CAB Bits & Pieces November 2019

Good Day!

Happy Thanksgiving! Tis the season for giving thanks and we would like to relay our thanks to all of you for being a part of the CAB Nation. We appreciate your involvement in our organization as users, customers, prospective customers and the like. You are what helps keep CAB strong as we continue our mission of helping our users “Make Better Decisions”.

Travel safe, don’t eat too much turkey, enjoy your friends and family and we look forward to engaging with you again in December as we close out 2019.

Before we head into the news and the cases I wanted to take a moment to talk about food insecurity. (This is Jean BTW) Many of you who know me well know that I am actively involved in “shortening the line” on the food line and finding ways to feed people. After 35 years as a transportation attorney I have seen millions in food go to waste and have long pushed for the industry to expand its impact on food insecurity. I recently received a news article (thanks Steve Silverman – Berkshire Hathaway) about steps taken by one insurer, in Japan, to help make sure that minimally impacted food gets to those who need it. I wanted to share and give a shout out to Sompo Japan. The article can be viewed here at https://www.advisen.com/tools/fpnproc/fpns/articles_new_1/P/352746380.html?rid=352746380&list_id=1. Just a reminder to think outside the box when dealing with these issues. There is a lot that we can do in this field and I encourage you all, especially at this time of year, to remember that there are many who need our help. Thanks for listening. And now on to the news.

Follow us at: CAB LinkedIn Page CAB Facebook Page

Have a great month!

CAB’s Tips & Tricks:

This month’s enhancement is focused on Carrier Health, which is accessible via CAB List. (To learn more about CAB List, visit our Tools Menu>Webinars to watch “CAB List Training”.) When Carrier Health is run, you are provided with a complete Carrier Health for your Groups via Alerts, Violation Heat Map, BASICs Alerts, Violations (24 Months), BASICs History, ISS History and BASICs Statistics. Specifically, relating to the Violations section, you are now able to choose (green arrows) to have the data presented via Pie Graphs in addition to the previous Tables.

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 customer driven. Our goal is to help you Make Better Decisions!

This month we report:

Cargo Theft and Loss Values Rise in the Third Quarter: A total of 165 cargo thefts were reported, with an average loss value of $155,709, according to the latest quarterly report published by SensiGuard. That represents a 13% volume increase and a 31% value increase compared to Q2. There was also a 3% increase in volume but an 8% decrease in loss values compared to the same quarter last year. Most frequently stolen, with 21% of the total thefts, was electronics loads. 35% of those thefts were identified as televisions and displays. The second most stolen product type was “home and garden,” with 19% of total thefts. One out of four stolen loads were reportedly appliances. While usually the most common reported theft, “food and drinks” accounted for 14% of reported thefts, making those loads the third most stolen product type, according to SensiGuard. California reported the most cargo thefts, accounting for 26% of all theft incidents. Texas, Georgia, Florida followed, with a three-way tie for fifth most incidents between the states of New Jersey, Illinois and Tennessee. The report notes that 38% of all electronics thefts were reported in California. SensiGuard attributes the increase in theft volumes in The Golden State to a glut of containerized freight in southern California as companies rush to get shipments in from China before more tariffs take effect.

13.5% of Commercial Motor Vehicles Inspected Placed Out of Service Due to Brake Related Violations: The Commercial Vehicle Safety Alliance (CVSA) was held September 15-21, 2019. During that time 4,262 vehicles were placed Out of Service due to critical brake-related violations that were identified during the roadside inspection. As a part of this year’s brake safety week, inspectors also collected and reported on data relating to brake hoses/tubing.

• 2,567 units had chafed rubber hose violations.
• 1,347 units had chafed thermoplastic hose violations.
• 2,704 violations of § 393.45 of the Federal Motor Carrier Safety Regulations (FMCSRs) and Canadian equivalent violations included chafed rubber hoses.
• There were 1,683 violations of § 393.45 of the FMCSRs and Canadian equivalent violations that included kinked thermoplastic hoses.

