Menu

Bits & Pieces

CAB Bits & Pieces March 2024

Hello Everyone and Happy Spring!

The sunshine (at least that we are getting here in the Midwest) sure makes everyone much happier! Hopefully you too are experiencing some refreshing spring weather. The S&P is on the upswing.

Convention season is starting up again. Chad and Pam are speaking at the Mid-America Trucking Show (MATS). Stop in to hear our educational session and visit our team at our booth. More details are below.

Thank you,

Chad Krueger and Pam Jones

CAB Live Training Sessions

Tuesday, March 12th | 12p EST – Grow Your Business with SALEs – Targeted Leads Generator, Connor Harper 

Target companies within your specific appetite with over 100+ filters. Search by insurance renewals, fleet size, commodities, and many other options. 

Tuesday, March 19th | 12p EST – CAB for Agents & Brokers, Sean Gardner

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 motor carrier customers and prospects. Use CAB List™ to monitor customers 

CAB Events

MATS – Mid-America Trucking Show Booth #13008 

Join Chad & Pam on Thursday, March 21st at 1:15p for “Don’t Gamble with Fleet Safety: Secure Your Bottom Line with Data-Driven Excellence.” The presentation will be held in B104 – ProTalks Theater following the “FMCSA Registration Update and Fraud Prevention” presentation. 

To register for the webinars, sign into your CAB account. Then click live training at the top of the page to access the webinar registration.

Explore all of our previously recorded live webinar sessions in our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks

Not the first time nor the last the criminals are hitting fleets! This is the first we’ve seen the phishing attempt be focused on audits though. A recent FMCSA alert pushed notice out to motor carriers about this nefarious activity. Motor carrier representations while always vigilant, need to confirm who they communicate with and that sites really are legitimate. Insurance partners, please share this with you clients if you haven’t yet. Here’s the link to the Overdrive article on the topic as well.

CAB users can set alerts to be notified when activity on an authority changes. Follow the 6-steps in the below image to get your notifications specifically for MCS-150 changes updated.

screenshot of steps to get notifications for MCS-150 changes

Additional Resources

Please see Barclay Damon’s Transportation Annual Year in Review.  The review share developments in transportation law. This year’s publication looks at cases decided in 2023 by courts around the country and other critical occurrences.

Moseley Marcinack Law Group LLP is hosting a webinar on March 8th at 12p EST. They will be presenting on issues and hot topics surrounding the world of independent contractors in the transportation industry.

Register for Webinar

THIS MONTH WE REPORT

Trucking executives point to potential for 2024 market recovery. Trucking executives noted signs of potential freight market improvement this year… [citing] a relatively strong labor market, sustained consumer spending, cooling inflation and potential interest rate cuts are putting the U.S. on track for recovery. Read more… 

FTR’s February trucking outlook shows slow, steady growth. Active truck utilization bottomed out over the summer, Avery Vise, vice president of trucking says, and remains in line with 2019, pre-pandemic levels. “One answer is that if you can survive today,” with bottomed out rates and declining diesel prices, Vise says, “There’s no particular reason for you to go out of business.” Read more…. 

E-commerce driving job growth in transportation and warehousing. The surge in e-commerce from 0.6% of retail sales in 1996 to 15.6% today, and increased consumer demand for rapid and reliable shipping, have been a driving force for job growth in the warehouse and transportation sector.  Read more… 

The United States Treasury’s Financial Crimes Enforcement Network (FinCEN) new reporting requirement hits owner-operators, small fleets.  Since the first of this year, any newly established LLC, corporation, LLP and some other business types, including any owner-operator or small fleet who’s filed with their Secretary of State to establish the business, have 90 days to report Beneficial Ownership Information (BOI) to FinCen and the Treasury. Read more… 

Trucking authority correction accelerates. Since the start of November, net active truckload operating authorities have dropped by 9,000 — an approximately 12% increase over the same period last year, according to Carrier Details’ analysis of Federal Motor Carrier Safety Administration data. Read more.. 

Illinois Bill to Copy California Emission Regs Draws Heat. A wave of opposition is mounting in the Illinois General Assembly to a bill that would have the state follow California’s lead in adoption of strict emissions laws that would eventually prohibit sales of diesel-powered trucks in favor of zero-emission options such as electric vehicles. Read more… 

FMCSA Planning New Study on Detention Time. Federal trucking regulators are planning an in-depth research study that will collect and provide 12 months of data toward an end of helping provide strategies to mitigate driver detention time, according to the Federal Motor Carrier Safety Administration. Read more… 

March 2024 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Taylor v. Dupree, 2024 WL 388113, No. 1:23-cv-00298 (M.D. Pa. Feb. 1, 2024). In this action arising from a motor vehicle accident between two tractor-trailers, the court denied a commercial driver’s and a carrier’s motion to dismiss and motion to strike punitive damages claims. Both commercial drivers were traveling in snowy conditions at the time of the accident when the defendant driver lost control of his vehicle and became perpendicular to the highway. To avoid hitting a passenger vehicle, the plaintiff collided with the defendant driver and sustained injuries. After the plaintiff filed suit, the defendant driver and carrier moved to dismiss the punitive damages claim, arguing the allegations failed to rise to the requisite mental state warranting punitive damages. The plaintiff opposed the motion, arguing that he only had to generally aver as to the defendant’s state of mind at the pleadings stage. The court noted that it was rare to dismiss punitive damages at the pleadings stage, and because additional discovery was needed to ascertain the defendant driver’s mental state, it denied the motions.

Pagan v. Dent, 2024 WL 345485, No. 21-cv-01621 (M.D. Pa. Jan. 30, 2024). In this action arising from a motor vehicle accident, the court declined to grant a motor carrier’s motion for summary judgment on punitive damages. The carrier’s driver was operating a commercial vehicle in snowy conditions when he lost control of the vehicle, jackknifed, and landed on top of the plaintiffs’ vehicle. The driver testified that he had some training on space management, visual surroundings, ice and snow, and speed reduction in snowy conditions, but that he did not have training in extreme driving conditions. The carrier moved for summary judgment, arguing that the driver’s conduct did not warrant punitive damages because there was no subjective appreciation which was ignored. The plaintiffs opposed the motion, arguing the driver was aware of the weather and chose to drive in it despite being trained to pull over. The plaintiffs also argued the driver was traveling above the tier 1 reduced speed limit of 45 mph, and the defendants conceded this point. However, they argued the driver was not aware of the warning. The defendants also argued the driver was not fatigued nor distracted and that he had tried to stop at an earlier truck stop, which was fully occupied. The carrier also argued that it had told its driver to get to a safe place in the event of bad weather. The plaintiffs proffered expert witness testimony to argue that the driver failed to reduce his speed, which violated the CDL manual and that his failure to park violated Part 392.14 of the FMCSRs, among other arguments. The plaintiffs also argued the carrier failed to provide a road test to the driver or adequate training on driving in adverse weather conditions. The court ultimately decided that questions of fact remained, and it denied summary judgment, finding that a jury could conclude the driver operated the vehicle in a reckless manner and that the carrier failed to properly train or supervise the driver.

