CAB Bits & Pieces September 2019

Good Day CAB Nation!

We hope your September is great. We’re certainly upon busy season in the industry. Many of us will be in Orlando for the MCIEF in early October. We will have a table at the conference and we encourage you to come by and visit. We’ll have some fabulous gifts and prizes. We hope to see you there!

Later on this month Jean will be presenting at the IMUA Southeast Regional Meeting on current issues with cargo exposures. Come on by –Click here to learn more about the program:

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Have a great month!

CAB’s Tips & Tricks: This month’s tip is located in the CAB Report® on the General Tab. Some of you may have already discovered it, but is serves an important purpose to help understand the ISS-CAB value. Have you ever wondered why a motor carrier has been assigned a specific ISS-CAB color, be it red, yellow or green? Well, we have a quick way to figure it out.

We know CAB-ISS values and colors are based on different CAB BASIC Scores being in or out of Alert level. Certain BASICs Categories are best addressed at the roadside via intervention. Users have wondered why is the ISS-CAB color yellow instead of red or the like. In order to find that out, I encourage you to hover (don’t click) over the words *Why this score? (Green arrow). As the image below shows, a box will appear that will tell you the reason for the score.

There are numerous variations of CAB BASICs scores that create the ISS-CAB numerical value. Next time you’re reviewing a CAB Report® make sure to hover over *Why this score? to better understand why a motor carrier has been assigned a certain value and color.

We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are a customer driven company and our goal is to help you Make Better Decisions!

This month we report:

Driver Detention Study Shows Negative Effect on Productivity & Regulatory Compliance: American Transportation Research Institute (ATRI) recently released a study that delved into the relationship between shipper detention time and what happens on the road. It was found that detention has a significant impact on drivers’ ability to comply with Hours of Service (HOS) regulations. Both frequency and time has increased from 2014-2018. These increased detention times can frustrate drivers and put them behind schedule. Additionally, this situation could result in the driver taking additional risks to get the load delivered on time. The study also noted that women drivers are even more affected than men. The report noted that women were 83% more likely to be delayed six hours or more compared to men. CAB also reports on the amount of time that a motor carrier actually spends being inspected – another negative impact on productivity. If you’d like additional information on the ATRI study, please click here.

Trucking Company Failures Continue in 2019: Thus far in 2019, well over 600 motor carriers have failed. That number is more than double all of 2018, which were just over 300 companies. The blame seems to fall on the reduction of spot rates and a hangover from one of the greatest years in trucking, 2018. Other contributors included are tariffs and increased driver pay. The pain will likely continue as pricing will likely struggle into the near future.

CVSA Releases 2019 Operation Safe Driver Week Results During the Commercial Vehicle Safety Alliance’s (CVSA) Operation Safe Driver Week, July 14-20, 2019, commercial vehicle enforcement personnel in Canada and the United States took to North America’s roadways to identify drivers engaging in unsafe driving behaviors and issue citations and/or warnings. Officers issued 46,752 citations and 87,624 warnings to drivers for traffic enforcement violations, ranging from speeding to failure to wear a seatbelt. Drivers’ actions contribute to 94% of all traffic crashes. The Operation Safe Driver Week enforcement initiative is the commercial motor vehicle (CMV) law enforcement community’s response to this transportation safety issue. Through traffic safety initiatives, such as Operation Safe Driver Week, law enforcement personnel aim to deter negative driver behaviors and reduce the number of crashes involving large trucks, motorcoaches and passenger vehicles by identifying and citing drivers exhibiting risky driving behaviors and tendencies.

 

 

 

 

During this year’s Operation Safe Driver Week, passenger vehicle drivers received 16,050 state/local driver citations and 29,145 warnings, and CMV drivers received state/local driver 6,170 citations and 27,163 warnings. For more information on the results, click here.

CAB Calculates Inspection Selection System (ISS)-CAB Ranges Based on Power Units: 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 of 9/10/19. 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.

U.S. DOT Awards over $77 Million in Grants to Improve Commercial Vehicle Safety: The grants were awarded to states and educational institutions.

$43.3 million in High Priority (HP) grants was awarded to enhance states’ commercial motor vehicle safety efforts, as well as to advance technological capability within states. FMCSA’s High Priority (HP) grant program is designed to provide financial assistance to state commercial vehicle safety efforts, while HP-ITD grants provide financial assistance to advance the technological capability and promote the deployment of intelligent transportation system applications for CMV operations. A full list of this year’s HP grant awardees can be found here.

$32 million in Commercial Driver’s License Program Implementation (CDLPI) grants to enhance efforts by states to improve the national commercial driver’s license (CDL) program. This program provides financial assistance to states to achieve compliance with FMCSA regulations concerning driver’s license standards and programs. A full listing of this year’s CDLPI grant awardees can be found here.

$2 million in Commercial Motor Vehicle Operator Safety Training grants to sixteen education institutions to help train veterans for jobs as commercial bus and truck drivers. FMCSA’s Commercial Motor Vehicle Operator Safety Training grant program awards grants to a variety of educational institutions that provide commercial truck and bus driving training. A full listing of this year’s grant awardees can be found here.

