Opinion
98 CV 7559 (ILG)
June 25, 2001
MEMORANDUM ORDER
This diversity action arises from a personal injury which plaintiff sustained on December 11, 1995, while he was attempting to close the rear cargo door of a tractor trailer that was leased by defendant to third-party defendant. Now before the court is defendant's motion for summary judgment as against plaintiff or, in the alternative, for contractual indemnification against third-party defendant, as well as plaintiff's motion for partial summary judgment as against defendant. For the reasons that follow, defendant's motion for summary judgment and motion for indemnification, as well as plaintiff's cross-motion for partial summary judgment are denied.
BACKGROUND
The following facts are undisputed unless otherwise noted. From October 2, 1995 to January 29, 1996, defendant Xtra Lease leased trailer number 453934 to third-party defendant Commercial Trailer Leasing, Inc. ("CTL") pursuant to Equipment Rental Agreement number 0580022051. (Def.'s Exs. I F) CTL is based in Jersey City, New Jersey. Xtra Lease is a Delaware corporation engaged in the business of leasing or renting commercial trailers used in interstate commerce. Its principal place of business is St. Louis, Missouri. On the same day it leased the trailer from Xtra Lease, CTL subleased the trailer to Joseph Eletto Transfer Company ("Joseph Eletto"). Prior to doing so, CTL never took physical possession of, inspected, maintained or repaired the trailer. (Eisen Dep., 15-16, 18-19, 33-34, 41) Joseph Elleto is based in Great Neck, New York. According to plaintiff, Xtra Lease never issued a valid, written sublease to Joseph Eletto.
At the time of the accident, plaintiff Gary Roberts was employed by Joseph Eletto as a tractor trailer driver. On December 9, 1995, plaintiff drove a Mack tractor from Long Island City, New York to Woodbridge, New Jersey where he picked up the trailer and arrived in Cleveland, Ohio on the morning of December 10, 1995. There, he dropped off the trailer at a Seaman's warehouse, where the cargo door was opened and cargo was unloaded by temporary workers hired by Joseph Eletto. (Pl. Dep., 23-25, 72) On the following morning, December 11, 1995, plaintiff and his partner drove the trailer from their hotel in Cleveland to a loading area, where the trailer was loaded with carpets by other workers. Plaintiff and his partner went to breakfast and, upon their return, drove the trailer to Seaman's. There, plaintiff slept in the warehouse while the trailer was unloaded by Seaman's workers. (Id. at 73-76) After the trailer was unloaded, plaintiff, who planned to drive the trailer back to Woodbridge, New Jersey, came out alone to close the rear cargo door. (Id. at 76-77)
The rear cargo door of the trailer was a roll-up door with a locking handle in the middle at the bottom of the door which locked upon being closed. Another handle was located to the right which enabled someone wishing to close the door to pull it down. In addition, a strap, from which the door could be pulled down, hung from the bottom of the door. The floor of the trailer was approximately 4 feet off the ground, and the roof of the trailer was approximately 12.5 or 13.5 feet high. (Id. at 21, 28-29, 83-84)
In order to close the door, plaintiff had to climb up onto the rear of the trailer to pull the door down. To do so, he stepped with his right foot onto the "ICC" bar and placed his left hand on the side of the trailer. He then stepped onto the back of the trailer with his left foot and moved forward with his right foot onto the interior floor of the trailer. (Id. at 29-30) While plaintiff was standing on the floor of the trailer, he reached for the strap with his right hand and pulled it. The door came down suddenly with no resistance, "like a guillotine." (Pl. Aff. ¶ 2) As a result of the door's rapid downward motion, plaintiff had to jump off backwards from the rear of the trailer. Attempting to break his fall, plaintiff grabbed onto the back of the trailer. (Pl. Dep. 30-33, 86-89) When the door came crashing down, it nearly severed plaintiff's index and middle fingers, despite the fact that he was wearing leather work gloves. (Rep. of Baruch Toledano, M.D. dated Aug. 28, 1997) Plaintiff required surgery on his hand and was out of work for nine months.
