Preview
FILED
: 26/2024 3. 15 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY |
CAUSE NO. DC-22-15461
PABLO BENAVIDES, IN THE DISTRICT COURT
Plaintiff
¥. 44TH JUDICIAL DISTRICT
AWET WELDEMICHAEL,
SMS LOGISTIC LLC,
CRUM TRUCKING, INC.,
CRUM LOGISTICS SERVICES, INC.,
VALEO NORTH AMERICA, INC.,
NATIONWIDE EXPEDITING &
LOGISTICS, LLC, YOHANNIS REDA,
LANDSTAR SYSTEM, INC.,
S.A. FREIGHT INTERNATIONAL, INC.,
and LANDSTAR RANGER, INC.,
Defendants, DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff Pablo Benavides and files this Response in Opposition to
Defendant Landstar Ranger, ine,’ Traditional Motion for Summary Judgment and Defendant
Landstar Ranger, Inc.’s Second Traditional Motion for Summary Judgment pursuant to Texas
Rules of Civil Procedure 166a and would show the Court the following:
I SUMMARY OF RESPONSE
Defendant Landstar Ranger, Inc. (“Defendant” or “Landstar”) filed Motions for traditional
summary judgment on the allegations that Defendant is entitled to summary judgment as a matter
of law on Plaintiff's claims against Landstar Ranger, Inc. However, Landstar has failed to
conclusively establish their entitlement to judgment as a matter of law because they fail to disprove
as a matter of law any element of the Plaintiff's causes of action.
PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 1 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
il. FACTUAL ALLEGATIONS AND BACKGROUND
This case arises from a motor vehicle collision that occurred on August 30, 2021 when
Plaintiff was driving a vehicle that was struck from behind Defendant driver Awet Weldemichael.
At the time of the collision, Weldemichael was driving his tractor trailer in the course and scope
of his employment with Defendants SMS Logistic LLC, Crum Trucking, Inc., Crum Logistics
Services, Inc., Valeo North America, Inc., Nationwide Expediting & Logistics, LLC, Yohannis
Reda, and the Landstar Defendants. Defendant Awet Weldemichael failed to control his speed and
crashed into Plaintiff. Plaintiff sustained severe injuries as a result of the collision and negligence
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of Defendants. As a result of the collision, Plaintiff suffered severe injuries.
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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 2 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
This case was originally filed on November 4, 2022, and is currently set for jury trial on
September 3, 2024, Defendants Awet Weldemichael (18-wheeler driver), SMS Logistic LLC
(trucking company), and Crum Trucking, Inc. (purported owner of the trailer) were the initial
Defendants.
Through Disclosures and written discovery, a Master Logistics Services Agreement was
produced between Crum Logistics Services, Inc. and Valeo North America, Inc. for Crum
Logistics Services, Inc. to provide transportation services for Valeo North America. As a result of
this new information, the Petition was amended and Crum Logistics Services, Inc. and Valeo North
America, Inc. were brought into the suit as Defendants,
Through additional written discovery and Disclosures, Crum Trucking, Inc. indicated that
Nationwide Expediting & Logistics, LLC is a potential responsible third party; and SMS Logistic
indicated Yohannis Reda was the actual owner of the tractor, not SMS Logistic LLC.
Consequently, the petition was amended again to add Nationwide Expediting & Logistics, LLC
and Yohannis Reda as Defendants.
On July 26, 2023, shortly after Nationwide Expediting & Logistics, LLC were brought in,
Nationwide Expediting & Logistics, LLC filed a Motion to Designate Responsible Third Party and
named three (3) additional entities in connection with this lawsuit: Landstar System, Inc., Landstar
KHR Agency, and SA Freight International, Inc. (collectively referred to as “Landstar”). (See
Exhibit A). Through Nationwide’s Disclosures, emails between Landstar and Nationwide were
produced relating to the wreck at issue. (See Exhibit B). As a result of this new information, the
Petition was amended again to bring in all of the Landstar Defendants.
Landstar Ranger, Inc. filed its motions for summary judgment on January 16, 2024 and
January 30, 2024. Plaintiff now responds and disagrees with Defendant’s arguments and assertions
PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 3 of25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
based on the foregoing, and as such would ask this Court to DENY Defendant’s motions for
traditional summary judgment.
‘Currently, the depositions of Defendant Driver Awet Weldemichael and the Designated
Corporative Representative/Owner of SMS Logistic LLC, Samuel Mehari, have been Noticed for
March 13, 2024 after being Quashed and/or rescheduled at least four (4) times since the summer
of 2023. (See Exhibits C and D).
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Wi. EVIDENCE AGAINST SUMMARY JUDGEMENT
In support of his response, Plaintiff relies on the following exhibits which are attached and
incorporated by reference and Plaintiff intends to rely upon these documents in response to
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 4 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
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Defendant’s motions for summary judgment:
Exhibit - A: Defendant Nationwide Expediting & Logistic, LLC’s Motion to Designate
Responsible Third Parties;
Exhibit - B: Defendant Nationwide Expediting & Logistics, LLC’s Initial Disclosure
Responses;
Exhibit - C: Third Amended Notice of Deposition of Defendant Awet Weldemichael;
Exhibit - D: Third Amended Notice of Intention to Take The Video/Oral Deposition of
Samuel Mehari, the Designated Corporate Representative for SMS
Logistic LLC;
Exhibit - E Agreed Scheduling Order for September 3, 2024 Trial;
Exhibit - F: Affidavit of Scott Ray (January 30, 2024);
Exhibit - G: Defendant Landstar Ranger, Inc.’s Responses to Requests for Production
with Production;
Exhibit - H. Plaintiff's Fifth Amended Petition;
Exhibit - I: Application for Employment of Awet Weldemichael;
Exhibit - J: Additional Email Correspondences Between Landstar and Defendants;
Iv. TRADITIONAL SUMMARY JUDGMENT STANDARD
The party moving for summary judgment has the burden to show there is no genuine issue
of material fact and that it is entitled to a judgment as a matter of law.! After the movant has
established a right to summary judgment, the burden of proof then shifts to the non-moving party
to present evidence creating a fact issue.” The evidence presented by both parties is viewed in light
most favorable to the non-moving party
' TEX. R. CIV. P. 166a(c); Rhone-Poulene, Inc. v. Steel, 997 $.W.2d 217, 222 (Tex. 1999) (citing Swilley v. Hughes,
488 S.W.2d 64, 67 (Tex. 1972)
? Kang v. Hyundai Corp., 992 §.W.2d 499, 501 (Tex. App.—Dallas 1999, no pet.)
3 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006); Timpte Indus. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009).
PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 5 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
Vv. ARGUMENT & AUTHORITIES
A. There has not been sufficient time for Discovery for Plaintiff's claim of direct
negligence (negligent hiring and selection) and gross negligence against Landstar
Ranger, Inc. and Defendant Landstar Ranger, Inc. has failed to produce the
Transportation Brokerage Agreement in Discovery or in their Motions for Summary
Judgment.
Under the current Agreed Scheduling Order, the discovery deadline for all parties is July
5, 2024 (60 days before trial). (See Exhibit E). Therefore, there has not been an adequate time for
discovery against Defendant Landstar Ranger, Inc. as Defendant had just entered the lawsuit in
August of 2023. Currently, the depositions of Defendant Driver Awet Weldemichael and the
Designated Corporative Representative/Owner of SMS Logistic LLC, Samuel Mehari, have been
Noticed for March 13, 2024 after being Quashed and/or rescheduled at least four (4) times since
the summer of 2023. (See Exhibits C and D).
These depositions will be key in determining the extent of Defendant Landstar Ranger,
Inc.’s involvement with Defendants SMS Logistic LLC and Defendant Driver Awet Weldemichael
leading up the collision at issue that forms the basis of this lawsuit.
Further, Defendant Landstar Ranger, Inc. has not yet produced the alluded-to
“Transportation Brokerage Agreement” between SMS Logistic LLC and Landstar Ranger, Inc.,
but merely makes mentions to it in the Affidavit of Scott Ray dated January 30, 2024. (See Exhibit
F). Under Texas Rule of Civil Procedure 166a(c)(i):
“... A summary judgment may be based on uncontroverted testimonial evidence
of an interested witness, or of an expert witness as to subject matter concerning
which the trier of fact must be guided solely by the opinion testimony of experts, if
the evidence is clear, positive and direct, otherwise credible and free from
contradictions and inconsistencies, and could have been readily controverted.” Tex.
R. Civ. P. 166a(c)(i).
This “Transportation Brokerage Agreement” is impossible to controvert as Defendant has failed
to produce said Agreement, despite Plaintiff's Discovery Requests that specifically request any
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 6 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
Agreements or documents evidencing the relationship between Defendant Landstar Ranger, Inc.
and the named Defendants in this lawsuit. (See Exhibit G). Therefore, the Affidavit of Scott Ray
dated January 30, 2024 is merely conclusory and summary judgment as to Defendant Landstar
Ranger, Inc. should be denied as Defendant has failed to produce the “Transportation Brokerage
Agreement” in ongoing discovery to date, nor does Defendant include said Agreement in their
Motions for Summary Judgment.
