CAB Bits & Pieces October 2019

Good Day CAB Nation!

Welcome to fall! The northern portion of the country is certainly on a cooling trend and the beautiful fall colors are in full bloom. In some areas the snow has even made an early appearance. If you celebrate Halloween, make sure to stay safe and don’t eat too much candy!

CAB was fortunate to attend and present at a number of events the last couple months including MCIEF and IMUA. We hope we were able to connect. If not, please feel free to reach out. As you know we enjoy educating the industry on what we do – keep us in mind for future programs you may be running.

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Have a great month!

CAB’s Tips & Tricks: 

Did you know CAB’s website is fully customizable? You can customize your landing page, the sections of CAB’s Web Report and even the PDF CAB Report® that gets sent to you via email. Accessing your Profile is quick and easy. On the menu at the top of each CAB page, just click “My Account’ and then scroll down to ‘Profile’ and click. You’re now in ‘My Settings”

In the ‘Profile” page you can choose your ‘Default Page’ so when you open CAB you automatically go to Carrier Central (default), Dashboard, VITAL® or SALEs depending on what area of the site you use the most.

The ‘Profile’ is also where you can change your password. Within the ‘General Preferences’ you can elect to receive a PDF copy of the CAB Report® via email, automate schedule reports and even schedule report frequency.

‘CAB Report® Settings’ allows you to add or remove sections of the web and PDF CAB Report® as well.

Violation Alerts, Radius Buckets, Radius Alerts, Radius Circles and Hot Zones™ (States & Counties) can be customized as well in this area as well.

One of our goals is to provide our users the tools, resources and customization to help streamline workflow. By allowing each user to customize how CAB is viewed, we hope it helps contribute to the success of each user’s workday.

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:

ATRI Releases Critical Issues in the Trucking Industry Report-2019: In order, the top five issues are Driver Shortage, Hours of Service, Driver Compensation, Detention/Delay at Customer Facilities and Truck Parking. The list was compiled using more than 2000 survey responses from motor carriers and drivers. In addition to identifying the top issues, the report also identifies three proposed strategies for each of the issues. The annual report provides critical insight into the main issues affecting the trucking industry. To request the full report from ATRI, click here.

IRT Update: USDOT’s Office of the Inspector General (OIG) finds FMCSA’s Safety Measurement System Plan Lacks Details and Faces Hurdles. The OIG reported that while FMCSA’s corrective action plan addressed motor carrier safety interventions, it lacked implementation details for improving transparency and its assessment of carrier safety rankings. The report acknowledges that additional data points will not be collected by the FMCSA. The GOA acknowledged that the plan provides that datasets will be exhibited on a publicly available website but fails to identify how they will make them user-friendly, or outline costs and implementation steps—hindering FMCSA’s efforts to make its data, safety measures, and rankings more transparent. Finally, the complexity of the IRT model may make implementation and public outreach difficult.

What does this mean? Ultimately, the end of the report noted that IRT Modeling was to be completed by September, 30, 2019. After that review, but no later than September 30, 2020, the FMCSA will decide how to move forward. For more information on the Audit Report, click here.

NHTSA Releases 2018 Fatal Motor Vehicle Crashes: Overview. Overall, fatal motor vehicle crash fatalities decreased 2.4 percent from 2017, fatalities in crashes involving large trucks increased by 0.9 percent during the same time period. Table 2 shows fatalities in large truck crashes by person type (included in Table 2 are the old final and amended final 2016 numbers for persons killed in crashes involving large trucks). Among fatalities in crashes involving large trucks in 2018: Nonoccupants had 48 more fatalities, a 9.7-percent increase from 2017; large-truck occupant fatalities in single-vehicle crashes increased by 10, a 1.9-percent increase from 2017; Large-truck occupant fatalities in multiple-vehicle crashes decreased by 3, a 0.8-percent decrease from 2017; and Occupant fatalities in other vehicles decreased by 9, a 0.3-percent decrease from 2017. The full Traffic Safety Facts Research Note can be accessed here.

