Bits & Pieces

Volume 21, Edition 1

One month into 2018. Not much happening this month in the transportation industry, but as always we find some nuggets of info to keep you aware of issues that impact the risk and exposures of this unique industry.

UCR FEES – The FMCSA has finally released the UCR fees for 2018 and 2019. Small operations will see minimal decreases in 2018 and 2019.

The 2018 fees:

Number of Trucks	Fee
0-2	$ 69
3-5	$ 206
6-20	$ 410
21-100	$ 1,431
101-1,000	$ 6,820
1,001 and above	$66,597

Fees for 2019:

Number of Trucks	Fee
0-2	$ 73
3-5	$ 217
6-20	$ 431
21-100	$ 1,503
101-1,000	$ 7,165
1,001 and above	$69,971

HACKED! – The FMCSA’s National Registry of Certified Medical Examiners website was hacked on Dec. 1. The system went through a month of problems, although the DOT reports that driver information was not disclosed. There is now a new search tool to help drivers, motor carriers and state driver’s license agencies verify that a health care provider is certified and listed on the registry.

HOURS OF SERVICES EXCEPTIONS – The FMCSA provided some regulatory guidance to clarify the applicability of the “Agricultural commodity” exception to the “Hours of Service of Drivers” regulations, and is requesting public comments. This regulatory guidance is being proposed to ensure consistent understanding and application of the exception by motor carriers and State officials enforcing hours of service rules identical to or compatible with FMCSA’s requirements. You can view the guidance and comment request here.

TRANSPORTATION TRENDS – The Bureau of Transportation Statistics has released its report which quantifies the tremendous impact that trucking has on our economy. It is a big impact! Those interested in the nitty gritty numbers and scintillating statistics can view the report here.

MCS 150 FORMS – Starting on Feb 4, 2018, the FMCSA will no longer accept expired paper versions of the MCS-150, MCS-150B, and MCS-150C. If you are interested in seeing the updated forms, you can do so here.

CSA CHANGES – As we all know there are anticipated changes to CSA as a result of the study undertaken by the National Academy of Sciences. The FMSCA announced during a recent presentation that it has the following timeline for moving forward with a possible new CSA model.

* Now: Initiate project, gather information

* Spring 2018: Data analysis

* Summer-Winter 2018: Small-scale IRT modeling

* Winter 2018-Summer 2019: Full-scale IRT modeling

* Summer-Fall 2019: Evaluation and implementation of the plan

OOIDA v. DOT – The Court of Appeals in D.C. held that drivers were unharmed by the mere existence of inaccurate information in the Department’s PSP database when the DOT failed to remove dismissed citations from the driver’s records. The Court held that dissemination of inaccurate database information to prospective employers was, however, enough to constitute sufficiently concrete injury to establish drivers’ standing to bring action to compel DOT to delete dismissed citations from MCMI. You can read the decision here at Owner-Operator Indep. Drivers Ass’n, Inc. v. United States Dep’t of Transportation, No. 16-5355, 2018 WL 385242 (D.C. Cir. Jan. 12, 2018)

FOOD SAFETY MODERNIZATION ACT – The FDA has launched a website to provide information about the Food Safety Modernization Act and how to comply with it. The website can be viewed here.

CURRENT CASES:

CARGO:

The District Court in New Jersey dismissed a plaintiff’s claim for damages arising from a shipment transported from New York to a local New Jersey warehouse. The Court agreed that any claim against the defendant was subject to the preemptive effect of the Carmack Amendment and the FAAAA. (Surplus African Foods v. Air France, 2018 WL 372169)

The same held true in the Eastern District of Michigan where a breach of bailment claim was preempted under the Carmack Amendment. The Court went further, concluding that even under a breach of bailment claim, the plaintiff could not establish that the damage to his vehicle occurred in transit as a result of the negligence of the trucking company. Plaintiff had the vehicle repaired prior to the defendant’s examination of the vehicle so it was virtually impossible to determine when then loss occurred. (Strong v. Passport Auto Logistics, 2018 WL 352891)

