Dear Subscribers:

I hope everyone had a great Memorial Day and took some time to remember and thank those who sacrificed so that we could have the pleasure of a great start to summer weekend. Poured down on the Jersey Shore but we are still hopeful for an awesome summer. We had a great time at the IMUA annual meeting in Arizona. It was fun to see so many of you. Shout out to all of the award winners – well deserved accolades to all.

Things are quieting down as we head into summer so the report is fairly short, although the courts were quite prolific this month.

We report:

LARGE TRUCK AND BUS CRASH FACTS 2016. The FMCSA released its crash facts for 2016, showing that crashes were on the rise for 2016. There is a wealth of data in the report showing the wide variety of reasons for the crashes. Interestingly, 38% of truck accidents involved another vehicle entering into the truck’s lane. The report indicates that more than 60% of fatal accidents occurred in rural areas. The most common time frame for fatal truck-involved crashes was between 9 a.m. and 3 p.m., accounting for one-third of crashes. Nearly two thirds of truck-involved fatal crashes occurred during the daytime hours of 6 a.m. to 6 p.m. You can view a copy of the report here.

TRANSPORTATION IS A DANGEROUS JOB. The Bureau of Labor Statistics (BLS) reports a rise in work-related deaths in 2016. Transportation incidents lead the way with 2,083 transportation related deaths. The full table is below.

Event or exposure	2015	2016
Transportation incidents	2,054	2,083
Slips, trips, and falls	800	849
Contact with objects and equipment	722	761
Violence/other injuries by persons/animals	703	866
Exposure to harmful substances/environments	424	518
Fires and explosions	121	88

CARGO THEFT. Sensitech reports that there were 115 cargo thefts in the United States in the first quarter with an average loss value per incident of $117,283. Unsecured parking areas were the prime target, with truckloads the primary focus. The most common type of product stolen was electronics, making up 24% of all thefts. California saw 37% of all cargo thefts, making it the top state for incidents. Nearly a third of the thefts there were electronics and about 20% were home and garden products. Illinois became the second leading state for thefts, accounting for 13% of the total, a rise of 140% over the first quarter a year ago. Electronics made up 40% of thefts in the state.

ELECTRONIC LOGGING DEVICES. There is movement under way to seek to remove the requirement that small truckers (under 10 units) and ag haulers be ELD complaint. We will see where that goes. In the meantime we have been asked a number of times for the current stats on ELD violations since the violations started counting. Special thanks to our wonderful Aliza Berger who can come up with numbers quicker than I can ask the question. (any questions on the list – email her at aberger@cabadvantage.com) She passed along this list:

Violation Code	Number of Citations	Violation Description
395.22H1	1330	Driver failing to maintain ELD users manual
395.24C2III	506	Driver failed to manually add shipping document number
395.24C2II	271	Driver failed to manually add the trailer number
395.22H3	704	Driver failed to maintain instruction sheet for ELD malfuntion reporting requirements
395.22H2	1392	Driver failing to maintain ELD instruction sheet
395.34A1	381	Failing to note malfunction that requires use of paper log
395.24C1III	1	Driver failed to add file comment per safety officers request
395.32B	63	Driver failed to assume or decline unassigned driving time
395.22G	891	Portable ELD not mounted in a fixed position and visible to driver
395.24C1I	77	Driver failed to make annotations when applicable
395.24D	1178	ELD cannot transfer ELD records electronically
395.30B1	278	Driver failed to certify the accuracy of the information gathered by the ELD
395.30C	60	Failing to follow the prompts from the ELD when editing/adding missing information
395.24C2I	29	Driver failed to manually add CMV power unit number
395.20B	98	The ELDs display screen cannot be viewed outside of the commercial motor vehicle.
395.28	7	Driver failed to select/deselect or annotate a special driving category or exempt status
395.11G	16	Failing to provide supporting documents in the drivers possession upon request
395.8A-ELD	1606	ELD – No record of duty status (ELD Required)

ATRI COSTS OF OPERATIONS.

