Reversed and Remanded and Memorandum Opinion filed December 16 , 20 2 1

.

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 RIC AR DO TRUJILLO,

INDIVIDUALLY , Appellant s

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

rep resentati ve of the e state of Nathani el A n drew Boado, deceased, and Ivan Ricardo Trujillo, individually (together, “ Appe l lants ” ) , sued appellee Werner Enterprises , Inc. ( “ Werner ” ) following a fata l vehicle accident in Hays County. The trial court granted W erner ’ s m otion for summary judgment and Appellants2

appealed. For t he reasons below, we reve rse the trial court ’ s summary judgment and remand for further pro ceedings. 1

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

separ ate entit i es: retai l

- chain Tractor Supply Company and Tejcek Enterprises, LLC, a freight

- hauling carrier.
In 2005, Werner entered into a “ Transportation Agreement ” with Tractor Supply , under whi ch Werner agreed to provide Tractor Supply with transportat ion
for i ts inventor y, store supplies, and equipment. The parties executed an

“ A ddendum of M odification ” 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 i nto a “ Broker

- Carrier Agreement ” with Te j ce k
, stating that Werner would offer Tejcek certain shipments to transport on a “ non

exclusive basis ” for “ various consignees and co n signors ”

. The parties also
executed a “ Trailer Interchange Agreement ”
, w hich st at e d that Werner would interchange Werner

- controlled trailers with Te j cek to facilitate the delivery of
Werner

- controlled freight.
Tejcek employed Hyland Me adors as a d river for its freight

- hauling operation. On April 8, 2016, Meadors was driving s outhbou nd 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 th at was stopped in traf fic. Two of
the vehicle ’ s occupants were seriously injured and one died.

1 This case was tra nsf

erred to this cour t from the Third Court of Appeals by Texas Supreme Cou rt Transfer Order , Misc. Docket No. 20

- 9048. Because of the transfer, we must decide the case in accor danc e with the precedent of the Third Court of App eals if o ur decision otherwi se would have bee n in consistent with that court’s precedent. See Tex. R. A pp. P. 41.3.3

A ppellan ts sued Werner, Tejcek, and Meadors , asser ting 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 v icariou sly l ia bl e for Mead o rs ’ negligence. Second, to t he extent
W erner was acting a s a broker for the Tractor S u pply load, Werner was negligent in hiring or retaining Te

jcek.

On the eve of trial, Appellants filed a motion f or partial summary judgment asserting th at We rn er 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) Appellant s ’ claims against Werner in its
role as a broker were pr ee mpted by federal law.

The trial cour t signed an order granting Werner ’ s summar y judgment motion
that (1) dismissed all Appellants ’ cla i ms , (2) den i ed Appellants ’ motion for summary judgment
, and (3) dis missed Werner ’ s cross

- claim s against Tejce k and Meadors, resulting in a final an d appea la ble judgment . The trial court concluded that (1) Werner was acting as a broker for the Tractor Supply load, and (2) Appe llants ’ claims ag ai nst Werner were theref ore preem p ted by federal law.
A ppellants timely appeale d.

A NALYSIS On appeal, Appellants challenge both grounds adju dicated by the trial

court ’s summary judgment: Werner ’s status as a broker and the preemption of Ap pellants ’ c laim s

. Because we conclude the trial court erred in determi n ing 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 Te

j cek and M e adors are not parties to this ap peal.4

I. S t andard of Review and Go verning Law

We review a trial court ’ s ruling on a moti on for su mmary j u dgment de novo

. Tarr v. Timberwood Park Owners Ass ’ n , 556 S.W.3d 274, 278 (Tex. 2018). To prevail on a tra ditional motion for s ummary judgment, the movan t must show that

no g e nu ine issue of material fact exists and that it is entit led to ju dgment as a

m atter of law. Tex. R. Civ. P. 166a (c). In our review of a s ummary judgment, we
consider all t he evidence in the light most favorable to the non

- moving pa rty. Goodyear Tire & R ub ber Co. v. Mayes , 23 6 S.W.3d 754, 756 (Tex. 2007) (per curiam)

. When both parties move for summa ry judgment and the trial cour t grants

on e motion and denies the other, the revi ewing court should review both parties ’ summary judgment evidence and determ in e all que stions presented. Mann Frankfort Stein & Lip

p Advisor

s, Inc. v. Fi elding , 289 S.W.3d 844, 848 (Tex. 2009). The reviewing court should render the judgment tha t the trial court should
hav e rendered

. See Myrad Props., Inc. v. LaSalle B ank Nat ’ l As s ’ n , 300 S.W.3d 746, 753 (Tex. 2009).

