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Bits & Pieces

Bits & Pieces – November 2021

We hope your Thanksgiving was great, and on to the holidays and the New Year!

Looking back on November, our first Town Hall webinar was a big success. We had hundreds of CAB users attend the event live, and many others reviewed the recorded webinar. We had several user questions submitted prior to the event and many more asked live while the event was underway. 

We appreciate those that provided questions for the CAB Team to answer. We didn’t get to all of the questions, but we were able to reach out to individual users as well. 

We look forward to doing a similar format in the future. As always, please feel free to provide feedback on our topics and suggest new ones as well.

As we head into December, Jean, Shuie and the whole CAB team want to wish each of you a wonderful, safe, and healthy holiday season.

CAB Live Training Sessions

Please note, due to how the days fall this December, we will be only having one live webinar (see below). 

Tuesday, December 14th @ 12p EST: CAB for Logistics. Learn about the plethora of tools and resources available for Logistics and Freight Brokering companies, plus how to use them to identify new opportunities such as motor carriers and shippers. You’ll also learn how to use CAB List to monitor the fleets in your stable to better understand operations, cargo hauled lanes, and more. Click here to register.

Don’t forget, you can explore all of our previously recorded live webinar sessions on our website!

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CAB’s Tips & Tricks: Detailed breakdown of Crashes, Inspections and Time Spent Inspected

Here’s how to use our new hover and pop-up detail in the Inspections/Accidents Tab, including Unit Summary section under Crashes, Inspections and Time Spent Inspected. When you hover over each of the sections you will view this additional breakdown information detailed below:

  • Crashes: Fatality vs. Injury 
    • We provide the number of fatalities and injury crashes. The count of crashes left over would be the number of tow-away inspections. There are 3 types of crashes with the FMCSA: fatalities, injuries, and tow-aways. With the example below, this motor carrier has zero fatalities, 1 injury crash, and 4 tow-away crashes.
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  • Inspections: Fixed vs. Roadside.
    • Fixed inspections are inspections that take place at a fixed location like a scale house or Safety Weight Enforcement Facility (SWEF). A roadside inspection is normally performed by a mobile unit like a state patrol squad car. In the example below, the motor carrier has had 91 total inspections in the prior 12 months, 49 Fixed and 42 Roadside.
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  • Time Spent Inspected: Average time per inspection.
    • This detail provides the average amount of time per inspection for each of the 91 inspections. As indicated, the total inspection time is 1 Day 20 Hours 36 Minutes. Please note, the time provided is the amount of time spent and then recorded by the inspector conducting the inspection. It does not account for any additional downtime for that driver and/or vehicle such as waiting for an Out of Service vehicle defect to be repaired or a driver Hours of Service violation (10, 11, 14-hour, 36-hour reset, or the like) to be observed.
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This new feature is provided to help CAB users better understand the underlying information in each of the above sections quickly. Our ultimate goal is to work with our users to “Make Better Decisions”. If you have any questions about the above enhancement, please feel free to reach out to the CAB business team and we will be happy to help.

THIS MONTH WE REPORT:

Cyber threats in trucking have skyrocketed since the onset of pandemic: A new report from cybersecurity company Coro predicts escalating cyber attacks on transportation and trucking companies that are supporting an already duressed supply chain this holiday season. For the complete article from CCJ, click here.

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New ATRI Study Quantifies the Impact of Small Verdicts and Settlements on the Trucking Industry: The American Transportation Research Institute (ATRI) released a follow-up analysis to its 2020 hallmark report on The Impact of Nuclear Verdicts on the Trucking Industry, determining that a different plaintiff litigation model is impacting the industry: small cases. The research used a new ATRI dataset of more than 600 cases resulting in either a settlement or verdict award of less than $1 million.

 This study showed that settlement payments are approximately 37.7 percent larger than verdict awards, and 393 percent more likely to occur in incidents involving a fatality. Additionally, incidents involving a severe injury were 217 percent more likely to settle and 199 percent more likely to result in payments to plaintiffs over $600,000. To request the full report from ATRI, click here.

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Rear impact guard now part of annual truck inspection: Rear impact guards have been added to the checklist of annual truck inspections according to the Federal Motor Carrier Safety Administration, following from government agencies and a truck safety advocate whose two children were killed in a truck accident eight years ago. Rear impact guard inspections will begin Dec. 9. Trucks that fail to pass will not be placed out of service (OOS), but each violation could result in a max fine of $15,876 for carriers and $3,969 for drivers. For the complete article from CCJ, click here.

FMCSA: Fatal large truck crashes increased in 2019: The number of fatal accidents involving large trucks (defined as vehicles with a gross vehicle weight rating over 10,000 pounds) increased by 1% from 2018 to 2019, according to the Federal Motor Carrier Safety Administration’s recently updated Large Truck and Bus Crash Facts. While the actual number of fatal crashes rose, the number of fatalities in crashes involving large trucks dropped from 5,006 to 5,005 from 2018 to 2019. Click here to review additional information on this topic.

