‘Independent Contractor’ Defense Unavailable

The “independent contractor” defense generally states that a person or entity that hires an independent contractor is not liabil for the negligent acts or omissions of that contractor.  This rule has been heavily litigated in construction negligence cases where one party attempts to make an entity vicariously liable to or for the injured or injurious person with the main issue usually being the amount of “control” that entity had over that person. See e.g., Gregory v. Beazer East, 384 Ill.App.3d 333 (2008; Pestka v. Town of Fort Sheridan co., 371 Ill.App.3d 286 (2007); Martens v. MCL Construction Corp., 347 Ill.App.3d 303 (2004).  But apparently this rule does not apply in the commercial trucking accident arena.

During the first half of the 20th century, though, it did, and interstate motor carriers attempted to immunize themselves from liability for negligent drivers by leasing trucks and nominally classifying the drivers who operated the trucks as “independent contractors.”  See Am. Trucking Ass’ns v. United States, 344 U.S. 298, 304-05 (1954) (detailing pre-amendment problems and abuses that threatened public interest and vitality of the trucking industry); Empire Fire & Marine Ins. Co. v. Guaranty Nat’l Ins. Co., 86 F.2d 357, 362 (10th Cir.1989) (same).  In order to protect the public from the tortuous conduct of the often judgment-proof truck-lessor operations, Congress amended the Interstate Common Carrier Act in 1956 to require interstate motor carriers to assume full direction and control of the vehicles that they leased “as if they were the owners of such vehicles.”  Price v. Westmoreland, 727 F.2d 494, 495-96 (5th Cir. 1984).  The purpose of these amendments was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants.  See Integral Ins. Co. v. Lawrence Fulbright Trucking Inc., 930 F.2d 258, 261 (2nd. Cir. 1991).

The amendments are reflected in the statutory definitions of “employee” and “employer” in section 390.5 of the Federal Motor Carrier Safety Regulations:

“Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety.  Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.  Such term does not include an employee of the United States, any State, any political subdivision of a State, or any agency established under a compact between States and approved by the Congress of the United States who is acting within the course of such employment.”

“Employer means any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it, but such terms does not include the United States, any State, any political subdivision of a State, or an agency established under a compact between States approved by the Congress of the United States.”  49 C.F.R. §390.5.

Notably, the definition of an employee under section 390.5 specifically includes independent contractors. Canal Insurance v. A. & R Transportation and Warehouse LLC, 357 Ill.App.3d 305, 312 (2005).

These broad definitions effectively removed “the common law distinction between employees and independent contractors for drivers of commercial motor vehicles.”  Joyce v. Pedersen, No. 01-2609-GTV, (D. Kansas 2003), citing Consumers County Mutual Insurance Co. v. P.W. & Sons Truking Inc., 307 F.3d 362, 366 (5th Cir.2002).  Put simply, the regulations “eliminate the defense of independent contractor.”  Perry v. Harco Nat. Inc. Co., 129 F.3d 1072, 1075 (9th Cir. 1997), citing Shell v. Navajo Freight Lines, 693 P.2d 382 (Colo. Ct. App. 1984); see also Johnson v. S.O.S. Transport, 926 F.3d 516, 524 n.20 (6th Cir. 1991) (finding that it was “irrelevant” whether the deceased trucker was an employee or an independent contractor because the terms were synonymous in the regulations).  Instead this “statutory employment” theory of vicarious liability imposed by the federal regulations creates both a legal right and duty on the part of a motor carrier to control leased vehicles operated for its benefit.  See Omega Contracting Inc. v. Torres, 191 S.W.3d828, 848 (Tex. App. 2006).

The State of Illinois has adopted most of the Federal Motor Carrier Safety Regulations, including section 390.5. See 625 ILCS 5/18b-105(b) (West 2002); People v. Blackorby, 146 Ill.2d 307,313 (1992).  So it would appear that in the context of a crash involving a commercial motor vehicle, the company(s) for whose benefit the hired-driver was operating cannot rely upon the independent contractor defense.