377 A.2d 444 (Me. 1977), Weeks v. Kelley

Citation377 A.2d 444
Opinion JudgeARCHIBALD,
Party NameLeland E. WEEKS, Sr. and Mildred Weeks v. William R. KELLEY and Currier Leasing, Inc. v. MERRILL TRANSPORT CO.
AttorneyBerman, Berman & Simmons, P. A. by Jack H. Simmons, Lewiston, for plaintiff. Wathen & Wathen by Malcolm L. Lyons, Augusta, Richardson, Hildreth, Tyler & Troubh by Robert L. Hazard, Ronald D. Russell, Portland, for defendant.
Judge PanelBefore DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.
Case DateSeptember 06, 1977
CourtSupreme Judicial Court of Maine

Page 444

377 A.2d 444 (Me. 1977)

Leland E. WEEKS, Sr. and Mildred Weeks

v.

William R. KELLEY and Currier Leasing, Inc.

v.

MERRILL TRANSPORT CO.

Supreme Judicial Court of Maine.

September 6, 1977

Page 445

Berman, Berman & Simmons, P. A. by Jack H. Simmons, Lewiston, for plaintiff.

Wathen & Wathen by Malcolm L. Lyons, Augusta, Richardson, Hildreth, Tyler & Troubh by Robert L. Hazard, Ronald D. Russell, Portland, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

Page 446

ARCHIBALD, Justice.

This appeal requires us to determine whether it was error to dismiss Currier Leasing, Inc.'s (Currier) amended third party complaint against Merrill Transport Co. (Merrill) for "failure to state a claim upon which relief can be granted." Rule 12(b)(6), M.R.C.P.

We conclude the dismissal was error and we sustain Currier's appeal.

FACTS

From the pleadings the following facts emerge. Leland Weeks and William Kelley were involved in a motor vehicle accident. At the time of the accident Kelley was operating a tractor-trailer "rig." The tractor was owned by Currier, but the trailer attached thereto was owned by Merrill. Currier had previously leased its tractor with its operator, Kelley, to Merrill who, at the time of the accident, was using the leased equipment "exclusively" in its business. It is alleged that "at all times pertinent . . . Merrill . . . was a common carrier holding a certificate of public convenience and necessity from the Interstate Commerce Commission and operating under said certificate."

Weeks and his wife had commenced a civil action against Currier, seeking damages for injuries allegedly sustained as a result of Kelley's operation of the tractor-trailer, premised on the theory that Currier was vicariously liable for Kelley's negligent acts.

Subsequently, Currier filed a third party complaint against Merrill pursuant to Rule 14(a), M.R.C.P. As later amended, the complaint alleged that Merrill was liable to Currier "for any and all sums which may be recovered against . . . Currier . . . in favor of plaintiffs, Leland E. Weeks, Sr., and Mildred Weeks."

On the day set for trial of the plaintiffs' action against Currier, the Weekses accepted the sum of $70,664.07 in full settlement of their claims. 1 Currier then further amended its third party complaint to allege the fact that this settlement had been made "with the consent . . . and . . . approval" of Merrill, and demanded judgment against Merrill in the amount of the settlement. After a hearing Merrill's 12(b)(6) motion to dismiss the amended complaint was granted, and it is this ruling that forms the basis of Currier's appeal.

It is Currier's contention that regulations promulgated by the Interstate Commerce Commission (ICC), as well as the language of its lease with Merrill, give it the right to recover from Merrill the amount of the settlement. Merrill, on the other hand...

