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Bits & Pieces

April 2020

The End is in Sight…We Hope…

We hope this finds you and your family safe and healthy. We at CAB, like many of you, are getting a bit stir-crazy. We would like to send our heartfelt sympathy to all of those with family, friends and/or co-workers affected by the COVID-19 pandemic. We send a special cheer to all of our truckers who are helping keep the country operating! You are truly our heroes. In the meantime, CAB is operating on all cylinders. We’re here to support you all in any way we can.

During this time we are excited to continue to innovate for our users! I’m happy to announce we’re in the final stages of development for our NEW COVID-19 Sidelined VIN Auditor, which will be introduced in our Tips & Tricks below.

Live Training Sessions

Our live training continues to have a great response from our users. Last month’s training on CAB List™ and Alerts had almost 600 attendees. This month we will present two new live trainings:

Tuesday, May 12th @ 12p EST: Mike Sevret will present Using CAB: Flow & Navigation. This will be an overview of Carrier Central and the CAB Report®. Perfect for newer users or current users looking for refresher or an update on enhancements.

Tuesday, May 19th @ 12p EST: Chad Krueger and Jay Weinberg (our resident IT Wizard) will provide focused training on our new Sidelined VIN application. This is a brand new tool that will allow users to quickly identify any events that take place for designated parked or laid-up vehicles on the policy. (Additional information can be found in our Tips & Tricks section below.)

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers can register for either session from our Webinars page or by logging in and clicking this link https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest focused training topics that you would like to see. We are looking forward to connecting with you during these sessions. Do not hesitate to ask questions!

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CAB’s Tips & Tricks: NEW Sidelined VIN Auditor

Due to COVID-19 and the resulting situation with the economy and certain aspects of the transportation industry, we have endeavoured to provide a solution to help our insurer partners address the issue of “sidelined vehicles”. Depending on the vernacular at your organization, these vehicles may also be referred to as “laid-up” or “parked” vehicles. A number of years ago our team of programmers developed our VIN Exceptions tool, which was created to audit VIN schedules. CAB’s Sidelined VIN Auditor uses similar programming to identify vehicles that have been inspected during the sidelined periods.

Long & short, insureds and agents are reaching out to insurers to sideline unneeded/unused vehicles in order to obtain some premium relief during COVID-19. Our Sidelined VIN Auditor allows insurers to audit those sidelined vehicles regularly to determine if the vehicles have had events during the sidelined period. By using the Sidelined VIN Auditor, a CAB user can verify the status of the sidelined vehicles and ensure proper premium is being applied.

In order to use the Sidelined VIN Auditor, you will need to download the template, insert the appropriate information (there are required and optional columns) and then upload the file. From there, the Sidelined VIN tool will return a report of any vehicles on the list that has had an event during the sidelined period. From there, users will be able to expand the data to review specifics that can be downloaded so appropriate steps can be taken by the organization.

As with all of our enhancements, we strive to present the data in a manner that will help provide additional clarity. We at CAB are constantly striving to improve our tools and resources to create value for our users. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are customer driven. Our goal is to help you Make Better Decisions!

THIS MONTH WE REPORT:

FMCSA Issues Notice of Proposed Rulemaking Concerning Drug & Alcohol “Push” Notifications: Issued on April 28, FMCSA called for a new “CMV driving ban” meant to increase compliance with current regulations and keep drivers with drug or alcohol offenses off the road until they have complied with return-to-duty requirements. Currently, most states are not aware when a CDL holder licensed in their State is prohibited from driving a CMV due to an alcohol or drug testing violation. Consequently, there is no Federal requirement that SDLAs take any action on the license of drivers subject to that prohibition. As a result, a driver can continue to hold a valid CLP or CDL, even while prohibited from operating a CMV under FMCSA’s drug and alcohol regulations. The proposed downgrade would align a driver’s CLP or CDL status with his or her CMV driving status under § 382.501(a), thus closing the current regulatory loophole that allows these CMV drivers to evade detection. Additionally, state licensing agencies may be required to query FMCSA’s Drug & Alcohol Clearinghouse prior to issuing a CLP or CDL. More information regarding the Notice of Proposed Rulemaking can be found here.

ATRI’s Truck Activity Index Details the Rise and Fall of Operations during COVID-19: From early February into March, the data shows a spike in initial truck activity in the analyzed states of CA, FL, IL, NY, PA & WA – documenting the response to high consumer demand for items such as non-perishable food and paper products, as well as the much-needed emergency medical supplies. The analysis further documents the impacts of the stay-at-home orders that shut down major segments of the economy, with a resulting decline in April trucking operations. Of the six states analyzed, California had the earliest stay-at-home order issued on March 19. California also experienced the earliest upward spike in truck activity, occurring during the week of March 1. However, truck activity in California is now down 8.3 percent from early February. In Florida, Illinois and New York, truck activity spiked the week of March 8 but is now down on average by over 10 percent from February 9. In Pennsylvania and Washington, truck activity spiked during the week of March 15, but is now down by an average of nearly nine percent from February 9. There are initial signs of a return to normal, however. In New York, one of the earliest states to experience high numbers of cases, truck activity started a positive uptick during the week of April 12.

Expanded Emergency Declaration Under 49 CFR § 390.23 No. 2020-002 (Relating to COVID-19): As of April 8th, the FMCSA has extended the emergency declaration through May 15, 2020. This declaration applies to all fifty States and the District of Columbia and was originally issued on March 8th, 2020. The extension continues the exemption granted from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSRs) for drivers and trucks providing direct assistance in support of emergency relief efforts related to COVID-19 outbreaks. The complete declaration can be found here.

