Helvetia Swiss Ins. Co. v. Jones
United States District Court for the Middle District of Pennsylvania
September 19, 2018, Decided; September 19, 2018, Filed
CIVIL ACTION NO. 3:16-1447

Reporter
2018 U.S. Dist. LEXIS 160079 *; 2018 WL 4492814
HELVETIA SWISS INSURANCE COMPANY, as a subrogee of HAEUSLER AG, DUGGINGEN, Plaintiff v KEVIN T. JONES and MIDWEST TRANSPORTATION, LLC, Defendants/Third Party Plaintiffs v JAMES D. FRANZMAN and TRANS AMERICAN TRUCKING SERVICE, INC., Third Party Defendants

MEMORANDUM
Presently before the court is a motion for summary [*2] judgment filed on September 29, 2017 by third party defendants, Trans American Trucking Service, Inc. (“TAT”), and James D. Franzman (“Trans American” defendants or “Franzman/TAT”). (Doc. 34). This motion concerns a dispute over an insurance claim resulting from a motor vehicle accident which caused the total loss of commercial cargo owned by Haeusler AG, Duggingen (“Haeusler”), the subrogor of the plaintiff, Helvetia Swiss Insurance Company (“Helvetia”). The commercial cargo was being transported by a tractor trailer driven by Franzman on behalf of TAT. Before the instant action was commenced, Helvetia and TAT settled any claims Helvetia had against TAT and, Helvetia received a payment for any damaged or lost freight which was set forth in the incorporated tariff. Helvetia then filed the present action against original defendants Kelvin T. Jones and America Midwest Transportation, LLC (“original defendants” or “Jones/Midwest”). Helvetia claims that Jones/Midwest are responsible for the accident which destroyed Haeusler’s commercial cargo. Jones/Midwest then filed a third party complaint against Franzman/TAT, pursuant to Fed.R.Civ.P. 14, alleging claims of negligence. Jones/Midwest also assert claims [*3] for indemnification, contribution, and apportionment against Franzman/TAT. Franzman/TAT now move for summary judgment and argue that the state law claims brought against them by Jones/Midwest are barred since they are preempted by the Carmack Amendment of the Interstate Commerce Act, 49 U.S.C. §14706 (“Carmack Amendment”).
For the reasons discussed below, Franzman/TAT’s motion for summary judgment will be DENIED IN ITS ENTIRETY.

I. BACKGROUND
On October 28, 2015, a motor vehicle accident occurred resulting in the total loss of commercial cargo owned by Haeusler. The commercial cargo was being transported by a tractor trailer driven by Franzman on behalf of TAT. The cargo was subject to a Bill of Lading and an incorporated tariff. Helvetia settled its claims with TAT.
On July 13, 2016, Helvetia filed a complaint against Jones/Midwest alleging that they caused the accident which destroyed Haeusler’s commercial cargo. (Doc. 1). Helvetia asserted claims of negligence and vicarious liability against Jones/Midwest.
On October 28, 2016, Jones/Midwest filed a third party complaint (“TPC”) against Franzman/TAT, pursuant to Fed.R.Civ.P. 14, raising claims for negligence against Franzman and TAT (Counts I & II). Also, in Count I, Jones/Midwest raise claims for indemnification, and/or contribution, [*4] and/or apportionment against Franzman and TAT, and in Count II, they raise claims for indemnification, and/or contribution, and/or apportionment against TAT.1 (Doc. 12). Jones/Midwest did not raise any statutory claims or claims under any federal law against Franzman/TAT.
Following discovery, Franzman/TAT filed a motion for summary judgment with respect to Jones/Midwest’s TPC on September 29, 2017. (Doc. 34). Franzman/TAT’s motion has been fully briefed, exhibits have been submitted, a statement of material facts was filed and Jones/Midwest responded to it.2 Franzman/TAT also filed a request for oral argument, (Doc. 44), which is denied by the court since it finds the submissions of the parties sufficiently explain the relevant issues. In fact, the court allowed the parties to file supplemental briefs in this case and their positions on the issues have been clearly stated.

II. MATERIAL FACTS
On October 28, 2015, Jones was driving a tractor trailer owned by America Midwest Transportation, LLC. Jones was traveling west on U.S. Interstate Route 80 (“I-80”) in Carbon County, PA. Franzman was also traveling west on 1-80 behind Jones, and he was driving a tractor trailer owned by TAT. Franzman [*5] was employed by TAT3 and he was transporting a piece of commercial machinery, namely, a Bending Machine, which was owned by Haeusler. The destination for the Bending Machine was Chicago, IL.
Jones lost control of his tractor trailer and the trailer overturned and came to a stop blocking both lanes of traffic on I-80 west. Thereafter, Franzman came around a curve on I-80 and he approached the blocked lanes of traffic caused by Jones’ trailer. Franzman braked suddenly to avoid hitting the stopped traffic and the overturned tractor trailer on the highway which resulted in the Bending Machine he was transporting to fall from his flatbed trailer. The Bending Machine sustained significant damage from the fall.
Jones/Midwest allege in their TPC that Franzman was speeding and driving too fast for conditions in heavy rain and that he failed to keep a proper lookout to see that vehicles were stopped ahead of him in both lanes on I-80 west. Jones/Midwest also allege that Franzman lost control of his truck due to his own negligence which caused the Bending Machine to fall off his truck resulting in the damages for which Helvetia seeks recovery in its complaint against them. The Bending Machine was [*6] later determined to be a total loss due to the damage it sustained in the accident.
The parties dispute, however, whether the Bending Machine was being shipped by TAT pursuant to a Bill of Lading, as Franzman/TAT claim, (Doc. 35-1), or whether it was shipped pursuant to a Negotiable Multimodal Transport Bill of Lading (“NMTBL”), as Jones/Midwest claim. Franzman/TAT argue that because the Bending Machine was shipped pursuant to a Bill of Lading, any freight claims made, are covered by the Bill of Lading, which incorporated a tariff setting forth the calculation of payment for a claim for damaged or lost freight. However, the evidence submitted by Jones/Midwest shows that the Bending Machine shipment originated overseas in Switzerland and that it was shipped to the United States pursuant to a single through NMTBL, not a Bill of Lading. (Doc. 37, Ex. A).
After the accident, TAT, through its insurer, The Hartford, settled with Helvetia, (which was Haeusler’s insurance provider), for $133,930.80 and a Release was executed for any claim or demand arising from the accident. (Doc. 35-3). TAT contends that the amount contained in the settlement Release between it and Helvetia was “based upon [*7] the agreed-to loss rate for freight claims which is referenced on the Bill of Lading and the related Tariff.” However, Jones/Midwest contend that the Release makes no reference to the calculation of damages or any tariff, nor does the Release include Franzman. However, the Release did include TAT as well as its agents, servants and employees from any claim by Helvetia. (Doc. 35-3).
This court has diversity jurisdiction over this case pursuant to 28 U.S.C. §1332.

