"But I didn't do it!": Expanding Theories of Vicarious Liability[dagger]

FDCC Quarterly, Summer 2008 by Franklin, Robert T

None of these were sufficient in light of the facts at issue to support a finding that the broker was a carrier. The Schramm court held that the mere fact that the broker held itself out as the "one-point of contact," it had authority as a carrier, had operated as a carrier in the past, and held insurance were insufficient to support a finding that it was a carrier in the particular case at bar.44

With respect to the mistaken identification of the broker as the carrier on the bill of lading, the court noted that the shipper prepared the bill of lading without the broker's input, and an error in identification would not transform the broker into something that it was not in the transaction at issue: a carrier.45 Finally, with respect to the issue of dispatch, the court found that "the fact that [the broker] instructed [the driver] as to the time and place of pickup and delivery does not amount to an assumption of control as the carrier's dispatcher."46

Accordingly, the inquiry into these issues may become detailed, but it seems clear that unless the broker/carrier is acting as a carrier with respect to the shipment that led to the accident, it will not be held liable pursuant to the statutes or regulations.

3. Assisting the Carrier in Violation of the MCA or FMCSR

A plaintiff may also try to assert that the broker aided or abetted, or otherwise conspired with the carrier, with the intent that the driver violate the MCA or FMCSR. Due to the criminal implications of those allegations, a plaintiff is generally required to produce substantial evidence for such claims. That evidence may include a pick-up and drop-off time that would inevitably result in a violation of the hours of service requirements or constitute notice that the broker should have inquired about a particular driver.47

III.

CLAIMS AGAINST SHIPPERS

As the foregoing discussion readily illustrates, a number of theories have been pursued against brokers for accidents caused by the motor carriers with whom they contracted. Indeed, in at least one published opinion, such a theory has been recognized as viable and creating a question for the jury.48 Accordingly, it was probably inevitable that a plaintiff would attempt to pursue such a theory against even a shipper who directly contracts with a motor carrier to haul its freight.

In Puckrein v. ATI Transport,49 the Supreme Court of New Jersey reversed summary judgment in favor of a shipper, and held that the shipper could be liable for the negligence of a motor carrier it hired to haul some of its products. This case is a classic example of the adage "hard facts make for bad law" (i.e. a sympathetic court being creative in finding a "deep pocket" to satisfy what would otherwise be an unpaid judgment).

Browning-Ferris Industries of New York ("BFI") contracted with World Carting to haul certain products, and World Carting, in turn, assigned certain loads to ATI Transport, Inc. ("ATI"). An ATI truck, hauling a load for BFI, was involved in an accident that killed two and seriously injured others. The court emphasized that the truck was unregistered and uninsured, and had "seriously defective brakes" at the time of the occurrence.50