FMCSA Issues Waiver of Knowledge Test Training for Certain 3rd Party Test Examiners: The agency has issued a waiver to allow third party CDL skills test examiners, temporarily without the need for additional training, to also administer CDL knowledge tests, to address testing availability concerns caused by licensing agency closures and staff shortages due to the ongoing coronavirus outbreak. This action, in combination with FMCA’s previously published CLP and CDL waivers, are intended to allow for individuals who are seeking to become professional drivers to complete the CDL credentialing process and assist the motor carrier industry during this time of need. Click here for more information.

CAB Calculates Total Crashes and Total Per Million Miles Traveled: This table shows, for each power unit range, the total number of different types of federally reportable crashes, and the associated rate per million miles traveled. Crashes include those that occurred during the 12 month period indicated at the top of the section. Power unit and mileage data come from the most recent data we have for each carrier. Only carriers that were active during the past 12 months are included. Data is as of March 31, 2020.

How is the COVID-19 Economic Shutdown Affecting Inspections?: Our resident statistician has pulled together some very preliminary data that represents a very small period of time in the overall statistical environment…because inquiring minds want to know. As far as inspections are concerned nationwide, we’re seeing a ⅓ reduction from the previous March of 2019. Keep in mind that the Emergency Declaration referred to above, exempts many drivers and trucks from enforcement due to the type of load being transported. Digging a little deeper, if we break it down by inspection level, we see that Level I (full), II (walk-around), and III (driver-only) all had about the same percentage decrease (roughly 33%), while level V (vehicle-only) had only a 15% decrease. It should be noted that vehicle-only inspections makeup only around 3-4% of inspections nationwide, so they have a very small effect on the overall numbers. We will continue to monitor this data and report the results as more substantive data is gathered.

Federal Government to Distribute 800,000 Masks to Truck Drivers at 35 Locations: The Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA) and the Department of Transportation (DOT) are joining forces to distribute 800,000 masks at more than 35 locations throughout the nation. “Right now, professional drivers are busting their butts to care for the nation,” Todd Spencer, OOIDA’s CEO, wrote to Mr. Trump. “Their hard work and personal sacrifice should not include their health – or even their lives – if at all possible or preventable. We need a plan for them. We need help. Do it.” “Truckers are traveling around the country without access to masks, gloves, and hand sanitizer,” the Small Businesses in Trucking Coalition wrote. “With an operational budget of $665 million for fiscal year 2019, surely the FMCSA has funding available in its budget to make this a reality in accordance with the National Transportation Policy to keep the supply chain intact. America can do so much more for truckers than just #ThankATrucker.”

Motor Carrier Report Low Rates and Freight Fallout Worsens: Based on one survey from the middle of April, nearly half of carriers reported that freight levels had “decreased significantly” since the coronavirus-wrought economic shutdown. Another 35% said freight has decreased. Those numbers paint a much different picture than the survey results from the last week of March. These conditions have resulted in major financial strain, parked vehicles and layoffs in the industry. With no immediate end in sight, motor carriers will have to make tough decisions to maintain operations in the near term.

CASES

Auto

A trucking company which plaintiff claimed was involved in a hit and run was successful in having the action dismissed when the plaintiff could not prove that the defendant was operating the tractor at the time of the accident. The Court of Appeals in Tennessee held that when the plaintiff, while being deposed, could only claim that the motor carrier’s name was on the trailer, that was insufficient to support a claim against the motor carrier who routinely interchanged equipment with other carriers. Affainie v. Heartland Express Maintenance Services, 2020 WL 1549600

A win for the insurer in the 7th Circuit when the court held that the insured failed to obtain verification that an ambulance was reinstated on the policy before the accident. The court held that policy required more than notice before change took effect, and therefore it was not modified to include the ambulance subsequently involved in collision by insured’s notice to insurance agent to reinstate that vehicle. The court also held that the insurer could not be estopped from denying coverage for the ambulance on the basis that commercial motor carriers had to have liability coverage for their entire fleet when the vehicle weighed under 10,000 pounds. Markel Insurance Co. v. Rau, 2020 WL 1808872

Plaintiff’s suit arises from an fatal accident in which plaintiff hit an overturned trailer belonging to defendant. Defendant, in turn, brought a third party action against another trucking company which struck plaintiff from the rear. The Southern District in West Virginia dismissed the third party complaint concluding that under West Virginia law there was no basis for either a contribution or indemnity claim when the primary defendant was partially at fault for the accident. French v. XPO Logistics Freight, 2020 WL 1879472

An insurer’s request for summary judgment that its no-trucking use policy provided no coverage for an accident when the vehicle was under lease was granted in the Western District of Oklahoma. The court held that the policy was unambiguous. The court concluded that when the vehicle was leased to a motor carrier and the driver worked for the motor carrier there was no time that it was not being used by the carrier. Great West Casualty v. Fast Haul, Inc., 2020 WL 1814915

When the value of a personal injury action remains an issue the defendant cannot necessarily support removal of the action under the diversity statute, even when the plaintiff fails to take a position on damages. The District Court in South Carolina remanded the case back to state court, noting that the motor carrier could remove down the line if the evidence supported damages in excess of $75,000. Martinez v. Sarratt, 2020 WL 1892357

The same held true in the Southern District of New York where the court remanded the case after removal by the trucking company. The court concluded that the defendant had failed to establish that damages were in excess of the jurisdictional requirement when there was no specific allegation in the complaint. Barrett v. TP Trucking, 2020 U.S. Dist. LEXIS 65197

When the jury went outside the admitted evidence to calculate the damages the Court of Appeals in Iowa granted a new trial on damages. The court held that the viewed documents appeared to have provided a calculation that fell within the range of damages provided by one expert but conflicted with the damages calculated by the other expert. Although the jury could have reached the same verdict without consulting outside evidence, there is a reasonable probability that the documents influenced its verdict so back it went. Randall v. Ary, 2020 WL 1548492

