Happy New Year!!!

By the time this gets sent out, the new year will almost be upon us. We hope your holidays were bright and that you’re looking forward to a great new year in 2022. We enjoy working with all of our customers and users. As we look towards 2022 and the opportunities of the new year. At CAB, we’re again committing ourselves to provide industry-leading resources and second-to-none customer service.

No matter what 2022 brings, we’re excited and proud to be a part of your organization’s continued success. From our team to your team, we wish you a Happy New Year!!!!

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CAB’s Tips & Tricks: Filter By Date Feature Added to BASICs Calculator When using the Inspections Tab in the BASICs Calculator, users are often interested in being able to filter by date within the 24-month period. That enhancement was released within the last month. 

Now users can pinpoint a timeframe overall or within a specific BASICs category to filter the inspection as a whole or individual violation. The filter automatically defaults to the full date range for the inspections contained in the current scores, but users can narrow the results with either the slider bar or the calendar feature.

This allows users to, among other things, filter specific inspections and/or violations to better understand how a DataQ can affect a motor carrier’s CAB-BASIC performance. 

We appreciate folks letting us know how you use the system and how we can enhance that experience. 

You are encouraged to reach out via phone, email or via the “Contact Us” button in the My Account area of the menu.

THIS MONTH WE REPORT:New York passes law to allow under-21 intrastate truck drivers: New York Gov. Kathy Hochul on Nov. 15 signed a bill into law that will allow 18-20-year-olds to obtain commercial driver’s licenses in the state, with certain requirements, including completing a special training program as well as a minimum number of hours of supervised driving. To review the complete article, click here.

New HOS regs a boon for already-hot short haul segment: Four changes to the Federal Motor Carriers Safety Administration’s hours of service regulations made last fall have provided fleets and their drivers with additional flexibility, which analysts say will yield dividends to the already fast-growing segment – both in more time to work each day and the ability to potentially skip ELDs. Please click here to review the complete article.

Which states are actually doing a good job with highways and bridges: The Reason Foundation, a libertarian think tank, recently released its 26th Annual Highway Report, which ranks the condition of roads and bridges and how much money the states spend to achieve that status. Click here to review the complete article.

Administration unveils plan for helping fleets with driver recruitment, retention: President Joe Biden last month announced the Biden-Harris Trucking Action Plan. Senior Administration officials said the aim of the 90-day blitz is “to strengthen the trucking workforce … to improve recruiting, retention and productivity.”  For more information on this topic, click here.

CVSA Adopts North American Fatigue Management Program: The Commercial Vehicle Safety Alliance is now home to the North American Fatigue Management Program (NAFMP), a comprehensive educational and training program aimed at preventing fatigue-related risks and crashes and cultivating a corporate safety culture that proactively works to eliminate driver fatigue. For additional specifics on this program, click here.

New Research from ATRI Quantifies Truck Driver Motivations and Levels of Satisfaction: The American Transportation Research Institute released the results of its analysis examining the differing motivators for why truck drivers choose to be a Company Driver or an Owner-Operator/Independent Contractor (OO/IC). 

When presented with identical factors that motivated their decision to be a Company Driver or OO/IC, Company Drivers indicated their top three motivators were Job Security/Stability, Income, and Healthcare/Retirement Savings.  Among OO/IC, the top three motivating factors were Independence/Ability to Set Hours, Schedule/Flexibility, and Choice of Routes/Length of Haul.  To access the complete ATRI report, click here.

Acting FMCSA boss stepping down: Meera Joshi, acting administrator of the Federal Motor Carrier Safety Administration (FMCSA), is leaving the post to accept a position as Deputy Mayor of Operations for New York City. Click here to review the full article.

