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Bits & Pieces

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

June 2020

2020 has certainly been an unprecedented year…

At this point in 2020, I can’t help but hope for a boring safe summer. We hope you and your family are able to take some time to enjoy the weather and relax. As we look forward to our Independence Day Holiday, I hope we can all reflect on our blessings and what brings all our people together. Please have a Happy Fourth of July and stay safe!

Live Training Sessions

We would like to thank all the attendees for making our live training such a success. Your interest has driven us to continue to innovate and provide topical training. Last month our training addressed FMCSA’s New Crash Preventability Determination Program: Providing Clarity Using CAB’s BASICs Calculator™ and SALEs™: Targeted Leads Generator. If you missed the webinar, it is available in the Tools menu under Webinars or by clicking here. This month we will present two new live trainings:

Tuesday, July 14th @ 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, July 21st @ 12p EST: Sean Gardner will provide requested training CAB Focused Training: VITAL+™. As a number of our users noted, this feature is due for an updated webinar and we’re happy to provide that. Through this webinar, Sean will discuss in detail the advanced features of VITAL+™ giving you the ability to see DOT related events for a VIN, license plate number or DOT number going back to 1999.

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

As a follow up to last month’s SALEs™: Targeted Leads Generator webinar, I wanted to make sure all our users are aware of its updated look and feel. The new layout will simplify the navigation throughout the tool. Additionally, we’ve enhanced the search functionality and added numerous search features that will help you quickly identify the motor carriers you want to work with.

Once your search criteria has been identified, easily convert, email, download, export, save or edit your list. Don’t forget, we also offer data services (additional fees may apply) if your organization is looking for integration with a CRM or other software.

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:

U. S. House of Representatives Vote to Raise Mandatory Insurance Limits: The amendment, introduced the week of June 15th, 2020 by U.S. Rep. Chuy Garcia, D-Illinois, passed the House Transportation & Infrastructure Committee late Wednesday, June 17th by a vote of 37-27. The amendment (see here) raised the required amount of insurance coverage for trucking companies from $750,000 to $2,000,000. This is a part of the House of Representatives version of the transportation reauthorization bill that will take the place of the FAST Act of 2015. The dramatic increase has raised concern that it could put small trucking companies out of business. The House version of the reauthorization of the FAST Act, called the Investing in a New Vision for the Environment and Surface Transportation in America (INVEST in America) Act, a five-year, $494 billion surface transportation bill can be reviewed here.

FMCSA’s Emergency Declaration still in Place, but Fewer Freight Categories Included: On June 8th, the FMCSA extended the Emergency Declaration to July 14th. The order had been set to expire on June 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.

Early Estimates of Motor Vehicle Fatalities Shows Year-Over-Year Reduction: A statistical projection of traffic fatalities for the first quarter of 2020 shows an estimated reduction of 70 fatalities. That is a reduction of 1%. Vehicle miles traveled during that same time were reduced by 5.4%. The fatality rate for the first quarter of 2020 increased to 1.10 fatalities per 100 million VMT, up from the projected rate of 1.05 fatalities per 100 million VMT in the first quarter of 2019. The actual counts for 2019 and 2020 will be available later this year, as well as when the final file for 2019 and the annual reporting file for 2020 are available next year. For additional information on this report, click here.

American Transportation Research Institute (ATRI) Releases Nuclear Verdicts Study: Earlier this month ATRI released its Understanding the Impact of Nuclear Verdicts on the Trucking Industry study. The study notes that the term Nuclear Verdicts has existed in the trucking industry since 2006. The cases can often result in verdicts over $10,000,000. Atri’s qualitative analysis includes over 600 cases. One of the interesting graphs note the dramatic jump in Verdict Size Increase compared to Inflation Increase and Healthcare Cost Increase. To obtain and review ATRI’s study, click here.

FedMed Card and License Waivers Extended Through September 30, 2020: The Federal Motor Carrier Safety Administration (FMCSA) extended two Covid-19 enforcement notices relating to medical certifications and driver’s licenses. A driver may continue to operate a CMV with an expired driver’s license provided it was valid on February 29, 2020, and it expired or was downgraded due a lapse in medical certification since March 1, 2020. However, the driver must otherwise be qualified to operate a CMV in accordance with §391.11. For more information on the notice, click here.

