United States District Court,

E.D. Pennsylvania.

PENN TANK LINES, INC.

v.

LIBERTY SURPLUS INSURANCE CORPORATION.

 

Civil Action No. 10–cv–178.

May 27, 2011.

 

Robert B. Bodzin, Kleinbard, Bell & Brecker, LLP, Philadelphia, PA, for Plaintiff.

 

John C. Sullivan, Post & Schell, PC, Philadelphia, PA, for Defendant.

 

ORDER

LEGROME D. DAVIS, District Judge.

AND NOW, this 27th day of May 2011, upon consideration of the parties’ cross-motions for summary judgment to determine whether Plaintiff Penn Tank Lines, Inc. is entitled to indemnification under the insurance policy numbered TIE–NY–100048–016 issued by Defendant Liberty Surplus Insurance Corporation, and each party’s opposition, it is hereby ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. No. 16) is GRANTED in part and DENIED in part, and Defendant’s Motion for Summary Judgment (Doc. No. 18) is DENIED. Accordingly, it is further ORDERED and DECLARED that:

 

1. A claim within the meaning of the policy for costs incurred by Plaintiff in connection with environmental contamination resulting from a March 24, 2006 gasoline spill in Melbourne, Florida, was first made against Plaintiff during the policy period, July 1, 2006 to July 1, 2008;

 

2. Plaintiff timely reported the claim to Defendant during that policy period;

 

3. Genuine issues of disputed material fact remain to be determined by the fact finder as to whether the policy exclusion for “Known Circumstances and Non–Disclosure” precludes insurance for the claim arising from the gasoline spill;

 

4. Genuine issues of disputed material fact remain to be determined by the fact finder as to whether Plaintiff complied with the policy duty to timely notify Defendant of pollution conditions that might result in a claim within the meaning of the policy; and

 

5. Plaintiff did not knowingly make false statements or knowingly fail to disclose information which was material to the risk against which Plaintiff sought to be insured under the policy.

 

MEMORANDUM

This action arises from an insurance claim by Plaintiff Penn Tank Lines, Inc. (“Penn Tank”) under a claims-made pollution liability policy issued by Defendant Liberty Surplus Insurance Corporation (“LSI”). The parties have filed cross-motions for summary judgment to determine whether Penn Tank is entitled to indemnification under the insurance policy. Penn Tank’s Motion will be granted in part and denied in part, and LSI’s Motion will be denied.

 

I. PROCEDURAL AND FACTUAL BACKGROUND

Penn Tank transports gasoline and other fuels by truck throughout the United States. On March 24, 2006, a Penn Tank truck overturned in a single vehicle, rollover accident on Interstate 95 in Melbourne, Florida. The truck driver, Joseph DeSimone, was killed. The truck’s cargo of 8,800 gallons of gasoline and the truck’s diesel fuel spilled along the roadway. Penn Tank maintains that its liability for the costs to clean up the gasoline is insured and LSI disclaims any duty to indemnify Penn Tank under the policy.

 

Compl. ¶ 6; Affidavit of John McSherry, Pl. Mot., Ex. 1, Doc. Nos. 17–1, 17–2, and 17–3 (“J. McSherry Aff.”) ¶ 2.

 

Compl. ¶ 7; Answer ¶ 7; J. McSherry Aff. ¶ 3.

 

Compl. ¶ 8; Answer ¶ 8; J. McSherry Aff. ¶¶ 4, 5.

 

On January 8, 2010, Penn Tank filed suit in the Court of Common Pleas of Philadelphia County. On January 14, 2010, LSI removed the action to this Court. The Complaint alleges that LSI breached its insurance contract to pay for clean-up costs from the accident (Count I), was unjustly enriched by its wrongful retention of policy proceeds (Count II), and declined indemnity in bad faith (Count III). By June 22, 2010 Order (Doc. No. 11), the Court granted LSI’s motion to dismiss Counts II and III. On October 1, 2010, discovery closed. On October 15, 2010, Penn Tank and LSI filed the instant cross-motions for summary judgment. (Doc. Nos.16, 18.)

 

Spanning the period from July 1, 2002, to July 1, 2008, LSI insured Penn Tank under three consecutive “Contractors Pollution Liability” policies, each insuring a two-year policy period. The policies insured liability claims first made against Penn Tank during the policy period and reported to LSI as required by the policy terms.

 

J. McSherry Aff. ¶ 6. The LSI policies were issued for the periods: July 1, 2002 to July 1, 2004 (“2002–04 policy”), July 1, 2004 to July 1, 2006 (“2004–06 policy”), and July 1, 2006 to July 1, 2008 (“2006–08 policy”). The parties agree that the policy terms at issue in this litigation are those included in the 2006–08 policy, Pl. Mot., Ex. 2, Doc. No. 17–3; Sullivan Decl., Ex. A, Doc. No. 22–4.

 

Penn Tank also procured insurance through FS Insurance, Ltd. (“FS Insurance”), a captive specialty insurer for its member companies in the trucking industry.  Discover Re underwrote the policies procured through FS Insurance using several insurance carriers. In 2000, one of those carriers, Discover Property & Casualty Insurance Company, issued to Penn Tank a policy (“Discover Re policy”) that provided insurance for trucking and automobile liability, among other coverages, on a per “accident” basis. The policy insured “covered pollution cost or expense” resulting from the ownership, maintenance or use of insured trucks. The Discover Re policy was renewed annually through July 1, 2008.

 

J. McSherry Aff. ¶¶ 10, 13; Apr. 28, 2010 John McSherry Deposition Transcript (“J. McSherry Dep.”), 25:17–23, 26:16–27:12, Sullivan Decl., Ex. B, Doc. No. 22–4; Def. Mot., Ex. C, Doc. No. 18–6.

 

J. McSherry Aff. ¶¶ 10–11.

 

Discover Re Policy for period, July 1, 2005 to July 1, 2006, Def. Mot., Ex. D–1, Doc. No. 18–7 at 22–53.

 

Marsh USA, Inc. (“Marsh”) acted as Penn Tank’s insurance broker for all of its insurance policies. Penn Tank used Marsh’s services in the purchase of the LSI policies and renewals of the LSI and Discover Re policies. Marsh also managed the insurance program of FS Insurance.0 Gallagher Bassett Services, Inc. (“Gallagher Bassett”) was the third-party administrator contracted by Penn Tank to handle its liability claims under the Discover Re policy.1 Penn Tank reported those claims directly to Gallagher Bassett.2

 

J. McSherry Aff. ¶ 14.

 

J. McSherry Dep., 36:2–16.

 

0. J. McSherry Dep., 35:13–14.

 

1. J. McSherry Aff. ¶ 15.

 

2. J. McSherry Dep., 18:10–22.

 

On March 24, 2006, Penn Tank, through Gallagher Bassett, reported the accident to FS Insurance, submitting a detailed report that stated: “Our Safety Department presently on the scene—Gasoline spill from loaded trailer being cleaned up.” 3 FS Insurance agreed to pay for the initial clean-up of the gasoline spill.4 Penn Tank employed Florida Environmental Regulation Specialists (“FER”) to address the spill. The day of the accident, FER and the Florida Department of Environmental Protection (“FDEP”) inspected the site. FER, using various contractors, performed primary clean-up work at the site during March 27–31, 2006. Some tons of contaminated soil were removed and replaced with clean fill.5 During April to June 2006, FER prepared invoices for the primary clean-up, a total of $278,152.23.6 FER submitted the invoices to Gallagher Bassett, FS Insurance paid the invoices under the General Re policy, and Gallagher Bassett issued the payments to FER on behalf of Penn Tank.7 No demand for money was made against Penn Tank for costs to clean up the spill.8

 

3. J. McSherry Aff. ¶ 16; Accident report, J. McSherry Aff., Ex. A; Def. Mot., Ex. E, Doc. No. 18–12 at 6; Nov. 5, 2010 Stephen McSherry Affidavit (“S. McSherry Aff.”) ¶ 4, Doc. No. 20, Ex. 20.

 

4. J. McSherry Aff. ¶ 17; S. McSherry Aff. ¶ 5.

 

5. May 24, 2006 FER Petroleum Spill Cleanup/Source Removal Report (“Source Removal Report”), Sullivan Decl., Ex. G, Doc. No. 22–5 at 38; J. McSherry Aff. ¶ 18.

 

6. FER invoices, Sullivan Decl., Ex. C, Doc. No. 22–5; Def. Mot., Ex. J, Doc. No. 18–13.

 

7. J. McSherry Aff. ¶¶ 18–20; Apr. 17, 2006 Boik email, Sullivan Decl., Ex. D, Doc. No. 22–5; May 4, 2006 Gordner email, Sullivan Decl., Ex. E, Doc. No. 22–5; June 28, 2006 Parlaman email, Sullivan Decl., Ex. F, Doc. No. 22–5; S. McSherry Aff. ¶¶ 6, 7.

 

 

8. S. McSherry Aff. ¶ 8.

 

On March 30, 2006, Penn Tank’s safety director, Steven Chastain, and FER’s environmental manager, Richard Boik, inspected the accident site. The next day, Chastain reported to Penn Tank’s risk control manager, William Parlaman, providing a detailed description of the site. Chastain reported that gasoline had entered the water table and approximately 20,000 gallons of water would have to be removed from the site. He also reported Boik’s opinion that given the amount of contamination, clean-up efforts realistically would not achieve a level of “Ground Water Clean.” Boik planned to install monitor wells and “hope [d]” clean-up efforts would reach the level of “Natural Attenuation,” noted as a level that “allows for the natural process to breakdown the remaining product contamination and not require any additional clean up, other than regular monitoring for a period of time.” 9 As of March 31, 2006, Penn Tank’s CEO, John McSherry, had been advised that clean-up costs at the site would be $400,000, and perhaps more.0

 

9. Mar. 31, 2006 Chastain email, Sullivan Decl., Ex. K, Doc. No. 22–5; Def. Mot., Ex. G, Doc. No. 18–12 at 10–11.

 

0. J. McSherry Dep., 62:12–21; Mar. 29, 2006 Chastain email, Sullivan Decl., Ex. K, Doc. No. 22–4; Def. Mot., Ex. G, Doc. No. 18–12.

