FDL Foods, Inc. v. Kokesch Trucking, Inc.

• Decision Date: 19 August 1992
• Docket Number: No. 2-91-1099,2-91-1099
• Citation: 174 Ill.Dec. 474,599 N.E.2d 20,233 Ill.App.3d 245
• Parties: , 174 Ill.Dec. 474 FDL FOODS, INC., Plaintiff-Appellee, v. KOKESCH TRUCKING, INC., Defendant-Appellant (Farris L. Waterworth Brokerage, Inc., Defendant).
• Court: United States Appellate Court of Illinois

Page 20

599 N.E.2d 20

233 Ill.App.3d 245, 174 Ill.Dec. 474

FDL FOODS, INC., Plaintiff-Appellee, v. KOKESCH TRUCKING, INC., Defendant-Appellant (Farris L.

Waterworth Brokerage, Inc., Defendant).

No. 2-91-1099.

Appellate Court of Illinois,

Second District.

Aug. 19, 1992.

Bruce A. Brown, Bruce Goldsmith, Margaret A. Gisch (argued), Goldsmith, Thelin, Schiller, Dickson & Brown, Aurora, for Kokesch Trucking, Inc.

James Heckmann (argued), Bauer & Heckmann, P.C., Dubuque, Iowa, Erickson & Sederstrom, Omaha, Neb., for FDL Foods, Inc. and Farris L. Waterwork Brokerage.

Justice UNVERZAGT delivered the opinion of the court:

The defendant, Kokesch Trucking, Inc. (Kokesch), appeals from the judgment of the circuit court of Ogle County finding it liable as a carrier to the shipper, plaintiff FDL Foods, Inc. (FDL), under the Carmack Amendment to the Interstate Commerce Act (Carmack Amendment) (49 U.S.C. § 11707 (1988)) for economic loss sustained by FDL to a load of fresh pork trimmings carried from FDL in Rochelle, Illinois, to the buyer, Oscar Mayer & Company in Los Angeles, California. Mechanical difficulties with the truck were experienced en route, and the required 20-degree temperature in the refrigerated truck trailer was not maintained. The meat became "off-condition" (spoiled, essentially) and was rejected by the buyer when finally delivered. Kokesch denied it was the carrier claiming it only put the carrier, truck owner-operator Greg Dixson, in touch with defendant Farris L. Waterworth Brokerage, Inc. (Waterworth). Waterworth was the broker hired by FDL to arrange for carriage of its pork to Los Angeles. Waterworth, which did not appear for trial, was also found liable to FDL under the Carmack Amendment as the broker who arranged for transportation, but it is not a party to this appeal. The court granted Kokesch's cross-claim for contribution against Waterworth and dismissed as moot Kokesch's third-party claim for indemnity or contribution against Dixson, whom the parties were unable to find to serve with process.

Kokesch contends here that the evidence failed to establish that it was the carrier in law or fact and that it was prejudiced by the admission of inadmissible hearsay evidence.

Late in July 1986, FDL's transportation manager for its Rochelle, Illinois, plant, Jack Bradshaw, contacted transportation broker Waterworth to arrange carriage for two loads of fresh pork from the Rochelle plant. Both loads were to be carried by McIntosh Truck Lines, but one of the McIntosh vehicles had a mechanical breakdown. Waterworth then sought another carrier and advised Bradshaw that he had arranged for Kokesch Trucking, Inc., to take the remaining load. Bradshaw testified that notes he took during his conversation with Waterworth showed Greg Dixson was an owner-operator and that Dixson's insurance had expired.

For his own use and for the use of the Rochelle shipping department, Bradshaw prepared a shipping lineup sheet. Amongst the numerous other entries, the sheet showed the name of the truck line carrying the load (Kokesch was designated thereon as "Koke"), the number of the trailer into which the meat was to be loaded (59-R141), the estimated weight of the meat (40,000 pounds), and the temperature at which the meat must be kept (20? ). It also indicated the pickup date (8/1/86), delivery date (8/5), and the purchaser (Oscar Mayer, Los Angeles). The load was not actually picked up until Saturday, August 2. The delay in departure was, at least in part, because there was not enough fresh pork to fill Oscar Mayer's order.

The following Tuesday, August 5, Waterworth telephoned Bradshaw to advise that the truck carrying the load had broken down and that delivery would be delayed until the next day, August 6. Waterworth then called Bradshaw again to advise him that the truck repairs took longer than expected and the driver would not arrive with the load until late in the afternoon on Wednesday, August 7. The next contact Bradshaw had with Waterworth was on Thursday, August 8, when Waterworth called him. By that time, both Bradshaw and Waterworth had been informed that the meat was "off-condition" when it arrived at its destination and that it had been rejected by Oscar Mayer. Bradshaw never spoke with the drivers of the truck, Greg Dixson or Joel Jameson, and never had any contact with Kokesch. All arrangements were handled through FDL's transportation broker, Waterworth.

