Hello and Happy Fall,

With the cold weather, the upcoming year-end, and project warp-ups, we certainly are in Q4. Hopefully you get some time to enjoy the fall colors before the leaves are just for the raking!

CAB has been out and about at various events this season. It has been great seeing many of you at conferences.

Thank you so much for your continued support.

Talk to you soon,  

Chad Krueger and Pam Jones 

CAB Live Training Sessions

Tuesday, November 14^th | 12p EST – VITAL/VITAL+

Tuesday, November 21^st | 12p EST – MC Safety

To register for the webinars, sign into your CAB account. Then click live training at the top of the page to access the webinar registration.

Explore all of our previously recorded live webinar sessions in our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks: Motor Carrier Data Updates

In case you have not spent much time on VIN details, know that within the CAB Report, you can see inspection activity by unit beyond the individual fleet you are looking at. The Inspections / Accidents tab on the report shows inspection details down to the individual unit level.

Scrolling down to the Vehicles section allows you to dig into this data. Notice on the right by unit, our system shares if the VIN has been inspected before, after, or during the timeline of this fleet’s inspections with a different fleet.

THIS MONTH WE REPORT

Trucking’s Annual Congestion Costs Top $94.6 Billion. Traffic congestion on U.S. highways added $94.6 billion in costs to the trucking industry in 2021 according to the latest Cost of Congestion study published by the American Transportation Research Institute (ATRI). Read more…

Trucker out-of-service orders hit all-time high. New-entrant out-of-service (OOS) orders issued to carriers will surge to an all-time high in 2023, according to the latest government data, a trend that has mirrored the dramatic increase in new-carrier operating authorities issued since 2020. Read more…

More carriers likely to fail in muted fall freight season says ATA’s Chief Economist Bob Costello. American Trucking Associations Chief Economist shares his economic outlook at the 2023 Management Conference & Exhibition in Austin.The bankruptcies will be “other people’s pain for our gain.” Read more…

US House Panel Evaluates New Truck Excise Tax Repeal. “Not only will repealing this federal excise tax deliver upfront cost savings for truckers and small businesses, but it will also provide downstream supply chain and cost-saving benefits for consumers,” Rep. Chris Pappas (D-N.H.), a co-sponsor, said recently. Read more…

FMCSA extends comment period for carrier safety rating system revamp. Owner-operators and others in trucking are getting more time to comment on the FMCSA’s information-seeking advance notice of proposed rulemaking related to a potential revamp of its carrier rating system. Read more…

Convoy cancels all shipments, load board is empty, announcement upcoming. A change is brewing in the next day or two at Seattle-based digital brokerage Convoy, with reports Wednesday of all loads being canceled–the company is “taking several necessary steps to prepare Convoy’s business for a transition that we will have more details.” Read more…

November 2023 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Flores v. Allen Henderschiedt Trucking, Inc., 2023 U.S. Dist. LEXIS 182600 (S.D. Tex. Oct. 11, 2023). In this personal injury action, the defendant motor carrier and its driver moved the court to exclude the following: evidence of a previous and unrelated speeding citation, evidence of claims for negligent entrustment and/or gross negligence, evidence related to the Federal Motor Carrier Safety Act (FMCSA). The motor carrier and driver also sought the prohibition of two medical billing affidavits. The court was unwilling to issue a blanket order precluding the introduction of evidence regarding the driver’s unrelated speeding citation and reference to the FMCSA. Next, the court allowed plaintiff to move forward with gross negligence and negligent entrustment claims, stating that at the appropriate time the court will decide whether to instruct the jury accordingly. Finally, the court declined to decide on the affidavits in question and instead reserved its decision after the parties fully advance their positions at trial.

Prodigies Child Care Mgmt. v. Cotton, 2023 WL 6611014, No. S22G0914 (Ga. Oct. 11, 2023). In this appeal of a ruling granting summary judgment in a personal injury action filed by an injured truck driver, the Georgia Supreme Court vacated the Court of Appeals’ application of the “special circumstances exception” to the general rule that employees do not act in furtherance of an employer’s business during a lunch break commute. The court remanded the matter for the lower court to apply the proper respondeat superior test. The injured truck driver filed a lawsuit against a childcare facility and its employee after the employee collided with the truck driver during the employee’s lunch break commute back to work. The evidence showed that, at the time of the collision, the employee was looking at her phone and attempting to contact the childcare facility to notify it that she would be late in her return from lunch. The truck driver alleged that the childcare employee was acting in furtherance of the childcare facility’s business at the time of the accident and that the facility was, therefore, liable under a theory of respondeat superior. The trial court granted the childcare facility’s motion for summary judgment, finding that the employee was not acting in furtherance of the facility’s business at the time of the accident. The truck driver appealed, and a divided panel of the Court of Appeals found that there was sufficient evidence to raise a question of fact under the “special circumstances exception” to the general rule that an employee does not act in furtherance of an employer’s business during a lunch break commute. This “special circumstances exception” had been applied by the Court of Appeals in prior decisions where an employee was on the phone for business-related calls at the time of an accident. Relying on the exception, the Court of Appeals reversed the trial court’s grant of summary judgment. The Supreme Court reversed, clarifying that “the so-called ‘special circumstances exception’ is merely an application of the doctrine of respondeat superior—not a separate doctrine or an ‘exception’ to respondeat superior” and disapproving the language relied upon in the prior Court of Appeals’ rulings. The court concluded that the question of whether respondeat superior attached instead depended upon whether the employee was acting in furtherance of her employer’s business and within the course and scope of her employment at the time of the tortious act, regardless of the timing of a commute during a lunch break or so-called “special circumstances” giving rise to an exception. While recognizing that the general rule that an employee’s travel to or from work is generally not within the scope of employment for respondeat superior, the court determined that it was still necessary to determine whether the employee did something else at the time of the accident that was allegedly within the scope of employment. Regardless, the court held “that there is no need—and it is not proper—to apply a separate test to determine whether the acts in question are so-called ‘special circumstances.’ The proper test is the traditional respondeat superior test: whether the employee was acting in furtherance of her employer’s business and within the scope of her employment at the time she committed the tortious act.”

Handley v. Werner Enters. Inc., 2023 WL 6628921, No. 23-10587 (11th Cir. Oct. 11, 2023). In this tort action, Handley sued Werner and ACE American Insurance Company following Handley’s collision with a Werner tractor trailer. A jury returned a verdict in Handley’s favor, and Werner moved for Judgment as a Matter of Law and for a New Trial. The district court denied these motions, and the Eleventh Circuit affirmed on appeal. In affirming the lower court’s denial of the Judgment as a Matter of Law, the panel conceded that there was conflicting evidence regarding the accident. However, it concluded that, viewing the evidence in the light most favorable to Handley, there was sufficient evidence to support the jury’s conclusion that Werner and its driver were negligent. The court also found that Werner had failed to meet its burden to assert an argument under the avoidable consequences affirmative defense because it never stated or proved the elements of the defense. Finally, in affirming the lower court’s denial of Werner’s motion for a new trial, the court found that Werner’s argument that ACE was inadvertently included on the verdict form caption did not necessitate a new trial and, furthermore, that the jury had been properly instructed to not consider insurance during its deliberations.