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DRIVE Safe Act becomes law: What you need to know: The DRIVE Safe Act, part of the $1.2 trillion infrastructure bill President Joe Biden signed into law on Monday, has created a pathway for drivers under 21 years old to enter interstate trucking just as it’s become more vital, and more profitable, than ever before. For the complete article on this important topic, click here.

Number of people 75 and older in the labor force is expected to grow 96.5 percent by 2030: According to the Bureau of Labor Statistics, the labor force is expected to increase by 8.9 million, or 5.5 percent, from 2020 to 2030, including a 96.5% increase of people aged 75 years or older within the labor force. For more information, click here.  

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Livestock haulers get additional HOS exemption in infrastructure law: The law already exempted livestock haulers from HOS rules while operating within a 150 air-mile radius (roughly 172 land miles or three hours’ driving) from the source of the shipment. Now, livestock and insect haulers will only have to abide by hours limitations if they exit the 150 air-mile radius of both the pickup location and the destination. 

This move expands livestock and insect haulers’ potential single-trip hours-exempt length to around six hours one-way. Additionally, such a hauler would only be required to use an ELD if he or she had logbook-necessary trips for more than 8 days in any rolling 30-day period. Click here to review the additional detail in the Overdrive article.

CargoNet warns of increased cargo theft activity around Thanksgiving: Cargo theft recording firm CargoNet is warning truck drivers and fleets of an enhanced risk of cargo theft around the upcoming Thanksgiving holiday period. Theft reports were most common in states that have cargo theft problems throughout the year, including California, Texas, Illinois, Georgia and Florida. Cargo thieves targeted shipments of televisions, major appliances, mixed electronics, and alcoholic beverages the most in this analysis period. For more information on this topic, click here.

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ATRI’s Latest Operational Costs Report Documents the Scale of COVID-19 Impacts on Trucking: The American Transportation Research Institute has released the findings of its 2021 update to An Analysis of the Operational Costs of Trucking. The new “Ops Costs” research is based on detailed 2020 financial data provided directly by motor carriers of all sectors and fleet sizes. 

The various line-item cost centers clearly document the numerous impacts that the COVID-19 pandemic had on trucking and the economy in general. The 2021 Ops Costs report documents the effect that faster truck speeds, due to low overall traffic levels, had on multiple line-items, as well as the sector and commodity volatility that occurred as consumers were forced to dramatically change spending habits. 

In addition to faster truck speeds, COVID-19 impacts were considerable: 

•dead-head miles increased to 20.6 percent

•annual operating miles decreased to 89,358 miles per truck

•fuel costs declined by nearly 20 percent to 30.8 cents per mile

Findings independent of COVID-19 impacts include:

• insurance costs rose more than 18 percent to 8.7 cents per mile – the highest in the Ops Costs report history

• while truck driver wages increased from 2019 to 2020, benefits costs per mile decreased

• overall truck driver compensation was 73.7 cents per mile

• safety and retention bonuses increased by 10.5 percent and 14.2 percent respectively

• starting bonuses dropped by 10 percent 

Overall, the average marginal cost per mile incurred by motor carriers in 2020 decreased 5 cents per mile to $1.64. When the per-mile costs are converted to hourly costs, the report found that total hourly costs dropped slightly to $66.87. To obtain the full report, click here.

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CARGO

The Northern District of Ohio agreed with a truck broker that it was entitled to a default judgment on its claim against a motor carrier for a cargo loss. Under the terms of the broker carrier contract the motor carrier agreed to indemnify the broker if it paid claims. The court agreed that the Carmack Amendment applied and that the broker had made out a prima facie case for recovery. GlobalTranz Enterprises v. State to State Freight, LLC., 2021 WL 4990815

A household goods carrier was entitled to dismissal of a state law claim brought under the Unfair Claims Practices Act as the claim was preempted by the Carmack Amendment. The carrier was not, however, entitled to dismissal of the claim for attorney’s fees as there was a potential for that to be a proper claim under the federal regulations governing household goods carriers. Fields v. Allied Van Lines, Inc., 2021 WL 5181027

As the plaintiff failed to properly allege whether CH Robinson was acting as a motor carrier, or a freight forwarder, the District Court in Idaho dismissed the complaint, allowing the plaintiff to re-pled a proper complaint if the facts existed to support such a claim. As plaintiff was contending that CH Robinson was a freight forwarder or carrier, the court dismissed any negligence claim as preempted. Interesting read and a good explanation of Carmack venue provisions if you are interested. Gargoyle Granite & Marble, Inc. v. Opustone, LLC., 2021 WL 5451497

The District Court in Delaware granted a default judgment to a household goods plaintiff this month. The court held that the defendant’s invoking the Carmack Amendment without identifying the statute did not establish a meritorious defense that the state law claims were preempted. The court also held that the just retained counsel’s request for an extension of time to answer only 11 days after the answer was due was insufficient when it did not explain the 11 day delay. That was a tough one. Pay attention to dates. Taylor v. American Van Lines, 2021 WL 5415307

