Bits & Pieces

Wallach Trading Co., Inc. v. Team Freight, Inc.

United States District Court,

E.D. Missouri,

Eastern Division.



TEAM FREIGHT, INC., Defendant.


No. 4:11CV00884 AGF.

June 1, 2012.


Elkin L. Kistner, Jones and Bick, St. Louis, MO, for Plaintiff.


Corey L. Kraushaar, Christopher J. Seibold, Brown and James, P.C., St. Louis, MO, for Defendant.



AUDREY G. FLEISSIG, District Judge.

This matter is before the Court on Plaintiff’s motion for leave to file first amended complaint (Doc. No. 35). Defendant has filed a memorandum in opposition (Doc. No. 37), and Plaintiff has filed a reply brief (Doc. No. 45). After consideration of the record and the motions, the Court shall deny Plaintiff’s motion for leave to file an amended complaint.



On or about July 6, 2010, Plaintiff purchased a load of material for $126,169.92 and entered into an agreement with Defendant Team Freight, Inc. (“TFI”) to arrange for the load to be shipped from the seller in Texas to a location in Connecticut. (Compl.¶¶ 7–8, Doc. No. 1) Defendant contracted with an interstate motor carrier, RBC Express, Inc., (“RBC”) to deliver the load. (Id. at ¶ 9) RBC picked up the load in Texas and was obligated to deliver in accordance with the bill of lading. (Id. at ¶ 10) However, RBC failed to deliver the load, which Plaintiff believes was lost or stolen. (Id. at ¶¶ 11) Plaintiff was unsuccessful in its attempts to recoup its loss from either RBC or Defendant TFI. (Id. at ¶ 12)


On May 16, 2011, Plaintiff filed a complaint against RBC and Defendant TFI, alleging a Carmack Amendment claim against RBC (Count I) and a breach of contract claim against TFI (Count II). However, Plaintiff was unable to effect timely service on RBC, and on January 26, 2012, the Court dismissed RBC without prejudice for lack of timely service. On March 1, 2012, the Court dismissed RBC as a Crossclaim Defendant. In the Case Management Order dated April 24, 2012, the Court ordered the parties to show cause why the case should not be dismissed for lack of jurisdiction. (Doc. No. 33) In response, Plaintiff now asserts that it has a Carmack Amendment claim against Defendant TFI as well, based on TFI’s actions in arranging transportation of the load. (Pl.’s Resp. to Order to Show Cause ¶ 6, Doc. No. 36) Plaintiff seeks to file an amended complaint against Defendant TFI adding the Carmack Amendment claim (Count I) and a negligence claim (Count III). (Pl.’s Mot. for Leave to File First Am. Compl. Ex. A, Doc. No. 35–1) Defendant, however, argues that Plaintiff’s amended complaint could not withstand a motion to dismiss, and therefore, this Court should deny the motion to file an amended complaint.



District courts have discretion whether to allow leave to amend complaints and may deny leave to amend where the proposed amended complaint would not withstand a motion to dismiss. Weimer v. Amen, 870 F.2d 1400, 1407 (8th Cir.1989) (citations omitted); see also Zutz v. Nelson, 601 F.3d 842, 852 (affirming the dismissal of proposed amended complaint where it would not survive a 12(b)(6) motion to dismiss and was, therefore, futile). “The liberal amendment rules of Fed.R.Civ.P. 15(a) do not require that courts indulge in futile gestures.” Holloway v. Dobbs, 715 F.2d 390, 392–93 (8th Cir.1983) (citation omitted).


Here, Defendant argues that Plaintiff’s proposed amended complaint is futile in that Plaintiff cannot state a Carmack Amendment claim because Defendant is a broker, not a motor carrier. Plaintiff, on the other hand, asserts that its allegation that Defendant is a “motor carrier” states a claim that is plausible on its face such that it can survive a motion to dismiss and is not futile.


