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Bits & Pieces

April 2021

CAB Bits & Pieces April 2021

Spring has sprung!

Will April showers bring May flowers? We can only hope! Welcome to May and the start of warmer weather. This is the season of graduations and summer planning. Did you know according to nationaltoday.com, the Month of May has 138 holidays? It starts with National Beer Pong Day on May 1st and ends with Memorial Day. Other highlights include Star Wars Day 5/4 (May the fourth be with you), National Clean your Room Day 5/10, and National Dance Like a Chicken Day 5/14. However, perhaps the most important holiday in May is Mother’s Day on May 9th.

We hope all the mothers out there have a wonderful month!

CAB Live Training Sessions

Just a quick reminder that last month’s sessions, MC Advantage and CAB for Agents & Brokers were both recorded and are available for viewing at your leisure. They are available at the link below. Additionally, our complete library of recorded webinars is available in the Tools menu under Webinars or by clicking here. If you have a new associate or someone who wants to learn more or needs a refresher, we encourage you to point them in the direction of our pre-recorded webinars.

This month we will present two new live training sessions:

Tuesday, May 11th @ 12p EST: Chad Krueger will present on Adding Motor Carriers to CAB List™. CAB List™ is a powerful management feature that allows individual users to monitor their book of business and prospects. Learn the 5+ ways to add a motor carrier to CAB List™ and how to set up alerts to be notified about changes to your customers and prospects that can be used to better understand a motor carrier’s risk and opportunity. Don’t miss out on this opportunity to learn about this powerful CAB feature. Click here to register.

Tuesday, May 18th @ 12p EST: Mike Sevret will present, CAB Advanced Training: Tips & Tricks. Learn about the various reports that are downloadable within the CAB ecosystem. Inspection details, shared vehicle reports, analysis central, schedules, SALEs leads and much more! This is a great session to get the most out of your CAB experience. Click here to register.

CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

We are looking forward to connecting with you during these sessions so don’t hesitate to ask questions!

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CAB’s Tips & Tricks: ISS-CAB Values and the Stop Light

We often get questions about the ISS-CAB Value and how it is determined. A motor carrier with one alert is listed as inspect/red, but a motor carrier with two alerts is optional/yellow.

In any case, we encourage you to hover over or click on the ‘*Why this score?’ link while in the CAB Report. By doing so that link will detail why the score is what it is.

I’ll be honest, I had those same questions before coming to CAB. Ultimately it has to do with which category the BASIC falls into. Either, BASIC best addressed roadside or BASIC NOT best addressed roadside. You can see the different categories on the right side below. The left below details scenarios that fall into the 3 categories. It is important to note, that a 100 CAB-ISS Value denotes a motor carrier that has been placed Out of Service.

In layman’s terms, Best addressed roadside are generally violations that can be identified while a truck is stopped while NOT best addressed roadside are violations that can only occur while the vehicle is in motion.

Unfortunately, we don’t have enough time or space to explain the specific numerical values, but generally, for Red/Inspect and Yellow/Pass, the more alerts in conjunction with higher BASIC Percentiles, the higher the ISS-CAB Value will be.

THIS MONTH WE REPORT:

Congress Again Eyes Liability Insurance Minimum Increase: A bill that would tie truck owners’ minimum liability insurance requirements to medical care inflation has been reintroduced in the U.S. House. Rep. Jesus “Chuy” Garcia (D-Illinois) first introduced the legislation, dubbed the “Improving National Safety by Updating the Required Amount of Insurance Needed by Commercial Motor Vehicles per Event (INSURANCE) Act” in 2019, but it never advanced past the House Transportation Committee. The original bill called for motor carriers’ minimum insurance levels to be raised from $750,000, based on medical-cost inflation. According to the language of the 2019 bill, the amount of $750,000, which was set as the insurance minimum in 1980, would have had the same buying power as $4.9 million in 2019, based on medical-cost inflation. The bill would also require the Department of Transportation to adjust the liability minimum every five years. The reintroduced bill can be read here.

Large Trucks are Involved in 1/3 of All Fatal Crashes Occurring in Work Zones: “Fatal crashes occurring in work zones are both tragic and absolutely preventable,” said FMCSA Deputy Administrator Meera Joshi. “I am especially concerned that large trucks continue to have a disproportionate involvement in fatal crashes occurring in work zones – 33 percent – when large trucks comprise roughly five percent of vehicular traffic. Don’t allow yourself to become distracted, slow down, obey the signs and the instructions of flaggers and be courteous and safe by giving every vehicle extra space. Highway workers equally depend on you for their safety.” Although Work Zone Awareness Week was April 26-30, awareness should be year-round. To read more about Work Zone Safety and for additional shareable resources, click here.

Biden taps Joshi to lead FMCSA: Meera Joshi, who has served as the Federal Motor Carrier Safety Administration’s (FMCSA) acting administrator since the Biden administration took office in January, is the president’s nominee to head up the agency that oversees the trucking industry. If confirmed by the Senate, Joshi will be the first person to hold the title of FMCSA Administrator since Ray Martinez left the post in 2019. Jim Mullen served as acting administrator after Martinez left. When Mullen retired from the agency last summer, Wiley Deck led the agency as deputy administrator from September until Jan. 20. For more information on the Nominee, click here.

