Green et al v. Markovitch et al
Filing
36
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 4/19/2019. (PSM)
FILED
2019 Apr-19 AM 10:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
JELLEANER N. GREEN,
et al.,
Plaintiffs,
v.
ROBERT LEE
MARKOVITCH, et al.,
Defendants.
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7:18-cv-00098-LSC
MEMORANDUM OF OPINION
Before the Court is Defendants Robert Lee Markovitch (“Markovitch”)
and Eagle Logistics Services, Inc.’s (“Eagle”) motion for partial summary
judgment. (Doc. 29.) The motion has been briefed and is ripe for review. For
the reasons stated below, Markovitch and Eagle’s motion for partial
summary judgment (doc. 29) is due to be GRANTED in PART and DENIED
in PART.
I.
BACKGROUND 1
1
The facts set out in this opinion are gleaned from the parties’ submissions of facts
claimed to be undisputed, their respective responses to those submissions, and the
Court’s own examination of the evidentiary record. These are the “facts” for summary
judgment purposes only. They may not be the actual facts. See Cox v. Adm'r U.S. Steel
& Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994). The Court is not required
to identify unreferenced evidence supporting a party’s position. As such, review is limited
to exhibits and specific portions of the exhibits specifically cited by the parties. See
Chavez v. Sec’y, Fla. Dept. of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (“[D]istrict court
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This is a personal injury lawsuit arising out of a motor vehicle accident
involving a commercial tractor-trailer and a passenger vehicle. The accident
happened at approximately 1:30 PM on July 4, 2016 on I-20/59 in Sumter
County, Alabama. Plaintiff Jelleaner Green (“Green”) was driving a 2016
Chevrolet Malibu. Plaintiff Diane Neal (“Neal”) was seated in the Malibu’s
front passenger seat. Defendant Markovitch was driving a commercial
tractor-trailer for Defendant Eagle. As Green was driving in the right-hand
lane, she saw Markovitch’s truck approach her vehicle from behind in the
left-hand lane and move alongside her vehicle. Markovitch then changed
lanes and struck Plaintiffs’ vehicle. As a result of the impact, the Plaintiffs’
vehicle spun in front of Markovitch’s vehicle, which pushed the Plaintiffs’
vehicle until it came to a stop on the interstate. Dash camera video indicates
that Markovitch was traveling approximately 75 miles per hour when the
accident happened. Green was driving about 70 miles per hour, which was
the speed limit. After the vehicles came to a stop, Plaintiffs exited their
judges are not required to ferret out delectable facts buried in a massive record . . . .”)
(internal quotations omitted).
These facts are taken from the parties’ “Undisputed Material Facts” sections of the parties’
pleadings in support of and opposing summary judgment. While the parties dispute the
relevance and materiality of some of the facts contained herein, they agree that they are
undisputed, unless otherwise noted. The Court views the facts in the light most favorable
to the non-moving party. Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 899
(11th Cir. 2012).
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vehicle through the passenger door and spoke to Markovitch. Green testified
that during this conversation Markovitch appeared “spaced-out.” (See Doc.
29-23 at 27.) According to Plaintiffs, Markovitch told them that he did not see
their vehicle. Markovitch claims that this was because Plaintiffs’ vehicle was
in his blind spot. After the accident, Markovitch remained at the accident
scene, called 911, and took pictures of the vehicles involved. He did not
receive a traffic citation. Plaintiffs were transported by ambulance to the
hospital where they were treated and released that same day.
At the time of the accident, Markovitch had been driving for
approximately 1 hour and 34 minutes after having spent around nineteen
hours in his sleeper berth. Markovitch was 32 years old and had previously
been trained to drive commercial vehicles at truck driving school. He
obtained his commercial driver’s license (“CDL”) on July 8, 2014. On July 28,
2015, Markovitch received a medical examiner’s certificate, which qualified
him to drive commercial motor vehicles for two years. In August 2015,
Markovitch applied to work as a truck driver for Eagle.
On August 24, 2015, Eagle obtained Markovitch’s motor vehicle
record, which revealed a clean driving record. Eagle also ran a “PSP Detailed
Report” on Markovitch to obtain Federal Motor Carrier Safety Administration
information about him. Before hiring Markovitch, Eagle made inquiries with
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Markovitch’s former employers and administered a pre-employment drug
test. Markovitch tested negative for drugs and passed Eagle’s road
evaluation test. Eagle then trained Markovitch on defensive driving and gave
him a Federal Motor Carrier Safety Regulations (“FMCSR”) pocketbook.
In his employment application, Markvovitch noted that he had
previously been involved in a single vehicle accident when his commercial
vehicle jack-knifed in the snow on December 23, 2014. He also disclosed
that he had received citations for failing to obey traffic signals in Kentucky on
April 16, 2015 and in Virginia on March 4, 2015. Based on its preemployment review of Markovitch, Eagle determined that he was qualified to
operate a commercial motor vehicle under the FMCSR, but assigned him 25
points on its driver’s point system.
