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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* Employee broke his arm wrestling a female bodybuilder.

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

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

* Employee left his clothes at the laundromat.

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

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

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

CARGO:

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

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

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

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

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

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

AUTO:

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

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

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

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

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

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

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

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

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

WORKER’S COMPENSATION

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

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

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

Happy New Year One and All!

 

We hope you all had a marvelous and fattening Thanksgiving and enjoyed a bit of a breather before we hit the last month of the year.  With the holidays upon us everything starts to slow down as we turn to holiday parties and preparation for the next round of holidays.  Whatever you will be celebrating in December we wish you a happy time and joyous holidays.  For me – Merry Christmas to all.

With those wonderful holiday thoughts in mind, Shuie and I were warmed by the attached story of the truck driver delivering the special Christmas tree which will grace the national’s capital.  When you are having your morning coffee, take a moment to read the story.  It is good reminder of how great our country is, and how trucking keeps everything going.

This month we report:

FSMA – The FDA released a Small Entity Compliance Guide to help small businesses understand the requirements of the Sanitary Transportation Rules.  Small businesses have until April 6, 2018 to comply. In the guide, shippers, loaders, carriers and receivers covered by the Sanitary Transportation Rule will find descriptions of the rule requirements in an easy-to-read, question and answer format that includes information on topics such as training and record keeping.  You can view the guidance here.

NTSB REPORTS – Have you ever had a chance to review an NTSB report on a truck accident?  They just released their report on a fatal crash involving a fatigued motor coach driver. Investigators determined the driver was in a state of “acute sleep loss” at the time of the crash. He had approximately five hours of sleep in the 40 hours preceding the crash. There was no evidence (e.g., tire marks) to indicate the driver took any action to avoid the barrier once the vehicle departed from its travel lane.  The report is interesting and is worth the read to see what they look for and to consider the impact of these reports on litigation exposures.  You can read the report here .

CVSA RESULTS – CVSA released the report of its targeted brake enforcement campaign in September 2017.  Approximately 14% of inspected vehicles were placed out of service for brake violations. 7,698 inspections were done in 40 jurisdictions in Canada and the U.S. 22 percent (1,680) of vehicles inspected were placed out of service for vehicle violations of any kind.  78 percent of the vehicles inspected did not have any out-of-service conditions. CVSA also released data collected on Brake Safety Day that examined antilock braking systems. The release notes that ABS violations were counted when the malfunction lamp did not work or the malfunction lamp stayed on, indicating a fault of some kind.

The findings are as follows:

* 5,456 air-braked power units required ABS attention; 11 percent (610) had ABS violations.

* 3,749 trailers required ABS attention; 14 percent (540) had ABS violations.

* 821 hydraulic-braked trucks required ABS attention; 5 percent (45) had ABS violations.

* 49 buses required ABS attention; 10 percent (five) had ABS violations.

ELECTRONIC LOGGING DEVICES – The date of compliance is quickly approaching, barring any congressional tolling.  The FMCSA has announced that in advance of the Dec. 18, 2017 implementation date and to further facilitate transition to the rule by motor carriers, the FMCS will be providing guidance related to enforcement procedures during the ELD transition.  These will include a 90-day temporary waiver from the ELD requirement for transporters of agricultural commodities, formal guidance specifically pertaining to the existing Hours-of-Service exemption for the agricultural industry, and guidance on the “personal conveyance” provision.

FMCSA will also provide guidance on the existing 150 air miles hours-of-service exemption in order to provide clarity to enforcement and industry. The guidance is designed to allow industry to maximize the use of this statutory exemption.  They also advised that citations issued between December 18 and April 1 for violations of the rule will not be posted on the motor carriers’ safety profile.

CURRENT CASES

CARGO

While a trucker/broker was able to avoid the impact of a default judgment it was unable to have a cause of action for fraudulent misrepresentation dismissed.  The Eastern District of New York held that such a claim would not be preempted if the defendant was a broker.  As the status of the defendant, either as a carrier or broker, was still in question, the Court would allow that cause of action to proceed.  (JAS Forwarding v. Owens Trucking, 2017 WL 5054715)

While the defendant may remove a case which seeks damages for loss to goods in transit, it is incumbent upon the defendant to prove that the damages are more than $10,000.  Where the plaintiff alleges damages below that amount the case will be remanded to the state court for adjudication.  (Dees v. Coleman American Moving Service, 2017 WL 4838845)

AUTO

The Eastern District of Louisiana has determined that an action for negligent hiring against a trucking company could not stand when the trucking company had already admitted vicarious liability for the actions of the driver.  No secondary causes of action would be sustained.  (Wright v National Interstate Ins. Co., 2017 WL 5157537)

An insurer was permitted to obtain a default judgement against a motor carrier declaring that a policy did not provide coverage because the auto was not scheduled on the policy. The Court rejected any claim for attorney’s fees and rejected the request to declare that the MCS-90 did not apply to the loss, leaving open the ability for the insurer to provide evidence to support the declaration. (United Financial Casualty Co. v. Knock-Out Transportation, 2017 U.S. Dist. LEXIS 189819)

A trucking company was successful in avoiding damages from a truck accident when the plaintiff, who was operating the other vehicle, failed to have insurance of her own. The Eastern District in California held that under California law a plaintiff could not recover non-economic defenses when she failed to have insurance. (Sykes v Shea, 2017 WL 4923327)