 

Boik, on behalf of Penn Tank and Gallagher Bassett, prepared a Source Removal Report, dated May 24, 2006. In that report, FER recommended “further assessment of groundwater to establish if any constituents of petroleum hydrocarbons exceed FDEP Groundwater Cleanup Target Levels, and assess the extent of those levels at the spill location.” 1 On May 24, 2006, Boik forwarded the Source Removal Report to the FDEP.2

 

1. May 24, 2006 FER Source Removal Report, Sullivan Decl., Ex. G, Doc. No. 22–5, Def. Mot., Ex. H, Doc. No. 18–12 at 18.

 

2. May 24, 2006 Boik letter, Sullivan Decl., Ex. S, Doc. No. 22–6.

 

The LSI policy issued for the July 1, 2004 to July 1, 2006 period (“2004–06 policy”) was renewed under a new policy number effective July 1, 2006 (“2006–08 policy”). From the date of the accident through the renewal of the LSI policy, Penn Tank did not receive any notice from the FDEP or any other Florida environmental agency concerning Penn Tank’s potential responsibility for the gasoline spill.3 During that time, Penn Tank also did not receive any demand from any person asserting that it was responsible for cleaning up the spill.4

 

3. S. McSherry ¶ 9.

 

4. S. McSherry ¶ 10.

 

The renewal was obtained in June 2006 by Marsh’s vice president, Jeffrey Conway, who communicated with an underwriter of Liberty International Underwriters (“LIU”), Brian Hegarty. On June 1, 2006, LIU emailed Marsh, asking for information about Penn Tank’s operations for purposes of developing a renewal quotation and stating, “application is attached.” The email does not reflect such an attachment. Marsh responded by email, providing information, forwarding numerous documents, and stating, “[c]ompleted application to follow.” 5 Marsh’s submission included information about Penn Tank’s previous trucking accidents.6 Marsh’s submission also attached a trucking application that Penn Tank had completed for another carrier. The trucking application listed a loss for the March 24, 2006 accident involving Mr. DeSimone.7 On June 8, 2006, LIU provided a renewal quotation, having received Marsh’s submission with the completed trucking application, but without having received a completed LIU application form.8 On June 27, 2006, LIU bound coverage for the LSI July 1, 2006–08 policy, forwarding to Marsh a binder that stated:

 

5. June 1, 2006 Hegarty email, Sullivan Decl., Ex. L, Doc. No. 22–6; Def. Mot., Ex. U, Doc. No. 18–15.

 

6. J. McSherry Aff. ¶ 24.

 

7. J. McSherry Aff. ¶ 25, Ex. B, Doc. No. 17–1 at 30 (“Joseph DeSimone EE was injured in an auto accident”); Sept. 28, 2010 Jeffrey Steven Conway Deposition Transcript, 65:3–10, 66:11–14.

 

8. June 8, 2006 Hegarty and June 13, 2006 Conway emails, Def. Mot ., Ex. V, Doc. No. 18–16.

 

CONTINUATION OF COVERAGE SUBJECT TO:

 

1. The receipt of a signed and dated Liberty International Underwriters Application including all relevant attachments.9

 

9. June 27, 2006 LIU binder, Sullivan Decl., Ex. M, Doc. No. 22–6; Def. Mot., Ex. W, Doc. No. 18–16.

 

Before LIU bound coverage for the 2006–08 policy, Penn Tank did not notify LSI of the gasoline spill. The record does not suggest that Marsh, FS Insurance, or Gallagher Bassett provided any such notice to LSI. Before LIU bound coverage, Penn Tank did not believe that it had or might have any liability for environmental loss or damage from the March 24, 2006 accident.0 Also, Penn Tank did not believe that it might pursue a claim under an LSI policy because FS Insurance had accepted coverage for clean-up expenses from the accident without any reservation of rights to decline coverage.1 Before LIU bound coverage, no property owner, state or local agency, or other third-party had asserted that Penn Tank was responsible for environmental loss or damage from the accident.2

 

0. J. McSherry Aff. ¶ 27.

 

1. J. McSherry Aff. ¶ 28.

 

2. J. McSherry Aff. ¶¶ 29, 30, 42.

 

On September 28, 2006, the FDEP wrote to Penn Tank, stating that FER’s Source Removal Report

 

adequately documented the source removal activities, but the extent and magnitude of the soil and groundwater contamination have not been adequately defined…. Because petroleum contamination associated with the March 24, 2006 discharge still exists, we are referring this incident to the Brevard County Natural Resources Management Office … a complete assessment will need to be conducted and a Site Assessment Report (SAR) will need to be submitted …. 3

 

3. Sept. 28, 2006 FDEP letter, J. McSherry Aff. ¶ 31, Ex. C; Sullivan Decl., Ex. T, Doc. No. 22–6.

 

This was the first notice to Penn Tank from any environmental agency that Penn Tank might be responsible for environmental loss or damage from the accident.4

 

4. J. McSherry Aff. ¶ 31.

 

At some point during October to November 2006, Discover Re began to question its obligation to insure the clean-up costs, as reflected in discussions among representatives of Discover Re, Gallagher Bassett, and Marsh.5 According to a Marsh representative, Discover Re took the position that Gallagher Bassett “should be expediting the resolution of Penn’s obligations relative to clean up and pursuing reimbursement from the pollution carrier [LSI].” 6 At this time, however, Discover Re did not issue a written disclaimer of coverage. Penn Tank first learned that FS insurance would not pay any future clean-up costs at some point in November to December 2006.7 By that time, Discover Re had paid $348,894.70 for clean-up costs. Discover Re made no further payments.

 

5. Oct. 25, 2006 Gordner email, Def. Mot., Ex. O, Doc. No. 18–13; Nov. 7, 2006 email chain, Def. Mot., Ex. P, Doc. No. 18–14.

 

6. Nov. 29, 2006 Langford email, Def. Mot., Ex. Q, Doc. No. 18–14 (stating also, “I would be very surprised if there weren’t endorsements intended to extend coverage for [Penn Tank] for these kinds of incidents given the likelihood of this happening in their business.”).

 

7. J. McSherry Aff. ¶ 33.

 

On November 30, 2006, Marsh’s vice president, Conway, informed Penn Tank’s CEO, McSherry, that the only outstanding renewal requirement was a completed LIU application. Conway forwarded to McSherry a partially completed application form, asking McSherry to review and complete the information on the form, sign and date the application July 1, 2006, and send it back to Conway for transmission to LIU.8 The application contained the following question number 29, which someone eventually answered by checking “no”:

 

8. Nov. 30, 2006 email, J. McSherry Aff. ¶ 44, Ex. J; Sullivan Decl., Ex. O, Doc. No. 22–6; Def. Mot., Ex. X, Doc. No. 18–16.

 

Is the applicant aware of the following: any circumstances or any allegations of the applicant’s liability, or any allegations of an act, error, or omission in the performance of the applicant’s services which may result in any claim, suit, or demand for money or services against the applicant or any person or entity for who the coverage is sought? If yes, please explain.

 

PLEASE NOTE THAT THE POLICY SHALL NOT APPLY TO SUCH REPORTED CLAIMS OR CIRCUMSTANCES, UNLESS SCHEDULED ONTO THE POLICY BY ENDORSEMENT.9

 

9. LIU application, Sullivan Decl., Ex. H, Doc. No. 22–5 at 67; Def. Mot., Ex. Y, Doc. No. 18–16 at 41.

 

At deposition, McSherry testified that when he signed the application, he was aware of the gasoline spill.0 He does not know if he checked off any of the boxes in the application.1

 

0. J. McSherry Dep., 91:1–23; Sullivan Decl., Ex. B, Doc. No. 22–4; Def. Mot. Ex. C, Doc. No. 18–6.

 

1. J. McSherry Aff. ¶ 45.

 

On December 21, 2006, Brevard County Natural Resource Management Office (“Brevard County”) wrote to Penn Tank, advising that Penn Tank was required to perform a site assessment and site assessment report by February 24, 2007, and that a failure to do so “may result in formal enforcement action.” 2 On December 26, 2006, Marsh on behalf of Penn Tank, notified LSI of the March 24, 2006 accident, the involvement of Florida’s environmental agency, the clean-up costs, and “the possibility that further clean-up expenses will be incurred to have a ground water assessment completed.” 3 On January 23, 2007, LIU acknowledge receipt of the notice, and on February 14, 2007, requested further information. In response on April 16, 2007, Marsh provided information to LIU, including the December 21, 2006 Brevard County letter. 4

 

2. J. McSherry Aff. ¶ 34, Ex. D.

 

3. Dec. 26, 2006 Bailey letter, McSherry Aff. ¶ 35, Ex. E; Sullivan Decl., Ex. I, Doc. No. 22–5; Def. Mot., Ex. Z, Doc. No. 18–16.

 

4. Jan. 23, 2007 LIU letter, Sullivan Decl., Ex. P, Doc. No. 22–6; Def. Mot., Ex. AA, Doc. No. 18–16; Feb. 14, 2007 Papazian letter, J. McSherry Aff. ¶ 36, Ex. F; Sullivan Decl., Ex. Q, Doc. No. 22–6; Def. Mot., Ex. BB, Doc. No. 18–17; April 16, 2007 Bailey email, Sullivan Decl., Ex. R, Doc. No. 22–6; Def. Mot., Ex. CC, Doc. No. 18–17; Dec. 21, 2006 Brevard County letter, J. McSherry Aff. ¶ 37, Ex. F.

 

On April 30, 2007, Gallagher Bassett informed Penn Tank that Discover Re disclaimed coverage for clean-up costs, quoting the policy’s pollution exclusion no. 11, with no other explanation.5 FS Insurance demanded that Penn Tank repay the amounts already received for clean-up costs at the accident site.6 Penn Tank demanded that Discover Re rescind its coverage position 7 but Discover Re did not do so.

 

5. Apr. 30, 2007 Gordner letter, Def. Mot., Ex. R, Doc. No. 18–14.

 

6. J. McSherry Aff. ¶ 38.

 

7. Aug. 8, 2007 Parlaman letter, Def. Mot., Ex. S, Doc. No. 18–14; Aug. 9, 2007 Gordner email, Def. Mot., Ex. T, Doc. No. 18–14

 

On April 30, 2007, LSI through LIU denied coverage, and on May 1, 2007, reaffirmed its denial of coverage, under both the 2004–06 and 2006–08 policies for liability arising from the March 24, 2006 accident.8 LSI based its declination on multiple grounds. Among those reasons, LSI concluded in regard to the 2004–06 policy that a claim was made against Penn Tank in March to June 2006, but was not reported to LSI within the policy period.9 In regard to the 2006–08 policy, LSI concluded that Penn Tank knew or should have known that a claim might arise from the gasoline spill, but failed to timely disclose those circumstances. LSI also decided Penn Tank had made material misrepresentations in the July 1, 2006 renewal process justifying a potential action to rescind the 2006–08 policy.

 

8. April 30 and May 1, 2007 LIU letters, J. McSherry Aff. ¶ 39, Exs. H, I; Def. Mot., Ex. DD, Doc. No. 18–17.

 

9. J. McSherry Aff. ¶ 40 (“In the May 1, 2007 letter, Liberty equated the ‘occurrence’ of the Truck Accident with a ‘claim’.”). At deposition, Edmund Papazian, LIU’s claims attorney testified: “I’ve been a lawyer for 30 years. As soon as you have that spill, there’s a claim.” When asked: “Would it be fair to say that when you made your coverage decision that you determined that the date of the occurrence, meaning the overturn and spill of March 24, 2006, was the same date as the date a claim was made against Penn Tank as that term is defined in the policy?”, Papazian answered: “Yes.” Apr. 8, 2010 Edmund Papazian Deposition Transcript, 55:16–18, 56:2–12, 127:8–22, Pl. Mot., Ex. A, Doc. No. 16–1. In response to Penn Tank’s Request for Admission and Interrogatory No. 5, LSI answered: “The FER Invoice dated April 17, 2006 is a written demand, received by Penn Tank Lines, which asserts responsibility on the part of Penn Tank Lines for a loss.” LSI’s discovery responses, Pl. Mot., Ex. B, Doc. No. 16–1.

