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Bits & Pieces

Bits & Pieces – October 2021

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The chill is setting in and thoughts are shifting towards the holidays!

Big news!  We are adjusting our format for our November 16th live training session.  It will be a town hall format and you will have the opportunity to submit questions for our experts to answer.  As noted, this is a bit outside our comfort level, so your assistance will be greatly appreciated.  Below you will find a link to submit questions that we will pose to the experts for answering.  As with other web training sessions, there will also be an opportunity to ask questions during the event.   We are very excited and we hope you will help make it a success!  

Please click here to submit questions for the CAB Town Hall.

More big news, Jean and Shuie will be speaking at the CCJ Solutions Summit: The title of the summit is: Shifting the driver paradigm: Winning with equipment, technology, and culture.  Join them in person at the 2021 CCJ Solutions Summit, Nov. 30 – Dec. 2, in Chandler, Arizona. CCJ Summit assembles fleet executives, thought leaders, industry analysts, and leading suppliers to explore ways equipment, technology, and corporate culture can shift the driver paradigm and overcome your No. 1 challenge: Cultivating a qualified workforce.  For more information on the CCJ Solutions Summit, click here.

Enjoy November and we hope everyone has a great Thanksgiving!

CAB Live Training Sessions

Tuesday, November 9 @ 12p EST: Mike Sevret will present VITAL+, Going Deeper with VINs. Go beyond the CAB Report and know the full history with our Vehicle Inspection Tracker & Locator (VITAL) search engine. See historical data on VINs, license plates, or a specific DOT#. Every inspection, violation, & accident is at your fingertips!  Click here to register.

Tuesday, November 16th @ 12p EST: The CAB Team will present Central Analysis Bureau Town Hall 2021, Q&A with the CAB Experts.  Do you have a burning question you’ve been wanting to ask one of our CAB experts?  Now is your chance!  Click the link below to submit your question and our team of experts will answer the question live during this session.   Click here to register.

Bam!  Click it HERE to submit a question for the CAB Town Hall.

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

Additionally, you can explore all of our previously recorded live webinar sessions including the following topics of interest.  Below are our most recent available webinars.  Share with your colleagues or review them yourself!

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CAB’s Tips & Tricks: Dig into the BASICs data!

When reviewing the CSA/BASICs tab in the CAB Report® do you know how to determine if the violation listed was determined to be Out of Service, or not?  An Out-of-Service violation requires the vehicle to be off the road until the violation or violations have been resolved.  Additionally, Out-of-Service violations result in an additional violation weight of 2. As an example, the last violation at the bottom of the list below for 8/11/21, the Stop Lamp Violation has a BASIC weighting of 6, however, due to the vehicle also being placed Out-of-Service due to the violation, the weighting is raised by 2, for a total of 8.  Also note, there is a time weighting factor assessed.  The same violation is multiplied by 3, due to occurring in the last 6 months (7-12 months x 2 & 13-24 months x1).  More recent violations are weighted more heavily than older ones.  So the true weighing being applied to the Vehicle Maintenance BASIC is 24.  As you can see, it does not take much for Out-of-Service violations to add up.  *Out-of-Service violations are also denoted in CAB via a red font.

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THIS MONTH WE REPORT:

From Overdrive: FMCSA tells states to ban drivers with drug, alcohol strikes:  Truck drivers who have a positive drug or alcohol test and find themselves in the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse will begin having their licenses downgraded after a final rule from the agency takes effect. Under the new rule, which will be effective as of Nov. 8, 2021 – with a state compliance date of Nov. 18, 2024 – states will be barred from issuing, renewing, upgrading, or transferring a CDL or commercial learner’s permit for any driver prohibited from driving a commercial vehicle due to one or more drug or alcohol violations. Additionally, states will be required to remove the CLP or CDL privilege from the license of drivers subject to the CMV driving prohibition, resulting in a downgrade of the license until the driver completes return-to-duty (RTD) requirements. FMCSA said the rule will ensure that drivers with drug and alcohol violations don’t operate commercial vehicles until they complete their return-to-duty process.  To review the complete article, click here.

