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Bits & Pieces

June 2019

CAB Bits & Pieces June 2019

Good Day CAB Nation!

Happy Summer! We at CAB hope you and your families are enjoying a wonderful summer. With the 4th of July quickly approaching, we hope you take a restful break to enjoy time with your family and friends. If you do, as you travel to your holiday destinations, we encourage you to observe the drivers and trucking companies that are still rolling safely and thank them and wish them a Happy 4th of July if you get the chance!!!

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Have a great month!

CAB’s Tips & Tricks:

Building off the success of our new filter in Carrier Central, you may have also noticed we’ve added a filter button (green arrow below) that will allow you to filter motor carriers with shared characteristics for search results in Carrier Central. This additional filter capability allows you to quickly hone in on the results you’re looking for. This filter tools is also available in Workspace. This additional enhancement functionality was put in place to provide additional speed and efficiency when searching for motor carriers.

New month, new webinar video!

CAB for Underwriting– Our newest webinar is titled CAB for Underwriting and it has been released to rave reviews! Or at least a couple very nice compliments about the content. CAB for underwriting is just slightly over 43 minutes as we’ve strived to provide training videos that are concise and useful. Even though, CAB for Underwriting was developed and recorded specifically with underwriters in mind, it can also serve as a very good introduction to the CAB report for Loss Control, Claims, SIU and the like. The video can be accessed by clicking here.

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:

Proposed Hair Drug Testing Rules sent to OMB: The Substance Abuse and Mental Health Services Administration (SAMHSA) sent the proposed final rule to the White House Office of Management and Budget (OMB) for review on Tuesday, June 11. This hair-test rule would establish the scientific and technical guidelines for the inclusion of hair specimens in the Mandatory Guidelines for Federal Workplace Drug Testing Programs and establishes standards for certification of laboratories engaged in drug testing for federal agencies. Currently, a urine sample satisfies drug and alcohol testing requirements for the FMCSA. Due to the significance of the regulation, OMB will have 60 to 90 days to review it. Once approved, federal agencies will be able to review the rule prior to posting it for public comments in the Federal Register.

DOT Examiner Sentenced for Fraudulent Exams: A former Pennsylvania DOT medical examiner was sentenced for certifying medical exams he never administered. On June 5, the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia sentenced Dr. Michael McCormick to three years of probation and fined him $1,000 for signing off on DOT exams he never conducted. McCormick had his staff at Express Med Urgent Care conduct a DOT physical exam on at least one patient in April 2017. Unfortunately, his staff members were not certified medical examiners (CME). McCormick’s staff completed the DOT medical exam report under his name and National Registry of Certified Medical Examiners number. Under false pretenses, the patient was issued an examination certificate. After the investigation, FMCSA removed McCormick from the National Registry and voided 223 active medical examiner certificates held by commercial drivers.

Large Truck Crash Fatalities Rise Again: Fatalities from crashes involving at least one large truck are expected to rise roughly 3 percent in 2018 (NHTSA June 2019 Traffic Safety Facts). Initial reports show while traffic fatalities for 2018 are projected to be down about 1 percent from 2017, the fatality rate for crashes involving at least one large truck are projected to go up. A total of 37,133 people died as a result of traffic fatalities in 2017. That number is projected to reduce by 383 deaths for 2018. The Early Estimate of Motor Vehicle Traffic Fatalities in 2018 report can be found here.

FMCSA Administrator Ray Martinez Indicates Hours of Services Proposal Soon : The administrator of the Federal Motor Carrier Safety Administration (FMCSA) expects an announcement on the revised HOS rule soon but did not give an exact date during testimony to a Senate committee on Wednesday, June 19. “I really do believe we are in the very final stages of that process, and I am hopeful that it will be in short order,” said FMCSA Administrator Ray Martinez. “I hesitate to put a certain date on it.” The proposed rule continues to be reviewed by the White House Office of Management and Budget (OMB), where it was sent for review on March 28. OMB has a 90-day allowance to review the rule and can grant one 30-day extension before being published in the Federal Register. An anticipated announcement of the proposed HOS rule was expected on June 7 but was later pushed back to the end of June.

Pennsylvania takes Initial Steps to Require Snow and Ice Removal from Vehicles: State law already allows police to ticket car and truck drivers for fines of $200 to $1,000 if the wintry precipitation causes serious injury or death. The Senate Transportation Committee voted unanimously on June 19, to advance a bill that is intended to be proactive on the issue of ice removal from vehicles. Drivers would be required to make “reasonable efforts” to remove snow or ice from all parts of their vehicles within 24 hours of a weather event. Offenders would face a maximum fine of $1,500 if the wintry precipitation causes serious injury or death. The bill would include an additional protection allowing police to ticket drivers between $25 and $75 for failure to clear snow or ice before they take to the roads. Additional information on the legislation can be found here.

