Can I be held responsible for damages in a commercial truck wreck if I’m just THE SHIPPER?
When there is an accident that involves a large vehicle, such as a 53’ Dry Van, used during the course of business and/or for the transportation of commercial goods, any person or entity can be sued for causing the accident. Here’s is how YOU as a shipper could be held responsible:
If you retained control of the commercial truck at the time of the event
It will be essential to determine the type of employment relationship between the TRUCKER and the SHIPPER or FREIGHT BROKER in order to determine the degree of control a broker or shipper has over a truck driver and, consequently, whether the broker or shipper can be held responsible for the trucker’s actions (or lack of action).
In general, there are two types of employment relationships between a broker/shipper and a trucker: principal-agent relationship and independent contractor relationship.
In an independent contractor relationship, the trucker (or “owner operator”) is hired to produce a specific result (i.e., make a delivery). Under an agreement like this, the broker or shipper does not have the authority to control how the job is carried out, therefore a broker or shipper’s liability is limited should a trucking accident happen.
Under the terms of a principal-agent relationship, the driver would be acting as an “agent” for the shipper (the principal), meaning that the shipper (instead of the carrier) would be retaining control of the load and the driver, and could be held responsible for damages. Some of the factors that determine whether the shipper kept control at the time of the event are:
- whether the driver was contracted directly by the shipper,
- whether the driver was paid directly by the shipper,
- whether the shipper set parameters for how and when a delivery should be made (created deadlines) and
- whether the driver had to regularly check in with the shipper.
It is important to point out that a contract between a broker or shipper and a truck driver will not necessarily determine the relationship between these parties accurately. The most common arguments are that the trucker may have been misclassified, or that there might be an actual principal-agent relationship with the broker/shipper, based on how the relationship played out during the course of employment.
The evidence needed to prove that a principal-agent relationship exists between a broker/shipper and a truck driver include: the original contract between the broker/shipper and the truck driver, the truckers’ log books, shipping or cargo receipts, records maintained by the broker or shipper, and/or copies (or recordings) of communications between the broker/shipper and the trucker.
If you are found guilty of negligent selection
Another common accusation against a shipper is “negligent selection”. A shipper is responsible for choosing a competent and safe contractor to do business with, and may be liable for damages in a commercial truck wreck if it can be proven that they did not choose properly.
This is where we introduce the term “sophistication”. It refers to the amount, frequency and size of shipments. The more sophisticated a shipper is, the higher the duties will be if they are found responsible for failing at proper selection of a competent carrier.
The most common defense against negligent selection is that the shipper chose a specific carrier based on its satisfactory rating with the FMCSA. The most common argument is that the employer should have performed a deeper research to make sure that the carrier is not manipulating business practices to avoid unsatisfactory ratings, however, this is a weak argument, since it would require a never-ending investigation.
If you failed to advise of the hazmat nature of you load
This scenario would only be applicable if the shipper failed to advise the trucking company of the hazmat nature of their goods, and if injuries resulted because of this. Essentially, it comes down to the shipper’s duty to inform.
As a matter of fact, anybody can be sued for causing a truck accident. Including the truck driver and the trucking company, the owner of the truck, the shipper, as well as any other drivers, people or entity who in any way contributed to the accident, such as the manufacturer of one of the vehicles involved, the manufacturer of a tire or the owner of any public or private property whose negligence contributed to the accident. Liability can even be shared among the parties involved and you should always take the correspondent State’s laws and regulations into account.
How common are truck accidents?
There are approximately 5,000 deaths, 100,000 injuries, and 500,000 trucking accidents every year in the USA.
As a shipper, no matter how well you complies with cargo safety standards, you will never be exempt from truck accidents. However, there are always safe and reliable ways to protect you and your goods when using EP America’s transportation solutions.
Want to learn more? Contact us now and we will give you a complimentary consultation.