The 2020 holidays are officially here!!!

Likely, by the time you read this, the unique, socially distanced U.S. Thanksgiving celebration will be over (Canada celebrated their Thanksgiving back on October 11th) and we can now look forward to the December Holidays. During this time we at CAB want to express our gratitude and appreciation for our Bits & Pieces readers and CAB users. We are truly thankful for the opportunity to serve the industry and will never take for granted the relationships we’ve developed over the years.

We at CAB wish everyone wellness, safe travels and Happy Holidays.

CAB Live Training Sessions

We hope you didn’t miss it, but Jean Gardner provided a tremendous training session titled CAB Claims Training in early November. It was very well attended and the feedback, not surprisingly since it was Jean, was very positive. For those of you who have had a chance to hear Jean speak, you knew you were in for a treat. I encourage you to access this session directly by clicking here. If you manage or work in the claims world, it’s worth the watch.

Our complete library of recorded webinars are available in the Tools menu under Webinars or by clicking here. This month we will present two new live training sessions:

Tuesday, December 8th @ 12p EST: Chad Krueger will present an updated session for CAB for Loss Control. This session will address recent enhancements to the CAB ecosystem and provide an updated overview of how to use CAB for Loss Control and Risk Improvement. Suggested attendees are those that focus on safety, loss control, risk management and the like. This session is also very popular for underwriters, producers, account executives and the like as well. Don’t miss out!

Tuesday, December 15th @ 12p EST: Mike Sevret, Sr. Account Manager, will lead a focused training specifically related to one of CAB’s best management features titled, Maximizing CAB List Features for Success. This session will detail CAB List features and how to use them to monitor your book of business, be they insureds or prospects. Mike will demonstrate how to set up triggered alerts, analyze the health of your book of business to recognize additional clarity and growth!

Our focused training will be shorter and last 30 minutes, as we know your time is important. 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

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: New menu shortcut to save you time!

As noted by the title above, this month’s tip focuses on a new shortcut that has been designed to save you time. If you ever find yourself switching between CAB Reports®, this shortcut will make your life a bit easier. Now, when you hover over Carrier Central at the top menu, you will notice additional options are available. In addition to New Search and My Workspace, you will now see the CAB Report® header and below that, the last 5 CAB Reports you’ve accessed. Additionally, when you hover over the name of the entity, additional options are available to allow you to shortcut to specific tabs of the CAB Report®. I encourage you to take advantage of this new shortcut to enhance your use and experience in CAB.

As with all of our tools & enhancements, we strive to present the information in a manner that will help provide clarity and ease of use. The team at CAB is continually striving to improve our tools and resources to create value and efficiency 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:

FMCSA Changes Definition of Agricultural Commodity: The new definitions will help entities understand whether federal HOS exemptions apply. Motor carriers transporting agricultural commodities need to clearly understand the terms within the definition in order to determine whether they qualify for HOS breaks. The term agricultural commodity had been broad in nature and created confusion on what cargo qualifies under the HOS rules. As a result, FMCSA revised its definitions in §395.2 to clarify several terms within the “agricultural commodity” definition.

• “Any agricultural commodity” was revised to mean horticultural products at risk of perishing, or degrading in quality, during transport by commercial motor vehicle, including plants, sod, flowers, shrubs, ornamentals, seedlings, live trees, and Christmas trees.
• “Livestock” now means livestock as defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 1988 [7 U.S.C. 1471], as amended, insects, and all other living animals cultivated, grown, or raised for commercial purposes, including aquatic animals.
• “Non-processed food” was added to the list of definitions. It means food commodities in a raw or natural state and not subjected to significant post-harvest changes to enhance shelf life, such as canning, jarring, freezing, or drying. The term includes fresh fruits and vegetables, and cereal and oilseed crops which have been minimally processed by cleaning, cooling, trimming, cutting, chopping, shucking, bagging, or packaging to facilitate transport by commercial motor vehicle.