A broker was successful in defeating the plaintiff’s claim that the broker was liable as a carrier for a cargo loss. The District Court examined the facts and held that there was no material fact at issue which would preclude summary judgment for the broker. In addition, when the co-defendant refused to concede that the broker was not a motor carrier, and the facts and admissions clearly proved otherwise, the codefendant was held liable for the broker’s attorney’s fees. The motor carrier was not as successful, with the Court denying its motion for summary judgment, holding that the carrier could be liable for damages which occurred while in the possession of another carrier, could be liable for consequential damages and may not have properly limited its liability. (Delta Stone Products v. Xpertfreight, 2018 WL 354461)

AUTO:

The District Court in New Jersey granted a motion in limine precluding certain testimony by the plaintiff’s expert on the alleged negligent training of the driver. The Court held that reliance on the Professional Truck Driver Institute curriculum, motor carrier handbooks and the large truck crash causation study was not enough to establish an admissible factual basis for the testimony. (Estate of Mallett v. Schmidt Baking Co., 2018 WL 386151)

The Southern District of Texas held that a negligence claim against a broker for property damage to the delivery location was not preempted by the Carmack Amendment. The Court held that a general negligence claim was not preempted by FAAA. In addition the Court held that the action would be remanded to back to state court for adjudication. (DNOW v. Paladin Freight Solutions, Inc., 2018 WL 398235)

Who is responsible for injuries when the cargo rolls off the truck onto someone? That was the question in the Northern District of West Virginia. For these parties the Court held that questions of fact existed as to the obligations of the shipper and the trucker to properly secure the cargo. Only the general contractor on the project was granted judgment in its favor. Everyone else will continue the battle as to whether it was negligent and/or was obligated to indemnify anyone else. (Fiedler v. R.V. Coleman, 2018 WL 3861619)

A motor carrier will not be liable for claims of negligent entrustment, wantonness or negligent hiring when there was no fact which would support that the driver should have been of any concern to the motor carrier. The Northern District of Alabama dismissed those causes of action where the evidence established that the motor carrier had adequately evaluated the driver who had no substantive issues. The standard negligence claim was permitted to continue. (Congress v. Morehead, 2018 WL 325312)

When a state court action is already proceeding which addresses claims by some of the parties to a truck accident, a separate action brought by one truck driver against the other truck driver was stayed in the Northern District of Alabama. The Court held that there was an extreme danger of piecemeal litigation and concluded that the state court action should continue first. (Smith v. Gonzalez, 2018 WL 287764)

The Western District of North Carolina held that a motor carrier was not liable for negligent hiring, training, retention, entrustment or for punitive damages when there was simply no evidentiary support for the injured plaintiff to make such a claim. While the driver had various violations on his record the motor carrier took appropriate steps to address each violation as it occurred. This case spells out a good blueprint for a carrier to follow. (McAffe v. Howard Baer, 2018 WL 411339)

A trucking company and its driver were held 25% liable for an accident which occurred when a second accident occurred nearby 26 minutes after the truck driver’s accident. The Court of Appeals in Kansas held that the truck driver’s negligence caused the first accident and the needed post-accident traffic control actions and there it was reasonably foreseen that there could be a subsequent accident. (Van Dorn v McNish, 2018 WL 385733)

What happens when no one can find the copies of old insurance policies? In the Appellate Court in Illinois a trucking company sought insurance for liabilities which arose from truck cleaning facilities which cleaned hazmat materials from its truck. The trucker was the subject of environmental contamination cases. The Court held that the trucker was able to establish that the preponderance of the evidence showed that the policies, g/l and auto, were likely issued and subject to the known terms of other policies. The trucker was entitled to recover under the policy. (Travelers Indemnity Company b. Rogers Cartage Company, 2018 Il. App (1st) 160780)

The Western District of Oklahoma held that a claim for negligent entrustment could be alleged against a trucking company, even when it conceded vicarious liability for the driver. The Court held that where the plaintiff alleged that the carrier knew or should have known that the driver was incompetent it was premature to dismiss the cause of action for negligent entrustment. (Annese v. US Express, 2017 U.S. Dist. LEXIS 212545)

The Court of Appeals in Georgia held that under its specific venue statue for claims against motor carriers a motor carrier would not be permitted to transfer a wrongful death action to the county where its principal place of business was located. The Court held that pursuant OCGA § 40-1-117 (b) venue was proper where the accident occurred and remanded the action back to that venue. (Blakemore v. Dirt Movers, 2018 WL 359951)

WORKER’S COMPENSATION:

