Bits & Pieces

Volume 21, Edition 7


Good Day Everyone!

I always get a kick out of sending our Bits N Pieces in July because it confirms to us that no one is working! I never get so many out of office emails as I do this month. I hope you are all having fun.

This month we report:

CVSA RESULTS. CVSA did an unannounced brake inspection this month. Almost 1,600 commercial motor vehicles with critical brake violations were put out of service. Fifty-two U.S. and Canadian jurisdictions conducted 11,531 roadside inspections on commercial motor vehicles and removed 1,595 vehicles with brake violations. 13.8 percent of the total number of vehicles inspected was placed out of service for brake violations.

ANTI-INDEMNITY. Rhode Island has signed into law a bill to prohibit indemnification clauses in trucking contracts. The rule outlaws provisions in contracts that provide for shippers to be indemnified for losses caused by their own negligence. This is good for truckers and insurers alike. States yet to adopt protections are Delaware, Mississippi, New Hampshire and Vermont.

18 YEAR OLD DRIVERS. The DOT has announced a pilot program that will allow military veterans and reservists who are 18-20 years old to operate large trucks in interstate commerce. A 60-day notice of the pilot program was released by the DOT. The pilot program will drop the minimum age for a commercial driver’s license in interstate commerce from 21 to 18 for those who possess the U.S. military equivalent of a CDL.

In other driver news the FMCSA published a proposal rulemaking that would eliminate eight instructional units from the required theory curriculum for individuals upgrading from a Class B CDL to a Class A CDL, concluding that these drivers were already advanced enough on these topes. The proposed topics of instruction that would be removed are located in the theory instruction portion of the Class A training curriculum, specifically, Section A.1.5, “Non-Driving Activities.”

The topics are:

• Handling and Documenting Cargo;
• Environmental Compliance Issues;
• Post-Crash Procedures;
• External Communications;
• Whistleblower/Coercion;
• Trip Planning;
• Drugs/Alcohol; and
• Medical Requirements.

CSA CHANGES. The FMCSA will not be implementing proposed enhancements to CSA. FMCSA issued a notice on July 10 that it was forgoing the proposed changes which included changes to the intervention thresholds, revisions to HAZ MAT BASIC and an increase in the maximum VMT.

HIGHWAY INFASTRUCTURE The Conditions and Performance Report of our transport system was recently released by the FHWA. The report was broken down into two chapters: freight transport and conditions and performance of the network. Of the 57,600 bridges along the freight network, 4.3 percent are structurally deficient. Nearly 31.5 percent of bridges on the network are 51 years old or older, and more than half are 26-50 years old. hat is an improvement compared with the national average of bridges on all roads. Of the 615,002 bridges throughout the U.S., nearly 9 percent are structurally deficient with nearly 40 percent older than 50 years old.

The report also addresses the congestion in the US. The top ten locations in 2014 are: Atlanta: I-285 at I-85 (north), Chicago: I-290 at I-90/I-94, Fort Lee, N.J.: I-95 at SR 4, Louisville, Ky.: I-65 at I-64/I-71; Houston: I-610 at US 290; Houston: I-10 at I-45, Cincinnati: I-71 at I-75, Houston: I-45 at US 59, Los Angeles: SR 60 at SR 57 and Houston: I-10 at US 59

As far as moving freight, trucks still lead the way, moving 64 percent of freight by tonnage and 69 percent of freight by value and growth is expected to continue by 45 percent by 2045 and the value of freight to increase by 84 percent. Comparatively, the weight of freight for all modes collectively is expected to increase by 40 percent, with the value forecasted to increase by 92 percent. Air freight value is expected to more than triple by 2045. To view the full report, click here.

Current Cases

An insurance broker was spared the potential for liability for failure to procure adequate insurance for a trucker when the injured plaintiff failed to file the suit within the statute of limitations. The broker allegedly failed to make sure that the trucking company had an MCS-90 on the policy and the plaintiff was only permitted to recovery the policy limit of $100,000. The Eastern District of Virginia held that the statute of limitations started running when the policy was issued without the endorsement and not when the accident occurred. Penn v. 1st Southern Insurance Services, 2018 WL 3468366

An agent and an insurer were granted judgment on a claim that they failed to properly insure certain vehicles. The insured had entered into a settlement agreement, which it assigned to the injured plaintiff for recovery against the insurer and agent. The supreme court in Utah held as the insured suffered no actual damages there could be no claim against the broker for providing the insurer with the wrong schedule of vehicles. The insurer was held to have no vicarious liability for the actions of the agent. Espenschied Transport Corp. v. Fleetwood Services, 2018 WL 3322746

