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Bits & Pieces

March 2021

Big news from CAB!

As many of you are aware, Central Analysis Bureau is now part of the Randall-Reilly family. The new relationship will provide benefits to CAB’s customers well into the future. The complete CAB team has made the transition including Jean, Shuie and our exceptional business and development teams. You can look forward to the same positive customer service interaction you’ve always experienced with CAB. We are all very excited about working with Randall-Reilly as their focus is on data relating to trucking, construction, agriculture, and other industrial markets. The Randall-Reilly and CAB combination reinforces our commitment to client responsiveness and continued product enhancements.

We hope you’re as excited about this new chapter in CAB’s history as we are! Have a great month!

CAB Live Training Sessions

Just a quick reminder that last month’s sessions, CAB Customization and Chameleon Carriers and Interrelated Entities 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, April 13th @ 12p EST: Sean Gardner will present an overview of CAB’s MC Advantage resource including the MC Dashboard, CAB report, BASICs Calculator, & Customized Alerts. This is a tool provided directly to motor carriers via our insurance carrier partners. For the first time, motor carriers can directly access their motor carrier data through CAB. Don’t miss out on this opportunity to learn about this powerful software. Click here to register.

Tuesday, April 20th @ 12p EST: Chad Krueger will present, CAB for Agents & Brokers. Learn about enhancements to the CAB ecosystem that can help drive growth and save time. Identify ways to use CAB data to change the conversation with markets and advocate for fleet customers and prospects. Use CAB List™ to monitor customers and ‘drive the wedge’ with prospects. Learn tips on how to leverage the BASICs Calculator™ and CAB’s Lead Generation tool, SALEs™. 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: Merging of DOT Numbers

This month we take this opportunity to discuss a function that was developed previously but has been asked about a number of times recently. That functionality question is: Does CAB have a tool that will allow the merging of multiple DOT numbers to get a clearer picture of the overall history of the entities? The answer is a resounding yes and it can be found in the upper left hand corner of the BASICs Calculator and is pictured in the screenshot below.

When you click that button, it opens the box below and you are free to enter multiple DOT numbers to merge the entities VINs, Inspections, Violations, and the like. You will also be able to see a combined geographic and equipment breakdown. It should be noted that CAB-BASIC scores are not generated for Crash and Unsafe Driving. The reason for this is due to the fact that unit count and vehicle miles traveled are part of the calculation and we don’t know the overlap of those units and vehicle miles traveled.

This is an important function when it comes to getting the true picture of an overall organization that might be operating multiple DOT numbers. Our users have told us on numerous occasions that their customers appreciate the combined view of their operations and we’re happy to provide this tool in the BASICs Calculator.

That being said, there are other situations, like the following case, which Jean reviews in the cases below, from the United States Court of Appeals, Tenth Circuit. KP TRUCKING LLC, Petitioner, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Federal Motor Carrier Safety Administration (FMCSA), Respondents. No. 20-9508.

The 10th Cir ruled that it is appropriate for the DOT to combine violations for two companies when it looked like they are a chameleon operation. Basically, under the regulations, safety violations by two companies can be combined when one of the companies changes its name or structure to skirt the consequences of prior violations. 49 C.F.R. § 386.73(b). Invoking this authority, federal regulators suspended a trucking company, Eagle Iron & Metal. When Eagle was suspended, another entity (KP Trucking, LLC) expanded its operations. Regulators viewed KP’s expansion as an effort to continue Eagle’s operations in order to bypass penalties and start anew on a fresh slate.

The above is an important situation to take note of and reminds us of the importance of CAB’s Chameleon Carrier alert. You may find it interesting to look up the motor carriers involved in the case via Carrier Central. In all cases, strive to understand the potential of the Chameleon Carrier exposure as much as possible prior to working with an organization.

As with all of our tools & enhancements, we strive to present the information in a manner that will help provide clarity and ease of use. The CAB Team is continually striving to improve our tools and resources to create value and efficiency 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:

Cargo theft volumes, average values increased in 2020 Cargo theft volumes and values in the U.S. increased in 2020 over the previous year and also hit a five-year high, according to cargo theft recording firm Sensitech’s annual report. The firm notes that its data is an indirect representation of the overall cargo theft footprint and not a direct reflection. It uses data from transportation security councils, insurance companies and law enforcement organizations, which may not represent 100% of all thefts but does provide a cross-section of thefts to identify trends, the firm notes. Sensitech recorded 870 cargo thefts throughout the U.S. in 2020 – 222 in the first quarter, 230 in the second quarter, 185 in the third quarter and 233 in the fourth quarter. The average value of 2020 thefts was $166,854. For additional information on this topic, click here.

