Murray v. Briggs

• Decision Date: 27 September 1990
• Docket Number: 89-47,89-734 and 89-775,Nos. 88-2476,89-46,s. 88-2476
• Citation: 569 So.2d 476
• Parties: 15 Fla. L. Weekly D2412 William L. MURRAY, etc., et al., Appellants/Cross-Appellees, v. Robert A. BRIGGS, et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 476

569 So.2d 476

15 Fla. L. Weekly D2412

William L. MURRAY, etc., et al., Appellants/Cross-Appellees, v. Robert A. BRIGGS, et al., Appellees/Cross-Appellants.

Nos. 88-2476, 89-46, 89-47, 89-734 and 89-775.

District Court of Appeal of Florida Fifth District.

Sept. 27, 1990.

Rehearing Denied Nov. 15, 1990.

Edward A. Perse of Horton, Perse & Ginsberg and Nance, Cacciatore & Sisserson, Miami, for William L. Murray.

Lora A. Dunlap of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for Hughes Supply, Inc.

Jerry H. Jeffery of Jeffery & Thomas, P.A., Maitland, for Bennett Truck Equipment, Inc.

J. David Walsh and Keith C. Warnock of Cameron, Marriott, Walsh & Hodges, P.A., Daytona Beach, for Robert A. Briggs.

GRIFFIN, Judge.

This personal injury action arose out of a collision between a light pickup truck and a flat-bed delivery vehicle on February 14, 1986. Defendant, Robert A. Briggs ("Briggs"), was operating a Nissan pickup truck at approximately 1 p.m. on U.S. Route 192 in Brevard County, Florida. A friend, Stephen Murray ("Murray"), was his passenger. Briggs became distracted and rear-ended a lawfully stopped flat-bed delivery truck owned by Hughes Supply, Inc. ("Hughes Supply"). The flat-bed truck owned by Hughes Supply had no underride protection and the Nissan pickup was moving with sufficient speed and force that it continued under the bed of the Hughes Supply truck for approximately six feet, resulting in the compromise of the Nissan cab. Murray was severely injured.

Murray, through his guardian ad litem, William L. Murray ("plaintiff"), sued Briggs, Hughes Supply, and Bennett Truck, the alleged manufacturer of the Hughes Supply vehicle. Plaintiff alleged Hughes Supply and Bennett Truck were negligent for not putting a bumper on the truck that would prevent or lessen injury to vehicles impacting with the rear. The jury rendered a verdict in favor of the plaintiff against Briggs but found no liability on the part of Hughes Supply or Bennett Truck.

The threshold issue in this case is whether, at the time the accident occurred, the Hughes Supply truck was engaged in "interstate commerce" for purposes of application of the Federal Motor Carrier Safety Regulations, originally promulgated by the Bureau of Motor Carriers of the Interstate Commerce Commission ("I.C.C.") ¹ under the Federal Motor Carriers Act ("MCA"). ² Among these safety regulations is 49 C.F.R. § 393.86, entitled "Rear End Protection", which provides that a regulated motor vehicle whose body or chassis assembly is more than 30 inches from the ground has to be provided with a "substantially constructed and firmly attached" bumper affording rear end protection (an "I.C.C. bumper"). ³ Plaintiff contends that the Hughes Supply vehicle was an MCA regulated vehicle required to have an I.C.C. bumper and that noncompliance with the rear end protection regulation was evidence of negligence or negligence per se. Although the regulation was extensively discussed during the trial, the trial court ruled that the regulation did not apply to the Hughes Supply truck; thus, the plaintiff was not allowed an instruction that failure to use an I.C.C. bumper was evidence of negligence or negligence per se.

Under the MCA, the test to determine whether goods are moving in intra or interstate transit focuses on the "essential character" of the shipment. Texas & N.O.R. Co. v. Sabine Tram Co., 227 U.S. 111, 122, 33 S.Ct. 229, 233, 57 L.Ed. 442, 447 (1913). Crucial to a determination of the essential character of a shipment is the shipper's fixed and persisting intent at the time of shipment. Unquestionably, a factor to take into account in determining the "fixed and persisting intent" of the shipper is whether, at the time the transportation commenced, a specific interstate destination for the shipment was definitely planned. Middlewest Motor Freight Bureau v. I.C.C., 867 F.2d 458, 460-61 (8th Cir.), cert. denied, Missouri Div. of Transp. v. I.C.C., 493 U.S. 890, 110 S.Ct. 234, 107 L.Ed.2d 185 (1989). Intent, however, is ascertained from all the facts and circumstances surrounding the transportation, including the presence (or absence) of certain indicia of "through carriage" such as through billing, uninterrupted movement, continuous possession by the carrier or unbroken bulk. See, e.g., Texas v. United States, 866 F.2d 1546, 1556 (5th Cir.), reh. denied, 874 F.2d 812 (5th Cir.1989). The shipper's expressed intent also appears relevant. Pittsburgh-Johnstown-Altoona Express, Inc., MC-C-30129, (I.C.C. Slip, February 6, 1990). Different factors may be important in certain types of cases but not in others. See Calif. Trucking Ass'n v. I.C.C., 900 F.2d 208, 212 (9th Cir.1990). Applying the relevant factors to the case before us, we conclude that the Hughes Supply truck involved in this accident was involved in "intrastate", not "interstate", commerce and that the I.C.C. bumper regulation did not apply to the Hughes Supply truck at the time of this accident.