B. Negligent Hiring and Negligent Selection Against Landstar Ranger, Inc.
To recover under a theory of negligent hiring, “‘a plaintiff must prove that (1) the employer
owed a legal duty to protect the employee's actions and (2) the third party's sustained damages were
proximately caused by the employer's breach of that duty.” The same must also be proven to
successfully prosecute a claim of negligent training or supervision, as emphasized in Moore Freight
Servs., Inc. v. Munoz, 545 §.W.3d 85, 98 (Tex. App. 2017). “To successfully prosecute a claim
of... retention, a plaintiff is required to show that (1) the employer owed a legal duty to protect third
parties from the employee's actions, and (2) the third party sustained damages proximately caused
by the employer's breach of that legal duty.”
"Although the Texas Supreme Court ‘has not ruled definitively on the existence, elements
and scope’ of negligent training and hiring, it has been explained that courts may find employers
liable based on the multi-factor test, weighing 'the risk, foreseeability, and likelihood of injury in
requiring employers to control employees, versus the burdens on and consequences to employers.
‘ Bedford v. Moore, 166 8.W.3d 454, 463 (Tex. App.-Fort Worth 2005, no pet.) (citing Rosell v. Cent. W. Motor
Stages, Inc., 89 8,W.3d 643, 655 (Tex. App.-Dallas 2002, pet. denicd)).
5 Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.—Austin 1998, no pet.).
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR. Page 7 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
and the social utility and realities of the workplace.”* Texas intermediary courts have held that the
elements of a cause of action for negligent supervision and training are:
(1) The employer owed the plaintiff a legal duty to hire, supervise, train,
or retain competent employees;
(2) The employer breached that duty; and
(3) The breach proximately caused the Plaintiffs' injuries.
“To establish a claim for negligent training, a plaintiff must prove that a reasonably prudent
employer would have provided training beyond that which was given and that failure to do so
n7
caused his injures.
Duty is a question of Jaw for the court to decide based upon facts surrounding the
occurrence in question.® "In determining whether a duty exists, a court is to
consider several interrelated factors such as: (1) the risk involved; (2) the foreseeability' of the
risk; (3) likelihood of injury; and (4) the social utility of the actor’s conduct and the magnitude of
the burden on the defendant.”” Of all factors considered, foreseeability of the risk is the
foremost and dominant consideration.’° "Foreseeability means that a person of ordinary
intelligence should have anticipated the dangers that his negligent act created for others."!!
The elements of proximate cause are cause in fact and foreseeability.'? “The test for cause
in fact is whether the act or omission was a substantial factor in bringing about the injury without
° See Lozano v. Baylor Univ., 408 F. Supp. 3d 861, 895 (W.D. Tex. 2019) (citing Pagayon v. Exxon Mobil Corp,
536 S.W.3d 499, 505-506.
7 Dangerfield v. Ormsby, 264 S.W.3d 904. 912 (Tex. App.—Fort Worth 2008, no pet.) (citations omitted),
8 Davis—Lynch, Inc. v. Asgard Te ‘echnologies, LLC, 472 S.W.3d. 50, 64 (Tex. App.—Houston ['14th Dist.] 2015, no
pet) (citing Greater Houston Transportation Co. v. Philips 801 S.W.2d 523, 525 (Tex. 1990).
10 Id.
'\ Jd, (citing Missouri Pac. R.R. Co. v. Am, Statesman. 552 8.W.2d 99, 103 (Tex. 1997).
” See Douglas v. Hardy, 600 S.W.3d 358, 368 (Tex. App.—Tyler 2019, no pet).
PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 8 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
which the harm would not have occurred.”!? “Harm is foreseeable if a person of ordinary
intelligence should have anticipated the danger created by an act or omission,"!*
In Plaintiff's Fifth Amended Petition, Plaintiff pled that: “[t]his negligence in hiring was
caused by these Defendants’ failure to adequately investigate and screen a motor carrier such as
SMS Logistic and its drivers prior to hiring them to haul the load at issue, and this failure
proximately caused Plaintiff's injuries.” (See ExhibitH). This encompasses the negligent selection
cause of action and puts Defendant Landstar Ranger, Inc. on notice of Plaintiff's claims.
A person employing an independent contractor is required to use ordinary care in hiring
the contractor.”!* With respect to Plaintiff's negligent selection claim against Landstar, Landstar
was negligent in hiring SMS Logistic LLC as a motor carrier to transport the Shipment because it
failed to conduct a reasonable investigation to assure itself that SMS Logistic LLC had reasonable
policies, procedures and practices to ensure that SMS Logistic LLC operated as a safe motor carrier
and that SMS Logistic LLC had adequate policies and procedures in place for training safe drivers.
Landstar’s negligent selection of SMS Logistic, LLC led to the negligent selection, training,
retention, and supervision of Defendant Driver Awet Weldemichael. Therefore, a reasonably
prudent person/company such as Landstar would have investigated what procedures SMS Logistic
LLC had adopted.
Defendant Awet Weldemichael had been hired on August 23, 2021 — literally one (1) week
before the collision at issue occurred on August 30, 2021. (See Exhibit ID). Defendant Awet
Weldemichael had just been issued his Commercial Drivers License on July 30, 2021, amere month
before the collision at issue. (See Exhibit ), Defendant Landstar should have properly vetted the
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14 Ig.
'S Mireles v, Ashley, 201 S.W.3d 779, 782 (Tex. App. --Amarillo 2006, no pet.).
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 9 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
motor carrier SMS Logistic LLC to ensure that the motor carrier was properly vetting and hiring
drivers to drive under its DOT operating authority.
Defendant Landstar through the Affidavit of Scott Ray dated January 30, 2024 claims that
Landstar Ranger, Inc. “did not provide any instructions on the route to be used, the time to pick or
deliver the load, the manner the driver would operate the vehicle or the details of the driver’s
employment with SMS Logistics, LLC.” (See Exhibit F’). Yet, in the Landstar Load Confirmation,
it clearly dictates that drivers must check in every morning with Landstar, upon arrival and
departure, noting the exclusive use of equipment, needing to notify Landstar of any issues, etc.:
LAR STAR se LANDSTAR LOAD CONFIRMATION
FB #: 9450389
EFFECTIVE DATE: 83012021 CARRIER: SMS LOGISTIC LLC.
EQUIPMENT: CARRIER@: 998734 RGR-KER
COMMODITY: CONSUMER GOODS OR DRIVER: SIGN THIS:
APPLIANCES
DIMENSION: DRIVER CELL: [DOCUMENT
WEIGHT: 35000 CONTACT: SAMUEL MEHARI High Rist:
PIECES: PHONE: (463) 226-1213 TARP:
IDITIGNAT TOTAL CARRIER PAYS ALL INCLUSIVE.
INSTRUCTIONS: Check calls are required
Drivers mus! t call LANOSTAR yy
This fs the exclusive use of
pon areal and
8 am CST. Failure to do so will result
departure
int unless otherwise noted.
of each shi
signe
in a $250 fine,
g paint and must call upon arrivalat destination,
can break a seal. Failure
to do so will
result in a fine.
LANDSTAR
must be notified of any overages, shortages, or damaged products immediately
upon delivery. Failure ta do
‘S90 will result in a. 50% fine,
LANDSTAR
must be made aware of any problems during transit that may result in a delay in delivery! missed pick up.
Failure to do so will result in a 50% fine,
Broker or the Customer for any freight loss, damage or delay. Unloading must be repa itedteumin
‘The carviar shall be liable to LANDSTAR for all economic loss, including consequential that are incurred by
within 2 hrs. The drivermust
call upon arrival at the shipperand receiver a departure of the shipper and receiver along with the pieces, weight,
st
BOL and POD information, Failure to do so will result in a 50% fine.
Loading/unioading receipts must be ied within 24 hours or they won't
POD must be emailed or faxed within 24 hrs, failure to do so will result in a
Co-Defendant Nationwide also provided a “Load Confirmation” between itself and listing
Landstar Ranger, Inc. as the motor carrier:
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 10 of 25.
