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Bits & Pieces

May 2021

CAB Bits & Pieces May 2021

Welcome to the unofficial start of Summer!

Summer is pretty much upon us and things are at least heading towards normal…whatever that ends up being.  This is generally a big month for graduations and the like.  Enjoy the time with family and friends.  Keep in mind, Memorial Day is not just the unofficial start to summer, but an opportunity for us to honor those service members that have fallen in the performance of their military duties. 

Stay safe and have a great month!

CAB Live Training Sessions

Tuesday, June 8th @ 12p EST: Sean Gardner will present on Intro to CAB: Flow and Navigation.   This is a great session for new users or folks looking for a refresher.  Sean will provide an overview of the basic flow and navigation of the overall CAB environment.  Don’t miss out on this opportunity to learn about this powerful CAB feature. Click here to register.

Tuesday, June 15th @ 12p EST: Chad Krueger will present, the BASICs Calculator: Tips & Tricks.  The BASICs Calculator is one of our most powerful tools.  If you’re tyring to help your customer get a handle on their BASIC scores and identify areas of improvement, It’s quickly becoming a must-have resource.  Don’t miss out on this opportunity to learn more about the BASICs Calculator.  Click here to register.

CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

As a quick reminder, last month’s sessions, Adding Motor Carriers to CAB List™ and CAB Advanced Training:m Tips & Tricks have been uploaded to our Webinars Page if you missed them!  

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CAB’s Tips & Tricks: BASICs Calculator-Advanced Projections Simulator Line Graph

Based on user feedback, our Development Team has incorporated a very useful line graph when the Advanced Projections Simulations are run in the BASICs Calculator.  Users desired a visual representation of how the projections would progress via the projections.    This visual can be shared by producers, account executives, safety services, and others with policyholders, customers, and prospects to understand how their BASICs Scores and ISS Values are affected by the different variables available in the Advanced Projections Simulator.  Are you wondering how quickly a company’s scores could improve or drop out of Alert status?  Do you want to share how a company’s scores look 6 months out, based on today’s data using different variables?  Run a simulation and share it with them.  It’s a great discussion point and a wonderful way to provide a different perspective to your clients.

THIS MONTH WE REPORT:

“Significant threat” of cargo theft activity Memorial Day weekend: Cargo theft recording firm CargoNet says it expects a “significant threat” to freight transportation this upcoming Memorial Day weekend.  The firm reviewed data from 2016 to 2020 for the Thursday prior to Memorial Day to the Wednesday after. There were 143 events reported with an average of 29 events per year.  Additionally, activity for the 2020 Memorial Day weekend increased 35% from the same weekend in 2019. The stolen cargo in each event was worth an average of $308,308 – due in part to five thefts that exceeded $1 million in stolen goods.  CargoNet says 20% of recorded thefts occurred on Friday, and a significant number of thefts also occurred on Sunday (16%) and Monday (15%).  To continue this article, click here.

Lawmakers introduce another bill to require speed limiters on larger trucks:  On May 25, Rep. Lucy McBath and Rep. John Katko introduced the Cullum Owings Large Truck Safe Operating Speed Act which would “codify into law a “speed limiter” rule that has been under consideration for more than a decade.”  The detail of the bill is not yet available, however, similar legislation introduced under the same name in 2019 proposed requiring speed limiter technology that would limit commercial vehicles to 65 m.p.h., or 70 m.p.h. Additionally, it would require the use of an adaptive cruise control system and an automatic emergency braking system. The legislation was introduced by former Senator Johnny Isakson.  The American Trucking Association (ATA) has reiterated its support for mandating speed limiter devices in a letter to the Secretary of the USDOT for vehicles over 26,000 lbs.  The ATA suggested a mandated speed limit of 60, 65, or 68 MPH.  The text of the previous bill is available here.

Best practices for controlling CSA maintenance violations: No fleet likes to be dinged for a CSA maintenance violation. If the violation is severe enough a truck can be taken out of service, fines can be levied, and a bad CSA score can scare shippers away.  The good news is there are some steps you can take to help reduce your number of CSA violations.  The nine steps include; pre-trip inspections, post-trip inspections, make repairs found during driver inspections, preventative maintenance inspections, scheduled preventative maintenance services, special maintenance programs, random inspections, and conducting root cause analysis.  Joe Puffs, the Vice President of Truck Technology and Maintenance for NationalLease, discusses the nine steps and provides insight regarding implementation.  To review the complete article, click here.

