CAB Bits & Pieces October 2018

Good day CAB Nation!

Time flies! How can we only be a few weeks from Thanksgiving? We hope this month’s Bits and Pieces finds everyone in good health and staying warm. For those of you that attended the Motor Carrier Insurance Education Foundation (MCIEF) in Orlando earlier in October, I thank you for the warm reception from all I met while there.

The future is bright and CAB is growing again! This month we welcome Dominique Dube. Dominique is our new Director of Business Development. As an experienced Marine Underwriter, with a degree in Economics, she brings new expertise to our growing group. We look forward to adapting that expertise to our CAB systems, tools and resources. Her excitement and energy is contagious. She looks forward to being a resource and guide for our systems and forging new relationships. Please, join me in welcoming her to CAB.

CAB’s Tips & Tricks:

A new feature we’re adding to the Bits & Pieces is the aforementioned Tips & Tricks. CAB is regularly updating and adding new features to the system and we will be sharing some of those here.

Did you know under CSA BASICs tab, you’re now able to sort the Weight, Category, Total and OOS columns within each of the BASICs Categories? Just click on the word at the top of the column and an arrow will appear and sort the data either ascending or descending.

This is just one of the many improvements our talented programmers are adding on a regular basis. I look forward to sharing these enhancements during future Bits & Pieces. As always, our ultimate goal is to provide usable and actionable data to help CAB users Make Better Decisions.

This month we report:

Drug Testing. A major legislation designed to tackle the opioid crises was signed into law this month. The law directs the Abuse and Mental Health Services Administration to report on proposed guidelines for hair testing and the Secretary of Health and Human Services to report to congressional transportation committees on the status of hair testing guidelines for truckers. This has been a topic of interest for the last few years as many drivers oppose the hair testing, which is more likely to show some degree of drug use. The law also addresses reporting requirements on the development of the Drug and Alcohol Clearinghouse which we have been waiting a long time for.

FMCSA Studying Drivers’ Schedules vs. Performance. The point of the study, “Crash Risk by Commercial Motor Vehicle Driver Schedules,” is to collect and study HOS and crash data to analyze how HOS rules are being used and the effect of schedules on crash risk. The FMCSA is collecting the data to answer the following questions.

• Relative crash risk by hour of driving
• Relative crash risk by hour of driver per week
• Relative crash risk of driving breaks
• Relative crash risk as a function of recovery periods
• How each of the HOS provisions is being used

The comment period is open through December 23, 2018. More information can be obtained via the FMCSA Website here.

Demand for Flatbeds drop off. As we have always reported, you can follow the economy by following the trucks. Industry analysts wonder if the drop in the demand for flatbeds is a sign of an industrial slowdown. The flatbed tender rejection index (who knew there was such a thing) shows a decline of 48%. The index measures the apparent supply and demand in the flatbed market

Automated Vehicles 3.0 The DOT has released its report on Automated Vehicles 3.0 – Preparing For The Future of Transportation. The DOT focus on automated vehicles has moved to the transportation industry. The report notes:

What does this mean? At this point not a whole lot, however it is important to note, regulatory bodies are planning for the future. In general, things in Automate Vehicles 3.0 are suggestions and vague guidelines, most of them, voluntary. You can review the report here at https://www.transportation.gov/sites/dot.gov/files/docs/policy-initiatives/automated-vehicles/320711/preparing-future-transportation-automated-vehicle-30.pdf. The report has been opened for comments. More information about filing comments can be found here.

The American Transportation Research Institute released its 2018-Critial Issues in the Trucking industry Study. This annual study polls the trucking industry and then compiles the responses into the top 10 critical issues list. Driver Shortage, Driver Retention and Hours of Service were ranked as the top 3 respectively for Motor Carriers. Driver shortage has been in the top 3, four of the last five years. Hours of Service has been in the top 3 the last eight years in a row. It interesting to note, this is the first time Driver Retention has broken into the top 3 in at least the last 10 years. As the table below indicates, Drivers and Motor Carriers have different opinions when it comes to the Top 10 issues

You can obtain a copy of the report on the ATRI site at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812633

Additionally, ATRI also released An Analysis of the Operational Costs of Trucking: 2018 Update and Cost of Congestion to the Trucking Industry: 2018 Update. Traffic added nearly $74.5 billion in operational costs for truckers. The study determined that delays on the highways cost motor carriers nearly 1.2 billion hours in lost productivity, the equivalent of 425,533 commercial truck drivers sitting idle for a working year. As expected metropolitan areas are responsible for a large portion of the delays. You can obtain a copy of these reports on the ATRI site at http://atri-online.org/2018/10/18/cost-of-congestion-to-the-trucking-industry-2018-update/ and http://atri-online.org/2018/10/02/an-analysis-of-the-operational-costs-of-trucking-2018-update/

