Court of Appeals of Georgia.

PN EXPRESS, INC.

v.

ZEGEL et al.

No. A10A0148.

 

June 2, 2010.

 

MIKELL, Judge.

 

PN Express, Inc., appeals from the judgment entered on a jury verdict in the amount of $11,499,740, in favor of William Eastman Zegel, his wife Sonya Thorne-Zegel, and their young daughter, Lillian Thorne Zegel, by her father as next friend and natural guardian, in this personal injury case arising out of an accident involving a commercial tractor-trailer. PN Express challenges the denial of its motion for directed verdict and argues that the trial court erred in instructing the jury on the doctrine of statutory employment, among other enumerated errors. For the reasons set forth below, we affirm.

 

1. A motion for directed verdict “may be granted only when no conflict exists in the evidence and the evidence presented, with all reasonable inferences therefrom, demands a particular verdict.”  On appellate review of the denial of a motion for directed verdict, “we construe the evidence in the light most favorable to the verdict and resolve any doubts or ambiguities in favor of the verdict,”  and “[w]e review the trial court’s denial of a motion for a directed verdict using the ‘any evidence’ standard.”

 

So construed, the record reflects that on May 11, 2007, a loaded tractor-trailer owned and driven by Mile Surlina crashed into the Zegels’ automobile, resulting in severe and permanent injuries to all three occupants. At the time of the crash, Surlina’s tractor-trailer bore the logo and DOT numbers of PN Express, an Illinois-based motor common carrier.

 

PN Express was owned by Nikola Preradovic, and its business was managed by his son-in-law, Dragan Soldat. Although it was undisputed that Surlina was hired by PN Express as a driver, the evidence was conflicting as to the date he had been hired. Surlina testified that Soldat hired him on May 1, 2007, and that Soldat knew that Surlina owned and drove his own truck. Soldat testified, on the other hand, that PN Express did not hire Surlina until May 18, 2007, after the accident at issue had already occurred. Because PN Express was unable to produce the Driver Qualification file it had maintained on Surlina, which would have provided documentary evidence of Surlina’s exact date of hire by PN Express, the trial court charged the jury on spoliation of evidence, which gives rise to a rebuttable presumption that the evidence lost would have been harmful to PN Express. PN Express has not challenged this jury charge on appeal.

 

In addition, Surlina testified that he and Soldat entered into an oral lease agreement between Surlina and PN Express. Soldat gave Surlina PN Express placards containing the PN Express logo and DOT number to place on his truck. Shortly thereafter, Surlina had the PN Express logo and DOT number hand-painted on his truck; and on May 3, 2007, he showed the result to Soldat, who approved. The PN Express logo and DOT numbers were displayed on the truck at the time of the accident on May 11, 2007.

 

In May 2007, a written contract was in effect between PN Express and Patterson Freight Systems, Inc., pursuant to which PN Express, as carrier, agreed to haul freight for Patterson, as broker. The agreement contemplated that Patterson would arrange for transportation of freight for shippers and then broker those shipments to PN Express for hauling. At the time Surlina was hired, Soldat told him that he would be driving for PN Express and for Patterson. At some time before the accident occurred, Soldat advised Ned Stojkovic, a contractor/broker for Patterson, that Surlina was authorized to negotiate and act on behalf of PN Express with respect to shipments brokered by Patterson, including negotiating shipment rates.

 

On May 8 and 9, 2007, Patterson contracted with three different shippers to ship freight from Illinois to Florida. Surlina picked up the loads in his truck, which displayed the PN Express sign, in order to make the deliveries in Florida. The accident occurred while Surlina was en route to Florida with this load. Soldat was aware that Surlina was hauling this load in Surlina’s truck, which bore PN Express’s logo and DOT number; and Soldat was in daily contact with Surlina by cell phone from May 1, 2007, through and after the date of the accident, May 11, 2007.

 

PN Express contends that the trial court erred in denying its motion for directed verdict because the evidence was insufficient to show that an oral lease existed between Surlina, the driver and owner of the truck, and PN Express. However, as noted above, evidence was adduced at trial which authorized the jury to conclude that Surlina and PN Express had entered into an oral lease of Surlina’s truck, based on Surlina’s admission that such a lease was in effect, and on testimony that Surlina’s truck carried the PN Express logo. Further, evidence at trial which showed that Surlina had been hired by PN Express on May 1, 2007, and that Surlina was in constant telephone contact with Soldat, PN Express’s manager, authorized the jury to conclude that Surlina was PN Express’s employee and was about the business of PN Express when the accident occurred.

 

PN Express’s reliance on Clarendon is misplaced, because that case is distinguishable on its facts from the case at bar. In that case, no evidence of a lease arrangement was adduced: the driver denied that he had entered into a lease with the defendant motor carrier; there was no evidence that the defendant motor carrier knew that the driver had been hired to pick up loads; and the defendant’s logo and DOT numbers were not displayed on the driver’s truck. Thus, this Court concluded that “[b]ased on the record before us, we cannot find any evidence to support the conclusion that [the driver] leased himself or his truck to … defendant for the trip involved in the accident.”

