The chill is setting in and thoughts are shifting towards the holidays!

Big news!  We are adjusting our format for our November 16th live training session.  It will be a town hall format and you will have the opportunity to submit questions for our experts to answer.  As noted, this is a bit outside our comfort level, so your assistance will be greatly appreciated.  Below you will find a link to submit questions that we will pose to the experts for answering.  As with other web training sessions, there will also be an opportunity to ask questions during the event.   We are very excited and we hope you will help make it a success!  

Please click here to submit questions for the CAB Town Hall.

More big news, Jean and Shuie will be speaking at the CCJ Solutions Summit: The title of the summit is: Shifting the driver paradigm: Winning with equipment, technology, and culture.  Join them in person at the 2021 CCJ Solutions Summit, Nov. 30 – Dec. 2, in Chandler, Arizona. CCJ Summit assembles fleet executives, thought leaders, industry analysts, and leading suppliers to explore ways equipment, technology, and corporate culture can shift the driver paradigm and overcome your No. 1 challenge: Cultivating a qualified workforce.  For more information on the CCJ Solutions Summit, click here.

Enjoy November and we hope everyone has a great Thanksgiving!

CAB Live Training Sessions

Tuesday, November 9 @ 12p EST: Mike Sevret will present VITAL+, Going Deeper with VINs. Go beyond the CAB Report and know the full history with our Vehicle Inspection Tracker & Locator (VITAL) search engine. See historical data on VINs, license plates, or a specific DOT#. Every inspection, violation, & accident is at your fingertips!  Click here to register.

Tuesday, November 16th @ 12p EST: The CAB Team will present Central Analysis Bureau Town Hall 2021, Q&A with the CAB Experts.  Do you have a burning question you’ve been wanting to ask one of our CAB experts?  Now is your chance!  Click the link below to submit your question and our team of experts will answer the question live during this session.   Click here to register.

Bam!  Click it HERE to submit a question for the CAB Town Hall.

CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

Additionally, you can explore all of our previously recorded live webinar sessions including the following topics of interest.  Below are our most recent available webinars.  Share with your colleagues or review them yourself!

Follow us at CAB Linkedin Page  CAB Facebook Page

CAB’s Tips & Tricks: Dig into the BASICs data!

When reviewing the CSA/BASICs tab in the CAB Report® do you know how to determine if the violation listed was determined to be Out of Service, or not?  An Out-of-Service violation requires the vehicle to be off the road until the violation or violations have been resolved.  Additionally, Out-of-Service violations result in an additional violation weight of 2. As an example, the last violation at the bottom of the list below for 8/11/21, the Stop Lamp Violation has a BASIC weighting of 6, however, due to the vehicle also being placed Out-of-Service due to the violation, the weighting is raised by 2, for a total of 8.  Also note, there is a time weighting factor assessed.  The same violation is multiplied by 3, due to occurring in the last 6 months (7-12 months x 2 & 13-24 months x1).  More recent violations are weighted more heavily than older ones.  So the true weighing being applied to the Vehicle Maintenance BASIC is 24.  As you can see, it does not take much for Out-of-Service violations to add up.  *Out-of-Service violations are also denoted in CAB via a red font.

THIS MONTH WE REPORT:

From Overdrive: FMCSA tells states to ban drivers with drug, alcohol strikes:  Truck drivers who have a positive drug or alcohol test and find themselves in the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse will begin having their licenses downgraded after a final rule from the agency takes effect. Under the new rule, which will be effective as of Nov. 8, 2021 – with a state compliance date of Nov. 18, 2024 – states will be barred from issuing, renewing, upgrading, or transferring a CDL or commercial learner’s permit for any driver prohibited from driving a commercial vehicle due to one or more drug or alcohol violations. Additionally, states will be required to remove the CLP or CDL privilege from the license of drivers subject to the CMV driving prohibition, resulting in a downgrade of the license until the driver completes return-to-duty (RTD) requirements. FMCSA said the rule will ensure that drivers with drug and alcohol violations don’t operate commercial vehicles until they complete their return-to-duty process.  To review the complete article, click here.

More Than 13,000 Vehicles Transporting Hazardous Materials/Dangerous Goods Were Inspected During CVSA’s Unannounced Five-Day Inspection Initiative: Commercial motor vehicle inspectors in Canada, Mexico, and the U.S. inspected 13,471 vehicles transporting hazardous materials/dangerous goods (HM/DG) as part of a focused HM/DG inspection and enforcement initiative by the Commercial Vehicle Safety Alliance (CVSA). During the 2021 HM/DG Road Blitz, June 21-25, inspectors compiled and submitted valuable HM/DG compliance data to the Alliance. In the U.S. and Canada, 10,905 commercial motor vehicles and 8,363 HM/DG packages were inspected over that five-day period. Inspectors identified 2,714 violations.  For more information, click here.

Driver shortage trucking’s top concern for fifth straight year: For the fifth year in a row, the driver shortage has topped the American Transportation Research Institute’s (ATRI) annual Top Industry Issues report, a survey of more than 2,500 carriers, commercial drivers, and other industry stakeholders. Unlike 2019 and 2020, where margins between the driver shortage and the No. 2 industry issues were much closer and the driver shortage earned just 28.6% and 26.4% of the total share of votes, respectively, the driver shortage totaled 47.4% of the total share of votes in the 2021 survey. “The contributors to this [driver] shortage are endless,” said Rebecca Brewster, ATRI president and COO during an educational session Sunday at the American Trucking Associations’ annual Management Conference and Exhibition in Nashville. “Growing freight demand, the shift to e-commerce that leads to more local jobs that is hurting the over-the-road driver recruiting, an aging workforce and we are not backfilling with younger individuals that we need to account for those driver retirements.” Brewster added the pandemic also has created a backlog in driver supply from training schools and state licensing agencies that were temporarily shut down.  For the complete article from CCJ, click here.

