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Bits & Pieces

Volume 21, Edition 8

Dear Subscribers

How did we get to Labor Day already?  It seems like summer was just starting.  Hope you have a great holiday.

We are very excited to introduce you to our newest team member, Chad Krueger, who is joining us as our Senior Vice President.  Chad has been a heavy user of CAB over the years and brings a unique loss control perspective to our team.  Starting with his years as the Safety Director at a large trucking company, continuing with his years in Loss Control on the agency side and then a Senior Loss Control  representative at an insurer he knows what it takes to evaluate, correct and monitor transportation risk to minimize loss and to truly understand the operations of a carrier.  I am pretty sure he is going to get us in line too!  He will be reaching out to all of you in the coming months and is bringing many new ideas on the services provided to you by CAB.  Chad will be attending the Motor Carrier Insurance Education Foundation with me in October and I look forward to introducing him all around.  I have not told him yet but he will be taking on some of the role in writing the Bits N Pieces so that you get some other insights.  (guess he knows now)

This month we report;

Hours of Service.  I am fairly certain that I have been reporting on the Hours of Service for 20 some odd years with no end in sight. The FMCSA is now considering more changes.  They recently filed a pre-rule which is a form of an Advanced Notice of Proposed Rulemaking.  It will seek input from the industry about possible changes to the current rules. You can view the proposed rulemaking here.

Younger Drivers.  A bill had been introduced which will allow 18- to 20-year-olds to drive a commercial motor vehicle in interstate commerce.  With the driver turnover rate for large fleets reported at 94 percent in the first quarter of 2018 this may be welcome by the industry.  This would rule, if passed, would mirror the move of some states which allow young drivers to operate commercial motor vehicles.

The DRIVE-Safe Act would require drivers under the age of 21 to complete a probationary period of 120 hours followed by 280 hours of on-duty time. Trucks used in the apprenticeship program would require a collision mitigation system, forward-facing video, and a speed limiter that is set at no faster than 65 mph. The apprentice driver would also have to be accompanied in the cab by an experienced driver who is at least 21 years old, has held a CDL for at least two years and hasn’t had a preventable accident or moving violation in the past year.

 

 

UCR Fees.  Fees are on their way down again. Carriers with one and two trucks will pay $63; $187 for three to five trucks; $372 for between six and 20 trucks; $1,299 for carriers with 21-100 trucks; $6,190 for 101-1,000-truck carriers; and $60,441 for fleets with more than 1,000 trucks. Regulations require UCR fee adjustments when annual revenues exceed the maximum allowed ($112 million). Here is the chart.

CSA.  The FMCSA has filed its report with Congress regarding the proposed changes to CSA. The changes include replacing the existing CSA Safety Measurement System with a new scoring system, working to improve the quality of data used to score carriers, making it easier for carriers to understand and calculate their safety scores and evaluating adding an absolute scoring system.  A copy of the report can be reviewed here.

Cargo Theft.  Sensiguard has released its report on cargo theft for the second quarter.  They reported 144 cargo theft incidents during the quarter with an average loss value of $178,273 – an 8 percent increase in volume and 28 percent increase in value when compared to the second quarter of 2017.

California, Florida and Texas were home to the most cargo thefts in 2018’s second quarter with building and industrial materials leading the way, followed by electronics. Most of the thefts were truck loads.

Cases

           

Auto

There is always an increased exposure when there are multiple entities owned by the same people.  The Southern District of Ohio addressed the interrelationship between multiple motor carriers and its principles, concluding that the principles of the two companies had no individual liability for a truck accident.  The Court also concluded that a single enterprise argument would fail, and that violations of regulations did not justify a cause of action for negligence per se.  It should be noted that the Court did allow for a punitive damages claim to proceed as there was evidence that the motor carrier knew the driver was unfit.  More importantly the court held that a punitive damages claim could stand against the shipper because the public records on the violations should have made them aware of the problems.  The shipper was not permitted to rely on the fact that the motor carrier was licensed. Parker v. Miller, 2018 U.S. Dist LEXIS 132577

