United States Court of Appeals,

Fourth Circuit.

CANAL INSURANCE COMPANY, Plaintiff-Appellee,

v.

James M. BARKER, III, d/b/a Barker & Son; Denise A. Penn; Houstonia Clymer, Defendants-Appellants,

and

Justin J. Colvard, Defendant.

No. 08-1301.

 

Argued: Oct. 29, 2009.

Decided: Dec. 31, 2009.

 

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.PER CURIAM:

 

A truck owned by James M. Barker III, d/b/a Barker & Son (“Barker”), and driven by Justin J. Colvard (“Colvard”), collided with a car, which was driven by Denise A. Penn (“Penn”) and carrying Houstonia Clymer (“Clymer”) (collectively, “Appellants”). Penn and Clymer were injured in the collision. Canal Insurance Company (“Canal” or “Appellee”) brought suit seeking a declaratory judgment as to the policy limits of an insurance policy that Canal issued to Barker. The district court rejected Appellants’ contention that Virginia Code § 46.2-2143 or federal regulations would operate to increase the policy’s limit to $750,000 through its “Out of State Insurance” provision, and instead granted Canal’s Motion for Judgment on the Pleadings that the policy was limited to the face amount of $100,000 listed on its declaration page. We agree and affirm the judgment.

 

I.

 

On August 2, 2005, the tractor-trailer driven by Colvard and owned by Barker was traveling southbound on Interstate 85 in Brunswick County, Virginia, when it was involved in the collision with the car carrying Penn and Clymer. Earlier that day, Colvard made a delivery to a location in Petersburg, Virginia, and was “deadheading” (traveling with an empty trailer) at the time of the accident. The following day, Colvard was expected to pick up property in Salisbury, North Carolina and transport it to Elberton, Georgia. Barker and Colvard were both domiciled in Georgia, and Penn and Clymer were both domiciled in New York. Canal is a corporation with its principal place of business in, and organized under the laws of, South Carolina.

 

Barker had previously purchased an insurance policy from Canal, Basic Automobile Policy No. 447668 (“the Policy”), covering the period between September 2004 and September 2005. The Policy provides on the declaration page that Barker was insured to a $100,000 limit of liability, and Canal offered to pay that amount to satisfy Penn and Clymer’s claims arising out of the accident. At issue is the meaning and effect that the Policy’s Out of State Insurance provision has on the Policy’s liability limit, and specifically whether this provision operates to increase the limit to $750,000, the amount of insurance that Appellants allege is required by Virginia law.

 

 The “Out of State Insurance” provision states in pertinent part:

 

If, under the provisions of the motor vehicle financial responsibility law or the motor vehicle compulsory insurance law or any similar law of any state or province, a non-resident is required to maintain insurance with respect to the operation or use of a motor vehicle in such state or province and such insurance requirements are greater than the insurance provided by the policy, the limits of the company’s liability and kinds of coverage afforded by the policy shall be as set forth in such law, in lieu of the insurance otherwise provided by the policy, but only to the extent required by such law and only with respect to the operation or use of a motor vehicle in such state or province….

 

Canal brought suit, seeking a declaratory judgment that the Policy had a liability limit of the face value of $100,000. Penn and Clymer counterclaimed that Canal owed a duty to indemnify Barker and Colvard at least $750,000 to cover claims arising from the accident. Penn and Clymer argued, inter alia, that Virginia Code § 46.2-2143(B) required that “[a]ll motorcarriers shall keep in force at all times insurance … in an amount required by this section,” and that under subsection (C), that amount of “minimum insurance for motorcarriers operating in interstate commerce shall equal the minimum required by federal law, rule, or regulation.” Viewed with reference to federal regulations 49 C.F.R. §§ 387.7 and 387.9, which set the minimum level of financial responsibility for interstate motorcarriers at $750,000, Penn and Clymer argued that both Virginia law, and federal regulations, operated to increase the Policy’s liability limit to $750,000. Canal contended that a holistic reading of the statutory scheme in Virginia regulating motorcarriers clearly establishes that Virginia Code § 46.2-2143 only applies to motorcarriers who are registering in Virginia.

