AUGUST 30, 2021
Commercial Trucking Accidents and the Broker Responsibility
Broker and Shipper Liability for hiring Negligent Carriers
Negligent truck drivers often cause car and truck accidents that result in catastrophic motor vehicle accidents which can end in severe bodily injuries or wrongful death. Truck drivers and motor carriers must comply with the Federal Motor Carrier Safety Regulations (FMCSR). Those regulations are very specific and they affect not only motor carriers, but also Brokers who hire motor carriers.
Who is the employer?
49 CFR § 390.5 defines Employer to be "Employer means any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it, but such term does not include the United States, any State, any political subdivision of a State, or an agency established under a compact between States approved by the Congress of the United States."
49 CFR § 13102 defines a Broker. The term "broker" means a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.
49 CFR § 13102 defines an Individual Shipper to mean, "(13) Individual shipper. The term "individual shipper" means any person who—
- (A) is the shipper, consignor, or consignee of a household goods shipment;
- (B) is identified as the shipper, consignor, or consignee on the face of the bill of lading;
- (C) owns the goods being transported; and
- (D) pays his or her own tariff transportation charges."
49 CFR § 13102 defines control as to be (5) "Control. The term "control", when referring to a relationship between persons, includes actual control, legal control, and the power to exercise control, through or by—
- (A) common directors, officers, stockholders, a voting trust, or a holding or investment company, or
- (B) any other means."
When you have suffered a loss from a severe tractor-trailer accident with when a large truck hits your car, pickup or motorcycle, it is important to have a lawyer that understands that Brokers and Shippers in the motor carrier and trucking industry can become responsible for negligently selecting a trucking company or motor carrier. This doctrine of law is generally called negligent selection.
Case law, and the broker's responsibility for the truck haul
In Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237, 1983 Mo. LEXIS 402 the court held that the broker was instrumental in launching and directing the truck journey and therefore, the broker and trucking company were acting as a joint venture. The court also held that no particular formalities were necessary for a joint venture and "there may perfectly well be a joint venture for a single truck haul. Id. at 241."
It is the actions of the parties that govern whether joint venture liability exists, and the parties may be estopped in favor of third persons from denying that they are joint venturers, even if they never intended to become such. Shell Oil Co. v. Prestige (9th Cir. Idaho 1957 249 F.2d 413).
In evaluating the liability of the motor carrier, the broker or the shipping company, many courts across the United States have held that the trucking industry is inherently dangerous.
Commercial trucking is an inherently dangerous activity involving an unreasonable risk of harm to others. Hodges v. Johnson (D.C. Va. 1943), 52 F. Supp. 488. Courts have found commercial trucking to be inherently dangerous because it is "a matter of common knowledge that the transportation of freight upon the highways, usually by means of huge trucks and trailers, is fraught with great danger to the traveling public," so as to call for strict and detailed regulatory laws by both the states and the Federal Government in order to protect the traveling public." Id.
Applying this reasoning, courts have held that as a matter of public policy motor carriers holding I.C.C. permits should be held responsible for a leased motor vehicle whenever the motor carrier contracts with an independent contractor. Courts have found that otherwise "the public might be entirely deprived of the safeguards * * * required by the Interstate Commerce Commission, by means of certificate holders evading their responsibility by the employment of irresponsible persons as independent contractors." Id.
In L.B. Foster Co. v. Hurnblad, 418 F. 2d 727, 1969 U.S. App. LEXIS 10006, a husband and wife were injured when a combination tractor-trailer loaded with steel rails and splicing collided with their car. They filed suit for damages against appellant steel warehousing and fabricating company, among others. The jury found that appellant was negligent in selecting the transport company and in violating the Interstate Commerce Act, 49 U.S.C.S. § 322(c), for contracting with transport company at less than the authorized rates. The jury found that each act of negligence proximately caused the accident. On review, the court affirmed, finding that while appellant had no actual knowledge that transport company did not provide reasonably safe highway equipment, it should have known in the exercise of reasonable care. The court found that the shipper was not a casual shipper, and its cargo was of such weight and character that it presented an unusual highway hazard, which called for special care in the selection of a carrier. The court found that appellant did not ask what rate transport company would charge, whether it was a licensed carrier, where it maintained its base of operations, or what kind of equipment it would utilize.