“The Carmack Amendment (49 U.S.C. § 14706 (1996)) imposes liability on a carrier for all losses relating to goods it transports in interstate commerce.” Chubb Group of Ins. Cos. v. H.A. Transp. Sys., Inc., 243 F.Supp.2d 1064, 1068 (C.D.Cal.2002). The statute pertains only to “motor carriers” and “freight forwarders” and preempts state common law claims against them. Id; 49 U.S.C. § 14706(a). The Carmack Amendment does not apply to brokers, however, and brokers may only be held liable under state law in connection with the shipment. Id. at 1068–69. The statute defines broker as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2). “The term ‘motor carrier’ means a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14).


According to the proposed amended complaint, Plaintiff entered into an agreement with Defendant to arrange for the load to be shipped, and thereafter Defendant contracted with RBC to pick up and deliver the load. (Pl.’s Mot. for Leave to File First Am. Compl. Ex. A ¶¶ 6–7, Doc. No. 35–1) While Plaintiff contends that Defendant was not only acting as a broker, but as a motor carrier, nothing in the pleadings suggests that Defendant provided motor vehicle transportation or agreed to provide transportation. Instead, Plaintiff’s allegations demonstrate that Defendant merely arranged for the transportation, which falls within the definition of a broker, not a motor carrier. Chubb, 243 F.Supp.2d at 1069–70.


Plaintiff’s reliance on Land O’Lakes, Inc. v. Superior Serv. Transp. of Wis., Inc., 500 F.Supp.2d 1150 (E.D.Wis.2007) is misplaced. In that case, the defendant expressly agreed to transport the goods in the contract and agreed to assume interstate motor carrier liability pursuant to the Carmack Amendment.   Id. at 1152. The defendant then brokered the delivery of the goods to another carrier. Id. at 1153. Based upon the “undisputed facts of the case” that defendant agreed to transport the goods, the court found that plaintiff could assert a cause of action under the Carmack Amendment against defendant as a motor carrier. Id. at 1155.


Likewise, Corbin v. Arkansas Best Corp., No. 2:08CV00006 JLH, 2008 WL 631275 (E.D.Ark. March 4, 2008) does not apply to the instant case. In Corbin, plaintiff expressly alleged that she contracted with defendant to transport her furniture and household goods. Id. at *2; see also Mach Mold Inc. v. Clover Assocs., Inc., 383 F.Supp.2d 1015, 1030 (N.D.Ill.2005) ( “[I]f [defendant] had been authorized to transport the machine and accepted and legally bound itself to do so, it would not be a broker … [but] would be acting as a ‘motor carrier’ for the purposes of the [ Carmack Amendment].”).

In the instant case, the facts in Plaintiff’s proposed amended complaint allege that Defendant is a licensed broker and agreed to arrange for transportation. (Pl.’s Mot. for Leave to File First Am. Compl. Ex. A ¶¶ 2, 6, Doc. No. 35–1) While Plaintiff correctly notes that a broker can, in some instances, be a motor carrier as well, nothing in the pleading even suggests an agreement to provide motor vehicle transportation. Plaintiff’s conclusory allegation that Defendant was also acting as a motor carrier, without more, is insufficient to survive a motion to dismiss. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, … a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do …”) (citations omitted). Although Plaintiff argues that using the term “motor carrier” along with alleging the elements of a Carmack Amendment claim satisfies the plausibility requirement, the amended complaint contains the exact type of language proscribed by Twombly. Id; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”) (citation omitted).


Because the amended complaint cannot withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court shall deny Plaintiff’s motion for leave to file first amended complaint as futile. See Zutz, 601 F.3d at 852 (affirming lower court’s denial of motion for leave to amend where proposed amended complaint failed to state enough facts that would plausibly lead to a cause of action). Further, “[a] federal district court has the discretionary power to decline jurisdiction where it has ‘dismissed all claims over which it has original jurisdiction.’ “ Johnson v. City of Shorewood, Minn., 360 F.3d 810 (8th Cir.2004) (quoting 28 U.S.C. § 1367(c)(3)). Here, the Court declines to exercise supplemental jurisdiction over the remaining state law claim and will dismiss the pendent claim for lack of jurisdiction. Id.