Senators Reintroduce Under 21 Interstate Driver Bill: The Developing Responsible Individuals for a Vibrant Economy Act, known as the DRIVE-Safe Act, would allow CDL drivers under age 21 to haul interstate loads in some circumstances. The regulation would apply to drivers who have completed, or are participating in, an apprenticeship program, according to the bill text. Such a program must include a 120-hour probationary period in which the driver proves competency in more basic driving maneuvers, followed by a 280-hour probationary period in which the driver proves competency in more advanced maneuvers. The DRIVE-Safe Act was introduced in the Senate in February 2019 and referred to committee, but no further action was taken. It is interesting to note that the trucking industry is split when it comes to lowering the age for interstate operations. The American Trucking Associations supports these efforts, while the Owner-Operator Independent Drivers Association is in opposition. For more information on the bill, click here.

Truck inspections expected to rebound in 2021 following significant COVID-caused sag: As COVID-related restrictions ease around the country, law enforcement officials anticipate a truck inspection rebound in 2021 from last year’s sharp decline. According to the Federal Motor Carrier Safety Administration’s (FMCSA) Motor Carrier Management Information System, roadside truck inspections dropped 23% from 3.5 million in 2019 to 2.7 million in 2020. Since then, COVID vaccinations have rolled out in growing numbers and states have continued to relax coronavirus rules which, according to FMCSA, may eventually lead to a return to higher pre-COVID inspection numbers. “We do expect the number of inspections in 2021 to outpace 2020, although it is too early to tell due to the uncertainty of the COVID-19 national health emergency,” FMCSA’s public affairs representative Duane DeBruyne said in a statement to CCJ. Please click here to review the complete article.

From ELD and HOS violation trends to self-driving trucks’ job displacement, major takeaways from FMCSA’s Analysis, Research & Technology forum:

Remote/offsite safety audits of motor carriers are here to stay. CCJ documented the surge in offsite/remote safety audits and compliance reviews over the past year. That trend is here to stay, said Joe DeLorenzo, FMCSA head of enforcement. The agency so far has “felt good about how [offsite audits] worked and how the agency was able to transition” quickly to those remote audits, he said. That was somewhat out of necessity when the pandemic hit, but it was also a stroke of good luck on the agency’s timing, he said.

HOS violations haven’t moved much since regs overhaul. Comparing the four months prior to the Sept. 29 change-over date in federal hours of service regulations to the four months after, total hours of service violations did drop some, but not in the manner FMCSA had hoped, said DeLorenzo. While total hours-of-service violations fell from 11,227 in the June 2020 to September 2020 time frame, before the new HOS regulations took effect, to 9,989 total violations in the four months from October 2020 through January 2021, the decline was due in large part to a dip in 30-minute break violations. Those dropped from 3,597 to 1,712.

False log violations have trended up under ELDs — and ELD violations have trended up under COVID. False log violations have trended up since hard enforcement of the ELD mandate began in April 2018, said DeLorenzo. “It’s a lot harder to cheat your ELD,” he said. “We’ve seen a slow and steady increase in identifying false log records at roadside.” He called it a “good story on ELDs,” in catching those violations. Also, due to the COVID pandemic and a corresponding greater push by FMCSA and state enforcement partners to conduct offsite audits of motor carriers, the number of safety investigations revealing ELD violations has climbed steadily.

To review the complete article, click here.

Contract freight market contracted in February: The American Trucking Associations’ advanced seasonally adjusted For-Hire Truck Tonnage Index fell by 4.5% in February after rising almost 2% in January, suggesting a decline in tonnage under contract moved by for-hire carriers amid the weather woes and other disruptions last month. Spot freight and rates on average were up in February in spite of such disruptions, while the “severe weather that impacted much of the country during the month” might well be the single cause for the contract freight’s drop, as represented in the index, said ATA Chief Economist Bob Costello. “Many other economic indicators were also soft in February due to the bad storms, but I continue to expect a nice climb up for the economy and truck freight as economic stimulus checks are spent and more people are vaccinated.” Complete article available, here.

