Ciotola v. Star Transportation & Trucking LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CARMEN CIOTOLA, :

Plaintiff : CIVIL ACTION NO. 3:19-753

v. : (JUDGE MANNION)

STAR TRANSPORTATION & :

TRUCKING, LLC,

And, :

QUARTERBACK :

TRANSPORTATION, USA INC.,

And, :

BALL METAL BEVERAGE :

CONTAINER CORP.

Defendants, :

And, :

OLDCASTLE, INC. :

LIBERITY MUTUAL

CORPORATION, :

DEFENDANT/

INTERVENORS :

MEMORANDUM

Pending before the court is defendant Quarterback Transportation

USA, Inc.’s (“Quarterback”) motion for summary judgment against all other

parties, pursuant to Fed.R.Civ.P. 56, (Doc. 69), arguing that the plaintiff’s

state law clams against it in his second amended complaint (“SAC”), (Doc.

25), should be dismissed since they are preempted under the Federal

Aviation Administration Authorization Act (“FAAAA”), 49 U.S.C.

§14501(c)(1). Quarterback contends that plaintiff’s SAC for damages against

it for personal injuries and negligence claims are preempted under FAAAA,

since they relate to its core services of brokering the shipment of goods in

interstate commerce. Also pending is the plaintiff’s motion for partial

summary judgment against Quarterback, (Doc. 75), arguing that Hataway

was the common law agent, servant or employee of Quarterback at the time

of the accident rendering Quarterback vicariously liable for Hataway’s

conduct as a matter of law. Alternatively, plaintiff argues that pursuant to the

Federal Motor Carrier Safety Regulations (“FMCSR”) Quarterback was the

de facto Motor Carrier and statutory employer since it allegedly exercised

substantial authority and control over almost every aspect of the freight being

transported at the time of the accident. (Doc. 75).1

For the reasons that follow, the court will DENY the cross-motions for

summary judgment of Quarterback, (Doc. 69), and plaintiff, (Doc. 75).

Quarterback’s motion is denied because the FAAAA does not preempt state

1In his motion for partial summary judgment with respect to his claims

against Quarterback, (Doc. 75), plaintiff requested oral argument. Plaintiff’s

request is denied since the record is sufficient for the court to rule on the

pending cross-summary judgment motions.

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law claims against a broker or a carrier. Plaintiff’s motion is denied because

genuine issues of material fact exist as to whether Quarterback acted as a

broker and whether Hataway was an employee of Quarterback.

I. BACKGROUND2

On May 2, 2019, plaintiff, Carmen Ciotola, initiated this action by filing

a complaint against Ball Metal Beverage Container Corp. (“Ball Metal”),

Quarterback, and Star Transportation & Trucking LLC (“Star”) for personal

injuries he sustained from a motor vehicle accident that occurred on

November 12, 2018. (Doc. 1). Plaintiff is now proceeding on his SAC which

he filed, with Exhibits, against Ball Metal and Quarterback on September 27,

2019. (Doc. 25).

Specifically, on November 12, 2018, Ronald Hataway was driving a

2009 Volvo commercial tractor trailer on Interstate 81 in Luzerne County, PA,

within the scope of his contractor relationship with Star. Hataway was

2Also pending are the motions for summary judgment of Quarterback

with respect to its claims asserted against Star in its third party complaint,

(Doc. 67), of Ball Metal with respect to plaintiff’s claims against it in his SAC,

(Doc. 71), and of Star with respect to the claims asserted against it in

Quarterback’s third party complaint, (Doc. 73).

The court will decide these other motions in separate opinions.

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provided the tractor trailer he drove by Star, which Star had leased. Star was

contracted as a motor carrier by Quarterback to ship Ball Metal’s products.

While Hataway was driving in the southbound lane, he collided into the rear

end of a 2004 Ford Ranger pick-up driven by plaintiff causing him injuries.

When the accident occurred, Hataway was transporting a load of aluminum

cans used for beverages from the shipper, Ball Metal. The load Hataway was

transporting was brokered by Quarterback pursuant to Agreements it had

with Ball Metal and Star, including its Broker-Carrier Agreement with Star. In

addition to suing Star and Ball Metal for the injuries he sustained in the

accident, plaintiff sued Quarterback, which had arranged for the

transportation of the load of aluminum cans from Ball Metal’s plant in Wallkill,

New York, to Missouri.

On September 24, 2018, Hataway plead guilty to “Possession of

Alcohol Beverage in CMV” regarding the accident with plaintiff. Hataway is

not a named defendant in this case.

Additionally, plaintiff originally named Star as a defendant in this case,

however, plaintiff settled his claims against Star and dismissed all of the

claims against it on September 25, 2019, pursuant to a Joint Tortfeasor

Release Agreement. As such, plaintiff did not name Star as a defendant in

his SAC.

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In his SAC, plaintiff raises claims against Quarterback in Counts I-IV

and X, namely, Vicarious Liability for Hataway, Negligent

Hiring/Supervision/Retention, Reckless Hiring/Supervision/Retention

regarding Star, Negligent Entrustment regarding Hataway and Star, and

Joint Venture with Ball Metal. Plaintiff basically alleges that at the time of the

accident Hataway was an employee of Quarterback and, that Quarterback

was acting as the broker and a “motor carrier” for the Ball Metal shipment

Hataway was transporting and, thus is responsible for Hataway’s negligence

in causing the accident.

On October 7, 2019, Quarterback filed a motion to dismiss plaintiff’s

SAC, or alternatively, motion for summary judgment, (Doc. 26), along with

its brief in support and attached Exhibits, (Doc. 27). Quarterback contended

that all of plaintiff’s claims against it were preempted by the FAAAA because

all of the claims against it relate to its core services of brokering the shipment

of goods and hiring motor carriers to transport shipments in interstate

commerce. It stated that it is only a licensed property broker by the Federal

Motor Carrier Safety Administration (“FMCSA”) and that it only arranged with

the shipper Ball Metal for the transportation of Ball Metal’s cargo by Star. It

also stated that Star’s driver, Hataway, was hauling Bell Metal’s cargo on the

day of the accident.

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Also, on October 7, 2019, Quarterback filed a Third Party Complaint

against Star based on its liability for the November 12, 2018 accident. (Doc.