IT IS HEREBY ORDERED that Plaintiff’s motion for leave to file first amended complaint is DENIED. (Doc. No. 35)


IT IS FURTHER ORDERED that the complaint is hereby DISMISSED for lack of jurisdiction.

Patterson-UTI Drilling Co., LLC v. Tri-State Trucking, LLC

United States District Court,

D. Utah,

Central Division.

PATTERSON–UTI DRILLING COMPANY, LLC f/k/a Patterson–UTI Drilling Company, LP, LLLP, Plaintiff,


TRI–STATE TRUCKING, LLC; MB Construction Services, Inc; Mike Brady Corporation; and Sunland Construction, Inc., Defendants.


No. 2:09–cv–01045.

May 30, 2012.


Kristine M. Larsen, Rick L. Rose, Ray Quinney & Nebeker, Salt Lake City, UT, for Plaintiff.


Alain C. Balmanno, Craig V. Wentz, Gabriel K. White, Christensen & Jensen PC, Joshua T. Gardner, Terry M. Plant, Plant Christensen & Kanell, Salt Lake City, UT, for Defendants.



DEE BENSON, District Judge.

Before the Court is Defendant Tri–State Trucking, LLC’s (“Defendant”) Motion for Summary Judgment based on the Economic Loss Rule as to Plaintiff Patterson–UTI Drilling Company’s (“Plaintiff”) Complaint. Defendant makes the motion pursuant to Federal Rule of Civil Procedure 56 and DuCiv R.7.1. The sole issue before the Court is whether the economic loss rule bars recovery in a negligence action between two parties in the oil industry who do not share a direct contractual relationship. The Court heard oral argument on this matter on April 23, 2012.



This matter arises from an accident that occurred on November 27, 2006, during which a large piece of drilling equipment (the “Substructure”) owned by Plaintiff, and leased by nonparty Bill Barrett Corporation, was damaged while being transported by Defendant from one well site to another. (Def.’s Mem. Supp. Mot. Summ. J. 1 (Dkt. No. 74)).


Bill Barrett Corporation is the owner of drilling rights over numerous properties. (Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 8 (Dkt. No. 85)). As owner of the rights, Bill Barrett Corporation enters into contracts with oil field service providers to assist the corporation in the exploration of oil and gas. See id. at 7–9. On January 5, 2006, Bill Barrett Corporation entered into a standard-form contract with Plaintiff that obligated Plaintiff to drill designated wells for the benefit of Bill Barrett Corporation (the “Daywork Contract”). See id. at 7; Daywork Contract at 1, Ex. A (Dkt. No. 74–1). Pursuant to the Daywork Contract, Plaintiff was to furnish a drilling rig. (Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 8 (Dkt. No. 85)). The Substructure at issue was a part of the drilling rig. Id. Also pursuant to the Daywork Contract, Bill Barrett Corporation was to provide for the transportation requirements of Plaintiff’s drilling rig, including the Substructure. Id.


Defendant is a trucking company that specializes in the transportation of drilling rigs in the Rocky Mountain region. Id. at 11. Bill Barrett Corporation contracted with Defendant on November 11, 2005, pursuant to a standard-form Master Service Contract (“MS Contract”) to perform services at various wells as requested by Bill Barrett Corporation. See id. at 8; MS Contract, Ex. B (Dkt. No. 74–2). The MS Contract does not specifically delineate what services and/or goods Defendant is to provide. (Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 8 (Dkt. No. 85)). Plaintiff and Defendant did not have a contract with each other in connection with the transportation of the Substructure. Id. at vi.


