SAUNDRA BROWN ARMSTRONG, United States District Judge.
Before the Court is defendant Rite Aid Corporation’s (Rite Aid) motion for summary judgment [Docket No. 30] or, in the alternative, its motion for summary adjudication. After reading and considering the arguments presented by the parties, the Court finds this matter appropriate for resolution without a hearing. SeeFED. R. CIV . P. 78. For the reasons that follow, Rite Aid’s motion for summary judgment is hereby GRANTED.
This case arises out of a fatal tractor-trailer crash on August 21, 2004, near the top of a mountain pass in Placer County, California. The plaintiffs are the wife and three minor children of the decedent, who at the time of the accident was an employee of Swift Transportation, Inc. (Swift).SeeDocket No. 43 at 1. The defendant is Rite Aid, a nationwide retail drug store chain that contracted with Swift for transportation services. SeeDocket No. 31, ¶ 2; Ex. A, B.
In October of 2002, Rite Aid and Swift entered a written agreement whereby Swift was to provide transport services in exchange for payments issued according to rates and charges outlined in the contract. SeeDocket No. 31, Ex. A, B. The agreement referred to Rite Aid as the “shipper” and Swift as the “carrier,” and stated that “[c]arrier will at all times be an independent contractor of shipper.”Id., Ex. A at 2. However, the vehicles used in the transit services were provided by Rite Aid to Swift. Id., Ex. B at 1.
On the evening of the accident, Swift assigned two of its drivers, Badr Alaubali and Christopher Thomas, to transport a load of Rite Aid goods from Woodland, California, to Denver, Colorado, a distance of about 1185 miles. SeeDocket No. 43 at 3. The plaintiffs allege Thomas was a “driver trainee” who had no experience or training in operating the double-trailer vehicle that the two men attached to the trailer that night. Id. According to a California Highway Patrol report, the accident occurred because the driver was traveling at a high rate of speed and failed to negotiate a turn in the freeway. SeeDocket No. 43, Nissenberg Decl., Ex. 3. At the time of the crash, the decedent, Mr. Alaubali, was asleep in the tractor’s “sleeper cab” and was burned to death. SeeDocket No. 43 at 3.
The plaintiffs have sought and received workers’ compensation death benefits based on the decedent’s employment with Swift. SeeDocket No. 30 at 3. They now seek relief against Rite Aid in federal district court based upon three causes of action: 1) negligence, 2) violation of federal safety regulation 49 C.F.R. § 391.11 and 3) violation of federal safety regulation 49 C.F.R. § 380.113.
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. SeeFED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment must demonstrate that there are no genuine issues of material fact. See Horphag v. Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir.2007). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). An issue is “material” if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248;Rivera, 395 F.3d at 1146.
In responding to a properly supported summary judgment motion, the non-movant cannot merely rely on the pleadings, but must present specific and supported material facts, of significant probative value, to preclude summary judgment. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir.2002); Federal Trade Comm’n v. Gill, 265 F.3d 944, 954 (9th Cir.2001). In determining whether a genuine issue of material fact exists, the court views the evidence and draws inferences in the light most favorable to the non-moving party. See Anderson, 477 U.S. at 255;Sullivan v. U.S. Dep’t of the Navy, 365 F.3d 827, 832 (9th Cir.2004); Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 568 (9th Cir.2004).
A. Negligence
Rite Aid bases its summary judgment motion on the theory that, as a shipper of goods, it owes no duty to the employees of an independent contractor hired for transportation services and therefore cannot be negligent. Rite Aid cites Privette v. Superior Court, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Cal.1993) for the general proposition that “[a]t common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.”Id. at 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.
In her opposition to summary judgment, Alaubali offers no proof that the general rule stated in Privette should not apply. Instead, Alaubali asserts that a partnership or joint venture, rather than an independent contractor relationship, existed between Rite Aid and Swift on the day of the fatal crash. SeeDocket No. 43 at 4. Such a partnership or joint venture, Alaubali argues, would make Rite Aid responsible for Swift’s negligence under general partnership principles and under the reasoning of cases such as Rogness v. English Moss Joint Venturers, 194 Cal.App.3d 190, 191, 239 Cal.Rptr. 387 (Cal.Ct.App.1987) (“an employee of one party in a joint venture is not as a matter of law also an employee of the joint venture itself or the other joint venturers and therefore is not limited to his workers compensation remedy under the Labor Code in seeking recovery from the remaining joint venturers for alleged negligence”).
