Lohr v. Zehner et al

Filing 152

OPINION. Signed by Honorable Judge Myron H. Thompson on 6/3/2014. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

RICHARD I. LOHR, II, as
)
Administrator of the Estate )
of Charles David Fancher,
)
Deceased,
)
)
Plaintiff,
)
)
v.
)
)
JOSEPH EARL ZEHNER, III,
)
et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:12cv533-MHT
(WO)

OPINION
Plaintiff Richard I. Lohr, II, as administrator of the
estate

of

Charles

David

Fancher,

filed

this

lawsuit

against defendant Wilmac Enterprises, LLC, among other
defendants.

The lawsuit arises out of a series of highway

collisions that resulted in Fancher’s death.

The cause is

before the court on Wilmac’s motion for summary judgment,
which argues that it should not be vicariously liable for

the

involvement

of

co-defendant

Ricky

Briggs

in

the

collision.1

I.

LEGAL STANDARD

“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.

The court

shall grant summary judgment 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).

The court must view the admissible

evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in favor of that
party.

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

1. Estate administrator Lohr also pled claims for
negligent-and-wanton hiring, entrustment, supervision,
retention, training, and maintenance against Wilmac, but
in his response to this motion for summary judgment, he
abandoned those claims. See Response (Doc. No. 127) at 1.
2

II. BACKGROUND
Briggs is an independent owner-operator of a truck.
Earlier, he signed a one-year independent-contractor lease
agreement with Wilmac.

Under the agreement, he leased his

tractor to Wilmac and granted the company “exclusive
possession, control, and use of the equipment to the
extent

of

complying

with

the

applicable

rules

of

appropriate government agencies” during the term of the
lease.2
§

3(B).

Agreement, Wilmac Ex. 4 (Doc. No. 105-4) at
In

exchange,

the

company

would

“exercise

reasonable efforts to provide freight for hauling by
[Briggs] to permit [him] to keep the equipment in regular
use,” id. at § 5, and compensate him with a portion of any
proceeds of his hauls.

The company provided Briggs with

identifying placards, which included the Wilmac logo and

2. The agreement therefore incorporates 49 C.F.R.
§ 376.12(c), which provides: “The lease shall provide
that the authorized carrier lessee shall have exclusive
possession, control, and use of the equipment for the
duration of the lease. The lease shall further provide
that the authorized carrier lessee shall assume complete
responsibility for the operation of the equipment for the
duration of the lease.”
3

‘MC Number,’ which in turn provided authority to operate
in interstate commerce, as required by the Federal Motor
Carrier Safety Administration. Wilmac also argues that it
terminated this lease agreement on June 30, 2011, and the
company provides evidence to that effect.

However, there

is no evidence that Wilmac notified Briggs of the lease
termination

or

requested

return

of

its

identifying

placards and MC Number.
In late July 2011, Briggs received a call from Kevin
Gibson, the owner of co-defendant Kevin G. Transportation,
Inc.

Gibson offered Briggs a job carrying a trailer of

empty cans to the Coca-Cola plant south of Montgomery,
Alabama.

Briggs accepted the job and followed Gibson’s

instructions as to how and where to pick up a trailer and
a load.

He did not contact Wilmac and, after the job, did

not give Wilmac any portion of the funds.
Early in the morning of August 1, 2011, Briggs was
finishing the Coca-Cola job for Kevin G. Transportation
when he was struck from behind in the first of a series of

4

collisions

leading

to

Fancher’s

death.

After

the

accident, he called Gibson but did not contact Wilmac or
notify the company of the accident.
deposition
understood

that,

at

the

himself

Transportation,

but

to

time
be

operating

of

He testified in
the

working
under

accident,

for
the

Kevin

authority

he
G.
of

Wilmac.

III. DISCUSSION
Wilmac argues that it should not be held liable for
Briggs’s actions because it had terminated his lease a
month prior to the accident.
argues

that,

even

if

the

Furthermore, the company

lease

were

not

terminated,

liability should not attach because Briggs, by hauling
material for Kevin G. Transportation, was acting outside
the scope of his employment at the time of the accident.
Estate administrator Lohr counters that the company is
liable for Briggs’s actions under a strict lease-liability
theory

or,

if

the

court

finds

5

that

the

lease

was

terminated

before

the

accident,

an

apparent-authority

theory.
The court holds that, even if the lease between Briggs
and Wilmac had not been terminated, Wilmac is still not
vicariously liable for Briggs’s actions because Briggs was
operating the vehicle entirely outside the scope of his
relationship with Wilmac at the time of the accident.
Lease agreements between truck owners and interstate
motor

carriers

have

been

subject

to

extensive,

changing, federal regulation for more than 50 years.

and
In

the mid-1950s, Congress discovered that such arrangements
were increasingly common in the interstate motor-carrier
industry.