Pursuant to the MS Contract, Bill Barrett Corporation asked Defendant to move the Substructure from one well-site to another. See id. at 10. Defendant elected to transport the Substructure in one piece rather than breaking it into four separate pieces. (Pl .’s Mem. Opp. Def.’s Mot. Summ. J. 10 (Dkt. No. 85)). The Substructure was forty-five feet long, twenty feet high, twenty-four to twenty-six feet wide, and weighed 210,000 pounds. Id.


At the time of transport, the Substructure was suspended between two trucks, one driving forward and the other driving backward. Id. The Substructure was the only piece of the drilling rig that was moved with one truck driving forward and one truck driving backward. Id. at 12. The driver of the rear-facing truck lost control of the truck, causing the truck and the Substation to roll down the side of a hill. (Def.’s Mem. Supp. Mot. Summ. J. 2 (Dkt. No. 74)). The Substructure rolled at least three times before it stopped some 150 feet down the hill. (Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 10–11 (Dkt. No. 85)).


As a result of the accident, Plaintiff alleges that it “suffered significant property damage and resulting loss of use and lost employee time, and other consequential damages.” Id. at v. Plaintiff brought suit against Defendant for negligence, and is seeking damages of approximately one million dollars. (Def.’s Mem. Supp. Mot. Summ. J. 2 (Dkt. No. 74)). Defendant alleges Plaintiff’s claim against it is barred by the economic loss rule.




“The court shall grant 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 disputed fact is ‘material’ if it might affect the outcome of the suit under the governing law, and the dispute is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir.1997). A court considering summary judgment should consider the evidence in the light most favorable to the non-moving party. See, e.g., Gwinn v. Awmiller, 354 F.3d 1211, 1215 (10th Cir.2004).



“The economic loss rule is a judicially created doctrine that marks the fundamental boundary between contract law, which protects expectancy interests created through agreement between the parties, and tort law, which protects individuals and their property from physical harm by imposing a duty of reasonable care.” Hermansen v. Tasulis, 48 P.3d 235, 239 (Utah 2002). The rule serves two purposes: “[f]irst, it bars recovery of economic losses in negligence actions unless the plaintiff can show physical damage to other property or bodily injury. Second, the economic loss rule prevents parties who have contracted with each other from recovering beyond the bargained-for-risks.” Sunridge Dev. Corp. v. RB & G Eng’g, Ind., 230 P.3d 1000, 1006 (Utah 2010) (citations omitted).



The economic loss rule was adopted and applied to “promote the obligations and expectations created by contract….” Davencourt at Pilgrims Landing Homeowners Ass’n v. Pilgrims Landing, LC, 221 P.3d 234, 243 (Utah 2009). Yet both parties agree that a contractual relationship does not exist between Plaintiff and Defendant: Plaintiff independently contracted with Bill Barrett Corporation, and Defendant independently contracted with Bill Barrett Corporation, but Plaintiff and Defendant did not contract with each other regarding the transportation of the Substructure. (Pl.’s Mem. Opp. Def.’s Mot. Summ. J. vi (Dkt. No. 85); Def.’s Mem. Supp. Mot. Summ. J. 2–4 (Dkt. No. 74)).


To circumvent this fact, Defendant asks the Court to adopt the rationale set forth in construction industry cases wherein courts have utilized the economic loss rule to bar recovery between parties that do not have a direct contractual relationship. See Davencourt, 221 P.3d at 243. Attempting to use Bill Barrett Corporation as a lynchpin that holds the parties’ separate contracts with Bill Barrett Corporation together, Defendant alleges that because “[c]onstruction projects are characterized by detailed and comprehensive contracts that form the foundation of the industry’s operations,” and the oil industry is likewise characterized by detailed and comprehensive contracts that form the foundation of the oil industry, the Court should also apply the economic loss rule in this case. See Def.’s Mem. Supp. Mot. Summ. J. 5–7 (Dkt. No. 74).


