Superior Court of Connecticut,Judicial District of New Haven.

A & P TRUCKING, INC.

v.

MKM TRANSPORTATION SERVICES, INC.

 

Feb. 26, 2008.

 

COSGROVE, J.

The plaintiff, A & P Trucking, Inc., (“A & P”) alleges it entered into a “transportation broker contract” with the defendant MKM Transportation Services, Inc., (“MKM”) on October 22, 2003. The plaintiff asserts that the defendant agreed to have machinery “consigned to the plaintiff transported for the plaintiff to Florida for an agreed price.”The plaintiff alleges that an agent of the defendant, J.F. Lomma, Inc., (“Lomma”) caused the machinery to be damaged and that the plaintiff became liable to third persons because of the damage. In the first count of the complaint the plaintiff claims that the plaintiff breached the transportation broker contract when its agent, J.F. Lomma, Inc., damaged the machinery. In the second count the plaintiff seeks recovery from the defendant on a theory of common law indemnification.

 

The burden of proof by the preponderance of the evidence is upon the plaintiff.

 

The court finds the following facts from the testimony and exhibits introduced during the trial of this case on November 21, 2007. The plaintiff is a licensed and insured interstate trucking company with a place of business in Wallingford, Connecticut. It is in the business of transporting freight. One of the plaintiff’s regular customers was Plastics One, Inc., of Wallingford, Connecticut (“Plastics One”). On or about October 20, 2003, Plastics One called the plaintiff and asked the plaintiff if it could arrange to transport an injection molding machine from its Wallingford plant to its customer, Security Plastics of Miami Lakes, Florida. Plastics One had reconditioned the machine and had sold it to Security Plastics for $35,000.

 

The plaintiff advised Plastics One that he would be able to arrange for transportation. In fact the plaintiff did not have equipment available to provide these services. The plaintiff called the defendant MKM and asked the defendant to identify an interstate trucker who would be able to provide the required transportation services. The defendant would be paid for these brokerage services by the trucking entity that actually transported the injection molding machine. As a transportation broker, the defendant does not own any trucks and does not hold any licenses to transport goods on an interstate basis.

 

Upon receiving the plaintiff’s query, the defendant’s employee, Chuck Kulak, called several trucking companies and ultimately determined that Lomma was willing to accept the load for a price of $750.00. The plaintiff would be the billing agent and the broker’s fee to MKM would be $75.00.

 

On October 22, 2003, Lomma’s agent arrived at the Plastics One plant in Wallingford and the injection molding machine was loaded onto the truck. A Straight Bill of Lading was issued by Plastics One identifying Security Plastics as the Consignee and Plastics One as the Shipper. The bill of lading had been prepared by Plastics One, and A & P Trucking was named the carrier in a space at the top of the form. A & P never signed the bill of lading. Lomma picked up the machinery at the plant of Plastics One on October 22, 2003, and signed the bill of lading as the carrier. Lomma became bound by the terms of the bill of lading. The bill of lading acknowledges receipt of the machine by Lomma and describes the machine as “in apparently good order.” Plastics One did not object to Lomma transporting the machinery.

 

Sometime between October 22, 2003, and October 24, 2003, the machinery was damaged and rendered a total loss while it was in the control of Lomma. On October 24, 2003, the injection molding machine was returned to the shipper, Plastics One.

 

Subsequently, the president of Plastics One called Alan Platt, president of A & P. Mr. Platt was informed that the issue of the damage to the machine had to be “taken care of” because Security Plastics had already paid $35,000 for the machine and Plastics One would have to refund the purchase price. Mr. Platt submitted an insurance claim but it was rejected because the plaintiff’s insurance only covered its trucks, not those of Lomma. Under pressure from Plastics One, the plaintiff agreed on November 14, 2003, to pay the $35,000 to Plastics One. In essence, it agreed to buy the injection molding machine. In this transaction the plaintiff was unrepresented by an attorney and did not obtain an assignment of any rights that Plastics One might have had against Lomma as the carrier.

