DocketNumber: 2017 CA 1062
Citation Numbers: 249 So. 3d 845
Judges: Higginbotham, Holdridge, Penzato
Filed Date: 4/13/2018
Status: Precedential
Modified Date: 7/29/2022
*847Appellant, Bridget Jackson, appeals the trial court's judgment granting summary judgment in favor of ACME Truck Line, Inc., (ACME) and dismissing her claims and the trial court's judgment denying her motion for new trial. For the reasons that follow, we affirm the trial court.
FACTS AND PROCEDURAL HISTORY
This matter arises out of an accident on February 17, 2015, wherein Troylond Wise was driving a 1999 Peterbilt 18-wheeler that he owned. Before the accident Takisha Welch had asked Mr. Wise to pull a trailer for use by Alpha of Charisma Carnival Club (Alpha) as a float in a 2015 Mardi Gras parade that took place in Franklin, Louisiana. Ms. Welch, on behalf of Alpha, paid Mr. Wise $100.00 for the use of his tractor-trailer. On the date of the parade, Ms. Jackson was a passenger in the float being pulled by Mr. Wise. While the tractor-trailer attempted to make a right turn, Ms. Jackson was thrown from the float, and Mr. Wise ran over her twice, resulting in severe injuries. As a result of the accident, Ms. Jackson filed suit against Mr. Wise, ACME, and First Guard Insurance Company (First Guard), the non-trucking liability insurer for the tractor-trailer.
Prior to the 2015 accident, on September 1, 2011, Mr. Wise and ACME entered into a five-year lease agreement, wherein Mr. Wise leased his tractor-trailer to ACME in order to transport cargo for ACME. Section 5 of the lease agreement provided as follows:
EXCLUSIVE USE: It is understood and agreed that [ACME] shall have exclusive possession, control and use of the Leased Equipment for the duration of the Lease Agreement. [ACME] assumes complete responsibility for the operation of the Leased Equipment for the duration of the Lease Agreement. The Leased Equipment shall not be operated for any other purpose other than the transportation of [ACME] authorized shipments. Further, Owner is specifically prohibited from entering into any trip-lease, or other agreement or contract involving the Leased Equipment during the lease term, nor shall Owner permit the unauthorized use of the Leased Equipment at any time whatsoever. The Owner agrees that the Leased Equipment shall not be used for any parades, social events, or any private use whatsoever .... (emphasis added).
Based on the lease agreement, ACME filed a motion for summary judgment, claiming that the only allegation made against it was that the tractor-trailer was owned and/or being driven by ACME. ACME asserted that it was undisputed that it was not the owner of the tractor-trailer, but even if it was, it could not be liable based on ownership. Furthermore, ACME, citing Jones v. Western Preferred Casualty Company, et al.,
Ms. Jackson filed an opposition to ACME's motion for summary judgment, claiming that pursuant to
ACME filed a reply to Ms. Jackson's opposition claiming that Ms. Jackson's argument was that she need only show the existence of a lease between the owner-lessor (Mr. Wise) and the carrier-lessee (ACME) to hold ACME liable for the actions of Mr. Wise. Relying on Bays v. Summitt Trucking, LLC,
At the hearing on the motion for summary judgment, ACME argued that Mr. Wise was not in the course and scope of his employment. Ms. Jackson argued that FMCSA regulations,
After a hearing, the trial court denied the motion for new trial, and on February 21, 2017, signed a judgment in accordance therewith. It is from this judgment that Ms. Jackson appeals. Ms. Jackson assigns as error whether
JURISDICTION
Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11),
Ms. Jackson appealed only the judgment rendered on February 21, 2017, which was the judgment denying her motion for a new trial. The established rule in this circuit is that the denial of a motion for new trial is an interlocutory and non-appealable judgment.
*850Carpenter v. Hannan, 2001-0467 (La. App. 1 Cir. 3/28/02),
It is obvious from Ms. Jackson's brief that she intended to appeal the judgment on the merits-the August 2, 2016 judgment that granted ACME's motion for summary judgment. The granting of a motion for summary judgment and dismissing a defendant with prejudice is a final, appealable judgment. See La. C.C.P. art. 1915(A)(1) and (3) ; Vicknair v. Our Lady of the Lake Hosp., Inc., 2017-0273 (La. App. 1 Cir. 4/18/17),
DISCUSSION
Summary Judgment
Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action .... and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2).