2017 Fatality Analysis Reporting System (FARS) traffic report was released by the NHTSA. The numbers show a decline in fatalities. Crash fatalities decreased in nearly every segment of the population measured except for sport utility vehicles (up 3 percent), and large trucks (up 9 percent). Large truck crashes were responsible for 4,761 deaths in 2017, compared to 4,369 in 2016. Fatalities in other vehicles involved in large-truck crashes experienced an 8.8 percent increase from 2016 (280 occupants). Large-truck occupant fatalities in multiple-vehicle crashes increased by 76 to 343 fatalities, a 28.5 percent increase from 2016. Large-truck occupant fatalities in single-vehicle crashes increased by 40 to 498 fatalities, an 8.7 percent increase from 2016. You can view the full report here at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812633

Cases

Cargo

The Central District of California retained jurisdiction over an action which was removed under the Carmack Amendment despite the fact that all defendants had not agreed to removal. Where one of the defendants had not been served the court determined that it was not required to consent. The court also held that as the plaintiff alleged that the defendants had taken possession of the freight the only claim to present was one under the Carmack Amendment. Pro-Com Products v. Kings Express LA., Inc. 2018 WL 5291928

A household goods carrier was enjoined from selling a homeowner’s goods for non-payment of freight charges when it appeared that the motor carrier had not completed delivery within the time frame required under the bill of lading. The court held that the homeowner was likely to succeed on its Carmack claim and would suffer irreparable damage if the goods were sold. Mizell v. Professional Transportation Solutions, 2018 WL 4961495

The Sixth Circuit Court of Appeals upheld a $5.9 million dollar verdict against a trucking company, concluding that the trucking company failed to give a reasonable opportunity for the shipper to declare a value for the cargo and that the terms of the bill of lading were ambiguous. The court did refuse to evaluate the damages based upon market value, giving the broker, as assignee of the shipper, only the replacement cost. Excel v. Southern Refrigerated Transport, 2018 WL 4579690

Damages must exceed 10,000 in order for the federal court to accept jurisdiction over a cargo loss. The District Court in Oregon remanded a case back to state court when the damages were less than $10,000. The court also held that FAAAA did not completely preempt the negligence claim. Raaf v. UPS Ground, 2018 WL 4609935

Auto

Punitive damages were not recoverable against a motor carrier and its driver in the Eastern District of Kentucky. The court granted the motion to dismiss concluding that running of a red light alone fails to entitle the plaintiffs to punitive damages and that because there was no cause of action for gross negligence, any punitive damages claim based on respondeat superior against the motor carrier was subject to dismissal. Miller v. Indemnity Insurance Co. of North America, 2018 WL 5023328. In a subsequent motion for reconsideration the Court again held that there was no basis for a punitive damages claim when the driver was also on the phone at the time of the accident, which was a violation of company policy. 2018 WL 5270179

The Appellate Division in New York dismissed a complaint against a motor carrier when the evidence showed that the motor carrier had properly stopped its vehicle before the plaintiff swerved to avoid the vehicle, striking another vehicle. The parties agreed that the truck stopped due to a traffic condition in front of him caused by a jackknifed tractor-trailer, and there was no evidence that his operation of his vehicle in response to that traffic condition was in any manner negligent. Bailey v. N.C. Vitrano, 2018 WL 5274332

One plaintiff was unable to sustain her claim of federal court jurisdiction arising from a truck accident. Plaintiff’s allegations as to the domicile of the defendants, which were based upon unsupported information and belief, together with the lack of facts establishing damages in excess of $75,000 resulted in dismissal of the suit. Sanchez v. Aburto, 2018 U.S. Dist. LEXIS 175804

Bus accidents can result is numerous and serious injuries. The Supreme Court in New York concluded that the company which was involved in the sale of the bus tickets to the casino, and who provided an “on bus tour guide”, bore no liability for a horrific bus accident. The Court also granted summary judgment to a trucking company that the bus driver claimed cut him off before the accident, concluding that there was insufficient evidence to support the claim. Ren Yao v. World Travel of Greater NY, 2018 N.Y. Misc. LEXIS 4369

Even when liability for a truck accident is admitted the District Court in North Dakota held that the plaintiff, this time the truck driver, was still allowed to testify concerning the facts of the loss, the fact that the defendant was intoxicated and that he was required to be extricated from the vehicle because of the release of gas and the potential for an explosion. Bowen v. Hood, 2018 WL 4934067