Operation Safe Driver Week is July 12-18 With a Focus on Speeding: According to the Governors Highway Safety Association, less traffic may be encouraging some drivers to ignore traffic safety laws, including speed limits. Despite there being far fewer vehicles on the road due to COVID-19 stay-at-home orders, many jurisdictions are seeing a severe spike in speeding. As the number of vehicles on roadways decreased in March and April, average speeds measured during the first week of April increased significantly in the five largest U.S. metropolitan areas. According to recent data, the average speed on interstate highways, state highways and expressways in those areas increased by as much as 75% compared to January and February. For more information on Operation Safe Driver Week and previous results, click here.

Roadside Inspections 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. The reason for this is that inspections for most exempted loads were not being conducted, additionally, contacts with drivers were likely limited due to COVID concerns. That being said, May 2020 inspections have rebounded to 124,350 and we expect that increase to continue. It should be noted, we’re continuing to see big differences between states. Some states (e.g. New York, Mississippi, California) have rebounded significantly, while others (e.g. New Jersey, Indiana, Wisconsin) remain far below normal. The violation rate for May (1.22 violations per inspection) remains similar to last month, still slightly down from the same month last year. 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

Auto

Plaintiff’s attempt to use a shotgun approach to allege every possible claim against a trailer owner failed in the Middle District in Florida. The court dismissed the entirety of the complaint against the trailer owner, concluding that the plaintiff failed to properly allege the trailer owner’s part in the transportation, preventing the court from determining if the causes of action were valid. The court also confirmed that under Florida law, a claim of liability based on the dangerous instrumentality doctrine cannot be premised solely on a principal’s ownership of the trailer portion of a tractor-trailer. Bailey v. Bell-Rich Transportation, 2020 WL 3440585

Summary judgment was granted to an insurer in the Western District of Louisiana when the court concluded that the motor carrier liability policy did exclude claims for punitive damages. Moreaux v. Clear Blue Insurance Co., 2020 WL 3477110

Plaintiff’s claims against a motor carrier for negligent maintenance and inspection, negligent hiring, and gross negligence were dismissed with prejudice by the Western District in Texas. The court did note that the negligent hiring claim could have been alleged, if the plaintiff had supported a claim for gross negligence. Perez v. Boecken, 2020 WL 3452990

Summary judgment was afforded to a motor carrier when the Western District in Louisiana held that there was no question of fact on whether the plaintiff was actually in the parked vehicle when it was struck. Video evidence at the truck stop showed the plaintiff walking outside the vehicle shortly before the alleged incident and the evidence supported a conclusion that the driver could not have gotten back to the vehicle before impact. Dugas v. Ace American Insurance Co., 2020 WL 3442288

When an insurer failed to timely accept coverage under a worker’s compensation policy, the consequences were tough. The District Court in New Mexico concluded that the insurer breached its contractual duty and failed to defend the motor carrier in the suit arising from the drivers’ fatal accident. The motor carrier was entitled to defense costs and penalties for failure to comply with the Prompt Payment of Claims Act. MVT Services, LLC v. Great West Casualty Co. 2020 WL 2402272

The Western District of Louisiana concluded that Louisina law will permit direct negligence claims against a trucking company even when the employer admits to vicarious liability for the employee’s negligence. Gordon v. Great West Casualty Co., 2020 WL 3472634

 

An insurer was not required to pay a $2,6 million default judgment entered against a truck driver when the driver fled the country. The 6th Circuit concluded that the driver failed to cooperate in his defense, letting the insurer off the hook. National Continental Insurance Co. v. Aiazbekov, 2020 WL 343238

After losing the appeal of the lower court decision that an insurer had no duty to defend or indemnify a truck driver under the policy or under the MCS-90 endorsement, plaintiff lost all avenues for recovery. The District Court in South Carolina went one step further and dismissed the complaint after the Court of Appeals held that the declaratory judgment had a serious potential to interfere with the state court proceedings. Trustgard Insurance Co. v. Brown, 2020 WL 2839173

