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Bits & Pieces

December 2020

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Happy New Year to you and yours!!!

The crazy year of 2020 is almost complete…thankfully. I’m not sure how else to refer to what 2020 was. So many of the communications received and sent since March opened with something like this: “I hope you and your family are safe and healthy during this crazy time.” At CAB, we all hope and pray that your 2021 is filled with optimism for a brighter future as we steadily move toward the light at the end of the tunnel and a return to normalcy…whatever that ends up being. Who knows, maybe we’ll have an opportunity to meet in person at a conference, workshop, training or the like. Regardless, congratulations for making it to 2021. Let’s make it the best year ever!

CAB Live Training Sessions

Just a quick reminder that last month’s sessions, CAB for Loss Control and Maximizing CAB List Features for Success were both recorded and are available for viewing at your leisure. We’ve had a number of people reach out to us because they were not able to attend in person. Rest assured, we record all our Live Training Sessions and normally post them within 24 hours. They are available at the link below. Additionally, our complete library of recorded webinars are available in the Tools menu under Webinars or by clicking here. This month we will present two new live training sessions:

Tuesday, January 5th @ 12p EST: Sean Gardner will provide a 30 minute focused VITAL+™ Training. VITAL+™ allows users to go beyond the CAB Report and know the full history with our Vehicle Inspection Tracker & Locator (VITAL) search engine. See historical data on a VINs, license plates, or a specific DOT#. Every inspection, violation, & accident is at your fingertips! Attend this session to maximize your knowledge and use of this great tool! Click here to register.

Tuesday, January 19th @ 12p EST: Mike Sevret, will lead a focused training titled Grow your Business with SALEs™-Targeted Leads Generator. This session will show you how to target companies within your specific appetite with over 100+ filters. Search by insurance renewals, fleet size, commodities, and many other options. Click here to register.

Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers can register for either or both sessions from our Webinars page or by logging in and clicking the link below. https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest focused training topics that you would like to see. We are looking forward to connecting with you during these sessions so don’t hesitate to ask questions!

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CAB’s Tips & Tricks: New Feature in Shippers Section

This month’s enhancement focuses on the Shippers section of the Inspections / Accidents tab in the CAB Report. This section provides a listing of the organization and the number of inspections for each of the shippers for the specific motor carrier. Basically, a listing of all shippers listed on a manifest at the time of inspection. Those familiar with this section will see no change, however when you click on the shipper name, you will be taken to a new screen that will list all the shippers with that name. This motor carrier has 5 inspections for USPS (United States Postal Service).

As the example shows, when clicked, USPS comes back with 7,547 inspections for 1,859 DOT numbers. You will notice there are a total of 159 shippers that contain USPS, most with a specific distribution center and/or city listed.

From this point, you can filter, choose all or select specific shippers to ‘Get DOTs for Selected Shippers’ and you can ‘Analyze Shipper’s Inspections’. Users have requested ways to better understand shippers and how they affect motor carrier inspections. Additionally, it allows for greater understanding of which motor carriers are providing transportation services for specific shippers. From an inland marine and cargo perspective, understanding shippers is a very important part of the underwriting process. Most lines of coverage take shippers into consideration as well. Shipper information is very useful for Loss Control and the Claims Process as well.

NOTE: Prior to this enhancement, when the shipper was clicked, a user would be sent to a Google search for that shipper. That functionality is still available if you highlight the shipper and use the right click function. From there you will be able to conduct a web search.

As with all of our tools & enhancements, we strive to present the information in a manner that will help provide clarity and ease of use. The team at CAB is continually striving to improve our tools and resources to create value and efficiency for our users. 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:

FMCSA Issues Final Rule to Streamline Process to Obtain CDL: The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today announced a final rule to streamline the process for men and women interested in entering the trucking workforce. The new rule will allow states to permit a third-party skills test examiner to administer the Commercial Driver’s License (CDL) skills test to applicants to whom the examiner has also provided skills training. Federal rules previously prohibited a third-party CDL skills instructor who is also authorized by the state to administer the CDL skills test from performing both the instruction and the qualifying testing for the same CDL applicant. The final rule announced today eliminates that restriction and permits states, at their discretion, to allow qualified third-party skills trainers to also conduct the skills testing for the same individual. For additional information on the Final Rule, click here.

