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Bits & Pieces

October 2020

Winter can wait…

As we enter November there’s a big day on the 3rd. Don’t forget to vote and no matter your leanings, we will all be friends when it’s all over. An even bigger day occurs on the 11th – Veterans Day. Make it a point to reach out to family, friends and coworkers and let them know you appreciate their service.

It’s hard to believe, but large portions of the country have already experienced winter weather in the form of freezing temperatures, ice, sleet and snow. There have already been some large crashes that may be keeping our claims folks busy as we acquaint ourselves once again with winter driving. Here’s to hoping for some warmer temperatures before the real winter weather sets in.

Stay safe and have a great month!

CAB Live Training Sessions

Our live training sessions continue to garner great interest from our users.  If you missed either of these webinars, they are available in the Tools menu under Webinars or by clicking here. This month we will present two new live training sessions:

Tuesday, November 10th @ 12p EST: Our CEO Jean Gardner will be presenting a new topic, CAB Claims Training. For those of you that have attended one of Jean’s sessions at a conference or webinar previously, you know you are in for a treat. The session will provide tips for identifying relevant information and how it can be used. Although this session will be geared towards Claims, there will be information that will apply to a number of responsibilities including, producers, loss control, underwriting and the like.

Tuesday, November 17th @ 12p EST: Chad Krueger will be providing additional insight during our focused training, BASICs Calculator Introduction. Chad will provide a brief overview of the BASICS Calculator and how it is used to create opportunities, understand motor carriers more effectively and identify potential diamonds in the rough. Don’t miss this very informative session!

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest focused training topics that you would like to see. We are looking forward to connecting with you during these sessions so don’t hesitate to ask questions!

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CAB’s Tips & Tricks: When is a motor carrier required to update their MCS-150 and how can I use the CAB Report to determine this?

Did you know the FMCSA Requires Motor Carriers to update their registration information (MCS-150) every two years. Additionally, name, address and other changes should be updated in a timely manner. When a motor carrier is required to complete their biennial update is relatively easy to determine. It’s all based on the last two digits of their DOT Number. The list digit determines the month. Interestingly, no motor carrier is required to update in November or December.

If the next-to-last digit of its USDOT Number is odd, the motor carrier or intermodal equipment provider shall file its update in every odd-numbered calendar year. If the next-to-last digit of the USDOT Number is even, the motor carrier or intermodal equipment provider shall file its update in every even-numbered calendar year.

Therefore, if a motor carrier’s DOT number is the following 1234567, the motor carrier would need to file their biennial update by the last day of July of even years. Their next update would be required by July of 2022.

*Note: A motor carrier can update as many times as they want between the biennial updates. As noted above, if address changes, name changes, etc, an update should be completed. However, if a motor carrier expands, contracts, changes operations or the like, updates should be completed then as well. When it comes to BASIC Percentiles, unit count and miles traveled are used in the calculations for Unsafe Driving and Crash BASIC. So, it is important to keep them updated regularly.

When it comes to the MCS-150 or Biennial registration information on the CAB Report, focus on the General Tab at the bottom. There you will find Company Information (see below). The motor carrier below has a DOT number that ends in with XXXX36. Therefore the update is required to be filed by the end of May on odd years. We can see below that this motor carrier completed their update on time via the green circle. As you’ll note additional pertinent information is included in the Company Information section. At the very bottom, you will see 6-month snap shots of the power unit, driver and mileage counts. Since this motor carrier updated in May of 2019, you’ll note that those data points don’t change for the last 3 snapshots.

THIS MONTH WE REPORT:

CVSA Releases 2020 Brake Safety Week Results: During this year’s Brake Safety Week, 12% of the 43,565 commercial motor vehicles inspected were placed out of service for brake-related violations. Inspectors from Canada, Mexico and the U.S. removed 5,156 commercial motor vehicles from roadways due to brake violations during the week-long inspection and enforcement event, focused specifically on reducing brake-related crashes by conducting inspections and identifying and removing unsafe commercial motor vehicles from roadways. Eighty-eight percent of the commercial motor vehicles inspected did not have brake-related critical vehicle inspection item violations. For more information on 2020 Brake Safety Week results, click here.

American Transportation Research Institute releases 2020 Top 10 Trucking Industry Issues: For the fourth year in a row, the trucking industry’s driver shortage ranked No. 1 on the annual Top Industry Issues list from ATRI. This year, ATRI noted that fleets’ difficulty in hiring is being exacerbated by the COVID-19 pandemic, as the retirements of thousands of drivers, state motor vehicle departments’ inability to test and process new CDL applicants, and the market’s redistribution of freight are coalescing to further stress the pool of available drivers. In addition, the loss of tens of thousands of drivers who are listed in the new Drug and Alcohol Clearinghouse as being disqualified from driving because of substance abuse issues is taking a further toll on the industry.

Department of Labor Seeks to Clarify Employee/Independent Contractor Status: A notice of proposed rulemaking issued by the Department of Labor in late September would provide motor carriers with long-desired clarification on how to properly classify an employees vs. independent contractor, at least under the federal Fair Labor Standards Act. A considerable drawback, though, is that the DOL’s new test for determining a worker’s status would have negligible impact on state-level labor laws — with which motor carriers will still need to comply even after the Labor Department finalizes its definition. For more information on the proposed rulemaking, click here.

FMCSA Releases September 2020 Monthly Summary Report: An interesting point that is developing with the summary is that of the 40,433 Drug & Alcohol tests completed since the start of the program, 20,976 of the positives we’re during pre-employment screening. Random testing had the second highest positives at 14,340 followed by post accident at 1740. Positive drug tests account for 82% of the total violations reported. Of the 37,617 drivers with at least one violation, 26,590 have not started the Return to Duty Process and only 3461 are no longer in a prohibited status. For more information on the summary, click here.

