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Bits & Pieces

Hollingsworth v. Heavy Transport, Inc.

2021 WL 3162564
Court of Appeal, Second District, Division 4, California.
Leanne HOLLINGSWORTH et al., Plaintiffs and Appellants,
v.
HEAVY TRANSPORT, INC. et al., Defendants and Respondents.
B306127
|
Filed 7/27/2021
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael P. Vicencia, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC690999)
Attorneys and Law Firms
Murray & Associates, Lawrence D. Murray, San Francisco, for Plaintiffs and Appellants.
Gray•Duffy, John Duffy, Michelle MacDonald, Encino; Black, Compean & Hall, Frederick G. Hall, Los Angeles, for Defendants and Respondents.

COLLINS, J.

INTRODUCTION
*1 In June 2016, Kirk Hollingsworth (Hollingsworth) was involved in a fatal accident while working for defendant Heavy Transport, Inc. (HT). Hollingsworth’s wife and son, plaintiffs Leanne and Mark Hollingsworth, filed a wrongful death complaint in superior court against HT and Bragg Investment Company, Inc. (Bragg) (collectively, Bragg/HT; the parties dispute whether the defendants are separate companies). Plaintiffs alleged that HT lacked the required workers’ compensation insurance at the time of the incident, and therefore plaintiffs were entitled to sue Bragg/HT under Labor Code section 3706, which states, “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages ….” Bragg/HT then filed an application for adjudication of claim with the Workers’ Compensation Appeals Board (WCAB). Only one of these tribunals could have exclusive jurisdiction over plaintiffs’ claims, and in our previous opinion, Hollingsworth v. Superior Court (2019) 37 Cal.App.5th 927, 249 Cal.Rptr.3d 851 (Hollingsworth I), we held that the superior court, which had exercised jurisdiction first, should resolve the questions that would determine which tribunal had exclusive jurisdiction over plaintiffs’ claims.

Following remand, plaintiffs asserted they were entitled to a jury trial on the factual issues that would determine jurisdiction. The superior court denied plaintiffs’ request and held a hearing in which it received evidence and heard testimony regarding HT’s insurance status. The superior court determined that HT was insured by a workers’ compensation policy at the time of Hollingsworth’s death, and therefore the WCAB had exclusive jurisdiction over the matter. The court entered a judgment terminating proceedings in the superior court, and plaintiffs appealed.

Plaintiffs assert that they were entitled to a jury trial on the fact issues that would determine jurisdiction. We disagree. Although a jury may determine questions relevant to workers’ compensation exclusivity when the issue is raised as an affirmative defense to common law claims, jurisdiction under Labor Code section 3706 is an issue of law for the court to decide. Plaintiffs also contend that the superior court erred in considering parol evidence in interpreting the workers’ compensation insurance policy at issue. We find that the court’s consideration of parol evidence was not erroneous, and that substantial evidence supports the court’s findings. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background facts and previous appellate opinion
On June 20, 2016, a Bragg/HT tractor-trailer was hauling a large Bragg crane that had been used to hoist blades onto electric-generating windmills in the Stockton area. Two tires on the trailer failed, and Hollingsworth, who worked in maintenance for HT, was called to the location to change the tires. After the tires were changed and the tractor-trailer began traveling again, a third tire failed. The rubber treads of the tire came loose and wrapped around the axle of the trailer. Hollingsworth was again called to the scene for repair. As Hollingsworth and the truck driver attempted to free the rubber treads from the axle, Hollingsworth was crushed, causing his death.

*2 “As a general rule, an employee who sustains an industrial injury ‘arising out of and in the course of the employment’ is limited to recovery under the workers’ compensation system.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001, 111 Cal.Rptr.2d 564, 30 P.3d 57; see also Lab. Code, § 3600.) Private employers must either carry workers’ compensation insurance or be self-insured. (Lab. Code, § 3700, subds. (a), (b).) The WCAB has exclusive jurisdiction over claims for workers’ compensation benefits. (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 35, 36 Cal.Rptr.2d 100, 884 P.2d 1048.) If an employer fails to carry the appropriate insurance, however, “any injured employee or his dependents may bring an action at law against such employer for damages” in superior court. (Lab. Code, § 3706.) “If at the time of the accident there was no work[ers’] compensation coverage, then the [WCAB] is without jurisdiction to grant relief, and if there was such coverage then the superior court is without jurisdiction and must leave the parties to pursue their remedies before the [WCAB].” (Scott v. Industrial Acc. Commission (1956) 46 Cal.2d 76, 83, 293 P.2d 18 (Scott).)

Plaintiffs filed a wrongful death complaint in superior court on January 22, 2018, alleging that Hollingsworth was in the course of his employment with HT at the time of his death, and that HT did not have workers’ compensation insurance. Plaintiffs alleged that although Bragg purported to merge HT “out of existence and into” Bragg in 1986, the two companies maintained separate operations, and HT continued to operate as a separate corporation. Plaintiffs alleged that Bragg paid them workers’ compensation benefits, “evidencing the lack of Worker’s Compensation Insurance for Kirk Hollingsworth as the employee” of HT. Plaintiffs further alleged that the Bragg and HT equipment involved in the incident was in a dangerous condition, and that Bragg and HT failed to adequately train their workers, leading to Hollingsworth’s death. Plaintiffs included a demand for jury trial with their complaint.

Bragg/HT demurred to plaintiffs’ complaint. It admitted that Hollingsworth was working for HT at the time of his death. But it asserted that HT was “a fictitious business name of defendant Bragg Investment Company, Inc.,” so the companies were in fact “the same company.” Bragg/HT contended that “Bragg Investment Company, Inc. d/b/a Heavy Transport, Inc.” had an active workers’ compensation policy that covered the incident, so “plaintiffs’ lawsuit is barred in its entirety by the Exclusive Remedy Rule of the Workers’ Compensation System pursuant to Labor Code Sections 3601 and 3602.”

As stated in our previous decision, the trial court overruled the demurrer, finding that plaintiffs had adequately alleged an exception to workers’ compensation exclusivity by asserting that HT did not have workers’ compensation insurance. (Hollingsworth I, supra, 37 Cal.App.5th at p. 931, 249 Cal.Rptr.3d 851.) The WCAB then determined that the accident had occurred in the course of employment, and set a hearing to determine if any workers’ compensation insurance covered the incident. (Ibid.) The parties acknowledged that resolution of the insurance issue would determine which tribunal had exclusive jurisdiction, and in a series of motions and requests, Bragg/HT sought to stay proceedings in the superior court until the WCAB made that finding, while plaintiffs sought to stay the WCAB proceedings until the superior court made that finding. (Id. at pp. 931-932, 249 Cal.Rptr.3d 851.) The superior court stayed all proceedings to allow the WCAB to decide, and plaintiffs filed a petition for writ of mandate in this court. (Id. at p. 933, 249 Cal.Rptr.3d 851.) Following Scott, supra, 46 Cal.2d 76, 293 P.2d 18, we held that the superior court, which had exercised jurisdiction first, “should make the necessary findings to determine which tribunal has exclusive jurisdiction over the remainder of the matter.” (Hollingsworth I, supra, 37 Cal.App.5th at p. 933, 249 Cal.Rptr.3d 851.) We remanded the case with instructions to the superior court to “conduct further proceedings limited to determining which tribunal has exclusive jurisdiction over plaintiffs’ claims.” (Id. at p. 937, 249 Cal.Rptr.3d 851.)

B. Plaintiffs’ request for a jury trial
*3 Following remand, the superior court requested that the parties submit briefs asserting their positions on jurisdiction. Bragg/HT argued that jurisdiction was an issue of law for the court to determine. It stated that a workers’ compensation policy had been issued to Bragg by insurer XL Insurance America, Inc. (XL Insurance), and HT was insured under the policy. Bragg/HT submitted declarations and the insurance policy in support of its contentions. It argued that because it carried workers’ compensation insurance at the time of Hollingsworth’s death, the exception to workers’ compensation exclusivity did not apply, and jurisdiction in the WCAB was appropriate.

Plaintiffs agreed that “[e]xclusive jurisdiction rests on the presence or absence of the injured worker’s employer carrying Worker’s Compensation Insurance for the injured employee at the time and location of the injury.” They argued that this question must be answered by a jury. Plaintiffs also contended that the insurance policy covering Bragg did not include “(a) Heavy Transport Inc[.], a California Corporation, [or] (b) any company named Heavy Transport Inc[.], at a California location.” Plaintiffs further asserted that there had been no “merger” of Bragg and HT under California law, and whether the companies were separate “should be part of the jury’s verdict.”

At a hearing on November 22, 2019 before Judge Mark C. Kim, the superior court noted that the Hollingsworth I opinion remanded the case “to have a hearing and then make a determination as to whether or not this court has the jurisdiction or W.C.A.B. has the jurisdiction.” The court said the “one thing [at] issue” was “whether or not defendants had workers’ compensation coverage for the plaintiff,” and “[i]f they did have coverage, then … it goes to workers’ comp, W.C.A.B.; if there is no workers’ comp insurance coverage for that plaintiff, then it stays with this court.”

Plaintiffs’ counsel agreed with the court’s assessment, and added, “But the decision-maker on that is the jury.” Plaintiffs’ counsel argued that the jurisdictional determination rested on disputed fact issues, and plaintiffs had a right to have fact issues decided by a jury. Counsel for Bragg/HT asserted that jurisdiction was a legal issue for the court to decide.

The court held that plaintiffs were not entitled to a jury trial on the jurisdiction question. The court noted that the parties had submitted evidence in support of their positions, but “my preference is to have live testimony, have witnesses come in and testify.” The court set a “non-jury trial” for February 14, 2020.

Plaintiffs then filed a peremptory challenge to Judge Kim under Code of Civil Procedure section 170.6, and the case was reassigned to Judge Michael Vicencia. Plaintiffs filed an ex parte application seeking an “order restoring right to a jury trial on all claims.” They argued that Judge Kim “mistakenly decided” that Hollingsworth I required that a bench trial determine the jurisdiction issue. Plaintiffs asserted that the “case was set for Court Trial in error as plaintiffs have never waived their right to a jury trial.” They further contended, “Any efforts at a court trial on any contested issue of fact, such as the identify [sic] of the employer and the presence of Worker’s Compensation for that employer would likely result in a judgment void at the start.”

At the ex parte hearing on December 10, 2019, Judge Vicencia questioned whether he could disturb the decision of Judge Kim, and asked plaintiffs’ counsel, “Are you saying that Judge Kim was wrong?” Plaintiffs’ counsel responded, “I’m saying that Judge Kim said it will be decided by the court. It didn’t say by a judge. Juries are part of the court.” Bragg/HT’s counsel stated that the issue already had been decided by Judge Kim. The court noted that juries sometimes decide issues of workers’ compensation exclusivity, and stated that it appeared that “[i]f we call it jurisdiction, then the judge decides. If we call it an affirmative defense, then the jury decides.” Bragg/HT’s counsel responded, “But the appellate court said it’s a jurisdictional issue.”

*4 The court also observed, “Requiring an affirmative defense to be tried to a jury prior to plaintiff making their prima facie showing strikes me as wrong on every level.” Plaintiffs’ counsel said that was not what he was advocating; rather, “Plaintiff puts on the negligence case, and plaintiff puts on the lack of comp and the lack of merger and puts all that in their case in chief.” The court said that in that case, the trial would not be limited to jurisdiction, but “you’re talking about getting a trial date for the whole shebang, and they can put this on as their affirmative defense, right?” Plaintiffs’ counsel replied, “Exactly.” The court noted that Hollingsworth I said “I have to limit it to the issue of jurisdiction.”

The court denied plaintiffs’ ex parte request. The court stated, “I know that the date was set and it was called a nonjury trial, but really, it is … an evidentiary hearing to determine jurisdiction.” The court said it would keep the date set for the hearing and allow witnesses to testify in person, but invited the parties to “provide me as much as you can by way of brief. To the extent that you can agree that declarations are sufficient, great.” The court set a briefing schedule with plaintiffs filing first, because they had the burden of proof.

