Appellate Court of Illinois,

First District, First Division.

Debra DOWE, Independent Administrator of the Estate of Sheena Dowe, Deceased, Amausae A. Dowe, a minor, by and through his Custodial Guardian, Debra Dowe, Shalaine Johnson, Shalaine Johnson, as Mother and Next Friend of Jodeon Rouser, a Minor, Robert Munson, Independent Administrator of the Estate of Marie Alvina Munson, Deceased, Kelley Whitaker, Personal Representative of the Estate Jessica Lane Tickle, Deceased, Michelle Piette and Warren Piette, Max Bonnin, Personal Representative of the Estate of June Bonnin, Deceased, Max Bonnin, as Father and Next Friend of Ashley Bonnin, a Minor, Billy E. Adkins, Personal Representative of the Estate of Helena R. Adkins, Deceased, Blanche R. Jones and Derrick Jones, Charlene A. Hempfling, Nancy D. Haigh, Mary Mosley, Individually and as Mother and Next Friend of Ashley Mosley, a Minor, John S. Vant, Executor of the Estate of Virgil Vant, Deceased, John S. Vant, Executor of the Estate of Leona Vant, Deceased, John’s. Vant, Executor of the Estate of Wendy Vant, Deceased, Minnie C. Stewart, Ray Stewart, Jr., Cedric Stewart, Ray Stewart as Conservator of the Estate of Orran Stewart, Deceased, Gail Gordon–Allen and Aaron Allen, Sarah Dudley, Gregory Herman, Individually, Lisa D. Herman, Individually, Lisa D. Herman, Mother and Next Friend of Kristen E. Herman, a Minor, Mother and Next Friend of Kaitlin G. Herman, a Minor, and Mother and Next Friend of David G. Herman, a Minor, Nancy M. Schafle, Dolores Bell and Robert Bell, Susan Falls, Jennifer Falls, John Falls, Andrea Shidle, Joseph Shidle, Marilyn Shidle, John Stolfa, Camille Stolfa, Blanche Fortune, Plaintiffs–Appellants and Cross–Appellees,

v.

BIRMINGHAM STEEL CORPORATION, Defendant–Appellee and Cross–Appellant

National Railroad Passenger Corporation, d/b/a Amtrak, Plaintiff–Appellant and Cross–Appellee,

v.

Birmingham Steel Corporation, Defendant–Appellee and Cross–Appellant.

(Melco Transfer, Inc., and John Stokes, Defendants).

 

Nos. 1–09–1997, 1–09–2006.

Dec. 19, 2011.

 

Appeal from the Circuit Court of Cook County. Nos. 99 L 3194 and 01 L 3100 (cons.), William D. Maddux, Judge Presiding.

 

OPINION

Justice HALL delivered the judgment of the court, with opinion.

¶ 1 This consolidated appeal arises out of a collision between a semi tractor-trailer and an Amtrak  passenger train at a railroad crossing in Bourbonnais, Illinois, on March 15, 1999, at approximately 9:47 p.m. For the reasons that follow, we affirm.

 

Amtrak is officially known as the National Railroad Passenger Corporation.

 

¶ 2 BACKGROUND

¶ 3 The tractor-trailer at issue was driven by John Stokes. Stokes is employed by Melco Transfer, Inc. (Melco). Melco is an independent carrier that employs drivers to haul goods for various companies. Just prior to the collision, Stokes had picked up a large load of 3/4–inch–thick, 60–foot–long steel reinforcing bars, commonly known as rebar, from the Birmingham Steel Corporation (Birmingham Steel). Rebar is a bar or rod of steel used to reinforce concrete. Stokes was scheduled to transport and deliver the rebar to Gem City Steel in Dayton, Ohio.

 

¶ 4 The Amtrak passenger train collided with the rear of the tractor-trailer as Stokes ignored flashing warning lights at the raihoad crossing and attempted to drive through the crossing ahead of the oncoming train. The collision caused pieces of rebar to be thrown onto the tracks derailing the locomotives and most of the passenger cars. Eleven passengers were killed and many others were injured in the derailment and resulting fire.

 

¶ 5 The accident led to the filing of numerous lawsuits that were litigated in the Northern District of Illinois and the circuit court of Cook County. In federal court, Debra Dowe and a number of other plaintiffs (Dowe plaintiffs) filed suit against Amtrak. Dowe v. National Railroad Passenger Corp., No. 01 C 5808, 2003 WL 22383016 (N.D. Ill. Oct 17, 2003). Amtrak, in turn, filed a third-party action for contribution against Binningham Steel, Melco, and Stokes based on the theory that Stokes was acting as an agent for Birmingham Steel at the time of the collision thereby making the steel company vicariously liable for Stokes’ negligent conduct.

 

¶ 6 Meanwhile, in the circuit court, Angela Wilson–McCray, suing individually and as the mother and next friend of her minor son, filed a single personal injury suit against Amtrak, Birmingham Steel, Melco, Stokes and various other entities. Amtrak removed the case to federal court. Wilson–McCray v. Stokes, No. 01 C 1929. Amtrak and Birmingham Steel filed third-party actions against each other for contribution alleging that the other was liable for the negligent acts of Stokes based on theories of agency.

