Delivering COVID: Trucking Concerns in the Pandemic Age
December 20, 2020
One of the few industries in this country that has expanded during the COVID-19 pandemic is the trucking industry. From the early shelter-in-place rules to the present patchwork of rules, home deliveries have increased exponentially, and this swell is likely to remain for many months, and perhaps years, because consumer habits have evolved to embrace home delivery on a grand scale. But what happens when the scientific evidence on transmission is ever changing, and even the best mitigation efforts are insufficient to guarantee that shipments don’t deliver COVID along with that freezer? What liability does the trucking industry face, and will insurers provide defense and indemnification for these types of losses?
Liability vs Insurance Coverage; What’s the Issue?
Let’s unload some of the legal issues that COVID creates. First, there are the liability issues. Can a trucking company really be held liable for transmission of COVID? How much of a threat is it? Second, there are the insurance coverage issues. Will a trucking company be covered by any of its various insurance policies if it is sued for allegedly exposing someone to COVID? Will there be a cargo claim if this contamination can be proven? What types of insurance policies would address these types of claims?
The reason these questions are so difficult to sort out for most lawyers in the transportation industry is that most lawyers are either defense lawyers or coverage lawyers, and there is a real allergy between the two disciplines. This is usually for good reason. When defense counsel is retained to defend a motor carrier and its driver, they are often retained by an insurance company. Since the insurer is paying their legal fees, they are prohibited by the rules of ethics from opining on any insurance coverage issues because it is a conflict of interest to do so. They thus generally avoid any coverage discussions. Likewise, an insurance coverage lawyer needs to review coverage with an unbiased eye that looks at the language of the policies and does not become involved with liability theories, which are often confused with coverage issues.
These differences may feel like trying to mix oil and water, but it is important for the trucking industry to have a good understanding of both. Knowing the likelihood of facing liability for COVID transmission claims and what type of insurance products might cover such claims helps trucking companies plan. And in the end, liability for damages and insurance premiums are both business expenses. Particularly in this pandemic, the trucking industry needs to be as informed as possible about expenses.
Liability for COVID?
While the chaotic early days of the pandemic caused the trucking industry to focus on employment and business considerations with regard to layoffs and shipping contracts, the legal issues that are now engulfing the industry center on liability to the public. Can deliveries of takeout food, groceries or other cargo create potential liability for COVID transmission? How likely is it that a trucking company will be sued?
The good news is that, lately, most epidemiologists are conveying the theory that the virus does not survive long on hard surfaces, and that deliveries are on the safer end of the risk spectrum. The bad news is that this is in part because the focus has been on the risk of transmission between the commencement of the transaction – packaging – and the end of the transaction – the consumer. Those in the transportation industry, however, know that this analysis is missing an important component; transportation. Indeed, it could be that the most likely vector of transmission is the motor carriers in between those two points. Virus spread between the worker who packages the actual item of commerce and the ultimate consumer is low because of the length of delivery times. The virus does not seem to survive on hard surfaces for longer than a couple of days, even those surfaces that are more or less porous. Thus, if a plant worker packaging the product has COVID, it is unlikely that the virus will be transmitted to the consumer. But what about the shipping process? What if the delivery vehicle is not cleaned properly, or the delivery person has COVID and rings the doorbell, is standing too close unmasked and coughs directly into the recipient’s face? Can the trucking company be sued?
The short answer is yes, there can be a cause of action for negligence. That is because this is America, and while frivolous lawsuits can be dismissed, there is no mechanism to keep them from being filed in the first place. The type of lawsuit that one would expect to see is one where a consumer has evidence such as a porch surveillance camera that shows a delivery employee, unmasked and ungloved, ringing the doorbell, standing directly in front of the screen door and then coughing into the unsuspecting (unmasked?) face of the homeowner and then cheerfully admitting that they had COVID or had been recently exposed to it.
The likelihood that all of these elements of proof are available highlights the difficulty in prevailing on that type of lawsuit. And that is because causation is an element of proof. We all remember the Palsgraf train platform case from law school. The focus of the case was on how remote causation has to be, and how many intervening causes are enough, to break the chain of causation.
