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Bits & Pieces

GBTI, Inc. v. Insurance Co. of Pennsylvania

United States District Court,

E.D. California.

GBTI, INC., Gill Bros. Trucking, et al., Plaintiffs,

v.

INSURANCE COMPANY OF the State of PENNSYLVANIA, et al, Defendants.

No. CV F 09-1173 LJO DLB.

 

July 29, 2009.

 

ORDER ON DEFENDANTS’ F.R.Civ.P. 12 MOTIONS (Doc. 4.)

 

LAWRENCE J. O’NEILL, District Judge.

 

INTRODUCTION

 

Defendant insurance agent seeks to dismiss plaintiff insureds’ breach of contract and bad faith claims as a matter of law. Defendants insurer and insurance agent further seek to strike allegations regarding issuance of a policy and punitive damages. Plaintiff insureds filed no opposition papers. This Court considered defendant insurer and insurance agent’s F.R.Civ.P. 12(b) (6) motion to dismiss and F.R.Civ.P. 12(f) motion to strike on the record and VACATES the August 10, 2009 hearing, pursuant to Local Rule 78-230(c), (h). For the reasons discussed below, this Court DISMISSES plaintiffs’ claims against defendant insurance agent and STRIKES allegations regarding issuance of a policy and punitive damages.

 

BACKGROUND

 

The factual recitation is derived generally from plaintiffs’ operative original complaint (“complaint”), the target of defendants’ challenges.

 

The Parties

 

Plaintiffs Harninder Gill, Harjinder Gill, Charan Gill, Pakhar Gill and Gurdial Gill were officers, directors, shareholders and employees of plaintiffs GBTI, Inc. (“GBTI”) and Gill Bros. Trucking (“Gill Bros.”). GBTI is an interstate motor carrier. GBTI and Gill Bros. owned, leased and operated trucking equipment.

 

GBTI, Gill Bros. and the individual plaintiffs will be referred to collectively as “plaintiffs.”

 

Defendant Insurance Company of the State of Pennsylvania (“ICSP”) is an auto and trucking insurer. The complaint identifies as an authorized agent defendant The American International Group Inc. dba The Truck Insurance Group a division of American International Group Risk Management (“Truck”).

 

The Policies

 

In December 2004, ICSP and Truck (collectively “defendants”) issued to GBTI a commercial automobile liability policy (“GBTI auto policy”) and a commercial general liability policy (“GBTI CGL policy”). Also in December 2004, defendants issued to Gill Bros. a commercial general liability policy (“Gill Bros. CGL policy”).

 

Defendants note that plaintiffs do not attach to the complaint a copy of the Gill Bros. CGL policy but merely attach a certificate of liability insurance referencing commercial general liability policy no. SGL1807103 and the certificate holder as “Gill Brothers Trucking.” The complaint alleges that the GBTI CGL policy bears the same policy no. “SGL1807103” and that the Gill Bros. CGL policy no. is SGL1807105.

 

The Underlying Action

 

On August 14, 2005, a Gill Bros.’ tractor trailer, which was leased to and operated by GBTI, was involved in a multi-vehicle collision in Missouri. The collision resulted in a consolidated personal-injury action in Missouri federal court (“underlying action”). On February 28, 2007, a complaint was filed to attempt to pierce the corporate veils of GBTI and Gill Bros.

 

In March 2007, plaintiffs tendered defense and indemnity of the underlying action to defendants, who on April 17, 2007 denied the tender.

 

Plaintiffs’ Claims

 

The complaint alleges that plaintiffs “were forced to retain private counsel to defend themselves” and “have incurred substantial costs attendant to the legal fees incurred” to defend the underlying action. The complaint alleges:

 

1. A (first) breach of contract claim that “Defendants breached their contractual obligations to the Plaintiffs under the terms of all of the stated Policies” by “failing to defend” plaintiffs in the underlying action; and

 

2. A (second) claim of tortious breach of the implied covenant of good faith and fair dealing in that defendants:

 

a. Failed to provide a defense when the potential for coverage existed;

 

b. Failed to provide a prompt and reasonable explanation to deny a defense;

 

c. Failed to conduct an independent investigation and analysis of potential coverage;

 

d. Failed to grant plaintiffs the benefit of doubt regarding potential or possibility for coverage;

 

e. Placed defendants’ financial interests above plaintiffs’ financial interests;

 

f. Engaged in conduct designed to defeat coverage;

 

g. Applied the policies’ terms to defeat coverage without regard to the policies’ express terms;

 

h. Compelled plaintiffs to initiate this action;

 

i. Failed to investigate plaintiffs’ claim for defense fairly and objectively;

 

j. Denied a defense to plaintiffs based on an erroneous interpretation of the policies;

 

k. Ignored allegations and evidence to trigger the duty to defend;

 

l. Denied plaintiffs a defense without considering all information reasonably available;

 

m. Denied plaintiffs a defense based on speculation;

 

n. Misrepresented and overlooked important allegations in the underlying action; and

 

o. Failed to inquire and investigate all possible bases that might support a defense.

 

The complaint seeks to recover legal fees and expenses incurred to defend the underlying action and emotional distress and punitive damages.

 

TRUCK’S F.R.Civ.P. 12(b)(6) MOTION TO DISMISS

 

Truck seeks to dismiss plaintiffs’ breach of contract and bad faith claims in that it was not a party to the policies issued to GBTI and Gill Bros.

 

F.R.Civ.P. 12(b)(6) Standards

 

A F.R.Civ.P. 12(b)(6) motion to dismiss is a challenge to the sufficiency of the pleadings set forth in the complaint. “When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir.1997). A F.R .Civ.P. 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696,699 (9th Cir.1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir.1995).

