We hope everyone had a great Halloween!

We want to thank everyone that took the time to meet up with Mike Sevret and myself at the MCIEF annual meeting in Orlando earlier this month. We love seeing everyone in person and we appreciate all the great feedback. Our team constantly strives to provide the best tools and resources in the industry, and we could not do it without you! 

A quick shout out to the winner of the MCIEF iPad giveaway, Gerren Mardis of Auto Owners. We hope you enjoy it! Thank you to everyone who touched base with us and provided your business card to be included in the drawing.

We have a couple of great webinar sessions this month. On November 15^th, Jean Gardner will make a special guest appearance to discuss specific inland marine exposures. Don’t forget to register!

It’s hard to believe Thanksgiving is less than a month away and then the holidays will be in full swing. Time flies when you’re having fun!

Have a great November!

CAB Live Training Sessions

Please Note! We have transitioned our web meeting resource from Go to Webinar to Zoom. Due to this switch, we encourage you to sign into the webinar a little earlier than normal to ensure there are no connectivity issues.

Tuesday, November 8^th, 12p EST: Chad Krueger and Jay Weinberg will provide a focused webinar our unique “Scheduled Vehicle Auditor” tool. This tool is available to our Premium, Insurance Carrier Subscribers and is designed to allow users to audit scheduled policies to identify unreported usage by identifying additional vehicles that have been inspected during the term of the policy. This tool has been around a few years but was created when our users reached out needing this solution. We’ve had several users reach out regarding this feature recently, so this will be a good time to learn about its capabilities. 

Tuesday, November 15^th, 12p EST: Sean Gardner and special guest presenter Jean Gardner will present on CAB for Inland Marine. Learn how you can use CAB data across multiple Inland Marine lines of coverages. Understand how the safety operations of motor carriers & brokers, contractors, construction, crane operators, and others can impact your risk assessment during the underwriting and claims process.

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: Interesting Statistics & APIs

At CAB we are more than just the data! We keep our finger on the pulse of the industry and are constantly analyzing the data to find meaningful trends and insights to share with our users. 

Our soon to be released CAB Stats tool was built to give our users the power to visualize these data points from different angles and to answer commonly asked questions about the direction of the market, industry and safety. Here’s a preview of some of the statistics that will be made available.

Crashes per Million Miles Traveled:  

This table shows the total number of different types of federally reportable crashes, grouped by fleet size and the associated rate per million miles traveled. Crashes include those that occurred during the 12-month period prior to September 30, 2022. Only motor carriers that were active during the past 12 months are included. 

Inspection Selection System (ISS-CAB)

The first table shows the number of motor carriers with ISS-CAB Safety Scores in the Green (Pass), Yellow (Optional), and Red (Inspect) ranges, and a breakdown of how many total carriers are assigned ISS-CAB scores based on the Safety or Insufficient Data methodologies grouped by fleet size. The second table shows the same data as a percentage of the total. ISS-CAB scores are as of the snapshot date of October 12, 2022.  

THIS MONTH WE REPORT:

Technology

FMCSA intends to proceed with a motor carrier-based speed limiter rulemaking. This important topic is covered in two stories:  Land Line | CCJ 

In-cab technology isn’t enough to prevent all accidents. Multiple studies have shown that, more often than not, the passenger vehicle is at-fault in a truck-involved collision. Read more on CCJ 

The American Transportation Research Institute (ATRI) released an updated Crash Predictor Model, identifying more than 25 different violations and convictions that increased the likelihood of future crashes.Read more from ATRI 

Market & Economy

ACT Research has a new report out on the state of economics, transportation, and commercial vehicles. Fleet Equipment analyzes the good and the bad. Read more 

Fuel costs are dropping, but they are still at the top of the list of trucking industry issues, according to the American Transportation Research Institute. Read more 

The driver shortage is improving, but American Trucking Association Chief Economist Bob Costello says it is still short 78,000 drivers. Jason Cannon reports in CCJ. 

Legal

Arrests have been made in an alleged scheme related to workers’ compensation insurance fraud. Investigators say a Fresno, CA company paid out more than $5 million in employee payroll, but reported only about half. The tip came from an employee who was denied benefits. Read more 

California’s AB 5 law regarding classification of employees vs. independent contractors continues to upend the trucking industry, with no easy answers in sight. Gregory Feary, managing partner in an Indiana law firm, told session-goers at the American Trucking Association’s MCE conference that there have been no instances of prosecution yet, but that some carriers not doing things right will have targets on their backs. Read more 

Safety

An unannounced 5-day inspection initiative inspects more than 6,000 vehicles carrying hazardous materials and/or dangerous goods. Here’s the report

As electric vehicles hit the roads in greater numbers, potential battery fires bring new challenges and lessons for firefighters. CCJ reports

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

AUTO

White v. Scotty’s Constr. & Stone, LLC, 2022 U.S. Dist. LEXIS 177300, C.A. No. 1:21-cv-00161 (W.D.K.Y. Sep. 29, 2022).  In this personal injury lawsuit arising from a truck accident, the federal court remanded the case to state court, finding no federal question was presented and no complete diversity between the parties.  The court rejected that an FAAAA defense to the tort claims was sufficient to create federal question jurisdiction and FAAAA does not create complete preemption. 

Battle v. Johnny Thomas et al., 2022 U.S. Dist. LEXIS 180212, C.A. No. 1:21-cv-2332 (N.D. Ga. Aug. 18, 2022).  In this personal injury action, the motor carrier and its driver were granted summary judgment on plaintiff’s claim for punitive damages against each.  Plaintiff’s theory of punitive damages was based upon various alleged violations of the FMCSRs.  The court held the plaintiff failed to present evidence of a pattern or policy of unsafe driving and the facts of the accident did not include any aggravating circumstances (intoxication, driving too fast for conditions, distraction, violation of HOS regulations), which might otherwise support submitting punitive damages to the jury under Georgia law.  With respect to the alleged negligent hiring, training, and supervision theories against the carrier, the court noted there was no evidence to suggest that had the carrier properly conducted background/MVR checks and/or maintained a driver qualification file on the driver such would have suggested he was an unsafe driver.  To the contrary, the evidence indicated the driver had minimal moving violations.  With respect to the other alleged violations of the FMCSRs, the court found there was no evidence to suggest a causal connection between the alleged failures and the accident, and accordingly this created no basis for punitive damages.  Citing prior precedent, the court concluded “violations of FMCSRs governing motor carriers — standing on their own – cannot be considered wanton or reckless and [are] therefore insufficient to meet the clear and convincing standard for punitive damages.” 