Limousine Safety has the Attention of Congress-Three Bills Introduced: Three federal bills were introduced to address safety regulations for stretch limousines following a number of deadly limo crashes in recent years, The Safety, Accountability, and Federal Enforcement of Limos Act (SAFE Limos Act), the Take Unsafe Limos Off the Road Act, and the End the Limo Loophole Act.

The SAFE Limos Act would require: Lap and shoulder belts for each seating position in new limousines; Safety requirements for seat strength and integrity for new vehicles; Retrofitting existing limousines with lap and shoulder belts and seat systems; Federal safety standards when altering vehicles for limousine use; Federal guidelines to assist limousine modifiers; Research about the impact of crashes and airbag system protections; Operators to disclose inspection results; and Installation of event data recorders to aid investigations.

The Take Unsafe Limos Off the Road Act, includes a grant program to support the impound or immobilize vehicles that don’t pass safety inspections.

The End The Limo Loophole Act would amend the definition of a commercial motor vehicle (CMV) to include vehicles that transport more than nine people including the driver. This change would ensure federal safety rules would apply to limousines. Currently, the rules state that a CMV is defined as a vehicle designed to transport more than 15 passengers, including the driver.

FDA Launches FDA-TRACK: Food Safety Dashboard to Track Food Safety Modernization Act. (FSMA): The Food Safety Dashboard is designed to track the impact of the seven foundational rules of the FSMA, measure their progress, and help the FDA continue to refine their implementation. The dashboard is available as part of the FDA-TRACK program, the FDA’s agency-wide performance management system. The FDA will track outcomes for three FSMA rules in the areas of inspections and recalls:

• “Current Good Manufacturing Practice, Hazard Analysis and Risk-Based Preventive Controls” rules for both human food and food for animals (preventive controls rules).
• Imported food safety, including data relevant to the “Foreign Supplier Verification Program” (FSVP) rule.

Over time, the Food Safety Dashboard will be populated with additional data to show more FSMA outcomes. Additional information on the Food Safety Dashboard can be found here.

FMCSA’s Hours of Service Notice of Proposed Rulemaking Comment Period Ends: With over 2700 comments posted, the agency has its work cut out for them to craft a solution that addresses the different segments of the trucking industry. The proposed changes address the following areas: Short Haul, Adverse Driving Conditions, 30 Minute Rest Break, Split-Sleeper Berth and Split-Duty. With the amount of comments posted, there is clearly diverse opinions when it comes to what stakeholders feel should be done. To review the proposal, click here.

CAB Calculates Updated BASIC Percentiles: For each BASIC category and power unit range, a) the percentage of carriers in different percentile ranges out of carriers with a percentile, and b) the percentage (out of all carriers) of carriers with a percentile, and of carriers without a percentile due to each of the following three reasons: 1) carrier had no relevant inspections, 2) carrier had no relevant violations, and 3) carrier had violations, but they were too few or occurred too long ago to get a percentile. For the Unsafe and Crash BASICs all carriers are considered to have had a relevant inspection. Percentiles 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. Snapshot date: 9/27/19.

Federal Motor Carrier Safety Administration (FMCSA) Opens Registration for CDL Drug & Alcohol Clearinghouse: Registration is open for the Commercial Driver’s License Drug and Alcohol Clearinghouse. Commercial driver’s license (CDL) holders, employers, medical review officers, and substance abuse professionals can register for an account at https://clearinghouse.fmcsa.dot.gov .

Registration is required to be able to access the clearinghouse once it is fully implemented on January 6, 2020. To access the clearinghouse, authorized users must register. These users include: Drivers who hold a commercial driver’s license (CDL) or Commercial learner’s permit (CLP) ; and Employers of CDL drivers. This further includes those who employ themselves as CDL drivers (owner-operators), typically a single-driver operation; Consortia/Third-Party Administrators (C/TPAs); Medical Review Officers (MROs); and Substance Abuse Professionals (SAPs). For more information on registering click here.

US DOT Releases FY2020 Top Management Challenges: In relation to the trucking industry and commercial motor vehicles, the key challenges are: Ensuring commercial drivers are qualified, prioritizing motor carriers for interventions and estimating the impact of driver detention. Chapter 6 of the report specifically addresses those key challenges and is titled: Enhancing Enforcement and Data Analysis to Reduce Commercial Vehicle-Related Fatalities. To review the complete report, click here.

