Sparks v. M&D Trucking ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/08/2019 01:06 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977Stephanie A. Sparks, Personal R epresentative of
the Estate of Gary W. Isom, deceased, et al.,
appellants and cross-appellees, v.
M&D Trucking, L.L.C., appellee
and cross-appellant.
___ N.W.2d ___
Filed December 28, 2018. No. S-17-1209.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, for which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the court below.
4. Summary Judgment. On a motion for summary judgment, the question
is not how a factual issue is to be decided, but whether any real issue of
material fact exists.
5. Employer and Employee: Independent Contractor: Master and
Servant. Ordinarily, a party’s status as an employee or an independent
contractor is a question of fact. However, where the facts are not in
dispute and where the inference is clear that there is, or is not, a master
and servant relationship, the matter is a question of law.
6. Contracts: Parties: Words and Phrases. By stating “where the infer-
ence is clear,” the Nebraska Supreme Court means that there can be no
dispute as to pertinent facts pertaining to the contract and the relation-
ship of the parties involved and only one reasonable inference can be
drawn therefrom.
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 9777. Employer and Employee: Independent Contractor. A determination
of a party’s status as an employee or an independent contractor is deter-
mined from all the facts in the case and depends on the facts underlying
the relationship of the parties irrespective of the words or terminology
used by the parties.
8. ____: ____. No single test exists for determining whether one performs
services for another as an employee or as an independent contractor,
and the following 10 factors must be considered: (1) the extent of
control which, by the agreement, the potential employer may exercise
over the details of the work; (2) whether the one potentially employed
is engaged in a distinct occupation or business; (3) the type of occu-
pation, with reference to whether, in the locality, the work is usually
done under the direction of the potential employer or by a specialist
without supervision; (4) the skill required in the particular occupation;
(5) whether the potential employer or the one potentially employed sup-
plies the instrumentalities, tools, and the place of work for the person
doing the work; (6) the length of time for which the one potentially
employed is engaged; (7) the method of payment, whether by the time
or by the job; (8) whether the work is part of the regular business of the
potential employer; (9) whether the parties believe they are creating an
agency relationship; and (10) whether the potential employer is or is not
in business.
9. ____: ____. The extent of control is the chief factor distinguishing an
employment relationship from that of an independent contractor.
10. ____: ____. In examining the extent of a potential employer’s control
over the worker, it is important to distinguish control over the means
and methods of the assignment from control over the end product of the
work to be performed.
11. Independent Contractor: Words and Phrases. An independent con-
tractor is one who, in the course of an independent occupation or
employment, undertakes work subject to the will or control of the person
for whom the work is done only as to the result of the work and not as
to the means or methods used.
12. Independent Contractor: Contracts. Even the party contracting with
an independent contractor may, without changing the status, exercise
such control as is necessary to assure performance of the contract in
accordance with its terms.
13. Negligence: Liability: Contractors and Subcontractors. Generally,
one who employs an independent contractor is not liable for physical
harm caused to another by the acts or omissions of the contractor or
its servants.
14. ____: ____: ____. A party contracting with an independent contractor
can be liable for physical harm caused to another if (1) the contracting
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977party retains control over the contractor’s work, (2) the contracting party
is in possession and control of premises, (3) a statute or rule imposes
a specific duty on the contracting party, or (4) the contractor’s work
involves special risks or dangers. Courts often refer to the latter three
exceptions as involving nondelegable duties.
15. Negligence: Liability: Contractors and Subcontractors: Words and
Phrases. A nondelegable duty means that a contracting party to an
independent contractor, by assigning work consequent to a duty, is not
relieved from liability arising from the delegated duties negligently
performed.
16. Contractors and Subcontractors: Liability. To fall within the control
exception to the general rule of nonliability, the contracting party’s
involvement in overseeing the work must be substantial.
17. ____: ____. To fall within the control exception to the general rule
of nonliability, control must directly relate to the work that caused
the injury.
18. ____: ____. The key element of control must exist with respect to the
very thing from which the injury arose.
19. ____: ____. To impose liability, the contracting party must have (1)
supervised the work that caused the injury, (2) actual or constructive
knowledge of the danger that ultimately caused the injury, and (3) the
opportunity to prevent the injury.
20. Negligence: Contractors and Subcontractors. Having the right to
control and supervise the work implies having the ability to oversee
and direct the manner in which the work which caused the injury is car-
ried out.
21. Federal Acts: Motor Carriers: Judgments: Proof. The federal Motor
Carrier Safety Improvement Act of 1999 and the Federal Motor Carrier
Safety Regulations generally require that a commercial motor carrier
operate only if registered and that such registration requires proof of
financial responsibility in order to ensure collectability of a judgment
against the motor carrier.
22. Federal Acts: Motor Carriers: Intent. The federal Motor Carrier
Safety Improvement Act of 1999 and the Federal Motor Carrier Safety
Regulations protect the public and provide financial responsibility for
motor carrier accidents by creating a legal right and a duty to control
vehicles operated for the regulated motor carrier’s benefit.
23. Motor Carriers: Brokers: Liability. When distinguishing between a
motor carrier and a broker, the determinative question is whether the
disputed party accepted legal responsibility to transport the shipment.
24. Motor Carriers: Brokers. A transportation company may have author-
ity to act as a shipper, broker, or carrier, and a court must focus on the
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977specific transaction at issue—not on whether the transportation company
acts as a motor carrier in other transactions.
25. Negligence: Liability: Employer and Employee: Independent
Contractor. An employer is subject to liability for physical harm to
third persons caused by the employer’s failure to exercise reasonable
care in selecting an employee, even if such employee is an indepen-
dent contractor.
26. Federal Acts: Motor Carriers: Records. The federal Motor Carrier
Safety Improvement Act of 1999 and the Federal Motor Carrier Safety
Regulations require motor carriers to obtain and maintain records on
each of the drivers they employ, such as driving and medical records.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Patrick R. Turner, Steven G. Emerson, Thomas H. Davis,
and Bradley J. Yeretsky, of Stinson, Leonard & Street, L.L.P.,
for appellants.
Thomas A. Grennan and Adam J. Wachal, of Gross &
Welch, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg JJ.
Funke, J.
