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Bits & Pieces

September 2021

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Time flies when you’re having…fun? 

I know the last 18 months have been weird for all of us, but I continue to be shocked at how quickly the time has passed.  October starts my favorite time of year.  I love the cooling weather and the fall colors.  I just had the pleasure of completing a motorcycle trip through the Northeast US and Canada (13 states & 2 Provinces) and fall is shaping up to be beautiful.  We live in a beautiful part of the world and we are truly blessed.  Everyone we met along the way was wonderfully friendly and helpful.

So, whether you’re a pumpkin-spiced everything or a bring-back summer type of person, here’s to October! Lastly, I look forward to seeing many of you at the Motor Carrier Insurance Education Foundation conference on October 7th & 8th.

CAB Live Training Sessions

Tuesday, October 12th @ 12p EST: Mike Sevre will present Intro to CAB: Flow & Navigation. This is a popular session that we get a good number of requests for.  The session will focus on the layout of the site, how to find specific resources, and a general overview of CAB.  Please use the link below to register.

Tuesday, October 19th @ 12p EST: Chad Krueger will present on CAB’s Shipper Central Resource.  This is an enhancement available with our VITAL+™ resource.  The enhancement was released to the site a few months ago and affords a deep dive into a motor carrier’s shippers.    Additionally, it provides a way to search for specific shippers and associate inspections.   You can also review motor carriers transporting for the specific shipper.  If you’re not familiar with this resource, this is a great session for you!  Please use the link below to register.

CAB subscribers can register for either or both sessions from our Webinars page or by 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:

Follow us at CAB Linkedin Page  CAB Facebook Page

CAB’s Tips & Tricks: Reminder: Closed Enforcement Case Information Available

This is an enhancement that we put in place early in 2020, but we have had a few folks recently ask if we have the information, so here is a quick refresher.  Closed Enforcement Case information (if any) is located in the History Tab in the CAB Report®.  You will also find information from the last 6 years noted in the CAB Alerts section of the General Tab (first page) of the CAB Report. Detailed information, like the screengrab below, can be found in the History Tab.

As a quick background, FMCSA enforcement cases are initiated following compliance reviews, complaint investigations, terminal audits, roadside inspections, or other investigations. We will be providing the full history of closed enforcement cases. Why is this information important? CAB users can use this information to better understand if a motor carrier has a closed enforcement case and engage with the motor carrier to understand what caused the enforcement action and how it was resolved.

An enforcement case is deemed “closed” once FMCSA issues a carrier a “Notice of Claim” (NOC) and the carrier has (1) paid the penalty in full, (2) signed a settlement agreement, or (3) defaulted on the NOC, upon which a “Final Agency Order” was issued.

As with all of our tools & enhancements, we strive to present the data in a manner that will help provide additional clarity. We at CAB are constantly striving to improve our tools and resources to create value 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:

NHTSA data suggests highway deaths climbing: Data shows traffic fatalities rise despite drop in miles traveled. The new year got off to a hot start with regard to traffic fatalities, logging a 10.5% increase in deadly accidents in the first quarter this year compared to last, according to U.S. Department of Transportation’s National Highway Traffic Safety Administration’s Early Estimate of Motor Vehicle Traffic Fatalities for the First Quarter of 2021. NHTSA estimates that 8,730 people died in motor vehicle traffic crashes in the first three months of 2021, and the increase comes even as driving declined. Preliminary data reported by the Federal Highway Administration show that vehicle miles traveled (VMT) in the first three months of 2021 decreased by 2.1%, or about 14.9 billion miles. The fatality rates per 100 million VMT for the first quarter of 2021 increased to 1.26 fatalities per 100 million VMT, up from the projected rate of 1.12 fatalities in the same time last year. 

