But I didn't do it!: Expanding Theories of Vicarious Liability

brokers should investigate the safety records of the carrier, including verification of in an accident. having a separate corporate entity own the trucks (usually the operator's the permission of the insured. the criminal implications of those allegations, a plaintiff is generally required to produce c. claims under motor carrier act and federal motor carrier safety regulations in the freight hauling process who might constitute additional "deep pockets" from which (4) under a "a person, other than a motor carrier or an employee or agent of a motor carrier, that as the traditional approach of directly soliciting freight from shippers for all, or at least most, negligent in hiring or retaining the driver and for entrusting a commercial motor vehicle to accordingly, in addition to the employment relationship, the broker must own or lease or the driver himself, depending upon the relationship between the carrier and the driver. one who supplies directly or through a third person a chattel for the use of another of such a common law duty would be incompatible with the regulations promulgated see west v. east tenn. pioneer oil co., 172 s.w.3d 545, 555 n.7 (tenn. 2005) (and cases cited there- could just as easily be held liable despite having committed no tortuous act whatsoever. required parts and accessories,31 criteria for applications for employment, investigations/inquiries that must be performed, tions.16 ii. required road tests or the equivalent, and required physical qualifications and examina- 14 the inquiry, of course, must extend beyond the basic facts. what is relevant is whether 58 cident, even if that party played no role in the operation of the vehicle. one such scenario the plaintiffs sued, among others, ati, world carting, the driver, and bfi. bfi was regulations, so long as they are consistent with the federal regulatory scheme.18 of action, finding that the language refers to commercial, not personal, injuries.27 id. � 390.5. wl 2428156 (d. me. sept. 30, 2005). ing, the court noted that the shipper prepared the bill of lading without the broker's input, that there was a genuine factual dispute as to whether bfi knew, or should have known, of to tendering a given load. moreover, even if the motor carrier had a satisfactory rating at the manner and means of doing the work subject to the contract;5 448 in addition to basic qualifications, the fmscr prescribe guidelines with respect to is also a motor carrier, a plaintiff may argue that the broker is, accordingly, liable for the claims against shippers e.g., smith v. spring hill integrated logistics mgmt., inc., 2005 wl 2469689 (n.d. ohio oct. 6, new york courts. in two of those cases the law was recognized as validly preempting the activity of the independent contractor, knows of and sanctions the illegal conduct or activity this was sufficient for the court to in the transaction at issue: a carrier.45 of a motor carrier it hired to haul some of its products. this case is a classic example of the 49 c.f.r. � 387.9 (2007). validly preempt applicable state law under which the vehicle owner could otherwise have person (or an affiliate of the owner) shall not be liable under the law of any state carrier is insured, those assets may be lost. one can, however, ordinarily create a separate to recover. for example, there have been an increasing number of claims against freight 37 dismissed by the trial judge on a motion for summary judgment. the plaintiffs obtained an affiliate of the owner).56 it is clear that plaintiffs' attorneys will forever be attempting to come up with creative id. �� 392.1�392.71. warfare" by referring to "corporate" tortfeasors, even though an individual owner of a vehicle lease, if-- expanding theories of vicarious liability 43 insurance available to satisfy a potential or actual judgment. the reform provided by the graves amendment does not protect companies that have been expanding theories of vicarious liability 442 accordingly, the inquiry into these issues may become detailed, but it seems clear that at least thirty-two states use this definition of negligent entrustment.24 would otherwise go uncompensated. and third party logistic companies who attempt to play a creative role in matching motor bill of lading; (4) [the broker] takes responsibility for freight claims and maintains id. at 552. 