APPEAL from the Superior Court of San Bernardino County. John P. Wade, Judge. Reversed. (Super.Ct.No. SCVSS131877)
The opinion of the court was delivered by: Hollenhorst J.
CERTIFIED FOR PUBLICATION
Defendant and cross-complainant Amerigas Propane, L.P. (Amerigas) appeals summary judgment entered on Amerigas's cross-complaint, in favor of cross-defendant Landstar Ranger, Inc. (Landstar).
This action arises from Amerigas contracting with motor carrier, Landstar Ranger, Inc. (Landstar), for the transportation of 30 Amerigas propane tanks. Landstar leased a tractor and flatbed trailer (referred to collectively as a truck) from plaintiff Steven King (King), through his company, King Transportation, LLC. Landstar assigned transportation of the load of tanks to King Transportation, Inc. While offloading the gas tanks, King was seriously injured.
King and his wife brought an action for personal injury and loss of consortium damages against Amerigas and other defendants. Amerigas settled with the Kings, and cross-complained against Landstar for reimbursement of a portion of the settlement proceeds. Amerigas's amended cross-complaint (FACC) contained causes of action for equitable indemnity, contribution, and declaratory relief.
The trial court granted Landstar's motion for summary judgment on the FACC on the grounds Amerigas admitted King was an employee of Landstar and, since Landstar had workers' compensation covering King, Amerigas's FACC was barred under the workers' compensation exclusive remedy doctrine. The trial court also concluded Amerigas did not have standing to bring its cross-action because the Kings had not assigned King's rights to Amerigas.
Amerigas contends the trial court erred in granting summary judgment because Landstar's motion for summary judgment did not address or refute Amerigas's alternative claims that Landstar violated Federal Motor Carrier Safety Regulations (FMCSR*fn1) and breached its duty owed to King as an independent contractor. Amerigas argues Landstar's motion fails to address the issues of Landstar's duty to King under the FMCSR, as an independent contractor.
We conclude a triable issue existed as to whether King was an employee under state law. We also conclude Amerigas had a viable claim based on the FMCSR, which Landstar did not negate. Summary judgment was thus improper.
2. Factual and Procedural Background
Amerigas hired Landstar to transport a combination of thirty 250- and 288-gallon propane tanks from its facility in Camino, in northern California, to its yard in Fontana, California. Landstar assigned the load to King Transportation, LLC pursuant to two agreements entitled, "Independent Contractor Operating Agreement" and "Motor Vehicle and Haulage Agreement Between Independent Contractor and Landstar Ranger, Inc." Landstar required all its drivers to lease a tractor to Landstar. King leased to Landstar a tractor and "drop-deck" trailer, referred to as a flatbed trailer, he had recently obtained for hauling loads for Landstar. King lacked flatbed trailer experience.
After King applied for the job of transporting cargo for Landstar, Landstar gave him a general written test to determine in part whether King needed "tie-down" training for securing cargo on flat-bed trailers. According to King, Landstar did not tell him he needed to attend the tie-down training and therefore he did not do so. No one at Landstar instructed him on the proper method for securing the gas tanks.
On April 13, 2005, King, with the assistance of three Amerigas employees, loaded the tanks on King's truck. This was the first time King had transported this type of cargo. The top layer of tanks was supported by wood beams known as dunnage.
The following morning, King delivered the tanks to Amerigas's yard in Fontana. While David Jones, an Amerigas employee, went to get a forklift to offload the tanks, King unstrapped the tanks. King had chocks, which could be used to prevent the tanks from rolling, but did not use them. He did not believe there was any danger of the tanks rolling off the dunnage. King acknowledged at his deposition that securement of the gas tanks was the truck driver's responsibility.
While King was standing on the right side of the truck, rolling up one of the straps, Jones began offloading gas tanks from King's truck with the forklift. Marvin Clark, an employee of Andrews Logistics who was delivering bulk propane, assisted Jones in offloading the gas tanks at the rear of King's truck, by chaining the tanks to the forklift forks. The chain slipped and the tank Jones was lifting with the forklift fell back onto the dunnage. When Jones got off the forklift and went to rehook the chain, he noticed King was on the ground, along with a gas tank. Clark called 911.
