CAB Bits & Pieces February 2020

Happy winter, but hopefully not much longer!

Well, at least for a little while longer. Earlier this month our friend Punxsatauney Phil predicted an early spring declarding “Spring will be early, it’s a certainty.” I, like many others, are optimistic that he’s right and we can look forward to warmer temperatures and clear roads for all the transportation companies out there. Even though the weather is cold, our crack team of IT Professionals and Programmers continue to enhance CAB’s functionality. Continue reading for new training opportunities, tips & tricks, newsworthy items and industry related court cases that could affect you.

Live Training Sessions

Apparently our live training sessions were sorely missed. Mike and Chad, respectively, had plenty of company as they did the scheduled training last month. This month we will once again have general CAB training on March 10, 2020. We will also have a second shorter presentation (30 minutes) which will focus only on the use of the Basics Calculator. That session will be held on March 17, 2020, St. Patty’s Day! Unfortunately we could not find a leprechaun to provide the training so it will be left to one of the team! You can register for either session from our Webinars page or by logging in and clicking this link https://subscriber.cabadvantage.com/webinars.cfm

Please feel free to suggest some focused training that you might want to see. We are looking forward to connecting with you during these sessions. Do not hesitate to ask questions.

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CAB’s Tips & Tricks: Inspections / Accidents tap sort functionality

Recently, we’ve heard from a number of users on possible enhancements to the Shippers and Vehicles sections of the Inspections / Accidents tab. Enhancements that would be useful when reviewing a larger motor carrier where there may be numerous shippers and vehicles to evaluate. We pride ourselves on hearing your requests and moving quickly to provide the best solutions for you. We listened and enhanced!

First the Shippers section. When you first land on the page, the shippers will be sorted alphabetically. We’ve now added a button to sort the shippers by “#Insp” or number of inspections. Clicking on this button will quickly allow you to understand the shippers that the motor carrier is working with most frequently. An example is below.

We’ve added similar functionality to the Vehicles section just below the Shippers section. When you land on the page, the VINs will be sorted alphanumerically. Now in addition to VINs, you can also sort by Crash(es), OOS Violation(s), Shared Vehicles & Last Inspected. When clicking the sort button it will change the order by the desired criteria for both Power Units and Non Power Units. This new functionality will allow users to quickly identify and review the VINs based on whichever criteria is most relevant. The Example below is sorted by OOS Violations.

We at CAB are constantly striving to improve our tools and resources to create value 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:

American Transportation Research Institute (ATRI) Releases Top 100 Truck Bottlenecks for 2020: Unfortunately, not much has changed from previous years as the Intersection of I-95 and State Route 4 in Fort Lee, NJ continues to be the #1 freight bottleneck in the country. Locations with major congestion were found to have average daily speeds of 45 mph or less. According to the Federal Government, traffic congestion costs commuters almost $180 billion in wasted time and fuel in 2017. The following areas round out the remaining top 10 Truck Bottlenecks for 2020: #2) Atlanta: I-285 at I-85, (North) #3) Nashville: I-24/I-40 at I-440 (East) #4) Houston: I-45 at I-69/US 59 #5) Atlanta, GA: I-75 at I-285 (North) #6) chicago, IL: I-290 at I-90/I-94 #7) Atlanta, GA: I-20 at I-285 (West) #8) Cincinnati, OH: I-71 at I-75 #9) los Angeles, CA: SR 60 at SR 57 #10) Los Angeles, CA: I-710 at I-105. For a complete list with all 100 Bottleneck locations, click here.

FMCSA HOS Rule Changes Still Under Review: Joe DeLorenzo, an FMCSA Official noted that potential changes to the hours of service (HOS) rules continue to be under review. He identified the public comments solicited last year as being very helpful. Currently there is no timetable, but the HOS Rule remains a top priority for the acting administrator Jim Mullen. Last summer the FMCSA proposed five changes to the HOS rules involving tweaks and increased flexibility to different areas of the rules. Mr. DeLorenzo noted that the final rule could end up with most people still being a little unhappy and that could be a sign that the agency got the rule changes right. You can review the 5 proposed HOS rule changes here.

Central Analysis Bureau Calculates Crashes Per Million Miles Traveled: This table shows, for each power unit range, the total number of different types of federally reportable crashes, and the associated rate per million miles traveled. Crashes include those that occurred during the 12 month period ending on January 31st, 2020. Power unit and mileage data come from the most recent data we have for each carrier. Only carriers that were active during the past 12 months are included.

