For a short month this is a fairly long report. After the holidays, and the January ramp up it seems like everyone is hard at work trying to get things done before the next holiday season. There was a lot of news and the Courts were quite prolific this month. We have many cases to report, including a decision in a tow case and one on a broker bond. We have reported them separately so they are not missed by one group or the other.
This month we report:
ANTI-INDEMNITY LAWS – Over the years we have reported on the efforts to limit clauses in trucking contracts which allow for unlimited indemnity. Rhode Island is once again trying to gets a law passed. A bill has been introduced which prohibits indemnification clauses in trucking contracts when the shipper is negligent. 45 states have already acted to prohibit these provisions. Delaware, Mississippi, New Hampshire and Vermont continue to allow these provisions.
ELD RULES – The subject of ELDs continues to be contentious as groups seek exemptions and roll backs before the April 1 target date. 4 states, South Dakota, Missouri, Tennessee and Idaho have introduced proposals which impact enforcement of ELD, some asking for repeal of the mandate. Some are proposing not funding inspections for ELD violations and/or instructing officers not to transmit violation data to the DOT.
DRIVER DETENTION – The DOT has released a study that concludes that driver detention costs more than $1 billion a year and creates a safety issue. A 15-minute increase in average down time increases the average expected crash rate by 6.2 percent which could translate into the possibility of 6,500 more crashes. Detention results in fatigue. A copy of the Inspector General Report can be viewed here.
CARGO THEFT – CargoNet reported that 2017 was one of the safer years, with only 741 reported cargo thefts, with an average value loss of $196,109. They also report 1,479 stolen tractors, trailers or intermodal chassis and containers. Food and beverages continue to be the most commonly stolen products. Unattended cargo over the weekend was, as you would expect, a common occurrence.
CRASH PREVENTABILITY PROGRAM – As you may recall from earlier Bits and Pieces, the FMCSA has implemented a program to help determine if certain crashes were preventable. 2500 submissions have been made, but the program has run into some problems. Apparently users are not selecting the appropriate categories when filing the DataQ. The DOT has provided some additional guidance that you may wish to pass along to your motor carrier if they are trying to have a crash evaluated. You can direct them to this Federal Register link.
TOUGH JOB – Truck driver is a tough job to fill, according to CareerCast’s 2018 Toughest Jobs to Fill report. It reports that a truck drivers’ annual median salary as $41,340 with a growth outlook of 6%. By 2026, there will be an additional 108,400 positions available. This report supports the industry concern for the growing driver shortage.
NTSB GUIDANCE – The NTSB released its report and recommendations following a March 2016 accident involving a cargo tank vehicle loaded with propane. The investigation discovered issues with loading of the cargo tank, Inspection and testing of the tank, and qualification and training of cargo tank inspectors. The agency issued six safety recommendations to the FMCSA and the Pipeline and Hazardous Materials Safety Administration (PHMSA). The FMSCA was told to consider whether to enhance enforcement of cargo tank requalification procedure, and was instructed to work with the PHMS to incorporate, by reference into the Hazardous Materials Regulations, inspector training requirements of industry cargo tank inspection code. The PHMSA was told to consider elimination of a grandfather provision for less qualified inspectors, revision of the definition of registered inspector and ensure that all persons certified to inspect cargo tanks are qualified and competent, and to implement regulations that provide for suspension and revocation of cargo tank inspector registrations. You can view the report here.