CVSA Releases Results from 2019 International Roadcheck: On June 4-6, 2019, inspectors conducted 67,072 inspections on commercial motor vehicles in Canada and the U.S. as part of the Commercial Vehicle Safety Alliance’s (CVSA) International Roadcheck. During those three days, 12,019 vehicles were removed from roadways due to critical vehicle inspection item violations and 2,784 drivers were placed out of service for driver-related violations. That’s a 17.9% overall vehicle out-of-service rate and a 4.2% driver out-of-service rate.

• 45,568 Level I Inspections were conducted; 21.5% (9,817) of those inspected vehicles were placed out of service.
• There were 60,058 Level I, II and III Inspections conducted in the U.S.
• There were 7,014 Level I, II and III Inspections conducted in Canada.
• The total vehicle out-of-service rate in the U.S. was 17.7%.
• The total vehicle out-of-service rate in Canada was 19.9%.
• 4.4% of drivers inspected in the U.S. were placed out of service.
• 2% of drivers inspected in Canada were placed out of service.

Vehicle and driver out-of-service conditions were as follows:

Inspectors also discovered 748 seat belt violations. According to FMCSA’s latest Seat Belt Usage by Commercial Motor Vehicle Drivers Survey, the overall safety belt usage rate for drivers of medium- and heavy-duty trucks and motorcoaches was 86% in 2016. You can read the complete CVSA release, here.

Truck Driving Jobs: Are they Headed for Rapid Elimination? A recent study released by Maury Gittlemen and Kristen Monaco of the Bureau of Labor Statistics conclude media stories predicting the imminent loss of truck driving jobs is overstated. Main factors include:

1. The number of truckers is “inflated due to a misunderstanding of the occupational classification system used in federal statistics.”
2. Truckers’ skills other than driving will always be in demand.
3. Some trucking segments will be more difficult to automate than others.

That’s the good news for truckers in general. However, there is some bad news for long-haul truckers. “Long-haul trucking (which constitutes a minority of jobs) will be much easier to automate than will short-haul trucking (or the last mile), in which the bulk of employment lies,” the reports states.

The study surmises that thousands, not millions, of trucking jobs may be at a limited risk as a result of automation. One of the key points raised is that there’s more to trucking than driving as the graph above shows. If you’d like more information on the study, click here.

FMCSA has extended Hours of Service Public Comment Period: Based on the requests of the American Trucking Associations, the Commercial Vehicle Safety Alliance, and the International Brotherhood of Teamsters, the commend period has been extended two additional weeks to October 21, 2019. Thousands of comments have already been submitted. The five proposed changes are:

1. Changing the short-haul exception from certain commercial motor vehicle drivers from 12 to 14 hours and extending the distance limit from 100 air-miles to 150 air-miles.
2. Extending the adverse driving conditions exception by two hours.
3. Requiring a minimum 30-minute break before eight consecutive hours of driving time occurs. The break would be for at least 30 minutes and could be satisfied with on-duty, not driving time, or off-duty time, rather than just off-duty time.
4. Modifying the sleeper-berth exception to allow drivers to split their required 10 hours off-duty time into two periods of at least seven consecutive hours in one period and not less than two consecutive hours either off-duty or in-the-sleeper berth.
5. Allowing one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truck driver’s 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift.

If you’d like to comment or review the comments, click here.

In addition, the FMCSA has published its rulemaking removing the restrictions on the restart provisions. The restrictions limited its use to once every 168 hours and required that a restart include 2 periods between 1 a.m. and 5 a.m.

Trucking Organizations ask Congress to Defeat Four Bills: Groups argue bills would harm trucking and have no positive impact on safety. The Owner-Operators Independent Drivers Association (OOIDA) has taken the lead but has generated support from 31 other organizations. A letter has been sent to the leaders of the congressional committees overseeing the surface transportation reauthorization legislation. The four bills being opposed are:

H.R. 1511/S. 665, the Stop Underrides Act pertains to requiring the installation of front, side and rear underride guards on all trailers over 10,000 pounds.

S. 2033, the Cullum Owings Large Truck Safe Operating Speed Act of 2019 pertains to 65 m.p.h. speed limiters for all Commercial Motor Vehicles over 26,000 pounds.

H.R. 3773, the Safe Roads Act pertains to mandating that all new CMVs be equipped with and utilize an automatic emergency braking (AEB) system.

H.R. 3781, the INSURANCE Act pertains to raising the minimum liability coverage for motor carriers from $750,000 to over $4.9 million.

If you’d like the review organizations open letter, please click here.

Interesting Tidbits:

Former Cal DMV Worker Sentenced to Federal Prison: Aaron Gilliam pleaded guilty to conspiracy to commit bribery, identity fraud and unauthorized access of a computer in U.S. District Court for the Eastern District of California in Sacramento. He was sentenced to 22 months in federal prison for his part in a fraudulent commercial driver’s license scheme. Prosecutors alleged that Gilliam, who processed applications for CDLs, accessed the DMV’s database altered records to show that they had passed the written examination when, they had not passed. Some applicants had not even taken the test. At least 57 fraudulent CDLs and permits were issued by Gilliam in exchange for money between April 2016 and July 2017. Court documents said that Gilliam worked with two co-conspirators, who were owners of truck driving schools in Southern California. Truck driving students would pay money to the two co-conspirators, who, in turn, would pay Gilliam and other DMV employees, to receive their CDL licenses without “having to take or pass the written and behind-the-wheel driving examinations.” Gilliam has been ordered to report to prison on Oct. 25. He will also serve three years of supervised release and pay a $100 special assessment fee.

