Bits & Pieces

CAB Bits & Pieces July 2024

Hello and Happy Summer Everyone! 

Enjoy summer while it’s here. Hopefully you got a nice reset and recharge over the Independence Day holiday! 

Busy times in your firms and here in our space too! You may have heard about our new company Fusable that CAB, Price Digest, CCJ and other sister brands are now a part of through the strategic separation Randall Reilly did earlier this year. This transition includes responsibility adjustments on our end. Chad is leading our Underwriting segment and Pam is point on the motor carrier portfolio. Our team you know are still here and we’ve added to it again.  

We are thrilled to announce that Jasmine Slaughter will be leading our Insurance Brokerage portfolio as Senior Director. With extensive experience in both consulting and the insurance industries, Jasmine brings a wealth of knowledge and expertise to our team. Her strategic insights are set to drive innovation for our Agents and Brokers.  

Learn more about Jasmine and connect with her here: Linkedin.

CAB Webinars

Like many of you, summer is busy with the holiday and time off. We will be taking the month of July off from our live training sessions. Keep in mind, all our great training content is still available via our webinars page.  

CAB webinars interface

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks

The FMCSA’s transition from motor carrier login utilizing DOT # & PIN to Login.gov has been than a less smooth process. The FMCSA’s modernization listening session at the end of May included numerous attendees referencing the struggle with this new procedure. Last month’s Bits & Pieces included the login screens from the CAB platform to Login.gov’s site for the motor carrier credential connection to CAB.

This month let’s cover a related frequently asked question. Perhaps this will help your motor carrier(s) with this government program. In FMCSA’s terminology there are “Company Officer(s)” listed on the MCS-150 shown in the Company Information section under Officials. Specially, these can be seen in the FMCSA Portal Home section in the middle of the screen in the Company Information section.  

FMCSA company information screenshot

Separately, the fleet’s FMCSA Portal Official (portal user approver) is listed under Account Management section Account Request as shown here. If there isn’t a company official named you can identify one here. If you need to change it, use this “Submit a Challenge” option. In order for CAB to be connected to a fleet’s FMCSA Portal, the motor carrier must grant CAB access.

Note: Pam Jones had been an FMCSA Portal user for years. While the FMCSA Portal instructions mention and allow an alternate company official to be identified, Pam has never had success in fleets utilizing the alternate company official for user approval.

FMCSA account management screenshot
FMCSA account portal screenshot


New ATRI Research Identifies Strategies for Mitigating Women Truck Driver Challenges The American Transportation Research Institute (ATRI) released a study to develop approaches for increasing the number of women truck drivers. It highlights six major challenges, including industry perception, training, parking, and harassment. Input from thousands of drivers and carriers was used to develop strategies for addressing these issues. Read more…

ATRI, American Transportation Research Institute, always a great resource to the industry, recently released another report on annual operational costs report and their work delving into female driver challenges, now available for download direct from their website. Read More…

Commercial Auto Insurance Market Outlook for 2024 The commercial auto insurance market is facing ongoing challenges with underwriting losses, increasing rates, and declining profitability. Factors such as driver shortages, nuclear verdicts, inflation, and distracted driving are contributing to these issues. Rate hikes averaged 8% in early 2023 and are expected to continue rising into 2024, particularly for large fleets or those with poor loss history. Read more…

FMCSA Approves 25% Fee Increase for Carriers, Brokers The Federal Motor Carrier Safety Administration (FMCSA) has approved a 25% increase in Unified Carrier Registration (UCR) fees for motor carriers, brokers, and leasing companies starting in 2025. This adjustment, the first significant increase since 2010, raises fees by $9 to $9,000 depending on fleet size. Read more…

Is Cyber Security Insurance Trucking’s Next Big Premium? Candace Marley, an Iowa owner-operator, sees cybersecurity as a low priority despite the increasing digitalization of trucks. However, NMFTA COO Joe Ohr highlights the benefits of cybersecurity insurance, especially for small fleets, citing the risk of office-based hacks over in-cab vulnerabilities. Read more…

Congress Eyes Creation of Anti-Fraud/Cargo Theft Task Force The U.S. House Appropriations Committee approved a funding bill for the Department of Homeland Security, including $2 million for a Supply Chain Fraud and Theft Task Force (SCFTTF). This task force aims to combat rising supply chain fraud and cargo theft in interstate commerce. Read more…

Chicago-Area Freight Thief Steals $9.5M in Goods: Courts Aivaras Zigmantas, 39, a Lithuanian national, has been indicted for stealing over $9.5 million in goods using fake names, carrier entities, and broker entities. His scheme involved diverting freight shipments, including liquor and copper, through false representations and fake identities. Read more…

ATA Tonnage Rises in May The American Trucking Associations reported a 1.5% year-over-year increase in the For-Hire Truck Tonnage Index for May, reaching 115.9. This marks the first year-over-year gain since February 2023 and a 3.6% rise from April. While this increase hints at a potential recovery in the truck freight market, experts urge caution, noting mixed economic indicators and ongoing challenges. Read more…

Vinn White Named FMCSA Deputy Administrator Vinn White has been appointed as the Deputy Administrator of the Federal Motor Carrier Safety Administration (FMCSA) and will also serve as the acting administrator. White replaces former Administrator Robin Hutchinson and brings extensive experience in transportation policy. He has been a member of the Biden-Harris Administration since 2021, working on emerging transportation technologies. Read more…

How New Jersey State Government Created Chaos with New $1.5 Million Liability Insurance Requirement New Jersey’s new law requires commercial vehicles to carry $1.5 million in liability insurance, surpassing federal minimums. This affects all vehicles registered in the state, including those under the International Registration Plan (IRP). Read more…

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


Rodriguez v. Vaniperen, 2024 U.S. Dist. LEXIS 101901, 2024 WL 2831837, C.A. No. 4:23-CV-4006-KES (D.S.D. June 4, 2024).  This case arises out of a motor vehicle accident near Brookings, South Dakota, when defendant CMV driver crashed into the rear of plaintiff’s decedent’s car, which was stationary in the right most lane of the highway.  Based on evidence gathered from calls Kelly made to AAA prior to the collision, plaintiff’s decedent ran out of gas while driving on the interstate in a rental vehicle and was not able to make it to the shoulder of the highway, and instead stopped in the lane of travel. As she was stopped on the interstate, she was struck by the CMV, whose driver, in the moments before the crash had been using his phone to make online purchases and scroll TikTok. Defendants moved for summary judgment on the grounds that plaintiff’s decedent was contributorily negligent and assumed the risk, and thus barred from recovery, and alternately moved for summary judgment on plaintiff’s survival claim and partial summary judgment as to plaintiff’s punitive damages claim. The court held that there was a genuine issue of material fact as to whether plaintiff’s decedent was contributorily negligent and assumed the risk of accident, and denied Defendants’ motion for summary judgment on those issues.

Plaintiff also argued that the court should delay its summary judgment determination as to plaintiff’s survival claim, and filed an affidavit pursuant to Fed. R. Civ. P. 56(d) to show that more time was necessary in discovery to obtain evidence in support of its survival claim. However, the court ruled that plaintiff’s Fed. R. Civ. P. 56(d) Affidavit fell short of the requirement necessary to avoid summary judgment on the issue of plaintiff’s survival claim, noting that there was no additional evidence available to prove that plaintiff’s decedent survived the initial impact to experience pain and suffering as a result of this collision, and that defendants presented enough evidence in the form of plaintiff’s decedent’s death certificate and evidence of the car’s condition to show that she died instantly.

Additionally, the Court rejected defendant’s argument that punitive damages were not available in this case because South Dakota statutory law excludes punitive damages from wrongful death claims. The Court disagreed, holding that punitive damages are available in any action for the breach of an obligation not arising from contract.

Salas v. VRP Transportation, Inc., 2024 U.S. Dist. LEXIS 99219, 2024 WL 2794964, C.A. No. EP-24-CV-82-KC(W.D. Tex., May 31, 2024).  In this action arising from a motor vehicle accident, the court remanded the action to state court, finding  there was not complete diversity between Plaintiff Salas and Defendant VRP Transportation, as both were citizens of Texas. This case was originally filed in County Court at Law Number 3 for El Paso County, Texas by Salas against defendant driver Torres, VRP Transportation Mexico, and VRP Transportation USA. VRP Mexico moved to remove the case to Federal Court citing diversity jurisdiction and improper joinder of VRP USA as defendant driver Torres was only operating as an employee of VRP Mexico at the time of the accident. To establish a claim for improper joinder, the removing defendant must establish either “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the nondiverse party in state court.” VRP USA did not argue that Plaintiff’s joinder of VRP USA was actually fraudulent and could not establish that plaintiff did not have a cause of action against VRP USA and VRP Mexico because both entities owned the vehicle Torres was driving at the time of the accident and Torres was operating within the scope of his employment. Therefore, the court found VRP USA was not improperly joined, that there was not complete diversity of the parties, and remanded the case back to County Court in El Paso County, Texas.

Sandifer v. Doe, 2024 U.S. Dist. LEXIS 95897, 2024 WL 2784742, C.A. No. 23-280-M (E.D. Louisiana, May 30, 2024).  This case arose out of a motor vehicle accident wherein a Pilot Travel Centers employee, Sandifer, was delivering fuel to the Walmart Distribution Center in Robert, Louisiana, and was struck while outside of his truck by a tractor-trailer owned by U.S. Xpress. Sandifer filed suit against the unknown driver, Walmart and U.S. Xpress, alleging negligence claims and seeking recovery for the personal injuries he sustained. Sandifer then filed an amended complaint, alleging Walmart had a duty to “regulate the movement of 18-wheelers on its property” and devise policies and procedures to protect pedestrians on its premises and make sure those operating tractor-trailers and other dangerous machinery are sufficiently trained on those policies and procedures. Walmart moved for summary judgment, alleging that Sandifer failed to identify any rule of law establishing that they had a duty to train individuals making deliveries on a third-party’s behalf. US Xpress argued that Walmart’s motion should be denied due to disputed issues of material facts regarding the condition of Walmart’s premises that contributed to the accident. However, the court found that Walmart successfully showed that Sandifer was in a well-lit and well-marked area of its premises when the incident occurred, and Sandifer confirmed as much. The court held that there was no evidence that Walmart breached a duty it owed to Sandifer and granted Walmart’s motion for summary judgment.