For our trucker subscribers the ATRI is seeking data for the annual update to its Operational Costs of Trucking report. Among the for-hire fleet metrics being requested by ATRI are driver pay, fuel costs, insurance premiums and lease or purchase payments. Carriers are asked to provide full-year 2017 cost per mile and/or cost per hour data. The ATRI reports that this data will provides carriers with an important high-level benchmarking tool and government agencies with real world data for transportation infrastructure investment decisions. For-hire motor carriers are encouraged to provide confidential operational cost data to ATRI by Friday, June 22, 2018. ATRI’s data collection form is available online here. Pass this along to your insureds as more data means more a better view of the industry.

CASES

AUTO

There is no basis for a strict liability claim against a motor carrier for the actions of a driver which caused personal injury. The Southern District in Ohio held that a direct negligence claim against the motor carrier was also not properly pled. However when it came to the claim for punitive damages the Court held that while there was the plaintiff would be permitted to continue to assert a punitive damages claims based upon allegations of spoliation of evidence. Baker v. Swift Transportation, 2018 WL 2088006

Insurers who paid a significant claim for personal injuries arising from a truck accident were not permitted to pursue the consignee for contribution. The Middle District of Pennsylvania held that when the accident occurred on a state roadway the consignee as a matter of law, owed no duty to the traveling public to ensure that trucks entering the premises could do so safely. National Specialty Ins. Co v. Tunkhannock Auto Mart, 2018 WL 2230412

A plaintiff was not permitted to assert a claim for punitive damages for injuries suffered when the plaintiff hit an overturned tractor-trailer. The District Court in Minnesota refused to permit such a cause of action when the tractor-trailer overturned when the driver tried to avoid hitting a herd of deer. The Court held that that there was no evidence that the driver acted recklessly. Soto v. Swift Transportation, 2018 WL2193111

The question of whether a motor carrier should have anticipated a sudden stop by another vehicle and therefore been ready to stop and not hit the plaintiff’s vehicle was held to be a question of fact in the Northern District of Illinois. While the Court recognized that the motor carrier may not be negligent when sudden acts by third parties started the process, it was within the province of the jury to make a decision on the issue. Dineen v. Oiver, 2018 WL 2193196.

Maryland has agreed that when a trucking company agrees that it is vicariously liable for the driver of its vehicle there can be no claim for negligent entrustment, hiring, trailing and supervision. The District Court acknowledged that Maryland was the leader in this rule. Day v. Stevens, 2018 WL 2064735

The Court dismissed a complaint, without prejudice, brought against a motor carrier, its insurer, the claims manager and the adjuster alleging false designation under Pennsylvania law as well as violation of the unfair trade practices. The District Court in Pennsylvania held that the plaintiff failed to allege how violation of the designation act by the insurer proximately caused the accident. The Court also held that the plaintiff failed to pled fact to place itself with the auspices of the unfair trade practices act. New Legion Company v. Thandi, 2018 WL 2121523

While a claim of negligent entrustment will generally not stand when the motor carrier has conceded vicarious liability for the actions of the driver, the Middle District of Pennsylvania held that it was premature to dismiss the cause of action before discovery was completed. Hill v. Graen 2018 WL 2151317

The warehouse that stored and loaded a shipment of cargo was granted summary judgment on a claim seeking damages caused when the cargo came unsecured and caused an accident. The Court of Appeals in Indiana held that when the warehouseman had no involvement in securing the cargo it was not reasonably foreseeable that they would owe a duty to the injured plaintiffs. Staggs v. ADS Logistics, 2018 WL 2187806

Allegations of prior bad acts, based upon inspection violations, were allowed to stay in the complaint in the Middle District of North Carolina. The defendant sought to strike the allegations on the basis that prior violations did not support a claim for inadequate driver qualifications, training or monitoring. The court held that it was too soon in the litigation and the allegations should stay. Graciano v. Blue Sky Logistics, 2017 WL 2187806

Over in the District Court in Louisiana the Court rejected a plaintiff’s request for a new trial when the plaintiff was unhappy with the small verdict for injuries suffered in a truck accident. The court rejected plaintiff’s claim that the jury compromised when they gave damages for future medical but not future pain and suffering. The court also refused to grant a new trial when the “new evidence” was something plaintiff should have had before trial, if she had exercised due diligence to get it. Wright v. National Interstate Insurance Co., 2018 WL 2017567