CAB Calculates Inspection Selection System Data:  Do you ever wonder how motor carriers fit into the ISS Categories of Pass, Optional and Inspect?  Below is a breakdown based on power units and ISS category, by total carriers and percentage.  This data is based on snapshot date of 5/11/21.  The first table shows, for each power unit range; the number of carriers with “safety” scores in the green, yellow, and red ranges, and the total number of carriers with a “safety” score or an “insufficient data” score. The second table shows the data as percentages, out of carriers with “safety” scores or out of all carriers as appropriate. ISS scores are as of the snapshot date listed at the top of the section. 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.

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Canada’s ELD mandate effective June 12 with one-year of educational enforcement:  The Canadian Council of Motor Transport Administrators (CCMTA) detailed the following on May 5th:  All jurisdictions remain committed to the federal Electronic Logging Devices (ELD) mandate, including third-party certified devices. Mandatory use of these devices will help ensure federally regulated commercial carriers operating in Canada including those that cross the border into Canada, will continue to drive within their hours of service. The use of ELDs will result in more efficient mechanisms to accurately log working hours.  The CCMTA developed an approach for jurisdictions to consider when adopting an enforcement strategy for the ELD mandate coming into force on June 12, 2021. Jurisdictions plan to support the mandate through a period of progressive enforcement without penalties including elevated education and awareness until June 12, 2022. The full message can be reviewed here.

New Hampshire state troopers discover 709 violations during CVSA International Roadcheck Event: During the 72-hour event from May 4th-6th, Troopers inspected a total of 356 commercial motor vehicles.  Troopers issued 25 CVSA decals to commercial motor vehicles that passed a Level I inspection where no critical violations were found according to the North American Standard Out-of-Service Criteria.  Troopers also discovered 709 violations, of which 125 were so severe that they created a condition where the vehicle or its driver was placed out of service.  In total, 56 vehicles were placed out of service for critical safety violations, while 29 drivers were placed out of service for violations including possessing drugs, possessing alcohol, driving while not physically qualified, failing to maintain a record of driving hours, not holding the proper class of driver’s license, operating after suspension, and for continuing to drive after being declared out of service. Troopers issued 63 citations and made one arrest as a result of commercial motor vehicle inspections.  Click here for the complete news release.

Specific sleep apnea screening criteria cut in the latest draft medical examiner handbook:  The latest draft handbook for certified medical examiners no longer contains previously proposed details on screening and treating sleep apnea that were part of a prior draft. The withdrawal of those detailed recommendations alarmed some members of the Federal Motor Carrier Safety Administration’s Medical Review Board, which met May 20. “These medical examiners would be in a terrible position if we didn’t arm them” with the detailed tools needed to do their job, said board member Dr. Albert Osbahr. He is medical director for occupational health services at Catawba Valley Medical Center in North Carolina. “Industry doesn’t like it, but they’re not the ones doing the exam. It’s myself and colleagues who are on the firing line.” To read this complete article, click here.

Trade groups call on House Democrats to reject insurance increases:  More than 60 organizations representing the trucking, agriculture, construction, manufacturing, materials, and towing industries are petitioning members of the U.S. House of Representatives to reject an increase of motor carriers’ minimum liability insurance requirements.  In letters sent to the Blue Dog Coalition of fiscally-responsible Democrats and the Problem Solvers Caucus – both of which seek commonsense solutions to various issues – the coalition explains that an insurance increase “is wholly unnecessary” and “would do nothing to improve highway safety and would have a severe negative impact” on their members due to significantly higher operational costs.  The letters state that federal research indicates the current $750,000 minimum requirement covers damages in 99.4% of crashes involving commercial vehicles.  For the complete article, click here.

