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Bits & Pieces

May 2020

Welcome to the unofficial start to summer!

As a veteran, Memorial Day holds a special place in my heart, as I’m sure it does with many of you. I hope everyone was able to enjoy some time with loved ones and took a few moments to appreciate and acknowledge the sacrifices of those who gave their life for our country. Even amid the issues and concerns of the current day, I was glad to see many Memorial Day events were able to be held with social distancing considerations taken into account. Please continue to take precautions to remain safe and healthy during this time. Hopefully, we’re getting to the end of it and we can return to some semblance of normal in the near future.

Live Training Sessions

Our live training continues to have a great response from our users. Last month we previewed our New Sidelined Vehicle Auditor in the Bits & Pieces. The response to the Sidelined Vehicle Auditor has been fantastic and has seen in depth use by our insurance carrier subscribers. If you missed the webinar, it is available in the Tools menu under Webinars or by clicking here. This month we will present two new live trainings:

Tuesday, June 9th @ 12p EST: Chad Krueger & Jay Weinberg will provide a focused training session, hot topic: FMCSA’s New Crash Preventability Determination Program: Providing Clarity Using CAB’s BASICs Calculator™. The session will discuss the FMCSA’s new Crash Preventability Determination Program and how using the BASICs Calculator™, users can understand how removing eligible DOT Reportable Crashes will adjust a motor carrier’s Crash BASIC score.

Tuesday, June 16th @ 12p EST: Mike Severt will present on our reimagined SALEs™: Targeted Leads Generator. Some of you may have noticed that SALEs™ has recently sported an updated look. Don’t worry, everything you know and love is still there, but we’ve incorporated some new features as well.

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers can register for either session from our Webinars page or by logging in and clicking this link 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. Do not hesitate to ask questions!

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CAB’s Tips & Tricks: Crash Preventability Determination Program (CPDP) Resources

Many are aware that the FMCSA recently released the updated Crash Preventability Determination Program (more below). A number of our users have reached out to better understand how CAB will be addressing Crashes that have been determined to be not-preventable once submitted via DataQ and reviewed. Ultimately, CAB’s data and user interface will adjust to reflect the crash determinations when they come through.

We’ve also had people ask us if CAB can determine what a motor carrier’s Crash BASIC would be if specific crashes were removed. This is of interest because it can help underwriters, agents, safety services and motor carriers understand the value in completing DataQs for crashes that fit within the 16 criteria eligible under the CPDP.

The CAB Report within the “Out of Service /SAFER” tab has included a Crash Determination column in the Accident Details for many months. With the CPDP, crashes occurring August 1, 2019 or later (and falling within the 15 criteria) are eligible for a non-preventable determination. CAB’s BASICs Calculator will allow you to remove potentially eligible crashes and recalculate what the Crash BASIC’s score would be based on the current 24 months of data. This is a great tool to get a clear understanding of what submitting a CPDP DataQ could do to adjust a motor Carrier’s Crash BASIC.

Using the BASICs Calculator™, proceed to the “Inspections Tab” and click the “Filter By BASIC Violations” dropdown and then check “Crashes.” You will now see only the Crashes for the motor carrier starting with the most recent crash. From there you can click on the filter icons to the far right to remove the crashes deemed by you to be eligible for the CPDP. Click “Calculate Scores” and the adjusted BASIC scores will appear above.

The FMCSA’s Crash Preventability Determination Program is a potential game changer for motor carrier Crash BASICs. We encourage you to use CAB’s BASIC Calculator™ to provide you and your motor carrier clients clarity regarding what removing non-preventable crashes will do to Crash BASICs Scores. If you don’t have access to the BASICs Calculator™, or if you have questions regarding the tool’s features, please feel free to reach out to CAB.

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

THIS MONTH WE REPORT:

Impact of COVID-19 on Inspections and Violations: This month we have a guest contributor, Dovid Ribiat, our Senior Data Wizard, who is providing us with some insight on what effect COVID-19 is having on inspections.

Whether due to a decrease in traffic or enforcement, we have seen an appreciable reduction in the number of inspections during the COVID-19 outbreak. Compared to the same months from last year, this March has seen around 33% fewer inspections and violations, while April has seen an even more drastic reduction of 77% for inspections and 80% for violations. For March, the violation rate (violations per inspection) remained about the same but for April it dropped from 1.39 to 1.21 (-13%). There is certainly variability between states; for example, while California inspections in April were down only 43% compared to last year and Minnesota was actually up 18%, Louisiana went from 3405 inspections down to 3 (-99.9%) and Hawaii went from 207 to 0.

Additionally, the reductions in violations from different BASICs were not the same. While Unsafe Driving, Driver Fitness, Vehicle Maintenance, and HazMat were all within a few points of the overall decrease (of 80%), Hours of Service was down 89% and Controlled Substances was down 71%. Looking at it from a different perspective, the proportion of Hours of Service violations out of all violations was 43% smaller than it was last April, while the proportion of Controlled Substances violations was 46% greater.

What does this all mean for the data? The good news is the system is designed to adjust for fluctuations and variations in the data through its methodology via the BASICs Percentiles. The tables below show the distribution of violations of the BASICs Categories for the last five years (for April).