Under a ruling in New York, a plaintiff does not have to establish freedom from fault in order to obtain summary judgment on the defendant’s liability, however the District Court in New York held that the plaintiff’s comparative fault in failing to see the truck coming into her lane was still a question of fact. Defendant was afforded the opportunity to present its facts before the jury. Marseille v. National Freight, Inc., 2018 WL 2041387

The Western District of North Carolina granted a motor carrier’s request for relief from a judgement entered against it. Apparently counsel had made some errors in sending an offer of judgment which allowed a plaintiff to accept two offers, doubling his recovery. While the Court held that plaintiff was technically correct on the acceptance it was inequitable to allow double recovery when it was clearly intended to be one offer. Jones v. Higgins, 2018 WL 2138542

The Missouri Court of Appeals upheld a multi-million dollar verdict against a trucking company for the actions of a driver which resulted in injury to the plaintiff, including a claim for punitive damages. The Court held that the jury did not have a prearranged plan for determining the damages. Ross v. Jeschke AG Services, 2018 WL 2011524

The District Court in Connecticut remanded an action commenced against a a trucking company whose driver moved a tractor causing a dock worker to fall and be injured. When the evidence was clear that the damages were below $75000 the matter belonged back in state court. Bell v. Doe, 2018 WL 2016855

Dismissal for spoliation of evidence is a harsh remedy. However the Court of Appeals in Tennessee dismissed a claim by a driver against the trucking company he was hauling for. The driver claimed that the equipment provided by the trucking company was defective. However as the plaintiff turned the equipment over to its insurer, who salvaged the equipment the court held that the defendant was substantially prejudiced and unable to investigate or defend against the suit. Gardner v. R&J Express, 2018 WL 2095248

A trucking company’s efforts to transfer a case to another jurisdiction on the basis that the initial forum was more favorable to cyclists, one of which it was alleged to have injured, failed in the District Court in Minnesota. The Court held that the defendant failed to sustain its burden to support a transfer. Roumeliotis v. JB Hunt, 2018 WL 1990030

The Southern District in Alabama held that a motor carrier was entitled to summary judgment on claims of negligence and wantonness in failing to run a safe trucking company where there was no proof that the failure to train the driver on the FMCSRs regarding driver fatigue and restricting the use of hand-held devices was a proximate cause of the accident. The Court held that there was nothing before the court which indicated that the driver was unaware of the regulations. Driskell v. Kenny Enters., LLC, 2018 U.S. Dist. LEXIS 85743

You may recall a decision last year in which the court held that a claim against a motor carrier for personal injuries was preempted by the Carmack Amendment. The court continued addressing this case this month when the Eastern District of Pennsylvania held that FAAAA preempts a negligence claim against the broker, but not against the shipper, for alleged improper loading. The court did, however, allow a breach of contract claim against the broker, concluding that the consignee was a third party beneficiary of the contract between the broker and the motor carrier. This is an important decision to be considered by those insuring truck brokers. Krauss v. Iris USA, 2018 WL 2063839

The Western District in Virginia held that claims against a volunteer fire company for negligence arising from an accident with the ambulance were barred under the doctrine of sovereign immunity. Since there was no reasonable basis for a claim for gross negligence the case was dismissed. Davis v. Bryson, 2018 WL 1955825

The Court of Appeals in Georgia dismissed a direct action against a motor carrier’s excess insurer. The court held that the “direct action statute” O.C.G.A. § 40-1-112, does not authorize actions against an motor carrier’s excess insurer. RLI Insurance Co. v. Duncan, 2018 Ga. App. LEXIS 294

A plaintiff was permitted to assert a claim for punitive damages based upon a truck driver’s post-accident conduct. The District Court in New Mexico allowed a plaintiff to amend a complaint to assert that claim, concluding that it was a matter for discovery and was not an exercise in futility. May v. Tex. Lobo Trucking Co., 2018 U.S. Dist. LEXIS 83447

A motor carrier’s efforts to protect itself with a liability waiver signed by truck passengers failed in the Western District of Tennessee. The court held that the waiver signed by the passenger, the driver’s wife, may not be valid and lacked consideration. The fact that both the husband and wife showed signs of drug use at the time of the accident did not preclude potentially recovery for the wife’s estate. The plaintiff was allowed to proceed with the suit Amalu v. Stevens Transp., Inc.2018 U.S. Dist. LEXIS 78763

