CAB Bits & Pieces February 2019
Good day CAB Nation!
Spring is on its way! Right? Perhaps not. According to Punxsutawney Phil, who did not see his shadow, we should be having an early spring. It seems were all still waiting for that early spring. A reminder of the continued wintry weather was evident Sunday, February 24th when there was a 131 car pile-up in broad daylight between Appleton and Oshkosh, WI. This is a keen reminder that winter is still here and it packs a punch. Freezing temperatures and high winds mixed with snow fall can result in whiteout conditions. If you’re located in a warmer area and winter has been declared over, consider me jealous. That being said, keep working with your customers, associates, family and friends to drive defensively and stay safe this winter.
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This month we report:
Did the Electronic Logging Devices make the Roads Safer? A study recently released indicated that the ELD mandate achieved its goal of reducing Hours of Service violations in the smaller trucking company segment. However, it noted that crashes did not reduce at the same rates as larger carriers and may have actually increased. Additionally, drivers for small carriers seem to have increased their frequency of Unsafe Driving violations in response to the productivity loss as a result of the mandate. This study was based on information early in ELD era. Only time will tell us the long term results of the ELD mandate.
ATRI Releases Top 100 Truck Bottlenecks. The states with the most truck bottlenecks are Texas with 13 and California with 7. The top spot goes to Fort Lee, NJ for I-95 as SR 4. Why are bottlenecks a concern and why do they need to be dealt with? Bottlenecks slow traffic and can cause crashes. Additionally, it causes billions of lost hours in productivity and is the equivalent to roughly 425,000 truckers sitting idle for an entire year. ATRI states this annual study has also resulted in different parts of the country addressing the bottlenecks via construction projects. A complete report can be obtained here.
US DOT’s Office of Inspector General Announced Audit of Federal Motor Carrier Safety Administration’s Medical Certification Program on February 20, 2019. According to FMCSA data, fatalities have increase 11% from 2012 to 2017. The DOT’s OIG also states that since August of 2014, eight criminal investigations have resulted in indictments and six convictions as a result of fraud in the Medical Certification Program. The FMCSA requires that all CDL holders obtain a current medical examiners certificate and submit it to the state of residence. A US DOT physical exam for commercial driver medical certification is valid for up to 24 months. Due to the rise in fatalities and the safety risk posed by fraud, the DOT states they are initiating this audit to evaluate procedures for the following reasons: 1) Oversight of its medical certificate program, including commercial driver medical certificate data quality, and 2) validating information in its National Registry of Certified Medical Examiners. The audit commenced immediately. A full text of the announcement can be found here.
Most Cargo Theft Fell in 2018. However, small scale pilferage grew. According to SensiGuard Supply Chain Intelligence Center, the average value of theft stayed relatively flat, down roughly 2%. Incidents of theft showed a decline of almost 20% compared to the previous year. Half of Cargo Theft took place in California, Texas and Florida. Pilferage is growing as thieves take smaller quantities to gather information about future shipments and to reduce the risk of selling the stolen goods. In 2017, the most frequently stolen item was Home & Garden (17%), followed closely by Food & Drinks (16%) and Electronics (15%).
Drivers Transporting Livestock or Insects: The ELD exemption granted to livestock and insect drivers has been extended through the end of September 2019. This exemption was granted via the omnibus appropriations bill that was signed into law on February 15, 2019. The term “livestock” includes cattle, elk, reindeer, bison, horses, deer, sheep, goats, swine, poultry, fish used for food, and other animals that are part of a foundation herd. Most long-haul interstate motor carriers were required to start using ELDs in place of paper logs on December 18, 2017; the FMCSA temporarily waived that requirement for drivers transporting livestock. Congress then stepped in and has kept the exemption alive through several stopgap spending bills.
Interesting Tidbits:
FMCSA grants American Pyrotechnics Association July 4th Exemption. Rest assured the ELD mandate will not cause any delay in your 4th of July fireworks enjoyment. The drivers may use paper logs instead of ELDs from June 28 through July 8 of 2019 and 2020. The APA requested the exemption due to the potential financial burden place upon motor carriers to install ELD systems for only a short time during the industry’s limited season. The exemption impacts 53 motor carriers across the U.S. A full text of the announcement can be found here.
