It has been quite a month at CAB! 

As many are away, Jean Gardner, our longtime leader and CEO retired as of last month.  Whereas we are sad to see her go, we are so very excited for her next chapter.  She looks forward to traveling and continuing her volunteer work.  In true Jean form, she also rescued a dog recently, so we know she will have plenty of excitement in her life! 

In additional exciting Jean news, she recently received the 2022 Inland Marine Underwriters Association (IMUA) Lifetime Achievement Award to a standing ovation at the IMUA Annual Conference in Savannah Georgia.  We are very excited for Jean, and we look forward to continuing the amazing leadership and example she has set for all of us. 

In other news, we look forward to seeing many of you at the Motor Carrier Insurance Education Foundation (MCIEF), 2022 Western Conference in Phoenix, AZ.  Later this month May 19-22.  As in-person events become more available, we look forward to seeing many of you in the coming weeks and months. 

Have a great month! 

CAB Live Training Sessions 

Tuesday, May 10 @ 12p EST: Mike Sevret will present on Introduction to CAB: Flow and Navigation.   This is a great session for new users or folks looking for a refresher.  Mike will provide an overview of the basic flow and navigation of the overall CAB environment.  Don’t miss out on this opportunity to learn about this powerful CAB feature. Click here to register. 

Tuesday, May 17th @ 12p EST: We will be presenting on our recently released CAB Express Report.  The Express Report is currently on a trial period for specific users.  This new condensed report provides the most important motor carrier info in a single view and can be downloaded as a two-page document perfect for sharing.  Click here to register. 

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

Follow us at CAB Linkedin Page CAB Facebook Page 

CAB’s Tips & Tricks: Newly launched CAB Express Report 

The CAB Express report is a concise summary report that contains easy-to-read graphs, charts and tables that deliver the information you need to make quick data driven decisions.  It is available to selct users on a trial basis.  The CAB Express report downloads as a two-page PDF perfect for sharing.  No cost until the end of May. 

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. 

Access the CAB Express report directly by clicking on the new CAB Express report icon in the lower right corner of Carrier Central, or alternately, from the icon in the upper left of any full CAB Report® 

THIS MONTH WE REPORT: 

FMCSA again plans to explore speed limiters for heavy-duty trucks: The Federal Motor Carrier Safety Administration on Wednesday (4/27/22) issued a notice of intent to proceed with a rulemaking that would require the use of speed limiters on heavy trucks. Yesterday’s action is the first step forward toward a potential speed-limiter requirement in almost six years, though the notice does not specify any specific maximum speed. The proposed rulemaking in 2016, a similar request for comment from the industry and the public, was different in that it sought comments on maximum speeds of 60, 65 and 68 miles per hour.  This latest notice of intent is a fact-finding and data-mining exercise, FMCSA said, that would aid the agency in potentially drafting a Supplemental Notice of Proposed Rulemaking.  For more information on this topic, click here. 

FMCSA Announces Call for Applications for the Truck Leasing Task Force: The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced the opening of applications for the Truck Leasing Task Force (TLTF), in consultation with the U.S. Department of Labor. The Task Force is an initiative mandated by the Bipartisan Infrastructure Law and a long-term effort of the Trucking Action Plan. As part of the Plan’s initiatives, the TLTF will evaluate the impacts of commercial motor vehicle (CMV) lease agreements and discuss best practices for future agreements.  For more information, click here. 

How far could the crash-liability chain for autonomous vehicles extend?: A panel at the Truckload Carriers Association’s Truckload 2022 conference convened to discuss and answer questions about who exactly would be the principal litigation target in crash involved possible future rigs piloted largely by automated systems. One panelist said anybody could be held liable, while another said that the question of liability could actually be less nuanced in the future with fully autonomous vehicles in use. Read more here.

There isn’t a shortage of truck drivers — they just don’t want to drive for mega carriers anymore: The widely reported “trucker shortage” could actually be a reallocation, said Jason Miller, associate professor of supply-chain management at Michigan State University. Miller said many drivers have either become owner operators or started working for smaller carriers, rather than work at a mega carrier. Read more here.

Biden nominates Hutcheson to lead FMCSA: President Joe Biden nominated Robin Hutcheson for Administrator of the Federal Motor Carrier Safety Administration (FMCSA) on April 6. If confirmed by the Senate, she’ll be the first FMCSA full-time administrator since Ray Martinez stepped down in October 2019. Read more here.

Truckers are filing coercion complaints with the feds at a record pace: Nearly 500 complaints of coercion had been filed by drivers with the FMCSA’s National Consumer Complaint Database by April 8. If the number of complaints continues to rise at this rate, 2022 will see the most complaints filed since 2016, when the FMSCA first started formally compiling them. If this trend continues, the total number of complaints is projected to be around 1,800, close to double the previous record of 966 in 2019. Read more here.

Just 3 years after 2019’s trucking bloodbath, another is on the way: Freightwaves suspects another downturn in the U.S. truckload market in the near future, possibly one as bad as 2019. The usual surge in outbound truckloads did not happen in March. In fact, shipment volumes were lower than normal.

With an unprecedent number of fleets registered at this time, many of whom have not operated during a downturn, more bankruptcies may be coming. Read more here.

Trucking conditions up in February but projected to turn negative in March: FTR’s Trucking Conditions Index (TCI) rose slightly in February despite the increase in fuel costs, thanks to strong freight rates and an improved freight demand. The TCI increased to 12.06 from January’s 11.46. However, the FTR noted that the record surge in diesel prices during March will likely send the TCI measure into negative territory for the first time since May 2020 once the data is finalized. Read more here.

April 2022 CAB Case Summaries

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

AUTO

Mata v. Argos USA, LLC, 2022 Tex. App. LEXIS 2639, C.A. No. 00089-CV (Tex. Ct. App. Apr. 22, 2022).  Summary judgment in favor of a shipper was upheld on appeal where the appellate court held the shipper was not subject to the FMCSRs because it was not acting as the motor carrier for the given shipment.  The shipper had worked with an independent freight broker, who hired the motor carrier involved in the accident.  All the vetting of the motor carrier was performed by the freight broker without input from the shipper.  The shipper provided no instructions to the motor carrier or its driver other than where to pick up/deliver the load.  The court held the FMCSRs only applied to a “motor carrier,” and as such, the alleged violation of the FMCSRs could not be the basis of liability for the shipper.  Similarly, the court held the Texas Transportation Code, which had adopted most of the FMCSRs, likewise could not create a basis of liability against the shipper.  Last, the court held there was no basis for liability under common law because there was no evidence of control over the motor carrier and its driver by the shipper.

Grant v. BJT Express, Inc., 2022 U.S. Dist. LEXIS 71069, C.A. No. 3:21-cv-2394 (N.D. Ohio Apr. 18, 2022).  Various motor carrier/broker defendants were granted partial judgment on the pleadings and the tort plaintiff’s claim for punitive damages was dismissed where, in the court’s view, the allegations of the complaint merely included conclusory allegations supporting the “conscious disregard” standard required for the award of punitive damages under Ohio law.  The court rejected the plaintiff’s argument that the allegations of the Complaint alleging violation of the FMCSRs and the Ohio CDL manual were sufficient to meet the conscious disregard standard. 

Jackson v. Arka Express, 2022 U.S. Dist. LEXIS 71063, C.A. No. 3:21-cv-2393 (N.D. Ohio Apr. 18, 2022).  In a companion case to the above-cited BJT Express case, the court granted defendant’s motion to dismiss the plaintiff’s negligence per se cause of action, finding that the alleged violation of the FMCSRs, standing alone, was insufficient to support a negligence per se cause of action. It cited numerous other decisions standing for this proposition.  The court also dismissed the punitive damages claim for the same reason expressed in the BJT Express ruling. 

