Uhrhan et al v. B&B Cargo, Inc. et al
Filing
176
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant TQL's motions to dismiss are DENIED without prejudice. (Doc. Nos. 131 , 149 ). Signed by District Judge John A. Ross on 8/5/20. (JAB)
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 1 of 12 PageID #: 947
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WESLEY UHRHAN and SHARON
UHRHAN et al.,
Plaintiffs,
v.
B&B CARGO, INC. et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No. 4:17-cv-02720-JAR
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Total Quality Logistics’s (hereinafter,
“TQL”) motions to dismiss Count III of Plaintiffs Wesley and Sharon Uhrhan’s second amended
complaint, Count IV of Plaintiff Glen Paasch’s first amended complaint, and Count III of Plaintiff
Justine Thompson’s first amended complaint. (Doc. Nos. 131, 149). Both motions request that
the Plaintiffs’ negligent brokering claims—also sometimes referred to as “negligent hiring of an
independent contractor” or “negligent hiring” claims—be dismissed because they are preempted
under the Federal Aviation Administrative Authorization Act (hereinafter, “FAAAA”), 49 U.S.C.
§ 14501(c)(1). The motions are fully briefed and ready for disposition. Because the Parties’
briefing on both motions is nearly identical, the Court will deliver its judgment on both motions in
this Order. For the reasons below, the Court will deny TQL’s motions.
I.
Background
This case is a consolidation of three actions, all arising from a multiple-car accident that
occurred on July 23, 2017. Defendant Gurjit Singh was operating a tractor-trailer on Interstate 44
carrying a load allegedly brokered by TQL when he crossed the median into oncoming traffic,
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 2 of 12 PageID #: 948
causing multiple collisions. Plaintiff Paasch and Plaintiff Thompson both filed lawsuits seeking
damages for the injuries they suffered from the crash. See Paasch v. B&B Cargo, Inc. et al., 4:19cv-02551-JAR; Thompson v. B&B Cargo, Inc. et al, 4:18-cv-02055-JAR. Plaintiffs Wesley and
Sharon Uhrhan filed this lawsuit seeking damages for the wrongful death of their son, Eric Uhrhan.
The Court granted TQL’s motion to consolidate the cases. (Doc. No. 54). All four Plaintiffs have
brought Missouri common law claims of negligent brokering against TQL for brokering the load
to Defendant Singh and Defendant B&B Cargo, Inc. (which owned and operated the truck
Defendant Singh was driving).
II.
Legal Standard
When ruling on a motion to dismiss, the court must accept the allegations contained in the
complaint as true and draw all reasonable inferences in favor of the nonmoving party. Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (internal citations omitted). A dismissal under Rule
12(b)(6) should be granted “only in the unusual case in which a [party] includes allegations that
show, on the face of the complaint, that there is some insuperable bar to relief.” Strand v.
Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004) (quoting Frey v. Herculaneum,
44 F.3d 667, 671 (8th Cir. 1995)). The issue on a motion to dismiss is not whether the party will
ultimately prevail, but whether it is entitled to present evidence in support of its claim. Schuer v.
Rhodes, 416 U.S. 232, 236 (1976). However, to avoid dismissal under Rule 12(b)(6), “the
complaint must contain facts which state a claim as a matter of law and must not be conclusory.”
Briehl v. Gen. Motors Corp., 172 F.3d 623, 627 (8th Cir. 1999) (internal citation omitted).
A defendant may raise the affirmative defense of preemption in a motion to dismiss. See
Dougherty v. Source Nats., Inc., 148 F. Supp. 3d 831, 835 (E.D. Mo. 2015). As the party raising
the affirmative defense of federal preemption, TQL bears the burden of proof that Plaintiffs’ claims
2
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 3 of 12 PageID #: 949
are preempted. Hughs v. Union Pac. R.R. Co., No. 5:15-06079-CV-RK, 2017 WL 1380480, at *1
(W.D. Mo. Apr. 14, 2017).
III.
Discussion
A. Federal Preemption
TQL moves to dismiss Plaintiffs’ Missouri common law negligent brokering claims
because they are expressly preempted by the FAAAA. “The preemption doctrine derives from the
Constitution’s supremacy clause, which states that laws of the United States made pursuant to the
Constitution are the ‘supreme Law of the Land.’” Wuebker v. Wilbur-Ellis Co., 418 F.3d 883, 886
(8th Cir. 2005) (quoting U.S. CONST. ART. VI, cl. 2). A state law is expressly preempted “when a
federal law explicitly prohibits state regulation in a particular field.” Mo. Brd. of Examiners v.
