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Bits & Pieces

January 2020

CAB Bits & Pieces January 2020

Happy Holidays!

Happy New Year and welcome to the “Rolling Twenties!” As the new decade takes effect, and challenges continue in the industry, know that CAB is here to help. As CAB enters its 81st year, we look forward to providing outstanding service and constant innovation to help you “Make Better Decisions.” Always know our users are welcome to reach out to us with questions and ideas as they relate to our tools and resources.

Live Training!

Live training is back! Have some new employees? Just want to listen to one of our fabulous team members and ask some questions? Want to see how the tips and tricks are being implemented? Each month we will have scheduled training which will be available to individuals with access to CAB Services. There will be two sessions, a Basic Training and a Focused Training Session. This month on February 11th Mike Sevret will walk you through a Basic Training Session and on February 18th Chad Krueger will be hosting a focused session on CAB for Loss Control. You 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 some focused training that you might want to see. We are looking forward to connecting with you during these sessions.

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CAB’s Tips & Tricks: Chameleon Enhancement

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

Over the last month we have enhanced the Chameleon Carrier Detector to now identify matching company representatives. This was a difficult process as there can be numerous duplicate names and motor carriers often have multiple representatives. As an example, simply searching for John Smith as a Representative via Carrier Central will return hundreds of variations of the name John Smith. However, representatives become of value when your standard search is done, you click the Chameleon Carrier® icon and the Chameleon Carrier®Report will identify if a similar name is also identified, which can warrant additional investigation and understanding.

Incorporating a motor carriers’ Representative into our Chameleon Carrier® search algorithm has been a priority, as this is a feature that has been suggested by users a number of times. Keep in mind, there are many duplicate names out there. Make sure to cross reference to ensure the duplicate name is not a false positive. That being said, we’re happy to provide this additional feature and we certainly hope it enhances your use of CAB.

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’s CDL Drug & Alcohol Clearinghouse is Open for Business…After Initial Technical Difficulties: Currently users are greeted with this notice: “If you are an employer currently experiencing technical difficulties accessing the Clearinghouse and are unable to conduct required pre-employment queries, you may hire a driver using solely the procedures set forth in 49 CFR 391.23(e). Once FMCSA has determined and announced that users are able to access the Clearinghouse, pre-employment queries must also be conducted as required by section 382.701(a).” The effective date for the clearinghouse was January 6, 2020, but the site crashed as much of the industry attempted to use it in the initial days of the system. Ultimately, employers are given a pass, but they will need to ensure proper documentation. For more information on the CDL Drug & Alcohol Clearinghouse click here.

Entry Level Driver Training Rule Delayed Until February 22, 2022:  The FMCSA is amending its December 8, 2016, final rule, “Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators” (ELDT final rule), by extending the compliance date for the rule from February 7, 2020, to February 7, 2022. The agency noted the action will provide FMCSA additional time to complete development of the Training Provider Registry (TPR). The TPR will allow training providers to self-certify that they meet the training requirements and will provide the electronic interface that will receive and store entry-level driver training (ELDT) certification information from training providers and transmit that information to the State Driver Licensing Agencies (SDLAs). The extension also provides SDLAs with time to modify their information technology (IT) systems and procedures, as necessary, to accommodate their receipt of driver-specific ELDT data from the TPR. According to the release, the FMCSA is delaying the entire ELDT final rule, as opposed to a partial delay as proposed, due to delays in implementation of the TPR that were not foreseen when the proposed rule was published.  For additional information on the final rule amendment, click here.

2019 Pocket Guide to Large Truck and Bus Statistics has been released by the FMCSA: The guide highlights the Agency’s role in collecting and analyzing data on large trucks and buses. Intended as a compact reference, it is a compilation of statistics from the overall state of the industry to enforcement activity, details on traffic violations and other incidents, the costs of crashes, and more. These data are used in support of their mission to prevent commercial motor vehicle-related fatalities and injuries. An example of the data provided is visible via the map below that details the Locations of Fatal Large Truck and Bus Crashes, 2017. The Pocket Guide can serve as a valuable, compact resource for industry representatives, Federal agencies, and other individuals interested in motor carrier safety regulations and performance data. The guide can be accessed here.