 

On November 23, 2009, Penn Tank requested reconsideration of LSI’s declination of coverage. Penn Tank also informed LSI that the State of Florida had requested additional remedial measures to clean up the site, which Penn Tank estimated would be in excess of $700,000.00.0 In response on December 15, 2009, LIU, on behalf of LSI, wrote to Penn Tank’s attorney, reaffirming the declination.1

 

0. Nov. 23, 2009 Bodzin letter, Def. Mot., Ex. EE, Doc. No. 18–17.

 

1. Dec. 15, 2009 Papazian letter, Def. Mot., Ex. FF, Doc. No. 18–17.

 

II. LEGAL STANDARD

Under Pennsylvania law, which the parties agree applies here, the interpretation of an insurance contract regarding coverage is generally performed by the court. Donegal Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 938 A.2d 286, 290 (Pa.2007); Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 908 A.2d 888, 897 (Pa.2006).

 

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” for purposes of a summary judgment motion if a dispute over that fact “might affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. The dispute is not genuine if it merely involves “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

 

The moving party must show that if the evidentiary material of record were reduced to admissible evidence at trial, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets its initial burden, the burden shifts to the non-movant who must set forth specific facts showing a genuine issue for trial and may not rest upon mere allegations, speculation, unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir.2001). In determining whether summary judgment is appropriate, “we must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Stratechuk v. Bd. of Educ., South Orange–Maplewood Sch. Dist., 587 F.3d 597, 603 (3d Cir.2009) (internal quotation marks and citations omitted), cert. denied, ––– U.S. ––––, 131 S.Ct. 72, 178 L.Ed.2d 24 (U.S.2010).

 

In regard to a claims-made policy, the insured bears the burden at trial of proving compliance with policy notice of claim provisions and reporting requirements as a condition precedent to coverage. Ace Am. Ins. Co. v. Underwriters at Lloyds and Cos., 939 A.2d 935, 940 (Pa.Super.Ct.2007) (notice of a claim is a condition precedent to coverage and not a limitation of coverage), aff’d, 601 Pa. 95, 971 A.2d 1121 (Pa.2009). The insurer carries the burden of proving the applicability of any exclusions or limitations on coverage. Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (Pa.1999); Miller v. Boston Ins. Co., 420 Pa. 566, 218 A.2d 275, 277 (Pa.1996) (“[a] defense based on an exception or exclusion in a policy is an affirmative one, and the burden is cast upon the defendant to establish it”); Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962–63 (Pa.Super.Ct.2007), appeal denied, 596 Pa. 747, 946 A.2d 688 (Pa.2008); Koppers Co., Inc. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1446 (3d Cir.1996).

 

III. DISCUSSION

The LSI policy insures Penn Tank against liability for claims made against it as a result of its truck operations throughout the United States.2 See Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir.2002) (“The primary aim of third-party insurance is to defend and indemnify insureds against liability for claims against them as a result of their own conduct.”). Thus, the LSI policy indemnifies Penn Tank for sums it becomes legally obligated to pay for claims made against it by third-parties asserting that Penn Tank’s operations caused pollution:

 

2. 2006–08 LSI Policy, Declarations, Covered Operations, Pl. Mot., Ex. 2, Doc. No. 17–3 at 2; Sullivan Decl., Ex. A, Doc. No. 22–4 at 2.

 

We will pay on your behalf those sums the “insured” becomes legally obligated to pay for “loss” arising from “claims” resulting from “pollution conditions” caused by “covered operations” performed by the “insured” or any entity for which the “insured” is legally liable.3

 

3. 2006–08 LSI policy, Section ICoverages, Insuring Agreement, Pl. Mot., Ex. 2, Doc. No. 17–3 at 12; Sullivan Decl., Ex. A, Doc. No. 22–4 at 13.

 

The parties agree that the LSI policy insures claims first made against Penn Tank during the policy period, provided Penn Tank reported the claim during the policy period or any applicable extended reporting period.4 The parties also agree that the LSI policy would insure Penn Tank’s liability for a claim made against Penn Tank as a result of one of its trucks accidentally spilling gasoline along the roadway, provided all policy requirements were met. LSI, however, disclaims any obligation to indemnify Penn Tank for its liability for the March 24, 2006 accidental spill based on the following policy terms, conditions, and an exclusion.

 

4. Id.

 

A. A Claim Against Penn Tank Was First Made and Reported During the 2006–08 LSI Policy Period

According to LSI, the March 24, 2006 accident and the FER invoices issued during April–June 2006 constitute a claim made against Penn Tank during the 2004–06 policy period. LSI disclaims coverage because the accident and invoices were not reported to LSI during that policy’s period. According to Penn Tank, its liability for the spill is insured because a claim was first made against it by the FDEP on September 28, 2006, at the earliest, and certainly on December 21, 2006, which claim was timely reported to LSI on December 26, 2006, within the 2006–08 policy period. The question of when the “claim” was first made turns on the LSI policy definition of “claim” as “a written demand received by the ‘insured’ seeking a remedy or asserting liability or responsibility on the part of the ‘insured’.” 5

 

5. The LSI policy defines “claim” in pertinent part as follows:

 

“Claim” means a written demand received by the “insured” seeking a remedy or asserting liability or responsibility on the part of the “insured” for “loss”.

 

2006–08 LSI policy, Section VII–Definitions, Pl. Mot., Ex. 2, Doc. No. 17–3 at 23; Sullivan Decl., Ex. A, Doc. No. 22–4 at 24.

 

The truck accident is not a claim within the meaning of the LSI policy, which insures claims first made against Penn Tank, not acts or events that take place, during the policy period. See Kvaerner, 908 A.2d at 892 n. 1 (“An ‘occurrence’ policy protects the policyholder from liability for any act done while the policy is in effect, whereas a ‘claims made’ policy protects the holder only against claims made during the life of the policy.” (internal quotation marks and citations omitted)); McMillen Eng’g, Inc. v. Travelers Indem. Co., 744 F.Supp.2d 416, 423 (W.D.Pa.2010) (slippage of lateral ground support was not a claim made against the engineering services provider); Bensalem Twp. v. W. World Ins. Co., 609 F.Supp. 1343, 1348 (E.D.Pa.1985) (a “claim” is “a demand for something as of right’ ”) (internal quotation marks and citation omitted)).

 

The FER invoices also are not a “claim” within the meaning of the LSI policy. Although written, the invoices do not meet the definition of a “claim” within the meaning of the insuring agreement of the LSI policy. They demand payment, but not a legal remedy from Penn Tank for services rendered by FER or other contractors at the accident site. They do not assert Penn Tank’s legal liability for the gasoline “pollution conditions” caused by Penn Tank’s truck at the accident site or by any entity for which Penn Tank is legally liable. See City of Pittsburgh v. Am. Asbestos Control Co., 157 Pa.Cmwlth. 235, 629 A.2d 265, 269 (Pa.Commw.Ct.1993) (workers compensation claim, even if brought against the insured within the policy period of a claims-made general liability policy, was not a claim within the policy’s insuring agreement); McMillen, 744 F.Supp.2d at 423, 425 (invoice demanding payment from the insured for costs incurred in repairing damage to a highway, but not asserting the insured’s negligence, did not constitute a “claim”).

 

The FDEP’s September 28, 2006 letter was the first notice to Penn Tank that Florida might hold Penn Tank responsible for environmental contamination resulting from the accident. The letter did not request money or assert Penn Tank’s liability for the contamination that remained at the site. Instead, the letter advised Penn Tank that the matter was being referred to Brevard County and a complete assessment would need to be conducted. At most, this letter provided notice that Penn Tank might be exposed to a claim to follow. Brevard County’s December 21, 2006 letter was the first demand that Penn Tank take action to address the spill’s impact on the environment. Brevard County advised that a failure to conduct a site assessment by February 24, 2007 might result in a formal enforcement action and demanded a written response from Penn Tank in 30 days. On December 26, 2006, Penn Tank reported the claim to LSI within the 2006–08 policy period.

 

Before Penn Tank received Brevard County’s December 21, 2006 letter, no property owner, state or local agency, or other third-party had asserted that Penn Tank was responsible for environmental loss or damage from the accident. Therefore, the undisputed facts show as a matter of law that no claim was made against Penn Tank during the 2004–06 policy period, and a claim was made against Penn Tank and reported to LSI during the 2006–08 policy period.

 

B. Issues of Fact Remain as to Application of the “Known Circumstances and Non–Disclosure” Exclusion and Penn Tank’s Duty to Notify LSI of the Gasoline Spill

LSI contends that the policy exclusion for known pollution conditions that occur prior to the policy’s inception, but are not disclosed to LSI before the policy’s effective date,6 precludes coverage for Penn Tank’s liability resulting from the gasoline spill. LSI also relies on a policy condition that places on Penn Tank the duty to give written notice to LSI “as soon as practicable of any ‘pollution conditions’ which may reasonably result in a “claim’.” 7 These provisions do not require disclosure of all pollution incidents that occur before policy inception. Instead, the insured is required to disclose only those pollution conditions it knew or could have reasonably foreseen would give rise to a claim within the policy’s insuring agreement.

 

6. The LSI policy exclusion of “Known Circumstances and Non–Disclosure” provides:

 

This insurance does not apply to:

 

“Loss” arising from any “pollution conditions” caused by “covered operations” which occurred prior to the inception of this policy, if any “responsible insured” knew or could have reasonably foreseen that such “pollution conditions” would give rise to a “claim” and did not disclose such to us.

 

2006–08 LSI policy, Section II–Exclusions, Exclusion ¶ 7, McSherry Aff., Ex. 2, Doc. No. 17–3 at 14; Sullivan Decl., Ex. A, Doc. No. 22–4 at 15. The policy defines “responsible insured” as “an officer, director or partner of any ‘insured’ “ or “the manager or supervisor of any ‘insured’ responsible for environmental affairs, control or compliance.” 2006–08 LSI policy, Section VII–Definitions, McSherry Aff., Ex. 2, Doc. No. 17–3 at 25; Sullivan Decl., Ex. A, Doc. No. 22–4 at 26.

 

7. The LSI policy condition, “Duties in the Event of any Incident, Circumstance, Event or Claim,” provides in pertinent part:

 

You must see to it that we are notified in writing as soon as practicable of any “pollution conditions” which may reasonably result in a “claim”.

