Kolchinsky et al v. Bentley et al

Filing 168

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 2/3/2019: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants the motion for summary judgment by Western Dairy Transport, LLC and WD Lo gistics LLC [dkt. no. 129]. All claims against those defendants are dismissed. At tomorrow's status hearing, counsel for the remaining parties should be prepared to discuss a schedule for any further pretrial proceedings, as well as a trial date. (mk)(Kennelly, Matthew)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARINA KOLCHINSKY
and LIDIA KOLCHINSKY,
Plaintiffs,
vs.
WILLIAM BENTLEY, BILL
BENTLEY TRUCKING LLC,
WESTERN DAIRY TRANSPORT,
LLC, and WD LOGISTICS, LLC,
Defendants.

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Case No. 15 C 10544

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Marina Kolchinsky and Lidia Kolchinsky have sued William Bentley, Bill Bentley
Trucking LLC, Western Dairy Transport LLC, and WD Logistics LLC for negligence,
seeking to recover for injuries the Kolchinskys suffered in a collision on October 5, 2014
between a truck driven by Bentley and a car they occupied. The Court's jurisdiction is
based on diversity of citizenship under 28 U.S.C. § 1332(a). See Pl.'s Resp. to Defs.'
L.R. 56.1 Stat. (dkt. no. 150) ¶ 6.
At the time of the collision, Bentley was driving a tractor hauling an empty trailer,
after dropping off a load in Minnesota. The tractor was owned by Bentley Trucking, of
which Bentley was the owner and sole employee. The trailer was provided by WD
Logistics, and it bore Western Dairy Transport logo. Bentley was instructed on where to

haul the trailer by, he testified, Western Dairy Transport. See Pl.'s Ex. 9 (Bentley 2018
Dep.) at 12.
It appears that Bentley and Bentley Trucking hauled trailers exclusively, or
almost exclusively, on Bentley Trucking's contract with WD Logistics. All of the trailers
bore Western Dairy Transport logo and belonged to Western Dairy Transport. Bentley
Trucking and WD Logistics were parties to a "carrier/broker agreement" that, among
other things, required Bentley Trucking to haul all freight tendered by WD Logistics
unless WD Logistics agreed otherwise. Bentley testified that at the time, "I was an
owner-operator leased to Western Dairy," Pl.'s Ex. 8 (Bentley 2016 Dep.) at 23, and he
was working only for Western Dairy, id. at 28, though it's not entirely clear from the
testimony exactly which entity he was referring to when he used the term Western
Dairy. From Bentley's testimony, the line between WD Logistics and Western Dairy
Transport appears to have been a bit blurry (they were affiliated entities with the same
owner, operating out of the same location).
Generally speaking, a person injured by another's negligence must seek her
remedy from the person who caused the injury. Sperl v. C.H. Robinson Worldwide, Inc.,
408 Ill. App. 3d 1051, 1056, 946 N.E.2d 463, 470 (2011) (citing Darner v. Colby, 375 Ill.
558, 560, 31 NE.2d 950, 951 (1941)). But under the doctrine of respondeat superior, a
principal may be held liable for its agent's negligence that caused a plaintiff's injury even
if the principal itself was not negligent. Woods v. Cole, 181 Ill. 2d 512, 517, 693 N.E.2d
333, 336 (1998).
The Kolchinskys argue that WD Logistics and Western Dairy Transport were
operating as a joint venture; Bentley Trucking was acting as their agent at the time of

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the collision; and Bentley was acting as Bentley Trucking's agent. See Pl.'s Mem. in
Opp. to Defs.' Mot. for Summ. J. at 1. The Court need not address the joint venture
contention, because the Kolchinskys' agency argument lacks merit. No reasonable jury
could find that Bentley Trucking was an agent of the alleged Western Dairy-WD joint
venture; rather, the evidence indicates that Bentley Trucking was an independent
contractor.
Although a principal is vicariously liable for its agent's conduct, it is not liable for
the conduct of an independent contractor. Petrovich v. Share Health Plan of Ill., Inc.,
188 Ill. 2d 17, 31, 719 N.E.2d 756, 765 (1999). (The Kolchinskys do not argue that
either of the exceptions to this rule—when the act was pursuant to a direction of the
principal, or the principal did not exercise reasonable care in selecting a careful
contractor, see Horwitz v. Holabird & Root, 212 Ill. 2d 1, 9, 816 N.E.2d 272, 276
(2004)—applies in this case.) The difference between an agency relationship and an
independent contractor relationship involves the level of control over the manner of work
performance. Horwitz, 212 Ill. 2d at 13, 816 N.E.2d at 279. Agency is a consensual
relationship in which a principal has the right to control the agent's conduct and the
agent has the power to affect the principal's legal relations. Sperl, 408 Ill. App. 3d at
1057, 946 N.E.2d at 470. "An independent contractor is one who undertakes to
produce a given result but in the actual execution of the work is not under the orders or
control of the person for whom he does the work but may use his own discretion in
things not specified and without his being subject to the orders of the person for whom
the work is done in respect to the details of the work." Id. (internal quotation marks,
ellipsis, and brackets omitted).