 

The district court found Canal’s interpretation of the statutory scheme in Virginia regulating motorcarriers to be more persuasive. J.A. 110. Particularly, the court found this interpretation to be supported by Virginia Code § 46.2-2102(2), which exempts “from this chapter … [t]ransportation of property between any point in this Commonwealth and any point outside this Commonwealth or between any points wholly within the limits of any city or town in this Commonwealth.” Therefore, the court held that § 46.2-2102(2) exempts the application of Chapter 21 (which includes § 46.2-2143) to motorcarriers like Barker who engage in interstate commerce. J.A. 110. The court also found that § 46.2-2143, when read in its entirety, sets forth the requirements for a motorcarrier to register in Virginia. J.A. 110-11. The district court was not persuaded by the argument that federal regulations operated, through the Out of State Insurance provision, to increase the Policy’s liability limit to $750,000. J.A. 112. Even though Barker was required by federal regulations to show a financial responsibility of $750,000, the court held that Barker was not required to carry insurance and could opt to meet the financial responsibility through one of several ways. J.A. 113-14.

 

II.

 

We review de novo a district court’s decision to grant judgment on the pleadings. See Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir.2002). In reviewing an award of judgment on the pleadings, we assume the facts alleged in the relevant pleadings to be true, and we draw all reasonable inferences therefrom. Volvo Constr. Equip. N. Am. v. CLM Equip. Co., Inc., 386 F.3d 581, 591 (4th Cir.2004) (citing Elkins Radio, 278 F.3d at 406).

 

The appellants have raised several issues upon appeal, and we address each in turn.

 

A.

 

The principal question raised on appeal is whether the district court erred in its holding that Virginia Code § 46.2-2143 only served to establish financial responsibility requirements for motorcarriers who are registered in the state of Virginia, or whether, as Appellants contend, § 46.2-2143 also applies to interstate motorcarriers such as Barker. We hold that the district court did not err in its interpretation of the Virginia statute.

 

The applicable rules of statutory interpretation, to be applied in the interpretation of a Virginia statute, are not in dispute. Where the language of a statute is clear and unambiguous, “a court may look only to the words of the statute to determine its meaning.” Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 339, 497 S.E.2d 335, 337 (1998) (citing Harrison & Bates, Inc. v. Featherstone Assocs., 253 Va. 364, 368, 484 S.E.2d 883, 885 (1997)). Furthermore, it is a “settled principle of statutory construction that every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary.” Id. at 340-41 (citing Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 405, 468 S.E.2d 905, 909 (1996)). “Whenever possible, however, it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal. ‘[A] statute is not to be construed by singling out a particular phrase.’ “ Virginia Elec. & Power Co. v. Bd. of County Supervisors of Prince William County, 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983) (quoting VEPCO v. Citizens, 222 Va. 866, 869, 284 S.E.2d 613, 615 (1981)). “Consequently, courts apply the plain language of a statute unless … applying the plain language would lead to an absurd result.”   Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006).

 

 Additionally, as the parties have observed, Canal issued the insurance policy to Barker in Georgia; therefore, the interpretation of the policy is governed by Georgia law. See Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir.2005).

 

The plain terms of Virginia Code § 46.2-2143, when read in their entirety, and even without reference to other sections of the Code, make clear that it is a registration statute. Virginia Code § 46.2-2143(B) provides that “[a]ll motorcarriers shall keep in force at all times insurance, a bond or bonds, in an amount required by this section.” Furthermore, Virginia Code § 46.2-2143(C) provides that “[t]he minimum insurance for motorcarriers operating in interstate commerce shall equal the minimum required by federal law, rule, or regulation.” The Appellants conclude that these two subsections of § 46.2-2143, in conjunction with certain federal regulations, operate as an insurance requirement for all motorcarriers and not only those registering in Virginia.