III. STANDARD OF REVIEW
Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Aetna Casualty & Sur. Co. v. Ericksen, 903 F. Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (holding that a court may not weigh the evidence [*8] or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party can discharge the burden by showing that “on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to material facts,” but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). However, if the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant’s] case, and on which [the non-movant] will bear the burden of proof at trial,” Rule 56 mandates the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

IV. DISCUSSION
Jones/Midwest’s TPC is filed against Franzman/TAT [*9] pursuant to Federal Rule of Civil Procedure 14, which, provides, “[a] defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.” Fed.R.Civ.P. 14(a)(1). To assert a claim under Rule 14(a)(1), the third-party liability must be entirely dependant on the impleader’s liability to the original plaintiff. As a court in this district succinctly stated:
The crucial characteristic of a Rule 14 claim is that defendant is attempting to transfer to the third-party defendant the liability asserted against him by the original plaintiff. Third-party liability must depend on the outcome of the main claim and derive from defendant’s liability to the plaintiff in the main action so that, if the third-party plaintiff is found liable, the third-party defendant will be liable to the third-party plaintiff under a theory of indemnification, contribution, or some other theory of derivative liability recognized by the relevant substantive law. Rocuba v. Mackrell, 10-CV-1465, 2011 U.S. Dist. LEXIS 134578, 2011 WL 5869787, *1 (M.D.Pa. 2011).
“Where … state substantive law recognizes a right of contribution and/or indemnity, impleader under Rule 14 is the proper procedure by which to assert such claims.” EQT Production Company v. Terra Services, LLC, 179 F.Supp.3d 486, 492-93 (W.D.Pa. 2016) (citations omitted). “As Rule 14 only provides the procedural [*10] mechanism for filing a third-party complaint, a party’s substantive rights to contribution and common law indemnity are determined by state law.” Id. at 493 (citation omitted). “In general, whether a particular third-party defendant may be impleaded is a question which ‘rests with the sound discretion of the trial court.'” Id. (citations omitted).
First, at issue is whether the Carmack Amendment preempts the state law negligence claims brought against Franzman/TAT by Jones/Midwest. TAT argues that the state law claims are barred since the Carmack Amendment is the exclusive cause of action for interstate shipping contract and tort claims alleging loss or damage to property. Jones/Midwest contend that the Carmack Amendment is only applicable to claims between interstate carriers and cargo owners that have a contract to ship goods. However, Jones/Midwest state that they did not have any contract with Trans American and therefore the Amendment does not apply to its claims. They also state that since the shipment of the Bending Machine originated overseas pursuant to a NMTBL, the Carmack Amendment is not applicable.
There is no dispute that Jones/Midwest’s claims against Franzman/TAT are based on state common law negligence theories and they seek money damages relating to the [*11] damage to the cargo involved in the accident. There is also no dispute that Jones/Midwest and Franzman/TAT were not parties to any contract with each other.
Franzman/TAT also argue that they are entitled to summary judgment with respect to Jones/Midwest’s claims for indemnification since there is no legal relation between them. In their TPC, Jones/Midwest assert that if it is determined that Helvetia can recover damages against either or both of them, then they seek indemnification from Franzman/TAT. Jones/Midwest also allege in their TPC that Franzman/TAT owed a duty to exercise reasonable care in operating TAT’s tractor trailer to them and others using the roadway.
Further, Franzman/TAT state that Jones/Midwest’s claims for indemnification fail since Jones/Midwest must be found actively negligent and liable to Helvetia to make out their claim for indemnification. Thus, they contend that since Jones/Midwest base their indemnification claims upon a finding of their own contributing negligence, these claims fail.
Franzman/TAT additionally state that Jones/Midwest’s claims for contribution are limited under the Carmack Amendment and that “the maximum amount of damages that could be attributable to [them] has [*12] already been paid via an application of the Bill of Lading and Tariff pursuant to the [Amendment].” TAT states that it limited its liability to Haeusler based on the tariff as allowed by the Carmack Amendment and, that “the total amount that it could therefore be found liable for, in relation to the damaged commercial cargo, has already been paid to plaintiff.” Thus, Franzman/TAT contend that if the court allows Jones/Midwest to proceed on the claims for contribution and indemnification against them, the court should limit their total liability to the amount paid to Helvetia.
Jones/Midwest respond by stating that the Release makes no reference to the calculation of damages or any tariff, and that the Release does not include Franzman. They point out that Franzman is not a party to any contract or bill of lading regarding the shipment of the Bending Machine. Thus, Jones/Midwest state that even if the Carmack Amendment is applicable, Franzman’s liability is totally outside of the Amendment’s purview since the only claims available against him are the common law tort claims.
Jones/Midwest also reassert their contention that the Carmack Amendment is not applicable to their claims against either Franzman or TAT since they did not have a contract [*13] with Franzman or TAT and since the only claims available to them are common law negligence claims. They further reiterate that since the shipment of the Bending Machine originated overseas under a single through bill of lading, the Carmack Amendment does not apply.
The three issues presented are: whether original defendants’ negligence claims against Trans American defendants are barred by the Carmack Amendment; whether original defendants’ claims for indemnification against Trans American defendants should be dismissed; and whether original defendants’ claims for contribution against Trans American defendants should be limited by the Carmack Amendment or by the NMTBL and the incorporated UNCTAD/ICC Rules.

