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Great West Casualty Company v. Carolina Casualty Insurance Co.

May 4, 2004

GREAT WEST CASUALTY COMPANY, APPELLANT (A03-1609), RESPONDENT (A03-1835),
v.
CAROLINA CASUALTY INSURANCE COMPANY, RESPONDENT (A03-1609), APPELLANT (A03-1835), SELECT TRANSPORTATION, INC., D/B/A M&M TRUCKING, RESPONDENT, SHAWN EVERHARDT, RESPONDENT, CARRIELEE PEREZ, TRUSTEE AND NEXT OF KIN OF KEVIN VANCE, RESPONDENT, MAD DOG TRUCKING, INC., RESPONDENT, NORTHLAND INSURANCE COMPANY, RESPONDENT.



Kanabec County District Court File No. C4-02-547

Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

The opinion of the court was delivered by: Minge, Judge

Reversed and remanded

UNPUBLISHED OPINION

This proceeding consolidates related appeals from a summary judgment holding trucking firms and their insurers liable in a wrongful death action. We consider challenges to the determinations that respondent Everhardt and the insurer of his truck, Great Western Casualty Company, are primarily liable and that other insurers and trucking firms are liable for excess damages. Because there are genuine issues of material fact and because there is no evidence to support a finding of liability as to one of the trucking firms and its insurer, we reverse the entry of summary judgment and remand.

FACTS

Respondent Shawn Everhardt drives and owns his own truck. In July 2001, he was seeking work and talked to Mahna Dauer, the vice president and co-owner of respondent Mad Dog Trucking, Inc. (Mad Dog). Mad Dog had leased two of its trucks with drivers to Select Transportation, Inc. (Select) to haul concrete panels on a job for Murphy Rigging & Erecting (Murphy Rigging) in south Minneapolis. Dauer told Everhardt that Select might be looking for another truck and driver on the Murphy Rigging job. Dauer called Select and spoke with its president, Mark Christenson, about Everhardt's availability to work for Murphy Rigging. Christenson allegedly told Dauer to send Everhardt to Select's office to fill out an application. While Everhardt did not go to Select's office, Mad Dog had copies of some of Select's contract documents, which Dauer gave to Everhardt and helped him complete. However, none of these documents were signed by Select.

On August 7, 8, and 13, 2001, Everhardt drove his truck tractor to the Murphy Rigging job site and began hauling loads for Select even though he did not have a signed agreement or any of the required placards on his vehicle indicating that he was driving for or leased to Select. Select's representative at the job site was Jeremiah Mitchell, an independent owner/operator who acted as liaison at the job site between Select and the various drivers. On the days that Everhardt hauled loads, he filled out job tickets and gave these tickets to Mitchell. Select processed the job tickets and sent invoices to Murphy Rigging for payment.

When Everhardt arrived at the site on August 14, Mitchell told him that he was not needed that day, that there had been a complaint that he did not have Select placards on his truck, and that he should obtain placards. Select alleged that its officers and managers had not realized that Everhardt had been working at the site, and when it learned he was there, it instructed Mitchell that Everhardt could not drive until he had completed all required paperwork and obtained placards. In fact, Mitchell and the Mad Dog drivers had completed Select's application process, which included drug testing, background checks, reference checks, and vehicle inspections.

Upon learning that he could not drive his truck on the Murphy Rigging job on August 14, Everhardt apparently decided that he would use the day to repair his truck, obtain Select placards, and complete Select's paperwork. This required that he travel to Rogers, on the northwest edge of the Twin Cities metropolitan area. After first moving a trailer at the job site at the request of Mitchell, Everhardt drove his truck without any trailer (bobtailing) from the Murphy Rigging site in south Minneapolis to a repairs/parts shop in St. Paul. Since the shop was not yet open when he arrived, Everhardt decided to purchase fuel at a nearby service station before returning to the highway. En route to the service station, his truck struck and killed Kevin Vance.

Vance's mother, Carrielee Perez, brought a wrongful death action against Everhardt, Select and Mad Dog. Everhardt's insurance company, Great West Casualty Company (Great West), in turn brought a declaratory judgment action to determine whether its non-trucking use policy provided coverage, or whether coverage existed under Select's policy with Carolina Casualty Insurance (Carolina) or Mad Dog's policy with Northland Insurance (Northland).

Perez, Select, Great West, Northland, and Carolina brought cross-motions for summary judgment. In April 2003, the district court granted Perez's motion, denied summary judgment for all other parties, and found Great West primarily liable and Carolina and Northland liable for the excess damages. Great West appealed the decision in May 2003. In June 2003, this court remanded the appeal for a final judgment on the amount of coverage available under the Carolina and Northland policies. In September 2003, the district court assigned primary liability coverage to Great West in the amount of $1 million, excess liability coverage to Carolina in the amount of $1 million, and excess liability coverage to Northland in the amount of $750,000. This appeal followed.

DECISION

On review of summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). On appeal, we view the evidence in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). We will "not resolve or decide issues of fact but only determine whether there are issues of fact to be tried." Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. App. 1987), review denied (Minn. May 20, 1987). Where there is any doubt as to the existence of a genuine issue of material fact, we ...


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