Hughes Supply is engaged in the business of wholesale and retail distribution and sale of construction supplies in various locations in the southeast. The sales of Hughes Supply fall into three general categories: inventory sales, special orders, and direct sales. Over sixty percent of Hughes Supply's 1986 sales were out of inventory. Inventory items are bought and stored by Hughes Supply for indefinite periods of time until purchased by a customer. Delivery to customers is provided by Hughes Supply, which maintains regularly scheduled deliveries to various parts of Florida.

Approximately twenty-five percent of Hughes Supply's 1986 sales were direct sales. In a direct sale, the manufacturer ships the goods directly to the customer and Hughes Supply is not involved in delivery of the purchased items.

Roughly fifteen percent of Hughes Supply's 1986 sales were special order sales, consisting of items Hughes Supply either did not maintain in regular inventory or which were out of stock. A special order is one in which Hughes Supply receives a specific order from a specific customer and obtains the item from the manufacturer. Such orders are placed by Hughes Supply in its own name. The manufacturer, who does not know the identity of the Hughes Supply customer or that it is a special order, ships directly to Hughes Supply. The invoices or bills of lading bear the Hughes Supply name as the ultimate purchaser and Hughes Supply is ultimate destination. Hughes Supply takes title to the items and bears the risk of loss once they are delivered to the Hughes Supply warehouse. Such special order items are received in the Hughes Supply warehouse and sometimes opened, checked, or repackaged. They are always redocumented with new invoices.

The record reveals that Hughes Supply maintains two fleets of trucks--one for its intrastate activities, another for interstate transport. Truck # 625, the truck involved in this accident, was part of the intrastate fleet, assigned to the water and sewer branch of Hughes Supply, delivering both special order and stock items according to the regular delivery schedule. The record indicates that Hughes Supply intended these deliveries to be local, not interstate commerce, and believed the Federal Motor Carrier Safety Regulations were inapplicable to these in-state deliveries.

On the day of the accident, an employee of Hughes Supply in the water and sewer branch was using truck # 625 to make the regularly scheduled (Monday/Wednesday/Friday) delivery to Brevard and Indian River Counties. Hughes Supply does not maintain records of what items were delivered on any particular truck on any given day, and the driver could recall only one delivery he made on February 14. He testified that, when the accident occurred at approximately 2 p.m., he had only one delivery left to make, to H.E. Miller, Inc., in Rockledge. After the accident, he was able to make the delivery and return to Orlando, where he clocked out at 4:18 p.m.

By spot checking invoices billed on February 18, 1986, the manager of the water and sewer branch of Hughes Supply was able to identify a few other delivery orders that were on truck # 625 on the day of the accident. One of the items he found was a special order for three one and one-half inch couplings, costing $44.89, placed by a Brevard County customer, Fearon Construction Company, on February 10, 1986. According to the documentation, Hughes Supply placed the order with Mueller Company in Decatur, Illinois on February 11, 1986. The item was shipped to Hughes Supply by overnight air freight and was received by Hughes Supply on February 12, 1986. The invoice from Mueller showed Hughes Supply as the purchaser. The item was delivered by Hughes Supply to Fearon on February 14, the next regular delivery run to Brevard County.

The appellant contends, in essence, that Hughes Supply's practice of mingling special order and inventory items on delivery vehicles, and more particularly, the presence of the Fearon Construction order on truck # 625 on the day of the accident, establishes the Hughes Supply truck was "in interstate commerce." However, Hughes Supply's knowledge that it had a Florida purchaser for these three one and one-half inch couplings at the time they were ordered from out of state does not necessarily make the truck that delivers them to the local customer an interstate motor carrier. In this case, all other pertinent factors militate against the Hughes Supply truck being engaged in interstate commerce at the time of the accident.

Over seventy percent of the items carried by the Hughes Supply intrastate fleet of trucks are items stocked in inventory. A pertinent example would be the one delivery the Hughes Supply driver had left to make at the time of the accident. The record indicates the goods for that delivery had been shipped into Hughes Supply's inventory (from out of state) on various dates, one as long as four months earlier....