Brooks v. AK Creation, LLC, 2023 WL 6406367, No. 3:22-cv-103 (M.D. Ga. Oct. 2, 2023). In this negligence action following a collision, the court granted summary judgment in favor of a motor carrier, AK, as to the plaintiff’s claim for punitive damages. The plaintiff, Brooks, was involved in a collision with AK’s driver, after the driver ran a red light due to defective brakes on the tractor trailer. Brooks suffered injuries, and he and his wife asserted claims for negligence and loss of consortium, respectively, against the driver and AK. Prior to the wreck, the evidence showed that the driver complained of the tractor trailer’s brakes two or three times to an associate of AK. However, the vehicle was inspected and passed a report. The wreck with Brooks occurred three days later. Following the collision, the Georgia Department of Public Safety determined four of the brakes on the tractor trailer were inoperative. Thus, on this finding, the plaintiffs asserted a claim for punitive damages against AK. In granting AK’s motion for summary judgment as to the punitive damages claim, the court found that there was no evidence that AK personally learned of any defect with the brakes in the three days between the inspection and the accident or had any reason to doubt the veracity of the inspection report. Thus, the court found the record was void of any evidence to support an award of punitive damages and, accordingly, granted summary judgment as to that claim.

Villagran v. Freightbull, Inc., 2023 WL 6690700, No. 22-2159 (E.D. Pa. Oct. 12, 2023). Following a fatal trucking accident, the plaintiff, as administrator of the decedent’s estate, filed a lawsuit asserting claims for direct and vicarious liability against the trucking company and its driver. Following the close of discovery, the trucking company moved for summary judgment as to punitive damages and moved to dismiss the direct claims asserted against it. The accident involved the tractor trailer pulling out into a highway at night, stopping briefly, and engaging its left turn signal before crossing two lanes of travel. Before the truck could complete its turn, the plaintiff’s decedent crashed into the side of the trailer. The decedent’s widow alleged negligent entrustment, supervision, hiring, and retention, and specifically alleged that the motor carrier failed to properly train or supervise its driver as a basis for asserting a claim for punitive damages. In analyzing the punitive damages claim, the court found that, as to the driver, a video of the truck pulling into the roadway supported a possible argument that he misjudged the proximity of the decedent’s vehicle but that it showed nothing which warranted an award of punitive damages. As to the company, the court found that the allegations of the plaintiff pointing to the company’s safety officer’s lack of education, the lack of a CDL on the part of the officer, and the officer having only three years of trucking safety experience were not enough to demonstrate egregious conduct warranting an award of punitive damages. Moreover, the court found that the lack of training for the driver as to trip planning also did not amount to egregious conduct. Finally, the court found that the fact that the company did not investigate its own accidents also did not amount to conduct justifying punitive damages. As to the direct claims against the trucking company, the court declined to find that there was a blanket rule justifying dismissal of such claims given the lack of punitive damages. However, it instead analyzed the claims under a Rule 403 balancing test and found that dismissal of the direct liability claims was indeed warranted. The court held that “[t]he criticism leveled at [the company’s] in-house training program seems peripheral, and the charges that it failed to train drivers on pre-trip planning or conduct accident investigations are wholly unrelated to the accident in this case.” The court went on to find that “the previous record of its driver reflects at most two minor collisions resulting in property damage, with only seven citations in 17 years of professional driving.” “The probative value of this evidence is minimal, as compared to the prejudice that follows from allowing the jury to consider evidence that would otherwise be excluded as irrelevant and prejudicial.” Thus, the court dismissed the Plaintiff’s claims for negligent and reckless hiring, training, supervision, and entrustment against the company.

Perez v. U.S. Xpress, Inc., 2023 WL 6393899, No. 23-50146 (W.D. Tx. Oct. 2, 2023). In this parking lot truck bump up personal injury action, the Fifth Circuit affirmed the district court’s grant of summary judgment to the defendant motor carrier and its driver. The plaintiff, Perez, alleged that he was asleep in the top bunk of his truck at the time the defendant driver bumped into his parked truck in a parking lot. Perez then alleged that he woke up, got scared, and jumped from the bunk, injuring himself. Perez then filed suit, alleging various negligence theories against the defendant company and driver. The defendants moved for summary judgment, and the district court granted it, finding a lack of proximate cause between the collision and the plaintiff’s injuries. In affirming the grant of summary judgment, the Fifth Circuit panel noted that, under Texas law, “cause in fact is not established where the defendant’s negligence does no more than furnish a condition which makes the injuries possible.” The court concluded that, while the plaintiff had allegedly injured his back when he jumped from the top bunk, he did so after the impact from the defendant’s truck and that his decision to jump was a deliberate one that he made on his own. Thus, finding no genuine dispute of material fact as to causation, the court affirmed the grant of summary judgment.

BROKER

Heselton v. Espinoza, 2023 WL 7003467, No. 21-cv-1592 (S.D. Ill. Oct. 24, 2023). In this negligence action filed by plaintiffs Stacey and LaNette Heselton against driver Pedro Espinoza; his employer, Roline Express; and Flock Freight, the broker of the subject load transported by Espinoza, the court granted the plaintiffs’ motion to dismiss without prejudice. Plaintiffs filed their suit following an accident between Stacey Heselton and Espinoza in Effingham, Illinois. Plaintiffs asserted theories of negligence against Espinoza and for vicarious liability and negligent hiring against Roline and Flock. Following extensive discovery, the plaintiffs moved to dismiss without prejudice under Rule 41(a)(2), seeking to instead litigate the case in California where they had already filed a second lawsuit against the Defendants. The Defendants opposed the motion on the grounds that the parties had conducted extensive discovery and had expended a significant amount of resources litigating the case. Furthermore, the Defendants relied upon the pendency of Flock’s motion to dismiss based on FAAAA preemption in opposing the plaintiffs’ motion to dismiss while also asserting that the Plaintiffs were forum shopping. Flock argued that the Plaintiffs were attempting to avoid the pending motion to dismiss and the Seventh Circuit’s recent decision in Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453 (7th Cir. 2023) (finding that plaintiffs’ claims were barred by FAAAA preemption) as opposed to the Ninth Circuit’s ruling in Miller v. C.H. Robinson, 976 F.3d 1016 (9th Cir. 2020) (allowing such claims against a broker under the FAAAA’s safety exception to preemption).  The Defendants argued this demonstrated an intent on the part of the plaintiffs to seek a more favorable outcome in California. The plaintiffs represented to the court that California was the more convenient and appropriate venue given that the Defendants were located in California and given the presence of witnesses to the case in California. In analyzing the arguments, the court found that the relevant factors weighed in favor of voluntary dismissal in favor of the plaintiffs because that the case was still in the discovery stage and trial was not set until March 2024. The court also found that the Defendants would not be subjected to “plain legal prejudice” by the dismissal of the action and that, even though the matter had been pending since December 2021, the record did not support a finding of excessive delay or a lack of diligence on the part of the plaintiffs. Finally, the court held that it was not clear that the plaintiffs were engaged in forum shopping but that they were instead pursuing their claims in two jurisdictions.

