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Bits & Pieces

Volume 21, Edition 5

Dear Subscribers:

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

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

We report:

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

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

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

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

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

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

ATRI COSTS OF OPERATIONS.

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

CASES

AUTO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Truck Verdicts.

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

See you next month!

Volume 21, Edition 4

Dear Subscribers,

I generally start the Bits and Pieces with some simple phrase about the preceding month. This month, unfortunately, I take the time to sadly report on the sudden passing of the longest standing employee at CAB, Mark Schweber. Mark joined CAB 35 years ago and rose to be our Director of Financial Analysis. Mark was an important part of our financial analysis group, taking the time to teach our analysts on the unique nature of evaluating the financial stability of trucking operations. Mark joined us as a young man out of college, spending his entire career here, something one rarely sees today. Losing Mark was sudden and his loss is felt strongly by all of us. Mark was a character and truly enjoyed explaining to trucking companies why they got the rating they did. He loved telling truckers that “barely fair” was pretty darn good in his view. Mark deserves the highest rating – Satisfactory by our standards. He is survived by his best friend and wife, Andrea and his beautiful daughter Rebecca and all his friends here at CAB. He will be missed.

The IMUA meeting in Scottsdale is coming up soon. We are looking forward to seeing many of you there. This is always a great event and we remind you of the Bring a Buddy program – thing about bringing the people new to inland marine insurance. They will learn so much from us old folks! I will also be at the Board of Marine Underwriters in San Francisco talking about inland marine insurance so hopefully will catch up with some of you there.

This month was fairly quiet, but we found a few nuggets of information. We report:

CAB IN THE NEWS! Not to toot our own horn, but we were very excited to read this article this month in Freightwaves profiling our part in the transportation industry. Take a look.

FMCSA DOCTOR REGISTRY, The FMCSA’s National Registry of Certified Medical Examiners website is still in a state of flux since the hack back in December and they have advised that they are continuing to try to fix the problem. Medical examiners, which were certified before the hack, have been able to continue conducting DOT physicals and issuing medical certificates (Form MCSA-5876) to qualified drivers. Unfortunately the back log of results is jamming the system.

ELD POINT VIOLATIONS. The FMSCA has assigned severity weights to each of about a dozen electronic logging device-related violations that are being recorded on a driver’s or motor carrier’s safety profile score. A complete list of the new violations can be viewed here. The violations range from 1 to 5 points.

OPERATION SAFE DRIVER WEEK CVSA has announced that its next targeted enforcement in mid-July will focus on risky driving behaviors, including speeding, distracted driving, texting, seatbelt usage, following too closely, improper lane change, and failure to obey traffic control devices.

Current Cases

Auto
Speaking of certified doctors, one plaintiff in the Middle District of Alabama has turned his attention to pursuing a claim against the doctor. Plaintiff has commenced an action against the doctor who certified the truck driver who injured plaintiff in a truck accident. Plaintiff claimed the doctor was not authorized to certify drivers and should have known of the driver’s medical issues. The issue addressed by the court was whether the doctor, who certified the driver in Georgia, was subject to jurisdiction in Alabama when the accident occurred there (he was not). The court transferred the case to Georgia. Hardman v Southeast Permanent Medical Group, 2018 WL 1457297

The First District in Florida held that a Florida statute which imposes strict liability for the release of certain pollutants did not give rise to a private right of action. The plaintiff was injured when he came into contact with battery acid which spilled from a shipment of batteries which were on the road after an accident. He sought recovery from the motor carrier who spilled the cargo. While the court held that it did not permit a right of action, it certified the question to the Supreme Court so we will follow the decision for further reporting. Simon’s Trucking v. Lieupo, 2018 WL 1833415.

