CAB Bits & Pieces December 2019
Happy Holidays!
No matter how you celebrate the season, we want to wish you a Happy Holiday! Looking back on 2019, I’m amazed at all we’ve accomplished. From new products to system enhancements, we hope everyone has enjoyed the ride as much as we have. We’re excited about CAB’s future and we can’t wait to share the innovation with you in 2020. From our family to all of you, we wish you a blessed season and a happy new year!
This is Jean, stepping in on Chad’s section of the Bits to extend my personal well wishes to you all. I would like to take a moment to thank the Insurance Industry Charitable Foundation. Food insecurity is near and dear to my heart and I volunteer on the board at Fulfill, the Food Bank of Monmouth and Ocean Counties. This month Fulfill was awarded a $50,000 grant from the organization to fund a Backpack Program to feed hungry children. You should be proud to be part of an organization that does this. If you would like to see what that money is funding you can view this. https://www.facebook.com/fulfillnj/videos/1249018068763093/
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Here’s to a fantastic 2020!
CAB’s Tips & Tricks: Crash Determinations
As many of you are aware, the FMCSA conducted a Crash Preventability Demonstration Program from June 1, 2017 through July 31, 2019. The Crash Preventability Demonstration Program allowed motor carriers or drivers involved in certain crash types (8 types) to submit Requests for Data Review through FMCSA’s DataQs system. Crashes must have occurred from June 1, 2017 through July 31, 2019. For those crashes found to be Not Preventable, FMCSA displays, to enforcement users and carriers logged into their own profiles, the Crash Indicator Behavior Analysis Safety Improvement Category (BASIC) percentiles in SMS with and without the crashes. More information on this program can be found here.
On August 5, 2019, FMCSA published a proposal for a new long term program in the Federal Register that included 15 crash types. The comment period closed on October 4, 2019. The Agency will review all submitted comments to determine any needed changes to the program and will complete required changes to the DataQs system.
A second Federal Register notice will be published to announce the start of the new program. The new program will retroactively accept eligible crashes that occurred on or after August 1, 2019. As a result, all eligible crashes that occurred after the close of the Demonstration Program may be submitted to the Agency when the new program begins.
In preparation for the new, permanent Crash Preventability Determination Program (details) slated to begin in early 2020, we have enhanced our system to reflect when a crash has been determined, by the FMCSA’s DataQ process, to be “Not Preventable” by adding a Crash Determination column. This column can be found in the CAB Report by clicking the Out of Service/SAFER tab and scrolling down to Accident Details (see below).
If your subscription has access to the BASICs Calculator feature, you will also be able to filter to recalculate the Crash BASIC Score by removing the Not Preventable Crashes via the Inspections Tab.
We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are customer driven. Our goal is to help you Make Better Decisions!
This month we report:
2019 Trucking Company Failures at Triple the Rate of Previous Year: Many have heard the recent news about Celadon Group, one of the largest trucking operations in the country, declaring Chapter 11 Bankruptcy during the last weeks of December, but that is just the last in a string of shutdowns during 2019. Other notables included New England Motor Freight, HVH Transportation, Falcon Transport and LME. It is estimated that 24,000 trucks were removed from the nation’s capacity as almost 800 companies failed. Some feel the issue is related to spot pricing, which has dropped dramatically since the highs of 2018. Other factors in recent closures like Hendrickson Truck Lines were, in part, the result of unanticipated maintenance costs related to bad lease deals. All in all, 2020 may be shaping up to be another difficult year in the industry as the driver shortage, and labor laws designed to protect contract workers from being misclassified could contribute to additional closures.
As a Final Reminder, Effective December 16, 2019 Fleets Must Convert to ELDs and are no Longer Allowed to use EOBRs: The FMCSA and CVSA have made it very clear that there was no soft enforcement period planned the the EOBR sunset date came and went. We have now completed Phase 2 of the FMCSA’s implementation timeline as of December 16th of 2019 and we are fully in Phase 3 or the Full Compliance Phase. Phase 1 started February 16th, 2017 via awareness and training, and the phased-in compliance timeline began almost 2 years ago. The FMCSA provided ample time for the adjustment period and a website is available to identify complaint ELD providers, learn about the rule, interactive training courses, technical specifications and the like. Click here to access the FMCSA’s ELD website.
Roadway Incidents were the Leading Cause of Workplace Death from 2011-2016: Transportation incidents were the most common fatal workplace injury event from 2011 to 2016. Violent events were the second most common event type, followed by falls, slips, and trips. Of those fatal Transportation Incidents, Roadway Incident Involving Motorized Land Vehicle was the leading fatal cause, followed by Pedestrian Vehicular Incident. This continues to be an unsettling trend for our industry. Increased efforts should be made to provide drivers with the tools to drive defensively even as traffic congestion continues to rise. Additionally, seatbelt use and monitoring should be a major emphasis of a good risk management program. For more information, click here.