Before the accident, plaintiff had never opened or closed the rear cargo door of this particular trailer. Having driven trucks for 20 years. however, he had opened and closed many trailer doors of this type and was aware that they were equipped with a device that provides tension on the door's cables, so that it descends slowly. When plaintiff first picked up the trailer on December 9, 1995, he inspected the tires, lights, and undercarriage of the trailer, but not the rear cargo door, which was closed. He never observed anyone open or close the cargo door or perform any repairs on it. Nor was plaintiff told that the door was malfunctioning. (Pl. Dep., 22, 24-28, 38-39, 83, 97)
On the morning of the accident, there were intermittent snow flurries. Plaintiff does not recall snow or ice on the trailer's "ICC" bar, but snow had been plowed off to the sides of the Seaman's parking lot. (Pl. Dep., 78, 85, 108) Plaintiff denies having ever told anyone that he slipped on ice prior to the accident (id. at 108), but in an accident report prepared by a manager at Joseph Eletto on December 12, 1995 plaintiff was reported to have slipped on snow or ice before the trailer door came down on his hand. (Def.'s Ex. H)
According to a manager for Xtra Lease, trailer number 453934 was inspected and repaired both before and after the accident — once on March 7, 1995 and once again on January 29, 1996. (Rizer Dep. 5-8, 13-14) During the March 7, 1995 inspection, a door handle, door roller and door hinge were replaced. During the January 29, 1996 inspection, a door hinge was refastened. (Id. at 7-8) Like a garage door, the rear cargo door of the trailer has a line of hinges running from top to bottom on the two sides of the door. (Id. at 8-9) In addition to these two inspections, the Equipment Rental Agreement issued by Xtra Lease indicates that the trailer was inspected both before and after the lease was issued. (Def.'s Ex. I) Although the Equipment Rental Agreement references a door hinge, Carl Rizer, an Xtra Lease manager, testified that no defect or damage to the rear door was noted on the report. (Rizer Dep., 13-15) In fact, Rizer noted that it is routine for the inspector to inspect the operation of the rear door, as he must open and close the door to access and seal the trailer. (Id. at 15) Rizer also testified that the device that controls the ascent and descent of the door is the "operator," a cylinder that houses a spring and is connected to the roof of the rear frame of the trailer. (Id. at 9-10) The operator can be disconnected or unfastened by removing a series of fasteners attached to the rear frame. If it is disconnected or unfastened, the operator drops down or disengages from the rear frame of the trailer. To disengage the operator, it is necessary to remove the fasteners. (Id. at 10-11) In addition to becoming disengaged, the operator also can be immobilized by the insertion of a specifically designed tool into a flywheel that is located on either end of the operator. (Id. at 11-12) Without the deliberate removal of the operator, the speed of the door apparently cannot be affected. The operator cannot accidentally come off track. (Id. at 12-13) In addition, when door hinges or rollers are repaired or refastened, there is no effect on the operation of the door. In its motion for summary judgment, Xtra Lease maintains that plaintiff has introduced no evidence that the trailer was in a defective condition at the time it was leased to CTL and accordingly cannot maintain an action in negligence against Xtra Lease.
Xtra Lease further seeks a determination with respect to its right to full indemnification by CTL in the event plaintiff recovers against it. The Equipment Rental Agreement between Xtra Lease and CTL is governed by "Standard Terms and Conditions," one of which provides that:
Lessee hereby agrees to indemnify Xtra Lease and hold Xtra Lease harmless from and against any and all loss or liability (including reasonable attorneys' fees) for injuries or damages to any person or property arising out of or incident to the use, possession or control of the Equipment by Lessee.
(Def.'s Ex. I, ¶ 6) In addition, the Equipment Rental Agreement provides that CTL, the Lessee, is obligated to procure:
Comprehensive General Liability coverage protecting Xtra Lease from and against all loss and damage it may sustain or suffer because of death or injury to any person, or damage to the property of any person, as a result of the use, possession or control of the Equipment by Lessee. Coverage must included minimum limits of $1 million general aggregate or $1 million each occurrence and include contractual coverage for hold harmless agreements. Xtra Lease must be shown as an additional insured.
(Id. at ¶ 7)
In conjunction with the Equipment Rental Agreement, CTL furnished a Certificate of Insurance which indicates that N.J. CAIP, the assigned risk plan in New Jersey, provided coverage to Xtra Lease as an additional insured Certificate Holder under an automobile liability policy issued to CTL which had a single limit coverage of one million dollars for the term running from December 2, 1995 to December 2, 1996. (Def.'s Ex. J) In the course of discovery, CTL provided Xtra Lease with policy number 1931C43637, dated December 21, 1994 and issued by Greater New York Mutual Insurance Company. The policy provides for commercial automobile coverage for Joseph Eletto, the named policy holder, but does not name Xtra Lease as an additional insured. (Def.'s Ex. K) Accordingly, Xtra Lease maintains that this policy violates the Equipment Rental Agreement. CTL, in contrast, avers that the Certificate of Insurance, which indicates coverage provided by N.J. CAIP, satisfied the Equipment Rental Agreement and that, in any event, Xtra Lease was obligated to advise the carrier of any lawsuits and seek indemnification and a defense of the lawsuit.