CASES

Auto Does the MCS-90 apply to intrastate transport? The Court of Appeals in Indiana concluded that it did, based upon the argument that Indiana law required that motor carriers meet the same levels of insurance for intra-state carriage and the policy contained the standard clause that it was in compliance with the applicable state law. The court also held that the endorsement was applicable when there was no cargo on the truck as the driver was on his way to pick up a shipment. Progresive Southeastern Insurance Co. v. B&T Bulk, LLC., 2021 WL 1747897
Summary judgement was awarded to the general liability carrier for a trucker in the Northern District of Texas for claims asserted by a shipper claiming rights under the policy. The court held that the shipper failed to give timely notice to the insurer and further concluded that the auto liability exclusion was applicable. Liberty Insurance Corp. v. Arch Insurance Company, 2021 WL 1950037
A risk retention group is not subject to the direct action statute in the Southern District of Georgia. The court dismissed the insurer from the suit, which also preserved diversity, keeping the case in the court for resolution. The excess insurer of one of the truckers was not so lucky, as the court concluded that the plaintiff was entitled to discovery on whether the insurer was truly excess and therefore not subject to the direct action statute. McIntire v. Ventura, 2021 WL 1947867
A policy endorsement which required that all litigation arising out of the commercial auto policy be brought in the state of Nebraska was not enforced by the District Court in Minnesota in an action in which the trucker sought coverage for an accident. The court rejected the insurer’s motion to dismiss concluding that there were substantial questions on whether the policy was a contract of adhesion and the validity of the claim. Sunlight Logistics, Inc. v. County Hall Insurance Co., 2021 WL 1946658
We talk often about how interrelationships between transportation companies can often result in increased litigation costs, and possible liability. The Eastern District of Virginia agreed that when there was ample evidence to create a question as to which of two companies was actually involved in brokering a shipment the defendant was not entitled to dismissal of the suit. The court also agreed that there was a plausible claim for vicarious liability when the defendant exercised some degree of control over the motor carrier. The court did agree to dismiss a claim for wilful and wanton negligence McCann v. Everette, 2021 WL 1951130
There was no evidence to support a claim of wantonness against a truck driver when he made an effort to confirm that there were no other vehicles in his way before turning. The Northern District of Alabama granted summary judgment to the driver. The motor carrier also received judgement on claims of negligent entrustment, hiring, training, supervision and retention when plaintiff had no evidence that the motor carrier knew the driver was incompetant. In addition, the parent company of the motor carrier was not liable for the acts of the motor carrier when it did not control the acts of the motor carrier. Turner v. Kinds. 2021 WL 1626745
A motor carrier was entitled to summary judgment according to the Supreme Court of Louisiana. The court held that the plaintiff could not support a claim that the truck driver was at fault when he stopped in a lane of traffic, put on his blinker and was waiting to turn into a driveway when the plaintiff decedent struck the rear of the truck. There was no evidence that he had stopped, parked, or left his vehicle standing in the roadway, which was prohibited by Louisiana law. Hester v. Walker, 2021 WL 1920965
The Western District of New York concluded that a motor carrier was not entitled to summary judgment on the theory that the accident was caused by an emergency situation The court held that “a tractor trailer blocking both lanes and vehicles blocking the shoulders of the highway might be an unforeseen or sudden condition depending a great deal on how much notice the driver had before encountering it, how well prepared the vehicle was to be safely stopped, and the speed of travel considering the road conditions at the time”. Lavellee v, Wimberly, 2021 WL 1929169
The motor carrier also fared well in the Western District of Texas. The court, through the Magistrate, recommended partial summary judgment on plaintiffs’ direct claims of negligent hiring; negligent training, supervision, and retention; negligent entrustment, maintenance, and inspection; negligent implementation of a safety program and monitoring against the motor carrier as well as the claims for gross negligence claims against both the carrier and driver and the negligence per se claim against the driver. The plaintiff simply could not present evidence to support those claims. Machado v. Dyer, 2021 WL 1840916
A plaintiff was not permitted to assert direct claims against a motor carrier who conceded vicarious liability for the actions of a driver The Eastern District of Missouri denied the request to amend the complaint, also rejecting the plaintiff’s request to assert new claims against the driver three years into the suit. Frost v Valdez-Gonzalez, 2021 WL 1698743
Such luck did not carry over to the motor carrier in the Court of Appeals in Ohio. The court held that the plaintiff had properly asserted claims against a trucking company for negligent hiring and retention. As the motor carrier was in default in responding to the complaint the default judgment was valid. Gibbs v. Burley Trucking, LLC., 2021 WL 1819831
Plaintiff’s motion for reconsideration on the granting of summary judgment to the motor carrier on a claim for punitive damages failed in the District Court in New Jersey. The case arose from a truck train collision, with a number of train passengers suing the trucking company. The court rejected plaintiff’s request, which was based only on plaintiff’s disagreement with the court’s decision. Jarka v. Holland, 2021 WL 127252
When all parties agree that the truck driver was acting within the scope of his employment immediately before and during the accident, plaintiffs’ claims for direct liability against the motor carrier for negligent hiring, training, supervision, and retention fail. The Western District of Oklahoma dismissed the claims. Estate of Ratley v. Awad, 2021 WL 1845497
Cargo Quiet month on the cargo front. No reported decisions
Worker’s Compensation A truck driver was permitted to seek recovery from the consignee when he was injured during the unloading of the vehicle. The Supreme Court of Idaho agreed that the consignee was not a statutory employer of the driver. The exclusive remedy of worker’s compensation under Idaho law did not preclude a direct claim against the consignee for injuries. Kelly v. TRC Fabrication, 2021 WL 1603734

Thanks for joining us,

Jean & Chad

April 2021

CAB Bits & Pieces April 2021

Spring has sprung!