Hearing Help Express, Inc., 447 F.3d 1033, 1035 (8th Cir. 2006).
The FAAAA was enacted by Congress to preempt state trucking regulations in order to
avoid “a patchwork of state service-determining laws, rules, and regulations” that could have an
economic burden on the trucking industry. Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251,
264 (2013) (quoting Rowe v. N.W. Transp. Ass’n, 552 U.S. 364, 373 (2008)). The relevant portion
of the FAAA provides that:
[A] State . . . 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.
49 U.S.C. § 14501(c)(1).
Plaintiffs assert three arguments as to why their claims are not preempted. First, Plaintiffs
argue that a negligent hiring claim is a personal injury cause of action under common law and, as
such, cannot be understood under the statute as a “law, regulation, or other provision” because it
was not enacted by the Missouri legislature. Second, Plaintiffs argue that to the extent a negligent
3
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 4 of 12 PageID #: 950
brokering claim is a law, regulation, or other provision under the statute that it does not “relate[]
to a price, route, or service of any . . . broker . . . with respect to the transportation of property.”
Finally, Plaintiffs argue that even if a negligent brokering claim was related to the price, route, or
services of a broker, it would be saved from preemption because it falls under the statute’s safety
regulation exception. The safety regulation exception is captured in § 14501(c)(2) of the FAAAA
and provides the following limitation on the FAAAA’s preemptive scope:
Paragraph (1) shall not restrict the safety regulatory authority of a State with respect
to motor vehicles, the authority of a State to impose highway route controls or
limitations based on the size or weight of the motor vehicle or the hazardous nature
of the cargo, or the authority of a State to regulate motor carriers with regard to
minimum amounts of financial responsibility relating to insurance requirements
and self-insurance authorization.
49 U.S.C. § 14501(c)(2).
The Court notes that, “[a]s of yet, neither the Supreme Court nor the circuit courts have
addressed the specific issue whether the FAAAA preemption clauses encompass negligence or
negligent-hiring claims in personal injury suits against brokers. The district courts that have
confronted this question are split on both outcome and rationale.” Lopez v. Amazon Logistics, Inc.,
No. 3:19-CV-2424-N, 2020 WL 2065624, at *4 (N.D. Tex. Apr. 28, 2020); see also Gillum v.
High Standard, LLC, No. SA-19-CV-1378-XR, 2020 WL 444371, at *3-5 (W.D. Tex. Jan. 27,
2020) (describing the development of “two diverging lines of cases,” a line of preemption and a
line of no preemption); Loyd v. Salazar, 416 F. Supp. 3d 1290, 1295 (W.D. Okl. 2019) (finding
that “[f]ederal district courts are sharply divided” as to whether personal injury claims alleging
negligence by brokers in selecting motor carriers are preempted by the FAAAA). The Parties’
briefing on this issue reflects the severity of the split, with each being able to find ample caselaw
in support of their position. The Court has considered the arguments of the Parties and, for the
4
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 5 of 12 PageID #: 951
following reasons, ultimately finds that the most persuasive line of cases has found that negligent
brokering claims are not preempted by the FAAAA.
i.
A Negligent Brokering Claim Is a Provision Having the Force and Effect
of Law
Plaintiffs first argue that that the common law claim of negligent brokering cannot be
understood as a state-enforced “law, regulation, or other provision” under the statute. However,
“[t]here is no question that a common law negligence claim embodies a state law that may be
preempted [by the FAAAA] under proper circumstances.” Loyd, 416 F. Supp. 3d at 1295 (citing
Nw., Inc. v. Ginsberg, 572 U.S. 273, 281-82 (2014)). As the Supreme Court has explained in
evaluating identical language found in the Airline Deregulation Act of 1978 (hereinafter, “ADA”),
“It is routine to call common-law rules ‘provisions.’ And a common-law rule clearly has ‘the force
and effect of law.’” Ginsberg, 572 U.S. at 282 (citations omitted). Thus, as a threshold matter,
the Court concludes that Missouri’s common law negligent brokering claim is a state enforced
provision that can be preempted under the FAAAA.
ii.
