CAB Bits & Pieces November 2018
Good day CAB Nation!
We here at CAB hope everyone has had a great Thanksgiving. As a family orientated company, we know Thanksgiving provides an opportunity to recharge our batteries and reconnect with family and friends. Now the joy (and hustle & bustle) of the Holiday Season can begin!
Dominique Dube, our Director of Business Development, has taken the reigns of our social media pages, specifically LinkedIn and Facebook. Our goal is to use these platforms to communicate information relevant to the industry and to share what’s new within our CAB Tools and Resources. We invite you to click the links below to follow our pages and join in the conversation.
CAB’s Tips & Tricks: 
This month we’re focusing on CAB List. CAB List can be accessed by clicking the Tools tab (red arrow) via the main navigation bar.
By adding Motor Carriers to the CAB List via Bulk Upload (green arrow), by clicking the star in search results or within the CAB report you can evaluate and dig deeper to better understand the motor carriers you’re working with.
Once your desired Motor Carriers are loaded, you can group motor carriers by any criteria you prefer. Some examples might be: Industry Segment, Agency, Insurance Carrier, Prospects, Region, etc. You can then Analyze Your List (orange arrow) via group, filter criteria or the like. Additionally, you can subscribe to Alerts (blue arrow) that will notify you via email when one of your motor carriers reaches a category threshold for BASICs, ISS, Inactive Carrier, Out of Service and Safety Rating.
We at CAB are constantly striving to improve our tools and resources to create value for our subscribers. Please feel free to contact us directly if you have any suggestions as to how we can enhance our services. We are a customer driven company and our goal is to help you Make Better Decisions!
This month we report:
The Toughest States for Hours of Service Violations: Arkansas leads the rest of the country for the 4th year in a row when it comes to the percentage of Hours of Service (HOS) Violations issued. The ranking is determined by the number of HOS violations in each state figured as a percentage of that state’s overall violation totals. The percentages are based off 2017 federal data. The ELD mandate took effect December 18, 2017. It will be interesting to see how these rankings shake out after a full year of ELD implementation data is calculated.
FMCSA Issues Personal Conveyance Guidance: Personal conveyance is the movement of a Commercial Motor Vehicle (CMV) for personal use while off duty. Recent updates to the rules governing personal conveyance have created confusion and the FMCSA has responded by providing this guidance. It is important to note that a laden vehicle can be used for personal conveyance assuming it is not being transported for the commercial benefit of the motor carrier at that time. Regardless of the circumstances, personal conveyance does not alleviate the driver or motor carriers responsibility to operate the CMV in a safe manner.
Women in Trucking: WIT held their annual conference earlier this month in Texas. There were over 800 attendees from 6 countries. This was the 4th year for the conference and it grew by 300 attendees from the previous year. It was reported that only 7% of truck drivers in the industry are women. Research by Emilie Worsham, notes that men were 88% more likely than women to have a reckless driving conviction. With a projected shortage of 50,000 drivers, this creates an opportunity to reach out to this mostly untapped driver source. It was noted that turnover of women drivers is also less than men.
Nearly 5000 Commercial Motor Vehicles Put out of Service: During Brake Safety Week, Sept. 16-22, 2018, enforcement personnel conducted 35,000 inspections. Whereas the vast majority of inspections found no brake issues, 14.1 percent were found to have critical violations. Brake Safety Week also captured data related to antilock braking systems (ABS). To review the ABS data and the complete CVSA Press release, click here.
Civil Penalties Inflation Adjustment: In accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, this final rule provides the 2018 inflation adjustment to civil penalty amounts that may be imposed for violations of certain DOT regulations. This rule also finalizes the National Highway Traffic Safety Administration’s and the Office of the Secretary’s catch-up inflation adjustment interim final rules required by the same Act. View PDF
BLS Data on Employer-Reported Non-Fatal Workplace Injuries & Illnesses Released: Based on OSHA’s Survey of Occupational Injuries and Illnesses, the BLS reports private industry reported nearly 45,800 fewer nonfatal injuries and illness cases in 2017 compared to 2016. Almost one-third of nonfatal occupational injuries resulted in days away from work and the median days away from work remained at 8. Of note, transportation and material moving workers incurred 12,750 days away from work cases in 2017. This is a roughly a 25% increase from 2016. View BLS Press Release 
Thanksgiving Cargo Trends: The graphic below details the top targeted states, locations and commodities for stolen cargo over the Thanksgiving weekend. This is due to large amounts of unattended and highly valued cargo during the long holiday weekend. Interesting to note that the thefts we’re highest on Wednesday as that’s when the trucks are parked and drivers don’t return to them until after the holiday. This is a reminder for the trucking industry to stay vigilant to ensure all reasonable steps are taken to protect cargo from theft. 