Muncy v. BJT Express, Inc., 2022 Ind. App. Unpub. LEXIS 1156, C.A. No. 22A-CT-310 (Ind. Ct. App. Oct. 3, 2022).  The Court of Appeals of Indiana upheld summary judgment in favor of a motor carrier.  The facts established that around 3:00 a.m. the carrier’s driver pulled onto the shoulder of an interstate after hearing rumbling sounds that he interpreted as a flat tire.  The driver activated his four-way flashers prior to entering the shoulder and kept them activated.  Within a minute of entering the shoulder, his tractor-trailer was rear-ended from behind.  The court affirmed the lower court’s determination there was no evidence to support negligence by the driver or motor carrier under these facts.  The appellate court also held the carrier had not spoliated evidence in discarding the driver’s logs because it did not anticipate litigation because the insurer of the other driver who rear-ended the tractor-trailer admitted liability and made a payment to the carrier for the damage to the tractor-trailer. 

Adams v. Javina Transp. LLC, 2022 U.S. Dist. LEXIS 185529, C.A. No. 3:22-cv-24 (E.D. Tenn. Oct. 11, 2022).  A Tennessee federal court surmised that Tennessee would “likely follow” the “majority preemption rule” and dismiss direct negligence claims against a motor carrier where the motor carrier admits vicarious liability for any negligence of its driver.  Accordingly, the direct negligence causes of action against the carrier were dismissed. 

Waters v. Express Container Servs. of Pittsburgh, 2022 Pa. Super. LEXIS 432, No. 94 WDA 2022 (Pa. Super. Ct. Oct. 18, 2022).  The plaintiff entered into an equipment lease and transportation agreement with a motor carrier (“Miller”) whereby he leased a truck tractor he owned to Miller and used it to transport loads for Miller.  The plaintiff was injured when he fell from the catwalk on the top of a tanker-trailer that he was inspecting.  The trucking terminal was owned by an entity other than Miller.  Following the Accident, the plaintiff sued Miller and others for personal injuries.  The equipment lease and transportation agreement between plaintiff and Miller contained a broad arbitration provision, requiring all controversies or claims arising out of or relating to the Agreement be arbitrated.  Miller thereafter sought to have the complaint dismissed and compel arbitration of plaintiff’s claims against Miller.  Finding that the personal injury claims fell within the scope of the Agreement, and citing strong public policy in favor of arbitration, the court dismissed the complaint against Miller. 

Pearson v. Doe, 2022 U.S. App. LEXIS 28578, No. 21-14470 (11^th Cir. Oct. 14, 2022).  The Eleventh Circuit Court of Appeals affirmed summary judgment in favor of Werner Enterprises where the plaintiffs could not affirmatively establish ownership of a tractor-trailer that allegedly struck plaintiffs while they were riding a motorcycle on I-75.  The plaintiffs and three eyewitnesses reported that the trailer bore the Dollar General logo with one witness reporting that the tractor was “dark blue” with “white writing.”  One of the plaintiffs testified he knew it was a Werner truck because he often saw Werner trucks transporting Dollar General trailers in the area of the accident.  In response, Werner submitted a declaration from its director of safety averring that all Werner trucks were equipped with electronic tracking and the electronic tracking indicated no Werner truck was in the area of the accident at the time of the accident.  The director of safety also indicated only seven Werner trucks were hauling Dollar General trailers on the day of the accident and their GPS locations established they were far away from the site of the accident at the time of the accident.  The manager for Dollar General testified that numerous motor carriers hauled Dollar General trailers.  Applying Georgia’s insignia rule, which holds “the mere presence of lettering or a logo on the side of a vehicle, without more, is insufficient to establish liability”, the court affirmed summary judgment in favor of Werner.  It explained, “it is too great an inferential leap to presume ownership or agency based merely on the visual observation of a company’s name or distinctive insignia on a vehicle.  A plaintiff must “‘point to specific evidence giving rise to a triable issue’ on whether [the company] owned the [vehicle] that [caused the accident] . . . and whether the driver of the [vehicle] was an employee or agent of [the company] and was driving the vehicle in the course and scope of his employment.” Faced with this record, the court found the plaintiffs had failed their burden and accordingly affirmed summary judgment in favor of Werner. 

BROKER

Carter v. Khayrullaev, 2022 U.S. Dist. 189000, C.A. No. 4:20-cv-00670 (E.D. Miss. Oct. 17, 2022).  In this personal injury and wrongful death action, a freight broker was granted partial summary judgment on the plaintiff’s claims.  At issue were causes of action for negligence, negligence per se, and negligent entrustment against the broker.  The broker had internal guidelines and policies for qualification of a third-party motor carrier to haul loads for the broker.  It included examination of the carrier’s safety rating and BASIC scores, with thresholds for each.  The involved carrier had a BASIC score that exceeded the broker’s internal threshold for qualification, though the broker did not disqualify the carrier.  The court first rejected the broker’s argument that the causes of action against it were preempted under FAAAA, noting Miller v. C.H. Robinson and the “safety exception.”  As for the negligent entrustment cause of action, the court noted that the broker did not directly entrust the driver with the tractor-trailer, but nevertheless could be held liable under this theory if the broker was liable for the motor carrier’s decision to entrust the tractor-trailer to the driver and the motor carrier’s entrustment decision was, in fact, negligent.  The court then addressed the requirements for establishing the negligent hiring of an independent contractor, which are like those for establishing negligent entrustment. Plaintiff must show that (i) the broker knew or should have known that the carrier it brokered the load to was incompetent to carry its load, and (ii) that this negligence proximately caused Plaintiff’s injuries.  Citing the broker’s own internal guidelines and the fact the carrier did not meet the broker’s internal guidelines, the court held there was a question of fact of whether the carrier was liable for negligent entrustment.  The court then held the broker was entitled to summary judgment on any theory premised upon joint venture/joint liability (though this appears to have been the result of an agreement by the parties to dismiss this cause).  However, the court denied summary judgment for the broker on any theory of liability premised upon the driver being an agent of the broker.  Specifically, the court found there were questions of fact as to the level of control the freight broker exerted over the driver. 

