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Bits & Pieces

January 2019

CAB Bits & Pieces January 2019

Good day CAB Nation!

So far it’s a pretty chilly start to 2019. We hope everyone is staying safe and warm. Most of the country, including the warmer parts where northerners tend to frequent during this time of year has experienced unseasonably cool weather. It was recently announced that the FMCSA was expanding its emergency declaration to 22 states as the polar vortex descends into much of the Midwest and Northeast. The agency has suspended some regulations including hours of service for those transporting heating fuels in those areas. This is a perfect example of why trucking and our road infrastructure is so important. We’re thankful for the drivers that brave the conditions to deliver the vital goods, commodities and services needed to keep us all warm, fed and safe during a serious weather event like this. Kudos to the trucking companies and their drivers!

Keep in mind that we will be sharing pertinent industry information throughout the year. Follow us at: CAB Linkedin Page CAB Facebook Page

CAB’s Tips & Tricks:

This month we’re focusing on the BASICs Calculator. The BASICs Calculator has been available for about two years, but we are constantly enhancing features to make it better. The BASICs Calculator can be found under the tab.

The BASICs calculator was originally designed for loss control, safety representatives and risk management staff but has since been adopted by other CAB users to help them identify the “diamond in the rough” carriers. By using this tool to identify what drives the current scores, users are able to define the questions they can ask to address weather the carrier has taken the necessary steps to improve their operation’s risk profile. This allows CAB users to work closely with a motor carrier that may have been declined and to demonstrate interest in working with the motor carrier in order to cement a long term relationship. Below we have identified a few of the premier features of the BASICs Calculator.

  • Filter and sort by vehicle, driver (w/ SMS PIN) and BASIC category
  • Quickly identify and rank VINs and Drivers with high violation and point counts.
  • Filter and recalculate BASIC Scores to determine how vehicles, drivers, individual inspections and violations affect BASIC and ISS Scores.
  • Easily determine which vehicles, drivers and violation categories are contributing to the Motor Carriers BASIC scores.
  • Identify violation categories that if addressed could reduce the BASICs scores the greatest. (Low hanging fruit) As an example, what would the Unsafe Driving BASIC look like if we removed the Speed 2 & Speed 3 violations?
  • This tool is very useful to determine how removing a violation or inspection will affect the BASIC score when completing DataQs.

If you have nay questions related to the BASICs Calculator or other CAB Tools and Resources, please do not hesitate to give us a call or send us an email.

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:

Bureau of Labor Statistics reports on Workplace Injuries and Illnesses Resulting in Job Transfer or Restriction: Workers who suffer severe injuries or illnesses on the job may take days away from work to recover, or they may return to work immediately in a different job or with restricted tasks. The type and severity of the injury affect whether a worker takes time away to recover, returns to work on light or restricted duty, or transfers to another job while they recover. In 2017, sprains, strains, and tears were the most frequently occurring injuries resulting in lost worktime, transfer, or restriction in five of six industries studied. More of these cases resulted in days of job transfer or restriction than days away from work in crop production; transportation equipment manufacturing; and amusement, gambling, and recreation. In truck transportation, however, more of these injuries resulted in days away from work than job transfer or restriction. See the complete article here.

The Bonnie and Clyde of the Trucking World. “When it comes to Melinda and Elliot Campbell—think Bonnie and Clyde. But rather than rob banks, the Campbells targeted the trucking industry. The couple’s con went as follows: they created fake shipping companies, persuaded third parties to hire them to deliver cargo, and then held the shipments as hostage until the third parties paid ransom for the deliveries. The government charged the Campbells with six counts of wire fraud, one count of conspiracy to commit wire fraud, and one count of conspiracy to commit extortion. After a five-day trial, a jury convicted the Campbells.- They appealed and lost US v. Campbell, 2019 WL 193915. It goes to show that crime doesn’t pay, but it comes in all forms.

Federal Motor Carrier Safety Administration Proposes Reference Changes to Hazardous Materials Safety Permits: The FMCSA is proposing to reference the updated Commercial Vehicle Safety Alliance (CVSA) handbook as part of the requirements for motor carriers who are required to possess Hazardous Materials Safety Permits.

The Out-of-Service Criteria provide uniform enforcement tolerances for roadside inspections to enforcement personnel nationwide, including FMCSA’s state partners. Currently, the regulations reference the April 1, 2016, edition of the handbook. The FMCSA is proposing to incorporate by reference the April 1, 2018, edition.

Carriers are required to carry Hazardous Materials Safety Permits for certain highly hazardous materials, including highway route-controlled qualities of radioactive materials. Section 385.415(b)(1) requires that motor carriers ensure a pre-trip inspection is performed on each motor vehicle to be used to transport a highway route-controlled quantity of a Class 7 (radioactive) material, in accordance with the CVSA handbook.

