CAB Bits & Pieces June 2019
Good Day CAB Nation!
Happy Summer! We at CAB hope you and your families are enjoying a wonderful summer. With the 4th of July quickly approaching, we hope you take a restful break to enjoy time with your family and friends. If you do, as you travel to your holiday destinations, we encourage you to observe the drivers and trucking companies that are still rolling safely and thank them and wish them a Happy 4th of July if you get the chance!!!
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Have a great month!
CAB’s Tips & Tricks:
Building off the success of our new filter in Carrier Central, you may have also noticed we’ve added a filter button (green arrow below) that will allow you to filter motor carriers with shared characteristics for search results in Carrier Central. This additional filter capability allows you to quickly hone in on the results you’re looking for. This filter tools is also available in Workspace. This additional enhancement functionality was put in place to provide additional speed and efficiency when searching for motor carriers.
New month, new webinar video!
CAB for Underwriting– Our newest webinar is titled CAB for Underwriting and it has been released to rave reviews! Or at least a couple very nice compliments about the content. CAB for underwriting is just slightly over 43 minutes as we’ve strived to provide training videos that are concise and useful. Even though, CAB for Underwriting was developed and recorded specifically with underwriters in mind, it can also serve as a very good introduction to the CAB report for Loss Control, Claims, SIU and the like. The video can be accessed by clicking here.
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 a customer driven company and our goal is to help you Make Better Decisions!
This month we report:
Proposed Hair Drug Testing Rules sent to OMB: The Substance Abuse and Mental Health Services Administration (SAMHSA) sent the proposed final rule to the White House Office of Management and Budget (OMB) for review on Tuesday, June 11. This hair-test rule would establish the scientific and technical guidelines for the inclusion of hair specimens in the Mandatory Guidelines for Federal Workplace Drug Testing Programs and establishes standards for certification of laboratories engaged in drug testing for federal agencies. Currently, a urine sample satisfies drug and alcohol testing requirements for the FMCSA. Due to the significance of the regulation, OMB will have 60 to 90 days to review it. Once approved, federal agencies will be able to review the rule prior to posting it for public comments in the Federal Register.
DOT Examiner Sentenced for Fraudulent Exams: A former Pennsylvania DOT medical examiner was sentenced for certifying medical exams he never administered. On June 5, the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia sentenced Dr. Michael McCormick to three years of probation and fined him $1,000 for signing off on DOT exams he never conducted. McCormick had his staff at Express Med Urgent Care conduct a DOT physical exam on at least one patient in April 2017. Unfortunately, his staff members were not certified medical examiners (CME). McCormick’s staff completed the DOT medical exam report under his name and National Registry of Certified Medical Examiners number. Under false pretenses, the patient was issued an examination certificate. After the investigation, FMCSA removed McCormick from the National Registry and voided 223 active medical examiner certificates held by commercial drivers.
Large Truck Crash Fatalities Rise Again: Fatalities from crashes involving at least one large truck are expected to rise roughly 3 percent in 2018 (NHTSA June 2019 Traffic Safety Facts). Initial reports show while traffic fatalities for 2018 are projected to be down about 1 percent from 2017, the fatality rate for crashes involving at least one large truck are projected to go up. A total of 37,133 people died as a result of traffic fatalities in 2017. That number is projected to reduce by 383 deaths for 2018. The Early Estimate of Motor Vehicle Traffic Fatalities in 2018 report can be found here.
FMCSA Administrator Ray Martinez Indicates Hours of Services Proposal Soon : The administrator of the Federal Motor Carrier Safety Administration (FMCSA) expects an announcement on the revised HOS rule soon but did not give an exact date during testimony to a Senate committee on Wednesday, June 19. “I really do believe we are in the very final stages of that process, and I am hopeful that it will be in short order,” said FMCSA Administrator Ray Martinez. “I hesitate to put a certain date on it.” The proposed rule continues to be reviewed by the White House Office of Management and Budget (OMB), where it was sent for review on March 28. OMB has a 90-day allowance to review the rule and can grant one 30-day extension before being published in the Federal Register. An anticipated announcement of the proposed HOS rule was expected on June 7 but was later pushed back to the end of June.
Pennsylvania takes Initial Steps to Require Snow and Ice Removal from Vehicles: State law already allows police to ticket car and truck drivers for fines of $200 to $1,000 if the wintry precipitation causes serious injury or death. The Senate Transportation Committee voted unanimously on June 19, to advance a bill that is intended to be proactive on the issue of ice removal from vehicles. Drivers would be required to make “reasonable efforts” to remove snow or ice from all parts of their vehicles within 24 hours of a weather event. Offenders would face a maximum fine of $1,500 if the wintry precipitation causes serious injury or death. The bill would include an additional protection allowing police to ticket drivers between $25 and $75 for failure to clear snow or ice before they take to the roads. Additional information on the legislation can be found here.
