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Bits & Pieces

September 2021

Time flies when you’re having…fun? 

I know the last 18 months have been weird for all of us, but I continue to be shocked at how quickly the time has passed.  October starts my favorite time of year.  I love the cooling weather and the fall colors.  I just had the pleasure of completing a motorcycle trip through the Northeast US and Canada (13 states & 2 Provinces) and fall is shaping up to be beautiful.  We live in a beautiful part of the world and we are truly blessed.  Everyone we met along the way was wonderfully friendly and helpful.

So, whether you’re a pumpkin-spiced everything or a bring-back summer type of person, here’s to October! Lastly, I look forward to seeing many of you at the Motor Carrier Insurance Education Foundation conference on October 7th & 8th.

CAB Live Training Sessions

Tuesday, October 12th @ 12p EST: Mike Sevre will present Intro to CAB: Flow & Navigation. This is a popular session that we get a good number of requests for.  The session will focus on the layout of the site, how to find specific resources, and a general overview of CAB.  Please use the link below to register.

Tuesday, October 19th @ 12p EST: Chad Krueger will present on CAB’s Shipper Central Resource.  This is an enhancement available with our VITAL+™ resource.  The enhancement was released to the site a few months ago and affords a deep dive into a motor carrier’s shippers.    Additionally, it provides a way to search for specific shippers and associate inspections.   You can also review motor carriers transporting for the specific shipper.  If you’re not familiar with this resource, this is a great session for you!  Please use the link below to register.

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

Additionally, you can explore all of our previously recorded live webinar sessions including the following topics of interest:

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CAB’s Tips & Tricks: Reminder: Closed Enforcement Case Information Available

This is an enhancement that we put in place early in 2020, but we have had a few folks recently ask if we have the information, so here is a quick refresher.  Closed Enforcement Case information (if any) is located in the History Tab in the CAB Report®.  You will also find information from the last 6 years noted in the CAB Alerts section of the General Tab (first page) of the CAB Report. Detailed information, like the screengrab below, can be found in the History Tab.

As a quick background, FMCSA enforcement cases are initiated following compliance reviews, complaint investigations, terminal audits, roadside inspections, or other investigations. We will be providing the full history of closed enforcement cases. Why is this information important? CAB users can use this information to better understand if a motor carrier has a closed enforcement case and engage with the motor carrier to understand what caused the enforcement action and how it was resolved.

An enforcement case is deemed “closed” once FMCSA issues a carrier a “Notice of Claim” (NOC) and the carrier has (1) paid the penalty in full, (2) signed a settlement agreement, or (3) defaulted on the NOC, upon which a “Final Agency Order” was issued.

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

THIS MONTH WE REPORT:

NHTSA data suggests highway deaths climbing: Data shows traffic fatalities rise despite drop in miles traveled. The new year got off to a hot start with regard to traffic fatalities, logging a 10.5% increase in deadly accidents in the first quarter this year compared to last, according to U.S. Department of Transportation’s National Highway Traffic Safety Administration’s Early Estimate of Motor Vehicle Traffic Fatalities for the First Quarter of 2021. NHTSA estimates that 8,730 people died in motor vehicle traffic crashes in the first three months of 2021, and the increase comes even as driving declined. Preliminary data reported by the Federal Highway Administration show that vehicle miles traveled (VMT) in the first three months of 2021 decreased by 2.1%, or about 14.9 billion miles. The fatality rates per 100 million VMT for the first quarter of 2021 increased to 1.26 fatalities per 100 million VMT, up from the projected rate of 1.12 fatalities in the same time last year. 

CVSA Releases Bulletin on which Documents can be Accepted Electronically:  The purpose of this bulletin is to ensure that all enforcement personnel and industry stakeholders are aware of the acceptability of certain electronic documents, provide a central source for all the regulatory guidance, and provide examples of documents requested at the roadside or in a compliance review that can be surrendered in electronic format.  These are examples of documents that may be presented during a roadside inspection in electronic format: Driver medical cards and certificates; Skills Performance Evaluation certificate (if applicable); Delivery receipts, shipping papers or bills of lading (non-hazardous materials/non dangerous goods only) see link for note; Record of duty status; Supporting documents to verify record of duty status; Daily Vehicle Inspection Report (if applicable, Canada only); Periodic inspection certificates or reports; Lease agreement.  To review the full CVSA Bulletin, click here.

Spot load volume returns to pre-holiday levels: The number of loads posted to the DAT load board network rose 17% from Sept. 13-19 compared to the holiday-shortened Labor Day week, in line with expectations. The number of equipment posts increased 15% over the same timeframe. Spot line-haul van and refrigerated rates remained elevated as shippers work to move freight through congested supply chains, especially in port markets. The national 7-day average van rate topped $2.50 per mile last week and the reefer rate was $2.86 a mile — all-time highs for both equipment types. The overall number of loads moved on DAT’s top 100 lanes by volume rose 23.3% and the number of loads out of Los Angeles alone surged by 41% week-over-week. Rates from Los Angeles to Stockton jumped 41-cents to an average of $4.32 a mile (excluding fuel), $1.18 a mile higher than this time last year.  For more on this topic, click here.

Administration orders OSHA to Issue a COVID Emergency Temporary Standard (ETS): The ETS will require all Employers with 100+ employees to ensure their workers are vaccinated or tested weekly.  The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.  The rule is expected to be issued 30-60 days after the announcement on September 9th.  From there, the ETA can remain in place for six months.  After that, it must be replaced by a permanent OSHA standard, which must go through a formal rule-making process involving a standard notice-and-comment period.  Please click here for additional OSHA guidance on mitigating and preventing the spread of COVID-19 in the workplace.

