I hope you had a great month. Tiana and I were happy to meet with so many of you at the annual IMUA meeting.  It is always a pleasure to get together with old and new friends.  We were pleased to sponsor the Transportation Session and hope all those present learned some of the new issues facing the industry in this complex arena.  And speaking of Tiana I would like to give her a special acknowledgment, recognizing her promotion to Vice President at CAB.  It is a well-deserved promotion. 

I would also like to thank the IMUA and especially my friend Pat Stoik for the Excellence In Education Award. I am very proud to receive that award from the IMUA and Pat’s wonderful words meant so much to me.  We all need to continue to educate the industry.  CAB is proud to help in that endeavor. 

Before we head off to provide the news of the month, we take a special moment to thank our serviceman and woman for their service and sacrifice.  We are all very lucky to have such wonderful people protecting us. 

MOTOR CARRIER SELECTION PROCESS – The Transportation and Logistics Hiring Reform Act was introduced in the Senate this month.   It is designed to set national standards for shippers and third parties contracting or hiring trucking companies, requiring them to check a carrier’s federal safety rating, registration and insurance coverage before tendering freight.  The Senate bill would prohibit any other information being used against a shipper or broker in a negligent hiring case. 

DOT OVERSIGHT – The Inspector General of the DOT will undertake an audit of the ways that an at risk motor carrier are evaluated by the FMCSA.  The audit will evaluate investigative practices and the review process for compliance analysis.  In addition it will evaluate whether the steps are timely and sufficient. 

JOBS INCREASE – There has been an upward tick in jobs, after some significant losses in recent months.  The Department of Labor reports that a gain of nearly 2,000 jobs after the industry lost nearly 7,000 jobs the month prior. The “support activities for transportation” exhibited the highest gains with an addition of nearly 5,000 jobs. Only two subsectors showed losses with “transit and ground passenger transportation” losing 400 jobs and water transportation losing 100 jobs. 

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We hope that you had an excellent Thanksgiving break and are ready to hit the home stretch for 2015. We would like to take this time to express our thanks for your continued support. We truly enjoy working with you all, both professionally and personally.

It has been a quiet month other than the issues raised by the Highway Bill. Even our case section is small this month as even the Courts are slow with releases on topical cases. Everyone seems to be in a food coma. This month we report:

CSA AND THE HIGHWAY BILL – Of course we have to start with the latest news concerning the public release of CSA scores, a topic high on the agenda of many as companies plan for 2016 underwriting protocols. Congress passed a short term extension for highway funding until December 4th as it continues to work out differences in the highway bill. This is the 30th extension and claimed by Congress to be the last one. As you are aware the current House and Senate versions include provisions which will remove the CSA BASIC score from public record. It will not, however, remove the data, including the inspections reports. There will be no impact on our production of this data or our proprietary analytics. As always CAB will continue to provide you with a detailed analysis of the inspections reports and related BASIC type scoring.

HOURS OF SERVICE – The hours-of-service restart rules for truck drivers will continue to remain suspended as the mandated restart study has not yet been completed. The study was required following enactment of a law which suspended FMCSA’s rule requiring truck drivers to take off two consecutive periods of 1 a.m. to 5 a.m. during a 34-hour restart.

DRIVER MEDICATION REPORT – The FMCSA has sought public comment on a proposal to create a voluntary driver medication form designed to help medical examiners determine if prescription drugs being taken by a driver could interfere with the driver’s ability to operate a commercial vehicle. The agency said the form would include a listing of all medications and dosages prescribed, what medical conditions are being treated with the medications, and a statement by the driver’s physician that the driver is fit to drive when using the medications.

REGULATIONS – A final federal rule that would prohibit carriers, shippers and brokers from coercing truck drivers to violate safety regulations cleared review by the White House Office of Management and Budget (OMB). A final electronic logging device rule cleared OMB on Nov. 16. The coercion ruling is published in the November 30, 2015 Federal Register the other should be published momentarily. In additional the OMB is expected to conclude its review of a proposed speed-limiter rule for heavy trucks and the rule issued in December.