 

CASES

Auto

A motor carrier’s efforts to have a punitive damages claim dismissed early in the litigation failed in the Middle District in Pennsylvania. The court held that where the defendants are alleged to have violated Federal Motor Carrier Safety Regulation 395 “dealing with hours of service” and Regulation 383 “dealing with required knowledge and skill” without regard to the safety of other motorists the plaintiff sufficiently alleged facts to support a punitive damages claim. Shelton v. Gure, 2019 WL 4168868

The Supreme Court in Alabama refused to transfer a wrongful death case filed against a trucking company to a different Alabama county. The court held that both counties were proper. The court held that the defendants did not establish that their selected county was a significantly more convenient forum. Ex Parte KKE, LLC. 2019 WL 4385803

A driver and his trucking company employer were successful in having punitive damages claims dismissed in the Northern District of Mississippi. The court held that while there was an accident there were insufficient allegations which would support a punitive damages claim. The court also held that the employer could not be liable for punitive damages if the only claim against the employer was based upon vicarious liability. Rasdon v. E3 Trucking, 2019 WL 434657

Another jury verdict was upheld in a two truck accident in the Middle District in North Carolina. The court found that the Plaintiff was entitled to compensatory damages for future disability, medical expenses, and pain and suffering in the amount of $116,897.91 — $30,297.91 for past medical treatment, $16,000.00 for lost wages, $55,000.00 for past pain and suffering, and $15,600.00 for future medical expenses, disability, and pain and suffering. Graciano v. Blue Sky Logistics, LLC. 2019 WL 4393381

Plaintiff was permitted to pursue claims against anyone involved in a transportation accident which resulted in yet another multi-truck accident. When the court had already ruled that the defendants would stay in the case when deciding the initial motion to dismiss the court held that the supplemental complaint filed by an intervening insurance carrier would also stand as no new reasons for dismissal were proffered by the defendant. Burrell v. Duhon, 2019 WL 4316871

Plaintiff was stuck with a $10,000 settlement from a multi-truck accident (noticing a pattern this month?) which he claimed he had not agreed to. The Southern District in Ohio held that the plaintiff had agreed to the settlement in exchange for a general release. The defendant motor carrier was not, however, successful in recovering attorney’s fees for the motion. Qureshi v. Indian River Transport, 2019 WL 4345697

The Supreme Court in South Dakota upheld a jury verdict in favor of one trucker against another trucker in an action arising out of a multi-truck accident. The court held that the circuit court did not abuse its discretion when it allowed plaintiff’s treating providers to testify about the permanency of his injuries, and its decision to allow undisclosed opinions about the impact of the injuries did not create prejudice sufficient to warrant reversal. The verdict of almost one millions was held not to be the result of passion or prejudice. Weber v. Rains, 2019 WL 4197109

A shipper was unsuccessful in its efforts to be removed from a personal injury action on the basis that it had sold the business before the loss. The Eastern District in Tennessee held that questions of fact remained as to the assignment of the logistics agreement. Bass v. Kodirov, 2019 U.S. Dist. LEXIS 161599

And yet another multi-truck accident decision! The District Court in New Mexico held that while it might have been advisable for the plaintiff to maintain his vehicle in the damaged condition before filing suit, the facts did not warrant an outright dismissal of the complaint or an adverse instruction regarding the evidence. The court denied the motion to dismiss for spoliation of evidence. Hernandez Concrete Pumping, Inc. v. Duquette, 2019 WL 4303323

The verdict against a trucking company for property damage when the vehicle collided with the plaintiff’s property was upheld in the Court of Appeals in Tennessee. The court agreed that while there was a negligence claim there was no evidence to support the claim for trespass or gross negligence or punitive damages. The court did allow for prejudgment interest. Twenty Holdings, LLC v. Land South TN, LLC, 2019 WL 4200970

A truck driver was successful in getting summary judgment on a negligence claim filed by a plaintiff following a truck accident. The Appellate Division in New York concluded that there was no material question of fact and agreed that the accident was caused by the driver of the passenger vehicle and not the truck driver. Nunez v. Nunez, 2019 WL 4418882

Same result for another driver and his employer in the Court of Appeals in Indiana. The driver had a fatal heart attack while operating his vehicle causing it to leave the roadway and damage property of the plaintiff. Even if the driver was statistically at an elevated risk for sudden death due to cardiac disease, and had three out of thirteen medical conditions that put him at a statistically higher risk of a vehicle crash he had a medical examiner’s certificate, had never had a heart attack and there was no way for anyone to anticipate the heart attack. Alexander v. Djuric, 2019 WL 4562408

The Northern District in West Virginia dismissed a third party complaint filed by a trucking company against the truck rental company. Under West Virginia’s current statutory scheme the third party plaintiff needed to allege sufficient facts to implicate the exception to the “several liability” now in place. Clovis v. JB Hunt, 2019 U.S. Dist. LEXIS 160359

