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 ThirteenthJudicial 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 ~istrictCourt 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 thisCourt iswhether theDistrictCourt erred in granting summary judgment in favor of Getter Trucking. Getter Trucking was a common motor carrier of property under authorities issuedby the Interstate Commerce Commission (ICC)and various state regulatory agencies. Getter ~rucking had tariffs on file with the ICC. Federal law provides that a motor carrier providing transportation service subject to the jurisdictionof 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 andGetter Trucking entered into awritten

### agreement 

### in February 1980whereby Toombs leased a tractorwith driver to Getter Trucking. Pursuant to the contract, Toombs transported commodities under tariff on behalf of Getter Trucking. The contract provided that Toombswas to receive 67percent of the net revenuederived by Getter ~rucking.The lease agreement between the parties ran from ~ebruary 27, 1980,through February 21, 1981. During the course ofthe relationship, Toombs did not complain that he was not being paid the correct amount. On December 10, 1982,Toombsbrought suitalleging that hewas 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 servicesprovided by Toombs. However, Toombs alleges that Getter Trucking charged its customers less than it was required to charge pursuant to the established tariffs. Getter Truckingdenies charging less to its customers thanwas requiredby 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 GetterTrucking. A District Courtmay grant summary judgment when: [Tlhepleadings,depositions, answersto interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there are no genuine issues of material fact and that themoving party 

### is entitled to judgmentas 

### 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 ofmaterial 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)

## , 148Mont. 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.

### GetterTrucking concedes that it is 

### requiredby 

### federal lawto 

### charge its customersthe rates specifiedby the applicabletariffs. 

### 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 motorvehicle, is governed by the contractbetween the twoparties. 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 specifiedamount, the contractual term

### net revenuederived canonly

mean that amount which Getter Trucking was obligated by 

### law to charge. Getter 

### Trucking, while denying it 

### charged less 

### than the rates establishedby 

### 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 the parties governs their 

### relationship. The 

### contract provides that

### Toombsshallreceivea certain percentage ofGetter Trucking'snet revenue. The District Court, in interpreting this term of the contract, stated that: The contractual 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 obligatedby 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 Toombswere free to negotiate any agreement they desired. The result of the parties1negotiations as to Toombs' compensation is evident in the contract executedby theparties. Inthis 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 partiestcontract governs in this case and we agree with the District Court that Getter Trucking satisfied its obligations to Toombsunder the terms of the contract. The judgment of the District Court is affirmed.

JusticeWe concur:January21, 1993 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwas sentby United Statesmail, prepaid, tothe followingnamed:

V.JOELECKIE, Esq. Attorneyat

### Law 300FirstFederalSavings,Bldg. 2929Third Avenue North Billings, MT59101 JOHN R.DAVIDSON, Esq. Transwestern 11,Ste. 111 490 No. 31stSt. Billings,MT 59101

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA Deputy L