28).

On October 22, 2019, plaintiff filed his brief in opposition to

Quarterback’s motion, (Doc. 26), with attached Exhibits, (Doc. 41).

Following discovery, Quarterback filed a motion for summary judgment

on April 6, 2020, against all other parties in this case, but mainly seeking

judgment with respect to plaintiff’s claims against it in his SAC. (Doc. 69).

Also on April 6, 2020, plaintiff filed a motion for partial summary judgment

with respect to his claims in his SAC against Quarterback. (Doc. 75).3 Both

motions have been briefed and exhibits have been filed.4 Ball Metal did not

file a brief in opposition to either of the cross-summary judgment motions

and, thus is deemed as not opposing them.

3Since the court is considering Quarterback’s summary judgment

motion, (Doc. 69), and plaintiff’s summary judgment motion, (Doc. 75), as

well as the evidence they submitted, Quarterback’s pending motion to

dismiss, (Doc. 26), will be denied as moot.

4Although Quarterback failed to file a separate statement of material

facts with its summary judgment motion as required by Local Rule 56.1,

M.D.Pa., it does have a statement of facts with citations to the record in its

summary judgment motion, (Doc. 69). Plaintiff properly filed his separate

statement of material facts, (Doc. 76), with his motion, (Doc. 75).

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In his motion for partial summary judgment against Quarterback,

plaintiff contends that under the FMCSR and prevailing case law,

Quarterback functioned as a motor carrier and statutory employer when it

exercised substantial authority and control over almost every aspect of the

Ball Metal shipment. Additionally, plaintiff asserts that Hataway acted as

Quarterback’s common law agent, servant, or employee at the time of the

accident, which therefore makes Quarterback vicariously liable for

Hataway’s conduct.

On April 27, 2020, Quarterback filed its brief in opposition to plaintiff’s

motion, (Doc. 75), with Exhibits attached, (Doc. 80).

Based on the following, the court finds that plaintiff’s claims against

Quarterback are not preempted by the FAAAA since the FAAAA does not

preempt general tort law that does not significantly impact Quarterback’s

prices, routes, and services. The court also finds that genuine issues of

material facts exist regarding whether Quarterback acted as a broker or

carrier and whether Hataway was an employee of Quarterback.5

5The court notes that disputed issues of material fact exist as to

whether Hataway was an employee or agent of Quarterback or whether he

was employed by Star despite the language in Quarterback’s Chubb Policy

upon which plaintiff was attempting to rely in his proposed reply brief in

support of his summary judgment motion. (See Doc. 94).

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II. MATERIAL FACTS

On November 12, 2018, Ball Metal arranged for the transportation of a

load of freight from Middletown, New York, to Farmington, Missouri. Ball

Metal brokered, hired, assigned, or contracted the transportation of the

freight to Quarterback.

Quarterback is a foreign corporation with a physical address of 1210

Sheppard Avenue East, Suite 114, Toronto, Ontario, M2K 1E3, and is a

citizen of Canada. Quarterback is licensed and insured as a broker

according to the FMCSA. Quarterback also possesses a U.S. Department

of Transportation number, 2237651, and Motor Carrier number, 580470.

Quarterback advertises on its website stating items such as: “Quarterback

Transportation offers a wide variety of driving options for qualified carriers”;

“Quarterback Transportation is also a great partner for Owner Operators.

Bring your truck, or join our existing group of drivers and carriers who

continue to enjoy their working experience with Quarterback

Transportation”; “Quarterback Transportation provides Transportation,

Logistics and Supply Chain Solutions that consistently exceed the

expectations of our valued customers”; and “At Quarterback Transportation,

our team of industry professionals provide decades of experience managing

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all aspects of reliable freight movements within the United States, Canada,

and Mexico.” See https://qbtransportation.com/carriers/;

https://qbtransportation.com/about-us/our-company/. Quarterback’s

website also contains advertisements for various types of trucking

equipment available for customers. Some advertisements also have a

Quarterback logo placed on available trucking equipment.

Ball Metal and Quarterback entered into a contract titled

“Shipper/Broker Transportation Agreement.” (BMBC0000001-

BMBC0000031). The Shipper/Broker Transportation Agreement set the

terms of Quarterback providing carriers to Ball Metal to ship their freight.

Part of this Agreement included Ball Metal paying Quarterback for any fuel

costs that arose from each shipment.

In the year leading up to the accident at issue, Quarterback was paid

approximately $1,000,000 for fuel by Ball Metal. Appendix E to the

Shipper/Broker Transportation Agreement lists Quarterback as the Carrier

and contains a Quarterback representative’s signature, Nick Deroschers, in

the Carrier section. Section 1 to Appendix E titled “Term” to the Agreement

states:

The initial term of this agreement shall commence on the Effective Date

and, unless terminated prior to the end of the Initial Term, shall continue

for a period of [ 1 ] year(s)) thereafter. By providing notice to the

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CARRIER no less than (30) days prior to expiration of the Initial Term

of this Agreement, SHIPPER may, at its sole and unilateral discretion,

renew the Agreement…

(BMBC000014).

Section 2 to Appendix E states that:

CARRIER, as an independent contractor, desires to furnish motor

carrier surface transportations services as more fully described

herein (“Transportation Services”) to SHIPPER for the transportation

of SHIPPER’s commodities and represents and warrants that it is a

duly registered motor carrier in interstate and intrastate commerce

with the U.D. Department of Transportation Federal Motor Carrier

Safety Administration (“DOT”) and/or applicable state regulatory

agencies and is fully authorized and capable of performing all

transportation services;

(BMBC0000014).

Section 3 to Appendix E states:

CARRIER shall, at its sole cost and expense, provide an efficient

business operation and all qualified personnel, appropriately

maintained equipment, supplies, fuel, and parts necessary to perform

the Transportation Services. Carrier shall perform SHIPPER’S distinct

transportation needs and/or special requirements as required from time

to time and as more fully described in the attached Schedules.

(BMBC0000014).

Appendix E to the Broker/Shipper Transportation Agreement was

signed and effective on December 2, 2014. There is no indication Appendix

E was renewed by the shipper, Ball Metal, according to the terms

established in section one, “Terms.” (BMBC000014).

