Ascertaining the identity of potentially responsible defendants in a commercial trucking accident case can be challenging. Particularly in cases where the truck involved in the accident might be underinsured in light of the injuries and damages that occurred to Plaintiffs, identifying all responsible defendants is of the utmost importance.
In the trucking industry, independent contractors often assist both licensed haulers and customers in delivering loads to their destination. These relationships may be regular, and recur daily; or they may be sporadic and occasional. Whether others involved in the hauling transaction (besides the negligent driver and his employer) may be viable defendants in a Plaintiff’s personal injury action generally depends on the licenses held by, and the particular business relationship between, the various entities.
Assume, first, a scenario where the negligent driver, or his employer (a “sub-hauler”), entered into an agreement with another carrier (the “hauler”) to transport the hauler’s customer’s goods. A requisite “first step” to the legal inquiry of potential liability is to ascertain whether the hauler was duly permitted by the Federal Motor Carrier Safety Administration. See, 49 C.F.R. § 390.3. If so, the sub-hauler and its driver may be deemed the hauler’s employee as a matter of law. Federal law governing the hauler defines “employee” inclusively: “Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle)….” 49 C.F.R. § 390.5, emphasis added.
If, however, the vehicle involved in the accident was not federally permitted, but was permitted in intrastate commerce, the more arcane provisions of the California “Motor Carriers of Property Permit Act” (Veh. Code §§ 3400 et seq., hereafter, the Act), along with the law of agency, will likely determine legal liability.
The consequences of the Act’s application are best understood by considering three hypothetical scenarios: (1) the negligent driver was hauling a load pursuant to a contractual agreement with a “for-hire motor carrier of property,” as defined by Veh. Code, § 34601(b); (2) the negligent driver was hauling a load pursuant to a contractual agreement with a “private carrier,” as defined by Veh. Code, § 34601(d); and (3) the negligent driver was hauling a load pursuant to a contractual agreement with a non-transportation business entity (e.g., a manufacturer of furniture, coffee, or industrial goods).
(1) A “for-hire motor carrier of property is vicariously liable for the acts of an independent contractor:
Veh. Code, § 34601(b) defines a “for-hire motor carrier of property” as a carrier who “transports property for compensation.” Identification of, and insurance information concerning, such entities is a matter of public record which can be found at the DMV website.
In this hypothetical, assume that, due to other pressing business, XYZ Company, a permitted “for-hire motor carrier” under the Act, retained ABC Haulers (and thereby their assigned driver) as a subhauler, in order to haul XYZ’s customer’s goods. Serna v. Pettey Leach Trucking, Inc. (2003) 110 Cal.App.4th 1475, 1486 is among recent cases to state that XYZ is vicariously liable for the negligent acts of ABC in that instance: “Hence, the rule is that a carrier who undertakes an activity (1) which can be lawfully carried on only under a public franchise or authority and (2) which involves possible danger to the public is liable to a third person for harm caused by the negligence of the carrier’s independent contractor. [Citations omitted.] Were the rule otherwise, a carrier could escape liability for the negligence of its independent contractors, thus reducing the incentive for careful supervision and depriving those who are injured of the financial responsibility of those to whom the privilege was granted. For these reasons, the carrier’s duties are nondelegable, and it is only when the carrier is “not regulated” at all that the rule is otherwise.”
(2) Absent an agency relationship, a “private carrier,” as defined by Veh. Code, § 34601(d), is NOT vicariously liable for the acts of its subhauler:
Next, assume that XYZ was retained by FGH Chemical to haul FGH’s own manufactured goods to market. Assume also that FGH is permitted as a “private carrier” under the Act. In that case, FGH is not liable for the acts of XYZ’s employee. That was the holding in Hill Brothers Chemical Company v. Superior Court (2004) 123 Cal.App.4th 1001. There, Hill Brothers was permitted under the Act as a private carrier, as defined by Veh. Code, § 34601(d), that is it was: “…a motor carrier of property, who transports only his or her own property, including, but not limited to, the delivery of goods sold by that carrier.” The court held that Hill Brothers was not vicariously liable for the negligent acts of the driver of the carrier that it had hired to deliver its goods. Finding that Hill was simply a user of the transportation services of a for-hire motor carrier, the court held there was no basis for finding liability under a non-delegable duty theory.
(3) Absent an agency relationship, a contracting entity which is not licensed at all is not vicariously liable for the acts of an independent contractor.
Finally, assume that XYZ was hauling goods for TOP Coffee, an entity possessing no DMV “carrier” license under the Act at all. Where goods are being hauled pursuant to contract with such an entity (i.e., a mere customer), the following rule would generally apply: “As a general rule, a hirer of an independent contractor is not liable for physical harm caused to others by the act or omission of the independent contractor.” J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 400. Put another way, the rationale for non-liability set forth in Hill Brothers would be even more applicable here, as to an entity which is not even in the business of transportation in the first place: there is no public policy basis for finding a non-delegable duty.
However, an exception to the rule of non-liability in scenarios (2) and (3) might exist. Plaintiff (or a co-defendant) might argue that the relationship between the negligent driver defendant (or his employer) and the contracting entity (either a “private carrier” or a customer) was such as to create an agency relationship, rendering that entity liable for the acts of the negligent driver, as its agent. See, Civil Code Section 2338: “a principal is responsible to third persons for the negligence of his agent in the … business of the agency….”
That is, Plaintiff can demonstrate that either the customer or “private carrier” had a “right to control” the conduct of the negligent driver and his employer: “Agency and independent contractorship are not necessarily mutually exclusive legal categories as independent contractor and servant or employee are. In other words, an agent may also be an independent contractor. (Citation omitted.) One who contracts to act on behalf of another and subject to the other’s control, except with respect to his physical conduct, is both an agent and an independent contractor. (Citation omitted.)” City of Los Angeles v. Meyers Bros. Parking System, Inc. (1975) 54 Cal.App.3d 135, 138, emphasis in original.
For example, perhaps discovery will demonstrate that TOP Coffee exercised exacting day to day supervision over the details of the work of the driver involved in the accident, so as to demonstrate a “right to control:” e.g., when he worked, where he went, what procedures he had to follow, etc. In such an instance, TOP Coffee might be found, at trial, to be a principle vicariously liable for the acts of the negligent driver as its agent. “The existence of an agency is a factual question within the province of the trier of fact….” L. Byron Culver & Assoc. v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 30; see also, CACI 3701 (“Tort Liability Asserted Against Principal—Essential Factual Elements”). It is important to consider this potential means of proving vicarious liability, given an appropriate fact situation, in addition to the possibility of proving non-delegable duty.
The concepts presented here offer initial guidance in what can be a long and challenging process: proving vicarious liability for the negligent acts of a non-employee. The result of that process will often substantially impact the Plaintiff’s ultimate recovery for damages.