Bits & Pieces

CAB Bits & Pieces May 2024

Hello Everyone! 

May is quite the busy month! With Mother’s Day, Memorial Day, graduations, and school summer break kicking off as we usher in Q2.

It’s been a busy convention season so far. We’ve been able to see so many of you at various industry events recently and look forward to connecting with even more of you soon in person. We’ve been busy with client on-site trainings as well. Reach out to us if your team would benefit from some specific training for your team to ensure you are getting the most out of your CAB platform.

Remember, CVSA’s International Roadcheck ’24 is coming up on May 14 – 16. Remind your fleets and drivers of the event and the importance of staying on top of vehicle inspections and driver expectations. Check out last month’s Bits & Pieces for additional details should you need more information on this annual event and the link to FMCSA’s guide on tractor pressure systems.

This coming Memorial Day let’s take time to remember those heroes who fought for us.

Chad Krueger and Pam Jones


  • CVSA International Roadcheck ’24 | May 14 – 16 | Enforcement facility (fixed and portable) near you | Remind your fleets & drivers of this event and the importance of inspection and driver preparedness
  • International Risk Management Institute, Inc., (IRMI) Transportation Risk Conference (TRC) | June 3 – 5 | Houston, TX

CAB Live Training Sessions

Tuesday, May 14th | 12p EST

The Power of Precision: Utilizing CAB Data for Audience Targeting in Digital Marketing | Joe Cantu

Join us as we explore how CAB data can supercharge your digital marketing efforts across paid social, programmatic, and paid search channels. 

Whether the goal is to find customers, gain market share, or prevent churn, CAB data alongside an effective digital marketing strategy can improve lead quality, increase efficiency, and drive bottom-line growth. 

Tuesday, May 21st | 12p EST

Intro to CAB: Flow & Navigation | Connor Harper 

An overview of the basic flow and navigation of the CAB website. 

To register for the webinars, sign into your CAB account. Then click live training at the top of the page to access the webinar registration.

Explore all of our previously recorded live webinar sessions in our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks

Save your team time and increase your productivity with our integrations, APIs, and custom reports. Here are some platforms we have worked with and offer custom solutions as well. 

CAB integrations options


FMCSA to make Congressionally-required changes to under-21 pilot program. The Federal Motor Carrier Safety Administration is seeking emergency approval from the White House Office of Management and Budget to amend the Safe Driver Apprenticeship Program. The spending bill included language that bars FMCSA from requiring the use of inward facing cameras or requiring a motor carrier to register an apprenticeship program with the Department of Labor as a condition for participation in the SDAP program. Read more… 

FMCSA forces broker transparency from Uber Freight after double brokering scam. The FMCSA, for perhaps just the second time in its history, forced a broker to reveal what a shipper paid them after a double brokering scam on Uber Freight’s network left a carrier unpaid and complaining to the regulator. Read more…  

What it takes to advocate for legal abuse reform. Addressing lawsuit abuse is a “top tier issue” for the American Trucking Association, said David Bauer, vice president of state and tax policy. Besides trying to rein in huge lawsuits and nuclear verdicts, Bauer noted that the goal of tort reform is to restore balance and fairness to the judicial process for the trucking industry, pointing out how the judicial environment has become “unbelievably skewed” against the industry. Read more… 

Convoy fallout: Stiffed carrier feels freight brokers’ bond amount should vary according to company size. Small fleet owner Surinder Gill was, in part, the subject of Overdrive Executive Editor Alex Lockie’s reporting on the collapse of the Convoy broker which told the tales of owner-operators and small fleet owners who, months following the abrupt shuttering of Convoy in October 2023, remained unpaid for in some cases thousands’ worth of work hauling. Read more… 

Renewable diesel a more effective tool to decarbonize trucking than BEV, report says. Research conducted by American Transportation Research Institute (ATRI) shows renewable diesel is not only a promising solution for lowering the trucking industry’s CO2 emissions, it’s also significantly cheaper than battery electric technology. Read more… 

Benchmark diesel price below $4 again as war-led rally fizzles. The benchmark diesel price used for most fuel surcharges is back below $4 a gallon. A decline of 2.3 cents a gallon from the prior week’s number put the Department of Energy/Energy Information Agency price at $3.992. It’s only the second time in the past 11 weeks that the price has been below $4. Read more… 

May 2024 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinak Law Group LLP.


JNM Express, LLC v. Lozano, 2024 WL 1685012, No. 21-0853 (Tex. Apr. 19, 2024).  In this appeal arising from a substantial jury verdict against a motor carrier, a freight broker, and their shared owners, the Supreme Court of Texas reversed the jury verdict against the broker, finding there were insufficient facts in the record to support the verdict, and further, reversed the verdict against the owners of the trucking company and brokerage, finding that the “injustice” prong to pierce the corporate veil was not satisfied.  At the time of the accident, Lauro Lozano was driving a truck owned by JNM Express, LLC, but leased to ANCA Transport, Inc, when he fell asleep and crashed into another 18-wheeler.  JNM and ANCA were both owned by Jorge Marin and the two companies shared equipment and drivers.  Jorge Marin and his wife owned a third company, Omega Freight Logistics, LLC, which is a freight broker.  The Marins jointly manage all three companies.  Following the accident, Lozano (the driver of the CMV) and his wife filed suit against JNM, ANCA, Omega, and the Marins, individually.  The lawsuit alleged Lozano had been driving in violation of federal hours-of-service regulations on the trip that led to the accident and that Lozano had alerted Jorge Marin to the hours-of-service issue, but Marin requested Lozano to falsify his driver logs to continue the trip.  They alleged the hours-of-service violations and lack of required rest was a cause of the accident.  As an initial issue, the Supreme Court of Texas addressed whether Lozano was an employee of any of the companies, as that could affect the comparative negligence standard under Texas’s labor code.  While noting that JNM and ANCA were clearly Lozano’s employer under the 49 C.F.R. 390.5 definition, the court posed whether that was the appropriate standard to apply, as opposed to the common law definition of employee, in the context of a suit by a driver against the motor carrier.  In rejecting that Omega would be the employer of Lozano under either the federal statutory or common law definition, the court held the mere reference to Omega as the employer in the accident report, standing alone, was insufficient proof of employment.  The court went on to hold there was no other factual support in the record to support an employment relationship, even under the broader 49 C.F.R. 390.5 definition, between Lozano and Omega.  Next, the court reversed the portion of the decision that held the Marin’s individually liable under an alter ego theory of piercing the corporate veil.  Under the Texas standard, “alter ego is … one of the bases for disregarding the corporate fiction.  Alter ego applies when there is such unity between corporation and individual that the separateness of the corporation has ceased and holding only the corporation liable would result in injustice.”  The court found the “injustice” prong was not met under the facts of the case.  It found “[t]he Lozanos point to nothing in the record showing that the Marins abused the corporate form such that failing to pierce the corporate veil would result in ‘injustice’ in the sense that our alter ego cases describe that concept. One relevant consideration in the tort context is whether the corporation was ‘reasonably capitalized in light of the nature and risk of its business.’ Yet the Lozanos produced evidence at trial to demonstrate that the companies did have the resources to protect their drivers.”  As such, it dismissed Omega and Ms. Marin and remanded the case for further proceedings to determine whether the damage award was excessive.

Butler v. Adorno, 2024 WL 1312477, C.A. No. 5:21-cv-182 (M.D. Ga. March 27, 2024).  In this personal injury action arising from a motor vehicle accident, a motor carrier prevailed in obtaining summary judgment on negligent hiring, retention, and training causes of action.  The defendant driver had two periods of employment with the motor carrier, initially between August 2018 and December 2018, and then again from April 2019 through the date of the accident.  The motor carrier employed a third-party company that ran background checks and verified past employment for potential driver hires.  The motor carrier also obtained a MVR going back seven years.  Initially, in 2018, the driver’s MVR revealed two incidents: (1) a 2015 ticket for speeding in a non-CMV; and (2) a 2017 citation for hauling a trailer with in inoperative slack adjuster.  The motor carrier reviewed these violations at the time, determined they were not disqualifying, and hired the driver.  The driver had been involved in a 2008 accident while working for another motor carrier, but the 2008 accident was not contained in the MVR, which only went back seven years. It likewise was not revealed by the third-party investigator’s inquiries to prior companies. The motor carrier further required all its drivers to have two years of driving experience and provided training, including a written test on the FMCSRs, training using the Smith System, and road testing.  When the driver came back to work in 2019, the motor carrier again ran his background check but did not require him to undergo additional training.  In addressing the negligent hiring and retention causes of action, the Court found they presented no issue of material fact.  It held there was no evidence the motor carrier knew the driver had been in another rear-end collision at the time he was hired.  Further, the court noted there was no evidence that the motor carrier failed to comply with the FMCSRs, and in fact, “went beyond them” by obtaining a seven-year MVR as opposed to a three-year MVR.  The motor carrier did request information from the driver’s former employers for the three years preceding the application, consistent with FMCSR requirements.  The Court further found that even had the motor carrier done a complete re-investigation at the time of the driver’s re-hire in 2019, there was no evidence to suggest the 2008 accident would have been discovered.  Accordingly, there was no evidence to sustain the negligent hiring and retention claims and those were dismissed.  With respect to the negligent training cause of action, the Court found there was no supporting evidence, having previously excluded plaintiffs’ expert opinions for “lack of reliable data and methodology.”  Additionally, it found there were no federal regulations or “other authority” mandating such training, the violation of which could support the cause of action.  Accordingly, the Court likewise dismissed the negligent training cause of action.  Finally, the Court dismissed the negligent maintenance cause of action, finding there was no evidence in the record establishing the tractor-trailer involved in the accident was defective in any way and/or that any such defect played a role in the accident.  However, the Court denied summary judgment to the driver on the negligence claim and denied summary judgment to the motor carrier on the vicarious liability claim premised upon the driver’s negligence. 

