Shuie and I are looking forward to meeting up with many of you at the National Association of Mutual Insurance Companies annual meeting in Chicago this week.  If you are attending please stop by and visit with us.  I am also reminding our Texas friends that I will be speaking at the IMUA Regional meeting in Texas and hope to see you there.

This month we report:

CARGO THEFT – Freightwatch has released its latest report on cargo theft, reporting an average 63 trucking cargo thefts per month in 2015, lower than the previous year.  The average value of the freight was $184,100 which was a 6 percent drop in volume and a 21 percent drop in value compared to 2014.  Pharmaceutical thefts quadrupled in volume, and facility thefts were at record highs, with average theft values of $681,709.  More than half of all recorded in-transit thefts involved stealing stationary and unattended trailers and containers. Food and drinks continue to be the most stolen product type, accounting for 24 percent of total thefts in the U.S. Electronics and home and garden products followed, accounting for 15 percent and 12 percent of all reported thefts respectively. Florida led the way with the most reported thefts, followed close by California, Texas, New Jersey and Georgia.  Full truckload thefts occurred most often followed with 9% of pilferage losses and 5% fictitious pickups

In other related news the state of Mississippi has recognized the need for increased penalties to stop cargo theft.  New legislation would include incarceration and higher fines. Thieves who steal cargo from trucks loaded with controlled substances, or pharmaceuticals, valued at less than $10,000 would face fines up to $100,000 and/or up to 10 years in prison. Theft of controlled substances valued up to $1 million could result in as much as 25 years behind bars and/or fines up to $1 million. Loads valued in excess of $1 million could result in prison terms as long as 30 years and/or fines up to $1 million. Theft of cargo valued as high as $10,000 would include fines up to $100,000 and/or 10 years behind bars. Stolen loads valued in excess of $10,000 could result in 20 years in prison and/or fines up to $1 million.

CROSS BORDER OPERATIONS – The FMCSA has advised that it intends to officially codify New Mexico’s Dona Ana County and Luna County as commercial border zones and expand the commercial border zone around El Paso, Texas.  Commercial border zones along the U.S.-Mexican border allow Mexican-domiciled carriers and drivers and U.S.-based carriers and drivers limited access to cross the U.S.-Mexican border to deliver freight.

BRIDGE INTEGRITY –  The American Road and Transportation Builders Association reports that nearly 10% of the country’s bridges – 58,495 out of 609,539 – were considered structurally deficient last year and needed repairs, The five states with the most deficient bridges were Iowa with 5,025, Pennsylvania with 4,783, Oklahoma with 3,776, Missouri with 3,222 and Nebraska with 2,474. The five states with the biggest share of deficient bridges were Rhode Island at 23.2%, Pennsylvania at 21%, Iowa at 20.7%, South Dakota at 19.7% and Oklahoma at 16.4.  Of the 250 most heavily traveled bridges that need repairs, 85% were built before 1970 with the creation of the interstate highway system.

TRUCKING ECONOMICS – Avondale Partners reports that fleet failures increased sharply in the fourth quarter. 1,380 trucks were taken off the road as fleets shut down between October and December. Despite the fourth-quarter increase, the total number of failures during 2015 was 4,405 trucks, the lowest since they started tracking 20 years ago.

However the Trucking Conditions Index released by FTR shows that the trucking market continues to be solid. The TCI reflects tightening conditions for hauling capacity and is comprised of various metrics, including capacity, fuel, bankruptcies, cost of capital, and freight. According to FTR, a TCI reading above zero represents an adequate trucking environment, with readings above ten indicating that volumes, prices, and margin are in a good range for carriers. The last reported numbers are above 10 – a good sign for trucking.

CASES:

AUTO:

A lessor of a trailer has no liability, thanks to the Graves Amendment, for an accident where there is no evidence that the lessor either failed to maintain the equipment or released it without proper inspection.  The Middle District of Pennsylvania also held that there were questions of fact as to whether the state of mind of the driver or the actions of the trucking company warranted imposition of punitive damages.  (Holder v. Suarez, 2016 WL 593620)

The technicalities of removal and the ease in which they can be missed resulted in a remand in a truck accident case in the Northern District of Mississippi.  The driver’s suit against the owner of the tractor – trailer was remanded back to state court when the removal petition failed to specifically assert that consent of each codefendant was obtained.  (Robinson v. Wheeler, 2016 WL 593624)

A 3 million dollar verdict against a trucker was upheld by the 8th Circuit  The Court held that the evidence supported a finding that the motor carrier was negligent in failing to shut down a bridge before crossing with a log skidder. The Court concluded that it was reasonably foreseeable that another driver would be on the bridge and could be injured.  (Brown v. Davis, 2016 U.S. App LEXIS 3102)