A claim of gross negligence was dismissed against a trucker who backed into a plaintiff’s vehicle. The Southern District in Texas held that there was no issue of material fact to be resolved and the actions of the driver did not create an extreme risk of serious injury that rose above mere carelessness. Rollins v. Calderon, 2019 U.S. Dist. LEXIS 160577

While defendants, the driver and motor carrier, were unsuccessful in obtaining dismissal of a wantonness claim they were able to have claims of negligent hiring, training, supervision and entrustment dismissed. The Northern District in Alabama held that the allegations that the driver was not maintaining a safe distance, was not looking ahead, was driving at a dangerous speed, was distracted by electronic devices, and was fatigued from working more hours than permitted by the Federal Motor Carrier Safety Regulations was enough to support the wantonness claim. Laney v. Malone 2019 WL 4538520

A truck broker was successful in getting a personal injury action dismissed, leaving the plaintiff to pursue only a claim against the motor carrier. The Western District in Oklahoma that reading the safety exception under FAAAA to include a negligence claim alleging that the broker overlooked a r’s “conditional” rating and selected an unsafe motor carrier that used incompetent or careless drivers and entrusted its vehicles to such drivers would be an unwarranted extension of the exception to encompass a safety regulation concerning motor carriers rather than one concerning motor vehicles. Loyd. v. Salazar, 2019 U.S. Dist. 160694

Removal under diversity is not automatic when the plaintiff fails to allege that the damages suffered are under the $75,000 minimum jurisdictional requirement. The Middle District of Louisiana concluded that the defendant needed to specifically introduce evidence that the damages were in excess of the minimum. Chestnut v. Hodges, 2019 U.S. Dist. LEXIS 160725

Cargo
A motor carrier’s request for dismissal of state law claims under the doctrine of Carmack Amendment preemption failed in the Southern District of New York The court held that a contract which provides“[t]his contract service is designed to meet the distinct needs of the customer and the parties expressly waive all rights and obligations allowed by 49 U.S.C. 14101 to the extent they conflict with the terms of this contract” is an express waiver of the Carmack Amendment as the exclusive remedy. The court held that there was no need to specifically reference a waiver of ICTA. Aviva Trucking Special Lines v. Ashe, 2019 WL 4387339

In another decision the same court held that a motor carrier was liable only under the Carmack Amendment for damage which occurred when goods were transported from the pier in New Jersey to Connecticut. The court further held that the plaintiff did not establish a basis for jurisdiction in New York and agreed that a BOC-3 filing will not confer jurisdiction alone. Hartford Fire Ins. Co. v. Maersk Lines, 2019 WL 4450639.

Is a motor carrier liable for damages when it fails to pick up a shipment which is then damaged because it sat around too long in warm temperatures? The Southern District of Florida held that the motor carrier could be liable for breach of contract, but not negligence. The court held that contractual liability could arise before physical acceptance of the load. Underwriters at Interest v. All Logistics Grp, 2019 U.S. Dist. LEXIS 160033

Worker’s Compensation
The Court of Appeals in Illinois confirmed that the Illinois Guaranty Fund was not responsible for worker’s compensation benefits for an insurer in liquidation. The court concluded that the driver was legally employed by a trucking company who was actually insured by a solvent carrier. Worker’s compensation benefits were due from that insurer and not the Fund. The confusion over mergers of trucking operations is detailed in this decision, showing once again how critical it is to Know Your Insured. Illinois Insurance Guaranty Fund v. Priority Transportation, Inc. 2019 Il App (1st) 181454

The Missouri Court of Appeals affirmed a decision of Labor and Industrial Relations Commission to award workers’ compensation benefits to the plaintiff, an over-the-road truck driver who was diagnosed with post-traumatic stress disorder (PTSD) after his truck overturned on the interstate, after finding claimant had suffered permanent and total disability, and to award compensation for claimant’s wife’s past nursing services. Reynolds v. Wilcox Truck Line, Inc. 2019 WL 4418285

Thanks for joining us,

Jean & Chad

CAB Bits & Pieces August 2019

Good Day CAB Nation!

Summer is coming to an end and if you’re like many folks, final summer vacations are in the books, kids are heading back to school, and football season is on its way. We hope your month was fantastic and we look forward to what the remainder of the year has to bring.

In other CAB news: We are very excited to introduce you to our newest team member, Sean Gardner, who is joining us as our Senior Account Executive. Sean has been a frequent user of CAB over the past 12 years and brings a unique loss control perspective to our team due to his experience as an underwriter and a claims adjuster. His first job in the insurance industry was with CAB as an intern in 2005 and 2006 before branching out into other areas or the insurance business. Starting with his 10+ years as an Inland Marine Underwriter for some of the most recognizable insurance companies all the way through his time as claims adjuster, Sean knows what it takes to evaluate, correct, and monitor transportation risks to minimize loss and to truly understand the operations of a carrier. He will be reaching out to many of you in the coming months and is bringing many new ideas on the services provided to you by CAB. Sean will be attending the Motor Carrier Insurance Education Foundation (MCIEF) along with other CAB team members with me in early October. We look forward to introducing him (and in some cases re-introducing.)

