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Bits & Pieces

Volume 20, Edition 1

New Administration. That says it all.  Changes are coming and the impact on trucking will be big. We have a new leader at the DOT, Elaine Chao.  There are wish lists flying all over as everyone looks to see what items on their agenda can be finagled.  Buckle your seat belt and we will see where this goes.

FEDERAL REGULATIONS – President Trump has declared a moratorium on regulations.  All new regulations are postponed and the moratorium delayes the effectiveness of rules that have been published but with future effective dates.   The entry level driving training rule may be delayed.  There has been some opposition to the regulation as a request for reconsideration has been filed.

PASSENGER CARRIERS – The FMCSA has released a web page styled “Understanding Passenger Carrier Regulations,” Organizations and businesses that transport passengers will now receive clarification on existing Federal Motor Carrier Safety Regulations (FMCSRs), as well as requirements that have been changed over the years through legislation, rulemaking, and litigation. It will provide USDOT operating authority registration requirements, minimum levels of financial responsibility, and applicability of safety and commercial regulations.

2017 POCKET GUIDE TO TRANSPORTATION – For you statistics junkies the DOT has released the 2017 Pocket Guide to Transportation.  The guide indicates that in a 10 year period, until 2014, there were 11 million trucks on the road.  In 2015, trucks carried more than $13 trillion of freight, nearly $1 trillion more than in 2012. Trucks are expected to carry more than $24 trillion of freight in 2045, approximately twice as much as 2012.

URS DELAYED – In case you missed our news blast,  FMCSA is extending the implementation date of the final stage of the Unified Registration System (URS) beyond January 14, 2017 because additional time is needed to securely migrate data from multiple legacy platforms into a new central database and to conduct further compatibility testing with its State partners.

TRUCK FATALITIES – The NHTSA has reported that driver fatalities rose 8% this year. There was an estimated 27,875 people killed.  The fatality rate increased 1.15 fatalities per 100 million vehicles miles traveled.

ELD – The 7th Circuit has denied a motion for rehearing on the challenge to the ELD rule mandating electronic logging devices (ELDs) for drivers required to maintain records of duty status (RODS). Unless the Supreme Court or Congress act to overturn or delay the rule or FMCSA reverses or postpones the rules the ELD will go into place on by December 18, 2017.

CRASH ACCOUNTABILITY – The DOT has released a study that confirms that driver experience is critical to reducing crashes.  The analysis which can be viewed here shows a link between years of experience behind the wheel and the reduced likelihood of the driver named as the “critical reason” for the crash. Less than 10 percent of the crashes studied listed the driver as the critical reason for the crash. If a driver had more than 10 years of experience the risk of being assigned as the critical reason for the crash was14 percent lower.  You can see the position statement here.

SAFETY FITNESS DETERMINATION – The FMCSA issued a notice of proposed rulemaking which seeks to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to revise the current methodology for issuance of a safety fitness determination (SFD) for motor carriers. The proposed new methodologies would determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce based on the carrier’s on-road safety data in relation to five of the Agency’s seven Behavior Analysis and Safety Improvement Categories (BASICs); an investigation; or a combination of on-road safety data and investigation information.

DOT STRATEGIC PLAN – The DOT released its 5 year research, development and strategic plan.  U.S. DOT has defined four critical transportation topic areas that will be supported by U.S. DOT RD&T over the next five years: Promoting safety, improving mobility, improving infrastructure and preserving the environment. The Strategic Plan also describes four overarching research themes, policy research, emerging technology, strengthening research coordination, and big data.

TRAFFIC CONGESTION – The DOT has reported that the struggling infrastructure contributes to traffic congestion that often delays trucks along freight corridors.  This pressure on freight corridors is expected to worsen in the coming years as truck traffic is projected to increase along large metropolitan areas, according to DOT’s biennial report, “2015 Status of the Nation’s Highways, Bridges, and Transit: Conditions & Performance.” Truck traffic accounted for 67% of freight tonnage and 64.1% of freight value in 2012. Trucks usually are the primary method for freight trips consisting of less than 500 miles, An American Transportation Research Institute study last year revealed congestion cost the trucking industry nearly $50 billion in 2014.

