United States District Court,D. Connecticut.

Michael BARBARULA, Administrator of the Estate of Jing Xian He, Plaintiff,

v.

CANAL INSURANCE COMPANY, et al., Defendant.

No. 3:02-cv-1142 (EBB).

 

Aug. 3, 2006.

 

 

RULING ON MOTION TO ADD OFFER OF JUDGMENT AND OTHER INTEREST

ELLEN BREE BURNS, Senior District Judge.

Plaintiff Michael Barbarula, Administrator of the Estate of Jing Xian He, (“Plaintiff” or “Barbarula”), moves the Court for interest in connection with this Court’s Partial Summary Judgment ruling (Doc. No. 87) against Canal Insurance Company (“Canal”) as to the validity and applicability of a federally created “MCS-90” endorsement to Canal’s insurance policy (the “Policy”), at issue herein. In this Court’s Partial Summary Judgment ruling, the Court found that, while the underlying insurance policy was cancelled pursuant to state law, the MCS-90, which is controlled by federal law, with a separate cancellation provision, remained in effect and thus provided one million dollars in coverage.

 

Oral argument on Plaintiff’s motion was held on July 13, 2006. Plaintiff asserts that he is entitled to offer of judgment interest and postjudgment interest, not only on the $1 million awarded thus far in this pending federal case, but also on the $3.6 million judgment entered against Canal’s insureds in state court. Plaintiff argues that the policy and the endorsement are not separate, but rather the MCS-90 “revives” the underlying insurance policy, though the state court found that the policy was properly cancelled under state law. Canal v. Haniewski, No.CV-98-417942-S, 2001 WL 1517458 (Conn.Super.Ct. Nov. 13, 2001). Further, Plaintiff contends that the endorsement cannot have an existence of its own, and that without the policy, the MCS-90 is meaningless.

 

Canal, on the other hand, argues that the only document at issue for the purpose of litigation is the MCS-90. Canal also accepts that it is liable, per this Court’s ruling, for $1 million pursuant to the MCS-90. Canal takes issue with the position that interest is owed on the one million dollars. It argues that the terms of the MCS-90 are clear in that it does not provide for any payments to the injured party over the limits of the insurance policy, which in this case is $1 million.

 

 

FACTS

 

This case arises from a motor vehicle accident that occurred on September 12, 1996 at 6:31 p.m. on I-395 near Waterford, Connecticut. A tractor-trailer rig driven by Carlos Reummele on behalf of Barbara Haniewski and her company, Salguod Warehouse and Transport, collided with a car driven by Jing Xian He, exactly eighteen hours and thirty minutes after the insurance policy on the tractor-trailer was cancelled due to nonpayment. Ms. He died as a result of the accident. The insurer of the tractor-trailer involved in the fatal accident is the defendant in this case, namely Canal Insurance Company.

 

 

The trailer portion of the rig was leased from Eagle Leasing. Eagle is no longer a party to this action. Eagle was not sued by Plaintiff in the underlying state court action, either.

 

Initially, the deceased plaintiff’s representative, Michael Barbarula, filed a wrongful death suit in state court against Reummele, Haniewski, and Salguod Warehouse and Transport. (Barbarula v. Haniewski, No. CV-97-0437585-S (Conn.Super.Ct.1997)). Prior to trial in that case, on September 15, 1998, Canal filed a declaratory action in state court, naming Haniewski, Reummele, Eagle Leasing and Salguod Warehouse and Transport as defendants.  Canal v. Haniewski, No. CV-98-417942-S, 2001 WL 1517458 (Conn.Super.Ct. Nov. 13, 2001). Canal sought to be absolved of both the duty to defend and the duty to indemnify the defendants, who were also Canal’s insureds under the policy of insurance issued to them, as Canal claimed that the policy was properly cancelled pursuant to state law. It also sought reimbursement for costs and attorney fees incurred in connection with defending its insureds. On November 13, 2001, Judge Blue issued his ruling in the declaratory action. Judge Blue ruled that because the policy was properly cancelled under state law, Canal had no duty to defend its insureds. He also held that Canal was not entitled to attorney fees or costs, as they were sought in connection with the declaratory judgment action, and there was no basis for such an award. Judge Blue declined to rule on the issue of whether the MCS-90 endorsement to the policy, which is governed by federal law, was properly cancelled and what effect, if any, that would have on the pending wrongful death action.