Stephanie A. Sparks, as personal representative of the estate
of Gary W. Isom and as temporary guardian of Justin W. Isom;
Melanie Crosby, as personal representative of the estate of
Tiffany R. Isom; and Nancy Ragains, as personal representa-
tive of the estate of Susan G. Isom (appellants), appeal the dis-
trict court’s order granting the motion for summary judgment
of M&D Trucking, L.L.C. (M&D). M&D cross-appeals. For
the reasons set forth herein, we affirm.
I. BACKGROUND
1. Facts
Around 5 a.m. on August 28, 2014, Kenneth Bryan Johnson
was driving a truck and trailer and failed to stop at a stop sign,
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977striking a vehicle carrying members of the Isom family: Gary,
Susan, their son Justin, and Gary’s adult daughter Tiffany. Gary,
Susan, and Tiffany died as a result of the collision, and Justin
was seriously injured. Johnson had been driving longer than
permitted under applicable law, and Johnson had consumed
alcohol less than 4 hours before going on service. Johnson had
a criminal history relating to the operation of motor vehicles,
including driving on a suspended license, driving without a
license, and driving under the influence of alcohol.
Johnson contracted with Turbo Turtle Logistics LLC (Turbo
Turtle) and was driving a truck and trailer with Turbo Turtle
signage on the date of the accident. According to deposition
testimony from Turbo Turtle president Robert Brackett, Turbo
Turtle is a logistics and brokerage company; logistics mean-
ing the physical transportation of products, and brokerage
meaning the arranging of transportation of freight by others.
At the time of the accident, Turbo Turtle was a motor carrier.
At all relevant times, Brackett testified that he was the only
employee of Turbo Turtle and that the drivers were indepen-
dent contractors. Brackett explained Johnson had been one of
Turbo Turtle’s independent contractor drivers approximately
30 days prior to the accident and that he leased a truck and
trailer from Turbo Turtle during that time. Johnson was not
allowed to use Turbo Turtle’s equipment for any work that was
not dispatched through Turbo Turtle or M&D, the company
which was hired to transport the load Johnson carried during
the accident.
Turbo Turtle had had a business relationship with M&D
since Turbo Turtle’s creation in 2012. Brackett testified that
Turbo Turtle got involved with M&D because Turbo Turtle was
trying to add trucks and did not have time to look for work.
Brackett opined that, likely, M&D worked with Turbo Turtle
to add to its capacity in using Turbo Turtle’s drivers, trucks,
and trailers. From its inception until the end of its relationship
with M&D, Brackett explained that about 98 percent of Turbo
Turtle’s work came from M&D.
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977M&D operates as a brokerage and trucking company. M&D
did not have an ownership interest in Turbo Turtle. At the time
of the accident, Michael Plambeck was the manager and Dan
Rudnick assisted. According to Plambeck, through its trucking
division, M&D employed four to five drivers who drove trucks
and trailers owned by M&D. Through its brokerage division,
M&D got orders from customers and then sent the load infor-
mation out to M&D drivers or other carriers. According to
Rudnick, M&D’s customers did not know which loads would
be assigned to M&D drivers and which would be assigned to
other carriers. The customers would be billed the same amount
regardless of which type of driver was used. While not separate
companies, M&D had separate licensing for its brokerage and
trucking services and separate insurance plans.
M&D and Turbo Turtle signed a contract detailing the rela-
tionship between the companies titled “Contract for Dispatch
Services at Reduced Rate With Mutual Non-Competition Upon
Early Termination by Either Party.” The contract provided that
M&D would be the exclusive dispatch servicer for Turbo
Turtle with an exception for summer and fall harvesttime in
South Dakota. As to Turbo Turtle’s drivers, the contract stated,
“[Turbo Turtle] will assure that at least 42 weeks of the yearly
hauling in total for all of the [independent contractors] under
contract with [Turbo Turtle] results from M&D dispatch serv­
ices”; “[Turbo Turtle] will maintain at least one [independent
contractor] under dispatch by M&D at all times”; and “this
contract does not require the dedication by [Turbo Turtle] of
a particular [independent contractor] to dispatch by M&D.”
It additionally applied a 2-year, noncompetition agreement
should the parties prematurely break the contract. By opera-
tion of this contract, Brackett claimed M&D was leasing his
four Turbo Turtle trucks. Plambeck, in turn, asserted that
any drivers arranged through Turbo Turtle were Turbo Turtle
employees or contractors and, as such, M&D never conducted
background checks, criminal history background checks,
review of a driver’s driving record or traffic violations, or
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977review of the performance of Turbo Turtle’s drivers. Instead,
Plambeck testified, M&D requested and received from Turbo
Turtle various legal forms necessary for work between a bro-
ker and carrier, including a “DOT motor carrier number” say-
ing Turbo Turtle is legally allowed to haul freight, insurance
verification, and W-9 forms for tax purposes. Brackett alleged
the contract between M&D and Turbo Turtle was in effect at
the time of the accident. Plambeck claimed that M&D ter-
minated the contract on August 28, 2014, once they became
aware that Turbo Turtle hauled a load for a different company,
while Brackett opined that the contract was terminated in con-
nection with the accident.
Brackett, Plambeck, and Rudnick explained the general pro-
cedure between M&D and Turbo Turtle for assigning and
transporting hired loads. Plambeck described that a customer
would communicate the details of a load to M&D; M&D
would document the information on a “load sheet” with the
load number, pickup location, destination, telephone numbers,
and load quantity; M&D would communicate to Turbo Turtle
or a specific driver the load information; and the driver would
receive a paper at the pickup and destination and that paper
would be sent to M&D for billing purposes. Brackett explained
M&D would communicate the load information to Turbo Turtle
by sending the individual drivers text messages and Turbo
Turtle a copy of those messages. According to Brackett, Turbo
Turtle would have no knowledge of who the actual customers
were. For payment on loads carried by Turbo Turtle drivers,
M&D would charge the customer the same amount as it would
have if it used its own driver, M&D would keep a percentage
of the total and pay the rest to Turbo Turtle, and Turbo Turtle
would keep a percentage of the amount provided by M&D and
pay the rest to the driver.