FMCSA’s Drug & Alcohol Clearinghouse Identifies Almost 8000 Substance Abuse Violations in the First Weeks of Operation: The 8000 positive substance abuse tests have come since January 6, 2020. The clearing house has more than 650,000 registrants. “We’ve seen encouraging results from the Drug and Alcohol Clearinghouse, but there’s still work to do to ensure we identify more drivers who should not be behind the wheel. The clearinghouse is a positive step, and the Agency continues to work closely with industry, law enforcement, and our state partners to ensure its implementation is effective,” said FMCSA Acting Administrator Jim Mullen. It is important to note that these violations were not previously reported and prior to the Drug & Alcohol Clearinghouse, would not have been known. For the complete press release, click here.

Government Issues CBD Warning for DOT Regulated Safety Sensitive Employees: The accessibility and use of CBD products and oils has exploded in the last year. It is important for all employers and safety-sensitive employees (CDL Drivers, pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, ship captains, among others) to know: 1) The Department of Transportation requires testing for marijuana and not CBD. 2) The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”* Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label. 3) The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products. The complete notice can be reviewed here.

CVSA’s International Road Check Set for May 5-7: This year’s emphasis will be on Driver Requirements. The 202 International Roadcheck: Driver Requirements can be accessed here. The Commercial Vehicle Safety Alliance’s (CVSA) International Roadcheck will take place May 5-7. International Roadcheck is a high-volume, high-visibility three-day enforcement initiative that highlights the importance of commercial motor vehicle safety through roadside inspections. Over that 72-hour period, commercial motor vehicle inspectors in jurisdictions throughout North America will conduct inspections on commercial motor vehicles and drivers. For additional details, click here.

CASES

Auto

A trucking company’s second and third-layer excess liability insurers brought action against first layer insurer for declaratory judgment and equitable contribution based on claim that aggregate corridor deductible of $2.5 million above self-insured retention operated below first layer of coverage and did not erode it. The 7th Circuit held that the deductible endorsement was ambiguous and that the endorsement eroded the limits of the first layer of coverage. The complexities of these policies, and the interpretation of how the policies are to be applied, are dealt with in great detail by the court. We urge consideration of these issues when attaching to these high end excess policies. Lexington Insurance Co. v. RLI Insurance Co., 2020 WL 416086

Generally the court will compel plaintiffs to appear for depositions in the venue where the case was commenced. The District Court in New Mexico held otherwise, denying the trucking company’s demand that plaintiffs appear for depositions. The court found that the burden of requiring plaintiffs to travel from their home in the United Kingdom to New Mexico for their depositions was outweighed by the benefit obtainable via use of videoconference and other electronic means. Leeson v. Wright Trucking Company, 2020 WL 435367

A truck driver facing criminal charges for a fatal truck accident was unsuccessful in obtaining a stay of the civil suit. The Western District of Arkansas concluded that after weighing all relevant factors a stay of the civil case was inappropriate. Edwards v. Thomas, 2020 WL 522709

A claim for punitive damages would not be permitted where there was no evidence that the truck accident was caused by anything other than carelessness. The District Court in Colorado denied a plaintiff’s request to amend the complaint against a trucking company to assert a punitive damages claim. Wortman v. Reinsbach, 2020 WL 486956

A plaintiff was unsuccessful in pursuing a shipper for injuries caused in a truck accident on the theory that the shipper should have been aware that the trucking company was unsafe. Plaintiff relied upon allegations that there was a long history of federal safety violations which were public record. The District Court in South Carolina held that the trucking company was an independent contractor and this was not a non-delegable duty, rejecting the claim against the shipper. Ruh v. Metal Recycling, 2020 WL 491287

The Appellate Division in New York reversed the trial court decision in which the insurer provided coverage for a truck accident. The court held that the defendant insurer’s “Any Auto Legal Liability” endorsement extended the definition of “insured auto” to include “any auto, if you are a partnership, corporation, or any other entity,” which included the trailer driven by its additional insured. While there could be exclusions which might be applicable the exclusions would not negate the defense obligations. Zurich American Insurance Co. v Ace American Insurance Co., 2020 WL 369518

The Western District of Pennsylvania concluded that a plaintiff injured in a truck accident could proceed with a direct claim for strict liability against the lessor of a truck. The plaintiff alleged that the truck lacked necessary safety systems and failed to notify lessee of options and the court held there was enough to allow the case to continue. Shimmel v. Navistar 2020 WL 889023

When a truck driver failed to present evidence that a shipper owed him a duty to properly load rolltainers so that they were safe for movement, the trial court granted summary judgment to the shipper. Plaintiff’s appeal to the 7th Circuit was unavailing. The failure to present arguments in the trial court on the basis for a duty owed was determined to be a waiver of the arguments that the driver attempted to make on appeal. Till v Dolgencorp, LLC, 2020 U.S. App. LEXIS 3799

