CAB Bits & Pieces January 2019

Good day CAB Nation!

So far it’s a pretty chilly start to 2019. We hope everyone is staying safe and warm. Most of the country, including the warmer parts where northerners tend to frequent during this time of year has experienced unseasonably cool weather. It was recently announced that the FMCSA was expanding its emergency declaration to 22 states as the polar vortex descends into much of the Midwest and Northeast. The agency has suspended some regulations including hours of service for those transporting heating fuels in those areas. This is a perfect example of why trucking and our road infrastructure is so important. We’re thankful for the drivers that brave the conditions to deliver the vital goods, commodities and services needed to keep us all warm, fed and safe during a serious weather event like this. Kudos to the trucking companies and their drivers!

Keep in mind that we will be sharing pertinent industry information throughout the year. Follow us at: CAB Linkedin Page CAB Facebook Page

CAB’s Tips & Tricks:

This month we’re focusing on the BASICs Calculator. The BASICs Calculator has been available for about two years, but we are constantly enhancing features to make it better. The BASICs Calculator can be found under the tab.

The BASICs calculator was originally designed for loss control, safety representatives and risk management staff but has since been adopted by other CAB users to help them identify the “diamond in the rough” carriers. By using this tool to identify what drives the current scores, users are able to define the questions they can ask to address weather the carrier has taken the necessary steps to improve their operation’s risk profile. This allows CAB users to work closely with a motor carrier that may have been declined and to demonstrate interest in working with the motor carrier in order to cement a long term relationship. Below we have identified a few of the premier features of the BASICs Calculator.

• Filter and sort by vehicle, driver (w/ SMS PIN) and BASIC category
• Quickly identify and rank VINs and Drivers with high violation and point counts.
• Filter and recalculate BASIC Scores to determine how vehicles, drivers, individual inspections and violations affect BASIC and ISS Scores.
• Easily determine which vehicles, drivers and violation categories are contributing to the Motor Carriers BASIC scores.
• Identify violation categories that if addressed could reduce the BASICs scores the greatest. (Low hanging fruit) As an example, what would the Unsafe Driving BASIC look like if we removed the Speed 2 & Speed 3 violations?
• This tool is very useful to determine how removing a violation or inspection will affect the BASIC score when completing DataQs.

If you have nay questions related to the BASICs Calculator or other CAB Tools and Resources, please do not hesitate to give us a call or send us an email.

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 a customer driven company and our goal is to help you Make Better Decisions!

This month we report:

Bureau of Labor Statistics reports on Workplace Injuries and Illnesses Resulting in Job Transfer or Restriction: Workers who suffer severe injuries or illnesses on the job may take days away from work to recover, or they may return to work immediately in a different job or with restricted tasks. The type and severity of the injury affect whether a worker takes time away to recover, returns to work on light or restricted duty, or transfers to another job while they recover. In 2017, sprains, strains, and tears were the most frequently occurring injuries resulting in lost worktime, transfer, or restriction in five of six industries studied. More of these cases resulted in days of job transfer or restriction than days away from work in crop production; transportation equipment manufacturing; and amusement, gambling, and recreation. In truck transportation, however, more of these injuries resulted in days away from work than job transfer or restriction. See the complete article here.

The Bonnie and Clyde of the Trucking World. “When it comes to Melinda and Elliot Campbell—think Bonnie and Clyde. But rather than rob banks, the Campbells targeted the trucking industry. The couple’s con went as follows: they created fake shipping companies, persuaded third parties to hire them to deliver cargo, and then held the shipments as hostage until the third parties paid ransom for the deliveries. The government charged the Campbells with six counts of wire fraud, one count of conspiracy to commit wire fraud, and one count of conspiracy to commit extortion. After a five-day trial, a jury convicted the Campbells.- They appealed and lost US v. Campbell, 2019 WL 193915. It goes to show that crime doesn’t pay, but it comes in all forms.

Federal Motor Carrier Safety Administration Proposes Reference Changes to Hazardous Materials Safety Permits: The FMCSA is proposing to reference the updated Commercial Vehicle Safety Alliance (CVSA) handbook as part of the requirements for motor carriers who are required to possess Hazardous Materials Safety Permits.

The Out-of-Service Criteria provide uniform enforcement tolerances for roadside inspections to enforcement personnel nationwide, including FMCSA’s state partners. Currently, the regulations reference the April 1, 2016, edition of the handbook. The FMCSA is proposing to incorporate by reference the April 1, 2018, edition.

Carriers are required to carry Hazardous Materials Safety Permits for certain highly hazardous materials, including highway route-controlled qualities of radioactive materials. Section 385.415(b)(1) requires that motor carriers ensure a pre-trip inspection is performed on each motor vehicle to be used to transport a highway route-controlled quantity of a Class 7 (radioactive) material, in accordance with the CVSA handbook.