Commercial Auto

Do you have to actually be transporting property in interstate commerce for the MCS-90 endorsement to be triggered? The Northern District in Indiana answered that question with a “no”. The court agreed that a “totality of circumstances” analysis was the proper way to address this issue, concluding that “(i)t seems very logical to conclude that even empty trucks, en route to pick up loads to continue their trip, are engaged in interstate commerce”. The court also held that the MCS-90 endorsement covered interest and costs associated with the judgment.  Prime Insurance Co. v. Wright, 2021 WL 5587876

Following a trolley bus accident with multiple injuries the Superior Court of Delaware concluded that the insurer for the bus was liable for a consent judgment as there was an MCS-90B on the policy. The vehicle was not scheduled on the policy. The court concluded that the filing applied to the insureds named under the policy, not just the one named in the form.  The court also agreed that the insurer could not object to a consent judgment which was not entered into fraudulently when it elected not to defend the defendants.  Philadelphia Indemnity Insurance Co. v. Bogel, 2021 WL 5764538

Under 5th Circuit rules all defendants must consent, in writing, to removal of an action.  The Southern District in Texas remanded a truck accident case when the removing defendant failed to obtain the written consent of the other trucking company and driver, who filed a late consent.  Bellamy v. J.B. Hunt Transport, Inc., 2021 WL 5865705

The Southern District in Mississippi denied a motor carrier’s request for reconsideration concluding that the plaintiff was entitled to pursue recovery for a reassigned right to payment.  The court held that the plaintiff, during a timely-initiated negligence action, can pursue a re-assigned right to payment of damages arising from the negligence claim even if the claim was time barred when reassigned.  Taylor v. Wal-Mart Transportation, 2021 WL 5932954

Summary judgment was not appropriate for the plaintiff or the trucking defendant in the Middle District of Alabama.  Although the truck driver blocked all lanes of traffic while being  stopped sideways across the road, the court held that the plaintiff had not yet proven all of the elements necessary for judgment on claims on wantonness.  Stafford v. Sunland Distribution of Florida, Inc. 2021 WL 5909843

Insurers who are arguing over the applicability of coverage under their respective commercial auto policies cannot use the MCS-90 against each other. The Southern District in Mississippi, in a declaratory judgment action brought by one insurer, concluded that the second insurer’s policy did not cover the vehicle and that the plaintiff could not use the MCS-90 endorsement to keep the second insurer in the case. However, that would not preclude an action against the second insurer by the injured party once the pre-conditions for a claim under the endorsement were met.  Wesco Insurance Co. v. Rich, 2021 WL 5750932

While granting a default judgment to an injured plaintiff in the claim for damages stemming from a truck accident, the Middle District in Pennsylvania concluded that the plaintiff properly asserted claims for vicarious liability and for negligent hiring and training. The question of punitive damages remained opened pending a hearing on damages.  Karp v. Jenkins, 2021 WL  5631750

The Western District in Oklahoma held that neither motor carrier was entitled to summary judgment in the claims arising from a two truck accident.  The plaintiff had not yet established all of the necessary elements for a negligence claim.  The defendant was also not entitled to judgment on the claim for property damages simply because the carrier did not own the vehicle, as it was leased to the plaintiff.  CTC, Inc. v Schneider National, Inc. 2021 WL 5815833

A trucking company was unable to argue that the plaintiff bore contributory fault for a fatality when plaintiff failed to place his son in a car seat before the truck accident.  The Western District of Arkansas concluded that Arkansas law precluded the motor carrier from using that as an affirmative defense.  Edwards v. Thomas, 2021 WL 5762094

When an employer concedes liability for the actions of the driver, the claims for negligent hiring, training, supervision and retention were dismissed by the court in the Western District of Oklahoma.  Negligence per se claims were also dismissed as they were based upon violations of the FMCSA safety regulations and the CDL regulations.  Plaintiff was permitted to amend the complaint to allege claims for negligent entrustment. Nichols v. Gipson, 2021 WL 5762800

The Court of Appeals in Kansas upheld a jury verdict apportioning liability between the two trucks for a vehicular accident. The court agreed that the district court was correct in ruling that the testimony did not show that the defendant truck driver was passing on the right and the shadow marks on the road were consistent with his merely trying to avoid something in front of him.  Robles v. CW Welding, 2021 WL 5758251

A trucking company was granted summary judgment on claims of wantonness and negligent and wanton hiring, training, supervision, and retention claims for injuries to the plaintiff when she was struck by the defendant’s tractor trailer while she was walking on the side of the highway. The Middle District of Alabama held, however, that there were questions of negligence and contributory negligence.    Brannon v. Swift Transportation Co. of Arizona, 2021 WL 5989145

