Bits & Pieces

Volume 21, Edition 3


Happy March!

Spring is in the air (it is just a little muffled by the snow down here on the Jersey shore). It is the start of the conference season and we are looking forward to catching up with many of you! I will be at the TIDA cargo session the first week of April and BMUSF in May – hope we get to catch up. Registration for the annual IMUA meeting is open. Tiana and I will be there. A good time is always had by all and we learn a lot about new issues in the industry. Come along and bring a pal – check www.imua.org for more information.
This month we report:

ELD NEWS. The time has come! April 1, 2018 starts the actual enforcement of the ELD mandate. Out of Service orders and CSA violation points will begin being issued. The driver in violation will remain out-of-service for 10 hours in accordance with Commercial Vehicle Safety Alliance criteria. Drivers then be allowed to travel to the next scheduled stop and are not allowed to be dispatched again without an ELD. If the driver is dispatched again without an ELD, the motor carrier will be subject to further enforcement action. The FMCSA will also extend by 90 days a waiver for agricultural commodities and livestock haulers to comply with the electronic logging device mandate. Eligible motor carriers to handle agricultural commodities as defined under 49 CFR 395.2.

CVSA. The CVSA International Roadcheck will take place June 5-7. This year’s focus is on hours-of-service (HOS) compliance. Inspectors will primarily conduct the North American Standard Level 1 Inspection, which is a 37-step procedure that includes an examination of both driver operating requirements and vehicle mechanical fitness. The vehicle inspection includes checking brake systems, cargo securement, coupling devices, driveline/driveshaft components, exhaust systems, frames, fuel systems, lighting devices, steering mechanisms, suspensions, tires, van and open-top trailer bodies, wheels, rims and hubs, and windshield wipers. Additional items for buses include emergency exits, electrical cables and systems in the engine and battery compartments, and seating. Drivers are asked to provide their operating credentials and hours-of-service documentation, and will be checked for seat belt usage. Inspectors will also be attentive to apparent alcohol and/or drug impairment.

AUTONOMOUS VEHICLES. As we are all aware, autonomous vehicles have been back in the news with the recent vehicular accident. Uber Freight is temporarily suspending its autonomous vehicle operations — including Uber Freight. The Pipeline and Hazardous Materials Safety Administration has requested information on the use of automated technologies in the transportation of hazardous materials as it looks forward to introducing regulations permitting the project to move forward. The request for comments is meant to gather insight from industry experts and public organizations on how to best ensure these regulations consider automated vehicles in the transportation of hazardous materials.

TOW NIGHTMARES. We all know about the nightmare bills that we see with tow bills. The ATA recently completed a survey of truckers and concluded that there are reports of “outrageous overcharging” for non-consensual towing of damaged heavy-duty trucks and trailers removed from crash scenes are on the rise in some states. Non-consensual towing generally occurs when a police officer on the site of a crash contacts a towing company, often from a rotation list, to clear the roadway of damaged vehicles, trailers and even cargo. The ATA reports notes that fees for a tow can hit $50,000, although we note that the numbers are often much higher. Only 10 states have enacted legislation addressing non-consensual tows.

DRIVER SHORTAGE. The Developing Responsible Individuals for a Vibrant Economy, or DRIVE-Safe Act, was introduced in the House which might allow drivers ages 18 to 21 to driver motor vehicles. The bill proposes a two-step program for prospective young drivers to complete once they obtain a commercial driver license. The drivers would be required to log 400 hours of on-duty time and 240 hours of driving time with a licensed carrier. On the other hand the ATA’s Trucking Activity Report, states that the annualized turnover rate at large truckload fleets – those with more than $30 million in revenue – fell seven points to 88% in the fourth quarter. Turnover at small truckload fleets fell four points to 80%.. Overall the turnover rate was still 14 points higher than a year earlier.

Current Cases

Reefer breakdown coverage under an industry standard motor truck cargo form was the subject of a coverage action in the District Court in Oregon. Although the court ultimately held that neither party was entitled to summary judgment the decision details the issues which must be addressed when evaluating the refrigeration breakdown coverage and the requirement for maintenance records. A must read for our cargo people. New Hampshire Insurance Co. v. D.M. Freight Services, Inc. 2018 WL1095553

