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Bits & Pieces

October 2020

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Winter can wait…

As we enter November there’s a big day on the 3rd. Don’t forget to vote and no matter your leanings, we will all be friends when it’s all over. An even bigger day occurs on the 11th – Veterans Day. Make it a point to reach out to family, friends and coworkers and let them know you appreciate their service.

It’s hard to believe, but large portions of the country have already experienced winter weather in the form of freezing temperatures, ice, sleet and snow. There have already been some large crashes that may be keeping our claims folks busy as we acquaint ourselves once again with winter driving. Here’s to hoping for some warmer temperatures before the real winter weather sets in.

Stay safe and have a great month!

CAB Live Training Sessions

Our live training sessions continue to garner great interest from our users.  If you missed either of these webinars, they are available in the Tools menu under Webinars or by clicking here. This month we will present two new live training sessions:

Tuesday, November 10th @ 12p EST: Our CEO Jean Gardner will be presenting a new topic, CAB Claims Training. For those of you that have attended one of Jean’s sessions at a conference or webinar previously, you know you are in for a treat. The session will provide tips for identifying relevant information and how it can be used. Although this session will be geared towards Claims, there will be information that will apply to a number of responsibilities including, producers, loss control, underwriting and the like.

Tuesday, November 17th @ 12p EST: Chad Krueger will be providing additional insight during our focused training, BASICs Calculator Introduction. Chad will provide a brief overview of the BASICS Calculator and how it is used to create opportunities, understand motor carriers more effectively and identify potential diamonds in the rough. Don’t miss this very informative session!

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: When is a motor carrier required to update their MCS-150 and how can I use the CAB Report to determine this?

Did you know the FMCSA Requires Motor Carriers to update their registration information (MCS-150) every two years. Additionally, name, address and other changes should be updated in a timely manner. When a motor carrier is required to complete their biennial update is relatively easy to determine. It’s all based on the last two digits of their DOT Number. The list digit determines the month. Interestingly, no motor carrier is required to update in November or December.

If the next-to-last digit of its USDOT Number is odd, the motor carrier or intermodal equipment provider shall file its update in every odd-numbered calendar year. If the next-to-last digit of the USDOT Number is even, the motor carrier or intermodal equipment provider shall file its update in every even-numbered calendar year.

Therefore, if a motor carrier’s DOT number is the following 1234567, the motor carrier would need to file their biennial update by the last day of July of even years. Their next update would be required by July of 2022.

*Note: A motor carrier can update as many times as they want between the biennial updates. As noted above, if address changes, name changes, etc, an update should be completed. However, if a motor carrier expands, contracts, changes operations or the like, updates should be completed then as well. When it comes to BASIC Percentiles, unit count and miles traveled are used in the calculations for Unsafe Driving and Crash BASIC. So, it is important to keep them updated regularly.

When it comes to the MCS-150 or Biennial registration information on the CAB Report, focus on the General Tab at the bottom. There you will find Company Information (see below). The motor carrier below has a DOT number that ends in with XXXX36. Therefore the update is required to be filed by the end of May on odd years. We can see below that this motor carrier completed their update on time via the green circle. As you’ll note additional pertinent information is included in the Company Information section. At the very bottom, you will see 6-month snap shots of the power unit, driver and mileage counts. Since this motor carrier updated in May of 2019, you’ll note that those data points don’t change for the last 3 snapshots.

THIS MONTH WE REPORT:

CVSA Releases 2020 Brake Safety Week Results: During this year’s Brake Safety Week, 12% of the 43,565 commercial motor vehicles inspected were placed out of service for brake-related violations. Inspectors from Canada, Mexico and the U.S. removed 5,156 commercial motor vehicles from roadways due to brake violations during the week-long inspection and enforcement event, focused specifically on reducing brake-related crashes by conducting inspections and identifying and removing unsafe commercial motor vehicles from roadways. Eighty-eight percent of the commercial motor vehicles inspected did not have brake-related critical vehicle inspection item violations. For more information on 2020 Brake Safety Week results, click here.

