United States District Court,

N.D. California.

CGU INTERNATIONAL INSURANCE, PLC, a foreign corporation, Plaintiff,

v.

KEYSTONE LINES CORP., Defendant.

May 5, 2004.

FINDINGS OF FACT AND LAW

CONTI, J.

I. INTRODUCTION

Plaintiff CGU International Insurance (“CGU”) brings this negligence action against Defendant Keystone Lines Corp. (“Keystone”). Following a full bench trial on the merits, the Court makes the following findings:

Plaintiff is a foreign corporation and the subrogated insurer of Asia United Enterprises, Ltd. (“AUE”). In July of 2000, AUE contracted to sell seven new bottle-labeling machines to Coca Cola Korea Bottling Company Ltd. of Seoul, Korea, for $1,326,202.85. The sale was on an F.O.B. basis from the Port of Oakland. To fulfill the order to Coca Cola Korea, AUE purchased seven new labeling machines from Trine Labeling Systems (“Trine”). AUE’s contract with Trine was F.O.B. from Turlock, California, the location of Trine’s manufacturing facilities. AUE selected NewTrans Worldwide (“NewTrans”)as the freight-forwarder to coordinate shipment of the labeling machines. As the anticipated shipment date approached in December of 2000, NewTrans was unable to find a carrier to transport the machines from Trine’s facility in Turlock to the Port of Oakland. On Trine’s recommendation, NewTrans contacted Alex Abbley, an agent for Keystone, to help locate a carrier to move the machines from Turlock to the Port of Oakland. Soon after, Abbley, on Keystone’s behalf, hired Europa Specialized Carriers, Inc. (“Europa”) to pick up the labeling machines from Trine in Turlock and move them to Oakland, where they would be loaded onto a vessel for carriage to Korea.

On January 2, 2001, while in route from Turlock to Oakland, one of Europa’s trucks struck a highway overpass, resulting in complete damage to two of the machines. Pursuant to AUE’s insurance policy with CGU, CGU paid AUE $397,860.83 to cover the two damaged machines. CGU subsequently initiated this action against Keystone, alleging that Keystone was negligent in selecting Europa to transport the machines. [FN1]

FN1. At the outset of trial, various third-party and cross-claims were at issue. Keystone asserted a third-party claim against Europa and its owner, Brian Ahmadzai, seeking indemnification for any liability Keystone may have to CGU. Keystone also sought an accounting against Europa, Ahmadzai, and Washington Mutual Bank, FA (“Washington Mutual”) for $99,000 that Ahmadzai received pursuant to its own cargo insurance. Ahmadzai and Keystone jointly held that policy, but Ahmadzai unilaterally deposited the entire $99,000 into a personal account with Washington Mutual. Washington Mutual filed a cross-claim against Europa and Ahmadzai seeking indemnification for any potential liability to Keystone. Ahmadzai also brought a third-party counterclaim against Keystone on the basis that Keystone improperly froze his bank account, resulting in a loss of business. During trial, Keystone, Europa, Ahmadzai and Washington Mutual reached an agreement by which the parties voluntarily dismissed all of their claims against one another.

II. DISCUSSION

A. Carrier versus Broker

The first issue for the Court to resolve is whether Keystone qualifies as a carrier or broker under the Carmack Amendment, 49 U.S .C. § 14706 et seq. The Carmack Amendment, a federal law governing liability for loss, damage, or injury to property transported in interstate commerce, preempts state regulation of carrier liability.Adams Express Co. v. Croninger, 226 U.S. 491, 505, 33 S.Ct. 148, 57 L.Ed. 314 (1913); Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F.3d 1190, 1196 (9th Cir.1999). Carmack governs carriers but not brokers. 49 U.S.C. § 14706(a). Therefore, if Keystone qualifies as a carrier as defined by Carmack, then CGU’s state-law cause of action is preempted. See Adams Express, 226 U.S. at 505-06.

Section 13102 defines a broker as:

“a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C § 13102(2).