Indiana State Police finds Truck 96,300 Pounds Overweight: A truck inspection January 16, 2020 by Commercial Vehicle Enforcement Division (CVED) Trooper, led to the discovery of a semi-tractor pulling double trailers that was 96,300 pounds overweight. That is a whopping total of 176,300 when the normal truck weight is limited to 80,000 pounds. This weight likely exceeded the braking capacity and presumably the overall frame and structure of the vehicle making the vehicle difficult to accelerate, brake and maneuver. The CVED Trooper was driving through Rushville just before 11 a.m. that morning when he noticed a southbound semi pulling double trailers known as a “Michigan Train” south bound on Main St. at Park Blvd. The fines for the overweight violation alone are just under $14,000. The truck out of Waterloo, Indiana, was impounded and the driver cited for the overweight violation and no truck registration. The driver was also issued a warning for no federally required markings or numbers on the sides of the truck. The steel coils, which had been in route from Butler, Indiana to Madison, Indiana were impounded with the truck until they can be properly unloaded and legally loaded onto other trucks. More information on this inspection can be found here.

FMCSA Announces Input on Design of a Study to Identify Factors Contributing to FMCSA Reportable Large Truck Crashes: The FMCSA seeks information on how best to balance sample representativeness, comprehensive data sources, ranges of crash types, and cost efficiency. The FMCSA is trying to better understand and address why large truck crashes and fatalities have been increasing in recent years. Eventually, this study will help improve FMCSA and its State partners’ ability to: 1. Evaluate crashes involving large trucks and identify emerging trends; 2. Monitor crash trends and identify causes and contributing factors; and 3. Develop effective safety improvement policies and programs. Additional information on the Request for Information (RFI) concerning large truck crash causal factors study can be found here.

CAB Inspection Selection System (ISS) Data Updated as of January, 6, 2020: The first table shows ISS Values, 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. 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.

Report Rates Best States for Highway Safety Laws: For the fourth year in a row, Rhode Island has topped Advocates for Highway and Auto Safety’s list evaluating states’ road safety enforcement efforts. Advocates, as the group is known, released its 2020 Roadmap of State Highway Safety Laws on Jan. 23. Advocates is a consortium of consumer, public health, safety and insurance firms that supports policies and programs designed to promote highway safety. Rhode Island, having enacted 13 of the recommended safety laws, received the top score. The state lacks only an all-rider motorcycle helmet law, nighttime restrictions to limit unsupervised teen driving from 10 p.m. to 5 a.m. and regulations on the age limit for unrestricted license use. An unrestricted license allows teens to drive without the supervision of a guardian or instructor. Advocates urges for unrestricted licenses to be granted no sooner than age 18. Click here for the full press release and report.

FMCSA Announces Increase in rate of random drug testing: 2018 FMSCA Drug and Alcohol testing survey results increased to a 1.0% positive rate for controlled substances random testing, up from 0.8% in 2017 and 0.7% in 2016. Regulations mandate that the FMCSA increase the minimum annual random testing percentage to 50%, up from 25% starting on January 1st of the following year when the rate reported is equal to or greater than 1.0%. This increased testing is expected to result in an estimated $50M to $70M increased costs to the industry in 2020. For more information on the announcement click here.

CASES

Auto
The Supreme Court in Florida held that a trucking company could be liable for injuries to a tow truck operator who was damaged from contact with spilled battery acid. The court reversed a prior ruling that held that the Pollutant Discharge Prevention and Control Act did not support a claim for personal injuries concluding that subsequent changes to the law required a different result. Lieupo v. Simon’s Trucking, 2019 WL 6904130

Both a truck broker and an affiliated motor carrier had summary judgment in their favor affirmed by the 7th Circuit. The court agreed that the evidence showed that the broker had hired an independent motor carrier who was the only one responsible for the truck accident. Under Illinois law there was insufficient evidence that the broker asserted any control over the motor carrier. Kolchinsky v. Western Dairy Transport, 2020 WL 58294.