 

¶ 7 The two federal cases were consolidated for pretrial purposes. Wilson–McCray v. Stokes, No. 01 C 1929, 2003 WL 22901569, at(N.D.Ill.Dec. 9, 2003). Birmingham Steel moved for summary judgment on the consolidated federal cases.

 

¶ 8 During the pendency of the federal cases, Dowe and a number of other plaintiffs filed separate lawsuits in the circuit court against Birrningham Steel and the other defendants for personal injury, wrongful death, and survival claims. The separate lawsuits were consolidated in the circuit court for purposes of conducting discovery and motion practice. Dowe v. Birmingham Steel Co., No. 99 L 3194 (Cir. Ct. Cook Co.) Amtrak filed suit in the circuit court against Birmingham Steel, Melco, and Stokes for the economic losses it incurred as a result of the incident. National R.R. Passenger Corp. v. Birmingham Steel Corp., No. 01 L 3100 (Cir. Ct. Cook Co.)

 

¶ 9 Back in federal court, the district court granted partial summary judgment in favor of Birmingham Steel. In regard to the agency issue brought by Amtrak and Wilson–McCray, the district court determined that Birmingham Steel was entitled to summary judgment on all claims premised on the theory of agency after the court concluded that Stokes was not acting as Birmingham Steel’s agent at the time of the accident. Wilson–McCray v. Stokes, 2003 WL 22901569, at *6.

 

¶ 10 The district court also found that Birmingham Steel was entitled to summary judgment regarding the claims made by Wilson–McCray that Birmingham Steel was liable for allegedly: overloading the tractor-trailer; placing nearby railcars in positions that obstructed Stokes’ view of railroad traffic; failing to assist Stokes in safely leaving the steel mill; and negligently entrusting the load of steel to Stokes when it either knew or should have known that Stokes was too sleep-deprived to drive safely. The district court found that Birmingham Steel was entitled to summary judgment on these claims because Wilson–McCray failed to refute the steel company’s contentions that it was not liable on these claims. Wilson–McCray v. Stokes, 2003 WL 22901569, at *2.

 

¶ 11 The district court further concluded, however, that Birmingham Steel was not entitled to summary judgment concerning Amtrak’s cross-claims of direct negligence against Birmingham Steel because Birmingham Steel’s motion for summary judgment failed to address these claims, and its reply brief in which these claims were addressed, came too late. Wilson–McCray v. Stokes, 2003 WL 22901569, at *2. As a result, the district court held that Amtrak’s cross-claims of direct negligence against Birmingham Steel remained pending for trial. Wilson–McCray v. Stokes, 2003 WL 22901569, at *6. Before these cross-claims could be tried, Amtrak settled the personal injury actions pending in federal court.

 

¶ 12 On July 1, 2009, the circuit court granted summary judgment in favor of Birmingham Steel and against Amtrak and the Dowe plaintiffs. The circuit court held that: Stokes was not acting as Birmingham Steel’s agent at the time of the accident; the plaintiffs failed to establish a claim for negligent entrustment because they failed to show that Birmingham Steel had a duty to prevent an allegedly sleep-deprived Stokes from driving out of the steel mill with the load of steel; and the transportation of the oversized load of steel did not create a “peculiar risk” of harm to others such that Stokes’ status as an independent contractor should be ignored.

 

¶ 13 However, the circuit court denied that portion of Birmingham Steel’s motion for summary judgment premised on the doctrines of res judicata and collateral estoppel. The circuit court’s resolution of Birmingham Steel’s motion for summary judgment left remaining Amtrak’s claims against Melco and Stokes.

 

¶ 14 Amtrak filed a timely notice of appeal pursuant to Illinois Supreme Court Rule 304(a) (Ill.S.Ct. R. 304(a) (eff.Jan.1, 2006)), after the circuit court entered an order finding that there was no just reason to delay enforcement or appeal of its ruling granting summary judgment in favor of Birmingham Steel. The Dowe plaintiffs’ notice of appeal and Birmingham Steel’s notice of cross-appeal were timely filed pursuant to Illinois Supreme Court Rules 301 and 303(a)(3). Ill. S.Ct R. 301 (eff.Feb.1, 1994); R. 303(a) (eff. June 4, 2008). These appeals were consolidated for our review. The following issues are presented on appeal.

 

¶ 15 Birmingham Steel argues that the notice of appeal filed by Debra Dowe on behalf of the Dowe plaintiffs was only sufficient to confer appellate jurisdiction over Debra Dowe, as the administrator of the estate of Sheena Dowe, deceased, and was insufficient to confer jurisdiction over the other Dowe plaintiffs. The steel company further contends that the circuit court erred in denying that portion of its motion for summary judgment premised on the doctrines of res judicata and collateral estoppel.