Wow, another Carmack trial reported this month. So rare. The District Court in Minnesota considered liability issues, and the application of a limitation of liability. Unfortunately for the motor carrier it failed to meet its burden of providing an act of the shipper as a defense to liability for damage to a printer. However, the court ultimately agreed that the motor carrier’s liability was substantially limited under its broker-carrier agreement, noting that it would have held the broker fully liable for failing to address the limitation of liability if the broker were still part of the suit! Dubow Textile, Inc. v. Western Specialized, Inc. 2021 WL 5505447

AUTO
When a truck driver stopped his vehicle on the side of the road, blocking the view for drivers entering an intersection, the Court of Appeals in Kentucky held that there was a question of fact as to whether that truck driver could be liable when a passenger vehicle was struck when it entered the intersection without a clear view. Since reasonable minds could differ as to whether the tractor trailer being parked on the shoulder of the highway was a substantial factor in causing this accident, granting summary judgment on this issue was improper. Crabtree v. Baldwin, 2021 WL 5264339

When a bus was out of service for more than a year and injured a maintenance worker during repairs, neither the general liability or the auto liability policy of the bus company were triggered. The bus was not listed on the auto policy. The Eastern District of Wisconsin held that the MCS-90B was inapplicable because the bus was not being used in interstate commerce at the time of the event. The Form F Endorsement was also inapplicable because the repair of the bus was not a negligent operation of the bus. Lancer Ins Co. v. Personalized Coaches, Inc., 2021 WL 5326569

The lessor of a vehicle was granted summary judgment in a suit in which the truck driver sought damages for injuries suffered while operating the vehicle. The Eastern District in Arkansas held that the driver had failed to create a question of fact as to whether the lessor was aware of any defect in the vehicle when it was released to the motor carrier. Lacy v. Ryder Truck Rental, Inc., 2021 WL 5282759

The fact that a plaintiff did not specifically allege the amount of damages until later in the suit was not enough for a trucker to argue that removal was proper when it filed a late notice of removal. The Southern District of New York held that the trucker was given ample support for the severe injuries, including 1,000 pages of medical records, months before the removal. Too late and so back the case went to state court. Pizarro v. Langer Transportation Corporation, 2021 WL 5326433

Broker liability is again an issue. This month the Northern District in Illinois agreed that a truck broker bore no liability for a truck accident. While there was some support that the broker had a level of control over the shipment, the court held that the level of control was insufficient to to support vicarious liability for the actions of the truck driver. Summary judgment was granted to the broker. Ye v. Global Sunrise, Inc., 2021 WL 5083753

The Eastern District in Louisiana refused to grant plaintiff’s request for a negative inference that a truck driver was intoxicated at the time of an accident when there was no bad faith on the part of the defendant in not having a alcohol test completed. The plaintiffs could not show that the results of a drug or alcohol test ever existed, let alone that they were destroyed. Nor was there any evidence that the driver was ever asked to submit to a drug test. The fact that the policies of the trucking company and the DOT required the test was not enough to show that it was anything more than a negligent failure to have the test done. Collins v. Benton, 2021 WL 5283974

The plaintiff withstood a motion to dismiss and was permitted to pursue claims for punitive damages against a motor carrier and a maintenance company for injuries suffered when the recently worked on tires came off the truck and struck the plaintiff’s vehicle. Plaintiff had sufficiently alleged facts to support claims of gross negligence on all parties following the repairs. Off to discovery it goes. WIlliams v. Korn, 2021 WL 5233327

The Superior Court of Pennsylvania agreed with an insurer and its insured, an equipment lessor, that its layers of excess insurance provided no coverage to the trucking company lessee. The excess policies were unambiguously not applicable when the lease required coverage only on a primary level for a million dollars. Old Republic Insurance Co. v. Pocono Motor Freight, Inc., 2021 WL 5232422

Lucky for the trucking company, the Court of Appeals in Georgia agreed that the trial court abused its discretion in imposing harsh sanctions on the trucker for failing to maintain data from the GPS system following an accident. The court agreed that there were other ways for the plaintiff to get the information, which was not destroyed in bad faith. An adverse inference that the driver was speeding and routinely did so with the knowledge of the motor carrier was too harsh a penalty. Cowan Systems v. Collier, 2021 WL 5114936

Louisiana does seem to be a venue with numerous reported decisions addressing potential fraud in truck accidents. This month the Court of Appeals in Louisiana denied a motor carrier’s request to subpoena cell phone records from a third party when the defendant believed that the evidence would show that this was a staged accident. The court held that while there was evidence of fraud in the case, the request for the records of the third party was based upon speculation and conjecture. Hendricks v. Wells Fargo Insurance, 2021 WL 4987962

A motor carrier’s efforts to seek dismissal of a punitive damages claim in a suit seeking damages for a fatal accident failed in the Eastern District of Missouri. The motor carrier argued that Missouri law precluded a claim for punitive damages without leave of court. The court held that the Missouri statute was a procedural requirement inapplicable to a federal pleading. The claim could continue. Gaydos v. Gully Transportation, 2021 WL 4963523. In a related decision the court held that a plaintiff could assert alternative theories of liability against the trucking company, who already conceded vicarious liability, when the trucking company could be liable for punitive damages. The claims for negligent hiring and/or retention, negligent entrustment, negligent training, and negligent supervision were permitted to proceed, 2021 WL 52998679

