Autumn is with us and everyone is heading back to the salt mines and gearing up for the fall rush.  I am looking forward to seeing many of you in Orlando this week at the MCIEF Annual Conference, next week at the NTHECC and later in the month at the IMUA meeting in Virginia.  I look forward to chatting with you about the new CAB services.

Things were pretty quiet in the news this month as the final summer holidays were taken.  This month we report:

AUTOMATED VEHICLE POLICY – The DOT has announced its policy regarding automated vehicles.  The policy targets the highly automated vehicles and is broken into four components – vehicle performance guidance, model state policy, current regulatory tools and modern regulatory tools.  You can read the policy here.

Basically the vehicle performance guidance for automated vehicles includes a 15-point safety assessment for manufacturers.  It also requires data sharing that allows regulators to access databases for information regarding crashes. All classes of vehicles, including trucks and buses, are affected by the 15-point safety assessment.

The model state policy is a framework that will hopefully be employed by the states, who are free to modify any model. Suggested state policies include law enforcement considerations; liability/insurance; registration and titling; drivers of deployed vehicles; policies and regulations traditionally set at the state level.

While the NHTSA has existing regulatory tools, such as letters of interpretation the NTHSA has modified the process to permit quicker response, expected within 50 days. The NTHSA can also allow exemptions to the rules.  In addition the DOT is asking to allow NHTSA pre-market approval and pre-market safety assurance. It is also seeking the right to issue cease and desist orders in the event of an imminent hazard.  NHTSA is requesting the authority to regulate post-sale software changes in automated vehicles. An increase in exemptions allowed is also being requested. NHTSA is asking to increase the number of exemptions to 5,000 vehicles per year for up to five years. An increase from 5,000 to 25,000 vehicles will allow for more efficient safety data, according to the DOT.

WINDSHIELD LAW – The DOT now agrees that drivers may mount gadgets on the windshield of a vehicle if it is part of a vehicle safety technology likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved absent the exemption.  The exemption will go into effect 30 days following publication on September 23. Devices that truck drivers and motor carriers will be able to mount on their windshields include “fleet-related incident management” systems, “performance of behavior management” systems, speed management systems, lane departure warning systems, forward collision warning or mitigation systems, active cruise control systems and “any other technology that the Secretary (of Transportation) considers applicable.

ELD RULES IN TEXAS –  The Texas Department of Public Safety has issued a final rule requiring intrastate motor carriers and drivers to install and use ELDs that meet the requirements in Part 395 of the Federal Motor Carrier Safety Regulations (FMCSRs) by December 16, 2019.

Until December 16, 2019, intrastate motor carriers in Texas may use:

* An ELD that meets the requirements in Part 395, Subpart B;

* An automatic on-board recording device that meets the requirements in Section 395.15; or

* A record of duty status that meets the requirements in Section 395.8.

Under the federal ELD regulations carriers must be compliant by December 18, 2017. Motor carriers that have installed compliant automatic onboard recording devices (AOBRDs) in vehicles and require drivers to use them by that date will have until December 16, 2019, to upgrade or replace the unit with an ELD. FMCSA is developing roadside inspection technology and training for roadside officers, which is expected to be deployed several months ahead of the December 2017 date.

INTERCHANGE RULES – The FMCSA has announced its intent to issue a rulemaking concerning revisions to its May 27, 2015, final rule titled “Lease and Interchange of Vehicles; Motor Carriers of Passengers.” The purpose of the rule is to identify the motor carrier operating a passenger-carrying commercial motor vehicle that is responsible for compliance with the safety regulations and ensure that a lessor surrenders control of the CMV for the full term of the lease or temporary exchange of CMV(s) and driver(s).

The FMCSA, after consideration of various petitions is considering the following regulatory changes:

Excluding “chartering” (i.e., subcontracting) from the leasing requirements.

Amending the CMV requirements for the location of temporary markings for leased/interchanged vehicles.

Changing the requirement that carriers notify customers within 24 hours when they subcontract service to other carriers.

Expanding the 48-hour delay in preparing a lease to include emergencies when passengers are not actually on board a bus.

