Superior Court of New Jersey, Appellate Division.

The CONNECTICUT INDEMNITY COMPANY, Plaintiff-Respondent/Cross Appellant,

v.

Grover DOWDY, Joanne Taylor, Robert Taylor, Anthony J. Nardini, Richard C. Zabowski, Joanne Benites, A.J. Benites, Alexis Benites, Luonogo Trucking Inc., Defendants,

and New Jersey Manufacturers Insurance Company, Defendant-Appellant/Cross Respondent.

The Connecticut Indemnity Company, Plaintiff-Respondent/Cross Appellant,

v.

Grover Dowdy, Luongo Trucking, Inc., and Nicole A. Wrobel, Defendants,

andNew Jersey Manufacturers Insurance Company, Defendant-Appellant/Cross Respondent.

Argued April 25, 2006.

Decided Oct. 24, 2006.

 

Before Judges HOENS and SELTZER.

PER CURIAM.

This opinion considers cross-appeals from an order for summary judgment adjudicating a coverage dispute between plaintiff, The Connecticut Indemnity Company (Connecticut), and defendant, New Jersey Manufacturers Insurance Company (NJM), respecting two accidents. The motion judge determined that Connecticut was responsible for coverage to its insured, Grover Dowdy, for an accident occurring in 2001 and that NJM was responsible for coverage to Dowdy, whom it also insured, for an accident occurring in 2002. We determine that Connecticut was responsible to provide coverage for both accidents and, therefore, affirm the order in favor of NJM and reverse the order in favor of Connecticut.

 

The facts, presented by cross-motions for summary judgment, are undisputed. Grover Dowdy is the owner of a truck (sometimes referred to as a “tractor”) utilized to haul a trailer containing goods in intrastate traffic. In accordance with trucking industry custom, Dowdy leased his vehicle to a motor carrier, Luongo Trucking Inc. (Luongo). Luongo and Dowdy then entered into an agreement defining their relationship. That agreement described Dowdy as an independent contractor who would entertain offers from Luongo to haul material. The agreement specifically provided that it was not to be construed to obligate Luongo to tender trailer loads of freight for hauling to Dowdy or to obligate Dowdy to accept any offer made by Luongo. Dowdy was obligated to furnish a motor vehicle for the hauling and Luongo was to designate the place at which he should pick up and accept trailer loads of freight. Since the parties began their arrangement in 1998, Dowdy, although not legally required to do so, accepted work exclusively from Luongo.

 

 

Different considerations would apply if Dowdy were engaged in interstate hauling. See Felbrant v. Able, 80 N.J.Super. 587 (App.Div.1963).

 

The “lease” in effect at the time of the accidents did not specifically provide for a lease of the vehicle, but all parties have treated the document as a lease. In August 2002, a new writing was executed that explicitly created a lease and provided that Luongo would not provide insurance coverage when “Dowdy is driving into work and home from work[.]”

 

Luongo obtained insurance coverage for itself and Dowdy through NJM. The entire policy is not contained in the record before us, but the parties do not dispute the judge’s characterization of it as “covering Luongo Trucking and covering Mr. Dowdy while he was engaged in the business of Luongo Trucking.”

 

Dowdy also obtained a “non-trucking automobile liability insurance” policy from Connecticut. That policy excluded coverage for Dowdy’s tractor “while used in the business of anyone to whom the [tractor] is rented.” On appeal, Connecticut concedes that its “policy provides coverage only when the insured tractor is used in personal, non-trucking activity.”

 

The judge reasoned that the coverage question “boils down to whether or not Dowdy was engaged in the business of Luongo at the time the accident occurred.”  He then proceeded to consider the circumstances surrounding the two accidents in which Dowdy had been involved.

 

 

Connecticut, for the first time, now argues that if it is held responsible, NJM must bear an equal responsibility by virtue of the provisions of the NJM policy. That argument was not advanced before the motion judge, where all parties focused on whether Dowdy was “engaged in the business of Luongo[.]” We will not consider this argument for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We express no opinion as to the whether the issue may be raised by either a Rule 4:49-2 motion for reconsideration of, or a Rule 4:50-1 motion for relief from, the judgment we direct to be entered.