The defendant was able to have the judge disqualified from its case in the Court of Appeals in Florida. The action arose from a fatal truck accident in which the truck driver was operating a hands free cell phone at the time.The trial judge’s multiple comments denigrating the carrier’s position regarding its cell phone policy created a fear in a reasonable person that the defendant would not receive a fair trial. Bias was found to exist. Publix Supermarkets, Inc. v. Monica, 2020 Fla. App. LEXIS 4918

An Interesting defense tactic was successful in the Northern District of Indiana. The defendant moved for a protective order precluding the plaintiff from questioning the truck driver by posing “Reptile Theory”, i.e. questions about the existence and purpose of safety rules during depositions. The court granted the motion, holding that asking those questions of the driver exceeded the permissible scope of discovery. Estate of McNamara v. Navar , 2020 U.S. Dist. LEXIS 70813

A plaintiff was not permitted to simply allege negligent hiring against the trucking company without specifying the factual basis for such a claim. The Eastern District of Texas granted the motion for a more definite statement. Diaz v. Kettley Trucking, Inc. 2020 U.S. Dist. LEXIS 60218

An insurer was not precluded from seeking a declaratory judgment with respect to its duty to defend or indemnify its insured under a non trucking use endorsement on a commercial auto policy and the request for reimbursement of defense costs incurred. The Northern District in California held that the claims were not subject to res judicata or collateral estoppel because they were not litigated in a state court action involving the parties. The issue of coverage and indemnity had not been specifically addressed by the state court. Canal Insurance Co. v. A&R Express Trucking, 2020 WL 1904464

The Southern District in Illinois refused to dismiss a declaratory judgment action filed by an insurer seeking a determination on whether it provided coverage for a truck accident. The court rejected the injured parties request that the court exercise its discretion and dismiss the action, forcing it back to state court where the personal injury action was being litigated. The court concluded that permitting the coverage action to proceed would help the parties determine the availability of insurance in order to resolve the suit. Artisan and Truckers Casualty Co. v. Neron, 2020 WL 1938892

The U.S. Government was unsuccessful in its attempt to get summary judgment in a suit arising from a collision between the plaintiff and a postal truck. The Southern District in Indiana held that there were question of fact as to who moved into whose lane at the time of the accident, precluding an early resolution of the matter. Hogan v. United States of America, 2020 WL 1905553

A motor carrier was granted a writ of mandamus directing the trial court to dismiss a personal injury action on the grounds of forum non conveniens. The Court of Appeals in Texas held that when the factors set forth in the applicable state law., section 71.051(b) favor the conclusion that an action would be more properly held in a forum outside Texas, the statute requires the trial court to grant motions requesting that it decline to exercise its jurisdiction. In re Ceva Ground, 2020 WL 1429929

The 8th Circuit has disagreed with some other courts, concluding the Carmack Amendment does not preclude a claim for personal injuries. Shipper’s employee brought negligence action in state court against carriers, seeking to recover damages for personal injuries he allegedly sustained when improperly loaded stack of cardboard boxes fell out of trailer and struck him, causing him to fall to ground and fracture his shoulder. The court held that the action could proceed. Fergin v. Westrock, 2020 WL 1778817

Over in the Central District of California the court remanded a case back to state court after it was removed by a truck broker. The suit arose out of a serious bus accident in which the bus hit a tractor-trailer hauling a shipment which had been brokered by the removing defendant. The court held that the defense of preemption asserted by the broker did not give rise to a basis for removal as ICCTA did not provide for complete preemption. Campos v. Benny Whitehead Logistics, 2020 WL 1486107

The Eastern District of Pennsylvania dismissed claims for punitive damages against a truck driver and his employee for a rear end hit into another tractor trailer, concluding that there was no factual allegations which would support such a claim. General allegations that a trucking company should have known of driver issues was insufficient to support the claim. The court also granted the defendants’ motion for a more definitive statement when plaintiff made conclusory allegations without factual support on his other causes of action. Carson v. Tucker, 2020 WL 1953655

A driver and his company were unsuccessful in obtaining dismissal of claims for recklessness and punitive damages following an incident where the driver drove over another driver standing in a loading zone. The Middle District in Pennsylvania held that there were sufficient allegations to support both claims, further holding that the motor carrier could be vicariously liable for a punitive damages claim against the driver. Molina v. Timmons, 2020 WL 1637895

When the plaintiff simply alleges general violations of federal safety regulations a claim of negligence per se was dismissed in the Eastern District of Missouri. The court also precluded the plaintiff’s expert from addressing whether the motor carrier has allowed for a sufficient stopping distance when the expert had no facts to support such a conclusion. Collins-Myers v. Triangle Trucking, Inc. 202 WL 1445703

The Second Division Appellate Court in Illinois upheld a grant of summary to an insurer on claims of breach of contract, unfair claims practices and consumer fraud following the defense of the motor carrier in a personal injury accident. . The fact that the insurer had an interest in creating favorable precedent that would be useful in other cases involving its insureds did not negate the fact that it was providing a full and vigorous defense . Good case to read to evaluate the steps taken in assessing defense strategy and keeping an insured advised along the way. Joseph T. Ryerson & Son, Inc. v. Travelers Indemnity Company of America, 2020 Il App (1st) 182491

Back and forth. Trucking company wins a defense verdict but then the court orders a new trial. On appeal the Second District in the Ohio Court of Appeals reversed and reinstated the jury verdict. The court held that the defendant’s use of demonstrative exhibits, including computer-generated images were not sufficiently prejudicial to warrant granting a new trial, because their exclusion would not have changed the result below. Shaneyfelt v. Byram, 2020 WL 1814854

The District Court in Illinois permitted a suit to proceed against a third party driver management company for injuries sustained by the plaintiffs following a truck accident. The company, which had already appeared in the suit to protect its workers compensation lien was, accordingly to the plaintiffs, possibly responsible for the actions of the driver. Despite the late effort to assert the claim, the court held that the defendant would not be prejudiced and discovery on the issue should proceed. Ramos v. Simon’s Trucking, 2020 WL1644026.