DISCUSSION
I. Standard Governing Summary Judgment Motions
Before examining the facts underlying this motion, it is important to recall the criteria by which a motion for summary judgment is determined. Summary judgment "shall be rendered forthwith if the pleadings, depositions . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "moving party is `entitled to judgment as a matter of law' [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). In deciding a summary judgment motion, a court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried.Eastman Mach. Co., Inc. v. U.S., 841 F.2d 469, 473 (2d Cir. 1988). A disputed fact is material only if it might affect the outcome of the suit under the governing law. A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986). "In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).
II. Xtra Lease's Motion for Summary Judgment
Plaintiff in this case premises Xtra Lease's purported liability on provisions of New York State and federal law. Under familiar New York state choice of law principles, "conduct-regulating rules of the jurisdiction where the tortious act occurred must be applied because that state has the `predominant, if not exclusive, concern' with the disposition of that issue." Diehl v. Ogorewac, 836 F. Supp. 88, 92 (E.D.N.Y. 1993) (quoting Babcock v. Jackson, 12 N.Y.2d 473, 483, 240 N.Y.S.2d 743 (1963)). However, where the conflict involves the allocation of losses between the parties, such as the availability of a complete or partial defense based on a passenger's use of a seatbelt, and, as here, the parties are domiciled in different jurisdictions, neither of which is the jurisdiction wherein the tort occurred, New York law provides that "the law of injury should normally control `but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.'" Id. at 93 (citing Neumeier v. Kuehner, 31 N.Y.2d 121, 128, 335 N.Y.S.2d 64 (1972)). New York law mandates displacement of the law of the state in which the injury occurred where New York has a superior interest in allocating the losses between the parties. Such a superior interest may be established where, as here, the state in which the tort occurred will not be benefitted or burdened by the outcome of the case as neither of the parties resides in that other state and where New York, on the other hand, "has a direct interest in the resolution of this issue because it directly impacts the recovery of a New York plaintiff." Id. at 93.
Plaintiff in this action attempts to impose liability on Xtra Lease by resorting to § 388 of New York's Vehicle Traffic Law, a post-accident loss-allocating rule. Schultz v. Boy Scouts of America, 65 N.Y.S.2d 189, 197, 491 N.Y.S.2d 90 (1985). Section 388(1) provides the following:
Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. Whenever any vehicles as hereinafter defined shall be used in combination with one another, by attachment or tow, the person using or operating any one vehicle shall, for the purposes of this section, be deemed to be using or operating each vehicle in the combination, and the owners thereof shall be jointly and severally liable hereunder.
N Y Vehicle Traffic Law § 388(1). According to the New York Court of Appeals, "§ 388 pertinently provides that the negligence of the user or operator of a motor vehicle is imputed to the owner." Mowczan v. Bacon, 92 N.Y.2d 281, 284, 680 N.Y.S.2d 431 (1998). Section 388(1) embraces tractor trailers within its definition of a vehicle id. at 283, and the loading and unloading a trailer is considered a "use or operation" under the statute. Stole v. U.S. Steel Corp., 34 Misc.2d 103, 227 N.Y.S.2d 595 (Nassau County Ct. 1962) (construing analogous § 59 of the VTL, the predecessor of § 388).