Specifically, on the facts surrounding the accident at issue,
M&D had a telephone conversation with Northern Ag Service,
Inc., now known as NORAG LLC (Northern Ag), about pick-
ing up fracking sand from Genoa, Nebraska, to transport to
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977Blackwell, Oklahoma. Northern Ag is a freight broker, mean-
ing vendors call Northern Ag about moving various loads
and Northern Ag then matches the vendor with a carrier or,
sometimes, with another broker who contacts another carrier.
M&D did not tell Northern Ag which of the ordered loads
would be handled by M&D and which would be handled by
outside drivers.
Plambeck testified that Northern Ag was fully aware that
M&D was a brokerage and trucking company and that it used
its own company drivers as well as drivers from other com-
panies to haul loads for Northern Ag. However, there was no
written contract in place detailing the relationship between
M&D and Northern Ag, and a manager for Northern Ag testi-
fied during a deposition that M&D never informed Northern
Ag that it was working with outside drivers. He explained
that he believed Northern Ag thought it was dealing only with
M&D, not knowing Turbo Turtle was handling some of its
loads, and that Northern Ag hired M&D to be the carrier. In
various records of pickup and destination locations created by
Northern Ag for its use, Northern Ag repeatedly listed M&D
as the carrier. In the origin ticket/origin bill of lading created
by Northern Ag for the load carried during the accident, M&D
was listed as the carrier on the pickup.
On August 27 and 28, 2014, M&D, Turbo Turtle, and
Johnson had various cell phone communications. Plambeck
testified that around 11 p.m., someone from M&D text mes-
saged either Turbo Turtle or Johnson about carrying one of
the Northern Ag loads. Rudnick explained that he had contact
with either Turbo Turtle or Johnson that night, because a load
number did not work and Rudnick had to provide a new num-
ber. Plambeck testified Johnson was not required to call M&D
once he picked up the load. From information obtained from
Johnson’s cell phone, the following communications occurred:
• 
At 9:01 a.m. on August 27, 2014, M&D text messaged
Johnson and canceled a load that he was carrying for M&D
due to rain.
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977• Approximately 30 minutes later, M&D text messaged Johnson
and dispatched him and his truck to transport a load of sand
from Genoa, Nebraska, to Waterford City, North Dakota.
• At 10:47 a.m., Johnson made a short telephone call to M&D.
• At 10:53 a.m., Johnson text messaged Turbo Turtle and
informed it that M&D had dispatched him on a load from
Genoa to Waterford City.
• At 11:43 p.m., Johnson received a text message from Turbo
Turtle stating, “Genoa, NE Sand to Blackwell, OK.”
• At 12:09 a.m. on August 28, 2014, Johnson received a tele-
phone call from M&D lasting approximately 1 minute 41
seconds.
• At 12:41 a.m., Johnson received a telephone call from M&D
lasting approximately 8 minutes 41 seconds.
• From 12:54 a.m. to 12:58 a.m., Johnson and Turbo Turtle
exchanged six text messages, including discussions about
truckstops available en route to Blackwell.
The accident between the Isom family and Johnson occurred
around 5 a.m. on August 28, 2014. A police report from the
accident listed Turbo Turtle as the motor carrier.
2. A ppellants’ Claims
Appellants brought the instant action against Turbo Turtle,
Johnson, and M&D. Pursuant to a stipulation and joint motion,
the court dismissed the claims against Turbo Turtle and Johnson.
On the claims against M&D, the stipulation and motion to dis-
miss provided: “This Dismissal does not involve any other
defendant or potential tortfeasor. The Plaintiffs reserve all
claims against M&D . . . and the claims against it remain pend-
ing and are not dismissed.” The order dismissing the claims
against Turbo Turtle and Johnson confirmed: “This Dismissal
does not extend to M&D . . . . The Plaintiffs’ claims against
M&D [remain] pending . . . .”
As to M&D, appellants alleged that (1) Johnson was an agent
of M&D, and M&D was liable for his negligence through the
doctrine of respondeat superior; (2) M&D was negligent in hir-
ing, training, or supervising Johnson given Johnson’s unfitness
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977to operate motor vehicles on public roads and a criminal history
regarding the operation of motor vehicles; and (3) M&D was
negligent per se in that M&D was the operator and/or statutory
lessee of the truck and trailer driven by Johnson under the fed-
eral Motor Carrier Safety Improvement Act of 1999 (FMCSA)
and Federal Motor Carrier Safety Regulations (FMCSR) and,
thus, liable for Johnson’s and its own negligence.
3. Summary Judgment
M&D filed a motion for summary judgment claiming there
was no genuine issue of material fact and that M&D was
entitled to summary judgment as a matter of law. In support
of the motion, M&D asserted Johnson was not an employee
of M&D, Johnson was an independent contractor of Turbo
Turtle who was in turn an independent contractor of M&D,
and M&D did not have sufficient control over Johnson to be
vicariously liable.
Following a hearing on the motion, the district court granted
M&D summary judgment as to all three claims. On the claim
of respondeat superior, the court first determined appellants’
claim is not barred by the prior settlement with Turbo Turtle and
Johnson through operation of Neb. Rev. Stat. § 25-21,185.11(1)
(Reissue 2016) (“[a] release, covenant not to sue, or similar
agreement entered into by a claimant and a person liable shall
discharge that person from all liability to the claimant but shall
not discharge any other persons liable upon the same claim
unless it so provides”). The court then determined that Johnson
was not an employee of M&D and that M&D did not exert
sufficient control over Johnson to establish appellants’ claim of
respondeat superior. On the claim of negligent hiring, training,
or supervising, the court determined M&D complied with its
reasonable duty of care as a broker in that the record did not
support a finding that M&D knew or should have known Turbo
Turtle had an inadequate safety record or that Turbo Turtle
hired an unsafe driver in Johnson. Finally, the court noted
that negligence per se is not recognized as a separate cause of
action in Nebraska for a violation of FMCSA and FMCSR.
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977II. ASSIGNMENTS OF ERROR
Appellants assign, restated, that the district court erred in
granting summary judgment, because there was a genuine issue
of material fact of (1) whether M&D was Johnson’s common-
law or statutory employer and (2) whether M&D negligently
hired, trained, or supervised Johnson.