Brake Light Recall Affects 128,269 Freightliner Trucks: Daimler Trucks North America has issued a major recall for a brake light defect that could increase the risk of a crash. The recall affects certain models of 2017-2021 Freightliner Cascadia P4 vehicles for a defect that could cause the brake light to remain illuminated after the brake pedal is released. According to recall documents, “if the brake lights remain illuminated, drivers may be unaware when the truck is actually slowing or stopping, increasing the risk of a crash.” A total of 128,269 vehicles are affected by the recall. The recall is expected to begin November 16, 2020. For more information on this recall, click here.

Three Months Left to Meet Drug & Alcohol Clearinghouse Annual Query Requirement: If an employer has not yet conducted queries in the Drug and Alcohol Clearinghouse on any CDL drivers they currently employ, time is running out. The deadline to meet the annual query requirement § 382.701, is January 5, 2021. This annual query requirement is tracked on a rolling 12-month basis. For instance, if an employer conducts a query of a CDL driver on October 9, 2020, the employer will not need to query that driver again until October 9, 2021. Employers must purchase a query plan to ensure they, and their designated consortia/third-party administrators (C/TPAs), can conduct queries on prospective and current drivers. Learn more about query plans. To learn more, click here to download the queries and consent requests factsheet.

CVSA Issues New Container Securement Inspection Bulletin: The new details accepted standards for securing roll-on/roll-off, hook-lift, and lugger boxes on CMVs. Both the U.S. and Canada have regulations for securing roll-on/roll-off and hook-lift containers on commercial trucks, but the rules lack important details. This has led to some confusion among motor carriers, drivers, and enforcement personnel alike. The new nine-page CVSA bulletin aims to reduce that confusion with examples and detailed instructions on how the containers should be secured, regardless if the truck has a built-in container securement system or not. The inspection bulletin can be reviewed here.

FMCSA Working to Expand the Under 21 Military CDL Program: The Federal Motor Carrier Safety Administration is proposing to expand the number of people who can participate in its pilot program for under-21 drivers with a military background. In a notice published in the Federal Register on Friday, Oct. 9, FMCSA plans to expand the number of military occupational specialties that are eligible for the pilot program from seven to sixteen. The pilot program, which allows some military veterans and reservists who are under 21 to operate a commercial motor vehicle in interstate commerce and was mandated by the FAST Act. For additional information on the expansion of the program, click here.

CASES

AUTO

What is the level of additional responsibility for the trucking company when a truck driver operating under the influence of drugs injures another. The Eastern District in Arkansas granted summary judgment to the motor carrier on claims for damages under the Crime Victim Act and punitive damages. Negligent hiring and supervision claims were also dismissed when the motor carrier conceded vicarious liability for the actions of the driver. Kieffer v. Marten Transport, Ltd., 2020 WL 5770841

Generally no defendant wants to be in Cook County, Illinois. The Supreme Court in Illinois agreed that Cook County, Ill was an improper venue for a truck accident which occurred in Ohio. The fact that the defendant had a remote employee who worked out of his house in Cook County Illinois was insufficient to support a claim that it was an “other office” for the purposes of Illinois venue statutes. The county of the office was not a relevant factor to the defendant’s engagement of the remote employee. Tabirta v. Cummings, 2020 IL 124798

A similar decision was reached in the Western District in Louisiana where the court agreed that claims for negligent hiring, training and supervision should be dismissed when the motor carrier agrees that the driver was acting within the scope of employment at the time of the accident. Allen v. Royal Trucking Company, 2020 WL 5985981

Other jurisdictions agree. In the Eastern District of Louisiana claims for negligent entrustment, negligent hiring, and negligent supervision were dismissed for the same reason. Marcello v. Holland, 2020 WL 5960684.

In the Western District in Oklahoma the court held that once the motor carrier stipulated to its agency relationship with the employee the claims of negligent hiring, supervision, retention and training were superfluous. Njuguna v. C.R. England 2020 WL 6151567

Over in the Western District in Texas the motor carrier was successful in obtaining dismissal of claims for negligent entrustment, negligent driver qualifications, negligent hiring, negligent training and supervision, negligent retention, negligent contracting, negligent maintenance, providing unsafe equipment, and gross negligence. While the causes of action could be valid in Texas, the complete lack of evidence to support such claims against the motor carrier convinced the court that the causes of action should be dismissed. Acuna v. Covenant Transport, Inc., 202 WL 6064419

Plaintiff was unable to support a claim for wantonness simply because the truck driver was operating the vehicle too fast. The Northern District of Alabama also concluded that there was insufficient evidence presented by the plaintiff to support claims for negligent and/or wanton entrustment, hiring, training or supervision. All such claims were dismissed. Parker v. Oliva, 2020 WL 6081963

The Northern District in Alabama also addressed claims against a truck driver who was stopped on the right of way and was struck by the plaintiff, resulting in numerous fatalities. Unfortunately for the motor carrier the court concluded that there remained questions of fact on most of the claims, including claims for wantonness and negligent maintenance. Martinson v. Crete Carrier Corp., 2020 WL 5994260

The Southern District of Ohio rejected the plaintiff’s position that violations of the Federal Motor Carrier Safety Regulations would give rise to a federal question and confer jurisdiction in the federal court. The court held that the regulations do not present a substantial question on federal law in a personal injury action. Dumas v. Albaier, 2020 WL 5943019

Plaintiff was unable to obtain partial summary judgment on the issue of whether or not the truck driver was the sole cause of a rear end collision when there were questions regarding the actions of the plaintiff in stopping in front of the driver. The Eastern District of Louisiana did grant the plaintiff partial summary judgment on the question of whether the driver was operating within the course and scope of his employment at the time of the loss. Dickerson v. Hapl, 2020 WL 5993148