Colorado State Senate Passes Law that Permits 18-20 Year Olds to Drive in Interstate Commerce…As soon as Federal Law Allows that Activity. SB19-018 “authorizes the department of revenue to adopt rules authorizing a person who is at least 18 years of age but under 21 years of age to be licensed to drive a commercial vehicle in interstate commerce if the person holds a commercial driver’s license and operation of a commercial vehicle in interstate commerce by a person in that age range is permitted under federal law.” One of the sponsors of the bill notes, that nothing really changes with the federal regulations, but he encourages other states to take similar steps to draw attention to the driver shortage. Perhaps other states will follow-suit and create pressure for the federal government to address the driver shortage issue.
Current Cases
Auto
The Court of Appeals in Kentucky dismissed an insurer’s appeal as premature, concluding that an underlying order did not resolve all of the issues on the applicability of coverage under a trucker’s policy. The lower court failed to determine the amount the insurer owed after finding that coverage existed and failed to resolve the claim for defense costs. Great West Casualty Insurance Co. v. Debord, 2018 WL 413663
Plaintiff was unable to sustain the burden of showing that a motor carrier was negligent or wanton following a multi-vehicle accident. The Middle District of Alabama held that the motor carrier involved in an initial accident was not responsible for events which occurred hours later as a result of the traffic jam and clean up caused by the accident. Quarles v. Tennessee Steel Haulers, 2019 WL 758616
A truck driver’s judgment against another motor carrier whose driver injured him was upheld in the Southern District of Texas. The court held that the defendant motor carrier waived the issue of whether the statutory-employee doctrine had been overruled; the jury was not required to find that defendant met the statutory definition of “motor carrier” to support imposition of liability; the state trooper’s expert testimony regarding cause of collision was relevant; the award of $1.8 million for loss of future consortium to wife was not clearly excessive under Texas law, the maximum award of past loss of consortium damages was $409,125; and the trial court was required to apply settlement credit to final damage award. Puga v. RCX Solutions, Inc. 2019 WL 409698
An insurer who issued a surety bond on behalf of a motor carrier was not subject to a direct action in Georgia. The Middle District found that this was strong evidence that the current version of the direct-action statue does not permit a direct action against the issuer of a surety bond. The court refused to stay the action against the motor carrier pending resolution of criminal proceedings related to the accident. Hammonds v. Gray Transportation, 2019 WL 861408
The Court of Appeals of Louisiana reversed summary judgment which had been entered in favor of the defendants on causation following a truck accident. By invoking the sudden emergency doctrine in defending against summary judgment, the plaintiff burden was to present facts to the trial court demonstrating that defendants negligently created a hazard that could not be avoided. He argued that the trailer failed to comply with federal safety regulations which could be a contributing factor. The court held that the evidence presented supported a conclusion that reasonable minds could disagree as to whether and in what proportions the acts and omissions of defendants may have contributed to the accident. Stelly v. National Union Fire Ins. Co., 2019 WL 458476
Whether the plaintiff had a seizure while walking behind a truck, or was struck by the cherry picker extending off the truck, was a question of fact. The Appellate Division upheld the denial of summary judgment to both parties, sending the case to trial. The conflicting testimony of the two eyewitnesses, concerning how plaintiff came to be lying in the intersection with a severe head injury, as well as the conflicting expert opinions, present triable issues of fact and credibility precluding summary judgment. Evans v. Acosta, 2019 WL 469796
The Eastern District in Louisiana upheld the dismissal of a counter-claim by a trucker and its insurer against the plaintiff which alleged that the plaintiff caused the accident and suffered no damages. The court held that the claim was not legally cognizable and that defendants’ claim that the allegations in the complaint were false did not give rise to claim for fraud. Thomas v Chambers, 2019 WL 485781
Over in the Western District of Arkansas the court granted summary judgment to a motor carrier in a suit for personal injury suffered in a truck accident. The court held that the driver was operating under an “Independent Contractor Agreement” with the motor carrier and was responsible for providing drivers and trucks. The court held that the motor carrier was not liable for the actions of the driver. Jordan v. Central Transport, 2019 WL 885917
In a related case the same court held that sanctions which were imposed against a defendant, specifically admitting that the defendant was an agent of the motor carrier, could not be used against the motor carrier. The court reconsidered its prior decision and limited the scope of the sanction. Jordan v. Central Transport, 2019 WL 885916