2005). id. �� 393.1�393.209. tendered a further load to the motor carrier it thereby arguably "violated its own standards" 53 in allowing plaintiffs to maintain claims against other "deep pockets." this was demonstrated every potential liability theory or factual scenario, careful planning and the implementation 62 theories of liability and ways to involve any "deep pocket" in a given claim. moreover, in). the general rule under common law, as noted above, is that one cannot be held vicariously (2) an employer being held against motor carriera. such a right may be provided for in a contract between the parties, or of goods potentially liable for accidents caused by the motor carriers they retain, that plain- 12 that general rule. those exceptions include: (1) when the principal retains control of the (2) to maintain internal records of the persons with whom it contracts to assure that party for the acts of an independent contractor with whom that party contracts are "negligent expanding theories of vicarious liability plaintiffs point to several factors regarding [the broker's] general method of opera- rare instance loans or leases that equipment to another motor carrier, the new law would not some third party logistics companies and brokers are also motor carriers under the 8 which it contracted. schramm and the cases cited therein, provide an extensive discussion of mum qualifications for the contractor, which it allegedly had not done. the court further entity to own equipment and lease it to the motor carrier. if done properly, that structure vehicles may be held vicariously liable for damages and injuries resulting from the use of federal interest in protecting drivers and passengers on the nation's highways.21 36 fdcc quarterly/summer 2008 transportation litigation committee and the dri trucking submitted by the author on behalf of the fdcc transportation section. the summary judgment in favor of bfi was affirmed by an intermediate 19 the schramm court also noted that a marginal safety rating on the safestat system "implies such term includes a driver of a commercial motor vehicle (including an independent contractor while in 13 acted as a carrier: (1) [the broker] marketed itself as "one-point of contact" which expanding theories of vicarious liability hiring" and "negligent entrustment." these theories have long been recognized in the truck motor carrier to haul its freight. motor carrier a, and its insurer, will be held primarily responsible. in the event of a see shaffer v. acme limestone co., inc., 524 s.e.2d 688, 701 (w.va. 1999). 49 u.s.c. � 30106 (supp. 2005). browning-ferris industries of new york ("bfi") contracted with world carting to even by common law. the right to indemnification, however, does not necessarily equal the ability to recover. if motor carrier a is essentially "judgment proof " for the excess amount, insurance coverage beyond that which is required of brokers; (5) [the broker] dis- of transportation between a shipper and a carrier appears to be coming to an end. schramm 40 or whether it was merely the broker.42 liability from being imputed simply by virtue of ownership of a vehicle that was involved for example, broker-motor carrier contracts often require that the motor carrier have a 49 c.f.r. � 371.2(a) (2007). 447 because the motor carrier was not "engaged in the trade or business of renting or leasing in gra- them.23 of materials on the highways" has a higher duty with regard to the motor carrier it engages the gravesamendment's effect goes beyond the classic car rental scenario, and, in fact, uninsured, and had "seriously defective brakes" at the time of the occurrence.50 time will tell whether the puckrein case is merely an aberration, or a precedent that 49 c.f.r. � 390.5 ("employee means any individual, other than an employer, who is employed by an see schramm, 341 f. supp. 2d at 549; chubb group of ins. cos. v. h.a. transp. sys., inc., 243 f. supp. loaded improperly. most valuable asset) and lease them to the operators may effectively shield the vehicles from id. at 550. inexperience, or otherwise, to use it in a manner involving unreasonable risk of id. at 536, 548. judges are all too often their willing accomplices in that regard, frequently seeming to a peripheral party when a judgment in favor of a seriously injured motorist or pedestrian subject to the laws of the state of new york, unless otherwise directed by the new particular case at bar.44 find that the broker had fulfilled its duty of inquiry.20 26 56 the viability of those claims, however, remains generally questionable. traditionally, will be followed by other courts. it is clear, however, just as recent cases holding brokers of renting or leasing motor vehicles; and gently entrusted it to the driver. negligent entrustment is described as follows: judgment in excess of a's policy limits, however, motor carrier b and its insurer, may be with some planning, motor carriers can utilize the new law to their advantage. the mo- e.g., davis v. ilama, 41 conn. l. rptr. 178, 2006 wl 1148702 (conn. 2006); piche v. nugent, 2005 state law, beyond that which is permitted by the constitution's commerce clause. in making v. 2. status of broker as carrier brokers. cannot wholly exempt a corporate class of tortfeasor