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Bits & Pieces

Volume 17, Edition 3

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Very quiet month this time around.  I think everyone is just worn out from winter and not interested in much.  So the report will be brief.  Enjoy the spring.

APRIL TRAINING SESSION – Here are the training sessions upcoming in April:

CAB Basic Training April 8 at 2:00 PM EDT. To register:

https://www1.gotomeeting.com/register/670900601

CAB Focus Training April 9 at 2:00 PM EDT – The CAB Focus session will be on understanding shared units in the Carrier Search Page, the CAB Report and VITAL. To register:

https://www1.gotomeeting.com/register/290886984

ELECTRONIC ON BOARD RECORDERS – The FMCSA has published its proposed rulemaking on the use of electronic logs recorders.  The rule is a supplement to the 2011 rulemaking which was challenged by various organizations.  The supplemental rule sets out protocols which will permit reports to stay with the motor carriers and drivers while still being made available to the FMCSA during roadside inspections, compliance reviews and post-crash investigations. There is an explicit prohibition on harassment by a motor carrier owner towards a driver using information from an ELD. It will also establish a procedure for filing a harassment complaint and creates a maximum civil penalty of up to $11,000 for a motor carrier that engages in harassment of a driver that leads to an hours-of-service violation or the driver operating a vehicle when they are so fatigued or ill it compromises safety. The rule will also make it more difficult for a driver to cheat when submitting their records of duty status and ensuring the electronic logs can be displayed and reviewed electronically, or printed, with potential violations flagged. More information on the Supplemental Notice of Proposed Rulemaking on Electronic Logging Devices  is available here.

CSA AUDIT REPORT – The Inspector General has issued its report after an audit of the DOT CSA program.  While recognizing the benefits and successes of the program, the report also makes recommendations for improvement, focusing on the widespread use of the system by the general populous.  A copy of the report can be viewed here.

SCOFFLAWS FACING DEACTIVATION OF DOT NUMBERS – The FMCSA has begun the process of deactivating carriers who have failed to update their Unified Registration System data. All carriers are required to update their URS registration biannually. Every month the agency will proceed with purging carriers two months beyond deadline.  This is designed to clean up the data, leaving only truly active carriers with DOT numbers.

DRIVER STATISTICS – An eight-year analysis of driver age and tenure conducted by Sylectus, a business unit of Omnitracs Canada Inc. was released this month.  The report identified an increase in driver age and a decrease in tenure for both male and female drivers.  The average age of male drivers is 48 and for woman the age is 51.  92% of drivers are male. The average tenure for a male driver is two years, with woman holding steady for a shorter period of time.

SURFACE TRANSPORTATION ON THE RISE – The BTS released its report on the rise of surface transportation, concluding that three of the five transportation modes — the surface transportation modes of truck, rail and pipeline — carried more of the NASFTA trade between Mexico and Canada by value in 2013 than in 2012 while the value of freight transported by air and vessel decreased.  Trucks carried 59.7 percent, followed by rail at 15.4 percent, air at 9.1 percent, pipeline at 7.3 percent and vessel at 3.8 percent.

Michigan led all states in trade with Canada in 2013 with $74.6 billion. Of the top 10 states for U.S.-Canada trade in 2013, Washington had the highest percent change over 2012, a 6.4 percent increase.  The top commodity category transported between the U.S. and Canada in 2013 was mineral fuels at $134.1 billion with $79.2 billion or 59.1 percent moved by pipelines. The next highest commodity category transported by a single mode in U.S.-Canada trade was vehicles and vehicle parts (other than railway vehicles and parts) with $66.1 billion in trade moved by trucks.

Most U.S.-Mexico trade in 2013 (80.8 percent) was carried on the surface modes of truck, rail and pipeline. Trucks carried 66.2 percent, followed by rail at 13.8 percent, vessel at 13.3 percent, air at 3.0 percent and pipeline at 0.8 percent.  Texas led all states in trade with Mexico in 2013 with $195.6 billion. Of the top 10 states for U.S.-Mexico trade in 2013, Illinois had the highest percent change over 2012, a 22.5 percent increase. The top commodity transported between the U.S. and Mexico in 2013 was electrical machinery at $94.2 billion with $85.1 billion or 90.4 percent moved by trucks. The next highest commodity category transported by a single mode in U.S.-Mexico trade was mineral fuels with $50.3 billion in trade moved by vessel.  You can see all of the data and charts here.