Wind Chill is a Very Real Hazard for the Trucking Industry. The show must go on. Deliveries must be made, however with the bitter cold upon us; even the United States Post Office has opted to suspend deliveries in some areas of the Polar Vortex. Below is an infographic of the hazard.

Infographic_WindChillHazards-01.png

The Top Ten Causes of Accidents Involving Commercial Motor Vehicles. The list below is according to the 2016 Large Truck and Bus Crash Facts, which is the most recent data available. This information reiterates the importance of safety training and safety culture in a motor carrier. Management needs to communicate and understand their employees to better relate to the issues they’re facing personally and professionally.

1.    Illegal Drug Use (26%)
2.    Speeding (23%)
3.    Unfamiliar Territory (22%)
4.    Prescription and Over-the-Counter Medications (18%)
5.    Failure to Check Blind Spots (14%)
6.    Driver Fatigue (13%)
7.    Failing to Signal a Turn (9%)
8.    Distracted Driving (8%)
9.    Negligent Driving (such as underestimating distance between two vehicles) (7%)
10.  Aggressive Driving / Road Rage (7%)

Commercial Auto has a Rough Road Ahead: Commercial auto has always been tricky. Insurance markets have always entered and exited different segments of the industry. However, commercial auto is getting more difficult to insure and markets are becoming very selective as liability losses can climb dramatically. As the graph below indicates, FMCSA data shows crash frequency and fatalities are rising.

The results are the tightest segment of the commercial auto market is the middle. There are numerous markets available for preferred risks and distressed risks, but as a result there are very limited markets for risks with a few losses. This is resulting in sticker shock across the industry.

What can agents do? Communicate more with the motor carrier even when the news is less than ideal. Discuss renewals sooner and set expectations so there is time to explore more options in the market place. Know the insured by understanding their business, history and helping the insured mitigate liability exposures will facilitate a stronger submission.

Interesting Tidbits:

Trucker Named Highway Angel for Saving Small Child: Missouri-based truck driver Mike Johnson has been named a Highway Angel by the Truckload Carriers Association for rescuing a small child that was found alone in a ditch in the early morning hours of July 13, 2018. Johnson noticed a small child in only a diaper standing up in a ditch. He stopped his truck and has he approached, the child ran. Johnson was able to catch and comfort the child while notifying authorities. The child was taken to a local hospital and reunited with his mother. This is another example of how truck drivers work to keep us safe on the road every day. Kudos Mike Johnson!!!

Officials Issue Warnings after Semi Truck ‘Ice Missile” Injures Motorist: On January 22 in Pennsylvania, a motorist was severely injured by a chunk of ice that fell off of a semi-trailer while traveling on I-80. The ice chunk flew off the top of the trailer, struck the car’s windshield and left a male passenger so injured he was later airlifted to a nearby hospital. Local rescue officials are asking drivers to remember to clean the vehicles off completely before driving. However, drivers note this is more difficult than it seems. PennDOT notes that newly enacted laws allow for a fine of $200-1000 for each offense if ice or snow falls from a vehicle.

National Transportation Safety Board’s Work Limited during Government Shutdown: During the governmental shut down, 367 NTSB employees were furloughed, 26 were exempted and 4 investigators were recalled without pay to support the investigations of three international aviation accidents. However agency staff was not sent to numerous other aviation crashes (15) or other major highway (7), rail (2) or marine crashes (3). Ultimately dozens of crashes occurred where the agency would have sent staff, if not for the partial government shutdown. Future investigations may result, but perishable evidence may be permanently lost. Additionally, 1,913 ongoing investigations were halted due to the partial shutdown.

Current Cases

Auto

A jury verdict of $1.925 was upheld against a trucker in the Appellate Division in Illinois. The trucker argued that he struck the decedent cyclist after the decedent had already been hit and killed. The court accepted the jury determination that it was the trucker who caused the injury. Scow v Berrien, 2018 IL App (1st) 180422

When a plaintiff failed to allege sufficient facts to support her claims against a trucking company for a personal injury loss, the causes of action were dismissed. The court held that under Alabama law, the torts of negligent or wanton entrustment, hiring, training, supervision, and retention all require a plaintiff to show an employer knew or should have known its employee was incompetent. Plaintiff, after two attempts at crafting a complaint, failed to allege sufficient facts to support those claims. Hawes v. Bailey 2019 WL 112211