CARGO

Aeronet Worldwide, Inc. v. AB&M Interstate Servs., Inc., 2023 U.S. Dist. LEXIS 181617, No. 6:22-cv-01081 (N.D. N.Y. Oct. 10, 2023). In this cargo claim, the plaintiff, Aeronet, alleged that defendants AB&M Interstate Services, AB&M Logistics, and Mobi Express were all agents of each other. Aeronet alleged that it had arranged for the defendants to transport two pallets of automobile part assembly kits, which the defendants received but never delivered as required under an agreement between the parties. Aeronet alleged that, by agreeing to transport the cargo and by having received the cargo, the defendants were acting as motor carriers and were carriers within the meaning of the Carmack Amendment. Following Mobi’s failure to answer or otherwise plead, Aeronet moved for entry of a default judgment. While finding that Aeronet had met the procedural requirements for entry of a default judgment, the court held that Aeronet’s state law claims were preempted under the Carmack Amendment. In analyzing Aeronet’s Carmack claim, the court held that Aeronet’s allegations lacked requisite specificity as to the relationships between it and the defendants as well as that of Mobi to the other defendants. Ultimately, the court found that Aeronet failed to plausibly allege a relationship between Defendants and instead merely relied on conclusory allegations in its complaint. The court found that Aeronet must offer the defendant fair notice of what its claim was and the grounds upon which it rested so that Mobi could answer and prepare for trial. The court found that Aeronet failed to meet this requirement because it did not supply any documentary evidence or allege any particularized facts as to the relationship of the parties or their assent to the contract. Moreover, the court observed that the other AB&M defendants had denied Aeronet’s allegations and asserted crossclaims of their own against Mobi. Finding that Mobi could potentially share in these defenses, the court declined to enter a default judgment against Mobi but left open the possibility that Aeronet could refile its motion at a later time.

Shemes v. U.S. Moving Serv. LLC, 2023 U.S. Dist. LEXIS 176910, No. 2:23-cv-02084 (D. Kan. Oct. 2, 2023). In this case involving alleged damages to household goods during an interstate move, the court denied the defendants’ motion to transfer the matter to another forum, denied a motion to dismiss under Carmack preemption as to one defendant, but granted the motion as to the other defendant. The plaintiffs sued US Moving and USA Logistics under state contract, tort, and consumer protection causes of action. The plaintiffs contracted with US Moving to arrange for the transportation of their property, and US Moving subsequently arranged for USA Logistics to transport the property. Following several payments made to US Moving and USA Logistics and the alleged delay of the delivery, the plaintiffs allegedly discovered, upon the delivery of the property, that $330,000 worth of it had been damaged or lost. Following the plaintiffs’ suit, the defendants moved to transfer the matter to California, citing a forum-selection clause in the bill of lading issued by USA Logistics to the plaintiffs. The court rejected this argument, finding that the forum selection clause did not mention US Moving and that USA Logistics had failed to sever the claims asserted against it from those asserted against US Moving. Moreover, the court found that the forum selection clause failed to cite to a federal court in California to which the matter should have been litigated and that it, thus, failed to comply with the requirements of 28 U.S.C. § 1404(a). Regarding the Motion to Dismiss under Carmack preemption, the court found that the complaint did not operatively show that U.S. Moving was a carrier and that, given its role as only the apparent broker to the action, Carmack preemption could not be held to apply. However, the court found that USA Logistics was a carrier and that any claims asserted against it for the damage to the property were indeed within the scope of Carmack preemption. The court, thus, dismissed the state law claims against USA Logistics, despite the plaintiffs’ argument that the bill of lading issued by USA Logistics was secured fraudulently and under duress. However, the court did allow the plaintiffs leave to file an amended complaint to assert a Carmack claim against either or both of the defendants.

Schneider Nat’l Carriers, Inc. v. Kaba & Sons, LLC, 2023 WL 6929334, No. 4:23-cv-00792 (M.D. Pa. Oct. 19, 2023). In this action following the total loss of goods after a trailer caught fire, the court granted a default judgment for Schneider National Carriers (SNC) after Kaba, the motor carrier, failed to answer or otherwise plead. Schneider and Kaba were parties to an agreement where Kaba was to provide transportation services for SNC and its customers. SNC tendered a shipment of certain goods to Kaba. However, Kaba failed to inspect the trailer before transporting the load. Two of the tires on the trailer were “low and bald,” and an accident occurred, causing the trailer and its contents to catch fire. Following payment to its customer for the loss of the cargo, SNC filed this action against Kaba seeking indemnification under the parties’ contract for the value of the cargo, as well as a claim under the Carmack Amendment. Following Kaba’s failure to answer or otherwise appear, SNC moved for a default judgment. The court found that SNC’s contract claim was preempted under federal law but that it had properly alleged its Carmack claim. The court also found that SNC had properly pled breach of contract for the damage to its trailer given Kaba’s failure to inspect it prior to transport. Ultimately, the court awarded damages to SNC for the value of the cargo and the value of its trailer.

COVERAGE

Prime Ins. Co. v. Wright, 57 F.4th 597 (7th Cir. 2023) (cert. denied Oct. 2, 2023). The U.S. Supreme Court declined to review the Seventh Circuit’s decision in this insurance coverage dispute, which was previously reported in the January 2023 edition of CAB Case Summaries. Thus, the Seventh Circuit’s ruling that the MCS 90 endorsement required the insurer to satisfy a default judgment entered against the motor carrier will stand.

Stein v. Farmers Ins. Co. of Ariz., 2023 U.S. App. LEXIS 28053, Nos. 22-55356 & 22-55414 (9th Cir. Oct. 23, 2023). In this bad faith action, the Ninth Circuit affirmed a jury verdict finding that the insurer engaged in bad faith, breached its contract, and violated New Mexico’s Unfair Insurance Practices Act in handling the claimant’s personal injury claim. The court found that the evidence supported the premise that the insurer engaged in unfounded delay, having not investigated the claimant’s injuries for five months after the accident, having failed to conduct an independent medical examination regarding the claimant’s injuries, and having rendered a coverage position despite its failure to adequately investigate. Thus, the court found that the evidence supported the jury’s finding that the insurer’s two-year long investigation constituted unfounded delay and supported a finding of bad faith. The court also found that the jury was reasonable in concluding that the insurer’s actions amounted to a violation of the Unfair Insurance Practices Act in handling the claims. Thus, the Court declined to overrule the district court’s denial of the insurer’s Rule 60 motion to alter the judgment and also affirmed the lower court’s ruling regarding its post judgment interest calculation.