CVSA Releases Bulletin on which Documents can be Accepted Electronically:  The purpose of this bulletin is to ensure that all enforcement personnel and industry stakeholders are aware of the acceptability of certain electronic documents, provide a central source for all the regulatory guidance, and provide examples of documents requested at the roadside or in a compliance review that can be surrendered in electronic format.  These are examples of documents that may be presented during a roadside inspection in electronic format: Driver medical cards and certificates; Skills Performance Evaluation certificate (if applicable); Delivery receipts, shipping papers or bills of lading (non-hazardous materials/non dangerous goods only) see link for note; Record of duty status; Supporting documents to verify record of duty status; Daily Vehicle Inspection Report (if applicable, Canada only); Periodic inspection certificates or reports; Lease agreement.  To review the full CVSA Bulletin, click here.

Spot load volume returns to pre-holiday levels: The number of loads posted to the DAT load board network rose 17% from Sept. 13-19 compared to the holiday-shortened Labor Day week, in line with expectations. The number of equipment posts increased 15% over the same timeframe. Spot line-haul van and refrigerated rates remained elevated as shippers work to move freight through congested supply chains, especially in port markets. The national 7-day average van rate topped $2.50 per mile last week and the reefer rate was $2.86 a mile — all-time highs for both equipment types. The overall number of loads moved on DAT’s top 100 lanes by volume rose 23.3% and the number of loads out of Los Angeles alone surged by 41% week-over-week. Rates from Los Angeles to Stockton jumped 41-cents to an average of $4.32 a mile (excluding fuel), $1.18 a mile higher than this time last year.  For more on this topic, click here.

Administration orders OSHA to Issue a COVID Emergency Temporary Standard (ETS): The ETS will require all Employers with 100+ employees to ensure their workers are vaccinated or tested weekly.  The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.  The rule is expected to be issued 30-60 days after the announcement on September 9th.  From there, the ETA can remain in place for six months.  After that, it must be replaced by a permanent OSHA standard, which must go through a formal rule-making process involving a standard notice-and-comment period.  Please click here for additional OSHA guidance on mitigating and preventing the spread of COVID-19 in the workplace.

Louisiana staged-accident fraud scheme up to 40 indictments, 27 guilty pleas:  Two more guilty pleas, seven indictments in Louisiana staged-accident fraud scheme.  United States Attorney Duane A. Evans has recently announced two more guilty pleas and seven new indictments in the widespread staged-accident fraud scheme in New Orleans, bringing the total to 40 indictments and 27 guilty pleas.  On Aug. 2, Genetta Israel, 53, of Houston, Texas, pleaded guilty to conspiracy to commit wire fraud. She and three others were charged with staging an accident on June 12, 2017, in New Orleans. Israel was allegedly recruited to participate in the scheme to obtain money through fraud.  Israel was treated by doctors and healthcare providers at the direction of an attorney also involved in the scheme and received a nearly $60,000 settlement from the staged crash.  For more information on this topic, click here.

CAB Calculates the Percentage of Unsafe Driving Violations that Receive Citations:  As most of us know, the CAB Report® (amongst many other things) provides individual inspection detail for motor carriers.  These could be clean inspections or inspections that result in violations.  An interesting thing to note in regard to Unsafe Driving Violations is that a driver can receive a violation, but not necessarily get a ticket or citation.  Thus the violation would not appear on the driver’s Motor Vehicle Record (MVR) review.  Basically, the violation is applied to the motor carrier’s CSA history and the driver’s Pre-Employment Screening (PSP) history, but the driver does not get a ticket, monetary fine, and/or citation.  Over the prior 12 months, about 33% of Unsafe Driving Violations have received a citation.  The highest Citation Rate is for Texting at 52%.  The lowest is Other Driver Violations at 17%.  Speed 4 (15 MPH+/Construction Zone) is 44%.  Draw your own risk management conclusions, but it is interesting to note the relatively low percentage of Unsafe Driving Violations that will actually appear on a driver’s MVR.  Below is an example of an inspection that resulted in a Speed 4 Violation, but not a Citation.     