The Eastern District in Michigan denied a motor carrier’s request for summary judgment when the plaintiff ran into the back of the truck. The court held that there were arguments to be made on both sides as to who caused the loss and a rear-end hit was only a rebuttable presumption that the plaintiff was negligent. Of note – the court told both parties they could lose and sent the case off to a settlement conference. Fields v. Ashford, 2020 WL 1703876

The Court of Appeals in Texas gave limited relief to a motor carrier following a 2.8 million dollar verdict. The court rejected all of the defendants arguments, other than acknowledging that some of the damages, for a lumbar surgery, were high. Munoz v. Castillo 2020 WL 1856476. Plaintiff subsequently accepted the minimal reduction, keeping a verdict of more than 2 million in place. 2020 WL 1887807

Cargo

Whether claims are timely continues to be litigated. The Northern District in Texas denied summary judgment to a motor carrier who claimed that a proper claim had not been filed. The court held that the list provided by the plaintiff advised the carrier of a specific or determinable claim even though it only listed the original purchase cost of the allegedly damages items. It was enough to meet the claim requirement of a determinable or specific amount. Seinfeld v. Allied Van Lines, Inc. 2020 WL 1493662

An insurer was successful in obtaining a default judgment against a motor carrier in the Southern District of New York. The insurer, who was subrogated to the rights of another trucking company, was also given prejudgment interest. Federal Insurance Co. v. CLE Transportation, 2020 WL 1503455

It is not very often that we see decisions arising from specified peril policies. The Southern District in Mississippi refused judgment to the insurer who contended that the policy did not cover theft as a peril. The court, while dismissing the claim for punitive damages, held there were questions of fact as to whether the policy explicitly limited coverage to the designated perils when there were additional exclusions. Haymore v. Shelter General Ins. Co., 2020 WL 1536615

The Northern District in Ohio rejected a carrier’s request to dismiss an action against it for damage to cargo which it packed and transported to the pier. Upon delivery in Austria the damage was discovered by the plaintiff. The court held that simply because the cause of action was labeled breach of contract did not make it a state law claim, concluding that it was properly alleged as a claim under the Carmack Amendment. The court also held that the bill of lading did not have to be attached to the complaint for it to be a valid breach of contract action.. Emco Corp. v. Miller, 2020 WL 1915254

Removal of a Carmack case is both procedural and substantive. The District Court in South Carolina refused to remand a clear Carmack case back to state court when plaintiff raised questions on timeliness and consent of all parties. The court held that plaintiff’s early attempts at service did not start the clock running and technical failures on the part of the defendant to spell out consent of the co-defendants was not enough to send it back! Smith v. Kelso, 2020 WL 1887723

A truck broker was sued by a wrecker yard for the costs associated with the clean-up and storage of a shipment of paper. The District Court of Massachusetts held that the claims did not concern the transportation of property. The claim sought to recover for storage fees that accrued after the accident, when the shipment was no longer in transit to its final destination. Because these claims involve conduct that occurred “subsequent to ‘transportation,’ and not the transportation of property itself, there was no FAAAA preemption. The suit was allowed to proceed. Ted’s of Fayville v. Amekousse, 2020 WL 1694993

Follow the trail. Plaintiff hires one entity to transport freight. That defendant assigns the obligations to another, who then assigns it to a third company. The driver hit the bridge. Who is responsible? The Northern District of Ohio held that the plaintiff could pursue the middle company, on the theory that it was a third party beneficiary of the contract entered into to transport the freight. The motion to dismiss was denied. Noble Environmental, Inc. v. National Freight Logistics, Inc. 2020 WL 1451965

A claim for equitable indemnity would not stand against a truck broker in the Northern District of California. The claim arose from the failure to insure proper pre-cooling and transport of a shipment of pharma The court held that the broker was not a joint tortfeasor with the shipper and therefore the claim would not stand. Underwriters at Lloyds v. Abaxis, 2020 WL 1677341

Physical Damage

When is a vehicle acquired to start the time running for adding after acquired vehicles to the policy? That was the issue considered by the Court of Appeals in Oregon. The Court reversed the judgment in favor of the insurer, sending the case back for a determination of when the insured was entitled to possession of the vehicle. It was interesting to note that the court rejected the insurer’s claim that there was a relationship between the insured and the prior owner which it argued showed that it was an earlier acquired vehicle. Not so said the court, looking to the policy definition of insured. The close connection between the seller and the insured did not impact the time of acquisition. Ram Express, LLC v. Progressive Commercial Casualty Co., 303 Or. App. 211

Workers Compensation

The Appellate Division in New Jersey upheld a verdict rendered in favor of an insurer seeking additional premium. The audit revealed that a policyholder, a freight forwarder, had withheld material information about its operations and thereby underpaid its workers’ compensation premiums. After a non-jury trial, the Law Division judge ruled that the policyholder had violated the workers’ compensation fraud statute, N.J.S.A. 34:15-57.4. The court held that the freight forwarder was required to report and pay premium for the motor carriers who transported the consolidated freight. Fournier Trucking v. New Jersey Manufacturers Insurance Co., 2020 WL 1802840.

