Court of Appeals of Texas,Houston (14th Dist.).

BENNETT TRUCK TRANSPORT, LLC, Appellant

v.

WILLIAMS BROTHERS CONSTRUCTION, Appellee.

May 22, 2008.

On Appeal from the County Civil Court at Law No. 1, Harris County, Texas, Trial Court Cause No. 849496.

Panel consists of Justices YATES, FOWLER, and GUZMAN.

OPINION

LESLIE B. YATES, Justice.

Appellant Bennett Truck Transport, LLC appeals from the trial court’s order granting summary judgment against it on its claim against appellee William Brothers Construction. Because we conclude material fact issues exist, we reverse and remand.

BACKGROUND

Bennett is a for-hire motorcarrier in the business of transporting goods. The Texas Department of Transportation (“TxDOT”) issued a permit to Bennett to transport an oversized manufactured housing unit within Texas on a specified route. The permit directed Bennett to travel through Houston, Texas southward on Loop 610 and to exit from Loop 610 onto Highway 59 South. However, due to road construction being conducted by Williams Brothers, the lanes on the exit ramp had been narrowed and were too narrow to accommodate the oversized load. As Bennett’s driver traveled on the exit ramp, the manufactured home was damaged beyond repair. As a common carrier, Bennett paid the housing unit owner $24,340 for damage to the home.

Nearly two years after the accident, Bennett sued Williams Brothers, claiming that Williams Brothers negligently failed to place proper signs alerting drivers to the narrowed lanes, as required by its contract with TxDOT. Williams Brothers moved for summary judgment, arguing that Bennett did not have standing because it did not own the housing unit and the owner had not assigned its claim to Bennett. Williams Brothers asserted that Bennett was a settling joint tortfeasor and was prohibited from seeking contribution from Williams Brothers as a co-tortfeasor under Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19 (Tex.1987). Bennett responded that it was not seeking contribution but was claiming a right to reimbursement based on equitable subrogation, arguing that, as a common carrier, it was an insurer of the property and thus entitled to subrogation. Williams Brothers also moved for summary judgment on the ground that it was protected from liability by section 97.002 of the Texas Civil Practice and Remedies Code, which protects those who contract with TxDOT for road repairs if they comply with relevant contract specifications. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 97.002 (Vernon 2005). Bennett responded that Williams Brothers did not comply with the contract specifications, which required proper signage. The trial court granted summary judgment without specifying the basis, and this appeal followed. In two issues, Bennett argues that the trial court erred in granting summary judgment because it is entitled to proceed under an equitable subrogation theory and because Williams Brothers is not protected from liability under section 97.002.

Standard of Review

The standard of review for a traditional motion for summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A defendant must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Under this traditional standard, the court must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant’s favor. See id.When, as here, the trial court does not specify the basis for its summary judgment, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

Section 97.002

Section 97.002 of the Civil Practice and Remedies Code provides:

A contractor who constructs or repairs a highway, road, or street for the Texas Department of Transportation is not liable to a claimant for … property damage … arising from the performance of the construction or repair if, at the time of the … property damage, … the contractor is in compliance with the contract documents material to the condition or defect that was the proximate cause of the … property damage….

Williams Brothers moved for summary judgment, arguing that it complied with all TxDOT contract requirements and therefore is protected from liability. In its second issue, Bennett argues that summary judgment on this basis was improper because a fact issue exists regarding Williams Brothers’s compliance. We agree. Williams Brothers’s contract with TxDOT required proper signage to notify motorists of any lane narrowing. Williams Brothers presented evidence that it generally complied with the contract signage requirements and that at least one employee checked the site multiple times daily to ensure all signs were in place. However, Bennett presented an affidavit from its driver stating that as he was traveling from Loop 610 approaching the exit for Highway 59 south, a route he had traveled many times before, “there were not any signs indicating that there were narrowed lanes on the ramp.”A Williams Brothers manager testified that even though he could not recall any signs missing, he could not testify that at the exact date and time of the accident, a sign was present. Based on this evidence, we conclude that a fact issue exists as to whether, despite its policy and belief to the contrary, the necessary signs were in place when Bennett’s driver passed through the exit ramp. Therefore, the trial court erred to the extent that it granted summary judgment on this basis, and we sustain Bennett’s second issue.

