Jorgensen Farms, Inc. v. Country Pride Cooperative, Inc. , 2012 S.D. LEXIS 152 ( 2012 )

#26154, #26161-a-LSW
2012 S.D. 78IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
JORGENSEN FARMS, INC., d/b/a
JORGENSEN LAND & CATTLE
PARTNERSHIP, Plaintiff,
v.
COUNTRY PRIDE COOPERATIVE, INC.,
A SOUTH DAKOTA CORPORATION, Defendant, Third-Party
Plaintiff and Appellant,
v.
AGRILIANCE, LLC; DAKOTA
GASIFICATION COMPANY,
and AGRIUM U.S. INC., Third-Party Defendants and
Appellees,
and
CHARLES BAKER TRUCKING
COMPANY, and SPAANS TRUCKING,
INC., Third-Party Defendants.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
TRIPP COUNTY, SOUTH DAKOTA
****
THE HONORABLE MARK BARNETT
Judge
****
CONSIDERED ON BRIEFS
ON MARCH 19, 2012
OPINION FILED 11/20/12
AMY AMUNDSON
THOMAS D. JENSEN of
Lind, Jensen, Sullivan &
Peterson, PA
Minneapolis, Minnesota Attorneys for defendant, third-
party plaintiff and appellant.
MARGO D. NORTHRUP of
Riter, Rogers, Wattier &
Brown, LLP
Pierre, South Dakota
and
EMILY MURPHY
Stillwater, Minnesota Attorneys for third-party
defendant and appellee
Agriliance N.O.R. #26161.
PAUL E. BACHAND of
Schmidt, Schroyer, Moreno,
Lee & Bachand, PC
Pierre, South Dakota
TODD LANGEL of
Faegre & Benson, LLP
Des Moines, Iowa
and
KRISTIN R. EADS of
Faegre & Benson, LLP
Minneapolis, Minnesota Attorneys for third-party
defendant and appellee
Agrium.
STEVEN J. OBERG of
Lynn, Jackson, Shultz &
Lebrun, PC
Rapid City, South Dakota Attorneys for third-party
defendant and appellee
Dakota Gasification.
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WILBUR, Justice
[¶1.] Jorgensen Farms (Jorgensen) sued Country Pride Cooperative
(Country Pride) alleging that Country Pride sold Jorgensen fertilizer contaminated
with rye damaging its 2007 wheat crop. Country Pride settled with Jorgensen but
preserved its claims against third-party defendants Agriliance, Agrium, and Dakota
Gasification Co. (Dakota Gas). The trial court granted the third-party defendants’
motions for summary judgment. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Jorgensen grows certified and registered winter wheat seed. During
late spring or early summer 2007, rye plants contaminated Jorgensen’s winter
wheat crop. According to Jorgensen’s expert, Jorgensen suffered a loss of $556,070
as a result of the rye contamination as Jorgensen was unable to sell the crop as
certified seed, and instead, sold the wheat for a lower price as commodity grain.
[¶3.] Jorgensen, who believed the source of the contamination was fertilizer
it purchased from Country Pride, brought suit against Country Pride to recover
damages. Subsequently, Country Pride brought third-party complaints against a
number of parties alleging that, if Jorgensen proved that the fertilizer it purchased
from Country Pride was contaminated, the rye contamination must have occurred
in the chain of fertilizer distribution. 1 Country Pride alleges that the third-party
1. Country Pride concedes that it only joined the Agriliance-Charles Baker
Trucking (Baker Trucking)-Dakota Gas chain of distribution, and thereby
excluded other parties who supplied or transported ammonium sulfate and
urea to Country Pride during 2006 and who could also have been joined in
the lawsuit.
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defendants’ negligence, breach of contract, and/or breach of warranty entitles
Country Pride to indemnification or contribution. 2
[¶4.] Country Pride settled with Jorgensen and the two carriers named as
third-party defendants: Charles Baker Trucking (Baker Trucking) and Spaans
Trucking, Inc. The only remaining issue is whether Country Pride is entitled to
indemnification or contribution from any or all remaining third-party defendants:
Agriliance, Agrium, or Dakota Gas.
