We are halfway through 2020?!?
At this point in 2020, I’m not sure how to feel about the year being half over. Happy, sad, relieved? Regardless, the year keeps trucking along…pun intended. If you’re a sports fan, the good news is that games are getting underway again. Here’s to continuing to move forward and getting the most out of life during this crazy period. As always, we hope for your continued good health, safety and prosperity during August and beyond!
Live Training Sessions
Our live training sessions continue to garner great interest from our users. Your interest has driven us to continue to innovate and provide topical training. Last month our training addressed Using CAB: Flow & Navigation and CAB Focused Training: VITAL+™. If you missed either of these webinars, they are available in the Tools menu under Webinars or by clicking here. This month we will present two new live trainings:
Tuesday, August 11 @ 12p EST: Mike Sevret will present Customize your CAB Experience: Settings & Scheduled Reports. This session will benefit all users, but especially users that want to customize what and how they see the information on the CAB system. This will include identifying hot zones, scheduling/automating reports, auto add to CAB List, radius buckets/alerts, violation notifications and even customizing your web and PDF CAB Report® format. If you’re an avid CAB user, you will not want to miss this training!
Tuesday, August 18th @ 12p EST: Sean Gardner will provide a basic overview of CAB’s Motor Carrier Advantage. MC Advantage™ is a tool that provides Motor Carriers access to their CAB information in a dashboard format. Since its initial introduction through specific insurance carrier partners, the MC Advantage™ has proved an invaluable tool for motor carriers of all sizes. Don’t miss this training to learn more about MC Advantage™.
Our focused training will be shorter and last 30 minutes, as we know your time is important. CAB subscribers 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 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: Crash Preventability Determination Program (CPDP) Resources
Many of you may have noticed that we recently updated our logo and color scheme throughout the CAB system. Our goal was to update and simplify our Logo and color scheme to enhance our user experience. Don’t worry, while the tools and resources have a more appealing visual appearance, all the same great CAB features are still available!
This month we also introduce an additional feature available in CAB List™. The new feature is the ability to add and filter by “Tags”. This can be done either by selecting a checkbox and hitting the green tag button or by hitting the tag button at the end of each row. Once a tag is added, hovering over the tag button on the row will show the assigned tags. This functionality was requested by users that were looking for additional ways to classify and organize the motor carriers in their CAB List™. Tag names are only limited by your imagination. Feel free to tag by insurance agency, insurance carrier, commodity, region of operation, producer, or anything you prefer.
As with all of our tools & enhancements, we strive to present the data in a manner that will help provide additional clarity. 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:
Virginia Tech Transportation Institute Releases Pre-Employment Screening Best Practices in the Commercial Motor Vehicle Industry Study: This study documents innovative and successful practices for pre-employment screening in the commercial motor vehicle (CMV) industry and assesses the prevalence and effectiveness of these pre-employment screening practices in a sample of CMV operations. A 47-item Web-based survey queried participating carriers’ (i) use of various pre-employment screening practices, (ii) effectiveness of pre-employment screening practices, (iii) reasons why pre-employment screening practices are used or unused, and (iv) descriptive data on the participating carrier (fleet size, operation type, etc.). Based on the results, effective screening techniques in order of their effectiveness ratings from survey respondents include performance or skills testing, background checks, personality testing, medical examination, physical ability testing, and social media screening. For more information on the study, click here.
The Federal Motor Carrier Safety Administration (FMCSA) announces a public meeting “The FMCSA 2020 Trucking Safety Summit”, which will be held virtually on August 5, 2020, to solicit information on improving safe operation of property-carrying commercial motor vehicles on our Nation’s roadways. The virtual meeting will provide invited stakeholders — including motor carriers, drivers, safety technology developers and users, Federal and State partners, and safety advocacy groups – as well as members of the public an opportunity to share their ideas on improving trucking safety. For more information and to register for the event, click here.
Nonfarm Employment Up 4.8 Million in June 2020, Transportation and Warehousing up 98,700: Total nonfarm payroll employment increased by 4.8 million in June 2020, following an increase of 2.7 million in May. These gains reflect a partial resumption of economic activity that had been curtailed due to the coronavirus pandemic in April and March, when employment fell by a total of 22.2 million in the 2 months combined. In June, nonfarm employment was 14.7 million, or 9.6 percent, lower than its February level. Transportation and Warehousing specific data can be seen below. For additional information, click here.
