Happy March!

Spring is in the air (it is just a little muffled by the snow down here on the Jersey shore). It is the start of the conference season and we are looking forward to catching up with many of you! I will be at the TIDA cargo session the first week of April and BMUSF in May – hope we get to catch up. Registration for the annual IMUA meeting is open. Tiana and I will be there. A good time is always had by all and we learn a lot about new issues in the industry. Come along and bring a pal – check www.imua.org for more information.
This month we report:

ELD NEWS. The time has come! April 1, 2018 starts the actual enforcement of the ELD mandate. Out of Service orders and CSA violation points will begin being issued. The driver in violation will remain out-of-service for 10 hours in accordance with Commercial Vehicle Safety Alliance criteria. Drivers then be allowed to travel to the next scheduled stop and are not allowed to be dispatched again without an ELD. If the driver is dispatched again without an ELD, the motor carrier will be subject to further enforcement action. The FMCSA will also extend by 90 days a waiver for agricultural commodities and livestock haulers to comply with the electronic logging device mandate. Eligible motor carriers to handle agricultural commodities as defined under 49 CFR 395.2.

CVSA. The CVSA International Roadcheck will take place June 5-7. This year’s focus is on hours-of-service (HOS) compliance. Inspectors will primarily conduct the North American Standard Level 1 Inspection, which is a 37-step procedure that includes an examination of both driver operating requirements and vehicle mechanical fitness. The vehicle inspection includes checking brake systems, cargo securement, coupling devices, driveline/driveshaft components, exhaust systems, frames, fuel systems, lighting devices, steering mechanisms, suspensions, tires, van and open-top trailer bodies, wheels, rims and hubs, and windshield wipers. Additional items for buses include emergency exits, electrical cables and systems in the engine and battery compartments, and seating. Drivers are asked to provide their operating credentials and hours-of-service documentation, and will be checked for seat belt usage. Inspectors will also be attentive to apparent alcohol and/or drug impairment.

AUTONOMOUS VEHICLES. As we are all aware, autonomous vehicles have been back in the news with the recent vehicular accident. Uber Freight is temporarily suspending its autonomous vehicle operations — including Uber Freight. The Pipeline and Hazardous Materials Safety Administration has requested information on the use of automated technologies in the transportation of hazardous materials as it looks forward to introducing regulations permitting the project to move forward. The request for comments is meant to gather insight from industry experts and public organizations on how to best ensure these regulations consider automated vehicles in the transportation of hazardous materials.

TOW NIGHTMARES. We all know about the nightmare bills that we see with tow bills. The ATA recently completed a survey of truckers and concluded that there are reports of “outrageous overcharging” for non-consensual towing of damaged heavy-duty trucks and trailers removed from crash scenes are on the rise in some states. Non-consensual towing generally occurs when a police officer on the site of a crash contacts a towing company, often from a rotation list, to clear the roadway of damaged vehicles, trailers and even cargo. The ATA reports notes that fees for a tow can hit $50,000, although we note that the numbers are often much higher. Only 10 states have enacted legislation addressing non-consensual tows.

DRIVER SHORTAGE. The Developing Responsible Individuals for a Vibrant Economy, or DRIVE-Safe Act, was introduced in the House which might allow drivers ages 18 to 21 to driver motor vehicles. The bill proposes a two-step program for prospective young drivers to complete once they obtain a commercial driver license. The drivers would be required to log 400 hours of on-duty time and 240 hours of driving time with a licensed carrier. On the other hand the ATA’s Trucking Activity Report, states that the annualized turnover rate at large truckload fleets – those with more than $30 million in revenue – fell seven points to 88% in the fourth quarter. Turnover at small truckload fleets fell four points to 80%.. Overall the turnover rate was still 14 points higher than a year earlier.