 

2006–08 LSI policy, Section V–Conditions, Duties ¶ 7(a), Sullivan Decl., Ex. A, Doc. No. 22–4 at 19.

 

Pennsylvania courts have not directly addressed the interpretation and effect of these policy provisions. Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302 (3d Cir.2001) and Selko v. Home Ins. Co., 139 F.3d 146 (1998) addressed analogous exclusions under claims-made legal professional liability policies, applying “a mixed subjective/objective standard to determine whether claims were excluded from coverage.” Coregis, 264 F.3d at 306 (citing Selko, 139 F.3d at 152). Although the LSI policy exclusion differs from the ones before Coregis and Selko, the holdings in those cases are applicable here insofar as they instruct a court to consider first the subjective knowledge of the insured and then the objective understanding of a reasonable insured with that knowledge. This same standard will be applied here to determine what Penn Tank subjectively knew about the spill prior to renewal of its insurance on July 1, 2006, and with that knowledge, whether Penn Tank objectively could have reasonably foreseen that the spill would give rise to an environmental enforcement action.

 

There is no question that prior to July 1, 2006, Penn Tank’s CEO knew the accident had occurred and some 8,800 gallons of gasoline had spilled along the roadway. At that time, he understood that clean-up costs could perhaps exceed $400,000. On March 30, 2006, Penn Tank’s field safety supervisor inspected the accident site. On March 31, 2006, the supervisor informed Penn Tank’s risk control manager that a 250 by 65 foot area, 5 to 7 feet in depth, had been contaminated, soil would need to be removed and replaced with clean fill, the groundwater had been impacted, some 20,000 gallons of water would have to be removed, and wells to monitor the groundwater would need to be installed. Penn Tank’s supervisor and manager were also informed that all of the gasoline on the site could not be removed, but natural processes might breakdown any remaining contamination without the need for additional clean-up efforts other than monitoring. In the May 24, 2006 Source Removal Report prepared for Penn Tank, FER recommended further assessment of the groundwater.

 

Prior to July 1, 2006, Penn Tank had received no notices, demands, or communications from any third-party or Florida environmental agency concerning Penn Tank’s responsibility for the spill. General Re had accepted coverage for the costs without any reservation of rights, and FS Insurance through Gallagher Bassett had paid all invoices submitted for clean-up costs. As far as Penn Tank was concerned, the initial spill had been cleaned up and adequately addressed by FER, and all clean-up costs had been fully insured and paid for by FS Insurance. Penn Tank did not expect any liability claim to follow.

 

Penn Tank’s knowledge of the sheer magnitude, extent, and costs of the spill does not conclusively establish an inference that Penn Tank knew it was exposed to potential liability from the spill.8 Moreover, whether or not Penn Tank was in compliance with all environmental rules and regulation is not a controlling factor. Penn Tank, as a reasonable insured trucking company, did not have an express insurance policy duty to be fully cognizant of all applicable laws and regulations at the peril of losing coverage for a pollution incident. The record does not suggest that Penn Tank was unreasonable in relying on FER’s services and recommendations to address the contamination at the accident site.

 

8. Penn Tank contends that before July 1, 2006, it had no reason to believe the March 24, 2006 accident was any different from four previous claims submitted to FS Insurance for truck accidents that resulted in clean-up costs. FS Insurance paid those claims under the General Re policy, without Penn Tank incurring any further pollution liability. J. McSherry Aff. ¶¶ 38, 54. Because the facts about these prior accidents are not before the Court, any inferences based on those accidents would be speculative.

 

Based on Penn Tank’s knowledge prior to July 1, 2006, the primary issue to be decided is whether Penn Tank could have reasonably foreseen that the spill would be a basis of an environmental enforcement action. In this regard, the facts are not so clear that reasonable minds could not differ. A reasonable insured could not have been certain that natural processes would breakdown the remaining petroleum product without the need for additional clean-up. Knowing that some groundwater contamination remained that required monitoring, a reasonable insured might expect the need for additional assessment and corrective efforts. Similarly, because contamination still remained on the site after FER’s initial work, a reasonable insured might have realized that oversight by Florida’s environmental agencies was a possibility. LSI disputes that Penn Tank should have assumed that FER’s efforts had completely resolved the problems presented by contamination of the groundwater. Thus, there are genuine issues of disputed material fact concerning whether Penn Tank could have reasonably foreseen that the spill would give rise to an environmental enforcement action.

 

LSI, the party moving for judgment based on the exclusion, bears the burden of proof at trial that the exclusion applies. In regard to the applicability of the exclusion, the evidence, viewed in the light most favorable to the non-movant, Penn Tank, with all inferences drawn in Penn Tank’s favor, could support a verdict that Penn Tank did not know or could not have reasonably foreseen that the spill would result in a liability claim. If a jury so found, Penn Tank’s failure to disclose the circumstances surrounding the spill would not eliminate coverage for the FDEP’s claim first made and reported during the 2006–08 policy period.

 

Penn Tank, the party moving for a declaration of its entitlement to indemnity under the policy, bears the burden of proof at trial that it complied with the policy duty to provide written notice as soon as practicable of any pollution conditions which might reasonably result in a claim. In this regard, the evidence, viewed in the light most favorable to the non-movant, LSI, with all inferences drawn in LSI’s favor, could support a verdict that Penn Tank should have reasonably foreseen that the spill would result in a liability claim and Penn Tank did not timely provide notice. If a jury so found, Penn Tank’s breach of its duty to notify LSI of the gasoline spill would eliminate coverage for the FDEP’s claim first made and reported during the 2006–08 policy period.

 

Summary judgment is appropriate only if the evidence cannot reasonably support a verdict for the non-moving party. As a matter of law, LSI has not carried its burden to prove that the exclusion applies to preclude coverage, and Penn Tank has not carried its burden to prove its compliance with notice provisions for entitlement to indemnity under the policy. Accordingly, as to whether Penn Tank could have reasonably foreseen that the spill would give rise to a liability claim within the meaning of policy’s insuring agreement, summary judgment will be denied.

 

C. Penn Tank Has Not Forfeited Coverage by Statements or Representations Made in Connection With Its Application for Insurance

LSI contends that in the application for the 2006–08 policy, Penn Tank falsely answered “no” to question 29, which asked if Penn Tank was aware of any circumstances or allegations of its liability, which might result in any claim or demand against it. LSI contends that Penn Tank, by its false answer to question 29, breached the policy’s condition of truthful representation, 9 thereby forfeiting insurance for its liability arising from the accident. It is not clear whether LSI seeks a remedy based on the policy’s language or on a common law theory of rescission.0 In either case, there is insufficient evidence for a reasonable jury to conclude that Penn Tank deliberately made a material misrepresentation that forfeited its insurance.

 

9. The LSI policy condition, “Representations,” provides:

 

By accepting this policy, you agree:

 

The statements in the Declarations, the Application and any material submitted in connection with such Application, which are on file with us, are your agreements and representations, that this Policy is issued in reliance upon the truth of such representations and that this Policy embodies all agreements existing between you and us or any of our agents relating to this insurance.

 

2006–08 LSI policy, Section V–Conditions, Representations, Pl. Mot., Ex. 2, Doc. No. 17–3 at 20; Sullivan Decl., Ex. A, Doc. No. 22–4 at 21.

 

0. LSI denies that it “has sought to rescind or void any policy” and states that “this is not a rescission case.” (Pl. Br ., Doc. No. 22 at 25.) LSI asserts that it has “simply asked this Court to enforce the language of the insurance contracts as they were written.” (Def. Br., Doc. No. 22 at 25.) Nonetheless, LSI marshals facts and presents arguments that appear to advance such a remedy. LSI reserved its rights to assert the defense of rescission based on Penn Tank’s purported failure to disclose pollution conditions at the accident site. (April 30 and May 1, 2007 LSI letters, McSherry Aff., Exs. H, I.)

 

LSI buttresses this position with a fraud-based defense, asserting that Penn Tank purchased insurance for “a known loss which it knowingly failed to disclose to LSI.” (Pl. Br., Doc. No. 18–3 at 21, 13–14, 23–24.) There is a “known loss” when “the evidence shows that insured was charged with knowledge which reasonably shows that it was, or should be, aware of a likely exposure to losses which would reach the level of coverage.”   Rohm & Haas Co. v. Continental Cas. Co., 732 A.2d 1236, 1258 (Pa.2001). The record shows that Penn Tank knew that there was groundwater contamination at the site prior to the policy’s inception. However, the record does not show that Penn Tank knew it was potentially liable for clean-up costs and knowingly failed to disclose material information about the gasoline spill. Material issues of fact remain as to whether Penn Tank reasonably should have been aware of a likely exposure to liability for cleanup costs. Whether Penn Tank should have been aware of a “known loss” remains for the fact finder to determine in regard to application of the policy’s exclusion, “Known Circumstances and Non–Disclosure.”

 

In June 2006, Penn Tank was aware of contamination remaining at the accident site. Although Marsh provided LSI with a trucking application that listed Mr. DeSimone’s accident, neither Marsh nor Penn Tank notified LSI about the gasoline at the site. Based on the information provided by Marsh, LSI provided a renewal premium quotation and bound coverage on June 27, 2006. LSI never cancelled the binder because it had not received a completed application from Penn Tank. LSI issued a formal policy to Penn Tank, although the record is not clear when that took place. Thus, the record is not clear whether LSI issued the formal policy without having received a completed application. Some five months after coverage had been bound, Marsh presented Penn Tank with an application form for the policy. The signature of Penn Tank’s CEO, McSherry, appears on the completed application, but he does not recall if he supplied any of the information or answered any of the questions in the application. The record does not establish when, if ever, the completed application was transmitted from Penn Tank or Marsh to LSI.

 

The validity of the binder issued by LSI through LIU did not depend on receipt of a completed application. A binder provides enforceable insurance pending investigation of the risk by the insurer until a formal policy is issued. Erie Ins. Exchange v. Lake, 543 Pa. 363, 671 A.2d 681, 685 n. 7 (Pa.1996); Strickler v. Huffine, 421 Pa.Super. 463, 618 A.2d 430, 433 (1992) (“It is well settled in Pennsylvania that a binder constitutes evidence that insurance coverage has attached at a specific time and continues in effect until either the policy is issued or the risk is declined and notice thereof is given.”), appeal denied, 536 Pa. 630, 637 A.2d 290 (Pa.1993). “It is the custom of the insurance industry, and sound public policy, to provide on-the-spot temporary insurance coverage in the form of a binder until the application information can be verified and a formal policy issued.” Klopp v. Keystone Ins. Cos., 528 Pa. 1, 595 A.2d 1, 4 n. 5 (1991). LSI never canceled the binder or declined the risk because it had not received a completed application. By the time Brevard County asserted a claim against Penn Tank on December 21, 2006, Penn Tank’s rights had vested, under either the binder or the 2006–08 policy replacing the binder. See Fire & Cas. Ins. Co. of Conn. v. Ligon, 86 Fed. App’x 517, 520 (3d Cir.2004) (applying Pennsylvania law).