Mendez v. Summit Hous. Transp., LLC, 2024 U.S. Dist. LEXIS 94312, C.A. No. 1:22-cv-00125-MPM-DAS (N.D. Miss. May 28, 2024).  In this personal injury case, the court granted defendants’ motions for summary judgment in part as to punitive damages.  Factually, the accident occurred when a vehicle in which plaintiff was a passenger veered from its lane and ran into the back of a newly manufactured mobile home stopped alongside the highway.  Defendants were the manufacturer, transportation company, and truck driver.  The truck was stopped alongside the highway due to a failure of the tow hitch used to connect the mobil home to the truck.  The defendant truck driver was not able to pull as far onto the shoulder as he normally would due to rainy weather, which made the driver concerned of getting stuck in the mud.  Plaintiffs argued that the driver’s decision not to pull the truck over as far as he could placed his concern of getting stuck over concerns for the public’s safety.  However, the court found that while that decision may have been negligent it did not rise to the necessary standard for an award for punitive damage—i.e., the decision was not sufficiently reckless or outrageous.  Accordingly, the court granted defendants’ motion for summary judgment as to punitive damages.    

Manson v. B&S Trucking of Jackson, LLC, 2024 U.S. Dist. LEXIS 94790, C.A. No. SA-21-CV-01181-XR (W.D. Tex. May 28, 2024).  In this personal injury action, the court denied the plaintiff’s motion to reconsider the court’s grant of summary judgment for a claim of gross negligence against the defendant trucking company.  Plaintiff was struck by the defendant truck driver driving for the defendant truck company, B&S Trucking, around 3:00 AM.  The court granted the defendant truck company’s motion for summary judgment as to gross negligence, and plaintiff filed a motion to reconsider after obtaining driver logs that allegedly showed a pattern of the defendant driver falsifying her drivers’ logs in order to drive over her legal hours of service.  Plaintiff alleged that the defendant truck company approved, authorized, and ratified the driver’s conduct.  Plaintiff’s expert testified that the defendant truck company had a legal obligation to ensure drivers complied with the hours-of-service requirements.  The defendants’ expert testified that the drivers’ logs evidenced that a second driver was driving the vehicle, which accounted for the hours-of-service record discrepancies.  Further, the defendants’ expert testified that the applicable data logging system would have triggered a warning if there was a violation of the hours-of-service requirements.  Defendants contended that the system warnings negated the need for manual drivers’ log audits.  Ultimately, the court noted in denying the plaintiff’s motion to reconsider that there was no evidence in the record that the defendant trucking company had any knowledge of the defendant driver’s hours-of-service violations. 

Bubba’s Towing & Recovery, LLC v. Big Eagle Transp., Inc., 2024 U.S. Dist. LEXIS 94826, 2024 WL 2748472, C.A. No. 3:23 CV 2025(N.D. Ohio May 29, 2024).  The court granted defendant Vista Food Exchange, Inc’s (“Vista”) Motion to Dismiss all claims against it for lack of personal jurisdiction in this breach of contract/unjust enrichment matter without leave for plaintiff to amend its complaint.  Plaintiff is a vehicle towing service and sued a motor carrier and defendant Vista, a food distribution corporation.  Factually, the defendant motor carrier, a Michigan motor carrier, had a tractor trailer involved in an accident in Ohio, resulting in the cargo being strewn around the accident scene.  Vista, a New York corporation, owned the cargo.  Plaintiff provided towing and recovery services after the accident.  Plaintiff moved the cargo and tractor trailer to its storage facility.  Plaintiff filed the lawsuit to collect on unpaid services and storage fees.  Vista filed the motion to dismiss thereafter, arguing that plaintiff could not establish personal jurisdiction over it.  The court agreed, finding that under the Sixth Circuit’s three-part test to determine the proper exercise of specific personal jurisdiction, Vista did not purposefully avail itself of the privilege of operating in Ohio, but rather, merely placed its product in the stream of commerce.  It did not own the tractor or trailer.  Further, the court found plaintiff’s contention that Vista had a national and world-wide reach along with prior legal activity in Ohio were unavailing as it did not constitute an act by Vista purposefully directed toward Ohio such as advertising or designing a product to market in Ohio.  Further, the plaintiff’s claim against Vista did not arise out of any Vista activity in Ohio.  Finally, the court found that the third prong of the test was not met as there was not a connection between Vista and Ohio substantial enough for the court to exercise personal jurisdiction. 

Lidstrom v. Scotlynn Commodities Inc., 2024 U.S. Dist. LEXIS 101988, 2024 WL 2886570, C.A. No. 4:23-CV-05144-MKD (E.D. Wash. June 6, 2024).  In this personal injury case, the court granted in part Defendant Scotlynn’s motion for summary judgment.  Under applicable Washington state law, a plaintiff cannot recover under both a theory of vicarious liability and negligent hiring, training, supervising, etc. because allowing such recovery would be “redundant.”  Thus, if there is no evidence that an employee acted outside of the scope of his/her employment, then a plaintiff cannot maintain such direct liability causes of action against an employer.  In this case, defendant Scotlynn was the employer of the defendant driver and owned the subject truck.  The court found there was no evidence establishing the driver acted outside the scope of his employment during the time in question.  As such, the court granted summary judgment in favor of Scotlynn on the negligent training cause of action.  Likewise, the court granted summary judgment on plaintiff’s negligent entrustment claim for factual insufficiency.  Plaintiff alleged that the driver may have been distracted or tired while operating the truck but failed to allege facts that Scotlynn knew or should have known that the driver was reckless or incompetent.  The court also granted summary judgment on plaintiff’s negligent maintenance claim, noting plaintiff failed to support its claim with any factual allegations regarding maintenance. 

Galovich v. Morrissette, 2024 U.S. Dist. LEXIS 104646, 2024 WL 2962843, C.A.No. 3:21-CV-1532 (M.D. Pa. June 12, 2024).  In Galovich, the court granted Defendants’ motion for partial summary judgment. The defendants included: (1) two truck drivers; and(2) defendant company (“FAF”) for whom the drivers ran a dedicated route.  The action arose out of a motor vehicle accident whereby plaintiffs’ vehicle rearended FAF’s tractor trailer, which was stopped on the shoulder of a highway around 4:00 AM.  One of the defendant drivers was driving on an unfamiliar stretch of highway when a brake warning light illuminated.  The driver pulled the tractor trailer fully off the road onto the shoulder to check the brake issue.  The other driver was in the sleeper berth at the time.  Defendants moved for summary judgment on plaintiffs’ claims for punitive damages as to all defendants and corporate liability and negligence as to FAF.  Defendants argued that plaintiffs failed to proffer sufficient evidence through discovery to show that defendants acted in an outrageous manner or in reckless indifference to plaintiffs’ rights.  Plaintiffs countered, arguing that the defendant driver could have stopped at multiple exits instead of pulling off the road onto the shoulder.  The court held that Plaintiffs failed to show any evidence that pointed to the drivers having a culpable state of mind as to why the drivers pulled to the side of the road when they did.  The court dismissed the punitive damages claim as to FAF on the basis of vicarious liability because the defendant drivers’ actions did not give rise to an award of punitive damages.  The court also granted summary judgment on plaintiffs’ negligence and corporate liability claims because defendants admitted an agency relationship and punitive damages were not warranted.  Further, the court found plaintiffs did not provide sufficient evidence for their claim of negligence and corporate liability as to FAF beyond mere conclusory allegations.