Carmack Amendment
“[T]he Carmack Amendment became applicable to motor carriers by the Motor Carrier Act of 1935.” Certain Underwriters at Interest at Lloyds of London v. United Parcel Service of America, Inc., 762 F.3d 332, 335 (3d Cir. 2014). The Third Circuit stated:
The general rule is that an interstate carrier is strictly liable for damages up to “the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) [certain intermediary carriers].” 49 U.S.C. §14706(a)(1). A shipper and carrier can agree to limit the carrier’s liability “to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper [*14] if that value would be reasonable under the circumstances” in order for the shipper to obtain a reduced rate. Id. §14706(c)(1)(A). Shippers may bring a federal private cause of action directly under the Carmack Amendment against a carrier for damages. Id. §14706(d).
Thus, while the Carmack Amendment aided shippers by making “carriers strictly liable for damage to or loss of goods,” “carriers obtained a uniform, nationwide scheme of liability, with damages limited to actual loss—or less if the shipper and carrier could agree to a lower declared value of the shipment.” Id.
Additionally, the Carmack Amendment preempts state laws. “[T]he Supreme Court has consistently held that the Carmack Amendment has completely occupied the field of interstate shipping.” Id. In fact, “[a]lmost every detail of [interstate shipping] is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it.” Id. (citation omitted). “The [Supreme] Court has consistently described the Amendment’s preemptive force as exceedingly broad—broad enough to embrace ‘all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation.'” Id. (citation omitted). As such, “[s]tate [*15] laws are preempted regardless of whether they contradict or supplement Carmack relief.” Id. (citation omitted).
“The Courts of Appeals have also unanimously held that the Carmack Amendment ‘preempts all state or common law remedies available to a shipper against a carrier for loss or damage to interstate shipments.'” Id. at 336 (citation omitted). Court of Appeals “have dismissed state and common law claims for breach of contract, negligence, conversion and every other action for loss of or injury to a shipment of goods”, and several circuits “have consistently held that the Carmack Amendment is the ‘exclusive cause of action for interstate-shipping contract [and tort] claims alleging loss or damage to property.'” Id. (citation omitted). Although there is “a peripheral set of state and common law causes of action that are not preempted by the Carmack Amendment”, such as claims that do not “enlarge or limit the responsibilities of the carrier for loss of property”, claims that seek to recover for the loss of the shipper’s goods are “at the heart of the Carmack preemption.” Id. at 336 n. 4. Thus, the Third Circuit has held “that state law breach of contract and negligence claims against a carrier for loss of or damage to goods are preempted.” Id. (citation omitted). [*16]
Despite the apparent broad read of the Carmack Amendment, it is not applicable to Jones/Midwest’s claims for indemnification and contribution against Franzman/TAT since it “preempts all state law causes of action [by shippers] alleging liability for lost or damaged property against interstate carriers.” Alpine Fresh, Inc. v. Jala Trucking Corp., 181 F.Supp.3d 250, 255-56 (D.N.J. 2016) (citation omitted) (emphasis added). As such, even though the Carmack Amendment seemingly would have applied to any claims that the plaintiff, as the shipper, raised directly against TAT, its carrier, it is not applicable to the Jones/Midwest’s claims for indemnification and contribution against Franzman/TAT since Jones/Midwest are not a shipper seeking to recover for a loss against its interstate carrier. See Alpine Fresh, 181 F.Supp.3d at 255 (“If the company acted as a carrier, the claims [by the shipper] were “barred by the implied preemptive effect of the Carmack Amendment ….”) (citation omitted). Simply stated, the claims raised by Jones/Midwest against Franzman/TAT in their TPC do not involve any claim between a shipper and its interstate carrier.
Next, the court considers whether the Carmack Amendment applies to the Jones/Midwest’s common law claims for negligence against Franzman/TAT in the TPC. Jones/Midwest state that “[t]he Carmack Amendment does not apply to a shipment originating overseas [*17] under a single through bill of lading.” They cite to Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 130 S. Ct. 2433, 177 L. Ed. 2d 424 (2010), as well as Royal & Sun Alliance Insurance, PLC v. Ocean World Lines. Inc., 612 F. 3d 138 (2d Cir. 2010), to support their contention.
In our case there was an intermodal shipment of the Bending Machine overseas via a single through bill of lading. Based on the Kawasaki and Royal & Sun cases, the Carmack Amendment does not apply to the shipment of this Bending Machine which undisputedly originated overseas under a single through bill of lading. See also CNA Ins. Co. v. Hyundai Merchant Marine Co., Ltd., 747 F.3d 339, 366 (6th Cir. 2014) (Sixth Circuit stated that “the rule of Kawasaki appears to be that Carmack does not apply to the overseas shipment of goods—import or export—shipped under a single through bill of lading.”). Specifically, in CNA, id. at 370, the Sixth Circuit held that, based on “the post-Kawasaki federal and state court decisions,” “the Carmack Amendment does not apply to the road or rail leg of an intermodal overseas export shipped under a single through bill of lading.”
Since there was a single through bill of lading, i.e., the NMTBL, and it covered the entire course of the journey of the Bending Machine to Chicago, the Carmack Amendment does not apply. (Doc. 37, Ex. A).
With respect to damages, Franzman/TAT argue that Jones/Midwest’s claims for contribution against them should be limited by the Carmack Amendment since the maximum amount of damages for which they could be held liable has already been [*18] paid by an application of the Bill of Lading and Tariff. “Under the Carmack Amendment, the liability imposed is for the “actual loss or injury to the property.” Penske Logistics, Inc. v. KLLM, Inc., 285 F.Supp.2d 468, 473 (D.N.J. 2003) (citing 49 U.S.C. §14706(a)). As such, Franzman/TAT claim that their liability must be limited by operation of the Carmack Amendment to the amount TAT paid pursuant to its Bill of Lading.
However, since the Carmack Amendment is not applicable to Jones/Midwest’s claims against Franzman/TAT, TAT cannot rely upon the Carmack Amendment to limit its liability to Jones/Midwest.
In the alternative, Franzman/TAT argue that even if the Carmack Amendment does not apply, the terms agreed to by the parties in TAT’s Bill of Lading, (Doc. 35, Ex. A), which is a contract, govern their obligations and liabilities. They state that in this case, the terms include an agreed-to provision setting forth the maximum damages that TAT would pay in the event of a freight claim, and that payment was made by TAT to Helvetia and a corresponding Release was executed.
Franzman/TAT’s evidence indicates that the Bending Machine arrived from Antwerp, via overseas shipment, to New Jersey. TAT was retained by the broker, Jagro Customs Brokers, Inc., to transport the machine to Chicago and a Bill of Lading was issued by TAT. (Doc. 35, Ex. A).
TAT, (Doc. 39 at 6), then explains as [*19] follows:
In the event of any freight claims, the document – which the Trans American Defendants maintain is a separate bill of lading – issued by Trans American Trucking Service incorporated a tariff which set forth the calculation of payment for any claim for damaged or lost freight. [Doc. 35, Exs. A & B]. This freight loss rate provided that claims would be paid at a rate of $1.35 per pound. As the total weight of the cargo that was lost due to the accident was 99,208 pounds, a claim for a total loss based upon the agreed-to rate would equal $133,930.80. Pursuant to this agreed-to freight-loss rate, [TAT], with its insurance provider, paid $133,930.80 in exchange for a full and final release of any claim or demand arising from the incident. [Doc. 35, Ex. C].
Thus, Franzman/TAT state that even if “the Carmack Amendment does not apply, Kawasaki clearly requires that the terms agreed-to by parties in shipping contracts control”, and that “the facts clearly demonstrate that the [their] total liability has been limited by the agreed-to terms.”
The October 10, 2015 Multimodal Transport Bill of Lading indicated that it was “[i]ssued subject to UNCTAD/ICC Rules for Multimodal Transport Documents (ICC Publication [*20] 481).”4 Franzman/TAT state that if this Bill of Lading applies, “then the ICC rules incorporated into the Oct.10 Bill of Lading apply”, and that these rules “provide that any multimodal transport operation (“MTO”) and any of its servants, agents, or other person whose services the MTO has used in order to perform any portion of the multimodal transport contract can limit its liability.” (Doc. 39 at 7) (citing UNCTAD/ICC Rules 2.2, 12, 6). They state that based on UNCTAD/ICC Rule 6, their “liability was separately successfully limited by the agreed-to freight calculation.” Trans American defendants argue that even if the NMTBL was the sole title document involved in the shipment, as the court has found it was, they are still entitled to a limitation of their liability pursuant to its contractual terms.
In Sompo, 891 F.Supp.2d at 496, the court discussed a mulitmodal bill of lading when the goods are largely shipped by sea, like the one in the present case, and stated:
A multi-modal bill of lading requiring “substantial carriage of goods by sea” is a maritime contract. See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 27, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (“[S]o long as a bill of lading requires substantial carriage of goods by sea, … it is a maritime contract. Its character as a maritime contract is not defeated [*21] simply because it also provides for some land carriage.”). Federal law controls the interpretation of maritime contracts when “the dispute is not inherently local.” Id. at 22-23, 125 S.Ct. 385.
Generally, “contracts for carriage of goods by sea must be construed like any other contracts: by their terms and consistent with the intent of the parties.” Id. at 31, 125 S.Ct. 385. Potential ambiguities should be interpreted to give “reasonable and effective meaning to all terms of a contract” and to avoid “leav[ing] a portion of the writing useless or inexplicable.” Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 558 (2d Cir. 2000).