The trial court in New York agreed that the evidence showed that the vehicle in which plaintiff was a passenger jumped in front of the defendant’s tractor trailer causing the accident which injured plaintiff.  The complaint was dismissed.  Ezzi v. Domino’s Pizza,  2021 WL 6058856

When the plaintiff was working on top of a scissor lift when a tractor trailer struck the scissor lift, causing injuries, the Southern District in Texas agreed that claims for punitive and exemplary damages could proceed against the trucking company. Plaintiff was able to allege that the truck driver saw the plaintiff  on top of the scissor lift before he entered his tractor-trailer, set the tractor-trailer in motion  and only moved approximately two to five feet before hitting the scissor lift.  Inthavong v. Roosa, 2021 WL 5999279

While the motor carrier’s various excuses for failing to comply with discovery was enough to thwart plaintiff’s demand for extreme sanctions, the Eastern District of Tennessee agreed that the motor carrier should pay the reasonable costs and expenses incurred by the plaintiff in trying to get responses.  Carroll v Eagle Tranz, Inc. 2021 WL 5985140

The District Court in Maryland agreed with the motor bus that there was no evidence that the bus caused or contributed to a collision with an unidentified tractor trailer. Plaintiff, who claimed injuries as a result of the collision was unable to support a claim against the defendant.  Riddick v Washington Metropolitan Area Transit Authority, 2021 WL 5999271

When plaintiff decedent was injured when he struck a tractor trailer which was attempting to reverse direction on the highway by executing a three-point turnaround, and was in the lane of oncoming traffic, his estate was permitted to pursue a claim of negligent training against the trucking company.  The claims for negligent hiring, retention and supervision were not supported by the facts and therefore the trucking company was given summary judgment on those claims.  Workman v. Kretzer, 2021 WL 60498482021 WL 5894626

The fact that a driver signed a lease agreement with a motor carrier which applied Missouri law and was entered into Missouri was not enough to confer jurisdiction over the truck driver for injuries arising from a California accident.  The Missouri Court of Appeals concluded that the plaintiff could not meet the requirements of the Missouri Long Arm Jurisdiction statute and the action was dismissed against the driver. Babb v. Bartlett 2021 WL 5894626

The Superior Court in Pennsylvania held that the plaintiff was entitled to have the case decided in Pennsylvania even when the plaintiff lived in Illinois, the accident occurred in Indiana where the driver lived, and all medical treatment was in Illinois and Indiana. The fact that the defendant was incorporated in Pennsylvania decisions on hiring, training and supervision of the truck driver may have been made in Pennsylvania was enough to allow the court to reject the transfer request.  Parrent v. Penske Logistics, LLC., 2021 WL 6110308

Worker’s Compensation

When the employer failed to demonstrate by credible, clear, and convincing evidence that the insurer should be equitably estopped from canceling the worker’s compensation policy based on the nonpayment of premiums prior to the claimant’s accident and the resultant compensable work-related injuries, the Commonwealth Court in Pennsylvania agreed the Board did not err in affirming the decision that the employer had no coverage. The employer was liable for the award given to the employee. Dalton’s Towing & Recovery v. Workers’ Compensation Appeal Board, 2-21 WL 5754385

A worker’s compensation insurer was entitled to a ruling that Mississippi law applied to its subrogation lien, even when the accident causing the injuries was subject to Arkansas law.. The doctrine of dépeçage, which is a conflict of laws principle that holds it is permissible and often appropriate to apply the laws of different states to different issues in the same case, was applicable.  Bridges v BlueStar Services, LLC, 2021 WL 5829500

If an employee settles his worker’s compensation claim does his admission as to the extent of his injuries preclude him from asserting additional damages in his suit against the trucking company defendant?.  The Supreme Court in Illinois, with amicus briefs filed by many interested parties, declined to answer the question, determining that procedural issues  required that the case be dismissed.  The record revealed that subsequent to the lower court’s improper ruling the plaintiff dismissed his action in the circuit court. After the dismissal, the plaintiff failed to refile the action within one year pursuant to section 13-217 of the Code of Civil Procedure or within the statute of limitations period.  The case was therefore dismissed and the appellate’s court decision had to be vacated and the case remanded for dismissal.  Armstead v. National Freight, Inc. 2021 IL 126730