Can a motor carrier be liable for the punitive damages claim asserted against a driver? The Court of Appeals in Louisiana concluded that an employer may be held liable for exemplary damages awarded against an employee under La. C.C. art. 2315.4, particularly, where the evidence shows that the employer contributed to or might have prevented the employee from driving while intoxicated. The court did, however, grant judgment to the motor carrier on the claims for negligent supervision, training and entrustment as vicarious liability was admitted. Landry v National Union Fire Ins Co. of Pittsburgh, 2019 WL 7288685

Having a BOC-3 filing establishing an agent for service of process in the state was not enough to create jurisdiction in the Southern District of Ohio. While the motor carrier could not completely get the case dismissed, it was transferred to the correct venue. Stehle v. Venture Logistics, 2020 WL 127707

A jury verdict against a trucking company was upheld by the Court of Appeals in Wisconsin for damage to a private bridge which collapsed under the weight of a truck.. The court agreed that the bridge owner owed no duty to the driver, dismissing the counterclaim for damages and affirming the damages awarded to the bridge owner for the loss of the bridge. Farkhauswer v. Hestad, 2020 WL 64371

When an individual hit the side of a truck, causing injury to himself and the truck driver he was not permitted to recover for his alleged injuries. The Court of Appeals affirmed the grant of summary judgment to the truck driver, concluding that there was no question but that the passenger vehicle operator was the sole fault for the accident. Chaney v. Martin, 2020 WL 114632

Over in Texas a motor carrier was successful in transferring a personal injury action to a different division in the Northern District of Texas. The court concluded that both the private and public factors which should be considered supported transfer. The court found that, as a practical matter, transferring the case to the Amarillo Division, closer to where the incident occurred and where non-party witnesses are likely to be located, would make for a more expeditious and inexpensive trial. Leighty v. Stone Truck Line, Inc., 2020 WL 85152

Some litigations seem to never get resolved. The Appellate Division in New York is still grappling with a case arising from a truck accident in 2009, over 10 years ago. A police officer was struck by a truck driver. The interrelationship of all of the parties involved in the transportation continues to be in dispute even after 10 years. The court granted judgment to the plaintiff on liability against the driver for some causes of action. The court denied judgment to some of the defendants, concluding that they failed to sustain the burden of establishing that they had no relationship to the driver. The Graves Amendment was held to apply to claims against the tractor and trailer owners who had leased the equipment to the motor carrier. Cioffi v. S.M. Foods, 2019 WL 7160593

Despite false driver logs, failure to take a drug test and striking plaintiff, the Northern District in Texas granted summary judgment to a motor carrier for all claims except a claim of negligent training. The court held that there was no material fact to support claims for negligent hiring, entrustment or punitive damages. Baird v. Shagdarsuren, 2020 WL 208815

Summary judgement was the proper remedy for an insurer when the tractor trailer involved in an accident was not covered under the auto policy. Quick decision by the court in the Western District of Virginia, Progressive Northern Ins Co. v. Jones, 2020 WL 216011

A truck repair facility was permitted to assert the arbitration clause in its repair contract against the truck driver and an injured plaintiff who sought recovery for alleged improper repairs which led to the accident. The Middle District in Alabama held that both parties essentially sought a claim for breach of contract of repair which was dependent upon the terms of the contract. Since the contract had an arbitration clause the case was bounced to arbitration. Griggs v. Kenworth of Montgomery, Inc. 2019 WL 7190610