FMCSA revises the hours of service (HOS) regulations to provide greater flexibility for drivers: The final rule was announced Thursday, May 14th and will go into effect 120 days after they’re published in the Federal Register, perhaps as soon as September 15th. The Agency: (1) expands the short-haul exception to 150 air-miles and allows a 14-hour work shift to take place as part of the exception; (2) expands the driving window during adverse driving conditions by up to an additional 2 hours; (3) requires a 30-minute break after 8 hours of driving time (instead of on-duty time) and allows an on-duty/not driving period to qualify as the required break; and (4) modifies the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least 7, rather than at least 8 hours of that period in the berth and a minimum off-duty period of at least 2 hours spent inside or outside of the berth, provided the two periods total at least 10 hours, and that neither qualifying period counts against the 14-hour driving window. For more information, click here.

American Transportation Research Institute (ARTI) to Study Non-Nuclear Verdicts: Previously the organization had studied multi-million dollar Nuclear verdicts, but has shifted their main priority to the lesser awards this year. The findings are expected to be published in June according to ATRI President, Rebecca Brewster. Other research priorities for the year include: Rethinking Mileage-Based Safety Metrics, Owner-Operators/Independent Contractors in the Supply Chain, Cost-Benefit Analysis of Vehicle Miles Traveled Taxes and Impacts of Rising Insurance Costs on Industry Operational Costs. For more information on ATRI’s top research priorities for 2020, click here.

FMCSA Announces the Start of the Crash Preventability Determination Program (CPDP): Under this program, if a motor carrier has an eligible crash that occurred on or after August 1, 2019, the motor carrier may submit a Request for Data Review (RDR) with the required police accident report and other supporting documents, photos, or videos through the Agency’s DataQs website. The 16 types of eligible crashes are broken into ten main groups. (listed below).

Struck in the Rear type of crash when the CMV was struck: in the rear; or on the side at the rear.

Wrong Direction or Illegal Turns type of crash when the CMV was struck: by a motorist driving in the wrong direction; or by another motorist in a crash when a driver was operating in the wrong direction; or by a vehicle that was making a U-turn or illegal turn.

Parked or Legally Stopped type of crash when the CMV was struck: while legally stopped at a traffic control device (e.g., stop sign, red light or yield); or while parked, including while the vehicle was unattended.

Failure of the other vehicle to Stop type of crash when the CMV was struck: by a vehicle that did not stop or slow in traffic; or by a vehicle that failed to stop at a traffic control device.

Under the Influence type of crash when the CMV was struck: by an individual under the influence (or related violation, such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred, where the individual was charged or arrested, failed a field sobriety or other test, or refused to test; or by another motorist in a crash where an individual was under the influence (or related violation such as operating while intoxicated), according to the legal standard of the jurisdiction where the crash occurred, where the individual was charged or arrested, failed a field sobriety or other test, or refused to test.

Medical Issues, Falling Asleep or Distracted Driving type of crash when the CMV was struck: by a driver who experienced a medical issue which contributed to the crash; or by a driver who admitted falling asleep or admitted distracted driving (e.g., cellphone, GPS, passengers, other).

Cargo/Equipment/Debris or Infrastructure Failure type of crash when the CMV: was struck by cargo, equipment or debris (e.g., fallen rock, fallen trees, unidentifiable items in the road); or crash was a result of an infrastructure failure.

Animal Strike type of crash when the CMV: struck an animal.

Suicide type of crash when the CMV: struck an individual committing or attempting to commit suicide.

Rare or Unusual type of crash when the CMV: was involved in a crash type that seldom occurs and does not meet another eligible crash type (e.g., being struck by an airplane or skydiver or being struck by a deceased driver).

It is important to note that there are specific steps that need to be taken for the crash determination to be made. It is not an automatic process and the motor carrier will always need to complete a DataQ. Once submitted, the complete process is expected to take 60 days for the crash determination, either non-preventable or preventable, to be posted. The CAB Report® will identify and reflect any CPDP determinations that have been made. Keep in mind that 10 months (since August 1, 2019) of crashes are eligible for the CPDP program, so there is a good amount of crashes that will be eligible for review. The FMCSA has provided some very good resources including CPDP: Eligibility Guide, Submitter Guidel, FAQs, Presentation & Fact Sheet that can be used for internal education and sharing with motor carriers. For more information and resources on the FMCSA’s CPDP, click here.

National Safety Council Calculates Monthly Preliminary Motor Vehicle Fatality Estimates: Because of COVID-19 related impacts, the number of miles driven in the first three months of 2020 decreased 5.4% compared to 2019. The number of miles driven in March 2020 decreased 18.6% compared to March 2019. Deaths for 2020 to date total 8,460. This preliminary estimate is up 2% compared to the first three months of 2019. Motor-vehicle deaths in March 2020 totaled 2,690. This preliminary estimate is down 8% from March 2019. However, because of the large decrease in miles driven, the monthly mileage death rates increased 14% compared to March 2019. This increase is in spite of the 8% decrease in deaths. The mileage death rate per 100 million vehicle miles driven for March 2020 is 1.22, compared to 1.07 in 2019. For more information on the NSC study, click here.

FMCSA’s Emergency Declaration Extended: As of May 13th, the FMCSA has extended the emergency declaration through June 15, 2020. This declaration applies to all fifty States and the District of Columbia and was originally issued on March 8th, 2020. The extension continues the exemption granted from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSRs) for drivers and trucks providing direct assistance in support of emergency relief efforts related to COVID-19 outbreaks. The complete declaration can be found here.

FMCSA Expands Remote Safety Compliance Reviews due to the COVID-19 Pandemic: In new guidance issued May 20, the agency said the off-site compliance reviews will “leverage all available technology to access information and records and thus limit exposure risk for the regulated community and safety investigators.” The expanded guidance is intended to provide clarity to motor carriers, FMCSA said. According to the agency, it will remain in effect until the revocation of the presidentially declared COVID-19 national emergency. The long and short of it is that Compliance Reviews are still being during the pandemic and perhaps even more efficiently. For more information on this Guidance, click here.