 

Penn Tank cannot be retroactively stripped of its vested rights unless and until LSI rescinds the policy based on information supplied in the application process. Thus, whether based on the common law remedy of rescission or the policy’s condition of truthful representation, LSI’s defense sounds in rescission based on alleged misrepresentation and fraud. “The burden of proving fraud is on the insurer who must prove, by clear and convincing evidence, that on the application, the insured knowingly made false statements or knowingly failed to disclose information which was material to the risk against which the insured sought to be protected.” Rohm & Haas Co. v. Continental Cas. Co., 732 A.2d 1236, 1251 (Pa.1999). “In order to show a policy is void ab initio on the basis of fraud, the insurer must prove that the intent to deceive was deliberate.” Id. (citing Grimes v. Prudential Ins. Co. of Am. ., 401 Pa.Super. 245, 585 A.2d 29, 33 (Pa.Super.Ct.1991).

 

Mere mistakes, inadvertently made, even though of material matters, or the failure to furnish all details asked for, where it appears there is no intention of concealing the truth, does not work a forfeiture, and a forfeiture does not follow where there has been no deliberate intent to deceive, and the known falsity of the answer is not affirmatively shown.

 

Grimes, 585 A.2d at 33 (internal quotation marks and citation omitted). “The clear and convincing standard of proof is sufficiently met if the evidence presented was ‘so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Rohm & Haas, 732 A.2d at 1252 (quoting Lessner v. Rubinson, 527 Pa. 393, 592 A.2d 678, 681 (Pa.1991) (internal quotation marks and citations omitted)).

 

Examination of the record does not disclose that the contamination at the site was material to the risk for which insurance was sought and bound. Although LSI requested an application, it relied on other information provided by Marsh to formulate a renewal premium quotation and bind coverage. Even though the binder stated that continuation of coverage was subject to receipt of an application, the record does not establish whether the formal policy was issued before or after LSI’s receipt of an application. The record does not suggest that had LSI been informed about the spill, it would have charged an increased premium or it would not have issued the binder or the formal policy.

 

Examination of the record also does not disclose a deliberate intent on Penn Tank’s part to deceive LSI. During the renewal process in June 2006, Penn Tank did not believe that it had any reason to pursue a claim under the LSI policy. General Re through FS Insurance had agreed to indemnify Penn Tank for the costs associated with clean-up of the site, without reservation of rights, and all invoices submitted for the costs were paid. Penn Tank had not received any notice, claim, or other demand that purported to hold it responsible for the spill. As far as Penn Tank was concerned, there was no information about the spill to disclose. Moreover, Penn Tank did not conceal information about the occurrence of Mr. DeSimone’s accident, which was included in the trucking application forwarded by Marsh to LSI. Penn Tank did not believe that the spill could result in its liability until it received the FDEP’s September 28, 2006 letter. Even assuming Penn Tank’s CEO answered question 29 in the application, which has not been shown, Marsh instructed Penn Tank to complete and post-date the application July 1, 2006, the effective renewal date. Question 29 asked for a statement of what the insured was subjectively “aware.” The answer to question 29 is consistent with the facts Penn Tank believed to be true when coverage was bound and the policy became effective on July 1, 2006.

 

LSI, the party moving for judgment based on the policy condition of truthful representations, bears the burden of proof at trial, by clear and convincing evidence, that the condition was breached and the insurance procured should be rescinded. LSI has failed to meet its burden of proof. Accordingly, summary judgment will be entered in favor of Penn Tank on LSI’s claims that Penn Tank knowingly made false statements or knowingly failed to disclose information which was material to the risk against which Penn Tank sought to be insured.

 

In accordance with the rulings above, summary judgment and a declaration of the parties’ respective rights will be entered. An appropriate Order accompanies this Memorandum.

 

Court of Appeal, Fifth District, California.

Michael BREAZELL, Plaintiff and Appellant,

v.

John MARQUEZ et al., Defendants and Respondents.

 

No. F058491.

(Fresno Sup.Ct.No. 09CECG00858).

June 2, 2011.

 

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Judge.

 

Michael Breazell, in pro. per., for Plaintiff and Appellant.

 

No appearance by John Marquez and Cora Marquez, Defendants and Respondents.

 

OPINION

POOCHIGIAN, J.

STATEMENT OF THE CASE

On or about March 5, 2009, the Labor Commissioner of the State of California filed an order in state case No. 04–45258 bm. The Commissioner ordered that appellant Michael Breazell take nothing by virtue of his complaint against respondents John Marquez and Cora Marquez, each individually doing business as J & C Transport.

 

For the sake of clarity, John Marquez will be referred to as “John Marquez” or “Marquez,” Cora Marquez will be referred to as “Cora Marquez” or “Mrs. Marquez,” and their son, Jacob, will be referred to as “Jake” or “Jake Marquez.”

 

On June 12 and 26, 2009, the Fresno County Superior Court conducted a contested trial de novo of appellant’s claim against the Marquezes.

 

On June 29, 2009, the superior court filed a judgment following the Labor Commissioner’s order finding respondents delayed appellant’s final wage payment by three days and ordering that respondents pay appellant a penalty under Labor Code section 203 of $465 ($15.50 x 10/hours per day x 3 days).

 

On July 30, 2009, appellant filed a timely notice of appeal.

 

A judgment following a trial de novo under Labor Code section 98.2 is an appealable order. ( Peer v. California Industries for the Blind, Inc. (1979) 95 Cal.App.3d 945, 946–947.)

 

STATEMENT OF FACTS

Findings of Fact of the Labor Commissioner

The following facts are taken from the order, decision, or award of the Labor Commissioner dated March 5, 2009:

 

“The Plaintiff was employed by the Defendants to perform personal services as a Truck Driver, for the period August 7, 2008 through November 28, 2008, in the County of Fresno, California, under the terms of an oral agreement at the promised rate of compensation of $15.50 per hour. The Plaintiff quit his employment without notice on November 28, 2008, and was paid his final conceded wages when he returned on December 1, 2008.

 

“The Plaintiff testified that during the period August 7, 2008 through November 28, 2008, he worked a total of 71 days (71 days x $15.50 per [hour per] day = $1,100.50), in which he did not receive meal periods. He testified that he was pressed by the Defendant to make deliveries on time, and that there was no relief or any bookkeeping record of him taking meal periods. He further testified that he was told not to log meal periods, as it would take away from his time. The Plaintiff also testified that because of the schedule he had, that he could not take meal periods and make his deliveries on time.

 

“The Defendants disputed that the Plaintiff did not take meal periods. Defendant John Marquez testified that he at times took the Plaintiff to breakfast and lunch. He further testified that the Plaintiff had taken meal periods with other drivers when they were in Marysville, California. He also testified that loads were scheduled for enough time for the drivers to make stops for meal periods, and that the Plaintiff did take meal periods. He also testified that he informed his drivers about local restaurants near the delivery locations, and that it was posted on the bulletin board at work that the drivers were to take meal periods. He also testified that he did tell the drivers not to indicate on their driver logs when they stopped to eat, and if they did they would not be paid for that half hour. He also testified that he did this so that he would not have to deduct a half hour worth of pay from that day.”

 

Facts Elicited at the Trial De Novo in Superior Court

 

Labor Code section 98.2 provides for a de novo trial in superior court on appeal from an order or decision by the Labor Commissioner. This means the superior court proceedings constitute a new trial and the parties may introduce any relevant evidence not presented at the administrative hearing. The findings of the Labor Commissioner are entitled to no weight, and review is accorded to the facts presented to the superior court and not to the decision of the Commissioner. ( Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 725.)

 

Appellant testified he started working for J & C Transport on August 7, 2008. The firm was involved in the hauling of petroleum products and aluminum and wiring for Pacific Gas & Electric Company. In September, appellant spoke with Jacob “Jake” Marquez, the J & C Transport dispatcher and son of the company’s co-owners. Appellant told Jake he needed to take a break and get something to eat because appellant had “been running hard.” Appellant asked for the company’s policy on breaks because he had never received anything in writing about breaks, lunches, and similar matters. Jake told appellant he could not take a break because Jake needed appellant “to deliver this load, get done with it, do a turn around, and do another one.” Appellant told Jake he had to schedule loads to allow for appellant to take meals and breaks. According to appellant, Jake said, “I don’t have time to schedule it for that because the load is not scheduled for this time and you just have to do it.”

 

Appellant said he was forced to comply to keep his job. Appellant then spoke with J & C Transport co-owner John Marquez and the latter said, “[Y]ou got to just do what he [Jake] tells you, you know, just do what he tells you.” On another occasion, appellant told Jake, “Jake, you know, this is not right, but I got to do what I got to do. I got a family, I got kids, you know that…. I’m going through a whole lot right now.”

 

Appellant said he worked 71 16–hour days between the date of his hiring, on August 7, 2008, and the date of his departure, on November 28, 2008. The court asked appellant, “[Y]our theory is because of the [work] environment and what Jake said, you couldn’t take them [rest and meal breaks]. Is that your position?” Appellant responded, “Yes, your Honor.” In appellant’s view, the company’s scheduling of hauling trips made it impossible for drivers to take breaks.

 

John Marquez testified his firm hired appellant as a driver and maintained appellant was given time to take his breaks. Marquez explained:

 

“[T]here was an occasion where I personally drove to where he was at, paid for a motel for him so he could rest adequately instead of sleeping in the truck after he had been out three or four days, at a time and he stayed in a motel[;] he ate at the motel. [T]here was … two different times that he had refused me to buy him lunch because he stated that he just didn’t have time, and I said, no Mike, come and sit down. I had caught a couple of other drivers that were working at that time on this job and I said you guys stop, we’ll take a break … we’ll stop at Frazier Park, there’s a little restaurant there, and I took them to lunch. And, finally, Mike came and sat down and took a break probably 15 minutes or maybe even an hour and a half, whatever it was he took a break at the refinery. At the refinery at [Valero] and Wilmington.”

 

John Marquez said there were occasions when a refinery was shut down and drivers were required to wait outside the refinery plant. According to Marquez, “You park, go to sleep, eat your lunch or whatever you may want to do. If you want to sit in your truck all day, that’s up to you, but they don’t make you-they don’t monitor you.”

 

Marquez maintained appellant’s allegations against him were untrue. To address concerns about possible discrimination against appellant, Marquez said his company advanced funds to appellant when he was in financial need, even though the company did not have a policy to do so. Marquez also said he gave appellant a ride from work to home on at least one occasion and provided appellant with some tires so he would have personal transportation to and from work.