Carmack Amendment preemption for personal injury claims?  The Eastern District of Pennsylvania held that negligence styled claims, which were based upon injuries suffered when cargo fell on him, was preempted.  Since the conduct of the trucking company that damaged the cargo was the sole basis for the claim for personal injuries the Court held that Carmack was applicable and preempted all state law claims. (Kraus v. Iris, 2017 WL 5624951)

When a plaintiff injured during the unloading process names a “john doe” trucking company to avoid statute of limitation issues it may still be prevented from pursuing the trucking company. The District Court in Maryland held that as the plaintiff failed to name the trucking company within the statutory period the Court would not relate the filing date back to the original date where there was no evidence that the trucking company knew or should have known it would be named in a suit. (Daniels v Carter Jones Lumber Company, 2017 WL 5495959)

The District Court in New Mexico refused to allow an insurer to proceed with a declaratory judgment action seeking a declaration that it provided no coverage for a truck accident when factual issues remained to be resolved in the personal injury action. The Court determined that the state court could more fully address many of the relevant issues.  The Court dismissed the action without prejudice.  (Spirit Commercial Auto RRG v. GNB Trucking, 2017 WL 5468670)

Another suit against a broker for personal injury. The District Court in Maryland refused to dismiss an action against a broker arising from negligent selection of a motor carrier who caused a fatal accident. The Court held that while the broker actions were undertaken in Michigan, the accident occurred in Maryland and Maryland law would allow for jurisdiction over the broker and due process would allow a wrongful death action to proceed.  (Vogel v Morpas, 2017 WL 5187766)

A truck driver was granted reconsideration of the dismissal of his suit against a consignee when he was injured when unloading a printing press.  The District Court in Colorado held that under the Uniform Conflict of Laws- Limitations Act, the plaintiff was entitled to borrow the statute of limitations of Minnesota where the accident occurred.  (Jenkins v. Duffy Crane & Hauling, Inc., 2017 WL 4919221)

The Northern District in Texas dismissed a complaint against an insurer seeking unspecified damages by the insured.  The Court held that a complaint which alleges only there were accidents and that the insurer failed to communicate with the insured concerning suits brought against it were insufficient to support a cause of action.  (Petty v Great West Casualty Company, 2017 WL 5068171)

Evidentiary issues abounded in mutual motions in limine in the Middle District of Pennsylvania. Although obviously case specific reviewing the Court’s decision on admissibility of prior violations, pursuit intervention technique maneuvers, hours of service issues and post- accident drug and alcohol testing, or lack thereof, could be helpful in future claims.  (Knecht v. Balanescu, 2017 WL 4883198)

A trucking driver was permitted to proceed with his action against parties involved in the safety of the location of his drop off when he was damaged by electrical wires during the unloading process. The Middle District of Louisiana held that plaintiff alleged sufficient facts to support causes of action against the defendants and that a third party action against the trucking company for indemnity would also stand.  The third party action was based upon the Overhead Power Act which requires parties, apparently including trucking companies, who will be working with 10 feet of power lines, notify the power company of the intended work or be responsible for indemnity.  (Moore v Home Depot, 2017 WL 5180431)

WORKER’S COMPENSATION

An insurer was permitted to introduce a doctor’s report into evidence, despite the argument that it failed to disclose to the claimant that it was an IME and not a medical treatment appointment. The claimant was not permitted to seek additional medical treatment based in part, upon the IME.  (Stoker v Thomas Fowler Randal, Inc., 2017 Ark. App. 594)

The Court of Appeals in Iowa held that a truck workers’ compensation insurer was entitled to reform a settlement agreement that did not reflect the correct numbers for the settlement. The Court rejected the plaintiff’s argument that the mistake was not mutual and therefore not subject to reformation as it was simply a scrivener’s error. (Reihe v Midwest Viking, 2017 WL 5185445)

A worker’s compensation insurer was permitted to seek contribution from a predecessor insurer for certain compensation payments made when it was alleged that injuries from a second accident started with a first accident under the earlier policy.   The 1st Circuit Court in Louisiana held that a 3 statute of limitations would run from the date of the last payment of a benefit made by the defendant insurer when seeking contribution for SEB’s or medical benefits.  (Big 4 Trucking v. New Hampshire Insurance Co., 2017 WL4973110)

The Court of Appeals in Washington upheld the decision of the Commission of the Employment Security Department that the plaintiffs which were all motor carriers who owed unemployment-insurance tax for owner operators leased it to the carriers who then used that equipment under contract to haul freight for that carrier. The Court held that the Federal Aviation Administration Authorization Act did not expressly preempt the tax assessments; neutrality provision in federal regulation on written-lease requirements for motor carriers did not preempt the tax assessments on field or conflict grounds; the employees were not free from control and direction of purported employers and were not customarily engaged in an independently established trade. (Swanson Hay Company v. State of Washington, 2017 WL 4914200)

JURY VERDICTS!

Defense Verdict – Audrey Boyd v. United States of America (U.S. mail truck hit plaintiff) 2017 WL 5242150 – District Court Arizona

Defense Verdict – DeJesus v. Fowlds Brothers Trucking, 2017 WL 5467129 Court of Common Pleas of Pennsylvania, Thirty-eighth Judicial District, Montgomery County

$54,155,900  – Denton v. University Am-Can, 2017 WL 5503339, including $35,000,000 in punitive damages. 2017 WL 4810960- Cook County Judicial Circuit

Again, we wish you all a wonderful and memorable holiday season!