A verdict of bad faith against an insurer was upheld in the Court of Appeals in Washington.  The insurer of a truck driver settled a large claim for policy limits on a multivehicle accident. The court held that the insurer acted in its best interest and not the interest of the insured who would have wanted to preserve his right to a defense.  The insurer was obligated to indemnify the insured for its costs in settling a claim above the policy limits, as well as additional damages for his own damages as well as attorney’s fees.  Singh v Zurich American Insurance Co., 2018 WL 3844372

If your policy requires payment of the first premium installment before attachment the insurer is not required to give notice of cancellation The Middle District of Pennsylvania granted summary judgment to one truck insurer.  However, a second insurer, who denied coverage based upon a material misrepresentation regarding the number of vehicles being operated by the insured was denied summary judgment when there were questions of fact as to whether the motor carrier has gotten the report of an inspection involving the additional vehicle removed from its SMS inspections before the cancellation.  Sunday v. Berkshire Hathaway Homestate Ins. Co. 2018 U.S. Dist. LEXIS 127329

A motor carrier operating equipment under lease from another company was entitled to pursue a claim against a second trucker for the value of the property destroyed in a truck accident.  The 6th Circuit concluded that as the lessee had a contractual obligation to pay the lessor for the damages it was entitled to pursue equitable subrogation. Central Transport v. Balram Trucking 2018 WL 3995658

An insurer in Delaware was unsuccessful in having its declaratory judgment action considered in the Superior Court in Delaware.  The court held that a  first-filed personal injury action was a prior pending action for forum non conveniens purposes.  In view of the overlapping factual issues between the two actions, the risk of inconsistent judgments, and the fact Delaware law was not implicated in the loss the Court concluded that the prior filed New Jersey action should precede first. Progressive Casualty Insurance Co. v. Bowman, 2018 WL 3853875

A driver estate’s action against a consignee for injuries suffered when cargo fell on him during unloading was not permitted to proceed in Texas when the loss occurred in Oregon. The Court of Appeals in Texas held that the consignee did not have minimum contacts with the state.  The fact that it purchased goods from a Texas company would not give rise to jurisdiction. Wilco v. Carter, 2018 3625434

One trucking company was successful in having its summary judgment upheld in an action seeking damages for liability arising from a truck accident.  When the facts supported that the plaintiff improperly entered the motor carrier’s lane of traffic the motor carrier was held not liable for a fatal collision. The Court of Appeals in Michigan held that the motor carrier could not reasonably foresee such actions.  Pasho v. McCowan, 2018 Mich. App. LEXIS 2885

The Superior Court in Connecticut denied most of a motor carrier’s motion to dismiss claims for negligent supervision, training, hiring and retention. The court held that the motor carrier’s constructive knowledge of the driving propensities of the driver, by failing to check his history before allowing him to drive supported claims for negligent hiring, training and supervision but not retention.  Beardsley v. Jamark Constr., LLC 2018 Conn. Super LEXIS 1498

When a personal injury action was brought in the District Court in New Jersey for a truck accident which happened in Florida the court denied the motor carrier’s motion to dismiss the case for lack of jurisdiction but did transfer the case to Florida. The fact that the national carrier had a presence in the state of New Jersey was insufficient to support jurisdiction. Griggs v. Swift Transportation 2018 WL 3966304

The Appellate Division in New Jersey reversed the dismissal of a plaintiff’s complaint for failure to appear at depositions.  The trucking company defendants had been granted dismissal by the trial court.  The Appellate Division determined that the sanction was excessive and remanded the case back for reinstatement of the complaint.  Ortiz v. Benkius, 2018 WL 3625162

A split decision on a motion to strike causes of action in a complaint was rendered in the District Court of Minnesota.  The court granted a motion to dismiss claims for negligent hiring and retention when there was no evidence of an intentional act by the motor carrier. However the claims for negligent selection, supervision, and entrustment were permitted to remain because genuine disputes of material fact remain with respect to those claims. Soto v. Shealey,  2018 WL 3677920

The Court of Appeals in Indiana reversed a lower court decision and granted summary judgment to an insurance agent who was sued for allegedly providing improper information to a motor carrier’s insurer and to the DOT regarding an entities prior connection to a predecessor trucking company. The court held that the agent owed no duty to the injured plaintiffs and that the plaintiffs failed to allege a tort for conspiring to aid and abet a motor carrier to become a chameleon carrier.  ONB ins. Grp. v. Estate of Megal, 2018 Ind. App LEXIS 260