Kozak v. Klikuszewski, 2022 U.S. Dist. LEXIS 72748, C.A. No. 4:21-cv-01609 (M.D. Pa. Apr. 20, 2018).  A motor carrier and driver’s motion to dismiss a punitive damages and recklessness claim was denied under the case authority interpreting the pleading standard in this jurisdiction.  The court reasoned that since the recklessness standard depended upon the state of mind, which was “initially unknowable” at the pleading stage, the court would allow the claims to survive the motion to dismiss.  Further, the court permitted the negligence per se claim premised upon purported violations of the FMCSRs to remain in the case, finding the plaintiffs had alleged enough factual information to survive the motion to dismiss.  However, the court also noted “more likely than not” the plaintiff’s case against the defendants would amount to nothing more than negligence, but it would not dismiss the claims at the pre-discovery phase. 

Hadder v. Dominguez, 2022 Cal. Super. LEXIS 6860, C.A. No. 21STCV38696 (Cal. Super. Ct. March 23, 2022).  A court denied defendant, Enterprise, a demurrer finding that while Enterprise could not be held liable as the owner of an auto under the Graves Amendment, the operative pleading nevertheless alleged negligent entrustment of the vehicle as an alternative theory of liability, which was premised upon Enterprise’s own alleged negligence and as such would not be foreclosed by the Graves Amendment.  

Davis v. G. Allen Equip. Corp., 2022 U.S. Dist. LEXIS 69609, C.A. No. 4:20-cv-49 (E.D.N.C. Apr. 15, 2022).  A motor carrier was granted summary judgment on claim for direct corporate negligence where it admitted its driver was working within the course and scope of his employment with the motor carrier at the time of the accident and thus it would be vicariously liable for his negligence.  The court concluded under North Carolina law, such admission precludes a tort plaintiff from maintaining a separate cause of action for negligent supervision, negligent retention, negligent training, negligent hiring, or negligent entrustment.  As for the punitive damages claim, the court explained North Carolina law prohibits the award of punitive damages premised solely on vicarious liability, but allows punitive damages if the corporation’s officers, directors, or managers participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.  Insofar as the tort plaintiff only alleged punitive damages against the motor carrier premised upon the vicarious liability of its driver, the court granted the carrier’s motion for summary judgment and dismissed the punitive damages claim.  However, the court did find sufficient grounds under the proffered evidence to allow the punitive damages claim against the driver to proceed to trial. 

Bure v. Distrib. Sols., Inc., 2022 U.S. Dist. LEXIS 67371, C.A. No. 4:21-cv-00234 (E.D. Mo. Apr. 12, 2022).  Shipper entitled to summary judgment on vicarious liability claims arising from a motor vehicle accident involving a tractor-trailer hauling the shipper’s product.  Under Missouri law, the court determined the driver was an independent contractor in relation to the shipper, and as such had no ability to control the driver, therefore there was no basis to hold the shipper liable under respondeat superior for the driver’s alleged negligence in relation to the motor vehicle accident.

Choo v. Virginia Transp. Corp., 2022 N.Y. App. Div. 2288 (N.Y. App. Div. Apr. 13, 2022).  Summary judgment in favor of motor carrier and its driver in personal injury action was affirmed on appeal.  The appellate court found the defendants presented evidence establishing the plaintiff was negligent as a matter of law when he failed to yield the right-of-way while attempting to merge in front of the tractor-trailer and that the plaintiff’s negligence was the sole proximate cause of the accident. 

Thayer v. Randy Marion Chevrolet Buick Cadillac, LLC, 2022 U.S. App. LEXIS 9957, C.A. No. 21-10744 (11th Cir. Apr. 13, 2022).  Summary judgment in favor of a car dealership under the Graves Amendment was affirmed on appeal.  The Eleventh Circuit found that all requirements for the Graves Amendment applied, including that the dealership who loaned a vehicle to the alleged-at fault driver while the driver’s vehicle was being repaired “rented” or “leased” the vehicle to the driver.  The court found the consideration forming the basis of the rental or lease was that the dealership only loaned a car when it performed repairs/maintenance upon the owner’s car, for which it charged for those services. 

Madrid v. Annett Holdings, Inc., 2022 U.S. Dist. LEXIS 62285, C.A. No. 1:21-cv-1173 (W.D. Tenn. Apr. 4, 2022).  The Tennessee federal court adopted the “majority position” and held that once an employer admits its employee was acting within the course and scope of his/her employment for the employee and therefore the employer would be vicariously liable for the employee’s negligence, the tort plaintiff may not maintain direct negligence causes of action against the employer for negligent hiring, training, retention, entrustment, etc.

Wilkoski v. B&T Express, Inc., 2022 U.S. Dist. LEXIS 51385, C.A. No. 18-1359 (W.D. Pa. Mar. 22, 2022).  Pennsylvania federal court ruled various “affiliated companies” to a motor carrier could not be liable under a joint venture theory of liability.  The involved tractor was owned by one of the affiliated companies and leased to the motor carrier under a written lease agreement.  The trailer was owned by a separate affiliated company and leased to the motor carrier under a written lease agreement.  There were common shareholders between the various business entities.  However, under the facts, the court found the elements for joint venture under state law were not met and the affiliated companies were entitled to dismissal of the claims against them. 

Patel v. YRC, Inc., 2022 U.S. Dist. LEXIS 51988, C.A. No. 21-cv-2253 (N.D. Ill. Mar. 23, 2022).  A motor carrier’s motion to dismiss negligent hiring, training, supervision, and retention causes of action was granted where the motor carrier admitted in its responsive pleading that the driver was operating within the course and scope of his employment with the motor carrier at the time of the accident such that the motor carrier could be held liable under respondeat superior for the driver’s negligence.  The court, however, reserved the right to amend its ruling should evidence be developed in discovery that called into question the motor carrier’s respondeat superior liability. 

Sanchez v. Robert Heath Trucking, 2022 Kan. App. Unpub. LEXIS 168, C.A. No. 123, 909 (Kan. Ct. App. Mar. 18, 2022).  The Kansas Court of Appeals affirmed the trial court’s grant of summary judgment to motor carrier defendant and its driver where the evidence established the decedent was a pedestrian in the middle of the interstate with THC and LSD in his system at the time of the accident and the evidence supported that the driver of the tractor-trailer could not have reasonably avoided the accident. 

BROKER

LaGrange v. Boone, 2022 La. App. LEXIS 552, C.A. No. 21-560 (La. Ct. App. Apr. 6, 2022).  Summary judgment in favor of freight broker in personal injury tort action arising from an accident was affirmed on appeal with the Louisiana appellate court finding the evidence established the alleged at-fault driver was not employed by the freight broker and therefore there was no basis for vicarious liability claims against the freight broker.  The court noted specifically that while the broker also held carrier authority, the evidence that included a broker-carrier agreement with the company transporting the cargo at the time of the accident established it operated solely as a freight broker in this particular transaction and there was no evidence that the freight broker employed or otherwise had control of the driver, did not pay the driver, and had no employment contract with the driver.  However, with respect to the negligent hiring claim against the broker, the Louisiana appellate court noted the jurisdictional split over the preemptive scope of FAAAA for these types of claims, ultimately finding the safety exception to FAAAA applied and the negligent hiring claim against the broker was therefore not preempted under FAAAA. 

Russ v. Ecklund Logistics, Inc., 2022 U.S. Dist. LEXIS 52314, C.A. No. 19-cv-2719 (D. Minn. Mar. 23, 2022).  A Minnesota federal court denied a tort plaintiff’s motion to amend her complaint to add a claim for punitive damages against a freight broker.  The court specifically found that the proposed amended allegations against the freight broker were merely conclusory and not sufficiently supported by the facts.  Further, the court found the plaintiff’s allegations did not amount to clear and convincing evidence, even if unrebutted, that the freight broker acted with deliberate indifference to a highly probable risk of harm as required to support a claim for punitive damages under applicable state law, and therefore the requested amendment would be futile insofar as it could not withstand a motion to dismiss.  However, the requested addition of a punitive damages charge against the motor carrier employer was permitted.

Aspen Am. Ins. Co. v. Landstar Ranger, 2022 U.S. Dist. LEXIS 49081, C.A. No. 3:21-cv-578 (M.D. Fla. Feb. 3, 2022).  Insurer who was required to cover cargo claim arising from stolen load of cargo sued freight broker who arranged for the transportation.  The insurer plaintiff argued the freight broker’s actions or inactions led to the load being given to a fraudulent motor carrier.  The court ruled against the insurer plaintiff, finding its claims were preempted by FAAAA.  The court rejected the insurer plaintiff’s argument that the safety exception to FAAAA preemption applied to escape the broad preemptive scope under FAAAA, noting most courts that have recognized the safety exception have done so in cases involving alleged personal injury not cargo loss or damage. 