TRUCK FATALITIES – A recent federal study has revealed that fatalities among pedestrians and bicyclists in large-truck crashes increased at a faster rate than overall truck-related crash fatalities from 2009 to 2013. In 2013, the year with the most recent crash data available, 338 pedestrians and 78 bicyclists were killed in crashes involving large trucks, 30% and 39% increases over 2009. In 2009, there were 259 truck-involved pedestrian deaths and 56 among people on bicycles. The study released the following charts:

Source: FMCSA

ATRI CSA STUDY – The American Transportation Research Institute has released a report which contends that when they eliminated non-preventable accidents from a sample of 15 motor carriers’ CSA safety measurement scores there was a significant positive change in a majority of the carriers’ Crash BASIC percentile scores. Non-preventable crashes included animal collisions, other vehicles hitting legally parked trucks, other vehicles running a stoplight or sign and hitting trucks, crashes in which the operators of the other vehicles were driving under the influence and so-called “truck-assisted suicides.” The study was only based upon 17 carriers, with eighty-six percent of the carriers operating more than 1,000 power units.

DOUBLE TRAILERS – The Senate voted to remove a federal mandate from the Transportation and Housing and Urban Development appropriations bill that would have forced states to allow large trucks to pull double 33-foot trailers. Currently, 38 states do not allow these longer trucks to operate within their jurisdictions.

CONGESTION – The Tom Moreland Interchange in Atlanta has been voted the top trucking bottleneck in the American Transportation Research Institute’s 2015 Congestion Impact Analysis of Freight-Significant Highway Locations. The survey assesses the level of truck-oriented congestion at 250 locations on the national highway system. The top 10 locations on the ATRI list this year are:
1. Atlanta, I-285 at I-85 (north)
2. Chicago, I-290 at I-90/I-94
3. Fort Lee, New Jersey, I-95 at SR 4
4. Louisville, Kentucky, I-65 at I-64/I-71
5. Houston, I-610 at U.S. 290
6. Houston, I-10 at I-45
7. Cincinnati, I-71 at I-75
8. Houston, I-45 at U.S. 59
9. Los Angeles, SR 60 at SR 57
10. Houston, I-10 at U.S. 59.

CASES:

CARGO:

We saw an important decision this month from the 6th Circuit. The Court overturned a lower court decision which had held a motor carrier liable to indemnify a broker for a cargo loss in excess of a possible limitation of liability. The Court held that the Carmack Amendment did not give the broker a cause of action against the motor carrier under the Carmack Amendment and that the broker had no standing to sue on its own behalf. As the broker was also the assignee of the cargo owner the Court remanded the case to determine if the carrier had properly limited its liability under the bill of lading. (Exel v. Southern Refrigerated Transport, 2015 WL 6743551)

A motor carrier’s efforts to have a complaint dismissed against it failed in the District Court in Ohio. The Court held that the plaintiff sufficiently pled a cause of action against the motor carrier under the Carmack Amendment. The allegation in the complaint that the execution of a bill of lading by the motor carrier evidenced delivery in good order and condition was sufficient to allow the action to continue. The Court also held that the plaintiff was not required to specifically plead every element of a claim in the complaint. (Mitsui Sumitomo Insurance Co. v. Daily Express, 2015 WL 656546)

The District Court in New Jersey denied a plaintiff’s efforts to seek reconsideration of an earlier decision enforcing a limitation of liability. The Court held that the plaintiff failed to assert any additional law or evidence to support a conclusion that a motor carrier was required to provide for multiple options when allowing for subsets on limitations of liability (Choi v ABF Freight Systems, 2015 WL 6523473)

The District Court in Oregon denied a broker a request for reconsideration of last month’s decision denying summary judgment to the broker on its claim for payment of a cargo claim. (see last month’s bits) The Court held that the failure to raise jurisdictional issues in the original motion precluded them from being considered in support of plaintiff’s request for reconsideration. (Complete Distribution Services v. All States Transport, 2015 WL 6739125)

Although recovery was sought under the Carmack Amendment, the District Court in Puerto Rico concluded that it had diversity jurisdiction when the plaintiff, suing in subrogation, was also permitted to add in the insured’s deductible. That addition brought it over the jurisdictional limit. (Starrr Indemnity & Liability Co. v. Rios, 2015 WL 7104413)
A plaintiff was successful in obtaining a default judgment for a full cargo loss against a motor carrier in the District Court in New Jersey. An affidavit which included support for the value of the freight was enough to support the claim for damages. (Moroccannoil v. JMG Freight Group, 2015 WL 6673839)

AUTO:

Punitive damages are difficult against a motor carrier and the driver when there is no evidence to support a claim for them. The Southern District of Indiana dismissed the causes of action against the motor carrier as there was no evidence that the motor carrier was aware of any driver violation of hours of service. The punitive claim was also dismissed against the driver as there was no evidence that this was anything other than an accident. (Vogler v. James R. Poshard & Son, Inc. 2015 WL 6158790)