CASES

TRUCKING REGULATIONS

I am putting this case in a separate section so that it is not skipped over. The 10th Circuit considered whether safety violations of two companies can be combined when one of the companies changes its name or structure to avoid the negative violations. The court agreed that they could consolidate the violations when there was factual support that the second company was continuing operations for an improper purpose. Check out the Tips and Tricks section of this report for ways for you to consolidate violations of multiple DOT numbers to get a true picture of a risk. KP Trucking, LLC v U.S. DOT, 2021 WL 868493

AUTO
While an insurer had no coverage under a commercial auto policy for a tractor which was not scheduled on the policy, it could not avoid the impact of the MCS-90. The Southern District of New York agreed with other jurisdictions that a motor carrier could not meet its financial obligations through policies covering other motor carriers involved in the transport. The court held that “It is clear .. that the federally mandated insurance obligations of one carrier cannot be satisfied simply by virtue of the fact that an injured party recovers an award greater than the federal minimum from another party “ Carolina Casualty Insurance Co. v Capital Trucking. 2021 WL 848064

The fact that a declaratory judgement action could hinge on whether the MCS-90 endorsement on the policy of the motor carrier covered liability for an accident was not enough for the Southern District in Florida to conclude that there was a sufficient federal question to warrant exercising the discretionary right to hear the case. It dismissed the insurer’s complaint. National Speciality Insurance Co. v. South Florida Transport, 2021 WL 980948

A motor carrier’s efforts to obtain summary judgment on independent claims for negligence against a motor carrier who had conceded liability for the actions of the driver failed in the Western District of Louisiana. The court held that it would continue to recognize such a claim until a decision was reached by the 5th Circuit and further concluded that there was a question of fact as to whether the driver was improperly trained by the motor carrier. Moreaux v, Clear Blue Insurance Co. 2021 WL 852295. In a related case the court agreed that one excess insurer was not obligated to indemnify the motor carrier for any claim for punitive damages. A second carrier was not as successful as the court held that there was a triable question of fact as to the driver’s intoxication and that the insurer had no exclusion for punitive damages. 2021 WL 855282

Too quick said the 4th Circuit Louisiana Court of Appeals. Summary judgment was reversed in an action against stevedoring service companies alleging that an unknown operator of a yard mule vehicle owned by those companies rear-ended the plaintiff’s vehicle. Too little discovery and the defendant was not afforded an opportunity to figure the claim out. Francois v. Ports America Louisiana, LLC,  2021 WL 911882

The Southern District of New York agreed that neither New York nor New Jersey law permits a plaintiff to pursue a claim of negligent hiring or entrustment where the plaintiff has established a vicarious liability claim which would render the employer liable for the damages caused by the actions of its employee. The direct claims against one trucking company were dismissed. However the motor carrier who initially jackknifed, setting in motion the events leading to plaintiff’s injuries, was not able to get summary judgment as there were too many questions left to be resolved. Martinez v. Harbor Express, LLC 2021 WL 1051623

The Eastern District in Pennsylvania held that independent claims for negligence against a trucking company would not be permitted when the motor carrier accepted vicarious liability for the actions of the driver. Such claims could be pleaded if there was a claim for punitive damages, which the plaintiff could not support. Miller v. M.H. Malueg Trucking Co., Inc. 2021 WL 858456

Adult children of a decedent were not permitted to seek a wrongful death claim against a trucking company following the death of their father. The Northern District in Indiana concluded Indiana law did not permit such a claim when the adult children were not true dependents of the decedent, granting judgment to the motor carrier. Sturgis v. R&L Carriers, Inc., 2021 WL 795665

What does it mean to occupy the vehicle? The Eastern District of Texas concluded the plaintiff’s were occupying a vehicle when they were getting on and off the vehicle to collect debris prior to the accident. The court concluded that the plaintiffs were entitled to underinsured motorist coverage from their commercial auto policy when they moved away from the vehicle to avoid being struck by a second tractor trailer. Maldonado v. Travelers Casualty Insurance Co. of America, 2021 WL 977895

An interesting issue was certified to the Arkansas Supreme Court by the Eastern District in Arkansas arising out of a fatal two vehicle truck accident. One truck driver was killed as a result of the subsequent fire in his vehicle. Under Arkansas law does a motorist who is involved in, but not at fault for a vehicular accident, have a duty to render “reasonable assistance” to the injured driver of the other vehicle and if so, what is reasonable assistance when the vehicle is on fire? Answers remain to be learned. Lovellette v. Lagos, 2021 WK 799090

While the Graves amendment does relieve lessors of liability, the application of the amendment to a particular accident is often a question of fact. The Eastern District of Arkansas concluded that it was premature to dismiss the claim against the leasing company when the plaintiff was alleging alternative facts which would support liability. Travis v. Leyva, 2021 WL 969899

The Court of Appeals in Houston disagreed with the trial court’s decision to enter a JNOV and apportion all liability for an accident to the pilot car which was supposed to have made sure the truck could travel under wires. The court held that the driver of the truck did have a duty to the public and did in fact bear liability for the loss. The jury verdict apportioning liability was reinstated. Gator Gone Safety Pilots v. Holt, 2021 WL 865239