More Than 13,000 Vehicles Transporting Hazardous Materials/Dangerous Goods Were Inspected During CVSA’s Unannounced Five-Day Inspection Initiative: Commercial motor vehicle inspectors in Canada, Mexico, and the U.S. inspected 13,471 vehicles transporting hazardous materials/dangerous goods (HM/DG) as part of a focused HM/DG inspection and enforcement initiative by the Commercial Vehicle Safety Alliance (CVSA). During the 2021 HM/DG Road Blitz, June 21-25, inspectors compiled and submitted valuable HM/DG compliance data to the Alliance. In the U.S. and Canada, 10,905 commercial motor vehicles and 8,363 HM/DG packages were inspected over that five-day period. Inspectors identified 2,714 violations.  For more information, click here.

Driver shortage trucking’s top concern for fifth straight year: For the fifth year in a row, the driver shortage has topped the American Transportation Research Institute’s (ATRI) annual Top Industry Issues report, a survey of more than 2,500 carriers, commercial drivers, and other industry stakeholders. Unlike 2019 and 2020, where margins between the driver shortage and the No. 2 industry issues were much closer and the driver shortage earned just 28.6% and 26.4% of the total share of votes, respectively, the driver shortage totaled 47.4% of the total share of votes in the 2021 survey. “The contributors to this [driver] shortage are endless,” said Rebecca Brewster, ATRI president and COO during an educational session Sunday at the American Trucking Associations’ annual Management Conference and Exhibition in Nashville. “Growing freight demand, the shift to e-commerce that leads to more local jobs that is hurting the over-the-road driver recruiting, an aging workforce and we are not backfilling with younger individuals that we need to account for those driver retirements.” Brewster added the pandemic also has created a backlog in driver supply from training schools and state licensing agencies that were temporarily shut down.  For the complete article from CCJ, click here.

CVSA Releases 2021 Brake Safety Week Results: North American Commercial motor vehicle inspectors inspected 35,764 commercial motor vehicles during this year’s Brake Safety Week, a seven-day inspection and enforcement initiative aimed at inspecting commercial motor vehicles roadside and identifying and removing any commercial motor vehicles with dangerous brake-related issues from our roadways. Twelve percent of the vehicles inspected were placed out of service due to critical brake-related inspection item conditions.  Combined, for a North American total, 35,764 commercial motor vehicles were inspected, Aug. 22-28, for Brake Safety Week. Twelve percent of those vehicles were restricted from travel because inspectors found brake-related critical vehicle inspection item conditions and placed those vehicles out of service, using CVSA’s North American Standard Out-of-Service Criteria.  For more information on this topic, click here.

Administration’s vaccine mandate (OSHA’s Emergency Temporary Standard) up against ‘extremely difficult’ challenge, attorneys say: COVID-19 contact tracing could prove to be the downfall of President Joe Biden’s hotly contested vaccine mandate. Employers with 100 employees or more may soon be required to have their employees vaccinated against the highly contagious coronavirus or face costly fines. A provision for weekly testing in lieu of vaccination is expected to be added to the Occupational Safety and Health Act (OSHA) Emergency Temporary Standard (ETS), which awaits OSHA approval. The American Trucking Associations, one of several industry groups meeting with White House officials to caution against implementing the vaccine mandate for fear of further straining an already anemic labor supply, reported that the mandate will likely push out 37% of drivers at a time when they say 80,000 more are needed to help alleviate unprecedented kinks in America’s supply chain. Legal challenges are mounting against the president’s tough stance on COVID, including in Florida where Governor Rick DeSantis said recently that the state will challenge Biden’s mandate in court.  For more information from CCJ on this topic, click here.

Strong freight, rates environment expected to last through 2022: The current trucking environment is one of the best in history from a demand perspective, and that strong environment for rates is expected to continue.  ATBS President Todd Amen, in an Overdrive’s Partners in Business webinar Thursday (see link below), said all signs are pointing to the current cycle lasting through the end of 2022. “We’re already 18 months into this cycle, and by all accounts … a traditional trucking cycle will be somewhere between 12 to 24 months of good for the truckers and then it’ll be three to four years of bad,” he said. “So it’s like quick up, and a slow, gradual decrease when you think about rate and freight cycles. By all accounts, we’re already most of the way into a really good freight cycle, and it should turn.” However, “Most people are saying this could last all the way through 2022,” he added, “which would be amazing. It would be a 30 month-plus. almost-going-on-three-years positive freight cycle for truckers, which is incredible.”  To read the complete article from Overdrive, click here.