 

¶ 16 Amtrak contends that the circuit court erred in granting summary judgment in favor of Birmingham Steel because there were genuine issues of material fact as to whether Stokes was acting as the steel company’s agent rather than an independent contractor when he drove his truck across the railroad crossing and collided with the train.

 

¶ 17 Amtrak and the Dowe plaintiffs argue that the circuit court erred in granting summary judgment in favor of Birmingham Steel because there were genuine issues of material fact as to whether Birmingham Steel negligently entrusted the load of rebar to Stokes and whether it should be held liable for the actions of Stokes under the principles set forth in sections 413, 416, and 427 of the Restatement (Second) of Torts (these sections contain exceptions to the general rule that an employer is not liable for the negligence of its independent contractor) (Restatement (Second) of Torts §§ 413, 416, 427 (1965)). Finally, the Dowe plaintiffs contend that Birmingham Steel voluntarily assume the duty to scrutinize its drivers and ensure that its product was safely secured on the trucks. Again, we affirm.

 

¶ 18 ANALYSIS

¶ 19 Birmingham Steel initially challenges our jurisdiction over the Dowe plaintiffs other than Debra Dowe. The steel company contends that the notice of appeal filed by Debra Dowe on behalf of the Dowe plaintiffs was only sufficient to confer appellate jurisdiction over Debra Dowe, as the administrator of the estate of Sheena Dowe, deceased, but was insufficient to confer jurisdiction over the 31 other Dowe plaintiffs.

 

¶ 20 Birmingham Steel argues that each of the 32 separate lawsuits originally filed in the circuit court retained its separate identity and that the order consolidating the cases for the purposes of discovery and motion practice did not deprive the cases of their separate identities. Birmingham Steel maintains therefore that separate notices of appeal were required to be filed under Rule 303 for each of the separate bodily injury lawsuits. We disagree.

 

¶ 21 Actions pending in the same court may be consolidated “as an aid to convenience, whenever it can be done without prejudice to a substantial right.” 735 ILCS 5/2–1006 (West 2002). Our courts have recognized three different forms of consolidation: (1) where several cases are pending involving substantially the same subject matter, the court may stay the proceedings in all but one and then see whether the disposition of the one case may settle the others, thereby avoiding multiple trials on the same issues; (2) where several cases involve an inquiry into the same event in its general aspects, the cases may be tried together, but with separate docket entries, verdicts and judgments, the consolidation being limited to a joint trial; and (3) where several actions are pending that might have been brought as a single action, the cases may be merged into one action, thereby losing their individual identities, and be disposed of in one suit. Black Hawk Motor Transit Co. v. Illinois Commerce Comm’n, 383 Ill. 57, 67, 48 N.E.2d 341 (1943); Turner v.. Williams, 326 Ill.App.3d 541, 547, 762 N.E.2d 70 (2001).

 

¶ 22 Our review of the record indicates that even though the original stated purposes for the consolidation was to conduct discovery and motion practice as it related to liability, the consolidation was much broader and actually comes within the third category. To determine whether a particular consolidation was for disposition, the test is whether the cases might have been the subject of a single proceeding or could have been brought as one action. Vitale v. Dorgan, 25 Ill.App.3d 941, 944, 323 N.E.2d 616 (1975).

 

¶ 23 Here, the circuit court consolidated the 32 separate bodily injury lawsuits for disposition by summary judgment. The circuit court’s order granting summary judgment in favor of Birmingham Steel and against Amtrak and the Dowe plaintiffs applied to all of the consolidated cases and it gave rise to only one judgment to be appealed from.

 

¶ 24 If we accepted Birmingham Steel’s position, this would go against the stated purpose of consolidation, which is to expedite the resolution of lawsuits, conserve time, and avoid duplicating efforts and unnecessary expenses. See J.S.A. v. M.H., 384 Ill.App.3d 998, 1004–05, 384 N.E.2d 682 (2008). We find that the notice of appeal filed by Debra Dowe on behalf of the Dowe plaintiffs was sufficient to confer appellate jurisdiction over the 31 other Dowe plaintiffs.

 

¶ 25 We also note that, as a procedural matter, Birmingham Steel’s cross-appeal was improper. Our supreme court has held that “[a] party cannot complain of error which does not prejudicially affect it, and one who has obtained by judgment all that has been asked for in the trial court cannot appeal from the judgment.” Material Service Corp. v. Department of Revenue, 98 Ill.2d 382, 386, 457 N.E.2d 9 (1983). In the proceedings below, the circuit court granted summary judgment in favor of Birmingham Steel as to all claims pending against it, giving it all of the relief asked for in the motion, and therefore its cross-appeal was improper. See Evans v. Lima Lima Flight Team, Inc., 373 Ill.App.3d 407, 418, 869 N.E.2d 195 (2007).