For more information on this rule, click here.

Thanksgiving is a Prime Opportunity for Cargo Theft: Each holiday period, cargo thieves seek to exploit the abundance of loaded trailers and warehouses that will remain unattended for an extended period of time. In order to inform industry professionals of the highest theft risks, CargoNet reviewed trucking theft data from the Tuesday prior to Thanksgiving to the Monday following Thanksgiving for 2015 to 2019. 123 theft events in the days leading up to Thanksgiving or the days immediately after.

Supply chain professionals can mitigate theft by parking unattended equipment and cargo in high-security yards with tall fences, surveillance video, and high-visibility lighting. Consider investing in high-security locks and seals to prevent costly trailer burglaries and tracking devices to monitor unattended equipment.

The biggest noteworthy theft from previous Thanksgiving weeks: $527,863 theft of coffee and peanuts, yes, coffee and peanuts, from a warehouse in Union City, Georgia. For the complete CargoNet infographic, click here.

New York Trucking Company Owner Charged with Lying to the FMCSA: According to the complaint, the defendant owned and controlled a trucking business called Dallas Logistics. The company was put in the name of a nominee owner to conceal the fact that it was affiliated with another trucking company, Orange Transportation, that Kirik also controlled. Orange Transportation had received a negative rating from the Department of Transportation, and that negative rating would have been applied to Dallas Logistics had the true relationship between the two entities been disclosed to the Federal Motor Carrier Safety Administration. In order to prevent the government from learning that the two entities were related and affiliated, Kirik directed his employees to create and present false documents and representations to the Federal Motor Carrier Safety Administration. The charges carry a maximum penalty of five years in prison and a $250,000 fine.

***It is important to note that CAB’s Chameleon Carrier identifier highlights this relationship through alerts in Carrier Central and the Chameleon Carrier Report (see below). When Dallas Logistics is searched, it has a Chameleon Carrier match with Mains Street Logistics, which has as additional 5 Chameleon Carrier matches. We encourage you to use the Carrier Central Alerts to identify interrelationships between motor carriers. For more information on this case, click here.

American Transportation Research Institute (ATRI) Releases Study, An Analysis of the Operational Costs of Trucking :2020 Update: Lessening freight demand reduced costs to operate a truck in 2019, according to ATRI. The average marginal cost per mile incurred by motor carriers in 2019 decreased by 9.3% to $1.65. But that was still 6 cents per mile higher than during the last freight softening in 2016. In 2019, trucking costs contracted from $1.821 to $1.652. The cost per hour fell to $65.11 from $71.78 in last year’s report. The economic softening, combined with lower fuel prices and other factors, decreased the marginal cost of trucking. As noted by the table below, all marginal costs reduced between 2018 and 2019, except tolls. To review the complete report, click here.

COVID Related CDL Waivers Likely Won’t be Extended. The grace periods for expired CDLs and related credentials, extended repeatedly during the COVID-19 pandemic, are coming to an end, said a Federal Motor Carrier Safety Administration official. The update was provided mid-November by Joe DeLorenzo, director of FMCSA‘s Office of Enforcement & Compliance, during a virtual User Summit. He noted for drivers that the intention when it comes to expired CDLs, medical certification renewals, hazmat endorsements and more is to get back on schedule with the sunset of the most recently issued waiver. That one extended everything out through the end of the year after a series of one-month extensions.

CDC Updates COVID Guidelines for Truckers as Pandemic Worsens: In short the CDC states: As a long-haul truck driver, you spend many hours alone in the cab of your truck. However, there are times when you will be at increased risk of exposure to COVID-19. For long-haul truck drivers, potential sources of exposure include having close contact with truck stop attendants, store workers, dock workers, other truck drivers, or others with COVID-19, and touching your nose, mouth, or eyes after contacting surfaces touched or handled by a person with COVID-19. Additional information for Long Haul Truckers can be found here. If you have not already, I encourage you to share this updated information with the trucking organizations you work with.