Louisiana staged-accident fraud scheme up to 40 indictments, 27 guilty pleas:  Two more guilty pleas, seven indictments in Louisiana staged-accident fraud scheme.  United States Attorney Duane A. Evans has recently announced two more guilty pleas and seven new indictments in the widespread staged-accident fraud scheme in New Orleans, bringing the total to 40 indictments and 27 guilty pleas.  On Aug. 2, Genetta Israel, 53, of Houston, Texas, pleaded guilty to conspiracy to commit wire fraud. She and three others were charged with staging an accident on June 12, 2017, in New Orleans. Israel was allegedly recruited to participate in the scheme to obtain money through fraud.  Israel was treated by doctors and healthcare providers at the direction of an attorney also involved in the scheme and received a nearly $60,000 settlement from the staged crash.  For more information on this topic, click here.

CAB Calculates the Percentage of Unsafe Driving Violations that Receive Citations:  As most of us know, the CAB Report® (amongst many other things) provides individual inspection detail for motor carriers.  These could be clean inspections or inspections that result in violations.  An interesting thing to note in regard to Unsafe Driving Violations is that a driver can receive a violation, but not necessarily get a ticket or citation.  Thus the violation would not appear on the driver’s Motor Vehicle Record (MVR) review.  Basically, the violation is applied to the motor carrier’s CSA history and the driver’s Pre-Employment Screening (PSP) history, but the driver does not get a ticket, monetary fine, and/or citation.  Over the prior 12 months, about 33% of Unsafe Driving Violations have received a citation.  The highest Citation Rate is for Texting at 52%.  The lowest is Other Driver Violations at 17%.  Speed 4 (15 MPH+/Construction Zone) is 44%.  Draw your own risk management conclusions, but it is interesting to note the relatively low percentage of Unsafe Driving Violations that will actually appear on a driver’s MVR.  Below is an example of an inspection that resulted in a Speed 4 Violation, but not a Citation.     

Is the owner-operator model a legal minefield? Attorney weighs in: Being an owner-operator is an appealing career option for many drivers, but motor carriers that create opportunities through lease-purchase agreements face mounting legal challenges. Motor carriers were hoping for the Trump administration to change the Federal Labor Standards Act to strengthen their defense. Changes were scheduled to take effect on March 8, 2021, but were quickly nullified when the Biden administration took over control of the Department of Labor. The Democrat-controlled House of Representatives also passed a PRO Act earlier this year to amend the federal National Labor Relations Act with the same Assembly Bill 5 (AB-5) test used in California to determine contractor status. The AB-5 test has been the law in California since January 1. The PRO Act passed in the House but has not gone anywhere in the Senate yet.  To continue this article, click here.

Joshi has confirmation hearing, set to lead FMCSA:  Joshi, nominated by President Joe Biden in April to serve as the agency’s full-time administrator, previously served on the New York City Taxi and Limousine Commission. ATA President and CEO Chris Spear recently sent a letter to leaders of the Committee on Commerce, Science and Transportation expressing his group’s support for Joshi’s candidacy.  “In her eight months serving as Deputy Administrator, Ms. Joshi has become a vital partner to the trucking industry in addressing issues of safety, infrastructure, workforce development, and more,” said Spear wrote. “The COVID-19 pandemic and its disruptive impact on the U.S. supply chain did not pause for the transition to a new Administration, and her response to those challenges has been swift, sure, and effective.“  Spear said ATA has been particularly impressed with Joshi’s reliance on data to address real-world needs, throughout her tenure as Deputy Administrator.  For more information, click here.

Steering issue prompts recall of over 100,000 Freightliner Cascadias (from CCJ News Brief): More than 105,000 Freightliner trucks recalled for steering issue. Daimler Trucks North America is recalling approximately 105,183 model year 2019-2021 Freightliner Cascadia tractors due to a potential issue in the steering system, according to National Highway Traffic Safety Administration documents. According to the recall, the drag link taper joint in the affected trucks may not have been tightened sufficiently and could come loose, resulting in a complete separation of the drag link from the steering arm. Separation of the drag link can cause a complete loss of steering control. DTNA dealers will inspect the drag link taper joint and repair it as necessary. Click here for NHTSA’s Safety Recall Report.

CASES

AUTO

The Court of Appeals in Michigan agreed that when the motor carrier carried the insurance on a tractor leased from an owner operator, that insurer was responsible for PIP benefits when the owner-operator was injured. The court determined that the owner operator was essentially self-employed by his corporation and could be seen as being an employee of both the motor carrier and himself. The Court concluded that under MIchigan law, MCL 500.3114(3) an injured person who owned the vehicle involved and who worked as a self-employed independent contractor was subject to the employer-employee exclusion leaving the defendant, who insured other vehicles for the plaintiff, as highest in priority for payment. Toduti v. Progressive Michigan Ins. Co., 2021 WL 4001802


The plaintiff passenger could not be liable for the accident with a tractor-trailer so the Western District of Texas agreed that any affirmative defense of contributory negligence should be dismissed. The same was not true for the plaintiff vehicle operator, who the motor carrier claimed was driving too fast and contributed to the cause of the accident. That claim remained. Conejo v. EMJB, Inc., 2021 WL 4254899


Everyone wants to get away from litigating in Pennsylvania. The Eastern District of Pennsylvania agreed that the motor carrier defendant could move the personal injury action to the state where the accident occurred. The court disagreed that plaintiff’s medical treatment, post accident, in Pennsylvania could support venue in its jurisdiction. Miller v. SAWA Transportation, 2021 WL 4399665