An injured party opposed an insurer’s efforts to seek a declaration regarding the applicability of coverage for a truck accident.  The District Court in Colorado held that the insurer did not abuse the judicial process by seeking a declaration on coverage and dismissed the counter-claim asserted against the insurer. (Artisan and Truckers Casualty Co. v. AIFA Trucking Co., 2016 WL 430026)

The Court of Appeals in Minnesota held that a settlement agreement which was an attempt to bind an insurer was not valid when it was not signed before the insurer undertook the defense under a reservation of rights.  The court held there were questions of fact as to whether a trucking company was liable for negligent retention when a driver assaulted the plaintiff and that the trucking insurer was entitled to intervene in the action to protect its interest in the suit.  (Hartfiel v. Allison, 2016 WL 281416)

Providing a defense without a reservation of rights and not tendering the defense to another insurer until the eve of trial was fatal for an insurer in the Appellate Court in Illinois.  The Court held that the insurer waived its right to seek contribution from the second insurer.  (Acuity v. Southwest Spring, Inc., 2016 U.S. App. 142380-U)

The Northern District of Illinois held that a motor carrier properly rejected UM coverage for all of its insureds despite plaintiff’s efforts to argue otherwise.  The Court held that the insurer was not obligated to list the rejection on the index of policy forms and that the testimony of the insured confirmed that UM coverage was properly rejected.  (Stinton v. Old Republic Insurance Company, 2016 U.S. Dist Lexis 15921)

Is he a broker or a carrier?  That is, as always the question.  The Southern District of Florida held that factual questions precluded a determination of whether the defendant was liable as a carrier or a broker.  The Court also held that a broker was not obligated to verify that a motor carrier did not have an unattended vehicle exclusion in the cargo policy when it was not made a term of the contract with the shipper, but that there were questions as to whether the broker should have instructed the driver that the load could not stop.  Interestingly enough, the Court also held that a trucking company which was related to the broker had no liability without any additional evidence that the shipper relied on the trucking company to haul the shipment.  (National Union Ins. Co. v. All American Freight, 2016 WL 6333710)

See you next month.

We are just about dug out of our monster snow storm.  It was too good to be true that we might actually get away with limited snow this winter.  I am heading off to the West Coast next week and I am looking forward to catching up with some of you when I present at the IMUA meeting in San Francisco and the MIAS in Seattle.  Trending issue in cargo will be the focus of the meetings.

As you all know it has been a busy month following the enactment of FAST and the removal of the BASIC scores from the CSA site.  CAB premium subscribers continue to have access to the CAB BASIC score and have not missed a beat in continuing the ability to underwrite with the right tools.

We have compiled the breakdown of CAB Financial Ratings for last year and the information is available here. While the overall breakdown is stable, over 27% of all carriers rated were POOR or below. So financial condition should still be a concern for underwriters.

This month we report:

TRUCK SIZE – Although increased truck weight was removed from FAST, efforts have begun again to allow for increased size of trailers. A bill has been introduced to allow 33-foot trailers on federal highways. GovTrack.us predicts the chance of it actually being enacted to be 1 percent.

OPERATION SAFE DRIVER – CVSA released its report on its fall safe driver campaign. 21,012 commercial motor vehicle drivers and passenger vehicle drivers were evaluated with an additional 19,480 North American Standard Roadside Inspections conducted.  The data was collected by 2,789 law enforcement officials at 706 locations across the United States and Canada.  The top five citations issued to CMV drivers (excluding violations of state and/or local laws) were:

• size and weight (30.6 percent)
• failure to use a seat belt while operating a CMV (14.3 percent)
• speeding (9.9 percent)
• failure to obey traffic control device (6.9 percent)
• using a handheld phone (1.9 percent)
  

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TRANSPORTATION STATS – A little bored?  Stuck in the house with the bad weather?  The BTS has released the scintillating 2016 Pocket Guide to Transportation. The numbers are good with truck freight increasing in all categories.   We don’t want to ruin the ending so you can check out the statistics here.

TRUCK FATALITIES – The rate and total number of fatalities involving trucks weighing at least 10,000 pounds declined in 2014 from the prior year, according to newly released federal data. Although driving was up, only 61 few people died in truck crashes which correlates to a reduced fatality rate of 1.4 per 100 million miles. Although it is a small decrease, it was a decrease nonetheless.