Cargo

The District Court in Connecticut held that plaintiff’s claims against an interstate motor carrier were preempted by the Carmack Amendment and that remand of the case to state court was not proper,  Plaintiff’s claims that goods were stolen before they left the house, and therefore subject to state law, did not sway the court.  Shields v. United Van Lines, 2021 WL 5832984

The District Court in Idaho  refused to permit a plaintiff to voluntarily dismiss an action without prejudice when the court had already dismissed the claims with a right to re-pled. The court also refused to grant a default judgment against one of the parties when claims were pending against the other potentially culpable entities.  Gargoyle Granite & Marble v.. Opustone, LLC. 2021 WL 5999133

We hope your Thanksgiving was great, and on to the holidays and the New Year!

Looking back on November, our first Town Hall webinar was a big success. We had hundreds of CAB users attend the event live, and many others reviewed the recorded webinar. We had several user questions submitted prior to the event and many more asked live while the event was underway. 

We appreciate those that provided questions for the CAB Team to answer. We didn’t get to all of the questions, but we were able to reach out to individual users as well. 

We look forward to doing a similar format in the future. As always, please feel free to provide feedback on our topics and suggest new ones as well.

As we head into December, Jean, Shuie and the whole CAB team want to wish each of you a wonderful, safe, and healthy holiday season.

CAB Live Training Sessions

Please note, due to how the days fall this December, we will be only having one live webinar (see below). 

Tuesday, December 14th @ 12p EST: CAB for Logistics. Learn about the plethora of tools and resources available for Logistics and Freight Brokering companies, plus how to use them to identify new opportunities such as motor carriers and shippers. You’ll also learn how to use CAB List to monitor the fleets in your stable to better understand operations, cargo hauled lanes, and more. Click here to register.

Don’t forget, you can explore all of our previously recorded live webinar sessions on our website!

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CAB’s Tips & Tricks: Detailed breakdown of Crashes, Inspections and Time Spent Inspected

Here’s how to use our new hover and pop-up detail in the Inspections/Accidents Tab, including Unit Summary section under Crashes, Inspections and Time Spent Inspected. When you hover over each of the sections you will view this additional breakdown information detailed below:

• Crashes: Fatality vs. Injury 
  • We provide the number of fatalities and injury crashes. The count of crashes left over would be the number of tow-away inspections. There are 3 types of crashes with the FMCSA: fatalities, injuries, and tow-aways. With the example below, this motor carrier has zero fatalities, 1 injury crash, and 4 tow-away crashes.

• Inspections: Fixed vs. Roadside.
  • Fixed inspections are inspections that take place at a fixed location like a scale house or Safety Weight Enforcement Facility (SWEF). A roadside inspection is normally performed by a mobile unit like a state patrol squad car. In the example below, the motor carrier has had 91 total inspections in the prior 12 months, 49 Fixed and 42 Roadside.

• Time Spent Inspected: Average time per inspection.
  • This detail provides the average amount of time per inspection for each of the 91 inspections. As indicated, the total inspection time is 1 Day 20 Hours 36 Minutes. Please note, the time provided is the amount of time spent and then recorded by the inspector conducting the inspection. It does not account for any additional downtime for that driver and/or vehicle such as waiting for an Out of Service vehicle defect to be repaired or a driver Hours of Service violation (10, 11, 14-hour, 36-hour reset, or the like) to be observed.

This new feature is provided to help CAB users better understand the underlying information in each of the above sections quickly. Our ultimate goal is to work with our users to “Make Better Decisions”. If you have any questions about the above enhancement, please feel free to reach out to the CAB business team and we will be happy to help.

THIS MONTH WE REPORT:

Cyber threats in trucking have skyrocketed since the onset of pandemic: A new report from cybersecurity company Coro predicts escalating cyber attacks on transportation and trucking companies that are supporting an already duressed supply chain this holiday season. For the complete article from CCJ, click here.

New ATRI Study Quantifies the Impact of Small Verdicts and Settlements on the Trucking Industry: The American Transportation Research Institute (ATRI) released a follow-up analysis to its 2020 hallmark report on The Impact of Nuclear Verdicts on the Trucking Industry, determining that a different plaintiff litigation model is impacting the industry: small cases. The research used a new ATRI dataset of more than 600 cases resulting in either a settlement or verdict award of less than $1 million.

