CAB Bits & Pieces December 2019

Happy Holidays!

No matter how you celebrate the season, we want to wish you a Happy Holiday! Looking back on 2019, I’m amazed at all we’ve accomplished. From new products to system enhancements, we hope everyone has enjoyed the ride as much as we have. We’re excited about CAB’s future and we can’t wait to share the innovation with you in 2020. From our family to all of you, we wish you a blessed season and a happy new year!

This is Jean, stepping in on Chad’s section of the Bits to extend my personal well wishes to you all. I would like to take a moment to thank the Insurance Industry Charitable Foundation. Food insecurity is near and dear to my heart and I volunteer on the board at Fulfill, the Food Bank of Monmouth and Ocean Counties. This month Fulfill was awarded a $50,000 grant from the organization to fund a Backpack Program to feed hungry children. You should be proud to be part of an organization that does this. If you would like to see what that money is funding you can view this. https://www.facebook.com/fulfillnj/videos/1249018068763093/

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Here’s to a fantastic 2020!

CAB’s Tips & Tricks: Crash Determinations

As many of you are aware, the FMCSA conducted a Crash Preventability Demonstration Program from June 1, 2017 through July 31, 2019. The Crash Preventability Demonstration Program allowed motor carriers or drivers involved in certain crash types (8 types) to submit Requests for Data Review through FMCSA’s DataQs system. Crashes must have occurred from June 1, 2017 through July 31, 2019. For those crashes found to be Not Preventable, FMCSA displays, to enforcement users and carriers logged into their own profiles, the Crash Indicator Behavior Analysis Safety Improvement Category (BASIC) percentiles in SMS with and without the crashes. More information on this program can be found here.

On August 5, 2019, FMCSA published a proposal for a new long term program in the Federal Register that included 15 crash types. The comment period closed on October 4, 2019. The Agency will review all submitted comments to determine any needed changes to the program and will complete required changes to the DataQs system.

A second Federal Register notice will be published to announce the start of the new program. The new program will retroactively accept eligible crashes that occurred on or after August 1, 2019. As a result, all eligible crashes that occurred after the close of the Demonstration Program may be submitted to the Agency when the new program begins.

In preparation for the new, permanent Crash Preventability Determination Program (details) slated to begin in early 2020, we have enhanced our system to reflect when a crash has been determined, by the FMCSA’s DataQ process, to be “Not Preventable” by adding a Crash Determination column. This column can be found in the CAB Report by clicking the Out of Service/SAFER tab and scrolling down to Accident Details (see below).

If your subscription has access to the BASICs Calculator feature, you will also be able to filter to recalculate the Crash BASIC Score by removing the Not Preventable Crashes via the Inspections Tab.

We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. 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:

2019 Trucking Company Failures at Triple the Rate of Previous Year: Many have heard the recent news about Celadon Group, one of the largest trucking operations in the country, declaring Chapter 11 Bankruptcy during the last weeks of December, but that is just the last in a string of shutdowns during 2019. Other notables included New England Motor Freight, HVH Transportation, Falcon Transport and LME. It is estimated that 24,000 trucks were removed from the nation’s capacity as almost 800 companies failed. Some feel the issue is related to spot pricing, which has dropped dramatically since the highs of 2018. Other factors in recent closures like Hendrickson Truck Lines were, in part, the result of unanticipated maintenance costs related to bad lease deals. All in all, 2020 may be shaping up to be another difficult year in the industry as the driver shortage, and labor laws designed to protect contract workers from being misclassified could contribute to additional closures.

As a Final Reminder, Effective December 16, 2019 Fleets Must Convert to ELDs and are no Longer Allowed to use EOBRs: The FMCSA and CVSA have made it very clear that there was no soft enforcement period planned the the EOBR sunset date came and went. We have now completed Phase 2 of the FMCSA’s implementation timeline as of December 16^th of 2019 and we are fully in Phase 3 or the Full Compliance Phase. Phase 1 started February 16^th, 2017 via awareness and training, and the phased-in compliance timeline began almost 2 years ago. The FMCSA provided ample time for the adjustment period and a website is available to identify complaint ELD providers, learn about the rule, interactive training courses, technical specifications and the like. Click here to access the FMCSA’s ELD website.

Roadway Incidents were the Leading Cause of Workplace Death from 2011-2016: Transportation incidents were the most common fatal workplace injury event from 2011 to 2016. Violent events were the second most common event type, followed by falls, slips, and trips. Of those fatal Transportation Incidents, Roadway Incident Involving Motorized Land Vehicle was the leading fatal cause, followed by Pedestrian Vehicular Incident. This continues to be an unsettling trend for our industry. Increased efforts should be made to provide drivers with the tools to drive defensively even as traffic congestion continues to rise. Additionally, seatbelt use and monitoring should be a major emphasis of a good risk management program. For more information, click here.