Although § 388 on its face requires a use or operation within New York, the statute has been interpreted to provide that the owner of a trailer may be vicariously liable for out of state accidents. Farber v. Smolack, 20 N.Y.2d 198, 203-04, 282 N.Y.S.2d 248, 252 (1967) ("It is true that the New York statute which attributes liability to an owner who has given permission applies in literal terms to the use and operation of a vehicle "in this state" (former Vehicle and Traffic Law, § 59, subd. 1), but, of course, most statutes regulating motor vehicle operations in terms or by necessary implication are written to apply to the State which enacts them. However, since the present litigation is concerned with New York residents, arising from New York relationships, the rule apportioning liability from these relationships ought to be governed by New York law."); Janssen v. Ryder Truck Rental, 246 A.D.2d 364, 667 N.Y.S.2d 369 (1st Dep't 1998) (holding that § 388 applies though none of the parties domiciled in lex loci delicti, New Jersey); Vasguez v. Christian Herald Ass'n, Inc., 186 A.D.2d 467, 588 N.Y.S.2d 291 (1st Dep't 1992); Cunningham v. McNair, 48 A.D.2d 546, 370 N.Y.S.2d 577 (1st Dep't 1975). But see Elson v. Defren, No. 3766, 2001 N.Y. App. Div. LEXIS 6269, *10 (1st Dep't, May 29, 2001) (noting that § 388, strictly applied, does not impose liability on "owners of vehicles that have never been registered, used, operated or intended for use in New York and is therefore inapplicable when, as here, such a vehicle is involved in an accident outside of New York's borders."); Fried v. Seippel, 80 N.Y.2d 32, 41, 587 N.Y.S.2d 247, 251 (1992) (holding that owner of a Jamaican rental car that had never been used or intended for use anywhere but on the island of Jamaica was not covered by § 388)). Where, as here, the victim of the accident is a New York domiciliary, the state's interest in applying § 388 is especially strong. Aboud v. Budget Rent A Car Corp., 29 F. Supp.2d 178, 183 (S.D.N.Y. 1998) (noting New York's strong interest in providing remedies to victims but ultimately holding that New Jersey "as the situs of the tort, has a substantial interest in applying its law to assure that `the victims of automobile accidents occurring in that state are treated fairly and uniformly and that some of those victims not be granted extraordinary rights and preferences solely because the victim's residence is New York.'") (citation omitted). Here, it is undisputed that plaintiff's injury did not occur during a use or operation of the trailer in New York. However, as was acknowledged at oral argument, the trailer has been used and operated in New York on other occasions. In fact, as plaintiff's affidavit reveals, just after he was treated at a hospital in Ohio for his injury, he and his partner returned the tractor trailer to a yard at in Long Island City, New York. (Pl. Aff. ¶ 4)
Assuming that Xtra Lease is bound by § 388(1), plaintiff next avers that Xtra Lease is vicariously liable for CTL's violation of the Interstate Commerce Commission ("ICC") statute and its accompanying regulations. Relevant portions of that federal regulatory scheme require "motor carriers" to provide safe and adequate equipment. 19 U.S.C. § 14101 (formerly 49 U.S.C. § 1101(a)). In addition, motor carriers using leased equipment are required to:
(4) have control of and be responsible for operating those motor vehicles in compliance with requirements prescribed by the Secretary on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carrier.
49 U.S.C. § 11107 (formerly 49 U.S.C. § 1101(a)). Section 14102 also requires that equipment leases be in a writing signed by the parties and that motor carriers inspect and insure the vehicles. 49 C.F.R. § 376.11, 376.12 (formerly 49 U.S.C. § 11107(A); 49 C.F.R. § 1057.11, 1057.12). Furthermore, regulations and guidance promulgated by the Federal Highway Administration require systematic inspections, repair and maintenance of all vehicles subject to its jurisdiction. 49 C.F.R. § 396.1, et. seq. Because CTL took possession without making any physical inspections, repairs or maintenance, plaintiff argues that CTL has violated the ICC statutory scheme and its accompanying regulations. Plaintiff then argues that vicarious or strict liability may be imposed on lessees of vehicles used in interstate commerce. Accordingly, although plaintiff did not originally name CTL as a defendant as it was unaware that CTL has subleased the trailer from Xtra Lease, plaintiff now contends that CTL was negligent under the ICC statute and that it cannot avoid liability simply because on the day of the accident, plaintiff, not CTL, was using the trailer. Furthermore, plaintiff avers that CTL is liable under the statute because it has never produced evidence of a written lease to Joseph Eletto in violation of 49 C.F.R. § 376.11, 376.12.