CASES:
AUTO:
Including the motor carrier in a declaratory judgment on the applicability of the MCS-90 will not defeat the insurer’s right to remove the case to federal court. The Southern District of Virginia held that the motor carrier was a nominally and fraudulently joined party and refused to remand the case back to state court. (Lyles v. FTL, Ltd, 2018 WL762467)
The Graves Amendment was held inapplicable to causes of action asserted against the owner of a vehicle leased to a motor carrier which was involved in an accident. The Court held that as the suit alleged that the driver was the agent, servant or employer of the owner the Graves Amendment did not permit dismissal of the cause of action. Moreover when there was a close relationship between the owner of the vehicle and the motor carrier there was sufficient evidence to support a claim that it was an alter ego of the carrier. The Court also refused to dismiss a punitive damages claim against the driver. (Parker v. Miller, 2018 WL 898981)
For all of you contingent auto insurers out this is a big win! The Northern District of Illinois held that FAAAA preempts claims against a truck broker for negligent hiring of a motor carrier. (Volkova v. CH Robinson, 2018 WL 741441)
In the Middle District of Georgia the court held that it would not dismiss the action against Fed Ex under the Rooker-Feldman doctrine which prohibits re-litigation of a case already addressed in state court. The court held that the state court’s dismissal of a suit for lack of personal jurisdiction was not a final state court judgment triggering the applicable of the doctrine. Discovery on the issue of jurisdiction was permitted to proceed. (Glass v. Fed Ex., 2018 WL 813594)
Interesting issues were addressed by the court following the trial on a multi truck accident. The Seventh Circuit upheld a jury verdict involving claims by plaintiff and defendant against each other, as well as a claim by the plaintiff’s son, who tried to rescue his father after the accident. The Court upheld the trial court’s jury instructions, also concluding that the percentage of liability of the plaintiff for his own injuries could not be used by the defendant to limit the recovery of the rescuer son. (Karahodzic v. JBS Carriers, 2018 WL 741698)
The Northern District in Indiana refused to dismiss a plaintiff’s complaint against a truck driver and his employer despite excessive delays in serving the parties or pursuing the litigation. The court held that while the plaintiff’s explanation for the delays was lame “the defendants’ assertion that they have been unduly (maybe even fatally) prejudiced by the 10-month delay was overly dramatic.” (Smith v Cunningham, 2018 WL 903986)
The Eastern District of Missouri held that there was no jurisdiction over an injured party in a declaratory judgment filed by an insurer under a trucker’s policy. The injured party claimed that the vehicle limit of $1,000,000 was inapplicable contending that the all vehicle limit of $21,000,000 was the relevant limit. As the injured plaintiffs were dismissed the court held the insurer needed to show how there was a case in controversy for the court to address when no one else was making such a claim. (Acuity v. Rex, LLC, 2018 WL 731775)
A claim for punitive damages remains on the table in the Middle District of Pennsylvania when the evidence indicated that the driver knowingly operated the vehicle in a fatigued state. While the direct claim for punitive damages was dismissed against the trucking company as there was no evidence of facts to support a direct claim, the court held the trucking company could still be vicariously liable for the punitive damages (Delamarter v. Couglar, 2018 WL 950201)
A NTL insurer was granted summary judgment when there was no question but that the driver was operating under dispatch to the motor carrier. The Western District of Pennsylvania pulled the plug on the suit. (First Guard Ins. Co. v. Bloom Servs., 2018 US Dist LEXIS 25608)
The trial battle has begun in a truck accident case in Northern District of West Virginia as the parties thrust and parry over motions in limine regarding the admissibility of evidence to be used at trial. While the court basically punted, deferring all decisions depending upon what the parties wind up doing at trial, it did conclude that the motor carrier’s expert, Stanley Putz, could testify regarding load securement and federal safety regulations. (Fielder v. R.V. Coleman, 2018 WL 606033)
Over in New Mexico the District Court did not punt on evaluation of expert testimony. The court ruled that plaintiff’s expert Shawn Wayne Miller, could not testify on distracted driving fatigue, spike in crash data, drug and alcohol testing and the cause of the loss, reserving only the issue of whether his testimony would be admissible on training and adherence to regulations on driving in certain weather conditions. (Yazzie v. Fezette, 2018 WL Dist. LEXIS 25550)
The Eastern District in Missouri denied a motion to dismiss various causes of action against a motor carrier arising from a truck accident. The motor carrier was not seeking dismissal of the vicarious liability claim. The court held that the plaintiff alleged facts to support causes of action for negligent hiring/retention, negligent training and negligent entrustment. The motor carrier also sought to dismiss the complaint because it was based upon boilerplate allegations. The court denied that noting that it was common knowledge that standard form pleadings are used by cost conscious attorneys. (Hejnal v. US Express, 2018 WL 534376)