The Court of Appeals in Nevada held that a driver was entitled to collect worker’s compensation benefits for injuries suffered when he was attacked by another driver at a truck stop. The Court held that the injury arose out of employment if there is a causal connection between the injury and the employment. As the plaintiff alleged that he was injured by the other driver when he went to discuss his improper driving tactics the Court concluded that there was a causal connection. (Savage Sweets, Inc. v. Johnson, 2017 WL 6804636)

The Assigned Risk Loss Sensitive Rate Plan was held to apply to a trucker’s policy and premium determination. The Court of Appeals in North Carolina reversed the decision of the lower court that it did not apply concluding that the policy provisions could not be read out of context. Where the policy specifically noted that it was subject to the rating of the LSRP the insured could not argue that it was not applicable. (ARD Trucking v. Travelers Prop. Cas. Co. of Am, 2018 S.C. App Unpub LEXIS 17)

California will not permit an injured truck driver from obtaining the names of the independent medical reviewers who determined that the truck driver was not entitled to additional medical services. The Court held that the secrecy requirement of the California statute did not deny due process to the driver. (Zuniga v. Worker’s Compensation Board, 2018 WL 388009)

Off to Costa Rica for a warm week of vacation! See you next month.

Volume 20, Edition 12

Here we are at the end of another year. No one can say that this year wasn’t interesting. We take this opportunity to thank you for all of your support over the last year. It is truly a pleasure to work with professionals who are concerned about this industry and strive to “do it right.” We look forward to serving you in the coming year.

December is generally a quiet month for news but we found some bits of interest.

OPERATION SAFE DRIVER – CVSA released the results of its Operation Safe Driver Week which took place in October. The top five warnings/citations issued to CMV drivers were state/local moving violations – 84.2 percent (of warnings/citations); speeding – 7.4 percent; failure to use a seat belt – 2.6 percent; failure to obey traffic control device – 2.5 percent and using a handheld phone – 0.8 percent. The top five warnings/citations issued to CMV drivers were state/local moving violations – 84.2 percent (of warnings/citations); speeding – 7.4 percent; failure to use Seat Belt – 2.6 percent; failure to obey traffic control device – 2.5 percent; using a handheld phone – 0.8 percent

PERSONAL CONVEYANCE GUIDANCE – Drivers often use the tractor, whether hauling cargo or not, as a personal conveyance. The FMSCA has now issued additional guidance on the issue and is seeking comments from the public on the proposed guidance. The new guidance may allow for the driver to use the tractor for personal use, even when hauling freight. The guidance lists five instances in which the use of a commercial motor vehicle would not qualify as personal conveyance:

* The movement of a CMV to enhance the operational readiness of a motor carrier. For example, moving the CMV closer to its next loading or unloading point or other motor carrier-scheduled destination, regardless of other factors.

* After delivering a towed unit, and the towing unit no longer meets the definition of a CMV, the driver returns to the point of origin under the direction of the motor carrier in order to pick up another towed unit.

* Continuation of a CMV trip in interstate commerce, even after the vehicle is unloaded. In this scenario, on-duty time does not end until the driver reaches a location designated or authorized by the carrier for parking or storage of the CMV, such as a permanent residence, authorized lodging, or home terminal.

* Bobtailing or operating with an empty trailer to retrieve another load.

* Repositioning a CMV and or trailer at the direction of the motor carrier.

NEW DRUG TESTING – Starting in 2018, random pre-employment and post-accident drug tests will be screened for four additional synthetic opioids, hydrocodone, hydromorphone, oxymorphone and oxycodone. Drivers, if they test positive, will be referred to determine if a driver should be permitted to drive, even if the driver is using properly prescribed medications.

ELECTRONIC LOGGING DEVICES – December 18, 2017 came and went and ELD’s are now the law. Last minute efforts to stop the implementation failed, at least for now. If you are interested in what this all means, the FMCSA has released its FAQ’s which can be viewed here. In other ELD news, Canada may be joining the bandwagon. Transport Canada has published its long-awaited electronic logging device (ELD) mandate proposal. Transport Canada is proposing a 2 year phase in, with an additional 2 years grandfathering period for carriers that have already started using electronic recording devices. Additional changes to supporting documents requirements will also mirror U.S. regulations to permit easy cross border operations.

AUTONOMOUS VEHICLES – The GOA released its report on the hot topic of automated vehicles, concluding that the DOT needs to get a comprehensive plan in place to organize, prioritize, and clearly monitor the progress with the NHTSA, FHWA, and the Office of the Secretary, and other administrations. You can view the report here.

