Reversed and Remanded and Memorandum Opinion filed December 16, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00354-CV

LUCINA PATRICIA TRUJILLO, INDIVIDUALLY AND AS 

REPRESENTATIVE OF THE ESTATE OF NATHANIEL ANDREW 

BOADO, DECEASED; AND IVAN RICARDO TRUJILLO, 

INDIVIDUALLY, Appellants

V.

WERNER ENTERPRISES, INC., Appellee

On Appeal from the 22nd District Court

Hays County, Texas

Trial Court Cause No. 16-2646

M E M O R A N D U M O P I N I O N

Appellants Lucina Patricia Trujillo, individually and as personal 

representative of the estate of Nathaniel Andrew Boado, deceased, and Ivan 

Ricardo Trujillo, individually (together, “Appellants”), sued appellee Werner 

Enterprises, Inc. (“Werner”) following a fatal vehicle accident in Hays County. 

The trial court granted Werner’s motion for summary judgment and Appellants 
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appealed. For the reasons below, we reverse the trial court’s summary judgment 

and remand for further proceedings.1 

BACKGROUND

This case stems in part from Werner’s business relationships with two 

separate entities: retail-chain Tractor Supply Company and Tejcek Enterprises, 

LLC, a freight-hauling carrier. 

In 2005, Werner entered into a “Transportation Agreement” with Tractor 

Supply, under which Werner agreed to provide Tractor Supply with transportation 

for its inventory, store supplies, and equipment. The parties executed an 

“Addendum of Modification” in 2006, permitting Werner to “enlist the use of 

third-party carriers” to assist it in meeting Tractor Supply’s transportation needs.

In 2015, Werner entered into a “Broker-Carrier Agreement” with Tejcek, 

stating that Werner would offer Tejcek certain shipments to transport on a “nonexclusive basis” for “various consignees and consignors”. The parties also 

executed a “Trailer Interchange Agreement”, which stated that Werner would 

interchange Werner-controlled trailers with Tejcek to facilitate the delivery of 

Werner-controlled freight.

Tejcek employed Hyland Meadors as a driver for its freight-hauling 

operation. On April 8, 2016, Meadors was driving southbound on Interstate 35 and 

hauling a Tractor Supply load in a Werner trailer. Driving at approximately 60 

miles per hour, Meadors rear-ended a vehicle that was stopped in traffic. Two of 

the vehicle’s occupants were seriously injured and one died. 

1 This case was transferred to this court from the Third Court of Appeals by Texas 

Supreme Court Transfer Order, Misc. Docket No. 20-9048. Because of the transfer, we must 

decide the case in accordance with the precedent of the Third Court of Appeals if our decision 

otherwise would have been inconsistent with that court’s precedent. See Tex. R. App. P. 41.3. 
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Appellants sued Werner, Tejcek, and Meadors, asserting claims stemming 

from the accident.2 Appellants’ theories of liability as to Werner were bifurcated: 

first, to the extent Werner was acting as a carrier for the Tractor Supply load, 

Werner was vicariously liable for Meadors’ negligence. Second, to the extent 

Werner was acting as a broker for the Tractor Supply load, Werner was negligent 

in hiring or retaining Tejcek.

On the eve of trial, Appellants filed a motion for partial summary judgment 

asserting that Werner was acting as a carrier for the Tractor Supply load. Werner 

filed a motion for traditional summary judgment contending that (1) it was acting 

as a broker rather than a carrier, and (2) Appellants’ claims against Werner in its 

role as a broker were preempted by federal law. 

The trial court signed an order granting Werner’s summary judgment motion

that (1) dismissed all Appellants’ claims, (2) denied Appellants’ motion for 

summary judgment, and (3) dismissed Werner’s cross-claims against Tejcek and 

Meadors, resulting in a final and appealable judgment. The trial court concluded 

that (1) Werner was acting as a broker for the Tractor Supply load, and 

(2) Appellants’ claims against Werner were therefore preempted by federal law. 

Appellants timely appealed.

ANALYSIS

On appeal, Appellants challenge both grounds adjudicated by the trial 

court’s summary judgment: Werner’s status as a broker and the preemption of 

Appellants’ claims. Because we conclude the trial court erred in determining as a

matter of law that Werner was acting as a broker for the Tractor Supply load, we 

reverse the trial court’s summary judgment without reaching Appellants’ second 

issue.

2 Tejcek and Meadors are not parties to this appeal.
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I. Standard of Review and Governing Law

We review a trial court’s ruling on a motion for summary judgment de novo. 

Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). To 

prevail on a traditional motion for summary judgment, the movant must show that 

no genuine issue of material fact exists and that it is entitled to judgment as a 

matter of law. Tex. R. Civ. P. 166a(c). In our review of a summary judgment, we 

consider all the evidence in the light most favorable to the non-moving party. 

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per

curiam). 