 

On July 29, 2001, Dowdy had completed his last run and had dropped off an empty trailer at the Luongo yard in Kearny. Although he might have left his truck there as well, he had declined to do so because Luongo charged a daily fee for leaving the truck at Luongo’s yard. Accordingly, instead of using a personal vehicle to travel from his home to the Luongo yard, Dowdy used the truck which, perforce, he also drove home at the end of the day. The accident occurred as he left the yard and entered the abutting highway.

 

On May 30, 2002, he was involved in another accident. This time, however, he was on his way from his home to the Luongo yard. He was driving the truck that would ultimately be used to haul the trailer to be picked up at Luongo’s yard. Dowdy had, that morning, received a call from Luongo tendering the offer of a load. He was on his way to accept that tender, although he had not communicated directly his intention to do so.

 

The judge analyzed the 2001 accident by saying:

[T]he question is whether or not at the time of the accident he was engaged in the business of Luongo. He had completed his loads. He had dropped off the trailer. His assignment was complete and he was heading home.

In light of the fact that he was an independent contractor, that he was not under the control or dispatch of Luongo at the time, [under the] circumstances of this case, there would be coverage under the [Connecticut] policy.

 

As to the May 30, 2002 accident, the judge found that:clearly Dowdy was acting under dispatch from Luongo. He had received his instructions from Luongo and, pursuant to those instructions, he was on his way to pick up the trailer in accordance with his agreement with Luongo. In fact, he was en route to pick up his trailer. Under those circumstances, there would be no coverage under the Connecticut Indemnity policy.

 

The judge therefore entered an order, dated July 23, 2004, granting NJM’s motion, denying Connecticut’s motion and compelling Connecticut to provide coverage for the 2001 accident. He also granted Connecticut’s motion, denied NJM’s motion and compelled NJM to provide coverage for the 2002 accident. Because Connecticut had begun the defense of the 2002 accident, the order also compelled NJM to reimburse any fees and costs expended by Connecticut in that defense. The amount of the fees was ultimately set at $11,414.54 by order dated December 9, 2004. These cross-appeals followed.

 

Since the judge’s decision was reached on cross-motions for summary judgment, we apply the same standard to resolve the issue as that employed by the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge’s interpretation of the law. Manalapan Realty L.P v. Twp. Committee, 140 N.J. 366, 378 (1995).

 

The parties have spent substantial effort in parsing the facts to determine whether Dowdy was Luongo’s servant or an independent contractor. We believe that analysis puts too fine a point on the dispute. While the distinction is necessary when determining if Luongo might be held responsible for Dowdy’s tort, the issue here is not one of imputed liability. It is, instead, one of insurance coverage that, as the judge appropriately noted, turns on whether Dowdy, at the time of an accident, was “engaged in the business of Luongo.” We see no reason why a policy provision could not insure an independent contractor who was, at the time of an accident, furthering the interests of one to whom he was contracted, even if the extent of that activity would not impose liability on the contracting party.

 

 

The judge correctly did not stop after determining that Dowdy was an independent contractor. He continued to determine if Dowdy was covered by the NJM policy. We agree with the judge’s conclusion that Dowdy was an independent contractor.

 

Nevertheless, under the circumstances and in light of the agreement of the parties that the coverage issue rests on the question of whether Dowdy was “engaged in the business of Luongo,” we think it helpful to consider analogous doctrines that give content to that phrase. In particular, the doctrine of respondeat superior assists in analyzing this issue. That doctrine requires an analysis of whether “at the time of the employee’s negligence, he or she can be said to be serving an interest of the employer along with a personal interest.” Carter v. Reynolds, 175 N.J. 402, 414 (2003). “Generally, an employee who is ‘going to’ or ‘coming from’ his or her place of employment is not considered to be acting within the scope of employment.” Id. at 412. Carter explains that the rationale supporting the rule relates to the lack of control and the essential unfairness of imposing liability upon an employer who derives no benefit from the commute. Id. at 413.

