CAB Bits & Pieces March 2019
Happy Spring CAB Nation!
Well, spring is finally here. The weather is more spring-like in certain areas, but less in others. Regardless, astronomical spring arrived on March 20th and I’m expecting warmer weather! Some of you may be coming off of spring break trips. I hope you had safe travel and were able to re-charge those batteries in anticipation of the warmer weather.
With the potential for beautiful weather, it’s a good time to remind ourselves to look out for pedestrians and bicyclists that may now be sharing the roads with us. Additionally, it’s important to be extra aware of children especially in residential areas and school zones.
Have a great month!
CAB’s Tips & Tricks:
This month’s enhancement is located on the Inspections / Accidents tab in the Motor Carrier/CAB Report. Based on input from users, our developers have added a Vehicle Age Breakdown table (yellow arrow).
The Vehicle Age Breakdown section provides the age of both power unit and non power units at the time of the inspection. The table defaults to 24 months of inspection information, but you can also adjust it to 12 months if you’d like to view less data. Keep in mind, vehicles can be inspected multiple times during the 12 or 24 month period. The Vehicle Age is broken down into 5 convenient buckets for quick review and understanding. For additional detail, you can click on the blue numbers for a complete list of all vehicles inspected during each time period. This tool is useful for quick-view understanding of fleet age and demographics.
As with many of our enhancements, this tool was brought to you by a user that reached out to us with this suggestion. 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:
Commercial Vehicle Safety Alliance (CVSA) sets dates for International Roadcheck. On March 25th, the CVSA published that the International Roadcheck will take place June 4-6, 2019. The emphasis for 2019’s International Roadcheck will be Steering and Suspension. During that 72-hour period, Commercial Motor Vehicle Inspectors throughout North America will conduct inspections on CMVs and Drivers. International Roadcheck is the biggest enforcement program on CMVs in the world. Roughly 17 trucks and buses are inspected every minute in the U.S., Canada and Mexico during the 72 hours. For more information on the 2019 Roadcheck, click here.
NIOSH reports higher injury and death rates found in Motor Vehicle Towing Industry. From the years 2011 through 2016 nonfatal injuries and illnesses were roughly double the rate for all U.S. private industries. Additionally the motor vehicle tow industry suffered a fatality rate 15 times that of all U.S. private industries. More information on this topic can be reviewed by clicking here.
FMCSA only DOT administration with an increase in the Presidential Budget. The President’s recently submitted budget for 2020 has a 22% reduction in discretionary funding for the Department of Transportation. However, the Federal Motor Carrier Safety Administration will have a budget of $675.8 million, an increase of $9 million from the 2019 budget. Included in the FMCSA proposed budget is $288 million for safety operations and programs, an increase of $4 million. Additionally there was a $5 million increase in safety grants. The Office of the Secretary was provided a large budgetary increase of $1.105 billion for a total of $2.492 billion. Additional specifics related to the 2020 DOT Budget Highlights can be reviewed here.
ATRI releases study on Marijuana Legalization and Impaired Driving: Solutions for protecting our Roadways. The conclusion to the report is as follows: The increasing use of medical and recreational marijuana necessitates a better understanding of the relationship between marijuana use and roadway safety. In gaining this understanding, approaches to deterring, identifying, and prosecuting marijuana-impaired driving can begin. While increased access to marijuana has not directly impacted the trucking industry in terms of truck drivers testing positive for marijuana, the increased frequency of marijuana-positive drivers operating on the same roadways as trucks makes marijuana-impaired driving a critical safety issue for the trucking industry. You can access this and other ATRI Reports here. Regardless of where you stand on the issue, it is likely a comprehensive national approach to the issue will need to be developed in the near future. As the images below reveal, more and more states are adopting medical and/or recreational marijuana laws.
Are your customers still using AOBRDs? When the ELD rule took effect on December 18, 2017 it allowed for a two year period to achieve full compliance in relation to motor carriers that were using Automatic On Board Recording Devices (AOBRDs). Effective December 17, 2019 AOBRDs are no longer allowed and fleets must convert to ELDs. The FMCSA Administrator, Raymond Martinez and others have spent a good amount of effort to get the word out that the change is coming more quickly than some might think. As the infographic below indicates, the FMCSA certainly has the data to show HOS compliance has improved with the ELD Rollout. To assist with this transition, the FMCSA has put together an ELD Home Page where stake holders can gather and review information related to ELDs. You can find that page by clicking here.
