Welcome to 2023!

As we start the new year, we at CAB would like to take the opportunity to wish a Happy New Year to all. We are very blessed to be able to work with so many great organizations that work to support the transportation industry every day of the year. We look forward to a great 2023 and continuing to work closely with each organization to help reach the opportunities and goals before all of us.

As quick reminder:

• Have a question about the data? Reach out.
• Do you or your organization need training? Let us know.
• Are you looking for an additional solution? We can help.

Feel free to reach out by phone (212.244.6575) or via our contact form here.

Have a great year!

Chad Krueger

CAB Live Training Sessions

Tuesday, January 10^th, 12p EST

The topic is “The Power of Driver Data”. Sean Gardner will present on how to unlock driver information in the CAB system to improve risk assessment and provided additional value to motor carriers. Sean will cover how to unlock this valuable feature to get the most out of your CAB access.

Tuesday, January 17^th,12p EST

Chad Krueger will update one of our most popular webinars, “CAB for Underwriting.” 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 non-underwriting users find this session very informative.

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

You can explore all of our previously recorded live webinar sessions by visiting our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks: Why Does Accuracy Matter?

First, some breaking news: The week before Christmas, the FMCSA issued their Four Millionth DOT number! Bemma Transports has the honor of being issued DOT number 4,000,000. I still remember when the DOT hit 3,000,000. I wonder how different the industry will look when we get to 5,000,000. Looking forward to the journey!

Although post-Covid economic realities may have slightly cooled the issuance of new DOT numbers, almost 42,000 new DOT numbers were issued in the 4th quarter of 2022.

We all know that data matters. Data was driving decisions throughout history but even more so in the digital age we live in. In our business, data is essential, and in a world of tight profit margins and tough loss ratios, the accuracy and dependability of the data can make all the difference. We are continually provided with success stores from our users who relied on the precision and ease of use of the CAB data to make critical decisions. Very recently I was provided with an example of how CAB’s Chameleon detector, accurate scores, advanced projections, and other exclusive data aggregations allowed for a clear picture of a risk and saved the insurer from being on the policy during a nuclear verdict event.

It’s not enough to have a ‘close enough’ score. Much of the correlated risk inherent in a score is that it’s also used by the enforcement division of the FMCSA to take action. It is a data proven fact that a high ISS Score which is based on the Behavior Analysis and Safety Improvement Category scores (BASICs), results in increased inspection frequency and longer inspections which leads to delays, and correlates to higher frequency of Unsafe Driving (examples: speeding, dangerous driving, etc.) and HOS violations. All this results in a higher potential for a serious crash and increased likelihood of a nuclear verdict.

Rest assured your CAB team is working diligently to ensure you have timely, accurate, dependable data to provide the tools and resources to help you and your team “Make Better Decisions.”

THIS MONTH WE REPORT

Emergency exemptions: The Federal Motor Carrier Safety Administration is looking to amend regulations related to future emergency declarations, limiting their scope. Read more on CCJ | Read more on Overdrive

More proposed changes from the FMCSA: According to the Department of Transportation’s latest Significant Rulemaking Report, the Federal Motor Carrier Safety Administration (FMCSA) will pursue several rulemaking proposals in 2023, including speed limiters. Read more on CCJ

Independent contractor or employee? The Department of Labor’s proposal to re-define who’s who gathers more than 55,000 comments. Read more

Feeling safe next to that truck? Survey says more than half of passenger car drivers do not, but many think that technology can help change that perception. Read more

Safe Driver Week stats: Officers in Canada and the U.S. pulled over more than 35,000 commercial motor vehicles and passenger vehicles and issued 26,164 warnings and citations to commercial motor vehicle drivers and passenger vehicle drivers engaging in unsafe driving behaviors, ranging from speeding to distracted driving. Get the details

Nuclear verdicts: How spilled hot coffee 30 years ago changed the trucking industry. Freightwaves looks at the history of legal settlements and awards of over $10 million. Read more

Market Report: As demand for products to be transported rises, there have been increases year-over-year in the number of fleets reported on the US roads, number of CDL drivers per fleet, and overall mileage recorded. Read the Price Digests Market Report

The economy: Why the U.S. economy will avoid a recession, but freight will slow in 2023. Read more

January 2023 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Rosario v. Northeast Truck Rental Leasing LLC & Earl A. Moore, 2022 N.Y. Misc. LEXIS 7114, Index No. 805590 (N.Y. Sup. Ct. Oct. 3, 2022). A personal injury complaint arising out of a motor vehicle accident was dismissed against one of the defendants under the Graves Amendment. The trial court found that the sole basis for the claims against the defendant were that it owned the subject vehicle involved in the Accident. The defendant submitted an affidavit, which was not refuted, establishing it had leased the vehicle to a non-party pursuant to an agreement and the vehicle was in good working order and free of mechanical defects at the time of the lease and that under the terms of the lease/rental agreement that the lessee was responsible for all maintenance during the term of the lease.  Finding the defendant was a leasing company, the court held the Graves Amendment precluded the claims against the defendant. 