Unified Carrier Registration (UCR) Data may have been Exposed due to Website Vulnerability Affecting 30,000 Registrants: The issue potentially exposed the registrants Tax ID number for a period of 28 days, from March 1st to March 28th. UCR System reported that Tax ID number was displayed in the status bar of the web browser of the receipt created upon completion of the registration process in the National Registration System. Immediately upon learning of the website vulnerability on March 28, the UCR eliminated the website vulnerability by completely removing the use of Tax ID numbers in the National Registration System. The organization released a statement reporting that there is no indication of a mass export of Tax ID numbers during the vulnerability period. A To review the complete statement, click here.

Audit of FMCSA’s Oversight of CDL Disqualifications to be Completed by US DOT: The DOT announced a self audit of how the FMCSA reviews state CDL programs to make sure they are compliant with the requirements for disqualifications of drivers. Earlier this year, a fatal crash involving a commercial driver led to an internal investigation by the Massachusetts Registry of Motor Vehicles (RMV) that found that RMV had not systematically processed out-of-State paper notifications of driver convictions in about 5 years. The investigation also identified a software flaw that hindered RMV’s ability to timely process out-of-State electronic notifications. Consequently, in summer 2019, RMV issued thousands of CDL suspensions, based on previously unprocessed out-of-State notifications. To review the complete DOT OIG Memo, click here.

 

CASES

Auto
A trucker was successful in obtaining partial judgment on the pleadings on the basis of failure to state a claim The District Court in New Mexico held that the plaintiff failed to allege any facts to support claims against the trucker for negligent supervising or monitoring, aiding and abetting, and statutory violations (negligence per se). Schmidt v. Jones, 2019 WL 4820136. In a related decision the court also dismissed a claim for punitive damages when the defendant showed there was no basis for such a claim and the plaintiff failed to even respond to that portion of the motion. 2019 WL 4854198

Plaintiffs could not survive a summary judgment motion in the District Court in Illinois because the evidence showed that icy conditions caused plaintiff’s car to spin out of control. Plaintiffs did not present any evidence that the truck driver drove negligently or with intentional or reckless disregard for others. Perez v. K&B Transportation, 2019 WL 4749989

While it appeared that an insurer had no coverage under a policy because of an excluded driver endorsement and argued that its obligation was limited to $100,000 under the Form F, the Court of Appeals in Georgia remanded the case back to the trial court because it failed to indicate its reason for the dismissal of the suit. Without a specific ruling by the court the Appellate Court could not issue a ruling. National Indemnity Co. v. Lariscy, 2019 WL 5417290.

The Court of Appeals in Indiana refused an insurer’s request to vacate a default judgment entered against a motor carrier. The court held that the insurer’s interest in the case was contingent on whether the MCS-90 endorsement applied. That interest did not warrant permitting the insurer to re-litigate insured’s liability in effort to limit potential future financial obligation. Prime Insurance Co. v. Wright, 2019 WL 4678394

Efforts to dismiss an action which asserted a negligence claim based, in part upon violation of safety regulations, was unsuccessful in the Southern District in Illinois. In addition, the court held the defendant’s argument that the plaintiff was pursuing a “reptile theory” was not sufficient to permit dismissal of the complaint. Diego Miller v. PAM Transport, 2019 WL 4962954

Can you get cell phone records? The District Court in Kansas would not permit a broad subpoena of the truck driver’s cell phone records, agreeing that a 3 hour window surrounding the accident was appropriate. Subpoenas to his prior employers for employment records were quashed. Schumacher v. Hardwood Specialty, 2019 WL 4689459

The Court of Appeals In Tennessee upheld the grant of summary judgment to a trucker and broker for damages sought by a forklift operator while operating his forklift within the confines of the trailer of a tractor trailer. The court held that the motor carrier proved that it had not hired the carrier and further agreed that the broker bore no liability for the loss. Hashi v. Parkway Xpress, LLC. 2019 WL 5431858