Interesting issue – A trucker hires a private investigator to surveil a plaintiff in a different state. The investigator is not licensed in the state where he follows the plaintiff. The Western District of Louisiana denied the plaintiff’s motion for sanctions, concluding that, under the facts and circumstances of this particular case, sanctions were not warranted where there was no indication that the defendants or their counsel knowingly violated the statute at issue, acted in bad faith, or willfully abused the judicial process. In addition, video recording the plaintiff while he was talking to his lawyer was not a violation of Louisiana Rules of Professional Conduct. That privilege protects communications. Franco v. Mabe Trucking, 2019 WL 97044

The District Court in Puerto Rico held that the USA was entitled to sovereign immunity in an action in which the plaintiff sought damages for injuries suffered in a truck accident when the motor carrier was hauling mail for the USPS. The court held that the carrier was an independent contractor and therefore the government was not responsible for his actions. Colon v. USA, 2019 WL 165578

One shipper was found liable for overloading a gravel and rock truck which resulted in cargo hitting and seriously injuring the plaintiff. The Court of Appeals in Minnesota upheld the verdict against the shipper and also remanded the case back for a further determination on whether the plaintiff had a right to assert a punitive damages claim against the shipper. The plaintiff had already settled with the motor carrier. Lien v. Casper Construction, 2019 WL 178454

The cases are all over on this issue – are claims against broker’s for negligent hiring preempted? The District Court in Arizona concluded that there were not, allowing a negligent hiring claim to proceed. The Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) did not preempt the claim. The court held that negligent hiring claims are generally applicable state common law causes of action that apply to a wide variety of industries and do not impact the ability to regulate prices, routes or services. Nyswaner v C.H. Robinson Worldwide, Inc. 2019 WL 95896

A lot of broker cases are coming down the pike this month. The Western District of Missouri denied a broker’s motion to dismiss a claim which sought recovery from the broker as part of a joint venture with the motor carrier. The Western District of Missouri held that sufficient facts were alleged by the third party plaintiff that there was 1) an agreement; 2) a common purpose; 3) community of pecuniary interest; and 4) equal right of control between the trucker and the broker. Ellsworth v. K&B Transportation, 2019 WL 137616

The Appellate Division in Illinois held that a truck broker bore no liability for a truck accident which occurred after a transport was completed. The Court held that there was no agency or hiring relationship between the broker and the carrier, the motor carrier was not on the broker’s premises, using his equipment, or acting under the direction of the broker and had completed its contracted-for work at the time of the accident. Brettman v. M & G Truck Brokerage, Inc., 2019 IL App (2d) 180236, 2019 WL 244623

The Supreme Court of Nebraska granted summary judgment to a truck broker in an action arising from a multi-fatality accident. After settling with a trucking company and its driver plaintiff’s continued the suit against the broker. The driver has been found to have been driving longer than permitted under applicable law, had consumed alcohol less than 4 hours before going on service, had a criminal history relating to the operation of motor vehicles, including driving on a suspended license, driving without a license, and driving under the influence of alcohol. The court granted judgment to the broker concluding that its relationship with the driver was that of an independent contractor as it had not exercised undue control over the driver’s operations and that there was no liability under the independent contractor relationship and as a broker of the load was not responsible for Johnson’s hiring, training, or supervision. Sparks v. M&D Trucking, 301 Neb. 977

A motor carrier was successful in having a suit for personal injuries transferred to Oklahoma where the accident occurred. The fact that the plaintiff alleged negligent hiring and training against an Alabama trucking company was insufficient to overcome the facts which supported transfer to the venue of the situs. Clark v Winston Trans, Inc. 2019 WL 157740

A father who failed to support his child and was incarcerated for most of his son’s life was not permitted to seek damages following the death of his son in a motor vehicle truck accident. The Second District in California concluded that the father lacked standing to sue when there was no relationship with the decedent. Island v. FedEx Freight, 2019 WL 92080

When a wife filed a separate suit against a trucking company for loss of consortium stemming from a truck accident injuring her husband and alleged damages less than $75,000 the District Court in South Carolina refused to entertain jurisdiction and sent the case back to state court, even while it was still hearing the husband’s direct claim. Sparks v. Edward Davis, 2019 WL 168487

The Eastern District of Pennsylvania held that a motor carrier was entitled to summary judgment on negligence claims arising from personal injuries suffered during a “road-rage” incident where the driver exited the vehicle owned by the motor carrier and allegedly physically assaulted the plaintiff. The court held that the driver was not acting within the scope of his employment during this incident, and the motor carrier did not know of his violent propensities. Nelson v Loftus, 2019 WL 175127

While a 10 month delay in notifying an insurer of a loss was an unreasonable delay, where the insured may not have reasonably expected the suit an insurer was not granted summary judgment for breach of the notice provision in the policy. In addition, the insurer was not permitted to rely on the employee exclusion when the driver was an independent contractor. Canal Insurance Co. v. Butler, 2019 WL 277361