FMCSA’s Hours-of-Service (HOS) Agricultural Rule Passes through the Office of Management & Budget (OMB). A pre-rule impacting the HOS for drivers delivering agricultural commodities was approved by the White House’s OMB on Friday, June 21. The next step in the process by the FMCSA will be publication of the advanced notice of proposed rulemaking in the Federal Register, so industry stakeholders will have an opportunity to comment on the rule. The FMCSA is determining to what extent it should revise or clarify the definitions of “agricultural commodity” or “livestock” in the HOS regulations. Current regulations exempt agricultural commodity and livestock haulers from the HOS when operating within a 150-air-mile radius during planting and harvesting season.

US DOT Works to Streamline Licensing Process for Prospective Commercial Motor Vehicle Drivers: The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced June 27th a proposed rule to streamline the process for men and women interested in entering the trucking workforce. The proposed rule is intended to allow states greater flexibility in conducting skill tests for individuals seeking a commercial driver’s license (CDL). “The Department is committed to reducing unnecessary barriers to employment for men and women interested in obtaining jobs in the trucking industry,” said U.S. Secretary of Transportation Elaine L. Chao.  Federal rules currently do not permit a CDL skills instructor who is also authorized by the state to administer the CDL skills test to perform both the instruction and the qualifying testing for the same CDL applicant. This proposal would eliminate that restriction and permit states the discretion to allow qualified third-party skills trainers to also conduct the skills testing for the same individual. The Notice of Proposed Rule Making can be accessed here.

The Number of Truckers is at an All-Time High: The US Census Bureau released information detailing the updated characteristics in the American Trucking Industry. A statistic of note, in 2016 the number of employer and self-employed trucking businesses reached 711,000, surpassing the pre-recession high. Additionally, among younger truckers under at 35, more are women, Hispanic and are more educated than their counterparts age 55 and older. Between 2012 and 2016, the number of trucking businesses group almost 16%, outpacing total growth across all industries. The full report can be accessed here.

CVSA’s Safe Driver Week set for July 14-20 with a Focus on Speeding: Drivers’ actions contributed to a staggering 94% of all traffic crashes, according to the National Highway Traffic Safety Administration’s (NHTSA) 2015 Traffic Safety Facts report. In response to this issue, law enforcement personnel will be on the lookout for commercial motor vehicle drivers and passenger vehicle drivers engaging in dangerous driver behaviors July 14-20 as part of the Commercial Vehicle Safety Alliance’s (CVSA) Operation Safe Driver Week. Drivers engaging in unsafe driving behaviors will be pulled over by law enforcement and may be issued a warning and/or citation. The full press release is available here.

US DOT Launches Program to help Veterans & Reservists find Jobs in the Trucking Industry: The U.S. Department of Transportation’s FMCSA announced on June 17th that it is accepting applications for a pilot program to permit 18-20 year olds who possess the U.S. military equivalent of a commercial driver’s license (CDL) to operate large trucks in interstate commerce. “This program will help our country’s Veterans and Reservists transition into good-paying jobs while addressing the shortage of truck drivers in our country,” said U.S. Transportation Secretary Elaine L. Chao.  To learn more about this program, click here.

Cases

Cargo

When dealing with a household goods carrier an injured shipper is not permitted to sue the motor carrier’s agent. The Southern District of Texas dismissed the complaint against the agent, allowing only a Carmack claim to proceed against the motor carrier. The claim for attorney’s fees was dismissed with leave to renew if the plaintiff could allege the statutory requirements which address the right to recover fees. Khalil v. Mayflower Transit, LLC, 2019 WL 2355148

The Carmack Amendment does not apply when the loss admittedly occurred in Mexico. The Southern District in California dismissed the action sending the plaintiff to seek a remedy in Mexico for the loss. Indemnity Insurance Co. v. Servicios, 2019 WL 2269948

Although we generally limit cases in this section to cargo related matters, I saw an interesting case involving the interpretation of “property of others” under an inland marine policy. The case arose from a loss to third party goods held at a storage facility. The Court of Appeals in Michigan concluded that the policy did not establish plaintiffs as insureds under the policy, nor were plaintiffs third-party beneficiaries under the policy The court held that the customers were members of a broad class whom the policy recognized as, in certain circumstances, potential recipients of incidental benefits from the policy. Plaintiff had no right to seek to enforce the contract. Farm Bureau Ins. Co. v. TNT Equip, Inc. 2019 Mich. App. LEXIS 3296