CASES

AUTO

Who is responsible for injuries incurred when the bands holding the cargo break, causing a shipment of pipe to fall on the driver in the middle of the night? The Eastern District of Pennsylvania considered that issue, concluding that summary judgment was not to be granted to the manufacturer, the shipper, the packing company, or the trucking company as too many questions remained to be resolved. The court did hold that there was no basis for a claim of punitive damages against the manufacturer of the bands or the trucking company that engaged the owner operator. Shipman v. Aquatherm, L.P., 2020 WIL 1984903

Similar questions were raised in the 10th District Court of Appeals in Ohio when a driver was involved in a one vehicle accident he claimed was caused because the shipper failed to lock the pins in the rear tandem axle. The court held that there were questions of fact as to the obligations of the shipper, reversing the trial court on that issue. As to the motor carrier who tendered the load to the defendant it was entitled to summary judgment. The court held that the vehicle was operated independently and was not placarded with the motor carriers information and therefore Ohio law did not recognize a cause of action against that motor carrier. Buroker v. Pratt Industries, 2020 WL 2216203

Believing that damages are in excess of the minimum required for diversity jurisdiction was not enough to allow a trucking company to keep a case in federal court. The Middle District of Florida remanded a personal injury action back to state court when the defendant could claim only that the plaintiff’s age and claim of permanent injury had to support a claim for damages in excess of $75,000. Willingham v. Callaway, 2020 WL 2466191

The Western District of Louisiana denied a motor carrier’s request for a new trial after it was hit with a jury verdict in the amount of $4,375,017.62. The court held that the jury was not improperly swayed by sympathy for the plaintiff and that the damages were reasonable in light of similar cases which reached similar verdicts. Hall v. Landstar Ranger, 2020 WL 2616241

The District Court in North Dakota dismissed an insurer’s claim that it has no obligation to defend a personal injury action involving a vehicle not listed in the policy. The court concluded that the tractor at issue was owned by an employee and used in the insured’s business and therefore was covered under the extension for non owned autos. The court stayed resolution of the issue of indemnity pending resolution of the state court litigation. United Financial Casualty Company v. Fila Mar Energy, 2020 WL 24755581

The passenger of a truck was not liable for injuries to the plaintiff when he stepped out of the vehicle to direct the tractor into a private driver and plaintiff ran into the trailer. The Eastern District of North Carolina also dismissed the punitive damages claim against the driver. Riley v. Cephas, 2020 WL 2441416

A truck rental company sought a declaration that, under the terms of its rental agreement, it only owned the driver and trucking company $20,000 in liability coverage and not the $750,000 financial responsibility required under Connecticut regulations which match the MCS-90. The District Court in Connecticut refused to read motor carrier obligations into the rental agreement, siding with the rental company. Penske Truck Leasing v. Safeco Insurance Co., 2020 WL 2615499

Plaintiff’s request to add a claim of punitive damages against a trucking company was permitted by the Eastern District of Pennsylvania. Plaintiff was able to support the amendment by claiming that the driver was operating outside of his permitted hours of operation which was alleged to be a practice condoned by the motor carrier. Gonzalez v. Seashore Fruit & Produce 2020 WL 2571101

The Northern District of Oklahoma granted summary judgment to a motor vehicle on a claim of negligent entrustment and also dismissed punitive damage claims against the motor carrier and the driver. The court held that the driver was not operating the vehicle outside hours and that his diabetes did not render him unable to operate a vehicle. Rimes v. MVT Services, 2020 WL 2559942

Under Alabama law, the torts of negligent hiring, training, and supervision all require a plaintiff to show that the employee was incompetent to operate a commercial vehicle and that the employer knew, or should have known, of this incompetence. The Northern District of Alabama held that a plaintiff had failed to meet that obligation when all facts pointed to his being a capable driver. Those causes of action were dismissed, although claims of negligence, wantonness and respondeat superior were permitted to proceed. Shows v. Redline Trucking, 2020 WL 2527105

The Court of Appeals in Michigan upheld the grant of summary judgment to a truck driver who suffered a black out, losing control of his vehicle and striking another truck, injuring that driver. The court agreed that the sudden emergency doctrine protected the driver. The fact that he had a pre existing heart condition was not relevant as he had received the appropriate certification to driver a semi. Price v. Austin, 2020 WL 2095993

Removal is still permissible when at least one of the defendants filed the petition in a timely manner. The Eastern District in Missouri held removal was proper when the first served defendant, the trucking company, consented to the removal subsequently filed by the driver. The court also held that the motor carrier was diverse from the plaintiff, despite plaintiff’s arguments that the motor carrier had significant contacts in plaintiff’s state of residence. Knop v. Salyers, 2020 WL 2556906

A trucking company was granted summary judgment on a claim for damages stemming from a fatal truck accident when the plaintiff could not establish a legal right to assert a wrongful death claim on behalf of the decedent.. Blue v. Hill, 2020 WL 2441417

Rebuttal experts are not there to address new issues so be careful to make sure you get the right info in at the start. In the Eastern District of Kentucky the court struck all of plaintiff’s rebuttal experts on medical issues On the trucking side the rebuttal experts were not permitted to address cell phone usage or failure to follow or adhere to relevant driver’s license safety practices as they were not addressed by the trucker’s direct expert. Aung v. State Farm Fire & Casualty Co., 2020 WL 2089823

