- 977 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

Stephanie A. Sparks, Personal Representative of

the Estate of Gary W. Isom, deceased, et al., 

appellants and cross-appellees, v. 

M&D Trucking, L.L.C., appellee

and cross-appellant.

___ N.W.2d ___

Filed December 28, 2018. No. S-17-1209.

1. 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 of law.

2. ____: ____. 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 evidence.

3. 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 below.

4. 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.

5. 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.

6. 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/01/2019 01:06 AM CST
- 978 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

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 parties.

8. ____: ____. 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.

9. ____: ____. 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.

11. 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.

12. 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 terms.

13. 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 servants.

14. ____: ____: ____. A party contracting with an independent contractor 

can be liable for physical harm caused to another if (1) the contracting 
- 979 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

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.

15. 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 negligently 

performed.

16. 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.

17. ____: ____. To fall within the control exception to the general rule 

of nonliability, control must directly relate to the work that caused 

the injury.

18. ____: ____. The key element of control must exist with respect to the 

very thing from which the injury arose.

19. ____: ____. 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.

20. 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.

21. 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.

22. 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 benefit.

23. 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.

24. Motor Carriers: Brokers. A transportation company may have authority to act as a shipper, broker, or carrier, and a court must focus on the 
- 980 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

specific transaction at issue—not on whether the transportation company 

acts as a motor carrier in other transactions.

25. 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 independent contractor.

26. 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.

Appeal from the District Court for Douglas County: Timothy

P. Burns, Judge. Affirmed.

Patrick R. Turner, Steven G. Emerson, Thomas H. Davis, 

and Bradley J. Yeretsky, of Stinson, Leonard & Street, L.L.P., 

for appellants.

Thomas A. Grennan and Adam J. Wachal, of Gross & 

Welch, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg JJ.

Funke, J.

Stephanie 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.

I. BACKGROUND

1. Facts

Around 5 a.m. on August 28, 2014, Kenneth Bryan Johnson 

was driving a truck and trailer and failed to stop at a stop sign, 
- 981 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

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.

Johnson 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.

Turbo 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 M&D.
- 982 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

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.

M&D 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 
- 983 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

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.

Brackett, 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.

Specifically, 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 
- 984 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

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 

outside drivers.

Plambeck 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 pickup.

On 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 occurred:

• 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.
- 985 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

• 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 M&D.

• 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, OK.”

• At 12:09 a.m. on August 28, 2014, Johnson received a telephone call from M&D lasting approximately 1 minute 41 

seconds.

• 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 available en route to Blackwell.

The accident between the Isom family and Johnson occurred 

around 5 a.m. on August 28, 2014. A police report from the 

accident listed Turbo Turtle as the motor carrier.

2. Appellants’ Claims

Appellants brought the instant action against Turbo Turtle, 

Johnson, and M&D. Pursuant to a stipulation and joint motion, 

the court dismissed the claims against Turbo Turtle and Johnson. 

On the claims against M&D, the stipulation and motion to dismiss provided: “This Dismissal does not involve any other 

defendant or potential tortfeasor. The Plaintiffs reserve all 

claims against M&D . . . and the claims against it remain pending and are not dismissed.” The order dismissing the claims 

against Turbo Turtle and Johnson confirmed: “This Dismissal 

does not extend to M&D . . . . The Plaintiffs’ claims against 

M&D [remain] pending . . . .”

As to M&D, appellants alleged that (1) Johnson was an agent 

of M&D, and M&D was liable for his negligence through the 

doctrine of respondeat superior; (2) M&D was negligent in hiring, training, or supervising Johnson given Johnson’s unfitness 
- 986 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

to operate motor vehicles on public roads and a criminal history 

regarding the operation of motor vehicles; and (3) M&D was 

negligent per se in that M&D was the operator and/or statutory 

lessee of the truck and trailer driven by Johnson under the federal Motor Carrier Safety Improvement Act of 1999 (FMCSA) 

and Federal Motor Carrier Safety Regulations (FMCSR) and, 

thus, liable for Johnson’s and its own negligence.

3. Summary Judgment

M&D filed a motion for summary judgment claiming there 

was no genuine issue of material fact and that M&D was 

entitled to summary judgment as a matter of law. In support 

of the motion, M&D asserted Johnson was not an employee 

of M&D, Johnson was an independent contractor of Turbo 

Turtle who was in turn an independent contractor of M&D, 

and M&D did not have sufficient control over Johnson to be 

vicariously liable.