ISS (Inspection Selection System) CAB Values Snapshot as of November 11, 2020: Have you ever wondered what the overall motor carrier population looks like in relation to the ISS-CAB Scores. Well, wonder no more. Below is a brief statistical summary for the active motor carriers operating today. 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. ISS scores are as of the snapshot date listed at the top of the section. 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.

Final Notice: Owner Operators and the Drug & Alcohol Clearinghouse: The FMCSA wants you to know the deadline for owner-operators operating under their own authority to run their first query with FMCSA’s Drug & Alcohol Clearinghouse is January 5. As a self-employed CDL driver and operating under your own USDOT Number each of them will need to register as an employer to conduct required annual queries in the Clearinghouse. For complete information on Owner Operator responsibilities with the D&A Clearinghouse, click here. If you work with Owner Operators, help spread to word to ensure they are taking the appropriate steps to stay in good standing with the D&A Clearinghouse.

CASES

AUTO

Here is a series of opinions in one case:

It is not easy to convince a court that a shipper is liable for a truck accident involving the trucking company engaged to transport the shipper’s goods. The Western District of Missouri dismissed all claims against the shipper when the plaintiff could not assert any facts to support a claim that the shipper controlled the actions of the driver. Monroe v. Freight All Kinds, 2020 WL 6588999.

The motor carrier who subbed or brokered out part of the transportation was not as successful. While the court agreed that a claim of negligence per se was not supported, it did conclude that claims of vicarious liability and Negligent hiring/Training/Supervision/Entrustment could be asserted against the motor carrier. 2020 WL 6588353.

The downstream entity who hired the driver was also unsuccessful in obtaining dismissal of anything other than the claim for negligence per se. There were just too many questions as to whether this entity exercised control over the driver. 2020 WL 6588354

The court also considered the admissibility of the plaintiff’s expert, concluding that Christina Kelly was qualified to opine on whether the truck driver should have seen and avoided the plaintiff and the standards that the motor carrier was to have met. 2020 WL 6588352

The court also considered whether related entities would remain as defendants in this suit. The answer was yes. When the two companies had the same owners, all employees were employed by one company, they were both located in the same headquarters and even the corporate representative was unclear as to who was the motor carrier, the causes of action against each would continue, other than claims for negligence per se. 2020 WL 6588958 and 2020 WL 6589000

The imposition of case-terminating sanctions on a trucking company for spoliation of evidence was overturned by the Supreme Court of Nevada. The court held that the district court’s sanction order was predicated on its finding that the motor carrier had a pre-litigation duty to preserve discarded parts of the defective vehicle, or at least, to take pictures of them before throwing them away. The motor carrier conceded that it knew litigation was pending or reasonably foreseeable when it discarded the parts, but denied that it knew or should have known the discarded parts were relevant. MDB Trucking v. Versa Products Company, 2020 WL 6530853

Claims for negligent hiring, training entrustment, retention, and contracting, as well as claims for violations of federal safety regulations and punitive damages were dismissed by the Western District in Kentucky. The court held that the plaintiff failed to allege any specific facts to support the general allegations made by the plaintiff. The court did grant the plaintiff the ability to amend the complaint if she could support the allegations with actual facts. Seemann v. Copeland, 2020 WL 6434852

Biomechanical engineering expert, Joseph Cormier, Ph.D was permitted by the Eastern District of Louisiana to testify regarding his crush analysis for a rear end collision between two truck drivers. He was not permitted, however, to opine on medical causation. Williby v National Casualty Company, 2020 WL 655940

It was too premature for the court to agree to dismiss a punitive damage claim against a motor carrier and its driver. The Superior Court in Delaware determined that the operator’s driving record revealed a history of driving violations, collisions, and hours of service violations from which a jury reasonably could infer he exhibited a pattern of inattentive driving and disobedience of safety standards, subjecting the driver and his employer to punitive damages. Tighe v. Castillo, 2020 WL 6624977