Is the owner-operator model a legal minefield? Attorney weighs in: Being an owner-operator is an appealing career option for many drivers, but motor carriers that create opportunities through lease-purchase agreements face mounting legal challenges. Motor carriers were hoping for the Trump administration to change the Federal Labor Standards Act to strengthen their defense. Changes were scheduled to take effect on March 8, 2021, but were quickly nullified when the Biden administration took over control of the Department of Labor. The Democrat-controlled House of Representatives also passed a PRO Act earlier this year to amend the federal National Labor Relations Act with the same Assembly Bill 5 (AB-5) test used in California to determine contractor status. The AB-5 test has been the law in California since January 1. The PRO Act passed in the House but has not gone anywhere in the Senate yet.  To continue this article, click here.

Joshi has confirmation hearing, set to lead FMCSA:  Joshi, nominated by President Joe Biden in April to serve as the agency’s full-time administrator, previously served on the New York City Taxi and Limousine Commission. ATA President and CEO Chris Spear recently sent a letter to leaders of the Committee on Commerce, Science and Transportation expressing his group’s support for Joshi’s candidacy.  “In her eight months serving as Deputy Administrator, Ms. Joshi has become a vital partner to the trucking industry in addressing issues of safety, infrastructure, workforce development, and more,” said Spear wrote. “The COVID-19 pandemic and its disruptive impact on the U.S. supply chain did not pause for the transition to a new Administration, and her response to those challenges has been swift, sure, and effective.“  Spear said ATA has been particularly impressed with Joshi’s reliance on data to address real-world needs, throughout her tenure as Deputy Administrator.  For more information, click here.

Steering issue prompts recall of over 100,000 Freightliner Cascadias (from CCJ News Brief): More than 105,000 Freightliner trucks recalled for steering issue. Daimler Trucks North America is recalling approximately 105,183 model year 2019-2021 Freightliner Cascadia tractors due to a potential issue in the steering system, according to National Highway Traffic Safety Administration documents. According to the recall, the drag link taper joint in the affected trucks may not have been tightened sufficiently and could come loose, resulting in a complete separation of the drag link from the steering arm. Separation of the drag link can cause a complete loss of steering control. DTNA dealers will inspect the drag link taper joint and repair it as necessary. Click here for NHTSA’s Safety Recall Report.

CASES

AUTO

The Court of Appeals in Michigan agreed that when the motor carrier carried the insurance on a tractor leased from an owner operator, that insurer was responsible for PIP benefits when the owner-operator was injured. The court determined that the owner operator was essentially self-employed by his corporation and could be seen as being an employee of both the motor carrier and himself. The Court concluded that under MIchigan law, MCL 500.3114(3) an injured person who owned the vehicle involved and who worked as a self-employed independent contractor was subject to the employer-employee exclusion leaving the defendant, who insured other vehicles for the plaintiff, as highest in priority for payment. Toduti v. Progressive Michigan Ins. Co., 2021 WL 4001802


The plaintiff passenger could not be liable for the accident with a tractor-trailer so the Western District of Texas agreed that any affirmative defense of contributory negligence should be dismissed. The same was not true for the plaintiff vehicle operator, who the motor carrier claimed was driving too fast and contributed to the cause of the accident. That claim remained. Conejo v. EMJB, Inc., 2021 WL 4254899


Everyone wants to get away from litigating in Pennsylvania. The Eastern District of Pennsylvania agreed that the motor carrier defendant could move the personal injury action to the state where the accident occurred. The court disagreed that plaintiff’s medical treatment, post accident, in Pennsylvania could support venue in its jurisdiction. Miller v. SAWA Transportation, 2021 WL 4399665