While the Northern District of Texas left most causes of action to continue against a motor carrier, including negligence, negligent entrustment, hiring, training, supervision and gross negligence, it did conclude that a possible violation of a state regulation on lane change would not give rise to a claim of negligence per se. The court also concluded that the gross negligence, if any, of the driver, was not ratified by the motor carrier, dismissing that claim against the motor carrier. Hanan v. Crete Carrier Corporation, 2020 WL 42269

What happens when improper gravel is potentially put on a roadway and a truck accident occurs? The District Court in North Dakota considered that issue, granting summary judgment to the gravel supplier concluding that there was no basis for a claim that they provided defective gravel. However, the court denied summary judgment to the contractor who put down and maintained the road, concluding that there were questions of fact as to the events and the cause of the accident. Rice v. North Star Energy & Construction, 2019 WL 7372434

The applicability of the employee exclusion was considered by the Northern District in Ohio. The court concluded that questions of fact remained to be resolved on whether the driver could be considered a “temporary employee” under the trucker’s general liability such that the Employer’s Liability Exclusion would not apply. The fact that the driver was determined to be an employee under worker’s compensation was not determinative on the issue of the applicability of the exclusion. The court also denied the insurer’s request for a ruling that certain parties were not insured under the policy. P&I Motor Express, Inc. v. RLI Insurance Co., 2019 WL 7282098

The father, and owner of a trucking company, was not personally responsible for the assault his son committed upon the plaintiff while acting as an employee of the trucking company. The Court of Appeals in Ohio vacated a default judgment entered against the father. Gibbs v. Burley, 2020 WL 105096

A driver who was injured when struck by a passenger vehicle while he was on a ramp to the trailer was permitted to collect under the SUM endorsement in the motor carrier’s policy. The court found a matter of law, that the driver was “upon ” the tractor-trailer at the time of the accident such that he was “occupying” the tractor-trailer within the meaning of the SUM endorsement. He had stepped upon the ramp which was attached to the tractor-trailer, and was struck by the minivan while his right leg was still on the ramp, and stepping down with his left leg. Although the driver had been away from the tractor trailer during the work day, his testimony established that at the time of the accident, he was in physical contact with the vehicle, such that he was “occupying” it. Utica Mutual Insurance Co. v Steward, 2020 WL 216755

The Superior Court in Delaware concluded that a plaintiff, who was seeking damages caused when he aided a party injured by a collision with the defendants, had failed to take reasonable steps to complete service on a truck driver and dismissed the action against the driver. The court did find, however, that the principle of a trucking company, and his company should be deemed served by reason of this active avoidance of service. DeShields v Bolton, 2020 WL 242482

Cargo
The District Court in New Jersey granted a motor carrier’s motion to dismiss a truck broker’s claim for breach of contract and unjust enrichment (for the payment of freight charges). The court determined that the causes of action were preempted under the Carmack Amendment, leaving plaintiff an opportunity to amend the complaint to assert a claim under the Carmack Amendment. Ultra Logistics, Inc. v. A First Class Solutions, LLC., 2019 WL 7047243

A suit against a motor carrier and its related brokerage operation failed in the Third Circuit. The claim arose from the theft of a shipment of copper by an individual representing himself as a motor carrier. The court upheld the defense verdict that the Carmack Amendment was the exclusive remedy, that there was no evidence that the motor carrier company was hired as a carrier, or that the broker undertook to be the transporting carrier. AMG Resources Corporation v. Wooster Motor Ways, Inc. 2020 WL 110230

The Northern District of Ohio dismissed a Carmack Amendment claim brought by a broker against a motor carrier concluding that the broker lacked standing to bring the claim. The court then declined to exercise supplemental jurisdiction over the broker’s state law claims, sending the rest of the case to state court. Armark v. UPS, 2020 WL 248976