In the Northern District of Oklahoma the court held that a motor carrier could be sued for negligent entrustment even when it admitted vicarious liability for the actions of the driver. The court held that there was evidence that the motor carrier knew of the many violations that the driver had before the loss. (Walling v. CRST Malone, 2018 WL 736039)
The Eastern District of Missouri rules that a trucking company could not aggregate damages in alternatively pled causes of action to meet the monetary requirements for removal based on diversity. The court gave the defendant a short window to come up with evidence to show that the damages alleged were more than $75,000. (Hughes v. Transwood, 2018 WL 926131)
The Supreme Court of Illinois denied a trucker’s efforts to bring a settling defendant back into a case under a contribution theory. The court held that the lower court did not abuse its discretion in granting a “good faith settlement” motion concluding that the court did not have to consider the rights of the non-settling party when evaluating the settlement. (Antonicelli v. Rodriguez, 2018 IL 121943)
The Appellate Division in New Jersey denied a plaintiff’s motion for JNOV when a trucking company and its driver were successful in defeating a claim for damages caused by a rear end collision. The Court held that the jury could have reasonably concluded that following closely was not a cause of the accident and that driving too many hours or with too little sleep, or by discarding her logbook were not a substantial factor in causing the accident. (McCormack v. Dunne, 2018 WL 827903)
The 11th Circuit held that an “LLC limitation” on who was an insured under the umbrella policy issued to the trailer owner was applicable and excluded coverage for the truck company and its driver who were pulling the trailer at the time of the accident. It was interesting that the court focused on whether the placement of the limitation in the section made it applicable to the whole section or only the preceding paragraph, concluding it applied to the entire section. (Gemini Insurance Co v. Castro, 2018 WL 526990)
Is there always a rebuttable presumption of negligence when there is a rear-end hit? The Western District of New York concluded yes in a personal injury action when a tractor-trailer hit a slow moving bus on a major highway. The fact that the bus may have been going very slow did not defeat the rear end rule However the court held that as there was sufficient evidence presented which might rebut the presumption of negligence it would deny summary judgment to the bus company. (Hume v. Farr’s Coach Lines Limited, 2018 WL 732784)
The plaintiff was not permitted to amend its complaint to allege a punitive damage claim against a motor a carrier even when evidence indicated that the tractor-trailer was given numerous maintenance violations in a post-accident inspection, some of which may have contributed to the crash. While the court held that the information discovered might tend to show negligence there was insufficient evidence to show the disregard of these maintenance issues would support a claim for punitive damages and denied the motion. (Giesler v. Hirchert, 2018 WL 671206)
A motor carrier was successful in defeating direct negligent hiring claims when it conceded vicarious liability for the actions of the driver. The Northern District of Mississippi held that allowing such causes of action to proceed were not permitted under Mississippi law. (Pennington v. UPS, 2018 WL 847249)
The Court of Appeals in New Mexico upheld a verdict of $165,000 million against Fed Ex Ground Package following a fatal accident. The court held that it would not apply a mathematical formula to determine the appropriateness of damages, would not review decisions in similar cases and that the trial Court did not abuse its discretion in affording prejudgment interest. (Morga v. FedEx Ground, 2018 WL 797539)
Five years after an accident occurred the Court of Appeals in Tennessee reversed and remanded an action to the lower court, allowing the co-defendant and the plaintiff to continue to pursue a trucking company and an unnamed driver for their comparative fault in an accident, The court held that the parties would be given a reasonable period of time in which to conduct discovery to determine the identity of the driver. (Santore v Stevenson 2018 WL 1003581)
In a personal injury for fatal damages suffered following a truck accident the Western District of Missouri refused to dismiss an affirmative defense that punitive damages were unconstitutional under Missouri law but did dismiss an affirmative defense that sought apportionment of damages against non-parties. The Court held that Missouri prohibited consideration of the liability of non-parties. Woodcock v Fed Ex., 2018 WL 934900
TOW:
And the tow fight is on. A trucking company has brought suit against a tow company for excessive charges following a truck accident. The tow company’s motion to dismiss the complaint was partially denied. The court held that the trucking company stated a claim upon which relief could be granted with regard to its fraud and unjust enrichment claims, but did not state a claim for relief for economic duress or punitive damages. (Landair Transport v, Del’s Truck & Auto Repair, 2018 WL 950208)
CARGO:
Can a defendant tortfeasor seek contribution from a trucking company who is otherwise liable to the cargo owner under the Carmack Amendment? The District Court in Nebraska held that the motor carrier would be required to stay in the case for the contribution claim. The court also denied summary judgment to everyone on their respective liabilities for the loss, granting summary judgment only on the issue of negligence per se, concluding that Nebraska did not allow for negligence per se simply based upon violation of a federal safety regulation. (Certain Underwriters at Lloyds v. Southern Pride, 2018 WL 637391)