ECONOMIC INDICATORS – The economic well being of the trucking industry has always been indicative of the overall economy.  Unfortunately at the close of business in 2015 there was a downward trend in trucking stocks.  Standard & Poor showed a 27% drop in trucking stocks, well above the 18% decline in the Dow Jones Transportation average.  By sector, the largest drop was the 39% among less-than-truckload carriers. Truckload shares fell 30% on average. Package carriers were down 16%.  Expectations for 2016 are following the downward trend.

SAFETY FITNESS DETERMINATION –  The FMCSA released a proposed rulemaking designed to enhance the Department’s ability to identify non-complaint carriers.  The proposed rule indicates that the methodology will be changed by integrating on-road safety data from inspections, along with the results of investigations and crash reports to determine scores.  The new rule would provide for carriers to either be fit or unfit. The proposed methodology would determine when a carrier is not fit to operate commercial motor vehicles in or affecting interstate commerce based on:

1. the carrier’s performance in relation to a fixed failure threshold established in the rule for five of the agency’s Behavior Analysis and Safety Improvement Categories (BASICs);
2. investigation results; or
3. a combination of on-road safety data and investigation information.

The proposed rule further incorporates data sufficiency standards and would require that a significant pattern of non-compliance be documented in order for a carrier to fail a BASIC. The complete proposed rule is available here.

MOST WANTED LIST – The NTSB released its Most Wanted List of safety improvements and most of them are focused on trucking.  Reducing driver fatigue was high on the list as well as a sought after reduction in driver impairment and distracted driving. The full report can be viewed here.

CROSS BORDER OPERATIONS – For the first time ever there was more freight moving between Mexico and the U.S. than between Canada and U.S. According to new U.S. Transportation Department figures, the value of U.S.-Canada freight totaled $47.7 billion in October, down 18.5% from a year earlier. The value of U.S.-Mexico freight totaled $48.9 billion.  Trucks carried 61.2% of the freight to and from Canada. Trucks carried 72.8% of the freight transported to and from Mexico.

CURRENT CASES

Interested in understanding the motor carrier’s perspective on SMS and DataQ and the ability of a motor carrier to impact violations?  This month the Court of Appeals for the District of Columbia addressed a petition by a bus company against the FMCSA for administrative review of the FMCSA position on the carrier’s operations.  While ultimately the Court concluded that the petition must first be addressed in the District Court, the option is chock full of information to explain what happens in the underlying process.  (Silverado Stages, Inc. v. FMCSA, 2016 U.S. App. Lexis 629)

BI & PD

The Supreme Court in Montana evaluated the rights and obligations of a primary insurer with general liability and auto coverage, and the excess insurer over those policies.  The Court concluded that a $4 million general aggregate limit in an excess policy applied to claims made under the excess coverage and not the underlying policies.  The Court concluded that the excess carrier’s limit of $4 million was triggered under this significant loss. (Westchester Surplus Lines Co. v Keller Transport, Inc., 2016WL154989)

A plaintiff’s effort to seek prejudgment interest on both its award for damages and its claim for attorney’s fees was unsuccessful.  The Court of Appeals in Indiana concluded that as the trial court has set forth its reasoning for only awarding prejudgment interest on the judgment it did not abuse its discretion on the discretionary interest award and refused to allow the additional damages. (Hoker Trucking v. Robbins, 2015 WL 9598288)

Louisiana refused to give plaintiff summary judgment on liability before discovery on a theory of negligence per se. The Court held that while certain actions, like the truck traveling into the wrong lane, may create a presumption of negligence, the driver should have the opportunity to rebut the presumption. (Hartwell v. Travelers Casualty & Surety Co. of America, 2015 WL 9482898)

The 9th Circuit upheld the right of a trial judge to reject an excessively high verdict against a trucking company. The trial judge showed that he had reviewed similar verdicts in Arizona, and that he reviewed the actual case to determine any distinctions which would support a higher verdict. His actions were held not to be an abuse of discretion. The Court also upheld the dismissal of the punitive damage claim, noting that falling asleep behind the wheel, with no other facts, would not sustain a claim for punitive damages. (Bachrach v. Covenant Transportation Corp., 206 WL 191983)

An insurer’s efforts to bifurcate its declaratory judgment from the insured’s counter-claim for bad faith were unsuccessful in the District Court in Nevada. The Court concluded that the claims were intertwined and the fact that the motor carrier might bring a claim for punitive damages did not support bifurcation at this time.  (Hudson Insurance Co. v. Miller, 2016 U.S. Dist. LEXIS 2967)