CVSA Releases 2021 Brake Safety Week Results: North American Commercial motor vehicle inspectors inspected 35,764 commercial motor vehicles during this year’s Brake Safety Week, a seven-day inspection and enforcement initiative aimed at inspecting commercial motor vehicles roadside and identifying and removing any commercial motor vehicles with dangerous brake-related issues from our roadways. Twelve percent of the vehicles inspected were placed out of service due to critical brake-related inspection item conditions.  Combined, for a North American total, 35,764 commercial motor vehicles were inspected, Aug. 22-28, for Brake Safety Week. Twelve percent of those vehicles were restricted from travel because inspectors found brake-related critical vehicle inspection item conditions and placed those vehicles out of service, using CVSA’s North American Standard Out-of-Service Criteria.  For more information on this topic, click here.

Administration’s vaccine mandate (OSHA’s Emergency Temporary Standard) up against ‘extremely difficult’ challenge, attorneys say: COVID-19 contact tracing could prove to be the downfall of President Joe Biden’s hotly contested vaccine mandate. Employers with 100 employees or more may soon be required to have their employees vaccinated against the highly contagious coronavirus or face costly fines. A provision for weekly testing in lieu of vaccination is expected to be added to the Occupational Safety and Health Act (OSHA) Emergency Temporary Standard (ETS), which awaits OSHA approval. The American Trucking Associations, one of several industry groups meeting with White House officials to caution against implementing the vaccine mandate for fear of further straining an already anemic labor supply, reported that the mandate will likely push out 37% of drivers at a time when they say 80,000 more are needed to help alleviate unprecedented kinks in America’s supply chain. Legal challenges are mounting against the president’s tough stance on COVID, including in Florida where Governor Rick DeSantis said recently that the state will challenge Biden’s mandate in court.  For more information from CCJ on this topic, click here.

Strong freight, rates environment expected to last through 2022: The current trucking environment is one of the best in history from a demand perspective, and that strong environment for rates is expected to continue.  ATBS President Todd Amen, in an Overdrive’s Partners in Business webinar Thursday (see link below), said all signs are pointing to the current cycle lasting through the end of 2022. “We’re already 18 months into this cycle, and by all accounts … a traditional trucking cycle will be somewhere between 12 to 24 months of good for the truckers and then it’ll be three to four years of bad,” he said. “So it’s like quick up, and a slow, gradual decrease when you think about rate and freight cycles. By all accounts, we’re already most of the way into a really good freight cycle, and it should turn.” However, “Most people are saying this could last all the way through 2022,” he added, “which would be amazing. It would be a 30 month-plus. almost-going-on-three-years positive freight cycle for truckers, which is incredible.”  To read the complete article from Overdrive, click here.

FMCSA Deputy Administrator Meera Joshi Convenes Meetings in Midwest To Discuss Truck Driving and Supply Chain: Continuing the Biden Administration’s whole-of-government approach to addressing supply chain disruptions, Federal Motor Carrier Safety Administration (FMCSA) Deputy Administrator Meera Joshi met with multiple transportation organizations in the Midwest this week.  The meetings focused on strengthening commercial vehicle safety, bolstering truck driver availability, and improving rail-to-truck supply chain efficiencies. Truck driver retention and recruitment has been a focus of the White House Task Force on Supply Chain Disruptions.  The core reason for America’s truck driver capacity issue is the startlingly low retention of current drivers.  Among large truck companies, driver turnover rates between companies and out of the industry for long haul drivers are over 90% annually.  For the complete press release, click here.

CAB Calculates Total Carriers and Percentage of Carriers in Inspection Selection System (ISS) range:  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 most recent data. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or an unknown number of power units are not included.

GPS leads driver to high-grade rail crossing, into path of train:  No matter what GPS says, tractor-trailer drivers should not risk trying to drive over a high-pitched railroad crossing and they should pay attention to any signs advising against same. That advice came from law enforcement and a veteran truck driver following a recent collision between a train and car hauler in Oklahoma which was captured on video (see link below) that has since gone viral. Two other trucks that became grounded on that same crossing about 80 miles north of Dallas the week of Oct. 11 were freed before a train approached. All three truck drivers apparently followed a GPS-initiated detour to avoid road construction in the area.  To review the complete article and watch the video, click here.

