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Bits & Pieces

December 2020

Happy New Year to you and yours!!!

The crazy year of 2020 is almost complete…thankfully. I’m not sure how else to refer to what 2020 was. So many of the communications received and sent since March opened with something like this: “I hope you and your family are safe and healthy during this crazy time.” At CAB, we all hope and pray that your 2021 is filled with optimism for a brighter future as we steadily move toward the light at the end of the tunnel and a return to normalcy…whatever that ends up being. Who knows, maybe we’ll have an opportunity to meet in person at a conference, workshop, training or the like. Regardless, congratulations for making it to 2021. Let’s make it the best year ever!

CAB Live Training Sessions

Just a quick reminder that last month’s sessions, CAB for Loss Control and Maximizing CAB List Features for Success were both recorded and are available for viewing at your leisure. We’ve had a number of people reach out to us because they were not able to attend in person. Rest assured, we record all our Live Training Sessions and normally post them within 24 hours. They are available at the link below. Additionally, our complete library of recorded webinars are available in the Tools menu under Webinars or by clicking here. This month we will present two new live training sessions:

Tuesday, January 5th @ 12p EST: Sean Gardner will provide a 30 minute focused VITAL+™ Training. VITAL+™ allows users to go beyond the CAB Report and know the full history with our Vehicle Inspection Tracker & Locator (VITAL) search engine. See historical data on a VINs, license plates, or a specific DOT#. Every inspection, violation, & accident is at your fingertips! Attend this session to maximize your knowledge and use of this great tool! Click here to register.

Tuesday, January 19th @ 12p EST: Mike Sevret, will lead a focused training titled Grow your Business with SALEs™-Targeted Leads Generator. This session will show you how to target companies within your specific appetite with over 100+ filters. Search by insurance renewals, fleet size, commodities, and many other options. Click here to register.

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

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

Follow us at: CAB Linkedin Page CAB Facebook Page

CAB’s Tips & Tricks: New Feature in Shippers Section

This month’s enhancement focuses on the Shippers section of the Inspections / Accidents tab in the CAB Report. This section provides a listing of the organization and the number of inspections for each of the shippers for the specific motor carrier. Basically, a listing of all shippers listed on a manifest at the time of inspection. Those familiar with this section will see no change, however when you click on the shipper name, you will be taken to a new screen that will list all the shippers with that name. This motor carrier has 5 inspections for USPS (United States Postal Service).

As the example shows, when clicked, USPS comes back with 7,547 inspections for 1,859 DOT numbers. You will notice there are a total of 159 shippers that contain USPS, most with a specific distribution center and/or city listed.

From this point, you can filter, choose all or select specific shippers to ‘Get DOTs for Selected Shippers’ and you can ‘Analyze Shipper’s Inspections’. Users have requested ways to better understand shippers and how they affect motor carrier inspections. Additionally, it allows for greater understanding of which motor carriers are providing transportation services for specific shippers. From an inland marine and cargo perspective, understanding shippers is a very important part of the underwriting process. Most lines of coverage take shippers into consideration as well. Shipper information is very useful for Loss Control and the Claims Process as well.

NOTE: Prior to this enhancement, when the shipper was clicked, a user would be sent to a Google search for that shipper. That functionality is still available if you highlight the shipper and use the right click function. From there you will be able to conduct a web search.

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

THIS MONTH WE REPORT:

FMCSA Issues Final Rule to Streamline Process to Obtain CDL: The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today announced a final rule to streamline the process for men and women interested in entering the trucking workforce. The new rule will allow states to permit a third-party skills test examiner to administer the Commercial Driver’s License (CDL) skills test to applicants to whom the examiner has also provided skills training. Federal rules previously prohibited a third-party CDL skills instructor who is also authorized by the state to administer the CDL skills test from performing both the instruction and the qualifying testing for the same CDL applicant. The final rule announced today eliminates that restriction and permits states, at their discretion, to allow qualified third-party skills trainers to also conduct the skills testing for the same individual. For additional information on the Final Rule, click here.

CVSA Releases 2020 International Roadcheck Results. Out of Service Rate was 20.9%: More than 50,000 North American Standard Level I, II, III and V Inspections were conducted throughout Canada, Mexico and the U.S. during the Commercial Vehicle Safety Alliance’s (CVSA) three-day International Roadcheck commercial motor vehicle and driver inspection and enforcement initiative. The overall vehicle out-of-service rate in North America, for Level I, II and V Inspections combined, was 20.9%. This year’s International Roadcheck took place Sept. 9-11, 2020.

For additional detail and specifics related to North America, U.S., Canada and Mexico results, click here.