CAB FINANCIAL RATINGS – We have compiled our annual summary of CAB Financial Ratings for the prior year. Over one quarter of carriers we look at are rated POOR or below. So it is always a good idea to monitor the financial condition of motor carriers.

CASES 

AUTO

The Eastern District of Louisiana held that the MCS-90 did not allow for a direct action in the absence of a judgment against the motor carrier.  The insurer, who had already received a ruling that the policy did not provide coverage, was granted summary judgment.   The Court also held that the lessor of a vehicle was not liable for negligent entrustment of a vehicle when there was no evidence to support such a claim. (Cherkaoui v. Pinet, 2017 WL 1111276)

A jury’s finding of direct negligence on the part of a trucking company was upheld when the evidence showed that the company failed to use ordinary care in instructing the driver and making sure that he could operate the vehicle.  The Court also upheld the lower court ruling excluding evidence of the plaintiff’s mental health and drug use at the time of the accident.  (JBS Carriers, Inc. v. Washington, 2017 Tex. App. LEXIS 148)

The Court of Appeals in Ohio upheld a trial verdict, denying a JNOV and a request for a new trial.  The court held that a truck driver had sufficiently established loss of income following an accident in which he was thrown from the back of his truck to the front when the vehicle was struck during unloading.  (Austin v. Chukwuani, 2017 WL 123336)

The Court of Appeals in Texas withdrew an earlier decision and vacated its prior judgment in a case addressing the appeal of a trial court judgment.  The Court upheld the trial court decision, concluding that there was evidence of gross negligence on the part of the driver and the motor carrier in entrusting the vehicle, and  evidence of “pattern logging” of hours by the driver, both of which supported the judgment.  (Greenwood Motor Lines v. Bush, 2017 WL 7488859)

A motion to remand failed in the Eastern District of Louisiana. The trucking company removed the case after it received discovery which lent support for the assumption that damages would exceed the $75,000 jurisdictional limit. It was only after receipt of that information was it clear and certain enough to justify removal.   (Wright v. National Interstate Insurance Co., 2017 U.S. Dist. LEXIS  9529)

CARGO 

A broker was entitled to partial judgment on the pleadings when a plaintiff asserted a claim against the broker under the Carmack Amendment.   The Southern District in Ohio held that brokers were not liable under the Carmack Amendment and declined to exercise jurisdiction over state law claims asserted against the broker.  (Mitsui Sumitomo Insurance USA v. Maxum Trans., Inc. , 2017WL 7496737)

A motion to dismiss filed by a carrier failed in the Eastern District of Pennsylvania. The motor carrier argued that it was entitled to the benefit of an air waybill when it failed to maintain proper temperature for a shipment of HGH.  The Court held that there were questions of fact as to whether the air way bill or a separate ground transport bill of lading governed the move.  (Baloise Insurance Ltd. V. Philadelphia Truck Lines, Inc., 2017 WL 118100)

The District Court in Illinois denied a motor carrier’s motion to dismiss any cause of action other than a claim under the Carmack Amendment.  While the Court concluded that state law causes of action were preempted, it held that plaintiff could proceed with a cause of action for violation of federal safety regulations and a cause of action that the motor carrier’s failure to stop the driver from operating a vehicle with severe violations.  (Starr Indemnity & Liability Company v . YRC., 2017 US Dist LEXIS  6260)

A default judgment for all requested damages was entered in favor of the plaintiff in the Central District of California. The Court considered all relevant factors and concluded that damages were proved and there was no basis to not grant judgment for a loss to cargo damaged in transit    (Craneveyor  v. AMK Express, Inc., 2017 WL 89553)

In the 3rd Circuit the Court vacated a default judgment entered against a motor carrier who contended that the cargo at issue was delivered hot and that the refrigeration unit did not fail.  The Court held having the matter litigated on its merits when there was a defense warranted the judgment being vacated. (Mrs. Ressler’s Food Products v. KZY Logistics, 2017 WL 167464)

Stay warm.  Have a great February.