A Negligent Brokering Claim Relates To the Service of a Broker
Plaintiffs next argue that their claims are not preempted because the tort of negligent
brokering does not “relate[] to a price, route, or service of any . . . broker . . . with respect to the
transportation of property.” 49 U.S.C. § 14501(c)(2). The Supreme Court has instructed that
“[t]he phrase ‘related to’ [in the FAAAA] embraces state laws ‘having a connection with or
reference to’ carrier ‘rates, routes, or services,’ whether directly or indirectly.” Dan’s City Used
Cars, Inc., 569 U.S. at 260 (quoting Rowe, 552 U.S. at 370). Although the Supreme Court has
found that the words “related to” evince a broad preemptive scope, it has also cautioned that “the
breadth of the words . . . does not mean the sky is the limit.” Id. As a result, the FAAAA “does
5
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 6 of 12 PageID #: 952
not preempt state laws affecting carrier prices, routes, and services ‘in only a tenuous, remote, or
peripheral . . . manner.’” Id. (quoting Rowe, 552 U.S. at 375).
Plaintiffs argue that a negligent brokering claim does not relate to the services of a broker
under the statute because such a claim only requires a broker to act reasonably in making its hiring
decisions. Plaintiffs contend that such claims impact all entities doing business in Missouri and
are not directly aimed or targeted at regulating the trucking industry. Because no specific
regulations are mandated in order to comply with the general duty of care, Plaintiffs argue, the
FAAAA’s main goal—to ensure that states do not create a “patchwork” of intrastate trucking
laws—is not implicated. Any indirect impact on a broker’s services as a result of enforcing the
generally applicable common-law duty of care in hiring decisions is, thus, too “tenuous, remote,
or peripheral” to be preempted. (Doc. No. 137 at 10-11; Doc. No. 144 at 8; Doc. No. 155 at 8).
This line of reasoning has been followed by several district courts. See, e.g., Gilley v. C.H.
Robinson Worldwide, Inc., No. CV 1:18-00536, 2019 WL 1410902, at *5 (S.D.W. Va. Mar. 28,
2019) (“In the present case, plaintiffs’ negligent selection claim stems from a personal-injury,
wrongful-death action, and the court finds that this claim does not ‘relate to’ [] broker services. It
affects broker services in ‘too tenuous, remote, or peripheral manner,’ to fall within the purview
of the statutory preemption provision.”); Scott v. Milosevic, 372 F. Supp. 3d 758, 770 (N.D. Iowa
2019) (holding that a negligent brokering claim is better understood as a law related to “safety”
rather than a law related to “service,” based on Eighth Circuit precedent interpreting identical
language in the ADA); Nyswaner v. C.H. Robinson Worldwide Inc., 353 F. Supp. 3d 892, 896 (D.
Ariz. 2019) (“Because this negligent hiring claim is a ‘generally applicable state law that does not
‘otherwise regulate prices, routes or services,’ the Court cannot conclude that it would have a
‘significant impact’ on [the broker’s services].”); Mann v. C. H. Robinson Worldwide, Inc., No.
6
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 7 of 12 PageID #: 953
7:16-CV-00102, 2017 WL 3191516, at *7 (W.D. Va. July 27, 2017) (“[A] negligent hiring claim
as an avenue for imposing liability for an accident does not have anything more than a ‘tenuous,
remote, or peripheral’ connection to the ‘price, route, or service’ of a broker.”).
In response, TQL argues that negligent brokering claims do, in fact, have more than a
tenuous impact on a broker’s services. TQL asserts that negligent brokering claims—unlike
straightforward negligence claims—target the brokering process as a whole by imposing state
created duties above and beyond what is already required by the Federal Motor Carrier Safety
Administration regulations, 49 C.F.R. § 37.1.1 Enforcing such claims would thereby “reshape the
level of service a broker must provide in selecting a motor carrier to transport property” which
would “have a significant economic impact” on a broker’s services. (Doc. No. 148 at 4 (quoting
Gillum, 2020 WL 444371, at *5-6 )). TQL argues that, because negligent brokering claims would
impose a patchwork of state-specific duties, it is clearly preempted by the FAAAA.
