One month into 2018. Not much happening this month in the transportation industry, but as always we find some nuggets of info to keep you aware of issues that impact the risk and exposures of this unique industry.
UCR FEES – The FMCSA has finally released the UCR fees for 2018 and 2019. Small operations will see minimal decreases in 2018 and 2019.
The 2018 fees:
|Number of Trucks
|1,001 and above
Fees for 2019:
|Number of Trucks
|1,001 and above
HACKED! – The FMCSA’s National Registry of Certified Medical Examiners website was hacked on Dec. 1. The system went through a month of problems, although the DOT reports that driver information was not disclosed. There is now a new search tool to help drivers, motor carriers and state driver’s license agencies verify that a health care provider is certified and listed on the registry.
HOURS OF SERVICES EXCEPTIONS – The FMCSA provided some regulatory guidance to clarify the applicability of the “Agricultural commodity” exception to the “Hours of Service of Drivers” regulations, and is requesting public comments. This regulatory guidance is being proposed to ensure consistent understanding and application of the exception by motor carriers and State officials enforcing hours of service rules identical to or compatible with FMCSA’s requirements. You can view the guidance and comment request here.
TRANSPORTATION TRENDS – The Bureau of Transportation Statistics has released its report which quantifies the tremendous impact that trucking has on our economy. It is a big impact! Those interested in the nitty gritty numbers and scintillating statistics can view the report here.
MCS 150 FORMS – Starting on Feb 4, 2018, the FMCSA will no longer accept expired paper versions of the MCS-150, MCS-150B, and MCS-150C. If you are interested in seeing the updated forms, you can do so here.
CSA CHANGES – As we all know there are anticipated changes to CSA as a result of the study undertaken by the National Academy of Sciences. The FMSCA announced during a recent presentation that it has the following timeline for moving forward with a possible new CSA model.
* Now: Initiate project, gather information
* Spring 2018: Data analysis
* Summer-Winter 2018: Small-scale IRT modeling
* Winter 2018-Summer 2019: Full-scale IRT modeling
* Summer-Fall 2019: Evaluation and implementation of the plan
OOIDA v. DOT – The Court of Appeals in D.C. held that drivers were unharmed by the mere existence of inaccurate information in the Department’s PSP database when the DOT failed to remove dismissed citations from the driver’s records. The Court held that dissemination of inaccurate database information to prospective employers was, however, enough to constitute sufficiently concrete injury to establish drivers’ standing to bring action to compel DOT to delete dismissed citations from MCMI. You can read the decision here at Owner-Operator Indep. Drivers Ass’n, Inc. v. United States Dep’t of Transportation, No. 16-5355, 2018 WL 385242 (D.C. Cir. Jan. 12, 2018)
FOOD SAFETY MODERNIZATION ACT – The FDA has launched a website to provide information about the Food Safety Modernization Act and how to comply with it. The website can be viewed here.
The District Court in New Jersey dismissed a plaintiff’s claim for damages arising from a shipment transported from New York to a local New Jersey warehouse. The Court agreed that any claim against the defendant was subject to the preemptive effect of the Carmack Amendment and the FAAAA. (Surplus African Foods v. Air France, 2018 WL 372169)
The same held true in the Eastern District of Michigan where a breach of bailment claim was preempted under the Carmack Amendment. The Court went further, concluding that even under a breach of bailment claim, the plaintiff could not establish that the damage to his vehicle occurred in transit as a result of the negligence of the trucking company. Plaintiff had the vehicle repaired prior to the defendant’s examination of the vehicle so it was virtually impossible to determine when then loss occurred. (Strong v. Passport Auto Logistics, 2018 WL 352891)
A broker was successful in defeating the plaintiff’s claim that the broker was liable as a carrier for a cargo loss. The District Court examined the facts and held that there was no material fact at issue which would preclude summary judgment for the broker. In addition, when the co-defendant refused to concede that the broker was not a motor carrier, and the facts and admissions clearly proved otherwise, the codefendant was held liable for the broker’s attorney’s fees. The motor carrier was not as successful, with the Court denying its motion for summary judgment, holding that the carrier could be liable for damages which occurred while in the possession of another carrier, could be liable for consequential damages and may not have properly limited its liability. (Delta Stone Products v. Xpertfreight, 2018 WL 354461)
The District Court in New Jersey granted a motion in limine precluding certain testimony by the plaintiff’s expert on the alleged negligent training of the driver. The Court held that reliance on the Professional Truck Driver Institute curriculum, motor carrier handbooks and the large truck crash causation study was not enough to establish an admissible factual basis for the testimony. (Estate of Mallett v. Schmidt Baking Co., 2018 WL 386151)
