Stephanie A. Sparks, Personal Representative of the Estate of Gary W. Isom, deceased, et al., APPELLANTS AND CROSS-APPELLEES,
M&D Trucking, L.L.C., appellee AND CROSS-APPELLANT.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
___. In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, for which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
Summary Judgment. On a motion for summary
judgment, the question is not how a factual issue is to be
decided, but whether any real issue of material fact exists.
Employer and Employee: Independent Contractor: Master
and Servant. Ordinarily, a party's status as an
employee or an independent contractor is a question of fact.
However, where the facts are not in dispute and where the
inference is clear that there is, or is not, a master and
servant relationship, the matter is a question of law.
Contracts: Parties: Words and Phrases. By
stating "where the inference is clear," the
Nebraska Supreme Court means that there can be no dispute as
to pertinent facts pertaining to the contract and the
relationship of the parties involved and only one reasonable
inference can be drawn therefrom.
Neb. 978] 7. Employer and Employee:
Independent Contractor. A determination of a
party's status as an employee or an independent
contractor is determined from all the facts in the case and
depends on the facts underlying the relationship of the
parties irrespective of the words or terminology used by the
___. No single test exists for determining whether one
performs services for another as an employee or as an
independent contractor, and the following 10 factors must be
considered: (1) the extent of control which, by the
agreement, the potential employer may exercise over the
details of the work; (2) whether the one potentially employed
is engaged in a distinct occupation or business; (3) the type
of occupation, with reference to whether, in the locality,
the work is usually done under the direction of the potential
employer or by a specialist without supervision; (4) the
skill required in the particular occupation; (5) whether the
potential employer or the one potentially employed supplies
the instrumentalities, tools, and the place of work for the
person doing the work; (6) the length of time for which the
one potentially employed is engaged; (7) the method of
payment, whether by the time or by the job; (8) whether the
work is part of the regular business of the potential
employer; (9) whether the parties believe they are creating
an agency relationship; and (10) whether the potential
employer is or is not in business.
____. The extent of control is the chief factor
distinguishing an employment relationship from that of an
independent contractor. 10. _:. In examining the extent of a
potential employer's control over the worker, it is
important to distinguish control over the means and methods
of the assignment from control over the end product of the
work to be performed.
Independent Contractor: Words and Phrases.
An independent contractor is one who, in the course of an
independent occupation or employment, undertakes work subject
to the will or control of the person for whom the work is
done only as to the result of the work and not as to the
means or methods used.
Independent Contractor: Contracts. Even the
party contracting with an independent contractor may, without
changing the status, exercise such control as is necessary to
assure performance of the contract in accordance with its
Negligence: Liability: Contractors and
Subcontractors. Generally, one who employs an
independent contractor is not liable for physical harm caused
to another by the acts or omissions of the contractor or its
___:___: ___. A party contracting with an independent
contractor can be liable for physical harm caused to another
if (1) the contracting [301 Neb. 979] party retains control
over the contractor's work, (2) the contracting party is
in possession and control of premises, (3) a statute or rule
imposes a specific duty on the contracting party, or (4) the
contractor's work involves special risks or dangers.
Courts often refer to the latter three exceptions as
involving nondelegable duties.
Negligence: Liability: Contractors and
Subcontractors: Words and Phrases. A nondelegable
duty means that a contracting party to an independent
contractor, by assigning work consequent to a duty, is not
relieved from liability arising from the delegated duties
Contractors and Subcontractors: Liability.
To fall within the control exception to the general rule of
nonliability, the contracting party's involvement in
overseeing the work must be substantial.
___: ___. To fall within the control exception to the general
rule of nonliability, control must directly relate to the
work that caused the injury.
___. The key element of control must exist with respect to
the very thing from which the injury arose.
___: ___. To impose liability, the contracting party must
have (1) supervised the work that caused the injury, (2)
actual or constructive knowledge of the danger that
ultimately caused the injury, and (3) the opportunity to
prevent the injury.
Negligence: Contractors and Subcontractors.
Having the right to control and supervise the work implies
having the ability to oversee and direct the manner in which
the work which caused the injury is carried out.
Federal Acts: Motor Carriers: Judgments:
Proof. The federal Motor Carrier Safety Improvement
Act of 1999 and the Federal Motor Carrier Safety Regulations
generally require that a commercial motor carrier operate
only if registered and that such registration requires proof
of financial responsibility in order to ensure collectability
of a judgment against the motor carrier.
Federal Acts: Motor Carriers: Intent. The
federal Motor Carrier Safety Improvement Act of 1999 and the
Federal Motor Carrier Safety Regulations protect the public
and provide financial responsibility for motor carrier
accidents by creating a legal right and a duty to control
vehicles operated for the regulated motor carrier's
Motor Carriers: Brokers: Liability. When
distinguishing between a motor carrier and a broker, the
determinative question is whether the disputed party accepted
legal responsibility to transport the shipment.