What came first – the chicken or the egg? The Western District of Louisiana granted summary judgment to a motor carrier and its liability insurer arising from a multi-vehicle accident which occurred in Louisiana. The court granted summary judgment on the basis that the evidence only showed that that the impact with the trailer was after the initial hit with other vehicles. Crow v. Toney 2018 WL 4572669

A motor carrier’s efforts to have a punitive damages claim dismissed failed in the Middle District of Pennsylvania. The court held that when there was a rear end hit by the tractor-trailer the plaintiff sufficiently alleged that the driver, at the time of the accident, was driving too fast for conditions, following too closely, and/or simply not paying the degree of attention the situation required all of which could support a claim for punitive damages. Hyder v Womack, 2018 WL 4604535

The Western District in Tennessee held that a motor carrier was not obligated to maintain electronic logging information when the plaintiff failed to serve a notice requiring the motor carrier to keep the records. Lee v. Horton, 2018 WL 4600303

A motor carrier who struck the plaintiff in the rear was successful in getting its expert to be allowed to testify that the impact suffered by the plaintiff was minor. The expert witness Jeremy Hoffpauir retrieved data from the BMW’s Crash Data Retrieval (CDR) system (the vehicle’s so-called “black box”). Byrd v. Allstate Property & Casualty Ins. Co., 2018 WL 469381

The Southern District of Ohio refused to allow plaintiff’s expert to opine on what the plaintiff decedent was thinking at the time of the crash but did conclude that the expert was entitled to opine of the lack of reflectivity and conspicuity of the trailer at the time of the accident. Scott v Everlast, 2018 WL 4784554

An injured party had no standing to bring a declaratory judgment action seeking coverage for someone under a trucker’s policy. The court held that when the plaintiff had not been joined to an already existing declaratory judgment action, there is no judgment against any of the insured parties, and she did not claim to be an insured party under the insurance policy at issue there was no controversy between her and the insurer to warrant a right to seek a declaration of coverage. Demers v Nova Casualty, 2018 WL 4922351

A trucker’s efforts to have various causes of action in an amended complaint dismissed, including claims for punitive damages, negligent hiring and retention failed. The Eastern District in Pennsylvania held that the claims were not time barred, even when brought after the statute of limitations ran, as they related back to initial allegations in the complaint. Sufficient facts were alleged by the plaintiff to support the claims for punitive damages and negligence at the early stage of the litigation. McMahon v. Arsenberger, 2018 WL 4855458

Over in the Northern District of Ohio the court rejected a plaintiff’s efforts to assert claims for punitive damages, negligence per se and negligent hiring. Where there were no facts alleged which supported a reasonable basis for the claims the court would not allow them to stand. Of note is the fact that an allegation that the drivers were permitted to use cell phones while driving could not be used to support a cause of action when use of a cell phone had no connection to the loss. Bonner v. Reliable Transportation Specialists, 2018 WL 4586924

The Appellate Division in New York held that a truck driver did not violate the road rule prohibiting driving on shoulders and slopes in an action seeking recovery for injuries caused to motorist after his truck collided with motorist’s left-turning vehicle as he drove through the intersection allegedly while driving on shoulders where the accident did not occur on a controlled-access highway. The lower court decision granting a liability judgment to the plaintiff was reversed. Mack v. Harley 2018 WL 4763086

Even though the defendant motor carrier and its insurer believed that the plaintiff caused a truck accident, a counter-claim for fraud was dismissed by the court in Louisiana. The court held that the defendants failed to allege any facts supporting such a claim. Plaintiff was not entitled to sanctions as plaintiff failed to comply with the procedural requirements before filing the motion. Thomas v Chambers, 2018 WL 5279122

Fraudulent joinder of a party, as a way to defeat diversity, is often difficult to establish. The District Court in Maryland rejected a shipper’s argument that it was fraudulently joined to a personal injury claim involving a trucker hired by the shipper’s broker. The court determined that adding the shipper as a party was not fraudulent. The court further held that this was a novel question – whether the shipper bears a responsibility to vet the carrier and so allowed the action to continue – defeating diversity and remanding the case back to state court. Stratton v. Nationwide Solutions, 2018 WL 4679859

