Wiedeman v. Canal Insurance Company et al

Filing 226

ORDER denying 181 Motion for Summary Judgment. Signed by Judge William S. Duffey, Jr on 5/25/2017. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GREGORY WIEDEMAN,
Plaintiff,
v.

1:15-cv-4182-WSD

CANAL INSURANCE COMPANY,
H&F TRANSFER, INC., AUTOOWNERS INSURANCE
COMPANY, WALTER PATRICK
DORN, IV, WESCO INSURANCE
COMPANY, and SALEM LEASING
CORPORATION, d/b/a Salem
Nationalease,
Defendants.

OPINION AND ORDER
This matter is before the Court on Defendant Canal Insurance Company’s
(“Canal”) Motion for Summary Judgment [181].
I.

BACKGROUND
A.

Facts

This action arises from an August 8, 2014, collision (the “Collision”)
between Plaintiff Gregory Wiedeman (“Plaintiff”) and Defendant Walter Patrick
Dorn, IV, an employee of Defendant H&F Transfer, Inc. (“H&F”). (Canal’s

Statement of Material Facts [181.5] (“CSMF”) ¶ 1).1 Plaintiff asserts, pursuant to
O.C.G.A. § 40-1-112, a direct action claim against Canal as insurer of H&F.
(CSMF ¶ 2).
H&F is a federally-registered motor carrier authorized to transport goods in
interstate commerce under United States Department of Transportation registration
number 1369286 and Motor Carrier number 845988. (CSMF ¶ 3). H&F is a
foreign corporation with its principal place of business in South Carolina. (CSMF
¶ 4). On the date of the accident, H&F was a registered motor carrier in South
Carolina, and South Carolina had issued H&F a “Certificate of Public Convenience
and Necessity for the Operation of Motor Vehicle Carriers.” (CSMF ¶5).
In 2014, H&F did not have any insurance filings with the State of Georgia,
and it did not maintain a permit or certificate to operate in intrastate commerce
within Georgia. (CSMF ¶ 6). H&F does not and has never operated in intrastate
commerce in Georgia, nor has it transported goods intrastate in Georgia. (CSMF
¶ 7). Instead, H&F operates trucks on roads in Georgia in interstate commerce
pursuant to the authority granted by the United States Department of
Transportation, Federal Motor Carrier Safety Administration. (CSMF ¶ 8).

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Plaintiff does not dispute any of facts set forth in the CSMF. (See [202.1]).

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B.

Procedural History

On September 30, 2016, Canal filed its Motion for Summary Judgment.
Canal argues that it is not subject to a direct action claim under O.C.G.A.
§ 40-1-112, because H&F is not, as was not at the time of the Collision, registered
to transport goods in intrastate commerce in Georgia. Canal contends that
Plaintiff’s Georgia law direct action claim against Canal as alleged insurer of a
purely interstate carrier domiciled in South Carolina violates Georgia law and the
Georgia Constitution.
Plaintiff appears to concede that it cannot maintain a direct action against
Canal under Section 40-1-112, and relies instead on a related statute, O.C.G.A.
§ 40-2-140. He argues that, because the Complaint put Canal on notice that
Plaintiff sought to assert a direct action against it as H&F’s insurer, Plaintiff “could
not possibly have been prejudiced by Plaintiff’s” erroneous citation to Section
40-1-112 in its Complaint.
In its reply brief, Canal does not contest that Plaintiff can maintain a direct
action against it under Section 40-2-140. Canal argues that, because Plaintiff pled
its direct cause of action under Section 40-1-112, he cannot now proceed under a
different statute.

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II.

DISCUSSION
A.

Legal Standard

Summary judgment is appropriate where the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56. The party seeking summary judgment bears the
burden of demonstrating the absence of a genuine dispute as to any material fact.
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the
moving party has met this burden, the nonmoving party must demonstrate that
summary judgment is inappropriate by designating specific facts showing a
genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282
(11th Cir. 1999). The nonmoving party “need not present evidence in a form
necessary for admission at trial; however, he may not merely rest on his
pleadings.” Id.
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Where the record tells two
different stories, one blatantly contradicted by the evidence, the Court is not
required to adopt that version of the facts when ruling on summary judgment. Id.

