Cruz v. Lopez
| Citation | 919 N.W.2d 479,301 Neb. 531 |
| Decision Date | 09 November 2018 |
| Docket Number | No. S-17-1240.,S-17-1240. |
| Parties | Edgar CRUZ, AS Father and NEXT FRIEND OF Hazel N. CRUZ, a Minor Child, Appellant, v. Carlos J. LOPEZ et al., Appellees. |
| Court | Supreme Court of Nebraska |
Kent A. Schroeder, of Ross, Schroeder & George, L.L.C., for appellant.
Robert S. Keith, Omaha and Alexis M. Wright, of Engles, Ketcham, Olson & Keith, P.C., for appellee Werner Construction, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
The employee of a registered motor carrier caused an accident while returning the motor carrier’s truck after delivering the last load of the day under a contract between the motor carrier and a general contractor, also a registered motor carrier, to haul away construction debris. The injured party’s representative sued the driver, the motor carrier who employed the driver, and the general contractor. The court granted summary judgment for the general contractor. At issue is whether, viewing the evidence in a light most favorable to the plaintiff, our statutory scheme regulating intrastate motor carriers imputes an employer-employee relationship between the general contractor and the subcontracting motor carrier’s employee for purposes of vicarious liability under respondeat superior. Also at issue is whether the general contractor could be held liable under one of the recognized common-law exceptions to a general contractor’s nonliability for the acts or omissions of an independent contractor.
On June 7, 2012, Hazel N. Cruz, a minor child, was injured in an automobile accident caused by Lyle J. Carman. Carman was an employee of Lopez Trucking and, at the time of the accident, was driving a dump truck owned by Carlos J. Lopez, doing business as Lopez Trucking. Testing conducted following the accident revealed that Carman was operating his vehicle under the influence of the controlled substances amphetamine
and methamphetamine.
Edgar Cruz, as father and next friend of Hazel, sued Carman for negligence, seeking recovery of medical expenses. Cruz joined Lopez, as the sole owner of Lopez Trucking, on the theory of imputed liability as Carman’s employer, alleging that "[a]t all times relevant hereto, Carman was driving the ... dump truck on June 7, 2012, in the course of his employment and with the permission of Lopez."
Cruz also joined Werner Construction, Inc. (Werner), the general contractor for a project that Lopez Trucking had been contracted to do hauling work for. On the day of the accident, Carman had been hauling debris away from the construction site pursuant to Lopez Trucking’s oral agreement with Werner, but he had delivered his last load for the day and was returning the truck to where Lopez directed him to park it for the night. Cruz sued Werner on the theories that Werner was in complete and exclusive control over the vehicle Carman was driving or that Carman was Werner’s " ‘statutory employee’ " pursuant to Neb. Rev. Stat. § 75-363 (Cum. Supp. 2012). Cruz alleged that Werner was negligent in failing to follow safety rules to determine Carman’s qualifications and whether he was drug free, in compliance with Werner’s drug-free workforce policy and federal regulations, as well as in failing to ensure that Lopez Trucking had Carman submit to a preemployment drug test. Cruz did not allege that the accident occurred on premises over which Werner had control.
Werner denied liability for the accident and moved for summary judgment. The evidence presented at the summary judgment hearing was largely undisputed. When the accident occurred, Carman was driving a dump truck categorized as a commercial motor vehicle owned by Lopez, doing business as Lopez Trucking. Lopez Trucking possessed and was operating under a U.S. Department of Transportation (DOT) motor carrier identification number. The Federal Motor Carrier Safety Administration found Lopez Trucking to be in violation of 49 C.F.R. § 382.305 (2011) of the Federal Motor Carrier Safety Regulations, which requires employers to implement a random controlled substances and alcohol testing program for their employees. Lopez Trucking was fined for the violation.
As alleged in Cruz’ complaint and admitted by Werner, Carman was an employee of Lopez Trucking. He was paid an hourly wage by Lopez Trucking, which withheld taxes and provided Carman with workers’ compensation insurance.