Leyman v. Amazon Logistics, Inc., 2024 U.S. Dist. LEXIS 104466, 2024 WL 2962784, C.A. No. 1:23-cv-828, (S.D. Ohio June 12, 2024).  In this personal injury action arising from a motor vehicle accident, the Amazon Defendants prevailed on their Motion to Dismiss Complaint for Lack of Personal Jurisdiction and/or Forum Non Conveniens. Plaintiff Jurnee Scott Leyman filed this suit for personal injury and wrongful death on behalf of herself and as the administratrix of the estate of her deceased husband, Noah M. Leyman, against the Amazon Defendants, Defendant Timur Trucking, LLC (“Timur Trucking”), and Defendants Firdavs Kubaev, Ergash Annakukov, and Kamiloddin Adilov (collectively, “the Timur Agents”). Ms. Leyman alleges that her husband died when a tractor-trailer operated by Kubaev and Annakukov and under the direction and control of Timur Trucking and the Amazon Defendants, struck their vehicle on a divided highway in Texas. The Amazon Defendants are each incorporated in Delaware with a principal place of business in Washington. Two of the Amazon Defendants are registered to do business in Ohio and have a registered agent in Ohio. All Amazon Defendants engage in business in Ohio through the warehousing of goods and products, the delivery and transportation of goods and products, and “solicitation activities . . . to promote the sale, consumption, and uses of its services. Timur Trucking is incorporated in Ohio and has its principal place of business in Warren County, Ohio. The Amazon Defendants use the “Amazon Delivery Partner” website to solicit and contract with delivery partners to transport Amazon goods. At some point before the collision that took Mr. Leyman’s life, Timur Trucking contracted with the Amazon Defendants through the Amazon Relay application or similar Amazon program to deliver Amazon products. The Amazon Defendants had engaged Timur Trucking to deliver goods interstate and on Ohio roadways. On an unspecified date, Amazon Logistics, Inc. provided a 2021 blue Hyundai Ttranslead trailer, with Amazon labeling on the exterior, to Timur Trucking to deliver Amazon products. On June 4, 2023, Kubaev and Annakukov, acting in the scope of their agency and employment with the Amazon Defendants and with Timur Trucking, and driving a Freightliner Cascadia with the 2021 blue Hyundai Translead trailer, drove down the wrong side of a divided highway on U.S. 287 in Potter County, Texas. They struck a motor vehicle in which Mr. Leyman was the driver and Ms. Leyman was a passenger, killing Mr. Leyman and causing injury to Ms. Leyman. Neither party disputed the jurisdictional facts asserted by Ms. Leyman in the Complaint nor by Ryan Sandefur in his sworn Declaration on behalf of the Amazon Defendants. The Court reviewed whether the exercise of personal jurisdiction over the Amazon Defendants comported with Ohio’s long-arm statute and was consistent with due process. The court found that the Ohio long-arm statute requires a proximate cause relationship between the defendant’s act and the plaintiff’s cause of action.  It further found that Amazon Defendants’ conduct in Ohio did not proximately cause the collision in Texas. Ultimately the Court determined that the Plaintiff’s claim did not arise out of Amazon Defendant’s conduct in Ohio and that no strong relationship exists among the Amazon Defendants, the Ohio forum, and the litigation. Thus, exercising personal jurisdiction over the Amazon Defendants would be unreasonable. On that basis the Court granted the Amazon Defendants’ Motion to Dismiss Complaint for Lack of Personal Jurisdiction and/or Forum Non Conveniens.  However, in lieu of dismissal, the Court transferred the case to the Northern District of Texas.


Ritchey v. Tanager Logistics, LLC, 2024 U.S. Dist. LEXIS 101504, C.A. No. 5:24-CV-23 (S.D. Tex., June 6, 2024).  In this personal injury action arising out of a motor vehicle accident, the freight broker sued under a negligent brokering theory of liability removed the case to federal court based upon federal question jurisdiction.  Plaintiffs thereafter moved to remand the case to state court, contending FAAAA preemption, as argued by the defendant broker, did not confer federal question jurisdiction.  The court agreed and granted Plaintiffs’ petition for remand after Defendants were unable to show that a federal question arose in this case under the FAAAA.  In so holding, the court pointed to Fifth Circuit cases addressing the scope of preemption under the Airline Deregulation Act.  It rejected the broker’s attempts to distinguish the cases addressing the ADA on the basis that it, as a freight broker, was not in the same position as an airline carrier or motor carrier.  The court further distinguished cases from other Texas federal courts and other jurisdictions.  The court rejected that FAAAA was complete preemption sufficient to sustain federal jurisdiction and the FAAAA defense did not present a federal question sufficient to establish independent federal question jurisdiction.

Cox v. Total Quality Logistics, Inc., 2024 U.S. Dist. LEXIS 104456, 2024 WL 2962783, C.A. No. 1:22-cv-00026 (S.D. Ohio, June 12, 2024).  In this personal injury action against a freight broker arising out of a fatal motor vehicle accident involving the motor carrier to whom the broker brokered the load, the court granted the broker’s motion to dismiss plaintiff’s complaint, holding the negligent hiring and supervision claims were preempted by FAAAA.  In so holding, the court rejected that FAAAA’s safety exception precluded preemption. 


Arnold v. Allied Van Lines, 2024 WL 3063113, 2024 U.S. Dist. LEXIS 106701, C.A. No. SA-21-CV-438 (W.D. Tex., June 14, 2024).  In this case arising from damage to household goods in the care of Allied Van Lines during Plaintiffs’ interstate move, Plaintiffs rejected Allied’s offer of judgment for $32,500 and elected to proceed to trial, where they were awarded $31,909 in damages. As a result, Plaintiffs filed an application for attorney’s fees under 49 USC § 14708 and Allied filed a motion to award costs based on Plaintiffs’ alleged failure to obtain a judgment more favorable than the unaccepted offer. The court held Plaintiffs’ ability to recover attorney’s fees hinged on two questions: (1) whether the transaction between Plaintiffs and Allied was a collect-on-delivery (“COD”) transaction and (2) whether Plaintiffs’ were the prevailing party.  The court found that the transaction was not COD. Despite the fact that both the Bill of Lading and Freight bill signed by both parties were clearly marked as payment type “COD,” Plaintiffs paid Allied a deposit prior to shipment and their remaining bill balance the day before their goods were delivered. Accordingly, since Plaintiffs paid Allied before delivery, the move was not a COD transaction. Because Plaintiffs failed the first prong, the Court did not rule on whether Plaintiffs were the prevailing party. The Court then ruled that Allied was entitled to costs under Fed. R. Civ. P. 68 because Plaintiffs failed to obtain a judgment at trial greater than the rejected offer of judgment. The court then assessed the reasonableness of each of the requested costs by Allied, ultimately granting some and denying some. 

PCS Wireless LLC v. Rxo Capacity Sols., LLC, 2024 U.S. Dist. LEXIS 105480, 2024 WL 2981188, C.A. No. 3:23-CV-00572-KDB-SCR,(W.D.N.C. June 13, 2024).  In this action, plaintiff purchased approximately 54,000 wireless devices and hired RXO to transport the shipment from Texas to Florida by truck.  RXO subcontracted the shipment to Wizard Equipment Corp.  The shipment was ultimately stolen from a truck yard in Florida while en route to its final destination.  Plaintiff sued defendants to recoup uninsured losses in state court and Defendant RXO removed the case and filed a motion to dismiss, which was referred to a federal magistrate judge, who recommended granting RXO’smotion to dismiss.  The plaintiff only objected to the federal magistrate’s recommendation to dismiss the negligent brokering claim.  The district court ultimately adopted the magistrate’s recommendation, dismissing the broker negligence claim.  RXO argued that the Federal Aviation Administration Authorization Act (“FAAAA”) preempted the claim.  Plaintiffs argued that a negligence claim against a freight broker does not regulate or affect the prices, routes, or services of motor carrier and should not be preempted.  Plaintiffs argued that RXO had a duty to properly select any third party it hired to transport the shipment and breached that duty when it hired Wizard.  The court noted that the selection of a motor vehicle is a broker’s core service, and plaintiffs’ state law negligence claim was attempting to impermissibly regulate brokers in the performance of their core services and was thus, was preempted. 


Clark v. Progressive Cnty. Mut. Ins. Co., 2024 U.S. Dist. LEXIS 96604, C.A. No. 6:23-CV-625 (W.D. La. May 30, 2024).  In this personal injury action arising from a motor vehicle accident involving a CMV, the plaintiff included direct-action claims against the commercial auto liability insurer, as is permitted under Louisiana law.  Nevertheless, the court granted defendant Progressive’s motion for summary judgment on all claims alleged against it on the ground that the defendant trucking company’s policy was cancelled prior to the subject motor vehicle accident.  The court found that the defendant trucking company was not an insured under defendant Progressive’s policy at the time of the accident and therefore did not have a duty to defend the defendant trucking company or driver.  The defendant trucking company applied for an insurance policy with Progressive before the accident and listed a Texas address.  Progressive issued a Texas commercial auto insurance policy, that contained a Form MCS-90 endorsement.  Progressive issued a new Policy Declarations page two months later, including a new Texas address for the trucking company.  Progressive mailed a Notice of Cancellation to the new Texas address with an effective date of July 13, 2022, for nonpayment of the premium.  The accident occurred the next day.  Progressive contended the policy was cancelled before the accident, and accordingly it owed no duty to defend or indemnify, and had no obligation to pay for plaintiff’s damages, except to the extent Plaintiff proved the MCS-90 endorsement was in effect and triggered by the accident.  Plaintiff argued that summary judgment could not be granted due to two questions of fact: 1) Progressive offered no evidence that it sent the cancellation letter to the proper address; and 2) the cancellation documentation with the Texas DMV and FMCSA showed an effective date after the accident.  The court disagreed, finding that Progressive satisfied any burden upon it as it related to the mailing of the Notice of Cancellation when it presented evidence showing that it sent the cancellation letter to the last known address or the motor carrier based on the new Policy Declarations page mailed two months after the issuance of the policy.  The court also held that the effective date of a cancellation of a policy is not based on when confirmations of the cancellations  of motor carrier-specific endorsements (i.e., MCS 90 and/or Form E/F endorsements) are received by the respective state or federal agencies.

United Specialty Ins. Co. v. Alra Logistics, LLC, No. 3:23-cv-00049-TES, 2024 U.S. Dist. LEXIS 94717 (M.D. Ga. May 28, 2024).  In this insurance coverage declaratory judgement action, the Court found that United Specialty Insurance Company (“USIC”) owed a duty to defend its named insured, Alra Logistics, LLC, and Alra’s alleged employee/contractor driver, Xavier Downer, in connection with a personal injury tort action pending in Georgia state court (the “Underlying Action”).  As such, the court denied summary judgment in favor of USIC.

The accident giving rise to the underlying tort action occurred in Georgia when Downer drove an Enterprise-owned, but Alra-leased, box truck into Jamela Smith’s residence. The operative pleading in the underlying tort case alleged Downer was operating on behalf of Alra at the time of the Accident, driving an Alra truck, and was carrying Alra-owned property.  In both the declaratory judgment and underlying tort action, USIC disputed certain of the allegations of the underlying tort complaint, including but not limited to Downer’s permissive use of the box truck and whether he was acting within the course and scope of his employment with Alra at the time of the Accident. 

