No. 90-384
IN THE SUPREME COURT OF THE STATE OF MONTANA
THOMAS C. UMBS,
Plaintiff and Appellant,
SHERRODD, INC., a Montana
corporation, and MONTANA
TRANSPORT COMPANY,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas M. Malee, Esq., Billings, Montana
For Respondent:
John Dyre, Esq. , Crowley Law Firm, Billings, Montana
Gary L Graham, Esq., Garlington, Lohn & Robinson,
.
Missoula, Montana
Loren H. Torkelson, Esq., Richter & Torkelson,
Billings, Montana
Submitted on Briefs: January 3, 1991
January 22,
Honorable Henry Loble, Retired District Judge, delivered the
Opinion of the Court.
Thomas C. Umbs appeals from the order of the District Court
of the Thirteenth Judicial District, Yellowstone County, granting
defendant Montana Transport Company summary judgment in this
matter. We reverse and remand.
The dispositive issue is whether Umbs raised material issues
of fact which precluded summary judgment.
Montana Transport Company (Montana Transport) is a motor
carrier authorized by the Interstate Commerce Commission to carry
freight in interstate commerce. Pursuant to a written lease,
Montana Transport leased a truck owned by Sherrodd, Inc., and
driven by Sherroddtsemployee, Umbs.
The following facts are taken from Umbsts affidavit:
On May 6, 1985, the truck Umbs was driving went through a
motor vehicle inspection in Illinois. A leak was found in a
diaphragm in the truck's air brake system and the inspector
prohibited further movement of the truck until the leaky diaphragm
was repaired. Umbs nevertheless brought the truck back to Montana,
under instructions from Sherrodd, Inc. When he reached Montana,
Umbs stopped at Sherrodd, 1nc.I~yard in Pompeyls Pillar. Umbs
left the load at PompeylsPillar and went on to Billings, Montana,
in his own car.
Two days later, on the morning of May 10, 1985, Umbs received
a phone call from Oliver Ewen, the president of Montana Transport.
Umbs told Ewen that he Itdidnot want to drive the truck any further
until it was repaired." Ewen told Umbs that he should "either
deliver that load today or [Ewen] would find someone else who
would.11 Bob Sherrodd, Umbsls boss at Sherrodd, Inc., then called
Umbs and told him to do as Ewen wanted.
Umbs attempted to deliver the load for Montana Transport,
believing he would be fired if he did not do so. He was injured
when a train hit the truck after the brakes on the truck failed on
a downhill grade approaching a railroad crossing.
A Montana Highway Patrol sergeant issued a citation to the
truck owners for allowing a defective truck to be operated on the
highways. Bond was forfeited.
The train engineer, in his affidavit, said that he observed
the truck approaching the crossing and
It was clear to me that the brakes were not
holding, and that the driver was unable to
stop because of insufficient brakes. . . I
believe that the driver of the truck did
everything he possibly could to stop the
truck. I have seen many other semis come down
that hill, and this driver began braking
earlier than most other drivers. In other
words, this driver was being much more careful
than other semi drivers coming down the hill
toward the crossing.
Umbs filed suit against both Sherrodd, Inc., and Montana
Transport. Summary judgment was granted to Sherrodd, Inc., on the
grounds that it had provided workers1 compensation insurance for
Umbs and was protected from further liability under the exclusivity
provisions of the Workers' Compensation Act. That decision was not
appealed.
Montana Transport and Umbs both moved for summary judgment.
The motions were briefed and orally argued. The District Court
granted Montana Transport summary judgment, ruling that Montana
Transport owed no duty to Umbs and that there is no genuine issue
of material fact.
Summary judgment is proper when, based upon all the documents
before the district court, no genuine issue of material fact is
present and one party is entitled to judgment as a matter of law.
Rule 56 (c), M.R.Civ.P. In deciding a motion for summary judgment,
all factual disputes must be resolved in favor of the nonmoving
party. Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d
613, 615.
Montana Transport argues that, as a matter of law, it owed no
duty to Umbs and that therefore summary judgment was proper. The
District Court agreed. It determined that federal law did not
create a duty on the part of Montana Transport toward Umbs. It
also concluded that the lease agreement between Montana Transport
and Sherrodd, Inc., did not create any duties on the part of
Montana Transport toward Umbs.
