United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant C.H. Robinson's
Motion for Summary Judgment (Doc. 35), Motion to Exclude the
Opinion of Thomas Corsi, Ph.D. (Doc. 40), Motion to Exclude
the Opinions of William Hampton (Doc. 42), and Motion to
Dismiss Defendants A.K. Logistics, Inc. and Sarvar Yuldashev
Pursuant to Rules 12(b)(1) and 21 or, in the Alternative,
Motion in Limine and for other Relief at Trial (Doc. 86).
Also before the Court is Plaintiff Johnny Oscar Riley's
Motion to Exclude the Opinion of Thomas A. Lambert (Doc. 85).
The motions are fully briefed and ready for disposition. For
the following reasons, the Court will grant in part and deny
in part C.H. Robinson's Motion for Summary Judgment,
Motion to Exclude the Opinion of Thomas Corsi, and Motion to
Exclude the Opinions of William Hampton; grant in part and
deny C.H. Robinson's Motion to Dismiss its Co-Defendants;
and grant Riley's Motion to Exclude the Opinion of Thomas
January 16, 2015, Plaintiff initiated this action in the
Circuit Court for the County of New Madrid, Missouri; A.K.
Logistics thereafter removed the matter to this Court (Docs.
1, 1.3). In his complaint, as amended, Riley alleges the
following facts. On October 11, 2014, a tractor-trailer
operated by Defendant Sarvar Yuldashev rear-ended a
motorcycle operated by Riley on Interstate Highway 55 in New
Madrid County, Missouri (“the collision”) (Doc.
51 at 1-2). Riley sustained serious physical injuries in the
collision (Id. at 2-3). According to Riley,
Yuldashev was employed by Defendant A.K. Logistics at the
time of the collision, and the collision and the injuries he
suffered therein were caused by Yuldashev's negligence
and carelessness (Id. at 1-4).
asserts two claims for relief (Id. at 1-6). In Count
I, he seeks compensatory damages from Yuldashev and A.K.
Logistics, alleging that Yuldashev negligently and carelessly
caused the collision and that he did so while acting within
the course and scope of his employment with A.K. Logistics
(Id. at 1-3). In Count II, Riley seeks damages from
C.H. Robinson (Id. at 3-6). Specifically, he alleges
that, at the time of the collision, Yuldashev was delivering
a load (“the load”) for third-party
non-defendants, pursuant to arrangements C.H. Robinson
brokered (Id. at 4). Riley seeks to recover from
C.H. Robinson under three potential theories: (1) that C.H.
Robinson negligently hired A.K. Logistics as an independent
contractor; (2) that C.H. Robinson is vicariously liable for
Yuldashev's negligence because A.K. Logistics was its
agent; and (3) that C.H. Robinson and A.K. Logistics are
jointly liable for his injuries because they were acting in a
joint venture in delivering the load (Id. at 3-6).
C.H. Robinson's Motion for Summary Judgment
Robinson now moves for summary judgment, arguing that it was
not negligent in hiring A.K. Logistics to carry the load,
that it was not in an agency relationship with A.K. Logistics
or Yuldashev at the time of the collision, and that it also
was not in a joint venture with A.K Logistics (Docs. 35-36,
64, 88). Riley opposes the motion, asserting that genuine
disputes of material fact remain as to each of his theories
of recovery (Doc. 47).
Summary Judgment Standard
Court may grant a motion for summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Peterson v. Kopp, 754 F.3d
594, 598 (8th Cir. 2014). A moving party bears the burden of
informing the Court of the basis of its motion. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party discharges this burden, the nonmoving party must
set forth specific facts demonstrating that there is a
dispute as to a genuine issue of material fact, not the
“mere existence of some alleged factual dispute.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
passing on a motion for summary judgment, the Court must view
the facts in the light most favorable to the nonmoving party,
and all justifiable inferences are to be drawn in his favor.