Franzman/TAT state that since “the UNCTAD Rules are contractual in nature and provide for the limitation of liability for the shipper and its agents, any clause limiting liability must be given effect under contract precepts.” Franzman/TAT then state in their supplemental brief, (Doc. 42), that since the parties to the shipment incorporated contractual rules which provided for the limitation of liability of the carriers involved in the shipment of the Bending Machine, their “liability exposure is limited to the amount paid to Plaintiff via Release, which was based on an agreed-to lost freight calculation included within the shipment documents.” They argue that this clause “must [*22] be enforced and summary judgment should be granted as to the amount of liability that could be attributed to the Trans American Defendants for claims related to the lost subject cargo.”
Franzman/TAT, (Id. at 5-6), explain as follows:
The UNCTAD Rules state that if reference by way of incorporation is made, then the rules apply irrespective of whether there is a multimodal transport contract involving one or several modes of transport or whether a specific document has been issued or not. (UNCTAD Rules 1.1). The Rules define multimodal transport contract as any arrangement where a single contract governs the carriage of goods by at least two different modes of transport. (UNCTAD Rules 2.1). A multimodal transport operator (“MTO”) is any person who concludes a multimodal transport contract and assumes responsibility for the performance thereof as a carrier. (UNCTAD Rules 2.2). Within the rules, a carrier is defined as any person who “actually performs or undertakes to perform the carriage [of goods], whether he is identical with the multimodal transport operator or not.” (UNCTAD Rules 2.3). Here, Trans American Trucking Service, Inc. was a carrier working on behalf of Jagro Customs Broker & International Freight Forwarders, which [*23] acted as the MTO within the meaning of the Multimodal Bill of Lading and the incorporated UNCTAD Rules. [Doc. 37, Ex. A].
The UNCTAD Rules further provide for the limitation of liability in Article 6. Article 6.1 provides that, if the value of the goods is not declared and listed on a multimodal transport document, the parties can limit the liability of the MTO provided that its liability does not exceed a calculation set forth in Rule 6.1 (UNCTAD Rule 6.1). Finally, Rule 11 provides that the UNCTAD Rules apply to all claims relating to the performance of the multimodal transport contract, whether the claim be founded in contract or tort. (UNCTAD Rule 11). The applicability of the UNCTAD Rules as described here is extended from the MTO to any of its servants, agents, or other person or entity whose services the MTO has used in order to perform any portion of the transport contract. (UNCTAD Rule 12).
Franzman/TAT, (Doc. 42 at 9), explain that “[TAT] was retained by Jagro, the MTO within the meaning of the UNCTAD Rules incorporated into the Oct. 10 [NMTBL], and is therefore entitled to the same limitation of liability afforded Jagro under the rules.” They argue that the Supreme Court in Kawasaki, 561 U.S. at 109-11, recognized the principle that the [*24] contractual terms agreed-to by the parties (in that case, the forum selection clause negotiated between the cargo owner and intermediary), govern their obligations and liabilities.
Jones/Midwest argue in their supplemental brief, (Doc. 43), that while Franzman/TAT reference the UNCTAD Rules and argue that they are contractual, there is simply no contract between them and Franzman/TAT in this case and their claims are only based on negligence. Jones/Midwest contend that there were no agreed-to terms in any shipping contract between them and Franzman/TAT that would serve to limit their claims against Franzman/TAT in this case.
The court agrees with Jones/Midwest and finds that UNCTAD Rules do not apply to Jones/Midwest’s negligence claims against Franzman/TAT. No doubt that the Multimodal Bill of Lading is a maritime contract, see Sompo, 891 F.Supp.2d at 496, and it clearly incorporated the UNCTAD Rules. Based on ordinary contract interpretation, the court looks to the written language of the NMTBL to determine the intent of the parties since the provision subjected it to the UNCTAD Rules is unambiguous. While the court agrees with Franzman/TAT that based on these Rules, TAT’s liability was limited by the Bill of [*25] Lading TAT issued to Jagro Inc., (Doc. 35-1), when it picked up the Bending Machine at the port to transport it by truck to Chicago, this limit applied only to the parties of the NMTBL. There is no dispute that Jones/Midwest are not parties to the NMTBL. Nor is there any dispute that no contract existed between Jones/Midwest and Franzman/TAT. Thus, there is simply no privity of contract between Jones/Midwest and Franzman/TAT and the limit on TAT’s liability contained in the NMTBL does not restrict the maximum amount of damages that TAT would have to pay Jones/Midwest if they prevail on their claims against Franzman/TAT.
As such, the court finds that Franzman/TAT’s liability in this case has not been limited by the UNCTAD Rules. Thus, Franzman/TAT are not entitled to summary judgment as to Jones/Midwest’s claims against them for an amount in excess of the agreed-to freight loss rate contained in TAT’s Bill of Lading, (Doc. 35-1), which TAT paid pursuant to the Release it entered into with Helvetia.
Therefore, Franzman/TAT’s motion for summary judgment to limit Jones/Midwest’s claims for contribution to the agreed-to freight loss rate contained in TAT’s Bill of Lading which they paid to [*26] Helvetia pursuant to the Release will be denied.
Finally, Franzman/TAT argue that Jones/Midwest cannot seek indemnification from them since Jones/Midwest are guilty of independent acts of negligence that are also the cause of the accident at issue. They contend that Jones/Midwest’s claims for indemnification are based upon a finding of their own contributing negligence in the accident at issue and that Jones/Midwest seek indemnification from them if they are found liable to Helvetia. Jones/Midwest maintain that since Jones/Midwest do not identify any evidence that supports “any finding of common law indemnification that is not predicated upon an initial finding of their own negligence”, they are entitled to summary judgment on these claims.
Since the court has diversity jurisdiction over this case, it applies Pennsylvania’s substantive law. See Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). In Rich v. Brandywine Insurance Advisors, LLC, 2017 U.S. Dist. LEXIS 34404, 2017 WL 961002, *3 (E.D.Pa. March 9, 2017), the court discussed a claim for indemnification under Pennsylvania law and stated:
“Under Pennsylvania law, indemnity is available only from those who are primarily liable to those who are merely secondarily or vicariously liable.” In re One Meridian Plaza Fire Litigation, 820 F. Supp. 1492, 1496 (E.D. Pa. 1993). “Indemnity, if applicable, would shift the entire liability for plaintiff’s loss from a third-party plaintiff [*27] to third-party defendant.” Id. Indemnification is a right “which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.” TVSM Inc. v. Alexander & Alexander, Inc., 583 F. Supp. 1089, 1091 (E.D. Pa. 1984) (emphasis added) (citing Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (Pa. 1951)). “Indemnity is a narrow form of relief extended in limited circumstances. Liability will not be shifted simply because another party bears some fault.” Merrill Lynch, et al. v. Staiman, 771 F. Supp. 102, 105 (E.D. Pa. Aug. 15, 1991).
Additionally, “[t]he relevant question, with respect to indemnity, is not who bears ‘primary responsibility,’ but rather ‘whether the party seeking indemnity … had any part in causing the injury.'” Id. (citation omitted). Common law indemnity “is a fault-shifting mechanism that comes into play when a defendant held liable by operation of law seeks to recover from a defendant whose conduct actually caused the loss”, and “[it] is appropriate when a defendant’s liability arises not out of its own conduct, but out of a relationship that legally compels the defendant to pay for the act or omission of a third party.” EQT Production Company, 179 F.Supp.3d at 493 (internal citations omitted).
In its complaint against Jones/Midwest, Helvetia alleges that Jones/Midwest [*28] were negligent and caused the damage to its Bending Machine. As such, Franzman/TAT essentially argue that “indemnity is not available where, as here, the third-party plaintiff [i.e., Jones/Midwest] had some ‘active fault’ in the damage done to the injured party.” Rich, 2017 U.S. Dist. LEXIS 34404, 2017 WL 961002, *3 (citing McCabe, 77 A.2d at 370).
With respect to Jones/Midwest’s claims for indemnification against Franzman/TAT, the court cannot determine if these claims are “founded upon at least a partial finding of [Jones/Midwest’s] own negligence”, as TAT contends, since the jury will have to decide if Jones/Midwest were negligent to any degree in this case. Jones/Midwest allege in their TPC that when the traffic was stopped on I-80, the negligence of Franzman caused him to lose control and caused the Bending Machine to fall off the back of his trailer. It is for the jury to decide if Franzman was in fact negligent and, if so, whether his negligence was the sole cause of the damage to the Machine. However, it is also for the jury to decide if Jones’ alleged negligence was the cause of the traffic stoppage on I-80 in the first place as Helvetia avers in its complaint, and whether Jones’ conduct then caused the damage to the Machine. Thus, the jury will have [*29] to decide if Jones’ alleged negligence caused his disabled vehicle to block traffic on the highway and if his alleged conduct caused Franzman to quickly apply his brakes and lose control of his vehicle causing the Bending Machine to fall from the trailer. The jury will also have to decide if Franzman’s alleged conduct in driving too fast and not leaving a safe distance with vehicles ahead of him was the actual cause of the Machine to fall off his trailer.
Therefore, the court will deny Franzman/TAT’s motion for summary judgment with respect to Jones/Midwest’s claims for indemnification in the TPC.

