No. 92-263
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
ROBERT TOOMBS,
Plaintiff and Appellant,
GETTER TRUCKING, INC.,
a Montana Corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Hon. Maurice R. Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
V. Joe Leckie, Attorney at Law,
Billings, Montana
For Respondent:
John R. Davidson, Attorney at Law,
Billings, Montana
Submitted on Briefs: December 3, 1992
Decided: January 21, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Plaintiff and appellant Robert Toombs brought suit in the
~istrict Court of the Thirteenth Judicial District, Yellowstone
County. Toombs alleged that defendant and respondent Getter
Trucking owed him monies under a contract entered into between the
parties. The District Court granted Getter Trucking's motion for
summary judgment and this appeal followed. We affirm.
The only issue before this Court is whether the District Court
erred in granting summary judgment in favor of Getter Trucking.
Getter Trucking was a common motor carrier of property under
authorities issued by the Interstate Commerce Commission (ICC) and
various state regulatory agencies. Getter ~ruckinghad tariffs on
file with the ICC. Federal law provides that a motor carrier
providing transportation service subject to the jurisdiction of the
ICC shall provide that transportation only at the rate specified
for the transportation service contained in a tariff that is filed
with the ICC. The requirement that a carrier must charge all
customers according to the established tariffs is known as the
"filed rate doctrine."
Toombs and Getter Trucking entered into a written agreement in
February 1980 whereby Toombs leased a tractor with driver to Getter
Trucking. Pursuant to the contract, Toombs transported commodities
under tariff on behalf of Getter Trucking. The contract provided
that Toombs was to receive 67 percent of the net revenue derived by
Getter ~rucking. The lease agreement between the parties ran from
~ebruary27, 1980, through February 21, 1981. During the course of
the relationship, Toombs did not complain that he was not being
paid the correct amount.
On December 10, 1982, Toombs brought suit alleging that he was
entitled to compensation that he had not received. The District
Court stated that there was no evidence presented that Toombs was
not paid 67 percent of the amounts Getter Trucking billed its
customers for services provided by Toombs. However, Toombs alleges
that Getter Trucking charged its customers less than it was
required to charge pursuant to the established tariffs. Getter
Trucking denies charging less to its customers than was required by
federal law. However, Getter Trucking contends that even if it did
charge its customers less than required by federal law, Toombs is
only entitled, pursuant to the contract, to 67 percent of the net
revenue derived by the carrier, which would be the actual amounts
billed to the customers. Getter Trucking argues that the contract
does not require them to charge any particular rate, but simply
provides that Toombs will receive 67 percent of the rate charged.
Toombs argues that Getter Trucking is indeed required to charge a
particular rate to customers. Toombs contends that the contract
term "net revenue derived by carrier" can only mean that amount
that Getter Trucking was obligated to charge under federal law.
The District Court agreed with the reasoning of Getter
Trucking. The District Court determined that "net revenue derived
by carrier" meant the amount billed to the customer, stating that
"[i]n no way can it mean some greater amount that should have been
billed by the defendant to the cust~rner.~~
The District Court,
therefore, did not find it necessary to make a factual finding
concerning the rates Getter Trucking had actually charged its
customers. The District Court stated that:
Without deciding whether or not the proper tariff rates
were charged, the Court is of the view that in no event
can plaintiff recover its percentage on amounts greater
than amounts actually billed customers.
The District Court granted Getter Trucking's motion for summary
judgment from which Toombs now appeals.
Toombs contends that the District Court erred in granting
summary judgment in favor of Getter Trucking. A District Court may
grant summary judgment when:
[Tlhepleadings, depositions, answersto interrogatories,
and admissions on file, together with the affidavits, if
any, show that there are no genuine issues of material
fact and that the moving party is entitled to judgment as
a matter of law.
Sherrod, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284,
815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P. The party moving for
summary judgment has the initial burden of showing that there is a
complete absence of any genuine issue of material fact. To satisfy
this burden, the movant must make a clear showing as to what the
truth is so as to exclude any real doubt as to the existence of any
genuine issue of material fact. Kober v. Stewart (1966), 148 Mont.
117, 417 P.2d 476. Summary judgment is never an appropriate
substitute for a trial if a factual controversy exists. Reaves v.
Reinbold (l98O), 189 Wont. 284, 615 P.2d 896. Upon reviewing a
grant or denial of a motion for summary judgment, this Court
applies the same standard as the district court.
Getter Trucking concedes that it is required by federal law to
charge its customers the rates specified by the applicable tariffs.
However, Getter Trucking argues that the filed rate doctrine only
governs the relationship between a carrier and a customer. Getter
Trucking contends that the relationship in this case, which is
between a carrier and third party from whom the carrier leases a
motor vehicle, is governed by the contract between the two parties.
The District Court agreed with Getter Trucking's argument
determining that the contract, and not the federal filed rate
doctrine, governed the relationship between the parties.
The contract entered into by the parties obligated Getter
Trucking to pay Toombs a certain percentage of Getter Trucking's
net revenue derived. Getter Trucking's net revenue derived is
based upon what it charged the customer. Toombs argues that since
Getter Trucking was obligated by law to charge each customer a
specified amount, the contractual term net revenue derived can only
mean that amount which Getter Trucking was obligated by law to
charge. Getter Trucking, while denying it charged less than the
rates established by the tariffs, argues that the term net revenue
derived means whatever rate they might decide to charge their
customers, even if they are charging less than the established
rates. The District Court agreed.
The District Court was correct in determining that the
contract executed by t h e parties governs t h e i r relationship. The
contract provides that Toombs shall receive a certain percentage of
Getter Trucking's net revenue. The District Court, in interpreting
this term of the contract, stated that:
Thecontractual provision seems plain and
unambiguous. In no way can it mean some greater amount
that should have been billed by the defendant to the
customer.
We agree with the District Court's interpretation of the
provision. Getter Trucking was obligated by federal law to charge
its customers a certain rate. However, that obligation in no way
created a duty to pay Toombs at any specific rate. Getter Trucking
and Toombs were free to negotiate any agreement they desired. The
result of the parties1 negotiations as to Toombs' compensation is
evident in the contract executed by the parties. In this instance,
the parties agreed that Toombs would receive a certain percentage
of Getter Trucking's net revenue. Getter Trucking paid to Toombs
the specified percentage of their net revenue. Toombs received all
that he was entitled to under the contract. Toombs' reliance on
the filed rate doctrine, in an attempt to show that he should have
received more compensation, is mistaken. Any obligation owed by
Getter Trucking to other individuals who were not parties to the
contract in question is irrelevant. The partiest contract governs
in this case and we agree with the District Court that Getter
Trucking satisfied its obligations to Toombs under the terms of the
contract.
The judgment of the District Court is affirmed.
Justice
We concur:
January 21, 1993
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
V. JOE LECKIE, Esq.
Attorney at Law
300 First Federal Savings, Bldg.
2929 Third Avenue North
Billings, MT 59101
JOHN R. DAVIDSON, Esq.
Transwestern 11, Ste. 111
490 No. 31st St.
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT
STATE O F MONTANA
L
Deputy