Will April showers bring May flowers? We can only hope! Welcome to May and the start of warmer weather. This is the season of graduations and summer planning. Did you know according to nationaltoday.com, the Month of May has 138 holidays? It starts with National Beer Pong Day on May 1st and ends with Memorial Day. Other highlights include Star Wars Day 5/4 (May the fourth be with you), National Clean your Room Day 5/10, and National Dance Like a Chicken Day 5/14. However, perhaps the most important holiday in May is Mother’s Day on May 9th.

We hope all the mothers out there have a wonderful month!

CAB Live Training Sessions

Just a quick reminder that last month’s sessions, MC Advantage and CAB for Agents & Brokers were both recorded and are available for viewing at your leisure. They are available at the link below. Additionally, our complete library of recorded webinars is available in the Tools menu under Webinars or by clicking here. If you have a new associate or someone who wants to learn more or needs a refresher, we encourage you to point them in the direction of our pre-recorded webinars.

This month we will present two new live training sessions:

Tuesday, May 11th @ 12p EST: Chad Krueger will present on Adding Motor Carriers to CAB List™. CAB List™ is a powerful management feature that allows individual users to monitor their book of business and prospects. Learn the 5+ ways to add a motor carrier to CAB List™ and how to set up alerts to be notified about changes to your customers and prospects that can be used to better understand a motor carrier’s risk and opportunity. Don’t miss out on this opportunity to learn about this powerful CAB feature. Click here to register.

Tuesday, May 18th @ 12p EST: Mike Sevret will present, CAB Advanced Training: Tips & Tricks. Learn about the various reports that are downloadable within the CAB ecosystem. Inspection details, shared vehicle reports, analysis central, schedules, SALEs leads and much more! This is a great session to get the most out of your CAB experience. Click here to register.

CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

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: ISS-CAB Values and the Stop Light

We often get questions about the ISS-CAB Value and how it is determined. A motor carrier with one alert is listed as inspect/red, but a motor carrier with two alerts is optional/yellow.

In any case, we encourage you to hover over or click on the ‘*Why this score?’ link while in the CAB Report. By doing so that link will detail why the score is what it is.

I’ll be honest, I had those same questions before coming to CAB. Ultimately it has to do with which category the BASIC falls into. Either, BASIC best addressed roadside or BASIC NOT best addressed roadside. You can see the different categories on the right side below. The left below details scenarios that fall into the 3 categories. It is important to note, that a 100 CAB-ISS Value denotes a motor carrier that has been placed Out of Service.

In layman’s terms, Best addressed roadside are generally violations that can be identified while a truck is stopped while NOT best addressed roadside are violations that can only occur while the vehicle is in motion.

Unfortunately, we don’t have enough time or space to explain the specific numerical values, but generally, for Red/Inspect and Yellow/Pass, the more alerts in conjunction with higher BASIC Percentiles, the higher the ISS-CAB Value will be.

THIS MONTH WE REPORT:

Congress Again Eyes Liability Insurance Minimum Increase: A bill that would tie truck owners’ minimum liability insurance requirements to medical care inflation has been reintroduced in the U.S. House. Rep. Jesus “Chuy” Garcia (D-Illinois) first introduced the legislation, dubbed the “Improving National Safety by Updating the Required Amount of Insurance Needed by Commercial Motor Vehicles per Event (INSURANCE) Act” in 2019, but it never advanced past the House Transportation Committee. The original bill called for motor carriers’ minimum insurance levels to be raised from $750,000, based on medical-cost inflation. According to the language of the 2019 bill, the amount of $750,000, which was set as the insurance minimum in 1980, would have had the same buying power as $4.9 million in 2019, based on medical-cost inflation. The bill would also require the Department of Transportation to adjust the liability minimum every five years. The reintroduced bill can be read here.