William Fulp Wrecker Serv., Inc. v. Miller Transfer & Rigging, Co., 2024 WL 406575, No. 1:23cv368 (M.D.N.C. Feb. 2, 2024). In this action involving a towing and cleanup dispute, the magistrate judge recommended the motor carrier’s motion for judgment on the pleadings be denied. The motor carrier was involved in an accident, and the towing company plaintiff alleged it was called to the scene by law enforcement to “contain, clean-up, and remediate the impacted areas.” The towing company alleged that it arrived on the day of the accident to minimize contamination and that it returned three days later to complete the clean-up. It invoiced the carrier $77,852.78 on Invoice 2111 for hazardous material cleanup and remediation services as well as emergency response and remediation for the work on April 7 and 10 and later filed suit against the carrier for unjust enrichment after it claimed it did not get paid. In its answer, the carrier argued that it had reached a negotiated settlement with the towing company related to a separate Invoice 2108. The carrier referenced a settlement agreement and release in which it disputed the charges of $185,377.50 related to the removal of the tractor-trailer, cargo, and storage of the same but agreed to fully settle and compromise the controversies among the terms provided in the release. The release specifically contained a mutual release provision for Invoice 2108, which listed charges of price per pound and for a super load recovery related to the towing of the vehicle. The court noted that the invoice did not detail what date the work reflected in it was performed but that it was dated April 9, one day prior to the alleged additional work on April 10. The defendant carrier moved for judgment on the pleadings, arguing that the release applied not only to Invoice 2108, but also Invoice 2111. In opposing the motion, the towing company argued the release only contemplated Invoice 2108, not Invoice 2111, while the carrier argued that it applied to any claim related to Invoice 2108, which contemplated the work outlined in Invoice 2111. In analyzing the release, the court noted that it did not include language releasing the carrier from any and all past, present, or future claims, demands, obligations, actions, or causes of action which have or might accrue but that it was specifically tailored to claims related to Invoice 2108. The court also found that the work outlined in Invoice 2111 could be considered as separate work despite arising from the same accident as Invoice 2108 and that the release was silent as to Invoice 2111. While the court stated that the release language did not wholly support nor preclude the carrier’s contention that it covered Invoice 2111, it recommended the district court deny the motion for judgment on the pleadings, allowing the case to proceed through discovery.

Thompson’s Transport, LLC v. Lisi’s Towing Serv., Inc., 2024 WL 623708, No. 7:23-cv-2385 (S.D.N.Y. Feb. 13, 2024). In this dispute between a carrier and towing company, the district court granted the carrier’s motion to dismiss the towing company’s counterclaim but allowed the towing company the opportunity to amend to add a claim under contract law. The carrier was involved in an accident which resulted in the overturning of its tractor-trailer and spill of 45,000 pounds of frozen French fries. The towing company was called to the scene to assist with the tow and cleanup. The carrier later sued the towing company, arguing it had damaged its trailer and refrigerator unit, failed to salvage French fries, and improperly placed a lien on the vehicle based on excessive fees of $150,000. The towing company counterclaimed, asserting its lien was proper and that the carrier owed more than $130,000 for “fair and reasonable costs of its services and storage fees.” The carrier moved to dismiss the counterclaim, arguing that the New York Lien Law did not provide for such relief as alleged by the towing company, but instead any claim was only provided for by contract law. The court agreed, finding that the law did not provide an independent claim for payment, only a right against the property over which the lien was exerted. However, the court noted that the towing company might be able to assert contract or quasi-contract claims against the carrier, so it granted the tow company leave to amend its complaint to add such a claim.

Hernandez v. Ventura Sys LLC, 2024 WL 583500, No. 3:23-cv-2244 (N.D. Tex. Feb. 13, 2024). In this action involving a fatal accident, the court granted a motor carrier’s motion to dismiss plaintiff’s direct claims for negligence, negligent entrustment, negligent hiring, negligent training, negligent supervision, negligent retention, and gross negligence while allowing the plaintiffs the opportunity to replead. The carrier’s driver was transporting goods for the carrier and parked the tractor-trailer on the shoulder of the interstate to inspect a mechanical failure. The plaintiff’s decedent then veered out of his lane and collided with the tractor-trailer, dying as a result of the collision. Plaintiffs then sued under the aforementioned causes of action. In analyzing the negligent entrustment claim, the court found the plaintiffs had failed to plausibly allege that the driver was unlicensed, incompetent, or reckless at the time of entrustment. The court found that the plaintiffs did not rebut that the driver was properly licensed. As to negligent hiring and retention claims, the court found that the complaint was silent as to how the carrier was inadequate in its investigation of the driver or that said investigation revealed unfitness to drive. The court specifically found that the plaintiffs had not pled that a background check by a reasonable employer would have revealed anything to prevent an employer from hiring the driver or maintaining the driver in the position of driver. As for negligent training, the court found that the plaintiffs failed to allege how the carrier had not trained the driver to drive in a safe and prudent manner or inspect the vehicle. Similarly, the court found that, assuming the carrier had a duty to supervise the driver, there were no allegations to support how the carrier was negligent in its supervision of the driver because nothing in the complaint stated how any alleged failure to supervise constituted a breach of the carrier’s duty or proximately caused the accident. Finally, the court found that the plaintiffs had failed to allege negligence and gross negligence based upon the factual allegations in the complaint. However, the court allowed the plaintiffs 28 days to file an amended complaint setting forth more detailed factual allegations.

Daniels v. A.E.N. Asphalt, Inc., 2024 WL 445773, No. KNL-CV23-6060505-8 (Conn. Super. Ct. Jan. 30, 2024). In this negligence action arising from a motor vehicle accident, the court granted a motion to strike a cause of action for alleged violations of the Federal Motor Carrier Safety Regulations (FMCSRs). The plaintiff filed suit after a rearend collision and alleged a cause of action against the carrier for the commercial driver’s alleged violation of the FMCSRs. The carrier moved to dismiss the cause of action, arguing the FMCSRs do not create a private right of action for personal injury suits. In examining Connecticut caselaw, the court concurred, finding that the FMCSRs did not create a private right of action. The plaintiff argued that a violation of the FMCSRs would constitute evidence of negligence, but the court found the authority cited by the plaintiff distinguishable from the facts of this case.

Lengacher v. Wayne, 2024 WL 728050, No. 3:23-cv-547 (N.D. Ind. Feb. 22, 2024). In this action arising from a motor vehicle accident, the court granted in part a motor carrier’s motion to dismiss negligent hiring, supervision, and punitive damages claims. The carrier’s driver admitted he was driving 60 mph in a 40-mph zone at the time of the collision. The plaintiff asserted a punitive damages claim on the basis that the driver failed to comply with applicable laws and regulations based on his speeding and failure to keep a proper lookout. The plaintiff also sought punitive damages against the carrier, arguing it was vicariously liable for the driver’s conduct and also that it failed to comply with applicable regulations regarding the inspection, maintenance, and safe operation of its vehicles. However, the court found that the driver was not out of service at the time of the accident and that there were no allegations to support a conscious disregard on the part of the carrier that the driver was a danger to others on the road. Thus, the court granted the motion to dismiss the punitive damages claim against the carrier but converted it to a request for punitive damages under the plaintiff’s prayer for relief.

Whaley v. Amazon.com, Inc., 2024 WL 385019, No. 2:23-cv-04317 (D.S.C. Feb. 1, 2024). In this action arising from an accident between tractor trailer and a passenger vehicle, the court granted in part and denied in part the defendants’ motion to dismiss and separately denied their motion to strike. The commercial motor vehicle driver was involved in a collision with the plaintiff after allegedly turning in front of him. The driver was operating under the authority of a carrier, which had entered into an agreement with Amazon as part of its Relay Program. The plaintiff filed his complaint, alleging fourteen causes of action, predominately based in state law negligence. Amazon moved to dismiss or, in the alternative, to strike portions of the complaint regarding the Amazon Relay Program. The plaintiff opposed the motion, contending that the allegations regarding the Relay Program were necessary to demonstrate the exercise of control over the carrier and the driver, as well as to allege a claim for vicarious liability against Amazon. In a thorough analysis of the pleadings and the arguments, the court granted the motion to dismiss the claims for direct negligence against Amazon but found that the plaintiff had properly alleged sufficient control by Amazon over the driver to support an agency claim and also sufficient facts to support a vicarious liability claim. In allowing the agency claim to remain, the court noted that the Relay Program app generated invoices to pay the truck drivers, while other agency factors were factually plausible to support a claim at the pleading stage. The court also denied the motion to dismiss the negligent entrustment claim, finding that the plaintiff had alleged that the commercial driver was a poor driver and that the trucking company had entrusted its tractor to him and Amazon its trailer to him despite this knowledge. As to negligent hiring, training, retention, and supervision, the court noted that the parties did not provide direct arguments as to these claims but that it was enough to survive the motion to dismiss phase. The court did grant the motion as to negligent maintenance, finding that there was no allegation of a duty imposed on Amazon to inspect the tractor and no allegation of any defect in the trailer. As to the negligent selection of a subcontractor claim against Amazon, the court found the allegations sufficient to survive a motion to dismiss. The court also allowed joint venture/enterprise liability claims to survive, finding that the allegations, taken as true, were sufficient to support such claims. The court also denied Amazon’s motion to strike the allegations of the complaint regarding the relay program, as the court found the requirements of the program could potentially be relevant to support the plaintiff’s causes of action.