Auto

So who owes for the towing charges? The District Court in New Jersey held that the motor carrier, the shipper and the truck broker could owe the tow company for all of the charges, allowing claims for quantum meruit to proceed against them. The insurer for the trucker was also kept in the suit under the MCS-90 as its policy did not cover the vehicle. Superior Towing & Transport, LLC v. JB Hunt Transport, 2021 WL 4482824

Plaintiff’s efforts to defeat diversity in a truck accident by filing a claim against a non-diverse party for an accident which occurred years later failed in the Middle District of Florida. The court agreed that there was no reason for that second claim to proceed in the truck accident. Kuhn v. Apgar, 2021 WL 4772844

While Louisiana law would not allow a co-employee/passenger to sue an employee/truck driver because of worker’s compensation limitations, when the non diverse driver was a named party to the suit because the employment status was at issue, diversity jurisdiction over the case did not exist. The Eastern District of Louisiana sent the case back to state court to be litigated. Wilford v. Nationwide Mutual Insurance Co., 2021 WL 4810914

A motor carrier was successful in obtaining summary judgment in a suit seeking damages for a truck collision, The motor carrier showed that he suddenly encountered an unlit and practically immobile vehicle in the lane he was traveling on the interstate during dark conditions with heavy rain. Plaintiff could not show that there was any negligence on the part of the motor carrier. Cigainero v. Moore, 2021 WL 4955450

While the insurer clearly had a claim ripe for declaratory relief when it sought to determine if there was coverage for a motor carrier and its driver the Eastern District of Missouri declined to exercise its jurisdiction over the questions raised. The court determined that the parallel state court action should be resolved first as that would lay to rest many of the questions which would need resolution prior to determining whether the auto policy covered the defendant’s liability, if any, for the loss. Greenwich Insurance Co. v. Matt Murray Trucking, 2021 WL 4902326

When the plaintiff failed to allege any facts to support a claim of negligent entrustment against a trailer leasing company the complaint was subject to dismissal. The Southern District of Texas agreed with the leasing company and granted the unopposed motion to dismiss. Davenport v. Hensley, 2021 WL 4925383

Broker liability for a truck accident was again an issue, this time in the Southern District of West Virginia. After concluding that plaintiff had met the burden of showing personal jurisdiction over the broker, the court went on to deny the broker’s request to dismiss the claims for vicarious liability, and negligent selection of a carrier. The court concluded that the claims against the broker were not preempted by FAAA. Taylor v. Sethmar Transportation, 2021 WL 4751419

A truck driver parked his vehicle on the road in an unacceptable location in order to insure that he was first in line for unloading, and was struck by a plaintiff who did not see the vehicle in the sunlight. The truck driver was potentially liable for punitive damages. The Middle District in Georgia concluded that claims for punitive damages and bad faith would be presented to the jury to decide. It did dismiss plaintiff’s claims for lost profits because he was unable to operate a restaurant which had been unprofitable for a few years. Castleberry v. Thomas, 2021 WL 4765499

Where the plaintiff has not established a prima facie case for punitive damages the District Court in South Carolina held that the plaintiff was not entitled to get early discovery on the finances of the trucking company. The court also rejected the plaintiff’s request that defense counsel articulate the due diligence steps taken to determine whether there was any additional insurance coverage. Akehurst v. Buckwalter Trucking, LLC., 2021 WL 4891749

It is interesting that there are so many cases where truckers are sued for events in which they are claimed to have caused accidents that they were unaware of. The Northern District of Mississippi held that there were questions of fact as to whether the defendant forced the plaintiff to run off the road and have an accident and therefore summary judgement was inappropriate. Garth v. RAC Acceptance East, LLC., 2021 WL 4529690

The Eastern District in North Carolina agreed that a claim for punitive damages against a motor carrier should be dismissed. Under North Carolina law a demand for punitive damages must be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages must be alleged with particularity. Plaintiff failed to allege facts to support such a claim, which would have required allegations that the driver was intoxicated, or driving at excessive speeds; or engaged in a racing competition. MCNeil v. Glasco, 2021 WL 4944342

Claims for negligent hiring, training and leasing are permitted under Iowa law, even when vicarious liability is admitted. However, there must still be facts to prove the claims. The Northern District in Iowa rejected those claims against the trucking company and its affiliated leasing company, granting summary judgment to those defendants. There was no material fact which would lead to the conclusion that liability would exist. DeBower v. Spencer, 2021 WL 4887976

The Southern District in Florida agreed with the defendant that an insurer was not entitled to judgment on the question of its duty to defend under the policy or the MCS-90 Endorsement while the underlying action for damages for the truck accident was still being litigated. The case was stayed pending resolution of the suit. Trisura Specialty Insurance Co. v. Blue Horse Trucking Corporation, 2021 WL 4334764

The Eastern District in Kentucky was not inclined to grant summary judgment to a motor carrier on the theory that the accident was not foreseeable. The court held that the trucking company could have reasonably foreseen that the driver would lose consciousness due to his acute illness at the time of the accident and chronic fatigue, noting that the driver admitted he fell asleep in the moments following the accident. The court did agree, however, that the claim of negligence per se could not be established as the state’s statute did not extend to claims that federal safety regulations were violated. The plaintiff was also not permitted to proceed on claims of negligent hiring, retention, supervision or training when there was not enough evidence to support the claims. Short v. Marvin Keller Trucking, Inc., 2021 WL 4524170

Because the motor carrier may be liable for punitive damages, the carrier’s admission of vicarious liability did not necessarily require dismissal of direct negligence claims against the motor carrier. The Eastern District of Missouri allowed claims for negligent hiring/retention, negligent training and negligent supervision/retention to remain in the case. Sanford v. K&B Transportation, Inc. 2021 WL 4552206

The Northern District in Alabama agreed that a claim of wantonness was subject to dismissal. Even construing the facts in favor of the plaintiff, the court held that consciously deciding to switch from the right lane to the left lane to bypass slower traffic in the right lane was not enough to show that the driver did so “with a reckless or conscious disregard of the rights or safety of others.” He made an error in judgment; it was not enough to support additional damages. Coram v. Southwind Transportation. 2021 WL 4660455

