Brettman v. M&G Truck Brokerage, Inc.

• Decision Date: 17 January 2019
• Docket Number: No. 2-18-0236,2-18-0236
• Parties: Derek BRETTMAN, Individually and as Guardian of Gina Brettman, a Disabled Person, Plaintiff-Appellant, v. M & G TRUCK BROKERAGE, INC., and Texana Pickle Producers, Inc., Defendant-Appellees.
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 180236

127 N.E.3d 880

431 Ill.Dec. 347

Derek BRETTMAN, Individually and as Guardian of Gina Brettman, a Disabled Person, Plaintiff-Appellant,

v.M & G TRUCK BROKERAGE, INC., and Texana Pickle Producers, Inc., Defendant-Appellees.

No. 2-18-0236

Appellate Court of Illinois, Second District.

Rule 23 order filed December 21, 2018

Motion to publish allowed January 17, 2019

Opinion filed January 17, 2019

Milo W. Lundblad and Jerome A. Urbik, of Brustin & Lundblad, Ltd., of Chicago, for appellant.

James P. Crawley and Gerald A. Kennedy, of Kennedy & Associates, PC, of Chicago, for appellee M&G Truck Brokerage, Inc.

Michael D. Sanders and Kingshuk K. Roy, of Purcell & Wardrope, Chtrd., of Chicago, for other appellee.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Derek Brettman, individually and as guardian of Gina Brettman, appeals the trial court's grant of summary judgment to defendants, M & G Truck Brokerage, Inc., and Texana Pickle Producers, Inc., on four counts. Counts I and II were against M & G for negligence (vicarious liability) and negligent hiring. Counts III and IV were against Texana and were also for negligence (vicarious liability) and negligent hiring. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 This matter arises out of a traffic accident between Gina Brettman and a tractor trailer driven by Isreal Vela, an employee of E.G.G. Trucking, which was owned by Efren Garcia (hereinafter collectively referred to as E.G.G., where appropriate). The accident occurred at a Huntley intersection that was under construction. It occurred after Vela had delivered a load of cucumbers from Texana in Progresso, Texas, to a Kraft/Claussen pickling plant in Woodstock. M & G brokered the delivery of the cucumbers. Plaintiff filed a 27-count complaint against E.G.G., Kraft/Claussen, Texana, M & G, and various entities involved in the construction of the intersection, such as Brown Traffic Products and Siemen's Industry, Inc. Plaintiff reached settlements with many of these entities, including Kraft/Claussen and several of the construction entities. Plaintiff's action remains pending as to E.G.G. This appeal concerns M & G and Texana only, and the trial court has entered the requisite finding under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

¶ 4 Texana grows cucumbers in Texas and Mexico. It sells the cucumbers to processing facilities across the United States, such as the Kraft/Claussen plant in Woodstock. It is not a trucking company, does not own any commercial or semi-trucks, and does not have a department-of-transportation number or motor-carrier authority. It does not contract with trucking companies. Rather, it works with shipping brokers to arrange the shipments. (In 2010, four years before the accident, a part owner of Texana, Frank Gonzalez, left Texana and became a part-owner at M & G. Members of the same, extended Gonzalez family work at both companies.)

¶ 5 M & G is a Texas business entity that brokers freight delivery of products. M & G maintains a roster of 3000 carrier companies across the country, upon which it draws to arrange for the shipment of goods for its clients. To be on the roster, a carrier is required to submit a carrier information form, an insurance certificate, a W-9 form, and its motor-carrier and department-of-transportation numbers. M & G does not have an exclusive contract with any of its carriers. It works with a number of carriers, just as each carrier works with a number of brokers. As such, M & G does not have a long-term contract with any of its carriers. Instead, each shipment load requires its own contract.

¶ 6 E.G.G. is a licensed motor carrier. It owned the refrigerated trailer involved in the instant case. It also owned the tractor that pulled the trailer, and it paid for all of the maintenance and insurance for the equipment. E.G.G. hired Vela, who had been working for E.G.G. for 10 years.

¶ 7 In August 2013, Texana entered into a contract with Kraft/Claussen to supply cucumbers for the 2013-14 season. Throughout that season, Texana worked with 10 different brokerage companies to arrange for the shipment of its cucumbers. In turn, those 10 brokerage companies secured 100 different motor carriers to haul the cucumbers.

¶ 8 On March 9, 2014, Texana contacted M & G, asking M & G to arrange the shipment at issue. M & G, in turn, chose E.G.G. to haul the load. M & G had been working with E.G.G. since 2007. In those seven years, M & G had selected E.G.G. to haul as many as 10 loads per month without incident.