Auto
Summary judgment on a rear end collision is very difficult for a defendant. The Appellate Division in New York agreed, refusing to give a motor carrier summary judgment on liability. Even with allegations of fault on the part of the plaintiff the defendant was unable to establish that there were no questions of fact which remained to be resolved. Dunkle v. Vakoulich, 2019 WL 2400555

Admission of vicarious liability for the actions of a driver will generally allow a trucking company to be free of claims for negligent entrustment and hiring. The Northern District of Alabama agreed on that point. It did however refuse to grant judgement on a claim of wantonness against the driver. While driving at a high rate of speed does not demonstrate inherently reckless behavior on its own, excess speed coupled with other circumstances can establish that an individual’s behavior was inherently reckless and was therefore wanton. Jones v. NES Express, 2019 WL 2285655

A motor carrier’s efforts to obtain summary judgment by seeking to bar the plaintiff’s expert testimony failed. The Western District in Pennsylvania held that the doctor would be permitted to testify that the accident in which the plaintiff struck the defendant’s disabled tractor was the proximate cause of the injuries suffered by the plaintiff. Abed-Rabuh v. Hoobrajh, 2019 WL 2298711

Negligence per se claims which are founded only on the alleged violation of a federal motor carrier safety regulation are subject to dismissal. The Western District of Kentucky concluded that even when the state had accepted the federal standards of safety as applicable to intrastate transit, that alone would not give rise to a negligence per se claim under KRS 446.070, the negligence per se statute. Tassin v. BNK Transport, Inc. 2019 2271163

The continuing saga over whether a defendant motor carrier was set up for a truck accident continues in the Eastern District of Louisiana (see last month’s edition). The Eastern District in Louisiana reversed the order denying defendants’ motion for leave to file a supplemental and amending answer to the complaint, allowing the motor carrier to spell out, in greater detail, the grounds for the fraud claim. Thomas v. Chambers, 2019 WL 2289495.

The Appellate Court in Illinois overturned a $19,000 000 + verdict which found the driver’s employer partially responsible for a truck accident, as well as the driver who hit him. The court held that it was an error to bar a witness from testifying about his observation of one driver just seconds before the accident occurred and that the evidence, if presented at trial, very likely would have changed the jury’s apportionment of liability between the two defendants. The case was remanded for a new trial. This is an extensive decision addressing many issues, including sanctions for failure to maintain maintenance records. Inman v. Howe Freightways, 2019 Ill. App (1st) 172459

A motor carrier was successful in obtaining summary judgment on all claims but wantonness in the Middle District in Alabama. The court held that there was sufficient evidence for a jury to consider that the driver was wanton in operating his vehicle without sufficient sleep. The court held that under Alabama law the plaintiffs had not presented sufficient evidence to create a dispute of fact as to whether the driver was legally incompetent to operate a vehicle safely which allowed the court to give the defendant judgement on both Plaintiffs’ negligent/wanton entrustment claim and their negligent/wanton hiring, training, supervision, and retention claim. Williams v. Hickox, 2019 WL 2353049.

Despite a delay in releasing information on her expert, the plaintiff in a personal injury action was given permission to present an expert on the psychological impact of the truck accident she was in. The Middle District in Pennsylvania denied the motion in limine filed by the motor carrier. Hill v. Graen, 2019 WL 2433643

The Western District of Texas agreed that a plaintiff was not permitted to assert direct negligence claims against a motor carrier when the motor carrier was liable for the actions of the drive under the theory of respondent superior. The court also rejected the plaintiff’s claim for gross negligence, rejecting the argument that that the driver was grossly negligent because he had actual, subjective awareness of the risk involved and proceeded in conscious indifference to the rights, safety, or welfare of Plaintiffs. Neddo v. New Prime, 2019 WL 2549231

Summary judgment was granted to a bus driver by the Appellate Division in New York in his suit against a truck driver. The court held that the truck driver was negligent in striking the bus from behind on highway, where bus became disabled several hours prior to accident, bus driver parked bus completely within berm of highway and placed emergency reflective tripods on roadway behind bus while he waited for tow truck. The driver admitted following the accident that he was tired and must have fallen asleep behind the wheel. Liu v. Lowe, 2019 WL 2439770

Plaintiff’s efforts to seek to hold a trailer owner liable for a truck accident were unsuccessful in the Northern District of Mississippi. The court granted judgment on the pleading on independent liability and punitive damages claims against the defendant concluding that the plaintiff failed to allege sufficient facts to support such claims. Lee v. Goodlin, 2019 WL 2492282

The Middle District in Arkansas dismissed a personal injury action against a truck driver, concluding that there was no basis for jurisdiction over the driver who was domiciled in Texas. The fact that the driver went into Arkansas to deliver cargo was insufficient to confer general jurisdiction when the accident occurred in Texas. Biddle v. Bradshaw, 2019 U.S. Dist. LEXIS 100994