 

 

Barbarula petitioned the court to be joined as a defendant later in the proceeding and the court granted his request.

 

On November 29, 2001, the jury in the wrongful death case against Haniewski, et al., produced a verdict for Plaintiff in the amount of $3.6 million. Plaintiff filed a motion to reopen the judgment and add offer of judgment interest to the verdict, as Plaintiff had offered to settle the case for $1 million. The court granted the request, and the judgment amount was increased to $5.7 million on April 24, 2002. (Exhibit I, Plaintiff’s Local Rule 56(A) 1 Statement).

 

Plaintiff next filed the instant action in federal court on July 1, 2002 against Canal, seeking compensation under Canal’s insurance policy via Connecticut’s direct action statute §  38a-321 and the MCS-90 endorsement attached to the insurance policy covering the tractor-trailer. Plaintiff also filed an offer of judgment in this case, in the amount of $1 million. Canal did not accept this offer to settle. This Court awarded plaintiff one million dollars in its partial summary judgment ruling, pursuant to the MCS-90 endorsement that was never cancelled pursuant to federal law, and now Plaintiff is seeking offer of judgment interest and postjudgment interest in both the underlying state case and in the instant federal case. Trial on Plaintiff’s remaining bad faith claim against Canal for failure to settle is scheduled to commence September 5, 2006.

 

 

LEGAL ANALYSIS

 

In a diversity of citizenship case, prejudgment interest is governed by state law, and postjudgment interest is governed by federal law. Brandewiede v. Emery Worldwide, 890 F.Supp. 79, 82 (D.Conn.1994) (prejudgment interest governed by state law); Charts v. Nationwide Mutual Insurance Co., 397 F.Supp.2d 357, 386, n. 24 (D.Conn.2005)(postjudgment interest governed by federal law). The statute governing postjudgment interest in a federal case is 28 U.S.C. §  1961. As for the state case, an award of postjudgment interest in Connecticut is a question of fact. “A decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court.” Bower v. D’Onfro, 696 A.2d 1285 (1997). Indeed, the statute governing postjudgment interest states that “interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions … as damages for the detention of money after it becomes payable.” Conn. Gen.Stat. §  37-3a).

 

 

A. The MCS-90, Insurance Policy, and Applicability of Pierre v. Providence Washington Insurance Company, 99 N.Y.2d 222 (N.Y.Ct.App.2002)

 

Before proceeding to the issue of interest in this case, the Court recognizes that it must address some preliminary issues, over which the parties differ greatly. Plaintiff insists that the MCS-90 cannot be a stand-alone document, and its function was to somehow “revive” the underlying insurance policy, and that the two documents are intertwined. Plaintiff cites to Pierre v. Providence Washington Insurance Co., 784 N.E.2d 52 (N.Y.2002), in support of his position. He argues that the cancellation terms of the MCS-90 also govern the underlying insurance policy. Plaintiff cites to a book published by the Chartered Property Casualty Underwriter Society, entitled The MCS-90 Book, to support his argument regarding the strict MCS-90 cancellation requirements. See Exhibit A to Plaintiff’s Further Reply Memorandum.

 

When the underlying insurance policy is in effect, the two documents indeed may be read together. Pierre, 784 N.E.2d at 60. But here, that is not the case. This Court notes that this is a case of first impression for any court in this circuit, possibly for the entire United States. As such, Pierre is simply not instructive. Never before (so far as this Court or the parties can tell) has there been a case where the underlying insurance policy has been cancelled and the MCS-90 has not been cancelled. But this is the scenario now before this Court. Plaintiff’s attempts to make the MCS-90 endorsement seem like any run-of-the-mill endorsement attached to an insurance policy is not correct and is not instructive. Clearly, a document that can provide compensation to a plaintiff where no coverage in the attached policy exists, and cause the insured to reimburse its insurer, is not a typical endorsement, and cannot be treated as such.

 

 

Canal Insurance Co. v. Carolina Casualty Insurance Co., 59 F.3d 281, 283 (1st Cir.1995)(federally mandated safety net created for the public, not a typical endorsement).

 

Additionally, Plaintiff’s position that the MCS-90 is not a stand-alone document is a dangerous one. If that were true, Plaintiff would recover nothing in either the state or federal court, as the policy was cancelled, and indeed it is only the MCS-90 that provides compensation in the form of a federally-designed “safety net” for members of the public injured by motor carriers.