FMCSA wants to further delay electronic medical certification rule’s implementation: FMCSA proposes to amend its regulations to extend the compliance date from June 22, 2021, to June 23, 2025, for several provisions of its April 23, 2015, Medical Examiner’s Certification Integration final rule. FMCSA issued an interim final rule (IFR) on June 21, 2018, extending the compliance date for these provisions until June 22, 2021. FMCSA proposes to finalize the IFR by further extending the compliance date to June 23, 2025. This action is being taken to provide FMCSA time to complete certain information technology (IT) system development tasks for its National Registry of Certified Medical Examiners (National Registry) and to provide the State Driver’s Licensing Agencies (SDLAs) sufficient time to make the necessary IT programming changes after the new National Registry system is available. Additional information on the delay can be reviewed here.

ATRI studying impact of rising insurance costs on trucking: From CCJ Trucking News Brief. The American Transportation Research Institute is in the process of collecting data to better understand the rising costs of trucking insurance and how those costs are ultimately impacting the industry’s overall operational costs. This research was identified as a top priority for the group in 2020. ATRI is asking motor carriers to provide data through an online data collection form that will quantify changes in deductibles, excess insurance over minimum requirements, and how drivers and fleets are balancing insurance costs against rising risk levels. The research will be complementary to ATRI’s annual Operational Costs of Trucking but will provide more granular detail on one of the most volatile cost centers in the annual analysis.

Support mounts to allow drivers under-21 to cross state lines: More than 100 organizations sent a letter to Congressional transportation leaders on Wednesday urging the passage of the DRIVE-Safe Act, legislation that would allow CDL holders under the age of 21 to cross state lines. Promoted as a solution to a shortage of truck drivers, the legislation – first introduced in 2018 and reintroduced last month – would classify 18-to-20-year-old CDL holders as “apprentices” and allow them to drive interstate while participating in an apprenticeship program. Among the transportation stakeholders to co-sign the letter to Congress were ATA, FedEx, National Tank Truck Carriers, Truck Renting, and Leasing Association, Truckload Carriers Association, UPS, and Walmart. Click here to review the complete article.

Tires the No. 2 cause of OOS violations during CVSA blitz: Tires accounted for 2,102 out of service violations (OOS) on the U.S. during 2020’s Commercial Vehicle Safety Alliance International Roadcheck – a whopping 19.7% of all trucks parked during the three-day enforcement event, and second only to brakes as a leading cause. Roughly the same percentage of trucks were parked in 2019 and 2018 with tire and wheel violations. With 2021 Roadcheck kicking off next week, a lot of things can go wrong with a tire. There are 12 tire violations that can place a rig out of service, but with 18 of them needing some degree of inspection, there’s plenty to overlook. For more information on tire safety, click here.

Federal court rules California’s AB 5 applies to trucking, dealing blow to owner-operator model in state: The leased owner-operator model in California suffered a severe blow Wednesday as the Ninth Circuit Court of Appeals reversed an injunction that had exempted the trucking industry from state’s AB 5 law and the ABC test for determining validity of any independent contractor classification. Transportation specialists Scopelitis, Garvin, Light, Hansen and Feary said the California Trucking Association has 14 days to seek rehearing and up to 150 days to appeal with the U.S. Supreme Court. Scopelitis added that the injunction will be lifted either seven days after the expiration of time to request a rehearing or following a denial of a request for rehearing. Or it could be stayed upon further petition of CTA, such as if CTA seeks review by the U.S. Supreme Court. To read more on this ruling, click here.

CASES

AUTO

How much weight is given to the fact that the motor carrier determined that the accident was preventable? The motor carrier did not want that piece of evidence admitted and sought to exclude it. The Southern District of Ohio ruled that “until evidence is proffered explaining how Swift reached its “preventability” determination, no evidence, testimony or statement of counsel, even during voir dire and in opening statements, is permitted referring to Swift’s finding that the subject accident was “preventable.”. If that evidence was introduced at trial the court would then rule on its admissibility. Akbar v. Khai, 2021 WL 1206527

Over in New Jersey the court reversed and remanded an action in which a jury verdict was rendered in favor of the motor carrier. The court held that it was a prejudicial error for the court to exclude the statements of the motor carrier’s safety department that the accident was preventable and that the driver failed to follow protocols. Hassan v. Williams, 2021 WL 1380211

The Northern District in Texas denied a default judgment to an insurer seeking a declaration that the commercial auto policy and the MCS-90 had no application to a claim. The court recognized that the driver was in default, however as other parties were actively disputing the plaintiff’s position the court did not want inconsistent declarations. National Casualty Company v. KT2 LLC., 2021 WL 1338221

Interesting. While a motor carrier would not bear any vicarious liability for an assault that a driver committed following a minor accident, it might bear liability for negligent hiring, retention or supervision of that driver. The Superior Court in Delaware held that there were questions of fact as to whether they should have been more aware of the driver’s violent tendencies. Cook v. J&V Trucking 2021 WL 1292796

In a claim seeking damages arising from a multitruck accident the Western District in Oklahoma concluded that the defendant motor carrier failed to present any evidence that the other motor carrier knew or should have known that its driver was likely to operate the tractor-trailer in a reckless or incompetent manner and therefore was entitled to summary judgment on the claim for negligent entrustment. The fact that the driver had sleep apnea and one minor previous accident was not sufficient to support the claim. Kohler Transport, Inc. v. Central States Trucking Co., 2021 WL 1254682

Whether the commercial auto insurer was obligated to tender payment back to the injured party’s insurer following a truck action remained a question of fact in the Eastern District of Missouri. The court held that the plaintiff was specifically required to plead the facts to support a negligence claim against the motor carrier and that the application of the statute of limitations to the claim would remain to be resolved as the parties disputed when the claim for reimbursement accrued. United States of America v. Secura, 2021 WL 1265200