 This study showed that settlement payments are approximately 37.7 percent larger than verdict awards, and 393 percent more likely to occur in incidents involving a fatality. Additionally, incidents involving a severe injury were 217 percent more likely to settle and 199 percent more likely to result in payments to plaintiffs over $600,000. To request the full report from ATRI, click here.

Rear impact guard now part of annual truck inspection: Rear impact guards have been added to the checklist of annual truck inspections according to the Federal Motor Carrier Safety Administration, following from government agencies and a truck safety advocate whose two children were killed in a truck accident eight years ago. Rear impact guard inspections will begin Dec. 9. Trucks that fail to pass will not be placed out of service (OOS), but each violation could result in a max fine of $15,876 for carriers and $3,969 for drivers. For the complete article from CCJ, click here.

FMCSA: Fatal large truck crashes increased in 2019: The number of fatal accidents involving large trucks (defined as vehicles with a gross vehicle weight rating over 10,000 pounds) increased by 1% from 2018 to 2019, according to the Federal Motor Carrier Safety Administration’s recently updated Large Truck and Bus Crash Facts. While the actual number of fatal crashes rose, the number of fatalities in crashes involving large trucks dropped from 5,006 to 5,005 from 2018 to 2019. Click here to review additional information on this topic.

DRIVE Safe Act becomes law: What you need to know: The DRIVE Safe Act, part of the $1.2 trillion infrastructure bill President Joe Biden signed into law on Monday, has created a pathway for drivers under 21 years old to enter interstate trucking just as it’s become more vital, and more profitable, than ever before. For the complete article on this important topic, click here.

Number of people 75 and older in the labor force is expected to grow 96.5 percent by 2030: According to the Bureau of Labor Statistics, the labor force is expected to increase by 8.9 million, or 5.5 percent, from 2020 to 2030, including a 96.5% increase of people aged 75 years or older within the labor force. For more information, click here.  

Livestock haulers get additional HOS exemption in infrastructure law: The law already exempted livestock haulers from HOS rules while operating within a 150 air-mile radius (roughly 172 land miles or three hours’ driving) from the source of the shipment. Now, livestock and insect haulers will only have to abide by hours limitations if they exit the 150 air-mile radius of both the pickup location and the destination. 

This move expands livestock and insect haulers’ potential single-trip hours-exempt length to around six hours one-way. Additionally, such a hauler would only be required to use an ELD if he or she had logbook-necessary trips for more than 8 days in any rolling 30-day period. Click here to review the additional detail in the Overdrive article.

CargoNet warns of increased cargo theft activity around Thanksgiving: Cargo theft recording firm CargoNet is warning truck drivers and fleets of an enhanced risk of cargo theft around the upcoming Thanksgiving holiday period. Theft reports were most common in states that have cargo theft problems throughout the year, including California, Texas, Illinois, Georgia and Florida. Cargo thieves targeted shipments of televisions, major appliances, mixed electronics, and alcoholic beverages the most in this analysis period. For more information on this topic, click here.

ATRI’s Latest Operational Costs Report Documents the Scale of COVID-19 Impacts on Trucking: The American Transportation Research Institute has released the findings of its 2021 update to An Analysis of the Operational Costs of Trucking. The new “Ops Costs” research is based on detailed 2020 financial data provided directly by motor carriers of all sectors and fleet sizes. 

The various line-item cost centers clearly document the numerous impacts that the COVID-19 pandemic had on trucking and the economy in general. The 2021 Ops Costs report documents the effect that faster truck speeds, due to low overall traffic levels, had on multiple line-items, as well as the sector and commodity volatility that occurred as consumers were forced to dramatically change spending habits. 

