CAB Bits & Pieces May 2019

Good Day CAB Nation!

As the saying goes, April showers, bring May flowers. However the erratic weather in parts of the country has done little to make it feel like summer is here to stay.

If you’re like my family, you’re in the midst of the end of the school year, which brings graduations and commencement ceremonies for the younger generations. We at CAB would like to wish all of the graduate’s success and a wonderful future as they take steps toward the next phase of their lives and careers.

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Have a great month!

CAB’s Tips & Tricks:

You may have noticed we’ve changed the layout of Carrier Central in the last couple weeks. You’ll note that we’ve added a Contact Radio Button which includes a drop down box with three options. Specifically, users now have a central area to search for phone numbers, email addresses and representatives.

You may have also noticed we’ve added a filter tool (orange arrow below) for search results in Carrier Central. This allows you to quickly filter your results via words or phrases once the search results are returned. This filter tools is also available in My Workspace. This enhanced functionality was put in place to provide additional speed and efficiency when searching for motor carriers.

We’ve also added a new training video to our ever expanding line up.

SALEs-This 15 minute web video provides an overview of the functionality and features of the SALEs lead generator tools. By reviewing the video you will get a better understanding of the SALEs features and learn tips to help you get the best results while using this powerful too. To view the webinar, click here.

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:

IMUA and CargoNet release U. S. Truck Stop Cargo Theft Data. Trucks stops are target rich environments and are spread all over America’s highway system. This reports provides data from 2012-2018 broken down into 4 major regions and 9 divisions. The report notes in the introduction “It is hoped that by highlighting certain common threads shippers, their trucking companies as well as individual drivers can make informed decisions on routing and stops for convenience, fuel or meals.” The report also details 9 Best Practices for protecting cargo. The full report can be downloaded here.

CAB CEO appears on IMUA Panel: Jean Gardner addressed emerging trends and challenges facing the trucking industry earlier this month at the IMUA Conference. Additional members of the panel were Ben Tuttle of Tokio Marine and Ron Wallace of Sompo. The panel discussion was tremendously informative and packed with interesting points. The session was facilitated by AM BestTV and can be viewed by clicking here.

FMCSA Moves Forward with Under 21 Driver Program : The FMCSA continues to move forward with the proposal that would allow younger drivers to operate commercial motor vehicles across state lines. The agency announced their intention via Federal Register Notice on May 14^th. The FMCSA is asking for public comment on the 18-20 yr. old proposal. The notice is requesting comment from stakeholders regarding this Federal Register Notice. The Federal Register Notice can be reviewed here.

International Roadcheck Set for June 4-6. Every year, for a 72 hour period the Commercial Vehicle Safety Alliance International Roadcheck focuses on a specific category of violations. This year’s emphasis is on steering and suspension systems which are a critical part of the overall safety system within a commercial motor vehicle. During the 2018 Roadcheck, 67,603 roadside inspections were conducted on large trucks and buses, the CVSA reports. From all inspections, inspectors identified 11,910 vehicles with out-of-service conditions and 2,666 drivers with out-of-service conditions. Of the North American Standard Level I Inspections conducted, 21.6% of commercial motor vehicles were placed out of service. The top vehicle out-of-service conditions were for brake systems (28%), tires and wheels (19%), brake adjustment (19%), and cargo securement (13%). Of the total number of drivers receiving a Level I, II or III inspection, 3.9% were placed out of service for driver-related violations. The top driver out-of-service conditions were for hours of service (1,328), wrong class license (649) and false record of duty status (309). Hours-of-service violations was the top reason drivers were placed out of service during the 2017 and 2018 International Roadcheck enforcement periods. There were 729 safety belt violations. For more information on this year’s Roadcheck, click here.

Everyone wants to get involved with the Hours of Service Changes: Representatives from the Trucking Industry met with the Office of Management & Budget to discuss Proposes HOS Regulations recently. The representatives included national trucking associations and agricultural focused stakeholders. The meeting took place ahead of the expected release of proposed HOS rules changes that are expected in early June. To make things even more interesting the House Appropriations Bill included a number of trucking related provisions including eliminating funding to enforce any rule that eliminates the 30-minute rest break or review or issue any decisions on petitions to preempt state meal and rest break laws that may differ from Part 395.

There are currently 22 states with Active Emergency Declarations, Waivers, Exemptions and Permits: These declarations might be related to national emergencies, wild fires, weather, fuel shortages and the like. To provide vital supplies and transportation services to a disaster area in the United States, emergency declarations may be issued by the President, Governors of States, or FMCSA. These declarations trigger the temporary suspension of certain Federal safety regulations, including Hours of Service, for motor carriers and drivers engaged in specific aspects of the emergency relief effort. An Emergency Declaration is limited to a maximum of 30 days unless extended by the FMCSA itself. For more information on specific declarations across the country, click here.

The FMCSA is Seeking Input on Testing Vehicles with Automated Driving Systems (ADS). The National Highway Traffic Safety Administration and FMCSA today issued advance notices of proposed rulemaking on the removal of unnecessary regulatory barriers to the safe introduction of automated driving systems (ADS) vehicles in the United States. NHTSA and FMCSA are seeking comments at this stage to ensure that all potential approaches are fully considered as the agencies move forward with these regulatory actions. For more information or to provide input, click here.