In the insurance coverage declaratory judgment action, USIC argued the policy’s Unlisted Driver Exclusion and the Radius Exclusion excluded coverage for the claims against Alra and Downer.  USIC also argued Downer did not qualify as an “insured” under the policy and/or that Downer’s failure to cooperate excluded coverage in his favor under the policy.  In addressing each of these arguments, the court conducted an extended analysis of the current state of Georgia insurance coverage law for motor carriers. 

As a first matter, the court addressed choice of law to apply for the interpretation of the insurance policy.  Under Georgia’s choice of law rules, the court explained “[i]f the law to be applied to a contract dispute by a Georgia court or a federal court in Georgia is . . . created by judges, then ‘the common law as expounded by the courts of Georgia’ must govern.”  It then found that while the policy was issued by a Delaware-incorporated insurer with its principal place of business in Texas to a Pennsylvania-based insured, nevertheless “no out-of-state statute governs this case” and accordingly Georgia law applied to the interpretation of the insurance policy because the declaratory judgment action was pending in Georgia federal court.

With respect to the duty to defend, the court explained that under Georgia law, an insurance company’s duty is determined by comparing the allegations of the complaint with the provisions of the policy.  If the allegations of the complaint against the insured are “ambiguous or incomplete with respect to the issue of insurance coverage,” the insurer is bound to afford a defense.  The court further explained, however, “[t]he general rule is that ‘in making a determination of whether to provide a defense, an insurer is entitled to base its decision on the complaint and the facts presented by its insured.’”  “A different rule, however, applies when the complaint on its face shows no coverage, but the insured notifies the insurer of factual contentions that would place the claim within the policy coverage. In such a situation, Georgia law says that ‘the insurer has an obligation to give due consideration to its insured’s factual contentions and to base its decision on ‘true facts.'” 

Turning to the particular facts and arguments of the case before it, the court generally agreed with USIC that Georgia law will typically allow exclusions from coverage from an unlisted driver unless public policy disfavors such.  It confirmed “[i]nsurance companies may reject coverage for an individual expressly excluded from a policy so long as the exclusion is supported by consideration.”  The court, however, distinguished a prior Georgia case enforcing an unlisted driver exclusion because in that instance, the policy at issue was a personal lines auto liability policy, whereas Alra “is an interstate carrier.”  In the court’s assessment, such “is a notable distinction[,]” given the specific federal and Georgia requirements for insurance policies issued to interstate and Georgia intrastate motor carriers, which the court seemingly equates with “public policy, and which it discusses in detail later in its decision. 

As for the “radius of operation” exclusion, while the policy’s language attempted to limit coverage within 300 miles of Pittston, Pennsylvania—the reported primary place of the Named Insured’s operation—the court noted the policy included Additional Insured endorsements for states other than Pennsylvania, including Georgia, and further, listed the principal garaging location of two specifically-described vehicles on the policy in Missouri.  The court surmised from all of this that the insurer knew, or reasonably should have known, the insured required insurance beyond the 300 miles from Pittston, Pennsylvania.  The court then reasoned “[s]ince United Specialty is in the business of offering insurance to motor carriers and because Alra Logistics plainly included states outside of Pennsylvania, that is enough to say that Alra Logistics fulfilled its ‘responsibility to inform its insurer of its need for interstate coverage,’ and put United Specialty on notice of Alra Logistics’ status as a motor carrier.  That would, of course, invoke protections provided by the Motor Carrier Act of 1980, 49 U.S.C. § 10101, et seq., and Georgia’s Motor Carrier Act, O.C.G.A § 46-7-1, et seq.”  In so ruling, the court distinguished a prior Middle District of Georgia case that placed the onus upon the insurer to notify the insurer that it required coverage as an interstate motor carrier.  The court held “[i]n the absence of evidence showing that the insured informed the insurer of its need for interstate coverage, Waters recognized that courts refuse to engraft statutorily required endorsements onto insurance policies as a matter of law.  That’s not at all what happened here.”  The court stressed that Alra’s application listed states other than Pennsylvania; the policy itself mentioned other states; and “more importantly than that, the policy that United Specialty issued contained the very endorsement at issue in Waters.”  In the court’s view, “[t]he simple inclusion of that all-important endorsement in Alra Logistics’ policy along with . . . unrebutted testimony that United Specialty ‘kn[ew] exactly what [Alra was] do[ing]’ when it came to the nature of [Alra’s] business is sufficient to say that United Specialty knew it insured an interstate motor carrier and that the endorsement—if the underlying facts are there—could defeat the purpose of its own Radius Exclusion.” 

The insurer also attempted to avoid the duty to defend the driver, claiming he was an non-permissive user.  However, the court pointed to the insurer’s own Reservation of Rights notification in which it indicated Downer was “at best, a ‘permissive user’ as opposed to an insured.”  The same Reservation of Rights notification also indicated, to the extent Downer was a permissive user, he would only be entitled to state-minimum required coverage.  So, the court reasoned that the insurer itself acknowledged both permissive user status and minimum coverage requirements, which would include the requisite duty to defend. 

As for the non-cooperation of Downer as a basis to deny coverage, the court acknowledged the insurer’s efforts to secure cooperation by Downer, including but not limited to attempting service at three separate addresses and hiring a private investigator to locate him, albeit unsuccessfully.  Turning to the law on the topic, the court summarized the current status of Georgia law as follows: to justifiably deny coverage for an insured’s failure to cooperate an insurance company must show three things: (1) first, the insurance company had to reasonably request the insured’s cooperation in connection with an asserted claim; (2) second, the insured must have willfully and intentionally failed to cooperate; and (3) and third, the insurance company must demonstrate that the insured’s failure to cooperate prejudiced its defense of the claim.  From the court’s recitation of the facts, it appears it took no issue that the insurer satisfied the first two prongs of the test.  However, it found that it was premature to determine what, if any, prejudice might befall the insurer because despite Downer’s prior “absence” from assisting with the underlying tort action to date, Downer might nevertheless be located and/or appear and assist with the defense at trial, which might negate any prejudice to the insurer. 

In conclusion, with respect to the duty to defend, the Court explained “since a claim could potentially come within the policy and since there is so much uncertainty as to whether Downer was permissive user of the Enterprise box truck, United Specialty’s Motion for Summary Judgment regarding its duty to defend Downer is DENIED. Notwithstanding Downer’s lack of appearance in this action, the ambiguous nature of the underlying complaint compels United Specialty to press on in providing him a defense.”

With respect to the insurer’s duty to indemnify under the terms of the policy, the court stressed “[i]f there is no duty to defend, there is no duty to indemnify.”  That said, the court found the insurer’s request for a declaration that it does not have a duty to indemnify was not ripe because there had been no determination on liability in the underlying action.

The Court next turned to address the MCS 90 endorsement on the policy and what impact, if any, the Georgia Motor Carrier Act may have on the foregoing analysis.  With respect to the MCS 90 endorsement, the court acknowledged Georgia adheres to the “trip specific” approach, which holds “that the MCS-90 endorsement is not applicable when an interstate carrier is engaged solely in intrastate commerce of nonhazardous materials during the specific trip it was engaged in at the time of the accident.”  The court therefore reasoned “[i]f Downer was not ‘presently engaged in the transportation of property in interstate commerce,’ then the MCS-90 endorsement will not apply to provide coverage.”  But critically, the court surmised “[i]f an item in the box truck was supposed to go to South Carolina, for example, then that specific trip would be interstate.”  The court found there was a fact question as to whether Downer was even engaged in commerce, much less interstate commerce, at the time of the Accident, but nevertheless held such fact issues should be left to be resolved in the underlying tort action.  As such, the court held it was premature to determine whether USIC might owe any duty to defend or indemnify Alra Logistics under the MCS 90 endorsement. 

Last, with respect to the impact of the Georgia Motor Carrier Act on the outcome of the declaratory judgment action, the court stressed the overarching purpose of the Act was “to protect members of the general public against injuries caused by the negligence of a Georgia motor carrier.”  It went on to explain “motor carrier,” under the Act, is defined as “[e]very person owning, controlling, operating, or managing any motor vehicle, including the lessees, receivers, or trustees of such persons or receivers appointed  by any court, used in the business of transporting for hire persons, household goods, or property or engaged in the activity of nonconsensual towing pursuant to O.C.G.A. § 44-1-13 for hire over any public highway in this state.” Georgia law defines “for hire” to mean “an activity relating to a person engaged in the transportation of goods or passengers for compensation.”  And finally, “carrier” is “a person who undertakes the transporting of goods or passengers for compensation.”  The court then turned to the allegations of the complaint in the underlying tort action, which alleged Downer was working on behalf of his Alra in a truck provided by Alra, carrying goods belonging to Alra, at the time of the Accident.  Finding that the allegations with respect to the “for hire” component were, at best, ambiguous, the court stressed the insurer had an obligation to defend its insured under the obligations of the Act.  In summarizing the impact of the Georgia Motor Carrier Act upon the duty to defend, the court explained as follows:

When Georgia’s Motor Carrier Act applies, as it very well could in this case, the important takeaway from Sapp is a simple one: “any provisions in [an] insurance policy . . . that would serve to reduce or negate [an insurance company’s] obligations to the motoring public . . . are void and of no effect.” 706 S.E.2d at 649 (citing Great Am. Indem. Co. v. Vickers, 183 Ga. 233, 188 S.E. 24, 26 (Ga. 1936) (“any provision in the policy of insurance, in so far as it may conflict with the plain provisions of the [motor carrier] statute, must give way, and is superseded by the statutory provisions”)). The Georgia Supreme Court invalidated a radius-of-use limitation in Sapp and held that it must give way to Georgia’s Motor Carrier Act and its purpose of protecting the motoring public. Id. at 648-49. Consequently, the extremely similar provisions from the policy United Specialty issued to Alra Logistics—the Unlisted Driver Exclusion and the Radius Exclusion—are unenforceable, and because there is an ambiguity presented by allegations from the underlying complaint, the required resolution, or end result, is to find in favor of a duty to defend. Id. Therefore, the Court cannot declare that United Specialty does not have a duty to defend Alra Logistics.


