Court of Appeals of Texas,Dallas.

Rhonda HOGAN, Appellant

v.

J. HIGGINS TRUCKING, INC., Higgins Trucking, and Johnny Higgins, Individually and d/b/a Higgins Trucking, Appellees.

No. 05-05-00617-CV.

 

July 26, 2006.

 

Before Justices WRIGHT, LANG, and LANG-MIERS.

 

OPINION

Opinion by Justice WRIGHT.

Rhonda Hogan appeals the traditional and no-evidence summary judgments granted in favor of J. Higgins Trucking, Inc., Higgins Trucking, and Johnny Higgins, Individually and d/b/a Higgins Trucking (collectively “Higgins”). In three issues, Hogan argues the trial court erred by granting summary judgment because (1) there is evidence that Anthony Jackson was operating under the Higgins’ Texas Department of Transportation certificate at the time of the collision and is vicariously liable; (2) she presented evidence that Higgins controlled or had a right to control Jackson’s driving resulting in liability; and (3) the statutory employment doctrine under the Federal Motor Carrier Safety Regulations does not bar her claims. Because she has raised a genuine issue of material fact regarding control resulting in liability and Higgins’ duty to her, we reverse the trial court’s traditional and no-evidence summary judgment and remand this case to the trial court.

 

 

Factual and Procedural Background

 

In January 2000, Higgins signed a subcontracting agreement with Thurman Transportation, which allowed Higgins to service the subcontract with trucks and drivers from outside the Higgins company. Higgins found several additional trucks and drivers to handle the Thurman business through MTR Trucking. Although Higgins and MTR did not enter into a leasing agreement, their relationship began in January 2001. Anthony Jackson was hired as a driver to service the Thurman subcontract.

 

This case involves the collision of two gravel trucks and the resulting injuries to appellant Rhonda Hogan. The truck, with the MTR logo, was driven by Jackson. Hogan drove the other truck.

 

During this time, Jackson had been hauling gravel exclusively for Higgins for so long that he could not remember the last time he hauled for anyone else. When Jackson received orders about a certain job, he sometimes received a dispatch directly from Higgins or indirectly through MTR. Generally, when Higgins dispatched him directly, he would tell him what to pick up, where to pick it up, whether to wash it, and then where to take it. Although he sometimes drove a truck with the MTR logo, when he picked up a Higgins’ load he identified himself as a Higgins’ driver.

 

On August 27, 2001, Hogan was waiting in a line of gravel trucks to pick up a load at Hanson Aggregate’s Perch Hill Quarry. Jackson, who had been dispatched by Higgins but was driving a truck with the MTR logo, exited his truck and left it unattended to assist a fellow driver with a broken CB radio. Although he set the parking brake, it malfunctioned causing the truck to roll forward, rear-end Hogan’s truck, and injure her neck. Following the accident, Jackson went to Higgins’ office where Mr. Higgins, Jr. requested him to sign an “Agreement to Release Driving Information.” This document described Jackson as “driver” and Higgins as “employer.”

 

Hogan later filed suit against Higgins, Jackson, and MTR alleging negligence, vicarious liability, strict liability, negligence per se, and negligent entrustment. Higgins filed a traditional and no-evidence motion for summary judgment arguing that under the “statutory employment” doctrine Higgins was immunized from all liability, and there was no evidence to support Hogan’s negligence, negligent entrustment, and negligence per se claims. The trial court granted the motion as to statutory employment, negligent entrustment, and negligence per se, but denied it as to negligence.

 

After Hogan added a breach of contract claim, Higgins filed a second motion for summary judgment on the breach of contract claim and urged the court to reconsider its ruling on the negligence cause of action. The court then granted the second motion for summary judgment. Hogan proceeded to a bench trial with MTR and Jackson. The trial court entered judgment against them in the amount of $345,000.

 

On appeal, Hogan urges three specific grounds for reversal of the summary judgment contending she raised fact issues on (1) vicarious liability, (2) right to control, and (3) inapplicability of the statutory employment doctrine. Each of these contentions relate to her negligence claim. Because she has not raised and argued any issues regarding her negligence per se, breach of contract, or negligent entrustment claims, they are not within the scope of this appeal. See Tex.R.App. P. 38.1(e).

 

 

Standard of Review

 

The standard for reviewing a traditional summary judgment under Texas Rule of Civil Procedure 166a(c) is well established. Tex.R. Civ. P. 166(c); Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994). As the reviewing court, we must (1) place the burden of showing that there is no genuine issue of material fact on the movant; (2) take all evidence favorable to the nonmovant as true; and (3) indulge every reasonable inference and resolve all doubts in favor of the nonmoving party. Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex.App.-Dallas 2004, pet. denied).

 

The same legal sufficiency standard of review that is applied when reviewing a directed verdict is also applied when reviewing a no-evidence summary judgment. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). We must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. at 833. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”  Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

 

When, as here, the trial court does not specify the basis for its summary judgment ruling, the appellant must show that each independent ground alleged is insufficient to support the judgment. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Caldwell, 125 S.W.3d at 789. Both the no-evidence and traditional grounds for summary judgment are evaluated to determine whether the trial court was correct under any theory. Alaniz v. Hoyt, 105 S.W.3d 330, 34 (Tex.App.-Corpus Christi 2003, no pet.). We must affirm the summary judgment if any of the movant’s theories, which supports the summary judgment, has merit. Star-Telegram, 915 S.W.2d at 473.

 

 

Evidentiary Considerations

 

We begin by determining what summary judgment evidence was before the trial court at the time it ruled on appellant’s negligence claim. Higgins contends that we may not consider Jackson’s Affidavit, attached to Plaintiff’s Response to Higgins’ Second Motion for Summary Judgment, because the affidavit directly contradicts Jackson’s prior deposition testimony and, therefore, is nothing more than a “sham affidavit” attempting to create a fact issue.