RANGER, INC,’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
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LOAD CONFIRMATION
Laadt ony
Date 03072021
YaTroeIDe ExELONTING: Equi Power Only
Equipment Length a”
6030 Kemupsford Cr. Weight 35000 Hi
Kemersville, NC 27284 Commodity ‘Dry Goods (General)
Docket: MC10S5217 Bismils,
Phone: 336-310-1870
Fax; 336-310-1869
Carrier Information
LANDSTAR RANGER, INC. MICNamber DECOM ERIE Driver Driver not set
10 SUTTON PARK DRIVE SOUTH. Primary Contact Tony Wood Phane
TACRSONVELE, F324 Phone 9721674117 33
972-362-1117 802 Fax
Notes and References
Rots ‘Trace S491 Oram ler ck up
Please
This naa ey rmeteced te pictep o delivery may cesult in a mnicaum S250 ae Fe, Please eal owe Truckload
Depart 336-310-1870 famed Wh ty ptt nse i cele navd Gow he
‘This is am evctasive lnad nud CAN NOT be pir with any other fre
(See Exhibit B)
In the Affidavit of Scott Ray dated January 30, 2024, Landstar even admits that “a Load
Confirmation Sheet is in error because Landstar Ranger, Inc. was not a motor carrier for purposes
of the transaction.” (See Exhibit F). This mistake alone creates a genuine issue of material fact that
should be presented to the trier of fact, the jury. Not only that, “Transportation Brokerage
Agreement” that the Affidavit of Scott Ray dated January 30, 2024 continuously refers to has not
been produced to Plaintiff, nor was it even attached as an exhibit to Landstar’s Motions for
Summary Judgment. This is crucial evidence that needs to be turned over in discovery, and
Plaintiff has already requested such agreement(s). (See Exhibit G)
Additionally, in the Affidavit of Scott Ray dated January 30, 2024, it is alleged that
“Landstar Ranger, Inc., had no communication with SMS Logistics, LLC or with the driver,” yet
this is directly controverted with the many email correspondences between Landstar representative
David Hill and other Defendants in this case, including the company and/or driver at issue
PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page [1 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
Frony: David <)£933170-67b7-4858-a924-nd39b
1839721 B0e3@ascendims com>
Sent: Tuesday, August 34, 2021 10:15 AM
To: Katle Ellis
Subject: Re: Document(s} from Nationwide Expediting and Logistics, LLC - toad #62227
{just talked to the driver, He told me they are having some tosues with a cadlator and they are fixing
it now but they are in San Antonio now
On Tue, Aug 31, 2021 at 8:57 AM Katle Ellis (Nationwide Expediting and Logistics, ULC) <£433270-
‘SIDZ-SBS9-9924-bd3951839221-25R4@ascendims
com> wrote:
‘What is sta on delivery
j From: David <1{332170-67b7.4ns9-a92¢-bdi9bI83
@ascondims
9721-80e3com>
Sent: Monday, August30, 20214:57 PM
‘To: Katie Ellis
Subject: Re: Document(s) fram Nationwide Expediting and Logistics, LLC - Load #62227
‘The delvers were loaded and on their wayto the receiver
‘MH, 30 aor. 2021 r. 21:58, Katie Ellis (Nationwide Expediting and Logistics, LLC} <1f333370-67b7-
<, <
| Heltat
| Pleasa respond to this email if you do not receive, are unableta open, or have any questions
about the attached file(s)
‘This is the correct Rate con for dentention
‘This is the correct load for the detention
Attached Documents:
Carrier confirmation
Thanks,
Nationvide Expediting
and Logistics, ttc
Ovid H
Landstar KHR Agency [$4 Freight
‘San Antonio, TK
PACREGO9ED SCAT; LRGR
Office # 230-428-0073 ext, 265
Fax #1 832-634-2876
Savid@kbragency
com
[Af you yond like to share your feediack, have any comments, or need sey astistance gli keret
David H
Landstar KHR Agency | SA Freight
San Antonio, T%
MC#166950 SCAC: LAGR
Office # 830-428-0073 ext. 265.
Fax # 832-694-4876
david@hhrageawsom
1t you would Hike to share you feedback, hare any comments. or need any assistance -rlickhere!
(See Exhibits B and J).
Therefore, there is a genuine issue of material fact at issue as to Plaintiffs negligent hiring
and negligent selection claims against Defendant Landstar, and summary judgment should be
denied to Defendant Landstar.
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 12 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
C. Plaintiff's Negligent Selection and/or Hiring Claims Are Not Preempted by the
FAAAA.
It is presumed a federal act does not preempt the historic police powers of the States unless
that was the clear and manifest purpose of Congress.!® That presumption is particularly strong
when Congress has legislated in a field traditionally occupied by the States, Altria Grp., Inc. v.
Good, 555 U.S. 70, 77 (2008), such as promoting public safety through tort law, Medtronic, Inc.
v. Lohr, 518 U.S. 470, 475 (1996). It is unlikely Congress would preempt common law claims
without providing a federal remedy for persons injured by negligent conduct.!” Accordingly, if the
act is susceptible of more than one plausible reading, the court will accept the reading that disfavors
preemption. '*
There is a plethora of authority that indicates the FAAAA does not preempt personal injury
claims against transportation brokers based on negligent selection of motor carriers:
. The U.S. Supreme Court has indicated the Airline Deregulation Act (“ADA”), after which
the FAAAA was modeled.!9
The U.S. Circuit Courts have held the ADA does not preempt personal injury claims.”
The Texas Supreme Court has held the ADA does not preempt personal injury claims.”!
In Miller v. C.H. Robinson Worldwide, Inc., the only U.S. Circuit Court to address the issue
6 City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S. 424, 432 (2002).
"7 Silkwood v. Kerr-Megee Corp., 464 U.S. 238, 251 (1984).
18 Altria Grp., 555 US. at 77.
'® Rowe v, N.H. Motor Transp. Ass'n, $52 U.S. 364, 370 (2008), does not preempt common law personal injury
claims, Am. Airlines v. Wolens, 513 U.S. 219, 231 n.7, 234 n.9 (1995).
79 Xiaoyun Lu v. Airtran Airways, Inc., 631 F. App’x 657, 662 (11th Cir. 2015); Branche v. Airtran Airways, Inc.,
342 F.3d 1248, 1258 (11th Cir. 2003); Duncan v. Nw. Airlines, Inc., 208 F.3d 1112, 1115 (9th Cir. 2000); Charas v.
TWA, 160 F.3d 1259, 1265-66 (9th Cir. 1998) (en banc); Hodges v. Delta Airlines, 44 F.3d 334, 336 (5th Cir. 1995)
(en banc); Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1444 nn.13 & 17 (10th Cir. 1993). See also Watson v.
Air Methods Corp., 870 F.3d 812, 819 (8th Cir. 2017); Bower v. EgyptAir Airlines Co., 731 F.3d 85, 95 (Ist Cir.
2013); Taj Mahal Travel v. Delta Airlines, 164 F.3d 186, 194 (3rd Cir. 1998).
2! Continental Airlines v, Kiefer, 920 $.W.2d 274, 282-84 (Tex. 1996).
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR, Page 13 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
held the FAAAA does not preempt negligent selection claims against brokers.”*
The overwhelming majority of U.S. District Courts to address the issue have held the
FAAAA does not preempt negligent selection or personal injury claims against brokers,
and this consensus is even more universal since Miller was decided.
Negligent selection law is not an economic regulation, It does not erect barriers to entry,
impose tariffs, regulate prices, or dictate what commodities a carrier can transport. It is a
general safety law that provides compensation for people injured by those who negligently
hire contractors to perform work for them, This law does not significantly affect the
deregulatory and preemption-related objectives of the FAAAA.
The FAAAA preempts economic regulations, and not common law personal injury claims.
“The sorts of laws that Congress considered when enacting the FAAAA included barriers to entry,
tariffs, price regulations, and laws governing the types of commodities that a carrier could
transport.””? “Congress did not intend to preempt generally applicable state transportation, safety,
welfare, or business rules that do not otherwise regulate prices, routes, or services.””* Congress’s
purpose was not to immunizemotor carriers, brokers and freight-forwarders from personal injury
liability or deprive victims of eighteen-wheeler crashes of a remedy.
A negligent selection claim against a broker neither relates to a broker’s service nor
constitutes the type of enactment or enforcement of state law that is preempted by the FAAAA.
The FAAAA’s preemption clause was modeled after the ADAs, so ADA cases are authoritative in
22.976 F.3d 1016, 1031 (9th Cir, 2020), cert, denied, 142 S.Ct. 2866 (2022).
23 Dilts v. Penske Logistics, LLC, 769 F.3d 637, 644 (9th Cir. 2014) (citing H.R. Conf. Rep. No. 103-677, p. 86
(1994).
4g.
35 Compare Taj Mahal Travel v. Delta Airlines, 164 F.3d 186, 194 (3rd Cir. 1998); Charas v, TWA, 160 F.3d 1259,
1266 (9th Cir. 1998) (en banc); Hodges v. Delta Airlines, 44 F.3d 334, 337-38 (5th Cir. 1995) (en banc).
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 14 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
interpreting the FAAAA.”* To be preempted, the common law cause of action must (1) relate to a
price, route, or service of a broker, and (2) constitute the enactment or enforcement of state law.??
Plaintiff's negligent selection claim satisfies neither of these requirements.
D. Common Law Negligent Selection Claims do not “relate to” a broker’s “service.”
i. Exercising care to avoid injuring third parties is not the “service” brokers
provide.
Some courts construe the term “service” narrowly to mean when and where transportation is
provided.?® Under this definition, “service” is limited to “the prices, schedules, origins and
destinations of the point-to-point transportation of passengers, cargo, or mail.” Other courts
construe “service” more broadly, to mean the bargained-for or anticipated provision of labor from
one party to another.*° This test focuses on the contractual arrangement between the broker and its
customer.*! But even this broad definition of “service” does not result in the preemption of
“virtually everything [a broker] does.”?? The purpose of the preemption provision — to increase
reliance on competitive market forces rather than pervasive economic regulation — “is not served
by interpreting the term ‘services’ to include those aspects of [broker] operations that are not
bargained- for by [brokers] and their [customers].”*? So, for example, “airlines do not compete on
the basis of likelihood of personal injury, i.e., onboard safety, and as such it does not undermine
the pro- competitive purpose of the ADA . . . to permit states to regulate this aspect of air carrier
9934
operations.
