2021 WL 5283974

United States District Court, E.D. Louisiana.
Wayland COLLINS, et al.
v.
John C. BENTON, et al.
CIVIL ACTION NO. 18-7465
|
Signed 11/12/2021
Attorneys and Law Firms
Vanessa Motta, Motta Law, LLC, New Orleans, LA, for Wayland Collins, Alvin Polk.
Morgan J. Wells, Jr., Evan J. Godofsky, Larzelere, Picou, Wells, Simpson, Lonero, LLC, Kristina Junot Fonte, Blue Williams, L.L.P., Metairie, LA, for Mark Ingle, Northland Insurance Company, John C. Benton.
Morgan J. Wells, Jr., Evan J. Godofsky, Larzelere, Picou, Wells, Simpson, Lonero, LLC, Metairie, LA, for Innovative Transport Solution, Inc., Automotive Transport Services, Inc.

SECTION: “G”(5)

ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, CHIEF JUDGE
*1 This action arises from an alleged motor vehicle collision in the Parish of Orleans, State of Louisiana.1 Before the Court is Plaintiffs Wayland Collins and Alvin Polk (collectively, “Plaintiffs”) “Motion for Adverse Inference on Spoliation of Evidence.”2 Defendants Mark Ingle, John C. Benton d/b/a Q&M Motor Transports, Innovative Transport Solution, Inc., Automotive Transport Services, Inc., and Northland Insurance Co.’s (collectively, “Defendants”) oppose the motion.3 Considering the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court denies the motion.

I. Background
On August 7, 2018, Plaintiffs filed a complaint against Defendants Mark Ingle (“Ingle”), John C. Benton d/b/a Q&M Motor Transports (“Q&M”), and Northland Insurance Co. (“Northland”) in this Court, seeking recovery for injuries and property damage that Plaintiffs allegedly sustained in an automobile accident.4 According to the Complaint, on August 9, 2017, Plaintiff Wayland Collins was operating a vehicle on Interstate 10 when, while exiting onto Interstate 510, he collided with an 18-wheeler driven by Ingle.5 Plaintiffs allege that Ingle was turning onto Interstate 510 and negligently misjudged his clearance, resulting in the motor vehicle incident at issue.6 Plaintiffs additionally allege that Ingle was cited for an “improper lane change.”7 Plaintiffs bring negligence claims against Ingle and Q&M, who is allegedly Ingle’s principal, under the doctrine of respondeat superior.8 Plaintiffs also bring claims against Northland, who purportedly insured the 18-wheeler operated by Ingle.9

On November 8, 2021, Plaintiffs filed the instant “Motion for Adverse Inference on Spoilation of Evidence.”10 Defendants filed an opposition on November 9, 2021.11

II. Parties’ Arguments

A. Plaintiffs’ Arguments in Support of the Motion
Plaintiffs move the Court to find that they are entitled to an adverse inference against Defendants and to instruct the jury that they can presume Ingle was intoxicated at the time of the accident.12 In support, Plaintiffs aver that § 382.303 of the Federal Motor Carrier Safety Administration Regulations (“FMCSA”) require a commercial trucking company to “perform an alcohol test within (2) hours of [a] collision and a drug test within (32) hours of [a] collision.”13 Plaintiffs assert that these tests are required “when a driver was given a citation at the scene and a party went to the hospital from the scene.”14 Plaintiffs contend that, because Ingle was given a citation and Candy Kelly was taken to the hospital, Ingle was required to submit to alcohol and drug testing.15

*2 Plaintiffs also assert that Defendants incorporated these requirements into their policies and procedures.16 Plaintiffs aver that Defendants’ policy states that “any employee who does not undergo the mandatory drug testing will be presumed [to have produced] a positive result and will be terminated from their employment.”17 Plaintiffs assert that Q&M terminated Ingle’s employment because he was allegedly “no longer insurable.”18

Plaintiffs assert that Ingle did not submit to a drug or alcohol test.19 Plaintiffs assert that “Ingle lied and withheld information about the facts and circumstances of this accident in order to avoid having to undergo drug and alcohol testing.”20 Specifically, Plaintiffs allege that Ingle lied to his supervisor by not telling him that Ingle received a citation or that Candy Kelly was transported to the hospital.21 As a result, according to Plaintiffs, they are “robbed of the opportunity to present to the jury evidence of the findings shortly after this accident.”22 Plaintiffs cite several Louisiana state court cases that an adverse-inference instruction is the appropriate remedy.23 Therefore, Plaintiffs request an adverse inference against Defendants.24