 

Plaintiff points to a passage in The MCS-90 Book with respect to the strict cancellation provisions of the MCS-90, in support of his argument that the policy must still be in effect because the MCS-90 was not cancelled. The Court, however, found this passage in The MCS-90 Book more instructive to the matter at hand: “The real ugliness here is the reality that failure to give notice or properly effect a cancellation of the MCS-90 or policy (by issuing a BMC 35, 36, or 85), leaves the insurer obligated with respect to coverage under the MCS-90 endorsement, which remains continuously in effect until cancelled.” The MCS-90 Book, p. 65; see Exhibit A to Plaintiff’s Further Reply Memorandum. Thus, even Plaintiff’s own authoritative source bolsters the Court’s previous ruling that the MCS-90 is the only document at issue in this lawsuit.

 

 

B. Prejudgment (“Offer of Judgment”) Interest

 

In Connecticut, there is a strong public policy to engage in pretrial negotiations and to settle cases before trial. See Cox v. Peerless Insurance Co., 774 F.Supp. 83 (D.Conn.1991); Accettullo v. Worcester Insurance Co., 775 A.2d 943 (Conn.2001). This policy is the rationale behind Connecticut’s statute which awards prejudgment (also known as offer of judgment) interest to the plaintiff, should he offer to settle for the same or lower amount of money eventually awarded to him as a result of a completed trial. See Conn. Gen.Stat. §  52-192a. By enacting section 52-192a, the Connecticut legislature sought to encourage “fair and reasonable compromise between litigants” and to “penaliz[e] a party that fails to accept a reasonable offer of settlement.” Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 687 A.2d 506, 526 (Conn.1997). This Court must take that public policy into consideration, because in federal court, state law governs the award of prejudgment interest. Brandewiede v. Emery Worldwide, 890 F.Supp. 79, 82 (D.Conn.1994); Elgard Corp. v. Brennan Construction Co., 388 F.3d 30, 36-37 (2d Cir.2004)(applying Connecticut’s prejudgment or “offer of judgment” statute). This Court must balance the important state public policy concerns with the policies promulgated by federal law. Connecticut’s offer of judgment statute states as follows:

After trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiff’s offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount. The interest shall be computed from the date the complaint in the civil action was filed with the court if the offer of compromise was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the offer of compromise was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.

 

Conn. Gen.Stat. §  52-192a(c). As this Court concurs with Judge Blue’s ruling that the underlying policy was cancelled pursuant to state law, it now turns its focus to the federally mandated MCS-90 and whether offer of judgment interest should be awarded in conjunction with it.

 

Congress passed legislation enabling the MCS-90 endorsement to protect the public from interstate motor carriers who are inadequately insured. 49 C.F.R. §  387.7; The Integral Insurance Co. v. Lawrence Fulbright Trucking, Inc., 930 F.2d 258, 260 (2d Cir.1991). The endorsement is considered a “safety net,” providing coverage only when the underlying policy does not. Canal Insurance Co. v. Carolina Casualty Insurance Co., 59 F.3d 281, 283 (1st Cir.1995); accord, Minter v. Great American Insurance Co., 423 F.3d 460, 470 (5th Cir.2005). The MCS-90, standing alone, does not provide a duty to defend to an insured. Harco National Insurance Co. v. Bobac Trucking, Inc., 107 F.3d 733, 735-36 (9th Cir.1997). Its benefits are meant for the protection of society at large, not for other insurance companies or the insured. Canal Insurance Co. v. First General Insurance Co., 889 F.2d 604, 611 (5th Cir.1989). As a federally mandated form, it is not a typical endorsement to an insurance policy. Canal Insurance Co., 59 F.3d at 283. In fact, should the insurance company that issued the policy and the MCS-90 become obligated to pay a judgment pursuant to the MCS-90, it may seek reimbursement from the insureds.  Travelers Indemnity Co. of Illinois v. Western American Specialized Transportation Services, Inc., 409 F.3d 256, 260 (5th Cir.2005). Thus, the MCS-90 creates a surety relationship between the insured and the insurer. Harco National Insurance Co., 107 F.3d at 736.