1. Partnership theory
“Generally, a partnership connotes co-ownership in partnership property, with a sharing in the profits and losses of a continuing business.”Chambers v. Kay, 29 Cal.4th 142, 126 Cal.Rptr.2d 536, 56 P.3d 645, 651 (Cal.2002) (citing Nelson v. Abraham, 29 Cal.2d 745, 177 P.2d 931, 933 (Cal.1947)); Wheeler v. Farmer, 38 Cal. 203, 213 (Cal.1869); Alliance Payment Systems, Inc. v. Walczer, 61 Cal.Rptr.3d 789, 804 (Cal.Ct.App.2007). The existence of a partnership is a question of fact. Persson v. Smart Inventions, Inc., 125 Cal.App.4th 1141, 23 Cal.Rptr.3d 335, 347 (Cal.Ct.App.2005); see Holmes v. Lerner, 74 Cal.App.4th 442, 88 Cal.Rptr.2d 130 (Cal.Ct.App.1999).
To support her assertion of a Swift-Rite Aid partnership agreement, Alaubali relies primarily upon a single document called the “Dedicated Driver Training Guide,” a handbook created by Swift for Swift drivers on the west coast.Docket No. 49, Ex. G at 8. The document refers to the “Swift/Rite Aid Partnership” at various times and in one instance states to Swift drivers: “[Y]ou represent Rite Aid Corporation.”SeeDocket No. 43 at 5. By her own admission, Alaubali concedes that labels affixed to relationships between parties are not determinative of the actual relationship. SeeDocket No. 43 at 4 (citing Martin v. Phillips Petroleum Co., 42 Cal.App.3d 916, 919, 117 Cal.Rptr. 269 (Cal.1974)). Yet the plaintiff asks the Court to consider these snippets in the training guide and to disregard the actual contract between Rite Aid and Swift as determinative of the parties’ relationship. The contract itself makes it clear that “[Swift] will at all times be an independent contractor of [Rite Aid].”Docket No. 31, Ex. A at 2.
Aside from these scattered phrases in the driver’s training guide, Alaubali provides no evidence of a partnership arrangement between Rite Aid and Swift. There is no proof of any “sharing in the profits and losses of a continuing business.”Chambers, 126 Cal.Rptr.2d 536, 56 P.3d at 651. Nor is there any proof of co-ownership in partnership property-in fact the opposite exists. As expressed in the parties’ contract,
If an interchanged trailer is damaged while in [Swift’s] possession, then [Swift] shall repair the trailer so as to place the trailer in the condition in which [Swift] received the trailer, ordinary wear and tear excepted. If [Swift] fails to make such repairs, [Rite Aid] shall makes said repairs and invoice [Swift].
Docket No. 31, Ex. B at 3. Such language suggests a desire by each party to keep its property separate from the other. Since Alaubali fails to raise a material issue of fact in dispute as to whether Rite Aid and Swift were engaged in a partnership rather than an independent contractor arrangement, there is no proof Rite Aid owed the plaintiff a duty that was breached, and therefore her negligence claims fail under this theory.
Additionally, California law prohibits third-party negligence claims in the context of the independent contractor relationship not only because workers’ compensation statutes adequately address work-related injuries such as the one in this case, but also because “the principal who hires an independent contractor should be subject to no greater liability than its [independent contractor] agent, whose exposure for injury to an employee is limited to providing workers’ compensation insurance.”Privette, 5 Cal.4th at 699, 21 Cal.Rptr.2d 72, 854 P.2d 721 (citing Olson v. Kilstofte & Vosejpka, Inc., 327 F.Supp. 583, 587 (D.C.Minn.1971); see also Camargo v. Tjaarda Dairy, 25 Cal.4th 1235, 1245, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (Cal.2001) (denying liability under a “negligent hiring” theory). Since Alaubali raises no genuine issue of material fact regarding her negligence action under a partnership theory, Rite Aid is entitled to summary judgment on this claim.
There is no dispute that Alaubali is currently receiving workers’ compensation death benefits of approximately $4,000 per month. SeeDocket No. 34, Ex. E at 139.
2. Negligent entrustment
Even if Alaubali could establish some type of duty owed to the decedent by Rite Aid, her claim based on the theory of negligent entrustment fails. In California, the elements of negligent entrustment are 1) the driver was negligent in operating the vehicle, 2) the defendant was the owner of the vehicle, 3) the defendant knew or should have known the driver was incompetent or unfit to drive the vehicle, 4) the defendant permitted the driver to use the vehicle and 5) the driver’s incompetence was a substantial factor in causing harm to the plaintiff. Jeld-Wen, Inc. v. Superior Court, 131 Cal.App.4th 853, 32 Cal.Rptr.3d 351, 358 (Cal.Ct.App.2005) (citing CACI JURY INSTRUCTION NO. 724); National Union Fire Ins. Co. v. Showa Shipping Co., Ltd., 166 F.3d 343 (9th Cir.1999).