It’s that time of year…Cargo Theft Season: Christmas season means increased risk of cargo theft. It is estimated that roughly two thefts occur per day during the holiday season, a 20% increase over the remainder of the year. During this time the main targeted item is electronics. Safety recommendations for drivers and motor carriers include:
- Verify the authenticity of all shipment related activities during these periods – particularly any entity which has been engaged to either move or store a shipment. Driver and business verification, prior to releasing any shipment, is paramount.
- Communication between drivers and shippers needs to be firmly established and regularly maintained during shipments over these periods.
- Truck stops, highway rest areas and distribution centers are frequent targets for cargo thieves – not only traditionally but more so over holiday periods. For that reason, any location where cargo would either intentionally or unintentionally come to rest – even for brief periods of time – should be as secure as possible.
- If a cargo conveyance must be left unattended for any period of time it should be made as secure as possible. Theft-resistant locking/sealing mechanisms for tractors, trailers and cargo compartments; disabling technology for the vehicle’s power units or trailer movements; parking vehicles and/or cargo compartments in a fashion which make access as difficult as possible – are all things worthy of strong consideration.
The Driving Profession is one of the Deadliest Jobs in America : There were 5,250 fatal work injuries recorded in the United States in 2018, a 2 percent increase from the 5,147 in 2017, the U.S. Bureau of Labor Statistics reported today. The fatal work injury rate remained unchanged at 3.5 per 100,000 full-time equivalent (FTE) workers. The lead fatal event or exposure, transportation incidents, remained the most frequent type of fatal event at 2,080, accounting for 40 percent of all work-related fatalities. Based on occupation, driver/sales workers and truck drivers had the most fatalities of any broad occupation group at 966. Among all detailed occupations, heavy and tractor-trailer truck drivers had the most fatalities at 831. For more information on the National Census of Fatal Occupational Injuries in 2018, click here.
Updated BASICs Percentiles as of 11/29/19 for All Motor Carriers Operating in the U.S.:
Data Note: For each BASIC category and power unit range, a) the percentage of carriers in different percentile ranges out of carriers with a percentile, and b) the percentage (out of all carriers) of carriers with a percentile, and of carriers without a percentile due to each of the following three reasons: 1) carrier had no relevant inspections, 2) carrier had no relevant violations, and 3) carrier had violations, but they were too few or occurred too long ago to get a percentile. For the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included.
CASES
Auto
The District Court in Florida upheld a trial court determination that a trucking company was not responsible for negligent repairs on a trailer performed by a third party. The tire came off the trailer injuring the plaintiff. The court agreed that repair of the trailer was a delegable duty. The court noted that the driver of the tractor trailer had complied with the pertinent federal trucking regulations and that nothing required a carrier to disassemble a wheel or hub during an inspection to verify that a qualified mechanic performed appropriate repairs. Tuong Vi Le v. Colonial Freight Systems, 2019 WL 6519440
The Southern District in Ohio held that neither plaintiff nor counsel could disparage defendants because the driver was not present at trial. The plaintiff initially agreed that the defendant truck driver would not have to appear at trial, as liability was accepted, reneging on that agreement would not help him when the driver could not be located for trial. . However, the jury should be informed why he was not present, i.e., because he is a Canadian resident, because his breach of duty was stipulated, and because counsel previously agreed he need not participate at trial. Anca v. Gemini Transport, LLC, 2019 WL 6324541
When the trucking defendants are not residents of the state of Texas it becomes even more difficult to argue for change of venue. The Western District of Texas held that the trucking defendants had not shown “good cause” for transfer of the case to the Waco Division. Defendants had the burden to “clearly demonstrate that a transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’ As all of the relevant litigation witnesses and information was basically in between the two proposed venues the plaintiff gets the right to select the venue. Frischhertz v. King, 2019 WL 6606532
The responsibility of pilot cars when there is a loss is always an issue. The Court of Appeals in Michigan reversed a trial court ruling granting summary judgment to the insurer of a pilot car in a suit seeking property damages done to a DOT infrastructure when the transporting vehicle hit the bridge. The DOT, which was permitted to directly proceed against the insurers, filed against both the motor carrier and the pilot car insurers. The court held that pilot car should be deemed to have been involved in the accident and sent the case back to the trial court for further proceedings. DPT v. National Interstate Insurance Co., 2019 WL 6339911
Ryder System, as the owner of a tractor involved in an environmental spill, was entitled to seek full indemnity from the trucking company who had the accident. The Middle District in Alabama held that they were entitled to indemnity under federal statute and further held that the contractual indemnity under the lease also permitted recovery of costs and fees. Ryder v. Charleston Aluminum, 2019 WL 6652510
The Eastern District in Louisiana refused to stay a personal injury action against a trucking company pending resolution of a criminal investigation. The motor carrier defendants contended that the plaintiffs were part of a scheme to rig many accidents to collect damages and that a federal investigation is underway. The court determined that it would proceed with the case on this particular accident and not wait to see if the criminal venue yielded any evidence of fraud. Collins v. Benton, 2019 WL 6728334