from liability to otherwise inc. ("ati"). an ati truck, hauling a load for bfi, was involved in an accident that killed against brokers for accidents caused by the motor carriers with whom they contracted. accident, it will not be held liable pursuant to the statutes or regulations. the chattel (i.e. the truck) will generally be supplied by either the employer 3. assisting the carrier in violation of the mca or fmcsr as noted above, claims against freight brokers have become increasingly common. and an error in identification would not transform the broker into something that it was not minimum legal standards for authorized carriers and utilize drivers and equipment that motor carriers, however, are essentially "judgment proof" for amounts substantially above the mca and fmcsr. motor carriers are required to "provide safe and adequate service, schramm v. foster, 341 f. supp. 2d 536, 551-52 (d. md. 2004) (citations omitted). physical harm to himself and others whom the supplier should expect to share in id. at 1037 vi. is when a motor carrier permits another carrier to utilize one of its trailers. for example, in the recent case of finally, with respect to the issue of dispatch, the court e.g., pusey v. bator, 762 n.e.2d 968 (ohio 2002). id. �� 395.1�395.15. traditionally, one is not responsible for the negligent acts of an independent contractor by the independent operator of such vehicle. the court also exhibited classic liberal "class subsidiary duties (1) to check the safety statistics and evaluations of the carriers with 341 f. supp. 2d 536 (d. md. 2004). party has thereby "violated its own standard which it felt was important for the purposes of of such a claim against a shipper who directly obtains a motor carrier.4 affiliate of the owner), for harm to persons or property that results or arises out of in a number of litigated claims. in several instances, the new federal law has been held to substantial evidence for such claims. that evidence may include a pick-up and drop-off time the time of trial.51 in the face of increasing recognition of theories of vicarious liability against brokers and 2 haul freight for the broker's customers. the agreements between the broker and the motor activity in question constitutes a nuisance per se,7 awards by juries in civil cases have steadily risen over time. cases involving those gistics mgmt., inc., 2005 wl 2469689 (n.d. ohio oct. 6, 2005). deed, absent the employment relationship, the broker has no duty to ensure that the driver 21 courts have found that brokers are required to use reasonable care in selecting the carriers to 57 introduction the applicable contract should require the motor carrier to provide evidence of certain industry defense association (tida) and the transportation patched the driver; and (6) [the broker] has performed carrier services in previous indeed, in at least one published opinion, such a theory has been recognized as viable and or shipper should also strive to have as little as possible to do with the actual movement schramm v. foster,12 damage to the freight being hauled. traditionally, it was understood that only the motor by the fmcsr. to the contrary, imposing a common law duty upon third party one's liability, of course, is not limited to the amount of his or her insurance. many merous regulations in the hiring and retention of drivers. the federal motor safety carrier liable for the acts of his or her independent contractors. as was also noted above, however, with respect to the mistaken identification of the broker as the carrier on the bill of lad- and held that the broker could in fact be liable for injuries caused by the motor carrier with the broker is unlikely, the fmcsr specifically defines an employer as "any person engaged as average verdicts have continued to rise, the price of insurance, particularly excess for primarily by car rental companies who claimed that they were all too often required to fdcc quarterly/summer 2008 demonstrates that a broker may face liability for failing to, in the court's view, adequately motor vehicles."58 in terms of the motor carrier with whom it contracted, which could result in liability. time the contract was entered into, its rating could later be reduced to "conditional" pursuant may be inflammatory factors in such cases (e.g. a fatigued driver operating in excess of the id. at 551. 443 moreover, each state may impose additional 743 (sup. ct. 2006); see also king v. car rentals, inc., 813 n.y.s.2d 448 (app. div. 2006). standards, including qualification as an authorized carrier under applicable law and proof 59 such efforts will require the investment of time and other resources, these efforts may serve unless the broker/carrier is acting as a carrier with respect to the shipment that led to the iii. a breach of its duty" to the shipper.14 41 amendment was unconstitutional. for example, an applicable contract should make the independent contractor relationship ment relationship is required.although the employment relationship between the driver and against brokers and even shippers. 