 

In resolving a F.R.Civ.P. 12(b)(6) motion, the court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir.1996). Nonetheless, a court is “free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.” Farm Credit Services v. American State Bank, 339 F.3d 765, 767 (8th Cir.2003) (citation omitted). A court need not permit an attempt to amend a complaint if “it determines that the pleading could not possibly be cured by allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990).

 

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citations omitted). A complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. Moreover, a court “will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing Ass’n v. Hanes, 181 F.R.D. 629, 634 (S.D.Cal.1998).

 

For a F.R.Civ.P. 12(b)(6) motion, a court generally cannot consider material outside the complaint. Van Winkle v. Allstate Ins. Co., 290 F.Supp.2d 1158, 1162, n. 2 (C.D.Cal.2003). Nonetheless, a court may consider exhibits submitted with the complaint. Van Winkle, 290 F.Supp.2d at 1162, n. 2. In addition, a “court may consider evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b) (6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006). A court may treat such a document as “part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). Such consideration prevents “plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting reference to documents upon which their claims are based.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998). A “court may disregard allegations in the complaint if contradicted by facts established by exhibits attached to the complaint.”   Sumner Peck Ranch v. Bureau of Reclamation, 823 F.Supp. 715, 720 (E.D.Cal.1993) (citing Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987)). Moreover, “judicial notice may be taken of a fact to show that a complaint does not state a cause of action.” Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir.1956); see Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir.1997). As such, this Court may consider the exhibits to plaintiffs’ complaint.

 

Breach Of Contract

 

Truck argues there is no contractual relationship between it and plaintiffs in that the contracting parties are ICSP and GBTI. Truck notes “there is no reference to Truck as the insurer on either the Auto or General Liability policies” and that as a non-party, it is not subject to a breach of contract claim.

 

California Insurance Code section 22 defines insurance as “a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event.” “An insurance policy is, fundamentally, a contract between the insurer and the insured.” Stein v. International Ins. Co., 217 Cal.App.3d 609, 613, 266 Cal.Rptr. 72 (1990). “[N]on-insurer defendants [are] not parties to the agreements for insurance.”   Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 576, 108 Cal.Rptr. 480, 510 P.2d 1032 (1973).

 

The exhibits attached to the complaint indicate that Truck is neither an insurer nor a party to an insurance agreement with plaintiffs. Plaintiffs offer nothing to reveal that Truck is a party to contract subject to plaintiffs’ claims in this action. This Court construes absence of plaintiffs’ opposition as plaintiffs’ concession that Truck is not subject to a breach of contract claim.

 

Breach Of Implied Covenant Of Good Faith And Fair Dealing

 

Truck argues that it is not subject to a claim for breach of implied covenant of good faith and fair dealing in absence of a contractual relationship with plaintiffs.

 

“The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” Smith v. City and County of San Francisco, 225 Cal.App.3d 38, 49, 275 Cal.Rptr. 17 (1990). “California courts repeatedly have stressed that the covenant of good faith and fair dealing arises from a contractual relationship and is limited to the parties in that relationship.” U.S. for Benefit and Use of Ehmcke Sheet Metal Works v. Wausau Ins., 755 F.Supp. 906, 912 (E.D.Cal.1991). An insurer’s duty of good faith and fair dealing “arises from a contractual relationship existing between the parties.” Gruenberg, 9 Cal.3d at 577, 108 Cal.Rptr. 480, 510 P.2d 1032.

 

The “implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.” Pasadena Live, LLC v. City of Pasadena, 114 Cal.App.4th 1089, 1093-1094, 8 Cal.Rptr.3d 233 (2004) (citation omitted.) “Without a contractual relationship, [plaintiffs] cannot state a cause of action for breach of the implied covenant.” Smith, 225 Cal.App.3d at 49, 275 Cal.Rptr. 17. As a nonparty to the insurance contract, non-insurers “are not, as such, subject to an implied duty of good faith and fair dealing.” Gruenberg, 9 Cal.3d at 576, 108 Cal.Rptr. 480, 510 P.2d 1032.

 

As noted above, Truck is not a party to an insurance contract with plaintiffs. In the absence of a contractual relationship, Truck is not subject to an implied covenant of good faith and fair dealing. Truck is not subject to obligations contemplated by a contract to which it is not a party. The record reveals that Truck is a non-insurer and thus not subject to plaintiffs’ claims. Plaintiffs’ lack of opposition is a concession that their bad faith claim fails as to Truck.

 

DEFENDANTS’ F.R.Civ.P. 12(f) MOTION TO STRIKE

 

Defendants seek to strike allegations that they issued the Gill Bros. CGL policy and punitive damages allegations.

 

F.R.Civ.P. 12(f) Standards

 

F.R.Civ.P. 12(f) empowers a court to strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike may be granted if “it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” LeDuc v. Kentucky Central Life Ins. Co., 814 F.Supp. 820, 830 (N.D.Cal.1992); Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D.Cal.1991). “[T]he function of a [F.R.Civ.P.] 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983); Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev’d on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)..

 

An “immaterial” matter has no essential or important relationship to the claim for relief or defenses pleaded. Fantasy, Inc., 984 F.2d at 1527; Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116, 120, n. 5 (D.P.R.1972); Fleischer v. A.A.P ., Inc., 180 F.Supp. 717 (D.Pa.1958). An “impertinent” allegation is neither responsive nor relevant to the issues involved in the action and which could not be put in issue or given in evidence between the parties. Gilbert, 56 F.R.D. at 120, n. 6; Burke v. Mesta Mach. Co., 5 F.R.D. 134 (D.Pa.1946). An “impertinent” matter consists of statements that do not pertain and are unnecessary to the issues in question. Fantasy, Inc., 984 F.2d at 1527.