In the present case, Alaubali offers no evidence that Rite Aid had any control over who drove the trailers, or that it otherwise permitted Thomas to drive the vehicle. Rite Aid entrusted all control of transport duties to Swift, an established nationwide carrier with one of the largest fleets in the United States. SeeDocket No. 33, ¶ 1. Swift alone chose its drivers and the route they were to take for deliveries. SeeDocket No. 31, ¶ 8. Since Rite Aid played no part in appointing Thomas as a driver, Alaubali cannot establish the elements of negligent entrustment and Rite Aid is entitled to summary judgment under this theory.
SeeDocket No. 31, Ex. A at 2.
3. Negligent selection of an independent contractor
Although not mentioned in her initial complaint, Alaubali asserts in her summary judgment opposition an alternative theory of liability known as “negligent selection of an independent contractor.”Docket No. 43 at 15.Under this theory, Alaubali argues Rite Aid had a duty to investigate the reputation of the independent contractor it hired because
[I]f the work is such as will be highly dangerous unless properly done and is of a sort which requires peculiar competence and skill for its successful accomplishment, one who employs a contractor to do such work may well be required to go to considerable pains to investigate the reputation of the contractor and, if the work is peculiarly dangerous unless carefully done, to go further and ascertain the contractor’s actual competence.
L.B. Foster Co. v. Hurnblad, 418 F.2d 727, 731-32 (9th Cir.1969) (quoting RESTATEMENT (SECOND) OF TORTS, COMMENT C AT 379 (1965)).
Even if Rite Aid had a duty to investigate Swift’s competency similar to the obligation outlined in Foster, Alaubali does not dispute that Swift, as an established, licensed commercial motorcarrier with one of the largest truck fleets in the United States, is a competent hauler. Nor does the plaintiff argue that Rite Aid was negligent in choosing Swift to haul its goods. These facts alone entitle Rite Aid to summary judgment under this theory of negligence, despite Alaubali’s untenable and unsupported view that Rite Aid should have inquired into the competency of all of Swift’s drivers. SeeDocket No. 43 at 17.
Docket No. 33, ¶ 1.
The Foster case, the only source upon which Alaubali relies for her alternative negligence claim, is distinguishable from the present case. The Foster decision came in the context of reviewing a jury verdict in which numerous findings of fact shed light on the “fly-by-night” character of the transportation company. Id. at 730.None of the facts relevant in that case, such as the short time the company had existed or its lack of government authorization for interstate hauling, is present here. The contract between Rite Aid and Swift actually requires the carrier to “comply with all laws and regulations applicable to the Services. Carrier warrants that it has been authorized by the U.S. Department of Transportation to operate as a motorcarrier and that such authority is currently in full force and effect.”SeeDocket No. 31, Ex. A at 1-2. Rather than being a “fly-by-night” company, Swift is one of the largest motorcarriers in the United States and has “a strong reputation in the industry.”Docket No. 33, ¶ 1.
Since the Foster case offers no insight into the present facts, and since Alaubali provides no other support for her negligent independent contractor selection theory, she fails to raise a genuine issue of material fact under this claims and summary judgment should be granted.
4. Negligence under a bailor-bailee theory
Alaubali’s last theory of negligence, which also appears for the first time in her opposition to summary judgment, asserts there exists a bailor-bailee relationship between Rite Aid and the two Swift drivers involved in the crash because Rite Aid supplied its trailers to the drivers. SeeDocket No. 43 at 9. Alaubali refers to the California Civil Code, which states that “[e]veryone is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property….”CAL. CIV.CODE § 1714.
Alaubali’s claim under this theory is meritless because there is no evidence Rite Aid was negligent in supplying its trailers to Swift. It was Swift-not Swift’s individual drivers-that qualifies as the “bailee” in this case because, under the terms of the carrier agreement, Swift assumes full responsibility to “thoroughly inspect the interchanged trailer prior to taking possession and control of the trailer and after taking possession and control of the trailer, [Swift] accepts exclusive responsibility for any loss, damage, or liability resulting from any mechanical defect.”Docket No. 31, Ex. B at 1.