Cardenas v. Moody, 2024 WL 1257423, C.A. No. 23-cv-001048 (D. Colo. March 25, 2024).  In this personal injury action, a motor carrier obtained, via a motion to dismiss at the pleadings stage, dismissal of negligent hiring, training, and supervision causes of action.  The operative pleading included allegations that the motor carrier should have a training program that ensured drivers knew how to safely operate CMVs in accordance with FMCSRs and should exercise reasonable care in hiring, training, retention, and supervision of its drivers, which it was alleged the motor carrier failed to do in this instance.  However, in addressing the negligent hiring cause of action, the Court noted the pleading “lacks any factual allegations that [the motor carrier] knew or should have known when it hired [the driver] that his use of its truck would pose an unreasonable risk of harm to anyone. They allege no facts concerning [the driver’s] driving history or characteristics to support a reasonable inference that he was an incompetent driver when [the motor carrier] hired him. Nor do Plaintiffs allege that [the motor carrier] failed to conduct an appropriate inquiry into [the driver’s] background or follow up on any apparent issues in connection with his hiring or that a more searching inquiry would have revealed he had dangerous propensities.”  With respect to the negligent training claim, the Court found the pleading “lacks allegations that [the motor carrier] knew or should have known [the driver] presented some undue or unreasonable risk to third parties such as Plaintiffs. Nor do Plaintiffs make any factual allegations about the type of training [the driver] received, how it was deficient, or how it played a role in causing the accident.”  Last, with respect to the negligent supervision claim, the Court found “[t]he lack of factual allegations that [the motor carrier] knew or had reason to know that [the driver], because of his qualities, was likely to harm others in view of the work entrusted to him is fatal to this claim as well.”  Stated simply, the Court found the conclusory allegations of duties, paired with the fact the accident occurred, was insufficient to support these direct liability claims against the motor carrier. 

Heath v. J.S. Helwig & Son, LLC, 2024 WL 1361873, C.A. No. 3:21-cv-119 (M.D. Ga. March 29, 2024).  In this personal injury action, the motor carrier successfully had claims for negligent hiring, training, retention, supervision, and entrustment dismissed via summary judgment.  Helwig, the motor carrier, hired Black as a company driver in October 2019.  Helwig requires its drivers to be a minimum age; to have been driving on a Class-A CMV for at least one year in the past 3 years; and no driver can have more than three moving violations in a three-year period, no more than two moving violations in a 12-month period, and no Department of Transportation (“DOT”) reportable accidents within a period of one year.  Black underwent Helwig’s hiring procedure before receiving his offer of employment which included completing Helwig’s online application and signing disclosures for background checks from consumer reporting agencies, the Federal Motor Carrier Safety Administration, the DOT, and his criminal history. On his application, Black disclosed his previous employment as a truck driver with eight other trucking companies since 2008. He reported one termination ten years before, in 2009, for a failed alcohol test. The application instructed him to disclose moving or traffic violations within the DOT’s required previous three-year-period. Black reported he had no violations within that time period, but he did include one speeding ticket for travelling nine miles over the speed limit in March 2016. Black stated he had not been involved in any accidents within the past five years, had no criminal record, and no convictions for any alcohol, drug, or driving violations.  Helwig utilized third-party vendors to conduct independent investigations into Black’s background in accordance with the DOT’s three-year look-back period. The investigations included following up with Black’s previous employers for references and inquiring about any employment issues, pulling his Motor Vehicle Report, conducting criminal background checks, and obtaining a drug screening. The reports Helwig received reflected no issues with drugs or alcohol; indeed, Black’s previous employers stated Black had no issues with drugs or alcohol. Black’s drug test was negative in all respects. Black’s Motor Vehicle Report showed one violation and subsequent license suspension in 2014 for failing to pay a traffic ticket in 2013. His license was reinstated in 2015. No other violation was reflected on his record. Thus, his record reflected no moving violations in the applicable three years before his date of hire; the only moving violation reflected in his file was his self-reported speeding ticket in 2016. His record reflected no previous accidents.  Before hiring Black, Helwig required, as it does every prospective employee, to complete a road test, which exceeds the Department of Transportation’s requirements. Helwig also required its new hires, including Black, to complete over 10 training modules conducted by online training vendor Infiniti-I which Black had to pass or continue retaking until he passed before driving on the road. Black passed the road test and completed each training module.  Considering the foregoing evidence, the Court found plaintiff could not support each of the direct negligence claims against Helwig as required under Georgia law.  Accordingly, it granted summary judgment to Helwig on the negligent training, hiring, retention, supervision, and entrustment causes of action. 


Morales v. OK Trans, Inc., 2024 WL 1349874, C.A. No. 2:19-cv-00094 (S.D. Tex. March 29, 2024).  In this personal injury action arising out of an accident involving a tractor-trailer, the Court granted Penske summary judgment finding it could not be held liable for the purported negligence of the operator of the tractor-trailer.  On or about December 26, 2018, in Bee County, Texas, Satnam Singh Lehal was driving a tractor-trailer owned and operated by OK Transport, Inc. (“OK Trans.”).  At some point, the tractor-trailer jackknifed, crossed into the oncoming lane, and collided with a pick-up truck driven by Lyndon Dean Meyer, who died on impact.  Penske previously moved for summary judgment on the basis that it acted only as a broker and not a motor carrier and therefore could not be held liable for the alleged injuries to the decedent.  The Court denied that motion, finding fact issues existed as to whether Penske operated in the capacity as a broker or motor carrier.  Penske subsequently moved for summary judgment, contending that even assuming arguendo it operated as a motor carrier, there was no basis for liability because it could not be the statutory employer of the driver of the tractor-trailer.  Insofar as the plaintiffs did not allege employment under 49 C.F.R. part 390.5, the sole issue before the court was whether the driver was Penske’s statutory employee under the “responsibility and control” test as developed under Texas law.  Under that test, the Court explained that an entity is a statutory employer if: (1) the entity is a motor carrier and not a broker; (2) it does not own the vehicle involved; (3) it is using the vehicle in interstate commerce; and (4) it does not employ the driver.  Only the “interstate commerce” element was at issue in the pending motion.  The Court found, consistent with various federal regulations, that a motor carrier (which Penske was assumed to be for the purpose of the motion) cannot use a vehicle in interstate commerce unless it has an arrangement with the owner or driver of the vehicle, which was absent under the facts of this case.  Penske contended it could not be the driver’s statutory employer because there was no written or oral lease, or any other arrangement between Penske and the driver or OK Trans.  Penske, instead, contended it contracted with Penske Transportation Management LLC (“PTM”) to broker the shipment to Liberty Lane; Liberty Lane contracted Liberty Commercial, LLC, to sub-broker the shipment to OK Trans; and OK Trans employed Lehal to drive the shipment.  Penske argues that five steps removed is four steps too many; absent a “direct arrangement,” it cannot be vicariously liable for the driver’s negligence.  In addressing this argument, the Court cited 49 U.S.C. § 14102(a) and found “[t]he intent of the amendments was to ensure that interstate motor carriers would be fully responsible for the operation of leased vehicles and the supervision of drivers, thus protecting the public from motor carriers who might otherwise attempt to shirk financial responsibility for accidents.”  The “responsibility and control” test under Texas law developed out of the regulations applicable to leases for interstate motor carriers.  The Court explained that courts applying § 14102 and the responsibility and control regulations regularly impose statutory-employer liability on motor carriers when the carrier has a direct arrangement with the owner or driver of the vehicle at issue. Conversely, the Court found no cases where a court imposed statutory-employer liability absent an arrangement between the motor carrier and the vehicle’s owner or driver.  Accordingly, while the Court agreed with plaintiff that the failure to adhere to the written lease regulations would not absolve a motor carrier from statutory-employer liability, here Penske had no arrangement with OK Trans or the driver at all—not that it had an arrangement but did not formalize it via a written or oral lease.  Thus, the Court reasoned “considering the text of § 14202, the responsibility and control regulations, and the relevant case law . . . an arrangement must exist between the motor carrier and the owner or driver of the vehicle at issue to trigger statutory-employer liability.”  The Court went on to find that under the facts, there existed no evidence to support such an arrangement between Penske and the driver or OK Trans.  As such, it granted summary judgment to Penske. 


Shaw v. United Parcel Service Inc., 2024 WL 469336, C.A. No. 3:23-cv-01996 (N.D. Tex. Apr. 4, 2024).  In this case arising from an alleged refusal of UPS to pick up and make deliveries from plaintiff’s location, the Court denied the plaintiff’s motion for remand.  UPS removed the case based on federal question jurisdiction under 28 U.S.C. §§ 1337 and 1445 because Carmack preempted plaintiff’s claims and the amount in controversy exceeded $10,000.  Plaintiff’s original complaint alleged monetary relief for “no less than $70,000.”  In his motion to remand, plaintiff offered to stipulate to damages less than $10,000, but the court rejected this as a basis to remand the case, noting that the amount contained in the active pleading was the operative amount to consider.  The court further held the plaintiff’s claims fell within the purview of the Airline Deregulation Act, which provided a separate basis for federal question jurisdiction.  As such, it denied the plaintiff’s motion to remand. 