On cross-appeal, M&D assigns, restated, that the district
court erred in finding that appellants’ decision to settle with
Turbo Turtle and Johnson does not operate as a release of
M&D in the event that Turbo Turtle or Johnson are deemed
agents of M&D.
III. STANDARD OF REVIEW
[1-3] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.1 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence.2 Statutory interpretation presents a question of
law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by
the court below.3
IV. ANALYSIS
1. Employee Versus Independent
Contractor
Appellants first assign the district court erred in its deter-
mination that Johnson was an independent contractor and
not M&D’s employee. Appellants claim there is substantial
1
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
2
Id.3
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977evidence that M&D controlled Johnson’s work, as well as
other relevant factors to create a question of fact as to whether
M&D was Johnson’s common-law employer.
[4-6] On a motion for summary judgment, the question is
not how a factual issue is to be decided, but whether any real
issue of material fact exists.4 Ordinarily, a party’s status as an
employee or an independent contractor is a question of fact.5
However, where the facts are not in dispute and where the
inference is clear that there is, or is not, a master and servant
relationship, the matter is a question of law.6 By stating “where
the inference is clear,” this court means that there can be no
dispute as to pertinent facts pertaining to the contract and the
relationship of the parties involved and only one reasonable
inference can be drawn therefrom.7
In this matter, the material facts are not in dispute. Rather,
the parties argue about the inferences to be drawn from those
facts concerning the legal relationships of the parties. We
determine these inferences are clear and can be determined as
a matter of law.
[7,8] A determination of whether Johnson was M&D’s
employee or an independent contractor is determined from
all the facts in the case and depends on the facts underly-
ing the relationship of the parties irrespective of the words
or terminology used by the parties.8 No single test exists for
determining whether one performs services for another as an
employee or as an independent contractor, and the following
10 factors must be considered: (1) the extent of control which,
by the agreement, the potential employer may exercise over the
details of the work; (2) whether the one potentially employed
is engaged in a distinct occupation or business; (3) the type of
4
Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997).
5
Id.6
Id.7
Id.8
See id.- 989 -
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SPARKS v. M&D TRUCKING
Cite as 301 Neb. 977occupation, with reference to whether, in the locality, the work
is usually done under the direction of the potential employer
or by a specialist without supervision; (4) the skill required in
the particular occupation; (5) whether the potential employer
or the one potentially employed supplies the instrumentalities,
tools, and the place of work for the person doing the work; (6)
the length of time for which the one potentially employed is
engaged; (7) the method of payment, whether by the time or by
the job; (8) whether the work is part of the regular business of
the potential employer; (9) whether the parties believe they are
creating an agency relationship; and (10) whether the potential
employer is or is not in business.9
(a) Extent of Control
[9-12] The extent of control is the chief factor distinguishing
an employment relationship from that of an independent con-
tractor.10 In examining the extent of the potential employer’s
control over the worker in this context, it is important to dis-
tinguish control over the means and methods of the assign-
ment from control over the end product of the work to be per-
formed.11 An independent contractor is one who, in the course
of an independent occupation or employment, undertakes work
subject to the will or control of the person for whom the work
is done only as to the result of the work and not as to the
means or methods used.12 Even the party contracting with an
independent contractor may, without changing the status, exer-
cise such control as is necessary to assure performance of the
contract in accordance with its terms.13
Appellants contend several facts support a finding that M&D
exerted sufficient control over Johnson for a determination that
9
See Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).
10
See Kime, supra note 4.
11
Id.12
Id.13
See id.- 990 -
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Cite as 301 Neb. 977the relationship went beyond that of an independent contrac-
tor to an employer-employee. Specifically, appellants point to
the text messages and cell phone calls between M&D, Turbo
Turtle, and Johnson representatives on August 27 and 28, 2014;
the contract between M&D and Turbo Turtle which provided
M&D would be the exclusive dispatch servicer for Turbo
Turtle; and the agreement between Turbo Turtle and Johnson
that Johnson could not drive the leased equipment for loads
outside those for M&D and Turbo Turtle.
However, these factual allegations do not lead to a deter-
mination that M&D and Johnson’s relationship went beyond
that of an independent contractor. The text messages cited
by appellants show that M&D canceled a load due to rain at
9:01 a.m. on August 27, 2014; that M&D provided Johnson
load information for a different load to North Dakota 30 min-
utes later; and that Turbo Turtle provided load information to
Johnson about the Northern Ag load at 11:43 p.m. By provid-
ing only the pickup and destination locations, these messages
go to the result of the work and not the means or methods
used.14 Additionally, the fact that M&D text messaged Johnson
the North Dakota load information directly rather than Turbo
Turtle is not at odds with an independent contractor relation-
ship. M&D and Turbo Turtle had a history of M&D’s mak-
ing direct communications with Turbo Turtle’s drivers; Turbo
Turtle was informed of the North Dakota load by Johnson;
and M&D communicated with Turbo Turtle directly about the
Northern Ag load, which Turbo Turtle then communicated to
Johnson. Through the text messages, the record demonstrates
only that M&D was controlling Johnson as to the end product
of the work to be performed and did so pursuant to its agree-
ment with Turbo Turtle.
The cell phone calls also do not provide sufficient support
that M&D controlled Johnson’s actions as to the means and
methods to be used. Appellants argue the timing of these calls
14
See id.- 991 -
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Cite as 301 Neb. 977implies M&D was directing Johnson on the routes to take or
the means in which to haul the load, because they occurred
after he had the load information, but there is no evidence
in the record as to the subject or content of the cell phone
calls. Instead, the only information available about the con-
tent of the calls is from M&D representatives who testified
that, while they do not remember the content of these specific
calls, they contacted Johnson only concerning load informa-
tion. Additionally, it is not a clear inference from the timing
of these calls that they were instructing Johnson on the routes
to take or the means to haul the load. These cell phone calls
occurred relatively soon after Turbo Turtle text messaged
Johnson the Northern Ag load information which could imply
the conversations were merely communications expanding on
the load information. The conversations could also have been
concerning the status of other loads or a variety of other topics.
Without further evidence on the subject of the calls, there is
no clear implication that, as appellants suggest, the calls were
M&D’s instructing Johnson on the means or methods in which
to drive the load.