A motor carrier who filed a declaratory judgment as to its liability for a cargo loss sought to dismiss counter-claims for indemnity by the defendant. The District Court in Connecticut denied plaintiff’s motion concluding that when there was insufficient evidence to determine the status of the defendant the Court was unable to determine if the Carmack Amendment or COGSA governed the liabilities of the parties and denied the motion. (Anderson Trucking Company v Eagle Underwriting Group, 2018 WL 564569)
The Superior Court in Pennsylvania upheld a grant of summary judgment in favor of a cargo insurer on the basis that transit ended when the motor carrier held the cargo for more than 72 hours while it repaired the vehicle. There was sufficient evidence presented that the cargo was seen after the 72 period ended and therefore was stolen after “transit” ended. (Naro Enterprises v Great American Insurance Co., 2018 WL 947707)
The District Court in Massachusetts denied a broker’s efforts to dismiss a Carmack Action against it. For the purposes of the motion the court held that the plaintiff had sufficiently pled that the broker was acting as a carrier. The court also refused to dismiss the state law claims against the broker pending further evaluation of the facts. (Richwell Group v. Seneca Logistics, 2018 WL 988060)
What law governs when an international air shipment is damaged during the truck portion of the shipment? The 11th Circuit concluded that the provisions of the Montreal Convention did not apply and that the provisions of the waybill would govern. The court held that when the place of the damage is known and the substitution provisions of the Montreal Convention are inapplicable, the parties needed to look to the waybill to determine liability. As the waybill was ambiguous on whether the limitation applied to the weight of the damaged item, or the weight of the entire shipment the court sent the case back to determine the industry standard as to how it would be applied. (Underwriters at Lloyds v Expeditors Korea, Ltd., 201Auto 8 WL 914780)
Preemption continues….The Northern District of Illinois rejected a plaintiff’s attempt to argue that invoicing freight charges for a shipment which was damaged somehow gave rise to a cause of action not preempted by the Carmack Amendment. The cause of action for fraud and consumer fraud was dismissed. (ABT Electronics v. Airgroup, 2018 WL 905504)
How many times can they amend? The Northern District of Illinois permitted a plaintiff to amend its complaint for a third time, despite recognizing the possibility of preemption. Plaintiff continued to allege causes of action under ICCTA and violations of FMCSR’s. (Starr Indemnity & Liability Co. v. YRC, 2018 WL 905523)
It is important to make sure that any settlement offer indicates that it is intended as a full and final settlement. The Eastern District of North Carolina held that a motor carrier was not entitled to the defense of accord and satisfaction based upon a payment to the plaintiff when it was not clearly a final settlement. The court further concluded that the motor carrier was given substantial notice of additional damages and could not rely on the nine month claim filing requirement for those additional damages. Finally the court held that the motor carrier had not properly limited its liability when then the preprinted .60 cents a pound limitation was not printed exactly on the required line and therefore may have led to misunderstanding by the cargo owner. (Chapman v. Allied Van Lines, 2018 WL701627)
TRUCK BROKER BOND:
We don’t see many suits on truck broker bonds. The District Court in Oregon addressed what is needed to establish a right to recover under the bond, giving one party all of the money and rejecting other carrier claims when they failed to properly establish their right, as a motor or shipper, to collect under the bond. (Transport Financial Services, LLC v. Solaris Transport, LLC, 2018 WL 664804)
WORKER’S COMPENSATION:
An employee’s effort to seek recovery of fees paid for expert preparation for a worker’s compensation claim failed in Tennessee. The Supreme Court of Tennessee held that the fees incurred by the truck driver were not compensable as a discretionary cost. (Garassino v. Western Express, 2018 WL 784766)
The estate of a truck driver who was killed while on the job at an oil well was not prevented from pursuing the owners and operators of the oil well for his injuries. The Supreme Court in Oklahoma held that a provision of the Oklahoma Worker’s Compensation Act which granted them immunity from suit was unconstitutional. (Strickland v. Stephens Production Company, 2018 WL 525744)
A driver’s efforts to seek recovery under an OccAcc policy failed in Florida when it was determined that he never qualified under the independent truckers policy. The Middle District of Florida held that insurer was not prevented from relying on the fact that the driver was never covered as a contract driver or owner-operator despite having issued a COI. The court held that the driver had not raised waiver, estoppel or other affirmative grounds and also concluded that coverage cannot be created by waiver or estoppel. (Atlantic Specialty Ins. Co. v. Pastukov, 2018 US Dist. LEXIS 12969)
Despite an insurer’s repeated failure to timely file a claim against a tortfeasor for worker’s compensation payments it made to an injured truck driver, the District of Nevada concluded that California public policy did not allow the employee to reap the benefit of that delay. Public policy dictated that the insurer be permitted to lien on the proceeds of settlement monies the driver received from the government. (Rodriguez v. US, 2018 WL 702686)
Whew! That was a lot to digest. See you next month.