 

 

However, a reasonable interpretation of Virginia Code § 46.2-2143 must try to reconcile subsection (A) with subsections (B) and (C), in an attempt “to interpret the several parts of a statute as a consistent and harmonious whole.” Virginia Elec. & Power Co., 226 Va. at 388. Subsection (A) provides that “[n]o certificate of public convenience and necessity, permit, identification marker, registration card, or license plate shall be issued by the Department to any vehicle operated by a motorcarrier until the motorcarrier certifies to the Department that the vehicle is covered” under one of four different listed methods of coverage. In addition, subsection (A) provides that motorcarriers who have filed proof of financial responsibility “in accordance with the single state registration system authorized by 49 U.S.C. § 14504 or the unified carrier registration system authorized by 49 U.S.C. § 14504a are deemed to have fulfilled the requirements of this article for insurance purposes,” so long as the motorcarrier has on board a federally-authorized receipt of insurance. Only after § 46.2-2143 explains the prerequisites for registering a motorcarrier in Virginia with the Department of Motor Vehicles does the statute reach the issues of the types of financial responsibility, when financial responsibility is required, and in what amount.

 

Importantly, it is not just subsection (A) that couches motorcarrier insurance and financial responsibility obligations in the context of registration. Virginia Code § 46.2-2143(C) also provides as follows:

 

Any motorcarrier that meets the minimum federal financial responsibility requirements and also operates in intrastate commerce may submit, in lieu of a separate filing for its intrastate operation, proof of the minimum federal limits, provided that (i) both interstate and intrastate operations are insured, (ii) the public liability filed is at least $750,000, and (iii) any cargo insurance requirements of this section have been met.

 

This language, in light of the rest of the statute, is reasonably read as an alternative means of filing proof of financial responsibility with the Virginia Department of Motor Vehicles prior to its issuance of motorcarrier registration for carriers operating on an interstate and intrastate basis.

 

A clear indicator that Virginia Code § 46.2-2143 is a registration statute, although one that did not form the basis of the district court’s opinion, is the title of that statutory section: “Surety bonds, insurance, letter of credit or securities required prior to issuance of registration; amounts.” (emphasis added). The Appellants place emphasis upon the article in which § 46.2-2143 is situated (“Insurance Requirements”) as contrasted with the chapter in which its statutory predecessor was situated (“Titling and Registration of Motor Vehicles”). Appellants’ Br. at 10-12. However, Appellants ignore the title of the statutory section, which is the more specific statutory interpretive marker. It is clear that “[t]he purpose of a title is to state the general subject covered by the act. While not a part of the act itself, it may be read to ascertain the act’s purpose.” Jakabcin v. Town of Front Royal, 271 Va. 660, 667 n. 3, 628 S.E.2d 319, 323 (2006) (citing authorities). In this case, as the section title indicates, the general subject of Virginia Code § 46.2-2143 concerns the financial responsibility requirements for motorcarriers prior to the issuance of registration from the Virginia Department of Motor Vehicles.

 

Looking outside the provisions of § 46.2-2143, we agree with the district court that a “comprehensive reading of the pertinent sections of Chapter 21 supports Canal’s interpretation of the § 46.2-2143.” J.A. 110. Most applicable is § 46.2-2101(2), which provides that “[t]he following are exempt from this chapter … [t]ransportation of property between any point in this Commonwealth and any point outside this Commonwealth or between any points wholly within the limits of any city or town in this Commonwealth.” In connection with § 46.2-2102, which states that “[n]o motorcarrier shall operate any motor vehicle for the transportation of property for compensation on any highway in this Commonwealth on an intrastate basis except in accordance with the provisions of this chapter,” this statutory scheme clearly regulates motorcarriers operating on an intrastate basis, but not those operating on an interstate basis or operating entirely within city or town limits.

 

We hold that Virginia Code § 46.2-2143 is a registration statute that sets forth the financial responsibility and insurance requirements before the Department of Motor Vehicles can issue registration for a vehicle operated by a motorcarrier. As Barker was under no obligation to register the tractor-trailer involved in this accident in Virginia, and instead had registered and principally garaged it in another state, § 46.2-2143 does not apply to Barker. Therefore, § 46.2-2143 does not require the liability limit of the Policy, through its Out of State Insurance provision, to be increased above the $100,000 face value of the Policy.

 

B.

 

A separate question, although one related to the interpretation of Virginia Code § 46.2-2143, concerns the effect and application of the § 46.2-2101(2) exemption to the present circumstances. The exemption under § 46.2-2101(2) from “this chapter” means an exemption from Chapter 21 (“Regulation of Property Carriers”), which includes § 46.2-2143.

