CAB Bits & Pieces October 2018

Good day CAB Nation!

Time flies! How can we only be a few weeks from Thanksgiving? We hope this month’s Bits and Pieces finds everyone in good health and staying warm. For those of you that attended the Motor Carrier Insurance Education Foundation (MCIEF) in Orlando earlier in October, I thank you for the warm reception from all I met while there.

The future is bright and CAB is growing again! This month we welcome Dominique Dube. Dominique is our new Director of Business Development. As an experienced Marine Underwriter, with a degree in Economics, she brings new expertise to our growing group. We look forward to adapting that expertise to our CAB systems, tools and resources. Her excitement and energy is contagious. She looks forward to being a resource and guide for our systems and forging new relationships. Please, join me in welcoming her to CAB.

CAB’s Tips & Tricks:

A new feature we’re adding to the Bits & Pieces is the aforementioned Tips & Tricks. CAB is regularly updating and adding new features to the system and we will be sharing some of those here.

Did you know under CSA BASICs tab, you’re now able to sort the Weight, Category, Total and OOS columns within each of the BASICs Categories? Just click on the word at the top of the column and an arrow will appear and sort the data either ascending or descending.

This is just one of the many improvements our talented programmers are adding on a regular basis. I look forward to sharing these enhancements during future Bits & Pieces. As always, our ultimate goal is to provide usable and actionable data to help CAB users Make Better Decisions.

This month we report:

Drug Testing. A major legislation designed to tackle the opioid crises was signed into law this month. The law directs the Abuse and Mental Health Services Administration to report on proposed guidelines for hair testing and the Secretary of Health and Human Services to report to congressional transportation committees on the status of hair testing guidelines for truckers. This has been a topic of interest for the last few years as many drivers oppose the hair testing, which is more likely to show some degree of drug use. The law also addresses reporting requirements on the development of the Drug and Alcohol Clearinghouse which we have been waiting a long time for.

FMCSA Studying Drivers’ Schedules vs. Performance. The point of the study, “Crash Risk by Commercial Motor Vehicle Driver Schedules,” is to collect and study HOS and crash data to analyze how HOS rules are being used and the effect of schedules on crash risk. The FMCSA is collecting the data to answer the following questions.

• Relative crash risk by hour of driving
• Relative crash risk by hour of driver per week
• Relative crash risk of driving breaks
• Relative crash risk as a function of recovery periods
• How each of the HOS provisions is being used

The comment period is open through December 23, 2018. More information can be obtained via the FMCSA Website here.

Demand for Flatbeds drop off. As we have always reported, you can follow the economy by following the trucks. Industry analysts wonder if the drop in the demand for flatbeds is a sign of an industrial slowdown. The flatbed tender rejection index (who knew there was such a thing) shows a decline of 48%. The index measures the apparent supply and demand in the flatbed market

Automated Vehicles 3.0 The DOT has released its report on Automated Vehicles 3.0 – Preparing For The Future of Transportation. The DOT focus on automated vehicles has moved to the transportation industry. The report notes:

What does this mean? At this point not a whole lot, however it is important to note, regulatory bodies are planning for the future. In general, things in Automate Vehicles 3.0 are suggestions and vague guidelines, most of them, voluntary. You can review the report here at https://www.transportation.gov/sites/dot.gov/files/docs/policy-initiatives/automated-vehicles/320711/preparing-future-transportation-automated-vehicle-30.pdf. The report has been opened for comments. More information about filing comments can be found here.

The American Transportation Research Institute released its 2018-Critial Issues in the Trucking industry Study. This annual study polls the trucking industry and then compiles the responses into the top 10 critical issues list. Driver Shortage, Driver Retention and Hours of Service were ranked as the top 3 respectively for Motor Carriers. Driver shortage has been in the top 3, four of the last five years. Hours of Service has been in the top 3 the last eight years in a row. It interesting to note, this is the first time Driver Retention has broken into the top 3 in at least the last 10 years. As the table below indicates, Drivers and Motor Carriers have different opinions when it comes to the Top 10 issues

You can obtain a copy of the report on the ATRI site at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812633