Here, there are a lot of potential intervening causes. To be successful, that customer has to be able to prove that there was not another intervening cause of transmission. How can a jury be sure that it was not a doctor’s office, the gas station, a public restroom or a public event that caused the transmission instead? An effective defense would of course include a deep dive into absolutely every place the claimant had been in the weeks leading up to and following the fateful delivery date, Since the incubation period is (supposed to be) 14 days, and there currently is at least a few days from testing date to testing results, the window of relevant dates can be broadened quite a bit to include not only any interactions in the 14 days before the delivery, but any interactions between that delivery and the time the claimant became sick. Add to that the delay between feeling ill and deciding a COVID test is in order, and the window of relevant dates is more than 30 days.
While there are some in the population who literally do not leave their home ever, this segment of the population is obviously much smaller than the general population. Moreover, even if a claimant could prove that they never left the house during that time period – not even once – they would have an even slimmer chance of proving that they never received another package, visitor or other transmission vector, since the homebound would be more dependent than ever on deliveries. Thus, the likelihood of a blooming industry of claims against the transportation industry is not likely to be as great as is feared.
Some litigation on this front, however, is to be expected. For example, if that front porch surveillance camera shows all other deliveries being executed pristinely, except for our hapless employee, and the sympathetic homebound elderly cancer survivor who has opened the door can prove they have been nowhere, litigation might ensue.
So is there insurance coverage for that?
If a transportation company does get sued for delivering an unwanted exposure to COVID, the next question is whether its insurer will defend and indemnify it from the lawsuit. This is important to the transportation industry because insurance policy premiums are predictable, annual expenses that trucking companies can work into their business plans, year after year. But if there is not insurance coverage for these types of losses, or insurance coverage is questionable, they will either face unpredictable and potentially expensive defense costs or, even worse from their perspective, defense costs with an insurance coverage declaratory judgment lawsuit thrown into the mix. That might be enough to wipe out a trucking company. Or maybe an industry. Thus, it is important to look at this issue carefully.
What insurance products might cover this type of case, and what is the likelihood that there will be coverage for a COVID liability claim are critical questions. First, we must stop here for the unavoidable caveat that whether coverage is available depends on both the language of the policy in question and the law of the state where it is being enforced. Second, due to the unique nature of COVID, this is a cutting-edge area of law that is nowhere near resolved, so the goal of this article is to discuss the relevant coverage issues to help you on your way.
Generally speaking, there are three main types of insurance policies that the transportation industry purchases: commercial auto policies; commercial general liability (CGL) policies; and inland marine policies.
With regard to commercial auto policies, same are meant to cover liability arising from vehicular travel. In contrast, commercial general liability policies generally exclude exactly those types of damages because the two types of policies are not meant to overlap. The reason for this is straightforward. Underwriters have to evaluate known risk and spread it out over a population where the specific distribution of risk is unknown. Thus, it is important to group risk for a particular insurance policy product in such a way that they do not overlap. In the context of our COVID-positive deliveryman hypothetical, then, while there might be an issue as to whether coverage comes under the commercial auto policy or the CGL policy, it is unlikely that it will fall under both.
The next question is thus, are these damages caused by the use of a motor vehicle? Or is it a general liability problem that has nothing to do with the transportation function of the vehicle? Or does this have something to do with cargo?
Unfortunately, the answer to this question depends on the language of the policy and the law of the specific state involved. No-Fault states often require liability to arise from the “use of a motor vehicle as a motor vehicle,” or language to that effect. Other states focus on whether the vehicle is moving, or the accident occurred in or around the vehicle. Once the cargo is removed from the vehicle and, say, carried across the homeowner’s front lawn, it might have nothing to do with the vehicle. Or does it? If the sole business endeavor of the trucking company is transportation, will the argument be that everything it does arises from the use of the truck?
With regard to a CGL policy, the question is the reverse. Does the CGL policy apply when it will undoubtedly have a transportation exclusion that is often quite expansive; extending to any activity that has anything to do with transportation? Is there a gap between commercial auto and CGL policies such that neither policy applies? A case can be made for this argument because the language of the two types of policies are often not exact mirror images of each other. Again, the law of the state in question must be reviewed and applied to that policy language.