Speaking of pilot cars, the District Court in Kansas considered the application of a general liability policy to a claim against a pilot company for failing to insure that the escorted truck traveled along the correct roadways. The truck struck a bridge causing serious damage. The court rejected the motion to dismiss filed by the pilot company in the declaratory judgement action, concluding that the language in the Policy’s auto exclusion endorsement, as supplemented by the definition of “auto,” was unambiguous and the suit properly pled that plaintiff had no duty to defend or indemnify. Penn-Star Insurance Company v. J&J Pilot, 2021 WL 1089418

Piercing the corporate veil to get upstream companies is difficult as the plaintiff found out in the Western District of New York. Plaintiff’s efforts to seek recovery from the parent company of a Canadian subsidiary for injuries suffered in a truck accident failed when plaintiff could not meet the necessary requirements to show that the parent company exercised the requisite control over the subsidiary. The plaintiff was, however, given permission to amend the complaint to try to allege an agency relationship. Looking for additional party defendants is often a key and understanding the potential exposure for that auto risk is important. Giarla v. The Coca Cola Company, 2021 WL 1110397

Ignore that suit for recovery of remediation damages at your peril. The Court of Appeals in Texas upheld the entry of default against a trucking company for the $127,237 plus interest bill for remediation of a spill after a truck accident. These can be big bills. Roberts v. Jay Fuller Enterprises, 2021 WL 1047052

Plaintiff files a timely suit in Texas which is transferred to Louisiana for lack of jurisdiction. In Louisiana the question is whether the suit is timely because it was filed initially in an improper court. By the time it got to Louisiana the statute of limitations had expired. The 5th Circuit overturned the lower court decision dismissing the case. The Court held that the suit against the trucker should relate back to the Texas filing date and was therefore timely. Franco v. Mabe Trucking Co., 2021 WL 1035958

The Middle District of Louisiana agreed that claims for negligence in the hiring, training, supervision, and retention of a driver would not stand when the motor carrier accepted vicarious liability. Motes v. Knight Speciality Insurance Co., 2021 WL 833946. The Western District of Oklahoma held the same in Sykes v. Bergerhouse, 2021 WL 966036

While the individual manager of a trucking company was granted summary judgment when plaintiff failed to produce any evidence that the manager negligently trained the driver, the remaining defendants were not as successful The Southern District of California concluded that there were too many questions of fact as to their liability for a truck/bike accident even though plaintiff could not establish exactly which of the defendant trucking companies was at fault for the accident. Gibson v Beach, 2021 WL 931178

Forum shopping is always an issue. The Superior Court in Pennsylvania vacated a trial court’s decision to dismiss an action brought in Philadelphia County (a judicial hellhole) seeking damages for an accident which occurred as a FedEx facility in Maryland when a truck driver was injured. At least the court remanded the case to determine whether moving it out of Philadelphia to another Pennsylvania venue may be more appropriate. Failor v. FEDEX Ground Package System, Inc., 2021 WL 1016776

Too soon says the District Court in Maryland. While the truck driver pled guilty to criminally negligent manslaughter following a truck accident, that fact alone would not permit judgment for the plaintiff on liability. In addition, whether the broker was actually the carrier for the road (“the duck rule” for those who have listened to me for years) was still a question of fact and the court would not rule that the dendantant carrier/broker was liable for the actions of the driver as a matter of law. Ortiz v. Ben Strong Trucking, 2021 WL 927423

A motor carrier was unsuccessful in striking a claim for punitive damages or obtaining a more definite statement on negligence. The Southern District in West Virginia held that allegations that the driver was operating the vehicle improperly while driving a tractor-trailer loaded with steel down a residential street, allegedly failing to maintain a lookout, driving too fast, and losing control of his vehicle supported a plausible claim that the driver consciously disregarded that his conduct would “probably result in injury to another.” Barker v. Meador, 2021 WL 849231

One for the trucker! The Middle District in Tennessee granted summary judgment to a motor carrier following a fatal accident where the plaintiff hit the rear of the motor carrier’s vehicle. The court held that the claim of negligence was unsupported when the plaintiff was intoxicated and there was no evidence to support claims for negligent hiring, supervision, and training. the plaintiff could not even establish the elements of a negligence claim, to say nothing of the additional element that the employer knew of the employee’s unfitness for the job. Humphrey v. Yobonta, 2021 WL 780731

The Court in the Eastern District of Kentucky agreed with the plaintiff that the trucking company should have ascertained that the damages were greater than $75,000 when reading the complaint for a fatal truck accident. The carrier failed to timely remove the action and so back to state court it went. Hall v M&T Trucking Expediting, LLC, 2021 WL 816908