CVSA Releases 2020 International Roadcheck Results. Out of Service Rate was 20.9%: More than 50,000 North American Standard Level I, II, III and V Inspections were conducted throughout Canada, Mexico and the U.S. during the Commercial Vehicle Safety Alliance’s (CVSA) three-day International Roadcheck commercial motor vehicle and driver inspection and enforcement initiative. The overall vehicle out-of-service rate in North America, for Level I, II and V Inspections combined, was 20.9%. This year’s International Roadcheck took place Sept. 9-11, 2020.

For additional detail and specifics related to North America, U.S., Canada and Mexico results, click here.

Traffic Fatalities Reduced for Third Consecutive Year in 2019: The U.S. Department of Transportation’s National Highway Traffic Safety Administration released its annual 2019 traffic fatality data from the Fatality Analysis Reporting System (FARS). Traffic deaths decreased nationwide during 2019 as compared to 2018, and alcohol-impaired driving fatalities decreased to the lowest percentage since 1982. There were 36,096 fatalities in motor vehicle traffic crashes in 2019. This represents a decrease of 739 (down 2%) from the reported 36,835 fatalities in 2018, even though vehicle miles traveled (VMT) increased by 0.8%. As a result, the fatality rate for 2019 was 1.10 fatalities per 100 million VMT – the lowest rate since 2014, and down from 1.14 fatalities per 100 million VMT in 2018.

Fatalities decreased in most major traffic safety categories in 2019 compared to 2018, including:-Passenger vehicle occupant fatalities (630 fewer fatalities, 2.8% decrease)-Pedestrian fatalities (169 fewer fatalities, 2.7% decrease)-Pedalcyclist fatalities (25 fewer fatalities, 2.9% decrease)-Alcohol-impaired driving fatalities (568 fewer fatalities, 5.3% decrease)-Urban fatalities (813 fewer fatalities, 4% decrease)

For the complete press release, click here.

President-elect Biden picks former mayor Buttigieg to lead U. S. Department of Transportation: Former presidential hopeful and South Bend, Indiana, mayor Pete Buttigieg will head up the Department of Transportation under the Joe Biden administration. The post would be Buttigieg’s first federal position should he be confirmed by the Senate. While running for the Democratic Nomination, Buttigieg proposed a $1 trillion infrastructure plan. Part of his proposed plan at the time was to require DOT to propose a vehicle miles tax (VMT) to replace the gas tax to help fund the Highway Trust Fund. His plan also included provisions for road safety to work toward reducing traffic fatalities. For more information on the nominee, click here.

68% of CDL Drivers with Drug & Alcohol Clearinghouse Violations Have Not Started Return to Duty Process: If a driver has a drug and alcohol program violation recorded against him or her in the Clearinghouse, that driver must be removed from safety-sensitive functions, including operating a commercial motor vehicle, until he or she has completed a return-to-duty (RTD) process. Select milestones of a driver’s RTD process are recorded in the Clearinghouse. The table below provides a snapshot of the number of drivers who had an open or resolved RTD process in the Clearinghouse as of December 1, 2020. Almost 42,000 drivers are in prohibited status and 32,000 have not started the Return to Duty Process. Hopefully this is a sign that the Clearinghouse is working. Specifically, identifying drivers that should be prohibited and keeping them from operating CDL vehicles until they have completed the Return to Duty Process. To review the November 2020 monthly report, click here.

