CAB Bits & Pieces July 2021

Are you watching the Olympics?

I know, it seems so weird for the 2020 Tokyo Games to take place in 2021.  But it’s been a weird year and a half and hopefully, we can see the light at the end of the tunnel.  I came across the Olympic creed, and I felt it was worth sharing.

“The important thing in life is not the triumph, but the fight; the essential thing is not to have won, but to have fought well.”

Our wish for everyone is to keep up the good fight and perhaps be inspired to reach even greater heights both personally and professionally.

See you next month!

CAB Live Training Sessions

Brace yourself…there will be no live training sessions during the month of August.  

Wait, what?

Hopefully, this does not throw too much of a cramp into your month, but due to vacations and the like, we are taking the month off.  We look forward to providing more great contact in September.  During that month, we will be updating CAB for Underwriting on September 14th and CAB List Training: Monitoring, Carrier Health & Summary Reports on September 21st.   Both of those sessions are available for registration by clicking on the session title above.

As a quick reminder, last month’s sessions, Grow Your Business with SALEs – Targeted Leads Generator and How to Update Motor Carrier Data have been uploaded to our Webinars Page if you missed them!  

To access all our previous webinars, click here.

Follow us at CAB Linkedin Page  CAB Facebook Page

*HOT TOPIC!!!  CAB’s Tips & Tricks: Updating Motor Carrier Data

For those of you who were able to attend our most recent live webinar “How to Update Motor Carrier Data” on Tuesday, July 20th, you are already “in the know” regarding updating motor carrier data that might be incorrect.  This is a hot topic and we get questions related to this frequently.  As Mike Sevret (Sr. Account Manager) noted during the webinar, we are often approached regarding how to go about updating motor carrier information like business/mailing addresses, legal/dba names, company representatives, and the like.  By hovering over the icons next to the information, we are able to tell you where that information is coming from.  Examples could be SAFER, Licensing & Insurance, etc.  If the information needs to be updated, we’re able to share with you which government entity or entities the information should be updated with.   

As Mike noted, when the data is updated, the changes are not immediate in the CAB Report®.  There is a deliberate lag in place, and I encourage you to watch the video to understand the reason for the lag.

If you’ve come across these situations or are intrigued by this topic, I encourage you to review and share internally this quick 22-minute video to learn more about this topic.  That video can be accessed here.

THIS MONTH WE REPORT:

FMCSA’s Oversight of CDL Compliance Called into Question:  The Department of Transportation Office of Inspector General, in an audit of FMCSA’s oversight of states’ actions to disqualify commercial drivers when warranted, found that the agency has gaps and other challenges in this area.  According to OIG’s report, states did not transmit electronic conviction notifications in a timely fashion 17% of the time, including 18% of 2,182 major offenses and 17% of 23,628 serious traffic violations. OIG also estimates that 11% of 2,182 major violations were not posted to driver records in a timely fashion, and 2% of the 23,628 serious traffic violations weren’t posted at all. OIG made seven recommendations to strengthen the agency’s oversight, which FMCSA agreed to undertake.  For more information, click here.

Advanced Driver Assist Systems vs. Complacency: The principal conundrum of advanced driver assist systems like collision mitigation, lane-keeping cruise, and more was summed up well by Nussbaum Transportation driver Clark Reed as part of the panel featured in today’s edition of Overdrive Radio: “The more we take the driver away from the driving experience … [the greater the potential] they’re going to become lackadaisical.”  Put another way, we’re talking about, in a word, complacency – the strong temptation to let the equipment take the responsibility for the work of safe operation from the hands of those to whom it truly belongs.  For the complete article and Podcast, click here.

Inspectors Remove More Than 1,200 Commercial Motor Vehicles With Critical Brake Violations From Roadways During CVSA’s Unannounced Brake Safety Day: Commercial motor vehicle inspectors in Canada, Mexico, and the U.S. conducted 10,091 inspections and placed 1,273 vehicles out of service for brake-related critical vehicle inspection items on May 26.  Each year, for Brake Safety Day, CVSA-certified inspectors conduct inspections, focusing on the vehicle’s brake systems and components, and remove commercial motor vehicles with brake-related out-of-service violations from roadways. Here are the results:  Six jurisdictions from Canada, 42 U.S. jurisdictions, and Mexico’s Ministry of Communications and National Guard participated.  The brake-related out-of-service rate in North America was 12.6%.  The U.S. brake-violation out-of-service rate was 13.3%. In Canada, the rate was 11.4% and in Mexico, the rate was 2.9%.  Fourteen vehicles were removed from roadways in Mexico for brake violations. In Canada, 108 vehicles were placed out of service for brake violations, and in the U.S., 1,151 vehicles had to be removed from roadways due to brake violations.  For more information, click here.

