United States District Court,N.D. Indiana,Hammond Division.

NORTHERN INDIANA METALS, Plaintiff,

v.

IOWA EXPRESS, INC., and Gateway Freightways, Inc., Defendants.

No. 2:07-CV-414-PRC.

July 10, 2008.

OPINION AND ORDER

PAUL R. CHERRY, United States Magistrate Judge.

This matter is before the Court on a Motion for Sanctions Deeming Paragraph 10 and 13 of Plaintiff’s Complaint Admitted by Defendant Iowa Express, and Striking Four “Affirmative Defenses” [DE 27], filed by Plaintiff Northern Indiana Metals (“Northern Indiana”) on April 29, 2008. On May 13, 2008, Defendant Iowa Express, Inc. (“Iowa Express”) filed a response, and on May 20, 2008, Northern Indiana filed a reply. For the following reasons, the Court grants the Motion in part and denies it in part.

BACKGROUND

On November 26, 2007, Northern Indiana filed its Complaint against Defendants, alleging that they are liable for a missing shipment of brass. Northern Indiana asserts diversity jurisdiction under 28 U.S.C. § 1332 and/or federal question jurisdiction under 28 U.S.C. § 1331 pursuant to 49 U.S.C. § 14706 (the Carmack Amendment). According to the Complaint, Northern Indiana sold 39,996 pounds of brass, worth $130,181.38, to Olin Brass Corp., located in East Alton, Illinois. Northern Indiana hired Gateway Freightways, Inc. (“Gateway”) to arrange for the transportation of the brass. Gateway selected Iowa Express as the common   carrier to transport the load. On April 23, 2007, a driver arrived at Northern Indiana in a vehicle marked “Iowa Express.” After the brass had been loaded on the vehicle, the vehicle departed. The shipment never arrived at Olin Brass Corp.’s facility in East Alton, Illinois, and has not been located or recovered.

Northern Indiana alleges that the brass sold consisted of 16,618 pounds of 260 brass and 23,378 pounds of 110 brass.

On January 28, 2008, Iowa Express filed an Answer and Affirmative Defenses to Plaintiff’s Complaint. Iowa Express denies any involvement in the April 23, 2007 pick-up.

ANALYSIS

In the instant Motion, Northern Indiana requests that the Court enter an Order deeming the allegations in Paragraphs 10 and 13 of the Complaint admitted. Northern Indiana contends that Iowa Express’ responses to the Paragraphs are inadequate. In response to Paragraph 10, Iowa Express avers that a bill of lading shipping document “speaks for itself,” and in response to Paragraph 13, Iowa Express contends that the paragraph calls for a “legal conclusion to which no response is required.”Answer ¶¶ 10, 13. Additionally, Northern Indiana requests that the Court strike Iowa Express’s affirmative defenses, which Iowa Express refers to as “Legal Paragraphs,” because they are “neither proper affirmative defenses nor listed by the Federal Rules of Civil Procedure as permissible Affirmative Defenses.”Pl.’s Br. at 5.

In response, Iowa Express first argues that the Motion fails to comply with Local Rule 7.1 because it requests multiple forms of relief in a single motion. In response to Northern Indiana’s request to deem the allegations in Paragraphs 10 and 13 of the Complaint admitted, Iowa Express asks that the Court grant it leave to replead its answers to those Paragraphs. In response to Northern Indiana’s request that the Court strike the Legal Paragraphs, Iowa Express argues that Northern Indiana’s request is untimely because it was made after the 20-day time limit to object to pleadings. However, Iowa Express concedes that Legal Paragraphs # 1, # 3, and # 4 are improper.

A. Local Rules

In its response, Iowa Express contends that Northern Indiana combined two separate motions under cover of a single motion and, pursuant to the Local Rules, the Motion should be disregarded in its entirety. Local Rule 7.1 of the Local Rules of the United States District Court for the Northern District of Indiana provides, “[e]ach motion shall be separate; alternative motions filed together shall each be named in the caption on the face.”N.D. Ind. L.R. 7.1(b). Here, the instant Motion is captioned: “Motion for Sanctions Deeming Paragraph 10 and 13 of Plaintiff’s Complaint Admitted by Defendant Iowa Express, and Striking Four ‘Affirmative Defenses.’ “ The caption expressly requests two separate forms of relief. Those are the only forms of relief requested in the body of the instant Motion. Thus, Northern Indiana’s Motion complies with Local Rule 7.1(b) and Iowa Express’ argument is without merit.

