Brocklesby Transport, a Div. of Kingsway Transports, Ltd. v. Eastern States Escort Services, 1155
| Decision Date | 21 May 1990 |
| Docket Number | No. 1155,D,1155 |
| Citation | 904 F.2d 131 |
| Parties | BROCKLESBY TRANSPORT, A DIVISION OF KINGSWAY TRANSPORTS, LTD., and Cooper Energy Services, Ltd., Plaintiffs-Appellants, v. EASTERN STATES ESCORT SERVICES, Defendant-Appellee. EASTERN STATES ESCORT SERVICES, Third-Party Plaintiff, v. NICKLE CITY ESCORT SERVICE, B & M Pilot Car Service and Joan Goldhahn, as Executrix of Hartmut Goldhahn, Third-Party Defendants. ocket 90-7011. |
| Court | U.S. Court of Appeals — Second Circuit |
Francis A. Montbach, Bigham Englar Jones & Houston, New York City, for plaintiffs-appellants.
Edwin L. Smith, Kenneth J. Klein, Smith & Laquercia, New York City, for defendant-appellee.
Before MESKILL, CARDAMONE and PIERCE, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Southern District of New York, Keenan, J., granting defendant-appellee Eastern States Escort Services' (Eastern) motion for summary judgment and dismissing the complaint of plaintiffs-appellants Brocklesby Transport (Brocklesby) and Cooper Energy Service, Ltd. (Cooper), which sought damages arising from a truck's unfortunate encounter with a bridge overpass. The questions raised on appeal are whether on summary judgment the district court properly determined that Brocklesby is precluded from seeking indemnification from Eastern because Brocklesby was in part at fault for the accident and whether Cooper is barred from recovering from Eastern because it subrogated its claims against Eastern to its insurer.
In November 1984, Brocklesby, a motor carrier of goods, contracted with Cooper, a manufacturer and seller of turbine equipment, to transport one of Cooper's turbines from Ontario, Canada to Port Elizabeth, New Jersey. Because the turbine was an oversized shipment, Brocklesby contracted with Eastern to map out a route through New York and New Jersey and to provide an escort vehicle. Eastern in turn subcontracted with third-party defendants Nickle City Escort Service (Nickle City) and B & M Pilot Car Service (B & M) to provide the escort.
Eastern prepared a route based on information provided by Brocklesby that the load would be fourteen feet, seven inches high. Third-party defendant Hartmut Goldhahn, whom Brocklesby hired to deliver the cargo using his tractor-trailer, allegedly measured the load at fourteen feet, four inches when he first picked up the load. Jerry Coate, who drove the lead escort car for Nickle City, allegedly also measured the load at fourteen feet, four inches. Coate set a height pole on the lead car on the basis of this measurement.
The convoy deviated from the route prepared by Eastern, purportedly because the route included low bridges. After leaving the prepared route, the lead car passed under a bridge near Monroe, New York. Coate is alleged to have instructed Goldhahn that he could clear the bridge, but that he should slow down. However, the load hit the bridge when Goldhahn attempted to pass under it, causing damage to the turbine.
After the collision, Cooper submitted to its insurer, Arkwright-Boston Manufacturers Mutual Insurance Company (Arkwright), a claim for the damage to the turbine in the amount of $188,598.85 Canadian. Arkwright paid Cooper $166,084.85 Canadian, in exchange for a subrogation receipt assigning its claims for damages to Arkwright to the extent of the amount paid.
Arkwright subsequently made a claim against Brocklesby, and Brocklesby's insurer, Royal Insurance Company (Royal), paid $134,200 Canadian to Arkwright on behalf of Brocklesby and Goldhahn. Arkwright executed a release, transferring its rights to any claim arising out of the incident to Royal and releasing its claims against Brocklesby and Goldhahn.
Brocklesby and Cooper brought a diversity action in federal district court against Eastern for damages and indemnification. Eastern thereafter filed a third-party complaint against Hartmut Goldhahn, Nickle City and B & M.
On Eastern's motion for summary judgment, the district court dismissed Brocklesby's and Cooper's claims. It determined that, because "Brocklesby is not without fault in the resulting accident," it could pursue only contribution and not indemnification from Eastern. Moreover, the court concluded that Brocklesby was precluded from seeking contribution under New York law because it had transferred any such rights to Royal. Finally, the court determined that Cooper was barred from pursuing a claim against Eastern because it had subrogated its rights to Arkwright.
Brocklesby contends that the district court erred in construing its claim as The Goldhahn affidavit further stated that Coate, the driver of the lead car provided by Nickle City, and Goldhahn agreed, after meeting in Buffalo, New York, that the route planned by Eastern would lead them to low bridges. According to the affidavit, Coate then advised Goldhahn to take an alternate route. In contrast, Chatel's affidavit averred that had the planned route been followed, no accident would have occurred. The record thus reflects a genuine factual dispute over whether Brocklesby's fault, if any, contributed to the...
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