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 Thirteenth Judicial 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 

~istrict Court 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 this Court is whether the District Court 

erred in granting summary judgment in favor of Getter Trucking. 

Getter Trucking was a common motor carrier of property under 

authorities issued by 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 jurisdiction of 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 and Getter Trucking entered into a written agreement in 

February 1980 whereby Toombs leased a tractor with driver to Getter 

Trucking. Pursuant to the contract, Toombs transported commodities 

under tariff on behalf of Getter Trucking. The contract provided 

that Toombs was to receive 67 percent of the net revenue derived by 

Getter ~rucking. The lease agreement between the parties ran from 

~ebruary 27, 1980, through February 21, 1981. During the course of 
the relationship, Toombs did not complain that he was not being 

paid the correct amount. 

On December 10, 1982, Toombs brought suit alleging that he was 

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 services provided by Toombs. However, Toombs alleges 

that Getter Trucking charged its customers less than it was 

required to charge pursuant to the established tariffs. Getter 

Trucking denies charging less to its customers than was required by 

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 Getter Trucking. A District Court may 

grant summary judgment when: 

[Tlhepleadings, depositions, answersto interrogatories, 

and admissions on file, together with the affidavits, if 

any, show that there are no genuine issues of material 

fact and that the moving party is entitled to judgment as 

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 of material 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) , 148 Mont. 

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. 
Getter Trucking concedes that it is required by federal law to 

charge its customers the rates specified by the applicable tariffs. 

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 

motor vehicle, is governed by the contract between the two parties. 

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 

specified amount, the contractual term net revenue derived can only 

mean that amount which Getter Trucking was obligated by law to 

charge. Getter Trucking, while denying it charged less than the 

rates established by 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 Toombs shall receive a certain percentage of 
Getter Trucking's net 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 obligated by 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 Toombs were free to negotiate any agreement they desired. The 

result of the parties1 negotiations as to Toombs' compensation is 

evident in the contract executed by the parties. In this 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 partiest contract governs 

in this case and we agree with the District Court that Getter 

Trucking satisfied its obligations to Toombs under the terms of the 

contract. 

The judgment of the District Court is affirmed. 

Justice 
We concur: 
January 21, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

V. JOE LECKIE, Esq. 

Attorney at Law 

300 First Federal Savings, Bldg. 

2929 Third Avenue North 

Billings, MT 59101 

JOHN R. DAVIDSON, Esq. 

Transwestern 11, Ste. 111 

490 No. 31st St. 

Billings, MT 59101 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

Deputy L