34 employer and who in the course of his or her employment directly affects commercial motor vehicle safety. that at some point the united states supreme court may need to address the issue of the superior, such motor carriers are generally liable for the negligent acts of their employees, claims against freight brokers of the freight, specifying that all aspects of such freight movement are within the motor is "engaged in" the business of leasing equipment, and the new law applies only to such 61 49 u.s.c. � 13102(14) (2000 & supp. 2005). the puckrein court held that a principal may be liable for the acts of an independent even killed, directly as a result of a dangerous instrumentality owned only by that to a safety fitness audit. if the broker or shipper was unaware of that change in status and duties imposed on the employer by statute, contract, franchise or charter;6 motor carriers, of course, are subject to nu- 47 rubbo v. hughes provision co., 34 n.e.2d 202 (ohio 1941). accordingly, it was probably inevitable that a plaintiff 49 c.f.r. �� 391.1�391.73 (2007). courts have allowed claims against the motor carrier premised upon the theory that the car- b. negligent entrustment spired with the carrier, with the intent that the driver violate the mca or fmcsr. due to than "a casual shipper of goods."54 programs, over six years through fiscal year 2009, including $52.6 billion for federal transit majestic realty assocs., 153 a.2d 321. as the foregoing discussion readily illustrates, a number of theories have been pursued programs. the subject amendment was introduced by representative sam graves (rmo.), in a business affecting interstate commerce who owns or leases a commercial motor vehicle shippers will require additional time and increase costs. once again, however, those costs 45 majestic realty assocs., inc. v. toti contracting co., 153 a.2d 321 (n.j. 1959). claims premised solely upon vehicle ownership litigation context as providing the basis for independent claims against a motor carrier, to the mca and the fmcsr primarily center around language providing: "[a] carrier or negligent in their own right. for example, if the owner of equipment negligently entrusts it see, e.g., st. paul fire & marine ins. co. v. frankart, 370 n.e.2d 1058 (ill. 1977). expanding theories of vicarious liability 22 of "best practices" can help fleet operators and their insurers minimize that exposure. while if, however, a motor carrier ordinarily operates the equipment it owns, but in a see id. equipment and providing the driver. such a situation is not to be confused with an equip- 48 444 judgment. many fleet operators, particularly smaller ones, would do well to take advantage of there are also numerous other ways in which a plaintiff may attempt to argue that a tailor their contracts and procedures so as to minimize potential exposure under the theories. appellate court, but the supreme court of new jersey reversed that ruling.52 tor carrier's equipment is usually its most valuable and liquid asset. if there is a catastrophic restatement (second) of torts � 390 (1965). fdcc quarterly/summer 2008 "[m]otor carriers . . . are not brokers within the meaning of this section when they arrange haul certain products, and world carting, in turn, assigned certain loads to ati transport, tion and specific conduct in this transaction to support their assertion that [the broker] 27 adage "hard facts make for bad law" (i.e. a sympathetic court being creative in finding a with rising insurance costs and tight operating ratios for motor carriers and private fleet i. 63 "deep pocket" to satisfy what would otherwise be an unpaid judgment). the doctrine of agency by estoppel;9 pre-employment drug and alcohol screening.17 in the foregoing example, motor carrier b may have some claim for indemnification tiffs' attorneys, and the courts themselves, will often be creative in finding liability against 49 u.s.c. � 14101(a) (2000). corporate class of tortfeasor who is doing business in the state of new york and perhaps the most popular theories utilized by those seeking to impute liability upon a or be endangered by its use, is subject to liability for physical harm resulting to policies and procedures with regard to the selection of the motor carriers with whom they should effectively shield the equipment from any such exposure, because the new entity brokers have defeated such claims by means of summary judgment.11 e.g., albain v. flower hosp., 553 n.e.2d 1038 (ohio 1990). 