You may recall last month that we reported on a decision in which the District Court in Indiana refused to allow a plaintiff to ask hypothetical questions of a driver. The plaintiff filed for reconsideration of the court’s decision, seeking to be able to ask hypothetical questions. The court denied the request again! Estate of McNamara v. Navar, 2020 WL 2214569

A plaintiff’s request to set aside a jury verdict was denied in the Third Division Appellate Court in New York. The jury had concluded that while a truck driver and its company were negligent, the negligence was not a substantial factor in causing the collision. The truck was struck by a vehicle which caused the driver to lose control, cross the median and get involved in another accident with the plaintiff. Holownia v. Caruso, 2020 WL 2477595

Interesting case in Florida involving a multi injury accident. The trucker’s excess insurer sought to intervene in the defense case when it only had $10.00 left for indemnity payments under the policy, seeking to tender that remaining amount. The Appellate Court held that the trial court did not abuse its discretion in not allowing the intervention. The court agreed that the insurers interest, namely to be done with the case, was not appropriate for intervention. Lexington Insurance Co. v. James, 2020 WL 2299946

The Western District in Texas held that personal injury claims against truck brokers are preempted under FAAAA. The court held that “claims such as Plaintiff’s, which seek “to enforce a duty of care related to how [the broker] arranged for a motor carrier to transport the shipment” and arise out of “a broker hiring a motor carrier (and any related investigations of that motor carrier)” are indeed claims “relating to … services of any … broker” and are thus preempted.” Zamorano v. Zyna, LLC, 2020 WL 2316061

On the other hand the Northern District of Texas remanded a case back to state court when a negligent hiring claim was asserted against a broker. The Court held that section 14501(c)(1) of FAAA did not preempt Plaintiffs’ negligence claim against the broker. The Court held that the safety regulation preemption exception in section 14501(c)(2) applies to negligent-hiring claims against brokers. With no preemption there was no federal court jurisdiction and the case went back to the state court. Lopez v. Amazon Logistics, Inc. 2020 WL 2065624

CARGO

The duty to defend is always an issue in cargo policies The Court of Appeals in Minnesota held that the option to defend was ambiguous and therefore would be held against the insurer. Pay attention to this decision as it is addressing common provisions under an industry MTC form. Miss. Welders Supply Co. v. Crane, 2020 Minn. App. Unpub. LEXIS 389

It is not often that we see cases addressing the venue provisions of the Carmack Amendment. This month the District Court in New Jersey dissected the statute, concluding that New Jersey was an improper venue for a rail shipment in New York. The court also concluded that the damages occurred in New York, not in the plaintiff’s business office, which was in NJ. The court also held that the plaintiff likely failed to comply with the claim notice requirements of the Carmack Amendment. In re Lizza Equipment Leasing, LLC, 2020 WL 2465284

A limitation of liability was upheld in the Southern District of Florida. Once again there was a chain of truck brokers before it finally got to the motor carrier. The last broker had a contract with the motor carrier which contained a limitation of liability. The court held that the contract was a waiver of the Carmack Amendment and that the shipper was bound by the contract entered into by the broker. Central Jersey Transport, LLC v. Global Aeroleasing, 2020 wl 2617897

We also rarely see cases on the suit clause under the Carmack Amendment. The Southern District in Texas denied a carrier’s claim that the suit was not filed within 2 years and one day of the written declination The court held that the denial was a contingent denial, not the clear, final, and unequivocal type of denial required to commence the limitations period. Be careful to make sure that your denial is explicit. JA Solar USA v. EP Expedited Transport, 2020 WL 2113616

Are you insuring Juran Express? The Eastern District in California granted a default judgment to the plaintiff for the nondelivery of a shipment of wine, including fees and interest. USA Truck, Inc v. Jugan Express, Inc. 2020 WL 2128386

WORKERS COMPENSATION

A worker’s compensation insurer was denied the right to intervene in a personal injury action in New Mexico for payments made under California worker’s compensation rules. The court held that the right to seek recovery for payments could only be asserted directly against the insured truck driver and not against the third party tortfeasor. Carrillo v. Central Trucking, Inc., 2020 WL 2112068

The Commonwealth Court of Pennsylvania upheld the denial of worker’s compensation benefits to an owner operator. The court agreed that the worker’s compensation judge correctly determined that the owner operator was not an employee of the motor carrier and the carrier did not exercise substantial control over his operations. Balczarek v. Workers Compensation Appeal Board (Evans Delivery), 2020 WL 2314972

A farm worker was unsuccessful in seeking worker’s compensation under a trucking operations policy in the Court of Appeals in Mississippi. The court held that the trucking company was not an alter ego of the farm where the petitioner worked and there was no other evidence that waived the farm labor exemption under Mississippi law. Yates v. Triple D, Inc., 2020 WL 2126829

Generally we see cases where the insurer is seeking increased premium after an audit. This month the District Court in Minnesota was considering discovery issues arising from the motor carrier’s claim that it was improperly charged because the insurer improperly applied debits. Good read to see how the process works and what information the court will allow released to the insurer to support its rate calculation. Stan Koch & Sons Trucking, Inc. v. American Interstate Ins. Co., 2020 WL 2111349

April 2020

The End is in Sight…We Hope…

We hope this finds you and your family safe and healthy. We at CAB, like many of you, are getting a bit stir-crazy. We would like to send our heartfelt sympathy to all of those with family, friends and/or co-workers affected by the COVID-19 pandemic. We send a special cheer to all of our truckers who are helping keep the country operating! You are truly our heroes. In the meantime, CAB is operating on all cylinders. We’re here to support you all in any way we can.