FMCSA’s Hours-of-Service (HOS) Agricultural Rule Passes through the Office of Management & Budget (OMB). A pre-rule impacting the HOS for drivers delivering agricultural commodities was approved by the White House’s OMB on Friday, June 21. The next step in the process by the FMCSA will be publication of the advanced notice of proposed rulemaking in the Federal Register, so industry stakeholders will have an opportunity to comment on the rule. The FMCSA is determining to what extent it should revise or clarify the definitions of “agricultural commodity” or “livestock” in the HOS regulations. Current regulations exempt agricultural commodity and livestock haulers from the HOS when operating within a 150-air-mile radius during planting and harvesting season.
US DOT Works to Streamline Licensing Process for Prospective Commercial Motor Vehicle Drivers: The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced June 27th a proposed rule to streamline the process for men and women interested in entering the trucking workforce. The proposed rule is intended to allow states greater flexibility in conducting skill tests for individuals seeking a commercial driver’s license (CDL). “The Department is committed to reducing unnecessary barriers to employment for men and women interested in obtaining jobs in the trucking industry,” said U.S. Secretary of Transportation Elaine L. Chao. Federal rules currently do not permit a CDL skills instructor who is also authorized by the state to administer the CDL skills test to perform both the instruction and the qualifying testing for the same CDL applicant. This proposal would eliminate that restriction and permit states the discretion to allow qualified third-party skills trainers to also conduct the skills testing for the same individual. The Notice of Proposed Rule Making can be accessed here.
The Number of Truckers is at an All-Time High: The US Census Bureau released information detailing the updated characteristics in the American Trucking Industry. A statistic of note, in 2016 the number of employer and self-employed trucking businesses reached 711,000, surpassing the pre-recession high. Additionally, among younger truckers under at 35, more are women, Hispanic and are more educated than their counterparts age 55 and older. Between 2012 and 2016, the number of trucking businesses group almost 16%, outpacing total growth across all industries. The full report can be accessed here.
CVSA’s Safe Driver Week set for July 14-20 with a Focus on Speeding: Drivers’ actions contributed to a staggering 94% of all traffic crashes, according to the National Highway Traffic Safety Administration’s (NHTSA) 2015 Traffic Safety Facts report. In response to this issue, law enforcement personnel will be on the lookout for commercial motor vehicle drivers and passenger vehicle drivers engaging in dangerous driver behaviors July 14-20 as part of the Commercial Vehicle Safety Alliance’s (CVSA) Operation Safe Driver Week. Drivers engaging in unsafe driving behaviors will be pulled over by law enforcement and may be issued a warning and/or citation. The full press release is available here.
US DOT Launches Program to help Veterans & Reservists find Jobs in the Trucking Industry: The U.S. Department of Transportation’s FMCSA announced on June 17th that it is accepting applications for a pilot program to permit 18-20 year olds who possess the U.S. military equivalent of a commercial driver’s license (CDL) to operate large trucks in interstate commerce. “This program will help our country’s Veterans and Reservists transition into good-paying jobs while addressing the shortage of truck drivers in our country,” said U.S. Transportation Secretary Elaine L. Chao. To learn more about this program, click here.
