2020 has certainly been an unprecedented year…
At this point in 2020, I can’t help but hope for a boring safe summer. We hope you and your family are able to take some time to enjoy the weather and relax. As we look forward to our Independence Day Holiday, I hope we can all reflect on our blessings and what brings all our people together. Please have a Happy Fourth of July and stay safe!
Live Training Sessions
We would like to thank all the attendees for making our live training such a success. Your interest has driven us to continue to innovate and provide topical training. Last month our training addressed FMCSA’s New Crash Preventability Determination Program: Providing Clarity Using CAB’s BASICs Calculator™ and SALEs™: Targeted Leads Generator. If you missed the webinar, it is available in the Tools menu under Webinars or by clicking here. This month we will present two new live trainings:
Tuesday, July 14th @ 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, July 21st @ 12p EST: Sean Gardner will provide requested training CAB Focused Training: VITAL+™. As a number of our users noted, this feature is due for an updated webinar and we’re happy to provide that. Through this webinar, Sean will discuss in detail the advanced features of VITAL+™ giving you the ability to see DOT related events for a VIN, license plate number or DOT number going back to 1999.
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 so don’t hesitate to ask questions!
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CAB’s Tips & Tricks: Crash Preventability Determination Program (CPDP) Resources
As a follow up to last month’s SALEs™: Targeted Leads Generator webinar, I wanted to make sure all our users are aware of its updated look and feel. The new layout will simplify the navigation throughout the tool. Additionally, we’ve enhanced the search functionality and added numerous search features that will help you quickly identify the motor carriers you want to work with.
Once your search criteria has been identified, easily convert, email, download, export, save or edit your list. Don’t forget, we also offer data services (additional fees may apply) if your organization is looking for integration with a CRM or other software.
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:
U. S. House of Representatives Vote to Raise Mandatory Insurance Limits: The amendment, introduced the week of June 15th, 2020 by U.S. Rep. Chuy Garcia, D-Illinois, passed the House Transportation & Infrastructure Committee late Wednesday, June 17th by a vote of 37-27. The amendment (see here) raised the required amount of insurance coverage for trucking companies from $750,000 to $2,000,000. This is a part of the House of Representatives version of the transportation reauthorization bill that will take the place of the FAST Act of 2015. The dramatic increase has raised concern that it could put small trucking companies out of business. The House version of the reauthorization of the FAST Act, called the Investing in a New Vision for the Environment and Surface Transportation in America (INVEST in America) Act, a five-year, $494 billion surface transportation bill can be reviewed here.
FMCSA’s Emergency Declaration still in Place, but Fewer Freight Categories Included: On June 8th, the FMCSA extended the Emergency Declaration to July 14th. The order had been set to expire on June 14th. Previous declarations exempted Food, Fuel, Paper Products, Raw Materials, Liquified Gases and others. The current declaration is only for +Livestock and livestock feed +Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19 and +Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants. For more information on the Emergency Declaration click here.
Early Estimates of Motor Vehicle Fatalities Shows Year-Over-Year Reduction: A statistical projection of traffic fatalities for the first quarter of 2020 shows an estimated reduction of 70 fatalities. That is a reduction of 1%. Vehicle miles traveled during that same time were reduced by 5.4%. The fatality rate for the first quarter of 2020 increased to 1.10 fatalities per 100 million VMT, up from the projected rate of 1.05 fatalities per 100 million VMT in the first quarter of 2019. The actual counts for 2019 and 2020 will be available later this year, as well as when the final file for 2019 and the annual reporting file for 2020 are available next year. For additional information on this report, click here.
American Transportation Research Institute (ATRI) Releases Nuclear Verdicts Study: Earlier this month ATRI released its Understanding the Impact of Nuclear Verdicts on the Trucking Industry study. The study notes that the term Nuclear Verdicts has existed in the trucking industry since 2006. The cases can often result in verdicts over $10,000,000. Atri’s qualitative analysis includes over 600 cases. One of the interesting graphs note the dramatic jump in Verdict Size Increase compared to Inflation Increase and Healthcare Cost Increase. To obtain and review ATRI’s study, click here.
FedMed Card and License Waivers Extended Through September 30, 2020: The Federal Motor Carrier Safety Administration (FMCSA) extended two Covid-19 enforcement notices relating to medical certifications and driver’s licenses. A driver may continue to operate a CMV with an expired driver’s license provided it was valid on February 29, 2020, and it expired or was downgraded due a lapse in medical certification since March 1, 2020. However, the driver must otherwise be qualified to operate a CMV in accordance with §391.11. For more information on the notice, click here.