V. CONCLUSION
For the reasons discussed herein, Franzman/TAT’s motion for summary judgment, (Doc. 34), is DENIED IN ITS ENTIRETY. Specifically, the motion is DENIED with respect to Jones/Midwest’s claims for indemnification in their TPC. The motion is also DENIED with respect to Jones/Midwest’s claims for contribution against Franzman/TAT in their TPC. Further, Franzman/TAT’s request for oral argument is DENIED. An appropriate order shall follow.
/s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: September 19, 2018

ORDER
In accordance with the memorandum issued this same [*30] day, IT IS HEREBY ORDERED THAT:
(1) Franzman/TAT’s motion for summary judgment, (Doc. 34), is DENIED IN ITS ENTIRETY, as specified below;
(2) Franzman/TAT’s motion for summary judgment is DENIED with respect to Jones/Midwest’s claims against them for indemnification in their third party complaint, (Doc. 12);
(3) Franzman/TAT’s motion for summary judgment is DENIED with respect to Jones/Midwest’s claims against them for contribution in their third party complaint; and
(4) Franzman/TAT’s request for oral argument, (Doc. 44), isDENIED.
/s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

2018 WL 4040363

Supreme Court of Alaska.
HDI-GERLING AMERICA INSURANCE COMPANY, as subrogee of Eggor Enterprises, Inc., Appellant and Cross-Appellee,
v.
CARLILE TRANSPORTATION SYSTEMS, INC., Appellee and Cross-Appellant.
Supreme Court Nos. S-16584/16604
|
August 24, 2018
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dani Crosby, Judge. Superior Court No. 3AN-14-07190 CI
Attorneys and Law Firms
Mark E. Wilkerson and Michelle Q. Pham, Preg O’Donnell & Gillett PLLC, Seattle, Washington, for Appellant/Cross-Appellee.
Robert L. Richmond and Marc G. Wilhelm, Richmond & Quinn, P.C., Anchorage, for Appellee/Cross-Appellant.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

OPINION
WINFREE, Justice.

I. INTRODUCTION
*1 An insurance company, as subrogee of its trucking company client, sued another trucking company for negligence after an accident between two truckers resulted in the insurance company paying over $3.5 million in oil spill remediation costs. After a trial the jury determined that the other trucking company’s driver was not negligent and returned a defense verdict. The insurance company now appeals some of the superior court’s trial rulings. Seeing no reversible error, we affirm the superior court’s entry of final judgment.

II. FACTS AND PROCEEDINGS

A. Facts
One night in February 2014 Carlile Transportation Systems, Inc. driver Bart Neal was driving a tractor-trailer southbound on the Dalton Highway. Neal could not steer properly at speeds above 35 miles per hour and decided to stop to put chains on his tires, referred to as “chaining up.” Neal stopped his rig in the roadway, partially blocking both traffic lanes, and, by his account, activated his flashers. Neal did not deploy reflective triangles.