Somewhat strange set of facts. The defendant admitted that the driver was negligent for not securing the cowling, i.e., the removable covering of the vehicle’s engine, which struck the plaintiff’s vehicle causing the accident, yet still sought to be dismissed on the theory that there was no collision with the vehicles, as alleged by plaintiff. The Southern District in Mississippi rejected that argument. Because plaintiff admitted that it was negligent for not securing the cowling the court granted partial summary judgment to plaintiff on liability. Taylor v. Wal-Mart Transportation, 2021 WL 4569344. In a related decision the defendant’s effort to defeat a plaintiff’s claim for money damages stemming from medical treatment on the basis that it was untimely failed. 2021 WL 4504691

The Court of Appeals in Texas reversed a bench trial ruling that the motor carrier and its driver was completely at fault for a multi-vehicle accident started with a collision by the truck. The Court of Appeals determined that the trial court improperly denied an earlier motion to change venue. Because the venue was not proper in the county of suit and would have been proper in Harris County, the county to which the defendants sought transfer, the case was reversed and remanded to be transferred to Harris County to be tried. UPS v. Norris, 2021 WL 4465998

The motor carrier and driver were successful in defeating plaintiff’s claims for personal injury damages as untimely in the Northern District of New York. While the accident was in New Jersey, the court held that the plaintiff was time barred under both states as she could not establish that she was a New York resident at the time of the loss. It is an interesting read as it further addressed whether there was a right to assert personal jurisdiction over the driver in New York based upon his business relationship with the motor carrier. Questions to be considered when there is a leasing relationship between the parties. Afanassieva v. Page, 2021 WL 4458686

Directed verdict in favor of the motor carrier upheld by the Court of Appeals in South Carolina! The court agreed that the plaintiff did not meet the burden of proof that the motor carrier was at fault or caused injury to the plaintiff. Bundy v. Jett, 2021 WL 4593413

An NTL policy exclusion was applicable when a covered auto was used to further the commercial interest of a lessee. The District Court in New Mexico granted the insurer’s request for summary judgment. The court determined that reading together the business auto policy and the business use exclusion contained within the endorsement, the only reasonable interpretation was that the endorsement excluded coverage from the insured business auto policy when a covered auto was being operated on behalf of a commercial lessee. Lopez v. Western Surplus Lines Agency, 2021 WL 4478023

Two insurers, both potentially provide coverage. When one insurer pays the claim can it seek monies back from the other? The Central District in California considered the motion to dismiss filed by the defendant insurer. The court agreed that the presence of an MCS-90 on the defendant’s policy could not give rise to an equitable subrogation claim by another insurer. Equitable subrogation remained a viable option however, as the plaintiff sufficiently showed that the defendant was aware of the claim and therefore could have participated in its resolution. Williamsburg National Insurance Co. v. New York Marine and General Insurance Co., 2021 WL 4458952

Cargo
While a truck broker was able to get all state law claims dismissed against it in a suit seeking recovery for a cargo loss, it was not successful in obtaining dismissal of the claim under the Carmack Amendment. There was still a reasonable basis to argue that the broker held itself out as a carrier. Federal Ins. Co. v. SF Express Corp., 2021 WL 4555040
A default judgment was entered against a logistics company in the Western District of Texas. The court held that the plaintiff was entitled to actual damages, costs, prejudgment and post judgment damages. Federated Mutual Ins. Co. v. XPO Logistics Freight, Inc. 2021 WL 4621965

An interstate shipment which is part of a continuous movement by air is not subject to the Carmack Amendment. The Southern District of New York dismissed the subrogation suit seeking cargo damages. The Court also held that inland transport, from New York to New Jersey was also within the commercial zone, further supporting a rejection of jurisdiction under the exemption for commercial zone transportation. Great American Insurance Co. v. Fastway Delivery Service, Inc., 2021 WL 4555181

Worker’s Compensation
The Court of Appeals in Georgia agreed that a worker’s compensation insurer was not obligated to protect the truck driver’s rights when it filed its subrogation claim against the insurer for the second truck involved in the accident. The statute governing rights of employees to proceed against persons other than employer who are liable for employee’s injury or death does not impose a fiduciary duty on an insurer to protect the employee’s legal interests in its subrogation action brought under that statute. Bush v. Liberty Mutual Insurance Co. 2021 WL 4810176

Time flies when you’re having…fun? 

I know the last 18 months have been weird for all of us, but I continue to be shocked at how quickly the time has passed.  October starts my favorite time of year.  I love the cooling weather and the fall colors.  I just had the pleasure of completing a motorcycle trip through the Northeast US and Canada (13 states & 2 Provinces) and fall is shaping up to be beautiful.  We live in a beautiful part of the world and we are truly blessed.  Everyone we met along the way was wonderfully friendly and helpful.

So, whether you’re a pumpkin-spiced everything or a bring-back summer type of person, here’s to October! Lastly, I look forward to seeing many of you at the Motor Carrier Insurance Education Foundation conference on October 7th & 8th.

CAB Live Training Sessions

Tuesday, October 12th @ 12p EST: Mike Sevre will present Intro to CAB: Flow & Navigation. This is a popular session that we get a good number of requests for.  The session will focus on the layout of the site, how to find specific resources, and a general overview of CAB.  Please use the link below to register.

Tuesday, October 19th @ 12p EST: Chad Krueger will present on CAB’s Shipper Central Resource.  This is an enhancement available with our VITAL+™ resource.  The enhancement was released to the site a few months ago and affords a deep dive into a motor carrier’s shippers.    Additionally, it provides a way to search for specific shippers and associate inspections.   You can also review motor carriers transporting for the specific shipper.  If you’re not familiar with this resource, this is a great session for you!  Please use the link below to register.