Current Cases
Cargo

Reefer breakdown coverage under an industry standard motor truck cargo form was the subject of a coverage action in the District Court in Oregon. Although the court ultimately held that neither party was entitled to summary judgment the decision details the issues which must be addressed when evaluating the refrigeration breakdown coverage and the requirement for maintenance records. A must read for our cargo people. New Hampshire Insurance Co. v. D.M. Freight Services, Inc. 2018 WL1095553

Walk like a duck, talk like a duck, are you a duck? The 11th Circuit reversed a trial court decision that the defendant was liable as a carrier for a cargo loss when it brokered the shipment to a different motor carrier. The court held that there was a question of fact as to whether the defendant assumed liability as a carrier which made summary judgment inappropriate The court also held that the limitation of liability that that the downstream carrier had with the broker was enforceable against the shipper. As the broker carrier agreement referred to the bill of lading, which had a $1.00 per pound limitation, that was the maximum amount the shipper could recover from the downstream carrier. Essex Insurance Co. v. Barrett Moving & Storage, 2018 WL 1407067

Who is responsible for fraud when a shipment disappears after rerouting by an imposter? The Southern District in California held that there was a question of fact as to whether the defendant would be considered a carrier and whether it was subject to liability under the Carmack Amendment. The court dismissed the complaint but granted the plaintiff an opportunity to allege a claim under the Carmack Amendment, as well as a possible claim for an exception to Carmack on the theory that the loss involved an international shipment under a through bill of lading. Meadowgate Technologies v. Fiasco Enterprises, Inc., 2018 WL 1400678

Auto
The District Court in Maryland refused to permit a plaintiff to amend a complaint to allege a cause of action against a truck driver and an alter ego company when the statute of limitations had run. The court held that the plaintiff failed to show that the proposed defendants ever knew that they were going to be brought into the action and so the court would not allow the complaint to relate back to the original filing date. White v Date Trucking, 2018 WL 999963

Simply driving a truck at 70 mph and hitting someone does not give rise to a claim for punitive damages. The Western District of Pennsylvania dismissed a plaintiff’s claim for punitive damages against a truck driver when there were insufficient factual allegations in the complaint to support such a claim. Elmi v. Kornilenko, 2018 WL 1157996

When the insurer is still pursuing an appeal of the decision in an underlying action the injured plaintiff is not permitted to pursue its bad faith claim against the trucker’s insurer. The Magistrate in the District Court in Colorado recommended dismissal of the suit. Kuzava v. United Fire & Casualty, 2018 WL 1152266

A truck driver who was hauling jet fuel at the time he was struck by another motor carrier lost his claim for lost earnings against the motor carrier. While the driver claimed that he was no longer able to transport hazardous materials, and had to take a job hauling other freight, the Western District of Oklahoma held that plaintiff failed to establish a compensable claim for recovery. Provo v. Bolt Express, 2018 WL1096860.

Oklahoma law does not allow for additional causes of action against a trucking company when it has already accepted vicarious liability for the actions of the driver. The District in Oklahoma dismissed those additional causes of action against the trucking company, but did allow a claim for punitive damages to continue. Bales v Green, 2018 WL 1144980

Is a trucking company liable for an accident when the pilot car struck another vehicle? The Eastern District of Louisiana held that there were questions of fact as to whether the motor carrier controlled the actions of the pilot car and denied the motor carrier’s request for summary judgment. Duplantis v Cochran, 2018 WL 1172955

Over in California the court affirmed the denial of a motion for a JNOV when the trial resulted in a defense verdict in favor of the trucking company. Unfortunately the Fourth District of California did allow for a new trial on the issue of negligence and accepted the trial court’s evaluation that the jury should clearly have reached a different decision on negligence. Gee v. Fong, 2018 WL 1044950

The Northern District of Indiana held that a trucking company that hires another trucking company to provide steel hauling services will not be responsible for injuries to the driver. The driver claimed that he was injured because the equipment provided was defective. The court held that the defendant did not exercise any significant control over the operation. Thomas v. Burnham Trucking, 2018 U.S. Dist. LEXIS 39536