 

When asked about Jake’s alleged statements to appellant, John Marquez said appellant was in control of the truck, and if he was unable to fulfill a request from Jake he was to respond or call in and say, “ ‘I just can’t do that part.’ “ According to John Marquez, appellant asked for extra work and “worked 16 hours when other guys were doing the work in 14 hours or 13 hours.” John Marquez said appellant “wanted the monies.” Cora Marquez, co-owner of J & C Transport, said their firm paid by the hour and not the load. She explained, “So if he asked for a 16–hour day, we paid him. We paid him whatever he put down on his trip sheet. It’s not like we told him, you know, you have so many loads to do.” John Marquez added, “He doesn’t show time off when he’s sitting at a refinery and not performing a function, he’s still getting paid. He’s always getting paid. If he’s getting paid 16 hours, it might be that he was sitting at a refinery for four hours and not performing a job function other than sitting in the truck.”

 

 

The court asked John Marquez whether a driver was required to stay with a truck while it was being loaded with fuel at a refinery. According to Marquez, a driver was allowed at the “rack” (the area for loading or unloading fuel) only when the refinery operator was present. In the absence of the operator, a truck driver was required to stay outside the fenced area of the refinery. In such situations, the driver could eat lunch, go to a restaurant, or take a nap. Marquez said the driver could not leave the truck unattended but could go to a restaurant in the vicinity of the truck.

 

John Marquez said he reminded drivers to take breaks and meal periods when they conferred during safety meetings and when he visited them in the field. As to the latter, he explained:

 

“We could go to a nearby restaurant, go stop and go eat. Just letting them know that they had time. If there’s time to stop and eat, stop and eat, take your break, take water with you, take your food.

 

“Mike [appellant] carried his lunch with him. He would pack the truck with his staples, I guess you would say. He drove a big sleeper truck. That, to my knowledge, he just didn’t want to go to the restaurant because he said it was too much trouble. I mean, I can’t make a person eat if they don’t want to eat. I can’t make a person take a break if they don’t want to take a break. I pay them to do it. I don’t ask to see how much time you took off, write down something that you took a break so I can look at that. I’m not there. I’m just not there. I just take it by their word that they take their breaks.”

 

In response, appellant disputed John Marquez’s claim that a truck driver could have food or drinks while on duty at a refinery site. Appellant acknowledged that other drivers probably stopped at the motel mentioned by John Marquez but appellant said he did not do so because his scheduling was different. Appellant further testified that his “stamped bills” would demonstrate that he did not stay at motels or take restaurant meals with other J & C Transport drivers.

 

Appellant disputed the Labor Commissioner’s conclusion that he quit his job the day after Thanksgiving 2008. Appellant said he was “let go” because of a “previous issue that happened months prior.” John Marquez testified appellant was involved in two different incidents with respect to other businesses. The first incident took place in August 2008 and involved Prince Co., a business neighbor of J & C Transport. Appellant went to hook up a trailer that extended across the street to the neighbor’s place of business. When appellant pulled out of the neighbor’s freshly-paved driveway, he did not roll his landing gear all the way up and gouged a four-inch deep, 12–foot long hole in the driveway. The neighbor telephoned John Marquez about the incident and said not to worry because the neighbor was willing to call the paver back in to repave the gouged portion. A week later, appellant went to pick up another trailer from that neighbor and again failed to completely roll up his landing gear. John Marquez admonished appellant about the matter.

 

The second incident took place in September 2008 and involved Kaiser Aluminum in Gardena, California, another J & C Transport customer. Appellant was at Kaiser to pick up a load of aluminum. After the product was loaded, Kaiser staff asked appellant to remove his tarps so they could recount the load. Appellant became upset with the Kaiser forklift driver and supervisor because he had to untarp his load several times. John Marquez said appellant was taking off his hat and stomping around. John Marquez happened to be present that day and tried to calm appellant down. Appellant became upset a second time because the forklift driver did not perfectly center the load on appellant’s trailer. Marquez said the load was three-feet high and weighed 22,000 pounds. One side of the load was 12 inches from the edge of the trailer and the other side was 18 inches from the edge of the trailer. The forklift driver said he could not center the load more precisely. Marquez said appellant calmed down, got squared away, and finally departed from Kaiser Aluminum. At that point, the supervisor called Marquez in and said he never wanted appellant on the premises again. The union forklift driver filed an informal grievance as a result of the incident and took time off.

 

According to appellant, he had to deal with forklift drivers from two different shifts. The first driver “could not finish the load, kept messing up, he went home. The guy that went home on the second shift came in, completed my load, and then I was able to get out of there by midnight.” Appellant said he called John Marquez “at least 10, 15 times” during these difficulties and Marquez said “just sit there and do what you got to do.”

 

Marquez said after the two incidents, J & C Transport picked up work from a butane firm known as Energy, and J & C Transport was responsible for transporting isobutanes from Energy to the Valero Refinery in Wilmington. Marquez testified:

 

“… Mike was really happy he was going to have all this work, and he could stay busy doing that. I told him you could work to your heart’s content, two loads a day, five days a week, work your 50, 60, 70 hours and take your 34 off if you want, and go back again. It’s all-it’s all within the law, work his hours, take your time off, and go back to work. And he says I want to do that because I’m losing my house, I’m being evicted, I need the work, on and on. And during some of that time he needed advance money so we had advanced him.”

 

Later in his testimony, John Marquez testified, “The maximum hours [a truck driver] can work a week is 80 hours in the State of California. If they work interstate, then it would be to 70 hours for ten days, prior to coming back in California.” Marquez also testified that after working 80 hours, a driver was required to rest for 34 hours.

 

Marquez said appellant asked for Thanksgiving Day off, but Marquez explained the J & C Transport staff was going to be busy all through the winter months. Appellant initially accepted Marquez’s explanation but again asked for Thanksgiving Day off as the holiday approached. Marquez explained that other employees had seniority and should have first priority to take the holiday. Appellant nevertheless insisted he was going to take the holiday off. According to John Marquez, appellant worked the Tuesday and Wednesday morning before Thanksgiving and then told Jake Marquez he needed to be off through Saturday. Jake said appellant had to work, but appellant insisted he was not going to do so. John Marquez ended up taking appellant’s place on Thursday.

 

John Marquez said appellant called Jake on Friday and asked what time he would go out on Saturday. Jake told appellant he was not going out on Saturday. When appellant offered to come in that day, Friday, Jake said the day had already been scheduled. At that point, John Marquez told Jake, “[T]hat’s it, I’m done with Mike. I’ve already bent over backwards to try and help him. I’ve done everything I can do for him, it’s just not good enough. [I]f he wants to be at a job where he doesn’t have to work weekends and holidays, he has to work somewhere else, not here.”

 

John Marquez said J & C Transport could not process appellant’s paycheck on the Friday after Thanksgiving because his firm handled its payroll through ADP service, which was closed through the holiday weekend. Although appellant turned in his hours on Friday, ADP could not process his check until the Monday after Thanksgiving. John Marquez explained, “[T]hat was the quickest it could be done because that was the holiday. It was Thanksgiving. It was not because we deprived him of not paying him.”

 

Near the conclusion of the trial, Melissa Griego, the J & C Transport billing and payroll employee, testified she was present when appellant left his employment. According to Griego, appellant entered the J & C Transport office, and Cora Marquez asked him whether the firm owed him any money. Appellant said, “You owe me eight hours.” According to Griego, Cora Marquez went to her checkbook and manually wrote out a check for appellant. Appellant maintained he did not receive any pay on his last day of work. He said “it was days after.”

 

Jake Marquez testified at continued proceedings on June 26, 2009. Jake testified his duties at J & C Transport included helping with dispatch, conducting maintenance, and handling driver logs. Jake did not recall telling appellant in August 2008 that he needed to continue driving, despite appellant’s completion of a back-to-back drive. Jake said he did not recall telling appellant he could not take a break. However, Jake was concerned that appellant “was milking the clock a lot.” Jake said J & C Transport did pay for motel rooms for their drivers. With respect to appellant, Jake testified, “If he was on a run with all the other drivers, he would be in with them, we would get a room for the drivers that were on the run doing the job, and he would get treated just like everybody else.”

 

When appellant asked Jake about alleged milking of the clock, Jake testified, “[W]e typically don’t like our drivers to hang around at the yard. And I’m sure we let you know that. We try to do it in a nice way. We’re always, you know, we treat our drivers fairly, work is work, and when you’re done with work, you know, for your benefit and for benefit of everybody else, it’s just good to, yeah, clean your truck up, but then go home, you know.”

 

With respect to Jake’s oversight of logbooks, Jake said there had been a few disciplinary actions for logbook violations. Jake did not think that anyone had been terminated for a logbook violation because “for us to fire somebody it has to be quite a bit. The driver must be doing something wrong….”

 

Appellant’s fellow driver, Adrian Munoz, testified he remembered being at Kaiser Aluminum with appellant and John Marquez on a particular occasion. Appellant was the first driver to arrive at Kaiser and Munoz came between 1:15 and 2:00 p.m. Munoz helped appellant tarp the latter’s truck while a Kaiser employee loaded the trailer. Munoz said his truck was parked outside the facility at the end of the street when he helped appellant. Munoz remembered that he and appellant had to remove the tarp because they had to add and remove product from the trailer and change the load. Munoz did not remember appellant having a conversation with the forklift driver. Munoz did remember that John Marquez left first because he drove up, dropped off one trailer, and picked up another trailer. Munoz said he and appellant had not taken breaks and lunches together when there were working together.

 

On cross-examination, Munoz said John Marquez encouraged him to take a break or get lunch when he was required to wait multiple hours at Kaiser Aluminum. On redirect examination, Munoz explained that he typically did not stop for a sit-down meal because he did not like to eat by himself. Instead, he would go to a truck stop to refuel his vehicle, pick up some food to eat, and then log about 15 minutes for the stop.

 

Appellant’s fellow driver, Chance Davis, testified he did not recall stopping and having lunch with appellant. Davis said he normally did not stop for sit-down meals. Rather, he would pick something up along the way or have food in his truck. Davis recalled stopping at Rocky’s Restaurant in Frazier Park with John Marquez, appellant, and fellow drivers, Leroy Duerksen and Robert Tapia. Davis indicated this took place on an early afternoon in 2008. All of the drivers present were handling butane and the meal lasted at least 45 minutes. Davis also remembered sharing a room with appellant at the Best Rest Inn in Lebec on November 12, 2008. Davis said the room was adequate for drivers, had two beds and a shower, and the motel provided breakfast in the morning. Davis added that he did not “go to the motel unless it was my 34 [hours off], otherwise I stayed in the truck.” On recross-examination, Davis said his meals were generally “grab and go” rather than sit-down and he did not take 30–minute breaks. Davis was aware that anything over 15 minutes should be logged.

 

Appellant’s fellow driver, Carl Carr, testified that he and appellant never had a rest or meal break together that lasted 30 minutes. Carr explained:

 

“In the process of driving truck when you get paid by the hour, if two trucks are at the same spot at the same time, the boss is losing double pay, so we’re scheduled to be at different places at different times, so when we get together it’s usually that we’re crossing paths. And I have crossed paths with Mike [appellant], but never for a lengthy time, except for the aforementioned 34–hour layover at the truck stop. I mean, at the motel, at Frazier Park on the way back….”