CAB subscribers can register for either or both sessions from our Webinars page or by clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

Additionally, you can explore all of our previously recorded live webinar sessions including the following topics of interest:

Follow us at CAB Linkedin Page  CAB Facebook Page

CAB’s Tips & Tricks: Reminder: Closed Enforcement Case Information Available

This is an enhancement that we put in place early in 2020, but we have had a few folks recently ask if we have the information, so here is a quick refresher.  Closed Enforcement Case information (if any) is located in the History Tab in the CAB Report®.  You will also find information from the last 6 years noted in the CAB Alerts section of the General Tab (first page) of the CAB Report. Detailed information, like the screengrab below, can be found in the History Tab.

As a quick background, FMCSA enforcement cases are initiated following compliance reviews, complaint investigations, terminal audits, roadside inspections, or other investigations. We will be providing the full history of closed enforcement cases. Why is this information important? CAB users can use this information to better understand if a motor carrier has a closed enforcement case and engage with the motor carrier to understand what caused the enforcement action and how it was resolved.

An enforcement case is deemed “closed” once FMCSA issues a carrier a “Notice of Claim” (NOC) and the carrier has (1) paid the penalty in full, (2) signed a settlement agreement, or (3) defaulted on the NOC, upon which a “Final Agency Order” was issued.

As with all of our tools & 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:

NHTSA data suggests highway deaths climbing: Data shows traffic fatalities rise despite drop in miles traveled. The new year got off to a hot start with regard to traffic fatalities, logging a 10.5% increase in deadly accidents in the first quarter this year compared to last, according to U.S. Department of Transportation’s National Highway Traffic Safety Administration’s Early Estimate of Motor Vehicle Traffic Fatalities for the First Quarter of 2021. NHTSA estimates that 8,730 people died in motor vehicle traffic crashes in the first three months of 2021, and the increase comes even as driving declined. Preliminary data reported by the Federal Highway Administration show that vehicle miles traveled (VMT) in the first three months of 2021 decreased by 2.1%, or about 14.9 billion miles. The fatality rates per 100 million VMT for the first quarter of 2021 increased to 1.26 fatalities per 100 million VMT, up from the projected rate of 1.12 fatalities in the same time last year. 

CVSA Releases Bulletin on which Documents can be Accepted Electronically:  The purpose of this bulletin is to ensure that all enforcement personnel and industry stakeholders are aware of the acceptability of certain electronic documents, provide a central source for all the regulatory guidance, and provide examples of documents requested at the roadside or in a compliance review that can be surrendered in electronic format.  These are examples of documents that may be presented during a roadside inspection in electronic format: Driver medical cards and certificates; Skills Performance Evaluation certificate (if applicable); Delivery receipts, shipping papers or bills of lading (non-hazardous materials/non dangerous goods only) see link for note; Record of duty status; Supporting documents to verify record of duty status; Daily Vehicle Inspection Report (if applicable, Canada only); Periodic inspection certificates or reports; Lease agreement.  To review the full CVSA Bulletin, click here.

Spot load volume returns to pre-holiday levels: The number of loads posted to the DAT load board network rose 17% from Sept. 13-19 compared to the holiday-shortened Labor Day week, in line with expectations. The number of equipment posts increased 15% over the same timeframe. Spot line-haul van and refrigerated rates remained elevated as shippers work to move freight through congested supply chains, especially in port markets. The national 7-day average van rate topped $2.50 per mile last week and the reefer rate was $2.86 a mile — all-time highs for both equipment types. The overall number of loads moved on DAT’s top 100 lanes by volume rose 23.3% and the number of loads out of Los Angeles alone surged by 41% week-over-week. Rates from Los Angeles to Stockton jumped 41-cents to an average of $4.32 a mile (excluding fuel), $1.18 a mile higher than this time last year.  For more on this topic, click here.

Administration orders OSHA to Issue a COVID Emergency Temporary Standard (ETS): The ETS will require all Employers with 100+ employees to ensure their workers are vaccinated or tested weekly.  The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.  The rule is expected to be issued 30-60 days after the announcement on September 9th.  From there, the ETA can remain in place for six months.  After that, it must be replaced by a permanent OSHA standard, which must go through a formal rule-making process involving a standard notice-and-comment period.  Please click here for additional OSHA guidance on mitigating and preventing the spread of COVID-19 in the workplace.

Louisiana staged-accident fraud scheme up to 40 indictments, 27 guilty pleas:  Two more guilty pleas, seven indictments in Louisiana staged-accident fraud scheme.  United States Attorney Duane A. Evans has recently announced two more guilty pleas and seven new indictments in the widespread staged-accident fraud scheme in New Orleans, bringing the total to 40 indictments and 27 guilty pleas.  On Aug. 2, Genetta Israel, 53, of Houston, Texas, pleaded guilty to conspiracy to commit wire fraud. She and three others were charged with staging an accident on June 12, 2017, in New Orleans. Israel was allegedly recruited to participate in the scheme to obtain money through fraud.  Israel was treated by doctors and healthcare providers at the direction of an attorney also involved in the scheme and received a nearly $60,000 settlement from the staged crash.  For more information on this topic, click here.