Equitable Subrogation

A common carrier is one who holds itself out to the general public as engaged in the business of transporting persons or property from one place to another. See BML Stage Lighting, Inc. v. Mayflower Transit, Inc., 14 S.W.3d 395, 402 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). It is undisputed that Bennett was transporting the housing unit as a common carrier. Unless provided otherwise by law, the duty of a common carrier is as provided at common law.TEX. TRANSP. CODE ANN. § 5.001(a)(1) (Vernon 1999). At common law, common carriers were generally liable as insurers for any loss or injury to the property occurring during transport. See Travelers Ins. Co. v. Delta Air Lines, Inc., 498 S.W.2d 443, 445 (Tex.Civ.App.-Texarkana 1973, no writ) (“At common law the common carrier was an insurer of goods entrusted to it for shipment and could only be relieved from liability for failure to deliver by showing affirmatively that such failure to deliver was due to one of several recognized exceptions ….“ (emphasis added)); see also Common Carrier Motor Freight Ass’n v. NCH Corp., 788 S.W.2d 207, 209 (Tex.App.-Austin 1990, writ denied) (noting general rule that “[a]t common law, the carrier is fully liable for all damage to cargo in its possession”); Mo. Pac. R.R. v. John B. Hardwicke Co., 380 S.W.2d 706, 707 (Tex.Civ.App.-San Antonio 1964, no writ) (describing general common law shipper liability rule and exceptions and stating that “[w]here the loss is not due to one of these specified causes, it is immaterial whether the carrier has exercised due care or was negligent”).

In its first issue, Bennett argues that because it paid the loss to the housing unit’s owner as an insurer, it is entitled to seek reimbursement under the theory of equitable subrogation. When an insurer pays a loss, the insurer becomes equitably subrogated to its insured’s rights and stands in the insured’s shoes against the tortfeasor who caused the loss. See Argonaut Ins. Co. v. Allstate Ins. Co., 869 S.W.2d 537, 541 (Tex.App.-Corpus Christi 1993, writ denied); accord Ward v. Allied Van Lines, Inc., 231 F.3d 135, 140 (4th Cir.2000). Equitable subrogation is a “legal fiction” whereby an obligation that is extinguished by a third party is treated as still existing to allow the creditor to seek recovery from the primarily liable party. See Murray v. Cadle Co., No. 05-06-01481-CV, — S.W.3d —-, 2008 WL 1838014, at(Tex.App.-Dallas Apr. 25, 2008, no pet. h.). The party claiming entitlement to equitable subrogation must prove that it acted involuntarily in paying a debt and that the debt was one on which the other party is primarily liable. See Mid-Continent Ins. Co. v.. Liberty Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex.2007); Murray, 2008 WL 1838014, at *6. Texas courts are particularly hospitable to the doctrine. Murray, 2008 WL 1838014, at *5.

Williams Brothers argues that Bennett has no standing to bring this suit because it neither owns the property nor received an assignment of rights from the owner. However, when an insurer pays an owner’s loss, it becomes the owner of the cause of action and therefore does not need an assignment. See Mid-Continent, 236 S .W.3d at 774 (noting that subrogation grants the party seeking it “the right to pursue reimbursement from a third party”); Thoreson v. Thompson, 431 S.W.2d 341, 347 (Tex.1968) (stating that insurer paying insured’s loss becomes owner of cause of action); see also Jones Motor Co. v. Anderson, 602 S.E.2d 228, 230 (Ga.Ct.App.2004) (explaining that subrogation eliminates the need for formal assignment of rights).