When the plaintiff claimed that it was a UPS truck which hit him and took off, the Eastern District in Pennsylvania was unwilling to grant summary judgment to the motor carrier even where there was no evidence beyond the plaintiff’s testimony, to support the claim. The court held that it would be up to the jury. Levy v. UPS, 2020 U.S. Dist. LEXIS 27533

When the truck driver was completely stopped in a turn lane and was struck by the plaintiff the court held that the truck driver bore no liability for the accident. The Eastern Division in Ohio granted summary judgment to the motor carrier. Kinzer v. Serv. Trucking, 2020 U.S. Dist. LEXIS 28009

A defendant’s claim that it was not subject to federal safety regulations when operating a 2014 Ford Truck Series was not sufficient to confer federal court jurisdiction. The Southern District of Illinois remanded the case back to state court, concluding that the fact that the defendant refuted allegations that they were subject to the FMCSR at the time of the incident did not alter the rule that a potential federal defense is not enough to create federal jurisdiction. Dippel v. Bestdrive, LLC, 2020 u.S. Dist Lexis 27853

Plaintiff’s negligence and gross negligence claims against a freight broker were held to be completely preempted by the FAAAA. The Western District of Texas remanded the action against the motor carrier and driver back to state court, concluding that the broker should be dismissed. The dismissal of the broker defeated federal jurisdiction. Gillum v. High Std., LLC, 2020 U.S. Dist LEXIS 14820

The Second District in California held that an orchard owner that hired a trucking company was not liable for injuries caused when the truck driver, fell from the truck while unloading bins and was crushed by forklift. While plaintiff argued that under premises liability theory based on unsafe condition that road where employee was working was too narrow for forklift to safely access bins in order to assist in the unloading, the court rejected the argument where unsafe condition was openly visible and known to employee. Alaniz v. Sun Pacific Shippers, 2020 WL 562381

The auto exclusion in a general liability policy was held by the Eastern District in California to be sufficiently ambiguous, and further concluding that the reasonable expectation of the insured was that it was covered for claims arising out of its alleged negligence with respect to using, operating, and/or training others to use the tractor involved in the collision at issue. Summary judgment was denied to the insurer. Penn-Star Insurance Co. v. Zenith Ins. Co., 2020 WL 509148

While the motor carrier was successful in seeking dismissal of claims for negligent hiring, entrustment, retention and negligence per se it was unsuccessful in having the punitive damages claim dismissed. The Northern District in Oklahoma held that sufficient facts were asserted to at least support a claim for punitive damages against the driver. The court also concluded that the motor carrier could be vicariously liable for those damages. Conway v. Lone Star Transportation, 2020 WL 609750

When a defendant truck driver died during the litigation the court would not automatically permit substitution of the driver for an administrator of the driver’s estate. The Middle District of Alabama concluded that when there was no estate to administer forcing a substitution to represent an non-existent estate was senseless. Powell v. HM Trucking, 2020 WL 710615

The Eastern District of Louisiana agreed that a trucking company would have no direct liability for the injuries suffered to the plaintiff in a truck accident. As the motor carrier conceded that the driver was operating in the course and scope of employment, and the motor carrier was vicariously liable for the driver’s actions, the claims for negligent hiring, training supervision and entrustment would be dismissed. Pigott v Heath, 2020 WL 564958. A similar decision was reached by the same court in Daniels v King, 2020 U.S. Dist. LEXIS 18655. The same result was reached in the Middle District in Georgia where vicariously liability was admitted by the motor carrier. The court also dismissed the claim for lost wages where the plaintiff, also a truck driver, could not support his claim for damages. Perez v. Bowman, 2020 WL 522141

In another multi-truck accident the Court of Appeals in Tennessee considered the jury verdict rendered in favor of one truck driver for his damages suffered in a rear end collision by another truck. The court partially rejected the trial court’s reduction in the jury award. It is an interesting read on the earning capacity of a truck driver. Borne v. Celadon Trucking Services, Inc., 2020 WL 556289

A defense verdict was upheld by the Court of Appeals in Texas. The plaintiff, unfortunately, was killed when a driver who was working with the plaintiff to fix a tire, released his air brake causing the vehicle to roll backward and pin the plaintiff against a wall. The court agreed that the jury acted reasonably in concluding that the driver was less than 50% at fault. Pedroza v. Salazar, 2020 WL 728309