Following a hearing on the motion, the district court granted 

M&D summary judgment as to all three claims. On the claim 

of respondeat superior, the court first determined appellants’ 

claim is not barred by the prior settlement with Turbo Turtle and 

Johnson through operation of Neb. Rev. Stat. § 25-21,185.11(1) 

(Reissue 2016) (“[a] release, covenant not to sue, or similar 

agreement entered into by a claimant and a person liable shall 

discharge that person from all liability to the claimant but shall 

not discharge any other persons liable upon the same claim 

unless it so provides”). The court then determined that Johnson 

was not an employee of M&D and that M&D did not exert 

sufficient control over Johnson to establish appellants’ claim of 

respondeat superior. On the claim of negligent hiring, training, 

or supervising, the court determined M&D complied with its 

reasonable duty of care as a broker in that the record did not 

support a finding that M&D knew or should have known Turbo 

Turtle had an inadequate safety record or that Turbo Turtle 

hired an unsafe driver in Johnson. Finally, the court noted 

that negligence per se is not recognized as a separate cause of 

action in Nebraska for a violation of FMCSA and FMCSR.
- 987 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

II. ASSIGNMENTS OF ERROR

Appellants assign, restated, that the district court erred in 

granting summary judgment, because there was a genuine issue 

of material fact of (1) whether M&D was Johnson’s commonlaw or statutory employer and (2) whether M&D negligently 

hired, trained, or supervised Johnson.

On cross-appeal, M&D assigns, restated, that the district 

court erred in finding that appellants’ decision to settle with 

Turbo Turtle and Johnson does not operate as a release of 

M&D in the event that Turbo Turtle or Johnson are deemed 

agents of M&D.

III. STANDARD OF REVIEW

[1-3] 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 of law.1 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 evidence.2 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 below.3

IV. ANALYSIS

1. Employee Versus Independent

Contractor

Appellants first assign the district court erred in its determination that Johnson was an independent contractor and 

not M&D’s employee. Appellants claim there is substantial 

1 Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).

2 Id.

3 Id.
- 988 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

evidence that M&D controlled Johnson’s work, as well as 

other relevant factors to create a question of fact as to whether 

M&D was Johnson’s common-law employer.

[4-6] 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.4 Ordinarily, a party’s status as an 

employee or an independent contractor is a question of fact.5

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.6 By stating “where 

the inference is clear,” this 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.7

In this matter, the material facts are not in dispute. Rather, 

the parties argue about the inferences to be drawn from those 

facts concerning the legal relationships of the parties. We 

determine these inferences are clear and can be determined as 

a matter of law.

[7,8] A determination of whether Johnson was M&D’s 

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 parties.8 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 

4 Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997).

5 Id.

6 Id.

7 Id.

8 See id.
- 989 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

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.9

(a) Extent of Control

[9-12] The extent of control is the chief factor distinguishing 

an employment relationship from that of an independent contractor.10 In examining the extent of the potential employer’s 

control over the worker in this context, 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.11 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.12 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 terms.13

Appellants contend several facts support a finding that M&D 

exerted sufficient control over Johnson for a determination that 

9 See Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

10 See Kime, supra note 4.

11 Id.

12 Id.

13 See id.
- 990 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

the relationship went beyond that of an independent contractor to an employer-employee. Specifically, appellants point to 

the text messages and cell phone calls between M&D, Turbo 

Turtle, and Johnson representatives on August 27 and 28, 2014; 

the contract between M&D and Turbo Turtle which provided 

M&D would be the exclusive dispatch servicer for Turbo 

Turtle; and the agreement between Turbo Turtle and Johnson 

that Johnson could not drive the leased equipment for loads 

outside those for M&D and Turbo Turtle.