Pay attention to the court deadlines. A trucking company defendant in the Eastern District of Texas waited too long to seek dismissal of claims for gross negligence, which it claimed were unsupported by the evidence. As the defendant waited until the month before trial the court denied the request, allowing the claim for gross negligence to proceed to trial. Sanders v. Sky Transport, 2021 WL 5086064. In a related decision the court agreed with the defendant that most of the police report should be deemed inadmissible, including those portions based on the statements of others, referencing the parties’ insurance coverage, and mentioning the driver’s citation, which was later dismissed. 2021 WL 5088887

The Court of Appeals in Louisiana upheld a trial verdict of $2,508,853 against a trucker and its insurer. The defendants conceded liability for the loss. However as the court has granted the plaintiff’s motion to strike the defendant’s medical experts, there was little opportunity to impact the testimony on damages proffered on behalf of the plaintiff. It is important to read this case as it also addressed the joint defense offered by the insurer on behalf of itself and the motor carrier and driver when there were coverage defenses without reservation. The court concluded that the coverage defenses were waived. The court left open whether the insurer would be liable for more than its policy limit of $1,000,000 based upon its handling of the claim. Jeffries v. Prime Insurance Co., 2021 WL 5102258

The 5th Circuit Court of Appeals addressed the applicability of different excess policies to a loss, concluding that the district court was correct in its assumption on the priority of coverage. While both policies provided coverage for liability “in excess” of a “retained limit.”, the policies differed in how they defined “retained limit.”, leaving one insurer first in line. While questions of fact remained on the actual allocation, the critical issues were resolved. Great American Insurance Co. v. Employers Mutual Casualty Company, 2021 WL 5356174

When a truck driver moved to Pennsylvania in order to get his CDL license, with no evidence that he ultimately intended to reside there permanently, the court held that North Carolina, where he resided before, was truly his residence for a diversity assessment. The Eastern District of Pennsylvania did not send this back to the state court in Philadelphia, one of the judicial hellholes. Estate of Khalil v. Mursalov, 2021 WL 5356791

Everyone wants to get out of Philadelphia County. The Superior Court in Pennsylvania held that plaintiff failed to establish that the trial court abused its discretion in sustaining the motor carrier’s preliminary objections raising improper venue on the basis that none of them regularly conducted business in Philadelphia County. The court agreed that the transfer should proceed. Dibble v. Page Transportation, 2021 WL 5408725

A police officer injured in a multi-truck crash sought to add in addition potentially non-diverse trucking companies who were part of the accident which injured the plaintiff. While the court denied the motion, it was without prejudice to allow the plaintiff to refile alleging the proper citizenship of each defendant. That fact that the amendment might defeat diversity was not enough to convince the court that it should not allow the amendment in the suit which was previously properly removed. Wilson-Abrams v. Magezi, 2021 WL 4962100

After completion of discovery the District Court in New Mexico agreed that a plaintiff could have its claims for direct and vicarious liability reinstated against the shipper and the broker following a truck accident. Once again the data caused the change, as the court cited, in great detail every driver violation and the various data events impacting the motor carrier. It was enough to allow the claims for negligent hiring. The court also rejected the preemption defense proffered by the broker. Dixon v Stone Truck Line, 2021 WL 5493076

Let’s talk about discovery. The Northern District of West Virginia held that a plaintiff was entitled to get all information from a motor carriers accident register for Defendant’s fleet of trucks from four months before the accident and two years after the accident. Post accident information could be relevant for a claim for punitive damages. Anderson v. FDF Energy Services, Inc. 2021 WL 5443187

When the plaintiff and the defendant trucker collided while merging in a construction zone the Western District of Pennsylvania held that there were questions of fact as to the liability of each party and summary judgment in favor of the plaintiff was inappropriate. The Court held that a reasonable jury could find that the plaintiff breached a duty of care and that his negligence was a cause of the accident. The Court further held that even if the truck driver was negligent —whether per se or otherwise—such negligence would not bar the jury from also finding that the plaintiff was negligent and that negligence was a cause of the accident. Surman v. Payne. 2021 WL 5449231

Worker’s Compensation
The Georgia Department of Transportation was permitted to intervene in an employee’s suit against a trucking company for injuries to an employee when his bucket was hit by the driver. The Middle District of Georgia agreed that the DOT was entitled to present its lien against any award after it made worker’s compensation payments. Bryan v. Swisher, 2021 WL 5405783

The same did not hold true in the Western District of Louisiana. While the employer and its insurer were entitled to assert a claim for reimbursement of worker’s compensation fees against the trucker who injured the plaintiff, the amount was below the diversity threshold and the diversity of the parties was not clear. The proposed complaint in intervention set forth an amount in controversy of less than $10,000, so the amount in controversy element (more than $75,000) was not satisfied. The motion and proposed complaint set forth some information about the citizenship intervenors, but did not provide the precise information needed to ensure complete diversity so the request was denied with the right to renew if they could address these concerts. Davis v. Southwest Sales, Inc., 2021 WL 5504732.

Bits & Pieces – October 2021

The chill is setting in and thoughts are shifting towards the holidays!