A LITTLE HUMOR – I found this while researching the “Bits and Pieces” and thought we all needed a laugh. Career Builder reports that when asked to share the most dubious excuses workers have given for calling in sick, employers reported hearing the following:

* A bear was in employee’s yard and they were afraid to come out.

* Employee’s phone exploded and it hurt their hand.

* Employee ate a toothpick in his food at a restaurant.

* Employee broke his arm wrestling a female bodybuilder.

* Employee called in “fat” because uniform didn’t fit.

* Dog swallowed employee’s car keys so she was waiting until it came out.

* Employee left his clothes at the laundromat.

* Employee did not have enough gas to get to work.

* Employee had to re-schedule a new manicure because some of the artificial nails fell off.

* Employee was not sure how the solar eclipse would affect them so it would be safer to stay at home.

CARGO:

The Third Circuit upheld the District Court decision to grant judgment to a trucking company despite the theft of a shipment of pharmaceuticals while in transit. The Court held that as the transportation contract waived liability under the Carmack Amendment and there was no other basis for the plaintiff to bring a breach of contract claim against the motor carrier, the motor carrier was not responsible for the lost shipment. The Court also held that the truck stop was not liable for the loss. (Sanofi-Aventis, U.S. v. Great American Lines, 2017 WL 6032465)

The request to assert causes of action outside of the Carmack Amendment were denied to plaintiff in the Eastern District of Michigan. The Court granted judgment on the pleadings to the defendant for all causes of action except the Carmack cause of action. As to the Carmack Amendment the Court held that it was premature to determine whether one plaintiff was precluded from recovering damages if it was a broker or whether the other plaintiff had suffered actual damages. (Metalform Services v J.J. & Associates, 2017 WL 6048819)

CH Robinson was unable to avoid liability as a motor carrier in the District Court in New Jersey. The Court held that CH Robinson held itself out as a carrier, had never specifically disclosed that it was a broker, offered seamless services and, with respect to its relationship with the motor carrier, referred to line haul charges and not brokerage operations. (Tryg Insurance Co. v. CH Robinson, 2017 WL 5725057)

A truck broker was permitted to pursue recovery against a trucker in its home venue. The District Court in Utah held that while the broker carrier contract provided that Illinois law would apply, the venue provision in the contract was mandatory and allowed for venue in the broker’s place of business. (ProStar Logistics v. AN Enterprises, 2017 WL 5891774)

A motion to remand was granted by the Eastern District of Oklahoma when the removing defendant failed to obtain consent from a defendant who was served by publication. The complaint, which was, in part, based upon the Carmack Amendment contained an additional conversion claim against an employee who allegedly stole goods from the plaintiff. As that employee was served by publication consent to removal was required. (Archer v. All My Sons, 2017 WL 6442100)

Similarly over in the District Court in New Jersey the Court dismissed all non Carmack causes of action asserted against the defendant, but concluded that plaintiff had established proper notice under the tariff requirements of the motor carrier. A prima facie claim for recovery under the Carmack Amendment was sufficiently stated to avoid a motion to dismiss. (Tokio Marine America Ins. Co. v. Jan Packaging, 2017 WL 6021858)

AUTO:

The MCS-90 provides no protection to one who is not a named insured on the policy. The Northern District of Illinois held that where the vehicle was not covered by the policy, and the defendant was not the named insured, coverage would not apply under the endorsement. (Occidental Fire & Cas. Co. v. D’Line Logistics, 2017 U.S. Dist 208524)

The 7th Circuit Court of Appeals upheld a notice provision in a commercial auto policy when the insured was sued for a truck accident. The Court held that a 21 month delay in notifying the insurer of the accident was unreasonable as a matter of law. The Court held that the insurer was denied an opportunity to investigate the loss and settle without a suit. (State Auto Prop & Cas. Ins. Co. v. Brumit Servs., 2017 U.S. App LEXIS 24920)

A motor carrier was granted summary judgment in the Appellate Division in NY when the evidence showed that the plaintiff, a bicyclist, drove into the back of a delivery truck parked on the side of the road. (Kraeger v. Federal Express Corp., 2017 N.Y. App. Div LEXIS 9041)