FMCSA Proposes to Eliminate “Duplicative” Regulation Requiring CMV Drivers toProvide List of Convictions Annually: A notice of proposed rulemaking is scheduled to be published in the Federal Register on Monday, Dec. 14. “FMCSA expects that removing the requirement for drivers to provide a list of their convictions for traffic violations to their employers annually would reduce the paperwork burden on drivers and motor carriers without adversely affecting commercial motor vehicle safety.” Under current regulations, at least once every 12 months an interstate commercial motor vehicle driver must provide the motor carrier a list of all violations of motor vehicle traffic laws and ordinances (not including parking tickets) of which the driver has been convicted or for which the driver has forfeited bond or collateral during the past 12 months. The Notice of Proposed Rulemaking can be found here.

Transportation has its #2 Monthly Jobs Increase on Record: The transport sector gained 145,000 jobs in November, according to the Bureau of Labor Statistics. This marks the sixth consecutive monthly increase after four consecutive decreases, including a historic monthly drop in April. The increase is the largest since September 1997, when transportation employment went up nearly 180,000. That was the result of 185,000 United Parcel Services Teamster drivers walking off the job the previous month. For more BLS information on the Impact of the coronavirus on the employment situation, click here.

CASES

AUTO
The Northern District of Texas concluded that a motor carrier would not be permitted to introduce testimony from a police officer as to the cause of the accident. The court held that the officer was not qualified to opine on the physics of the accident to support a conclusion that the plaintiff hit the motor carrier when she entered his lane of travel. Bailon v. Landstar Ranger, Inc., 2020 WL 7046852

The Southern District of Texas granted partial summary judgment to a trucking company and its driver on claims of gross negligence arising from a truck accident. Plaintiff could not prove that the driver’s conduct evidenced a high level of disregard for the plaintiff or that failure to maintain a driver qualification file presented an extreme degree of risk by his employer. Tijerina v. Guerra, 2020 WL 7632259

Questions of fact remained on the issue of whether the truck driver was an employee of the trucking company at the time of an accident. The Eastern District of Missouri agreed that the defendant motor carrier had raised legitimate concerns on the issue and that the plaintiff had not proven his status as an employee at the time of the accident. Morris v. WTS Express, 2020 WL 7397000

A plaintiff in the District Court in Maine was not granted summary judgment on a rear end collision by a truck when there had been no discovery on the unexplained collision. Plaintiff would have to wait it out. Yerramsetty v. Dunkin Donuts, Inc. 2020 WL 7395138

A judgment of almost 17 million was upheld against a trucker in the Court of Appeals in Texas. The court rejected all 12 arguments raised by the motor carrier, whose vehicle had jackknifed into the roadway, causing a multivehicle accident. Gregory v. Chohan, 2020 WL 7022378

An effort to get a quick summary judgment on a bad faith suit was denied to the insurer in the Southern District of California. Suit was filed by the shipper, who hired the motor carrier who had the accident. While the insurer settled the case against the trucker and its driver, that might not be enough to relieve the insurer from an obligation to the shipper, who also sought coverage under the motor carrier’s policy. Summary judgment before discovery was completed was not an option. Skanska v. National Interstate Insurance Co., 2020 WL 6889204.

Under Kentucky law a shipper is not liable for the negligence of an independent motor carrier that it hired to transport cargo. The plaintiff’s additional argument, that the shipper had a duty to ensure that the tractor-trailer was fit for travel before it left the facility was also rejected. Stapleton v Vicente, 2020 WL 7028705

Over in the Court of Appeals in Wisconsin the court upheld dismissal of only some causes of action asserted an insurer under a direct action statute. The court held that while the policy excluded anyone using an auto under a written trailer interchange agreement (which applied to some of the proposed insured) and claims for negligent entrustment and concerted joint action were insufficiently pled, there remained material questions of fact on the question of whether one insured was operating as a broker or a carrier. If a carrier, liability could exist under federal law, keeping the insurer on the hook. Rogers v. Great West Casualty Company, 2020 WL 7250907

Plaintiff was permitted to amend a complaint to allege a claim for punitive damages based upon the actions of the truck driver. Allegations that the driver drove while under the influence of medication, which rendered her incapable of safely operating a motor vehicle, operated a motor vehicle with impaired hearing and her alertness impaired and drove in excess of the maximum allowable hours, all in violation of federal regulations was enough to allow the claim for punitive damages to proceed. The claim for spoliation of evidence was dismissed as the Western District of Kentucky agreed that it did not support an independent claim under Kentucky law. Hamernick v. Daniels, 2020 WL 6946451