Another truck broker preemption case, this month in the 9th Circuit. The court reversed the lower court decision granting judgment to the broker and concluded that negligence claims against brokers, to the extent that they arise out of motor vehicle accidents, have the requisite “connection with” motor vehicles to fall within the safety exception to preemptive effect of the FAAA. The safety exception provides that § 14501(c)(1) “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). This creates a significant exposure for brokers in this venue. Miller v. C.H Robinson Worldwide, Inc., 2020 WL 5637620

A trucking company, but not a driver, was successful in getting summary judgment on a punitive damages claim The District Court in New Mexico concluded that the plaintiff had failed to create a genuine issue of material fact as to the motor carrier’s culpability for punitive damages, concluding that holding otherwise would amount to imposing punitive damages on a corporate entity under a simple respondeat superior theory. Plaintiff sought the damages based upon the alleged cumulative effects of the conduct of corporate employees which plaintiff contended demonstrated a culpable mental state warranting punitive damages. Plaintiff simply had no evidence to support that allegation. Yazzie v. Fezatte. 2020 WL 5977929

Plaintiff was entitled to proceed against a facility owner and the owner of a trailer which was leased to his employer when he was injured after falling from the top of the tractor-trailer while attempting to roll out a tarp to cover the load The Appellate Division concluded that plaintiff was entitled to the protection afforded by Labor Law § 200 for his work because that section codifies the common-law duty of an owner to provide workers with a safe place to work, which was not limited to construction work. Landron v. Wil-Cor Realty Co, Inc. 2020 WL 5823212

The Western District in Oklahoma agreed that there was no basis for a claim for punitive damages against a motor carrier or a driver following an accident. The court concluded that the evidence presented indicated, at most, that the driver was negligent. “The mere happening of an accident as a result of inadvertence on the part of the [allegedly] responsible party is insufficient to constitute gross negligence.” Cardenas v. Schneider, 2020 WL 5947588

In a related decision, and for similar grounds, the court also granted summary judgement on punitive damages claims brought by co-plaintiffs, concluding again that plaintiffs had not presented clear and convincing evidence that the driver acted with reckless disregard as to the underlying accident. Cardenas v. Schneider, 2020 WL 5947582

Judgment in the amount of $1,243,413.19 was upheld against a trucking company in the Court of Appeals in Louisiana. The court rejected all of the motor carrier’s arguments on the admissibility of evidence, especially the admission of the testimony of the police officer who opined on plaintiff’s lack of fault, the position of plaintiff’s vehicle and the fact that the left lane was not clear when efforts were made to pass. Simpson v. UV Insurance Risk Retention Group, Inc., 2020 WL 5816002

We will have to follow a state court to see what happens in an action asserting that the defendants knew or should have known that all of the vehicles operated by the logging company had been put out of service by the FMCSA. The Northern District in Alabama concluded that it did not have jurisdiction over the suit when the plaintiff included the non-diverse manager who contracted with the carrier. Taylor v. Trevor Eaves Logging, LLC 2020 WL 5880189

Another motor carrier had its removal remanded back to state court when it was clear that the truck driver was non-diverse. The District Court in Connecticut was not happy about the fact that none of the defendants addressed the very real fact that everyone had to be from a different state than the plaintiff, not just the driver’s employer. Castillo v. Swift Transportation Services, LLC, 2020 WL 5879406

Apparently trying to remove without complete diversity was happening in many places this month. Over on the other coast, in the Northern District of California, the court remanded a case when it was clear that the truck driver was from the same state as the plaintiff, even if the motor carrier was not. The court also rejected the argument that there was a federal question to be considered simply because the carrier was using the federal highway system at the time of the accident. Christy v. Safeway, Inc., 2020 WL 5759790

While a motor carrier could not be sued for negligent hiring, training or supervision of the driver of a vehicle because it accepted vicarious liability for the driver, the Court of Appeals in Louisiana held that the plaintiff could assert those claims against the motor carrier when alleging fault in the training of those responsible for the maintenance of the truck when the drive shaft dropped and injured the plaintiff. Perro v. Alvardo, 2020 WL 5815947

The Court of Appeals in Georgia disagreed with a trial court’s ruling that an entity with operating authority should be considered the motor carrier for the purposes of vicarious liability when it was really acting at the shipper at the time of the accident. The court concluded that the defendant had simply hired a motor carrier to transport the shipment of oil and there was no evidence that it had leased the vehicle or driver or otherwise held itself out as the motor carrier. Stubbs Oil Co. v Price, 2020 WL 6128088

Despite delaying well past the time to amend a complaint, and past the statute of limitations, the Superior Court in Delaware concluded that a plaintiff could amend his complaint to add his wife’s loss of consortium claim. Because that claim arose “out of the conduct, transaction, or occurrence” set forth in Plaintiff’s original complaint, it was held by the court to relate back to the date on which Plaintiff filed his original complaint. The claim could proceed. Cook v. J and V Trucking, 2020 WL 5846630

CARGO
One household goods carrier was happy that it tried, over and over again, to have the plaintiff purchase insurance for her interstate move. The District Court in Utah concluded that the motor carrier met all of the requirements for a valid limitation of liability Cook v. New York Moving & Storage, Inc., 2020 WL 5803190

A truck broker was unsuccessful in seeking dismissal of breach of contract claims alleged against it for a cargo loss. The Eastern District in Pennsylvania held that the Carmack Amendment did not preempt breach of contract claims against truck brokers and that those claims are also not preempted by ICCCTA and FAAAA. The case would continue. Traction Tire, LLC v. Total Quality Logistics, 2020 WL 6044179

The Northern District in California rejected an equitable indemnity cross-claim which was based upon an underlying breach of contract claim in a suit for cargo damages. When the plaintiff’s recovery against the two defendants was based solely upon a breach of contact, those same defendants could not seek equitable contribution from the motor carrier for the damaged shipment of pharmaceuticals. Underwriters at Lloyd’s v. Abaxis, 2020 WL 5816888