 

2. PN Express asserts that the trial court erred in instructing the jury on the doctrine of “statutory employment,” arguing that this doctrine contravenes Georgia law of agency and respondeat superior. “In reviewing an allegedly erroneous jury instruction, we apply the ‘plain legal error’ standard of review.”

 

Over objection, the trial court instructed the jury, in pertinent part, as follows:

 

Federal motor carrier regulations require a motor carrier utilizing leased or rented equipment to have exclusive possession, control and use of the equipment for the duration of the lease. The lease shall further provide the authorized carrier shell [sic] assume complete responsibility for the operation of the equipment during the duration of the lease. Under this regulatory scheme, the motor carrier is fully responsible to the public for the operation of its leased vehicles, regardless of whether the vehicles are used in the scope of the carrier’s business or whether the lessor or the driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. PN Express complains that the last sentence of this charge imposes strict vicarious liability for the negligence of the driver who owns and operates the tractor-trailer, regardless of whether the driver was operating under the motor carrier’s control.

 

(a) Federal motor carrier regulations required PN Express, as a motor carrier utilizing leased or rented equipment, such as the tractor-trailer involved in the accident at issue here, to “have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.” 0 Citing Nationwide Mut. Ins. Co. v. Holbrooks,1 this Court noted in Hot Shot Express v. Assicurazioni Generali2 that “[u]nder this regulatory scheme, the motor carrier is fully responsible to the public for the operation of its leased vehicles, regardless of whether the vehicles are used in the scope of the carrier’s business.” 3 Our Supreme Court quoted this language from Hot Shot with approval in Coleman v. B-H Transfer Co. 4 This doctrine of strict vicarious liability imposed upon the lessee motor carrier is known as “statutory employment.” 5

 

Contending that the doctrine of statutory employment has been vitiated by 1986 and 1992 amendments to federal trucking regulations,6 PN Express urges this Court to overrule Holbrooks.7 We decline to do so, however, in light of our Supreme Court’s decision in Coleman,8 which is binding precedent.9 In that case, Coleman, the driver and owner of a tractor-trailer under contract to B-H Transfer Company, attempted to recover from B-H Transfer for injuries incurred in a collision with another truck also under contract to B-H Transfer.0 At issue was the enforceability of a release and indemnity provision in the independent contractor agreement between Coleman and B-H Transfer.1 The Supreme Court reiterated that “[t]he language of 49 CFR § 376.12(c)(1) and earlier regulations to the same effect have been interpreted to impose vicarious liability on the motor carrier, regardless of agency relationships, for the negligent operation of vehicles leased and operated under its certificate.” 2 Because, as a lessor, 3 “Coleman clearly was not a member of the public for whose benefit motor carrier regulations are in place,” 4 the Supreme Court determined that application of the release and indemnification provision to Coleman was prohibited neither by federal regulations 5 nor by the public policy of Georgia.6 The case before us, however, was brought by members of the general public “for whose benefit motor carrier regulations are in place.” 7 The doctrine of statutory employment is applicable here, and the trial court did not err in giving the challenged instruction to the jury.

 

(b) Contrary to PN Express’s contention, the instruction discussed above did not conflict with the court’s instructions on respondeat superior and logo liability; rather, the charges provided instruction to the jury on more than one theory of recovery. “Georgia law … permits a plaintiff to proceed to trial on alternative theories of recovery.” 8 Here, the Zegels asserted that there was an oral lease between Surlina as lessor and PN Express as lessee, and that PN Express was liable as the “statutory employer” of Surlina; and, in the alternative, the Zegels claimed that PN Express hired Surlina and that PN Express was liable, under the doctrine of respondeat superior, for Surlina’s actions within the course and scope of that employment. Because there is evidence in the record to support both theories, the trial court did not err in giving instructions as to both theories.

 

[10] When a jury charge is challenged on appeal,

 

[w]e will not overturn a trial court’s decision to give a particular jury charge if there was any evidence presented at trial to support giving the charge. In determining whether some evidence exists to support an instruction, an appellate court is not authorized either to weigh existing evidence or to judge witness credibility as these matters are within the province of the jury. 9

 

When Surlina was asked if he “had a leasing arrangement with PN Express,” he replied, “Yes.” Surlina’s testimony on this point was conflicting, but it was for the jury to resolve that conflict.0 Surlina further testified that Soldat provided him with the PN Express logo and DOT authorization numbers, and that Soldat knew that Surlina’s truck carried the logo and the DOT numbers. In its supplemental brief, PN Express points out that there is strong evidence that no lease existed between PN Express and Surlina; however, weighing the evidence is the role of the jury, not of this Court.1 Surlina also testified that Soldat, acting for PN Express, hired him as a driver on May 1, 2007. This evidence, however slight, was sufficient to justify the jury instructions on statutory employment and on respondeat superior.2

 

[11] 3. At the charge conference, PN Express requested the trial court to give a jury instruction based on 49 CFR § 376.12(c)(4), which provides:

 

Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with 49 USC 14102 and attendant administrative requirements.