Walk like a duck, talk like a duck, are you a duck? The 11th Circuit reversed a trial court decision that the defendant was liable as a carrier for a cargo loss when it brokered the shipment to a different motor carrier. The court held that there was a question of fact as to whether the defendant assumed liability as a carrier which made summary judgment inappropriate The court also held that the limitation of liability that that the downstream carrier had with the broker was enforceable against the shipper. As the broker carrier agreement referred to the bill of lading, which had a $1.00 per pound limitation, that was the maximum amount the shipper could recover from the downstream carrier. Essex Insurance Co. v. Barrett Moving & Storage, 2018 WL 1407067

Who is responsible for fraud when a shipment disappears after rerouting by an imposter? The Southern District in California held that there was a question of fact as to whether the defendant would be considered a carrier and whether it was subject to liability under the Carmack Amendment. The court dismissed the complaint but granted the plaintiff an opportunity to allege a claim under the Carmack Amendment, as well as a possible claim for an exception to Carmack on the theory that the loss involved an international shipment under a through bill of lading. Meadowgate Technologies v. Fiasco Enterprises, Inc., 2018 WL 1400678

The District Court in Maryland refused to permit a plaintiff to amend a complaint to allege a cause of action against a truck driver and an alter ego company when the statute of limitations had run. The court held that the plaintiff failed to show that the proposed defendants ever knew that they were going to be brought into the action and so the court would not allow the complaint to relate back to the original filing date. White v Date Trucking, 2018 WL 999963

Simply driving a truck at 70 mph and hitting someone does not give rise to a claim for punitive damages. The Western District of Pennsylvania dismissed a plaintiff’s claim for punitive damages against a truck driver when there were insufficient factual allegations in the complaint to support such a claim. Elmi v. Kornilenko, 2018 WL 1157996

When the insurer is still pursuing an appeal of the decision in an underlying action the injured plaintiff is not permitted to pursue its bad faith claim against the trucker’s insurer. The Magistrate in the District Court in Colorado recommended dismissal of the suit. Kuzava v. United Fire & Casualty, 2018 WL 1152266

A truck driver who was hauling jet fuel at the time he was struck by another motor carrier lost his claim for lost earnings against the motor carrier. While the driver claimed that he was no longer able to transport hazardous materials, and had to take a job hauling other freight, the Western District of Oklahoma held that plaintiff failed to establish a compensable claim for recovery. Provo v. Bolt Express, 2018 WL1096860.

Oklahoma law does not allow for additional causes of action against a trucking company when it has already accepted vicarious liability for the actions of the driver. The District in Oklahoma dismissed those additional causes of action against the trucking company, but did allow a claim for punitive damages to continue. Bales v Green, 2018 WL 1144980

Is a trucking company liable for an accident when the pilot car struck another vehicle? The Eastern District of Louisiana held that there were questions of fact as to whether the motor carrier controlled the actions of the pilot car and denied the motor carrier’s request for summary judgment. Duplantis v Cochran, 2018 WL 1172955

Over in California the court affirmed the denial of a motion for a JNOV when the trial resulted in a defense verdict in favor of the trucking company. Unfortunately the Fourth District of California did allow for a new trial on the issue of negligence and accepted the trial court’s evaluation that the jury should clearly have reached a different decision on negligence. Gee v. Fong, 2018 WL 1044950

The Northern District of Indiana held that a trucking company that hires another trucking company to provide steel hauling services will not be responsible for injuries to the driver. The driver claimed that he was injured because the equipment provided was defective. The court held that the defendant did not exercise any significant control over the operation. Thomas v. Burnham Trucking, 2018 U.S. Dist. LEXIS 39536

An indemnitee’s action against the trucker’s insurer was determined not to be ripe in the Eastern District of Pennsylvania. The court held that while the insurer was providing a defense to the indemnitee, even under a reservation, there was no basis for a declaratory judgment action on the duty to defend. The issue of indemnity was also not ripe as the underlying action was still being litigated. The court also held that a claim for negligence against the insurance agent would fail as the indemnitee did not show that it was a third party beneficiary of the relationship between the trucker and the agent. Republic Servs. Of Pa v. Caribbean Operators, 2018 U.S. Dist. LEXIS 41672

UPS was successful in its request for summary judgment in the Northern District of Mississippi on the issue of gross negligence and punitive damages in an action arising from a fatal truck accident in which UPS was a second vehicle to strike plaintiff. While the court left open the issue of whether the UPS driver was negligent it noted that if not constrained by rules deferring to plaintiff on questions of fact, it would have found in favor of UPS on that motion too. Pennington v. UPS Group Freight, 2018 U.S. Dist. LEXIS 41569

