Michael Herrera v. Neff Rental,LLC et al

Filing 65

ORDER RE: NEFF RENTAL LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Illston, Susan) (Filed on 8/28/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL HERRERA,

Case No. 14-cv-02295-SI

Plaintiff,
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v.
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NEFF RENTAL, LLC, et al.,
Defendants.

ORDER RE: NEFF RENTAL LLC'S
MOTION FOR PARTIAL SUMMARY
JUDGMENT
Re: Dkt. No. 55

United States District Court
Northern District of California

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Neff Rental, LLC’s motion for partial summary judgment on its third-party complaint

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against Marine Terminals Corporation, d.b.a. Ports America (“Ports”) is scheduled for a hearing

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on September 4, 2015. Docket No. 55. Neff contends that Ports has an immediate and continuing

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duty to defend Neff pursuant to the defense and indemnity provision in the Rental Agreement that

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Ports signed in order to lease the payloader that plaintiff was using at the time of his injury.

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Ports opposes summary judgment on several grounds, including its assertion that there is

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an additional contract between Neff and Ports that governs the equipment rental. In support of this

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assertion, Ports cites the deposition testimony of Neff Rental’s Western Region Service Manager,

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Forrest Belcher, in which he testified that in addition to the "everyday rental contract that every

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customer would get," there was an additional contract between Neff and Ports that contained "a

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specified term and other conditions in it that Ports had requested." Dkt. 57-1 (Belcher depo. at

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106:23-107:9). Neither party has provided a copy of the contract referenced in the Belcher

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deposition to the Court. In its reply brief, Neff does not explicitly deny the existence of an

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additional contract, but instead argues that Ports' "insinuation that there may be another contract

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which may contain terms that modify the defense and indemnity provision in the Rental Out

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agreement is a red herring, because there is no evidence of any 'separate contract' in any way

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modifying the defense and indemnity provision in the Rental Out agreement. If another relevant

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agreement existed, Ports America would have a copy and would have produced it with its

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opposition." Dkt. 60 at 1:15-20.

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The Court finds that if there is another contract between Neff and Ports governing the

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equipment rental, that contract could be relevant to the issues presented by Neff's motion for

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partial summary judgment. Accordingly, the parties should be prepared to address at the hearing

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whether there is in fact an additional contract governing the equipment rental, and if so, its

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relevance to the pending motion. The parties may file a copy of the contract, along with a

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supplemental brief of no more than 3 pages addressing that contract, in advance of the hearing.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: August 28, 2015
______________________________________
SUSAN ILLSTON
United States District Judge

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