CARGO

Tobias v. Smith, 2022 U.S. Dist. LEXIS 69475, C.A. No. 21-11736 (D. Mass. Apr. 15, 2022).  A pro se plaintiff’s complaint against the CEO of FedEx, which sought $200 billion in damages over a lost package was dismissed.  The court held it lacked personal jurisdiction over the defendant. The court also denied the plaintiff’s motion to amend the complaint, finding any amendment to be futile insofar as plaintiff’s state law causes of action were preempted by the Carmack Amendment.

Ahe v. 1-800-Pack-Rat, LLC, 2022 U.S. Dist. LEXIS 62931, C.A. No. 3:21-cv-2526 (N.D. Tex. Apr. 5, 2022).  Court granted interstate household goods carrier’s motion to dismiss various state law causes of action as preempted by the Carmack Amendment.  The plaintiff contracted with the carrier to provide a storage container for household goods, temporary storage of the loaded container, and ultimate transportation of the container from Alabama to Texas.  Evidently, while en route the lock on the container was removed and various personal items removed that were never recovered.  The plaintiffs filed suit against the carrier alleging breach of contract, common-law fraud, negligent misrepresentation, fraud by nondisclosure, conversion, violations of Texas Deceptive Practices Act, breach of duty of good faith, and breach of prompt payment statute.  After removal, the carrier moved to dismiss the state law causes of action as preempted by the Carmack Amendment.  The court agreed with the carrier, finding the Carmack Amendment applied because the contract was for interstate transport and preempted the breach of contract, common law fraud and negligent misrepresentation, fraud by non-disclosure, and conversion causes of action and dismissed those with prejudice.  With respect to the DTPA claim, the court acknowledged there was a narrow class of claims for unfair trade practices that would not be preempted by the Carmack Amendment, but that the plaintiff’s claims as currently pled did not fall within that narrow exception.  Accordingly, the court dismissed this claim without prejudice.  Similarly, the court found that the breach of duty of good faith and breach of the prompt payment statute arose from state statutes governing insurance, which fell outside of Carmack’s preemptive scope—these were also dismissed without prejudice.  Last, with respect to the claim for attorneys’ fees, the court held any attorneys’ fees related to the damage caused by the interstate shipment of goods would be preempted by the Carmack Amendment, but any claims for attorneys’ fees unrelated to the damage would not.  The claim for attorneys’ fees was accordingly dismissed without prejudice. The court granted the plaintiff 30 days to file an Amended Complaint alleging a Carmack Amendment claim and/or replead with additional factual support the other causes of action not preempted by the Carmack Amendment. 

EMCO Corp. v. Miller Transfer & Rigging Co., 2022 U.S. Dist. LEXIS 53592, C.A. No. 5:19-cv-2418 (N.D. Ohio Mar. 24, 2022).  In a cargo damage case arising from an export shipment from the United States to Austria, the court had to determine whether COGSA or the Carmack Amendment applied, and whether the plaintiff had made the requisite evidentiary showing entitling it to relief for the alleged cargo damage under the applicable liability regime.  The court first found that the Carmack Amendment applied, specifically noting there were separate bills of lading issued for various legs of the transport, the ocean bill of lading only referenced transport from the Port of Baltimore to the Port in Austria and did not reference any of the transport in the United States prior to arriving at the Port of Baltimore, and that the ocean bill of lading did not reference the “original pickup point of the cargo.”  Since the defendant in the case was only involved in one leg of the domestic transport ending in the Port of Baltimore and that the plaintiff failed to establish the goods were damaged upon arrival at the Port of Baltimore, it failed to establish a prima facie entitlement to damages under the Carmack Amendment. 

Law Office of Guy Levy v. Moishe’s Moving Sys., 2022 U.S. Dist. LEXIS 51542, C.A. No. 21-cv-1212 (S.D. Cal. Mar. 22, 2022).  A plaintiff’s lawsuit alleging twelve state law causes of action arising from purported loss of cargo shipped from New York to California was dismissed without prejudice on the basis of Carmack Amendment preemption, but the court granted the plaintiff leave to amend to add a Carmack Amendment claim. 

COVERAGE

West Bend Mut. Ins. Co. v. Vaughan’s Fetch, Inc., 2022 IL App. (5th) 210168-U, C.A. No. 5-21-0168 (Ill. App. Ct. Apr. 5, 2022).  Lower court’s grant of summary judgment in favor of injured tort plaintiff and against the insurer was reversed on appeal.  Multiple claims were filed against the insurance policy arising from a multi-vehicle accident.  The insurer filed an interpleader action seeking to deposit the $1 million liability limits under the policy into the court for distribution to the numerous claimants with competing claims.  One claimant filed a counterclaim to the interpleader, alleging that the insurance policy did not unambiguously limit the coverage available under the policy to $1 million per accident and argued that the claimants could “stack” limits resulting in greater than $1 million in liability limits available for the claims arising from the accident.  The at-issue policy covered a fleet of 34 vehicles and trailers and “informed the policyholder that the schedule of coverages and covered autos could be found in Item Two of the declarations.”  Section II of the Motor Carrier Coverage Form addressed liability coverage for covered autos and provided as follows:

Section II—Covered Autos Liability Coverage

A.        Coverage

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance, or use of a covered auto.

C.        Limit of Insurance

Regardless of the number of covered “autos”, “insureds”, premiums paid, claims made, or vehicles involved in the “accident”, the most we will pay for the total of all damages and “covered pollution cost or expense” combined resulting from any one “accident” is the Limit of Insurance for Covered Autos Liability Coverage shown in the Declarations. 

            The Declarations Page listed symbol 61 for “any auto” coverage and showed the limit of liability for Covered Autos is $1 million each accident.  The declarations page listed the same $1 million per accident limit next to each of the various autos specifically described on the Declarations Page.  On appeal, the Illinois appellate court found that the Limit of Liability provision unambiguously limited insurance coverage under the policy to $1 million per accident, regardless of the number of insureds or autos involved and when viewed in conjunction with the rest of the policy clearly limited the insurer’s coverage obligations to $1 million per accident.    

Penn-America Ins. Co. v. Tarango Trucking, LLC, 2022 U.S. App. LEXIS 8984, C.A. No. 21-10749 (5th Circ. Apr. 4, 2022).  The Fifth Circuit Court of Appeals reversed the trial court and held that an insurer had a duty to defend its insured in a case arising from a fatal accident occurring on the insured’s property.  The tort plaintiff drove a tractor-trailer assigned to him by his employer (not the insured) to the insured’s property where he parked the vehicle and began to inspect and offload the heavy equipment from the trailer.  The tort plaintiff unhitched the trailer and began to use a hydraulic lift, but while doing so, the tractor’s braking system failed and pinned the tort plaintiff between the tractor and the trailer resulting in fatal injuries.  The allegations against the insured included that it maintained a dangerous slope in the area where the accident occurred.  The insurer provided a defense to the insured pursuant to a reservation of rights but simultaneously filed a declaratory judgment action.  The insurance policy contained an exclusion for coverage for “bodily injury” or “property damage” arising out of the ownership, maintenance, or use by any person or entrustment to others, of any aircraft, auto, or watercraft.  The provision provided “use” includes operation and loading and unloading.  However, an exception to the exclusion included “parking an auto on, or on the ways next to, premises you own or rent provided the auto is not owned by or rented or loaned to you or the insured.”  While the court agreed that the auto exclusion applied, it also found the exception restored coverage and obligated the insurer to provide a defense to its insured in the personal injury lawsuit.  The court held it was premature to determine any duty to indemnify. 