Sixty jurisdictions in Canada and the U.S. participated in this year’s Brake Safety Week. In the U.S., 49 jurisdictions conducted 31,864 roadside inspections and placed 4,344 (13.6%) commercial motor vehicles out of service due to brake-related violations. In Canada, 11 jurisdictions conducted 2,456 roadside inspections and 282 (11.5%) commercial motor vehicles were placed out of service for brake-related violations. For the complete press release, click here.

CAB-Inspection Selection System (ISS) Value Summary Updated as of November 5, 2019: Description: The first table shows, for each power unit range; the number of carriers with “safety” scores in the green, yellow, and red ranges, and the total number of carriers with a “safety” score or an “insufficient data” score. The second table shows the data as percentages, out of carriers with “safety” scores or out of all carriers as appropriate. 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.

Operational Costs of Trucking Continues to Rise, Average Hourly Cost is almost $72: The American Transportation Research Institute (ATRI) report, “An Analysis of the Operational Cost of Trucking” was published on Nov. 4, 2019. The average marginal cost per mile incurred by motor carriers rose to $1.82, a 7.7% increase from 2017’s cost of $1.69. By costs per hour, carriers expenses were $71.78, up from $66.65 in 2017. Costs are broken into two categories: vehicle- and driver. Vehicle-based costs include fuel, truck lease or purchase payments, repair and maintenance, insurance premiums, licenses, and tolls. Driver-based costs include wages and benefits. Costs went up in every category except tires, and fuel costs saw the largest increase at 17.7%. Not far behind fuel cost increases, were insurance costs at 12%. Driver wages and benefits continued to make up the largest portion of operating costs and 2018 was a year of substantial driver pay increases industry wide. You can request the report from ATRI by clicking here.

US DOT: Eliminating the Requirement to Submit Driver Vehicle Inspection Reports (DVIR) When No Defects are Found to Save $74 Million: The FMCSA is proposing to rescind 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. “Reducing regulatory burdens and saving commercial drivers valuable time is helpful to bolster the commercial motor vehicle industry, without compromising safety. This straightforward proposal is reflective of the agency and Department’s approach to reducing unneeded regulatory costs.” said FMCSA Deputy Administrator Jim Mullen. Current regulations require commercial bus drivers to submit DVIRs even if there are no vehicle defects to report. The proposed rule would eliminate the need for a driver to file, and a motor carrier to maintain, a no-defect DVIR. The agency estimates that passenger-carrying commercial motor vehicle drivers spend approximately 2.4 million hours each year completing no-defect DVIRs, and that the proposed rule would result in a cost savings of $74 million per year. For more information on this proposal, click here.

California Assembly Bill 5 or ‘Contractor Law’ Forces Fleets to Overhaul Operations in State: The genesis of the law, court case, Dynamex vs. Superior Court, could effectively end the Owner-Operator model in the state. In September 2019, the state’s lawmakers passed the bill that, in short, presses businesses to classify more workers as employees. The law has caused some large fleets to cut ties with their California based Owner-Operators, offering truckers the option to leave the state or sell their equipment and become company drivers. For more information on California’s Assembly Bill No. 5, click here.

Effective December 16, 2019 Fleets Must Convert to ELDs and are no Longer Allowed to use EOBRs: As noted in the graphic below, Phase 2 of the FMCSA’s implementation timeline comes to an end on December 16^th of 2019. Phase 1 started February 16^th, 2017 via awareness and training, and the phased-in compliance timeline began almost 2 years ago. Motor carriers using EOBRs should be well on their way to converting to ELDs or they risk violation of the rule after the full compliance date of December 16^th, 2019. The FMCSA has provided ample time for the adjustment period and a website is available to identify complaint ELD providers, learn about the rule, interactive training courses, technical specifications and the like. Click here to access the FMCSA’s ELD website.