Zajdel v. Exel, Inc., 2022 U.S. Dist. LEXIS 220615, C.A. No. 2:21-cv-12026 (E.D. Mich. Dec. 7, 2022). A motor carrier and its driver were granted summary judgment in a personal injury action due to the plaintiff’s comparative negligence. In the accident, the plaintiff ran into the rear axle of the trailer as the tractor-trailer was turning left out of a parking lot. The record established the plaintiff was driving 43 mph in a 35 mph zone at the time of the Accident, she never applied the brakes, and that the plaintiff had looked at her dashboard clock for two or three seconds prior to the collision. Considering this record, the court agreed that no reasonable juror could find the plaintiff was 50% or less at fault in causing the Accident. In so ruling, the court dismissed the plaintiff’s expert’s opinion, opining that the speed limit in the area of the Accident “should have been” 45 mph. The court also noted that another vehicle, which had been traveling next to plaintiff’s vehicle, was able to stop and avoid colliding with the tractor.    

Saunders-Pinnock v. Colonial Freight Sys., 2022 Fla. App. LEXIS 8856, No. 3D21-1822 (Fla. Ct. App. Dec. 14, 2022). In a personal injury action arising from a hit-and-run, the claims against the trailer owner were dismissed.  The plaintiff was only able to get the tag number of the trailer, but never identified the motor carrier or driver that was pulling the trailer at the time of the Accident. The trailer-owner submitted evidence establishing none of its drivers or tractors were in the vicinity of the Accident. Accordingly, its only connection with the Accident was the involvement of the trailer being pulled by an unidentified motor carrier. The court held this alone was insufficient to create liability for the trailer-owner, holding a trailer—standing alone—is not a dangerous instrumentality and therefore was insufficient to give rise to a vicarious liability claim against the trailer-owner premised upon the alleged negligence of the unidentified driver. 

Wallace v. Ebaugh, 2022 U.S. Dist. LEXIS 225168, C.A. No. 2:20-cv-02062 (N.D. Ala. Dec. 14, 2022). Claims of wantonness and negligent entrustment/training/supervision were dismissed in a case involving a rear-end accident involving a tractor-trailer. The court found that the record was devoid of any evidence of neglect other than ordinary negligence and did not establish the tractor-trailer driver exhibited any conscious disregard for others’ safety. As for the negligent entrustment claim against the motor carrier, the court found the motor carrier failed to exercise that level of dominion or control over the tractor because it was subject to a lease purchase agreement with the driver. The court likewise rejected that the motor carrier allowing the driver to operate under its DOT authority would create a basis for a negligent entrustment cause of action. The court also found that the various violations on the driver’s record were insufficient to support a negligent hiring claim. However, the court rejected summary judgment on the plaintiff’s claimed damages for injuries to her lower back, finding there was sufficient evidence to submit that issue to the jury. 

Yaple v. Jakel Trucking, LLC, 2022 U.S. Dist. LEXIS 224613, C.A. No. 21-2045 (D. Kan. Dec. 13, 2022). A motor carrier was granted summary judgment on a claim for punitive damages. The motor carrier hired a driver with no prior CDL experience, but who had recently received his Class A CDL from the State of Minnesota. Several months after the hire, the driver was operating a tractor and pulling an empty trailer when a deer ran in front of him. Attempting to avoid the deer, he swerved before locking up his brakes and then jackknifing the tractor-trailer resulting in it coming to rest across the roadway. The decedent hit the trailer as it was straddling the roadway. The decedent’s estate brought claims against the motor carrier based upon the driver’s alleged negligence and claims premised upon the motor carrier’s alleged negligent hiring, entrustment, and training. The evidence established the driver had performed a pre-trip inspection prior to disembarking, certifying the tractor and trailer met all requirements. However, it appears the ABS system had generated several fault codes prior to the Accident, but there was no conclusive evidence that the driver knew or should have known of the faults.  Further, there was no evidence establishing the ABS failed or operated other than it was supposed to with respect to the Accident. Faced with this evidence, the court held the plaintiff failed to establish wantonness by the driver sufficient to support punitive damages. As for the punitive damages claim against the motor carrier, under applicable state law that claim may only be premised upon wanton conduct of the driver, and having established the driver was not wanton, this claim failed as a matter of law. The court did confirm the plaintiff could pursue compensatory damages premised upon this alleged direct negligence by the motor carrier.

Hanson v. Werner Enters., 2022 U.S. Dist. LEXIS 228808, C.A. No. 2:21-cv-00245 (E.D. Tex. Dec. 20, 2022). A motor carrier defeated a claim for negligent hiring. In so ruling, the court noted that the possession of a valid, unrestricted driver’s license is evidence of a driver’s competency absent any evidence to the contrary. The fact that the driver was a recent graduate from a truck driving school, possessed a valid CDL, and had no history of prior accidents, traffic convictions, moving violations, or criminal history was sufficient to defeat the negligent hiring claim. For the same reasons the motor carrier was entitled to summary judgment on the negligent retention and negligent entrustment claims. However, the court held there were fact issues precluding summary judgment on the negligent training and negligent supervision claims. The court further held there was no evidence of any action other than a failure-to-yield, and therefore the gross negligence claims against the driver and motor carrier were dismissed. 