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Quarterback brokered, hired, assigned, or contracted the physical

transportation of the freight to Star. Star is a small trucking company with

approximately twenty to twenty-five independent contractors. Star has only

one employee, Almir Muharemovic, who is the owner and corporate

designee. In his deposition, Mr. Muharemovic verified that it was Star’s

responsibility alone to provide a driver for the Ball Metal load and to review

Mr. Hataway’s credentials. He also verified that Star did not send Mr.

Hataway’s credentials to Quarterback for approval.

Quarterback had no control over who Star hired to transport Ball

Metal’s cans. Quarterback “doesn’t hire or employ any drivers.” (Doc. 60,

Exhibit C, Deposition of Anthony Pomocik, at 46). Additionally, Mr.

Muharemovic stated that Star provided the 2009 Volvo commercial truck

that Mr. Hataway drove at the time of the accident. Quarterback specified

the type of equipment that should be used for the shipment and the time the

load should be delivered.

Star contracted with Hataway to operate a 2009 Volvo commercial

tractor trailer in order to deliver the Ball Metal load for Quarterback. Star

provided Hataway with the tractor trailer. Neither Star nor Quarterback

determined Hataway’s route. Hataway determined his route by using a

personal global positioning system (“GPS”).

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On the day of transport, Quarterback’s Carrier Load Confirmation

instructed Hataway to do the following: identify himself as a representative

of Quarterback when he arrived at Ball Metal to pick up the load; sign the

Bill of Lading on behalf of Quarterback; directly communicate with

Quarterback on his progress; report any problems to Quarterback directly;

any accessory charges related to the transportation of the load would

require prior authorization by Quarterback; and to provide a signed proof of

delivery to Quarterback. The Bill of Lading listed Quarterback as the Carrier

for the November 12, 2018 shipment. Ball Metal’s Carrier Load Report lists

Quarterback as the Carrier and contains several communications from Ball

Metal to Quarterback. Ball Metal relied on Quarterback for all

communication related to the delivery, such as delivery time, status, and

location of the shipment.

Quarterback monitored the driver’s hours, location, and routes. Ball

Metal used software provided by BluJay Solutions to monitor its shipment.

The Tender Acceptance confirmation email sent to Ball Metal on November

12, 2018 lists Quarterback as the Carrier. Ball Metal had no contact with

Star in relation to the November 12, 2018 shipment.

After Haraway picked up the load at Ball Metal, he began transporting

the cans to their destination on November 12, 2018, and during his trip while

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driving southbound on Interstate 81 in Luzerne County, PA, he collided into

the rear end of plaintiff’s pick-up truck, causing plaintiff injuries. The police

report indicated that Hataway took his eyes off the road and crashed into

plaintiff’s pick-up truck at a high rate of speed, which then caused plaintiff’s

pick-up to crash into the vehicle in front of him. (See Police Report, Doc. 76,

Exhibit A at ¶33). The police cited Hataway with three violations regarding

the collision. On September 24, 2018, Hataway plead guilty to “Possession

of Alcohol Beverage in CMV.”

III. DISCUSSION6

Before the court is Quarterback’s motion for summary judgment, (Doc.

69), regarding plaintiff’s claims against it in his SAC, and plaintiff’s partial

motion for summary judgment against Quarterback, (Doc. 75). This Court

has jurisdiction pursuant to 28 U.S.C. §1332. Venue is proper under 28

U.S.C. §1391. Plaintiff, Carmen Ciotola, is an adult individual who is

domiciled at 2 Honey Hole Road, Drums, Pennsylvania, and is a citizen of

6Since Quarterback and plaintiff state in their respective briefs the

proper legal standard for a motion for summary judgment under Rule 56, the

court will not repeat it herein. Suffice to say that in deciding a motion for

summary judgment, the court must consider all evidence and inferences

drawn therefrom in the light most favorable to the non-moving party.

See Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

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the Commonwealth of Pennsylvania. Defendant Ball Metal is a Colorado

corporation with a principal place of business of 9300 West 108th Circle,

Westminster, CO, and is a citizen of the state of Colorado. Quarterback is a

foreign corporation with a physical address of 1210 Sheppard Avenue East,

Suite 114, Toronto, Ontario, and is a citizen of Canada. Plaintiff seeks an

award of over $75,000. Therefore, complete diversity exists between the

plaintiff and each defendant because plaintiff does not share a state of

citizenship with any defendant and the amount in question is over $75,000.

Quarterback argues that plaintiff’s state law tort claims against it are

preempted by the FAAAA. Quarterback asserts that it only provided

brokerage services for Ball Metal and that the Agreements show it was only

serving as a broker to arrange a motor carrier, i.e., Star, to be retained to

transport Ball Metal’s cans from Middletown, New York, to Farmington,

Missouri. Plaintiff argues that Quarterback acted as a carrier, and not a

broker, regarding Ball Metal’s shipment and that Hataway, in effect, was

working for Quarterback at the time of the accident.

Thus, at issue is whether plaintiff’s state law claims against

Quarterback should be dismissed since they are preempted by the FAAAA,

49 U.S.C. §14501(c)(1). “Preemption is an affirmative defense that the

defendant has the burden to prove.” Lupian v. Joseph Cory Holdings LLC,

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905 F.3d 127, 130 (3d Cir. 2018). As such, Quarterback has the burden to

demonstrate that plaintiff’s state-law tort claims are preempted. Also, “a

claim of ‘express preemption, [such as that plaintiff’s negligent brokering

claim is preempted by the FAAAA, §14501(c)(1)] occurs when the language

of the federal statute reveals an express congressional intent to preempt

state law.” Loyd v. Salazar, 416 F.Supp.3d 1290, 1293 (W.D.Ok. 2019)

(citations omitted). “Congress enacted the FAAAA to protect freight

shipments from state regulations.” Id. at 1295.

