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Susan D. Sperl, Individually and As v. C.H. Robinson Worldwide

March 30, 2011

SUSAN D. SPERL, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE , OF JOSEPH G. SPERL, DECEASED,
PLAINTIFF-APPELLEE,
v.
C.H. ROBINSON WORLDWIDE, INC.,
DEFENDANT-APPELLANT C.H. ROBINSON WORLDWIDE-LTL, INC., C.H. ROBINSON COMPANY, INC., D/B/A C.H. ROBINSON INTERNATIONAL, INC., DEAN J. HENRY, TOAD L. DRAGONFLY EXPRESS, PBX, INC., D/B/A TYSON FOOD LOGISTICS, A FOREIGN CORPORATION, TYSON FRESH MEATS, INC., A FOREIGN CORPORATION AND ) MICHAEL R. SMITH, DEFENDANTS
WILLIAM TALUC AND SKYE TALUC,
PLAINTIFFS-APPELLEES,
v.
C.H. ROBINSON WORLDWIDE, INC., AND C.H. ROBINSON COMPANY, DEFENDANTS-APPELLANTS
C.H. ROBINSON COMPANY, INC., C.H. ROBINSON INTERNATIONAL, INC., C.H. ROBINSON WORLDWIDE- LTL, INC., DEAN HENRY, INDIVIDUALLY AND D/B/A DJ TRANSPORT, MICHAEL R. SMITH, INDIVIDUALLY AND D/B/A TOAD L. DRAGON FLY EXPRESS, LUANN G. WHITENER-BLACK, INDIVIDUALLY AND D/B/A TOAD L. DRAGONFLY EXPRESS, DEFENDANTS
ANNETTE SANDERS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF THOMAS S. SANDERS, DECEASED,
PLAINTIFF-APPELLEE,
v.
C.H. ROBINSON WORLDWIDE, INC., AND C.H. ROBINSON COMPANY, REFERRED TO AS C.H. ROBINSON WORLDWIDE, DEFENDANTS-APPELLANTS
C.H. ROBINSON INTERNATIONAL INC., C.H. ROBINSON COMPANY, INC., C.H. ROBINSON COMPANY, LP, C.H. ROBINSON WORLDWIDE FOUNDATION, DEAN J. HENRY, LUANN G. WHITENER-BLACK AND MICHAEL R. SMITH, INDIVIDUALLY AND D/B/A TOAD L. DRAGONFLY EXPRESS,
DEFENDANTS.



Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois, Nos. 04--L--428, 05--L--812, 09--L--005 Honorable James E. Garrison, Judge, Presiding.

The opinion of the court was delivered by: Justice Lytton

JUSTICE LYTTON delivered the judgment of the court, with opinion.

Justices Holdridge and McDade concurred in the judgment and opinion.

OPINION

Plaintiffs, Susan Sperl, individually and as the executor of the estate of Joseph Sperl; Annette Sanders, individually and as the administrator of the estate of Thomas Sanders; and William and Skye Taluc, filed a complaint against, among others, defendant C.H. Robinson Worldwide, Inc., a/k/a C.H. Robinson Company (CHR), for wrongful death and personal injuries they sustained due to DeAn Henry's negligent operation of a tractor-trailer. The jury concluded that CHR was vicariously liable based on agency and entered judgment in favor of plaintiffs in the amount of $23,775,000. The trial court denied CHR's motion for judgment notwithstanding the verdict (judgment n.o.v.) or a new trial. On appeal, CHR claims that (1) the evidence failed to establish an agency relationship, and (2) the trial court erred in refusing to allocate fault with Henry and her employer, Luann Whitener-Black, d/b/a Toad L. Dragonfly Express (Dragonfly). We affirm.

On the morning of April 1, 2004, Henry was driving a tractor-trailer containing a load of potatoes from Idaho to CHR's warehouse in Bolingbrook, Illinois. As she approached Plainfield, traveling on Interstate 55, she noticed that the vehicles ahead of her were not moving. Henry was unable to stop her truck and ran over several vehicles, causing a multiple-car accident. Joseph Sperl and Thomas Sanders died in the collision, and William Taluc sustained serious injuries. Henry owned the tractor she was driving and leased it to Dragonfly, a motor carrier. On that day, Henry was delivering a load for CHR.

Plaintiffs sued Henry, Dragonfly and CHR for wrongful death and personal injuries sustained as a result of Henry's negligence. Henry and Dragonfly admitted liability. CHR denied liability and sought contribution from Henry and Dragonfly.

At trial, the evidence revealed that CHR is a logistics company that provides a variety of transportation-related services. It is a federally licensed freight broker. At the time of the accident, it was not a licensed motor carrier. CHR does not own tractor-trailers, nor does it employ drivers. Instead, CHR sells its services to customers or shippers needing to transport goods and then contracts with carriers to provide transportation for its customers.

A network of federally licensed carriers hauls freight, primarily perishable products, for CHR and its customers. Dragonfly is one of those carriers. In March of 2002, Dragonfly and CHR entered into a contract carrier agreement that was standard for the industry. It provided that CHR was exclusively liable for Dragonfly's freight charges; CHR's customers had no obligation to pay Dragonfly. Dragonfly agreed that all transportation provided to CHR would be performed under the contract. It warranted that it would use competent drivers. Dragonfly also warranted that neither CHR nor its customers were responsible for the drivers' salaries, wages, charges, or worker's compensation expenses. The contract described the relationship between the parties as follows:

"The parties understand and agree that the relationship of Carrier to Robinson [CHR] hereunder is solely that of an independent contract and that Carrier shall and does, employ, retain or lease on its own behalf all persons operating motor vehicles transporting commodities under this Contract."

Once a carrier signed a contract carrier agreement, it could begin to haul loads for CHR. Upon arranging a delivery, CHR issued a load confirmation sheet (LCS) for the load. The LCS identified the carrier, driver, product and rate. It also included any special instructions that applied to the load.

In 2004, Jewel Food Stores began remodeling its supermarket distribution center and searching for an alternative warehouse that could temporarily distribute its perishable products. Jewel representatives knew that CHR was a federally licensed seller of produce and fruit and could handle special projects. CHR was able to offer multiple temperature storage capabilities and could transport perishable items to Jewel's stores. As a result, Jewel entered into a delivery contract with CHR in which CHR purchased produce for Jewel, stored it, and then arranged for transportation to Jewel's various grocery stores.

Henry owned her semi-tractor and leased it to Dragonfly. In the spring of 2004, Dragonfly gave Henry permission to use its carrier authority to book and deliver loads on her own. If Henry booked a load, she kept all the profit. If Dragonfly dispatched Henry, Dragonfly kept 5%.

On March 29, 2004, Henry called Troy Pleasants, a transportation manager in CHR's Bolingbrook office, and requested a load. Pleasants offered a load of potatoes that CHR had recently purchased in Idaho. The potatoes were to be loaded and delivered to CHR's Bolingbrook warehouse, where they would be repackaged and shipped to various Jewel grocery stores. Pleasants stated that CHR required a refrigerated trailer that measured at least 48 feet in length for the job. Henry accepted the load for a payment of $1,800, less a $700 advance for fuel.

CHR sent Dragonfly an LCS confirming the shipment. At the top of the LCS, in bold-face type, it stated: "Driver must call Troy Pleasants for dispatch." Under the subheading "DRIVER SPECIAL INSTRUCTIONS", it listed the following requirements:

"1. Driver must make check calls daily by no later than 10 am CST daily or $50 will be deducted from the rate.

2. Driver must verify package count and/or pallet count being loaded on the truck.

3. Driver may incur a fine of $500 for being a full day late, without any ...


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