In addition to faster truck speeds, COVID-19 impacts were considerable: 

•dead-head miles increased to 20.6 percent

•annual operating miles decreased to 89,358 miles per truck

•fuel costs declined by nearly 20 percent to 30.8 cents per mile

Findings independent of COVID-19 impacts include:

• insurance costs rose more than 18 percent to 8.7 cents per mile – the highest in the Ops Costs report history

• while truck driver wages increased from 2019 to 2020, benefits costs per mile decreased

• overall truck driver compensation was 73.7 cents per mile

• safety and retention bonuses increased by 10.5 percent and 14.2 percent respectively

• starting bonuses dropped by 10 percent 

Overall, the average marginal cost per mile incurred by motor carriers in 2020 decreased 5 cents per mile to $1.64. When the per-mile costs are converted to hourly costs, the report found that total hourly costs dropped slightly to $66.87. To obtain the full report, click here.

CARGO

The Northern District of Ohio agreed with a truck broker that it was entitled to a default judgment on its claim against a motor carrier for a cargo loss. Under the terms of the broker carrier contract the motor carrier agreed to indemnify the broker if it paid claims. The court agreed that the Carmack Amendment applied and that the broker had made out a prima facie case for recovery. GlobalTranz Enterprises v. State to State Freight, LLC., 2021 WL 4990815

A household goods carrier was entitled to dismissal of a state law claim brought under the Unfair Claims Practices Act as the claim was preempted by the Carmack Amendment. The carrier was not, however, entitled to dismissal of the claim for attorney’s fees as there was a potential for that to be a proper claim under the federal regulations governing household goods carriers. Fields v. Allied Van Lines, Inc., 2021 WL 5181027

As the plaintiff failed to properly allege whether CH Robinson was acting as a motor carrier, or a freight forwarder, the District Court in Idaho dismissed the complaint, allowing the plaintiff to re-pled a proper complaint if the facts existed to support such a claim. As plaintiff was contending that CH Robinson was a freight forwarder or carrier, the court dismissed any negligence claim as preempted. Interesting read and a good explanation of Carmack venue provisions if you are interested. Gargoyle Granite & Marble, Inc. v. Opustone, LLC., 2021 WL 5451497

The District Court in Delaware granted a default judgment to a household goods plaintiff this month. The court held that the defendant’s invoking the Carmack Amendment without identifying the statute did not establish a meritorious defense that the state law claims were preempted. The court also held that the just retained counsel’s request for an extension of time to answer only 11 days after the answer was due was insufficient when it did not explain the 11 day delay. That was a tough one. Pay attention to dates. Taylor v. American Van Lines, 2021 WL 5415307

Wow, another Carmack trial reported this month. So rare. The District Court in Minnesota considered liability issues, and the application of a limitation of liability. Unfortunately for the motor carrier it failed to meet its burden of providing an act of the shipper as a defense to liability for damage to a printer. However, the court ultimately agreed that the motor carrier’s liability was substantially limited under its broker-carrier agreement, noting that it would have held the broker fully liable for failing to address the limitation of liability if the broker were still part of the suit! Dubow Textile, Inc. v. Western Specialized, Inc. 2021 WL 5505447

AUTO
When a truck driver stopped his vehicle on the side of the road, blocking the view for drivers entering an intersection, the Court of Appeals in Kentucky held that there was a question of fact as to whether that truck driver could be liable when a passenger vehicle was struck when it entered the intersection without a clear view. Since reasonable minds could differ as to whether the tractor trailer being parked on the shoulder of the highway was a substantial factor in causing this accident, granting summary judgment on this issue was improper. Crabtree v. Baldwin, 2021 WL 5264339

When a bus was out of service for more than a year and injured a maintenance worker during repairs, neither the general liability or the auto liability policy of the bus company were triggered. The bus was not listed on the auto policy. The Eastern District of Wisconsin held that the MCS-90B was inapplicable because the bus was not being used in interstate commerce at the time of the event. The Form F Endorsement was also inapplicable because the repair of the bus was not a negligent operation of the bus. Lancer Ins Co. v. Personalized Coaches, Inc., 2021 WL 5326569

The lessor of a vehicle was granted summary judgment in a suit in which the truck driver sought damages for injuries suffered while operating the vehicle. The Eastern District in Arkansas held that the driver had failed to create a question of fact as to whether the lessor was aware of any defect in the vehicle when it was released to the motor carrier. Lacy v. Ryder Truck Rental, Inc., 2021 WL 5282759