CASES

Cargo
A transportation broker was successful in defeating a cargo claim asserted against it in the Southern District of Texas. The court held that the broker bore no liability under the Carmack Amendment and that state law claims were preempted. The broker was held not to have a duty to insure that the motor carrier had insurance for the cargo which was being carried. Enbridge Energy, LP v. Imperial Freight, Inc. 2019 WL 1858881

Preemption was once again an issue, this time in the District Court of New Mexico. The court allowed plaintiff an opportunity to amend her complaint for cargo loss to allege a claim under the Carmack Amendment, which provides the exclusive remedy, as we repeatedly report. Rehburg v. Bob Hubbard Horse Transportation, 2019 WL 1995292

Carmack and preemption again! The Southern District of Alabama denied a plaintiff’s request to remand a claim for damage to goods in interstate commerce. The court, correctly, concluded that it had jurisdiction and no other claim, other than one under the Carmack Amendment, could be pled. Rollason v. ITX, 2019 WL 2110575

One motor carrier was lucky in the Southern District of Ohio when the court agreed to vacate the default judgment entered against for a cargo loss. The court held that the motor carrier had possible defenses to the Carmack action and the failure to respond to the suit would be excused. Allen Lund Company v. Captain Freight, LLC, 2019 WL 1003872

Finally a fight over excessive tow bills for a cargo loss. Unfortunately the Northern District of Illinois held that it would not exercise jurisdiction over a complaint for declaratory judgement on whether the fees were reasonable. The court held that under West Virginia law, the Public Service Commission is statutorily vested with the authority to remedy the dispute and dismissed the complaint. AGCS Marine Ins. Co. v. Bill Warner & Son Towing & Recovery, 2019 WL 2169180

The Court of Appeals of Ohio addressed the evidence needed to show that a prima facie claim for recovery was established by the claimant. The motor carrier disputed that the claimant had met its obligation. It is an interesting issue that comes up over and over again when the cargo is used machinery. The court held that the burden was not met for some of the machinery when there was only evidence that the machine was operational at a time well before pick up. Downtime Rebuild, LLC v. Trinity Logistics, Inc., 2019 WL 2128447

Greyhound was unable to sustain its burden of establishing that it properly limited its liability for a cargo loss. The Appellate Term in New York held that there was no evidence that there was a written agreement between the parties agreeing to the limitation. Jones v. Greyhound Express Port Authority. 2019 WL 2148470

A broker was unable to force the parties into arbitration to determine liability for a cargo loss. The Northern District in Illinois refused to allow the broker to rely on a broker carrier agreement which was not entered into until after the loss. The contract did not state that is applied to prior shipments and therefore was not applicable to the claim at issue. Austin Freight Systems, Inc. v. West Wind Logistics, Inc., 2019 WL 2088056

Does one party bear responsibility for failing to declare a value for a shipment which is later lost in transit? The Superior Court in Pennsylvania, after vacating a default entered against a shipper, concluded that the shipper was entitled to summary judgment in an action commenced by the consignee for the transit loss. The court held that the shipper’s arrangement of the transportation was only for the convenience of the consignee and therefore did not give rise to a claim. The shipper did not have a legal duty to obtain insurance on the consignee’s behalf. Even if it did, the court held that the failure to obtain insurance did not cause the harm. Cannon v. The Racing Engines, 2019 WL 1896511

Auto
Most defendants will try to get out of an action commenced in Philadelphia County in Pennsylvania. The Superior Court in Pennsylvania held that it was not an error to consider a revenue report generated by the motor carrier to show that it did not have substantial revenue from the state. The court held it was a trustworthy report. Brown v. Auborn, 2019 2027221

The Court of Appeals in Michigan determined that plaintiff failed to assert any fact which showed gross negligence on the part of a truck driver when the driver’s vehicle struck the plaintiff’s vehicle. The court held that establishing that the defendant violated the vehicle code only created a rebuttable presumption of negligence and that the CDL manual does not contain enforceable rules, the violation of which would be negligent per se. Nothing to support gross negligence was alleged. Kano v. Jacobson, 2019 WL 2235497

Where should the action be heard? The Supreme Court in Alabama refused to order the transfer of truck accident suit to a different venue, one where the accident occurred. In this case the court held that the carrier has failed to show that in the interest of justice and under the guise of forum non convenience the case should be transferred to another venue. Ex Parte Tyson Chicken, 2019 WL 2240147

A judgment in excess of 3 million was upheld against a shipper who improperly loaded a coal truck resulting in an overturn and serious injury to the plaintiff whose vehicle was buried under the coal. The court agreed that there was no evidence that the truck driver was at fault, therefore no reason to apportion the percentage of fault. Infinity Energy, Inc. v. Billy Henson, 2019 WL 2246607

An insurer’s payment for property damage which reduces the amount available for personal injury claims does not make the tortfeasor under insured under North Carolina law. The plaintiff was unable to recover UIM payments from his own insurer as the motor carrier was properly insured for 1 million in total coverage. Berkley Regional Insurance Co. v. Bernick-Odom, 2019 WL 2236064

The District Court in New Mexico agreed to stay a civil trial pending resolution of criminal proceedings against a truck driver arising from a hit and run accident. The court held that plaintiff could continue with certain discovery and that it would then revisit the potential for punitive damages against the driver. Yazzie v. Fezatte, 2019 WL 1865204

Can you force all parties involved in an accident to be part of a lawsuit and assert claims against each other? The Southern District in Ohio concluded that a trucking company could not compel a defendant, the driver who struck the truck, to file a counter-claim, nor could the defendant compel other injured parties to join the suit. Only the truck driver could be joined as a necessary party, since the truck driver had asserted claims against the defendant. Danny Herman Trucking v. Boulware, 2019 WL 1055822

When a broker was granted summary judgment on the pleadings in an action seeking damages from a truck accident the District Court in Nevada held that the broker was not entitled to attorney’s fees and costs based upon a previously filed and rejected offer of judgment. The court held that the broker failed to establish that the rejection of the offer was unreasonable when the damages were high and there were arguments which might have impacted the preemptive effect of FAAA. Miller v. CH Robinson, 2019 WL 1903389