The Middle District of Pennsylvania denied a motor carrier’s request to dismiss a claim for punitive damages, concluding that it was premature based upon the facts as alleged. It did grant the carrier its request for a more definitive statement, permitting portions of the complaint to be stricken. Patrick v. Dutch Maid Logistics, Inc. 2019 U.S. Dist. LEXIS 101671

While a motor carrier is not vicariously liable for the gross negligence of a driver, it can be liable for its own gross negligence. The fact that the driver received 4 warning letters for exceeding maximum run times could possibly support a claim of gross negligence. While the Northern District in Texas dismissed the vicarious liability claim for gross negligence it would not dismiss the direct gross negligence claim. Aranda v. YRC Inc., 2019 WL 2357528

What information can you get from a motor carrier when seeking discovery relevant to the fitness of a driver following a truck accident? The Western District of Kentucky went through a litany of requests. Good review to see what they will and will not be required to produce. J.B. Burrell v. Duhonm, 2019 WL 2319525

The District of Columbia granted summary judgment to a motor carrier on direct negligence claims when the motor carrier accepted vicarious liability for the actions of the driver. The Court denied the plaintiff’s request to amend the complaint to add a claim for punitive damages based upon the driver’s driving record. In the seven years before he was hired the driver had six citations for speeding and other traffic infractions which would not disqualify him. The court held that there was no basis to assert that the motor carrier acted with evil intent, actual malice, or with reckless disregard for the safety of other when it hired, retained and entrusted its truck to the driver. Greene v. Grams, 2019 WL 2410947

Broker liability was again the source of discussion, this time in the District Court in Maryland. The court denied the defendants efforts to have a complaint dismissed on FAAA grounds. The court held that there were questions of fact as to whether the defendant was acting as a broker or a carrier. The court also noted that the plaintiff alleged that even as a broker the defendant could still be liable for negligence selection because of the out of service reports on the motor carrier which were publicly available. With respect to the motor carrier the court held that the plaintiff failed to establish a claim for intentional infliction of emotion distress or punitive damages and dismissed those causes of action. Ortiz v. Ben Strong Trucking, 2019 WL 2492812

In a related case the insurer for the trucker was permitted to deposit its one million dollar policy into the court for the loss. The court ruled that the insurer would be released from any further indemnity obligation but would have to continue to defend the motor carrier. Amguard Ins. Co. v. Ortiz, 2019 U.S. Dist. LEXIS 94643

The US Government was unable to support a defense of emergency when a military vehicle struck a tractor-trailer which was forced to stop to avoid another vehicle. The court in the Western District of Washington held that failing to adequately reduce speed in the face of a brake light does not constitute a helpless peril. The defendant was liable for the accident. Ream v. USA, 2019 WL 2191879.

A default judgment on liability was entered against a motor carrier in a personal injury action seeking damages for a fatality. The Northern District in Alabama did refuse, however, to grant a default on a claim for negligent entrustment or punitive damages. The matter will proceed to trial on the punitive damages issue. Peace v. Rock, 2019 WL 2578079

In a lengthy opinion the Eastern District of New York concluded that a primary insurer did not act in bad faith in failing to settle a truck accident claim within the policy limits, subjecting the excess insurer to exposure. The court held that the fact that the primary insurer “may have greatly overestimated the likelihood that its policyholder would not be found liable for the accident is indicative of an error in judgment, not bad faith” Ohio Casualty Insurance Co. v. Twin City Fire Ins Co. 2019 WL 252527

One motor carrier was successful in convincing the Northern District in Indiana to grant it a new trial following a one million dollar verdict. The court concluded that the medical evidence simply did not support such a verdict. Plaintiff had the option of a new trial or accepting a reduction of the judgment to $250,000. Spinneneweber v. Laduver, 2019 WL 2591017

Worker’s Compensation

Was a temp an employee or not when he was injured doing a service outside the scope of his contracted services? The Supreme Court of Alaska reversed the grant of summary judgement to the motor carrier, concluding that there were questions of fact on whether he was an employee, and whether the actions were outside the scope of special employment, and therefore subject only to worker’s compensation. Buckley v. American Fast Freight, Inc. 2019 WL 2556486

The District Court in Idaho concluded that a truck driver was not prevented from pursing a third party for injuries suffered during a delivery. While the defendant argued that it was a statutory employee for the purposes of the worker’s compensation exclusive remedy defense the court concluded otherwise. Schuler v. Battelle Energy Alliance, LLC. 2019 WL 2477609

Thanks for joining us,

Jean & Chad

May 2019

CAB Bits & Pieces May 2019

Good Day CAB Nation!

As the saying goes, April showers, bring May flowers. However the erratic weather in parts of the country has done little to make it feel like summer is here to stay.