 

¶ 26 Turning to the merits of the appeal, Amtrak and the Dowe plaintiffs contend that the circuit court erred in granting summary judgment in favor of Birmingham Steel because a number of genuine issues of material fact remain in dispute. Summary judgment is appropriate where the pleadings, depositions, and admissions on file, together with any affidavits and exhibits, when viewed in the light most favorable to the nonmoving party, indicate that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2–1005(c) (West 2000); Bier v. Leanna Lakeside Property Ass’n, 305 Ill.App.3d 45, 50, 711 N.E.2d 773 (1999).

 

¶ 27 In ruling on the motion, the circuit court is required to construe all evidentiary material strictly against the movant and liberally in favor of the nonmovant. Tolve v. Ogden Chrysler Plymouth, Inc., 324 Ill.App.3d 485, 489, 755 N.E.2d 536 (2001). Our review of a circuit court’s order granting summary judgment is de novo. Sears Roebuck & Co. v. Acceptance Insurance Co., 342 Ill.App.3d 167, 171, 793 N.E.2d 736 (2003).

 

¶ 28 Amtrak argues that granting summary judgment in favor of Birmingham Steel was improper because a genuine issue of material fact exists as to whether Stokes was acting as the steel company’s agent rather than an independent contractor when he drove his truck across the railroad crossing and collided with the train. We must disagree.

 

¶ 29 The test of whether an individual is an agent or independent contractor is generally a question of fact for the trier of fact. Doyle v. Shlensky, 120 Ill.App.3d 807, 821, 458 N.E.2d 1120 (1983). However, when the facts are not in dispute, the trial court is permitted to decide the issue as a matter of law and grant summary judgment. Stewart v. Jones, 318 Ill.App.3d 552, 561, 742 N.E.2d 896 (2001).

 

¶ 30 Among the factors to be considered in determining this issue are: the right to control the manner in which the work is performed; the right to discharge; the method of payment; who provides the tools, materials, or equipment; the level of skill required to perform the work; and who deducts or pays for insurance, social security, and taxes on the employee’s behalf.   Lang v. Silva, 306 Ill.App.3d 960, 972, 715 N.E.2d 708 (1999); Wheaton v. Suwana, 355 Ill.App.3d 506, 511, 823 N.E.2d 993 (2005). No single factor is determinative, but the right to control the manner in which the work is performed is considered to be the most important factor. Lang, 306 Ill.App.3d at 972; Shoemaker v. Elmhurst–Chicago Stone Co., 273 Ill.App.3d 916, 920, 652 N.E.2d 1037 (1994); Simich v. Edgewater Beach Apartments Corp., 368 Ill.App.3d 394, 402, 857 N.E.2d 934 (2006) (“[t]he right to control the manner in which work is performed is considered the ‘hallmark of agency.’ ”)

 

¶ 31 In this case, the evidence establishes that Birmingham Steel did not retain the right to control the manner in which Stokes hauled steel from the steel mill. Stokes: chose his own route; controlled his own hours; provided and maintained his own equipment; was paid directly by Melco, which also paid his liability and cargo insurance; and performed his job pursuant to rules he received from Melco. In addition, Birmingham Steel had no authority to discharge Stokes from his employment with Melco.

 

¶ 32 Amtrak argues that an agency relationship was established between Birmingham Steel and Stokes through the following: the volume of hauling that Stokes performed for Birmingham steel; Stokes’ assertion that he deemed himself to be Birmingham Steel’s “house” truck; the fact that Stokes hauled all of Birmingham Steel’s oversized loads of rebar; the fact that Melco had a written agreement with Birmingham Steel under which Melco exclusively assigned drivers and trucks; the fact that Birmingham Steel had written rules governing the conduct of drivers at the steel mill and the manner for loading the trucks; and the fact that Birmingham Steel had the right to terminate the services of a driver if it believed the driver was not performing the work in a safe manner, he was impaired, or it received a customer’s complaint.

 

¶ 33 None of these factors gave Birmingham Steel the authority to control the manner in which Stokes hauled steel from the steel mill. See Wilson–McCray v. Stokes, 2003 WL 22901569, at *3–6. Rather, the evidence shows that no agency relationship existed between Birmingham Steel and Stokes.

 

¶ 34 Amtrak and the Dowe plaintiffs contend that genuine issues of material fact remain as to whether Birmingham Steel negligently entrusted the load of rebar to Stokes. They cite to the general rules of liability for negligent entrustment set forth in sections 307 and 308 of the Restatement (Second) of Torts.

 

Section 307 provides:

 

“It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate, or defective, that its use involves an unreasonable risk of harm to others.” Restatement (Second) of Torts § 307 (1965).

 

¶ 35 The Dowe plaintiffs claim that in this case the “instrumentality” was a human being, Stokes himself. They argue that Birmingham Steel was negligent in using Stokes to transport the load of rebar when it knew or in the exercise of reasonable care should have known that he was too physically impaired by a lack of sleep to drive safely.