Although many defendants in a suit for damages to cargo sought summary judgment, only one was given the green light by the Northern District of New York. The court held that the plaintiff could proceed with a suit for actual and consequential damages against the defendant hired to arrange for the machine to move overseas, be transported in the U.S. and installed at destination. Whether the defendant was liable as a carrier or a broker remained to be resolved. Thatdefendant was not allowed to proceed against the carrier that held the machine in storage for a year and then transported it as there was no evidence that it was liable for storage damage and the third party plaintiff was not a party to the transport bill of lading. It was, however, permitted to proceed against the party who damaged the cargo at destination. Vanguard Graphics v. Total Press Sales, 2020 WL 6059872

A household goods agent was successful in seeking dismissal of a complaint seeking compensation for cargo damage in the Western District in New York. The court agreed that an agent has no direct liability to the homeowner and that the claim could be presented only against the designated motor carrier. Francione v. United Van Lines, LLC., 2020 WL 6048195

A motor carrier was unsuccessful in obtaining dismissal of a suit seeking damages for a cargo loss on the basis that the court lacked jurisdiction over the case. The Central District in Illinois held that the motor carrier was doing business in the state and that the jurisdiction and venue were proper. While the plaintiff agreed to the dismissal of all causes of action but the claim under the Carmack Amendment, the motor carrier would have to litigate the case in the filed jurisdiction. Thompson Tractor Co, Inc. v Daily Express, 2020 WL 6121158

Anyone writing cargo insurance for Velox Group? The Eastern District in California entered a default judgment against the motor carrier for a cargo loss, including costs, expenses and attorney’s fees in the suit by the truck broker under the Carmack Amendment. Traffic Tech v. Velox Group, 2020 WL 6194616

WORKER’S COMPENSATION
The Court of Appeals in Oregon considered the question of whether a truck driver (claimant) who sustained injuries while driving a truck that he leased from a trucking company for the sole purpose of driving for that company is a “subject worker” such that the company must provide workers’ compensation insurance coverage for his injuries. The court concluded that he was a subject worker and entitled to worker’s compensation, concluding that “under the plain meaning of the statutory text, a driver can “furnish” equipment to a carrier by providing the equipment in service of the carrier—here, by producing the equipment to haul loads for the carrier. A driver can have a “leasehold interest” in the equipment if the driver has the right to possess and use it. However, if the leasehold interest conveys no right of possession, use, and control beyond allowing the driver to furnish, maintain, and operate the equipment in service of the carrier, the lease is no more than a paper trail to give form to what is in substance actually the use of company equipment by a subject employee. In the matter of the compensation of SAIF Corporation v. Carl S. Ward 307 Or.App. 337, 2020 WL 6154233

Thanks for joining us,

Jean & Chad

September 2020

Autumn, here we come…

It’s officially Fall and one of my favorite seasons. I tend to prefer the cooler weather and enjoy the changing colors of the season. This is also the season where, under normal circumstances, CAB staff (and many of you) would be attending numerous fall conferences. I, for one, will very much miss those conferences where we were able to connect with old friends and meet new friends. I encourage you to take advantage of attending those same conferences if the virtual option is available. It may not be the same, but you will be supporting the organization and helping ensure the long term viability of that organization. I’ve had the opportunity to present and attend a couple of these, and they were certainly worth the time.

That being said, as the baseball season heads into the playoffs and we head into the home stretch of 2020, I encourage you to indulge in pumpkin-spice something (coffee, candles, beer, etc.), embrace the cooler temperatures, and enjoy what the season has to offer. There are many things to look forward to as the year winds down. Thanksgiving, the holiday season…the end of 2020. Don’t forget, 2021, and the promise of better things to come, is just around the corner!

The Motor Carrier Insurance Education Foundation (MCIEF) continues final planning for the 2020 virtual conference scheduled for November 9th through the 12th. The registration link is now available via the MCIEF.com website. The times each day are 12:30-4:40p EST.

MCIEF knows committing 4 hours for 4 consecutive days is difficult in our current environment so they will be airing a repeat of each four-hour session post-conference on the following dates: Session 1 – Tuesday November 17, Session 2 – Monday November 23 (Thanksgiving Week), Session 3 – Tuesday December 1 and Session 4 – Tuesday December 8

Anyone interested in registering or getting information on registration can contact Beth Medina at Beth@mcief.org or by phone at 239-997-4084.

CAB Live Training Sessions

Our live training sessions continue to garner great interest from our users. If you missed either of these webinars, they are available in the Tools menu under Webinars or by clicking here. This month we will present two new live training sessions:

Tuesday, October 13th @ 12p EST: Chad Krueger will present CAB for Underwriting. This is a popular session we’ve done in the past. The session will be an overview of tools, resources and enhancements. As the title suggests, it will be geared towards underwriting, although many of our other users find this session very informative.

Tuesday, October 20th @ 12p EST: Mike Sevret will be providing additional insight during our focused training, Understanding the Data and Where it Comes From. Mike will provide a brief overview of the depth and breadth of the numerous data sets CAB access and then provides to our users to help them understand relevant details about the motor carriers they are evaluating. CAB’s ultimate goal is to help our users “Make Better Decisions!”

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest focused training topics that you would like to see. We are looking forward to connecting with you during these sessions so don’t hesitate to ask questions!

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CAB’s Tips & Tricks: Closed Enforcement Cases Added

This month’s tip is focused on our webinar library. We often get asked if we have training resources for new or seasoned employees. The answer is a resounding yes and we do our best via our Live Training sessions to provide and update the webinar library based on what our users are requesting. Keep in mind, if you or a team member miss a Live Training, that session will be uploaded and available on our website within a day or two.

Another common question is where can I find the webinars/training resources? CAB’s Webinar library is easily accessible under the “Tools” menu at the top of every CAB page. All CAB users have access. From there click on “Webinars”. From there you will be able to see and register for our upcoming live training that is referenced above.