Volume 19, Edition 12

We send you best wishes for the happiest New Year.   As we head off into the sunset of 2016 we are so grateful for our relationship with you all.  It is a pleasure to work with you and learn from you. 2017 should be an interesting year and we look forward to seeing where things lead.  Expect new and exciting changes at CAB as we work at creating more ways to help you analyze motor carrier operations.

This month we report.

VEHICLE TO VEHICLE TECHNOLOGY – The DOT has released a proposed rule  on the development of vehicle-to-vehicle technologies that would provide advance warning of potentially life-threatening crashes for light vehicles.  The V2V technology would share data in a common language for such variables as a vehicle’s speed, direction and position at a rate of 10 times per second. The technologies would provide 360-degree awareness and include such systems as automatic emergency braking for adaptive cruise control to automatically avoid or lessen imminent crashes.  Of course the rule will take five years to be implemented.

DRUG TESTING – The FMCSA is not increasing the number of random drug tests in 2017.  A year ago they reduced the percentage to 25% and they intend to keep it at level. Federal regulations require that if there are two consecutive calendar years in which the rate of positive tests, as estimated by a Management Information System data survey for controlled substances, is less than 1%, the agency has the discretion to lower the annual testing rate to a minimum of 25% of carriers’ driver positions. If the positive test rate is higher than 1%, the testing rate will automatically revert to 50%. FMCSA said the 2014 survey estimated the rate of drug usage at 0.9%. In 2012, the usage rate for drugs was 0.6% and in 2013 was 0.7%. Violation rates for blood alcohol content was 0.08% in 2014, 0.03% in 2012 and 0.09% in 2013.

NEW ENTRANT REQUIREMENTS – The rules have been released for anticipated new entrants.   Effective 2020 proposed drivers will have to complete non wheel driver training before getting a CDL. There will be a proficiency-based approach that will accommodate individuals who learn at different paces. The trainers will be required to check off on a list of skills as each is mastered. Trainers with substandard performance can face removal from the registry and would no longer be permitted to train new drivers.

CARGO THEFT – CargoNet released its list of the top places for cargo thefts.  Los Angeles and Dallas lead the way.  In LA more than 1/3 of the thefts were at warehouse or distribution facilities.   Two other California counties made the Top 10 list, as did two other Texas counties, including Tarrant County, which includes the Arlington/Fort Worth metro area. Chicago’s Cook County, and nearby Will County along with Miami-Dade County, Fla., and Middlesex County, N.J. complete the list.

HOUSEHOLD GOODS CONSUMER PROTECTION – The FMCSA announced the appointment of 15 members to the Household Goods (HHG) Consumer Protection Working Group (HHG Working Group). The group is charged with providing recommendations on how to better educate and protect HHG moving customers (consumers) during interstate HHG moves. This new collection of information is for the National Consumer Complaint Database (NCCDB), which is an online interface allowing consumers, drivers and others to file complaints against unsafe and unscrupulous companies and/or their employees, including shippers, receivers and transportation intermediaries, depending on the type of complaint. These complaints cover a wide range of activities, including but not limited to driver harassment, coercion, movement of household goods, financial responsibility instruments for brokers and freight forwarders, and Americans with Disability Act (ADA) complaints.

HOURS OF SERVICE – A temporary spending bill will keep the 34-hour restart option in place for the time being   The bill includes a provision that provides that the FMCSA cannot enforce two restrictions it had placed on the 34-hour restart option in July 2013 unless the agency can show that those restrictions significantly improve safety and health. The restrictions include a requirement that each restart break include two periods from 1 a.m. to 5 a.m. and be limited to once per week. The restart provision allows truck drivers to reset their weekly accumulation of on-duty time by taking 34 consecutive hours off duty.

URS DELAYED – As you know from our news blast this month The FMCSA has delayed the final implementation of the Unified Registration System (URS) rule.  A new date has still not been announced. The FMCSA indicated that it needs more time in the development of the centralized database and migration of data from multiple platforms.  We will, of course, keep you advised of any developments.