 

¶ 36 “There can be no recovery in tort for negligence unless defendant breached a duty owed.” Starr v. Ward, 289 Ill.App.3d 299, 304, 681 N.E.2d 1064 (1997). Therefore, the threshold inquiry is whether Birmingham Steel had a duty to prevent an allegedly sleep-deprived Stokes from leaving the steel mill with the load of rebar. Whether a duty exists is a question of law for the court to decide. Gallagher Corp. v. Russ, 309 Ill.App.3d 192, 197, 721 N.E.2d 605 (1999).

 

¶ 37 The Dowe plaintiffs allege that Birmingham Steel had such a duty stemming from its authority to refuse to load a truck or issue a bill of lading where it determined that a driver was too impaired to drive safely. We disagree. Under the circumstances in this case, we find that Birmingham Steel’s authority to refuse to load Stokes’ truck or issue a bill of lading did not create a duty on the part of the steel company to prevent Stokes from leaving the steel mill with the load of rebar based on his alleged impairment due to fatigue.

 

¶ 38 Deposition testimony was presented that Birmingham Steel had previously refused to load a truck because of a driver’s impairment due to intoxication and drunkenness. However, there is no objective means of measuring fatigue like there is for alcohol and drug intoxication. And even if we assumed that fatigue was a factor in the accident, the evidence indicates that Stokes either did not know the extent of his own fatigue or he ignored the risk and continued driving despite experiencing symptoms of fatigue.

 

¶ 39 Stokes indicated that he was not tired at the time of the accident. Ms. Charlene L. Cannon, Birmingham Steel’s shipping clerk, who was one of the last persons to see Stokes leave the steel mill prior to accident, testified at her deposition that Stokes told her that if he became tired he would pull off the road. Ms. Cannon testified that on previous occasions she had seen other drivers come to the steel mill looking tired, but that Stokes did not look tired. Moreover, Ms. Cannon had no information concerning the number of hours Stokes had worked prior to arriving at the steel company. In addition, evidence was presented that Stokes did not appear to be tired after the accident. Under these circumstances, Birmingham Steel should not be charged with having knowledge of Stokes’ alleged impairment due to fatigue.

 

¶ 40 We also note that Stokes was an experienced trucker. He was therefore the person who was in the best position to assess whether he was too fatigued to drive safely. See, e.g., Behrens v.. Harrah’s Illinois Corp., 366 Ill.App.3d 1154, 1157, 852 N.E.2d 553 (2006) (“[a]n employer should be able to presume that the person in the best position to avoid driving while excessively fatigued, the employee, will either ask for a ride from someone or pull off the roadway and rest if necessary”). “Accordingly, on these facts, we do not find that a legal duty existed on the part of Birmingham Steel for which a negligence claim could be properly asserted.” Martin v. Illinois Central R.R. Co., 2006–1495, at 6 (La.App. 4 Cir. 12/19/07); 974 So.2d 741, 745.

 

Section 308 of the Restatement (Second) of Torts provides:

 

“It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.” Restatement (Second) of Torts § 308 (1965).

 

¶ 41 Amtrak and the Dowe plaintiffs contend that Birmingham Steel was negligent in entrusting Stokes with the “activity” of driving the load of rebar out of the steel mill when it knew or in the exercise of reasonable care should have known that he was too physically impaired by a lack of sleep to drive safely. This argument fails for the same reason discussed above: Birmingham Steel’s authority to refuse to load Stokes’ truck or issue a bill of lading did not create a duty on the part of the steel company to prevent Stokes from engaging in the “activity” of leaving the steel mill with the load of rebar based on his alleged impairment due to fatigue, where Birmingham Steel could not be charged with having knowledge of Stokes’ alleged impairment and Stokes himself was in the best position to determine whether he was too fatigued to drive safely.

 

¶ 42 Amtrak and the Dowe plaintiffs next contend that summary judgment was improper because questions of fact exist as to whether Birmingham Steel should be held liable for the actions of Stokes under the principles set forth in sections 413, 416, and 427 of the Restatement (Second) of Torts.  These sections contain exceptions to the general rule that an employer is not liable for the negligence of its independent contractor. See Restatement (Second) of Torts § 409 (1965). The questions here are whether the transportation of an oversized load of steel over the highways was a peculiar risk within the meaning of sections 413 and 416 of the Restatement (Second) of Torts, or an inherently dangerous activity within the meaning of section 427 of the Restatement (Second) of Torts. We must answer in the negative.

 

Section 413 provides:

 

“One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

 

(a) fails to provide in the contract that the contractor shall take such precautions,

 

or

 

(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.” Restatement (Second) of Torts § 413 (1965). Section 416 provides:

 

“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.” Restatement (Second) of Torts § 416(1965). Section 427 provides:

 

“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” Restatement (Second) of Torts § 427 (1965).