The FAAAA’s preemption provision, 49 U.S.C. §14501(c), provides in

relevant part:

a State, political subdivision of a State, or political authority of 2 or more

States may not enact or enforce a law, regulation, or other provision

having the force and effect of law related to a price, route, or service of

any motor carrier … or any motor private carrier, broker, or freight

forwarder with respect to the transportation of property.7

The court in Montoya v. CRST Expedited, Inc., 404 F.Supp.3d 364,

401 (D.Mass. Sept. 6, 2019), explained:

7See 49 U.S.C. §13102(2) (“broker” means a person “selling,

providing, or arranging for, transportation by motor carrier for

compensation”), §13102(23) (“transportation” includes “a motor vehicle ... or

equipment of any kind related to the movement of passengers or property”

and “services related to that movement, including arranging for, receipt,

delivery, ... and interchange of passengers and property”). Loyd, 416

F.Supp.3d at 1297 n. 9.

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The phrase “related to” “embraces state laws having a connection with

or reference to carrier rates, routes, or services, whether directly or

indirectly.” However, “§14501(c)(1) does not preempt state laws

affecting carrier prices, routes, and services ‘in only a tenuous, remote,

or peripheral ... manner.’ ” “[T]he breadth of the words ‘related to’ does

not mean the sky is the limit.” Furthermore, the “FAAAA formulation

contains one conspicuous alteration [from the ADA] -- the addition of

the words ‘with respect to the transportation of property,’” and this

phrase “massively limits the scope of preemption ordered by the

FAAAA.” (internal citations omitted).

See also Lupian, 905 F.3d at 133; Loyd, 416 F.Supp.3d at 1295.8

“[I]n Taj Mahal Travel, [the Third Circuit] framed the proper inquiry as:

‘whether a common law tort remedy frustrates deregulation by interfering

with competition through public-utility-style regulation.’” Lupian, 905 F.3d at

134 (citation omitted). “If a state law does not have such a regulatory effect,

we determined, then the state law is ‘too tenuous, remote or peripheral’ to

be preempted.” Id. at 133 (citation omitted).

The Third Circuit in Lupian, id. at 135, then explained:

The purpose of the FAAAA’s preemption clause is to prohibit states

from effectively re-regulating the trucking industry and to promote

“maximum reliance on competitive market forces.” 49 U.S.C.

§40101(a)(6). The preemption clause undoubtedly applies, for

example, to state laws directly restricting types of goods that can be

carried by trucks, tariffs, and barriers to entry. But state law may also

be preempted if it has an indirect effect. This intent is patent in the

8“Due to parallel language in the statutes, courts follow caselaw

interpreting the Airline Deregulation Act (ADA), 49 U.S.C. §1305(a)(1), to

determine the scope of the FAAAA.” Loyd, 416 F.Supp.3d at 1295 (citations

omitted).

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FAAAA insofar as the preemption clause employs the phrase “related

to” immediately before “a price, route, or service of any motor carrier.”

Id. §14501(c)(1). The Supreme Court further observed that “state laws

whose ‘effect’ is ‘forbidden’ under federal law are those with a

‘significant impact’ on carrier rates, routes, or services.” Rowe, 552

U.S. at 375, 128 S.Ct. 989 (quoting Morales, 504 U.S. at 388, 112 S.Ct.

2031).

Regardless if defendant is deemed a broker or a motor carrier under

the FAAAA, this court must decide whether or not Pennsylvania’s general

tort law should be preempted by the FAAAA. The Third Circuit recently

decided Bedoya v. American Eagle Express, Inc., 914 F.3d 812 (3rd Cir.

2019), cert. denied, 140 S.Ct. 102 (2019). In Bedoya, the court analyzed

whether or not a company’s classification of employees as independent

contractors under New Jersey Wage and Hour Law and New Jersey Wage

Payment law were preempted by the FAAAA. “The Bedoya plaintiffs were

truck drivers who brought a putative class action against their employer for

classifying them as independent contractors when, in the plaintiffs’ view, they

were employees pursuant to the NJWHL and NJWPL.” Eagle Systems, Inc.

v. Asaro-Angelo, 2019 WL 3459088, *5 (D.N.J. July 31, 2019) (citing Bedoya,

914 F.3d at 815-16). The Third Circuit found that the drivers’ claims were not

preempted by the FAAAA. The Court stated that “[t]he FAAAA’s focus on

prices, routes, and services shows that the statute is concerned with the

industry’s production outputs, and seeks to protect them from state

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regulation.” Bedoya, 914 F.3d at 821. “The motor carrier industry’s output –-

the service it provides –- is the ‘transportation of property from origin to

destination.’” Montoya, 404 F.Supp.3d at 401 (citing Bedoya, 914 F.3d at

821). “Although state laws that regulate industry inputs –- labor, capital, and

technology –- ‘may impact costs and may in turn affect prices charged and

services provided to customers,’ the FAAAA does not preempt these kinds

of regulations and laws.” Id. (citing Bedoya, 914 F.3d at 821).

The court in Montoya, id. at 402, concluded that “[the] State law

prohibiting alleged unfair and deceptive practices as to driver training

programs for students who are seeking a CDL may have ‘indirect effects’ on

[defendant’s] trucking service, but the impact is ‘tenuous, remote, or

peripheral’”, and thus held that plaintiff’s consumer fraud claims were not

preempted by the FAAAA.

In Bedoya, the Third Circuit split the analysis of a state law into two

parts. First, courts should determine whether the challenged state law has a

direct impact on prices, routes or services by looking to several factors:

[T]o assess the directness of a law’s effect on prices, routes, or

services, courts should examine whether the law: (1) mentions a

carrier’s prices, routes, or services; (2) specifically targets carriers as

opposed to all businesses; and (3) addresses the carrier-customer

relationship rather than non-customer-carrier relationships (e.g.,

carrier-employee).

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Id. at 821-23. (citations omitted).

The Third Circuit explained that when examining the third factor, courts

should look to the challenged state law and determine if the regulation is

geared towards “resource inputs” (labor, capital, and technology) or “product

outputs” (services provided by the motor carrier industry). Bedoya, 914 F.3d

812. The FAAAA regulates product outputs but not resource inputs because

“[a]lthough laws that regulate inputs may impact costs and may in turn affect

prices charged and services provided to customers, ‘no one thinks that the

ADA or the FAAAA preempts these [regulations] and the many comparable

state laws[.]’” Id. (citing S.C. Johnson & Son, Inc. v. Transp. Corp. of Am.,

Inc., 697 F.3d 544,558 (7th Cir. 2012).