It’s that time of year…Cargo Theft Season: Christmas season means increased risk of cargo theft. It is estimated that roughly two thefts occur per day during the holiday season, a 20% increase over the remainder of the year. During this time the main targeted item is electronics. Safety recommendations for drivers and motor carriers include:

• Verify the authenticity of all shipment related activities during these periods – particularly any entity which has been engaged to either move or store a shipment. Driver and business verification, prior to releasing any shipment, is paramount.
• Communication between drivers and shippers needs to be firmly established and regularly maintained during shipments over these periods.
• Truck stops, highway rest areas and distribution centers are frequent targets for cargo thieves – not only traditionally but more so over holiday periods. For that reason, any location where cargo would either intentionally or unintentionally come to rest – even for brief periods of time – should be as secure as possible.
• If a cargo conveyance must be left unattended for any period of time it should be made as secure as possible. Theft-resistant locking/sealing mechanisms for tractors, trailers and cargo compartments; disabling technology for the vehicle’s power units or trailer movements; parking vehicles and/or cargo compartments in a fashion which make access as difficult as possible – are all things worthy of strong consideration.

The Driving Profession is one of the Deadliest Jobs in America : There were 5,250 fatal work injuries recorded in the United States in 2018, a 2 percent increase from the 5,147 in 2017, the U.S. Bureau of Labor Statistics reported today. The fatal work injury rate remained unchanged at 3.5 per 100,000 full-time equivalent (FTE) workers. The lead fatal event or exposure, transportation incidents, remained the most frequent type of fatal event at 2,080, accounting for 40 percent of all work-related fatalities. Based on occupation, driver/sales workers and truck drivers had the most fatalities of any broad occupation group at 966. Among all detailed occupations, heavy and tractor-trailer truck drivers had the most fatalities at 831. For more information on the National Census of Fatal Occupational Injuries in 2018, click here.

Updated BASICs Percentiles as of 11/29/19 for All Motor Carriers Operating in the U.S.:

Data Note: For each BASIC category and power unit range, a) the percentage of carriers in different percentile ranges out of carriers with a percentile, and b) the percentage (out of all carriers) of carriers with a percentile, and of carriers without a percentile due to each of the following three reasons: 1) carrier had no relevant inspections, 2) carrier had no relevant violations, and 3) carrier had violations, but they were too few or occurred too long ago to get a percentile. For the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included.

CASES

Auto

The District Court in Florida upheld a trial court determination that a trucking company was not responsible for negligent repairs on a trailer performed by a third party. The tire came off the trailer injuring the plaintiff. The court agreed that repair of the trailer was a delegable duty. The court noted that the driver of the tractor trailer had complied with the pertinent federal trucking regulations and that nothing required a carrier to disassemble a wheel or hub during an inspection to verify that a qualified mechanic performed appropriate repairs. Tuong Vi Le v. Colonial Freight Systems, 2019 WL 6519440

The Southern District in Ohio held that neither plaintiff nor counsel could disparage defendants because the driver was not present at trial. The plaintiff initially agreed that the defendant truck driver would not have to appear at trial, as liability was accepted, reneging on that agreement would not help him when the driver could not be located for trial. . However, the jury should be informed why he was not present, i.e., because he is a Canadian resident, because his breach of duty was stipulated, and because counsel previously agreed he need not participate at trial. Anca v. Gemini Transport, LLC, 2019 WL 6324541

When the trucking defendants are not residents of the state of Texas it becomes even more difficult to argue for change of venue. The Western District of Texas held that the trucking defendants had not shown “good cause” for transfer of the case to the Waco Division. Defendants had the burden to “clearly demonstrate that a transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’ As all of the relevant litigation witnesses and information was basically in between the two proposed venues the plaintiff gets the right to select the venue. Frischhertz v. King, 2019 WL 6606532

The responsibility of pilot cars when there is a loss is always an issue. The Court of Appeals in Michigan reversed a trial court ruling granting summary judgment to the insurer of a pilot car in a suit seeking property damages done to a DOT infrastructure when the transporting vehicle hit the bridge. The DOT, which was permitted to directly proceed against the insurers, filed against both the motor carrier and the pilot car insurers. The court held that pilot car should be deemed to have been involved in the accident and sent the case back to the trial court for further proceedings. DPT v. National Interstate Insurance Co., 2019 WL 6339911

Ryder System, as the owner of a tractor involved in an environmental spill, was entitled to seek full indemnity from the trucking company who had the accident. The Middle District in Alabama held that they were entitled to indemnity under federal statute and further held that the contractual indemnity under the lease also permitted recovery of costs and fees. Ryder v. Charleston Aluminum, 2019 WL 6652510

The Eastern District in Louisiana refused to stay a personal injury action against a trucking company pending resolution of a criminal investigation. The motor carrier defendants contended that the plaintiffs were part of a scheme to rig many accidents to collect damages and that a federal investigation is underway. The court determined that it would proceed with the case on this particular accident and not wait to see if the criminal venue yielded any evidence of fraud. Collins v. Benton, 2019 WL 6728334