FMCSA Proposes Rule Changes to Accommodate Additional Device Mounting on Windshields:   On Tuesday, July 6, 2021, Federal Motor Carrier Safety Administration (FMCSA) proposed to change the rules for windshield-mounted cameras in commercial motor vehicles (CMVs). The proposed changes would make filing for an exemption and prior company-specific exemptions unnecessary. The changes would define vehicle safety technology as “fleet-related incident management systems, performance or behavior management systems, speed management systems, lane departure warning systems, forward collision warning or mitigation systems, active cruise control systems, transponder, brake warning systems, automatic emergency braking, driver camera systems, attention assist warnings, Global Positioning Systems, and traffic sign recognition systems.”  For more information, click here.

A New Shortage is Impacting the Freight Market, and it has Nothing to do with Drivers: A panel of trucking industry experts came up with a new way of looking at the trucking industry’s number one problem that just might turn the conventional wisdom about a “driver shortage” on its head. This, in addition to a look at the U.S. economy’s response to the pandemic pushing the trucking industry to historically high rates and tight capacity comprised FTR Transportation Intelligence’s webinar on Thursday last week.   “In a nutshell, the economy is doing well,” said FTR Vice President of Trucking Avery Vise. “We’ve seen a strong rebound from the contraction early in the pandemic, but neither industrial production or manufacturing output is where they were before.”  Overall, FTR’s panel of experts predicted rates would slightly drop off all-time peaks but stay high through 2022, trucking capacity will remain an issue, and a meteoric rise in small new trucking companies may be muddying the waters around the industry’s much-feared labor shortage. Here’s what the experts talked about, and what fleet owners and drivers alike need to know about the current state of the economy.  They discussed four main issues related to the topic, which can be found here.

New Texas Law Deals Blow to Reptile Theory Trial Strategy in Crash Litigation: Lawmakers in Texas last month passed a bill, which has since been signed into law by Gov. Greg Abbott, that adds a layer of protection for motor carriers in post-crash litigation. The law will go into effect Sept. 1.  Known as HB19, the law requires a jury to find a trucking company or truck driver liable for a crash before exemplary damages can be sought in a civil case. It allows a defendant trucking company to request a two-phase trial in which the first phase would be used to determine liability for the crash itself and the amount of compensatory damages awarded. The second phase would be used to determine any negligence from the motor carrier, such as driver training or equipment problems, and the amount of exemplary damages awarded. The law strikes a blow against plaintiff’s attorneys who have used the Reptile Theory to go after trucking companies for large verdicts during a trial, regardless of whether the trucking company was at fault for the accident.  For more information and a video on this new law, click here.

Freight Volume, Rate Trends: Across Indices, Signs of Market Cooling:  The American Trucking Associations’ long-running seasonally adjusted For-Hire Truck Tonnage Index lost another 1.5% in June after falling 1% in May.  ATA Chief Economist Bob Costello called it a sign of contract freight volumes having “flattened out, on average, over the last six to nine months.”  The bit of good news in the update was that tonnage levels remain “slightly above 2020 levels” for the same months, he added. “Supply chain issues are likely putting some downward pressure on tonnage” in the contract market. Industry-specific supply constraints themselves could also be factors in the flat trajectory, at once. “For-hire truckload carriers have seen their tractor counts fall because they are having difficulty finding qualified drivers” they want, he said. “It is difficult to move more tonnage with less equipment,” sending volume to the spot market, where many independent owner-operators do business.  For more information on Freight volumes affecting our customers and prospects, click here.

AUTO

Plaintiff’s efforts to claim that a motor carrier was the owner of an unidentified trailer which started a chain reaction accident was unsuccessful in the Court of Appeals in New Mexico. The court granted summary judgment to the defendant, concluding that plaintiff’s theories were not enough to create a genuine issue of material fact. Lopez v. Domingo, 2021 WL 2653022

What happens when a suit is timely filed in a Texas Federal Court and then transferred by that court to a District Court in Louisiana when it decides that it does not have jurisdiction over the defendant and the statute of limitations is different in the second venue? The 5th Circuit Court of Appeals held that the suit against the trucker was deemed timely in the second venue. Applying 28 U.S.C § 1631, which allowed the court to transfer the case, the plaintiff was deemed to have filed his claim “in a court of competent jurisdiction and venue” in a timely manner and thereby interrupted the one-year prescriptive period under Louisiana law. Franco v. Mabe Trucking, 2021 WL 2849971

The Supreme Court in Mississippi held that allowing cross-examination of the plaintiff’s expert witness with the accident report which contained hearsay and a judicial opinion from another case in which the expert’s opinion was rejected amounted to reversible error. The case was remanded back for a new trial. Murray v. Gray , 2021 Miss. LEXIS 187

Claims against truck brokers continue to be a point of contention – preempted or not. This month the Western District of Louisiana agreed that the plaintiffs’ negligence claims against the broker for negligently hiring a motor carrier were related to brokerage services but fell within the safety exception of FAAA. The claims against the broker were permitted to proceed. Bertram v. Progressive Southeastern Insurance Co., 2021 WL 2955740 The issue may be coming to a head as the Supreme Court accepted a truck broker case and the issue may be put to bed once and for all in the coming year.

