In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1739

MARINA D. KOLCHINSKY 

and LIDIA L. KOLCHINSKY,

Plaintiffs-Appellants,

v.

WESTERN DAIRY TRANSPORT, LLC,

and WD LOGISTICS, LLC,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 C 10544 — Matthew F. Kennelly, Judge.

____________________

ARGUED DECEMBER 17, 2019 — DECIDED JANUARY 6, 2020 —

OPINION ISSUED FEBRUARY 6, 2020*

____________________

* The court initially resolved this appeal by nonprecedential order. The 

order is being reissued as an opinion. 
2 No. 19-1739

Before RIPPLE, SYKES, and ST. EVE, Circuit Judges.

PER CURIAM. After Marina Kolchinsky and her mother, 

Lidia Kolchinsky, were severely injured in a car collision 

with a tractor-trailer in Illinois, they sued the truck driver 

and the two companies that contracted with him. They filed 

in federal court based on diversity of citizenship; Illinois law 

controlled. The district court entered partial summary 

judgment in favor of Western Dairy Transport, LLC, and 

WD Logistics, LLC, concluding that the driver was an 

independent contractor so the Kolchinskys could not hold 

the companies responsible for the driver’s alleged negligence. Because the district court properly classified the 

driver as an independent contractor, we affirm the summary 

judgment for the companies.

William G. Bentley, a Colorado citizen and the owner 

and sole member of Bill Bentley Trucking, LLC, a Colorado 

company, rear-ended the Kolchinskys’ car while driving a 

tractor-trailer through Illinois.1 Bentley had just dropped off 

a load of milk in Minnesota and was en route to Indiana 

with an empty trailer to pick up another load. Both deliveries had been arranged by WD Logistics, an LLC consisting of 

Missouri and Texas citizens. WD Logistics instructed 

Mr. Bentley to transport the milk from Indiana to its destination; how he got to Indiana was up to him. The Kolchinskys, 

especially Marina, were severely injured in the crash. 

At the time Bentley Trucking regularly provided freighttransportation services to WD Logistics according to the 

terms of a Carrier/Broker Agreement. The nonexclusive 

1 The Kolchinskys’ claims against Bentley and Bentley Trucking are not 

part of this appeal.
No. 19-1739 3

agreement provided that Bentley Trucking was an independent contractor and retained “full control” over its 

personnel and that either party could terminate the agreement upon 30 days’ written notice. When Bentley Trucking 

accepted a job from WD Logistics, it agreed to call the broker 

daily with a status update, protect the freight, notify the 

broker of any damage, and inform the broker of delivery. 

Bentley Trucking was also responsible for determining 

delivery times but agreed to inform WD Logistics if Bentley 

(in his capacity as a driver for Bentley Trucking) could not 

meet the schedule; the broker reserved the right to withhold 

any resulting damages from Bentley Trucking’s pay. Finally, 

the agreement required Bentley Trucking to pay its employees and provide and maintain its own tractor, fuel, insurance, licenses, and permits.

The Kolchinskys, Wisconsin citizens, sued Bentley in federal court alleging that he negligently collided with their car 

and asserting more than $75,000 in damages. Citing theories 

of respondeat superior and vicarious liability, the 

Kolchinskys also sued Bentley Trucking, WD Logistics, and 

Western Dairy Transport, an LLC with the same members as 

WD Logistics. 

WD Logistics moved for summary judgment, arguing 

that because Bentley Trucking was not its agent, the broker 

could not be held liable for Bentley’s negligent driving. In 

support the company offered evidence showing that 

WD Logistics did not control how Bentley Trucking performed its work for WD Logistics. It pointed to the agreement, which classified Bentley Trucking as an independent 

contractor, and to testimony that the parties conducted their 

business consistently with the terms of the agreement. 
4 No. 19-1739

Bentley Trucking also negotiated the rate for each job, and 

WD Logistics did not withhold payroll-related taxes or 

insurance. And apart from the few communication requirements set out in the agreement, Bentley Trucking controlled 

the details of the delivery, including providing and maintaining the tractor, and selecting the driver, the route, the 

number of hours to drive per day, and where to refuel.

Western Dairy also moved for summary judgment, arguing that the only possible basis for liability against it was 

through WD Logistics and that it had no business relationship with WD Logistics with respect to the trip at issue. 

Western Dairy and WD Logistics are owned by the same 

parent company, but their roles are distinct: Western Dairy 

owns and leases trucks and trailers and hauls freight, while 

WD Logistics brokers the hauls. In other words, Western 

Dairy was a carrier hired by WD Logistics to transport loads 

for third parties; it also sometimes supplied trailers that 

other carriers used to haul loads brokered by WD Logistics. 

Bentley Trucking was one of those other carriers. And 

Bentley Trucking was the carrier for the load brokered by 

WD Logistics at the time of the collision.