Worker’s Compensation
Premium audits are always a testy issue. The Appellate Division in New Jersey is considering whether drivers classified by the motor carrier as independent contractors are employees for the purpose of worker’s compensation and the collection of adequate premium. The motor carrier contended that it was the company from whom it hired the drivers who was to have the worker’s compensation coverage. When the third party supplier moved to dismiss the action, asserting a New York venue in its contract with the motor carrier, the court rejected the request. The court concluded that public policy grounds permitted it to compel the matter to proceed in New Jersey. Travelers Property & Casualty Co. of America v. HES Trans, Inc., 2019 WL 7116153

A co-driver who was asleep in the tractor trailer when there was an accident was unable to avoid the preemptive effect of the exclusive remedy of worker’s compensation. The Western District of Oklahoma held that the fact that the driver was in his required off duty hours did not change the fact that he was still an employee acting in the course and scope of his employment. Phillips v. Brittian, 2020 WL 265211

Thanks for joining us,

Jean & Chad

December 2019

CAB Bits & Pieces December 2019

Happy Holidays!

No matter how you celebrate the season, we want to wish you a Happy Holiday! Looking back on 2019, I’m amazed at all we’ve accomplished. From new products to system enhancements, we hope everyone has enjoyed the ride as much as we have. We’re excited about CAB’s future and we can’t wait to share the innovation with you in 2020. From our family to all of you, we wish you a blessed season and a happy new year!

This is Jean, stepping in on Chad’s section of the Bits to extend my personal well wishes to you all. I would like to take a moment to thank the Insurance Industry Charitable Foundation. Food insecurity is near and dear to my heart and I volunteer on the board at Fulfill, the Food Bank of Monmouth and Ocean Counties. This month Fulfill was awarded a $50,000 grant from the organization to fund a Backpack Program to feed hungry children. You should be proud to be part of an organization that does this. If you would like to see what that money is funding you can view this. https://www.facebook.com/fulfillnj/videos/1249018068763093/

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Here’s to a fantastic 2020!

CAB’s Tips & Tricks: Crash Determinations

As many of you are aware, the FMCSA conducted a Crash Preventability Demonstration Program from June 1, 2017 through July 31, 2019. The Crash Preventability Demonstration Program allowed motor carriers or drivers involved in certain crash types (8 types) to submit Requests for Data Review through FMCSA’s DataQs system. Crashes must have occurred from June 1, 2017 through July 31, 2019. For those crashes found to be Not Preventable, FMCSA displays, to enforcement users and carriers logged into their own profiles, the Crash Indicator Behavior Analysis Safety Improvement Category (BASIC) percentiles in SMS with and without the crashes. More information on this program can be found here.

On August 5, 2019, FMCSA published a proposal for a new long term program in the Federal Register that included 15 crash types. The comment period closed on October 4, 2019. The Agency will review all submitted comments to determine any needed changes to the program and will complete required changes to the DataQs system.

A second Federal Register notice will be published to announce the start of the new program. The new program will retroactively accept eligible crashes that occurred on or after August 1, 2019. As a result, all eligible crashes that occurred after the close of the Demonstration Program may be submitted to the Agency when the new program begins.

In preparation for the new, permanent Crash Preventability Determination Program (details) slated to begin in early 2020, we have enhanced our system to reflect when a crash has been determined, by the FMCSA’s DataQ process, to be “Not Preventable” by adding a Crash Determination column. This column can be found in the CAB Report by clicking the Out of Service/SAFER tab and scrolling down to Accident Details (see below).

If your subscription has access to the BASICs Calculator feature, you will also be able to filter to recalculate the Crash BASIC Score by removing the Not Preventable Crashes via the Inspections Tab.

We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. 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:

2019 Trucking Company Failures at Triple the Rate of Previous Year: Many have heard the recent news about Celadon Group, one of the largest trucking operations in the country, declaring Chapter 11 Bankruptcy during the last weeks of December, but that is just the last in a string of shutdowns during 2019. Other notables included New England Motor Freight, HVH Transportation, Falcon Transport and LME. It is estimated that 24,000 trucks were removed from the nation’s capacity as almost 800 companies failed. Some feel the issue is related to spot pricing, which has dropped dramatically since the highs of 2018. Other factors in recent closures like Hendrickson Truck Lines were, in part, the result of unanticipated maintenance costs related to bad lease deals. All in all, 2020 may be shaping up to be another difficult year in the industry as the driver shortage, and labor laws designed to protect contract workers from being misclassified could contribute to additional closures.

