Herrod et al v. Wilshire Insurance Company

Filing 122

MEMORANDUM DECISION granting 103 Motion for Summary Judgment ; denying 105 Motion for Summary Judgment. Signed by Judge Dee Benson on 11/28/14. (jlw)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH

CENTRAL DNISION

CATHERINE HERROD and ALAN

P ARK1NSON, as guardinas ad litem for S.H.,

T.H., M.H., E.H., minors, C.H., N.H., J.H.,

MEMORANDUM DECISION AND
ORDER

Plaintiffs-Appellees,

Judge Dee Benson

vs.

Case No.1 :09-cv-00109

WILSHIRE INSURANCE COMPANY,
Defendant-Third-Party Plaintiff­
Appellee.

This case is before the court on remand from the Tenth Circuit Court of Appeals
to determine the specific issue of whether, at the time of the accident which is the subject ofthis
lawsuit, Espenschied Transport Corporation ("Espenschied") was a for-hire motor carrier in the
"business of transporting, jar compensation, the goods or property of another," pursuant to the
Motor Carrier Act, 49 C.F.R. 387.5. Herrod v. Wilshire Ins. Co., 499 Fed. App'x 753, 759 (lOth
Cir. 20 12)(ECF No. 96, pp. 13-14). Both parties moved for summary judgment on this issue. A
hearing was held on November 4,2014. Plaintiffs were represented by L. Rich Humpherys and

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Karra 1. Porter. Defendant was represented by Robert D. Moseley and Nelson Abbott. After oral
argument, the court took the issue under advisement. Having considered the relevant facts and
law, the court issues the following order granting Defendant's Motion for Summary Judgment
and denying Plaintiffs' Motion for Summary Judgment.

The court agrees with Defendant that the undisputed facts clearly show that at the
time of the accident, Espenschied, while still an authorized motor carrier, was no longer in the
business of transporting goods of another for compensation. Effective January 1, 2005,
Espenschied sold all of its assets to DATS Trucking, Inc. ("DATS"), with the exception of its
trailers, which it leased to DATS. Espenschied signed a non-compete provision with DATS and
Espenschied cancelled its cargo insurance, which had been required to maintain its motor carrier
authority. These and other of Espenschied's actions evidence that, as of January 1, 2005, the
nature of Espenschied's business changed. It ceased its transportation services and, instead,
operated going forward only as a lessor of trailers to DATS.

The accident occurred on January 30, 2005, when a tire on the trailer being leased
and driven by DATS, came off its axil, crossed the median and struck Mr. Kimball Herrod's
vehicle. As a result of this tragic accident, Mr. Herrod was killed.

Plaintiffs argue that because Espenschied was a motor carrier for-hire transporting
goods for compensation when it drove the trailer to Idaho prior to January 1, 2005, Espenschied

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was necessarily a motor carrier for-hire for the return portion ofthat trip on January 30,2005, the
date of the accident. This argument is unpersuasive, however, because between the time that
Espenschied drove the trailer to Idaho and the time DATS returned the trailer that it was then
leasing, Espenschied's business had changed. Espenschied was no longer in the "business of
transporting,jor compensation, the goods or property of another."

Accordingly, Plaintiffs' Motion for Summary Judgment is hereby DENIED.
Defendant's Motion for Summary Judgment is hereby GRANTED.

IT IS SO ORDERED.

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DATED this Z~yofNovember, 2014.

United States District Judge

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