[¶5.] The remaining third-party defendants were involved in selling either,
or both, ammonium sulfate and urea, the two chemicals used in mixing the
fertilizer. Agriliance, a sales broker, and Country Pride entered into a verbal
agreement whereby Country Pride would purchase ammonium sulfate from
Agriliance. As the intermediate seller, Agriliance never possessed or handled the
ammonium sulfate. Rather, Agriliance purchased the ammonium sulfate from
third-party defendant Dakota Gas. Agrium is a producer of both ammonium sulfate
and urea. Country Pride dismissed its claim based on Agrium’s sale of ammonium
sulfate but, on appeal, is pursuing a claim for the urea sold by Agrium.
[¶6.] The trial court granted summary judgment in favor of Agriliance,
Agrium, and Dakota Gas, reasoning that Country Pride failed “to provide a specific
2. Contribution and indemnification, although similar, are distinct remedies. A
right to contribution arises when “[a] party to a joint, or joint and several,
obligation . . . satisfies more than his share of the claim against all[.]” SDCL
20-1-6. In contrast, “indemnity is an ‘all-or-nothing’ proposition where the
party seeking indemnification must show an absence of proportionate fault to
shift the entire liability[.]” Weiszhaar Farms, Inc. v. Tobin, 522 N.W.2d 484,
492 (S.D. 1994).
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fact upon which a jury could find a party responsible without resorting to
speculation.” Country Pride appeals. We review Country Pride’s remaining claims
against each Agriliance, Agrium, and Dakota Gas separately to determine whether
summary judgment was appropriate as to each. 3
STANDARD OF REVIEW
[¶7.] In reviewing a trial court’s grant or denial of summary judgment under
SDCL 15-6-56(c), we must view evidence in the light most favorable to the non-
moving party and decide both “‘whether the moving party has demonstrated the
absence of any genuine issue of material fact’” and whether the trial court correctly
decided all legal questions. Bertelsen v. Allstate Ins. Co., 2011 S.D. 13, ¶ 15, 796
N.W.2d 685, 692 (quoting Advanced Recycling Sys., L.L.C. v. Se. Prop., Ltd., 2010
S.D. 70, ¶ 10, 787 N.W.2d 778, 783). We make these determinations de novo, with
“‘no deference to the [trial] court’s ruling.’” Highmark Fed. Credit Union v. Hunter,
2012 S.D. 37, ¶ 7, 814 N.W.2d 413, 415 (quoting Adrian v. Vonk, 2011 S.D. 84, ¶ 8,
807 N.W.2d 119, 122).
3. The trial court noted Country Pride provided a “handful” of “evolving
theories.” Alternative theories are allowed by SDCL 15-6-8(e)(2), which
provides:
A party may set forth two or more statements of a claim or
defense alternatively or hypothetically, either in one count or
defense or in separate counts or defenses. When two or more
statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative
statements. A party may also state as many separate claims or
defenses as he has regardless of consistency and whether based
on legal or on equitable grounds or on both.
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ANALYSIS AND DECISION
[¶8.] On appeal, the parties dispute whether Country Pride has set forth
sufficient evidence to survive summary judgment. Country Pride concedes that it
has not provided direct evidence as to which of the three third-party defendants, if
any, are responsible for the rye contamination. However, Country Pride argues,
despite the absence of direct evidence, it has provided sufficient circumstantial
evidence to survive summary judgment.
[¶9.] Country Pride’s position at the summary judgment hearing was that
circumstantial evidence of “inspection negligence” established that rye entered the
ammonium sulfate due to Baker Trucking’s negligence in its failure to properly
inspect its delivery trucks. With this backdrop in mind, we examine the evidence
presented in this case, viewing it “in [the] light most favorable to the nonmoving
part[ies][.]” Cashman v. Van Dyke, 2012 S.D. 43, ¶ 6, 815 N.W.2d 308, 311.
[¶10.] 1. Agriliance is not liable as a matter of law under either a
breach of contract or negligence theory.
[¶11.] Country Pride presents alternative theories under which Agriliance
could be liable for the damages to Jorgensen’s wheat crop. First, Country Pride
argues that a September 17, 2006 delivery of ammonium sulfate by Baker Trucking,
which Country Pride ordered from Agriliance, contained the rye contamination.
Second, Country Pride argues that Agriliance supplied approximately 65.3% of
Country Pride’s ammonium sulfate prior to September 2006 and that this supply
contained the contamination.