Traffic Fatalities Reduced for Third Consecutive Year in 2019: The U.S. Department of Transportation’s National Highway Traffic Safety Administration released its annual 2019 traffic fatality data from the Fatality Analysis Reporting System (FARS). Traffic deaths decreased nationwide during 2019 as compared to 2018, and alcohol-impaired driving fatalities decreased to the lowest percentage since 1982. There were 36,096 fatalities in motor vehicle traffic crashes in 2019. This represents a decrease of 739 (down 2%) from the reported 36,835 fatalities in 2018, even though vehicle miles traveled (VMT) increased by 0.8%. As a result, the fatality rate for 2019 was 1.10 fatalities per 100 million VMT – the lowest rate since 2014, and down from 1.14 fatalities per 100 million VMT in 2018.

Fatalities decreased in most major traffic safety categories in 2019 compared to 2018, including:-Passenger vehicle occupant fatalities (630 fewer fatalities, 2.8% decrease)-Pedestrian fatalities (169 fewer fatalities, 2.7% decrease)-Pedalcyclist fatalities (25 fewer fatalities, 2.9% decrease)-Alcohol-impaired driving fatalities (568 fewer fatalities, 5.3% decrease)-Urban fatalities (813 fewer fatalities, 4% decrease)

For the complete press release, click here.

President-elect Biden picks former mayor Buttigieg to lead U. S. Department of Transportation: Former presidential hopeful and South Bend, Indiana, mayor Pete Buttigieg will head up the Department of Transportation under the Joe Biden administration. The post would be Buttigieg’s first federal position should he be confirmed by the Senate. While running for the Democratic Nomination, Buttigieg proposed a $1 trillion infrastructure plan. Part of his proposed plan at the time was to require DOT to propose a vehicle miles tax (VMT) to replace the gas tax to help fund the Highway Trust Fund. His plan also included provisions for road safety to work toward reducing traffic fatalities. For more information on the nominee, click here.

68% of CDL Drivers with Drug & Alcohol Clearinghouse Violations Have Not Started Return to Duty Process: If a driver has a drug and alcohol program violation recorded against him or her in the Clearinghouse, that driver must be removed from safety-sensitive functions, including operating a commercial motor vehicle, until he or she has completed a return-to-duty (RTD) process. Select milestones of a driver’s RTD process are recorded in the Clearinghouse. The table below provides a snapshot of the number of drivers who had an open or resolved RTD process in the Clearinghouse as of December 1, 2020. Almost 42,000 drivers are in prohibited status and 32,000 have not started the Return to Duty Process. Hopefully this is a sign that the Clearinghouse is working. Specifically, identifying drivers that should be prohibited and keeping them from operating CDL vehicles until they have completed the Return to Duty Process. To review the November 2020 monthly report, click here.

FMCSA Proposes to Eliminate “Duplicative” Regulation Requiring CMV Drivers toProvide List of Convictions Annually: A notice of proposed rulemaking is scheduled to be published in the Federal Register on Monday, Dec. 14. “FMCSA expects that removing the requirement for drivers to provide a list of their convictions for traffic violations to their employers annually would reduce the paperwork burden on drivers and motor carriers without adversely affecting commercial motor vehicle safety.” Under current regulations, at least once every 12 months an interstate commercial motor vehicle driver must provide the motor carrier a list of all violations of motor vehicle traffic laws and ordinances (not including parking tickets) of which the driver has been convicted or for which the driver has forfeited bond or collateral during the past 12 months. The Notice of Proposed Rulemaking can be found here.

Transportation has its #2 Monthly Jobs Increase on Record: The transport sector gained 145,000 jobs in November, according to the Bureau of Labor Statistics. This marks the sixth consecutive monthly increase after four consecutive decreases, including a historic monthly drop in April. The increase is the largest since September 1997, when transportation employment went up nearly 180,000. That was the result of 185,000 United Parcel Services Teamster drivers walking off the job the previous month. For more BLS information on the Impact of the coronavirus on the employment situation, click here.

CASES

AUTO
The Northern District of Texas concluded that a motor carrier would not be permitted to introduce testimony from a police officer as to the cause of the accident. The court held that the officer was not qualified to opine on the physics of the accident to support a conclusion that the plaintiff hit the motor carrier when she entered his lane of travel. Bailon v. Landstar Ranger, Inc., 2020 WL 7046852

The Southern District of Texas granted partial summary judgment to a trucking company and its driver on claims of gross negligence arising from a truck accident. Plaintiff could not prove that the driver’s conduct evidenced a high level of disregard for the plaintiff or that failure to maintain a driver qualification file presented an extreme degree of risk by his employer. Tijerina v. Guerra, 2020 WL 7632259

Questions of fact remained on the issue of whether the truck driver was an employee of the trucking company at the time of an accident. The Eastern District of Missouri agreed that the defendant motor carrier had raised legitimate concerns on the issue and that the plaintiff had not proven his status as an employee at the time of the accident. Morris v. WTS Express, 2020 WL 7397000

A plaintiff in the District Court in Maine was not granted summary judgment on a rear end collision by a truck when there had been no discovery on the unexplained collision. Plaintiff would have to wait it out. Yerramsetty v. Dunkin Donuts, Inc. 2020 WL 7395138