American Transportation Research Institute releases 2020 Top 10 Trucking Industry Issues: For the fourth year in a row, the trucking industry’s driver shortage ranked No. 1 on the annual Top Industry Issues list from ATRI. This year, ATRI noted that fleets’ difficulty in hiring is being exacerbated by the COVID-19 pandemic, as the retirements of thousands of drivers, state motor vehicle departments’ inability to test and process new CDL applicants, and the market’s redistribution of freight are coalescing to further stress the pool of available drivers. In addition, the loss of tens of thousands of drivers who are listed in the new Drug and Alcohol Clearinghouse as being disqualified from driving because of substance abuse issues is taking a further toll on the industry.

Department of Labor Seeks to Clarify Employee/Independent Contractor Status: A notice of proposed rulemaking issued by the Department of Labor in late September would provide motor carriers with long-desired clarification on how to properly classify an employees vs. independent contractor, at least under the federal Fair Labor Standards Act. A considerable drawback, though, is that the DOL’s new test for determining a worker’s status would have negligible impact on state-level labor laws — with which motor carriers will still need to comply even after the Labor Department finalizes its definition. For more information on the proposed rulemaking, click here.

FMCSA Releases September 2020 Monthly Summary Report: An interesting point that is developing with the summary is that of the 40,433 Drug & Alcohol tests completed since the start of the program, 20,976 of the positives we’re during pre-employment screening. Random testing had the second highest positives at 14,340 followed by post accident at 1740. Positive drug tests account for 82% of the total violations reported. Of the 37,617 drivers with at least one violation, 26,590 have not started the Return to Duty Process and only 3461 are no longer in a prohibited status. For more information on the summary, click here.

Brake Light Recall Affects 128,269 Freightliner Trucks: Daimler Trucks North America has issued a major recall for a brake light defect that could increase the risk of a crash. The recall affects certain models of 2017-2021 Freightliner Cascadia P4 vehicles for a defect that could cause the brake light to remain illuminated after the brake pedal is released. According to recall documents, “if the brake lights remain illuminated, drivers may be unaware when the truck is actually slowing or stopping, increasing the risk of a crash.” A total of 128,269 vehicles are affected by the recall. The recall is expected to begin November 16, 2020. For more information on this recall, click here.

Three Months Left to Meet Drug & Alcohol Clearinghouse Annual Query Requirement: If an employer has not yet conducted queries in the Drug and Alcohol Clearinghouse on any CDL drivers they currently employ, time is running out. The deadline to meet the annual query requirement § 382.701, is January 5, 2021. This annual query requirement is tracked on a rolling 12-month basis. For instance, if an employer conducts a query of a CDL driver on October 9, 2020, the employer will not need to query that driver again until October 9, 2021. Employers must purchase a query plan to ensure they, and their designated consortia/third-party administrators (C/TPAs), can conduct queries on prospective and current drivers. Learn more about query plans. To learn more, click here to download the queries and consent requests factsheet.

CVSA Issues New Container Securement Inspection Bulletin: The new details accepted standards for securing roll-on/roll-off, hook-lift, and lugger boxes on CMVs. Both the U.S. and Canada have regulations for securing roll-on/roll-off and hook-lift containers on commercial trucks, but the rules lack important details. This has led to some confusion among motor carriers, drivers, and enforcement personnel alike. The new nine-page CVSA bulletin aims to reduce that confusion with examples and detailed instructions on how the containers should be secured, regardless if the truck has a built-in container securement system or not. The inspection bulletin can be reviewed here.

FMCSA Working to Expand the Under 21 Military CDL Program: The Federal Motor Carrier Safety Administration is proposing to expand the number of people who can participate in its pilot program for under-21 drivers with a military background. In a notice published in the Federal Register on Friday, Oct. 9, FMCSA plans to expand the number of military occupational specialties that are eligible for the pilot program from seven to sixteen. The pilot program, which allows some military veterans and reservists who are under 21 to operate a commercial motor vehicle in interstate commerce and was mandated by the FAST Act. For additional information on the expansion of the program, click here.