In the Northern District of Alabama the defendant could not meet its burden that the plaintiff’s damages could exceed $75,000. Back to state court it went. Jones v. DeLeon, 2021 WL 1115279. However the same was not true in the Northern Division in Alabama where the defendant served admissions that the damages were more than $75,000 and the plaintiff failed to respond. Goosby v. Briggs, 2021 WL1032295

Back to state court it goes. The Western District in Texas held that a plaintiffs’ state common law claims against a truck broker for hiring a trucking company involved in the accident were not preempted under the FAAAA because the safety regulation exception applied. There was no federal question and therefore no jurisdiction so the court sent it back. Popal v. Reliable Cargo Delivery, 2021 WL 1100097

Over in the Eastern District in Missouri the motor carrier could not meet its burden that the plaintiff’s damages could exceed $75,000 when cargo tipped during transport. Apparently intra-state transport as the grounds for removal was diversity and not Carmack. Back to state court it went. Cane Creek Quarry v. Equipment Transport, 2021 WL 765287

Dashboard cameras can really help figure out who is responsible for a loss. The Western District in Louisiana granted summary judgment to a motor carrier sued by another commercial driver who slammed into the back of the defendant’s truck. The dashboard cameras showed that the plaintiff was not attentive and that the first driver did not negligently create a hazard. Reed v. Security First Insurance Co, 2021 WL 1032410

A motor carrier was partially successful in its request for summary judgment on claims arising from a truck accident. The Southern District of Alabama held a claim for negligent or wanton entrustment was unsupported when the driver was an owner operator and therefore could not entrust the vehicle to himself. In addition there was insufficient evidence to support a claim of wanton operation of the vehicle. However the plaintiff was permitted to proceed with a claim of wanton failure to place conspicuous markings on the trailer, which might have reduced the risk of loss. Waters v. Hall, 2021 WL 770415

Going to the jury! The Northern District in Alabama concluded that neither plaintiff or the motor carrier was entitled to summary judgment on claims of negligent and wanton hiring, training supervision, retention, dispatch and entrustment following a serious truck accident in which the truck driver lost control of the vehicle. The driver history is an interesting read and apparently was enough to create questions of fact on the cause of the loss. Hobbs v. U.S. Express, Inc., 2021 WL 913398

CARGO
Broker or carrier? Carmack or negligence? The District Court in Connecticut concluded that a complaint which alleged alternative theories of liability would not be subject to dismissal. The court concluded that plaintiff alleged facts to support liability against the defendant as a carrier under Carmack. In addition, the court concluded that even if the defendant was a broker the plaintiff could allege a claim for negligence, which would not be expressly preempted under FAAAA or subject to implied preemption under the Carmack Amendment. Covenant Imaging, LLC v. Viking Rigging & Logistics, 2021 WL 973385

Just a reminder that attorney’s fees are recoverable for household goods claims asserted under the Carmack Amendment. The Southern District of California afforded plaintiff more than $40,000 in fees. Inigo v. Express Movers, Inc., 2021 WL 948795

Thanks for joining us,

Jean & Chad

February 2021

I vote for warmer weather!

Many of us had the chance to experience one of the coldest stretches in history during the month of February. Much of the central U.S. was plunged into freezing temperatures. The pandemic, below normal freezing temperatures, loss of power, and clean water, has created opportunities for us to help our fellow citizens. Additionally, it provides additional opportunities for the insurance and transportation industry to shine. We hope everyone is safe and we look forward to a quick recovery.

Have a great month!

CAB Live Training Sessions

Just a quick reminder that last month’s sessions, Compliance, Safety & Accountability. Understanding the CSA Scores. and Intro to CAB: Flow & Navigation 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, This month we will present two new live training sessions:

Tuesday, March 9th @ 12p EST: Mike Sevret will present the topic: CAB Customization. We have a number of new ways to customize your CAB experience to quickly get to the information you’re looking for. I encourage you to attend this focused webinar to ensure you’re getting the most out of your CAB customization options. Click here to register.

Tuesday, March 16th @ 12p EST: Sean Gardner will present on Chameleon Carrier sand Interrelated Entities. This is always a popular topic and will last 60 minutes. This session will address the concept of a chameleon carrier, interrelated entities and the features CAB provides to identify and understand the relationships that may exist between motor carriers. 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: New Notification for updated Scores and Crash/Inspection Data

Do you want to be notified when new crash and inspection data is available? Additionally, would you like to be informed when updated CAB BASIC Scores and ISS-CAB numbers, including corresponding recommendations (Inspect-Red, Optional-Yellow or Green-Pass) are posted in CAB? We are pleased to let you know that you know that you are now able to visit the My Account dropdown and choose Profile (see below).