 

The Appellants contend that “Barker did not even fall within section 2101’s literal exemption…. If Barker’s truck was empty, it did not fall within section 2101 when the accident happened, as the truck had finished transporting property into Virginia and would not transport property again until after it left the state.” Appellants’ Reply Br. at 6-7. We disagree that the term “transportation of property,” as found in § 46.2-2101(2), would have such a narrow definition that it would not cover Barker’s carrying property into Virginia from out of state, and then “deadheading” (traveling with an empty trailer) back out of state. See Black’s Law Dictionary 1638 (9th ed.2009) (defining “transportation” as the “movement of goods or persons from one place to another by a carrier”). A common sense interpretation of the exemption for “transportation of property between any point in this Commonwealth and any point outside this Commonwealth” must include both the trip into the Commonwealth to unload property, and the return trip with an empty truck. Under the present facts, where Barker’s truck had delivered property to Petersburg, Virginia earlier that day, and was “deadheading” back to North Carolina for a scheduled pickup, Barker falls within the § 46.2-2101(2) exemption from Chapter 21.

 

Appellants further argue that § 46.2-2143 and § 46.2-2101(2) are, in effect, in conflict concerning whether Virginia law specifically requires “motorcarriers operating in interstate commerce” to keep “minimum insurance” as set forth in Section 2143. Appellants’ Br. at 16. Therefore, they conclude, “the specific should control the general,” and “Section 2101 should not apply to exempt interstate motorcarriers from section 2143.” Id. However, “[i]n a situation where one statute speaks to a subject generally and another deals with an element of that subject specifically, the statutes will be harmonized, if possible, and if they conflict, the more specific statute prevails.”   Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127, 129 (2005) (internal quotation marks omitted)(emphasis added).

 

We hold that the most natural reading of the applicable statutes makes clear that they form a harmonious statutory scheme. We held above that Virginia Code § 46.2-2143 is a registration statute that did not apply to Barker, and therefore there is no conflict between this statute and § 46.2-2101(2). Virginia’s statutory scheme makes doubly clear through its exemption in § 46.2-2101(2) that Barker was not required to carry insurance in the amount of $750,000.

 

C.

 

The Appellants challenge the district court’s holding that the federal financial responsibility regulations, standing alone, do not require Barker to maintain $750,000 in insurance. J.A. 112-15. The applicable federal regulations provide that the motorcarrier’s financial responsibility requirement can be proven by obtaining: (1) liability insurance which includes a MCS-90 endorsement; (2) a Form MCS-82 surety bond; or (3) written authorization to self-insure from the Federal MotorCarrier Safety Administration. See49 C.F.R. § 387.7(d). The federal financial responsibility regulations cannot be said to require a motorcarrier to maintain a minimum of $750,000 in insurance, where a motorcarrier opts not to use insurance to fulfill such requirements. It is undisputed that Barker was not using the Policy to fulfill the federal financial responsibility requirements, as the Policy does not contain a MCS-90 endorsement. We hold then that the district court did not err in its finding that federal financial responsibility regulations did not require Barker to maintain $750,000 in insurance. Furthermore, the language of the Out of State Insurance provision is not susceptible to an interpretation whereby federal law, on its own, would trigger its application.

 

D.

 

Finally, Appellants argue that, because Penn and Clymer never admitted to the accuracy of the policy attached to Canal’s complaint when it brought suit, the district court could not enter a judgment on the pleadings.

 

Both parties to the Policy, Barker and Canal, agree that the copy attached to the complaint is a true and complete copy of the Policy. See J.A. 13, 81. However, Penn and Clymer suggest that the policy copy attached to the complaint is not complete and accurate, on the basis of two signed endorsements produced by First Southern Insurance Agency (apparently acting as insurance agent to Barker) that were not included therein. See J.A. 101-02.