 

Higgins objected to the affidavit in their Reply to Plaintiff’s Response to Defendants’ Second Motion for Summary Judgment. However, the record contains no evidence that the trial court expressly sustained their objection to the affidavit. The Texas Rules of Appellate Procedure permit a trial court’s ruling to be either express or implied. Tex.R.App. P. 33.1(a)(2)(A). A ruling is implicit if it is unexpressed, but capable of being understood from something else. Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex.App.-San Antonio 2000, no pet.). However, for there to be an implicit ruling, there must be some indication that the trial court ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment. Broadnax v. Kroger Texas, L.P., 05-04-01306-CV, 2005 WL 2031783, *1-2 (Tex.App.-Dallas 2005, no pet.); SSP Partners v. Gladstrong Inv. (USA) Corp., 169 S.W.3d 27, 34 (Tex.App.-Corpus Christi 2005, pet. filed).

 

There is a split of authority regarding whether, pursuant to Texas Rule of Appellate Procedure 33.1(a)(2)(A), an objection to summary judgment evidence can be preserved by an implicit ruling without a written, signed order. See Stewart v. Sanmina Texas L.P ., 156 S.W.3d 198, 206 (Tex.App.-Dallas 2005, no pet.). However, this Court has determined the “better practice is for the trial court to disclose, in writing, its ruling on all evidence before the time it enters the order granting or denying summary judgment.” Broadnax, 2005 WL 2031783, at *1-2; Stewart, 156 S.W.3d at 206. On this record, we decline to conclude that the trial court implicitly ruled on Higgins’ objection regarding the “sham” affidavit. Therefore, we must now determine whether they properly preserved the objection on appeal.

 

For preservation purposes, an appellate court treats a party’s objections to defects in “form” and “substance” of a document differently.  Brown v. Brown, 145 S.W.3d 745, 751 (Tex.App.-Dallas 2004, pet. denied). Defects in form of an affidavit must be objected to, and the opposing party must have the opportunity to amend. Id. The failure to obtain a ruling on an objection to a defect in form waives the objection. Id. Defects in substance of the affidavit, however, are not waived by a failure to obtain a ruling from the trial court and may be raised for the first time on appeal. Stewart, 156 S.W.3d at 207.

 

[10] Higgins’ general objection that Jackson’s affidavit is a sham affidavit because it contradicts his earlier deposition testimony is an objection complaining of a defect in form of his affidavit. Broadnax, 2005 WL 2031783, at *4; Choctaw Prop., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex.App.-Waco 2003, no pet.) (holding that objection of an interested witness that is not clear, positive, direct, or free from contradiction is defect in form complaint). Therefore, because it is a defect in form and Higgins failed to obtain a ruling on the objection, their arguments are not properly preserved for appellate review. Accordingly, we may consider Jackson’s affidavit in our review of the merits of this appeal.

 

 

Negligence

 

[11] The trial court originally denied Higgins’ motion for summary judgment on Hogan’s negligence claims; however, in their second motion for summary judgment, they re-urged their statutory employment doctrine arguments, and the trial court granted the motion. On appeal, Hogan argues that even if MTR is Jackson’s statutory employer, Higgins can still be vicariously liable for Jackson’s negligence and directly liable for their own negligence under applicable state law principles. Higgins, however, contends that the Federal Motor Carrier Safety Regulations preempt any application of common law. As discussed below, because we hold that Higgins’ possible negligence is not preempted by federal law, we do not address either parties’ arguments regarding statutory employment.

 

Under the authority of title 49 of the United States Code section 14102, the Interstate Commerce Commission regulates leases of equipment used in interstate commerce. 49 U.S.C. §  14102. During the first half of the century, interstate motor carriers attempted to immunize themselves from liability for negligent drivers by leasing trucks and classifying drivers who operated the trucks as independent contractors. Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37 (Tex.App.-Fort Worth 2002, no pet.); White v. Excalibur Ins. Co., 599 F.2d 50, 52 (5th Cir.1979). In 1956, Congress amended the Interstate Common Carrier Act to require interstate motor carriers to assume full direction and control of the vehicles that they leased “as if they were the owners of the vehicle.” Morris, 78 S.W.3d at 38.

 

The purpose of the amendments was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants. Id. The Interstate Commerce Commission later issued regulations that required a certificated interstate carrier who leases equipment to enter into a written lease with the equipment owner providing that the carrier-lessee shall have exclusive possession, control, and use of the equipment, and shall assume complete responsibility for the operation of the equipment for the duration of the lease. See 49 C.F.R. § §  376.11-.12 (2005). These regulations are known as the Federal Motor Carrier Safety Regulations.

 

Here, it is undisputed that no lease agreement exists between Higgins and MTR; however, even if the parties had entered into a lease, case law has not interpreted the language of title 49, section 376.12(c) of the Code of Federal Regulations to preempt common law liability. In Simmons v. King, the Fifth Circuit held that although one ICC carrier was the statutory employer as a matter of law for the driver of the truck involved in a collision, this did not prevent possible liability under common law standards of control for another ICC carrier. Simmons v. King, 478 F.2d 857, 867 (5th Cir.1973) (noting that the non-statutory employer may have a practical control over the driver that would not allow it to obtain an automatic insulation from liability from the mere terms of a lease between two parties); see also Hiltgen v. Sumrall, 47 F.3d 695, 704 (5th Cir.1995) (holding that legal responsibility of the lessee mandated by the federal regulations did not preclude the lessor’s liability under common law standards of control).

 

Although these cases involve leases between two parties under title 49, section 376.12 of the Code of Federal Regulations, by holding that the lessor could still be responsible despite the lease, the courts essentially held that the presence of a lease was immaterial. Hiltgen, 47 F.3d at 705 (holding that an employer can be subject to vicarious liability based on a right or power to control an employee’s actions despite the intervention of a written equipment lease). This is further supported by the Third Circuit in Carolina Casualty Insurance Co. v. Insurance Co. of North America, 595 F.2d 128, 146 (3d Cir.1979):

Whatever preemptive effect the ICC regulations may have in that limited field cannot form a basis for arguing that federal law also displaces state law doctrines governing master-servant relationships, respondeat superior, contribution among tortfeasors, or even ordinary negligence. [citations omitted] Indeed, so massive a disruption of the tissue of state law would be extraordinary in the American legal framework.