The Code of Federal Regulations adds:

“motor carriers, or persons who are employees or bona fide agents of carriers, are not brokers within the meaning of this section when they arrange or offer to arrange the transportation of shipments which they are authorized to transport and which they have accepted and legally bound themselves to transport.” 49 C.F.R. § 371.2(a).

By contrast, a carrier is “a person providing … transportation for compensation.” 49 U.S.C. § 13102(12). The difference between a carrier and a broker is often blurry. The crucial distinction is whether the party legally binds itself to transport, in which case it is considered a carrier. See 49 C.F.R. § 371.2(a). That is, if Keystone accepted responsibility for ensuring delivery of the goods, regardless of who actually transported them, then Keystone qualifies as a carrier. If however Keystone merely agreed to locate and hire a third party to transport the machines, then it was acting as a broker.

We find that Keystone was a broker in this transaction. Abbley worked as an agent for Keystone’s brokerage division. There was never an understanding that Keystone assumed responsibility for shipment of the labeling machines from Turlock to Oakland. NewTrans contacted Keystone (on Trine’s suggestion) because NewTrans was unable to locate a carrier and such was Abbley’s speciality. Abbley testified that he was to receive the standard seven percent brokerage commission (as a percentage of the freight charge) for his services. Also, Keystone never took physical possession of the machines. Further evidencing Keystone’s role as a broker is the trip contract it entered into with Europa in which Keystone designated itself as the broker and Europa as the carrier. For these reasons, Keystone was merely a conduit between AUE and Europa and therefore qualifies as a broker under Carmack. Therefore, Plaintiff’s negligence claim is viable.

B. Negligence

The sole issue in this case is whether Keystone was negligent in the selection of Europa as a carrier. To establish negligence, CGU must prove that (1) Keystone owed a duty to AUE, (2) Keystone breached such a duty, (3) a causal connection exists between said breach and AUE’s injury, and (4) AUE suffered actual damages. Ileto v. Glock, Inc., 349 F.3d 1191, 1203 (9th Cir.2003). CGU claims that Keystone, as the broker, had a duty to AUE as the owner of goods to hire a competent carrier. Keystone allegedly breached its duty by not adequately investigating Europa’s qualifications before selecting it as the carrier, resulting in AUE’s eventual loss when Europa’s truck crashed into the overpass.

There is no dispute as to CGU’s standing as AUE’s subrogated insurer to seek recompense for the loss which AUE sustained. While CGU and Keystone dispute the proper measure of damages, they agree that AUE did in fact suffer monetary damages as a result of Europa’s accident. Keystone does not contest the duty that it owed to AUE despite the absence of any contractual privity between them. Cf. Ochs v. PacifiCare of California, 115 Cal.App.4th 782, 9 Cal.Rptr.3d 734, 744 (2002) (recognizing duty between parties not in contractual privity with each other). Thus questions regarding duty and harm are not at issue, and the Court need only address breach and causation.

The applicable standard of care in this case is the ordinary and reasonable prudent person standard. See USAir Inc. v. United States Dept. of Navy, 14 F.3d 1410, 1412 (9th Cir.1994); Ramirez v. Plough, Inc., 6 Ca.4th 539, 546 (1993). Keystone’s actions must constitute a departure from the expected behavior of an ordinarily prudent person in the same circumstances to constitute a breach of its duty to AUE. Id. CGU claims that Keystone’s failure to investigate Europa’s safety record and the driving history of its employees constitutes the breach. Also, CGU argues that the appropriate standard of care required Keystone to check the route which Europa was to follow from Turlock to Oakland. According to CGU, Keystone was under a tight deadline to hire a carrier. Consequently, it hastily and carelessly selected Europa to transport the labeling machines, neglecting important steps in the process to verify Europa’s competence. Had Keystone bothered to investigate Europa more thoroughly, it would have determined that Europa was not competent to serve as the carrier and hired another company, thereby avoiding the accident and resulting damages.