However, these factual allegations do not lead to a determination that M&D and Johnson’s relationship went beyond 

that of an independent contractor. The text messages cited 

by appellants show that M&D canceled a load due to rain at 

9:01 a.m. on August 27, 2014; that M&D provided Johnson 

load information for a different load to North Dakota 30 minutes later; and that Turbo Turtle provided load information to 

Johnson about the Northern Ag load at 11:43 p.m. By providing only the pickup and destination locations, these messages 

go to the result of the work and not the means or methods 

used.14 Additionally, the fact that M&D text messaged Johnson 

the North Dakota load information directly rather than Turbo 

Turtle is not at odds with an independent contractor relationship. M&D and Turbo Turtle had a history of M&D’s making direct communications with Turbo Turtle’s drivers; Turbo 

Turtle was informed of the North Dakota load by Johnson; 

and M&D communicated with Turbo Turtle directly about the 

Northern Ag load, which Turbo Turtle then communicated to 

Johnson. Through the text messages, the record demonstrates 

only that M&D was controlling Johnson as to the end product 

of the work to be performed and did so pursuant to its agreement with Turbo Turtle.

The cell phone calls also do not provide sufficient support 

that M&D controlled Johnson’s actions as to the means and 

methods to be used. Appellants argue the timing of these calls 

14 See id.
- 991 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

implies M&D was directing Johnson on the routes to take or 

the means in which to haul the load, because they occurred 

after he had the load information, but there is no evidence 

in the record as to the subject or content of the cell phone 

calls. Instead, the only information available about the content of the calls is from M&D representatives who testified 

that, while they do not remember the content of these specific 

calls, they contacted Johnson only concerning load information. Additionally, it is not a clear inference from the timing 

of these calls that they were instructing Johnson on the routes 

to take or the means to haul the load. These cell phone calls 

occurred relatively soon after Turbo Turtle text messaged 

Johnson the Northern Ag load information which could imply 

the conversations were merely communications expanding on 

the load information. The conversations could also have been 

concerning the status of other loads or a variety of other topics. 

Without further evidence on the subject of the calls, there is 

no clear implication that, as appellants suggest, the calls were 

M&D’s instructing Johnson on the means or methods in which 

to drive the load.

As to the contract between M&D and Turbo Turtle and 

the agreement between Turbo Turtle and Johnson, appellants 

argue these agreements lead to the conclusion that Johnson 

was permitted to drive only M&D’s loads, which was evidence 

that M&D exercised control over Johnson under an employeremployee relationship. However, the record does not lead to 

such conclusion. Johnson never contracted with M&D; instead, 

Turbo Turtle contracted with M&D and Turbo Turtle contracted with Johnson. According to the contract between M&D 

and Turbo Turtle, M&D was to provide exclusive dispatch 

services to Turbo Turtle with an exception for periods in which 

Turbo Turtle was carrying loads related to harvesttime. While 

the contract required at least one of Turbo Turtle’s drivers be 

available for dispatch by M&D, the contract stated that it did 

not “require the dedication by [Turbo Turtle] of a particular [independent contractor] to dispatch by M&D.” Johnson’s 
- 992 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

agreement with Turbo Turtle, in turn, provided that Johnson 

could not drive Turbo Turtle’s equipment for any load other 

than those issued by Turbo Turtle or M&D but did not prevent 

Johnson from using other equipment to carry outside loads. 

There is also nothing in the record that the agreement prohibited Johnson from carrying loads for Turbo Turtle that were 

unrelated to M&D, and Turbo Turtle was permitted under the 

M&D contract to assign non-M&D loads during harvesttime. 

Therefore, appellants’ contention that Johnson could carry only 

M&D loads is refuted by the record.

In consideration of all of the above and in review of the 

record, there is insufficient evidence to create a genuine issue 

of material fact that M&D exerted the extent of control necessary over Johnson for a determination that the relationship went beyond that of an independent contractor to an 

employer-employee.

(b) Other Factors

Appellants contend additional factors weigh toward a determination that Johnson and M&D had an employer-employee 

relationship: whether the one potentially employed is engaged 

in a distinct occupation or business, the length of time for 

which the one potentially employed is engaged, whether the 

work is part of the regular business of the potential employer, 

and whether the potential employer is or is not in business.15

To support this contention, appellants note M&D, Turbo Turtle, 

and Johnson were engaged in the same business of transporting goods; M&D was hired to transport the load in question by 

Northern Ag, which believed M&D would be the sole carrier 

of the loads; and M&D’s own drivers were transporting other 

loads in the same order for Northern Ag. Appellants claim these 

factors, when added to the cell phone calls and text messages 

between M&D and Johnson and the exclusive language of the 

Turbo Turtle agreements with M&D and Johnson, create an 

issue of fact as to whether Johnson was an employee of M&D.