The FMCSA’s Drug & Alcohol Clearinghouse is Coming!!! The FMCSA recently released online resources for CDL Holders, Employers, State Drivers Licensing Agencies, Medical Review Officers and Substance Abuse Professionals who will begin using the Clearinghouse in January of 2020. The website offers resources like a fact sheet, implementation timeline, FAQs and more. Among numerous other reasons, the D&A Clearinghouse rule was in-part, established to plug a loophole where a CDL Driver could apply for a CDL position at another company and fail the FMCSA mandated D&A Test, but the current employer would not be notified. The FMCSA Clearinghouse information can be accessed here.
GAO Report on Automated Trucking: Federal Agencies Should Take Additional Steps to Prepare for Potential Workforce Effects. The report noted two possible scenarios: 1. Long-haul highway driving will be fully automated, resulting in fewer trucking jobs and possibly lower wages, or 2. Self-driving trucks may still need operators, possibly changing the skillset and wages without significantly affecting the number of trucking jobs. The bottom line is that hundreds of thousands of jobs could be at risk. However, due to the driver shortage and the perceived safety advantage related to automated trucks, does it make sense and will it all be worth it in the long run? According to the report, most technology developers are developing trucks that can travel without drivers for just part of the route. This technology might be available in 5-10 years. Read the compete GAO report here.
Regulators act to update Entry-Level Driver Training (ELDT) regulations. The final rule is expected to reduce regulatory costs by $18,000,000 annually. FMCSA is amending the Entry-Level Driver Training (ELDT) regulations published on December 8, 2016. The ELDT rule requires the same level of theory training for individuals obtaining a CDL for the first time as for those who already hold a Class B CDL and are upgrading to a Class A CDL. FMCSA recognizes that because Class B CDL holders have prior training or experience, they should not be required to receive the same level of theory training as individuals who have never held a CDL. FMCSA has concluded this change will maintain the same level of safety established by the 2016 ELDT rule. More information about the final rule can be found here.
March is Women’s History Month. Two interesting posts by the FMCSA highlight the contribution women have made to the trucking industry going back to the early days. These women were true pioneers and should be applauded for their contribution to the industry.
Multi-vehicle accidents often results in disputes over which collision came first. The Appellate Division in New York upheld a trial court decision concluding that the doctrine of “the law of the case” applied when the trial court held that even where there was a fact issue regarding the order of the collision it would not preclude a later motion for summary judgment, that a rear-end collision between some vehicles could establish a prima facie case of negligence against second tractor trailer owner/operator; but whether there was a sudden and abrupt stop by first tractor trailer precluded summary judgment to first tractor trailer owner/operator. Of further note was the upholding of the trial court determination that the second tractor trailer owner/operator was entitled to adverse inference charge against first tractor trailer owner/operator for spoliation of evidence even if the destruction occurred through negligence, rather than willfulness, and even if the evidence was destroyed before the spoliator became a party, provided the party was on notice that the evidence might be needed for future litigation, in this case the event data recorder. Gitman v. Martinex, 2019 WL 960395
Experts – in or out? In the Western District of Arkansas, Ben Railsback, presented as an accident Reconstructionist, was not allowed to testify because he did not bring any helpfulness to the fact issues the jury needed to resolve. David Dorrity, presented as a trucking safety expert, was permitted to testify but only as to industry standards and could not comment on his opinions on the accident Jordan v. Ventura, 2019 WL 1089430. In a related decision the plaintiff’s doctor was permitted to testify about the cause of plaintiff’s injuries and the connection to the accident. 2019 WL 105363 but defendant’s expert testimony was partially limited. 2019 WL 1233613
When the defendant opposed a plaintiff’s motion for summary judgment with an expert report which was not previously disclosed the Eastern District of New York concluded that the plaintiff was entitled to sanctions which included precluding the defendant from using the report. The court also denied the motor carrier’s motion for summary judgment, concluding that there was a question of fact as to the negligence of the parties. Colon v. Linchip, 2019 WL 959663
A plaintiff’s negligence per se claim was fatally flawed and therefore dismissed by the Eastern District of Missouri. Reliance upon a statute which did not set forth a specific standard of care could not support a claim of negligence per se against a motor carrier accused of operating a vehicle in a negligent manner. Whittaker v. CRST Malone, Inc. 2019 WL 931966
The Eastern District of Michigan agreed that additional negligence claims should be dismissed when a motor carrier accepted vicarious liability for the actions of a truck driver. However the motor carrier was not successful in obtaining summary judgment on the primary negligence, with the court concluding that there were questions of fact which remained to be resolved. King-Moore v. Roadrunner Transportation, 2019 WL 1113143