When the motor carrier had no clear policies on when and where a driver could stop to urinate the Eastern District in Arkansas concluded that the plaintiff could allege independent claims of negligence against a motor carrier who conceded vicarious liability for a fatal accident. The accident occurred after the driver attempted to pull back into moving traffic after stopping on the side of the road to relieve himself. The court also held that a child born after the death of the plaintiff was not entitled to recovery under the wrongful death statute. Crouch v. Master Woodcraft Cabinetry, 2021 WL 4155583. In a related decision the court permitted the plaintiff’s expert to testify concerning the impact of failure to comply with certain federal safety regulations safety regulations. 2021 WL 4150206


A motor carrier asserted a counter-claim against a plaintiff for towing costs, impound fees, insurance surcharges and the driver’s claims for lost wages, lost earnings and emotional trauma when the defendant struck and killed the plaintiff. The plaintiff was intoxicated and sitting in an unlit vehicle on the road when struck by the defendant. While the carrier failed to file the counterclaim within 6 months of the death of the plaintiff, which would make it time barred, the Northern District of Ohio concluded that the counterclaim could still be asserted as an offset against the plaintiff’s claim. Krendl v. Intermark Transport, 2021 WL 3887765. In a related decision the court denied summary judgment to the motor carrier, who contended that the plaintiff decedent was solely at fault for the accident. As there was a reasonable question of fact on whether the defendant should have seen the vehicle and stayed back further the motion was denied. 2021 WL 4125401


Plaintiff’s personal auto policy provided no UM/UIM coverage when the tractor plaintiff owned was insured under a different policy. After exhausting his commercial auto UM policy, the plaintiff sought additional protection under his personal policy. The Eastern District of Pennsylvania agreed that the “regular use” exclusion under the policy was applicable as the vehicle was furnished and available for his regular use. Campbell v. The Travelers Home and Marine Insurance Co., 2021 WL 4137507


Direct claims asserted against officers of a trucking company could not withstand a motion to dismiss in the Eastern Division of Michigan. The court held that the plaintiffs could not support breach of any individual duty owed by the officers of the trucking company. The claim against the company and the truck driver for negligent, but not intentional, infliction of emotional distress arising out of the fatal accident was permitted to proceed. Solek v. K&B Transportation, Inc., 2021 WL 4290181


The battle of the experts is often a focal point in the war of litigation. The Southern District in West Virginia, following up on last month’s decision, evaluated expert issues on the standard of care of truck brokers, among other issues. The court concluded that the plaintiff’s expert could testify on the standard of care required for truck brokers when selecting motor carriers. Gilley v. C.H. Robinson Worldwide, Inc. 2021 WL 4316811


When the plaintiff failed to allege any facts to support independent negligence claims against a motor carrier for an accident involving one of its drivers, the Middle District of Georgia concluded the claims must be dismissed. The dismissal was without prejudice, giving the plaintiff an opportunity to repled the claims with factual support. Bryan v. Swisher, 2021 WL 434271


Moving assets from one company to another company does not always accomplish the intended effect. The Northern District in Ohio concluded that the plaintiff would have to bring a separate action, after the initial defendant was found liable, if he wanted to seek to attach the assets of the new company. The case was too far down the line to allow for amendment in this suit, but plaintiff had a right to bring a separate action for the alleged fraudulent transfer of assets. Sutphen v. Midwest Construction Services, Inc., 2021 WL 4340065


A motor carrier was not successful in defeating a temporary restraining order imposed by the Court of Appeals in Texas. The court held that there was ample evidence that the plaintiff would be irreparably
harmed if the motor carrier was not enjoined from disposing of the vehicle, the cargo and the data involved in the truck accident which injured the plaintiff. GL Logistics Co. v. Flores, 2021 WL 3862232


While a bus company was entitled to summary judgment on direct negligence claims when it conceded vicarious liability for the actions of an intoxicated and speeding bus driver, the same result was not accorded for the claims for gross negligence and punitive damages. There was evidence to support the claim and the Southern District in Mississippi agreed that state law would allow those claims to survive. The decision also addresses the admissibility of various experts proffered by the plaintiff. Deliefde v. Nixon, 2021 WL 4164680


