We hope you all had a marvelous and fattening Thanksgiving and enjoyed a bit of a breather before we hit the last month of the year. With the holidays upon us everything starts to slow down as we turn to holiday parties and preparation for the next round of holidays. Whatever you will be celebrating in December we wish you a happy time and joyous holidays. For me – Merry Christmas to all.
With those wonderful holiday thoughts in mind, Shuie and I were warmed by the attached story of the truck driver delivering the special Christmas tree which will grace the national’s capital. When you are having your morning coffee, take a moment to read the story. It is good reminder of how great our country is, and how trucking keeps everything going.
This month we report:
FSMA – The FDA released a Small Entity Compliance Guide to help small businesses understand the requirements of the Sanitary Transportation Rules. Small businesses have until April 6, 2018 to comply. In the guide, shippers, loaders, carriers and receivers covered by the Sanitary Transportation Rule will find descriptions of the rule requirements in an easy-to-read, question and answer format that includes information on topics such as training and record keeping. You can view the guidance here.
NTSB REPORTS – Have you ever had a chance to review an NTSB report on a truck accident? They just released their report on a fatal crash involving a fatigued motor coach driver. Investigators determined the driver was in a state of “acute sleep loss” at the time of the crash. He had approximately five hours of sleep in the 40 hours preceding the crash. There was no evidence (e.g., tire marks) to indicate the driver took any action to avoid the barrier once the vehicle departed from its travel lane. The report is interesting and is worth the read to see what they look for and to consider the impact of these reports on litigation exposures. You can read the report here .
CVSA RESULTS – CVSA released the report of its targeted brake enforcement campaign in September 2017. Approximately 14% of inspected vehicles were placed out of service for brake violations. 7,698 inspections were done in 40 jurisdictions in Canada and the U.S. 22 percent (1,680) of vehicles inspected were placed out of service for vehicle violations of any kind. 78 percent of the vehicles inspected did not have any out-of-service conditions. CVSA also released data collected on Brake Safety Day that examined antilock braking systems. The release notes that ABS violations were counted when the malfunction lamp did not work or the malfunction lamp stayed on, indicating a fault of some kind.
The findings are as follows:
* 5,456 air-braked power units required ABS attention; 11 percent (610) had ABS violations.
* 3,749 trailers required ABS attention; 14 percent (540) had ABS violations.
* 821 hydraulic-braked trucks required ABS attention; 5 percent (45) had ABS violations.
* 49 buses required ABS attention; 10 percent (five) had ABS violations.
ELECTRONIC LOGGING DEVICES – The date of compliance is quickly approaching, barring any congressional tolling. The FMCSA has announced that in advance of the Dec. 18, 2017 implementation date and to further facilitate transition to the rule by motor carriers, the FMCS will be providing guidance related to enforcement procedures during the ELD transition. These will include a 90-day temporary waiver from the ELD requirement for transporters of agricultural commodities, formal guidance specifically pertaining to the existing Hours-of-Service exemption for the agricultural industry, and guidance on the “personal conveyance” provision.
FMCSA will also provide guidance on the existing 150 air miles hours-of-service exemption in order to provide clarity to enforcement and industry. The guidance is designed to allow industry to maximize the use of this statutory exemption. They also advised that citations issued between December 18 and April 1 for violations of the rule will not be posted on the motor carriers’ safety profile.
CURRENT CASES
CARGO
While a trucker/broker was able to avoid the impact of a default judgment it was unable to have a cause of action for fraudulent misrepresentation dismissed. The Eastern District of New York held that such a claim would not be preempted if the defendant was a broker. As the status of the defendant, either as a carrier or broker, was still in question, the Court would allow that cause of action to proceed. (JAS Forwarding v. Owens Trucking, 2017 WL 5054715)
While the defendant may remove a case which seeks damages for loss to goods in transit, it is incumbent upon the defendant to prove that the damages are more than $10,000. Where the plaintiff alleges damages below that amount the case will be remanded to the state court for adjudication. (Dees v. Coleman American Moving Service, 2017 WL 4838845)
AUTO
The Eastern District of Louisiana has determined that an action for negligent hiring against a trucking company could not stand when the trucking company had already admitted vicarious liability for the actions of the driver. No secondary causes of action would be sustained. (Wright v National Interstate Ins. Co., 2017 WL 5157537)
An insurer was permitted to obtain a default judgement against a motor carrier declaring that a policy did not provide coverage because the auto was not scheduled on the policy. The Court rejected any claim for attorney’s fees and rejected the request to declare that the MCS-90 did not apply to the loss, leaving open the ability for the insurer to provide evidence to support the declaration. (United Financial Casualty Co. v. Knock-Out Transportation, 2017 U.S. Dist. LEXIS 189819)
A trucking company was successful in avoiding damages from a truck accident when the plaintiff, who was operating the other vehicle, failed to have insurance of her own. The Eastern District in California held that under California law a plaintiff could not recover non-economic defenses when she failed to have insurance. (Sykes v Shea, 2017 WL 4923327)