Nicholas Meat, LLC v. Pittsburgh Logistics Sys., 2022 Pa. Super. Unpub. LEXIS 2350, No. 1398 WDA 2021 (Pa. Super. Ct. Oct. 4, 2022).  In this appeal, the appellate court affirmed the trial court’s ruling in favor of a shipper on its breach of contract cause of action against the broker.  The shipper alleged the broker breached the contract provision requiring the broker to only contract with carriers having a certain level of cargo insurance.  The court held the freight broker operated as such, not a motor carrier, and accordingly Carmack did not apply to preempt the breach of contract cause of action against it because Carmack does not extend to freight broker operations. 

CARGO

Scotlynn USA Div., Inc. v. Titan Trans Corp., 2022 U.S. Dist. LEXIS 173700 (M.D. Fla. Sep. 26, 2022).  In this case, a transportation company who successfully defended itself against a breach of contract and Carmack claim sought recovery of its attorneys’ fees and costs pursuant to Florida’s fee-shifting statute allowing for recovery of fees/costs to the prevailing party in a contract action, provided the contract provides for reciprocal recovery of fees/costs to the prevailing party.  The transportation company successfully defeated the breach of contract cause of action, with the court agreeing it was preempted by the Carmack Amendment.  It then prevailed on the Carmack claim following a bench trial on the basis that the plaintiff failed to make a prima facie showing of entitlement to damages under the Carmack Amendment and even if it did, the carrier established shipper negligence and that the carrier was free from negligence.  The court partially granted the request, holding that the carrier was entitled to its fees and costs incurred in defending itself against the breach of contract action, but not with respect to the defense of the Carmack claim.  In particular, the court found that even had the plaintiff/claimant prevailed on the Carmack claim, it would not have been entitled to attorneys’ fees under Carmack and therefore the reciprocal requirement for application of Florida’s fee-shifting statute was absent.  Thus, the court denied the carrier’s request for recovery of fees/costs incurred in defending the Carmack claim.  In so holding, the court rejected the plaintiff/claimant’s argument that the Florida fee-shifting statute was preempted by or otherwise ran afoul of FAAAA or Carmack.   

Starr Indem. & Liab. Co. a/s/o Cessna Aircraft Co. v. YRC, Inc., 2022 U.S. Dist. LEXIS 178051, C.A. No. 15-cv-6902 (N.D. Ill. Sep. 29, 2022).  In this case arising from damage to two jet engines resulting in repair costs of approximately $2 million, the court held, via an extensive order, the carrier had not satisfied its burden to establish, as a matter of law, it had limited its liability under the Carmack Amendment.  The carrier pointed to two documents as the basis for its limitation of liability—1.) the bill of lading; and 2.) a Schneider Transportation Schedule.  The court applied the four-part Hughes test in determining whether the carrier validly limited its liability under Carmack.  Under Hughes, a carrier must take the following four steps to limit its liability: (1) maintain a tariff within the prescribed guidelines of the Interstate Commerce Commission [ICC]; (2) obtain the shipper’s agreement as to a choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment if that value would be reasonable under the circumstances surrounding the transportation.  The court held that it could not find, as a matter of law, the applicable bill of lading offered the shipper a choice of rates or that the carrier put the shipper or shipper’s intermediary on notice of the choice of rates.  With respect to the Schneider Transportation Schedule, which the carrier argued was incorporated by reference into the bill of lading, the court found it could not hold as a matter of law the schedule offered a choice of rates—noting that it seemingly provided the shipper only a single rate option.  In a win for the carrier, the court rejected the shipper’s argument that the carrier was required to offer full liability and where it has failed to do so the carrier’s liability for the full amount  of repairs or replacement.   

Ecuadorian Rainforest, LLC v. TForce Freight, Inc., 2022 U.S. Dist. LEXIS 186358, C.A. No. 22-cv-01856 (D.N.J. Oct. 12, 2022).  A shipper’s state law causes of action against a motor carrier for 1.) breach of contract; 2.) breach of the covenant of good faith and fair dealing; 3.) breach of bailment; and 4.) negligence, all related to an alleged delay in delivering its freight prior to a trade show, were held to be preempted by the Carmack Amendment.  Accordingly, the court dismissed all causes of action but allowed the shipper/plaintiff the right to amend the complaint to add a Carmack cause of action. 

COVERAGE

New S. Ins. Co. v. Capital City Movers, LLC, 2022 U.S. Dist. LEXIS 175337, C.A. No. 20-Civ-4087 (S.D.N.Y. Sep. 27, 2022).  In this declaratory judgment action, the New York federal court interpreted an insurer’s obligations pursuant to a Form F endorsement on the policy.  The shipment in question traveled wholly intrastate within New York.  The at-issue insurance policy had CSL limits of $750,000, but the involved vehicle was not listed on the policy and did not otherwise qualify as an “insured auto” under the policy.  The insurance policy contained the mandatory Form F endorsement and Form E certification certifying that the policy met New York’s financial responsibility requirements for intrastate motor carriers, which was $100,000 per person.  The most recent Form E on file with the New York Department of Transportation at the time of the accident reflected the policy provided liability coverage for bodily injury up to $100,000 per person.  The Form E did not match up with the $750,000 CSL limits, but instead referred to liability limits under a previous version of the policy.  After holding there was not coverage under the policy because the vehicle was not an insured auto, the court then determined the insurer’s obligations under the Form F endorsement and Form E certification.  Noting that the Form E certification merely certifies that the policy provides liability coverage up to the state’s minimum financial responsibility requirements for motor carriers, the court agreed with the insurer that its indemnification/surety obligation under the Form E/Form F was capped at $100,000—the financial responsibility requirement set by New York law/regulations—not the higher $750,000 in CSL coverage provided under the policy at the time of the accident.  Last, the court sided with the insurer finding it had no duty to defend because any such duty arises under the insuring agreement—i.e., the insurance policy—not by virtue of the Form F endorsement or Form E certification.  In so holding, the court distinguished a Georgia Court of Appeals, explaining any such obligation upon the insurer under the Form F/E is non-contractual and therefore does not create any duty to defend. 