C. Jurisdiction hearing
The parties set out their positions in documents titled “trial briefs.” Plaintiffs asserted in their brief that Hollingsworth was within the scope of his employment with HT at the time of his death on June 20, 2016, and “[t]he main dispute here relates to the contention that HT did not have Workers Compensation Insurance at the time of his death.” They contended that Hollingsworth’s paychecks, other work documents, uniforms, and a collective bargaining agreement stated that HT was his employer. The ownership documents for the maintenance truck Hollingsworth drove and the tractor involved in the incident listed HT as the owner; the trailer was registered to Bragg. The relevant licenses and permits for the trip were in the name of HT. Plaintiffs asserted that in the Occupational Safety and Health Administration (OSHA) investigation following the incident, HT “informed the OSHA board … that HT was the true employer and that BRAGG had nothing to do with the circumstances leading to Hollingsworth’s death.”

Plaintiffs asserted that HT “did not have in place a policy of Worker’s Compensation Insurance in its name. Hence, this civil suit under Labor Code Section 3706. The insurance policy in effect named an HT company in Oregon, but did not list nor indicate coverage for any HT entity in California ….” Plaintiffs asserted that HT and Bragg were not the same entity. They further stated that checks for workers’ compensation benefits paid to plaintiffs were in the name of Bragg, not HT. Plaintiffs also contended that Bragg’s equipment involved in the incident was defective, in that the tires on the trailer “were not capable of carrying the weight of this 20 ton trailer with an 80 ton crane on it.” No evidence was cited in plaintiffs’ brief.

Bragg/HT asserted in its trial brief that HT “is a DBA” of Bragg, and at the time of the incident, “both Bragg Investment Company and Heavy Transport were named insureds of a workers compensation insurance policy issued by XL Insurance America.” It stated that HT began as a California corporation in 1955 but “merged into” Bragg in November 1986; Bragg/HT attached the fictitious business name statement filed for HT. Bragg/HT described its application for workers’ compensation insurance and attached the package submitted, which included a schedule of named insureds. Bragg/HT stated that in the policy active at the time of the incident, “[t]he applicant is Bragg Investment Company Inc[.], but Heavy Transport is specifically identified in the assigned risk section.” Bragg/HT submitted a declaration by Thomas Poskus, a senior claims specialist with “AXA XL,” the workers’ compensation carrier for HT. Poskus stated that in May 2016, XL Insurance issued a workers’ compensation coverage policy to Bragg, and at the time of the incident, HT was a named insured under the policy. Poskus stated that XL Insurance “accepted coverage” for plaintiffs’ claim and paid benefits to plaintiffs starting in July 2016.

*5 Bragg/HT also submitted the declaration of Gregory Stone, a licensed insurance broker, whose company has “worked with the various Bragg entities and dbas and divisions for decades.” In May 2016, Stone’s company “placed Workers’ Compensation insurance coverage for our client Bragg Investment Company, Inc. with XL Insurance America, Inc.” Stone stated, “In the case of Heavy Transport, the underwriters at XL America were provided with a standard ACORD application which contained the company’s payroll by classification, a loss history and a Description of Operation Form. The underwriters used this information to calculate a rating and determine the premiums which contain a component specific to Heavy Transport.” Stone stated that XL Insurance paid benefits on the Hollingsworth claim under the policy, and “[t]here has never been a coverage dispute regarding this claim.” The president of Bragg/HT, M. Scott Bragg, stated in a declaration that Hollingsworth was employed by HT, HT’s information was included in the application for insurance, and at the time of the incident HT was insured by XL Insurance. The general manager of HT, Robert Weyers, stated in a declaration that HT was insured under the XL Insurance policy at the time of the incident. A declaration by a claims representative from a third-party administrator stated that HT was a named insured under the XL Insurance policy, benefits had been paid to Leanne Hollingsworth on the claim, and benefits payments were ongoing.

Noting that one portion of the XL Insurance policy listed Heavy Transport with an Oregon address, Bragg/HT asserted that “Heavy Transport is not a company in Oregon—which was clearly a typo in the named insureds section of the certified policy.” The Oregon address was for another Bragg company, the “Bragg Cattle Ranch.”

However, Bragg/HT asserted that the intended insured was made clear by information included in the application for workers’ compensation insurance. HT’s Stockton work yard was identified as one of the premises in the application, and HT’s business was described in the application’s schedule of operations. Bragg/HT also noted that the Stockton work yard—where Hollingsworth worked—had a large sign with both Bragg and HT names on it, the pickup truck that Hollingsworth drove had the Bragg “B” logo on it, and Bragg issued Hollingsworth’s W-2 forms.

Bragg/HT also asserted that because HT was a dba of Bragg, it had an “automatic insured” status under the XL Insurance policy, and it was not required to be separately listed, even though it was. Because HT had workers’ compensation insurance, Bragg/HT asserted that plaintiffs could not meet their burden of showing the exception to workers’ compensation exclusivity. It further argued that plaintiffs could not sue Bragg for defective equipment because it was not a separate entity from Hollingsworth’s employer. Bragg/HT argued that the action should be dismissed for lack of jurisdiction, and that the WCAB action should proceed.

In their reply brief, plaintiffs asserted there was no dispute that HT employed Hollingsworth. However, they asserted that HT did not have its own workers’ compensation insurance, and “[p]arent corporations, subsidiary corporations and sister corporations cannot piggyback to avoid liability by claiming a ‘doing business’ status.” They asserted that Bragg and HT maintained separate operations, and that as a subsidiary, HT was required to carry its own insurance. Plaintiffs argued that Bragg paid benefits “for its own potential liability,” but no benefits had been paid in HT’s name.

At the hearing on February 14, 2020, plaintiffs called as an expert witness Scott Thomas, an attorney specializing in “[i]nsurance coverage and litigation.” Thomas stated that he had never worked for an insurance company, but as an attorney he had represented insurance companies and “policy holders of various kinds” in insurance coverage disputes. Thomas testified that workers’ compensation insurance constituted “a very small percentage of the matters that I have been involved with in my career,” but he could nevertheless “recognize and understand how a workers’ compensation insurance policy is structured.”

Thomas stated that he reviewed the information page of the relevant policy, which “is sort of the index for the policy” and includes “the policy’s definition of who is insured.” Thomas concluded that “Heavy Transport, Inc., Mr. Hollingsworth’s employer, is not an insured entity under this policy,” because the information page of the policy did not include HT. He also noted that in the “schedule of named insureds,” a company called Heavy Transport, Inc. was listed, but its location was stated to be in Imnaha, Oregon. There was nothing in the policy stating that a Heavy Transport, Inc. in Stockton, California was insured.

*6 The court asked Thomas, “If the insurer and the insured agreed that it was their intention that the insured be an insured, isn’t that the end of the query? Would you … take the position that there is no coverage when the insured and the insurer agree there is coverage?” Thomas said that under circumstances in which there was an “insurance policy, a contract” that “does not identify party A as an insured, then I would say they’re not insured.” The court asked if, where the parties agreed that their “intention from the beginning was for us to insure them and for them to be an insured,” even if the policy said something different, would Thomas “take the position that no, they are not insured? Isn’t that an absurd position?” The court continued, “Doesn’t the intent of the parties to a contract control? A writing is just evidence of what they intended.” Thomas responded that the intent, compared to the writing, does not control “in every instance.”

Plaintiffs’ counsel asked Thomas how parties might reform a contract if they realized there was a mistake in the written terms, but the court barred this line of inquiry, stating, “This is not a reformation case.” The court stated that the focus should be on the parties’ intent, and “somehow you’ve hired an attorney to, essentially, tell me that under the law, you should win.” The court asked plaintiffs’ counsel to “move on to something else.” Thomas testified that he was not aware that the parties had made any corrections to the endorsement.

On cross-examination, Thomas agreed that the policy included a notation that it applied under the workers’ compensation laws of California and Oregon. Bragg/HT’s counsel asked if it applied to any work site in either state. Thomas replied that he did not know, because that would be a “function of what the insurance policy says.” Bragg/HT’s counsel pointed to the extension of the information page of the policy, which included a list of classification codes including code 7219 for “trucking firms.” Thomas testified, “I do not know where these codes in this policy came from.” Thomas could not recall whether HT had been listed in the application for workers’ compensation insurance, or whether HT had been assigned code 7219. Thomas did not know whether the “premium basis” listed on the information page reflected HT’s payroll. Bragg/HT’s counsel began to ask about other issues in the policy, but the court suggested it was not necessary. Bragg/HT’s counsel said he had no more questions. The court stated, “I will say now, his opinion is of little import to the court.”

Plaintiffs’ counsel called Leanne Hollingsworth to testify. She testified that Hollingsworth’s paychecks came from HT, and she was not aware of anything suggesting that Bragg was Hollingsworth’s employer. Hollingsworth’s work truck and uniforms also said Heavy Transport. Plaintiffs’ counsel also called Mark Hollingsworth as a witness, but when the court determined that his testimony would be similar to his mother’s, the court said the testimony was unnecessary. Plaintiffs had no further witnesses.

Bragg/HT called Gregory Stone, the licensed insurance broker retained by Bragg to obtain workers’ compensation insurance in 2016. In February 2016, Stone participated in a Workers’ Compensation Insurance Rating Bureau (WCIRB) audit of the Bragg companies, along with David Benjamin, who worked for WCIRB. Stone and Benjamin toured the Bragg facilities in Long Beach, as well as the HT facility. WCIRB assigned a classification code to HT: 7219 for trucking firms. Stone included this information in his application to XL Insurance for workers’ compensation insurance for Bragg in March 2016. A “description of operations” was submitted with the application, which is intended to “help the underwriters understand the … scope of operations of each one of the entities involved.” The entities listed in the document were “divisions of one of the named insureds.” HT was one of the divisions listed, and the description stated that it is “[a] division of Bragg Investment Company; specializes in over-sized multi-dimensional and large capacity (from 1 ton to 400 tons) cargo providing a full-service approach to your individualized transportation needs.” Stone explained that “the Bragg companies do business as Heavy Transport. And so, we describe, as a business, what Heavy Transport does, because they have their own units with the decals on the side.”

*7 The insurance application also included a “site location coding” section, which Stone explained was relevant to “how we allocate claims – cost and claims themselves.” HT was included in this section, both at its Long Beach address and its Stockton address. In addition, the insurance application package included payroll projections, which Stone explained were the “basis of premium in a workers’ compensation policy.” Smith stated that HT’s payroll was included in the payroll projections. In the policy itself, HT’s payroll projection—around $7.9 million—was included on the information page next to “trucking firms” with the classification code 7219. Smith stated that the payroll is used to “calculate the premium for that specific classification.” Smith testified that the policy’s schedule of named insureds also included HT, but the notation that HT was located in Oregon was a “clerical error” made by XL Insurance in writing the policy.

On cross-examination, plaintiffs’ counsel asked Stone about exhibit 15, a letter to plaintiffs’ counsel from WCIRB, which stated that in response to an inquiry by plaintiffs’ counsel, “no results were found” regarding workers’ compensation insurance for HT. The letter stated that “the coverage information requested either does not exist or that coverage information could not be found based on the information provided to us.” Plaintiffs’ counsel asked Stone if exhibit 15 indicated that WCIRB “does not recognize Heavy Transport as having workman’s [sic] comp insurance in the year 2016.” Stone replied, “No.” Plaintiffs’ counsel asked Stone whether the various Bragg companies had “Bragg as the parent company.” Stone replied, “Yes. That’s what makes them a named insured.” Stone also stated that he was “not, so much, concerned about a dba being included as a named insured. Because technically, they don’t have to, because they’re a dba of the corporation.” Stone testified that he was not familiar with who held the title on HT’s equipment.

The court then asked Stone questions. The court clarified that Stone was a broker, and asked, “And as a broker, you don’t work, necessarily, for the insured or the insurer, correct?” Stone agreed. The court also asked about the $7.9 million payroll projection, which included the Long Beach and Stockton locations, and asked Stone, “[D]o you go over those records in order to compile the information for the application?” Stone said he did, “[w]ith the named insured,” specifically the chief financial officer, Dennis Ferguson. Stone also stated that “XL” was the insurer at the time of the incident, and it paid the claim. On re-cross, plaintiffs’ counsel established that Stone did not know whether Hollingsworth individually was included in the HT payroll projections, but Stone stated that if “Mr. Hollingsworth was an employee at the time of the payroll projection, his payroll would have been included.”