No cases of note to report this month. 

CAB Bits & Pieces June 2024

Hello, and welcome to the unofficial start of summer!

Hopefully everyone had a restful and reflective few days over the Memorial Day weekend. Memorial Day gives us the opportunity to recognize our military personnel that gave their lives in service to our country for our freedoms. Let’s always keep our veterans and active military personnel top of mind.

Other interesting happenings: Pam recently attended FMCSA’s Our Roads Our Safety® Week during the open house at the USDOT office in Washington DC. If you have any seat belt naysayers in your life, share the video from CAB’s LinkedIn post on her “seat belt convincer” experience.

Chad Krueger and Pam Jones


CVSA, Commercial Vehicle Safety Alliance’s Operation Safe Driver Week is right around the corner focusing on reckless, careless, or dangerous driving. July 7 – 13 law enforcement in Canada, Mexico, and the U.S. will be on a more heightened awareness for both passenger vehicle drivers and CMV drivers engaging in unsafe behaviors.

CAB Live Training Sessions

Due to travel and PTO schedules we have only one session this month.

Tuesday, June 18th | 12p EST

BASICs Calculator | Chad Krueger 

Expand your transportation safety expertise and help your clients & prospects understand the behaviors driving their BASICs and ISS values.

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

As you may already be familiar with, FMCSA implemented multi-factor authentication, MFA. MFA is a crucial feature we all experience if we do any kind of online business activity. Think of your banking, investment, utilities, travel, and all other kinds of online service transactions. CAB has added a link within our platform to replace the fleet’s ability to connect their driver data to our system. See the images below for login examples. 

screen shot of MFA log-in screen


Commercial P/C Premiums Increase 7.7% in Q1 2024 The Council of Insurance Agents and Brokers reported that commercial property/casualty premiums rose by 7.7% on average in the first quarter of 2024. This marks the 26th consecutive quarter of increases. Read more…

Fleets’ earnings in the first quarter reveals market keeps getting weaker The first quarter of 2024 showed a continuing decline in the freight market with soft rates, low volume, and challenging weather impacting carriers. While some carriers like XPO exceeded expectations, others like Knight-Swift and Heartland Express faced significant losses. Read more…

Cyberattacks Over Work Email Most Used; Ransomware Hits Victims Hard A survey by Arctic Wolf reveals that business email compromise is now the leading method of cyberattack, with 70% of senior IT and cybersecurity decision-makers reporting attempts. Ransomware remains a primary concern, with 45% experiencing attacks in the past year. Read more…

Broker group takes on trucking’s crime epidemic, double brokers The Transportation Intermediaries Association (TIA) is leading an industry-wide fight against freight fraud, highlighting a 600% increase in freight fraud incidents. Their new 40-page “Framework to Combat Fraud” outlines five types of theft and preventive measures. Read more…

Marijuana rules and regs changing? What truckers need to know President Biden’s administration is pushing to reschedule marijuana to a Schedule III controlled substance. This move would acknowledge marijuana’s medical value and reduce its abuse potential. However, changes in marijuana policy for the trucking industry are not imminent. Read more…

Trailer orders indicate a ‘year of transition,’ forecast affected by overcapacity April trailer orders remained steady at 13,700 units, up 20% year-over-year, per ACT Research. Despite this, low trucking profitability and overcapacity challenge growth. ACT anticipates improved fleet profitability later this year, though investments might shift to new power units ahead of EPA’s 2027 regulations. Read more…

Surge of cargo theft is ‘hitting us like lightning,’ experts say Cargo theft rose by over 46% in Q1 2024, with incidents totaling 925 and an average stolen shipment value of $281,757. Fraud and forgery are common methods, impacting various commodities. Read more…

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


Reeves v. Hertz et al., 2024 La. App. LEXIS 882, C.A. No. 23-494 (La. Ct. App. May 22, 2024).  In this appeal arising from a chain-reaction accident, the Louisiana appellate court affirmed the trial court’s grant of summary judgment to two sets of motor carrier defendants. The trial court had found neither could have been the cause-in-fact of the plaintiff’s accident. On December 6, 2015, plaintiff Robert Reeves (“Reeves”) was traveling westbound on Interstate 10 in St. Martin Parish on the Atchafalaya Basin bridge. Reeves was driving a tractor trailer. Also traveling westbound on Interstate 10 were the following relevant vehicles: (1) a Ford Expedition driven by Jesus Torres pulling a trailer (“the Torres vehicle”); (2) a tractor trailer driven by Cullen Toole and owned by CTG Leasing (collectively “CTG”); (3) a tractor trailer driven by Owens, owned by Swift Transportation Company of Arizona, L. L. C., and insured by Red Rock Risk Retention Group, Inc. (collectively “Swift”); (4) a tractor trailer driven by Jorge Gonzalez-Puron; (5) a tractor trailer driven by Ronald Huff and owned by Royal Trucking Company; (6) a tractor trailer driven by Jason Bingham and owned by Ashley Distribution Services, Limited; and (7) a tractor trailer driven by Christopher Hertz, owned by Vela Transportation, and insured by Acuity Mutual Insurance Company (collectively “Hertz”). From these vehicles two separate but related motor vehicle accidents occurred. The initial collision (the “CTG collision”), occurred between CTG and the Torres vehicle. CTG was in the right lane of travel behind the Torres vehicle but noticed that the rear wheel of the Torres vehicle had begun wobbling. CTG moved into the left lane, even though tractor trailers are prohibited from using the left lane while moving across the Atchafalaya Basin. Then the rear wheel fell off the Torres vehicle. The loss of the wheel caused the Torres vehicle to lose control, collide with the right bridge railing, swerve into the left lane, and jackknife. This caused a collision between CTG and the Torres vehicle. The Torres vehicle came to rest blocking both westbound lanes of travel. At the time of the first CTG collision Swift, after traveling in the left lane, had returned to the right lane of travel eight to twelve seconds prior to the second collision. Upon seeing the first collision, Swift applied the brakes and came to a complete stop without impacting CTG, the Torres vehicle, or a Volvo that also came to a complete stop behind the CTG collision. Swift was being followed by five tractor trailers driven by Gonzales-Puron, Huff, Bingham, Reeves, and Hertz, respectively. Upon seeing the vehicles in front of them attempt to stop, each driver unsuccessfully attempted to stop. What followed was a series of collisions involving each of the other five tractor trailers, resulting in the Gonzales-Puron vehicle, immediately behind Swift, to be propelled into the rear of the Swift vehicle (the “Swift collision”). 

Reeves filed his petitions for damages and various supplementations, alleging personal injuries, and naming the drivers, employers, and insurers of the four other tractor trailers involved in the second set of collisions, along with the parties involved in the initial collision between Swift and the Torres vehicle. After noting that Swift could effectively “shift the burden” to Reeves to show factual support sufficient to establish the existing of a genuine issue of material fact, the court found that Swift had effectively shifted the burden and Reeves failed to come forward with the necessary factual support for his claim against Swift. The appellate court agreed with the trial court that any chain of events between the initial CTG collision involving CTG and the Torres vehicle and the second collisions, Swift collision, was broken when Swift was able to come to a complete stop in the right lane of travel without impacting any vehicles involved in the initial collision. Reeves’ alleged injuries were the result of a separate, six-vehicle collision. This second collision did not involve either vehicle from the initial collision between CTG and the Torres vehicle. The court found that the evidence established Swift had re-established his vehicle in the right lane of travel for eight to twelve seconds before the second set of collisions, and that the Swift vehicle had come to a complete stop without impacting any other vehicle involved in the initial collision. The court rejected that that the mere statutory violations of Swift speeding and temporarily being in the left lane—where tractor trailers were prohibited—had no bearing on either accident. As such, the court found Reeves could not carry his burden to establish any action by Swift was a cause-in-fact of his injuries. 

With respect to CTG, the court similarly upheld the trial court’s grant of summary judgment on lines very similar to those with respect to Swift. It found any chain of events from the CTG collision and the Swift collision was broken when Swift was able to come to a complete stop in the right lane of travel without impacting any vehicles involved in the initial collision. Reeves’ alleged injuries were the result of the separate, six-vehicle collision. This second six-vehicle collision did not involve either vehicle from the initial collision between CTG and the Torres vehicle. Similarly, Reeves’ reliance on statutory violations by CTG for traveling in the left lane and speeding was deemed insufficient due to the lack of causal relation on the collision and resulting alleged injuries to Reeves, given that the chain of events between the initial collision and the second collision was broken when Swift came to a complete stop without striking any vehicles involved in the initial collision. Accordingly, the appellate court determined Reeves could not carry his burden of proof at trial that CTG’s actions were a cause-in-fact or legal cause of Reeves’ alleged injuries. As such, it affirmed summary judgment in favor of CTG.

Team Indus. Servs. v. Most, 2024 Tex. App. LEXIS 3389, C.A. No. 1-22-00313 (Tex. Ct. App. May 16, 2024). In this appeal, the Court of Appeals of Texas vacated a jury award against a trucking company after the trial. The court made various other rulings not in keeping with the trial court. The appellate court, in sum, held the trial court erred under the Restatement (Second) of Conflict of Laws in applying Texas law instead of Kansas law to hold appellant responsible for 100 percent of the damages, despite the jury’s findings that appellant was ninety percent liable, because Kansas held a more compelling interest than Texas in holding all parties responsible. The appellate court also held appellant was entitled to a forum non conveniens dismissal, as it was unable to subpoena Kansas state regulators to testify about the results of any investigation into the accident. Furthermore, dismissal would not result in unreasonable duplication of litigation, given that it had already been established that the trial court erred in applying Texas law to certain of appellee’s claims. Accordingly, the $222 million verdict in favor of appellee was vacated and the case dismissed on forum non conveniens grounds. 