When the motor carrier had no clear policies on when and where a driver could stop to urinate the Eastern District in Arkansas concluded that the plaintiff could allege independent claims of negligence against a motor carrier who conceded vicarious liability for a fatal accident. The accident occurred after the driver attempted to pull back into moving traffic after stopping on the side of the road to relieve himself. The court also held that a child born after the death of the plaintiff was not entitled to recovery under the wrongful death statute. Crouch v. Master Woodcraft Cabinetry, 2021 WL 4155583. In a related decision the court permitted the plaintiff’s expert to testify concerning the impact of failure to comply with certain federal safety regulations safety regulations. 2021 WL 4150206


A motor carrier asserted a counter-claim against a plaintiff for towing costs, impound fees, insurance surcharges and the driver’s claims for lost wages, lost earnings and emotional trauma when the defendant struck and killed the plaintiff. The plaintiff was intoxicated and sitting in an unlit vehicle on the road when struck by the defendant. While the carrier failed to file the counterclaim within 6 months of the death of the plaintiff, which would make it time barred, the Northern District of Ohio concluded that the counterclaim could still be asserted as an offset against the plaintiff’s claim. Krendl v. Intermark Transport, 2021 WL 3887765. In a related decision the court denied summary judgment to the motor carrier, who contended that the plaintiff decedent was solely at fault for the accident. As there was a reasonable question of fact on whether the defendant should have seen the vehicle and stayed back further the motion was denied. 2021 WL 4125401


Plaintiff’s personal auto policy provided no UM/UIM coverage when the tractor plaintiff owned was insured under a different policy. After exhausting his commercial auto UM policy, the plaintiff sought additional protection under his personal policy. The Eastern District of Pennsylvania agreed that the “regular use” exclusion under the policy was applicable as the vehicle was furnished and available for his regular use. Campbell v. The Travelers Home and Marine Insurance Co., 2021 WL 4137507


Direct claims asserted against officers of a trucking company could not withstand a motion to dismiss in the Eastern Division of Michigan. The court held that the plaintiffs could not support breach of any individual duty owed by the officers of the trucking company. The claim against the company and the truck driver for negligent, but not intentional, infliction of emotional distress arising out of the fatal accident was permitted to proceed. Solek v. K&B Transportation, Inc., 2021 WL 4290181


The battle of the experts is often a focal point in the war of litigation. The Southern District in West Virginia, following up on last month’s decision, evaluated expert issues on the standard of care of truck brokers, among other issues. The court concluded that the plaintiff’s expert could testify on the standard of care required for truck brokers when selecting motor carriers. Gilley v. C.H. Robinson Worldwide, Inc. 2021 WL 4316811


When the plaintiff failed to allege any facts to support independent negligence claims against a motor carrier for an accident involving one of its drivers, the Middle District of Georgia concluded the claims must be dismissed. The dismissal was without prejudice, giving the plaintiff an opportunity to repled the claims with factual support. Bryan v. Swisher, 2021 WL 434271


Moving assets from one company to another company does not always accomplish the intended effect. The Northern District in Ohio concluded that the plaintiff would have to bring a separate action, after the initial defendant was found liable, if he wanted to seek to attach the assets of the new company. The case was too far down the line to allow for amendment in this suit, but plaintiff had a right to bring a separate action for the alleged fraudulent transfer of assets. Sutphen v. Midwest Construction Services, Inc., 2021 WL 4340065


A motor carrier was not successful in defeating a temporary restraining order imposed by the Court of Appeals in Texas. The court held that there was ample evidence that the plaintiff would be irreparably
harmed if the motor carrier was not enjoined from disposing of the vehicle, the cargo and the data involved in the truck accident which injured the plaintiff. GL Logistics Co. v. Flores, 2021 WL 3862232


While a bus company was entitled to summary judgment on direct negligence claims when it conceded vicarious liability for the actions of an intoxicated and speeding bus driver, the same result was not accorded for the claims for gross negligence and punitive damages. There was evidence to support the claim and the Southern District in Mississippi agreed that state law would allow those claims to survive. The decision also addresses the admissibility of various experts proffered by the plaintiff. Deliefde v. Nixon, 2021 WL 4164680


A truck broker was required to produce a copy of its contract with its customer in the Eastern District of Missouri. The court rejected the argument that the contract was a trade secret and concluded that it was relevant to determine whether the defendant was a carrier or a broker for the purposes of its liability for the accident. Carter v. Khayrullaey, 2021 WL 4033009


When the accident occurred in Nebraska, the fact that the motor carrier was a California corporation would not allow the plaintiff to assert a claim for punitive damages under California law. The District Court in Nebraska acknowledged that Nebraska law prohibits punitive damages. Vanicek v. Lyman-Richey, 2021 WL 4196969


The fact that a plaintiff made a settlement demand for more than $75,000 before serving suit papers did not trigger a duty to remove a case which was subject to federal court jurisdiction. The Central District of California concluded that the motor carrier had timely removed the case when it did so within 30 days of receiving the complaint and further concluded that plaintiff’s complaint could not withstand a motion to dismiss for failure to state a claim. The plaintiff was granted leave to amend. Plotkin v Swift Transportation Company, 2021 WL 4197337


Claims against the U.S. Government arising from a truck accident when the truck was hauling U.S. Mail was dismissed by the Northern District of Mississippi. While the plaintiff was permitted to continue the suit against the motor carrier it failed to exhaust all required administrative remedies against the U.S government. The court also held that the government had not waived its sovereign immunity by directing and controlling the transport. James v. Ailes, 2021 WL 3877681


In the battle of the experts, the Court told them both to go home. The Southern District in Ohio concluded that the opposing experts could not testify as to whether the driver did or did not violate FMCSRs by operating in an out-of-service condition. The breach, even if it occurred, did not cause or contribute to the accident. Evans v Aloiso, 2021 WL 4189692