McNamara v. Gov’t Employees Ins. Co., 2022 U.S. App. LEXIS 9090, C.A. No. 20-13251 (11th Cir. Apr. 5, 2022).  The Eleventh Circuit was asked to address whether a consent judgment between a tort plaintiff and an insured for an amount in excess of insurance coverage available under the insured’s insurance policy can form the basis of a third-party insurance bad faith claim under Florida law.  The court found that it could under numerous prior Florida authorities.  In so ruling, the court found this rule would not incentivize collusion because “a consent judgment will be enforced against the insurer only to the extent that the judgment itself is reasonable in amount and untainted by bad faith on the part of the insured.” 

Travelers Prop. Cas. Co. of Am. v. TT Club Mut. Ins. Ltd., 2022 U.S. Dist. LEXIS 60232, C.A. No. CV419-231 (S.D. Ga. Mar. 31, 2022).  In an insurance coverage priority dispute between insurers, the Georgia federal court reiterated a number of important rules for insurance contract interpretation under Georgia law.  This involved a personal injury lawsuit arising from a tractor-trailer accident on I-16 in Georgia and involving a tractor insured by Great West and an intermodal container insured by Travelers under two separate policies and by TT Club on a third-policy.  The personal injury lawsuits were settled at mediation for a combined total of $6 million, with $1 million coming from Great West and the remaining $5 million coming from TT Club and Travelers subject to their right to seek contribution from each other.  Travelers thereafter brought a declaratory judgment action seeking a determination of coverage and respective rights and obligations with respect to the $5 million settlement funding.  The court first held it lacked jurisdiction over Travelers petition for declaratory relief because Travelers had already paid out the settlement funds thereby rendering its request for declaratory judgment moot, though the court did have jurisdiction over TT Club’s counterclaim for contribution.  Next, the court addressed choice of law for interpretation of the various insurance policies.  As a court sitting in diversity, it applied Georgia’s substantive choice of law rules, which hold if the contract contains no choice of law then Georgia applies the rule of lex loci contractus (i.e. governed by the state where the contract was made).  However, “Georgia courts also adhere to a unique caveat to their choice of law rules, the presumption of identity rule” under which application of a foreign state’s laws is limited to a foreign state’s statutes or cases interpreting statutes.  Since the two Travelers policies were issued in Virginia, but Virginia had no statute addressing the issues, Georgia law applied to their interpretation.  With respect to the TT Club Policy, it included a choice of law provision providing that English law applied.  However, the court held Travelers was not bound by the choice of law provision in the TT Club policy because it was not a signatory to that contract.  As such, the TT Club policy was also interpreted pursuant to Georgia law.  Applying Georgia law to all three at-issue policies, the court then determined under the relevant insurance provisions one Travelers policy was primary, the other Travelers policy was excess, and the TT Club policy was primary and applied a pro-rata distribution of the $5 million settlement amount and defense costs incurred in defending the underlying tort action between the two primary policies.   

Mabin v. Artisan & Truckers Cas. Co., 2022 Wisc. App. LEXIS 244, Appeal No. 2021AP188 (Wis. Ct. App. Mar. 24, 2022).  Wisconsin Court of Appeals affirmed trial court’s grant of summary judgment to putative UM insurer under tort plaintiff’s personal auto policy, finding that the other vehicle (a tractor-trailer) was not “uninsured” because the MCS 90 endorsement obligated the insurer of the tractor-trailer to satisfy any judgment up the amount of the federal financial responsibility requirements.  Accordingly, the tort plaintiff could not obtain UM benefits under her personal lines policy. 

WORKERS COMPENSATION

Waziry v. All. Express, LLC, 2022 Pa. Commw. Unpub. LEXIS 130, C.A. No. 859 C.D. 2021 (Pa. Commw. Ct. Apr. 12, 2021).  In a workers’ compensation claim arising from injuries to a truck driver, the Pennsylvania court determined it had jurisdiction over the claim even though the accident occurred outside of the Commonwealth of Pennsylvania.  The court found that the driver logs established the driver began and ended his trips at the motor carrier’s Pennsylvania location and therefore the Pennsylvania terminal was the driver’s “home base.”  The driver’s driving assignments were provided to him at that location, he had to return his driving logs to the Pennsylvania terminal, the driver received his paychecks at the Pennsylvania terminal, and all maintenance upon the equipment was performed at that terminal.  From this, the court determined Pennsylvania had jurisdiction over the claim.   

SAIF Corp. v. Ward, 2022 Ore. LEXIS 214, C.A. No. SC S068179 (Or. Mar. 24, 2022).  A truck driver who leased a tractor from a trucking company under a written lease agreement that provided the driver could not use the truck to perform work on behalf of any other company was determined to be a “subject worker” entitled to workers compensation benefits from the trucking company under Oregon law. 

Cunningham v. Kroger Ltd. P’ship, 2022 Ky. App. 24, C.A. No. 2021-CA-0704 (Ky. Ct. App. Mar. 25, 2022).  The Kentucky Court of Appeals held that under Kentucky law, an “up-the-ladder employer” was entitled to rely upon the workers’ compensation exclusivity defense in defense of a civil lawsuit arising out of a work-related injury for which the employee obtained workers compensation benefits from a downstream employer.  The employee worked for a motor carrier and part of his responsibilities were delivering milk to Kroger locations.  He was injured when a dock door fell on him at one of the Kroger locations.  He filed for and was granted workers’ compensation benefits from the motor carrier.  He then sued Kroger in a civil lawsuit.  The trial court granted summary judgment to Kroger based upon workers’ compensation exclusivity.  Under the foregoing “up-the-ladder” rule, the appellate court affirmed summary judgment in favor of the Kroger. 

Spring is upon us!

March Madness is almost complete, and Spring (Astronomical) officially kicked off on March 20th!  In some areas it may not feel like Spring, but rest assured, it will be here soon.  This is an exciting time of year.  Regardless, if we’re looking forward to the start of the baseball season or other warm weather activities, we hope everyone gets a chance to enjoy the nicer weather!     

We hope to see a number of you in person at the IMUA Annual Meeting the last week of April.   

Have a great month! 

CAB Live Training Sessions

Tuesday, April 12h @ 12p EST: Sean Gardner will present an overview of CAB’s MC Advantage resource.  During this presentation, he will review and discuss the various tools specifically available to motor carriers.  This CAB offering is picking up steam and we encourage you to learn about it by attending this session.  Click here to register. 

Tuesday, April 19th @ 12p EST: Mike Sevret will present on CAB Customization. There are numerous areas within CAB where you can customize content to your individual needs.  CAB Report settings and features, profile settings, violation tracking, radius buckets, & much more!  An overview of all the settings and preferences within CAB. Click here to register. 

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

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CAB’s Tips & Tricks: What is a Severe Violation?

Occasionally, we’re asked what exactly constitues a Severe Violation as detailed in the CAB Report®?  Severe violations are listed toward the top of the CAB Alerts section on the CAB Report® landing page or General Tab (see screen grab below).   

With the example below, this motor carrier has 6 severe violations in the prior 36 months.  If you want to see the 6 severe volations specific to this motor carrier, click on the words and a Detail Report will pop up.  If you want to see the list of potential severe violtions, you can click on the blue question mark to the right and it will open the list of roughly 55 volations that are considered severe.  That list of 55 severe violations has been developed over the years in conjunction with our users to identify the violations that our insurance carrier clients want to be made aware of.  Anything from Operating without proper motor carrier authority to operating a CMV while texting to speeding in a construction/work zone to reckless driving to operating an out-of-service vehicle is contained in the severe violations list. 

As noted previously, this list has been developed over the years via input by our users.  If you come across a violation you feel should be included in this list, please send an email to cab_customer_service@cabadvantage.com including the violation code and description.  The CAB team will consider its incorporation and it may be included in the future. 

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You are encouraged to reach out via phone, email or via the “Contact Us” button in the My Account area of the menu.

THIS MONTH WE REPORT

FMCSA Updates Electronic Logging Device Frequently Asked Questions: To provide additional guidance on the ELD regulations, the Federal Motor Carrier Safety Administration provided a number of new FAQs and updated the answers to a number of others.  For the latest answers to the most common ELD FAQs, click here. 