Flynt v. Coleman Worldwide Moving, LLC, 2024 WL 1337356, C.A. No. 4:23-cv-00327 (E.D. Tex. March 28, 2024).  In this action arising from a delayed interstate move, the court granted the plaintiffs’ motion to remand.  According to the plaintiffs’ Complaint, the defendants are moving service companies hired by plaintiffs for their move from Texas to Kansas.  Plaintiffs’ claims arise out of defendants’ alleged failure to arrive to move plaintiffs’ belongings as scheduled. On April 27, 2022, plaintiffs and defendants entered into an Estimate and Order for Service Agreement (“the Agreement”) that defendants would arrive at plaintiffs’ residence in Lewisville, Texas on July 18, 2022, and load plaintiffs’ belongings.  Defendants would then deliver plaintiffs’ belongings to plaintiffs’ new residence in Manhattan, Kansas between July 19, and July 27, 2022.  Plaintiffs allege that defendants never arrived on July 18, 2022, and that defendants “admitted to improperly calendaring” plaintiffs’ move.  Plaintiffs allege that because of defendants’ misrepresentations, plaintiffs were forced to make other arrangements leading to a delayed move out and additional fees to set up a rush move out with alternative company, being forced to move out without power and air conditioning in the summer heat of Texas. Further, the plaintiffs allege they had to rearrange various delivery and installation appointments at their new home, causing weeks of delays for some of their appointments and missed work.  On October 11, 2022, plaintiffs sent defendants a demand letter for $9,630.63 in damages.  When the demand was not met, plaintiffs filed suit on December 29, 2022, in Texas state court.  Plaintiffs thereafter filed an Amended Complaint in state court on April 5, 2024.  Defendants filed a Notice of Removal on April 14, 2024, and thereafter filed a Motion to Dismiss on April 18, 2024, on various grounds, including Carmack preemption.  In arguing for remand, plaintiffs contended: (1) defendants were not subject to Carmack preemption because they never “received” the goods in question and therefore did not act as a motor carrier; and (2) the Notice of Removal was untimely because defendants were aware prior to the Amended Complaint that plaintiffs were seeking more than $10,000.  In addressing the first argument, the Court agreed with plaintiffs.  It found it lacked subject matter jurisdiction under the Carmack Amendment because the Carmack Amendment did not apply to plaintiffs’ claims.  Specifically, the Court held the statute sets out three categories of carriers that may be potentially liable under the Carmack Amendment when a shipper suffers a loss: “(A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported[.]”  Here, it found the defendants did not meet any of the three categories because (1) they did not “receive” plaintiffs’ property because they never “took possession” of the property; (2) did not serve as the “delivering carrier” because defendants “did not deliver [p]laintiff’s property” and did not “connect ‘any other carrier that delivers the property’”; and (3) the property did not travel over defendants’ “line or route.”  The Court likewise rejected the defendants’ argument that by “entering into the Agreement” they were providing “services related to ‘transportation’” and therefore fell within Carmack’s purview.  The Court rejected that the Agreement constituted a “service related to that movement.”  The Court went on to distinguish other case authorities cited by defendants on the basis that defendants never “retrieved” or “transported” plaintiffs’ items, and consequently “did not issue a bill of lading.”  Accordingly, the Court granted plaintiffs’ Motion to Remand.  However, they rejected the plaintiffs’ request for attorneys’ fees related to the Motion to Remand, accepting defendants’ argument that it was not until a March 30, 2023, email between the respective counsel that the plaintiffs first clearly identified they were seeking damages in excess of $10,000 dollars insofar as all pleadings prior to that did not contain a specific claimed amount.  As such, it found the Notice of Removal was timely.  Considering the various arguments on Carmack preemption, the Court also agreed the defendants’ removal was not “objectively unreasonable.”  As such, it denied plaintiffs’ requests for attorneys’ fees and costs. 

Scheuer v. Rado Express Logistics, Inc., 2024 WL 1328818, C.A. No. 23-cv-00531 (N.D. Ill. Mar. 28, 2024).  In this case arising from an “interstate move gone wrong,” the court partially granted defendants’ motion to dismiss.  Plaintiffs contacted Trinity Relocation Group, LLC (“Trinity”), a broker for shippers and interstate carriers, regarding a move from their Ohio residence to their Florida residence. The plaintiffs provided Trinity with detailed dates and times that the move would need to be completed by due to a pending sale of their Ohio residence and their anticipated arrival at their Florida residence.  Trinity provided plaintiffs with a binding estimate for   $13,381.41 for 1,496 cubic feet of property (the “Binding Estimate”).  In its capacity as a broker, Trinity researched carrier options and ultimately recommended Defendant Rado to plaintiffs as the interstate carrier that would perform the move.  After Rado had loaded most of the plaintiffs’ possessions onto the truck, the Rado movers approached plaintiffs to renegotiate Rado’s Interstate Bill of Lading Contract (“Rado Contract”), now that they had a “better feel” of the amount of property they were moving.  The re-negotiated Rado Contract charged Plaintiffs $34,132.30, nearly three times the Binding Estimate, based in part upon an updated volume of items amounting to 3,800 cubic feet. The Rado movers told plaintiffs that this price was “final” if they “wanted their belongings delivered.” In addition, the Rado movers told Mr. Scheuer that his belongings would not arrive to his Florida residence by September 1, 2022, as previously promised.  As a result, “out of fear” that their possessions would not arrive on time, plaintiffs agreed to a $5,700 “expedited delivery charge.”  Despite the expedited delivery charge, plaintiffs’ property did not arrive in Florida on September 1, 2022.  Instead, it arrived two days later and with no crew to unload it.  The unloading crew arrived the next day, September 4, 2022, demanding the full balance of the Rado Contract, including the expedited delivery charge, before any property would be unloaded. Left with little option, plaintiffs complied and paid the full balance demanded.  Adding insult to injury, while unpacking their belongings, plaintiffs discovered that various items had been damaged. Plaintiffs thereafter filed suit against Rado for violations of 49 C.F.R. § 375.401 et seq. (Count I), the Carmack Amendment, 49 U.S.C. 14706 (Count II), and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq. (Count IV), and for fraudulent misrepresentation (Count III), and breach of contract (V).  Rado moved to dismiss all claims against it.  The court held that Count I under 49 C.F.R. § 375.401 was not preempted by Carmack Amendment, whose preemptive scope only extended to state common law causes of action but not “other federal claims.”  However, the Court did find Carmack preemption “clearly” applied to the plaintiffs’ breach of contract claim.  While a closer call in the Court’s view, it found Carmack likewise preempted the fraudulent misrepresentation and ICFA claims because they were not “sufficiently distinct from the contract of carriage.”  Accordingly, it allowed plaintiff’s claims under 49 C.F.R. 375.401 and the Carmack Amendment claim to survive the motion to dismiss. 


Smallwood v. ACE Property & Casualty Ins. Co., 2024 WL 1742240, C.A. No. 3:23-cv-67 (E.D. Va. April 23, 2024).  This declaratory judgment insurance coverage action arose from an accident in which the plaintiff was injured when an individual was attempting to unload materials from a trailer.  Plaintiff was hired to oversee the transportation and delivery of materials to an Express Oil Change location that was under construction.  Plaintiff was acting in that capacity when he requested Alstop Trucking provide a flatbed tractor trailer and driver to assist him in picking up and transporting construction materials to the jobsite.  Due to limited space at the jobsite, each trailer had to be offloaded one side at a time.  In connection therewith, the “site supervisor” (non-Alstop employee) utilized a Bobcat skid steer to offload materials from the Alstop trailer.  While attempting to unload the materials from the Alstop trailer, the site supervisor caused the Bobcat to overturn and the materials fell off the Bobcat onto Plaintiff.  ACE insured Alstop under a Commercial Auto Liability Policy and the involved Alstop tractor trailer was insured under the ACE Policy.  Plaintiff made a claim for UM benefits under the ACE Policy.  The Court, in addressing potential UM coverage under the ACE Policy, found Plaintiff did not qualify as an “insured” under the ACE Policy because Plaintiff was not “using” or “occupying” the Alstop tractor or trailer at the time of the Accident.  Specifically, the Court found Plaintiff was not “using” the Alstop tractor trailer at the time of the Accident.  It noted Plaintiff was around 10 feet from the tractor trailer when the Bobcat tipped and was involved in transportation separate from—and nonessential to the use of—the tractor trailer.  Similarly, the Court found Plaintiff was not “occupying” the Alstop tractor trailer because he away from the tractor trailer and his actions in directing the Bobcat “were not ‘immediately related to the occupancy’ of the Alstop tractor trailer.”  As an additional or alternative ground, the Court held that the Bobcat was not an “uninsured motor vehicle” sufficient to trigger coverage under the ACE Policy’s UM endorsement.  For each of these reasons, the Court held the ACE Policy did not afford UM coverage under its clear terms, and accordingly dismissed the DJ action against ACE. 