CASES

AUTO

What is the level of additional responsibility for the trucking company when a truck driver operating under the influence of drugs injures another. The Eastern District in Arkansas granted summary judgment to the motor carrier on claims for damages under the Crime Victim Act and punitive damages. Negligent hiring and supervision claims were also dismissed when the motor carrier conceded vicarious liability for the actions of the driver. Kieffer v. Marten Transport, Ltd., 2020 WL 5770841

Generally no defendant wants to be in Cook County, Illinois. The Supreme Court in Illinois agreed that Cook County, Ill was an improper venue for a truck accident which occurred in Ohio. The fact that the defendant had a remote employee who worked out of his house in Cook County Illinois was insufficient to support a claim that it was an “other office” for the purposes of Illinois venue statutes. The county of the office was not a relevant factor to the defendant’s engagement of the remote employee. Tabirta v. Cummings, 2020 IL 124798

A similar decision was reached in the Western District in Louisiana where the court agreed that claims for negligent hiring, training and supervision should be dismissed when the motor carrier agrees that the driver was acting within the scope of employment at the time of the accident. Allen v. Royal Trucking Company, 2020 WL 5985981

Other jurisdictions agree. In the Eastern District of Louisiana claims for negligent entrustment, negligent hiring, and negligent supervision were dismissed for the same reason. Marcello v. Holland, 2020 WL 5960684.

In the Western District in Oklahoma the court held that once the motor carrier stipulated to its agency relationship with the employee the claims of negligent hiring, supervision, retention and training were superfluous. Njuguna v. C.R. England 2020 WL 6151567

Over in the Western District in Texas the motor carrier was successful in obtaining dismissal of claims for negligent entrustment, negligent driver qualifications, negligent hiring, negligent training and supervision, negligent retention, negligent contracting, negligent maintenance, providing unsafe equipment, and gross negligence. While the causes of action could be valid in Texas, the complete lack of evidence to support such claims against the motor carrier convinced the court that the causes of action should be dismissed. Acuna v. Covenant Transport, Inc., 202 WL 6064419

Plaintiff was unable to support a claim for wantonness simply because the truck driver was operating the vehicle too fast. The Northern District of Alabama also concluded that there was insufficient evidence presented by the plaintiff to support claims for negligent and/or wanton entrustment, hiring, training or supervision. All such claims were dismissed. Parker v. Oliva, 2020 WL 6081963

The Northern District in Alabama also addressed claims against a truck driver who was stopped on the right of way and was struck by the plaintiff, resulting in numerous fatalities. Unfortunately for the motor carrier the court concluded that there remained questions of fact on most of the claims, including claims for wantonness and negligent maintenance. Martinson v. Crete Carrier Corp., 2020 WL 5994260

The Southern District of Ohio rejected the plaintiff’s position that violations of the Federal Motor Carrier Safety Regulations would give rise to a federal question and confer jurisdiction in the federal court. The court held that the regulations do not present a substantial question on federal law in a personal injury action. Dumas v. Albaier, 2020 WL 5943019

Plaintiff was unable to obtain partial summary judgment on the issue of whether or not the truck driver was the sole cause of a rear end collision when there were questions regarding the actions of the plaintiff in stopping in front of the driver. The Eastern District of Louisiana did grant the plaintiff partial summary judgment on the question of whether the driver was operating within the course and scope of his employment at the time of the loss. Dickerson v. Hapl, 2020 WL 5993148

Another truck broker preemption case, this month in the 9th Circuit. The court reversed the lower court decision granting judgment to the broker and concluded that negligence claims against brokers, to the extent that they arise out of motor vehicle accidents, have the requisite “connection with” motor vehicles to fall within the safety exception to preemptive effect of the FAAA. The safety exception provides that § 14501(c)(1) “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). This creates a significant exposure for brokers in this venue. Miller v. C.H Robinson Worldwide, Inc., 2020 WL 5637620