As a Final Reminder, Effective December 16, 2019 Fleets Must Convert to ELDs and are no Longer Allowed to use EOBRs: The FMCSA and CVSA have made it very clear that there was no soft enforcement period planned the the EOBR sunset date came and went. We have now completed Phase 2 of the FMCSA’s implementation timeline as of December 16th of 2019 and we are fully in Phase 3 or the Full Compliance Phase. Phase 1 started February 16th, 2017 via awareness and training, and the phased-in compliance timeline began almost 2 years ago. The FMCSA provided ample time for the adjustment period and a website is available to identify complaint ELD providers, learn about the rule, interactive training courses, technical specifications and the like. Click here to access the FMCSA’s ELD website.

Roadway Incidents were the Leading Cause of Workplace Death from 2011-2016: Transportation incidents were the most common fatal workplace injury event from 2011 to 2016. Violent events were the second most common event type, followed by falls, slips, and trips. Of those fatal Transportation Incidents, Roadway Incident Involving Motorized Land Vehicle was the leading fatal cause, followed by Pedestrian Vehicular Incident. This continues to be an unsettling trend for our industry. Increased efforts should be made to provide drivers with the tools to drive defensively even as traffic congestion continues to rise. Additionally, seatbelt use and monitoring should be a major emphasis of a good risk management program. For more information, click here.

It’s that time of year…Cargo Theft Season: Christmas season means increased risk of cargo theft. It is estimated that roughly two thefts occur per day during the holiday season, a 20% increase over the remainder of the year. During this time the main targeted item is electronics. Safety recommendations for drivers and motor carriers include:

  • Verify the authenticity of all shipment related activities during these periods – particularly any entity which has been engaged to either move or store a shipment. Driver and business verification, prior to releasing any shipment, is paramount.
  • Communication between drivers and shippers needs to be firmly established and regularly maintained during shipments over these periods.
  • Truck stops, highway rest areas and distribution centers are frequent targets for cargo thieves – not only traditionally but more so over holiday periods. For that reason, any location where cargo would either intentionally or unintentionally come to rest – even for brief periods of time – should be as secure as possible.
  • If a cargo conveyance must be left unattended for any period of time it should be made as secure as possible. Theft-resistant locking/sealing mechanisms for tractors, trailers and cargo compartments; disabling technology for the vehicle’s power units or trailer movements; parking vehicles and/or cargo compartments in a fashion which make access as difficult as possible – are all things worthy of strong consideration.

The Driving Profession is one of the Deadliest Jobs in America : There were 5,250 fatal work injuries recorded in the United States in 2018, a 2 percent increase from the 5,147 in 2017, the U.S. Bureau of Labor Statistics reported today. The fatal work injury rate remained unchanged at 3.5 per 100,000 full-time equivalent (FTE) workers. The lead fatal event or exposure, transportation incidents, remained the most frequent type of fatal event at 2,080, accounting for 40 percent of all work-related fatalities. Based on occupation, driver/sales workers and truck drivers had the most fatalities of any broad occupation group at 966. Among all detailed occupations, heavy and tractor-trailer truck drivers had the most fatalities at 831. For more information on the National Census of Fatal Occupational Injuries in 2018, click here.

Updated BASICs Percentiles as of 11/29/19 for All Motor Carriers Operating in the U.S.:

Data Note: For each BASIC category and power unit range, a) the percentage of carriers in different percentile ranges out of carriers with a percentile, and b) the percentage (out of all carriers) of carriers with a percentile, and of carriers without a percentile due to each of the following three reasons: 1) carrier had no relevant inspections, 2) carrier had no relevant violations, and 3) carrier had violations, but they were too few or occurred too long ago to get a percentile. For the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. 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.