The dismissal of the complaint was the appropriate remedy according to the Eastern District of Virginia. When the plaintiffs filed suit in another state, which was dismissed for failure to prosecute, the plaintiff could not rely on that filing date to toll the statute of limitation on a truck accident suit. The court also dismissed a cause of action for loss of consortium because the state does not recognize that as a viable claim. Sirak v. Aiken, 2019 6689912
A truck driver was killed when a third party negligently operated a fork lift unloading the truck and litigation commenced. The Superior Court in New Jersey concluded that neither the premises owner nor the general contractor who hired the unloader was liable for the injuries, affording summary judgment to both of them. The court held that the general contractor was not obligated to check the credentials of every employee of the unloading company. The premises owner also bore no liability as it did not exercise any control or have any knowledge of a potential problem. Chetwynd v Diversified Rack & Shelving, Inc., 2019 WL 6837765
Over in the Court of Appeals in Michigan another truck driver was successful in reversing summary judgement which was given to a shipper following an incident in which an overhead door struck the driver. The court held that the trial court failed to consider whether the entry to the chemical fixation building through the rail door presented a dangerous condition subjecting invitees to an unreasonable risk of harm despite the proper operational functionality of the rail door. Griad v. EQ Detroit, Inc. 2019 WL 6888648
A number of driver cases this month. Another trucker lost his right to proceed in his claim for personal injuries because of his failure to exercise reasonable diligence in serving the defendant. The truck driver had been struck by a vehicle which had originally been struck by the defendant’s vehicle. Plaintiff failed to establish reasonable grounds to avoid the failure to prosecute assertion. Huskins v. Tapley, 2019 IL App 4th 190292-U
A train conductor injured by a derailment when a truck got stuck on the tracks was not permitted to pursue claims for punitive damages or negligent training, hiring or supervising against the trucking company. The Southern District of Mississippi dismissed those claims where the motor carrier conceded vicarious liability. Myers v. Legacy Equipment, 2019 WL 6794194
Strategy in the delay in releasing discovery information does not always work. The Western District of Missouri sanctioned a defendant for failing to fully disclose information on trucks which may have been operating at the location where the loss occurred. The court held that “both the initial and the amended complaint allege Defendant is liable because it is responsible for the driver’s actions. Consequently, any evidence—such as GPS data—that tends to show Defendant did not have any trucks or trailers in the area at the time of the accident, and so by inference no truck drivers it was responsible for in the area, would be information Defendant might use to support its claims or defenses under either the initial or amended complaint.” The defendant was precluded from producing relevant witnesses because of the delay. Trekell v. Target Corporation, 2019 WL 6868963
No success for a trucking company which sought to avoid liability for the actions of an intoxicated truck driver. The court held that although the driver consumed alcohol before driving his tractor trailer in defiance of the motor carrier’s rules, he was on his route to deliver a load and did not deviate from his route and expressed no motive other than to complete his task. He was acting in the course of his employment and therefore the trucking company would be liable for his actions. The court also held that the claims for punitive damages would stand. Laporsek v. Burress, 2019 WL 6718098
A motor carrier was not permitted to remove a case to federal court when it waited to receive a demand in excess of the $75000 jurisdictional limit to file for removal. The Northern District in Alabama held that it facially apparent from the complaint that the damages were in excess of $75,000, even when an amount was not delineated. The case was remanded back to state court. Fuqua v. D&M Carriers, LLC, 2019 WL 6918297
In a declaratory judgment action seeking to compel a non-trucking liability insurer to defend an accident the District Court in New Jersey concluded that the commercial auto insurer had failed to plead a plausible complaint against the non-trucking insurer and dismissed the suit. Leave to amend was, however, given to the plaintiff. Prime Property & Casualty Insurance Co. v. Freightways Logistics, LLC. 2019 WL 6907532
Cargo/Physical Damage
A claim against the insurance broker for failing to make sure that coverage remained in place for physical damage failed in the Appellate Division in New York. When the insurer was found to have correctly cancelled the policy for non-payment the broker was held to have no duty to make sure that the plaintiff received the notice of cancellation and ensure that coverage was obtained elsewhere. MAAD Construction v. Cavallino Risk Management, 2019 WL 6720471
A claim arising from the interstate portion of an international transport was held subject to the Carmack Amendment in the Eastern District of Kentucky. The court held that the motor carrier could be liable, even though it may not have picked up all of the goods because it was supposed to have received them. The court dismissed the state law claims and the claim for attorney’s fees. Next F/X, Inc. v. DHL Aviation, 2019 WL 6868961
Interesting discovery issue addressed in a Carmack case in the District Court in North Dakota. The court held that the plaintiff, who was an assignee of the cargo claim, was not obligated to produce discovery which was only in the hands of the assignor. The Federal Rules of Civil Procedure requires a party only to product documents in their custody. Joe Whatley Jr. v. Canadian Pacific Railway, 2019 WL 6972405
Thanks for joining us,
Jean & Chad