All of the pre-recorded webinars are available. We make it a point to continually update topics so the training remains fresh as we’re continually enhancing CAB’s tools and resources. The main webinars page provides the most recent webinars and their length for reference. There is a library and search functionality on the left side to find additional topics. Keep in mind, if you’d like to share a webinar with a team member, you can click the “Copy Link to Clipboard” icon and share the webinar. The individual webinar pages also provide a brief description of the webinar and there is an area at the bottom where you can submit a question. If you submit a question, we will reach out to you with the answer as soon as possible.

Our goal is to provide you with updated training resources to help you and your team make the most of your CAB service. If you have questions about the webinars or if you’d like to suggest a topic, please do not hesitate to reach out to us.

As with all of our tools & enhancements, we strive to present the data in a manner that will help provide additional clarity. We at CAB are constantly striving to improve our tools and resources to create value for our users. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are customer driven. Our goal is to help you Make Better Decisions!

THIS MONTH WE REPORT:

2020 Operation Safe Driver Week Results are in: Law enforcement personnel observed 66,421 drivers engaging in unsafe driver behaviors on roadways and issued 71,343 warnings and citations as part of Operation Safe Driver Week, a driver-focused safety initiative aimed at curbing dangerous driver behaviors through interactions with law enforcement. Operation Safe Driver Week took place July 12-18, 2020.

Officers issued a total of 71,343 warnings and citations throughout the week, comprised of 42,857 traffic enforcement violations and 28,486 other state/local driver violations. Commercial motor vehicle drivers were issued 10,736 warnings and citations for traffic enforcement violations. That’s 4,659 citations and 6,077 warnings. Passenger vehicle drivers received 17,329 citations and 14,792 warnings for traffic enforcement violations, totaling 32,121 warnings and citations. The top five traffic enforcement citations given to commercial motor vehicle drivers were: Speeding/violation of basic speed law/driving too fast for the conditions – 2,339, Failure to use seat belt while operating commercial motor vehicle – 1,003, Failure to obey traffic control device – 617, Using a hand-held phone/texting – 269 and Improper lane change – 122. For additional information, click here.

FMCSA Proposes Rule for Food Traceability: The FDA is proposing to establish additional traceability recordkeeping requirements (beyond what is already required in existing regulations) for persons who manufacture, process, pack, or hold foods the Agency has designated for inclusion on the Food Traceability List. The proposed rule, is a key component of the FDA’s New Era of Smarter Food Safety Blueprint and would implement Section 204(d) of the FDA Food Safety Modernization Act (FSMA). The proposed requirements would help the FDA rapidly and effectively identify recipients of those foods to prevent or mitigate foodborne illness outbreaks and address credible threats of serious adverse health consequences or death. At the core of this proposal is a requirement for those who manufacture, process, pack or hold foods on the Food Traceability List (FTL) to establish and maintain records containing Key Data Elements (KDEs) associated with different Critical Tracking Events (CTEs). The proposed rule will be available for public comment for 120 days following publication in the Federal Register. For additional information, click here.

CVSA Releases Short Video on the Future of Commercial Vehicle Safety and Enforcement: The Commercial Vehicle Safety Alliance (CVSA) released a new stop-motion video envisioning the future of commercial motor vehicle safety technology, inspections, and enforcement. This four-minute video takes the viewer to a future – near and far – that’s safer for all road users. The “Welcome to the Future of Commercial Vehicle Safety and Enforcement” video provides a clear and easy-to-understand visual presentation of today’s challenges and the solutions to those challenges, such as the deployment of proven safety technologies that improve transportation safety and prevent crashes. The informative video can be reviewed here.

U.S. Department of Transportation Requests Public Comment on a Pilot Program for Additional Hours of Service Flexibility: The FMCSA announced that it is seeking public comment on a pilot program to allow additional hours of service regulatory relief by allowing participating drivers to pause their on-duty driving period with one off-duty period up to three hours. FMCSA requests public comments on a new pilot program to allow drivers one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truck driver’s 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift. The comment period will be open for 60 days. To review the proposed pilot program, click here.

The Number of Inspections Continues to Increase: The number of roadside inspections continues to increase every month since the beginning of the COVID-19 pandemic. The number of inspections conducted in July of 2020 was just under 224,000 after hitting a low of just over 70,000 in April. The last full month of inspections would have been February which had a total of 269,000 inspections. The average number of inspections from the prior 11 years was just under 285,000. Therefore, even with Emergency Declarations continuing through the end of the year, inspections sit at about 80% of the prior 11 year average.

New Hours of Service Rules take effect September 29, 2020: On June 1, 2020, the Federal Motor Carrier Safety Administration (FMCSA) published the Hours of Service final rule that revises the HOS regulations in 49 CFR Part 395, which prescribe driving limits for commercial motor vehicle (CMV) drivers. The rule includes four changes designed to offer drivers greater flexibility, while maintaining the highest safety standards on our Nation’s roads, and was developed based on extensive public and industry input. The HOS Final Rule Fact Sheet is available here. Not surprisingly a lawsuit has been filed to invalidate the rules. Stay tuned.

FMCSA Proposes Under 21 Driver Pilot Program: The Federal Motor Carrier Safety Administration (FMCSA) wants public comment on a pilot program allowing drivers ages 18-20 to haul interstate commercial freight. “This action will allow the Agency to carefully examine the safety, feasibility and possible economic benefits of allowing 18-to 20-year-old drivers to operate in interstate commerce,” said FMCSA Deputy Administrator Wiley Deck in announcing the proposed pilot project Friday. “Safety is always FMCSA’s top priority, so we encourage drivers, motor carriers and interested citizens to review this proposed new pilot program and share their thoughts and opinions.” The proposed program allows drivers falling within one of two categories to participate: Eighteen-to 20-year-old CDL holders who operate a commercial motor vehicle (CMV) in interstate commerce while taking part in a 120-hour probationary period and a subsequent 280-hour probationary period under an apprenticeship program established by an employer, or Nineteen-and 20-year-old commercial drivers who have operated CMVs in intrastate commerce for a minimum of one year and 25,000 miles. For more information, click here.