Thanks for joining us,

Jean & Chad

March 2020

CAB Bits & Pieces March 2020

Carrying on during these unprecedented times.

We are all experiencing something unprecedented in most of our lifetimes with the current COVID-19 response. I imagine this is a small sample of what it was like during the early part of the 20th century when the world was grappling with The Great War, the Spanish Flu, The Great Depression and World War II. As I type this, my whole family is home either working, or going to grade school, high school or college online as we shelter in place. We are certainly some of the fortunate ones. During this time we at Central Analysis Bureau want you to know that we are working to ensure our systems are operating at peak performance for you, our valued customers. We continue with our innovation and enhancements to create additional value as well. If you have questions about our tools and resources, please do not hesitate to contact us.

Please do all you can to look out for your family and fellow employees. Additionally, if you see a trucker, thank a trucker. Our industry is certainly intertwined with the trucking companies and drivers that are coming through with flying colors in our national time of need. We pray for a quick end to this epidemic and a return to normalcy for everyone.

Thank you to America’s Truck Drivers!

Live Training Sessions

Our live training sessions continue to have a great response from those that register and attend. This has encouraged us to do all we can to provide a good cross section of topics and tools. On Tuesday, April 14th, Mike Sevret will again be providing our initial training Intro to CAB: Flow & Navigation and on Tuesday, April 21st, Sean Gardner will be providing our CAB Focused Training: CAB List & Alerts. Our focused training will be shorter and last 30 minutes, as we know your time is important. Hopefully the country and industry will be getting back to normal by this time. You can register for either session from our Webinars page or by logging in and clicking this link https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest some focused training that you might want to see. We are looking forward to connecting with you during these sessions. Do not hesitate to ask questions!

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CAB’s Tips & Tricks: BASICs Calculator: Equipment Tab

Our developers have been working on a number of enhancements that will allow you to better understand the equipment being operated and how those types of equipment are affecting the BASICs Scores. A new tab has been added to the BASICs Calculator named Equipment. This tab has numerous headings each of which can be used to sort the data. The headings include GVWR (or Class), Make, Model, Type, Units (#), Inspections (#), Crashes(#), Vehicle Maintenance (Total BASICs Point Weighting) and Points per Inspection (Pt/Insp). The color of the bar graph allows you to understand if the violations occurred in the last 6 months (red, BASICs multiplied by 3), 7-12 months (yellow, BASICs multiplied by 2) or 13-24 months (green, BASICs multiplied by 1).

As noted with the example above, the most BASICs points are assigned to the top line Volvo Truck, Model VNL, which averages 5.4 BASICs points per inspection, however the second line, Freightliner, Model M2 has over twice as many BASICs points assigned at 12.5 per inspection. Information is also available for all non-Pull Units (trailers) associated with the motor carrier, by toggling the Green PU (Pull Unit) switch. This is a great tool to identify if a model or vehicle type might be skewing the BASICs scores. This could identify potential issues related to the pre & post trip inspections, the preventative maintenance program or the specific model in general.

As with all of our enhancements, we strive to present the data in a manner that will help provide additional clarity. We at CAB are constantly striving to improve our tools and resources to create value for our users. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are customer driven. Our goal is to help you Make Better Decisions!

THIS MONTH WE REPORT:

US Department of Transportation Expands National Emergency Declaration for Commercial Vehicles Delivering Relief in Response to the Coronavirus Outbreak: On Wednesday, March 18, 2020 he U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today issued an expanded national emergency declaration to provide hours-of-service regulatory relief to commercial vehicle drivers transporting emergency relief in response to the nationwide coronavirus (COVID-19) outbreak.FMCSA’s expanded declaration provides for regulatory relief for commercial motor vehicle operations providing direct assistance supporting emergency relief efforts intended to meet immediate needs for products, equipment, material and personnel to combat the virus and its spread. To ensure continued safety on the nation’s roadways, the emergency declaration stipulates that once a driver has completed his or her delivery, the driver must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers. FMCSA’s emergency declaration is the first time the Agency has issued nation-wide relief and follows President Trump issuance of a national emergency declaration in response to the virus. For more information and to review the expanded emergency declaration, click here. All current Emergency Declarations, including a map, can be viewed here.

Below are the latest FAQs that relate to the FMCSA’s Emergency Declarations

Frequently Asked Questions Related to the FMCSA Emergency Declaration 3/20/20

Frequently Asked Questions Related to the FMCSA Emergency Declaration Part 2: 3/25/20

The So Called ‘Flexible’ Hours of Service Final Rule submitted to White House: Early in March, Jim Mullen, The FMCSA’s Acting Administrator announced that the agency was submitting the proposed changes and that the Final Rule was filed with the Office of Management and Budget (OMB) on Monday, March 2nd. The OMB now has 90 days to approve or reject the final rule. Once approved, the Final Rule can then be published in the Federal Register but it would likely be months or even years before the changes to HOS would go into effect. August of 2018 is when the FMCSA first started working on the regulation when it published an Advanced Notice of Proposed Rule Making and asked for public comment.

ISS-CAB Values by Total Carriers and Percentage of Carrier: Snapshot date is 3/9/20. Explanation: The first table shows, for each power unit range; the number of carriers with “safety” scores in the green, yellow, and red ranges, and the total number of carriers with a “safety” score or an “insufficient data” score. The second table shows the data as percentages, out of carriers with “safety” scores or out of all carriers as appropriate. ISS scores are as of the snapshot date listed at the top of the section. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included.

