In cases where you have a commercial carrier or driver responsible for a crash that injures or kills other drivers, do not overlook the area of broker liability. Broker liability provides an additional source of revenue in a lawsuit, as well as broker’s insurance. By examining this aspect of a case, you can help your client receive the maximum recovery for his or her injuries and losses.
When evaluating an 18-wheeler crash, remember there are several factors working in tandem:
• The product / load that must be delivered;
• The truck that carries the load, and its driver;
• A broker or brokerage company that matches the trucking company to the load.
About 40 percent of truck accidents involve a broker of the cargo. The question when that occurs is whether the broker is liable for the loss in your case. Most brokers believe that they cannot be considered a carrier because they do not own or lease trucks. That belief is simply wrong.
The Federal Motor Carrier Safety Act at 49 U.S.C.A § 301 et seq., makes no such requirement. Likewise, a broker, who also has motor carrier authority, cannot guarantee delivery of a load and still maintain its status as a broker. A broker who is also authorized as a motor carrier runs a significant risk when it guarantees the load under 49 C.F.R. § 371.2.
There may be liability on the broker or shipper for their own conduct. The general rule is that a party is not liable for the negligence of its independent contractors.
One exception is that a broker may be liable for the negligent hiring of the motor carrier. Restatement Second of Torts § 411 provides that shippers and brokers are liable for “physical harm to third persons caused by failure to exercise reasonable care employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the party owes to third persons.”