B. Defendants’ Arguments in Opposition to the Motion
In opposition, Defendants argue that Plaintiffs’ request lacks any legal basis.25 As an initial matter, Defendants assert that federal law, not state law governs this evidentiary issue.26 On the merits, Defendants contend that Plaintiffs have failed to show an essential element for an adverse-inference instruction—namely, that evidence was destroyed.27 Instead, Defendants assert that the evidence never existed.28

Moreover, Defendants aver that Fifth Circuit precedent requires a showing of bad faith to impose an adverse inference.29 Defendants argue that Plaintiffs have not made the requisite showing of bad faith.30 Defendants cite to a case from the Western District of Louisiana with similar facts.31 In Roberts v. CRST Van Expedited, Inc., the district court denied the plaintiff’s request for an adverse inference.32 There, the plaintiff argued that a commercial trucking company failed to comply with its internal policy mandating drug and alcohol drug testing following vehicle accidents.33 The plaintiff requested an adverse inference based on the company’s failure to comply.34 The district court denied that request, reasoning that the plaintiff failed to show that the evidence was intentionally destroyed or that the driver was tested by the investigating officer.35

*3 Here, Defendants contend that Plaintiffs have not carried their burden to show bad faith on the part of Defendants.36 Defendants assert that Plaintiffs have not produced any evidence that Ingle lied to anyone, that he refused a test, or that he was asked by anyone to take a test.37

Defendants also assert that Plaintiffs’ argument is based on a misreading of Defendants’ policy.38 Specifically, Defendants contend that the policy’s provision that a driver will be presumed to have tested positive applies only when a driver refuses a random drug test.39 Defendants aver that no such presumption applies to post-accident tests.40 Accordingly, Defendants urge the Court to deny Plaintiffs’ motion.41

III. Legal Standard
Federal district courts have the inherent power to issue sanctions, but such power “must be exercised ‘with restraint and discretion.’ ”42 As the Fifth Circuit explained in NASCO, Inc. v. Calcasieu Television and Radio, Inc., a court’s inherent power “is not a broad reservoir of power, ready at an imperial hand, but a limited source; and implied power squeezed from the need to make the court function.”43 Under the spoliation of evidence doctrine, if evidence is intentionally destroyed, the trial court may exercise its discretion to impose sanctions on the responsible party.44 The preferred sanction in such a situation is “the well-established and long-standing principle of law that a party’s intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.”45 This adverse inference rule “derives from the common sense notion that a party’s destruction of evidence which it has reason to believe may be used against it in litigation suggests that the evidence was harmful to the party responsible for its destruction.”46 Accordingly, to restore the prejudiced party, an adverse inference “plac[es] the risk of an erroneous judgment on the party that wrongfully created the risk.”47

*4 Before a court may provide for an adverse inference in light of the destruction of evidence, “the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed.”48 Such a duty “arises when the party has notice that the evidence is relevant to litigation.”49 Once a court concludes that a party was obliged to preserve the evidence, it must then consider whether the evidence was intentionally destroyed.50 The adverse-inference sanction may not be imposed unless there is evidence of bad faith,51 and “mere negligence is not enough” to warrant the invocation of the spoilation of evidence doctrine.52 Finally, the court must consider the likely contents of the destroyed evidence.53 That is, before a court permits the drawing of an adverse inference, there must be “some showing indicating that the destroyed evidence would have been relevant to the contested issue.”54

IV. Analysis
Plaintiffs move the Court to find that they are entitled to an adverse inference against Defendants and to instruct the jury that they can presume Ingle was intoxicated at the time of the accident.55 Defendants argue that Plaintiffs have not shown bad faith and that their request should be denied.56

Plaintiffs argue that “a negligent act” is sufficient to find spoliation under Louisiana law.57 However, a federal court sitting in diversity applies federal rather than state spoliation laws.58 Under federal law, “mere negligence is not enough” to warrant the invocation of the spoilation of evidence doctrine.59 “The Fifth Circuit permits an adverse inference against the destroyer of evidence only upon a showing of ‘bad faith’ or ‘bad conduct.’ ”60

