United States District Court, W.D. Oklahoma
GINA MILITELLO, now ERIN, Individually and as Administratrix of The Estate of ASHLEY NICOLE CRABTREE, Deceased, Plaintiff,
ICAN LOGISTICS, INC., a Foreign For Profit Corporation; ZEYS WANG, an Individual; and HONGYUE TRUCKING, INC., Defendants. and ICAN LOGISTICS, INC., Defendant/ Third-Party Plaintiff,
WESCO INSURANCE COMPANY, Third-Party Defendant.
HEATON CHIEF U.S. DISTRICT JUDGE.
Gina Militello filed this wrongful death action
individually and on behalf of her deceased daughter, Ashley
Nicole Crabtree, against ICAN Logistics, Inc.
(“ICAN”),  Zeyu Wang, and Hongyue Trucking, Inc.
(“Hongyue”). Her claims arise out of a vehicle
accident involving the decedent and defendant Wang. ICAN
filed a third-party complaint against Wesco Insurance Company
(“Wesco”), who then filed a counterclaim and
crossclaims for declaratory judgment against ICAN, Militello,
Hongyue and Wang. The court previously denied dispositive
motions filed by Wesco and Ms. Militello. In this order it
will consider a motion for summary judgment filed by ICAN.
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A genuine dispute as to a material
fact ‘exists when the evidence, construed in the light
most favorable to the non-moving party, is such that a
reasonable jury could return a verdict for the non-moving
party.'” Carter v. Pathfinder Energy Servs.,
Inc., 662 F.3d 1134, 1141 (10th Cir. 2011) (quoting
Zwygart v. Bd. of Cnty. Comm'rs, 483 F.3d 1086,
1090 (10th Cir.2007)). Considering ICAN's motion filed
under this standard, the court concludes it should be
November 8, 2015, defendants Hongyue, as lessor, and ICAN, as
lessee, executed a one year Equipment Performance Lease
Agreement (“lease” or “agreement”).
The agreement provided that Hongyue would lease a tractor and
a trailer, both of which were specifically identified, to
ICAN, and that Hongyue would “employ a solo driver
operating this equipment.” Doc. #70-1, p. 1, ¶
With respect to the driver the agreement also stated that
“Lessor shall, by its own choosing, employ personnel to
driver [sic].” Id. at p. 2, ¶8. The lease
further provided that:
Lessor shall indemnify and be liable to Carrier for each
accident for any loss or damage to third person, or property,
or to Carrier's equipment which results from the conduct
of Lessor and his, or her agents or employees. Lessor shall
be liable for the entire loss or damage to third persons or
properties resulting from his or her conduct or that of his,
or her agents or employees. This shall include, but is not
limited to, colliding with third parties, structures,
vehicles, loss of or damage to cargo due to the negligence of
or the improper or negligent securing by Lessor, his, or her
agents or employees.
daughter was killed when her vehicle collided with a
tractor-trailer driven by Zeyu Wang on March 6, 2016, in
Oklahoma City, Oklahoma. In the amended complaint
(“complaint”) plaintiff alleges that defendant
Hongyue had leased the tractor and trailer and provided the
driver, Wang, to ICAN. She alleges that both ICAN and Hongyue
should have known that Wang, who purportedly left California
around March 5, 2016, transporting cargo in the
tractor-trailer, was not qualified to operate the vehicle
because he could not speak or write English sufficiently to,
among other things, understand traffic signs and make legible
entries on reports and records. Plaintiff alleges that Wang
violated federal motor carrier regulations by failing to take
mandatory rest breaks while driving from California. She
specifically claims that when the accident occurred Wang had
been driving more than eleven hours, been on duty more than
fourteen hours and had falsified his record of duty logs.
Plaintiff contends that, even though there was a sign on the
road where the accident occurred which stated
“‘Congestion Be Prepared to Stop, ' Wang
negligently struck the rear of Crabtree's vehicle,
fatally injuring her daughter. Doc. #15, p. 4, ¶¶
28-29. Plaintiff asserts claims for negligence and negligence
per se against ICAN, Wang and Hongyue.
filed a crossclaim against Hongyue, asserting it is entitled
to contractual indemnity pursuant to the terms of the lease
agreement they executed and common law indemnity for any
liability imposed in this action. ICAN claims that Hongyue
breached the agreement by failing to list it as an additional
insured on an insurance policy Hongyue obtained from Wesco.
ICAN also filed a third-party complaint against Wesco, in
which it alleged that Wesco also “breached its duty and
the Lease Agreement by failing to make ICAN an additional
insured under its policy.” Doc. #18, p. 2, ¶6.
has moved for summary judgment against Hongyue on its
indemnity crossclaim. It contends the agreement
“clearly and unequivocally states that Hongyue will
indemnify ICAN for any damages caused by its [Hongyue's]
employees when colliding with third-parties.” Doc. #70,
court begins by determining which law applies to the contract
at issue. Because jurisdiction in this case is based on
diversity of citizenship, the choice-of-law provisions of
Oklahoma, the forum state, are applied to determine the law
which governs the interpretation of the lease agreement. See
Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d
882, 887 (10th Cir. 1991) (when interpreting a contract,
“[w]e look to the conflict of laws rules of ... the
forum state[ ] to determine which state's laws will be
controlling”). Oklahoma's choice-of-law rules for
contract actions are statutory: “A contract is to be
interpreted according to the law and usage of the place where
it is to be performed, or, if it does not indicate a place of
performance, according to the law and usage of the place
where it is made.” 15 Okla. Stat. § 162. When the
agreement does not directly or implicitly indicate the place
of performance, the court will apply the law of the state of
contracting. Rhody v. State Farm Mut. Ins. Co., 771
F.2d 1416, 1420 (10th Cir.1985).
those principles leads to the application of California
The agreement is silent as to place of performance but the
court assumes it was executed in California, as both ICAN and
Hongyue are California corporations. In addition, the agreement
contains a choice of law clause stating that “This
writing constitutes the entire agreement between the parties
and shall be governed by the laws of California.” Doc.
#70-1, p. 2. California has a strong policy favoring the
enforcement of freely negotiated choice-of-law clauses. See
Kaul v. Mentor Graphics Corp., 2016 WL 6249024, at
**6, 8 (N.D.Cal. Oct. 26, 2016, appeal filed (9th Cir.
November 22, 2016) (No. 16-17139).
California law, in general, an indemnity agreement “is
construed under the same rules as govern the interpretation
of other contracts.” Crawford v. Weather
ShieldMfg., Inc., 187 P.3d 424, 430 (Cal.
2008). Effect is given to the parties' mutual
intent, ascertained from the contract language, if it is
clear and explicit. Id. (citing Cal. Civ. Code,
§§ 1636, 1638. The contract's words are to be
understood in their ordinary and popular sense, unless the
parties have indicated a special meaning.” Id.
The goal “is to give effect to the intent of the