DOT Drug & Alcohol Testing Disruptions Addressed During COVID-19: Motor carriers subject to DOT drug and alcohol testing under the Federal Motor Carrier Safety Administration (FMCSA) received guidance from the agency allowing for some flexibility until June 30, 2020, due to the COVID-19 pandemic. The COVID-19 national emergency has created disruptions that are interfering with, and often preventing, compliance with the drug and alcohol testing requirements. The FMCSA has provided the following guidance (in addition to ODAPC’s notice) in respect to testing operators of commercial motor vehicles (CMVs) requiring commercial drivers’ licenses (CDLs). Below are links to the most recent guidance issued by the FMCSA.

Below is additional guidance issued by the FMCSA Related to Drug & Alcohol Testing

DOT Guidance on Compliance with Drug and Alcohol Testing Regulations 3/23/20

DISRUPTIONS TO DRUG AND ALCOHOL TESTING DUE TO THE CORONAVIRUS DISEASE 2019 (COVID-19) PRESIDENTIALLY DECLARED NATIONAL EMERGENCY

Waivers granted for expired CDLs, CLPs, and medical cards: FMCSA grants, until June 30, 2020, a waiver from certain regulations applicable to interstate and intrastate commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders and to other interstate drivers operating commercial motor vehicles (CMVs).Consistent with the requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, limited in scope and circumstances, that is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver until June 30, 2020. For additional information on the waiver, click here.

ATRI & OOIDA Join Forces to Better Understand how COVID-19 is Impacting Trucking: The American Transportation Research Institute (ATRI) and the Owner-Operator Independent Driver Association Foundation (OOIDA Foundation) are conducting a joint research study to understand the numerous impacts that the Coronavirus pandemic is having on trucking operations. The research focuses heavily on a survey that solicits critical input from truck drivers and motor carrier staff who are encountering Covid-19 impacts such as limited shipper access, changing distribution patterns and traffic-related issues. “This survey will help us confirm what we know anecdotally,” said Tom Weakley, Director of the OOIDA Foundation, “that the trucking industry is leading the charge in responding to food and medicine shortages among other critical supplies. We need everyone’s input on this effort.” Anyone involved in trucking operations is urged to respond. “Our goal is to complete the data analysis as quickly as possible, as it can provide important guidance to public and private decision-makers. The Covid-19 pandemic is a moving target, and we can’t afford to design policies and supply chains around guesswork,” said Dan Murray, Senior Vice President at ATRI. For additional information, click here.

Roadside Breakdown Costs Continue to Rise: The TMC/FLeetNet Benchmarking program noted that unplanned roadside maintenance costs have risen 26% in the past year. The main reasons for this are labor rates due to the technician shortage, longer repairs times and more towing events due to the added complexity of newer equipment and increased parts cost partially due to tariffs. These increased costs continue to add pressure to an already exasperated industry.

CASES

AUTO

The first trucking case decision in which Covid-19 is mentioned as having an impact on litigation. The Northern District of Illinois addressed the need for continued discovery of medical professionals concerning the injuries suffered by the plaintiffs in a truck accident. The court held that it would apply a broad construction of concept of “burden” of medical discovery in civil tort cases was warranted during COVID-19 public health emergency, for purposes of weighing burden of proposed discovery from medical professionals and treatment providers in personal injury action arising out of motor vehicle accident. The court said:

In other words, the medical community is very, very busy right now, and likely will be busy for weeks or months to come. And these doctors and nurses are busy preparing to take care of sick people. Soon they may be taking care of more sick people than they can handle. We all hope that conditions will not overwhelm our health care system, but at this writing, we do not know how significant the impact will be. Even if the system is not overwhelmed, it may be strained to at or near its limits. Physicians who do not normally practice emergency care may find themselves deployed to emergency rooms. Physicians who might never practice emergency medicine may find themselves immersed in logistical planning or other essential services. It is reasonable for all of us to expect that at this moment and at least for the next few weeks and possibly longer, the situation at hospitals and medical offices will be all hands on deck.*

*All hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit.

Discovery is going to be curtailed in this time where we need them all to focus on the public health. Devine v. XPO Logistics Freight, 2020 WL 1275087

A plaintiff was successful in getting a new trial after the jury found her 50% at fault for a truck accident. The New Jersey Appellate Division held that introduction of evidence of her medical condition and her alleged medication non-compliance was in error, and capable of producing an unjust result. Back to a new jury to decide who had the green light at the time of the accident. Wegner v. Derrico, 2020 WL 969824

The Northern District of Ohio gave some relief to a motor carrier, concluding that violations of administrative safety rules do not constitute negligence per se. The court also granted summary judgement to the motor carrier on causes of action for strict liability and negligent hiring. The court rejected the request for summary judgment on the sudden medical emergency defense Yoon v. K-Limited Carrier, 2020 WL 1031486

Claims of negligent hiring, retention and supervision were dismissed against a motor carrier in the Eastern District of Texas. The court held that plaintiff failed to allege contentions sufficient to establish a direct claim against the motor carrier. Joseph v Hood, 2020 WL 1076040

Over in the District Court in South Carolina the court held that plaintiff would not be permitted to assert claims of negligent selection of an incompetent or unfit motor carrier against the shipper and consignee or claims that the driver was an agent or statutory employee of the shipper. Ruh. V. Metal Recycling Services, 2020 WL 1303136

Can you remove a case to federal court after you moved to have the case dismissed in another court on the grounds of forum non conveniens? The Eastern District in Kentucky said yes, refusing to remand the transferred case back to state court where there was no explicit waiver of the right to remove. Defendant did lose its attempt to seek dismissal of plaintiff’s claims of negligent hiring, retention, supervision, entrustment, and training. The court held discovery would proceed. Kidwell v. Maybach International Group, 2020 WL 897609

In a similar move, the Eastern District of Texas dismissed a claim of negligent entrustment against a trucking company. The court held that the plaintiff had not produced any evidence that the motor carrier knew the driver was reckless. Anduza v. Baer, 2020 WL 1027678