In affirming the lower court, the appellate court cited the Restatement of Torts under section 411, holding,
"In light of Foster's experience in shipping similar loads, of the highway danger posed by the size of this load, and of the knowledge and actions of Foster's employee in contracting with Transport Supply, we conclude that the evidence warranted a jury finding that Foster failed to make a reasonable inquiry as to Transport Supply's competence in supplying safe highway equipment. The applicable legal principle is stated in section 411 of the RESTATEMENT and the other authorities cited in note 2, supra. Particularly appropriate is the following Comment to section 411:
if the work is such as will be highly dangerous unless properly done and is of a sort which requires peculiar competence and skill for its successful accomplishment, one who employs a contractor to do such work may well be required to go to considerable pains to investigate the reputation of the contractor and, if the work is peculiarly dangerous unless carefully done, to go further and ascertain the contractor's actual competence." Id. at 731-732.
When the broker or shipper negligently selects a bad driver or a bad trucking company or driver the broker or shipper may also be held responsible. Your lawyer must understand that motor carriers and trucking companies cannot get a DOT license without signing Form OP-1 under oath which has a Safety Certification.
Paragraph 30 of the Form OP-1 application for a DOT license requires a motor carrier to comply with Part 392 of the FMCSR. See below:
30. APPLICANTS SUBJECT TO FEDERAL MOTOR CARRIER SAFETY REGULATIONS. If you will operate vehicles of more than 10,000 pounds GVWR and are, thus, subject to pertinent portions of the USDOT's Federal Motor Carrier Safety Regulations (FMCSRs) at 49 CFR, Chapter 3, Subchapter B (Parts 350-399), you must certify as follows: Applicant has access to and is familiar with all applicable USDOT regulations relating to the safe operation of commercial vehicles and the safe transportation of hazardous materials, and will comply with these regulations. In so certifying, applicant is verifying that, at a minimum, it:
- (1) Has in place a system and an individual responsible for ensuring overall compliance with FMCSRs.
- (2) Can produce a copy of the FMCSRs and the Hazardous Materials Transportation Regulations.
- (3) Has in place a driver safety training/orientation program.
- (4) Has prepared and maintains an accident register (49 CFR 390.15).
- (5) Is familiar with DOT regulations governing driver qualifications and has in place a system for overseeing driver qualification requirements (49 CFR 391).
- (6) Has in place policies and procedures consistent with USDOT regulations governing driving and operational safety of motor vehicles, including drivers' hours of service and vehicle inspection, repair, and maintenance (49 CFR 392, 395, and 396).
- (7) Is familiar with, and will have in place on the appropriate effective date, a system for complying with USDOT regulations governing alcohol and controlled substances testing requirements (49 CFR 382 and 40).
How does the broker or shipper become liable for the negligent actions of the truck driver or motor carrier
The broker or shipper may become liable when any of the following negligent actions occurs:
- Failed to check the safety rating of the motor carrier and driver by background checks on the Safer System website.
- Failed to determine if the motor carrier provides safe drivers specially trained for hazardous types of shipments.
- Failed to determine if a motor carrier has an active dispatch operation in the company that monitors weather 24/7 and alerts the drivers to cease operations due to bad weather, high winds, snow, ice, dust, smoke or other severe conditions and has a system set up to reroute truck drivers when bad weather conditions exist.
- Hired a motor carrier that has no safety system in place that complies with the requirement that the motor carrier has an orientation and training program in place that complies with Form OP-1.
- Hired a trucking company that does not maintain an accident register.
- Hired a trucking company that does not have in place a proper system for overseeing driver qualification requirements.
- Hired a motor carrier or trucking company who does not have risk management systems in place to prevent accidents with the general public.
- Fails to conduct post-accident investigations.
- Otherwise fails to select a competent motor carrier.
- Contracts with a motor carrier and has inserted an indemnification clause in the Shipping Contracts.
- Hires a motor carrier that has lease agreements with companies that own trailers that has an indemnification agreement in the leases.
- Hires its truck drivers under independent contractor agreements that have indemnification agreements in the contract.
- Exercises any control over the trucking company, motor carrier or its truck drivers.
Hired a trucking company and requires them to follow the Broker or Shipper's schedule and make on-time delivery regardless of weather conditions or driver fatigue.
People who have been injured in trucking accidents need to inquire of their lawyer about the particular attorney's knowledge of shipping and broker liability or you may lose other avenues of recovery for your injuries that may add millions of dollars to a lawsuit over a truck driver's negligent actions causing injury. Feel free to call Bull Attorneys who are experienced commercial truck accident attorneys and car crash lawyers.
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