If you’re like my family, you’re in the midst of the end of the school year, which brings graduations and commencement ceremonies for the younger generations. We at CAB would like to wish all of the graduate’s success and a wonderful future as they take steps toward the next phase of their lives and careers.

Follow us at: CAB LinkedIn Page CAB Facebook Page

Have a great month!

CAB’s Tips & Tricks:

You may have noticed we’ve changed the layout of Carrier Central in the last couple weeks. You’ll note that we’ve added a Contact Radio Button which includes a drop down box with three options. Specifically, users now have a central area to search for phone numbers, email addresses and representatives.

You may have also noticed we’ve added a filter tool (orange arrow below) for search results in Carrier Central. This allows you to quickly filter your results via words or phrases once the search results are returned. This filter tools is also available in My Workspace. This enhanced functionality was put in place to provide additional speed and efficiency when searching for motor carriers.

We’ve also added a new training video to our ever expanding line up.

SALEs-This 15 minute web video provides an overview of the functionality and features of the SALEs lead generator tools. By reviewing the video you will get a better understanding of the SALEs features and learn tips to help you get the best results while using this powerful too. To view the webinar, click here.

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:

IMUA and CargoNet release U. S. Truck Stop Cargo Theft Data. Trucks stops are target rich environments and are spread all over America’s highway system. This reports provides data from 2012-2018 broken down into 4 major regions and 9 divisions. The report notes in the introduction “It is hoped that by highlighting certain common threads shippers, their trucking companies as well as individual drivers can make informed decisions on routing and stops for convenience, fuel or meals.” The report also details 9 Best Practices for protecting cargo. The full report can be downloaded here.

CAB CEO appears on IMUA Panel: Jean Gardner addressed emerging trends and challenges facing the trucking industry earlier this month at the IMUA Conference. Additional members of the panel were Ben Tuttle of Tokio Marine and Ron Wallace of Sompo. The panel discussion was tremendously informative and packed with interesting points. The session was facilitated by AM BestTV and can be viewed by clicking here.

FMCSA Moves Forward with Under 21 Driver Program : The FMCSA continues to move forward with the proposal that would allow younger drivers to operate commercial motor vehicles across state lines. The agency announced their intention via Federal Register Notice on May 14th. The FMCSA is asking for public comment on the 18-20 yr. old proposal. The notice is requesting comment from stakeholders regarding this Federal Register Notice. The Federal Register Notice can be reviewed here.

International Roadcheck Set for June 4-6. Every year, for a 72 hour period the Commercial Vehicle Safety Alliance International Roadcheck focuses on a specific category of violations. This year’s emphasis is on steering and suspension systems which are a critical part of the overall safety system within a commercial motor vehicle. During the 2018 Roadcheck, 67,603 roadside inspections were conducted on large trucks and buses, the CVSA reports. From all inspections, inspectors identified 11,910 vehicles with out-of-service conditions and 2,666 drivers with out-of-service conditions. Of the North American Standard Level I Inspections conducted, 21.6% of commercial motor vehicles were placed out of service. The top vehicle out-of-service conditions were for brake systems (28%), tires and wheels (19%), brake adjustment (19%), and cargo securement (13%). Of the total number of drivers receiving a Level I, II or III inspection, 3.9% were placed out of service for driver-related violations. The top driver out-of-service conditions were for hours of service (1,328), wrong class license (649) and false record of duty status (309). Hours-of-service violations was the top reason drivers were placed out of service during the 2017 and 2018 International Roadcheck enforcement periods. There were 729 safety belt violations. For more information on this year’s Roadcheck, click here.

Everyone wants to get involved with the Hours of Service Changes: Representatives from the Trucking Industry met with the Office of Management & Budget to discuss Proposes HOS Regulations recently. The representatives included national trucking associations and agricultural focused stakeholders. The meeting took place ahead of the expected release of proposed HOS rules changes that are expected in early June. To make things even more interesting the House Appropriations Bill included a number of trucking related provisions including eliminating funding to enforce any rule that eliminates the 30-minute rest break or review or issue any decisions on petitions to preempt state meal and rest break laws that may differ from Part 395.

There are currently 22 states with Active Emergency Declarations, Waivers, Exemptions and Permits: These declarations might be related to national emergencies, wild fires, weather, fuel shortages and the like. To provide vital supplies and transportation services to a disaster area in the United States, emergency declarations may be issued by the President, Governors of States, or FMCSA. These declarations trigger the temporary suspension of certain Federal safety regulations, including Hours of Service, for motor carriers and drivers engaged in specific aspects of the emergency relief effort. An Emergency Declaration is limited to a maximum of 30 days unless extended by the FMCSA itself. For more information on specific declarations across the country, click here.