Plaintiff has not spelled out the definition of a systematic inspection under the ICC statute, but the court's research indicates that the "Regulatory Guidance for the Federal Motor Carrier Safety Regulations, Part III," which is set forth in the federal regulations, provides: "Generally, systematic means a regular or scheduled program to keep vehicles in a safe operating condition. Section 396.3 does not specify inspection, maintenance, or repair intervals because such intervals are fleet specific and, in some instances, vehicle specific. The inspection, repair, and maintenance intervals are to be determined by the motor carrier." 62 F.R. 16270, 16427 (corresponding to U.S.C. 396.3) (effective May 4, 1997). The Guidance further provides, in answer to the question "Who has the responsibility of inspecting and maintaining leased vehicles and their maintenance records?" that: "The motor carrier must either inspect, repair, maintain, and keep suitable records for all vehicles subject to its control for 30 consecutive days or more, or cause another party to perform such activities. The motor carrier is solely responsible for ensuring that the vehicles under its control are in safe operating condition and that defects have been corrected." Id. at 16427.
In its memorandum in support of this motion for summary judgment, Xtra Lease first contends that plaintiff has adduced no evidence that the rear cargo door was in a defective condition at the time it was leased to CTL. Xtra Lease argues moreover that in order to impose vicarious liability under § 388(1), a plaintiff must demonstrate that his injury arises from the use and operation of the trailer and, because plaintiff has not done so, he cannot establish a genuine factual issue. As for the federal statutory scheme found in the ICC, Xtra Lease contends that it may not be held strictly liable under the ICC because neither it nor CTL meets the statute's definition of a "motor carrier"; because plaintiff has not alleged, as he must, any specific ICC regulation which would have governed Xtra Lease or CTL responsibilities with respect to the inspection of the trailer door; and, finally, because at the time of the accident, neither Xtra Lease nor CTL retained control over the trailer, allegedly a prerequisite for liability under the ICC, but instead control over the trailer was vested exclusively in Joseph Eletto on December 9, 1995. Xtra Lease finally maintains that there is no way the accident could have occurred as plaintiff claims because the only way that the door could have closed so quickly would have been if someone had disengaged the operator from the rear frame of the trailer by removing a series of fasteners, and because the maintenance work Xtra Lease performed on the door hinges and rollers prior to the accident could not have affected the operator.
It should be noted that Xtra Lease argues that pursuant to New York choice of law principles, under which an interest analysis is used to determine what substantive law should apply in any given case, Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 620 N.Y.S.2d 310 (1994), Ohio substantive law applies as that is the jurisdiction in which plaintiff was injured and in which the trailer was used to conduct business. Tanges v. Danbury Printing and Litho, Inc., 93 N.Y.2d 48, 687 N.Y.S.2d 604 (1999); Moon v. Plymouth Rock Corp., 180 Misc.2d 676, 693 N.Y.S.2d 809 (Sup.Ct. Queens Cty. 1999). Under Ohio law, Xtra lease avers that plaintiff cannot maintain a negligence action against it because he cannot demonstrate that the cargo door had a defect at the time it was leased by Xtra Lease to CTL. Love v. Mack Trucks, Inc., 27 Ohio App.3d 198 (1985). Ohio law, Xtra Lease argues, provides that as a bailor Xtra Lease had a duty to exercise ordinary care to make the trailer it leased safe for intended purpose or to inform CTL of any unsafe condition which Xtra Lease had a duty to discover in the exercise of reasonable care. Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977); Hileary v. Bromley, 146 Ohio St. 212 (1946); Albright v. Leonardt Trucking, Inc., 1980 Ohio App. LEXIS 11248 (Ohio Ct.App. Crawford Cty., Feb. 15, 1980); Johnson v. Century Cargo Express Corp., 1999 WL 1029521 (Ohio Ct.App., Columbiana Cty. Nov. 8, 1999). Finally, Xtra Lease argues that the action against it must fail under Ohio law because plaintiff has failed to show any negligence on Xtra Lease's part in owning, maintaining or leasing the trailer. For the reasons already stated, however, plaintiff correctly argues that § 388 of New York's Vehicle and Traffic Law applies because it is a loss-allocating rule. Accordingly, this Memorandum Order is devoted to a consideration of whether a genuine factual issue exists as to Xtra Lease's vicarious liability pursuant to § 388.
Having carefully considered the parties' respective arguments, the court first finds that Xtra Lease cannot demonstrate the absence of a genuine issue of material fact which would render it liable under New York State law. Xtra Lease correctly argues that in order to establish liability on the part of Xtra Lease, plaintiff must show that the trailer was in a defective condition when first leased by Xtra Lease to CTL. The record in this case no doubt contains evidence suggesting that the trailer was not in a defective condition when leased by Xtra Lease to CTL, including the fact that other workers opened and closed the door without a problem prior to plaintiff's accident and that inspections conducted both prior to and before the accident did not reveal a broken operator. However, the record also contains significant evidence suggesting that the door to the trailer was defective, particularly in view of the fact that plaintiff was an experienced truck driver who had opened and closed countless trailer doors with no problem and also that Xtra Lease performed maintenance on the trailer door shortly before the accident. To overlook the latter evidence in the manner urged by Xtra Lease would require the court to perform a function that it simply may not perform on summary judgment. Accordingly, because Xtra Lease fails to eliminate conclusively the possibility that the trailer was leased to CTL in a defective condition, summary judgment cannot be granted as against plaintiff.