An injured party’s assertion that it was not a relevant party to the coverage action filed by an insurer defending a trucking company was not accepted by the Eastern District in Oklahoma. The court concluded that he was a proper party in light of the interest in whether there would be an insurance policy to recover from. Shelter Mutual Insurance Co. v. Fritz, 2019 WL 781867

A 35 million dollar punitive damages claim was upheld by the Appellate Court in Illinois. The court held there was enough evidence to establish that the trucking company consciously disregarded a known safety risk by employing driver who subsequently collided with motorist, supporting a punitive damages award in favor of motorist on claim for negligent hiring and retention; company hired driver despite a long history of driving violations involving substantially similar conduct to that at issue in motorist’s case, retained driver after he continued to violate company policies, and failed to monitor his motor vehicle record or notice that his license been suspended at time of accident. Denton v. Universal Am Cam,. 2019 WL 181525

The Southern District in Texas allowed a claim for gross negligence to proceed when there was evidence that the truck driver was using a flip phone while operating the vehicle also leaving open the question on whether the carrier was grossly negligent by authorizing or ratifying his actions. Plaintiff’s claims for negligent hiring, screening, supervision, and retention were dismissed. Denham v. Bark Rier Transit, Inc., 2019 WL 4887256

A default judgment for $533,227.64 was entered against a trucking company and the driver in the Middle District of Pennsylvania. The tractor trailer forced the plaintiffs’ vehicle off the road causing them to swerve between the truck and the median before striking an embankment, resulting in severe damage to the vehicle and injuries to the occupants, one of which was ejected. Thompson v. Chinea, 2019 WL 4917953

A pilot car company was successful in having a complaint dismissed against it. The District in New Mexico concluded that the plaintiff failed to state a cause of action against the pilot cargo for injuries when the plaintiff’s vehicle was struck by the tractor trailer it was piloting. The court did leave open the option that plaintiff could assert specific facts to support its negligence claim and amend the complaint. Gatewood v. Thompson, 2019 WL 4889161

A truck driver was permitted to pursue a claim against a loader when the driver was injured when he tried to unload the excess salt that the defendant had negligently loaded onto plaintiff’s truck. The Appellate Court in Illinois held that there was a duty of care owed to the driver. Burns v. Compass Minerals America, 2019 Il App. (1st) 180447-U

“Regardless of whether the Crash Indicator rating is a reliable predictor of future crashes, or the FMCSA decides to make changes to the rating in the future, the Crash Indicator remains one of the seven different safety parameters monitored by the FMCSA and reported to specific motor carriers. It may be relevant to Plaintiffs’ punitive damages claim because it speaks to Defendants’ knowledge regarding the risks of their operation to the public” So says the Western District in Kentucky in concluding that a motor carrier was required to produce SMS data. In addition the carrier was required to produce evidence of prior crashes, along with certain employee information. Burrell v. Duhon, 2019 WL4918771

The Court of Appeals in Iowa rejected a truck driver’s request for a new trial when he failed in his effort to seek damages for a load he claimed was improperly unloaded from his vehicle. The cargo struck the plaintiff. The court accepted the testimony of the defense expert who concluded that the driver failed to make sure that the load was properly loaded in the first place. Goebel v. Green Line Polymers, 2019 WL 4678169.

The business use exclusion in an auto policy was held applicable to a plaintiff’s PIP claims when there was other coverage to respond. The Court of Appeals in Michigan held that Michigan No-Fault law permitted such a conclusion. The policy exclusion provided that when the covered auto (i.e., semi-truck) is used for a lessee’s business and the lessee has sufficient liability and no-fault insurance for the auto, the auto insurer was not obligated to pay insurance benefits in the event of an accident that occurs during this use. Vantol v. Home Owners Insurance Co., 2019 WL 5418357

The Eastern District of Virginia held that a motor carrier’s insurance policy did not cover defendant’s claim for damage to its vehicles because the employee driving the vehicles was not a covered driver under the policy. The policy requirements that the driver have two years commercial vehicle experience and an approved MVR were held valid. Certain Underwriters at Lloyds v. Amlin Underwriting, 2019 WL 5459057