Bragg/HT offered to call underwriter Rafi Astorian as a witness, but the court stated, “I think I’ve heard enough with respect to the policy.” Bragg/HT offered additional witnesses “who handled” the insurance policy, but the court said they were not necessary, stating, “I apologize, but clearly, Heavy Transport was insured,” and added, “I think there’s no question about it.” The court explained that the intent of the parties was important, and here, “clearly the intent was to cover Heavy Transport Long Beach and Heavy Transport Stockton, and they accepted coverage.” The court stated that its “tentative ruling would be that the conditions of compensation exist with respect to Heavy Transport, and therefore workers’ comp is the exclusive remedy with respect to Heavy Transport ….” The court stated that the “conditions of compensation do not exist with respect to Bragg Investments,” which did not employ Hollingsworth, and “therefore workers’ compensation would not be the exclusive right.” The court invited the parties to present additional evidence or give their closing arguments.

*8 Plaintiffs’ counsel stated, “You disagree with our expert. Okay.” The court interrupted, and stated, “And let me just say, your expert took an outrageous point of view at the outset. The notion that some writing might control over the express intention of the parties is found nowhere in law. It just isn’t.”

In his closing argument, plaintiffs’ counsel asserted that the people “who write insurance policies for a living” are “very sophisticated people” who “don’t want to make mistakes.” Since the incident in 2016, however, “they still have not stepped up and said, we made a mistake. We want to change this. We want to show our true intention.” Plaintiffs’ counsel asserted that if “there truly was an interest in making sure the policy was accurate, to show their true intention, we would have seen that” before now. The court stated, “[Y]ou haven’t explained to me why XL would accept this workers’ comp claim, unless they could trace Mr. Hollingsworth back to some payroll upon which they based their premium.” Plaintiff’s counsel suggested that “they saw … the picture of that Bragg crane on the trailer … showing that Bragg had the potential for exposure here.” The court disagreed, stating that after the incident and claim, “they’re going to say, wait a second, he worked for Heavy Transport. Was Heavy Transport’s payroll part of the premium? Because if it wasn’t, he’s not covered.” Plaintiffs’ counsel responded, “We don’t have any of that evidence.” The court noted that the broker, Stone, said “that the $7.9 million … included the payroll of both Heavy Transport facilities.” Plaintiffs’ counsel pointed out that Stone could not say whether that included payroll for Hollingsworth specifically.

Plaintiff also asserted that HT operated as a separate legal entity in California, but only Bragg was listed on the benefits checks, and “we haven’t seen anything that says, we have corrected our mistake to reflect our true intention. There’s nothing in there that shows their true intention was anything other than that written policy that says, Heavy Transport, Oregon.” Plaintiffs counsel asserted that plaintiffs had done two years’ worth of investigation into whether HT was insured, and “nobody has stepped up and said, yeah, we meant to [insure HT]. Until now, until their civil liability is in issue, and suddenly they walk in the door and go, oh, that was a mistake.”

Plaintiffs’ counsel further argued that the documents were “indisputable,” and the parol evidence rule was based “on the notion that, if it’s in writing, it has some real, serious consequences, and you don’t just say, oh, we decided something different. [¶] And how easy would it be for an employer and their insurance company, which they get along quite well with, to say, we really wanted to do it a different way. We wanted to have that covered at HT.” Plaintiffs’ counsel added, “Where were they in 2016 when this man was killed, and said, oh my god, you know, we didn’t get it right. We need to get this right.”

Before Bragg/HT could present a closing argument, the court stated, “Workers’ compensation is the exclusive remedy.” The court noted that “everyone agrees” HT was Hollingsworth’s employer. The court then considered whether HT had “sufficient insurance, so that the conditions of compensation occur under the Labor Code,” and said, “I conclude that it does.” The court stated that plaintiffs’ expert witness, Thomas, was not “particularly helpful,” and Thomas’s assertion that HT was not covered because of the Oregon address listed in the policy was “a nonsense opinion.” The court stated that if it was “the intent of the insured and the intention of the insurer, to cover all of the HT facilities and its employees, then that coverage exists, and there is workers’ compensation coverage for Heavy Transport.” The court also noted that XL Insurance had accepted coverage and paid the claim, stating, “To me, that evidence makes it quite clear that it was the intention of Bragg Investments and Heavy Transport, Inc., on the one hand, and XL, the insurer, on the other, to include the Heavy Transport, Inc., operations in both Stockton and Long Beach as part of the insurance policy that was in place at the time” of the incident. The court then considered whether Hollingsworth was also an employee of Bragg at the time of the incident, and stated, “the answer to that question is clearly, no. He was not.” The court instructed the parties to prepare a judgment.1

*9 Plaintiffs timely appealed.2

DISCUSSION
Plaintiffs assert two contentions on appeal: (1) the trial court deprived plaintiffs of a jury trial on the factual issue of insurance coverage, and (2) the court’s decision violates the parol evidence rule and contradicts the insurance policy.3 We consider plaintiffs’ contentions below, following the “fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609, 234 Cal.Rptr.3d 831, 420 P.3d 746.)

A. Plaintiffs did not have a right to a jury trial
Plaintiffs assert that the superior court committed reversible error by depriving them of a jury trial “on the factual issue of coverage.” Bragg/HT asserts that jurisdiction is always a question for the court, not a jury, even if the court must make some factual findings in that determination. Whether a party was constitutionally entitled to a jury trial is a question of law that we review de novo. (Caira v. Offner (2005) 126 Cal.App.4th 12, 23, 24 Cal.Rptr.3d 233.) We find that plaintiffs were not entitled to a jury trial on the issue of jurisdiction.

In Hollingsworth I, we issued a writ of mandate and remanded the case to allow the trial court to “conduct further proceedings limited to determining which tribunal has exclusive jurisdiction over plaintiffs’ claims.” (Hollingsworth I, supra, 37 Cal.App.5th at p. 937, 249 Cal.Rptr.3d 851.) Plaintiffs have alleged that Hollingsworth was acting within the scope of his employment with HT at the time of the incident, but that they have a statutory right to bring a claim under Labor Code section 3706 based on HT’s alleged lack of insurance. “Whether or not [an employer] carried the required work[ers’] compensation insurance is a question going to the jurisdiction of the superior court to entertain the action for wrongful death…. [J]urisdiction is a question of law and it is for the court and not for the jury to determine.” (Coleman v. Silverberg Plumbing Co. (1968) 263 Cal.App.2d 74, 79-80, 69 Cal.Rptr. 158 (Coleman).)

*10 Plaintiffs assert that because exclusive jurisdiction relied on a disputed issue of fact—whether HT was insured—they were entitled to have a jury act as factfinder. They rely on cases in which the plaintiffs asserted common law causes of action, but the parties disagreed as to whether the plaintiffs’ claims fell within workers’ compensation exclusivity. “As a general rule, an action brought under Labor Code section 3706 differs markedly from a common law negligence action” (Valdez v. Himmelfarb (2006) 144 Cal.App.4th 1261, 1269, 51 Cal.Rptr.3d 195), because “in an action brought under Labor Code section 3706 an employer’s liability is determined under rules of pleading and proof.” (Id. at p. 1268, 51 Cal.Rptr.3d 195.)

This distinction was discussed in Coleman, supra, 263 Cal.App.2d 74, 69 Cal.Rptr. 158. In Coleman, the decedent’s wife and child sued after their husband and father, Coleman, died while operating a backhoe at a construction site. The defendants included several companies that were involved in the construction project, including Silverberg. The plaintiffs alleged, in part, that they were entitled to sue under Labor Code section 3706 because Silverberg did not carry the appropriate workers’ compensation insurance. (Id. at p. 77, 69 Cal.Rptr. 158.) The court granted the defendants’ motion for nonsuit, and the plaintiffs appealed. The Court of Appeal stated, “The theory of recovery for wrongful death of a presumptive employee (Coleman) caused by the presumptive negligence of Silverberg is based upon sections 3700, 3706 and 3708 of the Labor Code.[ ] Assuming arguendo that Coleman was Silverberg’s employee, plaintiffs had to plead [citations] and prove that Silverberg violated section 3700 by not carrying the work[ers’] compensation required [citations]. We are not here concerned with common law causes of action, in which case it is incumbent on the defendant to plead and prove the employer-employee relationship and work[ers’] compensation insurance coverage. [Citation.] A complaint disclosing an employer-employee relationship in this action without negativing the existence of work[ers’] compensation insurance would have been subject to a general demurrer.” (Coleman, supra, 263 Cal.App.2d at p. 79, 69 Cal.Rptr. 158.) Coleman stated, as quoted above, that “[w]hether or not Silverberg carried the required work[ers’] compensation insurance is a question going to the jurisdiction of the superior court,” and “jurisdiction is a question of law and it is for the court and not for the jury to determine.” (Id. at pp. 79-80, 69 Cal.Rptr. 158.) The court held that the motion for nonsuit was properly granted on this basis. (Id. at p. 80, 69 Cal.Rptr. 158.)

Plaintiffs rely on cases involving common law causes of action such as Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 210 Cal.Rptr.3d 362. There, the plaintiff employee sued the defendant employer and four employees “for assault and intentional infliction of emotional distress after the coemployees staged a mock robbery with Lee as the victim.” (Id. at pp. 610-611, 210 Cal.Rptr.3d 362.) The defendants asserted that the plaintiff’s claims were barred by workers’ compensation exclusivity under Labor Code section 3600. The case was presented to a jury in two phases: the first phase was intended to determine whether the plaintiff’s claims were barred under workers’ compensation exclusivity; if the claims were not barred, liability and damages would be determined in phase two. (Id. at p. 612, 210 Cal.Rptr.3d 362.) Contested issues at trial and on appeal focused on whether plaintiff’s claims satisfied the statutory conditions for workers’ compensation exclusivity, including whether the plaintiff was acting within the course of her employment during the incident and whether the injury was proximately caused by the employment. (Id. at p. 624, 210 Cal.Rptr.3d 362; see Lab. Code, § 3600, subd. (a).) The court ultimately held that the jury had been properly instructed on these issues and upheld the damages award to the plaintiff.4 The exception to workers’ compensation exclusivity in Labor Code section 3706 was not at issue in Lee.

*11 Plaintiffs also rely on Doney v. Tambouratgis (1979) 23 Cal.3d 91, 151 Cal.Rptr. 347, 587 P.2d 1160 (Doney), in which the plaintiff alleged injuries resulting from assault and battery by the defendant. The complaint did not allege an employment relationship, and the defendant did not assert workers’ compensation exclusivity as an affirmative defense until the appeal. The Supreme Court rejected the defendant’s belated contention, stating, “The complaint … contained no allegation directly or indirectly indicating that an employment relationship existed between plaintiff and defendant or that the injuries which formed the basis of the action arose out of and in the course of employment. In these circumstances it became the responsibility of defendant to plead and prove that the conditions of compensation rendering him subject to the protections of the [Workers’ Compensation Act] existed.[ ] This he did not do.[ ] Accordingly he may not now raise the defense of coverage by the act.” (Id. at pp. 97-98, 151 Cal.Rptr. 347, 587 P.2d 1160.) In a footnote, Doney noted the difference between common law-based claims and cases under Labor Code section 3706, and cited Coleman with approval. (Doney, supra, 23 Cal.3d at p. 99, fn. 11, 151 Cal.Rptr. 347, 587 P.2d 1160.)

Plaintiffs also rely on Scott, supra, 46 Cal.2d 76, 293 P.2d 18, which we discussed in detail in Hollingsworth I, supra, 37 Cal.App.5th 927, 249 Cal.Rptr.3d 851. In that case, a lawsuit by an injured employee was pending at the same time that a proceeding regarding the same incident was before the Industrial Accident Commission, a predecessor to the WCAB. The Supreme Court stated that either the superior court or the commission would have exclusive—not concurrent—jurisdiction, “depending on whether or not the injuries were suffered within the course and scope of an employment relationship and so covered by the work[ers’] compensation laws.” (Scott, supra, 46 Cal.2d at pp. 82-83, 293 P.2d 18.) The court discussed the differences between concurrent and exclusive jurisdiction, and within that discussion noted, “Other practical problems, and differences between this situation and that of completely concurrent jurisdiction in two different tribunals are said to be these: [¶] 1. In a jury trial of the superior court action, it appears that a special interrogatory on the question of coverage would (at least in the absence of special circumstances) be necessary in order to disclose what was determined on that point, in case of a verdict for defendant. Without such a special interrogatory it could not be ascertained whether the verdict turned on one of the other pleaded defenses of absence of defendant’s negligence, unavoidable accident, or contributory negligence of plaintiff, rather than on the issue of the employment relationship. This, however it is answered, is a mere incident of procedure which can be handled in the trial court.” (Id. at p. 84, 293 P.2d 18.)