 

Although the trial court agreed to give such a charge at the charge conference, the court apparently inadvertently omitted to do so. Counsel for PN Express objected to the jury charge on that basis, but the trial court maintained that it had given this charge. PN Express argues that because the trial court instructed the jury on subsection (c)(1) of 49 CFR § 376.12, it erred in failing to instruct on subsection (c)(4).

 

[12] The trial court’s failure to give a jury charge based on subsection (c)(4) of 49 CFR § 376.12 did not constitute reversible error. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charges contained error.” 3 In its charge to the jury, the trial court gave full and adequate instructions on the creation of a principal-agent relationship; the scope of an agent’s authority; proof of agency; the establishment of a master/servant relationship; and the scope of an employer’s liability for the acts of his employee. The trial court also instructed the jury that the mere presence of a logo on the side of a truck, without more, is insufficient to establish liability. We conclude that the omission of a charge based on subsection (c)(4) was not reversible error.4

 

[13] 4. PN Express contends that the trial court erred in overruling its objection to certain testimony by the Zegels’ expert. The following question was posed to the witness:

 

[L]et’s assume that a carrier that has obtained a DOT number allows an owner/operator, who has his own truck … to drive under the authority of the carrier’s number…. And then let’s further assume that that owner/operator, while driving under that authority, is involved in a collision somewhere…. What do the regulations state with respect to any responsibility on the … motor carrier?

 

In response, the Zegels’ expert witness testified that “once a carrier has shared his DOT number, … he would be liable for any actions of the employee, be it independent contractor or not…. And it clearly states that in the regulations.” When the witness was asked if his answer would change if, at the time of the collision, “the owner/operator was not carrying a load that had originated with the carrier,” the witness responded that under the federal regulations, “[w]hoever’s DOT [number] they’re operating under, that’s who is responsible.” PN Express argues that this testimony was inadmissible, because it was directed to the ultimate issue of liability. We disagree.

 

[14][15] The witness here was testifying as to the content of the federal regulations, not as to the ultimate issue in the case. Moreover, testimony of an expert even as to the ultimate issue is admissible “where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman.” 5 Here, the expert’s testimony related to his knowledge of federal trucking regulations unfamiliar to laymen. “The admission of evidence is a matter resting largely within the sound discretion of the trial court, and appellate courts will not interfere absent an abuse of discretion.” 6 We find no abuse of discretion here.

 

[16] 5. PN Express asserts that the trial court erred in declining to charge the jury under OCGA § 51-12-33. Subsection (c) of this Code section provides as follows: “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” Under subsection (d)(1), “[n]egligence or fault of a nonparty shall be considered … if a defending party gives notice … that a nonparty was wholly or partially at fault.” PN Express gave the notice required under OCGA § 51-12-33(d) of its intent to ask the jury to assign fault “wholly or partially” to Patterson Freight Company and certain other entities. PN Express contends that “[t]he jury could have easily concluded that Patterson Freight Company directed and controlled Surlina or negligently supervised him.” Without citing authority, PN Express argues that the trial court’s failure to give an apportionment charge under OCGA § 51-12-33 was reversible error. We disagree.

 

[17][18] The parties have directed us to no Georgia authority on point on this issue, and our research has uncovered none. We note that the Kegels’ action against PN Express is entirely based on notions of derivative liability: statutory employment and respondeat superior. Generally, where a party’s liability is solely vicarious, that party and the actively-negligent tortfeasor are regarded as a single tortfeasor.7 Thus, where a defendant employer’s liability is entirely dependent on principles of vicarious liability, such as respondeat superior, then “[u]nless additional and independent acts of negligence over and above those alleged against the servant or employee are alleged against the employer, a verdict exonerating the employee also exonerates the employer.” 8

 

Other states have determined that comparative fault statutes do not apply where the defendant’s liability is derivative, and we concur. “Since the corporation’s liability for the accident was purely vicarious in nature for the acts of [Surlina] himself, rather than joint and several, it is obvious … that the comparative fault statute [does] not apply.” 9 Thus, the trial court did not err in declining to instruct the jury on OCGA § 51-12-33.

 

Judgment affirmed.

 

SMITH, P.J., and ADAMS, J., concur.

 

The verdict was reduced by the amount of driver Mile Surlina’s insurance company’s pre-trial settlement of $740,000.

 

(Citation omitted.) Clarendon Nat. Ins. Co. v. Johnson, 293 Ga.App. 103, 104, 666 S.E.2d 567 (2008).

 

(Citation omitted.) Id.

 

(Footnote omitted.) Crosby v. Kendall, 247 Ga.App. 843, 847(2), 545 S.E.2d 385 (2001).

 

The parties stipulated to the admission of telephone company records showing the cell phone calls.

 

Supra.

 

Id. at 107, 545 S.E.2d 385.

 

Id. at 109(1)(a), 545 S.E.2d 385.

 

(Citation, punctuation, and footnote omitted.) Horton v. Hendrix, 291 Ga.App. 416, 418(1), 662 S.E.2d 227 (2008).

 

0. 49 CFR § 376.12(c)(1).

