Bits & Pieces

CAB BITS & PIECES June 2022

We hope you enjoyed your Independence Day holiday!

We hope your Independence Day holiday was filled with joy and quality time with family and friends.

As many of you have likely noticed, our Bits & Pieces has been delivered a few days later than normal. In order to ensure our newsletter does not get lost over weekends or holidays, we’re adjusting our delivery points. Do not worry, we will still be providing the great content and resources you’ve come to expect over the years.

Have a great July!

CAB Live Training Sessions

We will be taking the month of July off from our live training sessions. Keep in mind, all our great training content is still available via our webinar page by clicking here.

Below is a peek at our live training sessions that will take place in August.

Tuesday, August 9th @ 12p EST: Mike Sevret will present on one of CAB’s most valuable tools, CAB List. Learn how to best use CAB List to monitor your book of business. Set up triggered alerts, analyze the health of your motor carriers, and more! Attendees will learn how to monitor CAB-BASIC Scores, ISS-CAB Values, crashes, violations, safety rating, filings and others. Do not miss out on this opportunity to learn about this powerful CAB feature. Click here to register.

Tuesday, August 16th @ 12p EST: Learn how to grow your business with SALEs Targeted Leads. The CAB team will teach you how to target companies within your specific appetite with over 100+ filters. Search by insurance renewals, fleet size, commodities, and many other options. This is a great session for newer and experienced users. Click here to register.

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

CAB’s Tips & Tricks: Learn More About Chameleon Carriers.

For those of us that follow trucking news and events, you may have noticed there was a company named Jaypur Logistics LLC that was placed out of Service of May 7^th. The article details the numerous violations that lead to the Out of Service order. Certainly a company that had numerous issues that should have been addressed based on the “egregiously noncompliant” label given by authorities. This motor carrier was identified as a Chameleon Carrier in CAB’s Carrier Central and was linked to JPL Logistics LLC. We encourage our users to pay attention and learn all they can about chameleon carriers and associated alerts in the CAB system.

It is always good to pay attention to Out of Service orders as like in this case, Jaypur Logistics LLC started moving their operations to JPL Logistics LLC. The FMCSA became aware of this immediately took action to put JPL Logistics LLC out of service as well.

As noted in the Land Line article’s Editor’s note: A related company – Houston-based JPL Logistics LLC, U.S. DOT No. 3466122 – was declared an imminent hazard by the Federal Motor Carrier Safety Administration on May 31. FMCSA determined that it began operating so that Jaypur Logistics LLC, U.S. DOT No. 3150073, could avoid the imminent hazard order issued to it on May 7.

For more information on chameleon carriers and interrelated entities, please click here to review our 30-minute recorded webinar that took place on June 14, 2022. This webinar covers the concept of a chameleon carrier, interrelated entities and the features CAB provides to identify and understand the relationships that may exist between motor carriers.

Don’t forget to reach out to learn more about CAB’s new Express Report. The Express Report trial was very popular, and many organizations have already added the CAB Express Report to their current service.

The concise summary provided by the CAB Express report perfectly complements the in-depth analysis of the full CAB Report® to provide the best set of tools needed for the risk selection process.

The CAB Express Report can be added to your annual service immediately. To learn about pricing, please reach out to your CAB Representative at 212.244.6575 or via “Contact Us” link which is available in the “My Account” tab within your CAB access.

THIS MONTH WE REPORT:

Rising costs impact supply chain ability to get back in sync: The new 2022 State of Logistics Report is out, and notes residual effects of the pandemic are still negatively impacting the supply chain. Rising costs, increased e-commerce demand, and increasing challenges from last-mile delivery continue to drag down recovery. Read more

A ‘Great Purge’ is pushing small truckers out: Data shows that 2020-2022 brought an increase in owner-operators to serve demand during the Covid years. Of the 195,000 new carriers entering the market, about 70% were just one truck. Now, many of these small truckers are shutting down their companies. Read more

FMCSA rules against Houston company: No, you can’t just rename your company and start running that same fleet once it was deemed an “imminent hazard”. That’s what Houston trucking fleet owners and management learned the hard way from a recent FMCSA ruling after they re-started their shuttered company under a different name. Get the details behind the Jaypur Logistics story mentioned earlier in the newsletter. Read more

Robin Hutcheson FMCSA nomination progresses: “In the 25 years I have worked in the transportation industry, safety has always been at the core of my work.” Robin Hutcheson’s nomination to serve as Administrator of the Federal Motor Carrier Safety Association has been approved by the Senate Committee on Commerce, Science, and Transportation. The nomination will go to the full Senate for a vote. Here are a few articles on her confirmation hearing.

ATA Truck Tonnage Index Rose 0.5% in May: Economic indicators that are important to trucking slowed in May, according to ATA Chief Economist Bob Costelo. Read more

Truck Safety in the News:

Read more in these two stories.

Injury lawsuit verdicts become increasingly unpredictable: With average litigation-related payments rising, a partner at a nationwide transportation law firm says juries are awarding more and larger awards than ever before. Steve Stanaszak discusses the impact of these cases on trucking companies. Read more

Mongoose v. Reptile: Legal experts fight back for truckers when plaintiffs use the reptile theory to create emotional responses in jury trials. Several trucking associations are holding training sessions on the approach they call “the mongoose method” to help motor carriers protect themselves during lawsuits “The litigation psychology is the biggest element of the mongoose method,” according to John Esparza, president of the Texas Trucking Association. Read more

Biden Administration Prepares Trucking Workforce Programs Focusing on Women, Younger Drivers: The Infrastructure Investment and Jobs act passed last November has provisions for addressing the lack or women and younger drivers. The Women of Trucking Advisory board will be launched later this year, with a goal of identifying barriers to women entering and staying in the driving profession. Read more

Defining a Freight Broker: The FMCSA is seeking public comment on revised definitions of brokers and agents. Federal regulations have different definitions of brokers in different sections, causing confusion and legal issues, especially when the responsibilities of truck brokers and freight dispatchers overlap. FMCSA is asking the public for responses to a series of questions to help guide them in creating new definitions. Read more

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

AUTO

Shepp v. Custom Cartage, Inc., 2022 U.S. Dist. LEXIS 94137, C.A. No. 1:20-cv-02722 (N.D.Ga. May 25, 2022). A motor carrier’s motion for summary judgment on negligent hiring, training, and supervision causes of action was denied, with the court finding a jury question existed. The evidence established the driver had two traffic offenses within the three years before he was hired, including a failure to obey a traffic control signal or device, and another speeding ticket in the three months he had been on the job for the motor carrier. The motor carrier’s own policies provided for suspension of the driver following the on-the-job traffic citation, but that did not occur. The court found there was a jury question on the reasonableness of the motor carrier in hiring the driver and retaining/not suspending him, as required by its own internal policies. The court did grant summary judgment to the driver and the insurer sued under Georgia’s direct-action statute for the punitive damages claim but denied the motion as to the motor carrier because the motor carrier did not raise the issue until its Reply brief.