The Court of Appeals in Michigan agreed that PIP benefits would not be afforded to plaintiff under his own policy when plaintiff and his son-in-law, at the time of the injury, were participating in the activities of collecting, removing, and transporting hurricane-related debris. Even though parked at the time of the accident the court concluded that the injury was closely related to the transportational function of the vehicle. LaFave v. Progressive Michigan Insurance Co., 2020 WL 6938421

A truck broker bore no liability for a truck accident in the Middle District in Georgia. The court held that the broker/carrier agreement confirmed that the motor carrier was an independent contractor and there was no evidence of an agency relationship between the two. Castleberry v. Thomas, 2020 WL 7048280

Such interesting stories in some of these cases. In a nutshell – trailer gets stuck on an overhead wire. A third party climbs up to remove the wire with a pole. A second vehicle comes down the road and also gets stuck on the wire, which yanks the wire, causing the person on top of the trailer to fall off. Who is responsible? The Court of Appeals in Ohio held that the first motor carrier could not have foreseen that anyone would climb onto a truck cab in an effort to free the cable line caught on his trailer without any obligation to do so. He was not responsible. However there were questions of fact as to whether the second driver was responsible and summary judgment was denied to that carrier. Rolling v. Kings Transfer, 2020 WL 71090195

Plaintiff’s motion to remand was granted by the Central District of California when the suit named a truck driver who resided in the state of California where plaintiff’s suit was initially commenced. Even though it was unclear whether that driver was involved in the multi vehicle accident the defendant was unable to prove fraudulent joinder by clear and convincing evidence. Gutierrez v. Whitley, 2020 WL 7056021

When the plaintiff, a truck driver, struck another tractor in the rear, the plaintiff went on the attack claiming that the defendant driver was grossly negligent in operating a vehicle without lights. The Middle District in Pennsylvania refused to grant judgement to the defendant driver on a punitive damages claim, recognizing that there were sufficient facts to support the possibility of a punitive damages claim. The vehicle owner was entitled to judgment as there was no evidence that it was aware of a defect in the vehicle. Shelton v. Gure, 2020 WL 7059634

A Virginia based motor carrier was found to have a principal office in Dallas County, Texas for venue purposes. The Court of Appeals in Texas concluded that the regional employees in Dallas were sufficiently higher level employees to support a conclusion that they were decision makers. Roach v Jackson, 2020 WL 7258061

Fighting expert testimony is always a critical part of litigation. The Western District in Texas, in addition to addressing the admissibility of medical experts, concluded that plaintiff’s safety expert would be permitted to testify generally about Federal Motor Carrier Safety regulations. He was not qualified to testify that deviation from those regulations was a cause of the crash, nor could he testify as to the contractual relationship between the parties to the transportation. Marchlewicz v. Brothers Xpress, Inc., 2020 WL 7319550

Do you have 30 days to remove from the date of service or the date of receipt of the suit? The Eastern District of Virginia addressed the split of authority on the issue, concluding that the receipt of the suit by the truck driver was the appropriate starting date when he was not home when service was made. It did not help him as he missed the 30 days for that too. Brown v. Nikloads, LLC., 2020 WL 7130786

How far can an accident Reconstructionist go when testifying about the effects of an accident? The Northern District in Alabama concluded that the defendant’s expert, Dr. Lars Reinhart, could testify on the biomechanics and the accident reconstruction, but could not opine on the medical causation of plaintiff’s injuries. Johnson v. ABF Freight System, Inc., 2020 WL 7320994

When the parties are pointing fingers at each other summary judgment is not going to be granted. The Western District of Louisiana held that determining whether the plaintiff or the motor carrier was at fault for a rear end collision when the plaintiff was driving more than 50 miles an hour under the speed limit was a question to be reserved for the jury. Nash v. Badgett, 2020 WL 6928321