The District Court in North Carolina determined that it has no need to adjudicate a declaratory judgment action on the applicability of coverage for a truck accident when its only connection to the matter was the situs of the accident. The facts of the accident were not relevant, necessarily, to the evaluation of coverage under the policy and therefore the court transferred the case to the home state of the motor carrier. Progressive Casualty Insurance Co. v. Future Van Lines, 2021 WL 4413319


The District Court in Minnesota was not happy with the parties in a dispute over premium returns and security for filing claims when there was a large self-insured retention under the policy. After the parties resolved all of those issues they continued to litigate the issue of fees and potential damages that might have occurred. The court rejected these claims and sent them on their way. RLI Insurance Co. v. Stan Koch & Sons Trucking, Inc. 2021 WL 4199370


When the plaintiffs, a truck driver and his employer, sued both the insurance carrier and the broker for uninsured motor coverage, the Southern District of Georgia agreed that it had no jurisdiction over the removed action when the broker was not diverse to the plaintiff. Plaintiffs’ argument that the broker bore liability if the insurer was successful in denying the coverage was not without some merit and therefore the broker was not a sham defendant. The Onionman Company v. Nationwide Agribusiness Insurance Co., 2021 WL 4282582


When the plaintiff failed to properly serve a Canadian truck driver the Court of Appeals in Washington agreed that the complaint against the driver should be dismissed. The court also held that the plaintiff could not amend the complaint to add in the truck company who employed the driver when it failed to seek the amendment prior to the expiration of the statutory limitation of time. The identity of the company was easily ascertainable during the limitation period. Guenther v. Galaxy Pacific Services, LLC. 2021 WL 4436211


Plaintiff’s claim for willful and wanton negligence against a motor carrier were permitted to stand in the Southern District of Illinois. The motion to dismiss was denied as the court agreed that the plaintiff’s allegations that the carrier engaged in willful and wanton conduct by flouting and encouraging its employee to ignore safety standards and regulations, by failing to adequately train its employee, and by recklessly employing someone with a history of motor vehicle crashes and citations was enough to defeat a motion to dismiss. Montgomery v. Caribe Transport II, LLC., 2021 WL 4132221. In a related decision the court denied the motion to dismiss filed by the truck broker, concluding that FAAA does not preempt a claim of negligence against a broker. 2021 WL 4129327


In another case the Southern District of Illinois also concluded that FAAA did not preempt negligence claims against brokers. However, in this case there was no evidence to support a claim against the broker for vicarious liability, negligent hiring or voluntary undertaking and the broker was granted summary judgement on all counts. Crouch v. Taylor Logistics Company, LLC., 2021 WL 4355403


The Graves Amendment remains applicable to claims against lessors of vehicles which meet the requirements of the amendment. The Western District of Arkansas dismissed the claim against the lessor, and also dismissed direct negligence claims against the motor carrier as it had conceded liability for the driver’s action which may have led to the crash. Hamilton v. Brewster, 2021 WL 4236607


The District Court in Massachusetts also applied the Graves Amendment to negligence claims asserted against a lessor of the tractor, concluding that summary judgment was warranted in favor of the lessor. The court also held that the plaintiff, who was a passenger in the defendant’s tractor, was not entitled to pursue the defendant because there was a direct employment relationship between them and the defendant was liable for the payment of workers’ compensation through the company that hired both of them The exclusive remedy of worker’s compensation was applicable to the plaintiff’s claims. Moura v. Cannon, 2021 WL 4422964


CARGO
The Northern District in Texas dismissed a claim for intentional infliction of emotional distress against a motor carrier arising from a shipment of household goods. The court also dismissed the claim for attorney’s fees, but does not seem to have considered the applicability of the regulation which allows for attorney’s fees in certain circumstances. Plaintiff did not oppose the motion so that falls on the plaintiff. Maniaci v. Plycon Transportation Group, 2021 WL 4190643


Interesting turn of events on a household goods claim in the Eastern District of New York. The court denied the plaintiff’s motion for a default judgment against the defendants who are alleged to have wrongfully withheld delivery of plaintiff’s goods for more than a year, The court concluded that the plaintiff had not properly alleged whether he claimed that the defendants were motor carrier subject to Carmack or brokers, potentially subject to state law claims. Plaintiff is going to have to make up his mind and replead the complaint. The court did agree that individual defendants were alter egos of the motor carrier. Hammock v. Moving State to State, LLC., 2021 WL 4398086


PHYSICAL DAMAGE
The plaintiff was unable to sustain claims against its physical damage insurer for a number of reasons, including delay. Plaintiff claimed that he never got the checks for the equipment (which are alleged to have been stolen by his ex wife). Waiting more than 3 years to bring the action against the insurer was not an option and the suit was time barred. The court also held that the insurer was not responsible for toll charges incurred after the loss because the plaintiff retained the title to the vehicle and the insurer had no legal obligation to take title. Weddington v. Progressive Casualty Insurance., 2021 WL 4423067


WORKER’S COMPENSATION
Take a look at Moura v. Cannon, 2021 WL 4422964 for a decision on the applicability of the worker’s compensation rule when the defendant paid for the worker’s compensation benefits afforded by an employing party.


The Western District of Louisiana concluded that the United States could not assert tort immunity for injuries to a truck driver delivering mail for the government. Even if the government was correct that the work furthered by the driver was within the trade, business, or occupation of the USPS, the contract between the USPS and the motor carrier did not recognize USPS as a statutory employer, and therefore there was no immunity. Frantom v. USA, 2021 WL 4343949


When a trucking company failed to maintain worker’s compensation insurance for its drivers, the Court of Appeals in Utah agreed that the plaintiff driver was entitled to assert all direct negligence claims against the motor carrier. Because these claims were permitted under the Worker’s Compensation Act, the plaintiff was also able to assert a claim for attorney’s fees under the Act. Farman-Rava v. Blu-Auto Transport, LLC., 2021 WL 4025718.