Gruver v. Montesa Express, Inc. et al., 2024 U.S. Dist. LEXIS 79508, C.A. No. 1:21-cv-1210 (C.D. Ill. May 1, 2024). In this personal injury action arising from a motor vehicle accident, the trial court granted summary judgment on all counts in favor of the owner of a chassis that had been leased to a chassis pool cooperative at the time of the accident. TCW, who moved for summary judgment, is an “asset leasing company and equipment owner” which owned the chassis, or the base frame, attached to the tractor involved in the accident. The chassis (identified as “TCWZ 417132”) was leased as a part of a Master Lease Agreement between TCW and North American Chassis Pool Cooperative (“NACPC”).  The equipment was then placed by NACPC into the Chicago-Ohio Valley Consolidated Chassis Pool LLC (“COCP”) to be used by various motor carriers. Pinoy Trucking signed a Uniform Intermodal Interchange Agreement (“UIIA”) with the chassis pool. Through this agreement, Pinoy Trucking gained access to the chassis and used it to transport a shipping container on the day of the accident. Pinoy Trucking employed Anthony Dunn, who was assigned as the driver of the tractor, which pulled the chassis and container on the day of the accident. Following the accident, the plaintiff filed suit against TCW alleging negligent hiring, entrustment, and maintenance. As for the negligent entrustment claim, under applicable law, the plaintiff was required to show “TCW ‘gave another express or implied permission to use or possess a dangerous article or instrumentality which [defendant] knew, or should have known, would likely be used in a manner involving an unreasonable risk of harm to others.’” The court found that in this instance, the chassis at issue was leased as a part of an agreement to lease over one thousand pieces of equipment to NACPC, which then placed the equipment into a chassis pool.  It found “[t]here are no facts submitted by Plaintiffs that demonstrate TCW was involved with any day-to-day operations concerning the chassis, or that it had any knowledge of who was using it on the day of the accident. The undisputed facts fail to establish that Dunn was an employee, agent, or otherwise in service to TCW. The Court agrees with TCW that no reasonable jury could find it liable for negligent entrustment under these circumstances because there is not enough evidence to support a finding of implied permission.” The court similarly rejected plaintiffs’ argument that TCW had a duty to ensure the motor carriers that were part of the chassis pool had adequate safety records, noting that TCW had no direct contact with any motor carrier prior to the accident and resulting lawsuit. In the court’s view, adopting plaintiff’s version of negligent entrustment would be akin to imposing strict liability. Similarly, the court rejected the plaintiffs’ attempts to allege a common law duty upon TCW to all motorists, as the equipment lessor. The court explained there was no evidence that the chassis itself presented any danger to motorists absent independent, actionable negligence of the driver/motor carrier. It further noted that TCW lacked the ability to control or direct the conduct of Pinoy Trucking and Dunn. As such, there was no basis for a common law duty against TCW. The court also rejected plaintiffs’ attempts to hold TCW liable under the FMCSRs. It found TCW, in the capacity that it operated in this instance, was not a motor carrier subject to the FMCSRs. The court also rejected the plaintiffs’ attempts to hold TCW vicariously liable for the negligence of the other defendants, finding that such was precluded by application of the Graves Amendment. Finally, since the remaining loss of consortium claim against TCW was a derivative claim for which the court already held TCW was entitled to summary judgment, TCW was also entitled to summary judgment on this claim.   

Nevil v. Western Dairy Trans., L.L.C., 2024 U.S. Dist. LEXIS 92518, C.A. No. 4:24-cv-279 (E.D. Tex. May 23, 2024). A motor carrier’s attempts to remove a personal injury action based upon FAAAA preemption and/or federal question jurisdiction was rejected by the Texas federal court. Accordingly, the matter was remanded to state court for further proceedings. The court rejected that FAAAA was complete preemption sufficient to sustain federal jurisdiction and the FAAAA defense did not present a federal question sufficient to establish independent federal question jurisdiction. 

Ubaldo v. F&A Border Transp., LLC, 2024 U.S. Dist. LEXIS 79824, C.A. No. 24-CV-47 (W.D. Tex. May 1, 2024). A freight broker, motor carrier, and CMV driver’s attempts to remove a personal injury action to federal court premised upon FAAAA preemption and/or federal question jurisdiction were rejected and the case was remanded to state court for further proceedings. The court rejected that FAAAA was complete preemption sufficient to sustain federal jurisdiction and the FAAAA defense did not present a federal question sufficient to establish independent federal question jurisdiction. 

Dove v. Gainer, 2024 U.S. Dist. LEXIS 82016, C.A. No. 1:22-cv-00754 (N.D. Ala. May 6, 2024). In this personal injury action arising from a motor vehicle accident, claims of wantonness and negligent training and supervision were dismissed with prejudice. The accident that formed the basis of the suit occurred as a tractor-trailer operated by Gainer was merging onto I-20 when it collided with the plaintiffs’ vehicle. Gainer had been a commercial truck driver for six years at the time of the accident. He had never been cited for a moving violation. He did once damage the driver-side door of a commercial vehicle when the door contacted a fence as he was backing out of a property. Additionally, he had been reprimanded and counseled for driving beyond the hours allowed by the Federal Motor Carrier Safety Administration. However, he was within the hours-of-service limitations at the time of the accident. The court explained that under applicable state law, to hold a defendant liable for “wanton conduct” the plaintiff must establish a “high degree of culpability” and “inattention, thoughtlessness, heedlessness, or lack of due care”, alone, is insufficient.  Rather, “[w]antonness requires proof of ‘the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.’” Under the undisputed facts of this accident, the court held it failed to establish the requisite degree of reprehensibility to sustain a wantonness cause of action and dismissed the wantonness claim with prejudice. 

As for the negligent training and supervision claim, Alabama law required “plaintiff to show an employer knew or should have known its employee was incompetent.” Gainer being at fault for no more than one accident in the six years he had worked as a commercial truck driver was insufficient, in the court’s view. Similarly, the prior HOS violation, was immaterial since it was undisputed he was properly within the HOS at the time of the Accident. The HOS violation, standing alone, did not create a genuine issue of material fact as to Gainer’s competence as a driver.  As such, this claim was also dismissed with prejudice. 

Summerfield v. S.E. Freight Lines, Inc., 2024 Ark. App. 326, 2024 Ark. App. LEXIS 352, C.A. No. CV-23-12 (Ark. Ct. App. May 22, 2024). In this loading dock accident, the Court of Appeals of Arkansas affirmed summary judgment in favor of the motor carrier and its driver. The trial court dismissed with prejudice the plaintiffs’ negligence case against defendants and their negligent hiring, training, and supervision claims against the motor carrier as well as the plaintiffs’ request for punitive and compensatory damages. Plaintiff was employed as a forklift operator by R&R Packaging and was loading and unloading tractor trailers at one of R&R’s warehouses. Williams, the driver of the tractor-trailer on behalf of Southeastern, backed a Southeastern truck up to the R&R warehouse. There was conflicting testimony as to whether Williams set his air brakes, but Williams testified that it was his practice at the warehouse to chock his highway truck’s wheels once parked at the loading dock. However, neither OSHA nor R&R permitted highway trucks to be loaded or unloaded after air brakes were heard to be deployed. Instead, each required a highway truck’s wheels to be chocked—a wedge placed behind the wheels—before loading or unloading cargo. Plaintiff, who evidently was about to go onto break, placed a foot on the back-end of the trailer, keeping one foot on the dock before Williams exited his truck and chocked the wheels. Unaware that Plaintiff was trying to board the trailer before Williams had stopped and chocked the wheels, Williams repositioned Southeastern’s tractor. During this maneuver, plaintiff fell from the loading dock, sustaining injuries to his finger and arm. Plaintiff sued, alleging Southeastern was vicariously liable for Williams’s alleged negligence and claimed Southeastern was directly liable for negligent hiring, negligent training, and negligent supervision. The plaintiffs sought compensatory as well as punitive damages as a result of Williams’s and Southeastern’s willful and wanton conduct. Following discovery, Williams and Southeastern moved for summary judgment. The appellate court found the trial court correctly granted summary judgment to Williams and Southeastern because “as a pure matter of law,” Williams owed plaintiff no duty because plaintiff’s conduct was not reasonably foreseeable insofar as it was in violation of R&R’s own company policies and OSHA regulations. Further evidence presented showed R&R determined plaintiff was distracted and violated his employer’s policy. Because plaintiff’s conduct leading up to the incident was outside the accepted practice both of the industry in general and that of this employer, there is no way Williams could have reasonably foreseen it. Further, the plaintiffs introduced no evidence below showing that Williams could have foreseen plaintiff’s conduct. Thus, absent any duty owed to plaintiff, all negligence-based claims were due to be dismissed. 

Velilla v. Rushing, 2024 U.S. Dist. LEXIS 91263, C.A. No. 4:23-cv-03009 (S.D. Tex. May 21, 2024).  A lessor of a tractor involved a accident successfully moved under the Graves Amendment to be dismissed from a personal injury action alleging various causes of action against it. 