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[¶12.] There are disputed facts regarding the date the first load of ammonium
sulfate was delivered to Country Pride by Baker Trucking. 4 In addition, Country
Pride offered the testimony of former Baker Trucking employee, David Sherman,
regarding the presence of rye in Baker Trucking’s trucks. 5 When the evidence is
viewed in the light most favorable to Country Pride, the non-moving party, the date
of delivery, and whether the trailer used by Baker Trucking was contaminated are
disputed facts that should ordinarily be decided by a jury. In this case, however,
resolution of those disputed facts is not determinative as to any liability on the part
of Agriliance.
[¶13.] Country Pride is suing Agriliance for breach of warranty 6 and
negligence. Country Pride conceded that the ammonium sulfate was defect-free
when it was manufactured and shipped from Dakota Gas. In light of this
4. Country Pride and Agriliance dispute when the first load of ammonium
sulfate was delivered to Country Pride. Based on its timeline of events,
Country Pride asserts that it received its first load of ammonium sulfate from
Baker Trucking on September 17 or 18. Agriliance argues that Country
Pride’s own receipt, or “hand ticket,” which contains handwritten notations
providing a date of “9/14/06” and “delivered by Ted @ 1:00 PM,” establishes a
September 14 delivery date. Country Pride concedes that if Baker Trucking
delivered the ammonium sulfate to Country Pride on September 14,
Agriliance cannot be held liable.
5. Sherman, after initially stating that he had never come across rye seed in
any of his deliveries, recanted, and stated that Charles Baker, owner of
Baker Trucking, told Sherman he had rye in his fields and that, if Baker had
gotten rye in his fields, “there’s a good possibility that rye got in between the
two floors” of the trailer that delivered ammonium sulfate to Country Pride,
and therefore, was the source of Jorgensen’s rye contamination.
6. Country Pride advances that Agriliance violated the implied warranty of
merchantability (SDCL 57A-2-314); the implied warranty of fitness for a
particular purpose (SDCL 57A-2-315); and an express warranty by
affirmation, promise, description, sample (SDCL 57A-2-313).
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concession, Agriliance cannot be liable as a matter of law for breach of warranty
because the goods were as warranted from the manufacturer when the goods were
shipped. See Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 256 (S.D. 1976) overruled
on other grounds by First Premier Bank v. Kolcraft Enters., Inc., 2004 S.D. 92, 686
N.W.2d 430 (stating that, in a case with claims for breach of warranty, negligence,
and strict liability involving a valve manufactured by Honeywell, “plaintiff [injured
homeowner] has the burden of showing that the defect existed when the product left
the manufacturer’s hands”).
[¶14.] Additionally, Country Pride’s negligence claim against Agriliance is
based upon its failure to inspect the shipper’s, Baker Trucking, trucks. Agriliance,
however, cannot be liable for negligence because it is the carrier’s duty, under state
law, to inspect its truck. 7 Berry v. Chicago, M. & St. P. Ry. Co., 24 S.D. 611, 124
7. The parties disagree whether the Carmack Amendment affects the outcome
of this case. The Carmack Amendment governs the liability of carriers and
freight forwarders for damage to goods during transportation. 49 U.S.C. §§
11706 and 14706. Although this case involves transportation by truck, both
motor carriers and rail carriers, are “carriers” under the Carmack
Amendment. And, as the Supreme Court has explained, “in cases where it
applies,” the Carmack Amendment
imposes upon receiving rail carriers and delivering rail carriers
liability for damage caused during the rail route under the bill of
lading, regardless of which carrier caused the damage.
Carmack’s purpose is to relieve cargo owners of the burden of
searching out a particular negligent carrier from among the
often numerous carriers handling an interstate shipment of
goods.
Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., __ U.S. __, __, 130 S. Ct.
2433, 2441, 177 L. Ed. 2d 424 (2010) (internal citations and quotations
omitted). See generally Royal & Sun Alliance Ins., PLC v. Ocean World
Lines, Inc., 612 F.3d 138, 145-46 (2nd Cir. 2010) (considering whether a
(continued . . . )
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N.W. 859, 862-63 (1910). Country Pride has settled with and dismissed Baker
Trucking from this lawsuit. Based on the undisputed material fact that the
ammonium sulfate was defect-free when manufactured and shipped, as conceded by
Country Pride, and that Agriliance did not have a duty to inspect the carrier,
Agriliance is entitled to summary judgment as a matter of law.