 

On cross-examination, Carr remembered a day in August or September 2008, when he and appellant delivered wire to West Sacramento and Marysville. Carr went to West Sacramento, and appellant went to Marysville. Carr said appellant left an hour early in order to get an hour of rest before PG & E opened its Marysville facility at 7:00 a.m. Carr said if he arrived at a customer’s facility in advance of an early-morning appointment, he would probably update his logbook and take a nap or go to sleep if the truck had a sleeper. Carr said he would typically get something to eat on his way home or if it was really early in the day.

 

Carr remembered one occasion when he and appellant were driving their trucks from Northern California and both stopped in Livingston. Carr said he stopped to use the restroom facilities and saw appellant buying food to go. Carr also bought food to go and followed appellant’s truck back to the J & C Transport yard in Fresno. As to deliveries of wire to PG & E, Carr said it would take four and one-half hours to safely travel from the PG & E Marysville facility to Fresno. Carr also said that it would take approximately one hour to unload a shipment of wire at the PG & E facility. On recross-examination, Carr said that PG & E set specific appointment times for delivery of materials by truck. Carr added, “I have never spent more than an hour there at PG & E.” Carr also said if he arrives early at the Marysville PG & E facility, “I’m expected to do that on my own time. [T]hat’s free gratis.” Carr explained, “[T]hat’s perfectly normal for a guy to leave early. When you leave at 3:00 o’clock in the morning to go somewhere and to allow yourself an hour nap so that you’re not tired all the way home, you know. You’ve got to drive four hours each way.”

 

Appellant’s fellow driver, Leroy Duerksen, testified he and appellant never “ran together” where they could take a break or lunch of 30 minutes or more, with the exception of the time when a group of drivers met, ate, and rested in Frazier Park. On cross-examination, Duerksen testified he stayed at the Best Rest Inn in Lebec in November 2008. Duerksen said he took his “34 hours layover there when I was down there for three weeks.” Duerksen said he used the 34–hour period to sleep, eat, clean his clothes, and other things. Duerksen remembered appellant stopping at the Best Rest to take a shower. Duerksen and other drivers, including Chance Davis and Carl Carr, ate together at Rocky’s Roadhouse.

 

On redirect examination, Duerksen said a driver is supposed to log anything over 15 minutes. Duerksen said he was on his 34–hour layover in Lebec in November 2008, but appellant was not.

 

Factual Findings of the Superior Court After Trial De Novo

The following facts are taken from the “LABOR COMMISSION APPEAL JUDGMENT” filed by the superior court on June 29, 2009:

 

“… RESPONDENTS employed PETITIONER as a truck driver from August 7, 2008 to November 28, 2008 under the terms of an oral employment agreement at the promised rate of $15.50 per hour. The PETITIONER was terminated from employment for various infractions, the final being the owner’s frustration that Mr. Breazell would not work on Thanksgiving and he and the other drivers had to. It was uncontradicted that the owner’s son, Jake, told Mr. Breazell that he could take the Thanksgiving Day holiday off.[ ] The driver’s log also revealed that PETITIONER was at the hour maximum for driving and could not have driven on Thanksgiving day without violating the law.

 

Despite this finding, there was conflicting testimony on the issue of whether there was an agreement as to the day off. John Marquez stated: “… Mike worked all the way until Tuesday or Wednesday morning [before Thanksgiving]—it was Tuesday—I think he arrived in Bakersfield to reload at midnight, which would have been Wednesday morning, and he ran out of hours. So he stayed there and … then in order to finish up his hours, he was able to get back to Fresno on Wednesday morning, but that would be the day before Thanksgiving. And he came in and he left, he told Jacob, I need to be off through Saturday, I can’t come back to work. And Jake told him, well, my dad wants you to work, you have to work. And Mike [said], well, I’m not going to work. So [with appellant] having said that, I said, well, fine, if you can’t work, I guess I have to go. [¶] So I went and worked in Mike’s place, and I wasn’t happy about it, but it’s my company and I have to take care of my customers.”

 

“PETITIONER contended that with his driving schedule, he was not able to take meal or rest periods. Further, that the owner’s son, Jake, on one occasion told him not to take a break, that he just had to drive straight through.

 

“RESPONDENTS disputed PETITIONER’S claim regarding meal and rest periods. John Marquez testified that he did encourage his drivers to take breaks, that he too was a driver and that there were many times during the day that was ‘down-time’ when the drivers were still on the clock (i.e. getting paid) and were able to rest, eat or do whatever they wanted to with their time. RESPONDENTS brought four drivers in to court to testify and they all agreed that they had ample time to rest and that they chose to eat on the go though they could stop and eat if they chose to. One occasions where all of the drivers were together, in Frasier Park, owner John Marquez had lunch with all of them, including PETITIONER and purchased the lunch. Also during that occasion, RESPONDENT paid for PETITIONER to sleep with the other drivers at a Best Rest Inn rather than sleeping in the sleeping cabin of his truck.”

 

Judgment of the Superior Court

The superior court stated in its judgment filed June 29, 2009:

 

“The California Supreme Court is currently considering the issue of an employer’s duty to provide meal and rest periods in the case of Brinker Restaurant Corp. v. Superior Court, (Cal.App.4th Dist.2008) 165 Cal.App.4th 25. [ ] Until that case is decided, the State of California law is such that an employer is required to offer breaks, but not force employees to take them. ‘Accordingly, the court concludes that the California Supreme Court, if faced with this issue, would require only that an employer offer meal breaks, without forcing employers actively to ensure that workers are taking these breaks. In short, the employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them regardless of the reason.’ ( White v. Starbucks Corp (N.D.Cal.2007) 497 F.Supp.2d 1080, 1088–1089.)

 

“On October 22, 2008, the California Supreme Court granted review of the California Court of Appeal decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) [S166350]. [¶] … [¶] In its review of the Brinker matter, the California Supreme Court is expected to clarify and confirm, among other things, the extent of an employer’s obligation under Labor Code § 512(a) and the wage orders. Specifically, the Court is expected to confirm whether these statutory and regulatory sections impose upon employers an affirmative duty to ensure that employees actually take the meal period or rather, that the employer’s obligations do not go that far and the employer must make that meal period available to the employee and afford the employee the opportunity to take the meal period.” (Labor Commissioner Angela Bradstreet, memorandum to Division of Labor Standards Enforcement Staff, Oct. 23, 2008.)

 

“The evidence presented here was in conflict, but in total showed that the PETITIONER did have the opportunity to eat and take rest periods. His driver’s logs revealed that he had ample time to do so. As such, the court finds there was no violation of Industrial Welfare Commission Order 9–2001 Section 11(A).”

 

DISCUSSION

THE SUPERIOR COURT DID NOT COMMIT REVERSIBLE EVIDENTIARY ERROR

Appellant contends (a) the superior court on June 12, 2009, ordered respondents to produce stamped bills showing the times when appellant made deliveries to various J & C refinery customers; (b) respondents failed to produce those stamped bills at the June 26, 2009, continued hearing; and (c) the failure to produce the documentation constituted reversible evidentiary error.

 

Evidentiary Ruling at the June 12, 2009, Hearing

At the conclusion of the June 12, 2009, hearing, the court asked respondents to supply certain documents at the behest of appellant. These documents included: (1) proof of a Teamsters Union claim by the Kaiser Aluminum employee; (2) a letter from Kaiser Aluminum and respondents’ response to that letter; (3) meal and hotel receipts for the stay in Lebec; (4) a letter confirming the incident with respondents’ business neighbor Prince Co.; (5) trip logs for J & C Transport employees who were working on the same day as appellant; and (6) time-stamped bills showing when and where appellant made deliveries to J & C transport refinery customers. The court acknowledged that respondents had already provided some trip logs and time sheets for various employees. The court continued the hearing to June 26, 2009.

 

Follow–Up to Evidentiary Rulings at the June 26, 2009, Hearing

The following exchange occurred at the June 26, 2009, continued hearing:

 

“THE COURT: The first date of trial?

 

“MR. BREAZELL:—I requested the records would be for the other drivers that would come in and testify. And I also requested the records … with the date and time from the stamped billing for the petroleum that we were hauling. J & C Transport was supposed to bring those in.

 

“MS. MARQUEZ: I brought them in … for your honor, yes.

 

“THE COURT: Okay.

 

“MR. MARQUEZ: We have them.

 

“THE COURT: All right. What is it that you wanted to see?

 

“MR. BREAZELL: Well, this specific date that they are recalling. I would like to see that on all five of the drivers.

 

“THE COURT: Well, they are confidential employment records. Without a subpoena you’re not going to see them.

 

“MR. BREAZELL: Well, could I ask the Court to?

 

“THE COURT: I’m going to take a look at them, but you’re not going to see them.

 

“MR. BREAZELL: Okay.

 

“THE COURT: You didn’t give consumer notice. You didn’t have a subpoena. But I will look at the records. What is it you’re wanting me to look at? I’m not going to go through their entire business records.

 

“MR. BREAZELL: Well, the specific date that they said that we were all together.

 

“THE COURT: Okay. And he has a receipt. You have the meal receipt? [¶] … [¶]

 

“MR. MARQUEZ: American Express.

 

“THE COURT: Right.

 

“MR. MARQUEZ: That’s more for the motel stays. And there’s also a note from the people at the motel, they volunteered some information, so-

 

“THE COURT: All right. [¶] … [¶]

 

“MR. BREAZELL: Your Honor-your Honor, I’m only asking for that specific time that everybody was at this Rocky’s. And I’m asking for the Court to look at the log books to verify those times are accurate for all the drivers that said that they were there, including me. [¶] … [¶]

 

“THE COURT: … And, Mr. Breazell, what is it about the butane logs that you were looking for?

 

“MR. BREAZELL: Well, your Honor, they testified that we were all together at a certain time, and this was supposed to be I believe 45 minutes, the meeting. [T]hey testified that we were there for 45 minutes. I’m just wanting that to be verified of that date and time.

 

“THE COURT: Well, I certainly see tags from this, from J & C Transport, and butane, different drivers on 11/13 appear to be in the same place.

 

“MR. BREAZELL: And I was supposedly there, too, your honor?

 

“THE COURT: I just saw your name. Actually, I just crossed yours, Mike Breazell, right here, Mike Breazell, 11/15, this would have been on the way out. Michael Breazell, 11/14. So, yeah, this was all that same time.

 

“MR. BREAZELL: Your Honor, that’s—that’s the bills for the pick up and deliveries.

 

“THE COURT: Right. You’re all in the same place there in that area.

 

“MR. BREAZELL: I was referring to this Rocky’s place where this 45–minute meal break was supposed to take place.

 

“THE COURT: I understand. [¶] Okay. Anything else? [¶] … [¶]

 

“MR. BREAZELL: Well, I would like to address the issue of these enforcement measures.