Plaintiffs cite this portion of Scott and argue, “According to the Supreme Court’s Scott decision, it is a jury determination if the injured worker’s employer carried Worker’s Compensation Insurance for the injured employee at the time and location of the injury and if that constitutes a defense.” We disagree with this interpretation of Scott. When discussing the possibility of a special interrogatory to a jury, the court in Scott was discussing “practical problems” that may arise in certain cases. The court was not discussing whether a party has a right to a jury trial for the determination of jurisdictional issues. “ ‘[A]n opinion is not authority for a proposition not therein considered.’ ” (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 118, 33 Cal.Rptr.3d 46, 117 P.3d 660.)

Moreover, it is the general rule that “[i]n a civil case … personal and subject matter jurisdiction ordinarily are issues for the court, not the jury.” (People v. Betts (2005) 34 Cal.4th 1039, 1049, fn. 2, 23 Cal.Rptr.3d 138, 103 P.3d 883.) It is well established that whether a court has subject matter jurisdiction is a question of law. (See, e.g., Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774, 28 Cal.Rptr.2d 190 [“Because the appeal is from a dismissal for lack of subject matter jurisdiction,[ ] a question of law, this court reviews the issue de novo”]; Tearlach Resources Limited v. Western States Internat., Inc. (2013) 219 Cal.App.4th 773, 780, 162 Cal.Rptr.3d 110 [“Questions of subject matter jurisdiction are questions of law, which are reviewed de novo”]; Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1180, 127 Cal.Rptr.2d 706 [“the issue of whether a court has subject matter jurisdiction over an action against an Indian tribe is a question of law subject to de novo review”]; Lundahl v. Telford (2004) 116 Cal.App.4th 305, 312, 9 Cal.Rptr.3d 902 [“Whether California had sole subject matter jurisdiction over spousal support is a question of law that we review de novo”].) And “[a]n issue of law must be tried by the court.” (Code Civ. Proc., § 591.) “When the right to jury trial exists, it provides the right to have a jury try and determine issues of fact. (Code Civ. Proc., § 592; Evid. Code, § 312.) Even in such cases, issues of law are to be determined by the court, rather than a jury. (Code Civ. Proc., § 591; Evid. Code, § 310; see generally 7 Witkin, Cal. Procedure, supra, Trial, § 81, pp. 107-108 [citing cases].)” (Shaw v. Superior Court (2017) 2 Cal.5th 983, 993, 216 Cal.Rptr.3d 643, 393 P.3d 98.)

*12 Because plaintiffs asserted jurisdiction under Labor Code section 3706, it was appropriate for the court, not a jury, to determine the questions relevant to jurisdiction. Plaintiffs did not have a right to a jury trial on these facts. We therefore find no error in the court’s denial of plaintiffs’ request for a jury trial.

B. The court properly considered parol evidence
Plaintiffs contend the superior court’s “decision is contrary to the limitations in the policy and a violation of the parol evidence rule,” and assert that “[t]he basis for the Judgment should be overturned as violating the Parol Evidence Rule.” Bragg/HT asserts that the court correctly considered parol evidence, including the evidence presented by plaintiffs.

“[I]nterpretation of a contract is a judicial function.” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125, 76 Cal.Rptr.3d 585 (Wolf).) Contracts, including insurance policies, “are interpreted so as to give effect to the mutual intention of the parties at the time of contracting, to the extent ascertainable and lawful. [Citations.] The mutual intent of the parties is ascertained from the contract language, which controls if clear and explicit. [Citations.] Where necessary, a contract may be interpreted by reference to the circumstances under which it was made or the matter to which it relates…. Extrinsic or parol evidence may be used to explain ambiguity, context or related matter.” (Fireman’s Fund Ins. Co. v. Workers’ Comp. Appeals Bd. (2010) 189 Cal.App.4th 101, 110-111, 116 Cal.Rptr.3d 658.)

“Although the [parol evidence] rule results in the exclusion of evidence, it ‘is not a rule of evidence but is one of substantive law.’ ” (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343, 9 Cal.Rptr.3d 97, 83 P.3d 497 (Casa Herrera).) The superior court’s determination whether the contractual language is ambiguous is a question of law subject to independent review. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165, 6 Cal.Rptr.2d 554.) “When the competent parol evidence is in conflict, and thus requires resolution of credibility issues, any reasonable construction will be upheld as long as it is supported by substantial evidence.” (Id. at p. 1166, 6 Cal.Rptr.2d 554.)

Plaintiffs argue, “Where there is an integrated contract, such as here, the Parol Evidence Rule prevents any attempt to change the terms” of the contract. They assert that the XL Insurance policy covered only a Heavy Transport, Inc. in Oregon, and based on the court’s consideration of parol evidence, “the terms [of the policy] as to the identity of HT Oregon [were] changed to HT California.” Plaintiffs contend, “While the parties, and the broker had every opportunity to seek a written modification in the form of an endorsement for an additional insured, they did not. They never claimed they made a mistake. [Record citation.] Instead, they prevailed on the Trial Judge to alter the terms for coverage in the insurance agreement to have it apply to a different entity, a California corporation.” Bragg/HT asserted below that its named insured was HT in California, and only the Oregon address was erroneous.5 Bragg/HT contends on appeal that in light of the competing constructions of the policy, the superior court properly considered parol evidence to determine the intent of the contracting parties.

*13 We agree with Bragg/HT. The XL Insurance policy was ambiguous as to whether the named insured was the HT in California that employed Hollingsworth, or a different entity in Oregon. In light of the parties’ competing interpretations of the contract, the court appropriately considered parol evidence to determine the meaning of the disputed terms. The parol evidence rule “does not … prohibit the introduction of extrinsic evidence ‘to explain the meaning of a written contract … [if] the meaning urged is one to which the written contract terms are reasonably susceptible.’ ” (Casa Herrera, supra, 32 Cal.4th at p. 343, 9 Cal.Rptr.3d 97, 83 P.3d 497; see also Wolf, supra, 162 Cal.App.4th at p. 1126, 76 Cal.Rptr.3d 585 [“Extrinsic evidence is admissible … to interpret an agreement when a material term is ambiguous”].) “[T]he intention of the parties as expressed in the contract is the source of contractual rights and duties.[ ] A court must ascertain and give effect to this intention by determining what the parties meant by the words they used. Accordingly, the exclusion of relevant, extrinsic evidence to explain the meaning of a written instrument could be justified only if it were feasible to determine the meaning the parties gave to the words from the instrument alone.” (Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 38, 69 Cal.Rptr. 561, 442 P.2d 641.) Here, the intention of the parties was not clear from the words of the XL Insurance policy alone. In light of the differing interpretations of the policy, the superior court’s consideration of parol evidence to determine the intent of the parties was not erroneous.

Substantial evidence showed that the parties intended HT in California to be a named insured, and that inclusion of the Oregon address was erroneous. Thomas Poskus of XL Insurance stated in his declaration that at the time of the incident, HT was a named insured under the policy. It was undisputed that XL Insurance paid plaintiffs benefits under the policy, indicating that XL Insurance had determined the claim was covered. Broker Gregory Stone, who had worked with Bragg for years, testified that HT, its two California locations, and its WCIRB classification code as a trucking firm were included in the insurance application prepared for XL Insurance. The application supported this testimony. Stone further testified that HT’s payroll projections informed the premium charged for the insurance. “Trucking firms,” the classification code, and HT’s payroll projection were included on the policy’s information page. Substantial evidence supports the court’s conclusion that HT was insured under the XL Insurance policy at the time of Hollingsworth’s death.

Plaintiffs argue in their reply brief that there was a “repeated assumption throughout [Bragg/HT’s] brief … that since Bragg made an application for a Workers’ Compensation Policy, just by submitting that application it would therefore cover Heavy Transport’s operation in California.” This is not an accurate representation of Bragg/HT’s position. Rather, Bragg/HT asserts that the superior court properly considered that HT and HT’s location were included in the insurance application, HT’s payroll informed the policy premium, HT was a named insured, XL Insurance did not dispute coverage, and XL Insurance paid benefits on the claim. We agree that the court properly considered these things to determine the intent of Bragg/HT and XL Insurance, and see no evidence in the record supporting plaintiffs’ contention that Bragg/HT argued that a presumption of coverage arose based on the insurance application alone.

Plaintiffs also argue in their reply that benefit payments were made under Bragg’s name, not HT’s, and therefore HT “is not entitled to immunity.” Plaintiffs cite Hernandez v. Chavez Roofing, Inc. (1991) 235 Cal.App.3d 1092, 286 Cal.Rptr. 919, which held that even though the injured employee was covered by a “general contractor’s workers’ compensation insurance,” the uninsured employer was not immune from liability under Labor Code section 3706. (Id. at p. 1095, 286 Cal.Rptr. 919.) Hernandez is not applicable here, because HT was not an uninsured employer. Furthermore, the name on the benefit checks does not suggest that HT was uninsured. To the contrary, as the superior court noted, payment of the claim shows that XL Insurance found that the incident was covered by the policy.

Plaintiffs have not demonstrated that the court erred in considering parol evidence, or that the court “changed” the policy by interpreting it to mean that HT was insured. The court’s conclusions were supported by substantial evidence. The court was therefore correct in finding that the WCAB has exclusive jurisdiction over plaintiffs’ claims against HT and terminating the proceedings as to HT.

DISPOSITION
*14 The judgment is affirmed. Bragg/HT is entitled to recover its costs on appeal.

We concur:
MANELLA, P. J.
WILLHITE, J.
All Citations
— Cal.Rptr.3d —-, 2021 WL 3162564, 21 Cal. Daily Op. Serv. 7598

Footnotes

1
At the beginning of the hearing, the court asked Bragg/HT’s counsel several questions attempting to clarify the ownership of the defendant companies, the merger of Bragg and HT, and the corporate structure. At the end of the hearing, the court held, over Bragg/HT’s objection, that the case involving plaintiffs’ claims against Bragg would continue in superior court. These issues are not relevant to this appeal.

2
The court’s judgment terminating proceedings in the superior court is appealable. (See Furtado v. Schriefer (1991) 228 Cal.App.3d 1608, 1613, 280 Cal.Rptr. 16.) Bragg/HT filed a cross-appeal, which it later dismissed.

3
Every appellant’s opening brief is required to “[p]rovide a summary of the significant facts limited to matters in the record” (Cal. Rules of Court, rule 8.204(a)(2)(C)) and state each point of argument “under a separate heading or subheading summarizing the point.” (Id., rule 8.204(a)(1)(B).) Here, the 49-page “Introduction” section of plaintiffs’ opening brief is peppered with legal contentions and commentary about the superior court’s perceived errors. Legal arguments not included in the argument section of plaintiffs’ opening brief under appropriate headings have been forfeited. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179, 215 Cal.Rptr.3d 701 [“Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading”].)

4
Plaintiffs also cite Ramey v. General Petroleum Corp. (1959) 173 Cal.App.2d 386, 343 P.2d 787, without including a specific page citation, asserting that the court “reviewed a jury trial on predicate facts for application of compensation [sic] as a defense,” and found that “[t]here was no question that the employer and the employee was [sic] entitled to a jury trial on the issue of coverage.” In fact, Ramey involved an appeal following a demurrer based on the statute of limitations. The court did not consider or decide whether a party was entitled to a jury trial with respect to workers’ compensation coverage.

5
Plaintiffs assert that Bragg/HT’s position is that because Bragg as a parent company sought insurance or was insured, HT as Bragg’s subsidiary was automatically also insured. This does not accurately reflect Bragg/HT’s position. Rather, Bragg/HT contends that Bragg, “on behalf of itself and its divisions including Heavy Transport,” obtained insurance that specifically included HT as a division of Bragg.