BROKER

No cases of note to report.

CARGO

Grothe v. Kushnivich, 2022 Wash. App. LEXIS 2308, No. 39010-1-III (Wash. Ct. App. Dec. 6, 2022). In this action arising from a damaged Volvo that was being shipped by a motor carrier from California to Washington, the Washington appellate court affirmed the dismissal of the Volvo-owner’s negligence claim against the motor carrier but reversed the denial of the Volvo-owner’s motion to amend its complaint to allege a Carmack claim alleging loss of use damages. The Volvo-owner’s insurer had previously paid to repair the Volvo and recovered the repair costs via subrogation action against the motor carrier’s liability insurer. However, the Volvo-owner separately filed a negligence action against the motor carrier alleging loss of use damages arising out of the same Accident. The appellate court affirmed the lower court’s ruling that the Carmack Amendment preempted any state tort/negligence action, and accordingly dismissed the Volvo-owner’s complaint. However, it found the trial court should have permitted the Volvo-owner to file an amended complaint, explaining Carmack’s damages for “actual loss or injury to the property” is determined by state law and under Washington state law “loss of use” and “diminished value” are both recoverable components of damages. The court, in ruling to allow the amended complaint alleging a Carmack claim, rejected that the Volvo-owner was required to file a pre-litigation claim, explaining the motor carrier had failed to issue a bill of lading or other document establishing a claim-filing deadline. 

Addison Biological Laboratory, Inc. v. FedEx Freight, Inc., 2022 U.S. Dist. LEXIS 224146 (W.D. Mo. Dec. 13, 2022). A federal court dismissed negligence and breach of contract causes of action against an interstate motor carrier under Carmack preemption, but granted the plaintiff leave to file an amended complaint alleging a sole cause of action under the Carmack Amendment. 

Skakov v. Black Bear Moving and Storage, 2022 U.S. Dist. LEXIS 222091, C.A. No. 21-cv-11412 (D. Mass. 2022). In this lawsuit arising from lost or damaged household goods, the court held that the Carmack Amendment did not preempt a cause of action under Massachusetts’ § 93A consumer protection statute alleged against the insurer for the motor carrier. 

COVERAGE

Grubbs v. Assuranceamerica Ins. Co., 2022 U.S. Dist. LEXIS 213644, C.A. No. 2:22-cv-01024. An insurer was granted summary judgment in a personal injury action where the subject tractor-trailer was not listed on the policy.  The insurer had been sued directly under Louisiana’s direct-action statute. However, only two personal autos were listed on the declarations page to the insurance policy at the time of the accident. The policy defined “insured car” as: a.) any car described on the Declarations Page; 2.) any car you acquire to replace a car described on the Declarations Page . . . 3.) any additional car, other than a replacement car, that you acquire during the policy period, but only if we insure all cars you own and you give us notice within 30 days of the date the car is acquired by you. Under these facts, the court held there was no basis for liability/coverage by the insurer and held it was entitled to be dismissed. 

Pender v. Artisan & Truckers Cas. Co., 2022 Wisc. App. LEXIS 1101, App. No. 2021AP838 (Wisc. Ct. App. Dec. 6, 2022). The Wisconsin appellate court reversed the lower court’s grant of summary judgment in favor of a commercial auto liability insurer. The case centered on whether the insurer properly cancelled the policy and endorsements under state and federal law/regulations. The insurer had issued two separate Form E filings on the policy, both of which were rejected by the Wisconsin DOT for various reasons and thereafter “cancelled” by the insurer. It was undisputed the policy issued with a Form F endorsement attached to the policy, but that the insurer did not submit a Form K with the Wisconsin DOT when it cancelled the liability policy for nonpayment of premium, contending there was no valid filing (Form E) in place with the DOT to cancel. The trial court found the insurer attempted in “good faith” to comply with the cancellation statute and accordingly granted it summary judgment in its declaratory judgment action that the policy and endorsements were not in effect at the time of the accident. On appeal, the Court of Appeals, strictly construing the cancellation statute, found that it required the insurer to notify the Wisconsin DOT via Form K that it was cancelling the policy before the cancellation could take effect. The court rejected the cancellation of the two submitted Form Es was sufficient to meet the statutory requirement, which was specific that a Form K was required. It also found other facts issues precluded summary judgment in favor of the insurer and reversed the trial court.

