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Bits & Pieces

February 2021

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I vote for warmer weather!

Many of us had the chance to experience one of the coldest stretches in history during the month of February. Much of the central U.S. was plunged into freezing temperatures. The pandemic, below normal freezing temperatures, loss of power, and clean water, has created opportunities for us to help our fellow citizens. Additionally, it provides additional opportunities for the insurance and transportation industry to shine. We hope everyone is safe and we look forward to a quick recovery.

Have a great month!

CAB Live Training Sessions

Just a quick reminder that last month’s sessions, Compliance, Safety & Accountability. Understanding the CSA Scores. and Intro to CAB: Flow & Navigation were both recorded and are available for viewing at your leisure. They are available at the link below. Additionally, our complete library of recorded webinars is available in the Tools menu under Webinars or by clicking here. If you have a new associate or someone who wants to learn more or needs a refresher, This month we will present two new live training sessions:

Tuesday, March 9th @ 12p EST: Mike Sevret will present the topic: CAB Customization. We have a number of new ways to customize your CAB experience to quickly get to the information you’re looking for. I encourage you to attend this focused webinar to ensure you’re getting the most out of your CAB customization options. Click here to register.

Tuesday, March 16th @ 12p EST: Sean Gardner will present on Chameleon Carrier sand Interrelated Entities. This is always a popular topic and will last 60 minutes. This session will address the concept of a chameleon carrier, interrelated entities and the features CAB provides to identify and understand the relationships that may exist between motor carriers. Click here to register.

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

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 Notification for updated Scores and Crash/Inspection Data

Do you want to be notified when new crash and inspection data is available? Additionally, would you like to be informed when updated CAB BASIC Scores and ISS-CAB numbers, including corresponding recommendations (Inspect-Red, Optional-Yellow or Green-Pass) are posted in CAB? We are pleased to let you know that you know that you are now able to visit the My Account dropdown and choose Profile (see below).

Once in the Profile are you are able to make adjustments to numerous settings like the Web Report Format, Radius Buckets, Hot Zones™ States or Counties, SALEs™, and now Notification. Proceed to the bottom of the page and there are now three options, CAB Training Notifications, New CRASH/Inspection Data, and New BASICs / ISS Data. Choose Yes and you will be the first to know when the CAB BASIC scores and ISS-CAB values are updated.

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 CAB Team 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:

2020 spurred record number of fleet failures — but rising new entrant carriers: The number of failures by trucking companies in 2020 jumped compared to years prior as the economic effects of the COVID-19 pandemic and associated shutdown orders converged on fleets’ operations and per-mile spot market rates plunged. Some 3,140 carriers ceased operation in 2020, compared to 1,100 in 2019 and virtually none in 2018. Estimated carrier failures last year accounted for about 50,800 trucks being taken off the road, compared to 34,000 the year prior, though Celadon’s December 2019 closure alone accounted for about 3,000 units. For additional information, click here.

Owner-operators and small fleets remain in crosshairs of DOT’s offsite audits: In a trend that exploded amid the COVID-19 pandemic over the past year, the U.S. Department of Transportation and its state enforcement partners are continuing to leverage new authority to perform offsite, remote safety audits and compliance reviews of trucking companies in lieu of onsite, in-person audits, as was the norm before the pandemic. More than 80% of all audits conducted by DOT and state partners last year were of motor carriers with 20 or fewer trucks, according to DOT data. And more than half, 53.6%, were of carriers with six trucks or fewer. For more information, click here.

The American Transportation Research Institute releases its annual list highlighting the most congested bottlenecks for trucks in America: “While everyone else sheltered in place in 2020, trucks kept rolling, delivering essential goods to communities large and small,” said CRST International President and CEO Hugh Ekberg. “Unfortunately, congestion continues to impact our operations and affect our drivers’ ability to deliver for America.” The 2021 Top Truck Bottleneck List measures the level of truck-involved congestion at over 300 locations on the national highway system. For the third year in a row, the intersection of I-95 and SR 4 in Fort Lee, New Jersey is once again the Number One freight bottleneck in the country. For more information on this study, click here.

Truck orders ring in the new year at over 40K units: North American Class 8 net orders for January reached 42,800 units in January, according to preliminary data released Tuesday by FTR – the fourth consecutive month heavy truck orders have exceeded 40,000 units. January orders dropped 18% from December but rocketed 144% year-over-year. Orders for the last 12 months total 308,000 trucks. “When the vaccine enables employment to increase and the other bottlenecks are removed, this will end up being a robust year for Class 8 sales.” Don Ake, vice president of commercial vehicles for FTR. Freight growth has pushed fleets to add capacity as fast as possible and OEMs and suppliers are wrestling to keep pace with surging demand. For more on this topic, click here.

Current DOT Reportable Crash Data: 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 prior to January 31, 2021. 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.

Companies Registering for new DOT numbers continue to be strong amid pandemic: After a pandemic related April 2020 dip to just over 9300 new DOT authorities were issued during that month, the record-setting pace, compared over the last five years, is continuing into the new year. April to October saw a recovery to the highest two months in September and October with 17,420 and 17,313, respectively before a significant drop in November and December. However, January 2021 has set another record with 18,463 new authorities issued.

