Mr. Dwinell is a Professor of Transportation Brokering. He is the author of several Text Books on the subject, a frequent contributor to transportation industry periodicals. He uses his books and his DVD productions to instruct transportation entrepreneurs, attorneys, judges and juries in the intricacies of negotiating the movement of freight teaching virtually every week in his own Licensed* school in Arizona. The school www.loadtraining.com has trained over 16,000 individuals since 1987 and offers Journeyman and Master Broker Certification classes. He conducts Seminars as well as consulting for clients building Broker/Agent networks and to those writing software solutions to make the operation paperless.

His learning programs include, “ Transportation sales & marketing, Freight Rate Development, Negotiating and Positioning in the marketplace, Brokerage Operations and integrating with trucking and intermodal operations, Agency, Information accumulation and retrieval, Database development, Bookkeeping – The Load Master Ledger System, Transportation cash management- operations and theory, voluntary claims resolution, among others… He has started 5 brokerage and sold 4, currently operating www.Truckalocity.com (MC 360363) and has developed a network of Agents (Master Brokers) all throughout North America.

His principle theme is that there is one function of the FEDERAL Property Brokers License as provided for by FMCSA and DOT – to broker freight as a “travel agent” without liability... a feat that few, if any, accomplish. His programs are designed to instill the basics of Brokering Operations and Contracting so as to conduct business without liability. Matriculating Master Brokers learn how to conduct brokering without liability and in the presence of a fully liable motor carrier operation.

Please call 623-332-5199 to discuss fees for consulting.

David G Dwinell Instrumental in RECORD Verdict

Date: March, 2010 On the afternoon of March 5, 2010, a Sacramento jury returned a $24.3 million verdict for Diana Jimenez, an Oregon resident, who will turn 15 next month. $20,000,000.00 of the verdict was for Diana’s past and future pain and suffering. At age 9, Diana was run over by the semi-tires of a truck and suffered pelvic degloving injuries, as well as orthopedic injuries. "Although she now “appears” normal and returned to school five months after her accident, she will live a life of musculoskeletal weakening that will be progressive in nature, and will endure a lifetime of surgeries and limitations," says attorney Robert Buccola. According to attorney Steven Campora, “Diana is lucky to have such wonderful family support, but her worst days seem to be unfortunately in front of her.” Attorney Buccola stressed reality in his final damage argument. Liability was bifurcated at the request of Defendant, Freeway Transport. After Plaintiff prevailed on the liability phase of the case in mid-December of last year. “We established that Freeway Transport either acted illegally as a trucking broker for this haul, or was acting as a common carrier and was liable for the safety violations of its driver,” said attorney Campora. The damage phase of the case went to trial in mid-February of this year. Freeway Transport, in 5 years, made no settlement offers until the week before the damage phase trial when it offered $2 million. Just before opening statements, Freeway offered $5 million, which was increased to $6 million after opening statements. A week and a half into the trial, Defendant offered $10 million to counter Plaintiff’s $24 million demand. With this verdict, Diana can get the highly specialized medical care she badly needs, echoed by both Buccola and Campora. It was a good day for a deserving young girl.