 

1. 187 Ga.App. 706, 371 S.E.2d 252 (1988).

 

2. 252 Ga.App. 372, 556 S.E.2d 475 (2001).

 

3. (Footnote omitted.) Id. at 373-374, 556 S.E.2d 475, citing Holbrooks, supra at 713(3).

 

4. 284 Ga. 624, 625(2), 669 S.E.2d 141 (2008).

 

5. See Clarendon, supra at 108(1)(a), 666 S.E.2d 567 (“Statutory employment is a theory of vicarious liability created by the [Federal Motor Carrier Safety Regulations]”) (citation and punctuation omitted).

 

6. 49 CFR § 376.12(c)(4); Lease and Interchange of Vehicles (Identification Devices), 3 ICC2d 92 (October 10, 1986).

 

7. Supra.

 

8. Supra.

 

9. See Etkind v. Suarez, 234 Ga.App. 108, 109, 505 S.E.2d 831 (1998), citing Ga. Const.1983, Art. VI, Sec. VI, Par. VI. (“this court has no authority to overrule or modify a decision of the Supreme Court of Georgia as ‘the decisions of the Supreme Court (of Georgia) shall bind all other courts as precedents’ ”) (citation and punctuation omitted).

 

0. Supra at 624.

 

1. Id.

 

2. (Citation and punctuation omitted.) Id. at 626(2).

 

3. Id.

 

4. Id. at 627(3).

 

5. Id. at 626(2).

 

6. Id. at 628(3).

 

7. Id. at 627(3).

 

8. (Footnote omitted.) Wingate Land & Dev. v. Robert C. Walker, Inc., 252 Ga.App. 818, 821(1), 558 S.E.2d 13 (2001) (plaintiff could pursue, and jury could be instructed upon, alternate claims of quantum meruit and breach of contract).

 

9. (Citation omitted; emphasis in original.) Collins v. Mitchell, 282 Ga.App. 860, 861(1), 640 S.E.2d 364 (2006).

 

0. See id.

 

1. See id.

 

2. See Reliance Ins. Co. v. Bridges, 168 Ga.App. 874, 876(1), 311 S.E.2d 193 (1983)

 

(“It is a well established rule that an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it. To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it”) (citation and punctuation omitted).

 

3. (Citations and punctuation omitted.) Delson v. Ga. Dept. of Transp., 295 Ga.App. 84, 88(2)(a), 671 S.E.2d 190 (2008).

 

4. See Bakery Svcs. v. Thornton Chevrolet, 224 Ga.App. 31, 35(6)(a), 479 S.E.2d 363 (1996) (where charges given correctly stated the law and reflected the principles embodied in appellant’s requested charge, trial court’s failure to give charge in exact language requested was not error).

 

5. (Citation, punctuation, and footnote omitted.) Ga. Dept. of Transp. v. Baldwin, 292 Ga.App. 816, 819(3), 665 S.E.2d 898 (2008).

 

6. (Citation and punctuation omitted.) Robert Stovall Family, L.P. v. Carroll County Water Auth., 255 Ga.App. 223, 224, 564 S.E.2d 763 (2002).

 

7. De Los Santos v. Saddlehill, Inc., 211 N.J.Super. 253, 511 A.2d 721, 727(I), n. 2 (N.J.Super.Ct.App.Div.1986) (“Clearly, the [Comparative Negligence] Act does not apply where the liability of one of the defendants is solely vicarious”). See N.J. Stat. Ann. § § 2A:15-5.1; 2A:53A-1.

 

8. (Citation and punctuation omitted.) H & H Subs, Inc. v. Lim, 213 Ga.App. 371, 372(1), 444 S.E.2d 404 (1994) (jury verdict was void where employee was found liable but actual damages were apportioned only against employer).

 

9. (Citations omitted.) J.R. Brooks & Son v. Quiroz, 707 So.2d 861, 863(II) (Fla. Third Dist. Ct.App.1998) (vicariously-liable defendant is entitled to reduce damages awarded against it by amount of settlement between injured party and actual tortfeasor). See Fla. Stat. § 768.81 (2010).

United States District Court,

W.D. Pennsylvania.

MI WINDOWS & DOORS, INC., Plaintiff,

v.

SOUTHEASTERN FREIGHT LINES, INC., Defendant.

Civil Action No. 07-1233.

 

June 2, 2010.

 

MEMORANDUM

 

GARY L. LANCASTER, Chief Judge.

 

This is an action for declaratory judgment and breach of contract. Plaintiff, MI Windows & Doors, Inc. (“MIWD”), alleges that defendant, Southeastern Freight Lines, Inc. (“Southeastern”) is contractually obligated to indemnify it in relation to a personal injury claim brought against MIWD by a Southeastern employee in Alabama. The Alabama action related to an injury that a Southeastern employee sustained while unloading a truck containing MIWD products. MIWD alleges that the Confidential Transportation Agreement (the “Agreement”) obligates Southeastern to indemnify MIWD for defense costs and settlement payments in the Alabama action [doc. no. 34].