The FMCSA will hold a roundtable discussion on the scope of the issues to be addressed in the forthcoming rulemaking. The meeting will be public and will seek public input regarding the assignment of responsibility for safety violations to the correct party. Individuals with diverse experience, expertise, and perspectives are encouraged to attend. If all comments have been exhausted prior to the end of the session, the session may conclude early.

CASES

 AUTO

 The Western District of Virginia considered the various causes of action against a trucking company arising from a motor vehicle accident.  The Court dismissed causes of action based upon placard liability, negligent hiring, negligent entrustment and negligence per se and dismissed a punitive damage claim against the carrier, but not the driver.  The Court also concluded that the motor carrier could be vicariously liable for the actions of some of the defendants.  (Lester v SMC Transport, 2016 WL 4595696)

The Court of Appeals in Indiana upheld a default judgment against a driver and a motor carrier.  The Court concluded that the plaintiff’s service on the truck driver at the address provided to law enforcement following collision and the service on the trucking company through Secretary of State using business address provided by truck driver comported with due process. There was no basis to vacate the default. (Jordache White & American Transport, LLC v. Reimer, 2016 WL 4698963)

The Court in Louisiana held that plaintiff was time barred from pursuing a trucker and its insurer when it failed to file a timely suit in the state. The fact that plaintiff had filed a timely case in another state, but failed to complete service, was insufficient to toll the limitation period.  (Gallagher Basset v. Canal Insurance Co., 2016 WL 4942331)

The Middle District of Pennsylvania decided that the motor carrier’s training records could be construed as showing persistent and profound problems with the driver’s performance and permitted a cause of action for punitive damages to proceed.  The Court held that the evidence could permit an inference that the defendants were aware of a significant risk to safety and failed to act in the face of this known risk. (Botey v. Green 2016 U.S. Dist. LEXIS 121591)

While the Court was not ready to make a decision on the applicability of coverage for a series of claims against a motor carrier, the Middle District of Pennsylvania held that an insurer would not be liable under Pennsylvania law, for bad faith because it provided a defense under a reservation of rights for some, but not all similar claims.  (Westfield Insurance Co v. Icon Legacy Custom Modular Homes, 2016 WL 4502456)

The Court of Appeals in Texas held that a plaintiff was not entitled to recover under the MCS-90 when the judgment was not against the named insured.  In the absence of a judgment against the named insured there was no direct right of action. (KLLM Transport Services v Hallmark County Mutual Insurance Co., 2016 Tex. App. LEXIS 10089)

The 6th Circuit held that a consignee was not subject to suit when a motor carrier’s driver was injured while unloading freight.  The Court held that under Kentucky law the process of unloading materials amounted to work that the consignee or similar business perform with their employees and they should be entitled to rely upon the defense that the exclusive remedy for the driver was worker’s compensation.  (Black v Dixie Consumer Products, 2016 WL 4501680)

The Southern District of New York denied a plaintiff’s motion to set aside a defense verdict entered in favor of a trucking company  The Court sustained the finding in the underlying action that the plaintiff had failed to suffer a serious injury, a prerequisite for recovery.  (Manlapig v. Horace, 2016 WL 4617305)

The Court of Appeals for the 5th Circuit refused to permit a garnishment proceeding against an insurer based upon a judgment entered against the motor carrier defendants. The Court concluded that the judgment was void as plaintiffs had not properly affected service on the defendants. (Stephens v. Holcomb Logging, 2016 U.S. App. LEXIS 16354)

In another time bar case, the Court  in Texas held that when an accident injuring a truck driver took place on May 14, 2014, in Houma, Louisiana, the Louisiana based plaintiff who filed his personal injury lawsuit in Texas on May 15, 2015 was time barred under Louisiana law and could not pursue a claim against the customer.  The Court held that the driver was not entitled to rely upon provisions of a master service agreement that the customer had with the motor carrier to apply Texas law to claims under the contract.  (Oubre v. Schlumberger, 2016 U.S. Dist. LEXIS 130251)