26 Rowe, 552 U.S. at 370.
2749 U.S.C. § 14501(c)(1); Am. Airlines v. Wolens, 513 U.S. 219, 226 (1995); Sabre Travel Int'l, Ltd, v. Deutsche
Lufthansa AG, 567 S.W.3d 725, 737 (Tex. 2019); Continental Airlines v. Kiefer, 920 S.W.2d 274, 281 (Tex. 1996).
8 Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1256 (11th Cir, 2003).
9 Charas v. TWA, 160 F.3d 1259, 1261 (9th Cir. 1998) (en banc).
30 Branche, 342 F.3d at 1256-57.
3! See Hodges v. Delta Airlines, 44 F.3d 334, 336 (Sth Cir. 1995) (en banc).
32 Branche, 342 F.3d at 1258.
3d.
3d.
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 15 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
Thus, “[ljaws are more likely to be preempted when they operate at the point where carriers
3935
provide services to customers at specific prices.
“Brokerage or brokerage service is the arranging of transportation or the physical
movement of a motor vehicle or of property. It can be performed on behalf of a motor carrier,
consignor, or consignee.”°* The “service” a broker offers a shipper is to arrange for the
transportation of the shipper’s product to the destination. Just as airlines and their passengers do
not bargain over the exercise of reasonable care, brokers and their customers do not do so.37 No
broker offers a “discount package” for negligent service and a “premium package” that includes
the exercise of reasonable care. So even under the broad definition of “service” employed by the
Fifth Circuit, the exercise of ordinary care is not the “service” that a transportation broker provides
its customer.
Further, nothing in Plaintiff's Petition establishes or indicates that shippers and brokers
bargain over the exercise of reasonable care, or that brokers compete on this basis. So, Landstar
has not established that the exercise of reasonable care in selecting a motor carrier constitutes a
broker Pe
Ss service,” i.¢., that it is a component of “the bargained-for or anticipated provision of
labor from one party to another.”?8
ii. A common law negligent selection claim does not “relate to” a broker’s service.
A law “relates to” a broker’s service if it “has a connection with or reference to” that
service.” Nevertheless, courts do not interpret the preemption provision “with an uncritical
literalism, else for all practical purposes pre-emption would never run its course.“ After all,
3 Dilts v. Penske Logistics, LLC, 769 F.3d 637, 646 (9th Cir. 2014).
36 49 CFR. § 371.2(c).
37 Branche, 342 F.3d at 1258.
38 Id. at 1256-57.
% Rowe, 552 U.S. at 370.
“° Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013).
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 16 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
“everything is related to everything else.”4! Accordingly, “the breadth of the words ‘related to”
does not mean the sky is the limit.*
The general common law of negligence does not expressly refer to brokers’ service. So, it
is only preempted if it has a significant impact on the FAAAA’s ability to achieve its deregulatory
and preemption-related objectives. In Bedoya v, American Eagle Express, 914 F.3d 812 (3rd Cir.
2019), the court distilled from the preemption cases seven factors for evaluating whether a state
law has a significant effect on Congress’s deregulatory and preemption-related objectives. These
factors consider whether the state law:
(1) mentions a broker’s prices, routes, or service;
Q) specifically targets brokers as opposed to all businesses;
@) addresses the broker-customer relationship rather than non-customer-
broker relationships;
@) binds a broker to provide or not provide a particular price, route, or service;
6) affords the broker various avenues to comply with the law;
© creates a patchwork of regulation that erects barriers to entry, imposes
tariffs, or restricts the goods a broker is permitted to arrange to transport;
and
existed in one of the jurisdictions Congress determined lacked laws that
regulate intrastate prices, routes, or service.
Consideration of these factors demonstrates that a negligent selection claim against a
broker does not have a significant effect on Congress’s deregulatory and preemption-related
objectives.
For the first and second factors, negligent selection law is a law of general applicability
that neither (1) mentions brokers’ service nor (2) specifically targets brokers.44 “Laws that are
directed at ‘members of the general public’ and that are not targeted at [brokers] are usually viewed
*' Cal, Trucking Ass'n v. Bonta, 996 F.3d 644, 656 (9th Cir, 2021).
*® Dan’s City, 569 U.S. 251 at 260.
43 Td. at 823.
‘* _ Restatement (Second) of Torts § 411 (Am. Law Inst. 1965); Wardingley v, Ecovyst Catalyst Techs., LLC, 639 F.
Supp 34, 803, 807 (N.D. Ind. Nov. 4, 2022); Ciotola v. Star Transp. & Trucking, LLC, 481 F. Supp. 3d 375, 388
(MD. Pa. 2020).
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 17 of25
RANGER, INC,’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
45
as not having a direct effect on [brokers].
For the third factor, negligent selection law imposes a duty upon the broker that runs to the
injured third party, not a duty running between the broker and the shipper that hires it.4* Laws that
affect the broker’s relationship with third parties, rather than its customer, are generally not
preempted.*”
For the fourth and fifth factors, negligent selection law (1) does not bind the broker to
provide a particular price, route, or service and (2) affords the broker various avenues to comply.*®
The broker may choose to provide or not provide its service in any location, for any price, and
under any conditions it wishes. The common law simply requires the broker to exercise reasonable
care in selecting a motor carrier, and affords it any number of ways to do so.”
For the sixth factor, negligent selection law does not create a patchwork of varying state
regulations. “Courts across the country have uniformly adopted this rule.’*°“Laws that are ‘more
or less nationally uniform,’ are less likely to pose the kind of state law interference FAAAA
preemption seeks to avoid.”>' And even if negligent selection law differed from state to state, it
docs not erect barriers to entry, imposes tariffs, or restrict the goods a broker can arrange to
transport.
For the seventh factor, when the FAAAA was enacted, nine of the ten jurisdictions
Congress determined lacked laws regulating prices, routes, or service permitted recovery for
45 Bedoya, 914 F.3d at 821.
4© Restatement (Second) of Torts § 411 (Am. Law Inst. 1965),
47 Bedoya, 914 F.3d at 821.
48 Ciotola, 481 F. Supp. 3d at 389.
* Restatement (Second) of Torts § 411 cmt. c (Am. Law Inst. 1965) (“The amount of care which should be
exercised in selecting an independent contractor is that which a reasonable man would exercise under the
circumstances, and therefore varies as the circumstances vary.”).
$9 W. Stock Ctr., Inc. v. Sevit, Inc., 578 P.2d 1045, 1048 (Colo. 1978).
3! Bedoya, 914 F.3d at 823,
3 See id.
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 18 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
negligent selection of an independent contractor. “By implication, Congress determined that the
laws then in existence in those jurisdictions did not contravene its deregulatory goals and thus were
not preempted.”5?
Accordingly, the common law tort of negligent selection affects a broker’s service too
remotely, peripherally or tenuously to be preempted. As the Texas Supreme Court has explained,
“Common-law negligence actions to recover damages for personal injuries do not impinge in any
Sd
significant way on Congress’ concern.’
E. Holding a Broker Liable for Negligently Selecting a Motor Carrier under the State’
Common Law is Not “Enacting or Enforcing” the State Law.
Whether a common law claim constitutes “enforcement of state law” depends upon a
number of factors. One factor is whether the federal law evidences any intent to “channel into
federal courts the business of resolving [such claims] pursuant to a judicially fashioned federal
common law.”5> The Motor Carrier Act and the FAAAA provide no federal remedy for motorists
injured by brokers who negligently hire dangerous motor carriers, And the FMCSRs contain no
safety- related regulations governing the conduct of brokers, They merely impose record keeping
and accounting requirements, 49 C.F.R. §§ 371.3, 371.10, 371.13, prohibit a broker from using a
false name or representing that it is a motor carrier, id. § 371.7, and prohibit a broker from
brokering its own shipments and giving its customers bribes or rebates, id. § 371.9. So, this factor
indicates that permitting recovery for negligent sclection of an independent contractor is not the
type of “enforcement” of state law that is prohibited by the FAAAA.
Another factor is whether the DOT is well-suited to try such common law claims.** “The
53 Bedoya, 914 F.3d at 819,
54 See Cont'l Airlines v. Kiefer, 920 $.W.2d 274, 282 (Tex. 1996),
35 Kiefer, 920 S.W.2d at 281.
56 Kiefer, 920 S.W.2d at 281.
PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 19 of 25
RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT
DOT is no more suited to try common-law negligence actions than it is to enforce private
contracts.”>” Nor is it “plausible that Congress meant to channel into federal courts the business of
resolving, pursuant to judicially fashioned federal common law,” negligent selection claims
against brokers.** So, this factor also indicates that negligent selection claims are not preempted
“enforcement” of state law.
But the most important factor is whether the state law at issue “effectuate[s] purposes that
could have a prohibited regulatory effect” on brokers.®* The more substantially a state’s common
law rule is designed to promote a local state public regulatory policy with respect to brokers’
services, and the more varied the common law rule is among the several states, the more likely it
will be preempted. Conversely, the more policy-neutral the common law rule is, and the less
varied the states’ individual common law rules are, the less likely it will be preempted.” “[C]laims
are not preempted if they do not involve the enforcement of policy-laden state law that too closely
approaches a regulatory effect on” brokers. Thus, “the proper inquiry is whether a common law
tort remedy frustrates deregulation by interfering with competition through public utility-style
regulation. When state law does not have a regulatory effect, it is ‘too tenuous, remote or
peripheral’ to be preempted.”