An indemnitee’s action against the trucker’s insurer was determined not to be ripe in the Eastern District of Pennsylvania. The court held that while the insurer was providing a defense to the indemnitee, even under a reservation, there was no basis for a declaratory judgment action on the duty to defend. The issue of indemnity was also not ripe as the underlying action was still being litigated. The court also held that a claim for negligence against the insurance agent would fail as the indemnitee did not show that it was a third party beneficiary of the relationship between the trucker and the agent. Republic Servs. Of Pa v. Caribbean Operators, 2018 U.S. Dist. LEXIS 41672

UPS was successful in its request for summary judgment in the Northern District of Mississippi on the issue of gross negligence and punitive damages in an action arising from a fatal truck accident in which UPS was a second vehicle to strike plaintiff. While the court left open the issue of whether the UPS driver was negligent it noted that if not constrained by rules deferring to plaintiff on questions of fact, it would have found in favor of UPS on that motion too. Pennington v. UPS Group Freight, 2018 U.S. Dist. LEXIS 41569

A truck driver was unsuccessful in his pursuit of a claim for injuries caused when his tractor trailer was struck by a train while he was on a railroad track. The Court of Appeals in Texas upheld the jury verdict in favor of the rail carrier, concluding that it was reasonable to consider the fact that the driver did not raise the low boy before crossing the track and the fact that the driver may not have been paying attention to the oncoming train while he was trying to raise the trailer. Robertson v. Union Pacific Railroad, 2018 WL 1414498

A default judgement entered against a truck driver was vacated in the Middle District of North Carolina. The driver, who was non-English speaking and incarcerated tried to file an answer by sending a letter to counsel. The court held that the defendant should be given an opportunity to litigate liability. Thomas v. Allen Lund Co., 2018 U.S. Dist. LEXIS 40493

Speaking of non-English speaking drivers, the Eastern District in Missouri denied a motor carrier’s request for summary judgment on a punitive damages count when the driver involved in the accident did not speak English. The court held that failure to follow motor carrier regulations and industry standards, including language requirements, could give rise to punitive damages. The punitive damages claim against the driver was dismissed. Pugh v. JunQing, 2018 WL 1406589

Even though plaintiff filed a direct action against a trucker’s general liability policy more than one year after it obtained judgment against the motor carrier, the Court of Appeals in Louisiana overturned the trial court’s dismissal of the action. The court held that the plaintiff should be given an opportunity to discover whether there was a basis for an exception to the statute of limitations. Russell v. Jones, 2018 WL 1250223

Who is responsible when the tires come off the truck and strike another vehicle? In the Western District of Kentucky the plaintiff was permitted to amend the complaint to allege claims for negligence, grossly negligent supervision and punitive damages against the repair facility that had worked on the tires shortly before the loss. Auto-Owners Insurance Co. v. Aspas, 2018 WL 1403902

What information is discoverable from a trucking company? The Supreme Court of Alabama held that a trucker would not be obligated to produce its bills of lading as they contained confidential information. However absent evidence that operations and safety manuals contained trade secrets those documents would have to be released. Ex Parte Industrial Warehouse Services, 2018 WL 1126576

What about the insurer’s documents? The District Court in Kansas was asked about the production of the claim file from a liability insurer for a trucker in the personal injury action. While the court did not specifically address this claim file it did conclude that the claim file was relevant and potentially discoverable, detailing the requirements needed to establish a basis for refusing to release the documents in the claim file. Kosjer v. Coffeeville Resources Crude Transportation, 2018 WL 1151515

The Western District in PA held that there were question of fact on whether plaintiff could recover for injuries suffered when he hit the defendant’s truck which was stopped on the roadway. While the defendant had failed to post warnings that he was stopped plaintiff may have been given enough time to stop. The Court also held that a co-driver could not be liable for negligent supervision or training of the operator. The plaintiff’s claim for negligent entrustment against the motor carrier also failed when the only evidence that the plaintiff presented was that the driver was a new driver. The court also dismissed claims for negligent maintenance, negligent selection and negligence per se. Fakes v Terry, 2018 WL 1382513

