The estate of Lyndon Dean Meyer has urged the Fifth Circuit to deny Penske's request for an en banc rehearing, arguing the appellate ruling that held Penske Logistics liable for a fatal 2018 crash was "faithful to the text of the statute and regulations."

The filing last week completes the briefing on whether the full appeals court will reconsider a three-judge panel decision that trucking's legal community views as one of the most consequential liability precedents in years. Penske companies won at the district court level in the Southern District of Texas. The Fifth Circuit reversed, and Penske now wants the larger circuit to take the case known as Crane vs. Liberty Lane.

Meyer was killed on impact the day after Christmas 2018 when a truck put on the road through a chain that began with a Penske company slammed into his vehicle on Highway 202 in Bee County, Texas, roughly between San Antonio and Corpus Christi.

What is the chain of liability at issue?

The freight moved through a multi-step sequence. Penske Logistics was hired by car seat manufacturer Adient to move the product. It handed the job to Penske Transportation Management (PTM), its brokerage affiliate. PTM brokered the load to Liberty Lane, a carrier. Liberty Lane in turn brokered it to OK Trans. An OK Trans driver, Satnam Singh Lehal, crashed into Meyer.

Penske says it did not know about the double brokering from Liberty Lane to OK Trans. That fact, however, is not central to the case; Penske cites it in passing to argue it had no connection to the fatal accident. The ruling that alarms the industry is the appellate finding that Penske Logistics — the carrier at the start of the chain — was liable for Lehal's actions.

In its en banc petition, Penske Logistics and PTM stressed that the initial agreement was with PTM, which then brokered the load to Liberty Lane. They quoted the district court's favorable finding that it had "found no cases where a court imposed statutory-employer liability absent an arrangement…between the motor carrier and the vehicle's owner or driver."

Penske called the appellate decision a first: holding a carrier vicariously liable "as a statutory employer of the owner-operator of the truck whom it did not control, and with whom it had no arrangement, no communication and no knowledge of its existence."

The Supreme Court's Montgomery ruling had already stripped PTM of any broker-liability protection that might have existed before that decision.

How do the plaintiffs read the control statute?

The Meyer estate's opposition brief takes a different view of what counts as an arrangement.

"Penske (Logistics) did have 'an arrangement' with the operator of the truck, which it effectuated through its broker subsidiary and a relationship with another motor carrier," the plaintiffs argued. "The fact that this 'arrangement' was indirect, rather than direct, makes no difference under the unambiguous statutory text or the regulatory scheme."

The plaintiffs grounded their argument in 49 U.S.C. § 14102 and 49 C.F.R. §§ 376.11-12 and 376.22, which they said impose vicarious — or "statutory employer" — liability on a motor carrier that "uses motor vehicles not owned by it to transport property under an arrangement with another."

"Penske certainly could and should have complied with the statutory and regulatory requirements by obtaining a compliant lease of the truck and exercising the control and supervision over the truck and its driver that the (statute and regulations) require," the brief argues. "If Penske didn't know what a driver was doing on its behalf, it was only because Penske neglected all of its statutory and regulatory duties."

The estate added that the Fifth Circuit's decision "was faithful to the text of the statute and regulations, which were adopted to eliminate the very abuses Penske…(seeks) to perpetuate. This case doesn't warrant rehearing en banc."

The brief also restated the core legal theory: "The right of control imposed by the statute and regulations creates 'statutory employment,' making the motor carrier vicariously liable for the driver's negligence, even when he is an independent contractor."

Who is backing Penske?

The en banc petition has drawn amicus support. The American Trucking Associations and the Truckload Carriers Association filed a joint brief. The Trucking Industry Defense Association filed its own, describing itself as "an international organization that includes over 1,900 members comprised of motor carriers, transportation logistics companies, insurers of motor carriers, third party claims administrators, and legal counsel."

For brokers and carriers, the stakes are direct: if the panel ruling stands, a carrier at the top of a brokered chain can face statutory-employer liability for a truck it never contracted with, never communicated with and never knew existed. A Fifth Circuit decision on whether to grant the en banc hearing will determine whether that liability theory gets a full rehearing.