Meanwhile, south of where Neal was stopped, Eggor Enterprises, Inc. driver Joe Seurer was hauling a load of fuel northbound. By his account, Seurer saw lights in the distance but could not determine what they were. He called on the radio but received no response, and he slowed his tractor-trailer from 50 to 35 miles per hour. About three-quarters of a mile from Neal, Seurer again saw lights and thought they might be from a pipeline maintenance truck stopped off the side of the road. He did not see reflective triangles or flashers.

The road had an S-curve between Seurer and Neal. Until Seurer rounded the final curve, he did not realize Neal’s rig was blocking the road. Seurer applied his brakes about 300 feet from Neal, avoiding a serious collision but causing Seurer’s trailer to fall onto the side of the highway. The trailer’s fuel load spilled alongside the road. Eggor Enterprises’s insurer, HDI-Gerling American Insurance Company (HDI), paid over $3.5 million in cleanup costs to remediate the spill.

B. Proceedings
In October 2015 HDI sued Carlile for the remediation costs and other damages, asserting the spill was caused by Neal’s negligence. The superior court held a ten-day jury trial in September 2016.

HDI’s primary theory of the case was that Carlile was vicariously liable for Neal’s actions and that Neal was either common-law negligent or negligent per se for violating 49 C.F.R. § 392.22, a federal highway regulation that applies to commercial drivers.1 Section 392.22 provides that commercial drivers who stop for any reason other than a “necessary traffic stop” must immediately activate flashers2 and, “as soon as possible, but in any event within 10 minutes,” deploy warning devices such as reflective triangles.3 HDI introduced evidence tending to show that Neal had not activated flashers; Neal admitted to not deploying triangles.

*2 Carlile argued in the alternative that Neal was not negligent, or that Neal’s negligence did not cause HDI’s injury, or that Seurer was negligent and comparatively at fault. Carlile sought to show that Neal complied with section 392.22 by arguing that it does not apply to chain-up stops lasting less than ten minutes. Carlile introduced evidence tending to show that Neal had activated flashers but conceded that he had not deployed triangles.

Both parties presented evidence supporting their theories. Much of the evidence was conflicting, but all witnesses — including Seurer and a former State of Alaska compliance officer — agreed that commercial drivers did not have to deploy triangles when they stopped to chain up on the Dalton Highway.

Most of the trial proceeded without controversy, but during Neal’s testimony he made two potentially prejudicial remarks in front of the jury. Neal knew Seurer by his radio call sign “Smokin’ Joe,” and during pretrial proceedings the superior court ordered Carlile to refrain from referring to Seurer by this name; HDI was concerned that the name would suggest to the jury that Seurer was a reckless driver.

Although warned not to say “Smokin’ Joe” during testimony, Neal nevertheless said: “So if you got to chain up, by the time I go out, put the reflectors out, go back, chain up, and then go back out and get the reflectors again, under this circumstances, I probably would have been killed by Smokin’ Joe when he come around that corner.” The superior court called an immediate bench conference, which concluded with the court deciding: “We’ll let it go this time, but next time, if he says it again, I’ll say something.” HDI did not object to this course of action.

A few minutes later, Neal used “Smokin’ Joe” again:
Q: Didn’t I ask you about every conversation you had with every person at the scene of that accident?
A: Yes, and I believe I told you I only talked to two people.
Q: Did you —
A: Smokin’ Joe — or —
After this second use, the superior court waited until the jury was excused before admonishing Neal and Carlile. HDI did not object to this course of action, and there was no third use of Seurer’s radio call sign.

Carlile moved for a directed verdict after HDI rested its case, but that motion was denied. After the close of all the evidence, the parties agreed to a special verdict form asking whether either Carlile or Eggor was negligent and whether that negligence caused HDI’s injury. The form did not distinguish between common-law negligence and negligence per se.

HDI sought a negligence per se jury instruction based on section 392.22 and Neal’s failure to use flashers or deploy triangles. As part of its proposed instruction, HDI requested that the superior court define “necessary traffic stop” in the regulation as “a stop that is caused by (1) an official traffic control device, (2) an authorized governmental agent, (3) an authorized flagger, or (4) to avoid other traffic on the roadway.” This grammatically challenged definition would have excluded chain-up stops from being a necessary traffic stop, preventing the jury from finding that Neal had complied with the regulation.

Carlile opposed the instruction, arguing that negligence per se did not apply in this case. Carlile also opposed defining necessary traffic stop in section 392.22, arguing alternatively that chain-up stops could qualify as necessary traffic stops or that the jury did not need the term defined for them.

*3 The superior court determined that negligence per se could apply and decided to give a negligence per se instruction. But the court did not define necessary traffic stop for the jury, reasoning:
I’m not going to tell them how to interpret that. The [federal regulation] doesn’t tell them. I’m going to leave that in the jury’s good hands. The cases [offered by HDI in support of its definition] were state cases, if I recall correctly. They were interesting, but I feel without a federal definition I’m not going to go that far in the instruction.
The final jury instruction provided the text of section 392.22(a)-(b)(1)4 and an instruction that the jury must find negligence if Neal violated the regulation unless the violation was excused, along with six ways a regulation violation would be excused. Relevant to this appeal, one excuse the jury instruction listed was that Carlile’s violation would be excused if the law’s meaning was obscure or unreasonable and if Carlile acted with reasonable care in attempting to obey it. The final instruction did not define necessary traffic stop or any other portion of the regulation.5

The jury deliberated and quickly requested the complete text of section 392.22. After discussion with the parties, the superior court declined to provide the complete text or any additional explanation. The jury continued deliberations and returned a verdict for Carlile. The special verdict form indicated that Carlile was not negligent; accordingly the rest of the answers were blank.

*4 HDI moved for a new trial, challenging the verdict as against the weight of evidence. HDI argued that no excuses applied and that the jury should have found Neal negligent per se for failing to deploy triangles or activate flashers. HDI also argued that the weight of the evidence showed Neal was common-law negligent. The superior court denied HDI’s motion and entered judgment for Carlile.

HDI appeals the superior court’s handling of Neal’s “Smokin’ Joe” comments, negligence per se jury instructions, and denial of a new trial. Carlile cross-appeals the superior court’s use of a negligence per se instruction and denial of Carlile’s directed verdict motion.