In September 2015, Markovitch signed Eagle’s “Points and Events
Page” and acknowledged that “upon reaching a total of 4 events and/or 30
points, my employment will be terminated.” (See Doc. 29-19 at 2.) Eagle
disputes that its policy is to automatically terminate drivers who reach an
assessment of 30 points. However, it admits that once a driver reaches 30
points it reviews the driver’s record to determine whether to retain and train
the driver or terminate employment. On November 20, 2015, Markovitch
received a speeding ticket for driving 6 to 10 miles over the speed limit. While
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employed by Eagle, he also received a citation for a flat tire and two
overweight citations. Eagle did not assess Markovitch any points for these
incidents. Because the accident involving Plaintiffs raised Markovitch’s point
total to more than 30 points, Eagle terminated his employment soon after the
accident occurred.
II.
STANDARD
Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact 2 and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if
“the record taken as a whole could lead a rational trier of fact to find for the
nonmoving party.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004). A genuine dispute as to a material fact exists “if the
nonmoving party has produced evidence such that a reasonable factfinder
could return a verdict in its favor.” Greenberg v. BellSouth Telecomms., Inc.,
498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge
Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should
not weigh the evidence, but determine whether there are any genuine issues
2
A material fact is one that “might affect the outcome of the case.” Urquilla-Diaz v.
Kaplan Univ., 780 F.3d 1039, 1049 (11th Cir. 2015).
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of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986).
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “view[ing] the materials presented and
all factual inferences in the light most favorable to the nonmoving party.”
Animal Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th
Cir. 2015) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
However, “unsubstantiated assertions alone are not enough to withstand a
motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525,
1529 (11th Cir. 1987). Conclusory allegations and “mere scintilla of evidence
in support of the nonmoving party will not suffice to overcome a motion for
summary judgment.” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016)
(per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860
(11th Cir. 2004)). In making a motion for summary judgment, “the moving
party has the burden of either negating an essential element of the
nonmoving party’s case or showing that there is no evidence to prove a fact
necessary to the nonmoving party’s case.” McGee v. Sentinel Offender
Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts
must use caution when granting motions for summary judgment, “[s]ummary
judgment procedure is properly regarded not as a disfavored procedural
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shortcut, but rather as an integral part of the Federal Rules as a whole.”
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
III.
DISCUSSION
Markovitch and Eagle seek summary judgment on all of Plaintiffs’
claims against them except Count One, Negligence. Plaintiffs concede that
summary judgment is due to be granted on their claims of negligent and
wanton maintenance, service, and repair; negligent and wanton hiring and
training; and wanton supervision, retention, and entrustment. (Doc. 34 at 2.)
The Court will address each of Plaintiffs’ remaining claims against
Markovitch and Eagle in turn.
A.
Wantonness
Under Alabama law, wantonness is “the conscious doing of some act
or the omission of some duty while knowing of the existing conditions and
being conscious that, from doing or omitting to do an act, injury will likely or
probably result.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007) (citing
Bozeman v. Cent. Bank of the S., 646 So. 2d 601 (Ala. 1994)) (emphasis in
original). Wantonness is not simply a more severe version of negligence, but
is an entirely different tort concept. Id. While negligence is characterized as
“the inadvertent omission of duty,” wanton misconduct is characterized by
the state of mind of consciously taking an action with knowledge that “the
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doing or not doing of [the act] will likely result in injury . . . .” Id. (quoting
Tolbert v. Tolbert, 903 So. 2d 103, 114–15 (Ala. 2004)). “Wantonness is a
question of fact for the jury, unless there is a total lack of evidence from which
the jury could reasonably infer wantonness.” Cash v. Caldwell, 603 So. 2d
1001, 1003 (Ala. 1992).
The question of wantonness often arises in cases like this one. See,
e.g., Essary, 992 So. 2d at 6–9; Scott v. Villegas, 723 So. 2d 642, 642–43
(Ala. 1998). In Alabama, drivers are presumed to not engage in selfdestructive behavior. Essary, 992 So. 2d at 12. Implicit in this presumption
is the requirement that the defendant’s behavior creates a “risk of injury to
[himself] . . . as real as any risk of injury to the plaintiffs.” Id. Thus, this Court
has previously held that the Essary presumption against self-destructive
behavior did not apply to a case where a truck driver’s attempt to “beat the
traffic” caused another vehicle to collide with the trailer of his 18-wheeler.
See McCutchen v. Valley Home, Inc., 100 F. Supp. 3d 1235, 1240 (N.D. Ala.