Celotex, 477 U.S. at 331. The Court's function
is not to weigh the evidence but to determine whether there
is a genuine issue for trial. Anderson, 477 U.S. at
249. “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.”
Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000)).
Negligent Hiring of an Independent Contractor
Robinson argues that it is entitled to judgment as a matter
of law to the extent Riley alleges it negligently hired A.K.
Logistics as an independent contractor (Docs. 36 at 2-10; 64
at 2-12). Riley disagrees, arguing that C.H. Robinson
negligently failed to adequately investigate publicly
available information relating to A.K. Logistics' safety
history (Doc. 47 at 2-18).
employer is liable for its independent contractor's
negligent conduct if the employer fails to exercise
reasonable care in hiring a competent independent contractor.
LeBlanc v. Research Belton Hosp., 278 S.W.3d 201,
205-06 (Mo.Ct.App. 2008); Lonero v. Dillick, 208
S.W.3d 323, 329 (Mo.Ct.App. 2006) (citing Sullivan v. St.
Louis Station Assocs., 770 S.W.2d 352, 356 (Mo.Ct.App.
1989)). An employer has a duty to hire a “skilled and
competent contractor.” Lonero, 208 S.W.3d at
329 (citing Sullivan, 770 S.W.2d at 356). A
competent and careful contractor has “the knowledge,
skill, experience, and available equipment which a reasonable
person would realize that a contractor must have in order to
do the work which he or she is employed to do without
creating unreasonable risk of injury to others, and who also
possesses the personal characteristics which are equally
necessary.” Lee v. Pulitzer Pub. Co., 81
S.W.3d 625, 635 (Mo.Ct.App. 2002) (citing Restatement
(Second) of Torts § 411 (1965)).
establish a claim for negligent hiring of an independent
contractor, Riley must demonstrate (1) that C.H. Robinson
knew or should have known that A.K. Logistics was incompetent
to carry the load, and (2) that C.H. Robinson's
negligence in hiring A.K. Logistics proximately caused his
injuries. See Gibson v. Brewer, 952 S.W.2d 239, 246
(Mo. 1997); Reed v. Kelly, 37 S.W.3d 274, 277
(Mo.Ct.App. 2000) (citing Gaines v. Monsanto Co.,
655 S.W.2d 568, 570 (Mo.Ct.App. 1983)). “It is well
recognized that a contractor's negligence in conducting
the work it was hired to do creates no presumption that the
employer was negligent in selecting the contractor. One
incident of poor judgment does not prove incompetence.”
Sullivan, 770 S.W.2d at 356 (internal citation
omitted). Moreover, an employer is not liable for the
negligence of its independent contractor, notwithstanding any
lack of care it took in selecting the contractor, if the
contractor hired was in fact competent. Lonero, 208
S.W.3d at 329 (citing Sullivan, 770 S.W.2d at 356).
Robinson asserts that A.K. Logistics and Yuldashev were
competent; that to the extent they were not competent, it did
not and could not have reasonably known of their
incompetence; and that Riley cannot show that their alleged
incompetence proximately caused the collision or his injuries
(Doc. 36 at 2-10). As to Yuldashev's competence, C.H.
Robinson notes that he had a valid commercial driver's
license, that there is no evidence his license had ever been
suspended or revoked, that he passed a road test before he
was permitted to drive for A.K. Logistics, that he had been
driving for A.K. Logistics for a period of two to three years
before the collision, that he had not been involved in any
accidents previously, and that the president of A.K.
Logistics believed he was reliable (Id. at 4).
Robinson argues that A.K. Logistics was qualified to carry
the load because it had liability insurance, was authorized
to operate as a motor carrier, and was unrated by the Federal
Motor Carrier Safety Administration's
(“FMCSA”) motor carrier safety rating system
(Id.). C.H. Robinson also notes that, between
December 2008 and October 2014, A.K. Logistics carried 990
loads for C.H. Robinson customers, and did so without any
indication that it was unsafe or unfit (Id. at 5).