Battles over what can and cannot be addressed at depositions are apparently being fought more often as plaintiffs look to expand the scope of questioning. The District Court in New Mexico granted a protective order on many overly broad issues, including corporate conduct policies and practices, net worth, similar incidents and vehicle equipment requirements, among others. Expanding beyond the facts of the loss is a way to seek facts to support claims which result in excessive verdicts. Heuskin v. D&E Transport, LLC. 2020 WL 3051578

Can the truck driver sue the shipper in the accident state for injuries caused by the alleged negligent loading of the truck in another state? The Eastern District in Missouri held that the plaintiff was entitled to discovery about the defendant’s use of Missouri roads to carry its product and about its intention that Missouri roads be used for shipment of its goods to determine whether long arm jurisdiction was present. Slaton v. Climan Molybdenum Co., 2020 WL 2768788

 

A truck broker’s efforts to remove a case to federal court failed in the District Court in Texas. The court held that the truck broker was aware of the federal question (preemption) in earlier pleadings and where the removal was not done until after an amended complaint was filed, it was untimely. Lopez v. Truckers Transportation Alliance, Inc., 2020 WL 2894792

A case proceeded to default against a trucking company when defense counsel withdrew due to the fact that the insurer of the trucking company went into receivership. The trucking company failed to defend, resulting in a judgment for damages. Not clear who will pay now. Boshers v. Transco Logistics, Inc. 2020 WL 2806455

Even though the motor carrier’s vehicle struck the plaintiff because of the negligence of a third party, the Eastern District of Michigan denied a motion for judgment on the pleadings. As the plaintiff alleged that the truck driver was speeding, driving carelessly, and failed to keep a lookout judgment was not warranted at this early stage of the case. The court concluded that the motor carrier could not invoke the sudden emergency doctrine if, through his own negligence, he contributed to bringing about the emergency Kingsbury v. Progressive Michigan Insurance Co., 2020 WL 2781825

A trucking company was unsuccessful in its appeal of a verdict rendered against it following a truck and ambulance accident. The Court of Appeals in Texas affirmed all damages including punitive. The court held that prior violations and lack of training on certain weight issues were permissible to support claims for negligence and gross negligence in training, equipping and supervising employees. The verdict was held reasonable. Martinez v. Kwas, 2020 WL 2988452

The Court of Appeals in Massachusetts held that the trial court properly granted summary judgment for the international moving company and its agent on the negligent hiring claim because the driver’s criminal acts, committed while he was off duty and not engaged in the work for which the agent employed him, against a person with whom the agent held no commercial or other relationship, was not a sufficiently foreseeable result of the agent hiring of the employee, or its decision to allow him to drive a truck incident to the move to which he was assigned. The victim was not among those with whom the employment brought the employee into contact, his employment did not furnish the means by which he executed his criminal act, and the truck was not an instrumentality of the criminal assault because he parked the truck, approached the victim from behind on foot, and then dragged her into the woods where he assaulted her. Ledet v. Mills Van Lines, Inc., 97 Mass. App Ct. 667

You cannot avoid the requirement of complete diversity by removing a case before the non-diverse defendant is served. The Southern District in Texas concluded that the trucker’s argument for an extension of the doctrine of “snap removal” even when there was never jurisdiction in the first place was unavailing. Cox v. J.B. Hunt Transp, 2020 U.S.Dist LEXIS 106927

For purposes of jurisdiction the Eastern District of Michigan held that a plaintiff was required to plead the citizenship of each member of the LLC which formed the trucking company. Failure to do so was fatal to the complaint, which the court dismissed. Brown v. Vedos Express, LLC, 2020 WL 3036393

 

A claim for negligent hiring would be permitted to continue even though vicarious liability was admitted. The Northern District in Indiana concluded that when the plaintiff alleged a claim for punitive damages, the special circumstances needed to support a negligent hiring claim was present. Finn v. Vince Nelson & Southwind Farms, 2020 U.S. Dist. LEXIS 107354

A plaintiff was permitted to amend her complaint to allege a claim of gross negligence against the truck driver and his employer when discovery revealed that the driver was on a 28 minute call at the time of the accident. The Western District of Texas held that as there were few cases on whether cell phone use at the time of an accident was grossly negligent, the amendment would be permitted. Cantu v. Wayne Wilkens Trucking, LLC, 2020 U.S. Dist LEXIS 103104