Punitive damages against the trucking company would not be an option for rail passengers which were injured when the train they were in hit a truck stuck on the tracks. The District Court in New Jersey held that while the motor carrier could bear corporate liability for the loss, there was no evidence that any of the actions of the motor carrier or the driver were malicious. Jarka v. Holland, 2020 WL 6707955

A motor carrier was successful in obtaining summary judgment in a suit seeking damages for an accident when the carrier’s tire blew and struck the plaintiff. The Middle District in Tennessee held that there was no question of fact remaining to be resolved. There simply was no evidence that the carrier had not properly maintained the equipment or that the driver was not operating the vehicle properly. Harden v. Stangle, 2020 WL 6685525

Over in New Jersey the court held that the plaintiff had not fraudulently sued the driver of a truck in order to defeat diversity. The trucking company tried to argue that since it was liable for the actions of the driver there was no need to have the driver in the suit. The court disagreed, sending the case back to the state court. Bae v. Virginia Transportation Corp., 2030 WL 6268675

The driver of a truck had his third party complaint dismissed against the employer of the second truck involved in the loss. The Southern District in Illinois held that the driver had failed to allege any facts to support bald allegations that the third party defendant breached a duty to maintain the trailer. He was, however, given the opportunity to amend the third party complaint. Dowdy v. Suliman, 2020 WL 6363697
Direct claims will not be permitted against the motor carrier when vicarious liability is accepted. The Eastern District of Louisiana dismissed the direct claims. Meyer v. Jencks, 2020 WL 6385808

According to the Eastern District of Missouri, claims of negligent brokering and vicarious liability against a trucker broker were not preempted by Federal Aviation Administration Authorization Act of 1994 (FAAAA). Plaintiff alleged enough facts to create a potential that the broker controlled the operations of the carrier. Mendoza v. BSB Transport, 2020 WL 6270743

The supplier of cargo was subject to jurisdiction in the state of delivery when the driver was injured after the product was delivered. The Western District of Louisiana held that when the defendant had an agreement to procure and deliver the cargo to Louisiana, albeit through a carrier, and it still owned the cargo while in transit it availed itself of the benefit of the state’s laws and therefore could be subject to suit. Jackson v. Lotte Chemical Louisiana, LLC., 2020 WL 6220160

The District Court in New Mexico agreed that the occurrence of a generic vehicle accident was not, standing alone, evidence of an employer-carrier’s negligence in training, supervising, hiring or entrusting its drivers. The court agreed that those claims should be dismissed against the motor carrier. Luman v Balbach Transport, Inc. 2020 WL 6392765

You cannot get a default judgment against a motor carrier when you have not alleged sufficient facts to support a claim that the motor carrier was liable for the actions of the driver. Where the plaintiff did not sufficiently allege facts to support a claim that the driver was operating within the scope of his employment at the time of the accident the default judgment was entered only against the driver. Karp v. Jenkins, 2020 WL 6504639

CARGO

When the motor carrier cannot defeat the plaintiff’s prima facie case for damages when a shipment of pet food was destroyed in a one vehicle accident, the plaintiff gets summary judgment. The Middle District of Pennsylvania held that the plaintiff was entitled to its selling price as it clearly did not collect the money it would have received if the shipment was delivered to its customer. Pets Global, Inc. v. M2 Logistics, Inc. 2020 WL 6381453

The Northern District in Illinois gave a big boost to a trucking company who destroyed a shipment of pharma during the last leg of an international shipment. The international bill of lading contained a one year suit clause which was held applicable to the motor carrier. The limitation was held applicable even with arguments based upon unreasonable deviation and gross negligence. Elco Insurance Co. v. Spirit Trucking Co., 2020 WL 6343135