A declaratory judgement that a policy did not provide coverage when the tractor was attached to a non-owned trailer was granted by default in the Northern District of Alabama. The exclusion that the insurance did not apply while the tractor was used for the towing or transporting of any trailer or semi-trailer, or while in the process of having a trailer or semi-trailer attached to or detached from it, unless such trailer or semi-trailer is owned by the insured and specifically described in the policy at time of loss was valid. Peace v. Rock, 2018 WL 4816486
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The Eastern District in Oklahoma confirmed that an insurer could not insure a motor carrier’s liability for punitive damages. The court concluded that when the motor carrier was bankrupt and the plaintiff sought relief from the stay the recovery was limited to the insurance proceeds and therefore punitive damages would not be recoverable. Nail v. Blue Donkey Transport, LLC 2018 WL 4832357

Worker’s Compensation

A driver who was injured in a tractor-trailer accident lost his claim for bad faith against his insurance carrier. The District Court in Arizona held that the damages alleged for bad faith denial all stem from Defendant’s alleged failure to authorize neuropsychological testing and/or treatment. As the plaintiff never sought review of the ALJ Award that adversely resolved the issue of Plaintiff’s entitlement to these continuing benefits there could be no claim for bad faith. Higgins v XL Insurance America, Inc. 2018 WL 4698649

The 8th Circuit Court of Appeals upheld the dismissal of a tort action by a co-driver against the operator of the truck. The court held that the plaintiff, while still a trainee, was a dual employee and therefore subject to the exclusive remedy of worker’s compensation. Quiles v. Johnson, 2018 U.S. App. LEXIS 28747

In the time between training and final sign on as a driver a plaintiff was fatally injured in a truck accident while being driven to get his final documents in place. The District Court of Massachusetts held that the motor carrier was subject to jurisdiction in the state where the plaintiff lived, concluding that the motor carrier had sufficient contacts during the solicitation period to warrant jurisdiction. Moura v. New Prime, Inc., 2018 U.S. Dist. LEXIS 173276

An owner operator’s efforts to seek worker’s compensation benefits failed in the Commonwealth Court in Pa. The court concluded that the plaintiff was an independent contractor and not an employee when acting as a owner operator under lease to a motor carrier. There was no evidence of supervision by the motor carrier and revenue was a split of the percentage. Baykhanov v. Worker’s Comp. Appeal Bd, Onixe Express, 2018 PA. Commw. Unpub LEXIS 554

When a plaintiff and a motor carrier joined together to pursue the motor carrier’s insurer for failure to settle within policy limits, the Eastern District of Michigan refused to allow the insurer to obtain a copy of the joint defense agreement, Wausau Underwriters Insurance Co. v. Reliable Transportation Specialists, 2018 WL 5078376. In a separate opinion in the same case the court denied the insurer’s motion that it had not acted in good faith, concluding that there were questions of fact as to whether it should have settled within the policy limits and also acknowledged that Michigan law limited the recovery against the insurer to the amount that the plaintiff would have been able to recover from the motor carrier if the insurer was not on the hook. 2018 WL 5077149

The Northern District of Mississippi denied a truck broker’s motion to dismiss a negligent entrustment and negligent hiring claim arising from a truck accident. The broker’s argument that the claims are preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) was rejected. Finley v. Dyer, 2018 WL 5284616

The court of appeals in Washington held that the DOT was not subject to a claim for contributory negligence arising from a truck accident. The DOT had failed a suit against a trucking company who damaged a bridge and the motor carrier claimed that the loss was caused, in part, by the negligence of the DOT. The Court held that a state statute precluded any finding of comparative fault on behalf of the State, and that the motorist liability statutes controlled over general proportionate liability statute. State of  Washington v. Mullen Trucking, 2018 WL 5133492

The Supreme Court in New Hampshire upheld the decision of the New Hampshire Compensation Appeal Board awarding temporary total disability and medical benefits, finding that, as a result of repeated exiting of the cab in a certain manner was an injury that resulted from a “mixed risk,” that the employment was “a substantial contributing factor” to the injury which was not preexisting. Appeal of Associated Grocers of New England, 2018 WL 5020121

The Supreme Court in Tennessee held that a truck driver, whose employer had no workers’ compensation insurance coverage, was not entitled to recovery from the vehicle manufacturer by asserting that the manufacturer was the truck driver’s statutory employer under Tennessee Code Annotated section 50-6-113 (2014 & Supp. 2017). The upheld the grant of summary judgment, holding that the truck driver failed to establish that the manufacturer undertook work for an entity other than itself, retained the right of control over the conduct of the work, or that the truck driver’s conduct in tarping the load was part of the manufacturer’s regular business or the same type of work usually performed by its employees. Osborne v. Starrun 2018 WL 5292264

Thanks for joining us,

Jean & Chad