435 re-examine its policies and procedures with respect to the hiring of any motor carrier and schramm, 341 f. supp. 2d at 548. authority to operate as a carrier; (3) [the broker] was listed as the carrier on the contractor "where the principal engages an incompetent contractor."53 rier "knew or should have known" that a driver was unsafe, and thus the motor carrier was the motor carrier to meet certain standards such a party may be held responsible when the 20 42 of their work. there has, however, also been a steady growth in the use of intermediaries the court further held the incompetence of its hauling contractor. it ruled that bfi had a duty to verify the mini- 64 46 ham v. dunkley,61 specifically held that a company "whose core purpose is the collection and transportation 441 robert t. franklin is general counsel to maryland motor 827 n.y.s.2d 513 (sup. ct. 2006). costs in renting vehicles, as entities that own them must purchase insurance which would not surprisingly, the gravesamendment and its application have already been challenged operators, many have limited excess insurance coverage or none at all. that trend coupled actions of the driver. 54 see owner-operator indep. driver's ass'n, inc. v. new prime, inc., 192 f.3d 778 (8th cir. 1999); sch- in terms of those requirements as they are a "two edged sword." to the extent one requires 6 increased fees, those using the vehicles must charge more for the transportation of goods. to save many times the costs that could be incurred if those efforts are not undertaken. however, a federal court denied summary judgment to a freight broker 445 (3) when the 449 id. �� 396.1�396.25. id. at 549. more recently, at least one published opinion has recognized the possibility innocent men, women and children, who seek recompense in the courts of the state with ever increasing jury verdicts and settlements means there is frequently not enough fdcc quarterly/summer 2008 brokers have regularly prevailed in them as a matter of law. even in more recent instances, requisite "arm's length" with the motor carrier so as to maintain that relationship. the broker and the inspec- none of these were sufficient in light of the facts at issue to support a finding that the bro- expanding theories of vicarious liability tion of its vehicles in the course of transporting freight. under the doctrine of respondeat similarly, as illustrated by puckrein, even shippers may be faced with liability for acts includes independent contractors.41 it has interesting implications for commercial transportation involving leased equipment. it cgu int'l ins., 2004 wl 1047982 at *3. up and delivery does not amount to an assumption of control as the carrier's dispatcher."46 claim was against the operator of an auto. juries often view motor carriers, and their insur- expected behavior of an ordinarily prudent person in the same circumstances to constitute in graham, an owner of a vehicle involved in an accident filed a motion to dismiss the an "insured vehicle" includes an insured trailer and a vehicle being utilized by another with fdcc quarterly/summer 2008 ker was a carrier. the schramm court held that the mere fact that the broker held itself out transportation licensing and insurance status.15 see generally id. broker providing transportation or service subject to jurisdiction under chapter 135 is liable in- potential excess exposure if the proper procedure is followed. that is, the broker's "actions must constitute a departure from the in order to recover under such a theory, one must prove that the broker supplied the driver 60 logistics companies to use reasonable care in selecting carriers furthers the critical id. one may be held liable solely by virtue of ownership of a vehicle involved in an ac- otherwise not be required, thereby resulting in higher leasing fees. in order to cover the safety." motor carrier, rather than trying to impute liability from the driver to the broker. generally, 15 accordingly, this claim is more difficult to prove against the broker. which transport property or passengers in interstate commerce."34 new york state law that provides for vicarious liability against vehicle owners.60 truck association. he is a past-chair of the aba commercial a. negligent hiring be held accountable for such independent acts of negligence. be applicable to the owner in the event the equipment was involved in an accident. that is law's constitutionality. dered freight.3 437 897 a.2d 1034 (n.j. 2006). whom it contracts available on the safestat database maintained by fmsca, and motor carrier in fact does not meet them. there a plaintiff may argue that the contracting infante v. u-haul co. of florida, 815 n.y.s.2d 921 (sup. ct. 2006); murphy v. pontillo, 820 n.y.s.2d "but i didn't do it!": certain exceptions to that general rule have been recognized. plaintiffs have pursued claims the era of a brokers' blanket exemption from liability for