An employee was unsuccessful in pursuing a claim against a trucking company for wrongful dismissal allegedly because he filed a worker’s compensation claim. The court held that the plaintiff had not demonstrated, as he is required to do, that he was discharged in retaliation for filing a claim for workers’ compensation benefits. Rather, claimant’s discharge resulted from the provision of the collective bargaining agreement, to which claimant was bound, permitting the employer to terminate claimant’s employment for three consecutive days of unexcused absences from work. Romero v. DHL Holdings (USA), Inc. 2019 WL 469515
Be careful to comply with rules when objecting to discovery. The District Court in Florida held that a plaintiff seeking recovery against a trucker was required to produce its private investigator’s records. The court held that the privileges claimed with regard to specific documents must be affirmatively asserted through the filing of a privilege log, or the segregation of documents claimed to be privileged by the non-party for further consideration by the trial court. The failure to do so was fatal to the plaintiff’s objection to the release of the documents. Dade Truss Co. Inc. v. Beaty, 2019 WL 453491
After an extensive recitation on the back log in the Court, and a directive to the parties to contact U.S. Senators to get more judges, the Eastern District of California concluded that it would not dismiss a cause of action for declaratory judgment involving a multi-party truck accident litigation. The court concluded that it was appropriate to allow for a declaratory judgment to determine the apportionment of liability for all interested parties. Gonzalez v. JAG Trucking, 2019 WL 528441
The Southern District in Alabama granted summary judgment to a motor carrier on claims on wantonness and negligent entrustment arising from a truck accident. The court held that there was insufficient evidence of intentional actions rising to a level of wantonness. The causes of action for negligence were permitted to proceed. Figgers v Carroll Fulmer Logistics, 2019 WL 637710
A motor carrier was successful in having an action transferred from the Eastern District of Pennsylvania to the Middle District of North Carolina when the accident occurred in North Carolina. The plaintiff’s only connection to Pennsylvania was her lawyer. Mendoza v. Ferro, 2019 WL 687879
Another plaintiff was unsuccessful in getting a suit for damages from a truck accident remanded back to state court in the Northern District of Virginia. While the defendant did not seek removal for 6 months the court held that it was not reasonably known to the defendant any earlier that the damages were in excess of the jurisdictional minimum of $75,000. Estate of Fraire v. Transam Trucking, 2019 WL 654312
The Middle District in Alabama dismissed causes of action against a trucking company for negligent/wanton hiring of a driver (after plaintiff conceded that claims for negligent and wanton maintenance, inspection, repair, supervision, hiring and training were subject to dismissal). The court held that the simple fact that the motor carrier may not have properly complied with its obligations when hiring the driver did not give rise to a cause of action when that failure had nothing to do with the proximate cause of the accident. Estate of Brown v. Cox 2019 U.S. Dist. LEXIS 26917
The Court of Appeals in Michigan reversed a trial court’s ruling that the plaintiff had failed to establish that he suffered an objectively manifested impairment under Michigan law following a rear end collision by the defendant’s truck. The court held that the plaintiff produced sufficient evidence of injury which may have been proximately caused by the accident to withstand summary disposition. Pelc v. North Star Ranch, 2019 WL 847214
How much information has to be released about a truck driver? The Western District in Missouri held that 5 years of the driver records must be disclosed. The court also held that medical records related to the driver’s CDL certification must also be disclosed. Mitchell v. Mims, 2019 WL 573435
Worker’s Compensation
There was an interesting fight on a worker’s compensation audit claim by an insurer in Illinois. The Appellate Court in the First District vacated a default judgement of almost 3 million dollars which was imposed as a sanction based upon the lower court’s determination that the motor carrier fraudulently back-dated a contract which it claimed showed that it had no worker’s compensation obligation for more than 60 employees. The Appellate Court held there were questions of fact which did not warrant the tough imposition of a default judgment as a sanction. Maybe we will see a decision on how that plays out. LM Insurance Corp. v. Go To Logistics, 2019 WL 454318
Cargo
The Carmack Amendment preempts again (will they ever give up on this issue?). The Eastern District in Kentucky ruled that a plaintiff was permitted to allege only a Carmack claim against a motor carrier when his vehicle was damaged in transit. The court further held that the action was properly removed to federal court and denied the motion to remand. Val’s Auto Sales & Repair v Garcia, 2019 WL 440570
Thanks for joining us,
Jean & Chad
