MARQUEZ v. BURSCH TRUCKING COMPANY (1986)

A jury in a personal-injury action found that defendant Bursch Trucking Company, doing business as Roadrunner Trucking Company (Roadrunner), a New Mexico corporation, was liable to plaintiff Cruz Marquez and that plaintiff suffered damages in the sum of $2,798,562.   The jury, however, apportioned fault at 50 per cent to each party and consequently awarded plaintiff $1,399,281.

Defendant noticed motions for a new trial, vacation of judgment, and judgment notwithstanding the verdict.   After hearing argument, the trial court denied defendant's motion for a new trial but instead entered a judgment notwithstanding the verdict after determining that plaintiff's proportionate share of fault was at least 75 per cent thereby reducing the amount of the judgment to $699,640.50.

Plaintiff has appealed contending that the trial court lacked the power to reduce the award in this manner.   Defendant has cross-appealed contending that, for a number of reasons, a judgment in favor of plaintiff in any amount cannot stand.

THE FACTUAL BACKGROUND

Defendant Roadrunner, an interstate trucking company located in Albuquerque, New Mexico, leased a 1964 International Harvester tractor-trailer from one Ed Hinderks, doing business as H & H Enterprises, an independent trucker whose base of operation was Alamogordo, New Mexico.   Such leasing arrangements are common practice in the industry because of the seasonal variance in the demand for truck transportation of goods.

Under the terms of the agreement between Roadrunner and Hinderks, the latter relinquished control of the truck to Roadrunner who determined the routes and assignments for the use of the vehicle.   Hinderks was permitted to select the driver subject, however, to Roadrunner's approval of his competency.   Hinderks also agreed to provide for the maintenance of the truck.

Roadrunner, for its part, paid the driver's salary and provided workers' compensation insurance.   It was, however, permitted to deduct the cost of the premiums from the payments due to Hinderks under the lease.   Those payments were based on a percentage of the revenue Roadrunner derived from the use of the truck.

Hinderks selected plaintiff as the driver of the truck and sent him to Roadrunner's terminal in Albuquerque.   There, Roadrunner administered to Marquez a portion of a written commercial driver's examination, had him briefly drive a truck, and sent him on an overnight run with an experienced driver.   Satisfied with his ability, Roadrunner then began, in the fall of 1977, to assign him long-distance hauling trips.

In mid-May 1978, Roadrunner instructed Marquez to transport a load of sheet rock from Albuquerque to Denver.   Outside of Denver, plaintiff began to experience difficulty with the vehicle's engine.   Upon completing his delivery, plaintiff contacted his supervisor at Roadrunner, Virgil Heath, and informed him that the truck was not operating properly.   Heath told plaintiff to take the tractor to Denver Diesel, a repair shop in the city.   A mechanic for the garage inspected the truck and, among other problems, found that there was 10–to–12 inches of play in the steering wheel.

Heath informed plaintiff that after consulting with Hinderks, it had been decided that while the engine should be fixed in Denver and made “drivable”, Marquez need only “worry about getting the truck back home and we will fix [the steering there].”  Heath instructed plaintiff that on his return trip he should pick up a load of lumber near the New Mexico-Colorado border and deliver it to Roadrunner's Albuquerque facility.

On the return trip to Albuquerque, according to plaintiff, the vehicle's steering continued to deteriorate.   The trip, however, was completed without incident.   The plaintiff arrived at Roadrunner's shipping yard on a Saturday night after the yard had closed.   There were no Roadrunner personnel present.   There was a telephone available and a 24–hour number which could be used to contact Roadrunner.   Plaintiff did not make use of the phone to contact any of the company's representatives.

Plaintiff unhooked the trailer and showered.   He next telephoned his girlfriend who told him she was not able to come to Albuquerque to give him a ride home.   Plaintiff then decided to drive the truck “bobtail”, an industry term meaning the tractor without the trailer, and began a four-hour trip to Alamogordo.   He neither sought nor obtained permission for this trip from Roadrunner.

During the trip, according to plaintiff, the steering wheel's play became progressively worse.   After an hour's drive, he stopped at a service station and slept until the following morning, then resumed his trip, still experiencing difficulty with the vehicle's steering.   At one point, a truck passing in the opposite direction almost “blew” him off the road.   Nevertheless, he continued on.

In his second hour of driving, while traveling southbound on a narrow desert road, a large refrigerator truck approached plaintiff from the opposite direction.   As it passed, it generated an airblast which forced his vehicle partially onto the shoulder of the highway.   Believing that hard braking would cause the vehicle to roll over, he took his foot off the accelerator, hoping to coast until the truck slowed down enough for him to safely return to the road.   The tractor, however, struck a large drain pipe and flipped over.   The cab of the truck tore loose from its chassis.   The wreckage finally came to rest some 130 feet away from the initial point of impact.   Plaintiff was knocked unconscious and when he awoke, found that the cab had landed on his body, breaking his back.   Aside from plaintiff's in-court account of the accident, there was no eyewitness testimony presented by either party.