Follow us at: CAB LinkedIn Page CAB Facebook Page

Have a great month!

CAB’s Tips & Tricks:

As we continue to add enhancements to the website, it’s important to remember that the majority of them are brought to us by you, the users. Please feel free to reach out to us and let us know if you have any fantastic ideas on how we can bring you data with more clarity.

This month’s enhancement is located on the Inspections/Accidents tab of the CAB Report®. Some of you may have already noticed that we’ve slightly changed the look of the Unit Summary section at the top of the page. We recently added the Time Spent Inspected area (yellow highlight). You’ll notice this example motor carrier shows 1 Day, 1 Hour & 37 minutes being inspected during the prior 12 months (green oval). Additionally, over the last 24 months (green oval) shows that the motor carrier was inspected 3 Days, 2 Hours and 34 Minutes.

Additionally, we’ve adjusted the arrangement of the data for the Units, License Numbers, Inspections by Vehicle Age and Unit Registration States. You can toggle between 12 Months, 24 Months or a Side By Side view (maroon arrow).

This data set has been provided to help users get an understanding of how much time a motor carrier is being inspected over 12 and 24 months periods. Depending on the number of units, CAB-BASIC Scores and ISS-CAB Values, radius and the like, this motor carrier could be spending an inordinate amount of time being inspected. It’s important to understand that the time listed only accounts for the time the Motor Carrier Enforcement Officer logs while doing an inspection. An inspection could last a few minutes to well over an hour. It does not account for the time waiting for a tire to be replaced, a driver to get the proper 10-hours of rest or any other Out of Service (OOS) violation.

Motor carriers with a relatively high number of inspected hours have could be at higher risk of driver injuries due to additional time spent entering and exiting the vehicle, cargo loss due to extended periods of non-movement and higher CAB-BASIC Scores & ISS-CAB Values that could result in additional enforcement including Compliance Reviews.

We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are a customer driven company and our goal is to help you Make Better Decisions!

This month we report:

FMCSA’s Crash Preventability Program Proposed to be Permanent-7 Additional Types of Crashes to be Included: Since August 2017, the FMCSA has reviewed 5600 Commercial Motor Vehicle (truck & bus) crashes and has found the 94% were determined to be not preventable by the motor carrier or commercial driver. In short, the agency stated that data drives their decisions and the demonstration program has resulted in the program becoming permanent. The agency’s plan includes improvement and expansion of the program. The program requires that a motor carrier submit compelling evidence that the crash was not preventable. Once a final determination is made, the agency would note the findings on the Safety Measurement System website. No crashes will be removed from the Crash Indicator BASIC. However, logged-in motor carriers viewing their own data will see an alternative percentile with the not preventable crashes removed. The 15 types of crashes that can be evaluated are as follows:

• Struck in rear;
• Legally stopped or parked;
• Suicides or suicide attempts;
• Wrong direction;
• Animal strikes;
• NEW: Driving under the influence;
• Infrastructure failure or struck by cargo, equipment, or debris;
• NEW: When the commercial motor vehicle (CMV) is struck on the side in the rear;
• NEW: When the CMV is struck by a vehicle that did not stop or slow in traffic;
• NEW: When the CMV is struck by a vehicle that failed to stop at a stop sign, red light, or a yield sign;
• NEW: When the CMV is struck by a vehicle making a U-turn or an illegal turn;
• NEW: When the CMV is struck by a driver who admits falling asleep or admits distracted driving;
• NEW: When the CMV is struck by a driver who experiences a medical issue which causes the crash;
• NEW: When the crash involved a driver under the influence, even if the CMV was struck by another vehicle involved in the crash and not by the individual under the influence;
• NEW: When the crash involved a driver in the wrong direction, even if the CMV was struck by another vehicle involved in the crash and not by the driver operating in the wrong direction.

Additional information on the Crash Preventability Determination Program Proposal can be found here.

CAB Calculates Motor Carriers Over or Under CAB-BASICs Thresholds: The first table shows the number of carriers in each power unit range with a percentile under or over the alert threshold in each BASIC category. The second table shows the percentage of carriers in each power unit range with a percentile over the alert threshold 1) out of carriers with a percentile, and 2) out of carriers with a relevant inspection. For the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Note that different CAB-BASICs and different types of carriers (i.e. regular, hazmat, passenger) have different thresholds. Percentiles are as of the snapshot date of July 26, 2019. A carrier’s number of power units is from the most recent carrier registration data we have for that carrier. Carriers with no or unknown number of power units are not included.

FMCSA Publishes Long Awaited Proposed Hours of Service Rules: The Agency has published a notice of proposed rulemaking (NPRM) on updates to hours of service (HOS) rules to increase safety and provide additional flexibility for commercial drivers. This proposal has been widely anticipated. The proposed rule on hours of service rule offers five key modifications to the existing HOS rules:

• Changing the short-haul exception available to certain commercial drivers by lengthening the drivers’ maximum on‑duty period from 12 to 14 hours and extending the distance limit within which the driver may operate from 100 air miles to 150 air miles.
• Modifying the adverse driving conditions exception by extending by 2 hours the maximum window during which driving is permitted.
• Increasing flexibility for the 30-minute break rule by tying the break requirement to 8 hours of driving time without interruption for at least 30 minutes, and allowing the break to be satisfied by a driver using on duty, not driving status, rather than off duty.
• Modifying the sleeper-berth exception to allow drivers to split their required 10-hours off duty into two periods: one period of at least 7 consecutive hours in the sleeper berth and the other period of not less than 2 consecutive hours, either off duty or in the sleeper berth. Neither period would count against the driver’s 14‑hour driving window.
• Allowing one off-duty break of at least 30 minutes, but not more than 3 hours, that would pause a truck driver’s 14-hour driving window, provided the driver takes 10 consecutive hours off-duty at the end of the work shift.