BROKER

Mays v. Uber Freight, LLC, 2024 WL 332917, No. 5:23-cv-00073 (W.D.N.C. Jan. 29, 2024). In this broker liability action involving a fatal accident, the District Court granted a motion to dismiss negligence, negligent hiring, training, supervision, retention, and wrongful death claims asserted against a freight broker. Following the accident with a carrier selected by the broker, the tort plaintiffs asserted the aforementioned causes of action against the broker. In moving to dismiss, Uber Freight argued that, as a broker, FAAAA preemption applied to all the plaintiffs’ causes of action asserted against it. The court agreed, finding that the allegations of the plaintiffs were related to Uber Freight’s rates, prices, or services so as to be preempted under FAAAA. In so ruling, the court looked to the Ye and Aspen decisions of the Seventh and Eleventh Circuits, respectively, to find that all claims, including the basic negligence claims were preempted. The court also found that a vicarious liability claim could not be established against Uber Freight as the mere broker to the transaction, finding that “the relationship between brokers and motor vehicle safety will [generally] be indirect, at most.” The court also found that the plaintiffs’ allegations of control by Uber Freight over the carrier did not have factual support, and it, therefore, dismissed all of the plaintiffs’ claims.

Golibart v. Complete Oilfield Servs., LLC, 2024 WL 379909, No. 1:24-cv-00020 (W.D. Tex. Jan. 31, 2024). In this broker liability action, the federal magistrate recommended that the matter be remanded back to state court after the defendants removed the case to federal court based solely upon FAAAA preemption. Plaintiffs filed suit against a broker and carrier after the carrier was involved in a collision that killed a cyclist. The broker removed the case to federal court, arguing that FAAAA created federal question jurisdiction. The Plaintiffs moved to remand the case back to state court, arguing the removal was not timely and that their state law claims were not completely preempted under FAAAA. The broker argued it had timely removed the case, that the Plaintiffs were attempting to create a new standard of care to apply to freight brokers, and that FAAAA gave rise to federal jurisdiction. The court found that the broker had not shown that it could not have timely removed the case after receiving the original complaint, which had substantially similar allegations as the amended complaint. Thus, the court recommended remand to state court without reaching the question of whether FAAAA would have given rise to federal jurisdiction.

CARGO

Starr Indem. & Liab. Co. v. Expeditors Int’l of Wash., Inc., 2024 WL 358901, No. 2:23-cv-00621 (W.D. Wash. Jan. 31, 2024). In this cargo claim brought by a subrogated insurer of a shipper, the District Court granted a railway’s and logistics company’s motions to dismiss under the Carmack Amendment while allowing the subrogated insurer to amend its Carmack claim. The suit arose after the subrogee’s insured purchased several items of clothing to be shipped from several Asian countries to its customers in Ohio. A non-vessel owning common carrier (“NVOCC”) issued two sea waybills for the transportation of the goods in four containers to the State of Washington, and a freight forwarder would handle the transportation of the goods from Washington to Ohio. Once the goods arrived in Washington, the freight forwarder had the goods consolidated into two cargo trailers and issued two “bookings” to transport the trailers overland from Washington to Ohio. The freight forwarder contracted with a carrier to pick up the goods and physically transport them to Ohio. This carrier, Max Trans, then picked up the goods and took them to a container yard. Max Trans then subcontracted some or all of the carriage to another carrier, Delta. At the container yard, Max Trans and/or Delta erroneously believed the goods were to be transported by rail to Ohio, so one or both of them took the goods to the railway’s yard where they loaded the goods onto the railway’s trailer on flat car “TOFC.” They did so despite the shipper requesting overland carriage by truck. The train on which the goods were loaded derailed and caught fire, and the goods were destroyed. The insured shipper then submitted its claim to the Plaintiff subrogated insurer, who in turn filed suit against the railway and the carriers. The railway and Max Trans argued the Plaintiff’s claims were preempted under Carmack and COGSA. The Court agreed as to Carmack, finding that the Plaintiff agreed “in principle” that Carmack applied, despite also suggesting it did not apply due to the mistake in the shipping process. The court found that at least one of the carriers had to issue a Carmack-compliant bill of lading under the facts, and while the Plaintiff argued there was no evidence that the railway issued a bill of lading, the court noted that this did not matter, as the relevant question was whether a carrier was required to issue a bill of lading. The court also rejected the Plaintiff’s argument that its insured did not purposefully avail itself of the railway’s services, instead finding that Carmack applied to treat the several carriers as one system. The court also found that the Plaintiff failed to state facts sufficient to constitute a Carmack claim, but it allowed the Plaintiff the opportunity to amend the complaint to sufficiently allege such a claim. The court also rejected the railway’s argument for dismissal on the ground that the Plaintiff failed to provide written notice under the uniform bill of lading requirements, given that the allegations showed a bill of lading was not issued.

AXA XL Ins. Co UK Ltd. v. Exel Inc., 2024 WL 639327, No. 2:23-cv-21874 (D.N.J. Feb. 15, 2024). In this action filed by a subrogated insurer, the District Court granted in part and denied in part the Defendant logistics company’s motion to dismiss. The Defendant had received three shipments of champagne for transport from New Jersey to the consignee in Florida. Three bills of lading were issued to the logistics company’s carrier, but the carrier was involved in an accident in South Carolina while transporting the champagne. While some of the bottles of champagne were salvaged, the subrogated insurer sought reimbursement for the remainder of the loss. The Plaintiff insurer alleged that the logistics company had operated as a carrier and a broker and brought claims under the Carmack Amendment and for breach of contract. The logistics company moved to dismiss for failure to state a claim, but the court found the Plaintiff had properly alleged a Carmack claim. As for the breach of contract claim, the court found that it would not be preempted under FAAAA and further that it would not be preempted under Carmack if the logistics company operated as a broker, which the complaint alternatively alleged. The court found the plaintiff could properly plead in the alternative that the logistics company operated as a broker or a carrier. However, the court did dismiss the Plaintiff’s claim that the logistics company failed to comply with “industry guidelines and applicable law,” finding that such allegations could not form the basis of a breach of contract claim. The court also denied the Defendant’s motion to dismiss for improper venue, finding that the suit could be filed in South Carolina where the accident occurred but also in New Jersey where the cargo was shipped.

Julsonnet v. Tophills Inc., 2024 WL 583541, No. 22-10767 (D. Mass. Feb. 13, 2024). In this cargo claim action, the district court granted in part and denied in part a carrier’s motion for summary judgment. The plaintiffs hired a logistics company to arrange for the moving and storage of their belongings across the country, and the logistics company hired the defendant carrier. The plaintiffs paid a 25% deposit and alleged the carrier loaded part of their belongings, left, and never returned to load the remainder of their goods. They also alleged the carrier refused to return the goods that had been loaded. The plaintiffs sued the logistics company, the carrier, and the owners of each company under violations of the Federal Motor Carrier Safety Act, civil RICO, the FTC Act, and several other state law claims. The carrier counterclaimed, alleging the plaintiffs failed to pay it for the moving and packing services that had been done. It was alleged that when the carrier’s foreman initially arrived to pick up the goods, he demanded that the plaintiffs sign a new bill of lading before the movers began loading the truck. The plaintiffs refused, but the loading commenced. When the plaintiffs communicated that they would not pay 65% of the balance due until the truck was fully loaded, the carrier allegedly took what it had loaded, left, and never returned to load the remainder of the goods. While the plaintiffs were finally reunited with their belongings after contacting the police, they still filed suit. The carrier and its owner, the only remaining defendants, argued that the state law claims were preempted under Carmack. The plaintiffs argued Carmack did not apply because the carrier never took their goods outside the State of Massachusetts. Ultimately, the court found that some of the claims were not preempted because the plaintiffs had alleged harms apart from the loss or damage of the goods but that other claims alleging the damage or destruction of the goods were preempted. The court also denied summary judgment with respect to the Federal Motor Carrier Safety Act claim, granted summary judgment as to the carrier but not the owner for the civil RICO claim, denied it as to the breach of contract claim, granted it as to the unfair or deceptive business practice claim (as the decision to hire the carrier was for personal rather than business reasons), and denied summary judgment as to the plaintiffs misrepresentation claims.