Worker’s Compensation/PIP
After years of litigation the Court of Appeals in Louisiana upheld a judgment which compelled a trucker to pay disputed premiums for owner-operators and independent contractors and dismissed the motor carrier’s claim for coverage under a contingent policy issued to the driver. The Court also held that other related entities were also liable for the owed premium. Louisiana Safety Association v. Will Transport, 2018 WL 1078161

Was a truck driver entitled to PIP benefits under the trucker’s policy for injuries suffered when there was an explosion while he was outside the truck? The Court of Appeals in Michigan held that he was not entitled to the benefits as he was not occupying the truck at the time of the explosion. Odeh v. Sentry Insurance Co., 2018 WL 1403572

The Appellate Court in Wisconsin upheld the denial of Worker’s Compensation benefits to a truck driver who claimed work related injuries because he drove a 20 foot straight truck with a solid bench and no cushioning which, together with rough suspension, caused him to bounce out of his seat and suffer lower back pain. That, coupled with an allegation that he injured when delivering heavy plant carts, was not enough to get him an award. Newbolds v. Ill, Workers’ Comp. Comm’n, 2018 Il. App. 2d 170301WC-U

A worker’s compensation insurer was granted judgment that it was not obligated to provide coverage for an insured who failed to obtain worker’s compensation coverage for out of state operations. The Northern District of Illinois held that the motor carrier took its own risk when it failed to obtain the appropriate coverage for out of state operations and even a subsequent audit which indicated out of state operations would not estop the insure from denying coverage. Hartford Underwriters Ins. Co. v. Worldwide Transportation Shipping Co., 2018 WL 1378177.

See you next month!

For a short month this is a fairly long report.  After the holidays, and the January ramp up it seems like everyone is hard at work trying to get things done before the next holiday season.   There was a lot of news and the Courts were quite prolific this month. We have many cases to report, including a decision in a tow case and one on a broker bond.  We have reported them separately so they are not missed by one group or the other.

This month we report:

ANTI-INDEMNITY LAWS – Over the years we have reported on the efforts to limit clauses in trucking contracts which allow for unlimited indemnity.   Rhode Island is once again trying to gets a law passed. A bill has been introduced which prohibits indemnification clauses in trucking contracts when the shipper is negligent. 45 states have already acted to prohibit these provisions.  Delaware, Mississippi, New Hampshire and Vermont continue to allow these provisions.

ELD RULES – The subject of ELDs continues to be contentious as groups seek exemptions and roll backs before the April 1 target date.  4 states, South Dakota, Missouri, Tennessee and Idaho have introduced proposals which impact enforcement of ELD, some asking for repeal of the mandate.  Some are proposing not funding inspections for ELD violations and/or instructing officers not to transmit violation data to the DOT.

DRIVER DETENTION – The DOT has released a study that concludes that driver detention costs more than $1 billion a year and creates a safety issue.  A 15-minute increase in average down time increases the average expected crash rate by 6.2 percent which could translate into the possibility of 6,500 more crashes.  Detention results in fatigue.  A copy of the Inspector General Report can be viewed here.

CARGO THEFT – CargoNet reported that 2017 was one of the safer years, with only 741 reported cargo thefts, with an average value loss of $196,109.  They also report 1,479 stolen tractors, trailers or intermodal chassis and containers.  Food and beverages continue to be the most commonly stolen products. Unattended cargo over the weekend was, as you would expect, a common occurrence.

CRASH PREVENTABILITY PROGRAM – As you may recall from earlier Bits and Pieces, the FMCSA has implemented a program to help determine if certain crashes were preventable.  2500 submissions have been made, but the program has run into some problems. Apparently users are not selecting the appropriate categories when filing the DataQ. The DOT has provided some additional guidance that you may wish to pass along to your motor carrier if they are trying to have a crash evaluated. You can direct them to this Federal Register link.