Big news!  We are adjusting our format for our November 16th live training session.  It will be a town hall format and you will have the opportunity to submit questions for our experts to answer.  As noted, this is a bit outside our comfort level, so your assistance will be greatly appreciated.  Below you will find a link to submit questions that we will pose to the experts for answering.  As with other web training sessions, there will also be an opportunity to ask questions during the event.   We are very excited and we hope you will help make it a success!  

Please click here to submit questions for the CAB Town Hall.

More big news, Jean and Shuie will be speaking at the CCJ Solutions Summit: The title of the summit is: Shifting the driver paradigm: Winning with equipment, technology, and culture.  Join them in person at the 2021 CCJ Solutions Summit, Nov. 30 – Dec. 2, in Chandler, Arizona. CCJ Summit assembles fleet executives, thought leaders, industry analysts, and leading suppliers to explore ways equipment, technology, and corporate culture can shift the driver paradigm and overcome your No. 1 challenge: Cultivating a qualified workforce.  For more information on the CCJ Solutions Summit, click here.

Enjoy November and we hope everyone has a great Thanksgiving!

CAB Live Training Sessions

Tuesday, November 9 @ 12p EST: Mike Sevret will present VITAL+, Going Deeper with VINs. Go beyond the CAB Report and know the full history with our Vehicle Inspection Tracker & Locator (VITAL) search engine. See historical data on VINs, license plates, or a specific DOT#. Every inspection, violation, & accident is at your fingertips!  Click here to register.

Tuesday, November 16th @ 12p EST: The CAB Team will present Central Analysis Bureau Town Hall 2021, Q&A with the CAB Experts.  Do you have a burning question you’ve been wanting to ask one of our CAB experts?  Now is your chance!  Click the link below to submit your question and our team of experts will answer the question live during this session.   Click here to register.

Bam!  Click it HERE to submit a question for the CAB Town Hall.

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

Additionally, you can explore all of our previously recorded live webinar sessions including the following topics of interest.  Below are our most recent available webinars.  Share with your colleagues or review them yourself!

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CAB’s Tips & Tricks: Dig into the BASICs data!

When reviewing the CSA/BASICs tab in the CAB Report® do you know how to determine if the violation listed was determined to be Out of Service, or not?  An Out-of-Service violation requires the vehicle to be off the road until the violation or violations have been resolved.  Additionally, Out-of-Service violations result in an additional violation weight of 2. As an example, the last violation at the bottom of the list below for 8/11/21, the Stop Lamp Violation has a BASIC weighting of 6, however, due to the vehicle also being placed Out-of-Service due to the violation, the weighting is raised by 2, for a total of 8.  Also note, there is a time weighting factor assessed.  The same violation is multiplied by 3, due to occurring in the last 6 months (7-12 months x 2 & 13-24 months x1).  More recent violations are weighted more heavily than older ones.  So the true weighing being applied to the Vehicle Maintenance BASIC is 24.  As you can see, it does not take much for Out-of-Service violations to add up.  *Out-of-Service violations are also denoted in CAB via a red font.

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THIS MONTH WE REPORT:

From Overdrive: FMCSA tells states to ban drivers with drug, alcohol strikes:  Truck drivers who have a positive drug or alcohol test and find themselves in the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse will begin having their licenses downgraded after a final rule from the agency takes effect. Under the new rule, which will be effective as of Nov. 8, 2021 – with a state compliance date of Nov. 18, 2024 – states will be barred from issuing, renewing, upgrading, or transferring a CDL or commercial learner’s permit for any driver prohibited from driving a commercial vehicle due to one or more drug or alcohol violations. Additionally, states will be required to remove the CLP or CDL privilege from the license of drivers subject to the CMV driving prohibition, resulting in a downgrade of the license until the driver completes return-to-duty (RTD) requirements. FMCSA said the rule will ensure that drivers with drug and alcohol violations don’t operate commercial vehicles until they complete their return-to-duty process.  To review the complete article, click here.

More Than 13,000 Vehicles Transporting Hazardous Materials/Dangerous Goods Were Inspected During CVSA’s Unannounced Five-Day Inspection Initiative: Commercial motor vehicle inspectors in Canada, Mexico, and the U.S. inspected 13,471 vehicles transporting hazardous materials/dangerous goods (HM/DG) as part of a focused HM/DG inspection and enforcement initiative by the Commercial Vehicle Safety Alliance (CVSA). During the 2021 HM/DG Road Blitz, June 21-25, inspectors compiled and submitted valuable HM/DG compliance data to the Alliance. In the U.S. and Canada, 10,905 commercial motor vehicles and 8,363 HM/DG packages were inspected over that five-day period. Inspectors identified 2,714 violations.  For more information, click here.