A jury verdict concluding that a truck driver was only 25% at fault, with the plaintiff 75% at fault was upheld by the Court of Appeals in Mississippi. The court held that the jury’s allocation of fault was not against overwhelming weight of evidence, and the damage award was not so low that it could only have been returned by jury influenced impermissibly by bias, prejudice, or passion. Anderson v. Salaam. 2019 WL 4632020

Did the truck accident cause the plaintiff’s injuries or were they pre-existing? The Eastern District in New York held that it was a question of fact when the doctors disagreed. Send it to the jury to decide! Marrero v. Clemmons, 2019 WL 4752371

You can’t get punitive damages just because you allege them. The Northern District in Oklahoma held that the record was devoid of facts to support a claim of punitive damages against a truck driver and his employer. There was no clear and convincing evidence that the driver acted with reckless disregard. Nikoghosyan v. AAA Cooper Transportation, Inc., 2019 WL 4992100

Cargo
Loads loaded hot – you have all seen those claims made. The Appellate Court in Illinois upheld the lower court finding that the cargo owner failed to show a prima facie case that a shipment of cheese was properly precooled before loading. The court also held that the broker owed no duty to the cargo owner to safeguard the shipment after rejection to permit salvage. At least the shipment went to a food bank (which you all know is near and dear to my heart!) DeliSource v. Nationwide Transportation, 2019 Il. App (2d) 180979

Is a claim that a motor carrier double brokered a load subject to the preemptive effect of the Carmack Amendment? The District Court in Oregon held that the broker’s breach of contract and state law indemnity claims were not alleged to arise out of the bill of lading or an assignment of rights but rather were based upon failing to transport goods using the agreed upon equipment. The breach would exist even if the goods were never damaged. As the broker was not “stepping into the shoes” of the shipper to sue the carrier, the claims were not preempted by the Carmack Amendment. Federal Insurance Co. v. Royal Auto Trans, Inc., 2019 WL 4920874

What happens when a broker agrees to transport goods by a certain date and fails to do so? In a world where a difference in delivery dates results in imposition of increased tariffs? The Southern District in Ohio held that the claims against the broker were not preempted by Carmack. Plaintiff’s allegations concern self-(not state-) imposed obligations which were outside the scope of Carmack. Heliene v. Total Quality Logistics, 2019 WL 4737753

While a household goods broker was successful in having both the Carmack Amendment claim, and the negligence claim, dismissed, it was not successful in getting a breach of contract claim dismissed. The Southern District in Texas held that plaintiffs identified specific breaches, including failure to counsel on which motor carrier to employ and how much to insure their property as the negligent services, breach of an indemnity agreement and breach of an oral settlement agreement. The case on that cause of action was permitted to proceed. Biesemeyer v. Plus Relocation Services, Inc., 2019 WL 4991532.

This happens so many times! The motor carrier was unsuccessful in asserting a nine month time limit when it could not prove that it gave the plaintiff the back side of the bill of lading where the terms were contained. The District Court in New Jersey did, however, dismiss the breach of contract claim and the consumer fraud claim as preempted. Kotick v. Atlas Van Lines, 2019 WL 5388163

Worker’s Compensation
Under Florida law, even if the claimant is acting in good faith, he can be held liable for costs if he fails to be successful in his worker’s compensation claim. The court was not pleased at the fact that it was mandatorily obligated to impose these fees and recommended that the Legislature correct the statute. Coto v. Univision, 2019 WL 4655984

When did the injury occur? When the plaintiff filed a worker’s compensation claim for a 2013 injury but failed to notify his employer of a 2014 injury the motor carrier was unable to claim that the injuries were truly caused by the second loss. The Supreme Court of Tennessee held that the driver sufficiently established injuries from the first event to support a worker’s compensation payment. Moser v. Hara, Inc., 2019 WL 4678324

Up the ladder employers are always being considered when there is an absence of worker’s compensation insurance. The Supreme Court in Kentucky held that it was appropriate to remand a case to an ALJ to examine the issue of whether a transportation broker that leased trucks and trailers are part of its business model qualified as an up the ladder employer for the purposes of worker’s compensation obligations. Tryon Trucking, Inc. v. Medlin, 2019 WL 4688811

Thanks for joining us,

Jean & Chad