Carmack preemption! The Western District in North Carolina concluded that the Carmack Amendment was the exclusive remedy for claims against an interstate motor carrier. Despite efforts to argue that a limitation of liability was not valid when the motor carrier was negligent, the court enforced the .60 cent per point limitation of liability. German v Bekins Van Lines, Inc. 2020 WL 6263169

A defendant’s attempt to remove a case eight months after suit was filed on the theory that the plaintiff was now asserting a claim under the Carmack Amendment failed in the Northern District of Texas. Defendant attempted to argue that plaintiff’s discovery response showed he was asserting new state law claims, such as a DTPA claim, that were preempted by the Carmack Amendment in his suit for damages arising from the wrongfully withholding of a shipment of vehicles. The court held that plaintiff had not amended his complaint to assert anything new and the time to remove had long expired. Egbuna v. Air Cargo Transport Services, Inc., 2020 WL 6468162.

The Middle District in Georgia held that plaintiff had properly served the motor carrier in her suit for damages to a shipment of household goods. The court agreed that the default judgment was not void and further agreed that the plaintiff was entitled to recover attorney’s fees under the statute which provided those fees in suits for damages to household goods. Barnes v. Guaranteed Price Movers, Inc. 2020 WL 6384409

When a household goods mover wrongfully withholds goods due to a dispute over billing, it runs the risk when the customer buys replacement goods. The Southern District in California held that the motor carrier was liable for damages when the plaintiff bought a TV and a bed after the goods were held for an extended period of time, even though plaintiff eventually got them back. Inigo v Express Movers, Inc. 2020 WL 6802309

The District Court in Arizona concluded that the plaintiff had established a prima facie claim for recovery against the motor carrier for damage to a printer in transit. The court concluded that the motor carrier was unable to establish a defense of improper packing, which also led to the dismissal of the negligence claim against the company which packed the printer. J&N Agency v. National Superior Express Limited, 2020 WL 6585542

Sometimes technical issues can tie up recovery for some time. The Southern District of Florida held that when a cargo owner received relief from the bankruptcy court to proceed against the motor carrier that relief did not automatically extend to the subrogating insurer. The plaintiff was allowed to proceed only on its claim in excess of the claim subrogated to its insurer. The plaintiff’s state law claims were also dismissed as the claim was preempted by the Carmack Amendment. IAG Engine Center Corp. v. Cagney Global Logistics, Inc. 2020 WL 6736293

WORKER’S COMPENSATION
The Supreme Judicial Court in Massachusetts held that there were sufficient significant contacts between Massachusetts and the claimant’s employment as truck driver for a company headquartered in Pennsylvania to have subject matter jurisdiction to adjudicate the claim arising out of an injury sustained in Maine. As the claimant was a Massachusetts resident licensed by Commonwealth to drive commercial vehicles, claimant found job from advertisement in local Massachusetts newspaper, claimant drove employer’s truck thousands of miles in Massachusetts during his employment and had contact with Massachusetts on more than half the days he worked, claimant returned to Massachusetts for medical care after his injury, and employer’s workers’ compensation insurer provided insurance to Massachusetts companies jurisdiction would exist. Claim of Mark Mendes 2020 WL 6326586

TOW COMPANIES

This is one to watch to see where it goes. In a suit by a tow operator for compensation for towing, storage and clean up costs, the Western District of Pennsylvania considered the counter-claims filed by the various parties with an interest in the equipment and cargo. It dismissed most of the causes of action but did allow a claim for declaratory judgment, and breach of the duty of good faith and fair dealing to be asserted against the tow company. Ferra Automotive Services, Inc. v. B&T Express, Inc., 2020 WL 65459994

In a related case the court dismissed the claims asserted against the trucker’s insurer, concluding that the tow company was not an insured or a third-party beneficiary of the policy. The tow company could not seek payment for its charges from the insurer. Ferra Automotive Services, Inc v. Certain Underwriters at Lloyds, 2020 WL 6546000

Thanks for joining us,

Jean & Chad