The FMCSA is Seeking Input on Testing Vehicles with Automated Driving Systems (ADS). The National Highway Traffic Safety Administration and FMCSA today issued advance notices of proposed rulemaking on the removal of unnecessary regulatory barriers to the safe introduction of automated driving systems (ADS) vehicles in the United States. NHTSA and FMCSA are seeking comments at this stage to ensure that all potential approaches are fully considered as the agencies move forward with these regulatory actions. For more information or to provide input, click here.

CASES

Cargo
A transportation broker was successful in defeating a cargo claim asserted against it in the Southern District of Texas. The court held that the broker bore no liability under the Carmack Amendment and that state law claims were preempted. The broker was held not to have a duty to insure that the motor carrier had insurance for the cargo which was being carried. Enbridge Energy, LP v. Imperial Freight, Inc. 2019 WL 1858881

Preemption was once again an issue, this time in the District Court of New Mexico. The court allowed plaintiff an opportunity to amend her complaint for cargo loss to allege a claim under the Carmack Amendment, which provides the exclusive remedy, as we repeatedly report. Rehburg v. Bob Hubbard Horse Transportation, 2019 WL 1995292

Carmack and preemption again! The Southern District of Alabama denied a plaintiff’s request to remand a claim for damage to goods in interstate commerce. The court, correctly, concluded that it had jurisdiction and no other claim, other than one under the Carmack Amendment, could be pled. Rollason v. ITX, 2019 WL 2110575

One motor carrier was lucky in the Southern District of Ohio when the court agreed to vacate the default judgment entered against for a cargo loss. The court held that the motor carrier had possible defenses to the Carmack action and the failure to respond to the suit would be excused. Allen Lund Company v. Captain Freight, LLC, 2019 WL 1003872

Finally a fight over excessive tow bills for a cargo loss. Unfortunately the Northern District of Illinois held that it would not exercise jurisdiction over a complaint for declaratory judgement on whether the fees were reasonable. The court held that under West Virginia law, the Public Service Commission is statutorily vested with the authority to remedy the dispute and dismissed the complaint. AGCS Marine Ins. Co. v. Bill Warner & Son Towing & Recovery, 2019 WL 2169180

The Court of Appeals of Ohio addressed the evidence needed to show that a prima facie claim for recovery was established by the claimant. The motor carrier disputed that the claimant had met its obligation. It is an interesting issue that comes up over and over again when the cargo is used machinery. The court held that the burden was not met for some of the machinery when there was only evidence that the machine was operational at a time well before pick up. Downtime Rebuild, LLC v. Trinity Logistics, Inc., 2019 WL 2128447

Greyhound was unable to sustain its burden of establishing that it properly limited its liability for a cargo loss. The Appellate Term in New York held that there was no evidence that there was a written agreement between the parties agreeing to the limitation. Jones v. Greyhound Express Port Authority. 2019 WL 2148470

A broker was unable to force the parties into arbitration to determine liability for a cargo loss. The Northern District in Illinois refused to allow the broker to rely on a broker carrier agreement which was not entered into until after the loss. The contract did not state that is applied to prior shipments and therefore was not applicable to the claim at issue. Austin Freight Systems, Inc. v. West Wind Logistics, Inc., 2019 WL 2088056

Does one party bear responsibility for failing to declare a value for a shipment which is later lost in transit? The Superior Court in Pennsylvania, after vacating a default entered against a shipper, concluded that the shipper was entitled to summary judgment in an action commenced by the consignee for the transit loss. The court held that the shipper’s arrangement of the transportation was only for the convenience of the consignee and therefore did not give rise to a claim. The shipper did not have a legal duty to obtain insurance on the consignee’s behalf. Even if it did, the court held that the failure to obtain insurance did not cause the harm. Cannon v. The Racing Engines, 2019 WL 1896511

Auto
Most defendants will try to get out of an action commenced in Philadelphia County in Pennsylvania. The Superior Court in Pennsylvania held that it was not an error to consider a revenue report generated by the motor carrier to show that it did not have substantial revenue from the state. The court held it was a trustworthy report. Brown v. Auborn, 2019 2027221

The Court of Appeals in Michigan determined that plaintiff failed to assert any fact which showed gross negligence on the part of a truck driver when the driver’s vehicle struck the plaintiff’s vehicle. The court held that establishing that the defendant violated the vehicle code only created a rebuttable presumption of negligence and that the CDL manual does not contain enforceable rules, the violation of which would be negligent per se. Nothing to support gross negligence was alleged. Kano v. Jacobson, 2019 WL 2235497

