White v. L.L. Smith Trucking, 87-24
| Decision Date | 23 September 1987 |
| Docket Number | No. 87-24,87-24 |
| Citation | 742 P.2d 1286 |
| Parties | Keith O. WHITE, Appellant (Plaintiff), v. L.L. SMITH TRUCKING, a Wyoming corporation, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
John C. Hoard, Casper, for appellant.
David B. Hooper, Riverton, for appellee.
Stephen H. Kline and Bruce S. Asay of Kline, Buck & Asay, Cheyenne, amicus curiae, for Arrow Trucking.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
In this case, appellant Keith White, the owner of a truck and trailer, brought an action against appellee L.L. Smith Trucking, seeking a money judgment. Appellant sought any underpayment below a full eighty percent of the published tariff rate, plus interest and costs, for hauls appellant made for appellee under a lease agreement. The district court granted appellee's motion for summary judgment. On appeal appellant raises the following issues:
We will affirm.
In 1981 and again in 1982, appellant entered into a lease agreement with appellee. Both agreements provided that appellant was to receive "80% of the gross" for the lease of his truck to appellee. 1 Due to deteriorating economic conditions in the oil and gas industry, appellee bid for much of its work. These bids were made at a lower rate than the tariff would require of a common carrier. 2 Appellant's action is based upon the difference between the "80% of the gross" he was paid and what he would have been paid had appellee not bid the hauls, but charged the full tariff rate applicable to common carriers for such hauls.
Appellant claims that two issues of material fact existed that should have precluded summary judgment for appellee. These issues include whether appellee was acting as a contract carrier or common carrier, and whether competition existed between contract and common carriers on the jobs that were bid.
Our well-established standard of review on appeal from summary judgment is based upon a dual finding that no genuine question of material fact exists and that the prevailing party is entitled to judgment as a matter of law. A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact by affidavits or otherwise. When considering a motion for summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts. Rule 56, Wyoming Rules of Civil Procedure; and England v. Simmons, Wyo., 728 P.2d 1137 (1986). The movant must initially come forward with specific facts showing that no genuine issue of material fact exists. Once the party moving for summary judgment makes this showing, the burden shifts to the party opposing the motion to put forth specific facts evidencing the presence of a genuine issue of material fact. Rule 56(c), W.R.C.P.; and Bettencourt v. Pride Well Service, Inc., Wyo., 735 P.2d 722 (1987). Conclusory affidavits do not meet this burden. Greenwood v. Wierdsma, Wyo., 741 P.2d 1079 (1987).
Appellant argues that the statement made by Roger Smith, president of L.L. Smith Trucking, that appellee is "both a common and contract carrier," along with appellant's affidavit stating that appellee is a common carrier, is sufficient to raise the question of appellee's carrier status. These statements do nothing more, however, than reiterate the fact that appellee is a licensed common carrier, and that such license was in effect at the time the hauls were made. Appellee is both a common and contract carrier; therefore, merely stating that appellee is a common carrier does not raise an issue as to which authority appellee was operating under. Neither the affidavit nor the statement by Roger Smith demonstrates that appellee was operating under the common carrier license on the hauls in which White participated. Some further evidence is necessary to show that appellee was operating as a common carrier rather than a contract carrier on the pertinent hauls. Moreover, because the hauls were bid, and because the bids were made against other contract carriers, it is reasonable to assume that appellee was acting as a contract carrier. After reviewing these facts, we hold appellant's proof in opposition to the summary judgment was not sufficient to raise a genuine issue of material fact.
Appellant argues in the alternative, that if appellee was acting as a contract carrier, it was required to charge the full tariff rate according to § 37-8-108, W.S.1977. That section provides in part:
" * * * If the operations of any contract carrier are in competition with the kind and class of service rendered by any common motor carrier, the commission shall require such contract carrier to charge a rate of fare not less than common motor carriers are required to charge for the same service on such route. * * * " 3
The affidavit of the employee who bid the jobs, Harold Sinner, general manager of L.L. Smith Trucking, states that he had examined all of appellee's books and records and determined that no...
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