Unfortunately for the motor carrier the Southern District of Georgia concluded that it was premature to grant summary judgment on claims of negligent hiring, entrustment, supervision, retention and punitive damages. As there were facts which a jury could use to support a judgment against the motor carrier the claims were permitted to proceed. Tuk v. U.S. Xpress, Inc.2021 U.S. Dist. LEXIS 129389

When there was no evidence that plaintiff suffered after a fatal impact with a truck, the Southern District of Mississippi granted partial summary judgment on the claim for conscious pain and suffering Crechale v. Carroll Fulmer Logistics Corp., 2021 U.S. Dist. LEXIS 133714

A plaintiff’s submission of a claim under her underinsured motorist coverage was enough to show the court that she believed her damages were in excess of $75,000 when the motor carrier had one million in coverage available. The Northern District in Oklahoma held that her husband’s claim for loss of consortium would be considered under the court’s supplemental jurisdiction even if it was below $75,000. The case was permitted to stay in federal court. Cunningham v. Norris, 2021 WL 3017504

The Middle District of Pennsylvania refused to dismiss a claim for punitive damages and allegations of recklessness against a truck driver. The court held that it was too premature to dismiss these allegations and claims when the plaintiff sufficiently alleged that the driver operated the vehicle recklessly. Allegations that the trucking company failed to adequately train, supervise, educate and manage the driver, and entrusted its vehicle to a driver who it knew or should have known would likely conduct himself in a manner that would create unreasonable risk of harm to others would be enough to support the claims at this state of the litigation. Collins v. Holsinger, 2021 WL 3033833

The Northern District in Illinois concluded that no party was entitled to summary judgment on the issue of whether a possible insured’s lack of cooperation in the defense of a claim against a trucking company precluded coverage under the trucker’s auto policy. On a positive note the court said that the MCS-90 did not preclude application of the duty to cooperate condition when the insured at issue was not the named insured on the MCS-90. Am. Inter-Fidelity Exch v. Johnson, 2021 U.S. Dist. LEXIS 137644

The District Court in Delaware held that an insurer did not have a duty to provide the minimum liability limits required by motor carriers,when the motor carrier never requested the MCS-90 limits at that level.. Once an insurer had paid its policy limits it had no obligation to extend coverage to the limits required by the FMCSA. The duty to request higher limits under an MCS-90 rested with the motor carrier and not the insurer. Phila. Indem. Ins. Co. v. Transit U, Inc., 2021 U.S. Dist. LEXIS 136595

The Third District Court of Illinois reversed, in part, a judgment against a farm owner when it agreed that a truck driver who injured the plaintiff was not an agent of the farm where he provided services. The court held that when the farm did not own the tractor and there was no evidence that the farm knew he was taking the vehicle onto the public roadway, or authorized him to perform those additional services, a judgment against the farm should be vacated. O’Brien v. Jensen, 2021 IL App (3d) 190103-U

The Court of Appeals upheld a multi-million dollar jury verdict against a truck driver and its employer in a suit involving two commercial vehicles. Among other things the court agreed that it was permissible for the trial court to allow evidence of prior similar violations that the defendant received, along with earlier communication from the DOT regarding a pattern of violations. It is important to know about these issues when evaluating any liability claim. As always, we are here to help our subscribers with litigation support on these types of concerns. Press Energy Services, LLC v. Ruiz, 2021 WL 3013313

When the insured motor carrier included the injured plaintiffs in its suit seeking a declaration of coverage under its excess policy, the District Court in New Mexico agreed that those defendants were not nominal defendants. Since they were not diverse to the plaintiff the case was remanded back to state court. Power of Grace Trucking, LLC v. Weatherby-Eisenrich, Inc. 2021 WL 2682729

Whether the truck driver struck the plaintiff because the sun was in his eyes, or he was talking on a cell phone was not a necessary determination prior to the court determining if punitive damages were warranted. The District Court in Vermont held that plaintiff had not established that the defendant maliciously engaged in wrongful conduct that was outrageously reprehensible sufficient to make punitive damages an issue for the finder of fact. The claim was dismissed. Gennette v. Peacock, 2021 WL 2688805

