Ashike et al v. Mullen Crane and Transport et al

Filing 37

MEMORANDUM DECISION AND ORDER denying 29 Motion for Partial Summary Judgment. Signed by Judge Dale A. Kimball on 4/2/13. (jlw)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

CHERYL ASHIKE and LATANYA
YAZZIE,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER

vs.
Case No. 2:12CV11DAK
MULLEN CRANE AND TRANSPORT,
INC., and BROCK FARNWORTH,

Judge Dale A. Kimball

Defendants.

This matter is before the court on Plaintiffs’ Motion for Partial Summary Judgment. On
February 27, 2013, the court held a hearing on the motion. At the hearing, Plaintiffs were
represented by Paul D. Barber and Forrest G. Buffington, and Defendants were represented by
Michael L. Ford. The court took the motion under advisement. The court has carefully
considered all pleadings, memoranda, and other materials submitted by the parties, as well as, the
law and facts relevant to the motion. Now being fully advised, the court enters the following
Memorandum Decision and Order.
BACKGROUND
This case arises from an accident in which the lowboy part of Defendant Mullen Crane’s
oversize tractor trailer got stuck perpendicular to the highway while the driver, Defendant Brock
Farnworth, was attempting to make a U-turn. Plaintiff crashed into the lowboy while the trailer
was stuck across the road.