Once in the Profile are you are able to make adjustments to numerous settings like the Web Report Format, Radius Buckets, Hot Zones™ States or Counties, SALEs™, and now Notification. Proceed to the bottom of the page and there are now three options, CAB Training Notifications, New CRASH/Inspection Data, and New BASICs / ISS Data. Choose Yes and you will be the first to know when the CAB BASIC scores and ISS-CAB values are updated.

As with all of our tools & enhancements, we strive to present the information in a manner that will help provide clarity and ease of use. The CAB Team is continually striving to improve our tools and resources to create value and efficiency 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:

2020 spurred record number of fleet failures — but rising new entrant carriers: The number of failures by trucking companies in 2020 jumped compared to years prior as the economic effects of the COVID-19 pandemic and associated shutdown orders converged on fleets’ operations and per-mile spot market rates plunged. Some 3,140 carriers ceased operation in 2020, compared to 1,100 in 2019 and virtually none in 2018. Estimated carrier failures last year accounted for about 50,800 trucks being taken off the road, compared to 34,000 the year prior, though Celadon’s December 2019 closure alone accounted for about 3,000 units. For additional information, click here.

Owner-operators and small fleets remain in crosshairs of DOT’s offsite audits: In a trend that exploded amid the COVID-19 pandemic over the past year, the U.S. Department of Transportation and its state enforcement partners are continuing to leverage new authority to perform offsite, remote safety audits and compliance reviews of trucking companies in lieu of onsite, in-person audits, as was the norm before the pandemic. More than 80% of all audits conducted by DOT and state partners last year were of motor carriers with 20 or fewer trucks, according to DOT data. And more than half, 53.6%, were of carriers with six trucks or fewer. For more information, click here.

The American Transportation Research Institute releases its annual list highlighting the most congested bottlenecks for trucks in America: “While everyone else sheltered in place in 2020, trucks kept rolling, delivering essential goods to communities large and small,” said CRST International President and CEO Hugh Ekberg. “Unfortunately, congestion continues to impact our operations and affect our drivers’ ability to deliver for America.” The 2021 Top Truck Bottleneck List measures the level of truck-involved congestion at over 300 locations on the national highway system. For the third year in a row, the intersection of I-95 and SR 4 in Fort Lee, New Jersey is once again the Number One freight bottleneck in the country. For more information on this study, click here.

Truck orders ring in the new year at over 40K units: North American Class 8 net orders for January reached 42,800 units in January, according to preliminary data released Tuesday by FTR – the fourth consecutive month heavy truck orders have exceeded 40,000 units. January orders dropped 18% from December but rocketed 144% year-over-year. Orders for the last 12 months total 308,000 trucks. “When the vaccine enables employment to increase and the other bottlenecks are removed, this will end up being a robust year for Class 8 sales.” Don Ake, vice president of commercial vehicles for FTR. Freight growth has pushed fleets to add capacity as fast as possible and OEMs and suppliers are wrestling to keep pace with surging demand. For more on this topic, click here.

Current DOT Reportable Crash Data: This table shows, for each power unit range, the total number of different types of federally reportable crashes, and the associated rate per million miles traveled. Crashes include those that occurred during the 12 month period prior to January 31, 2021. Power unit and mileage data come from the most recent data we have for each carrier. Only carriers that were active during the past 12 months are included.

Companies Registering for new DOT numbers continue to be strong amid pandemic: After a pandemic related April 2020 dip to just over 9300 new DOT authorities were issued during that month, the record-setting pace, compared over the last five years, is continuing into the new year. April to October saw a recovery to the highest two months in September and October with 17,420 and 17,313, respectively before a significant drop in November and December. However, January 2021 has set another record with 18,463 new authorities issued.

The Federal Motor Carrier Safety Administration (FMCSA) has extended its pandemic-related emergency exemption through May. 31: The FMCSA extension was previously set to expire on Feb. 28, but continues to cover the extended emergency relief for the following categories only: Livestock and livestock feed, Medical supplies and equipment related to testing, diagnosis, and treatment of COVID-19, Vaccines, constituent products, and medical supplies and equipment including ancillary supplies/kits for the administration of vaccines, related to the prevention of COVID-19, Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants, Food, paper products and other groceries for emergency restocking of distribution centers or stores. According to the FMCSA, “Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration.” For more on the waiver, click here.