In their opposition to the motion for summary judgment, 

the Kolchinskys pointed to several aspects of Bentley Trucking’s relationship with WD Logistics that, they argued, 

supported finding an agency relationship. First, the 

Carrier/Broker Agreement instructed that when Bentley 

Trucking was carrying a load, the driver had to call 

WD Logistics with a daily status update and upon delivery, 

and also report any damage to the load. WD Logistics paid 

Bentley Trucking directly and could withhold damages 

resulting from a late delivery or lost load. Finally, 
No. 19-1739 5

WD Logistics provided Bentley Trucking with trailers to 

haul the loads and had the power to fire Bentley Trucking, 

and at the time of the accident, Bentley Trucking was hauling exclusively for WD Logistics.

The judge granted the summary-judgment motions, concluding as a matter of Illinois law that Bentley Trucking was 

an independent contractor.2 And because any possible path 

to liability for Western Dairy ran through WD Logistics, the 

details of Western Dairy’s relationship to the broker were 

ultimately irrelevant. 

The judge entered a final judgment for WD Logistics and 

Western Dairy under Rule 54(b) of the Federal Rules of Civil 

Procedure, which permitted the Kolchinskys to immediately 

appeal even though their claims against Bentley and Bentley 

Trucking remain pending. In response to an order from this 

court, the judge explained that he had entered final judgment because allowing immediate review of the summaryjudgment order would be more expedient than trying the 

case against Bentley and Bentley Trucking alone and then 

holding a second trial if the appeal was successful. 

2 A federal court exercising diversity jurisdiction must apply the choiceof-law rules used by the state in which the court sits. NewSpin Sports, LLC 

v. Arrow Elecs., Inc., 910 F.3d 293, 300 (7th Cir. 2018). When there is no 

dispute over which state’s law applies, the court will apply the substantive law of the state in which the federal court sits. Med. Protective Co. of 

Fort Wayne v. Am. Int'l Specialty Lines Ins. Co., 911 F.3d 438, 445 (7th Cir. 

2018). Here, the parties agree that Illinois law applies, and their choice is 

consistent with Illinois’s presumption in personal-injury cases to apply 

the law of the state in which the injury occurred. Townsend v. Sears, 

Roebuck & Co., 879 N.E.2d 893, 903 (Ill. 2007).
6 No. 19-1739

On appeal the Kolchinskys first argue that a reasonable 

jury could conclude based on the summary-judgment evidence that WD Logistics and Western Dairy exercised 

enough control over Bentley Trucking to create an agency 

relationship. We review a summary judgment de novo, 

drawing reasonable inferences in favor of the Kolchinskys,

the nonmoving parties. Walker v. Ingersoll Cutting Tool Co., 

915 F.3d 1154, 1157 (7th Cir. 2019).

Under Illinois law, deciding whether an agency relationship exists requires a multifactor analysis. The “cardinal 

consideration” for determing the existence of an agency 

relationship is whether the alleged principal has the “right to 

control the manner of work performance.” Sperl v. C.H. 

Robinson Worldwide, Inc., 946 N.E.2d 463, 471 (Ill. App. Ct. 

2011). Other considerations include whether the nature of 

the work is in the principal’s field, whether the principal has 

the right to discharge the purported agent, the method of 

payment and whether taxes are deducted, the provision of 

equipment, and the level of skill required. Id. Though no 

single factor controls, id., and weighing them is typically a 

question of fact, a court may decide the question if the 

underlying facts are not disputed, Dowe v. Birmingham Steel 

Corp., 963 N.E.2d 344, 351 (Ill. App. Ct. 2011).

We agree with the district judge that the evidence shows 

as a matter of law that Bentley Trucking was not an agent of 

WD Logistics. The Kolchinskys’ strongest facts in support of 

an agency relationship are that WD Logistics required 

Bentley to contact it at various times when carrying its loads, 

including a daily status call and a call upon delivery, and 

that WD Logistics could charge Bentley Trucking for damages if a delivery was late or damaged. But none of these 
No. 19-1739 7

facts shows the degree of control that Illinois courts have 

required when finding that an agency relationship exists. 

See, e.g., Sperl, 946 N.E. 2d at 471–72 (upholding a finding of 

agency relationship where the broker specified the trailer 

length, required the driver to take the trailer temperature 

regularly, and imposed strict communication requirements 

and delivery times enforced by fines); see also Powell v. Dean 

Foods Co., 7 N.E.3d 675, 698 (Ill. App. Ct. 2013) (upholding a

finding of agency relationship where the trial evidence 

showed that the shipping company controlled the drivers’ 

actions, required drivers to wear uniforms, and provided 

trailers; and the evidence also showed that the driver pulled 

exclusively for the company for 60 years and used its letterhead).