Cnty. Hall Ins. Co. v. Lowe, 2022 U.S. Dist. LEXIS 187095, C.A. No. 21-cv-171 (D. Wyo. Aug. 18, 2022).  This declaratory judgment action arose out of a two-truck accident.  The tort plaintiffs alleged the owner of the tractor (“Harvey”), who also drove the tractor, was negligent in maintaining the tractor and said negligence caused an accident.  Joseph, an employee of Harvey and team-driver with Harvey, had been driving the truck but pulled to the side of the roadway when the truck began to rumble before becoming disabled altogether.  Not knowing what happened, Harvey jumped behind the wheel and tried to re-start the tractor-trailer.  While Harvey was sitting in the driver seat of the disabled truck, another tractor-trailer struck Harvey’s tractor-trailer in the rear. The policy included a scheduled driver endorsement, which purported to exclude coverage for any accident wherein the vehicle was being “operated or in control of” someone not listed on the endorsement.  At the time of the Accident, Harvey was listed on the scheduled driver endorsement but Joseph was not.  Accordingly, the insurer argued any obligation with respect to the Accident should be limited to $750,000 under the MCS 90 and not the full $1,000,000 coverage under the policy.  The court disagreed, finding that Harvey, not Joseph, was “operating” and “in control” of the tractor at the time of the Accident, despite not being able to move it, such that the scheduled driver endorsement did not exclude coverage. 

Carolina Cas. Ins. Co. v. Liberty Mut. Fire Ins. Co., 2022 U.S. Dist. LEXIS 188973, C.A. No. 2:18-cv-04813 (D.N.J. Oct. 17, 2022).  In this dispute between two liability insurers, the court was called upon to interpret various provisions of the insurance policies.  Rand-Whitney leased a tractor-trailer from Ryder (the “Subject Vehicle”).  Pursuant to a written agreement between Rand-Whitney and APS, APS was to use the Subject Vehicle to haul goods on behalf of Rand-Whitney.  An APS employee/driver was involved in an accident while hauling goods using the Subject Vehicle.  APS was insured by Carolina Casualty.  Rand-Whitney was insured by Liberty Mutual.  The issue in dispute was whether APS was insured by both the Carolina Casualty policy and the Liberty Mutual policy, or just the Carolina Casualty policy.  The Liberty Policy provided coverage for “you” (i.e., Rand-Whitney) for any covered auto or “anyone else while using with your permission a covered auto you own, hire, or borrow.  Neither hire nor borrow were explicitly defined in the Liberty Mutual policy and the court, citing to different provision of the policy, found they were ambiguous.  It therefore turned to other decisions interpreting those terms, noting that “the key inquiry regarding whether an automobile will fall within the hired automobiles provision is whether the insured exercised dominion, control or the right to direct the use of the vehicle.”  Pointing to the terms of the Transportation Agreement between Rand-Whitney and APS, the court held Rand-Whitney did not exercise the requisite degree of control the Subject Vehicle to qualify as a hired auto. The same analysis was applied with respect to “borrowed auto.”  As such, the court held Rand-Whitney could not be said to have hired or borrowed the Subject Vehicle and therefore there was no coverage for APS and its driver under the Liberty Mutual policy.   

WORKERS COMPENSATION

CRST Int’l v. Indus. Comm’n of Ariz., 2022 Ariz. App. LEXIS 294, No. 1 CA-IC-21-0049 (Az. Ct. App. Oct. 6, 2022).  In this appeal, the Court of Appeals of Arizona affirmed the Commission’s findings of compensability.  The injured employee worked as a truck driver and would drive a daily route between several locations, where once at a location, he would use a forklift to load bales of cardboard at retail stores to take for recycling.  On the day of the accident, the employee used a forklift to drive to the front of the store to purchase dog treats for his dogs.  He had done similarly on other occasions.  While doing so, he ran over an object that jostled him in the forklift causing him to strike his head on the forklift cage.  The court agreed with the Commission that this fact scenario was not a “substantial deviation” from the employee’s normal job duties, and accordingly the accident occurred within the course and scope of his employment with the carrier and was therefore compensable. 

Foley v. Pegasus Transportation/CRST Int’l, 2022 Ky. App. Unpub. LEXIS 577, 2021-CA-0785 (Ky. Ct. App. Oct. 7, 2022).  The Court of Appeals of Kentucky, in an unpublished opinion, affirmed the lower courts’ rulings that a prospective truck driver’s injury prior to completing a road test, drug test, and other paperwork, was not compensable.  The driver had been notified that he passed the initial qualification requirements, but that he would need to travel to Louisville, KY to perform a road test, pass a drug test, and complete other paperwork, which if completed he would be hired and could start driving for the company immediately.  The carrier rented a car for the prospective employee to drive to Louisville such that if he passed the remaining requirements, he could begin driving immediately and not have to leave his personal vehicle in Louisville at the carrier’s location.  The accident occurred while the prospective employee was driving the rental vehicle the day before he was supposed to report to the carrier’s Louisville facility for the road test, drug test, and other paperwork.  Under these facts, the appellate court agreed that there had not yet been an employment relationship established, citing preceding holding that “injuries that occur during the preliminary aspects of the hiring process are not deemed to have occurred in the course and scope of employment . . . .”  As such, the accident was not compensable. 

IDI Logistics, Inc. v. Clayton, 2022 Pa. Commw. Lexis 133, No. 514 C.D. 2021 (Pa. Comm. Oct. 18, 2022).  An injured truck driver was deemed to be an employee of the motor carrier for purposes of workers’ compensation.  At the initiation of the relationship, the driver signed an independent contractor agreement.  The carrier owned and insured the truck, which the driver used to deliver all loads for the carrier.  The carrier paid for all for all the gas in the truck.  The driver could refuse driving assignments and could work for other companies, but he never did.  He could not use the carrier’s truck for work for other companies.  The driver was paid by the mile and received a 1099.  The driver paid for all his own food while on the road and determined his own routes.  Noting that there were facts in favor of both independent contractor and employee status, the court affirmed the Commission’s finding the driver was an employee of the carrier.  In so holding, it noted the remedial purpose of the workers’ compensation act. 

First off, our thoughts and prayers are with all those affected by Hurricane Ian. Our industry is strong and I’m sure many are helping their family, friends, and clients work through the devastation of the natural disaster. We look forward to a speedy recovery and a return to normalcy.

Much of the country is cooling as Fall seems to be upon us. Pumpkin spice everything is available, so enjoy it while you can.

Hopefully, Mike Sevret and I will have had a chance to connect with many of you while at the Motor Carrier Insurance Education Foundation (MCIEF) event in Orlando on October 5-7. If not, please feel free to reach out to us directly.

Have a great October!

CAB Live Training Sessions

Please Note! We have transitioned our web meeting resource from Go to Webinar to Zoom. Due to this switch, we encourage you to sign into the webinar a little earlier than normal to ensure there are no connectivity issues.