TOUGH JOB – Truck driver is a tough job to fill, according to CareerCast’s 2018 Toughest Jobs to Fill report. It reports that a truck drivers’ annual median salary as $41,340 with a growth outlook of 6%. By 2026, there will be an additional 108,400 positions available.  This report supports the industry concern for the growing driver shortage.

NTSB GUIDANCE – The NTSB released its report and recommendations following a March 2016 accident involving a cargo tank vehicle loaded with propane. The investigation discovered issues with loading of the cargo tank, Inspection and testing of the tank, and qualification and training of cargo tank inspectors. The agency issued six safety recommendations to the FMCSA and the Pipeline and Hazardous Materials Safety Administration (PHMSA).  The FMSCA was told to consider whether to enhance enforcement of cargo tank requalification procedure, and was instructed to work with the PHMS to incorporate, by reference into the Hazardous Materials Regulations, inspector training requirements of industry cargo tank inspection code. The PHMSA was told to consider elimination of a grandfather provision for less qualified inspectors, revision of the definition of registered inspector and ensure that all persons certified to inspect cargo tanks are qualified and competent, and to implement regulations that provide for suspension and revocation of cargo tank inspector registrations.  You can view the report here.

CASES:

AUTO:

Including the motor carrier in a declaratory judgment on the applicability of the MCS-90 will not defeat the insurer’s right to remove the case to federal court.  The Southern District of Virginia held that the motor carrier was a nominally and fraudulently joined party and refused to remand the case back to state court.  (Lyles v. FTL, Ltd, 2018 WL762467)

The Graves Amendment was held inapplicable to causes of action asserted against the owner of a vehicle leased to a motor carrier which was involved in an accident. The Court held that as the suit alleged that the driver was the agent, servant or employer of the owner the Graves Amendment did not permit dismissal of the cause of action. Moreover when there was a close relationship between the owner of the vehicle and the motor carrier there was sufficient evidence to support a claim that it was an alter ego of the carrier.  The Court also refused to dismiss a punitive damages claim against the driver.  (Parker v. Miller, 2018 WL 898981)

For all of you contingent auto insurers out this is a big win!  The Northern District of Illinois held that FAAAA preempts claims against a truck broker for negligent hiring of a motor carrier.  (Volkova v. CH Robinson, 2018 WL 741441)

In the Middle District of Georgia the court held that it would not dismiss the action against Fed Ex under the Rooker-Feldman doctrine which prohibits re-litigation of a case already addressed in state court. The court held that the state court’s dismissal of a suit for lack of personal jurisdiction was not a final state court judgment triggering the applicable of the doctrine.  Discovery on the issue of jurisdiction was permitted to proceed. (Glass v. Fed Ex., 2018 WL 813594)

Interesting issues were addressed by the court following the trial on a multi truck accident.  The Seventh Circuit upheld a jury verdict involving claims by plaintiff and defendant against each other, as well as a claim by the plaintiff’s son, who tried to rescue his father after the accident. The Court upheld the trial court’s jury instructions, also concluding that the percentage of liability of the plaintiff for his own injuries could not be used by the defendant to limit the recovery of the rescuer son. (Karahodzic v. JBS Carriers, 2018 WL 741698)

The Northern District in Indiana refused to dismiss a plaintiff’s complaint against a truck driver and his employer despite excessive delays in serving the parties or pursuing the litigation.  The court held that while the plaintiff’s explanation for the delays was lame “the defendants’ assertion that they have been unduly (maybe even fatally) prejudiced by the 10-month delay was overly dramatic.” (Smith v Cunningham, 2018 WL 903986)

The Eastern District of Missouri held that there was no jurisdiction over an injured party in a declaratory judgment filed by an insurer under a trucker’s policy.  The injured party claimed that the vehicle limit of $1,000,000 was inapplicable contending that the all vehicle limit of $21,000,000 was the relevant limit.  As the injured plaintiffs were dismissed the court held the insurer needed to show how there was a case in controversy for the court to address when no one else was making such a claim. (Acuity v. Rex, LLC, 2018 WL 731775)