Additionally, ATRI also released An Analysis of the Operational Costs of Trucking: 2018 Update and Cost of Congestion to the Trucking Industry: 2018 Update. Traffic added nearly $74.5 billion in operational costs for truckers. The study determined that delays on the highways cost motor carriers nearly 1.2 billion hours in lost productivity, the equivalent of 425,533 commercial truck drivers sitting idle for a working year. As expected metropolitan areas are responsible for a large portion of the delays. You can obtain a copy of these reports on the ATRI site at http://atri-online.org/2018/10/18/cost-of-congestion-to-the-trucking-industry-2018-update/ and http://atri-online.org/2018/10/02/an-analysis-of-the-operational-costs-of-trucking-2018-update/

2017 Fatality Analysis Reporting System (FARS) traffic report was released by the NHTSA. The numbers show a decline in fatalities. Crash fatalities decreased in nearly every segment of the population measured except for sport utility vehicles (up 3 percent), and large trucks (up 9 percent). Large truck crashes were responsible for 4,761 deaths in 2017, compared to 4,369 in 2016. Fatalities in other vehicles involved in large-truck crashes experienced an 8.8 percent increase from 2016 (280 occupants). Large-truck occupant fatalities in multiple-vehicle crashes increased by 76 to 343 fatalities, a 28.5 percent increase from 2016. Large-truck occupant fatalities in single-vehicle crashes increased by 40 to 498 fatalities, an 8.7 percent increase from 2016. You can view the full report here at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812633

Cases

Cargo

The Central District of California retained jurisdiction over an action which was removed under the Carmack Amendment despite the fact that all defendants had not agreed to removal. Where one of the defendants had not been served the court determined that it was not required to consent. The court also held that as the plaintiff alleged that the defendants had taken possession of the freight the only claim to present was one under the Carmack Amendment. Pro-Com Products v. Kings Express LA., Inc. 2018 WL 5291928

A household goods carrier was enjoined from selling a homeowner’s goods for non-payment of freight charges when it appeared that the motor carrier had not completed delivery within the time frame required under the bill of lading. The court held that the homeowner was likely to succeed on its Carmack claim and would suffer irreparable damage if the goods were sold. Mizell v. Professional Transportation Solutions, 2018 WL 4961495

The Sixth Circuit Court of Appeals upheld a $5.9 million dollar verdict against a trucking company, concluding that the trucking company failed to give a reasonable opportunity for the shipper to declare a value for the cargo and that the terms of the bill of lading were ambiguous. The court did refuse to evaluate the damages based upon market value, giving the broker, as assignee of the shipper, only the replacement cost. Excel v. Southern Refrigerated Transport, 2018 WL 4579690

Damages must exceed 10,000 in order for the federal court to accept jurisdiction over a cargo loss. The District Court in Oregon remanded a case back to state court when the damages were less than $10,000. The court also held that FAAAA did not completely preempt the negligence claim. Raaf v. UPS Ground, 2018 WL 4609935

Auto

Punitive damages were not recoverable against a motor carrier and its driver in the Eastern District of Kentucky. The court granted the motion to dismiss concluding that running of a red light alone fails to entitle the plaintiffs to punitive damages and that because there was no cause of action for gross negligence, any punitive damages claim based on respondeat superior against the motor carrier was subject to dismissal. Miller v. Indemnity Insurance Co. of North America, 2018 WL 5023328. In a subsequent motion for reconsideration the Court again held that there was no basis for a punitive damages claim when the driver was also on the phone at the time of the accident, which was a violation of company policy. 2018 WL 5270179

The Appellate Division in New York dismissed a complaint against a motor carrier when the evidence showed that the motor carrier had properly stopped its vehicle before the plaintiff swerved to avoid the vehicle, striking another vehicle. The parties agreed that the truck stopped due to a traffic condition in front of him caused by a jackknifed tractor-trailer, and there was no evidence that his operation of his vehicle in response to that traffic condition was in any manner negligent. Bailey v. N.C. Vitrano, 2018 WL 5274332

One plaintiff was unable to sustain her claim of federal court jurisdiction arising from a truck accident. Plaintiff’s allegations as to the domicile of the defendants, which were based upon unsupported information and belief, together with the lack of facts establishing damages in excess of $75,000 resulted in dismissal of the suit. Sanchez v. Aburto, 2018 U.S. Dist. LEXIS 175804