Over in the Southern District of Mississippi the court permitted the plaintiff to amend her complaint to allege claims for negligent supervision, training, instruction, training and punitive damages. This despite the fact that the motor carrier conceded vicarious liability for the actions of the driver. Clayton v. Gaidarik, 2021 WL 1328920

When there was no evidence that the motor carrier did not comply with its obligations under the federal safety regulations the Western District in Virginia concluded that the plaintiff had failed to support a direct claim for negligence against the motor carrier following a truck accident. The truck driver did not fare as well, as the court concluded that plaintiff stated plausible willful and wanton negligence claims for punitive damages against the driver. Paul v. Western Express, Inc. 2021 WL 1259446

A trial court’s decision to not allow the plaintiff to remove a juror resulted in the 4th District of Florida reversing a defense verdict for a trucker and sending the case back for a retrial. In this case the truck driver was in the southbound lane, was hit by a car traveling northbound, causing the truck driver to flip the vehicle and hit another vehicle resulting in a fatal accident. The jury found the accident unavoidable by the truck driver. Now they will have to retry the liability question. Lafayette v. Moody, 2021 WL 1397538

Can you get cell phone and text records for an extended time period before a crash? The Eastern District of North Carolina agreed that determining whether the driver generally talked or texted during transport was relevant when he struck the plaintiff decedent while on his phone. The records were required to be produced, although the content of the messages would not be released McNeil v. Glasco, 2021 WL 1206588

Speaking of cell phones, consider this. The Eastern District of Pennsylvania held that the plaintiff could sustain a claim for punitive damages based upon the driver’s potential recklessness in looking at his cell phone while driving the truck. He pushed her vehicle for 30 seconds before he noticed that he was doing so, allegedly distracted by the cell phone. Tjokrowidjojo v. San Lucas, 2021 WL 1561956

Whether the truck driver was wanton in causing the truck accident that injured the plaintiff remained to be considered by the jury. The Northern District of Alabama held that the plaintiff had alleged sufficient facts to support a claim when the undisputed evidence establishes that the driver created the circumstances that caused his accident through an unforced error. Johnson v ABF Freight System, Inc. 2021 WL 1320500

. In a related case the court held that the negligence claims against the motor carrier failed under Alabama law because the plaintiff had not demonstrated that the motor carrier knew or had reason to know that the driver was not a competent driver. 2021 WL 1312873

The Eastern District of Louisiana denied summary judgment to the plaintiff on the issue of liability following a truck accident. Even though the truck driver “failed to keep a proper lookout and attempted to change from the right lane to the middle lane, causing his vehicle to abruptly enter [the] Plaintiffs’ lane of travel and collide with [the] Plaintiffs’ vehicle” there remained questions of fact that required that the case go to the jury. Baham v Moore, 2021 WL 1165415

The same motor carrier did well in another jurisdiction too. Direct claims for negligence against the motor carrier failed in the Eastern District of Pennsylvania when the motor carrier conceded vicarious liability for the actions of the driver. While it might be possible if the plaintiff alleged a viable claim for punitive damages, this plaintiff did not. Carson v. Tucker, 2021 WL 1193110

When it was only during the course of discovery that the plaintiff learned that the owner of the tractor and the owner of the trailer were different people the District Court in New Mexico permitted the plaintiff to amend the complaint to assert new claims against those parties. The existing defendants could not show prejudice by the amendment. Haertlein v. Amerifield, 2021 WL 1259663

Plaintiff was unable to sustain a cause of action against Amazon following a truck accident which injured the plaintiff. The Southern District of Indiana concluded that the plaintiff could not support a duty owed by Amazon to the motoring public. There was no factual support for a claim that Amazon was aware of the problems with the vehicle which may have led to the accident. Richardson v Rasulov, 2021 WL 1429005

A win for the motor carrier in the Northern District of Texas. After the parties rested at trial the court granted judgment in favor of the motor carrier on claims of gross negligence. The jury agreed, giving the motor carrier a defense verdict on the direct negligence claim too. Hanan v. Crete Carrier Corp., 2021 WL 1237105

The Eastern District of Kentucky held that a truck broker was entitled to dismissal of the suit filed against it for a truck accident when the plaintiff failed to complete service in a timely manner. Stapleton v. Vicente, 2021 WL 1234636

The Northern District of Ohio refused plaintiff’s request to remand a case back to state court based upon plaintiff’s contention that removal was untimely. The court held that an off the record demand of one million dollars from plaintiff would not constitute an “other paper” triggering the time to remove the case. Perry v. Norfleet Transportation, LLC., 2021 WL 1176769

Be careful when you decide to bring a third party action after moving a case to federal court and the third party defendant is not diverse. The trucking company defendant brought an action against a party who allegedly negligently repaired the plaintiff’s vehicle, causing it to breakdown in the road, leading to the rear end collision with the motor carrier. The Western District of Kentucky held that the plaintiff would also have a right to assert a direct claim against the third party, which would defeat diversity and send the case back to state court. Joyner v. Bestway Express, 2021 WL 1318321

I always think it is important to take a look at discovery motions and the court’s leanings, especially in today’s nuclear verdict world. The District Court in Colorado was considering how much information the plaintiff could get on the general processes and procedures of the motor carrier when vicarious liability for the actions of the driver was admitted. The court held that while the plaintiff was entitled to this information as it related to the driver, it could not seek this information generally about all drivers. Clem v. Moore, 2021 WL 1238284