OUT-OF-SERVICE REPORTS – One thing the FMCSA was busy with in March was out of service orders for truck & bus companies and drivers. Here are the orders issued in March: D’Boston Transportation, LLC, DOT # 2456132, SERV-A-BUS, LLC, DOT # 1161287, Woodburn’s Tour and Travel, LLC dba Woodburn’s Motor Coach, DOT # 2181163, Motts Transportation, Inc. DOT # 828452, Allen Quandahl, LLC, DOT $ 1964143 and GEG Construction, Inc. and Gil Gomes, DOT # 1503585.

CASES

AUTO

The Eastern District of California considered the evidence necessary to determine whether a vehicle fell within the “hired or borrowed” car coverage, concluding that evidence of dominion and control over the tractor needed to present for that coverage to be triggered. The Court also held that if the accident did not arise out of the use of the trailer, even if owned, the auto coverage could not be attached to the loss that way.  (Travelers Property Casualty Company of America v. LK Transportation, 2014 WL 996235)

It is rare that we actually see an insurer who actually collects reimbursement from a motor carrier for payments made under the MCS-90.  This month the Middle District of Tennessee held that a motor carrier insurer was entitled to reimbursement for all remediation costs paid to the EPA following a truck accident.  (Consolidated Insurance Co. v Damron Trucking, 2013 WL 935306)

Whether anyone is obligated to check on a motor carrier or driver’s safety records is working its way through the court system, with a few cases this month.  In the Middle District of Pennsylvania, the Court allowed a claim against a shipper for injuries suffered by the plaintiff in a truck accident to proceed. The Court concluded that because the shipper had not checked the safety records for the motor carrier, which indicated a consistent failure to comply with safety regulations, the shipper could face exposure for the injuries suffered.  (Sewatsky v. Custom Polymers, 2014 WL 866469)  The same Court also denied a trucking company’s motion to dismiss a punitive damage claim for negligent hiring, concluding that the failure to check a driver’s record and evaluate his prior violations of public records was enough to raise the potential for punitive damages.  (Stemrich v. Zabiyaka, 2014 WL 670919)

Over in the Northern District of Illinois the Court held that a shipper would not be liable for injuries in a truck accident simply because the shipper had not checked the carrier’s safety records.  The Court concluded that as there was no evidence that shoddy vehicle maintenance, which was the reason for the bad safety scores or had anything to do with the accident so the shipper’s failure to check would not give rise to a claim for negligent selection.  (McComb v. Bugarin, 2014 WL 793103)

The Western District of Texas held that an insurer could proceed with its declaratory judgment action in Texas, despite the fact that the underlying personal injury action was pending in Tennessee. The Court held that there was no reason to abate the case pending the resolution of the state court action as the insurer was not a party to that action and would be entitled to litigate the issues which impact its coverage determination. (Canal Insurance Co. v. XMEX Transport, 2014 WL 841554)

The effort of a lessor’s insurer to modify its policy to make it contingent when vehicles were leased to other carrier was successful in the Appellate Court in Illinois.  The Court held that the contingent endorsement was not ambiguous and that the insurer had not waived the application of the endorsement by failing to plead it as an affirmative defense. (Justin Time Transportation v. Harco National Insurance Co., 2014 WL 868634)

Sometimes it is just impossible to know when to remove a case.  The Eastern District of Pennsylvania held that removal of an action only after the plaintiff specifically pled that damages were in excess of $75,000 was untimely. The Court held that the initial complaint, which did not specifically allege that damages were in excess of $75,000 but alleged extensive injuries should have placed the defendant on notice that the damages were in excess of $75,000, thus triggering the 30 days for removal. (McMillan v. Wilkie Trucking, 2014 WL 695583)