Bus accidents can result is numerous and serious injuries. The Supreme Court in New York concluded that the company which was involved in the sale of the bus tickets to the casino, and who provided an “on bus tour guide”, bore no liability for a horrific bus accident. The Court also granted summary judgment to a trucking company that the bus driver claimed cut him off before the accident, concluding that there was insufficient evidence to support the claim. Ren Yao v. World Travel of Greater NY, 2018 N.Y. Misc. LEXIS 4369

Even when liability for a truck accident is admitted the District Court in North Dakota held that the plaintiff, this time the truck driver, was still allowed to testify concerning the facts of the loss, the fact that the defendant was intoxicated and that he was required to be extricated from the vehicle because of the release of gas and the potential for an explosion. Bowen v. Hood, 2018 WL 4934067

What came first – the chicken or the egg? The Western District of Louisiana granted summary judgment to a motor carrier and its liability insurer arising from a multi-vehicle accident which occurred in Louisiana. The court granted summary judgment on the basis that the evidence only showed that that the impact with the trailer was after the initial hit with other vehicles. Crow v. Toney 2018 WL 4572669

A motor carrier’s efforts to have a punitive damages claim dismissed failed in the Middle District of Pennsylvania. The court held that when there was a rear end hit by the tractor-trailer the plaintiff sufficiently alleged that the driver, at the time of the accident, was driving too fast for conditions, following too closely, and/or simply not paying the degree of attention the situation required all of which could support a claim for punitive damages. Hyder v Womack, 2018 WL 4604535

The Western District in Tennessee held that a motor carrier was not obligated to maintain electronic logging information when the plaintiff failed to serve a notice requiring the motor carrier to keep the records. Lee v. Horton, 2018 WL 4600303

A motor carrier who struck the plaintiff in the rear was successful in getting its expert to be allowed to testify that the impact suffered by the plaintiff was minor. The expert witness Jeremy Hoffpauir retrieved data from the BMW’s Crash Data Retrieval (CDR) system (the vehicle’s so-called “black box”). Byrd v. Allstate Property & Casualty Ins. Co., 2018 WL 469381

The Southern District of Ohio refused to allow plaintiff’s expert to opine on what the plaintiff decedent was thinking at the time of the crash but did conclude that the expert was entitled to opine of the lack of reflectivity and conspicuity of the trailer at the time of the accident. Scott v Everlast, 2018 WL 4784554

An injured party had no standing to bring a declaratory judgment action seeking coverage for someone under a trucker’s policy. The court held that when the plaintiff had not been joined to an already existing declaratory judgment action, there is no judgment against any of the insured parties, and she did not claim to be an insured party under the insurance policy at issue there was no controversy between her and the insurer to warrant a right to seek a declaration of coverage. Demers v Nova Casualty, 2018 WL 4922351

A trucker’s efforts to have various causes of action in an amended complaint dismissed, including claims for punitive damages, negligent hiring and retention failed. The Eastern District in Pennsylvania held that the claims were not time barred, even when brought after the statute of limitations ran, as they related back to initial allegations in the complaint. Sufficient facts were alleged by the plaintiff to support the claims for punitive damages and negligence at the early stage of the litigation. McMahon v. Arsenberger, 2018 WL 4855458

Over in the Northern District of Ohio the court rejected a plaintiff’s efforts to assert claims for punitive damages, negligence per se and negligent hiring. Where there were no facts alleged which supported a reasonable basis for the claims the court would not allow them to stand. Of note is the fact that an allegation that the drivers were permitted to use cell phones while driving could not be used to support a cause of action when use of a cell phone had no connection to the loss. Bonner v. Reliable Transportation Specialists, 2018 WL 4586924

The Appellate Division in New York held that a truck driver did not violate the road rule prohibiting driving on shoulders and slopes in an action seeking recovery for injuries caused to motorist after his truck collided with motorist’s left-turning vehicle as he drove through the intersection allegedly while driving on shoulders where the accident did not occur on a controlled-access highway. The lower court decision granting a liability judgment to the plaintiff was reversed. Mack v. Harley 2018 WL 4763086

Even though the defendant motor carrier and its insurer believed that the plaintiff caused a truck accident, a counter-claim for fraud was dismissed by the court in Louisiana. The court held that the defendants failed to allege any facts supporting such a claim. Plaintiff was not entitled to sanctions as plaintiff failed to comply with the procedural requirements before filing the motion. Thomas v Chambers, 2018 WL 5279122