CAB Calculates the Percentage of Unsafe Driving Violations that Receive Citations:  As most of us know, the CAB Report® (amongst many other things) provides individual inspection detail for motor carriers.  These could be clean inspections or inspections that result in violations.  An interesting thing to note in regard to Unsafe Driving Violations is that a driver can receive a violation, but not necessarily get a ticket or citation.  Thus the violation would not appear on the driver’s Motor Vehicle Record (MVR) review.  Basically, the violation is applied to the motor carrier’s CSA history and the driver’s Pre-Employment Screening (PSP) history, but the driver does not get a ticket, monetary fine, and/or citation.  Over the prior 12 months, about 33% of Unsafe Driving Violations have received a citation.  The highest Citation Rate is for Texting at 52%.  The lowest is Other Driver Violations at 17%.  Speed 4 (15 MPH+/Construction Zone) is 44%.  Draw your own risk management conclusions, but it is interesting to note the relatively low percentage of Unsafe Driving Violations that will actually appear on a driver’s MVR.  Below is an example of an inspection that resulted in a Speed 4 Violation, but not a Citation.     

Is the owner-operator model a legal minefield? Attorney weighs in: Being an owner-operator is an appealing career option for many drivers, but motor carriers that create opportunities through lease-purchase agreements face mounting legal challenges. Motor carriers were hoping for the Trump administration to change the Federal Labor Standards Act to strengthen their defense. Changes were scheduled to take effect on March 8, 2021, but were quickly nullified when the Biden administration took over control of the Department of Labor. The Democrat-controlled House of Representatives also passed a PRO Act earlier this year to amend the federal National Labor Relations Act with the same Assembly Bill 5 (AB-5) test used in California to determine contractor status. The AB-5 test has been the law in California since January 1. The PRO Act passed in the House but has not gone anywhere in the Senate yet.  To continue this article, click here.

Joshi has confirmation hearing, set to lead FMCSA:  Joshi, nominated by President Joe Biden in April to serve as the agency’s full-time administrator, previously served on the New York City Taxi and Limousine Commission. ATA President and CEO Chris Spear recently sent a letter to leaders of the Committee on Commerce, Science and Transportation expressing his group’s support for Joshi’s candidacy.  “In her eight months serving as Deputy Administrator, Ms. Joshi has become a vital partner to the trucking industry in addressing issues of safety, infrastructure, workforce development, and more,” said Spear wrote. “The COVID-19 pandemic and its disruptive impact on the U.S. supply chain did not pause for the transition to a new Administration, and her response to those challenges has been swift, sure, and effective.“  Spear said ATA has been particularly impressed with Joshi’s reliance on data to address real-world needs, throughout her tenure as Deputy Administrator.  For more information, click here.

Steering issue prompts recall of over 100,000 Freightliner Cascadias (from CCJ News Brief): More than 105,000 Freightliner trucks recalled for steering issue. Daimler Trucks North America is recalling approximately 105,183 model year 2019-2021 Freightliner Cascadia tractors due to a potential issue in the steering system, according to National Highway Traffic Safety Administration documents. According to the recall, the drag link taper joint in the affected trucks may not have been tightened sufficiently and could come loose, resulting in a complete separation of the drag link from the steering arm. Separation of the drag link can cause a complete loss of steering control. DTNA dealers will inspect the drag link taper joint and repair it as necessary. Click here for NHTSA’s Safety Recall Report.

CASES

AUTO

The Court of Appeals in Michigan agreed that when the motor carrier carried the insurance on a tractor leased from an owner operator, that insurer was responsible for PIP benefits when the owner-operator was injured. The court determined that the owner operator was essentially self-employed by his corporation and could be seen as being an employee of both the motor carrier and himself. The Court concluded that under MIchigan law, MCL 500.3114(3) an injured person who owned the vehicle involved and who worked as a self-employed independent contractor was subject to the employer-employee exclusion leaving the defendant, who insured other vehicles for the plaintiff, as highest in priority for payment. Toduti v. Progressive Michigan Ins. Co., 2021 WL 4001802

The plaintiff passenger could not be liable for the accident with a tractor-trailer so the Western District of Texas agreed that any affirmative defense of contributory negligence should be dismissed. The same was not true for the plaintiff vehicle operator, who the motor carrier claimed was driving too fast and contributed to the cause of the accident. That claim remained. Conejo v. EMJB, Inc., 2021 WL 4254899

Everyone wants to get away from litigating in Pennsylvania. The Eastern District of Pennsylvania agreed that the motor carrier defendant could move the personal injury action to the state where the accident occurred. The court disagreed that plaintiff’s medical treatment, post accident, in Pennsylvania could support venue in its jurisdiction. Miller v. SAWA Transportation, 2021 WL 4399665

When the motor carrier had no clear policies on when and where a driver could stop to urinate the Eastern District in Arkansas concluded that the plaintiff could allege independent claims of negligence against a motor carrier who conceded vicarious liability for a fatal accident. The accident occurred after the driver attempted to pull back into moving traffic after stopping on the side of the road to relieve himself. The court also held that a child born after the death of the plaintiff was not entitled to recovery under the wrongful death statute. Crouch v. Master Woodcraft Cabinetry, 2021 WL 4155583. In a related decision the court permitted the plaintiff’s expert to testify concerning the impact of failure to comply with certain federal safety regulations safety regulations. 2021 WL 4150206