TQL’s position has likewise been adopted by several district courts. Gillum, 2020 WL
444371, at *5 (holding that a negligent brokering claim “directly implicates” how brokers perform
its “central function” and are thus preempted); Krauss v. IRIS USA, Inc., No. CV 17-778, 2018
WL 2063839, at *5 (E.D. Pa. May 3, 2018) (“In essence, the plaintiffs allege that [the broker]
should have used a ‘heightened and elaborate’ process of selecting carriers. Such a heightened
process, of course, would ‘necessarily impact directly upon [the broker’s] services . . . .’” (citations
omitted)); Creagan v. Wal-Mart Transportation, LLC, 354 F. Supp. 3d 808, 813 (N.D. Ohio 2018)
(“[B]ecause the negligent hiring claim seeks to enforce a duty of care related to how [the broker]
arranged for a motor carrier to transport the shipment (the service), the claim falls squarely within
1
These regulations set forth the minimum standards for those involved with the operation of
commercial motor vehicles in interstate commerce.
7
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 8 of 12 PageID #: 954
the preemption of the FAAAA.”); Volkova v. C.H. Robinson Co., No. 16-C-1883, 2018 WL
741441, at *3 (N.D. Ill. Feb. 7, 2018) (“A straightforward reading of Plaintiff’s allegations
demonstrates that the negligent hiring claims relate to the core service provided by [the broker]—
hiring motor carriers to transport shipments.”).
Upon consideration, the Court agrees with TQL that negligent brokering claims have more
than a tenuous, remote, or peripheral connection to the services that brokers provide. At base, a
negligent brokering claim—unlike a general negligence claim—directly targets the core service of
TQL: hiring motor carriers to transport shipments. See Volkova, 2018 WL 741441, at *3. Even
though negligent brokering claims do not necessarily create rigid regulations for compliance, the
enforcement of such claims still holds a broker liable to state created standards of care. As such,
the Court agrees that Plaintiffs’ negligent brokering claims relate to the services of TQL and falls
within the scope of 49 U.S.C. § 14501(c)(1).
iii. A Negligent Brokering Claim Falls Under the Safety Regulation Exception
Having found that Plaintiffs’ claims are “related to” TQL’s broker services, the Court must
determine whether one of the exceptions to the FAAAA’s preemptive scope applies. Plaintiffs
argue that their negligent brokering claims fall within the statute’s safety regulation exception,
which states that the FAAAA’s preemption provision “shall not restrict the safety regulatory
authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). They assert that
Missouri common law negligent brokering claims are a part of the state’s longstanding safety
regulatory authority and that such claims fall within the traditional province of the state’s police
powers. (Doc. No. 137 at 12-13; Doc. No. 144 at 9-10; Doc. No. 155 at 9-10).
In response, TQL argues that Plaintiffs’ reading of the safety exception is too broad. First,
TQL argues that the term “regulatory authority” should not be read to encompass a private right
8
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 9 of 12 PageID #: 955
of action. Rather, it alleges that a more natural reading would be to understand “regulatory
authority” as meaning statutes and regulations issued by the state. (Doc. No. 150 at 7 (citing
Huntington Operating Corp. v. Sybonney Exp., Inc., No. CIV.A. H-08-781, 2010 WL 1930087, at
*3 (S.D. Tex. May 11, 2010) (holding that the FAAAA’s safety exception “is not read to permit a
private right of action”)). Second, TQL asserts that even if “regulatory authority” could be read
to encompass a private right of action that negligent brokering claims do not arise under a state’s
regulatory authority “with respect to motor vehicles.” (Id. (citing Creagan, 354 F. Supp. 3d at 814
(“Because the negligent hiring claim seeks to impose a duty on the service of the broker rather
than regulate motor vehicles, I conclude this claim is not within the safety regulatory authority of
the state and the exception does not apply.”)).
The Court is thus faced with two questions: First, whether common law claims can be
understood as an exercise of a state’s “safety regulatory authority” and, second, whether a
negligent brokering claim is a cause of action “with respect to motor vehicles.” In considering
these questions, the Court is guided by the holding of the Supreme Court in City of Columbus v.
Ours Garage and Wrecker Srvc., Inc., which held that the safety regulation exception should be
broadly construed. 536 U.S. 424, 426 (2002). In Ours Garage, the Supreme Court explained:
Preemption analysis start[s] with the assumption that the historic police powers of
the States were not to be superseded by the [FAAAA] unless that was the clear and
manifest purpose of Congress . . . Section 14501(c)(2)(A) seeks to save from
preemption state power in a field which the States have traditionally occupied.