Additional information and comments from U.S. Transportation Secretary Elaine L. Chao and FMCSA Administrator Raymond P. Martinez can be found here.

Cargo Thefts Drop 14% in 2^nd Quarter: There were 150 incidents with the average theft being roughly $153,000 for an estimated loss of $23 Million stolen in the U. S. & Canada. Over the first two quarters of 2019, trailer burglaries were the preferred method of theft, although fictitious pickups are on the rise as well. Food and beverages are the most common stolen items, followed by household items. The top three states for thefts were California, Florida and Texas.

FMCSA releases Drug & Alcohol Clearinghouse Query Plan: The agency announced the fee structure for motor carriers to purchase queries when the Drug & Alcohol Clearinghouse becomes accessible on January 6, 2020. A query, will be required by carriers to determine if current or prospective employees are prohibited from performing safety-sensitive functions, such as operating a commercial motor vehicle (CMV), due to unresolved DOT drug and alcohol violations. The query must be conducted by an employer or its designated consortia or third-party administrator.

There are two types of queries: 1.) Limited, which checks for the presence of information in the queried driver’s clearinghouse record and requires driver consent outside of the database; and 2.) Full, which discloses to employers and designated C/TPAs detailed information about any resolved or unresolved violations in a driver’s record and requires a driver clearinghouse account to provide the driver’s consent via the portal.

The agency charge will be a flat fee of $1.25 for every limited or full query and offer bundles depending on usage. However, bundles do not provide a discount unless an unlimited bundle plan for $24,500 is purchased. Queries are a required part of any pre-employment driver investigation for drivers and must be conducted at least annually for every driver. For additional information on the Query Plans, click here.

Commercial Auto Rates Expected to Continue to Rise: It was reported this month that commercial auto policy holders can expect ongoing price increases. This is due to U. S. Property & Casualty insurers continuing to reduce capacity due to heavy underwriting losses in the category. The segments combined ratio for 2018 was 108%, down from 111% in 2017. This results in commercial auto insurers expecting a ninth consecutive year of underwriting losses in 2019. This has resulted in 31 straight quarters of price increases, culminating in a nearly 9% increase in the first quarter of 2019.

FMCSA Proposes Unified Carrier Registration Fees for 2020 & 2021: The agency has proposed to reduce UCR fees for 2020 and then increase in 2021. The proposed fees for the 2020 registration year would be reduced below the 2018 registration fee level by roughly 13%. The proposed fees for the 2021 registration year would be reduced below the 2018 registration fee level by about 4%. The overall cost of UCR depends on the number of Commercial Motor Vehicles operated and would range from about $2 to $1,629 per company in 2019. A notice of proposed rulemaking can be viewed here.

CVSA Removes 1600+ Commercial Motor Vehicles from Roadways for Critical Brake Violations: On May 15, 2019, the Commercial Vehicle Safety Alliance’s (CVSA) law enforcement members conducted 10,358 commercial motor vehicle inspections focused on identifying brake system violations. This program was part of the CVSA’s unannounced Brake Safety Inspection Initiative. Of those inspections, 16.1% of vehicles had brake-related critical vehicle inspection items. Those 1,667 vehicles were placed out of service until the violations could be corrected.

• 55 jurisdictions participated – 45 U.S. states and territories and 10 Canadian provinces and territories.
• A total of 10,358 inspections were conducted.
• The U.S. conducted 8,738 commercial motor vehicle inspections; Canada conducted 1,620.
• 16.1% or 1,667 of commercial motor vehicles inspected were placed out of service for brake violations.
• In the U.S., 16.6% of commercial motor vehicles were placed out of service for brake violations.
• In Canada, 13.5% of commercial motor vehicles were placed out of service for brake violations.
• Nearly 84% of commercial motor vehicles inspected did not have any critical brake-related inspection item violations.

CVSA is holding another brake safety enforcement event this year, Brake Safety Week, which is scheduled for Sept. 15-21, at participating jurisdictions throughout North America. The week is an annual outreach and enforcement campaign designed to improve commercial motor vehicle brake safety.

FMCSA Revises Bus Lease, Interchange Regulations: The final rule has the following provisions: Revises the definition of lease to exclude carriers with FMCSA-issued operating authority that grant the use of their vehicles to each other; Removes the May 27, 2015, final rule’s marking requirements and reinstates the previous vehicle marking requirements with slight modifications; Revises the provision allowing a delay in the completion of a lease during certain emergencies; and Removes the requirement that motor carriers chartered for a trip who lease a commercial motor vehicle from another carrier to provide the transportation must notify the tour operator or group of passengers about the lease and the lessor. The compliance date to meet requirements for motor carriers is January 1, 2021. FMCSA said the ruling will ease regulatory concerns for about 8,400 bus companies comprising 547,000 trips per year. According to the FMCSA, about 75 percent of the carriers will experience regulatory relief and will no longer be subject to lease and interchange requirements of the 2015 final ruling. FMCSA estimates the ruling will create $8.3 million in regulatory cost savings. The rule can be reviewed and commented on here.