If at trial, plaintiff is able to prove that Xtra Lease leased the trailer to CTL in a defective condition, § 388 would permit plaintiff to hold Xtra Lease liable. The fact that the accident occurred outside of New York does not disturb this conclusion. While on its face, § 388 applies only to owners of vehicles "used or operated in this state[,]" plaintiff's representation during oral argument that the trailer in question has been used or operated in New York in the past was not disputed by Xtra Lease. Moreover, cases interpreting § 388 hold that it may apply even where the accident does not take place in New York. See, e, g., Janssen v. Ryder Truck Rental, 246 A.D.2d 364, 667 N.Y.S.2d 369 (1st Dep't 1998) (applying § 388 despite fact that accident occurred in New Jersey because all of the parties were domiciled in New York); Cunningham v. McNair, 48 A.D.2d 546, 370 N.Y.S.2d 577 (1st Dep't 1975) (noting in a case in which plaintiff's trip began in and was to terminate in New York that "Section 388 of the Vehicle and Traffic Law imposing vicarious liability upon the owner of a motor vehicle has been held by case law not to be necessarily limited to accidents occurring within the State of New York . . . [T]he legislative history of section 388 . . . `indicates that the Legislature intended to enlarge the vehicle owner's vicarious liability and not to draw the line at the border.'") (citing Matter of Sentry Ins. Co. v. Amsel), 36 N.Y.2d 291, 295, 367 N.Y.S.2d 480 (1975); Farber v. Smolack, 20 N.Y.2d 198, 282 N.Y.S.2d 248 (1967)); Vasquez v. Christian Herald Ass'n, Inc., 186 A.D.2d 467, 588 N.Y.S.2d 291 (1st Dep't 1992) (applying § 388 to an accident that occurred in Pennsylvania).
Having found that summary judgment cannot be granted as against plaintiff on the New York law claim, the court next considers defendant's claim that summary judgment must be granted as against plaintiff on its claim that Xtra Lease is vicariously liable for CTL's violation of federal law. As an initial matter, the court notes that the ICC applies in this case because both Xtra Lease and CTL are embraced by the federal regulatory scheme's definition of a "motor carrier," which consists of a "person providing motor vehicle transportation for compensation." 49 U.S.C. § 13102(13). Xtra Lease, like CTL, has acknowledged it is in the business of leasing commercial trailers used in interstate commerce. (Xtra Lease's Local Rule 56.1 Statement)
Xtra Lease also suggests that the Equipment Rental Agreement (Def.'s Ex. I) does not fall within the definition of a "Lease" under C.F.R. § 376.12(e), which is a "[c]ontract or arrangement in which the owner grants the use of equipment, with or without driver, for a specified period to an authorized carrier for use in the regulated transportation of property, in exchange for compensation." Why this definition is not broad enough to encompass the Equipment Rental Agreement, however, is not immediately clear from the language of C.F.R. § 376.12(e).
Besides simply demonstrating that Xtra Lease is governed by the ICC, plaintiff must also point to a specific regulation under which Xtra Lease might be found liable in order to survive summary judgment. In this case, plaintiff argues that Xtra Lease is vicariously liable pursuant to § 388 of the New York Vehicle and Traffic Law for CTL's per se negligence resulting from its failure to perform appropriate inspections, repairs and maintenance in accordance with 49 C.F.R. § 396.1 et. seq. and from its failure to maintain a written lease as required by 49 C.F.R. § 376.11, 376.12. Contrary to Xtra Lease's suggestion to the contrary, plaintiff has pointed to specific federal regulations he alleges were violated by CTL. In Practico v. Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985), the First Circuit held that negligence per se may be established where there is a breach of a statutory duty arising from specific safety regulations promulgated to prevent the harm resulting from the breach. There, an OSHA regulation mandated the use of a specific jack in a procedure used to maintain railroad cases during which a device called a journal box is removed so that the brasses beneath it may be replaced. Because the OSHA regulation specifically provided for the use of certain equipment, the court found that defendant's use of non-conforming equipment constituted a violation of the regulation and sufficient grounds to find the defendant negligentper se. In this case, like in Practico, plaintiff has cited violations on CTL's part of specific ICC regulations concerning inspections which he avers could have revealed the defect in the trailer door and prevented his injury. While plaintiff has yet to establish that CTL violated the inspection requirements of the ICC scheme, defendant certainly has not proven that CTL complied with those requirements and a factual issue remains as to whether it did.