Werner Enterprises was afforded summary judgment on direct negligence claims when it agreed that it was vicariously liable for the actions of the driver. The Northern District of Texas did not accept the plaintiff’s argument that the federal safety regulations created a private cause of action, Fuller v. Werner Enterprises, 2018 WL 3548886

The New York Commercial Drivers Manual can be used by an expert as a basis for an expert opinion on the applicable standard of care with respect to the safe operation of a commercial vehicle. The guidance cannot be classified as a law or regulation. Hood v. Sellers, 2018 WL 3429708

One motor carrier is seeking recovery against its insurer on the basis that the insurer failed to promptly settle an underlying personal injury action. While the District Court in Texas held that the motor carrier had no claim for breach of a duty under the Stowers doctrine to settle but that it could continue its claims for violation of the Texas Insurance Code and breach of contract.  Medallion Transport & Logistics, LLC v. AIG Claims, 2018 WL 3249708

A motor carrier’s efforts to have a personal injury action dismissed on the grounds that the plaintiff failed to show the required $75,000 injury failed in the Middle District of Georgia. As plaintiff showed that he had suffered $300,000 in lost wages and over $100,000 in medical expenses the required amount was met. Hicks v. Stamper, 2018 U.S. Dist LEXIS 118752

A direct action will not lie against an insurer in Oklahoma when the motor carrier is not registered in that state. The Western District of Oklahoma rejected an argument that registration under the UCR constituted registration in every state for the purposes of the Oklahoma Direct Action statute Harness v. TWG Transportation 2018 WL 3318955

Texas also would not allow for a direct action by an injured plaintiff absent a judgment against the motor carrier. Plaintiff tried to circumvent the requirement of a judgment against the motor carrier by arguing that it was a third party beneficiary of the obligation of the insurer to defend and therefore could seek a declaration that the insurer had to defend. The court of appeals in Texas said no. Durham v. Hallmark County Mutual Insurance Co. 2018 WL3469257

After suffering the impact of a 32.5 million verdict a motor carrier was hit again with prejudgment interest in the amount of 4.8 million. The Indiana Court of Appeals held that the plaintiff met the requirements of the Indiana statute allowing for prejudgment interest by making an offer to settle within the time limits of the statue and granting the appropriate time for a response, which was not made. J.B. Hunt v. Zak, 2018 WL 3450523

A motor carrier was granted summary judgment on a suit seeking damages for a rear end collision. The Southern District of Alabama held that there was inadequate evidence that the driver failed to act reasonably in trying to avoid the rear end collision. The Court also held that the motor carrier was not liable for negligent failure to inspect the brakes. Smith v. Liquid Transport Corporation, 2018 WL 3432532

The District Court of New Jersey denied a plaintiff’s effort to obtain summary judgment against a motor carrier on the theory that the motor carrier violated the careless driving statute. The court held that there was insufficient evidence to support such a conclusion, also allowing plaintiff’s BAC to be admitted into evidence, and denied plaintiff’s request for a spoliation ruling against defendant. Ortiz v. Adams, 2018 WL 3410027

A plaintiff was precluded from seeking to file a claim against a liability truck insurer when the plaintiff failed to have a judgment against the motor carrier. The Appellate Division in New York held that plaintiff could not assert a claim of fraud simply based upon the fact that plaintiff had a difficult time ascertaining who the insurer was. Carr v. Haas, 2018 WL 3383595

Following a bench trial in the Southern District of Indiana the court held that a motor carrier was vicariously liable for the negligence of a truck driver. The driver, who looked down trying to find his cell phone, struck and injured the plaintiff. Verdict was rendered for $500,000 for the injuries suffered. Smith v. Triple B Trucking, 2018 WL 3424302.

Over in the Louisiana Court of Appeals the appellate court upheld a jury verdict against a truck driver and a motor carrier for a fatal truck accident. The motor carrier itself was found 90% at fault for putting a 6-7 year old thrice treaded and plugged tire on the truck which blew and caused the incident. Mouton v. AAA Cooper, 2018 WL 3454989

While another Louisiana Court of Appeals upheld a defense verdict concluding that a driver and his trucking company, also AAA Cooper, were not liable for injuries plaintiff claimed she suffered when the driver allegedly backed into her. The Court disagreed. Mace v. Turner, 2018 WL 3479226

A driver and his employer were also granted summary judgment in a personal injury action where the plaintiff ran a red light. The court held that there simply was no evidence that the truck driver was inattentive, driving too fast or failed to react properly. Bravo v. Hernandez, 2018 WL 3357779