WWLTV.com News Report Details how a Staged Accident Works: The video details a New Orleans investigative report into a crash, where at the scene, the truck driver is determined to be at fault. However, it turns out to be a scam for a staged side-swipe crash. The report details “How they Pull it Off” which includes 1) Packing a car full of people 2) Side swipe and 18-wheeler 3) Plant witnesses at the scene 4) File a lawsuit. This accident is different because the Federal Government investigated and filed an indictment for conspiracy and wire fraud against the perpetrators. View the complete video here.

2.8 million nonfatal workplace injuries and illnesses occurred in 2018, Transportation & Warehousing Numbers on the Rise: That number was unchanged from 2017. The incidence rate for total recordable cases in 2018 was also unchanged from the previous year, at 2.8 cases per 100 full-time equivalent workers. This was the first year since 2012 that the incidence rate for private industry has not decreased. However, Transportation & Warehousing nonfatal injuries and illnesses have steadily risen from 201,500 in 2014 to 221,400 in 2018, a 9% increase over that time.

FMCSA Provides Support Initiative for Under 21 Military CDL Pilot Program: Under the program, individuals under 21 that have a military driver’s license may qualify for an in-demand driving job. The FMCSA has set-up a Job Opportunities page that can be viewed here. The page lists trucking companies or businesses, with their mission statements, that are engaged in interstate commerce truck operations and approved to hire drivers for the Under 21 Military CDL Pilot Program.

Two Recalls affect 3600 Commercial Motor Vehicles: Volvo Trucks North America and Daimler Trucks North America are both issuing recalls having to do with truck steering which can cause drivers to lose control. Volvo is recalling 2,287 2020 trucks which have been equipped with HD94 Sheppard gear variants. According to the recall notice published by the NHTSA, the steering gear mounting fasteners “may be insufficiently tightened.” This could result in loss of control of the vehicle. Volvo will be notifying owners and dealers of the issue. Trucks will be inspected and gears will be replaced free of charge. The recall began on November 15th, 2019 Volvo Trucks’ number for this recall is RVXX1906.

Daimler Trucks North America (DTNA) is recalling some 1,331 2020 Western Star 4700 because the steering shaft “may have been improperly installed.” This could result in a loss of control of the vehicle. DNTA will also be notifying owners and dealers, inspecting trucks, and correcting the shaft installation free of charge. This recall is set to begin on December 23rd, 2019. DTNA’s number for this recall is FL-835.

CASES

Cargo
If the broker pays the claim and fails to take an assignment from the cargo owner it has no standing to pursue the motor carrier under the Carmack Amendment. More importantly, the District Court in New Jersey also held that the absence of a seal does not, in and of itself, establish adulteration of a product. Mecca & Sons Trucking Corp. v. J.B. Hunt Transport Services, 2019 WL 6167930

Is a broker’s contractual claim against a motor carrier preempted by Carmack? The Middle District in Florida held that the broker could not seek recovery under a contractual agreement for the cargo payment which it made to the shipper. The broker was, however, given the right to amend the complaint to seek indemnity for costs and fees. Scotlynn USA Division v. Titan Trans Corporation, 2019 WL 5530267

Limitations of liability will always be contentious issues. The 11th Circuit remanded back a case after the trial court rejected both the defense of non-liability and the assertion of a $100,000 limitation. The court held that the motor carrier was entitled to present evidence on both issues. Interestingly the court was willing to consider that an insured value on a rate confirmation could in fact be a limitation of liability. Atlantic Specialty Insurance Co. v. Digit Dirt Worx, 2019 WL 5704518

The amount that the plaintiff was invoiced for a shipment of lobsters was held to be the proper measure of damages under the Carmack Amendment, regardless of how much the shipper may have actually paid to the supplier. The District Court in Massachusetts held it was non-speculative evidence of the goods’ value on the open market at the time they were lost. The court also held that prejudgment interest was proper but that it should be based upon federal interest rates and not state law. Richwell Group v. Seneca Logistics Group, LLC, 2019 WL 6130711

Preemption continues to remain a solid defense. The District Court in New Hampshire ruled that a plaintiff could not assert a consumer fraud claim based upon allegations that the motor carrier invoiced him for a shipment never delivered. It was ultimately all a cargo claim and subject to the preemptive effect of the Carmack Amendment. Burrill v. XPO Logistics Freight, Inc. 2019 WL 6134391