A judgment of almost 17 million was upheld against a trucker in the Court of Appeals in Texas. The court rejected all 12 arguments raised by the motor carrier, whose vehicle had jackknifed into the roadway, causing a multivehicle accident. Gregory v. Chohan, 2020 WL 7022378

An effort to get a quick summary judgment on a bad faith suit was denied to the insurer in the Southern District of California. Suit was filed by the shipper, who hired the motor carrier who had the accident. While the insurer settled the case against the trucker and its driver, that might not be enough to relieve the insurer from an obligation to the shipper, who also sought coverage under the motor carrier’s policy. Summary judgment before discovery was completed was not an option. Skanska v. National Interstate Insurance Co., 2020 WL 6889204.

Under Kentucky law a shipper is not liable for the negligence of an independent motor carrier that it hired to transport cargo. The plaintiff’s additional argument, that the shipper had a duty to ensure that the tractor-trailer was fit for travel before it left the facility was also rejected. Stapleton v Vicente, 2020 WL 7028705

Over in the Court of Appeals in Wisconsin the court upheld dismissal of only some causes of action asserted an insurer under a direct action statute. The court held that while the policy excluded anyone using an auto under a written trailer interchange agreement (which applied to some of the proposed insured) and claims for negligent entrustment and concerted joint action were insufficiently pled, there remained material questions of fact on the question of whether one insured was operating as a broker or a carrier. If a carrier, liability could exist under federal law, keeping the insurer on the hook. Rogers v. Great West Casualty Company, 2020 WL 7250907

Plaintiff was permitted to amend a complaint to allege a claim for punitive damages based upon the actions of the truck driver. Allegations that the driver drove while under the influence of medication, which rendered her incapable of safely operating a motor vehicle, operated a motor vehicle with impaired hearing and her alertness impaired and drove in excess of the maximum allowable hours, all in violation of federal regulations was enough to allow the claim for punitive damages to proceed. The claim for spoliation of evidence was dismissed as the Western District of Kentucky agreed that it did not support an independent claim under Kentucky law. Hamernick v. Daniels, 2020 WL 6946451

The Court of Appeals in Michigan agreed that PIP benefits would not be afforded to plaintiff under his own policy when plaintiff and his son-in-law, at the time of the injury, were participating in the activities of collecting, removing, and transporting hurricane-related debris. Even though parked at the time of the accident the court concluded that the injury was closely related to the transportational function of the vehicle. LaFave v. Progressive Michigan Insurance Co., 2020 WL 6938421

A truck broker bore no liability for a truck accident in the Middle District in Georgia. The court held that the broker/carrier agreement confirmed that the motor carrier was an independent contractor and there was no evidence of an agency relationship between the two. Castleberry v. Thomas, 2020 WL 7048280

Such interesting stories in some of these cases. In a nutshell – trailer gets stuck on an overhead wire. A third party climbs up to remove the wire with a pole. A second vehicle comes down the road and also gets stuck on the wire, which yanks the wire, causing the person on top of the trailer to fall off. Who is responsible? The Court of Appeals in Ohio held that the first motor carrier could not have foreseen that anyone would climb onto a truck cab in an effort to free the cable line caught on his trailer without any obligation to do so. He was not responsible. However there were questions of fact as to whether the second driver was responsible and summary judgment was denied to that carrier. Rolling v. Kings Transfer, 2020 WL 71090195

Plaintiff’s motion to remand was granted by the Central District of California when the suit named a truck driver who resided in the state of California where plaintiff’s suit was initially commenced. Even though it was unclear whether that driver was involved in the multi vehicle accident the defendant was unable to prove fraudulent joinder by clear and convincing evidence. Gutierrez v. Whitley, 2020 WL 7056021

When the plaintiff, a truck driver, struck another tractor in the rear, the plaintiff went on the attack claiming that the defendant driver was grossly negligent in operating a vehicle without lights. The Middle District in Pennsylvania refused to grant judgement to the defendant driver on a punitive damages claim, recognizing that there were sufficient facts to support the possibility of a punitive damages claim. The vehicle owner was entitled to judgment as there was no evidence that it was aware of a defect in the vehicle. Shelton v. Gure, 2020 WL 7059634

A Virginia based motor carrier was found to have a principal office in Dallas County, Texas for venue purposes. The Court of Appeals in Texas concluded that the regional employees in Dallas were sufficiently higher level employees to support a conclusion that they were decision makers. Roach v Jackson, 2020 WL 7258061

Fighting expert testimony is always a critical part of litigation. The Western District in Texas, in addition to addressing the admissibility of medical experts, concluded that plaintiff’s safety expert would be permitted to testify generally about Federal Motor Carrier Safety regulations. He was not qualified to testify that deviation from those regulations was a cause of the crash, nor could he testify as to the contractual relationship between the parties to the transportation. Marchlewicz v. Brothers Xpress, Inc., 2020 WL 7319550

