Michael Crocker and Debra E. Crocker, Plaintiffs and Appellants
Alexander Morales-Santana; Sergio Tire Collection Corp., a foreign corporation, d/b/a IFA Trucking; and Werner Enterprises, Inc., Defendants and Appellees
Appeal from the District Court of Traill County, East Central Judicial District, the Honorable Joel D. Medd, Judge.
Robert G. Hoy, West Fargo, N.D., for plaintiffs and appellants.
Nicholas C. Grant (argued) and Randall N. Sickler (appeared), Dickinson, N.D., for defendants and appellees.
Carol Ronning Kapsner, Dale V. Sandstrom, William F. Hodny, S.J., Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. I concur in the result. Daniel J. Crothers. The Honorable William F. Hodny, S.J., sitting in place of McEvers, J., disqualified.
[¶1] Michael Crocker appeals from a summary judgment dismissing his personal injury claim against Werner Enterprises, Inc. Crocker argues Werner is vicariously liable for Alexander Morales-Santana's negligent operation of a semi-tractor and trailer under the statutory employee doctrine and because Werner retained control over Morales-Santana's work. We affirm.
[¶2] Traill County Sheriff Michael Crocker sustained serious injuries in March 2009, when a semi-tractor and trailer driven by Morales-Santana hit a patrol car occupied by Crocker, which was parked on the northbound side of Interstate 29 near Hillsboro while he was helping stranded motorists during a winter storm. Morales-Santana owned the semi-tractor, which he leased to Sergio Tire Collection Corporation, doing business as IFA Trucking, a Florida corporation operating as an authorized motor carrier under federal motor carrier regulations. According to Morales-Santana, he was driving the semi-tractor as an independent contractor of Sergio Tire under Sergio Tire's federal motor carrier certificate of authority. Morales-Santana was transporting freight from Omaha to East Grand Forks in a trailer owned by Werner, a Nebraska corporation.
[¶3] In 2007, Werner and Sergio Tire entered into a broker-carrier agreement, which stated Werner was a transportation broker of property authorized and registered with the Federal Motor Carrier Safety Administration of the Department of Transportation and Sergio Tire was a motor carrier registered and authorized by applicable federal and state regulatory agencies to provide transportation services in interstate commerce. The broker-carrier agreement said Werner agreed to offer shipments as a broker on a non-exclusive basis to Sergio Tire for transport as a motor carrier for Werner's customers. The agreement required Sergio Tire to comply with all applicable regulations for the transportation services and specified that Sergio Tire was an authorized motor carrier providing transportation services as an independent contractor under its motor carrier certificate of authority. The agreement required Sergio Tire to procure and maintain comprehensive general liability and automobile insurance in an amount not less than one million dollars per occurrence and required Sergio Tire to indemnify Werner for all liabilities arising out of the transportation of property.
[¶4] In 2007, Werner and Sergio Tire also entered into a trailer-interchange agreement for the interchange of Werner owned or controlled trailers or equipment with Sergio Tire for the purpose of utilizing Sergio Tire's transportation services for pickup or delivery of Werner controlled freight. The trailer-interchange agreement required Sergio Tire to ensure that each trailer was operated by a driver with a commercial driver's license complying with all applicable federal and state regulations. The agreement required Sergio
Tire to procure and maintain general liability insurance in an amount not less than one million dollars per occurrence and also required Sergio Tire to indemnify Werner for all damages arising out of Sergio Tire's use of Werner exchanged trailers except to the extent the damage was caused by Werner's negligent acts or omissions.
[¶5] Sergio Tire contracted with several commercial truck drivers, including Morales-Santana, as independent contractors to perform transportation services. According to Morales-Santana, he owned the tractor and leased it to Sergio Tire, he performed transportation services as an independent contractor for Sergio Tire, he hauled freight only for Werner in his capacity as an independent contractor for Sergio Tire, he received dispatches for hauling Werner controlled freight from Sergio Tire, and he did not contact Werner directly. According to an owner of Sergio Tire, Rosario Avila, Sergio Tire's independent contractors, including Morales-Santana, operated under Sergio Tire's federal motor carrier license and certificate of authority, Werner contacted her with information about the availability of loads, she contacted Sergio Tire's drivers regarding transportation services for Werner controlled freight, and Sergio Tire paid its drivers for the transportation services for Werner controlled freight.
[¶6] According to Skip Schollaert, a senior vice president of brokerage at the Werner Value Added Services' division of Werner, Werner Value Added Services provided broker services to shippers needing goods transported from one location to another and arranged for those goods to be transported by federally authorized motor carriers under the motor carriers' federally issued operating authority. According to Schollaert, the motor carriers used by Werner were independent contractors and provided their own drivers and power units, Werner maintained a list of drivers working for its independent contractor motor carriers, Werner assigned each driver a number to track its loads, and Werner did not request a particular driver from any of its independent contractor motor carriers. Schollaert's affidavit stated Werner communicated with the motor carrier's dispatch department with the location of a load that needed to be transported, the motor carrier's dispatcher assigned the load to a driver, Werner did not communicate with or track the drivers except when Werner's customers requested an occasional after hour update on the status of a shipment, and Werner did not give any instructions to the motor carriers and the independent contractors other than a " tour confirmation" sheet for a pickup and delivery time and location for a load. According to Schollaert, Sergio Tire was free to refuse to haul Werner controlled freight.
[¶7] Michael and Debra Crocker initially sued Morales-Santana and Sergio Tire for injuries sustained in the accident. When Sergio Tire's insurer liquidated, the district court granted a motion to withdraw by counsel for Sergio Tire and Morales-Santana. The court thereafter granted the Crockers' motion to amend their complaint to add Werner as a defendant. The Crockers alleged Morales-Santana was operating the semi-tractor and the trailer as an employee or agent of both Sergio Tire and Werner and the accident was proximately caused by Morales-Santana's negligence. The Crockers claimed that Sergio Tire and Werner were vicariously liable for Morales-Santana's negligence in operating the semi-tractor and trailer under the doctrine of respondeat superior and that all three defendants were also liable under a claim for a joint business venture.
[¶8] Werner denied liability, claiming it was a freight broker for the cargo being
hauled by Morales-Santana and Sergio Tire was an independent contractor and not Werner's employee or agent. Werner claimed Morales-Santana was an independent contractor or agent for Sergio Tire and Werner had no contract with or control over Morales-Santana.
[¶9] The district court granted Werner's motion for summary judgment and dismissed all the Crockers' claims against Werner. The court concluded Morales-Santana received directions from Sergio Tire and was not an employee of Werner. The court determined Werner was not Morales-Santana's employer merely because Werner let Sergio Tire use Werner's semi-trailer under the trailer-interchange agreement as part of its brokerage business and Morales-Santana was acting under an independent contractor agreement with Sergio Tire and his actions were controlled by Sergio Tire. The court also concluded Werner did not have the requisite control over Morales-Santana to be responsible for his actions and Werner was not involved in a joint venture with Sergio Tire and Morales-Santana.
[¶10] After a bench trial at which Morales-Santana and Sergio Tire did not appear, the district court found Morales-Santana was one hundred percent at fault for the accident, Sergio Tire was vicariously liable for Morales-Santana's negligence as his employer, and Morales-Santana and Sergio Tire were jointly and severally liable for $300,000 in damages sustained by Michael Crocker. The court also explained that Debra Crocker's claim for loss of consortium had been withdrawn because she had died while the action was pending.
[¶11] The district court dismissed the Crockers' claims against Werner by summary ...