Last month we reported that the Western District of Arkansas would not stay an action against a truck driver when there were criminal proceedings still in play. This month the court reconsidered its decision and imposed a stay in the civil proceeding. Edwards v. Thomas, 2020 WL 888538

The 9th Circuit refused to allow a plaintiff a new trial following a limited verdict in her favor. The court agreed with the trucking company that it was entitled to submit evidence that plaintiff really suffered no financial loss, beyond unpaid medical, and that her injuries were, in part, preexisting. The defendant was not able to recover fees. Weber v. TMG Logistics, Inc. 2020 WL 9566777

Although we will not find out whether such a claim will be supportable, because the Southern District of West Virginia concluded that there was no personal jurisdiction, it is interesting to note that plaintiffs sought to recover against a company that performed services, including evaluating and screening new hire drivers for the defendant motor carrier, contending that they should not have permitted the driver to be hired. Gilley v. C.H. Robinson, 2020 WL 1272116

Enough is apparently enough. When a pro se plaintiff, after losing at trial, spent the next few years filing suits against everyone involved in the case, including the insurer, defense court, the court and the President, the Middle District of Georgia finally said enough. The court concluded that plaintiff’s claims were barred by res judicata, barred by absolute judicial immunity, or failed to state a claim for which relief can be granted. The court also held that the plaintiff was enjoined from filing any additional suits against the defendant without first receiving court permission. Williams v. Land, 2020 WL 1264177.

The Court of Appeals in Georgia held that OCGA § 40-2-140 (d) (4), permits direct actions against the insurers of interstate trucking companies. The statute provides “Any person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.” Daily Underwriters of America v. Williams, 2020 WL 1239481

Whether a driver assumes the risk that cargo will fall on him when he knows he should not be near the truck during unloading was a question of fact. The District Court in South Dakota denied the defendant’s motion for summary judgment. Gray v. Macarthur Company, 2020 WL 999007

Dash cams to the rescue! The Northern District in Illinois ruled in favor of the United States government in a case involving an impact with a postal truck and a bicycle. The court accepted the truck driver’s version, since the dash camera video footage showed the truck slowing down at a comparable rate to the silver car in front of it, driving straight and not swerving and the inside camera showed that the driver was listening to a simple radio talk show at an appropriate volume at the time of the accident. Lazcano v. U.S. 2020 WL 1157368

When the motor carrier denied that its driver was involved in a truck accident defendant’s motion for summary judgment was largely premature. The Western District of Oklahoma said that with that pivotal question of fact, i.e. was the driver in an accident, still at issue, the questions of claims for negligent hiring, training, supervision, and entrustment claims would remain to be litigated. The court also held that the plaintiff’s claim for punitive damages on the theory of respondeat superior would continue pending resolution of the question of the accident. Kittles v. Harav, LLC 20202 WL 1159396

A motor carrier was unsuccessful in reversing the denial of its request for summary judgment arising from a truck accident. The collision occurred when plaintiff attempted to exit an interstate highway, encountered icy conditions on the exit ramp, and then lost control of her vehicle, which veered back into the lanes of interstate traffic where it was struck by the defendant’s tractor-trail Defendants moved for summary judgment dismissing the complaint against them, contending that Burrell was not negligent and that he acted reasonably in response to an emergency situation. The Appellate Division in New York agreed with the trial court that there were questions of fact as to whether the truck was following too closely in light of the weather conditions. Bass v. Burrell, 2020 WL 1224411

Immediately removing a case to federal court under the diversity rule in order to get it done before the non-diverse defendant is served does not always work. The Western District in Oklahoma remanded the case back to state court when the plaintiff was actively trying to serve the driver at the time of removal. Woods v. Dr. Pepper Snapple Group, Inc., 2020 WL 917284

A motor carrier was denied summary judgment when the plaintiff claimed that she made the lane change while the driver was stopped at a red light, and she remained stopped ahead of the truck for at least ten seconds before the collision. The Eastern District in Louisiana held that there was no need to see or make eye contact with the driver to ascertain his intention, if he was stopped at a red light. A question of fact remained. Arroyo v. Travelers Indemnity Co., 2020 WL 1030831

The Western District in Virginia addressed the obligations of a trucking company and shipper for a fatal truck accident. The court granted the motor carriers motion to dismiss claims against the trucking company for negligence, vicarious liability as a statutory employer, negligent entrustment, and negligence or negligence per se by aiding and abetting violations of the FMCSRs. It did, however, permit a claim for negligence per se. With respect to the shipper the court held that the plaintiff failed to support a claim that the shipper assumed the duty for safe transport or a claim for negligent hiring. It should be noted, however that the court permitted an amendment of the complaint to permit the plaintiff to allege the history of safety violations and the conditional DOT rating to support a claim for negligent hiring. McKeown v. Rahm, 2020 WL 1250499

The 10th Circuit Court of Appeals held that it did not have jurisdiction to hear a claim by an auto insurer challenging the judgment of the district court ruling on timely motion by the CGL insurer to correct or amend an amended judgment, seeking reimbursement for auto insurer’s share of defense costs in underlying action against insured. The accident arose when a worker at site of crude oil was injured in a fire from ignition of gas were. The court further held that the exclusion in commercial automobile insurance policy for accidents arising out of operation of pump applied and the automobile exclusion in CGL insurance policy did not apply; and that the voluntary-payment doctrine under Wyoming law did not apply in context of two insurers jointly settling claims against their joint insured under mutual reservation of rights. Carolina Casualty Ins. Co. v. Burlington Insurance Co., 2020 WL 948338