When discovery reveals facts which would support a claim for punitive damages against a motor carrier a plaintiff was permitted to amend the complaint. The Western District of Pennsylvania would not however allow a claim for loss of parental consortium by the plaintiff’s children, concluding that Pennsylvania law did not permit such a claim. Pegley v. Roles, 2018 WL 1863024

One motor carrier is being forced to litigate a truck accident in both state and federal court. The Northern District of Alabama held that it would allow one plaintiff to continue its action in the federal court even while a passenger had a similar suit pending against the motor carrier in state court. Jacks v. Cedric Dejanero Chance, 2018 WL 1856195

A motor carrier’s efforts to remove a tort action to federal court failed in the Eastern District of Louisiana. The court held that the motor carrier could not prove that naming the driver of the other vehicle was done simply to defeat diversity. In addition the court held that the removal was untimely when the motor carrier claimed that it only moved to remove the case when it found evidence that the plaintiff’s law firm had a pattern of adding non-diverse parties to stave off removal. Harris v. U.S. Express 2018 WL 1737575

Serving a co-habitant of a person authorized to receive service for an artificial entity, a trucking company, was held to be insufficient service in the Northern District of Alabama. The court did not dismiss the suit, however, giving the plaintiff an opportunity to complete service. Haynes v. Johnson, 2018 U.S. Dist. LEXIS 56271

When the amount of damages is in issue, it is the defendant’s obligation to show that the plaintiff seeks more than $75,000 if it wants to stay in federal court. The Eastern District of Missouri held that plaintiff’s post complaint demand of $100,000, together with the failure of plaintiff to stipulate that damages were below $75,000 was sufficient to allow the trucker to continue the case in federal court. Hughes v. Transwood, Inc., 2018 U.S. Dist. 62074

The Southern District in Ohio denied the request of a tractor owner for reconsideration of the denial of its summary judgment motion under the Graves Amendment. The Court had held that the Graves Amendment was inapplicable when the argument being presented by the plaintiff alleged that the lessor was an alter ego of the motor carrier. The court held that there was a question of fact as to whether both defendants would be considered employers of the driver. Parker v. Miller, 2018 U.S. Dist LEXIS 62155

Sanctions were not warranted against a motor carrier who failed to maintain data from the Omnitrac system which it used to keep data on drivers. The Middle District of Georgia held that the plaintiff was not substantially impacted by the failure to keep the data when there were other sources of data which could supply similar information. Barrett v. FedEx Custom Critical, Inc. 2018 U.S. Dist. LEXIS 60139.

Leasing equipment to another motor carrier and providing a driver may not be enough to avoid being a motor carrier for hire. The Western District of Oklahoma held that an insurer was premature in its request for a declaration that the MCS-90 did not apply to the liability which the insured may have for an accident when the vehicle was operated by the co-defendant. The court also held that the fact that the actual motor carrier had insurance coverage in excess of the MCS-90 requirements did not preclude the MCS-90 from applying, concluding that the obligation is satisfied per accident, not per carrier. Militello v. ICAN Logistics, 2018 WL 61400.  In a related case the Court ruled that the actual motor carrier was entitled to indemnity from the vehicle owner under the terms of the lease. The Court agreed that the lease clearly made the lessor responsible to indemnify the motor carrier. Militello v. ICAN Logistics, 2018 U.S. Dist. LEXIS 61399

A motor carrier was required to produce the early scene investigation performed by a third party adjuster under the direction of counsel retained to address the accident. The District Court in Minnesota held the motor carrier failed to show that the investigation was subject to a work product privilege when it failed to produce evidence that the accident investigation was not a normal part of its business operations. Soto v. Swift Transp. Servs. 2018 U.S. Dist. LEXIS 63138

A truck driver whose vehicle was under lease to a motor carrier used his vehicle, for compensation, as part of a Mardi Gras parade. The Court of Appeals in Louisiana upheld the trial court’s decision to grant judgment to the motor carrier. The court agreed that the vehicle was not being operated in the business of the motor carrier and that the federal “exclusive responsibility” regulations were inapplicable to intrastate transport. Jackson v. Wise, 2018 La. App. LEXIS 716

Over in the Western District of Kentucky the Court granted summary judgment to a truck company on a punitive damages claim arising from a truck accident. The court held that under Kentucky law an employer cannot be held liable for punitive damages based upon vicarious liability and that retaining the driver after the accident did not give rise to a claim that the trucker ratified the actions of the driver. The court did leave open the claim of punitive damages against the driver and co-driver, concluding that there could be a basis for a punitive damages claim. White v. Transportation Services, Inc. 2018 WL 15708187

In the Northern District of Oklahoma a different result was reached by the court. The court denied the defendants motion for summary judgment on claims of negligent entrustment and punitive damages against the employer of the truck driver. The court held that there were sufficient facts raised to claim that the employer knew that the driver suffered from sleep apnea and permitted the driver to drive outside the hours of service all of which could all support a negligent entrustment and punitive damage claim. Byrd v. Ace American Insurance Co., 2018 WL 1569499