Even when the evidence really indicates that the truck driver was not at fault, the courts are often loath to grant summary judgment. The District Court in Maryland denied judgment to a motor carrier who struck the plaintiff’s vehicle after the plaintiff’s vehicle hit a guard rail and slid into the motor carrier’s lane of traffic. , The court concluded that a reasonable jury could find in plaintiff’s favor because the jury could conclude that the truck should not have been following closely behind the plaintiff. If his vehicle had been further away he might have been able to avoid the hit. Brown v. Houff Transfer, 2020 WL 673294

A truck owner was unsuccessful in avoiding the jurisdiction of the Western District of Oklahoma when the truck accident happened in the state. The court concluded that the fact that its employee drove its truck into Oklahoma while delivering its products at its direction and the fact that Plaintiffs’ injuries arise from such activities was enough to support jurisdiction. Ratley v. Dhafer, 2020 WL 734479

When a plaintiff failed to timely move to amend the complaint to bring in an additional party who might be liable for injuries to a horse which was transported by the defendant the District Court in New Mexico concluded that the request to amend would be rejected. The court held that the plaintiff was fully aware that the motor carrier would point to a third party for liability and should have acted sooner. Rehburg v. Bob Hubbard Horse Transportation, 2020 WL 563375

Moving to amend pleadings seems to be disfavored this month. The Western District in Washington refused to allow a trucking company to amend its answer to assert apportionment of liability against the owner of the premises where the accident occurred. That direct claim by the plaintiff had previously been dismissed. The court held that the undue delay and bad faith in bringing the motion, combined with the partial futility of the proposed amendment allowed it to reject the request. Neff v. Desta 2020 WL 606586

Cargo

A truck broker’s claims against a motor carrier’s insurer, and the shipper, for a cargo loss were dismissed in the Western District of Wisconsin. The plaintiff was unable to sustain a basis for jurisdiction against either party. Ikon Transportation Services v. Texas Made Trucks, 2020 WL 416765

Preemption was once again the subject of cargo litigation. The Northern District of Texas held that the claim against a motor carrier for throwing away the plaintiff’s goods was preempted by Carmack. Removal to federal court was deemed proper and the state law causes of action were dismissed. Shamoun v. Old Dominion Freight Lines, Inc., 2020 WL 570903

A cargo owner was not permitted to proceed on a claim for fraudulent inducement on the theory that the motor carrier knew it could not safely transport the plaintiff’s cargo. The District Court in New Jersey dismissed that portion of the plaintiff’s complaint. Mitsui FoodsSynergie Canada, Inc., 2020 WL 468337

A motor carrier’s settlement with two cargo owners for its policy limit was held to be a good faith settlement in the Eastern District of California. As a result of that determination all claims for contribution and/or indemnity by the truck broker would be barred. Moore v. ANG Transport, 2020 WL 406777

Storage in transit can last for a long time, as the plaintiffs discovered in their suit for property damage in the Northern District of Illinois. The court rejected the motion to remand the case back to state court, concluding that the 6 years that the goods were in storage was SIT and therefore the only claim which existed was one under the Carmack Amendment. Brunner v Beltmann Group, Inc., 2020 WL 635905

When is delivery complete? The Court of Appeals in Ohio agreed with the trial court that delivery was complete when the driver parked for unloading and the bill of lading was signed. When the granite slabs fell off during the unloading process the motor carrier was not liable and rejected the brokers claim for payment. Total Quality Logistics v. Balance Transportation, LLC., 2020 WL 877795

Motor carrier or broker? Always a question. The Eastern District in Pennsylvania held that there were questions of fact as to whether the defendant acted as a broker or a carrier with respect to the claim for damages to mushrooms delayed in delivery. The court also concluded that a prima facie claim for recovery was made with the production of an email which indicated that the mushrooms were deteriorating at delivery. However the court did give the defendant some assistance by dismissing some of the state law claims. Marson v. Alliance Shippers, 2020 WL 618581

Worker’s Compensation

A worker’s compensation insurer was granted the right to intervene in the plaintiff’s claim against a trucking company for injuries. The Northern District of Ohio concluded that the insurer, although it delayed in seeking intervention, was still entitled to protect its interest. Schmid v. Bui, 2020 WL 377821

Factoring

As usage of CAB data and reports has extended to other operations which service the trucking industry we will report relevant cases when they come up. This month the Middle District of Tennessee addressed a claim between a trucker and a factor over the business practices of the parties. The court granted summary judgment to the factoring company on the claims asserted against it for fraud and breach of contract, also awarding costs and fees. The motor carrier failed to respond to discovery with evidence to support the claims. Pinesa Transportation, LLC v. FleetOne Factoring, LLC, 202 WL 529231