15 See Mays, supra note 9.
- 993 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

However, along with the analysis in the previous section, 

these additional factors do not determine Johnson was M&D’s 

employee. The fact that M&D had a trucking division as well 

as a brokerage division is not determinative of an employeremployee relationship. Johnson was in a distinct business from 

M&D in that M&D operated a brokerage division within its 

company utilizing outside drivers; Johnson was not exclusively 

bound to M&D’s shipments and could take other work from 

Turbo Turtle, including during harvesttime; and Johnson did 

not use M&D’s equipment and leased the equipment from 

Turbo Turtle instead. Johnson contracted with Turbo Turtle and 

not M&D and had driven for Turbo Turtle for only approximately 30 days prior to the accident, a relatively short amount 

of time. Additionally, while M&D did drive some of the 

Northern Ag loads utilizing its own drivers, it was also common for M&D to dispatch outside companies and drivers for 

the Northern Ag loads.

Considering all of the above, the record is insufficient 

to create a genuine issue of material fact that the relationship went beyond that of an independent contractor to an 

employer-employee.

2. Liability as Independent

Contractor

Appellants next argue M&D would be liable for Johnson’s 

negligence, even if Johnson were an independent contractor.

[13-15] 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 servants.16 Our 

case law has recognized four exceptions to the general rule.17

Specifically, a party contracting with an independent contractor can be liable for physical harm caused to another if (1) the 

contracting party retains control over the contractor’s work, (2) 

the contracting party is in possession and control of premises, 

16 Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).

17 Id.
- 994 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

(3) a statute or rule imposes a specific duty on the contracting 

party, or (4) the contractor’s work involves special risks or dangers.18 We often refer to the latter three exceptions as involving 

nondelegable duties.19 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 negligently performed.20

(a) Retention of Control

While M&D did not retain sufficient control over Johnson’s 

work to subject M&D to liability for Johnson’s negligence as 

an agent or employee, appellants allege that M&D retained 

some control over the relevant work and that M&D is therefore 

liable for a failure to exercise reasonable care in the use of 

that control.21

[16-19] To fall within this exception to the general rule of 

nonliability, the contracting party’s involvement in overseeing 

the work must be substantial.22 Furthermore, that control must 

directly relate to the work that caused the injury.23 In other 

words, the key element of control must exist with respect to 

the very thing from which the injury arose.24 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.25

Appellants argue M&D acted in a supervisory role when 

it assigned Johnson the load from Northern Ag, had actual 

18 See id.

19 See id.

20 See id.

21 See Restatement (Second) of Torts § 414 (1965).

22 See Gaytan, supra note 16.

23 See id.

24 See Cutlip v. Lucky Stores, 22 Md. App. 673, 325 A.2d 432 (1974).

25 See Gaytan, supra note 16.
- 995 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

and/or constructive knowledge that Johnson was unavailable 

for driving under the hours-of-service requirements of FMCSA 

and FMCSR,26 and had the opportunity to use a different driver 

who was not in violation of those requirements but failed to 

do so. Specifically, appellants point to the communication 

between M&D and Johnson on August 27, 2014, where M&D 

text messaged to cancel a load Johnson was carrying at 9:01 

a.m., text messaged to dispatch him on a load from Nebraska 

to North Dakota 30 minutes later, and communicated with 

Turbo Turtle to dispatch Johnson on the load carried during 

the accident at 11:43 p.m.

[20] The record does not support appellants’ contention that 

M&D had sufficient supervision of Johnson’s work. Having 

the right to control and supervise the work in this context 

implies having the ability to oversee and direct the manner 

in which the work that caused the injury is carried out.27 As 

we have already concluded, M&D did not have control of 

the method or means in which Johnson performed his work. 

Furthermore, concerning the Northern Ag load specifically, 

the text messages indicate that Johnson was provided, at that 

time, with only the pickup, destination, and content details of 

the load. The messages did not direct Johnson on the timing 

of the load, the route, and what stops to make. Without more, 

nothing in the record indicates that Johnson was required to 

drive beyond the hours-of-service restriction and that M&D 

had control and supervision of Johnson to direct him to make 

such a violation.

(b) Control of Premises

Appellants argue M&D is liable as the party in possession and control of premises where physical harm is caused. 