Do you have 30 days to remove from the date of service or the date of receipt of the suit? The Eastern District of Virginia addressed the split of authority on the issue, concluding that the receipt of the suit by the truck driver was the appropriate starting date when he was not home when service was made. It did not help him as he missed the 30 days for that too. Brown v. Nikloads, LLC., 2020 WL 7130786

How far can an accident Reconstructionist go when testifying about the effects of an accident? The Northern District in Alabama concluded that the defendant’s expert, Dr. Lars Reinhart, could testify on the biomechanics and the accident reconstruction, but could not opine on the medical causation of plaintiff’s injuries. Johnson v. ABF Freight System, Inc., 2020 WL 7320994

When the parties are pointing fingers at each other summary judgment is not going to be granted. The Western District of Louisiana held that determining whether the plaintiff or the motor carrier was at fault for a rear end collision when the plaintiff was driving more than 50 miles an hour under the speed limit was a question to be reserved for the jury. Nash v. Badgett, 2020 WL 6928321

Whether the defendant truck driver was negligent in side-swiping the plaintiff’s stopped vehicle, or the plaintiff pulled out into the defendant’s vehicle remained a question of fact precluding summary judgment. The Supreme Court in New York concluded that there were questions of fact on that issue, as well as whether the plaintiff suffered a serious injury. Gibbs v. Navillus Tile, Inc., 202 N.Y. Misc. LEXIS 10719

New Jersey law requires a commercial motor vehicle carrier to provide the minimum insurance coverage amount of $750,000, when engaged in interstate or intrastate commerce, as prescribed by N.J.S.A. 39:5B-32 and N.J.A.C. 13:60-2.1, even when an individual is not listed as a covered driver on the policy. The Appellate Division reversed the trial court ruling which limited the exposure to $35,000.The policy did not contain an MCS-90. Rafanello v. Taylor-Esqivel, 2020 WL 6833857

When the auto liability insurer settled a claim for policy limits, protecting the motor carrier and its driver, it still faced a potential claim from the owner of the tractor-trailer. The Southern District of Indiana denied the plaintiff’s request to stay the action pending the resolution of the personal injury action, concluding that the resolution of the coverage case was not dependent upon the outcome of the underlying action. Penske Truck Leasing Co., v, Westfield Ins. Co., 2020 U.S. Dist LEXIS 228661

CARGO
Preemption again! The Northern District in Texas dismissed all state claim claims against a household goods carrier for losses arising from an interstate move, except for claims for conversion and overcharges. Hilgers v. VIP Moving & Storage, Inc., 2020 WL 7059589

A motor carrier was permitted to file a petition to record the testimony of a driver in anticipation of a suit for cargo damages. The Southern District of Ohio agreed that the fact that the driver was diagnosed with ALS and has stopped working was sufficient to warrant the testimony of the driver being preserved even though a suit for recovery for the cargo loss had not yet been filed. Go-To Transport v. DMAX, Ltd., 2020 WL 7237282

State law breach of contract claims asserted against a broker was not preempted by the Carmack Amendment. The Northern District of Illinois remanded the suit for cargo damages filed against the broker back to state court concluding that it had no jurisdiction over the state law claims. Quality King Distributors, Inc. v Celtic International, 2020 WL 7260799

When the plaintiff was pursuing numerous defendants for recovery for the non-delivery of a shipment of nuts the Eastern District of California denied a request for a default judgment against one of the defendants. As the remaining defendants disputed liability for the loss, contending that the plaintiff was partially responsible for the non-delivery, the risk of inconsistent verdicts was a basis for denial of the default judgment early in the litigation. Amerisure Insurance Company v. R&L Carriers, Inc., 2020 WL 4788914

When a third party plaintiff could not establish that it was acting as a shipper or consignee during the transportation it lacked standing to bring an action under the Carmack Amendment. In addition, state law claims asserted against the third party motor carrier were subject to dismissal because the only valid claim against that party was under the Carmack Amendment. Tokio Marine Am. Ins. Co. v. Jan Packaging, 2020 U.S. Dist. LEXIS 240796

If you keep pushing forward, you may ultimately get a judgment. The Middle District in Florida, after 4 attempts by the plaintiff, finally awarded a default judgment against a motor carrier. A frozen shipment of orchids in an interstate transport finally permitted a judgment under the Carmack Amendment. 673753 Ont. V. Hdz Logistics, 2020 U.S. Dist. LEXIS 230702

TOW BILLS

A trucking company was found liable for fees and expenses when it sued a towing company alleging that tow fees were excessive. The Court of Appeals in Ohio found that the suit was frivolous as the charges were found reasonable and customary. The court rejected the arguments appealing the trial court’s decision that sanctions for filing the suit were warranted. A.D. Transport Express, Inc. v. Lloyds Towing Service & Sales, LLC, 2020 WL 7260045

Thanks for joining us,

Jean & Chad

November 2020

The 2020 holidays are officially here!!!