With respect to plaintiff's attempt to impose vicarious or strict liability on Xtra Lease on the basis of CTL's status as the lessee of a vehicle used in interstate commerce, defendant correctly notes that negligence, per se is only available where the motor carrier against whom this form of liability is sought has control of the vehicle but fails to comply with specific regulations. See e.g., Johnson v. SOS Transport, 926 F.2d 516 (6th Cir. 1991) (holding that lessee could be found negligent per se where plaintiff's decedent, who died as a result of a brake malfunction while driving a tractor trailer leased under a trip lease, where lessee was liable as a motor carrier that had retained control of the vehicle). Here, although plaintiff's employer was subleasing the trailer from CTL during the time of the injury, CTL, as both a lessee (to Xtra Lease) and a sublessor (to Joseph Eletto), arguably maintained control over the trailer such that it could be deemed negligent per se. At this juncture, however, Xtra Lease cannot demonstrate the absence of a genuine factual issue as to which entity maintained control over the trailer at the time of the injury.
Plaintiff also attempts to impose liability on the basis of a line of cases concerning a truck lessee's breach of duty to an injured party that occurred while the truck was being operated by a driver furnished by the truck lessor. See, e.g., Transamerica Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28 (1975); Ryder Truck Rental, Inc. v. UTF Carriers, Inc., 907 F.2d 34 (4th Cir. 1990); Rodriguez v. Ager, 705 F.2d 1229 (10th Cir. 1983); Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1974); Proctor v. Colonial Refrig. Trans. Co., 494 F.2d 89 (4th Cir. 1974); Wellman v. Liberty Mutual Ins, Co., 496 F.2d 131 (8th Cir. 1974); Mellon Nat's Bank Trust v. Sophie Lines, Inc., 289 F.2d 473 (3d Cir. 1961); Smith v. Johnson, 862 F. Supp. 1287 (M.D. Pa. 1994). The imposition of vicarious liability in those cases was inextricably linked to the fact that the lessee was found under the motor carrier agreement to retain control of the leased truck and the negligence resulting from the operation or use of the vehicle was imputed to the lessee who was found vicariously liable. Relying on those cases, plaintiff concludes that CTL, as lessee of the trailer, is strictly liable and that its liability can be imputed to Xtra Lease pursuant to § 388 even though the driver was not employed by the lessee. Again, plaintiff's ability to establish Xtra Lease's liability by this means depends on whether CTL, despite having subleased the trailer to Joseph Eletto, maintained control of it such that Xtra Lease could be vicariously liable for CTL's violation of the ICC regulations. For the same reason just stated, Xtra Lease has not conclusively demonstrated that CTL was not in control of the trailer.
Having determined that genuine factual issues remain as to the condition of the trailer door when it was leased from Xtra Lease to CTL and subleased from CTL to Joseph Eletto and as to who had control over the trailer during this period, it follows that summary judgment cannot be granted.