[¶15.] Country Pride offered the possibility that the doctrine of alternative
liability could apply in this case. 8 However, because Country Pride did not join all
potential defendants, i.e., all parties who produced, shipped, manufactured, or sold
ammonium sulfate or urea to Country Pride in 2006, even if this Court were to
consider adopting the doctrine, it would not be applicable for that reason. See
Bradley v. Firestone Tire and Rubber Co., 590 F. Supp. 1177, 1179 (D.S.D. 1984)
(quoting Starling v. Seaboard Coast Line R.R. Co., 533 F. Supp. 183, 188 (S.D. Ga.
________________________________
( . . . continued)
United States Supreme Court case involving rail carriers is applicable to a
case involving motor carriers and freight forwarders).
We first observe that the Carmack Amendment does not apply here because
Agriliance is neither a carrier nor freight forwarder. See 49 U.S.C. §§
13102(3), (8). Second, even if the Carmack Amendment applied, it would only
impose liability on the carrier, Baker Trucking, not Agriliance, a sales broker.
See, e.g., Windows, Inc. v. Jordan Panel Sys. Corp., 177 F.3d 114, 117-18 (2nd
Cir. 1999).
8. The alternative liability theory is
[w]here the conduct of two or more actors is tortious, and it is
proved that harm has been caused to the plaintiff by only one of
them, but there is uncertainty as to which one has caused it, the
burden is upon each such actor to prove that he has not caused
the harm.
Restatement (Second) of Torts § 433B(3) (1965).
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1982) (stating that “[u]nder alternative liability, however, all the possible
wrongdoers responsible for the injury must be before the Court, and the negligent
acts must have been committed simultaneously”)).
[¶16.] 2. Country Pride’s claims against Agrium are barred
by (a) Country Pride’s failure to give notice, (b) the
economic loss doctrine, and (c) the statute of limitations.
[¶17.] Country Pride argues, in the alternative, that if the ammonium sulfate
it purchased from Agriliance was not the source of the rye contamination, the urea
Country Pride purchased from Agrium in fall 2006 caused the contamination.
Country Pride concedes that the more likely source of the rye contamination is the
fertilizer sold by Agriliance. Despite this concession, Country Pride believes it has
set forth sufficient facts for a jury to determine that Agrium is the source of the rye
contamination.
[¶18.] Country Pride asserts that it can prove that: (1) it purchased 100% of
its August 2006 urea from Agrium; (2) Jorgensen purchased 66,090 pounds of urea
from Country Pride on September 14; (3) on one or more occasions, Agrium used
Drueke Trucking, a party not joined in this action, to deliver urea to Country Pride;
and (4) that Country Pride has previously discovered contaminated urea in Drueke
Trucking deliveries. 9 Thus, according to Country Pride, a reasonable jury could
infer that the urea supplied by Agrium in August 2006 contained the offending rye.
9. Dale Vogt, a Country Pride employee, testified that, on several occasions, he
discovered corn contaminated urea in fertilizer delivered by Drueke. Vogt did
not testify, nor does Country Pride allege, that it previously discovered rye
contaminated urea delivered by Drueke.
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[¶19.] In response, Agrium argues that summary judgment was appropriate
for four reasons: (1) the trial court correctly concluded that there was no genuine
issue of material fact regarding the source of the contamination; (2) Country Pride’s
breach of warranty claims fail because Country Pride did not give reasonable notice
as required by SDCL 57A-2-607(3); (3) Country Pride’s tort claims are barred by the
economic loss doctrine; and (4) Country Pride’s claims are barred by the statute of
limitations contained in SDCL 57A-2-725.
[¶20.] This Court has often stated that, “‘[i]f there exists any basis which
supports the ruling of the trial court, affirmance of a summary judgment is proper.’”
Murray v. Mansheim, 2010 S.D. 18, ¶ 4, 779 N.W.2d 379, 382 (quoting Jacobson v.
Leisinger, 2008 S.D. 19, ¶ 24, 746 N.W.2d 739, 745). We hold that Country Pride’s
breach of warranty claims are barred by its failure to give reasonable notice; its tort
claims are barred by the economic loss doctrine; and its indemnification and
contribution claim is barred by the statute of limitations. Therefore, we affirm
summary judgment in favor of Agrium.
(a) Country Pride’s breach of warranty claims against Agrium are
barred by the notice requirement contained in SDCL 57A-2-607(3).