Brown v. White, 2022 U.S. Dist. LEXIS 93629, C.A. No. 21-1387 (E.D. Pa. May 25, 2022). A commercial bus operator’s motion for summary judgment on punitive damages was denied where the evidence, viewed most reasonably to the plaintiff, could establish the operator was talking on his cell phone at the time of the accident. While Pennsylvania typically does not permit cell phone usage alone to permit imposition of punitive damages, the court found various aggravating factors existed, including: (1) the operator was operating a large bus with 22 passengers on board at night; (2) he was driving as fast as the bus would allow; (3) he was driving with only one hand on the wheel; and (4) he never applied the brakes prior to the accident.

Acuna v. Covenant Transp., Inc., 2022 U.S. Dist. LEXIS 97413, C.A. No. SA-20-CV-01102 (W.D. Tex. May 4, 2022). Leasing company of tractor and/or trailer involved in a motor vehicle accident was denied summary judgment on vicarious liability claims against it where the defendants had collectively, in pleadings and discovery in the case, represented that the leasing company was the same entity as the motor carrier/employer, registration records listed the leasing company, not the motor carrier, as the registrant/lessee, and trip checklists and repair invoicing in the name of the leasing company reflected the motor carrier and the leasing company as the same entity.

Lynch v. Collins, 2022 U.S. Dist. LEXIS 106700, C.A. No. 20 C 02477 (N.D. Ill. June 15, 2022). A lessor of trailer involved in a tractor-trailer accident was entitled to summary judgment in its favor. The lessor argued it lacked any control over the driver’s operation on the trailer and therefore there was no basis upon which to hold it vicariously liable for the driver’s negligence.

Hebert v. Hallmark Cnty. Mut. Ins. Co., 2022 U.S. Dist. LEXIS 96930, C.A. No. 20-2774 (E.D. La. May 31, 2022). Motor carrier and commercial insurer sued under Louisiana’s direct action statute were granted summary judgment on negligent entrustment and other direct negligence causes of action where they admitted the negligence of the driver and that the motor carrier was vicariously liable for his negligence.

Fox v. Nu Line Transp., LLC, 2022 U.S. App. LEXIS 16709, C.A. No. 20-30716 (5th Cir. June 16, 2022). The Fifth Circuit Court of Appeals, finding no binding Louisiana authority on point, certified to the Louisiana Supreme Court the question of whether a tort plaintiff can simultaneously maintain a claim of direct negligence against an employer for negligent hiring, training, and supervision of an employee and a respondeat superior claim against the employer, where the employer has stipulated the employee was in the course and scope of employment at the time of the accident. We will continue to monitor and report the Louisiana Supreme Court decision once issued.

Jackson v. Trendafilov, 2022 U.S. Dist. LEXIS 95532, C.A. No. No. 19-cv-02886 (W.D. Tenn. May 27, 2022). A motor carrier’s motion for partial summary judgment on all direct negligence causes of action (negligent hiring, training, entrustment, and retention of Trendafilov, and for failing to meet its duties and responsibilities under the Federal Motor Carrier Safety Regulations, Tennessee law, and industry standards) was granted where motor carrier admitted vicarious liability for the negligence of its independent contractor driver.

Hill v. Nationwide Fire Mut. Ins. Co., 2022 Mich. App. LEXIS 3067, C.A. No. 355602 (Mich. Ct. App. May 26, 2022). The Court of Appeals of Michigan reversed a trial court’s denial of summary judgment in favor of a motor carrier and an operator of a commercial motor vehicle involved in an accident during snowy/icy conditions. The tort plaintiff was traveling above the posted speed limit during admittedly icy conditions and lost control of his vehicle leading to the accident, whereas the CMV operator was operating below the speed limit and applied his brakes as soon as he observed the tort plaintiff’s vehicle lose control and begin to spin. Likewise, the court explained any negligence attributable to the CMV operator would be excused by the sudden emergency doctrine.

Hunter v. Matheson-Tri-Gas, Inc., 2022 U.S. Dist. LEXIS 105753, C.A. No. 21-0062 (S.D. Ala. June 14, 2022). A tractor-trailer driver and his alleged employer were entitled to partial summary judgment in a case stemming from an accident caused after one of the steer tires blew out following which the tractor-trailer left its lane of travel and forced the plaintiff’s car off the road allegedly leading to personal injuries to the plaintiff. The court notes the stipulated facts acknowledged the cause of the blowout was unknown and accordingly the plaintiff had failed his burden to establish the blowout was caused by any negligence of either the driver or the company, so both defendants were entitled to summary judgment on claims predicated upon that negligence. However, for the remaining claims alleging the driver acted negligently in failing to keep his tractor-trailer in the lane of travel following the blowout, the court found that presented a jury question. The court specifically held the application of the sudden emergency doctrine rarely results in summary judgment. Because the employer’s basis for summary judgment was only that its alleged employee was not negligent and therefore there was no basis for vicarious liability, since the court held there was a jury question on the driver’s negligence after the blowout the motor carrier’s motion for summary judgment was denied.

Hamrick v. James, 2022 U.S. Dist. LEXIS 99887, C.A. No. 3:20-cv-417 (E.D. Tenn. Apr. 22, 2022). A tractor-trailer driver and his motor carrier employer were entitled to summary judgment on all counts. The driver had pulled his tractor-trailer completely into the emergency lane and engaged his flashers after experiencing a bout of nausea that caused him to believe he was going to throw up. The driver did not exit the vehicle to put out triangles, as was required under state law. Another tractor-trailer, drifted from the lane of travel into the emergency lane and struck the stationary tractor-trailer before striking yet another tractor-trailer causing both to jacknife. The driver of the second tractor-trailer filed suit against the driver of the first. The driver of the first tractor-trailer moved for and was granted summary judgment, with the court finding it was not foreseeable that someone would cross into the emergency lane, even though the accident occurred at night. Insofar as the court held the first driver’s negligence was not a proximate cause of the accident, the direct negligence actions against the motor carrier were also dismissed.

Marr v. Croxton, 2022 U.S. Dist. LEXIS 106904, C.A. No. SA-21-CV-000961 (W.D. Tex. June 14, 2022). Lessor of a box truck was granted summary judgment under the Graves Amendment in a personal injury case arising from a motor vehicle accident. The court found there was no negligence the lessor failed to properly maintain the vehicle and/or that any failure to maintain was a proximate cause of the accident. The court also rejected the lessor had any obligation to ensure the lessee complied with FMCSRs. Last, the court rejected that the lessor was the statutory employer of the driver under the FMCSRs.