Don’t Forget to tell your Customers about the Crash Prevention Determination Program: The CPDP allows carriers and drivers to submit evidence that an eligible crash was not preventable. If FMCSA determines the crash was not preventable, it will be listed on the Safety Measurement System (SMS), but not included when calculating a carrier’s Crash Indicator Behavior Analysis and Safety Improvement Category (BASIC) measure in SMS. Additionally, the not preventable determinations will be noted on a driver’s Pre-Employment Screening Program (PSP) report. CAB’s BASICs and ISS calculations will reflect these DataQs. The program allows for crashes back to August 1, 2019 to be eligible. The CPDP program is very important for the industry as removing non-preventable crashes from the Crash BASIC’s calculation could lower the percentile. Click this link to watch CAB’s recent BASICs Calculator™ & FMCSA’s New Crash Preventability Determination Program webinar. The BASICs Calculator™ and the CPDP are two very powerful tools that can help your customer’s overall risk profile.

Freight Volumes Expected to Grow 36% Between 2020 and 2031: The American Trucking Associations released its latest Freight Transportation Forecast: 2020 to 2031, which is conducted annually by IHS Markit, showing that despite contraction in 2020, the long-term trend for both trucking and overall freight shipments is still positive. Among the findings in this year’s Forecast: +Total freight volumes in 2020 are likely to collapse by 10.6% to 14.6 billion tons, although truck freight volumes falls a smaller 8.8%. +Trucking volumes are expected to rebound in 2021, rising 4.9% next year and then growing 3.2% per year on average through 2026. +Overall freight revenues in 2020 will total $879 billion, rising to $1.435 trillion in 2031. ATA Freight Transportation Forecast: 2020 to 2031 is available via ATA Business Solutions.

CASES

AUTO

Interested in how plaintiff’s attorneys use words to create nuclear verdicts? The Court of Appeals in Texas reversed, on all issues, a judgment of $26,311,337.09 in actual damages and exemplary damages in the amount of $5,371,674.18 for what was essentially a minor impact accident where the truck driver tested positive for marijuana and other drugs. The court concluded that while liability existed the damages were unreasonable. Interesting read on how the arguments are made to convince the jury that excessive verdicts are warranted. FTS International Services, LLC v. Patterson, 2020 WL 5047913

Diversity was lost and a case remanded back to Cook County, Illinois by the Northern District in Illinois when the plaintiff brought in the third party company who provided the motor carrier with the driver. While the motor carrier conceded its vicarious liability for the actions of the driver the contract between the two companies raised questions as to who controlled the driver. Plaintiff was allowed to amend and add the non-diverse party and get the case back to the original venue. Vargas v. Lava Transport, 2020 WL 5440011

Plaintiff’s failure to properly identify an allegedly crucial witness, who would have testified that the tractor was in disrepair before a fatal truck accident, resulted in his inability to have the witness testify at trial. The Missouri Court of Appeals upheld the defense verdict. Tate v. Dierks, 2020 WL 5637620

Impairment while operating a commercial vehicle was an issue in the Southern District of Illinois. While the driver’s post-accident drug test was subject to discovery as the driver had released the results to his employer and the DOT, the same was not true for his general medical records. The court concluded that the driver only defended himself against Plaintiffs’ allegations that he was intoxicated and he never affirmatively placed his medical condition at issue. Accordingly he was entitled to continue to assert his medical privilege Thompson v. Crisp Container Company, 2020 WL 5292043
A driver was not permitted to collect uninsured medical benefits under policies issued to the motor carrier to whom he had leased his vehicle. The First Circuit Court in Louisiana reversed a trial court ruling and concluded that the motor carrier had properly rejected the coverage so it was not available to the driver. Barras v. Jackson, 2020 WL 5592702
A meeting of the minds was not present when the parties were discussing settlement and therefore there was insufficient evidence that the settlement was finalized. The Northern District in Mississippi held that the adjuster for the motor carrier’s insurer had not established that the parties intended the negotiations to have culminated in settlement and denied a request to enforce a settlement. Brown v H&H Transportation. 2020 WL 5666705
 A leasing company’s efforts to file an interpleader with the amount of insurance afforded to the lessee under the lease could not be used by the leasing company to compel all claims for direct liability to be asserted in that interpleader. The District Court in Arizona agreed that the interpleader strategy was not an appropriate use of the federal interpleader statute when potential tort claimants would prefer to proceed elsewhere. The case was permitted to proceed only on the issue of who was entitled to the insurance proceeds afforded to the leasee. U-Haul Company of Arizona v. Lee, 2020 WL 5645189
A person cannot be an employee and independent contractor of the same entity at the same time. However, being an independent contractor of one entity does not preclude a person from simultaneously being an employee of another entity, which can include one’s self. The Court of Appeals in Michigan held that the truck driver was not an employee of the trucking company who was leasing the vehicle, he was an employee of himself. However, as the motor carrier insured the vehicle, it was determined to be the insurer of highest priority. The trial court decision was overturned. Miclea v. Cherokee Insurance Co., 2020 WL 5580140
The First District in Florida reversed a directed verdict in favor of the plaintiff for just over $8 million and remanded the case back for a new trial. The court held that whether the plaintiff was at fault for the truck accident, due to his inattention, was a question of fact which was within the province of the jury. Vitro America, Inc. v. NGA, 2020 WL 5627114