A truck broker was required to produce a copy of its contract with its customer in the Eastern District of Missouri. The court rejected the argument that the contract was a trade secret and concluded that it was relevant to determine whether the defendant was a carrier or a broker for the purposes of its liability for the accident. Carter v. Khayrullaey, 2021 WL 4033009


When the accident occurred in Nebraska, the fact that the motor carrier was a California corporation would not allow the plaintiff to assert a claim for punitive damages under California law. The District Court in Nebraska acknowledged that Nebraska law prohibits punitive damages. Vanicek v. Lyman-Richey, 2021 WL 4196969


The fact that a plaintiff made a settlement demand for more than $75,000 before serving suit papers did not trigger a duty to remove a case which was subject to federal court jurisdiction. The Central District of California concluded that the motor carrier had timely removed the case when it did so within 30 days of receiving the complaint and further concluded that plaintiff’s complaint could not withstand a motion to dismiss for failure to state a claim. The plaintiff was granted leave to amend. Plotkin v Swift Transportation Company, 2021 WL 4197337


Claims against the U.S. Government arising from a truck accident when the truck was hauling U.S. Mail was dismissed by the Northern District of Mississippi. While the plaintiff was permitted to continue the suit against the motor carrier it failed to exhaust all required administrative remedies against the U.S government. The court also held that the government had not waived its sovereign immunity by directing and controlling the transport. James v. Ailes, 2021 WL 3877681


In the battle of the experts, the Court told them both to go home. The Southern District in Ohio concluded that the opposing experts could not testify as to whether the driver did or did not violate FMCSRs by operating in an out-of-service condition. The breach, even if it occurred, did not cause or contribute to the accident. Evans v Aloiso, 2021 WL 4189692


The District Court in North Carolina determined that it has no need to adjudicate a declaratory judgment action on the applicability of coverage for a truck accident when its only connection to the matter was the situs of the accident. The facts of the accident were not relevant, necessarily, to the evaluation of coverage under the policy and therefore the court transferred the case to the home state of the motor carrier. Progressive Casualty Insurance Co. v. Future Van Lines, 2021 WL 4413319


The District Court in Minnesota was not happy with the parties in a dispute over premium returns and security for filing claims when there was a large self-insured retention under the policy. After the parties resolved all of those issues they continued to litigate the issue of fees and potential damages that might have occurred. The court rejected these claims and sent them on their way. RLI Insurance Co. v. Stan Koch & Sons Trucking, Inc. 2021 WL 4199370


When the plaintiffs, a truck driver and his employer, sued both the insurance carrier and the broker for uninsured motor coverage, the Southern District of Georgia agreed that it had no jurisdiction over the removed action when the broker was not diverse to the plaintiff. Plaintiffs’ argument that the broker bore liability if the insurer was successful in denying the coverage was not without some merit and therefore the broker was not a sham defendant. The Onionman Company v. Nationwide Agribusiness Insurance Co., 2021 WL 4282582


When the plaintiff failed to properly serve a Canadian truck driver the Court of Appeals in Washington agreed that the complaint against the driver should be dismissed. The court also held that the plaintiff could not amend the complaint to add in the truck company who employed the driver when it failed to seek the amendment prior to the expiration of the statutory limitation of time. The identity of the company was easily ascertainable during the limitation period. Guenther v. Galaxy Pacific Services, LLC. 2021 WL 4436211


Plaintiff’s claim for willful and wanton negligence against a motor carrier were permitted to stand in the Southern District of Illinois. The motion to dismiss was denied as the court agreed that the plaintiff’s allegations that the carrier engaged in willful and wanton conduct by flouting and encouraging its employee to ignore safety standards and regulations, by failing to adequately train its employee, and by recklessly employing someone with a history of motor vehicle crashes and citations was enough to defeat a motion to dismiss. Montgomery v. Caribe Transport II, LLC., 2021 WL 4132221. In a related decision the court denied the motion to dismiss filed by the truck broker, concluding that FAAA does not preempt a claim of negligence against a broker. 2021 WL 4129327