CargoNet: 2021 cargo theft numbers down 15%: Cargo theft across the United States and Canada for 2021 down by 15%, compared to year-over-year activity.  CargoNet reported 1,285 supply chain risk events across the United States and Canada in 2021, a 15% decrease in activity year-over-year. The average value stolen per theft was $172,340, and the total value stolen was $57.9 million. California is the sate with the most reported cargo thefts, with a 13% year-over-year increase. Fifty-five percent of thefts involved at least one heavy commercial motor vehicle, and there was a 34% year-over-year increase in electronic thefts and attempted thefts. Read the full article here.

Trucking in 2022: Driver hours, new entrants “surge”: The same high consumer demand and shuffling driver supply that shaped the freight market in the last half of 2021 are still notable themes in 2022. Uber Freight’s “Market Insights Report” also records a huge number of new trucking registrations and many drivers shifting from long haul to local trucking. Read more here.
 
FMCSA removes convicted violations reporting requirement for drivers: The FMCSA is set to remove the requirement that truck drivers submit an annual list of their traffic violation convictions to their employers. This rule is being removed due to its repetitiveness of another FMCSA requirement that motor carrier to make an annual inquiry to obtain the motor vehicle record (MVR) for each driver it employs from every state in which the driver holds or has held. This change is set to take place on May 8. Read more here.
 
Accident reporting: change to regulatory guidance concerning the use of the term “medical treatment”: The FMCSA revises its regulatory guidance for the use of the term “medical treatment” for the purpose of accident reporting. The change states that an x-ray examination is a diagnostic procedure and should no longer be considered “medical treatment” in determining whether a crash should be included on a motor carrier’s accident register. For more information, click here.
 
DTO proposes oral fluid drug testing method: The U.S. Department of Transportation is proposing an amendment of the transportation industry drug testing program procedures regulation that will add oral fluid testing to the program. According to the DOT, this move is designed to “give employers a choice that will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the program. Read the full list of proposed changes here. The federal register is also available here.
 
Canada further delays its ELD mandate enforcement: Canada has postponed the implementation of its electronic logging device mandate to Jan.1, 2023. This is not the first delay for the enforcement, which was originally set to start in June 2021. This delay is meant to give fleets more time to choose an implement a certified ELD. Read more here.
 
US job growth includes trucking industry: A robust 678,000 jobs were added to the job market in February, and the trucking industry has a total of 1,549,100 jobs. The industry has added around 5,400 jobs a month since the start of 2021. Read more here.

FreightWaves Ratings introduces first-ever truck driver pay guide: The first-of-its-kind FreightWaves Ratings Driver Pay Guide has been introduced, compiling driver compensation and incentive data from nearly 100 fleets. The free guide states that $58,000 for brand-new CDL holders, with an average sign on bonus of $3,000. This data can be filtered by U.S. region, as well. Read more here.
 
White House Requests Budget Increase for FMCSA: The White House’s proposed $5.8 trillion fiscal 2023 budget seeks to increase funding for federal truck drivers. The White House is requesting $367.5 million for the FMCSA’s safety operations programs, and the budget proposal for the agency’s safety grants division is $506.1 million. For the 2022 fiscal year, the safety operations and programs received $360 million and the safety grants division received $496 million. Read the full story here.

March 2022 CAB Case Summaries

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

AUTO:

Handley v. Werner Enters., 2022 U.S. Dist. LEXIS 47354, C.A. No. 7:20-cv-00235 (M.D. Ga. Mar. 17, 2022).  A motor carrier’s motion for summary judgment in a case involving a rear-end collision into the back of the CMV was denied because the court found fact issues remained on whether the driver of the CMV operated the CMV in a negligent or unsafe fashion causing the accident.  There was a factual dispute as to whether: (1) the CMV had its turn signal on; (2) what portion of the CMV was in the center (turning) lane versus the left-most lane of travel; and (3) whether the CMV was moving or parked.  Viewing the evidence most favorably to the non-moving party (the plaintiff), the court found there was sufficient evidence from which a jury could find the CMV driver failed to exercise due care in operating the CMV.  This was despite the investigating officer finding the plaintiff was following too closely, undisputed evidence that the plaintiff was exceeding the speed limit, and undisputed evidence that plaintiff had just swapped lanes before the collision, could not see around the vehicle she was passing, and did not apply her brakes or make any evasive maneuver before the collision.  Any contributory negligence by the plaintiff was determined to be a question of fact for the jury to decide. 

Gibson v. AMGUARD Ins. Co., 2022 U.S. Dist. LEXIS 45747, C.A. No. 3:21-cv-03249 (W.D. La. Mar. 14, 2022).  The Louisiana federal court granted partial summary judgment to a motor carrier and its insurer, dismissing the claims of negligent hiring, training, supervision, retention, and entrustment of the driver where the motor carrier stipulated that the driver was, as the time of the accident, in the course and scope of his employment with the motor carrier.  Citing prior rulings, the court explained “[w]hen the employer stipulates that the employee is in the course and scope of employment with the employer at the time of the accident, the employer becomes vicariously liable for the employee’s fault, and the allocation of fault to the employer no longer matters.  The employer will be made to pay for plaintiff’s damages regardless of whether it is found liable vicariously or directly.  No matter how much the employer is at fault in hiring, training, or supervising an employee, the employer does not proximately cause damage to plaintiff unless the employee is at fault.” 

Woods v. Wal-Mart Transp., 2022 U.S. Dist. LEXIS 43767, C.A. No. 1:20-cv-3977 (N.D. Ga. Mar. 11, 2022).  A motor carrier and its driver were granted summary judgment on the claim for litigation expenses in plaintiff’s personal injury tort action.  Under the applicable Georgia statute, a party may recover litigation expenses where the defendant has acted in bad faith, been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.  The plaintiff maintained it was entitled to recovery of litigation expenses because there was no bona fide controversy as to the defendant’s liability for the collision. The plaintiff pointed to the police report taken immediately after the incident in which the operator of the tractor-trailer indicated he missed his turn, started backing up, did not see the plaintiff’s car and “hit him.”  However, the court noted photographs taken immediately after the incident, as well as the tractor-trailer driver’s testimony in which he disputed he struck the plaintiff’s vehicle, created a fact issue.  In light of this evidence, the court found there was a legitimate dispute as to liability and therefore an award of litigation expenses under the statute was not appropriate.   

Houck v. WLX, LLC, 2022 U.S. Dist. LEXIS 43185, C.A. No. 3:19-cv-275 (M.D. Pa. Mar. 10, 2022).  A motor carrier’s motion for summary judgment was denied on the basis there were numerous factual disputes for resolution by the jury at trial.  The decedent was struck in the head with a ratchet/winch that crashed through his windshield while driving.  After the accident, a flatbed trailer ratchet/winch was located in the cab of the decedent’s truck.  Video surveillance depicted the motor carrier’s truck being driven on the same road as the decedent’s vehicle around the time of the accident.  It was undisputed there was no witness to support the estate’s theory of events or that the ratchet/winch fell from the motor carrier’s trailer.  The testimony further indicated there were no records of repairs to the at-issue trailer for missing or damaged winches/ratchets/stops, though no deponent could say how many were on the trailer at any given time.  An investigating officer as well as a retained expert for the estate determined the ratchet/winch/stop was the same the kind used on the motor carrier’s flatbed trailer. The officer surmised that the ratchet/strap fell from the motor carrier’s trailer and bounced along the highway before crashing through the windshield of the decedent’s vehicle.  On this record, the court found there was a jury question on whether the winch/ratchet/stop came from the motor carrier’s trailer.  Specifically, it found the credibility of the evidence was for jury consideration, but the record was sufficient to create a triable issue of fact. 

Rivera v. Transam Trucking, 2022 Cal. App. Unpub. LEXIS 1376, C.A. No. E075289 (Ca. Ct. App. Mar. 8, 2022).  In an unpublished opinion, the Court of Appeal of California largely affirmed the trial court’s grant of summary judgment to a motor carrier on respondeat superior and negligent hiring, supervision, and entrustment causes of action.  The court held the undisputed evidence established at the time of the accident the driver had been “off duty” for two days and was on a purely personal errand to/from a grocery store.  As to the negligent hiring, supervision, and entrustment claims, the undisputed evidence established the motor carrier investigated the driver’s background and driving record prior to hiring him and found no reason to believe he was unqualified, unfit, incompetent or otherwise posed a particular risk of harm to the public while driving a CMV.  However, the appellate court found the trial court failed to address the owner/permissive user claim under California state law—i.e. that as the owner of the involved CMV the motor carrier could be held liable pursuant to statutory limits—and accordingly, complete dismissal of the plaintiff’s complaint was improper. 