FMCSA Eliminates Driver Vehicle Inspections Reports (DVIRs) When No Defects Are Found: $74 Million in Annual Cost Savings is projected as part of the agency’s ongoing effort to review existing regulations to evaluate their continued necessity and effectiveness, FMCSA is rescinding the requirement that drivers of commercial buses submit – and their motor carriers retain – driver-vehicle inspection reports (DVIRs) when the driver has neither found nor been made aware of any vehicle defects or deficiencies. It should be noted that both Pre and Post Trips are still required by Federal Motor Carrier Safety Regulations. For more information, click here.
CAB Calculates Number and Percentage of Motor Carriers Above and Below BASICs Alert Thresholds: The “Number of Carriers” table shows the number of carriers in each power unit range with a percentile under or over the alert threshold in each BASIC category. The “Percentage of Carriers” table shows the percentage of carriers in each power unit range with a percentile over the alert threshold: 1) out of the set of carriers who were assigned a percentile (w/pctile), and 2) out of the set of carriers who in the last two years had at least one relevant inspection (w/insp). Only a very small proportion of carriers fall in the first category and a somewhat larger minority in the second category (it varies by carrier size and BASIC).
Note that for the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Also note that different BASICs and different types of carriers have different thresholds. Percentiles are as of the snapshot date 6/26/20. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or unknown number of power units are not included.
Road Fatality Rates Increase During Pandemic: National Safety Council, which focuses on eliminating the leading causes of preventable injuries and deaths, released estimates indicating that motor vehicle fatality rates rose in May, despite quarantines. Preliminary data for May shows a 23.5% jump in the fatality rate per miles driven compared with figures from the previous year. Also noted was a 12% jump in death rate in March and an unprecedented 34% increase in the rate of death in April with miles driven dropping 40% in April. To view the complete NSC Transportation Round Table, click here.
FBI Issues Warning About Vulnerability of Electronic Logging Devices (ELD): Issued on July 21st, in a Private Industry Notification, the FBI warns that “cyber criminals could exploit vulnerabilities in Electronic Logging Devices. The main issue noted is that the ELD mandate does not contain cyber security requirements for manufacturers or suppliers and there is no requirement for third-party validation or testing prior to the ELD self-certification process. The PIN recommends companies choosing an ELD mitigate their cyber risk by following best practices tailored to ELDs which includes asking the ELD’s supplier specific questions, such as: 1) Is the communication between the engine and the ELD enforced? 2) Were technical standards or best practices followed in the device’s development? 3) Does the component protect confidentiality and integrity of communications? 4) Has the component had penetration tests performed on it? 5) Does the device have a secure boot?
FMCSA’s Emergency Declaration still in Place, but Fewer Freight Categories Included: On July 13th, the FMCSA extended the Emergency Declaration to August 14th. The order had been set to expire on July 14th. Previous declarations exempted Food, Fuel, Paper Products, Raw Materials, Liquified Gases and others. The current declaration is only for +Livestock and livestock feed +Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19 and +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. For more information on the Emergency Declaration click here.
Roadside Inspections Continue Rebound After Low of 70,000 in April. As the data set below details, due to COVID-19 exemptions, the total number of inspections recorded in April of 2020 was just under 70,000. Prior to that, and since 2009, the previous monthly low was just under 235,000 inspections. This is mainly due to COVID related issues and concerns. For the month of June, 184,353 inspections were conducted. The violation rate for June (1.22 violations per inspection) dropped by .01 from May and remains below the 1.42 rate from June of 2019. The good news is that the data validity remains strong as the algorithms are designed to adjust to fluctuations in the data sets. As always, we encourage you to look below the surface to get a better understanding of the motor carriers you’re looking to do business with. You are welcome to reach out to your CAB Representative if you have any questions.