In another case the Southern District of Illinois also concluded that FAAA did not preempt negligence claims against brokers. However, in this case there was no evidence to support a claim against the broker for vicarious liability, negligent hiring or voluntary undertaking and the broker was granted summary judgement on all counts. Crouch v. Taylor Logistics Company, LLC., 2021 WL 4355403


The Graves Amendment remains applicable to claims against lessors of vehicles which meet the requirements of the amendment. The Western District of Arkansas dismissed the claim against the lessor, and also dismissed direct negligence claims against the motor carrier as it had conceded liability for the driver’s action which may have led to the crash. Hamilton v. Brewster, 2021 WL 4236607


The District Court in Massachusetts also applied the Graves Amendment to negligence claims asserted against a lessor of the tractor, concluding that summary judgment was warranted in favor of the lessor. The court also held that the plaintiff, who was a passenger in the defendant’s tractor, was not entitled to pursue the defendant because there was a direct employment relationship between them and the defendant was liable for the payment of workers’ compensation through the company that hired both of them The exclusive remedy of worker’s compensation was applicable to the plaintiff’s claims. Moura v. Cannon, 2021 WL 4422964


CARGO
The Northern District in Texas dismissed a claim for intentional infliction of emotional distress against a motor carrier arising from a shipment of household goods. The court also dismissed the claim for attorney’s fees, but does not seem to have considered the applicability of the regulation which allows for attorney’s fees in certain circumstances. Plaintiff did not oppose the motion so that falls on the plaintiff. Maniaci v. Plycon Transportation Group, 2021 WL 4190643


Interesting turn of events on a household goods claim in the Eastern District of New York. The court denied the plaintiff’s motion for a default judgment against the defendants who are alleged to have wrongfully withheld delivery of plaintiff’s goods for more than a year, The court concluded that the plaintiff had not properly alleged whether he claimed that the defendants were motor carrier subject to Carmack or brokers, potentially subject to state law claims. Plaintiff is going to have to make up his mind and replead the complaint. The court did agree that individual defendants were alter egos of the motor carrier. Hammock v. Moving State to State, LLC., 2021 WL 4398086


PHYSICAL DAMAGE
The plaintiff was unable to sustain claims against its physical damage insurer for a number of reasons, including delay. Plaintiff claimed that he never got the checks for the equipment (which are alleged to have been stolen by his ex wife). Waiting more than 3 years to bring the action against the insurer was not an option and the suit was time barred. The court also held that the insurer was not responsible for toll charges incurred after the loss because the plaintiff retained the title to the vehicle and the insurer had no legal obligation to take title. Weddington v. Progressive Casualty Insurance., 2021 WL 4423067


WORKER’S COMPENSATION
Take a look at Moura v. Cannon, 2021 WL 4422964 for a decision on the applicability of the worker’s compensation rule when the defendant paid for the worker’s compensation benefits afforded by an employing party.


The Western District of Louisiana concluded that the United States could not assert tort immunity for injuries to a truck driver delivering mail for the government. Even if the government was correct that the work furthered by the driver was within the trade, business, or occupation of the USPS, the contract between the USPS and the motor carrier did not recognize USPS as a statutory employer, and therefore there was no immunity. Frantom v. USA, 2021 WL 4343949


When a trucking company failed to maintain worker’s compensation insurance for its drivers, the Court of Appeals in Utah agreed that the plaintiff driver was entitled to assert all direct negligence claims against the motor carrier. Because these claims were permitted under the Worker’s Compensation Act, the plaintiff was also able to assert a claim for attorney’s fees under the Act. Farman-Rava v. Blu-Auto Transport, LLC., 2021 WL 4025718.

© 2021 Central Analysis Bureau