 

Exceptions to the rule have developed to cover those situations in which (a) an employee is engaged in a special errand on the employer’s behalf; (b) the employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks; or (c) the employee is on call. See Mannes v. Healey, 306 N.J.Super. 351, 354-55 (App.Div.1997). Those exceptions cover cases “in which the employee is said to be serving the interest of the employer along with a personal interest.” Carter v. Reynolds, supra, 175 N.J. at 414 (citing Gilborges v. Wallace, 78 N.J. 342, 351 (1978)).

 

Utilizing this analogous reasoning, we conclude the judge was clearly correct with respect to the 2001 accident. Dowdy was leaving Luongo’s property. He served no interest of Luongo and it is hard to see how Luongo’s business interests were furthered by Dowdy driving home.

 

Relying on the same reasoning, although the question is somewhat closer with respect to the 2002 accident, we find no support for the judge’s conclusion that Luongo’s business interests were furthered by plaintiff driving to the yard. Clearly, the judge erred by concluding that Dowdy was under dispatch. The contract between Luongo and Dowdy provided that Luongo could not require Dowdy to accept the tendered load. Dowdy was not “on call” and could have returned to his home at any time before accepting the tender.

 

For the same reason, Luongo would benefit from the commute only to the extent Dowdy actually arrived at the site with the vehicle needed to haul the trailer located at the yard. Moreover, Luongo did not require Dowdy to drive the truck to its workplace since Dowdy might have left the vehicle there and commuted in his own car. That he chose instead to store the truck at his home and use it to commute to the yard was coincidental. In short, Dowdy was not required to drive the truck to work and Luongo received no benefit unless Dowdy actually arrived with the truck.

 

Connecticut’s argument that, as a practical matter, Dowdy was unlikely to refuse the tendered load is, in the final analysis, unpersuasive. His right to refuse, which he might have exercised until arrival at the Luongo yard, controls.

 

The cases cited by Connecticut are distinguishable. In each case, the owner of the vehicle involved in an accident had no option other than to report for work and to bring a specified vehicle. As we have suggested, Dowdy’s contract permitted him to refuse to report and his arrangement with Luongo gave him the option of commuting with his truck or storing the truck and commuting by other means. On balance, we believe the aborted commute to Luongo’s yard did not sufficiently benefit Luongo so as to support a finding that, while commuting, Dowdy was “engaged in the business of Luongo Trucking.”

 

Since Connecticut was required to defend Luongo in the claim arising from the 2002 accident, the order compelling NJM to reimburse fees for that defense must also be reversed.

 

In sum we affirm the order of July 23, 2004, insofar as it required Connecticut to provide a defense for the 2001 accident; reverse it insofar as it required NJM to provide a defense for the 2002 accident; and remand for the entry of an order granting NJM’s motion for judgment determining Connecticut to be responsible for a defense for the 2002 accident. We also reverse the December 9, 2004, order respecting fees.

 

Affirmed in part; reversed in part and remanded.

United States District Court,N.D. Illinois,Eastern Division.

Gail CAMPFIELD, individually and as independent administrator of the Estate of Frank Campfield, Plaintiff,

v.

FALCON TRANSPORT CO., Defendant and Third Party Plaintiff,

v.

Roadco Transportation Svcs., Inc., Third Party Defendant.

.

 

Oct. 16, 2006.

 

 

 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

On the morning of September 2, 2004, a two-vehicle collision occurred on the Indiana Toll Road in Laporte County, Indiana. One of the vehicles, owned by defendant Falcon Transport Co. (“Falcon”), was heading eastbound when it collided with a truck parked on the right shoulder of the eastbound lanes. Third-party defendant Roadco Transport Services, Inc. (“Roadco”) operated the parked truck. The driver of the Roadco truck, Frank Campfield, was killed. Campfield’s widow, Gail Campfield, brought this suit against Falcon alleging that her husband’s death resulted from Falcon’s negligence. Falcon filed a third-party complaint against Roadco under the Illinois Joint Tortfeasor’s Contribution Act, alleging that Roadco’s own negligence proximately caused Campfield’s death, and seeking contribution from Roadco for Roadco’s pro rata share of any judgment against Falcon. Roadco has moved for summary judgment on the third-party complaint, arguing that-as a matter of law-no reasonable person could find that Roadco’s alleged negligence was a proximate cause of Campfield’s death. For the reasons stated below, the Court denies Roadco’s motion.