Wind Chill is a Very Real Hazard for the Trucking Industry. The show must go on. Deliveries must be made, however with the bitter cold upon us; even the United States Post Office has opted to suspend deliveries in some areas of the Polar Vortex. Below is an infographic of the hazard.

The Top Ten Causes of Accidents Involving Commercial Motor Vehicles. The list below is according to the 2016 Large Truck and Bus Crash Facts, which is the most recent data available. This information reiterates the importance of safety training and safety culture in a motor carrier. Management needs to communicate and understand their employees to better relate to the issues they’re facing personally and professionally.

1.    Illegal Drug Use (26%)
2.    Speeding (23%)
3.    Unfamiliar Territory (22%)
4.    Prescription and Over-the-Counter Medications (18%)
5.    Failure to Check Blind Spots (14%)
6.    Driver Fatigue (13%)
7.    Failing to Signal a Turn (9%)
8.    Distracted Driving (8%)
9.    Negligent Driving (such as underestimating distance between two vehicles) (7%)
10.  Aggressive Driving / Road Rage (7%)

Commercial Auto has a Rough Road Ahead: Commercial auto has always been tricky. Insurance markets have always entered and exited different segments of the industry. However, commercial auto is getting more difficult to insure and markets are becoming very selective as liability losses can climb dramatically. As the graph below indicates, FMCSA data shows crash frequency and fatalities are rising.

The results are the tightest segment of the commercial auto market is the middle. There are numerous markets available for preferred risks and distressed risks, but as a result there are very limited markets for risks with a few losses. This is resulting in sticker shock across the industry.

What can agents do? Communicate more with the motor carrier even when the news is less than ideal. Discuss renewals sooner and set expectations so there is time to explore more options in the market place. Know the insured by understanding their business, history and helping the insured mitigate liability exposures will facilitate a stronger submission.

Interesting Tidbits:

Trucker Named Highway Angel for Saving Small Child: Missouri-based truck driver Mike Johnson has been named a Highway Angel by the Truckload Carriers Association for rescuing a small child that was found alone in a ditch in the early morning hours of July 13, 2018. Johnson noticed a small child in only a diaper standing up in a ditch. He stopped his truck and has he approached, the child ran. Johnson was able to catch and comfort the child while notifying authorities. The child was taken to a local hospital and reunited with his mother. This is another example of how truck drivers work to keep us safe on the road every day. Kudos Mike Johnson!!!

Officials Issue Warnings after Semi Truck ‘Ice Missile” Injures Motorist: On January 22 in Pennsylvania, a motorist was severely injured by a chunk of ice that fell off of a semi-trailer while traveling on I-80. The ice chunk flew off the top of the trailer, struck the car’s windshield and left a male passenger so injured he was later airlifted to a nearby hospital. Local rescue officials are asking drivers to remember to clean the vehicles off completely before driving. However, drivers note this is more difficult than it seems. PennDOT notes that newly enacted laws allow for a fine of $200-1000 for each offense if ice or snow falls from a vehicle.

National Transportation Safety Board’s Work Limited during Government Shutdown: During the governmental shut down, 367 NTSB employees were furloughed, 26 were exempted and 4 investigators were recalled without pay to support the investigations of three international aviation accidents. However agency staff was not sent to numerous other aviation crashes (15) or other major highway (7), rail (2) or marine crashes (3). Ultimately dozens of crashes occurred where the agency would have sent staff, if not for the partial government shutdown. Future investigations may result, but perishable evidence may be permanently lost. Additionally, 1,913 ongoing investigations were halted due to the partial shutdown.

Current Cases

Auto

A jury verdict of $1.925 was upheld against a trucker in the Appellate Division in Illinois. The trucker argued that he struck the decedent cyclist after the decedent had already been hit and killed. The court accepted the jury determination that it was the trucker who caused the injury. Scow v Berrien, 2018 IL App (1st) 180422

When a plaintiff failed to allege sufficient facts to support her claims against a trucking company for a personal injury loss, the causes of action were dismissed. The court held that under Alabama law, the torts of negligent or wanton entrustment, hiring, training, supervision, and retention all require a plaintiff to show an employer knew or should have known its employee was incompetent. Plaintiff, after two attempts at crafting a complaint, failed to allege sufficient facts to support those claims. Hawes v. Bailey 2019 WL 112211