"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).
A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.
Jackson v. City of New Orleans , 2012-2742 (La. 1/28/14),
Applicability of Interstate Commerce Commission Regulations
Ms. Jackson assigns as error that the trial court failed to apply the "complete responsibility" provisions of the FMCSA, *851specifically
The Department of Transportation regulates leases of equipment used in interstate commerce under the authority of
The Secretary and the Board have jurisdiction, as specified in this part, over transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property or both are transported by the motor carrier-
(1) between a place in-
(A) a State and a place in another State;
(B) a State and another place in the same State through another State ...
An "authorized carrier may perform authorized transportation in equipment it does not own" only if there is a written lease granting the use of the equipment and meeting the requirements contained in
Relying on
The purpose of the regulations is "to protect members of the public from motor carriers' attempts to escape liability for the negligence of drivers by claiming their drivers were independent contractors." Mendoza v. Hicks,
Ms. Jackson claims that
The court rejected Reliance's argument finding that the intrastate nature of the particular trip at issue was not determinative but that because the lease between the *852owner-lessor and the carrier-lessee was for interstate transport, the regulations applied, and Reliance was liable for the insurance coverage provided in its policy to the carrier-lessee.
A federal court in Louisiana also relied upon the reasoning in Reliance to hold that the truck's procurement or lease agreement, rather than the circumstances of the particular loss, determine the application of the mandatory insurance required of the motor carrier. Travelers Indent. Co. of IL v. W. Am. Specialized Transp. Servs. Inc.,
The United States Fifth Circuit Court of Appeals disagreed with the reasoning of both Reliance and Travelers in Canal Ins. Co. v. Coleman ,
ACME relies on Jurey to oppose Ms. Jackson's argument. In Jurey, when the accident occurred, Mr. Kemp, the driver of a tractor, had just picked up the trailer after maintenance was performed and was driving home. Jurey,
We find that Ms. Jackson's reliance on Reliance to be misplaced as the present case does not involve the interpretation of the MCS-90 endorsement, and even if it did, the Fifth Circuit in Coleman has rejected the reasoning of Reliance. We also do not find Jurey to be determinative of the issues before us. In Jurey we were deciding whether there was insurance coverage, not whether the carrier-lessee was liable for the actions of the owner-lessor. Therefore, despite the arguments of the parties and the oral reasons of the trial court, none of the above cases are determinative of the facts of this case. ACME's trucking liability insurer has not been sued in this matter and whether the federally mandated insurance is applicable is not the issue before us.
Vicarious Liability of ACME
Ms. Jackson is attempting to hold ACME statutorily liable for the actions of Mr. Wise. Ms. Jackson claims that by virtue of the FMCSA regulations, ACME is vicariously liable for the negligent operation of a leased vehicle as long as a valid lease was in effect and the placard displaying the lessee's USDOT identification number was on the tractor (known as "logo liability). See Reliance,
In Simmons v. King,
In 1956 Congress amended the Interstate Common Carrier Act "in order to protect the public from the tortious conduct of the often judgment-proof truck lessor operators by requiring interstate motor carriers to assume full direction and control of the vehicles 'as if they were the owners of such vehicles:' " Bays,
(a) General authority of Secretary.-The Secretary may require a motor carrier providing transportation subject to jurisdiction under subchapter I of chapter 135 that uses motor vehicles not owned by it to transport property under an arrangement with another party to-
...
(4) have control of and be responsible for operating those motor vehicles in compliance with requirements prescribed by the Secretary on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carrier.
As a result of Section 14102, the ICC promulgated
(c) Exclusive possession and responsibilities.
(1) The lease shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment Tor the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.
Prior to 1992 many courts interpreted
However, in response to these cases, industry trade groups began petitioning the ICC which then issued guidance documents that questioned the judicial interpretation of its regulations. See Lease & Interchange of Vehicles (Identification Devices),
We prefer that courts decide suits of this nature by applying the ordinary principles of State tort, contract, and agency law. The Commission did not intend that its leasing regulations would supersede otherwise applicable principles of State tort, contract, and agency law and create carrier liability where none would otherwise exist. Our regulations should have no bearing on this *854subject. Application of State law will produce appropriate results.
