“Two New Rulings Just Made Double Brokering Your Problem”
Two court rulings landed this month, and read together, they extend the same idea that produced the $604 million verdict against C.H. Robinson. Courts are looking past contracts and authorities and asking a simpler question: who actually controlled this load?
We covered the borrowed employee theory in the $604 million verdict. These two cases apply the same instinct to re-brokered freight, and they reach further down the chain than most brokers assume their exposure ends.
The Case Where Knowing Was the Problem
The first is Hardy v. Singh, out of a federal district court in Nevada, stemming from a July 2022 crash that killed one person and injured another.
The chain matters. Aone Brokerage, doing business as A1Logistics, brokered a load to Lucky Transport. Lucky then brokered it to a third carrier. The driver who ultimately took the load was a former Lucky driver who still used the company’s fuel card and rented a trailer from it, which tells you how blurred these arrangements get in practice.
Aone asked the court to dismiss the claims, arguing it could not be liable for an accident caused by a carrier it never hired, and pointing to the due diligence it performed on Lucky before doing business. That is the argument most brokers would make, and on paper it is reasonable.
Then Aone’s owner testified that he knew Lucky had used third-party carriers on loads in the past.
That answer decided the motion. The court found evidence that Aone “breached their duty of care when they continued to do business with Lucky even though they knew that Lucky was subcontracting their loads,” and wrote that contracting with Lucky “could have been unreasonable because illegal double-brokering can put more high-risk drivers on the road.” Transportation attorney Tyler Biddle, who wrote about the case, noted it will not bind other courts, though plaintiffs’ lawyers will find it useful.
The operational lesson is sharper than the legal one. Vetting a carrier during onboarding did not protect Aone because the problem arose from what it learned afterward, and it did nothing about it. Knowledge you acquire during a relationship becomes part of your duty.
The Case Where the Chain Did Not Protect Anyone
The second is Crane v. Liberty Lane, decided by the Fifth Circuit, which reversed a lower court and reinstated claims against Penske.
The question the appeals court took up was whether a motor carrier that outsourced a job to a second carrier, which outsourced it to a third, can be held liable for the negligence of the driver the third carrier hired. The court found that it can.
Follow the chain. Penske outsourced the job to Liberty Lane through its affiliate broker, Penske Transportation Management. Liberty Lane then used its own affiliate broker to hire a third carrier, OK Trans, which supplied the truck and hired the driver. That driver jackknifed, crossed into oncoming traffic, and killed a passenger in another vehicle.
The court held that Penske was the driver’s employer, three companies removed, because of what it called Penske’s “assumption of control and responsibility of the vehicle.” Not the contract. The control.
The case has three layers. The first is FAAAA preemption, meaning whether federal law blocks negligence claims against a broker at all, which Montgomery already weakened. The second is respondeat superior, meaning whether a company can be vicariously liable for a downstream driver when it held the kind of control that makes someone an employee. The third is the one most people skip: the arrangement involved a lease that was never put in writing, which left disputed facts about who controlled the equipment and who had the right to direct the work, and disputed facts are exactly what keeps a case alive past summary judgment.
That third layer is the warning. Courts will look past your paperwork and the absence of paperwork and focus on operating reality.
Which Hat Are You Wearing
Both cases point to the same structural trap, and it catches companies holding more than one authority.
Co-brokerage between two licensed brokers is legal. Penske entities held brokerage authority, so that piece was not the problem. As Biddle explained, the double-brokering happened when the carrier Penske hired handed the shipment to its own affiliated brokerage to tender to the carrier that crashed. His summary of the industry-wide issue is worth repeating: a lot of people get tripped up over which hat they are wearing.
If your company holds motor carrier and broker authority, every load needs a clear answer to which entity accepted it, which entity tendered it, and on what terms. Keeping freight inside a related family of companies feels efficient and looks very different in a deposition.
What This Actually Requires
The practical advice from these cases is narrow and unglamorous. Do not re-broker illegally. Do not tender freight to carriers you know re-broker. And have a procedure that tells you when a load is being re-brokered, rather than having to find out from a lawyer.
That last one is where most operations are exposed, because detecting re-brokering is a real-time problem. The signals show up in the operating data: a tracking source that does not match the carrier on the rate confirmation; equipment that belongs to a company nobody tendered to; a driver whose name never appears on your carrier’s roster; documents that arrive on someone else’s letterhead. Any one of those is a question worth asking before the load is tendered / delivered for carriage?.
The record matters just as much. Hardy turned on what the broker knew and kept doing. If a carrier gets flagged and you keep tendering, you want your file to show what you did about it, not just that you saw it. Continuous vetting with timestamps answers that question in a way that a certificate from onboarding never will, which is the same argument we made about underwriting yourself after Montgomery.
None of this changes if the verdicts move on appeal. The theory is loose now, and plaintiffs are using it.
Where EKA Fits
We build for both sides of the tender, and we stay out of the middle of the carrier’s operation, which, after these rulings, is not just good manners but good risk management.
EKA delivers tools to aid in prevention of double brokering.
Risk and Compliance Guardrails verify carriers in real time within the same platform that runs the load, and every check is timestamped. EKA Control Center AI surfaces the operational exceptions that are often the first sign a load has moved somewhere it should not have, while there is still time to ask about it. Because both run on a single record, the tender, the carrier, the tracking, and the documents can be compared against each other instead of living in four systems that never talk to each other. That comparison is the whole defense. A broker who can show what it checked, when it checked, and what it did about what it found is in a different position than one reconstructing the story afterward.
The Bottom Line
Montgomery removed the shield. Lipe said ordinary coordination can look like employment. Now Hardy says knowing about re-brokering and continuing anyway is a breach of duty, and Crane says a company three links up the chain can be the driver’s employer.
The connective thread through all four is that courts are measuring control and knowledge, not contracts. Build your operation so both are documented as they happen. Talk to EKA about the record and talk to your counsel about your authorities and your contracts.
This article is general information, not legal advice. It summarizes public reporting on pending and recent litigation, and outcomes may change on appeal. Consult your own counsel regarding your operating authorities, contracts, and specific circumstances.