The Southern District of Texas held that a negligence claim against a broker for property damage to the delivery location was not preempted by the Carmack Amendment. The Court held that a general negligence claim was not preempted by FAAA. In addition the Court held that the action would be remanded to back to state court for adjudication. (DNOW v. Paladin Freight Solutions, Inc., 2018 WL 398235)
Who is responsible for injuries when the cargo rolls off the truck onto someone? That was the question in the Northern District of West Virginia. For these parties the Court held that questions of fact existed as to the obligations of the shipper and the trucker to properly secure the cargo. Only the general contractor on the project was granted judgment in its favor. Everyone else will continue the battle as to whether it was negligent and/or was obligated to indemnify anyone else. (Fiedler v. R.V. Coleman, 2018 WL 3861619)
A motor carrier will not be liable for claims of negligent entrustment, wantonness or negligent hiring when there was no fact which would support that the driver should have been of any concern to the motor carrier. The Northern District of Alabama dismissed those causes of action where the evidence established that the motor carrier had adequately evaluated the driver who had no substantive issues. The standard negligence claim was permitted to continue. (Congress v. Morehead, 2018 WL 325312)
When a state court action is already proceeding which addresses claims by some of the parties to a truck accident, a separate action brought by one truck driver against the other truck driver was stayed in the Northern District of Alabama. The Court held that there was an extreme danger of piecemeal litigation and concluded that the state court action should continue first. (Smith v. Gonzalez, 2018 WL 287764)
The Western District of North Carolina held that a motor carrier was not liable for negligent hiring, training, retention, entrustment or for punitive damages when there was simply no evidentiary support for the injured plaintiff to make such a claim. While the driver had various violations on his record the motor carrier took appropriate steps to address each violation as it occurred. This case spells out a good blueprint for a carrier to follow. (McAffe v. Howard Baer, 2018 WL 411339)
A trucking company and its driver were held 25% liable for an accident which occurred when a second accident occurred nearby 26 minutes after the truck driver’s accident. The Court of Appeals in Kansas held that the truck driver’s negligence caused the first accident and the needed post-accident traffic control actions and there it was reasonably foreseen that there could be a subsequent accident. (Van Dorn v McNish, 2018 WL 385733)
What happens when no one can find the copies of old insurance policies? In the Appellate Court in Illinois a trucking company sought insurance for liabilities which arose from truck cleaning facilities which cleaned hazmat materials from its truck. The trucker was the subject of environmental contamination cases. The Court held that the trucker was able to establish that the preponderance of the evidence showed that the policies, g/l and auto, were likely issued and subject to the known terms of other policies. The trucker was entitled to recover under the policy. (Travelers Indemnity Company b. Rogers Cartage Company, 2018 Il. App (1st) 160780)
The Western District of Oklahoma held that a claim for negligent entrustment could be alleged against a trucking company, even when it conceded vicarious liability for the driver. The Court held that where the plaintiff alleged that the carrier knew or should have known that the driver was incompetent it was premature to dismiss the cause of action for negligent entrustment. (Annese v. US Express, 2017 U.S. Dist. LEXIS 212545)
The Court of Appeals in Georgia held that under its specific venue statue for claims against motor carriers a motor carrier would not be permitted to transfer a wrongful death action to the county where its principal place of business was located. The Court held that pursuant OCGA § 40-1-117 (b) venue was proper where the accident occurred and remanded the action back to that venue. (Blakemore v. Dirt Movers, 2018 WL 359951)
The Court of Appeals in Nevada held that a driver was entitled to collect worker’s compensation benefits for injuries suffered when he was attacked by another driver at a truck stop. The Court held that the injury arose out of employment if there is a causal connection between the injury and the employment. As the plaintiff alleged that he was injured by the other driver when he went to discuss his improper driving tactics the Court concluded that there was a causal connection. (Savage Sweets, Inc. v. Johnson, 2017 WL 6804636)
The Assigned Risk Loss Sensitive Rate Plan was held to apply to a trucker’s policy and premium determination. The Court of Appeals in North Carolina reversed the decision of the lower court that it did not apply concluding that the policy provisions could not be read out of context. Where the policy specifically noted that it was subject to the rating of the LSRP the insured could not argue that it was not applicable. (ARD Trucking v. Travelers Prop. Cas. Co. of Am, 2018 S.C. App Unpub LEXIS 17)
California will not permit an injured truck driver from obtaining the names of the independent medical reviewers who determined that the truck driver was not entitled to additional medical services. The Court held that the secrecy requirement of the California statute did not deny due process to the driver. (Zuniga v. Worker’s Compensation Board, 2018 WL 388009)
Off to Costa Rica for a warm week of vacation! See you next month.