Operation Safe Driver Week is July 12-18 With a Focus on Speeding: According to the Governors Highway Safety Association, less traffic may be encouraging some drivers to ignore traffic safety laws, including speed limits. Despite there being far fewer vehicles on the road due to COVID-19 stay-at-home orders, many jurisdictions are seeing a severe spike in speeding. As the number of vehicles on roadways decreased in March and April, average speeds measured during the first week of April increased significantly in the five largest U.S. metropolitan areas. According to recent data, the average speed on interstate highways, state highways and expressways in those areas increased by as much as 75% compared to January and February. For more information on Operation Safe Driver Week and previous results, click here.
Roadside Inspections Rebound After Low of 70,000 in April. As the data set below details, due to COVID-19 exemptions, the total number of inspections recorded in April of 2020 was just under 70,000. Prior to that, and since 2009, the previous monthly low was just under 235,000 inspections. The reason for this is that inspections for most exempted loads were not being conducted, additionally, contacts with drivers were likely limited due to COVID concerns. That being said, May 2020 inspections have rebounded to 124,350 and we expect that increase to continue. It should be noted, we’re continuing to see big differences between states. Some states (e.g. New York, Mississippi, California) have rebounded significantly, while others (e.g. New Jersey, Indiana, Wisconsin) remain far below normal. The violation rate for May (1.22 violations per inspection) remains similar to last month, still slightly down from the same month last year. The good news is that the data validity remains strong as the algorithms are designed to adjust to fluctuations in the data sets. As always, we encourage you to look below the surface to get a better understanding of the motor carriers you’re looking to do business with. You are welcome to reach out to your CAB Representative if you have any questions.
CASES
Auto
Plaintiff’s attempt to use a shotgun approach to allege every possible claim against a trailer owner failed in the Middle District in Florida. The court dismissed the entirety of the complaint against the trailer owner, concluding that the plaintiff failed to properly allege the trailer owner’s part in the transportation, preventing the court from determining if the causes of action were valid. The court also confirmed that under Florida law, a claim of liability based on the dangerous instrumentality doctrine cannot be premised solely on a principal’s ownership of the trailer portion of a tractor-trailer. Bailey v. Bell-Rich Transportation, 2020 WL 3440585
Summary judgment was granted to an insurer in the Western District of Louisiana when the court concluded that the motor carrier liability policy did exclude claims for punitive damages. Moreaux v. Clear Blue Insurance Co., 2020 WL 3477110
Plaintiff’s claims against a motor carrier for negligent maintenance and inspection, negligent hiring, and gross negligence were dismissed with prejudice by the Western District in Texas. The court did note that the negligent hiring claim could have been alleged, if the plaintiff had supported a claim for gross negligence. Perez v. Boecken, 2020 WL 3452990
Summary judgment was afforded to a motor carrier when the Western District in Louisiana held that there was no question of fact on whether the plaintiff was actually in the parked vehicle when it was struck. Video evidence at the truck stop showed the plaintiff walking outside the vehicle shortly before the alleged incident and the evidence supported a conclusion that the driver could not have gotten back to the vehicle before impact. Dugas v. Ace American Insurance Co., 2020 WL 3442288
When an insurer failed to timely accept coverage under a worker’s compensation policy, the consequences were tough. The District Court in New Mexico concluded that the insurer breached its contractual duty and failed to defend the motor carrier in the suit arising from the drivers’ fatal accident. The motor carrier was entitled to defense costs and penalties for failure to comply with the Prompt Payment of Claims Act. MVT Services, LLC v. Great West Casualty Co. 2020 WL 2402272
The Western District of Louisiana concluded that Louisina law will permit direct negligence claims against a trucking company even when the employer admits to vicarious liability for the employee’s negligence. Gordon v. Great West Casualty Co., 2020 WL 3472634
An insurer was not required to pay a $2,6 million default judgment entered against a truck driver when the driver fled the country. The 6th Circuit concluded that the driver failed to cooperate in his defense, letting the insurer off the hook. National Continental Insurance Co. v. Aiazbekov, 2020 WL 343238
After losing the appeal of the lower court decision that an insurer had no duty to defend or indemnify a truck driver under the policy or under the MCS-90 endorsement, plaintiff lost all avenues for recovery. The District Court in South Carolina went one step further and dismissed the complaint after the Court of Appeals held that the declaratory judgment had a serious potential to interfere with the state court proceedings. Trustgard Insurance Co. v. Brown, 2020 WL 2839173