The Eastern District in Texas held that the driver of a tractor-trailer was not the statutory employee of the logging company who hired him following a serious truck accident. However the claims for vicarious liability and statutory employer liability under Texas Regulations were permitted to proceed. Davis v. International Paper Company, 2019 WL 183904

The Western District in Oklahoma held that a plaintiff was entitled to receive portions of the claims comments in a file regarding a tractor-trailer accident because they were prepared in the normal course of business and not directly in anticipation of litigation. The information was not protected by the work-product doctrine. Annese v. U.S. Express, 2019 WL 191654

Claims for negligent hiring, entrustment, training and supervision, are simply not permitted when a motor carrier admits that its employee was acting in the scope of his employment at the time of the accident, and the plaintiff does not have a viable claim for punitive damages against the employer. The Eastern District in Pennsylvania granted summary judgment to the motor carrier Pineda v. Chromiak, 2019 WL 175135

A motor carrier’s removal of an action to federal court, without a written consent to the removal by the codefendant, was not automatically subject to remand in the Middle District in Alabama. The court held that the filing of an opposition to the remand by the codefendant cured the technical defect. The case was set for discovery on whether the jurisdictional limit was met. Piard v VRP Transportation, 2019 WL 210402

The District Court in Maryland refused to dismiss a late filed action against a motor carrier when the initial suit was timely filed against the truck driver. The court held that it was reasonably possible that the motor carrier should have expected the suit and the amended complaint should be deemed to relate back to the initial date of filing. Agbaje v. Saul, 2019 WL 316725

When a trucking company removed an action before the home state driver was served the plaintiff was not allowed to have the case remanded. The Eastern District of Pennsylvania held that the plain meaning of the forum defendant rule precluded removal on the basis of in-state citizenship only when the defendant has been properly joined and served, acknowledging the legal split on the issue. Mendoza v, Ferro 2019 WL 316727

The request to prevent an Accident Reconstructionist from testifying about the position of tractor trailers following an accident failed in the Western District of Pennsylvania. While the report was based, in part, upon photos which were disclosed late, the court held that was insufficient as a reason to withhold the report. Take note that the photos came from the insurer’s physical damage file and not from the liability file. Make sure to always consider what other claim files might exist. Rabuh v. Hoobrajh, 2019 WL 135529

Cargo

The Northern District in Illinois considered the question of whether claims that a motor carrier violated safety regulations gave way to an additional cause of action for loss or damage to cargo, which is generally subject to the preemptive effect of the Carmack Amendment. The court rejected the position, concluding that the regulations were not promulgated under 49 USC § 13902 and that none of the other provisions within Part 392’s authority citation fell within or were promulgated under Part B of Subtitle IV and therefore there is no claim under ICCTA. Plaintiff could not state a claim under § 14704 for the violations. Starr Indemnity & Liability Co. v. YRC, 2018 WL 6790487

A broker was not permitted to recover for a cargo loss from a motor carrier when the broker settled first with the customer. The Court of Appeals in Ohio held that when a broker sought indemnity under a broker carrier contract it was obligated to comply with Ohio indemnity laws which required a showing that 1) that the indemnitee has given proper and timely notice to the party from whom indemnity is sought, (2) that the indemnitee was legally liable to respond to the settled claim, and (3) that the settlement was fair and reasonable. The court held that the broker failed to establish that it was legally liable for the loss and therefore could not seek indemnity. Total Quality Logistics, LLC v. JK&R Express, LLC. 2019 WL 115204

A default judgment against a motor carrier was vacated in the Middle District of Florida. While the court held that the motor carrier was not entitled to quash the service of the complaint, it acted diligently in seeking to vacate the default judgment for a cargo loss. The motor carrier was given an opportunity to answer the suit. Scotlynn USA Division v Titan Trans Corp., 2019 WL 166325

One tow truck company, although losing the battle, may win the war. The Third Department in the Appellate Division in New York reversed the award of summary judgment to a tow company for $55,946.78 for its services and ongoing storage fees when the defendant had not answered the complaint. While the court concluded that summary judgment was not the proper remedy because the suit was not joined, it held that plaintiff could seek a default judgment, denying the motor carrier an opportunity to defend the suit due to its failure to timely address the complaint. Gerster’s Triple E. Towing & Repair v. Pishon Trucking, 2018 WL 6797582

A truck broker was successful in defeating a claim for damages stemming from a cargo loss. The District Court in New Jersey held that the broker did not hold itself out as a carrier and therefore could not be liable under the Carmack Amendment. The court also held that the state law claims were preempted under FAAAA. AMG Resources Corp. v Wooster Motor Ways, Inc., 2019 WL 192900

Thanks for joining us,

Jean & Chad

Volume 21, Edition 12

CAB Bits & Pieces December 2018

Good day CAB Nation!