The dismissal of the complaint was the appropriate remedy according to the Eastern District of Virginia. When the plaintiffs filed suit in another state, which was dismissed for failure to prosecute, the plaintiff could not rely on that filing date to toll the statute of limitation on a truck accident suit. The court also dismissed a cause of action for loss of consortium because the state does not recognize that as a viable claim. Sirak v. Aiken, 2019 6689912

A truck driver was killed when a third party negligently operated a fork lift unloading the truck and litigation commenced. The Superior Court in New Jersey concluded that neither the premises owner nor the general contractor who hired the unloader was liable for the injuries, affording summary judgment to both of them. The court held that the general contractor was not obligated to check the credentials of every employee of the unloading company. The premises owner also bore no liability as it did not exercise any control or have any knowledge of a potential problem. Chetwynd v Diversified Rack & Shelving, Inc., 2019 WL 6837765

Over in the Court of Appeals in Michigan another truck driver was successful in reversing summary judgement which was given to a shipper following an incident in which an overhead door struck the driver. The court held that the trial court failed to consider whether the entry to the chemical fixation building through the rail door presented a dangerous condition subjecting invitees to an unreasonable risk of harm despite the proper operational functionality of the rail door. Griad v. EQ Detroit, Inc. 2019 WL 6888648

A number of driver cases this month. Another trucker lost his right to proceed in his claim for personal injuries because of his failure to exercise reasonable diligence in serving the defendant. The truck driver had been struck by a vehicle which had originally been struck by the defendant’s vehicle. Plaintiff failed to establish reasonable grounds to avoid the failure to prosecute assertion. Huskins v. Tapley, 2019 IL App 4th 190292-U

A train conductor injured by a derailment when a truck got stuck on the tracks was not permitted to pursue claims for punitive damages or negligent training, hiring or supervising against the trucking company. The Southern District of Mississippi dismissed those claims where the motor carrier conceded vicarious liability. Myers v. Legacy Equipment, 2019 WL 6794194

Strategy in the delay in releasing discovery information does not always work. The Western District of Missouri sanctioned a defendant for failing to fully disclose information on trucks which may have been operating at the location where the loss occurred. The court held that “both the initial and the amended complaint allege Defendant is liable because it is responsible for the driver’s actions. Consequently, any evidence—such as GPS data—that tends to show Defendant did not have any trucks or trailers in the area at the time of the accident, and so by inference no truck drivers it was responsible for in the area, would be information Defendant might use to support its claims or defenses under either the initial or amended complaint.” The defendant was precluded from producing relevant witnesses because of the delay. Trekell v. Target Corporation, 2019 WL 6868963

No success for a trucking company which sought to avoid liability for the actions of an intoxicated truck driver. The court held that although the driver consumed alcohol before driving his tractor trailer in defiance of the motor carrier’s rules, he was on his route to deliver a load and did not deviate from his route and expressed no motive other than to complete his task. He was acting in the course of his employment and therefore the trucking company would be liable for his actions. The court also held that the claims for punitive damages would stand. Laporsek v. Burress, 2019 WL 6718098

A motor carrier was not permitted to remove a case to federal court when it waited to receive a demand in excess of the $75000 jurisdictional limit to file for removal. The Northern District in Alabama held that it facially apparent from the complaint that the damages were in excess of $75,000, even when an amount was not delineated. The case was remanded back to state court. Fuqua v. D&M Carriers, LLC, 2019 WL 6918297

In a declaratory judgment action seeking to compel a non-trucking liability insurer to defend an accident the District Court in New Jersey concluded that the commercial auto insurer had failed to plead a plausible complaint against the non-trucking insurer and dismissed the suit. Leave to amend was, however, given to the plaintiff. Prime Property & Casualty Insurance Co. v. Freightways Logistics, LLC. 2019 WL 6907532

Cargo/Physical Damage
A claim against the insurance broker for failing to make sure that coverage remained in place for physical damage failed in the Appellate Division in New York. When the insurer was found to have correctly cancelled the policy for non-payment the broker was held to have no duty to make sure that the plaintiff received the notice of cancellation and ensure that coverage was obtained elsewhere. MAAD Construction v. Cavallino Risk Management, 2019 WL 6720471

A claim arising from the interstate portion of an international transport was held subject to the Carmack Amendment in the Eastern District of Kentucky. The court held that the motor carrier could be liable, even though it may not have picked up all of the goods because it was supposed to have received them. The court dismissed the state law claims and the claim for attorney’s fees. Next F/X, Inc. v. DHL Aviation, 2019 WL 6868961

Interesting discovery issue addressed in a Carmack case in the District Court in North Dakota. The court held that the plaintiff, who was an assignee of the cargo claim, was not obligated to produce discovery which was only in the hands of the assignor. The Federal Rules of Civil Procedure requires a party only to product documents in their custody. Joe Whatley Jr. v. Canadian Pacific Railway, 2019 WL 6972405

Thanks for joining us,

Jean & Chad

CAB Bits & Pieces November 2019

Good Day!