Tuesday, October 11^th, 12p EST: Mike Sevret will present on CAB for Agents and Brokers. Learn about enhancements to the CAB ecosystem that can help drive growth and save time. Identify ways to use CAB data to change the conversation with markets and advocate for fleet customers and prospects. Use CAB List™ to monitor customers and ‘drive the wedge’ with prospects. Learn tips on how to leverage the BASICs Calculator™ and CAB’s Lead Generation tool, SALEs™.

Tuesday, October 18^th, 12p EST: Chad Krueger will provide a review of the BASICs Calculator. The BASICs Calculator is a very powerful safety and loss control tool that allows the user to identify pain areas within a motor carrier’s fleet. Agents and Underwriters find great value as it can help clarify how a motor carrier is progressing. Run scores simulations, forecasts, 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: Chameleon Carriers and Company Representatives

CAB’s Chameleon Detector has been a mainstay in the industry to help CAB Users understand the interrelationship between entities. Our Chameleon Detector is designed to help our users better understand some of the following questions: Does the motor carrier have additional divisions? Might the motor carrier have previously operated under a different name? Was there a merger between entities? Could there be a fraudulent representation? Is there a Freight Forwarder operation?

Remember, the Chameleon Carrier Detector can also help identify matching company representatives. Company Representatives become of value when your standard search has been run. From there, you can click the Chameleon Carrier^® icon and the Chameleon Carrier^® Report will identify if a similar name is also identified, which can warrant additional investigation and understanding.

Incorporating a motor carriers’ Representative into our Chameleon Carrier^® search algorithm has created additional clarity for our users. We’re happy to provide this feature and we know it will help provide clarity when searching motor carriers. 

We at CAB are constantly striving to improve our tools and resources to create value for our users. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are customer driven. Our goal is to help you Make Better Decisions!

THIS MONTH WE REPORT:

Health & Safety

Investing in Safety: The FMCSA has announced $80 Million in grant awards to make our trucking industry safer. The High Priority grants provide financial assistance to supplement motor carrier safety initiatives that impact the movement of hazardous materials, target unsafe driving, demonstrate new safety technologies, conduct safety data improvement projects and more. Read more

It’s not over yet. Covid waivers exempting a subset of truck drivers from maximum drive-time limits are extended through October 15. Read more

In the meantime, the Federal Motor Carrier Safety Association (FMCSA) is using feedback from a September comment period to see whether the waivers have had an impact on safety. Read more

Public comment period: The FMCSA is asking for comment on a proposal to require electronic identification for commercial vehicles, communicating wirelessly to federal or state motor carrier safety teams on request. Read more

Get the numbers: The Commercial Vehicle Safety Alliance (CVSA) International Roadcheck numbers are out. CVSA-certified inspectors conducted nearly 60,000 inspections May 17-19 in the US, Canada, and Mexico and placed more than 12,000 commercial motor vehicles out of service. Nearly 4,000 drivers were also placed out of service. Read more

Marketplace

Trucking operational costs reached a 15-year high in 2021, according to the American Transportation Research Institute. The organization reports a 13% increase in the cost of operations from 2020, with the largest increase reported in the cost of fuel. CCJ’s 10-44 reports on the details

Electronic Logging Devices: The FMCSA is ready to consider potential changes to electronic logging devices in pre-2000 model engines, ELD malfunctions, and more. The older models were initially exempted from current regulations, but we are seeing movement on this topic. Read more

Freight shipments: The Cass Freight Index shows that freight shipments hit an all-time high in August. Experts cite a shift from spot to contract, and other factors such as China emerging from lockdowns and pre-holiday inventory increases. Read more

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

AUTO

Swift Transp. Co. v. Carman, 2022 Ariz. LEXIS 243, CV-20-0119-PR (Ariz. Aug. 23, 2022).  In this appeal, the Arizona Supreme Court set forth the standard for an award of punitive damages.  Citing precedent, the court held for punitive damages to be awarded, something rising to the level of an “evil mind”, “intent to cause harm motivated by spite or ill will” or “conscious disregard of a substantial risk of harm to others” is required.  Thus, there is an intent to harm element or a conscious disregard of a substantial risk of harm to others that must be met before punitive damages are appropriate.  A truck driver’s failure to reduce speed to avoid hydroplaning and losing control of his vehicle and his failure to direct or warn incoming traffic or place out traffic warning devices per the FMCSRs after he ran off the road did not rise to the level necessary to submit the issue of punitive damages to the jury. 

Mason v. McGuffey, 2022 U.S. Dist. LEXIS 150952, C.A. No. 2:20-cv-320 (M.D. Ala. Aug. 23, 2022).  A motor carrier and its driver were granted partial summary judgment on various claims arising from an accident that occurred while the tractor-trailer was either parked on the shoulder of an on-ramp to the interstate or while slowly moving from the shoulder into the lane of travel.  The plaintiff sued the motor carrier and the driver, alleging claims for negligence/wantoness; (2) respondeat superior; (3) negligent/wanton hiring, training, supervision and/or retention; (4) negligent/wanton supervision of the maintenance, operation, service, and/or repair of the tractor trailer; and (5) negligent/wanton entrustment.  At the time of the Accident, the driver had been an employee of the motor carrier for four months and had been a truck driver for thirty years.  Before hiring the driver, the motor carrier examined his motor vehicle record, his pre-employment screening program record, and his prior employment history.  The motor carrier did not provide training for its truck drivers on how to operate tractor trailers, but only hires those with extensive experience in the field. As an initial matter, the plaintiff acknowledged all claims based upon alleged wanton conduct and negligent maintenance should be dismissed.  The court then held the negligent entrustment cause of action should be dismissed because there was insufficient evidence of the driver’s incompetence to operation a tractor trailer, with the court citing to the fact that the driver had been employed as a truck driver for thirty years and had maintained his CDL for approximately twenty years, during which time he had no speeding tickets or moving violations rising to the level of that recognized by Alabama authorities as establishing incompetence.  Having determined that the driver was not incompetent, the court then dismissed the negligent hiring, training, supervision, and/or retention claims, noting that to succeed on these claims under Alabama law, one most establish by affirmative proof that the employer knew or reasonably should have known of the incompetence, but “[t]here can be no knowledge, actual or otherwise, of something that does not exist.” 