B. Responsive pleading requirements

Turning to the substance of the Motion, Northern Indiana contends that two paragraphs of Iowa Express’ Answer fail to meet the pleading requirements of Rule 8(b) and requests that the Court deem the allegations in the corresponding paragraphs of the Complaint admitted. Iowa Express contends that deeming the corresponding paragraphs of the Complaint admitted is too harsh a penalty.

Rule 8(b) of the Federal Rules of Civil Procedure controls a response to a complaint and provides:

A party must … state in short and plain terms its defenses to each claim asserted against it … and admit or deny the allegations asserted against it by an opposing party…. A denial must fairly respond to the substance of the allegation. A party that intends in good faith to deny all the allegations of a pleading-… may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted…. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest…. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial…. An allegation-other than one relating to the amount of damages-is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

Fed.R.Civ.P. 8(b).Rule 8(b) thus requires a defendant to plead one of three alternatives in response to the allegations in a complaint: (1) an admission, (2) a denial, or (3) an averment that the party lacks knowledge or information sufficient to form a belief as to the truth of the averment. See id.

1.  “The document speaks for itself  ”

Northern Indiana requests that the Court deem Paragraph 10 of the Complaint admitted because Iowa Express’ response to that Paragraph neither admits, denies, or avers a lack of sufficient knowledge, nor could it be reasonably construed to do so. Paragraph 10 of the Complaint sets forth an alleged description of a bill of lading for the missing brass shipment. Iowa Express responded to Paragraph 10 by representing that “the documents referenced in Paragraph 10 speak for themselves.”Answer at ¶ 10.

District courts within the Seventh Circuit have consistently found that a responsive pleading indicating that a document “speaks for itself” is insufficient and contrary to the Federal Rules of Civil Procedure. See Donnelly v. Frank Shirey Cadillac, Inc., No. 05-C-3520, 2005 WL 2445902, at(N.D.Ill. Sept. 29, 2005) (a party may not respond to allegations in a complaint by asserting that a document “speaks for itself”); Bankske v. Tarka, No. 02-C-7359, 2003 WL 23149, at * 1 (N.D.Ill. Jan. 2, 2003) (“several assertions … that a document ‘speaks for itself’ are … not permissible responses”); State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D.Ill.2001) (finding that a party may not respond to allegations about the contents of a document by representing that the “document speaks for itself”). However, imprecisely answering that a document “speaks for itself” may be made clear if contained within the context of an enlarged, clear, coherent response. See McGrath v. Godshalk, No. 07 CV 34, 2007 WL 2746865, at * 12 (N.D.Ind. Sept. 18, 2007) (holding that a response that a document “speaks for itself” is sufficient when used as part of a larger explanation).

Here, Iowa Express defends its response by arguing that it “intended to deny the Plaintiff’s characterization of the document in the Complaint … evidenced by the fact that [it] … denied that the load at issue was delivered to an Iowa Express vehicle …” Def.’s Resp. Br. at 3. The piece of evidence that Iowa Express contends speaks for itself, the bill of lading signed by both the shipper and the carrier, is an important piece of evidence in this case. Iowa Express’ response that the document speaks for itself could either be interpreted as an admission or denial and does not directly respond to the allegations in the Complaint. Further, Iowa Express’ responses in the surrounding paragraphs of its Answer do not resolve this confusion. In the surrounding paragraphs, Iowa Express denies certain allegations and contends that it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations. These responses do not aid the Court’s interpretation of the response to Paragraph 10. As a result, Defendant’s answer to Paragraph 10 is insufficient.

While the response is insufficient, the Court does not grant Northern Indiana’s request that the Paragraph be deemed admitted. Rather, in the interest of resolving this case based on the merits, Iowa Express must amend its Answer so as to comply with Rule 8(b).

2.  “Legal conclusion  ”

Northern Indiana requests that the Court deem Paragraph 13 of the Complaint admitted because Iowa Express’ response to the Paragraph neither admits, denies, or avers a lack of sufficient knowledge, nor could it be reasonably construed to do so. Paragraph 13 alleges that the Carmack Amendment was in effect at all relevant times. Iowa Express’ Answer to Paragraph 13 provides that the Paragraph “calls for legal conclusion to which no response is required.”Answer at ¶ 13.