Sufficient facts were alleged by the plaintiff to support a possible claim for punitive damages against a truck driver in the Middle District of Pennsylvania. The court held that when the defendant allegedly made a right turn from the left lane when the plaintiff was in the right lane he was reasonably aware of the risk of making the turn and so permitted punitive damages to remain on the table. Gontarski v. Hoag, 2018 WL 1440982

A trucker was successful in recovering monies from its liability insurer for monies which it owed following resolution of a claim for superfund clean-up. Claims were made against the trucker for toxins released following truck clean-ups and washes. The 5th District of Illinois held that the insurer was estopped to assert the pollution exclusion in its policy and that it had breached the duty to defend, further allowing recovery of attorney’s fees and statutory damages to the motor carrier. Rogers Cartage Co. v. Travelers Indemnity Company, 2018 WL 160098.

When a truck driver fled the scene of an accident, leaving the injured party unattended, the Middle District of Pennsylvania held that the plaintiff could allege all of those facts under the complaint. The defendant’s argument that the allegations were scandalous and immaterial was unavailing. Lane v. McLean, 2018 WL 1545588

Be careful what you allege when suits are brought by different parties in different court. The District Court in Kansas denied a request to dismiss a suit brought by plaintiff for injuries suffered in a truck accident even though there was a second action pending in another jurisdiction. That action, which was brought by a motor carrier’s pd insurer, had resulted in cross and counter-claims asserting similar damages to that pending action. The court held that the “first to file” rule did not apply when one of the actions was in state court. Konopasek v. Ozark Kenworth, Inc., 2018 U.S. Dist. LEXIS 61285

When a manufacturer’s palletization, warehousing and cargo loading complied with the reasonable standards of the industry the manufacturer would not be liable for injuries suffered by the warehouse driver when a box of tiles fell on the plaintiff during unloading from the truck. The Southern District of New York held that under New York law the defendant was entitled to summary judgment. Bah v. Everlast Logistics, 2018 WL 1517191

The Court of Appeals in Louisiana affirmed a decision granting summary judgment to a trucker who was sued following a 3 vehicle accident. The Court held that there was no reasonable basis for finding the trucking company was negligent when it was the third vehicle to be struck. Boyance v. United Fire & Casualty, 2018 WL 1515702

Who is responsible when equipment is defectively put together by a third party and it results in an accident? The Court of Appeals in Indiana held that Paccar could be held liable for providing parts of a semi-tractor that lacked necessary safety features even though it was assembled by the trucking company who was operating the vehicle at the time of the loss. Brewer v. Paccar, 2018 WL 1474250

Cargo
Judgment was afforded against a motor carrier in a Carmack suit brought by a truck broker. The truck broker had an assignment of the shipper’s claim and defendant offered no basis for a denial of liability. The Northern District of Illinois gave the broker all that it asked for. Coyote Logistics v. Concord Services, 2018 WL 1468997

Although not a cargo claim, the issue of date of loss under an inland marine policy was addressed by the Texas Appellate Court. The court held that the insured failed to show that a theft occurred before the policy was non-renewed when the insured had not seen the equipment for a period of time before the discovery, which was post nonrenewal. Plaintiff could not argue that there was a question of fact as to the date of loss by simply claiming it had not seen the equipment before the policy non-renewed and that it, therefore, could have been stolen while the policy was in effect. Schrader v. Tex. Farm Bureau Underwriters, 2018 Tex. App LEXIS 2445

Setting forth a specific amount is a requirement for complying with the cargo claim requirements, even under the substantial performance standard. The 9th Circuit held that the plaintiff had failed to comply with the claim filing requirements when it simply noted the value of the cargo and indicated that the cargo was still subject to inspection. NY Marine v. Estes Express, 2018 WL 1804229

Worker’s Compensation
The Court of Appeals In California granted judgment to a motor carrier and the driver on a claim for injuries by a co-driver. The Court held that the sole remedy for the plaintiff was worker’s compensation and that plaintiff could not support a claim that the motor carrier was not his employee simply because the vehicle was under lease to another carrier. Stoilkov v. Yin, 2018 Cal. App Unpub. LEXIS 2422

See you next month!

© 2018 Central Analysis Bureau