Try as they might to get a case over quickly a rail carrier was not entitled for summary judgment on the claim for more than 5 million in damages suffered when a truck got stuck on the rail line.  The Western District in Louisiana held that there were just too many questions remaining to be resolved. Union Pac. RR Co. v. Taylor Truck Line, Inc. 2018 U.S. Dist. LEXIS 140159

We generally do not report on decisions on discovery disputes between parties because they are so fact specific but sometimes the decisions are worth reviewing for thoughts on discovery in other cases for claims and defense counsel.  The Western District of Kentucky addressed a motor carrier’s obligations to produce many of its business records, including crash prevention information, insurance limits, vehicle maintenance and driver information.  Worth a review to see what is out there.  Merriweather v. UPS, 2018 U.S.Dist. LEXIS 124383

A personal injury action against a truck broker was dismissed for lack of jurisdiction in the Eastern District of Pennsylvania.  The court held that the connection between the broker and the motor carrier did not give rise to sufficient facts to support jurisdiction in the state.  Pineda v. Chromiak, 2018 U.S. Dist. LEXIS 125803.

Great Dane was granted summary judgment against the plaintiff in an action seeking damages for design defect which plaintiff alleged contributed to a side-underride accident. The court held that the plaintiff failed to establish that a alternative design, a “telescoping side guard” would have prevented the accident.  Wilden v. Laury Transp., 2018 U.S. App. 23776.

The Supreme Court in Alaska upheld a defense verdict in a subrogation action by the plaintiff seeking recovery for 3.5 million in oil spill mediation costs arising from two truck accident.  The Court affirmed the finding that the second carrier was not negligent in causing the accident. HDI-Gerling America Ins. Co. v. Carlile Transportation Systems 2018 WL 4040363

In an evidence case the Western District of Kentucky held that a motor carrier could introduce an animation prepared by an accident reconstruction company, and testimony regarding the sleep habits of the plaintiff and human factors which contributed to an accident.  The defense was seeking to use this evidence to show that the plaintiff was inattentive and bore some culpability for the fatal accident.  White v. Transp. Servs., 2018 U.S. Dist LEXIS 142667

The Southern District of Mississippi granted a motor carrier’s motion in limine precluding plaintiff’s efforts to introduce evidence that the drivers were not proficient in the English language.  The Court also held that the plaintiff could not submit evidence of safety rules which were not relevant to the loss.  McCon v. Perez, 2018 U.S. Dist. LEXIS 140449

A truck driver was precluded from recovering from a shipper in the District Court in Maryland.  As the driver was contributorily negligent in failing to adhere to safety rules he was not entitled to seek damages from others.  Childress v. Goodloe Marine, Inc. 2018 U.S. Dist LEXIS 135050.

A driver injured when putting chains on his tractor was entitled to UM/UIM coverage from the trucking company’s policy.  The District Court in Oregon held that it was related to the auto but rejected plaintiff’s argument that the limits should be hired because the insurer failed to properly noted limits on the coverage endorsement. Nikolaychuk v. Nat’s Cas. Co., 2018  U.S. Dist. LEXIS 138792

A trucking company was granted summary judgment on claims of wantonness, negligent entrustment, training retention and supervision when a plaintiff claimed he was struck by cargo when a pedestrian on the side of the road.  While the Northern District of Alabama allowed the negligence action to proceed as there were questions of fact, the plaintiff failed to establish any basis for the additional causes of action, Pickens v. Guy’s Logging Co., 2018 U.S. Dist LEXIS 131925

A Canadian insurer was found to be subject to jurisdiction in the Southern District of Indiana in a declaratory judgment action on primary/excess issues arising from a truck accident. The court held that there were sufficient contacts with the state to obligate the insurer to defend the coverage case in the state of the accident.  Leech v. Nat’l Interstate Ins. Co., 2018 U.S. Dist. Lexis 132445

In the Northern District of Alabama the court also granted summary judgment to a motor carrier on claims of negligent entrustment and negligent hiring and retention. However the court did find that there were questions of fact regarding the defendants’ alleged negligence and wantonness in allowing the driver to operate a vehicle where the bumper was strapped onto the truck.  It fell off causing the injury.  Simpson v. Key Line Solutions, Inc., 2018 U.S. Dist. Lexis 132185

The trial court did not err in giving a sudden emergency jury instruction in the trial of an accident stemming from a collision between two trucks.  The Court of Appeals in Texas held that there was evidence that the second truck turned suddenly causing the first truck to either strike the second truck or hit other stopped cars.  Dodson v. Munoz, 2018 Tex App. LEXIS 6192.

