There has been an unfortunate trend over the past few years to find freight brokers vicariously liable for the negligent conduct of truck drivers on the road. Most state and federal courts have refused to extend liability for the driver’s conduct beyond the trucking carrier, but some states are going in the other direction. Even though brokers and shippers rarely get involved in how the driver operates their truck, they can become liable if there is sufficient evidence of "control."
This trend began in 2011 with a claim against CH Robinson (Hoffman Case), where the court upheld a jury’s "finding of agency" between the driver and the broker, holding the broker vicariously liable for a $23 million award in favor of two decedents and another injured plaintiff. The broker was found to be the driver’s "principal" despite a contract that made clear the trucking carrier and its drivers were independent contractors. This past August, the same appellate district from the Hoffman case handed down McHale v. W.D. Trucking, Inc., 2015 IL App (1st) 132625. The plaintiff’s decedent in McHale was struck by a tractor-trailer as she stood on the shoulder by her disabled vehicle. The jury returned an award of $8 million to the decedent’s husband and two children, and found the driver to be the broker’s agent. The court found that there was a “litany of … requirements set by [the broker] with which [the trucking carrier] needed to comply,” and that this provided a sufficient basis to support the jury’s decision.
The explanation for this trend is quite simple. Trucking carriers often carry an inadequate amount of liability insurance to cover the loss from an accident. This places the brokers, shippers, and even buyers next in line to satisfy the shortfall. These companies typically have contracts, confirmation sheets, bills of lading, invoices and a history of doing business together that can be used against them to establish control over the driver, even though they are not directly involved with how the driver operates the truck.
The cases outlined above show that the brokers have not been faring well before juries. It is important to remember that a trial on vicarious liability focuses not on whether the broker did anything to cause the accident on the road, but whether it exercised enough control to make the driver its agent.
This is why when you choose a broker to work with, you must verify that they have vicarious auto liability in place to protect themselves, and all parties involved in the unfortunate event of a claim.
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