Happy Thanksgiving! Tis the season for giving thanks and we would like to relay our thanks to all of you for being a part of the CAB Nation. We appreciate your involvement in our organization as users, customers, prospective customers and the like. You are what helps keep CAB strong as we continue our mission of helping our users “Make Better Decisions”.

Travel safe, don’t eat too much turkey, enjoy your friends and family and we look forward to engaging with you again in December as we close out 2019.

Before we head into the news and the cases I wanted to take a moment to talk about food insecurity. (This is Jean BTW) Many of you who know me well know that I am actively involved in “shortening the line” on the food line and finding ways to feed people. After 35 years as a transportation attorney I have seen millions in food go to waste and have long pushed for the industry to expand its impact on food insecurity. I recently received a news article (thanks Steve Silverman – Berkshire Hathaway) about steps taken by one insurer, in Japan, to help make sure that minimally impacted food gets to those who need it. I wanted to share and give a shout out to Sompo Japan. The article can be viewed here at https://www.advisen.com/tools/fpnproc/fpns/articles_new_1/P/352746380.html?rid=352746380&list_id=1. Just a reminder to think outside the box when dealing with these issues. There is a lot that we can do in this field and I encourage you all, especially at this time of year, to remember that there are many who need our help. Thanks for listening. And now on to the news.

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Have a great month!

CAB’s Tips & Tricks:

This month’s enhancement is focused on Carrier Health, which is accessible via CAB List. (To learn more about CAB List, visit our Tools Menu>Webinars to watch “CAB List Training”.) When Carrier Health is run, you are provided with a complete Carrier Health for your Groups via Alerts, Violation Heat Map, BASICs Alerts, Violations (24 Months), BASICs History, ISS History and BASICs Statistics. Specifically, relating to the Violations section, you are now able to choose (green arrows) to have the data presented via Pie Graphs in addition to the previous Tables.

We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are customer driven. Our goal is to help you Make Better Decisions!

This month we report:

Cargo Theft and Loss Values Rise in the Third Quarter: A total of 165 cargo thefts were reported, with an average loss value of $155,709, according to the latest quarterly report published by SensiGuard. That represents a 13% volume increase and a 31% value increase compared to Q2. There was also a 3% increase in volume but an 8% decrease in loss values compared to the same quarter last year. Most frequently stolen, with 21% of the total thefts, was electronics loads. 35% of those thefts were identified as televisions and displays. The second most stolen product type was “home and garden,” with 19% of total thefts. One out of four stolen loads were reportedly appliances. While usually the most common reported theft, “food and drinks” accounted for 14% of reported thefts, making those loads the third most stolen product type, according to SensiGuard. California reported the most cargo thefts, accounting for 26% of all theft incidents. Texas, Georgia, Florida followed, with a three-way tie for fifth most incidents between the states of New Jersey, Illinois and Tennessee. The report notes that 38% of all electronics thefts were reported in California. SensiGuard attributes the increase in theft volumes in The Golden State to a glut of containerized freight in southern California as companies rush to get shipments in from China before more tariffs take effect.

13.5% of Commercial Motor Vehicles Inspected Placed Out of Service Due to Brake Related Violations: The Commercial Vehicle Safety Alliance (CVSA) was held September 15-21, 2019. During that time 4,262 vehicles were placed Out of Service due to critical brake-related violations that were identified during the roadside inspection. As a part of this year’s brake safety week, inspectors also collected and reported on data relating to brake hoses/tubing.

• 2,567 units had chafed rubber hose violations.
• 1,347 units had chafed thermoplastic hose violations.
• 2,704 violations of § 393.45 of the Federal Motor Carrier Safety Regulations (FMCSRs) and Canadian equivalent violations included chafed rubber hoses.
• There were 1,683 violations of § 393.45 of the FMCSRs and Canadian equivalent violations that included kinked thermoplastic hoses.

Sixty jurisdictions in Canada and the U.S. participated in this year’s Brake Safety Week. In the U.S., 49 jurisdictions conducted 31,864 roadside inspections and placed 4,344 (13.6%) commercial motor vehicles out of service due to brake-related violations. In Canada, 11 jurisdictions conducted 2,456 roadside inspections and 282 (11.5%) commercial motor vehicles were placed out of service for brake-related violations. For the complete press release, click here.

CAB-Inspection Selection System (ISS) Value Summary Updated as of November 5, 2019: Description: The first table shows, for each power unit range; the number of carriers with “safety” scores in the green, yellow, and red ranges, and the total number of carriers with a “safety” score or an “insufficient data” score. The second table shows the data as percentages, out of carriers with “safety” scores or out of all carriers as appropriate. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included.

