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Bits & Pieces

Volume 21, Edition 12

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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.

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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

© 2019 Central Analysis Bureau