Gamboa v. Conti Trucking, Inc., B
Decision Date | 19 October 1993 |
Docket Number | No. B,B |
Citation | 23 Cal.Rptr.2d 564,19 Cal.App.4th 663 |
Court | California Court of Appeals Court of Appeals |
Parties | Araceli GAMBOA, et al., Plaintiffs and Appellants, v. CONTI TRUCKING, INC., et al., Defendants and Respondents. 069314. |
Gutierrez & Gutierrez, Jesse J. Banuelos and Oscar H. Gutierrez, Los Angeles, for plaintiffs and appellants.
Liebman, Reiner & McNeil, Liebman, Reiner, McNeil & Walsh, Joseph R. Zamora, Los Angeles, Kevin H. Louth, McIntosh, Schmidt & Long, Pasadena, and Eldred O. Arthur, Riverside, for defendants and respondents.
Roberto Gamboa was killed when he was struck, while riding his bicycle, by a tractor-trailer owned by the Fred Alberg Trucking Company (Alberg Trucking) and driven by its employee, Leland Ray Demele. At the time of the accident, Alberg Trucking was subhauling freight for Conti Trucking, Inc. (Conti Trucking). Appellants, Araceli Gamboa (Roberto Gamboa's widow) and her three minor daughters, brought a wrongful death action against respondents Alberg Trucking, Fred Alberg as an individual, Leland Ray Demele and Conti Trucking.
Summary judgment was granted in favor of Conti Trucking and against appellants on the ground that Conti Trucking was not liable for the acts of Alberg Trucking. 1 Appellants filed this appeal after their motion for reconsideration was denied.
The controlling facts are not in dispute. Conti Trucking was licensed by the Public Utilities Commission as a highway common carrier. At the time of the accident, Conti Trucking had entered into a subhauler agreement with Alberg Trucking. Alberg Trucking was an independent contractor under the subhauler agreement. Alberg Trucking held a Public Utilities Commission permit to operate as a highway contract carrier. 2 Prior to entering into the subhauler agreement, Conti Trucking verified that Alberg Trucking had liability insurance of $250,000, the minimum amount required by Public Utilities Commission regulations.
Appellant contends that Conti Trucking, as a highway common carrier, could not delegate its duties to an independent contractor so as to escape liability for the independent contractor's negligence.
The nondelegable duty doctrine as to highway carriers was first stated in California by our Supreme Court in Eli v. Murphy (1952) 39 Cal.2d 598, 248 P.2d 756. The court there stated:
Conti Trucking contends that to the extent of any nondelegable duty imposed by Eli v. Murphy, Conti Trucking's vicarious liability was extinguished pursuant to Klein v. Leatherman (1969) 270 Cal.App.2d 792, 76 Cal.Rptr. 190.
Klein v. Leatherman involved a personal injury action arising out of a multi-vehicle collision. At the time of the accident, California State Shippers, whose employee negligently caused the injury, and whose Public Utilities Commission permit to operate as a contract carrier had been revoked and insurance had been cancelled, was subhauling goods for Leatherman, a contract carrier. 4 The trial court refused to find Leatherman vicariously liable for California State Shippers' negligence. The Court of Appeal reversed holding that Leatherman's duties of care were nondelegable even though he was a contract carrier and not a highway common carrier.
Conti Trucking relies on the following dicta in Klein v. Leatherman, supra: (270 Cal.App.2d at p. 796, 76 Cal.Rptr. 190.) Conti Trucking contends that if the primary carrier meets its obligation to ensure that the independent contractor carrier is licensed to haul freight on California highways and has the required amount of liability insurance, it has satisfied its nondelegable duty under Eli v. Murphy and any vicarious liability is extinguished.
The quoted excerpt Conti Trucking relies upon is not the holding of the case but is dicta. The holding of Klein v. Leatherman, supra, is an expansion of the nondelegable duty doctrine. The Court of Appeal recognized that one truck on the highway tends to be like any other and "[i]t is difficult to discern wherein classification of the operation on the highway as a privilege under franchise, or as a right under a permit, changes the degree of protection required." (270 Cal.App.2d at p. 795, 76 Cal.Rptr. 190.) Klein v. Leatherman appears to be the first and only reported opinion in California applying the rule of section 428 of the Restatement of Torts to a non-franchised highway contract carrier.
The quoted language relied upon by Conti Trucking does not state that the nondelegable duty is eliminated. It states that the "monetary liability under the nondelegable duty may be eliminated, or diminished, pro tanto." (Emphasis added.) This, of course, would follow since any amount a plaintiff may recover from a vicariously liable highway common carrier would be reduced by any payment made by or on behalf of the primary tortfeasor and eliminated completely...
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...authority'" within the meaning of Eli v. Murphy (1952) 39 Cal.2d 598, 599, fn. *, 248 P.2d 756, and Gamboa v. Conti Trucking, Inc. (1993) 19 Cal.App.4th 663, 666, fn. 3, 23 Cal.Rptr.2d 564. Hence, said the trial court, PLT is not liable for the negligence of Sky, an independent contractor. ......
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