Likely, by the time you read this, the unique, socially distanced U.S. Thanksgiving celebration will be over (Canada celebrated their Thanksgiving back on October 11th) and we can now look forward to the December Holidays. During this time we at CAB want to express our gratitude and appreciation for our Bits & Pieces readers and CAB users. We are truly thankful for the opportunity to serve the industry and will never take for granted the relationships we’ve developed over the years.

We at CAB wish everyone wellness, safe travels and Happy Holidays.

CAB Live Training Sessions

We hope you didn’t miss it, but Jean Gardner provided a tremendous training session titled CAB Claims Training in early November. It was very well attended and the feedback, not surprisingly since it was Jean, was very positive. For those of you who have had a chance to hear Jean speak, you knew you were in for a treat. I encourage you to access this session directly by clicking here. If you manage or work in the claims world, it’s worth the watch.

Our complete library of recorded webinars are available in the Tools menu under Webinars or by clicking here. This month we will present two new live training sessions:

Tuesday, December 8th @ 12p EST: Chad Krueger will present an updated session for CAB for Loss Control. This session will address recent enhancements to the CAB ecosystem and provide an updated overview of how to use CAB for Loss Control and Risk Improvement. Suggested attendees are those that focus on safety, loss control, risk management and the like. This session is also very popular for underwriters, producers, account executives and the like as well. Don’t miss out!

Tuesday, December 15th @ 12p EST: Mike Sevret, Sr. Account Manager, will lead a focused training specifically related to one of CAB’s best management features titled, Maximizing CAB List Features for Success. This session will detail CAB List features and how to use them to monitor your book of business, be they insureds or prospects. Mike will demonstrate how to set up triggered alerts, analyze the health of your book of business to recognize additional clarity and growth!

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

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

Follow us at: CAB Linkedin Page CAB Facebook Page

CAB’s Tips & Tricks: New menu shortcut to save you time!

As noted by the title above, this month’s tip focuses on a new shortcut that has been designed to save you time. If you ever find yourself switching between CAB Reports®, this shortcut will make your life a bit easier. Now, when you hover over Carrier Central at the top menu, you will notice additional options are available. In addition to New Search and My Workspace, you will now see the CAB Report® header and below that, the last 5 CAB Reports you’ve accessed. Additionally, when you hover over the name of the entity, additional options are available to allow you to shortcut to specific tabs of the CAB Report®. I encourage you to take advantage of this new shortcut to enhance your use and experience in CAB.

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

THIS MONTH WE REPORT:

FMCSA Changes Definition of Agricultural Commodity: The new definitions will help entities understand whether federal HOS exemptions apply. Motor carriers transporting agricultural commodities need to clearly understand the terms within the definition in order to determine whether they qualify for HOS breaks. The term agricultural commodity had been broad in nature and created confusion on what cargo qualifies under the HOS rules. As a result, FMCSA revised its definitions in §395.2 to clarify several terms within the “agricultural commodity” definition.

  • “Any agricultural commodity” was revised to mean horticultural products at risk of perishing, or degrading in quality, during transport by commercial motor vehicle, including plants, sod, flowers, shrubs, ornamentals, seedlings, live trees, and Christmas trees.
  • “Livestock” now means livestock as defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 1988 [7 U.S.C. 1471], as amended, insects, and all other living animals cultivated, grown, or raised for commercial purposes, including aquatic animals.
  • “Non-processed food” was added to the list of definitions. It means food commodities in a raw or natural state and not subjected to significant post-harvest changes to enhance shelf life, such as canning, jarring, freezing, or drying. The term includes fresh fruits and vegetables, and cereal and oilseed crops which have been minimally processed by cleaning, cooling, trimming, cutting, chopping, shucking, bagging, or packaging to facilitate transport by commercial motor vehicle.

For more information on this rule, click here.

Thanksgiving is a Prime Opportunity for Cargo Theft: Each holiday period, cargo thieves seek to exploit the abundance of loaded trailers and warehouses that will remain unattended for an extended period of time. In order to inform industry professionals of the highest theft risks, CargoNet reviewed trucking theft data from the Tuesday prior to Thanksgiving to the Monday following Thanksgiving for 2015 to 2019. 123 theft events in the days leading up to Thanksgiving or the days immediately after.

Supply chain professionals can mitigate theft by parking unattended equipment and cargo in high-security yards with tall fences, surveillance video, and high-visibility lighting. Consider investing in high-security locks and seals to prevent costly trailer burglaries and tracking devices to monitor unattended equipment.

The biggest noteworthy theft from previous Thanksgiving weeks: $527,863 theft of coffee and peanuts, yes, coffee and peanuts, from a warehouse in Union City, Georgia. For the complete CargoNet infographic, click here.

