Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC04257, Geoffrey T. Glass, Judge.
Tharpe & Howell, Shawn K. Elliott and Eric B. Kunkel for Cross complainant and Appellant.
Horvitz & Levy, David M. Axelrad, Karen M. Bray; Halas, Muhar, Parish & Arnett and Marc H. Garber for Cross defendant and Respondent.
FYBEL, J.
Introduction
Mesa Contracting Corporation (Mesa) performed soil remediation at an oil field being converted to another use. As part of the remediation, Mesa excavated and removed contaminated soil. Mesa did not use its own dump trucks and drivers to transport the soil, but used Leading Edge Trucking, Inc. (Leading Edge), to supply trucks and drivers. A driver employed by Leading Edge, George Armitage, Jr., negligently drove a dump truck into a pickup truck on the oil field, severely injuring the driver, Douglas C. Harp, who was driving the pickup truck. Harp sued and obtained a jury verdict finding Armitage and Leading Edge liable for negligence.
Leading Edge appealed from the judgment in a separate appeal. In Harp v. Armitage (Dec. 18, 2009, G040817) [nonpub. opn.], we affirmed the judgment against Leading Edge.
Armitage contends Mesa is responsible under the nondelegable duty doctrine for the damages imposed against him. The nondelegable duty doctrine under California law is this: “If... an individual or corporation undertakes to carry on an activity involving possible danger to the public under a license or franchise granted by public authority subject to certain obligations or liabilities imposed by the public authority, these liabilities may not be evaded by delegating performance to an independent contractor. The original contractor remains subject to liability for harm caused by the negligence of the independent contractor employed to do the work.” (Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 604 (Taylor).) Armitage argues the “franchise granted by public authority” invoking the nondelegable duty doctrine against Mesa is its motor carrier of property permit and registration under the Motor Carriers of Property Permit Act, Vehicle Code section 34600 et seq. (MCPPA). (Further code references are to the Vehicle Code unless otherwise specified).
Armitage waived the nondelegable duty doctrine as a factual issue by not timely submitting jury instructions and a special verdict form addressing the issue. He argues, nonetheless, we can resolve the nondelegable duty issue in his favor as a matter of law. We therefore address this issue: Is Mesa subject to the nondelegable duty doctrine as a matter of law for Armitage’s liability to Harp by virtue of Mesa’s license as a motor carrier under the MCPPA?
The answer is no, for reasons we will explain.
The MCPPA divides motor carriers into two groups: for hire carriers, which transport the property of others, and private carriers, which only transport their own property. (§ 34601, subds. (b), (d).) Private carriers are not subject to the nondelegable duty doctrine. (Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001, 1010-1011 (Hill Brothers).) In the case of either a for-hire carrier or a private carrier, section 34620, subdivision (a) requires a valid motor carrier permit issued by, and registration with, the Department of Motor Vehicles (DMV) to operate a commercial motor vehicle on a public highway. The evidence at trial did not establish Mesa had transported soil excavated at the oil field on a public highway. In denying Armitage’s motion for judgment notwithstanding the verdict (JNOV), the trial court found the excavated soil was transported entirely on private land.
Thus, it cannot be said as a matter of law that Mesa carried out soil remediation on the oil field under a franchise granted by public authority, namely, the MCPPA. Accordingly, Mesa is not responsible under the nondelegable duty doctrine as a matter of law for Armitage’s liability to Harp. We therefore affirm.
Facts
Aera Energy, Inc. (Aera), leased a large oil field in Yorba Linda and decided to convert it to residential development. Aera hired a subcontractor, The Industrial Company, to maintain and repair the oil field equipment and dismantle oil wells to prepare the site for development. Harp worked for The Industrial Company as a foreman of crews dismantling oil wells.
Sometime before November 2003, Aera hired Mesa, a grading contractor, to perform soil remediation at the oil field. Mesa’s tasks in conducting soil remediation at the oil field included excavating soil that might have oil in it and hauling the soil in dump trucks to “some place else.” Mesa itself performed the excavation. Mesa, a licensed motor carrier in California, used a trucking broker, R Trucking, to obtain dump trucks and drivers to haul the excavated soil. R Trucking, in turn, obtained trucks and drivers from trucking companies, including Leading Edge. Leading Edge had been providing trucks and drivers to the oil field for about eight years. Armitage was one of Leading Edge’s dump truck drivers assigned to the oil field.