A truck driver was not successful in recovering for future damages after his foot was run over by the shipper’s fork lift when an employee was attempting to shift a load. The Southern District in West Virginia also held that there was insufficient evidence to support a claim for punitive damages against the shipper. Billings v. Lowe’s Home Center, LLC 2019 WL 1869936

Does a motor carrier bear risk of direct liability for a rear end truck accident when it admits liability for the actions of the driver? The District Court in Arizona held that it could bear independent liability. In this case, however, the plaintiff could not support any factual allegations of negligent hiring, training or supervision against the motor carrier. The driver was held to be negligent per se for the rear end hit. However as there remained a disputed issue on causation plaintiff was not entitled to summary judgment. Contreras v. Brown, 2019 WL 1980837

According to the Middle District of Pennsylvania there were too many questions to permit summary judgment against a trucker in a suit seeking damages for a multi-party snowy accident. When two of the three parties claimed the truck driver was at fault the jury would get to decide the issue. With plaintiff’s agreement, however the court dismissed claims for punitive damages, negligent hiring and entrustment against the motor carrier. Barry v. Wheeler, 2019 WL 1922086

In another multi vehicle accident the Superior Court in Pennsylvania upheld the trial verdict that the accident was caused by the bus company. The court held that the trial court did not abuse its discretion in its exclusion of certain admissions by the truck driver or its denial of a mistrial, that the evidence was sufficient to support the jury’s punitive damages verdict, and that the bus defendants’ claim of error with respect to expert testimony was barred by waiver. Livingston v. Greyhound Lines, Inc. 2019 WL 1891130

The fight continues in an action pending in the Eastern District in Louisiana where the motor carrier claims that the plaintiffs’ intentionally caused the accident in order to seek recovery against the motor carrier. The court agreed to exclude some, but not all, of the defendant’s witnesses who would testify about the possible staging of the accident and would allow the plaintiffs to show that other complaints it filed resulted in settlements. The court also addressed the admissibility of video surveillance, past convictions of the plaintiffs and police reports. Thomas v. Chambers, 2019 WL 989236

A shipper seeking coverage under a motor carrier’s auto policy for injuries to a driver was denied relief. The Court of Appeals in Wisconsin agreed that the employment exclusion precluded any insurance coverage to shipper and that the insurer had no duty to defend or indemnify. Society Insurance v. Friedle, 2019 WL 1997284

What comes first in evaluating payment for a PIP claim, when there is a personal auto policy, a bob-tail policy and a trucker’s policy? The three insurers moved for summary disposition. The Court of Appeals in Michigan affirmed the trial court ruling that the personal automobile policy was not first and that the motor carrier’s policy, which did not specifically schedule the vehicle also did not apply, denying the argument of the bob-tail insurer that the vehicle should have been considered an after acquired vehicle under the motor carrier’s policy. The bob-tail insurer was left with the coverage. Youhanna v. Auto Club Insurance Association, 2019 WL 19824717

How extensive can a cell phone request be? The Western District of Oklahoma required production of cell phone records for the twenty-four (24) hours prior to the accident and two hours after the accident and that the records to be produced be limited to records containing incoming and outgoing call and text logs and logs of application use. The new discovery search is to see if there are issues with phone usage during rest time and times of operation to show a pattern of improper action. Kizer v. Starr Indemnity, 2019 WL 2017556

A motor carrier’s efforts to have allegations in a complaint dismissed failed in the Eastern District of North Carolina. While the motor carrier was successful in obtaining confirmation that punitive damages were sought against the driver and not the motor carrier it was unsuccessful in striking allegations concerning criminal proceedings and specific allegations on safety obligations. Williamson v. J.B. Hunt, 2019 WL 1995238

The Middle District of Pennsylvania only afforded partial relief to a trucking company, dismissing counts in a complaint which alleged causes of action for outrageous, wanton, reckless, or gross indifference to the safety of the plaintiff as the court determined that there was no distinction in causes of action for different forms of negligence. However the plaintiff was permitted to continue with causes of action for reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct, and punitive damages. White v. Tomasz, 2019 WL 2119982

The Northern District of Alabama partially denied a request for summary judgment by a truck driver following his accident with a bus in which a passenger was injured. The court held that there were genuine issues of material fact regarding negligence and causation, concluding that the passenger, who was working with the bus driver, could not be responsible for the actions of that driver. Moreover the fact that the defendant was successful in defending a claim by the bus company did not bar the plaintiff from litigating the issue. The court did dismiss the claims for wantonness, and negligent entrustment and supervision against the driver’s employer, a decision accepted by the plaintiff. Miles v. Celadon Group, 2019 WL 2206441

What claims can be brought in Pennsylvania following a truck accident. The Middle District of Pennsylvania held that claims of conduct which was outrageous, wanton, reckless, or done with gross indifference to the safety of the plaintiff would be dismissed because they were only negligence claims in other forms. The defendants’ motion to dismiss the causes of action alleging reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct, as well as the plaintiffs’ request for punitive damages, were denied. White v. Trybala, 2019 WL 2119982

The Superior Court in New Jersey held that Section 9.1 of the New Jersey Automobile Reparation Reform Act provides insurers, which have paid personal injury protection (PIP) benefits to their insured, with the statutory right to seek reimbursement against certain tortfeasors. If the tortfeasor is insured, the determination whether the insurer that paid the PIP benefits is entitled to recover those payments and the amount of the recovery is by agreement of the parties, and, if they are unable to agree, by arbitration. In this case the court held that the question of whether a party was actually a tortfeasor was also subject to arbitration. Liberty Mutual Ins. Co. v. Penske Truck Leasing, 2019 WL 2218939