After careful consideration of the evidence presented, the Court finds that Plaintiff’s contention is untenable. The admissible facts undoubtedly refute CGU’s allegation that Keystone failed to abide by a standard of care commensurate with an ordinarily prudent person. Alex Abbley testified that Keystone’s standard procedure for qualifying a potential carrier entailed verifying the carrier’s transportation licenses and insurance status. Before selecting Europa, Abbley indeed determined that Europa had valid state and federal carriers’ licenses. Additionally, Abbley ascertained that Europa possessed both cargo and liability insurance. A carrier’s status regarding licensing and insurance reflects on its safety history and driving record. Any blemishes regarding Europa’s accident history would have appeared on its insurance and licensing information. Therefore, Abbley’s having verified that Europa was duly licensed and possessed adequate insurance foreclosed any possible need to separately inquire about Europa’s drivers and accident history. Furthermore, within a month or two prior to hiring Europa for the Trine shipment, Abbley visited the Europa facility in order to get a feel for the company’s operations. In explaining that such visits to carrier’s headquarters were extremely rare, Abbley testified that the size, organization, and equipment at the Europa facility convinced him of its competence as a carrier. Notwithstanding his impressions of Europa following this visit, Abbley still proceeded through the standard verification process before hiring Europa for the Trine shipment. Accordingly, we find that Keystone did not breach any duty owed to AUE in selecting Europa to serve as the carrier.

III. $99,000

As part of its agreement to be the carrier, Europa named Keystone as an additional beneficiary of its $100,000 cargo insurance policy. Following the accident at issue, Europa received a check for $99,000 [FN2] from its own insurance company, a non-party to this litigation. That check was made payable to Europa, Keystone and AUE. Brain Ahmadzai, sole owner of Europa, attempted to forward the $99,000 to AUE, but AUE apparently refused to accept the money as it had already been fully reimbursed by CGU for its loss. At that point, Ahmadzai deposited the check into his own account at Washington Mutual Bank and proceeded to spend approximately $77,000 for personal use; only $22,000 remains. [FN3] Washington Mutual Bank currently possesses the $22,000, having frozen Ahmadzai’s account pending resolution of this litigation. Though all parties–CGU, Keystone, Europa and Washington Mutual Bank–agree that the $99,000 properly belongs to CGU, CGU has not yet initiated an action to recover these funds. The only claim active at this time involves Keystone’s alleged negligence. Therefore, the balance of Ahmadzai’s account with Washington Mutual Bank shall be deposited with the Court subject to future litigation.

FN2. The $99,000 represents the face value of the policy minus a $1,000 deductible.

FN3. Ahmadzai claims that he only spent approximately $68,000 and that the remaining $31,000 is held by various parties. The precise trail of money is irrelevant to this Order. Only the amount remaining with Washington Mutual is of concern.

IV. CONCLUSION

CGU has failed to establish that Keystone acted negligently in hiring Europa to transport the labeling machines. Accordingly, Plaintiff’s claim is HEREBY ADJUDICATED in favor of Defendant. Furthermore, it is HEREBY ORDERED that the full balance of Ahmadzai’s account with Washington Mutual Bank, approximately $22,000, BE INTERPLED pending future resolution of proper ownership of such funds.

IT IS SO ORDERED.

NOTICE: THIS OPINION IS DESIGNATED AS UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINN. ST. SEC. 480A.08(3).

Court of Appeals of Minnesota.

GREAT WEST CASUALTY COMPANY, Appellant (A03-1609), Respondent (A03-1835),

v.

CAROLINA CASUALTY INSURANCE COMPANY, Respondent (A03-1609), Appellant (A03-

1835),

Select Transportation, Inc., d/b/a MM Trucking, Respondent,

Shawn Everhardt, Respondent,

Carrielee Perez, trustee and next of kin of Kevin Vance, Respondent,

Mad Dog Trucking, Inc., Respondent,

Northland Insurance Company, Respondent.

May 4, 2004.

UNPUBLISHED OPINION

MINGE, Judge.

This proceeding consolidates related appeals from a summary judgment holding trucking firms and their insurers liable in a wrongful death action. We consider challenges to the determinations that respondent Everhardt and the insurer of his truck, Great Western Casualty Company, are primarily liable and that other insurers and trucking firms are liable for excess damages. Because there are genuine issues of material fact and because there is no evidence to support a finding of liability as to one of the trucking firms and its insurer, we reverse the entry of summary judgment and remand.