Auto
More and more cases are concluding that claims for personal injury arising from falling cargo are preempted by the Carmack Amendment. The District Court in Nebraska concluded that an entity that provided transportation and related services was still a motor carrier during the unloading process and therefore entitled to the preemptive effect of the amendment, dismissing the personal injury action against the defendant. Fergin v. Ace American Insurance Co, 2018 WL 5810496
CH Robinson was successful in beating back a personal injury action in the District Court in Nevada. The court held that the plaintiff’s common law negligence claim sufficiently related to the service CH Robinson provided as a freight broker, and was preempted under 49 U.S.C. § 14501(c)(1), and not subject to the exception to preemption under § 14501(c)(2)(A). Miller v. C.H. Robinson Worldwide, Inc., 2018 WL 5981840
The Northern District of Ohio remanded a personal injury action back to state court. The Court held that the defendant’s removal of this case from state court to federal court was improper when the tractor-trailer owner was a citizen of the state where the action was commenced. The court held that the joinder of the tractor-trailer owner was not fraudulent even when the motor carrier was also a named party. Hassan v. URS Midwest, Inc., 2018 WL 6064869.
When there was a multiple vehicle accident the court in the Western District of Oklahoma had to consider whether there was more than one occurrence so as to trigger additional limits. The court determined that based upon the facts of the loss there were two accidents. With a policy which applied a limit per accident, two limits were available for settlement of multiple claims. National Casualty Company v. Western Express, 2018 WL 6059388
The 5th Circuit Court of Appeals also considered the question of multiple occurrences arising from a truck accident. The court held that under Texas law, continuous negligence of driver of a runaway truck was the single proximate, uninterrupted, and continuing cause of all collisions, resulting in one limit for the primary insurer. The excess insurer was not entitled to reimbursement of payments made above the policy limits. Evanston Insurance Co. v. Mid-Continent Casualty Co., 2018 WL 6037507
Despite efforts to avoid a deposition the District Court in Connecticut denied, in part, a motion for a protective order when there were issues on the ownership of a tractor trailer. The Court held that the deposition of the CEO would be permitted to discuss any knowledge he may have regarding ownership of the relevant tractor trailer and his relationship with other companies who might own the vehicle. Jones v. Marcu, 2018 WL 6011864
A claim for punitive damages was successful in withstanding a motion to dismiss in the Middle District of Pennsylvania. The court held that the plaintiff filed a well pled complaint and that allegations that the tractor-trailer was operated in an unsafe manner in the face of warnings of severe weather could give rise to punitive damages. Ehrenberg v. Lisk Trucking, Inc, 2018 U.S. Dist LEXIS 192287
Self-insured motor carriers are not required to obtain uninsured motorist coverage for drivers. The Western District in Wisconsin agreed that the motor carrier was not required under federal law to provide UM coverage and that the Wisconsin law requiring uninsured motorist coverage did not apply to self-insured entities. The court further held that there was nothing in the owner operator agreement which required the motor carrier to provide the coverage. Roehl Transport, Inc. v. Morrison, 2018 WL 5840716
The District Court in Minnesota determined that an insurer was not obligated to defend and indemnify a motor carrier when the vehicle was not on the policy but there was an MCS-90 on the policy. The court held that theMCS-90 endorsement should not be construed to provide primary insurance coverage to motor carriers. Where there was other adequate coverage, the purpose of the MCS-90 was not implicated and the MCS-90 endorsement would not operate to amend a policy. United Financial Casualty Co. v. Bountiful Trucking, 2018 WL 5921010
A motor carrier was successful in getting partial summary judgment on damage issues in the District Court in Arizona. When the plaintiff failed to timely disclose her medical providers she was prohibited from offering opinion testimony from those providers. Ultimately without that testimony was plaintiff was unable to establish a claim for future medical treatment, lost earning capacity and lost future income. Garrett v. Woodle, 2018 WL 6110924
Over in Pennsylvania the court held that a plaintiff was entitled to submit a supplemental medical report even when done outside the scheduling order. The Western District of Pennsylvania held that it was not prejudicial to the motor carrier to have the report submitted at a later date. Abed-Rabuh v. Hoobrajh, 2018 U.S. Dist.. LEXIS 187027
A default judgment for $5,886,540 rendered against a driver was vacated by the Court of Appeals in Ohio. Under the facts and circumstances of that case the court determined that there was insufficient evidence that the driver was given notice of the default. Tomcho v. ALTL, Inc., 2018 WL 6012590
The Middle District of Pennsylvania denied a plaintiff’s request for a new trial following a defense verdict in favor of the motor carrier. While the plaintiff raised a multitude of reasons why he believed the verdict was against the weight of evidence the court held otherwise. Botey v. Green, 2018 WL 5985694
A defense verdict in favor of a motor carrier was upheld in the 11th Circuit. The plaintiff sought to file a second action against the trucking company, his insurer, defense counsel and the court, alleging violation of constitutional rights. The court disagreed and dismissed the action. Williams v. Brooks Trucking Co., Inc. of Memphis, 2018 WL 5920404
Cargo
Are state law negligence claims against a motor carrier preempted under FAAAA? The Middle District of Florida determined that it was not completely preempted and removal was not proper. The court remanded the case back to the state court and ordered the motor carrier to pay the plaintiff’s fees. Hentz v. Kimball Transportation, 2018 WL 5961732
The Eastern District in Missouri entered a default judgment against a household goods carrier who was wrongfully withholding the plaintiffs’ property. The court held that the motor carrier violated the Carmack Amendment in failing to timely deliver the property and converted the property. Plaintiff was given a permanent injunction and a default judgment. Mizell v. Professional Transportation Solutions, Inc. 2018 WL 6064863
Worker’s Compensation
Quiet month – no cases
Thanks for joining us,
Jean & Chad