After the accident, Marquez filed a claim for workers' compensation with Roadrunner, a claim which the company rejected.   Plaintiff then moved to California and, on May 25, 1979, filed a complaint for negligence and declaratory relief, naming Hinderks ¹ and Roadrunner as defendants.

Plaintiff's theory of liability for negligence on the part of Roadrunner was that under Interstate Commerce Commission rules it was obligated to maintain the truck, specifically the steering mechanism, in a safe condition and that its failure to do so was the cause of the accident.²

In the count for declaratory relief, plaintiff asked for a judicial determination that his claim fell outside the purview of the Workers' Compensation Act.   In particular, his second cause of action alleged:  “Plaintiff has attempted to present claims for [damages] to Defendants herein, but Defendants have failed and refused to acknowledge said claims, other than to deny that they are legally responsible to plaintiff by virtue of their contention that Plaintiff was an employee working in the course and scope of his employment at the time of the occurrence of the above related incidents․  Plaintiff contends that his status at all times material hereto was that of an independent contractor․  Defendants dispute these contentions and contend that plaintiff was an employee of defendants at all times material hereto and is thereby barred from relief outside the jurisdiction of the Worker's Compensation Act.”

 In its answer, Roadrunner specifically alleged that plaintiff was an employee and not an independent contractor but denied that the accident occurred within the course and scope of plaintiff's employment.   Although the answer failed to plead specifically the affirmative defense that Marquez was subject to the exclusive remedy of the workers' compensation law, this failure did not constitute a waiver of that defense.   Plaintiff's complaint squarely put the issue before the court.

For some reason not apparent from the record, the trial court did not render a judgment in the declaratory relief action nor were any issues involved in that action submitted to the jury.

As regards the negligence action, the defendant urged that plaintiff took the truck without permission and that the accident resulted from his poor driving or his falling asleep at the wheel.   Clearly, if plaintiff took the truck without permission, there would be no liability on the part of Roadrunner.

To counter the claim of lack of permission for the trip, plaintiff offered evidence that he was taking the truck to Alamogordo for the necessary repairs as per instructions from Hinderks.

The jury was instructed that if it found that plaintiff took the truck without permission, he could not recover.   Thus, implicit in the jury's verdict and in the trial court's action on the motions for a new trial and judgment notwithstanding the verdict, is the finding that in some manner the trip to Alamogordo was authorized.

We have concluded that defendant must prevail on the cross-appeal.   It thus becomes unnecessary to discuss plaintiff's contentions on the direct appeal.

 As we have previously pointed out, plaintiff's claim against Roadrunner rests upon his assertion that, because of the above-cited federal law and regulations, Roadrunner had a non-delegable duty to maintain the truck in a safe condition.   Those same laws and regulations make the carrier, such as Roadrunner, liable to the public for the torts of the drivers of leased vehicles when operating the truck for the benefit of the carrier.   The purpose of the federal law is to protect the public and to prevent the carrier from shifting liability to the lessor under the theory that the lessor was an independent contractor.   In that context, the driver is not a “member of the public” subject to the protection for which the duty is imposed.

“Because the carrier now has both a legal right and duty to control vehicles operated for its benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carriers ․ just as if the lessee-carrier were the owner of the vehicles.  [Citation.]”  (White v. Excalibur Ins. Co. (5th Cir.1979) 599 F.2d 50, 52–53.)  “Congress wished to impose on lessee-carriers responsibility for the operation of leased vehicles ‘as if they were the owners of such vehicles.’  [Citation.]  To make them assume the burden of liability for the harm caused by their leased vehicles without according them protection given employers under state 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.”  (Id., at p. 53.)

 Beyond this federal court interpretation of federal law, the evidence here establishes that plaintiff was in fact a direct employee of Roadrunner.   Roadrunner directed his activities, paid his salary and covered him with workers' compensation insurance.   His exclusive remedy was within the jurisdiction of the Workers' Compensation Law.

The judgment appealed from is vacated.   The matter is remanded to the trial court with direction to enter a judgment in favor of the defendant on both causes of action.

Each party to bear own costs on appeal.

FOOTNOTES

1.   Prior to trial, Hinderks was successful in quashing service of process on him on the grounds that California lacked jurisdiction over him.

2.   49 U.S.C. § 11107(a)(4) requires an authorized motor carrier to comply with requirements prescribed by the Secretary of Transportation.  49 C.F.R. § 1057.12, subd. (c)(1) commands that in connection with leased vehicles:  “The lease shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for 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.”  (Emphasis added.)Of course it is perfectly proper for the lease to provide that the lessor bear the cost of any required maintenance or repairs.

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.