How can it be the end of the year already? We hope everyone had a wonderful Holiday and are looking forward to a Happy and Prosperous New Year! We’ve had the opportunity to share a good amount of news during 2018 which proves the industry is always changing and adapting. We at CAB look forward to being a news resource for you in 2019 and beyond.

In case you missed it, toward the end of December we posted an article to our Bits & Pieces page (& Linkedin & Facebook) titled IRT: Just the facts please! You can click the title to the left to be quickly linked to the full article. The goal of the article is to separate what is known from what is speculation when it comes to the proposed IRT model. We take the 7 most common questions we’ve received and answer them individually. The feedback has been positive. Please let us know if you have any thoughts or questions.

Follow us at: CAB Linkedin Page CAB Facebook Page

CAB’s Tips & Tricks:

This month we’re focusing on the Vehicles area of the CAB Report which can be located under both the Inspections/Accidents and CSA/BASICs Tab. To expand this section you will need to click on the Show Inspections Details link below. From there, all the inspected Vehicles (Power Units & Non Power Units) will appear via VIN number.

You will notice the new Key below is added next to the word Vehicles. The new icons are explained below.

Has Crash(es):The Unit was involved in a DOT Reportable Crash

Has OOS Inspection(s): The Unit had an inspection that resulted in the unit being put Out of Service

Shared While Using: The Unit was inspected while operating under a different DOT number between the first and most recent inspection for the DOT number that is identified on the CAB Report. This could identify the unit as an Owner Operator, a rental, short term lease or a chameleon.

The three situations identified above would likely warrant additional due diligence when reviewing a CAB Report.

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:

FMCSA Grants Petition to Preempt California’s Meal & Rest Break Rules: On Friday, December 21st, the FMCSA issued a Final Determination Document that grants petitions submitted by the ATA and others to preempt the California Meal and Rest Break Rules. The California Law required a 30-minute meal break every five hours and a 15-minute rest break every four hours of work. That law was deemed to be incompatible with Federal Regulations and causes disruption in interstate commerce. FMCSA Administrator, Raymond Martinez states “Safety is FMCSA’s top priority and having uniform rules is a key component to increasing safety for our truck drivers.”

Record Number of Truck Drivers killed on the Job in 2017: The BLS Census of Fatal Occupational Injuries Summary, 2017 notes that 840 Truck Drivers were killed on the job in 2017. That number represents 77% of the 1084 motor vehicle fatalities that year. Total workplace fatalities in 2017, including all other occupations, was 5190. Overall, Truck Driver Fatalities represented 16% of workplace deaths in 2017.

Snowiest Places in the US: The winter driving season has already started for much of the country, but with the official start of winter on December 21st, it’s interesting to note the cities in the U. S. that receive the most snow. From 2016-2017 the city with the most snow days was Mount Washington, NH with 118.5 and the city with the most snow fall was Syracuse, NY with 123.8.

UCR Fees for 2019 & 2020 have been Released: Earlier in December it was announce that the 2019 Unified Carrier Registration fees would be delayed. The FMCSA has now released the fees for both 2019 & 2020. The final rule is available here. The 2019 fees are as follows:

Number of Trucks Fee

0-2 $62

3-5 $185

6-20 $368

21-100 $1,283

101-1000 $6,112

1001 and above $59,689

 

A Mississippi Man has been Sentenced for CDL Skills Test Fraud: On December 14, Benjamin James McGrigg was sentenced to 27 months in prison and ordered to pay $13,500. Over the span of two years, McGrigg and his accomplice falsified skills test score sheets while failing to administer driver’s skill & road tests. A U.S. DOT Press release notes that approximately 65 CDL applicants were provided fraudulent skills tests scores.

FMCSA receives Multiple Hours of Service Exemption Requests: According to the December 18th Federal Register four trade associations have formally requested the exemptions. This is after the FMCSA previously denied ELD exemption requests from 10 trade organizations on December 7th. The Electronic Logging Device Mandate and Hours of Service rules are common issues that are not going away for the industry. Based on the regular exemption requests it is plain to see why both issues were listed in the top five issues for the industry for both Motor Carriers and Commercial Drivers in 2018.

Physicians Sentenced for Falsifying DOT Medical Examination Reports: Two physicians in Georgia were sentenced in November for falsifying DOT records. An investigation by the DOT-Office of Inspector General identified the physicians signed DOT medical examiner’s certificates and medical examination reports for commercial driver’s license (CDL) holders without examining the drivers. The first physician was sentenced to 15 months in prison and a $3,000 fine. He was indicted in March 2018 and pleaded guilty in May. The second physician received a sentence of 30 months and a $6,000 fine.