Bits & PIeces August 2021

I hate to admit it, but summer is coming to an end…

I hope everyone has had a great summer.  Many of us are sneaking in final vacations, some are sending kids off to college (we currently have 2), others are or have already sent kids back to grade school & high school.  This time of the year always reminds me that fall is not far away.  But first, we have a wonderful opportunity to enjoy Labor Day weekend.  

What is Labor Day and why do we celebrate it?

Labor Day is a time to pay tribute to American workers, and all of their many contributions and achievements through the years. Created by the labor movement in the late 19th century, Labor Day honors the men and women who fought tirelessly for workers’ rights, especially the eight-hour workday we have now.

Have a great Labor Day and see you next month!

CAB Live Training Sessions

Tuesday, September 14th @ 12p EST: Chad Krueger will present CAB for Underwriting. This is a popular session we’ve done in the past and is recommended for many CAB users. The session will be an overview of tools, resources, and enhancements. As the title suggests, it will be geared towards underwriting, although many of our other users find this session very informative. Click here to register.

Tuesday, July 21st @ 12p EST: We will present CAB List Training: Monitoring, Carrier Health & Summary Reports.  If you’re not using CAB List, you should be.  Usage of this tool is growing every day and allows users to monitor their clients and prospects to identify ways to reach out or take action to provide services and expertise.  Carrier Health can allow you to review your book and the Summary Reports will provide you a clearer picture of the risks you work with.  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

Follow us at CAB Linkedin Page  CAB Facebook Page

*HOT TOPIC!!!  Additional PDF Feature Added to Carrier Central Magnifying Glass.

As the screengrab below shows, we have added a new feature to the top bar when hovering over the magnifying glass in Carrier Central.  We had a number of customers reach out wanting a quick way to access and save the quick grab information, so we added a PDF option that allows a download with additional information, including Carrier Name, OOS Inspection Counts, and Insurance Policy Info.

As with similar enhancements, this was brought to us by our users.  We hope you find it a useful timesaver.

THIS MONTH WE REPORT:

FMCSA Issues Emergency Declaration Related to Hurricane Ida:  FMCSA has issued an Emergency Declaration for AL, AR, LA, MS, TN, TX in response to Hurricane Ida.  This grants temporary relief for drivers and carriers providing direct emergency response transporting supplies, goods, equipment, fuel, and persons.  For more information on the Emergency Declaration and what it means, click here.

More than 6,700 trucks, 2,000 drivers placed OOS during Roadcheck: Approximately 83.5% of more than 40,000 trucks inspected during the Commercial Vehicle Safety Alliance’s three-day International Roadcheck inspection blitz had no out-of-service violations, according to CVSA. Inspectors did, however, remove 6,710 commercial vehicles and 2,080 drivers from roadways – a 16.5% vehicle and 5.3% driver out-of-service rate – over the three-day period from May 4-6. Last year’s Roadcheck, held in late September,  had a vehicle out-of-service rate of 22.2% and a driver out-of-service rate of 5.3%. Inspectors primarily conducted the North American Standard Level I Inspection, a 37-step inspection process that involves a thorough inspection of the vehicle (including underneath the vehicle) and the driver. Inspectors performed 23,135 Level I Inspections and removed 5,048 vehicles (21.8%) and 1,200 (5.2%) drivers from roadways.    For more information, click here.

Brake adjustment a sneaky Top 5 truck out of service violation thanks to misdiagnosis and improper shop practices: They’re called automatic slack adjusters for a reason, and the manufacturers that make them want to keep it that way. Commercial Vehicle Safety Alliance (CVSA)’s annual Brake Safety Week was Aug. 22-28, placing additional emphasis on one of the leading causes of out of service violations and added pressure on fleets and technicians to get it right. Yet despite years of warnings, automatic slack adjusters (ASA) continue to be manually adjusted by technicians who may not know any better or who may be eager to get a truck out of the shop and back out on the road. “If a fleet is manually adjusting a slack adjuster regularly it can harm the longevity of the unit,” said Chris Christiansen, warranty/technical services coordinator, Accuride Corporation.  For additional information on this important topic, click here.

Data Management: Watch, coach & delete: Using data to fight off accident verdicts: Just last week, two trucking companies – AJD Business Services and Kahkashan Carrier Inc. of Canada – were hit with a $1 billion verdict in the 2017 wrongful death case of an 18-year-old in Florida, according to First Coast News. Since 2011, trucking verdicts over $10 million occur about every other month, said Rob Moseley, Founding Partner, Moseley Marcinak Law Group, speaking at the CCJ Symposium in Birmingham, Alabama. Technology creates data, and Moseley said carriers will be held accountable for knowing what the data says and reacting to it – even if you don’t. “Every time there’s another bell or whistle on the truck, there’s more data created,” he said, adding that data collection systems include the truck’s electronic control module (ECM), collision avoidance, roll stability, event recorders, and electronic log, among others. Moseley noted that on a recent accident investigation, he watched as an expert investigator plugged into seven different locations on the truck to retrieve data. To learn more about motor carrier data management, click here.