Operational Costs of Trucking Continues to Rise, Average Hourly Cost is almost $72: The American Transportation Research Institute (ATRI) report, “An Analysis of the Operational Cost of Trucking” was published on Nov. 4, 2019. The average marginal cost per mile incurred by motor carriers rose to $1.82, a 7.7% increase from 2017’s cost of $1.69. By costs per hour, carriers expenses were $71.78, up from $66.65 in 2017. Costs are broken into two categories: vehicle- and driver. Vehicle-based costs include fuel, truck lease or purchase payments, repair and maintenance, insurance premiums, licenses, and tolls. Driver-based costs include wages and benefits. Costs went up in every category except tires, and fuel costs saw the largest increase at 17.7%. Not far behind fuel cost increases, were insurance costs at 12%. Driver wages and benefits continued to make up the largest portion of operating costs and 2018 was a year of substantial driver pay increases industry wide. You can request the report from ATRI by clicking here.

US DOT: Eliminating the Requirement to Submit Driver Vehicle Inspection Reports (DVIR) When No Defects are Found to Save $74 Million: The FMCSA is proposing to rescind the requirement that drivers of commercial buses submit – and their motor carriers retain – driver-vehicle inspection reports (DVIRs) when the driver has neither found nor been made aware of any vehicle defects or deficiencies. “Reducing regulatory burdens and saving commercial drivers valuable time is helpful to bolster the commercial motor vehicle industry, without compromising safety. This straightforward proposal is reflective of the agency and Department’s approach to reducing unneeded regulatory costs.” said FMCSA Deputy Administrator Jim Mullen. Current regulations require commercial bus drivers to submit DVIRs even if there are no vehicle defects to report. The proposed rule would eliminate the need for a driver to file, and a motor carrier to maintain, a no-defect DVIR. The agency estimates that passenger-carrying commercial motor vehicle drivers spend approximately 2.4 million hours each year completing no-defect DVIRs, and that the proposed rule would result in a cost savings of $74 million per year. For more information on this proposal, click here.

California Assembly Bill 5 or ‘Contractor Law’ Forces Fleets to Overhaul Operations in State: The genesis of the law, court case, Dynamex vs. Superior Court, could effectively end the Owner-Operator model in the state. In September 2019, the state’s lawmakers passed the bill that, in short, presses businesses to classify more workers as employees. The law has caused some large fleets to cut ties with their California based Owner-Operators, offering truckers the option to leave the state or sell their equipment and become company drivers. For more information on California’s Assembly Bill No. 5, click here.

Effective December 16, 2019 Fleets Must Convert to ELDs and are no Longer Allowed to use EOBRs: As noted in the graphic below, Phase 2 of the FMCSA’s implementation timeline comes to an end on December 16^th of 2019. Phase 1 started February 16^th, 2017 via awareness and training, and the phased-in compliance timeline began almost 2 years ago. Motor carriers using EOBRs should be well on their way to converting to ELDs or they risk violation of the rule after the full compliance date of December 16^th, 2019. The FMCSA has provided ample time for the adjustment period and a website is available to identify complaint ELD providers, learn about the rule, interactive training courses, technical specifications and the like. Click here to access the FMCSA’s ELD website.

WWLTV.com News Report Details how a Staged Accident Works: The video details a New Orleans investigative report into a crash, where at the scene, the truck driver is determined to be at fault. However, it turns out to be a scam for a staged side-swipe crash. The report details “How they Pull it Off” which includes 1) Packing a car full of people 2) Side swipe and 18-wheeler 3) Plant witnesses at the scene 4) File a lawsuit. This accident is different because the Federal Government investigated and filed an indictment for conspiracy and wire fraud against the perpetrators. View the complete video here.

2.8 million nonfatal workplace injuries and illnesses occurred in 2018, Transportation & Warehousing Numbers on the Rise: That number was unchanged from 2017. The incidence rate for total recordable cases in 2018 was also unchanged from the previous year, at 2.8 cases per 100 full-time equivalent workers. This was the first year since 2012 that the incidence rate for private industry has not decreased. However, Transportation & Warehousing nonfatal injuries and illnesses have steadily risen from 201,500 in 2014 to 221,400 in 2018, a 9% increase over that time.

FMCSA Provides Support Initiative for Under 21 Military CDL Pilot Program: Under the program, individuals under 21 that have a military driver’s license may qualify for an in-demand driving job. The FMCSA has set-up a Job Opportunities page that can be viewed here. The page lists trucking companies or businesses, with their mission statements, that are engaged in interstate commerce truck operations and approved to hire drivers for the Under 21 Military CDL Pilot Program.