We agree that Bennett is entitled to attempt to prove its equitable subrogation theory. Bennett paid full damages to the property owner as an insurer, and thus it should not be precluded from pursuing equitable subrogation as a matter of course without examining the facts of the case. See Ward, 231 F.3d at 139-40 (holding that because common carriers are insurers and insurers have subrogation rights, common carriers have subrogation rights). Williams Brothers asserts that common carriers are not truly insurers because they can avoid liability in some circumstances. See Travelers Ins. Co., 498 S.W.2d at 445;Mo. Pac. R.R., 380 S.W.2d at 707. That common carriers may have different avenues to avoid liability does not negate that they are generally liable for any property damage during transit, regardless of their own negligence. See Mo. Pac. R.R., 380 S.W.2d at 707. Williams Brothers asserts that Bennett’s driver was likely negligent and thus, Williams Brothers “is no more ‘primarily liable’ than Bennett and its driver.”As discussed above, Williams Brothers’s negligence is in dispute, and as Bennett points out, Bennett’s negligence or lack thereof is a fact issue for the jury. Equitable subrogation is an equitable remedy that involves balancing of all the equities in the circumstances, including any negligence of the party seeking subrogation. See Murray, 2008 WL 1838014, at(stating that “each case turns on its own facts when the issue is one of purely equitable subrogation” and that factors to consider in balancing the equities include “the negligence of the party claiming subrogation”); see also Providence Inst. for Savs. v. Sims, 441 S.W.2d 516, 519 (Tex.1969) (noting that a factor of “some importance” in assessing equitable subrogation is “[n]egligence on the part of one seeking subrogation”). Further, a party is not entitled to equitable subrogation if it pays a debt for which it was primarily liable. See Mid-Continent, 236 S.W.3d at 776 (explaining that when one pays a debt upon which it is primarily liable, it fails to satisfy ‘the traditional subrogation requirement that the subrogee pay a debt for which another was primarily liable”). Thus, the issue of the parties’ negligence and who is primarily liable for the accident must be decided by a factfinder.

Williams Brothers asserts that Bennett is really a joint tortfeasor seeking contribution based on Williams Brothers’s percentage of responsibility, which is barred by the Texas Supreme Court’s opinion in Jinkins.The Jinkins court held that “a defendant can settle only his proportionate share of a common liability and cannot preserve contribution rights under either the common law or the comparative negligence statute by attempting to settle the plaintiff’s entire claim.”739 S.W.2d at 22. The court was concerned, among other things, about the settling party assuming multiple roles, explaining that “the settling defendant’s unusual posture as surrogate plaintiff, co-defendant and cross-plaintiff will confuse a jury and possibly prejudice the remaining parties.”Id. We conclude Jinkins does not apply in this situation. Jinkins prohibits a defendant from settling a plaintiff’s entire claim by paying more than its proportionate share of responsibility and then hoping to obtain reimbursement from other joint tortfeasors. See id.That did not happen here. Bennett did not voluntarily pay the owner’s entire damages-it was required to do so because of its status as a common carrier. See Common Carrier Motor Freight Ass’n, 778 S.W.2d at 209;Travelers Ins. Co., 498 S.W.2d at 445;Mo. Pac. R.R., 380 S.W.2d at 707. Williams Brothers emphasizes that allowing Bennett’s suit will require Bennett to play multiple roles as plaintiff and co-defendant, thereby implicating the policy concerns in Jinkins.However, equitable subrogation claims often involve multiple roles, such as when an insurer pursues a claim on behalf of its insured driver where both drivers involved in an accident are alleged to be negligent. See Mid-Continent, 236 S.W.3d at 774 (explaining that subrogation insurers’ claims are subject to any defenses held by the third party against the insured). Texas favors equitable subrogation, even though it may involve dual roles-whether it is the insured’s potential negligence, as in a car wreck case, or the insurer’s potential negligence, as in this case. Equitable subrogation has its own unique set of circumstances and policy considerations, and this is not the situation contemplated in Jinkins.

We conclude the trial court erred to the extent it granted summary judgment on Bennett’s equitable subrogation claim. Fact issues exist regarding the negligence of both Bennett and Williams Brothers, and Bennett is entitled to have a jury determine who is primarily liable for the incident. We sustain Bennett’s first issue.

Because we have concluded that genuine issues of material fact preclude summary judgment, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

Court of Appeal of Louisiana,Third Circuit.

Beatrice RYES

v.

HOME STATE COUNTY MUTUAL, Scout Transportation Service, Inc. and Phillip Boudreaux.

.

May 14, 2008.

Appeal from the Sixteenth Judicial District Court Parish of St. Martin, Docket No. 06-71074-C, Honorable John Conery, District Judge.

Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.