Hanan v. Crete Carrier Corp., 2022 U.S. App. LEXIS 16895, C.A. No. 21-10831 (5th Cir. June 17, 2022). The Fifth Circuit Court of Appeals affirmed the trial court’s exclusion of a post-accident “Warning Notice” issued to the driver following the accident based upon the carrier’s determination that the accident was “preventable” and which required the driver to undergo additional training on defensive driving. The trial court excluded evidence of the Warning Notice under FRE 403 (prejudice outweighs relevance) and FRE 407 (subsequent remedial measure). The court specifically noted the preventability and negligence standards differed and allowing the notice into evidence risked the jury would confuse the two standards with respect to culpability for the accident.

BROKER

Total Quality Logistics, LLC v. Tucker, Albin and Assocs., 2022-Ohio-1802, C.A. No. CA2021-06-031 (Ohio Ct. App. May 31, 2022). The denial of a freight broker’s motion for permanent injunction against a factoring/collection company was affirmed on appeal. The freight broker entered into a broker-carrier agreement with the motor carrier that provided the motor carrier could only seek payment from the broker unless the broker consents in writing. After delivery of load, a dispute arose between the broker and the motor carrier regarding payment. The motor carrier sold its account receivables to a factoring company, who then attempted to collect the freight charges directly from the broker’s customer. The broker thereafter filed suit against the collections/factoring company, alleging amongst other causes of action for tortious interference with contract and/or business relationships and sought a permanent injunction against the attempts to collect on the disputed freight charges. The trial court granted summary judgment to the collections/factoring company. On appeal, the appellate court affirmed the trial court’s rulings denying the injunction and tortious interference claims. It found the broker failed to establish it faced the risk of immediate and irreparable injury or harm and therefore injunctive relief was not appropriate. It also found the broker failed to allege the collections/factoring company induced or otherwise purposely caused a third person not to enter or to continue a business relation or not to perform a contract with the broker. However, the court did find for the broker on its breach of contract cause of action and held it was entitled to nominal damages.

Coyote Logistics, LLC v. Bajan Enter., 2022 U.S. Dist. LEXIS 102271, C.A. No. 21-cv-6154 (N.D. Ill. June 8, 2022). A motor carrier’s motion to dismiss a freight broker’s breach of contract cause of action under the broker-carrier agreement was denied. The motor carrier was involved in an accident, resulting in total loss of cargo. The shipper deducted the loss from payments owed to the freight broker (presumably as provided for under the shipper-broker contract). The freight broker, in turn, filed suit against the motor carrier alleging a Carmack count and a count for breach of the broker-carrier agreement, which provided for indemnification in favor of the freight broker. The court found the at-issue indemnification provision was compliant with Illinois’ anti-indemnification statute applicable to “motor carrier transportation contracts” because it did not seek to indemnify the freight broker for its own negligence. The court did find one provision of the broker-carrier agreement violated the statute, but the court read that provision out of the agreement by virtue of the severability provision in the agreement.

Coyote Logistics, LLC v. Advance Trucking Sols., Inc., 2022 U.S. Dist. LEXIS 102270, C.A. No. 21 C 4789 (N.D. Ill. June 8, 2022). A freight broker’s Carmack lawsuit against a subcontracted motor carrier was dismissed for lack of personal jurisdiction. The Illinois-based freight broker contracted with a Canada-based motor carrier to transport a shipment of pharmaceuticals from Canada to Texas. Without authorization or consent, the motor carrier subcontracted or double-brokered the load to another Canada-based motor carrier, who in turn subcontracted or triple-brokered the load to yet another Canada-based motor carrier. The court ruled under these facts, the Illinois court lacked personal jurisdiction—both general and specific—over the second motor carrier. With respect to the lack of specific personal jurisdiction, the court noted there was no direct connection or contracting between the freight broker and the second motor carrier.

COVERAGE

United Fin. Cas. Co. v. Mid State Logistics, 2022 U.S. Dist. LEXIS 104532, C.A. No. 4:21-cv-00177. A commercial auto liability insurer was granted summary judgment in its insurance coverage declaratory judgment action. One of two team drivers for the motor carrier was injured while sleeping in the sleeper berth when the other team driver lost control of the tractor-trailer and it overturned. The injured driver filed suit against the other driver and the motor carrier. The insurer moved for summary judgment, alleging various employee exclusions in the insurance policy excluded the claims from coverage. The court applied 49 C.F.R. § 390.5 to supply the applicable definition of employee, finding that the injured driver qualified as an employee even though he was not driving at the time of the accident.

Anderson v. Motorist Mut. Ins. Co., 2022 U.S. Dist. LEXIS 110116, C.A. No. 2:21-cv-00493 (W.D. Pa. June 22, 2022). A personal lines UIM carrier was held to be entitled to a credit against UIM liability totaling the amount of liability insurance available from other parties involved in the underlying accident. The decedent was a passenger in a personal auto with $100,000 in liability limits. The other vehicle was a CMV with $1,000,000 in primary coverage with $4,000,000 in excess/umbrella coverage. The decedent’s estate settled with the tortfeasors in exchange for the $100,000 in liability limits available under the personal auto liability policy, but only $550,000 of combined $4,000,000 insuring the CMV. Included in the court’s analysis was consideration of Pennsylvania’s Fair Share Act and the exhaustion language under the UIM policy.

Progressive Mut. Ins. Co. v. Butler, 2022 Ga. App. LEXIS 320, C.A. No. A22A0322 (Ga. Ct. App. June 22, 2022). A Georgia appellate court reversed a trial court, which had denied an insurer’s motion to enforce settlement. The insurer had made a settlement offer, which had been unequivocally accepted by plaintiff’s counsel in writing. However, a week later and prior to any signed release, plaintiff fired his counsel and hired new counsel who disavowed the prior settlement, claiming the attorney lacked consent of the plaintiff to agree to those terms, and then demanded additional compensation to settle the claim. The insurer filed a motion to enforce the settlement agreement, which was denied by the trial court. On appeal, the Court of Appeals of Georgia found the prior attorney had apparent authority to accept the settlement offer on behalf of the plaintiff. The court further held there had been an unconditional offer and acceptance, as evidenced by the written acceptance by prior counsel for the plaintiff. The court rejected that a settlement offer has to be made in writing or that the release had to be signed in order for the agreement to be enforceable.