 

Id. Further, as noted above, one of the purposes of amending the Interstate Common Carrier Act to include specific lease requirements was to prevent the type of confusion we have here as to financial responsibility. Simply because Higgins and MTR failed to enter into a lease agreement, thereby creating this confusion, Higgins should not be allowed to hide behind the protection of the federal regulations and insulate themselves from liability if they had practical control over Jackson at the time of the collision. As such, Higgins does not escape Hogan’s negligence claims because of preemption. Therefore, as the court did in Hiltgen, we must consider the relevant facts and determine if a genuine issue of material fact exists regarding Higgins’ control of Jackson. Hiltgen, 47 F.3d at 704.

 

To succeed on her negligence cause of action, Hogan must establish a breach of a duty causing harm. D. Houston, Inc. v. Love, 92 S.W.3d 450, 451 (Tex.2002). The non-existence of a duty would end the inquiry into whether liability can be imposed at all. Vanhorn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998). However, liability for Jackson’s fault in the accident may be imputed to Higgins because of the relationship between them. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 540 (Tex.2002). The most important factor we consider is whether Higgins had a right to control Jackson’s activities allowing vicarious liability to be imposed. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.1998). “The most frequently proffered justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent’s or employee’s work.”  Id.; see also Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex.1996) (noting that right to control remains the “supreme test” for whether vicarious liability will be imposed). This includes specific control over the injury-causing activity, which here, is Jackson’s failure to check the brake system before departure, driving with defective brakes, and leaving the truck running and unattended. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 199 (Tex.1995).

 

Higgins repeatedly argues that it is undisputed that they were not Jackson’s employer, but rather MTR exercised complete control over his actions. After reviewing the summary judgment record, we cannot agree.

 

As noted above, we may consider Jackson’s affidavit attached to Hogan’s Response to Defendants’ Second Motion for Summary Judgment, as well as other evidence favorable to the nonmovant. Jackson stated that when he was picking up or delivering a load for Higgins, as he was on August 27, 2001, Higgins had the right to control his truck driving activities and the details of his work if they chose to do so. He further stated it has “always been this way,” and Higgins had the right to order him to do things like conduct a pre-trip truck inspection, test the parking brake, direct him to take a particular route, and cancel or add loads to his daily work schedule. “One way to describe my relationship with Higgins Trucking is this. When I was assigned to pick up and deliver a Higgins load, Higgins Trucking was my boss.” He made similar statements in his deposition. He also stated in his affidavit that he was instructed to meet with Higgins the day after the accident. During this meeting, he signed an “Agreement to Release Driving Information” in which he was described as “driver” and Higgins as “employer.” Jackson also stated that he had been hauling gravel for Higgins for so long that he could not remember the last time he hauled for anyone else.

 

These facts are similar to those found in Hiltgen. In that case, the driver testified that he considered Abston his boss, after the accident the driver contacted Abston to report it, and the driver’s activities were in furtherance of Abston’s business. Hiltgen, 47 F.3d at 705. The court determined a genuine issue of material fact existed regarding the carrier’s control over a driver, despite another carrier being the statutory employer.

 

Here, the evidence shows that Higgins directed the details of the loads and pick ups and was Jackson’s “boss.” Jackson’s affidavit specifically stated that when he was driving a Higgins’ load, they had the right to control his trucking activities and make certain orders, such as conducting a pre-trip inspection, testing the parking brake, and directing his route.

 

[12] Therefore, taking all evidence favorable to Hogan as true and indulging every reasonable inference in her favor, we conclude more than a scintilla of evidence exists to create a genuine issue of material fact regarding Higgins’ control of Jackson. See Shaw, 73 S.W.3d at 478 (noting that conflicts in deposition and affidavit presented a fact issue). As such, the trial court improperly granted summary judgment on Hogan’s negligence claims.

 

In reaching this conclusion, we necessarily conclude Higgins’s reliance on Ely v. General Motors Corp. is misplaced. Ely v. Gen. Motors Corp., 927 S.W.2d 774, 778 (Tex.App.-Texarkana 1996, writ denied). In Ely, General Motors offered summary judgment evidence that it had no control over the driver conducting tests under a warranty, which resulted in a car wreck killing a man. Id . It did not hire the driver, compensate him, direct the details of the warranty work, or have actual control over the test drive. Id . The court noted that “Ely presented no summary judgment evidence … that General Motors had the right to control Durham during the act resulting in the wrongful death action, namely the test drive.” Id. Unlike Ely, Hogan presented evidence that Higgins had the right to control Jackson’s trucking activities during the collision that resulted in Hogan’s injuries and direct the details of his activities. Such evidence establishes that Jackson was not free to do the work according to his own discretion. Thus, we sustain Hogan’s second issue.

 

Because we conclude that a fact issue exists regarding Hogan’s negligence claim under the theory of control and whether Higgins had a duty to Hogan, we need not address Hogan’s third issue regarding whether Higgins could be vicariously liable for any negligence by Jackson while operating a motor vehicle under Higgins’ Texas Department of Transportation certificate. See, e.g., Fulcrum Cent. v. AutoTester, Inc., 102 S.W.3d 274, 279 (Tex.App.-Dallas 2003, no pet.) (holding that because a fact issue existed on the parties’ intent, it need not address remaining grounds creating possible fact issues). As such, we reverse the trial court’s judgment and remand for further proceedings.

 

 

Higgins argues in their brief that they properly objected to the affidavit as being conclusory; however, in their Reply to Plaintiff’s Response to Defendants’ Second Motion for Summary Judgment they only objected to conflicting prior testimony rendering the affidavit improper summary judgment evidence. Thus, we consider only that objection.