CASES

Auto

The 11th Circuit Court of Appeals upheld a grant of summary judgment to both the auto liability insurer and the agent of a motor carrier. The plaintiff had asserted that those parties were directly liable for a truck accident caused by a truck driver the plaintiff contended was somehow approved by those parties. The court agreed that the evidence established that the motor carrier’s safety program was lacking from the very beginning, that it was always “poor and noncompliant” and “continued to be substandard before, during, and after” its insurance relationship with the defendants. The court held that neither the insurer or the agent increased the risk of harm to the plaintiff and that the motor carrier did not change its position in reliance on the insurer or the agent. This is a good read for consideration of the underwriting process and the communications to an insured which can raise concerns. Maier v. GreenWyes, USA., 2021 WL 406912.

Well this is different. The Eastern District in Tennessee held that the plaintiff was required to seek a default judgment against a motor carrier when its insurer was in receivership and was no longer providing a defense. The court did not agree that the policy provision which obligated the insurer to pay after entry of a judgment determined after a trial precluded a default judgment from triggering the payment. Mumpower v. Gheleniuc 2021 WL 665763

While the Southern District in Illinois denied that late notice to the insurer would constitute grounds for denial, it did agree that the MCS-90 endorsement provided no obligation on the part of the insurer to defend, also concluding that neither insurer was obligated to defend under policies which did not cover the vehicle involved in the accident. Artisan and Truckers Casualty Co. v. Neron Logistics, 2021 WL 535541

The Northern District in Texas held that an insurer was entitled to seek a declaration on whether a plaintiff was an employee for the purposes of the employee exclusion under the trucker’s auto policy. The court agreed that extrinsic evidence could be considered when considering whether the complaint sufficiently plead a cause of action when the issue was one of policy interpretation. Canal Insurance Co. Greenland Trucking, LLC, 2021WL 462051

Plaintiff cannot always avoid federal court jurisdiction by failing to assert the amount of damages sought. The Middle District in Alabama allowed the motor carrier to conduct post removal discovery to support the claim that the plaintiff would clearly be seeking more than $75,000 in damages. Goosby v. Briggs, 2021 WL 298817

The punitive damages exclusion under a motor carrier’s excess policy was held enforceable in the Western District of Louisiana. The exclusion was clear and unambiguous. Moreaux v. Clear Blue Insurance Co., 2021 WL 627717

How far back can you go to get information on the plaintiff’s work habits? A motor carrier sought to subpoena records as far back as 1972. The Court agreed that was unduly burdensome, allowing the motor carrier the ability to get records only as far back as 2016. Acuna v. Covenant Transport, Inc., 2021 WL 411146

A defense verdict was reversed and remanded by the District Court of Appeals in Florida. When the trial court admitted hearsay evidence that the plaintiff had an earbud in his ear when he was struck by the defendant, the court held that it was prejudicial to the plaintiff. The hearsay evidence bolstered the motor carrier’s case that it was not negligent and had in fact sounded a horn that was not heard by the plaintiff. Back it went for a new trial. Dayes v. Werner Enterprises, 2021 WL 262037.

Non-trucking or trucking? Which insurer will bear the risk? The Court of Appeals in Louisiana concluded that summary judgment was not appropriate on that issue. The court agreed that conflicting statements concerning the drivers activities immediately before and at the time of the accident give rise to genuine issues of material fact regarding which insurance policy, and possibly both, would be in effect at the time of the accident. Gonzales v. Minion, 2021 WL 264861

Truck driver crossed into plaintiff’s lane during a snowstorm. Is anyone at fault? The Northern District of Ohio concluded that there was no evidence that the plaintiff was negligent, granting judgment on the claim of contributory negligence. The plaintiff was not, however, able to show that the defendant was negligent as a matter of law and summary judgment was denied. Schmid v. Bui, 2021 WL 371713

A motor carrier was successful in vacating a default judgment in the Southern District in Indiana. While the answer was untimely, the evidence showed that the claims adjuster was quickly trying to communicate with plaintiff’s counsel and retain an attorney on behalf of the defendant. There was no prejudice to the plaintiff by vacating the default. Haney v. McClure, 2021 WL 308168

A defense verdict was upheld in the Court of Appeals in Texas. The plaintiff’s estate claimed that the truck driver failed to yield the right of way and turned in front of the decedent causing the fatal accident. After considering all of the issues the court concluded that the jury could have believed that the decedent was traveling at a speed greater than was reasonable and prudent under the circumstances, that he failed to exercise ordinary care, or that he disregarded the safety of himself and others. The statutory right of way assertion required that the person claiming the right exercise proper regard for safety, which plaintiff did not. Cravens v. Alisam Enterprises, LLC., 2021 WL 278316