Wesco Ins. Co. v. Brad Ingram Constr., 2022 U.S. Dist. LEXIS 111041, C.A. No. 21-cv-05682 (N.D. Ca. June 15, 2022). An insurer’s motion for summary judgment based upon a pollution exclusion was granted. A contractor to the trucking company assisted in cleanup efforts following the 2018 Camp Fire, hauling hundreds of loads of debris from work sites to hazardous waste dumps. During those cleanup efforts, dust and other airborne matter entered into the truck’s ventilation system. Additionally, the contractor was required to operate in the vicinity of the dust while preparing for and hauling the loads, including while tarping the loads. Ultimately, the contractor fell ill and was diagnosed with sarcoidosis. The contractor sued the trucking company and the prime contractor for the cleanup project. The trucking company, in turn, filed a cross-complaint against another subcontractor (Ingram) on the project, seeking indemnification for the damages sought by the contractor. Wesco insured Ingram under a commercial general liability policy, which included a pollution exclusion for bodily injury claims. The court held the allegedly contaminated dust meet the definition of a pollutant, the alleged damages were caused by the “release” of said pollutant, and the wildfire itself was an “act of pollution” as each of those terms were defined under the policy. As such, the insurer had no duty to defend Ingram in the tort action.

WORKERS COMPENSATION

Liss v. TMS Int’l, LLC, 2022 U.S. Dist. LEXIS 101786, C.A. No. 3:19-cv-00810 (S.D. Ill. June 7, 2022). In an interesting case stemming from a workplace accident at a receiver’s facility, the court held that the motor carrier employer of the injured employee could be held liable to the receiver on the theory that the motor carrier employer failed to properly train its employee. The injured employee—a truck driver—was injured while walking across the receiver’s flooded property. The injured employee sued the receiver alleging unsafe conditions on the premises. The receiver, in turn, filed a third-party complaint under Illinois’ Joint Contribution Act against the motor carrier employer, alleging it failed to properly train the driver. The court found under the operation of the Joint Contribution Act, the motor carrier employer could be held liable for contribution. It further found there is a common law duty upon an employer to properly train its employees, the failure of which, could sustain a claim for contribution under these facts.

CAB Bits & Pieces May 2022

We hope you enjoyed your Memorial Day Holiday!

Welcome to the unofficial start of summer 2022!

Our keen readers will notice that this edition of the Bits & Pieces was delivered during the first few days of June. Our intention was to give everyone a chance to get back in the swing of things after the Memorial Holiday.

Memorial Day is observed each May, but how many of us know what Memorial Day is truly about—or its history? Memorial Day is considered a federal holiday in the United States in which we honor and mourn members of the military who have passed while serving in the United States Armed Forces.

On a side note, we would also like to thank everyone that attended the MCIEF Western Conference May 19th & 20th. It was great to see everyone, and we look forward to seeing additional folks at the Annual Conference in October in Orlando.

We hope everyone has a great summer!

CAB Live Training Sessions

Tuesday, June 14 @ 12p EST: Chad Krueger will present on Chameleon Carriers and Interrelated Entities. This session will cover the concept of a chameleon carrier, interrelated entities and the features CAB provides to identify and understand the relationships that may exist between motor carriers. Do not miss out on this opportunity to learn about this powerful CAB feature. Click here to register.

Tuesday, June 21st @ 12p EST: Mike Sevret will present on The CAB Report®. This training session will provide a detailed page by page overview of the CAB Report®, the data contained within, and the features available. This is a great session for newer and experienced users. Click here to register.

Don’t forget, you can explore all of our previously recorded live webinar sessions on our website!

CAB’s Tips & Tricks: CAB Express Report trial has ended.

We hope you had an opportunity to try our new CAB Express Report. Thus far, it has turned out to be very popular with a number of organizations adding the CAB Express Report to their current service.

The concise summary provided by the CAB Express report perfectly complements the in-depth analysis of the full CAB Report® to provide the best set of tools needed for the risk selection process.

THIS MONTH WE REPORT:

FMCSA amending household goods regs for carriers: The Federal Motor Carrier Safety Administration will be incorporating certain recommendations from the Household Goods Consumer Protection Working Group into the Transportation of Household Goods regulations. These changes to 49 CFR part 375 are intended to streamline documentation requirements, increase efficiency for the transportation of household goods and documentation requirements, improve consumer education and protection for individual shippers, and combat fraud. Read more here.

After March decline, truck transportation jobs up sharply in April: Though the March report showed a drop in job compared to February, the report for April showed an additional 13,000 truck transportation jobs, bringing the total of 1,564,100. This is the largest jump since April 2013, which had an increase of 15,800 jobs. Read more here.

CVSA announces Roadcheck inspection blitz dates, OOS criteria changes: This year’s International Roadcheck inspection blitz was help May 17-19 and focused on wheel ends. The Commercial Vehicle Safety Alliance chose to focus on wheel ends this year because related violations normally account for a quarter of vehicle out-of-service violations discovered during International and are one of the top 10 vehicle violations. Read more here.

Best practices for controlling CSA maintenance violations: To avoid CSA maintenance violations, always inspect your truck before your trip. Fleet owners an encourage this by making the inspection process as easy as possible for drivers by making forms electronic and easier to fill out. The same applies for post-trip inspections. Always make necessary repairs as quickly as possible, as well. Learn more tips here.

ATA, OOIDA ask for speed limiter comment period extension: The American Trucking Association (ATA) and the Owner-Operator Independent Drivers Association (OOIDA) both asked the Federal Motor Carrier Safety Administration (FMCSA) for additional time to comment on the proposal to require speed limiters on all heavy-duty trucks. Both organizations believe an extension will allow them enough time to develop meaningful feedback for the public comments. Read more here.

Traffic deaths reach 16-year high, NHTSA estimates: Traffic deaths in 2021 increased by 10.5% from 2020 according to data from the national Highway Traffic Safety Administration (NHTSA), rising from 38,824 to 42,915 fatalities. This projected number is the highest since 2005, and the largest annual percentage increase in the history of the Fatality Analysis Reporting System. Read more here.

Chart showing traffic deaths by type and month.

Top fleets’ Q1 earnings dispute freight recession narrative: Though the beginning of the year was marked with worries for freight recession, Q1’s earnings for top fleets put those fears to rest. Many fleets are even predicted conditions to remain good through Q2 and even throughout the rest of the year. Read more here.

Liability insurance increase held back by lack of insurance data: The FMCSA sent a report to Congress in May explaining that the organization in reluctant to get behind an increase in a carrier’s $750,000 liability insurance requirement, despite admitting that catastrophic crashes—though rare—”can significantly exceed the minimum level of financial responsibility.” However, the FMCSA said that the insurance industry’s lack of transparency is preventing the organization from supporting increases. Read more here.

Freight volumes down as chances of freight recession rise: The Cass Transportation Index report for April 2022 showed that U.S. freight volumes fell in April from March and the year-ago period. With more difficult comparisons in the next few months, Cass predicts more softness is coming as disruptions continue and possibly increase in the global supply chain. Read more here.