 

With regard to the First Count, the success of the plaintiff’s claim depends upon the terms and conditions of the agreement between the plaintiff and the defendant. The plaintiff claims that when it sought the defendant’s assistance in locating a willing trucker that it specifically told the plaintiff that it would not work with Lomma because of prior bad experiences. There is nothing in writing to reflect and corroborate the testimony of Alan Plan, president of the plaintiff. The contemporaneous notes of MKM do not document any such limitation. As such, there is insufficient credible evidence to support the plaintiff’s contention that Lomma had been excluded as a potential carrier. The credible components of the oral contract between the plaintiff and the defendant was that the defendant would find a ready, willing, and able trucker for the Plastics One job. This they did. The defendant found such a carrier and its duties under the agreement were fully performed. The defendant had nothing to do with the loading or transporting of the machinery. There was no evidence that the defendant had any control over Lomma or any of its employees or agents, and therefore the plaintiff failed to prove that there was a principal-agent relationship between the defendant and Lomma. See, e.g., Wesley v.. Schaller Subaru, Inc., 277 Conn. 526, 543-44, 893 A.2d 389 (2006). There was no evidence as to what caused the damage to the machinery. There was only evidence that the machinery was damaged while it was in the control of Lomma, an independent contractor. There is no evidence that at the time the machinery was damaged that the plaintiff had any ownership interest in the machinery. The plaintiff has not met its burden of proof with regard to the first count.

 

In order to establish liability on the second count alleging indemnification, the plaintiff must prove either an express agreement or a common-law indemnification claim. As there was no written contract between the parties, the only possible avenue of recovery for the plaintiff is under a common law tortious indemnification theory. “[T]ortious indemnification is an action that arises between two tortfeasors, one, whose passive negligence resulted in a monetary recovery by the plaintiff, and a second, whose active negligence renders him liable to the first by way of reimbursement … [I]n order to recover under a theory of tortious indemnification, the first tortfeasor, seeking indemnification, must demonstrate that the second tortfeasor’s active negligence, rather than the [first tortfeasor’s] own passive negligence, was the direct, immediate cause of the harm in question.”(Citations omitted; internal quotation marks omitted.) ATC Partnership v. Coats North America Consolidated, 284 Conn. 537, 551-52, 935 A.2d 115 (2007); see Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 415-16, 207 A.2d 732 (1965) (“The plaintiff in an action claiming an implied obligation of indemnity against an independent contractor cannot recover unless he proves that the active negligence and wrong which caused the injury … were the negligence and wrong of the defendant … or, in other words, that the defendant was the party primarily liable for the wrongful act which occasioned the injury in respect of which the plaintiff has been compelled to pay damages.”) A prerequisite for a viable tortious indemnification claim is that the plaintiff and the defendant are joint tortfeasors. ATC Partnership v. Coats North America Consolidated, supra, 284 Conn. at 552.

 

Thus, in order to succeed in its common law tortious indemnification claim, A & P must prove that it was passively negligent and that MKM, or its agent, was actively negligent and therefore responsible for the damage to the machine. A & P has failed to produce the evidence necessary to support this claim. First, although A & P paid Plastics One for the damage to the machine and thus may appear to be in a position to seek indemnification from a party that played a more active role in causing the damage, there is no evidence that A & P was actually a tortfeasor. Second, the only party that the record indicates could be liable for the damage to the machine was Lomma, and Lomma is not a party to this action.As noted earlier, there is no evidence that MKM and Lomma were in a principal-agent relationship, nor that the defendant had any control over the actions of Lomma, and therefore MKM cannot be liable for Lomma’s negligence. Finally, there is no agency or contractual relationship between A & P and Lomma on which to base a claim of indemnification. The plaintiff has not met its burden of proof with regard to the second count.

 

It may also be noted that Lomma is an interstate motor carrier subject to federal law, and in particular the Carmack Amendment, a federal statute that absolutely preempts state common law with regards to claims for loss or injury to property transported in interstate commerce. 49 U.S.C. § 14706 (1996); see Adams Express Co. v. Croninger, 226 U.S. 491, 505-06, 33 S.Ct. 148, 57 L.Ed. 314 (1913). Any claims made directly against Lomma would be governed by the applicable federal laws. The plaintiff’s claims against MKM, however, are not preempted by federal law because the Carmack Amendment does not apply to brokers. Chubb Group of Ins. Cos. v. H.A. Transportation Systems, Inc., 243 F.Sup. 1064, 1068-69 (C.D.Cal.2002).

 

Judgment may enter in favor of the defendant. Costs shall be taxed by the clerk.