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FMCSA Deputy Administrator Meera Joshi Convenes Meetings in Midwest To Discuss Truck Driving and Supply Chain: Continuing the Biden Administration’s whole-of-government approach to addressing supply chain disruptions, Federal Motor Carrier Safety Administration (FMCSA) Deputy Administrator Meera Joshi met with multiple transportation organizations in the Midwest this week.  The meetings focused on strengthening commercial vehicle safety, bolstering truck driver availability, and improving rail-to-truck supply chain efficiencies. Truck driver retention and recruitment has been a focus of the White House Task Force on Supply Chain Disruptions.  The core reason for America’s truck driver capacity issue is the startlingly low retention of current drivers.  Among large truck companies, driver turnover rates between companies and out of the industry for long haul drivers are over 90% annually.  For the complete press release, click here.

CAB Calculates Total Carriers and Percentage of Carriers in Inspection Selection System (ISS) range:  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 most recent data. A carrier’s number of power units is from the most recent data we have for that carrier. Carriers with no or an unknown number of power units are not included.

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GPS leads driver to high-grade rail crossing, into path of train:  No matter what GPS says, tractor-trailer drivers should not risk trying to drive over a high-pitched railroad crossing and they should pay attention to any signs advising against same. That advice came from law enforcement and a veteran truck driver following a recent collision between a train and car hauler in Oklahoma which was captured on video (see link below) that has since gone viral. Two other trucks that became grounded on that same crossing about 80 miles north of Dallas the week of Oct. 11 were freed before a train approached. All three truck drivers apparently followed a GPS-initiated detour to avoid road construction in the area.  To review the complete article and watch the video, click here.

Auto

So who owes for the towing charges? The District Court in New Jersey held that the motor carrier, the shipper and the truck broker could owe the tow company for all of the charges, allowing claims for quantum meruit to proceed against them. The insurer for the trucker was also kept in the suit under the MCS-90 as its policy did not cover the vehicle. Superior Towing & Transport, LLC v. JB Hunt Transport, 2021 WL 4482824

Plaintiff’s efforts to defeat diversity in a truck accident by filing a claim against a non-diverse party for an accident which occurred years later failed in the Middle District of Florida. The court agreed that there was no reason for that second claim to proceed in the truck accident. Kuhn v. Apgar, 2021 WL 4772844

While Louisiana law would not allow a co-employee/passenger to sue an employee/truck driver because of worker’s compensation limitations, when the non diverse driver was a named party to the suit because the employment status was at issue, diversity jurisdiction over the case did not exist. The Eastern District of Louisiana sent the case back to state court to be litigated. Wilford v. Nationwide Mutual Insurance Co., 2021 WL 4810914

A motor carrier was successful in obtaining summary judgment in a suit seeking damages for a truck collision, The motor carrier showed that he suddenly encountered an unlit and practically immobile vehicle in the lane he was traveling on the interstate during dark conditions with heavy rain. Plaintiff could not show that there was any negligence on the part of the motor carrier. Cigainero v. Moore, 2021 WL 4955450

While the insurer clearly had a claim ripe for declaratory relief when it sought to determine if there was coverage for a motor carrier and its driver the Eastern District of Missouri declined to exercise its jurisdiction over the questions raised. The court determined that the parallel state court action should be resolved first as that would lay to rest many of the questions which would need resolution prior to determining whether the auto policy covered the defendant’s liability, if any, for the loss. Greenwich Insurance Co. v. Matt Murray Trucking, 2021 WL 4902326

When the plaintiff failed to allege any facts to support a claim of negligent entrustment against a trailer leasing company the complaint was subject to dismissal. The Southern District of Texas agreed with the leasing company and granted the unopposed motion to dismiss. Davenport v. Hensley, 2021 WL 4925383