A trucking company, but not a driver, was successful in getting summary judgment on a punitive damages claim The District Court in New Mexico concluded that the plaintiff had failed to create a genuine issue of material fact as to the motor carrier’s culpability for punitive damages, concluding that holding otherwise would amount to imposing punitive damages on a corporate entity under a simple respondeat superior theory. Plaintiff sought the damages based upon the alleged cumulative effects of the conduct of corporate employees which plaintiff contended demonstrated a culpable mental state warranting punitive damages. Plaintiff simply had no evidence to support that allegation. Yazzie v. Fezatte. 2020 WL 5977929

Plaintiff was entitled to proceed against a facility owner and the owner of a trailer which was leased to his employer when he was injured after falling from the top of the tractor-trailer while attempting to roll out a tarp to cover the load The Appellate Division concluded that plaintiff was entitled to the protection afforded by Labor Law § 200 for his work because that section codifies the common-law duty of an owner to provide workers with a safe place to work, which was not limited to construction work. Landron v. Wil-Cor Realty Co, Inc. 2020 WL 5823212

The Western District in Oklahoma agreed that there was no basis for a claim for punitive damages against a motor carrier or a driver following an accident. The court concluded that the evidence presented indicated, at most, that the driver was negligent. “The mere happening of an accident as a result of inadvertence on the part of the [allegedly] responsible party is insufficient to constitute gross negligence.” Cardenas v. Schneider, 2020 WL 5947588

In a related decision, and for similar grounds, the court also granted summary judgement on punitive damages claims brought by co-plaintiffs, concluding again that plaintiffs had not presented clear and convincing evidence that the driver acted with reckless disregard as to the underlying accident. Cardenas v. Schneider, 2020 WL 5947582

Judgment in the amount of $1,243,413.19 was upheld against a trucking company in the Court of Appeals in Louisiana. The court rejected all of the motor carrier’s arguments on the admissibility of evidence, especially the admission of the testimony of the police officer who opined on plaintiff’s lack of fault, the position of plaintiff’s vehicle and the fact that the left lane was not clear when efforts were made to pass. Simpson v. UV Insurance Risk Retention Group, Inc., 2020 WL 5816002

We will have to follow a state court to see what happens in an action asserting that the defendants knew or should have known that all of the vehicles operated by the logging company had been put out of service by the FMCSA. The Northern District in Alabama concluded that it did not have jurisdiction over the suit when the plaintiff included the non-diverse manager who contracted with the carrier. Taylor v. Trevor Eaves Logging, LLC 2020 WL 5880189

Another motor carrier had its removal remanded back to state court when it was clear that the truck driver was non-diverse. The District Court in Connecticut was not happy about the fact that none of the defendants addressed the very real fact that everyone had to be from a different state than the plaintiff, not just the driver’s employer. Castillo v. Swift Transportation Services, LLC, 2020 WL 5879406

Apparently trying to remove without complete diversity was happening in many places this month. Over on the other coast, in the Northern District of California, the court remanded a case when it was clear that the truck driver was from the same state as the plaintiff, even if the motor carrier was not. The court also rejected the argument that there was a federal question to be considered simply because the carrier was using the federal highway system at the time of the accident. Christy v. Safeway, Inc., 2020 WL 5759790

While a motor carrier could not be sued for negligent hiring, training or supervision of the driver of a vehicle because it accepted vicarious liability for the driver, the Court of Appeals in Louisiana held that the plaintiff could assert those claims against the motor carrier when alleging fault in the training of those responsible for the maintenance of the truck when the drive shaft dropped and injured the plaintiff. Perro v. Alvardo, 2020 WL 5815947

The Court of Appeals in Georgia disagreed with a trial court’s ruling that an entity with operating authority should be considered the motor carrier for the purposes of vicarious liability when it was really acting at the shipper at the time of the accident. The court concluded that the defendant had simply hired a motor carrier to transport the shipment of oil and there was no evidence that it had leased the vehicle or driver or otherwise held itself out as the motor carrier. Stubbs Oil Co. v Price, 2020 WL 6128088