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

AUTO

Reilly v. Jones, 2022 U.S. Dist. LEXIS 86458, C.A. No. 3:21-cv-1521 (M.D. Pa. May 12, 2022). A motor carrier’s motion to dismiss on a punitive damages claim was denied where the trial court found the complaint alleged conduct sufficient to rise to the level of recklessness to support the punitive damages claim under Pennsylvania law. The court intimated the motor carrier may have success at the summary judgment phase, however.

Davis v. Adeoye, 2022 Conn. Super. LEXIS 547, Dkt. No. CV 20-6109798 (Conn. Super. Ct. May 10, 2022). A defendant’s Graves Amendment defense was stricken where the trial court found the defendant had failed to sufficiently pled facts giving rise to the applicability of the defense.

Johnson v. Valenzuela Acosta, 2022 U.S. Dist. LEXIS 90240, C.A. No. 3:22-cv-82 (W.D. Ky. May 19, 2022). A federal court remanded a removed case arising from a tractor-trailer accident, finding defendants’ removal was untimely. The original complaint merely alleged negligence and did not include any specific monetary demand. However, the plaintiff subsequently issued a settlement demand letter, demanding $445,000. The court held the demand constituted an “other paper” sufficient to provide “solid and unambiguous information that the case is removable” under 28 U.S.C. § 1443(b)(3) (i.e. amount in controversy exceeded $75,000) and under the applicable Sixth Circuit precedent. Since the removal did not occur within 30 days of the receipt of the demand letter, the removal was deemed untimely, and the case remanded to state court.

Morga v. FedEx Ground Package Sys., 2022 N.M. LEXIS 19, No. S-1-SC-36918 (N.M. May 19, 2022). The Supreme Court of New Mexico denied defendants’ motion for a new trial in a case in which the jury award totaled more than $165 million to four plaintiffs. The court found that the verdict was supported by substantial evidence and the record did not reflect the verdict was tainted by passion or prejudice. In the accident, a tractor pulling a double set of trailers crashed into the rear of a small pickup truck that had its flashers on and was either stopped or was moving very slowing in the right-hand lane of travel. A witness indicated the tractor-trailer never slowed and was traveling at sixty-five miles an hour at the moment of impact. The evidence established the tractor-trailer driver was distracted and never braked. Two occupants of the pickup were killed and another occupant sustained significant injuries. The trial judge denied the defendants’ post-verdict motion for a new trial, which was affirmed on appeal by the Court of Appeals under an abuse of discretion standard. The Supreme Court of New Mexico confirmed this was the appropriate standard for review of the denial of a new trial, not de novo review as the defendants argued. However, the de novo standard did apply to the issue of whether the verdict was excessive. Under this standard, the court held the award of noneconomic damages was not excessive and was supported by substantial evidence. The court also questioned whether the defendants’ comparison of other verdicts approach was useful in determining the excessiveness given the uniqueness of the facts of each case. The court also rejected comparison of economic and noneconomic damages as a measure of excessiveness. The court likewise rejected defendants’ claims that aspects of the trial stoked the passion or prejudice of the jury.

Holland v. Cypress Ins. Co., 2022 U.S. App. LEXIS 12842, C.A. No. 20-13538 (11th Cir. May 12, 2022). A jury verdict arising out of a tractor-trailer accident was affirmed on appeal. The appellate court ruled that the trial court properly denied the defendants’ motion for directed verdict because the evidence of negligence was overwhelming, specifically finding it established the truck driver was driving erratically before the crash, the truck driver lied on his DOT medical history form, and the jury could have concluded from the evidence presented the truck driver was taking hydrocodone while driving. The court further held the defendants failed to establish proof to support an Act of God defense as alleged. The court further affirmed the $2 million pain and suffering award because there was evidence to support pre-impact pain and suffering, including a video from a nearby business’s security camera showing the accident victim saw the trailer approaching him before impact. Last, the court held the trial court properly denied defendants’ motion for a mistrial, because even assuming the plaintiff’s counsel misstated the law in closing arguments, the trial judge provided a curative instruction. Gilbert v. Zablauskas, 2022 Conn. Super. LEXIS 518, Dkt. No. UWY CV 18 6041805 (Conn. Super. Ct. Apr. 29, 2022). The trial court dismissed a tort plaintiff’s unfair trade practices act claim, which alleged the motor carrier failed to adhere to federal and state law pertaining to the hiring, training, and supervision of their drivers and the way routes should be chosen. She further alleged these failures contributed to the accident involving one of the motor carrier’s drivers and equipment. The court stressed the UTPA was not enacted for the purpose of regulating motor vehicle safety and the FMCSA/FMCSRs do not create a private right of action for personal injury suits. As such, the court held the plaintiff lacked standing to allege a UTPA claim under these facts.

Johnson v. Ortiz Transp., LLC, 2022 N.Y. App. Div. LEXIS 2940, C.A. No. 2018-14263 (N.Y. App. Div. May 4, 2022). The New York appellate court affirmed the trial court’s denial of a motion to amend to add the owners of a trucking company as tort defendants. The proposed amended pleading lacked the necessary factual allegations to support piercing the corporate veil.

Vaccaro v. Francolopez

Vaccaro v. Francolopez, 2022 N.Y. App. Div. LEXIS 2900, C.A. No. 2020-02824 (N.Y. App. Div. May 4, 2022). The New York appellate court affirmed the trial court’s dismissal of a personal injury action against Ryder Truck Rental, Inc. under the Graves Amendment.

Resser v. J.B. Hunt Transp., Inc., 2022 U.S. Dist. LEXIS 76884, C.A. No. 1:21-cv-01041 (M.D. Pa. Apr. 27, 2022). In a personal injury action arising from a motor vehicle accident involving a motor carrier, the tort plaintiff sought in discovery the following materials: (1) DQ file; (2) driver investigation history file: (3) all documents pertaining to the annual inquiry of the driver’s driving record; (4) all documents relating to any audit of the DQ file performed by DOT; (5) all documents required to be maintained related to the driver in the event of an audit by DOT; (6) all records related to the driver’s job performance; and (7) all documents relating to the motor carrier’s commencement and/or termination—voluntary or involuntary—of employment with the motor carrier. Motor carrier raised multiple objections including that the request was vague, overly broad, not proportional to the needs of the case, and sought disclosure of subsequent remedial measures. The court, while agreeing with the motor carrier, that the relevant focus was what happened at the time of the accident, held some of the records were nevertheless relevant insofar as they related to the safety record of the driver. However, since the tort plaintiff had not alleged a negligent hiring cause of action, the court held the 49 CFR 391.53 records—the driver investigation history file—were not relevant and therefore not discoverable. The court also held tort plaintiff had not satisfied its burden to establish the relevance of any documents subject to audit by DOT and all documents relating to the driver’s performance (other than the termination notification). The court carefully noted that for those materials it ordered produced, it was withholding judgment on ultimate admissibility, which could be challenged via a subsequent motion in limine.