CSX Transp., Inc. v. General Mills, Inc., 82 F.4th 1315 (11th Cir. 2023). In this matter originally arising from an injured General Mills’ employees’ negligence action against CSX, the Eleventh Circuit affirmed and reversed in part the district court. The employee sued CSX alleging negligence after several railcars ran over and severed his leg on a sidetrack. Following its settlement with the worker, CSX sued General Mills for breach of contract or, alternatively, under a theory that General Mills was jointly liable and required to indemnify it for the damages paid to the worker pursuant to a “Sidetrack Agreement” between the parties. The Agreement specified that General Mills would have the option to conduct its own switching (i.e., moving) of railcars. The court granted General Mills’ motion to dismiss the breach of contract claim and its motion for summary judgment on the other claim. The 11th Circuit panel partly reversed and partly affirmed the district court rulings against CSX, finding that, while the Sidetrack Agreement did not require General Mills to indemnify CSX if General Mills was not at all at fault, CSX could bring evidence to show that General Mills was partially responsible for its employee’s injuries. In so holding as to the latter claim, the court found that Georgia’s “vouchment” statute was central to its analysis. While General Mills argued that the statute bound CSX, under the doctrine of res judicata, to previous judgments in the underlying injury suit, CSX argued that it only bound General Mills. The court found that it was undisputed that CSX vouched General Mills into the underlying suit, that previous state Supreme Court rulings on the vouchment statute had only considered whether the vouchee was bound by it, not the voucher, as it is typically the voucher that seeks to bind the other party, and that this was an unusual case in that the vouchee is seeking to bind the voucher. Ultimately, the court agreed with CSX that the lower court had erred in misinterpreting the statute. “In other words, by design, vouchment empowers the voucher, not the vouchee.” “General Mills’s concern that vouchment, if it only binds the vouchee, tends to work against vouchees is simply a feature of the doctrine.” However, the court affirmed the district court’s dismissal of CSX’s first count for breach of contract, in which CSX had argued that its agreement with General Mills required the food company to indemnify the railroad for any injury, even if General Mills had no fault. The court found that the agreement did not “expressly, plainly, clearly, and unequivocally” provide for such indemnification as would be required under Georgia law.

SYNY Logistics, Inc. v. Great Lakes Ins. SE, 2023 WL 6388233, No. 22-cv-764 (N.D. Ill. Sept. 30, 2023). In this declaratory judgment action arising from first-party physical damage coverage, the court granted the insurer’s motion for summary judgment, finding that a trucking company’s driver did not have the experience required under the insurer’s policy to warrant coverage. SYNY, a motor carrier, had a driver who was involved in an accident. SYNY filed a claim with its insurer, Great Lakes. Under the policy, Great Lakes did not have to “indemnify [SYNY] for loss or damage to any Automobile … unless the Automobile is operated by … a driver who at inception of this Policy or at the date of hire, whichever is the later, provides documented evidence of an MRV no older than three months showing that they: … a) a minimum of two (2) years continuous driving experience, within thirty-six (36) months of the policy inception date or date of hire, whichever is the later, driving equipment similar to or driving trucks transporting cargo similar to that insured under this Policy; OR b) a minimum of (1) years continuous driving experience, within twenty-four (24) months of the policy inception date or date of hire, whichever is the later, driving equipment similar to or driving trucks transporting cargo similar to that insured under this Policy providing there are no violations and no at fault accidents.” Under this language, and specifically the minimum 1-year requirement under b), Great Lakes denied coverage because SYNY’s driver did not have the requisite one year of experience. The court agreed, finding that the driver had only 354 days of experience prior to the accident. Despite the driver being only 9 days short of the requisite experience and despite SYNY’s argument that the driver had obtained his license within the 24-month window provided by the policy, the court found there was no genuine dispute of material fact that the driver needed to have one year of experience at the time of an incident for the indemnity obligation to be effective. Thus, the court granted summary judgment in favor of Great Lakes while also dismissing SYNY’s claims for breach of contract and under Ill. Comp. Stat. 5/155(1)(b).

WORKERS COMPENSATION

No cases of note to report. 

Hello Everyone and Welcome to Fall! 

It’s been very busy here at CAB, like many of you are also experiencing. As we move into Q4, we continue to focus on platform enhancements on both the insurance and motor carrier programs. We are always open to suggestions and requests. Share those with your CAB representative for consideration.  

Convention season is in full swing. Visit us at the following events: 

• October 3 – 6^th, Motor Carrier Insurance Education Foundation Annual Conference
• October 11^th, National Employers of Traffic Safety Annual Conference
• October 14 – 17^th, America’s Trucking Associations’ Management Conference and Exposition
• October 31^st – November 2^nd, InsureTech Connect

Look forward to seeing you soon! Thank you.  

Chad Krueger and Pam Jones 

CAB Live Training Sessions

Tuesday, October 10^th | 12p EST – Chameleon Carriers and Interrelated Entities with Pam Jones

Tuesday, October 17^th | 12p EST – Intro to CAB: Flow and Navigation with Sean Gardner

To register for the webinars, sign into your CAB account. Then click live training at the top of the page to access the webinar registration.

Explore all of our previously recorded live webinar sessions in our webinar library.

Follow us on the CAB LinkedIn page and Facebook.

CAB’s Tips & Tricks: Motor Carrier Data Updates

It’s common for fleets to change their cargo types or even need to update a company contact entry like a phone number, address, email, company rep, etc. Unfortunately, CAB is unable to fulfill these requests. These types of changes need to be done by the motor carrier through an MCS-150 update.  

While FMCSA requires a 2-year update, the fleet can revise more frequently. The fleet representative(s) are the only authorized parties to make the changes with their unique FMCSA issued PIN.  

• Click here for the link to make the various update options. 
• If a motor carrier is missing or needs to change their FMCSA issued PIN, they can request their current or a new PIN be released to them at this site. 

Fleets sometimes notice inspections or crash data are incorrect. These change requests also need to be submitted to FMCSA. FMCSA’s means for carrier correction requests are through the DataQs system. CAB utilizes the raw data from the Agency to populate our platform. We receive corrections from the Agency’s updated data once the DataQs requests are approved. The DataQs process is for the applicable state reps to review a request within 10 days. Then FMCSA releases any corrected raw data one to two times per month. CAB obtains this data and reflects the changes upon our next data extraction.  

FMCSA is currently looking for public comment on the potential change of the DataQs process. The industry has asked for years for a federal review of a data reconsideration review when the state denies a request. You can get your opinions heard by FMCSA. The comment period is open until 11/12/2023. Click here for more details.   