District courts within the Seventh Circuit considering whether a response that an allegation “is a legal conclusion” is sufficient have found that the response is insufficient and contrary to the Federal Rules of Civil Procedure. See Donnelly, 2005 WL 2445902, at(quotation and citations omitted) (“Refusing to answer an allegation because it calls for legal conclusions ‘flies in the face of the established doctrine that legal conclusions are a proper part of federal pleading, to which Rule 8(b) also compels a response’ ”).

Iowa Express’ averment that Paragraph 13 calls for a legal conclusion to which no response is required does not meet Rule 8(b)’s requirements. Iowa Express must amend its response to Paragraph 13 in compliance with Rule 8(b).

C. Affirmative defenses

Northern Indiana next argues that Iowa Express submitted four improperly pleaded affirmative defenses and requests that the Court strike those defenses. The Court notes that Iowa Express titles its affirmative defenses: “Legal Paragraphs # 1-# 4.” In response to Northern Indiana’s argument, Iowa Express contends that the Motion to Strike is not timely under Rule 12(f). Responding to the substance of Northern Indiana’s argument, Iowa Express concedes that Legal Paragraphs # 1, # 3, and # 4 are improper and that the Court should strike those arguments. As to Legal Paragraph # 2, Iowa Express contends that it is proper.

Federal Rule of Civil Procedure 12(f) governs a motion to strike and provides, in relevant part:

[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: … on its own; or … on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading.

Fed.R.Civ.P. 12(f). Because a motion to strike can be used as a vehicle for delay, “it is generally not favored, is viewed as a ‘drastic’ remedy, and is infrequently granted.”Midland Nat’l Life Ins. Co. v. Ash Fin. Holdings Group, Inc., No. 1:06-CV-00066, 2006 WL 2290912, at * 1 (N.D.Ind. Aug. 8, 2006) (citations omitted). Affirmative defenses should not be stricken “ ‘if they are sufficient as a matter of law or if they present questions of law or fact.’ “  Spearman v. Tom Wood Pontiac-GMC, Inc., No. IP-00-1340, 2000 WL 33125463, at * 1 (S.D.Ind. Dec. 22, 2000) (quoting Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir.1989)). “The decision whether to strike material under Rule 12(f) is within the discretion of the district court.”  Midland Nat’l Life Ins. Co., 2006 WL 2290912, at(citing Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir.1992)).

Here, Iowa Express filed a responsive pleading on January 28, 2008. Northern Indiana received immediate notification of the filing through the Court’s electronic filing system. Northern Indiana did not file the instant Motion until April 29, 2008, approximately 90 days after Iowa Express filed its Answer. Thus, pursuant to Rule 12(f), Northern Indiana’s Motion to Strike Iowa Express’ affirmative defenses is not timely. However, Rule 12(f) also allows for a court to act on its own outside the twenty day time limit and strike a pleading if a defense is insufficient or if any material contained therein is redundant, immaterial, impertinent, or scandalous. SeeFed.R.Civ.P. 12(f)(1). Acting on its own behest, and pursuant to Rule 12(f)(1), the Court will now conduct an analysis of the substance of Iowa Express’ Answer.

Because Iowa Express concedes that Legal Paragraphs # 1, # 3, and # 4 are improper and should be stricken, the Court strikes those defenses. With regard to Legal Paragraph # 2, Northern Indiana asks that the Court strike the defense because it is not a statutorily recognized defense. In Legal Paragraph # 2, Iowa Express alleges that Northern Indiana was contributorily negligent and is at least partially responsible for any damages it suffered as a result of the missing brass shipment.

The analysis of liability under the Carmack Amendment is a burden shifting consideration. First, the plaintiff must show (1) delivery in good condition; (2) arrival in damaged condition; and (3) the amount of damages. Allied Tube & Conduit Corp. v. Southern Pacific Transp. Co., 211 F.3d 367, 369 (7th Cir.2000). If the plaintiff makes its showing, the burden of production then shifts to the carrier (party contracted to perform transportation services) to show that it was not negligent and that the damage to the goods was caused by an act of God, a public enemy, an act of the shipper himself, a public authority, or the inherent vice or nature of the goods. See id. at 369-70;Mach Mold Inc. v. Clover Assoc., Inc., 383 F.Supp.2d 1015, 1030 (N.D.Ill.2005).