The date that a vehicle became an owned vehicle for the purposes of coverage under a policy remained a question of fact in the District Court in Ohio. The court denied summary judgment on that issue, but did grant partial summary judgment that the insurer owes a duty of indemnification under the MCS-90 Endorsement only for actual judgments against the trucking company, and no other party, up to the endorsement’s $750,000 limit. Artisan & Truckers Casualty Co. v. Miller, 2020 WL 5203478

Round and round it goes. The Court of Appeals in Kentucky reversed the summary judgment granted to the motor carrier who claimed that there was circuitous indemnity. The motor carrier claimed a right of indemnity against a settling defendant and the plaintiff has agreed to indemnify the settling defendant against claims by other parties. The court held that the respective liabilities of the settling and non-settling defendants were not plain in either case. Therefore, it could not be said as a matter of law that the settling defendant and non-settling defendants were not in pari delicto, so the non-settling defendants were not entitled to summary judgment based upon circular indemnity. The court also held that summary judgment was even less appropriate because of the heightened FMCSR duties imposed upon the carrier and driver and the evidence from which a reasonable jury could conclude they failed to satisfy those duties. McGuffey v. Hamilton, 2020 WL 2038044

Make sure you assert venue defenses or run the risk of waiving them. The Court of Appeals in Indiana addressed whether the location of a registered agent was enough to establish a basis for venue. While the Indiana legislature had concluded that it is not, and applied the rule retroactively, the defendant’s failure to raise the issue initially was determined by the court to be a waiver of the venue defense. Hammond v. Gillespie, 2020 WL 5241241

An insurer was unsuccessful in keeping its declaratory judgement action in place against a trucker in Texas. As the issue arose out of a policy which was issued to a Michigan motor carrier the fact that the accident occurred in Texas was not enough to confer jurisdiction. The Northern District in Texas also agreed that having an agent for service of process in Texas was not enough. While the drivers could remain as defendants, the named insured was dismissed from the suit. Nat’l Cas. Co. v. KT2, LLC, 2020 U.S. Dist. LEXIS 169223

Efforts by an intervening insurer to remove a case to federal court failed in the Western District of Missouri. When the truck broker had not timely removed the personal injury accident filed against it, its insurers would not get a second bite at the apple when they intervened in the case. Rothrock v. Capital Logistics, 2020 U.S. Dist. LEXIS 168178

A successful summary judgment for a motor carrier in the Southern District of West Virginia. The court agreed that there were no facts to support a claim for punitive damages or negligent training, supervision, and retention. Negligent infliction of emotional distress for a spouse would also not stand when the spouse was not present at the accident scene. Roush v. Schneider National Carriers, Inc., 2020 WL 5031998

The Court of Appeals in Texas upheld the grant of summary judgment to a motor carrier when the plaintiff failed to timely submit any opposition to the motion. The court agreed that the trial court did not abuse its discretion in rejecting a request to file a late response. The co-defendant, the owner of another vehicle involved in the crash, also got summary judgment as there was no evidence that the driver, amongst other things, was acting in the course and scope of his employment at the time of the accident. Rosas v. Vela, 2020 WL 5056526

Despite waiting 5 years after the accident to bring claims for willful and wanton conduct in the selection of a truck driver, the Northern District in Illinois held that there was a sufficiently close relationship between Plaintiff’s original negligence claim and his new willful and wanton hiring, entrustment, and retention claims to permit the new causes of action to relate back to the original negligence claims. Plaintiff alleged that the employer knew the driver was unfit to drive a truck commercially based on evaluations and reviews from former employers, the fact that he had failed multiple drug tests while on duty, had several “at fault” automobile accidents while working for the carrier, had been terminated for chronic drug use and then rehired in violation of the motor carrier’s policies, and had repeatedly “ ‘blacked out on the road’ and experienced a ‘loss of consciousness behind the wheel. Kleronomos v. Aim Transfer & Storage 2020 WL 5365976

The Supreme Court in Indiana upheld a jury instruction that a plaintiff failed to mitigate damages after being injured in a truck accident. While seriously injured in the accident, plaintiff’s pre-existing condition worsened after the accident. However it was determined that he took limited steps to mitigate his damages and was ultimately awarded only $40,000 in damages. Humphrey v. Tuck, 2020 WL 5361974

One accident or three? The Southern District of Georgia agreed with the insurer that its payment of policy limits for one accident was enough and that it did not owe a second limit when there were additional impacts. In this case, each of the claimants’ injuries was caused by “repeated exposure”—i.e. repeated collisions—to a single condition—the overturned truck. Milford Casualty Ins. Co. v. Meeks, 2020 WL 5351048

When one insurer pays more than it believes it owes, 2.9 million, what does it need to do in order to get the money back from a second insurer? The Southern District of California is considering that issue. The court rejected efforts by the second insurer to have causes of action for equitable indemnity and contribution dismissed and also considered the impact of an assignment of the first insurer’s claims to the insured. It concluded that all of these causes of action should proceed to be litigated. Skanska USA Civil West California District v. National Interstate Ins Co. 2020 WL 5294713

Target was unable to obtain summary judgment on a suit for injuries arising from an accident possibly involving an unidentified Target trailer. The Western District of Missouri concluded that there were too many questions on whether Target was acting as a motor carrier, or sufficiently controlled the actions of third party carriers, to allow judgment at this stage of the litigation. Trekell v. Target Corp., 2020 U.S. Dist LEXIS 170044

The issue before the Court of Appeals was whether a common-law exception to the vicarious liability doctrine prevented a plaintiff from benefiting from the savings statute when the plaintiff dismissed an action against the motor carrier for the actions of the driver and then refiled against the motor carrier. Generally when the plaintiff’s claim against the driver is procedurally barred by operation of law before the plaintiff asserts the vicarious liability claim against the motor carrier the action will not stand. The court affirmed the denial of the motion to dismiss concluding that the plaintiff was entitled to the benefit of the savings clause. Helyukh v. BuddyHead Livestock & Trucking, Inc., 2020 WL 5092827