CASES
Cargo
You can indeed forfeit the right to present a claim under the Carmack Amendment claim. The Western District of Wisconsin held that a truck broker forfeited the Carmack claim by failing to plead it or otherwise put the motor carrier on notice of the claim. As the broker carrier agreement, which was the basis of the remaining claim, made the motor carrier liable only for a negligent loss, summary judgment was inappropriate. Whether it was negligent to move cargo in the yard while it was unsecured remained to be decided by a jury. Ikon Transportation Services, Inc. v. Texas Made Trucking, LLC., 2020 WL 3488435
A truck broker was found liable for a cargo claim in the First Circuit Court of Appeals in Louisiana. The court held that the Carmack Amendment did not apply because the defendant was a broker and that it could be held liable under state contract law for the claims asserted against it. The court further held that the broker was obligated to ensure the safe transport of the cargo. Ross & Wallace Paper Products v. Team Logistics, Inc. 2020 WL 3840038
When a defendant has actively participated in a suit alleging Carmack damages the District Court in South Carolina was not inclined to dismiss a complaint which was improperly served. Instead the court instructed the plaintiff to do it again, correctly this time! Smith v. Kelso, 2020 U.S. Dist. LEXIS 122602
Household goods claims can be a mess. The battle between a consumer and a carrier heated up in the Eastern District in North Carolina. The court issued an order preventing the motor carrier from taking any action on the goods it was holding while the plaintiff was ordered to pay for storage while the liability issues were litigated. Bryant v. Core Contents Restoration, 202 U.S. Dist LEXIS 128277
Questions of fact remain to be resolved on whether the shipper was solely responsible for the loading of machinery so summary judgment was an inappropriate remedy for the plaintiff’s Carmack Amendment claim against the motor carrier in the District Court in Minnesota. The court also held that there was a question of fact as to the damages, one question whether it was the purchase price of the used equipment or the cost of a replacement, nine times higher. Dubow Textile, Inc. v. Western Specialized, Inc., 2020 WL 4226756
Auto
An attempt to defeat diversity by adding a non-diverse party failed in the Eastern District in Texas. Plaintiff, who was struck when a truck was turning into a driveway, sued the owner of the property claiming it had failed to comply with Texas Administrative Code on the design on the driveway. The court held that it was an improper joinder, dismissing the property owner and keeping the case against the trucker. Metzloff v. Royal Trucking Co., 2020 U.S. Dist. LEXIS 127988
One insurer was successful in depositing its policy limit of one million dollars with the court in a multi truck accident. The District Court accepted the money and dismissed the insurer, noting, however, that the release and dismissal would not extend to any claim by the insured for failure to settle. Amguard Ins. Co. v. Ortiz, 2020 U.S. Dist. LEXIS 122999
The 7th Circuit remanded a case back for a trial after overturning the grant of summary judgment to the motor carrier for a rear end collision. The court held that even though the plaintiff had initially lost control of her vehicle the jury could find that the motor carrier should have been in better control of its vehicle. In addition, the court also addressed the “stateless” issue of the defendant, who no longer maintained a specific residence in a state. That alone was not enough to defeat diversity when the only evidence indicated that the defendant had not given up her domiciled state. Perez v. K&B Transportation, Inc., 2020 WL 4250143
Plaintiff cannot maintain a direct negligence claim, such as negligent hiring, training, supervision, etc., against an employer, while simultaneously maintaining a claim against the alleged negligent employee for which the plaintiff seeks to hold the employer vicariously liable, after the employer has admitted that the employee was in the course and scope of employment at the time of the alleged conduct. The Court of Appeal of First Circuit in Louisiana concluded that the district court properly granted summary judgment dismissing the direct negligence claim against the trucking company. Elee v. White, 2020 WL 4251974
When there was no basis for a claim for punitive damages against a truck driver or his employer the Eastern District of Pennsylvania dismissed those causes of action. Plaintiff could not support any factual allegations which would rise to the level to permit punitive damages to be assessed. Sometimes an accident is simply an accident. Carson v. Tucker, 2020 U.S. Dist. LEXIS 125243
When the plaintiff is a U.S. Citizen who is domiciled in another country, the plaintiff is essentially stateless. The Eastern District of Pennsylvania remanded an action seeking damages against the trucker for a personal injury action as diversity was not present. Ricco v. Goston, 2020 WL 3642863
A motor carrier was not permitted to argue that a plaintiff’s medical bills were not actual damages because the plaintiff had assigned the bill to the medical provider. The fact that the medical bills were not paid and would not be the liability of the plaintiff did not prevent the application of the collateral source rule in the Southern District in Mississippi. Evans v. Roger’s Trucking, Inc. 2020 WL 3803906
Can a settlement agreement be enforced against the driver when his employer, the trucking company, files bankruptcy? The 11th Circuit answered in the affirmative when the settlement agreement unambiguously bound both to pay the judgment without qualification as to how much each must pay. The court held it was an abuse of discretion for the district court to fail to enforce the agreement. Meeks v. Newcomb, 2020 U.S. App. LEXIS 22107