Freight Management Group, Inc. v. Chemex, Inc.

2021 WL 3779591
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeals of Utah.
FREIGHT TEC MANAGEMENT GROUP INC., Appellee,
v.
CHEMEX INC., Appellant.
No. 20200096-CA
|
Filed August 26, 2021
Second District Court, Farmington Department
The Honorable David J. Williams
No. 170700611
Attorneys and Law Firms
Brennan H. Moss, Attorney for Appellant
Stevan R. Baxter and Chase B. Ames, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE RYAN M. HARRIS and SENIOR JUDGE KATE APPLEBY concurred.1

Opinion
ORME, Judge:
*1 ¶1 Freight Tec Management Group, Inc. (Freight Tec) sued Chemex, Inc. for breach of contract after Chemex refused to pay for Freight Tec’s services in arranging interstate transportation of two freight loads on Chemex’s behalf. Chemex counterclaimed, asserting that a prior load Freight Tec had arranged to transport never arrived at its intended destination. Days before the close of fact discovery, Freight Tec moved for summary judgment on its claim and on Chemex’s counterclaim. Chemex filed two motions for an extension of time to respond. The district court denied both motions for extension and later granted summary judgment in Freight Tec’s favor on all claims. The court further held that Freight Tec was contractually entitled to recover the attorney fees and costs it incurred in pursuing its breach of contract claim against Chemex and in defending against Chemex’s counterclaim.

¶2 Chemex appeals, arguing that the court exceeded its discretion in denying its motions for extensions of time. It further contends that the court erred in concluding, on summary judgment, that federal law preempted four of its five claims and in later awarding Freight Tec the attorney fees it incurred in defending against Chemex’s counterclaim. We hold that the court acted within its discretion when it denied Chemex’s motions for extension. And because Chemex failed to respond to the summary judgment motion below, we hold that it failed to preserve its challenges to the court’s grant of summary judgment on appeal. Lastly, we affirm the court’s award of attorney fees and award Freight Tec attorney fees incurred on appeal.

BACKGROUND2
¶3 Freight Tec is an interstate property broker operating under the authority of the Federal Motor Carrier Safety Administration. “[I]t arranges for one or more qualified motor carriers to physically pick up, transport, and deliver” freight for its shipping customers. In 2013, Chemex, which is in the business of “wholesale plastics,” signed and submitted a credit application so that Freight Tec could perform brokerage services for Chemex on credit. Freight Tec approved the credit application and began brokering freight for Chemex.

¶4 In the credit application, Chemex agreed
that any and all claims for loss or damage to cargo or theft of cargo and any claims for delay in delivery of freight will be directed to and asserted directly against the carriers arranged by Freight Tec. No such claims will be asserted against Freight Tec, and Freight Tec, who is acting in all respects pertaining hereto as an interstate property broker, will not be liable for any such claims.
The credit application also stated that in addition to agreeing to the provisions contained within its four corners, “Applicant agrees and accepts each of the Terms and Conditions found on the Freight Tec website,” followed by the website’s internet address. Those Terms and Conditions similarly stated that Freight Tec, “being a broker, has no liability to any person or entity for any loss of or damage to any such freight and that [Freight Tec] has no liability to any person or entity for any delay in delivery of such freight,” and that the applicant agrees “to look solely to any carrier arranged by [Freight Tec] to transport any subject freight for recovery of any loss of or damage to such freight or delay in delivery of such freight.” Nevertheless, the Terms and Conditions stated that Freight Tec “may, at [its] sole option, assist [Applicant] or others in pursuing claims for loss of or damage to freight or delay in delivery of freight with the carrier.”

*2 ¶5 Concerning payment and any attorney fees and court costs incurred in collecting on amounts owed, the credit application provided,
Any such charges not paid to Freight Tec within thirty (30) days from the date of an invoice shall accrue interest at the rate of 1.5% per month. It is further agreed that the Applicant shall pay any collection expenses, including, but not limited to, attorneys fees and court costs, that may become necessary to effect collection from Applicant ….
The Terms and Conditions likewise provided for an interest rate of 1.5% per month on unpaid invoices and stated that the applicant will be responsible “for any and all costs incurred by [Freight Tec] in collecting the amounts owing, including, but not limited to, reasonable attorney fees.”

¶6 On July 6, 2016, Chemex requested that Freight Tec arrange transportation of a load from Houston, Texas, to Winter Haven, Florida (the Winter Haven load). That same day, Freight Tec entered a broker-carrier agreement with USA Logistics, Inc., in which USA Logistics agreed to transport one or more loads, arranged by Freight Tec. Freight Tec then engaged USA Logistics to transport the Winter Haven load to its intended destination. USA Logistics’ records indicated that the Winter Haven load arrived in Winter Haven, Florida, on July 8, 2016, around 8:30 a.m., but it did not have a customer-signed proof of delivery form. On July 20, Freight Tec invoiced Chemex in the amount of $1,900 for its brokerage services on the Winter Haven load. In August, Chemex paid that invoice and also separately paid USA Logistics for freight charges.

¶7 A few months later, Freight Tec arranged transportation of two additional loads on Chemex’s behalf: the first from Troy, North Carolina, to Jacksonville, Florida (the Jacksonville load), and the second from Oyster Creek, Texas, to Birmingham, Alabama (the Birmingham load). Both shipments arrived on time and in good condition. In November, Freight Tec submitted a $1,000 invoice to Chemex for its brokerage services on the Jacksonville load and a $1,150 invoice for its services on the Birmingham load. Chemex refused to pay either invoice. Instead, in December, Chemex demanded $19,180.02 from Freight Tec, claiming that the Winter Haven load had never been delivered.

¶8 Based on Chemex’s representations and the lack of a customer-signed proof of delivery form, Freight Tec exercised its option under the Terms and Conditions to sue USA Logistics for the allegedly undelivered Winter Haven load. In March 2018, after USA Logistics provided proof to Freight Tec’s satisfaction that the Winter Haven load had indeed been delivered, Freight Tec dismissed USA Logistics from the suit and amended its complaint to name Chemex as a defendant, alleging breach of contract relating to Chemex’s refusal to pay for the Jacksonville load and the Birmingham load.3 Chemex counterclaimed, alleging breach of contract, negligence, negligent misrepresentation, conversion, and breach of fiduciary duty against Freight Tec.

*3 ¶9 On August 3, 2018, Chemex served Freight Tec with discovery requests, to which Freight Tec responded on September 7. On November 28, Freight Tec moved for summary judgment on its breach of contract claim against Chemex and on Chemex’s counterclaim. Fact discovery closed approximately one week later, on December 3.

¶10 On December 12, the day its opposition to Freight Tec’s motion for summary judgment was due, Chemex’s counsel emailed Freight Tec’s counsel requesting an extension until December 21. Chemex did not mention Freight Tec’s discovery responses in its request. Freight Tec agreed to the extension. On December 19, two days before its summary judgment response was now due, Chemex sent a letter to Freight Tec stating that while preparing its opposition to the summary judgment motion, “it became apparent that [it was] unable to provide a complete response due to [alleged] deficiencies in” Freight Tec’s discovery responses. Freight Tec responded the next day, offering to meet and confer via telephone but stating that “all admissions and denials stand as stated and all documents responsive to [Chemex’s] requests have been produced.”

¶11 On the day Chemex’s summary judgment response was due, it asked the district court for an extension of time pursuant to rule 6(b)(1)(A) of the Utah Rules of Civil Procedure (the First Motion), alleging that Freight Tec “refused to provide important information and documents to Chemex that directly relate to its claims in this case.” On April 1, 2019, following argument, the court denied the First Motion on the grounds that Chemex had not demonstrated good cause and that Chemex had failed to avail itself of the proper procedural avenue for such situations under rule 56(d) of the Utah Rules of Civil Procedure.

¶12 Almost two weeks later, Chemex filed another motion for an extension (the Second Motion), this time under rule 6(b)(1)(B) of the Utah Rules of Civil Procedure. The court denied the Second Motion, noting that because Chemex had failed to demonstrate good cause in the First Motion, it also “failed to show entitlement to relief under Rule 6(b)(1)(B).” Furthermore, the court determined that Chemex was not entitled to an extension under rule 6(b)(1)(B) because it had also failed to show excusable neglect.

¶13 Given its denial of both motions for extension, the court stated that “any opposition to [Freight Tec’s] Motion for Summary Judgment will not be considered.”4 But, the court continued, “This ruling does not result in the automatic grant of summary judgment, … and the Court will consider the arguments raised in the Motion for Summary Judgment.” See Pepperwood Homeowners Ass’n v. Mitchell, 2015 UT App 137, ¶ 6, 351 P.3d 844 (“[S]ummary judgment may not be entered against the nonmoving party merely by virtue of a failure to oppose; the rules of civil procedure allow entry of summary judgment against a defaulted party only ‘if appropriate.’ ”) (quoting Utah R. Civ. P. 56(e)).

*4 ¶14 The court granted summary judgment in Freight Tec’s favor on all claims. On Freight Tec’s claim for breach of contract, the court held that “[b]ased on the undisputed material facts, Chemex breached the contract in failing to pay Freight Tec all amounts owed under the [credit application] for Freight Tec’s services related to the [Jacksonville load].”5 Accordingly, the court ordered Chemex to pay $1,000 plus interest as well as attorney fees and costs.

¶15 Turning next to Chemex’s counterclaim, the court held that the Federal Aviation Administration Authorization Act (the FAAAA) expressly preempted Chemex’s claims for negligence, negligent misrepresentation, and breach of fiduciary duty “because these claims relate to and affect a broker’s ‘price, route, or service … with respect to the transportation of property.’ ” See 49 U.S.C. § 14501(c)(1). The court further held that another federal statute, known as the Carmack Amendment, see id. § 14706, impliedly preempted Chemex’s claim for conversion because it “provides the exclusive remedy for cargo claims” and “covers claims against interstate freight brokers like Freight Tec.” On Chemex’s remaining claim for breach of contract, the court held that “[b]ased on the explicit terms of the [credit application and the Terms and Conditions], Chemex cannot hold Freight Tec liable for any claims related to the loss or damage of cargo and all such claims must be directed at [USA Logistics].” Lastly, based on the credit application, which “Chemex admitted that it agreed to … in its pleadings,” the court granted Freight Tec “all attorney fees and costs incurred” in defending against Chemex’s counterclaim.

¶16 During the subsequent hearing to calculate the attorney fees award, Chemex did not challenge the reasonableness of the amount Freight Tech was requesting. Instead, it argued that under the credit application, Freight Tec was contractually limited to recovering attorney fees and costs incurred only in pursuing its breach of contract claim against Chemex and that Freight Tec was not entitled to fees associated with defending against Chemex’s counterclaim. The court rejected this argument, ruling that Freight Tec was entitled to recover fees and costs associated with defending against the counterclaim because the parties’ claims were “inextricably intertwined.” The court stated that although “Chemex’s counterclaims rested on several legal theories[,] … all were asserted to defend against or counter Freight Tec’s breach of contract claim and all involved a common core of facts.” Accordingly, the court awarded Freight Tec $21,728 in attorney fees and $658.39 in court costs.

¶17 Chemex appeals.

ISSUES AND STANDARDS OF REVIEW
¶18 Chemex raises several issues on appeal. We first address Chemex’s claim that the district court exceeded its discretion when it denied Chemex’s motions for extensions of time. Because the decision to grant or deny a motion for extension is discretionary, see Williams v. Department of Corr., 2016 UT App 156, ¶ 28, 380 P.3d 340, we will not reverse the court’s decision “absent an erroneous conclusion of law or where there is no evidentiary basis for the court’s ruling,” Dahl v. Dahl, 2015 UT 79, ¶ 63, 459 P.3d 276 (quotation simplified). See R4 Constructors LLC v. InBalance Yoga Corp., 2020 UT App 169, ¶ 7, 480 P.3d 1075 (“We review a court’s decision on extending … time … for an abuse of discretion, reversing only if there is no reasonable basis for the district court’s decision.”) (quotation simplified).