Alaubali cites Johnstone v. Panama Pac. Int. Exposition Co., 187 Cal. 323, 202 P. 34 (Cal.1921), a case in which a concessionaire let an electric wheelchair to an interested patron, who then drove the vehicle into the plaintiff and injured her. Unlike the bailor and bailee in Johnstone, Rite Aid, as bailor, had an extensive contractual arrangement with a bailee nationally recognized for its experience in the business of commercial hauling. SeeDocket No. 33, ¶ 1. Alaubali mischaracterizes Swift’s individual drivers as the bailees in an effort to establish a duty owed by Rite Aid to Swift and the decedent. Because the hauling contract shows Rite Aid supplied its trailers to Swift only, no genuine issue of material fact exists under this theory of negligence.
B. Motorcarrier safety violations
Rite Aid also moves for summary judgment on Alaubali’s claims pursuant to federal motorcarrier safety regulations. Specifically, the plaintiff points to 49 C.F.R. 391.11 and 49 C.F.R. 380.113, two regulations promulgated by the Federal MotorCarrier Safety Administration “to support a safe and efficient transportation system.”49 U.S.C. § 31133. The first regulation states that “[a] person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle …. A motorcarrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.”49 C.F.R. 391.11. The second regulation mandates that “[n]o motorcarrier shall allow, require, permit or authorize an individual to operate a [longer combination vehicle (LCV) ] unless he/she meets the requirements [of the regulations] and has been issued the LCV driver-training certificate….”49 C.F.R. 380.113(a)(1).
Both regulations apply to “motorcarriers.” Alaubali contends Rite Aid is a motorcarrier because, as defined by statute, the term “includes the terms employer and exempt motorcarrier.”49 C.F.R. § 390.5. In the same section, the term “employer” means “any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business.”Id. Rite Aid argues that it is not a motorcarrier subject to the federal regulations because 1) at the time of the collision, Rite Aid was acting as a shipper and not a carrier, 2) Rite Aid operates as a private carrier and not a “for hire” carrier and 3) the federal regulations do not provide a private right of action for personal injuries. SeeDocket No. 30 at 15.For the reasons stated below, Rite Aid has demonstrated that it was acting as a shipper and not a motorcarrier on the day of the fatal crash, and so it is unnecessary to address Rite Aid’s last two arguments.
Alaubali’s attempt to bootstrap Rite Aid into “motorcarrier” status by stretching the statutory definition fails because the definitions of motorcarrier and employer, as used in the regulations, describe precisely the role assumed by Swift in this instance as an independent contractor. Swift was a “for hire” carrier responsible for transporting Rite Aid’s goods. SeeDocket No. 31, Ex. A at 1. Swift alone selected the drivers it wanted for each job, the types of transportation equipment needed, and the route for each delivery. SeeDocket No. 31, ¶ 8. Not only was Swift contractually granted entire control over the transport operation, but it also accepted “exclusive responsibility for any loss, damage or liability resulting from any mechanical defect that reasonably could have been detected in [Swift’s] inspection of the trailer.”Docket No. 31, Ex. B at 1. It was Swift, not Rite Aid, that assumed responsibility for compliance with “all laws and regulations,” just as Swift warranted it “has been authorized by the U.S. Department of Transportation to operate as a motorcarrier.”Docket No. 31, Ex. A at 1-2. In this instance it is apparent from both the contract, which named Swift as “carrier” and Rite Aid as “shipper,” and the surrounding facts that Swift was the carrier and Rite Aid the shipper.
This control focused particularly on personnel. SeeDocket No. 31, Ex. A at 2.
Alaubali offers no case, statute or legislative history to support her allegation that Rite Aid, as a shipper using an independent contractor to carry its goods from one point to another, is subject to the driver qualification mandates of the Federal MotorCarrier Safety Regulations. Since the statute is inapplicable to a shipper like Rite Aid in this instance, Rite Aid is entitled to summary judgment on Alaubali’s claims under the motorcarrier regulations.
Although the plaintiff cites 49 U.S.C. § 31131 to underscore the broad purposes underlying the MotorCarrier Safety Act of 1984, this statute fails to shed light on any precise definition of the words “employer” or “motorcarrier” in the context of the Federal MotorCarrier Safety Regulations.
C. Rite Aid’s objections to evidence
Rite Aid objects to certain evidence presented by Alaubali with her opposition to summary judgment. SeeDocket No. 45.Since none of the disputed evidence was used in rendering this opinion, Rite Aid’s objections are overruled as moot.
Accordingly, Rite Aid’s motion for summary judgment [Docket No. 30] is GRANTED. Rite Aid’s objections to plaintiff’s evidence [Docket No. 45] are OVERRULED as moot. Rite Aid’s miscellaneous motion pursuant to Local Rule 7-11 [Docket No. 53] is likewise DENIED as moot.
IT IS SO ORDERED.