Pious Trans, Inc. v. Certain Underwriters at Lloyd’s London, 2024 WL 1710171, Case No. 23A-PL-3044 (Ind. Ct. App. Apr. 22, 2024).  In this insurance coverage dispute, the Indiana Court of Appeals affirmed summary judgment in favor of the insurer under a physical damage insurance policy to the motor carrier.  In July of 2020, Pious Trans, Inc., which is owned and operated by Gagandeep Singh, hired Yadwinder Singh (“Singh”), who had been issued a New York Class A commercial driver’s license (“CDL”) approximately sixteen months previously. In December of 2020, Certain Underwriters at Lloyd’s, London (“Underwriters”), issued a physical-damage insurance policy to Pious (“the Policy”). In April of 2021, Pious added Singh and a tractor-trailer with a gross weight of over 26,001 pounds (“the Freightliner”) to their Policy coverage. In August of 2023, Singh was operating the Freightliner and was involved in a collision with another tractor-trailer. After Underwriters denied Pious’s claim arising from the collision, Pious, Gagandeep, and Singh (“Appellants”) sued the other driver for negligence and Underwriters and Pious’s insurance agent for breach of contract and bad-faith denial of their claim. Underwriters moved for summary judgment on the questions of coverage and bad faith, which motion the trial court granted.  The Underwriters Policy at issue included specific requirements for coverage, including that the vehicle be operated by a driver “who at inception of this Policy or at the date of hire, whichever is the later, provides documented evidence of an MVR not more than 60 days old or not older than the date of loss if the driver is involved in a claim showing that they: [….] 2. Have a minimum two (2) years (twenty-four (24) consecutive months) of Commercial Driver’s License experience, at the time of policy inception or date of hire, whichever is the later, driving similar equipment to that insured under this Policy.”  When Pious added the Freightliner as a scheduled vehicle and Singh as a scheduled driver, it incorrectly listed his hire date as April 1, 2021, instead of July 6, 2020.  Underwriters denied the claim arising from the August 3, 2021, accident, citing the lack of required 2 years CDL experience by Singh at the time the Policy issued.  The Court found that the Policy was not ambiguous in defining “commercial driver’s license” and that Singh’s Class E New York license was not equivalent to a CDL.  As such, Underwriters was entitled to deny coverage for the Accident and the appellate court affirmed the summary judgment ruling in favor of Underwriters. 

Harco Nat’l Ins. Co. v. Knowles, 2024 WL 979231, Case No. A23A1263, A23A1264 (Ga. Ct. App. March 7, 2024, review denied March 26, 2024).  In this insurance coverage declaratory judgment action, the Court agreed with the insurer that the loss was excluded from coverage under the automobile and CGL policies because it involved a work-related injury that fell within the exclusions within the respective policies.  The undisputed record shows that in the spring of 2018, Popwell began working for EKI as a “cut down man” in a commercial logging operation. His job was to operate a machine called a feller buncher to cut trees in a controlled manner so that they could be loaded onto trucks. He reported to work when and where directed by EKI, and he was paid every week based on the weight of the wood he cut. Walter Knowles was Popwell’s supervisor.  With respect to the details of the accident, Popwell testified that on May 3, 2018, he was working at a wooded job site along with Knowles and other personnel. Knowles determined the hours Popwell worked, which fluctuated depending on when they finished loading trailers with logs. According to Popwell’s deposition, around mid-day, he stopped work to eat lunch. He got in his personal vehicle to drive to a nearby store that sold fried chicken, and as he was leaving the logging area on a dirt road, he soon noticed that Knowles was operating a skidder and pushing a loaded truck that needed extra traction to navigate the unpaved road. Popwell put his vehicle in park (facing the skidder) to wait for the operation to finish; when Knowles got the loaded truck moving sufficiently, he turned the skidder around and headed in Popwell’s direction. As Popwell remained stationary in his vehicle, Knowles accidentally drove the skidder into and onto Popwell’s vehicle, causing multiple injuries to him.  Popwell initially received workers’ compensation payments from Forestry (EKI’s carrier) for a few weeks, but thereafter, a dispute arose regarding workers’ compensation coverage, and Popwell sued EKI and Walter Knowles. To get clarity as to its coverage obligations, Harco filed the present action seeking: a declaration that Popwell was acting within the scope of his employment at the time he was injured, that his injuries are compensable under the Workers’ Compensation Act (“the WCA”), and that Harco’s WCA exclusions in the policies issued to EKI preclude coverage.  The Court’s opinion focused upon Georgia-specific rules for injuries during a mid-shift lunch break.  It explained “[t]he Supreme Court of Georgia has clarified that even though eating lunch is not the actual work an employee is hired to do, an ordinary mid-day lunch break on the employer’s premises is still considered to be ‘in the course of’ employment for purposes of the WCA. This is because eating lunch at the workplace is an activity incidental to work and ‘reasonably necessary to sustain [an employee’s] comfort at work.’”  The Court noted the unrefuted testimony established that Popwell was sitting in his vehicle in the process of leaving the job site to go to lunch when he was hit by the skidder that was being operated in connection with the logging operations.  It further noted that Popwell had “not yet” left the logging area.  Putting all this together, the Court determined Popwell was “still in the logging area on his lunch break and was not otherwise engaged in a personal activity outside the scope of his employment.”  The collision was “a risk ‘reasonably incident’ to Popwell’s employment in the logging operation.”  As such, the injuries fell within the exclusions to coverage under the Harco policies. 


Shock v. LAC Logistics, LLC, 2024 WL 1653528, C.A. No. 1:24-cv-83 (N.D. Ind. Apr. 16, 2024). In this action arising from an alleged on-the-job injury and alleged retaliatory discharge, the court granted plaintiff’s motion to remand, finding it lacked subject matter jurisdiction over the dispute. Plaintiff was employed by defendant as a CDL driver. Plaintiff claimed that in June 2023 he sustained an on-the-job injury for which he sought workers compensation benefits. Defendant denied the workers compensation claim. Thereafter, in August 2023, defendant directed plaintiff to drive a route from Ohio to North Carolina. Plaintiff alleges he refused, citing that he was over on his hours of service (“HOS”) and was required to rest. Plaintiff claims defendant advised him to run the route under the agricultural exemption to the HOS. Plaintiff claims the load did not fall within the agricultural exemption and again refused the load, following which the defendant fired him. Plaintiff filed a lawsuit in Indiana state court alleging two counts: (1) wrongful termination under the Indiana Workers Compensation Act; and (2) wrongful termination for refusing to engage in unlawful conduct. The defendant removed the action to federal court, citing the Motor Carrier Safety Act, 49 U.S.C. § 31101 et seq., as the sole basis of removal. The federal court sua sponte requested briefing on the issue of federal jurisdiction.  Plaintiff likewise moved to remand the case to state court. Defendant acknowledged “Plaintiff has relied exclusively on state law in bringing this action,” but nevertheless contended federal question jurisdiction exists because plaintiff’s refusal to accept the route was based on plaintiff’s belief that doing so would violate federal regulations.  Noting that the nature of plaintiff’s claims was solely for wrongful discharge under Indiana state law and that defendant’s “potential assertion that it complied with federal law is of no consequence” because defenses do not establish federal question jurisdiction, the court remanded the action to state court. 

CAB Bits & Pieces April 2024

Hello Friends,  

Happy Spring! What interesting experiences Mother Nature is throwing our way as we continue through convention season.

We wanted to remind you of an interesting upcoming industry event. The annual International Roadcheck inspection blitz is coming up May 14 – 16 at a weigh facility for portable inspection site near you! Commercial Vehicle Safety Alliance, CVSA, hosts this annual 72-hour event across Canada, the U.S., and Mexico to shed light on commercial vehicle inspections and each year have a different special emphasis of focus.

This year’s special emphasis is tractor protection systems and alcohol and controlled substances possession. The QR code below brings you to a CVSA bulletin on tractor protection systems.

QR code

We are out quite a bit lately. Hopefully, we can connect with you live at an event soon.

Chad Krueger and Pam Jones

CAB Live Training Sessions

Tuesday, April 9th | 12p EST MC Safety – Take Control of Your Data

Mike Sevret will take a deep dive into CAB’s MC Safety, a module within our motor carrier platform, MCA suite of tools. 

Tuesday, April 16th | 12p EST CAB List – Monitoring, Carrier Health, Summary Reports  

Learn how best to utilize the CAB List® to monitor your book of business. Chad Krueger will talk about triggered alerts, analyze the health of your motor carriers and so much more.

CAB Events

  • Georgia Motor Truck Association – Pam Jones & Mike Sevret are presenting “Maximizing Fleet Safety and Profitability through Data” to GMTA’s Safety Management Council 4/11 12P, Atlanta GA.
  • International Marine Underwriters Association, IMUA, – 4/22-23 Sean Gardner and Dan Smith are attending.
  • National Interstate & Vanliner Safety Summit – 4/22-23 Pam Jones & Mike Sevret are attending.
  • ATA Safety Security & Human Resources Conference – 4/25 – 27 Pam Jones, Chad Krueger, and David Elliott are attending. Chad is presenting along with Rob Moseley of Moseley Marcinak Law Group LLP.
  • MCIEF – 4/30-5/2 – Chad Krueger, Brian Stamper, and Dan Smith are attending.

To register for the webinars, sign into your CAB account. Then click live training at the top of the page to access the webinar registration.

Explore all of our previously recorded live webinar sessions in our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks

CAB includes inspection times on the CAB Report® in different ways. On the insurance platform, both time spent inspected in the last 12 months and 24 months is shared. Plus, if you hover over each of those breakdowns, you can see average inspection time for the specific time frames.