Watts v. Pekin Ins., 2022 U.S. Dist. LEXIS 225463, C.A. No. 4:20-cv-01311 (M.D. Pa. Dec. 14, 2022). This insurance coverage/bad faith dispute focuses on choice of law principles when interpreting obligations under an insurance contract. The insureds purchased an automobile liability policy providing liability and underinsured motorist coverage. The policy was delivered in Indiana and the Declarations Page listed the insureds’ address as Indiana. At the time the policy was issued, the insureds resided in Indiana and the involved vehicle was located in Indiana. However, after the issuance of the policy, the insureds moved to Pennsylvania, but did not own any real estate, were not registered to vote in Pennsylvania, maintained their Indiana driver’s license, and the subject vehicle was still registered in Indiana. Prior to the Accident, the insured had notified an agent of the insurer she was planning to move to Pennsylvania. The Accident occurred in Pennsylvania. Under Indiana’s UIM law, the insurer could properly deny any UIM benefits to the plaintiffs/insureds whereas under Pennsylvania law the plaintiffs/insured would have been entitled to UIM benefits. The parties agreed that the insurance policy at least implicitly chose Indiana law as the law that governs the insurance policy. Thus, Indiana law would apply unless applying Indiana law would be contrary to Pennsylvania public policy, Pennsylvania has a materially greater interest than Indiana in determination of the particular issue, or Pennsylvania would be the applicable law absent the parties’ selection of Indiana as the choice of law. After first determining that Indiana had a strong public policy in favor of applying its insurance statutes, and that Pennsylvania had a materials greater interest in the controversy because the plaintiffs were residents of Pennsylvania at the time of the Accident, the court then turned to the third factor. Applying Pennsylvania’s choice of law principles, the court found Indiana law would apply even in the absence of the parties implicitly choosing Indiana law. It noted the policy was delivered/executed in Indiana, and that at the time of contracting the insured resided in Indiana and the vehicle was located in Indiana. The fact that the insurer was not notified the insureds had moved was largely determinative. The notice of a future intent to move provided to the insurer’s agent was insufficient. Thus, the policy’s implicit choice of Indiana law was enforceable. Applying Indiana law to the dispute, the court held the insurer rightfully rejected the insureds’ claims for UIM benefits and therefore dismissed the insureds’ breach of contract and bad faith action. 

Nat’l Liab. & Fire Ins. Co. v. Riata Cattle Co., 2022 U.S. App. LEXIS 35328, C.A. No. 21-40846 (5^th Cir. Dec. 21, 2022). The Fifth Circuit affirmed the lower court’s ruling that held a commercial auto liability insurer was not required to provide liability coverage for an action alleging personal injuries brought by an employee of the motor carrier arising from a motor vehicle accident while the employee was in the course and scope of his employment with the motor carrier. The court specifically rejected that the Form F endorsement on the policy negated the employee exclusions contained within the policy or otherwise created coverage for the employee’s alleged injuries.  The court held that “[e]mployees are not considered members of the public for purposes of Form F.” 

Hinsinger v. Conifer Ins. Co., 2022 U.S. Dist. LEXIS 228478, C.A. No. 20-14753 (D.N.J. Dec. 20, 2022). In this bad faith action arising from an insurance coverage dispute, the court agreed with the auto insurer that a tort claimant, as a third-party to the insurance contract, lacked standing to assert estoppel principles as it related to binding the insurer to coverage. However, the court found she could pursue her claim as an assignee of the insured’s rights under the policy. It then went on to hold there were sufficient factual allegations in the operative pleading to prevent dismissal of the assignee’s bad faith claims at the initial stage of the proceedings. Specifically, the pleading alleged the insurer should have been aware of the involved vehicle (that was not covered under the policy) prior to undertaking the defense under a reservation of rights by virtue of the insurer’s possession of body camera footage giving notice of the actual vehicle involved rather than the vehicle incorrectly identified in the notice of loss.  Accordingly, the court declined to dismiss the bad faith claims. 

WORKERS COMPENSATION

Kaur v. Jatt Friends, Inc., 2022 Pa. Commw. Unpub. LEXIS 519 (Pa. Commw. Dec. 1, 2022). In this workers compensation appeal, the Pennsylvania Commonwealth Court affirmed the Commission’s denial of workers compensation benefits to a decedent tractor-trailer driver. The driver had entered into an independent contractor agreement and lease agreement with a motor carrier. At the time of his death, the decedent was transporting a load of mushrooms on behalf of the motor carrier. The Commission, in ruling against benefits, noted that the decedent made various tax filings indicating he was self-employed and that the evidence adduced via testimony suggested the motor carrier did not exhibit or retain that level of control over the decedent’s work that would give rise to an employer-employee relationship. Other factors the Commission considered included: (1) that the decedent was paid by the job, load, percentage of load, or mile; (2) the decedent received no training from the motor carrier with regard to operation of the tractor-trailer; (3) there was no continuing relationship between the two; (4) the decedent could and did turn down loads; and (5) there were no set hours of work for the decedent. The appellate court rejected claimant’s attempts to rely upon a prohibition against double-brokering in the applicable shipping contract as sufficient to establish decedent as an employee of the motor carrier. The appellate court further held that under Pennsylvania’s six-factor employment test—the most important of which is the level of control over the manner of the work—there was substantial evidence to support the Commission’s finding that the decedent was an independent contractor.

On to the Holidays! 