Fraudulent joinder of a party, as a way to defeat diversity, is often difficult to establish. The District Court in Maryland rejected a shipper’s argument that it was fraudulently joined to a personal injury claim involving a trucker hired by the shipper’s broker. The court determined that adding the shipper as a party was not fraudulent. The court further held that this was a novel question – whether the shipper bears a responsibility to vet the carrier and so allowed the action to continue – defeating diversity and remanding the case back to state court. Stratton v. Nationwide Solutions, 2018 WL 4679859

A declaratory judgement that a policy did not provide coverage when the tractor was attached to a non-owned trailer was granted by default in the Northern District of Alabama. The exclusion that the insurance did not apply while the tractor was used for the towing or transporting of any trailer or semi-trailer, or while in the process of having a trailer or semi-trailer attached to or detached from it, unless such trailer or semi-trailer is owned by the insured and specifically described in the policy at time of loss was valid. Peace v. Rock, 2018 WL 4816486
.
The Eastern District in Oklahoma confirmed that an insurer could not insure a motor carrier’s liability for punitive damages. The court concluded that when the motor carrier was bankrupt and the plaintiff sought relief from the stay the recovery was limited to the insurance proceeds and therefore punitive damages would not be recoverable. Nail v. Blue Donkey Transport, LLC 2018 WL 4832357

Worker’s Compensation

A driver who was injured in a tractor-trailer accident lost his claim for bad faith against his insurance carrier. The District Court in Arizona held that the damages alleged for bad faith denial all stem from Defendant’s alleged failure to authorize neuropsychological testing and/or treatment. As the plaintiff never sought review of the ALJ Award that adversely resolved the issue of Plaintiff’s entitlement to these continuing benefits there could be no claim for bad faith. Higgins v XL Insurance America, Inc. 2018 WL 4698649

The 8th Circuit Court of Appeals upheld the dismissal of a tort action by a co-driver against the operator of the truck. The court held that the plaintiff, while still a trainee, was a dual employee and therefore subject to the exclusive remedy of worker’s compensation. Quiles v. Johnson, 2018 U.S. App. LEXIS 28747

In the time between training and final sign on as a driver a plaintiff was fatally injured in a truck accident while being driven to get his final documents in place. The District Court of Massachusetts held that the motor carrier was subject to jurisdiction in the state where the plaintiff lived, concluding that the motor carrier had sufficient contacts during the solicitation period to warrant jurisdiction. Moura v. New Prime, Inc., 2018 U.S. Dist. LEXIS 173276

An owner operator’s efforts to seek worker’s compensation benefits failed in the Commonwealth Court in Pa. The court concluded that the plaintiff was an independent contractor and not an employee when acting as a owner operator under lease to a motor carrier. There was no evidence of supervision by the motor carrier and revenue was a split of the percentage. Baykhanov v. Worker’s Comp. Appeal Bd, Onixe Express, 2018 PA. Commw. Unpub LEXIS 554

When a plaintiff and a motor carrier joined together to pursue the motor carrier’s insurer for failure to settle within policy limits, the Eastern District of Michigan refused to allow the insurer to obtain a copy of the joint defense agreement, Wausau Underwriters Insurance Co. v. Reliable Transportation Specialists, 2018 WL 5078376. In a separate opinion in the same case the court denied the insurer’s motion that it had not acted in good faith, concluding that there were questions of fact as to whether it should have settled within the policy limits and also acknowledged that Michigan law limited the recovery against the insurer to the amount that the plaintiff would have been able to recover from the motor carrier if the insurer was not on the hook. 2018 WL 5077149

The Northern District of Mississippi denied a truck broker’s motion to dismiss a negligent entrustment and negligent hiring claim arising from a truck accident. The broker’s argument that the claims are preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) was rejected. Finley v. Dyer, 2018 WL 5284616

The court of appeals in Washington held that the DOT was not subject to a claim for contributory negligence arising from a truck accident. The DOT had failed a suit against a trucking company who damaged a bridge and the motor carrier claimed that the loss was caused, in part, by the negligence of the DOT. The Court held that a state statute precluded any finding of comparative fault on behalf of the State, and that the motorist liability statutes controlled over general proportionate liability statute. State of  Washington v. Mullen Trucking, 2018 WL 5133492