Cases
Cargo
When dealing with a household goods carrier an injured shipper is not permitted to sue the motor carrier’s agent. The Southern District of Texas dismissed the complaint against the agent, allowing only a Carmack claim to proceed against the motor carrier. The claim for attorney’s fees was dismissed with leave to renew if the plaintiff could allege the statutory requirements which address the right to recover fees. Khalil v. Mayflower Transit, LLC, 2019 WL 2355148
The Carmack Amendment does not apply when the loss admittedly occurred in Mexico. The Southern District in California dismissed the action sending the plaintiff to seek a remedy in Mexico for the loss. Indemnity Insurance Co. v. Servicios, 2019 WL 2269948
Although we generally limit cases in this section to cargo related matters, I saw an interesting case involving the interpretation of “property of others” under an inland marine policy. The case arose from a loss to third party goods held at a storage facility. The Court of Appeals in Michigan concluded that the policy did not establish plaintiffs as insureds under the policy, nor were plaintiffs third-party beneficiaries under the policy The court held that the customers were members of a broad class whom the policy recognized as, in certain circumstances, potential recipients of incidental benefits from the policy. Plaintiff had no right to seek to enforce the contract. Farm Bureau Ins. Co. v. TNT Equip, Inc. 2019 Mich. App. LEXIS 3296
Auto
Summary judgment on a rear end collision is very difficult for a defendant. The Appellate Division in New York agreed, refusing to give a motor carrier summary judgment on liability. Even with allegations of fault on the part of the plaintiff the defendant was unable to establish that there were no questions of fact which remained to be resolved. Dunkle v. Vakoulich, 2019 WL 2400555
Admission of vicarious liability for the actions of a driver will generally allow a trucking company to be free of claims for negligent entrustment and hiring. The Northern District of Alabama agreed on that point. It did however refuse to grant judgement on a claim of wantonness against the driver. While driving at a high rate of speed does not demonstrate inherently reckless behavior on its own, excess speed coupled with other circumstances can establish that an individual’s behavior was inherently reckless and was therefore wanton. Jones v. NES Express, 2019 WL 2285655
A motor carrier’s efforts to obtain summary judgment by seeking to bar the plaintiff’s expert testimony failed. The Western District in Pennsylvania held that the doctor would be permitted to testify that the accident in which the plaintiff struck the defendant’s disabled tractor was the proximate cause of the injuries suffered by the plaintiff. Abed-Rabuh v. Hoobrajh, 2019 WL 2298711
Negligence per se claims which are founded only on the alleged violation of a federal motor carrier safety regulation are subject to dismissal. The Western District of Kentucky concluded that even when the state had accepted the federal standards of safety as applicable to intrastate transit, that alone would not give rise to a negligence per se claim under KRS 446.070, the negligence per se statute. Tassin v. BNK Transport, Inc. 2019 2271163
The continuing saga over whether a defendant motor carrier was set up for a truck accident continues in the Eastern District of Louisiana (see last month’s edition). The Eastern District in Louisiana reversed the order denying defendants’ motion for leave to file a supplemental and amending answer to the complaint, allowing the motor carrier to spell out, in greater detail, the grounds for the fraud claim. Thomas v. Chambers, 2019 WL 2289495.
The Appellate Court in Illinois overturned a $19,000 000 + verdict which found the driver’s employer partially responsible for a truck accident, as well as the driver who hit him. The court held that it was an error to bar a witness from testifying about his observation of one driver just seconds before the accident occurred and that the evidence, if presented at trial, very likely would have changed the jury’s apportionment of liability between the two defendants. The case was remanded for a new trial. This is an extensive decision addressing many issues, including sanctions for failure to maintain maintenance records. Inman v. Howe Freightways, 2019 Ill. App (1st) 172459
A motor carrier was successful in obtaining summary judgment on all claims but wantonness in the Middle District in Alabama. The court held that there was sufficient evidence for a jury to consider that the driver was wanton in operating his vehicle without sufficient sleep. The court held that under Alabama law the plaintiffs had not presented sufficient evidence to create a dispute of fact as to whether the driver was legally incompetent to operate a vehicle safely which allowed the court to give the defendant judgement on both Plaintiffs’ negligent/wanton entrustment claim and their negligent/wanton hiring, training, supervision, and retention claim. Williams v. Hickox, 2019 WL 2353049.
Despite a delay in releasing information on her expert, the plaintiff in a personal injury action was given permission to present an expert on the psychological impact of the truck accident she was in. The Middle District in Pennsylvania denied the motion in limine filed by the motor carrier. Hill v. Graen, 2019 WL 2433643
The Western District of Texas agreed that a plaintiff was not permitted to assert direct negligence claims against a motor carrier when the motor carrier was liable for the actions of the drive under the theory of respondent superior. The court also rejected the plaintiff’s claim for gross negligence, rejecting the argument that that the driver was grossly negligent because he had actual, subjective awareness of the risk involved and proceeded in conscious indifference to the rights, safety, or welfare of Plaintiffs. Neddo v. New Prime, 2019 WL 2549231
Summary judgment was granted to a bus driver by the Appellate Division in New York in his suit against a truck driver. The court held that the truck driver was negligent in striking the bus from behind on highway, where bus became disabled several hours prior to accident, bus driver parked bus completely within berm of highway and placed emergency reflective tripods on roadway behind bus while he waited for tow truck. The driver admitted following the accident that he was tired and must have fallen asleep behind the wheel. Liu v. Lowe, 2019 WL 2439770