Driver shortage trucking’s top concern for fifth straight year: For the fifth year in a row, the driver shortage has topped the American Transportation Research Institute’s (ATRI) annual Top Industry Issues report, a survey of more than 2,500 carriers, commercial drivers, and other industry stakeholders. Unlike 2019 and 2020, where margins between the driver shortage and the No. 2 industry issues were much closer and the driver shortage earned just 28.6% and 26.4% of the total share of votes, respectively, the driver shortage totaled 47.4% of the total share of votes in the 2021 survey. “The contributors to this [driver] shortage are endless,” said Rebecca Brewster, ATRI president and COO during an educational session Sunday at the American Trucking Associations’ annual Management Conference and Exhibition in Nashville. “Growing freight demand, the shift to e-commerce that leads to more local jobs that is hurting the over-the-road driver recruiting, an aging workforce and we are not backfilling with younger individuals that we need to account for those driver retirements.” Brewster added the pandemic also has created a backlog in driver supply from training schools and state licensing agencies that were temporarily shut down.  For the complete article from CCJ, click here.

CVSA Releases 2021 Brake Safety Week Results: North American Commercial motor vehicle inspectors inspected 35,764 commercial motor vehicles during this year’s Brake Safety Week, a seven-day inspection and enforcement initiative aimed at inspecting commercial motor vehicles roadside and identifying and removing any commercial motor vehicles with dangerous brake-related issues from our roadways. Twelve percent of the vehicles inspected were placed out of service due to critical brake-related inspection item conditions.  Combined, for a North American total, 35,764 commercial motor vehicles were inspected, Aug. 22-28, for Brake Safety Week. Twelve percent of those vehicles were restricted from travel because inspectors found brake-related critical vehicle inspection item conditions and placed those vehicles out of service, using CVSA’s North American Standard Out-of-Service Criteria.  For more information on this topic, click here.

Administration’s vaccine mandate (OSHA’s Emergency Temporary Standard) up against ‘extremely difficult’ challenge, attorneys say: COVID-19 contact tracing could prove to be the downfall of President Joe Biden’s hotly contested vaccine mandate. Employers with 100 employees or more may soon be required to have their employees vaccinated against the highly contagious coronavirus or face costly fines. A provision for weekly testing in lieu of vaccination is expected to be added to the Occupational Safety and Health Act (OSHA) Emergency Temporary Standard (ETS), which awaits OSHA approval. The American Trucking Associations, one of several industry groups meeting with White House officials to caution against implementing the vaccine mandate for fear of further straining an already anemic labor supply, reported that the mandate will likely push out 37% of drivers at a time when they say 80,000 more are needed to help alleviate unprecedented kinks in America’s supply chain. Legal challenges are mounting against the president’s tough stance on COVID, including in Florida where Governor Rick DeSantis said recently that the state will challenge Biden’s mandate in court.  For more information from CCJ on this topic, click here.

Strong freight, rates environment expected to last through 2022: The current trucking environment is one of the best in history from a demand perspective, and that strong environment for rates is expected to continue.  ATBS President Todd Amen, in an Overdrive’s Partners in Business webinar Thursday (see link below), said all signs are pointing to the current cycle lasting through the end of 2022. “We’re already 18 months into this cycle, and by all accounts … a traditional trucking cycle will be somewhere between 12 to 24 months of good for the truckers and then it’ll be three to four years of bad,” he said. “So it’s like quick up, and a slow, gradual decrease when you think about rate and freight cycles. By all accounts, we’re already most of the way into a really good freight cycle, and it should turn.” However, “Most people are saying this could last all the way through 2022,” he added, “which would be amazing. It would be a 30 month-plus. almost-going-on-three-years positive freight cycle for truckers, which is incredible.”  To read the complete article from Overdrive, click here.

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FMCSA Deputy Administrator Meera Joshi Convenes Meetings in Midwest To Discuss Truck Driving and Supply Chain: Continuing the Biden Administration’s whole-of-government approach to addressing supply chain disruptions, Federal Motor Carrier Safety Administration (FMCSA) Deputy Administrator Meera Joshi met with multiple transportation organizations in the Midwest this week.  The meetings focused on strengthening commercial vehicle safety, bolstering truck driver availability, and improving rail-to-truck supply chain efficiencies. Truck driver retention and recruitment has been a focus of the White House Task Force on Supply Chain Disruptions.  The core reason for America’s truck driver capacity issue is the startlingly low retention of current drivers.  Among large truck companies, driver turnover rates between companies and out of the industry for long haul drivers are over 90% annually.  For the complete press release, click here.

CAB Calculates Total Carriers and Percentage of Carriers in Inspection Selection System (ISS) range:  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 most recent data. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or an unknown number of power units are not included.

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GPS leads driver to high-grade rail crossing, into path of train:  No matter what GPS says, tractor-trailer drivers should not risk trying to drive over a high-pitched railroad crossing and they should pay attention to any signs advising against same. That advice came from law enforcement and a veteran truck driver following a recent collision between a train and car hauler in Oklahoma which was captured on video (see link below) that has since gone viral. Two other trucks that became grounded on that same crossing about 80 miles north of Dallas the week of Oct. 11 were freed before a train approached. All three truck drivers apparently followed a GPS-initiated detour to avoid road construction in the area.  To review the complete article and watch the video, click here.