COVERAGE

Progressive Mountain Ins. Co. v. Chen, 2024 WL 476962, No. 1:22-cv-1913 (N.D. Ga. Feb. 7, 2024). In this declaratory judgment action, the court granted summary judgment and a default judgment in favor of the insurer. Regarding the facts, the tort plaintiff/driver was an employee of the defendant carrier and had been tasked with picking up a load of fish from Arkansas and delivering it to Atlanta. On his return trip, the tort plaintiff/driver was involved in an accident when he lost control of his vehicle, crossed a median, and hit another tractor-trailer. The insurer insured the vehicle being operated by the tort plaintiff/driver, and the policy contained several exclusions and an MCS-90 Endorsement. One of the exclusions stated “insurance . . . does not apply to injury to or death of the insured’s employees while engaged in the course of their employment.” The policy also contained an exclusion for bodily injury to the insured’s employees and for injuries that would be covered under workers’ compensation. The policy also contained a UM endorsement, which read that the insurer would “pay for damages, other than punitive or exemplary damages, which an insured is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury or property damage,” and the endorsement applied when (1) an injury was sustained by an insured; (2) the injury was caused by an accident; and (3) the events leading to the injury arose “out of the ownership, maintenance, or use of an uninsured auto.” The endorsement also stated that “an ‘uninsured auto’ does not include any vehicle or equipment . . . shown on the declarations page of this policy.” The vehicle driven by the tort plaintiff/driver was listed on the declarations page. The insurer argued that the claims for coverage by the tort plaintiff/driver were barred because of the exclusionary language in the policy and the language contained in the MCS-90 Endorsement. The insurer also argued that the tort plaintiff/driver was not entitled to UM coverage because the vehicle he was driving did not meet the definition of an uninsured auto. The tort plaintiff/driver argued that enforcement of the exclusions would violate public policy. In analyzing the insurer’s claim for declaratory relief, the court viewed the uncontroverted evidence that the tort plaintiff/driver was an employee within the course and scope of his employment and that the covered auto was not an uninsured vehicle. Finding that the exclusion was unambiguous, it found that the insurer had no obligation under the policy to the tort plaintiff/driver. In analyzing the tort plaintiff/driver’s public policy argument, the court found that the employer had failed to procure requisite workers’ compensation insurance but that the employer would be personally obligated to cover the injuries. Thus, because the driver was not unprotected, the court did not invalidate the exclusions as against public policy. The court also granted default judgment against the employer, which had failed to timely answer.

Prime Ins. Co. v. Cordova, 2024 WL 513706, No. 22C-04-086, (Del. Feb. 9, 2024). In this appeal by the insurer of an interlocutory order, the Delaware Supreme Court declined to hear the interlocutory appeal.  A commercial driver was involved in an accident and struck another vehicle, injuring the occupant. The injured driver sued the commercial driver and his employer, and the Superior Court entered a default judgment after they failed to respond. Prime, the insurer of the commercial driver’s employer, insured a different vehicle under the employer’s policy, which included an MCS-90 Endorsement. Following the entry of the default judgment, Prime moved to intervene in the tort suit, but the Superior Court denied the motion because Prime was unwilling to confirm that the MCS-90 Endorsement would apply to the accident and because its application was untimely. Prime moved for an interlocutory appeal, but the Supreme Court refused the appeal, finding the application was not timely filed.

New York Marine & Gen. Ins. Co. v. ST Freight LLC, 2024 WL 343230, No. 23-C-1268 (E.D. Wis. Jan. 30, 2024). In this declaratory judgment action, the district court granted the insured’s motion to dismiss. The insured operated as a freight broker, and the insurer issued a policy contained general liability coverage, an umbrella policy, and a commercial auto policy. The insured was named as one of several defendants in a lawsuit arising from an accident in New Mexico that resulted in two fatalities. The insured sought coverage under its policy, but the insurer responded that it owed no obligations to defend or indemnify the freight broker. The insurer then filed this declaratory judgment in the Eastern District of Washington, seeking to confirm the same with respect to the New Mexico lawsuit. The freight broker filed a third-party complaint in the New Mexico action against the insurer, seeking a ruling regarding the insurer’s coverage obligations. The broker then moved to dismiss or stay this declaratory judgment action, pending the disposition of the New Mexico claim. The Wisconsin court agreed, finding that dismissal of the declaratory judgment was appropriate, given that both parties were also parties in the New Mexico action and that allowing the declaratory judgment to proceed would not serve a useful purpose but be duplicative. Thus, the court abstained from proceeding further and granted the motion to dismiss.

AmGUARD Ins. Co. v. Hansen, 2024 WL 665649, No. 1:22-cv-197 (M.D. Ala. Feb. 16, 2024). In this declaratory judgment action, the court denied several moving parties’ motion for a judgment on the pleadings. The matter stemmed from a car wreck involving a Donald Schulman Wrecking Service (“DSW”) vehicle. AmGUARD was the insurer of the DSW vehicle, and it alleged that the former DSW owner misrepresented to law enforcement that he was the driver of the vehicle when it was in fact his son. The insurer also alleged that the DSW owner misrepresented on his policy application that there would be no other drivers for the business apart from himself, despite knowing that his son would drive and the policy requiring DSW to report all possible drivers to the insurer for approval prior to hiring as a driver. The tort claimants, who had been named as defendants in the declaratory judgment action, moved for judgment on the pleadings.  It appeared undisputed that the coverage form preconditioned coverage on DSW’s compliance with its duties to provide notice of how, when and where the accident occurred and to assist with investigation of the claim. The coverage form also contained a clause stating it was void in the event that there was any fraud or misrepresentations of material fact on the part of the insured. It also contained an MCS-90 endorsement. The insurer sought a declaration that the policy was void based on DSW’s alleged misrepresentations, that it had no obligations to provide coverage due to DSW’s failure to cooperate with the investigation, and that it had no duty under the MCS-90 Endorsement because the vehicle was not engaged in interstate commerce at the time of the accident and that the endorsement was void due to the alleged misrepresentations. The court found that the pleadings did not allege that the insurer knew that the son was driving vehicles when it issued the policy and denied the individuals’ motion on those grounds. With respect to the notice requirement, the individuals claimed that the lack of notice was immaterial because the son would have been a permissive user, but the court disagreed, finding that whether the son was covered was a separate issue from whether the insured complied with the notice obligations. The court was also unpersuaded by the individuals’ argument that the insurer eventually found out who was operating the vehicle, thus negating the notice requirement, instead finding that the insured could still have failed to meet its obligations under the policy. The court also rejected the individuals’ argument that the misrepresentation was not prejudicial to the insurer’s defense of the case, finding that a failure to cooperate by the insured relieves an insurer of its duty to cover and defend. Finally, the court withheld judgment on the MCS-90 issue, finding that there were questions of fact with respect to whether the vehicle was engaged in interstate commerce as well as the vehicle’s weight.