Plaintiff’s efforts to seek to hold a trailer owner liable for a truck accident were unsuccessful in the Northern District of Mississippi. The court granted judgment on the pleading on independent liability and punitive damages claims against the defendant concluding that the plaintiff failed to allege sufficient facts to support such claims. Lee v. Goodlin, 2019 WL 2492282
The Middle District in Arkansas dismissed a personal injury action against a truck driver, concluding that there was no basis for jurisdiction over the driver who was domiciled in Texas. The fact that the driver went into Arkansas to deliver cargo was insufficient to confer general jurisdiction when the accident occurred in Texas. Biddle v. Bradshaw, 2019 U.S. Dist. LEXIS 100994
The Middle District of Pennsylvania denied a motor carrier’s request to dismiss a claim for punitive damages, concluding that it was premature based upon the facts as alleged. It did grant the carrier its request for a more definitive statement, permitting portions of the complaint to be stricken. Patrick v. Dutch Maid Logistics, Inc. 2019 U.S. Dist. LEXIS 101671
While a motor carrier is not vicariously liable for the gross negligence of a driver, it can be liable for its own gross negligence. The fact that the driver received 4 warning letters for exceeding maximum run times could possibly support a claim of gross negligence. While the Northern District in Texas dismissed the vicarious liability claim for gross negligence it would not dismiss the direct gross negligence claim. Aranda v. YRC Inc., 2019 WL 2357528
What information can you get from a motor carrier when seeking discovery relevant to the fitness of a driver following a truck accident? The Western District of Kentucky went through a litany of requests. Good review to see what they will and will not be required to produce. J.B. Burrell v. Duhonm, 2019 WL 2319525
The District of Columbia granted summary judgment to a motor carrier on direct negligence claims when the motor carrier accepted vicarious liability for the actions of the driver. The Court denied the plaintiff’s request to amend the complaint to add a claim for punitive damages based upon the driver’s driving record. In the seven years before he was hired the driver had six citations for speeding and other traffic infractions which would not disqualify him. The court held that there was no basis to assert that the motor carrier acted with evil intent, actual malice, or with reckless disregard for the safety of other when it hired, retained and entrusted its truck to the driver. Greene v. Grams, 2019 WL 2410947
Broker liability was again the source of discussion, this time in the District Court in Maryland. The court denied the defendants efforts to have a complaint dismissed on FAAA grounds. The court held that there were questions of fact as to whether the defendant was acting as a broker or a carrier. The court also noted that the plaintiff alleged that even as a broker the defendant could still be liable for negligence selection because of the out of service reports on the motor carrier which were publicly available. With respect to the motor carrier the court held that the plaintiff failed to establish a claim for intentional infliction of emotion distress or punitive damages and dismissed those causes of action. Ortiz v. Ben Strong Trucking, 2019 WL 2492812
In a related case the insurer for the trucker was permitted to deposit its one million dollar policy into the court for the loss. The court ruled that the insurer would be released from any further indemnity obligation but would have to continue to defend the motor carrier. Amguard Ins. Co. v. Ortiz, 2019 U.S. Dist. LEXIS 94643
The US Government was unable to support a defense of emergency when a military vehicle struck a tractor-trailer which was forced to stop to avoid another vehicle. The court in the Western District of Washington held that failing to adequately reduce speed in the face of a brake light does not constitute a helpless peril. The defendant was liable for the accident. Ream v. USA, 2019 WL 2191879.
A default judgment on liability was entered against a motor carrier in a personal injury action seeking damages for a fatality. The Northern District in Alabama did refuse, however, to grant a default on a claim for negligent entrustment or punitive damages. The matter will proceed to trial on the punitive damages issue. Peace v. Rock, 2019 WL 2578079
In a lengthy opinion the Eastern District of New York concluded that a primary insurer did not act in bad faith in failing to settle a truck accident claim within the policy limits, subjecting the excess insurer to exposure. The court held that the fact that the primary insurer “may have greatly overestimated the likelihood that its policyholder would not be found liable for the accident is indicative of an error in judgment, not bad faith” Ohio Casualty Insurance Co. v. Twin City Fire Ins Co. 2019 WL 252527
One motor carrier was successful in convincing the Northern District in Indiana to grant it a new trial following a one million dollar verdict. The court concluded that the medical evidence simply did not support such a verdict. Plaintiff had the option of a new trial or accepting a reduction of the judgment to $250,000. Spinneneweber v. Laduver, 2019 WL 2591017
Worker’s Compensation
Was a temp an employee or not when he was injured doing a service outside the scope of his contracted services? The Supreme Court of Alaska reversed the grant of summary judgement to the motor carrier, concluding that there were questions of fact on whether he was an employee, and whether the actions were outside the scope of special employment, and therefore subject only to worker’s compensation. Buckley v. American Fast Freight, Inc. 2019 WL 2556486
The District Court in Idaho concluded that a truck driver was not prevented from pursing a third party for injuries suffered during a delivery. While the defendant argued that it was a statutory employee for the purposes of the worker’s compensation exclusive remedy defense the court concluded otherwise. Schuler v. Battelle Energy Alliance, LLC. 2019 WL 2477609
Thanks for joining us,
Jean & Chad