*5 ¶19 Chemex also challenges the grant of summary judgment to Freight Tec, arguing that the court erred in holding that federal law preempted Chemex’s claims and that “Chemex was bound by the Terms and Conditions presented by Freight Tec.” Ordinarily, “we review a district court’s grant of summary judgment for correctness and afford no deference to the court’s legal conclusions.” Jones v. Farmers Ins. Exch., 2012 UT 52, ¶ 6, 286 P.3d 301 (quotation simplified). But we conclude that the court did not exceed its discretion in denying Chemex’s motions for extensions of time, see infra section I.B, and Freight Tec’s motion for summary judgment stood unchallenged below. Accordingly, as discussed in more detail in section II.A, Chemex did not preserve its challenge to the district court’s summary judgment ruling and cannot use this appeal to make the arguments it might have made in a memorandum it never filed in the district court.

¶20 Lastly, Chemex challenges the court’s award of attorney fees to Freight Tec. “Whether attorney fees are recoverable in an action is a question of law, which we review for correctness.” UDAK Props. LLC v. Canyon Creek Com. Center LLC, 2021 UT App 16, ¶ 10, 482 P.3d 841 (quotation simplified). Likewise, “whether the [court’s] findings are sufficient to support the award is a question of law reviewed for correctness.” Foote v. Clark, 962 P.2d 52, 55 (Utah 1998). But the “[c]alculation of reasonable attorney fees is in the sound discretion of the trial court and will not be overturned in the absence of a showing of a clear abuse of discretion.” Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988) (internal citations omitted).

ANALYSIS
I. Motions for Extension of Time

A. Jurisdiction
¶21 Before reaching the merits of Chemex’s arguments, we must first address whether its notice of appeal conferred jurisdiction on this court to review the district court’s orders denying Chemex’s two motions for extension. See Hayes v. Intermountain GeoEnvironmental Services Inc., 2018 UT App 223, ¶ 2, 437 P.3d 650 (“The initial inquiry of any court should always be to determine whether the requested action is within its jurisdiction.”) (quotation simplified); McClellan v. State, 2012 UT App 316, ¶ 5, 290 P.3d 326 (“Whether we have subject matter jurisdiction is a threshold issue, which can be raised at any time and must be addressed before the merits of other claims.”). Freight Tec argues that this court lacks jurisdiction to address this issue because Chemex failed to specifically identify the court’s orders denying the motions for extension in its notice of appeal.

¶22 Rule 3(d) of the Utah Rules of Appellate Procedure mandates that the notice of appeal include, in relevant part, “the judgment, order, or part thereof being appealed.” Utah R. App. P. 3(d)(2). See Pulham v. Kirsling, 2019 UT 18, ¶ 23, 443 P.3d 1217 (“The object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case.”) (quotation simplified). Our Supreme Court has “held that rule 3(d)’s requirement is jurisdictional.” Pulham, 2019 UT 18, ¶ 23 (quotation simplified). But “the language of rule 3(d) does not require a party appealing from an entire final judgment to specify each interlocutory order of which the appellant seeks review.” Wilson v. Sanders, 2019 UT App 126, ¶ 28, 447 P.3d 1240 (quotation simplified). Rather, “where the intermediate order of the court constitutes one link in the chain of rulings leading to [a final judgment], [the appellant] is entitled to challenge it based on a notice of appeal identifying the final order.” North Fork Special Service Dist. v. Bennion, 2013 UT App 1, ¶ 18, 297 P.3d 624 (quotation simplified). See Wilson, 2019 UT App 126, ¶ 28 (“When an appeal is taken from a final judgment, there is no requirement that the notice designate intermediate orders which are to be raised as issues on appeal.”) (quotation simplified).

*6 ¶23 Here, Chemex stated in its notice of appeal that it was appealing the district court’s order denying Chemex’s statement of discovery issues, the summary judgment order, the final judgment, and “all other interim rulings, orders, and minute entries.” Thus, although Chemex’s notice of appeal did not specifically name the court’s orders denying Chemex’s two motions for extension, these orders were clearly a “link in the chain of rulings” culminating in written final judgment. See North Fork, 2013 UT App 1, ¶ 18 (quotation simplified). Indeed, the court specifically stated that, given its denial of Chemex’s motions for extension, it would not consider any opposition to Freight Tec’s summary judgment motion—which motion it subsequently granted and based on which it entered final judgment against Chemex. Accordingly, we have jurisdiction to review the court’s order denying Chemex’s motions for extension and proceed to address the merits of its challenges.6

B. Merits
¶24 Chemex filed two motions for extension: the First Motion was brought under rule 6(b)(1)(A) of the Utah Rules of Civil Procedure and the Second Motion was brought under rule 6(b)(1)(B). We address the district court’s denial of each motion and conclude that the court did not exceed its broad discretion in either instance.

¶25 Rule 6(b)(1) provides,
When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

¶26 As relevant to both parts of rule 6(b)(1), good cause “pertains to special circumstances that are essentially beyond a party’s control.”7 Reisbeck v. HCA Health Services of Utah, Inc., 2000 UT 48, ¶ 13, 2 P.3d 447 (emphasis omitted). It “comes into play in situations in which there is no fault—excusable or otherwise.” Utah Republican Party v. Herbert, 678 F. App’x 697, 700 (10th Cir. 2017) (quotation simplified). Accordingly, “it requires the moving party to show the deadline cannot be met despite the movant’s diligent efforts.” Id. at 701 (quotation simplified).

*7 ¶27 As relevant to rule 6(b)(1)(B), excusable neglect “is an admittedly neglectful delay that is nevertheless excused by special circumstances.” Reisbeck, 2000 UT 48, ¶ 13 (emphasis omitted). Our Supreme Court has identified four factors that are relevant to the excusable neglect inquiry: “(i) the danger of prejudice to the nonmoving party, (ii) the length of the delay and its potential impact on judicial proceedings, (iii) the reason for the delay, including whether it was within the reasonable control of the movant, and (iv) whether the movant acted in good faith.” West v. Grand County, 942 P.2d 337, 340–41 (Utah 1997) (quotation simplified). See Stoddard v. Smith, 2001 UT 47, ¶¶ 24–25, 27 P.3d 546. But our Supreme Court has emphasized that the excusable neglect determination is so fact intensive and “so varied and complex that no rule adequately addressing the relevance of all these facts can be spelled out.” West, 942 P.2d at 340 (quotation simplified). See Jones v. Layton/Okland, 2009 UT 39, ¶ 18, 214 P.3d 859 (“[T]here is no specific legal test for excusable neglect.”). At its core, “excusable neglect requires some evidence of diligence in order to justify relief.” Jones, 2009 UT 39, ¶ 20. Thus, “where a party or party’s attorney was concededly neglectful, the court must determine whether that neglect should, on balance, be excused.” Reisbeck, 2000 UT 48, ¶ 15. This “inquiry is fundamentally equitable in nature and entails broad discretion.” Id. But “[a] district court must exercise its broad discretion in furtherance of the ultimate goal of the excusable neglect inquiry: determining whether the moving party has been sufficiently diligent that the consequences of its neglect may be equitably excused.” Jones, 2009 UT 39, ¶ 20.

¶28 In the First Motion, Chemex argued that good cause existed because Freight Tec “refused to provide important information and documents to Chemex that directly relate to the claims in this case.” After “reviewing the timeline of the case,” the district court concluded that good cause did not exist. Specifically, Chemex asserted that it did not discover the deficiencies in Freight Tec’s responses to its discovery requests until it began preparing its opposition to Freight Tec’s motion for summary judgment. But the court noted that Freight Tec served its responses to Chemex three months prior to the close of fact discovery and Freight Tec moved for summary judgment “just days before that deadline.” The court also found it relevant that when Chemex first requested an extension from Freight Tec—nine days after the close of fact discovery and the day Chemex’s response to the summary judgment motion was due—Chemex did not raise any issues concerning Freight Tec’s discovery responses. Indeed, Chemex did not raise those issues for another week. Accordingly, the court stated that “it appears that Chemex did not even analyze [Freight Tec’s] discovery responses until more than three months after they were served and approximately two weeks after the close of fact discovery.” And because “Chemex has never offered an explanation regarding the delay in analyzing and raising the discovery issues,” the court held that it could not make a finding of good cause and denied the First Motion.

¶29 In ruling on the Second Motion, filed eleven days after the court’s denial of the First Motion, the court noted that because Chemex had not demonstrated good cause in the First Motion, it also “failed to show entitlement to relief under Rule 6(b)(1)(B).” In any event, the court additionally determined that Chemex had not established excusable neglect. Focusing on the third factor relevant to the excusable neglect inquiry, that is, the reason for the delay, see West, 942 P.2d at 340–41, the court reiterated that “Chemex has never provided an explanation for its delay in reviewing and analyzing [Freight Tec’s] discovery responses.” Although Chemex attributed its delay in filing the Second Motion to waiting for the court to rule on the First Motion, the court noted “that had Chemex raised the discovery issues in a timely manner or had Chemex responded to the Motion for Summary Judgment pursuant to Rule 56(d), these issues could have been resolved in the ordinary course in the case.” And because Chemex “failed to provide any explanation justifying its delays in this case,” the court declined to analyze the remaining relevant factors, stating that “[e]ven if those factors weighed in favor of Chemex, they would not outweigh the fact that Chemex has not provided any justification for its delay.”

*8 ¶30 Chemex argues that the district court abused its discretion in denying the First Motion because Chemex, “in good faith, … sought an extension to address discovery deficiencies it felt were necessary to oppose Freight Tec’s motion for summary judgment.” Quoting Rachel v. Troutt, 820 F.3d 390, 394 (10th Cir. 2016), Chemex argues that “[g]ood cause ‘should be liberally construed to advance the goal of trying each case on the merits.’ ” Chemex asserts that it satisfied this liberal standard because it did not have the opportunity to “evaluate the matter as a whole” and discover the deficiencies in Freight Tec’s responses until it began preparing to oppose Freight Tec’s summary judgment motion.8

¶31 But Chemex does not grapple with the crux of the district court’s reasoning for why Chemex failed to show good cause. The court noted that the First Motion—filed the day Chemex’s opposition to Freight Tec’s summary judgment motion was due—did not mention the deficient discovery responses. Indeed, Chemex did not make that argument for another seven days. Based on this, the court noted that it appeared Chemex had not analyzed the discovery responses “until more than three months after they were served and approximately two weeks after the close of fact discovery.” The court noted that “Chemex has never offered an explanation regarding the delay in analyzing and raising the discovery issues,” without which the court could not make a determination of good cause.

¶32 We agree with the court that Chemex’s explanation that it did not have an opportunity to closely examine Freight Tec’s responses until it began to prepare its response to the summary judgment motion does not sufficiently address the court’s stated point of concern, because it seems that Chemex had not reviewed the discovery responses by the date its response to summary judgment was originally due, that is, when it requested an extension of time from Freight Tec. Even applying a liberal standard, in light of this absence of sufficient explanation for the cause of Chemex’s delay in reviewing the discovery responses as part of its preparation to oppose summary judgment, the court did not exceed its discretion in concluding that Chemex had not shown good cause for an extension and in denying the First Motion on that basis. See Utah Republican Party v. Herbert, 678 F. App’x 697, 700 (10th Cir. 2017) (stating that although “Rule 6(b)(1) should be liberally construed to advance the goal of trying each case on the merits[,] … an enlargement of the time period is by no means a matter of right”) (quotation simplified).

*9 ¶33 Regarding the Second Motion, Chemex argues that “the district court abused its discretion because it narrowly interpreted excusable neglect to arise only if circumstances out of Chemex’s control delayed its opposition to Freight Tec’s summary judgment motion.” Chemex contends that the court improperly “focused on Chemex’s delayed analysis of Freight Tec’s discovery responses from months before” instead of evaluating the “minimal” eleven-day delay between the court’s denial of the First Motion and Chemex’s filing of the Second Motion. Because we conclude the court did not exceed its discretion in finding that Chemex had not shown good cause, we do not reach this challenge to the court’s excusable neglect determination.