A claim for punitive damages remains on the table in the Middle District of Pennsylvania when the evidence indicated that the driver knowingly operated the vehicle in a fatigued state.  While the direct claim for punitive damages was dismissed against the trucking company as there was no evidence of facts to support a direct claim, the court held the trucking company could still be vicariously liable for the punitive damages  (Delamarter v. Couglar, 2018 WL 950201)

A NTL insurer was granted summary judgment when there was no question but that the driver was operating under dispatch to the motor carrier. The Western District of Pennsylvania pulled the plug on the suit. (First Guard Ins. Co. v. Bloom Servs., 2018 US Dist LEXIS 25608)

The trial battle has begun in a truck accident case in Northern District of West Virginia as the parties thrust and parry over motions in limine regarding the admissibility of evidence to be used at trial. While the court basically punted, deferring all decisions depending upon what the parties wind up doing at trial, it did conclude that the motor carrier’s expert, Stanley Putz, could testify regarding load securement and federal safety regulations.  (Fielder v. R.V. Coleman, 2018 WL 606033)

Over in New Mexico the District Court did not punt on evaluation of expert testimony.  The court ruled that plaintiff’s expert Shawn Wayne Miller, could not testify on distracted driving fatigue, spike in crash data, drug and alcohol testing and the cause of the loss, reserving only the issue of whether his testimony would be admissible on training and adherence to regulations on driving in certain weather conditions.  (Yazzie v. Fezette, 2018 WL Dist. LEXIS 25550)

The Eastern District in Missouri denied a motion to dismiss various causes of action against a motor carrier arising from a truck accident. The motor carrier was not seeking dismissal of the vicarious liability claim. The court held that the plaintiff alleged facts to support causes of action for negligent hiring/retention, negligent training and negligent entrustment.  The motor carrier also sought to dismiss the complaint because it was based upon boilerplate allegations. The court denied that noting that it was common knowledge that standard form pleadings are used by cost conscious attorneys. (Hejnal v. US Express, 2018 WL 534376)

In the Northern District of Oklahoma the court held that a motor carrier could be sued for negligent entrustment even when it admitted vicarious liability for the actions of the driver.  The court held that there was evidence that the motor carrier knew of the many violations that the driver had before the loss. (Walling v. CRST Malone, 2018 WL 736039)

The Eastern District of Missouri rules that a trucking company could not aggregate damages in alternatively pled causes of action to meet the monetary requirements for removal based on diversity. The court gave the defendant a short window to come up with evidence to show that the damages alleged were more than $75,000. (Hughes v. Transwood, 2018 WL 926131)

The Supreme Court of Illinois denied a trucker’s efforts to bring a settling defendant back into a case under a contribution theory. The court held that the lower court did not abuse its discretion in granting a “good faith settlement” motion concluding that the court did not have to consider the rights of the non-settling party when evaluating the settlement.  (Antonicelli v. Rodriguez, 2018 IL 121943)

The Appellate Division in New Jersey denied a plaintiff’s motion for JNOV when a trucking company and its driver were successful in defeating a claim for damages caused by a rear end collision.  The Court held that the jury could have reasonably concluded that following closely was not a cause of the accident and that driving too many hours or with too little sleep, or by discarding her logbook were not a substantial factor in causing the accident. (McCormack v. Dunne, 2018 WL 827903)

The 11th Circuit held that an “LLC limitation” on who was an insured under the umbrella policy issued to the trailer owner was applicable and excluded coverage for the truck company and its driver who were pulling the trailer at the time of the accident.  It was interesting that the court focused on whether the placement of the limitation in the section made it applicable to the whole section or only the preceding paragraph, concluding it applied to the entire section.  (Gemini Insurance Co v. Castro, 2018 WL 526990)

Is there always a rebuttable presumption of negligence when there is a rear-end hit?  The Western District of New York concluded yes in a personal injury action when a tractor-trailer hit a slow moving bus on a major highway. The fact that the bus may have been going very slow did not defeat the rear end rule  However the court held that as there was sufficient evidence presented which might rebut the presumption of negligence it would deny summary judgment to the bus company. (Hume v. Farr’s Coach Lines Limited, 2018 WL 732784)