Dump truck drivers at the oil field were supervised by Alan Freas, Mesa’s onsite foreman. Freas informed the drivers of their daily tasks, kept track of their hours, and patrolled the site to watch the drivers as they worked.
On November 26, 2003, Armitage drove a dump truck into a parked pickup truck driven by Harp. After the collision, the dump truck lost some traction, then pulled forward and struck the pickup truck again. Armitage backed up the dump truck, turned it around, and drove away. The dump truck was later found abandoned elsewhere on the oil field. As a result of the collisions, Harp suffered serious injuries to his neck and back, which ultimately required two surgeries.
Carl Sheriff, Harp’s accident reconstructionist expert, concluded: “Armitage was the primary cause of this accident by driving the dump truck unsafely with a child in the truck, being inattentive, and driving too fast for the conditions on a loose gravel soil pathway nearing or making a turn, and with a dump truck that, although it was very heavy, unloaded has less traction than if it were in fact loaded.”
Proceedings in the Trial Court
Harp sued Armitage, Leading Edge, Mesa, and Aera (not a party to the appeals) asserting motor vehicle negligence and general negligence. In the first cause of action, for motor vehicle negligence, Harp alleged Armitage negligently operated the dump truck, Leading Edge and/or Mesa employed Armitage, Leading Edge and/or Mesa owned the dump truck he drove and entrusted it to him, and Armitage was acting in the course and scope of his employment.
In the third cause of action, for general negligence, Harp alleged Leading Edge and Mesa negligently hired, trained, and supervised Armitage. In the fourth cause of action, also for general negligence, Harp alleged Leading Edge and Mesa were liable under a respondeat superior theory, and, “[w]hen the incident occurred, Defendant Armitage was carrying out his main purpose of driving a dump truck for his employer at the job site during work hours.”
Armitage cross complained against Mesa for indemnity, equitable apportionment, and declaratory relief. The cross complaint did not expressly allege indemnity based on the nondelegable duty doctrine.
The case was tried to a jury. On the special verdict form, the jury found (1) Leading Edge and Armitage were negligent, and their negligence was a substantial factor in causing Harp’s injuries; (2) Armitage was Leading Edge’s employee but was not acting in the course and scope of his employment; (3) Leading Edge was the owner of the dump truck and gave its unlimited permission to Armitage to use the dump truck; (4) Leading Edge was not negligent in entrusting the dump truck to Armitage; and (5) Mesa was negligent, but its negligence was not a substantial factor in causing Harp’s injuries. The jury also found Harp’s injuries caused plaintiff in intervention St. Paul Fire & Marine Insurance Company to make $330,000 of workers’ compensation payments.
The jury awarded Harp $1.425 million in economic damages and $400,000 in noneconomic damages. The jury assigned Armitage 70 percent fault, Leading Edge 25 percent fault, and Mesa 5 percent fault (even though the jury found Mesa’s negligence was not a substantial factor in causing Harp’s injuries). After the jury was discharged, the trial court reallocated Mesa’s 5 percent fault, assigning 3.5 percent to Armitage and 1.5 percent to Leading Edge.
Armitage moved for JNOV against Mesa based on the nondelegable duty doctrine. The trial court denied the motion, stating: “The issue of non delegable duty was not framed by the pleadings and not properly identified as an issue to be tried to the jury or the court. Further, the non delegable duty doctrine does not apply to shift liability to Mesa as a matter of law under the circumstances of this case. The evidence at trial did not show enough of the substance of the agreement between Mesa and Leading Edge to conclude that Mesa delegated any duties. The testimony was not conclusive to establish that a non delegable duty had been delegated. There was also insufficient evidence as to whether the public was in danger from moving the dirt, where the moving was completely within private property.”
Armitage timely appealed from the judgment and from “that portion of the Judgment” following the order denying his JNOV motion. (See Code Civ. Proc., § 904.1, subd. (a)(4) [order denying motion for JNOV directly appealable].)
Discussion
I. Armitage Waived the Nondelegable Duty Doctrine As a Jury Issue.
Mesa argues Armitage waived the issue of nondelegable duty by failing to timely present jury instructions and a special verdict form on the issue. We agree Armitage forfeited his nondelegable duty claim as a jury issue.