The fact that a plaintiff did not specifically allege the amount of damages until later in the suit was not enough for a trucker to argue that removal was proper when it filed a late notice of removal. The Southern District of New York held that the trucker was given ample support for the severe injuries, including 1,000 pages of medical records, months before the removal. Too late and so back the case went to state court. Pizarro v. Langer Transportation Corporation, 2021 WL 5326433

Broker liability is again an issue. This month the Northern District in Illinois agreed that a truck broker bore no liability for a truck accident. While there was some support that the broker had a level of control over the shipment, the court held that the level of control was insufficient to to support vicarious liability for the actions of the truck driver. Summary judgment was granted to the broker. Ye v. Global Sunrise, Inc., 2021 WL 5083753

The Eastern District in Louisiana refused to grant plaintiff’s request for a negative inference that a truck driver was intoxicated at the time of an accident when there was no bad faith on the part of the defendant in not having a alcohol test completed. The plaintiffs could not show that the results of a drug or alcohol test ever existed, let alone that they were destroyed. Nor was there any evidence that the driver was ever asked to submit to a drug test. The fact that the policies of the trucking company and the DOT required the test was not enough to show that it was anything more than a negligent failure to have the test done. Collins v. Benton, 2021 WL 5283974

The plaintiff withstood a motion to dismiss and was permitted to pursue claims for punitive damages against a motor carrier and a maintenance company for injuries suffered when the recently worked on tires came off the truck and struck the plaintiff’s vehicle. Plaintiff had sufficiently alleged facts to support claims of gross negligence on all parties following the repairs. Off to discovery it goes. WIlliams v. Korn, 2021 WL 5233327

The Superior Court of Pennsylvania agreed with an insurer and its insured, an equipment lessor, that its layers of excess insurance provided no coverage to the trucking company lessee. The excess policies were unambiguously not applicable when the lease required coverage only on a primary level for a million dollars. Old Republic Insurance Co. v. Pocono Motor Freight, Inc., 2021 WL 5232422

Lucky for the trucking company, the Court of Appeals in Georgia agreed that the trial court abused its discretion in imposing harsh sanctions on the trucker for failing to maintain data from the GPS system following an accident. The court agreed that there were other ways for the plaintiff to get the information, which was not destroyed in bad faith. An adverse inference that the driver was speeding and routinely did so with the knowledge of the motor carrier was too harsh a penalty. Cowan Systems v. Collier, 2021 WL 5114936

Louisiana does seem to be a venue with numerous reported decisions addressing potential fraud in truck accidents. This month the Court of Appeals in Louisiana denied a motor carrier’s request to subpoena cell phone records from a third party when the defendant believed that the evidence would show that this was a staged accident. The court held that while there was evidence of fraud in the case, the request for the records of the third party was based upon speculation and conjecture. Hendricks v. Wells Fargo Insurance, 2021 WL 4987962

A motor carrier’s efforts to seek dismissal of a punitive damages claim in a suit seeking damages for a fatal accident failed in the Eastern District of Missouri. The motor carrier argued that Missouri law precluded a claim for punitive damages without leave of court. The court held that the Missouri statute was a procedural requirement inapplicable to a federal pleading. The claim could continue. Gaydos v. Gully Transportation, 2021 WL 4963523. In a related decision the court held that a plaintiff could assert alternative theories of liability against the trucking company, who already conceded vicarious liability, when the trucking company could be liable for punitive damages. The claims for negligent hiring and/or retention, negligent entrustment, negligent training, and negligent supervision were permitted to proceed, 2021 WL 52998679

Pay attention to the court deadlines. A trucking company defendant in the Eastern District of Texas waited too long to seek dismissal of claims for gross negligence, which it claimed were unsupported by the evidence. As the defendant waited until the month before trial the court denied the request, allowing the claim for gross negligence to proceed to trial. Sanders v. Sky Transport, 2021 WL 5086064. In a related decision the court agreed with the defendant that most of the police report should be deemed inadmissible, including those portions based on the statements of others, referencing the parties’ insurance coverage, and mentioning the driver’s citation, which was later dismissed. 2021 WL 5088887

