Chiquita Fresh N. Am., L.L.C. v. Greene Transp. Co.
| Decision Date | 07 June 2013 |
| Docket Number | No. C–11–06683 DMR.,C–11–06683 DMR. |
| Citation | 949 F.Supp.2d 954 |
| Court | U.S. District Court — Eastern District of California |
| Parties | CHIQUITA FRESH NORTH AMERICA, L.L.C., Plaintiff, v. GREENE TRANSPORT COMPANY, John Greene Logistics Company, and Does 1 through 10, inclusive, Defendants. |
OPINION TEXT STARTS HERE
Robert M. Bodzin, Alison F. Greene, Raymond A. Greene, III, Burnham Brown a Professional Corporation, Oakland, CA, for Plaintiff.
Dirk Donald Larsen, Low Ball & Lynch, Elisa Rhein Marcaletti, Phillips, Spallas & Angstadt, San Francisco, CA, for Defendants.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [DOCKET NO. 53]
Before the court is the motion for partial summary judgment filed by Plaintiff Chiquita Fresh North America, L.L.C. (“Plaintiff” or “Chiquita”). Plaintiff moves the court to enter summary judgment in favor of Plaintiff and against Defendant Greene Transport Company (“GTC”) on the First and Second Causes of Action in Plaintiff's First Amended Complaint (“FAC”) [Docket No. 33].1 For the reasons stated below, the motion is granted in part and denied in part.
Plaintiff and GTC entered a Carrier Agreement through which GTC agreed to transport Plaintiff's products. The Carrier Agreement became effective June 15, 2009, and was in effect on the dates relevant to this case, namely August 31, 2010 and September 1, 2010. The Carrier Agreement identifies Plaintiff as “Chiquita” and GTC as “Carrier.”
Article 6 of the Carrier Agreement requires GTC to defend and indemnify Plaintiff under certain circumstances:
INDEMNITY. [GTC] shall indemnify, defend and hold Chiquita ... harmless from and against all damages, losses, costs, claims, injunctive relief, fines, penalties, settlements, charges and expenses (including attorneys' fees, expenses, disbursements and court costs), and all other expenses relating to or arising from all claims of every nature or character (including, without limitation, claims for personal injury, death and damage to property) ... arising out of or in connection with the loading, handling, transportation, unloading or delivery of any shipment under this Agreement by [GTC] or any substitute service provider providing transportation services to Chiquita pursuant to this Agreement.
Docket No. 53–1 at Ex. A (“Carrier Agreement”) at art. 6. The remainder of the Article addresses the defense and indemnity obligations of any “substitute service provider”:
Without limiting the generality of the foregoing, [GTC] agrees that if [GTC] uses a substituted service for the transport of any Goods for or on behalf of Chiquita, [GTC]'s agreement with such substitute service provider shall contain the substitute service provider's agreement to indemnify, defend and hold Chiquita and its agents and employees harmless from and against all indemnified Claims arising out of or in connection with the loading, handling, transportation, unloading or delivery of any shipment under this Agreement by the substitute service provider.
Paragraph 9.1 of the Carrier Agreement governs GTC's obligation to maintain insurance coverage:
Insurance Policies. At all times during the term of this Agreement, [GTC] shall maintain and keep in force the following insurance coverage:
(A) General Liability Insurance for Comprehensive and Contractual Coverage with a minimum of liability of $2,000,000 per occurrence. Chiquita and its Affiliates shall be named as additional insureds. There may be no self insured retention or deductible without the prior written consent of Chiquita.
(B) Automobile Liability for non-owned autos with a minimum liability of $2,000,000 per occurrence. Chiquita and its Affiliates shall be named as additional insureds. There may be no self insured retention or deductible without the prior written consent of Chiquita.
Carrier Agreement at ¶ 9.1. Paragraph 9.4 governs the insurance coverage that subcontractors must provide:
Subcontractors. [GTC] represents and warrants that any subcontractors utilized by [GTC] shall maintain insurance coverage in the minimum amounts set forth in this Agreement, and [GTC] agrees to indemnify and hold Chiquita harmless from and against any loss or liability incurred by Chiquita arising from the failure of any subcontractor of [GTC] to maintain said insurance in accordance with this Section 9.4. Upon request, [GTC] shall provide Chiquita evidence that any subcontractors utilized by Carrier maintain insurance coverage in the minimum amounts set forth in Section 9.1.