Sanchez v. S&H Transp., Inc., 2022 U.S. Dist. LEXIS 74480, C.A. No. 20-cv-0374 (N.D. Ok. Apr. 25, 2022). A motor carrier was granted summary judgment on negligent entrustment and negligent hiring, training, supervision, and retention causes of action. The driver/owner-operator was involved in an accident while pulling a trailer belonging to a motor carrier while operating under that motor carrier’s DOT authority. The owner/operator had worked for the motor carrier for nearly 30 years and had worked as a truck driver for almost 40 years. The motor carrier submitted proof of all pre-employment background checks and annual driving history checks. The driver had no significant prior moving violations or accident history. On the negligent entrustment claim, the tort plaintiff—faced with the fact that the owner/operator owned the truck he was driving at the time of the accident—argued that the motor carrier negligently entrusted its DOT authority to the owner/operator. The court was skeptical whether such a theory supports a negligent entrustment cause of action, but nevertheless held even it the entrustment of DOT authority could form the basis for this claim, there was no evidence to support the motor carrier knew or should have known entrusting its DOT authority to the owner/operator was dangerous and likely to harm others. With respect to the remaining claims, the court held the undisputed evidence established there was nothing to give the motor carrier notice that hiring or retaining the owner/operator was likely to cause an undue risk of harm. As such, the motor carrier was entitled to summary judgment on each of these claims.

Jiang v. Z&D Tour, 2022 NYLJ 412, C.A. No. 152331/2021 (N.Y. Sup. Ct. Apr. 28, 2022). Multiple defendants were granted motions to dismiss for lack of personal jurisdiction. This lawsuit arose out of multi-vehicle accident that occurred in Pennsylvania. The tort plaintiff filed suit in New York, which she lived. The tort plaintiff was a passenger on a bus operated by Defendant Z&D. The driver of the bus lost control and rolled the bus, which was subsequently struck while standing askew across the roadway by two tractor-trailers owned and/or operated by defendants FedEx Ground Package, Penske Truck Leasing, and UPS. Z&D had its principal place of business in New Jersey but had registered with the State of New York as an out-of-state business authorized to do business in the State of New York. Z&D also owned and operated a brick-and-mortar storefront in New York City from which it sold tickets for and chartered buses from New York to Ohio. FedEx Ground is incorporated under the laws of the State of Delaware with its principal place of business in Pennsylvania. The FedEx tractor-trailer involved in the accident did not travel through and neither departed from nor was headed to New York. Penske is a Delaware business corporation with its principal place of business in Pennsylvania. UPS is a corporation under Ohio law with its principal place of business in Georgia. Under these facts, the court held it had general personal jurisdiction and specific personal jurisdiction over Z&D but lacked either general or specific personal jurisdiction over the other defendants.

Mata v. Argos USA, LLC, 2022 Tex.App. LEXIS 2639 (Tex. Ct. App. Apr. 22, 2022). The Court of Appeals of Texas affirmed the trial court’s grant of summary judgment in favor of a shipper on claims that: (1) it was vicariously liable for the negligence of the motor carrier and driver transporting its cargo; (2) negligent hiring of the motor carrier and driver; (3) it violated its duty, under its own internal safety policies, to ensure the safety of the motor carrier’s tractor-trailer; (4) violations of the FMCSRs; and (5) negligence per se. In affirming summary judgment, the court held there was no evidence to establish the shipper exerted any control over either the freight broker who hired the motor carrier or the motor carrier/driver. Further, the FMCSRs and equivalent state statutes/regulations did not apply to the shipper—they only apply to motor carriers. Finding the shipper exerted no control over either the freight broker or the motor carrier/driver, there was no basis for liability against the shipper under common law, even if the shipper did not follow its own “internal best practices” for selecting independent contractor motor carriers.

Monk v. Luna, 2022 N.Y. Misc. LEXIS 1604, Index No. 450721/2021 (N.Y. Sup. Ct. Mar 29, 2022). The owner/lessor of a motor vehicle involved in an accident was entitled to summary judgment on claims of vicarious liability for the negligence of the operator of the motor vehicle under the Graves Amendment where the undisputed evidence established there was no mechanical defect with respect to the leased auto.

Price v. Austin, 2022 Mich. LEXIS 791 C.A. No. SC 161655 (Mich. Apr. 22, 2022). The Supreme Court of Michigan reversed summary judgment in favor of a tractor-trailer operator who alleged as a defense to the negligence claims the sudden emergency doctrine. The driver presented his own testimony, testimony from his treating physicians, medical records, testimony from the responding officer, GPS records, and the evidence of a lack of braking before the accident. However, the court held credibility of the driver’s account was in issue, and accordingly summary judgment was inappropriate.

BROKER

Mata v. Allupick, Inc., 2022 U.S. Dist. LEXIS 87656, C.A. No. 4:21-cv-00865 (N.D. Ala. May 16, 2022). In a personal injury lawsuit arising from a motor vehicle accident involving a tractor-trailer, the freight broker’s motion for judgment on the pleadings under FAAAA preemption was denied. The court held while the tort plaintiff’s claims related to a freight broker’s services, the safety regulatory exception applied to prevent the claims from being preempted.

CARGO

Swenson v. Storage, LLC, 2022 U.S. Dist. LEXIS 86466, C.A. No. 21-cv-01968 (D. Co. Apr. 26, 2022). At the motion to dismiss stage, the Colorado federal court held it was premature to determine whether the Carmack applied to a company who offered/marketed interstate moving services to consumers, but who ultimately contracted with other interstate household goods movers to perform the moves. As such, the court denied the defendant’s motion to dismiss the Carmack Amendment claim and further denied the defendant’s motion to dismiss the state law claims for disgorgement of profits, breach of contract, violation of the Colorado Consumer Protection Act, and injunctive relief because if ultimately the defendant acted as a freight broker only, then there would be no Carmack preemption for these causes of action. However, the court did hold that FAAAA preempted the Consumer Protection Act claim.

Gold Town Corp. v. United Parcel Servs., Inc., 2022 N.Y. Misc. LEXIS 2063, C.A. No. 570230/21 (N.Y. App. Div. May 18, 2022). The New York appellate court affirmed the lower trial court’s grant of UPS’s motion to dismiss a tort plaintiff’s negligence, conversion, and fraud causes of action for UPS’s alleged failure to deliver or return a package. The court held the FAAAA preempted those causes of action because they related to the “price, route, or service of motor carriers of property” and directly related to UPS’s alleged failure to deliver the package as agreed.