Two Recalls affect 3600 Commercial Motor Vehicles: Volvo Trucks North America and Daimler Trucks North America are both issuing recalls having to do with truck steering which can cause drivers to lose control. Volvo is recalling 2,287 2020 trucks which have been equipped with HD94 Sheppard gear variants. According to the recall notice published by the NHTSA, the steering gear mounting fasteners “may be insufficiently tightened.” This could result in loss of control of the vehicle. Volvo will be notifying owners and dealers of the issue. Trucks will be inspected and gears will be replaced free of charge. The recall began on November 15th, 2019 Volvo Trucks’ number for this recall is RVXX1906.

Daimler Trucks North America (DTNA) is recalling some 1,331 2020 Western Star 4700 because the steering shaft “may have been improperly installed.” This could result in a loss of control of the vehicle. DNTA will also be notifying owners and dealers, inspecting trucks, and correcting the shaft installation free of charge. This recall is set to begin on December 23rd, 2019. DTNA’s number for this recall is FL-835.

CASES

Cargo
If the broker pays the claim and fails to take an assignment from the cargo owner it has no standing to pursue the motor carrier under the Carmack Amendment. More importantly, the District Court in New Jersey also held that the absence of a seal does not, in and of itself, establish adulteration of a product. Mecca & Sons Trucking Corp. v. J.B. Hunt Transport Services, 2019 WL 6167930

Is a broker’s contractual claim against a motor carrier preempted by Carmack? The Middle District in Florida held that the broker could not seek recovery under a contractual agreement for the cargo payment which it made to the shipper. The broker was, however, given the right to amend the complaint to seek indemnity for costs and fees. Scotlynn USA Division v. Titan Trans Corporation, 2019 WL 5530267

Limitations of liability will always be contentious issues. The 11th Circuit remanded back a case after the trial court rejected both the defense of non-liability and the assertion of a $100,000 limitation. The court held that the motor carrier was entitled to present evidence on both issues. Interestingly the court was willing to consider that an insured value on a rate confirmation could in fact be a limitation of liability. Atlantic Specialty Insurance Co. v. Digit Dirt Worx, 2019 WL 5704518

The amount that the plaintiff was invoiced for a shipment of lobsters was held to be the proper measure of damages under the Carmack Amendment, regardless of how much the shipper may have actually paid to the supplier. The District Court in Massachusetts held it was non-speculative evidence of the goods’ value on the open market at the time they were lost. The court also held that prejudgment interest was proper but that it should be based upon federal interest rates and not state law. Richwell Group v. Seneca Logistics Group, LLC, 2019 WL 6130711

Preemption continues to remain a solid defense. The District Court in New Hampshire ruled that a plaintiff could not assert a consumer fraud claim based upon allegations that the motor carrier invoiced him for a shipment never delivered. It was ultimately all a cargo claim and subject to the preemptive effect of the Carmack Amendment. Burrill v. XPO Logistics Freight, Inc. 2019 WL 6134391

I am going to mention this both in cargo and auto sections for those of you who only read one section. The Southern District of Florida held that plaintiff’s claim for personal injuries suffered when it opened a package when a lam was broken inside. The state law claim against the motor carrier for injuries arising from the packing and interstate transport of the lamp was preempted by the Carmack Amendment. Sanchez v. UPS, 2019 U.S. Dist. LEXIS 195140

A quick motion to dismiss on a household goods suit was only partially successful in the District Court in Maryland. The court held that it would dismiss a claim that the defendant bumped up the weight of the items for additional revenue, but refused to dismiss a claim for unlawful brokerage activities, fraud, Rico violations and state consumer fraud actions. Even though the Carmack Amendment governed the claim for damages against the motor carrier it was unclear to the court whether all of the defendants were entitled to that preemption defense. The court also refused to enforce a forum selection clause in the bill of lading. Ripley v. Long Distance Relocation Services, LLC. 2019 WL 5538343

The Carmack Amendment will not be applied to a claim allegedly stolen goods. Silvestri v. Bekins Van Lines, Inc. 2019 WL 5538205

Auto
Anything you say can and will be used against you in a court of law – it’s true. When a plaintiff made a written statement in a bankruptcy proceeding that he had no“[c]laims against third parties,” the Court of Appeals agreed with the trial court that the doctrine of judicial estoppel barred plaintiff’s civil action against a truck owner for injuries arising from a motor vehicle accident that occurred before the bankruptcy filing. Hernandez v. Hires, 2019 WL 6171074

An injured truck driver will be permitted to tell the jury about his loss of the American dream following a truck accident in which he was struck by another motor carrier. The court in the Middle District in Pennsylvania also addressed the testimony of the plaintiff’s doctor, granting some relief to the motor carrier defendant. Okanovic v. Hayes, 2019 WL 5692754.

