020 WL 3840038

When a defendant has actively participated in a suit alleging Carmack damages the District Court in South Carolina was not inclined to dismiss a complaint which was improperly served. Instead the court instructed the plaintiff to do it again, correctly this time! Smith v. Kelso, 2020 U.S. Dist. LEXIS 122602

Household goods claims can be a mess. The battle between a consumer and a carrier heated up in the Eastern District in North Carolina. The court issued an order preventing the motor carrier from taking any action on the goods it was holding while the plaintiff was ordered to pay for storage while the liability issues were litigated. Bryant v. Core Contents Restoration, 202 U.S. Dist LEXIS 128277

Questions of fact remain to be resolved on whether the shipper was solely responsible for the loading of machinery so summary judgment was an inappropriate remedy for the plaintiff’s Carmack Amendment claim against the motor carrier in the District Court in Minnesota. The court also held that there was a question of fact as to the damages, one question whether it was the purchase price of the used equipment or the cost of a replacement, nine times higher. Dubow Textile, Inc. v. Western Specialized, Inc., 2020 WL 4226756

Auto

An attempt to defeat diversity by adding a non-diverse party failed in the Eastern District in Texas. Plaintiff, who was struck when a truck was turning into a driveway, sued the owner of the property claiming it had failed to comply with Texas Administrative Code on the design on the driveway. The court held that it was an improper joinder, dismissing the property owner and keeping the case against the trucker. Metzloff v. Royal Trucking Co., 2020 U.S. Dist. LEXIS 127988

One insurer was successful in depositing its policy limit of one million dollars with the court in a multi truck accident. The District Court accepted the money and dismissed the insurer, noting, however, that the release and dismissal would not extend to any claim by the insured for failure to settle. Amguard Ins. Co. v. Ortiz, 2020 U.S. Dist. LEXIS 122999

The 7th Circuit remanded a case back for a trial after overturning the grant of summary judgment to the motor carrier for a rear end collision. The court held that even though the plaintiff had initially lost control of her vehicle the jury could find that the motor carrier should have been in better control of its vehicle. In addition, the court also addressed the “stateless” issue of the defendant, who no longer maintained a specific residence in a state. That alone was not enough to defeat diversity when the only evidence indicated that the defendant had not given up her domiciled state. Perez v. K&B Transportation, Inc., 2020 WL 4250143 

Plaintiff cannot maintain a direct negligence claim, such as negligent hiring, training, supervision, etc., against an employer, while simultaneously maintaining a claim against the alleged negligent employee for which the plaintiff seeks to hold the employer vicariously liable, after the employer has admitted that the employee was in the course and scope of employment at the time of the alleged conduct. The Court of Appeal of First Circuit in Louisiana concluded that the district court properly granted summary judgment dismissing the direct negligence claim against the trucking company. Elee v. White, 2020 WL 4251974 

When there was no basis for a claim for punitive damages against a truck driver or his employer the Eastern District of Pennsylvania dismissed those causes of action. Plaintiff could not support any factual allegations which would rise to the level to permit punitive damages to be assessed. Sometimes an accident is simply an accident. Carson v. Tucker, 2020 U.S. Dist. LEXIS 125243

When the plaintiff is a U.S. Citizen who is domiciled in another country, the plaintiff is essentially stateless. The Eastern District of Pennsylvania remanded an action seeking damages against the trucker for a personal injury action as diversity was not present. Ricco v. Goston, 2020 WL 3642863

A motor carrier was not permitted to argue that a plaintiff’s medical bills were not actual damages because the plaintiff had assigned the bill to the medical provider. The fact that the medical bills were not paid and would not be the liability of the plaintiff did not prevent the application of the collateral source rule in the Southern District in Mississippi. Evans v. Roger’s Trucking, Inc. 2020 WL 3803906

Can a settlement agreement be enforced against the driver when his employer, the trucking company, files bankruptcy? The 11th Circuit answered in the affirmative when the settlement agreement unambiguously bound both to pay the judgment without qualification as to how much each must pay. The court held it was an abuse of discretion for the district court to fail to enforce the agreement. Meeks v. Newcomb, 2020 U.S. App. LEXIS 22107

Plaintiff lost the opportunity to add a co-defendant, the lumper service which supervised the offloading on the dock where he was hurt, when he simply waited too long to assert a direct claim. The lumper was a third party defendant already so the plaintiff should have known of the potential claim and brought it in a timely manner, says the Eastern District of Pennsylvania. Sydnor v. KLM Trans, Inc., 2020 U.S. Dist. LEXIS 126096