ATRI-Developed Assessment Tool Shows Promise for Identifying Safe, Younger Drivers: The American Transportation Research Institute released the results of the Phase 1 Beta Test of its Younger Driver Assessment Tool.  This is the second in a series of technical memoranda from ATRI exploring the potential for an assessment tool to identify the safest drivers among 18-20 year olds, a critical component of expanding interstate CDL eligibility to younger drivers.  Results from ATRI’s beta test show promise for the statistically validated assessment to differentiate safer drivers from less safe drivers.  ATRI’s beta test administered a comprehensive assessment battery to current commercial truck drivers.  Among the statistically significant findings, the drivers in the safest group based on their MVR and PSP data had the highest scores on Conscientiousness and Agreeableness, and the lowest scores on Experience-Seeking.  Additionally, drivers in the “less safe” group exhibited marginally greater sensitivity to conflict in the Multi-Source Interference Task, indicating difficulties with cognitive control.  For access to the full report please click here.

From CCJ Daily: Cargo theft recording firm warns of potential theft ring in East Tennessee: A tractor and 53-foot trailer were stolen from a truck stop in Meadowview, Virginia, on Aug. 3, while left unattended during a DOT break, according to a risk alert from cargo theft recording firm Sensitech. The tractor was located later that night in Kingsport, Tennessee, but there were no signs of the trailer until the Sensitech GPS device embedded in the trailer provided an updated location in Knoxville, Tennessee. Through coordinated efforts with the Knox County Sheriff’s Office and the Sensitech Emergency Response Team, the stolen trailer was found at a local truck stop, leading to the successful recovery of the cargo, which had a high product and resale value, Sensitech said. The firm believes the theft was carried out by an organized criminal group. Sensitech said the criminals target loads while unattended, then unhook the trailer and abandon the tractor. A second stolen tractor is used to transport the stolen trailer once unhooked.

Toughest states for brakes, other vehicle violations: While no true professional among owner-operators and drivers wants anything to do with the truck’s air brake system being in any way out of order, it’s also true that some states put more necessary focus on braking systems than do others during inspections. With the annual Brake Safety Week inspection event of the Commercial Vehicle Safety Alliance recently concluding, it’s a safe bet the states highlighted — our top 15 for brakes violation prioritization in vehicle inspections — will be up to their normal activities. For more information on this topic, click here.

CAB Calculates BASICs Over Threshold for the Trucking Industry: Do you ever wonder the number or percentage of motor carriers over or under the alert thresholds? CAB’s Data Scientist calculates these and other interesting data results regularly. For this case, the “Number of Carriers” table shows the number of carriers in each power unit range with a percentile under or over the alert threshold in each BASIC category. The “Percentage of Carriers” table shows the percentage of carriers in each power unit range with a percentile over the alert threshold 1) out of the set of carriers who were assigned a percentile (w/pctile), and 2) out of the set of carriers who in the last two years had at least one relevant inspection (w/insp). Only a very small proportion of carriers fall in the first category and a somewhat larger minority in the second category (it varies by carrier size and BASIC). Note that for the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Also, note that different BASICs and different types of carriers have different thresholds. See the table on the right or the SMS website. Percentiles are as of the end of July, 2021. 

CASES

Commercial Auto

While a motor carrier was unsuccessful in obtaining summary judgment on all of the counts seeking damages arising from a truck accident in snowy icy weather, it was successful on the driver claims of wantonness and the carrier claims of negligent entrustment. Straight up negligence for the rear end hit remained a question of fact, said the Southern District of Alabama. Polk v. Bang, 2021 WL 3577962

The question of broker liability for truck accidents continues to be split throughout the country. This month the Southern District of West Virginia held that a claim of negligent selection was not preempted under federal law, allowing that claim to proceed against the broker. The court did dismiss the claim for vicarious liability, but not without careful weighing of facts which could have gone either way. Gilley v. C.H. Robinson, 2021 WL 3824686

Risk Retention Groups in Louisiana are not exempt from the Louisiana Direct Action Statute according to the Middle District of Louisiana. The court denied the motion to dismiss filed by the risk retention group, concluding that the LRRA preserves Louisiana’s “traditional role in protecting the public.”, and allows the state to provide plaintiffs a direct right of action against a risk retention group. Bouie v. JDV Freight Transport, 2021 WL 3744188

When a plaintiff alleged that a motor carrier had a duty of care which was higher than recognized in Illinois law, the complaint was subject to dismissal. The court also noted that when the motor carrier concedes liability for the actions of the driver, the plaintiff cannot maintain a direct claim against the motor carrier for negligent retention or negligent supervision Pruitt v. K&B Transportation, Inc., 2021 WL 3472503

The Southern District in Illinois agreed that a plaintiff could not sue the parent entity for an accident involving the truck of a subsidiary. The alleged wrong could not be traced to the parent through the conduit of its own personnel and management and the parent was not directly a participant in the wrong complained of. FedEx Corporation was dismissed, leaving only the subsidiary which employed the driver to address the suit. Abrahams v. FedEx Ground Package System, 2021 WL 3603470

The prior criminal acts of a truck driver were determined by the Southern District of New York not to be admissible in a personal injury action against the driver. The court agreed with the motor carrier that a conviction for an unrelated theft had no probative value in determining if the driver was negligent. Diallo v. Ruan Transportation Corp., 2021 WL 3222733

The District Court in Minnesota refused to transfer an insurance coverage declaratory judgement action to California, where the loss occurred. The insurer is seeking a declaration as to the applicability of the employee exclusion when the passenger in the truck was killed in an overturn. The court concluded that there was no need to move the case to California, where the tort case was proceeding, and that it would require a simultaneous litigation to proceed in the jurisdiction where the policy was issued. Great West Casualty Company v. Terra-Com Communications Corp. 2021 WL 3661501

Can the expert testify? The Eastern District of Texas concluded that plaintiff’s expert, Larry Cole, could testify about trucking industry safety standards and deviations from those standards, including a motor carrier’s duty “to identify what traffic was doing in front, beside, and behind him,” and “to predict the possibilities of what could happen when traffic ahead of him was slowing down.” The motion to strike or limit the testimony was declined in this two truck accident case. Britton v. Noll, 2021 WL 328723