FACTS

Respondent Shawn Everhardt drives and owns his own truck. In July 2001, he was seeking work and talked to Mahna Dauer, the vice president and co-owner of respondent Mad Dog Trucking, Inc. (Mad Dog). Mad Dog had leased two of its trucks with drivers to Select Transportation, Inc. (Select) to haul concrete panels on a job for Murphy Rigging & Erecting (Murphy Rigging) in south Minneapolis. Dauer told Everhardt that Select might be looking for another truck and driver on the Murphy Rigging job. Dauer called Select and spoke with its president, Mark Christenson, about Everhardt’s availability to work for Murphy Rigging. Christenson allegedly told Dauer to send Everhardt to Select’s office to fill out an application. While Everhardt did not go to Select’s office, Mad Dog had copies of some of Select’s contract documents, which Dauer gave to Everhardt and helped him complete. However, none of these documents were signed by Select.

On August 7, 8, and 13, 2001, Everhardt drove his truck tractor to the Murphy Rigging job site and began hauling loads for Select even though he did not have a signed agreement or any of the required placards on his vehicle indicating that he was driving for or leased to Select. Select’s representative at the job site was Jeremiah Mitchell, an independent owner/operator who acted as liaison at the job site between Select and the various drivers. On the days that Everhardt hauled loads, he filled out job tickets and gave these tickets to Mitchell. Select processed the job tickets and sent invoices to Murphy Rigging for payment.

When Everhardt arrived at the site on August 14, Mitchell told him that he was not needed that day, that there had been a complaint that he did not have Select placards on his truck, and that he should obtain placards. Select alleged that its officers and managers had not realized that Everhardt had been working at the site, and when it learned he was there, it instructed Mitchell that Everhardt could not drive until he had completed all required paperwork and obtained placards. In fact, Mitchell and the Mad Dog drivers had completed Select’s application process, which included drug testing, background checks, reference checks, and vehicle inspections.

Upon learning that he could not drive his truck on the Murphy Rigging job on August 14, Everhardt apparently decided that he would use the day to repair his truck, obtain Select placards, and complete Select’s paperwork. This required that he travel to Rogers, on the northwest edge of the Twin Cities metropolitan area. After first moving a trailer at the job site at the request of Mitchell, Everhardt drove his truck without any trailer (bobtailing) from the Murphy Rigging site in south Minneapolis to a repairs/parts shop in St. Paul. Since the shop was not yet open when he arrived, Everhardt decided to purchase fuel at a nearby service station before returning to the highway. En route to the service station, his truck struck and killed Kevin Vance.

Vance’s mother, Carrielee Perez, brought a wrongful death action against Everhardt, Select and Mad Dog. Everhardt’s insurance company, Great West Casualty Company (Great West), in turn brought a declaratory judgment action to determine whether its non-trucking use policy provided coverage, or whether coverage existed under Select’s policy with Carolina Casualty Insurance (Carolina) or Mad Dog’s policy with Northland Insurance (Northland).

Perez, Select, Great West, Northland, and Carolina brought cross-motions for summary judgment. In April 2003, the district court granted Perez’s motion, denied summary judgment for all other parties, and found Great West primarily liable and Carolina and Northland liable for the excess damages. Great West appealed the decision in May 2003. In June 2003, this court remanded the appeal for a final judgment on the amount of coverage available under the Carolina and Northland policies. In September 2003, the district court assigned primary liability coverage to Great West in the amount of $1 million, excess liability coverage to Carolina in the amount of $1 million, and excess liability coverage to Northland in the amount of $750,000. This appeal followed.

DECISION

On review of summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). On appeal, we view the evidence in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). We will “not resolve or decide issues of fact but only determine whether there are issues of fact to be tried.” Jonathan v. Kvaal, 403 N .W.2d 256, 259 (Minn.App.1987), review denied (Minn. May 20, 1987). Where there is any doubt as to the existence of a genuine issue of material fact, we must resolve such doubt in favor of finding that a fact issue exists. Poplinski v. Gislason, 397 N.W.2d 412, 414 (Minn.App.1986), review denied (Minn. Feb. 18, 1987).