Interesting Tidbits:

$280 Million Jury Award for Semi, SUV Crash that Killed 5: On August 23^rd, a Muscogee Co., Georgia Jury awarded plaintiff Larry Madere over $280,000,000 in his wrongful death suit against Schnitzer Steel. The suit was filed after the fatal crash that occurred on Highway 80 in Alabama. The Schnitzer vehicle crossed the centerline and struck the vehicle Madere, his family & friends were riding in. The Prosecutor questioned if the driver fell asleep. The company had another serious crash in 2016 as well.

 

CASES

AUTO
A reminder to all claims folks that payments made by an insurer under a MCS-90 filing can be recovered from the motor carrier. The Middle District in Alabama granted a default judgment to an insurer for a payment made under the filing. The judgment was granted without even the necessity of a hearing on damages. Berkshire Hathaway Homestate v. Adams, 2019 WL 3418594

What can an Accident Reconstructionist testify too? The issues are often complex and so tied to the specific events of a loss. Interesting decision in the District Court in Arizona win which the court considered issues with respect to lighting, reaction time and whether the accident was avoidable. Manion v. Ameri-Can Freight Systems, Inc. 2019 WL 3858415

A motor carrier was successful in getting a claim for negligent infliction of emotional distress dismissed. The court dismissed that claim but all other claims, including a punitive damage claim, were permitted to continue. The Middle District in Pennsylvania held that the decedent’s fiancé could not assert the claim as she was not present at the time of the unfortunate accident. Jenson v. St. Louis, 2019 WL 3765426

A truck driver’s argument that since he was paid worker’s compensation benefits the truck driver who hit him could not assert an affirmative defense of comparative fault failed in the District Court in Oregon in his action for damages. The court also held that the defendant could assert the negligence of the co-employee driver who was operating the truck the plaintiff was riding in. Poe v. Cook, 2019 WL 3842376

Rejecting a settlement offer runs its own risks. The District Court in Florida helped a trucker, at least a bit, after the trucker failed to accept a settlement offer. The court held that the punitive damages portion of the final award could not be included in the trial court’s calculation of “judgment obtained,” for purposes of statute governing award of costs of investigation and attorney’s fees based upon rejected settlement proposal. The demand for settlement was made before any claim for punitive damages was asserted. Palmentere v. Copeland, 2019 WIL 3402802

Try as the defendants might the court in the Northern District of Oklahoma was unwilling to grant summary judgment to a trucker on claims of punitive damages and negligent entrustment. The court held that there were too many questions of fact to permit that to happen. Of note is the fact that the court agreed that Oklahoma law will permit direct claims of negligence even the motor carrier concedes vicarious liability. Cox v. Swift Transportation, 2019 WL 3719887.

In a related decision both parties were also denied sanctions against the other for alleged spoliation of evidence. The court held that neither plaintiff nor defendant intentionally failed to retain ECM and Qualcomm data or electronic driver logs. Cox v. Swift Transportation, 2049 WL 3573668

The same was not true in the Southern District of Mississippi where the court held that when an employer admits vicarious liability, direct negligence claims for negligent hiring, training, supervision, retention, and entrustment asserted against the employer merge with the plaintiff’s claims against the employee. The court dismissed all direct liability claims asserted against a motor carrier that conceded vicarious liability. Brown v. Morrison, 2019 WL 3720053

A motor carrier sought leave to amend its answer to a complaint seeking damages based upon a theory that the accident was a set up by the plaintiff and others. The Eastern District in Louisiana concluded that the motor carrier could amend to add a defense that the negligence of plaintiff or others was the sole and proximate cause of the accident by intentionally causing the collision, purposefully sideswiping the defendant with an improper lane change. The motor carrier could not, however amend to allege a claim for fraud. Williams v. United States Fire Insurance Co., 2019 WL 3842003

A win for the trucker! The Northern District in Illinois granted summary judgment to a motor carrier. The court held that the plaintiff failed to establish that he actually suffered damages following a small fender bender with the defendant’s truck. LeBlanc v. Mr. Bult’s, Inc., 2019 WL 3776957

One company’s effort to assert FAAA preemption for a truck accident failed in the Southern District of Ohio. The court held that the defendant motor carrier failed to act diligently to assert an affirmative defense of preemption in light of the fact that an earlier court decision made it a viable defense. Mosley v. Spartan Freight Systems, 2019 WL 3818760

Who covers the accident? Non-trucking and trucking insurers fought it out in the Western District in Kentucky. The court denied the summary judgement requests of both insurers concluding that it was unclear whether the truck driver was furthering the business of the motor carrier at the time of the accident in a truck stop. The court also refused to conclude that the driver was a statutory employee of the trucker at the time of the accident. Certain Underwriters at Lloyd’s v. Morrow, 2019 WIL 3558177

