Virginia Lawyers Weekly VA Lawyers Weekly
In a carrier’s negligence action against a tractor-trailer operator that struck a windmill blade the carrier was transporting for General Electric in a truck-stop parking lot, a Roanoke U.S. District Court denies partial summary judgment for the operator; even though the tractor-trailer driver admitted seeing the windmill blade, evidence indicated plaintiff’s vehicle and cargo may have exceeded the combined length of the parking spaces.
Because of the size of the windmill blade, carrier DXI was required to obtain a hauling permit from the Virginia Department of Motor Vehicles prior to traveling over the state’s highways. The permit authorized DXI to travel on certain interstate roadways between sunrise and sunset. On Oct. 13, 2009, about 6:00 p.m., DXI’s driver pulled off I-81 and parked at the Wilco-Hess Truck Stop in Raphine, Va., for the night. Because there was no room left in the area around the perimeter of the parking lot where the driver normally stopped, he parked his truck in a double parking space in the upper left side of the lot. The back of the windmill blade faced a travel lane.
The tractor-trailer operator arrived at the truck stop around midnight. The accident occurred as this driver was circling the lot to find a place to park. He observed the DXI truck and its cargo as he made a right turn onto the travel lane in which the DXI truck was parked. Although the tractor successfully cleared the windmill blade, his trailer struck the blade and damaged it beyond repair.
DXI filed suit against the carrier, Howell’s Motor Freight Inc., for negligence, equitable indemnification and contribution. DXI has moved for summary judgment on the negligence claim and Howell’s moved for summary judgment on the claims for equitable indemnification and contribution.
The court concludes the negligence claim must be decided by a jury. The evidence is in dispute as to whether, and to what extent, the windmill blade was intruding into the travel lane. Whereas DXI’s driver testified that both his truck and the windmill blade fit entirely within the two spaces in which he was parked, defendant’s evidence indicates DXI’s vehicle and cargo may have exceeded the combined length of the parking spaces by as much as 17 feet. While defendant’s driver testified that he saw the windmill blade prior to striking it, it is unclear from his deposition testimony whether he saw the entire blade or fully appreciated the extent to which it may have been intruding into the travel lane. Also, the evidence is in dispute as to the adequacy of the truck stop’s lighting and with respect to whether the DXI driver placed cones or other warning device around the windmill blade to caution other drivers about the oversized load. The court is unable to conclude, as a matter of law, that the Howell’s driver was negligent.
The court concludes Howell’s is entitled to summary judgment on the equitable indemnification and contribution claims. There has been no prior determination that the negligence of Howell’s caused the damage to the windmill blade, and the court agrees with Howell’s that DXI’s allegation of negligence is not sufficient to satisfy that prerequisite, as set out in Carr v. The Home Ins. Co., 463 S.E. 2nd 457 (Va. 1995). Also, given DXI’s repeated assertion that its driver was not negligent in any way, the court concludes Howell’s is entitled to summary judgment on the claim for contribution. Plaintiff’s claim for contribution is subsumed by its negligence claim.
Daily Express Inc. v. Howell’s Motor Freight Inc. (Conrad) No. 7:11cv0159, June 5, 2012; USDC at Roanoke, Va. VLW 012-3-338, 7 pp.