After reading the parties’ memoranda and having considered the positions of the parties presented at oral argument, the Court finds that Defendant has not demonstrated that the facts in the present case are sufficiently analogous to the construction cases that it cites. Defendant also fails to demonstrate that Plaintiff’s Daywork Contract with Bill Barrett Corporation contains terms that implicate Defendant in a cause of action. The Court thus denies Defendant’s motion for summary judgment based on the analysis below.


A. Plaintiff Alleges Damages from Negligence—Not a Defective Product

The first issue the Court addresses is whether the construction cases cited by Defendant are sufficiently analogous to the present case for the purpose of applying the economic loss rule.


Both Plaintiff and Defendant acknowledge that the economic loss rule has its roots in product liability cases. See Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 13 (Dkt. No. 85); Def.’s Mem. Supp. Mot. Summ. J. 6 (Dkt. No. 74). These cases follow the reasoning that consumers do not have negligence claims against manufacturers simply because a product did not perform to the standard that the consumer thought the product should perform. See American Towers Owners Ass’n, Inc. v. CCI Mechanical, Inc., 930 P.2d 1182, 1190 (Utah 1996). Both parties also acknowledge that the economic loss rule has been expanded to apply in defective design and construction cases as well. See Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 13 (Dkt. No. 85); Def.’s Mem. Supp. Mot. Summ. J. 6 (Dkt. No. 74).


In the majority of cases in Utah where the economic loss rule has been applied—and in the cases cited by Defendant in support of its motion—there is some allegation that the object at issue was “defective”: i.e., the design of a product or the construction of a building was defective or of inferior quality. See, e.g., SME Industries, Inc. v. Thompson, Ventulett, Stainback & Associates, Inc ., 2001 UT 54, ¶ 38, 28 P.3d 669. At their core, these cases implicate products that did not work for the general purpose for which the product was manufactured. See, e.g., Sunridge Dev. Corp. v. RB & G Eng’g Inc., 2010 UT 6, ¶ 28, 230 P.3d 1000; Hermansen v. Tasulis, 2002 UT 52, ¶ 20, 48 P.3d 235; Davenport 2009 UT 65 at ¶ 25, 221 P.3d at 234.


But a defective product, design, or construction is not at issue in this case. Plaintiff is not alleging property damage stemming from the design, construction, sale, or repair of the Substructure. Nor is Plaintiff claiming that there was a defect in the Substructure or that the Substructure did not work for the general purposes for which it was manufactured, constructed or sold. Plaintiff is alleging Defendant negligently damaged its property while in the process of transporting it, an allegation entirely distinguishable from the defective product and defective construction cases cited by Defendant.


For example, in SME Industries, cited by Defendant, a subcontractor brought an action against an architectural services company and design team for delay damages and breach of contract after the subcontractor encountered problems with the structural steel portions of the plans and specifications prepared by the design team. SME Industries, Inc., 2001 UT 54 at ¶¶ 2–5, 28 P.3d at 672–73. The subcontractor sought recovery of extraordinary costs in excess of two million dollars. Id. The Supreme Court of Utah held the economic loss rule applies in barring a contractor and subcontractor’s negligence claim against a design professional such as an architect or engineer. Id. at ¶ 38, 28 P.3d at 682.


Unlike the plaintiff in SME Industries, however, Plaintiff is not alleging that the construction or design of the Substructure was defective. Rather, Plaintiff is alleging that Defendant negligently damaged its Substructure while transporting it. The allegations in these cases are thus distinguishable. As the SME Industries court stated: “the gravamen of SME’s negligence claims is dissatisfaction with the plans and specifications by the design team. Indeed, SME acknowledges that its tort claims seek purely economic damages, unaccompanied by any claim of … damage to other property.” Id. at ¶ 45, 28 P.3d at 684. Conversely, the gravamen of Plaintiff’s claim is that Defendant damaged its property—the Substructure. Defendant’s plans or specifications regarding the Substructure—if there were any—are not at issue in this case.