Golden Peanut Co. v. Miller, 2022 Ga. App. LEXIS 116, C.A. No. A21A1269, A21A1270 (Ga. Ct. App.  Mar. 4, 2022).   Court of Appeals of Georgia reversed the trial court’s denial of trailer owner and its parent company’s motion for summary judgment in a personal injury lawsuit involving shipper liability claims. Golden Peanut contracted with a motor carrier/broker (Larry Wood Trucking) to broker loads of peanuts for Golden Peanut during the harvest season.  Larry Wood Trucking contracted with Lloyd White Trucking to haul peanuts.  A representative of Golden Peanut gave White information on farmers who had peanuts ready for pick up each day.  White, in turn, would coordinate the pick-up and deliveries each day with the individual farmers.  Golden Peanut did not provide specific routes for White or White’s drivers to use when delivering the peanuts.  After picking up the peanuts at the farm, White would transport them using Golden Peanut’s specialty trailer to Golden Peanut’s facility.  Occasionally, Golden Peanut would provide White with specific pick up/drop off times, but otherwise did not control White’s work schedule.  Under these facts, the Georgia appellate court held there was no basis for vicarious liability of Golden Peanut for the alleged negligence of White.  Further, since no lease agreement existed between Golden Peanut or its parent company and White, neither could be the statutory employer of White under the FMCSRs so as to make them vicariously liable. 

Lewis v. Hirschbach Motor Lines, Inc., 2022 U.S. Dist. LEXIS 39945, C.A. No. 3:20-cv-1355 (S.D. Ill. Mar. 7, 2022).  Motor carrier obtained summary judgment on negligent hiring, training, supervision, retention and/or entrustment causes of action where the motor carrier admitted the driver was acting within the scope of his employment rendering the motor carrier vicariously liable for the negligence of the driver.  Under Illinois law, the normal rule is that a plaintiff injured in a motor vehicle accident cannot maintain a claim for negligent hiring, negligent retention, or negligent entrustment against an employer where the employer admits responsibility for the conduct of the employee under respondeat superior.  However, an exception exists for situations in which the employer’s culpability is greater than that of the employee (i.e. willful and wanton conduct by the employer).  The court found the plaintiff alleged and submitted no proof of willful or wanton conduct by the motor carrier employer.  Similarly, the court dismissed the plaintiff’s claim for gross negligence and punitive damages on the same basis.

Whittley v. Kellum, 2022 U.S. Dist. LEXIS 42749, C.A. No. 4:20-cv-00929 (E.D. Tex. Mar. 10, 2022).  Negligence, negligent entrustment, and respondeat superior claims against a lessor of a tractor-trailer were dismissed on summary judgment.  The court found that “mere ownership of a vehicle is not conclusive to demonstrate entrustment” and that plaintiff came forward with no evidence giving rise to genuine issue of material fact that the lessor exercised control over the location of or driver of the tractor-trailer at the time of the accident.  As such, the negligent entrustment claim was dismissed.  Similarly, since the lessor exercised no control over the manner and method by which the driver performed his work, there was no basis for vicarious liability.  Last, with respect to the negligence claim, the court held it would be unreasonable to require the owner/lessor of a vehicle to train and supervise its lessee’s employees.  The court did not mention the Graves Amendment in its analysis. 

Clark v. Whaley, 2022 U.S. Dist. LEXIS 42381, C.A. No. 1:20-cv-300 (S.D. Ohio Mar. 10, 2022).  Motor carrier and its driver were granted summary judgment in CMV on pedestrian accident where the undisputed evidence established: (1) decedent was walking in the lane of travel on an Interstate at night, while wearing all black clothes; (2) CMV driver was not speeding: (3) CMV driver was lawfully in her lane of travel; (4) decedent had consumed four alcoholic drinks some time before the accident; and (5) there was no evidence to suggest CMV driver had time to avoid striking pedestrian.  In so holding, the court rejected that the plaintiff’s retained accident reconstructionist report created any material issue of disputed fact.

McEntyre v. Sam’s East, Inc., 2022 Ga. LEXIS 52, C.A. No. S21Q0909 (Ga. Mar. 8, 2022).  The Supreme Court of Georgia, answering certified questions from the federal district court, held that a Georgia statute relating to load securement could form the basis of tort liability of anyone assisting with the loading of items into or onto a vehicle.  A customer purchased a mattress and box springs from Sam’s Club and two Sam’s Club employees assisted the customer in placing the two items in the bed of the plaintiff’s truck.  A factual dispute existed as to whether the Sam’s Club employees also tied down the items.  After leaving the store, one of the mattresses fell from the truck bed and onto the roadway.  The plaintiff’s vehicle then struck the mattress while still in the roadway, resulting in alleged personal injuries.  The court clarified that ordinary negligence principles, as opposed to strict liability principles, applied in determining whether the loader exercised appropriate care (i.e. there could be situations where an items comes loose, but does not create a basis for tort liability).  In the instance of someone assisting the operator of a vehicle in loading or securing an item, but who is not themselves operating the vehicle, the court explained “a defendant who is not an operator of the vehicle but assists in loading can only be liable for failing to securely fasten the load in light of the reasonable foreseeable ways in which the load will be transported on  public road.” 

Lara v. Power of Grace Trucking, LLC, 2022 U.S. Dist. LEXIS 35821, C.A. No. 20-cv-00010 (W.D. Tex. Jan. 4, 2022).  The trial court granted summary judgment to motor carrier on negligent hiring, training, supervision, retention and monitoring and dismissed the plaintiff’s claims for gross negligence and punitive damages.  In support of their claim, the plaintiffs alleged the motor carrier hired the driver despite him not having a valid driver’s license and failing to verify driver qualifications or experience.  The court explained “[i]n Texas, however, the law is clear that a gross negligence claim in the context of negligent hiring or entrustment must be supported by more than a finding that the driver was unlicensed or inexperienced.”  Similarly, a failure to inquire into the employee’s driving history is insufficient to establish entitlement to punitive damages.  Finding that the motor carrier did not have any knowledge of the driver’s incompetence or habitual recklessness, punitive damages were not recoverable. 

BROKER:

Miller v. Costco Wholesale Corp., 2022 U.S. Dist. LEXIS 30504, C.A. No. 3:17-cv-00408 (D. Nev. Feb. 22, 2022).  A Nevada federal court denied a broker’s motion for summary judgment on a negligent hiring cause of action.  Here, the broker contracted with an unrated motor carrier and the motor carrier’s driver was subsequently involved in a rollover accident resulting in the plaintiff striking the overturned tractor-trailer.  The court found that a reasonable jury could determine the broker should have identified and considered several “red flags” concerning the motor carrier requiring additional investigation and vetting, including: (1) the broker previously contracted with a prior motor carrier owned by the same individual, who had its authority permanently revoked by the FMCSA several years prior; (2) the FMCSA application for the new company was in the owner’s father’s name, which shared the same last name as the owner of the former company; (3) phone numbers and email addresses were the same between the two companies in the broker’s database; and (4) both individuals associated with the two companies were listed as points of contact in the broker’s database.  The court went on to hold that a reasonable factfinder could conclude the accident was reasonably foreseeable harm of the broker’s unreasonable screening measures.  Finding these fact issues, summary judgment was denied.  It is worth noting that this is the underlying tort case in the matter currently before the United States Supreme Court on a Petition for Writ of Certiorari wherein the broker requests the United States Supreme Court reverse a Ninth Circuit Court of Appeals decision and hold FAAAA preempts this theory of broker liability. 