Motor Carriers: Brokers. A transportation
company may have authority to act as a shipper, broker, or
carrier, and a court must focus on the [301 Neb. 980]
specific transaction at issue-not on whether the
transportation company acts as a motor carrier in other
Negligence: Liability: Employer and Employee:
Independent Contractor. An employer is subject to
liability for physical harm to third persons caused by the
employer's failure to exercise reasonable care in
selecting an employee, even if such employee is an
Federal Acts: Motor Carriers: Records. The
federal Motor Carrier Safety Improvement Act of 1999 and the
Federal Motor Carrier Safety Regulations require motor
carriers to obtain and maintain records on each of the
drivers they employ, such as driving and medical records.
from the District Court for Douglas County: Timothy P. Burns,
Patrick R. Turner, Steven G. Emerson, Thomas H. Davis, and
Bradley J. Yeretsky, of Stinson, Leonard & Street, L.L.P,
A. Grennan and Adam J. Wachal, of Gross & Welch, PC,
L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg JJ.
A. Sparks, as personal representative of the estate of Gary
W. Isom and as temporary guardian of Justin W. Isom; Melanie
Crosby, as personal representative of the estate of Tiffany
R. Isom; and Nancy Ragains, as personal representative of the
estate of Susan G. Isom (appellants), appeal the district
court's order granting the motion for summary judgment of
M&D Trucking, L.L.C. (M&D). M&D cross-appeals.
For the reasons set forth herein, we affirm.
5 a.m. on August 28, 2014, Kenneth Bryan Johnson was driving
a truck and trailer and failed to stop at a stop sign, [301
Neb. 981] striking a vehicle carrying members of the Isom
family: Gary. Susan, their son Justin, and Gary's adult
daughter Tiffany. Gary, Susan, and Tiffany died as a result
of the collision, and Justin was seriously injured. Johnson
had been driving longer than permitted under applicable law,
and Johnson had consumed alcohol less than 4 hours before
going on service. Johnson had a criminal history relating to
the operation of motor vehicles, including driving on a
suspended license, driving without a license, and driving
under the influence of alcohol.
contracted with Turbo Turtle Logistics LLC (Turbo Turtle) and
was driving a truck and trailer with Turbo Turtle signage on
the date of the accident. According to deposition testimony
from Turbo Turtle president Robert Brackett, Turbo Turtle is
a logistics and brokerage company; logistics meaning the
physical transportation of products, and brokerage meaning
the arranging of transportation of freight by others. At the
time of the accident, Turbo Turtle was a motor carrier. At
all relevant times, Brackett testified that he was the only
employee of Turbo Turtle and that the drivers were
independent contractors. Brackett explained Johnson had been
one of Turbo Turtle's independent contractor drivers
approximately 30 days prior to the accident and that he
leased a truck and trailer from Turbo Turtle during that
time. Johnson was not allowed to use Turbo Turtle's
equipment for any work that was not dispatched through Turbo
Turtle or M&D, the company which was hired to transport
the load Johnson carried during the accident.
Turtle had had a business relationship with M&D since
Turbo Turtle's creation in 2012. Brackett testified that
Turbo Turtle got involved with M&D because Turbo Turtle
was trying to add trucks and did not have time to look for
work. Brackett opined that, likely, M&D worked with Turbo
Turtle to add to its capacity in using Turbo Turtle's
drivers, trucks, and trailers. From its inception until the
end of its relationship with M&D, Brackett explained that
about 98 percent of Turbo Turtle's work came from
Neb. 982] M&D operates as a brokerage and trucking
company. M&D did not have an ownership interest in Turbo
Turtle. At the time of the accident, Michael Plambeck was the
manager and Dan Rudnick assisted. According to Plambeck,
through its trucking division, M&D employed four to five
drivers who drove trucks and trailers owned by M&D.
Through its brokerage division, M&D got orders from
customers and then sent the load information out to M&D
drivers or other carriers. According to Rudnick,
M&D's customers did not know which loads would be
assigned to M&D drivers and which would be assigned to
other carriers. The customers would be billed the same amount
regardless of which type of driver was used. While not
separate companies, M&D had separate licensing for its
brokerage and trucking services and separate insurance plans.
and Turbo Turtle signed a contract detailing the relationship
between the companies titled "Contract for Dispatch
Services at Reduced Rate With Mutual Non-Competition Upon
Early Termination by Either Party." The contract
provided that M&D would be the exclusive dispatch
servicer for Turbo Turtle with an exception for summer and
fall harvesttime in South Dakota. As to Turbo Turtle's
drivers, the contract stated, "[Turbo Turtle] will
assure that at least 42 weeks of the yearly hauling in total
for all of the [independent contractors] under contract with
[Turbo Turtle] results from M&D dispatch services";
"[Turbo Turtle] will maintain at least one [independent
contractor] under dispatch by M&D at all times"; and
"this contract does not require the dedication by [Turbo
Turtle] of a particular [independent contractor] to dispatch
by M&D." It additionally applied a 2-year,
noncompetition agreement should the parties prematurely break
the contract. By operation of this contract, Brackett claimed
M&D was leasing his four Turbo Turtle trucks. Plambeck,
in turn, asserted that any drivers arranged through Turbo
Turtle were Turbo Turtle employees or contractors and, as
such, M&D never conducted background checks, criminal
history background checks, review of a driver's driving
record or traffic violations, or [301 Neb. 983] review of the
performance of Turbo Turtle's drivers. Instead. Plambeck
testified, M&D requested and received from Turbo Turtle
various legal forms necessary for work between a broker and
carrier, including a "DOT motor carrier number"
saying Turbo Turtle is legally allowed to haul freight,
insurance verification, and W-9 forms for tax purposes.