Creating new companies after the accident does not always work to protect the company assets. The District Court in New Mexico agreed that the plaintiff could amend his complaint to pursue the new trucking companies created by the owners after a loss. The shareholders of both companies could not be added because the court agreed that they have no individual liability. Always look at the highlights on the CAB Report to see what additional exposure you might be taking on when there are related entities. Gutierrez v. UniTrans, LLC, 2021 WL 3710808

Can a motor carrier avoid the impact of the federal leasing regulations, which requires that it have exclusive possession and control over the vehicle, through a contract which makes the driver an independent contractor? The Western District of Kentucky held that there were factual questions on whether the driver should be considered an employee for the purposes of vicarious liability. “Where a lease complies with the applicable regulations, there is only a rebuttable presumption of agency”. While the motor carrier was able to get summary judgment on claims of negligent hiring and retention all other claims remained in play. Gonzalez v. Point Logistics, 2021 WL 3197039

The 11th Circuit upheld summary judgment which was granted to the motor carrier by the trial court for injuries stemming from a truck accident. The court held that the plaintiff, who entered the motor carrier’s lane of traffic, was negligent, which barred recovery to the plaintiff under Alabama law. The plaintiff could not point to any subsequent negligence on the part of the defendant to avoid the impact of the contributory negligence doctrine which precluded recovery. Walker v. Ergon Trucking, Inc., 2021 WL 3666595

Plaintiff’s argument that a jury verdict against a trucker was too small, $50K in past medicals and $1K for pain and suffering, was rejected by the Court of Appeals in the First Circuit in Louisiana. The court affirmed the denial of a judgment notwithstanding the verdict, concluding that the jury had the right to consider the facts and award that small verdict. Crawford v. Shelter General Insurance Co., 2021 WL 3185342

The 90 million dollar verdict against Werner Enterprises ,for an accident in which it did not appear that the truck driver did anything wrong, continues to wind its way through the legal system. The Court of Appeals decided, on its own, to have an en banc hearing rather than proceed with the earlier panel decision. Stay tuned. This is a case to watch. Werner Enterprises v. Blake, 2021 WL 3164005

Do you want to know about the lawsuit before it is served? Apparently sometimes you do. The Northern District of Texas agreed that a fatal truck accident could be removed even when the defendant carrier had a place of business in the state, provided it was done before the defendant was served with the suit. 28 U.S.C. Section 1441(b)(2) (which prohibits removal of a state court action if it was brought in the domiciled state of the defendant) does not preclude removal if the case is removed before the defendant is served. A technicality that should be remembered. Stevens v. Kimberly Clark Corporation, 2021 WL 3232423

The defense verdict in favor of a trucking company and its driver who rear ended the plaintiff’s tractor-trailer, injuring the plaintiff, was upheld in the Superior Court of Pennsylvania. The court held that the evidence, which included a dash cam, supported the conclusion that the plaintiff suddenly and unnecessarily braked on a high-speed highway and, consequently, was mostly responsible for the accident that occurred. Dooley v. Tate, 2021 WL 3163152

The Middle District of Florida held that the plaintiff could assert claims against various defendant manufacturers for causing a defective Detroit Diesel 4.0 radar and camera systems to enter the stream of commerce, resulting in plaintiff’s death. The defendant truck driver failed to ascertain that the plaintiff’s vehicle was stopped, with hazard lights operating, before striking the vehicle and killing the plaintiff. Nesbit v. Dayi, 2021 WL 3211209

The Southern District in Ohio agreed that evidence of the employee’s incompetent act, which gave rise rise to the underlying negligence claim, was not, by itself, sufficient to support a finding that an employer had actual or constructive knowledge of the incompetence prior to the accident. The court dismissed causes of action against a trucking company for negligent hiring and retention. The court also held that the plaintiff had a contractual right to pursue subrogation for payments it made to its insured under its no fault policy. Farm Bureau General Ins Co. of Michigan v. Schneider National Carriers, 2021 WL 3288090

Plaintiff was not entitled to summary judgment on its direct negligence claim against the defendant where the defendant made a u-turn in front of plaintiff causing plaintiff to strike the defendant’s vehicle. The Eastern District in Louisiana held that the defendants had established that a reasonable jury could infer that plaintiff was partially negligent and that his negligence contributed to the collision. The motor carrier provided evidence that the plaintiff was talking on the phone just before the collision and that the placement of his phone could have obscured his view of the defendant’s truck or otherwise distracted him from the road. Marcello v. Holland 2021 WL 3401203

It did not happen timely because why? Covid is generally the answer these days. The Western District of Texas held that a motor carrier was not entitled to summary judgment when service of the complaint was not completed within the statutory time limits. Covid struck the plaintiff’s counsel’s office which resulted in a failure of service being completed. That was a good excuse. Nichols v. Robinson, 2021 WL 3410315

Sometimes the stories in the cases are astounding. The Court of Appeals in Georgia upheld summary judgment in favor of a motor carrier. The court held that the evidence was plain and indisputable that the truck driver was not acting in the course and scope of his employment with the carrier when it had terminated its relationship with him and demanded return of the truck. Instead, the driver exited the tractor-trailer eighty miles away from his intended destination and ran into traffic resulting in a multi car collision which injured the plaintiff. Blake v. Tribe Express, 2021 WL 3578045