 

Within the plain language of the endorsement, the MCS-90 does not provide for any additional payments beyond the limits of the underlying policy. Here, the policy limit was $1 million, which is incorporated into the MCS-90. “[T]he insurer agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance, or use of motor vehicles … regardless of whether or not each motor vehicle is specifically described in the policy….” See Doc. No. 42, Exhibit C to Plaintiff’s Statement of Facts. While the underlying insurance policy did in fact provide for payment of interest (See Doc. No. 42, Exhibit B to Plaintiff’s Statement of Facts, p. 2), that policy is not before us now, as it has been cancelled. Given that Canal no longer had a duty to defend its insureds due to the cancellation of the underlying insurance policy, it need not comply with the other terms found in the policy, either, including those pertaining to interest payments on judgments. Connecticut, however, has an offer of judgment statute, and a strong public policy backing it.

 

In Cox v. Peerless Ins. Co., 774 F.Supp. 83 (D.Conn.1991), the court discussed the underlying public policy of Connecticut’s offer of judgment statute, in that it was designed to encourage settlement. It stated that the award of prejudgment interest was a statutory right, triggered when a plaintiff files an offer of judgment with the court and subsequently receives a verdict for the same or a higher amount than the settlement offer on file. Cox, 774 F.Supp. at 86; Conn. Gen.Stat. §  52-192a. The court also noted that the award of offer of judgment interest, also known as prejudgment interest, was tied to the strategy of the defense and to the insurance policy. The insurance policy at issue in Cox was silent as to prejudgment interest, and stated only that it would cover “defense costs.” Shortly thereafter, the policy language was changed to read, “[w]e will pay damages for bodily injury or property damage…. Damages include prejudgment interest awarded against the insured.” Id. at 85. The court stated:

An award of prejudgment interest arises from a defense attorney’s strategic decision to reject an offer of settlement, and proceed to trial. Therefore, an award of prejudgment interest does not arise out of the action’s underlying controversy, and is not taxed to the defendant’s policy’s $50,000 limit of liability as “damages”, but rather is an expense associated with the “defense costs” and strategy of the case.

 

Cox, 774 F.Supp. at 86. In the present case, the underlying policy was cancelled under state law and the state court found there was no duty to defend, and this Court concurred. Canal, however, defended its insureds throughout the wrongful death case in state court. Canal’s decision to defend its insureds involved a concern that it might be liable for those defense costs, depending on how Judge Blue ruled on Canal’s declaratory judgment action and its duty to defend its insureds. The Superior Court ruled that Canal did not have a duty to defend, but the ruling was issued mere weeks prior to trial, and Canal was obliged to continue its defense of its erstwhile insureds.

 

Ultimately, the judgment in state court was against Haniewski, Salgoud, et al., not against Canal. The parties have provided the Court with little evidence as to who decided not to settle. There has been no presentation of evidence that would suggest that Canal’s insureds were not consulted about settlement or what, if anything, their opinions were on the subject. As such, the Court denies Plaintiff’s motion for offer of judgment interest in the state court case.

 

As for offer of judgment interest in the current federal action, this Court finds no reason to withhold such an award, aside from the fact that the decision on this issue is not yet ripe. This case was filed against the insurer itself and squarely addresses Canal’s responsibility, as issuer of the MCS-90 and the underlying policy, to compensate Plaintiff for the actions of its insureds. The Supreme Court of Connecticut faced just such a situation in Accettullo v. Worcester Insurance Co., 775 A.2d 943 (Conn.2001). In Accettullo, plaintiff was injured by an uninsured motorist while she was driving her father’s car. Accettullo, 775 A.2d at 945. Plaintiff brought suit against the insurer that issued the policy on her father’s car for uninsured motorist coverage. Id. Prior to trial, plaintiff filed an offer of judgment of $450,000. Defendant insurance company rejected this offer and the case proceeded to trial before an attorney trial referee, who awarded plaintiff $475,000. Plaintiff then filed a motion for judgment interest. The trial court upheld the award of $475,000 and granted plaintiff’s motion for interest. Defendant appealed, arguing that the uninsured motorist policy contained no provisions for payment of interest or costs beyond compensatory damages. Id.

 

The Supreme Court affirmed the trial court and upheld the award of offer of judgment interest. Id. at 947. The Court, citing to several state court of appeals cases as well as some of its own decisions, stated that when offer of judgment interest is requested and the request complies with the statute, the award of interest is mandatory. Accettullo, 775 A.2d at 946. The award does not involve an analysis of the underlying facts or circumstances, including an insurance policy that does not provide for payment of interest.  Id. In discussing the rationale behind the offer of judgment statute, the Court explained, “[t]his statutory provision clearly reflects the consequences at play when a party rejects a valid offer of judgment, proceeds to trial, consumes precious judicial resources, and ultimately is subject to a verdict that exceeds that offer. In this regard, the [insurance] policy limitations have no effect on the punitive nature of the statute or the clear legislative intent of §  52-192a to promote settlements and preserve judicial resources.” Id. at 946-47.