This exclusive-control regulation, along with corresponding language in lease agreements, has led to significant litigation across federal and state courts concerning the extent of motor carriers' vicarious liability to the public for negligent and wanton acts by the drivers of their leased vehicles. Courts have interpreted the regulations to impose various forms of vicarious liability on motor carriers. At first, some courts imposed so-called Togo liability' for all negligence involving a vehicle that displayed a carrier's identifying placards and motor-carrier number, regardless of the existence of a lease. See Mellon National Bank & Trust Co. v. Sophie Lines, Inc.,289 F.2d 473 (3d Cir. 1961) (imposing strict liability after a lease had been terminated because the motor carrier had not yet collected its placards from the driver/lessor) superseded by regulation, Lease & Interchange of Vehicles (Identification Devices) (49 C.F.R. Part 1057),3 I.C.C.2d 92 , 95-97 (1986)as recognized in Jackson v. O'Shields,101 F.3d 1083 , 1086-87 (5th Cir. 1996). Other courts imposed vicarious liability that mirrored traditional respondeat-superior principles, covering only those actions that were reasonably within the scope of employment for the motor carrier. See Wilcox v. Transam. Freight Lines, Inc.,371 F.2d 403 , 404 (6th Cir. 1967) ("In our opinion, the I.C.C. regulations do not impose a liability on a carrier using leased equipment greater than that when operating its own equipment."). Finally, many courts imposed strict-lease liability: so long as there was a lease in effect, "exclusive control" and "complete responsibility" meant that the motor carrier was liable for any negligence involving the vehicle under lease. See Morris v. JTM Materials, Inc.,78 S.W.3d 28 , 38-43 (Tex. Ct. App. 2002).
Lohr,
We agree with Lohr that the ICC attempted to alter the judicial interpretation of strict-lease liability or "logo liability." Relying on the ICC's own interpretation, Lohr stated, "[t]his court cannot find that the commission's interpretation was erroneous or inconsistent. The text of the regulation requires certain language within lease agreements, but it does not impose any liability scheme directly. It is reasonable to interpret the regulation as leaving that question to various States' common-law courts." Lohr,
Therefore, Lohr looked to Alabama state law to determine the scope of vicarious liability of a lessee under a federally regulated carrier lease. Additionally, Lohr explained that even if the federal law were to control, the carrier-lessee would only be held liable for the actions of the driver if he was within the scope of his employment by the carrier-lessee. Lohr,
To make them assume the burden of liability for the harm caused by their leased vehicles without according them the protection given employers under *855state substantive law would broaden their exposure to suit beyond that to which employers in fact are subject. We find no warrant for such strict liability in the federal law.
Therefore, Lohr concluded that even applying federal law, the carrier-lessee would have the same protection against liability as an employer would receive; it would not be liable for actions by the owner-lessor/driver outside the scope of his employment. Lohr,
In 1992, the ICC amended
Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee. An independent contractor relationship may exist when a carrier lessee complies with49 U.S.C. § 14102 and attendant administrative requirements.
As recognized by Edwards v. McElliotts Trucking, LLC,
Three approaches have surfaced in the intervening years. A small number of courts to have come in contact with these regulations cling to the pre-1992 interpretation of the control regulation. A second group has emerged that holds that Subsection (c)(4) requires that courts interpret the control regulation to have no bearing on the classification of the relationship between carriers and owner-operators. Finally, a third group of courts believe the control regulation and Subsection (c)(4) create a rebuttable presumption of employment that can be rebutted by resort to state common law principles.
Edwards,
The addition of Subsection (c)(4) was also analyzed by Simpson v. Empire Truck Lines, Inc.,
As both Lohr and Edwards determined, this court must look to state law to determine whether Mr. Wise was acting within the course and scope of his employment at the time of the accident to determine if ACME is liable to Ms. Jackson. We find it unnecessary to determine which line of cases to follow regarding whether Subsection (c)(4) has no bearing on the relationship *856of the carrier and owner-lessor or creates a rebuttable presumption of employment because, under either scenario, we find the record supports that Mr. Wise was not acting in the furtherance of the business of ACME and was actually acting in direct contravention of the lease.