III. STANDARDS OF REVIEW
We generally review the superior court’s handling of prejudicial witness remarks for an abuse of discretion.6 But “[t]he failure to object to prejudicial remarks and to move the court for a mistrial or for an admonition to the jury constitutes a waiver of the objection.”7
Jury instructions involve questions of law to which we apply our independent judgment. When reviewing a trial court’s denial of a proposed instruction, our inquiry focuses upon whether the instructions given, when read as a whole, adequately inform the jury of the relevant law. An error in jury instructions is grounds for reversal only if it caused prejudice. In evaluating whether there has been prejudicial error with regard to jury instructions, we put ourselves in the position of the jurors and determine whether the error probably affected their judgment.[8]

“[W]hether to grant or refuse a new trial ‘rests in the sound discretion of the trial court.’ ”9
In reviewing the substance of a trial court’s order denying a new trial, we view the evidence in the light most favorable to the non-moving party, and “will … reverse a decision to deny a new trial [only] if the evidence supporting the verdict was so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust.” [10]

IV. DISCUSSION

A. HDI Waived Objection To Neal’s Potentially Prejudicial Remarks.
HDI argues for reversal because Neal twice referred to Seurer as “Smokin’ Joe” in violation of the superior court’s pretrial order. HDI contends that Neal intentionally made these comments to cast Seurer as a reckless driver and support Carlile’s comparative negligence argument.

HDI waived this argument by failing to request any contemporaneous action by the superior court.11 After the first use of “Smokin’ Joe,” the superior court noted: “We’ll let it go this time, but next time, if he says it again, I’ll say something.” HDI did not object to this course of action. After the second use, the court waited until the jury was excused before admonishing Neal and Carlile once more. This was a reasonable course of action: “The trial [court], in [its] discretion, is best able to determine whether there was any intentional misconduct … and to evaluate the probable impact of [such misconduct] upon the jury.”12 Here there was concern that admonishing Neal and Carlile in front of the jury could bring the issue to the jury’s attention when it may have been previously unnoticed.13 The superior court decided to admonish Neal outside of the jury’s presence before using harsher remedies. HDI did not object to this course of action, and there was no third use of “Smokin’ Joe.” HDI cannot now complain of the superior court’s handling of the remarks after failing to object at trial.14

B. Any Possible Error In Failing To Define “Necessary Traffic Stop” Was Harmless.
*5 HDI argues that the superior court erred by refusing to define “necessary traffic stop” in connection with its negligence per se instruction. HDI argues that section 392.22 required Neal to deploy triangles if he was not making a necessary traffic stop, and that, without a clarifying definition, the jury could have thought he was making a necessary traffic stop based on an erroneous interpretation of the law. HDI argues that this “prejudicial ambiguity” in the instructions requires reversal for a new trial.

Some authority supports HDI’s position that a definition was required in this case. “[A] plaintiff is generally entitled to a jury instruction ‘consonant with the theory of [the] case’ if the evidence supports the plaintiff’s theory.”15 And the failure to give such an instruction is reversible error when the jury instructions as a whole allow the verdict to rest on an erroneous legal theory.16

We first announced this rule in McKee v. State, when we reversed a conviction due to the superior court’s failure to define an elemental term.17 In that case McKee was charged with possessing a “concealed” weapon for carrying a knife.18 McKee testified that he had the knife clipped onto his coat such that it was partially in view and requested a jury instruction stating that “concealed” meant “completely hidden, secreted, or screened from you.”19 The superior court refused to give this, or any, instruction defining “concealed about the person,” and McKee was convicted.20 We reversed, first holding that “a weapon is concealed if it is hidden from ordinary observation.”21 We then held that a definition was necessary because “the jury might have believed McKee’s version of the facts, yet have concluded erroneously that he could be found guilty under the terms of the statute if any portion of the knife was hidden from view.”22 We explicitly rejected the argument, seemingly adopted by the superior court here and urged on us by Carlile, that the court did not need to give an instruction because the jurors could determine the disputed term’s meaning themselves.23 Instead we announced the rule that “where [a term] is susceptible of differing interpretations, only one of which is a proper statement of the law, an instruction must be given.”24

The same rule conceivably could govern this appeal. The term “necessary traffic stop” first appeared in federal regulations in 1939, without any definition.25 The term has not since been defined by the United States Supreme Court or any federal agency. The term does not appear in any other regulations from the same period where the context is more clear. It is not commonly used in everyday language. And the evidence at trial established that Alaska’s trucking industry has given the term a meaning almost completely opposite what HDI proposed at trial. Given these facts, the term necessary traffic stop is likely “susceptible of differing interpretations.”26

Were we to apply McKee’s rule to this case, we could accordingly conclude that the superior court erred by declining to define necessary traffic stop. But we find it unnecessary to decide whether an instruction was required in this case because, even assuming necessary traffic stop means generally what HDI claims it means,27 no reasonable jury could have found negligence per se on these facts.

*6 The jury was instructed that Carlile was excused from compliance with the regulation if “the meaning of the law was obscure or unreasonable and Carlile acted with reasonable care in attempting to obey it.” The evidence at trial showed without contradiction that drivers, experts, and regulators in Alaska think that reflective triangles are not required when chaining up; even Seurer testified that he did not think he needed to deploy triangles in that situation. HDI does not contest this evidence on appeal, instead conclusorily asserting that the regulation’s meaning “obviously” was not obscure to Carlile because it trained its drivers to follow the regulation. But this conclusion does not follow; if HDI is correct and the regulation does not mean what Carlile thinks, the Alaska trucking industry’s certainty that it is correctly interpreting section 392.22 makes its meaning more obscure, not less. Given this unanimous testimony, no reasonable jury could have found that the meaning of section 392.22 was not obscure or unreasonable and that Carlile acted with reasonable care in obeying the rule as Carlile understood it. And because no reasonable jury could have found that Carlile was not excused, any potential error did not affect the jurors’ verdict.28

HDI argues that we should not look at the evidence of excuse in this case because Carlile had the burden of showing excuse and it did not “argue or present any evidence that its failure to follow the regulation was excused.” It is true that Carlile had the burden of showing excuse29 and that Carlile did not make excuse the focus of its closing argument, choosing instead to argue that there was no violation. But Carlile did present uncontradicted testimony supporting excuse, and the jury was correctly instructed that Carlile was excused if the regulation was obscure and Carlile acted with reasonable care in attempting to obey it. And the jury was clearly interested in section 392.22’s applicability to negligence per se; its first note to the court during deliberations was a request to see the complete text of the regulation. Given these facts, we are not persuaded that Carlile’s failure to argue excuse should determine the harmlessness question. We instead conclude that the error was harmless because the jury should have applied the law of excuse to the uncontroverted testimony in this case and found that Carlile was excused. A reasonable jury following the law as explained in the instructions could not have done otherwise.

C. It Was Not An Abuse Of Discretion To Deny HDI’s Motion For A New Trial.
HDI also argues that the judgment must be reversed because the superior court failed to grant a new trial. HDI asserts that the great weight of evidence required the jury to find negligence per se on this record, either for the failure to deploy triangles or to use flashers.30

Whether to grant or deny a new trial “rests in the sound discretion of the trial court.”31 We will “reverse a decision to deny a new trial [only] if the evidence supporting the verdict was so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust.”32 “If there is an evidentiary basis for the jury’s decision, denial of a new trial must be affirmed.”33 HDI cannot meet this high burden.