Large Trucks are Involved in 1/3 of All Fatal Crashes Occurring in Work Zones: “Fatal crashes occurring in work zones are both tragic and absolutely preventable,” said FMCSA Deputy Administrator Meera Joshi. “I am especially concerned that large trucks continue to have a disproportionate involvement in fatal crashes occurring in work zones – 33 percent – when large trucks comprise roughly five percent of vehicular traffic. Don’t allow yourself to become distracted, slow down, obey the signs and the instructions of flaggers and be courteous and safe by giving every vehicle extra space. Highway workers equally depend on you for their safety.” Although Work Zone Awareness Week was April 26-30, awareness should be year-round. To read more about Work Zone Safety and for additional shareable resources, click here.

Biden taps Joshi to lead FMCSA: Meera Joshi, who has served as the Federal Motor Carrier Safety Administration’s (FMCSA) acting administrator since the Biden administration took office in January, is the president’s nominee to head up the agency that oversees the trucking industry. If confirmed by the Senate, Joshi will be the first person to hold the title of FMCSA Administrator since Ray Martinez left the post in 2019. Jim Mullen served as acting administrator after Martinez left. When Mullen retired from the agency last summer, Wiley Deck led the agency as deputy administrator from September until Jan. 20. For more information on the Nominee, click here.

FMCSA wants to further delay electronic medical certification rule’s implementation: FMCSA proposes to amend its regulations to extend the compliance date from June 22, 2021, to June 23, 2025, for several provisions of its April 23, 2015, Medical Examiner’s Certification Integration final rule. FMCSA issued an interim final rule (IFR) on June 21, 2018, extending the compliance date for these provisions until June 22, 2021. FMCSA proposes to finalize the IFR by further extending the compliance date to June 23, 2025. This action is being taken to provide FMCSA time to complete certain information technology (IT) system development tasks for its National Registry of Certified Medical Examiners (National Registry) and to provide the State Driver’s Licensing Agencies (SDLAs) sufficient time to make the necessary IT programming changes after the new National Registry system is available. Additional information on the delay can be reviewed here.

ATRI studying impact of rising insurance costs on trucking: From CCJ Trucking News Brief. The American Transportation Research Institute is in the process of collecting data to better understand the rising costs of trucking insurance and how those costs are ultimately impacting the industry’s overall operational costs. This research was identified as a top priority for the group in 2020. ATRI is asking motor carriers to provide data through an online data collection form that will quantify changes in deductibles, excess insurance over minimum requirements, and how drivers and fleets are balancing insurance costs against rising risk levels. The research will be complementary to ATRI’s annual Operational Costs of Trucking but will provide more granular detail on one of the most volatile cost centers in the annual analysis.

Support mounts to allow drivers under-21 to cross state lines: More than 100 organizations sent a letter to Congressional transportation leaders on Wednesday urging the passage of the DRIVE-Safe Act, legislation that would allow CDL holders under the age of 21 to cross state lines. Promoted as a solution to a shortage of truck drivers, the legislation – first introduced in 2018 and reintroduced last month – would classify 18-to-20-year-old CDL holders as “apprentices” and allow them to drive interstate while participating in an apprenticeship program. Among the transportation stakeholders to co-sign the letter to Congress were ATA, FedEx, National Tank Truck Carriers, Truck Renting, and Leasing Association, Truckload Carriers Association, UPS, and Walmart. Click here to review the complete article.

Tires the No. 2 cause of OOS violations during CVSA blitz: Tires accounted for 2,102 out of service violations (OOS) on the U.S. during 2020’s Commercial Vehicle Safety Alliance International Roadcheck – a whopping 19.7% of all trucks parked during the three-day enforcement event, and second only to brakes as a leading cause. Roughly the same percentage of trucks were parked in 2019 and 2018 with tire and wheel violations. With 2021 Roadcheck kicking off next week, a lot of things can go wrong with a tire. There are 12 tire violations that can place a rig out of service, but with 18 of them needing some degree of inspection, there’s plenty to overlook. For more information on tire safety, click here.

Federal court rules California’s AB 5 applies to trucking, dealing blow to owner-operator model in state: The leased owner-operator model in California suffered a severe blow Wednesday as the Ninth Circuit Court of Appeals reversed an injunction that had exempted the trucking industry from state’s AB 5 law and the ABC test for determining validity of any independent contractor classification. Transportation specialists Scopelitis, Garvin, Light, Hansen and Feary said the California Trucking Association has 14 days to seek rehearing and up to 150 days to appeal with the U.S. Supreme Court. Scopelitis added that the injunction will be lifted either seven days after the expiration of time to request a rehearing or following a denial of a request for rehearing. Or it could be stayed upon further petition of CTA, such as if CTA seeks review by the U.S. Supreme Court. To read more on this ruling, click here.