Here, Iowa Express argues that the loss alleged by Northern Indiana was caused by Northern Indiana’s own negligence, or at least that Northern Indiana’s negligence contributed to the loss. Northern Indiana argues that Iowa Express’ contributory negligence defense is a state common law defense not recognized by the Carmack Amendment. However, pleading that acts of the shipper brought about the loss is a recognized statutory defense. See383 F.Supp.2d at 1030. Here, Iowa Express alleges that Northern Indiana, the shipper, contributed to the loss, and thus has pleaded a recognized defense. Accordingly, this Court denies Northern Indiana’s Motion to Strike Legal Paragraph # 2. Iowa Express, in its response, requests leave to replead and rephrase Legal Paragraph # 2. The Court grants the request.

CONCLUSION

Having considered the Motion and applying the relevant standards, the Court hereby DENIES IN PART AND GRANTS IN PART the Motion for Sanctions Deeming Paragraph 10 and 13 of Plaintiff’s Complaint Admitted by Defendant Iowa Express, and Striking Four “Affirmative Defenses” [DE 27]. The Court DENIES Northern Indiana’s request that Paragraphs 10 and 13 of its Complaint be deemed admitted. The Court ORDERS that Iowa Express file an Amended Answer as to Paragraphs 10 and 13 of Northern Indiana’s Complaint on or before July 24, 2008.The Court GRANTS Northern Indiana’s request to strike Legal Paragraphs # 1, # 3, and # 4 and hereby STRIKES those affirmative defenses. The Court DENIES Northern Indiana’s request to strike Legal Paragraph # 2. The Court ORDERS that Iowa Express file an Amended Answer as to Legal Paragraph # 2 on or before July 24, 2008.

SO ORDERED.

Court of Appeals of Georgia.

CLARENDON NATIONAL INSURANCE COMPANY, et al.

v.

JOHNSON.

No. A08A0119.

July 11, 2008.

SMITH, Presiding Judge.

Clarendon National Insurance Company (“Clarendon”), American Trans-Freight, LLC, ATF Trucking, LLC, and ATF Logistics, LLC appeal from a jury verdict in favor of Brent Johnson in this personal injury case arising out of an accident involving a commercial box truck.Appellants assert that the trial court erred: (1) by denying their motions for directed verdict and judgment notwithstanding the verdict on the issues of vicarious liability and stubborn litigiousness; (2) by admitting into evidence a contract and a bill of lading; and (3) in its charge to the jury. For the reasons set forth below, we reverse.

The standard of review

for granting motions for directed verdict and for j.n.o.v. is the same. They may be granted only when no conflict exists in the evidence and the evidence presented, with all reasonable inferences therefrom, demands a particular verdict. On appellate review of the denial of either motion, we construe the evidence in the light most favorable to the verdict and resolve any doubts or ambiguities in favor of the verdict.

American Assoc. of Cab Companies v. Parham, 291 Ga.App. 33, 661 S.E.2d 161 (2008).

The record shows that on August 28, 2003, Robert Wesley Carnley crossed into the opposite lane of travel and collided with a pick-up truck driven by Johnson when Carnley was unable to stop behind a car that had stopped in an intersection. Carnley told a police officer after the accident that “he was running too fast to stop.”Carnley admitted liability at trial and testified that the accident happened when he “rounded a curve and the sunlight was in my eyes and cars stopped in the road and I just misjudged.”Carnley is legally blind in his right eye and did not possess a commercial driver’s license at the time of the accident. Johnson’s injuries from the accident included “fairly severe fracture dislocations” of his left leg that required multiple surgeries to repair and resulted in permanent partial disability.

At the time of the accident, Carnley was hauling a shipment of carpet bound for California under an interstate bill of lading. C & C Motor Freight hired Carnley to pick up the carpet in Calhoun, Georgia and take it to C & C’s warehouse in Chatsworth, Georgia, where the carpet shipment would be consolidated with other shipments. Wesley Carnley’s father (Robert Carnley) and stepmother (Colleen Carnley) owned and operated C & C Motor Freight. Robert and Colleen Carnley denied that Wesley Carnley was an employee of C & C, claiming instead that he was an independent contractor. Wesley Carnley owned the truck he was driving at the time of the accident.