Where should the action be heard? The Supreme Court in Alabama refused to order the transfer of truck accident suit to a different venue, one where the accident occurred. In this case the court held that the carrier has failed to show that in the interest of justice and under the guise of forum non convenience the case should be transferred to another venue. Ex Parte Tyson Chicken, 2019 WL 2240147

A judgment in excess of 3 million was upheld against a shipper who improperly loaded a coal truck resulting in an overturn and serious injury to the plaintiff whose vehicle was buried under the coal. The court agreed that there was no evidence that the truck driver was at fault, therefore no reason to apportion the percentage of fault. Infinity Energy, Inc. v. Billy Henson, 2019 WL 2246607

An insurer’s payment for property damage which reduces the amount available for personal injury claims does not make the tortfeasor under insured under North Carolina law. The plaintiff was unable to recover UIM payments from his own insurer as the motor carrier was properly insured for 1 million in total coverage. Berkley Regional Insurance Co. v. Bernick-Odom, 2019 WL 2236064

The District Court in New Mexico agreed to stay a civil trial pending resolution of criminal proceedings against a truck driver arising from a hit and run accident. The court held that plaintiff could continue with certain discovery and that it would then revisit the potential for punitive damages against the driver. Yazzie v. Fezatte, 2019 WL 1865204

Can you force all parties involved in an accident to be part of a lawsuit and assert claims against each other? The Southern District in Ohio concluded that a trucking company could not compel a defendant, the driver who struck the truck, to file a counter-claim, nor could the defendant compel other injured parties to join the suit. Only the truck driver could be joined as a necessary party, since the truck driver had asserted claims against the defendant. Danny Herman Trucking v. Boulware, 2019 WL 1055822

When a broker was granted summary judgment on the pleadings in an action seeking damages from a truck accident the District Court in Nevada held that the broker was not entitled to attorney’s fees and costs based upon a previously filed and rejected offer of judgment. The court held that the broker failed to establish that the rejection of the offer was unreasonable when the damages were high and there were arguments which might have impacted the preemptive effect of FAAA. Miller v. CH Robinson, 2019 WL 1903389

A truck driver was not successful in recovering for future damages after his foot was run over by the shipper’s fork lift when an employee was attempting to shift a load. The Southern District in West Virginia also held that there was insufficient evidence to support a claim for punitive damages against the shipper. Billings v. Lowe’s Home Center, LLC 2019 WL 1869936

Does a motor carrier bear risk of direct liability for a rear end truck accident when it admits liability for the actions of the driver? The District Court in Arizona held that it could bear independent liability. In this case, however, the plaintiff could not support any factual allegations of negligent hiring, training or supervision against the motor carrier. The driver was held to be negligent per se for the rear end hit. However as there remained a disputed issue on causation plaintiff was not entitled to summary judgment. Contreras v. Brown, 2019 WL 1980837

According to the Middle District of Pennsylvania there were too many questions to permit summary judgment against a trucker in a suit seeking damages for a multi-party snowy accident. When two of the three parties claimed the truck driver was at fault the jury would get to decide the issue. With plaintiff’s agreement, however the court dismissed claims for punitive damages, negligent hiring and entrustment against the motor carrier. Barry v. Wheeler, 2019 WL 1922086

In another multi vehicle accident the Superior Court in Pennsylvania upheld the trial verdict that the accident was caused by the bus company. The court held that the trial court did not abuse its discretion in its exclusion of certain admissions by the truck driver or its denial of a mistrial, that the evidence was sufficient to support the jury’s punitive damages verdict, and that the bus defendants’ claim of error with respect to expert testimony was barred by waiver. Livingston v. Greyhound Lines, Inc. 2019 WL 1891130

The fight continues in an action pending in the Eastern District in Louisiana where the motor carrier claims that the plaintiffs’ intentionally caused the accident in order to seek recovery against the motor carrier. The court agreed to exclude some, but not all, of the defendant’s witnesses who would testify about the possible staging of the accident and would allow the plaintiffs to show that other complaints it filed resulted in settlements. The court also addressed the admissibility of video surveillance, past convictions of the plaintiffs and police reports. Thomas v. Chambers, 2019 WL 989236

A shipper seeking coverage under a motor carrier’s auto policy for injuries to a driver was denied relief. The Court of Appeals in Wisconsin agreed that the employment exclusion precluded any insurance coverage to shipper and that the insurer had no duty to defend or indemnify. Society Insurance v. Friedle, 2019 WL 1997284

What comes first in evaluating payment for a PIP claim, when there is a personal auto policy, a bob-tail policy and a trucker’s policy? The three insurers moved for summary disposition. The Court of Appeals in Michigan affirmed the trial court ruling that the personal automobile policy was not first and that the motor carrier’s policy, which did not specifically schedule the vehicle also did not apply, denying the argument of the bob-tail insurer that the vehicle should have been considered an after acquired vehicle under the motor carrier’s policy. The bob-tail insurer was left with the coverage. Youhanna v. Auto Club Insurance Association, 2019 WL 19824717

