CASE UPDATE: Truckers granted class status on lumping coercion claim

| 3/18/2008

Monday, March 17, 2008 – Coerced lumping is in OOIDA’s crosshairs, and a ruling last week by a federal judge increased the size of the bull’s eye on grocery distributor SuperValu Inc.

In an order filed Friday, March 14, U.S. District Judge John R. Tunheim granted a request by OOIDA and truckers to consider whether to allow thousands of truckers to include a key claim that SuperValu not only “required” owners and operators to use and pay lumpers, but also “attempted to coerce” drivers to hire lumpers.

“The Court agrees with the plaintiffs (truckers),” the judge wrote in response to OOIDA’s request that thousands of truckers be included in the class-action claim that SuperValu’s proof of insurance coverage requirements in 2005 attempted to coerce drivers to use and pay for lumping services at its docks.

“They were requiring excessive insurance coverage as a means of forcing drivers to pay for unloading services,” said Jim Johnston, OOIDA president and CEO. “That’s a clear violation of federal law.”

A trial in the case is scheduled for September this year in the U.S. District Court in Minneapolis.

OOIDA and the truckers are asking that SuperValu be forbidden from requiring or attempting to coerce truck owners and operators to have insurance in excess of federally required minimums and that it be forbidden from requiring presentation of insurance documents that are not readily available to drivers who are in compliance with federal insurance and licensing laws.

In the Friday order, the judge stated that he flatly disagreed with SuperValu’s arguments against class certification. The judge pointed out that OOIDA was not asking him to certify a claim by drivers who had actually been coerced, but rather for drivers that SuperValu attempted to coerce.

“Defendant is correct that there may be certain circumstances where drivers’ choices would not have been influenced by SuperValu’s insurance policy. But this merely indicates that attempts in those circumstances would not have been fruitful; not that the attempts did not occur,” the judge wrote.

“... In other words, the possibility of different effects on the drivers does not preclude class certification on the question of whether there was a single, company-wide ‘attempt to coerce.’ ”

The truckers’ case – filed in December 2005 – contends that a SuperValu policy that was in effect for several months in 2005 violated federal law because it forced truck owners and operators to pay for lumping services at SuperValu docks.

“A victory in this case will benefit not only the truckers who were actually charged the unloading fees, but all truckers because of the clear signal it will send throughout the industry that these types of abuses will no longer be tolerated,” said OOIDA’s Johnston.

There is also potential for the case to benefit some motor carriers because the class includes not only the truckers who were behind the wheel, but also the entities with the operating authority for those trucks.

The class for the case includes owners and operators of motor vehicles hauling property in interstate commerce who between March 28, 2005, and Dec. 22, 2005, delivered “carrier loads” to Supervalu and did not at the time of delivery have in effect the insurance then required by Supervalu as a condition to their unloading their own trucks and paid for lumpers.

Among the issues that spurred the federal class-action lawsuit were SuperValu’s requirements related to insurance, which were instituted in March 2005. They required truckers to have and show proof of general liability insurance of $3 million annual aggregate and $1 million per occurrence limit, plus automobile liability insurance of $1 million combined single limit coverage and fidelity bond or crime insurance of $50,000. The fidelity bond or crime insurance requirement was eliminated after initially being posted.

Section 31139(b) of the United States Code requires those who transport property by commercial motor vehicle to only carry insurance of at least $750,000.

Truck owners and operators who delivered to SuperValu docks and did not have proof of the extra insurance coverage that the grocery distributor required were forced to pay for lumping services – and that’s what spurred the lawsuit.

After the federal lawsuit was filed in December of 2005, SuperValu revised its policy and now requires drivers who wish to unload their own vehicles only to show proof of compliance with the insurance requirements in the federal law. However, the case is moving forward to resolve issues related to the several months in 2005 when the extra insurance was required.

– By Coral Beach, staff editor