We’ve made it through Thanksgiving and now we’re on to the Holidays! How have we landed in the last month of the year already. If the old adage is true, time flies when you’re having fun…or at least very busy!   

From the CAB team to yours, we want to wish you a Happy Holidays and a blessed New Year! 

As a quick note, due to the holiday schedule, we will only be having one webinar in December. That webinar will be on Tuesday, December 13th. More on the topic below! 

Have a great December! 

Chad Krueger

CAB Live Training Sessions – CAB for Logistics

Tuesday, December 13^th, 12p EST: Mike Sevret will provide an opportunity to learn about the plethora of tools and resources available for Logistics and Freight Brokering companies, plus how to use them to identify new opportunities such as motor carriers and shippers. You’ll also learn how to use CAB List to monitor the fleets in your stable to better understand operations, cargo, hauled lanes, and more.

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

You can explore all of our previously recorded live webinar sessions by visiting our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks: Carrier Health Cargo & Insurance Data Enhancements

Our development team has been busy the last few months working on enhancements to our CAB List and Carrier Health Resources. We’re keenly aware that specific data types are important when evaluating risk and identifying opportunities for business.   

We have enhanced Carrier Health to include buttons that will allow you to quickly skip to the section you’d like to view. Additionally, the preferences gear to the right will allow you to arrange the sections to your liking. 

As noted below, we have added two sections to Carrier Health. The first is Cargo and the second is Insurance. 

The new Cargo section allows you to view the Top 100 shippers, # of inspections and first/last used in the Group you are reviewing. Additionally, you can quickly view the Top 10 Cargo Carried.

The Insurance section allows you to quickly see the top insurers for both BIPD Primary and Excess. As you can see, one Insurance carrier has 18.8% of the primary coverage for the motor carriers in this group. Additionally, the section will let you know when the last time the motor carriers in the group changed insurers. Based on the example below, 35.5% of the motor carriers in this group have not changed primary insurance carriers in the last 6+ years.

Valuable insights can be garnered when in-depth analysis of the data is available. We at CAB strive to provide that insight wherever we can. We encourage you to use these new sections and their associated functionality to better understand your current book and work to create opportunities for your prospective customers as well.

THIS MONTH WE REPORT:

Economy: End of the year economic predictions are coming out, and there are several that point to better things for the trucking industry in 2023.

• We’ll start at the top. Three logistics experts predict that the holiday season will be smooth sailing for the trucking industry. More
• As for 2023, a mild recession may be coming, but trucking should weather it well. Chief economist for the American Trucking Association, Bob Costello, looks at 2023. More
• Michigan State University economist and trucking industry expert Jason Miller is also looking ahead to 2023, and he says that recession is not inevitable. More
• Meanwhile, pent up demand is driving fleets to expand even as a freight slowdown looms. Experts discuss the forces impacting today’s truckers. More

Safety: Making our roads safer for everyone.

• The third Sunday in November marks the World Day of Remembrance for Road Traffic Victims. This year, US Transportation Secretary Pete Buttigieg marks the occasion by touting several efforts to reduce traffic fatalities. More
• The Arkansas Trucking Association comes out against an initiative that would have legalized marijuana in the state. More. The initiative was defeated in November. 

Other:

• Federal regulators are clarifying differences between brokers, bona fide agents and dispatch services in new interim guidelines issued in mid-November by the Federal Motor Carrier Safety Administration. More
• The public perception of trucking is at an all-time high, according to a new poll by Trucking Moves America Forward. According to the poll, most Americans believe the trucking industry plays a vital role in the nation’s economy and have a “favorable impression” of trucking. More

December 2022 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Aburto v. Espy, 2022 U.S. Dist. LEXIS 192655, C.A. No. 3:20-cv-12-ECM (M.D. Ala. Oct. 21, 2022).  A defendant was granted partial summary judgment on a claim of wantonness.  The tort plaintiff was the operator of a tractor-trailer, which was struck/side-swiped by defendant’s decedent as the decedent was merging onto the interstate in foggy, rainy weather. The court noted the tractor-trailer sustained minimal damage and was able to drive away from the scene with no mechanical issues.  Explaining the high standard to sustain a wantonness claim under Alabama law, the court found the evidence presented was insufficient to establish the defendant’s decedent “acted with conscious or reckless disregard for the safety of others.”  Rather, the court held it was a case in which “a driver commits an error in judgment” which would not support a wantonness cause of action under Alabama law. 

Garcia v. S&F Logistics, 2022 U.S. Dist. LEXIS 193305, C.A. No. 5:21-cv-04062 (E.D. Pa. Oct. 24, 2022).  A Pennsylvania federal court granted default judgment on the issue of liability as a sanction where the driver and a representative of the motor carrier failed to appear for depositions and failed to supplement discovery responses, despite a court Order requiring them to do so. 

Estate of Mergl v. Lee, 2022 U.S. Dist. LEXIS 197807, C.A. No. 5:22-cv-218 (E.D.N.C. Oct. 31, 2022).  On a motion to remand, the court held FAAAA did not confer federal question jurisdiction sufficient for removal.  Insofar as the removing party had not obtained the consent of all other defendants to the removal, the court held remand was warranted. 