Plaintiff lost the opportunity to add a co-defendant, the lumper service which supervised the offloading on the dock where he was hurt, when he simply waited too long to assert a direct claim. The lumper was a third party defendant already so the plaintiff should have known of the potential claim and brought it in a timely manner, says the Eastern District of Pennsylvania. Sydnor v. KLM Trans, Inc., 2020 U.S. Dist. LEXIS 126096
My friend, and wonderful transportation attorney, Rob Mosley shared a recent decision out of the Iowa District Court addressing the applicability of insurance coverage under two separate trucker’s policies for liability for a single vehicle fatal accident. The court held that the driver was a statutory employee of the trucker under 49 C.F.R. § 390.5, irrespective of whether he qualifies as an independent contractor under Iowa common law, and the employee exclusion applied. The MCS 90 endorsement was not applicable because it does not extend the surety obligation to injuries sustained by ‘employees’ of the motor carrier. On the other hand, the other insurer, who had different employee wording in the exclusion did not fare as well. The pick-up towing the trailer was determined to be a covered auto and that the business use exclusion did not apply to defeat coverage. Thanks Rob for sharing. Progressive Northern Insurance Co. v. The Estate of Roos, EQCV027457
Summary judgment was denied to a plaintiff who claimed he was struck by the rear passenger tire of the cab portion of a tractor trailer. The Appellate Division, 2d Department, in New York agreed with the defendant that there were too many questions of fact as to the liability of the truck driver. Sanders v. Sangemino, 2020 WL 351668
A motor carrier was unable to have a punitive damage claim dismissed in the Western District of Texas. The motor carrier failed to sustain its burden of showing that the plaintiff had no evidence. It was no incumbent upon the plaintiff to establish the claim in response to the motion. Young v. Johnson, 2020 U.S. Dist. LEXIS 128582
Efforts by plaintiff to pursue a construction company for contributing to a multivehicle fatal truck accident failed. The Court of Appeals in Texas affirmed the jury finding that the construction company had complied with the traffic control plan and the accident was the fault of the trucking company. Givens v Anderson Columbia, Co., Inc. 2020 WL 3815926
Even with a rebuttable presumption that a rear end hit was negligent a trucker was successful in defeating summary judgment in the Western District in Louisiana. The court held that the trucker introduced enough evidence to support a potential conclusion that he was not negligent because the plaintiff wrongfully entered the lane of traffic before the impact. Hicks v. Tim Williams Wood Products, 2020 WL 3815265
A plaintiff’s efforts to seek overly broad discovery about prior truck accidents failed in the District Court in New Mexico. While the motor carrier admitted that it “categorizes crashes/accidents for vehicles operating under its [Department of Transportation] number” as “preventable or not preventable” and “by maneuver type, including backing or reversing,” the court held that without further clarification and connection to the loss facts the plaintiff was seeking too much information. Additional requests for information were also denied because the plaintiff failed to connect the demands to the type of accident at issue. Driscoll v. Castellanos, 2020 WL 3581628
While the plaintiff was awarded damages following a trial on the truck accident it apparently was not enough. The 4th Circuit Court of Appeals in Louisiana upheld the trial verdict, rejecting the plaintiff’s request for a JNOV or a new trial, concluding that the jury verdict was supported by the evidence. Harts v. Downing, 2020 WL 3445842
A shipper’s failure to present timely cross-claims against a motor carrier and a broker was potentially fatal in the Middle District in Pennsylvania. The court held that the proposed amendment after discovery was concluded was too late. Ciotola v. Star Transportation & Trucking, LLC., 2020 WL 3619079
Under Louisiana law, separate claims for negligent supervision, hiring, and training will not stand against the motor carrier who has admitted vicarious liability for the driver’s actions. The Eastern District in Louisiana granted summary judgment to the motor carrier. Watson v. Jones, 2020 WL 3791894
Discovery issues were considered by the court in the Eastern District of North Carolina. The trucker’s argument that release of information concerning prior accidents with the driver would violate the California Constitution and confidentiality provisions in various settlement agreements was unavailing. The information would have to be released. Blue v. Hill, 2020 U.S. Dist. LEXIS 122428
Plaintiff was unable to pursue a claim in the Middle District of Florida against a trucking company for an accident that occurred in New Hampshire. Plaintiff was unable to establish any basis for jurisdiction in Florida. Louis v. Milton Transp., Inc., 2020 U.S. Dist. LEXIS 126709
Whether the failure to have a child safely restrained in a vehicle prior to a truck accident constitutes a basis for an affirmative defense of apportionment of fault under Arkansas law is an issue which the Western District of Arkansas determined should be decided by the state court. The court unilaterally decided to certify the question to the Arkansas Supreme Court for an answer. Edwards v. Thomas, 2020 WL 3913533
Worker’s Compensation
Worker’s compensation was the exclusive remedy available to a co-driver said the Eastern District in Texas. The fact that the plaintiffs had completed her driving duties on that particular trip and was asleep in the sleeping berth of the tractor-trailer at the time of the accident was insufficient to exempt her from the worker’s compensation as the sole remedy for damages. Milburn v Colonia Freight Systems, 2020 WL 3542238
Thanks for joining us,
Jean & Chad