The Southern District of Alabama granted summary judgment to a driver on a complaint which was filed late against the truck driver. The court held that lapse of nearly 12 months between the initial disclosure of the name of the driver and the motion for leave to amend established that plaintiff did not exercise reasonable diligence and move to amend within a reasonable time period as required under Alabama law. Figgers c. Carroll Fulmer Logistics Corp., 2019 WL 2163613

The District Court in Arizona held that an estate can recover future economic losses in a survival action where the decedent died immediately, and the claim for future loss of income was not too speculative. The court denied the motor carrier’s motion to dismiss those claims. The court also held that the plaintiffs were precluded from asserting any claim at trial premised on a theory of negligent hiring or negligent training or from seeking damages based upon the decedent’s pain and suffering or future wages asserted by his mother or wife as part of a wrongful death action as they were not the proper party to recover for those claims Manion v. Ameri-Can Freight Systems, Incorporated, 2019 WL 2184763

The Court of Appeals in Kentucky upheld summary judgment granted to a trucker’s insurer in a bad faith suit by an injured plaintiff. The court held that the insurer acted reasonably in not settling early in the case and even increasing reserves during discovery was not improper as new evidence was being learned which impacted the reserve. Corio v. National Specialty Insurance Co., 2019 WL 2157579

When there is a multiple vehicle accident a defendant, in this case the trucking company was permitted to bring a third party action against other parties who may have born some liability for the loss. The Eastern District of California held, however, that the trucker needed to only bring in parties who might be liable to the trucker, and not any just other possible claimants. Gonzalez v. JAG Trucking, 2019 WL 1994464

Thanks for joining us,

Jean & Chad

 

CAB Bits & Pieces April 2019

Good Day CAB Nation!

We at CAB hope your April has been fantastic!

As the news items below indicate, the spring has been busy with transportation conferences and speeches by DOT & FMCSA administrators like Secretary Chao and Administrator Martinez. 2019 is gearing up to be a loaded year with numerous regulatory creations, updates, and enhancements. Stay abreast of these updates by following our LinkedIn and Facebook pages.

Follow us at: CAB LinkedIn Page CAB Facebook Page

Have a great month!

CAB’s Tips & Tricks:

We have new and updated pre-recorded training webinars available on our website. Once logged in, these webinars are easily accessible via the Tools tab. Simply hover over the Tools tab and then click on Webinars.

The four webinars we chose to update first are listed below. If you need a refresher or you’re looking for training videos for new users, we would recommend starting with these three.

Introduction to CAB: Flow and Navigation-This 21 minute webinar is ideal for introducing new users to CAB and how it works or providing a solid refresher for current users. It provides an introduction to Carrier Central and the search functionality available. Additionally, it provides an introduction to the information available in the CAB report. To view the webinar, click here.

BASICs Calculator: Introduction-The BASICs Calculator is a premium tool has been around for a couple years, however we’ve added a number of enhancements including the Advanced Projections Tool. This 14 minute video introduces users to the functionality of the tool. The tool is especially useful for loss control, producers, account executives and the like. To view the webinar, click here.

CAB List Training-CAB List is a strong and useful tool that you should be using to track and monitor the motor carriers you’re working with. It allows you to verify carrier and group health all while providing notifications for CAB-BASICs Alerts, ISS-CAB Changes and Safety Ratings, to Inspections and Crashes. This 21 minute video will help you better understand your book of business throughout the policy year. To view the webinar, click here.

CAB Financials-This 6 minute webinar discusses what the CAB Financial Rating is, what is evaluated and how it is determined. In addition, it details the 6 levels of the CAB Financial Rating. To view the webinar, click here.

We encourage you to keep an eye on the Webinars page, as we will be rolling out updated videos on a regular basis.

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 has sent Proposed Hours-of-Service (HOS) Changes to White House. In early April Ray Martinez, Administrator of the FMCSA acknowledged that the agency is seeking to provide additional flexibility to drivers while maintaining current safety standards as they relate to the HOS. The trucking industry has been seeking information about the proposed changes since last fall when the DOT received more than 5,200 comments in response to a request for input on ways to make the HOS rules more flexible. Input requested included the following: Extending the maximum workday to 14 hours for 100-air-mile drivers; Extending the 14-hour limit to 16 hours when a driver encounters adverse driving conditions; Revising or even eliminating the 30-minute rest-break provision; Restoring flexibility to the split-sleeper-berth provision; and Petitions on rest breaks and the 14-hour rule. Additional information regarding this Notice of Proposed Rulemaking can be found here.

CVSA’s 2019 North American Standard Out-of-Service (OOS) Criteria is in effect as of April 1, 2019: This version supersedes all previous versions of the criteria. A total of 12 changes were made to the criteria. The changes included cargo securement, brake systems, driver’s seat (missing), exhaust systems, frames, steering mechanisms and others. The OOS criteria are updated annually. For additional information on the CSVA and changes to the OOS criteria, click here.

Cargo Thieves are Changing it Up Again: Cargo thieves are altering their tactics early in 2019. CargoNet reports that 1) Loaded trailer burglaries are growing and becoming the main method of cargo theft in some parts of the country. 2) Fictitious pickup active is resurging after two years of dormancy. Food and beverage were the most frequency stolen during the quarter, despite year-over-year decrease. The top 3 theft states were California, Florida and Texas.

Although Market has Cooled, Capacity is Still Being Added. Class 8 truck orders have plummeted, but 3 year old trucks are at their highest level since 2015. On average, a 3 year old truck is just under $70,000. The reality that prices for these trucks have stayed high after the market has topped indicates many smaller motor carriers and owner-operators are still expanding their fleets or entering the market. Ultimately, growth and contraction cycles take longer to shift than general market conditions. Ultimately, capacity is still being added long after the market has shifted.