The statutory definition of employee under the federal rules could not be used by an insurer to deny coverage when an owner operator under lease to the insured was injured by a second owner operator in a truck accident. The Northern District of Illinois held that the definition of employee in the policy was the only thing to consider and liability for actions of owner operators would not be excluded,  Nat’l Cont’l Ins. Co. v. Singh, 2018 U.S. Dist. LEXIS 136941

The Court of Appeals in California held that a trucker’s insurer was not obligated to defend and indemnify a shipper who was sued for injuries suffered to a driver when he was retarping a load of hay. In a dispute between two insurers the court held that the driver was not in the process of loading or unloading the truck at the time of the accident when he fell of a hay squeeze while retarping the load.  Monteray Ins. Co. v. Peerless Indem. Ins. Co., 2018 Cal App. Unpub LEXIS 5124

Worker’s Compensation

A truck driver was unsuccessful in efforts to recover from the state for injuries suffered as a result of alleged negligent design of a roadway. The Court of Appeals in Oregon held that the state was immune from suit when the driver was entitled to worker’s compensation from his employer.  Sitton v. State, 2018 Ore. App. LEXIS 920

When a driver was injured showering at a truck stop he was not entitled to worker’s compensation benefits.  The Superior Court in New Jersey held that the act of showering was not in furtherance of his employment.  Kamenetti v. Sangillo & Sons, LLC., 2018 N.J. Super Unpub. LEXIS 1883

Cargo

A broker’s claim for breach of contract against a motor carrier for failure to pay for a cargo loss was upheld in the Northern District in Illinois.  The Court held that it was not preempted by the Carmack Amendment.  The court also noted that reasonable estimates were sufficient to support damages as long as there was a factual basis for the estimates.  Transco Lines v. Extra Logistics, 2018 U.S. Dist. LEXIS 141478

It has been a long time since we have seen a case on the commercial zone exemption.  The Northern District of Indiana denied the defendant’s motion to dismiss a cause of action claiming Carmack preemption. The court denied the motion, concluding that the transport from Chicago, Il to an adjacent suburb in Indiana was preempted because the transport was within the Chicago commercial zone and therefore not subject to Carmack.  Apex Compounding Pharm, LLC v. Best Transp. Services, 2018 U.S.  Dist. LEXIS 140595

The 6th Circuit held that a cargo insurer was obligated to indemnify a motor carrier for any liability that it had under a contract, even if the matter did not proceed to judgment.  The motor carrier had paid the customer for the value of cargo which was delivered without a seal.  The court held that the insurer waived the right to argue the “no payment” clause.   Dark Horse Express, LLC v. Lancer Insurance Co. 2018 WL 3738638

Have a marvelous Labor Day! See you next month.

Volume 21, Edition 7

Good Day Everyone!

I always get a kick out of sending our Bits N Pieces in July because it confirms to us that no one is working! I never get so many out of office emails as I do this month. I hope you are all having fun.

This month we report:

CVSA RESULTS. CVSA did an unannounced brake inspection this month. Almost 1,600 commercial motor vehicles with critical brake violations were put out of service. Fifty-two U.S. and Canadian jurisdictions conducted 11,531 roadside inspections on commercial motor vehicles and removed 1,595 vehicles with brake violations. 13.8 percent of the total number of vehicles inspected was placed out of service for brake violations.

ANTI-INDEMNITY. Rhode Island has signed into law a bill to prohibit indemnification clauses in trucking contracts. The rule outlaws provisions in contracts that provide for shippers to be indemnified for losses caused by their own negligence. This is good for truckers and insurers alike. States yet to adopt protections are Delaware, Mississippi, New Hampshire and Vermont.

18 YEAR OLD DRIVERS. The DOT has announced a pilot program that will allow military veterans and reservists who are 18-20 years old to operate large trucks in interstate commerce. A 60-day notice of the pilot program was released by the DOT. The pilot program will drop the minimum age for a commercial driver’s license in interstate commerce from 21 to 18 for those who possess the U.S. military equivalent of a CDL.