Dillard v. Smith, 2022 U.S. Dist. LEXIS 83706, C.A. No. 1:19-cv-821 (N.D. Ga. May 9, 2022). A trucking company was granted summary judgment on a punitive damages claim premised upon its driver’s alleged negligence, but its summary judgment motion on the negligent hiring, training, and entrustment claim was denied. The facts revealed that the driver of the tractor-trailer had not previously encountered any issues with his brakes. As he approached a red light, he determined it took more pressure than normal to get the brakes engaged and the tractor-trailer stopped. Realizing that it was dark outside and there was no room for him to safely pull over, and that he was very near his destination, he opted to continue toward his destination and address the brake issue at that time. Unfortunately, as he approached another stop light, he was unable to stop at all and ran through the light, causing a collision. The driver was driving 55 mph prior to attempting to stop. Under this record, the court held there was not sufficient evidence to support a punitive damages award based upon the driver’s actions. With respect to negligent hiring, retention, supervision, and entrustment claim, the court held the record before it was insufficient under the applicable rules to establish no question of material fact existed and therefore that aspect of the motion was denied. Chubb Seguros Arg. S.A. v. UPS, 2022 U.S. Dist. LEXIS 80352, C.A. No. 20-cv-3074 (S.D.N.Y. May 3, 2022). At issue in this case were both standing and the effectiveness of a limitation of liability under the Carmack Amendment. AMX purchased a piece of telecommunications equipment from a supplier. AMX then contracted with a freight forwarder to arrange for the total transportation of the cargo from Tempe, Arizona to Argentina. The freight forwarder subcontracted with its USA-based affiliate, who in turn subcontracted with a carrier (GLT), who in turn subcontracted with UPS to transport the cargo by truck from Tempe, Arizona to Miami, Florida. AMX had no contact with any of the subcontractors prior to the cargo’s departure from Arizona. AMX was familiar that overland carriers sometimes impose limitations of liability and itself had an entire in-house department whose job was to process and consider whether to declare excess values or increase limitations of liability; however, in this instance AMX did not seek to increase the limits of liability because it already had an existing cargo loss insurance policy covering the loss. The agreement between GLT and UPS was private and confidential and offered no option for full Carmack liability. GLT drafted the bill of lading based upon information provided by the freight forwarder and UPS issued the bill of lading. The freight forwarder did not include a declared value for the cargo. UPS was listed as the carrier, the supplier in the “Ship From” box and the freight forwarder in the “Ship To” box on the bill of lading. The cargo was damaged while in transit from Arizona to Miami. Chubb, as the insurer, for AMX paid the cargo loss claim and was subrogated to AMX’s rights. Chubb then sued the freight forwarder’s USA affiliate, GLT, and UPS. The court rejected UPS’s arguments that Chubb lacked standing to sue under Carmack because it was not listed on the bill of lading. It explained Carmack “allows suits by anyone entitled to recover in the receipt or bill of lading, including the buyer who was to receive the goods.” Under traditional agency theories, and because UPS knew the freight forwarder’s USA affiliate was not the ultimate consignee and was not the “real party in interest”, the court held AMX had standing to sue under Carmack, and Chubb, who was subrogated to AMX’s rights, likewise had standing to sue under Carmack. The court further ruled there was a material disputed fact whether UPS properly limited its liability. The court did hold that the freight forwarder could have effectively agreed to UPS’s limitation of liability, even if the consignee or shipper themselves were not offered the fair opportunity to select a higher or lower limit of liability in exchange for differing shipping rates. However, on the record before the court there was insufficient evidence of the negotiations between GLT and the freight forwarder or the freight forwarder’s knowledge of the private agreement between GLT and UPS to decide the fair opportunity issue.

COVERAGE

James River Ins. Co. v. Rich Bon Corp., 2022 U.S. App. LEXIS 13851, C.A. No. 20-11617 (11th Cir. May 23, 2022). The Eleventh Circuit Court of Appeals reversed the district court and remanded the insurance coverage declaratory judgment action to the district court for further proceedings. The district court, weighing its discretion to hear the federal coverage action under the federal Declaratory Judgment Act (“DJA”), considered: (1) whether the two lawsuits were parallel enough to compare at all, which it determined they were because both involved Florida’s workers compensation law and there was a continuity of parties between the two suits; and (2) whether federalism concerns outweighed the efficiency of resolving the claims in federal court. Ultimately, the district court dismissed the federal coverage action in favor of the state tort suit. On appeal, the Eleventh Circuit reversed the district court and explained the usefulness of insurance coverage declaratory judgment suits generally. The Eleventh Circuit then re-affirmed its “non-exhaustive” list of nine factors under Ameritas Variable Life Ins Co. v. Roach, 411 F.3d 1328 (11th Cir. 2005) for federal courts to weigh when considering whether to exercise their discretionary jurisdiction under the DJA. It explained that the district court should not have considered whether the two actions were parallel before applying the Ameritas factors. The Eleventh Circuit also held the district court, in its analysis, focused almost exclusively on federalism concerns under the Ameritas factors to the exclusions of all others. Further, it found the court had misapplied one of the factors, mistakenly concluding the issues between the state tort suit and federal coverage action were the same, whereas the Eleventh Circuit noted that insurance coverage was not at all in issue in the tort action. In sum, the Eleventh Circuit held the district court did not properly consider the efficiency created by having the federal coverage action decided under the “totality-of-the-circumstances” analysis.

Yuncker v. Dodds Logistics, LLC, 2022 Mo.App. LEXIS 300, WD84645 (Mo. Ct. App. May 17, 2022). A commercial insurer’s post-judgment attempts to intervene and set aside an arbitration award turned judgment against a motor carrier failed. The motor carrier tendered the defense of the personal injury claims to multiple insurers and requested written confirmation within 14 days if the insurer(s) would provide a defense and indemnification. The insurer responded, indicating it could not confirm a valid policy number or alleged insured based upon the information provided and that it accordingly “cancelled the claim.” The motor carrier defendants and tort plaintiffs agreed to arbitrate the claims, with the arbitrator ultimately awarding the tort plaintiffs $13,500,197.25 and $7,500,000, respectively. The arbitration award was confirmed on appeal to the circuit court and the court entered judgment consistent with the award. Two days after the judgment was entered, the insurer filed a motion to intervene, which included a request to vacate and set aside the judgment. Because the insurer did not file a motion to intervene before entry of judgment, the applicable procedural rule required the trial court to act on the post-judgment motion within 30 days or the judgment became final. Where the motion to intervene is not ruled upon within that timeframe, the movant remains a non-party to the judgment. Accordingly, the court held the insurer lacked statutory authority to challenge the judgment. Since the insurer could litigate the coverage issues (i.e. whether its policy obligated it to provide a defense and/or indemnification with respect to the judgment) in a separate declaratory judgment proceeding, the insurer’s constitutional complaints were held to be misplaced.