NTSB’s 3^rd Round Table on Distracted Driving: The National Transportation Safety Board’s (NTSB) roundtable took place on April 11^th and included perspectives from the trucking industry. During the roundtable it was noted that successful accountability consists of 3 things: the organization, the individual and the peers. Over 20 speakers took part and it included comments from experts, industry executives and drivers. It was noted that a recent Texas A&M Study showed that 1 in 12 Texas drivers is likely on their phone. Distracted driving is on the NTSB’s Most Wanted List of Transportation Safety Improvements. More information regarding the Roundtable can be found here:

FMCSA Plans to make Crash Preventability Project Permanent: In remarks at the Mid America Truck Show in early April, DOT Secretary Elaine Chao noted that the DOT is seeking to make the Crash Preventability Program permanent after the demonstration program ends on July 30^th. This is due to positive feedback from stakeholders. The program allowed motor carriers to file DataQs for review of 8 specific types of crashes. If successful, those crashes would be removed from that motor carrier’s Crash BASIC. Additional information on the Crash Preventability Program can be found here.

FMCSA Declares South Dakota Truck Driver to be and Imminent Hazard to Public Safety: Between January 2017 and March 2019, Mr. Hall tested positive for drugs during a random test, failed to comply with the return-to-duty program by failing additional tests, caught on a traffic stop with additional drugs and was still operating a truck as late as March of 2019. Despite motor carrier enforcement’s best efforts, situations like this still occur. With the roll-out of the CDL Drug & Alcohol Clearinghouse in early 2020, hopefully scenarios like this can be prevented in the future. For additional information on the Imminent Hazard declaration, click here. For information related to the Drug & Alcohol Clearinghouse, click here.

47,000 Bridges Deemed Deficient by the Department of Transportation: According to the Federal Highway Administration’s definition, a structurally deficient bridge is one with any component (deck, structure or culverts) is in poor condition. According to one organization, it could take 80 years to make repairs to these bridges at the current pace. Additionally, it could cost $171 billion to fix these bridges. For more information on National Bridge Inspections, click here.

DOT Updates Drug Testing Regulations: The DOT made changes to its drug testing rule for safety-sensitive employees to ensure consistency with amendments made to 49 CFR Part 40, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” These revisions were originally implemented in early 2018. The revisions added requirements to test for oxycodone, oxymorphone, hydrocodone, and hydromorphone to DOT-regulated drug testing programs. Previously covered drugs morphine, 6-acetylmorphine, and codeine are also considered opioids. More information on the FMCSA’s Drug & Alcohol rules can be found here.

Number of Job Openings Declined to 7.1 Million in February 2019: This is a decline of 538,000 from the previous month. The job openings rate (the number of job openings as a percentage of total employment plus the total number of job openings) was 4.5 percent in February, decreasing from 4.8 percent in January 2019. The number of job openings fell for total private (−523,000) and was little changed for government. Job openings decreased in a number of industries. The largest decreases occurred in trade, transportation, and utilities (−160,000). For more detailed information on this and other BLS statistics, click here.

Interesting Tidbits:

Are you interested in training your staff on issues related to driving a commercial motor vehicle? Occasionally we get asked about ways our clients can provide education to their staff when it comes to helping them understand what it’s like to drive a truck, or perhaps what a roadside inspection looks like. When I get these questions, I encourage them to reach out to the National Association of Publicly Funded Truck Driving Schools or another local truck driving school. Often times these schools can customize an onsite training course specific to your needs.

Questions that can be answered include, but are not limited to:

-What’s the view from a truck?

-Where are the blind spots?

-What is “pulling the 5^th wheel pin” or “sliding the tandems”?

– How do you secure a load?

-What kind of training does a new CDL driver receive?

-What is a level 1 inspection?

Some schools will also offer students the opportunity to drive a truck on a closed course and/or use a skid pad. These educational opportunities are invaluable and will go a long way in helping your staff better understand the trucking industry.

CASES

Auto
The court agreed to dismiss claims for recklessness, punitive damages and negligent/reckless entrustment which were asserted against a tour company by a truck driver who was struck by the bus. The Western District of Pennsylvania held that the plaintiff failed to allege sufficient facts to allow those causes of action to continue. Whetstone v. Malone Bussing Services, 2019 WL 1459022.

The Court of Appeals in California upheld a defense verdict when the plaintiff drove his jeep into the back of a truck improperly parked in a gore point near a highway exit. The court held that the trial court was not required to permit a jury instruction that the truck driver was negligent per se in parking at the gore. Taulbee v. E.J. Distribution Corp., 2019 WL 1771978

The federal government was not granted summary judgment in an action commenced by a driver for injuries suffered when delivering heavy equipment to a designated location. The Eastern District of New York held that there were sufficient questions of fact as to whether the location was properly lit so as to allow the plaintiff an ability to see where he was going. The shipper, however, was granted judgment as there was no evidence that it was aware of the defect in lighting and did not undertake to control the method and manner of delivery. Iannucci v. Lewis Tree Serv., 2019 U.S. Dist. LEXIS 57531

Expert issues were considered in the Eastern District of Louisiana in an action for personal injuries following a truck accident. The court found that the testimony of defendant’s accident reconstructionist, Dr. Welch, except for his specific medical causation opinions, were reliable and admissible at trial; However plaintiff’s reconstructionist did not fare as well as his statements did not require any specialized knowledge. Finally the court concluded that the trucking company was entitled to summary judgment on plaintiffs’ direct negligence claims because it had stipulated that it was vicariously liable for the actions of the driver. Thomas v. Chambers, 2019 U.S. Dist. LEXIS 65900