Armitage never submitted jury instructions on the nondelegable duty doctrine. (See Code Civ. Proc., § 607a [each party in a jury trial must submit proposed jury instructions “before the first witness is sworn” except instructions submitted “upon questions of law developed by the evidence and not disclosed by the pleadings”]; Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 171 [failure to offer instruction waives claim of error].) Belatedly, during a break in closing argument, Armitage’s counsel stated CACI Nos. 901 (status of common carrier disputed) and 902 (duty of common carrier) “could be used” but stopped short of requesting them, contending the issue could be decided without legal instruction based on the testimony of Ronald Smith, Mesa’s president. Armitage’s counsel also submitted a proposed special verdict form that included questions asking whether Mesa was a licensed motor carrier and whether Mesa had assigned its transportation duties to Leading Edge. The trial court correctly declined to use that verdict form, stating, “if you want [the jurors] to make a decision on whether [Mesa] is a common carrier or not, they have to be instructed on what that is.”
The issue whether Mesa was a common carrier (defined in Civil Code section 2168) was irrelevant. Armitage’s nondelegable duty argument was based on Mesa’s status as a licensed motor carrier as defined in Vehicle Code section 34601.
Armitage does not dispute he waived his claim under the nondelegable duty doctrine as a jury issue. He argues, however, he preserved for appellate review the issue of nondelegable duty by raising it in his trial brief, orally by counsel during closing argument, and in his motion for JNOV. He contends the facts relating to whether Mesa was subject to a nondelegable duty are undisputed and therefore the nondelegable duty claim may be decided on appeal as a matter of law.
Armitage argued in his motion for JNOV that Mesa was liable as a matter of law for Leading Edge’s negligence under the nondelegable duty doctrine because it was undisputed Mesa was a licensed motor carrier and had delegated its duties to Leading Edge. In denying the motion, the trial court found, “[t]he testimony was not conclusive to establish that a non delegable duty had been delegated” and “[t]here was also insufficient evidence as to whether the public was in danger from moving the dirt, where the moving was completely within private property.”
We conclude Armitage did preserve the issue of the nondelegable duty doctrine, but as a legal issue, not as a jury issue. We therefore consider Armitage’s claim under nondelegable duty doctrine only as a matter of law.
II. Motion for JNOV; Standard of Review
Because Armitage is presenting his nondelegable duty claim as a pure matter of law entitling him to judgment, his appeal is in effect a challenge to the order denying his motion for JNOV. “‘“A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” [Citation.]’” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877 878, italics added.)
In reviewing an order denying a motion for JNOV, we determine whether substantial evidence supported the verdict, viewing the evidence in the light most favorable to the party who obtained the verdict. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 227.) We resolve all conflicts in the evidence and draw all reasonable inferences in favor of the verdict, and do not weigh the evidence or judge the credibility of witnesses. (Murray’s Iron Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1285.) We review de novo legal issues such as statutory interpretation and application of statutory language to undisputed facts. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.)
III. Mesa Is Not Subject to the Nondelegable Duty Doctrine As a Matter of Law.
A. The Nondelegable Duty Doctrine
“The nondelegable duty doctrine addresses an affirmative duty imposed by reason of a person or entity’s relationship with others. Such a duty cannot be avoided by entrusting it to an independent contractor. [Citation.] Nondelegable duties may arise when a statute provides specific safeguards or precautions to insure the safety of others.” (Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 671-672.)
The California Supreme Court adopted the nondelegable duty doctrine in Taylor, supra, 17 Cal.2d 594. Justice Traynor, writing for the court, explained the doctrine as follows: “[I]f an independent contractor rather than master and servant relationship exists, the independent contractor usually is alone liable for his negligent acts. If, however, an individual or corporation undertakes to carry on an activity involving possible danger to the public under a license or franchise granted by public authority subject to certain obligations or liabilities imposed by the public authority, these liabilities may not be evaded by delegating performance to an independent contractor. The original contractor remains subject to liability for harm caused by the negligence of the independent contractor employed to do the work.” (Id. at p. 604.)
Taylor involved a garbage truck operated by an independent contractor who was working under contract with the defendant. The defendant operated as a garbage collector under a contract with the city. The garbage truck struck and severely injured a student on school property. (Taylor, supra, 17 Cal.2d at p. 598.) The Supreme Court concluded the defendant was liable under the nondelegable duty doctrine because the defendant “was franchised by the city to carry on an activity requiring the operation of large motor vehicles upon the public streets which clearly involved the risk of danger to the public.” (Id. at p. 604.) The court stated the city’s contract and ordinance “fix a liability upon the [defendant] which it cannot escape by delegating performance to an independent contractor.” (Id. at pp. 604 605.)
