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Bits & Pieces

June 2021

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Happy Independence Day!

We’re well into summer, looking forward to the 4th of July and hopefully a more normal celebration.  It’s great to see folks getting out and about again.  Don’t tell the kids, but the back-to-school supplies are already stocked in the stores and waiting for them.  From our team to yours, have a great and safe 4th of July.  

See you next month!

CAB Live Training Sessions

Tuesday, July 13th @ 12p EST: Sean Gardner will present Grow Your Business with SALEs – Targeted Leads Generator. Target companies within your specific appetite with over 100+ filters. Search by insurance renewals, fleet size, commodities, and many other options. Don’t miss this one, we’ve also added several new enhancements!  Click here to register.

Tuesday, July 20th @ 12p EST: Mike Sevret will present, How to Update Motor Carrier Data.  In this session, we will go over how to update motor carrier data. From company names to power units, DataQs, and much more!  We get these questions often and we’re here to provide the answers.  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

As a quick reminder, last month’s sessions,  Intro to CAB: Flow and Navigation. and BASICs Calculator: Tips & Tricks have been uploaded to our Webinars Page if you missed them!  

Follow us at CAB Linkedin Page  CAB Facebook Page

CAB’s Tips & Tricks: CAB List™ adds a new alert feature

There is now a total of 8 alerts available in CAB List™.  In addition to alerts for BASICs, Crashes, ISS, Inactive Carrier, Out of Service, Inspections, and Safety Rating, we have added Pending/Canceled Policies.  We encourage you to add motor carriers to your CAB List™ to monitor them during the policy period for improvement or otherwise.  As with the previous alerts, you are not automatically subscribed to the alerts.  You need to click the “plus” button next to the alert you would like to add, see below.

By subscribing to the Pending/Canceled Policies option, you will be alerted when:

Pending Cancelation – policies with a cancel date within the next 5 days. 

Canceled – policies with a cancel date in the past 5 days and with either a canceled or replaced close action, that were not replaced 

You have the option to be notified when the policy Was Canceled and/or when the policy Is Pending Cancellation, see below.

We encourage you to familiarize yourself with this new alert as this is a great tool for monitoring policy filings for customers and prospects.  

THIS MONTH WE REPORT:

Drug and alcohol violations in 2021 outpacing 2020 numbers through first quarter: The Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse has now been in effect for a year and a half, and through the first quarter of 2021, drug and alcohol violations are on pace to be higher than in 2020, according to data from FMCSA available through March. As of April 1, there were more than 2.1 million users registered in the Clearinghouse, including truck drivers, fleet representatives, consortia/third-party administrators (C/TPAs), medical review officers (MROs), and substance abuse professionals (SAPs). While none of the regulations regarding drug and alcohol testing and reporting have changed, the Clearinghouse is starting to make it easier for fleets to conduct pre-employment screenings of their drivers.  For the complete article, click here.

FMCSA formally delays implementation of electronic med cert rule…again:  The agency previously delayed the implementation date of its Medical Examiner’s Certification Integration final rule from June 22, 2018, to June 22, 2021. It will now delay the implementation until June 23, 2025. FMCSA says the delay will give the agency “time to complete certain information technology (IT) system development tasks for its National Registry of Certified Medical Examiners and to provide the State Driver’s Licensing Agencies (SDLAs) sufficient time to make the necessary IT programming changes after the new National Registry system is available.”  For more information on the Extension of Compliance Dates, click here.

Truck Cargo Thefts Up Significantly During Pandemic: CargoNet reported 1,502 total theft events for 2020. That compared with 1,106 in 2019 and 1,181 in 2018. These numbers include both cargo and vehicle thefts, which can overlap since oftentimes both are stolen. Thefts specific to cargo reached 1,059 events in 2020, compared with 758 in 2019 and 797 in 2018. Vehicle theft events reached 861 in 2020. Before that, they were 676 in 2019 and 810 in 2018.  Additionally, full truckload thefts increased by 25% in 2020.  Another big change last year was Texas overtaking California as the No. 1 state for cargo thefts.  The change was noteworthy because California held the top spot for decades. Both states saw cargo thefts rise in 2020; Texas just saw a larger increase.

ATA Truck Tonnage Index falls for the second straight month:  The American Trucking Associations’ advanced seasonally adjusted For-Hire Truck Tonnage Index decreased 0.7% in May after falling 0.6% in April. The index was 113.7 in May, compared to 114.5 in April. “Tonnage, despite falling slightly over the last two months, remains well above the lows of last year,” said ATA Chief Economist Bob Costello. “This is no small deal considering that truck tonnage fell significantly less than many other indicators during the depths of the pandemic in the spring of 2020.” Costello noted that gasoline shipments are helping keep tonnage elevated as demand for travel increases.  For more on this topic, click here.