When both parties move for summary judgment and the trial court grants 

one motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented. Mann 

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 

2009). The reviewing court should render the judgment that the trial court should 

have rendered. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 

746, 753 (Tex. 2009). 

The United States Code defines a “broker” as:

[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.

49 U.S.C.A. § 13102(2). In contrast, a “motor carrier” is defined as “a person 

providing motor vehicle transportation for compensation.” Id. § 13102(14). 

The implementing regulation clarifies that these roles cannot be held 
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simultaneously with respect to a single load:

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Broker means a person who, for compensation, arranges, or offers to 

arrange, the transportation of property by an authorized motor carrier. 

Motor carriers, or persons who are employees or bona fide agents of 

carriers, are not brokers within the meaning 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. 

49 C.F.R. § 371.2(a). As this regulation states, a carrier cannot act as a broker with 

respect to a load (1) that it is authorized to transport, and (2) for which it has 

accepted and legally bound itself to transport. Id.

“The difference between a carrier and a broker is often blurry.” CEVA 

Logistics U.S., Inc. v. Acme Truck Line, Inc., No. 01-16-00482-CV, 2018 WL 

6694606, at *5 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.) (mem. op.) 

(internal quotation omitted); see also Essex Ins. Co. v. Barrett Moving & Storage, 

Inc., 885 F.3d 1292, 1300 (11th Cir. 2018) (“the line between ‘providing’

transportation and ‘selling’ transportation is a blurry one”). For this determination, 

courts look to “how the party acted during the ‘specific transaction’ at issue, which 

includes ‘the understanding among the parties involved [and] consideration of how 

the entity held itself out.’” Richwell Grp., Inc. v. Seneca Logistics Grp., LLC, 425

F. Supp. 3d 57, 61 (D. Mass. 2019) (quoting ASARCO LLC v. England Logistics

Inc., 71 F. Supp. 3d 990, 998 (D. Ariz. 2014)). 

Consistent with its statutory definition, courts have found that a party is a 

“carrier” in a specific transaction if it takes responsibility for the shipment —

regardless of whether it performed the actual transportation or labeled itself as a 

broker. Id. (citing Tryg Ins. v. C.H. Robinson Worldwide, Inc., 767 F. App’x 284, 

3 However, an entity may have authority to operate as both a broker and a carrier — it 

just cannot exercise this authority in the same transaction. See Schramm v. Foster, 341 F. Supp. 

2d 536, 549 (D. Md. 2004).
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287 (3d Cir. 2019); Essex Ins. Co., 885 F.3d at 1302); see also CEVA Logistics

U.S., Inc., 2018 WL 6694606, at *5 (“[t]his determination is not made based on 

what a party labels itself or if it is licensed as a broker or a carrier”). “[T]he 

operative inquiry is this: pursuant to the parties’ agreement, with whom did the 

shipper entrust the cargo?” Essex Ins. Co., 885 F.3d at 1302.

Because this is a case-specific, fact-intensive analysis, “summary judgment 

might not be appropriate in many cases.” Id.; see also Vanguard Graphics LLC v.

Total Press Sales & Serv., LLC, No. 3:18-CV-55, 2020 WL 6059872, at *4 

(N.D.N.Y. Oct. 13, 2020).

Two recent cases illustrate the type of evidence that creates a fact question 

on this issue and emphasize the importance of contractual language indicating the 

defendant managed or took responsibility for the transportation at issue. See 

Vanguard Graphics LLC, 2020 WL 6059872, at *4-5; Gonzalez v. J.W. Cheatham 

LLC, 125 So.3d 942, 945-46 (Fla. Dist. Ct. App. 2013).

In Vanguard, the plaintiff sued the defendant after a printing press was 

damaged while en route to its destination. 2020 WL 6059872, at *1. Denying in 

part the defendant’s summary judgment motion, the court concluded there was a 

fact question regarding whether the defendant was acting as a carrier or broker for

the underlying transaction. Id. at *5. The defendant did not transport the press but 

instead “hired various shipping firms to do so”, suggesting it was acting as a

broker. Id. However, the parties’ contract also vested the defendant with “general

responsibility for coordinating the transportation of the Press to the United States, 

regardless of whether it actually moved it itself.” Id. at *4. By these

representations, the court concluded the defendant “held itself out as a carrier by 

agreeing to transport the Press,” thus giving rise to an issue of fact on the 

defendant’s status. Id.
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In Gonzalez, the plaintiff sued the defendant and its subcontractor following 

a dump truck accident. 125 So.3d at 943. Reversing summary judgment, the 

appeals court concluded there was an issue of fact regarding whether the

subcontractor was acting as a broker or a carrier.4Id. at 943-44. The subcontractor 

labeled itself as a “broker” in its agreement with the plaintiff; however, the 

subcontractor’s agreement with the defendant also stated that the subcontractor 

would “furnish all supervision” for the job and manage the dump trucks involved. 