Across the road in Pennsylvania the Eastern District of Pennsylvania also dismissed all state law claims for property damages and personal injuries stemming from an interstate move where the plaintiff was injured while wheeling his motorcycle up the ramp of the moving truck. The court could not figure out who was the household goods carrier and who was the agent, leaving that issue to be resolved at a later date Cerbone v. Allied Van Lines, 2021 WL 1397011. Claims for negligent infliction of emotional distress and loss of consortium were also dismissed as preempted. 2021 WL 1374608

The Western District in Washington agreed that it was not the proper venue for a complicated coverage analysis as to the applicability of the motor carrier’s tower of coverage to claims against a shipper for injuries to a truck driver when a load of lumber fell on him. The court concluded that as California was also an appropriate venue, and the policies were issued to a California insured, California was a more appropriate venue, sending the case to the Central District of California for adjudication. Weyerhaeuser Company v. AIG Property Casualty, Inc., 2021 WL 1575364

Choice of law is often a pivotal component to a case, which was apparent in this case in the Northern District of Illinois. The plaintiff sought damages for negligence arising from an Illinois truck accident. However the plaintiff also sought damages for willful and wanton hiring, entrustment and retention. The Court found that the motor carrier rebutted, for these specific Counts, the strong presumption that the place of the injury governs. The actions related to the employment of the driver took place in Wisconsin, which would govern those claims. Wisconsin has a much more favorable standard of liability for the trucker. Kleronomos v. Aim Transfer & Storage, Inc., 2021 WL 1545428

CARGO
Even though the plaintiff thought the Carmack Amendment would be inapplicable to a claim that the motor carrier failed to care for damaged property after the loss, the Eastern District in Pennsylvania disagreed. The court concluded that all state laws claims were preempted when the shipment was subject to the Carmack Amendment. Asmis v. Philadelphia Truck Lines, Inc. 2021 WL 1387499

Over in the District Court in New Jersey the court determined that claims for breach of bailment and negligence were preempted by FAAAA in an action seeking recovery for cargo damages. The only claim against the carrier/warehouseman was a claim for breach of contract. Assicurazioni Generali v. Harbor Freight Transport Corp., 2021 WL 1401120

Although preemption is often addressed in the cases we report, it does not extend to totally intrastate transportation. The Eastern District in Wisconsin declined jurisdiction on a cargo claim that arose from transportation within the state of Wisconsin. The court remanded the case back to state court, concluding that there was no federal common law applicable to intra-state transportation. Asphalt Contractors, Inc. v. R&J Transport, 2021 WL 12501

Avoiding the impact of Carmack Amendment venue provisions is difficult. The Eastern District of Michigan concluded that as long as the transport was not for household goods and the contract term did not govern registration, insurance, or safety fitness, a forum selection clause is acceptable, provided the specific venue provisions under the Carmack Amendment were specifically waived (which they were not). The court agreed that a waiver of rights and remedies under the Carmack Amendment must “expressly” reference the statute in some way “on the face of the contract provision in question.” Michigan Custom Machines, Inc. v. AIT Worldwide Logistics, Inc., 2021 WL 1207358

The District Court in Massachusetts granted final judgment to the maintenance company when there was no causal connection between a tire change and damage to the cargo. After 3 years of litigation there was no evidence to support keeping them in the case. Woods Hole Oceanographic Institution v ATS, 2021 WL 1565418

What applies when the parties enter into an agreement to clean, store and move household goods in interstate commerce? The Eastern District of North Carolina concluded that neither an oral contract or a written work authorization were enforceable contracts, but that a claim under the Carmack Amendment might exist. The plaintiff argued that Carmack would not limit her recovery as the transportation services were part of a different primary purpose, i.e. the cleaning and storage and therefore exempt. The court held what the potential for the exemption was not shown without a question of fact and therefore denied summary judgment to the plaintiff. Bryand v. Core Contents Restoration, LLC, 2021 WL 1207719

PHYSICAL DAMAGE
How often do you see that there is an issue with the recorded VIN on the physical damage policy? The 5th Circuit affirmed a lower court decision finding that the insurer could not deny coverage because of an incorrect VIN when the evidence indicated that the damaged vehicle was the one that should have been on the policy. The court agreed with the reformation of the policy. Unfortunately the court also found that the insurer was responsible for a delayed payment, hitting the insured with additional damages under Louisiana law. Jackson v. Berkshire Hathaway Homestate Insurance Co. 2021 WL 142206

COVID 19
We probably are all reading about the insurance claims for business interruption caused by COVID-19. The Eastern District in Virginia considered a claim submitted by a trucking company that lost business when all non-essential in-store businesses were shut down. The court found that the plain language of the insurance policy was unambiguous, and by the unambiguous plain language of the policy, the claim based on the harm caused by COVID-19, a virus, was barred by the Virus and Organic Pathogen Exclusions – regardless of how the phrase “direct physical loss or damage” was interpreted. L&L Logistics & Warehousing Inc. v. Evanston Insurance Co., 2021 WL 1396280

Worker’s Compensation
The estate of a truck driver was unable to enforce a proposed settlement agreement for compensation when the driver was tragically killed in a motorcycle accident. The Court of Appeals in Iowa concluded that the estate could not establish that the settlement terms had been agreed upon by the parties prior to the death. The worker’s compensation settlement would be drastically impacted by the death of the claimant. Estate of Albaugh v. UPS Freight, 2021 WL 1400087

Thanks for joining us,

Jean & Chad

March 2021

Big news from CAB!