The plaintiff was not permitted to amend its complaint to allege a punitive damage claim against a motor a carrier even when evidence indicated that the tractor-trailer was given numerous maintenance violations in a post-accident inspection, some of which may have contributed to the crash.  While the court held that the information discovered might tend to show negligence there was insufficient evidence to show the disregard of these maintenance issues would support a claim for punitive damages and denied the motion.  (Giesler v. Hirchert, 2018 WL 671206)

A motor carrier was successful in defeating direct negligent hiring claims when it conceded vicarious liability for the actions of the driver. The Northern District of Mississippi held that allowing such causes of action to proceed were not permitted under Mississippi law. (Pennington v. UPS, 2018 WL 847249)

The Court of Appeals in New Mexico upheld a verdict of $165,000 million against Fed Ex Ground Package following a fatal accident. The court held that it would not apply a mathematical formula to determine the appropriateness of damages, would not review decisions in similar cases and that the trial Court did not abuse its discretion in affording prejudgment interest.  (Morga v. FedEx Ground, 2018 WL 797539)

Five years after an accident occurred the Court of Appeals in Tennessee reversed and remanded an action to the lower court, allowing the co-defendant and the plaintiff to continue to pursue a trucking company and an unnamed driver for their comparative fault in an accident, The court held that the parties would be given a reasonable period of time in which to conduct discovery to determine the identity of the driver.  (Santore v Stevenson 2018 WL 1003581)

In a personal injury for fatal damages suffered following a truck accident the Western District of Missouri refused to dismiss an affirmative defense that punitive damages were unconstitutional under Missouri law but did dismiss an affirmative defense that sought apportionment of damages against non-parties.  The Court held that Missouri prohibited consideration of the liability of non-parties.  Woodcock v Fed Ex., 2018 WL 934900

TOW:

And the tow fight is on.  A trucking company has brought suit against a tow company for excessive charges following a truck accident.  The tow company’s motion to dismiss the complaint was partially denied.  The court held that the trucking company stated a claim upon which relief could be granted with regard to its fraud and unjust enrichment claims, but did not state a claim for relief for economic duress or punitive damages.  (Landair Transport v, Del’s Truck & Auto Repair, 2018 WL 950208)

CARGO:

Can a defendant tortfeasor seek contribution from a trucking company who is otherwise liable to the cargo owner under the Carmack Amendment?  The District Court in Nebraska held that the motor carrier would be required to stay in the case for the contribution claim. The court also denied summary judgment to everyone on their respective liabilities for the loss, granting summary judgment only on the issue of negligence per se, concluding that Nebraska did not allow for negligence per se simply based upon violation of a federal safety regulation.  (Certain Underwriters at Lloyds v. Southern Pride, 2018 WL 637391)

A motor carrier who filed a declaratory judgment as to its liability for a cargo loss sought to dismiss counter-claims for indemnity by the defendant. The District Court in Connecticut denied plaintiff’s motion concluding that when there was insufficient evidence to determine the status of the defendant the Court was unable to determine if the Carmack Amendment or COGSA governed the liabilities of the parties and denied the motion.  (Anderson Trucking Company v Eagle Underwriting Group, 2018 WL 564569)

The Superior Court in Pennsylvania upheld a grant of summary judgment in favor of a cargo insurer on the basis that transit ended when the motor carrier held the cargo for more than 72 hours while it repaired the vehicle. There was sufficient evidence presented that the cargo was seen after the 72 period ended and therefore was stolen after “transit” ended.  (Naro Enterprises v Great American Insurance Co., 2018 WL 947707)

The District Court in Massachusetts denied a broker’s efforts to dismiss a Carmack Action against it.  For the purposes of the motion the court held that the plaintiff had sufficiently pled that the broker was acting as a carrier. The court also refused to dismiss the state law claims against the broker pending further evaluation of the facts.  (Richwell Group v. Seneca Logistics, 2018 WL 988060)