Ligon v. Adriance, 2022 U.S. Dist. LEXIS 196573, C.A. No. 6:22-cv-00961 (N.D. Ala. Oct. 28, 2022).  The federal court remanded the action to state court, finding the removal was not timely.  Specifically, it held the tort plaintiff’s deposition testimony, in which he testified he needed a total knee replacement and would require anti-inflammatory medication for the foreseeable future, constituted an “other paper” sufficient to giving rise to the 30-day timeframe during which to remove a case to federal court.  The defendant, having waited until after it received a $850,000 demand—approximately two months after the plaintiff’s deposition, missed its opportunity for timely removal.   

Grady v. Rothwell, 2022 U.S. Dist. LEXIS 203694, C.A. No. 4:22-cv-00428 (M.D. Pa. Nov. 8, 2022).  In this personal injury action arising out of a Virginia accident, the defendants were successful in having the action dismissed for lack of personal jurisdiction in Pennsylvania.  The court noted that the driver of the tractor-trailer was not a resident of Pennsylvania, and the motor carrier was neither incorporated nor kept its principal place of business in Pennsylvania.  The court rejected that the mere fact that the motor carrier “conducts business throughout the United States, including the Commonwealth of Pennsylvania” was not sufficient under Pennsylvania’s long-arm statute to confer personal jurisdiction.

Estate of Ross v. Eldridge, 2022 U.S. Dist. LEXIS 210302, C.A. No. 3:22-cv-660 (S.D. Miss. Nov. 21, 2022).  A Mississippi federal court refused to remand a case to state court, despite the removal occurring almost three years after suit was filed.  At the initiation of the lawsuit, the tort plaintiffs named both the motor carrier and the driver.  The driver’s residence defeated diversity and therefore prevented removal.  While the driver was named, he was never served.  On the eve of trial, during a pre-trial motions hearing, counsel for the tort plaintiffs indicated their intention to forego any claims against the driver.  The motor carrier thereafter immediately removed the matter to federal court.  The tort plaintiffs sought remand.  In addressing the motion to remand, the court first held that the mere fact that the driver had been named, though not served, was enough to prevent removal.  It explained that the citizenship of the parties who are named, not those who have been served, is determinative of whether an action is removable.  Next, the court noted that the one-year timeframe for removal under § 1446(b) did not preclude removal where there was no evidence that the tort plaintiffs ever seriously considered pursuing a claim against the driver, though it did note there was “not much evidence” of bad faith by the tort plaintiffs.  Last, the court held the motor carrier did not waive its right to remove.  As such, the case remained pending in federal court. 

BROKER

Wardingley v. Ecovyst Catalyst Techs., LLC, 2022 U.S. Dist. LEXIS 201265, C.A. No. 2:22-cv-115 (N.D. Ind. Nov. 4, 2022).  The federal court denied a freight broker’s motion to dismiss negligence causes of action alleged against it, rejecting the broker’s argument that the negligence claims were preempted by FAAAA.  Noting the disparate treatment by different courts, the court ultimately found that Congress did not intend to preempt generally applicable negligence causes of action against brokers, even though enforcement of such actions might have an impact upon the broker’s services and rates.  Going further, the court found that even if such actions fell within the scope of FAAAA preemption, the safety exception would remove a personal injury negligence action from the preemptive scope. 

Lee v. Werner Enters., Inc., 2022 U.S. Dist. LEXIS 200848, C.A. No. 3:22-cv-91 (N.D. Ohio Nov. 3, 2022).  In another case addressing the scope of FAAAA preemption, the Northern District of Ohio held that personal injury negligence causes of action against a freight broker and shipper arising out a motor vehicle accident were preempted by the FAAAA and that the safety exception did not otherwise apply to save the claims from dismissal.  Citing other recent cases from this jurisdiction, the court dismissed all the claims against the shipper and the freight broker. 

CARGO

Bereli, Inc. v. R&L Carriers, Inc., 2022 U.S. Dist. LEXIS 196684, C.A. No. 1:21-cv-22943 (S.D. Fla. Oct. 28, 2022).  In this case involving alleged damages over an interstate shipment, the shipper was granted summary judgment on whether the carrier properly limited its liability.  The shipment was a “flat rate” shipment with “full value declared.”  Citing the four-part test for a carrier to limit liability: (1) maintain a tariff within ICC guidelines; (2) give the shipper a reasonable opportunity to choose between two or more levels of liability; (3) obtain the shipper’s agreement as to the choice of liability; and (4) issue a receipt or bill of lading prior to the moving the shipment—the court held the carrier failed its obligation for a valid limitation of liability.  Specifically, a carrier representative testified that the carrier prepared the bill of lading, but its employee, failed to provide it to shipper through its “value shipment program,” which was a breach of company policy.  The same representative further testified that the carrier does not quote anything but flat rate shipments.  Faced with this evidence, the court found the carrier did not offer the shipper a choice of rates.  The court went on to hold that plaintiff established a prima facie case for Carmack liability.  The carrier was successful in getting the breach of contract claim dismissed under Carmack preemption.  With respect to the carrier’s last defense—that the shipper failed to provide proper notice—the court likewise ruled against the carrier.  First, the court found that an email sent to the carrier 11 days after the loss was sufficient to meet the claim requirements under the regulations.  It also rejected carrier’s argument that the notice being provided to one subsidiary—as opposed to the correct entity—was insufficient notice where all of the shipper’s communications were with the same entity to whom it submitted the notice of claim, despite another operating entity issuing the bill of lading and performing the transportation of the shipment.  The court also pointed out that the carrier representative could not say whether they ever notified the shipper that one entity was the subsidiary of the other. 