Interesting issue – A trucker hires a private investigator to surveil a plaintiff in a different state. The investigator is not licensed in the state where he follows the plaintiff. The Western District of Louisiana denied the plaintiff’s motion for sanctions, concluding that, under the facts and circumstances of this particular case, sanctions were not warranted where there was no indication that the defendants or their counsel knowingly violated the statute at issue, acted in bad faith, or willfully abused the judicial process. In addition, video recording the plaintiff while he was talking to his lawyer was not a violation of Louisiana Rules of Professional Conduct. That privilege protects communications. Franco v. Mabe Trucking, 2019 WL 97044

The District Court in Puerto Rico held that the USA was entitled to sovereign immunity in an action in which the plaintiff sought damages for injuries suffered in a truck accident when the motor carrier was hauling mail for the USPS. The court held that the carrier was an independent contractor and therefore the government was not responsible for his actions. Colon v. USA, 2019 WL 165578

One shipper was found liable for overloading a gravel and rock truck which resulted in cargo hitting and seriously injuring the plaintiff. The Court of Appeals in Minnesota upheld the verdict against the shipper and also remanded the case back for a further determination on whether the plaintiff had a right to assert a punitive damages claim against the shipper. The plaintiff had already settled with the motor carrier. Lien v. Casper Construction, 2019 WL 178454

The cases are all over on this issue – are claims against broker’s for negligent hiring preempted? The District Court in Arizona concluded that there were not, allowing a negligent hiring claim to proceed. The Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) did not preempt the claim. The court held that negligent hiring claims are generally applicable state common law causes of action that apply to a wide variety of industries and do not impact the ability to regulate prices, routes or services. Nyswaner v C.H. Robinson Worldwide, Inc. 2019 WL 95896

A lot of broker cases are coming down the pike this month. The Western District of Missouri denied a broker’s motion to dismiss a claim which sought recovery from the broker as part of a joint venture with the motor carrier. The Western District of Missouri held that sufficient facts were alleged by the third party plaintiff that there was 1) an agreement; 2) a common purpose; 3) community of pecuniary interest; and 4) equal right of control between the trucker and the broker. Ellsworth v. K&B Transportation, 2019 WL 137616

The Appellate Division in Illinois held that a truck broker bore no liability for a truck accident which occurred after a transport was completed. The Court held that there was no agency or hiring relationship between the broker and the carrier, the motor carrier was not on the broker’s premises, using his equipment, or acting under the direction of the broker and had completed its contracted-for work at the time of the accident. Brettman v. M & G Truck Brokerage, Inc., 2019 IL App (2d) 180236, 2019 WL 244623

The Supreme Court of Nebraska granted summary judgment to a truck broker in an action arising from a multi-fatality accident. After settling with a trucking company and its driver plaintiff’s continued the suit against the broker. The driver has been found to have been driving longer than permitted under applicable law, had consumed alcohol less than 4 hours before going on service, had a criminal history relating to the operation of motor vehicles, including driving on a suspended license, driving without a license, and driving under the influence of alcohol. The court granted judgment to the broker concluding that its relationship with the driver was that of an independent contractor as it had not exercised undue control over the driver’s operations and that there was no liability under the independent contractor relationship and as a broker of the load was not responsible for Johnson’s hiring, training, or supervision. Sparks v. M&D Trucking, 301 Neb. 977

A motor carrier was successful in having a suit for personal injuries transferred to Oklahoma where the accident occurred. The fact that the plaintiff alleged negligent hiring and training against an Alabama trucking company was insufficient to overcome the facts which supported transfer to the venue of the situs. Clark v Winston Trans, Inc. 2019 WL 157740

A father who failed to support his child and was incarcerated for most of his son’s life was not permitted to seek damages following the death of his son in a motor vehicle truck accident. The Second District in California concluded that the father lacked standing to sue when there was no relationship with the decedent. Island v. FedEx Freight, 2019 WL 92080

When a wife filed a separate suit against a trucking company for loss of consortium stemming from a truck accident injuring her husband and alleged damages less than $75,000 the District Court in South Carolina refused to entertain jurisdiction and sent the case back to state court, even while it was still hearing the husband’s direct claim. Sparks v. Edward Davis, 2019 WL 168487

The Eastern District of Pennsylvania held that a motor carrier was entitled to summary judgment on negligence claims arising from personal injuries suffered during a “road-rage” incident where the driver exited the vehicle owned by the motor carrier and allegedly physically assaulted the plaintiff. The court held that the driver was not acting within the scope of his employment during this incident, and the motor carrier did not know of his violent propensities. Nelson v Loftus, 2019 WL 175127

While a 10 month delay in notifying an insurer of a loss was an unreasonable delay, where the insured may not have reasonably expected the suit an insurer was not granted summary judgment for breach of the notice provision in the policy. In addition, the insurer was not permitted to rely on the employee exclusion when the driver was an independent contractor. Canal Insurance Co. v. Butler, 2019 WL 277361