I am going to mention this both in cargo and auto sections for those of you who only read one section. The Southern District of Florida held that plaintiff’s claim for personal injuries suffered when it opened a package when a lam was broken inside. The state law claim against the motor carrier for injuries arising from the packing and interstate transport of the lamp was preempted by the Carmack Amendment. Sanchez v. UPS, 2019 U.S. Dist. LEXIS 195140

A quick motion to dismiss on a household goods suit was only partially successful in the District Court in Maryland. The court held that it would dismiss a claim that the defendant bumped up the weight of the items for additional revenue, but refused to dismiss a claim for unlawful brokerage activities, fraud, Rico violations and state consumer fraud actions. Even though the Carmack Amendment governed the claim for damages against the motor carrier it was unclear to the court whether all of the defendants were entitled to that preemption defense. The court also refused to enforce a forum selection clause in the bill of lading. Ripley v. Long Distance Relocation Services, LLC. 2019 WL 5538343

The Carmack Amendment will not be applied to a claim allegedly stolen goods. Silvestri v. Bekins Van Lines, Inc. 2019 WL 5538205

Auto
Anything you say can and will be used against you in a court of law – it’s true. When a plaintiff made a written statement in a bankruptcy proceeding that he had no“[c]laims against third parties,” the Court of Appeals agreed with the trial court that the doctrine of judicial estoppel barred plaintiff’s civil action against a truck owner for injuries arising from a motor vehicle accident that occurred before the bankruptcy filing. Hernandez v. Hires, 2019 WL 6171074

An injured truck driver will be permitted to tell the jury about his loss of the American dream following a truck accident in which he was struck by another motor carrier. The court in the Middle District in Pennsylvania also addressed the testimony of the plaintiff’s doctor, granting some relief to the motor carrier defendant. Okanovic v. Hayes, 2019 WL 5692754.

The Court of Appeals in Michigan reversed a trial court’s denial of summary judgment to a defendant when the plaintiff’s tractor-trailer struck the rear end of defendant’s vehicle, resulting in a fatal injury. The court held that there was no admissible evidence that the defendant was at fault, never mind grossly negligent. Sakofske v. Gering, 2019 WL 5418327

A defense verdict was affirmed, and the request for a new trial denied, in the 3rd Circuit. Plaintiff’s vehicle collided with the defendant’s tractor trailer. The jury found that the truck driver was not negligent which also resulted in dismissal of the suit against the motor carrier. The court held it was not against the weight of evidence, acknowledging a 100 page decision from the trial judge which spelled out all of the reasons why the verdict was appropriate. Botey v. Green, 2019 WL 5578857

The Middle District of Pennsylvania held that a plaintiff could amend his complaint to allege punitive damages. The court held that plaintiffs’ proposed complaint which alleges that the driver drove a commercial truck at an unsafe speed on a dangerous road, followed the plaintiffs’ vehicle too closely, and was inattentive to traffic conditions around him could support such a claim. Buck v. Sekhon. 2019 U.S. Dist. LEXIS 191630

The Southern District in New York agreed that it had no jurisdiction over a trucking company for an accident which occurred in Pennsylvania. The court held that the designation of an agent for service of process under FMCSA rules could not provide the Court with general personal jurisdiction over the motor carrier. Carson v. Western Express, Inc. 2019 WL 6050730

An interesting argument made in the Eastern District of Arkansas to avoid remand to state court. While the plaintiff and the truck driver resided in the same state, which would defeat diversity the trucking company argued that as the plaintiff contended that it was vicariously liable, and it was diverse in location from the plaintiff that somehow changed the diversity requirements. It failed and back the case goes to state court. Stickford v. Marable Transps., Inc. 2019 U.S. Dist. LEXIS 198344