We continue to monitor decisions where trucking experts are addressed. The District Court in Colorado considered the testimony of Richard Allen, presented as a trucking expert. The Court held that when a company was already vicariously liable for the actions of the driver the failure of the trucking company to comply with certain regulations was not a permissible area of testimony, nor was his testimony concerning the failure of the driver to inspect the vehicle. The expert was, however, permitted to rely on the Model Commercial Drivers Manual as evidence of the acceptable standards in the industry. (Bautista v. MVT Servs., LLC, 2017 U.S. Dist. LEXIS 201683)

The Northern District of Georgia dismissed a claim for punitive damages against a trucking company. The Court held that a claim for punitive damages could not be supported when the plaintiff was unable to show that a failure to investigate a driver was a proximate cause of the loss. The Court also held that a motor carrier was not required to train a driver who already had a CDL and that assigning a driver to a tractor trailer which may have maintenance issues was not enough to meet the requirements for possible imposition of punitive damages. Finally the Court held that there could be no direct negligence claim against a motor carrier who conceded vicarious liability for the actions of the driver. (Amoateng v. Dexter Nickerson, 2017 WL 5749604)

A motion to amend a complaint to add additional claims against a motor carrier, and to pursue a claim against a truck broker was denied in the Northern District of Alabama when the plaintiffs failed to allege that each plaintiff had suffered injuries in excess of the jurisdictional limit. The Court also denied a request to seek a declaration as to the applicability of coverage for punitive damages under the motor carrier’s policy. The Court held that such a claim was not ripe for adjudication when the motor carrier had not yet been found liable for such damages. (Thomas v. Aigen, 2017 WL 6034197)

Neither the insurance policy nor the MCS-90 applied to a claim against a motor carrier when neither the insured nor a covered vehicle was involved in the accident. The District Court in South Carolina held that when the trailer was being pulled by another party who was properly insured, and the trailer was not scheduled on the policy at issue, the insurer would have no obligation to indemnify the defendant. (Trustguard Insurance Co. v. Brown, 2017 WL 5991866)

Motions in Limine are very case specific but it is often interesting to see how Courts consider the introduction of evidence concerning driver operations. The Middle District of Pennsylvania considered various evidence related to medical issues but also considered whether subsequent driver accidents could be admitted (no); whether the driver was using a cell phone could be addressed (yes); whether the driver had a medical certificate (yes); the driver’s post -accident employment status (no). (Zawicki v. Armstrong, 2017 WL 6206290)

The business-use exclusion in a commercial auto policy did not apply when the lease as contemplated by the insurance policy did not exist at the time of the accident, even though the failure to have a lease was a violation of the federal leasing regulations. The Court of Appeals in Michigan also held that the insurer was obligated to pay prejudgment interest on the policy limits from the date the complaints in the underlying actions were filed until the date of the consent judgments. Post judgment interest was not required, however, as the coverage for post judgment interest required that the insurer had under the defense of the insured. (Hunt v. Drielick, 2017 WL 6390073)

WORKER’S COMPENSATION

The Court of Appeals in North Carolina upheld the decision of the North Carolina Industrial Commission which concluded that it could exercise jurisdiction over a claim by the plaintiff which was filed more than 2 years after plaintiff received benefits from a Tennessee Worker’s compensation program. The Court concluded that payments made by a different program would not be considered when determining compliance with North Carolina timely claim requirements. (Hall v. U.S. Express, 2017 WL 6001881)

The Appellate Court in Illinois held that the last act for contracting employment between a truck driver and his employer occurred in Illinois where the drug test and physical were completed. The fact that the driver may have had to appear at the corporate office in Missouri did not change the trial court decision. However, the Court held that the driver had failed to give notice to the Commission in a timely manner and therefore vacated the award to the worker. (Gilster Mary Lee Corp. v. Illinois Worker’s Comp., 2017 Il. App 160331)

The Supreme Court of Tennessee concluded that a driver did not suffer a compensable work related injury when he simply suffered degenerative damage to his spine. The employer was hurt using a handrail to pull himself up the catwalk of a tanker truck. (T&B Trucking v. Pigue, 2017 Tenn. LEXIS 788) A similar result was delivered by the Supreme Court of Appeals in West Virginia when the Court concluded that the plaintiff was unable to establish that he suffered a compensable work related injury following a small fender bender with another truck. (Steele v KC Transp., Inc. 2017 W. Va. LEXIS 1055)

Happy New Year One and All!