Instead of owning a fleet of trucks and hiring

employees

to

drive

those

trucks,

motor

carriers

were

contracting with independent owner-operators but exercising
significant control over those contractors’ equipment and
operation.

Congress developed legislation in order “to

correct abuses that had arisen under often fly-by-night
arrangements,”

arrangements

6

that

had

led

to

“a

helter-skelter

operation

of

thousands

of

unregulated

vehicles on the highways as a menace to safety.”

Simmons

v. King, 478 F.2d 857, 866-67 (5th Cir. 1973).3

The

legislation enabled the Interstate Commerce Commission to
regulate
extensive

the

leasing

of

proceedings,

trucking
the

equipment.4

commission

After

promulgated

regulations governing lease arrangements such as Briggs’s.
See 49 C.F.R. § 376.12(c) (“The lease shall provide that
the

authorized

carrier

lessee

shall

have

exclusive

possession, control, and use of the equipment for the
duration of the lease.

The lease shall further provide

that the authorized carrier lessee shall assume complete

3. The Eleventh Circuit has adopted as precedent all
decisions of the former Fifth Circuit Court of Appeals
rendered prior to October 1, 1981.
Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)(en banc).
4. “[T]he Commission is authorized to prescribe, with
respect to the use by motor carriers ... of motor
vehicles not owned by them ... such other regulations as
may be reasonably necessary in order to assure that while
motor vehicles are being so used the motor carriers ...
will be fully responsible for the operation thereof ...
as if they were the owners of such vehicles.” 49 U.S.C.
§ 304(e) (1958).
The current form of this statute is
codified at 49 U.S.C. § 14102(d) and now directs this
authorization to the Secretary of Transportation and
Federal Motor Carrier Safety Administration.
7

responsibility for the operation of the equipment for the
duration of the lease.”).
This

exclusive-control

regulation,

along with

corresponding language in lease agreements, has led to
significant litigation across federal and state courts
concerning

the

extent

of

motor

carriers’

vicarious

liability to the public for negligent and wanton acts by
the

drivers

of

their

leased

vehicles.

Courts

have

interpreted the regulations to impose various forms of
vicarious liability on motor carriers.
courts

imposed

so-called

‘logo

At first, some

liability’

for

all

negligence involving a vehicle that displayed a carrier’s
identifying placards and motor-carrier number, regardless
of the existence of a lease.

See Mellon National Bank &

Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3d Cir.
1961) (imposing strict liability after a lease had been
terminated because the motor carrier had not yet collected
its

placards

from

the

driver/lessor)

superseded

by

regulation, Lease & Interchange of Vehicles (Identification

8

Devices) (49 C.F.R. Part 1057), 3 I.C.C.2d 92, 95-97 (1986)
as recognized in Jackson v. O’Shields, 101 F.3d 1083,
1086-87 (5th Cir. 1996).

Other courts imposed vicarious

liability that mirrored traditional respondeat-superior
principles,

covering

only

those

actions

that

were

reasonably within the scope of employment for the motor
carrier.

See Wilcox v. Transam. Freight Lines, Inc., 371

F.2d 403, 404 (6th Cir. 1967) (“In our opinion, the I.C.C.
regulations do not impose a liability on a carrier using
leased equipment greater than that when operating its own
equipment.”).

Finally, many courts imposed strict-lease

liability:

long

so

as

there

was

a

lease

in

effect,

“exclusive control” and “complete responsibility” meant
that the motor carrier was liable for any negligence
involving the vehicle under lease.

See Morris v. JTM

Materials, Inc., 78 S.W.3d 28, 38-43 (Tex. Ct. App. 2002).
The former Fifth Circuit Court of Appeals decided one
case involving motor-carrier liability for the injury, to
a member of the public, resulting from negligence involving

9

a leased vehicle.
court

held

In Simmons v. King, 478 F.2d 857, the

that,

although

there

was

not

an

agency

relationship between the carrier and the driver under the
applicable

state

law,

the

federal-lease

established such a relationship.

regulations

478 F.2d at 865-67.

In

Simmons, the injury occurred while the truck was carrying
a load for the defendant motor carrier.
Subsequent

to

Simmons,

the

Id. at 863.

Interstate

Commerce

Commission revised the lease regulations to remove certain
obligations that the earlier regulations had placed on
motor carriers, particularly with regard to the end of the
relationship.

