The list grows: 2 more cases proceeding on broker liability

That case, Hardy vs. Singh, with 3PL AONE Brokerage Company LLC as a defendant, has the added aspect of involving the question of broker liability when a load is double-brokered. 

In recent weeks, the renewed issue of broker liability post-Montgomery has come up in cases involving C.H. Robinson (NASDAQ: CHRW)–where the 3PL is appealing a recent verdict of more than $600 million–and companies in the Penske (NYSE: PAG) network of companies, where an earlier dismissal of its brokerage arm from a lawsuit involving a fatal crash in Texas was reversed by the Fifth Circuit.  

In the J.B. Hunt (NASDAQ: JBHT)  case, a group of plaintiffs who are mostly family members of those killed or injured in an October 2023 crash, sued J.B. Hunt, the carrier Borderlands that was transporting the load after being hired by J.B. Hunt’s brokerage arm, and Shokhijakhon Bekmuradov, who was driving the truck involved in the crash. 

Bekmuradov was an employee driver of Borderlands. 

Is J.B. Hunt liable for a double-brokered load?

The issue for J.B. Hunt is the charge made by the plaintiffs in the initial complaint: “J.B. Hunt is also liable for its negligent hiring, supervision, entrustment, and retention of Borderlanders,” the lawsuit says. “J.B. Hunt knew or should have known that Borderlanders had a history of hiring inexperienced and incompetent drivers that put the motoring public at risk of catastrophic injury or death.”

Unlike the C.H. Robinson nuclear verdict, where the carrier it hired, Lupus Superior, had a Satisfactory rating from the Federal Motor Carrier Safety Administration (FMCSA), there is nothing in any of the legal documents that suggest Borderlanders had any sort of FMCSA rating. 

However, according to the plaintiffs in the case, the company did have “a history of ‘safety assessment’ alerts, frequent crashes, and inspection violations, including for improper

lane changes, failure to obey traffic control devices, and inability to speak English.”

The issue of a broker’s liability in such an incident previously would probably see the3PL citing the Federal Aviation Administration Authorization Act (F4A), which prohibits state action that might impact a “price, route or service.” 

But the unanimous Supreme Court case in Montgomery vs. Caribe Transport II said brokers are not protected under F4A from the “safety exception,” which allows liability and negligence cases “with respect to motor vehicles.” The Montgomery decision found that brokers fell under the definition of “motor vehicles.”

Awaiting word from the judge

In the J.B. Hunt case, the company asked for summary judgement in June. The plaintiffs responded earlier this month and the judge’s decision is now awaited.

“Under the Outsource Carrier Agreement (OCA) and Carrier Confirmation, for loads tendered by J.B. Hunt, Borderlanders agrees it is responsible for hiring, supervising, training, assigning and dispatching its commercial drivers and employees, including Bekmuradov,” J.B. Hunt said in its request for summary judgement. “It is undisputed that Borderlanders acted as the sole motor carrier for this load.”

J.B. Hunt’s role was as a broker, not as a carrier, the request said, and “there is simply no basis for finding J.B. Hunt vicariously liable for Bekmuradov’s actions on these facts.”

The plaintiffs’ response is that J.B. Hunt, by hiring Borderlanders, “ignored (its) dangerous history of safety alerts, crashes and inspection violations.” They also note that Bekmuradov did not speak English.

The response also says J.B. Hunt “held itself out as the carrier to (Lincare, the shipper whose freight was being hauled), who believed that J.B. Hunt would be transporting the load on a J.B. Hunt truck.”

Rejection in Nevada

In the Nevada case, Judge Anne Traum on August 11 shot down the requests for summary judgement made by both plaintiffs and defendants’ attorneys, though the plaintiffs’ request was contingent upon AONE Brokerage Company LLC being granted its petition.

The facts of that case are that a truck being driven by Bhupinder Singh, owner of GRK Transport, skidded on a Nevada road in July 2022 and smashed into a pickup truck headed the other way on a two-lane highway. One passenger in the pickup truck was killed; the other was injured.

The freight in that truck carrying hay had been booked by AONE, which then tendered the load to Lucky Transport. Lucky in turn brokered it to GRK and Singh.

What did the 3PL know about double brokering?

The denial of summary judgement came with some judicial observations of the charges and counter charges in the lawsuit. For example, Judge Traum said “there is evidence to show that AONE breached their duty of care when they continued to do business with Lucky even though they knew that Lucky was subcontracting their loads.”

The judge noted that federal regulations require that “anyone without a brokerage license, such as Lucky, is prohibited from acting as a broker.” By putting the load into the hands of GRK, after AONE brokered it to Lucky, the latter could be seen as brokering a load despite the lack of that license.

“Plaintiffs argue that AONE breached the standard of care because (quoting the lawsuit) ‘Lucky, as a matter of normal practice, subbed loads out to GRK despite having no broker authority and AONE knew it.'”

Meanwhile, as Judge Traum said, AONE’s argument is that “the intervening bad acts of Lucky and (driver) Bhupinder Singh cut off the chain of causation as a matter of law.”

But Judge Traum was skeptical of AONE’s claims that it was not negligent. “If AONE breached its duty to contract with a safe carrier, there is evidence to show that the breach could be the legal cause of the Plaintiffs’ injuries,” she wrote. Later, the judge, in denying the summary judgment claim, wrote that “AONE contracting with Lucky could have been unreasonable because illegal double brokering can put more high-risk drivers on the road.”

In denying Lucky’s similar request, it was a series of dominoes that led to that judicial decision. Lucky is arguing it is not responsible for Bhupinder and GRK’s negligence, and if that is the case, AONE is not negligent either. Meanwhile, AONE has requested various monetary payments from Lucky. 

“Lucky’s motion for summary judgement against AONE’s crossclaims is premised on AONE winning summary judgment,” Judge Traum said. “Since AONE has not been granted summary judgment, Lucky’s motion against the crossclaims is denied.”

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