The Court of Appeals in Michigan reversed a trial court’s denial of summary judgment to a defendant when the plaintiff’s tractor-trailer struck the rear end of defendant’s vehicle, resulting in a fatal injury. The court held that there was no admissible evidence that the defendant was at fault, never mind grossly negligent. Sakofske v. Gering, 2019 WL 5418327

A defense verdict was affirmed, and the request for a new trial denied, in the 3rd Circuit. Plaintiff’s vehicle collided with the defendant’s tractor trailer. The jury found that the truck driver was not negligent which also resulted in dismissal of the suit against the motor carrier. The court held it was not against the weight of evidence, acknowledging a 100 page decision from the trial judge which spelled out all of the reasons why the verdict was appropriate. Botey v. Green, 2019 WL 5578857

The Middle District of Pennsylvania held that a plaintiff could amend his complaint to allege punitive damages. The court held that plaintiffs’ proposed complaint which alleges that the driver drove a commercial truck at an unsafe speed on a dangerous road, followed the plaintiffs’ vehicle too closely, and was inattentive to traffic conditions around him could support such a claim. Buck v. Sekhon. 2019 U.S. Dist. LEXIS 191630

The Southern District in New York agreed that it had no jurisdiction over a trucking company for an accident which occurred in Pennsylvania. The court held that the designation of an agent for service of process under FMCSA rules could not provide the Court with general personal jurisdiction over the motor carrier. Carson v. Western Express, Inc. 2019 WL 6050730

An interesting argument made in the Eastern District of Arkansas to avoid remand to state court. While the plaintiff and the truck driver resided in the same state, which would defeat diversity the trucking company argued that as the plaintiff contended that it was vicariously liable, and it was diverse in location from the plaintiff that somehow changed the diversity requirements. It failed and back the case goes to state court. Stickford v. Marable Transps., Inc. 2019 U.S. Dist. LEXIS 198344

When a tow company allowed gravel to spread out over the roadside when it removed a tractor from a ditch, the Court of Appeals in Arkansas held that the tow company might bear the risk of accidents occurring as a result of the presence of the gravel. As the trial court was held to have incorrectly applied a statute to limit exposure to situations where unnatural materials were left on the road way, the court remanded the plaintiff’s case back to the trial court to allow the plaintiff to seek injuries from his motorcycle accident. McKim v. Sullivan, 2019 Ark. App. 485

The Eastern District in Missouri was unwilling to grant partial summary to a motor carrier in a personal injury action. Defendants argued that they were entitled to partial summary judgment on plaintiff’s claims based on a failure-to-yield theory because the relevant state statute provides that the driver of the second vehicle to enter an intersection owes the duty to yield right-of-way to the driver of the first vehicle. The court held that there were questions of fact as to who entered the intersection first. Felton v Safron Logistics2019 WL 5727592

Claims of negligent entrustment and punitive damages were permitted to proceed against a motor carrier in the Eastern District in Oklahoma. Whether the motor carrier knew or should have known that the driver was not safe to drive, was not competent or fit for the duties required of him as an employee, had a propensity for negligent driving, driving while distracted and/or was not competent to drive safely, and entrusted him with driving an unsafe vehicle were to be addressed by the jury. Deela v. Annett Holdings, 2019 WL 5580095

When a motor carrier concedes liability for the actions of the driver will additional causes of action stand against the motor carrier? The District Court in Colorado, following many other courts, held that claims for negligent hiring and entrustment would not stand when vicarious liability was admitted. Trujilllo v. Mays Trucking, 2019 WL 5684213

Same held true in the Eastern District of Louisiana, where the court also dismissed the independent causes of action against the motor carrier. Coffey v. Knight Refrigerated, LLC, 2019 WL 5684258

The same held true in the Eastern District of Missouri when the court dismissed extra claims against a motor carrier who conceded liability for the actions of the driver. The court did not, however, grant summary judgment on the punitive damages issues – letting it head to the jury. Mason v. C.R. England, 2019 WL 5394565

The Court of Appeals in Georgia granted judgment to an employer for injuries caused when the tire on a truck broke free and struck plaintiff’s vehicle. The court held that the driver had no knowledge of any unsafe condition that caused the tire of the truck he was driving between job sites to separate and therefore the employer could not be vicariously liable for the accident IN/EX Systems, Inc. v. Masud, 2019 WL 5588811

An insurer’s argument that the Georgia Direct Action statute, which permits a claim against a motor carrier’s insurer, was inapplicable failed in the Northern District of Georgia. The Court denied the defendants’ Motion to Dismiss, or in the Alternative, Motion for a Separate Trial. Mitchell v. Dixie Transport, 2019 WL 6137488

Although the reasons are not spelled out, the Northern District in Texas refused to grant judgment to a defendant for claims against the trucking company for gross negligence and negligent entrustment. Settlement with the driver and one motor carrier was not enough. It is unclear whether the remaining defendant is a motor carrier or a broker. Parra v. Allways Transport, 2019 WL 5457036