 

Higgins briefly argued that there is no genuine issue of material fact regarding causation; however, the argument focuses on a lack of control. As noted above, there is a genuine issue of material fact regarding Higgins’ control of Jackson resulting in a duty. Further, there is evidence that Higgins did not check the qualifications of Jackson to drive a commercial truck until after the accident. His affidavit states that he did not provide his driver’s license information or social security card to Higgins until after the collision. Likewise, even if Jackson had provided this information prior to the collision, Higgins admitted in his deposition that the only independent investigation into a driver’s qualifications was to look at a driver’s license, social security card, and medical examiner’s certificate. This is more than a scintilla of evidence that Higgins’ failure to inquire into Jackson’s competency was a cause of the collision. As such, the trial court erred in granting summary judgment.

United States District Court,E.D. Michigan,Southern Division.

DIANE’S TRUCKING, LLC d/b/a Load One, Plaintiff,

v.

HOLMES QST., INC., Holmes Quick and Safe Transport, Inc., and Robert Foster d/b/a Tab Transport, Defendants.

andHolmes QST., Inc., Defendant/Cross-Plaintiff

v.

Robert E. Foster, d/b/a Tab Transportation, Defendant/Cross-Defendant.

No. 05-72635.

 

July 31, 2006.

 

ORDER DENYING DEFENDANT HOLMES’ MOTION FOR SUMMARY JUDGMENT AGAINST (1) PLAINTIFF LOAD ONE AND (2) CROSS DEFENDANT FOSTER

PAUL D. BORMAN, District Judge.

 

BACKGROUND:

 

This is a trucking cargo claim brought pursuant to the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. §  14706. (Compl. ¶  2; Pl.’s Resp. 1). Plaintiff Diane’s Trucking d/b/a Load One (“Load One”) is a Michigan corporation that had an agreement with Sovereign Sales, LLC (“Sovereign”), a wholesaler and distributor of “perfume products,”  to ship Sovereign’s good to locations throughout the United States. (Compl.¶  7).

 

 

(First Amended Complaint ¶  17) (“The goods to be transported were perfume products denoted as “toilet preps” on the bill of lading….”).

 

Plaintiff Load One and Defendant Holmes QST, Inc. (“Holmes”) enjoyed a mutually advantageous business relationship in which Plaintiff Load One contracted with Defendant Holmes on many occasions to carry cargo to specified locations. (Id. at ¶  8).

 

On or around September 17, 2003, Plaintiff Load One and Defendant Holmes entered into an agreement (“the Agreement”) wherein Defendant Holmes agreed to provide motor contract carriage to Plaintiff Load One under a continuing agreement designed to meet the transportation needs of Plaintiff Load One and its customers. (Id . at ¶  9). Pursuant to the Agreement, Defendant Holmes agreed to defend and hold Plaintiff Load One harmless from, and indemnify Plaintiff Load One for, any and all losses or damage to freight in the possession and control of Defendant Holmes. (Id. at ¶  10). Defendant Holmes also agreed to maintain primary cargo insurance of at least $100,000. (Id. at ¶  11). Defendant Holmes further agreed to assume full and complete responsibility and liability, regardless of fault, for any loss and damage to any goods while in possession or control of Defendant Holmes and/or its agents and/or representatives. (Id. at ¶  12).

 

Plaintiff Load One contends that Defendant Holmes and Defendant Robert E. Foster, d/b/a TAB Transportation (“Foster”) entered into a lease agreement wherein Foster would physically ship and carry the goods that Defendant Holmes had agreed to ship and/or carry for other carriers and/or brokers. (Id. at 13).

 

On or about October 1, 2004, Plaintiff Load One entered into the instant specific agreement with Defendant Holmes wherein Defendant Holmes agreed to pick up specified goods from Pak Rite in Ecorse, Michigan and transport them to Walgreen’s distribution center in Orlando, Florida, for the benefit of Sovereign (the “Sovereign agreement”). (Compl. ¶  14; Def.’s Br. 13). The Sovereign agreement was signed by cross-Defendant Foster as agent of Defendant Holmes. (Id. at ¶  15).

 

 

Foster was employed as the dispatcher for Defendant Holmes, and also personally owned four of the tractor trucks that hauled Defendant Holmes’ trailers. One of Foster’s tractors, driven by Foster’s employee, Brian Vickery, was hauling the Defendant Holmes trailer involved in the instant case.

 

On or about October 1, 2004, a bill of lading was issued which designated Plaintiff Load One as the carrier. Brian Vickery, a driver and agent of Foster, acknowledged receipt of the cargo as carrier. (Id. at ¶  16). The goods to be transported were denoted as “toilet preps-full value” on the bill of lading (“goods”).

 

On or about October 4, 2004, Foster’s tractor truck, driven by Brian Vickery, carrying Defendant Holmes’ tractor trailer, was broken into while parked at a truck stop in Jackson, Georgia. (Id . at ¶ ¶  18-19). A significant portion of the goods were stolen and never recovered. (Id. at 19). The value of the stolen goods was approximately $71,745.00. (Id. at 20).

 

Plaintiff Load One paid Defendant Holmes $2,300.00 representing payment in full for the shipment of the goods. Plaintiff Load One made a claim in writing to Defendant Holmes, asserting that Defendant Holmes was liable for the full value of the loss. (Compl.¶  22).

 

On or about May 17, 2005, Plaintiff Load One paid its customer Sovereign $71,745.00, the full amount of Sovereign’s loss, and Sovereign assigned to Plaintiff Load One all rights to pursue its claim of loss (the “Assignment”), including any claims that Sovereign may have had against Defendant Holmes.  (Id. at ¶ ¶  23-24).