As many of you are aware, Central Analysis Bureau is now part of the Randall-Reilly family. The new relationship will provide benefits to CAB’s customers well into the future. The complete CAB team has made the transition including Jean, Shuie and our exceptional business and development teams. You can look forward to the same positive customer service interaction you’ve always experienced with CAB. We are all very excited about working with Randall-Reilly as their focus is on data relating to trucking, construction, agriculture, and other industrial markets. The Randall-Reilly and CAB combination reinforces our commitment to client responsiveness and continued product enhancements.

We hope you’re as excited about this new chapter in CAB’s history as we are! Have a great month!

CAB Live Training Sessions

Just a quick reminder that last month’s sessions, CAB Customization and Chameleon Carriers and Interrelated Entities were both recorded and are available for viewing at your leisure. They are available at the link below. Additionally, our complete library of recorded webinars is available in the Tools menu under Webinars or by clicking here. If you have a new associate or someone who wants to learn more or needs a refresher, we encourage you to point them in the direction of our pre-recorded webinars.

This month we will present two new live training sessions:

Tuesday, April 13th @ 12p EST: Sean Gardner will present an overview of CAB’s MC Advantage resource including the MC Dashboard, CAB report, BASICs Calculator, & Customized Alerts. This is a tool provided directly to motor carriers via our insurance carrier partners. For the first time, motor carriers can directly access their motor carrier data through CAB. Don’t miss out on this opportunity to learn about this powerful software. Click here to register.

Tuesday, April 20th @ 12p EST: Chad Krueger will present, CAB for Agents & Brokers. Learn about enhancements to the CAB ecosystem that can help drive growth and save time. Identify ways to use CAB data to change the conversation with markets and advocate for fleet customers and prospects. Use CAB List™ to monitor customers and ‘drive the wedge’ with prospects. Learn tips on how to leverage the BASICs Calculator™ and CAB’s Lead Generation tool, SALEs™. Click here to register.

CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

We are looking forward to connecting with you during these sessions so don’t hesitate to ask questions!

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CAB’s Tips & Tricks: Merging of DOT Numbers

This month we take this opportunity to discuss a function that was developed previously but has been asked about a number of times recently. That functionality question is: Does CAB have a tool that will allow the merging of multiple DOT numbers to get a clearer picture of the overall history of the entities? The answer is a resounding yes and it can be found in the upper left hand corner of the BASICs Calculator and is pictured in the screenshot below.

When you click that button, it opens the box below and you are free to enter multiple DOT numbers to merge the entities VINs, Inspections, Violations, and the like. You will also be able to see a combined geographic and equipment breakdown. It should be noted that CAB-BASIC scores are not generated for Crash and Unsafe Driving. The reason for this is due to the fact that unit count and vehicle miles traveled are part of the calculation and we don’t know the overlap of those units and vehicle miles traveled.

This is an important function when it comes to getting the true picture of an overall organization that might be operating multiple DOT numbers. Our users have told us on numerous occasions that their customers appreciate the combined view of their operations and we’re happy to provide this tool in the BASICs Calculator.

That being said, there are other situations, like the following case, which Jean reviews in the cases below, from the United States Court of Appeals, Tenth Circuit. KP TRUCKING LLC, Petitioner, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Federal Motor Carrier Safety Administration (FMCSA), Respondents. No. 20-9508.

The 10th Cir ruled that it is appropriate for the DOT to combine violations for two companies when it looked like they are a chameleon operation. Basically, under the regulations, safety violations by two companies can be combined when one of the companies changes its name or structure to skirt the consequences of prior violations. 49 C.F.R. § 386.73(b). Invoking this authority, federal regulators suspended a trucking company, Eagle Iron & Metal. When Eagle was suspended, another entity (KP Trucking, LLC) expanded its operations. Regulators viewed KP’s expansion as an effort to continue Eagle’s operations in order to bypass penalties and start anew on a fresh slate.

The above is an important situation to take note of and reminds us of the importance of CAB’s Chameleon Carrier alert. You may find it interesting to look up the motor carriers involved in the case via Carrier Central. In all cases, strive to understand the potential of the Chameleon Carrier exposure as much as possible prior to working with an organization.

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

THIS MONTH WE REPORT:

Cargo theft volumes, average values increased in 2020 Cargo theft volumes and values in the U.S. increased in 2020 over the previous year and also hit a five-year high, according to cargo theft recording firm Sensitech’s annual report. The firm notes that its data is an indirect representation of the overall cargo theft footprint and not a direct reflection. It uses data from transportation security councils, insurance companies and law enforcement organizations, which may not represent 100% of all thefts but does provide a cross-section of thefts to identify trends, the firm notes. Sensitech recorded 870 cargo thefts throughout the U.S. in 2020 – 222 in the first quarter, 230 in the second quarter, 185 in the third quarter and 233 in the fourth quarter. The average value of 2020 thefts was $166,854. For additional information on this topic, click here.

Senators Reintroduce Under 21 Interstate Driver Bill: The Developing Responsible Individuals for a Vibrant Economy Act, known as the DRIVE-Safe Act, would allow CDL drivers under age 21 to haul interstate loads in some circumstances. The regulation would apply to drivers who have completed, or are participating in, an apprenticeship program, according to the bill text. Such a program must include a 120-hour probationary period in which the driver proves competency in more basic driving maneuvers, followed by a 280-hour probationary period in which the driver proves competency in more advanced maneuvers. The DRIVE-Safe Act was introduced in the Senate in February 2019 and referred to committee, but no further action was taken. It is interesting to note that the trucking industry is split when it comes to lowering the age for interstate operations. The American Trucking Associations supports these efforts, while the Owner-Operator Independent Drivers Association is in opposition. For more information on the bill, click here.