CARGO

Everyone points the finger in identity theft cases.  The Northern District of New York dismissed a third party action brought by the broker against the shipper contending that the shipper should have known that the driver was a fraud. The Court held that even under the duty to act with reasonable care in releasing freight there was no plausible claim that the shipper acted improperly. The Court did grant the broker one last opportunity to try and allege a breach of contract claim. (Golub Corp. v Sandell Transport, 2016 WL 4703734)

A party who was not listed anywhere on a bill of lading, as a shipper or consignee, was determined by the Court in the Eastern District of Michigan to have no standing under the bill of lading.  Moreover the Court concluded that even if the plaintiff, another motor carrier who was buying the freight, had standing, it had failed to comply with the claim filing requirements and that the actual motor carrier was not estopped to assert the nine month requirement.  (Loves Express Trucking v. Central Transport, 2016 WL 4493674)

A broker or a carrier?  The Western District of Arkansas held that the contractual agreement between the plaintiff and defendant supported the conclusion that the defendant was a broker and not a carrier and accordingly the defendant was not liable under the Carmack Amendment for a cargo loss. The Court invited the parties to further brief whether a negligence claim against a broker was preempted.  (Zumba Fitness, LLC v. ABF Logistics, 2016 WL 4544355)

The Eastern District of Washington held that a .60 cent per pound limitation of liability was reasonable for a household goods shipment, despite plaintiff’s argument that the number was unreasonable as the goods were unique. The Court also held that the motor carrier undertook all required steps to limit its liability.  (Kimsey v. SML Relocation, 2016  WL 4728108)

The nine month claim filing requirement contained within the Fed Ex tariff was a game changer for the plaintiff in the Northern Division of Alabama.  The Court held that plaintiff’s delay claim, filed two years after the alleged event was too late to be addressed,  (Skanes v, Fedex Ground Package System, 2016 U.S. Dist. LEXIS 123255)

The Middle District of Florida held that an Offer of Judgment, which was not accepted, would not permit the defendant to recover attorney’s fees when it won the case.  The Court held that a state statute allowing for such fees was inapplicable when the only claim against the defendant was asserted under the Carmack Amendment.  (National Union Fire Ins. Co. v. All American Freights, Inc. 2016 U.S. Dist. LEXIS 120828)

Attorney’s fees are not recoverable under the provisions of the Carmack Amendment.  The Middle District of Florida reached that conclusion, even while entering a default judgment against the motor carrier.  While the defendant would be responsible for the cargo loss it would not be responsible for attorney’s fees.  (Scotlynn USA v. Singh, 2016 WL 4734396)

Do the terms of an ocean bill of lading apply when the cargo is damaged while being loaded onto the motor carrier’s truck at the port?  The District Court in Maryland held that there was a question of fact as to whether there was a delivery prior to the damage so as to end the terms of the bill of lading.  (Lofthouse Manufacturing v Port America Baltimore, 2016 WL 4662337)

Preemption ruled again in the District of Nevada as the Court dismissed all causes of action against a motor carrier when the plaintiff had pled only state law claims. The Court did grant leave for the plaintiff to allege a proper Carmack claim.  (Viswanathan v. Moving USA, Inc. 2016 WL 4521676)

A motor carrier’s efforts to have a declaratory judgment action dismissed by an insurer who had not yet paid a cargo claim failed in the Central District of California. The Court held that Carmack Amendment did not preclude declaratory judgment or a cross-claim for indemnity by a party to the shipping contract.  All parties were permitted to proceed with their actions against the motor carrier. (Kidd v American Reliable Ins Co., 2016 WL 4502459)

Over in the District of New Jersey the Court reconsidered a prior motion and concluded that a motor carrier could not be liable under both Carmack and contract, also finding that the contract contained an express waiver of the Carmack Amendment. The Carmack claim was not permitted and the Court went even further, concluding that the plaintiff was not an intended third party beneficiary of the contract that the motor carrier had with its customer and therefore had not standing to continue the action for cargo loss. (Sanofi Aventis v. Great American Lines, 2016 WL 4472949)