 

Matters may be stricken to reduce trial complication or if challenged allegations are so unrelated to plaintiff’s claims to be unworthy of consideration as a defense and their presence in the pleading will prejudice the party seeking to strike matters. Fantasy, Inc., 984 F.2d at 1527. “[A] motion to strike may be used to strike any part of the prayer for relief when the damages sought are not recoverable as a matter of law.” Bureerong v. Uvawas, 922 F.Supp. 1450, 1479, n. 34 (C.D.Cal.1996). With these standards in mind, this Court turns to defendants’ attack on the Gill Bros. CGL policy and punitive damages claims.

 

Certificate Of Insurance

 

The complaint alleges that the certificate of insurance attached as Exhibit C supports that defendants issued the Gill Bros. CGL policy no. SGL1807105. The Exhibit C certificate of insurance references policy no. SGL1807103. The complaint fails to attach policy no. SGL1807105.

 

Defendants argue the Exhibit C certificate of insurance fails to support that the Gill Bros. CGL policy no. SGL1807105 was issued. Defendants note that a certificate of insurance does not establish policy issuance and point to California Insurance Code section 384(a), which provides:

 

A certificate of insurance or verification of insurance provided as evidence of insurance in lieu of an actual copy of the insurance policy shall contain the following statements or words to the effect of:

 

This certificate or verification of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policies listed herein. Notwithstanding any requirement, term, or condition of any contract or other document with respect to which this certificate or verification of insurance may be issued or may pertain, the insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of the policies.

 

“A certificate of insurance is merely evidence that a policy has been issued. (Ins.Code, § 384.) It is not a contract between the insurer and the certificate holder.” Empire Fire & Marine Ins. Co. v. Bell, 55 Cal.App.4th 1410, 1423, n. 25, 64 Cal.Rptr.2d 749 (1997).

 

Defendants conclude that allegations that the Exhibit C certificate of insurance creates insurance obligations should be stricken.

 

The complaint’s Exhibit C contradicts that Gill Bros. CGL policy no. SGL1807105 was issued. Exhibit C does not give rise to a policy to support plaintiffs’ claims. Plaintiffs offer nothing to evidence issuance of Gill Bros. CGL policy no. SGL1807105, and absence of plaintiffs’ opposition suggests that plaintiffs lack claims arising from issuance of Gill Bros. CGL policy no. SGL1807105. As such, allegations addressing Gill Bros. CGL policy no. SGL1807105 should be stricken.

 

Punitive Damages

 

Defendants argue that the complaint’s punitive damages allegations lack sufficient specificity of defendants’ alleged misconduct to support punitive damages.

 

General Pleading Requirements

 

California Civil Code section 3294 (“section 3294”) provides that in an action “for breach of an obligation not arising from contract,” a plaintiff may seek punitive damages “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ.Code, § 3294(a).

 

“Although the court will apply the substantive law embodied in section 3294, ‘determinations regarding the adequacy of pleadings are governed by the Federal Rules of Civil Procedure.’ ” Jackson v. East Bay Hosp., 980 F.Supp. 1341, 1353 (N.D.Cal.1997).

 

Punitive damages are “available to a party who can plead and prove the facts and circumstances set forth in Civil Code section 3294.” Hilliard v. A.H. Robbins Co., 148 Cal.App.3d 374, 392, 196 Cal.Rptr. 117 (1983). “To support punitive damages, the complaint … must allege ultimate facts of the defendant’s oppression, fraud, or malice.” Cyrus v. Haveson, 65 Cal.App.3d 306, 316-317, 135 Cal.Rptr. 246 (1976). Pleading the language in section 3294 “is not objectionable when sufficient facts are alleged to support the allegation.” Perkins v. Superior Court, 117 Cal.App.3d 1, 6-7, 172 Cal.Rptr. 427 (1981).

 

In G.D. Searle & Co. v. Superior Court, 49 Cal.App.3d 22, 29, 122 Cal.Rptr. 218 (1975), the California Court of Appeal explained punitive damages pleading:

 

When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure…. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice…. When a defendant must produce evidence in defense of an exemplary damage claim; fairness demands that he receive adequate notice of the kind of conduct charged against him. (Citations omitted.)

 

“Allegations that the acts … were ‘arbitrary, capricious, fraudulent, wrongful and unlawful,’ like other adjectival descriptions of such proceedings, constitute mere conclusions of law …” Faulkner v. California Toll Bridge Authority, 40 Cal.2d 317, 329, 253 P.2d 659 (1953); see Letho v. Underground Construction Co., 69 Cal.App.3d 933, 944, 138 Cal.Rptr. 419 (1997) (facts and circumstances of fraud should be set out clearly, concisely, and with sufficient particularity to support punitive damages); Smith v. Superior Court, 10 Cal.App.4th 1033, 1042, 13 Cal.Rptr.2d 133 (1992) (punitive damages claim is insufficient in that it is “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice.”);   Brousseau v. Jarrett, 73 Cal.App.3d 864, 872, 141 Cal.Rptr. 200 (1977) ( “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ within the meaning of section 3294”).