Paragraph 3.5 of the Carrier Agreement addresses GTC's use of subcontractor or substituted services for Plaintiff's goods. It also addresses the insurance any provider of substitute services is required to maintain:
Subcontractors. [GTC] agrees not to interline, subcontract or use other motor carriers or brokers, or to use substituted services by rail for Chiquita's Goods without prior written agreement of Chiquita. Without limiting the foregoing, Chiquita hereby approves of [GTC]'s use of each of the subcontractors listed in Appendix C; provided, however, Chiquita may revoke its approval of one or more of such subcontractors in the event that such subcontractors fail to ship Chiquita's Goods in accordance with the terms of this Agreement. When for [GTC]'s convenience, [GTC] elects to use a pickup or delivery agent to serve a point it is authorized to serve, [GTC] may do so at its expense, in which case [GTC] shall continue to be fully liable for any loss, damage or delay to said shipments. In the event [GTC] uses a substituted service of any type, with or without Chiquita's permission, [GTC] agrees to remain liable for any loss, damage or delay to Chiquita's Goods incurred in transit to the same extent that [GTC] would be liable if it performed the transportation directly, and to require any provide of substitute services to maintain the types and amounts of insurance required to be maintained by [GTC] pursuant to Article 9 below.
The Carrier Agreement states that its provisions shall be construed according to Ohio law, and that claims arising under it shall be brought in California:
Governing Law. The provisions of this Agreement shall be construed and enforced according to the laws of the State of Ohio, without giving effect to principles of conflict of laws, to the extent that the former are not inconsistent with the applicable federal or state regulatory laws binding upon Carrier. All controversies and claims arising hereunder, and all actions and proceedings to enforce this Agreement, shall be brought in the State of California.
GTC provided Plaintiff with a Certificate of Insurance dated February 26, 2009 (“2009 Insurance Certificate”). Plaintiff received the 2009 Insurance Certificate about a week after it was issued. The Certificate indicated that Plaintiff was an additional insured on the Automobile Liability policy issued to GTC by Northland Insurance Company (“Northland”). The Automobile Liability policy covers only specifically listed automobiles.
GTC provided Plaintiff with a Certificate of Insurance dated February 26, 2010 (“2010 Insurance Certificate”). Plaintiff received the 2010 Insurance Certificate about a week after it was issued. As with the 2009 certificate, the 2010 certificate indicated that Plaintiff was an additional insured on the Automobile Liability policy issued to GTC by Northland and that the Automobile Liability policy covered only specifically listed automobiles.
The parties do not point to any other insurance certificates, e.g., any general liability insurance policies meeting the requirement in Paragraph 9.1(A) of the Carrier Agreement, or any automobile liability policies covering non-owned autos.
On or about August 31, 2010, Plaintiff requested that GTC pick up a load consisting of 20 pallets of pineapples in Port Everglades, Florida and deliver them the following day to Forest Park, Georgia (the “August 31 haul”). GTC's own truck was unavailable, so GTC used its related company, JGLC, to broker another carrier. JGLC hired Ajax Logistics, Inc. (“Ajax”) to transport the pineapples. GTC has admitted that Ajax was a “substitute service provider,” as defined in Article 6 of the Carrier Agreement. According to Plaintiff's records, drivers from Ajax had picked up loads under the Carrier Agreement from Plaintiff's Port Everglades, Florida facility on 15 occasions between February 25, 2010 and August 31, 2010.
On August 31, 2010, Ajax transported the load out of the Port Everglades facility. On September 1, 2010, in the course of transporting the load, Ajax had an accident (the “Accident”) in Osceola County, Florida, which resulted in the deaths of Cassandra Green and her son, Steven Holtzapple, Jr. The personal representatives of the decedents filed wrongful death actions in Florida state court, eventually naming Plaintiff, GTC, JGLC, Ajax, the driver and the purported owner of the truck as defendants in lawsuits that have since been consolidated. See Holtzapple v. Ajax et al., Case No. 10–CA–7095 AN (22) (Fla.Cir.Ct. Feb. 6, 2012) (“the Florida Action”).
GTC sent an invoice for the August 31 haul, which Plaintiff paid.
On or about November 21, 2010, Ajax's insurer Castlepoint Insurance Company (“Castlepoint”) filed a declaratory judgment action against Plaintiff and all potential plaintiffs and defendants in the Florida Action seeking declaratory judgment that Castlepoint owed no defense or indemnity obligation for any monies relating to the Accident. Castlepoint National Ins. Co. v. Ajax Logistics, Inc., et al., Case No. 10–CV–62266–MGC (S.D.Fla.[N.D.] 2010) (“the Castlepoint Action”).
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