I.

The first issue is whether the district court erred in granting summary judgment in favor of Perez and imposing primary liability on Everhardt’s insurer, Great West, when it found that an exclusionary clause in Great West’s policy was ambiguous. Construction of an insurance policy is a question of law. Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn.1978). When the facts are not in dispute, the appellate court independently reviews the district court’s interpretation of the insurance contract. Nat’l City Bank of Minneapolis v. St. Paul Fire & Marine Ins. Co., 447 N.W.2d 171, 175 (Minn.1989).

An appellate court will construe exclusions from coverage narrowly against the insurer. Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn.2001). The burden of proving that the policy exclusion bars coverage rests on the insurance company. Illinois Farmers Ins. Co. v. Duffy, 618 N.W.2d 613, 615 (Minn.App.2000). If the language of the insurance policy is unambiguous, the court must give the language its ordinary meaning. Nat’l Farmers Union Prop. & Cas. Co. v. Anderson, 372 N.W.2d 71, 74 (Minn.App.1985). But, if the policy is ambiguous, the ambiguity must be resolved in favor of the insured. Columbia Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 36 (Minn .1979). “In construing an insurance contract, the policy must be considered as a whole.” Am. Hoist & Derrick Co. v. Employers’ of Wausau, 454 N.W.2d 462, 466 (Minn.App.1990), review denied (Minn. June 26, 1990). A reviewing court must not read an ambiguity into plain language. Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn.1997).

The relevant language of the exclusionary clause at issue in Great West’s non-trucking use policy reads:

15. Trucking Operations

This insurance does not apply to:

a. A covered “auto” while used to carry property in any business; or

b. A covered “auto” while used in the business of anyone to whom the “auto” is rented, leased or loaned. [FN1]

FN1. “Auto” is a term of art in the policy and includes trucks.

The district court found that the language “in the business of” was ambiguous and should therefore be resolved in favor of coverage for Everhardt. The court also found that it was unclear whether Everhardt was furthering Select’s business interests or personal activities at the time of the accident.

We have previously held that the phrase “in the business of” in a similar Great West policy was not ambiguous.Steele v. Great W. Cas. Co., 540 N.W.2d 886, 889-90 (Minn.App.1995), review denied (Minn. Feb. 9, 1996). In Steele, we stated that “[a]mbiguity does not arise merely because a policy must be read with some care.” Id. Ultimately, in Steele we declined to find an ambiguity in the policy and noted that the repeated mention of “non-trucking use” in the text of the policy and a definition that equated “trucker” with business use enabled this court to determine whether Great West’s policy applied. Id. at 890. Since the policy before us contains the same language, phrases, and definitions, we find that the plain language of this policy does not present a patent ambiguity.

The question then becomes whether the phrase “in the business of” in the Great West policy presents a latent as opposed to patent ambiguity. A latent ambiguity is one that arises where the defect

does not appear on the face of language used or an instrument being considered. It arises when language is clear and intelligible and suggests but a single meaning, but some extrinsic fact or some extraneous evidence creates a necessity for interpretation or a choice between two or more possible meanings.

Black’s Law Dictionary 883 (6th ed.1990). Here, the phrase “in the business of” is susceptible to at least two possible interpretations. These are that (1) the phrase is limited to hauling a load for one who has leased the truck (auto); or (2) the phrase includes undertaking any activities that ultimately benefit the lessee.

What is troubling here is that the applicability of paragraph 15(b) of Great West’s policy and the determination of whether its language is ambiguous are dependent on a series of factual determinations that are disputed. There may be a latent ambiguity or no ambiguity over whether Everhardt was acting “in the business of” Select at the time of the accident. To decide, one must resolve disputed evidence and determine the relationship between Everhardt and Select. This includes determining what Select knew regarding Everhardt’s work at the job site, and the nature of Select’s instructions to Mitchell regarding Everhardt on the morning of the accident. After reviewing the record and the arguments on appeal, it is evident that there are numerous genuine issues of material fact, the resolution of which is necessary to deciding this issue. Accordingly, summary judgment was not appropriate.