In C.H. Robinson's view, it could not have been negligent
in hiring A.K. Logistics in this case, given its six-year,
incident-free history with the company (Id. at 5-6).
Robinson further contends that it could not have reasonably
known of Yuldashev's or A.K. Logistics' alleged
incompetence (Id. at 6-8). In C.H. Robinson's
view, it reasonably decided, as a matter of company policy,
not to consider Behavior Analysis and Safety Improvement
Categories (“BASIC scores”) when hiring motor
carriers, and more specifically, when it decided to hire A.K.
Logistics (Id. at 6-8). BASIC scores are another
FMCSA measure used to rate motor carriers, in a variety of
categories, including crashes, driver fitness, hours of
service and unsafe driving. Of note, BASIC scores rank
individual motor carriers' safety performance against
other carriers, producing a percentile score in each category
based on how a carrier has performed in comparison to its
Robinson claims that, at the time of the collision, the
FMCSA's publicly accessible website warned that
“[r]eaders should not draw conclusions about a
carrier's overall safety condition simply based on the
data displayed in this system. Unless a motor carrier in the
SMS has received an UNSATISFACTORY safety rating pursuant to
49 C.F.R. Part 385, or has otherwise been ordered to
discontinue operations by the FMCSA, it is authorized to
operate on the nation's roadways.” (Doc. 36 at
6-7). Moreover, C.H. Robinson emphasizes that, in December
2015, Congress passed the FAST Act which stated that the
percentiles reflected in individual BASIC scores “may
not be used for safety fitness determinations” until an
inspector general made certain certifications. Pub. L.
114-94, § 5223(b), 129 Stat. 1312, 1541 (2015). The FAST
Act also removed BASIC scores from public view on the
FMCSA's website. According to C.H. Robinson,
Congress's enactment of the FAST Act confirms the
soundness of its conclusion that BASIC scores are not
reliable indicators of motor carrier safety (Id. at
7). C.H. Robinson argues that it reasonably decided not to
consider BASIC scores when hiring motor carriers to deliver
loads on behalf of its customers, given the scores'
unreliability (Id. at 6-8).
Robinson also argues that Riley cannot link A.K.
Logistics' and Yuldashev's alleged incompetence to
the collision, i.e., that he cannot show that any of A.K.
Logistics' unsafe-driving or hours-of-service violations
proximately caused the collision (Id. at 9-10). C.H.
Robinson does not appear to dispute that A.K. Logistics had a
history of citations for traffic violations between September
2013 and October 2014; however, it argues that there is no
evidence that those citations led to convictions or pleas,
and that there is no evidence that any of the citations were
issued to Yuldashev (Id. at 9). The president of
A.K. Logistics testified at his deposition that Yuldashev did
not receive any citations during that period (Id.).
response, Riley argues that the mere facts that A.K.
Logistics had insurance, operating authority, and an
“unrated” FMCSA rating are insufficient to
establish that it was competent to carry the load (Doc. 47 at
3-19). In Riley's view, A.K. Logistics' status as
FMSCA “unrated” provided no meaningful
information regarding its safety record, as the
“unrated” status meant only that it had not yet
undergone the resource-intensive compliance review of its
safety policies and programs required before the FMSCA
assigns a meaningful rating, i.e., “satisfactory”
or “unsatisfactory.” Riley explains that only 16,
000 of these reviews are completed each year, leaving roughly
480, 000 out of more than 500, 000 motor carriers with an
“unrated” status (Id. at 5-6). In
Riley's view, given A.K. Logistics'
“unrated” status, C.H. Robinson had an obligation
to also review its BASIC scores. Riley emphasizes that, had
C.H. Robinson checked A.K. Logistics' BASIC scores, it
would have learned it was ranked in the lowest 8% of all
motor carriers for safe driving, and in the lowest 11% for
hours of service, and had received a caution flag
(Id. at 7). Riley further contends that, at the time
of the collision, A.K. Logistics' BASIC scores in the
unsafe-driving and hours-of-service categories rendered it a
“high-risk” motor carrier under the BASIC score
system (Id.). He also argues that A.K.