When the motor carrier judicially admitted that the driver was in the course and scope of his employment when the accident occurred direct claims against the motor carrier could not be sustained. The court held that if the driver was found to be negligent and at fault in the accident, the motor carrier’s negligence in hiring, training and supervision would be subsumed by the driver’s negligence and fault, and the motor carrier would be held vicariously liable for the employee’s fault. Contrarily, should he not be found negligent and at fault in the accident, then no amount of negligence on the part of the motor carrier for those acts could be the cause-in-fact or legal cause of the accident that occurred. Judgment for the motor carrier on those additional claims. Martin v. Thomas 2021 WL 3523559

A motor carrier was unsuccessful in seeking judgment that the plaintiff was negligent per se when she failed to move her vehicle from the roadway after an accident. She was subsequently rear ended and killed by the defendant’s tractor trailer. While it was undisputed that the vehicle was left in the roadway, it remained a question of fact as to whether the plaintiff could have reasonably moved the vehicle. Crechale v. Carroll Fulmer Logistics Corp., 2021 WL 3612472

The Eastern District of Louisiana determined that it was likely that a Louisiana state court would not allow an independent claim of negligence against a motor carrier who accepted vicarious liability for the actions of the driver. The independent claims against the motor carrier were dismissed. Johnson v. Lopez, 2021 WL 3637777

A rear end hit did not automatically result in liability to the motor carrier. The Southern District of New York determined that there was a question of fact when the defendant truck driver claimed that the plaintiff truck driver stopped short in front of him, limiting his ability to stop the rear end collision. Off to trial it goes. Torres v. Mamadou, 2021 WL 3692906

FAAA did not require dismissal of a tort claim against a truck broker for negligent hiring of a motor carrier. The Eastern District of Pennsylvania held that the state tort law applied to all businesses and therefore was not subject to preemption, even if it had a negative financial consequence on the broker. Perez v. Penske Logistics, LLC, 2021 WL 3661017

When an individual was injured while unloading a piece of heavy equipment off the trailer, the Court of Appeals held that it arose out of the use of a vehicle (the trailer) and was therefore subject to no-fault laws in Michigan. The trailer owner was granted summary judgment. Balsamo v. Corrigan Enterprises, Inc., 2021 WL 3700353

Cargo
It is not often that we hear about an actual trial on a cargo claim. This month the Middle District of Florida issued a long opinion following a 3 day bench trial on a cargo claim for a shipment of damaged beef. The court concluded that the motor carrier was not liable for the loss to the cargo when the cardboard containers tipped over inside the trailer. The court found that the shipper had not established a prima facie case under the Carmack Amendment because there is no evidence that the delivered beef was worthless, that the loss was caused by an act of the shipper, and that mitigation efforts were not reasonable. Good case for cargo adjusters to review. Congrats to my friends JW Taylor and Kristen Johnson whose firm won this for the motor carrier. Good job guys! Scotlynn USA Divisions, Inc. v, Titan Trans Corp., 2021 WL 3704087

The Northern District in Texas agreed that the Carmack Amendment preempted state law claims against trucking companies, except for claims for conversion of the shipment of cell phones. The same was not true for the intermediate air carrier as it was not yet clear that it provided services only with the ambit of the Carmack Amendment. National Union Fire Insurance Co. v. Bacarella Transportation, 2021 WL 3372263

I am not sure if I have seen this before. A motor carrier required a boat owner to sign a full release before it shipped a wooden boat which is believed was not road worthy. The Western District of Washington agreed that the release was a limitation of liability under the Carmack Amendment and dismissed the suit. Watson v. Moger, 2021 WL 3510426

When the broker carrier contract expressly waived the provisions of the Carmack Amendment the federal court lacked jurisdiction over the claim for cargo damages. The Southern District of Illinois remanded the case back to state court. While the contract provided that the right to recovery would be based upon the Carmack principles that was not enough to defeat the waiver in the contract. Eastern Express, Inc. v. Pete Rahn Construction Company, 2021 WL 3578731

When the truck broker had no relationship with the state of California, and the shipment did not pass through its venue, the Eastern District of California agreed that the broker should be dismissed from the suit for lack of jurisdiction. Stage Nine Design, LLC v. Rock-It Cargo USA, 2021 WL 3565310

Some cargo claims go on forever and involve so many different issues. The District Court in Massachusetts resolved only some of the issues this month. After the loss of a multi-million submarine the court held that the owner of the submarine was stopped to assert damages of more than 5 million after it repeatedly represented to everyone that the value was 5 million before the shipment. Even though the shipment was destined for Australia, the court held that the one year limitation for suits under COGSA was inapplicable to a domestic shipment when an ocean bill of lading was not issued, the evidence did not support that it was a though move and the domestic bill of lading did not reference COGSA. In addition, the claims asserted under state law against the trucker were preempted under Carmack, except for the indemnity claims asserted by the broker against the motor carrier. This long decision goes on to address the many questions of fact which continue to remain on insurance coverage and limitation of liability. I expect we will be reading more about this case down the line. Woods Hole Oceanographic Institution v ATS Specialized, Inc., 2021 WL 3727202

In a fight between a broker and its customer over freight charges and a cargo loss, the Court of Appeals in Utah agreed that the customer had no right to assert a claim for the cargo loss against the broker, that claims against the broker were preempted by FAAA and that the broker was entitled to collect its unpaid fees. The broker was entitled to judgment and was also entitled to recovery of attorney’s fees under its contract with its customer. Freight Management Group, Inc. v. Chemex, Inc., 2021 WL 3779591

Worker’s Compensation
The Second District in California held that the plaintiff was not entitled to a jury trial on a jurisdictional issue in a worker’s compensation case. The court held that whether the plaintiff was entitled to pursue the trucking directly because the trucking company did not have worker’s compensation insurance was a question of law. The court found that the trucker in fact provided the required worker’s compensation coverage. Hollingsworth v. Heavy Transport, Inc., 2021 WL 316564

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