When a tow company allowed gravel to spread out over the roadside when it removed a tractor from a ditch, the Court of Appeals in Arkansas held that the tow company might bear the risk of accidents occurring as a result of the presence of the gravel. As the trial court was held to have incorrectly applied a statute to limit exposure to situations where unnatural materials were left on the road way, the court remanded the plaintiff’s case back to the trial court to allow the plaintiff to seek injuries from his motorcycle accident. McKim v. Sullivan, 2019 Ark. App. 485

The Eastern District in Missouri was unwilling to grant partial summary to a motor carrier in a personal injury action. Defendants argued that they were entitled to partial summary judgment on plaintiff’s claims based on a failure-to-yield theory because the relevant state statute provides that the driver of the second vehicle to enter an intersection owes the duty to yield right-of-way to the driver of the first vehicle. The court held that there were questions of fact as to who entered the intersection first. Felton v Safron Logistics2019 WL 5727592

Claims of negligent entrustment and punitive damages were permitted to proceed against a motor carrier in the Eastern District in Oklahoma. Whether the motor carrier knew or should have known that the driver was not safe to drive, was not competent or fit for the duties required of him as an employee, had a propensity for negligent driving, driving while distracted and/or was not competent to drive safely, and entrusted him with driving an unsafe vehicle were to be addressed by the jury. Deela v. Annett Holdings, 2019 WL 5580095

When a motor carrier concedes liability for the actions of the driver will additional causes of action stand against the motor carrier? The District Court in Colorado, following many other courts, held that claims for negligent hiring and entrustment would not stand when vicarious liability was admitted. Trujilllo v. Mays Trucking, 2019 WL 5684213

Same held true in the Eastern District of Louisiana, where the court also dismissed the independent causes of action against the motor carrier. Coffey v. Knight Refrigerated, LLC, 2019 WL 5684258

The same held true in the Eastern District of Missouri when the court dismissed extra claims against a motor carrier who conceded liability for the actions of the driver. The court did not, however, grant summary judgment on the punitive damages issues – letting it head to the jury. Mason v. C.R. England, 2019 WL 5394565

The Court of Appeals in Georgia granted judgment to an employer for injuries caused when the tire on a truck broke free and struck plaintiff’s vehicle. The court held that the driver had no knowledge of any unsafe condition that caused the tire of the truck he was driving between job sites to separate and therefore the employer could not be vicariously liable for the accident IN/EX Systems, Inc. v. Masud, 2019 WL 5588811

An insurer’s argument that the Georgia Direct Action statute, which permits a claim against a motor carrier’s insurer, was inapplicable failed in the Northern District of Georgia. The Court denied the defendants’ Motion to Dismiss, or in the Alternative, Motion for a Separate Trial. Mitchell v. Dixie Transport, 2019 WL 6137488

Although the reasons are not spelled out, the Northern District in Texas refused to grant judgment to a defendant for claims against the trucking company for gross negligence and negligent entrustment. Settlement with the driver and one motor carrier was not enough. It is unclear whether the remaining defendant is a motor carrier or a broker. Parra v. Allways Transport, 2019 WL 5457036

An insurer was successful in seeking to avoid allowing a plaintiff to amend his complaint to bring in non-diverse insurers of other parties who may have contributed to plaintiff’s emotional injuries. The 5th Circuit held the plaintiff was not entitled to bring in a liability insurer without a judgement against the insured and further held that as the plaintiff suffered only emotional injuries the suit would be futile. Petty v. Great West Insurance Co., 2019 WL 5681356

What happens when the driver gets rid of his cell phone after an accident? The District Court in New Mexico granted sanctions against the truck driver. Balancing the spoliation considerations, the court allowed plaintiffs to introduce evidence of purported willful spoliation of the cell phone and the personal cell phone records obtained from the provider. The court reserved a ruling for trial as to whether an adverse inference instruction was warranted. Schmidt v. Shifflett, 2019 WL 5550067