C & C acted as an independent sales agent under a written contract with American Trans-Freight, LLC, ATF Trucking, LLC, and ATF Logistics, LLC. The agreement specified that the three entities with whom C & C contracted would collectively be referred to in the agreement as “ATF.” The agreement contained the following relevant provisions:

WHEREAS, ATF is a motor   carrier in interstate commerce with certified authority to transport general commodities and desires to appoint agent to act as its independent sales agent in the solicitation of such transportation service business and to arrange for the movement by ATF of such freight, and agent desires to act as such agent.

NOW THEREFORE, it is mutually agreed between the parties as follows:

1. Designation of Agent.ATF does hereby designate and appoint agent and agent does hereby consent and agree to act as an independent sales agent for ATF in soliciting from the public, general commodities freight originating at various points throughout the United States, the same to be transported by ATF in its business as an authorized motor   carrier of freight in interstate commerce or pursuant to ATF’s brokerage authority…. If the agent brokers a load to another carrier, it is agent’s responsibility to make sure that the carrier has adequate insurance (without sub-limits) to cover the full cargo value of the load. If there is a loss on a load and carrier does not have adequate insurance to reimburse ATF or shipper for the loss, the agent will be held responsible for the deficiency.

2. Duties of Agent.Agent will diligently and faithfully serve ATF as an independent sales agent for the term of this agreement utilizing agent’s best efforts and abilities to the extent reasonably required. Agent agrees that all freight agent solicits will be exclusively on behalf of ATF and shall be first presented to ATF for acceptance, and if so accepted agent will make all necessary and customary arrangements for the movement of such freight. Agent promises and agrees to comply with all rules and regulations promulgated by ATF, from time to time, relating to the performance as an agent of ATF, including rates and terms for transportation services to be provided by ATF.

3. Independent Contractor Relationship.With respect to all matters relating to this agreement, agent shall be deemed to be an independent contractor and shall bear its own expenses in connection with this agreement. Agent has sole responsibility of the day-to-day operation of its business operations and full control and direction of agent’s employees. Agent shall not represent itself or its organization as having any relationship to ATF other than that of an independent agent for the limited purposes described in this agreement.

…

7. Settlement of Commissions.Agent shall be paid weekly based upon a settlement sheet listing all loads for which adequate paperwork to complete the billing has been received by ATF’s corporate offices…. All billing of customers will be done through ATF’s corporate offices in Morrisville, Pennsylvania in accordance with ATF’s then current billing practices.

8. Agent agrees to protect, indemnify and hold ATF harmless from any claims arising as a result of agent’s performance of its duties and against all losses, direct or consequential damages, costs, expenses, including reasonable attorneys’ fees, that may be suffered or incurred by ATF as a result of agent’s negligence in performing or failing to perform any of the services or obligations on the part of the agent to be performed pursuant to the terms of this agreement.

An ATF representative explained that agents for ATF “offer trucking services to customers in their area that they control and trucks they controlled.”This representative acknowledged that agents would use ATF’s motor   carrier authority if they did not have their own.

Robert Carnley testified that C & C initially operated as a registered motor   carrier with its own DOT number until it “changed over to American Trans-Freight.” Al Pinion, “a business development salesman,” of ATF contacted Robert Carnley about leasing his trucks to ATF. Pinion’s job included “hunting companies to lease on.” Company trucks owned by C & C were leased to ATF. Evidence introduced at trial showed that throughout C & C’s relationship with ATF, trucks owned by C & C hauled and operated solely “under ATF’s authority as an interstate carrier.”Evidence also showed, however, that C & C paid two drivers cash to pick up shipments who were not driving C & C owned or leased trucks.

Colleen Carnley testified that when she placed a shipment with a carrier leaving C & C’s warehouse, she was required to check “on our computer database that we have with ATF to see if they’re an approved carrier through ATF…. ATF has to have the proper paperwork on them for us to use them to haul a load.”Other motor   carriers“had to be approved through ATF. We had to send their paperwork and get their approval and they would get a code.”According to Colleen Carnley, they could not  “deal” with other motor   carriers of their choosing while they “were under contract with ATF.” An ATF representative denied that it exercised any control over what motor   carriers C & C could use to haul shipments.