Who pays the Pip benefits when the truck driver is hurt? The Eastern District in Michigan concluded that personal auto insurer did not have to pay PIP benefits when the driver was in a truck hauling freight at the time of the injury. The court held that he was an employee at the time he was injured, and therefore the “employee exception” of Mich. Comp. Laws § 500.3114(3) applied. The bob-tail policy did not apply either, leaving the trucker’s auto policy as primary. Horace Mann Ins. Co. v. Acuity, 2020 WL 1323234

A truck broker’s argument that negligent hiring claims against it are preempted, and therefore allowing the plaintiff to allege such a claim would be futile, was unavailing in the Southern District of West Virginia. The court held that there were various jurisdictions that did not agree and plaintiff should be afforded an opportunity to assert the claim. Taylor v. Sethmar Transportation, Inc., 2020 WL 1181531

A motor carrier was unsuccessful in having a punitive damages claim dismissed in the Middle District of Pennsylvania. A piece of cargo had come off the truck, striking and killing the decedent. The court held that what may constitute a known risk regarding the cargo securing devices at issue was a matter for discovery. The complaint contains allegations which, if proven, plausibly show reckless indifference to the safety of others in that the importance of properly securing a load of angle iron and steel joists cannot be disputed and the requisite degree of culpability for any deficiency related to securing the cargo could potentially support punitive damages if proven. Houck v. WLX, LLC 2020WL 1289810

Employee or independent contractor? Not a question to be resolved on the pleadings apparently. The Northern District of Illinois concluded that there were too many questions on whether the plaintiff was a co-employee when injured in a truck accident. The applicability of the employee exclusion would take longer to resolve. American Inter-Fidelity Corp. v. Hodge, 2020WL 1433783

Independent claims for negligence were not permitted against a motor carrier when it admitted vicariously liability for the actions of the driver. The Eastern District of Louisiana, applying state law, concluded that no such claim existed. Jones v. National Liability & Fire Ins. Co, 2020 WL 1332944

CARGO
Making sure that pleadings are sound when dealing with household goods loss and damage claims is often difficult. The Middle District in Alabama provided a road map for the plaintiff’s claims against a motor carrier and a broker, once again allowing plaintiff the opportunity to amend. The court also ordered the plaintiff to show why he believed it could assert a claim against a broker. Peters v. Liberty Bell Moving Group, 2020 WL 1069731

We do not see many claim filing cases these days. The Western District in Kentucky upheld the tariff requirement that a claim be filed in writing within nine months. A general email within the nine months did not substantially comply with the claim filing requirements. Secura Insurance v. Old Dominion Freight Lines, 2020 WL 1430608

A default judgment was entered against a motor carrier in the Southern District of Alabama for damage to household goods. The court held that plaintiffs had established their right to $70,000.00 in damages for repair and replacement cost for the damage to the goods. Rollason v. All State Van Lines Relocation, 2020 WL 1171947.

A pro se plaintiff sought to recover an alleged loss of $153 million when a shipment was late in delivery, resulting in the loss of a government contract. The Southern District of Ohio dismissed the pro se complaint because there was no privity of contract between plaintiff, as the owner of a company, and TQL. While the court indicated that the company might have standing to bring such an action the plaintiff had no standing to bring such a claim on behalf of the company. Brown v. Total Quality Logistics, 2020 WL 1289761

As a carrier learned in the Eastern District in California It is important to make sure that everyone understands what contract applies to a particular shipment. The motor carrier was unable to enforce its forum selection clause as it was determined by the court that it had failed to show that an earlier contract applied to the shipment at issue. Access Biologicals, LLC v. XPO Logistics, 2020 WL 1139560

WORKER’S COMPENSATION

Summary judgment was granted to a motor carrier who was sued for injuries suffered by the truck driver operating its vehicle. The Court of Appeals held that there was no question as to employment status and that the plaintiff’s exclusive remedy was worker’s compensation. The fact that the co-drivers were paid on 1099’s and not on a W-2 did not create a jury issue of the employment status. Estes v. G&W Carriers, 2020 WL 1074056

In a dual truck accident lawsuit the defendant was permitted an opportunity to amend its complaint to seek recovery of worker’s compensation payments made on behalf of its driver employee. The District Court in Rhode Island held that the defendant should be permitted the amendment, even if the statute had run as the new cause of action related back to the allegations already in suit. Buerman v. Witkowski, 2020 WL 1083681

A motor carrier was unsuccessful in seeking dismissal of a suit by a co-driver for injuries suffered in a truck accident. The Eastern District in Texas held that the issue of employment was outside the scope of the pleadings and could not be resolved on a motion to dismiss. Summary judgment was the appropriate remedy. Milburn v. Colonia Freight Systems, 2020 WL 1289436

The Supreme Court in Nebraska considered the obligations of an insurance broker to advise about worker’s compensation obligations. The plaintiff employee alleged that the broker was negligent in failing to advise employer of obligations under Workers’ Compensation Act and that the auto insurer acted in bad faith in denying a defense in underlying suit. The court held that the broker did not have a duty to advise employer of its workers’ compensation obligations, and the employer’s liability exclusion in commercial automobile and (CGL) provisions applied. Merrick v. Fischer Rounds & Associates, 305 Neb. 230

A class action filed by various truck drivers was decertified by the Supreme Court in Iowa. The drivers sought to assert that an agreement which required them to undertake short term light duty and treatment in Des Moines was not enforceable. The court held that the district court abused its discretion by certifying this case as a class action. The commonality requirement is lacking, individual issues predominate over common ones, and workers’ compensation claims must be resolved by the workers’ compensation commission before judicial review. Roland v. Annett Holdings, Inc., 2020 WL 131378

Thanks for joining us,

Jean & Chad

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