Rayner v. Claxton, 2022 Tex. App. LEXIS 6651, C.A. No. 08-20-00145 (Tex. Ct. App. Aug. 31, 2022).  In this far-ranging opinion, the Texas Court of Appeal reversed the trial court’s multi-million-dollar award, including both compensatory and exemplary damages, and ordered a new trial on a limited issue.  First, the court held a member-manager of an LLC was not individually liable for an accident caused by a truck driver employed by the LLC.  Despite her testimony that she took responsibility for the accident, the court held that testimony did not impart a duty upon her individually where one did not otherwise exist under law and accordingly there was no basis of liability against the member-manager.  While the LLC had breached its duty by having a vehicle with out-of-service violations on the road, and it was foreseeable that the condition of the truck could cause harm, the evidence was insufficient to prove that the condition of the truck was a cause-in-fact of the occurrence and therefore there was no basis of liability for the LLC under a negligent maintenance theory of liability.  Likewise, the appellate court found there was no evidence to support a negligent entrustment theory of liability under which the LLC could be held liable.  The court also held there was insufficient evidence to establish an exemplary damages award against the LLC because its liability was based solely upon the vicarious liability of the driver.  Last, the court held the evidence did not support a finding that the driver, who deviated from the permitted route with his oversized load and struck a bridge, was grossly negligent, as the evidence did not support the inference that he discovered his mistake and yet continued traveling for several miles without looking for a place to stop.  The court remanded the case for a new trial against the driver and the LLC under a simple negligence and respondeat superior theory of liability, finding the trial court improperly submitted to the jury a single, broad-form liability questionnaire that included theories of liability for which there was insufficient evidence, “leaving doubt as to which theories the jury based its verdict, and gave no or inadequate instructions or definitions regarding [the LLC’s} vicarious liability.”

Finley v. Mora, 2022 U.S. Dist. LEXIS 157305, C.A. No. 20-11739 (E.D. Mich. Aug. 31, 2022).  In this case brought under Michigan’s no-fault auto insurance regime, the court granted summary judgment in favor of defendants.  Specifically, the court held the plaintiff’s treating physician’s opinion on causation was inadmissible because it was an etiological diagnosis based solely on the plaintiff’s complaints and plaintiff’s description of his medical history that did not consider alternative explanations for the plaintiff’s symptoms, and there were not sufficient indicators of reliability to support the treating physician’s opinion on medical causation. 

Germinaro v. Null, 2022 U.S. Dist. LEXIS 153885, C.A. No. 3:22-cv-115 (M.D. Ala. Aug. 26, 2022).  The Alabama federal court determined that a putative UIM carrier was a nominal party and accordingly its citizenship need not be considered for purposes of diversity jurisdiction.  In so ruling, the court affirmed the Broyles rule, which holds insurance companies should be considered real parties in interest only when they (1) have “become subrogated to the rights of their insured after payment of the loss,” (2) are “defending actions brought directly against them,” or (3) they “must assume primary and visible control of the litigation.”  In this instance, the court found the UIM carrier did not fall within any of the three noted exceptions and therefore was to be treated as a nominal party for purposes of diversity jurisdiction. 

Anthony v. Alvarez, 2022 U.S. Dist. LEXIS 162515, C.A. No. 7:20-cv-191 (M.D. Ga. Sep. 9, 2022).  In this case arising from a motor vehicle accident, the court dismissed negligent hiring, training, supervision, and entrustment causes of action against a motor carrier.  The court explained that under Georgia law, where an employer motor carrier admits vicarious liability and absent evidence supporting a meritorious claim for punitive damages against the motor carrier premised upon the motor carrier’s independent negligence, negligent hiring/training/supervision/and entrustment causes of actions must be dismissed.  

BROKER

Ortiz v. Ben Strong Trucking, Inc., 2022 U.S. Dist. LEXIS 156008, C.A. No. CCB-18-3230 (D. Md. Aug. 29, 2022).  A Maryland federal court held as a matter of law that an entity holding dual licensure as a broker and motor carrier operated as a broker in the disputed transaction.  The court found the evidence presented at the summary judgment stage established the entity held brokerage authority during all relevant times, held itself out to the shipper as a broker, not motor carrier, did not accept responsibility for the transportation of the freight, and that its failure to re-register as a broker post-MAP-21 was immaterial on the question of motor carrier versus broker.  As such, it could not be held vicariously liable for the negligence of the motor carrier’s driver.  The court rejected the broker’s argument that FAAAA preempted the negligent hiring claims against it, citing the safety exception to FAAAA.  Last, the court found there was a question of fact precluding summary judgment on the negligent hiring cause of action against the broker. 

CARGO

Beecher’s Handmade Cheese, LLC v. New Sound Transp., LLC, 2022 U.S. Dist. LEXIS 152984, C.A. No. 21-12809 (D.N.J. Aug. 25, 2022).  In this lawsuit arising from a rejected shipment of cheese, the shipper sued the company it contracted with for the transportation (Freezepak) as well as the delivering motor carrier (New Sound).  The operative pleading alleged a breach of contract claim against Freezpak and a Carmack claim against both Freezpak and the motor carrier.  Despite Freezpak being a transportation broker only, the court found the Complaint alleged facts sufficient to give rise to a Carmack claim against Freezpak because it alleged facts from which a jury could conclude that Freezpak “took responsibility for the transportation of the subject cargo” thereby subjecting it to liability as a carrier under Carmack. The court also noted that the question of whether a party has accepted responsibility for the shipment is “ultimately one of fact.”  Accordingly, the motion to dismiss the Carmack claim was denied.  With respect to the breach of contract claim, the court found the Complaint sufficiently alleged facts to avoid dismissal at the pleading stage, but nevertheless sua sponte requested supplemental briefing as to whether the breach of contract claim is preempted by Carmack. 

Von Der Ahe v. 1-800-Pack-Rat, LLC, 2022 U.S. Dist. LEXIS 148787, C.A. No. 3:21-cv-2526 (N.D. Tex. Aug. 19, 2022).  An interstate household goods mover prevailed on its motion to dismiss state common law causes of action for violation of the Texas Deceptive Trade Practices Act, common law breach of the duty of good faith, and deceptive practices under the Texas Insurance Code, with the court agreeing all such causes of action were preempted by the Carmack Amendment. 