Can fleet safety execs defuse ‘Reptile’ litigation approach?  In a June 2020 report, the American Transportation Research Institute (ATRI) counted a 967% increase in the average size of verdicts, from $2,305,736 in 2010 to $22,288,000 in 2018.  The Reptile Theory approach is often used by the plaintiff’s bar. When deposing the truck driver involved in the accident, the line of questions from the attorney is aimed at getting the driver to claim ignorance of certain regulations or training they have received by their carriers.  For this reason and others, driver training is not a one-time event, argues Mark Murrell, co-founder of CarriersEdge, a provider of online driver training for the trucking industry. “An effective program instills in drivers and employees alike a sense that safety is not only a significant part of the company’s culture but also an ongoing process,” he said.  To learn more about this topic, click here.

DOT Reportable Crashes: Total and 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 prior 12 month period.  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.

Attorney’s guilty plea is 23rd in widespread staged-accident fraud scheme: Just days after two guilty pleas in the widespread staged-accident fraud scheme in New Orleans, an attorney who played a role in the scheme also entered into a guilty plea, according to U.S. Attorney Duane A. Evans.  Attorney Danny Patrick Keating Jr. pleaded guilty to conspiracy to commit mail and wire fraud for his involvement in the case. Keating admitted to conspiring with Damian Labeaud and others to defraud insurance companies, commercial carriers, and trucking companies. Labeaud referred staged accidents to Keating and other New Orleans personal injury attorneys for $1,000 per passenger for accidents involving trucks and $500 per passenger for accidents not involving trucks. Keating reportedly advanced Labeaud thousands of dollars for the accidents and instructed Labeaud that he owed Keating a certain number of accidents based on the amount of money advanced. Keating admitted he knowingly paid Labeaud for 31 staged truck accidents. He represented 77 plaintiffs involved in the 31 accidents staged by Labeaud. He also settled 17 of the 31 staged accidents, earning his clients approximately $1.5 million. Keating faces a maximum term of five years in prison and a fine of $250,000 or twice the gross gain to the defendant or twice the gross loss to any person of the offense.  From CCJ News Brief.

Fleet owner sentenced for falsifying FMCSA documents: Michael Chaves, the owner of Rhode Island-based CAT Transportation, has been ordered to pay $424,598 in restitution to his victims and $207,270 to the Internal Revenue Service after using another person’s identification without his or her permission to falsify motor carrier registration documents. According to the Department of Transportation Office of Inspector General, Chaves was sentenced on March 10 to two-and-a-half years in prison, three years of supervised release, and a $1,000 special assessment. OIG says Chaves used another person’s identification to falsify Federal Motor Carrier Safety Administration documents to hide an affiliation with a company under a federal out-of-service order. He also generated false documents to show compliance with FMCSA rules and regulations, OIG adds.

CASES

Cargo

A cargo owner was precluded from asserting a direct claim against a motor carrier under the federal cargo claim regulations. The Northern District of Illinois held that 49 CFR 370.11, which obligates a carrier to salvage cargo, did not create an independent cause of action when the cargo owner claimed that the motor carrier did not properly salvage the cargo after the loss. Nexus Alarm & Suppression, Inc. v. MG Logistics, Inc., 2021 WL 2156451

Preemption was once again enforced in the Northern District of New York after removal of the case to federal court. The court permitted the plaintiff to amend the complaint to assert only a Carmack Amendment claim and rejected plaintiff’s claim that the case could still be remanded to state court even when only the federal claim remained. 3DPhoto Works, LLC v. YRC Worldwide, Inc. 2021 WL 2142971

Same held true in the Southern District of Texas where all state law claims were preempted. Good decision to see how the court addresses evidence in support of a prima facie case. The court held that the plaintiff produced enough evidence to show a prima facie case but that the motor carrier had properly limited its liability. Houston Granite & Marble v. DRT Transportation, LLC., 2021 WL 2366100

A default judgment was entered against a motor carrier in the Eastern District of California. When there was a contract which extended the potential damages to expenses and fees the plaintiff was able to increase the judgment beyond the actual damages to the goods. Just a reminder to underwriters to know what the contract says about damages. Sunteck Transportation Company, LLC v. TCSL, Inc., 2021 WL 2349889