ATF representatives were aware that C & C picked up freight to be consolidated in C & C’s warehouse. ATF’s director of safety and compliance knew that independent agents of ATF who did not have their own motor   carrier authority operated under ATF’s motor   carrier authority. ATF representatives also knew that C & C did not have its own motor   carrier authority “from the time they signed on with ATF.”

Colleen Carnley testified that ATF Logistics handled the billing for C & C’s operations. All bills were submitted to ATF Logistics, who in turn billed the various parties involved. When the parties paid ATF Logistics, ATF Logistics then paid C & C. She testified that she paid Wesley Carnley in cash or through a C & C company check and denied billing his charges to anyone else.

All of the Carnleys denied that Wesley Carnley had leased himself or his truck to any ATF defendant at the time of the accident. There is no evidence in the record that ATF had actual knowledge that C & C hired Carnley to pick up loads in Georgia that were designated for delivery out-of-state. Carnley paid for all needed fuel and repairs for his truck. The truck did not have a company name, logo, sign or DOT numbers displayed on it. Colleen Carnley testified that she had no contact with ATF when she asked Wesley Carnley to pick up the load involved in the accident.

The only bill of lading for the load carried by Carnley at the time of the accident listed the carrier as “C & C/ATF.” This document was prepared by the entity requesting shipment of the goods, not C & C or ATF.

Following the accident, Johnson sued Robert Wesley Carnley, Robert Darrell Carnley, Colleen Carnley, C & C Motor Freight, Inc., the three ATF defendants, and ATF’s insurer, Clarendon. The ATF defendants asserted a cross-claim against the Carnleys and C & C “for indemnity and contribution by law and contract.”

The insurance carrier for the Carnleys and C & C settled with Johnson for $100,000 before trial. Following a trial, the jury found against the three ATF defendants, Clarendon, and Wesley Carnley in the amount of $2,345,940.17. It also found in favor of the ATF defendants on their cross-claim against C & C and the Carnleys in the amount of $539,566.25.

1. Appellants assert that the trial court erred by denying their motion for directed verdict on the issue of vicarious liability. We agree.

(a) Appellants first argue that they cannot be held vicariously liable because they are not statutory employers under the Federal Motor   Carrier Safety Regulations (“FMCSR”) as a matter of law. See 49 USC §§ 31101 et seq. and 49 CFR § 391.1 et seq.“Statutory employment is a theory of vicarious liability created by the FMCSR.”Omega Contracting v. Torres, 191 S.W.3d 828, 848 (Tex.App.2006).

The regulations pertinent to this issue follow:

Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle)….49 CFR § 390.5.

Employer means any person engaged in a business affecting interstate commerce who owns or leases a commercial vehicle in connection with that business, or assigns employees to operate it….49 CFR 390.5.

The parties agree that the statutory employer issue in this case centers around whether any ATF defendant leased the truck driven by Wesley Carnley at the time of the accident. As there was no written lease agreement between Carnley and any ATF defendant, we must determine whether an oral lease agreement can be implied from the record before us. See 1-7 Law of Commercial Trucking  § 7.16, n. 257 (“there is authority for the proposition that liability may attach to the carrier-lessee, even in the absence of a written trip lease”).

Based on the record before us, we cannot find any evidence to support the conclusion that Wesley Carnley leased himself or his truck to an ATF defendant for the trip involved in the accident. All of the Carnleys, as well as ATF representatives, denied that ATF leased Wesley Carnley’s truck or his services as a driver. ATF had no knowledge about C & C’s use of Wesley Carnley to transport goods to C & C’s warehouse for consolidation and certainly had no contact with Wesley Carnley about the trip resulting in the accident. As a result, we find that the appellants were entitled to a directed verdict in their favor on the issue of statutory employment. Caballero v. Archer, 2007 WL 628755, 2007 U.S. Dist. LEXIS 12271 (W.D.Tex.2007) (finding no evidence of any oral or written lease agreement).

In so holding, we note that an oral lease cannot be inferred from the fact that one of the ATF defendants held DOT authority to act as a motor   carrier and could have entered into a lease. See id.Likewise, the fact that a third party listed “C & C/ATF” as the motor   carrier on the bill of lading does not provide competent evidence of an oral lease. Cf. Schramm v. Foster, 341 F.Supp.2d 536, 549 (D.Md. 2004) (identification of party as carrier on bill of lading prepared by third party without any involvement by carrier does not prove party was carrier for trip).