Broker liability for a truck accident was again an issue, this time in the Southern District of West Virginia. After concluding that plaintiff had met the burden of showing personal jurisdiction over the broker, the court went on to deny the broker’s request to dismiss the claims for vicarious liability, and negligent selection of a carrier. The court concluded that the claims against the broker were not preempted by FAAA. Taylor v. Sethmar Transportation, 2021 WL 4751419

A truck driver parked his vehicle on the road in an unacceptable location in order to insure that he was first in line for unloading, and was struck by a plaintiff who did not see the vehicle in the sunlight. The truck driver was potentially liable for punitive damages. The Middle District in Georgia concluded that claims for punitive damages and bad faith would be presented to the jury to decide. It did dismiss plaintiff’s claims for lost profits because he was unable to operate a restaurant which had been unprofitable for a few years. Castleberry v. Thomas, 2021 WL 4765499

Where the plaintiff has not established a prima facie case for punitive damages the District Court in South Carolina held that the plaintiff was not entitled to get early discovery on the finances of the trucking company. The court also rejected the plaintiff’s request that defense counsel articulate the due diligence steps taken to determine whether there was any additional insurance coverage. Akehurst v. Buckwalter Trucking, LLC., 2021 WL 4891749

It is interesting that there are so many cases where truckers are sued for events in which they are claimed to have caused accidents that they were unaware of. The Northern District of Mississippi held that there were questions of fact as to whether the defendant forced the plaintiff to run off the road and have an accident and therefore summary judgement was inappropriate. Garth v. RAC Acceptance East, LLC., 2021 WL 4529690

The Eastern District in North Carolina agreed that a claim for punitive damages against a motor carrier should be dismissed. Under North Carolina law a demand for punitive damages must be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages must be alleged with particularity. Plaintiff failed to allege facts to support such a claim, which would have required allegations that the driver was intoxicated, or driving at excessive speeds; or engaged in a racing competition. MCNeil v. Glasco, 2021 WL 4944342

Claims for negligent hiring, training and leasing are permitted under Iowa law, even when vicarious liability is admitted. However, there must still be facts to prove the claims. The Northern District in Iowa rejected those claims against the trucking company and its affiliated leasing company, granting summary judgment to those defendants. There was no material fact which would lead to the conclusion that liability would exist. DeBower v. Spencer, 2021 WL 4887976

The Southern District in Florida agreed with the defendant that an insurer was not entitled to judgment on the question of its duty to defend under the policy or the MCS-90 Endorsement while the underlying action for damages for the truck accident was still being litigated. The case was stayed pending resolution of the suit. Trisura Specialty Insurance Co. v. Blue Horse Trucking Corporation, 2021 WL 4334764

The Eastern District in Kentucky was not inclined to grant summary judgment to a motor carrier on the theory that the accident was not foreseeable. The court held that the trucking company could have reasonably foreseen that the driver would lose consciousness due to his acute illness at the time of the accident and chronic fatigue, noting that the driver admitted he fell asleep in the moments following the accident. The court did agree, however, that the claim of negligence per se could not be established as the state’s statute did not extend to claims that federal safety regulations were violated. The plaintiff was also not permitted to proceed on claims of negligent hiring, retention, supervision or training when there was not enough evidence to support the claims. Short v. Marvin Keller Trucking, Inc., 2021 WL 4524170

Because the motor carrier may be liable for punitive damages, the carrier’s admission of vicarious liability did not necessarily require dismissal of direct negligence claims against the motor carrier. The Eastern District of Missouri allowed claims for negligent hiring/retention, negligent training and negligent supervision/retention to remain in the case. Sanford v. K&B Transportation, Inc. 2021 WL 4552206

The Northern District in Alabama agreed that a claim of wantonness was subject to dismissal. Even construing the facts in favor of the plaintiff, the court held that consciously deciding to switch from the right lane to the left lane to bypass slower traffic in the right lane was not enough to show that the driver did so “with a reckless or conscious disregard of the rights or safety of others.” He made an error in judgment; it was not enough to support additional damages. Coram v. Southwind Transportation. 2021 WL 4660455