Meanwhile, courts applying Illinois law consistently 

have declined to find an agency relationship when a company hires an independent driver to deliver a load to designated persons at designated hours but does not reserve the 

right to control the manner of delivery. See Powell, 7 N.E.3d 

at 697–98 (citing Shoemaker v. Elmhurst-Chi. Stone Co., 

652 N.E.2d 1037 (Ill. App. Ct. 1994), as modified (July 12, 

1995)); Manahan v. Daily News-Tribune, 365 N.E.2d 1045, 

1046–47, 1050–51 (Ill. App. Ct. 1977). Even if a broker requires an exclusive relationship, has the power to fire, and 

sets rules governing the manner of loading the trucks, no 

agency relationship exists if the broker does not have the 

power to control the details of the manner of delivery. See

Dowe, 963 N.E.2d at 351 (finding no agency relationship 

where a trucking company chose the route, set hours, and

provided and maintained equipment and insurance). Here, 

it is undisputed that WD Logistics and Bentley Trucking

adhered to the terms of their agreement, which explicitly 
8 No. 19-1739

states that Bentley Trucking had “full control” over its 

personnel, was solely responsible for its own operational 

costs and its equipment, and would perform services as an 

“independent contractor.” See Manahan, 365 N.E.2d at 1051

(“If the parties to the relation are bound by a contract which 

by its terms clearly defines that relationship as that of employer/independent contractor, and the parties abide by that 

contract, then the contract may be conclusive of their relationship.”).

The Kolchinskys’ remaining points do not support finding an agency relationship. The fact that Bentley Trucking 

was hauling exclusively for WD Logistics is irrelevant 

because the broker did not require it. See Sperl, 946 N.E.2d at

471 (focusing on the employer’s right to control behavior); 

see also Trzaska v. Bigane, 60 N.E.2d 264, 265–67 (Ill. App. Ct. 

1945) (finding no agency relationship where the driver is 

free to refuse a load). Likewise, the fact that WD Logistics 

provided Bentley Trucking with trailers also cannot support 

a finding of an agency relationship. See Petersen v. U.S. 

Reduction Co., 641 N.E.2d 845, 851 (Ill. App. Ct. 1994) (finding 

no agency relationship despite providing a trailer). And the 

Kolchinskys’ arguments that WD Logistics (as opposed to 

the owners of the freight) paid Bentley Trucking directly and 

had the power to fire the company are somewhat distracting: 

WD Logistics did not deduct income taxes or social security 

contributions like it would for an employee, and the 

Carrier/Broker Agreement provided that either party could 

terminate the relationship. Bentley Trucking, moreover, was 

solely responsible for paying all payroll-related expenses for 

its drivers, including workers’ compensation, unemployment, and social security. 
No. 19-1739 9

The Kolchinskys next argue that Bentley and Bentley 

Trucking had apparent authority to act for WD Logistics. To 

support this theory, the Kolchinskys point to various bills of 

lading from Bentley Trucking’s trips—including the trip it 

completed before the collision—on which Mr. Bentley 

signed boilerplate forms on behalf of WD Logistics or 

Western Dairy, some designating him as a pickup “agent.” 

The Kolchinskys also note that the trailer bore Western 

Dairy’s logo and was en route to pick up a load for 

WD Logistics when the collision happened. The forms, 

however, more often designated Bentley as “driver.” And 

when Bentley was en route from Minnesota to Indiana, he 

was not yet working on a job under the Carrier/Broker 

Agreement. He had accepted a new job for WD Logistics, 

but it did not begin until he picked up the new load in 

Indiana, which never happened because of the intervening 

accident. So regarding the trip in question, Bentley was not 

acting on the broker’s behalf. 

And it is difficult to imagine how an apparent-agency 

theory could fit the facts of this case. The Kolchinskys do not 

argue that Mr. Bentley ever appeared to them as Western 

Dairy’s agent. But even if the bills of lading and Western 

Dairy’s logo could create apparent agency, to survive summary judgment the Kolchinskys needed evidence that could 

create an inference that their injuries would not have occurred “but for [their] justifiable reliance on the apparent 

agency.” O'Banner v. McDonald's Corp., 670 N.E.2d 632, 634–

35 (Ill. 1996). They offered no such facts, and this failure 

alone is reason enough to reject this theory. See id. The 

undisputed record, moreover, contradicts any such inference: The Kolchinskys stopped their car on the side of the 
10 No. 19-1739

road before they could have seen the truck bearing Western 

Dairy’s logo, and the truck struck their car from behind. 

Finally, the Kolchinskys argue that the judge erred in failing to address their argument that Western Dairy could be 

held liable for the accident based on a joint venture relationship with WD Logistics. But the judge did address it—he 

simply concluded that this argument was irrelevant given 

his conclusion that any theory of liability against Western 

Dairy required finding WD Logistics liable (either individually or as part of a joint venture). We agree with this analysis. The evidence shows that Western Dairy had no part in 

the transaction leading to Mr. Bentley’s fateful trip. And 

even if there were a joint venture between WD Logistics and 

Western Dairy, Bentley Trucking was not its agent for the 

same reason it was not the agent of WD Logistics alone. 

AFFIRMED