Freight Connections, Inc. v. Express Hound, LLC, 2022 U.S. Dist. LEXIS 196775, C.A. No. 22-cv-1668 (D.N.J. Oct. 27, 2022).  In this case arising from the total or partial loss of goods transported in interstate commerce, the defendant successfully had all state law causes of action against it dismissed.  The shipper contracted with the defendant to transport goods from New Jersey to Texas.  It appears defendant initially picked up the freight in New Jersey but thereafter contracted with another motor carrier to transport the goods to Texas.  The driver for the carrier contracted to ship the goods to Texas diverted the shipment, during which some or all of the freight was stolen.  The shipper and the defendant had entered into a shipper-broker agreement, but nevertheless the court held the defendant could be liable under Carmack as a carrier insofar it held itself out as a carrier or participated in the physical transportation of the freight during a portion of the interstate shipment.  Defendant argued the plaintiff’s sole recourse was pursuant to the Carmack Amendment and all state law causes of action—including breach of contract—were preempted.  The court agreed, dismissed the lawsuit, reserving to the shipper/plaintiff the right to file an amended complaint alleging only a Carmack claim. 

Siaci Saint Honore v. WV Maersk Kowloon, 2022 U.S. Dist. LEXIS 207436, C.A. No. 21-cv-03909 (D.N.J. Nov. 14, 2022).  This lawsuit arises from a sealed international shipment of cosmetics that was ultimately determined to be substantially short when the container was checked at its the final delivery location in the United States.  The subrogated insurer brought four claims against numerous defendants, which included a customs broker, the ocean carrier, and the motor carrier performing the domestic leg of the shipment from the US port to final destination in the United States.  The insurer alleged four counts against the defendants under the allegation that each were “carriers”: (1) breach of contract; (2) negligence; (3) breach of bailment; and (4) conversion.  It also brought claims for gross negligence, material deviation, and warehouseman liability against the motor carrier.  The ocean carrier also brought crossclaims for indemnification and contribution against the customs broker and the motor carrier.  The motor carrier moved to dismiss all of plaintiff’s claims against it—except the breach of contract claim—as well as the crossclaims by the ocean carrier, arguing they were all preempted by FAAAA.  Ultimately, the court agreed that under the broad scope of FAAAA preemption, all causes of action against the motor carrier, other than the breach of contract claim, were preempted.  The court also held as a matter of law based upon the allegations of the operative complaint that the motor carrier had not acted as a warehouseman, and thus those claims were due to be dismissed as well.  In ruling that the crossclaims were likewise preempted by FAAAA, the court rejected that the claims were based upon maritime law/COGSA.  Thus, each of the challenged causes of action were dismissed without prejudice. 

Lock Logistics, LLC v. Harun Transp., Inc., 2022 U.S. Dist. LEXIS 212386, C.A. No. 2:20-cv-136 (E.D.K.Y. Nov. 23, 2022).  In this action arising from alleged damage to “fresh flowers” being transported from Florida to Massachusetts, the court held it lacked subject matter jurisdiction and accordingly dismissed the action without prejudice.  First, the court held it lacked jurisdiction under the Carmack Amendment (under which jurisdiction the lawsuit was initially brought) because under the applicable Administrative Ruling, “flowers—growing or cut” are horticultural commodities exempt from the Carmack Amendment.  The court similarly rejected that the flowers were “manufactured” so as implicate the “non-exempt manufactured commodities” provision under § 13506(a)(6)(B).  The court then found that there was not complete diversity and the parties alleged no other basis for federal jurisdiction.  As such, the case was dismissed without prejudice. 

COVERAGE

State Farm Mutual Auto. Ins. v. Windam, 2022 WL 16627087, C.A. No. 2020-001693 (S.C. Nov. 2, 2022).  In this insurance coverage dispute, the Supreme Court of South Carolina held the applicable policy language was ambiguous, and therefore allowed stacking of underinsured motorists benefits coverage under different policies.  The tort plaintiff was injured while operating a rental vehicle that was a temporary substitute auto for her personal vehicle.  She attempted to stack coverages from her policies on other “at home” vehicles.  South Carolina’s statutory stacking procedure allows Class I insureds—those that have a vehicle involved in the accident—to stack coverage, whereas Class II insureds—those who have no vehicle involved in the accident—cannot stack coverages.  The insurer argued that Class I status could not extend to operators of rental vehicles because they are non-owners of vehicles involved in the accident.  The court rejected this argument, first noting that “insured’s vehicle” means something less than ownership.  Then, turning to the specific definitions of “non-owned car”, “temporary substitute auto” and “your car” provided under the policy, the court noted inconsistencies in how the policy defined “non-owned” and accordingly found ambiguity.  As such, it rejected the insurer’s argument that all temporary substitute autos must be treated as non-owned autos for purposes of UIM coverage.

