Opinion
February 11, 1999
Appeal from the Supreme Court (Rumsey, J.).
On June 24, 1993, a tractor-trailer driven by defendant James F. Cutlip and owned by Cutlip's employer, defendant Crown Truck Leasing, Inc. (hereinafter Crown), rear-ended plaintiffs' vehicle on State Route 41 in the Town of Homer, Cortland County. At the time of the accident, the tractor-trailer was leased to defendant A. Rotondo Sons, Inc. (hereinafter defendant) and transporting defendant's products. Plaintiffs and their son Matthew sustained injuries and, tragically, their infant son Marcus died. Subsequent to the accident, defendant merged with defendant Oldcastle Precast East, Inc. (hereinafter Oldcastle). Thereafter, plaintiffs commenced this personal injury and wrongful death action against Cutlip, Crown, defendant and Oldcastle. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Plaintiffs opposed the motion and cross-moved for partial summary judgment against defendant, Cutlip and Crown on the issue of liability. Cutlip and Crown did not oppose the cross motion and joined in plaintiffs' motion for partial summary judgment against defendant. Supreme Court granted defendant's motion and dismissed the complaint against it. The court also granted plaintiffs' motion for partial summary judgment against Cutlip and Crown. Plaintiffs appeal.
Plaintiffs argue that under Federal law, specifically the regulations of the Surface Transportation Board, formerly the Interstate Commerce Commission (see, ICC Termination Act of 1995, PL 104-88; 49 U.S.C. § 701; 49 CFR part 376 [formerly part 1057]), defendant, as a lessee, is strictly liable for Cutlip's negligence. We disagree. Initially, we note that 49 CFR part 376 regulates "motor carriers" (see, 49 U.S.C. § 13501; 49 C.F.R. § 76.1). "The term `motor carrier' means a person providing motor vehicle transportation for compensation" ( 49 U.S.C. § 13102). Where "the person is the owner * * * of the property being transported and the property is being transported for sale * * * or to further a commercial enterprise", that person is deemed a "motor private carrier" or simply a "private carrier" ( 49 U.S.C. § 13102; 49 C.F.R. § 376.2 [j]) and is exempt from Federal regulation (see, 49 U.S.C. § 13505 [a] [1], [2]). Based upon our review of the record, defendant is not engaged in the trucking business. Since its primary business is the manufacture of precast concrete products and it engages in transportation to further that business, we find that defendant met its initial burden demonstrating that it is a private carrier exempt from Federal regulation (see, 49 U.S.C. § 13505 [a] [1], [2]).
Plaintiffs, however, argue that defendant's lease arrangement with Crown, where both Crown's vehicle and driver were leased to defendant in a series, of daily trip leases, was sufficient under the applicable ICC policy statement (see, ICC Ex Parte No. MCC-122 [Sub-No 2], 132 MCC 756 [1982 WL 28469 (ICC)]) to bring defendant within the ambit of Federal regulation as the functional equivalent of "a complete transportation service for compensation" — making it strictly liable for the operation of the tractor-trailer — as opposed to one who only offers "the use of the instrumentalities of transportation, i.e., truck and driver" (ICC Ex Parte No. MCC-122 [Sub-No 2], 132 MCC 756, 758 [1982 WL 28469 (ICC)], at 2; see, 49 C.F.R. § 376.11 [a]; 376.12 [c] [1]). Based upon our reading of the policy statement, we find that if applicable at all, it is directed at companies such as Crown who are in the business of providing transportation services to ship goods for others and not defendant, who merely contracts with others to ship its goods.
At the time of the accident, the lease in question was for a period of only two days.
In any event, even it defendant was not shipping its own goods, the primary factors employed by the Surface Transportation Board to determine whether a lease arrangement crosses the line between private and for-hire carriage are control and responsibility. Here, Crown provided the tractor-trailer and driver. Defendant paid a flat fee rather than reimbursing the driver for such expenses as fuel, oil or tolls. The driver was paid by Crown and took his directions from Crown. He was allowed to take the truck to his house the evening before a trip. Defendant was not responsible for repairs or maintenance of the tractor-trailer. Furthermore, there is nothing in the record to indicate that defendant assumed the risk of loss or damage to the tractor-trailer or for injury to the public. Under the circumstances, we find that plaintiffs have failed to come forward with sufficient evidentiary facts to raise a material question as to whether defendant controlled the transportation process under the lease arrangement so as to transform it into a motor carrier subject to Federal regulation.
Plaintiffs also contend that defendant, as a lessee, is vicariously liable for Cutlip's negligence as the tractor-trailer's owner pursuant to Vehicle and Traffic Law § 388 Veh. Traf.. The term "owner" under the Vehicle and Traffic Law includes "any lessee or bailee of a motor vehicle * * * having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days" (Vehicle and Traffic Law, § 128 Veh. Traf.). Despite a previous two-year lease of the tractor-trailer between Crown and defendant from August 16, 1988 to August 16, 1990, the record shows that in 1993, Crown leased the tractor-trailer on more than 30 separate occasions to other businesses prior to the accident on June 24, 1993. Moreover, in the 30 days preceding the accident, Crown rented the tractor-trailer to other companies on at least three occasions. Inasmuch as defendant did not have exclusive control of the tractor-trailer for over 30 days prior to the accident, it was not an "owner" within the meaning of Vehicle and Traffic Law § 128 Veh. Traf. and therefore was not vicariously liable for Cutlip's negligent operation (see, Vehicle and Traffic Law § 388 Veh. Traf.; Lisogorsky v. Raoufi, 227 A.D.2d 386; Sullivan v. Spandau, 186 A.D.2d 641).
We also reject plaintiffs' argument urging us, on public policy grounds, to hold defendant liable on the basis of Crown's directive to its drivers that in the event of a governmental road check they were to misrepresent and state that they were employed by defendant and also defendant's failure to remove defendant's logo from the tractor-trailer once the original long-term lease expired. There was no proof that defendant was an authorized motor carrier which acquiesced in, or was even aware of, Crown's efforts to avoid Federal regulations, or that defendant had the requisite control to repaint the vehicle.
We have considered plaintiffs' remaining arguments and find that they lack merit.
Peters, Spain, Carpinello and Graffeo, JJ., concur.
Ordered that the order is affirmed, with costs.