CAB report inspection times

The MC Advantage Safety module also breakdown the inspection times but a little differently. Here you can break the data by the month, hour range, or day of the week. In addition, hovering over the different timeframes, offers the counts per timeframe.

inspection button
MC Safety inspection times


Bill seeks to remove cost, redundancy from TWIC, hazmat certification. “Subjecting essential supply chain workers to the same exact background check multiple times in order to receive different credentials from the same agency does nothing to enhance security,” said American Trucking Associations (ATA) President and CEO Chris Spear. Read more…

EV charging for the U.S. freight trucking market is starting to scale. One of the first EV charging stations of scale for freight trucks is opening near the major ports of Los Angeles and Long Beach, California, as the trucking market takes some limited, but significant steps to build the infrastructure required for a long-term transition to EV trucking and net-zero shipping. Read more…

How owner-operators still standing have weathered big rates drops through the present. ATBS Vice President Mike Hosted and Overdrive contributor and trucking business coach Gary Buchs recently presented on the recently released MATS Partners in Business Owner-Operator Business Handbook. They reviewed average owner-operator numbers from 2023 and offered additional strategies for surviving the down market. Read more…

A trucking and rail strategy that boomed during pandemic shocks is heating up again. A push of freight cargo back to the West Coast ports has increased the use of “transloading,” a truck-to-rail or rail-to-truck strategy that was popular during the Covid supply chain shocks and some supply chain experts say is here to stay. Read more…

Population shift will soon drive trucking tidal wave, expert says. A freight trough that has plagued trucking since emerging from the COVID-19 pandemic is temporary, and recovery will be spurred by the largest housing, construction and consuming market in U.S. history, said author, demographer and generational marketer Ken Gronbach in his recent keynote address at the Truckload Carriers Association convention in Nashville. Read more…

House committee passes resolution to repeal Biden DOL contractor rule. Congress debated last week a Congressional Review Act (CRA) resolution that seeks to overturn the Department of Labor’s (DOL) final worker classification rule that upended how trucking and other industries classify independent contractors. Read more…

Congress Strengthens Truck Driver Apprenticeship Program. “We thank House and Senate appropriators for their bipartisan work to restore the Safe Driver Apprenticeship Pilot program to its original intent,” said Mark S. Allen, President and CEO of the International Foodservice Distributors Association. Read more…

Electrifying US trucking could cost nearly $1 trillion: study. Fleets and charger operators would have to invest $620 billion on infrastructure, and utilities would have to spend $370 billion to upgrade grid networks for commercial vehicles, per the study. Read more…

Bill seeks to remove cost, redundancy from TWIC, hazmat certification. A bill making its way through the Senate Thursday with bi-partisan support would eliminate redundant fees and background checks for transportation workers. Read more…

ATRI Issues Call for Truck Drivers to Participate in Detention Survey. American Transportation Research Institute today issued a call for truck drivers to provide data on their detention experiences at customer facilities. “Drivers routinely rank detention/delay at customer facilities among their top industry concerns,” said ATRI President Rebecca Brewster. Read more…

April 2024 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinak Law Group LLP.


Torres v. Minnaar, 2024 WL 778383, No. 4:23-CV-486 (E.D. Tex. Feb. 26, 2024). In this personal injury action arising from a collision between tractor-trailer and a passenger vehicle that resulted in the death of the plaintiffs’ decedent, the Texas District Court remanded the case back to Texas state court, finding that the FAAAA did not provide federal subject matter jurisdiction over the action. The plaintiffs filed suit, alleging the commercial driver entered the oncoming lane of travel and struck their son’s vehicle head on, resulting in his death. One of the logistics company defendants, the purported broker, removed the action to federal court on the basis that all claims were preempted under FAAAA and under the Grable doctrine on the basis that certain federal question issues were implicated. The court rejected these claims, finding that, while the FAAAA might afford a preemption defense to the logistics company, it could not create a federal question to provide the federal court with jurisdiction, as the act’s preemptive effects related to pricing, routing, and service of a carrier, broker, or freight forwarder did not constitute “complete preemption.” Because the “complete preemption” requirement was not met, the court could not exercise jurisdiction over the matter. As for the Grable argument, the court found that only a small number of claims premised upon federal law could be maintained under this doctrine, and it found that there was no such claim here, as the FAAAA did not implicate Grable. Thus, the Court remanded the case back to state court for further proceedings.

Trujillo v. Moore Bros., Inc., 2024 U.S. Dist. LEXIS 51355 (D. Colo. 2024). In this lawsuit stemming from a motor vehicle accident, Defendants, an owner-operator/owner of the involved tractor and motor carrier/owner of the involved trailer, moved to dismiss Plaintiff’s claims for (1) negligent hiring, retention, training, monitoring, supervising, and entrustment and (2) negligent selection of an independent contractor. The Plaintiff alleged that a faulty trailer was a proximate cause of the Accident. In the magistrate’s Report and Recommendation, the Court found that Plaintiff failed to allege facts that support a reasonable inference that (1) the involved tractor-trailer driver was incompetent at the time he was hired or (2) the Defendants failed to reasonably investigate when they hired the driver. Critically, for the negligent hiring claim, the court explained that while the operative pleading alleged the driver was incompetent on the date of the Accident, the pleading failed to allege facts supporting that he was incompetent to operate a CMV when hired. Similarly, the court found the pleading failed to allege sufficient facts establishing how the Defendants allegedly failed to investigate the driver before hiring him. As such, the allegations in the Complaint with respect to the negligent hiring claim were found to be nothing more than conclusory allegations, which is insufficient to survive a motion to dismiss under the federal standard. As for the negligent retention claim, the court found such a standalone cause of action was not recognized under Colorado law, separate and distinct from the negligent supervision claim. For the negligent supervision, retention, and training claim, the court stressed the relevant standard under Colorado law requires the plaintiff to allege facts supporting that the employer knew or should have known the employee’s conduct would subject third parties to an unreasonable risk of harm. Viewing the operative pleading under this standard, the court found that the well-pleaded facts permitted the court to reasonably to infer that Defendants knew before the accident that it was the driver’s usual practice to do cursory vehicle inspections on equipment, or his pre-trip inspection of the trailer on the morning of the accident was cursory.  As such, these claims survived the motion to dismiss. For the same reasons, the negligent entrustment cause of action survived Defendants’ motion to dismiss. Last, the Court held that in Colorado, claims for the negligent selection of contractors are treated as analogous to the negligent hiring claim; as such, the Magistrate recommended dismissal of the negligent selection of an independent contractor cause of action for the same reasons as the negligent hiring claim. 

Gold v. Carter, 2024 U.S. Dist. LEXIS 43968 (W.D. Pa. 2024). This lawsuit stems from a motor vehicle accident between a tractor trailer and four vehicles stopped in traffic from another accident. Immediately prior to the accident at hand, a nearby CMV driver warned the defendant driver, who was operating the involved tractor trailer, via CB radio to reduce his speed for an upcoming accident. Plaintiffs asserted the Defendant driver violated FMCSA regulations as he was traveling at an excessive rate of speed, despite the radio warning, and much faster than was prudent for the heavy rainfall. Plaintiffs also allege that Defendant Motor Carrier knew or had reason to know of the driver’s incompetency or inexperience. Defendants moved to dismiss the claims for punitive damages and strike certain allegations that reference “recklessness,” “intentional conduct,” “wanton conduct” and “other averments which would form the basis for punitive damages.” The District Court for the Western District of Pennsylvania explained that a “punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subject appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Further, a principal may be held vicariously liable for punitive damages if the actions of its agent were “clearly outrageous, were committed during and within the scope of the agent’s duties and were done with the intent to further the principal’s interests.” Under this standard, the Court found that Plaintiffs’ allegations plausibly support a remedy of punitive damages based on the following: (1) the Driver operating the truck at a high rate of speed given the location and circumstances; (2) the Driver violated FMCSA regulations; and (3) the Driver was warned by a fellow driver to reduce speed. Further, Defendants failed to show how they suffered harm from the references to averments supporting punitive damages claims. As such the Court denied both the Motion to Dismiss and Motion to Strike.