As to the contract between M&D and Turbo Turtle and
the agreement between Turbo Turtle and Johnson, appellants
argue these agreements lead to the conclusion that Johnson
was permitted to drive only M&D’s loads, which was evidence
that M&D exercised control over Johnson under an employer-
employee relationship. However, the record does not lead to
such conclusion. Johnson never contracted with M&D; instead,
Turbo Turtle contracted with M&D and Turbo Turtle con-
tracted with Johnson. According to the contract between M&D
and Turbo Turtle, M&D was to provide exclusive dispatch
services to Turbo Turtle with an exception for periods in which
Turbo Turtle was carrying loads related to harvesttime. While
the contract required at least one of Turbo Turtle’s drivers be
available for dispatch by M&D, the contract stated that it did
not “require the dedication by [Turbo Turtle] of a particu-
lar [independent contractor] to dispatch by M&D.” Johnson’s
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Cite as 301 Neb. 977agreement with Turbo Turtle, in turn, provided that Johnson
could not drive Turbo Turtle’s equipment for any load other
than those issued by Turbo Turtle or M&D but did not prevent
Johnson from using other equipment to carry outside loads.
There is also nothing in the record that the agreement prohib-
ited Johnson from carrying loads for Turbo Turtle that were
unrelated to M&D, and Turbo Turtle was permitted under the
M&D contract to assign non-M&D loads during harvesttime.
Therefore, appellants’ contention that Johnson could carry only
M&D loads is refuted by the record.
In consideration of all of the above and in review of the
record, there is insufficient evidence to create a genuine issue
of material fact that M&D exerted the extent of control nec-
essary over Johnson for a determination that the relation-
ship went beyond that of an independent contractor to an
employer-employee.
(b) Other Factors
Appellants contend additional factors weigh toward a deter-
mination that Johnson and M&D had an employer-employee
relationship: whether the one potentially employed is engaged
in a distinct occupation or business, the length of time for
which the one potentially employed is engaged, whether the
work is part of the regular business of the potential employer,
and whether the potential employer is or is not in business.15
To support this contention, appellants note M&D, Turbo Turtle,
and Johnson were engaged in the same business of transport-
ing goods; M&D was hired to transport the load in question by
Northern Ag, which believed M&D would be the sole carrier
of the loads; and M&D’s own drivers were transporting other
loads in the same order for Northern Ag. Appellants claim these
factors, when added to the cell phone calls and text messages
between M&D and Johnson and the exclusive language of the
Turbo Turtle agreements with M&D and Johnson, create an
issue of fact as to whether Johnson was an employee of M&D.
15
See Mays, supra note 9.
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Cite as 301 Neb. 977However, along with the analysis in the previous section,
these additional factors do not determine Johnson was M&D’s
employee. The fact that M&D had a trucking division as well
as a brokerage division is not determinative of an employer-
employee relationship. Johnson was in a distinct business from
M&D in that M&D operated a brokerage division within its
company utilizing outside drivers; Johnson was not exclusively
bound to M&D’s shipments and could take other work from
Turbo Turtle, including during harvesttime; and Johnson did
not use M&D’s equipment and leased the equipment from
Turbo Turtle instead. Johnson contracted with Turbo Turtle and
not M&D and had driven for Turbo Turtle for only approxi-
mately 30 days prior to the accident, a relatively short amount
of time. Additionally, while M&D did drive some of the
Northern Ag loads utilizing its own drivers, it was also com-
mon for M&D to dispatch outside companies and drivers for
the Northern Ag loads.
Considering all of the above, the record is insufficient
to create a genuine issue of material fact that the relation-
ship went beyond that of an independent contractor to an
employer-employee.
2. Liability as Independent
Contractor
Appellants next argue M&D would be liable for Johnson’s
negligence, even if Johnson were an independent contractor.
[13-15] Generally, one who employs an independent con-
tractor is not liable for physical harm caused to another by
the acts or omissions of the contractor or its servants.16 Our
case law has recognized four exceptions to the general rule.17
Specifically, a party contracting with an independent contrac-
tor can be liable for physical harm caused to another if (1) the
contracting party retains control over the contractor’s work, (2)
the contracting party is in possession and control of premises,
16
Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).
17
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Cite as 301 Neb. 977(3) a statute or rule imposes a specific duty on the contracting
party, or (4) the contractor’s work involves special risks or dan-
gers.18 We often refer to the latter three exceptions as involving
nondelegable duties.19 A nondelegable duty means that a con-
tracting party to an independent contractor, by assigning work
consequent to a duty, is not relieved from liability arising from
the delegated duties negligently performed.20
(a) Retention of Control
While M&D did not retain sufficient control over Johnson’s
work to subject M&D to liability for Johnson’s negligence as
an agent or employee, appellants allege that M&D retained
some control over the relevant work and that M&D is therefore
liable for a failure to exercise reasonable care in the use of
that control.21
[16-19] To fall within this exception to the general rule of
nonliability, the contracting party’s involvement in overseeing
the work must be substantial.22 Furthermore, that control must
directly relate to the work that caused the injury.23 In other
words, the key element of control must exist with respect to
the very thing from which the injury arose.24 To impose liabil-
ity, the contracting party must have (1) supervised the work
that caused the injury, (2) actual or constructive knowledge
of the danger that ultimately caused the injury, and (3) the
opportunity to prevent the injury.25
Appellants argue M&D acted in a supervisory role when
it assigned Johnson the load from Northern Ag, had actual
18
See id.19
See id.20
See id.21
See Restatement (Second) of Torts § 414 (1965).
22
See Gaytan, supra note 16.
23
See id.
24
See Cutlip v. Lucky Stores, 22 Md. App. 673, 325 A.2d 432 (1974).
25
See Gaytan, supra note 16.
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Cite as 301 Neb. 977and/or constructive knowledge that Johnson was unavailable
for driving under the hours-of-service requirements of FMCSA
and FMCSR,26 and had the opportunity to use a different driver
who was not in violation of those requirements but failed to
do so. Specifically, appellants point to the communication
between M&D and Johnson on August 27, 2014, where M&D
text messaged to cancel a load Johnson was carrying at 9:01
a.m., text messaged to dispatch him on a load from Nebraska
to North Dakota 30 minutes later, and communicated with
Turbo Turtle to dispatch Johnson on the load carried during
the accident at 11:43 p.m.