 

MIWD has filed a motion for partial summary judgment pursuant to Fed.R.Civ.P. 56 contending that Southeastern owed a duty to defend, indemnify, and hold harmless MIWD in connection with the Alabama litigation [doc. no. 59]. Southeastern has filed a motion for summary judgment contending that: (1) MIWD was not a party to the Agreement, and even if it was; (2) MIWD’s claims are barred by the Pennsylvania Workmen’s Compensation Act, 42 Cons.Stat. § 4 81, et seq. [doc. no. 63].

 

For the reasons that follow, we will grant MIWD’s motion for partial summary judgment and will deny Southeastern’s motion. The remaining issue for trial will be to apportion negligence between MIWD and Southeastern.

 

I. BACKGROUND

 

Unless otherwise specifically indicated, the following material facts are undisputed. Some additional facts are discussed in context.

 

A. The Parties

 

MIWD manufactures windows and doors in Pennsylvania and across the country. It has a manufacturing facility located in Smyrna, Tennessee. MIWD used to be called “MI Home Products, Inc.,” which purchased the Smyrna facility from another window and door manufacturer, “Better Bilt,” in 1999.

 

Southeastern is a trucking company that operates more than seventy truck terminals or service centers. Southeastern operates a service center near Nashville, Tennessee, approximately ten miles from the MIWD Smyrna manufacturing facility.

 

Southeastern began transporting windows and doors for MIWD more than a decade ago. Eventually, MIWD became one of the largest customers of Southeastern’s Nashville service center.

 

B. The Alabama Litigation

 

The instant dispute stems from litigation that was originally filed in Jefferson County, Alabama in April 2006, and then removed to the United States District Court for the Northern District of Alabama. In the Alabama action, a former Southeastern employee, John A. Franks (“Franks”), filed suit against MIWD, alleging that MIWD negligently and/or wantonly failed to properly package and load sliding glass doors for shipment on a trailer to be carried by Southeastern. Franks had been severely and permanently injured in June 2005 while unloading MIWD’s sliding glass doors from a Southeastern trailer in Birmingham, Alabama. Although Southeastern was not a named party in the Alabama action, Southeastern intervened to protect its workmen’s compensation lien based upon benefits it had paid to Franks.

 

More than a year after Franks filed the Alabama action, MIWD tendered a claim for contractual indemnity and defense to Southeastern by letter dated June 19, 2007 [doc. no. 34, at Ex. C]. Southeastern rejected MIWD’s tender by letter dated June 28, 2007 [id. at Ex. D]. In that letter, Southeastern refused to indemnify MIWD because the Alabama action “consist[s] solely of allegations pertaining to MIWD’s own negligence.” Southeastern included a detailed analysis of sections 10 and 9.a. of the Agreement to support its conclusion that because Franks was accusing MIWD of negligence in the Alabama action, the indemnity provisions of the Agreement were not invoked. Notably, Southeastern stated that “[MIWD’s] current interpretation of the ‘Confidential Transportation Agreement’ between Southeastern and MIWD, which appears to be of recent vintage, ignores certain provisions and takes other provisions completely out of context.” Southeastern did not deny indemnification on the ground that MIWD was not a party to “the ‘Confidential Transportation Agreement’ between Southeastern and MIWD” as it does now.

 

MIWD thereafter chose to settle Franks’s claim against it for a significant but confidential amount of money. Before doing so, however, MIWD filed this action against Southeastern, alleging that Southeastern had expressly agreed to defend, indemnify, and hold harmless MIWD against suits brought by Southeastern employees, except to the extent of MIWD’s own negligence, under the Agreement. Southeastern now argues that MIWD was not a party to the Agreement and alternatively, that Southeastern is protected from any such liability under Pennsylvania’s Workmen’s Compensation Act.

 

C. The Agreement

 

1. Background

 

Prior to 2001, Southeastern carried only a small amount of freight for MIWD’s facility in Smyrna, Tennessee. When Home Depot, a mutual customer of MIWD and Southeastern, changed to a night delivery program in 2001, Southeastern began carrying large amounts of windows and doors from MIWD’s Smyrna facility. Around this same time, negotiations regarding the Agreement began, although it was not executed until 2004.

 

2. Disputed Provisions

 

The interpretation of certain provisions of the Agreement regarding indemnity and defense are at issue in this matter. The resolution of these disputes depends upon whether the Agreement applies to MIWD.

 

a. MIWD Coverage Under the Agreement

 

According to Southeastern, it began discussions in 2001 with MI Transportation, Inc. (“MIT”), not MIWD, regarding the Agreement. In support of its position, Southeastern points to, inter alia, the opening paragraph of the Agreement, titled “Parties”, which states that the Agreement is “by and between: MI Transportation, Inc., … (hereinafter called ‘SHIPPER’) and Southeastern Freight Lines, Inc., … (hereinafter called ‘CARRIER’). The Agreement was executed in September of 2004 by Patricia Sitlinger on behalf of MIT, and in March of 2004 by Robert Lyons on behalf of Southeastern.