Farid v. Gaskell, 2022 Ga. App. LEXIS 517, C.A. No. A22A0899 (Ga. Ct. App. Nov. 1, 2022).  Where a tort plaintiff settled his claim against the motor carrier and the motor carrier’s driver in exchange for a payment under the MCS 90, but for less than the full surety obligation available under the MCS 90, he was held to be precluded from pursuing uninsured/underinsured benefits from his personal policy.  The court rejected the tort plaintiff’s argument that the payment under the MCS 90 reflected a surety obligation and therefore did not constitute “a liability insurance obligation” such that the tractor should be deemed uninsured for purposes of application of his own UM coverage.  Specifically, the court noted the release included a release of any obligations under either the commercial policy or the MCS 90 endorsement. 

Progressive Express Ins. Co. v. Tate Transp. Corp., 2022 U.S. Dist. LEXIS 208183, C.A. No. 2:21-cv-198 (M.D. Fla. Nov. 16, 2022).  A non-trucking liability insurer was denied summary judgment in a declaratory judgment action arising from a dump truck on bicycle accident.  Despite the seemingly unrefuted fact that the dump truck was being used to transport property (i.e., dirt) at the time of the accident, the court held the NTL insurer still had a duty to defend because the operative complaint alleged causes of action premised upon alleged negligence beyond the trip in question—specifically, the complaint alleged negligent selection of sub-contractors other than in relation to the accident, and negligent brokering.  As such, the court held these allegations fell outside of the scope of the trucking use exclusion and therefore the NTL insurer had a duty to defend against them.  The court refused to address any duty to indemnify at this stage of the proceedings. 

Progressive Cnty. Mut. Ins. Co. v. Caltzonsing, 2022 Tex. App. 8484, 13-21-00209 (Tex. Ct. App. Nov. 17, 2022).  This coverage action arises from a motor vehicle accident in which the tort plaintiff was driving his employer’s vehicle when he was struck a vehicle owned by Enterprise Rent-A-Car.  The employee recovered from the at-fault tortfeasor’s personal insurance policy, but subsequently pursued UIM benefits through the employer’s policy and his own personal policy.  The employer’s policy defined “uninsured vehicle” as excluding any vehicle owned or operated by a self-insurer.  The employer’s insurer argued that Enterprise Rent-A-Car was self-insured, thereby triggering the application of the exclusion to UIM coverage.  Finding that the Graves Amendment largely shifted away from Enterprise any possibility liability in connection with an accident involving its owned vehicles, the court held it was not “self-insured” for purposes of the exclusion.  The court also held that applying the exclusion under such circumstances would run afoul of Texas public policy.

WORKERS COMPENSATION

Padgett v. Cast & Crew Entm’t Servs., 2022 S.C. App. LEXIS 114, Op. No. 5948 (S.C. Ct. App. Oct. 26, 2022).  In this workers’ compensation appeal, the appellate court affirmed the award of workers’ compensation benefits.  The claimant had previously worked as a truck driver for Cast & Crew before he sustained a compensable injury by accident.  Cast & Crew settled the claim and the claimant executed a release and settlement agreement certifying his employment was terminated and he would not seek future employment with the company.  Despite this, six years later the claimant began working “through Cast and Crew” as a driver for another company, with his assignment to the company being set through his membership in the Teamsters union, which assigns drivers to various film productions.  While in this role, the claimant sustained another work injury.  Cast & Crew argued, with respect to the claim for workers’ compensation benefits, that the claimant was not its employee because the prior settlement agreement precluded the employer/employee relationship.  The Commission rejected this argument and further rejected Cast & Crew’s argument that the claimant misrepresented his identity when re-applying, noting that the claimant had provided copies of his driver’s license and social security card in connection with the same; and even if so, there was no causal connection between any such misrepresentation and the work injury.    

Fulfer v. Sorrento Lactalis, Inc., 2022 Ida. LEXIS 134, Dkt. No. 48853 (Id. Nov. 1, 2022).  A truck driver’s premises liability and negligence lawsuit against the facility where he was making a delivery were held to be subject to Idaho’s worker’s compensation exclusivity rule on the basis the premises owner was a statutory employer of the truck driver.  Nevertheless, the court likewise held the statutory employer was also subject to the exception to the rule—which permitted tort lawsuits in limited situations such as conscious disregard by the employer of a known hazardous situation.  At the motion to dismiss stage, the court held it was improper to dismiss based upon the possible application of the exception to the rule.