The second part of the analysis in Bedoya is that courts should then

determine whether the challenged law’s indirect impact on prices, routes, or

services is significant or not. If the law has a significant impact on the

services a motor carrier provides, then the law should be preempted by the

FAAAA. The Third Circuit explained in Bedoya that:

To assess whether a law has a significant effect on a carrier’s prices,

routes, or services, courts should consider whether: (1) the law binds

a carrier to provide or not provide a particular price, route, or service;

(2) the carrier has various avenues to comply with the law; (3) the law

creates a patchwork of regulation that erects barriers to entry, imposes

tariffs, or restricts the goods a carrier is permitted to transport; and (4)

the law existed in one of the jurisdictions Congress determined lacked

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laws that regulate intrastate prices, routes, or services and thus, by

implication, is a law Congress found not to interfere with the FAAAA’s

deregulatory goal.

Id. at 823.

Courts have found that personal injury claims based on a state’s

general negligence law are not preempted by the FAAAA or ADA. See

Jimenez–Ruiz v. Spirit Airlines, Inc., 794 F.Supp.2d 344, (D.Puerto Rico

2011) (summarizing various Circuit Court decisions that found when plaintiff

invoked traditional elements of tort law, courts have almost uniformly found

no federal preemption); Owens v. Anthony, 2011 WL 6056409, at *3 (M.D.

Tenn. Dec. 6, 2011).

Nonetheless, “Federal district courts are sharply divided on how to

apply these guiding principles to personal injury claims alleging negligence

by brokers in selecting motor carriers for the transportation of property.”

Loyd, 416 F.Supp.3d at 1295 (footnote omitted). The court in Loyd, 416

F.Supp.3d at 1295-96, then explained:

There is no question that a common law negligence claim embodies a

state law that may be preempted [by the ADA and FAAAA] under

proper circumstances. See Northwest, Inc. v. Ginsberg, 572 U.S. 273,

281-82, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014) (“[S]tate common-law

rules fall comfortably within the language of the ADA pre-emption

provision” because it “applies to state ‘law[s], regulation[s], or other

provision[s] having the force and effect of law,’” and “[i]t is routine to

call common-law rules ‘provisions.’”) (quoting 49 U.S.C. §41713(b)(1)).

The difficulty is “draw[ing] a line between laws that are significantly

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‘related to’ rates, routes, or services, even indirectly, and thus are

preempted, and those that have ‘only a tenuous, remote, or peripheral’

connection to rates, routes, or services, and thus are not preempted.”

See Dilts v. Penske Logistics, LLC, 769 F.3d 637, 643 (9th Cir. 2014)

(citing Rowe, 552 U.S. at 371, 128 S.Ct. 989).

Here, plaintiff asserts several claims against Quarterback: vicarious

liability by Quarterback for the actions of Hataway, negligent and/or reckless

hiring/supervision/retention of Hataway, negligent and/or reckless

hiring/supervision/retention of Star, negligent entrustment of Hataway and

Star, and joint venture of Quarterback and Ball Metal. Plaintiff’s claims of

vicarious liability, negligence and/or reckless hiring/supervision/retention of

Hataway and Star, and negligent entrustment of Hataway and Star all delve

into the employer-employee relationship. See Belmont v. MB Inv. Partners,

Inc., 708 F.3d 470, 487-88 (3rd Cir. 2013) (“[Negligent

hiring/supervision/retention] is specifically predicated upon two duties of an

employer: the duty to reasonably monitor and control the activities of an

employee, and the duty to abstain from hiring an employee and placing that

employee in a situation where the employee will harm a third party.”);

Adames v. May Furniture, Inc., 2019 WL 8937042,*8-9 (M.D.Pa. Nov. 26,

2019)(stating that vicarious liability and negligent hiring/supervision/retention

depend upon an employer-employee relationship).

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A joint venture requires that: “1) each party must make a contribution

of capital, materials, services or knowledge; 2) profits must be shared; and

3) there must be a joint proprietary interest in and right of mutual control over

the subject matter of the enterprise.” Beavers v. West Penn Power Co., 436

F.2d 869, 873 (3rd Cir. 1971). Once a party satisfies the test for a joint

venture, the torts committed by one joint adventurer may be imputed upon

other joint adventurers. See Beavers v. West Penn Power Co., 436 F.2d 869,

873 (3rd Cir. 1971); Friedman v. Wilson Freight Forwarding Co., 181 F.Supp.

327, 329 (W.D.Pa. 1960). Under Pennsylvania law, it is well-established that

a person operating a motor vehicle has a duty to “exercise ordinary and

reasonable care under the circumstances to avoid injury to others.” Adley

Express Co. v. Willard, 93 A.2d 676 (Pa. 1953). Plaintiff’s claims of negligent

hiring/supervising/retention and negligent entrustment rely upon a duty to

exercise reasonable care in hiring, supervising, retaining, and entrusting

Hataway and Star. Plaintiff’s claim of vicarious liability and joint venture rely

upon a duty that Hataway, acting as an agent of Quarterback, should have

exercised ordinary and reasonable care under the circumstances to avoid

injury to others. See Adley Express Co., 93 A.2d at 676. Plaintiff’s claims boil

down to imposing a duty of ordinary and reasonable care upon Quarterback.

Thus, the question is then whether imposing Pennsylvania’s common-law

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duty of ordinary care directly targets or significantly impacts a motor carrier’s

prices, routes, or services.

Pennsylvania’s common-law duty of ordinary care does not mention or

target a motor carrier’s prices, routes, or services. The duty is imposed on

all businesses in the state. In Lupian, the Third Circuit dealt with package

delivery drivers suing their employer for violations of the Illinois Wage

Payment and Collection Act (“IWPCA”). 905 F.3d at 127. The employer

claimed that IWPCA is preempted by the FAAAA because it would impact

the employer’s business model and prices it would charge its customers. See

id. The Third Circuit stated that:

Wage laws like the IWPCA are a prime example of an area of

traditional state regulation, and we do not lightly conclude that such

laws are superseded. Moreover, such laws are a part of the backdrop

that motor carriers and all business owners must face in conducting

their affairs. The IWPCA does not single out trucking firms, and it only

concerns the relationship between employers and employees.