their role in the arrangement see supra parts ii & iii. puckrein v. ati transp., inc., 897 a.2d 1034 (n.j. 2006). expanding theories of vicarious liability to satisfy a judgment. found that "the fact that [the broker] instructed [the driver] as to the time and place of pick- id. would attempt to pursue such a theory against even a shipper who directly contracts with a in which brokers may attempt to fulfill their duty of reasonable care in selecting the carriers substantial verdicts against the other defendants, but they were all "judgment proof " by between the parties explicit, and the brokers and shippers should endeavor to maintain the contract. at the very least, shippers should strive to confirm that the motor carriers meet "satisfactory" safety fitness rating. the broker may, however, fail to verify that rating prior mca and fmcsr. the mere fact that a broker is also considered a carrier, however, is not the supreme court of new jersey reversed summary a duty of further inquiry."22 been an emergence of a new era of broker liability. therefore, every broker should carefully mitted no act of negligence. such unlimited vicarious liability results in increased consumer 9 see schramm v. foster, 341 f. supp. 2d 536, 548 (d. md. 2004). it was originally lobbied a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, with whom he or she deals. courts have, however, recognized a number of exceptions to with respect to the investigation into the background of potential drivers. brokers should 49 3 accordingly, an inquiry into a carrier's licensing and safety his- is complying with, for example, the hours of service requirements.37 may be owed directly by the motor carrier itself. 4 shippers for the motor carriers with whom they contract, those brokers and shippers should 33 id. carriers with and (5) when the party causes the unlawful conduct or 49 c.f.r. �� 391.01�391.49 (2007). as a result, fleet operators and their insurers need to be ever mindful of the various types vicariously liable for the negligence of an independent contractor performing non-delegable notice that the broker should have inquired about a particular driver.47 carrier, and between the broker and the shipper, often focus primarily on responsibility for by the foregoing discussion of potential liability to brokers and shippers of freight.64 who have suffered personal injuries. most courts that have addressed whether this is the 11 18 congress attempted to address this issue in an amendment to the 2005 safe,accountable, 29 recent changes in the law, particularly the gravesamendment,63 of vicarious liability theories so they can plan accordingly. while one can never anticipate 1. failure to provide "safe and adequate service, equipment, and facilities" to apply the new federal law holding instead that it was an unconstitutional intrusion into the vehicles they own, even though the owner was not using the vehicle at the time and com- 50 whom they tender loads.13 in connection with that business, or assigns employees to operate it."35 31 that ruling, the judge showed precisely the type of "bleeding heart" sympathetic approach however, a different division of the new york court held that the graves 450 rules and regulations regarding driving commercial the use, operation, or possession of the vehicle during the period of the rental or id. � 382.301. in violation of this part."26 52 carriers with available freight. that industry has become increasingly competitive. many motor carriers continue to utilize mercial motor vehicle transportation for compensation."38 446 ers, as "deep pockets" with adequate resources to pay a significant award. moreover, there harm.10 ramm, 341 f. supp. 2d at 547; stewart v. mitchell transp., 241 f. supp. 2d 1216, 1221 (d. kan. 2002); pay large claims when their uninsured, or "underinsured," customer could not pay. 438 439 contracts and has an affiliate that holds motor carrier authority.43 brokered loads. although there will certainly be elevated costs in terms of dollars and time the distinction becomes relevant, because the fmcsr's definition of "employee" typically in the minimum amount of $750,000 or $1,000,000 per occurrence.2 49 u.s.c. � 13102(2) (2000). brokers enter into agreements with motor carriers pursuant to which the carriers will id. � 390.3(a). a plaintiff may also try to assert that the broker aided or abetted, or otherwise con- of new york when they become sick, seriously injured, permanently maimed or to finding any "deep pocket" to pick that it could, stating: comply with such standards. moreover, as in the case of brokers, such action on the part of or political subdivision thereof, by reason of being the owner of the vehicle (or an accordingly, an employ- case. for example, in schramm the court stated: expanding theories of vicarious liability as the "one-point of contact," it had authority as a carrier, had operated as a carrier in the such a scenario may put the fleet operator's assets at risk if and when there is an excess carrier's control and discretion. 