Mullen Crane is in the business of transporting heavy equipment on public highways.
Mullen Crane has a permit from the Utah Department of Transportation to drive oversize
vehicles on the highways. Defendant Brock Farnworth was an employee of Mullen Crane at the
time of the accident.
Mullen Crane dispatched Farnworth to pick up a crane at a wind farm in Milford, Utah.
Farnworth was not given specific instructions on how to locate the crane or where to turn off
Highway 257. When he passed the location, he attempted to make a U-turn on the highway.
Farnworth was driving a tractor trailer combination that consisted of a Peterbilt power unit or
tractor and a triple trailer, which included a “jeep” or front section, a main lowboy trailer, and a
booster or end section. The tractor trailer combination was approximately 102 feet long and 10
feet wide. Therefore, the tractor trailer was oversized and required an oversize load permit to be
driven legally on Utah highways.
Mullen Crane obtains an annual permit from the Utah Department of Transportation
(“UDOT”) allowing it to operate the oversize tractor trailer. Farnworth had a signed copy of that
permit in the tractor trailer at the time of the accident. The permit states, in part: “The permit
holder or authorized agent acknowledges that he/she has read and understands all the laws and
regulations governing the use of this permit.” Mullen Crane also obtained from UDOT a “trip
permit” to allow the tractor trailer combination to carry the load it was sent to pick up.
Mullen Crane had a copy of and was familiar with all of UDOT’s rules pertaining to
oversize permits. Pursuant to Utah Code Annotated Section 72-7-406 and Rule 909-23 of the
Utah Administrative Code, UDOT adopted the Utah Trucking Guide. Chapter 16 of the
Trucking Guide, relating to oversize permits, states: “Liability of Permittee: The applicant or
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permittee, as a condition for obtaining an oversize permit, shall assume all responsibility for
crashes, including injury to any persons or damage to public or private property caused by
operations.”
Defendants admit that the operation of the oversize load in this case was a cause of the
accident. In attempting to make a U-turn, Farnworth high centered the trailer across the road.
Plaintiff then ran into the trailer, and both Plaintiffs were injured as a result of the crash.
DISCUSSION
Plaintiffs seek partial summary judgment on liability and comparative fault,
arguing that Defendants are fully liable for the accident as a result of operating the tractor trailer
with an oversize use permit. The oversize use permit states that the holder has “read and
understands all the laws and regulations governing the use of this permit.” Under UDOT’s
administrative rules set forth in the Utah Trucking Guide, the permit holder, “as a condition for
obtaining an oversize permit, shall assume all responsibility for crashes, including injury to any
persons or damage to public or private property caused by operations.”
Plaintiffs contend that the plain language of this regulation indicates that
Defendants took over all responsibility to pay for damages resulting from a crash during its
operation of the oversize vehicle. Defendants argue that Plaintiffs’ interpretation of the Utah
Trucking Guide must be rejected because it is contrary to the comparative fault provisions of
Utah’s Liability Reform Act and leads to absurd results.
Plaintiffs’ interpretation seeks to place 100% fault on Defendants merely because
they were operating under an oversize permit, with no regard to what happened in the accident.
The Liability Reform Act mandates that a defendant can only be liable for that proportion of fault
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attributed to that defendant. Utah Code Ann. § 78B-5-820(1). The plain language of the Utah
Trucking Guide provides that the permit holder assumes all responsibility for injury or damages
“caused by” its operations. The language “caused by” does not appear to contradict Utah’s
statutory comparative fault system. Therefore, contrary to Plaintiffs assertion, a plain language
reading of the provision does not displace Utah’s comparative negligence scheme.
Plaintiffs, however, contend that by reading the provision to be consistent with
Utah’s Liability Reform Act, the court would be giving the provision no meaning. The provision
would merely be stating that permit holders are subject to the comparative fault scheme.
Plaintiffs assert that this reading neuters the provision. The court disagrees. It is a general
cannon of statutory interpretation to read seemingly competing provisions as consistent. The
court is not reading meaning out of the provision by interpreting it to mean that the principles of
comparative fault apply.
Moreover, Defendants argue that if the provision is interpreted as Plaintiffs
suggest, a permit holder would be solely liable in an accident in which the other driver is solely
at fault. At oral argument, the court asked Plaintiffs about a hypothetical involving a drunk
driver running a red light and crashing into an oversize trailer that was obeying traffic laws.
Plaintiffs responded that the permit holder, in that instance, would only be liable if the
“oversizeness” of the trailer played a role. For instance, if the trailer was still in the intersection
because of its oversize length. In that scenario, Plaintiffs contend that if the over long part of the
trailer was still in the intersection, regardless of whether it was still there legally, no regard would
be given to whether the driver of the other vehicle was drunk or running a red light, the permit
holder would be fully liable. However, under Plaintiffs’ interpretation of the provision, if a
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drunk driver ran a red light and hit the front cab of the oversize tractor trailer, i.e. the part of the
vehicle that does not contribute to the vehicle being oversized, Utah’s comparative fault statute
would apply because the oversize nature of the tractor trailer was not relevant to the accident.
This interpretation of the UDOT provision is far too complicated to be what UDOT intended by
the language it used. If UDOT intended to make this type of distinction, it could have easily used
language to such effect.
The court concludes that Plaintiffs’ interpretation of UDOT’s regulation cannot be
the interpretation intended by UDOT because it leads to absurd results. This language cannot be
interpreted to mean that as a condition of obtaining an oversize use permit, a permit holder agrees
to be fully liable to any third party in any accident in which it may be involved even if the other
party was solely at fault in causing the accident. Moreover, Plaintiffs attempt tp limit the liability
to accidents resulting from the “oversizeness” of the permit holder’s vehicle is not supported by
the language and is unworkable.
Defendants further point out that if the court were to accept Plaintiffs’
interpretation of the provision, an oversize vehicle legally operating with an oversize permit
would be responsible for all liability in any accident regardless of fault whereas an oversize
vehicle not legally operating with an oversize permit would be subject to Utah’s comparative
fault statute. This inconsistency could actually create an incentive in the industry for not
obtaining an oversize vehicle permit.
There are no Utah cases construing UDOT’s regulation. However, Plaintiffs rely
on an Indiana Court of Appeals case in which the court concluded that a condition for obtaining
an oversize permit required the permit holder to indemnify the state even for the state’s own
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negligence. State of Indiana v. Daily Express, Inc., 465 N.E.2d 764 (Ind. Ct. App. 1984). The
court viewed the condition as a reasonable safeguard to the State against liability. The case is
distinguishable, however, because it dealt with liability only between the permit holder and the