CASES

AUTO

How much weight is given to the fact that the motor carrier determined that the accident was preventable? The motor carrier did not want that piece of evidence admitted and sought to exclude it. The Southern District of Ohio ruled that “until evidence is proffered explaining how Swift reached its “preventability” determination, no evidence, testimony or statement of counsel, even during voir dire and in opening statements, is permitted referring to Swift’s finding that the subject accident was “preventable.”. If that evidence was introduced at trial the court would then rule on its admissibility. Akbar v. Khai, 2021 WL 1206527

Over in New Jersey the court reversed and remanded an action in which a jury verdict was rendered in favor of the motor carrier. The court held that it was a prejudicial error for the court to exclude the statements of the motor carrier’s safety department that the accident was preventable and that the driver failed to follow protocols. Hassan v. Williams, 2021 WL 1380211

The Northern District in Texas denied a default judgment to an insurer seeking a declaration that the commercial auto policy and the MCS-90 had no application to a claim. The court recognized that the driver was in default, however as other parties were actively disputing the plaintiff’s position the court did not want inconsistent declarations. National Casualty Company v. KT2 LLC., 2021 WL 1338221

Interesting. While a motor carrier would not bear any vicarious liability for an assault that a driver committed following a minor accident, it might bear liability for negligent hiring, retention or supervision of that driver. The Superior Court in Delaware held that there were questions of fact as to whether they should have been more aware of the driver’s violent tendencies. Cook v. J&V Trucking 2021 WL 1292796

In a claim seeking damages arising from a multitruck accident the Western District in Oklahoma concluded that the defendant motor carrier failed to present any evidence that the other motor carrier knew or should have known that its driver was likely to operate the tractor-trailer in a reckless or incompetent manner and therefore was entitled to summary judgment on the claim for negligent entrustment. The fact that the driver had sleep apnea and one minor previous accident was not sufficient to support the claim. Kohler Transport, Inc. v. Central States Trucking Co., 2021 WL 1254682

Whether the commercial auto insurer was obligated to tender payment back to the injured party’s insurer following a truck action remained a question of fact in the Eastern District of Missouri. The court held that the plaintiff was specifically required to plead the facts to support a negligence claim against the motor carrier and that the application of the statute of limitations to the claim would remain to be resolved as the parties disputed when the claim for reimbursement accrued. United States of America v. Secura, 2021 WL 1265200

Over in the Southern District of Mississippi the court permitted the plaintiff to amend her complaint to allege claims for negligent supervision, training, instruction, training and punitive damages. This despite the fact that the motor carrier conceded vicarious liability for the actions of the driver. Clayton v. Gaidarik, 2021 WL 1328920

When there was no evidence that the motor carrier did not comply with its obligations under the federal safety regulations the Western District in Virginia concluded that the plaintiff had failed to support a direct claim for negligence against the motor carrier following a truck accident. The truck driver did not fare as well, as the court concluded that plaintiff stated plausible willful and wanton negligence claims for punitive damages against the driver. Paul v. Western Express, Inc. 2021 WL 1259446

A trial court’s decision to not allow the plaintiff to remove a juror resulted in the 4th District of Florida reversing a defense verdict for a trucker and sending the case back for a retrial. In this case the truck driver was in the southbound lane, was hit by a car traveling northbound, causing the truck driver to flip the vehicle and hit another vehicle resulting in a fatal accident. The jury found the accident unavoidable by the truck driver. Now they will have to retry the liability question. Lafayette v. Moody, 2021 WL 1397538

Can you get cell phone and text records for an extended time period before a crash? The Eastern District of North Carolina agreed that determining whether the driver generally talked or texted during transport was relevant when he struck the plaintiff decedent while on his phone. The records were required to be produced, although the content of the messages would not be released McNeil v. Glasco, 2021 WL 1206588

Speaking of cell phones, consider this. The Eastern District of Pennsylvania held that the plaintiff could sustain a claim for punitive damages based upon the driver’s potential recklessness in looking at his cell phone while driving the truck. He pushed her vehicle for 30 seconds before he noticed that he was doing so, allegedly distracted by the cell phone. Tjokrowidjojo v. San Lucas, 2021 WL 1561956

Whether the truck driver was wanton in causing the truck accident that injured the plaintiff remained to be considered by the jury. The Northern District of Alabama held that the plaintiff had alleged sufficient facts to support a claim when the undisputed evidence establishes that the driver created the circumstances that caused his accident through an unforced error. Johnson v ABF Freight System, Inc. 2021 WL 1320500