COOKS, Judge.

STATEMENT OF THE FACTS

This appeal arises out of a one-vehicle accident involving a Peterbilt tractor-trailer rig owned by Phillip Boudreaux, leased by Scout Transportation Services and driven by Liney Ryes. Beatrice Ryes, Liney’s wife, was a passenger in the vehicle. Liney and Beatrice Ryes are residents of Louisiana. Phillip Boudreaux’s business is located in Louisiana. Scout Transportation Services, Inc. is a Texas-based company with an operational office in Broussard, Louisiana. The tractor-trailer rig was insured by Home State County Mutual Insurance Company. The rig contained the Scout Transportation company logo which provided as follows:

Operated by SCOUT Transportation Services, Inc. Lafayette, La.

Phillip Boudreaux and Scout Transportation entered into a contract for lease of the tractor-trailer rig. The contract was executed in Louisiana. Liney Ryes was hired by Scout Transportation as a cross-country driver. The employment contract was executed in Louisiana by Mr. Ryes and a representative of Scout Transportation. As part of its normal operating policies, Scout Transportation allows its drivers to take certain passengers with them on interstate runs. Scout Transportation asserts this policy is an added incentive to entice a larger pool of drivers to consider employment with the company. Scout Transportation requires those passengers to sign a pre-accident waiver/release agreeing to release, indemnify and/or defend Scout Transportation and/or any driver, owner, lessor, lessee, bailee, insurer, agents and/or servants from any and all claims resulting from an accident. Before making the cross-country trip, Mrs. Ryes signed the pre-accident waiver/release in Louisiana.

On July 26, 2006, Mr. Ryes was driving the tractor-trailer rig on Interstate Highway 70 in Colorado when the braking system allegedly failed on a descending slope of the highway. When he attempted to utilize the runaway truck ramp located between the highway and the side of the mountain, the rig struck the mountain and ricocheted off an embankment on the right side of the ramp, rolled over one-quarter time, and came to rest on its side. Two individuals were working on the escape ramp at the time. One individual dove under a parked semi-trailer and the other ran up the side of the mountain in order to escape collision with the runaway rig. Beatrice Ryes was severely injured in the crash.

Following the accident, Mrs. Ryes filed suit against Phillip Boudreaux, Scout Transportation and its insurer, Home State County Mutual Insurance Company. The Defendants answered the petition asserting Mrs. Ryes executed a written waiver/release of all claims against Scout Transportation. Mrs. Ryes filed a motion for summary judgment asserting the waiver/release is invalid under La.Civ.Code art.2004. Scout Transportation filed a cross motion for summary judgment asserting federal law, 49 U.S.C. § 14501(c)(1), preempts state law and La.Civ.Code art.2004 is not enforceable against a carrier engaged in interstate commerce. Alternatively, Scout Transportation argues if state law applies, then the law of Texas, not Louisiana, determines whether the pre-accident waiver/release is valid.

The trial court granted the motion for summary judgment in favor of Mrs. Ryes finding: (1) the federal statute in question does not preempt state law; (2) under Louisiana’s conflict of law provisions found in Civil Code Articles 3515 and 3537, Louisiana law rather than Texas law applies; and, (3) under La.Civ.Code art.2004, the pre-accident waiver/release was invalid. The Defendants appealed. For the reasons assigned below, we affirm the judgment of the trial court.

LAW AND DISCUSSION

Standard of Appellate Review

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate, i.e., (1) whether there is a genuine issue of material fact; and, (2) whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-66 (La.7/6/04), 880 So.2d 1;Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2257 (La.2/29/00), 755 So.2d 226. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

State Law Negligence Claims and Federal Preemption

Scout Transportation relies on 49 U.S.C. § 14501(c)(1) (emphasis added) to support its argument that federal law preempts the enforcement of Louisiana’s prohibition against pre-accident waivers contained in La.Civ.Code art.2004. The federal statute in question provides, in relevant part:

(c) Motorcarriers of property-

(1) General rule-Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motorcarrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

Louisiana’s prohibition against pre-accident waivers of liability is contained in La.Civ.Code art.2004 which provides, in relevant part:

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.

Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Scout Transportation asserts La.Civ.Code art.2004 bars enforcement of the pre-accident waiver contained in the contract Mrs. Ryes signed and paves the way for a tort suit against the company. Scout Transportation contends any imposition of liability under Louisiana tort law would necessarily affect the “price” the company would charge for transporting interstate cargo. Further, Scout Transportation argues the enforcement of Louisiana’s statute would limit its potential driver pool to those individuals agreeing not to travel with a spouse or close relative. Scout Transportation contends the company will be forced to change its “route and service” to avoid travel through Louisiana and risk incurring the financial burden the effects of La.Civ.Code art.2004 would present. Scout Transportation relies on several cases to support is position that “any tort action ‘where the subject matter of the action is related to the carrier’s prices, routes, or services’ “ is preempted by the federal statute. Beyer v. Acme Truck Line, Inc., 02-1, p. 6 (La.App. 5 Cir. 11/14/01),802 So.2d 798, 800,citing Deerskin Trading Post, Inc. v. United Parcel Serv. of Am., Inc. 972 F.Supp. 665 (N.D.Ga.1997).

We have examined the cases relied on by Scout Transportation and find they do not support the position that 49 U.S.C. § 14501(c)(1) prohibits Mrs. Ryes from asserting her state law tort claim against Scout Transportation or that the federal statute was meant to prevent a state from prohibiting contract provisions which would deny its citizens a tort remedy for damages resulting from the negligence of an interstate carrier.

The two cases relied on by Scout Transportation, Beyer and Deerskin Trading Post, involve suits seeking to enforce price controls on interstate carriers and are distinguishable from the facts in this case. In Beyer, independent truckers filed a class action lawsuit against three truckingcompanies alleging the companies engaged in price fixing with oil companies. The plaintiffs asserted several causes of action all under Louisiana state law. The Louisiana appellate court held the plaintiffs’ claims were directly related to the “price, route or service” of the interstate carrier and all state law claims were preempted by federal statute.

In Deerskin, the plaintiff asserted breach of contract claims under state law against UPS alleging UPS overcharged for shipping services to Deerskin customers. The federal appellate court held the plaintiff’s state law claims were preempted. Significantly, however, the federal court distinguished personal injury suits which are only tangentially, not directly, related to a carrier’s “price, route or service” and are not preempted by the federal statute.

There are three circumstances in which a federal law preempts state law: (1) when the federal statute expressly directs that the state law is invalid; (2) when Congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme; or (3) when the state law conflicts with federal law or interferes with the achievement of federal objectives. Air Transport Association of American v. Cuomo, 520 F.3d 218 (2d Cir.2008).

Deerskin, 972 F.Supp. 665, also held the preemption provision found in the 49 U.S.C. § 14501(c)(1), the relevant provision in this case, is identical to that found in the Airline Deregulation Act (ADA) making the cases involving suits against airlines applicable to our analysis in the present case involving interstate motorcarriers.

The present suit deals with an area of law traditionally regulated by state law and which historically involves the most fundamental aim of a state’s police powers, i.e., protecting the safety of its citizens and ensuring access to state courts for redress of injury. In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 112 S.Ct. 2608, 2617 (1992), the Supreme Court held any analysis of issues arising under the Supremacy Clause “start[s] with the assumption that the historic police powers of the States [are] not to be superseded by … Federal Act unless that [is] the clear and manifest purpose of Congress.”Cipollone, 505 U.S. at 516. (citations omitted); See also N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 1676 (1995), where the Supreme Court has stated that despite the “opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law.”

In the area of personal injury suits against interstate carriers, the courts have found a state’s interest in preserving a tort remedy for its citizens overrides any limited burden on interstate commerce. See Vinnick v. Delta Airlines, Inc., 93 Cal.App.4th 859 (Cal.Ct.App.2001), where the court allowed a negligence claim against Delta Airlines when a passenger was injured by luggage falling from an overhead bin; Stone v. Frontier Airlines, Inc., 256 F.Supp.2d 28 (D.Mass 2002), where the wife of a deceased airline passenger brought suit against the airline asserting a claim under state law that the carrier was negligent in failing to have a defibrillator aboard a plane; Haynes v. Nat’l R.R. Passenger Corp., 423 F.Supp.2d 1073 (U.S.C.D.Ca.), which allowed a suit by a passenger against Amtrak for failure to warn against the dangers of deep vein thrombosis on extended trips; and Kuehne v. United Parcel Service, Inc., 868 N.E.2d 870 (Ind.App.2007), where a homeowner brought a negligence suit against UPS for injuries sustained when she tripped over a package left on her doorstep.