The Court of Appeals in Louisiana upheld a trial verdict of $2,508,853 against a trucker and its insurer. The defendants conceded liability for the loss. However as the court has granted the plaintiff’s motion to strike the defendant’s medical experts, there was little opportunity to impact the testimony on damages proffered on behalf of the plaintiff. It is important to read this case as it also addressed the joint defense offered by the insurer on behalf of itself and the motor carrier and driver when there were coverage defenses without reservation. The court concluded that the coverage defenses were waived. The court left open whether the insurer would be liable for more than its policy limit of $1,000,000 based upon its handling of the claim. Jeffries v. Prime Insurance Co., 2021 WL 5102258

The 5th Circuit Court of Appeals addressed the applicability of different excess policies to a loss, concluding that the district court was correct in its assumption on the priority of coverage. While both policies provided coverage for liability “in excess” of a “retained limit.”, the policies differed in how they defined “retained limit.”, leaving one insurer first in line. While questions of fact remained on the actual allocation, the critical issues were resolved. Great American Insurance Co. v. Employers Mutual Casualty Company, 2021 WL 5356174

When a truck driver moved to Pennsylvania in order to get his CDL license, with no evidence that he ultimately intended to reside there permanently, the court held that North Carolina, where he resided before, was truly his residence for a diversity assessment. The Eastern District of Pennsylvania did not send this back to the state court in Philadelphia, one of the judicial hellholes. Estate of Khalil v. Mursalov, 2021 WL 5356791

Everyone wants to get out of Philadelphia County. The Superior Court in Pennsylvania held that plaintiff failed to establish that the trial court abused its discretion in sustaining the motor carrier’s preliminary objections raising improper venue on the basis that none of them regularly conducted business in Philadelphia County. The court agreed that the transfer should proceed. Dibble v. Page Transportation, 2021 WL 5408725

A police officer injured in a multi-truck crash sought to add in addition potentially non-diverse trucking companies who were part of the accident which injured the plaintiff. While the court denied the motion, it was without prejudice to allow the plaintiff to refile alleging the proper citizenship of each defendant. That fact that the amendment might defeat diversity was not enough to convince the court that it should not allow the amendment in the suit which was previously properly removed. Wilson-Abrams v. Magezi, 2021 WL 4962100

After completion of discovery the District Court in New Mexico agreed that a plaintiff could have its claims for direct and vicarious liability reinstated against the shipper and the broker following a truck accident. Once again the data caused the change, as the court cited, in great detail every driver violation and the various data events impacting the motor carrier. It was enough to allow the claims for negligent hiring. The court also rejected the preemption defense proffered by the broker. Dixon v Stone Truck Line, 2021 WL 5493076

Let’s talk about discovery. The Northern District of West Virginia held that a plaintiff was entitled to get all information from a motor carriers accident register for Defendant’s fleet of trucks from four months before the accident and two years after the accident. Post accident information could be relevant for a claim for punitive damages. Anderson v. FDF Energy Services, Inc. 2021 WL 5443187

When the plaintiff and the defendant trucker collided while merging in a construction zone the Western District of Pennsylvania held that there were questions of fact as to the liability of each party and summary judgment in favor of the plaintiff was inappropriate. The Court held that a reasonable jury could find that the plaintiff breached a duty of care and that his negligence was a cause of the accident. The Court further held that even if the truck driver was negligent —whether per se or otherwise—such negligence would not bar the jury from also finding that the plaintiff was negligent and that negligence was a cause of the accident. Surman v. Payne. 2021 WL 5449231

Worker’s Compensation
The Georgia Department of Transportation was permitted to intervene in an employee’s suit against a trucking company for injuries to an employee when his bucket was hit by the driver. The Middle District of Georgia agreed that the DOT was entitled to present its lien against any award after it made worker’s compensation payments. Bryan v. Swisher, 2021 WL 5405783

The same did not hold true in the Western District of Louisiana. While the employer and its insurer were entitled to assert a claim for reimbursement of worker’s compensation fees against the trucker who injured the plaintiff, the amount was below the diversity threshold and the diversity of the parties was not clear. The proposed complaint in intervention set forth an amount in controversy of less than $10,000, so the amount in controversy element (more than $75,000) was not satisfied. The motion and proposed complaint set forth some information about the citizenship intervenors, but did not provide the precise information needed to ensure complete diversity so the request was denied with the right to renew if they could address these concerts. Davis v. Southwest Sales, Inc., 2021 WL 5504732.