CARGO:

BMW Auto Sales, Inc. v. Red Wolf Logistics, LLC, 2022 U.S. Dist. LEXIS 36493, C.A. No. 1:21-cv-14647 (D.N.J. Mar. 2, 2022).  A New Jersey federal court remanded a case stemming from alleged cargo damage, finding it lacked subject matter jurisdiction over the dispute.  The plaintiff purchased a vehicle from an auto auction in Grand Prairie, Texas and contracted with a motor carrier to ship the vehicle from the auction to Houston, Texas.  The vehicle allegedly sustained $3,266.99 in damages while being transported.  The plaintiff filed suit against the motor carrier in New Jersey state court alleging professional negligence, breach of contract, and consumer fraud under New Jersey’s Consumer Fraud Act.  The defendant motor carrier removed the case to federal court, alleging it had jurisdiction pursuant to the Carmack Amendment and FAAAA.  The court rejected Carmack formed a basis for federal court jurisdiction because: (1) the transport was purely intrastate; and (2) even if Carmack applied, then all non-Carmack claims would be preempted and the amount alleged was below the $10,000 jurisdictional threshold under 28 U.S.C. § 1337(a).  As for potential preemption under FAAAA, the court noted there was no authority establishing FAAAA completely preempted state law causes of action, and therefore was not a basis for federal jurisdiction standing alone. 

Thompson Tractor Co. v. Daily Express, Inc., 2022 U.S. Dist. LEXIS 33409, C.A. No. 2:20-cv-02210 (C.D. Ill. Feb. 25, 2022).  Plaintiff purchased and agreed to deliver an industrial-grade generator manufactured by Caterpillar, to a third-party purchaser.  Plaintiff then contracted with a motor carrier to transport the generator from the Caterpillar facility in Illinois to the third-party purchaser’s jobsite in Alabama.  The generator was delivered to the motor carrier in good working order and condition as evidenced by the motor carrier driver’s signature on the bill of lading issued by Caterpillar.  While en route, the tractor-trailer left the roadway requiring a tow truck to assist in placing the tractor-trailer back onto the roadway.  While the consignee/third-party purchaser did not initially note any damage to the generator upon delivery, damage to the generator’s fuel tank was noted three days later.  The generator was subsequently transported back to the Caterpillar for repairs and returned at a cost exceeding $200,000.  Plaintiff filed a complaint against the motor carrier alleging a single Carmack Amendment claim.  The motor carrier challenged that plaintiff had standing to sue under the Carmack Amendment, but the court rejected this argument under the line of cases interpreting “person entitled to recover under the bill of lading.”  The court also rejected the motor carrier’s argument for dismissal because plaintiff’s insurer had already paid for the loss and therefore was the real party in interest; the court held that a Rule 17 objection was required before dismissing a complaint on these grounds, which the motor carrier was now time-barred from raising. 

Barker v. EAN Holdings LLC, 2022 N.Y. Misc. LEXIS 524, C.A. No. 159482/2018 (N.Y. Sup. Ct. Feb. 4, 2022).  A tort plaintiff was not permitted to amend his complaint to add a claim of negligent entrustment against a lessor of a motor vehicle.  Plaintiff contended the lessor should have inquired into the status of the driver’s restricted license before renting it the vehicle.  After citing the principle behind the Graves Amendment, the court agreed with the lessor that the proposed amendment lacked merit because the plaintiff set forth no legal duty upon on the lessor other than to check for a facially-valid driver’s license, which the driver presented.  Further, to the extent the employees of the lessor did not inquire about the specific restriction, the court held a violation of internal policies, standing alone, does not constitute actionable negligence.  Last, the plaintiff failed to present any other evidence establishing the lessor knew or should have known the driver was incapable of operating a motor vehicle in a safe and careful manner. 

COVERAGE:

Liberty Mut. Fire Ins. Co. v. Vafi, 2022 Cal. App. Unpub. LEXIS 1565, C.A. No. B312094 (Cal. Ct. App. Mar. 15, 2022).  In an unpublished opinion, a California appellate court affirmed a lower court’s affirmance of an arbitration UIM award despite there being a dispute as to the amount of UIM coverage available.  Under the terms of the policy, arbitration was limited to determining the amount of UIM damages the insured could recover.  Expressly omitted from the arbitration’s consideration was the scope of the insurer’s UIM coverage under the policy.  Ultimately, the arbitrator awarded $335,983.42 in UIM benefits to the insured.  The insurer tendered a check to the insured for $271,335.66, which reflected the arbitrator’s award minus certain offsets the insurer maintained it was entitled to for payments previously made for medical benefits and for the amount recovered by the at-fault’s liability coverage.  The insurer filed a petition in the trial court to correct and confirm the arbitration award, accounting for the offsets.  The trial court denied the insurer’s request and confirmed the arbitration award in judgment, finding the insurer had not provided any authority for the trial court’s power to modify an arbitration award on an issue that was not actually arbitrated.  The appellate court affirmed the trial court’s determination it lacked authority under the applicable state statute to weigh in on the issue of coverage and offsets, which was not adjudicated during the arbitration. 

Wesco Ins. Co. v. Prime Prop. & Cas. Ins., Inc., 2022 U.S. Dist. LEXIS 43516, C.A. No. 20-cv-9067 (S.D.N.Y. Mar. 11, 2022).  A New York federal court declined under the federal abstention doctrine to weigh in on an insurance coverage declaratory judgment action involving a dispute between an insurer having an MCS 90 endorsement on its policy (Prime) and a UIM insurer (Wesco).  Prime initially brought a declaratory judgment action against Wesco in Utah state court seeking a declaration the Prime policy provided no coverage for the accident or alternatively that the motor carrier was required to reimburse Prime for any payments made.  Following that, the plaintiff brought a personal injury action against Prime’s insured in New York state court.  Thereafter, Wesco brought its own declaratory judgment action in New York federal court seeking a declaration that Prime’s denial of coverage was invalid and violates New York traffic law and that Prime’s duty to defend and indemnify is primary to that of Wesco.  Citing the pending Utah state court declaratory judgment action initiated by Prime and the risk of inconsistent judgments between the two declaratory judgment actions, the New York federal court refused to entertain jurisdiction to hear Wesco’s declaratory judgment action.  The court also referenced the fact that Wesco had not named the motor carrier as a party to its declaratory judgment action, which would be affected by the ruling and its addition would defeat diversity. 

Stillwell v. Topa Ins. Co., 2022 Ga. App. LEXIS 130, C.A. No. A21A1752 (Ga. Ct. App. Mar. 9, 2022).  The Court of Appeals of Georgia reversed the trial court’s dismissal of a direct action against an insurer on lack of subject matter jurisdiction, finding that whether or not the insurer was subject to Georgia’s direct-action statute against motor carrier insurers is not “jurisdictional” for purposes of subject matter jurisdiction.  Accordingly, dismissal under 12(b)(1) was inappropriate. 

Knight Specialty Ins. Co. v. Day Express, LLC, 2022 U.S. Dist. LEXIS 40392, C.A. No. 3:21-cv-00227 (N.D. Tex. Mar. 7, 2022).  A federal court refused to grant default judgment in an insurance coverage declaratory judgment action where certain defendants were minor children not represented by a general guardian, conservator, or other like fiduciary.  As such, default judgment was not permitted under FRCP 55(b)(2).  As to the remaining non-minor defendants, the court explained entering judgment against them but not all defendants could result in inconsistent judgments and therefore it denied the requested relief.

Young v. USAA Gen. Indem. Co., 2022 S.C. App. LEXIS 35, C.A. No. 5899 (S.C. Ct. App. Mar. 9, 2022).  USAA issued two separate insurance policies to a military household family.  The vehicle involved in the accident was taxed and titled in South Carolina and the policy indicated the vehicle was principally garaged in South Carolina.  The accident occurred in South Carolina.  The policy was written on South Carolina forms.  At the time of the accident, the family’s other vehicle was in Guam with the husband who was stationed there with the military.  That other vehicle was insured under a separate USAA policy, which listed the vehicle as principally garaged in California, where the family had lived prior to the husband’s deployment.  The husband and wife were both residents of South Carolina and paid South Carolina taxes.  The wife and their children were living in South Carolina at the time of the Accident.  The California policy did not contain UIM coverage in a form that South Carolina would recognize.  After the accident, USAA paid the Youngs UIM benefits under the South Carolina policy, but declined any benefits under the separate California policy.  The family brought a declaratory judgment action seeking declaration that the California policy insured property, lives, or interests in South Carolina and therefore must be reformed consistent with South Carolina law, including its version of UIM benefits which may have the effect of allowing the family to obtain additional UIM benefits under the California policy.  The court agreed with the family, holding that the California policy insured property, lives, and interests located in South Carolina and therefore was required to comply with South Carolina UIM requirements.