A motor carrier asserted a counter-claim against a plaintiff for towing costs, impound fees, insurance surcharges and the driver’s claims for lost wages, lost earnings and emotional trauma when the defendant struck and killed the plaintiff. The plaintiff was intoxicated and sitting in an unlit vehicle on the road when struck by the defendant. While the carrier failed to file the counterclaim within 6 months of the death of the plaintiff, which would make it time barred, the Northern District of Ohio concluded that the counterclaim could still be asserted as an offset against the plaintiff’s claim. Krendl v. Intermark Transport, 2021 WL 3887765. In a related decision the court denied summary judgment to the motor carrier, who contended that the plaintiff decedent was solely at fault for the accident. As there was a reasonable question of fact on whether the defendant should have seen the vehicle and stayed back further the motion was denied. 2021 WL 4125401

Plaintiff’s personal auto policy provided no UM/UIM coverage when the tractor plaintiff owned was insured under a different policy. After exhausting his commercial auto UM policy, the plaintiff sought additional protection under his personal policy. The Eastern District of Pennsylvania agreed that the “regular use” exclusion under the policy was applicable as the vehicle was furnished and available for his regular use. Campbell v. The Travelers Home and Marine Insurance Co., 2021 WL 4137507

Direct claims asserted against officers of a trucking company could not withstand a motion to dismiss in the Eastern Division of Michigan. The court held that the plaintiffs could not support breach of any individual duty owed by the officers of the trucking company. The claim against the company and the truck driver for negligent, but not intentional, infliction of emotional distress arising out of the fatal accident was permitted to proceed. Solek v. K&B Transportation, Inc., 2021 WL 4290181

The battle of the experts is often a focal point in the war of litigation. The Southern District in West Virginia, following up on last month’s decision, evaluated expert issues on the standard of care of truck brokers, among other issues. The court concluded that the plaintiff’s expert could testify on the standard of care required for truck brokers when selecting motor carriers. Gilley v. C.H. Robinson Worldwide, Inc. 2021 WL 4316811

When the plaintiff failed to allege any facts to support independent negligence claims against a motor carrier for an accident involving one of its drivers, the Middle District of Georgia concluded the claims must be dismissed. The dismissal was without prejudice, giving the plaintiff an opportunity to repled the claims with factual support. Bryan v. Swisher, 2021 WL 434271

Moving assets from one company to another company does not always accomplish the intended effect. The Northern District in Ohio concluded that the plaintiff would have to bring a separate action, after the initial defendant was found liable, if he wanted to seek to attach the assets of the new company. The case was too far down the line to allow for amendment in this suit, but plaintiff had a right to bring a separate action for the alleged fraudulent transfer of assets. Sutphen v. Midwest Construction Services, Inc., 2021 WL 4340065

A motor carrier was not successful in defeating a temporary restraining order imposed by the Court of Appeals in Texas. The court held that there was ample evidence that the plaintiff would be irreparably
harmed if the motor carrier was not enjoined from disposing of the vehicle, the cargo and the data involved in the truck accident which injured the plaintiff. GL Logistics Co. v. Flores, 2021 WL 3862232

While a bus company was entitled to summary judgment on direct negligence claims when it conceded vicarious liability for the actions of an intoxicated and speeding bus driver, the same result was not accorded for the claims for gross negligence and punitive damages. There was evidence to support the claim and the Southern District in Mississippi agreed that state law would allow those claims to survive. The decision also addresses the admissibility of various experts proffered by the plaintiff. Deliefde v. Nixon, 2021 WL 4164680

A truck broker was required to produce a copy of its contract with its customer in the Eastern District of Missouri. The court rejected the argument that the contract was a trade secret and concluded that it was relevant to determine whether the defendant was a carrier or a broker for the purposes of its liability for the accident. Carter v. Khayrullaey, 2021 WL 4033009

When the accident occurred in Nebraska, the fact that the motor carrier was a California corporation would not allow the plaintiff to assert a claim for punitive damages under California law. The District Court in Nebraska acknowledged that Nebraska law prohibits punitive damages. Vanicek v. Lyman-Richey, 2021 WL 4196969

The fact that a plaintiff made a settlement demand for more than $75,000 before serving suit papers did not trigger a duty to remove a case which was subject to federal court jurisdiction. The Central District of California concluded that the motor carrier had timely removed the case when it did so within 30 days of receiving the complaint and further concluded that plaintiff’s complaint could not withstand a motion to dismiss for failure to state a claim. The plaintiff was granted leave to amend. Plotkin v Swift Transportation Company, 2021 WL 4197337

Claims against the U.S. Government arising from a truck accident when the truck was hauling U.S. Mail was dismissed by the Northern District of Mississippi. While the plaintiff was permitted to continue the suit against the motor carrier it failed to exhaust all required administrative remedies against the U.S government. The court also held that the government had not waived its sovereign immunity by directing and controlling the transport. James v. Ailes, 2021 WL 3877681

In the battle of the experts, the Court told them both to go home. The Southern District in Ohio concluded that the opposing experts could not testify as to whether the driver did or did not violate FMCSRs by operating in an out-of-service condition. The breach, even if it occurred, did not cause or contribute to the accident. Evans v Aloiso, 2021 WL 4189692

The District Court in North Carolina determined that it has no need to adjudicate a declaratory judgment action on the applicability of coverage for a truck accident when its only connection to the matter was the situs of the accident. The facts of the accident were not relevant, necessarily, to the evaluation of coverage under the policy and therefore the court transferred the case to the home state of the motor carrier. Progressive Casualty Insurance Co. v. Future Van Lines, 2021 WL 4413319