Lupian, 905 F.3d at 136 (emphasis in original). The Court continued that

although the IWPCA could have negative financial consequences for

employers, that did not mean that the state law automatically became

forbidden. See Id.; See also Costello v. BeavEx, Inc., 810 F.3d 1045 (7th Cir.

2016) (finding that the IWPCA’s effects were sufficiently limited rather than

having a significant impact upon the business’s customers and the impact of

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the IWPCA was too tenuous, remote, or peripheral to warrant preemption,

even when employer provided evidence that hiring a human resource

professional would cost an extra $185,000 per year). Like the IWPCA,

Pennsylvania’s common-law duty of ordinary care is part of the backdrop of

laws that all businesses must follow. It in no way targets the trucking industry.

Additionally, plaintiff’s negligence claims focus on Quarterback’s

relationship with those it employs. As the Third Circuit explained, state laws

that target resource inputs, such as labor, capital, and technology, of a motor

carrier are not preempted by the FAAAA. See Bedoya, 914 F.3d at 822. The

Third Circuit stated, “[a]lthough laws that regulate inputs may impact costs

and may in turn affect prices charged and services provided to customers,

‘no one thinks that the ADA or the FAAAA preempts these [regulations] and

the many comparable state laws[.]’” Bedoya, 914 F.3d at 822 (citing S.C.

Johnson & Son, Inc. v. Transp. Corp. of Am., Inc., 697 F.3d at 558). Plaintiff’s

claims delve into the relationship between Quarterback and Hataway, and

Quarterback’s capital and technology. Even if plaintiff’s claims may impact

prices charged or services provided, the ADA or FAAAA were not intended

to preempt state common-law claims that do not significantly impact prices,

routes, or services. But see Loyd, 416 F.Supp.3d at 1297 (the court held that

the cases that focus on the language of §14501(c)(1) and the factual

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allegations of a plaintiff’s negligence claim were “more persuasive.” The

court then stated that “[w]ith few exceptions, the conclusions reached by

district courts conducting an express preemption analysis are that the

‘services’ of a freight broker involve arranging for a motor carrier to transport

property and that a state-law negligent brokering claim is directly ‘related to’

the broker’s performance of this service with respect to the transportation of

property.”) (string citations omitted); Krauss v. IRIS USA, Inc., 2018 WL

2063839, *5 (E.D.Pa. May 3, 2018) (court held that negligent hiring claims

against freight broker “go to the core of what it means to be a careful broker”

and thus, the claim was preempted by §14501(c)(1)).

The second part of the analysis in Bedoya requires the court to

determine if the state law “has a significant impact on carrier rates, routes,

or service.” Bedoya, 914 F.3d at 818. Here, the law does not bind a carrier

to provide or not provide a particular price, route, or service. The carrier has

a variety of avenues to comply with Pennsylvania’s tort law. Pennsylvania’s

law does not impose any barriers to entry, impose any tariffs, or restrict

goods a carrier may transport. Pennsylvania’s duty of care does not interfere

with the FAAAA’s deregulatory goal. In Taj Mahal Travel, Inc. v. Delta

Airlines, Inc., 164 F.3d 186, 194 (3rd Cir. 1998), the Third Circuit stated that

“[f]reeing airlines from the pervasive control over prices, routes, and services

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that existed previously does not require a grant of sweeping immunity from

the tort liability that existed throughout the regulatory era.” Even if one views

that liability for tortious conduct has an indirect effect on price, routes, or

services, the Third Circuit has found that state laws and regulations of this

nature do not necessitate preemption. In Bedoya, the Third Circuit stated

that even though the state law could have some negative financial

consequences because the employer had to create a new department within

the company, the impact was not significant enough to interfere with

Congress’ goal of deregulation. See Bedoya, 914 F.3d at 825.

Quarterback relies, in part, on Krauss v. IRIS USA, Inc., 2018 WL

2063839, at *5 (E.D.Pa. May 3, 2018), in which, as indicated, the court

“conclude[ed] that common law claims against a broker for negligent hiring

(of the carrier) arising from dangerous loading of merchandise by carrier

hired by broker were preempted by the FAAAA because the claim arose from

the broker’s core service, i.e., ‘hiring motor carriers to transport shipments.’”

Marson v. Alliance Shippers, Inc., 2020 WL 618581, *6 (E.D.Pa. Feb. 10,

2020). Krauss can be differentiated from the instant case because Krauss

was decided before the Third Circuit’s guidance in Bedoya. Krauss notes

that while state common law claims of negligent hiring and retention do not

expressly reference a freight broker or motor carrier’s services, they have a

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significant economic effect on a broker or motor carrier’s services. See

Krauss, 2018 WL 2063839, at *4 (citing Georgia Nut Co. v. C.H. Robinson

Co., 2017 WL 4864857, at *3 (N.D.Ill. Oct. 26, 2017). Krauss does not

explore the numerous factors Bedoya establishes to determine whether or

not a state law has a significant impact on a broker or motor carrier’s prices,

routes, or services. The Krauss court states a significant economic impact,

but does not explain how it reached that conclusion. See Krauss, 2018 WL

2063839, at *1-2, 5 (“[T]he negligent hiring claim...is that [plaintiff’s] injuries

directly flowed from [the broker’s] failure to vet freight carrier KV Load. The

claim therefore relates to the core service provided by [the broker] ... and will

therefore have a significant economic impact on the broker’s services ...

therefore the Court concludes it is preempted.”) (internal citations omitted).

In any event, this court is obliged to follow the Third Circuit’s

precedential Bedoya decision and not the Krauss case. The Third Circuit’s

reasoning in Bedoya that although a state law may have negative financial

consequences for a broker or carrier does not mean that the state law should

be preempted by the FAAAA is particularly relevant. See Bedoya, 914 F.3d

at 822. The above analysis indicates that although Pennsylvania’s tort law

may have some negative financial consequences for a broker or carrier, it is

not preempted by the FAAAA. Pennsylvania’s tort law is a part of the

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backdrop of laws that all businesses must follow. Adames, 2019 WL

8937042,*8-9. It does not directly reference prices, routes, or services of a

broker or motor carrier, and does not place a significant financial impact on

a broker or motor carrier’s prices, routes, or services.