During this time we are excited to continue to innovate for our users! I’m happy to announce we’re in the final stages of development for our NEW COVID-19 Sidelined VIN Auditor, which will be introduced in our Tips & Tricks below.

Live Training Sessions

Our live training continues to have a great response from our users. Last month’s training on CAB List™ and Alerts had almost 600 attendees. This month we will present two new live trainings:

Tuesday, May 12th @ 12p EST: Mike Sevret will present Using CAB: Flow & Navigation. This will be an overview of Carrier Central and the CAB Report®. Perfect for newer users or current users looking for refresher or an update on enhancements.

Tuesday, May 19th @ 12p EST: Chad Krueger and Jay Weinberg (our resident IT Wizard) will provide focused training on our new Sidelined VIN application. This is a brand new tool that will allow users to quickly identify any events that take place for designated parked or laid-up vehicles on the policy. (Additional information can be found in our Tips & Tricks section below.)

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers can register for either session from our Webinars page or by logging in and clicking this link 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. Do not hesitate to ask questions!

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CAB’s Tips & Tricks: NEW Sidelined VIN Auditor

Due to COVID-19 and the resulting situation with the economy and certain aspects of the transportation industry, we have endeavoured to provide a solution to help our insurer partners address the issue of “sidelined vehicles”. Depending on the vernacular at your organization, these vehicles may also be referred to as “laid-up” or “parked” vehicles. A number of years ago our team of programmers developed our VIN Exceptions tool, which was created to audit VIN schedules. CAB’s Sidelined VIN Auditor uses similar programming to identify vehicles that have been inspected during the sidelined periods.

Long & short, insureds and agents are reaching out to insurers to sideline unneeded/unused vehicles in order to obtain some premium relief during COVID-19. Our Sidelined VIN Auditor allows insurers to audit those sidelined vehicles regularly to determine if the vehicles have had events during the sidelined period. By using the Sidelined VIN Auditor, a CAB user can verify the status of the sidelined vehicles and ensure proper premium is being applied.

In order to use the Sidelined VIN Auditor, you will need to download the template, insert the appropriate information (there are required and optional columns) and then upload the file. From there, the Sidelined VIN tool will return a report of any vehicles on the list that has had an event during the sidelined period. From there, users will be able to expand the data to review specifics that can be downloaded so appropriate steps can be taken by the organization.

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

THIS MONTH WE REPORT:

FMCSA Issues Notice of Proposed Rulemaking Concerning Drug & Alcohol “Push” Notifications: Issued on April 28, FMCSA called for a new “CMV driving ban” meant to increase compliance with current regulations and keep drivers with drug or alcohol offenses off the road until they have complied with return-to-duty requirements. Currently, most states are not aware when a CDL holder licensed in their State is prohibited from driving a CMV due to an alcohol or drug testing violation. Consequently, there is no Federal requirement that SDLAs take any action on the license of drivers subject to that prohibition. As a result, a driver can continue to hold a valid CLP or CDL, even while prohibited from operating a CMV under FMCSA’s drug and alcohol regulations. The proposed downgrade would align a driver’s CLP or CDL status with his or her CMV driving status under § 382.501(a), thus closing the current regulatory loophole that allows these CMV drivers to evade detection. Additionally, state licensing agencies may be required to query FMCSA’s Drug & Alcohol Clearinghouse prior to issuing a CLP or CDL. More information regarding the Notice of Proposed Rulemaking can be found here.

ATRI’s Truck Activity Index Details the Rise and Fall of Operations during COVID-19: From early February into March, the data shows a spike in initial truck activity in the analyzed states of CA, FL, IL, NY, PA & WA – documenting the response to high consumer demand for items such as non-perishable food and paper products, as well as the much-needed emergency medical supplies. The analysis further documents the impacts of the stay-at-home orders that shut down major segments of the economy, with a resulting decline in April trucking operations. Of the six states analyzed, California had the earliest stay-at-home order issued on March 19. California also experienced the earliest upward spike in truck activity, occurring during the week of March 1. However, truck activity in California is now down 8.3 percent from early February. In Florida, Illinois and New York, truck activity spiked the week of March 8 but is now down on average by over 10 percent from February 9. In Pennsylvania and Washington, truck activity spiked during the week of March 15, but is now down by an average of nearly nine percent from February 9. There are initial signs of a return to normal, however. In New York, one of the earliest states to experience high numbers of cases, truck activity started a positive uptick during the week of April 12.

Expanded Emergency Declaration Under 49 CFR § 390.23 No. 2020-002 (Relating to COVID-19): As of April 8th, the FMCSA has extended the emergency declaration through May 15, 2020. This declaration applies to all fifty States and the District of Columbia and was originally issued on March 8th, 2020. The extension continues the exemption granted from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSRs) for drivers and trucks providing direct assistance in support of emergency relief efforts related to COVID-19 outbreaks. The complete declaration can be found here.

FMCSA Issues Waiver of Knowledge Test Training for Certain 3rd Party Test Examiners: The agency has issued a waiver to allow third party CDL skills test examiners, temporarily without the need for additional training, to also administer CDL knowledge tests, to address testing availability concerns caused by licensing agency closures and staff shortages due to the ongoing coronavirus outbreak. This action, in combination with FMCA’s previously published CLP and CDL waivers, are intended to allow for individuals who are seeking to become professional drivers to complete the CDL credentialing process and assist the motor carrier industry during this time of need. Click here for more information.