In Continental Airlines v. Kiefer, the Texas Supreme Court held that the ADA did not
preempt a personal injury claim. Kiefer was a consolidated appeal of two cases. In one, the
7 Id,
38 See id.
$9 Td. at 281-82.
© Id. at 282.
5! Ig,
® Sabre Travel Int'l, Lid. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 741 (Tex. 2019) (quoting Kiefer, 920 S.W.2d
at 283).
® Bower v, EgyptAir Airlines Co., 731 F.3d 85, 96 (1 Cir. 2013); Taj Mahal Travel v. Delta Airlines, 164 F.3d 186,
194 (3rd Cir. 199
Preview
FILED : 26/2024 3. 15 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY | CAUSE NO. DC-22-15461 PABLO BENAVIDES, IN THE DISTRICT COURT Plaintiff ¥. 44TH JUDICIAL DISTRICT AWET WELDEMICHAEL, SMS LOGISTIC LLC, CRUM TRUCKING, INC., CRUM LOGISTICS SERVICES, INC., VALEO NORTH AMERICA, INC., NATIONWIDE EXPEDITING & LOGISTICS, LLC, YOHANNIS REDA, LANDSTAR SYSTEM, INC., S.A. FREIGHT INTERNATIONAL, INC., and LANDSTAR RANGER, INC., Defendants, DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Plaintiff Pablo Benavides and files this Response in Opposition to Defendant Landstar Ranger, ine,’ Traditional Motion for Summary Judgment and Defendant Landstar Ranger, Inc.’s Second Traditional Motion for Summary Judgment pursuant to Texas Rules of Civil Procedure 166a and would show the Court the following: I SUMMARY OF RESPONSE Defendant Landstar Ranger, Inc. (“Defendant” or “Landstar”) filed Motions for traditional summary judgment on the allegations that Defendant is entitled to summary judgment as a matter of law on Plaintiff's claims against Landstar Ranger, Inc. However, Landstar has failed to conclusively establish their entitlement to judgment as a matter of law because they fail to disprove as a matter of law any element of the Plaintiff's causes of action. PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 1 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT il. FACTUAL ALLEGATIONS AND BACKGROUND This case arises from a motor vehicle collision that occurred on August 30, 2021 when Plaintiff was driving a vehicle that was struck from behind Defendant driver Awet Weldemichael. At the time of the collision, Weldemichael was driving his tractor trailer in the course and scope of his employment with Defendants SMS Logistic LLC, Crum Trucking, Inc., Crum Logistics Services, Inc., Valeo North America, Inc., Nationwide Expediting & Logistics, LLC, Yohannis Reda, and the Landstar Defendants. Defendant Awet Weldemichael failed to control his speed and crashed into Plaintiff. Plaintiff sustained severe injuries as a result of the collision and negligence f of Defendants. As a result of the collision, Plaintiff suffered severe injuries. oF BENAVIDES 0204 vale en ht ot Pee gene HES oe‘ey te ee Pi (fi ane Soy 4i PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 2 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT This case was originally filed on November 4, 2022, and is currently set for jury trial on September 3, 2024, Defendants Awet Weldemichael (18-wheeler driver), SMS Logistic LLC (trucking company), and Crum Trucking, Inc. (purported owner of the trailer) were the initial Defendants. Through Disclosures and written discovery, a Master Logistics Services Agreement was produced between Crum Logistics Services, Inc. and Valeo North America, Inc. for Crum Logistics Services, Inc. to provide transportation services for Valeo North America. As a result of this new information, the Petition was amended and Crum Logistics Services, Inc. and Valeo North America, Inc. were brought into the suit as Defendants, Through additional written discovery and Disclosures, Crum Trucking, Inc. indicated that Nationwide Expediting & Logistics, LLC is a potential responsible third party; and SMS Logistic indicated Yohannis Reda was the actual owner of the tractor, not SMS Logistic LLC. Consequently, the petition was amended again to add Nationwide Expediting & Logistics, LLC and Yohannis Reda as Defendants. On July 26, 2023, shortly after Nationwide Expediting & Logistics, LLC were brought in, Nationwide Expediting & Logistics, LLC filed a Motion to Designate Responsible Third Party and named three (3) additional entities in connection with this lawsuit: Landstar System, Inc., Landstar KHR Agency, and SA Freight International, Inc. (collectively referred to as “Landstar”). (See Exhibit A). Through Nationwide’s Disclosures, emails between Landstar and Nationwide were produced relating to the wreck at issue. (See Exhibit B). As a result of this new information, the Petition was amended again to bring in all of the Landstar Defendants. Landstar Ranger, Inc. filed its motions for summary judgment on January 16, 2024 and January 30, 2024. Plaintiff now responds and disagrees with Defendant’s arguments and assertions PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 3 of25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT based on the foregoing, and as such would ask this Court to DENY Defendant’s motions for traditional summary judgment. ‘Currently, the depositions of Defendant Driver Awet Weldemichael and the Designated Corporative Representative/Owner of SMS Logistic LLC, Samuel Mehari, have been Noticed for March 13, 2024 after being Quashed and/or rescheduled at least four (4) times since the summer of 2023. (See Exhibits C and D). on he 5 ai) y ea oe = st Wi. EVIDENCE AGAINST SUMMARY JUDGEMENT In support of his response, Plaintiff relies on the following exhibits which are attached and incorporated by reference and Plaintiff intends to rely upon these documents in response to PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 4 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT ee Defendant’s motions for summary judgment: Exhibit - A: Defendant Nationwide Expediting & Logistic, LLC’s Motion to Designate Responsible Third Parties; Exhibit - B: Defendant Nationwide Expediting & Logistics, LLC’s Initial Disclosure Responses; Exhibit - C: Third Amended Notice of Deposition of Defendant Awet Weldemichael; Exhibit - D: Third Amended Notice of Intention to Take The Video/Oral Deposition of Samuel Mehari, the Designated Corporate Representative for SMS Logistic LLC; Exhibit - E Agreed Scheduling Order for September 3, 2024 Trial; Exhibit - F: Affidavit of Scott Ray (January 30, 2024); Exhibit - G: Defendant Landstar Ranger, Inc.’s Responses to Requests for Production with Production; Exhibit - H. Plaintiff's Fifth Amended Petition; Exhibit - I: Application for Employment of Awet Weldemichael; Exhibit - J: Additional Email Correspondences Between Landstar and Defendants; Iv. TRADITIONAL SUMMARY JUDGMENT STANDARD The party moving for summary judgment has the burden to show there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law.! After the movant has established a right to summary judgment, the burden of proof then shifts to the non-moving party to present evidence creating a fact issue.” The evidence presented by both parties is viewed in light most favorable to the non-moving party ' TEX. R. CIV. P. 166a(c); Rhone-Poulene, Inc. v. Steel, 997 $.W.2d 217, 222 (Tex. 1999) (citing Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972) ? Kang v. Hyundai Corp., 992 §.W.2d 499, 501 (Tex. App.—Dallas 1999, no pet.) 3 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006); Timpte Indus. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 5 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT Vv. ARGUMENT & AUTHORITIES A. There has not been sufficient time for Discovery for Plaintiff's claim of direct negligence (negligent hiring and selection) and gross negligence against Landstar Ranger, Inc. and Defendant Landstar Ranger, Inc. has failed to produce the Transportation Brokerage Agreement in Discovery or in their Motions for Summary Judgment. Under the current Agreed Scheduling Order, the discovery deadline for all parties is July 5, 2024 (60 days before trial). (See Exhibit E). Therefore, there has not been an adequate time for discovery against Defendant Landstar Ranger, Inc. as Defendant had just entered the lawsuit in August of 2023. Currently, the depositions of Defendant Driver Awet Weldemichael and the Designated Corporative Representative/Owner of SMS Logistic LLC, Samuel Mehari, have been Noticed for March 13, 2024 after being Quashed and/or rescheduled at least four (4) times since the summer of 2023. (See Exhibits C and D). These depositions will be key in determining the extent of Defendant Landstar Ranger, Inc.’s involvement with Defendants SMS Logistic LLC and Defendant Driver Awet Weldemichael leading up the collision at issue that forms the basis of this lawsuit. Further, Defendant Landstar Ranger, Inc. has not yet produced the alluded-to “Transportation Brokerage Agreement” between SMS Logistic LLC and Landstar Ranger, Inc., but merely makes mentions to it in the Affidavit of Scott Ray dated January 30, 2024. (See Exhibit F). Under Texas Rule of Civil Procedure 166a(c)(i): “... A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.” Tex. R. Civ. P. 166a(c)(i). This “Transportation Brokerage Agreement” is impossible to controvert as Defendant has failed to produce said Agreement, despite Plaintiff's Discovery Requests that specifically request any PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 6 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT Agreements or documents evidencing the relationship between Defendant Landstar Ranger, Inc. and the named Defendants in this lawsuit. (See Exhibit G). Therefore, the Affidavit of Scott Ray dated January 30, 2024 is merely conclusory and summary judgment as to Defendant Landstar Ranger, Inc. should be denied as Defendant has failed to produce the “Transportation Brokerage Agreement” in ongoing discovery to date, nor does Defendant include said Agreement in their Motions for Summary Judgment. B. Negligent Hiring and Negligent Selection Against Landstar Ranger, Inc. To recover under a theory of negligent hiring, “‘a plaintiff must prove that (1) the employer owed a legal duty to protect the employee's actions and (2) the third party's sustained damages were proximately caused by the employer's breach of that duty.” The same must also be proven to successfully prosecute a claim of negligent training or supervision, as emphasized in Moore Freight Servs., Inc. v. Munoz, 545 §.W.3d 85, 98 (Tex. App. 2017). “To successfully prosecute a claim of... retention, a plaintiff is required to show that (1) the employer owed a legal duty to protect third parties from the employee's actions, and (2) the third party sustained damages proximately caused by the employer's breach of that legal duty.” "Although the Texas Supreme Court ‘has not ruled definitively on the existence, elements and scope’ of negligent training and hiring, it has been explained that courts may find employers liable based on the multi-factor test, weighing 'the risk, foreseeability, and likelihood of injury in requiring employers to control employees, versus the burdens on and consequences to employers. ‘ Bedford v. Moore, 166 8.W.3d 454, 463 (Tex. App.