Battles over what can and cannot be addressed at depositions are apparently being fought more often as plaintiffs look to expand the scope of questioning. The District Court in New Mexico granted a protective order on many overly broad issues, including corporate conduct policies and practices, net worth, similar incidents and vehicle equipment requirements, among others. Expanding beyond the facts of the loss is a way to seek facts to support claims which result in excessive verdicts. Heuskin v. D&E Transport, LLC. 2020 WL 3051578
Can the truck driver sue the shipper in the accident state for injuries caused by the alleged negligent loading of the truck in another state? The Eastern District in Missouri held that the plaintiff was entitled to discovery about the defendant’s use of Missouri roads to carry its product and about its intention that Missouri roads be used for shipment of its goods to determine whether long arm jurisdiction was present. Slaton v. Climan Molybdenum Co., 2020 WL 2768788
A truck broker’s efforts to remove a case to federal court failed in the District Court in Texas. The court held that the truck broker was aware of the federal question (preemption) in earlier pleadings and where the removal was not done until after an amended complaint was filed, it was untimely. Lopez v. Truckers Transportation Alliance, Inc., 2020 WL 2894792
A case proceeded to default against a trucking company when defense counsel withdrew due to the fact that the insurer of the trucking company went into receivership. The trucking company failed to defend, resulting in a judgment for damages. Not clear who will pay now. Boshers v. Transco Logistics, Inc. 2020 WL 2806455
Even though the motor carrier’s vehicle struck the plaintiff because of the negligence of a third party, the Eastern District of Michigan denied a motion for judgment on the pleadings. As the plaintiff alleged that the truck driver was speeding, driving carelessly, and failed to keep a lookout judgment was not warranted at this early stage of the case. The court concluded that the motor carrier could not invoke the sudden emergency doctrine if, through his own negligence, he contributed to bringing about the emergency Kingsbury v. Progressive Michigan Insurance Co., 2020 WL 2781825
A trucking company was unsuccessful in its appeal of a verdict rendered against it following a truck and ambulance accident. The Court of Appeals in Texas affirmed all damages including punitive. The court held that prior violations and lack of training on certain weight issues were permissible to support claims for negligence and gross negligence in training, equipping and supervising employees. The verdict was held reasonable. Martinez v. Kwas, 2020 WL 2988452
The Court of Appeals in Massachusetts held that the trial court properly granted summary judgment for the international moving company and its agent on the negligent hiring claim because the driver’s criminal acts, committed while he was off duty and not engaged in the work for which the agent employed him, against a person with whom the agent held no commercial or other relationship, was not a sufficiently foreseeable result of the agent hiring of the employee, or its decision to allow him to drive a truck incident to the move to which he was assigned. The victim was not among those with whom the employment brought the employee into contact, his employment did not furnish the means by which he executed his criminal act, and the truck was not an instrumentality of the criminal assault because he parked the truck, approached the victim from behind on foot, and then dragged her into the woods where he assaulted her. Ledet v. Mills Van Lines, Inc., 97 Mass. App Ct. 667
You cannot avoid the requirement of complete diversity by removing a case before the non-diverse defendant is served. The Southern District in Texas concluded that the trucker’s argument for an extension of the doctrine of “snap removal” even when there was never jurisdiction in the first place was unavailing. Cox v. J.B. Hunt Transp, 2020 U.S.Dist LEXIS 106927
For purposes of jurisdiction the Eastern District of Michigan held that a plaintiff was required to plead the citizenship of each member of the LLC which formed the trucking company. Failure to do so was fatal to the complaint, which the court dismissed. Brown v. Vedos Express, LLC, 2020 WL 3036393
A claim for negligent hiring would be permitted to continue even though vicarious liability was admitted. The Northern District in Indiana concluded that when the plaintiff alleged a claim for punitive damages, the special circumstances needed to support a negligent hiring claim was present. Finn v. Vince Nelson & Southwind Farms, 2020 U.S. Dist. LEXIS 107354
A plaintiff was permitted to amend her complaint to allege a claim of gross negligence against the truck driver and his employer when discovery revealed that the driver was on a 28 minute call at the time of the accident. The Western District of Texas held that as there were few cases on whether cell phone use at the time of an accident was grossly negligent, the amendment would be permitted. Cantu v. Wayne Wilkens Trucking, LLC, 2020 U.S. Dist LEXIS 103104