 

 

Facts

 

Though there are questions at this point as to the admissibility of certain of the matters set forth in the parties’ Rule 56 statements (particularly Falcon’s), the Court can deduce the following to provide an overview of the relevant facts. Roadco is a full-service trucking company operating primarily on the East Coast and in the Midwest. A few days prior to the September 2, 2004 accident, Roadco hired plaintiff Campfield as a truck driver. On the night of September 2, Roadco called Campfield into work to haul a load of cooking oil from Cicero, Illinois to Brecksville, Ohio.

 

Soon after departing on the route, Campfield encountered a fuel problem while on the Indiana Toll Road. Roadco trucks, including the one driven by Campfield, are equipped with a Qualcomm communication system that allows drivers to communicate with the company and enables the company to pinpoint the precise location of each truck. According to a toll receipt found in the Roadco truck, Campfield entered the Toll Road at 2:00 a.m. and sent a Qualcomm transmission to Roadco seeking assistance at 3:07 a.m. It appears that Campfield sent further transmissions indicating a problem with the truck at 3:08 a.m. and at 6:21 a.m. Around 8:00 a.m., Indiana Senior Trooper Maggie C. Shortt was dispatched to Campfield’s location after the state police received a call of a broken down truck and an individual walking away. Campfield apparently told Trooper Shortt that he had run out of fuel and had been sitting on the side of the road since around 3:30 a.m. Campfield also indicated that he had received no response from the company to the three Qualcomm messages he had sent. Trooper Shortt allowed Campfield to use her cell phone to call Roadco.

 

Around 9:36 a.m., Campfield was standing outside the Roadco truck on the left side of the vehicle, which was still parked on the right shoulder of the road. An eastbound truck, owned by Falcon and driven by Arthur Johnson, veered off the roadway and struck Campfield as it made contact with the side of the parked Roadco truck. Campfield was killed, and Johnson was severely injured. An accident investigator concluded, among other things, that Campfield had not placed any emergency triangles or lighted devices around the parked Roadco truck. The investigator further concluded from personal observation that the door latch inside the Roadco truck that would have given Campfield access to the emergency triangles was inoperable. Campfield could have accessed this equipment, although he would have had to crawl into the storage compartment from the other side of the truck. According to the accident investigator’s report, a postmortem toxicology screen performed by the coroner showed that Campfield had a blood alcohol level of .049% at the time of the accident.

 

As the Court stated at the outset, certain of these facts are likely inadmissible, at least for present purposes, because Falcon failed to cite to admissible evidence as required by Rule 56. For example, Falcon cited the accident investigation report to support its assertion that Campfield had a blood alcohol level of .049%, but did not attach the toxicology report itself, deposition testimony from the individual at the Laporte County Coroner’s Office who performed the lab analysis, or an affidavit. Rather, Falcon merely cited to the accident investigation report, which makes reference to the toxicology report. Roadco is correct that the accident investigation report is inadmissible for the purpose of demonstrating Campfield’s blood alcohol level, because the individual who prepared the report had nothing to do with performing the toxicology screen. See Miller v. Field, 35 F.3d 1088, 1091 (6th Cir.1994) (“police reports have generally been excluded except to the extent to which they incorporate observations of the officer.”) Several other facts cited by Falcon suffer the same infirmity. However, the Court can and will decide this motion without reliance on any of the facts cited by Falcon (including Campfield’s alleged blood alcohol level) that do not appear to have a proper foundation for admissibility.

 

 

Discussion

 

Summary judgment is proper when the evidence, viewed in the light most favorable to the non-moving party, presents “no genuine issue as to any material fact” such that “the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must construe all facts and any reasonable inferences in the light most favorable to the non-moving party.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

 

Falcon’s claim for contribution has two required elements: first, all parties must be liable in tort to the injured party, and second, all parties must be liable for the same injury. 740 ILCS 100/2(a). Vroegh v. J & M Forklift, 165 Ill.2d 523, 529, 651 N.E.2d 121, 125 (1995); see also, e.g., Alper v. Altheimer & Gray, 257 F.3d 680, 684 (7th Cir.2001). The second element is not at issue because all the claims in this action concern the same injury. The dispute between the parties is whether or not Roadco is liable in tort to Campfield, thereby giving Falcon a right of contribution.