26 See 49 C.F.R. § 395.3(2) (2017).

27 Kime, supra note 4. See, also, Harris v. Velichkov, 860 F. Supp. 2d 970 (D. 

Neb. 2012), affirmed sub nom. Harris v. FedEx Nat. LTL, Inc., 760 F.3d 

780 (8th Cir. 2014); Gaytan, supra note 16.
- 996 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

Appellants allege M&D had a lease agreement with Turbo 

Turtle and, as a result, was in control of Johnson and the truck 

and trailer.

Under 49 C.F.R. § 376.2(e) (2016), a “lease” is defined 

as “[A] contract or arrangement in which the owner grants 

the use of equipment, with or without [a] driver, for a specified period to an authorized carrier for use in the regulated 

transportation of property, in exchange for compensation.” In 

addition, 49 C.F.R. §§ 376.12 and 376.22 (2017) require that 

a lease contain the following provisions: provide the lessee 

exclusive possession, control, and use of the equipment for 

the duration of the lease and the lessee shall assume complete responsibility for the operation of the equipment for 

the duration of the lease; clearly specify the legal obligation 

of the lessee to maintain insurance coverage for the protection of the public; and provide that control and responsibility 

for the operation of the equipment shall be that of the lessee 

from the time possession is taken until possession is returned. 

Further, 49 C.F.R. §§ 376.11 and 376.22 (2017) provide specific requirements for the operation of a lease, including that 

receipts are to be provided from the lessee to the lessor when 

possession is taken, the equipment must be identified as being 

operated by the lessee, and the equipment must carry a copy 

of the lease.

This contract was not a lease agreement whereby M&D 

was leasing Turbo Turtle’s drivers, trucks, and trailers when 

it communicated a job. Here, Turbo Turtle and Johnson maintained control over the use of the truck and trailer. Turbo 

Turtle was responsible for the equipment’s upkeep, insurance, and signage, as well as the hiring of the drivers, and 

Johnson and Turbo Turtle were free to coordinate the means 

and manner in which they accomplished the loads M&D provided to them. Moreover, there was no evidence in the record 

that either Turbo Turtle or Johnson received receipts when 

M&D allegedly took possession of the equipment, that the 

equipment displayed any identifying information that it was 
- 997 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

being operated by M&D, or that Johnson carried a copy of 

the contract.

Appellants cite to Plambeck’s deposition for the proposition 

that the contract was a lease. During that deposition, Plambeck 

made two comments regarding a lease agreement and indicated 

that prior to the contract, M&D had two other agreements 

with Turbo Turtle. The first contract he described as a “lease 

agreement that M&D . . . used as a standard lease agreement 

for any companies that [M&D] brokered loads to.” The second 

contract he described as a “trailer lease” which allowed Turbo 

Turtle to pull one of M&D’s trailers.

The record before us is void of the first contract of which 

Plambeck testified. As a result, we cannot determine the terms 

or conditions of that agreement and whether it would qualify 

as a lease under FMCSA and FMCSR. Upon a question as to 

whether the trailer lease was still in effect in 2014, Plambeck 

stated that “I would call [the contract] a lease agreement too, 

so which one do you mean?” Plambeck then testified that 

Turbo Turtle’s right to lease a trailer from M&D continued on 

an as-needed basis. The contract itself authorized Turbo Turtle 

to lease one of M&D’s trailers. However, later in his deposition, Plambeck testified that none of the equipment involved in 

the accident was being leased from M&D. Noting the failure 

of the contract to comply with FMCSA and FMCSR requirements for a lease, Plambeck’s statement, without more, does 

not imply that M&D treated the contract as a lease agreement 

for Turbo Turtle’s drivers and equipment, nor does it make the 

contract such a lease agreement.

(c) Statute or Rule

(i) Statutory Employer-Employee 

Under FMCSA and FMCSR

Appellants argue FMCSA and FMCSR impose liability on 

M&D, because Johnson was a driver being controlled exclusively by M&D at the time of the accident and, as such, 

Johnson was M&D’s statutory employee.
- 998 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

In support of their argument, appellants cite to several 

definitions within the FMCSR. Specifically, 49 C.F.R. 