A more analogous case in which the economic loss rule was held inapplicable is the Texas Supreme Court case cited by Plaintiff, Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex.2011). In Sharyland, the Defendant city of Alton contracted with Plaintiff Sharyland Water Supply. Id. at 410. Under the terms of the contract, Alton conveyed its water system to Sharyland. Id. In return, Sharyland provided potable water to Alton residents and maintained the water system. Id. Some twenty years later, Alton hired an independent contracting company to build a sanitary sewer system for the city. Id.


Sharyland brought suit against Alton and the contracting company, alleging that the sewer system was negligently installed in violation of state regulations and industry standards because the location of the sewer lines to the water system threatened to contaminate Sharyland’s potable water supply. Id. In its defense, the contracting company relied on construction cases to argue that the economic loss rule should apply in barring Sharyland’s claim. Id. at 420. The Texas Supreme Court, however, rejected the economic loss rule as a bar to Sharyland’s claim, specifically noting that, “[c]onstruction defect cases … usually involve parties in a contractual chain who have had the opportunity to allocate risk, unlike the situation faced by Sharyland.” Id.


As in Sharyland, where two parties separately contracted with third party city of Alton, Plaintiff and Defendant separately contracted with third party Bill Barrett Corporation to perform independent obligations under their respective contracts. See Pl.’s Mem. Opp. Def.’s Mot. Summ. J. vi (Dkt. No. 85); Def.’s Mem. Supp. Mot. Summ. J. 2–4 (Dkt. No. 74). Like Sharyland, Defendant alleges that the parties’ individual contracts with third party Bill Barrett Corporation make application of the economic loss rule appropriate because the economic loss rule has been previously utilized in construction contract cases. See Def.’s Mem. Supp. Mot. Summ. J. 5–7 (Dkt. No. 74). And, as with Sharyland, this Court holds the economic loss rule does not apply. The Sharyland court ruled that neither Sharyland’s agreement with Alton, nor Alton’s separate contract with its contractor defeated Sharyland’s negligence claim against Alton’s contractor. Sharyland, 354 S.W.3d at 419–20. This Court is likewise persuaded that neither Plaintiff’s contract with Bill Barrett Corporation, nor Defendant’s separate contract with Bill Barrett Corporation will defeat Plaintiff’s claim against Defendant.


Plaintiff, like the plaintiff in Sharyland, did not have the opportunity along the contractual chain to allocate risk as is usually the case in construction defect claims. The underlying policy consideration for applying the economic loss rule is to “prevent parties who have contracted with each other from recovering beyond the bargained-for risks.” SME Industries, Inc., 2001 UT at ¶ 32. Defendant has not presented any evidence that Plaintiff and Defendant were able to bargain for risks concerning transportation of the Substructure with each other. Because there was no opportunity for Plaintiff and Defendant to bargain for risk, the economic loss rule is inapplicable.


In addition, merely because the object of the negligent performance—the Substructure in the present case—“was the subject of a contract does not mean that a contractual stranger is necessarily barred from suing a contracting party for breach of an independent duty.” Sharyland, 354 S.W.3d at 419–20; see also Wolf Hollow I L.P. v. El Paso Marketing, L.P., 329 S.W.3d 628 (Tex .Ct.App.2010) (holding “[o]ne who undertakes to perform a contract assumes a duty to all persons to take reasonable care not to injure them or their property in the performance of that contract, and one who is not privy to the contract may assert a claim for negligence for breach of that duty….”) If such were the case, a party could avoid tort liability to the world simply by entering into a contract with one party on anything related, no matter how tenuously, to that contract. See id.


Because both parties agree that the parties did not maintain a contractual relationship, and having distinguished Defendant’s cited construction cases from the present case, the Court now addresses the issue of whether the terms of Plaintiff’s Daywork Contract with Bill Barrett Corporation implicate Defendant in a cause of action.