 

Roadco’s liability depends on whether it had, and breached, a duty of care to Campfield, proximately causing Campfield’s injury. Springfield Bank and Trust v. Galman, 188 Ill.2d 252, 256, 720 N.E.2d 1068, 1071 (1999); Lee v. Chicago Transit Authority, 152 Ill.2d 432, 455, 605 N.E.2d 493, 502 (1992); Cannon v. Commonwealth Edison Co., 250 Ill.App.3d 379, 381, 621 N.E.2d 53, 54 (1993). Proximate cause has two requirements: cause in fact and legal cause. See Springfield Bank and Trust, 188 Ill.2d at 256, 720 N.E.2d at 1071; Lee, 152 Ill.2d at 455, 605 N.E.2d at 502; Knauerhaze v. Nelson, 361 Ill.App.3d 538, 549, 836 N.E.2d 640, 651 (2005). Cause in fact is proven by showing that the defendant’s action was a material element and a substantial factor in bringing about plaintiff’s injury. Springfield Bank and Trust, 188 Ill.2d at 257, 720 N.E.2d at 1071.

 

Legal cause “is essentially a question of foreseeability: a negligent act is a proximate cause of an injury if the injury is of a type which a reasonable man would see as a likely result of his conduct.” Lee, 152 Ill.2d at 456, 605 N.E.2d at 503 (quoting Masotti v. Console, 195 Ill.App.3d 838, 845, 552 N.E.2d 1292 (1990)). In cases in which the subsequent negligent act of a third party (in this case Falcon) is claimed to have directly caused the injury, assessment of whether a party (in this case Roadco) that committed some earlier negligent act can be held liable turns on whether that party’s conduct “was a material and substantial element in bringing about the injury” and whether “the intervening efficient cause was of a type that a reasonable person would see as a likely result of his or her conduct.” Springfield Bank and Trust, 188 Ill.2d at 259, 720 N.E.2d at 1072. Roadco has conceded that its conduct was a cause in fact of Campfield’s death, i.e., but for Campfield being stranded on the side of the road without fuel, he could not have been struck by the Falcon truck. See Motion for Summary Judgment at 7. Roadco argues, however, that its conduct was not the legal cause of Campfield’s death because it could not foresee that the Falcon truck would strike Campfield while his truck was parked on the shoulder. Falcon’s argument misses the mark.

 

Proximate cause is generally an issue for a jury to decide. It can, however, be determined as a matter of law if reasonable persons would not differ on the inferences to be drawn from the uncontested facts. Lee, 152 Ill.2d at 455, 605 N.E.2d at 503; Merlo v. Public Svc. Co. of Northern Ill., 381 Ill. 300, 318, 45 N.E.2d 665, 675 (1943); Mack v. Ford Motor Co., 283 Ill.App.3d 52, 58, 669 N.E.2d 608, 613 (1996).

 

Even based on the those facts that Falcon set forth in response to the motion for summary judgment that the Court can properly consider, it is clear that reasonable persons could draw different inferences from these facts and how they relate to Roadco’s potential liability. For example, there is no dispute that Campfield was stranded on the side of the Indiana Toll Road for over six hours, or that the latch that would have given him ready access to the emergency triangles and lighting devices was inoperable. A jury reasonably could conclude that Roadco was negligent by failing to send help for Campfield promptly and for sending him out in a truck with an inoperable latch on the door housing the emergency equipment. Taken together, these uncontested facts are sufficient to defeat summary judgment.

 

Roadco argues that it makes no difference whether Campfield was stranded on the side of the road for six minutes or six hours, because the accident still would have occurred when Johnson drove the Falcon truck on the shoulder where Campfield was parked. Reply Brief at 3-4. The Court disagrees. It would be reasonable for a jury to conclude that it became more likely that Campfield would be involved in an accident having spent six hours by the side of a busy commercial highway instead of six minutes.