[¶21.] Both Country Pride and Agrium agree that Agrium’s sale of urea to
Country Pride was a sales transaction, and thus governed by the Uniform
Commercial Code (UCC). See City of Lennox v. Mitek Indus. Ins., 519 N.W.2d 330,
332 (S.D. 1994) (stating that “[i]n order for the UCC to govern the transaction, the
sale must be for a sale of goods”). Accordingly, Country Pride must comply with the
notice requirement contained in SDCL 57A-2-607(3)(a). This statute provides,
“[w]here a tender [of goods] has been accepted[,] . . . [t]he buyer must within a
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reasonable time after he discovers or should have discovered any breach notify the
seller of breach or be barred from any remedy[.]” (Emphasis added.)
[¶22.] We previously interpreted this notice requirement in Hepper v. Triple
U Enterprises., Inc., 388 N.W.2d 525 (S.D. 1986). In Hepper, we reasoned that
“[t]he purpose of requiring notice within a reasonable time is to give the seller
sufficient time to investigate the breach of warranty claim while facts are still
fresh[,] . . .foster[ ] settlement through negotiation, permit[ ] a seller to avoid future
defects, allow[ ] a seller to minimize damages, and protect[ ] a seller from stale
claims.” Id. at 527 (additional citations omitted). Importantly, “[n]otice is an
element that must be specifically proven; it is not an affirmative defense” and
“[n]otice of breach by summons and complaint is obviously insufficient.” Id. at
527,529.
[¶23.] Agrium argues that Country Pride “never even pleaded notice in its
complaint and cannot provide that it ever gave Agrium anything resembling notice
of the breach it claims.” We agree. Notably, Country Pride, in its reply brief,
responds to Agrium’s notice argument by stating “notice was . . . given to Agrium in
a reasonable time per the statute” without stating, nor citing to the record, when
this notice was provided and through what means. Thus, Country Pride has not
shown facts in the record to support its assertion that it provided reasonable notice,
nor did our review of the record bear out this assertion. As a result, we affirm
summary judgment on its breach of warranty claims on the basis that Country
Pride failed to provide notice.
(b) Country Pride’s negligence claim against Agrium is barred by the
economic loss doctrine.
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[¶24.] In addition to its warranty theory, Country Pride also argues that
Agrium is liable under a negligence theory. In UCC cases, this Court has adopted
the economic loss doctrine which provides that “‘economic losses are not recoverable
under tort theories’” such as negligence. Diamond Surface, Inc. v. State Cement
Plant Comm’n, 1998 S.D. 97, ¶ 24, 583 N.W.2d 155, 161 (quoting City of Lennox,
519 N.W.2d at 333). Rather, a plaintiff is “‘limited to the commercial theories found
in the UCC.’” Id. 10
[¶25.] This doctrine has two exceptions. Id. ¶ 25. First, tort damages are not
barred in cases where personal injury is involved. Id. ¶ 25 n.5 (citing City of
Lennox, 519 N.W.2d at 333). Neither Country Pride nor Agrium asserts that this
first exception applies in this case. Rather, the parties dispute the application of
the second exception. The second exception, commonly referred to as the “other
property exception,” applies “when the damage is to ‘other property’ as opposed to
the specific goods that were part of the transaction.” Id.
[¶26.] Country Pride reasons that the “other property” exception applies
because the damage was to the winter wheat crop, rather than the specific goods
that were part of the transaction (the fertilizer). This Court has previously noted,
“[o]ther property has been defined as damage to property collateral to the product
itself.” City of Lennox, 519 N.W.2d at 333. Examples include, “1) [a] defective
heater that exploded and destroyed a major portion of a refinery” and “2) defective
10. The underlying purpose of the rule “is to maintain the separateness of tort
law and contract law.” Lesiak v. Cent. Valley Agric. Coop., Inc., 808 N.W.2d
67, 83 (Neb. 2012).
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brakes that hypothetically caused [a] truck to run into [a] home.” Id. (internal
footnotes omitted). However “[w]hen a defect in a component part damages the
product into which that component was incorporated, economic losses to the product
as a whole are not losses to ‘other property’ and are therefore not recoverable in
tort.” Id.[¶27.] Here, the urea was a component part that was later incorporated into
both the fertilizer and the wheat crop. The alleged defect, the rye-contamination,
damaged the fertilizer and wheat crop, resulting in lost profits. “Economic loss . . .
is defined as that loss resulting from the failure of the product to perform to the
level expected by the buyer and the consequential losses resulting from the buyer’s
inability to make use of the ineffective product, such as lost profits.” Diamond
Surface, 1998 S.D. 97, ¶ 25, 583 N.W.2d at 161 (quoting City of Lennox, 519 N.W.2d
at 333). Country Pride’s claimed damages are consequential losses, specifically lost
profits, from defective fertilizer rather than damage to collateral property.