New York Trucking Company Owner Charged with Lying to the FMCSA: According to the complaint, the defendant owned and controlled a trucking business called Dallas Logistics. The company was put in the name of a nominee owner to conceal the fact that it was affiliated with another trucking company, Orange Transportation, that Kirik also controlled. Orange Transportation had received a negative rating from the Department of Transportation, and that negative rating would have been applied to Dallas Logistics had the true relationship between the two entities been disclosed to the Federal Motor Carrier Safety Administration. In order to prevent the government from learning that the two entities were related and affiliated, Kirik directed his employees to create and present false documents and representations to the Federal Motor Carrier Safety Administration. The charges carry a maximum penalty of five years in prison and a $250,000 fine.

***It is important to note that CAB’s Chameleon Carrier identifier highlights this relationship through alerts in Carrier Central and the Chameleon Carrier Report (see below). When Dallas Logistics is searched, it has a Chameleon Carrier match with Mains Street Logistics, which has as additional 5 Chameleon Carrier matches. We encourage you to use the Carrier Central Alerts to identify interrelationships between motor carriers. For more information on this case, click here.

American Transportation Research Institute (ATRI) Releases Study, An Analysis of the Operational Costs of Trucking :2020 Update: Lessening freight demand reduced costs to operate a truck in 2019, according to ATRI. The average marginal cost per mile incurred by motor carriers in 2019 decreased by 9.3% to $1.65. But that was still 6 cents per mile higher than during the last freight softening in 2016. In 2019, trucking costs contracted from $1.821 to $1.652. The cost per hour fell to $65.11 from $71.78 in last year’s report. The economic softening, combined with lower fuel prices and other factors, decreased the marginal cost of trucking. As noted by the table below, all marginal costs reduced between 2018 and 2019, except tolls. To review the complete report, click here.

COVID Related CDL Waivers Likely Won’t be Extended. The grace periods for expired CDLs and related credentials, extended repeatedly during the COVID-19 pandemic, are coming to an end, said a Federal Motor Carrier Safety Administration official. The update was provided mid-November by Joe DeLorenzo, director of FMCSA‘s Office of Enforcement & Compliance, during a virtual User Summit. He noted for drivers that the intention when it comes to expired CDLs, medical certification renewals, hazmat endorsements and more is to get back on schedule with the sunset of the most recently issued waiver. That one extended everything out through the end of the year after a series of one-month extensions.

CDC Updates COVID Guidelines for Truckers as Pandemic Worsens: In short the CDC states: As a long-haul truck driver, you spend many hours alone in the cab of your truck. However, there are times when you will be at increased risk of exposure to COVID-19. For long-haul truck drivers, potential sources of exposure include having close contact with truck stop attendants, store workers, dock workers, other truck drivers, or others with COVID-19, and touching your nose, mouth, or eyes after contacting surfaces touched or handled by a person with COVID-19. Additional information for Long Haul Truckers can be found here. If you have not already, I encourage you to share this updated information with the trucking organizations you work with.

ISS (Inspection Selection System) CAB Values Snapshot as of November 11, 2020: Have you ever wondered what the overall motor carrier population looks like in relation to the ISS-CAB Scores. Well, wonder no more. Below is a brief statistical summary for the active motor carriers operating today. 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. ISS scores are as of the snapshot date listed at the top of the section. 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.

Final Notice: Owner Operators and the Drug & Alcohol Clearinghouse: The FMCSA wants you to know the deadline for owner-operators operating under their own authority to run their first query with FMCSA’s Drug & Alcohol Clearinghouse is January 5. As a self-employed CDL driver and operating under your own USDOT Number each of them will need to register as an employer to conduct required annual queries in the Clearinghouse. For complete information on Owner Operator responsibilities with the D&A Clearinghouse, click here. If you work with Owner Operators, help spread to word to ensure they are taking the appropriate steps to stay in good standing with the D&A Clearinghouse.

CASES

AUTO

Here is a series of opinions in one case:

It is not easy to convince a court that a shipper is liable for a truck accident involving the trucking company engaged to transport the shipper’s goods. The Western District of Missouri dismissed all claims against the shipper when the plaintiff could not assert any facts to support a claim that the shipper controlled the actions of the driver. Monroe v. Freight All Kinds, 2020 WL 6588999.

The motor carrier who subbed or brokered out part of the transportation was not as successful. While the court agreed that a claim of negligence per se was not supported, it did conclude that claims of vicarious liability and Negligent hiring/Training/Supervision/Entrustment could be asserted against the motor carrier. 2020 WL 6588353.