The Eastern District in Texas held that the driver of a tractor-trailer was not the statutory employee of the logging company who hired him following a serious truck accident. However the claims for vicarious liability and statutory employer liability under Texas Regulations were permitted to proceed. Davis v. International Paper Company, 2019 WL 183904

The Western District in Oklahoma held that a plaintiff was entitled to receive portions of the claims comments in a file regarding a tractor-trailer accident because they were prepared in the normal course of business and not directly in anticipation of litigation. The information was not protected by the work-product doctrine. Annese v. U.S. Express, 2019 WL 191654

Claims for negligent hiring, entrustment, training and supervision, are simply not permitted when a motor carrier admits that its employee was acting in the scope of his employment at the time of the accident, and the plaintiff does not have a viable claim for punitive damages against the employer. The Eastern District in Pennsylvania granted summary judgment to the motor carrier Pineda v. Chromiak, 2019 WL 175135

A motor carrier’s removal of an action to federal court, without a written consent to the removal by the codefendant, was not automatically subject to remand in the Middle District in Alabama. The court held that the filing of an opposition to the remand by the codefendant cured the technical defect. The case was set for discovery on whether the jurisdictional limit was met. Piard v VRP Transportation, 2019 WL 210402

The District Court in Maryland refused to dismiss a late filed action against a motor carrier when the initial suit was timely filed against the truck driver. The court held that it was reasonably possible that the motor carrier should have expected the suit and the amended complaint should be deemed to relate back to the initial date of filing. Agbaje v. Saul, 2019 WL 316725

When a trucking company removed an action before the home state driver was served the plaintiff was not allowed to have the case remanded. The Eastern District of Pennsylvania held that the plain meaning of the forum defendant rule precluded removal on the basis of in-state citizenship only when the defendant has been properly joined and served, acknowledging the legal split on the issue. Mendoza v, Ferro 2019 WL 316727

The request to prevent an Accident Reconstructionist from testifying about the position of tractor trailers following an accident failed in the Western District of Pennsylvania. While the report was based, in part, upon photos which were disclosed late, the court held that was insufficient as a reason to withhold the report. Take note that the photos came from the insurer’s physical damage file and not from the liability file. Make sure to always consider what other claim files might exist. Rabuh v. Hoobrajh, 2019 WL 135529

Cargo

The Northern District in Illinois considered the question of whether claims that a motor carrier violated safety regulations gave way to an additional cause of action for loss or damage to cargo, which is generally subject to the preemptive effect of the Carmack Amendment. The court rejected the position, concluding that the regulations were not promulgated under 49 USC § 13902 and that none of the other provisions within Part 392’s authority citation fell within or were promulgated under Part B of Subtitle IV and therefore there is no claim under ICCTA. Plaintiff could not state a claim under § 14704 for the violations. Starr Indemnity & Liability Co. v. YRC, 2018 WL 6790487

A broker was not permitted to recover for a cargo loss from a motor carrier when the broker settled first with the customer. The Court of Appeals in Ohio held that when a broker sought indemnity under a broker carrier contract it was obligated to comply with Ohio indemnity laws which required a showing that 1) that the indemnitee has given proper and timely notice to the party from whom indemnity is sought, (2) that the indemnitee was legally liable to respond to the settled claim, and (3) that the settlement was fair and reasonable. The court held that the broker failed to establish that it was legally liable for the loss and therefore could not seek indemnity. Total Quality Logistics, LLC v. JK&R Express, LLC. 2019 WL 115204

A default judgment against a motor carrier was vacated in the Middle District of Florida. While the court held that the motor carrier was not entitled to quash the service of the complaint, it acted diligently in seeking to vacate the default judgment for a cargo loss. The motor carrier was given an opportunity to answer the suit. Scotlynn USA Division v Titan Trans Corp., 2019 WL 166325

One tow truck company, although losing the battle, may win the war. The Third Department in the Appellate Division in New York reversed the award of summary judgment to a tow company for $55,946.78 for its services and ongoing storage fees when the defendant had not answered the complaint. While the court concluded that summary judgment was not the proper remedy because the suit was not joined, it held that plaintiff could seek a default judgment, denying the motor carrier an opportunity to defend the suit due to its failure to timely address the complaint. Gerster’s Triple E. Towing & Repair v. Pishon Trucking, 2018 WL 6797582

A truck broker was successful in defeating a claim for damages stemming from a cargo loss. The District Court in New Jersey held that the broker did not hold itself out as a carrier and therefore could not be liable under the Carmack Amendment. The court also held that the state law claims were preempted under FAAAA. AMG Resources Corp. v Wooster Motor Ways, Inc., 2019 WL 192900

Thanks for joining us,

Jean & Chad