The Un ited Sta tes Code defines a “ br oker ” as: [A] person, ot her than a motor carrier or an employee or agent of a

mo tor carrier, that as a principal or age nt sells, offer s for sale, negotiates for, or hol ds itself ou t by soli citation, advertisement, or otherwise as sell ing, prov iding, or arr anging for , transportati on by motor carrier for compensation.
49 U.S.C.A. § 13102(2). In contrast, a “ motor carr ier ” i s defined as “ a person providing motor vehicle tr ansportati on for comp ensation. ” Id

. § 13102(14). The implement ing regul ation clarifi e s that these roles cann ot be held5

sim ultaneously with respect to a single load : 3
Broker means a person who, for compen sation, arranges, or offers to arrange, the trans portation of property by an authorized motor carrier. Motor carri ers, or p ersons who ar e employees or bona fide agents of carriers, are not brokers within the meaning of this section when they arrange or of

fer to arrange t he transportation of shipments wh ich they

a re authoriz ed to transport and which they have accepted and legal ly bound them s elves to transport

. 49 C.F.R. § 37 1.2 (a)

. As this regulation states , a carri er cannot act as a broker with respect to a load (1) that it is autho rized to transport , and (2) f or whi ch i t has accepted and legally bound itself to tra nsport

. Id

.

“ The dif ference 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 D is t.] Dec. 20, 20 18, n o pet.) (mem. op.) (internal quota tion omit ted) ; see als o Essex Ins. Co. v. Barrett Moving & Storage,
Inc. , 885 F.3d 1292, 1 300 (11th Cir. 2018) ( “ the line between ‘ providing ’ transportation and ‘ selling ’ transportation is a blurry on e ” ). For th is de termination,

courts look to “ how the pa rty acted during the ‘ specific transaction ’ a t issue, which
includes ‘ the under standing among t he parties involved [a nd] consideration of how the entity held itself out. ’ ” Richwell Grp., Inc. v. Sene ca Log istics Grp. , LLC , 4 25 F. Supp. 3d 5 7 , 61 (D. Mass. 2019) (q uoting ASARCO LLC v. Engla nd Logistics
In c. , 71 F. Supp. 3d 990, 99 8 (D. Ariz. 2014))

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

“ carrier ” in a specific tr ansa ction if it takes responsibili ty for the shipment

—

re ga rdl ess of whethe r it perfo rme d the actual transportation or labeled itself as a
broker. Id . (citing Tryg Ins. v. C .H. Robinson Worldwide, I nc. , 767 F. App ’ x 284,

3 However, an entity may have auth o rity to operate as both a broker and a carrier

— i t jus t c ann ot exercise this aut hority in the same transa ction

. See S ch ramm v. Foster , 341 F. Supp. 2d 536, 549 (D. Md. 2004)

.6

287 (3d Cir. 2019); Esse x Ins. Co

. , 885 F. 3d at 1302) ; se e also CEVA Logistics
U .S., In c. , 20 18 WL 6694606 , a t *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 in quiry is this: pursuant to the p ar ties ’ agree ment, with wh om did the shipper entrust the cargo ? ” Esse x Ins. C o. , 885 F.3d at 1302.

Because t his is a cas e

- s peci fic, fact

- intensive analysis
, “ summary judgment might not be appropriate in many cases

. ” Id .; see als o Vanguard Graphics LLC v.
T otal Press Sales & S e rv

. , LL C , No. 3:18

- CV

- 55 , 2020 W L 60598 72, 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 e mpha size the i mportance of contractual language indicating th e defendant managed or to ok responsibility for the tran s portat ion at issue. S ee Vanguard Graphics LLC , 2020 WL 6059872, at *4

- 5; Gonz alez v. J.W. Cheatham
LLC , 125 So.3d 942, 945

- 46 (Fla. Dist. Ct. App . 2013).

In Vanguard , the plaintiff sued the defendant a fter a pri nting press w as damaged while en route to it s dest i na tion. 2020 W L 605 9872, at *1. Denying in part the defendant ’ s summary judgment motion, the court concluded there was a fact q uestion regarding whether the defendant was acting as a carrier or broker for
the un derlyin g transaction. Id . at *5. T he def end ant did not t ransport the press but
instead “ hired various shipping firms to do so ”
, suggesting it was acting as a
broker. Id

. However, t he parties ’ contract al so ve sted th e defendant with “ g eneral responsibil ity for coordinating the transportat ion of th e Press to th e United States, regardless of whether it actually moved it itself. ” Id . at *4. By these representations, the court concluded the defen dant “ held it self out as a carrier by

ag re eing to transport the Press
, ” thus giving rise to a n i ssue o f f act on the
def endant ’ s status

. Id

.7

In Gonz alez
, the plaintiff su e d the d efe ndant a nd its subcontracto r following

a dump truck accident

. 125 So.3d at 943

. Reversing summary judgment, the

ap pe als court conclude d there was a n issue of fact regardi ng whe the r the
subcontr actor w as acting as a broker or a carrie r. 4 Id

. at 943

- 44. The subcontrac tor labeled itself as a “ b roker ” in its agreement with the plaintiff; however, the

su bcontractor ’ s agr ee ment with the defendant also stated that the subcontra ctor

w oul d “ 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
is sue of mater ial fact ” on w he ther the subcontractor was acting as a broker or a

car rier. Id

. II. Application
Here, the evidence gives ri se to an issue of fact regarding whether W e rner

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

Werner ’ s “ Transportation Agreement ” wi th Tractor Supply vested Werner with significant respo nsibil ity for completin g the contracte d

- for transportation. The agreement defines Werner as t he “ Carrier ” and states that Werner is authori zed

“ to transport freight .