Moreover, the federal statute at issue reserves to the states the power to enact reasonable safety regulations, including route controls based upon vehicle size, weight, and whether the vehicles were transporting hazardous cargo. The states have the authority as well to regulate minimum levels of financial responsibility. Section 14501(c)(2) provides in relevant part:

(2) Matters not covered.-Paragraph (1)-

(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motorcarriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization[.]

Scout Transportation cites the Texas case of Tamez v. Southwestern Motor Transp., Inc., 155 S.W.3d 564 (Tex.App.-San Antonio 2004), to support its position that a pre-accident waiver of liability is valid under Texas law and should be enforced. The Tamez case arose in Texas. Texas, unlike Louisiana, allows a party to contract away its liability if certain requirements are met. In Tamez, the plaintiffs were seeking to avoid the effects of the pre-injury waiver by asserting under the federal statute they were “statutory employees” of Southwestern Motor and any waiver of liability by them in favor of the company is invalid under the federal statute. The Tamez court reviewed the history and amendments to the Federal MotorCarrier Safety Regulations and found nothing in the statute to prevent a driver-employee from executing a pre-accident waiver of liability. The court stated, prior to the amendments to the statute, interstate motorcarriers attempted to insulate themselves from liability to third parties for negligent drivers by asserting the drivers were “independent contractors.” The amendments to the federal statute required the carriers to assume full direction and control of the leased vehicles and imposed liability as a matter of law for the negligence of its drivers. The court stated:

The purpose of the amendments to the act was to ensure that interstate motorcarriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the leased drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred and providing financially responsible defendants.

Id. at 572.

The Tamez court found no bar under federal law to the enforcement of the pre-accident waiver executed in Texas by the driver-employee of the Southwestern Motor Transport rig. We agree with the Tamez court and find nothing in the federal statute which would prevent Louisiana from preserving a tort remedy for its citizens against the carrier by prohibiting a pre-accident waiver of liability. In fact, allowing the federal statute in this case to preempt Louisiana’s ban against pre-accident waivers would allow Scout Transportation to shield itself from any financial responsibility for its own negligence-a result in direct conflict with the purpose behind the enactment of 49 U.S.C. § 14501(c)(1). We affirm the decision of the trial court finding the federal statute does not preempt Louisiana’s ban against pre-injury waivers.

Choice of Law

Scout Transportation contends Texas law instead of Louisiana law applies to a determination of the validity of the pre-accident waiver of liability. In determining which state’s law should be applied, we look to La.Civ.Code art. 3537 which provides, in relevant part:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition of the other.

Scout Transportation contends Texas law should apply to determine the validity of the pre-accident waiver because Scout is a Texas corporation. We have examined the record and find Louisiana has the greater interest in the application of its laws in this case. Both Liney and Beatrice Ryes are Louisiana citizens. The employment contract was executed in Louisiana, and the waiver was signed in Louisiana. Scout Transportation hired Liney in Broussard, Louisiana. The vehicle’s owner, Phillip Boudreaux, is a Louisiana citizen. The rig is garaged and insured in Louisiana. Scout Transportation maintains an operational office in Broussard. The Scout rig contains a placard on the side of the vehicle which states the company is operated out of Lafayette, Louisiana. The load originated in New Iberia and was brokered from Broussard, Louisiana. The vehicle had brake maintenance performed in Lafayette, Louisiana. We find no error in the finding of the trial court that Louisiana has a significant interest in having its laws enforced and a vital interest in preserving a tort remedy for its citizens. We affirm the trial court findings that Louisiana law applies and under La.Civ.Code art.2004 a pre-accident waiver of liability is invalid.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court granting the Plaintiff’s motion for summary judgment finding the pre-accident waiver/release of liability is invalid under Louisiana Civil Code Article 2004.

AFFIRMED.