The Federal Motor Carrier Safety Administration (FMCSA) has extended its pandemic-related emergency exemption through May. 31: The FMCSA extension was previously set to expire on Feb. 28, but continues to cover the extended emergency relief for the following categories only: Livestock and livestock feed, Medical supplies and equipment related to testing, diagnosis, and treatment of COVID-19, Vaccines, constituent products, and medical supplies and equipment including ancillary supplies/kits for the administration of vaccines, related to the prevention of COVID-19, Supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants, Food, paper products and other groceries for emergency restocking of distribution centers or stores. According to the FMCSA, “Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration.” For more on the waiver, click here.

CASES

Auto

The 11th Circuit Court of Appeals upheld a grant of summary judgment to both the auto liability insurer and the agent of a motor carrier. The plaintiff had asserted that those parties were directly liable for a truck accident caused by a truck driver the plaintiff contended was somehow approved by those parties. The court agreed that the evidence established that the motor carrier’s safety program was lacking from the very beginning, that it was always “poor and noncompliant” and “continued to be substandard before, during, and after” its insurance relationship with the defendants. The court held that neither the insurer or the agent increased the risk of harm to the plaintiff and that the motor carrier did not change its position in reliance on the insurer or the agent. This is a good read for consideration of the underwriting process and the communications to an insured which can raise concerns. Maier v. GreenWyes, USA., 2021 WL 406912.

Well this is different. The Eastern District in Tennessee held that the plaintiff was required to seek a default judgment against a motor carrier when its insurer was in receivership and was no longer providing a defense. The court did not agree that the policy provision which obligated the insurer to pay after entry of a judgment determined after a trial precluded a default judgment from triggering the payment. Mumpower v. Gheleniuc 2021 WL 665763

While the Southern District in Illinois denied that late notice to the insurer would constitute grounds for denial, it did agree that the MCS-90 endorsement provided no obligation on the part of the insurer to defend, also concluding that neither insurer was obligated to defend under policies which did not cover the vehicle involved in the accident. Artisan and Truckers Casualty Co. v. Neron Logistics, 2021 WL 535541

The Northern District in Texas held that an insurer was entitled to seek a declaration on whether a plaintiff was an employee for the purposes of the employee exclusion under the trucker’s auto policy. The court agreed that extrinsic evidence could be considered when considering whether the complaint sufficiently plead a cause of action when the issue was one of policy interpretation. Canal Insurance Co. Greenland Trucking, LLC, 2021WL 462051

Plaintiff cannot always avoid federal court jurisdiction by failing to assert the amount of damages sought. The Middle District in Alabama allowed the motor carrier to conduct post removal discovery to support the claim that the plaintiff would clearly be seeking more than $75,000 in damages. Goosby v. Briggs, 2021 WL 298817

The punitive damages exclusion under a motor carrier’s excess policy was held enforceable in the Western District of Louisiana. The exclusion was clear and unambiguous. Moreaux v. Clear Blue Insurance Co., 2021 WL 627717

How far back can you go to get information on the plaintiff’s work habits? A motor carrier sought to subpoena records as far back as 1972. The Court agreed that was unduly burdensome, allowing the motor carrier the ability to get records only as far back as 2016. Acuna v. Covenant Transport, Inc., 2021 WL 411146

A defense verdict was reversed and remanded by the District Court of Appeals in Florida. When the trial court admitted hearsay evidence that the plaintiff had an earbud in his ear when he was struck by the defendant, the court held that it was prejudicial to the plaintiff. The hearsay evidence bolstered the motor carrier’s case that it was not negligent and had in fact sounded a horn that was not heard by the plaintiff. Back it went for a new trial. Dayes v. Werner Enterprises, 2021 WL 262037.

Non-trucking or trucking? Which insurer will bear the risk? The Court of Appeals in Louisiana concluded that summary judgment was not appropriate on that issue. The court agreed that conflicting statements concerning the drivers activities immediately before and at the time of the accident give rise to genuine issues of material fact regarding which insurance policy, and possibly both, would be in effect at the time of the accident. Gonzales v. Minion, 2021 WL 264861

Truck driver crossed into plaintiff’s lane during a snowstorm. Is anyone at fault? The Northern District of Ohio concluded that there was no evidence that the plaintiff was negligent, granting judgment on the claim of contributory negligence. The plaintiff was not, however, able to show that the defendant was negligent as a matter of law and summary judgment was denied. Schmid v. Bui, 2021 WL 371713

A motor carrier was successful in vacating a default judgment in the Southern District in Indiana. While the answer was untimely, the evidence showed that the claims adjuster was quickly trying to communicate with plaintiff’s counsel and retain an attorney on behalf of the defendant. There was no prejudice to the plaintiff by vacating the default. Haney v. McClure, 2021 WL 308168