 

Similarly, a jury reasonably could conclude that Roadco proximately caused the accident by sending Campfield out in a truck with a broken door latch on the compartment holding the emergency equipment. Roadco points out that Campfield could have accessed the emergency equipment “although [he] would have had to crawl into the storage compartment….” Reply Brief at ¶  51. Even so, a reasonable jury could conclude that Campfield was not physically able to access the equipment by crawling into the compartment, did not know he could access the equipment by crawling into the compartment, or any number of other conclusions on which the Court need not speculate. Moreover, a jury reasonably could conclude the safety triangles and lights-had Campfield been able to access and then place them-could have prevented the accident. It is not up to the Court on summary judgment to weigh the facts and decide that this was not the case, particularly because Falcon is the non-movant.

 

A summary judgment motion is not a trial-by-paper in which the court reviews all the evidence, determines which side’s version is more likely, and rules accordingly. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). On the contrary, a court addressing a summary judgment motion may not weigh the evidence and decide which competing inferences are more likely. See, e.g., Payne v. Pauley, 336 F.3d 767, 770 (7th Cir.2003). Rather, the Court must take the facts, and inferences reasonably drawn from them, in the light most favorable to the non-moving party. Morfin v. City of East Chicago, 349 F.3d 989, 996-97 (7th Cir.2003). In this case, Falcon’s interpretation of the facts-that Roadco proximately caused the accident by causing Campfield to be stranded for over six hours and providing a truck with an inoperable latch-cannot be disregarded by the Court while deciding a motion for summary judgment.

 

Roadco also argues that its conduct could not have been a proximate cause of the accident because “Roadco could not have foreseen that Mr. Johnson would drive his truck 35-40 inches onto the shoulder, where its truck was parked and Mr. Campfield was standing, as a result of the Roadco truck running out of fuel.” Motion for Summary Judgment at 4. Roadco, however, takes far too narrow a view of what subsequent negligent act must be foreseeable to find proximate cause. The law does not require the clairvoyance suggested by Roadco. Of course Roadco could not foresee that if one of its trucks ran out of fuel, another trucker would drive 35-40 inches onto the shoulder and strike Campfield. Roadco could, however, foresee that sending its driver out with insufficient fuel, providing a truck with an inoperable latch on the compartment housing the emergency equipment, and failing to send help for the stranded driver for over six hours would increase the chance that Campfield and the truck he was driving would be involved in an accident of the type involved in this case. Presumably Roadco provided emergency triangles and lights and equipped their vehicles with the Qualcomm communications gear precisely for this reason.

 

The Illinois Appellate Court addressed a factually similar situation in Mack v. Ford Motor Co., 283 Ill.App.3d 52, 669 N.E.2d 608 (1996). In Mack, the plaintiffs owned a Ford Mustang with an automatic fuel shut-off device that engaged if the car was involved in an accident. The plaintiffs were involved in an accident while driving on an interstate and the Mustang became disabled. The plaintiffs then had to manually push the disabled vehicle off of the road and onto the shoulder. One plaintiff was struck and killed by another car in the process of pushing the Mustang onto the shoulder. The court found that the issue of whether Ford was contributorily negligent was for a jury to decide, because a jury reasonably could determine that Ford could foresee that a car with a fuel shut-off device would be involved in an accident on an interstate, requiring the driver to push the car off the road. Id. at 58-61, 669 N.E.2d at 613-15. The court found that the collision that disabled the Mustang was not unforeseeable as a matter of law, “for [Ford] must be deemed to have designed the vehicle in anticipation of the very fact situation with which we are presented here: the car becomes disabled after a collision that leaves its driver unable to restart it, and he is required to exit the vehicle on a highway and open the trunk before he can even begin to restart it.” Id. at 58, 669 N.E.2d at 614. Similarly, Roadco equipped the truck with communications equipment and emergency triangles and lights so that if the vehicle became disabled, the driver could send for help and ensure that he could be seen by other drivers. Construing all reasonable inferences in favor of the non-movant, Roadco could reasonably foresee that if these systems failed, an accident could result.

 

 

Conclusion

 

For the reasons stated above, the Court denies Roadco’s motion for summary judgment [docket no. 100].