 

Plaintiff Load One filed its Original Complaint on July 1, 2005. Defendant Holmes filed a cross-claim against Foster on August 8, 2005. Plaintiff Load One then filed an Amended Complaint on March 7, 2006. In the Amended Complaint, Plaintiff Load One alleges claims of negligence on the part of all Defendants, breach of contract against Defendant Holmes, express indemnification against Defendant Holmes, and indemnification pursuant to 49 U.S.C. §  14706 against all Defendants.

 

Defendant Holmes filed the instant Motion for Summary Judgment on April 22, 2006. Plaintiff Load One filed its response on May 24, 2006. Defendant Holmes filed its reply on June 14, 2006. Foster, who is employed by Holmes, did not file any pleadings. The Court heard oral argument in the case on July 12, 2006.

 

 

ANALYSIS:

 

A. Standard for Summary Judgment

 

 

Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may “at any time, move with or without supporting affidavits, for a summary judgment in the party’s favor as to all or any part thereof.” Fed.R.Civ.P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party’s case on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.

 

Id. at 323; Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987).

 

A fact is “material” for purposes of a motion for summary judgment where proof of that fact “would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.”  Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (quoting Black’s Law Dictionary 881 (6th ed.1979)) (citations omitted). A dispute over a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material fact for trial. Id.; Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir.1993). In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

 

If this burden is met by the moving party, the non-moving party’s failure to make a showing that is “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial” will mandate the entry of summary judgment.  Celotex, 477 U.S. at 322-23. The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires that non-moving party to introduce “evidence of evidentiary quality” demonstrating the existence of a material fact. Bailey v. Floyd Ct.y Bd. of Educ., 106 F.3d 135, 145 (6th Cir.1997); see also Anderson, 477 U.S. at 252 (holding that the non-moving party must produce more than a scintilla of evidence to survive summary judgment).

 

 

B. Plaintiff’s Claims

 

Pursuant to the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. §  11707, which covers claims against carriers for damages resulting from the interstate transport of goods, “a carrier transporting property [must] issue a bill of lading to the shipper, and [is] liable to the one entitled to recover under the bill of lading for loss of or injury to the property.” Am. Rd. Serv. Co. v. Conrail, 348 F.3d 565, 568 (6th Cir.2003).

 

The Supreme Court has held that the Carmack Amendment:

… codifies the common-law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by (a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.

 

Mo. Pacific R.R. v. Elmore & Stahl, 377 U.S. 134, 137 (1964). The burden of proof has been set forth as follows:[I]n an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.

 

Plough, Inc. v. Mason & Dixon Lines, 630 F.2d 468, 470 (6th Cir.1980) (quoting Elmore & Stahl, 377 U.S. at 137). Once the shipper makes out a prima facie case, the burden then shifts to the carrier to show that (1) it was not negligent and (2) the sole cause of the injury was one of the five exceptions listed in Elmore & Stahl, supra. Plough, Inc., 630 F.2d at 470-71 (citing Am. Hoist & Derrick Co. v. Chicago, Milwaukee, St. Paul & Pacific R. R., 414 F.2d 68, 72 (6th Cir.1969).

 

Defendant Holmes has not disputed in its present motion that the elements of a prima facie case have been met. Defendant Holmes denies that it qualifies as a common carrier, and states that Plaintiff had a duty as a common carrier to pay the loss claim of Sovereign Sales. Defendant Holmes states that it can only be held liable if Plaintiff proves that it is negligent.

 

Through the passage of the Interstate Commerce Commission Termination Act of 1995, Congress effectively abolished the distinction between being licensed as a common carrier or a contract carrier, choosing instead to include “only one class of motor transport carrier-the motor carrier….” M. Fortunoff of Westbury Corp. v. Peerless Ins. Co., 432 F.3d 127, 136 (2d Cir.2005); see generally 49 U.S.C. §  13102. Thus, the Court finds that Defendant Holmes’ argument that Plaintiff must prove that Defendant Holmes was negligent because of its status as a “contract carrier” is without merit.

 

Defendant Holmes does not move for summary judgment on the merits of the underlying claim. Rather, Defendant Holmes contends that Plaintiff Load One’s claims are barred because Plaintiff intentionally misdescribed the cargo to be shipped, and, therefore, Defendant cannot be found liable for the resultant damages.

 

The bill of lading at issue was prepared by Sovereign. Sovereign’s vice president, Michael Klimczak, testified that the classification of “toilet preps” indicated on the bill of lading is an industry standard in the fragrance industry. (Klimczak Dep. 43, 47). Klimczak stated that part of the reason for doing so was for security purposes and to avoid theft. (Id. at 47). Significantly, Klimczak further averred that the products in issue were not perfumes, but were “colognes, aftershave, eau de toilettes,” which he indicated are “watered down versions of perfumery product.” (Id. at 46). “[W]e do not ship pure perfumes. In this industry it’s a different, higher value that you would run at a perfumery product, yes.” (Klimczak Dep. 64-65, Pl.’s Resp. Ex. 7). In addition, Klimczak stated that he identified the goods as “toilet preps” because there was an assortment of different goods in the cargo. (Id. at 57). He added: “It’s colognes, aftershaves, eau de toilettes. They are not perfumes. They are watered down versions of perfumery product.” (Id. at 65).

 

Defendant Holmes disputes this explanation for the characterization, and argues that any intentional misdescription serves as a bar to Plaintiff’s recovery of damages. Defendant Holmes states that 49 U.S.C. §  80116 provides criminal penalties for intentionally misdescribing cargo. Title 49 U.S.C. §  80016 is a criminal statute, and Defendant Holmes has provided no authority for utilizing this particular criminal statute as a bar to filing a civil suit. Further, the statute imposes criminal penalties only upon a showing of a specific intent to defraud. In this civil action, this Court does not find specific criminal intent to defraud Holmes based on the cargo label “toilet preps full value.” Thus, the Court finds that 49 U.S.C. §  80016 does not support Defendant Holmes’ contention that Plaintiff’s claim is barred.