 

Substantive Allegations

 

“Evidence that an insurer has violated its duty of good faith and fair dealing does not thereby establish that it has acted with the requisite malice, oppression or fraud to justify an award of punitive damages.” Mock v. Michigan Millers Mutual Ins. Co., 4 Cal.App.4th 306, 328, 5 Cal.Rptr.2d 594 (1992). Required conduct to award punitive damages for the tortious breach of contract “is of a different dimension” than that required to find bad faith.   Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc., 78 Cal.App.4th 847, 890, 93 Cal.Rptr.2d 364 (2000) (quoting Tomaselli v. Transamerica Ins. Co., 25 Cal.App.4th 1269, 1286, 31 Cal.Rptr.2d 433 (2000)). An insurer’s “inept and negligent handling of a claim” does not support a punitive damages claim. Patrick v. Maryland Casualty Co., 217 Cal.App.3d 1566, 1576, 267 Cal.Rptr. 24 (1990); see Tomaselli v. Transamerica Ins. Co., 25 Cal.App.4th 1269, 1288, 31 Cal.Rptr.2d 433 (1994) (poor claims handling does not warrant need “to punish for the maintenance of evil policies which damage the public in general”).

 

“Under California law, punitive damages are not available for breaches of contract no matter how gross or willful.” Tibbs v. Great American Ins. Co., 755 F.2d 1370, 1375 (9th Cir.1985). “Although a bad faith refusal to defend may constitute a breach of the implied covenant …, bad faith does not necessarily indicate the presence of malice, oppression or fraud.” Tibbs, 755 F.2d at 1375 (citations omitted). “There must be substantial evidence of intent to vex, injure and annoy, a conscious disregard of plaintiff’s rights, before punitive damages may be awarded.” Betts v. Allstate Insurance Co., 154 Cal.App.3d 688, 709, 201 Cal.Rptr. 528, 540 (1984).

 

Insurer actions which are “negligent (failing to follow up information provided by the insured), overzealous (taking an unnecessary deposition under oath of the insured), legally erroneous (relying on an endorsement which was not shown to have been delivered), and callous (failing to communicate)” are not “evil, criminal, recklessly indifferent to the rights of the insured, or with a vexatious intention to injure.” Tomaselli, 25 Cal.App.4th at 1288, 31 Cal.Rptr.2d 433.

 

Punitive damages are never awarded as a matter of right, are disfavored by the law, and should be granted with the greatest of caution and only in the clearest of cases. Henderson v. Security Pacific National Bank, 72 Cal.App.3d 764, 771, 140 Cal.Rptr. 388 (1977).

 

Malice, Oppression Or Fraud

 

Defendants contend that the complaint lacks sufficient allegations of malice, oppression or fraud to impose punitive damages.

 

Section 3294(c) (1)-(3) defines:

 

1. “Malice” as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights and safety of others”;

 

2. “Oppression” as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights”; and

 

3. “Fraud” as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

 

“ ‘Despicable conduct” is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Mock, 4 Cal.App.4th at 331, 5 Cal.Rptr.2d 594. “Such conduct has been described as “[having] the character of outrage frequently associated with crime.’ ” Tomaselli, 25 Cal.App.4th at 1287, 31 Cal.Rptr.2d 433 (quoting Taylor v. Superior Court, 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854 (1979)).

 

Defendants note that the complaint alleges that defendants failed to properly investigate plaintiffs’ claim but fails to provide details “as to how the investigation was improperly conducted or somehow inadequate.” An “insurer’s inept and negligent handling of a claim” does not support imposition of punitive damages. Patrick, 217 Cal.App.3d at 1576, 267 Cal.Rptr. 24.

 

Defendants further fault the complaint’s lack of allegations that defendants acted with intent to “vex, annoy or injure” and lack of “facts showing any purported deceit.” Defendants note the absence of allegations that defendants intentionally concealed or misrepresented material facts. Defendants characterize any alleged misrepresentations as to law which are not actionable “because statements of the law are considered merely opinions and may not be relied upon absent special circumstances not present here.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 940 (9th Cir.2006).

 

Although the bad faith claim includes a list of alleged breaches and claims mishandling issues, the bad faith claim lacks sufficient allegations to support punitive damages. The complaint includes platitudes and a conclusory paragraph which essentially summarizes section 3294 elements. The complaint lacks ultimate facts of defendants’ purported malice, oppression or fraud. The complaint fails to put defendants on notice of alleged wrongdoing to impose punitive damages on them. Plaintiffs fail to oppose striking punitive damages allegations. The complaint fails to allege sufficient acts of malice, oppression or fraud to support punitive damages to warrant striking punitive damages allegations.

 

CONCLUSION AND ORDER

 

For the reasons discussed above, this Court:

 

1. DISMISS Truck from this action;

 

2. DIRECTS the clerk to enter judgment in favor of defendant The American International Group Inc. dba The Truck Insurance Group a division of American International Group Risk Management and against plaintiffs Harninder Gill, Harjinder Gill, Charan Gill, Pakhar Gill, Gurdial Gill, GBTI, Inc. and Gill Bros. Trucking;

 

3. STRIKES from the complaint allegations addressing Gill Bros. CGL policy no. SGL1807105 and including the complaint’s paragraphs 16-19, Exhibit C and all further allegations in connection with Gill Bros. CGL policy no. SGL1807105;

 

4. STRIKES from the complaint punitive damages allegations, including paragraph 39 and the punitive damages prayer at page 9, line 26; and

 

5. ORDERS ICSP, no later than August 10, 2009, to file an answer to the complaint’s remaining allegations.

 

IT IS SO ORDERED.

 

E.D.Cal.,2009.

GBTI, Inc. v. Insurance Co. of Pennsylvania

Slip Copy, 2009 WL 2365409 (E.D.Cal.)

 

END OF DOCUMENT

Florea v. Werner Enterprises, Inc.

