Sparks v. M&D Trucking
301 Neb. 977
Neb.2018Background
- On Aug. 28, 2014, driver Kenneth Johnson (driving truck/trailer bearing Turbo Turtle identification) ran a stop sign and caused a fatal collision; Johnson had recent alcohol use, hours-of-service violations, and prior driving-related criminal history.
- Johnson contracted with Turbo Turtle Logistics LLC (Turbo Turtle); Turbo Turtle had a dispatch/lease relationship with M&D Trucking, L.L.C. (M&D) under a written "Contract for Dispatch Services."
- Turbo Turtle was a licensed motor carrier; Turbo Turtle licensed/owned the equipment Johnson drove and leased that equipment to drivers; Johnson had driven for Turbo Turtle ~30 days before the crash.
- For the load at issue, Northern Ag (a broker/customer) contacted M&D; M&D communicated load info to Turbo Turtle and/or drivers; pickup paperwork listed M&D as carrier but the vehicle displayed Turbo Turtle signage and police listed Turbo Turtle as the motor carrier.
- Plaintiffs settled/dismissed claims against Turbo Turtle and Johnson but reserved claims against M&D; they sued M&D for respondeat superior (agency/employee), negligent hiring/training/supervision, and FMCSA/FMSCR-based (statutory lessee/carrier) liability.
- The district court granted summary judgment for M&D; Nebraska Supreme Court affirmed, holding Johnson was an independent contractor working for Turbo Turtle (not M&D), M&D did not retain the requisite control or nondelegable duty to be vicariously liable, and M&D acted as a broker, not the motor carrier, for the load.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson was M&D's employee (respondeat superior) | Johnson was effectively controlled/ dispatched by M&D (texts, calls, and exclusive dispatch contract) so a question of fact exists on employer status | Johnson was an independent contractor of Turbo Turtle; M&D only controlled the end result (pickup/destination) and not means/methods | Held: Johnson was an independent contractor of Turbo Turtle, not M&D; no employer-employee relationship with M&D. |
| Whether M&D retained control so as to be liable despite independent-contractor status (control exception) | M&D retained supervisory control over the load and knew/should have known hours-of-service violations, so it had ability/opportunity to prevent the harm | M&D’s involvement was limited to dispatching end-result info; it lacked substantial control over means, equipment, or driver compliance | Held: No. M&D’s oversight was not substantial nor directly related to the conduct causing the injury; control exception does not apply. |
| Whether FMCSA/FMCSR made M&D a statutory employer or motor carrier (statutory liability) | Under FMCSR definitions and the parties’ agreements, M&D had exclusive use/control and was the motor carrier/statutory employer for the load | Turbo Turtle owned/controlled the equipment, displayed its carrier number, and M&D functioned as broker; no lease or exclusive control meeting FMCSA lease/operation rules | Held: M&D was a broker for this transaction, not the motor carrier or statutory employer under FMCSA/FMCSR. |
| Negligent hiring/training/supervision claim | Even if a broker, M&D had duty to ensure safe selection/monitoring of drivers it dispatched | M&D relied on Turbo Turtle for hiring and driver records and did not serve as motor carrier, so no duty was breached | Held: Dismissed — plaintiffs did not present genuine factual dispute that M&D negligently hired/trained/supervised Johnson. |
Key Cases Cited
- Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (Neb. 2017) (standards for summary judgment and employee/independent-contractor analysis)
- Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (Neb. 1997) (ten-factor test and control as chief factor in employee vs. independent contractor analysis)
- Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (Neb. 2014) (exceptions to nonliability for independent contractors and standards for retention-of-control liability)
- Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004) (distinguishing brokers from motor carriers; solicitation/contractual obligation can indicate carrier status)