Truck inspections expected to rebound in 2021 following significant COVID-caused sag: As COVID-related restrictions ease around the country, law enforcement officials anticipate a truck inspection rebound in 2021 from last year’s sharp decline. According to the Federal Motor Carrier Safety Administration’s (FMCSA) Motor Carrier Management Information System, roadside truck inspections dropped 23% from 3.5 million in 2019 to 2.7 million in 2020. Since then, COVID vaccinations have rolled out in growing numbers and states have continued to relax coronavirus rules which, according to FMCSA, may eventually lead to a return to higher pre-COVID inspection numbers. “We do expect the number of inspections in 2021 to outpace 2020, although it is too early to tell due to the uncertainty of the COVID-19 national health emergency,” FMCSA’s public affairs representative Duane DeBruyne said in a statement to CCJ. Please click here to review the complete article.

From ELD and HOS violation trends to self-driving trucks’ job displacement, major takeaways from FMCSA’s Analysis, Research & Technology forum:

Remote/offsite safety audits of motor carriers are here to stay. CCJ documented the surge in offsite/remote safety audits and compliance reviews over the past year. That trend is here to stay, said Joe DeLorenzo, FMCSA head of enforcement. The agency so far has “felt good about how [offsite audits] worked and how the agency was able to transition” quickly to those remote audits, he said. That was somewhat out of necessity when the pandemic hit, but it was also a stroke of good luck on the agency’s timing, he said.

HOS violations haven’t moved much since regs overhaul. Comparing the four months prior to the Sept. 29 change-over date in federal hours of service regulations to the four months after, total hours of service violations did drop some, but not in the manner FMCSA had hoped, said DeLorenzo. While total hours-of-service violations fell from 11,227 in the June 2020 to September 2020 time frame, before the new HOS regulations took effect, to 9,989 total violations in the four months from October 2020 through January 2021, the decline was due in large part to a dip in 30-minute break violations. Those dropped from 3,597 to 1,712.

False log violations have trended up under ELDs — and ELD violations have trended up under COVID. False log violations have trended up since hard enforcement of the ELD mandate began in April 2018, said DeLorenzo. “It’s a lot harder to cheat your ELD,” he said. “We’ve seen a slow and steady increase in identifying false log records at roadside.” He called it a “good story on ELDs,” in catching those violations. Also, due to the COVID pandemic and a corresponding greater push by FMCSA and state enforcement partners to conduct offsite audits of motor carriers, the number of safety investigations revealing ELD violations has climbed steadily.

To review the complete article, click here.

Contract freight market contracted in February: The American Trucking Associations’ advanced seasonally adjusted For-Hire Truck Tonnage Index fell by 4.5% in February after rising almost 2% in January, suggesting a decline in tonnage under contract moved by for-hire carriers amid the weather woes and other disruptions last month. Spot freight and rates on average were up in February in spite of such disruptions, while the “severe weather that impacted much of the country during the month” might well be the single cause for the contract freight’s drop, as represented in the index, said ATA Chief Economist Bob Costello. “Many other economic indicators were also soft in February due to the bad storms, but I continue to expect a nice climb up for the economy and truck freight as economic stimulus checks are spent and more people are vaccinated.” Complete article available, here.

CASES

TRUCKING REGULATIONS

I am putting this case in a separate section so that it is not skipped over. The 10th Circuit considered whether safety violations of two companies can be combined when one of the companies changes its name or structure to avoid the negative violations. The court agreed that they could consolidate the violations when there was factual support that the second company was continuing operations for an improper purpose. Check out the Tips and Tricks section of this report for ways for you to consolidate violations of multiple DOT numbers to get a true picture of a risk. KP Trucking, LLC v U.S. DOT, 2021 WL 868493

AUTO
While an insurer had no coverage under a commercial auto policy for a tractor which was not scheduled on the policy, it could not avoid the impact of the MCS-90. The Southern District of New York agreed with other jurisdictions that a motor carrier could not meet its financial obligations through policies covering other motor carriers involved in the transport. The court held that “It is clear .. that the federally mandated insurance obligations of one carrier cannot be satisfied simply by virtue of the fact that an injured party recovers an award greater than the federal minimum from another party “ Carolina Casualty Insurance Co. v Capital Trucking. 2021 WL 848064

The fact that a declaratory judgement action could hinge on whether the MCS-90 endorsement on the policy of the motor carrier covered liability for an accident was not enough for the Southern District in Florida to conclude that there was a sufficient federal question to warrant exercising the discretionary right to hear the case. It dismissed the insurer’s complaint. National Speciality Insurance Co. v. South Florida Transport, 2021 WL 980948

A motor carrier’s efforts to obtain summary judgment on independent claims for negligence against a motor carrier who had conceded liability for the actions of the driver failed in the Western District of Louisiana. The court held that it would continue to recognize such a claim until a decision was reached by the 5th Circuit and further concluded that there was a question of fact as to whether the driver was improperly trained by the motor carrier. Moreaux v, Clear Blue Insurance Co. 2021 WL 852295. In a related case the court agreed that one excess insurer was not obligated to indemnify the motor carrier for any claim for punitive damages. A second carrier was not as successful as the court held that there was a triable question of fact as to the driver’s intoxication and that the insurer had no exclusion for punitive damages. 2021 WL 855282