Perry v. Cummings, 2024 U.S. Dist. LEXIS 86340, 2024 WL 2171934, C.A. No. 1:22-cv-3860 (N.D. Ga. May 14, 2022). Various motor carrier and transportation defendants successfully moved for summary judgment on plaintiff’s negligent hiring, supervision, and entrustment claims. At the time of the accident, Cummings was operating a tractor-trailer for defendant Ryan Transport, LLC, who was assigned to transport the load by defendant Lenk Express, LLC. Ryan hired Cummings in June 2020, and Cummings was not involved in any accidents, nor did he receive any citations or points on his CDL license, prior to the accident in question that occurred in March 2021. Prior to his employment with Ryan, Cummings received two speeding tickets and a citation for following too closely between 2015 and 2017. Lenk Express moved for summary judgment as to the negligent supervision claim against it, whereas Ryan Transport moved for summary judgment as to the negligent hiring and supervision claims against it. The court agreed, finding “traffic citations that occurred more than three years before a driver was hired in no way implicate any potential negligent supervision of that driver. And second, ‘no reasonable jury could find that a truck driver was accident-prone based on two speeding tickets and a citation for following too closely over the course of a decade.’” As such, it granted summary judgment on these causes of action in favor of defendants. 

In re Mesilla Valley Transp., 2024 Tex. App. LEXIS 3147, 2024 WL 2034732 (Tex. Ct. App. May 8, 2024).  In this appeal of a discovery dispute on mandamus, the Court of Appeals of Texas curtailed a tort plaintiff’s discovery requests, and in so doing, reversed the trial court’s order. The personal injury suit arose out of a July 12, 2021, motor vehicle accident involving a MVT tractor-trailer operated by its driver, Stowbridge. In discovery in the personal injury action, the plaintiff sought information about lawsuits involving MVT for the past ten years and requested access to Stowbridge’s cell phone to retrieve data for four hours before and around the time of the collision. The trial court ordered MVT to produce information for all personal injury matters involving truck wrecks from July 12, 2017, to the present. The appeals court found both of these requests to be too broad. With respect to the prior accidents/lawsuits, it explained plaintiff “makes no effort to justify why lawsuit information involving MVT from July 12, 2017, to the present advances his claims against MVT.” Further, it found the trial court’s order as to prior personal injury matters failed to show how the scope of the ordered information to be produced “is refined in time, location, and scope as to be within the bounds of permissible discovery.” As for the cell phone records request, the court found while plaintiff may be entitled to discover Stowbridge’s cell phone data for some period of time, “the trial court’s order is not limited in temporal scope to be tailored to encompass only the time period in which Stowbridge’s cell phone use could have contributed to the collision.” It specifically noted that plaintiff’s mandamus response and motion to compel failed to establish why he needed Stowbridge’s cell phone data four hours before the collision to prosecute his lawsuit. Further, the appeals court found the trial court’s order failed to encompass the type of privacy protections necessary to ensure Stowbridge’s privacy interests were protected from unnecessary disclosure.

Quality Express, LLC v. Crane Transp., LLC, 2024 U.S. Dist. LEXIS 81186, C.A. No. 8:21-cv-02159 (D.S.C. May 3, 2024). In this action arising from a tractor-trailer on tractor-trailer accident, the trial court granted summary judgment to the company whose tractor trailer was parked on the side of the roadway.  he accident occurred at approximately 2:45 a.m. on Interstate 85. Plaintiff’s driver collided with the rear of the tractor-trailer owned by defendant but which was parked in the emergency lane of the interstate. Plaintiff filed a complaint, asserting causes of action for negligence/negligence per se, negligent entrustment, and negligent hiring, supervision and retention. On summary judgment, defendants contended that plaintiff had no evidence to deny summary judgment because plaintiff had not served any discovery requests, identified any expert witnesses, or taken a single deposition.  Defendants contended plaintiff had thus failed to come forward with evidence to refute their claims that plaintiff’s employee acted negligently in crossing over the fog line, and certainly had failed to come forward with evidence sufficient to support the direct negligence claims against the motor carrier. In response, plaintiff argued, lack of discovery notwithstanding, it was entitled to argue defendant’s employee was negligent in parking the tractor-trailer on the side of the interstate in a non-emergency situation, and moreover, it was entitled to cross-examine defendant’s theory of liability at trial. Ultimately, the trial court agreed with defendants.  It held, “[w]hile Plaintiff argues that Defendants acted negligently, it has presented no evidence to support any element in the causes of action listed in the Complaint. Although Plaintiff claims it is undisputed that Defendant Hart parked the tractor trailer on the shoulder of Interstate 85 without employing required precautions, there is no evidence in the form of affidavits, depositions, stipulations, admissions, or otherwise to support that claim. Similarly, none of Plaintiff’s claims against Defendants are supported by any identifiable evidence.”  As such, it granted summary judgment to defendants.


Hamby v. Wilson, 2024 U.S. Dist. LEXIS 90897, C.A. No. 6:23-cv-249 (E.D. Tex. May 21, 2024). In this instance, the court agreed that claims of negligent broker and negligent selection of a motor carrier were preempted by FAAAA. After noting the three tests that have developed nationwide in addressing the scope of FAAAA preemption for personal injury/tort claims against brokers, the court found the third test—which holds that “§ 14501’s express preemption applies to state tort claims and that the safety exception does not save them from preemption” to be “the most persuasive because [it] most clearly honor[s] the statutory text.” As such, the court agreed with the broker and dismissed the negligent broker and negligence selection of motor carrier causes of action against the broker. 


Minder LLC v. Real Int’l SCM Corp., 2024 U.S. Dist. LEXIS 84046, C.A. No. 2:23-cv-3292 (C.D. Cal. May 8, 2024). In this freight damage lawsuit, the court denied a defendant’s motion to dismiss premised upon insufficient allegations of carrier liability. The operative complaint alleged the moving defendant “was part of a series of subcontractors for the transport of the goods at issue.” In the court’s view, the motion to dismiss was “premised on the idea that only a defendant who actually physically transports the cargo at issue can be liable as a ‘carrier’ under the Carmack Amendment.” The court rejected this premise, instead finding “the term ‘carrier’ is not limited to entities that physically carried the goods. Instead, courts have focused on whether an entity ‘legally binds itself to transport’ and ‘accept[s] responsibility for ensuring delivery of the goods.’ In other words, a defendant can be liable as a carrier in some circumstances even if that defendant subcontracted out its assumed responsibility for transporting the goods at issue.” Under this standard, the court found the operative complaint alleged sufficient facts to preclude dismissal and refused to require specific factual allegations of the defendant’s precise role in the transportation at the pleading stage. 

Lotte Ins. Co. v. R.E. Smith Enters., 2024 U.S. Dist. LEXIS 83430, 4:23-cv-153 (E.D. Va. May 7, 2024).  In this suit alleging damage for a large shipment of lithium ion batteries, various defendants were granted dismissal at the pleadings stage. The facts established that in October of 2021, Samsung SDI Co., Ltd. (“Samsung”) shipped a container of 300 packages of large capacity cell lithium-ion batteries (the “Batteries”) from South Korea, Samsung’s country of incorporation. Traveling overseas on the vessel “Cosco Shipping Lotus,” the Batteries were ultimately destined for a buyer in Alberta, Canada, but first arrived on November 21, 2021, at Virginia International Gateway (“VIG”), a container terminal in Portsmouth, Virginia. Plaintiff alleges that in December of 2021, Lotte Global Logistics Co., Ltd. (“Lotte”) contracted with defendant Smith, a logistics business, to deliver the Batteries overland to the Canadian buyer. According to a series of emails exchanged between Lotte and Smith around December 3, 2021, Smith was to receive the Batteries from VIG, transload the Batteries from their ocean-going container, and then transport the Batteries to their Canadian buyer consistent with the applicable safety rules and regulations for shipping flammable lithium-ion batteries. Because the ultimate destination for the Batteries was outside of the United States, the foregoing procedures “needed to occur from a bonded warehouse.” Smith therefore selected the nearby “Trinity Logistics/DNK Warehouse” (“Warehouse”), located in Hampton, Virginia, and subcontracted with defendants Trinity Logistics LLC (“Trinity”) and DNK Warehousing & Trucking LLC (“DNK”) on behalf of Lotte for the “safe handling, transloading, storage, and redelivery of the Batteries.” Accordingly, between December 8th and 11th, the Batteries entered the Warehouse in “good order and condition, and were accepted as such.” plaintiff alleges that, at all “relevant times Trinity and DNK leased the Warehouse from its owner, G Street, another named Defendant. While temporarily stored in the Warehouse, the Batteries were allegedly under DNK’s and Trinity’s “exclusive custody and control,” and were scheduled to be transferred to a different container appropriate for ground transportation to Canada. However, around December 12, 2021, plaintiff alleges that the Batteries, while still “in DNK’s and Trinity’s exclusive custody and control,” suffered “physical and wetness damage” due to both the collapse of the Warehouse’s outer wall and the water discharged from a burst pipe. Ultimately, upon final inspection, the batteries were deemed a total loss. The commercial value of the Batteries, by Plaintiff’s calculation, was approximately $493,800, and the cost of transportation, inspection, and disposal was approximately $49,380, producing a total loss of approximately $543,180. Plaintiff filed its complaint, asserting seven counts against defendants Smith, DNK, Trinity, and G Street. 

Smith moved in response to the complaint, seeking dismissal of the bailment and negligence claims as preempted by the Carmack Amendment. While the operative complaint alleged alternatively that Smith was a carrier or broker, the court found Smith was entitled to dismissal because if it was a carrier the claims would be preempted by the Carmack Amendment, whereas if it was ultimately determined to be a broker with respect to the shipment, the claims would be preempted by FAAAA. With respect to the bailment claim, the court found that even if it was “contract-based” it would nevertheless be preempted by FAAAA. The court rejected that the bailment claim was a “routine breach of contract claim” and instead relied upon purported state-law based obligations, and as such, fell within FAAAA’s preemptive scope. 