Whether defendant violated the clear distance rule or there was a sudden emergency was still a question of fact in a suit arising from two truck accident. The Western District of Pennsylvania concluded that these issues were subject to further litigation. The court also dismissed the direct negligence claims against the motor carrier who conceded vicarious liability, stating that a plaintiff may not bring a direct negligence claim against an employer, when plaintiff does not have a viable claim for punitive damages against the supervisor/employer defendant. Collins v. Tate, 2019 WL 3817570

Another decision arising from a lawsuit around a multi-vehicle truck accident in the Middle District of Pennsylvania. Did you know that the CAB inspection data will highlight when there are more than one commercial vehicles involved in an accident. The court held that one defendant was not entitled to dismissal of the complaint because his vehicle did not hit the plaintiff. The court held that the plaintiff asserted sufficient facts to allow for the possibility that the defendant’s actions were a contributing cause. Sutcliffe v. Bernese, 2019 WL3776560.

An employer was unable to convince the court in West Virginia that the truck driver employee was only a nominal defendant in a suit for personal injury damages. The fact that the employer admitted vicarious liability and was fully defending the driver did not remove his relevance from the suit. Back to state court it went. Justice v. Halliburton Energy Services, Inc., 2019 WL 3991067

When the insurer goes into receivership the insured can find it exposed to additional expenses. The Northern District of West Virginia held that the motor carrier was responsible for special masters fees which were incurred in resolving a multi-vehicle accident. While engaging the special master was agreed to by the insurer, it was in receivership and unable to pay the fee. It fell to the carrier. Spirit Commercial Auto RRG v. Shreve, 2019 WL 3947916

The fight over what defenses could be raised by the motor carrier in a suit seeking damages for personal injuries was decided in the Western District of Washington. The court held that ‘that all rights of way are relative and the duty to avoid accidents or collisions at street intersections rest upon both drivers” The motor carrier was entitled to assert the affirmative defense of contributory negligence of the plaintiff, but not anyone else. Waller v. Mann, 2019 WL 3996866.

And yet another suit involving a multi vehicle truck accident, this time in the Northern District in Illinois. This time the court denied a motion to dismiss filed against a rental company for negligent entrustment of the vehicle to a motor carrier with a poor safety record. The court held that there was enough evidence to potentially allow that claim to continue. Favorite v. Sakovski, 2019 WL 3857877

CARGO

Plaintiff’s claims for various state law damages arising from the loss of all of her household goods during a transit fire failed in the Southern District in Florida. The court held that all of plaintiff’s claims were preempted by Carmack. The plaintiff was given short leave to amend a complaint to assert a claim for loss arising out of the potential improper salvage goods Meyer v. Suitable Movers, 2019 WL 3457614

The carrier who subcontracted a load to another carrier was entitled to recover the invoice value of a shipment of beef which was not timely delivered. The Western District in Tennessee held that the plaintiff had shown that a delayed shipment of fresh beef would render the shipment valueless and subject the defendant to Carmack liability for the loss. Logistics Buddy Transportation v. VS Carriers, Inc., 2019 WL 3938485

Even in Carmack cases the defendant must obtain the consent of all defendants to remove the case to federal court. The Northern District in Texas remanded a case back to state court when one defendant failed to obtain consent from a second served defendant. Skyglass v. Partnership, LLC, 2019 WL 3819282

A default judgment was entered against a motor carrier in the District Court in New Jersey. While the court did give the plaintiff the value of the goods and prejudgment interest an unsupported claim for incidental damages was denied. Hanesbrans v. SCS Express, LLC 2019 U.S. Dist. LEXIS 133122

A consignee’s efforts to argue that a shipment was only intra-state and not subject to Carmack failed in the Eastern District of North Carolina. The court held that the fact that the goods might stop in a temporary warehouse or other staging facility does not transform the nature of the shipment from interstate to intrastate when the goods are destined for interstate transport. Moreover the consignee was bound by the arbitration clause in the shipper motor carrier contract. Mount Olive Pickle Co. v. Tidewater Transit Co., 2019 WL 3764608

When the state of Utah had nothing to do with transportation of goods from New York to Nevada, the plaintiff could not establish personal jurisdiction over one of the defendants who packed the cargo in New York and then transported it to Nevada. The District Court in Utah agreed that the plaintiff had to meet Carmack venue provisions, as well as establish the requisite personal jurisdiction. Calder v. Bay Shore Moving & Storage, 2019 WL 2430117

A truck broker was found liable as a motor carrier for the theft of a shipment of lobsters. The District Court in Massachusetts held that the broker acted as a carrier and therefore bore liability under the Carmack Amendment. The shipper did have to pay for other loads where payments had been withheld. Richwell Group v. Seneca Logistics Group. 2019 WL 3816890

WORKER’S COMPENSATION
An employer who does not subscribe to worker’s compensation is subject to a direct suit by an employee. While that is true, the court did conclude that the trucking company owed no duty to train or supervise a driver on the specific hazards associated with operating an end-dump truck in the vicinity of overheard electrical wires. Summary judgment went in favor of the motor carrier. Garcia v. MTZ Trucking, 2019 WL 3720620

Thanks for joining us,

Jean & Chad