In adopting the nondelegable duty doctrine, the Taylor court relied on section 428 of the Restatement of Torts, which read, “[a]n individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” The Taylor rule differs from the Restatement of Torts, section 428 in one respect. The Restatement of Torts, section 428 imposed a nondelegable duty when the activity can “only” be conducted under a franchise granted by public authority. The Taylor rule more broadly imposed a nondelegable duty whenever the activity is conducted “under a license or franchise.” (Taylor, supra, 17 Cal.2d at p. 604.)
There were no substantive changes in language in section 428 in Restatement Second of Torts. (See Hill Brothers, supra, 123 Cal.App.4th at p. 1008, fn. 3.)
Section 424 of the Restatement Second of Torts extends the nondelegable duty doctrine to “[o]ne who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others” and would render that person “subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.” While section 424 might be applicable to tasks involved in soil remediation of an oil field, Armitage does not assert the nondelegable duty doctrine extends to Mesa as a result of safety, workplace, or hazardous materials safety regulations. Further, the Taylor court adopted only the nondelegable duty doctrine stated in section 428 of the Restatement of Torts.
The first California decision to apply the nondelegable duty doctrine to motor carriers was Eli v. Murphy (1952) 39 Cal.2d 598. That case involved a tractor and semitrailer driven by an independent contractor operating under a contract with California Motor Transport Company, a highway common carrier licensed by the Public Utilities Commission under the predecessor statute to the MCPPA. In concluding the contractor was subject to the nondelegable duty doctrine, the Supreme Court explained the reason for extending the doctrine to a licensed motor carrier: “The effectiveness of safety regulations is necessarily impaired if a carrier conducts its business by engaging independent contractors over whom it exercises no control. If by the same device it could escape liability for the negligent conduct of its contractors, not only would the incentive for careful supervision of its business be reduced, but members of the public who are injured would be deprived of the financial responsibility of those who had been granted the privilege of conducting their business over the public highways. Accordingly, both to protect the public from financially irresponsible contractors, and to strengthen safety regulations, it is necessary to treat the carrier’s duties as nondelegable.” (Eli v. Murphy, supra, 39 Cal.2d at pp. 599 601.)
B. The MCPPA
Armitage contends Mesa is subject to the nondelegable duty doctrine because it is a licensed motor carrier of property under the MCPPA, which requires certain motor carriers of property to register with the DMV and obtain a permit in order to conduct business on public highways. Section 34620, subdivision (a) states, in relevant part: “[N]o motor carrier of property shall operate a commercial motor vehicle on any public highway in this state, unless it... has registered with the department its carrier identification number... and holds a valid motor carrier permit.” (Italics added.) The MCPPA imposes safety regulations on licensed motor carriers by safety regulations. (See §§ 34623 [safety regulations; grounds for suspension of permit], 34505.6 [grounds for suspension or revocation of permit].)
Section 34621, subdivision (b)(4) requires the application for a motor carrier permit to include the “number of commercial motor vehicles in fleet.” Under California Code of Regulations, title 13, section 1235.2(b)(10), the carrier records may provide information on the “types of regulated vehicles the carrier operates or transportation activities in which the carrier is engaged, referred to collectively as ‘types of operation.’”
Section 34601, subdivision (a) defines a “motor carrier of property” as “any person who operates any commercial motor vehicle.” A “commercial motor vehicle” is defined as a two axle truck weighing over 10,000 pounds or “any other motor vehicle used to transport property for compensation.” (§ 34601, subd. (c).)
Under the MCPPA, the class of motor carriers of property is divided between “for hire” carriers and “private” carriers. A for hire carrier is defined to mean a “motor carrier of property... who transports property for compensation.” (§ 34601, subd. (b).) A private carrier is defined as “a motor carrier of property, who transports only his or her own property, including, but not limited to, the delivery of goods sold by that carrier.” (§ 34601, subd. (d), italics added.)