. In a related case the court held that the negligence claims against the motor carrier failed under Alabama law because the plaintiff had not demonstrated that the motor carrier knew or had reason to know that the driver was not a competent driver. 2021 WL 1312873

The Eastern District of Louisiana denied summary judgment to the plaintiff on the issue of liability following a truck accident. Even though the truck driver “failed to keep a proper lookout and attempted to change from the right lane to the middle lane, causing his vehicle to abruptly enter [the] Plaintiffs’ lane of travel and collide with [the] Plaintiffs’ vehicle” there remained questions of fact that required that the case go to the jury. Baham v Moore, 2021 WL 1165415

The same motor carrier did well in another jurisdiction too. Direct claims for negligence against the motor carrier failed in the Eastern District of Pennsylvania when the motor carrier conceded vicarious liability for the actions of the driver. While it might be possible if the plaintiff alleged a viable claim for punitive damages, this plaintiff did not. Carson v. Tucker, 2021 WL 1193110

When it was only during the course of discovery that the plaintiff learned that the owner of the tractor and the owner of the trailer were different people the District Court in New Mexico permitted the plaintiff to amend the complaint to assert new claims against those parties. The existing defendants could not show prejudice by the amendment. Haertlein v. Amerifield, 2021 WL 1259663

Plaintiff was unable to sustain a cause of action against Amazon following a truck accident which injured the plaintiff. The Southern District of Indiana concluded that the plaintiff could not support a duty owed by Amazon to the motoring public. There was no factual support for a claim that Amazon was aware of the problems with the vehicle which may have led to the accident. Richardson v Rasulov, 2021 WL 1429005

A win for the motor carrier in the Northern District of Texas. After the parties rested at trial the court granted judgment in favor of the motor carrier on claims of gross negligence. The jury agreed, giving the motor carrier a defense verdict on the direct negligence claim too. Hanan v. Crete Carrier Corp., 2021 WL 1237105

The Eastern District of Kentucky held that a truck broker was entitled to dismissal of the suit filed against it for a truck accident when the plaintiff failed to complete service in a timely manner. Stapleton v. Vicente, 2021 WL 1234636

The Northern District of Ohio refused plaintiff’s request to remand a case back to state court based upon plaintiff’s contention that removal was untimely. The court held that an off the record demand of one million dollars from plaintiff would not constitute an “other paper” triggering the time to remove the case. Perry v. Norfleet Transportation, LLC., 2021 WL 1176769

Be careful when you decide to bring a third party action after moving a case to federal court and the third party defendant is not diverse. The trucking company defendant brought an action against a party who allegedly negligently repaired the plaintiff’s vehicle, causing it to breakdown in the road, leading to the rear end collision with the motor carrier. The Western District of Kentucky held that the plaintiff would also have a right to assert a direct claim against the third party, which would defeat diversity and send the case back to state court. Joyner v. Bestway Express, 2021 WL 1318321

I always think it is important to take a look at discovery motions and the court’s leanings, especially in today’s nuclear verdict world. The District Court in Colorado was considering how much information the plaintiff could get on the general processes and procedures of the motor carrier when vicarious liability for the actions of the driver was admitted. The court held that while the plaintiff was entitled to this information as it related to the driver, it could not seek this information generally about all drivers. Clem v. Moore, 2021 WL 1238284

Across the road in Pennsylvania the Eastern District of Pennsylvania also dismissed all state law claims for property damages and personal injuries stemming from an interstate move where the plaintiff was injured while wheeling his motorcycle up the ramp of the moving truck. The court could not figure out who was the household goods carrier and who was the agent, leaving that issue to be resolved at a later date Cerbone v. Allied Van Lines, 2021 WL 1397011. Claims for negligent infliction of emotional distress and loss of consortium were also dismissed as preempted. 2021 WL 1374608

The Western District in Washington agreed that it was not the proper venue for a complicated coverage analysis as to the applicability of the motor carrier’s tower of coverage to claims against a shipper for injuries to a truck driver when a load of lumber fell on him. The court concluded that as California was also an appropriate venue, and the policies were issued to a California insured, California was a more appropriate venue, sending the case to the Central District of California for adjudication. Weyerhaeuser Company v. AIG Property Casualty, Inc., 2021 WL 1575364