-Fort Worth 2005, no pet.) (citing Rosell v. Cent. W. Motor Stages, Inc., 89 8,W.3d 643, 655 (Tex. App.-Dallas 2002, pet. denicd)). 5 Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.—Austin 1998, no pet.). PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR. Page 7 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT and the social utility and realities of the workplace.”* Texas intermediary courts have held that the elements of a cause of action for negligent supervision and training are: (1) The employer owed the plaintiff a legal duty to hire, supervise, train, or retain competent employees; (2) The employer breached that duty; and (3) The breach proximately caused the Plaintiffs' injuries. “To establish a claim for negligent training, a plaintiff must prove that a reasonably prudent employer would have provided training beyond that which was given and that failure to do so n7 caused his injures. Duty is a question of Jaw for the court to decide based upon facts surrounding the occurrence in question.® "In determining whether a duty exists, a court is to consider several interrelated factors such as: (1) the risk involved; (2) the foreseeability' of the risk; (3) likelihood of injury; and (4) the social utility of the actor’s conduct and the magnitude of the burden on the defendant.”” Of all factors considered, foreseeability of the risk is the foremost and dominant consideration.’° "Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others."!! The elements of proximate cause are cause in fact and foreseeability.'? “The test for cause in fact is whether the act or omission was a substantial factor in bringing about the injury without ° See Lozano v. Baylor Univ., 408 F. Supp. 3d 861, 895 (W.D. Tex. 2019) (citing Pagayon v. Exxon Mobil Corp, 536 S.W.3d 499, 505-506. 7 Dangerfield v. Ormsby, 264 S.W.3d 904. 912 (Tex. App.—Fort Worth 2008, no pet.) (citations omitted), 8 Davis—Lynch, Inc. v. Asgard Te ‘echnologies, LLC, 472 S.W.3d. 50, 64 (Tex. App.—Houston ['14th Dist.] 2015, no pet) (citing Greater Houston Transportation Co. v. Philips 801 S.W.2d 523, 525 (Tex. 1990). 10 Id. '\ Jd, (citing Missouri Pac. R.R. Co. v. Am, Statesman. 552 8.W.2d 99, 103 (Tex. 1997). ” See Douglas v. Hardy, 600 S.W.3d 358, 368 (Tex. App.—Tyler 2019, no pet). PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 8 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT which the harm would not have occurred.”!? “Harm is foreseeable if a person of ordinary intelligence should have anticipated the danger created by an act or omission,"!* In Plaintiff's Fifth Amended Petition, Plaintiff pled that: “[t]his negligence in hiring was caused by these Defendants’ failure to adequately investigate and screen a motor carrier such as SMS Logistic and its drivers prior to hiring them to haul the load at issue, and this failure proximately caused Plaintiff's injuries.” (See ExhibitH). This encompasses the negligent selection cause of action and puts Defendant Landstar Ranger, Inc. on notice of Plaintiff's claims. A person employing an independent contractor is required to use ordinary care in hiring the contractor.”!* With respect to Plaintiff's negligent selection claim against Landstar, Landstar was negligent in hiring SMS Logistic LLC as a motor carrier to transport the Shipment because it failed to conduct a reasonable investigation to assure itself that SMS Logistic LLC had reasonable policies, procedures and practices to ensure that SMS Logistic LLC operated as a safe motor carrier and that SMS Logistic LLC had adequate policies and procedures in place for training safe drivers. Landstar’s negligent selection of SMS Logistic, LLC led to the negligent selection, training, retention, and supervision of Defendant Driver Awet Weldemichael. Therefore, a reasonably prudent person/company such as Landstar would have investigated what procedures SMS Logistic LLC had adopted. Defendant Awet Weldemichael had been hired on August 23, 2021 — literally one (1) week before the collision at issue occurred on August 30, 2021. (See Exhibit ID). Defendant Awet Weldemichael had just been issued his Commercial Drivers License on July 30, 2021, amere month before the collision at issue. (See Exhibit ), Defendant Landstar should have properly vetted the 3g 14 Ig. 'S Mireles v, Ashley, 201 S.W.3d 779, 782 (Tex. App. --Amarillo 2006, no pet.). PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 9 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT motor carrier SMS Logistic LLC to ensure that the motor carrier was properly vetting and hiring drivers to drive under its DOT operating authority. Defendant Landstar through the Affidavit of Scott Ray dated January 30, 2024 claims that Landstar Ranger, Inc. “did not provide any instructions on the route to be used, the time to pick or deliver the load, the manner the driver would operate the vehicle or the details of the driver’s employment with SMS Logistics, LLC.” (See Exhibit F’). Yet, in the Landstar Load Confirmation, it clearly dictates that drivers must check in every morning with Landstar, upon arrival and departure, noting the exclusive use of equipment, needing to notify Landstar of any issues, etc.: LAR STAR se LANDSTAR LOAD CONFIRMATION FB #: 9450389 EFFECTIVE DATE: 83012021 CARRIER: SMS LOGISTIC LLC. EQUIPMENT: CARRIER@: 998734 RGR-KER COMMODITY: CONSUMER GOODS OR DRIVER: SIGN THIS: APPLIANCES DIMENSION: DRIVER CELL: [DOCUMENT WEIGHT: 35000 CONTACT: SAMUEL MEHARI High Rist: PIECES: PHONE: (463) 226-1213 TARP: IDITIGNAT TOTAL CARRIER PAYS ALL INCLUSIVE. INSTRUCTIONS: Check calls are required Drivers mus! t call LANOSTAR yy This fs the exclusive use of pon areal and 8 am CST. Failure to do so will result departure int unless otherwise noted. of each shi signe in a $250 fine, g paint and must call upon arrivalat destination, can break a seal. Failure to do so will result in a fine. LANDSTAR must be notified of any overages, shortages, or damaged products immediately upon delivery. Failure ta do ‘S90 will result in a. 50% fine, LANDSTAR must be made aware of any problems during transit that may result in a delay in delivery! missed pick up. Failure to do so will result in a 50% fine, Broker or the Customer for any freight loss, damage or delay. Unloading must be repa itedteumin ‘The carviar shall be liable to LANDSTAR for all economic loss, including consequential that are incurred by within 2 hrs. The drivermust call upon arrival at the shipperand receiver a departure of the shipper and receiver along with the pieces, weight, st BOL and POD information, Failure to do so will result in a 50% fine. Loading/unioading receipts must be ied within 24 hours or they won't POD must be emailed or faxed within 24 hrs, failure to do so will result in a Co-Defendant Nationwide also provided a “Load Confirmation” between itself and listing Landstar Ranger, Inc. as the motor carrier: PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 10 of 25. RANGER, INC,’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT Bg LOAD CONFIRMATION Laadt ony Date 03072021 YaTroeIDe ExELONTING: Equi Power Only Equipment Length a” 6030 Kemupsford Cr. Weight 35000 Hi Kemersville, NC 27284 Commodity ‘Dry Goods (General) Docket: MC10S5217 Bismils, Phone: 336-310-1870 Fax; 336-310-1869 Carrier Information LANDSTAR RANGER, INC. MICNamber DECOM ERIE Driver Driver not set 10 SUTTON PARK DRIVE SOUTH. Primary Contact Tony Wood Phane TACRSONVELE, F324 Phone 9721674117 33 972-362-1117 802 Fax Notes and References Rots ‘Trace S491 Oram ler ck up Please This naa ey rmeteced te pictep o delivery may cesult in a mnicaum S250 ae Fe, Please eal owe Truckload Depart 336-310-1870 famed Wh ty ptt nse i cele navd Gow he ‘This is am evctasive lnad nud CAN NOT be pir with any other fre (See Exhibit B) In the Affidavit of Scott Ray dated January 30, 2024, Landstar even admits that “a Load Confirmation Sheet is in error because Landstar Ranger, Inc. was not a motor carrier for purposes of the transaction.” (See Exhibit F). This mistake alone creates a genuine issue of material fact that should be presented to the trier of fact, the jury. Not only that, “Transportation Brokerage Agreement” that the Affidavit of Scott Ray dated January 30, 2024 continuously refers to has not been produced to Plaintiff, nor was it even attached as an exhibit to Landstar’s Motions for Summary Judgment. This is crucial evidence that needs to be turned over in discovery, and Plaintiff has already requested such agreement(s). (See Exhibit G) Additionally, in the Affidavit of Scott Ray dated January 30, 2024, it is alleged that “Landstar Ranger, Inc., had no communication with