The Supreme Court in New Hampshire upheld the decision of the New Hampshire Compensation Appeal Board awarding temporary total disability and medical benefits, finding that, as a result of repeated exiting of the cab in a certain manner was an injury that resulted from a “mixed risk,” that the employment was “a substantial contributing factor” to the injury which was not preexisting. Appeal of Associated Grocers of New England, 2018 WL 5020121

The Supreme Court in Tennessee held that a truck driver, whose employer had no workers’ compensation insurance coverage, was not entitled to recovery from the vehicle manufacturer by asserting that the manufacturer was the truck driver’s statutory employer under Tennessee Code Annotated section 50-6-113 (2014 & Supp. 2017). The upheld the grant of summary judgment, holding that the truck driver failed to establish that the manufacturer undertook work for an entity other than itself, retained the right of control over the conduct of the work, or that the truck driver’s conduct in tarping the load was part of the manufacturer’s regular business or the same type of work usually performed by its employees. Osborne v. Starrun 2018 WL 5292264

Thanks for joining us,

Jean & Chad

Good day CAB Nation!

My goodness, autumn has arrived and I couldn’t be more excited.  I always look forward to fall as it signifies cooling of the temperatures and the start of the vibrant fall colors.  However, this year is special for me as I’m roughly one month into my career at CAB as the Sr. Vice President.  Although my time has been short here, I have enjoyed getting to know my co-workers and many of our subscribers.  I’ve always known CAB was a customer driven company, but that has become even more evident for me in the last month.  Our team continues to develop our products to make them even more vital to our customer processes.

If you have thoughts or suggestions on how to improve our tools and resources, I encourage you to reach out to myself or one of our team members.  We will be happy to work with you.

Our goal with Bits n Pieces is to share with you relevant news and resources that will keep you informed and on top of what’s happening in the transportation risk world.

This month we report:

The week of September 9^th was Truck Driver Appreciation Week.  The American Trucking Association celebrated the first truck driver appreciation week back in 1998.  20 years later it has grown in momentum and popularity.  Although this year’s event has past, I’d encourage you and your organization to get involved at the local, state or national level to show appreciation for the men and women that deliver everything from fresh apples to zinc.  The dates for the 2019 National Truck Driver Appreciation Week are September 9-15^th.

2018 Pocket Guide to Large Truck and Bus Statistics was released by the FMCSA the first week of September.  The pocket guide is an annual release that details inspections/investigations and general trucking statistics.  The data compiled is from 2017.  Last year, 3.5 million inspections were conducted, an increase of more than 50,000 from the previous year, but a reduction from the recent high of 56,000 in 2013.  Interesting to note, more than 86% of interstate freight carriers had no safety rating.  Roughly 10% had a “satisfactory” rating, 3.5 percent had a “conditional” rating and less than one percent had an “unsatisfactory” rating.  You can access the guide by clicking this link.  2018 Pocket Guide to Large Truck and Bus Statistics

Drivers with properly managed Diabetes no longer prohibited from operating Commercial Motor Vehicles (CMV) interstate.  Prior to this ruling, drivers with Insulin-Treated Diabetes Mellitus (ITDM) were prohibited from operating by the FMCSA unless they were able to obtain a waiver.  Under the new ruling, a Certified Medical Examiner (CME) can grant an individual with ITMD a medical examiners certificate from up to 12 months.  The treating provider that prescribes the insulin must provide the ITDM assessment for to the CME indicating a stable insulin regimen and control of the disease.

Bridgestone and the National Highway Transportation Safety Administration (NHTSA) has recalled roughly truck 2700 tires due to exposed steel cords resulting in rapid air loss that can increase the risk of a crash.  The two entities have established a plan to replace the tires.  For more information go to WWW.safercar.gov and search Campaign Number 18T011000.