III. Xtra Lease's Motion in the Alternative for Indemnification
In the event summary judgment is not granted as against plaintiff, Xtra Lease moves in the alternative for contractual indemnification against CTL. Xtra Lease's motion in the alternative is premised on an indemnity clause in the Equipment Rental Agreement between Xtra Lease and CTL, which requires the lessee, to "hold Xtra Lease harmless from and against any and all loss or liability (including reasonable attorneys' fees) for injuries or damages to any person or property arising out of or incident to the use, possession or control of the Equipment by Lessee." (Equipment Rental Agreement ¶ 6) In addition, the Agreement requires the Lessee to maintain the "condition of equipment" at its own expense (id. ¶ 3) and prohibits the Lessee from assigning any interest or subletting any of the equipment without the "prior express written approval of Xtra Lease." (Id. ¶ 12) Finally, the agreement requires the Lessee to procure comprehensive automobile coverage and comprehensive general liability coverage naming the Lessor as an additional insured. (Id. ¶ 7)
Xtra Lease contends that CTL has failed to demonstrate the existence of a genuine issue of fact suggesting that it complied with the Equipment Rental Agreement insofar as CTL has failed to procure comprehensive coverage naming Xtra Lease as an additional insured. In support of this contention, Xtra Lease offers a copy of the Certificate of Insurance furnished by CTL which shows that even though Xtra Lease is an additional insured under an automobile policy, CTL never procured additional coverage indemnifying Xtra Lease. CTL maintains that summary judgment must be denied as this Certificate of Insurance establishes that CTL did obtain comprehensive liability coverage naming Xtra Lease as an additional insured through N.J. CAIP, which is the assigned risk plan in New Jersey. According to CTL, Xtra Lease was obligated under the assigned risk plan to notify the insurance carrier that Xtra Lease was named as a defendant in a lawsuit covered by the policy and to submit a formal request for indemnification and a defense of that lawsuit. CTL argues in essence that Xtra Lease's failure to do so prevents it from shifting liability onto CTL through the present indemnification proceeding. In addition, CTL argues that even if it did fail to procure the liability insurance required under the Equipment Rental Agreement, the only damages Xtra Lease can claim are contract damages equivalent to the cost of procuring the insurance policy.
New York law clearly provides that a claim for indemnification or contribution is premature where there has been neither entry of judgment nor payment. State v. Syracuse Rigging Co., 249 A.D.2d 758, 760, 671 N.Y.S.2d 801, 803 (3d Dep't 1998) (declining to adopt exception to general rule where "record discloses the existence of factual issues regarding plaintiff's potential negligence arising out of it supervision and control over the worksite. If it is ultimately determined that plaintiff was negligent and that its negligence contributed to [third party's] injuries, plaintiff cannot prevail upon its indemnification claims[.]"; Bay Ridge Air Rights, Inc. v. State, 57 A.D.2d 237, 239, 394 N.Y.S.2d 464, 466 (3d Dep't 1977), aff'd, 44 N.Y.2d 49, 404 N.Y.S.2d 73 (1978) (where "there has been neither entry of judgment nor payment[,] and there is no suggestion that "interests of fairness and judicial economy will be furthered by allowing all parties to establish their rights and liabilities in one action . . . we choose not to depart from the general rule that `the obligation or liability which is the subject of the indemnity must have accrued and become fixed before an action to recover indemnity therefor[e] may be maintained'") (internal citation omitted)).
In this case, plaintiff has not obtained a final judgment against Xtra Lease and, thus, Xtra Lease's motion in the alternative is premature under New York's "general rule." Concerns of "fairness and judicial economy" do not militate departing from this general rule because the factual issues raised in the indemnification case will not be similar to issues raised in the underlying case, as the underlying case will be concerned primarily with whether plaintiff's injuries were caused by defects in the trailer door which were present when the trailer was leased to CTL. Since CTL neither took possession of the trailer or inspected it, CTL's role in the underlying case will be limited. As inSyracuse Rigging Co., 249 A.D.2d at 760 — where the questionable validity of the plaintiff's indemnification and contribution claims was insufficient to warrant an exception to the rule given the plaintiff's own potential negligence arising out of its. inadequate supervision and control of a work site — this court is not persuaded to depart from the New York's general rule, in particular considering the allegation raised in this action that the trailer was defective when leased by Xtra Lease to CTL. As such, Xtra Lease's indemnification and contribution claims have not accrued and summary judgment on them is premature.
IV. Plaintiff's Cross-Motion for Partial Summary Judgment
In addition to opposing defendant's motion for summary judgment, plaintiff also moves for partial summary judgment "as to the vicarious liability of defendant, Xtra Lease, predicated on [CTL]'s negligence, as lessee, in the use and operation of the trailer." Pl.'s Opp'n and Cross-Motion, 9) For the same reasons articulated in Section II of this Memorandum Order, neither party has conclusively demonstrated the absence of a genuine issue of fact as to whether the trailer was leased by Xtra Lease to CTL in a defective condition. Moreover, because CTL's negligence has not yet been conclusively proven or disproven, it would be imprudent to grant summary judgment as against Xtra Lease on the theory of vicarious liability. As such, plaintiff's cross-motion must be denied.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is denied; defendant's motion in the alternative for indemnification is denied; and plaintiff's cross-motion for partial summary judgment is denied.
SO ORDERED.