Carter v. C&S Canopy, Inc., 2024 Miss. App. LEXIS 95 (2024). In this appeal of a trial court’s order granting summary judgment to the motor carrier and its driver, the Mississippi Court of Appeals upheld the summary judgment. At or around 3:30 p.m., the driver began to experience engine trouble with the CMV “running sluggish” before losing power. The driver pulled the inoperable CMV onto the shoulder of the interstate and placed out three warning triangles at intervals leading up to the disabled truck. The driver took a photograph of the triangles leading up to the vehicle and sent that to the motor carrier before departing for a nearby hotel. The following morning, around 1:30 a.m., another tractor-trailer approached the disabled vehicle and for reasons unknown, veered off the roadway and sideswiped the parked CMV. The plaintiff was asleep in the sleeper berth at the time of the collision and allegedly sustained injuries. Thereafter, the plaintiff filed suit against the motor carrier and driver. When the motor carrier and driver moved for summary judgment, the plaintiff opposed the motion by submitting an affidavit from Adam Grill, of the Legacy Corporation. The affidavit made various allegations of negligence by the driver, including: (1) the driver violated the Federal Motor Carrier Safety Regulations, state statute and industry standards when he parked and left unattended the truck on the paved portion of the highway; (2) the driver should have moved the truck to the nearest place where repairs could safely be effected; and (3) the driver incorrectly placed the warning devices behind the truck. As for the claims against the motor carrier, the affidavit alleged: (1) it violated state and federal law and industry standards by allowing the driver to park and leave unattended the truck on the paved portion of the highway; and (2) that the motor carrier failed to properly train or instruct the driver regarding the placement of the reflective triangles. The trial court granted summary judgment to the Defendants, finding there was no genuine issue of material fact, no evidence that the Defendants breached any duty, and no evidence that any alleged breach proximately caused the crash. The circuit court specifically found that dashcam video from the second tractor-trailer showed the triangle warning devices were in place and there was nothing in the record, including the affidavit, establishing how the placement of the triangles failed to comply with any applicable requirements. Further, the trial noted the analytical gap between any purported violation with respect to the placement of the triangles and establishing proximate cause of the Accident. Last, the trial court struck Grill’s affidavit in full, finding he did not address causation, his “opinions were not scientifically reliable,” and his opinions were not “helpful” to the extent he merely interpreted the video of the crash, but also noted that even without striking the affidavit there was no genuine issue of material fact. On appeal, plaintiffs raised additional grounds why the trial court allegedly should not have granted summary judgment, including that the driver negligently continued to drive a “sluggish” truck down the interstate rather than exiting; that the motor carrier negligently failed to have the truck towed sooner; that the driver violated Federal Motor Carrier Safety Regulations by placing emergency reflective triangles at incorrect distances behind his truck; that the driver broke the law by parking the disabled truck on the shoulder of the interstate; that the motor carrier lacked authority to operate as a “for-hire motor carrier”; that the motor carrier failed to train the driver; and that these various acts or omissions caused the Accident. The appellate court addressed each in turn, ultimately finding none of the additional arguments were sufficient to avoid summary judgment. The court found the record provided no evidence of how long the truck was “sluggish” before it became operable or that the driver failed to take advantage of an earlier opportunity to exit the interstate. Similarly, the court found that the record contained no evidence that the truck could have been towed sooner or that the motor carrier was somehow negligent in its attempts to get the truck towed sooner. As for the claims about improper placement of triangles, the court noted there was no evidence in the record to support the alleged distance between the warning triangle(s) and the vehicle or the distance alleged by plaintiffs. Further, the court noted that the plaintiffs’ alleged required distance misstated the applicable regulation because the involved roadway was a “divided highway” for which there were different standards. Further, even assuming arguendo any alleged negligent placement of the triangles, the court found any such failure was not the proximate cause of the Accident insofar as the driver of the second tractor-trailer, in which the plaintiff was an occupant, left his lane of travel to cause the Accident. The court applied a “reasonable and workable” interpretation of the state statute prohibiting operators from leaving vehicles on the paved part of a roadway, finding that a strict application would be unworkable and further that the evidence of the record established that the driver moved the disabled CMV as far off the roadway as was practicable under the circumstances. It further noted an exception in the statute for a disabled vehicle.  As for the argument that the driver and motor carrier violated the law by not being a registered “for hire motor carrier” the court noted the driver held a valid CMV license and the motor carrier was licensed with FMCSA as a private carrier. Since the record evidence established that the driver was in the process of installing awnings for the motor carrier company at the time of the Accident, there was no support that a for-hire license/regulation was required. Further, the court noted the lack of a causal link between any alleged failure to have “for hire” licensure and the Accident. For the same reasons, the court found there was no support of negligent training of the driver. As such, the appellate court affirmed the trial court’s grant of summary judgment to the motor carrier and driver on all counts.    

Oakley v. A.L. Logistics, LLC, 2024 U.S. Dist. LEXIS 45112 (M.D. Ala. 2024). In this lawsuit involving an accident where the decedent drifted into a broken-down tractor trailer parked inches over the fog-line on the shoulder, the decedent’s estate sued under the Alabama Wrongful Death Act asserting negligence and wantonness. Defendant moved for summary judgment, and the District Court for the Middle District of Alabama denied summary judgment on the negligence and wantonness claims, finding that genuine issues of material fact existed concerning foreseeability and proximate cause of the crash. The evidence of the record established that the driver of the tractor-trailer was operating on I-65 when he experienced mechanical issues, with the CMV ultimately breaking down. He parked the disabled CMV on the shoulder, but within inches of the “fog line” and on the rumble strip. The driver and the motor carrier decided to have the CMV repaired on the side of the roadway, rather than having it towed to another location for repairs. Approximately twelve hours later, around 2:15 a.m., plaintiff’s decedent began to veer off the roadway for unknown reasons before ultimately crossing the fog line and striking the rear of the disabled tractor trailer. Evidence of the record established there were no emergency or warning triangles placed behind the rig nor were the disabled tractor-trailers lights illuminated at the time of the Accident. Law enforcement that investigated the Accident determined that the CMV was legally parked but should have been towed to the nearest exit. Plaintiff brought suit against the driver and employer motor carrier alleging negligence and wantonness against both defendants. The defendants moved for summary judgment on all claims, contending that negligence by the plaintiff’s decedent was the proximate and intervening cause of the Accident. The court found that the motor carrier was entitled to summary judgment for the negligence/wantonness claims related to inspection, hiring, training, supervision, and retention, noting the lack of evidence in the record to support such claims. As for the remaining negligence and wantonness claims centered upon the decision to leave the disabled CMV on the roadway overnight, within inches of the lane of travel, and not having it towed, the court found the evidence created a genuine issue of material fact. Noting that proximate and intervening cause is most often an issue of fact, the court found the same held under the facts of the Accident. It noted there was sufficient evidence, if believed by a jury, to establish the driver and motor carrier knew or should have known of the foreseeable risk of injury to the motoring public in leaving the disabled CMV inches from the roadway without any illuminating lights or hazard triangles. The court found it was up to a jury to determine whether the plaintiff’s decedent’s actions were a sufficient intervening cause to overcome potential negligence by the CMV driver and motor carrier. Interestingly, the court’s decision does not address the FMCSR regulations regarding hazard triangles, but it did find the fact that the CMV was legally parked to be insufficient, standing alone, to entitle the driver and motor carrier to summary judgment in light of the other facts of the record. With respect to the heightened standard for wantonness under Alabama law, the court found there was sufficient evidence from which a jury could find that the driver made a “conscious and deliberate decision” to park the CMV where he did, without illuminating lights or hazards, and that the motor carrier’s decision against having the CMV towed, exposed other drivers to an unnecessary and hazardous risk. As such, the court denied summary judgment to defendants on the negligence and wantonness claims directly related to these actions. 


Milne v. Move Freight Trucking, 2024 WL 762373, No. 7:23-cv-432 (W.D. Va. Feb. 20, 2024) and Crawford v Move Freight Trucking, LLC, 2024 WL 762377, No 7:23-cv-433 (W.D. Va. Feb. 20, 2024). In these consolidated cases arising from the same accident on I-81 in Virginia, the District Court granted motions to dismiss claims for negligent entrustment, hiring, and retention; denied motions to dismiss by a shipper and broker on the ground of FAAAA preemption, among other defenses, and ordered jurisdictional discovery to determine whether it had jurisdiction over the shipper and broker. The accident occurred after the driver of a passenger vehicle allegedly fell asleep and struck a tractor-trailer parked on the shoulder of the interstate. The estate of the deceased passenger and the special conservator of another passenger in the passenger vehicle filed suit against the driver of the passenger vehicle, the driver of the tractor-trailer, the carrier, the purported broker, and the purported shipper, alleging the foregoing causes of action. The Defendants moved to dismiss on a number of grounds. The court granted the motor carrier’s motion to dismiss the plaintiffs’ negligent entrustment, hiring, and retention claims, finding that there were no allegations in the complaints to support any assertion that the carrier should have known its driver posed an unreasonable risk of harm to others. As for the negligent training and supervision claims, the court noted that Virginia did not recognize such claims. The shipper and broker also moved to dismiss all claims alleged against them, arguing that they were not subject to the court’s personal jurisdiction, that the complaints failed to state claims for negligence in the hiring of the carrier or its driver, and that all claims were preempted under FAAAA. As for the personal jurisdiction argument, the court noted that the plaintiffs alleged that the shipper and broker employed the driver and controlled his activities, and it allowed the parties to pursue discovery on the issue before reaching a determination. As for the argument that they were only the shipper and broker and that they could not be liable for any negligent hiring, retention, or respondeat superior claims, the court found that the plaintiffs had plausibly alleged such factual allegations and alleged the claims to survive for the time being. As for the FAAAA preemption arguments, the court outlined the split in authority from the Ninth Circuit’s holding in Miller v C.H. Robinson and the Seventh Circuit’s holding in Ye v. GlobalTranz Enterprises but found that the Fourth Circuit had not opined on the issue. However, the court noted that district courts in the Fourth Circuit had rejected FAAAA preemption, pointing to Mann v. C.H. Robinson, which found that preemption did not apply. Moreover, the court determined that, even if preemption applied, so too did the safety exception to the statute, reasoning “[s]tate law recognizes these tort claims in part to incentivize safe practices in the trucking industry. To preempt such claims would undercut an important tool in the states’ efforts to maintain reasonably safe roadways, a practice expressly shielded by the safety exclusion.”  Finally, the court also declined to dismiss the plaintiffs’ punitive damages claims against the shipper and broker at this early stage in the litigation.

Meek v. Toor, 2024 WL 943931, No. 2:21-cv-0324 (E.D. Tex. Mar. 5, 2024). In this broker liability action, the federal magistrate judge denied a broker’s motion for summary judgment, rejecting its argument that the claims were preempted under the FAAAA. The case arose from a motor vehicle accident after a carrier’s driver was involved in a collision with the plaintiff. The plaintiff also sued the broker, arguing it was liable under a theory of negligent hiring of the carrier. The broker argued the plaintiff’s claim was preempted under the FAAAA. However, the court was not convinced, citing to a number of cases which held preemption did not apply to negligent hiring claims, which “bear only a tenuous relationship to ‘services’ provided by brokers…” In the court’s view, it was not convinced that “hiring and oversight of transportation companies is so central to the services of freight brokers that negligent hiring claims would significantly impact the services of a freight broker.”  Moreover, the court found that, even if the claim did fall under the purview of the FAAAA’s preemptive effect, the safety exception would apply, finding “negligent hiring is a tort doctrine concerning the safety of the public, and that the safety regulatory exception is to be read broadly[.]”  Notably, the court’s decision contained no discussion of Miller or Ye. The court also rejected the broker’s motion for summary judgment as to the plaintiff’s negligence-based claims, finding that the evidence could support liability against the broker.