And what about cargo insurance? Cargo claims would not be brought by the consumer of the cargo who claims they were exposed to COVID during a delivery, but the filing of a liability lawsuit by that homeowner could conceivably trigger a cargo claim that attempts to argue that contaminated cargo is damaged and the entire load must be discarded. This seems like an unlikely stretch. Besides the obvious evidentiary issues that will plague this inquiry – how can the COVID transmission be proven – inland marine policies were not originally written to cover this type of event. By way of background, inland marine policies were first written when the transportation industry shifted from shipping on boats to land transfer. That is why they are called inland marine policies when they often have nothing to do with any type of “marine” shipping. Thus, the type of factual scenarios contemplated by these original policies might have considered contaminants like moisture and pollutants, whose effects are visual, but would not have contemplated an invisible virus with extremely questionable contamination risk.
As with the application of commercial auto and CGL coverage issues, cargo claims for COVID contamination depend on the language of the policy and the law of the state where they are brought. This makes it hard to evaluate whether coverage would be provided, but it seems unlikely to be a serious threat.
What about MCS-90?
Last, we must also look at MCS-90. MCS-90 is intended to protect the public from certain types of harm arising from interstate commerce or, in the case of hazardous material, intrastate commerce too. It is not insurance coverage; it functions more as a surety. It thus does not require the insurer to defend its insured, but where it applies, it does require the insurer to pay a judgment against its insured. The amount paid, however, must be repaid by the insured because MCS-90 is meant to protect the public from personal injury and property damage, not the insured. It thus does not provide coverage for bodily injury to the carrier’s driver, or for the cargo.
This leads to an interesting issue in our COVID hypothetical. Is virus contamination damage to the public? In our scenario, the claim is being brought by the sick homeowner who was exposed to the virus, so arguably it could fall under MCS-90, although this would be a novel application. There is no case law that has yet to evaluate this claim, but it is not impossible to imagine one. Still, the threat seems low.
So what do I tell my clients?
At the end of the road, in order to review, react and plan for liability arising from COVID, it is important to recognize that the risk of a liability or cargo claim being made for COVID-transmission is probably lower than is feared, but the risk of protracted coverage litigation is probably higher. Developing an understanding of how this affects the trucking industry is the first step in developing a plan to respond to the effect of the pandemic on the industry.
Article published in Transportation Lawyers Association’s December 2020 TLA publication, Vol. 22, No. 3.
For further information on this topic, contact Karen Libertiny Ludden.
 Smith, Jennifer. “Truckers are Seeing Growing Freight Volumes.” The Wall Street Journal, 03 Sept. 2020; McNealy, Jennifer. “ACT Research: K-Shaped Recovery for US Economy, V-Shaped Recovery for Freight Economy.” ACT Research, 24 Sept. 2020, .
 Reuters. “Business Could Face Billions of Dollars in Lawsuits From Employees Who Brought Covid-19 Home to Relatives.” NBC News, 28 Sept. 2020,
 “How Long Will Coronavirus Survive on Surfaces?” Cleveland Clinic, 5 Aug. 2020, https://health.clevelandclinic.org/how-long-will-coronavirus-survive-on-surfaces/.
 Earle v. Kuklo, 26 N.J.Super. 471; 98 A.2d 107 (App.Div.1953); Mussivand v. David, 45 Ohio St.3d 314; 544 N.E.2d 265 (1989).
 Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).
 See, e.g., Bourne v. Farmers Ins. Exchange, 449 Mich. 193; 534 N.W.2d 491 (1995); Auto-Owners Ins. Co. v. Rucker, 188 Mich. App. 125; 469 N.W.2d 1 (1991).
 Canal Ins. Co. v. Coleman, 625 F.3d 244, 247 (5th Cir.2010); Carolina Casualty Ins. Co. v. Yeates, 584 F.3d 868, 878 (10th Cir.2009).
Id; Canal Ins. Co. v. Underwriters at Lloyd’s London, 435 F.3d 431, 442 n.4 (3rd Cir.2006).