. . an d to lawfully furnish to [ T r actor Supply] all of the transportation and rela ted se rvices pr ovided for in this Agreement. ” Werner also agreed to “ fur nish tractors and trailers necessary to perform its obligations under this Agreement ” and “ provide all personnel necessary to perform i ts obligations under this Agreement. ” The agree ment f urther st ates that :

4 The F l orida Court of Appeals a nalyzed this issue in the context of a Florida Work ers ’ Compensation statute that employed the te rm “ m otor carrier ”

. See id

. at 944

- 45. For its deter mination, the court looked to the relevant federa l statutes and other cas es int erpret ing those statutes. See id . at 945 ( “ In ou r v iew, any distinctions bet ween the federal and state law de f initions do not a ffect the result in thi s c ase. We will ther efore assume, without deciding, that federal law is re levant i n determining wh ether [the subcontractor] was acting as a motor carrier. ” ).8

[ W erner ] shall perform the trans portati on services provided for in this Agreement as an i ndepen dent contract or and shall have exclusive control and direction of the persons operat in g the equipment or otherwise engaged in these se rvices . [We rne r] assumes ful l responsi bility for the acts and omi ssions of these persons .

. . . (emphasis added).

Werner and Tractor S upply subsequently executed an “ Addendum of
Modification ”
, which perm itt ed Werner to enlist third

- party carriers to meet
Tract or Sup p ly ’ s transportat ion needs. But the addendum d id not di scharge any of the respo nsibilities Werner acc epted in the parties ’ original agreement ; rather, the
addendum states that Werner “ shal l re mai n resp o nsible to [Tractor Supply] for full and proper perfor man ce of the Agre ement ” and that “ [a]ll other p ro v isions of the Agreement shall re main unchanged an d of full force and effect ”

. Further , the bill of lad ing completed at the time Meadors pic ked up the Tractor Supply load lists Werner as the “ Carrie r ”

. 5 See CE VA Logistic s U.S., Inc. , 201 8 WL 6694606, at * 6 ( concluding the summary judgment evidence establishe d
the def endant was a “ carrier ” as a matter of law , the court noted that the bill of
ladin g identif

ied the defendant as such).

T he record also c ontain s e vid ence sugges ting Werner was acting as a br oker
for the Tra ctor Supply load. The “ Broker

- Car rier Agreement ” execut ed by Werner and Tejcek identifies Werner as the “ Broker ” and Te j cek as the “ Carrier

. ” The agreement states th at Werner will offer to Te jce k “ shipment s f

or [Tejcek] to transport as a motor c ontract carrier ” and that Te j cek “ shall accept said shipments and perform the transportation service in a prompt , competent and efficient

mann er ”

.

5 “ A bill of ladi ng ‘ records that a carrier has received goods from the party that wishes to sh ip them, states t he t erms of c arriage, and serves as evidence of the contract o f carriage. ’ ” Kawasa ki Kisen Kaisha Ltd. v. Regal

- Beloit Corp. , 561 U.S. 89, 94 (2010) ( quoting No rfol k S. Ry. Co. v. Kirby , 543 U.S. 14, 18

- 19 (200 4)).9

In his depositi on testimony, Werner repre sentativ e Matt hew Perry sa id
We rner was acting as a broker for the Tractor Supply load and that Te jcek was “ the only motor carrier at the time of this particular accident

. ” Similarly, Tejcek representativ e Dus tin Tejcek te stified that Tejcek (1) “ was a carrier fo r Wern er Enterpr ises th rough their brokerage department ” , and (2) was “ 100 per cent liable ”
for tr ansportation of the Tractor Supply load.

Con sidered together, this evidence gives rise to a genuine is sue of fact regarding whether Werner was acting as a brok er or a c arrier for the Trac tor Supp l y load. See Essex Ins. Co. , 885 F.3d at 1302; Richwe l l Grp. , Inc. , 425 F. Supp. 3d at 61; s ee also , e. g., Vanguard Graphics LLC , 2020 WL 6059872, at *4

- 5; Gonz alez
, 125 So.3d at 945

- 46

. We sustain Appe llants ’ first i ssue a nd conclude the t rial 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 Appell ants ’ challenge to the trial court ’ s secondary conclu sion r egardi ng preemption. S ee Tex. R. App. P. 4 7.1 ( “ The court of appeals must ha nd down a written opinion .

. . that addresses every issue raised and necessary to fina l disposition of the appeal. ” ).

C O NCLUSION

We reverse th e trial court ’ s March 24, 2020 f inal j udg ment grantin g Werner ’ s summary judgment mot ion and remand the case to the trial court for further procee dings.

/s/ Meagan Hassan Justice

Panel consists of Justice s Wise, Spain, and Hass an.