Landstar's Field Safety Manager, Earl Yarbrough, testified at his deposition that when Landstar drivers do not meet minimum requirements during the application process, they must take a cargo securement class. Yarbrough was critical of King using a 77-inch beam to support the top row of tanks, rather than a 96-inch beam. It was King's responsibility to make sure all the beams were 96 inches.
Yarbrough testified that during the offloading, there should have been chocks in place and King should have removed only the straps securing the row of tanks he was offloading, rather than all the straps. Also, while the forklift was offloading tanks, King should not have stood near the truck since it was likely the forklift would bump the trailer. Yarbrough said he would not expect someone with no experience using a flatbed trailer to know these precautionary procedures. Such a driver would be required to attend a cargo securement course.
King and his wife filed a complaint against Amerigas, Jones, and Andrews Logistics, alleging claims of (1) negligence, (2) loss of consortium, and (3) premises liability. The Kings alleged that Jones negligently unloaded the tanks with a forklift, causing a tank to dislodge and fall on plaintiff, severely injuring him.
Amerigas filed a cross-complaint against Landstar for equitable indemnification, contribution and declaratory relief.
Landstar's First Motion for Summary Judgment
In July 2007, Landstar filed a motion for summary judgment, arguing Landstar did not owe King any legal duty and was not negligent. Landstar argued it was not involved in the incident and was not responsible for the acts of its independent contractors, such as King, since Landstar did not control King's conduct.
The trial court denied Landstar's summary judgment motion, concluding there were material triable issues of fact, including whether Landstar controlled the manner in which King transported loads; whether Landstar dictated maintenance of the truck; whether King and his company, King Transportation LLC, were employees or independent contractors of Landstar; and whether Amerigas, as opposed to King, was responsible for loading and unloading the tanks.
In May 2008, the Kings settled their complaint against Amerigas and Jones. King dismissed his lawsuit in return for $3,375,000. Amerigas's cross-complaint remained pending.
Amerigas filed an FACC adding Andrews Logistics as a cross-defendant. Amerigas's FACC alleged the same causes of action as the original cross-complaint, including (1) equitable indemnification, (2) contribution, and (3) declaratory relief. Amerigas incorporated in its FACC the allegations contained in King's complaint.
Landstar's Second Motion for Summary Judgment
Landstar moved to continue the trial on Amerigas's FACC so that Landstar could file a second motion for summary judgment. In opposition to Landstar's continuance motion, Amerigas argued Landstar's proposed second motion for summary judgment was moot since it was based on the workers' compensation exclusive remedy bar, and Amerigas had agreed to withdraw its employer negligence theory claim. Amerigas noted in its opposition that, regardless of whether King was an employee or independent contractor, Amerigas was asserting two additional liability theories: (1) Landstar breached a statutory duty under the FMCSR and (2) Landstar breached a common law duty owed to its independent contractors.
The trial court granted Landstar's request for a continuance of the trial. Thereafter, Amerigas settled with Andrews Logistics, leaving Landstar as the sole remaining cross-defendant.
In December 2008, Landstar filed a second motion for summary judgment. Landstar argued in its motion that Amerigas's FACC was barred by the workers' compensation exclusive remedy doctrine. Landstar asserted that the only claim alleged in Amerigas's FACC was employer negligence, which Landstar refuted by providing in its second summary judgment motion, evidence that at the time of King's accident, Landstar had workers' compensation insurance covering its employees. Landstar also argued in its summary judgment motion that Amerigas had no standing to assert its cross-complaint claims because Amerigas's claims were derivative of the Kings' claims, and the Kings did not assign their rights to Amerigas.
Amerigas argued in opposition to Landstar's summary judgment motion that Landstar's motion failed to dispose of the entire cross-complaint. It did not address Amerigas's claim that Landstar breached its statutory duty under the FMCSR, which mandated Landstar ensure that King was qualified to use the flatbed truck. The motion also did not refute the alternative negligence theory that Landstar breached its duty to its independent contractor drivers, such as King, to provide adequate training on securing cargo.
During oral argument, the trial court noted Amerigas admitted in its FACC that King was an employee of Landstar and it was uncontroverted that Landstar had workers' compensation insurance coverage for its employees at the time of King's accident. Therefore, Amerigas's FACC was barred under the workers' compensation exclusive remedy doctrine. The trial court further stated that there was no assignment of the Kings's rights ...