*7 First, as to the failure to deploy triangles, we already have concluded that a reasonable jury would have found Carlile’s actions were excused based on the evidence presented at trial. The superior court did not abuse its discretion by refusing a new trial on this point. Second, as to the failure to use flashers, there was ample testimony supporting the jury verdict. Neal testified that he used flashers. Neal testified that Seurer said he saw flashers. A responder from Prudhoe Bay testified that Seurer said he saw lights in the distance and thought they were pickup trucks with their flashers on. Photographs taken at the scene suggested that the flashers were on. This evidence, viewed in the light most favorable to Carlile, was not “so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust.”34

V. CONCLUSION
We AFFIRM the superior court’s entry of final judgment for Carlile. We therefore do not address Carlile’s cross-appeal.

All Citations
— P.3d —-, 2018 WL 4040363

Footnotes

1
Negligence is a tort for which the plaintiff recovers for harm caused by the defendant’s breach of a duty of care to the plaintiff. Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657, 667 (Alaska 2000). In common-law negligence the duty owed is determined by case law, usually as a duty “to act as a reasonable person would under the circumstances.” Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202, 1204 (Alaska 1996). In negligence per se, however, duty and breach are established when the defendant violates a statute or regulation and the defendant’s conduct toward the plaintiff is “within the ambit of the statute or regulation in question.” Cable v. Shefchik, 985 P.2d 474, 477 (Alaska 1999) (quoting Osborne v. Russell, 669 P.2d 550, 554 (Alaska 1983) ).

2
49 C.F.R. § 392.22(a) (2018).

3
Id. § 392.22(b)(1); id. § 393.95(f).

4
Section 392.22 also includes subsection (b)(2), providing rules for special circumstances. The superior court removed this section as inapplicable based on the evidence presented at trial.

5
Jury Instruction 29 read:
The law of the State of Alaska is as follows:
A person driving a commercial motor vehicle, or a company whose business involves the operation of a commercial motor vehicle, upon a highway or vehicular way or area, shall comply with the regulations relating to the operation or driving of commercial motor vehicles, adopted by the United States Department of transportation and contained in 49 C.F.R. Part 392 (Driving of Commercial Motor Vehicles)
….
49 C.F.R. Part 392.22 is as follows:
(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section.
(b) Placement of warning devices — (1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place three bidirectional emergency reflective triangles in the following manner:
….
If you find that Carlile violated this law, then you must find that Carlile was negligent, unless you find that the violation is excused.
The violation is excused if:
….
(6) the meaning of the law was obscure or unreasonable and Carlile acted with reasonable care in attempting to obey it.
If you find that Carlile complied with this law, or that any violation was excused, you may still find that it was negligent if you decide that a reasonable person would have taken precautions in addition to those required by these laws.

6
See Otis Elevator Co. v. McLaney, 406 P.2d 7, 10 (Alaska 1965).

7
Heacock v. Town, 419 P.2d 622, 623 (Alaska 1966).

8
City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (footnotes and internal quotation marks omitted) (quoting Thompson v. Cooper, 290 P.3d 393, 398–99 (Alaska 2012) ).

9
Hunter v. Philip Morris USA, Inc., 364 P.3d 439, 447 (Alaska 2015) (quoting Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002) ).

10
Id. (footnotes omitted) (first quoting Kava, 48 P.3d at 1173 (Alaska 2002); then citing id.; then quoting Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) ).

11
See Heacock v. Town, 419 P.2d 622, 623 (Alaska 1966) (“The failure to object to prejudicial remarks and to move the court for a mistrial or for an admonition to the jury constitutes a waiver of the objection.”).

12
Otis Elevator Co. v. McLaney, 406 P.2d 7, 10 (Alaska 1965).

13
Cf. Parish v. State, 477 P.2d 1005, 1011 n.13 (Alaska 1970) (“[T]he observation has been made that attorneys will frequently refrain from asking for a limiting instruction simply because it serves no purpose other than to call attention to the prejudicial evidence.”).

14
See Heacock, 419 P.2d at 623. We may review a waived argument for plain error, which exists if “an obvious mistake has been made which creates a high likelihood that injustice has resulted.” Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981). But any supposed mistake here was not “obvious”; as explained above, admonition outside of the jury’s presence was a reasonable course of action. We therefore decline to find that the superior court’s chosen actions were plain error.

15
Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757, 764 (Alaska 2007) (quoting Clary Ins. Agency v. Doyle, 620 P.2d 194, 201 (Alaska 1980) ).

16
See Thompson v. Cooper, 290 P.3d 393, 401 (Alaska 2012); Parnell, 174 P.3d at 764-65; McKee v. State, 488 P.2d 1039, 1043 (Alaska 1971).

17
488 P.2d at 1042-43.

18
Id. at 1042.

19
Id.

20
Id. at 1040, 1042.

21
Id. at 1042.

22
Id. at 1042-43, 1043 n.26.

23
Id.

24
Id.

25
Motor Carrier Safety Regulations Revised, 4 Fed. Reg. 2,294, 2,299 (June 7, 1939).

26
See McKee, 488 P.2d at 1043.

27
We express no opinion whether a chain-up stop is a necessary traffic stop under the regulation. But we do note that HDI’s proposed definition of necessary traffic stop was clearly underinclusive; at minimum a necessary traffic stop must account for traffic controls and exigencies involving other vehicles, law enforcement, animals crossing the road, and other similarly required stops.

28
See City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (“In evaluating whether there has been prejudicial error with regard to jury instructions, we put ourselves in the position of the jurors and ‘determine whether the error probably affected their judgment.’ ” (quoting Thompson v. Cooper, 290 P.3d 393, 399 (Alaska 2012) ) ); see also Patterson v. Cox, 323 P.3d 1118, 1121 (Alaska 2014) (“Of course, if no reasonable jury could have found for [the plaintiff] on his products liability claim, the superior court’s omission would be harmless.”).

29
See Ferrell v. Baxter, 484 P.2d 250, 266 (Alaska 1971) (“It is fair to put the burden of proving excuse upon the one who has violated the law in the first place.”).

30
HDI does not appeal the superior court’s denial of a new trial on the issue of common-law negligence.

31
Hunter v. Philip Morris USA, Inc., 364 P.3d 439, 447 (Alaska 2015) (quoting Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002) ).

32
Id. (quoting Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) ).

33
Kocurek v. Wagner, 390 P.3d 1144, 1151 (Alaska 2017) (quoting Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982) ).

34
See Hunter, 364 P.3d at 447 (quoting Hogg, 134 P.3d at 352).