Auto

So who owes for the towing charges? The District Court in New Jersey held that the motor carrier, the shipper and the truck broker could owe the tow company for all of the charges, allowing claims for quantum meruit to proceed against them. The insurer for the trucker was also kept in the suit under the MCS-90 as its policy did not cover the vehicle. Superior Towing & Transport, LLC v. JB Hunt Transport, 2021 WL 4482824

Plaintiff’s efforts to defeat diversity in a truck accident by filing a claim against a non-diverse party for an accident which occurred years later failed in the Middle District of Florida. The court agreed that there was no reason for that second claim to proceed in the truck accident. Kuhn v. Apgar, 2021 WL 4772844

While Louisiana law would not allow a co-employee/passenger to sue an employee/truck driver because of worker’s compensation limitations, when the non diverse driver was a named party to the suit because the employment status was at issue, diversity jurisdiction over the case did not exist. The Eastern District of Louisiana sent the case back to state court to be litigated. Wilford v. Nationwide Mutual Insurance Co., 2021 WL 4810914

A motor carrier was successful in obtaining summary judgment in a suit seeking damages for a truck collision, The motor carrier showed that he suddenly encountered an unlit and practically immobile vehicle in the lane he was traveling on the interstate during dark conditions with heavy rain. Plaintiff could not show that there was any negligence on the part of the motor carrier. Cigainero v. Moore, 2021 WL 4955450

While the insurer clearly had a claim ripe for declaratory relief when it sought to determine if there was coverage for a motor carrier and its driver the Eastern District of Missouri declined to exercise its jurisdiction over the questions raised. The court determined that the parallel state court action should be resolved first as that would lay to rest many of the questions which would need resolution prior to determining whether the auto policy covered the defendant’s liability, if any, for the loss. Greenwich Insurance Co. v. Matt Murray Trucking, 2021 WL 4902326

When the plaintiff failed to allege any facts to support a claim of negligent entrustment against a trailer leasing company the complaint was subject to dismissal. The Southern District of Texas agreed with the leasing company and granted the unopposed motion to dismiss. Davenport v. Hensley, 2021 WL 4925383

Broker liability for a truck accident was again an issue, this time in the Southern District of West Virginia. After concluding that plaintiff had met the burden of showing personal jurisdiction over the broker, the court went on to deny the broker’s request to dismiss the claims for vicarious liability, and negligent selection of a carrier. The court concluded that the claims against the broker were not preempted by FAAA. Taylor v. Sethmar Transportation, 2021 WL 4751419

A truck driver parked his vehicle on the road in an unacceptable location in order to insure that he was first in line for unloading, and was struck by a plaintiff who did not see the vehicle in the sunlight. The truck driver was potentially liable for punitive damages. The Middle District in Georgia concluded that claims for punitive damages and bad faith would be presented to the jury to decide. It did dismiss plaintiff’s claims for lost profits because he was unable to operate a restaurant which had been unprofitable for a few years. Castleberry v. Thomas, 2021 WL 4765499

Where the plaintiff has not established a prima facie case for punitive damages the District Court in South Carolina held that the plaintiff was not entitled to get early discovery on the finances of the trucking company. The court also rejected the plaintiff’s request that defense counsel articulate the due diligence steps taken to determine whether there was any additional insurance coverage. Akehurst v. Buckwalter Trucking, LLC., 2021 WL 4891749

It is interesting that there are so many cases where truckers are sued for events in which they are claimed to have caused accidents that they were unaware of. The Northern District of Mississippi held that there were questions of fact as to whether the defendant forced the plaintiff to run off the road and have an accident and therefore summary judgement was inappropriate. Garth v. RAC Acceptance East, LLC., 2021 WL 4529690

The Eastern District in North Carolina agreed that a claim for punitive damages against a motor carrier should be dismissed. Under North Carolina law a demand for punitive damages must be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages must be alleged with particularity. Plaintiff failed to allege facts to support such a claim, which would have required allegations that the driver was intoxicated, or driving at excessive speeds; or engaged in a racing competition. MCNeil v. Glasco, 2021 WL 4944342

Claims for negligent hiring, training and leasing are permitted under Iowa law, even when vicarious liability is admitted. However, there must still be facts to prove the claims. The Northern District in Iowa rejected those claims against the trucking company and its affiliated leasing company, granting summary judgment to those defendants. There was no material fact which would lead to the conclusion that liability would exist. DeBower v. Spencer, 2021 WL 4887976

The Southern District in Florida agreed with the defendant that an insurer was not entitled to judgment on the question of its duty to defend under the policy or the MCS-90 Endorsement while the underlying action for damages for the truck accident was still being litigated. The case was stayed pending resolution of the suit. Trisura Specialty Insurance Co. v. Blue Horse Trucking Corporation, 2021 WL 4334764

The Eastern District in Kentucky was not inclined to grant summary judgment to a motor carrier on the theory that the accident was not foreseeable. The court held that the trucking company could have reasonably foreseen that the driver would lose consciousness due to his acute illness at the time of the accident and chronic fatigue, noting that the driver admitted he fell asleep in the moments following the accident. The court did agree, however, that the claim of negligence per se could not be established as the state’s statute did not extend to claims that federal safety regulations were violated. The plaintiff was also not permitted to proceed on claims of negligent hiring, retention, supervision or training when there was not enough evidence to support the claims. Short v. Marvin Keller Trucking, Inc., 2021 WL 4524170