Here, the Court finds that Plaintiffs have not carried their burden to show bad faith. Plaintiffs have not shown that the results of a drug or alcohol test ever existed, let alone that they were destroyed. Plaintiffs do not produce any evidence that Ingle was ever asked to submit to a drug test. Although Defendants’ policies and federal law may require Ingle to submit to a drug test, without showing that Ingle refused to submit to a test, Plaintiffs have not shown bad faith on the part of Defendants. Relatedly, Plaintiffs point to no authority that Q&M’s failure to request that Ingle submit to a drug test constitutes bad faith. Additionally, Plaintiffs allege that the deposition testimony of John Benton reveals that “Ingle lied to his supervisor and did not inform him that Ingle received a citation in this accident or that Plaintiff Kelly was taken by ambulance to the hospital.”61 However, Plaintiffs do not support this claim by providing the Court with this deposition testimony. Even if Plaintiffs had provided this deposition, the Court is not convinced that Ingle’s alleged omission amounts to bad faith. Therefore, the Court finds that Plaintiffs have not shown bad faith. Plaintiffs may argue that Ingle failed to take a drug or alcohol test as required; however, the Court will not instruct the jury to infer Ingle was intoxicated. Accordingly, the Court denies Plaintiffs’ motion.

V. Conclusion
*5 For the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiffs Wayland Collins and Alvin Polk’s Motion for Adverse Inference62 is DENIED.

All Citations
Slip Copy, 2021 WL 5283974

Footnotes

1
Rec. Doc. 1 at 1.

2
Rec. Doc. 408.

3
Rec. Doc. 422.

4
Rec. Doc. 1. Candy Kelly was also originally named as a Plaintiff in this litigation. Id. On September 24, 2021, the Court granted a joint motion to dismiss Candy Kelly’s claims. Rec. Doc. 357.

5
Rec. Doc. 1.

6
Id.

7
Id. at 4.

8
Id. at 5.

9
Id.

10
Rec. Doc. 408.

11
Rec. Doc. 422.

12
Rec. Doc. 408.

13
Rec. Doc. 408-1 at 2.

14
Id.

15
Id.

16
Id. at 2. More particularly, Plaintiffs assert that non-party Transafe, LLC, an organization that administers federal compliance for commercial trucking companies, incorporated this requirement into its policies, which Defendants adopted. Id. at 2.

17
Id.

18
Id. at 2–3.

19
Id. at 6.

20
Id. at 2. Plaintiffs also re-raise their argument that Ingle lied about his prior conviction during his deposition. Id. As explained in this Court’s Order granting Defendants’ motion in limine to exclude Ingle’s prior conviction, the Court disagrees with Plaintiffs’ characterization of Ingle’s deposition testimony. See Rec. Doc. 436.

21
Rec. Doc. 408-1 at 10.

22
Id. at 6–7.

23
Id. at 4–6.

24
Id. at 6–7.

25
Rec. Doc. 422 at 1–3.

26
Id. at 2–3.

27
Id. at 3.

28
Id. at 3.

29
Id.

30
Id. at 3–4.

31
Id. at 4.

32
Id. at 5–6 (discussing Roberts v. CRST Van Expedited, Inc., No. 14-3430, 2016 WL 3648276 (W.D. La. June 30, 2016)).

33
Roberts, 2016 WL 3648276, at *1, *3–4.

34
Id. at *3.

35
Id. at *3–4.

36
Rec. Doc. 422 at 5–6.

37
Id. at 6.

38
Id.

39
Id.

40
Id. Defendants also aver that, even if the policy did apply to post-accident tests, “[that] presumption would not have any conclusory effect in this litigation.” Id.

41
Id. at 7.

42
Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1406 (5th Cir. 1993) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980)).

43
NASCO, Inc. v. Calcasieu Television & Radio, Inc., 894 F.2d 696, 702 (5th Cir. 1990), quoted with approval and aff’d, 501 U.S. 32 (1991).

44
See Vodusek v. Bayline Marine Corp., 71 F.3d 148, 155–56 (4th Cir. 1995); Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3rd Cir. 1994) (reviewing the historical development of the spoilation of evidence doctrine).