THIS MONTH WE REPORT

FMCSA mulls ‘proficiency exams’ for new carriers: A rulemaking that has been dormant since 2009 is back on the Federal Motor Carrier Safety Administration’s radar. FMCSA is considering whether to implement a proficiency examination as part of its revised New Entrant Safety Assurance Process, as well as other alternatives. Read more…

68 mph? FMCSA backtracks after ‘inaccurate’ reveal of speed-limiter intentions: FMCSA said the 68 mph speed limit originally included in the report is one of the options being considered for the supplemental notice of proposed rulemaking that the agency is planning to publish before the end of the year, but noted that no decision has been made on the maximum speed limit that will be proposed. Read more…

FMCSA told to make all carrier complaint data public: A report published on Tuesday by the U.S. Government Accountability Office concluded that FMCSA does not make all categories of complaint data publicly available — contrary to U.S. Department of Transportation policy. Read more…

Pilot program explores potential of mileage-based user fees: “Looking for dollars to support our nation’s infrastructure is not an easy task, and no stone should be left unturned,” David Heller of the TCA said. “However, any mechanism, including an MBUF, needs to be fully vetted to determine whether it is a viable option to consider in the future.” Read more…

Will there be a diesel fuel shortage in 2023? A lack of the preferred heavy crude means refineries are working harder and processing more volume, but with less yield. Read more…

October 2023 CAB Case Summaries
These case summaries are prepared by Robert “Rocky” C. Rogers, a Partner at Moseley Marcinack Law Group LLP.

AUTO

Rogers v. Tarbox, 2023 U.S. Dist. LEXIS 171631, C.A. No. 2:22-cv-00499 (S.D.W.V. Sep. 26, 2023). A motor carrier and its driver were granted partial summary judgment, successfully getting a claim for punitive damages dismissed.  The court found that the alleged conduct supported by the record did not rise to the level of egregious conduct required to support punitive damages under established West Virginia law. The court found there was no evidence of intoxication or impairment and no evidence of speeding. The mere fact that the tractor-trailer was on a road “not suitable for large trucks” was not, standing alone, sufficient to support submitting the issue of punitive damages to the jury. 

Wilson v. Associated Petro. Carriers, Inc., 2023 U.S. Dist. LEXIS 165649, C.A. No. 1:21-cv-00158 (W.D.N.C. Sep. 18, 2023). The court granted defendants’ partial motion for summary judgment dismissed causes of action for gross negligence and punitive damages with prejudice. The crash occurred in a construction zone on I-26 West in Asheville, North Carolina. The CMV driver stated he was aware of the construction project as it had been ongoing for a few months, was unable to stop and caused the collision. The speed limit at the crash location was 55 mph; the driver stated that he was driving 60 mph and that the cars in front of him were six to seven seconds ahead of him. The driver testified that he was on a phone call shortly before the crash occurred; this call was confirmed by his cell phone records. He also testified that he would use one earbud in one ear to talk on the phone while he was driving and did so on the day of the collision. The court, citing the North Carolina Supreme Court’s distinction between ordinary negligence and gross negligence, held gross negligence is confined to circumstances where at least one of three rather dynamic factors is present: (1) defendant is intoxicated; (2) defendant is driving at excessive speeds; or (3) defendant is engaged in a racing competition. Accordingly, the court held there was insufficient proof to support a gross negligence cause of action and dismissed that claim. The court rejected that driving 5mph above the posted speed limit in a construction zone “is not even close to driving at an ‘excessive speed.’” The mere transportation of hazardous materials likewise was not determinative because while posing unique risks, there was no forecasted evidence to suggest the hazardous materials were not properly secured, spilled, or contributed to the collision. Further, even assuming arguendo that the driver was on the cell phone and was distracted, the court held this was not akin to the “intentional wrongdoing” required to support gross negligence. The court then turned to the claim for punitive damages, which is an even stricter standard than for gross negligence, requiring “egregiously wrongful acts” meaning the plaintiff is required to prove by clear and convincing evidence  (1) fraud; (2) malice; or (3) willful or wanton conduct—defined as the “conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.” Because willful and wanton conduct is “more” than gross negligence, for the reasons the gross negligence claim failed, so did the punitive damages claim and dismissal with prejudice of this claim was ordered. 

Sullivan v. Carden, 2023 Tenn. App. LEXIS 378, C.A. No. E2022-01234-COA-R3-CV (Tenn. Ct. App. Sep. 14, 2023).  The Tennessee Court of Appeals reversed the trial court’s grant of summary judgment to a trucking company, finding the trucking company was not entitled to summary judgment when an accident victim claimed that he suffered injuries in a car accident that was caused by the negligence of the trucking company due to the trucking company’s failure to remove excessive mud from the company’s trucks that entered a rural road from a logging site that fell from the trucks onto the rural road and subsequently caused the victim to suffer injuries in the accident when the victim’s car slid on the frozen mud when he drove on the road because of the existence of genuine issues of material fact as to how much mud was spilled and deposited onto the rural road, whether the mud froze, whether the trucking company spilled the mud, and the foreseeability of the risk of injury.

Preston v. Grimes, 2023 U.S. App. LEXIS 24117, 2023 WL 5927166, C.A. No. 21-2149 (4th Cir. Sep. 12, 2023). On appeal, the Fourth Circuit affirmed the jury’s verdict finding the tort plaintiff contributorily negligent under Virginia law and, thus, barring recovery in an action arising out of a passenger auto versus CMV accident. Specifically, the court held the evidence of the record established: the plaintiff conceded that she negligently failed to keep a proper lookout before entering the intersection; and witnesses situated similarly to the plaintiff testified that they saw the tractor-trailer and realized that it would run the red traffic light due to its proximity to the intersection and high speed. The record, therefore, contains adequate evidence to support a finding that the plaintiff’s negligence contributed to the collision. Furthermore, the court rejected the plaintiff’s contention that she was entitled to assume that the tractor-trailer would obey the red traffic signal. As such, sufficient evidence existed to support the jury verdict in favor of the motor carrier and CMV driver, and the judgment was affirmed. 