United States District Court, D. Montana,

Missoula Division.

Marcel Alexia FLOREA and Iulia Florea, Plaintiffs,

v.

WERNER ENTERPRISES, INC., a Nebraska Corporation, et al., Defendants.

No. CV 08-52-M-DWM-JCL.

 

July 29, 2009.

 

ORDER

 

DONALD W. MOLLOY, District Judge.

 

The Court having reviewed for clear error the Findings and Recommendations of United States Magistrate Judge Jeremiah C. Lynch (Doc. No. 138), and having found no clear error therein,

 

IT IS HEREBY ORDERED that Defendant A & A Express, Inc.’s motion for summary judgment (Doc. No. 95) is DENIED.

 

FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

 

JEREMIAH C. LYNCH, United States Magistrate Judge.

 

Pending before the Court is Defendant A & A Express, Inc.’s Motion for Summary Judgment requesting the Court dismiss all claims advanced against it in this action. For the reasons stated below the Court deems it appropriate to recommend that the motion be denied.

 

I. BACKGROUND

 

This action arises from a series of accidents involving multiple vehicles which occurred on February 18, 2007, near mile marker 39 on Interstate 90 in Mineral County, Montana. Several semi trucks, including one operated by A & A Express (“A & A”), were involved in the accident. Plaintiff Marcel Florea was a passenger in one of the semi trucks involved, and he suffered physical injuries in the accident. While the majority of material facts relevant to A & A’s summary judgment motion are not genuinely disputed by the parties, several specific genuine issues of material facts exist which preclude judgment in favor of A & A.

 

A & A’s truck involved in the accident was driven by Richard Renner. Mr. Renner was traveling westbound on I-90 in the dark, early morning hours of February 18, 2007, under extremely icy road conditions. As he approached the location where the accidents subsequently occurred his trailer began sliding on the ice. Mr. Renner stated in his deposition that “[t]he road got real icy [ … ], but I got slowed way down and I couldn’t drive anymore because it was so icy, so I pulled over on the shoulder of the road, [and] put my 4-ways on [.]” Deposition of Richard Renner (December 4, 2008) at 34 (Dkt.# 129-3). Mr. Renner pulled his truck to the right and he stopped it on the emergency lane or shoulder portion of the highway, outside of the right-hand lane or “driving lane” of I-90. A & A’s Statement of Undisputed Facts at ¶ 6. Photographs taken at the scene of the accidents accurately depict the relative location of Mr. Renner’s truck where it stopped on the emergency lane of I-90. See Dkt. # 118-5 page 2 of 3, and # 118-6 page 3 of 3. Thus, Mr. Renner successfully stopped his truck on the emergency lane of I-90 without colliding with any other vehicle.

 

The location where Mr. Renner stopped his truck was midway through a portion of the westbound lane of I-90 which curves to the right. His truck was parked on the inside of the curve. The layout of that particular curve is such that the westbound traffic travels into the curve going downhill, and travels out of the curve going uphill. Additionally, the curve is “super-elevated” and slopped to the right-the south side of the highway is at a higher elevation than the north side of the highway.

 

Mr. Renner’s truck remained stopped throughout the duration of the events which transpired after he stopped his truck. In his deposition Mr. Renner agreed it was not a good place to stop due to the road conditions at that point on the interstate, but he did not have any choice. Renner Depo. at 98.

 

The first Werner Enterprises truck involved in the accident, driven by Jason Wood, was east of Mr. Renner’s location traveling westbound, and approached Mr. Renner’s truck from the rear. Mr. Renner states his truck was stopped for “just a few minutes”, or maybe “five minutes” when Mr. Wood’s truck or trailer hit Mr. Renner’s trailer. Renner Depo. at 71 (Dkt.# 129-3). Mr. Wood’s truck and trailer made only minimal contact with Mr. Renner’s trailer, and Mr. Wood proceeded past Mr. Renner’s truck to the west on I-90. The tires on Mr. Wood’s truck began spinning, however, and he was unable to climb up the hill to the west of Mr. Renner’s truck, so Mr. Wood pulled his truck to the right on the shoulder or emergency lane of I-90 and stopped.

 

After stopping his truck Mr. Wood got out and walked back to Mr. Renner’s truck to speak with him. The two men visited and walked to the rear of Mr. Renner’s trailer to inspect the damage. The two men then walked back towards the cab of Mr. Renner’s truck.

 

At that time, Schneider National Carrier, Inc.’s (“Schneider”) truck, driven by Vyacheslov Chertov, was traveling westbound on I-90 approaching Mr. Renner’s truck from the rear. Plaintiff Marcel Florea was a passenger in the Schneider truck, and he was asleep in the cab of the truck. While Mr. Wood and Mr. Renner were walking back towards the cab of Mr. Renner’s truck, the Schneider truck crashed into the rear of Mr. Renner’s truck. The Schneider truck’s collision with Mr. Renner’s truck occurred “ten minutes maybe”, or “five to ten minutes” after Mr. Wood’s truck collided with Mr. Renner’s trailer. Renner Depo. at 71-72 (Dkt.# 129-3). Thereafter, additional trucks operated by the other parties to this action collided with the vehicles at the location of Mr. Renner’s, Mr. Wood’s, and Schneider’s trucks.

 

Plaintiffs advance claims against A & A alleging it, as well as the other Defendants, are liable for their negligence with respect to the accidents. Defendants Werner Enterprises, Inc., Airline Transportation Specialists, Inc., and CR England, and Third-Party Defendant Schneider National Carriers, Inc. (collectively referred to hereinafter as “Defendants”) have all asserted cross claims and/or third-party claims against A & A. Defendants allege A & A was negligent in the accident and is liable to them for both their own damages and for indemnity or contribution with respect to Plaintiffs’ claims and damages.