 

Though the MCS-90 itself contains no provision for interest payments, Accettullo instructs that the provisions of any document authorizing payment  does not factor in to a determination of whether the award of interest is appropriate. Clearly, Plaintiff is entitled to receive it, as the offer of judgment in this case was $1,000,000. In addition, the punitive nature of Connecticut’s offer of judgment statute correlates with Canal’s obstinate refusal, over the course of many years, to settle this matter.

 

 

It is of no consequence whether the operative document in question is a promissory note, see Paine Webber Jackson & Curtis, Inc. v. Winters, 579 A.2d 545 (Conn.App.1990), or an insurance policy, see Accettullo v. Worcester Ins. Co., 775 A.2d 943 (Conn.2001).

 

Plaintiffs submitted an offer of judgment in the pending federal case in the amount of $1,000,000 on December 2, 2002. The complaint was filed on July 1, 2002. This Court has ruled that Canal should have paid $1,000,000, pursuant to the policy limits. (Doc. No. 87, Ruling on Plaintiff’s Motion for Partial Summary Judgment.) The judgment in this Court, however, is not final per the Connecticut offer of judgment statute. The statute states: “After trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept….” Conn Gen.Stat. §  52-192a (c) (emphasis added). The summary judgment ruling by this court was not a final judgment, which is what the statute means by the phrase “after trial.”  Turek v. George, 687 A.2d 1309, 1313 (Conn.App.1997). At the conclusion of the trial on the bad faith claim in this case, this Court will figure the offer of judgment interest that Canal will owe Plaintiff. Currently, the interest amount in the federal action is $490,191.78.

 

 

This is based on the 12% per annum rate per statute and a 365-day year, from the date the complaint was filed to the date of final judgment. The statute was amended in 2005 to provide for eight per cent interest, but only applied to actions accruing on or after October 1, 2005. Prior to that date, twelve per cent was the rate of interest in the statute. Conn. Gen.Stat. §  52-192a.

 

C. Postjudgment Interest

 

Plaintiff also seeks postjudgment interest in both the state wrongful death case as well as the federal case currently before this court. In federal cases based on diversity of citizenship, federal law governs postjudgment interest, pursuant to 28 U.S.C. §  1961. See Charts v. Nationwide Mutual Insurance Co., 397 F.Supp.2d 357, 386, n. 24 (D.Conn.2005). This will not be ripe for decision, however, until this Court has ruled on the bad faith claim in September, which will be the “final judgment” in the federal case.

 

As for the state case, an award of postjudgment interest in Connecticut is a question of fact. “A decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court.” Bower v. D’Onfro, 696 A.2d 1285, 1288 (Conn.1997) (emphasis added). Indeed, the statute governing postjudgment interest states that “interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions … as damages for the detention of money after it becomes payable.” Conn. Gen.Stat. §  37-3a (emphasis added). When a party seeking postjudgment interest “cannot be said to have wrongfully delayed the matter and there is a rescript that modifies a judgment, postjudgment interest is to run from the date of the original judgment.” TDS Painting and Restoration, Inc. v. Copper Beech Farm, Inc., 808 A.2d 726, 739 (Conn.App.2002) (citations omitted).

 

Plaintiff moved to re-open the judgment and add offer of judgment interest after the final judgment was entered in the state case. The state court granted the motion on April 24, 2002, and thus increased the final judgment amount to approximately $5.7 million. Plaintiff diligently pursued prejudgment interest; yet, Plaintiff never sought postjudgment interest from the trial court in the state case. This Court has examined the case docket and checked with the state court clerk’s office to ascertain this fact. Connecticut law is quite clear that such an award is within the discretion of the trial court. The trial court in that matter was the Connecticut Superior Court. This court cannot provide Plaintiff with the relief he seeks, and his request is therefore denied.

 

 

CONCLUSION

 

Plaintiff is not entitled to interest at this time, and his motion is therefore denied.

 

SO ORDERED.

Appeals Court of Massachusetts.

Annemarie LEBRUN,

v.

THE STOP & SHOP SUPERMARKET COMPANY.

No. 05-P-1160.

 

July 31, 2006.