Somewhat strange set of facts. The defendant admitted that the driver was negligent for not securing the cowling, i.e., the removable covering of the vehicle’s engine, which struck the plaintiff’s vehicle causing the accident, yet still sought to be dismissed on the theory that there was no collision with the vehicles, as alleged by plaintiff. The Southern District in Mississippi rejected that argument. Because plaintiff admitted that it was negligent for not securing the cowling the court granted partial summary judgment to plaintiff on liability. Taylor v. Wal-Mart Transportation, 2021 WL 4569344. In a related decision the defendant’s effort to defeat a plaintiff’s claim for money damages stemming from medical treatment on the basis that it was untimely failed. 2021 WL 4504691

The Court of Appeals in Texas reversed a bench trial ruling that the motor carrier and its driver was completely at fault for a multi-vehicle accident started with a collision by the truck. The Court of Appeals determined that the trial court improperly denied an earlier motion to change venue. Because the venue was not proper in the county of suit and would have been proper in Harris County, the county to which the defendants sought transfer, the case was reversed and remanded to be transferred to Harris County to be tried. UPS v. Norris, 2021 WL 4465998

The motor carrier and driver were successful in defeating plaintiff’s claims for personal injury damages as untimely in the Northern District of New York. While the accident was in New Jersey, the court held that the plaintiff was time barred under both states as she could not establish that she was a New York resident at the time of the loss. It is an interesting read as it further addressed whether there was a right to assert personal jurisdiction over the driver in New York based upon his business relationship with the motor carrier. Questions to be considered when there is a leasing relationship between the parties. Afanassieva v. Page, 2021 WL 4458686

Directed verdict in favor of the motor carrier upheld by the Court of Appeals in South Carolina! The court agreed that the plaintiff did not meet the burden of proof that the motor carrier was at fault or caused injury to the plaintiff. Bundy v. Jett, 2021 WL 4593413

An NTL policy exclusion was applicable when a covered auto was used to further the commercial interest of a lessee. The District Court in New Mexico granted the insurer’s request for summary judgment. The court determined that reading together the business auto policy and the business use exclusion contained within the endorsement, the only reasonable interpretation was that the endorsement excluded coverage from the insured business auto policy when a covered auto was being operated on behalf of a commercial lessee. Lopez v. Western Surplus Lines Agency, 2021 WL 4478023

Two insurers, both potentially provide coverage. When one insurer pays the claim can it seek monies back from the other? The Central District in California considered the motion to dismiss filed by the defendant insurer. The court agreed that the presence of an MCS-90 on the defendant’s policy could not give rise to an equitable subrogation claim by another insurer. Equitable subrogation remained a viable option however, as the plaintiff sufficiently showed that the defendant was aware of the claim and therefore could have participated in its resolution. Williamsburg National Insurance Co. v. New York Marine and General Insurance Co., 2021 WL 4458952

Cargo
While a truck broker was able to get all state law claims dismissed against it in a suit seeking recovery for a cargo loss, it was not successful in obtaining dismissal of the claim under the Carmack Amendment. There was still a reasonable basis to argue that the broker held itself out as a carrier. Federal Ins. Co. v. SF Express Corp., 2021 WL 4555040
A default judgment was entered against a logistics company in the Western District of Texas. The court held that the plaintiff was entitled to actual damages, costs, prejudgment and post judgment damages. Federated Mutual Ins. Co. v. XPO Logistics Freight, Inc. 2021 WL 4621965

An interstate shipment which is part of a continuous movement by air is not subject to the Carmack Amendment. The Southern District of New York dismissed the subrogation suit seeking cargo damages. The Court also held that inland transport, from New York to New Jersey was also within the commercial zone, further supporting a rejection of jurisdiction under the exemption for commercial zone transportation. Great American Insurance Co. v. Fastway Delivery Service, Inc., 2021 WL 4555181

Worker’s Compensation
The Court of Appeals in Georgia agreed that a worker’s compensation insurer was not obligated to protect the truck driver’s rights when it filed its subrogation claim against the insurer for the second truck involved in the accident. The statute governing rights of employees to proceed against persons other than employer who are liable for employee’s injury or death does not impose a fiduciary duty on an insurer to protect the employee’s legal interests in its subrogation action brought under that statute. Bush v. Liberty Mutual Insurance Co. 2021 WL 4810176

© 2021 Central Analysis Bureau