K&M Handling, LLC v. Seaboard Marina, Ltd., Inc., 2024 WL 985072, No. 23-cv-23180 (S.D. Fla. Mar. 7, 2024). In this cargo claim brought by a forwarding agent against an ocean carrier, the court denied the ocean carrier’s motion for a judgment on the pleadings and instead allowed the forwarding agent’s COGSA and breach of contract claims to proceed. The claims arose after a non-party, Orange Flowers, had contracted with the carrier to deliver two shipments of flowers from Colombia to Miami. The flowers were to be stored in refrigerated containers and kept at a certain temperature during the shipment. The forwarding agent alleged that the carrier failed to keep the flowers in the refrigerated containers, thus rendering them unusable, and it brought claims for breach of contract and under COGSA. The forwarding agent alleged that Orange Flowers had transferred its right to collect for the loss of the flowers and cited to a transfer of rights which referenced applicable bills of lading for the shipments. The ocean carrier sought dismissal of the claims, arguing the forwarding agent lacked standing to assert the claims as it was not the real party in interest. The carrier pointed to the forwarding agent not being included on the bills of lading to support its argument, but the forwarding agent pointed to the transfer of rights as allowing it to be the real party in interest. The court agreed with the forwarding agent, finding that the ocean carrier had failed to cite to any authority invalidating the assignment of the claim. The court noted that COGSA applied to the scenario but that it was silent as to whether the causes of action were assignable. However, because there was no authority prohibiting the assignment, the Court allowed the claims to proceed, also finding that the forwarding agent had standing to bring the suit.

KG Dongbu USA, Inc. v. Panobulk Logistics, Inc., 2024 WL 1141217, No. 23-27 C/W 23-6912 (E.D. La. Mar. 15, 2024). In this cargo claim involving alleged damage to steel coils, the court granted, in part, and denied, in part, numerous motions related to the enforceability of a limitation of liability provision in a shipping agreement. KG Dongbu shipped 140 steel coils from Korea to New Orleans, with SK Shipping hired as the ocean carrier to transport the coils. KG Dongbu also hired Panobulk as an intermediary forwarder to transport the coils from New Orleans to Illinois and Ohio and Cooper Consolidated via a Barge Transportation Agreement (“BTA”) to transport the coils by barge from New Orleans to Illinois. The specific barge was provided by Marquette Transportation to Cooper under a separate agreement. Panobulk and SK Shipping hired Coastal Cargo to offload the coils from the ocean vessel onto the barge. KG Dongbu then brought suit, alleging that Coastal pierced the hold of the barge while loading the coils, allowing river water to enter the hold and damage the coils, which were rejected by the buyer. KG Dongbu and its subrogated insurer then brought claims for breach of maritime contract, warranty, and bailment against Panobulk. Cooper, Panobulk, Coastal, and Marquette filed a number of counter and crossclaims, including among them arguments for contractual indemnity and raising a number defenses, including asserting that the package limitation clause of the BTA applied. The Cooper BTA provision provided that cargo loss was to be limited to $500 per unit or package and that the carrier would have “no liability for loss or damage to cargo , or for direct or indirect expenses or claims arising from or related to such loss or damage, until proper loading is complete, and the barge has been removed from loading facility by Carrier or its designated carrier.  The BTA continued, providing that thereafter, Carrier shall only be liable to Shipper for loss or damage to the cargo which occurs during the voyage and in no event shall Carrier be liable for loss or damage to the cargo caused, in whole or in part, by: shrinkage, expansion, deterioration, or other changes in condition due to temperature changes, atmospheric humidity, or other natural causes; or navigational delays; or any vice or defect in the cargo.  The BTA set forth that in the event of such loss or damage for which Carrier is liable, Carrier shall pay for lost cargo based on actual value at time of loss, and damaged cargo based on actual loss in value measured at time such damage occurred, up to a maximum limit of $500.00 per ton on bulk cargo or $500 per unit or package subjected to count….” Panobulk and KG Dongbu argued against BTA on the ground that they were not timely notified of the damage, that it was only between Cooper and Panobulk, that it was ambiguous, and that it applied only in instances of common carriage, among other arguments. Cooper argued the provisions were unambiguous, that they were enforceable, that Panobulk was not entitled to declare a higher value in a private contract pursuant to COGSA, and that Plaintiffs’ and Panobulk’s claims for unseaworthiness and negligence were not relevant to whether the limitation applied. Marquette joined in the argument for the limitation, arguing that the provision was a Himalaya Clause which extended to downstream parties. The court found that the limitation was appliable to Panobulk, as the contract was one for private carriage as opposed to common carriage. Moreover, because the BTA covered the inland shipping of the coils, COGSA did not apply but did not limit the applicability of the provision. As for Panobulk’s argument that it was not given an opportunity to negotiate the value of the limitation, the court disagreed, finding that the parties had included the provision in previous agreements. The court also disagreed that the provision was ambiguous and that Cooper’s alleged negligence prevented the enforceability of the agreement. Thus, the limitation was enforceable as to Panobulk. However, the court disagreed that it was enforceable as to the Plaintiffs, finding that such an extension to downstream parties was limited in the context of common carriage, not private carriage. The court also found that Marquette was not entitled to enforce the limitation for the same reason. Moreover, Marquette was not entitled to enforce it as against Panobulk, as it was not included as a party to the provision. The court reserved any further rulings, as determinations as to liability for the damage to the cargo had not yet been made.

Certain Underwriters v. Guyana Nat’l Indus. Co., Inc., 2024 WL 1174082, No. 23-cv-20172 (S.D. Fla. Mar. 18, 2024). In this claim involving cargo that was destroyed in a fire, the Court granted the defendant carriers’ motion to dismiss. The carriers had delivered the goods from Florida to a warehousing facility in Guyana in good condition. While at the warehousing facility, the goods were destroyed in a fire. The consignee, as subrogee of its insurer, brought claims against the warehousing facility, the carriers, and other related entities for negligence, breach of contract and statutory duty under the Pomerene Act, Breach of Bailment, and under COGSA. The defendants moved to dismiss, arguing that the Plaintiff had failed to state a claim under COGSA or the Pomerene Act, that it failed to state claims for common law negligence or breach of bailment, and on the ground that the court lacked personal jurisdiction over several of the defendants. Plaintiff argued that it had alleged a claim under COGSA because the goods were not delivered in good condition. The defendants argued COGSA did not apply because the loss did not happen until after the cargo was discharged from the vessel. The court agreed, finding that the agreement between the parties did not extend to the time that the shipment was stored at the warehousing facility and that, even if the bills of lading had done so, the plaintiff had failed to allege how the carrier defendants would be liable. As for the claim under the Pomerene Act, the court found that the plaintiff had cited it improperly in the complaint and that it should be dismissed and that, even if it had properly alleged the claim, it had failed to allege that the cargo was delivered to the wrong person, and, thus, the claim would fail. The court then declined to exercise jurisdiction over the remaining state law claims.

Zierke v. Am. Van Lines, Inc., 2024 WL 982587, No. 23-cv-00475 (D. Colo. Feb. 16, 2024). In this claim alleging certain failures in the delivery of the plaintiff’s goods, the federal magistrate judge recommended granting the defendants’ motion to dismiss on the basis of Carmack preemption. Plaintiff hired AVL to transport her belongings from California to Colorado. AVL then sent an affiliated company, Next Stop, to transport the goods. Plaintiff alleged Next Stop doubled the price and failed to timely deliver the goods. Plaintiff then filed suit against both entities, alleging a violation of the Colorado Consumer Protection Act (“CCPA”), conspiracy to violate the Colorado Organized Crime Control Act (“COCCA”), fraudulent misrepresentation in inducement to contract, breach of contract, Unjust Enrichment, and breach of the implied covenant of good faith and fair dealing. The defendants moved to dismiss, arguing that all the claims were preempted under the Carmack Amendment. Plaintiff alleged that it was not entirely clear whether AVL was operating as a carrier or a broker, but the court rejected this argument, finding that the Plaintiff had plainly asserted that AVL was acting as a carrier. Finally, the court cited a number of cases which held that each of the foregoing claims were preempted under the Carmack Amendment. Therefore, the court dismissed all claims.