 As for G Street, the court found the complaint failed to allege necessary factual support for a claim under Virginia law—namely that G Street had exclusive control over the batteries. It noted that the complaint specifically alleged that G Street leased the warehouse to DNK and Trinity and that DNK and Trinity exercised “exclusive custody and control” over the batteries. As such, the bailment claim failed. Similarly, the court found the negligence claim against G Street—as the owner of the Warehouse—failed under applicable Virginia law. 

Ronate C2C, Inc. v. Express Logistics, Inc., 2024 U.S. Dist. LEXIS 92013, 2024 WL 2338262, C.A. No. 23-cv-01917 (S.D. Cal. May 22, 2024).  In this cargo damage lawsuit, various defendants obtained dismissals in their favor at the pleading stage. The pleading alleged as follows:  Plaintiff is a distributor of chemical supplies, equipment, and related services; plaintiff and defendant Express Logistics entered into a brokerage agreement in which Express “promised to identify and locate reputable, but cost-effective, carriers for Plaintiff’s shipping needs;” plaintiff asked Express to arrange for shipping of a $14,000 Rectifier from San Diego, California, to plaintiff’s client located in Sparks, Nevada; on Express’s recommendation, plaintiff hired defendant Clear Lane to ship the goods, but Clear Lane subcontracted with defendant AAA to serve as plaintiff’s carrier without plaintiff’s knowledge or consent; thereafter, plaintiff discovered that the Rectifier was not delivered to their client; Express informed plaintiff the Rectifier was lost. As a result, plaintiff filed a claim for breach of contract against Express and a claim for negligence against Express, Clear Lane, and AAA in the Superior Court of California, County of San Diego. AAA removed the case to federal court and thereafter moved for dismissal, contending plaintiff’s negligence claim against it is preempted by the Carmack Amendment. Clear Lane joined AAA’s motion.  After citing established law, the court agreed with Clear Lane and AAA and held plaintiff’s negligence claim against each was completely preempted by the Carmack Amendment, and therefore each was entitled to dismissal in their favor, but with leave to plaintiff to amend. 

Cal. Auto. Ins. Co. v. Colonial Van Lines, Inc., 2024 U.S. Dist. LEXIS 91305, C.A. No. 5:23-cv-0562 (C.D. Cal. May 20, 2024). In this property damage and subrogation lawsuit, the federal trial court denied a motion to dismiss based upon Carmack preemption. The court acknowledged that the defendant’s arguments for dismissal “hinge on whether the Carmack Amendment applies to Plaintiff’s Complaint.”  While, in connection with its motion to dismiss, the defendant presented evidence that the move in question was interstate, the court held it was confined, at this stage, to the allegations of the complaint, which did not mention the interstate nature of the shipment. Rather, the complaint merely mentioned plaintiff contracted with defendant to transport his property “to an agreed upon location.” 

Max Zach Corp. v. Marker 17 Marine, 2024 U.S. Dist. LEXIS 88529, 2024 WL 2139614, C.A. No. 3:23-cv-01088 (D. Conn. May 14, 2024). In this lawsuit arising from the allegedly failed modification and interstate transport of a yacht, the trial court granted defendants’ dismissals with respect to certain causes of action alleged against each. According to the operative pleading, plaintiff contracted with defendant Marker 17 to modify its 2006 48’ Fountain yacht including retrofitting the yacht with new motors. Plaintiff alleges the contract price of $315,000 also required Marker 17 to be responsible for the delivery of the retrofitted yacht from Marker 17’s location in Wilmington, North Carolina to plaintiff’s location in Connecticut. Following the retrofitting, Marker 17 prepared the yacht for transport. Marker 17 selected Premium Carriers to perform the interstate transport. While in transit in New Jersey, the trailer containing the yacht overturned. Plaintiff alleges a total loss of $750,000. Following the accident, the yacht was transported to Superior Towing and Transport, which is allegedly charging storage fees of $150 per day, where it remains. Plaintiff alleged four causes of action: (1) negligence against Marker 17; (2) breach of contract against Marker 17; (3) conversion against Marker 17; and (4) Carmack Amendment cause of action against Premium Carriers. Marker 17 moved to dismiss the negligence and conversation claims against it. With respect to the negligence claim, the court first agreed with Marker 17 that under the applicable choice of law rules, Connecticut, not New Jersey law, applied and therefore plaintiff’s negligence claim was time-barred by the two-year statute of limitation. With respect to the conversion claim, the court agreed with Marker 17 that it was duplicative of the breach of contract claim already alleged against Marker 17. The court found that based upon the allegations of the complaint, it was clear that the conversion claim proceeded from and related to the alleged contract between Marker 17 and plaintiff, and accordingly, the breach of contract claim was the appropriate avenue for plaintiff to pursue recovery against Marker 17. 


Diamond Transp. Logistics, Inc. v. Kroger, Co., 2024 U.S. App. LEXIS 11561, C.A. No. 23-3462 (6th Cir. May 13, 2024). In this appeal, the Sixth Circuit affirmed the trial court’s ruling regarding the scope of an indemnification obligation between two parties to a transportation contract. Diamond and Kroger entered into a formal agreement, which provided, amongst other things the right of Kroger to withhold shipping payments from Diamond for claims it had against Diamond if certain conditions were met. The agreement also discussed indemnification. It stated:

[Diamond] does hereby expressly agree to indemnify, defend and hold harmless [Kroger], its affiliates and subsidiaries and their respective directors, officers, employees, agents, successors and assigns (“Indemnit[e]es”) from and against any and all suits, actions, liabilities, judgments, claims, demands, or costs or expenses of any kind (including attorney’s fees) resulting from (i) damage or injury (including death) to the property or person of anyone, whomsoever they may be, arising or resulting at any time or place from any operations hereafter performed either by [Diamond], its agents, employees or subcontractors in performing services for Kroger or (ii) the negligence, willful misconduct or violation of law by [Diamond], its agents, employees or subcontractors except to the extent that such liability is caused by the sole negligence or willful misconduct of Kroger.

In December 2015, one of Diamond’s subcontractors was involved in an accident with a minivan while hauling Kroger products through Missouri. The occupants of the minivan all were killed in connection with the accident. After the family of the decedents amended their complaint to add Kroger, alleging negligence and recklessness in selecting, hiring, and retaining Diamond; negligent/reckless selection as a shipper, Kroger tendered the lawsuit to Diamond and demanded defense and indemnification. Thereafter, Kroger and Diamond entered into an “indemnification agreement” whereby Diamond agreed to “indemnify and hold [Kroger] harmless from any claim or liability arising from” the December 2015 collision. Still, by June 2018, Diamond hadn’t reimbursed Kroger. Kroger reached out again, specifying its legal fees. But that demand, too, proved fruitless. Kroger then took matters into its own hands. Starting in July 2018, it withheld shipping payments from Diamond. Kroger ended up withholding nearly $1.8 million. Diamond quickly realized it wasn’t getting paid but didn’t know why. In a September letter to Diamond, Kroger explained: it thought Diamond was “obligated to defend and indemnify Kroger.” By failing to do so, Kroger said Diamond was breaching their agreements. Kroger stated that it would continue to withhold payment until things changed.

One month later, Diamond took action. Though its insurer refused to provide Kroger coverage, Diamond said it would “defend, hold harmless and indemnify Kroger” in the family’s suit per the parties’ transportation agreement. Diamond even retained local defense counsel for Kroger. But by then, according to Kroger, it was too late. Over the past year, Kroger’s counsel had interviewed several witnesses and handled extensive discovery requests. Further, within the next month, Kroger’s corporate designee would be deposed, and Kroger would mediate with the family. Diamond asked Kroger to delay mediation so it could get up to speed. But Kroger pressed on and settled with the decedents’ family for over $2 million.

By December 2019, Kroger still hadn’t paid Diamond the money it withheld. Diamond sued to try to recoup those funds. In response, Kroger filed claims of its own, including one for breach of the transportation agreement’s indemnity provision. Kroger sought the difference between what it withheld and what it ultimately settled the family’s claims for—roughly $600,000.

Both parties moved for summary judgment. Relevant here, as to Kroger’s claim for breach of the agreement’s indemnity provision, the district court ruled in Kroger’s favor and awarded it $612,429.45 plus interest. Diamond appealed.

On appeal, Diamond presented only one question: Was it required, under the parties’ transportation agreement, to indemnify Kroger for the family’s claim? According to the Court, no one disputed that the family’s claim triggered clause (i) of the indemnity provision, which indemnifies Kroger from damage or injury (including death) to a person while a Diamond subcontractor ships Kroger goods. Instead, the issue is whether the indemnity provision’s exception for “liability. . . caused by the sole negligence or willful misconduct of Kroger” relieves Diamond of its obligation. Applying Ohio law, the court found there was no evidence that Kroger’s liability was based upon Kroger’s “sole negligence” so as to trigger application of the exception to the indemnification obligation of Diamond under the contract. The Sixth Circuit held “Diamond’s negligence played at least a part in Kroger’s liability for the family’s claim. Claims of negligent selection, hiring, and retention take two to tango—negligent parties, that is. The claim’s elements tell the story. To succeed, a plaintiff must show, among other things, ‘the employer’s negligence in hiring or retaining the employee” and an “employee’s act or omission.’ Kroger’s liability, therefore, was ‘not viable without an underlying act of negligence by [Diamond].’Because Diamond must have also been negligent for Kroger to be liable, the ‘sole negligence’ exception does not relieve Diamond of indemnification.” As such, it held Kroger was entitled to indemnification in relation to the personal injury claims arising from the Accident and affirmed the trial court’s award in favor of Kroger. 


No cases of note to report this month. 

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