 

II. APPLICABLE LAW

 

A. Summary Judgment

 

Federal Rule of Civil Procedure 56(c) entitles a party to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue of fact is “genuine” if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it may affect the outcome of the case. Id. at 248.

 

“In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997), abrogated on other grounds as noted in Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008).

 

B. Substantive Law of Montana

 

Because jurisdiction over this action is founded upon diversity of citizenship under 28 U.S.C. § 1332, the Court applies the substantive law of Montana, the forum state. Medical Laboratory Mgmt. Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th Cir.2002).

 

III. DISCUSSION

 

Plaintiffs’ claims against the various Defendants are predicated upon their allegedly negligent operation of their trucks. Defendants’ cross claims and the third-party cross-claims are similarly premised on theories of negligence.

 

“Negligence is the failure to use the degree of care that an ordinarily prudent person would have used under the same circumstance.” Barr v. Great Falls International Airport Authority, 2005 MT 36, ¶ 41, 326 Mont. 93, 107 P.3d 471 (2005).

 

To maintain an action in negligence, the plaintiff must prove four essential elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) the breach was the actual and proximate cause of an injury to the plaintiff, and (4) damages resulted.

 

Peterson v. Eichhorn, 2008 MT 250, ¶ 23, 344 Mont. 540, 189 P.3d 615 (2008). Summary judgment dismissing a claim of negligence is appropriate if the party advancing the claim fails to establish one of the four elements. Hagen v. Dow Chemical Co., 261 Mont. 487, 492, 863 P.2d 413, 416 (1993).

 

In moving for summary judgment A & A asserts that there existed no legal duty it owed the other parties at the time of the underlying incident. A & A’s argument is premised upon its conclusion that its operator, Mr. Renner, was legally parked in the emergency lane-completely off the “main-traveled” part of the highway-before it was struck by the Schneider truck. From this premise, A & A argues it cannot, as a matter of law, be found to have owed the other parties a legal duty.

 

Rather, given the fact that Mr. Renner’s truck was parked entirely in the emergency lane, A & A argues each Defendant whose truck collided with Renner’s truck negligently moved out of their respective driving lane in violation of Mont.Code Ann. § 61-8-328(1). A & A asserts it had no duty to anticipate this negligence on the part of the other Defendants, citing Anderson v. Werner Enterprises, Inc., 1998 MT 333, ¶ 37, 292 Mont. 284, 972 P.2d 806 (1998) (“a driver does not have a duty to anticipate injury which comes about only as the result of the negligence of another”). A & A thus concludes that at the time of the underlying incident it owed no legal duty to the other parties.

 

Mont.Code Ann. § 61-8-328(1) states:

 

A vehicle must be operated as nearly as practicable entirely within a single lane and may not be moved from the lane until the operator has first ascertained that the movement can be made with safety.

 

Contrary to A & A’s position there exist genuine issues of material fact as to whether A & A’s operator, Mr. Renner, was negligent in parking his truck in the emergency lane at the time of the underlying incident.

 

A. Stopping or Parking on Highway-Mont. Code Ann. § 61-8-353

 

Montana law limits the circumstances under which a driver can stop or park a vehicle on the highway. Specifically, Mont.Code Ann. § 61-8-353 states, in relevant part, as follows:

 

Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles.

 

Mont.Code Ann. § 61-8-353(1).

 

In opposing A & A’s motion, the other Defendants generally contend that under the conditions which existed at the time of the underlying incident, Renner violated § 61-8-353 by parking his vehicle in the emergency lane at the location he did.

 

A & A makes very cursory arguments asserting that § 61-8-353(1) does not prohibit stopping or parking in the emergency lane, which it also refers to as the “shoulder”. A & A’s argument implicitly suggests that the terms “paved” and “main-traveled” part of the highway as used in § 61-8-353(1) are synonymous. A & A thus argues § 61-8-353(1) only prohibits stopping or parking on the “main-traveled part” of the highway-or in its words, the “driving portion”-not the emergency lane. A & A does not offer any legal analysis as to the proper construction to be afforded § 61-8-353(1) as it applies to the emergency lane. With its argument so limited, A & A concludes its analysis by asserting that the construction of § 61-8-353(1) is “irrelevant” because it was not “practical”, within the contemplation of § 61-8-353(1), for Mr. Renner to stop or park his truck in any other location given the existing conditions. Dkt. # 125, p. 4.

 

A “highway” is defined as “the entire width between the boundary lines of every publicly maintained way when any part of the publicly maintained way is open to the use of the public for purposes of vehicular travel.” Mont.Code Ann. §§ 61-1-101(23) and 61-8-102(2)(g). The term “roadway”, in turn, is defined as “that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder.” Mont.Code Ann. § 61-1-101(60). Without expressly referencing § 61-1-101(60), it appears A & A may be relying upon the definition of “roadway” when it asserts that parking on the “shoulder” of the interstate is not prohibited by § 61-8-353(1). A & A does not present any legal authority that supports this contention.