 

MIWD does not dispute that MIT and MIWD are separate legal entities. However, according to MIWD, the Agreement applies to MIT, as well as MIT’s divisions and related affiliates, via section 16 of the Agreement, which explicitly incorporates Appendix D into the Agreement [id. at Ex. A, § 16 (“Attached hereto and expressly made a part hereof are various Appendices.”) ]. Appendix D lists several affiliates and divisions of MIT, including “Better Bilt” and “MI Home Products”, predecessors to MIWD.

 

Moreover, MIWD contends that the plain language of section 6.a.v. assures MIWD the same rights as MIT under the Agreement. However, Southeastern argues that this section only applies to compensation and payment provisions. Section 6.a.v. states:

 

6. Compensation and Payment

 

a. Rates and Charges

 

v. Shipper’ [sic] Affiliates

 

The provisions of this Agreement shall ensure [sic] to the benefit of SHIPPER, DIVISIONS, and related AFFILIATES, all of which are listed in Appendix D hereto.

 

b. Section 10-Indemnification

 

Section 10 of the Agreement provides:

 

10. Indemnity

 

Except to the extent of Shipper’s [sic] negligence, CARRIER shall at all times, indemnify, defend, and hold harmless SHIPPER, its agents, and employees against and from any and all claims arising from the services provided hereunder (including, without limitation, claims for personal injury, death and damage to property, clean-up costs from commodity spills and damage to the environment, whether or not caused by SHIPPER’S packaging, loading or other acts) asserted against SHIPPER (a) by any agent or employee of CARRIER or (b) by any other person. The provisions of this Paragraph shall survive cancellation, termination or expiration of this Agreement.

 

It is MIWD’s position that section 10 required Southeastern to indemnify, defend, and hold harmless MIWD in the Franks litigation, except to the extent of MIWD’s negligence, if any [doc. no. 60, at p. 18 (“MIWD is not seeking indemnification for its own negligence.”) ].

 

Southeastern contends that section 10 applies only to MIT, not MIWD, and even if it did apply to MIWD, Southeastern did not waive its protection under Pennsylvania’s Workmen’s Compensation Act which bars MIWD’s claims here. Southeastern contends, and MIWD does not dispute, that section 10 does not purport to indemnify MIWD for its own negligence.

 

II. STANDARD OF REVIEW

 

Summary judgment may be granted if, drawing all inferences in favor of the non-moving party, “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.” Fed.R.Civ.P. 56(c) (2).

 

The mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment or partial motion for summary judgment. A dispute over those facts that might affect the outcome of the suit under the governing substantive law, i.e., the material facts, however, will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Similarly, summary judgment is improper so long as the dispute over the material facts is genuine. Id. In determining whether the dispute is genuine, the court’s function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248-49.

 

The United States Supreme Court has “emphasized, [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts…. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotations omitted) (quoting Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

 

In summary, the inquiry on a Rule 56 motion is whether the evidence of record presents a genuine dispute over material facts so as to require submission of the matter to a jury for resolution of that factual dispute, or whether the evidence is so one-sided that the movant must prevail as a matter of law.

 

It is on this standard that the court has reviewed MIWD’s and Southeastern’s cross-motions for summary judgment. Based on the pleadings of record and the briefs filed in support and opposition thereto, the court will grant MIWD’s partial motion [doc. no. 59] and will deny Southeastern’s motion [doc. no. 63].

 

III. DISCUSSION

 

The cross-motions for summary judgment require determinations of the interpretation and construction of certain provisions of the Agreement. These are matters to be decided by the court. Sanford Inv. Co., Inc. v. Ahlstrom Machinery Holdings, Inc., 198 F.3d 415, 421 (3d Cir.1999); Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir.1980). We are able to make these determinations at the summary judgment stage because the contract is clear and unambiguous, and there are no material issues of fact in dispute with respect to: (1) whether the Agreement applied to MIWD, and (2) whether Southeastern waived its rights under the Pennsylvania Workmen’s Compensation Act in the Agreement.

 

A. The Agreement Applies to MIWD

 

It is undisputed that Pennsylvania law governs the interpretation and construction of the Agreement [doc. no. 34, Ex. A, § 17]. In Pennsylvania, contracts must be interpreted to give effect to the intent of the contracting parties. See, Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 389 (Pa.1986). “[W]hen a written contract is clear and unequivocal, its meaning must be determined by its contents alone.” Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 661 (Pa.1982) (quoting E. Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865, 866 (Pa.1965)). A contract is clear or unambiguous “if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction.” Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 93 (3d Cir.2001) (citations omitted).

 

In making the determination as to whether a contract is ambiguous, a court should consider all language within the contract as a whole. See, e.g., Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556, 560 (3d Cir.1973). A court should interpret a contract “so as to give effect to its general purpose.” Id. In addition, a court should avoid interpreting a contract so as to make any of its provisions unworkable or void. See, First Philadelphia Realty Corp. v. Albany Savs. Bank, 609 F.Supp. 207, 210 (E.D.Pa.1985) (observing that contracts should not be construed as to make any provision of the contract meaningless) (citation omitted).