An insurer’s effort to obtain a declaration that it had no obligation under the MCS-90 to pay any judgment rendered against its insured was rejected by the 4th Court of Appeals. While the trial court granted judgment to the insurer the appellate court held just because a federal court could exercise jurisdiction under the Declaratory Judgment Act does not mean that it should. The court held that the trial court reached the merits despite a thin and ambiguous record. In doing so, the court created both a substantial question about whether Article III jurisdiction existed and a serious potential to interfere with ongoing state proceedings. Trustgard Insurance Company v. Collins, 2019 WL 5700355

A truck driver was granted summary judgment in the Northern District of Ohio when the court concluded that no reasonable jury could find he breached the limited duty he owed under Ohio law or that the accident would not have occurred but for his alleged breach when the accident occurred because plaintiff’s vehicle came over the median into defendant’s lane of traffic. Ahner v. Smith, 2019 WL 5684438

The Court of Appeal in Louisiana held that genuine issues of material fact existed as to whether restaurant owners had a duty to take action to remedy situation in which tractor trailer regularly parked on shoulder of highway during busy times at restaurant and whether situation contributed to motorist’s automobile accident. Sepulvado v. Farm Bureau Insurance Co., 2019 WL 5783422

When plaintiff’s expert could not support any conclusion that plaintiff was not afforded an opportunity to avoid hitting defendant’s truck, the expert Reconstructionist would not be permitted to testify. The Eastern District of Michigan held that his expert report listed conclusions without any causation analysis, and his deposition testimony revealed that he did not employ any analytical methodology, much less a reliable one. Fields v. Ashford, 2019 WL 5704216.

When an insurer pays no fault benefits to a plaintiff following a truck accident it is allowed to intervene in plaintiff’s suit against the trucking company seeking non-economic damages. Plaintiffs could not seek to abandon allegations related to economic damages in order to avoid having the insurer intervene. The Northern District in Ohio held that the insurer could intervene as of right. Miracle v. JPVS Import Export, 2019 WL 5729868

When the plaintiff’s estate filed for probate in Georgia it could not later argue that the decedent lived in a different state in order to defeat diversity. The Northern District in Mississippi rejected a request to remand the case back to state court. Pell v. Warden, 2019 WL 5692651

A trucking company and a trailer owner were successful in getting a number of causes of action dismissed in an action seeking damages for an accident which occurred when plaintiff’s vehicle struck and then went under the trailer. The Southern District in Mississippi held that there was no basis for a claim for punitive damages, or for additional damages when vicarious liability was admitted. Riggio v. Pruneda, 2019 WL 6053017

Worker’s Comp
A successor trucking company was held to be the employer of a truck driver originally employed by the prior employer. The surviving corporation’s workers’ compensation insurance policy covered claimant at time of his work-related injuries following statutory merger of claimant’s employer and surviving corporation, and thus claimant had to exhaust coverage provided by surviving corporation before claim would be covered by Insurance Guaranty Fund, which provided coverage following involuntary liquidation of employer’s workers’ compensation insurance carrier, although employer was not listed in policy’s multiple “Other Insureds Extension” pages; claimant was employee of surviving corporation before his workplace accident given that employer no longer legally existed after merger, and insurance policy’s named insured was surviving corporation. Illinois Insurance Guaranty Fund v. Priority Transportation, Inc., 2019 Il App (1st) 181454.

A truck driver was not acting in the course and scope of his employment when he was injured stepping out of his truck. The Court of Appeals in Illinois held that when the driver came back to his vehicle, a few hours after leaving, to get his personal belongings and his trip sheets he was no longer acting as an employee and was not entitled to worker’s compensation benefits. Transport America v. Illinois Workers Compensation Commission, 2019 IL App (4th) 180709WC-U

Physical Damage
Coverage was not afforded for a physical damage claim when the motor carrier failed to list the driver on the APD policy. The Eastern District of Virginia held that the insurer met its burden to show that defendant failed to satisfy two independent requirements for coverage of the driver The insurance policy criteria for driver coverage were clear and unambiguous and defendant did not produce any credible evidence either that it satisfied these criteria or that plaintiffs waived these criteria. Certain Underwriters at Lloyd’s v. Deol Transport, 2019 WL 5459057

Thanks for joining us,

Jean & Chad