 

Here, Defendant Holmes contention is that it would not have accepted the cargo for shipment had the value been known because the insurance policy coverage limit was $100,000.00, and the cargo in question was valued at over $140,000.00. Defendant Holmes further avers that Plaintiff and Sovereign’s failure to disclose the exact nature and value of the cargo to Defendant Holmes establishes a situation where there is no valid bailment of goods, and precludes a finding of liability on the part of Defendant Holmes. The Court notes that Defendant Holmes never requested an explanation of either the exact nature of the goods, or the specific value of the cargo.

 

Plaintiff responds that it had no duty to disclose the full value of the cargo. In addition, Plaintiff states that it has capped requested damages below the policy limit of $100,000.00. Foster’s deposition testimony indicates that Defendant Holmes did not charge based upon the contents of the goods, but instead that the amount to be charged was based upon the distance traveled. Foster also testified that normally he does not know the contents of the cargo to be shipped, unless such cargo involves hazardous materials for which special vehicle placards and licensing might be required. (Foster Dep. 29-30, 35, 54, Pl.’s Resp. Ex. 1). Foster also testified that he does not know if he has ever previously shipped merchandise worth more than $100,000.00 because he does not inquire as to the contents of the cargo to be shipped:

Q: How do you know that you are not hauling something greater than what your insurance coverage would be if you don’t ask what the goods are?

A: I don’t, I guess.

 

(Id. at 55). Foster testified that he works for Defendant Holmes as a dispatcher, and that Defendant Holmes furnishes the insurance for the cargo and the trailer. (Foster Dep. 16, 22).

 

Taking into account the above case law and the evidence in the record, the Court finds that summary judgment is inappropriate on the question of whether Plaintiff’s claim is barred by its alleged misdescription of the cargo. Defendant has failed to show that Plaintiff or Sovereign had a duty to provide any more detail on the bill of lading other than what was provided by Sovereign, and failed to show that the description “toilet preps-full value” was an inaccurate manner of describing the cargo. Defendant Holmes’ argues that Plaintiff’s alleged intentional misdescription violates 49 C.F.R. 1035.2(5) (the correct cite is 49 C.F.R. 1035, Appendix B, Section 5) which states:

No carrier hereunder will carry or be liable in any way for any documents, specie, or for any articles of extraordinary value not specifically rated in the published classifications or tariffs unless a special agreement to do so and a stipulated value of the articles are indorsed hereon.

 

49 C.F.R. 1035, App. B, Sec. 5 (emphasis added). 49 C.F.R. 1035 deals with requirements for bills of lading. The Court finds that this regulation does not serve as a bar to Plaintiff Load One’s claim because Defendant Holmes is not being charged with liability for articles of extraordinary value. Plaintiff Load One has requested damages of approximately $71,745, which falls well within Defendant Holmes’ insurance policy limit of $100,000. If Defendant Holmes’s insurance company would have paid up to $100,000 for the goods, then the Court cannot find as a matter of law that $71,745 for the goods constitutes liability for articles of extraordinary value. Further, the articles were not perfume which carries a higher value than the articles contained in the shipment. The toilettes contained in the shipment were not of extraordinary value, taking the evidence in the light most favorable to the non-moving party.

 

Moreover, although Foster stated in his deposition that he would not ship goods valued in excess of Defendant Holmes’ insurance policy, Foster also testified that not only does he usually not have any knowledge of what he is shipping, but that he does not charge a fee based on the value of the goods being shipped. Indeed, William O’Neil, president of Defendant Holmes, testified that the charge for moving goods is based on “the distance that the load is being transported.” (O’Neil Dep. 42-43). Plaintiff added the term “full value” on the bill of lading. Charles Desira, operations manager of Plaintiff Load One, testified that he told Foster that it was a valued shipment that the shipper would seal:

These are my instructions to tell [Foster] the carrier at Holmes QST…. They would seal the trailer and the consignee will break the seal at destination….

…

Yes, I indicated it was a valued shipment indicating that the shipper is going to seal the trailer and I informed [Foster] that the consignee will break the seal.

 

(Desira Dep. 11).

 

Michael Klimczak, Vice President of Sovereign Sales, the shipper, testified as to the meaning of the phrase “toilet preps-full value” on the bill of lading:

Full value is what we put on all of our fragrance shipments to indicate the value we are shipping that shipment at to the carrier.

….

We do not put the monetary value on there because of security reasons, because it’s a high value shipment.

 

(Klimczak Dep. 12). The bill of lading did not state the value of the goods. As noted before, Defendant Holmes has acknowledged that Plaintiff would not have had to pay higher shipping costs for more valuable cargo.

 

Plaintiff provided the affidavit of George Beaulieu, a trucking expert with over 35 years of experience in the trucking industry, who noted that the truck driver, Brian Vickery, admitted in his statement to the insurance adjusters that he believed he was carrying “fragrance.” (Beaulieu Decl. ¶  11, Pl.’s Resp. Ex. 12). In addition, Plaintiff maintains that it is only requesting damages less than $100,000.00. These facts lend credence to Plaintiff’s argument that it was not trying to fraudulently conceal the value of the goods. Consequently, even if the cargo did contain an inaccurate description, Defendant Holmes has not met its burden of proving that the alleged misdescription caused or contributed to the eventual loss.

 

 

There also appears to be a genuine issue of material fact as to whether the instant description would constitute a misdescription. Beaulieu also stated in his declaration that more than one classification may have been proper for the cargo involved. (Id. at ¶  17).

 

Further, Plaintiff Load One’s Vice President of Risk Management, Robert Girard, testified that he believed that “toilet preps” was an accurate freight classification because the shipment constituted a “lesser grade of [ ] designer fragrances.” (Girard Dep. 76, Def .’s Mot. Ex. D). Girard also indicated that he did not believe Plaintiff Load One had withheld information from Defendant Holmes and Foster because “they have hauled loads similar to this prior to this.” (Id. at 74).