state.
Nonetheless, Plaintiffs argue that the court should consider the case because the
provision in this case is even broader than the one at issue in the Indiana case and the broader
language makes the permittee liable for all damages, to any third party, not just damages to the
state. Defendants, however, assert that despite the broader language used in the Utah provision,
the court should interpret the provision to mean the same thing as the Indiana provision.
Defendants contend that this interpretation of the Utah provision recognizes that UDOT could
only affect the liability between it and the permit holder. Defendants argue that UDOT was not
given any statutory authority to alter Utah’s comparative fault scheme between a permit holder
and a third party. However, UDOT could alter the comparative fault allocation between itself
and a permit holder as a condition for obtaining a permit. In fact, the language of the provision
states “as a condition for obtaining a permit.” In that sense, the change in the allocation of fault
would be akin to a contractual condition between the parties to the contract (permit), not a
change in the allocation of fault between a permit holder and all third parties.
Utah Code Ann. § 72-7-406 provides that “[UDOT] may, upon receipt of an
application and good cause shown, issue in writing an oversize permit or an oversize and
overweight permit.” “[UDOT] shall make rules governing the issuance and revocation of all
permits under this section and Section 72-7-407.” UDOT “may deny or issue a permit under this
section to protect the safety of the traveling public and to protect highway foundation, surfaces,
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or structures from undue damage by one or more of the following: (i) limiting the number of trips
the vehicle may make; (ii) establishing seasonal or other time limits . . . ; (iii) requiring security
in addition to the permit to compensate for any potential damage by the vehicle to any highway;
and (iv) otherwise limiting the conditions of operation or movement of the vehicle.” Id. § 72-7406(1)(d).
There is no mention of any authority to make rules regarding assessment or
allocation of fault for an accident involving an oversize permit holder. A rule making that kind
of policy consideration would need statutory authorization. The Utah Legislature has already set
the policy for allocating fault in the Liability Reform Act. Nothing in the Trucking Guide
overrides Utah’s comparative fault statute. The Utah Trucking Guide provision does not allocate
liability in the event of an accident between the permit holder and all third parties involved in any
accident. Rather, as a condition of entering into a contract with UDOT for a permit, it provides
that as between the permit holder and UDOT, all responsibility lies with the permit holder and
not UDOT.
Utah’s Liability Reform Act, specifically Utah Code Annotated Section 78B-5817, provides that “[n]othing in Sections 78B-5-817 through 78B-5-822 affects or impairs any
right to indemnity or contribution arising from statute, contract, or agreement.” Plaintiffs assert
that whether Defendants’ full liability is viewed as a statutory requirement or a contractual
requirement, permittees such as Defendants are required to indemnify or pay for all damages
caused by that operation, not just a portion as would be the case under the comparative fault
statute. However, at most, the liability provisions of the Utah Trucking Guide can only be read
as a change in the allocation of liability between the parties to the permit, UDOT and the permit
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holder. The language of the Utah Trucking Guide at issue cannot be read to support an
interpretation that it creates a right to indemnity arising from statute, contract, or agreement as
referenced in the Liability Reform Act to any third parties involved in any accident involving an
oversize vehicle operating with an oversize use permit. To the extent that the process for getting
an oversize permit is a contract or agreement between Defendant and UDOT, Plaintiffs were not
a party to the agreement for the oversize permit. UDOT issued the permit and any right of
indemnification flows to UDOT. The Utah Trucking Guide has no application to this case
because UDOT is not a party and nobody is attempting to apportion fault to UDOT for issuing
the permit.
Plaintiffs argue that the Utah Legislature authorized and ratified UDOT’s
Trucking Guide because the liability provision in the Trucking Guide at issue is currently
codified at R909-2-8(5) of the Utah Administrative Code published by UDOT. The court agrees
with Plaintiffs that, under Utah law, administrative regulations adopted pursuant to a statutory
grant of authority have the full force and effect of law. Horton v. Utah State Retirement Board,
842 P.2d 928, n.2 (Utah Ct. App. 1982). However, such law does not mandate that the court
accept Plaintiffs’ interpretation of the regulation.
Finally, Plaintiffs argue that in shifting the entire risk of loss to the permit holder
under the Utah Trucking Guide, UDOT was merely balancing the interests and “needs of the
traveling public, commerce, and industry” as set forth in Utah Code Ann. § 72-1-201(4). The
Utah Legislature has already made the operator of an oversize vehicle strictly liable for damage
to highways. Utah Code Ann. § 72-7-301(2)(b). Plaintiffs assert that UDOT, by regulation, has
simply extended that concept to all injury to any person. Plaintiffs contend that this is consistent
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with the fact that operating such a large vehicle is an abnormally dangerous activity. The court
has already explained its disagreement with Plaintiffs’ argument that such vague statutory
language provides UDOT with the authority to fundamentally alter Utah’s comparative fault
scheme as to oversize permit holders and all drivers on Utah’s roads. In addition, even if the
Utah Trucking Guide was viewed as establishing strict liability against Defendants, the Liability
Reform Act would still require the jury to apportion fault between plaintiffs and defendants.
Utah Code Ann. § 78B-5-817. The definition of “fault” within the Liability Reform Act includes
“strict liability,” and Utah courts have determined that this inclusion indicates that “the
legislature clearly intended comparative fault to be applied to strict liability claims.” S.H. ex rel
Robinson v. Bistryski, 923 P.2d 1376, 1380 (Utah 1996).
The court concludes that the plain language of the provision states that the
permittee “assumes all responsibility for crashes . . . caused by their operations.” The language
“caused by” does not alter the allocation of fault between an oversize permit holder and all other
drivers. Plaintiffs’ interpretation would read out the words “caused by” altogether and lead to the
absurd result that a permit holder could be solely liable for crashes in which another driver is
solely at fault. If UDOT intended such a result, it would have used different language.
Moreover, there is no statutory language granting UDOT authority to override Utah’s
comparative fault scheme and alter the allocation of fault as between an oversize permit holder
and all third parties. The language of the provision providing that it is “a condition of obtaining
a permit,” supports an interpretation that UDOT is altering only the allocation of fault between
itself and the permit holder. Accordingly, the court denies Plaintiffs’ summary judgment as to
liability and comparative fault.

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CONCLUSION
Based on the above reasoning, Plaintiffs’ Motion for Partial Summary Judgment
as to liability and comparative fault is DENIED.
DATED this 2d day of April, 2013.
BY THE COURT:

____________________________________
Dale A. Kimball,
United States District Judge

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