United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DEFENDANT DLS'S MOTION FOR SUMMARY
J. McKINNEY, JUDGE.
matter comes before the Court on Defendant DLS Logistics,
LLC's (“DLS”) three separate Motions for
Summary Judgment on the claims of negligence brought against
it by Plaintiffs Gregory Lacy, Zachary Wright, and Mistikae
Elizabeth Tipton (collectively “Plaintiffs). Each of
the Plaintiffs alleges negligence against DLS, Time Dispatch
Service, Inc. (“TDS”), and Paul Morris, following
an accident in which a vehicle driven by Morris allegedly
resulted in injuries to each of the Plaintiffs.
reasons set forth below, the Court DENIES DLS's Motion
for Summary Judgment.
RELATIONSHIP BETWEEN DLS AND TDS
“Cecil” Dennis is the sole owner of DLS. Dennis
Dep. 18:17-18. DLS is in the trucking business and
facilitates the movement of goods through dispatching and
labor if it utilizes its own trucks. Id. 41:8-17.
TDS is a motor carrier similar to DLS, but rather than employ
its own drivers or purchase trucks, it relies on contracted
agents, like DLS, to solicit business under its United States
Department of Transportation (“DOT”) authority.
Dunn Dep. 26:14-23.
April 21, 2010, DLS and TDS signed an Agent Agreement wherein
DLS acted as TDS's agent and solicited “interstate
and intrastate shipments of property for transportation in
interstate and intrastate commerce.” Dennis Dep.
Pl.'s Ex. 26, ¶ 1 (hereinafter “Agent
Agreement”). DLS was also responsible for
“provid[ing] personnel, office space and telephone
equipment, at it's [sic] expense sufficient to properly
perform as Agent for Time Dispatch Services.”
Id. ¶ 5. DLS also warranted that it would
ensure compliance with the laws and regulations of the DOT.
Id. In turn, TDS represented that it was a Licensed
Broker authorized by the DOT, which authorized brokerage and
carrier operations in interstate commerce. Id. TDS
provided that it would “fully control and be
responsible for all shipments handled under its authority. As
any shipment is solicited by [DLS], the latter will inform
Time Dispatch Services … of the origin and destination
of said shipment and, if brokered, the identity of carrier to
be utilized.” Id. ¶ 3. The Agent
Agreement further provided that DLS would receive 85% of the
gross revenue plus a 2% bonus minus Lessor pay as
compensation for its service. Id. ¶ 12.
August 2011, DLS purchased a 1995 Freightliner Truck. Dennis
Dep. 26:14-23. On September 2, 2011, Dennis signed a TDS
Truck Application Contract Operating Agreement, which listed
DLS as the contractor and TDS as the carrier. Dennis Dep.
Pl.'s Ex. 28 (hereinafter “Operating
Agreement”). TDS did not sign the Operating Agreement.
Id.; Dennis Dep. 27:12-28:16. Nonetheless, TDS sent
the hard license plate and the cab card to DLS, which Dennis
interpreted as validating the Operating Agreement. Dennis
Dep. 28:7-11. At Dennis' instruction, DLS employee Paul
Morris placed the TDS stickers on the truck. Morris Depo.
127:2-128:21. The Operating Agreement states that
“[TDS], a for-hire motor carrier, operating under
authority issued by the Interstate Commerce Commission wishes
to obtain transportation with equipment it does not own
through an agreement with [DLS].” Operating Agreement.
It further stated that DLS agreed “to use all necessary
labor to transport, load, and unload on behalf of such other
carriers as [TDS] may designate.” Id., ¶
1. Under the Operating Agreement, DLS received 75% of the
gross revenue of all loads. Id., ¶ 2. The
Operating Agreement also stated that “[i]f an accident
claim arises out of the driver's negligence the full
responsibility of the claim with be [DLS]'s
responsibility.” Id., ¶ 3.
testified that the Operating Agreement meant that DLS
operated under TDS's DOT number and that TDS acted as the
operating authority responsible for the load. Dennis Dep.
25:6-14. Dennis described TDS as a “silent partner
banker, ” stating that TDS provided money up front
along with insurance. Id. 40:24-41:7. In return, DLS
provided dispatching services for the shipment, unless one of
its trucks was assigned the task of delivering the shipment,
as was the case the day of the accident, in which case it
would also provide the driver and the vehicle. Id.
PAUL MORRIS' EMPLOYMENT WITH DLS
hired Paul Morris to be a truck driver sometime in 2009.
Morris Dep. 16:16-23. At all times, Morris considered himself
to be a DLS employee whose duty was to drive DLS trucks.
Id. 34:19-35:7; 58:5-11. Dennis paid Morris weekly
in cash. Dennis Dep. 52:1-5. Morris worked directly for
Dennis and would do whatever task Dennis required of him.
Id. 35:17-22; Morris Dep. 34:19-35:7. Morris stated
that he only answered to Dennis, who he considered one in the
same with DLS. Morris Dep. 43:14-44:10. In addition to
driving trucks, Morris repaired and performed maintenance on
DLS equipment. Id. 49:5-10. Morris also stayed in
DLS's trailer and kept an eye on the property.
Id. 65:7-66:21. Dennis provided Morris a universal
key that worked on most of the Freightliner trucks. Dennis
Dep. 36:11-18. Morris stated that he “always had
permission to drive [Dennis'] vehicles” and that he
was unaware of any of the insurance issues with respect to
the trucks on the lot. Morris Dep. 80:17-81:19. Morris
believed that he had permission to drive all DLS trucks,
including the Freightliner involved in the accident.
approved Morris as a driver until he failed a drug screening,
which resulted in termination of his eligibility to drive for
TDS. Id. 48:4-22; Dennis Dep. 119:8-120:12. TDS sent
Morris a letter indicating that he was disqualified from
driving for TDS. Morris Dep., Def.'s Ex. 25. The letter
stated that “DOT regulations require [TDS] to
immediately remove you from performing any DOT
safety-sensitive duties, including, but not limited to,
Commercial Driving Duties. This disqualification applies to
performing any type of DOT safety-sensitive duties for any
employer.” Id. The letter further admonished
that, in order to resume his driving privileges, Morris would
have to be evaluated by a Qualified Substance Abuse
did not receive the letter from TDS, but was informed by
Dennis that he could no longer drive for TDS. Morris Dep.
77:24-78:16. Even after receiving this information from
Dennis, Morris believed he could still drive the TDS freight
if so instructed by Cecil. Id. 78:17-25. Indeed,
approximately four months after the failed drug test, and
without approval from TDS or evaluation by a Qualified
Substance Abuse Professional, Morris resumed hauling TDS
freight with Dennis' permission. Id. 87:12-89:8.
Dennis admitted that Morris, following the failed drug test
and receipt of the TDS disqualification letter, had at least
“pulled a few” TDS loads, although he could not
recall how many. Dennis Dep. 14:5-18. Morris stated,
“Whatever [Dennis] wanted me to haul, I'd haul
it.” Morris Dep. 89:8. Morris only answered to Dennis
and did not have contact with TDS with respect to the hauling
of TDS freight. Id. 88:13-22; 89:9-90:8. Dennis
believed that at all times Morris was acting within the
course and scope of his employment with DLS. Dennis Dep.
Morris' termination by TDS, DLS reinstated its DOT
operating authority and obtained insurance for a Volvo truck
so that Morris could continue driving. Id. 34:4-9;
120:6-21. Dennis does not recall whether he disclosed
Morris' failed drug test to the insurance company when he
sought to insure the Volvo truck with Morris as the driver.