Logistics' BASIC scores reflected that its drivers had 17
unsafe driving violations, that random driver inspections had
revealed 16 additional unsafe driving violations, and that
its drivers had been taken out of service at twice the rate
of the national average (Id. at 7 (citing Docs. 64.7
at 67; 64.11 at 6)).
further argues that as early as 2013, A.K. Logistics'
BASIC scores started to worsen, triggering a
“non-ratable” review by the FMCSA, causing some
brokers to start questioning its president about the scores,
and leading other brokers to stop hiring it at all
(Id. at 7-8). At his deposition, A.K. Logistics'
president testified that A.K. Logistics' insurer canceled
its policy five months before the collision due to its BASIC
scores, that he knew A.K. Logistics' BASIC scores were
“unacceptable, ” but that he knew he could
nevertheless continue to book loads through C.H. Robinson
because it did not check BASIC scores (Id. (citing
Doc. 64.7 at 52, 70, 75)). In Riley's view, these facts
establish that a reasonable broker would have concluded that
A.K. Logistics posed an unreasonable risk to others
(Id. at 9-10). Riley contends that reviewing BASIC
scores before hiring a carrier is standard practice in the
industry (Id. at 10). He also disagrees with C.H.
Robinson's contention that BASIC scores are unreliable,
argues that other brokers who rely on BASIC scores had
refused to hire A.K. Logistics, and has identified two expert
witnesses who are prepared to testify to the scores'
reliability. Riley also disputes the import of the FAST
Act to this case, contending that the Act merely removed
BASIC scores from public view while still allowing motor
carriers and brokers to access them. He also contends that at
the time of the collision, the scores were publicly available
and were widely considered reliable indicators for
identification of high risk carriers (Id. at 11).
also contends that he can establish a causal connection
between A.K. Logistics' incompetence and the collision,
i.e., that C.H. Robinson negligently hired A.K. Logistics, a
carrier it should have known was incompetent, and that A.K.
Logistics' incompetence proximately caused the collision
(Id. at 17-19). In support of this causal
connection, Riley notes that A.K. Logistics' BASIC scores
placed it in the lowest 8% of carriers in the unsafe driving
category, which is based, in part, on incidents of
inattention and improper lane changes; that the Missouri
Highway Patrol concluded that the collision was caused by
Yuldashev's improper lane usage and failure to maintain a
safe distance; and that an accident reconstruction expert,
William Hampton, has opined that the collision was caused by
Yuldashev's unsafe driving, i.e., that he made an
improper lane change and was following Riley too closely
(Id. at 18-19). In Riley's view, there remains a
genuine dispute of fact as to whether there was a causal
connection between C.H. Robinson's negligence in hiring
A.K. Logistics and the collision (Id. at 19).
reply, C.H. Robinson reiterates its arguments in favor of
summary judgment on Riley's negligent-hiring claim (Doc.
64). Moreover, it disputes Riley's contention that A.K.
Logistics' insurance policy was cancelled because of its
deteriorating BASIC scores, insisting that the policy was
cancelled because A.K. Logistics had increased the size of
its fleet beyond the policy limit (Id. at 7 (citing
Doc. 64.1)). It also argues that A.K. Logistics' poor
BASIC scores did not mean it was incompetent to carry the
load, as the scores themselves are unreliable in predicting
the risk that any individual carrier will be involved in a
crash. It further emphasizes that it had not been given an
“unsatisfactory” rating and was still authorized
by FMCSA to transport freight (Id. at 4). Finally,
C.H. Robinson contends that Riley has not established a
causal connection between the BASIC scores and the collision
because there is no evidence showing that Yuldashev's
poor driving contributed to the BASIC scores or that he was
an incompetent driver (Id. at 10-11).
Court concludes that there remain genuine issues of material
fact as to whether C.H. Robinson negligently hired A.K.