Brad Hall & Assocs., Inc. v. RSUI Indem. Co., 2024 WL 325278, No. 2:23-cv-00213 (D. Nev. Jan. 26, 2024). In this declaratory judgment action, the court granted in part dueling motions for summary judgment between an insured and its excess insurer. The insured’s driver was involved in an accident that resulted in property damage, bodily injuries, and two separate fuel spills. The Nevada DOT dispatched an emergency response contractor to perform pollution mitigation work. The insured also hired its own contractor to perform pollution mitigation efforts, and it claimed it did so prior to hearing from the Nevada DOT. The insured had three policies relevant to the accident, one which provided coverage for pollution, another which provided business automobile coverage, and the excess policy which applied to the business auto policy. The first level insurer on the business auto policy paid for the property damage, personal injuries, and remediation costs for the fuel spilled from the tractor, but not for the fuel spilled from the trailers, and its policy limit was exhausted. The excess insurer accepted coverage for the injuries and property damage, but not for the environmental remediation, arguing the primary insurer’s policy did not provide coverage for the trailer spills and that the excess policy had a pollution exclusion. The insured sued the excess insurer for breach of contract, bad faith, unfair claims practices, and for a declaratory judgment. The excess insurer also filed for declaratory relief. In examining the policy, the court found that the excess insurer would “pay those sums in excess of the [primary insurer’s policy] that [the insured] become[s] legally obligated to pay as damages because of injury to which this insurance applies, providing that [the primary insurer’s policy] also applies, or would apply but for the exhaustion of its applicable Limits of Insurance.” The excess policy was subject to the same terms as the primary policy, except for any provisions to the contrary. Turning to the primary policy, the court found there was no question the tractor was a covered auto and that it covered pollution costs or expenses. The court also found the policy contained a valid exclusion for fuel spill from the trailers. However, the court found that the excess policy would apply to cover fuel spilled from the tractor if the costs for the cleanup arose from a statutory or regulatory obligation but not if the costs arose from a request, demand, or order to clean up based on the plain unambiguous language of the policy.

Am. Sentinel Ins. Co. v. Nat’l Fire & Marine Ins. Co., 2024 WL 545708, No. 23-55175 (9th Cir. Feb. 12, 2024). In this appeal from a grant of summary judgment and denial of a motion for judgment on the pleadings, the Ninth Circuit affirmed the district court. The insured had leased a trailer to a separate carrier, which attached the trailer to its tractor. The court found the trailer to be a covered auto under the policy, as it defined an insured as “the owner or anyone else from whom you hire or borrow a covered auto that is a trailer while the trailer is connected to another covered auto that is a power unit.” The question for the court was whether any exceptions applied to the definition of an insured. National contended that the Truckers Exception, which provides that a trucker is not an insured “if the trucker is not insured for hired autos under an auto liability insurance form that insures on a primary basis the owners of the autos . . . while the autos are being used exclusively in the trucker’s business and pursuant to operating rights granted to the trucker by a public authority.” However, the court found the exception did not apply, as it covered only a loan or lease by the separate carrier to another trucker. The court also found the exception did not apply because the initial carrier had requisite reciprocal hired auto coverage. Thus, the court affirmed the lower court’s ruling.

WORKERS COMPENSATION

No cases of note to report this month.

CAB Bits & Pieces February 2024

Hello All,  

What weather anomalies we’ve seen of late! Hope you are safe, dry, and minimally affected.

It’s month 2 of 2024 and crazy schedules are already underway. We here at CAB along with the rest of our sister companies and parent entity have been working furiously and the change has come to fruition. Perhaps you have seen the news already. CAB, Central Analysis Bureau, is now CAB by Fusable. However, in a strategic separation, CAB and other Randall Reilly data and media entities have transitioned over to our new company, Fusable. The Talent division remains identified under the Randall Reilly name.

Our system, service, and people remain unchanged. We are still here to help you “Make Better Decisions.” The News section below includes the official press release. Feel free to check out our new Fusable website or reach out to your rep with any questions. Common question: invoices remain the same.  

Thank you,

Chad Krueger and Pam Jones

CAB Live Training Sessions

Tuesday, February 13th | 12p EST – CAB for Underwriting

Sean Gardner will review our platform from an underwriter’s standpoint. He’ll share tips on how the system supports the decision makers role of the fleet’s exposure.

Tuesday, February 20th | 12p EST – How to Update Motor Carrier Data

Mike Sevret will cover the steps to update motor carrier data including company names, power units, DataQs, and much more! 

To register for the webinars, sign into your CAB account. Then click live training at the top of the page to access the webinar registration.

Explore all of our previously recorded live webinar sessions in our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks

The necessary and important government MFA, multi-factor authentication, came out and CAB’s solution allows our users to continue to access their clients’ government details. The government expanded the use of the login.gov application for accessing the FMCSA’s Portal.

Pre-FMCSA’s MFA implementation, users could access the motor carrier’s SMS through the CSA site with the fleet’s PIN. This is no longer an option. The user now needs to access data through the FMCSA portal (see image below). Many CAB clients only utilize the CAB platform to see motor carrier activity, and this remains the same. Your clients will need to set up their login.gov and FMCSA portal correctly so that CAB should be able to access it. 

Our amazing development team created a solution that meets FMCSA’s security requirements and continues to allow our users access to driver data. In order for CAB to continue to integrate driver data, users need to be able to access the FMCSA data through the motor carrier’s FMCSA Portal account.In short, the motor carrier needs to be able access this site.

Refer to the January 9th webinar titled “New Enhancements – Changes to FMCSA Portal Login.gov” where we covered our solution for the MFA enhancement.  

screenshot of FMCSA portal

THIS MONTH WE REPORT

Randall Reilly Launches New Business, Fusable, in Strategic Separation from Talent Acquisition Business. Randall Reilly LLC is strategically separating its talent acquisition business and its industrial data business with its accompanying services. The talent acquisition side will be doing business as Randall Reilly, while the data business is launching as a new brand, doing business as Fusable. The move positions Fusable, with its best-in-class data products such as EDA, Central Analysis Bureau, EquipmentWatch, Iron Solutions, RigDig BI Price Digests and Fusable Digital, to leverage data-driven solutions for industrial sectors, fostering its growth as a standalone entity. Fusable will also retain the media brands such as Commercial Carrier Journal (CCJ), Overdrive, and Equipment World, renowned for their industry expertise and thought leadership. Read more…. 

Freight cycle poised for new stage in ’24: ACT Research. The nation’s freight cycle fundamentals will improve in 2024, according to the latest release of the Freight Forecast, U.S. Rate and Volume OUTLOOK report. Freight demand is below trend, but starting to recover, as post-pandemic effects fade, both real disposable incomes and retail sales are accelerating, and disruptions in ocean shipping are likely catalyzing the end of the 18-month destock. Read more… 

Bill Introduced to Keep CFPB Out of State Insurance Regulation: The Business of Insurance Regulatory Reform Act of 2024 from senators Tim Scott, R-S.C., and Joe Manchin, D-W.V., was referred to the U.S. Senate’s Committee on Banking, Housing, and Urban Affairs to make sure the Consumer Financial Protection Bureau (CFPB) “does not overstep their statutory authority.” Read more… 

New Rules on Independent Contractors Could Affect Trucking’s Owner-Operator Model: Is that driver an employee or an owner-operator? Complex new rules from the U.S. Department of Labor set out a multi-factor approach to determining when a worker is an independent contractor.The department has adopted a “totality of the circumstances” analysis, so no single factor should make or break an IC determination, and additional factors may be considered. Read more… 

FMCSA Weighs Carrier Fitness Determination Rewrite: The Federal Motor Carrier Safety Administration is reviewing six research papers as it weighs revision of its motor carrier safety fitness determination rules, the  agency said. “As FMCSA pursues the development of a new methodology to determine when a motor carrier is unfit to operate, the agency must avoid relying on the Compliance, Safety, Accountability and Safety Measurement System programs,” the Owner-Operator Independent Drivers Association wrote. Read more… 

FMCSA Administrator Robin Hutcheson to resign: Nation’s top truck safety regulator, Robin Hutcheson, will step down Jan. 26, according to DOT. Sue Lawless, FMCSA’s assistant administrator, will head the agency in an acting administrator role after Hutcheson’s departure. Lawless also serves as the agency’s executive director and chief safety officer. Read more… 

February 2024 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Davenport v. Bonini, 2024 WL 69062, No. 1:22-CV-469 (E.D. Tex. Jan. 4, 2024). In this personal injury action, the court granted in part and denied in part a motion for summary judgment by the CMV driver and motor carrier. The plaintiff filed suit against a trucking company and its driver following a collision with a tractor trailer. The plaintiff brought a negligence claim against the driver and negligent hiring, training, entrustment, supervision, retention, and monitoring claims against the company.  It does not appear the plaintiff maintained a vicarious liability-style claim against the company premised upon the alleged negligence of the driver.  The driver and company alleged that unknown motorists caused the collision and later moved for summary judgment, arguing that the plaintiff could not present any admissible evidence to support her claims. The plaintiff did not specifically respond the motion of the company seeking dismissal of the negligent hiring, training, entrustment, supervision, retention, and monitoring claims, and accordingly the court deemed those claims against the company abandoned and granted summary judgment in favor of the company.  With respect to the negligence claim against the driver, however, the court found the driver’s testimony, specifically that he had potentially allowed himself to become boxed in by other vehicles and possibly not slowed down at the time of the collision, could possibly support a jury conclusion the driver was driving negligently at the time of the collision and was a proximate cause of the plaintiff’s injuries. Accordingly, the driver’s summary judgment motion was denied.   