SMS Logistics, LLC or with the driver,” yet this is directly controverted with the many email correspondences between Landstar representative David Hill and other Defendants in this case, including the company and/or driver at issue PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page [1 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT Frony: David <)£933170-67b7-4858-a924-nd39b 1839721 B0e3@ascendims com> Sent: Tuesday, August 34, 2021 10:15 AM To: Katle Ellis Subject: Re: Document(s} from Nationwide Expediting and Logistics, LLC - toad #62227 {just talked to the driver, He told me they are having some tosues with a cadlator and they are fixing it now but they are in San Antonio now On Tue, Aug 31, 2021 at 8:57 AM Katle Ellis (Nationwide Expediting and Logistics, ULC) <£433270- ‘SIDZ-SBS9-9924-bd3951839221-25R4@ascendims com> wrote: ‘What is sta on delivery j From: David <1{332170-67b7.4ns9-a92¢-bdi9bI83 @ascondims 9721-80e3com> Sent: Monday, August30, 20214:57 PM ‘To: Katie Ellis Subject: Re: Document(s) fram Nationwide Expediting and Logistics, LLC - Load #62227 ‘The delvers were loaded and on their wayto the receiver ‘MH, 30 aor. 2021 r. 21:58, Katie Ellis (Nationwide Expediting and Logistics, LLC} <1f333370-67b7- <, < | Heltat | Pleasa respond to this email if you do not receive, are unableta open, or have any questions about the attached file(s) ‘This is the correct Rate con for dentention ‘This is the correct load for the detention Attached Documents: Carrier confirmation Thanks, Nationvide Expediting and Logistics, ttc Ovid H Landstar KHR Agency [$4 Freight ‘San Antonio, TK PACREGO9ED SCAT; LRGR Office # 230-428-0073 ext, 265 Fax #1 832-634-2876 Savid@kbragency com [Af you yond like to share your feediack, have any comments, or need sey astistance gli keret David H Landstar KHR Agency | SA Freight San Antonio, T% MC#166950 SCAC: LAGR Office # 830-428-0073 ext. 265. Fax # 832-694-4876 david@hhrageawsom 1t you would Hike to share you feedback, hare any comments. or need any assistance -rlickhere! (See Exhibits B and J). Therefore, there is a genuine issue of material fact at issue as to Plaintiffs negligent hiring and negligent selection claims against Defendant Landstar, and summary judgment should be denied to Defendant Landstar. PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 12 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT C. Plaintiff's Negligent Selection and/or Hiring Claims Are Not Preempted by the FAAAA. It is presumed a federal act does not preempt the historic police powers of the States unless that was the clear and manifest purpose of Congress.!® That presumption is particularly strong when Congress has legislated in a field traditionally occupied by the States, Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008), such as promoting public safety through tort law, Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996). It is unlikely Congress would preempt common law claims without providing a federal remedy for persons injured by negligent conduct.!” Accordingly, if the act is susceptible of more than one plausible reading, the court will accept the reading that disfavors preemption. '* There is a plethora of authority that indicates the FAAAA does not preempt personal injury claims against transportation brokers based on negligent selection of motor carriers: . The U.S. Supreme Court has indicated the Airline Deregulation Act (“ADA”), after which the FAAAA was modeled.!9 The U.S. Circuit Courts have held the ADA does not preempt personal injury claims.” The Texas Supreme Court has held the ADA does not preempt personal injury claims.”! In Miller v. C.H. Robinson Worldwide, Inc., the only U.S. Circuit Court to address the issue 6 City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S. 424, 432 (2002). "7 Silkwood v. Kerr-Megee Corp., 464 U.S. 238, 251 (1984). 18 Altria Grp., 555 US. at 77. '® Rowe v, N.H. Motor Transp. Ass'n, $52 U.S. 364, 370 (2008), does not preempt common law personal injury claims, Am. Airlines v. Wolens, 513 U.S. 219, 231 n.7, 234 n.9 (1995). 79 Xiaoyun Lu v. Airtran Airways, Inc., 631 F. App’x 657, 662 (11th Cir. 2015); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1258 (11th Cir. 2003); Duncan v. Nw. Airlines, Inc., 208 F.3d 1112, 1115 (9th Cir. 2000); Charas v. TWA, 160 F.3d 1259, 1265-66 (9th Cir. 1998) (en banc); Hodges v. Delta Airlines, 44 F.3d 334, 336 (5th Cir. 1995) (en banc); Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1444 nn.13 & 17 (10th Cir. 1993). See also Watson v. Air Methods Corp., 870 F.3d 812, 819 (8th Cir. 2017); Bower v. EgyptAir Airlines Co., 731 F.3d 85, 95 (Ist Cir. 2013); Taj Mahal Travel v. Delta Airlines, 164 F.3d 186, 194 (3rd Cir. 1998). 2! Continental Airlines v, Kiefer, 920 $.W.2d 274, 282-84 (Tex. 1996). PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR, Page 13 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT held the FAAAA does not preempt negligent selection claims against brokers.”* The overwhelming majority of U.S. District Courts to address the issue have held the FAAAA does not preempt negligent selection or personal injury claims against brokers, and this consensus is even more universal since Miller was decided. Negligent selection law is not an economic regulation, It does not erect barriers to entry, impose tariffs, regulate prices, or dictate what commodities a carrier can transport. It is a general safety law that provides compensation for people injured by those who negligently hire contractors to perform work for them, This law does not significantly affect the deregulatory and preemption-related objectives of the FAAAA. The FAAAA preempts economic regulations, and not common law personal injury claims. “The sorts of laws that Congress considered when enacting the FAAAA included barriers to entry, tariffs, price regulations, and laws governing the types of commodities that a carrier could transport.””? “Congress did not intend to preempt generally applicable state transportation, safety, welfare, or business rules that do not otherwise regulate prices, routes, or services.””* Congress’s purpose was not to immunizemotor carriers, brokers and freight-forwarders from personal injury liability or deprive victims of eighteen-wheeler crashes of a remedy. A negligent selection claim against a broker neither relates to a broker’s service nor constitutes the type of enactment or enforcement of state law that is preempted by the FAAAA. The FAAAA’s preemption clause was modeled after the ADAs, so ADA cases are authoritative in 22.976 F.3d 1016, 1031 (9th Cir, 2020), cert, denied, 142 S.Ct. 2866 (2022). 23 Dilts v. Penske Logistics, LLC, 769 F.3d 637, 644 (9th Cir. 2014) (citing H.R. Conf. Rep. No. 103-677, p. 86 (1994). 4g. 35 Compare Taj Mahal Travel v. Delta Airlines, 164 F.3d 186, 194 (3rd Cir. 1998); Charas v, TWA, 160 F.3d 1259, 1266 (9th Cir. 1998) (en banc); Hodges v. Delta Airlines, 44 F.3d 334, 337-38 (5th Cir. 1995) (en banc). PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 14 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT interpreting the FAAAA.”* To be preempted, the common law cause of action must (1) relate to a price, route, or service of a broker, and (2) constitute the enactment or enforcement of state law.?? Plaintiff's negligent selection claim satisfies neither of these requirements. D. Common Law Negligent Selection Claims do not “relate to” a broker’s “service.” i. Exercising care to avoid injuring third parties is not the “service” brokers provide. Some courts construe the term “service” narrowly to mean when and where transportation is provided.?® Under this definition, “service” is limited to “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.” Other courts construe “service” more broadly, to mean the bargained-for or anticipated provision of labor from one party to another.*° This test focuses on the contractual arrangement between the broker and its customer.*! But even this broad definition of “service” does not result in the preemption of “virtually everything [a broker] does.”?? The purpose of the preemption provision — to increase reliance on competitive market forces rather than pervasive economic regulation — “is not served by interpreting the term ‘services’ to include those aspects of [broker] operations that are not bargained- for by [brokers] and their [customers].”*? So, for example, “airlines do not compete on the basis of likelihood of personal injury, i.e., onboard safety, and as such it does not undermine the pro- competitive purpose of the ADA . . . to permit states to regulate this aspect of air carrier 9934 operations. 26 Rowe, 552 U.S. at 370. 2749 U.S.C. § 14501(c)(1); Am. Airlines v. Wolens, 513 U.S. 219, 226 (1995); Sabre Travel Int'l, Ltd, v. Deutsche Lufthansa AG, 567 S.W.3d 725, 737 (Tex. 2019); Continental Airlines v. Kiefer, 920 S.W.2d 274, 281 (Tex. 1996). 8 Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1256 (11th Cir, 2003). 9 Charas v. TWA, 160 F.3d 1259, 1261 (9th Cir. 1998) (en banc). 30 Branche, 342 F.3d at 1256-57. 3! See Hodges v. Delta Airlines, 44 F.3d 334, 336 (Sth Cir. 1995) (en banc). 32 Branche, 342 F.3d at 1258. 3d. 3d. PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 15 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT Thus, “[ljaws are more likely to be preempted when they operate at the point where carriers 3935 provide services to customers at specific prices. “Brokerage or brokerage service is the arranging of transportation or the physical movement of a motor vehicle or of property. It can be performed on behalf of a motor carrier, consignor, or consignee.”