Hadas Benhamou v. Moving Sols., LLC, 2022 U.S. Dist. LEXIS 152179, C.A. No. 21-10823 (E.D. Mich. Aug. 24, 2022). A Michigan federal court denied a household goods mover’s motions to dismiss based upon a forum selection clause.  The court first denied the 12(b)(3) motion, finding that rule was not the proper mechanism by which to enforce a forum selection clause.  Rather, it held a 12(b)(6) motion is the proper mechanism to enforce a forum selection clause, but nevertheless found issues of material fact remained as to whether the forum selection clause was valid insofar as it may have been “obtained unknowingly and unwillingly” by being included in the moving company’s terms and conditions and binding move estimate provided only a few days before the anticipated move.  Noting the stage of the proceedings and the obligation to accept all facts pled in the complaint as true, the court denied the motion, subject to the moving company’s right to later re-bring a motion to enforce the forum selection clause following some discovery on the issues.   

Wattiker v. Am. Auto Haulers, Inc., 2022 U.S. Dist. LEXIS 159625, C.A. No. 3:22-cv-00324 (N.D. Tex. Aug. 2, 2022).  In this lawsuit arising from alleged damage to a Porsche 911 transported from California to Texas, the court dismissed the direct-action claims against the insurer defendants.  The court rejected the plaintiff’s claims that Carmack’s “strict liability” regime allows for a direct action against a cargo insurer prior to obtaining a judgment against the putative insured motor carrier.  The court also denied, without prejudice, the pro se plaintiff’s motion for summary judgment on the pseudo-Carmack claim/strict liability claim against the putative insureds. 

Kelts v. King Ocean Servs., 2022 U.S. Dist. LEXIS 162359, C.A. No. 22-22299 (S.D. Fla. Sep. 8, 2022).  This case involves a pickup truck that was shipped from Florida to Costa Rica, but while still in possession of the ocean carrier at the destination port, was wrongfully released to an unauthorized individual.  The owner of the truck sued the ocean carrier for statutory civil theft and conversion under Florida common law.  The ocean carrier sought to dismiss the lawsuit against it on the basis that the claims were preempted by COGSA. The court noted that the ocean carrier’s bill of lading contained a “Clause Paramount” providing “[t]his bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of 1936 of the United States of America, as amended (“COGSA”) which shall apply to the Goods whether the Goods carried on or under deck to carriage of the Goods to, from, or between U.S. ports or between non-U.S. ports before the Goods are loaded on and after they are discharged from the vessel and throughout the entire time that they are in custody of the Carrier, whether acting as carrier, bailee, terminal operator, inland carrier, stevedore. Carrier shall be entitled to any and all defenses and limitations of liability provided under COGSA or any other compulsorily applicable law or for any and all claims arising out of Carrier’s custody or control of the Goods . . . .”  Applying Eleventh Circuit precedent holding that where COGSA applies, it provides the exclusive remedy, the court found the plaintiff’s sole recourse was pursuant to COGSA and dismissed the lawsuit subject to the plaintiff’s right to refile a lawsuit alleging claims only under COGSA. 

COVERAGE

Allstate Prop. & Cas. Ins. Co. v. Fowler, 2022 U.S. Dist. 151366, C.A. 1:21-cv-4534 (N.D. Ga. Aug. 23, 2022).  This case involves interpretation of the motor vehicle exclusion under a homeowner’s policy.  In interpreting the exclusion, the court applied the Hays test, which sets forth three factors for determining whether an injury arose out of the use of a motor vehicle: (1) the physical proximity of the injury site to the vehicle; (2) the nature of the conduct which caused the situation of jeopardy; and (3) whether the vehicle was being “utilized” in the plain and ordinary sense of the word.”  Applying the Hays test, the court found that the claimant, who was injured while assisting the homeowner load a purchased classic car onto a trailer owned by the claimant, arose out of the use of a motor vehicle and therefore was excluded from coverage under the homeowner’s policy.  The court went on to note that the claim would have likewise been excluded under the “but for causation” test and the clear language of the policy excluding bodily injury arising out of the “loading of any motor vehicle or trailer.” 

Gemini Ins. Co. v. Zurich Am. Ins. Co., 2022 U.S. Dist. LEXIS 150368, C.A. No. 8:21-cv-2052 (M.D. Fla. Aug. 22, 2022).  In this dispute between three insurers for indemnification obligations arising out of a fatal motor vehicle accident involving a tractor-trailer, the court held the policies’ respective other insurance clauses required two “excess” insurers to pay on a pro-rata basis.  The primary insurer (Old Republic) paid its $1 million limits while one of the two “excess” carriers (Gemini) paid $2 million of its $3 million limit to settle the case, then sought reimbursement of $1 million from the other “excess” insurer (Zurich), who had $1 million in coverage. The Gemini Policy’s Other Insurance provision provided “this insurance is excess over and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis.”  The Zurich Policy’s Other Insurance provision provided “when this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share.”  The court applied existing Florida law, which holds when two or more policies cover the same loss, but both contain excess other insurance provisions, the clauses are deemed “mutually repugnant” such that each policy shall pay on a pro rata basis determined by the policy limits in relation to the loss.  Applying this rule, the court agreed that Zurich’s indemnification obligation was limited to $500,000, not the full $1 million policy limits. 

Trisura Specialty Ins. Co. v. Blue Horse Trucking Corp., 2022 U.S. Dist. LEXIS 150255, C.A. No. 20-cv-24134 (S.D. Fla. Aug. 22, 2022).  In this Report and Recommendation, a Florida federal magistrate judge ruled that the settlement of the underlying tort action by the insurer, who agreed to pay the full settlement amount (amounting to the full limits under the policy) despite previously reserving its rights to deny coverage, providing a defense to the underlying claims under a reservation of rights, and instituting a separate declaratory judgment action seeking a determination of non-coverage, constituted an admission by the insurer that there was coverage under the policy for the loss sufficient to give rise to the putative insured’s recovery of reasonable attorney’s fees under Fl. Stat. § 627.428(1). 

A One Commer. Ins. Risk Retention Grp., Inc. v. BZ Tranz, Inc., 2022 U.S. Dist. LEXIS 152603, C.A. No. 2:21-cv-06411 (C.D. Cal. Aug. 23, 2022).  An insurer was held to be entitled to reimbursement under the MCS 90 endorsement for cleanup costs it paid following a loss.  The involved tractor-trailer was carrying eight Teslas when a wheel casing of the trailer caught fire, resulting in damage to the Teslas.  As a result of the fire, the battery compartments of several of the Teslas were compromised and lithium-ion materials were released onto the asphalt and dirt shoulder of the highway.  An environmental cleanup company removed the hazardous material and submitted invoices totaling approximately $45,000.00 to the motor carrier.  The motor carrier, in turn, tendered the invoices to the insurer for payment.  The insurer advised the motor carrier that it had no duty to pay the invoices because there was no coverage for the loss under the policy, nevertheless it would satisfy the cleanup invoices under the MCS 90 endorsement.  The court first held that the payment of the invoices, prior to the cleanup company filing suit, nevertheless was a “final judgment” for purposes of the MCS 90 endorsement.  It then held that despite no court or other proceeding concluding the motor carrier/insured acted negligently, as is required for triggering the MCS 90, applying res ipsa loquitur principles there was prima facie proof that the fire was caused by the motor carrier’s negligent maintenance of the trailer.  As such, this was sufficient to trigger the MCS 90 endorsement.