HOS Commend Period Extended.  The FMCSA has extended the comment period for its advanced notice of proposed rulemaking for potential changes to the hours-of-service rules.  A number of national transportation and safety organizations including the American Trucking Association and the Commercial Vehicle Safety Alliance requested the extension.  Comments can be submitted via the Federal eRulemaking Portal and listening sessions.  The four areas of the HOS rules the FMCSA is considering changes to are:

-Expanding the current 100 air-mile short-haul exemption from 12 hours on duty to 14 hours on duty, to be consistent with the rules for long-haul truck drivers;

-Extending the current 14-hour on-duty limitation by up to two hours when a truck driver encounters adverse driving conditions;

-Revising the current mandatory 30-minute break for truck drivers who drive after the 8th hour of their workday; and

-Reinstating the option for splitting up the required 10-hour off-duty rest break for drivers operating trucks equipped with a sleeper berth.

The updated release and additional information can be found here.

CVSA reported on September 12 that the International Roadcheck 2018 out-of-service rates drop from 2017.  CVSA reported that there was a 1.4% decrease in the Out-of-Service rate for Level 1 inspections.  Similarly there was a .08% decrease in all drivers placed out-of-service for all Level I, II & III inspections.  The top out-of-service violation for vehicles was brake systems and Hours of Service for Drivers.  The three-day safety blitz was conducted from June 5-7, 2018.  During this time 67,502 inspections took place.

Cases

Cargo

The Eighth Circuit reversed the district court’s order finding that a claim under the Carmack Amendment against a rail carrier was untimely. While there was a nine month claim requirement the Court held that the plaintiff has complied in a timely manner. The Court held that there was a question of fact on whether a related party who was presenting a claim was subject to contractual terms that it was not privy to. Whatley v. Canadian Pacific Railway Limited, 2018 WL 4374897

Can a motor carrier be brought back into a cargo claim through a third party action by a joint tortfeasor? The Middle District of Pennsylvania held that they could be brought back in, denying summary judgment to the motor carrier and concluding that the claim for indemnity and contribution was not barred by the Carmack Amendment. Helvetia Swiss Ins. Co. v. Jones, 2018 U.S. Dist. LEXIS 160079.

A truck broker was partially successful in avoiding a motion to dismiss its claims against a motor carrier for non-delivery of a series of shipments. The Northern District of Illinois held that the broker sufficiently alleged that it was assigned the rights of the customer. The court held that the only claim was one which was subject to the Carmack Amendment and dismissed all other claims as preempted, including a claim for attorney’s fees and punitive damages. Coyote Logistics v. MPJ Trucking, 2018 WL 4144628

Over in the Western District of Pennsylvania a broker was permitted to assert a claim against the carrier for lost profits when the customer did not pay after a transit loss. It was not permitted to sue for anticipated damages which might occur if the customer sued the broker. The Court also held that the broker was not a third party beneficiary of the shipper’s cargo policy and could not assert a claim under that policy. Pittsburgh Logistics Systems,  Inc. v. Landstar Ranger, Inc. 2018 WL 4096282

A cargo claimant was awarded prejudgment interest when recovering on a cargo claim in the District of New Jersey. While the court awarded the judgment it refused plaintiff’s demand for a higher interest rate, noting that the fluctuating interest rate during the prejudgment period was a more appropriate option. Tryg Insurance Co. v. C.H. Robinson, 2018 WL 4146601

The Court did not fully dismiss a motor carrier’s efforts to seek a declaration as to the extent of its liability for a cargo loss. The Southern District of Florida held that plaintiff was not required to include other entities in the transportation line for the action to proceed, but did hold that the motor carrier had filed a “shotgun” complaint and needed to amend the complaint to more adequately address the facts in order to proceed with the case. Central Transport v. Global Aeroleasing, Inc., 2018 WL 4268887

When a truck is damaged while being transported by a tow company the Carmack Amendment does not apply to the claim. The 6th Circuit held that the emergency towing of an accidentally wrecked or disabled vehicle was exempt from federal jurisdiction and therefore the Carmack Amendment did not apply. Acuity Insurance Co. v. McDonald’s Towing and Rescue, 2018 WL 4096094

Preemption ruled the day in the District Court in West Virginia. The court dismissed the plaintiff’s state law claims arising from a claim for damage to household goods. Dzingeleski v. Allied Van Lines, 2018 WL 4224450.