Auto
While ultimately the plaintiff may not be successful, the Eastern District of Pennsylvania held that the plaintiff could amend his complaint to assert causes of action for recklessness, punitive damages and negligent hiring, retention, and supervision arising from a truck accident. The court noted that the standard for futility is the same as that on a motion to dismiss— evidence is not required to support the amendment as long as the amendment is done early in the case, before discovery. White v. Bush, 2021 WL 2255981

A plaintiff was unsuccessful in obtaining a judgment for attorney’s fees against a motor carrier’s insurer when plaintiff claimed that the motor carrier did not timely address the demand. The Southern District in Texas agreed that the plaintiff failed to comply with the statutory requirement that the insurer be given 30 days notice to address any claim. Puga v. NY Marine & Gen. Ins. Co., 2021 U.S. Dist. LEXIS 118798

The Appellate Court in Connecticut agreed with an insurer that a motor carrier’s policy provided no uninsured motorist coverage to an injured truck driver. As the vehicle was not registered or principally garaged in Connecticut the court looked to Tennessee law which did not require that coverage. Finley v. W Express, 2021 Conn App. LEXIS 216

Reminder that you can seek reimbursement for payments made under the MCS-90. The Central District in California granted a default judgment to the insurer for the payments made on behalf of the motor carrier, also agreeing to a declaration that there was no coverage under the policy. As the motor carrier is defunct, collecting will be difficult we suspect. A One Commer. Ins. RRG v. Le, 2021 U.S. Dist. LEXIS 119185

A motor carrier’s defense of contributory negligence when the driver of the vehicle it struck failed to secure a child passenger in a child seat failed in the Supreme Court of Arkansas. The court, in answering a certified question, concluded that a statute which held that failing to use a child-safety seat was not a negligent act and therefore could not be used to compare the injured plaintiff’s fault to the fault of the motor carrier. Edwards v. Thomas, 2021 Ark. 140

I was just talking to one of our subscribers about the tangled web that is presented when there are multiple trucking operations operating with similar ownership/relationships. The Western District of Pennsylvania agreed that an injured police officer could amend his complaint to add in additional corporate defendants which he claimed may be alter egos of the target defendant and therefore liable for the damages he suffered. It is important to pay attention to that exposure as defense costs, and possible indemnity exposures, can grow with interrelated entities. Fennell v. Tacu, 2021 WL 2338737

In the 11th District Court of Appeals in Ohio the court reversed a decision dismissing a complaint against the truck broker for negligently hiring a motor carrier who injured the plaintiff. The court acknowledged the split of authority on whether these claims were preempted by FAAAA but determined that the claims were subject to the safety regulatory exception under FAAAA. Quinones v. Ladejo, 2021 WL 2413329

While the court in the Eastern District of Missouri agreed that the plaintiff had not alleged a claim for negligence per se when she could not point to a statute which supported a duty of care, the court allowed other causes of action, for negligent hiring, retention and training to stay. The court also held that under Missouri law, punitive damages are permissible where a trucking company fails to observe motor carrier regulations and industry standards which result in injury. Allegations in support of a reptilian theory against the motor carrier were also permitted to proceed, with the court noting that the defendant would have to wait till trial to seek to exclude those allegations. Sanford v. K&B Transportation, Inc., 2021 WL 2588902

Plaintiff was unable to continue to sustain a claim against a motor carrier when the plaintiff struck the motor carrier in the rear. Plaintiff’s claim that he only looked down for a second to check his cell phone and therefore the motor carrier must have slowed down improperly, or changed lanes impermissibly failed. The Western District of Texas granted summary judgment to the motor carrier. Flambures v. McClain, 2021 WL 2444951

A plaintiff’s claim against the trucking company for damages in a two truck accident, which was based upon vicarious liability, was permitted to stand in the Western District of Oklahoma. However, as the defendant conceded vicarious liability if the driver was acting within the scope of his employment, claims for negligent training, retention and supervision were not permitted to proceed. CTC, Inc. v. Schneider National, Inc., 2021 WL 2295512
A plaintiff was unsuccessful in seeking an adverse inference when the motor carrier disposed of man

of its required DOT documents, including driver and vehicle records. The Middle District of Pennsylvania held that the plaintiff had not proven that the defendant was aware of the pending litigation when he disposed of the records. The court also addressed what information could be admitted into evidence to support the claims that the motor carrier was negligent in following regulations. This is a good case to read to understand how much of the data can come into a case. The court also agreed that the determination by one of the motor carriers that the accident was preventable should not be admitted into evidence. Shelton v. Gure, 2021 WL 2210989