Statutory penalties and fees were granted on one of two claims for physical damage presented by a trucker against his insurer. The Western District of Louisiana held that once an insurer resolved a discrepancy on the vin, and accepted that the vehicle was covered by the policy, the failure to resolve the claim within the statutory time frames would result in fees and penalties. The insurer was not, however, responsible for those damages on a second claim when the delay was caused by the independent adjuster who did not get the report to the insurer. Jaackson v. Berkshire Hathaway Global Insurance Services, 2020 WL 2803014

Trucking or non-trucking, that is the question. The Middle District of Georgia considered the arguments raised by both of those insurers. The court denied the request for summary judgment, concluding that a jury could reasonably determine either that the driver was on his way to work or on a personal errand at the time of the crash. Great West Casualty Ins. Co. v Burns, 2020 WL 2776495

Defense verdict for the trucker! The Court of Appeals in California affirmed the jury verdict in favor of the trucker. The court agreed that the evidence supported the conclusion that the plaintiff hit the trucker who was operating safely at the time of the accident. Owens v. Burton, 2020 WL 3120354

The Third Circuit Court of Appeals in Louisiana reversed summary judgment granted to a motor carrier who claimed that there was no evidence that cargo fell off the truck and struck the plaintiff. The court held that there was a possible argument that the driver failed to keep a lookout on the roadway and may have negligently struck an item in the road which flew up and hit the plaintiff. Woods v. Weinstein, 2020 WL 2897236

The District Court in South Carolina also refused summary judgment to a motor carrier on a claim of punitive damages. The court held that there was enough evidence to support a claim of negligence per se, which could lead to a claim of punitive damages when the truck driver hit the plaintiff’s vehicle from the rear. Furr v West Coast Distributing, Inc., 2020 WL 2833688

Worker’s Compensation
Who is the employer is often a question in worker’s compensation cases. Despite a contractual agreement that a driver solution company was the employer responsible for benefits, the Commonwealth of Pennsylvania held that the motor carrier was the employer responsible for paying Claimant’s WC benefits. Control over the operations of the driver was the critical factor. R&L Carriers v. Worker’s Compensation Board, 2020 WL 3125307

 

What is the meaning of “under dispatch” under an occupational accident policy? The issue was addressed by the Northern District of Indiana this month. The court concluded that while the driver was in his personal vehicle driving to get paperwork left at home he was still under dispatch and coverage was afforded under the policy. Priddy v. Atlantic Speciality Insurance Co., 202 WL 3451663

 

The Supreme Court of Idaho concluded that the the Department of Insurance had the statutory authority to review an insurance carrier’s application of a rule promulgated by a rating organization for the calculation of premium rates, such as NCCI’s Basic Manual Rule 2.H.2 The court held that the DOI could determine whether the independent contractors could be included under the trucker’s compensation policy for premium purposes. In Re Idaho Workers Comp. Bd., 2020 Ida LEXIS 114

 

Cargo
What can you get in discovery when the issue relates to whether the product was damaged? The Middle District of Florida found that the motor carrier could not overcome the rebuttable presumption that documents prepared before its insurer’s definitive denial of the claim against the insurance policy were created in anticipation of litigation. Rather, from the submissions provided, documents generated before the transmission of the claim denial letter were created in the ordinary course of business to investigate the insurance claim and were therefore subject to disclosure. Scotlynn USA Division, Inc. v. Titan Trans Corp., 2020 WL 3100087

If the shipment is transported in violation of FDA temperature guidelines does that mean that the shipper has proven the product unfit? The Southern District in Florida said no concluding that it was not enough to prove damages. While the carrier did breach the contract by failing to pick up the international shipment of fish within the time of performance that was not enough to meet all of the elements necessary for summary judgment. In a related motion the court held that the trucker could not assert an indemnity or negligence claim against the steamship line where the cargo sat for the extra days. Underwriters at Interest v All Logistics Grp. 2020 U.S. Dist LEXIS 91810

Another default judgment. This month the Eastern District of California granted judgment for the non-delivery of a shipment of wine. USA Truck v. Jugan Express, Inc., 2020 WL 3451580

Thanks for joining us,

Jean & Chad

© 2020 Central Analysis Bureau