 

Significantly, the National Motor Freight Classification 100-AE for “toilet preparations,” # 59420, references related numbers including # 59425, which includes “cosmetics not more specifically described elsewhere in the classification”:

The term ‘Cosmetics’ embraces articles intended to be rubbed, poured, sprinkled or sprayed on, introduced into or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance.

 

(Klimczak Dep. Ex. 4, 2). Taking the evidence in the light most favorable to the non-moving party, this description appears to apply to the instant shipment. Vincent Killewald, Chief Financial Officer of Sovereign, described the product as eau de toilette:It’s an eau de toilette, which is a, it’s less intense in a fragrance. It has the same volatile oils cut with much more alcohol so it is much less costly than a perfume.

 

(Killewald Dep. 8). He later affirmed the description of one of the major parts of the lost load: “Curve men’s mixed gift product”:Q: [T]hat’s involving a 2.5 ounce spray, 2.5 ounce soother, deodorant and 2.5 ounce body wash….

A: Correct.

 

(Id. at 18).

 

Taking the above evidence in the light most favorable to the non-moving party, the Court denies Defendant Holmes’ Motion for Summary Judgment on this issue.

 

 

C. Liability of Defendant Holmes for Foster’s Actions

 

Next, Defendant Holmes contends that the Court should find that Foster is solely liable for the theft of the cargo at issue as a result of the negligence of Foster and his employees and agents as a matter of law. Cross-Defendant Foster, an employee of Defendant Holmes, did not file a response to the motion.

 

The Amended Complaint contains several allegations against Defendant Holmes, including negligence, breach of contract, express indemnification, and indemnification pursuant to 49 U.S.C. §  14706. Defendant Holmes’ motion appears to pertain only to the negligence count, and, therefore, the Court will only address summary judgment on this claim.

 

Defendant Holmes argues that it cannot be held responsible for the actions of Foster and his employees and agents. It states that Plaintiff cannot establish liability based upon any exception to the general rule that a person who hires an independent contractor is not liable for damages and injuries that the independent contractor negligently causes. Defendant Holmes further contends that it did not assume any of the employer-related duties which existed between Foster and its driver, Brian Vickery.

 

Prior to the passage of the Interstate Common Carrier Act in 1956, the Michigan Supreme Court addressed a similar issue in Hazard v. Great Central Transport Corp., 270 Mich. 60 (Mich.1935). In Hazard, the defendant transport company was engaged in transporting merchandise and freight for hire under contracts with shippers. Id. at 62. The transport company hired two drivers and their truck to carry freight to ship cargo interstate. Id. During interstate transport, one of the drivers collided with an automobile, which then caused damage to a third vehicle. Id. On appeal of the judgments entered against the transport company, the defendant contended that the driver was an independent contractor, and that the transport company was not liable for the driver’s negligence. Id. at 63. The Michigan Supreme Court affirmed the judgments, finding that the transport company was liable pursuant to the doctrine of respondeat superior and the contract between the driver and the transport company did not affect that liability. Id. at 71. In rejecting the transport company’s independent contractor theory, the supreme court stated that “[t]he factual relations between the company and [the driver] control, regardless of the provisions in the so-called contract.” Id. at 69.

 

Importantly, Foster indicated that he leased vehicles to Defendant Holmes, and that he never leased to more than one company at a time. (Id. at 23-24). He also indicated that “anything [he moves] has to be moved through Holmes QST because they have the licensing.” (Id. at 28). A copy of the lease agreement, which appears to be on file with the Michigan Department of Consumer & Industry Services, is attached to Foster’s deposition. (See Foster Dep. Ex. 2, Def.’s Mot. Ex. E).

 

In 1956, the Interstate Common Carrier Act was amended “to require motor carriers to be fully responsible for the operation of vehicles certified to them in order to protect the public from certain abusive conduct which had resulted from the trucking industry’s frequent use of leased or borrowed vehicles.” Ryder Truck Rental Co. v. UTF Carriers, Inc., 719 F.Supp. 455, 457 (W.D .Va.1989).

 

Pursuant to 49 U.S.C. §  14102(a)(4), an authorized motor carrier that leases motor vehicles to transport goods must:

(4) have control of and be responsible for operating those motor vehicles in compliance with requirements prescribed by the Secretary of Transportation on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carriers.

 

In denying a motion for summary judgment by a transport company, a 2003 district court within the Sixth Circuit has noted that many courts have found vicarious liability where there is a lease relationship between the carrier and driver:In this case, Mann and Epperson signed a written lease that contained provisions that complied with the federal regulations. (Lease Agreement, p. 2, sections (d) and (k).) Mann acknowledges that it did, in fact, agree to these federally mandated terms in the written lease that he signed. (Aff. of William C. Mann, Inc. P 2; Dep. of William C. Mann, Inc. pp. 13-25.) Mann, nevertheless, maintains that it may not be held vicariously liable for Epperson’s actions because Epperson operated as an independent contractor. Mann points to several undisputed facts to support this contention, including Epperson’s compensation, his ability to determine his own hours and haul for anyone that he wished, his furnishing his own tools and equipment, and Mann’s lack of authority to control the course, method, manner or conduct of Epperson’s work. (See Aff. Mann; Dep. Mann pp. 26-27; Lease Agreement.)