¶34 By its plain terms, rule 6(b)(1)(B) requires a moving party to demonstrate good cause and excusable neglect. See Utah R. Civ. P. 6(b)(1) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time … on motion made after the time has expired if the party failed to act because of excusable neglect.”) (emphasis added). Although interrelated,9 the two standards are distinct. Accordingly, irrespective of whether Chemex was able to establish excusable neglect, the district court acted within its discretion when it denied the Second Motion because Chemex had not established the requisite good cause.10

II. Summary Judgment

A. Preservation
¶35 Chemex contends that the district court erred in concluding that federal law preempted Chemex’s counterclaim against Freight Tec. But because Chemex did not properly oppose Freight Tec’s motion for summary judgment, it has not preserved this argument for appeal.

¶36 “Our appellate system has developed along the adversarial model, which is founded on the premise that parties are in the best position to select and argue the issues most advantageous to themselves, while allowing an impartial tribunal to determine the merits of those arguments.” State v. Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443. Under this system, “parties, not the courts, have the duty to identify legal issues and bring arguments to adjudicate their respective rights and obligations. It is through fulfilling this duty in a district court that parties also fulfill their duty to preserve arguments for appeal.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 23, 427 P.3d 338 (quotation simplified). In other words, “an issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it.” Johnson, 2017 UT 76, ¶ 15 (quotation simplified). An appellate court will ordinarily not reach the merits of an unpreserved argument absent a valid exception to the preservation rule. See id.

*10 ¶37 Here, Chemex did not preserve its challenges to the summary judgment rulings because it did not oppose Freight Tec’s motion for summary judgment and, therefore, did not “bring arguments to adjudicate [its] respective rights and obligations.” See True, 2018 UT App 86, ¶ 23 (quotation simplified). See also Tronson v. Eagar, 2019 UT App 212, ¶ 18, 457 P.3d 407 (“[A] nonmovant who fails to oppose a summary judgment motion has thereby failed to preserve any objection to the district court’s entry of summary judgment against it, and … on appeal, any challenge to the district court’s entry of an unopposed summary judgment motion would be reviewed only for plain error.”); Stevens v. Wall, 2011 UT App 372, ¶ 4, 264 P.3d 568 (per curiam) (holding that because the appellant “failed to oppose the summary judgment motion in the trial court” and therefore “did not raise any challenge to the motion below[,] … he ha[d] waived the challenge to the summary judgment on appeal”).

¶38 Chemex argues that the issue is preserved because, “regardless of Chemex’s inability to oppose the motion” for summary judgment, the district court “had the opportunity to rule on preemption” when it granted summary judgment to Freight Tec. But, our Supreme Court has clarified, to present a district court with an opportunity to rule on an issue for preservation purposes, “the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” Johnson, 2017 UT 76, ¶ 15 (quotation simplified). Because Chemex did not succeed in submitting its opposition to the summary judgment motion, it did not raise legal grounds to deny summary judgment, much less introduce legal authority in support of those arguments. Accordingly, Chemex’s challenges to the district court’s preemption rulings are unpreserved and, absent a valid exception to our preservation rule, Chemex may not substitute its appellate brief for the memorandum in opposition to summary judgment that it was precluded from submitting to the district court.

B. Plain Error
¶39 Chemex argues that even if it did not preserve its preemption arguments in the district court, the plain error exception to the preservation rule applies.11 “Under plain error review, we will reverse only if (i) an error exists, (ii) the error should have been obvious to the trial court, and (iii) the error is harmful.” Cook Martin Poulson PC v. Smith, 2020 UT App 57, ¶ 19, 464 P.3d 541 (quotation simplified). Without addressing the first and third prongs of the plain error inquiry, we conclude that Chemex’s argument fails because any alleged error in the court’s preemption analysis was far from “obvious.”

¶40 Concerning its claim for conversion, Chemex argues that “[a]lthough there is no controlling [Utah] law on the issue, it should have been apparent to the district court that the Carmack Amendment12 does not apply to brokers, like Freight Tec.” Chemex cites several federal district court cases in support of this contention. See, e.g., ASARCO LLC v. England Logistics Inc., 71 F. Supp. 3d 990, 994–95 (D. Ariz. 2014); Huntington Operating Corp. v. Sybonney Express, Inc., Civil Action No. H-08-781, 2009 WL 2423860, at *3 (S.D. Tex. Aug. 3, 2009); Chubb Group of Ins. Cos. v. H.A. Transp. Sys., Inc., 243 F. Supp. 2d 1064, 1068–69 (C.D. Cal. 2002). But the district court cited other federal district court cases in support of its conclusion “that the Carmack Amendment covers claims against interstate freight brokers like Freight Tec.” See, e.g., Ameriswiss Tech., LLC v. Midway Line of Ill., Inc., 888 F. Supp. 2d 197, 205 (D.N.H. 2012); York v. Day Transfer Co., 525 F. Supp. 2d 289, 301 (D.R.I. 2007). Thus, there is a split of authority among federal courts as to whether the Carmack Amendment applies to brokers.

*11 ¶41 “An error is obvious if the law on the area was sufficiently clear or plainly settled.” State v. Larsen, 2005 UT App 201, ¶ 5, 113 P.3d 998 (quotation simplified). Here, based on the divided federal authority, it is not “plainly settled” whether the Carmack Amendment applies to brokers. Therefore, any error in the court’s analysis was far from obvious, and the plain error exception to the preservation rule does not apply to this argument.

¶42 Regarding its claims for negligence, negligent misrepresentation, and breach of fiduciary duty, Chemex argues that the district court’s conclusion that the FAAAA preempted these tort claims was obvious error because “the FAAAA scope and purpose was to curb state laws relating to carrier prices, routes, and services,”13 and here “it is undisputed that [Chemex’s] causes of action are centered on issues surrounding interstate travel and … are no more than tenuously related to any carrier prices, rout[e]s, or services.” But like the question of whether the Carmack Amendment applies to brokers, federal authority is split on whether tort claims sufficiently relate to the price, route, or service of a carrier.

¶43 The court cited several federal court cases in support of its holding that Chemex’s tort claims for negligence, negligent misrepresentation, and breach of fiduciary duty relate to and affect the “price, route, or service … with respect to the transportation of property,” 49 U.S.C. § 14501(c)(1), and are therefore preempted by the FAAAA, see, e.g., Belnick, Inc. v TBB Global Logistics, Inc., 106 F. Supp. 3d 551, 559–62 (M.D. Pa. 2015); Ameriswiss Tech., 888 F. Supp. 2d at 205–08; Chatelaine, Inc. v. Twin Modal, Inc., 737 F. Supp. 2d 638, 641–43 (N.D. Tex 2010). Freight Tec has also cited additional authority supporting this conclusion. See, e.g., Delta Stone Prods. v. Xpertfreight, 304 F. Supp. 3d 1119, 1123 (D. Utah 2018); Yellow Transp., Inc. v. DM Transp. Mgmt. Services, Inc., No. CIV.A.2:06CV1517-LDD, 2006 WL 2871745, at *3 (E.D. Pa. July 13, 2006). Chemex asserts that “many district courts of equal authority have held that negligence claims are not preempted by the FAAAA because holding a broker to a minimum standard of care does not intrude or contradict the Congressional intent animating the FAAAA,” and Chemex provides several examples in support of this assertion. See, e.g., Nyswaner v. C.H. Robinson Worldwide Inc., 353 F. Supp. 3d 892, 895 (D. Ariz. 2019); Complete Coach Works v. Landstar Ranger, Inc., No. CV-10-1383-DSF(OPx), 2011 WL 9206170, at *1–2 (C.D. Cal. Apr. 13, 2011).

¶44 Again, this split in authority renders the question of whether the FAAAA preempts these state tort claims far from “plainly settled,” and therefore any alleged error in the court’s analysis was not obvious. See Larsen, 2005 UT App 201, ¶ 5 (quotation simplified). Accordingly, the plain error exception to the preservation rule does not apply to this argument.

C. Judicial Notice
¶45 Chemex also argues that the court erred in granting summary judgment on Freight Tec’s breach of contract claim because there “is a question of material fact whether the terms and conditions presented by Freight Tec were available at the time Chemex signed” the credit application. Chemex asserts that “Freight Tec’s claim for breach of contract is dependent upon whether Chemex agreed to the [Terms and Conditions]” that the credit application—which Chemex signed in 2013—incorporated by reference and for which it provided a website address. Freight Tec included a copy of the Terms and Conditions in its motion for summary judgment, but Chemex contends that Freight Tec “fail[ed] to establish that the terms and conditions were available to [Chemex] at the time it signed the credit application” because the Terms and Conditions the court relied on were allegedly copyrighted in 2014 and, according to Internet Archive, did not appear on Freight Tec’s website until 2015. Although Chemex acknowledges that “Freight Tec’s facts were undisputed due to the Court’s denial of Chemex’s motion[s] for extension,” it argues that the court should have taken judicial notice that the Terms and Conditions Freight Tec presented were copyrighted and appeared on the website after Chemex signed and submitted the credit application. See supra note 4.

*12 ¶46 Even assuming, without deciding, that the court erred in declining to take judicial notice of those facts, we conclude that the error was harmless because Freight Tec would have nonetheless prevailed on summary judgment. Although Chemex disputes the authenticity of the Terms and Conditions that Freight Tec included in its motion for summary judgment, Chemex’s answer admitted that it signed the credit application. It further admitted “that it entered into an agreement with [Freight Tec] to ship, or arrange[ ] for shipment [of], certain loads for Chemex.” Given that Chemex does not contest that it entered into a contract with Freight Tec and that it was uncontested on summary judgment that Chemex did not compensate Freight Tec for arranging for the shipment of the Jacksonville load, it is unclear how Chemex would have withstood summary judgment even if the court had disregarded the Terms and Conditions. See America West Bank Members, LC v. Utah, 2014 UT 49, ¶ 15, 342 P.3d 224 (“The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.”) (quotation simplified). Indeed, both the credit application and the Terms and Conditions provided for an interest rate of 1.5% per month for any unpaid invoices and stated that Freight Tec would be entitled to collection expenses, including attorney fees and costs. See supra ¶ 5. Furthermore, to the extent that Chemex challenges the court’s grant of summary judgment to Freight Tec on Chemex’s claim for breach of contract, the credit application likewise contained a provision in which Chemex agreed to pursue any claims for late delivery or non-delivery of a load against the motor carrier and not Freight Tec. See supra ¶ 4.

III. Attorney Fees
¶47 Lastly, Chemex challenges the district court’s award to Freight Tec of attorney fees and costs incurred in defending against Chemex’s non-contractual claims.14

¶48 First, Chemex argues that the court erred in concluding that its claims were “inextricably intertwined” with Freight Tec’s claim for breach of contract. Quoting Foote v. Clark, 962 P.2d 52 (Utah 1998), Chemex asserts that “ ‘[t]he language of the contract does not permit assessing fees’ against Chemex for Freight Tec’s successful defense of Chemex’s noncontractual claims brought concerning the [Winter Haven load].” See id. at 56.

¶49 “If provided for by contract, attorney fees are awarded in accordance with the terms of that contract.” Rapoport v. Four Lakes Village Homeowners Ass’n, Inc., 2013 UT App 78, ¶ 22, 300 P.3d 327 (quotation simplified). Furthermore, “when a plaintiff brings multiple claims involving a common core of facts and related legal theories, and prevails on at least some of its claims, it is entitled to compensation for all attorney fees reasonably incurred in the litigation.” Golden Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 35, 241 P.3d 375 (quotation simplified). This rule has been “repeatedly extended … to award attorney fees for counterclaims when the counterclaim was based on related legal theories involving a common core of facts.” Id. (quotation simplified). See Dejavue, Inc. v. U.S. Energy Corp., 1999 UT App 355, ¶ 21, 993 P.2d 222 (affirming the district court’s award of attorney fees to a party for successfully defending against a breach of contract claim and for prevailing on its tort counterclaims that were “based on related legal theories involving a common core of facts” applicable also to the breach of contract claim).

¶50 The relevant provision under the credit application, with our emphasis, is as follows:
It is … agreed that the Applicant shall pay any collection expenses, including, but not limited to, attorneys fees and court costs, that may become necessary to effect collection from [Chemex.]
In concluding that Chemex’s tort claims and Freight Tec’s breach of contract claim were “inextricably intertwined,” the district court stated that although “Chemex’s counterclaims rested on several legal theories[,] … all were asserted to defend against or counter Freight Tec’s breach of contract claim and all involved the same common core of facts.” We agree.