2015). However, there is no per se rule that the driver of a commercial
vehicle can never enjoy the Essary presumption. See Craft v. Triumph
Logistics, Inc., 107 F. Supp. 3d 1218, 1222 (M.D. Ala. 2015).
Based on the facts of this case, the Court finds that the Essary
presumption applies. Although Markovitch was driving a commercial tractorPage 8 of 15
trailer, he could not be sure that a collision with Plaintiffs’ vehicle would not
injure him as well as Plaintiffs. As a result of the collision, Plaintiffs’ vehicle
struck the driver’s cab portion of Markovitch’s truck. This distinguishes this
case from McCutchen and other cases involving tractor-trailers where the
Essary presumption did not apply. In those cases, the defendants’ actions
caused smaller passenger vehicles to collide into the trailer portion of
commercial vehicles. See McCutchen, 100 F. Supp. 3d at 1237; Griffin v.
Modular Transp. Co., No. 2:12-CV-2378-WMA, 2014 WL 896627, at *4 (N.D.
Ala. March 6, 2014) (noting that “[a] collision between a car and the flatbed
portion of a tractor trailer does not carry the same risk of injury to the trailer
driver as it does to the car driver.” (emphasis in original)). Thus, unlike here,
there was no real risk of injury to those defendants.
Although the Court concludes that Markovitch is entitled to the Essary
presumption, its analysis of Plaintiffs’ wantonness claim does not end there.
The Essary presumption may be rebutted by “evidence of impaired
judgment, such as from the consumption of alcohol” or conduct that is so
“inherently reckless” that it signals the kind of “depravity consistent with
disregard of instincts of safety and self-preservation.” See Essary, 992 So.
2d at 12. Plaintiffs argue that a reasonable jury could find that Markovitch
was intoxicated at the time of the accident. The Court disagrees. The only
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evidence Plaintiffs have offered to support this contention is: (1) Green’s
testimony that after the wreck Markovitch appeared to be “spaced-out” and
(2) that the day before the accident, which happened to be the day before
Independence Day, Markovitch spent nineteen hours in his sleeper berth. As
a matter of law, this evidence is insufficient to support a finding that
Markovitch was intoxicated at the time of the accident.
However, there is a genuine dispute of material fact as to whether
Markovitch’s conduct was “inherently reckless.” Markovitch admits that he
was using a hands-free headset device to talk on his phone at the time of
the accident. Moreover, the dash camera video shows that several vehicles
were on the road when this wreck occurred. The dash camera video also
reveals that Markovitch was traveling at approximately 75 miles per hour in
a 70 mile per hour zone. Markovitch knew of these road conditions and that
he was talking on his phone when he opted to change lanes. Despite this,
he did not make sure that he was clear of Plaintiffs’ vehicle before merging
into the right lane. Based on this evidence, the Court concludes that a
reasonable jury could find that Markovitch’s behavior was “inherently
reckless.” See Hornady Truck Line, Inc. v. Meadows, 847 So. 2d 908, 915–
16 (Ala. 2002) (finding a jury question of wantonness where facts included
driver’s inattentiveness, combined with high rate of speed and adverse
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weather conditions). Accordingly, Markovitch and Eagle’s motion for
summary judgment on Plaintiffs’ wantonness claim is due to be denied.
B.
Negligent, Supervision, Retention, and Entrustment
The Alabama Supreme Court has stated the elements of a negligent
supervision or retention claim in this way:
In the master and servant relationship, the master is held
responsible for his servant’s incompetency when notice or
knowledge, either actual or presumed, of such unfitness has
been brought to him. Liability depends upon it being established
by affirmative proof that such incompetency was actually known
by the master or that, had he exercised due and proper diligence,
he would have learned that which would charge him in the law
with such knowledge. It is incumbent on the party charging
negligence to show it by proper evidence.
Voyager Ins. Cos. V. Whitson, 867 So. 2d 1065, 1073 (Ala. 2003) (quoting
Lane v. Cent. Bank of Ala., N.A., 425 So. 2d 1098, 1100 (Ala. 1983))
(emphasis in original). To prove a negligent entrustment claim, Plaintiffs
must also show that Eagle either knew or should have known that Markovitch
was incompetent to drive. See Bruck v. Jim Walter Corp., 470 So. 2d 1141,
1144 (Ala. 1985). Thus, to succeed on either of these claims Plaintiffs must
prove: (1) that Markovitch was incompetent; and (2) that Eagle either knew
or should have known of his incompetency.
In Alabama, “the incompetence of a driver is measured by the driver’s
demonstrated ability (or inability) to properly drive a vehicle,” Halford v.
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Alamo Rent-A-Car, LLC, 921 So. 2d 409, 413–14 (Ala. 2005), and this may
be measured by characteristics such as “general incompetence” or “habitual
negligence.” Edwards v. Valentine, 926 So. 2d 315, 322 (Ala. 2005).