CSA UPDATE – The list of acute and critical violations has been changed under CSA.  The acute and critical violations are those found during an investigation into a motor carrier’s operation that resulted in an alert status in the SMS system. The list was updated to reflect violations currently appearing in “Appendix B to Part 385—Explanation of safety rating process.” Below are the additions to the SMS Methodology list:

Violation Violation Description BASIC Violation Type
395.8(a)(1) Failing to require a driver to prepare a record of duty status using appropriate method HOS Compliance Critical Violation
395.8(a)(2)(ii) Failure to require a driver to submit record of duty status in a timely manner HOS Compliance Critical Violation
395.8(e)(1) Making, or permitting a driver to make, a false report regarding duty status HOS Compliance Critical Violation
395.8(e)(2) Disabling, deactivating, disengaging, jamming, or otherwise blocking or degrading a signal transmission or reception; tampering with an automatic on-board recording device or ELD; or permitting or requiring another person to engage in such activity HOS Compliance Acute Violation
395.11(b) Failing to require a driver to submit supporting documents HOS Compliance Critical Violation
395.11(c) Failing to retain types of supporting documents as required by §395.11(c) HOS Compliance Critical Violation
395.11(e) Failing to retain supporting documents in a manner that permits the effective matching of the documents to the driver’s record of duty status HOS Compliance Critical Violation
395.11(f) Altering, defacing, destroying, mutilating, or obscuring a supporting document HOS Compliance Critical Violation
395.30(f) Failing to retain ELD information HOS Compliance Acute Violation
396.11(a)(3) Failing to correct Out-of-Service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again Vehicle Maintenance Acute Violation

 CASES:

It was a quiet month on the judicial front.

AUTO:

What happens when a motor carrier is put out of service and then the government rescinds the order?  The 7th Circuit held that the motor carrier had no on-going injury since the order was rescinded.  Even though it could happen again, the motor carrier was limited to those legal remedies which can be used to compel the DOT to justify its steps.  This is a good case to read to understand the steps taken to shut down a carrier.  (DND International, Inc. v FMCSA, 2016 WL 7260672)

The Western District of Virginia dismissed a punitive damage action against a driver who drove the wrong way on an entrance ramp to exit a rest area.  The Court held that there was insufficient evidence to find that the driver exhibited reckless disregard for others.  The Court did not, however grant judgment to the vehicle owner who claimed he had only loaned the vehicle to the driver. The Court held that there was a reasonable possibility that a jury could find that that the owner was responsible for and/or controlled the operation of the vehicle.  (Lester v. SMC Transport, 2016 U.S. Dist. LEXIS  177905)  In a related insurance case an insurer sought a declaration that it provided no coverage to the defendants for liability which it may have to the plaintiff.  The insurer provided coverage for a tractor which was being towed by a second tractor at the time of the loss.  The Court held that the named insured was entitled to coverage as the tow of the tractor was reasonable and constituted the use required under the auto policy.  The Court concluded that the operator of a tractor performing the tow was not covered under that same policy, exposing the insurer of that carrier to an MCS-90 exposure as there was no coverage under the policy.   (Falls Lake Insurance Company v Martinez, 2016 WL 7439425)

CARGO:

The Northern District of Illinois held that it would not dismiss a Carmack action against a defendant on the basis that the loss involved a shipment from Mexico to the U.S. and was therefore not subject to the Amendment.  While that rule would be true if there was a single through bill of lading, there remained questions of fact as to whether there was a through bill of lading.  (Hawkeye Engineering v. Perimeter International, 2016 WL 7231611)

Oh what a tangled web we weave….  The Northern District of Illinois held that a third party complaint would withstand a motion to dismiss when there was a question of fact as to whether the third party plaintiff was acting as a broker or a motor carrier.  While a motor carrier has rights against a downstream carrier, and the third party action would have a basis for recovery, a broker may not.  The issue would have to be resolved in the underlying claim.  (Coyote Logistics, LLC. v. All Way Transport, 2016 WL 7212487)

The Third Circuit held that while a motor carrier must offer choices for rates, it could do that by providing subsets of liability, i.e. certain limitations for certain types of loss. So when the motor carrier offered increased liability for negligent losses, but not other types of loss, the limitation was still valid. (Choi v. ABF Freight, 2016 WL 7212154)

© 2017 Central Analysis Bureau