Logistics to carry the load. See Peterson, 754 F.3d
at 598. More specifically, the Court concludes that there
remain disputes as to whether A.K. Logistics' BASIC
scores were a reliable indicator of its competence or lack
thereof, and whether a reasonable motor carrier would have
declined to consider BASIC scores when deciding whether to
hire a specific motor carrier. Also, there is a dispute as to
whether, after reviewing A.K. Logistics' BASIC scores, a
reasonable broker would have hired A.K. Logistics to carry
the load notwithstanding its poor BASIC scores, without at
least inquiring further as to the issues and incidents
underlying the scores. Notably, the president of A.K.
Logistics testified that some brokers had started to inquire
as to its declining scores and that other brokers had refused
to hire A.K. Logistics because of its BASIC scores. See
Reed, 37 S.W.3d at 277 (in a negligent-hiring claim,
negligence exists if a reasonably prudent person would have
anticipated the danger and provided against it); cf.
Sullivan, 770 S.W.2d at 356-57 (in negligent-hiring
claim, plaintiff failed to establish independent
contractor's incompetence because, as relevant, she did
not offer evidence that the contractor had a poor safety
record or poor reputation). There is some evidence that A.K.
Logistics' insurance was cancelled because of its scores.
Cf. Lee, 81 S.W.3d at 635 (affirming adverse grant
of summary judgment on negligent-hiring claim where plaintiff
adduced no evidence that independent contractor had a poor
safety record or poor reputation, or that he lacked
sufficient expertise and experience to act as a motor
carrier). Riley has also presented an expert witness who is
prepared to testify that reliance on BASIC scores is part of
the standard of care for motor carrier brokers.
Court further concludes that there is a factual dispute on
the issue of whether A.K. Logistics' alleged
incompetence, as reflected in its BASIC scores, was a
proximate cause of the collision. See Reed, 37
S.W.3d at 277 (the test for proximate cause is whether an
injury is the “natural and probable consequence of the
defendant's negligence”; in negligent-hiring claim,
employee's prior misconduct may put employer on notice of
employee's proclivity for similar dangerous conduct). The
Court thus concludes that genuine issues of material fact
remain on Riley's negligent-hiring theory and will deny
C.H. Robinson's motion for summary judgment on that
theory of recovery.
Robinson further argues that it is entitled to summary
judgment to the extent Riley seeks to hold it vicariously
liable based on a purported agency relationship between it
and A.K. Logistics. Specifically, it contends that it did not
exercise sufficient control over A.K. Logistics to form an
agency relationship (Docs. 36 at 11-20; 64 at 13-15; 88). In
response, Riley asserts that C.H. Robinson's control over
A.K. Logistics was sufficient to transform the relationship
into that of an agency (Doc. 47 at 19-25).
independent contractor is “a person who contracts with
another to do something for him, but who is not controlled by
the other nor subject to the other's control with respect
to his physical conduct in the performance of his
undertaking.” Skidmore v. Haggard, 110 S.W.2d
726, 729-30 (Mo. 1937) (adopting Restatement of Agency's
definition of independent contractor). “[S]imply
characterizing a party an independent contractor does not
make it so. Rather, a court must make a factual determination
of independent-contractor status, and whether or not the
parties believe they are creating the relationship of master
and servant is only one factor out of many.” Stars
Invest. Grp., LLC v. AT&T Corp., No.
4:15-CV-01370-AGF, 2017 WL 747610, at *5 (E.D. Mo. Feb. 27,
2017) (internal quotations and citations omitted).
courts routinely consider the factors set forth in §
220(2) of the Restatement (Second) of Agency when determining
whether a person or entity acting for another is an employee
or an independent contractor for purposes of respondeat
superior liability. Id. at *6 (citing Huggins v.
FedExGround Package Sys., Inc., 592 F.3d 853, 860 (8th
Cir. 2010)). These factors include:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employee or the workman supplies the
instrumentalities, tools, and the place of work for the
person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business