45
Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998), cert. denied, 531 U.S. 1078 (2001); see also, Vodusek, 71 F.3d at 155 (“Under the spoliation of evidence rule, an adverse inference may be drawn against a party who destroys relevant evidence.”); Schmid, 13 F.3d at 78 (holding that showing evidence had been destroyed “permitted an inference, the ‘spoliation inference,’ that the destroyed evidence would have been unfavorable to the position of the offending party.”); Nation-Wide Check Corp. v. Forest Hills Distribs., 692 F.2d 214, 217–18 (1st Cir. 1982) (“When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party which has prevented production did so out of the well-founded fear that the contents would harm him.”).

46
Kronisch, 150 F.3d at 126.

47
Id. (quoting Nation-Wide Check, 692 F.2d at 218).

48
Id.; see also Menges v. Cliffs Drilling Co., No. 99-2159, 2000 WL 765082, *2 (E.D. La. June 12, 2000) (Vance, J.) (citing Kronisch, 150 F.3d at 126).

49
Kronisch, 150 F.3d at 126.

50
Id.

51
See e.g., Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005) (“The Fifth Circuit permits an adverse inference against the destroyer of evidence only upon a showing of ‘bad faith’ or ‘bad conduct.’ ”); Caparotta v. Entergy Corp., 168 F.3d 754, 756 (5th Cir. 1999) (“[A]n adverse inference drawn from the destruction of records is predicated on bad conduct by the defendant.”); Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995) (“This Court has held that such sanctions should be confined to instances of ‘bad faith or willful abuse of the judicial process.’ ”).

52
Russell v. Univ. of Tex. of Permian Basin, 234 F. App’x 195, 208 (5th Cir. 2007) (quoting Vick v. Tex. Emp. Comm’n, 514 F.2d 734, 737 (5th Cir. 1975)).

53
Kronisch, 150 F.3d at 126.

54
Id. at 127.

55
Rec. Doc. 408.

56
Rec. Doc. 422.

57
Rec. Doc. 408-1 at 4–6.

58
Condrey, 431 F.3d at 203.

59
Russell, 234 F. App’x at 208 (quoting Vick, 514 F.3d at 737).

60
Condrey, 431 F.3d at 203.

61
Rec. Doc. 408-1 at 10.

62
Rec. Doc. 408.

2021 WL 5083753

United States District Court, N.D. Illinois, Eastern Division.
Ying Ye, Plaintiff,
v.
Global Sunrise, Inc. and GlobalTranz Enterprises, Inc. Defendants.
No. 18-cv-1961
|
11/02/2021

Memorandum Opinion and Order
*1 On November 7, 2017, Shawn Lin’s motorcycle collided with a tractortrailer that was being operated by David Carty, an employee of Defendant Global Sunrise, Inc. (“Global Sunrise”). Mr. Lin died as a result of his injuries. Ying Ye, Mr. Lin’s widow, brought the instant action against Global Sunrise and GlobalTranz Enterprises, Inc. (“GlobalTranz”), the freight broker that engaged Global Sunrise. See ECF No. 99 ¶¶ 4-5. Ms. Ye claims that defendants are vicariously liable for Mr. Carty’s negligent driving. GlobalTranz now moves for summary judgment [91], arguing that it is not vicariously liable for any negligence on the part of Mr. Carty or Global Sunrise as a matter of law. For the reasons that follow, the motion is granted.

I.
The relevant facts are largely undisputed. GlobalTranz provides third-party logistics services and acts as a freight broker, meaning that it arranges for transportation of cargo by third-party motor carriers. ECF No. 99 ¶¶ 4-5. It is not itself a licensed motor carrier and does not own or operate any trucks, trailers, or other transportation equipment. Id. ¶ 7.