What law governs when an international air shipment is damaged during the truck portion of the shipment?  The 11th Circuit concluded that the provisions of the Montreal Convention did not apply and that the provisions of the waybill would govern. The court held that when the place of the damage is known and the substitution provisions of the Montreal Convention are inapplicable, the parties needed to look to the waybill to determine liability.  As the waybill was ambiguous on whether the limitation applied to the weight of the damaged item, or the weight of the entire shipment the court sent the case back to determine the industry standard as to how it would be applied.  (Underwriters at Lloyds v Expeditors Korea, Ltd., 201Auto 8 WL 914780)

Preemption continues….The Northern District of Illinois rejected a plaintiff’s attempt to argue that invoicing freight charges for a shipment which was damaged somehow gave rise to a cause of action not preempted by the Carmack Amendment.   The cause of action for fraud and consumer fraud was dismissed.  (ABT Electronics v. Airgroup, 2018 WL 905504)

How many times can they amend?  The Northern District of Illinois permitted a plaintiff to amend its complaint for a third time, despite recognizing the possibility of preemption. Plaintiff continued to allege causes of action under ICCTA and violations of FMCSR’s.  (Starr Indemnity & Liability Co. v. YRC, 2018 WL 905523)

It is important to make sure that any settlement offer indicates that it is intended as a full and final settlement.  The Eastern District of North Carolina held that a motor carrier was not entitled to the defense of accord and satisfaction based upon a payment to the plaintiff when it was not clearly a final settlement.  The court further concluded that the motor carrier was given substantial notice of additional damages and could not rely on the nine month claim filing requirement for those additional damages.  Finally the court held that the motor carrier had not properly limited its liability when then the preprinted .60 cents a pound limitation was not printed exactly on the required line and therefore may have led to misunderstanding by the cargo owner.  (Chapman v.  Allied Van Lines, 2018 WL701627)

TRUCK BROKER BOND:

We don’t see many suits on truck broker bonds.  The District Court in Oregon addressed what is needed to establish a right to recover under the bond, giving one party all of the money and rejecting other carrier claims when they failed to properly establish their right, as a motor or shipper, to collect under the bond.  (Transport Financial Services, LLC v. Solaris Transport, LLC, 2018 WL 664804)

WORKER’S COMPENSATION:

An employee’s effort to seek recovery of fees paid for expert preparation for a worker’s compensation claim failed in Tennessee.  The Supreme Court of Tennessee held that the fees incurred by the truck driver were not compensable as a discretionary cost. (Garassino v. Western Express, 2018 WL 784766)

The estate of a truck driver who was killed while on the job at an oil well was not prevented from pursuing the owners and operators of the oil well for his injuries. The Supreme Court in Oklahoma held that a provision of the Oklahoma Worker’s Compensation Act which granted them immunity from suit was unconstitutional.  (Strickland v. Stephens Production Company, 2018 WL 525744)

A driver’s efforts to seek recovery under an OccAcc policy failed in Florida when it was determined that he never qualified under the independent truckers policy. The Middle District of Florida held that insurer was not prevented from relying on the fact that the driver was never covered as a contract driver or owner-operator despite having issued a COI. The court held that the driver had not raised waiver, estoppel or other affirmative grounds and also concluded that coverage cannot be created by waiver or estoppel.  (Atlantic Specialty Ins. Co. v. Pastukov, 2018 US Dist. LEXIS 12969)

Despite an insurer’s repeated failure to timely file a claim against a tortfeasor for worker’s compensation payments it made to an injured truck driver, the District of Nevada concluded that California public policy did not allow the employee to reap the benefit of that delay.  Public policy dictated that the insurer be permitted to lien on the proceeds of settlement monies the driver received from the government.  (Rodriguez v. US, 2018 WL 702686)

Whew! That was a lot to digest.  See you next month.