 

Upon review of the Agreement as a whole, the court finds that the Agreement is clear and unambiguous in its application to MIWD. There is no dispute that the Agreement identifies MIT and Southeastern as the “Parties.” According to Southeastern, this ends the inquiry as to whether the Agreement applies to MIWD. We disagree.

 

Section 16 of the Agreement explicitly provides that all appendices to the Agreement are expressly made part of the Agreement. Appendix D contains a list divisions and affiliates of MIT, two of which, Better Bilt and MI Home Products, are predecessors to MIWD. The fact that MIWD is not specifically listed in Appendix D or elsewhere in the Agreement is of no significance. Southeastern does not dispute that MI Home Products purchased Better Bilt or that MI Home Products changed its name to MIWD. Given the undisputed relationship between Better Bilt, MI Home Products, and MIWD, we find that MIWD is included in Appendix D, Because Appendix D is expressly incorporated into the Agreement via section 16, we also find that the Agreement applies to MIWD.

 

Section 6.a.v. of the Agreement further supports our conclusion. That section provides that “The provisions of this Agreement shall ensure [sic] to the benefit of SHIPPER, DIVISIONS, and related AFFILIATES, all of which are listed in Appendix D hereto.” As we have already determined that MIWD is identified by reference to its predecessors in Appendix D, we find that all the provisions of the Agreement equally apply to MIWD.

 

We reject Southeastern’s argument that section 6.a.v. only relates to the pricing provisions in the Agreement because it falls under the heading “Compensation and Payment”, and the subheading “Rates and Charges.” Such an interpretation is contrary to the clear language of the Agreement and fails to take into account the entirety of the contract and its general purpose.

 

Section 6.a.v. does not indicate by its own language that it applies only to provisions contained within section 6 of the Agreement, or only to pricing provisions. Rather, it makes all the provisions in the Agreement applicable to all companies identified in Appendix D. By contrast, section 6.b.v., which falls under the same heading, provides, in part, that “the rules, rates, and charges in this Agreement will apply to the exclusion of all other rules, rates and charges published ….” (emphasis added). The language and structure of the Agreement indicate that the headings are not controlling and that the phrase, “provisions of this Agreement” is broader than “the rules, rates, and charges published” in the Agreement. The court will not interpret the Agreement so as to render section 6.a.v. meaningless or to limit its scope in contravention of the plain language of the Agreement. See, Girard Trust Bank v. Life Ins. Co. of N. Am., 243 Pa.Super. 152, 364 A.2d 495, 498 (Pa.Super.Ct.1976).

 

Moreover, Southeastern’s interpretation of the Agreement contradicts the general purpose of the shipping agreement as expressed therein, i.e., to provide for the transportation and shipment of MIT’s and its divisions’ and affiliates’ goods. If the parties intended that the Agreement apply only to shipments originating from MIT, then Appendix D would not have been attached to the Agreement. Such an interpretation would render the Agreement almost meaningless and contradict the intention of the parties.

 

Where the intention of the parties is clear, as it is in this case, there is no need to resort to extrinsic aids or evidence. E. Crossroads Center, 205 A.2d at 866. A reading of the entire contract permits no reasonable interpretation other than the one set forth above regarding this issue. Because “[t]he provisions of the Agreement … ensure [sic] to the benefit of [those companies] listed in Appendix D,” and it is undisputed that MI Home Products and Better Bilt, both of which are listed in Appendix D, are predecessors of MIWD, the provisions of the Agreement apply to MIWD.

 

Because we find that the Agreement applies to MIWD, it follows that, under section 10, Southeastern owed a duty to defend, indemnify, and hold harmless MIWD against Franks’s claims in the Alabama action except to the extent, if any, that MIWD’s own negligence, including negligent packaging, caused or contributed to Franks’s injuries. What portion, if any, of Franks’s injuries was caused by the negligence of MIWD, and what portion, if any, of Franks’s injuries was caused by the negligence of Southeastern, is a question of fact that remains for the jury to decide.

 

B. Southeastern’s Waiver of Workmen’s Compensation Immunity

 

Assuming the Agreement applies to MIWD, Southeastern has argued alternatively that the Pennsylvania Workmen’s Compensation Act bars MIWD’s claims under the Agreement. MIWD counters that Southeastern waived its Workmen’s Compensation Act immunity.

 

1. Pennsylvania’s Workmen’s Compensation Act

 

Pennsylvania’s Workmen’s Compensation Act provides that the liability imposed thereunder is “exclusive and in place of any and all other liabilities to” an employee. 77 Pa. Cons.Stat. § 481(a). The Act also provides an employer with immunity from suit for accidents within the scope of employment, and it bars an employer from being joined in a suit against a third party arising out of such an incident. Clark v. Willamette Industries, Inc., 918 F.Supp. 139, 141 (W.D.Pa.1996) (finding no waiver). It likewise bars a third party from seeking “contribution or indemnification from the employer, even though the employer’s negligence may have been the primary cause of the injury.” Kennedy v. Shuwa Invs. Corp., 825 F.Supp. 712, 713 (E.D.Pa.1993) (barring third party indemnity action). In short, under Pennsylvania law, if an employee is injured on the job, his sole recourse against his employer is workmen’s compensation benefits, not a civil suit for damages.

