As a Georgia trucking attorney, I sometimes see motor carriers create a shell game in which they claim after a tragic accident happens, to have been acting as a broker or logistics company, rather than as a motor carrier. Of course, when you dig into their marketing materials, they usually represented to shipping customers they were pretty much a “one stop shop” that covered everything from pickup to delivery.
49 C.F.R. § 371.7(b) provides, “A broker shall not, directly or indirectly, represent its operations to be that of a carrier.” A broker may be treated as a carrier if it does not delineate the broker role. See, e.g., KLS Air Express, Inc. v. Cheetah Transp. LLC, 2007 WL 2428294 (E.D.Cal.,2007).
A motor carrier, defined in 49 C.F.R.§ 387.5 to include a motor carrier’s agent, may be held liable for choosing an incompetent independent contractor. In Georgia, the court in Peachtree-Cain Co. v. McBee, 254 Ga. 91, (1985) recognized liability for negligent hiring of independent contractor if public policy demands imposition of such a duty. Restatement (Second) of Torts § 411 (1965), Comment a, defines a competent and careful contractor as “a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others.” In a trucking context, compliance with licensing, physical qualifications, registration, and insurance requirements are essential to lawful transport of goods on the roadways. A company whose core purpose is the transportation of property on the highways has a duty to use reasonable care in the hiring of an independent trucker including a duty to make an inquiry into that trucker’s ability to travel legally on the highways. Puckrein v. ATI Transport, Inc., 186 N.J. 563, 897 A.2d 1034 (N.J., 2006).
Schramm v. Foster, 341 F.Supp.2d 536, Fed. Carr. Cas. P 84,364 (D. Md. 2004), is a case that has driven trucking companies and their insurers to distraction. It held that a negligent hiring claim was allowed against a freight broker that failed to consider a motor carrier’s bad safety record.
Ken Shigley has served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is a national seminar speaker for the Interstate Trucking Litigation Group of the American Association for Justice. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he was recently elected Secretary of the State Bar of Georgia. He handles cases all over Georgia, from LaFayette to St. Mary’s, and from Cornelia to Moultrie.