Unless a general contractor exerts some form of control over
the subcontractor8smethod of operation, the general contractor is
not liable for injuries to the subcontractorlsemployees. Shannon
v. Howard S. Wright Const. Co. (1979), 181Mont. 269, 275, 593 P.2d
438, 441. There are three exceptions to this general rule of non-
liability: 1) where there is a nondelegable duty based on a
contract; 2) where the activity is "inherently or intrinsically
dangerous;I8 and 3) where the general contractor negligently
exercises control reserved over a subcontractorlswork. Micheletto
v. State (Mont. 1990), 798 P.2d 989, 991, 47 St.Rep. 1740, 1742.
Montana Transport argues that under this Courtls recent decisions
in Micheletto and Kemp v. Big Horn County Elec. Co-op. (Mont.
1990), 798 P.2d 999, 47 St.Rep. 1768, it is not liable under any
of the three exceptions.
In Micheletto, a trench being dug for buried utility cables
caved in on the plaintiff, who was working in the trench. Plain-
tiff brought suit against the State of Montana, the general
contractor on the job, whose inspector had been at the construction
site that morning looking at the trench. The trial court granted
summary judgment for the State. After reviewing the general
principles set forth in Shannon, this Court agreed that there was
no duty based on any contract provision and that the activity was
not inherently or intrinsically dangerous. This Court further
stated that
before liability is found on the basis of
control by the general contractor, there must
be a contractual provision which establishes
that the general contractor has assumed the
responsibility for initiating, maintaining and
supervising safety precautions as was present
in the Ste~anekcontract.
Micheletto, 798 P.2d at 995. Determining that there was no
contract provision by which the State assumed responsibility for
safety precautions on the job, this Court affirmed the summary
judgment for the State.
In Kemw, the plaintiff was injured when cables broke in a
bucket lift in which he was riding. The plaintiff sued the general
contractor, alleging failure to furnish a safe place of employ-
ment. This Court denied liability under the contract exception
because the contract between the general contractor and plaintiff's
employer did not provide that the general contractor would be
responsible in any way for safety programs. It concluded that the
District Court was correct in ruling that the activity was not
inherently or intrinsically dangerous. It further held that the
issue of actual control was determined by Micheletto and that
because there were no contract provisions obligating the general
contractor to be responsible for safety programs, there was no
negligent exercise of control. Kem~,798 P.2d at 1003.
Umbs argues that Montana Transport owed a duty to him because
it was negligent in exercising retained control over his working
conditions. As he points out, the difference between Micheletto
and Kemp and this case is the extent of control demonstrated by the
general contractor. Regardless of whether Montana Transport had
a duty to Umbs under federal law, we conclude there is a factual
question as to whether it had a duty under state law. Umbsts
testimony, viewed in the light most favorable to him, establishes
that Montana Transport President Ewen, knowing that the truck's
brakes were failing, ordered Umbs to deliver the load. According
to Umbsls affidavit, after the call from Ewen, Umbs's boss,
Sherrodd, called and told him to do what Ewen said to do. When the
facts set forth in Umbsts affidavit are viewed in their most
favorable light, and notwithstanding any written contractual
provisions, Ewen, with Sherrodd's consent and for Ewents own
benefit, took control of Umbs and the truck and negligently ordered
Umbs to drive the truck and deliver the load thereon. These
portions of Umbs's affidavit are uncontroverted. There was no such
exercise of direct control by the general contractors with the
consent of the subcontractors in Micheletto or in Kemp.
The lower court, in its order, quoted Umbslsdeposition. The
affidavits do not contradict the deposition testimony. They do
make a stronger statement in support of Umbsts case. Viewing the
evidence in the light most favorable to Umbs, as we must, we may
only conclude that Umbs has presented a disputed issue of material
fact and that summary judgment for Montana Transport was improper.
This is a unique case and therefore the ruling of this Court
is confined to the singular facts which appear in this record.
Reversed and remanded for further action consistent with this
opinion.
trT\h;trin
don. Henry b l e , R e t i r e p l a c e - of
d Dis
Ju i c e Fre-.
W e concur:
J u s t i c e Diane G . Barz d i d n o t p a r t i c i p a t e .