The evaluation of expert testimony is often critical to how the case will be presented at trial. Understanding how the courts will dig deep into the process and procedures of the experts is important. With the use of data and algorithms as a critical piece of reconstruction, this decision in Georgia is an interesting read. The Southern District of Georgia considered whether the designated software program could be used to evaluate the expected stopping times for the rear end truck hit. The court determined that a second expert was qualified to testify on hiring and retention in the trucking industry and whether the driver’s operation of the vehicle met industry standards. The 2 decisions addressing various discovery experts are available. Tuk v. U.S. Express, Inc. 2021 WL 2433800 and 2021 WL 2433799

The Northern District of Ohio held that a plaintiff could not pierce the corporate veil of one corporation to reach its sister corporation. Even though the trucking company and the leasing company had common individual shareholders neither corporation has any ownership interest in the other corporation. The case against the leasing company was dismissed. A good case to remind you that it is important to understand the relationship between related entities as they are often pulled into cases which are brought against other related companies. Hay v. Shirey, 2021 WL 2043151. In a related decision the court agreed that there should be a cap on noneconomic damages as the plaintiff had not met the statutory requirements to defeat the mandated cap. 2021 WL 2210565

The non-trucking policy was held applicable when the accident occurred at a time when the truck driver was driving the truck to his acquaintance’s house for repairs. The Court of Appeals in Georgia held that as the policy did not define the term “personal use.” or reference the FMCSA regulations in outlining the scope of its coverage, the lower court did not err in finding that the driver was not driving the truck for business reasons at the time of the accident. American Southern Insurance Co. v. SPN Trans, LLC, 2021 WL 2252073

This was a first for me. The 5th Circuit Court of Appeals in Louisiana agreed that a motor carrier was not liable when its stopped truck was toppled by a tornado and fell on the plaintiff’s vehicle. The plaintiff’s argument that the truck, which was stopped at the time, should not have been on the roadway at all due to the inclement weather, was not accepted by the court. Smith v. Great American Insurance Co., 2021 WL 2133047

The First Circuit Court of Appeals in Louisiana reversed a grant of summary judgment in favor of an insurer, concluding that the insurer had not properly cancelled the motor carrier’s insurance policy for non-payment of premium. Because the notice indicated that the policy “will be cancelled” and not that the policy was cancelled the notice was not clear. Jarvis v. Foremost Express, 2021 WL 2213315

The Supreme Court in Illinois held that it would be inequitable to allow recovery of additional sums against a settling tortfeasor following a trial on the liability of all. The court agreed that the Joint Tortfeasor Contribution Act did now allow allocation of those additional sums on a pro rata basis on a theory that the additional sums was uncollectible from a defendant who had already settled. Roberts v. Alexandria Transportation, Inc., 2021 IL 126249

A truck driver was unsuccessful in his claim against a shipper for improperly loading a shipment which resulted in an overturn and injury to the driver. The Western District of Kentucky continued to support the Savage rule, that a shipper was responsible only for a latent defect not discoverable by the driver. Murrah v. TDY Industries, 2021 WL 24606612

When the plaintiff would not concede that the injuries suffered from a truck accident would not equate to a judgment of more than $75,000, even when punitive damages were alleged, the case was remanded back to state court. The Northern District of Alabama held that it was the defendant’s burden to show that it was facially apparent from the complaint that the damages would exceed the limit, something it could not do. Crooks v. Murrow’s Transfer, 2021 WL 204943.

The Southern Division in Alabama found the same result for the same reasons. Williams v. Yakima, 2021 U.S. Dist. LEXIS 115110

Partial summary judgment was granted to the motor carrier in the Eastern District of Louisiana. When the motor carrier admitted vicarious liability the plaintiff could not assert a direct/independent negligence cause of action against the motor carrier for its alleged negligent entrustment, hiring, training and supervision of the driver. Angelin v. Thrive Logistics, 2021 WL 2187926

The Middle District of Pennsylvania was not as favorable to the motor carrier. The court denied the motor carrier’s request to dismiss a punitive damages claim. The court held that allegations that the driver violated the law by speeding, driving while distracted, and consciously choosing to speed into an active construction zone was enough to support the claim at the early stages of the litigation. Calabrese v. Graham, 2021 WL 22902811

Worker’s Compensation
The Western District of Missouri held that a worker’s compensation insurer was entitled, as a matter of right, to intervene in a personal injury action brought against a trucking company for injuries to a roadside construction worker. It was interesting to note that the court reached this decision, in part, because a portion of the personal injury claim sought damages which were not subject to the worker’s compensation claim and therefore without its presence in the suit the insurer’s interest would not be protected. McGhee v. Khalilov, 2021 WL 2516086

© 2021 Central Analysis Bureau