Dong v. Cruz-Marte, 2024 WL 117238, No. 2023-02016 (N.Y. App. Div. Jan. 11, 2024). In this personal injury action stemming from a bicycle v. tractor-trailer collision in which the cyclist was killed, the New York appellate court affirmed the lower court’s denial of the defendants’ motion for summary judgment. The plaintiff’s decedent was killed when he rode an electric bicycle around a double-parked vehicle and was struck by a tractor-trailer. The lower court denied the trucking company and driver’s motion for summary judgment, as the driver’s testimony indicated that he did not know how close the bicycle was to his truck before impact and that he did not adjust his operation of the vehicle despite seeing the cyclist three or four car lengths ahead of him before impact. As for the company, the court found that they did not present any evidence to overcome a potential vicarious liability claim. Thus, the denial of summary judgment was affirmed.

Hockaday v. Hessel, 2024 WL 117266, No. 2023-01642 (N.Y. App. Div. Jan. 11, 2024). In this personal injury action stemming from a tractor-trailer v. a wheelchair/motorized scooter, the New York appellate court affirmed the lower court’s grant of partial summary judgment to the plaintiff as to liability and striking of the defendants’ affirmative defenses of culpable conduct and comparative fault. The court found that the plaintiff made a prima facie showing as to her entitlement of judgment as to liability.  While the court acknowledged there was some conflicting evidence regarding whether the plaintiff was within the crosswalk at the time of the accident,  it nevertheless found that, regardless of this evidence, there was enough evidence to support the truck driver’s failure to exercise due care to avoid colliding with pedestrians.

Guthrie v. Monteagudo, 2024 WL 264075, No. 22-1610 (W.D. Pa. Jan. 24, 2024). In this personal injury action arising from a collision between a passenger vehicle and tractor-trailer, the court awarded sanctions against a trucking company following its failure to cooperate in discovery. The plaintiff sued the truck driver and the trucking company following the accident and, thereafter, propounded discovery upon both. In the court’s view, the defendants were not forthcoming in providing responses to the plaintiff’s discovery requests, and defense counsel was only able to produce limited documentation from the defendants’ insurer, as it could not locate or obtain the cooperation of the driver or trucking company. Following a continued failure to produce information or appear for depositions, the plaintiff filed a motion for sanctions. The court, while noting defense counsel’s continued efforts to try to locate the defendants and obtain their cooperation, it awarded the following as sanctions: (1) all factual averments asserted against the motor carrier in the Complaint were accepted as true, including for purposes of trial; (2) at the trial of this case, the jury will be instructed that it must presume that GPS data and dashcam video from the tractor-trailer, along with the driver’s employment and driver qualification files as well as driver logs, were unfavorable to the motor carrier.

Finaldi v. Knight, 2024 WL 26712, No. A-0315-22 (N.J. Super. Ct. App. Div. Jan. 3, 2024). In this personal injury action, the New Jersey appellate court affirmed the lower court’s grant of summary judgment in favor of a Delivery Service Provider, Cornucopia Logistics, and Amazon Logistics, Inc./Amazon Fulfillment Services, Inc. (collectively “Amazon”).  At the time of the accident, Cornucopia had an agreement with Amazon to deliver groceries ordered through Amazon Fresh as an independent contractor.  Per the terms of the Agreement, Cornucopia had exclusive responsibility for its personnel and exclusive control over its policies relating to wages, hours, working conditions, and other employment conditions.  Cornucopia Delivery vans were leased to Cornucopia by EAN Holdings and were stored at Amazon’s facility where Cornucopia also had an office. When vans were not in use, the keys were kept in a cabinet behind a dispatch table at the office, and dispatchers were supposed to lock the cabinet after checking drivers into the facility. One of the dispatchers fell asleep while driving a Cornucopia van that he had stolen, and he ran through a red light and struck the plaintiffs. The plaintiffs sued the driver, EAN, and later Cornucopia as the dispatcher’s employer, and Amazon. Amazon moved for summary judgment as to the plaintiffs’ claims, and the plaintiffs consented to dismissal of the negligent hiring, retention, training, entrustment, and supervision claims against Amazon, as there was no evidence the driver was an Amazon employee. General negligence claims against Amazon remained in the case, however, as the trial court initially found there was enough evidence to support Amazon’s control over Cornucopia, rendering it liable for Cornucopia’s actions. The court later granted Cornucopia summary judgment on all claims, finding that the driver was not working at the time of the accident, that Cornucopia had taken reasonable precautions to prevent theft of its vans, and declining to impose liability on an employer for all senseless and unanticipated actions of employees. Following the grant of summary judgment to Cornucopia, Amazon moved for reconsideration of the denial of its motion for summary judgment, and the court agreed with Amazon, finding that, if no liability could be imposed upon Cornucopia, similarly, no liability could be imposed upon Amazon. On appeal, the appellate court agreed with the dismissal of the claims against Cornucopia and Amazon, finding that the lower court properly found the actions of the driver were unforeseeable.

BROKER

Montgomery v. Caribe Transport II, LLC, 2024 WL 129181, No. 19-CV-1300 (S.D. Ill. Jan. 11, 2024). In this follow up opinion in a case on which we previously reported in November 2023, the United States District Court for the Southern District of Illinois granted the defendants’ motion for judgment on the pleadings, dismissing the plaintiff’s claims against a broker for negligent hiring of a carrier and its driver. This ruling followed the U.S. Supreme Court’s denial of the petition for a writ of certiorari in Ye v. GloablTranz Enters., 74 F.th 453, 456 (7th Cir. 2023), meaning the Seventh Circuit’s holding that the FAAAA preempted such negligent hiring claims will stand—at least within this jurisdiction. The Court in Caribe previously granted the defendants’ motion for summary judgment, dismissing plaintiff’s vicarious liability claim, and it issued some additional procedural rulings in this instant decision, allowing the plaintiff to appeal the vicarious liability claim to the Seventh Circuit.

Carrier v. County Hall Ins. Co., 2024 WL 187709, No. 2:22-CV-00937 (W.D. La. Jan. 17, 2024). In this broker liability action, the Louisiana district court dismissed negligent hiring, training, supervision, and management claims against a freight broker, while allowing other claims to remain pending additional briefing. The action arose following a motor vehicle accident involving a passenger vehicle and a commercial vehicle operated by a driver for the carrier, TDKD. The occupants of the passenger vehicle also sued Covenant Transport, alleging vicarious liability for TDKD and its driver, agent/principal liability, and direct claims for negligent hiring, training, supervision, and management of the TDKD driver. Covenant moved for summary judgment on the ground that it was only the freight broker, that it could not be vicariously liable as it exerted no control over the carrier or its driver, that it relied on the FMCSA and Federal Regulations to select carriers, and that it played no role in hiring, selecting, dispatching, and supervising the carrier’s drivers. The court agreed that Covenant could not be liable for the driver’s actions, as it did not exert any control over him and as the plaintiff failed to provide any evidence to the contrary. Similarly, the court dismissed the negligent hiring, training, supervision, and management claims levied against Covenant related to the driver on the basis that there was no evidence of an employer-employee relationship between the two. As for the claim alleging negligent hiring of TDKD, the court also dismissed it on the basis that TDKD had active operating authority with the FMCSA and sufficient insurance at the time Covenant hired it. As for the negligent training, supervision, and management claims against Covenant as to TDKD, the court temporarily withheld a grant of summary judgment to allow the plaintiff to provide a responsive brief but indicated that it would dismiss these claims without additional proof that Covenant exercised control over TDKD as to how it selected, managed, or supervised its drivers. The court also declined to dismiss claims related to applicable insurance coverage for Covenant to allow the parties additional time to brief the issues.  Interestingly, the court’s decision made no mention of FAAAA or preemption as a defense to Covenant. 