(b) Appellants also assert that they were entitled to a directed verdict on Johnson’s claim that they are vicariously liable for C & C’s negligent hiring of Wesley Carnley. We agree.

OCGA § 51-2-4 provides that “an employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.”In order to impose liability

the employer must have retained some degree of control over the manner in which the work was done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, as to operative details. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

(Citations and punctuation omitted.) Slater v. Canal Wood Corp., 178 Ga.App. 877, 880(1), 345 S.E.2d 71 (1986).

The agreement between the ATF defendants and C & C provided that C & C was an independent contractor with “sole responsibility of the day-to-day operation of its business operations and full control and direction of [C & C]’s employees.” While ATF may have required C & C to use “approved”  motor   carriers, retention of this general right, without more, did not alter C & C’s status as an independent contractor.

ATF did not know that Colleen Carnley hired her stepson to transport a load of carpet to C & C’s warehouse for consolidation on the day of the accident, and no evidence presented at trial demonstrated that any ATF defendant exercised control over the day-to-day operations of C & C. Based on this lack of evidence, the trial court erred by denying appellants’ motion for directed verdict. See McLaine v. McLeod, 291 Ga.App. 335, 661 S.E.2d 695 (2008) (freight broker not liable for negligence of motor   carrier and its employee driver because they were independent contractors).

(c) A theory of vicarious liability based upon a joint venture between C & C and the ATF defendants also fails to support the verdict against ATF. Vicarious liability for the conduct of another party to a joint venture cannot be established without demonstrating a right by each member of the joint venture to direct and control the conduct of the other. Rossi v. Oxley, 269 Ga. 82, 83(1), 495 S.E.2d 39 (1998). In this case, the crucial element of mutual control is absent. Id.

(d) While we are constrained to find under existing law that ATF cannot be held vicariously liable for Johnson’s injuries, we are troubled by the result in this case. As one commentator has noted, third party participation in the movement of interstate freight by freight brokers and logistics companies has increased while administrative oversight has diminished. James C. Hardman, Third Party Surface Transportation-Common Issues and Recent Trends: Third Party Contract Issues Concerning Motor   Carriers, Brokers, and Shippers, 34 Transp. L.J. 307-308 (Fall 2007). In this case, the federal regulations simply do not provide a mechanism for Johnson, an injured member of the public, to recover adequate compensation for his injuries. See Schramm, supra, 341 F.Supp.2d at 553 (noting that this is an area “in which the law may have to catch up” and encouraging regulators to act). We cannot, however, allow our sympathy for the plight of those injured by commercial trucks to lead us toward imposing strict liability on a party that does not possess the requisite degree of control over another’s conduct. Resolution of this public policy issue lies with the legislative branch of our government, not the judicial.

2. Because no evidence supports Johnson’s underlying claim against appellants, appellants are entitled to judgment notwithstanding the verdict on Johnson’s claim for attorney fees under OCGA § 13-6-11. See, e.g., United Companies Lending Corp. v. Peacock, 267 Ga. 145, 147(2), 475 S.E.2d 601 (1996) (award of damages on the underlying claim prerequisite to any award of attorney fees under O.C.G.A. § 13-6-11).

3. Appellants remaining enumerations of error are rendered moot by our holdings in Divisions 1 and 2.

Judgment reversed.

MIKELL and ADAMS, JJ., concur.

A “commercial motor vehicle” is “any self-propelled … motor vehicle used on a highway in interstate commerce to transport … property … when the vehicle” weighs more than 10,000 pounds. 49 CFR 390.5. There is no dispute that the truck at issue in this case weighed 26,000 pounds.

The agreement contained no provisions relating to liability insurance.

Evidence submitted at trial showed that, at the time of the accident, only ATF Trucking, LLC was an authorized motor   carrier. ATF Logistics, LLC “was a licensed property broker” and “American Trans-Freight, LLC, [wa]s a brand with neither operating authority of trucks or brokerage.”As a broker, ATF Logistics “arrange[d] for the transportation of property for others and guarantee[d]” payment for the interstate trucking companies used to transport shipments.

Compensatory damages totaled $1,742,845.70, attorney fees totaled $580,948.57, and expenses totaled $22,145.90. The defendants were given a $100,000 set-off for the previous settlement.

Compare OCGA § 51-2-5 (delineating exceptions to the general rule, none of which apply here).