Although the Sixth Circuit has not directly addressed this question, most courts have concluded as a matter of federal law that the regulatory scheme for carrier-lessees imposes an irrebuttable statutory employment relationship between the driver and the carrier-lessee. Gilstorff v. Top Line Express, No. 96-3081, 1997 U.S.App. LEXIS 780 at *7, n. 6 (6th Cir. Jan. 14, 1997); see e.g., Baker v. Roberts Express, Inc., 800 F.Supp. 1571 (S.D.Ohio 1992) (finding that a statutory employment relationship exists because the applicable federal statutes and regulations “create an irrebuttable presumption of an employment relationship between a driver of a leased vehicle furnished by a contractor-lessor and a carrier-lessee.”); Laux v. Juillerat, 680 F.Supp. 1131 (S.D.Ohio 1987), aff ‘d, 860 F.2d 1079 (6th Cir.1988) (holding that federal regulations require a carrier-lessee to assume legal control of the leased vehicle and driver, and should be held vicariously liable for the negligence of the driver and the resulting damages); see also Judy v. Tri-State Motor Transit Co., 844 F.2d 1496, 1501 (11th Cir.1988) (holding that “federal law creates a statutory employment relationship between interstate carriers and the drivers of the trucks leased to them”); Planet Ins. Co. v. Transport Indemnity Co., 823 F.2d 285, 288 (9th Cir.1987) (noting that “the special interstate character of the authorized carrier industry underscores the need to refer to the federal scheme to determine when mandatory coverage comes into effect”); Price v. Westmoreland, 727 F.2d 494, 497 (5th Cir.1984) (holding that “[a carrier-lessee is] vicariously liable as a matter of law for [lessor’s] negligence and the traditional common law doctrine of master-servant relationships and respondeat superior does not apply.”);  Proctor v. Colonial Refrigerated Transp., Inc., 494 F .2d 89 (4th Cir.1974) (stating that “the statute and regulatory pattern clearly eliminates the independent contractor concept from such lease arrangements and casts upon [the carrier-lessee] full responsibility for the negligence of [the driver] of the leased equipment.”); Ryder Truck Rental Co., Inc. v. UTF Carriers, Inc ., 719 F.Supp. 455, 458 (W.D.Va.1989) (holding that “federal law requires a driver furnished by a lessor-contractor to be considered a statutory employee of the lessee-carrier, thereby preempting traditional common law doctrines of master-servant relationships and respondeat superior when the driver injures a member of the public while the lease is in effect.”).

In dictum, the Sixth Circuit has stated that “undoubtedly, 49 U . S.C. §  11107(a)(4) and 49 C.F.R. §  1057.12(c) render lessee carriers vicariously liable, notwithstanding traditional principles of agency, for injuries sustained by third parties resulting from the negligence of the drivers of leased vehicles.” Johnson v. S.O.S. Transport, Inc., 926 F.2d 516, 521 (6th Cir.1991) (emphasis added). Moreover, in Gilstorff, the Sixth Circuit seems to have adopted the majority view that a carrier-lessee is the statutory employer of a driver. See Gilstorff, 1997 U.S.App. LEXIS 780 at *7, n. 6. This court finds that Mann, as a carrier-lessee, may be considered the statutory employer of Epperson and held vicariously liable for any of Plaintiff’s injuries attributable to Epperson’s negligence. Accordingly, Mann’s motion for summary judgment as a matter of law with respect to vicarious liability is DENIED.

 

Holliday v. Epperson, No. 1:02-cv-1030-T, 2003 U.S. Dist. LEXIS 19986, 7-12 (W.D.Tenn. Aug. 26, 2003) (unpublished). Thus, because Foster leased trucks to Defendant Holmes, pursuant to federal law, Defendant Holmes is estopped from denying responsibility for the loss that occurred.

 

The Court finds that even if there was no lease agreement covered by federal law, Defendant Holmes still cannot establish that Foster operated as an independent contractor. The Court notes that on the Statement of Agreement between Plaintiff Load One and Defendant Holmes, which governs the terms of the dispute at hand, Robert Foster’s signature appears as the authorized signature under the Defendant Holmes carrier designation. (See Vickery Dep. Ex. 3, Def.’s Mot. Ex. G). Foster affirmed in his deposition that it was his signature on the agreement. (Foster Dep. 19, Def.’s Mot. Ex. E). In addition, Defendant Holmes attempts to argue that Foster is an independent contractor, but Foster testified in his deposition that he was employed as a dispatcher for Defendant Holmes. (Id. at 16). Foster testified that whether a load will be moved by Defendant Holmes or whether it will be moved by Foster “depends on what trucks are available.” (Id. at 17). According to Foster, Plaintiff Load One has contacted Foster, as Holmes’ dispatcher, directly in the past to arrange shipments. (Foster Dep. 17, Def.’s Mot. Ex. E). The Court also notes Foster’s familiarity with Defendant Holmes’ business practices, and his consistent use of the term “we” when referring to facts related to the terms of the contract signed by Plaintiff Load One and Defendant Holmes:

Q: And then after that it says specifically that it, referring I assume to the carrier, maintains appropriate insurance. What does that mean to you? What is the, what does the appropriate insurance mean, if you know?

A: Whenever we do business with a company we fax over our insurance papers so they know exactly how much insurance we have which we carry $100,000 worth of insurance for that particular thing and I assume they know what insurance we have because I’ve already sent them the insurance papers. So I would just have to assume that if they are going to give us a load, that the load would fall within the parameters of that insurance.

….

Q: … Do you know, in fact, did Load One [ ] specifically know that Holmes QST Incorporated had a maximum insurance coverage of $100,000 when they entered into this agreement?

A: When we enter into any agreement we fax that over, that’s just part of the packet that they get….

 

(Foster Dep. 20-21, 45, Def.’s Mot. Ex. E). This evidence only further supports the Court’s finding that Foster did not operate as an independent contractor. Further, Foster’s testimony indicates that Plaintiff Load One was aware of the $100,000.00 insurance limit, and this case does not involve a claim over $100,000.00.

 

Based upon federal law, case law, and the findings in the record, the Court concludes that Defendant Holmes is liable for any negligence on the part of Foster, and denies summary judgment to Defendant Holmes on its argument that cross-Defendant Robert Foster is solely liable for damages suffered by Plaintiff Load One. The instant contract was between Plaintiff and Holmes.

 

 

CONCLUSION:

 

For the foregoing reasons, the Court DENIES Defendant Holmes’ Motions for Summary Judgment.