An insurer was successful in seeking to avoid allowing a plaintiff to amend his complaint to bring in non-diverse insurers of other parties who may have contributed to plaintiff’s emotional injuries. The 5th Circuit held the plaintiff was not entitled to bring in a liability insurer without a judgement against the insured and further held that as the plaintiff suffered only emotional injuries the suit would be futile. Petty v. Great West Insurance Co., 2019 WL 5681356

What happens when the driver gets rid of his cell phone after an accident? The District Court in New Mexico granted sanctions against the truck driver. Balancing the spoliation considerations, the court allowed plaintiffs to introduce evidence of purported willful spoliation of the cell phone and the personal cell phone records obtained from the provider. The court reserved a ruling for trial as to whether an adverse inference instruction was warranted. Schmidt v. Shifflett, 2019 WL 5550067

An insurer’s effort to obtain a declaration that it had no obligation under the MCS-90 to pay any judgment rendered against its insured was rejected by the 4th Court of Appeals. While the trial court granted judgment to the insurer the appellate court held just because a federal court could exercise jurisdiction under the Declaratory Judgment Act does not mean that it should. The court held that the trial court reached the merits despite a thin and ambiguous record. In doing so, the court created both a substantial question about whether Article III jurisdiction existed and a serious potential to interfere with ongoing state proceedings. Trustgard Insurance Company v. Collins, 2019 WL 5700355

A truck driver was granted summary judgment in the Northern District of Ohio when the court concluded that no reasonable jury could find he breached the limited duty he owed under Ohio law or that the accident would not have occurred but for his alleged breach when the accident occurred because plaintiff’s vehicle came over the median into defendant’s lane of traffic. Ahner v. Smith, 2019 WL 5684438

The Court of Appeal in Louisiana held that genuine issues of material fact existed as to whether restaurant owners had a duty to take action to remedy situation in which tractor trailer regularly parked on shoulder of highway during busy times at restaurant and whether situation contributed to motorist’s automobile accident. Sepulvado v. Farm Bureau Insurance Co., 2019 WL 5783422

When plaintiff’s expert could not support any conclusion that plaintiff was not afforded an opportunity to avoid hitting defendant’s truck, the expert Reconstructionist would not be permitted to testify. The Eastern District of Michigan held that his expert report listed conclusions without any causation analysis, and his deposition testimony revealed that he did not employ any analytical methodology, much less a reliable one. Fields v. Ashford, 2019 WL 5704216.

When an insurer pays no fault benefits to a plaintiff following a truck accident it is allowed to intervene in plaintiff’s suit against the trucking company seeking non-economic damages. Plaintiffs could not seek to abandon allegations related to economic damages in order to avoid having the insurer intervene. The Northern District in Ohio held that the insurer could intervene as of right. Miracle v. JPVS Import Export, 2019 WL 5729868

When the plaintiff’s estate filed for probate in Georgia it could not later argue that the decedent lived in a different state in order to defeat diversity. The Northern District in Mississippi rejected a request to remand the case back to state court. Pell v. Warden, 2019 WL 5692651

A trucking company and a trailer owner were successful in getting a number of causes of action dismissed in an action seeking damages for an accident which occurred when plaintiff’s vehicle struck and then went under the trailer. The Southern District in Mississippi held that there was no basis for a claim for punitive damages, or for additional damages when vicarious liability was admitted. Riggio v. Pruneda, 2019 WL 6053017

Worker’s Comp
A successor trucking company was held to be the employer of a truck driver originally employed by the prior employer. The surviving corporation’s workers’ compensation insurance policy covered claimant at time of his work-related injuries following statutory merger of claimant’s employer and surviving corporation, and thus claimant had to exhaust coverage provided by surviving corporation before claim would be covered by Insurance Guaranty Fund, which provided coverage following involuntary liquidation of employer’s workers’ compensation insurance carrier, although employer was not listed in policy’s multiple “Other Insureds Extension” pages; claimant was employee of surviving corporation before his workplace accident given that employer no longer legally existed after merger, and insurance policy’s named insured was surviving corporation. Illinois Insurance Guaranty Fund v. Priority Transportation, Inc., 2019 Il App (1st) 181454.

A truck driver was not acting in the course and scope of his employment when he was injured stepping out of his truck. The Court of Appeals in Illinois held that when the driver came back to his vehicle, a few hours after leaving, to get his personal belongings and his trip sheets he was no longer acting as an employee and was not entitled to worker’s compensation benefits. Transport America v. Illinois Workers Compensation Commission, 2019 IL App (4th) 180709WC-U

Physical Damage
Coverage was not afforded for a physical damage claim when the motor carrier failed to list the driver on the APD policy. The Eastern District of Virginia held that the insurer met its burden to show that defendant failed to satisfy two independent requirements for coverage of the driver The insurance policy criteria for driver coverage were clear and unambiguous and defendant did not produce any credible evidence either that it satisfied these criteria or that plaintiffs waived these criteria. Certain Underwriters at Lloyd’s v. Deol Transport, 2019 WL 5459057

Thanks for joining us,

Jean & Chad