§ 376.2(d)(2) which defines “owner” as someone “who, without title, has the right to exclusive use of equipment,” and 

49 C.F.R. § 390.5 (2017) which defines an “employer” as 

someone “who owns or leases a commercial motor vehicle in 

connection with [a business affecting interstate commerce]” 

and “employee” as someone “employed by an employer” and 

can include “an independent contractor while in the course 

of operating a commercial motor vehicle.” Appellants claim 

M&D had the right to exclusive use of Johnson and his equipment, M&D had this right to exclusive use in connection with 

its interstate trucking business, and, thus, Johnson was an 

M&D employee under FMCSR, even if considered an independent contractor.

However, appellants are incorrect in their claim that M&D 

was the owner of the equipment. As analyzed above, Johnson 

and his equipment were not exclusively controlled by M&D 

at the time of the accident, Johnson’s equipment was owned 

by Turbo Turtle who was responsible for its maintenance 

and insurance, and the contract between M&D and Turbo 

Turtle was not a lease agreement for that equipment. Because 

M&D was not the owner of Johnson’s equipment and did not 

lease Johnson’s equipment, M&D does not meet the definition of employer and Johnson does not meet the definition of 

employee under FMCSA and FMCSR.

(ii) Motor Carrier Under 

FMCSA and FMCSR

Appellants argue that FMCSA and FMCSR impose liability 

on M&D, because M&D was the motor carrier of the Northern 

Ag load. M&D, in turn, argues it was acting as a broker of 

the load in question and, thus, did not have liability under 

FMCSA and FMCSR.

[21,22] FMCSA and FMCSR generally require that a commercial motor carrier operate only if registered and that such 
- 999 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

registration requires proof of financial responsibility in order 

to ensure collectability of a judgment against the motor carrier.28 This act and these 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 benefit.29

[23] The FMCSR, at 49 C.F.R. § 390.5, codified as Neb. 

Rev. Stat. § 75-362(31) (Cum. Supp. 2014), defines “motor 

carrier” as

a for-hire motor carrier or a private motor carrier. The 

term includes a motor carrier’s agents, officers and representatives as well as employees responsible for hiring, 

supervising, training, assigning, or dispatching of drivers 

and employees concerned with the installation, inspection, and maintenance of motor vehicle equipment and/

or accessories. . . . [T]his definition includes the terms 

employer and exempt motor carrier.

For purposes of federal interstate transportation law, a “broker” means:

a person, other than a motor carrier or an employee or 

agent of a motor carrier, that as a principal or agent 

sells, offers for sale, negotiates for, or holds itself out by 

solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier 

for compensation.30

The FMCSR, at 49 C.F.R. § 371.2(a) (2017), distinguishes 

motor carriers from brokers by stating:

Motor carriers, or persons who are employees or bona 

fide agents of carriers, are not brokers within the meaning 

28 See, 49 U.S.C. §§ 13901 and 13906 (2012 & Supp. V 2017); Harris, supra

note 27.

29 See, e.g., 49 U.S.C. § 14102(a)(4) (2012); Crocker v. Morales-Santana, 

854 N.W.2d 663 (N.D. 2014); Tamez v. Southwestern Motor Transport, 

Inc., 155 S.W.3d 564 (Tex. App. 2004).

30 49 U.S.C. § 13102(2) (2012). See, also, 13 C.J.S. Carriers § 87 (2017).
- 1000 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

of this section when they arrange or offer to arrange the 

transportation of shipments which they are authorized to 

transport and which they have accepted and legally bound 

themselves to transport.

As such, when distinguishing between a motor carrier and 

a broker, the determinative question is whether the disputed 

party accepted legal responsibility to transport the shipment.31

In arguing M&D was acting as a motor carrier on Johnson’s 

Northern Ag load, appellants allege M&D was a licensed 

motor carrier, M&D was Northern Ag’s exclusive point of 

contact, Northern Ag identified M&D as the motor carrier on 

internal documents, M&D solicited the loads from Northern 

Ag for its own account, M&D directly dispatched Johnson, and 

M&D had control over Johnson and his truck and trailer.

[24] Whether M&D was also a licensed motor carrier is 

indeterminative to the question whether M&D was the motor 

carrier for purposes of liability for Johnson’s negligence. 

Instead, this question requires inquiry into M&D’s actions with 

regard to the particular load at issue.32 A transportation company may have authority to act as a shipper, broker, or carrier, 

and a court must focus on the specific transaction at issue—not 

on whether the transportation company acts as a motor carrier in other transactions.33 At the time of the accident, M&D 

had both a trucking and a brokerage division to its company 

with separate licenses and insurance plans, while Turbo Turtle 

was a licensed motor carrier with its own license and insurance. M&D gave the load in question to Turbo Turtle and its 

31 See Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292 (11th 

Cir. 2018).