My friend, and wonderful transportation attorney, Rob Mosley shared a recent decision out of the Iowa District Court addressing the applicability of insurance coverage under two separate trucker’s policies for liability for a single vehicle fatal accident. The court held that the driver was a statutory employee of the trucker under 49 C.F.R. § 390.5, irrespective of whether he qualifies as an independent contractor under Iowa common law, and the employee exclusion applied. The MCS 90 endorsement was not applicable because it does not extend the surety obligation to injuries sustained by ‘employees’ of the motor carrier. On the other hand, the other insurer, who had different employee wording in the exclusion did not fare as well. The pick-up towing the trailer was determined to be a covered auto and that the business use exclusion did not apply to defeat coverage. Thanks Rob for sharing. Progressive Northern Insurance Co. v. The Estate of Roos, EQCV027457

Summary judgment was denied to a plaintiff who claimed he was struck by the rear passenger tire of the cab portion of a tractor trailer. The Appellate Division, 2d Department, in New York agreed with the defendant that there were too many questions of fact as to the liability of the truck driver. Sanders v. Sangemino, 2020 WL 351668

A motor carrier was unable to have a punitive damage claim dismissed in the Western District of Texas. The motor carrier failed to sustain its burden of showing that the plaintiff had no evidence. It was no incumbent upon the plaintiff to establish the claim in response to the motion. Young v. Johnson, 2020 U.S. Dist. LEXIS 128582

Efforts by plaintiff to pursue a construction company for contributing to a multivehicle fatal truck accident failed. The Court of Appeals in Texas affirmed the jury finding that the construction company had complied with the traffic control plan and the accident was the fault of the trucking company. Givens v Anderson Columbia, Co., Inc. 2020 WL 3815926

Even with a rebuttable presumption that a rear end hit was negligent a trucker was successful in defeating summary judgment in the Western District in Louisiana. The court held that the trucker introduced enough evidence to support a potential conclusion that he was not negligent because the plaintiff wrongfully entered the lane of traffic before the impact. Hicks v. Tim Williams Wood Products, 2020 WL 3815265

A plaintiff’s efforts to seek overly broad discovery about prior truck accidents failed in the District Court in New Mexico. While the motor carrier admitted that it “categorizes crashes/accidents for vehicles operating under its [Department of Transportation] number” as “preventable or not preventable” and “by maneuver type, including backing or reversing,” the court held that without further clarification and connection to the loss facts the plaintiff was seeking too much information. Additional requests for information were also denied because the plaintiff failed to connect the demands to the type of accident at issue. Driscoll v. Castellanos, 2020 WL 3581628

While the plaintiff was awarded damages following a trial on the truck accident it apparently was not enough. The 4th Circuit Court of Appeals in Louisiana upheld the trial verdict, rejecting the plaintiff’s request for a JNOV or a new trial, concluding that the jury verdict was supported by the evidence. Harts v. Downing, 2020 WL 3445842

A shipper’s failure to present timely cross-claims against a motor carrier and a broker was potentially fatal in the Middle District in Pennsylvania. The court held that the proposed amendment after discovery was concluded was too late. Ciotola v. Star Transportation & Trucking, LLC., 2020 WL 3619079

Under Louisiana law, separate claims for negligent supervision, hiring, and training will not stand against the motor carrier who has admitted vicarious liability for the driver’s actions. The Eastern District in Louisiana granted summary judgment to the motor carrier. Watson v. Jones, 2020  WL 3791894

Discovery issues were considered by the court in the Eastern District of North Carolina. The trucker’s argument that release of information concerning prior accidents with the driver would violate the California Constitution and confidentiality provisions in various settlement agreements was unavailing. The information would have to be released. Blue v. Hill, 2020 U.S. Dist. LEXIS 122428

Plaintiff was unable to pursue a claim in the Middle District of Florida against a trucking company for an accident that occurred in New Hampshire. Plaintiff was unable to establish any basis for jurisdiction in Florida. Louis v. Milton Transp., Inc., 2020 U.S. Dist. LEXIS 126709

Whether the failure to have a child safely restrained in a vehicle prior to a truck accident constitutes a basis for an affirmative defense of apportionment of fault under Arkansas law is an issue which the Western District of Arkansas determined should be decided by the state court. The court unilaterally decided to certify the question to the Arkansas Supreme Court for an answer. Edwards v. Thomas, 2020 WL 3913533

Worker’s Compensation

Worker’s compensation was the exclusive remedy available to a co-driver said the Eastern District in Texas. The fact that the plaintiffs had completed her driving duties on that particular trip and was asleep in the sleeping berth of the tractor-trailer at the time of the accident was insufficient to exempt her from the worker’s compensation as the sole remedy for damages. Milburn v Colonia Freight Systems, 2020 WL 3542238

Thanks for joining us,

Jean & Chad

© 2020 Central Analysis Bureau