 

 

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

 

This case concerns the liability of The Stop & Shop Supermarket Company (Stop & Shop) for a tragic accident, in which a dolly converter (used to attach the second of two trailers to a truck) disengaged from a truck delivering a single trailer of juice to Stop & Shop. The dolly converter crossed several lanes of highway and the median, and killed the plaintiff’s decedent. A Superior Court judge granted Stop & Shop’s motion for summary judgment, ruling that Hills Trucking, Inc. (Hills), the trucking company that owned (and by a third party, operated) the truck involved in the accident and had been hired by Stop & Shop to deliver its goods, was an independent contractor, and that Stop & Shop was not subject to liability under any of the exceptions to the general rule that employers are not ordinarily liable for the negligence of an independent contractor. The Superior Court judge also ruled that the trucking activity involved was not an “inherently dangerous” activity, such that Stop & Shop would be liable for the negligence of its independent contractors. We affirm.

 

1. Factual background. Viewed in the light most favorable to the plaintiff under the governing summary judgment standard, the undisputed material facts are as follows. In 1999, Stop & Shop, an operator of supermarkets, entered into a contract with Hills for the delivery of goods, purchased by Stop & Shop from vendors, to Stop & Shop’s distribution warehouses. The agreement provides that Stop & Shop will designate a time and place of delivery of goods, and Hills is responsible for arranging the pick up of said goods to facilitate their timely delivery. The agreement explicitly states that “CARRIER [Hills] shall solely determine the means and methods of performance of all transportation services under this Contract undertaken by the CARRIER, and shall retain all responsibility for … maintenance of its tractor and trailer … for the safe and efficient operation and maintenance of its equipment and safe operation of the vehicles over the road.” The agreement further indicates that “CARRIER acknowledges that the vehicle operator will not in any way be under the direction, supervision or control of the RECEIVER [Stop & Shop] … [t]he CARRIER shall perform the services hereunder as an independent contractor.” Hills is required to carry insurance, including liability insurance and workers’ compensation insurance, and to indemnify Stop & Shop for any liability.

 

 

The contract is between Hills and Stop & Shop’s parent company, Ahold USA, Inc. As do the parties, we will use the term “Stop & Shop” to refer to both entities.

 

Hills subsequently entered into an agreement with Danny Farnham (Farnham) to operate Hills’s trucks and to transport goods. Hills was responsible for verifying that Farnham was properly trained and educated for operating trucks, for towing, and for use of truck equipment, including converter dollies that permit a truck to tow tandem trailers on certain interstate highways. Stop & Shop was not involved in Hills’s selection and training of its drivers.

 

At the time of the accident, Stop & Shop and Hills had been doing business under the contract for more than four years. Stop & Shop did not consult with Hills as to what type of trucks were used in its deliveries, and it had no knowledge of what types of trucking equipment Hills used to make the deliveries. Stop & Shop’s purchase orders were limited to one truckload of goods.

 

On July 2, 2003, Farnham was summoned by Hills to deliver a single trailer of fruit juice from Dunkirk, New York, to the Stop & Shop distribution center in Readville. Farnham was also asked to deliver a separate order, for pet food, to be transported in a second trailer, to Gardiner, Maine.  The two deliveries were combined into one tandem delivery, i.e., one tractor pulling two trailers, connected with a dolly converter. This combination of two trailers is not permitted on the roads of Massachusetts, except on the Massachusetts Turnpike. To exit the Turnpike and complete the first delivery, to Stop & Shop, Farnham was required to detach the second trailer and the dolly converter in a designated breakdown area of the Turnpike, near Weston. However, the dolly converter was not properly detached. Shortly after Farnham drove back on to the highway with the now single trailer loaded with fruit juice destined for Stop & Shop, the converter, still attached to the now single trailer, came loose and traveled across the highway median. The converter struck the vehicle in which the plaintiff’s decedent was traveling as a passenger and killed the plaintiff’s decedent.

 

 

The evidence before the motion judge concerning the accident included a Massachusetts State police accident reconstruction report. Stop & Shop objected to the admission of this report and moved to strike it, arguing that the report contained multiple levels of hearsay and would be inadmissible at trial. The record does not reflect whether the judge ruled on this motion to strike. Nevertheless, in his decision on Stop & Shop’s motion for summary judgment, the judge referenced factual information from this report. Because our determination as to Stop & Shop’s liability rests on the nature of the contract between Hills and Stop & Shop, we need not further address the judge’s consideration of the report with respect to the facts involving the accident occurrence.