Cargo

The Eastern District in New York confirmed that the agent of a household goods carrier was not responsible under the Carmack Amendment for cargo damage. Liability, if any, rested only with the national carrier. The other possible participants in the transportation were dismissed. Rechler v. United Van Lines, 2018 WL 6173440

When two trucking companies are involved in an accident in which cargo is damaged, questions exist as to the basis of liability of each party to the cargo owner and to each other. The Central District of Illinois held that the motor carrier, who was not transporting the plaintiff’s cargo, could still be liable in negligence to the transporting carrier while claims for contribution and negligence must fail as a matter of law. Allianz Global Corporate & Specialty v. Victory Logistics, 2018 WL 6706665

A motor carrier’s request for dismissal of a complaint was granted in the District Court in Oregon when the plaintiff failed to allege a Carmack claim for loss and damage to freight. Plaintiff was given an opportunity to amend the complaint although the court noted that the plaintiff had an uphill battle to show that he complied with Carmack obligations. Lowbeer v. Allied Van Lines, 2018 WL 6625051

The 5th Circuit Court of Appeals reversed the grant of summary judgment to a motor carrier in an action by the broker for indemnity for a cargo loss. The Court held that the broker’s claim was limited to recovery under the Carmack Amendment and the bill of lading, leaving open the question of whether the limitation of liability on the bill of lading was valid against the broker.. Ceva Logistics, U.S., Inc. v. Acme Truck Lines, 2018 WL 6694606

The Middle District of Tennessee refused to enforce a forum selection clause in a client-broker contract. The client was seeking recovery for a cargo loss arising from an apparent identity theft. The court found the clause to be permissive and not mandatory. Scepter, Inc. v. Nolan Transportation Group, 2018 WL 6241333

Auto

Who owns the vehicle and therefore bears liability for a multivehicle action was a question of fact in the Middle District of Pennsylvania. The Court, in evaluating the motion to dismiss refused to consider outside evidence and concluded that the plaintiff’s complaint sufficiently pled alternative ownership or responsibility by the various defendants. Lesko v. Old Dominion Freight Lines, 2018 WL 6266802. In a related decision the court held that plaintiff asserted sufficient facts to allow an action to continue against another motor carrier, when its tractor-trailer was alleged to have improperly stopped in the median, and because of that improper stop, plaintiff stuck the tractor-trailer. 2018 WL 6266803

In a different multi-vehicle accident case the Middle District of Pennsylvania granted a motion to dismiss for one trucker when the plaintiff had failed to allege how that defendant’s vehicle caused or contributed to the plaintiff’s injuries. Simply because the truck was involved in the accident was not enough. Petit v. Penske, 2018 WL 6304205. The Court, in a separate opinion also dismissed a loss of consortium claim for the same reason. 2018 WL 6304204

The Western District of Kentucky held that questions of fact remained to be considered on whether a driver took all required precautions when operating a commercial vehicle on a rainy road. The plaintiff’s vehicle slipped and headed toward the motor carrier’s vehicle when the collision occurred. The court held that there was a question as to whether the motor carrier should have been traveling slower and/or braked earlier to get away from the plaintiff’s vehicle. Tingle v. Cornelison, 2018 WL 6594544

The New York County Supreme Court reversed its decision granting judgment to a motor carrier for injuries suffered by the plaintiff in a truck accident. The court held that the plaintiff, under New York law, had established a serious injury and that as a passenger in a vehicle, was entitled to judgement on the issue of liability. Altavilla v. West, 2018 N.Y. Misc, LEXIS 6265

The steps necessary to serve defendants can often be numerous. The District Court in New Jersey agreed that an insurer had made substantial effort to serve a complaint seeking declaratory relief on a motor carrier and related parties. In a rare move the court held that the insurer could complete service by filing numerous and repeated notices in designated newspapers. Argonaut-Midwest Ins. Co. v. Colt Logistics, 2018 U.S. Dist. LEXIS 214547

The Supreme Court in Texas held that the trial court abused its discretion when it did not allow the motor carrier to introduce evidence of the plaintiff decedent’s mental illness and drug use. The court also held that there was no evidence to support a finding the alleged negligent training of the driver by the motor carrier was a cause of the accident. JBS Carriers, Inc. v. Washington, 2018 WL 6712566

One motor carrier’s request for a change in venue was denied in the Western District of Missouri in a suit seeking damages arising from a truck accident. Where limited witness convenience was the only point raised by the motor carrier the court held that plaintiff’s choice of forum should stand. Mitchell v. Mims, 2018 WL 6591806