Therefore, the court finds that plaintiff’s tort claims are not preempted

by the FAAAA, and that Quarterback is not entitled to summary judgment

regarding plaintiff’s claims against it. As such, Quarterback’s motion for

summary judgment, (Doc. 69), will be denied.

In plaintiff’s motion for partial summary judgment, plaintiff argues that

Hataway is either an employee of Quarterback as a common law agent,

servant, or employee, or that pursuant to the FMCSR, Hataway is a statutory

employee of Quarterback. The court finds that under either scenario alleged

by plaintiff, genuine issues of material facts preclude summary judgment in

his favor.

Plaintiff alleges that Quarterback is vicariously liable for Hataway’s

actions. Under Pennsylvania law, to establish vicarious liability, a plaintiff

must show a master-servant relationship existed. See Dickerson v. American

Sugar Ref. Co., Inc., 211 F.2d 200, 202 (3rd Cir. 1954); Adames v. May

Furniture, Inc., 2019 WL 8937042,*6 (M.D.Pa. Nov. 26, 2019) (“[W]hen the

relationship between the parties is that of ‘master-servant’ or ‘employer-

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employee,’ as distinguished from ‘independent contractor-contractee,’ the

master or employer is vicariously liable for the servant’s or employee’s

negligent acts committed within the scope of his employment.”) (citations

omitted).

The Pennsylvania Supreme Court set forth an array of factors to be

considered when examining the employer-employee relationship. See

Hammermill Paper v. Rust Eng’g Co., 243 A.2d 389, 392 (Pa. 1968). These

factors are: (1) control of the manner in which the work is done; (2)

responsibility for the result only; (3) terms of agreement between the parties;

(4) nature of the work/occupation; (5) skill required for performance; (6)

whether one is engaged in a distinct occupation or business; (7) whether the

work is part of the regular business of the alleged employer; (8) which party

supplies the tools/equipment; and (9) whether the alleged employer has the

right to terminate the employment at any time. See Adames, 2019 WL

8937042,*6-7 (citing Baum v. Workers’ Comp. Appeal Bd., 721 A.2d 402,405

(Pa. Cmwlth. 1998); Hammermill Paper v. Rust Eng’g Co., 243 A.2d 389,

392 (Pa. 1968)). “Not all factors are required to establish an employment

relationship.” Id. at *7. “The most important of these factors which are entitled

to the most weight are ‘ whether the purported employer has the right to hire

and fire the employee; whether the employer has the right to direct the

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manner of the employee's performance of the work; and whether the

employer has the right to control the work to be completed.’” Adames, 2019

WL 8937042, *7 (citing Knect v. Balanescu, 2017 WL 4573796 at *4,

(M.D.Pa. 2017)). “Ultimately, the question of whether an employment

relationship exists is a ‘question of law to be decided on the specific facts of

each case’ where the facts are not in dispute.” Id. (citations omitted).

Here, plaintiff alleges that Quarterback exercised, or had the right to

exercise, the requisite amount of control over Hataway to deem Quarterback

his common law employer. Plaintiff’s argument focuses on Appendix E to the

Broker/Shipper Transportation Agreement, the Carrier Load Confirmation,

and other sections of the Broker/Shipper Transportation Agreement. Plaintiff

asserts that Appendix E establishes that Quarterback held itself out as a

carrier, certified that it would provide “qualified personnel” and that it would

“employ [] only fully qualified, competent, and legally licensed and permitted

(without restriction) personnel.” (Doc. 80, BMBC000014-17). Additionally,

plaintiff asserts that the Carrier Load Confirmation provided the equipment

to be used, specified the condition of the equipment, the time of delivery

required for the load, and required that the driver identify himself as a

representative of Quarterback at pick-up and delivery. Also, Plaintiff argues

that Quarterback served as the only point of contact between Ball Metal and

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Hataway. Quarterback provided all updates to the delivery process through

the Carrier Load Report.9

Conversely, Quarterback argues that they did not have exclusive

control because it was Star’s sole responsibility to select the driver, it was

Star’s sole responsibility to provide the vehicle to be used, Quarterback had

no say in who Star selected to drive the load, and Quarterback did not

determine Hataway’s route. In fact, Star owner Almir Muharemovic stated

that Hataway used a personal GPS to determine his route.

Quarterback further argues that Appendix E to the Broker/Shipper

Transportation Agreement is not a valid agreement anymore since it expired

almost three years before the accident.

On the issue of whether Quarterback exercised, or had the right to

exercise, the requisite amount of control over Hataway and whether

Quarterback had the right to determine the manner in which the work was

9Since plaintiff cites to the applicable evidence upon which he relies in

support of his summary judgment motion in his brief, (see Doc. 79 at 15-36,

38-39, 40-49, 55 (summary), 58), including the Shipper/Broker

Transportation Agreement, the Carrier Load Confirmation document and

report, the Bill of Lading, copies from Quarterback’s website, Tender

Acceptance email, copies of post-accident emails, the Load Reports,

Moness’s YouTube video, copy of advertisements, as well as the relevant

deposition testimony of Quarterback’s and Ball Metal’s corporate designees

and officials, this evidence is not repeated herein.

(footnote continued on next page)

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preformed, this court finds that there is a genuine issue of material fact as to

Hataway’s status as a common law employee.10

In regards to the amount of control Quarterback exerted, plaintiff points

to Quarterback requiring Hataway to identify himself as a Quarterback

representative, Quarterback establishing the type of equipment to be used,

the condition of said equipment, Quarterback determining the drop-off and

pick-up times, and Quarterback being the central point of contact for

Hataway and Ball Metal throughout the delivery process. To the contrary,

Quarterback points to facts such as that it was Star’s sole responsibility to

select a driver, it was Star’s sole responsibility to select the truck Hataway

would drive, and Hataway determined the route he drove using a personal

GPS. These facts show a genuine issue of material fact exists because some

actions extend beyond those of a traditional broker and others show

Quarterback’s lack of control over the shipment.

On the seventh factor, whether the work is part of the regular business

of Quarterback, plaintiff alleges that Hataway, serving as a driver, is very

close to Quarterback’s regular business, the transportation of goods in

10Even considering the language in Quarterback’s Chubb Policy,

plaintiff submitted with his proposed reply brief, (see Doc. 94), the court still

finds disputed issues of material fact exist as to whether Hataway was an

employee or agent of Quarterback or whether he was employed by Star.