17 24 often, the lack of adequate insurance coverage also often prompts courts to be creative to one he or she knew or should have known was unsafe to use it, then the owner may still which provided $286.4 billion in guaranteed funding for federal surface transportation whom the supplier knows or has reason to know to be likely because of his youth, been held liable.59 see usair, inc. v. united states dept. of the navy, 14 f.3d 1410, 1412 (9th cir. 1994); cgu int'l ins., flexible, and efficient transportation equity act�a legacy for users ("safetea-lu"), the driver. these theories have also been utilized, more recently, in the context of claims commerce are required to carry a substantial amount of insurance under federal regulations, 28 2d 1064, 1070 (c.d. cal. 2002). see id. � 30106(a)(1). time will tell whether the graham case will be followed in other jurisdictions. it is likely the broker/carrier held itself out as a motor carrier with respect to the particular shipment, 49 u.s.c. � 14704(a)(2) (2000). the graves amendment provides, in pertinent part: id. at 551. the statute has been addressed in reported opinions from three different and accordingly is generally known as "the gravesamendment."55 two and seriously injured others. the court emphasized that the truck was unregistered and broker violated the motor carrieract (mca) or the fmcsr. the statutory claims pursuant lawyers association (tla). to the negligence of a's driver. there is no allegation that b's trailer malfunctioned, or was and which they have accepted and legally bound themselves to transport."40 brokers for injuries sustained in an accident with the motor carrier to whom the broker ten- see cgu int'l ins., 2004 wl 1047982 at *3. the fmcsr specifically distinguishes the two, providing that plaintiffs have argued that this provision creates a private right of action for people 440 dispositive with respect to liability.a"motor carrier" is defined as "a person providing com- (a) in general--an owner of a motor vehicle that rents or leases the vehicle to a hours of service requirements,32 the course of operating a commercial motor vehicle), a mechanic, and a freight handler."). vehicles,30 safestat ratings. these obligations are not onerous, and i do not find that imposition under the various exceptions in the specific context of claims against brokers. another theory of liability a plaintiff may try to pursue against a broker is negligent the commercial motor vehicle involved in the accident. absent these requirements, the one theory is that a broker failed to inquire about the motor carrier's compliance with advertisement, or otherwise as selling, providing, or arranging for, transportation by motor such costs. make rulings premised upon sympathy to plaintiffs rather than an application of the law. course of operating the vehicles moving the freight.1 a "broker," on the other hand, is see, e.g., schramm v. foster, 341 f. supp. 2d 536 (d. md. 2004); smith v. spring hill integrated lo- which effectively precludes 7 30 the vicarious liability theories noted above, in the specific context of claims against freight unit pulls a trailer owned by motor carrier b. the unit is then involved in an accident, due ment lease, entered into with an owner-operator, pursuant to 49 c.f.r. � 376.12. motor carrier b's insurer may be liable for the excess damages. larger motor carriers, of while the court's decision is strictly limited to the facts of this case, this court id. at 525. robert t. franklin id. at 549�50. verdict or some other judgment or fine against the motor carrier, beyond that for which the maximum hours allowed under federal law), which results in even higher verdicts. 32 is important to note that the law is applicable to scenarios where the lessee is utilizing the (1) the owner (or an affiliate of the owner) is engaged in the trade or business renteria v. k & r transp., inc., 1999 wl 33268638 (c.d. cal. feb. 23, 1999). above and beyond vicarious liability, for the negligent acts of its employee. for example, 25 law committee, and a member of many other transportation- in addition, this liability appears patently unfair and flies in the face of the general principle associated with such investigations, the consequences of failing to conduct a sufficient in- conclusion equipment, and facilities."28 tory, insurance history, and a review of internal broker records on its carriers, are all ways 38 or offer to arrange the transportation of shipments which they are authorized to transport york state legislature.62 id. at 1043. with whom they work. creating a question for the jury.48 1 with a chattel.25 should be offset by the potential liability that the efforts help avoid. 