Cargo policies have many exclusions that are often a surprise to motor carriers after a loss.  The Western District of Kentucky held that an insurance agent bore no liability when a cargo claim for the theft of copper was denied based upon the policy exclusion for copper. (Atic Enterprises, Inc. v. Cottingham & Butler Insurance Services, Inc. 2016 U.S. Dist. LEXIS 127715)

If the temperature is high, but there is a question as to whether the goods are truly damaged, has the claimant met its burden of proof?  The District Court in New Jersey said yes. The Court held that a temperature threshold is a reasonable safeguard to assure food integrity, prolong shelf life, minimize deterioration, and protect the clamant and its customers. The product does not have to turn rancid or grow mold to warrant concern. (Mecca & Sons Trucking Corp. v. White Arrow, LLC 2016 U.S. Dist. LEXIS 127260)

The Southern District of Ohio upheld the preemptive effect of the Carmack Amendment, dismissing state law claims against a motor carrier. The Court concluded, however that there were questions of fact on whether the motor carrier had validity limited its liability and given the shipper an opportunity to declare a value.  (Synergy Flavors, LLC v. Averitt Express, Inc. 2016 4761932)

The Court of Appeals in Ohio dismissed an action brought against a motor carrier four years after a claimed loss for which the motor carrier had already paid its contractual liability. The Court held that the action was preempted by the Carmack Amendment and plaintiff had no basis for any further claim.  (Dickson v UPS Store, 2016 WL 4527187)

Claims against car haulers do not up very often so cases considering the car carrier bills of lading are interesting. The Northern District of Ohio refused to allow the motor carrier to rely on a provision which precluded liability when another car leaked fluid on to the damaged vehicle. The Court held that the bill of lading did not effectively limit the carrier’s liability, which was strict. The Court also held that the fact that the plaintiff would actually obtain a better vehicle with the required repairs was not enough to discount the payment to be made by the motor carrier. (Schneider v. Fifth Wheel, 2016 WL 4424944)

Have a great October.  See you next month.

This month we report:

CARGO THEFT DATA COLLECTION REPORTS – Public comments are being sought on a proposal by the FBI to extend the use of its cargo theft incident report. Under the current proposal, law enforcement agencies submit cargo theft data to the FBI in three ways: via an electronic Cargo Theft Incident Form spreadsheet; the Cargo Theft Technical Specifications; or the National Incident-Based Reporting System. The FBI is seeking comments on whether the proposed collection of information is necessary for its job performance. Electronic reporting is now being considered.  According to the notice “approximately 18,439 law enforcement agency respondents submit monthly for a total of 221,268 responses.  That is a lot of cargo theft incidents per month.

CARGO THEFT – Speaking of cargo theft, Freightwatch reports that cargo theft is down, but the value of the stolen cargo has increased. From April to June, the company recorded 166 incidents of cargo theft in the U.S., down from 221 for the previous quarter, with an average loss value per incident of $154,184, up from $112,467 in the previous quarter. Food and Beverages comprised one of every five stolen shipments. California remains the top state for cargo theft, with 40 percent of all reported thefts occurring in the Golden State. The rate represents a 91 percent increase compared to Q1 2016, and a 122 percent increase compared to the same quarter in 2015. Texas came in second with 19 percent of total reported thefts, followed by New Jersey (8 percent), Florida (7 percent) and Georgia (6 percent). Theft of full truckload remains the most prevalent method of cargo theft, accounting for 78 percent of all reported thefts. The report states that the most prevalent location for cargo thefts continues to be unsecured parking, identified in 82 percent of all incidents in which a location was declared.

DANGEROUS TRUCKING JOBS – U.S. Department of Labor bloggers have released data indicating that trucking is one of the most dangerous jobs around. One out of every six American workers killed on the job is a tractor-trailer truck driver.  In 2014 761 tractor-trailer truck drivers were killed while working,  Truck drivers have the highest number of nonfatal injuries and illnesses that require days off from work across all occupations (a total of 55,710 in 2014).

BILL OF LADING CHANGES – The National Motor Freight Traffic Association has just made substantial changes to the terms and conditions of the Uniform Straight Bill of Lading which became effective on August 13, 2016. The key changes directly affect claims against trucking companies for lost or damaged cargo. The changes include the following:

Section 1.(a) – changes the responsibility for cargo loss and damage from the “carrier or party in possession” of the cargo to the “carrier shown as transporting the property.”