Statutory penalties and fees were granted on one of two claims for physical damage presented by a trucker against his insurer. The Western District of Louisiana held that once an insurer resolved a discrepancy on the vin, and accepted that the vehicle was covered by the policy, the failure to resolve the claim within the statutory time frames would result in fees and penalties. The insurer was not, however, responsible for those damages on a second claim when the delay was caused by the independent adjuster who did not get the report to the insurer. Jaackson v. Berkshire Hathaway Global Insurance Services, 2020 WL 2803014
Trucking or non-trucking, that is the question. The Middle District of Georgia considered the arguments raised by both of those insurers. The court denied the request for summary judgment, concluding that a jury could reasonably determine either that the driver was on his way to work or on a personal errand at the time of the crash. Great West Casualty Ins. Co. v Burns, 2020 WL 2776495
Defense verdict for the trucker! The Court of Appeals in California affirmed the jury verdict in favor of the trucker. The court agreed that the evidence supported the conclusion that the plaintiff hit the trucker who was operating safely at the time of the accident. Owens v. Burton, 2020 WL 3120354
The Third Circuit Court of Appeals in Louisiana reversed summary judgment granted to a motor carrier who claimed that there was no evidence that cargo fell off the truck and struck the plaintiff. The court held that there was a possible argument that the driver failed to keep a lookout on the roadway and may have negligently struck an item in the road which flew up and hit the plaintiff. Woods v. Weinstein, 2020 WL 2897236
The District Court in South Carolina also refused summary judgment to a motor carrier on a claim of punitive damages. The court held that there was enough evidence to support a claim of negligence per se, which could lead to a claim of punitive damages when the truck driver hit the plaintiff’s vehicle from the rear. Furr v West Coast Distributing, Inc., 2020 WL 2833688
Worker’s Compensation
Who is the employer is often a question in worker’s compensation cases. Despite a contractual agreement that a driver solution company was the employer responsible for benefits, the Commonwealth of Pennsylvania held that the motor carrier was the employer responsible for paying Claimant’s WC benefits. Control over the operations of the driver was the critical factor. R&L Carriers v. Worker’s Compensation Board, 2020 WL 3125307
What is the meaning of “under dispatch” under an occupational accident policy? The issue was addressed by the Northern District of Indiana this month. The court concluded that while the driver was in his personal vehicle driving to get paperwork left at home he was still under dispatch and coverage was afforded under the policy. Priddy v. Atlantic Speciality Insurance Co., 202 WL 3451663
The Supreme Court of Idaho concluded that the the Department of Insurance had the statutory authority to review an insurance carrier’s application of a rule promulgated by a rating organization for the calculation of premium rates, such as NCCI’s Basic Manual Rule 2.H.2 The court held that the DOI could determine whether the independent contractors could be included under the trucker’s compensation policy for premium purposes. In Re Idaho Workers Comp. Bd., 2020 Ida LEXIS 114
Cargo
What can you get in discovery when the issue relates to whether the product was damaged? The Middle District of Florida found that the motor carrier could not overcome the rebuttable presumption that documents prepared before its insurer’s definitive denial of the claim against the insurance policy were created in anticipation of litigation. Rather, from the submissions provided, documents generated before the transmission of the claim denial letter were created in the ordinary course of business to investigate the insurance claim and were therefore subject to disclosure. Scotlynn USA Division, Inc. v. Titan Trans Corp., 2020 WL 3100087
If the shipment is transported in violation of FDA temperature guidelines does that mean that the shipper has proven the product unfit? The Southern District in Florida said no concluding that it was not enough to prove damages. While the carrier did breach the contract by failing to pick up the international shipment of fish within the time of performance that was not enough to meet all of the elements necessary for summary judgment. In a related motion the court held that the trucker could not assert an indemnity or negligence claim against the steamship line where the cargo sat for the extra days. Underwriters at Interest v All Logistics Grp. 2020 U.S. Dist LEXIS 91810
Another default judgment. This month the Eastern District of California granted judgment for the non-delivery of a shipment of wine. USA Truck v. Jugan Express, Inc., 2020 WL 3451580
Thanks for joining us,
Jean & Chad