Too quick said the 4th Circuit Louisiana Court of Appeals. Summary judgment was reversed in an action against stevedoring service companies alleging that an unknown operator of a yard mule vehicle owned by those companies rear-ended the plaintiff’s vehicle. Too little discovery and the defendant was not afforded an opportunity to figure the claim out. Francois v. Ports America Louisiana, LLC,  2021 WL 911882

The Southern District of New York agreed that neither New York nor New Jersey law permits a plaintiff to pursue a claim of negligent hiring or entrustment where the plaintiff has established a vicarious liability claim which would render the employer liable for the damages caused by the actions of its employee. The direct claims against one trucking company were dismissed. However the motor carrier who initially jackknifed, setting in motion the events leading to plaintiff’s injuries, was not able to get summary judgment as there were too many questions left to be resolved. Martinez v. Harbor Express, LLC 2021 WL 1051623

The Eastern District in Pennsylvania held that independent claims for negligence against a trucking company would not be permitted when the motor carrier accepted vicarious liability for the actions of the driver. Such claims could be pleaded if there was a claim for punitive damages, which the plaintiff could not support. Miller v. M.H. Malueg Trucking Co., Inc. 2021 WL 858456

Adult children of a decedent were not permitted to seek a wrongful death claim against a trucking company following the death of their father. The Northern District in Indiana concluded Indiana law did not permit such a claim when the adult children were not true dependents of the decedent, granting judgment to the motor carrier. Sturgis v. R&L Carriers, Inc., 2021 WL 795665

What does it mean to occupy the vehicle? The Eastern District of Texas concluded the plaintiff’s were occupying a vehicle when they were getting on and off the vehicle to collect debris prior to the accident. The court concluded that the plaintiffs were entitled to underinsured motorist coverage from their commercial auto policy when they moved away from the vehicle to avoid being struck by a second tractor trailer. Maldonado v. Travelers Casualty Insurance Co. of America, 2021 WL 977895

An interesting issue was certified to the Arkansas Supreme Court by the Eastern District in Arkansas arising out of a fatal two vehicle truck accident. One truck driver was killed as a result of the subsequent fire in his vehicle. Under Arkansas law does a motorist who is involved in, but not at fault for a vehicular accident, have a duty to render “reasonable assistance” to the injured driver of the other vehicle and if so, what is reasonable assistance when the vehicle is on fire? Answers remain to be learned. Lovellette v. Lagos, 2021 WK 799090

While the Graves amendment does relieve lessors of liability, the application of the amendment to a particular accident is often a question of fact. The Eastern District of Arkansas concluded that it was premature to dismiss the claim against the leasing company when the plaintiff was alleging alternative facts which would support liability. Travis v. Leyva, 2021 WL 969899

The Court of Appeals in Houston disagreed with the trial court’s decision to enter a JNOV and apportion all liability for an accident to the pilot car which was supposed to have made sure the truck could travel under wires. The court held that the driver of the truck did have a duty to the public and did in fact bear liability for the loss. The jury verdict apportioning liability was reinstated. Gator Gone Safety Pilots v. Holt, 2021 WL 865239

Speaking of pilot cars, the District Court in Kansas considered the application of a general liability policy to a claim against a pilot company for failing to insure that the escorted truck traveled along the correct roadways. The truck struck a bridge causing serious damage. The court rejected the motion to dismiss filed by the pilot company in the declaratory judgement action, concluding that the language in the Policy’s auto exclusion endorsement, as supplemented by the definition of “auto,” was unambiguous and the suit properly pled that plaintiff had no duty to defend or indemnify. Penn-Star Insurance Company v. J&J Pilot, 2021 WL 1089418

Piercing the corporate veil to get upstream companies is difficult as the plaintiff found out in the Western District of New York. Plaintiff’s efforts to seek recovery from the parent company of a Canadian subsidiary for injuries suffered in a truck accident failed when plaintiff could not meet the necessary requirements to show that the parent company exercised the requisite control over the subsidiary. The plaintiff was, however, given permission to amend the complaint to try to allege an agency relationship. Looking for additional party defendants is often a key and understanding the potential exposure for that auto risk is important. Giarla v. The Coca Cola Company, 2021 WL 1110397

Ignore that suit for recovery of remediation damages at your peril. The Court of Appeals in Texas upheld the entry of default against a trucking company for the $127,237 plus interest bill for remediation of a spill after a truck accident. These can be big bills. Roberts v. Jay Fuller Enterprises, 2021 WL 1047052

Plaintiff files a timely suit in Texas which is transferred to Louisiana for lack of jurisdiction. In Louisiana the question is whether the suit is timely because it was filed initially in an improper court. By the time it got to Louisiana the statute of limitations had expired. The 5th Circuit overturned the lower court decision dismissing the case. The Court held that the suit against the trucker should relate back to the Texas filing date and was therefore timely. Franco v. Mabe Trucking Co., 2021 WL 1035958

The Middle District of Louisiana agreed that claims for negligence in the hiring, training, supervision, and retention of a driver would not stand when the motor carrier accepted vicarious liability. Motes v. Knight Speciality Insurance Co., 2021 WL 833946. The Western District of Oklahoma held the same in Sykes v. Bergerhouse, 2021 WL 966036