Accordingly, Country Pride’s claimed damages fall under the scope of the general
rule and not the “other property” exception; thus, the economic loss doctrine bars
Country Pride’s negligence claim against Agrium.
(c) Country Pride’s indemnity and contribution claim against Agrium
is barred by the statute of limitations.
[¶28.] Country Pride’s initial complaint in December 2008 did not include any
claims against Agrium. On April 20, 2010, Country Pride amended its complaint to
assert an indemnification claim against Agrium. Country Pride pleaded that
ammonium sulfate supplied by Agrium was the source of the contamination. This
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ammonium sulfate claim was later dismissed. Only Agrium’s supply of urea is now
at issue.
[¶29.] However, Country Pride never amended its complaint to plead that
urea purchased from Agrium was the source of contamination. Indeed, Agrium was
not notified that its urea deliveries to Country Pride were the subject of Country
Pride’s suit until October 2010.
[¶30.] SDCL 57A-2-725(1) provides, “[a]n action for breach of any contract for
sale must be commenced within four years after the cause of action has accrued.”
This Court has “consistently held that ‘compliance with statutes of limitations is
strictly required and doctrines of substantial compliance or equitable tolling are not
invoked to alleviate a claimant from a loss of his right to proceed with a claim.’”
Murray, 2010 S.D. 18, ¶ 21, 779 N.W.2d at 389 (quoting Dakota Truck Underwriters
v. S.D. Subsequent Injury Fund, 2004 S.D. 120, ¶ 17, 689 N.W.2d 196, 201).
[¶31.] The parties agree that this action accrued when the urea was delivered
to Country Pride in August 2006. Country Pride never formally commenced an
action regarding the urea claim nor did it move to amend under SDCL 15-6-15(a).
Agrium was not put on notice that its August 2006 urea delivery would be the
subject of this suit until October 2010. As a result, Country Pride’s indemnification
and contribution claim against Agrium is barred by the four-year statute of
limitations for an action for breach of a sales contract.
[¶32.] 3. Dakota Gas did not have a duty to inspect Baker
Trucking’s vehicles.
[¶33.] The only claim that Country Pride makes with respect to Dakota Gas
is negligence. Country Pride argues that Dakota Gas, as the manufacturer of the
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ammonium sulfate sold by Agriliance, had a duty to ensure that trailers used by
Baker Trucking for delivery were free from contaminants, and therefore, Dakota
Gas was negligent when it failed to inspect Baker Trucking’s vehicles. The trial
court granted Dakota Gas’s motion for summary judgment on the basis that,
regardless of any factual disputes, under South Dakota law, the duty to ensure a
properly cleaned trailer rested solely upon the carrier, Baker Trucking. We agree.
[¶34.] This Court has previously stated that:
[T]he duty of furnishing suitable vehicles rests upon the carrier,
and not upon the shipper, and the failure to discharge this duty
is negligence from the consequences of which the carrier is not
permitted to free himself by a stipulation in the bill of lading
which devolves upon the shipper the duty of selecting vehicles
which are suitable. Such a stipulation is void, as an attempt by
the carrier to limit his liability against his own negligence in
providing defective vehicles.
Berry, 24 S.D. 611, 124 N.W. at 862 (emphasis added).
[¶35.] Based on Berry, we hold that the duty to provide a contaminant-free
vehicle rested upon Baker Trucking, the carrier, not Dakota Gas, the shipper.
“‘Summary judgment in a negligence case is appropriate when the trial judge
resolves the duty question in the defendant’s favor.’” Highmark Fed. Credit Union,
2012 S.D. 37, ¶ 7, 814 N.W.2d at 415 (quoting Hendrix v. Schulte, 2007 S.D. 73, ¶ 8,
736 N.W.2d 845, 847). Consequently, because Dakota Gas did not breach any duty
owed to Country Pride, we affirm the trial court’s grant of summary judgment.
CONCLUSION
[¶36.] We affirm the summary judgment motions granted in favor of
Agriliance, Agrium, and Dakota Gas.
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[¶37.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
SEVERSON, Justices, concur.
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