 

The Restatement defines “peculiar risk” as follows:

 

“[A] risk differing from the common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions. (See § 413, Comment b.) Thus if a contractor is employed to transport the employer’s goods by truck over the public highway, the employer is not liable for the contractor’s failure to inspect the brakes on his truck, or for his driving in excess of the speed limit, because the risk is in no way a peculiar one, and only an ordinary precaution is called for. But if the contractor is employed to transport giant logs weighing several tons over the highway, the employer will be subject to liability for the contractor’s failure to take special precautions to anchor them on his trucks.” Restatement (Second) of Torts § 416 cmt. d, at 397 (1965).

 

¶ 43 Amtrak and the Dowe plaintiffs argue that Birmingham Steel was negligent in using nylon straps, rather than steel chains, to anchor the load of steel rebar to the flatbed trailer. We disagree.

 

¶ 44 The manner in which the load of rebar was anchored and secured to the flatbed trailer had nothing to do with the cause of the accident. The accident arose from Stokes’ conduct in ignoring the flashing warning lights at the railroad crossing and attempting to drive through the crossing ahead of an oncoming train traveling at nearly 80 miles per hour, where the resulting collision caused pieces of rebar to be thrown onto the tracks derailing the train. In this case, the activity of transporting the oversized load of steel was not a peculiar risk within the meaning of sections 413 and 416 of the Restatement (Second) of Torts.

 

¶ 45 In addition, such activity was not inherently dangerous within the meaning of section 427 of the Restatement (Second) of Torts. Inherently dangerous “work involves the use of instrumentalities, such as fire or high explosives, which require constant attention and skillful management in order that they may not be harmful to others. * * * It is not, however, limited to such highly dangerous activities. The rule applies equally to work which, although not highly dangerous, involves a risk recognizable in advance that danger inherent in the work itself, or in the ordinary or prescribed way of doing it, may cause harm to others.” Restatement (Second) of Torts § 427 cmt. c, at 416 (1965). Transporting a properly secured oversized load of steel over the highway does not fall within this category.

 

¶ 46 The Dowe plaintiffs next contend that Birmingham Steel voluntarily assumed the duty to scrutinize its drivers and to ensure that its product was safely secured on the trucks. The Dowe plaintiffs maintain that Birmingham Steel assumed such a duty based on its authority to refuse to load a truck or issue a bill of lading where it determined that a driver was too impaired to drive safely. Again, we must disagree. There is no evidence that Birmingham Steel undertook any duty in regard to Stokes. Moreover, the record indicates that Stokes’ negligent driving was the proximate cause of the accident, not the manner in which his truck was loaded or the load secured.

 

¶ 47 For the foregoing reasons, the judgments of the circuit court are affirmed.

 

¶ 48 Affirmed.

 

Presiding Justice HOFFMAN and Justice KARNEZIS concurred in the judgment and opinion.

United States Court of Appeals,

Sixth Circuit.

ILLINOIS NATIONAL INSURANCE COMPANY, Plaintiff–Appellant,

v.

OHIO SECURITY INSURANCE COMPANY, Defendant–Appellee.

 

No. 10–3618.

Dec. 21, 2011.

 

On Appeal from the United States District Court for the Northern District of Ohio.

 

Before CLAY, GIBBONS, and WHITE, Circuit Judges.

 

HELENE N. WHITE, Circuit Judge.

Plaintiff Illinois National Insurance Company (“Illinois National”) appeals the district court’s determination on summary judgment that the policy issued by defendant Ohio Security Insurance Company (“Ohio Security”) to its insured Terry Moon (“Moon”) does not provide coverage for Moon’s trucking accident. We AFFIRM .

 

I.

A.

Beginning February 12, 2003, Terry Moon has leased his 1996 Peterbilt tractor and 2001 Retnol trailer to O & I Transport (“O & I”), a motor carrier. At the time of the accident, Moon’s tractor displayed O & I’s identification placard in its window. O & I maintained state-mandated liability insurance with Illinois National. The Illinois National policy states, in pertinent part:

 

SECTION II—LIABILITY COVERAGE

 

A. Coverage

 

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.

 

….

 

[W]e have no duty to defend any “insured” against a “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may investigate and settle any claim or “suit” as we consider appropriate. Our duty to defend or settle ends when the Liability Insurance has been exhausted by payment of judgments or settlements.

 

1. Who Is An Insured

 

The following are “insureds”:

 

….

 

c. The owner or anyone else from whom you hire or borrow a covered “auto” that is a “trailer” while the “trailer” is connected to another covered “auto” that is a power unit, or, if not connected:

 

(1) Is being used exclusively in your business as a “trucker”, and

 

(2) Is being used pursuant to operating rights granted to you by a public authority.

 

d. The owner or anyone else from whom you hire or borrow a covered “auto” that is not a “trailer” while the covered “auto”:

 

(1) Is being used exclusively in your business as a “trucker”, and

 

(2) Is being used pursuant to operating rights granted to you by a public authority.

 

….

 

SECTION V— TRUCKERS CONDITIONS

….

 

B. General Conditions

….

 

5. Other Insurance—Primary And Excess Insurance Provisions

 

a. This Coverage Form’s Liability Coverage is primary for any covered “auto” while hired or borrowed by you and used exclusively in your business as a “trucker” and pursuant to operating rights granted to you by a public authority….