In other driver news the FMCSA published a proposal rulemaking that would eliminate eight instructional units from the required theory curriculum for individuals upgrading from a Class B CDL to a Class A CDL, concluding that these drivers were already advanced enough on these topes. The proposed topics of instruction that would be removed are located in the theory instruction portion of the Class A training curriculum, specifically, Section A.1.5, “Non-Driving Activities.”

The topics are:

• Handling and Documenting Cargo;
• Environmental Compliance Issues;
• Post-Crash Procedures;
• External Communications;
• Whistleblower/Coercion;
• Trip Planning;
• Drugs/Alcohol; and
• Medical Requirements.

CSA CHANGES. The FMCSA will not be implementing proposed enhancements to CSA. FMCSA issued a notice on July 10 that it was forgoing the proposed changes which included changes to the intervention thresholds, revisions to HAZ MAT BASIC and an increase in the maximum VMT.

HIGHWAY INFASTRUCTURE The Conditions and Performance Report of our transport system was recently released by the FHWA. The report was broken down into two chapters: freight transport and conditions and performance of the network. Of the 57,600 bridges along the freight network, 4.3 percent are structurally deficient. Nearly 31.5 percent of bridges on the network are 51 years old or older, and more than half are 26-50 years old. hat is an improvement compared with the national average of bridges on all roads. Of the 615,002 bridges throughout the U.S., nearly 9 percent are structurally deficient with nearly 40 percent older than 50 years old.

The report also addresses the congestion in the US. The top ten locations in 2014 are: Atlanta: I-285 at I-85 (north), Chicago: I-290 at I-90/I-94, Fort Lee, N.J.: I-95 at SR 4, Louisville, Ky.: I-65 at I-64/I-71; Houston: I-610 at US 290; Houston: I-10 at I-45, Cincinnati: I-71 at I-75, Houston: I-45 at US 59, Los Angeles: SR 60 at SR 57 and Houston: I-10 at US 59

As far as moving freight, trucks still lead the way, moving 64 percent of freight by tonnage and 69 percent of freight by value and growth is expected to continue by 45 percent by 2045 and the value of freight to increase by 84 percent. Comparatively, the weight of freight for all modes collectively is expected to increase by 40 percent, with the value forecasted to increase by 92 percent. Air freight value is expected to more than triple by 2045. To view the full report, click here.

Current Cases

AUTO
An insurance broker was spared the potential for liability for failure to procure adequate insurance for a trucker when the injured plaintiff failed to file the suit within the statute of limitations. The broker allegedly failed to make sure that the trucking company had an MCS-90 on the policy and the plaintiff was only permitted to recovery the policy limit of $100,000. The Eastern District of Virginia held that the statute of limitations started running when the policy was issued without the endorsement and not when the accident occurred. Penn v. 1st Southern Insurance Services, 2018 WL 3468366

An agent and an insurer were granted judgment on a claim that they failed to properly insure certain vehicles. The insured had entered into a settlement agreement, which it assigned to the injured plaintiff for recovery against the insurer and agent. The supreme court in Utah held as the insured suffered no actual damages there could be no claim against the broker for providing the insurer with the wrong schedule of vehicles. The insurer was held to have no vicarious liability for the actions of the agent. Espenschied Transport Corp. v. Fleetwood Services, 2018 WL 3322746

Werner Enterprises was afforded summary judgment on direct negligence claims when it agreed that it was vicariously liable for the actions of the driver. The Northern District of Texas did not accept the plaintiff’s argument that the federal safety regulations created a private cause of action, Fuller v. Werner Enterprises, 2018 WL 3548886

The New York Commercial Drivers Manual can be used by an expert as a basis for an expert opinion on the applicable standard of care with respect to the safe operation of a commercial vehicle. The guidance cannot be classified as a law or regulation. Hood v. Sellers, 2018 WL 3429708

One motor carrier is seeking recovery against its insurer on the basis that the insurer failed to promptly settle an underlying personal injury action. While the District Court in Texas held that the motor carrier had no claim for breach of a duty under the Stowers doctrine to settle but that it could continue its claims for violation of the Texas Insurance Code and breach of contract.  Medallion Transport & Logistics, LLC v. AIG Claims, 2018 WL 3249708