BROKER

Cornejo v. Dakota Lines, Inc., 2023 Ill. App. LEXIS 343, C.A. No. 1:22-cv-0633 (Ill. Ct. App. Sep. 27, 2023). The Appellate Court of Illinois reversed the trial court’s finding that a motor carrier was an agent of a freight broker. The tort plaintiff was severely injured in an accident with a CMV operated by Lewis, who was, at the time, an agent/employee of Dakota Lines, a motor carrier. Alliance Shippers had brokered the load Lewis was transporting at the time of the Accident to Dakota. Tort plaintiff brought a personal injury lawsuit against Lewis, Dakota, and Alliance.  Following the trial, the jury answered a special interrogatory finding that Dakota was Alliance’s agent at the time of the Accident, and, accordingly, Lewis, Dakota, and Alliance were liable to tort plaintiff in excess of $18,000,000. Alliance appealed, contending that Dakota was an independent contractor and neither Lewis nor Dakota were agents of Alliance. The facts, as established at trial, included that, at the time of the Accident, Lewis was operating the tractor under the motor carrier operating authority of Dakota and towing an empty shipping container owned by J.B. Hunt.  Alliance, as part of an interchange agreement with J.B. Hunt, agreed to use only J.B. Hunt trailers for transporting goods at an agreed upon rate. Alliance did not own any tractors or trailers. Alliance would notify Dakota, via electronic data interchange (EDI), that a shipment of parts was ready for transport. A driver employed by Dakota would travel to a railyard in Illinois to retrieve an empty container owned by J.B. Hunt, but if no J.B. Hunt trailer was available, Dakota was to source another trailer at Dakota’s expense. The driver would then transport the empty container to a location in Indiana, where it would be swapped for a new container/trailer loaded with auto parts for delivery in Detroit. Dakota hired Lewis, trained him, provided him with a Dakota handbook, paid him, and withheld taxes on his behalf.  Lewis never communicated directly with anyone at Alliance. Alliance did not dictate any routes Dakota and/or Lewis was to take.  Alliance provided no tools, equipment, or materials. Alliance could not hire or fire Dakota drivers but could request a driver be removed from a route. Alliance was Dakota’s second or third largest customer, but the relationship was not exclusive by either party. The contractual provisions in the agreement between Dakota and Alliance disclaimed any employment/agency relationship between the two and/or Dakota’s drivers. Alliance directed Dakota when and where to pick up goods, the delivery window, and whether the delivery needed to be via flatbed or container. Alliance specified the type of chassis Dakota was to use.  Alliance required Dakota to utilize the EDI system to communicate with Alliance regarding the shipments. Dakota was required under the agreement to maintain a satisfactory rating and notify Alliance if the rating fell to conditional or unsatisfactory. Alliance marketed itself as making a “perfect shipment” commitment to its customers, including on-time pickups and deliveries with the load’s integrity intact and pursuant to an accurate freight bill. Alliance placed requirements upon Dakota for seal and shipment integrity.  Dakota was prohibited from “subcontracting” out loads that Alliance brokered to it. Dakota was required to add Alliance as an additional insured on its insurance policies. Under these facts, the appellate court held as a matter of law that neither Lewis nor Dakota could be considered to be the agent of Alliance thereby subjecting Alliance to vicarious liability for the negligence of Lewis or Dakota. The court stressed “[t]he cardinal consideration is whether that person retains the right to control the manner of doing the work. Other factors courts consider include (1) the question of hiring, (2) the right to discharge, (3) the manner of direction of the servant, (4) the right to terminate the relationship, and (5) the character of the supervision of the work done. The presence of one or more of these facts and indicia merely serves as a guide to resolving the primary question of whether the alleged agent is truly an independent contractor or is subject to control.” The court performed an in-depth analysis of prior case authorities, comparing and contrasting the facts of each to that presented in the instant action. In sum, the court concluded “Alliance exercised little, if any control over Dakota’s and its drivers’ performance of the transportation work, as opposed to control over the result of the assigned task or matters ancillary to the work to be performed.” 

CARGO

RPM Freight Sys., LLC v. K1 Express, Inc., 2023 U.S. Dist. LEXIS 162578, C.A. No. 21-cv-11964 (E.D. Mich. Sep. 8, 2023). In this breach of contract action arising from the loss/destruction of seven Teslas while being transported from California to other states, the Court analyzed whether a motor carrier had effectively waived Carmack defenses via provisions of the Broker-Carrier Agreement and, further, if it breached the Broker-Carrier Agreement by refusing to indemnify the broker for the losses on account of the damaged autos. RPM and K1 entered into a Broker-Carrier Agreement pursuant to which RPM would tender loads to K1 for interstate transportation. The tractor-trailer caught fire while in transit. Tesla sought damages from RPM for the damaged vehicles, which RPM paid to Tesla. Notably, the decision contains no analysis of whether RPM obtained an assignment of Tesla’s rights in connection with the payment. RPM then sought to recover the amounts it paid to Tesla from K1. K1’s cargo insurer denied the claim, finding that the damage was caused by the inherent vice or nature of the cargo. Thereafter, K1 denied RPM’s demand to defend or indemnify them for the damages. RPM brought suit against K1 for breach of the Broker-Carrier Agreement. The court first held the Carmack Amendment did not apply because the Broker-Carrier Agreement contained a Carmack waiver. Accordingly, any Carmack defense that might otherwise be applicable to K1’s duty to indemnify RPM was contractually waived. Turning to the language of the Broker-Carrier Agreement, the court agreed with RPM that, even though some of the language was ambiguous, the Cargo Liability and Indemnification provisions when read in tandem expressly required K1 to indemnify RPM against any and all actions, which would include cargo loss or damage. As such, the court granted summary judgment to RPM on its breach of contract claim against K1.    

Beaumont v. Vanguard Logistics Servs. United States, Inc., 2023 U.S. Dist. LEXIS 172365, C.A. No. 22-cv-6235 (S.D.N.Y. Sep. 27, 2023). A NVOCC was denied summary judgment on COGSA’s $500 limitation of liability wherein the court found that NVOCC had failed to present evidence establishing the shipper was given a fair opportunity to select a higher value and pay an excess charge for additional protection. The court explained “[t]o be sure, where a bill of lading ‘explicitly incorporates COGSA’s provisions or refers in some way to the $500 per package limitation,’ this ‘constitutes prima facie evidence of fair opportunity.’” The at-issue bill of lading contains the relevant paragraph, entitled “LIMITATION OF LIABILITY,” which states that “the value of the cargo shall be deemed to be $500 per package” unless “otherwise provided” and mentions COGSA. However, there was a factual dispute as to whether the shipper was ever provided the rear of the bill of lading where the critical Limitation of Liability was provided. On the record before it, the court could not say. as a matter of law. that the shipper had been provided with the rear of the bill of lading and, as such, could not rule as a matter of law that the NVOCC met the fair opportunity requirement to limit its liability to $500 per package/CFU under COGSA. 

COVERAGE

Godlove v. Humes, 2023 Pa. Super. LEXIS 435, C.A. No. 102 MDA 2023 (Pa. Super. Ct. Sep. 26, 2023).  The Pennsylvania appellate court reversed the trial court’s dismissal of a declaratory judgment action, finding that a sufficient controversy existed to allow the declaratory judgment action to proceed. In the underlying tort litigation, the tort plaintiffs and motor carrier/driver defendants entered into a “Non-Execution, Assignment, Settlement and Stipulation to Consent Judgment” in the amount of $1,000,00, which was recorded.  The agreement further provided that the driver/motor carrier assigned any rights they may have against their insurer with respect to coverage under the commercial auto liability policy to the tort plaintiffs. In light of this, the appellate court determined there was no issue of non-justiciability and the tort plaintiffs were permitted to seek a declaratory judgment of coverage under the at-issue policy. 