CARGO

Int’l Cargo Loss Prevention, Inc. v. Mediterranean Shipping Co. (USA) Inc., 2024 WL 37072, No. 23-CV-1312 (S.D.N.Y. Jan. 3, 2024). In this action brought under COGSA by a subrogated insurer of a shipment of frozen shrimp transported by the defendants from India to Chicago, Illinois, the United States District Court for the Southern District of New York granted in part and denied in part the defendants’ motion to dismiss. The defendants, which were common carriers, had contracted to transport the frozen shrimp from India to Chicago, as memorialized in a Sea Waybill. The plaintiff alleged that the defendants delivered the shipment in damaged condition and brought suit under COGSA, further alleging that the defendants had breached their contractual obligations pursuant to the Sea Waybill. The defendants moved to dismiss the action, arguing it was time-barred under COGSA’s statute of limitations and on the ground that one of the defendants, MSC USA, was not a party to the Sea Waybill and could not be liable as an agent for the other defendant, MSC SA. In considering the motion to dismiss, the court rejected the argument that the claim was time-barred and determined a minor delay in the acceptance of the complaint by the clerk’s office due to a technical filing error did not void the initial filing date for purposes of considering the statute of limitations. However, the court did find that the plaintiff failed to state a claim against MSC USA, as it was merely the agent for MSC SA. In considering this argument, the court looked to the Sea Waybill and applied general common law rules of agency to its interpretation, finding that “if an agent executes a contract on behalf of its principal, and if the agent has properly disclosed its principal, then the agent is not itself a party to the contract and is not liable for claims arising out of it.” (Internal citations omitted). Instead, the court found that an agent may be held liable for a breach of contract only if the agent “clearly manifests an intent to be so bound, instead of, or in addition to, its principal.” (Internal citations omitted). Here, the court found that MSC USA’s signature on the Sea Waybill clearly stated that it was signing “as Agent on behalf of the Carrier MSC . . . SA.” The court further found that the plaintiff could not allege any facts to support MSC USA’s manifestation of intent to be bound to the Sea Waybill, and the court granted the motion to dismiss MSC USA.  The court further denied the plaintiff’s motion to file a Second Amended Complaint, finding the plaintiff had previously been afforded the opportunity to file an amended pleading in response to MSC USA’s first motion to dismiss, yet the plaintiff “failed to plead any facts to address Defendants’ argument in this regard or indicate in any way that it has facts to support such an allegation.”

HMD America, Inc. v. Q1, LLC, 2024 WL 167374, No. 23-21865 (S.D. Fla. Jan. 16, 2024). In this action involving the alleged theft of over $3 million worth of cellphones, the United States District Court for the Southern District of Florida granted a defendant logistics company’s motion to dismiss. The plaintiff, HMD, owned and stored merchandise at the defendant Q1’s warehouse in Orlando. The parties also had an agreement whereby Q1 would perform various logistics services on behalf of HMD pursuant to a written contract. Pursuant to this agreement, HMD asked Q1 to arrange and transport a shipment of twenty pallets of cellphones from the Orlando warehouse to a consignee in Indiana. Q1, in turn, “subcontracted” with a broker, World Wide Express, to arrange for the transport of the shipment, and World Wide contracted with Aldon Mega, to transport the load. Aldon Mega then “subcontracted” with another entity, RPM, which was to actually transport the load. While the shipment was picked up in Orlando, it never made it to Indiana and was apparently stolen in transit. HMD filed suit on behalf of its insurer against Q1 and Aldon Mega, alleging breach of contract and negligence-based claims against Q1. Q1 moved to dismiss on the basis of FAAAA preemption and on the basis of failure to state a claim. HMD countered, arguing FAAAA only applied to intrastate, not interstate, transportation and that it also did not apply to Q1, as it was only a shipper, not a licensed broker. The court rejected the preemption argument as to the breach of contract claim against Q1, finding that prevailing caselaw rejected preemption over such contract-based claims. However, the court did find that the negligence claim was preempted, rejecting HMD’s argument that FAAAA applied only to intrastate transportation, as it found that FAAAA had “been broadly and repeatedly applied to preempt state-law claims related to interstate transportation of property.” The court also rejected HMD’s argument that FAAAA did not apply to Q1 as the shipper, instead agreeing with Q1 that it applied as Q1 was involved in arranging for the transportation of the cargo. In revisiting the breach of contract claim on Q1’s argument that HMD failed to state a claim, the court agreed, finding that the allegations were too conclusory and vague to support a breach of contract claim under Florida law. In alleging the claim, HMD had cited to two provisions of the agreement, one labeled “Liability” and another labeled “Transport Concept.” HMD also alleged, without citing to the agreement, that Q1 “was responsible for and had the risk of loss of the subject cargo” from the moment it received the goods at its warehouse. The court found these allegations too conclusory to set forth a viable cause of action, rejecting the notion that the claim could survive simply because the cargo was stolen. Finding that HMD failed to “connect the[] dots” between the theft and the contract, and finding that HMD’s allegations had mischaracterized the contract, the court granted Q1’s motion to dismiss the breach of contract claim.

Vegas Fab & Finish v. AMG Freight LLC, 2024 WL 166759, No. 2:23-cv-01336 (D. Nev. Jan. 16, 2024). In this action involving alleged damage to a shipment of pieces of brass door inlay, the United States District Corut for the District of Nevada granted the plaintiff’s motion to remand the case to state court for further proceedings, rejecting the defendant’s argument that removal to federal court was proper on the basis of Carmack preemption. The plaintiff, VFF, contracted with AMG to ship the pieces of brass door inlay to its client in Canada. Upon delivery of the shipment, the client informed VFF that the shipment was damaged. VFF learned that AMG had apparently subcontracted with another entity, ABF, to deliver the freight, and AMG denied being responsible for the damage to the shipment. VFF then filed suit in Nevada state court, alleging breach of contract, breach of the covenant of good faith and fair dealing, and negligence against AMG. AMG then removed the action to federal court on the basis that all of VFF’s claims were preempted by the Carmack Amendment. In arguing against VFF’s motion to remand, AMG also argued that the FAAAA and ICCTA preempted VFF’s claims. The court disagreed with AMG, finding that it had failed to establish federal jurisdiction under Carmack. The court found, and the parties acknowledged, that VFF had not presented a well-pleaded federal claim in its complaint. However, in addressing AMG’s argument that Carmack still preempted the claims, it analyzed whether AMG should be characterized as a carrier or a broker. AMG argued that, accepting the allegations of the complaint as true, it had to be classified as a carrier, but VFF argued AMG should be classified as a broker, as it never alleged that AMG was a carrier in the complaint. The court found that, when looking to the four corners of the complaint, AMG could not be considered a carrier and, moreover, that AMG had not adequately supported its assertion that it must be considered a carrier. Instead, the court found that AMG, its motion to dismiss, had expressly denied that it was the carrier for VFF’s shipment. Thus, the court rejected AMG’s Carmack preemption argument. Next turning to the FAAAA and ICCTA preemption argument, the court rejected AMG’s claim that they conferred exclusive federal subject matter jurisdiction, finding instead that each was an “ordinary preemption” affirmative defense that must be considered at the state court level following remand.