Who is responsible when the cargo, bales of cardboard, fall off the trailer when the doors are opened and cause an injury? The Southern District in New York concluded that there were questions of fact and denied judgment to the loader. There remained questions as to whether Defendants’ loading practices created a risk by not following guidelines and, if so, whether that risk was patent to Plaintiff. Uzhca v. Wal-Mart Stores, Inc. 2020 U.S.Dist. LEXIS 167662

These multi-vehicle truck accidents require a road map to figure out who did what. The Eastern District of Louisiana took the time to figure it out and granted summary judgment to one motor carrier. The court held there was no evidence that the truck ever left its lane of traffic and never made contact with the plaintiff’s vehicle. Plaintiff could not show a prima facie claim for recovery. English v. Edmund, 2020 U.S. Dist. LEXIS 170579

Summary judgment was denied to a motor carrier in the Southern District of Illinois. When the plaintiff was fatally injured when he struck a disabled tractor trailer stopped in the lane of traffic the court held that the motor carrier had not established any basis for summary judgment simply because the plaintiff did not break before hitting the tractor. There were clearly questions of fact which remained to be resolved. Archibald v. Orbit Express, 2020 WL 5237095

Does the MCS-90 apply when the motor carrier is not using the vehicle in a for hire capacity in interstate commerce at the time of the loss? The Middle District of Louisiana concluded that it did not, affording judgment to the insurer on that issue. However, whether the unscheduled vehicle was a temporary substitute for a scheduled vehicle remained a question of fact. Cutrer v. TWT Transport, LLC2020 WL 5441238
The truck broker’s efforts to remove a case to federal court under FAAA failed and the case was remanded by the District of New Mexico. The court held that the absence of an express or implied federal cause of action under the FAAAA indicated that Congress did not intend for the FAAAA to serve as the basis for removal. The court did not consider whether FAAAA preempted claims against brokers as it concluded that it had no jurisdiction to do so. Youngers v. ATF Transp., Inc., 2020 U.S. Dist. LEXIS 165809

Plaintiff’s efforts to keep a litigation in the motor carrier’s home state was unsuccessful. The Court of Appeals in Arizona upheld the dismissal of the suit on the grounds of forum non conveniens when the accident and all other critical facts occurred outside the state. Both public and private factors strongly weighted in favor of dismissal. Garrett v. Swift Transp. Co. of Ariz, LLC, 2020 Ariz. App Unpub LEXIS 946

CARGO

When the fight over a limitation of liability is between two motor carriers it is harder to defeat the limitation asserted by the defendant. The Southern District in Indiana held that the truckload pricing agreement between the parties was valid even when the defendant brokered the load to another carrier, where it was stolen. The court also declined to apply the material deviation doctrine to a Carmack claim to defeat the limitation. Cortrans Logistics v. Landstar Ligon, 2020 WL 5702186
Preemption continues to be an issue. The Western District in North Carolina agreed with the household goods carrier, dismissing all state law claims for damage to household goods. The claim under the Carmack Amendment would proceed. German v. Bekins Van Lines, Inc., 2020 WL 5204046
The same held true in the Southern District in Florida where the court recommended dismissal of all causes of action which were outside of the Carmack Amendment. The cargo insurer’s addition into the suit as a plaintiff, although late, was deemed to relate back to the initial filing and was permitted to proceed. IAG Engine Ctr. Corp. v. Cagney Global Logistics, 2020 U.S. Dist. LEXIS 163499
The truck broker’s forum selection clause was upheld in the Eastern District of Pennsylvania. The court held that regardless of whether the plaintiff claimed the defendant was acting as a broker or a carrier, the parties contractually agreed that suits would be brought in Ohio. The cargo claim against the broker was dismissed. Caulfield v. D&F Transport, LLC., 2020 WL 5076803
While filing a motion to dismiss on preemption grounds convinced the plaintiff to amend the complaint to remove most state causes of action, not all were gone. The Southern District in Georgina held that the remaining breach of contract claim against the motor carrier, which was based upon a third-party beneficiary claim under a different contract, makes a difference for the preemption analysis and allowed that claim to proceed. Caravels v. ATS Logistics Services, 2020 WL 5199263

Unfortunately for a trucker discovery would not be stayed pending its motion to dismiss. The District Court in Connecticut held that even if it later granted the motion to dismiss the defendant would still be subject to non-party discovery on ths cargo claim so delaying the inevitable was not helpful to anyone. Covenant Imaging v. Viking Rigging & Logistics, Inc. 2020 WL 5411484

WORKER’S COMPENSATION

Worker’s compensation was the exclusive remedy for a co-driver under Louisiana law, which required the Middle District of Alabama to dismiss most of the causes of action against the motor carrier employer. However the court did give the plaintiff an opportunity to amend the complaint to assert sufficient facts to support a claim that the actions of the driver, driving while on drugs, constituted an intentional act, removing that claim from the purview of worker’s compensation. Waye v. Flat Creek Transportation, 2020 WL 5031995

MISC

A motor carrier was not permitted to seek recovery from its insurance agent based upon allegations that the COI did not indicate that short term rental vehicles were not covered for collision, especially when the plaintiff had never asked for the coverage. The Court of Appeals in North Carolina held that there was no misrepresentation or reliance made by the agent to the motor carrier. DC Custom Freight, LLC v. Tammy A. Ross & Associates, Inc., 2020 WL 5159972

The Appellate Court in California held a specialized insurance broker to a higher standard of care. The court reversed the trial court decision, holding that evidence of specialization in inland marine creates a presumption that an insurance agent/broker anticipates their clients will rely on their acknowledged expertise and supports imposing an extended duty. Be forewarned. Murray v. UPS Capital Insurance Agency, Inc., 202 Cal. App. LEXIS 866

Thanks for joining us,

Jean & Chad

© 2020 Central Analysis Bureau