 

Although there appears to be some dispute between the parties concerning whether a particular affidavit, supporting the fact that the second trailer was destined for a customer other than Stop & Shop, was properly before the motion judge, the evidence in the record was that Farnham was summoned by Hills to deliver only a single trailer of juice to Stop & Shop, and that the second trailer was not part of the Stop & Shop order. There is no evidence in the record that would tend to dispute this fact.

 

2. Hills’s status as independent contractor. Despite the language in the contract between Hills and Stop & Shop designating Hills an independent contractor, the plaintiff argues that Hills was not, in fact, an independent contractor, but was acting as Stop & Shop’s agent or employee, and that Stop & Shop should be held liable under the doctrine of respondeat superior. “To determine whether one is an employee or an independent contractor, we look to certain indicia of the employment relationship. Whether an individual is an employee … or whether the individual is an independent contractor is ordinarily a question of fact.” National Assn. of Govt. Employees v. Labor Relations Commn., 59 Mass.App.Ct. 471, 474 (2003), and cases cited. “If in the performance of his work an individual is at all times bound to obedience and subject to direction and supervision as to details, he is an employee; but if he is only responsible for the accomplishment of an agreed result in an agreed manner, he is an independent contractor.” Brigham’s Case, 348 Mass. 140, 141-142 (1964). “The primary test is whether one has a right to control the individual’s work performance.” National Assn. of Govt. Employees, supra.

 

 

The principle of respondeat superior provides that “an employer … should be held vicariously liable for the torts of its employee … committed within the scope of employment.” Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319-320 (2002).

 

As quoted above, the contract in this case provides that Hills is solely responsible for the means and methods of its performance under the contract. The plaintiff presented no evidence that Stop & Shop had any control over the manner in which Hills provided delivery, including the selection of trucks and trailers, the training of drivers, or the determination of the route taken. The only directive given by Stop & Shop, under the contract, was the time and date by which delivery was to be made. In other words, Hills was “only responsible for the accomplishment of an agreed result in an agreed manner.” Brigham’s Case, supra at 142. Simply put, no evidence existed in the record that Hills (or Farnham, Hills’s employee) was the agent or employee of Stop & Shop, and the plaintiff had “no reasonable expectation of proving [this] essential element of [her] case.” Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319 (2002), quoting from Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

 

3. Inherently dangerous activity exception. It is well established that, as an employer of an independent contractor, Stop & Shop would ordinarily not be liable for Hills’s negligence (or, further, for the negligence of Farnham, Hills’s employee). Santella v. Whynott, 27 Mass.App.Ct. 451, 453 (1989), citing Restatement (Second) of Torts §  409 (1964). The plaintiff argues that, even if Hills is an independent contractor, this case falls under an equally well-established exception to this rule, namely, that “one who hires an independent contractor to perform work which is inherently dangerous is liable for failure to take precautions.” Vertentes v. Barletta Co., 392 Mass. 165, 168 (1984), citing Whalen v. Shivek, 326 Mass. 142, 150 (1950). See Restatement (Second) of Torts §  416 (1965). The question posed for summary judgment is whether the work Stop & Shop hired Hills to perform was inherently dangerous, or, put another way, created “a peculiar risk of physical harm to others,” within the meaning of this rule. Ibid. We determine that it was not.

 

 

Section 416 does not employ the term “inherently dangerous,” but applies to an activity “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.”

 

The commentary to the Restatement (Second) of Torts is instructive: “A ‘peculiar risk’ is 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…. 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, supra at §  416 comment d, at 397. The plaintiff urges that the task performed by Hills in this instance is akin to the transportation of giant logs, and argues that, at the very least, a jury question is presented as to whether Hills was engaged in an inherently dangerous activity. We disagree.

 

The plaintiff would urge this court to conflate the activity performed by Hills, the use of tandem trailers attached by a dolly converter, with the activity Stop & Shop hired Hills to perform: the transportation of a single trailer of fruit juice across State lines. The rule of employer liability for independent contractor negligence “has no application where the negligence of the contractor creates a new risk, not inherent in the work itself or in the ordinary or prescribed way of doing it, and not reasonably to be contemplated by the employer.” Restatement (Second) of Torts, supra at §  427 comment d, at 417. Here, the undisputed evidence in the record demonstrates that Stop & Shop requested that Hills deliver a single trailer, and that Hills’s decision to combine the Stop & Shop delivery with another delivery was a “new risk” created by Hills and not inherent in the work commissioned by Stop & Shop. In this case, the plaintiff has not established that Stop & Shop had responsibility for or control over this aspect of Hills’s operation, i.e., the use of tandem trailers. Put another way, “the danger of which the plaintiff complains was due not to the nature of the work but to the negligent performance by the contractor of a detail which it was not intended or expected that it would do.” Kunan v. DeMatteo, 308 Mass. 427, 430 (1941).