32 See, e.g., Mass v. Braswell Motor Freight Lines, Inc., 577 F.2d 665 (9th 

Cir. 1978); Hewlett-Packard v. Brother’s Trucking Enterprises, 373 F. 

Supp. 2d 1349 (S.D. Fla. 2005); Nipponkoa Ins. Co., Ltd. v. C.H. Robinson 

Worldwide, Inc., No. 09 Civ. 2365(PGG), 2011 WL 671747 (S.D.N.Y. Feb. 

18, 2011) (unpublished memorandum and order).

33 Harris, supra note 27.
- 1001 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

driver. There is no evidence M&D instructed Johnson beyond 

providing pickup and destination information. Johnson drove 

Turbo Turtle’s truck and trailer, and Turbo Turtle’s signage 

and motor carrier number were displayed on the equipment. 

After the accident, the police report listed Turbo Turtle as the 

motor carrier.

The fact that M&D held itself as Northern Ag’s exclusive 

source of contact is insufficient to convert M&D into a motor 

carrier under FMCSA and FMCSR.34 There is no requirement 

under FMCSA and FMCSR that a broker cannot be the exclusive source of contact for a transportation customer. The record 

further demonstrates this is a normal practice of the trucking 

industry. For example, Northern Ag was a freight brokerage 

company that arranged loads for transport with customers to 

whom M&D and other of Northern Ag’s brokers and carriers 

had no direct contact.

Appellants contend that M&D solicited the loads from 

Northern Ag for its own account and that, as a result, M&D 

was a motor carrier for the load at issue. In support of their 

contention, appellants rely on Schramm v. Foster35 for the 

holding that an entity may be treated as a motor carrier, as 

opposed to a broker, if it engages in solicitation for its own 

account. However, there was no evidence that M&D was 

contractually obligated to transport the Northern Ag loads 

exclusively and there was no evidence that M&D conveyed 

to Northern Ag that it would be transporting the load itself. 

In fact, a Northern Ag manager testified that on behalf of 

Northern Ag, he solicited brokers as well as carriers to fill 

shipping orders. In addition, Plambeck testified that Northern 

Ag was aware that M&D was a brokerage company and that 

M&D was using M&D drivers and also using brokered carriers for Northern Ag loads. Plambeck also testified that M&D 

34 See Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004).

35 Id.
- 1002 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

never told Northern Ag that it would haul all of the offered 

loads through M&D’s trucking division. As a result, there is no 

evidence that M&D solicited the Northern Ag loads as a motor 

carrier for its own account.

M&D did not directly dispatch Johnson on the load in question. Instead, Northern Ag contacted M&D with the load information, M&D communicated that information to Turbo Turtle, 

and Turbo Turtle communicated that information to Johnson. 

Johnson’s cell phone records indicate Turbo Turtle was the 

one who contacted Johnson about the Northern Ag load, while 

M&D had directly dispatched Johnson on a previous North 

Dakota load. Johnson communicated with Turbo Turtle about 

routes and stops but there was no evidence in the record establishing that Johnson communicated with M&D about the means 

and method of the load. However, even if M&D had directly 

dispatched Johnson on the Northern Ag load, such an action 

would not determine M&D was a motor carrier. The text messages in which M&D instructed Johnson on the North Dakota 

load and the text messages in which Turbo Turtle instructed 

Johnson on the Northern Ag load provided only pickup and 

destination information. The provision of such information is 

consistent with the role of a third-party logistics company with 

the responsibility of coordinating shipment of the freight relative to the customer’s needs.36

While relevant to the question of whether M&D legally 

bound themselves to transport the Northern Ag loads, Northern 

Ag listing M&D on the bill of lading and other pickup/dropoff 

records is not dispositive evidence M&D was acting as the 

motor carrier. The identification of a transportation company 

as the “carrier” on the bill of lading does not prove that the 

transportation company was in fact the carrier in this transaction. In Schramm, the court found that a bill of lading prepared by a third party, which identified the defendant as the 

36 See id.
- 1003 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

“carrier” of the load was insufficient to establish the defendant’s carrier status, because the defendant played no role in 

its preparation.37

In the instant matter, the record indicates that typically two 

different documents were generated for each load shipped: 

one by the customer when the load was picked up and one by 

Northern Ag when the load was dropped off. Nothing in the 

record indicates that M&D had any involvement in preparing either document. For the load involved in the accident, 

only the pickup document was generated, because the load 

was not dropped off. The pickup document listed M&D as 

the carrier and was created by the customer. However, as 

discussed above, when the load was picked up, the truck and 

trailer displayed Turbo Turtle’s signage and carrier number. 