CASES

Auto

The District Court in Florida upheld a trial court determination that a trucking company was not responsible for negligent repairs on a trailer performed by a third party. The tire came off the trailer injuring the plaintiff. The court agreed that repair of the trailer was a delegable duty. The court noted that the driver of the tractor trailer had complied with the pertinent federal trucking regulations and that nothing required a carrier to disassemble a wheel or hub during an inspection to verify that a qualified mechanic performed appropriate repairs. Tuong Vi Le v. Colonial Freight Systems, 2019 WL 6519440

The Southern District in Ohio held that neither plaintiff nor counsel could disparage defendants because the driver was not present at trial. The plaintiff initially agreed that the defendant truck driver would not have to appear at trial, as liability was accepted, reneging on that agreement would not help him when the driver could not be located for trial. . However, the jury should be informed why he was not present, i.e., because he is a Canadian resident, because his breach of duty was stipulated, and because counsel previously agreed he need not participate at trial. Anca v. Gemini Transport, LLC, 2019 WL 6324541

When the trucking defendants are not residents of the state of Texas it becomes even more difficult to argue for change of venue. The Western District of Texas held that the trucking defendants had not shown “good cause” for transfer of the case to the Waco Division. Defendants had the burden to “clearly demonstrate that a transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’ As all of the relevant litigation witnesses and information was basically in between the two proposed venues the plaintiff gets the right to select the venue. Frischhertz v. King, 2019 WL 6606532

The responsibility of pilot cars when there is a loss is always an issue. The Court of Appeals in Michigan reversed a trial court ruling granting summary judgment to the insurer of a pilot car in a suit seeking property damages done to a DOT infrastructure when the transporting vehicle hit the bridge. The DOT, which was permitted to directly proceed against the insurers, filed against both the motor carrier and the pilot car insurers. The court held that pilot car should be deemed to have been involved in the accident and sent the case back to the trial court for further proceedings. DPT v. National Interstate Insurance Co., 2019 WL 6339911

Ryder System, as the owner of a tractor involved in an environmental spill, was entitled to seek full indemnity from the trucking company who had the accident. The Middle District in Alabama held that they were entitled to indemnity under federal statute and further held that the contractual indemnity under the lease also permitted recovery of costs and fees. Ryder v. Charleston Aluminum, 2019 WL 6652510

The Eastern District in Louisiana refused to stay a personal injury action against a trucking company pending resolution of a criminal investigation. The motor carrier defendants contended that the plaintiffs were part of a scheme to rig many accidents to collect damages and that a federal investigation is underway. The court determined that it would proceed with the case on this particular accident and not wait to see if the criminal venue yielded any evidence of fraud. Collins v. Benton, 2019 WL 6728334

The dismissal of the complaint was the appropriate remedy according to the Eastern District of Virginia. When the plaintiffs filed suit in another state, which was dismissed for failure to prosecute, the plaintiff could not rely on that filing date to toll the statute of limitation on a truck accident suit. The court also dismissed a cause of action for loss of consortium because the state does not recognize that as a viable claim. Sirak v. Aiken, 2019 6689912

A truck driver was killed when a third party negligently operated a fork lift unloading the truck and litigation commenced. The Superior Court in New Jersey concluded that neither the premises owner nor the general contractor who hired the unloader was liable for the injuries, affording summary judgment to both of them. The court held that the general contractor was not obligated to check the credentials of every employee of the unloading company. The premises owner also bore no liability as it did not exercise any control or have any knowledge of a potential problem. Chetwynd v Diversified Rack & Shelving, Inc., 2019 WL 6837765