Federal Ins. Co. v. Kelton Wrecker, 2024 WL 85875, No. 4:22-cv-00083 (N.D. Ala. Jan. 8, 2024). In this action between the subrogated insurer of a motor carrier and a towing company, the court denied the towing company’s motion for summary judgment. The motor carrier, carrying 40,000 pounds of carpet, ran off an Alabama highway, and the towing company was called to the scene by law enforcement, as it was a member of law enforcement’s wrecker rotation list.  The motor carrier specifically inquired of the towing company whether it had the necessary equipment to adequately perform “the recovery,” which the towing company responded that it did.  The towing company began towing the tractor-trailer back toward the highway, but in the process the trailer began falling apart. In response, the towing company unloaded half of the carpet with a track hoe. The motor carrier’s employees asserted there was no damage to the trailer before the towing company began its work and that the carpet was unlikely to be damaged in the accident, as it was packed tightly within the trailer. The motor carrier’s employees also testified that “plenty” of towing companies had equipment necessary to haul the vehicle back to the roadway without having to unload the carpet. The towing company’s employees testified the trailer was damaged in at least three places prior to their arrival and that, once they started pulling the trailer, the prior damage caused it to start falling apart, necessitating the removal of the carpet. The towing company’s employees also testified that no other wrecker would have been able to pull the trailer without unloading the carpet. Following the incident, the subrogee insurer of the motor carrier brought claims for negligence and breach of contract against the towing company. As to the negligence claim, the insurer argued the towing company was negligent in damaging the carpet while the towing company denied owing a duty to the carrier, and, even if it did owe a duty, it did not breach the duty because its conduct was reasonable. The court denied the towing company’s motion for summary judgment on this claim, finding that a reasonable jury could conclude the towing company undertook a duty to recover the trailer, that damage to the cargo was foreseeable, and that the towing company did not exercise reasonable care by attempting to remove the carpet with a pole hyster as opposed to a track hoe. As to the breach of contract claim, the court found that a reasonable jury could conclude that the motor carrier entered into an oral contract with the towing company to remove all carpet from the trailer without causing damage to the carpet and that the towing company breached the agreement by damaging the carpet. Thus, the court denied the towing company’s motion for summary judgment.

COVERAGE

Great West Cas. Co. v. Nationwide Agribusiness Ins. Co., 2024 WL 98402, No. 23 C 2178 (N.D. Ill. Jan. 9, 2024). In this coverage matter involving two insurers, the court entered a declaratory judgment, finding both insurers were excess insurers and allocating costs and liability on a pro rata basis. The matter was filed following a fatal collision between a commercial vehicle and a passenger vehicle. The commercial driver’s employer, DFS, owned the tractor and leased it to a related entity, DFT2. The trailer was owned by an unrelated entity, Conserv, and also leased to DFT2. The driver of the passenger vehicle died after the DFS driver allegedly failed to stop at a stop sign. Great West provided liability insurance to DFT2, and Nationwide provided liability insurance to Conserv. Both Great West and Nationwide agreed that, based on the language of the Nationwide policy, Nationwide’s coverage was “excess” insurance, as the covered auto, the trailer, was connected to another vehicle, the tractor, which Conserv did not own. The dispute arose as to the extent of Great West’s coverage. Under the Great West policy, which was governed under Illinois law, a “covered ‘auto’” was one “hired or borrowed by [DFT2] from another ‘motor carrier.’” Additionally, Great West provided primary coverage for a covered auto for a “written agreement between the other ‘motor carrier’ as the lessor and [DFT2] as the lessee [if the agreement] does not require the lessor to hold [DFT2] harmless, and then only while the covered ‘auto’ is used exclusively in [DFT2’s] business as a ’motor carrier’ for hire.” However, Great West’s coverage would be excess, and not primary, for “any other collectible insurance if a written agreement between the other ‘motor carrier’ as the lessor and [DFT2] as the lessee require the lessor to hold [DFT2] harmless.” Additionally, the policy provided that Great West would provide “primary insurance for any covered ‘auto’ [DFT2] own[s] and excess insurance for any covered ‘auto’ [DFT2] do[es] not own.”  First, the court determined that the tractor was a covered auto under the Great West Policy, as it was hired or borrowed by DFT2 from “another motor carrier”—DFS.  The court found the language “hired or borrowed” broad enough to encompass the leasing of the tractor. The court also rejected the argument that “borrowed” did not equate to “leased” dismissing the argument that something “borrowed” did not have to be repaid. Nationwide and the passenger vehicle driver’s estate also argued that DFS was not a “motor carrier” within the meaning of the Great West policy because it did not meet the USDOT definition of a motor carrier. The court rejected this argument as well, finding that the Great West Policy itself defined a motor carrier as “a person or organization providing transportation by ‘auto’ in the furtherance of a commercial enterprise” and that DFS met this definition. Next, the court concluded that Great West’s coverage was excess, not primary, because there was a hold harmless agreement between DFS and DFT2 within the lease between the parties. Specifically, DFS was required to “defend, indemnify, and hold [DFT2] harmless from and against any and all injuries (including death), claims . . .” The court also rejected the argument that an interchange agreement between Conserv and DFT2 constituted an “insured contract” under the Great West Policy requiring it to provide primary coverage, as any liability that DFT2 assumed under the interchange agreement would be its own liability, not another entity’s liability. Finding that both Great West and Nationwide provided excess coverage for the incident, the court next determined that Great West’s coverage was not “super excess” coverage beyond Nationwide’s, rather that both insurers provided joint excess coverage. In splitting costs, the court looked to a portion of the Great West Policy which provided that Great West’s share of coverage “is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms, policies and self-insurance covering on the same basis.” The Nationwide Policy stated exactly the same thing. Because Great West’s limit was $1 million and Nationwide’s was $2 million, the court determined the two insurers had to split costs and liability proportionately to these respective limits.

Rice v. Doe, 2024 W: 255510, App. Case No. 2021-000894 (S.C. Jan. 24, 2024).  In this appeal involving South Carolina’s “witness affidavit” requirement to file a Uninsured Motorist claim in a John Doe/ “phantom driver” situation, the Supreme Court of South Carolina held the witness affidavit is not a “condition precedent” to filing suit, and the record can later be supplemented with the affidavit following the initiation of litigation, provided the affidavit is “provided promptly upon request.”  S.C. Code 38-77-170 provides “there is no right of action or recovery under the uninsured motorist provision, unless … (2) the injury or damage was caused by physical contact with the unknown vehicle, or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle ….” In cases in which there was no “physical contact with the unknown vehicle” subsection 38-77-170(2) requires a “witness must sign an affidavit attesting to the truth of the facts of the accident . . . . .”  When the tort plaintiff initially filed suit, the witness affidavit was not attached to the Complaint and it appears had not otherwise been produced to the putative UM insurer or its counsel.  The day after the putative UM insurer filed its responsive pleading, which included a motion to dismiss for failure to comply with the requirements of 38-77-170, the tort plaintiff’s counsel produced the affidavit.  In addressing the question, the South Carolina Supreme Court focused upon the express language of the statute, noting “[t]here is no requirement in this language or otherwise that the witness affidavit be filed at the same time the action is filed.”  With the foregoing said, the court cautioned future litigants from gamesmanship with respect to the affidavit, indicating “[c]ertainly, a John Doe defendant or the relevant insurer is entitled to have the affidavit produced promptly upon request. Our courts will not countenance the use of delay in producing the affidavit as an element of strategy. If a defendant or an insurer requests the affidavit in discovery or otherwise, and if the plaintiff does not provide the affidavit promptly, the defendant or insurer may seek relief through Rule 37(a) of the Rules of Civil Procedure (motion to compel) or, if necessary, even Rule 56(c) (motion for summary judgment).” The decision also included some clarification on what constitutes a “final order” under South Carolina’s system of “rotating judges.” 

WORKERS COMPENSATION

No cases of note to report this month.

© 2024 Central Analysis Bureau