 

It must be noted that the term “shoulder” as used throughout Montana Code Annotated is not expressly defined. See e.g. Mont.Code Ann. § 61-8-605(1)(b) (pertaining to bicycle use and defining “roadway” as “that portion of a highway improved, designed, or ordinarily used for vehicular travel, including the paved shoulder.”); § 61-8-506(2) (providing that a pedestrian “walking along and upon a highway may walk only on the shoulder, as far as practicable from the edge of the roadway.”); § 60-2-208(1) (referring to the “shoulder” along a federal-aid highway as that portion of the right-of-way that must be seeded with grass). While the Code does not use the term “emergency lane”, the Montana Supreme Court has utilized this term to describe the “parking or emergency lane” on the right hand side of one’s direction of travel on the interstate highway that is “separated from the right driving lane by a solid painted line.” Damjanovich v. Western Fire Ins. Co., 204 Mont. 455, 456, 665 P.2d 1128, 1129 (1983). This Court also uses the term to describe the portion of the highway on which the A & A truck was parked.

 

As a matter of common parlance, the emergency lane is alternatively referred to as the “hard shoulder” and “breakdown lane”. See e.g. Wikipedia, The Free Encyclopedia, Shoulder (road), http:// en.wikipedia.org/wiki/Emergency_lane (accessed May 20, 2009).

 

In construing § 61-8-353(1) the Court must first look to the plain meaning of the words used in the statute. Thiel v. Taurus Drilling Ltd.1980-II, 218 Mont. 201, 205, 710 P.2d 33, 35 (1985). Affording the term “paved” its literal meaning, § 61-8-353(1) would properly be construed to preclude parking a vehicle in the emergency lane whenever it is “practical to stop, park, or so leave such vehicle off” the emergency lane of the highway. A construction which treated the term “paved” synonymously with the term “main-traveled part” would also ignore the accepted meaning of the disjunctive “or” and thereby eliminate the independent significance of the terms intended by the use of the disjunctive.

 

A & A contends it was not “practical” for Mr. Renner to stop or park his truck in any other location, thus making it legal under Mont.Code Ann. § 61-8-353(1) for him to stop his truck in the emergency lane of I-90. Mr. Renner testified in his deposition that I-90 was so icy that he could not drive any further, so he pulled over to the side of I-90. Renner Depo. at 34 (Dkt.# 129-3). Mr. Renner stated he had no choice but to stop his truck at that location.   Id. at 98, 710 P.2d 33.

 

In contrast, the other Defendants contend it was practical for Mr. Renner to continue traveling further west on I-90. In support of their contention, they note that the first Werner Enterprises truck that arrived at the scene continued on past Mr. Renner’s truck for at least a short distance. Deposition of Jason Wood (January 13, 2009) at 88-91 (Dkt.# 129-4).

 

For purposes of applying Mont.Code Ann. § 61-8-353(1), “[w]hat is ‘practical’ in any situation clearly depends upon all of the surrounding facts and circumstances.” Gunnels v. Hoyt, 194 Mont. 265, 272, 633 P.2d 1187, 1192 (1981). This question of fact is for the jury to resolve ( Gunnels, at 272, 633 P.2d at 1192), and cannot be resolved in this summary judgment proceeding. Thus, at this juncture, the Court cannot conclude that Mont.Code Ann. § 61-8-353(1) did not impose a duty on Mr. Renner not to stop on I-90.

 

B. Common Law Duty of Care

 

The “practicality” consideration in Mont.Code Ann. § 61-8-353(1) implicates the general duty of care imposed both as a matter of common law and statutory law under Mont.Code Ann. § 27-1-701. The fundamental issue relative to all these duties is whether it was reasonable and prudent for Mr. Renner to stop or park his truck in that particular location.

 

The common law requires that all individuals and entities must “use the degree of care that an ordinarily prudent person would have used under the same circumstance.” Barr, 2005 MT 36, ¶ 41, 326 Mont. 93, 107 P.3d 471. See also Fisher v. Swift Transportation Co., Inc., 2008 MT 105, ¶ 16, 342 Mont. 335, 181 P.3d 601 (2008). Similarly, Mont.Code Ann. § 27-1-701 states, in part, as follows:

 

Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person[.]

 

The existence of a specific duty applicable in a particular situation “is a question of law to be determined by the court[,]” and “turns primarily on foreseeability.”  Fisher, at ¶ 17 (quoting Eklund v. Trost, 2006 MT 333, ¶ 40, 335 Mont. 112, 151 P.3d 870 (2006)). Thus, the court must “ask ‘whether the defendant could have reasonably foreseen that his or her conduct could have resulted in any injury to the plaintiff.’ “ Fisher, at ¶ 21 (quoting Hinkle v. Shepherd School Dist. # 37, 2004 MT 175, ¶ 30, 322 Mont. 80, 93 P.3d 1239 (2004)). “A plaintiff is a foreseeable plaintiff if she or he is within the ‘foreseeable zone of risk’ created by the defendant’s negligent act.” Fisher, at ¶ 21.

 

The issue of whether a legal duty exists is a question of law for the court’s determination on summary judgment. Jackson v. State of Montana, 1998 MT 46, ¶ 31, 287 Mont. 473, 956 P.2d 35 (1998).

 

With respect to interstate highway drivers, one who fails to act in a reasonable and prudent manner can “easily foresee that other people on the highway might be hurt as a result of his negligence.” Fisher, at ¶ 23. “The zone of risk created by a negligent driver necessarily includes other drivers and passengers in his immediate vicinity.” Id.

 

Both the common law and § 27-1-701 subjected Mr. Renner to a basic duty of care with respect to the location at which he stopped and parked his truck. Mr. Renner stopped his truck at the bottom of a hill on I-90, to the right-hand side of the interstate, and on the inside of a curve where the surface of the interstate was sloped to the right. In essence, Mr. Renner’s truck was located at the bottom of a funnel where the direction of all sloping and icy surfaces led to the location he parked his truck. A reasonably prudent person in Mr. Renner’s position could foresee that all other drivers and passengers in his immediate vicinity were within a zone of danger created by the risk imposed by virtue of the location of his truck.

