Tractor trailer crashes are some of the most devastating.  These crashes often cause serious injury or death. Mandatory insurance limits are often not enough to cover all the harm caused by the crash.

49 U.S.C. § 13102(2) defines a broker as “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 a motor carrier for compensation.” The definition is also addressed by regulation in 49 C.F.R. § 371.2(a) as “a person who, for compensation, arranges, or offers to arrange, the transportation of property by an authorized motor carrier. Motor carriers can also arrange for transportation they are authorized to transport but are not brokers when doing so. 49 C.F.R.§ 371.2.  The actual functions served by a motor carrier and a broker can be similar, however, unlike motor carriers truck brokers are not per se vicariously liable for the acts of a driver.  Liability for a broker is very fact dependent and requires a complete investigation.

Each case must be analyzed under various legal theories to see if the facts support legal liability or not. Many recent cases support liability because brokers often do more than just broker a load. Brokers manage and exert control over the motor carrier, driver and trip. Brokers often expansively market their services using terms like logistics and supply chain management. When an accident happens brokers argue they played a limited role to limit their liability.

Brokers often have contracts in place that disclaim control or management of the motor carrier, driver and trip. The contracts also usually disclaim employment or joint venture status. Despite these agreements in reality brokers are often performing the role of a motor carrier including things like accepting legal responsibility to transport the load, setting prices even where they result in a loss, assuming responsibility for the freight, retaining the power to bounce a load, planning routes, providing routing, dispatching, selecting or approving time tables, advancing fuel costs or expenses, coordinating deliveries, controlling communication, settling and enforcing rules or penalties, and paying bonuses to drivers or motor carriers.  These facts may demonstrate the control necessary to establish liability.

Some brokers have very close relationships with independent operators, such that the broker may also provide most if not all their revenue and effectively control the independent despite contrary legal descriptions in contracts. Brokers often end up becoming a close partner in providing work, planning, billing and fronting expenses for independent and small truck operations.  These relationships are in reality agency relationships akin to employment or joint ventures.  A detailed investigation will often lead to evidence that brokers are exerting significant economic and practical control of a load carriers and drivers. Our experience suggests brokers assert control over a large portion of the loads in the United States.

Brokers may be liable for harm caused by a tractor trailer crash.   The theory under which brokers may be held liable varies depending on the facts of the particular case. Sometimes multiple theories may apply to single case. Theories of liability which may apply to hold the broker responsible for injuries include vicarious liability, public authority liability, acting in concert, civil conspiracy, and negligent retention of an independent contractor. We have succesfully recovered millions for injury victims in trucking cases, and always examine each case for all possible liability and recovery.

Vicarious liability (liability of a principal for the acts of an agent) may be found when 1) principal consent to the agent acting on the principal’s behalf, and 2) the agent must be subject to the principals control, 3) the acts producing the injury must have occurred within the scope and course of agency. Under the Restatement (Second) of Agency Section 220(2), which used the terms “master” and “servant,” to explain the agency relationship the following factors are relevant to the determination:

The Restatement of Torts (second) § 876 provides:

“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he(a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person”

Comment on Clause (a) states: a. Parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. The agreement need not be expressed in words and may be implied and understood to exist from the conduct itself. Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as for his own acts. The theory of the early common law was that there was a mutual agency of each to act for the others, which made all liable for the tortious acts of any one. Illustration 2(b) makes states in part: ” The mere common plan, design or even express agreement is not enough for liability in itself, and there must be acts of a tortious character in carrying it into execution.” An act of tortious character can be a negligent act, omission or the participation in a plan with tortious intent. An example would be a violation of the FMCSR on aiding and abetting violations.  Thus, if a driver contracted to a broker is violating the FMCSR hours of service, and there is evidence showing aiding and abetting the broker may be held liable to the parties injured in the crash with the driver.

The Restatement of Torts (second) § 428 provides:

“An individual or corporation carrying on an activity which can be lawfully carried out only under a franchise granted by a public authority and which involves unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.”

Thus, if the evidence establishes that the broker was in fact operating as a motor carrier, or effectively controlling the conduct of the motor carrier then § 428 liability might attach.

Missouri law recognizes that brokers may be joint ventures with the motor carrier. In Johnson v. Pacific Intermountain Exp. Co., 662 S.W.2d 237 (Mo 1983), a broker went beyond simply arranging for a truck to deliver a load. The broker dictated the locations for pickup and delivery and was collecting the full fee and after removing its percentage giving the remainder to the trucking company.  The broker also advanced money to the motor carrier to pay for expenses of the trip. The Supreme Court of Missouri held that the broker was instrumental in launching and directing the trucks trip and held that they were acting as joint ventures. Id. at 241. Of important note the court acknowledge that a single transaction was enough for a joint venture, and that no particular formalities were required for a joint venture to exist. Id. at 241.

The Restatement Torts 2d, §411 provides:

“[A]n employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which
will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.”

It is undeniable that transporting freight on public highways by tractor-trailer is work that will involve the risk of physical harm unless carefully done. Thus under §411 the question is whether the contractor was competent and careful.  Brokers have taken different approaches to this question, some accept that they have a duty and conduct investigations to determine the fitness of the motor carrier they select. Other brokers unfortunately take an approach that provides work to dangerous and careless operators. Brokers in this category consider competent and careful to simply mean that they are a licensed motor carrier. This is akin to assuming that every driver who has a license is competent and careful. An assumption most Americans would not share. This view has been adopted because it is cheaper than investigating and provided the largest and cheapest possible pool of motor carriers to ship the load.  These brokers are making a conscious choice to put their profits over the wellbeing of the motoring public.  Holding a license is not equal to being competent and carful. In fact, brokers known that the federal government does not and cannot monitor the thousands upon thousands of motor carriers. So small operators fly under the radar and usually are not caught until something tragic happens. In such circumstances brokers who have retained incompetent and carless contractors may be held liable for the acts of the motor carrier.

An employer may be held liable for negligent action of independent contractor when the employer failed to exercise reasonable care to hire a competent contractor. An employer has a duty to select a “skilled and competent” contractor. Sullivan v. St. Louis Station Associates, 770 S.W. 2d 352, 356 (Mo. App. E.D. 1989).

Although it may be possible to hold a broker accountable for your damages after a truck accident, doing so requires strong evidence. The car accident lawyers at Gump & Faiella can investigate and gather this evidence and pursue the maximum compensation from all potentially liable parties. You can focus on recovery why we focus on your case and getting you the financial recovery, you need to put your life back together.  Call us today at 800-264-3455 or Use Our Contact Form to schedule a free consultation.

Related Articles:

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Who Might Be Liable for Damages After a Truck Accident in Missouri?

Hours of Service Regulations and Fatigue

Bad Weather Truck Injuries

Truck Accidents Due to Overloaded Carg o

4 Common Causes of Commercial Truck Accidents

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