A plaintiff’s actions against a transportation broker for a personal injury action caused by the truck driver hauling freight brokered by the defendant was not dismissed in the Eastern District in Texas.  The Court held that the action against the broker was part of the state’s safety regulatory authority and was exempt from FAAA preemption by 49 USC 14501. (Cruz Miguel Aguina Morales v. Redco Transport, LTD., 2015 WL 9274068)

A tow company was not subject to jurisdiction in the Court in Illinois for an accident which occurred in Iowa.  The Appellate Court held that when the tow company had limited forays into Illinois, and then only to recover disabled tractor trailers of its customers and payments arising from those actions accounted for only a minimal portion of its revenue, it would not be subject to answering a suit in Illinois. (Inman v. Howe Freightways, Inc., 2015 Il App (1st) 1150224)

A separate cause of action or punitive damages does not stand against a carrier in the Eastern District of Pennsylvania.  The Court held that a punitive damage claim must be pled within a negligence claim, dismissing the separate cause of action.  Ultimately however, the Court concluded that it could at least be pled within the negligence count and would allow the plaintiff to seek discovery on the cause of action against the defendant. (Lucchesi v. Johnson, 2016 WL9308334)

Pennsylvania was busy this month.  The Eastern District of Pennsylvania held that a truck driver was not allowed to proceed on a negligence claim for injuries suffered during the unloading of a truck at the consignee.  The Court held that there was no evidence that the consignee retained control over the unloading, that there was any peculiar risk or that the consignee has any superior knowledge of the unloading. (Edwards v. Marmaxx Operating Corporation, 2015 WL 67383)

A claim by a railroad against a trucking company and its operator for property damage caused by an accident was dismissed in the Eastern District of Michigan on the basis that any tort claim was barred by the Michigan No Fault Act, which was not preempted by FAAA or the ICCTA.  Plaintiff’s remedy was against the insurer under no-fault which was time barred. Plaintiff was, however, permitted to amend a claim for intentional acts, although the Court held it an unlikely avenue of recovery. (CSX Transportation v. Benore, 2016 WL9489606)

The fact that the Court instructed the jury on the “sudden emergency doc trine” and not the “assured clear distance ahead” was insufficient to allow for an overturn of the favorable defense verdict. The Pennsylvania Superior Court held that while the sudden emergency doctrine may not have applied because the motor carrier may have created the emergency situation the jury, based upon the award, did not allow that a defense to the motor carrier. (Turner v. Safeway Trucking, 2016 WL 128373)

A motor carrier in the Southern District of Ohio was successful in defeating a claim for negligent retention of the driver as well as a claim for punitive damages.  The Court held that when there was no evidence that the motor carrier ignored any facts which would indicate a problem with the driver there was no basis for the causes of action. The fact that the driver had filed 7 accident reports while operating 750,000 miles, none with personal injury, would not reasonably support any claim by the plaintiffs.  (Laumann v. ALTL, Inc.,  2015 WL 2898)

The Eastern District of New York sua sponte (on its own) remanded a personal injury case back to State Court after the motor carrier’s removal. The Court held that when the complaint alleged only $5,000 in property damage and no allegation of serious injury it was not clear that the diversity jurisdictional limit was met. (Walker v. Rodgers, 2016 WL 236223)

The Court of Appeals in Texas, on remand from the Texas Supreme Court, upheld a defense verdict for a farm operation that was sued for negligent hiring of a motor carrier.  The Court concluded that the plaintiff failed to produce evidence sufficient to establish that a claim for common law negligent hiring of an independent contractor.  (Gonzalez v. Garcia, 2016 WL 269095)

The Eastern District of New York denied a motor carrier’s motion for summary judgment when the third party defendant failed to timely file the motion pursuant to the Court order. The Court also held that it would apply Florida loss-allocating law to a Florida accident being litigated in NY. While NY has joint and several liability, the same is not true for Florida, which holds that a given defendant is liable only for its own actions.  (Desir Austin Austin v. Ray’s Rapid Transporting, 2015 WL9412342)

CARGO

Quiet month for cargo cases, with only two small cases to report.

The Eastern District in Texas upheld removal based upon the preemptive effect of Carmack, noting that a carrier’s invoice in excess of $10,000 could support the jurisdictional requirement for removal. (Matrix Chemical, LLC v. FedEx Freights, 2016 U.S. Dist. LEXIS 6940)

The District Court in Arizona rejected a motor carrier’s motion to transfer a case to California in a cargo loss arising from a California to Arizona shipment. The Court concluded that the motor carrier had not made a strong showing of inconvenience and would be compelled to litigate in Arizona. (Triple Buy, LLC v. Dependable Express, 2016 U.S. Dist LEXIS 5931)

See you next month.