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The agreement between WD Logistics and Bentley Trucking stated that Bentley
Trucking was an independent contractor and not an agent, but the parties' labels are not
dispositive. Sperl, 408 Ill. App. 3d at 1057, 946 N.E.2d at 471. The key consideration is
determining whether a person is an agent or an independent contractor is the right to
control the manner of work performance, regardless of whether that right was exercised.
Id. Another significant factor "is the nature of work performed in relation to the general
business of the employer." Id. at 1057-58, 946 N.E.2d at 471. "Other factors to
consider are: (1) the right to discharge; (2) the method of payment; (3) the provision of
necessary tools, materials, and equipment; (4) whether taxes are deducted from the
payment; and (5) the level of skill required." Id. at 1058, 946 N.E.2d at 471.
In their brief, the Kolchinskys focus only on the key issue of control over the
manner of work performance. They cite the following. Bentley Trucking was hauling
exclusively for Western Dairy/WD Logistics; WD Logistics provided the trailer that
Bentley was hauling at the time of the collision (and the trailer had Western Dairy's logo
on it); Bentley had to call WD Logistics each morning to check in, had specific times for
pickup and drop-off, and had to call if there were anticipated delays; there likely was a
GPS monitoring device on the trailers that Bentley hauled, placed by WD Logistics or
Western Dairy; WD Logistics had the ability to terminate its agreement with Bentley
Trucking at any time; and Bentley Trucking had to get advance approval for extra
charges in advance. See generally Pl.'s Ex. 1 (broker-carrier agreement), App'x B.
None of this, however, indicates any degree of control by WD Logistics/Western
Dairy over the manner of Bentley Trucking's performance of the work. The case is, in
this regard, similar to Dowe v. Birmingham Steel Corp., 2011 IL App (1st) 091997, ¶ 32,

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963 N.E.2d 344, 352, in which the court concluded that the trucker was an independent
contractor of the shipper, not its agent. The fact that the WD/Western wanted to know
whether their loads would be delivered on time and keep track of their location does not
suggest direction or control over how Bentley Trucking carried out the work of hauling
trailers and loads from one location to another. See Scheinman v. Martins' Bulk Milk
Serv., Inc., No. 09 C 5340, 2013 WL 6467525, at *10 (N.D. Ill. Dec. 9, 2013) (collecting
cases). And the fact that Bentley Trucking appears to have been hauling loads only for
WD/Western Dairy would not permit a reasonable jury to find that he was their agent,
even with the other factors cited. In this regard, this case is similar to Dowe, in which
(as indicated) the court determined that the relationship was that of an independent
contractor, not an agent. Indeed, an argument can be made that WD/Western had a
more hands-off relationship with how the work was done than the shipper in Dowe. In
that case, the fact that the driver was doing a large volume for the shipper, considered
himself the "house truck" for the shipper, loaded the truck under the shipper's written
rules governing the conduct of drivers at its facility, and could be terminated by the
shipper if not driving safely was insufficient to permit a reasonable inference of an
agency relationship. Id. ¶¶ 32-33, 963 N.E.2d at 351-52. "None of these factors gave
[the shipper] the authority to control the manner in which" the driver hauled the load to
its destination. Id. ¶ 33, 963 N.E.2d at 352. The same is true here. See also Petersen
v. U.S. Reduction Co., 267 Ill. App. 3d 775, 783, 641 N.E.2d 845, 851 (1994) (shipper's
providing of trailers in which load was to be hauled was "an insignificant retention of
control" over the manner of work). In this case as in Dowe, Bentley Trucking chose the

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route it would take, controlled its own hours, and provided the tractor, and Bentley was
paid by Bentley Trucking, not by WD/Western.
This case is not similar to Sperl, the case upon which the Kolchinskys rely the
most heavily. In Sperl, the appellate court concluded that there was a reasonable basis
supporting a finding of an agency relationship and thus declined to overrule a finding of
vicarious liability against the defendant, a logistics company that provided
transportation-related services. In Sperl as in this case, the driver had to pick up the
load at a specified time and make check-in calls with the defendant. But there was
much more: the driver had to "stay in constant communication" with the defendant's
dispatchers; she was required to follow special instructions concerning the load she was
hauling; she "was required to continuously measure the temperature of the load during
her trip" and had to call the defendant immediately if it did not meet a certain
temperature; and the defendant "enforced its special instructions with a system of
fines." Sperl, 408 Ill. App. 3d at 1058, 946 N.E.2d at 471-72. The defendant's
requirements effectively required the driver to violate federal regulations regarding the
hours a truck driver can drive in a day in order to deliver her load on time, as she would
be fined for late delivery. Id. at 1058, 946 N.E.2d at 472. These requirements and the
fine-based enforcement, the court concluded, "directed [the driver's] conduct during the
entire transportation process," thus supporting the finding that the defendant had the
right to control the manner in which the driver performed her job. Id. The same is not
true in this case.
For these reasons, the Court concludes that no reasonable jury could find that
Bentley Trucking was an agent of WD Logistics/Western Dairy, as opposed to an

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independent contractor. WD Logistics and Western Dairy are therefore entitled to
summary judgment.
Conclusion
For the reasons stated above, the Court grants the motion for summary judgment
by Western Dairy Transport, LLC and WD Logistics LLC [dkt. no. 129]. All claims
against those defendants are dismissed. At tomorrow's status hearing, counsel for the
remaining parties should be prepared to discuss a schedule for any further pretrial
proceedings, as well as a trial date.
Date: February 3, 2019
________________________________
MATTHEW F. KENNELLY
United States District Judge

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