Everyone wants punitive damages. The Court denied a request to dismiss a claim for punitive damages when there was an allegation that the motor carrier drove through a red light. The Southern District of West Virginia held that was enough to support a claim of recklessness and possible punitive damages. Harris v. The Kenan Advantage Group, 2018 WL 6182693

A similar result was reached in the Western District of Missouri. The Court held that based on the surrounding circumstances, namely the alleged weather conditions and established motor carrier safety regulations, that the driver’s conduct created a high degree of probability of injury. Under Missouri law, evidence of failure to follow motor carrier regulations and industry standards is permitted to support an award of punitive damages against commercial motor carriers. Ellis v. Elkins, 2018 WL 6331706

A defense verdict was upheld by the Appellate Division in New York. The court held that the jury was entitled to consider the testimony and evidence which supported a conclusion that the plaintiff improperly changed lanes and sideswiped the truck. Cetoute v. Sidney, 2018 WL 6332614

The Supreme Court in Alabama concluded that a company was entitled to have a suit arising from a truck accident transferred to the venue of the accident, rather than the venue of the plaintiff. The trial court was found to have abused its discretion in denying defendants’ motion to change venue, despite the argument that the motorist and truck driver lived in county in which motorist filed action and the driver worked in the employer’s facility in that county; evidence tended to indicate that the topography at the scene might have been a contributing factor such that it would be helpful for the jury to view the scene, or at least be familiar with the area, to fully appreciate the unique road conditions. Ex-parte Tyson Chicken, 2018 WL 6259259

No reasonable jury could conclude that a truck driver intended to hit the plaintiff when he accidently backed into the plaintiff’s vehicle. The fact that the plaintiff was honking her horn and waving to the driver was not enough to show that he knew she was there. The District Court in Maryland granted judgment to the carrier on claims of assault battery and punitive damages and further held that there would be no sanctions for spoliation of evidence when the motor carrier destroyed log books. It was determined that it was not intentional and the logs had no relevant connection to the loss. Beaudoin v. Accelerated Logistics, 2018 WL 6273666

A truck driver who sued for injuries caused by a malfunctioning lift gate was entitled to keep his action in state court. The removal was considered untimely when not filed within 30 days where the complaint, while not specifying a specific amount of money, alleged that he suffered permanent spinal and nervous system injuries. The Eastern District of Pennsylvania held that was enough to have given notice to the defendants that the case could be removed to federal court. Bracken v. Dolgencorp, 2018 WL 6249715

The Court of Appeals in Indiana upheld summary judgement granted to a motor carrier in an action commenced by a worker injured when he entered a trailer with a fork lift. The court held that the uncontroverted evidence showed that the red light was on in the trailer which indicated that he should not have entered as the trailer was engaged to move Shepard v. Carpenter, 2018 WL 6320772

A rail carrier was granted summary judgment in a claim for injuries by a tractor trailer driver struck while crossing the rail. The Western District of Louisiana held that the evidence established that the driver did not stop before crossing the rail and if he had he would have seen the train and stopped.  O’Neal v. Union Pacific Railroad Co., 2018 WL 6186802

For those of you familiar with the Sperl case, it continues to wind its way through the judicial process. The broker, after being hit with a large verdict, sought contribution from the motor carrier The Supreme Court in Illinois held that the broker was entitled to ½ of the judgment from the motor carrier. As the motor carrier did not admit to direct negligence and federal regulation did not entitle the broker to greater contribution, ½ was the maximum recovery. Sperl v. Henry, 2018 IL 123132

On the other hand, over in the Appellate Court in Illinois the court held that neither a truck broker nor the cargo owner bore liability for a truck accident which occurred after the cargo was delivered. While many of the facts could be used in other cases to assert liability, (with the court specifically referencing the Sperl case) the facts could not support a claim when the relationship ended by the completion of delivery. Brettman v. M&G Truck Brokerage, Inc. 2018 Il. App (2d) 180236

A co-driver who was killed in a truck accident sought recovery from the driving school which trained the driver. The Eastern District of California held that the driving school’s general liability policy did not provide coverage for the liability, if any, of the school. The auto exclusion under the general liability policy was applicable and allowed the court to conclude that there was no duty to defend or indemnify. Maxum Indemnity Co. v. Kaur, 2018 WL 6528427

Claims for wantonness, negligent hiring and entrustment were held unsupported in a complaint seeking damages from a truck accident which injured the plaintiff. Plaintiff failed to allege any facts which supported that the actions of the driver were wanton or that the motor carrier should have known of the potential for this accident to have occurred. White v. Miller, 2018 WL 6181170