A defense verdict rendered in favor of a motor carrier was upheld in the Supreme Court of Virginia. It was an interesting case since this was a single vehicle accident and the question was whether the plaintiff was the driver or the passenger. The Supreme Court held that the circuit court did not exceed its range of discretion in excluding the experts’ testimony on who was driving, which apparently led to the jury concluding that there was no liability on the part of the motor carrier and its employee. Lucas v. Riverhill Poultry, Inc. 2021 WL 2692440

The Court of Special Appeals affirmed the decision of the trial court to allow the expert testimony proffered by the motor carrier. The unopposed expert testified that the plaintiff should have seen the truck, resulting in a defense verdict. Plaintiff waited too long to raise discovery concerns when the expert report was not timely presented by the defendant. Watson v. Timberlake, 2021 WL 2801760

The argument that a plaintiff cannot assert both a negligence and negligent employment cause of action when the employer concedes liability was rejected. The Supreme Court of Utah held that the plaintiff was entitled to present evidence of negligence in hiring a truck driver to support additional damages even when the trucking company conceded vicarious liability for the actions of the driver. Sheppard v. Geneva Rock, 2021 UT 31

How much can you get in discovery about other drivers working for a motor carrier? In this case the plaintiffs were passengers on a bus that was hit from behind on the New Jersey Turnpike by a tractor-trailer and they claimed that the truck driver fell asleep. The District Court in New Jersey ruled that the plaintiffs were entitled to see information where other company truck drivers fell asleep at the wheel (or were tired, sleepy) and caused harm, and any analysis and/or preventative steps taken as a result. Bing v. Spinelli, 2021 WL 2826124

Whether the fight over the amount of premium to be returned to the motor carrier would be addressed in the state where the policy was issued to the insured, or the state of the insurer came down in favor of the insured. The District Court in Utah dismissed the insurer’s suit. Of note is the fact that the court threw out both of the forum selection clauses asserted by the insurer, noting that the forms had not been approved by Florida, where the policy was issued. Prime Property & Casualty Ins v. Allied Trucking of Florida, Inc. 2021 WL 2810094

Who hit who? The District Court in Louisiana concluded that there were just too many questions of fact on whether the passenger vehicle entered into the trucker’s lane, or if the trucker entered the plaintiff’s lane before the impact. Off to trial they go. Stewart v. Quality Carriers, Inc., 2021 WL 2708924

CARGO
When the owner of an RV was unaware that the dealership was going to ship the vehicle out of state for repairs, and it was damaged in transit, the Eastern District of Kentucky held that the preemptive effect of the Carmack Amendment might not apply. The court remanded the case back to state court to allow the owner to potentially litigate state law claims since they were not a party to the bill of lading. Handshoe v. Day Bros., 2021 WL 2903232

Another case was remanded back to state court when the plaintiff’s complaint did not specifically allege a claim within the Carmack Amendment. The court held that the defendant’s claim that it had a defense of preemption under the Carmack Amendment was not enough to confer jurisdiction. Law Office of Guy Levy v. Moishe’s Moving System, 2021 WL 2895748

Plaintiff was able to collect both actual damages, attorney’s fees and prejudgment interest against a motor carrier under the Carmack Amendment. The District Court of Arizona held that the extra damages were permissible for a claim arising from the transportation of household goods. Hiles v. Progressive Relocation Sys., 2021 U.S. Dist. LEXIS 135104

In determining the value for a shipment of overripe fruit, the Southern District of Florida, i held that the amount of damages was calculated using the difference between the sound market value of an equivalent shipment of blueberries that arrived undamaged at or around the same time, and the value of the shipment at issue during the salvage sale. Mund & Fester GMBH & Co KG v. Warsaw Transp., Inc., 2021 U.S. Dist. LEXIS 133017

TOW COMPANIES
Ah, the never ending tow company saga. This month the District Court in Maryland ordered the tow company to return a damaged vehicle, and the cargo inside, to the motor carrier. The motor carrier was required to put up a bond for the amount of the tow bill. It should be noted that the court accepted the proposition that, without a lien, a towing company has “no right” to charge for storage after receiving a demand from a vehicle’s owner for its return. There was no lien when the tow was not undertaken at the request of the motor carrier, but was directed by the authorities at the accident site. Crete Carrier Corp. v. Sullivan & Sons, Inc., 2021 WL 2766903

In another case the Supreme Court, Appellate Division, Third Department in New York upheld a default judgement against a motor for tow and wrecker charges in the amount of $86,441.39. While the plaintiff had not moved to complete the default within one year the court held that there was sample evidence that the tow company intended to pursue the damages and so allowed the late default. Gerster’s Triple E Towing & Repair, Inc. v. Pishon Trucking, LLC., 2021 WL 2829559