Carmack Amendment preemption for personal injury claims? The Eastern District of Pennsylvania held that negligence styled claims, which were based upon injuries suffered when cargo fell on him, was preempted. Since the conduct of the trucking company that damaged the cargo was the sole basis for the claim for personal injuries the Court held that Carmack was applicable and preempted all state law claims. (Kraus v. Iris, 2017 WL 5624951)
When a plaintiff injured during the unloading process names a “john doe” trucking company to avoid statute of limitation issues it may still be prevented from pursuing the trucking company. The District Court in Maryland held that as the plaintiff failed to name the trucking company within the statutory period the Court would not relate the filing date back to the original date where there was no evidence that the trucking company knew or should have known it would be named in a suit. (Daniels v Carter Jones Lumber Company, 2017 WL 5495959)
The District Court in New Mexico refused to allow an insurer to proceed with a declaratory judgment action seeking a declaration that it provided no coverage for a truck accident when factual issues remained to be resolved in the personal injury action. The Court determined that the state court could more fully address many of the relevant issues. The Court dismissed the action without prejudice. (Spirit Commercial Auto RRG v. GNB Trucking, 2017 WL 5468670)
Another suit against a broker for personal injury. The District Court in Maryland refused to dismiss an action against a broker arising from negligent selection of a motor carrier who caused a fatal accident. The Court held that while the broker actions were undertaken in Michigan, the accident occurred in Maryland and Maryland law would allow for jurisdiction over the broker and due process would allow a wrongful death action to proceed. (Vogel v Morpas, 2017 WL 5187766)
A truck driver was granted reconsideration of the dismissal of his suit against a consignee when he was injured when unloading a printing press. The District Court in Colorado held that under the Uniform Conflict of Laws- Limitations Act, the plaintiff was entitled to borrow the statute of limitations of Minnesota where the accident occurred. (Jenkins v. Duffy Crane & Hauling, Inc., 2017 WL 4919221)
The Northern District in Texas dismissed a complaint against an insurer seeking unspecified damages by the insured. The Court held that a complaint which alleges only there were accidents and that the insurer failed to communicate with the insured concerning suits brought against it were insufficient to support a cause of action. (Petty v Great West Casualty Company, 2017 WL 5068171)
Evidentiary issues abounded in mutual motions in limine in the Middle District of Pennsylvania. Although obviously case specific reviewing the Court’s decision on admissibility of prior violations, pursuit intervention technique maneuvers, hours of service issues and post- accident drug and alcohol testing, or lack thereof, could be helpful in future claims. (Knecht v. Balanescu, 2017 WL 4883198)
A trucking driver was permitted to proceed with his action against parties involved in the safety of the location of his drop off when he was damaged by electrical wires during the unloading process. The Middle District of Louisiana held that plaintiff alleged sufficient facts to support causes of action against the defendants and that a third party action against the trucking company for indemnity would also stand. The third party action was based upon the Overhead Power Act which requires parties, apparently including trucking companies, who will be working with 10 feet of power lines, notify the power company of the intended work or be responsible for indemnity. (Moore v Home Depot, 2017 WL 5180431)
WORKER’S COMPENSATION
An insurer was permitted to introduce a doctor’s report into evidence, despite the argument that it failed to disclose to the claimant that it was an IME and not a medical treatment appointment. The claimant was not permitted to seek additional medical treatment based in part, upon the IME. (Stoker v Thomas Fowler Randal, Inc., 2017 Ark. App. 594)
The Court of Appeals in Iowa held that a truck workers’ compensation insurer was entitled to reform a settlement agreement that did not reflect the correct numbers for the settlement. The Court rejected the plaintiff’s argument that the mistake was not mutual and therefore not subject to reformation as it was simply a scrivener’s error. (Reihe v Midwest Viking, 2017 WL 5185445)
A worker’s compensation insurer was permitted to seek contribution from a predecessor insurer for certain compensation payments made when it was alleged that injuries from a second accident started with a first accident under the earlier policy. The 1st Circuit Court in Louisiana held that a 3 statute of limitations would run from the date of the last payment of a benefit made by the defendant insurer when seeking contribution for SEB’s or medical benefits. (Big 4 Trucking v. New Hampshire Insurance Co., 2017 WL4973110)
The Court of Appeals in Washington upheld the decision of the Commission of the Employment Security Department that the plaintiffs which were all motor carriers who owed unemployment-insurance tax for owner operators leased it to the carriers who then used that equipment under contract to haul freight for that carrier. The Court held that the Federal Aviation Administration Authorization Act did not expressly preempt the tax assessments; neutrality provision in federal regulation on written-lease requirements for motor carriers did not preempt the tax assessments on field or conflict grounds; the employees were not free from control and direction of purported employers and were not customarily engaged in an independently established trade. (Swanson Hay Company v. State of Washington, 2017 WL 4914200)
JURY VERDICTS!
Defense Verdict – Audrey Boyd v. United States of America (U.S. mail truck hit plaintiff) 2017 WL 5242150 – District Court Arizona
Defense Verdict – DeJesus v. Fowlds Brothers Trucking, 2017 WL 5467129 Court of Common Pleas of Pennsylvania, Thirty-eighth Judicial District, Montgomery County
$54,155,900 – Denton v. University Am-Can, 2017 WL 5503339, including $35,000,000 in punitive damages. 2017 WL 4810960- Cook County Judicial Circuit
Again, we wish you all a wonderful and memorable holiday season!