Section 1.(b) – changes the burden of proof to require the shipper to prove the carrier or party in possession of the cargo was negligent rather than the carrier being required to prove that it was not negligent.

Section 1.(b) — adds “riots or strikes” to the list of carrier defenses to a cargo claim, and adds “or any related causes” in reference to the entire list of defenses.

Section 2. – eliminates the “reasonable dispatch” standard relating to delay claims against carriers, and simply says the carrier “will transport the shipment in the regular course of its providing transportation services.”

Section 3.(b) – changes the requirement that claims for failure to make delivery (i.e., claims for loss of cargo) must be filed “within nine months after a reasonable time for delivery has elapsed,” and substitutes a shorter time period of “not more than nine (9) months from the date of the bill of lading.”

Any motor carrier that is a member, and the list is long, now reaps the benefit of these changes.  Various organizations sought to prevent the implementation of the new changes by filing petitions with the STB to suspend the .changes. The STB declined to suspend the regulations but deferred a ruling requesting further investigation. So at this point the rules stand and the bill of lading has changed.  We suspect that non-members will start changing their form bills of lading to mirror this standard.

VAPES – Never thought I would be reporting on VAPE use in the Bits & Pieces.  This month the FMCSA issued a safety advisory for battery-powered portable electronic smoking devices in or around commercial vehicles. The FMCSA wants carriers and drivers to be aware of the potential safety hazards. Particularly, those transporting hazardous materials should be careful when possessing, storing, charging or using any of these devices while loading or unloading.

TOW OPERATIONS – The Colorado Public Utilities Commission has extended its protection of non-consensual tows to include heavy-duty trucks. The regulations will include a strong definition of “non-consensual tow,” reasonable maximum per hour wrecker/rotator fees, prohibited fuel surcharges, strengthened invoicing requirements, a reasonable standard for what is necessary in a tow/recovery, and a provision to address what is referred to as double-billing. Non-consensual tows include tows ordered by law enforcement are included even when the owner or operator of the vehicle consents to a law enforcement official ordering a tow.  Importantly the invoices will have to provide more specific information and will not allow for double billing.

The regulations call for specific information on the invoice, such as the time of dispatch, the time the truck leaves the yard or other staging location, the time the tow truck arrives on scene, the time tow truck leaves the scene, and the time the vehicle is unhooked.

In order to discourage overcharging, the commission retained language that says the towing carrier shall not charge or retain any fees or charges for the services it performs if it is found in violation of state statute or the commission’s rules. This would likely be applied only to the most serious of violations.

The regulations also guard against double-billing by not allowing additional fees for towing a tractor and trailer together.

RECALLS – The NHTSA has announced that another round of manufacturers are recalling trailers due to an issue with Bendix spring valves. More than 9,000 Manac, Polar Tank, Heil and Hyundai trailers are affected in this latest notice, according to National Highway Traffic Safety Administration documents.

On June 8, NHTSA sent out a recall notice regarding an issue with nearly 195,000 Bendix SR-5 trailer spring brake valves. According to NHTSA, brake valves were improperly machined without a radius on the internal check valve seat, causing a delay of application of the spring brakes while parking.

Bendix’s public relations firm reached out to Land Line via email on July 29, and offered their own description of the problem: “Under a combination of a unique set of circumstances, it is possible (though not probable) for an internal leakage to develop in the SR-5 unit, resulting in slow-to-apply spring brakes when parking the trailer.”