 

….

 

c. Except as provided … above, this Coverage Form provides primary insurance for any covered “auto” you own and excess insurance for any covered “auto” you don’t own.

 

At the time of the accident, Moon maintained a separate “non-trucking use” policy with Ohio Security providing coverage at times when Moon’s tractor was not being used in the business of any trucking company. This policy contains an endorsement stating in pertinent part:

 

A: The following exclusions are added:

 

This insurance does not apply to:

 

2. A covered auto … when being maintained or used (i) at the direction of, under the control of, under orders from, after being dispatched by, or in the business of any trucking company or lessee of such auto….

 

3. A covered auto … when on a return trip to the place it is customarily garaged, or to a terminal or office of a party to whom it is rented, leased, or loaned, or to the home of the Named Insured, after having delivered goods or merchandise under direction, control, or dispatch to anyone other than the Named Insured under this policy.

 

It is not disputed that Illinois National’s policy provides coverage for Moon’s accident. The sole issue is whether Ohio Security’s policy provides coverage for Moon’s accident, thereby rendering Illinois National’s coverage excess only.

 

B.

Throughout the year preceding the accident, Moon customarily parked his tractor and trailer at his home in New Riegel, Ohio. At times, however, he parked his tractor and trailer at the Shell gas station close to his home. O & I paid Moon a flat rate per assignment and Moon usually did not drive for O & I on the weekends. According to Moon’s logbook, on June 15, 2007, O & I dispatched Moon to pick up a load in Marion, Ohio. Moon picked up the load and brought it home. From that point until June 17, 2007, Moon’s logbook states he was off duty. On June 17, 2007, Moon drove the Marion load to Earth City, Missouri, where he delivered the load on June 18, 2007. Moon proceeded to make various deliveries throughout the week without returning home. After each delivery Moon spoke to a dispatcher at O & I.

 

On June 22, 2007, Moon made a delivery in West Virginia then proceeded to pick up another load at Dofasco, Inc. in Marion, Ohio, for delivery in Florida. Moon picked up the load from Dofasco and intended to take it home for the weekend before making the delivery in Florida. However, after Moon loaded his trailer, Dofasco employees discussed whether Moon should leave the loaded trailer at Dofasco so the load would not get rusty by sitting in front of Moon’s house overnight. Moon informed the O & I dispatcher about Dofasco’s concerns and was told to leave the loaded trailer at Dofasco and pick it up Sunday night. Moon then detached his loaded trailer and headed to Upper Sandusky, Ohio to look for a truck wash. After checking a couple of truck stops, Moon was unable to locate the truck wash and began to head home.

 

From the time Moon left Dofasco until the accident, Moon took the same route he would have taken had he traveled directly home without detouring to look for the truck wash—Highway 23 North to Highway 53 North—except for the brief departure and return to his normal route; Moon’s search for the truck wash only took him about a half-mile off Highway 23 North. After his unsuccessful search, Moon returned to Highway 23 North and then exited onto Highway 53 North—his normal route home. At some point along Highway 53 North, Moon collided with a motorcycle. Michael and Janet Reiter, the motorcycle driver and passenger, respectively, were killed. The Reiters’ estate sued Moon and O & I.

 

C.

After the accident, counsel for both Moon and Illinois National wrote Ohio Security demanding Ohio Security pay the limits of Moon’s non-trucking-use policy to resolve the Reiter’s action. Ohio Security refused on the ground that Moon’s policy did not provide coverage because the accident occurred while Moon was returning to his home terminal and acting in the business of O & I. Ultimately, Illinois National defended Moon and O & I in the Reiter’s suit and paid a million-dollar settlement to the Reiters’ estate. The instant lawsuit followed.

 

II.

A.

The parties filed cross-motions for summary judgment. In its order granting Ohio Security’s motion for summary judgment and denying Illinois National’s motion for summary judgment, the district court held that Moon was acting in the business of O & I at the time of the accident because “Moon was traveling on his customary homeward route at the time of the accident, regardless of any earlier detour, and he had informed his dispatcher of his plans to bobtail home prior to the accident.” Illinois National argues that because Ohio Security failed to demonstrate Moon was acting “in the business” of O & I after Moon “abandoned” the load from Dofasco to go home for the weekend and detoured to look for a truck wash, the district court’s decision should be reversed. Ohio Security contends the district court’s decision should be upheld because Moon’s conduct at the time of the accident fell within several of its policy exclusions.