Because the motor carrier may be liable for punitive damages, the carrier’s admission of vicarious liability did not necessarily require dismissal of direct negligence claims against the motor carrier. The Eastern District of Missouri allowed claims for negligent hiring/retention, negligent training and negligent supervision/retention to remain in the case. Sanford v. K&B Transportation, Inc. 2021 WL 4552206

The Northern District in Alabama agreed that a claim of wantonness was subject to dismissal. Even construing the facts in favor of the plaintiff, the court held that consciously deciding to switch from the right lane to the left lane to bypass slower traffic in the right lane was not enough to show that the driver did so “with a reckless or conscious disregard of the rights or safety of others.” He made an error in judgment; it was not enough to support additional damages. Coram v. Southwind Transportation. 2021 WL 4660455

Somewhat strange set of facts. The defendant admitted that the driver was negligent for not securing the cowling, i.e., the removable covering of the vehicle’s engine, which struck the plaintiff’s vehicle causing the accident, yet still sought to be dismissed on the theory that there was no collision with the vehicles, as alleged by plaintiff. The Southern District in Mississippi rejected that argument. Because plaintiff admitted that it was negligent for not securing the cowling the court granted partial summary judgment to plaintiff on liability. Taylor v. Wal-Mart Transportation, 2021 WL 4569344. In a related decision the defendant’s effort to defeat a plaintiff’s claim for money damages stemming from medical treatment on the basis that it was untimely failed. 2021 WL 4504691

The Court of Appeals in Texas reversed a bench trial ruling that the motor carrier and its driver was completely at fault for a multi-vehicle accident started with a collision by the truck. The Court of Appeals determined that the trial court improperly denied an earlier motion to change venue. Because the venue was not proper in the county of suit and would have been proper in Harris County, the county to which the defendants sought transfer, the case was reversed and remanded to be transferred to Harris County to be tried. UPS v. Norris, 2021 WL 4465998

The motor carrier and driver were successful in defeating plaintiff’s claims for personal injury damages as untimely in the Northern District of New York. While the accident was in New Jersey, the court held that the plaintiff was time barred under both states as she could not establish that she was a New York resident at the time of the loss. It is an interesting read as it further addressed whether there was a right to assert personal jurisdiction over the driver in New York based upon his business relationship with the motor carrier. Questions to be considered when there is a leasing relationship between the parties. Afanassieva v. Page, 2021 WL 4458686

Directed verdict in favor of the motor carrier upheld by the Court of Appeals in South Carolina! The court agreed that the plaintiff did not meet the burden of proof that the motor carrier was at fault or caused injury to the plaintiff. Bundy v. Jett, 2021 WL 4593413

An NTL policy exclusion was applicable when a covered auto was used to further the commercial interest of a lessee. The District Court in New Mexico granted the insurer’s request for summary judgment. The court determined that reading together the business auto policy and the business use exclusion contained within the endorsement, the only reasonable interpretation was that the endorsement excluded coverage from the insured business auto policy when a covered auto was being operated on behalf of a commercial lessee. Lopez v. Western Surplus Lines Agency, 2021 WL 4478023

Two insurers, both potentially provide coverage. When one insurer pays the claim can it seek monies back from the other? The Central District in California considered the motion to dismiss filed by the defendant insurer. The court agreed that the presence of an MCS-90 on the defendant’s policy could not give rise to an equitable subrogation claim by another insurer. Equitable subrogation remained a viable option however, as the plaintiff sufficiently showed that the defendant was aware of the claim and therefore could have participated in its resolution. Williamsburg National Insurance Co. v. New York Marine and General Insurance Co., 2021 WL 4458952

Cargo
While a truck broker was able to get all state law claims dismissed against it in a suit seeking recovery for a cargo loss, it was not successful in obtaining dismissal of the claim under the Carmack Amendment. There was still a reasonable basis to argue that the broker held itself out as a carrier. Federal Ins. Co. v. SF Express Corp., 2021 WL 4555040
A default judgment was entered against a logistics company in the Western District of Texas. The court held that the plaintiff was entitled to actual damages, costs, prejudgment and post judgment damages. Federated Mutual Ins. Co. v. XPO Logistics Freight, Inc. 2021 WL 4621965

An interstate shipment which is part of a continuous movement by air is not subject to the Carmack Amendment. The Southern District of New York dismissed the subrogation suit seeking cargo damages. The Court also held that inland transport, from New York to New Jersey was also within the commercial zone, further supporting a rejection of jurisdiction under the exemption for commercial zone transportation. Great American Insurance Co. v. Fastway Delivery Service, Inc., 2021 WL 4555181

Worker’s Compensation
The Court of Appeals in Georgia agreed that a worker’s compensation insurer was not obligated to protect the truck driver’s rights when it filed its subrogation claim against the insurer for the second truck involved in the accident. The statute governing rights of employees to proceed against persons other than employer who are liable for employee’s injury or death does not impose a fiduciary duty on an insurer to protect the employee’s legal interests in its subrogation action brought under that statute. Bush v. Liberty Mutual Insurance Co. 2021 WL 4810176

© 2021 Central Analysis Bureau