Lopez Trucking had been hired by Werner to haul debris from a construction site located on Interstate 80, for what was referred to as the "I-80 Air Park West Junction US-77 Project" (Air Park project). Lopez, Carman, and another driver who worked for Lopez Trucking drove Lopez Trucking dump trucks for the hauling job at the Air Park project.
Werner is also a registered commercial motor carrier with a DOT number. The Federal Motor Carrier Safety Administration did not conduct an investigation of Werner in relation to the accident.
Cruz entered into evidence a lease agreement which listed Werner as lessor and Lopez as lessee, but the agreement was dated approximately 1 year before Lopez Trucking worked on the Air Park project. Further, it was signed only by Werner’s president, not by Lopez. Lopez testified that he had never seen the agreement.
The agreement stated that Werner was leasing a dump truck for hauling on its construction projects. It specified the hourly rate, that Lopez would not be allowed to purchase fuel at the asphalt plant, that he would be required to fully fill out one "Lease Driver Report" per day, that Lopez must have at least $1 million in liability insurance, that Lopez would use and possess the equipment in compliance with all applicable laws, that Lopez would permit the equipment to be operated only by persons experienced in the use and operation thereof, and that he would not permit any insignia, lettering, safety warnings, or instructions on the equipment to be removed or defaced. An indemnification provision in the agreement provided that Lopez would assume the entire responsibility and liability for damages or injury to all persons and property connected with the use or care of the leased equipment.
Lopez testified that he had an oral agreement with Werner for work at the Air Park project and that it was not a lease agreement. He admitted, however, that the unsigned lease agreement accurately reflected their oral agreement with respect to the hourly rate and the requirement that Lopez Trucking obtain a liability policy of not less than $1 million. Lopez explained that this hourly rate compensated him for the maintenance and fuel for his dump trucks, which were entirely the responsibility of Lopez Trucking.
Lopez elaborated that the job at the Air Park project involved hauling millings from the construction site to a plant in Milford, Nebraska. Lopez testified that at the end of each day, Werner’s foreman for the Air Park project would let him know how many trucks to deliver to the jobsite the next day. Werner’s supervisor at the milling machine would also tell Lopez each day when Lopez’ trucks were no longer needed. No one directed Lopez as to the specific route he must take in driving between the construction site and the Milford plant.
Furthermore, Lopez explained that he was under no obligation to haul for Werner on any given day, or to haul a minimum number of loads, and Lopez was free to dictate his own schedule and that of his employees. Each day Lopez told Carman what to do, where to go, and when to do it. At no time was Carman, Lopez, or Lopez Trucking authorized by Werner to operate under Werner’s DOT number.
Julie Budnick, Werner’s project manager, described that usually when Werner contracted with Lopez Trucking or similar contracts, it needed the trucks to supplement Werner’s fleet only for short periods of time. There were no written agreements in such situations. Budnick testified that Werner would call and tell the trucking company that Werner "need[s] a couple of trucks" and that "then they are free to do whatever they want to do."
She explained that "these trucks have no obligation to work for us." Such trucks do not "want to necessarily commit"; "they want to go anywhere they want to go for the highest pay they can get." Lopez had worked for Werner in this capacity on other jobs in the past.
Budnick testified that on jobs like the Air Park project where they call in a few extra trucks, Werner does not need to tell the drivers what to do when they arrive. She said, "They don’t have to be told anything, but that, you know, when they get to the end, they’re done, go home or—or leave, we don’t need you anymore for today."
At one point, Budnick was handed a copy of the unsigned lease agreement and answered in the affirmative that it was the lease agreement that Werner had with Lopez. But she later explained that she did not believe the lease agreement applied to Lopez, because it was authored for situations where drivers are using Werner’s equipment. Budnick indicated that the lease agreement was used only when other truckers were pulling Werner trailers. She said that the lease agreement presented to her "doesn’t even apply because we’re not ren-—we’re not controlling, we’re not using his equipment at all, he’s not using our equipment." Budnick testified that Lopez
Under the bid proposal for the Air Park project, Werner had agreed to comply with all applicable federal, state, and local laws governing safety, health, and sanitation; provide all safeguards, safety devices, and protective equipment; and take any other needed actions that Werner or the state...
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