A motor carrier was found not to be liable for injuries suffered when a driver struck the plaintiff’s home resulting in substantial damage to the home. The accident was caused when the driver suffered a fatal heart attack and lost control of the vehicle. Following a bench trial in Pennsylvania the court concluded that this was an unforeseen event and liability would not be assessed against the motor carrier. The court also held that plaintiff failed to establish the necessary elements for negligent or fraudulent misrepresentation when plaintiff claimed that the motor carrier agreed to pay for the damages. Knight v. J.B. Hunt, 2018 WL 3454026

Last month we reported on a case asserting liability against a truck driver for failing to check to see if there was anyone sleeping under his truck before he moved it (see last month’s Bits N Pieces). This month the Eastern District of Tennessee concluded that the plaintiff could not assert a claim for negligence per se based upon the federal motor carrier safety regulations. The court held that it did not give rise to a private cause of action and therefore could not support such a cause of action. Steinberg v. Luedtke Trucking, 2018 WL 3233341

Judgment was affirmed against a motor carrier for damages suffered when an oil tanker overturned and spilled onto the plaintiffs’ property. The Supreme Court in Maine held that the plaintiff was not required to show a specific depreciation in the market or rental value of the property because the interference was more than mere physical discomfort or mental annoyance. West v. Jewett & Noonan Transp., Inc., 2018 ME 98

A trucking company was successful in having a personal injury suit dismissed following a failure of the plaintiff to respond to discovery. The Western District of Louisiana held that the plaintiff was given more than enough time to respond to the demands. Cascio v. Balkan Express, 2018 U.S. Distr LEXIS 119648

Does a contributory negligence statute apply when a cargo claimant seeks recovery both from the motor carrier it hired as well as a second party who was involved in a truck accident? The District of Nebraska held that it does. The court rejected the plaintiff’s argument that a contributory negligence statute was preempted by the Carmack Amendment, concluding that its application did not prevent the shipper from recovering its Carmack damages. Plaintiff’s recovery against the remaining defendant was reduced by the proportionate share of liability of the settling Carmack defendant, and not just the settlement amount. The court also granted summary judgment to the Carmack carriers on the cross-claim for contribution brought by the co-defendant.  Certain Underwriters at Lloyds v. Southern Pride Trucking, 2018 WL 3158821

The steps necessary to support a default judgment on a Carmack claim were set forth by the Northern District of Texas. As the plaintiff was able to sustain its burden of proof it was successful in obtaining the judgment. Interface Printers,  LLC v. BGF Global, LLC., 2018 U.S. Dist LEXIS 115344

The Carmack Amendment preempts claims for mental anguish. However the Middle District in Louisiana held that the motor carrier was not entitled to judgment on its limitation of liability as it failed to sustain its burden of proof that it had complied with the requirements necessary to invoke the limitation. Diezelski v. All My Sons Moving & Storage of Baton Rouge, Inc., 2018 U.S. Dist LEXIS 105698

Worker’s Compensation
We routinely see multiple companies set up by one principle to cover various services related to a business. In the District Court in New Hampshire the court considered whether a trucking company would be entitled to the defense that worker’s compensation was the exclusive remedy when the injured party worked for one company while helping the truck driver put chains on his truck. The court held that there were questions of fact as to whether the companies were alter egos (which would allow for the remedy to apply) or whether the borrowed servant rule applied to the parties involved. Young v. Douchette, 2018 WL 3321435

The Court of Appeals in Kansas held that the Worker’s Compensation Board lacked the jurisdiction to set aside an award entered by an Administrative Law Judge. The court held that the motor carrier failed to contest the award before the ALJ and therefore could not seek to have it set aside. Castaneda v. ALG Transport Services, 2018 WL 3320932

The Appellate Court in Illinois held that a truck driver failed to establish that the repetitive action of opening and closing a trailer door which was not working properly actually caused work related damages. Campbell v. Illinois Worker’s Compensation Board, 2018 IL. App(3d) 170725

Jury Verdicts
$101,000,000 – A truck accident resulted in a verdict of $101 million for a tractor-trailer accident the first place. The jury in the district court in Upshur County, Texas found the trucker to be 70 percent at fault and the trucking company 30 percent responsible for the crash. The trucking company was found to have violated its own procedures in hiring and retaining the driver. Patterson v. Acker

$0 – defense verdict in Montgomery County Pennsylvania – The plaintiff claimed defendant motor carrier negligently moved its truck when she was trying to pass, The jury found that the defendants were negligent but that their negligence was not a cause of bringing harm to the plaintiff and returned a defense verdict. McMearty v. Pegler

$823,046 – rear end collision in Los Angeles County, California. Plaintiffs’ struck in the rear by truck. Garcia v. Hernandez

Enjoy summer. See you next month

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