How to Get More From Your Trucking Cases
By Tim Tomasik, Co-Chair – How to Win Trucking Cases 2018
More and more, the decreasing value of trucking industry coverage has effectively eliminated the prospect of fair compensation from a single insurance policy. (note 1) As a result, it has become incumbent upon counsel to understand how to build a case against all culpable entities. Culpable defendants commonly assert that they were operating as freight-forwarders or “brokers” at the time of the occurrence to avoid liability. This insulation strategy is nothing new. See e.g. Johnke v. Espinal-Quiroz, 2017 WL 3620745, at *9 (N.D. Ill. Aug. 23, 2017). note 2 In many ways, the “Broker Defense” is the next step in the evolution of the interstate motor carrier’s “independent contractor” defense. Expert testimony can be critical in persuading a jury to impose vicarious liability in what may, at first blush, appear to be a murky business relationship.
The Federal Motor Carrier Safety Regulations create an irrebutable presumption that a truck driver for a motor carrier is a statutory employee for whose negligence the carrier is liable, even if the driver or his employer were described as “independent contractors” in written agreements with the carrier. See Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, 423 U.S. 28, 37 (1975). In fact, Department of Transportation Guidance states, unequivocally:
Question 17: May a motor carrier that employs owner-operators who have their own operating authority issued by the ICC or the Surface Transportation Board transfer the responsibility for compliance with the FMCSRs to the owner-operators?
Guidance: No. The term “employee,” as defined in §390.5, specifically includes an independent contractor employed by a motor carrier. The existence of operating authority has no bearing upon the issue. The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators. Guidance on Part 390. (emphasis in original.)
The regulations that govern the relationships between employers, employees, and drivers are numerous and sometimes complicated. To assist the jury’s understanding, liability experts are often called to testify regarding the regulations. Whether an expert’s testimony concerning the Federal Motor Carrier Safety Regulations is admissible is a question with different answers depending on the jurisdiction. However, the “crushing weight of authority” from courts nationwide has overwhelmingly held that motor carriers are statutorily liable as a matter of law under the FMCSRs for the negligence of their leased drivers, regardless of the nature and scope of the negligent conduct, and that an expert’s conclusions may be assistive to the trier of fact. note 3 Morris v. J.T. Materials, Inc., 78 S.W.3d 28, 51-52 (Tex. App. 2002).
A well-prepared and knowledgeable expert can be the difference between a collectible verdict against a principal-broker and an uncollectible verdict against a small trucking company with statutory minimum coverage. Savvy attorneys will familiarize themselves with the case law to ensure that they can present testimony consistent with custom and practice in the trucking industry without venturing into statutory interpretation, which may invade the province of the judge and jury.
In Sperl v. CH Robinson Worldwide, Inc., 408 Ill.App.3d 1051 (3rd Dist. 2011), the plaintiff’s expert testified that, based on his experience in the industry, the logistics company “fell outside that definition and into the definition of a motor carrier” because it heaped numerous obligations on the driver, making the owner-operator driver an agent of the logistics company for vicarious liability purposes. An appellate court reached a similar result in McHale v. W.D. Trucking, Inc., 2015 IL App (1st) 132625, affirming that a trucking industry expert was properly permitted to testify that a driver was an “employee” of the “broker” at the time of the incident as those terms are defined under § 390.5 of the Regulations.
Courts in other jurisdictions have considered and approved similar testimony. In Rabon v. Hopkins, 208 N.C. App. 351 (2010), an appellate court found that an expert could testify concerning what types of brake systems were required under the FMCSRs. The 10th Circuit has permitted expert testimony that the defendant truck driver violated FMCSRs and industry standards when he was impaired by methamphetamines. Frederick v. Swift Transp. Co., 616 F.3d 1074 (10th Cir. 2010).
Wherever you practice, one useful tool to ensure your client’s claim is fairly considered by a jury is a well-prepared and knowledgeable expert. Your understanding of the interplay between the regulations and the tortfeasor’s conduct will help safeguard your client’s rights.
1. Examining the Appropriateness of the Current Financial Responsibility and Security Requirements for Motor Carriers, Brokers, and Freight Forwarders – Report to Congress, A Report Pursuant to Section 32104 of the Moving Ahead for Progress in the 21st Century Act (P.L. 112-141)
2. “Here, Steel Warehouse Company LLC and Steel Warehouse Inc. manipulated the corporate form by conducting business as a single enterprise, while shielding Steel Warehouse Company LLC from liability related to transportation and Federal Motor Carrier Safety Regulations by operating Steel Warehouse Inc.—which is essentially Steel Warehouse Company LLC’s transportation department—as a ‘separate’ motor carrier. . . . thus if and when Steel Warehouse Inc. incurs liability in the course of delivering Steel Warehouse LLC’s products, Steel Warehouse Inc. does not have the necessary assets to cover the liability. In these circumstances, the Court concludes that permitting Defendants to manipulate the corporate form to escape liability in this manner would promote injustice.”
3. Motor Carrier Liability for Injuries Caused by Negligent “Independent Contractors,” Steven M. Friedman; see also Harvey v. F-B Truck Line Company, 115 Idaho 411 (1987).