 

Specifically, Pennsylvania’s Workmen’s Compensation Act provides, in relevant part,

 

In the event injury or death to an employe[e] is caused by a third party, then such employe[e] … may bring their action at law against such third party, but the employer … shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract ….

 

77 Pa. Const. Stat. § 481(b) (emphasis added).

 

To waive immunity under the Act, “[t]he parties must specifically utilize language which indicates that the employer/alleged indemnitor intends to indemnify the third party against claims by employees of the alleged indemnitor; this must clearly appear from the terms of the agreement.” Snare v. Ebensburg Power, Co., 431 Pa.Super. 515, 637 A.2d 296, 298 (Pa.Super.Ct.1993). “While an employer need not expressly waive Workmen’s Compensation immunity, the intent to indemnify against claims by employees of the alleged indemnitor must clearly appear from the terms of the agreement.”   Gulf Interstate Field Servs., Inc. v. Henkels & McCoy, Inc., No. 98-651, 1998 WL 181935, at(E.D.Pa. Apr.17, 1998) (citation omitted). “General indemnity language is insufficient.” Id. Rather, the waiver must be clear and show an intent to indemnify “in the event of either the indemnitee’s or the employer’s own negligence.” Bester v. Essex Crane Rental Corp., 422 Pa.Super. 178, 619 A.2d 304, 307 (Pa.Super.Ct.1993) (affirming granting of preliminary objections finding no waiver of the Act) (emphasis added); see also Kiewit E. Co., Inc. v. L & R Constr. Co., Inc., 44 F.3d 1194, 1199 (3d Cir.1995) (requiring indemnification because of clear and unequivocal language).

 

2. Southeastern Waived Immunity Under the Act

 

Here, section 10 of the Agreement addresses indemnity. It provides, in relevant part,

 

Except to the extent of Shipper’s [sic] negligence, CARRIER shall at all times, indemnify, defend, and hold harmless SHIPPER … against and from any and all claims arising from the services provided hereunder (including, without limitation, claims for personal injury … whether or not caused by SHIPPER’S packaging, loading or other acts) asserted against SHIPPER (a) by any agent or employee of CARRIER ….

 

By this language, Southeastern specifically agreed to indemnify the shipper, MIWD, for liability arising from “personal injury” suffered by “an agent or employee” of Southeastern, except to the extent of MIWD’s own negligence. This language is in accord with section 9.a., which states that “CARRIER [Southeastern] will hold harmless and indemnify SHIPPER [MIWD] for any claim for insurance premium or any claim by any employee of CARRIER [Southeastern] sustained in the ordinary course of business ….”

 

We find that the language in sections 9.a. and 10, which explicitly applies claims brought by Southeastern employees, satisfies the requirement of Pennsylvania law that “the intent to indemnify against claims by employees of the alleged indemnitor must clearly appear from the terms of the agreement.” Gulf Interstate, Snare, supra.

 

The fact that MIWD is not explicitly “named” in section 10 is irrelevant to our analysis. “Third Circuit caselaw does not require that an indemnification clause actually include the proper name of a party in order to be applied to that party.” Muth v. Rondel at Atlas Terrace, LLC, No. 08-0476, 2009 WL 50173, atn. 3 (E.D.Pa. Jan.8, 2009) (citing Kiewit, 44 F.3d at 1201) (construing an indemnification clause to require the subcontractor employer, L & R Construction, to indemnify the general contractor, Kiewit/Perini, when the parties were identified only as “Subcontractor” and “Contractor” in the contract).

 

Here, we have already found that the Agreement included MIWD and its predecessors, MI Home Products and Better Bilt. The requirements for waiver under the Pennsylvania Workmen’s Compensation Act have been met, and the indemnity provision is enforceable against Southeastern. See, Hackman v. Moyer Packing, 423 Pa.Super. 378, 621 A.2d 166, 168 (Pa.Super.Ct.1993) (finding that trial court did not err in concluding that the indemnity agreement was enforceable).

 

Based on the foregoing, we find that, except to the extent of MIWD’s negligence, Southeastern had a duty to defend, indemnify, and hold harmless MIWD from all personal injury claims by an employee of Southeastern arising from services performed under the Agreement [doc. no. 34, at Ex. A, § 10; see also doc. no. 60, at p. 14, 621 A.2d 166].

 

IV. CONCLUSION

 

For the reasons set forth above, MIWD’s motion for partial summary judgment will be granted, and Southeastern’s motion for summary judgment will be denied.

 

An appropriate order follows.

 

ORDER

 

On this 2nd day of June, 2010, IT IS HEREBY ORDERED that plaintiff’s motion for partial summary judgment [doc. no. 59] is GRANTED. It is further ordered that defendant’s motion for summary judgment [doc. no. 63] is DENIED without prejudice.

 

Oral argument scheduled for June 15, 2010 is canceled. Instead, the parties are directed to appear on June 15, 2010 at 2:00 p.m. for a status conference. The status conference already scheduled for June 25th is canceled.