Despite delaying well past the time to amend a complaint, and past the statute of limitations, the Superior Court in Delaware concluded that a plaintiff could amend his complaint to add his wife’s loss of consortium claim. Because that claim arose “out of the conduct, transaction, or occurrence” set forth in Plaintiff’s original complaint, it was held by the court to relate back to the date on which Plaintiff filed his original complaint. The claim could proceed. Cook v. J and V Trucking, 2020 WL 5846630

CARGO
One household goods carrier was happy that it tried, over and over again, to have the plaintiff purchase insurance for her interstate move. The District Court in Utah concluded that the motor carrier met all of the requirements for a valid limitation of liability Cook v. New York Moving & Storage, Inc., 2020 WL 5803190

A truck broker was unsuccessful in seeking dismissal of breach of contract claims alleged against it for a cargo loss. The Eastern District in Pennsylvania held that the Carmack Amendment did not preempt breach of contract claims against truck brokers and that those claims are also not preempted by ICCCTA and FAAAA. The case would continue. Traction Tire, LLC v. Total Quality Logistics, 2020 WL 6044179

The Northern District in California rejected an equitable indemnity cross-claim which was based upon an underlying breach of contract claim in a suit for cargo damages. When the plaintiff’s recovery against the two defendants was based solely upon a breach of contact, those same defendants could not seek equitable contribution from the motor carrier for the damaged shipment of pharmaceuticals. Underwriters at Lloyd’s v. Abaxis, 2020 WL 5816888

Although many defendants in a suit for damages to cargo sought summary judgment, only one was given the green light by the Northern District of New York. The court held that the plaintiff could proceed with a suit for actual and consequential damages against the defendant hired to arrange for the machine to move overseas, be transported in the U.S. and installed at destination. Whether the defendant was liable as a carrier or a broker remained to be resolved. Thatdefendant was not allowed to proceed against the carrier that held the machine in storage for a year and then transported it as there was no evidence that it was liable for storage damage and the third party plaintiff was not a party to the transport bill of lading. It was, however, permitted to proceed against the party who damaged the cargo at destination. Vanguard Graphics v. Total Press Sales, 2020 WL 6059872

A household goods agent was successful in seeking dismissal of a complaint seeking compensation for cargo damage in the Western District in New York. The court agreed that an agent has no direct liability to the homeowner and that the claim could be presented only against the designated motor carrier. Francione v. United Van Lines, LLC., 2020 WL 6048195

A motor carrier was unsuccessful in obtaining dismissal of a suit seeking damages for a cargo loss on the basis that the court lacked jurisdiction over the case. The Central District in Illinois held that the motor carrier was doing business in the state and that the jurisdiction and venue were proper. While the plaintiff agreed to the dismissal of all causes of action but the claim under the Carmack Amendment, the motor carrier would have to litigate the case in the filed jurisdiction. Thompson Tractor Co, Inc. v Daily Express, 2020 WL 6121158

Anyone writing cargo insurance for Velox Group? The Eastern District in California entered a default judgment against the motor carrier for a cargo loss, including costs, expenses and attorney’s fees in the suit by the truck broker under the Carmack Amendment. Traffic Tech v. Velox Group, 2020 WL 6194616

WORKER’S COMPENSATION
The Court of Appeals in Oregon considered the question of whether a truck driver (claimant) who sustained injuries while driving a truck that he leased from a trucking company for the sole purpose of driving for that company is a “subject worker” such that the company must provide workers’ compensation insurance coverage for his injuries. The court concluded that he was a subject worker and entitled to worker’s compensation, concluding that “under the plain meaning of the statutory text, a driver can “furnish” equipment to a carrier by providing the equipment in service of the carrier—here, by producing the equipment to haul loads for the carrier. A driver can have a “leasehold interest” in the equipment if the driver has the right to possess and use it. However, if the leasehold interest conveys no right of possession, use, and control beyond allowing the driver to furnish, maintain, and operate the equipment in service of the carrier, the lease is no more than a paper trail to give form to what is in substance actually the use of company equipment by a subject employee. In the matter of the compensation of SAIF Corporation v. Carl S. Ward 307 Or.App. 337, 2020 WL 6154233

Thanks for joining us,

Jean & Chad

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