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7 practice notes
  • 484 N.W.2d 728 (Mich.App. 1992), 122204, Paul v. Bogle
    • United States
    • Michigan Court of Appeals of Michigan
    • June 22, 1992
    ...802, 394 N.E.2d 1179 (1979); Matkins v. Zero Refrigerated Lines, Inc., 93 N.M. 511, 516-517, 602 P.2d 195 (App.1979); Weeks v. Kelley, 377 A.2d 444, 447 (Me., 1977); Bankers & Shippers Ins. Co. of New York v. Watson, 216 Va. 807, 810-811, 224 S.E.2d 312 (1976); Wellman v. Liberty Mutual......
  • 602 P.2d 195 (N.M.App. 1979), 3449, Matkins v. Zero Refrigerated Lines, Inc.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 26, 1979
    ...of the lessee to the worker as that liability might be affected by a claim for workmen's compensation benefits. In Weeks v. Kelley, 377 A.2d 444 (Me.1977), the court held that the common carrier-lessee was liable, as a matter of law, for any negligence attributable to the driver while opera......
  • Insurance coverage and conflicting interpretations of the MCS-90.
    • United States
    • Defense Counsel Journal Vol. 74 Nbr. 4, October 2007
    • October 1, 2007
    ...49 U.S.C. [section] 13906(a)(1); 49 C.F.R. [section] 387.7(d) (2002). (144) Rebick v. Home, 878 F.2d 382 (6th Cir. 1989); Weeks v. Kelley, 377 A.2d 444, 447 (Me. 1977); Paul v. Bogle, 484 N.W.2d 728, 731 (Mich. Ct. App. 1992). (145) Transamerican Freight Lines, Inc. v. Brada Miller Freight ......
  • 400 A.2d 377 (Me. 1979), Billings v. Ralph E. Curtis & Son, Inc.
    • United States
    • Maine Supreme Judicial Court of Maine
    • April 19, 1979
    ...a finding that the licensed special employer had exclusive control of Cote's truck and necessarily the driver. In Weeks v. Kelley, Me., 377 A.2d 444 (1977), we consider the significance of 49 C.F.R. § 1057, which requires that a licensed carrier be in exclusive control of vehicles leased to......
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6 cases
  • 484 N.W.2d 728 (Mich.App. 1992), 122204, Paul v. Bogle
    • United States
    • Michigan Court of Appeal of Michigan (US)
    • June 22, 1992
    ...802, 394 N.E.2d 1179 (1979); Matkins v. Zero Refrigerated Lines, Inc., 93 N.M. 511, 516-517, 602 P.2d 195 (App.1979); Weeks v. Kelley, 377 A.2d 444, 447 (Me., 1977); Bankers & Shippers Ins. Co. of New York v. Watson, 216 Va. 807, 810-811, 224 S.E.2d 312 (1976); Wellman v. Liberty Mutual......
  • 602 P.2d 195 (N.M.App. 1979), 3449, Matkins v. Zero Refrigerated Lines, Inc.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • July 26, 1979
    ...of the lessee to the worker as that liability might be affected by a claim for workmen's compensation benefits. In Weeks v. Kelley, 377 A.2d 444 (Me.1977), the court held that the common carrier-lessee was liable, as a matter of law, for any negligence attributable to the driver while opera......
  • 400 A.2d 377 (Me. 1979), Billings v. Ralph E. Curtis & Son, Inc.
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • April 19, 1979
    ...a finding that the licensed special employer had exclusive control of Cote's truck and necessarily the driver. In Weeks v. Kelley, Me., 377 A.2d 444 (1977), we consider the significance of 49 C.F.R. § 1057, which requires that a licensed carrier be in exclusive control of vehicles leased to......
  • 585 S.W.2d 419 (Ky.App. 1979), Home Indem. Co. v. St. Paul Fire & Marine Ins. Co.
    • United States
    • Kentucky Court of Appeals of Kentucky
    • March 9, 1979
    ...L & B for liability purposes, despite language in the insurance policies and the lease to the contrary. Weeks v. Kelley, Me.1977, 377 A.2d 444; Cosmopolitan, supra; Mellon, supra. As the trial judge observed, both the lease and the insurance policies were written to comply with ICC......
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1 books & journal articles
  • Insurance coverage and conflicting interpretations of the MCS-90.
    • United States
    • Defense Counsel Journal Vol. 74 Nbr. 4, October 2007
    • October 1, 2007
    ...49 U.S.C. [section] 13906(a)(1); 49 C.F.R. [section] 387.7(d) (2002). (144) Rebick v. Home, 878 F.2d 382 (6th Cir. 1989); Weeks v. Kelley, 377 A.2d 444, 447 (Me. 1977); Paul v. Bogle, 484 N.W.2d 728, 731 (Mich. Ct. App. 1992). (145) Transamerican Freight Lines, Inc. v. Brada Miller Freight ......