Hepler Broom, LLC

Lessons from a Deposition: Insight into One Plaintiff’s Counsel’s Strategy for Establishing Broker Liability

January 8, 2015

As defense counsel in the trucking industry have seen in recent years, broker liability is a burgeoning area in which plaintiff’s attorneys are beginning to explore as a means to reach the elusive “deep pockets” of many of our broker clients. Much of the lure of broker liability began with the $23.8 million judgment against a freight broker that was upheld by an Illinois appellate court in Sperl v. C.H. Robinson Worldwide, Inc., 946 N.E.2d 463 (Ill. App. Ct. 2011). At the most surface level of the issue, the court’s decision in Sperl rested primarily upon the significant “indicia of control” asserted by the broker over the driver. As additional insight into how plaintiff’s attorneys are attempting to expand Sperl’s indicia-of-control holding into other broker-liability scenarios, this post provides a small extract of a recent deposition taken in another Illinois case.

Lessons from a Deposition

In this particular case, plaintiff’s counsel asserted a novel “joint venture” theory of liability based, in part, on Sperl’s “indicia of control” rationale, and eventually counsel characterized the freight broker as acting as part of a venture with the shipper and motor carrier for the sole purpose of shipping the load for profit. To get there, during the deposition of the freight broker’s representative, plaintiff’s counsel examined each of the contracts between the broker and both shipper and carrier. He used language in the contracts to establish that the freight broker had an “interest” in the goods when the broker “receive[d]” the goods under the contract, and managed to get the broker’s representative to testify that, “yes”, the broker “directs the activities” of the carriers. This was because one of the contracts contained the following language: “Contractor will arrange to provide, supervise and control competent, skilled, and properly licensed drivers . . . .” The representative then explained the various ways the broker “monitored” the driver, and thus, walked right into Sperl’s indicia of control.

This, however, is only a small piece of plaintiff’s counsel’s much larger strategy to establish broker liability in this deposition. For a more in-depth analysis that lays out each of these tactics, be on the watch for a future article, “The Bridge to Broker Liability”, in an upcoming issue of In Transit. In the meantime, be aware that plaintiff’s attorneys have and will continue to demonstrate a willingness to push the envelope regarding broker liability. Also, remember to fully prepare a broker’s representative on these particular issues before their deposition because unprepared answers to seemingly innocuous questions may, in fact, provide enough evidence of control to allow the plaintiff to reach your client’s elusive “deep pockets.”