How extensive can a cell phone request be? The Western District of Oklahoma required production of cell phone records for the twenty-four (24) hours prior to the accident and two hours after the accident and that the records to be produced be limited to records containing incoming and outgoing call and text logs and logs of application use. The new discovery search is to see if there are issues with phone usage during rest time and times of operation to show a pattern of improper action. Kizer v. Starr Indemnity, 2019 WL 2017556

A motor carrier’s efforts to have allegations in a complaint dismissed failed in the Eastern District of North Carolina. While the motor carrier was successful in obtaining confirmation that punitive damages were sought against the driver and not the motor carrier it was unsuccessful in striking allegations concerning criminal proceedings and specific allegations on safety obligations. Williamson v. J.B. Hunt, 2019 WL 1995238

The Middle District of Pennsylvania only afforded partial relief to a trucking company, dismissing counts in a complaint which alleged causes of action for outrageous, wanton, reckless, or gross indifference to the safety of the plaintiff as the court determined that there was no distinction in causes of action for different forms of negligence. However the plaintiff was permitted to continue with causes of action for reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct, and punitive damages. White v. Tomasz, 2019 WL 2119982

The Northern District of Alabama partially denied a request for summary judgment by a truck driver following his accident with a bus in which a passenger was injured. The court held that there were genuine issues of material fact regarding negligence and causation, concluding that the passenger, who was working with the bus driver, could not be responsible for the actions of that driver. Moreover the fact that the defendant was successful in defending a claim by the bus company did not bar the plaintiff from litigating the issue. The court did dismiss the claims for wantonness, and negligent entrustment and supervision against the driver’s employer, a decision accepted by the plaintiff. Miles v. Celadon Group, 2019 WL 2206441

What claims can be brought in Pennsylvania following a truck accident. The Middle District of Pennsylvania held that claims of conduct which was outrageous, wanton, reckless, or done with gross indifference to the safety of the plaintiff would be dismissed because they were only negligence claims in other forms. The defendants’ motion to dismiss the causes of action alleging reckless conduct, recklessness, gross negligence, reckless indifference, wanton conduct, and outrageous conduct, as well as the plaintiffs’ request for punitive damages, were denied. White v. Trybala, 2019 WL 2119982

The Superior Court in New Jersey held that Section 9.1 of the New Jersey Automobile Reparation Reform Act provides insurers, which have paid personal injury protection (PIP) benefits to their insured, with the statutory right to seek reimbursement against certain tortfeasors. If the tortfeasor is insured, the determination whether the insurer that paid the PIP benefits is entitled to recover those payments and the amount of the recovery is by agreement of the parties, and, if they are unable to agree, by arbitration. In this case the court held that the question of whether a party was actually a tortfeasor was also subject to arbitration. Liberty Mutual Ins. Co. v. Penske Truck Leasing, 2019 WL 2218939

The Southern District of Alabama granted summary judgment to a driver on a complaint which was filed late against the truck driver. The court held that lapse of nearly 12 months between the initial disclosure of the name of the driver and the motion for leave to amend established that plaintiff did not exercise reasonable diligence and move to amend within a reasonable time period as required under Alabama law. Figgers c. Carroll Fulmer Logistics Corp., 2019 WL 2163613

The District Court in Arizona held that an estate can recover future economic losses in a survival action where the decedent died immediately, and the claim for future loss of income was not too speculative. The court denied the motor carrier’s motion to dismiss those claims. The court also held that the plaintiffs were precluded from asserting any claim at trial premised on a theory of negligent hiring or negligent training or from seeking damages based upon the decedent’s pain and suffering or future wages asserted by his mother or wife as part of a wrongful death action as they were not the proper party to recover for those claims Manion v. Ameri-Can Freight Systems, Incorporated, 2019 WL 2184763

The Court of Appeals in Kentucky upheld summary judgment granted to a trucker’s insurer in a bad faith suit by an injured plaintiff. The court held that the insurer acted reasonably in not settling early in the case and even increasing reserves during discovery was not improper as new evidence was being learned which impacted the reserve. Corio v. National Specialty Insurance Co., 2019 WL 2157579

When there is a multiple vehicle accident a defendant, in this case the trucking company was permitted to bring a third party action against other parties who may have born some liability for the loss. The Eastern District of California held, however, that the trucker needed to only bring in parties who might be liable to the trucker, and not any just other possible claimants. Gonzalez v. JAG Trucking, 2019 WL 1994464

Thanks for joining us,

Jean & Chad

 

© 2019 Central Analysis Bureau