 

 

The plaintiff urges this court to consider whether Stop & Shop knew or had reason to know that Hills would use tandems to combine Stop & Shop deliveries with other deliveries. The plaintiff points to no evidence in the record to support this allegation, however, nor is it a reasonable inference from the other evidentiary materials. An “unsubstantiated speculation as to what future evidence might show is insufficient to avoid summary judgment.” Hanover Ins. Co. v. Leeds, 42 Mass.App.Ct. 54, 59-60 n. 6 (1997).

 

Given our conclusion, we are not required to reach, in this case, the question whether the use of tandem trailers may, in certain circumstances, constitute an “inherently dangerous activity .”

 

As Stop & Shop did not hire Hills to perform a delivery involving the use of tandem trailers, the only way the plaintiff could survive summary judgment would be if the interstate trucking of a single trailer of fruit juice were, as matter of law, an inherently dangerous activity. As the trial judge correctly found, such a determination “would impose a huge burden and risk on any business which orders product and arranges for it to be transported by an independent trucking firm.” Interstate trucking of such a commodity is an ordinary, everyday activity. “The imposition of vicarious liability on the employer of an independent contractor who fails to take reasonable precautions in performing inherently dangerous work ‘is grounded in a recognition that the possibility of harm to others is so great when the work activity is inherently dangerous that the law tolerates it only on terms insuring the public against injury.” ’ Vertentes v. Barletta Co., 392 Mass. at 175, quoting from Jackson v. Petit Jean Elec. Co-op, 270 Ark. 506, 510 (1980) (Abrams, J., concurring). This simply cannot be said about interstate trucking, and the plaintiff proffered no evidence that could lead a rational jury to determine that Stop & Shop hired Hills to engage in an inherently dangerous activity.   Because “no rational view of the evidence” would permit a finding of liability, summary judgment was appropriate. See Roderick v. Brandy Hill Co., 36 Mass.App.Ct. 948, 949 (1994).

 

 

The plaintiff’s reliance on Barry v. Keeler, 322 Mass. 114, 126-127 (1947), in support of this proposition is unavailing. The Barry case involved the liability of an interstate contract carrier (such as Hills Trucking) for the negligence of its independent contractor driver, relying on Restatement of Torts §  428 (1934), which provides that an entity “carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Stop & Shop, here, was acting as a customer of Hills and was not operating in connection with this incident as an interstate contract carrier. Furthermore, the Barry case cannot be read to stand for the proposition that interstate trucking does, in fact, pose an “unreasonable risk of harm to others,” as the Barry court explicitly stated that it accepted the principle of this section of the Restatement “without adopting the word ‘unreasonable’ as wholly appropriate in this connection.” Barry v. Keeler,supra at 127.

 

4. Motion for reconsideration. “[T]here is no duty to reconsider an issue or a question of fact or law, once decided….” Phoenix Home Life Mut. Ins. Co. v. Brown, 49 Mass.App.Ct. 657, 661 (2000). The plaintiff argues that newly submitted materials  included with the motion for reconsideration should have compelled the judge to reconsider. Even assuming, arguendo, that these materials were properly before the court, cf. Clamp-All Corp. v. Foresta, 53 Mass.App.Ct. 795, 808 (2002) (where party failed to offer “any reasonable excuse for its failure to submit the materials included with its motion for reconsideration earlier,” the judge is “not required even to consider the motion for reconsideration, let alone to allow it”), none of these materials counter the conclusion reached by the motion judge, nor do they counter the analysis above.

 

 

These materials included, but were not limited to, the affidavit of an alleged expert stating that double trailer combinations have special handling characteristics, and information concerning the weight of the trailers and dolly converter involved.

 

5. Attorney’s fees and costs. While we consider the plaintiff’s arguments to be unpersuasive, we do not consider them frivolous. Accordingly, the defendant’s motion for attorney’s fees and costs under Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), is denied.

Judgment affirmed.