CAB Calculates Total Crashes and Total Per Million Miles Traveled: This table shows, for each power unit range, the total number of different types of federally reportable crashes, and the associated rate per million miles traveled. Crashes include those that occurred during the 12 month period indicated at the top of the section. Power unit and mileage data come from the most recent data we have for each carrier. Only carriers that were active during the past 12 months are included. Data is as of March 31, 2020.

How is the COVID-19 Economic Shutdown Affecting Inspections?: Our resident statistician has pulled together some very preliminary data that represents a very small period of time in the overall statistical environment…because inquiring minds want to know. As far as inspections are concerned nationwide, we’re seeing a ⅓ reduction from the previous March of 2019. Keep in mind that the Emergency Declaration referred to above, exempts many drivers and trucks from enforcement due to the type of load being transported. Digging a little deeper, if we break it down by inspection level, we see that Level I (full), II (walk-around), and III (driver-only) all had about the same percentage decrease (roughly 33%), while level V (vehicle-only) had only a 15% decrease. It should be noted that vehicle-only inspections makeup only around 3-4% of inspections nationwide, so they have a very small effect on the overall numbers. We will continue to monitor this data and report the results as more substantive data is gathered.

Federal Government to Distribute 800,000 Masks to Truck Drivers at 35 Locations: The Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA) and the Department of Transportation (DOT) are joining forces to distribute 800,000 masks at more than 35 locations throughout the nation. “Right now, professional drivers are busting their butts to care for the nation,” Todd Spencer, OOIDA’s CEO, wrote to Mr. Trump. “Their hard work and personal sacrifice should not include their health – or even their lives – if at all possible or preventable. We need a plan for them. We need help. Do it.” “Truckers are traveling around the country without access to masks, gloves, and hand sanitizer,” the Small Businesses in Trucking Coalition wrote. “With an operational budget of $665 million for fiscal year 2019, surely the FMCSA has funding available in its budget to make this a reality in accordance with the National Transportation Policy to keep the supply chain intact. America can do so much more for truckers than just #ThankATrucker.”

Motor Carrier Report Low Rates and Freight Fallout Worsens: Based on one survey from the middle of April, nearly half of carriers reported that freight levels had “decreased significantly” since the coronavirus-wrought economic shutdown. Another 35% said freight has decreased. Those numbers paint a much different picture than the survey results from the last week of March. These conditions have resulted in major financial strain, parked vehicles and layoffs in the industry. With no immediate end in sight, motor carriers will have to make tough decisions to maintain operations in the near term.

CASES

Auto

A trucking company which plaintiff claimed was involved in a hit and run was successful in having the action dismissed when the plaintiff could not prove that the defendant was operating the tractor at the time of the accident. The Court of Appeals in Tennessee held that when the plaintiff, while being deposed, could only claim that the motor carrier’s name was on the trailer, that was insufficient to support a claim against the motor carrier who routinely interchanged equipment with other carriers. Affainie v. Heartland Express Maintenance Services, 2020 WL 1549600

A win for the insurer in the 7th Circuit when the court held that the insured failed to obtain verification that an ambulance was reinstated on the policy before the accident. The court held that policy required more than notice before change took effect, and therefore it was not modified to include the ambulance subsequently involved in collision by insured’s notice to insurance agent to reinstate that vehicle. The court also held that the insurer could not be estopped from denying coverage for the ambulance on the basis that commercial motor carriers had to have liability coverage for their entire fleet when the vehicle weighed under 10,000 pounds. Markel Insurance Co. v. Rau, 2020 WL 1808872

Plaintiff’s suit arises from an fatal accident in which plaintiff hit an overturned trailer belonging to defendant. Defendant, in turn, brought a third party action against another trucking company which struck plaintiff from the rear. The Southern District in West Virginia dismissed the third party complaint concluding that under West Virginia law there was no basis for either a contribution or indemnity claim when the primary defendant was partially at fault for the accident. French v. XPO Logistics Freight, 2020 WL 1879472

An insurer’s request for summary judgment that its no-trucking use policy provided no coverage for an accident when the vehicle was under lease was granted in the Western District of Oklahoma. The court held that the policy was unambiguous. The court concluded that when the vehicle was leased to a motor carrier and the driver worked for the motor carrier there was no time that it was not being used by the carrier. Great West Casualty v. Fast Haul, Inc., 2020 WL 1814915

When the value of a personal injury action remains an issue the defendant cannot necessarily support removal of the action under the diversity statute, even when the plaintiff fails to take a position on damages. The District Court in South Carolina remanded the case back to state court, noting that the motor carrier could remove down the line if the evidence supported damages in excess of $75,000. Martinez v. Sarratt, 2020 WL 1892357

The same held true in the Southern District of New York where the court remanded the case after removal by the trucking company. The court concluded that the defendant had failed to establish that damages were in excess of the jurisdictional requirement when there was no specific allegation in the complaint. Barrett v. TP Trucking, 2020 U.S. Dist. LEXIS 65197

When the jury went outside the admitted evidence to calculate the damages the Court of Appeals in Iowa granted a new trial on damages. The court held that the viewed documents appeared to have provided a calculation that fell within the range of damages provided by one expert but conflicted with the damages calculated by the other expert. Although the jury could have reached the same verdict without consulting outside evidence, there is a reasonable probability that the documents influenced its verdict so back it went. Randall v. Ary, 2020 WL 1548492