Whether the defendant truck driver was negligent in side-swiping the plaintiff’s stopped vehicle, or the plaintiff pulled out into the defendant’s vehicle remained a question of fact precluding summary judgment. The Supreme Court in New York concluded that there were questions of fact on that issue, as well as whether the plaintiff suffered a serious injury. Gibbs v. Navillus Tile, Inc., 202 N.Y. Misc. LEXIS 10719

New Jersey law requires a commercial motor vehicle carrier to provide the minimum insurance coverage amount of $750,000, when engaged in interstate or intrastate commerce, as prescribed by N.J.S.A. 39:5B-32 and N.J.A.C. 13:60-2.1, even when an individual is not listed as a covered driver on the policy. The Appellate Division reversed the trial court ruling which limited the exposure to $35,000.The policy did not contain an MCS-90. Rafanello v. Taylor-Esqivel, 2020 WL 6833857

When the auto liability insurer settled a claim for policy limits, protecting the motor carrier and its driver, it still faced a potential claim from the owner of the tractor-trailer. The Southern District of Indiana denied the plaintiff’s request to stay the action pending the resolution of the personal injury action, concluding that the resolution of the coverage case was not dependent upon the outcome of the underlying action. Penske Truck Leasing Co., v, Westfield Ins. Co., 2020 U.S. Dist LEXIS 228661

CARGO
Preemption again! The Northern District in Texas dismissed all state claim claims against a household goods carrier for losses arising from an interstate move, except for claims for conversion and overcharges. Hilgers v. VIP Moving & Storage, Inc., 2020 WL 7059589

A motor carrier was permitted to file a petition to record the testimony of a driver in anticipation of a suit for cargo damages. The Southern District of Ohio agreed that the fact that the driver was diagnosed with ALS and has stopped working was sufficient to warrant the testimony of the driver being preserved even though a suit for recovery for the cargo loss had not yet been filed. Go-To Transport v. DMAX, Ltd., 2020 WL 7237282

State law breach of contract claims asserted against a broker was not preempted by the Carmack Amendment. The Northern District of Illinois remanded the suit for cargo damages filed against the broker back to state court concluding that it had no jurisdiction over the state law claims. Quality King Distributors, Inc. v Celtic International, 2020 WL 7260799

When the plaintiff was pursuing numerous defendants for recovery for the non-delivery of a shipment of nuts the Eastern District of California denied a request for a default judgment against one of the defendants. As the remaining defendants disputed liability for the loss, contending that the plaintiff was partially responsible for the non-delivery, the risk of inconsistent verdicts was a basis for denial of the default judgment early in the litigation. Amerisure Insurance Company v. R&L Carriers, Inc., 2020 WL 4788914

When a third party plaintiff could not establish that it was acting as a shipper or consignee during the transportation it lacked standing to bring an action under the Carmack Amendment. In addition, state law claims asserted against the third party motor carrier were subject to dismissal because the only valid claim against that party was under the Carmack Amendment. Tokio Marine Am. Ins. Co. v. Jan Packaging, 2020 U.S. Dist. LEXIS 240796

If you keep pushing forward, you may ultimately get a judgment. The Middle District in Florida, after 4 attempts by the plaintiff, finally awarded a default judgment against a motor carrier. A frozen shipment of orchids in an interstate transport finally permitted a judgment under the Carmack Amendment. 673753 Ont. V. Hdz Logistics, 2020 U.S. Dist. LEXIS 230702

TOW BILLS

A trucking company was found liable for fees and expenses when it sued a towing company alleging that tow fees were excessive. The Court of Appeals in Ohio found that the suit was frivolous as the charges were found reasonable and customary. The court rejected the arguments appealing the trial court’s decision that sanctions for filing the suit were warranted. A.D. Transport Express, Inc. v. Lloyds Towing Service & Sales, LLC, 2020 WL 7260045

Thanks for joining us,

Jean & Chad

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