CARGO

The Southern District of New York was quite prolific this month in just one case, issuing 3 opinions on cargo loss involving a shipment from Mexico to Texas. In the first decision, a rail carrier sought to invoke its contractual limitation of liability. The Court denied the rail carrier’s motion that it had established a contractual agreement permitting the limitation of liability under the contract carrier provisions of the ICCTA.  When faced with considering whether the limitation of liability was in accordance with the requirements of the Carmack Amendment the court held that the evidence was insufficient to establish the required Carmack steps.  (Chartis Seguros v. HLI Rail & Rigging, 2014 WL 988585)  In a second decision the Court denied summary judgment to the plaintiff and the broker/forwarder, for, among other reasons, concluding that there were questions of fact as to whether the party was a broker or a forwarder.  (Chartis Seguros, 2014 WL 988569)    And finally in the case for insurance coverage the court denied summary judgment to an insurer, concluding that a parties reliance of certificates of insurance which indicated coverage was in place for transit losses. (Chartis Seguros, 2014 WL 988574)

Identity theft hits carriers from many different angles. This month the Eastern District of New York held that a motor carrier was not liable when it delivered goods to a thief who had scammed both the shipper and the carrier. The loss, the Court determined, was caused by the act of the shipper in failing to authenticate its own customer and was not the fault of the motor carrier.  The Court also dismissed all non-Carmack causes of action under the preemption doctrine.  (Lewis Brass & Copper Company v. ABF Freight System, 2014 WL 991726)

What happens when a carrier agrees to a freight rate which is based upon its cargo insurance of $100,000 and then turns around and brokers the load to another carrier, exposing that carrier to a higher value loss?  That was the question in the Northern District of North Carolina.  The Court held that a Deceptive Trade Practices Action against the carrier/broker must fail because the DTPA statute was preempted by the FAAAA. The Court held that the claim for intentionally failing to declare value to get a reduced rate was a claim which directly related to the carrier’s rates and services and was therefore preempted.  (Gregory Poole Equipment Co. v. ATS Logistics, 2014 WL 1053517)

The District of Columbia considered the impact of other federal statutes on the ICCTA rule which allows only 180 days for billing disputes.  The Court held that there was a question of fact as to whether the Government would be entitled to assert a 3 year statute under another statute which permitted the government to conduct post contract audits for 3 years.  (National Motor Freight Transportation v. GSA, 2014 WL 958599)

Although the Carmack Amendment does have venue provisions, the Eastern District of California held that a forum selection clause in a contract of carriage would be enforceable. The Court granted the motion to transfer the case to Texas. (Minard v. Green Van Lines 2014 WL 793988)

If a shipment is rejected simply because there is no temperature recording present at delivery is the carrier liable for damages?  The Western District in Louisiana held that there was a question of fact as to whether the need for a temperature recording was a term of the contract.  The Court also held that there was a question of fact as to whether the product would be deemed damaged if the temperature recording was not present.  (Farmers Seafood Co., Inc. v. FFE Transportation Services, 2014 WL 782887)

The 5th Circuit held that the motor truck cargo liability policy issued to the motor carrier was a property policy and not a liability policy. Accordingly the policy was subject to the Texas Anti-Technicality statute.  The fact that a policy warranty that all terminals would be fenced was breached was held to be irrelevant where the Court concluded that the thief entered through the area that was fenced.  (W. W. Rowland Trucking Co. v. Max America Insurance Co., 2014 WL 685217)

The Southern District in Ohio granted judgment to a truck broker seeking recovery from a motor carrier for a shipment which was allegedly delivered warm.  The Court rejected the driver’s arguments that the problem was caused when the shipment was not promptly unloaded after he told the consignee the fan belt broke on the unit.  The Court also rejected the contention that the cargo, a shipment of Sara Lee, had salvage value, acknowledging that brand value warranted disposal of the shipment if it did not meet the customer’s quality standards.  (Total Quality Logistics v. Mactoon, 2014 WL 656622)

The Supreme Court in Wyoming held that an insurer was not estopped from denying coverage simply because it paid a similar claim in the past for a physical damage loss. The Court held that in the first case, where the rear wheels on the trailer left the ground on the first claim the insurer was correct that it was an overturn.  In the claim which was the subject of the suit there was no upset. The Court also held that the broker was not liable to the insured because there were no coverage under the policy for the loss.  (Lewis Holding Co v. Forsberg Engerman Co., 318 p. 3D 822)

Happy Easter and Passover to all.

© 2019 Central Analysis Bureau