A motor carrier’s efforts to have a personal injury action dismissed on the grounds that the plaintiff failed to show the required $75,000 injury failed in the Middle District of Georgia. As plaintiff showed that he had suffered $300,000 in lost wages and over $100,000 in medical expenses the required amount was met. Hicks v. Stamper, 2018 U.S. Dist LEXIS 118752

A direct action will not lie against an insurer in Oklahoma when the motor carrier is not registered in that state. The Western District of Oklahoma rejected an argument that registration under the UCR constituted registration in every state for the purposes of the Oklahoma Direct Action statute Harness v. TWG Transportation 2018 WL 3318955

Texas also would not allow for a direct action by an injured plaintiff absent a judgment against the motor carrier. Plaintiff tried to circumvent the requirement of a judgment against the motor carrier by arguing that it was a third party beneficiary of the obligation of the insurer to defend and therefore could seek a declaration that the insurer had to defend. The court of appeals in Texas said no. Durham v. Hallmark County Mutual Insurance Co. 2018 WL3469257

After suffering the impact of a 32.5 million verdict a motor carrier was hit again with prejudgment interest in the amount of 4.8 million. The Indiana Court of Appeals held that the plaintiff met the requirements of the Indiana statute allowing for prejudgment interest by making an offer to settle within the time limits of the statue and granting the appropriate time for a response, which was not made. J.B. Hunt v. Zak, 2018 WL 3450523

A motor carrier was granted summary judgment on a suit seeking damages for a rear end collision. The Southern District of Alabama held that there was inadequate evidence that the driver failed to act reasonably in trying to avoid the rear end collision. The Court also held that the motor carrier was not liable for negligent failure to inspect the brakes. Smith v. Liquid Transport Corporation, 2018 WL 3432532

The District Court of New Jersey denied a plaintiff’s effort to obtain summary judgment against a motor carrier on the theory that the motor carrier violated the careless driving statute. The court held that there was insufficient evidence to support such a conclusion, also allowing plaintiff’s BAC to be admitted into evidence, and denied plaintiff’s request for a spoliation ruling against defendant. Ortiz v. Adams, 2018 WL 3410027

A plaintiff was precluded from seeking to file a claim against a liability truck insurer when the plaintiff failed to have a judgment against the motor carrier. The Appellate Division in New York held that plaintiff could not assert a claim of fraud simply based upon the fact that plaintiff had a difficult time ascertaining who the insurer was. Carr v. Haas, 2018 WL 3383595

Following a bench trial in the Southern District of Indiana the court held that a motor carrier was vicariously liable for the negligence of a truck driver. The driver, who looked down trying to find his cell phone, struck and injured the plaintiff. Verdict was rendered for $500,000 for the injuries suffered. Smith v. Triple B Trucking, 2018 WL 3424302.

Over in the Louisiana Court of Appeals the appellate court upheld a jury verdict against a truck driver and a motor carrier for a fatal truck accident. The motor carrier itself was found 90% at fault for putting a 6-7 year old thrice treaded and plugged tire on the truck which blew and caused the incident. Mouton v. AAA Cooper, 2018 WL 3454989

While another Louisiana Court of Appeals upheld a defense verdict concluding that a driver and his trucking company, also AAA Cooper, were not liable for injuries plaintiff claimed she suffered when the driver allegedly backed into her. The Court disagreed. Mace v. Turner, 2018 WL 3479226

A driver and his employer were also granted summary judgment in a personal injury action where the plaintiff ran a red light. The court held that there simply was no evidence that the truck driver was inattentive, driving too fast or failed to react properly. Bravo v. Hernandez, 2018 WL 3357779

A motor carrier was found not to be liable for injuries suffered when a driver struck the plaintiff’s home resulting in substantial damage to the home. The accident was caused when the driver suffered a fatal heart attack and lost control of the vehicle. Following a bench trial in Pennsylvania the court concluded that this was an unforeseen event and liability would not be assessed against the motor carrier. The court also held that plaintiff failed to establish the necessary elements for negligent or fraudulent misrepresentation when plaintiff claimed that the motor carrier agreed to pay for the damages. Knight v. J.B. Hunt, 2018 WL 3454026