A defense verdict was upheld in the Court of Appeals in Texas. The plaintiff’s estate claimed that the truck driver failed to yield the right of way and turned in front of the decedent causing the fatal accident. After considering all of the issues the court concluded that the jury could have believed that the decedent was traveling at a speed greater than was reasonable and prudent under the circumstances, that he failed to exercise ordinary care, or that he disregarded the safety of himself and others. The statutory right of way assertion required that the person claiming the right exercise proper regard for safety, which plaintiff did not. Cravens v. Alisam Enterprises, LLC., 2021 WL 278316

A truck driver was held to be a “statutory employee” of a warehouseman when he allegedly caused injury to a worker in the warehouse. The Western District of Virginia held that Virginia law bars a negligence action against him for the injuries as worker’s compensation is the exclusive remedy for the plaintiff. Farmer v. Cook, 2021 WL 263373

When the motor carrier failed to raise objections during trial it waived any right to assert those objections when appealing an $11 million verdict. The California Court of Appeals affirmed the judgment Garcia v. Tri-Modal Distribution Services, Inc., 2021 WL 613161

What an expert can rely upon to reach his conclusions on negligence if often disputed. The Northern District in Alabama (a state which seems to be having a busy truck case month) determined that an expert could testify on whether the truck driver breached the the applicable standard of care by failing to manage his space properly (i.e., by following the pickup truck too closely. However, in offering the opinion, he could testify that the Model CDL Manual and/or the FMCSRs establish the applicable standard of care, that the formula the driver generally uses to determine a safe following distance violates the Model CDL Manual, or that the driver’s conduct otherwise violated the Model CDL Manual or the FMCSRs. Stiefel v. Malone, 2021 WL 526217

A motor carrier and its insurer were liable for costs and fees for failing to comply with a court order requiring production of witnesses and discovery. The Western District of Louisiana held that the defendants provided no justifiable reason for the failure to comply. Fees for the motion, for travel to court and for plaintiff’s review of the discovery responses was considered reasonable by the court. Bertram v. Progressive Southeastern Insurance Company, 2021 WL 433976

A repairman who fell through the roof of a trailer he was inspecting for repairs was unable to recover from the motor carrier for his injuries. The Court of Appeals in Washington held that the motor carrier discharged its duty to warn the plaintiff of potential dangers when it informed the plaintiff’s employer that there was a crack or hole in the roof of the trailer and asked that someone come to the facility to inspect and repair the damage. Sudbeck v. Eagle Transport, 2021 WL 321663

Even though the plaintiffs were speeding and intoxicated, the motor carrier was unable to obtain summary judgment on liability. The District Court in Colorado held that there were questions of fact as to whether the motor carrier contributed to the accident by changing lanes. Phillips v Miser, 2021 WL 720068

When a litigant removes a state court action to federal court, may the federal court properly remand the action to state court because of a procedural defect in the notice of removal if the party moving to remand did not raise that particular procedural defect in its initial motion? That was the issue to be decided by the Northern District of Alabama following the removal of a complaint for injuries arising from a truck accident. The answer was yes. When the notice was untimely it did not matter when the objection was raised in the motion to remand. Burns v. Superior Goods, Inc. 2021 WL 512238

CARGO
The potato chips bags that explode in transit. I think that was one of my first cargo claims way back when!. Seems to still happen. The District Court in New Jersey denied summary judgment to the truck broker for the claim for damaged chips concluding that there were questions of fact on whether the plaintiff could prove good order and condition at origin. Ultra Logistics, Inc. v. Cody Keys Trucking, LLC., 2021 WL 631927

When the plaintiff sought a default judgment against a motor carrier for a cargo loss the Southern District in Alabama rejected the request. Plaintiff’s only proof of service was a receipt containing an illegible recipient signature. In addition, the plaintiff did not address the certified mail to a particular person, but generally addressed it to the motor carrier. The record did not support a finding that the certified mail was delivered to “an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” Rollason v. Allstate Van Lines Relocation, Inc. 2021 WL 400542

Is a claim against a carrier for failing to leave shipments at a designated spot between a door and screen door a federal question? The Western District in Washington remanded the case back to state court as there was no evidence that damages would exceed the $10,000 minimum requirement under the Carmack Amendment. Hayes v. Slankrd, 2021 WL 651428

Preemption once again. The Western District of Oklahoma dismissed claims for negligence and breach of contract. The remaining claim was permitted to remain, even if it did not explicitly state that it was a claim under the Carmack Amendment. Radial Engines, Ltd v YRC Freight, Inc., 2021 WL 665536

Worker’s Compensation
A motor carrier was unsuccessful in arguing that its lease with the plaintiff required the plaintiff to seek worker’s compensation only in Tennessee. The Court of Civil Appeals of Alabama concluded that, notwithstanding the parties’ agreement that employment was to be principally localized in Tennessee, Alabama statutes gave the plaintiff the right to seek compensation benefits under Alabama law for injuries sustained in Alabama. The parties were not free to give that right away in the lease. Sellers v. Venture Express, 2021 WL 520902

Thanks for joining us,

Jean & Chad

© 2021 Central Analysis Bureau