Who is responsible for an improperly packed trailer when the cargo hits the driver and injures him? The Court of Appeals in Indiana granted summary judgment to the cargo owner, but not to the company which handled the distribution of the product. As they pre-loaded the trailer there was a reasonable argument that a duty was owed to the driver. Wilkes v. Celadon Grp., Inc. 2019 Ind. App. LEXIS 161

The same issue may be decided in the Western District in North Carolina in an action where the cargo fell on the driver. The court denied the defendant’s motion to transfer venue to Georgia, its home venue. The court held that the defendant did not sustain its burden to show that transfer was necessary under a venue analysis. Sellers v. Whole Foods Mkt. Group. Inc., 2019 U.S. Dist LEXIS 56145

In California operating a vehicle without a commercial driver’s license is not evidence of negligence unless it is found to have proximately caused the accident. The court held that it was enough that witnesses agreed the rental contract required the operator of the water truck to have specialized skill, training, and testing. The jury was not permitted to see the contract, which specifically required a certain type of license. The lessor was found liable for 10% of the plaintiff’s injuries for failure to warn about defects in the trailers. The 4th Appellate Court reversed the decision, finding that the jury apparently rendered a compromise verdict and the special verdict form was defective as it did not require a determination as to the percentage of fault for all parties. Golston v. Hertz Equipment Rental Corp. 2019 Cal. App. Unpub LEXIS 2448

The District Court in Connecticut allowed a defendant to amend his counter-claim for his own injuries arising from an accident between two tractor trailers. The court noted that the defendant’s direct complaint was dismissed due to a procedural error, not on the merits, and allowing the defendant to pursue his claim via the counterclaim was in the interest of justice. Boahen v. Trifiletti, 2019 U.D. Dist LEXIS 64764

Where a case involves multiple defendants, a court should not enter judgment against a defaulting party who may be jointly liable until the court adjudicates the matter with respect to all defendants. The Northern District of Alabama denied the plaintiff’s request for default against one of the many parties who were alleged to own the tractor and/or the trailer. Peace v. Rock, 2019 U.S. Dist. LEXIS 65310

A transportation contract between a shipper and a motor carrier did not obligate the motor carrier to defend the shipper for its own negligence. The Eastern District of Virginia concluded that in the absence of such claims the shipper was not an additional insured under the carrier’s general liability or business auto policies. Waste Mgmt. v. Great Divide Ins. Co., 2019 U.S. Dist. LEXIS 59477

Plaintiff was not given an opportunity to identify additional experts when the opinion of the new expert did not constitute rebuttal evidence to the defendant’s expert’s testimony. The Eastern District of Kentucky concluded that the expert’s conclusions that the driver failed to yield the right of way and failed to follow the Ohio Commercial Drivers’ License Manual and the Federal Motor Carrier Accident Counter Measures Manual ordinarily would be expected to be presented during the plaintiff’s case-in-chief. The expert’s conclusions regarding failure to yield and failure to keep a proper lookout did not constitute real rebuttal evidence. Hampton v. Bob Evans Transp. Co., LLC, 2019 U.S. Dist. LEXIS 56662

Sometimes an accident is simply an accident. The Northern District of Alabama granted summary judgment to a motor carrier and driver on claims of negligent and wanton maintenance, service, and repair; negligent and wanton hiring, and training; and wanton supervision, retention, and entrustment. The court did not grant judgment on general claims of wantonness as there was a question as to whether the driver’s actions were inherently reckless, as he was speeding and on his cell phone at the time of the accident. Green v. Markovitch, 2019 U.S. Dist. LEXIS 66740

The 5th Circuit Court of Appeals issued a new decision clarifying it decision in a case reported on in February, 2019. The court continued to affirm that the motor carrier waived a defense regarding the issue of statutory employees, properly defined a motor carrier, agreed that the trooper could who investigated the accident could testify as an expect and allowed for the loss of future consortium. The only saving grace for the defendant was a remand on the issue of the trial court’s application of past loss of consortium damages and the application of a settlement credit. Puga v. RCX Solutions, Inc., 2019 U.S. App. LEXIS 11229

Another trucker was unsuccessful in recovering from a trucking company when he claimed that the driver hit his tractor in a rest area. The Eastern District of Kentucky granted summary judgment to the defendant concluding that the plaintiff failed to assert sufficient facts to support the identity of the carrier that struck him. Emiabata v. PAM Transport, 2019 WL 1388861

An insurer was unsuccessful in applying the employee exclusion under a policy based on its argument that the statutory definition of employee should govern over the policy terms. The Northern District of Illinois also disagreed with the position that the driver was a leased worker. The duty to indemnify was left open pending the resolution of the underlying case. National Continental Ins. Co. v. Vukovic, 2019 WL 1331790.

A broker’s motion to dismiss claims against it for a personal injuries suffered by the plaintiff in a truck accident was denied. The broker sought dismissal on the grounds that the claims were preempted by FAAA. The Southern District of West Virginia held otherwise. The court concluded even if that state’s negligent hiring claims had a sufficient impact on the price, route, or service of a broker so as to satisfy FAAA, it would not be preempted because it would fall within the general “safety regulatory exception” of the statute. Gilley v. C.H. Robinson, 2019 WL 1410902

Sanctions were awarded against a trucking company that failed to obey a discovery order. The defendant was ordered to pay the costs for the motion and the expenses related to trying to seek a copy of the defendant’s insurance policy. Mosley v. Spartan Freight Systems, 2019 WL 1375096

Who was entitled to recovery for the wrongful death of a child who was struck by a tractor trailer was the topic of motions in the Middle District of Louisiana. The court held that while permanent custody had been granted to the aunt and uncle they were not permitted beneficiaries under the statute. Questions of fact remained as to whether the father was deemed to have abandoned his son and therefore not be entitled to recover for his death. Dixon v. Garner, 2019 WL 1370855

The 5th Circuit denied plaintiff’s efforts to seek a new trial. She contended that the pain and suffering award was impermissibly low under Louisiana law, newly discovered evidence from a previously unidentified officer on the scene required a new trial, and the jury had reached a “compromise verdict/” The court affirmed the lower court ruling concluding that the truck accident caused little pain and suffering, that the inconsistency in the original verdict was cured after the jury further deliberated, and that plaintiff had not shown that she exercised due diligence in obtaining the newly discovered evidence prior to trial. Wright v. National Interstate Insurance Co. 2019 WL 1422815.