One of GlobalTranz’s clients was U-Haul Moving & Storage (“U-Haul”); it brokered loads for U-Haul using several different motor carriers. Id. ¶ 6. GlobalTranz and U-Haul entered into a “Transportation Management System Agreement” on April 14, 2016, which concerned transport of U-Haul’s “U-Box Containers.” See ECF No. 99-1. As part of that agreement, GlobalTranz agreed to abide by several conditions, including: (1) “[t]o provide an Air Ride Trailer;” (2) “[t]o NOT use refrigerated trucks or trailers;” (3) “[t]o NOT provide ‘Do it yourself’ moving type rental trucks or trailers;” (4) “[t]o comply with all laws, rules, statutes and regulations that may apply…including obtaining and maintaining on an ongoing basis any and all applicable state and federal licensure;” and (5) “[t]o perform the Services by engaging in ‘No Touch Loads.’ ” Id. § 3.1. GlobalTranz also agreed that a $250 fee would be assessed for loads delivered 1-3 days past the delivery date and a $500 fee would be assessed for loads delivered 4 or more days past the delivery date. Id. App’x C. In addition, Section 2.2 of the Agreement provides: “All persons, if any, hired by [GlobalTranz] shall be employees or subcontractors of [GlobalTranz] and shall not be construed as employees or agents of [U-Haul] in any respect. [GlobalTranz] remains responsible for the quality and timeliness of performance under this Agreement notwithstanding any delegation.” Id. § 2.2.

On August 10, 2017, GlobalTranz entered into a “Freight Transportation Broker-Motor Carrier Agreement” defining its relationship with Global Sunrise. See ECF No. 94-24. The relationship was not exclusive–the Agreement provided: “GlobalTranz is not restricted against tendering its freight to other carriers; [Global Sunrise] is not restricted against performing transportation for other shippers or brokers.” Id. § 3. It also contained the following provision:
*2INDEPENDENT CONTRACTOR[Global Sunrise] is an independent contractor, and as such is wholly responsible in every way for such persons as [Global Sunrise] hires or employs. [Global Sunrise] shall be wholly responsible for performing the contemplated transportation and for all costs and expenses of such transportation, including but not limited to, costs and expenses of all [Global Sunrise]’s transportation equipment, its maintenance, and those persons who operate it. As to GlobalTranz, [Global Sunrise] shall have the sole and exclusive responsibility for the manner in which its employees and/or independent contractors perform the transportation service, including the equipment provided. Customer may specify particular equipment according to type, weight, value or dimension of shipment.
Id. § 8. Global Sunrise also agreed not to “in any way sub-contract, broker, or arrange for the freight to be transported by a third party without GlobalTranz’s prior written consent.” Id. § 14.

In October 2017, GlobalTranz agreed to arrange for transportation of a load of U-Haul “U-Box” cargo that was to be shipped from a U-Haul facility in Chicago, Illinois to another facility in Conroe, Texas. ECF No. 99 ¶¶ 12-13. GlobalTranz brokered that load to Global Sunrise on October 26, 2017. Id. ¶ 15. In connection with the load, GlobalTranz issued a Rate Confirmation, which was signed by GlobalTranz and a Global Sunrise dispatcher. See ECF No. 94-25. The Rate Confirmation specified that the load was to be picked up on October 30, 2017 and delivered November 6. Id. Under the heading “Important Load Notes,” the Rate Confirmation provided:
Carrier is responsible for relaying 2 hour pickup and delivery ETA to broker for scheduling purposes. If ETA is not communicated, any resulting accessorials will be denied. Must be 53’ swing door, dry van with air ride, NO reefers [refrigerated trailers]. DIMS 60” x 96” x 93”; 2500lbs (Per pallet)….Shipment must deliver 11/6/2017. If the load delivers past the required delivery date, a 15% rate reduction will be applied per day. Shipment is subject to cancellation or rate adjustment for ubox increases and/or decreases.
Id. Additionally, in the fine print at the bottom, the Rate Confirmation specified: “Driver must call GlobalTranz (GTZ) to be dispatched. Driver or carrier’s dispatch must call GTZ each day during transit to provide a tracking update/driver location report….Accurate tracking updates must be provided daily.” Id. Global Sunrise also agreed that “[p]roper load temperature [wa]s the Driver/Carrier’s responsibility” and guaranteed compliance with several federal laws and regulations. Id.

The load was retrieved from U-Haul and brought to Global Sunrise’s yard in Bolingbrook, Illinois. See ECF No. 99 ¶¶ 26, 49. Mr. Carty then picked it up in Bolingbrook on November 3, 2017. Id. ¶ 49.