A truck driver was unsuccessful in his pursuit of a claim for injuries caused when his tractor trailer was struck by a train while he was on a railroad track. The Court of Appeals in Texas upheld the jury verdict in favor of the rail carrier, concluding that it was reasonable to consider the fact that the driver did not raise the low boy before crossing the track and the fact that the driver may not have been paying attention to the oncoming train while he was trying to raise the trailer. Robertson v. Union Pacific Railroad, 2018 WL 1414498

A default judgement entered against a truck driver was vacated in the Middle District of North Carolina. The driver, who was non-English speaking and incarcerated tried to file an answer by sending a letter to counsel. The court held that the defendant should be given an opportunity to litigate liability. Thomas v. Allen Lund Co., 2018 U.S. Dist. LEXIS 40493

Speaking of non-English speaking drivers, the Eastern District in Missouri denied a motor carrier’s request for summary judgment on a punitive damages count when the driver involved in the accident did not speak English. The court held that failure to follow motor carrier regulations and industry standards, including language requirements, could give rise to punitive damages. The punitive damages claim against the driver was dismissed. Pugh v. JunQing, 2018 WL 1406589

Even though plaintiff filed a direct action against a trucker’s general liability policy more than one year after it obtained judgment against the motor carrier, the Court of Appeals in Louisiana overturned the trial court’s dismissal of the action. The court held that the plaintiff should be given an opportunity to discover whether there was a basis for an exception to the statute of limitations. Russell v. Jones, 2018 WL 1250223

Who is responsible when the tires come off the truck and strike another vehicle? In the Western District of Kentucky the plaintiff was permitted to amend the complaint to allege claims for negligence, grossly negligent supervision and punitive damages against the repair facility that had worked on the tires shortly before the loss. Auto-Owners Insurance Co. v. Aspas, 2018 WL 1403902

What information is discoverable from a trucking company? The Supreme Court of Alabama held that a trucker would not be obligated to produce its bills of lading as they contained confidential information. However absent evidence that operations and safety manuals contained trade secrets those documents would have to be released. Ex Parte Industrial Warehouse Services, 2018 WL 1126576

What about the insurer’s documents? The District Court in Kansas was asked about the production of the claim file from a liability insurer for a trucker in the personal injury action. While the court did not specifically address this claim file it did conclude that the claim file was relevant and potentially discoverable, detailing the requirements needed to establish a basis for refusing to release the documents in the claim file. Kosjer v. Coffeeville Resources Crude Transportation, 2018 WL 1151515

The Western District in PA held that there were question of fact on whether plaintiff could recover for injuries suffered when he hit the defendant’s truck which was stopped on the roadway. While the defendant had failed to post warnings that he was stopped plaintiff may have been given enough time to stop. The Court also held that a co-driver could not be liable for negligent supervision or training of the operator. The plaintiff’s claim for negligent entrustment against the motor carrier also failed when the only evidence that the plaintiff presented was that the driver was a new driver. The court also dismissed claims for negligent maintenance, negligent selection and negligence per se. Fakes v Terry, 2018 WL 1382513

Worker’s Compensation/PIP
After years of litigation the Court of Appeals in Louisiana upheld a judgment which compelled a trucker to pay disputed premiums for owner-operators and independent contractors and dismissed the motor carrier’s claim for coverage under a contingent policy issued to the driver. The Court also held that other related entities were also liable for the owed premium. Louisiana Safety Association v. Will Transport, 2018 WL 1078161

Was a truck driver entitled to PIP benefits under the trucker’s policy for injuries suffered when there was an explosion while he was outside the truck? The Court of Appeals in Michigan held that he was not entitled to the benefits as he was not occupying the truck at the time of the explosion. Odeh v. Sentry Insurance Co., 2018 WL 1403572

The Appellate Court in Wisconsin upheld the denial of Worker’s Compensation benefits to a truck driver who claimed work related injuries because he drove a 20 foot straight truck with a solid bench and no cushioning which, together with rough suspension, caused him to bounce out of his seat and suffer lower back pain. That, coupled with an allegation that he injured when delivering heavy plant carts, was not enough to get him an award. Newbolds v. Ill, Workers’ Comp. Comm’n, 2018 Il. App. 2d 170301WC-U

A worker’s compensation insurer was granted judgment that it was not obligated to provide coverage for an insured who failed to obtain worker’s compensation coverage for out of state operations. The Northern District of Illinois held that the motor carrier took its own risk when it failed to obtain the appropriate coverage for out of state operations and even a subsequent audit which indicated out of state operations would not estop the insure from denying coverage. Hartford Underwriters Ins. Co. v. Worldwide Transportation Shipping Co., 2018 WL 1378177.

See you next month!

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