Technicalities will often prevent summary judgment. The Appellate Division in New York denied summary judgment to a trucking company which operated as a distribution facility. A truck driver brought personal injury action against the trucking company alleging that company overloaded driver’s trailer causing the trailer to buckle and break apart, which resulted in truck crashing into a concrete divider. The court held that the submission of a distribution agreement as evidence was unacceptable as it did not properly establish the relationships between the parties and was submitted by general counsel of a non-party affiliate. Clarke v. American Truck & Trailer, Inc. 2019 NY Slip Op 02448

The Appellate Division in New York reversed the denial of summary judgment to one plaintiff. In opposition to the motion the truck driver’s summary judgment affidavit was insufficient to raise triable issue of fact so as to preclude grant of summary judgment to motorist on issue of liability. The submission of an affidavit which contained version of the facts which seemed tailored to avoid consequences of his prior admission to police officer, that he backed into motorist’s vehicle, was premised on speculation, and was inconsistent with the photographs of the damage to motorist’s car. Thompson v. Coca-Cola Bottling Co., 2019 WL 1338267

As long as the plaintiff tried to amend the complaint to add a party within the statute of limitations, the Southern District in Illinois held that it was inequitable to not toll the statute of limitations when the plaintiff was waiting to hear from the court. The defendant’s motion to dismiss was denied. Stine v. Homan, 2019 WL 1294996. In a related decision the court refused to dismiss redundant claims against the truck driver, concluding that the various iterations in the claims had some distinguishing factor which allowed it to move forward. 2019 WL 1385226

Even when the plaintiff is willing to limit damages to less than $74,000, the initial complaint indicated damages might exceed the jurisdictional limit so removal was correct. Moreover, the Eastern District of Missouri held that while the forum defendant rule will generally limit the ability to remove a case, that rule will apply only when the forum defendant was served before the removal. O’Brien v. US1 Logistics, LLC, 2019 WL 1491628

A commercial truck driver who resided in Illinois and was injured in a collision in Ohio with a tractor trailer owned by a Missouri food manufacturer brought a negligence action against the driver and the manufacturer in Illinois. The Appellate Court in Illinois held that the Missouri food manufacturer was a resident of Cook County within the meaning of the corporation residence statute for purposes of venue because it established an “other office” in Cook County when it hired employee who was specifically hired to work out of his Cook County residence to service several of food manufacturer’s Illinois customers, and provided the employee with an email address and corporate extension with which to do so. Tabirta v. Cummings. 2019 Il. App (1st) 17289-B

The availability of punitive damages in the context of automobile accidents is extremely limited says the Western District of Kentucky. The mere violation of some traffic law, and the sale or loss of the tractor trailer after the accident were insufficient to demonstrate gross negligence sufficient to support an award of punitive damages. The punitive damages claim against the trucking company was dismissed. Faith v. Warsame, 2019 WL 1359266

A jury verdict against a bus company and its driver was upheld in the Court of Appeals in Ohio. The jury awarded $23,018,790 in compensatory damages and $4,000,150 in punitive damages, $1,276,938.96 in prejudgment interest and $300,000 in attorney fees. The court denied all arguments raised by the bus company. Sobrey v. Greyhound Lines, 2019 WL 1569626

The Court of Appeals in Louisiana reversed summary judgment in favor of a trucking company and its insurer on the issue of signage and voluntary assumption of a duty to warn when questions existed as to warnings posted on moving log trucks. However the court did affirm the granting of summary judgment in favor of one driver, the trucking company and its insurer on the issue of vicarious liability under Louisiana law and the FMCSR. The court also agreed that the insurer provided no coverage for a trucker whose policy had been cancelled for non-pay. Saldana v. LaRue Trucking, 2019 WL 1549895

Is the USPS responsible for injuries arising from a truck accident when a motor carrier was hauling mail for the USPS? The District Court in New Jersey refused to dismiss a complaint against the USPS on jurisdictional grounds, concluding that there were questions of fact on whether the motor carrier and its driver was an independent contractor or an employee of USPS. The court held that it was too early in the action to determine definitively that USPS had no hand in the operations of the motor carrier or its driver. Blumberg v. Rolle, 2019 WL 1529960

Plaintiff’s efforts to argue that a passenger in the tractor trailer was liable for failing to take action to prevent an accident failed in the District Court in Oklahoma. Cox v. Swift Transportation Co. of Az, 2019 WL 1546941

One motor carrier’s argument that it was entitled to judgment on the issue of whether it owned a vehicle was rejected in the Middle District of Pennsylvania. The court held that since the operating company did not specifically admit ownership the defendant must stay in the case. The court also rejected a Graves Amendment argument, concluding that the plaintiff could allege a cause of action as long as it was not based solely on the ownership issue. Petit v. Penske Truck Leasing, 2019 WL 1571067

The Superior Court of New Jersey remanded a case for personal injuries arising from a truck accident back for a new trial. While the plaintiff was successful against the trucker she was unhappy with the amount. The court held that the trial court rulings on the admissibility of certain medical records prevented the jury from fully assessing the injuries. Orbea v. Butler, 2019 WL 1452702

Cargo
Interesting issue considered by the Northern District in California. As the court noted it sounded like a law school exercise. Two accidents, cargo damaged in the first and then again in the second when another vehicle hit the cargo on the road. The motor carrier and all of the parties involved in the transportation settled with the cargo owner. The trucking company which hit the cargo in the second accident opposed a good faith settlement which would have precluded a contribution claim. The court granted the plaintiff’s motion, allowing the settlement to proceed and remanded the case to state court as the Carmack action was concluded by the settlement. The Board of Trustees v. Trump Card, Inc. 2019 WL 1436349.