°* The “service” a broker offers a shipper is to arrange for the transportation of the shipper’s product to the destination. Just as airlines and their passengers do not bargain over the exercise of reasonable care, brokers and their customers do not do so.37 No broker offers a “discount package” for negligent service and a “premium package” that includes the exercise of reasonable care. So even under the broad definition of “service” employed by the Fifth Circuit, the exercise of ordinary care is not the “service” that a transportation broker provides its customer. Further, nothing in Plaintiff's Petition establishes or indicates that shippers and brokers bargain over the exercise of reasonable care, or that brokers compete on this basis. So, Landstar has not established that the exercise of reasonable care in selecting a motor carrier constitutes a broker Pe Ss service,” i.¢., that it is a component of “the bargained-for or anticipated provision of labor from one party to another.”?8 ii. A common law negligent selection claim does not “relate to” a broker’s service. A law “relates to” a broker’s service if it “has a connection with or reference to” that service.” Nevertheless, courts do not interpret the preemption provision “with an uncritical literalism, else for all practical purposes pre-emption would never run its course.“ After all, 3 Dilts v. Penske Logistics, LLC, 769 F.3d 637, 646 (9th Cir. 2014). 36 49 CFR. § 371.2(c). 37 Branche, 342 F.3d at 1258. 38 Id. at 1256-57. % Rowe, 552 U.S. at 370. “° Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013). PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 16 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT “everything is related to everything else.”4! Accordingly, “the breadth of the words ‘related to” does not mean the sky is the limit.* The general common law of negligence does not expressly refer to brokers’ service. So, it is only preempted if it has a significant impact on the FAAAA’s ability to achieve its deregulatory and preemption-related objectives. In Bedoya v, American Eagle Express, 914 F.3d 812 (3rd Cir. 2019), the court distilled from the preemption cases seven factors for evaluating whether a state law has a significant effect on Congress’s deregulatory and preemption-related objectives. These factors consider whether the state law: (1) mentions a broker’s prices, routes, or service; Q) specifically targets brokers as opposed to all businesses; @) addresses the broker-customer relationship rather than non-customer- broker relationships; @) binds a broker to provide or not provide a particular price, route, or service; 6) affords the broker various avenues to comply with the law; © creates a patchwork of regulation that erects barriers to entry, imposes tariffs, or restricts the goods a broker is permitted to arrange to transport; and existed in one of the jurisdictions Congress determined lacked laws that regulate intrastate prices, routes, or service. Consideration of these factors demonstrates that a negligent selection claim against a broker does not have a significant effect on Congress’s deregulatory and preemption-related objectives. For the first and second factors, negligent selection law is a law of general applicability that neither (1) mentions brokers’ service nor (2) specifically targets brokers.44 “Laws that are directed at ‘members of the general public’ and that are not targeted at [brokers] are usually viewed *' Cal, Trucking Ass'n v. Bonta, 996 F.3d 644, 656 (9th Cir, 2021). *® Dan’s City, 569 U.S. 251 at 260. 43 Td. at 823. ‘* _ Restatement (Second) of Torts § 411 (Am. Law Inst. 1965); Wardingley v, Ecovyst Catalyst Techs., LLC, 639 F. Supp 34, 803, 807 (N.D. Ind. Nov. 4, 2022); Ciotola v. Star Transp. & Trucking, LLC, 481 F. Supp. 3d 375, 388 (MD. Pa. 2020). PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 17 of25 RANGER, INC,’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT 45 as not having a direct effect on [brokers]. For the third factor, negligent selection law imposes a duty upon the broker that runs to the injured third party, not a duty running between the broker and the shipper that hires it.4* Laws that affect the broker’s relationship with third parties, rather than its customer, are generally not preempted.*” For the fourth and fifth factors, negligent selection law (1) does not bind the broker to provide a particular price, route, or service and (2) affords the broker various avenues to comply.*® The broker may choose to provide or not provide its service in any location, for any price, and under any conditions it wishes. The common law simply requires the broker to exercise reasonable care in selecting a motor carrier, and affords it any number of ways to do so.” For the sixth factor, negligent selection law does not create a patchwork of varying state regulations. “Courts across the country have uniformly adopted this rule.’*°“Laws that are ‘more or less nationally uniform,’ are less likely to pose the kind of state law interference FAAAA preemption seeks to avoid.”>' And even if negligent selection law differed from state to state, it docs not erect barriers to entry, imposes tariffs, or restrict the goods a broker can arrange to transport. For the seventh factor, when the FAAAA was enacted, nine of the ten jurisdictions Congress determined lacked laws regulating prices, routes, or service permitted recovery for 45 Bedoya, 914 F.3d at 821. 4© Restatement (Second) of Torts § 411 (Am. Law Inst. 1965), 47 Bedoya, 914 F.3d at 821. 48 Ciotola, 481 F. Supp. 3d at 389. * Restatement (Second) of Torts § 411 cmt. c (Am. Law Inst. 1965) (“The amount of care which should be exercised in selecting an independent contractor is that which a reasonable man would exercise under the circumstances, and therefore varies as the circumstances vary.”). $9 W. Stock Ctr., Inc. v. Sevit, Inc., 578 P.2d 1045, 1048 (Colo. 1978). 3! Bedoya, 914 F.3d at 823, 3 See id. PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 18 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT negligent selection of an independent contractor. “By implication, Congress determined that the laws then in existence in those jurisdictions did not contravene its deregulatory goals and thus were not preempted.”5? Accordingly, the common law tort of negligent selection affects a broker’s service too remotely, peripherally or tenuously to be preempted. As the Texas Supreme Court has explained, “Common-law negligence actions to recover damages for personal injuries do not impinge in any Sd significant way on Congress’ concern.’ E. Holding a Broker Liable for Negligently Selecting a Motor Carrier under the State’ Common Law is Not “Enacting or Enforcing” the State Law. Whether a common law claim constitutes “enforcement of state law” depends upon a number of factors. One factor is whether the federal law evidences any intent to “channel into federal courts the business of resolving [such claims] pursuant to a judicially fashioned federal common law.”5> The Motor Carrier Act and the FAAAA provide no federal remedy for motorists injured by brokers who negligently hire dangerous motor carriers, And the FMCSRs contain no safety- related regulations governing the conduct of brokers, They merely impose record keeping and accounting requirements, 49 C.F.R. §§ 371.3, 371.10, 371.13, prohibit a broker from using a false name or representing that it is a motor carrier, id. § 371.7, and prohibit a broker from brokering its own shipments and giving its customers bribes or rebates, id. § 371.9. So, this factor indicates that permitting recovery for negligent sclection of an independent contractor is not the type of “enforcement” of state law that is prohibited by the FAAAA. Another factor is whether the DOT is well-suited to try such common law claims.** “The 53 Bedoya, 914 F.3d at 819, 54 See Cont'l Airlines v. Kiefer, 920 $.W.2d 274, 282 (Tex. 1996), 35 Kiefer, 920 S.W.2d at 281. 56 Kiefer, 920 S.W.2d at 281. PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT LANDSTAR Page 19 of 25 RANGER, INC.’S TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT DOT is no more suited to try common-law negligence actions than it is to enforce private contracts.”>” Nor is it “plausible that Congress meant to channel into federal courts the business of resolving, pursuant to judicially fashioned federal common law,” negligent selection claims against brokers.** So, this factor also indicates that negligent selection claims are not preempted “enforcement” of state law. But the most important factor is whether the state law at issue “effectuate[s] purposes that could have a prohibited regulatory effect” on brokers.®* The more substantially a state’s common law rule is designed to promote a local state public regulatory policy with respect to brokers’ services, and the more varied the common law rule is among the several states, the more likely it will be preempted. Conversely, the more policy-neutral the common law rule is, and the less varied the states’ individual common law rules are, the less likely it will be preempted.” “[C]laims are not preempted if they do not involve the enforcement of policy-laden state law that too closely approaches a regulatory effect on” brokers. Thus, “the proper inquiry is whether a common law tort remedy frustrates deregulation by interfering with competition through public utility-style regulation. When state law does not have a regulatory effect, it is ‘too tenuous, remote or peripheral’ to be preempted.” In Continental Airlines v. Kiefer, the Texas Supreme Court held that the ADA did not preempt a personal injury claim. Kiefer was a consolidated appeal of two cases. In one, the 7 Id, 38 See id. $9 Td. at 281-82. © Id. at 282. 5! Ig, ® Sabre Travel Int'l, Lid. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 741 (Tex. 2019) (quoting Kiefer, 920 S.W.2d at 283). ® Bower v, EgyptAir Airlines Co., 731 F.3d 85, 96 (1 Cir. 2013); Taj Mahal Travel v. Delta Airlines, 164 F.3d 186, 194 (3rd Cir. 199