II.

The next issue is whether the district court erred in finding that an implied lease existed between Select and Everhardt. To determine whether an implied agreement exists, courts look to the conduct and acts of the parties.Northland Ins. Co. v. Bennett, 533 N.W.2d 867, 872 (Minn.App.1995). In Northland, this court found that an implied truck lease agreement existed by examining the totality of the contacts between the parties. Id. We noted that the trucking company had represented to the Department of Transportation that the driver would be operating under its authority and had certified that the driver’s vehicle would abide by safety and inspection laws. Id. at 873. Additionally, the company had paid the driver’s registration fee and tariffs, and had given the driver various certification forms indicating its authority over the driver. Id.

Here, to support its finding that an implied lease exists, the district court found that

failure to complete the application process does not bar recovery under [Select’s] insurance policy. Shawn Everhardt had worked three days for Select on the Murphy Rigging site, had filled out job tickets that Select used to bill Murphy Rigging for the work [Everhardt] performed, and [Everhardt] was on his way to their office at the time of the accident at their direction.

The record, however, indicates that the level and nature of the contacts between Select and Everhardt is highly disputed. While no one disputes that Everhardt actually worked on the Murphy Rigging site for three days, the deposition by Select president Mark Christensen indicates that Select had no knowledge of his presence, whereas the deposition of Jeremiah Mitchell indicates that Select did have knowledge. There is also conflicting evidence whether Select directed Everhardt to travel to its offices or whether Mitchell was to merely tell Everhardt that he could no longer work at the Murphy Rigging site, and Everhardt, on his own initiative, began driving to Select’s offices. Further, it is also unclear what was said to Christensen by Dauer of Mad Dog regarding Everhardt, whether Christensen even knew Everhardt’s name, and whether Select ever received a copy of the operating agreement Everhardt signed.

Utilization of the totality of the contacts test in this instance requires the district court to make conclusions from highly disputed facts concerning the contacts between the parties. This kind of fact finding by the district court is impermissible on a motion for summary judgment. Because the conduct and acts of the parties are material in determining whether an implied lease existed between Select and Everhardt and because these facts here are highly disputed by the parties, we conclude summary judgment was not appropriate.

III.

The final issue is whether the district court erred in finding that an implied lease agreement existed between Everhardt and Mad Dog which exposed Mad Dog and its insurer, respondent Northland, to liability. The district court found an implied lease relationship between Everhardt, Select, and Mad Dog because the co-owner of Mad Dog had arranged for Everhardt to work on the Murphy Rigging site. The court found that Mad Dog had informed Everhardt of the possibility of work with Select, provided and helped Everhardt fill out Select paperwork, and provided Everhardt with job tickets. According to the district court, these facts alone meant that Everhardt was working under the authority of Mad Dog.

The facts concerning Everhardt’s relationship with Mad Dog are not in dispute. The evidence shows that there was no written agreement between Everhardt and Mad Dog and that no agreement was even contemplated. There is no evidence in the record to support the finding that Mad Dog had any authority over Everhardt or the hiring and firing decisions regarding his working for Select, or any control as to the nature of Everhardt’s job duties at the work site. Finally, although Mad Dog had leased two other drivers to Select for the Murphy Rigging site, these drivers went through Select’s formal application and hiring process and were in a position different from Everhardt. There is no evidence that Everhardt would not have had to complete the same application process upon a referral from Mad Dog. Further, the district court made its findings regarding Mad Dog despite other findings that Everhardt was actually under an implied lease agreement with Select and working at the direction and authority of Select at the time of the accident. Given the totality of the contacts test discussed above, the facts cited by the district court are insufficient to support a finding that Everhardt was leased to Mad Dog. Therefore, we reverse the district court’s finding that Mad Dog had authority over Everhardt and its subsequent finding that its insurer, respondent Northland, has any liability under its policy and we remand with instructions to enter summary judgment in favor of Mad Dog and Northland.

Reversed and remanded.