¶51 Chemex’s answer and counterclaim support the court’s conclusions. In bringing its counterclaim against Freight Tec, Chemex acknowledged that its counterclaim and Freight Tec’s breach of contract claim involved a common core of facts when it stated, “This Counterclaim arises out of the same averments, and transactions and occurrences as [Freight Tec’s] Complaint.” And in its answer, referring to the alleged non-delivery of the Winter Haven load—which formed the basis for its counterclaim—Chemex asserted, as an affirmative defense, that “[t]he damages, if any, which were allegedly sustained by [Freight Tec] as a result of the acts complained of in the Complaint were caused in whole or in part or were contributed to by reason of the acts, omissions, negligence, and/or intentional misconduct of [Freight Tec].” Thus, to succeed on its breach of contract claim against Chemex, Freight Tec necessarily needed to defend against Chemex’s claims that were based in tort. Accordingly, Freight Tec’s defense against the counterclaim became “necessary to effect collection from [Chemex]” and was therefore permitted under the plain terms of the credit application.

*13 ¶52 Next, Chemex argues that “[b]ecause the district court did not require Freight Tec to allocate its fees by [compensable and noncompensable] claim, there is insufficient evidence to support the award, and it cannot stand.” See Jensen v. Sawyers, 2005 UT 81, ¶ 132, 130 P.3d 325 (stating that failure to allocate fees between successful claims, unsuccessful claims, and claims to which there is no entitlement to attorney fees “makes it difficult, if not impossible, for the trial court to award the moving party fees because there is insufficient evidence to support the award”). Because we conclude that Freight Tec was entitled to recover attorney fees and costs both in bringing its breach of contract claim and in defending against Chemex’s counterclaim, such an allocation is unnecessary as all claims fall under the same category of compensability. See KB Squared LLC v. Memorial Bldg. LLC, 2019 UT App 61, ¶¶ 33–34, 442 P.3d 1168.

¶53 Finally, again quoting Foote v. Clark, 962 P.2d 52, 56 (Utah 1998), Chemex argues that the court’s award is supported by insufficient findings of fact because “the Court did not consider any of the Cottonwood Mall factors in assessing the reasonableness of the fee award nor did it set forth any other ‘steps of its evaluation.’ ” See Cottonwood Mall Co. v. Sine, 830 P.2d 266, 269 (Utah 1992) (listing “several factors that should be assessed in determining the reasonableness of attorney fees”). In determining the reasonableness of the requested fees, the court stated that it reviewed the invoices for attorney fees attached to the affidavit submitted by counsel for Freight Tec and found that “[t]hey were specific enough to allow the Court to look at what was done in each case” and it concluded that they were “good evidence of the fees that were incurred and why.” Accordingly, because the court’s award of fees was supported by affidavit, and because Chemex did not challenge the reasonableness of any itemized fee or cost Freight Tec presented to the court when given the opportunity, the court did not abuse its discretion in ordering Chemex to pay $21,728 in attorney fees and $658.39 in court costs. Cf. Poulsen v. Frear, 946 P.2d 738, 743 (Utah Ct. App. 1997) (“[F]ees cannot be awarded unless supported by an affidavit and unless appellant has a chance to challenge the reasonableness of the fees[.]”).

IV. Fees on Appeal
¶54 Freight Tec seeks an award of attorney fees incurred on appeal. “When a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Telegraph Tower LLC v. Century Mortgage LLC, 2016 UT App 102, ¶ 52, 376 P.3d 333 (quotation simplified). Accordingly, Freight Tec is entitled to its attorney fees reasonably incurred on appeal, and we remand to the district court to calculate the amount of the award.

CONCLUSION
¶55 The district court acted within its discretion when it denied Chemex’s two motions for an extension to file its opposition to Freight Tec’s motion for summary judgment. Because Chemex did not effectively oppose Freight Tec’s motion in the district court, its challenges to the court’s grant of summary judgment are unpreserved, and we review them only for plain error. And we conclude that the district court did not plainly err. We also determine that any error in the district court’s failing to take judicial notice was harmless. Finally, we affirm the court’s award of attorney fees to Freight Tec. We additionally authorize an award of attorney fees to Freight Tec for attorney fees incurred on appeal and remand to the district court to determine an appropriate amount for such fees.

¶56 Affirmed.

All Citations
— P.3d —-, 2021 WL 3779591, 2021 UT App 92

Footnotes

1
Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

2
“In reviewing a district court’s grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (quotation simplified).

3
Freight Tec also named the consignees of the Jacksonville load and the Birmingham load as defendants in its amended complaint. One consignee never appeared, resulting in entry of default judgment against it, and the district court granted Freight Tec’s later motion to dismiss its claims against the other consignee, with prejudice.

4
After the district court denied both motions for extension but before it entered summary judgment in Freight Tec’s favor, Chemex asked the court to take judicial notice that, according to “Internet Archive, a non-profit digital library that regularly archives internet webpages,” the Terms and Conditions to which Chemex allegedly agreed did not appear on Freight Tec’s website until 2015—approximately two years after it signed and submitted the credit application. The court declined to take the requested judicial notice because “Freight Tec ha[d] provided the Court evidence that the URL for the Terms and Conditions existed as far back as 2013” and because, “on its website, Internet Archive does not guarantee the accuracy or authenticity of the information” it provides.

5
It does not appear that the district court addressed Chemex’s failure to pay the $1,150 invoice on the Birmingham load, but this issue is not before us on appeal.

6
Freight Tec argues that “Utah courts have moved away from the liberal application of Rule 3(d).” In support of this assertion, Freight Tec cites Pulham v. Kirsling, 2019 UT 18, 443 P.3d 1217, and Wilson v. Sanders, 2019 UT App 126, 447 P.3d 1240. But these cases involved exceptions to the general rule that “when an appeal is taken from a final judgment, there is no requirement that the notice designate intermediate orders which are to be raised as issues on appeal.” See Wilson, 2019 UT App 126, ¶ 28 (quotation simplified). Specifically, in Pulham, our Supreme Court held that as the appellant identified only a portion of the final order instead of listing the order as a whole, the appellant could not raise issues unrelated to the identified portions of the order because doing so would “disregard the plain language of the notice of appeal and would run contrary to our long-held conviction that the notice of appeal must provide the opposing party with notice of what is being appealed.” 2019 UT 18, ¶¶ 24–31. And in Wilson, this court held that because the district court denied the relevant motion more than one week after entry of final judgment, the motion was not subsumed in the final judgment and therefore had to be specifically identified in the notice of appeal to confer appellate jurisdiction. 2019 UT App 126, ¶ 29. Neither of these exceptions applies to the case before us.
Freight Tec also cites State of Utah v. Watson Pharmaceuticals Inc., 2019 UT App 31, 440 P.3d 727, in support of its contention that rule 3(d) is now more restrictively applied. But Watson Pharmaceuticals is inapposite because it did not address this jurisdictional issue. It merely noted, in a footnote, that the appellant did not appeal the district court’s denial of its motion for leave to amend its complaint—filed three months after the district court dismissed the case with prejudice—because the appellant’s notice of appeal had not identified the order and, indeed, the appellant twice confirmed during oral argument that it was not appealing that denial. See id. ¶¶ 9, 22 n.8.

7
In defining “good cause” and “excusable neglect,” we look to the analogous context of rule 4(e) of the Utah Rules of Appellate Procedure. Compare Utah R. App. P. 4(e) (providing that prior to the expiration of the deadline to file a notice of appeal, “[t]he trial court, upon a showing of good cause, may extend the time for filing a notice of appeal upon motion,” and that within 30 days after the deadline to file a notice of appeal, “[t]he trial court, upon a showing of good cause or excusable neglect, may extend the time for filing a notice of appeal upon motion”), with Utah R. Civ. P. 6(b)(1) (providing that “the court may, for good cause, extend” a deadline if done prior to the expiration of the deadline and, if done after expiration of the deadline, “the court may [do so] for good cause” and upon a showing of “excusable neglect”). Cf. Jones v. Layton/Okland, 2009 UT 39, ¶ 18, 214 P.3d 859 (applying the standard for excusable neglect as articulated under rule 4(e) of the Utah Rules of Appellate Procedure to rule 60(b) of the Utah Rules of Civil Procedure). We likewise turn to interpretations of the similarly worded rule 6(b)(1) of the Federal Rules of Civil Procedure for guidance. See Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 40 n.8, 297 P.3d 599 (“Interpretations of the Federal Rules of Civil Procedure are persuasive where, as here, the Utah Rules of Civil Procedure are substantially similar to the federal rules.”) (quotation simplified).

8
Chemex additionally argues that “to the extent the district court relied on counsel’s alleged carelessness to deny the motion, such a consideration alone constitutes an abuse of discretion.” In support, Chemex cites GNB, Inc. v. Tropex, Inc., No. 87-1637, 1988 WL 60618 (4th Cir. June 3, 1988) (per curiam). In that case, the defendants failed to timely oppose a motion for summary judgment. Id. at *1. In denying the defendants’ motion for an extension, the district court found that their counsel was inexcusably negligent but made no finding as to whether the defendants themselves were negligent. Id. at *2. The Fourth Circuit Court of Appeals reversed, in part because of the lack of findings that the “defendants, and not their counsel, were responsible for the failure to file the opposition to the summary judgment motion.” Id.
As an initial matter, GNB is inapplicable to the denial of the First Motion because the defendants in GNB filed their motion for extension after the deadline to oppose the summary judgment motion had expired, thus—as demonstrated by the court’s discussion of negligence—necessarily implicating the federal equivalent of Utah rule 6(b)(1)(B) in effect at that time and not the federal equivalent of rule 6(b)(1)(A), which deals with good cause. And in any event, in Utah a court does not necessarily abuse its discretion by denying a motion for extension in cases where the fault for the delay rested solely with a party’s attorney. Instead, “where a party or a party’s attorney was concededly neglectful, the court must determine whether that neglect should, on balance, be excused.” Reisbeck v. HCA Health Services of Utah, Inc., 2000 UT 48, ¶ 15, 2 P.3d 447 (emphasis added). See generally Menzies v. Galetka, 2006 UT 81, ¶ 76, 150 P.3d 480 (“Under the American representative system of litigation, a party voluntarily chooses her attorney and therefore is generally bound by the acts or omissions of his or her attorney.”).

9
For example, depending on the facts of a case, each standard may implicate a showing of diligence and of circumstances beyond the moving party’s control. See supra ¶¶ 26–27.

10
Chemex also argues that “the court abused its discretion when it took umbrage [at] Chemex seeking relief under Rule 6(b) rather than Rule 56(d).” See Utah R. Civ. P. 56(d) (“If a nonmoving party shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to summary judgment], the court may: (1) defer considering the motion or deny it without prejudice; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”). It argues that because a motion brought under rule 56(d) “is not among those specifically excluded from Rule 6(b), the court had authority to extend the time for [Chemex] to file its summary judgment opposition.” See Utah R. Civ. P. 6(b)(2) (“A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d) and (e), and 60(c).”). Because we have already determined that the district court did not abuse its discretion in denying the First Motion and the Second Motion for lack of good cause, we need not address this argument further.

11
“Our supreme court has taken pains to point out that it has not endorsed the ongoing viability of plain error review in civil cases, nor has it repudiated it. In the meantime, until our supreme court answers this question, Utah appellate courts have sometimes applied plain error review in civil cases in which neither party challenges its application, and we do so here without opining on the propriety of such review.” Tronson v. Eagar, 2019 UT App 212, ¶ 18 n.7, 457 P.3d 407 (quotation simplified).

12
“In actions seeking damages for the loss of property shipped in interstate commerce by a common carrier under a receipt or bill of lading, the Carmack Amendment is the shipper’s sole remedy.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 382 (5th Cir. 1998). See 49 U.S.C. § 14706(a)(1).

13
The relevant provision of the FAAAA provides,
[A] State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.
49 U.S.C. § 14501(c)(1).

14
Chemex does not challenge the district court’s award of attorney fees to Freight Tec for fees incurred in defending against Chemex’s counterclaim for breach of contract.

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