Brackett alleged the contract between M&D and Turbo
Turtle was in effect at the time of the accident. Plambeck
claimed that M&D terminated the contract on August 28,
2014, once they became aware that Turbo Turtle hauled a load
for a different company, while Brackett opined that the
contract was terminated in connection with the accident.
Plambeck, and Rudnick explained the general procedure between
M&D and Turbo Turtle for assigning and transporting hired
loads. Plambeck described that a customer would communicate
the details of a load to M&D; M&D would document the
information on a "load sheet" with the load number,
pickup location, destination, telephone numbers, and load
quantity; M&D would communicate to Turbo Turtle or a
specific driver the load information; and the driver would
receive a paper at the pickup and destination and that paper
would be sent to M&D for billing purposes. Brackett
explained M&D would communicate the load information to
Turbo Turtle by sending the individual drivers text messages
and Turbo Turtle a copy of those messages. According to
Brackett, Turbo Turtle would have no knowledge of who the
actual customers were. For payment on loads carried by Turbo
Turtle drivers, M&D would charge the customer the same
amount as it would have if it used its own driver, M&D
would keep a percentage of the total and pay the rest to
Turbo Turtle, and Turbo Turtle would keep a percentage of the
amount provided by M&D and pay the rest to the driver.
on the facts surrounding the accident at issue, M&D had a
telephone conversation with Northern Ag Service, Inc., now
known as NORAG LLC (Northern Ag), about picking up fracking
sand from Genoa, Nebraska, to transport to [301 Neb. 984]
Blackwell, Oklahoma. Northern Ag is a freight broker, meaning
vendors call Northern Ag about moving various loads and
Northern Ag then matches the vendor with a carrier or.
sometimes, with another broker who contacts another carrier.
M&D did not tell Northern Ag which of the ordered loads
would be handled by M&D and which would be handled by
testified that Northern Ag was fully aware that M&D was a
brokerage and trucking company and that it used its own
company drivers as well as drivers from other companies to
haul loads for Northern Ag. However, there was no written
contract in place detailing the relationship between M&D
and Northern Ag, and a manager for Northern Ag testified
during a deposition that M&D never informed Northern Ag
that it was working with outside drivers. He explained that
he believed Northern Ag thought it was dealing only with
M&D, not knowing Turbo Turtle was handling some of its
loads, and that Northern Ag hired M&D to be the carrier.
In various records of pickup and destination locations
created by Northern Ag for its use, Northern Ag repeatedly
listed M&D as the carrier. In the origin ticket/origin
bill of lading created by Northern Ag for the load carried
during the accident, M&D was listed as the carrier on the
August 27 and 28, 2014, M&D, Turbo Turtle, and Johnson
had various cell phone communications. Plambeck testified
that around 11 p.m., someone from M&D text messaged
either Turbo Turtle or Johnson about carrying one of the
Northern Ag loads. Rudnick explained that he had contact with
either Turbo Turtle or Johnson that night, because a load
number did not work and Rudnick had to provide a new number.
Plambeck testified Johnson was not required to call M&D
once he picked up the load. From information obtained from
Johnson's cell phone, the following communications
•At 9:01 a.m. on August 27, 2014, M&D text messaged
Johnson and canceled a load that he was carrying for M&D
due to rain.
[301 Neb. 985] •Approximately 30 minutes later, M&D
text messaged Johnson and dispatched him and his truck to
transport a load of sand from Genoa, Nebraska, to Waterford
City, North Dakota.
• At 10:47 a.m., Johnson made a short telephone call to
• At 10:53 a.m., Johnson text messaged Turbo Turtle and
informed it that M&D had dispatched him on a load from
Genoa to Waterford City.
• At 11:43 p.m., Johnson received a text message from
Turbo Turtle stating, "Genoa, NE Sand to Blackwell,
• At 12:09 a.m. on August 28, 2014, Johnson received a
telephone call from M&D lasting approximately 1 minute 41
• At 12:41 a.m., Johnson received a telephone call from
M&D lasting approximately 8 minutes 41 seconds.
• From 12:54 a.m. to 12:58 a.m., Johnson and Turbo
Turtle exchanged six text messages, including discussions
about truckstops ...