The same did not hold true however when the plaintiff sought compensation for damages which occurred either during or in anticipation of transit or during long term storage. The Eastern District of West Virginia held that while a claim for transit damage was subject to the Carmack Amendment, the same did not hold true to a claim that damage occurred during long term storage. Nachman v. Seaford Transfer, 2018 WL 4186397

Physical Damage

Invoking the appraisal process on a pd claim will not necessarily preclude a claim for bad faith. The Court of Appeals in Colorado held that while the appraisal process was enforceable and results in a binding determination of the value of the tractor is did not resolve the insurance company’s liability for breach of contract or statutory bad faith. The case was remanded for reinstatement of the complaint for bad faith. Andres Trucking Co. v. United Fire & Cas. Co., 2018 Colo. App LEXIS 1327.

Auto

The Supreme Court of Oklahoma held that a motor carrier’s liability for negligent entrustment of a vehicle to an unfit employee was a cause of action which was separate from a claim of respondeat superior. Even when the motor carrier concedes vicarious liability for the actions of the driver the claim of negligent entrustment was not barred. Fox v. Mize, 2018 WL 441782

The District Court in Illinois upheld a denial of a motor carrier’s request for summary judgment. The motor carrier sought dismissal of the claim that it ratified the actions of the driver in falsifying records. As there remained the potential for a jury to find that the motor carrier deliberately chose to ignore the actions of the driver summary judgment was inappropriate. Langan v. Rasmussen, 2018 WL 4148842

A plaintiff in the Southern District in West Virginia was not permitted to collect under an MCS-90 issued on behalf of a trucking company when the transport involved was intra-state. The court also held that as the plaintiff recovered more than the financial responsibility from another insurer for the motor carrier no MCS-90 payment would be permitted. Finally the court noted that the plaintiff would be obligated to indemnify the insurer for any payment it might have paid because the plaintiff had agreed to indemnify the motor carrier when it settled the loss. As the motor carrier was obligated to indemnify an insurer who makes an MCS-90 payment, the circle of indemnity would require the plaintiff to pay back any money it might receive. Lyles v. FTL, Inc. 2018 WL 4343415

Simply because the motor carrier has a designated agent for service of process, as per the requirements of the BOC-3 filing, the motor carrier will not be subject to jurisdiction in a venue with no connection to the accident. The District of Vermont transferred a personal injury action arising out of truck accident in another venue where there was no other evidence of contact with the state of Vermont by the motor carrier. Hegemann v. M&M Am, 2018 U.S. Dist LEXIS 160683

Claims for negligent entrustment, punitive damages and attorney’s fees were dismissed against a motor carrier and a leasing company in the Southern District of Ohio. The court also held that there was no such thing as negligent leasing or loss of consortium for a fiancé, dismissing those causes of action. Moran v. Ruan Logistics, 2018 U.S. Dist. LEXIS 159648

Watch that statute of limitation. The District Court in Connecticut held that the filing of a complaint by UPS against a second trucking company for a personal injury accident was time barred. Although counsel tried to get the suit in under the gun they were unsuccessful. However they were not barred from asserting counter-claims in a second suit as the applicable Connecticut statute of limitation was not applicable to counter-claims – saved by the bell. Boahen v. Trifiletti, 2018 U.S. Dist. LEXIS 160276

Admitting liability for a truck accident will not allow a motor carrier to seek a ruling that the plaintiff and witness cannot testify as to the facts of the accident and the apparent speed of the driver. And while the plaintiff and the witnesses cannot reach a conclusion about the medical condition of the plaintiff they can testify as to the symptoms. Bishop v. Anderson, 2018 U.S.Dist. LEXIS 159636

Over in the District Court in Connecticut the court held that the MCS-90 endorsement did apply to an intra-state transport as the Connecticut legislation expanded its applicability to intra-state transport. The court also held that the insurer was not entitled to summary judgment that the hired cargo coverage would not provide coverage when the insured hired the car from a related company, or that various provisions of the policy precluded coverage or that it had no committed bad faith in failing to address the claim or provide a defense to the motor carriers. Veilleux v. Progressive Northwestern Insurance Co. 2018 WL 4374073

Bad faith was not an option for one plaintiff in the Northern District of Illinois. While the court concluded that the motor carrier’s insurer was obligated to defend and indemnify the shipper for injuries which occurred during the loading process, its actions were not in bad faith. The court concluded that the shipper was using the motor carrier’s tractor, a requirement to trigger the motor carrier’s policy. National Casualty Co v. South Shore Iron Works,2018 WL 4469017

When a trucking company drove onto and damaged a high school’s track it was liable only to substantially restore the track to its precondition. The District Court in Connecticut held that the school was not entitled to a complete make over. Borough of Naugatuck v. Knight Transportation, 2018 WL 3431160.