Progressive Mountain Ins. Co. v. Yaobin Chen & Season Seafood Trading, 2022 U.S. Dist. LEXIS 34859 (N.D. Ga. Feb. 28, 2022).  Motor carrier insurer, in response to receiving a pre-suit time-limited policy limits demand, instituted a declaratory judgment action seeking a declaration of non-coverage under the policy and that the MCS 90 endorsement on the policy was not triggered under the facts of the loss.  The personal injury claimant/declaratory judgment defendant challenged the jurisdiction of the federal court to issue a declaratory judgment, contending that such would constitute an impermissible advisory opinion.  The federal court rejected this argument, emphasizing the longstanding rule that “[i]n the insurance context, even if it is unclear whether the injured party will sue or obtain a judgment against the insured, there is held to be sufficient controversy between the insurer and the injured person that a declaratory judgment is permissible.”  It went on to explain that mandating that the insurer wait until suit is filed to seek clarity about its rights and obligations under the insurance policy runs contrary to the purposes of the Declaratory Judgment Act.  Moreover, the court found the policy limits demand created a “substantial likelihood” that the insurer would suffer future injury.  Accordingly, the court held the insurer had standing under the Declaratory Judgment Act to bring the action. 

Progressive Southeastern Ins. Co. v. Brown, 2022 Ind. LEXIS 131, C.A. No. 21S-CT-496 (Ind. Feb. 25, 2022).  The Supreme Court of Indiana reversed the lower appellate court’s ruling regarding the scope of the MCS 90 endorsement pursuant to the Motor Carrier Act of 1980.  The lower appellate court had previously held that the insurer’s obligation under the MCS 90 endorsement applied to solely intrastate transportation by virtue of the state’s incorporation by reference of the FMCSRs.  The Supreme Court of Indiana disagreed, finding the MCS 90 only applies in two situations: (1) when a motor carrier transports property in foreign or interstate commerce; or (2) when a motor carrier transports hazardous materials in foreign, interstate, or intrastate commerce.  Since the at-issue transportation was purely intrastate under either the trip specific or the fixed intent of the shipper approaches and did not involve hazardous materials, the MCS 90 was not triggered.  The state’s incorporation of the FMCSRs likewise incorporated the limitations of Part 387, including that for the MCS 90 endorsement to be triggered on a purely intrastate trip the load must contain hazardous materials.  In so holding, the court also explicitly overruled a prior inconsistent Supreme Court of Indiana opinion. 

Great Am. Assur. Co. v. Acuity, 2022-Ohio-501, C.A. No. CA2021-08-097 (Ohio Ct. App. 2022).  Summary judgment in favor of Non-Trucking Liability insurer upheld on appeal.  The driver signed an independent contractor agreement with the motor carrier to serve as a driver for the motor carrier.  The motor carrier was insured by Acuity via a Commercial Auto and Commercial Excess Liability Policy.  The independent contractor agreement required the driver to obtain a Non-Trucking Liability and Physical Damage Policy while the tractor was not being operated on behalf of the motor carrier.  Great American issued the NTL policy, which contained a trucking or business-use exclusion.  On the day of the accident, a Friday, after a delivery, the driver advised dispatch he still had a chassis belonging to the motor carrier and dispatch instructed him to return it to the motor carrier’s shipping yard.  After returning the chassis to the shipping yard, as was his customary practice, the driver began driving the tractor to his home from where he would be dispatched the following Monday.  Along the way to his house, he performed several personal errands, though he took his normal and customary route home from the shipping yard save for a half-mile detour.  The trial court ruled in favor of the NTL insurer, finding that the NTL insurer’s business or trucking use exclusion applied to remove the accident from coverage.  Relying upon precedent and Ohio law, the court held that the driver remained in the business of the motor carrier until the driver “returns to the point where the haul originated, to the terminal from which the haul was assigned, or to the [driver’s] home terminal from which he customarily obtained his next assignment.” 

Howell v. Peoples Coverage, 2022 Ky. App. Unpub. LEXIS 91, C.A. No. 2020-CA-1344 (Ky. Ct. App. Feb. 18, 2022).  In an unpublished opinion, the Court of Appeals of Kentucky addressed a declaratory judgment action stemming from a motor vehicle accident involving a tow truck.  After the tort plaintiff obtained a $4.5 million consent judgment, he then took by assignment any claims the tort defendant had against its insurance agent and insurer.  The tort plaintiff then filed a lawsuit alleging negligence against the insurer and the agent, including allegations they failed to properly advise their insured, failed to properly insure the vehicle, and failed to comply with Kentucky state law on insurance requirements.  The insurer and the agent filed a separate declaratory judgment action counterclaim in the second action asking the trial court to address the correct amount of coverage under the facts.  The trial court’s ruling on the declaratory judgment counterclaim was the sole issue presented on appeal.  In essence, the tort plaintiff sought to reform the policy to provide $1 million in coverage on the theory the policy was issued to a motor carrier that hauled hazardous materials in intrastate commerce. The appellate court agreed with the lower trial court that hauling cars would not constitute transporting hazardous materials based upon the specific Kentucky state statutes at play, and therefore $1 million in coverage was not required.  The appellate court sidestepped the issue of whether the responsibility upon the motor carrier to comply with the state financial responsibility requirements could be placed upon the insurer or agent, finding that issue was not presently before the court because the trial court determined there were material issues of disputed fact regarding the agent’s duty to advise.      

AmTrust Ins. Co. of Kansas v. Best Global Express, 2022 U.S. Dist. LEXIS 30231, C.A. No. 21-12164 (E.D. Mich. Feb. 18, 2022).  Cargo insurer was granted default judgment in a declaratory judgment action against its insured seeking a declaration it had no duty to defend or indemnify the insured due to the insured’s lack of cooperation in the investigation of the accident.  Despite numerous attempts to contact the insured, before and after the declaratory judgment action was filed, the cargo insurer was unsuccessful in reaching its insured. Applying Illinois law, the court held coverage may validly be denied by an insurer where, after diligent attempts by the insurer to secure cooperation with a claim investigation, the insured has failed or refused to cooperate depriving the insurer of information sufficient to establish coverage and the insurer is substantially prejudiced.  Under the facts, the court found the insurer reasonably tried to contact its insured, was unable to do so, and the insured’s failure to respond deprived the insurer of information pertinent to the loss.  As such, the insurer could deny coverage for the loss and it had no duty to defend or indemnify its insured with respect to the cargo claim.

WORKERS COMPENSATION:

Caijao v. Arga Transp., Inc., 30 Neb. App. 700, C.A. No. A-21-384 (Neb. Ct. App. Mar. 1, 2022).  The Nebraska Court of Appeals affirmed the decision of the Nebraska Workers Compensation Court denying his claim for workers compensation benefits on the basis that he was an independent contractor, not an employee of the trucking company.  In the six months prior to the accident, he only delivered loads for Arga Transportation, using a tractor provided by Arga but that was leased to him by Arga.  He was paid by the mile and could receive a discretionary bonus at the end of the year.  He received no other benefits through Arga.  After noting there were numerous factors bearing on employer versus independent contractor relationship, the court stressed the element of control or the right to control was “the chief factor.”  The claimant argued Arga exerted control over him by requiring him to comply with FMCSRs and that the lease agreement provided, as required under the FMCSRs, that Arga had exclusive possession, control, and use of the equipment.  The court rejected that the FMCSRs determined whether an employee-employer relationship exists.  Under the facts, the appellate court found the workers compensation court properly held Arga exercised control over the result, but not the manner and method, by which the claimant performed the work.  Other factors likewise favored an independent contractor relationship.