On Tuesday, Aug. 9, NHTSA sent out a recall notice with specific makes and models of trailers affected by the recall. Affected trailers include:

• 2016 Manac flatbed trailers
• 2017-2018 Manac van trailers
• 2014-2016 Polar Tank DOT 406 tank trailers
• 2014-2016 Polar Tank DOT 407 tank trailers
• 2014-2016 Polar Tank DOT 412 tank trailers
• 2014-2015 Polar Tank MC 331 tank trailers
• 2014-2016 Polar Tank non-code tank trailers
• 2014-2016 Heil crude trailers
• 2014-2016 Heil dry bulk trailers
• 2014-2016 Heil flatbed trailers
• 2014-2016 Heil petroleum pull trailers
• 2004-2016 Hyundai Translead chassis
• 2004-2016 Hyundai Translead containers
• 2004-2016 Hyundai Translead van reefer trailers
• 2004-2016 Hyundai Translead van trailers

The SR-5 valve is a reservoir-mounted trailer valve that can control four spring brake actuators during parking or emergency applications, a NHTSA safety recall report explains. A trailer will have an audible air leak from the dash mounted park control valve or red gladhand when it is disconnected, prior to decoupling when a slow-to-park situation occurs. This leakage will continue until the trailer reservoirs and spring brake chambers are depleted of air pressure.

For those interested the NHTSA recall number for the original Bendix equipment recall is 16E-045

CASES

 CARGO

As we see more and more transportation procured through truck brokers the cases are mounting on the many issues that plague this form of cargo transport. Different courts are ruling different ways, making it difficult to ascertain what the right course of action is. This month we saw a number of cases on the issue.  For example, the Middle District of Florida denied a motion to dismiss a claim against a transportation entity. The Court held that a Carmack claim would stand against the defendant as there was a reasonable basis to conclude that it held itself out as a carrier, while at the same time concluding that a negligence claim for failure to procure a good carrier would stand if the defendant was a broker.  (Edelbrock v. TT of Naples, Inc., 2016 WL 4157426).  Over in the Eastern District of Michigan the Court held that an insurer who paid a cargo claim on behalf of a broker had no standing to sue a carrier under the Carmack Amendment in the absence of an assignment from the shipper.  (Acuity Insurance Co. v. Nick’s Trucking & Excavating LLC, 2015 WL 4060975).  A similar result was reached in the same Court when the Court granted a motion to dismiss a complaint brought by the broker against the motor carrier, with the Court concluding that the broker lacked standing to sue under the Carmack Amendment.  (United Road Logistics, LLC v. DVM Car Trans, LLC, 2016 WL 4011264).The Southern District of Ohio granted a truck broker’s motion to remand a case against a trucker for a cargo loss to state court on the theory that the claim was under the broker-carrier contract and not the Carmack Amendment. (Total Quality Logistics v. James J. O’Malley, 2016 WL 4051880)

The Eastern District of Michigan denied a request for reconsideration of a prior order granting defendant a limitation of liability under tariff provisions.  The Court concluded that the new arguments which plaintiff made in the reconsideration motion could have been made in the initial motion, precluding them for being considered later.  (Kelly Aerospeace Therma Systems v. ABF Freight Systems, Inc. 2016 WL 4374917)

A trucking company attempted a third party action against a truck broker when the trucker was sued for a cargo loss in the Northern District of California. The Court granted the broker’s motion to dismiss, enforcing the forum selection clause in the broker/carrier contract and concluding that an equitable claim for contribution arose from the contract.  (Global Quality Foods, inc. v. Van Hoekelen Greenhouses, Inc. 2016 WL 429126)

A motor carrier sought to defeat indemnity obligations under a master service agreement based upon Texas’s Oilfield Anti-Indemnity Act. The Southern District in Texas concluded that the master service agreement expressly extended to the sole negligence of the parties and that the services provided by the motor carrier were not a close nexus to drilling or mining.  Finally the Court held that the motor carrier had not proved that the plaintiff’s settlement of the underlying action was unreasonable and that plaintiff established that there was no evidence that it was unreasonable, striking the defendant’s affirmative defenses.  (Catlin Specialty Ins. Co v. L.A. Contractors, Ltd., 2016 WL 4276131)

AUTO

The Eastern District of Kentucky held that evidence of negligent hiring, training, supervision, entrustment and retention would not be admissible when the trucking company had admitted vicarious liability for the actions of the driver.  While the rule in a Kentucky state would be to the contrary the Court held that such a conclusion would violate the federal rules of evidence.  (Martin v. Browning, 2016 WL 4119790)