Cell Deal Inc. v. FedEx Freight, Inc., 2024 WL 884846, No. 21-CV-788 (E.D.N.Y. Feb. 28, 2024). In this claim arising under the Carmack Amendment, the federal magistrate judge recommended that the motor carrier’s motion for summary judgment be denied.  Company A hired a broker to arrange for the carrier to pick up a load of cell phones for delivery to Company A’s facility. The broker then hired the carrier, which picked up one pallet of phones, which were signed for and delivered in apparent good condition. However, a claim was later filed against the carrier, alleging the loss of four boxes of phones. The disputed shipment was the subject of an agreement that referenced the carrier’s tariff, which limited the carrier’s liability to 50 cents per pound per package or $10,000 per incident, whichever is lower. Following the incident, Company A sued the carrier under a theory of negligence. The carrier removed the action to federal court and argued for preemption under the Carmack Amendment. The carrier then moved for summary judgment, arguing that its maximum exposure was $153 pursuant to the terms of the bill of lading. Company A cross-moved for summary judgment, arguing for over $100,000 in damages under the Carmack Amendment. The carrier alleged that Company A failed to allege a prima facie showing under the Carmack because the amount of damages was contested and because it offered only inadmissible evidence as to the shipment’s condition before and after delivery. In viewing the evidentiary record, the court determined that the proper value of the claim could be as low as $12,796.50, the original amount of the declared loss by the shipper, or $115,866, the alleged cost of the lost cellphones. Thus, the court denied Company A’s motion for summary judgment. As for the carrier’s motion arguing for the limitation of liability, the court analyzed the claim under Carmack and looked to the agreement between the carrier and the broker, which incorporated the carrier’s tariff, and the bill of lading. In looking at the agreement, the court found that it might not have provided sufficient notice to the broker of the limitation of liability provision contained in the tariff, and that the carrier could not attempt to enforce the limitation of liability provision on this basis. The carrier also argued that the tariff’s limitation would have been communicated to Company A through the bill of lading. While the court acknowledged this was a “closer call,” but found that there was nothing to support that the limitation of liability provision was communicated directly to Company A, only to the broker. Thus, because the carrier did not establish that the agreement to limit its liability was “the result of a fair, open, just, and reasonable agreement” with Company A, the court declined to grant summary judgment to the carrier.

Collicutt Energy Servs. Inc. v. Trinity Logistics, Inc., 2024 WL 920556, No. 2:22-CV-00364 (E.D. Cal. Feb. 29, 2024). In this claim arising from alleged damage to industrial equipment, the court granted, in part, and denied, in part, a logistics company’s motion for summary judgment. The shipper contracted with a logistics company to transport two generators and related equipment from Wisconsin to California. The logistics company then contracted with two carriers to transport the generators. However, during transit, the drivers for the two carriers drove under overpasses that were too low, causing severe damage to the generators. The shipper purchased replacement generators and sought reimbursement from the logistics company, which disclaimed liability and directed the shipper to the carriers. The shipper sued all of the entities under Carmack and, alternatively, for breach of contract and negligence against the logistics company. The logistics company moved for summary judgment, arguing that it was a freight broker and that Carmack did not apply, that there was no evidence it was negligent, and that it did not breach its contract with the shipper. The shipper argued the logistics company held itself out as a carrier during their communications, and the court agreed that the communications created a genuine issue of material fact as to whether the company held itself out as a carrier. However, the court agreed with the logistics company as to the shipper’s negligence claim, finding that the shipper had failed to establish a legal duty in tort to insure the subject loads and confirm their safe delivery. As for the breach of contract claim, the court found that the previously referenced communications between the shipper and logistics company created a genuine issue of material fact with respect to the logistics company’s obligations under the contract. Thus, it denied the company’s motion for summary judgment as to the breach of contract claim.

Baldwin v. Am. Van Lines, Inc., 2024 WL 921396, No. 3:23cv474 (E.D. Va. Mar. 4, 2024). In this action involving claims for damage to household goods, the court dismissed certain claims against a carrier and remanded others to state court for further proceedings. The plaintiffs hired the HHG carrier to move their belongings from Virginia to Georgia. A representative of the company indicated that its workers would disconnect all appliances during the move. The plaintiffs were set to purchase their new residence in Georgia, contingent upon the sale of their residence in Virginia. When the HHG carrier’s workers arrived to begin loading the plaintiffs’ goods, an employee “broke the washing machine water supply pipes,” flooding the house for over an hour and causing the ceiling over the garage to collapse. After the flooding, the plaintiffs requested the moving company transport the goods to a restoration company, but the company’s employee refused the request, insisting that he had to drive the van to North Carolina for the evening and deliver property for a different move, despite the agreement that the plaintiffs’ move was to be the exclusive move. The moving company also allegedly refused to allow the plaintiffs to review and sign the bill of lading. The plaintiffs later recovered a portion of their property damage from their insurer and later sued the moving company, alleging claims for conversion, a violation of the Virginia Consumer Protection Act, breach of contract, fraud, and for punitive damages, seeking a minimum of $41,000. The moving company filed a motion to dismiss, arguing that all claims were preempted under Carmack. The court rejected this argument, finding that the conversion claim was not preempted, as its assertion of $1,500 in damages would not fall under Carmack’s $10,000 threshold. As for the other claims, the court found that each of them were preempted under Carmack, as they all related to the services the company provided as a carrier. The court also found that the plaintiffs had failed to allege support for a punitive damages claim. Thus, the court mostly granted the motion to dismiss and remanded the $1,500 conversion claim to state court.

Total Quality Logistics, LLC v. All Pro Logistics, LLC, 2024 WL 911933, Nos. CA2022-11-078 and CA2022-12-082 (Ohio Ct. App. Mar. 4, 2024). In this action filed by a broker against a motor carrier, the Ohio Court of Appeals affirmed, in part, and reversed, in part, a trial court’s grant of summary judgment and motion to dismiss. The broker filed suit after it arranged for the carrier to transport a load of blueberries from New Jersey to Michigan. The carrier picked up the blueberries, signed the bill of lading, and delivered them to a grocery facility in Michigan. However, the blueberries were rejected because they were frozen and in damaged condition. The broker then reimbursed its client and directed the carrier to transport the blueberries to a third party for potential salvage. The broker later filed suit against the carrier, alleging breach of contract claims. It also received an assignment from its customer and asserted additional claims, including under the Carmack Amendment. The broker obtained a default judgment against the carrier, but the carrier was later allowed out of default. The broker later obtained summary judgment on its Carmack claim and on the carrier’s counterclaim for recoupment of the funds seized by the previous garnishment. The trial court denied summary judgment as to the broker’s other claims, and the broker appealed. In reviewing the appeal, the appellate court noted that it was unclear why the trial court determined the broker’s claims were so limited, but it found that a broker carrier agreement superseded the common law right to indemnification from a carrier for monies that it paid a customer for cargo loss. Given that the broker carrier agreement here contained multiple provisions as to indemnification and financial responsibility for cargo loss, the court reversed the denial of summary judgment on those claims. In considering the carrier’s cross-appeal of the trial court’s grant of summary judgment in favor of the broker as to the Carmack claim, the court found that the lower court correctly found that the broker had asserted a prima facie case under Carmack following the assignment by its customer.


Ocean Reef Charters, LLC v. Travelers Prop. Cas. Co. of Am., 2024 WL 776026, No. 23-CV-81222 (S.D. Fla. Feb. 26, 2024). In this bad faith action, a Florida federal magistrate judge recommended that punitive damages claim against an insurer over its alleged failure to properly investigate a damaged yacht claim should be dismissed. The court ruled that the allegations did not support the higher standard needed to show malicious behavior or reckless disregard by the insurance company. In so ruling, the court found that the insured’s claim excluded the equally plausible conclusion that the insurer had acted negligently rather than with the higher mens rea needed for punitive damages. The Eleventh Circuit had previously upheld a more than $2 million award to the insured stemming from an insurance claim after Hurricane Irma damaged the yacht and caused it to sink. In ruling that punitive damages must be proven by clear and convincing evidence, the court said that allegations of “similar bad faith conduct” is a legal conclusion, not a fact, and that the allegation that an insurer failed to properly investigate a claim, standing alone, does not necessarily imply willful, wanton, or malicious behavior, or reckless disregard for the rights of its insureds. Moreover, the court found that two other instances of conduct are not sufficient to plausibly allege a general business practice.

Markuson v. State Farm Mut. Auto Ins. Co., 2024 WL 817545, No. 2D21-2443 (Fla. Dist. Ct. App. Feb. 28, 2024). A Florida appeals court clarified a prior ruling reviving bad faith claims against an insurer for rejecting an offer to settle a car crash injury suit that led to a $3 million verdict. The dispute stemmed from a 2006 car crash involving the plaintiff and a permissive driver of the insured, who was driving a vehicle owned by his father. The plaintiff sued the father and son (“Tort Defendants”) for damages for his injuries caused by the crash. The Tort Defendants’ insurance policy with State Farm had a $300,000 limit against liability for bodily injuries sustained in a crash, and the insurer made a settlement offer that was rejected by the plaintiff, who later made two settlement counteroffers that would have required the insurer to tender the $300,000 policy limits, authorize a consent judgment of $1.9 million, and authorize the Tort Defendants to assign their rights in any claims against their insurance agent. The insurer rejected those proposals, and, at trial, a jury returned a verdict of more than $3 million for the plaintiff. The plaintiff and the Tort Defendants sued the insurer, claiming the insurer acted in bad faith when it failed to settle the personal injury action. The insurer asked for summary judgment, arguing that it did not act in bad faith because the proposals for settlement included consent judgments above the policy limits and it owed no duty to the insured(s) to enter into such a settlement. The court found that the insurer could still have acted in bad faith in handling the settlement offer even if it had no obligation to accept it. The appellate court ruled that while the trial court correctly determined that the insurer did not have a duty to enter a consent judgment in excess of the policy limits, and therefore could not have committed bad faith in rejecting the settlement counteroffers, the trial court nevertheless should not have granted the insurer summary judgment on the bad faith claims because the suit alleged other theories of bad faith as well.  As such, the appeals court reversed the trial court’s summary judgment and remanded the case for consideration of the remaining possible theories of bad faith. In expounding on the decision, the appeals court said its decision is limited to the theory of bad faith under a 2015 Eleventh Circuit decision that held an insurer has no duty under Florida law to enter a consent judgment that exceeds the limits of its policy. However, the insurer could still face other types of bad faith claims, including theories governed by a 1980 Florida Supreme Court ruling, which says an insurer “has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.”


No cases of note to report this month.

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