23 55 entrustment. the theory is that the broker borrowed the vehicle from the carrier and negli- fdcc quarterly/summer 2008 they are not manipulating their business practices in order to avoid unsatisfactory 44 that one who merely owns a vehicle is similarly "innocent" in terms of any accident caused 5 since deregulation of the trucking industry, competition in the "for hire" segment of 10 examine these policies whether the motor carrier has previously carried one or one thousand iv. broker cannot be held liable for any breach of the statute or regulations by the driver.36 fdcc quarterly/summer 2008 id. � 390.9. judgment in favor of a shipper, and held that the shipper could be liable for the negligence ance reflects on its safety history and driving record."19 case, however, have found the language to be "enigmatic" and have denied a private right tion, repair and maintenance of equipment.33 the schramm court, however, held that: complaint against it, alleging that the complaint failed to state a valid cause of action due to one problem for plaintiffs in pursuing a negligent entrustment claim is that, generally, moreover, under the laws of fourteen states and the district of columbia, owners of a negligent hiring claim relates directly to the broker's decision to contract with the 16 id. at 1041. contractual language/best practices vestigation, given the concomitant potential liability, may prove to be far greater than any fdcc quarterly/summer 2008 39 plc v. keystone lines corp., 2004 wl 1047982, *3 (n.d. cal. may 5, 2004); schramm, 341 f. supp. 2d past, and held insurance were insufficient to support a finding that it was a carrier in the this requires an inquiry into the specific facts of each id. at 1046. the protection afforded by the gravesamendment. the judge in graham, however, refused by the contractor, or such unlawful conduct or activity is a proximate cause of an injury or in puckrein v. ati transport,49 that one is only to be held responsible for his or her own tortious acts. related professional organizations, including the trucking of motor carriers they retain. accordingly, shippers should also carefully re-examine their held liable for the excess amount if the applicable commercial auto policy's definition of course, often have sizable "self-insurance retentions." in such instances, the excess amount the fmcsr is "applicable to all employers, employees, and commercial motor vehicles, (2) there is no negligence or criminal wrongdoing on the part of the owner (or insurance, has similarly continued to increase over time. motor carriers engaged in interstate of insurance in the form and limits required by the contract. one must be careful, however, regulations (fmscr) prescribe what this entails, including: the qualifications of drivers, inquire into the safety record of the carrier and the driver. in light of schramm, there has carrier for compensation."39 the proceeds from their applicable insurance policies.accordingly, plaintiffs'attorneys have would handle all of its customers' shipping needs; (2) [the broker] had fmcsa 51 injured in an accident with a commercial motor vehicle are no exception. indeed, verdicts in those cases are frequently higher than the same injuries would have produced if the plaintiff's this duty to use reasonable care in the selection of carriers includes, at least, the one court has specifically noted that a "carrier's status regarding licensing and insur- become increasingly creative in attempting to pursue theories against other parties involved and includes driver qualifications,29 entities.57 that excess coverage, however, many motor carriers choose only the minimum amounts carrier would have liability for injuries to the public caused by the motor carrier's opera- expanding theories of vicarious liability negligently maintained in any way, nor any allegation that the freight in b's trailer was how a carrier does so is set forth with specificity in the fmcsr, required. while those amounts are substantial, they are often far below the amount needed or inherently dangerous work;8 436 see, e.g., schramm, 341 f. supp. 2d at 547. and certain agents (e.g. owners and operators under dispatch), for their negligent acts in the for damages sustained by a person as a result of an act or omission of that carrier or broker in playing the "injured children" card, however, the court conveniently ignored the fact see 49 u.s.c. � 30106 (supp. 2005). motor carrieraprovides the power unit, operating authority, and driver. however,a's power if independent contractors are included, and a broker that would inevitably result in a violation of the hours of service requirements or constitute greater resources purchase excess insurance above those limits. given the rising costs of 35