Read full story at Dreyer - Babich - Buccola - Wood Law Office

When is a broker a common carrier

Forty percent (40%) of trucking business is brokered (about $300 Billions in 2007). The liability of the broker is in question.
One motor carrier hiring another motor carrier is brokering and by far is the majority of the billions of the percentage figure quoted above. Both of these carriers are 100% liable for loss, one to the other. The legal precept is the definition of “strict” liability as it has been interpreted since 1601, when Judge Coke presided in the case Southcote v Bennet, where “strict” liability was decided in a multiple carrier loss, giving birth to the concept of the “common carrier”. The precept is still in force and Regulation and Statue memorialize Strict Liability as the modus operandi that governs modern transportation. Brokering occurs, a majority of the time as one mode hiring another mode of transportation and both will be liable for the result. Neither mode of transportation can barter or contract away their liability for the transportation to the public or individual buyer of transportation. Licensed property brokers, however can escape this “Strict Liability” ostensibly
The United States has created the concept and license of the “property broker” since trucking was decided to be regulated in the 1930s. The Licensed property broker is “to arrange transportation for compensation” between willing buyers and sellers (mode) of transportation, obviating that the brokering of transportation could be accomplished without “Strict Liability” assigned to the motor carrier, much as a travel agent escapes liability in the event of a plane crash.
The liability of the Broker is determined by his sales and operations conduct of the actual brokering transaction of transportation loss, by recent DOT Chief Counsel opinion. The net effect of the Governments’ position, is that a broker can maintain his lack of liability, as long as they do not undertake any of the activities of “an offeror or transporter” as defined. Thus, should a broker undertake the activities of a motor carrier during brokering sales and/or operations activity, they would in fact, be conducting business as a motor carrier (common carrier), not a broker as defined. The old saying modified to fit; “If it quacks like a common carrier, it must be a common carrier, not a broker” has been the refrain in most recent cases I have been associated with.
Broker’s defending themselves against motor carrier liability have had mixed results with the issue in various State and Federal Court actions. Virtually every broker in a transportation loss, takes the position that “they are not liable for loss” because they are “licensed” and thus are immune from action. In actuality in most cases, the broker is in fact acting and is then liable as a motor carrier. Most brokers receive their License from the FMCSA (FMCSA.dot.gov) for $300 believing they are immune from liability. They are assuming 100% of the liability for a 15% commission, and consequently, results are that only 1 in 19 brokers survives into a 3rd year of business, primarily because there is insufficient cash flow to cover losses.
Most License applicants hold or are about to receive an “Authority “ as a motor carrier. They get the License thinking that they can “take possession” of cargo and broker it to another carrier without having to insure the cargo, because the hauling carrier has theirs, thus escaping the “Strict Liability”. Most brokering, then are, in fact from one carrier to another. A licensed broker can accomplish the feat of separating liabilities, only if they separate the two businesses sales statements and operation actions.
Very few broker’s are successful in operating as a non liable broker ( travel agent of freight). Training is required because the two operations, carrier and broker actions, are diametrically opposed to each other in function, purpose, and intent.
Shippers have been moving away from working with brokers ( w/o assets) who are not liable toward those brokers who accept, bill and insure the risks as a “truck broker”. In other words shippers are foregoing the price benefit of the travel agent for freight for the security of a motor carrier who can be held 100% liable for loss. In my most recent experience, a shipper was completely flummoxed by working with one of the nation’s largest carriers who bailed on their liability for a stolen cargo using their brokering Contract as a get out of jail FREE card..
Solution to this problem is huge, eliminate the broker’s license? Be careful what you wish for, over 60% of America’s food supply is hauled by America’s smallest carriers who rely on brokers of both types, for 100% of their livelihood.

TITLE 49 - UNITED STATES CODE OF FEDERAL REGULATIONS (CFR)

49 CFR 371 Brokers of Property

49 CFR 371.2 Definitions
A broker means a person who, for compensation, arranges, or offers to arrange, the transportation of property by an Authorized carrier. Motor Carriers, or persons who employees or bona fide agents of carrier, are not brokers within the meaning of this section.

OPINION AS TO COMMON PRACTICE

There are many meanings of the word “broker” and “brokering” in common practice in surface and air transportation.

The Property Broker as defined above is “Licensed” by the FMCSA to provide brokering services. The only function of the Property Brokers License is to arrange transportation without liability. Note: any Authorized motor carrier can hire another Authorized motor carrier, as they have since time immemorial, without a “License”. The distinction in brokering types then is in the definition of “arrange transportation without liability” and “hire a motor carrier”.

In fact within the definitions by common practice, motor carrier to motor carrier “brokerings” are the most common type of surface transportation brokering in the United States. Licensed brokering without liability is the least common practice.

Let us examine the most common form of brokering in common practice, the “Truck Broker”. Truck broker is any person who has both “Authority” and “License” as in this case. The person with Authority, within its definition, “takes possession” of property for interstate transportation purposes. The Licensed broker does not take possession of property, but merely “arranges” transportation, and pursuant to Federal Regulation, Insurance* is NOT required to be a Licensed broker. On the other hand, Liability Insurance is required to obtain and maintain “Authority” to be a “carrier”.

All of these definitions are tested in this legal action and are not inclusive of all forms and usage, but I make this distinction for purposes of this legal action.

*The required Broker’s “Surety Bond” is not an Insurance instrument, but a collateralized instrument, even though the Federal Government calls the Broker’s License an “Authority” and calls the “Surety Bond” insurance, it is neither. Liability and cargo Insurance is not a requirement to obtain or maintain a “License”. Authority is a grant via the “Commerce Clause” in Section 8 of the Constitution of the United States. The broker receives a License as opposed to an Authority. The License serves Authority and is not provided pursuant to the Commerce clause. The Property Broker is not a “mode” of transportation as defined in Statute. Authority is granted to all “modes”. Modes are not licensed, they have an “Authority”.