The defendant was able to have the judge disqualified from its case in the Court of Appeals in Florida. The action arose from a fatal truck accident in which the truck driver was operating a hands free cell phone at the time.The trial judge’s multiple comments denigrating the carrier’s position regarding its cell phone policy created a fear in a reasonable person that the defendant would not receive a fair trial. Bias was found to exist. Publix Supermarkets, Inc. v. Monica, 2020 Fla. App. LEXIS 4918

An Interesting defense tactic was successful in the Northern District of Indiana. The defendant moved for a protective order precluding the plaintiff from questioning the truck driver by posing “Reptile Theory”, i.e. questions about the existence and purpose of safety rules during depositions. The court granted the motion, holding that asking those questions of the driver exceeded the permissible scope of discovery. Estate of McNamara v. Navar , 2020 U.S. Dist. LEXIS 70813

A plaintiff was not permitted to simply allege negligent hiring against the trucking company without specifying the factual basis for such a claim. The Eastern District of Texas granted the motion for a more definite statement. Diaz v. Kettley Trucking, Inc. 2020 U.S. Dist. LEXIS 60218

An insurer was not precluded from seeking a declaratory judgment with respect to its duty to defend or indemnify its insured under a non trucking use endorsement on a commercial auto policy and the request for reimbursement of defense costs incurred. The Northern District in California held that the claims were not subject to res judicata or collateral estoppel because they were not litigated in a state court action involving the parties. The issue of coverage and indemnity had not been specifically addressed by the state court. Canal Insurance Co. v. A&R Express Trucking, 2020 WL 1904464

The Southern District in Illinois refused to dismiss a declaratory judgment action filed by an insurer seeking a determination on whether it provided coverage for a truck accident. The court rejected the injured parties request that the court exercise its discretion and dismiss the action, forcing it back to state court where the personal injury action was being litigated. The court concluded that permitting the coverage action to proceed would help the parties determine the availability of insurance in order to resolve the suit. Artisan and Truckers Casualty Co. v. Neron, 2020 WL 1938892

The U.S. Government was unsuccessful in its attempt to get summary judgment in a suit arising from a collision between the plaintiff and a postal truck. The Southern District in Indiana held that there were question of fact as to who moved into whose lane at the time of the accident, precluding an early resolution of the matter. Hogan v. United States of America, 2020 WL 1905553

A motor carrier was granted a writ of mandamus directing the trial court to dismiss a personal injury action on the grounds of forum non conveniens. The Court of Appeals in Texas held that when the factors set forth in the applicable state law., section 71.051(b) favor the conclusion that an action would be more properly held in a forum outside Texas, the statute requires the trial court to grant motions requesting that it decline to exercise its jurisdiction. In re Ceva Ground, 2020 WL 1429929

The 8th Circuit has disagreed with some other courts, concluding the Carmack Amendment does not preclude a claim for personal injuries. Shipper’s employee brought negligence action in state court against carriers, seeking to recover damages for personal injuries he allegedly sustained when improperly loaded stack of cardboard boxes fell out of trailer and struck him, causing him to fall to ground and fracture his shoulder. The court held that the action could proceed. Fergin v. Westrock, 2020 WL 1778817

Over in the Central District of California the court remanded a case back to state court after it was removed by a truck broker. The suit arose out of a serious bus accident in which the bus hit a tractor-trailer hauling a shipment which had been brokered by the removing defendant. The court held that the defense of preemption asserted by the broker did not give rise to a basis for removal as ICCTA did not provide for complete preemption. Campos v. Benny Whitehead Logistics, 2020 WL 1486107

The Eastern District of Pennsylvania dismissed claims for punitive damages against a truck driver and his employee for a rear end hit into another tractor trailer, concluding that there was no factual allegations which would support such a claim. General allegations that a trucking company should have known of driver issues was insufficient to support the claim. The court also granted the defendants’ motion for a more definitive statement when plaintiff made conclusory allegations without factual support on his other causes of action. Carson v. Tucker, 2020 WL 1953655

A driver and his company were unsuccessful in obtaining dismissal of claims for recklessness and punitive damages following an incident where the driver drove over another driver standing in a loading zone. The Middle District in Pennsylvania held that there were sufficient allegations to support both claims, further holding that the motor carrier could be vicariously liable for a punitive damages claim against the driver. Molina v. Timmons, 2020 WL 1637895

When the plaintiff simply alleges general violations of federal safety regulations a claim of negligence per se was dismissed in the Eastern District of Missouri. The court also precluded the plaintiff’s expert from addressing whether the motor carrier has allowed for a sufficient stopping distance when the expert had no facts to support such a conclusion. Collins-Myers v. Triangle Trucking, Inc. 202 WL 1445703

The Second Division Appellate Court in Illinois upheld a grant of summary to an insurer on claims of breach of contract, unfair claims practices and consumer fraud following the defense of the motor carrier in a personal injury accident. . The fact that the insurer had an interest in creating favorable precedent that would be useful in other cases involving its insureds did not negate the fact that it was providing a full and vigorous defense . Good case to read to evaluate the steps taken in assessing defense strategy and keeping an insured advised along the way. Joseph T. Ryerson & Son, Inc. v. Travelers Indemnity Company of America, 2020 Il App (1st) 182491

Back and forth. Trucking company wins a defense verdict but then the court orders a new trial. On appeal the Second District in the Ohio Court of Appeals reversed and reinstated the jury verdict. The court held that the defendant’s use of demonstrative exhibits, including computer-generated images were not sufficiently prejudicial to warrant granting a new trial, because their exclusion would not have changed the result below. Shaneyfelt v. Byram, 2020 WL 1814854

The District Court in Illinois permitted a suit to proceed against a third party driver management company for injuries sustained by the plaintiffs following a truck accident. The company, which had already appeared in the suit to protect its workers compensation lien was, accordingly to the plaintiffs, possibly responsible for the actions of the driver. Despite the late effort to assert the claim, the court held that the defendant would not be prejudiced and discovery on the issue should proceed. Ramos v. Simon’s Trucking, 2020 WL1644026.