The Middle District in Pennsylvania vacated a default entered against a trucking company for a cargo loss. The motor carrier was found to have a meritorious defense when it alleged that poor weather conditions amounted to an act of God. That fact that the motor carrier failed to notify the appropriate parties that it was moving its corporate location was negligent and would require payment of sanctions, but was not enough to allow for the default to stand. Pets Global, Inc. v. M2 Logistics, 2019 WL 1453082

A broker was unsuccessful in asserting a Carmack claim against a trucker when the cargo was damaged by the consignee when offloading it from the truck. The Court of Common Pleas in Ohio also held that while the broker was authorized to withhold freight charges under the contract once the claim was dismissed the invoice was owed to the carrier. Total Quality Logistics, LLC v. Balance Transportation, 2019 WL 1531208

Technicalities again. The Eastern District of Kentucky would not dismiss an amended complaint against a motor carrier when the plaintiff amended the complaint to assert causes of action against another party and forgot to include the Carmack claim on the second go round. The court held that the motor carrier could not have thought it was getting out of the case that easily. Re-borne v. Panther II Transportation, 2019 WL 1371838

A truck broker was found to be liable as a motor carrier under the Carmack Amendment in a suit seeking damages for a cargo loss. The 3rd Circuit Court of Appeals upheld the trial court’s decision that the broker acted as a carrier while the broker argued that it did not give its consent to be listed as a carrier on the bill of lading, it never took physical possession of the cargo, it entered into an independent contractor relationship with NRT, and the shipper was at fault for failing to investigate the broker’s services. Tryg Insurance v. C.H. Robinson, 201 WL 1766995

The Third Circuit Court of Appeals held that a transportation broker did not lack standing under the Carmack Amendment to recover its losses from carrier for shipment of cheese that was destroyed due to safety concerns about exposure to warm temperatures in transit, even though the Carmack Amendment did not grant brokers a right to sue, since broker could still avail itself of provision granting right of action to a person entitled to recover under the receipt or bill of lading, and carrier failed to demonstrate that broker was not a person entitled to recover its losses under that provision, and further, broker’s claim could reasonably be considered under theory of equitable subrogation or as an action for apportionment under apportionment provision of the Carmack Amendment. Mecca & Sons Trucking Corp. v. White Arrow, LLC/, 2019 WL 1338518

Worker’s Compensation
A worker’s compensation insurer was entitled to assert a subrogation lien against a truck driver. The Western District in Pennsylvania, applying Tennessee law, held that Tennessee workers’ compensation law provides that an injured employee who received workers’ compensation benefits may pursue an action against the third-party tortfeasor that caused his injuries, but it also allows the employer to enforce a subrogation lien against the employee’s third-party recovery. Ozark Motor Lines. v. Boren, 2019 WL 1409697
A motor carrier who sought to avoid being an “up the ladder” employer of a trucker operating a leased with driver vehicle was denied that determination. The Court of Appeals in Kentucky affirmed the lower court determination that the facts did not support a conclusion on the issue, remanding the case for further findings of fact. Tryon Trucking v. Medlin, 2019 WL 1422910

An insurer’s declaratory judgment action was stayed in the District Court in New Jersey due to a separate suit in a state court. The insurer sought to avoid a claim made against a trucker under FELA. As the motor carrier was still litigating the issue of its obligations under FELA it was premature to determine the coverage. Continental Indemnity Co. v. H&M, 2019 WL 1379884

The Court of Appeals in Kentucky was busy with worker’s compensation issues this month. It considered whether public policy demands that the notice of coverage filed with the DWC by a PEO operates to establish insurance coverage on all employees of the trucking company it is working with, not just the employees assigned under the PEO service agreement. The court determined that it did not. The applicable statute provided a framework under which a PEO may contract with an employer to provide leased and insured employees without being bound to provide workers’ compensation coverage for the employer’s non-leased employees. Uninsured Employers’ Fund v. TLC Companies, 2019 WL 1423099

A default judgement entered against a trucking company in a breach of contract action for failure to pay premiums under a workers’ compensation insurance policy was upheld. The Supreme Court of Appeals in West Virginia held that the trial court acted within its discretion in denying, as untimely, a motion to set aside a default judgment on the basis of mistake, fraud, misrepresentation, and excusable neglect when the stated grounds for relief were all subject to a one-year time limitation that had already expired. Amoruso v. Commerce and Industry Insurance Company, 2019 WL 1430769

A truck driver injured outside of Iowa was entitled to workers’ compensation benefits under Iowa Code section 85.71(1)(b) (2014). The Court of Appeals of Iowa concluded that the “contract of hire” between employer and employee was “made in this state.” Because the parties assented to all terms of the contract while he was in Iowa, his claim met the requirement of territorial jurisdiction under the statute. Niday v. Roehld Transport, Inc., 2019 WL 1486603

Thanks for joining us,

Jean & Chad