[20] The record does not support appellants’ contention that
M&D had sufficient supervision of Johnson’s work. Having
the right to control and supervise the work in this context
implies having the ability to oversee and direct the manner
in which the work that caused the injury is carried out.27 As
we have already concluded, M&D did not have control of
the method or means in which Johnson performed his work.
Furthermore, concerning the Northern Ag load specifically,
the text messages indicate that Johnson was provided, at that
time, with only the pickup, destination, and content details of
the load. The messages did not direct Johnson on the timing
of the load, the route, and what stops to make. Without more,
nothing in the record indicates that Johnson was required to
drive beyond the hours-of-service restriction and that M&D
had control and supervision of Johnson to direct him to make
such a violation.
(b) Control of Premises
Appellants argue M&D is liable as the party in posses-
sion and control of premises where physical harm is caused.
26
See 49 C.F.R. § 395.3(2) (2017).
27
Kime, supra note 4. See, also, Harris v. Velichkov, 860 F. Supp. 2d 970 (D.
Neb. 2012), affirmed sub nom. Harris v. FedEx Nat. LTL, Inc., 760 F.3d
780 (8th Cir. 2014); Gaytan, supra note 16.
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Cite as 301 Neb. 977Appellants allege M&D had a lease agreement with Turbo
Turtle and, as a result, was in control of Johnson and the truck
and trailer.
Under 49 C.F.R. § 376.2(e) (2016), a “lease” is defined
as “[A] contract or arrangement in which the owner grants
the use of equipment, with or without [a] driver, for a speci-
fied period to an authorized carrier for use in the regulated
transportation of property, in exchange for compensation.” In
addition, 49 C.F.R. §§ 376.12 and 376.22 (2017) require that
a lease contain the following provisions: provide the lessee
exclusive possession, control, and use of the equipment for
the duration of the lease and the lessee shall assume com-
plete responsibility for the operation of the equipment for
the duration of the lease; clearly specify the legal obligation
of the lessee to maintain insurance coverage for the protec-
tion of the public; and provide that control and responsibility
for the operation of the equipment shall be that of the lessee
from the time possession is taken until possession is returned.
Further, 49 C.F.R. §§ 376.11 and 376.22 (2017) provide spe-
cific requirements for the operation of a lease, including that
receipts are to be provided from the lessee to the lessor when
possession is taken, the equipment must be identified as being
operated by the lessee, and the equipment must carry a copy
of the lease.
This contract was not a lease agreement whereby M&D
was leasing Turbo Turtle’s drivers, trucks, and trailers when
it communicated a job. Here, Turbo Turtle and Johnson main-
tained control over the use of the truck and trailer. Turbo
Turtle was responsible for the equipment’s upkeep, insur-
ance, and signage, as well as the hiring of the drivers, and
Johnson and Turbo Turtle were free to coordinate the means
and manner in which they accomplished the loads M&D pro-
vided to them. Moreover, there was no evidence in the record
that either Turbo Turtle or Johnson received receipts when
M&D allegedly took possession of the equipment, that the
equipment displayed any identifying information that it was
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Cite as 301 Neb. 977being operated by M&D, or that Johnson carried a copy of
the contract.
Appellants cite to Plambeck’s deposition for the proposition
that the contract was a lease. During that deposition, Plambeck
made two comments regarding a lease agreement and indicated
that prior to the contract, M&D had two other agreements
with Turbo Turtle. The first contract he described as a “lease
agreement that M&D . . . used as a standard lease agreement
for any companies that [M&D] brokered loads to.” The second
contract he described as a “trailer lease” which allowed Turbo
Turtle to pull one of M&D’s trailers.
The record before us is void of the first contract of which
Plambeck testified. As a result, we cannot determine the terms
or conditions of that agreement and whether it would qualify
as a lease under FMCSA and FMCSR. Upon a question as to
whether the trailer lease was still in effect in 2014, Plambeck
stated that “I would call [the contract] a lease agreement too,
so which one do you mean?” Plambeck then testified that
Turbo Turtle’s right to lease a trailer from M&D continued on
an as-needed basis. The contract itself authorized Turbo Turtle
to lease one of M&D’s trailers. However, later in his deposi-
tion, Plambeck testified that none of the equipment involved in
the accident was being leased from M&D. Noting the failure
of the contract to comply with FMCSA and FMCSR require-
ments for a lease, Plambeck’s statement, without more, does
not imply that M&D treated the contract as a lease agreement
for Turbo Turtle’s drivers and equipment, nor does it make the
contract such a lease agreement.
(c) Statute or Rule
(i) Statutory Employer-Employee
Under FMCSA and FMCSR
Appellants argue FMCSA and FMCSR impose liability on
M&D, because Johnson was a driver being controlled exclu-
sively by M&D at the time of the accident and, as such,
Johnson was M&D’s statutory employee.
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Cite as 301 Neb. 977In support of their argument, appellants cite to several
definitions within the FMCSR. Specifically, 49 C.F.R.
§ 376.2(d)(2) which defines “owner” as someone “who, with-
out title, has the right to exclusive use of equipment,” and
49 C.F.R. § 390.5 (2017) which defines an “employer” as
someone “who owns or leases a commercial motor vehicle in
connection with [a business affecting interstate commerce]”
and “employee” as someone “employed by an employer” and
can include “an independent contractor while in the course
of operating a commercial motor vehicle.” Appellants claim
M&D had the right to exclusive use of Johnson and his equip-
ment, M&D had this right to exclusive use in connection with
its interstate trucking business, and, thus, Johnson was an
M&D employee under FMCSR, even if considered an inde-
pendent contractor.
However, appellants are incorrect in their claim that M&D
was the owner of the equipment. As analyzed above, Johnson
and his equipment were not exclusively controlled by M&D
at the time of the accident, Johnson’s equipment was owned
by Turbo Turtle who was responsible for its maintenance
and insurance, and the contract between M&D and Turbo
Turtle was not a lease agreement for that equipment. Because
M&D was not the owner of Johnson’s equipment and did not
lease Johnson’s equipment, M&D does not meet the defini-
tion of employer and Johnson does not meet the definition of
employee under FMCSA and FMCSR.