 

“THE COURT: I think we did that at the last hearing. [I] even [have] proof of the [motel] room. Mr. Marquez indicated he checked his records, could not find the meal receipts but was responsive to the Court in terms of asking about the letter [from Prince Co. regarding the gouged driveway], and the proof of the [Kaiser forklift driver’s] claim, Teamsters Union, which is the four items the Court asked for as well as providing documents responsive to Mr. Breazell in terms of the [other J & C Transport] drivers, as well as providing all the drivers for testimony, which he was not required to do, but did so.”

 

Appellant’s Contentions

Alleged Failure to Produce Stamped Bills of Refineries

Appellant initially contends respondents failed to produce stamped shipping bills from the refineries as ordered by the court on June 12, 2009. According to appellant, a transportation firm’s delivery of product to a refinery entails two sets of bills: “From the … transporting company, the truck drivers fill [one set of bills] out by a[n][i]nk pen and the refinery [plants] have … computerize[d] stamped date and [time] … on the bills, all driver[s] get a stamped time in and a stamped time out and the [plant] refinery names will be on the bills to[o], along with the [t]ruck driver[‘s] signed name. The trucking company J & C Transport has to … have two sets of billings and both ha[ve] to match….”

 

Reviewing the reporter’s transcript of the June 26, 2009 hearing, appellant points out the court did not specifically refer to the production of stamped bills from the refineries to which J & C Transport made deliveries. He maintains the stamped bills are relevant evidence, presumably because a comparison of the stamped bills of the refineries and the bills of J & C Transport would reveal discrepancies supporting the claim that respondents did not grant him appropriate rest breaks and meal breaks.

 

The burden of demonstrating error rests upon the appellant. ( Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631–632.) At the June 12, 2009 hearing, appellant asked respondents to produce the stamped bills from the refineries. He explained the reason for his request:

 

“[The actual stamp times] will actually match up to my logs and they will show mileage versus time that there was no time for breaks. It will show that the company did not schedule a time—I’m not saying that the company did not want you to be allowed to take a break, I’m saying that the scheduling, it was impossible.”

 

In response to questioning by the court, respondents said they had brought their driver logs, but not the stamped bills because they were not aware the bills were needed in court. After further inquiry, the court determined that appellant had not obtained an enforceable subpoena for the bills, although the court noted that respondents had complied with another subpoena by providing the driver logs and time sheets. At the conclusion of the June 12, 2009, hearing, the court continued the matter to June 26, 2009, and directed respondents to provide at the latter hearing: (a) the letter from Kaiser Aluminum and the respondents’ response to that letter; (b) proof of the Kaiser forklift driver’s claim from the Teamsters Union; (c) receipts showing respondents provided lodging or meals for appellant; (d) a letter from respondents’ business neighbor regarding the neighbor’s gouged driveway; (e) trip sheets for drivers who would be offering testimony “that they were there and they ate meals or stayed in the hotel the same time he [appellant] did;” and (f) stamped bills showing the date and time of appellant’s deliveries to various refineries.

 

At the continued hearing on June 26, 2009, appellant reminded the court: “And I also requested the records from—with the date and time from the stamped billing for the petroleum that we were hauling. J & C Transport was supposed to bring those in.” Respondent Cora Marquez replied, “I brought them in … for your Honor, yes.” Respondent John Marquez added, “We have them.” The judgment of the superior court filed June 29, 2009, does not specifically refer to the stamped bills from the refineries. A fair reading of the reporter’s transcript reveals the requested documents were delivered to the court. To the extent there is any ambiguity in the record, that ambiguity must be resolved in favor of affirmance. Appellant has not demonstrated error and his contention must be rejected.

 

Respondents’ Alleged Failure to Keep Records of Employee Rest and Meal Breaks

Appellant argues:

 

“The defendant has not proven it [s]upplied the plaintiff with rest and meal breaks periods…. And in regards to rest and meal breaks the defendant claims that it produced admissible evidence proving that it gave the plaintiff his required breaks, Plaintiff disagrees[.] Wage order number 9 requires every employer to keep accurate information [w]ith respect to each empl[o]yee, meal period, split shift intervals and total daily hours worked also be recor[d]ed. [ (Cal.Code Regs., tit. 8, § 11090, subd. 7(A)(3), (C)).] Also[,] where the employer has failed to keep records [r]equired by statute the consequences for such failure should fall on the [e]mployer, not on the employee[.] [I]n such a situation, imprecise evidence by [t]he employee can provide sufficient basis for damages. [ ( Hernandez v. Mendoza (1988) 199 Cal.App.3d 721.) ]”

 

Text of the Applicable Regulation

The regulation cited by appellant states in pertinent part:

 

“7. Records

 

“(A) Every employer shall keep accurate information with respect to each employee including the following:

 

“(1) Full name, home address, occupation and social security number.

 

“(2) Birth date, if under 18 years, and designation as a minor.

 

“(3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.

 

“(4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee.

 

“(5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request.

 

“(6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer.

 

“(B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee’s social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item.

 

“(C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee’s records shall be available for inspection by the employee upon reasonable request.

 

“(D) Clocks shall be provided in all major work areas or within a reasonable distance thereto insofar as practicable.” (Cal.Code Regs., tit. 8, § 11090, subd. 7.)

 

Standard of Appellate Review

A ruling by a trial court is presumed correct, and ambiguities are resolved in favor of affirmance. As noted above, the burden of demonstrating error rests upon the appellant. ( Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at pp. 631–632.) The reviewing court will presume the record in an appeal includes all matters material to deciding the issues raised. An appellant must make an affirmative showing of error by an adequate record. ( Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.) Where the record is silent as to what was done, it will be presumed that what ought to have been done was not only done but rightly done. ( Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760.) The failure to provide an adequate record to support the contentions on appeal and support the appellate arguments with appropriate citations to material facts in the record waives the issues on appeal. ( Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

 

Law Governing Wage Orders

“An employee’s wage rights may be provided for in an employment contract and also are closely regulated by statute. ‘The Labor Code prescribes such matters as the time and manner of paying wages, minimum wage requirements, and mandatory overtime pay….’ ( Cuadra v. Millan (1998) 17 Cal.4th 855, 858, disapproved on another point in Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4; see [Lab.Code,] § 510, subd. (a).) In addition, the Industrial Welfare Commission (IWC) is ‘empowered to formulate regulations (known as wage orders) governing employment in the State of California.’ ( Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 561 (Tidewater ).) The IWC has promulgated 18 orders that remain in force today, 16 relating to specific industries and occupations, one general minimum wage order that applies to all California employers and employees (excluding public employees and outside salespersons), and one order implementing the Eight–Hour–Day Restoration and Workplace Flexibility Act of 1999 (Stats.1999, ch. 134, § 1). (See Cal.Code Regs., tit. 8, § 11000 et. seq.; especially id., § 11090, Order Regulating Wages, Hours, and Working Conditions in the Transportation Industry (hereafter Wage Order No. 9).)” ( Reynolds v. Bement (2005) 36 Cal.4th 1075, 1084, fns. omitted, clarified in Martinez v. Combs (2010) 49 Cal.4th 35, 62–66.)

 

“The Division of Labor Standards Enforcement (DLSE), headed by the Labor Commissioner, is ‘empowered to enforce California’s labor laws, including IWC wage orders.’ ( Tidewater, supra, 14 Cal.4th at pp. 561–562.) The Labor Commissioner is required to determine all matters arising under his or her jurisdiction, including questions concerning the employment status of any wage claimant. ( Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 947, citing [Lab.Code,] § 98, subd. (a).)” ( Reynolds v. Bement, supra, 36 Cal.4th at p. 1084.)

 

Analysis

The regulation cited by appellant—section 11090 of title 8 of the California Code of Regulations—is also known as Industrial Welfare Commission (IWC) Wage Order No. 9. (See Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 952–953.) The wage orders of the IWC regulate wages, hours, and conditions of employment for employees throughout the state. ( Nordquist v. McGraw–Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 561.) The language of IWC Wage Order No. 9 relating to meal periods tracks the governing language of Labor Code section 512, subdivision (a). Wage Order No. 9 requires every employer to keep accurate information with respect to each employee, including meal periods and total daily hours worked. Wage Order No. 9 also sets authorized rest periods based on total hours worked daily at the rate of ten minutes net rest per four hours worked or a major fraction thereof. ( Cicairos v. Summit Logistics, Inc., supra, 133 Cal.App.4th at pp. 953–954.) Wage Order No. 9 specifically notes that “authorized rest periods need not be recorded.” (Cal.Code Regs., tit. 8, § 11090, subd. 7(A)(3)). Nevertheless, an employer could still be liable if an employee did not take full rest breaks because, as a practical matter, the employer did not permit the employees to take their rest breaks. ( Cicairos v. Summit Logistics, Inc., supra, 133 Cal.App.4th at pp. 953–954.)

 

Appellant contends respondents did not keep accurate information on his employment as required by Wage Order No. 9 and did not produce admissible evidence to prove that they gave appellant his required breaks. The record on appeal does not include itemized wage statements or other employment records setting forth appellant’s meal periods, total hours worked, and similar information. Although IWC Wage Order No. 9 requires employers to keep accurate information with respect to each employee, the burden of demonstrating error on appeal rests upon the appellant. ( Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at pp. 631–632.) We must reject appellant’s claim where he has failed to provide this court with a record adequate to evaluate his contention. ( Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132, citing Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575.)

 

With respect to meal breaks, John Marquez testified he used safety meetings to let drivers know that they needed to take breaks and meal periods. He also said he went out into the field, saw his drivers, and let them know that they had time for meals and breaks. Marquez added, “… I can’t make a person eat if they don’t want to eat. I can’t make a person take a break if they don’t want to take a break. I pay them to do it.” Appellant disputed the testimony of John Marquez. When the evidence is in conflict, the appellate court will not disturb the findings of the trial court. The appellate court must consider the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference and resolving conflicts in support of the judgment. ( Nordquist v. McGraw–Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 561.) The testimony of a single witness entitled to full credit is sufficient for proof of any fact unless other evidence is required by statute. (Evid.Code, § 411.)

 

The trial court heard the testimony of appellant and respondents, reviewed relevant documentary evidence, noted a conflict in the evidence presented, and concluded appellant “did have the opportunity to eat and take rest periods.” Appellant vigorously argued that tight scheduling by respondent employers precluded him from taking appropriate rest and meal breaks. To that end, he urged the court to review and compare his logs with the time-stamped bills from various J & C Transport customers. Although appellant did not subpoena all of the relevant documents, the trial court directed respondents to supply virtually all of the documents that appellant deemed critical to his claim. Respondents also arranged for appellant’s fellow drivers to testify regarding the practices of J & C Transport with respect to rest and meal breaks. In view of the conflicting evidence presented by appellant and respondents, we may not disturb the findings of the trial court.

 

DISPOSITION

The judgment is affirmed. Costs are awarded to respondents.

 

WE CONCUR: WISEMAN, Acting P.J., and CORNELL, J.