The Court of Appeals in California considered the dispute between two insurers over the obligation to defend and indemnify a trucking company. Only one insurer stepped up and defended the trucking company and sought reimbursement from the other insurer. The court held that the first insurer could not pursue the assigned causes of action because the insureds suffered no actionable damages when the insurer paid the claim. The Court did hold that the second insurer had a duty to defend and indemnify and remanded the case for a proper evaluation of the apportionment of the defense costs. Cal. Capital Ins. Co. v. Scottsdale Indem. Ins. Co.2018 Cal. App. Unpub. LEXIS 3400

Cargo
The Northern District in Illinois held that a breach of contract claim against a broker for a cargo loss was not preempted by FAAAA. The Court held that there were sufficient facts to support a claim against the broker for failing to retain a responsible motor carrier to transport the shipment. The shipment was rejected at destination when the band was not on the shipment at delivery. Georgia Nut Company v. C.H. Robinson, 2018 WL 2009499

The District Court in California allowed for the entry of a default judgment against a motor carrier under the terms of the Carmack Amendment. The court held that the plaintiff was entitled to full damages, and prejudgment interest. Heritage Intl v. SMBAT Enterprises, 2018 U.S. Dist. LEXIS 84277

The 9 month claim filing requirement continues to be a viable defense for a motor carrier. The 11th Circuit Court of Appeals held that a plaintiff was unable to sustain a claim against the carrier when she failed to timely file a claim pursuant to the requirements of the tariff. Skanes v. Fed Ex., United States Court of Appeals for the Eleventh Circuit, 2018 U.S. App. LEXIS 12638

While plaintiff failed to properly allege a claim under the Carmack Amendment the Court in the Northern District of West Virginia held that the proper remedy was to permit the plaintiff to amend the complaint. The plaintiff was not, however, permitted to continue an action against the motor carrier’s agent. Dzingeleski v. Allied Van Lines, Inc. 2018 U.S. Dist. LEXIS 83249

Arbitration clauses in transportation agreements are enforceable. The District Court in New Jersey held that the plaintiff’s complaint for cargo damages under the Carmack Amendment should be dismissed when the contract required that the parties arbitrate the issues. Alfa Adhesives v. A. Duie Pyle Inc., 2018 U.S. Dist. LEXIS 85511

The District Court in Arizona held that a broker’s motion to dismiss a complaint on the basis that it had settled with one of the parties in the transportation and constituted an accord and satisfaction was premature. The court held that as there was no evidence as to whether the settling party was acting as the plaintiff’s agent the motion was premature. Hartford Fire Ins. Co. v. 3DL Design Incorporation. 2018 U.S. Dist. LEXIS 87849

Worker’s Compensation
The Commonwealth of Pennsylvania upheld the denial of worker’s compensation benefits to a truck driver who was injured when he was washing his truck. The Court accepted the employer’s evidence that taking vehicles home was not permitted, concluding that the driver was acting outside the scope of employment when he was injured. Baker v. Worker’s Compensation Board, 2018 WL 1997103

Providing worker’s compensation through a third party Professional Employee Organization does not cause the trucking company to lose the benefit of claiming that the exclusive remedy rule applies to injuries suffered by the driver The Supreme Court of Montana dismissed a claim against the trucking company. Ramsbacher v. Jim Palmer Trucking, 2018 WL 2111891

Drivers who were fatally injured with they went inside containers which were not properly washed were precluded from recovering from the chemical company who contracted with the trucking company to wash the tanks and transport the chemicals. The Court of Appeals in Kentucky held that that the defendant was an “up-the-ladder contractor” who was entitled to the exclusive remedy protection afforded by the Kentucky Workers’ Compensation Act. Estate of Young v. ISP Chems., LLC, 2018 Ky. App. Unpub. LEXIS 324

Truck Verdicts.

Texas – Werner Enterprises was hit with a verdict of 89.6 million arising from a truck accident in 2014. The plaintiff’s vehicle crossed over into the trucker’s lane of traffic. Werner intends to appeal and we will follow this case and report as we hear more.

See you next month!