¶ 9 M & G took the following actions in brokering the load. It negotiated the freight and shipping charges. And, it negotiated its own commission on the shipping charges. After the delivery was completed, Texana would pay M & G the shipping charge. Then, M & G would pay E.G.G., after deducting its own commission. M & G advanced $1500 to E.G.G. to cover expenses in hauling the load, like gas.

¶ 10 The contract between M & G and E.G.G. set forth certain instructions for the trip, such as the required temperature to keep the trailer. Kraft/Claussen chose the temperature and the deadline for delivery. Vela was to call M & G daily, before 10 a.m., or be subject to a $150 fine. He was also to call M & G if there was any delay that would prevent him from delivering the load on time.

¶ 11 Instructions aside, Vela testified in deposition that he conducted his own pre-trip inspection of the truck. He would address any problems with equipment without asking M & G for help. He chose what route to take, what speed to travel, and when to fuel up. He did not feel rushed over the course of the trip.

¶ 12 E.G.G. paid Vela for executing the trip. It administered Vela's drug testing and provided his safety training. E.G.G. instructed Vela to pick up the load from Texana at approximately 11 a.m. on March 9, 2014. Vela was to deliver the load to Kraft/Claussen by 5 a.m. on March 14, 2014.

¶ 13 After unloading the cucumbers at the Kraft/Claussen plant, Vela was no longer required to check in with M & G. E.G.G. instructed Vela to take Interstate 90 to the nearest truck stop to wait for a new load assignment, which could originate from M & G or a new broker. After delivering the load, about 25 miles from the Kraft/Claussen plant but before reaching Interstate 90, Vela collided with Brettman at an intersection. Vela was going straight, driving at the posted speed limit of 45 miles per hour, and Brettman was turning left with a green arrow. The intersection was under construction, and Vela later stated that he was confused by the traffic control signals. Vela saw that the permanent traffic signals were covered, so he assumed there were no traffic controls for drivers traveling in his direction. At the last second, he saw a temporary traffic signal hung with wire over the intersection.

The temporary signal was red. He could not stop in time, and he collided with Brettman. Brettman suffered severe injuries as a result of the collision and filed the instant lawsuit.

¶ 14 In the seventh amended complaint at issue here, the first four counts are relevant. In count I, plaintiff alleged negligence (vicarious liability) against M & G. Plaintiff theorized that E.G.G., with Vela as its driver and Garcia as its owner, were agents of M & G, because M & G imposed rules on driver conduct, thereby exercising a requisite degree of control to establish a principal-agent relationship. The agents were guilty of one of the following wrongful acts or omissions: failure to stop at a red light, failure to keep a reasonably careful lookout for other vehicles, failure to decrease speed, and driving too fast for conditions. As a result of these wrongful acts or omissions, Vela's truck collided with Brettman's automobile, causing injury.

¶ 15 In count III, plaintiff alleged the same, but against Texana.

¶ 16 In count II, plaintiff alleged negligent hiring against M & G. He alleged that M & G had a duty to exercise reasonable care when it selected a carrier to haul the load at issue. In his view, the exercise of reasonable care included performing an independent investigation and background check on E.G.G. and Vela. Had M & G performed an adequate investigation, it would have discovered, inter alia , that E.G.G. was an unrated motor carrier and that Vela had a history of forging timesheets. M & G negligently hired a company it should have known to be unfit. The exercise of reasonable care in hiring also included supervising E.G.G. in the transportation and delivery of commercial product to Kraft/Claussen. M & G failed in this as well. As a result of these wrongful acts or omissions, Vela's truck collided with Brettman's automobile, causing injury.

¶ 17 In count IV, plaintiff alleged the same, but against Texana.

¶ 18 The parties proceeded to discovery, where the evidence established the facts discussed above. In addition, plaintiff retained Whitney Morgan to testify to a broker's duty of care in selecting a trucking company. Morgan had worked for the U.S. Department of Transportation, enforcing regulations. Morgan reviewed the evidence in the case, including the deposition testimony of Vela and Garcia. In Morgan's view, brokers should contract only with carriers that have satisfactory ratings from the Federal Motor Carrier Safety Administration (FMCSA). The FMCSA conducts compliance reviews to determine whether a carrier meets minimum safety standards. The FMCSA never conducted a compliance review on E.G.G., so E.G.G. was an "unrated" carrier. In Morgan's opinion, a broker should not contract with an unrated carrier.

¶ 19 Morgan posited that, if a broker were going to contract with an unrated motor carrier, it should conduct its own safety review. To do this, a broker should go to the FMCSA website to see if a given carrier has a record of accidents or safety violations. The FMCSA website showed that, while unrated overall, E.G.G. was rated at 75% on one metric measuring...