Last month we reported on a case asserting liability against a truck driver for failing to check to see if there was anyone sleeping under his truck before he moved it (see last month’s Bits N Pieces). This month the Eastern District of Tennessee concluded that the plaintiff could not assert a claim for negligence per se based upon the federal motor carrier safety regulations. The court held that it did not give rise to a private cause of action and therefore could not support such a cause of action. Steinberg v. Luedtke Trucking, 2018 WL 3233341

Judgment was affirmed against a motor carrier for damages suffered when an oil tanker overturned and spilled onto the plaintiffs’ property. The Supreme Court in Maine held that the plaintiff was not required to show a specific depreciation in the market or rental value of the property because the interference was more than mere physical discomfort or mental annoyance. West v. Jewett & Noonan Transp., Inc., 2018 ME 98

A trucking company was successful in having a personal injury suit dismissed following a failure of the plaintiff to respond to discovery. The Western District of Louisiana held that the plaintiff was given more than enough time to respond to the demands. Cascio v. Balkan Express, 2018 U.S. Distr LEXIS 119648

CARGO
Does a contributory negligence statute apply when a cargo claimant seeks recovery both from the motor carrier it hired as well as a second party who was involved in a truck accident? The District of Nebraska held that it does. The court rejected the plaintiff’s argument that a contributory negligence statute was preempted by the Carmack Amendment, concluding that its application did not prevent the shipper from recovering its Carmack damages. Plaintiff’s recovery against the remaining defendant was reduced by the proportionate share of liability of the settling Carmack defendant, and not just the settlement amount. The court also granted summary judgment to the Carmack carriers on the cross-claim for contribution brought by the co-defendant.  Certain Underwriters at Lloyds v. Southern Pride Trucking, 2018 WL 3158821

The steps necessary to support a default judgment on a Carmack claim were set forth by the Northern District of Texas. As the plaintiff was able to sustain its burden of proof it was successful in obtaining the judgment. Interface Printers,  LLC v. BGF Global, LLC., 2018 U.S. Dist LEXIS 115344

The Carmack Amendment preempts claims for mental anguish. However the Middle District in Louisiana held that the motor carrier was not entitled to judgment on its limitation of liability as it failed to sustain its burden of proof that it had complied with the requirements necessary to invoke the limitation. Diezelski v. All My Sons Moving & Storage of Baton Rouge, Inc., 2018 U.S. Dist LEXIS 105698

Worker’s Compensation
We routinely see multiple companies set up by one principle to cover various services related to a business. In the District Court in New Hampshire the court considered whether a trucking company would be entitled to the defense that worker’s compensation was the exclusive remedy when the injured party worked for one company while helping the truck driver put chains on his truck. The court held that there were questions of fact as to whether the companies were alter egos (which would allow for the remedy to apply) or whether the borrowed servant rule applied to the parties involved. Young v. Douchette, 2018 WL 3321435

The Court of Appeals in Kansas held that the Worker’s Compensation Board lacked the jurisdiction to set aside an award entered by an Administrative Law Judge. The court held that the motor carrier failed to contest the award before the ALJ and therefore could not seek to have it set aside. Castaneda v. ALG Transport Services, 2018 WL 3320932

The Appellate Court in Illinois held that a truck driver failed to establish that the repetitive action of opening and closing a trailer door which was not working properly actually caused work related damages. Campbell v. Illinois Worker’s Compensation Board, 2018 IL. App(3d) 170725

Jury Verdicts
$101,000,000 – A truck accident resulted in a verdict of $101 million for a tractor-trailer accident the first place. The jury in the district court in Upshur County, Texas found the trucker to be 70 percent at fault and the trucking company 30 percent responsible for the crash. The trucking company was found to have violated its own procedures in hiring and retaining the driver. Patterson v. Acker

$0 – defense verdict in Montgomery County Pennsylvania – The plaintiff claimed defendant motor carrier negligently moved its truck when she was trying to pass, The jury found that the defendants were negligent but that their negligence was not a cause of bringing harm to the plaintiff and returned a defense verdict. McMearty v. Pegler

$823,046 – rear end collision in Los Angeles County, California. Plaintiffs’ struck in the rear by truck. Garcia v. Hernandez

Enjoy summer. See you next month

© 2018 Central Analysis Bureau