The District Court in Minnesota was not happy with the parties in a dispute over premium returns and security for filing claims when there was a large self-insured retention under the policy. After the parties resolved all of those issues they continued to litigate the issue of fees and potential damages that might have occurred. The court rejected these claims and sent them on their way. RLI Insurance Co. v. Stan Koch & Sons Trucking, Inc. 2021 WL 4199370

When the plaintiffs, a truck driver and his employer, sued both the insurance carrier and the broker for uninsured motor coverage, the Southern District of Georgia agreed that it had no jurisdiction over the removed action when the broker was not diverse to the plaintiff. Plaintiffs’ argument that the broker bore liability if the insurer was successful in denying the coverage was not without some merit and therefore the broker was not a sham defendant. The Onionman Company v. Nationwide Agribusiness Insurance Co., 2021 WL 4282582

When the plaintiff failed to properly serve a Canadian truck driver the Court of Appeals in Washington agreed that the complaint against the driver should be dismissed. The court also held that the plaintiff could not amend the complaint to add in the truck company who employed the driver when it failed to seek the amendment prior to the expiration of the statutory limitation of time. The identity of the company was easily ascertainable during the limitation period. Guenther v. Galaxy Pacific Services, LLC. 2021 WL 4436211

Plaintiff’s claim for willful and wanton negligence against a motor carrier were permitted to stand in the Southern District of Illinois. The motion to dismiss was denied as the court agreed that the plaintiff’s allegations that the carrier engaged in willful and wanton conduct by flouting and encouraging its employee to ignore safety standards and regulations, by failing to adequately train its employee, and by recklessly employing someone with a history of motor vehicle crashes and citations was enough to defeat a motion to dismiss. Montgomery v. Caribe Transport II, LLC., 2021 WL 4132221. In a related decision the court denied the motion to dismiss filed by the truck broker, concluding that FAAA does not preempt a claim of negligence against a broker. 2021 WL 4129327

In another case the Southern District of Illinois also concluded that FAAA did not preempt negligence claims against brokers. However, in this case there was no evidence to support a claim against the broker for vicarious liability, negligent hiring or voluntary undertaking and the broker was granted summary judgement on all counts. Crouch v. Taylor Logistics Company, LLC., 2021 WL 4355403

The Graves Amendment remains applicable to claims against lessors of vehicles which meet the requirements of the amendment. The Western District of Arkansas dismissed the claim against the lessor, and also dismissed direct negligence claims against the motor carrier as it had conceded liability for the driver’s action which may have led to the crash. Hamilton v. Brewster, 2021 WL 4236607

The District Court in Massachusetts also applied the Graves Amendment to negligence claims asserted against a lessor of the tractor, concluding that summary judgment was warranted in favor of the lessor. The court also held that the plaintiff, who was a passenger in the defendant’s tractor, was not entitled to pursue the defendant because there was a direct employment relationship between them and the defendant was liable for the payment of workers’ compensation through the company that hired both of them The exclusive remedy of worker’s compensation was applicable to the plaintiff’s claims. Moura v. Cannon, 2021 WL 4422964

CARGO
The Northern District in Texas dismissed a claim for intentional infliction of emotional distress against a motor carrier arising from a shipment of household goods. The court also dismissed the claim for attorney’s fees, but does not seem to have considered the applicability of the regulation which allows for attorney’s fees in certain circumstances. Plaintiff did not oppose the motion so that falls on the plaintiff. Maniaci v. Plycon Transportation Group, 2021 WL 4190643

Interesting turn of events on a household goods claim in the Eastern District of New York. The court denied the plaintiff’s motion for a default judgment against the defendants who are alleged to have wrongfully withheld delivery of plaintiff’s goods for more than a year, The court concluded that the plaintiff had not properly alleged whether he claimed that the defendants were motor carrier subject to Carmack or brokers, potentially subject to state law claims. Plaintiff is going to have to make up his mind and replead the complaint. The court did agree that individual defendants were alter egos of the motor carrier. Hammock v. Moving State to State, LLC., 2021 WL 4398086

PHYSICAL DAMAGE
The plaintiff was unable to sustain claims against its physical damage insurer for a number of reasons, including delay. Plaintiff claimed that he never got the checks for the equipment (which are alleged to have been stolen by his ex wife). Waiting more than 3 years to bring the action against the insurer was not an option and the suit was time barred. The court also held that the insurer was not responsible for toll charges incurred after the loss because the plaintiff retained the title to the vehicle and the insurer had no legal obligation to take title. Weddington v. Progressive Casualty Insurance., 2021 WL 4423067

WORKER’S COMPENSATION
Take a look at Moura v. Cannon, 2021 WL 4422964 for a decision on the applicability of the worker’s compensation rule when the defendant paid for the worker’s compensation benefits afforded by an employing party.

The Western District of Louisiana concluded that the United States could not assert tort immunity for injuries to a truck driver delivering mail for the government. Even if the government was correct that the work furthered by the driver was within the trade, business, or occupation of the USPS, the contract between the USPS and the motor carrier did not recognize USPS as a statutory employer, and therefore there was no immunity. Frantom v. USA, 2021 WL 4343949

When a trucking company failed to maintain worker’s compensation insurance for its drivers, the Court of Appeals in Utah agreed that the plaintiff driver was entitled to assert all direct negligence claims against the motor carrier. Because these claims were permitted under the Worker’s Compensation Act, the plaintiff was also able to assert a claim for attorney’s fees under the Act. Farman-Rava v. Blu-Auto Transport, LLC., 2021 WL 4025718.