Kevin L. Henderson prevails on Motion for Summary Judgment in favor of XPO Logistics, LLC.

Facts: On March 21, 2020, Plaintiff was injured in an accident on I-40 in Oklahoma City, Oklahoma. At the time of the accident, Plaintiff’s co-driver, an agent of the independent third-party motor carrier that employed Plaintiff and the driver, lost control of the tractor-trailer that he was driving, causing it to collide with the right-hand barrier of the freeway and then the left-hand barrier of the freeway, while Plaintiff was sleeping on the bottom bunk of the 2016 Freightliner Cascadia’s sleeper compartment.  The accident resulted in Plaintiff sustaining, among other injuries, severe fractures of C4 and C5 which left him paralyzed from the shoulders down.  Plaintiffs sought $100,000,000.00 from the Defendants.  

Plaintiff and his wife sued XPO for negligence and negligent hiring, supervision and retention.  Plaintiffs alleged, among other things, that XPO negligently and recklessly owned, leased, managed, maintained, entrusted, controlled and operated the subject vehicle.  Furthermore, that XPO, a federally licensed freight broker, was acting as a motor carrier and therefore had a non-delegable duty.  Lastly, that XPO failed to act reasonably in hiring, retention, training and supervision of its agents, employees and/or independent contractors, including the independent third-party motor carrier and Plaintiff’s co-driver. 

Strategy: Prove that XPO was a freight broker and not a motor carrier such that the non-delegable duty appliable to motor carriers did not apply to XPO.  Furthermore, that XPO did not take possession of the freight, did not control the means/methods of the transportation services provided by the independent third-party motor carrier, did not own the tractor-trailer involved in the accident, and did not select the driver.  Lastly, to prove that bills of lading which listed XPO as the “carrier” were prepared by a third-party and that the reference was solely for the convenience of the third-party and did not change XPO’s status as broker.  Outcome: Despite Plaintiffs’ best efforts to make XPO into a “motor carrier”, the Court found, rightfully, that XPO Logistics, LLC was a broker and thus did not owe Plaintiff a non-delegable duty.  The Court also found that the independent third-party motor carrier was not XPO’s agent and that Plaintiff, as an employee of an independent contractor, was barred from seeking recovery against XPO under the theory of negligent hiring.  As a result, the Court granted Summary Judgment.