B. The Terms of The Daywork Contract Do Not Implicate Defendant

Defendant also seeks to invoke the economic loss rule based on the assumption that Plaintiff, Defendant, and Bill Barrett Corporation have allocated their respective risks, liabilities, and obligations in their respective contracts such that Defendant is relieved of any tort liability. See Def.’s Mem. Supp. Mot. Summ. J. 7 (Dkt. No. 74) (“Given the extensive contractual relationships, all of which flow between the contractors and Bill Barrett Corporation, the pervasive contractual controls and the detailed obligations and limitations flowing from the various contracts, the economic loss rule applies as a matter of law….”). As Plaintiff correctly points out, however, none of these allocations are evidenced in the Daywork Contract between Plaintiff and Bill Barrett Corporation. (Pl.’s Mem. Opp. Def.’s Mot. Summ. J. 15 (Dkt. No. 85)).


Defendant relies on the exculpatory and indemnity provisions found in Paragraph 14 of the Daywork Contract between Plaintiff and Bill Barrett Corporation to imply that the responsibility for loss or damage, indemnity, release of liability and allocation of risk were intended to encompass the rights and obligations of Plaintiff and Bill Barrett Corporation and any third-party independent contractors such as Defendant. See id.; Def.’s Mem. Supp. Mot. Summ. J. 6–7 (Dkt. No. 74). The unambiguous language of the Daywork Contract, however, contradicts Defendant’s position and clearly provides that the risk allocation, exculpatory and indemnity provisions apply only to Plaintiff and Bill Barrett, the parties to the Daywork Contract.


Subsection 14.13 is particularly telling. Section 14.13 specifically provides:


… such indemnification and assumption of liability [contained in Paragraph 14] shall not be deemed to create any rights to indemnification in any person or entity not a party to this contract, either as a third party beneficiary or by reason of any agreement of indemnity between one of the parties hereto and another person or entity not a party to this Contract.


Id.; Daywork Contract at 6, Ex. A (Dkt. No. 74–1) (emphasis added)). The economic loss rule applies to contracts that govern the issue in question. When an issue is covered by contract, then that issue is taken out of the contract via the economic loss rule. But there is nothing in the Daywork Contract that governs the consequences of Defendant’s alleged negligence in transporting the Substructure. On the contrary, Subsection 14.13 clearly demonstrates that Plaintiff and Bill Barrett Corporation fully intended to exclude the rights of third parties such as Defendant from the Daywork Contract. Because the economic loss rule applies to duties and rights created under a contract, and because any duties and rights implicating Defendant in the Daywork Contract not only do not exist but are affirmatively not granted to Defendant, the Court is unpersuaded by Defendant’s argument that the economic loss rule applies in this case.


Defendant also alleges that the Utah Supreme Court has held that “[u]nder Utah law it does not matter what the contracts provide. It is the existence of the contracts, and the possibility of the contracts, which triggers the economic loss rule.” (Def.’s Reply Mem. Supp. Mot. Summ. J. 2 (Dkt. No. 90) (emphasis added)). In other words, Defendant argues, if there was merely the possibility that a term could have been included in a contract then the economic loss rule applies. The Court does not agree. First, Defendant has not provided any evidence to suggest that Plaintiff and Bill Barrett Corporation intended to grant—even as a possibility—rights to Defendant in the Daywork Contract. As demonstrated above, these rights were expressly not granted to third parties such as Defendant in the Daywork Contract. Second, the Court finds that Defendant’s interpretation of the economic loss rule expands the rule farther than the Utah Supreme Court ever intended. Defendant’s motion must be denied.


Because the Court decides Defendant’s motion based on the inapplicability of the economic loss rule in this case, the Court does not reach the issues raised by Defendant regarding the common carrier exception to the economic loss rule or the independent duty of care exception to the economic loss rule.



Based on the analysis above, Defendant’s Motion for Summary Judgment Based on the Economic Loss Rule is hereby DENIED.



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