Perez v. Gypsum Express, Ltd., 2023 U.S. Dist. LEXIS 168527, C.A. No. 1:22-cv-01050 (N.D. Ga. Sep. 21, 2023). An insurer was successful in getting a direct-action claim under O.C.G.A. §§ 40-1-122 & 40-2-140 against it dismissed on the basis that the policy was an excess policy not subject to the statutory exception allowing an insurer for a motor carrier to be named directly in a personal injury tort action. The policy at issue named Gypsum Express, Ltd. as the named insured under the policy but provided for a self-insured retention (SIR) of $100,000 per occurrence for certain coverages, including for personal injury and property damage liability. The policy only provided coverage in excess of the SIR. The court agreed with the insurer that Georgia’s direct-action statutes did not extend to excess insurers and that the policy in question was, in fact, excess insurance. Accordingly, the insurer was not a proper party to the tort action, and the court ordered dismissal of the claims against it.   

Estate of Dojcinovic v. Ace Prop. & Cas. Ins. Co., 2023 U.S. Dist. LEXIS 168446, C.A. No. 21-11928 (E.D. Mich. Sep. 21, 2023). An insurer was granted summary judgment, with the court finding its insurance policy did not provide for UM/UIM benefits under the facts of the accident. The tort plaintiffs were Michigan residents and both self-employed commercial truck drivers. One of the tort plaintiffs owned a company named Dark & Z Corporation as well as a Freightliner tractor. Dark & Z entered into an independent contractor operating agreement with Elvis Services, Inc., a federally registered motor carrier. Dark & Z leased the Freightliner to Elvis and agreed to provide transportation hauling services hauling Elvis’s cargo. At the time of the Accident, the tort plaintiffs were transporting Elvis’ cargo.  Elvis was insured under a commercial auto liability policy with ACE, which provided for UM/UIM benefits to “covered auto” which the policy defined as “owned autos only” (Symbol 62). The court acknowledged the policy did not define “own” but applied the plain and ordinary meaning of the term, which it found connotes some possessory interest in the item. The court held that the lease agreement, whereby Elvis leased the Dark & Z-owned Freightliner, did not constitute Elvis “owning” the Freightliner. As such, the Freightliner was not an owned auto, and the policy did not provide UM/UIM coverage. The court rejected applying the definition of “own” used in Michigan’s no-fault act because UM/UIM coverage is not mandatory and accordingly insuring obligations are determined solely by contractual agreement. The court rejected the tort plaintiffs’ arguments of collateral estoppel and res judicata stemming from a prior ruling on PIP benefits, finding the issues presented in that action were distinct from the current issue of entitlement to UM/UIM benefits under the ACE policy. 

Brooklyn Specialty Ins. Co. Risk Retention Grp. v. Bison Advisors, LLC, 2023 U.S. Dist. LEXIS 163694 (M.D. Ga. Sep. 14, 2023). An insurer was granted summary judgment that its MCS 90 endorsement was not triggered in connection with a consent judgment arising from a motor vehicle accident. Tort plaintiffs died in a motor vehicle accident involving a tractor-trailer owned by Paper Impex and leased to Raptor Auto Shipping. A Raptor employee was operating the tractor-trailer at the time of the accident. Brooklyn Specialty (“BSIC”) issued a commercial auto liability policy to Paper Impex, which contained a MCS 90 endorsement.  he policy limited coverage under the policy to vehicles specifically described on the declarations page to the policy. Coverage was further limited to scheduled drivers on the policy. Neither the tractor, trailer, nor driver were scheduled on the policy. The Estate of the tort plaintiff entered a Compromise, Settlement and Release Agreement with the Underlying Lawsuit Defendants (the “Settlement Agreement”). The Settlement Agreement released and discharged Paper Impex from “all claims, demands, causes of action, known or unknown, liabilities and damages, of any kind, at common law, statutory, or otherwise, which presently exist or which may arise in the future, directly or indirectly, attributable to the Incident of March 22, 2019 made the basis of the Lawsuit.” BSIC did not provide Paper Impex a defense or indemnity in connection with the Underlying Lawsuit, was not involved in the settlement negotiations in the Underlying Lawsuit, and did not consent to the release of Paper Impex in the Settlement Agreement.  Subsequently, a consent judgment was entered in the underlying lawsuit. At the time of the accident, Raptor was insured under an insurance policy issued by ATG Insurance Risk Retention Group, Inc. (“ATG”) which provided $1,000,000.00 in liability limits (the “ATG Policy”). Paper Impex was an additional insured under the ATG Policy, and ATG provided a defense and indemnity to Paper Impex in the Underlying Lawsuit. ATG paid a sum in excess of $900,000.00 to the Estates. In total, the Estates received payments in excess of $2,000,000.00 from insurers in settlement of the Underlying Lawsuit. BSIC filed a declaratory judgment action seeking an order holding it had no obligation to pay any portion of the Consent Judgment entered against Paper Impex under the terms of the BSIC Policy’s MCS 90. The court agreed with BSIC that the payment to the Estates under the Raptor/ATG Policy, which provided $1,000,000 in liability limits—well above the $750,000 regulatory minimum—satisfied the federal financial responsibility requirements underlying the MCS 90, and, accordingly, the MCS 90 on the BSIC Policy was not triggered. The court noted that Paper Impex was an additional insured under the Raptor/ATG Policy.

Blue Hill Specialty Ins. Co. v. Grinston, 2023 U.S. Dist. LEXIS 161104, C.A. No. 3:22-cv-713 (S.D. Miss. Sep. 12, 2023). An insurer was denied summary judgment in a declaratory judgment action over the amount of coverage available under a commercial auto liability policy. Blue Hill issued a commercial auto liability policy to Grinston Trucking. Delta Industries contracted with Grinston Trucking for transportation and required, pursuant to the contract, that Grinston Trucking maintain at least $2,000,000 in liability insurance. Grinston Trucking was subsequently involved in a fatal accident.  In connection with the state court tort action, Delta produced a Certificate of Insurance, indicating it was “issued as a matter of information only” in order to “certify the policies of insurance below have been issued,” and was signed by a representative of Grinston Trucking’s insurance agent (the “COI”). The COI indicated on its face Blue Hill’s corporate parent issued a policy with a $2,000,000 CSL. Blue Hill produced a declarations page evidencing only $750,000 in coverage as well as a declaration from a Blue Hill representative indicating Blue Hill never had more than $750,000 in coverage. Grinston Trucking’s owner testified that Grinston Trucking had $2,000,000 in coverage at the time of the Accident and had been paying premiums for $2,000,000 in coverage. In denying summary judgment to Blue Hill, the court held the testimony from Grinston’s owner created a genuine issue of material fact. The court found the COI “certified” the information—i.e., that Grinston Trucking had $2,000,000 in coverage. The court further found Blue Hill did not present any evidence that the COI had been doctored or present a certificate matching the purported $750,000 in coverage. Last, the court found Blue Hill did not present any evidence that Grinston Trucking specifically requested $750,000 in coverage. 