(ii) Motor Carrier Under
FMCSA and FMCSR
Appellants argue that FMCSA and FMCSR impose liability
on M&D, because M&D was the motor carrier of the Northern
Ag load. M&D, in turn, argues it was acting as a broker of
the load in question and, thus, did not have liability under
FMCSA and FMCSR.
[21,22] FMCSA and FMCSR generally require that a com-
mercial motor carrier operate only if registered and that such
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Cite as 301 Neb. 977registration requires proof of financial responsibility in order
to ensure collectability of a judgment against the motor car-
rier.28 This act and these regulations protect the public and
provide financial responsibility for motor carrier accidents by
creating a legal right and a duty to control vehicles operated
for the regulated motor carrier’s benefit.29
[23] The FMCSR, at 49 C.F.R. § 390.5, codified as Neb.
Rev. Stat. § 75-362(31) (Cum. Supp. 2014), defines “motor
carrier” as
a for-hire motor carrier or a private motor carrier. The
term includes a motor carrier’s agents, officers and rep-
resentatives as well as employees responsible for hiring,
supervising, training, assigning, or dispatching of drivers
and employees concerned with the installation, inspec-
tion, and maintenance of motor vehicle equipment and/
or accessories. . . . [T]his definition includes the terms
employer and exempt motor carrier.
For purposes of federal interstate transportation law, a “bro-
ker” means:
a person, other than a motor carrier or an employee or
agent of a motor carrier, that as a principal or agent
sells, offers for sale, negotiates for, or holds itself out by
solicitation, advertisement, or otherwise as selling, pro-
viding, or arranging for, transportation by motor carrier
for compensation.30
The FMCSR, at 49 C.F.R. § 371.2(a) (2017), distinguishes
motor carriers from brokers by stating:
Motor carriers, or persons who are employees or bona
fide agents of carriers, are not brokers within the meaning
28
See, 49 U.S.C. §§ 13901 and 13906 (2012 & Supp. V 2017); Harris, supra
note 27.
29
See, e.g., 49 U.S.C. § 14102(a)(4) (2012); Crocker v. Morales-Santana,
854 N.W.2d 663 (N.D. 2014); Tamez v. Southwestern Motor Transport,
Inc., 155 S.W.3d 564 (Tex. App. 2004).
30
49 U.S.C. § 13102(2) (2012). See, also, 13 C.J.S. Carriers § 87 (2017).
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Cite as 301 Neb. 977of this section when they arrange or offer to arrange the
transportation of shipments which they are authorized to
transport and which they have accepted and legally bound
themselves to transport.
As such, when distinguishing between a motor carrier and
a broker, the determinative question is whether the disputed
party accepted legal responsibility to transport the shipment.31
In arguing M&D was acting as a motor carrier on Johnson’s
Northern Ag load, appellants allege M&D was a licensed
motor carrier, M&D was Northern Ag’s exclusive point of
contact, Northern Ag identified M&D as the motor carrier on
internal documents, M&D solicited the loads from Northern
Ag for its own account, M&D directly dispatched Johnson, and
M&D had control over Johnson and his truck and trailer.
[24] Whether M&D was also a licensed motor carrier is
indeterminative to the question whether M&D was the motor
carrier for purposes of liability for Johnson’s negligence.
Instead, this question requires inquiry into M&D’s actions with
regard to the particular load at issue.32 A transportation com-
pany may have authority to act as a shipper, broker, or carrier,
and a court must focus on the specific transaction at issue—not
on whether the transportation company acts as a motor car-
rier in other transactions.33 At the time of the accident, M&D
had both a trucking and a brokerage division to its company
with separate licenses and insurance plans, while Turbo Turtle
was a licensed motor carrier with its own license and insur-
ance. M&D gave the load in question to Turbo Turtle and its
31
See Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292 (11th
Cir. 2018).
32
See, e.g., Mass v. Braswell Motor Freight Lines, Inc., 577 F.2d 665 (9th
Cir. 1978); Hewlett-Packard v. Brother’s Trucking Enterprises, 373 F.
Supp. 2d 1349 (S.D. Fla. 2005); Nipponkoa Ins. Co., Ltd. v. C.H. Robinson
Worldwide, Inc., No. 09 Civ. 2365(PGG), 2011 WL 671747 (S.D.N.Y. Feb.
18, 2011) (unpublished memorandum and order).
33
Harris, supra note 27.
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Cite as 301 Neb. 977driver. There is no evidence M&D instructed Johnson beyond
providing pickup and destination information. Johnson drove
Turbo Turtle’s truck and trailer, and Turbo Turtle’s signage
and motor carrier number were displayed on the equipment.
After the accident, the police report listed Turbo Turtle as the
motor carrier.
The fact that M&D held itself as Northern Ag’s exclusive
source of contact is insufficient to convert M&D into a motor
carrier under FMCSA and FMCSR.34 There is no requirement
under FMCSA and FMCSR that a broker cannot be the exclu-
sive source of contact for a transportation customer. The record
further demonstrates this is a normal practice of the trucking
industry. For example, Northern Ag was a freight brokerage
company that arranged loads for transport with customers to
whom M&D and other of Northern Ag’s brokers and carriers
had no direct contact.
Appellants contend that M&D solicited the loads from
Northern Ag for its own account and that, as a result, M&D
was a motor carrier for the load at issue. In support of their
contention, appellants rely on Schramm v. Foster 35 for the
holding that an entity may be treated as a motor carrier, as
opposed to a broker, if it engages in solicitation for its own
account. However, there was no evidence that M&D was
contractually obligated to transport the Northern Ag loads
exclusively and there was no evidence that M&D conveyed
to Northern Ag that it would be transporting the load itself.
In fact, a Northern Ag manager testified that on behalf of
Northern Ag, he solicited brokers as well as carriers to fill
shipping orders. In addition, Plambeck testified that Northern
Ag was aware that M&D was a brokerage company and that
M&D was using M&D drivers and also using brokered carri-
ers for Northern Ag loads. Plambeck also testified that M&D
34
See Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004).