Mr. Carty was a driver employed by Global Sunrise. Id. ¶ 39. Global Sunrise paid Mr. Carty, provided Mr. Carty with the truck he drove, and relayed his driving assignments to him. Id. ¶¶ 43-44, 46. As an employee of Global Sunrise, GlobalTranz could not fire Mr. Carty, nor could it fine Mr. Carty directly for any reason (although, as noted above, it could fine Global Sunrise). Id. ¶ 72. Mr. Carty never saw the Broker-Motor Carrier Agreement between Global Sunrise and GlobalTranz, nor did he receive a copy of the Rate Confirmation or know what terms it contained. Id. ¶¶ 65-66. Indeed, Mr. Carty did not communicate directly with GlobalTranz at any time regarding the load at issue despite the Rate Confirmation’s requirement that the driver call GlobalTranz to be dispatched, for daily location updates, and regarding delivery time. Id. ¶¶ 64, 67.

GlobalTranz did not specify what route Mr. Carty was to take to Conroe, Texas, what speed to travel, or where to refuel. Id. ¶ 68. Accordingly, Mr. Carty was free to make his own decisions on those matters. That freedom appears to have been wielded irresponsibly here, however, because Mr. Carty delivered the load to U-Haul one day late, on November 7, 2017. ECF No. 105 ¶ 39. According to Mr. Carty, the accident occurred as Mr. Carty was pulling into the U-Haul parking lot to make his delivery. ECF No. 99 ¶ 58. Because the load was a day late, GlobalTranz applied a 15% rate reduction in conformance with the Rate Confirmation’s terms. ECF No. 105 ¶ 39.
*3 II. GlobalTranz argues that it is not vicariously liable for Mr.
Carty’s accident as a matter of law. I agree.

Under Illinois law, “[a] principal is vicariously liable for the conduct of its agent but not for the conduct of an independent contractor.” Sperl v. C.H. Robinson Worldwide, Inc., 946 N.E.2d 463, 470 (Ill. App. Ct. 2011). “An agency is a consensual relationship in which a principal has the right to control an agent’s conduct and an agent has the power to affect a principal’s legal relations”; in contrast, “[a]n independent contractor undertakes to produce a given result but, in the actual execution of the work, is not under the order or control of the person for whom he does the work.” Id. “In determining whether a person is an agent or an independent contractor, the court’s cardinal consideration is the right to control the manner of work performance, regardless of whether that right was actually exercised.” Id. at 471. “Another significant factor is the nature of the work performed in relation to the general business of the employer….Other factors to consider are: (1) the right to discharge; (2) the method of payment; (3) the provision of necessary tools, materials, and equipment; (4) whether taxes are deducted from the payment; and (5) the level of skill required.” Id. “Though no single factor controls,…and weighing them is typically a question of fact, a court may decide the question if the underlying facts are not disputed.” Kolchinsky v. W. Dairy Transport, LLC, 949 F.3d 1010, 1013 (7th Cir. 2020) (citing Dowe v. Birmingham Steel Corp., 963 N.E.2d 344, 351 (Ill. App. Ct. 2011)).

Although a close question, I conclude that the level of control GlobalTranz was able to exercise over Global Sunrise’s operation is insufficient to support an agency relationship. The best evidence of agency comes from the Rate Confirmation, which required Global Sunrise to use a specific type of trailer, imposed a rate reduction for late deliveries, required the driver to be in contact with GlobalTranz at various times, and mandated compliance with various federal laws. See ECF No. 94-25. GlobalTranz points out that Mr. Carty did not receive a copy of the Rate Confirmation or know what it said and, indeed, did not comply with its terms regarding communication with GlobalTranz. See ECF No. 92 at 9-10. “However, it is the right or duty to supervise or control, not the exercise of that right, that determines whether agency exists.” Powell v. Dean Foods Co., 7 N.E.3d 675, 697 (Ill. App. Ct. 2013).