The downstream entity who hired the driver was also unsuccessful in obtaining dismissal of anything other than the claim for negligence per se. There were just too many questions as to whether this entity exercised control over the driver. 2020 WL 6588354

The court also considered the admissibility of the plaintiff’s expert, concluding that Christina Kelly was qualified to opine on whether the truck driver should have seen and avoided the plaintiff and the standards that the motor carrier was to have met. 2020 WL 6588352

The court also considered whether related entities would remain as defendants in this suit. The answer was yes. When the two companies had the same owners, all employees were employed by one company, they were both located in the same headquarters and even the corporate representative was unclear as to who was the motor carrier, the causes of action against each would continue, other than claims for negligence per se. 2020 WL 6588958 and 2020 WL 6589000

The imposition of case-terminating sanctions on a trucking company for spoliation of evidence was overturned by the Supreme Court of Nevada. The court held that the district court’s sanction order was predicated on its finding that the motor carrier had a pre-litigation duty to preserve discarded parts of the defective vehicle, or at least, to take pictures of them before throwing them away. The motor carrier conceded that it knew litigation was pending or reasonably foreseeable when it discarded the parts, but denied that it knew or should have known the discarded parts were relevant. MDB Trucking v. Versa Products Company, 2020 WL 6530853

Claims for negligent hiring, training entrustment, retention, and contracting, as well as claims for violations of federal safety regulations and punitive damages were dismissed by the Western District in Kentucky. The court held that the plaintiff failed to allege any specific facts to support the general allegations made by the plaintiff. The court did grant the plaintiff the ability to amend the complaint if she could support the allegations with actual facts. Seemann v. Copeland, 2020 WL 6434852

Biomechanical engineering expert, Joseph Cormier, Ph.D was permitted by the Eastern District of Louisiana to testify regarding his crush analysis for a rear end collision between two truck drivers. He was not permitted, however, to opine on medical causation. Williby v National Casualty Company, 2020 WL 655940

It was too premature for the court to agree to dismiss a punitive damage claim against a motor carrier and its driver. The Superior Court in Delaware determined that the operator’s driving record revealed a history of driving violations, collisions, and hours of service violations from which a jury reasonably could infer he exhibited a pattern of inattentive driving and disobedience of safety standards, subjecting the driver and his employer to punitive damages. Tighe v. Castillo, 2020 WL 6624977

Punitive damages against the trucking company would not be an option for rail passengers which were injured when the train they were in hit a truck stuck on the tracks. The District Court in New Jersey held that while the motor carrier could bear corporate liability for the loss, there was no evidence that any of the actions of the motor carrier or the driver were malicious. Jarka v. Holland, 2020 WL 6707955

A motor carrier was successful in obtaining summary judgment in a suit seeking damages for an accident when the carrier’s tire blew and struck the plaintiff. The Middle District in Tennessee held that there was no question of fact remaining to be resolved. There simply was no evidence that the carrier had not properly maintained the equipment or that the driver was not operating the vehicle properly. Harden v. Stangle, 2020 WL 6685525

Over in New Jersey the court held that the plaintiff had not fraudulently sued the driver of a truck in order to defeat diversity. The trucking company tried to argue that since it was liable for the actions of the driver there was no need to have the driver in the suit. The court disagreed, sending the case back to the state court. Bae v. Virginia Transportation Corp., 2030 WL 6268675

The driver of a truck had his third party complaint dismissed against the employer of the second truck involved in the loss. The Southern District in Illinois held that the driver had failed to allege any facts to support bald allegations that the third party defendant breached a duty to maintain the trailer. He was, however, given the opportunity to amend the third party complaint. Dowdy v. Suliman, 2020 WL 6363697
Direct claims will not be permitted against the motor carrier when vicarious liability is accepted. The Eastern District of Louisiana dismissed the direct claims. Meyer v. Jencks, 2020 WL 6385808

According to the Eastern District of Missouri, claims of negligent brokering and vicarious liability against a trucker broker were not preempted by Federal Aviation Administration Authorization Act of 1994 (FAAAA). Plaintiff alleged enough facts to create a potential that the broker controlled the operations of the carrier. Mendoza v. BSB Transport, 2020 WL 6270743

The supplier of cargo was subject to jurisdiction in the state of delivery when the driver was injured after the product was delivered. The Western District of Louisiana held that when the defendant had an agreement to procure and deliver the cargo to Louisiana, albeit through a carrier, and it still owned the cargo while in transit it availed itself of the benefit of the state’s laws and therefore could be subject to suit. Jackson v. Lotte Chemical Louisiana, LLC., 2020 WL 6220160

The District Court in New Mexico agreed that the occurrence of a generic vehicle accident was not, standing alone, evidence of an employer-carrier’s negligence in training, supervising, hiring or entrusting its drivers. The court agreed that those claims should be dismissed against the motor carrier. Luman v Balbach Transport, Inc. 2020 WL 6392765

You cannot get a default judgment against a motor carrier when you have not alleged sufficient facts to support a claim that the motor carrier was liable for the actions of the driver. Where the plaintiff did not sufficiently allege facts to support a claim that the driver was operating within the scope of his employment at the time of the accident the default judgment was entered only against the driver. Karp v. Jenkins, 2020 WL 6504639