A truck driver was held to be a “statutory employee” of a warehouseman when he allegedly caused injury to a worker in the warehouse. The Western District of Virginia held that Virginia law bars a negligence action against him for the injuries as worker’s compensation is the exclusive remedy for the plaintiff. Farmer v. Cook, 2021 WL 263373

When the motor carrier failed to raise objections during trial it waived any right to assert those objections when appealing an $11 million verdict. The California Court of Appeals affirmed the judgment Garcia v. Tri-Modal Distribution Services, Inc., 2021 WL 613161

What an expert can rely upon to reach his conclusions on negligence if often disputed. The Northern District in Alabama (a state which seems to be having a busy truck case month) determined that an expert could testify on whether the truck driver breached the the applicable standard of care by failing to manage his space properly (i.e., by following the pickup truck too closely. However, in offering the opinion, he could testify that the Model CDL Manual and/or the FMCSRs establish the applicable standard of care, that the formula the driver generally uses to determine a safe following distance violates the Model CDL Manual, or that the driver’s conduct otherwise violated the Model CDL Manual or the FMCSRs. Stiefel v. Malone, 2021 WL 526217

A motor carrier and its insurer were liable for costs and fees for failing to comply with a court order requiring production of witnesses and discovery. The Western District of Louisiana held that the defendants provided no justifiable reason for the failure to comply. Fees for the motion, for travel to court and for plaintiff’s review of the discovery responses was considered reasonable by the court. Bertram v. Progressive Southeastern Insurance Company, 2021 WL 433976

A repairman who fell through the roof of a trailer he was inspecting for repairs was unable to recover from the motor carrier for his injuries. The Court of Appeals in Washington held that the motor carrier discharged its duty to warn the plaintiff of potential dangers when it informed the plaintiff’s employer that there was a crack or hole in the roof of the trailer and asked that someone come to the facility to inspect and repair the damage. Sudbeck v. Eagle Transport, 2021 WL 321663

Even though the plaintiffs were speeding and intoxicated, the motor carrier was unable to obtain summary judgment on liability. The District Court in Colorado held that there were questions of fact as to whether the motor carrier contributed to the accident by changing lanes. Phillips v Miser, 2021 WL 720068

When a litigant removes a state court action to federal court, may the federal court properly remand the action to state court because of a procedural defect in the notice of removal if the party moving to remand did not raise that particular procedural defect in its initial motion? That was the issue to be decided by the Northern District of Alabama following the removal of a complaint for injuries arising from a truck accident. The answer was yes. When the notice was untimely it did not matter when the objection was raised in the motion to remand. Burns v. Superior Goods, Inc. 2021 WL 512238

CARGO
The potato chips bags that explode in transit. I think that was one of my first cargo claims way back when!. Seems to still happen. The District Court in New Jersey denied summary judgment to the truck broker for the claim for damaged chips concluding that there were questions of fact on whether the plaintiff could prove good order and condition at origin. Ultra Logistics, Inc. v. Cody Keys Trucking, LLC., 2021 WL 631927

When the plaintiff sought a default judgment against a motor carrier for a cargo loss the Southern District in Alabama rejected the request. Plaintiff’s only proof of service was a receipt containing an illegible recipient signature. In addition, the plaintiff did not address the certified mail to a particular person, but generally addressed it to the motor carrier. The record did not support a finding that the certified mail was delivered to “an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” Rollason v. Allstate Van Lines Relocation, Inc. 2021 WL 400542

Is a claim against a carrier for failing to leave shipments at a designated spot between a door and screen door a federal question? The Western District in Washington remanded the case back to state court as there was no evidence that damages would exceed the $10,000 minimum requirement under the Carmack Amendment. Hayes v. Slankrd, 2021 WL 651428

Preemption once again. The Western District of Oklahoma dismissed claims for negligence and breach of contract. The remaining claim was permitted to remain, even if it did not explicitly state that it was a claim under the Carmack Amendment. Radial Engines, Ltd v YRC Freight, Inc., 2021 WL 665536

Worker’s Compensation
A motor carrier was unsuccessful in arguing that its lease with the plaintiff required the plaintiff to seek worker’s compensation only in Tennessee. The Court of Civil Appeals of Alabama concluded that, notwithstanding the parties’ agreement that employment was to be principally localized in Tennessee, Alabama statutes gave the plaintiff the right to seek compensation benefits under Alabama law for injuries sustained in Alabama. The parties were not free to give that right away in the lease. Sellers v. Venture Express, 2021 WL 520902

Thanks for joining us,

Jean & Chad

© 2021 Central Analysis Bureau