The Supreme Court in Alabama held that an injured driver who failed to exercise due diligence in determining who else should be named in a suit was barred from seeking to relate his amendment back to the original complaint to add additional parties. The court denied the request for a writ of mandamus. Ex Parte American Sweeping, Inc. 2018 WL 4177528.

A township seeking recovery for attorney’s fees as part of its tort claim against a trucking for damaging a historic bridge was thwarted in the Middle District of Pennsylvania. The court accepted that the American Rule, which precludes recovery of attorney’s fees, should be applied as the plaintiff had failed to support any reason why the rule should not be applicable. South Middleton Township v. Amerifreight Systems, 2018 WL 4207765

Even though a plaintiff filed a suit alleging that it was a citizen of Texas he was permitted to allege it was a citizen of Mexico in a second suit. As the plaintiff and the motor carrier were both Mexican citizens the case was remanded by the Southern District of Texas back to state court for adjudication. Pina-Martinez v. Saldana, 2018 WL 4140683.

A trucker was granted partial summary judgment in a suit in the Northern District of New York arising from a truck accident. The Court held that plaintiff’s miscarriage after the accident was not caused by the accident and that her other child suffered no serious injury or zone of injury in the accident. As there was a question of whether plaintiff suffered PTSD as a result of the accident the court allowed that issue to proceed. Fang v. Dofar, 2018 WL 4054096.

How do you apply the limits afforded by a guaranty fund? The Supreme Court of South Carolina concluded that when the defendant trucking company’s insurer went insolvent the $300,000 guarantee cap would apply to the full amount of the damages and that any settlement amount by other insurers is offset against the full amount and not the $300,000 cap. Buchanan v. South Carolina Property & Casualty Insurance Guaranty Assoc. 2018 WL 4212101

When a plaintiff was injured by a truck which was moving in reverse the jury determined that it was the spotters who bore the brunt of the loss. The Court of Appeals in Texas held that the consignee, who was supposed to be controlling the actions of the driver and/or warning him of the presence of other parties, bore 64% of the liability for the truck accident. Primoris Energy Services v. Myers, 2018 WL 4136186

The Court of Appeals held that a lessor of a truck bore no liability for the actions of the driver and the motor carrier. The Court concluded that retaining the right to inspect the vehicle during the term of the lease did not create a duty to the driver unless there was evidence that the lessor knew of the dangerous condition. Hernandez v. Grando’s LLC, 2018 WL 4233790

Failure to comply with Pennsylvania’s rules regarding notice of cancellation was fatal for an insurer seeking to deny coverage for a truck accident. The Middle District in Pennsylvania refused to reconsider its decision that the failure to specifically note the reason for cancellation on the notice precluded the cancellation, even when the evidence showed that the motor carrier was aware of the reason. Sunday v. Berkshire Hathaway Homestate Insurance Company, 2018 WL 4509216

The failure to properly provide a privilege log in responding to discovery was determined to be a waiver of privilege. The insurer in a coverage case was required by the Eastern District of North Carolina to produce a complete copy of its claim file in the coverage suit. Progressive Southeastern Insurance Co. v. Arbormax Tree Service, LLC, 2018 WL 4431320

The court granted summary judgment to a motor carrier and its driver for the plaintiff’s claim of wantonness. The Northern District of Alabama held that there would be no claim for wantonness when the driver simply misjudged his operations and had an accident. Edmonds v. Courier Service, Inc. 2018 WL 4409300

Accepting liability under the theory of respondeat superior allowed a motor carrier to seek dismissal for a claim of negligent entrustment of the vehicle. The District Court in Maryland further held that plaintiff had set forth no facts to support such a claim, even if it existed. Brown v. Kahl,2018 WL 4108030

The effort of a pilot car company to seek a defense and indemnity under the motor carrier’s policy failed in the Western District of Washington. The court held that there was no conceivable allegation under the complaint which would support that the pilot car was an additional insured under the motor carrier’s policy. DeTray v. AIG Insurance Company of Canada, 2018 WL 4184334

Thanks for joining us,

Jean & Chad