 

We review a district court’s grant or denial of summary judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999). The moving party is entitled to summary judgment “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). “[A] party seeking summary judgment always bears the initial responsibility of informing the [court] of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

 

Neither party disputes the district court’s determination that Ohio law applies. Under Ohio law, “[t]he words and phrases contained in an insurance policy must be given their plain and ordinary meaning unless there is something in the contract that would indicate a contrary intention.” McKeehan v. Am. Family Life Assurance Co. of Columbus, 805 N.E.2d 183, 184 (Ohio Ct.App.2004). When a contractual provision can be reasonably interpreted in multiple ways, it “must be construed strictly against the insurer and liberally in favor of the insured.” Id. However, “to establish a relevant ambiguity, a litigant must put forward a ‘plausible’ competing interpretation of the phrase … not just any interpretation.” Auto–Owners Ins. Co. v. Redlands Ins. Co., 549 F.3d 1043, 1047 (6th Cir.2008). Exclusions should be construed “as only applying to that which is clearly intended to be excluded,” McKeehan, 805 N.E.2d at 185, and the insurer has the burden of establishing the affirmative defense that a policy exclusion applies, Cont’l Ins. Co. v. Louis Marx & Co., Inc., 415 N.E.2d 315, 317 (Ohio 1980).

 

Although Ohio Security argued below that the “in the business” and “being dispatched” exclusions of subpart A(2), and the “return trip” exclusion of subpart A(3), applied to Moon’s conduct at the time of the accident, the district court’s opinion focused solely on the “in the business” exclusion. Because we conclude the district court correctly determined that the “in the business” exclusion precludes coverage for the accident, we will not address whether the remaining exclusions apply.

 

B.

Ohio courts follow the rule announced by the Illinois Supreme Court in St. Paul Fire & Marine Ins. Co. v. Frankart that an owner-driver remains in the business of the carrier-lessee until the owner-driver “returns to the point where the haul originated … to the terminal from which the haul was assigned …, or to the owner-driver’s home terminal from which he customarily obtained his next assignment.” 370 N.E.2d 1058, 1062 (Ill.1977); see also Cincinnati Ins. Co. v. Haack, 708 N.E.2d 214, 231 (Ohio Ct.App.1997).

 

Moon began his outbound journey for O & I on June 17, 2007 and did not commence his return home until June 22, 2007. The accident occurred while Moon was en route home. Despite the fact that Moon was returning home after completing multiple deliveries for O & I, Illinois National contends the Frankart rule should not apply because Moon was not returning home from a delivery at the time of the accident. According to Illinois National, Moon’s pick-up at Dofasco was an intervening event that terminated his return trip from the West Virginia delivery. Illinois National argues that because Moon left his loaded trailer at Dofasco without completing the delivery so that he could go home for the weekend, Moon was on a personal trip, rather than a return trip, at the time of the accident. This argument lacks merit.

 

O & I dispatched Moon on various assignments after he left his home terminal. Under Frankart, Moon remained in the business of O & I until he returned home. The fact that Moon returned home without a trailer attached did not take him out of O & I’s business. See Haack, 708 N.E.2d at 231 (driver returning to home terminal with an empty trailer was still in the business of the lessee). Similarly, Moon’s decision, with O & I’s approval, to return home prior to completing his last delivery did not take him out of O & I’s business. Had Moon merely returned home without making the last pick-up at Dofasco, there would be no dispute that Moon was on a return trip home and thus in the business of O & I. Therefore, it would be illogical to conclude that Moon’s stop at Dofasco to conduct more business for O & I took him out of O & I’s business.

 

Further, Moon’s brief detour to look for a truck wash does not affect this analysis; the accident occurred after the detour was complete and Moon had returned to his customary route home. However, even if the detour were a relevant consideration, this Court has previously found that minor personal detours such as the one here do not take a driver out of the carrier’s business. See Auto–Owners Ins., 549 F.3d at 1046 (driver remained in carrier’s business where he left loaded trailer at delivery site then drove to find a motel); see also Frankart, 370 N.E.2d 1062 (driver’s detour to buy cheap fuel and find additional work from a different carrier did not take him out of dispatching carrier’s business).

 

Lastly, we reject Illinois National’s contention that the district court should have reached a contrary result based on Carolina Cas. Ins. Co. v. Panther II Transp., Inc., 643 F.Supp.2d 953 (N.D.Ohio 2009). The driver in Panther II Transp. was not employed by the carrier at the time of his accident and was neither driving to conduct business for the carrier nor returning from such business. Accordingly, Panther II Transp. is inapposite.

 

III.

In sum, because Moon was acting in the business of O & I at the time of the accident, his policy with Ohio Security did not provide coverage. Illinois National is therefore not entitled to contribution from Ohio Security for the expenditures it paid as a result of Moon’s accident. Accordingly, we AFFIRM the district court’s order denying Illinois National’s motion for summary judgment and granting Ohio Security’s motion for summary judgment.

 

For the same reason, Illinois National is also not entitled to contribution under Ohio Revised Code § 2307.34. Pursuant to that statutory provision, Illinois National may obtain contribution only if the accident occurred while Moon was engaged in “non-trucking activity.” Ohio R.C. § 2307.34(B)(5). Because we uphold the district court’s determination that Moon was acting in the business of O & I at the time of the accident, by definition Moon could not have been engaged in “non-trucking activity.” See Auto–Owners Ins., 549 F.3d at 1047.