CARGO

When the motor carrier cannot defeat the plaintiff’s prima facie case for damages when a shipment of pet food was destroyed in a one vehicle accident, the plaintiff gets summary judgment. The Middle District of Pennsylvania held that the plaintiff was entitled to its selling price as it clearly did not collect the money it would have received if the shipment was delivered to its customer. Pets Global, Inc. v. M2 Logistics, Inc. 2020 WL 6381453

The Northern District in Illinois gave a big boost to a trucking company who destroyed a shipment of pharma during the last leg of an international shipment. The international bill of lading contained a one year suit clause which was held applicable to the motor carrier. The limitation was held applicable even with arguments based upon unreasonable deviation and gross negligence. Elco Insurance Co. v. Spirit Trucking Co., 2020 WL 6343135

Carmack preemption! The Western District in North Carolina concluded that the Carmack Amendment was the exclusive remedy for claims against an interstate motor carrier. Despite efforts to argue that a limitation of liability was not valid when the motor carrier was negligent, the court enforced the .60 cent per point limitation of liability. German v Bekins Van Lines, Inc. 2020 WL 6263169

A defendant’s attempt to remove a case eight months after suit was filed on the theory that the plaintiff was now asserting a claim under the Carmack Amendment failed in the Northern District of Texas. Defendant attempted to argue that plaintiff’s discovery response showed he was asserting new state law claims, such as a DTPA claim, that were preempted by the Carmack Amendment in his suit for damages arising from the wrongfully withholding of a shipment of vehicles. The court held that plaintiff had not amended his complaint to assert anything new and the time to remove had long expired. Egbuna v. Air Cargo Transport Services, Inc., 2020 WL 6468162.

The Middle District in Georgia held that plaintiff had properly served the motor carrier in her suit for damages to a shipment of household goods. The court agreed that the default judgment was not void and further agreed that the plaintiff was entitled to recover attorney’s fees under the statute which provided those fees in suits for damages to household goods. Barnes v. Guaranteed Price Movers, Inc. 2020 WL 6384409

When a household goods mover wrongfully withholds goods due to a dispute over billing, it runs the risk when the customer buys replacement goods. The Southern District in California held that the motor carrier was liable for damages when the plaintiff bought a TV and a bed after the goods were held for an extended period of time, even though plaintiff eventually got them back. Inigo v Express Movers, Inc. 2020 WL 6802309

The District Court in Arizona concluded that the plaintiff had established a prima facie claim for recovery against the motor carrier for damage to a printer in transit. The court concluded that the motor carrier was unable to establish a defense of improper packing, which also led to the dismissal of the negligence claim against the company which packed the printer. J&N Agency v. National Superior Express Limited, 2020 WL 6585542

Sometimes technical issues can tie up recovery for some time. The Southern District of Florida held that when a cargo owner received relief from the bankruptcy court to proceed against the motor carrier that relief did not automatically extend to the subrogating insurer. The plaintiff was allowed to proceed only on its claim in excess of the claim subrogated to its insurer. The plaintiff’s state law claims were also dismissed as the claim was preempted by the Carmack Amendment. IAG Engine Center Corp. v. Cagney Global Logistics, Inc. 2020 WL 6736293

WORKER’S COMPENSATION
The Supreme Judicial Court in Massachusetts held that there were sufficient significant contacts between Massachusetts and the claimant’s employment as truck driver for a company headquartered in Pennsylvania to have subject matter jurisdiction to adjudicate the claim arising out of an injury sustained in Maine. As the claimant was a Massachusetts resident licensed by Commonwealth to drive commercial vehicles, claimant found job from advertisement in local Massachusetts newspaper, claimant drove employer’s truck thousands of miles in Massachusetts during his employment and had contact with Massachusetts on more than half the days he worked, claimant returned to Massachusetts for medical care after his injury, and employer’s workers’ compensation insurer provided insurance to Massachusetts companies jurisdiction would exist. Claim of Mark Mendes 2020 WL 6326586

TOW COMPANIES

This is one to watch to see where it goes. In a suit by a tow operator for compensation for towing, storage and clean up costs, the Western District of Pennsylvania considered the counter-claims filed by the various parties with an interest in the equipment and cargo. It dismissed most of the causes of action but did allow a claim for declaratory judgment, and breach of the duty of good faith and fair dealing to be asserted against the tow company. Ferra Automotive Services, Inc. v. B&T Express, Inc., 2020 WL 65459994

In a related case the court dismissed the claims asserted against the trucker’s insurer, concluding that the tow company was not an insured or a third-party beneficiary of the policy. The tow company could not seek payment for its charges from the insurer. Ferra Automotive Services, Inc v. Certain Underwriters at Lloyds, 2020 WL 6546000

Thanks for joining us,

Jean & Chad

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