of a third party independent contractor. Therefore, the Court grants Defendant Shaw's motion for summary judgment.
II. Defendant Putnam's Motion for Summary Judgment
Defendant Putnam also moves for summary judgment, claiming that it did not own, operate, lease or control the truck at the time of the accident. (Def. Putnam's Mem. at 19-23). In the alternative, Defendant Putnam argues that, even if it did not terminate its lease with Kish before the accident, it cannot be held liable for the negligent acts of McFane because the delivery that resulted in the collision was conducted without the permission, authorization, or knowledge of Putnam. (Def. Putnam's Mem. at 24-27). Plaintiffs and Defendant Shaw argue that Defendant Putnam did not properly terminate its lease with Kish prior to the accident. (Pls.' Mem. at 3-5). Plaintiffs further claim that, on the date of the accident, the truck contained Defendant Putnam's ICC authorization decals. (Peter Tartaglione Deposition, Correction Sheet, p. 134, line 16).
On February 13, 1987, Defendant Putnam and Kish entered a lease providing for the transportation of cargo in interstate commerce. Under the terms of the lease, Defendant Putnam is the carrier and it leases equipment from Kish, the owner, in order to transport property for hire. Defendant Putnam claims that it terminated the lease on October 2, 1987, approximately two months prior to the accident. Plaintiff and Defendant Shaw argue that the lease was not terminated properly.
The lease provides for termination by either party "by mailing or delivering to the other party . . . two copies of a written notice of termination which shall be effective either upon receipt of the notice of termination from the other party or at such later date as may be specified in that notice. The party receiving notice of termination shall receipt the copy of such notice and return such receipted copy to the other party." February 13, 1987 Equipment Lease Agreement Between Owner and Carrier [hereinafter "Lease"], P3. On October 2, 1987, Kish called James Bell, Vice President of Defendant Putnam, requesting that the lease be terminated (Def. Putnam's Mem. at 6), and Bell sent Kish a notice of termination by certified mail. (Def. Putnam's Mem. at 6; Def. Putnam's Exhibit H). Mr. Kish signed the return receipt on the notice of termination on October 3, 1987. (Def. Putnam's Mem. at 6).
According to regulations promulgated pursuant to the ICA, leases providing for the transportation of cargo in interstate commerce must "clearly specify which party is responsible for removing identification devices from the equipment upon the termination of the lease and when and how these devices . . . will be returned to the carrier." 49 C.F.R. § 1057.12(e) (1987). The Lease provides that the "when possession of equipment is returned by carrier [Defendant Putnam] to owner [Kish], owner shall furnish a . . . receipt to carrier and at the same time remove and return to carrier all identification devices and other property furnished by carrier to owner." Lease, P5.
Eileen Jenkins, Defendant Putnam's Office Manager, testified that on October 8, 1987, almost two months prior to the accident, McFane, acting on behalf of Kish, returned to Defendant Putnam portions of the ICC authorization decals. (Eileen Jenkins' Deposition at 42-44). Furthermore, pursuant to the lease, Kish was required to place $ 300.00 in escrow for "permits or any current and/or past due balance incurred for the duration of the lease," to be returned upon termination of the lease. Lease, P12. On November 9, 1987, Defendant Putnam returned to Kish $ 300.00 from the escrow account. (Def. Putnam's Mem. at 13; Defendant Putnam's Exhibit M, p. 50, line 10 through p. 51, line 7). Additionally, the Lease contains a receipt signed by both the carrier and the owner, acknowledging receipt of the equipment from Defendant Putnam in acceptable condition. Lease, at 2. This receipt is required under P5 of the Lease as a condition of termination. Lease, P5.
On the other hand, the invoice of the shipment made on December 7, 1987 contains Defendant Putnam's ICC authorization number. (Plaintiffs' Exhibit B). Plaintiff Peter Tartaglione stated in a correction sheet to his deposition testimony that he "saw [on the truck] a sign with a red background and block letters," although he did "not recall the words which appeared on the sign." (Peter Tartaglione Deposition, Correction Sheet, p. 134, line 16). Moreover, no Putnam employee inspected the truck upon termination of the lease to determine whether the decals had been properly removed by Kish and McFane. (Pls.' Mem. at 4-5; Norma Giffords Affidavit, P8). However, such an inspection is not required of Defendant Putnam under the Lease, which requires the owner, Kish, to return the decals and other authorizations. Lease, P5.
Upon review of the evidence presented on this motion for summary judgment, the Court finds that the Lease was terminated properly and that the appearance of Defendant Putnam's ICC authorization on the December 7, 1987 invoice was due to the fault of Kish and not of Defendant Putnam. Furthermore, even if Kish failed to remove the decals upon termination of the lease (the Court makes no such finding in light of the lack of reliable evidence on this point), Defendant Putnam is not liable for the collision because the lease places the responsibility for removing the decals on Kish and not on Defendant Putnam. The Court also finds that there is no question of material fact precluding a grant of summary judgment in Defendant Putnam's favor. Finally, in light of the Court's finding that the Lease was terminated properly, the Court need not consider Defendant Putnam's alternative argument that Kish did not have Defendant Putnam's permission to use Defendant Putnam's ICC authorization for the delivery that led to the accident.
For the reasons stated above, the Court grants Defendants' motions for summary judgment. The clerk is ordered to dismiss the complaint.
DATED: New York, New York
April 14, 1992
Kimba M. Wood
United States District Judge
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