Atain Specialty Ins. Co. v. T. Disney Trucking & Grading, Inc., 2023 U.S. Dist. LEXIS 164539, C.A. No. 3:21-cv-01097 (M.D. Fla. Sep. 15, 2023). In this insurance coverage declaratory judgment action, the court addressed numerous coverage issues. The Named Insured, T. Disney Trucking & Grading, held a CGL policy with Atain Specialty Insurance and an excess insurance policy with Evanston. At the time of the Accident, T. Disney was involved in a construction project on a state roadway. During the course of construction, several trucks involved in the project were stopped in the continuous left turn lane.Diaz was one of the drivers stopped in the middle lane, as was Ruben Sanchez. Diaz got out of his vehicle and walked to coordinate completion of deliveries with the other drivers. While Diaz was standing and coordinating the deliveries, a tractor trailer hauling machinery was traveling in the opposite direction in an adjacent lane. A metal piece from the tractor trailer’s load struck Diaz as the truck was passing by and killed him. The tractor trailer also collided with Sanchez, injuring him. The Atain CGL policy contained an auto exclusion that provided coverage did not apply to (2) “Bodily injury” or “property damage” arising out of or in connection with any “auto” unless outlined below; or (3) “Bodily injury” or “property damage” arising out of or in connection with the “loading or unloading” of any aircraft, “auto” or watercraft by any insured unless as outlined below.  It further provided the exclusion applies to “bodily injury” or “property damage” arising out of any aircraft, “auto” or watercraft, whether or not owned, maintained, used, rented, leased, hired, loaned, borrowed or entrusted to others or provided to another by any insured. The employer exclusion provided coverage did not apply to “Bodily injury” to an “employee,” subcontractor, employee of any subcontractor, “independent contractor,” employee of any “independent contractor,” “temporary worker,” “leased worker,” “volunteer worker” of any insured or any person performing work or services for any insured arising out of and in the course of employment by or service to any insured for which any insured may be held liable as an employer or in any other capacity.” The Evanston excess policy was a follow form policy, meaning that for coverage to apply under it, coverage must apply under the underlying (i.e., Atain) policy. The Estate of Diaz and Sanchez sued T. Disney in connection with the Accident.  In addressing Atain and Evanston’s motions for summary judgment, the court first recognized that the claims were ripe for adjudication. It explained “[t]he Eleventh Circuit has recognized ‘[t]hat the liability may be contingent does not necessarily defeat jurisdiction of a declaratory judgment action.’” It explained that both Sanchez and the Estate have affirmatively sought coverage for losses, and Atain and Evanston have denied that any coverage is due. Under these facts, a real, substantial controversy existed. The court next turned to the auto exclusion. The court held “the operative phrases ‘arising out of’ and ‘in connection with’ are not defined in the policy; however, these phrases encompass a range of scenarios in which injury was related to an auto.” The court stressed that the operative pleading alleged harm caused by the operation of a vehicle—Sanchez being struck by the tractor-trailer itself whereas Diaz was struck by a piece of metal being carried by a moving tractor. The court explained that there was no proof that either injury would have occurred “but for” the involvement of an auto (i.e., the metal object standing alone, unrelated to the moving trailer would not have caused injury to Diaz). Accordingly, the court found the auto exclusion applied to remove both claims from coverage. With respect to the employee exclusion, the court stressed that it extended beyond direct employees of the named insured—T. Disney—it excluded for bodily injury to an “employee, subcontractor, employee of any subcontractor, independent contractor, employee of any independent contractor . . . or any person performing work or services for any insured arising out of and in the course of employment by or service to any insured.” Pointing to the various independent contractor agreements and undisputed facts of the record, the court held it was indisputable that both Sanchez and Diaz were performing work for T. Disney at the time of the Accident. Thus, the court held there was no duty upon either insurer to afford a defense or indemnify T. Disney.  It further awarded Atain defense costs incurred in defending T. Disney under reservation of rights, noting that T. Disney had accepted the defense under reservation of rights to recoup such costs. 

Falls Lake Nat’l Ins. Co. v. Wilbourne Land & Timber, Inc., 2023 U.S. Dist. LEXIS 161169, C.A. No. 3:23-cv-142 (E.D.Va. Sep. 11, 2023). A Virginia federal district court refused to hear an insurance coverage declaratory judgment action while the underlying state court tort action remained pending. The court explained the Fourth Circuit has established a four-part test for district courts to consider when exercising jurisdiction in declaratory judgment actions involving ongoing state court proceedings: (1) whether the state has a strong interest in having the issues decided in its courts; (2) whether the state courts could resolve the issues more efficiently than the federal courts; (3) whether the presence of “overlapping issues of fact or law” might create unnecessary “entanglement” between the state and federal courts; and (4) whether the federal action is mere “procedural fencing,” in the sense that the action is merely the product of forum-shopping. Applying these factors, the court found they weighed in favor of the federal court abstaining from exercising its discretionary jurisdiction under the Declaratory Judgment Act. 

Travelers Indem. Co. of Conn. v. Brook, 2023 U.S. Dist. LEXIS 157264, C.A. No. CIV-23-420-F (W.D. Ok. Sep. 6, 2023). In this insurance coverage declaratory judgment action, the court granted summary judgment in favor of the insurer, holding it had no obligation to afford coverage under its policy. CSTK is a company that provides, among other things, service and installation of Thermo King products, i.e., refrigerated trailer units. Travelers issued an insurance policy to CSTK, which included uninsured motorist (UM) coverage. Brook was employed by CSTK as a master technician. On February 17, 2022, CSTK dispatched Brook to U.S. Foods to replace damaged or missing body parts, referred to as outer skins, on various Thermo King units. Brook drove a CSTK service vehicle to U.S. Foods. The service vehicle was a box truck with a hydraulic liftgate, also referred to as a hydraulic platform (hydraulic platform), on the back. The box truck held other equipment, including three ladders: a six-foot A-frame ladder, an eight-foot A-frame ladder, and a fourteen-foot extension ladder. In connection with his servicing of the trailers, Brook used the hydraulic lift on the back of the box truck, positioning his ladder on the lift.  While working on a trailer, descending the ladder (still sitting on the hydraulic lift gate) to retrieve a tool, he fell, sustaining injuries.  Brook thereafter filed a claim for UM benefits under the Travelers/CSTK policy. The court, in denying Brook’s claim for UM benefits under the policy, stressed Oklahoma applies a two-part test for awarding UM benefits: (1) whether “the use of an uninsured motor vehicle is related to its transportation nature,” and (2) whether the injuries alleged are “connected to that use.” The vehicle must be more than the “mere site of the accident,” and the automobile must “be itself the harm-dealing instrumentality.” The court explained that when Brook fell, the box truck was parked, with the parking brake set, and the keys to the box truck had been removed and placed in Brook’s personal toolbox in the back of the box truck. Although Brook had moved the box truck several times to re-position it to perform his tasks and it was moved by others after Brook fell, the box truck was not moving or running when Brook fell. It had been parked for approximately 45 minutes while Brook worked on the trailer. Thus, Brook was unable to prove a causal connection between his injuries and the box truck’s transportation mode. Accordingly, he was not entitled to UM benefits and the court granted summary judgment to the insurer. 

WORKERS COMPENSATION

No cases of note to report.