 

The Court’s determination of whether a duty exists also depends “upon a weighing of policy considerations for and against the imposition of liability.” Jackson v. State of Montana, 1998 MT 46, ¶ 38, 287 Mont. 473, 956 P.2d 35 (1998) (quoting Singleton v. L.P. Anderson Supply Co., Inc., 284 Mont. 40, 44, 943 P.2d 968, 971 (1997)). The policy considerations the court must consider are as follows:

 

(1) the moral blame attached to a defendant’s conduct; (2) the prevention of future harm; (3) the extent of the burden placed on the defendant; (4) the consequences to the public of imposing such a duty; and (5) the availability and cost of insurance for the risk involved.

 

Fisher, at ¶ 28 (quoting Prindel v. Ravalli County, 2006 MT 62, ¶ 37, 331 Mont. 338, 133 P.3d 165 (2006)).

 

The Court concludes the foregoing considerations weigh in favor of imposing a common law duty on A & A under the circumstances of this case. Although the moral blame attached to A & A and Mr. Renner for the location of Mr. Renner’s truck is minimal, the imposition of a duty to act in a reasonable and prudent manner would serve to prevent future harm in circumstances similar to those present in this case. The common law duty to use the degree of care that an ordinarily prudent person would have used under the same circumstance, i.e. to avoid placing the A & A truck in that particular location or to avoid placing yourself or your vehicle in those particular circumstances on an icy interstate, does not impose an undue burden on A & A or any other driver. Even if the duty means a driver should avoid driving on an extremely icy interstate under road conditions such as those that the parties experienced in this case, and trucking companies are temporarily unable to continue transporting goods on a particular interstate highway, then the consequences to the public are almost non-existent.

 

C. Warning Devices Required by 49 C.F.R. § 392.22

 

The Defendants also argue that the Federal Motor Carrier Safety Regulations required Mr. Renner and A & A to set out warning devices on the interstate at the location Mr. Renner stopped his truck. Those federal regulations require, in part, as follows:

 

 

[W]henever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by § 393.95 of this subchapter,

 

49 C.F.R. § 392.22(b)(1). A & A does not dispute that this regulation applied to the circumstances of this case and Mr. Renner’s parked truck, but it argues it did not have sufficient time to comply with the regulation’s requirements.

 

Mr. Renner’s own deposition testimony raises a genuine issue of material fact as to whether 10 minutes or more went by after stopping his truck and before Marcel Florea in the Schneider truck collided with Mr. Renner’s truck. Mr. Renner stated his truck was stopped for “just a few minutes”, or maybe “five minutes” by the time Mr. Wood’s trailer hit Mr. Renner’s trailer. Renner Depo. at 71 (Dkt.# 129-3). Then, Mr. Renner stated that the Schneider truck collided with Mr. Renner’s truck “ten minutes maybe”, or “five to ten minutes” after Mr. Wood’s truck collided with Mr. Renner’s trailer. Renner Depo. at 71-72 (Dkt. # 129-3). Therefore, by Mr. Renner’s own testimony, it is possible that as many as 15 minutes elapsed from the time he stopped his truck to the time the Schneider truck ran into the rear of his truck.

 

It is undisputed that Mr. Renner never did set out the required warning devices. He stated he was going to put them out, but he did not have a chance to do so. Renner Depo. at 34.

 

A & A suggests Mr. Renner simply did not have enough time to set out the warning devices before the first collision occurred. It contends its compliance with the regulation was not possible because Mr. Wood’s truck collided with Mr. Renner’s truck less than five minutes after Mr. Renner stopped his truck.

 

A & A’s argument regard the timing of the first collision with Mr. Wood’s truck, however, is unavailing because it does not negate the requirements imposed by the regulation. The fact that the first collision occurred less than 5 minutes after Mr. Renner stopped his truck did not relieve Mr. Renner from the requirement to put out the warning devices within 10 minutes after stopping.

 

Also, Mr. Wood’s collision did not physically prevent Mr. Renner from putting out the warning devices. At least some of the warning devices were to be placed east of, and to the rear of Mr. Renner’s truck in the direction of approaching traffic. 49 C.F.R. § 392.22(b)(1)(i) & (ii). Mr. Wood’s truck stopped to the west of Mr. Renner’s truck, opposite the direction of approaching traffic, and did not prevent Mr. Renner from complying with the regulation.

 

Finally, Marcel Florea and the Schneider truck did not arrive at the location of Mr. Renner’s truck until as much as 15 minutes later. Thus, Mr. Renner had sufficient time to comply with 49 C.F.R. § 392.22(b)(1) by the time the Schneider truck collided with Mr. Renner’s truck. Instead, Mr. Renner spent his time visiting with Mr. Wood and inspecting the damage to Mr. Renner’s trailer.

 

As the foregoing discussion reflects, there exists a genuine issue of material fact whether or not Mr. Renner complied with 49 C.F.R. § 392.22 which precludes summary judgment in favor of A & A.

 

IV. CONCLUSION

 

A & A’s Motion for Summary Judgment seeking to establish that it was not subject to any legal duties under the circumstances of this case fails as a matter of law. At a minimum, A & A’s conduct in this case is governed by the common law reasonable and prudent person standard under common law, the duties under Mont.Code Ann. §§ 27-1-701 and 61-8-353(1), and the requirements of 49 C.F.R. § 392 .22(b)(1). Accordingly, IT IS HEREBY RECOMMENDED that A & A’s Motion for Summary Judgment be DENIED.

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