While the individual manager of a trucking company was granted summary judgment when plaintiff failed to produce any evidence that the manager negligently trained the driver, the remaining defendants were not as successful The Southern District of California concluded that there were too many questions of fact as to their liability for a truck/bike accident even though plaintiff could not establish exactly which of the defendant trucking companies was at fault for the accident. Gibson v Beach, 2021 WL 931178

Forum shopping is always an issue. The Superior Court in Pennsylvania vacated a trial court’s decision to dismiss an action brought in Philadelphia County (a judicial hellhole) seeking damages for an accident which occurred as a FedEx facility in Maryland when a truck driver was injured. At least the court remanded the case to determine whether moving it out of Philadelphia to another Pennsylvania venue may be more appropriate. Failor v. FEDEX Ground Package System, Inc., 2021 WL 1016776

Too soon says the District Court in Maryland. While the truck driver pled guilty to criminally negligent manslaughter following a truck accident, that fact alone would not permit judgment for the plaintiff on liability. In addition, whether the broker was actually the carrier for the road (“the duck rule” for those who have listened to me for years) was still a question of fact and the court would not rule that the dendantant carrier/broker was liable for the actions of the driver as a matter of law. Ortiz v. Ben Strong Trucking, 2021 WL 927423

A motor carrier was unsuccessful in striking a claim for punitive damages or obtaining a more definite statement on negligence. The Southern District in West Virginia held that allegations that the driver was operating the vehicle improperly while driving a tractor-trailer loaded with steel down a residential street, allegedly failing to maintain a lookout, driving too fast, and losing control of his vehicle supported a plausible claim that the driver consciously disregarded that his conduct would “probably result in injury to another.” Barker v. Meador, 2021 WL 849231

One for the trucker! The Middle District in Tennessee granted summary judgment to a motor carrier following a fatal accident where the plaintiff hit the rear of the motor carrier’s vehicle. The court held that the claim of negligence was unsupported when the plaintiff was intoxicated and there was no evidence to support claims for negligent hiring, supervision, and training. the plaintiff could not even establish the elements of a negligence claim, to say nothing of the additional element that the employer knew of the employee’s unfitness for the job. Humphrey v. Yobonta, 2021 WL 780731

The Court in the Eastern District of Kentucky agreed with the plaintiff that the trucking company should have ascertained that the damages were greater than $75,000 when reading the complaint for a fatal truck accident. The carrier failed to timely remove the action and so back to state court it went. Hall v M&T Trucking Expediting, LLC, 2021 WL 816908

In the Northern District of Alabama the defendant could not meet its burden that the plaintiff’s damages could exceed $75,000. Back to state court it went. Jones v. DeLeon, 2021 WL 1115279. However the same was not true in the Northern Division in Alabama where the defendant served admissions that the damages were more than $75,000 and the plaintiff failed to respond. Goosby v. Briggs, 2021 WL1032295

Back to state court it goes. The Western District in Texas held that a plaintiffs’ state common law claims against a truck broker for hiring a trucking company involved in the accident were not preempted under the FAAAA because the safety regulation exception applied. There was no federal question and therefore no jurisdiction so the court sent it back. Popal v. Reliable Cargo Delivery, 2021 WL 1100097

Over in the Eastern District in Missouri the motor carrier could not meet its burden that the plaintiff’s damages could exceed $75,000 when cargo tipped during transport. Apparently intra-state transport as the grounds for removal was diversity and not Carmack. Back to state court it went. Cane Creek Quarry v. Equipment Transport, 2021 WL 765287

Dashboard cameras can really help figure out who is responsible for a loss. The Western District in Louisiana granted summary judgment to a motor carrier sued by another commercial driver who slammed into the back of the defendant’s truck. The dashboard cameras showed that the plaintiff was not attentive and that the first driver did not negligently create a hazard. Reed v. Security First Insurance Co, 2021 WL 1032410

A motor carrier was partially successful in its request for summary judgment on claims arising from a truck accident. The Southern District of Alabama held a claim for negligent or wanton entrustment was unsupported when the driver was an owner operator and therefore could not entrust the vehicle to himself. In addition there was insufficient evidence to support a claim of wanton operation of the vehicle. However the plaintiff was permitted to proceed with a claim of wanton failure to place conspicuous markings on the trailer, which might have reduced the risk of loss. Waters v. Hall, 2021 WL 770415

Going to the jury! The Northern District in Alabama concluded that neither plaintiff or the motor carrier was entitled to summary judgment on claims of negligent and wanton hiring, training supervision, retention, dispatch and entrustment following a serious truck accident in which the truck driver lost control of the vehicle. The driver history is an interesting read and apparently was enough to create questions of fact on the cause of the loss. Hobbs v. U.S. Express, Inc., 2021 WL 913398

CARGO
Broker or carrier? Carmack or negligence? The District Court in Connecticut concluded that a complaint which alleged alternative theories of liability would not be subject to dismissal. The court concluded that plaintiff alleged facts to support liability against the defendant as a carrier under Carmack. In addition, the court concluded that even if the defendant was a broker the plaintiff could allege a claim for negligence, which would not be expressly preempted under FAAAA or subject to implied preemption under the Carmack Amendment. Covenant Imaging, LLC v. Viking Rigging & Logistics, 2021 WL 973385

Just a reminder that attorney’s fees are recoverable for household goods claims asserted under the Carmack Amendment. The Southern District of California afforded plaintiff more than $40,000 in fees. Inigo v. Express Movers, Inc., 2021 WL 948795

Thanks for joining us,

Jean & Chad

© 2021 Central Analysis Bureau