Choice of law is often a pivotal component to a case, which was apparent in this case in the Northern District of Illinois. The plaintiff sought damages for negligence arising from an Illinois truck accident. However the plaintiff also sought damages for willful and wanton hiring, entrustment and retention. The Court found that the motor carrier rebutted, for these specific Counts, the strong presumption that the place of the injury governs. The actions related to the employment of the driver took place in Wisconsin, which would govern those claims. Wisconsin has a much more favorable standard of liability for the trucker. Kleronomos v. Aim Transfer & Storage, Inc., 2021 WL 1545428

CARGO
Even though the plaintiff thought the Carmack Amendment would be inapplicable to a claim that the motor carrier failed to care for damaged property after the loss, the Eastern District in Pennsylvania disagreed. The court concluded that all state laws claims were preempted when the shipment was subject to the Carmack Amendment. Asmis v. Philadelphia Truck Lines, Inc. 2021 WL 1387499

Over in the District Court in New Jersey the court determined that claims for breach of bailment and negligence were preempted by FAAAA in an action seeking recovery for cargo damages. The only claim against the carrier/warehouseman was a claim for breach of contract. Assicurazioni Generali v. Harbor Freight Transport Corp., 2021 WL 1401120

Although preemption is often addressed in the cases we report, it does not extend to totally intrastate transportation. The Eastern District in Wisconsin declined jurisdiction on a cargo claim that arose from transportation within the state of Wisconsin. The court remanded the case back to state court, concluding that there was no federal common law applicable to intra-state transportation. Asphalt Contractors, Inc. v. R&J Transport, 2021 WL 12501

Avoiding the impact of Carmack Amendment venue provisions is difficult. The Eastern District of Michigan concluded that as long as the transport was not for household goods and the contract term did not govern registration, insurance, or safety fitness, a forum selection clause is acceptable, provided the specific venue provisions under the Carmack Amendment were specifically waived (which they were not). The court agreed that a waiver of rights and remedies under the Carmack Amendment must “expressly” reference the statute in some way “on the face of the contract provision in question.” Michigan Custom Machines, Inc. v. AIT Worldwide Logistics, Inc., 2021 WL 1207358

The District Court in Massachusetts granted final judgment to the maintenance company when there was no causal connection between a tire change and damage to the cargo. After 3 years of litigation there was no evidence to support keeping them in the case. Woods Hole Oceanographic Institution v ATS, 2021 WL 1565418

What applies when the parties enter into an agreement to clean, store and move household goods in interstate commerce? The Eastern District of North Carolina concluded that neither an oral contract or a written work authorization were enforceable contracts, but that a claim under the Carmack Amendment might exist. The plaintiff argued that Carmack would not limit her recovery as the transportation services were part of a different primary purpose, i.e. the cleaning and storage and therefore exempt. The court held what the potential for the exemption was not shown without a question of fact and therefore denied summary judgment to the plaintiff. Bryand v. Core Contents Restoration, LLC, 2021 WL 1207719

PHYSICAL DAMAGE
How often do you see that there is an issue with the recorded VIN on the physical damage policy? The 5th Circuit affirmed a lower court decision finding that the insurer could not deny coverage because of an incorrect VIN when the evidence indicated that the damaged vehicle was the one that should have been on the policy. The court agreed with the reformation of the policy. Unfortunately the court also found that the insurer was responsible for a delayed payment, hitting the insured with additional damages under Louisiana law. Jackson v. Berkshire Hathaway Homestate Insurance Co. 2021 WL 142206

COVID 19
We probably are all reading about the insurance claims for business interruption caused by COVID-19. The Eastern District in Virginia considered a claim submitted by a trucking company that lost business when all non-essential in-store businesses were shut down. The court found that the plain language of the insurance policy was unambiguous, and by the unambiguous plain language of the policy, the claim based on the harm caused by COVID-19, a virus, was barred by the Virus and Organic Pathogen Exclusions – regardless of how the phrase “direct physical loss or damage” was interpreted. L&L Logistics & Warehousing Inc. v. Evanston Insurance Co., 2021 WL 1396280

Worker’s Compensation
The estate of a truck driver was unable to enforce a proposed settlement agreement for compensation when the driver was tragically killed in a motorcycle accident. The Court of Appeals in Iowa concluded that the estate could not establish that the settlement terms had been agreed upon by the parties prior to the death. The worker’s compensation settlement would be drastically impacted by the death of the claimant. Estate of Albaugh v. UPS Freight, 2021 WL 1400087

Thanks for joining us,

Jean & Chad

© 2021 Central Analysis Bureau