Plaintiffs point to the following evidence as providing support for their
contention that Markovitch was incompetent: (1) the December 2014 jackknife incident; (2) Markovitch’s two pre-employment traffic citations; (3) the
November 2015 speeding violation; (4) Markovitch’s citation for a flat trailer
tire; and (5) Markovitch’s two post-employment weigh station violations. (See
Doc. 34 at 27.) 3 This evidence is insufficient to support a finding that
Markovitch was habitually negligent. As another court has explained, several
traffic violations do not establish habitual negligence if they occur under
“diverse circumstances.” See Craft, 107 F. Supp. 3d at 1225. Instead, the
kind of habitual negligence that amounts to incompetence under Alabama
law includes situations where an employee engaged in the same negligent
practice numerous times. See, e.g., Pritchett v. ICN Med. All., Inc., 938 So.
2d 933, 941 (Ala. 2006) (finding jury question on negligent supervision claim
where there was evidence that employee had engaged in improper safety
3
Although Plaintiffs argue that Eagle should have investigated Markovitch’s
employment and driving history beyond the last three years of his previous employment,
they have presented no evidence of any traffic violations committed by Markovitch during
this time period. Thus, the only record evidence of Markovitch’s driving history comes
from the information revealed by Eagle’s pre-employment assessment of Markovitch and
his post-employment violations.
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technique at least 30 to 40 different times). Markovitch’s traffic violations do
not rise to this level of negligence.
Thus, the Court will turn to the issue of whether there is sufficient
evidence to support a finding of general incompetence. As Eagle notes, at
the time of the accident, Markovitch had graduated from truck driving school,
obtained a CDL, driven a commercial vehicle for about two years, and had
no history of accidents involving personal injuries. Based on its preemployment review of Markovitch, Eagle assigned him 25 points on its
driver’s point system but determined that he was qualified to operate a
commercial motor vehicle.
While the evidence presented by Plaintiffs does show that Markovitch’s
driving record was not completely free of mistakes, this is insufficient to
support a finding of general incompetence. Under Alabama law, Markovitch
was not required to be a perfect driver. See Pryor v. Brown & Root USA, Inc.,
674 So. 2d 45, 52 (Ala. 1995) (“[Defendant]’s prior driving record—two
speeding tickets and a suspended prosecution of a DUI charge over a 10year period—is not sufficient to support a claim of negligent entrustment.”);
Thompson v. Havard, 235 So. 2d 853, 857 (Ala. 1970) (“[P]roof of two
moving violations or accidents within a two year period prior to the accident
. . . is probably insufficient [to present the question of incompetency to a
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jury].” (internal citations and quotations omitted)); see also Askew v. R & L
Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala. 2009) (finding that a
driver’s record of two moving violations and four minor accidents over an
approximately nine-year period did not amount to incompetence). Instead a
finding of incompetency requires a showing of a demonstrated inability to
properly drive a vehicle. See Halford, 921 So. 2d at 413–14. Under this
standard, the Court concludes that Markovitch’s driving history is insufficient
to raise a genuine issue of material fact as to his incompetency.
Finally, Plaintiffs reference Eagle’s failure to assign Markovitch points
for the jack-knife incident as well as his post-employment speeding, flat tire,
and weigh station violations as supporting their contention that Markovitch
was incompetent. Evidence of a company policy may be relevant to the
competency inquiry when the policy relates to a driver’s eligibility to drive.
See Trinidad v. Moore, No. 2:15cv323-WHA, 2016 WL 4267951, at *3 (M.D.
Ala. Aug. 11, 2016). However, Plaintiffs have not shown how Eagle’s failure
to assess points for these violations affected Markovitch’s eligibility. As Eagle
notes, its point system did not require it to assess Markovitch with any points
for the flat tire and weigh station violations because these were nonmoving
violations. Eagle has also presented evidence that due to the circumstances
surrounding the jack-knife incident it was not chargeable. Plaintiffs have
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presented the Court with no evidence to the contrary. Although the speeding
violation was pointable, there is no evidence that had Markovitch been
assessed points for the speeding violation he would have reached 30 points
on Eagle’s driver’s point system. Moreover, the Court has considered the
speeding violation as part of Markovitch’s driving history and determined
that, as a matter of law, he was not an incompetent driver. Therefore, Eagle
is entitled to summary judgment on Plaintiffs’ negligent supervision,
retention, and entrustment claims.
IV.
CONCLUSION
For the reasons stated above, Eagle and Markovitch’s motion for
partial summary judgment (doc. 29) is due to be GRANTED in PART and
DENIED in PART. The motion is due to be denied in regards to Plaintiffs’
wantonness claims and granted in all other respects. An order consistent
with this opinion will be entered contemporaneously herewith.
DONE and ORDERED on April 19, 2019.
_____________________________
L. Scott Coogler
United States District Judge
194800
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