 

Had Appellants’ allegations or their accompanying documents contained some basis for belief that the Policy attached to the complaint was not a complete and accurate copy of the Policy that was in effect at the time of the accident, this argument might have gained some traction. One endorsement cited by Appellants has an “Endorsement Effective Date” of September 9, 2005, and an “Issue Date” of September 21, 2005. J.A. 101. The other has an “Endorsement Effective Date” of September 3, 2005, and an “Issue Date” of September 19, 2005. J.A. 102. The two endorsements concern the schedule of insured equipment, and both endorsements also clearly provide “ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.” J.A. 101-02 (capitalization in original). As the Appellants provided no more than a basis for belief that subsequent changes were made to the Policy after the date of the accident on August 2, 2005, and there being no basis to doubt the true and complete nature of the policy copy attached to Canal’s complaint as of the date of the accident, the district court properly granted Canal’s Motion for Judgment on the Pleadings.

 

III.

 

For the foregoing reasons, the judgment of the district court is

 

AFFIRMED.

United States District Court, D. Montana,

Missoula Division.

Marcel Alexia FLOREA and Iulia Florea, Plaintiffs,

v.

WERNER ENTERPRISES, INC., a Nebraska Corporation, et al., Defendants.

No. CV 08-52-M-DWM-JCL.

 

Jan. 5, 2010.

 

ORDER

 

DONALD W. MOLLOY, District Judge.

 

The Court having reviewed for clear error the Findings and Recommendations of United States Magistrate Judge Jeremiah C. Lynch (Doc. No. 277), and having found no clear error therein,

 

IT IS HEREBY ORDERED that Defendant Werner Enterprises, Inc.’s motion for partial summary judgment (Doc. No. 139) is DENIED.

 

FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

 

JEREMIAH C. LYNCH, United States Magistrate Judge.

 

This matter is before the Court upon Defendant Werner Enterprises, Inc.’s Motion for Partial Summary Judgment Re: No Liability of Werner 1, filed pursuant to Fed.R.Civ.P. 56. For the reasons stated below the Court recommends the motion be denied.

 

I. INTRODUCTION

 

This action arises from a series of collisions involving multiple semi trucks and other vehicles. The accidents occurred on February 18, 2007, near mile marker 39 on Interstate 90 in Mineral County, Montana.

 

Included among the numerous semi trucks involved in the accidents were the following: (1) one truck operated by A & A Express (“A & A”), (2) one truck operated by Schneider National Carrier, Inc. (“Schneider”), (3) one truck operated by CR England, (4) one truck operated by Airline Transportation Specialists, Inc. (“ATS”), and (5) two trucks operated by Werner Enterprises, Inc. (“Werner”).

 

Plaintiff Marcel Florea was a passenger in the Schneider truck, and he suffered physical injuries as a result of the accidents. Marcel and his wife, Iulia Florea, filed this action advancing negligence claims against the referenced truckingcompanies seeking compensation for Marcel’s injuries and the damages the Floreas sustained as a result of the accidents. Plaintiffs, however, have settled their claims with the Defendants, and their claims are now dismissed from this action by Order entered November 16, 2009.

 

Defendants Werner, A & A, ATS, CR England, and Third-Party Defendant Schneider advance claims against each other for either contribution to, or indemnification for the parties’ liabilities to the Plaintiffs stemming from the accidents at issue in this case. Despite the settlement of the Plaintiffs’ claims, these remaining parties continue to litigate their contribution and indemnification claims. They apparently have jointly funded the settlement with the Plaintiffs, but they dispute the proportionate allocation of responsibility for Plaintiffs’ damages attributable to each party, and they apparently dispute the proportionate amount each party must contribute financially to the parties’ settlement with the Plaintiffs.

 

Werner contends that although two of its trucks were involved, the operation of one of those played no role in the injuries sustained by Marcel Florea. Consequently, Werner seeks a determination that it cannot be held liable for contribution or indemnification to the other parties based on its operation of that truck. A & A and ATS resist Werner’s motion-they contend genuine issues of material fact exist regarding whether the Werner truck caused any injury to Florea.

 

II. DISCUSSION

 

A. Summary Judgment Standards

 

*2Federal Rule of Civil Procedure 56(c) entitles a party to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue of fact is “genuine” if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, and a fact is “material” if it may affect the outcome of the case. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49 (1986). A movant may establish its entitlement to summary judgment where the documentary evidence produced by the parties permits only one conclusion.   Id. at 251.