35
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Cite as 301 Neb. 977never told Northern Ag that it would haul all of the offered
loads through M&D’s trucking division. As a result, there is no
evidence that M&D solicited the Northern Ag loads as a motor
carrier for its own account.
M&D did not directly dispatch Johnson on the load in ques-
tion. Instead, Northern Ag contacted M&D with the load infor-
mation, M&D communicated that information to Turbo Turtle,
and Turbo Turtle communicated that information to Johnson.
Johnson’s cell phone records indicate Turbo Turtle was the
one who contacted Johnson about the Northern Ag load, while
M&D had directly dispatched Johnson on a previous North
Dakota load. Johnson communicated with Turbo Turtle about
routes and stops but there was no evidence in the record estab-
lishing that Johnson communicated with M&D about the means
and method of the load. However, even if M&D had directly
dispatched Johnson on the Northern Ag load, such an action
would not determine M&D was a motor carrier. The text mes-
sages in which M&D instructed Johnson on the North Dakota
load and the text messages in which Turbo Turtle instructed
Johnson on the Northern Ag load provided only pickup and
destination information. The provision of such information is
consistent with the role of a third-party logistics company with
the responsibility of coordinating shipment of the freight rela-
tive to the customer’s needs.36
While relevant to the question of whether M&D legally
bound themselves to transport the Northern Ag loads, Northern
Ag listing M&D on the bill of lading and other pickup/dropoff
records is not dispositive evidence M&D was acting as the
motor carrier. The identification of a transportation company
as the “carrier” on the bill of lading does not prove that the
transportation company was in fact the carrier in this transac-
tion. In Schramm, the court found that a bill of lading pre-
pared by a third party, which identified the defendant as the
36
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Cite as 301 Neb. 977“carrier” of the load was insufficient to establish the defend­
ant’s carrier status, because the defendant played no role in
its preparation.37
In the instant matter, the record indicates that typically two
different documents were generated for each load shipped:
one by the customer when the load was picked up and one by
Northern Ag when the load was dropped off. Nothing in the
record indicates that M&D had any involvement in prepar-
ing either document. For the load involved in the accident,
only the pickup document was generated, because the load
was not dropped off. The pickup document listed M&D as
the carrier and was created by the customer. However, as
discussed above, when the load was picked up, the truck and
trailer displayed Turbo Turtle’s signage and carrier number.
M&D’s sign­ age and carrier number were not displayed on
the truck and trailer, and there is no evidence in the record
indicating that Johnson was carrying any sort of lease agree-
ment for M&D to use Turbo Turtle’s truck. As such, Turbo
Turtle’s involvement with the shipment would have been read-
ily apparent to the customer at the pickup location. Similarly,
the Northern Ag manager’s testimony that Northern Ag had no
knowledge M&D was assigning loads to Turbo Turtle does not
account for this readily apparent information from the dropoff
locations. When considering these factors in the context of the
entire record, Northern Ag’s internal records and its manager’s
testimony listing M&D as the motor carrier are insufficient on
their own to lead a reasonable trier of fact to determine M&D
was the carrier.
Appellants’ contention that M&D had control over Johnson
and his equipment fails to support a finding that M&D was a
motor carrier for the load in question. The record on appeal
does not indicate that M&D had exclusive control over Johnson
and his equipment. As analyzed above, the contract between
M&D and Turbo Turtle did not create or operate as a lease
37
Schramm, supra note 34.
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Cite as 301 Neb. 977agreement, Turbo Turtle was not required to make specific
drivers available to M&D, Johnson did not directly contract
with M&D, Johnson’s agreement with Turbo Turtle was that
he could drive only Turbo Turtle’s equipment for loads issued
by Turbo Turtle or M&D but there was no such restriction
if Johnson used other equipment, there was an exception
in the M&D and Turbo Turtle contract where Turbo Turtle
could drive outside loads for harvesttime, and Turbo Turtle
owned and was responsible for maintenance and insurance on
the equipment.
Based upon our review of the record, all of the above fac-
tors indicate that there is insufficient evidence to present a
genuine issue of material fact that M&D was the motor carrier
of the load at issue.
3. Negligent Hiring, Training,
or Supervision
Appellants argue that the district court erred in dismissing
their claim that M&D negligently hired, trained, or supervised
Johnson. Under this assignment, appellants contend that the
district court’s reasoning was tainted by its incorrect determi-
nation that M&D was a broker and not a motor carrier.
[25] We have previously held that an employer is subject
to liability for physical harm to third persons caused by the
employer’s failure to exercise reasonable care in selecting
an employee, even if such employee is an independent con-
tractor.38 However, as we determined above, the record fails
to provide sufficient evidence to present a genuine issue of
material fact that Johnson was M&D’s employee or that M&D
negligently hired, trained, or supervised Johnson.
[26] FMCSA and FMCSR require motor carriers to obtain
and maintain records on each of the drivers they employ, such
as driving and medical records.39 However, as we determined
38
Kime, supra note 4.
39
See 49 C.F.R. §§ 391.25 (2017) and 391.51(a) (2014).
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Cite as 301 Neb. 977above, the record also fails to provide sufficient evidence to
present a genuine issue of material fact that M&D was the
motor carrier of the load at issue and instead demonstrates
M&D was acting as a broker.
Thus, the district court did not err in dismissing appel-
lants’ claim that M&D negligently hired, trained, or supervised
Johnson.
4. Cross-A ppeal
Because we determine the district court did not err in grant-
ing M&D’s motion for summary judgment and dismissing
appellants’ claims, we need not address M&D’s cross-appeal
that the district court erred in failing to find appellants’ claim
of respondeat superior was barred by the settlement between
appellants, Turbo Turtle, and Johnson.
V. CONCLUSION
For the reasons stated above, there are no genuine issues
of material fact. M&D is entitled to a judgment as a matter
of law, because Johnson’s relationship with M&D was that
of an independent contractor; M&D did not have liability
under that independent contractor relationship for Johnson’s
negligence; and M&D was a broker of the load at issue and
not a motor carrier responsible for Johnson’s hiring, training,
or supervision. Thus, the district court did not err in granting
M&D’s motion for summary judgment and dismissing appel-
lants’ claims.
A ffirmed.