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international commerce. Plaintiff’s assertion relies on the conclusion that

Quarterback is a carrier. For a driver to be part of Quarterback’s regular

businesses, it would require that Quarterback regularly employ drivers. If

Quarterback is determined to be a broker, then Quarterback’s regular

businesses is hiring motor carriers who in turn hire drivers. While Plaintiff

argues that drivers are part of Quarterback’s regular business because

drivers are needed to actually transport the shipment, this conclusion would

mean that anyone needed to conduct the transport process would

automatically be deemed an employee of any broker. Plaintiff’s argument

would essentially remove any distinction between brokers and motor carriers

by making anyone involved in the shipment process an employee of the

broker. Further, Quarterback has provided evidence that it neither hires nor

employs any drivers. (Doc. 60, Exhibit C).

Additionally, plaintiff argues that if the court does not find that Hataway

was a common law employee of Quarterback, then it should find that

Hataway is a statutory employee of Quarterback. Plaintiff bases this claim

upon the fact that Quarterback is a motor carrier under the FMCSR and as

such, Hataway falls under the FMCSR definition of an employee of a motor

carrier.

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To determine whether or not Quarterback acted as a broker or a

carrier, courts look to “how the party acted during the specific transaction at

issue, which includes ‘the understanding among the parties involved [and]

consideration of how the entity held itself out.’” Louis M. Marson Jr., Inc. v.

Alliance Shippers, Inc., ---F.Supp.3d---, 2020 WL 618581, at *3 (E.D.Pa.

Feb. 10, 2020) (citing Richwell Grp., Inc. v. Seneca Logistics Grp., LLC, 2019

WL 3816890, at *3 (D.Mass. Aug. 14, 2019)). (additional citations omitted).

“Thus, ‘[w]hether a company is a broker or a carrier is not determined by

what the company labels itself, but by ... its relationship to the shipper.’”

Id. (first alteration in original) (quoting Hewlett-Packard Co. v. Brother's

Trucking Enters., Inc., 373 F. Supp. 2d 1349, 1352 (S.D.Fla. 2005)).

Licenses that the defendant holds and its previous transactions are not

dispositive to its role during the specific transaction in question. See Louis

M. Marson Jr., Inc., 2020 WL 618581, at *3. The court looks to who arranged

the details of the transport process. See id. The details of the transport

process include factors such as: who handled the route, who packed the

product, who coordinated the travel and release of the goods, whether or not

the party acted as a go-between or served as a central point of

communication for both the carrier and shipper, and if the shipper knew who

was exactly carrying the load. See id. Courts have found that because

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determining whether a defendant is a carrier or a broker is a fact specific

inquiry, it may be inappropriate for summary judgement. See Louis M.

Marson Jr., Inc., 2020 WL 618581, at *4; see also Essex Insurance Company

v. Barrett Moving & Storage, Inc., 885 F.3d 1292 (11th Cir. 2018) (“This is

necessarily a case-specific analysis, and as a result, summary judgment

might not be appropriate in many cases.”) (citing Nipponkoa Ins. Co., 2011

WL 671747, at *5)).

Here, Quarterback contends that because it possessed a license and

insurance to only act as a broker, did not hire Hataway, and did not provide

Hataway with the equipment needed to deliver the shipment, it cannot be

deemed a motor carrier. While Quarterback is only licensed and insured as

a broker, some of its actions extend beyond those of only a broker. Some of

Quarterback’s activities take on characteristics of a motor carrier:

Quarterback directly communicated with the driver on the day of the pick up;

Quarterback told the driver to report any problems to them directly, not Star;

Quarterback told the driver to identify himself as a representative of

Quarterback upon arriving at the shipper’s facility; the driver signed the Bill

of Lading as an agent or representative of Quarterback; the Bill of Lading

listed Quarterback as the carrier; and Ball Metal only received

communication from Quarterback regarding updates and tracking on the

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shipment. (See Doc. 84-1, Exhibit C; Doc. 84-1, Exhibit D; see also evidence

cited to in plaintiff’s brief, (Doc. 79), as noted above). However, there are

also several facts that support a contrary conclusion that Quarterback only

acted as a broker, such as: Ball Metal and Star both indicated that they only

knew Quarterback as a broker (Doc. 69); it was Star’s sole responsibility to

hire the driver; it was Star’s sole responsibility to provide the truck for

Hataway; and the route was determined by Hataway’s personal GPS and not

by Quarterback. (See Doc. 70, Exhibit A).

The court finds that the above stated disputed facts require a fact-

intensive inquiry for a jury to determine whether Quarterback was a broker

or carrier, which is inappropriate for summary judgment. See Louis M.

Marson Jr., Inc., 2020 WL 618581, at *5.

The rest of plaintiff’s claim relates to Hataway being a statutory

employee of Quarterback under the FMCSR. Plaintiff alleges that

Quarterback’s actions in the specific shipment on November 12, 2018

constituted those of a motor carrier. The argument continues that as a motor

carrier, Quarterback would then be held to the FMCSR. Plaintiff then points

to the definition of an employee within the FMCSR to allege that Hataway,

even if stated to be an independent contractor, is still an employee of

Quarterback. For the FMCSR definition of an employee to apply,

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Quarterback must be deemed a motor carrier. Plaintiff’s argument repeatedly

hinges upon language in the FMCSR that clearly states the regulations apply

to motor carriers. For this court to rule that Hataway is a statutory employee

of Quarterback under the FMCSR, it would require the court to declare

Quarterback a motor carrier in this specific shipment. As stated above, the

issue of whether Quarterback acted as a motor carrier or broker in this

specific shipment is not appropriate for summary judgement because many

genuine issues of material facts exist.

Therefore, plaintiff’s partial motion for summary judgment against

Quarterback, (Doc. 75), will be denied.

IV. CONCLUSION

For the forgoing reasons, the court will DENY the cross-motions for

summary judgment of Quarterback, (Doc. 69), and plaintiff, (Doc. 75). An

appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: August 24, 2020

19-753-06

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