M&D’s signage and carrier number were not displayed on 

the truck and trailer, and there is no evidence in the record 

indicating that Johnson was carrying any sort of lease agreement for M&D to use Turbo Turtle’s truck. As such, Turbo 

Turtle’s involvement with the shipment would have been readily apparent to the customer at the pickup location. Similarly, 

the Northern Ag manager’s testimony that Northern Ag had no 

knowledge M&D was assigning loads to Turbo Turtle does not 

account for this readily apparent information from the dropoff 

locations. When considering these factors in the context of the 

entire record, Northern Ag’s internal records and its manager’s 

testimony listing M&D as the motor carrier are insufficient on 

their own to lead a reasonable trier of fact to determine M&D 

was the carrier.

Appellants’ contention that M&D had control over Johnson 

and his equipment fails to support a finding that M&D was a 

motor carrier for the load in question. The record on appeal 

does not indicate that M&D had exclusive control over Johnson 

and his equipment. As analyzed above, the contract between 

M&D and Turbo Turtle did not create or operate as a lease 

37 Schramm, supra note 34.
- 1004 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

agreement, Turbo Turtle was not required to make specific 

drivers available to M&D, Johnson did not directly contract 

with M&D, Johnson’s agreement with Turbo Turtle was that 

he could drive only Turbo Turtle’s equipment for loads issued 

by Turbo Turtle or M&D but there was no such restriction 

if Johnson used other equipment, there was an exception 

in the M&D and Turbo Turtle contract where Turbo Turtle 

could drive outside loads for harvesttime, and Turbo Turtle 

owned and was responsible for maintenance and insurance on 

the equipment.

Based upon our review of the record, all of the above factors indicate that there is insufficient evidence to present a 

genuine issue of material fact that M&D was the motor carrier 

of the load at issue.

3. Negligent Hiring, Training, 

or Supervision

Appellants argue that the district court erred in dismissing 

their claim that M&D negligently hired, trained, or supervised 

Johnson. Under this assignment, appellants contend that the 

district court’s reasoning was tainted by its incorrect determination that M&D was a broker and not a motor carrier.

[25] We have previously held that 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 independent contractor.38 However, as we determined above, the record fails 

to provide sufficient evidence to present a genuine issue of 

material fact that Johnson was M&D’s employee or that M&D 

negligently hired, trained, or supervised Johnson.

[26] FMCSA and FMCSR require motor carriers to obtain 

and maintain records on each of the drivers they employ, such 

as driving and medical records.39 However, as we determined 

38 Kime, supra note 4.

39 See 49 C.F.R. §§ 391.25 (2017) and 391.51(a) (2014).
- 1005 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

SPARKS v. M&D TRUCKING

Cite as 301 Neb. 977

above, the record also fails to provide sufficient evidence to 

present a genuine issue of material fact that M&D was the 

motor carrier of the load at issue and instead demonstrates 

M&D was acting as a broker.

Thus, the district court did not err in dismissing appellants’ claim that M&D negligently hired, trained, or supervised 

Johnson.

4. Cross-Appeal

Because we determine the district court did not err in granting M&D’s motion for summary judgment and dismissing 

appellants’ claims, we need not address M&D’s cross-appeal 

that the district court erred in failing to find appellants’ claim 

of respondeat superior was barred by the settlement between 

appellants, Turbo Turtle, and Johnson.

V. CONCLUSION

For the reasons stated above, there are no genuine issues 

of material fact. M&D is entitled to a judgment as a matter 

of law, because Johnson’s relationship with M&D was that 

of an independent contractor; M&D did not have liability 

under that independent contractor relationship for Johnson’s 

negligence; and M&D was a broker of the load at issue and 

not a motor carrier responsible for Johnson’s hiring, training, 

or supervision. Thus, the district court did not err in granting 

M&D’s motion for summary judgment and dismissing appellants’ claims.

Affirmed.