The distinction between a for-hire carrier and a private carrier may be important to determining whether the nondelegable duty doctrine applies. In Hill Brothers, supra, 123 Cal.App.4th 1001, 1003, the court concluded private carriers are not subject to the nondelegable duty doctrine. Hill Brothers involved a distributor of chemicals having a motor carrier permit to distribute its own products. The distributor hired an independent contractor to deliver materials from its supplier, and the contractor negligently collided with a vehicle, killing the driver. (Id. at p. 1004.) The appellate court analyzed the MCPPA and its predecessor provisions of the Public Utilities Commission to conclude the nondelegable duty doctrine was not intended to apply to private carriers. (Hill Brothers, supra, at pp. 1006 1007.) The court explained: “[P]rior to the passage of the MCPPA, persons or corporations transporting their own property were specifically excluded from the definition of a ‘highway carrier,’ and the term ‘private carrier’ was separately defined as a ‘not for hire’ motor carrier.... [¶] In ‘clean up’ legislation passed in 1997, the Legislature expressed concern that the difference between ‘for hire’ and ‘private’ carriers should be more explicitly stated.... [¶] In 2000, the definition of ‘private carrier’ was further clarified. In a Senate Committee Report, the MCPPA was described as providing for ‘the regulation of certain for-hire motor carriers of property,’ and the Legislature’s intent was stated to be to ‘delete the obsolete statutory references and definitions relating to specified motor carriers in the Act.’ [Citation.] The report went on to state: ‘Currently, a “private carrier” is defined by what the carrier does not do, rather than what is done. This bill seeks to define private carriers in positive language, and to clarify that delivery of merchandise is private carriage....’” (Id. at p. 1007.)
C. Evidence at Trial
The only evidence regarding Mesa’s motor carrier licenses under the MCPPA was the testimony of Mesa’s president, Smith. He testified Mesa is a licensed motor carrier under the MCPPA because it has a single low bed truck used to transport its own equipment from jobsite to jobsite.
Based on Smith’s testimony, Mesa argues it was a private carrier under the MCPPA and, under Hill Brothers, was not subject to the nondelegable duty doctrine. But the particular vehicle for which the license was obtained does not determine whether the licensee is a private carrier or for hire carrier. Section 34620, subdivision (a), by referring to registration by a motor carrier and to “motor carrier permit,” suggests that the permit granted by the DMV is applicable to the carrier itself, not to the carrier’s particular vehicle. The MCPPA does not create separate licenses for for hire and private carriers. Thus, even if Mesa needed and obtained the permit to haul its own equipment in its low bed truck, it nonetheless would qualify as a for hire carrier if it transported the property of others for compensation (§ 34601, subd. (b)) on public highways (§ 34620, subd. (a)).
Armitage argues the distinction between private and for hire carriers is irrelevant either because licensing under the MCPPA is enough to invoke the nondelegable duty doctrine as a matter of law, or because the evidence established Mesa is a for hire carrier. Armitage argues Mesa qualifies as a for hire carrier because its tasks in conducting soil remediation included hauling contaminated soil belonging to others (Aera and its landlord) in dump trucks qualifying as commercial motor vehicles under section 34601, subdivision (c). Smith testified Mesa delegated its duties for transporting dirt on the oil field to R Trucking and then to Leading Edge.
Under section 34620, subdivision (a), registration and a valid motor carrier permit are only required for a carrier of property to operate a commercial vehicle “on any public highway.” In denying Armitage’s motion for JNOV, the trial court found, “[t]here was also insufficient evidence as to whether the public was in danger from moving the dirt, where the moving was completely within private property.” Armitage failed to present evidence or elicit testimony conclusively establishing that soil excavated at the oil field was ever transported on a public highway. Thomas Bjerkreim, Aera’s onsite supervisor, was asked whether excavated soil was transported to some other location on the oil field. He answered: “No. They were taking it some place else. I am not sure where they were taking it.” He did not testify the soil was transported on a public highway. No other testimony was presented on whether excavated soil was transported on a public highway or the location to which soil was transported.
Because the evidence did not conclusively establish Mesa transported excavated soil on a public highway, it cannot be said as a matter of law Mesa carried out its tasks of excavating and transporting soil at the oil field under its motor carrier permit and registration under the MCPPA. (§ 34620, subd. (a).) We therefore cannot conclude, as a matter of law, Mesa was subject to the nondelegable duty doctrine for its activities in transporting soil excavated at the oil field.
The court in Eli v. Murphy reasoned the nondelegable duty doctrine should be extended to motor carriers conducting their business over public highways to “protect the public from financially irresponsible contractors” and to “strengthen safety regulations.” (Eli v. Murphy, supra, 39 Cal.2d at p. 600.) Those concerns do not arise when a motor carrier is transporting property entirely on private property.
Disposition
The judgment is affirmed. Respondent to recover costs incurred on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.