The Court of Appeals in Texas upheld a jury verdict against a trucking company, concluding that the jury had ample support for imposition of liability not only for negligence but for gross negligence. The Court held that the plaintiff’s experts were credible and fully supported the verdict.  (Greenwood Motor Lines v. Bush, 2016 WL 4385456)

The Court of Appeals in Ohio held that a scheduled driver on a liability policy was not entitled to uninsured coverage when injured in an accident while operating a personal auto.  The Court held that there was no ambiguity in adding a schedule of drivers and that it did not make those drivers insured under the policy for all purposes. (Wetzel v. Auto-Owners Insurance Co., 2016 WL 4262814)

Summary judgment afforded to the insurer of a trailer being operated during an accident was upheld in the 7th Circuit. The Court held that it would not apply a hyper technical interpretation of endorsements addressing who was an insured under the policy. The Court further concluded that the trailer interchange agreement did cover the trailer involved it the accident and the trailer was not being used in the owner’s business.  Finally the Court held that the endorsement did not violate Wisconsin law because it excluded permissive users as the statute was not applicable to the policy which was not issued to a Wisconsin insured. The Court held that filing a certificate of insurance with the state DOT was not the same as delivering a policy in the state.  (Great West Casualty Co. v. Robbins, 2016 WL 43667690

Discovery disputes can turn ugly for some.  The Appellate Division in New York held that FOIA information obtained by counsel was not subject to attorney work product privilege and that imposition of sanctions for destroying electronic records would be appropriate. Sanctions would be limited to a negative inference regarding the lack of records.  (Cioffi v. SM Foods, Inc., 2016 WL 4199347)

A trucking company lost its effort for summary judgement in the Northern District of Alabama when there was limited evidence that one of its trucks forced plaintiff’s motorcycle off the road.  The Court held that there was enough evidence through witness testimony to at least support a question of fact on a negligence claim but not a wantonness claim  (Howze v Western Express, 2016 WL 4180898)

A trucking company lost its efforts to exclude the expert testimony of Brook Rugemer on the topic of the screening policies for hiring contract drivers.  The Court concluded that the expert was qualified to discuss whether the motor carrier failed to properly screen the driver, who was involved in a fatal accident while operating under the influence of alcohol.  (Ramos-Becerra v. Hatfield, 2016 WL 4127387)

A cause of action against a trucker for negligent failure to maintain or properly equip the vehicle was dismissed, along with any claim for wantonness.   However the Middle District in Alabama concluded that a claim for negligent entrustment would continue.  (Trinidad v. Moore, 2016 U.S. Dist. LEXIS 106099)

The Court of Appeals in Indiana upheld a jury verdict of $32 million against a driver and trucking company concluding that it would not substitute its analysis for that of the jury. The accident arose when the truck jack knifed and was lying of the side of the road and was struck an hour later by the plaintiff. The Court held, among other things, that not bifurcating liability and damages was not prejudicial and admitting post remedial measures of the trucking company was not an error. (JB Hunt v. Zak, 2016 Ind. App. LEXIS  300)

Over in the 10th Circuit the Court upheld a verdict in favor of a driver’s accident with a company vehicle, concluding that the evidence supported such a finding. The Court also denied an award of costs for rejection of a settlement demand. The Court held that counsel’s letter that he had authority to make a settlement demand was not the same thing as actually making one, therefore it was not rejected as required under the statute.  (Xiong v. Knight Transportation, 2016 US App LEXIS  13648)

Roadside Inspections.  One trucker argued in the Eastern District of Missouri that roadside inspections were unconstitutional. The Court concluded otherwise finding that there is a substantial governmental interest in regulating trucking and that warrantless inspections facilitate the regulation intent.  (Calzona v. Koster, 2016 WL 4036898)

Notice Prejudice Rule – The Supreme Court of Wyoming had held that  under its state law an insurer must be prejudiced before being entitled to deny coverage for failure to give notice as soon as practicable.  A trucker had been declined coverage by his umbrella insurer because the insurer was not notified of a loss.  (Century Surety Company v. Jim Hipner, 2016 WL 4399921)