Although the Rate Confirmation does allow GlobalTranz to assert a degree of control over Global Sunrise’s operations, it falls short of the level of control that Illinois courts have required to support a finding of agency. See, e.g., id. at 696-97 (finding agency where carrier worked exclusively for distributor, used distributor’s trailer with distributor’s logo, and drivers were bound to wear distributor’s clothing and act in

a manner that would encourage positive opinions about distributor); Hoffman v. Crane, 2014 IL App (1st) 122793-U ¶ 36 (finding agency where carrier manual developed in part by product producer required drivers to maintain well-kept appearance and perform duties in professional manner, and producer could prohibit drivers from hauling its product if drivers did not follow those requirements). Moreover, courts that have considered contractual requirements similar to those imposed by the Rate Confirmation have found them insufficient to support a finding of agency. See Kolchinsky, 949 F.3d at 1013 (no agency although broker required carrier to contact it at various times and imposed fees for late or damaged deliveries); Scheinman v. Martin’s Bulk Milk Serv., Inc., No. 09 C 5340, 2013 WL 6467525, at *11 (N.D. Ill. Dec. 9, 2013) (no agency despite communication requirements and obligation to comply with federal, state, and local laws).
*4 Other facts support my determination that Global Sunrise was an independent contractor here. GlobalTranz imposed no requirements regarding what route to take or how the driver ought to behave, and it could not fire Mr. Carty. See ECF No. 99 ¶¶ 68, 72. Global Sunrise, not GlobalTranz, paid Mr. Carty, provided the truck and equipment, and communicated assignments. See id. ¶¶ 43-

44, 46. And in the Broker-Motor Carrier Agreement, Global Sunrise referred to itself as an independent contractor, see ECF No. 94-24 § 8, which, although not dispositive, weighs in favor of an
independent-contractor determination. See, e.g.,Scheinman, 2013 WL 6467525, at *9 (“A contract’s statement of employment status is …considered a relevant–but not dispositive–factor in determining whether an individual is an independent contractor, insofar as it is ‘indicative of the intent of the parties.’ ”) (citing Early v. Indus. Comm’n, 553 N.E.2d 1112, 1118 (Ill. App. Ct. 1990)).
Ms. Ye relies heavily on the Sperl case, 946 N.E.2d 463, to argue that Global Sunrise was GlobalTranz’s agent here. But in that case, the broker exercised a much higher degree of control over the driver. Specifically, the broker imposed a strict time schedule that required the driver to break federal regulations governing maximum driving time, required consistent communication, and compelled constant monitoring of the temperature of the load, all of which was enforced by a series of fines for noncompliance. 946 N.E.2d at 471-72. The broker also dispatched and paid the driver directly. Id. at 472. Because the broker in Sperl controlled the details of the driver’s operations to a greater extent than GlobalTranz controlled the operations of Global Sunrise, Sperl is distinguishable.1

Because I conclude that Global Sunrise and Mr. Carty were not agents of GlobalTranz as a matter of law, the motion for summary judgment [91] is granted.
ENTER ORDER:

Elaine E. Bucklo

United States District Judge

Dated: November 2, 2021
All Citations
Slip Copy, 2021 WL 5083753

Footnotes

1
Ms. Ye also argues that vicarious liability stems from a “statutory employment” relationship with GlobalTranz built on provisions in the Federal Motor Carrier Safety Regulations, particularly 49 C.F.R. § 390.5 (defining ‘employees’ under the regulations to include independent-contractor commercial motor vehicle operators) and 49 C.F.R. §§ 376.11-12 (requiring motor
carriers leasing vehicles from others to include a provision in
the lease in which they assume responsibility for operation of the
leased equipment). But these regulations do not supplant the
common law of agency–“[c]ompliance with federal regulations is
merely a factor that may be considered in a common law analysis.”
Roberson v. Indus. Comm’n, 866 N.E.2d 191, 202 (Ill. 2007); see 49
C.F.R. § 376.12(c)(4); U.S. Bank v. Lindsey, 920 N.E.2d 515, 527-
28 (Ill. Ap. Ct. 2009) (“[A]ny employee status resulting solely
from the statutory requirements is a fiction which exists only to
insure the [interstate carrier’s] responsibility to shippers and
members of the public and not to create an employment
relationship”); see also McKeown v. Rahim, 446 F. Supp. 3d 69, 77-
82 (W.D. Va. 2020); White v. Date Trucking, LLC, No. ELH-17-1177,
2018 WL 2462921, at *4-5 (D. Md. June 1, 2018). Accordingly, the
federal regulations do not alter my analysis above.