 

“A moving party without the ultimate burden of persuasion at trial-usually, but not always, a defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment.” Nissan Fire & Marine Ins. Co. Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000). A moving party without the burden at trial must produce evidence which either: (1) negates an essential element of the non-moving party’s claim, or (2) shows that the non-moving party does not have enough evidence of an essential element to ultimately carry its burden at trial. Id. The party must “show” that there is an absence of essential evidence to support the opposing party’s claim. Celotex Corp. v. Cattrett, 477 U.S. 317, 325 (1986). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate by affidavits, depositions, answers to interrogatories of admissions on file, “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324.

 

Where a movant has failed, however, to meet the initial summary judgment burden, the motion should be denied regardless of the nonmovant’s response.   Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).

 

If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial. [Citations omitted.] In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything.

 

Nissan Fire & Marine, 210 F.3d at 1102-03.

 

In deciding a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all justifiable inferences in the non-moving party’s favor. Anderson, 477 U.S. at 255;Betz v. Trainer Wortham & Co., Inc ., 504 F.3d 1017, 1020-21 (9th Cir.2007).

 

B. Application of Montana Law

 

Because jurisdiction over this action is founded upon diversity of citizenship, the Court applies the substantive law of Montana. Medical Laboratory Mgmt. Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th Cir.2002).

 

C. The February 18, 2007 Accidents

 

Although the parties dispute the details of the sequence of events which occurred in the multiple collisions or accidents that gave rise to this lawsuit, the following basic description of the accidents is not disputed, except as otherwise noted below:

 

 

The accidents occurred in the dark, early morning hours on February 18, 2007, on a very icy section of the westbound lanes of Interstate 90, at or near mile marker 39. Multiple semi trucks and other vehicles were involved in the accidents.

 

A & A’s truck, driven by Richard Renner, was the first semi truck to arrive at the location where the accidents subsequently occurred. Mr. Renner’s trailer began sliding on the ice, so he slowed his truck down and steered it over to the shoulder, or emergency lane on I-90. He stopped his truck in the emergency lane without colliding with any other vehicle.

 

The next semi truck to arrive at Mr. Renner’s location was one of the two Werner trucks involved in the accidents, and was driven by Jason Wood (“Werner 1”). The Werner 1 truck was traveling westbound, and approached Mr. Renner’s truck from the rear. Mr. Wood attempted to move the Werner 1 truck to the left-hand lane to travel past Mr. Renner’s A & A truck. But, as Mr. Wood traveled past the A & A truck the trailer of the Werner 1 truck slid on the ice and collided with, or contacted the left rear corner of the trailer attached to A & A’s truck.

 

 Werner’s motion requests, in part, that the Court enter summary judgment dismissing A & A’s claim for liability asserted against Werner for any damage Werner caused to A & A’s trailer in this collision. All of the Defendant truckingcompanies, however, have agreed to dismiss all of their property damage claims pled against each other stemming from the February 18, 2007 accidents. Dkt.# s 262 and 263. Therefore, this aspect of Werner’s motion is now moot.

 

Despite the collision with the A & A trailer, Mr. Wood was able to drive Werner 1 past the A & A truck to the west on I-90. Due to the ice, however, the tires on the Werner 1 truck began spinning, and the truck was unable to climb up the hill on the Interstate to the west of the A & A truck. Therefore, Mr. Wood steered the Werner 1 truck to the right on the shoulder, or emergency lane of I-90. He stopped the truck a significant distance-maybe several hundred feet-to the west of the A & A truck.

 

 The parties have not presented any information to the Court describing the distance between the A & A truck and the location where the Werner 1 truck stopped on the Interstate to the west of the A & A truck. Based on the photographs submitted to the Court, however, it appears that the distance could be several hundred feet. See Dkt. # s 118-4 at 2 of 3, 118-5 at 2 of 3, and 140-1.

 

The third semi truck to arrive at the scene was the Schneider truck, driven by Vyacheslov Chertov. Mr. Chertov was also traveling west on I-90 approaching Mr. Renner’s truck from the rear. Plaintiff Marcel Florea was a passenger in the Schneider truck, and he was asleep in the cab of the truck. Upon reaching the location of the A & A truck, the Schneider truck crashed into the rear of the trailer attached to the A & A truck.