Anderson v. Nationwide Agribusiness Ins. Co., 2022 U.S. Dist. LEXIS 148976, C.A. No. 4:21-cv-4101 (D.S.D. Aug. 17, 2022).  A farm employee injured while driving her employer’s John Deere Gator on a public roadway was not entitled to UIM benefits under her employer’s business auto policy.  The policy was a scheduled auto policy, and the Gator was not listed on the schedule of covered autos.  However, the insured paid $162.00 to add the farm employee and another employee to the Schedule of Nonownership Coverage for liability coverage.  From this, the employee argued she was a Named Insured entitled to UIM benefits under the policy.  The court disagreed, finding that the Named Insured, despite not being defined in the policy, meant only the two individuals listed on the declarations page.  Because the Gator was not a covered auto and the injured employee was not a “Named Insured” or resident relative, the employee was found to not be entitled to UIM benefits. 

Am. Serv. Ins. Co. v. Webber’s Transp., LLC, 2022 U.S. Dist. 154092, C.A. No. 4:20-cv-013 (S.D. Ga. Aug. 26, 2022).  An insurer for a non-emergency medical transport company prevailed on summary judgment and was found to not be responsible for providing a defense or indemnification to the medical transport company, its owners, or the driver in multiple underlying lawsuits alleging personal injuries out of a motor vehicle accident involving one of the company’s vehicles.  First, the court found the named insured and its owners had not complied with the cooperation and notice provisions of the policy, to the detriment of the insurer, and therefore there was no coverage.  The court held these provisions were conditions precedent to coverage.  It was uncontested for the motion that the named insured and/or its owners did not notify the insurer of the Accident or turn over the lawsuit to the insurer, resulting in default judgment against multiple putative insureds in at least one of the actions.  Further, the court held none of the putative insureds qualified as insureds because the relevant policy language conditioned insured status on the accident involving a covered auto “driven by an approved driver.” The policy further provided a driver was not an approved driver unless he/she was reported to the insurer at the time of the application or subsequent thereto and approved by the insurer with said approval being provided via written notification from the insurer.  Neither occurred with the driver operating the covered auto at the time of the Accident.  As such, the court held the insurer had no duty to defend or indemnify any of the putative insureds in connection with the claims/lawsuits arising from the Accident. 

Hoops v. Auto Owners Ins. Co., 2022 U.S. Dist. LEXIS 165802, C.A. No. 4:20-cv-1712 (E.D. Miss. Sep. 14, 2022).  Determining that the evidence adduced to date raised a question of fact as to whether there was a phantom driver, and accordingly if there was uninsured motorist coverage available in connection with the loss, the court held the plaintiff was not entitled to recovery penalties under Missouri’s “vexatious litigation” statute. 

Holland v. Cypress Insurance Co., 2022 U.S. Dist. LEXIS 169220, C.A. No. 2:17-cv-120 (N.D. Ga. Sep. 12, 2022).  In this remand proceeding from the Eleventh Circuit Court of Appeals, the court upheld the jury’s award of $6 million in attorneys’ fees and litigation expenses under Georgia’s “bad faith” statute, O.C.G.A. § 13-6-11.  Noting that “Georgia law provides no specific formula to calculate attorney’s fees for bad faith;” typically the issue presents a question of fact; that the primary consideration is the overall reasonableness; and that any award will be affirmed if there is evidence to support it, the court found the award was reasonable under the facts of the case. 

Great West Cas. Co. v. Maric Transp.,Inc., 2022 U.S. Dist. LEXIS 168194, C.A. No. 1:21-cv-00441 (N.D. Ohio Sep. 16, 2022).  In this insurance coverage dispute, the Non-Trucking Liability Insurer was found to have no duty to indemnify or defend any putative insured in connection with a motor vehicle accident.  At the time of the Accident, it was undisputed the driver was transporting cargo in interstate commerce.   The NTU liability policy defined “covered autos” as including only those trucks, tractors, and trailers on file with the insurer leased by the motor carrier shown in the Declarations and only while under a written lease agreement of thirty (30) days or more.  It further provided the NTU policy would pay as damages bodily injury or property damage caused by an accident and resulting from the ownership, maintenance, or use of a covered auto only while the covered auto is “not used to carry property in any business” and “not used in the business of anyone to whom the auto is rented, leased, or loaned.”  The NTU Policy included a Motor Carrier Operations exclusion, but also included a Motor Carrier Reimbursement Endorsement providing the NTU insurer would pay any contractual obligation the insured has to reimburse a motor carrier to whom the insured is leased for any loss due to an accident and resulting out of the ownership, maintenance, or use of a covered auto, provided the loss is in a written agreement and is a type of loss listed in the schedule on the endorsement.  The court found that the loss was not covered because the parties stipulated the subject tractor-trailer was not listed or on file with the NTU policy, but even if it was, the policy did not afford coverage, either under the Insuring Agreement or the Motor Carrier Operations exclusion, whenever the auto was being used to carry property in any business or while being used in the business of the anyone to whom the auto is rented, leased, or loaned.  The court further rejected that the Motor Carrier Reimbursement Endorsement altered the determination of non-coverage, finding there was no written agreement in place sufficient to trigger coverage under the endorsement.

WORKERS COMPENSATION

Solis v. Indus. Comm’n of Arizona, 2022 Ariz. App. Unpub. 679, CA-IC-21-0046 (Ariz. Ct. App. Aug. 25, 2022).  The Court of Appeals of Arizona affirmed the Arizona Industrial Commission’s finding that a trucker was not entitled to workers compensation benefits from the broker or the broker’s associated motor carrier operation, when he was killed while performing transportation of a load brokered to him by the broker.  The court found that neither defendant exercised that level of control over the trucker’s operations to subject them to liability for workers compensation benefits.