Knightbrook Ins. Co. v. Sanchez, 2022 N.J. Super. LEXIS 65, Dkt. No. A-1115-20 (N.J. Super. Ct. App. Div. May 16, 2022). The appellate court reversed a lower court’s ruling, which had found that an insurer had no duty to indemnify its insured on account of the insured’s failure to cooperate in the investigation and defense of the claim. The insurance policy contained a standard duty to cooperate provision. After the accident, the insurer received notification (source unknown) of the accident. Claim notes indicated the insurer was provided with some basic information regarding the accident and possible claim value, sufficient for it to reserve some amount of money on account of the claim. The plaintiff ultimately filed suit and the complaint was served upon the insured’s father. The insured never notified the insurer she had been served and did not provide a copy of the complaint to the insurer. However, one way or another (presumably from plaintiff’s counsel), the insurer received a copy of the complaint as evidenced by a letter requesting the insured to contact the insurer and the fact that the insurer assigned counsel to represent the insured in the tort action. Slightly over a year after the complaint was filed, the insurer issued a reservation of rights to the insured raising the insured’s failure to cooperate. No other coverage issues were addressed in the ROR. The insurer ultimately withdrew the defense of the tort suit and instituted a separate insurance coverage declaratory judgment action. On appeal in the declaratory judgment action, the appellate court held the insurer failed to establish it was materially prejudiced by the insured’s failure to cooperate. The court held that to disclaim coverage for non-cooperation, the insurer must establish either: (1) irretrievable loss of substantial rights to coverage determinations based on the insured’s breach of the insurance policy; or (2) the likelihood of success of the insurer in defending against the accident victim’s claim is less than had there been no breach. Since there was no coverage issue (other than the non-cooperation), the court held the first prong was not met. With respect to the second variable, the court held there was ample evidence in the record establishing the insurer could defend the tort action based upon evidence available to it even absent cooperation of the insured. As such, the court held the denial of coverage was not appropriate.

Argonaut Ins. Co. v. Atl. Specialty Ins. Co., 2022 U.S. Dist. LEXIS 83078, C.A. No. 21-1602 (E.D. La. May 9, 2022). In a coverage dispute between a commercial auto liability insurer and the non-trucking liability insurer, the court held the NTL policy did not apply. The driver of a tractor-trailer had completed his final load of the day and was bobtailing. He first considered going to a grocery store before realizing he needed money from his residence to make the contemplated purchases. While en route home, he changed his mind and decided to first go by a convenience store to buy cigarettes. This required a U-turn away from the route to his residence. The truck was normally garaged at his residence. While making said U-turn to go buy cigarettes, he was involved in a motor vehicle accident. The NTL policy provided for coverage when the truck is subject to an active permanent lease with a government regulated motor carrier and is either bobtail or deadhead and is operating solely for personal use unrelated to the business of the Motor Carrier. The policy further provided it was “not Non-trucking” when the truck is returning to the truck’s primary garage location subsequent to delivering a load—“the home parking base for a truck or the terminal from which the truck customarily obtains hauling assignments.” Noting that under the relevant policy language, the truck could be simultaneously being used for personal and motor carrier business, and further, that the NTL coverage exception for returning to the primary garage does not require the most direct route, the court found the excursion was a “minor personal detour” from returning the truck to its principal garage location—the driver’s residence. As such the NTL policy did not apply.

Bufkin v. Geico Ins. Agency, Inc., 2022 Miss. LEXIS 127, C.A. No. 2021-CA-00251 (Miss. May 12, 2022). The Supreme Court of Mississippi ruled that an employee, injured by her employer in an automobile accident, may not recover UM benefits under the employee’s own UM policy. Citing the prior case of Medders v. U.S. Fidelity & Guaranty Co., 623 So.2d 979 (Miss. 1993) as determinative of the issue, the court explained the UM claim could not be maintained because under Mississippi’s workers compensation exclusivity rules the employee could not sue the employer.

Wesco Ins. Co. v. Rich, 2022 U.S. Dist. LEXIS 78036, C.A. No. 1:20-cv-305 (S.D. Miss. Apr. 29, 2022). In this insurance coverage declaratory judgment action, the court denied the defendant/tort plaintiff’s motion to reconsider the order holding the insurer’s obligations to satisfy any judgment entered against the motor carrier was limited to $750,000 under the MCS 90 endorsement, not the $1,000,000 in liability limits under the policy. The insurance policy was a scheduled auto policy, and the involved tractor-trailer was not listed on the policy. The insurance policy contained a MCS 90 endorsement. The court affirmed there was no prohibition for an insurer providing a limit of liability for an MCS 90 endorsement different from (i.e. less than) the limit of liability for the underlying policy. The only requirement is that the insurer provide a minimum of $750,000 in surety obligation under the MCS 90. As such, only the $750,000 under the MCS 90 was potentially at play to satisfy any judgment, not the higher $1,000,000 limits of liability under the policy.

Travelers Indem. Co. v. Johnson, 2022 U.S. Dist. LEXIS 81635, C.A. No. 4:17-cv-86 (N.D. Ind. May 5, 2022). In this insurance bad faith action, the parties’ respective cross-motions for summary judgment were denied. The court found whether the insurer “had a rational, principled basis” for valuing the case in the manner it did and in incorrectly assuming an agreed to limitation relating to the motor carrier’s bankruptcy limiting exposure to $1,000,000 also extended to the tort defendant driver both presented jury questions. The court similarly held whether the insurer acted in a grossly negligent manner so as to expose it to punitive damages was likewise a jury question.

WORKERS COMPENSATION

Chenevert v. Constellium Muscle Shoals, LLC, 2022 U.S. Dist. LEXIS 87660, 2022 U.S. Dist. LEXIS 87650 (N.D. Ala. May 16, 2022). In this personal injury tort lawsuit arising from a truck driver’s injuries while on a shipper’s premises, the truck driver alleged the shipper provided faulty instructions, maintained an unsafe work area, and designed and maintained a faulty catwalk, all of which combined to cause him to fall and sustain injuries. The premises owner alleged in its answer a defense premised upon special employee, which it argued meant the truck driver’s exclusive remedy was via workers compensation. Thereafter, the truck driver amended his complaint to add an alternative workers compensation claim and sought remand. The Alabama district court, explaining that federal courts lack jurisdiction to resolve matters involve state workers compensation laws, remanded the case to state court for further proceedings.