 

Werner and the other parties do not describe the details of the collision between the Schneider and the A & A trucks. They do not describe the severity of the impact, what portion of the Schneider truck or trailer collided with the trailer of the A & A truck, and they do not indicate whether this collision had any impact on Florea. Nevertheless, it is undisputed that the Schneider truck and/or trailer collided with the rear of the A & A trailer.

 

Werner does not present a detailed and completely undisputed description of the specific sequence of events which occurred following the collision between the Schneider and the A & A trucks. Notwithstanding, it is undisputed that at some point following that collision a westbound semi truck operated by CR England, driven by Brandon Nunley, slid on the ice, and that truck, and/or its trailer collided with the rear end of the trailer attached to the Schneider truck. Again, neither Werner nor the other parties describe the severity of that collision, or the consequences of that collision with respect to either Florea or the cab of the Schneider truck.

 

In addition to the collision involving the CR England truck, at some point after the collision between the Schneider and A & A trucks, Werner’s second truck, driven by Lane Trussell (“Werner 2”), approached the site of the collision between the Schneider and A & A trucks. Due to the ice on the Interstate, the Werner 2 truck, and/or its trailer collided with, or made contact with the cab of the Schneider truck. The Werner 2 truck then continued west on I-90 a short distance to the location of the Werner 1truck and, according to Werner, collided with, or made contact with the trailer of the Werner 1 truck before coming to a complete stop. Although Werner does not present any evidence describing the severity of Werner 2’s collision with the Schneider cab, or the severity of Werner 2’s collision with the Werner 1 trailer, it concedes theses collisions occurred.

 

Thereafter, a semi truck operated by ATS, driven by Don Lyon, was traveling west and approached the accident scene. Although Werner advises that the parties dispute whether the ATS truck collided with the cab of the Schneider truck, the evidence is undisputed that the ATS truck continued west, past the location of the A & A and Schneider trucks, to the location of the Werner 1 and Werner 2 trucks. The evidence is also undisputed that the ATS truck collided with the Werner 2 trailer, and the collision split the trailer in half.

 

Although Werner and the other parties do not describe how the cab of the Schneider truck got damaged, it is undisputed that one or more of the various collisions described above obliterated the cab, or severely damaged it beyond recognition as reflected in the photographs filed with the Court. See e.g. Dkt. # 140-7. Werner and the other parties do not state whether Florea was inside the cab, or outside the cab at the time of any of the collisions that occurred after the collision between the Schneider truck and the A & A trailer.

 

Although the Court recognizes the details of the accidents are in dispute, neither Werner nor the other parties explain exactly what happened to Florea in the collisions, and they do not explain which collision or collisions caused Florea’s physical injuries. It is, however, undisputed that after the accidents people at the scene found Florea lying on the Interstate, parallel to the frame of the Werner 2 truck, in front of its drive axles, and near or under the passenger-side fuel tank of the Werner 2 truck. Deposition of Lane Trussell (January 16, 2009) at 96 (Dkt. # 129-5 at 25 of 53). It is also undisputed that the Werner 2 truck was located some distance-maybe a couple hundred feet-to the west of the cab of the Schneider truck where the Werner 2 truck collided with the Werner 1 truck.

 

Although Florea was found under the Werner 2 truck, the evidence, as presented, does not explain which truck, or trucks, physically impacted Florea, how his body got physically caught in the collisions, or how he was transported west from the Schneider truck’s cab to the location of the Werner 1 truck. Based on the sequence of events, however, it is possible that Florea was struck by either the Werner 2 truck, the ATS truck, or both trucks, and that either truck, or both trucks, drug him or carried him on the Interstate to the west and to the location where the Werner 2 truck collided with the Werner 1 truck. See Deposition of Stephen Gaston (December 1, 2008) at 213-214 (Dkt. # 140-2 at 5 of 7) (stating that it is possible that either the Werner 2 truck or the ATS truck struck Florea and moved him on the Interstate).

 

Significantly, the evidence does not explain whether Werner 2’s collision with the Werner 1 trailer may have caused any, some, or all of Florea’s injuries. Contrary to Werner’s assertions, it is not undisputed that Florea was not injured by Werner 2’s collision with Werner 1.