536 U.S. at 424.2
The broad construction of the FAAAA’s safety regulation exception has likewise been discussed
in the Ninth and Fifth Circuits. California Tow Truck Ass’n v. City & Cty. of San Francisco, 807
F.3d 1008, 1022 (9th Cir. 2015) (holding that “regulations directed at safety in a fairly broad sense
are exempt from preemption under the FAAAA’s safety exception); VRC LLC v. City of Dallas,
460 F.3d 607, 612 (5th Cir. 2006) (“Case law both predating and applying the principles discussed
in Ours Garage has on the whole given a broad construction to the safety regulation exception.”).
2
9
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 10 of 12 PageID #: 956
At the outset, the Court is unpersuaded that a state’s “safety regulatory authority”
is limited to state-passed regulations or statutes. “Historically, common law liability has
formed the bedrock of state regulation, and common law tort claims have been described
as a critical component of the States’ traditional ability to protect the health and safety of
their citizens.” Desiano v. Warner-Lambert & Co., 467 F.3d 85, 86 (2d Cir. 2006) (quoting
Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 544 (1992) (Blackmun, J., concurring in part
and dissenting in part)). As a result, the Court finds that common law negligent brokering
claims exist as “a valid exercise of the state’s police power to regulate safety.” Finley v.
Dyer, No. 3:18-CV-78-DMB-JMV, 2018 WL 5284616, at *6 (N.D. Miss. Oct. 24, 2018);
see also Lopez, 2020 WL 2065624, at *7 (giving a thorough explanation as to why the
statutory construction of the FAAAA indicates that “regulatory authority” encompasses
common law rights).
The Court further finds that Plaintiffs’ negligent brokering claim constitutes an
exercise of regulatory authority “with respect to motor vehicles.” “The Supreme Court has
defined the phrase ‘with respect to’ as ‘concerning.’” Lopez, 2020 WL 2065624, at *7
(quoting Dan’s City Used Cars, Inc., 569 U.S. at 261). Here, the Court holds that a
negligent brokering claim—which seeks damages for personal injury against a broker for
negligently placing an unsafe carrier on the highway—“concerns motor vehicles and their
safe operation.” Id.; see also Finley, 2018 WL 5284616, at *6. The Court is persuaded
that this holding is aligned with the central purpose of the FAAAA, which “was enacted
with the primary goal of minimizing economic regulation, not state police power over
safety regulation.” Lopez, 2020 WL 2065624, at *7. As a result, the Court finds that
10
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 11 of 12 PageID #: 957
Plaintiffs’ negligent brokering claims fall within the scope of the safety regulation
exception and, thus, are not preempted by the FAAAA.
B. Failure to Establish a Negligent Brokering Claim Under the FMCSA
In its motions to dismiss, TQL further argues that Plaintiffs’ negligent brokering claims must
be dismissed because their allegations do not state a claim under the Federal Motor Carrier Safety
Administration regulations, (hereinafter, “FMCSA”), which set forth the minimum standards for
those involved with the operation of commercial motor vehicles in interstate commerce. (Doc.
No. 150 at 10). Specifically, TQL argues that the FMCSA only requires that a broker arrange for
transportation of a shipment by an “authorized motor carrier” and that, here, Plaintiffs have not
alleged that TQL selected an unauthorized carrier.
The Court finds TQL’s argument premature at this stage. Setting aside any substantive
questions as to the interaction between the FMCSA and Missouri negligence law, the question of
whether or not TQL selected an authorized carrier is a question of fact that would be
inappropriately decided at the motion to dismiss stage. Here, Plaintiffs’ have alleged that TQL
negligently and carelessly brokered the load carried by the truck at the time of the collision to an
unsafe company and/or driver. (Doc. No. 122 at 7-8; Doc. No. 127at 8; Doc. No. 140 at 7).
Accepting the allegations in the Plaintiffs’ complaints as true and drawing all inferences in the
Plaintiffs’ favor, the Court finds that Plaintiffs have alleged sufficient facts to state a claim of
negligent brokering. Coons, 410 F.3d at 1039. Therefore, the Court will not dismiss Plaintiffs’
claims.
IV.
Conclusion
11
Case: 4:17-cv-02720-JAR Doc. #: 176 Filed: 08/05/20 Page: 12 of 12 PageID #: 958
For the foregoing reasons, the Court finds that Plaintiffs negligent brokering claims are not
preempted by the FAAAA and that the Plaintiffs’ have alleged sufficient facts to withstand a
motion to dismiss.
Accordingly,
IT IS HEREBY ORDERED that Defendant TQL’s motions to dismiss are DENIED
without prejudice. (Doc. Nos. 131, 149).
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 5th day of August, 2020.
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?