In

the

course

of

promulgating

that

regulation, the Interstate Commerce Commission emphasized
that the nature of vicarious liability under a regulated
lease is a matter of state, not federal, law:
“We prefer that courts decide suits of
this nature by applying the ordinary
principles of State tort, contract, and
agency law.
The Commission did not
intend that its leasing regulations
would supersede otherwise applicable
principles of State tort, contract, and
agency law and create carrier liability
10

where none would otherwise exist. Our
regulations should have no bearing on
this subject. Application of State law
will produce appropriate results.”
Lease & Interchange of Vehicles, 3 I.C.C.2d 92, 93; see
also Petition to Amend Lease and Interchange of Vehicle
Regulations, 8 I.C.C.2d 669 (1992) (discussing neutral
effect of carrier regulations on classification for state
worker’s

compensation

schemes).

An

agency’s

interpretation of its own regulations is “controlling
unless

plainly

regulation.”

erroneous

or

inconsistent

with

the

Ramos-Barrientos v. Bland, 661 F.3d 587,

596 (11th Cir. 2011) (quoting Auer v. Robbins, 519 U.S.
452, 461 (1997)) (internal quotation marks omitted).
This

court

cannot

find

that

the

commission’s

interpretation was erroneous or inconsistent.

The text

of the regulation requires certain language within lease
agreements, but it does not impose any liability scheme
directly.

It is reasonable to interpret the regulation

as leaving that question to various States’ common-law
courts.
11

The court will therefore look to Alabama state law to
determine the scope of vicarious liability of a lessee
under a federally regulated carrier lease.

The Alabama

Supreme Court has addressed this issue several times.
See Vulcan Freight Lines, Inc, v. Buckelew, 386 So.2d
433, 435-37 (Ala. 1980) (and cases cited).

The court has

made clear that vicarious liability attaches only if the
driver was operating the vehicle “within the line and
scope of his employment with the carrier-lessee.”

Id.

Admittedly, there is dictum in an Eleventh Circuit
Court of Appeals case that suggests that federal law may
in fact determine carriers’ liability to the public for
negligence by a driver of a leased vehicle. Judy v. TriState Motor Transit Co., 844 F.2d 1496, 1501 (11th Cir.
1988).

In that case, the court held that, while federal

regulations

established

relationship

between

leased

vehicles,

a

statutory

carrier-lessees

the

legal

and

employment
drivers

consequences

of

of

that

relationship in the context of worker’s compensation was

12

a matter of state law. Id. at 1501-02. However, in
dictum,

the

Judy

court

distinguished

such

worker’s

compensation issues from liability to the general public,
noting the greater federal interest in regulating that
relationship and quoting a new Fifth Circuit opinion that
“‘the traditional common law doctrine of master-servant
relationships and respondeat superior does not apply’”
with regard to liability to the public.

Id. at 1501

(quoting Price v. Westmoreland, 727 F.2d 494, 497 (5th
Cir.

1984)).

In

light

of

the

Interstate

Commerce

Commission’s statements that federal regulations do not
control

the

scope

of

liability

by

carriers

and

the

cursory treatment of this issue in Judy, this dictum does
not persuade this district court that federal law should
control on this issue.
However, even if federal law were to control, the
court would still hold Wilmac liable for Briggs’s actions
only if they were within the scope of his employment by
Wilmac.

While Simmons holds that there is a relationship

13

establishing vicarious liability by motor carriers, it
does not define clearly the scope of that liability.
However, the authorizing statute makes clear that motor
carriers should be liable for the operation of leased
vehicles “as if the motor vehicles were owned by the
motor carrier.” 49 U.S.C. § 14102(a)(4).

The former

Fifth Circuit addressed the meaning of this provision in
White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir. 1979):
“To make them assume the burden of liability for the harm
caused by their leased vehicles without according them
the protection given employers under state substantive
law would broaden their exposure to suit beyond that to
which employers in fact are subject. We find no warrant
for such strict liability in the federal law.”
599 F.2d at 53.

White,

Similarly, if it were applying federal

law, this court would accord Wilmac the same protection
against liability as an employer would receive; it would
not be liable for actions by Briggs outside the scope of
his employment.

14

Having held that liability will attach to Wilmac only
if Briggs was acting within the scope of his employment
with the company, the court will turn to the facts of the
case.

There is no dispute that, in this case, Briggs was

acting outside the scope of his employment with Wilmac.
In fact, he was acting for the benefit of another motorcarrier company, Kevin G. Transportation.

There is no

evidence that Wilmac condoned or encouraged such side
jobs.

Therefore,

Wilmac

cannot

be

held

vicariously

liable for Briggs’s actions.
***
For the above reasons, summary judgment will be
entered

in

favor

administrator Lohr.

of

Wilmac

and

against

estate

An appropriate judgment will be

entered.
DONE, this the 3rd day of June, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

15