 

D. Werner’s Liability for the Operation of Werner 1

 

All of the parties’ cross claims and third-party claims are predicated upon each of the other parties’ alleged negligent operation of their trucks. “Negligence is the failure to use the degree of care that an ordinarily prudent person would have used under the same circumstance.” Barr v. Great Falls International Airport Authority, 2005 MT 36, ¶ 41, 326 Mont. 93, 107 P.3d 471 (2005).

 

To maintain an action in negligence, the plaintiff must prove four essential elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) the breach was the actual and proximate cause of an injury to the plaintiff, and (4) damages resulted.

 

Peterson v. Eichhorn, 2008 MT 250, ¶ 23, 344 Mont. 540, 189 P.3d 615 (2008). Summary judgment dismissing a claim of negligence is appropriate if the party advancing the claim fails to establish one of these four elements.   Hagen v. Dow Chemical Co., 261 Mont. 487, 492, 863 P.2d 413, 416 (1993).

 

In moving for partial summary judgment Werner asserts that it is not liable for Jason Wood’s conduct and his operation of the Werner 1 truck. Werner’s motion is presented on the sole ground that it believes there exists no evidence that Marcel Florea suffered any injuries as a result of any collision involving the Werner 1 truck or its trailer. Thus, Werner argues the other parties cannot establish the causation element of the negligence claims advanced in this action.

 

Werner asserts its operation of the Werner 1 truck “did not and could not have caused” any of the Plaintiffs’ damages. Dkt. # 141 at 2. Werner construes the facts to suggest that “[t]he only way Werner 1 could have caused the Plaintiffs’ damages is if Werner 1 had collided with the Schneider truck.” Id. at 9. Therefore, it argues, since Werner 1 did not collide with the Schneider truck, “Werner 1 was not involved in any of the collisions that caused Marcel Florea’s personal injuries[,]” and it cannot be held liable to the other Defendants, or Third-Party Defendant Schneider, for either indemnification or contribution. Id. at 10.

 

Contrary to Werner’s assertions, its motion fails to demonstrate the absence of genuine issues as to the material facts relevant to the issue of the cause of Florea’s injuries. Fundamentally, Werner fails to account for the fact, as presented in its moving documents, that the Werner 2 truck collided with the Werner 1 truck. Additionally, Werner fails to address the undisputed fact that after the accidents Florea was found on the ground, near or underneath the passenger-side fuel tank of the Werner 2 truck at the location where the Werner 2 truck collided with the Werner 1 truck-some distance to the west of the Schneider truck. These facts do not support Werner’s conclusion that Florea was not injured by any collision involving the Werner 1 truck.

 

III. CONCLUSION

 

Based on the foregoing, Werner has failed to meet is summary judgment burden of establishing the absence of essential evidence that would support the causation element of the negligence claims asserted in this action with respect to Werner’s operation of the Werner 1 truck. Werner has not established, as an undisputed fact, that Florea was not injured in the collision between the Werner 1 and the Werner 2 trucks. Therefore, Werner is not entitled to summary judgment with respect to its operation of the Werner 1 truck .

 

 Werner’s motion is premised solely on Werner’s assertion that the evidence fails to support the element of causation as is necessary to the success of the negligence claims advanced in this action. In response to the motion the other parties suggest there exist genuine issues of material fact relative to the issue of causation, but they also argue that Werner breached its legal duties in its operation of Werner 1. Therefore, the other parties contend the negligence claims against Werner should survive summary judgment. For purposes of addressing Werner’s motion addressing the issue of causation as presented by Werner, the Court assumes Werner breached a legal duty (or duties) it owed to Marcel Florea based on its operation of the Werner 1 truck. See Dkt. # 138 at 8-19 (discussing the legal duties applicable to A & A’s operation of its truck involved in the accidents). Since Werner’s motion fails on the element of causation the Court need not address the merits of the other three elements of the negligence claims-duty, breach, and damages.

 

Accordingly, IT IS HEREBY RECOMMENDED that Werner’s Motion for Partial Summary Judgment Re: No Liability of Werner 1 should be DENIED.