The bill of lading prepared by FDL that was issued for its load of pork shows "Kokesch Trucking, Inc.," on its face as the carrier. The "agent" line is signed by Greg Dixson. Bradshaw and FDL shipping supervisor Charles Hall testified about the security precautions taken at the FDL Rochelle plant to insure that only scheduled trucks enter the plant to be loaded. When a truck driver pulls up to the front gate of the plant, he identifies himself, along with the name of the common carrier, to the security officer there. The security officer checks the identity of the carrier against Bradshaw's lineup sheet for loads to be shipped out of the plant. Upon confirming that the common carrier is indeed scheduled to pick up a load, the security officer weighs the truck on the plant's scales at the front gate and directs the driver to a location inside the plant facility where his trailer can be washed out. If a motor carrier arrives that is not on Bradshaw's lineup sheet, the security officer does not permit the truck to enter the plant property without authorization from Bradshaw or the plant shipping department.

From the wash area, the driver calls the shipping office, identifying himself, the name of the motor carrier, and his trailer number. The shipping department compares this information with a copy of the lineup sheet prepared by Bradshaw, tells the driver to set his refrigeration unit at the required temperature, and then "spots" the trailer by directing the driver to pull his trailer up to a numbered dock door. The name of the motor carrier, trailer number and dock door are then recorded on a shipping lineup sheet for that particular load. The truck's trailer number is painted on the inside surface near the rear of the trailer. Because the trailer pulls up to an enclosed, refrigerated loading dock, the person loading the trailer frequently would not see either the exterior of the trailer, the tractor, or the driver. The significance of the trailer number is that it is a final check for the FDL person loading that vehicle at the assigned dock door that the correct truck has pulled up to its assigned dock door. The trailer number "R141," which was recorded on the lineup sheet prepared by Bradshaw from the information given to him by Waterworth, also appears on the shipping lineup sheet prepared by the shipping department when the truck is "spotted." After being loaded, the truck is driven to the security gate at the plant entrance where the driver must sign and pick up the bill of lading in order to get out of the gate. Hall stated he did not see the exterior of the truck which picked up the FDL load, and he did not know whether the truck belonged to Greg Dixson or to Kokesch. Many truck lines do not have any words on the outside, only numbers such as trailer numbers or ICC numbers.

According to his evidence deposition testimony, Farris Waterworth's first contact with Kokesch occurred several months prior to the shipment of the load of meat at issue. Waterworth was initially contacted by Tom and Pat Van Donselaar. The Van Donselaars represented themselves to be working for Kokesch and solicited Waterworth's services as a broker for Kokesch. Waterworth advised the Van Donselaars that he required certain information from Kokesch, including, but not limited to, its ICC authority as a motor carrier and proof of insurance coverage. Some, but not all, of this requested documentation was forwarded to Waterworth by Kokesch vice-president Roxanne Kokesch with a cover letter dated February 20, 1986. Subsequently, Waterworth received a call from a woman named Janelle who reported to him that she worked for Kokesch and was calling him "looking for loads." Because Waterworth had not yet had a chance to view Kokesch's operation in person, as was his usual practice, and did not have all the requested information, he did not broker any loads to Kokesch at that time.

Janelle Wieland, formerly known as Janelle Reddemann, was hired on April 21 and employed as of April 28, 1986, in Kokesch's dispatch department. She was classified at that time as a "broker." Part of her wages were paid under a Job Partnership Training Act (JPTA) grant. According to JPTA grant documents prepared by Kokesch, 400 of Janelle's 500 hours of on-the-job training were to be focused on sales. Her duties in sales were described on the documents as "contacting trucking firms and shippers and arranging freight loads from one location to another."

On August 1, 1986, Janelle contacted Waterworth to seek available loads for Kokesch. At the time of the call, Waterworth had none. Later that day, the McIntosh vehicle broke down, making it unavailable to pick up the FDL load. Janelle and Waterworth had another telephone contact at which time Waterworth advised Janelle that there was a load available for Kokesch. Waterworth told Janelle of the requirements for the load, including the requirement that the equipment be Kokesch equipment and drivers (two) and that it be a 45-foot-long refrigerated trailer. Waterworth told Janelle that the drivers should be Kokesch drivers and should make their schedule so the delivery would be on the morning of August 5 and that they should report to him en route, after calling Kokesch, if they had any problems which delayed the load so that he could inform Bradshaw. At this time, Waterworth had Kokesch's insurance and authority certificates in his file.

Janelle then later called Waterworth back and gave him the tractor and trailer numbers and the names...