Based on the above statutes, regulations, and jurisprudence, we agree with the trial court that because Mr. Wise was acting outside the scope of his employment, the mandatory provisions of
New Arguments at Motion for Summary Judgment Hearing
Ms. Jackson asserts that the trial court violated La. C.C.P. art. 966(F) by permitting ACME to raise new arguments at the hearing that were not briefed. Louisiana Code of Civil Procedure article 966(F) states, "A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time."
Ms. Jackson argues that because the inter/intra-state argument was not set forth in ACME's motion for summary judgment, the trial court erred in granting the motion. ACME filed a motion for summary judgment arguing that it had no vicarious liability for the actions of Mr. Wise who was not in the course and scope of his employment at the time of the accident. Ms. Jackson then opposed the motion for summary judgment claiming that
Although Ms. Jackson claims she had no notice of the argument made by ACME with regard to intrastrate trips, this court notes that ACME relied upon this case in its original motion for summary judgment. ACME did not request summary judgment based on
Motion for New Trial
The standard of review of a denial of a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. City of Baton Rouge v. Douglas, 2016-0655 (La. App. 1 Cir. 4/12/17),
*857Given our above opinion that the trial court correctly granted summary judgment in this matter, Ms. Jackson did not carry her burden that she was entitled to a new trial.
CONCLUSION
For the above and foregoing reasons, the August 2, 2016 judgment on the motion for summary judgment and the February 21, 2017 judgment on the motion for new trial are affirmed. All costs of this appeal are assessed against Bridget Jackson.
AFFIRMED.
Higginbotham, J. concurs. TMH
Holdrige J. concurs with reasons
HOLDRIDGE, J., concurs.
I concur in the result. I do think that the mover, ACME, raised a new legal theory in its reply memorandum, which the plaintiff was not given an opportunity to respond. It would have been the better practice in such a situation for the trial court to continue the hearing on the motion for summary judgment and allow Ms. Jackson an opportunity to rebut the new legal argument raised in ACME'S reply memorandum. However, since this court reviews a motion for summary judgment de novo, Ms. Jackson was given a full opportunity to brief the new legal argument raised in the mover's reply memorandum and this court was able to give a full review of the issue on appeal.
First Guard issued a non-trucking liability policy to cover when a truck was driving bobtail (without a trailer attached) or was operating solely for personal use.
Ms. Jackson has filed a supplemental and amending petition adding two other defendants, who are not the subject of this appeal.
Congress dissolved the ICC when it passed the Interstate Commerce Commission Termination Act of 1995 and replaced it with, among other agencies, the Federal Motor Carrier Safety Administration ("FMCSA"). See Pub. L. No. 104-88, 109 Sta. 803 (codified at
The Motor Carriers Act requires that a policy include a MCS-90 endorsement that covers a judgment against a carrier for the negligence of a motor vehicle.
By 2005 La. Acts No. 205, effective January 1, 2006, La. C.C.P. art. 2083 was amended to remove the longstanding provision that interlocutory judgments that "may cause irreparable harm" are appealable. An interlocutory judgment is now appealable only when expressly provided by law. La. C.C.P. art. 2083(C). Accordingly, the denial of a new trial is not generally appealable. McKee,
Louisiana Code of Civil Procedure Article 966 was amended by La. Acts 2015, No. 422, and was effective January 1, 2016, so the amendment applies in this case since the motion for summary judgment was filed on May 19, 2016.
Ms. Jackson relies upon language in Mendoza to claim that ACME is vicariously liable for the actions of Mr. Wise. However, we find Mendoza distinguishable from the facts of this case. In Mendoza, the driver was transporting goods pursuant to a lease arrangement between a carrier-lessee and an owner-lessor. (Although there was an issue as to the lease since the owner-lessee had to borrow another truck for the actual trip, the driver was in the act of transporting goods for the carrier-lessee at the time of the accident). Mendoza,