Over in the Court of Appeals in Michigan another truck driver was successful in reversing summary judgement which was given to a shipper following an incident in which an overhead door struck the driver. The court held that the trial court failed to consider whether the entry to the chemical fixation building through the rail door presented a dangerous condition subjecting invitees to an unreasonable risk of harm despite the proper operational functionality of the rail door. Griad v. EQ Detroit, Inc. 2019 WL 6888648

A number of driver cases this month. Another trucker lost his right to proceed in his claim for personal injuries because of his failure to exercise reasonable diligence in serving the defendant. The truck driver had been struck by a vehicle which had originally been struck by the defendant’s vehicle. Plaintiff failed to establish reasonable grounds to avoid the failure to prosecute assertion. Huskins v. Tapley, 2019 IL App 4th 190292-U

A train conductor injured by a derailment when a truck got stuck on the tracks was not permitted to pursue claims for punitive damages or negligent training, hiring or supervising against the trucking company. The Southern District of Mississippi dismissed those claims where the motor carrier conceded vicarious liability. Myers v. Legacy Equipment, 2019 WL 6794194

Strategy in the delay in releasing discovery information does not always work. The Western District of Missouri sanctioned a defendant for failing to fully disclose information on trucks which may have been operating at the location where the loss occurred. The court held that “both the initial and the amended complaint allege Defendant is liable because it is responsible for the driver’s actions. Consequently, any evidence—such as GPS data—that tends to show Defendant did not have any trucks or trailers in the area at the time of the accident, and so by inference no truck drivers it was responsible for in the area, would be information Defendant might use to support its claims or defenses under either the initial or amended complaint.” The defendant was precluded from producing relevant witnesses because of the delay. Trekell v. Target Corporation, 2019 WL 6868963

No success for a trucking company which sought to avoid liability for the actions of an intoxicated truck driver. The court held that although the driver consumed alcohol before driving his tractor trailer in defiance of the motor carrier’s rules, he was on his route to deliver a load and did not deviate from his route and expressed no motive other than to complete his task. He was acting in the course of his employment and therefore the trucking company would be liable for his actions. The court also held that the claims for punitive damages would stand. Laporsek v. Burress, 2019 WL 6718098

A motor carrier was not permitted to remove a case to federal court when it waited to receive a demand in excess of the $75000 jurisdictional limit to file for removal. The Northern District in Alabama held that it facially apparent from the complaint that the damages were in excess of $75,000, even when an amount was not delineated. The case was remanded back to state court. Fuqua v. D&M Carriers, LLC, 2019 WL 6918297

In a declaratory judgment action seeking to compel a non-trucking liability insurer to defend an accident the District Court in New Jersey concluded that the commercial auto insurer had failed to plead a plausible complaint against the non-trucking insurer and dismissed the suit. Leave to amend was, however, given to the plaintiff. Prime Property & Casualty Insurance Co. v. Freightways Logistics, LLC. 2019 WL 6907532

Cargo/Physical Damage
A claim against the insurance broker for failing to make sure that coverage remained in place for physical damage failed in the Appellate Division in New York. When the insurer was found to have correctly cancelled the policy for non-payment the broker was held to have no duty to make sure that the plaintiff received the notice of cancellation and ensure that coverage was obtained elsewhere. MAAD Construction v. Cavallino Risk Management, 2019 WL 6720471

A claim arising from the interstate portion of an international transport was held subject to the Carmack Amendment in the Eastern District of Kentucky. The court held that the motor carrier could be liable, even though it may not have picked up all of the goods because it was supposed to have received them. The court dismissed the state law claims and the claim for attorney’s fees. Next F/X, Inc. v. DHL Aviation, 2019 WL 6868961

Interesting discovery issue addressed in a Carmack case in the District Court in North Dakota. The court held that the plaintiff, who was an assignee of the cargo claim, was not obligated to produce discovery which was only in the hands of the assignor. The Federal Rules of Civil Procedure requires a party only to product documents in their custody. Joe Whatley Jr. v. Canadian Pacific Railway, 2019 WL 6972405

Thanks for joining us,

Jean & Chad

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