Pay attention to this decision. The Western District in Oklahoma held that a plaintiff’s request for driver info was relevant and capable of leading to discoverable evidence. The motor carrier was required to produce the driver qualification, personnel, accident, disciplinary, and safety file of every driver that had five or more preventable motor vehicle determinations for a 3 year period. Annese v. U.S. Express, 2019 WL 1089098
An insurer was not permitted to reform an insurance contract because the insured had related companies which were leasing its vehicles. The District Court in New Mexico held that there was no basis for reforming the contract when the insurer did not fully investigate the relationship between the entities. We remind you how important it is to “know your insured” and click on all of those hyperlinks in the Cab Report™ that tell the story. National American Ins. Co. v. ABC Concrete Mfg., 2019 WL 956022
The Western District in Louisiana is leaning toward permitting the testimony of defendants’ DOT Compliance Expert, Lane VanIngen, to be presented to the jury. In virtually all areas the court held that his testimony would be beneficial to the jury and could be used to circumvent the plaintiff’s effort to use the reptilian theory to establish the unsafe operations of the motor and to recover for a personal injury accident. Franco v. Mabe Trucking, 2019 WL 1109879
What documents from prior shipments are discoverable when there is a personal injury action against a truck driver? The Western District in Kentucky concluded that the driver logs and driver routes would be discoverable as those documents could support a claim for negligent supervision and address the capability of the driver to operate the vehicle. Bills of lading were not, however, discoverable. Patterson v. Contract Freighters, Inc. 2019 WL 1223311
The Western District of Louisiana dismissed a claim for punitive damages given that there was no statutory basis for punitive damages or attorney fees under Louisiana law. Even though the defendant was domiciled in another state the court held that the defendant had sufficient contacts with the state to allow Louisiana to prohibit the claim. Stacks v. Harco Services, 2019 WL 1191059
A plaintiff’s efforts to amend its complaint to add the owner of a vehicle which was being operated under the authority of a defendant motor carrier failed in the Southern District of Indiana. The Court held that the plaintiff failed to sustain its burden to establish that the new defendant knew or should have known about the suit. The causes of action were time barred. Miller v. Panther II Transportation, 2019 WL 1171235.
The Southern District of Mississippi concluded that the temporal span of medical benefits coverage for an occupational accident insurance policy does not have to be completely coextensive with that available under the Workers’ Compensation Law of Mississippi. A truck driver may in fact have coverage under the occupational accident policy which does not have the same coverage required under a worker’s comp policy. Witte v. Zurich American Insurance Co. 2019 WL 01006241
Does Ohio’s workers compensation immunize a third party from a contribution claim when the third party is a complying employer? Although certain contributing employers are immune as against requests for contribution per Ohio’s workers’ compensation scheme, this immunity is contingent on the plaintiff’s employee’s actions being in the scope of employment at the time of the truck accident. In this case the Court held that there was a question of fact and denied the summary judgment request without prejudice to renew after discovery. Binger v. Alpont Transportation 2019 WL 1167836
A state law claim for bad faith for unfair claims handling was dismissed against a motor carrier in the District Court in New Mexico. The court held that such a claim was preempted by the Carmack Amendment. Security USA Services v. UPS, 2019 WL 1051017
The Court of Appeals in Texas denied a request for a writ of mandamus in which a truck broker sought to transfer a suit to the forum noted in its terms and conditions. The court held that the broker could not establish that the customer agreed to the terms and conditions when it entered into its contractual agreement with the broker. That does not bode well for any anticipated limitation of liability. In re Freightquote, 2019 WL 995791
The Southern District of California concluded that it would be appropriate to vacate a default judgment entered against a motor carrier when there was excusable error in answering the complaint and the defendant was able to support a defense that the damages were not fully documented. Pathway Innovations & Technology v. XPO Logistics, 2019 WL 1259165.
Plaintiff’s claims for breach of bailment and breach of contract for a cargo loss were determined to be subject to dismissal under the terms of the Carmack Amendment. Secura Insurance Co. v. Old Dominion Freight Line, Inc. 2019 WL 1114887
Pre and post judgment interest were at issue in a declaratory judgement arising from a cargo loss. The District Court in Minnesota held that a broker was entitled to recovery for the cargo claim, attorney’s fees and pre and post judgment interest. The court however reduced the interest rate for both. Sunteck Transport Company, LLC v. King’s Express, Inc. 2019 WL 1238833
Thanks for joining us,
Jean & Chad