Id. at 946. “This was, at a minimum, sufficient record evidence to create a genuine 

issue of material fact” on whether the subcontractor was acting as a broker or a 

carrier. Id.

II. Application

Here, the evidence gives rise to an issue of fact regarding whether Werner 

was acting as a broker or a carrier for the Tractor Supply load. 

Werner’s “Transportation Agreement” with Tractor Supply vested Werner 

with significant responsibility for completing the contracted-for transportation. 

The agreement defines Werner as the “Carrier” and states that Werner is authorized 

“to transport freight . . . and to lawfully furnish to [Tractor Supply] all of the 

transportation and related services provided for in this Agreement.” Werner also 

agreed to “furnish tractors and trailers necessary to perform its obligations under 

this Agreement” and “provide all personnel necessary to perform its obligations 

under this Agreement.” The agreement further states that:

4 The Florida Court of Appeals analyzed this issue in the context of a Florida Workers’

Compensation statute that employed the term “motor carrier”. See id. at 944-45. For its 

determination, the court looked to the relevant federal statutes and other cases interpreting those

statutes. See id. at 945 (“In our view, any distinctions between the federal and state law 

definitions do not affect the result in this case. We will therefore assume, without deciding, that 

federal law is relevant in determining whether [the subcontractor] was acting as a motor 

carrier.”). 
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[Werner] shall perform the transportation services provided for in this 

Agreement as an independent contractor and shall have exclusive 

control and direction of the persons operating the equipment or 

otherwise engaged in these services. [Werner] assumes full 

responsibility for the acts and omissions of these persons . . . .

(emphasis added).

Werner and Tractor Supply subsequently executed an “Addendum of 

Modification”, which permitted Werner to enlist third-party carriers to meet 

Tractor Supply’s transportation needs. But the addendum did not discharge any of 

the responsibilities Werner accepted in the parties’ original agreement; rather, the 

addendum states that Werner “shall remain responsible to [Tractor Supply] for full 

and proper performance of the Agreement” and that “[a]ll other provisions of the 

Agreement shall remain unchanged and of full force and effect”. 

Further, the bill of lading completed at the time Meadors picked up the 

Tractor Supply load lists Werner as the “Carrier”.

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 See CEVA Logistics U.S., Inc., 

2018 WL 6694606, at *6 (concluding the summary judgment evidence established 

the defendant was a “carrier” as a matter of law, the court noted that the bill of 

lading identified the defendant as such).

The record also contains evidence suggesting Werner was acting as a broker 

for the Tractor Supply load. The “Broker-Carrier Agreement” executed by Werner 

and Tejcek identifies Werner as the “Broker” and Tejcek as the “Carrier.” The 

agreement states that Werner will offer to Tejcek “shipments for [Tejcek] to 

transport as a motor contract carrier” and that Tejcek “shall accept said shipments 

and perform the transportation service in a prompt, competent and efficient

manner”.

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“A bill of lading ‘records that a carrier has received goods from the party that wishes to 

ship them, states the terms of carriage, and serves as evidence of the contract of carriage.’” 

Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 94 (2010) (quoting Norfolk S. 

Ry. Co. v. Kirby, 543 U.S. 14, 18-19 (2004)). 
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In his deposition testimony, Werner representative Matthew Perry said

Werner was acting as a broker for the Tractor Supply load and that Tejcek was “the 

only motor carrier at the time of this particular accident.” Similarly, Tejcek 

representative Dustin Tejcek testified that Tejcek (1) “was a carrier for Werner 

Enterprises through their brokerage department”, and (2) was “100 percent liable”

for transportation of the Tractor Supply load.

Considered together, this evidence gives rise to a genuine issue of fact 

regarding whether Werner was acting as a broker or a carrier for the Tractor 

Supply load. See Essex Ins. Co., 885 F.3d at 1302; Richwell Grp., Inc., 425 F. 

Supp. 3d at 61; see also, e.g., Vanguard Graphics LLC, 2020 WL 6059872, at *4-

5; Gonzalez, 125 So.3d at 945-46. 

We sustain Appellants’ first issue and conclude the trial court erred by 

holding that, as a matter of law, Werner was acting as a broker in the underlying 

transaction. Because we reverse on this point, we need not reach Appellants’

challenge to the trial court’s secondary conclusion regarding preemption. See Tex. 

R. App. P. 47.1 (“The court of appeals must hand down a written opinion . . . that 

addresses every issue raised and necessary to final disposition of the appeal.”). 

CONCLUSION

We reverse the trial court’s March 24, 2020 final judgment granting 

Werner’s summary judgment motion and remand the case to the trial court for 

further proceedings. 

/s/ Meagan Hassan

Justice

Panel consists of Justices Wise, Spain, and Hassan.