The Western District of Pennsylvania remanded an action by a tow company against a motor carrier, the broker and the cargo owner for costs incurred following an accident. The court held that the co-defendants did not timely agree to the removal by the motor carrier, a flaw fatal to removal. Back it went to state court. Yanuck v. Simi Transportation Corp., 2018 WL 6267092

A motor carrier was successful in getting an action dismissed when there was no specific evidence that the motor carrier was the carrier that hit the plaintiff. The Eastern District in New York held that no reasonable jury could find that the plaintiff’s allegations—that her car was hit by a truck with “New England” written on it and that NEMF had the misfortune of being the first hit in her Google search for a company with a different name—would be enough to hold NEMF responsible for the accident. Nagair v. New England Motor Freight, 2018 WL 6272751

A motor carrier was successful in obtaining summary judgment on claims for punitive damages and negligent hiring/retention arising from an tractor-motorcycle fatal accident. The Northern District of Ohio also held that there was no claim for survivor damages when the evidence supported a conclusion that the decedent died instantly. Frank v. FAF, Inc. 2018 WL 6567724

FAAAA preemption prevailed in the Northern District of Ohio. The Court held that claims against a shipper and a broker for negligently hiring a motor carrier who injured the plaintiff were preempted by the statute. Creagan v. Wal-Mart Transportation, LLC, 2018 WL 6523123

The Eastern District of Missouri did not allow a motor carrier to assert a claim for contribution against a party that entrusted a vehicle to a decedent that the motor carrier hit. The court held that there was no evidence to support a claim that negligent entrustment of the vehicle caused the accident simply because they were not authorized drivers under a rental agreement, could not be authorized drivers under a car rental agreement due to age and inexperience, or because their sleepless road trip was dangerous. Eagle Express v. Jones, 2018 WL 6445623

The District Court in Connecticut denied a motor carrier’s request for summary judgment, concluding that the matter would proceed to trial. The accident arose when the motor carrier struck a disabled vehicle stuck on I-95. While the plaintiff’s insurer sold the disabled vehicle before proper investigation as to the extent and cause of the disability could be completed, it was insufficient to support a sanction for spoliation. Aidoo v. Cela, 2018 WL 6435650

The Southern District in West Virginia upheld a verdict against a motor carrier who utilized a third party to perform transportation services. The court held that the evidence supported a conclusion that the motor carrier exercised sufficient control to warrant responsibility for the loss. The motor carrier was entitled to a small offset against the $5.4 million verdict rendered against it for the amount paid by the vehicle owner in settlement of the claim against him. Edwards v. McElliotts, 2018 WL 6531680

The Superior Court in Pennsylvania agreed with a motor carrier that having a personal injury action heard in Philadelphia County was oppressive and vexatious and warranted transfer to Somerset County where the loss occurred. Watson v. Capo, 2018 WL 6498155

Most of a judgment entered against a pipeline company was upheld in the Court of Appeals in Texas. The pipeline company hired a motor carrier who hired a driver that allegedly had numerous traffic violations. The driver injured the plaintiff while transporting equipment on the plaintiff’s property. The pipeline had spotters who failed to warn the driver in time to prevent the accident. The court found that there was ample support for the jury verdict but remanded the case to determine the appropriate past medical expenses. Myers v. Primoris Energy Services Corp. 2018 WL 6542569.

Worker’s Compensation

The daughter of a truck driver who was killed in a truck accident was potentially entitled to worker’s compensation benefits even after reaching the age of majority. The Commonwealth Court in Pennsylvania held that there was credible record evidence that the plaintiff has a physical impairment that continued beyond her 18th birthday and which would progressively worsen. The case was remanded to determine if she would be unable to earn a living.  Aqua America, Inc. v. Workers’ Compensation Appeal Board, 2018 WL 6313692

When a truck driver had a law degree, and was also a licensed insurance adjuster the District Court in Arizona held that the limited payments which were authorized by the worker’s compensation board were correct. Plaintiff was determined to be able to undertake work in another field. Gonzalez v. The Industrial Commission of Arizona, 2018 WL 6320703.

Injuries caused by striking a padlock on a truck to close it were determined not likely to have caused additional damages to the plaintiff’s wrist. The Illinois Court of Appeals held that the tears in the plaintiff’s wrist, requiring surgical intervention, were not casually related to the prior injury. Roberts v. Illinois Workers’ Compensation Commission, 2018 IL App (3d) 170797WC-U

A motor carrier’s request to terminate compensation for a driver was denied by the commission and the decision upheld, in the Court of Appeals in North Carolina. The court held that there was sufficient evidence to support the Commission’s determination that the plaintiff would suffer permanent disabilities and also made all reasonable efforts to seek employment in the only area that she had ever worked. Glasgow v. Peoplelease, 2018 WL 66139

Thanks for joining us,

Jean & Chad

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