The Eastern District in Michigan denied a motor carrier’s request for summary judgment when the plaintiff ran into the back of the truck. The court held that there were arguments to be made on both sides as to who caused the loss and a rear-end hit was only a rebuttable presumption that the plaintiff was negligent. Of note – the court told both parties they could lose and sent the case off to a settlement conference. Fields v. Ashford, 2020 WL 1703876

The Court of Appeals in Texas gave limited relief to a motor carrier following a 2.8 million dollar verdict. The court rejected all of the defendants arguments, other than acknowledging that some of the damages, for a lumbar surgery, were high. Munoz v. Castillo 2020 WL 1856476. Plaintiff subsequently accepted the minimal reduction, keeping a verdict of more than 2 million in place. 2020 WL 1887807

Cargo

Whether claims are timely continues to be litigated. The Northern District in Texas denied summary judgment to a motor carrier who claimed that a proper claim had not been filed. The court held that the list provided by the plaintiff advised the carrier of a specific or determinable claim even though it only listed the original purchase cost of the allegedly damages items. It was enough to meet the claim requirement of a determinable or specific amount. Seinfeld v. Allied Van Lines, Inc. 2020 WL 1493662

An insurer was successful in obtaining a default judgment against a motor carrier in the Southern District of New York. The insurer, who was subrogated to the rights of another trucking company, was also given prejudgment interest. Federal Insurance Co. v. CLE Transportation, 2020 WL 1503455

It is not very often that we see decisions arising from specified peril policies. The Southern District in Mississippi refused judgment to the insurer who contended that the policy did not cover theft as a peril. The court, while dismissing the claim for punitive damages, held there were questions of fact as to whether the policy explicitly limited coverage to the designated perils when there were additional exclusions. Haymore v. Shelter General Ins. Co., 2020 WL 1536615

The Northern District in Ohio rejected a carrier’s request to dismiss an action against it for damage to cargo which it packed and transported to the pier. Upon delivery in Austria the damage was discovered by the plaintiff. The court held that simply because the cause of action was labeled breach of contract did not make it a state law claim, concluding that it was properly alleged as a claim under the Carmack Amendment. The court also held that the bill of lading did not have to be attached to the complaint for it to be a valid breach of contract action.. Emco Corp. v. Miller, 2020 WL 1915254

Removal of a Carmack case is both procedural and substantive. The District Court in South Carolina refused to remand a clear Carmack case back to state court when plaintiff raised questions on timeliness and consent of all parties. The court held that plaintiff’s early attempts at service did not start the clock running and technical failures on the part of the defendant to spell out consent of the co-defendants was not enough to send it back! Smith v. Kelso, 2020 WL 1887723

A truck broker was sued by a wrecker yard for the costs associated with the clean-up and storage of a shipment of paper. The District Court of Massachusetts held that the claims did not concern the transportation of property. The claim sought to recover for storage fees that accrued after the accident, when the shipment was no longer in transit to its final destination. Because these claims involve conduct that occurred “subsequent to ‘transportation,’ and not the transportation of property itself, there was no FAAAA preemption. The suit was allowed to proceed. Ted’s of Fayville v. Amekousse, 2020 WL 1694993

Follow the trail. Plaintiff hires one entity to transport freight. That defendant assigns the obligations to another, who then assigns it to a third company. The driver hit the bridge. Who is responsible? The Northern District of Ohio held that the plaintiff could pursue the middle company, on the theory that it was a third party beneficiary of the contract entered into to transport the freight. The motion to dismiss was denied. Noble Environmental, Inc. v. National Freight Logistics, Inc. 2020 WL 1451965

A claim for equitable indemnity would not stand against a truck broker in the Northern District of California. The claim arose from the failure to insure proper pre-cooling and transport of a shipment of pharma The court held that the broker was not a joint tortfeasor with the shipper and therefore the claim would not stand. Underwriters at Lloyds v. Abaxis, 2020 WL 1677341

Physical Damage

When is a vehicle acquired to start the time running for adding after acquired vehicles to the policy? That was the issue considered by the Court of Appeals in Oregon. The Court reversed the judgment in favor of the insurer, sending the case back for a determination of when the insured was entitled to possession of the vehicle. It was interesting to note that the court rejected the insurer’s claim that there was a relationship between the insured and the prior owner which it argued showed that it was an earlier acquired vehicle. Not so said the court, looking to the policy definition of insured. The close connection between the seller and the insured did not impact the time of acquisition. Ram Express, LLC v. Progressive Commercial Casualty Co., 303 Or. App. 211

Workers Compensation

The Appellate Division in New Jersey upheld a verdict rendered in favor of an insurer seeking additional premium. The audit revealed that a policyholder, a freight forwarder, had withheld material information about its operations and thereby underpaid its workers’ compensation premiums. After a non-jury trial, the Law Division judge ruled that the policyholder had violated the workers’ compensation fraud statute, N.J.S.A. 34:15-57.4. The court held that the freight forwarder was required to report and pay premium for the motor carriers who transported the consolidated freight. Fournier Trucking v. New Jersey Manufacturers Insurance Co., 2020 WL 1802840.

Thanks for joining us,

Jean & Chad

© 2020 Central Analysis Bureau