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“[C]redibility determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. The party
opposing summary judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.’” Scott, 550 U.S. at 380 (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A party is entitled
to summary judgment if “the facts and inferences point overwhelmingly in favor of
the moving party, such that reasonable people could not arrive at a contrary
verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002) (quotations omitted).
B.

Analysis

The parties do not appear to dispute that Plaintiff cannot maintain a direct
cause of action against Canal under Section 40-1-112, and that he can maintain a
direct cause of action under Section 40-2-140. The Court has consistently found
that the joinder provisions of Section 40-2-140 “apply to both intrastate and
interstate motor carriers.” McGill v. Am. Trucking and Transp. Ins. Co., 77 F.

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Supp. 3d 1261, 1265 n.1 (N.D. Ga. 2015) (citing Bramlett v. Bajric, No. 1:12-cv2148-TWT, 2012 WL 4951213, at *2 (N.D. Ga. Oct. 17, 2012)); see also Scarff
Bros., Inc. v. Bullseye Dispatch, Inc., No. 2:14-cv-00128-WCO, 2016 WL
3128554, at *3 (N.D. Ga. Jan. 19, 2016) (“Courts have recognized [Section
40-2-140], and others like it, to apply to both intrastate and interstate motor
carriers.” (citing cases)); Cameron v. Teeberry Logistics, No. 3:12-cv-181-TCB,
2013 U.S. Dist. LEXIS 186035, at *10 (N.D. Ga. May 21, 2013) (holding that
Section 40-2-140 authorizes a direct action “not only . . . against insurers of
carriers registered in Georgia, but also the insurers of those carriers . . . that are
traveling through Georgia but whose base state is a state other than Georgia”).
Thus, the only question for the Court to resolve is whether Plaintiff’s
erroneous reference to Section 40-1-112 in his Amended Complaint is fatal to his
claim. The Court finds it is not. “Plaintiffs in federal court are not required to
plead legal theories.” McQueen v. City of Chicago, 803 F. Supp. 2d 892, 900
(N.D. Ill. 2011) (citing McDonald v. Household Int’l, Inc., 425 F.3d 424, 428 (7th
Cir. 2005)). “Several circuits have indicated that failure to plead the correct legal
theory is not necessarily fatal to a plaintiff’s claim when the defendant has
sufficient and fair notice of the correct theory.” King v. Butts Cty. Ga., 576 F.
App’x 923, 931 (11th Cir. 2014); see Doss v. S. Cent. Bell Tel. Co., 834 F.2d 421,

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424 (5th Cir. 1987) (“[T]he fact that a plaintiff pleads an improper legal theory
does not preclude recovery under the proper legal theory.”) (citing Oglala Sioux
Tribe of Indians v. Andrus, 603 F.2d 707, 714 (8th Cir. 1979) (“The function of an
affirmative federal pleading, under Fed. R. Civ. P. 8(a)(2), is to give the opposing
party fair notice of the nature and basis or grounds for a claim, and a general
indication of the type of litigation involved.”)). For instance, in Hatmaker
v. Mem’l Med. Ctr., 619 F.3d 741 (7th Cir. 2010), the Seventh Circuit found that
“[e]ven citing the wrong statute needn’t be a fatal mistake, provided the error is
corrected in response to the defendant’s motion for summary judgment and the
defendant is not harmed by the delay in correction.” Id. at 743.
Here, Plaintiff alleged in his Amended Complaint [33] that, because Canal
insured H&F at the time of the Collision, Canal “is subject to a direct action as the
insurer for [H&F] pursuant to Georgia law.” (Am. Compl. ¶ 78). Canal cannot
plausibly argue that it was not provided fair notice that Plaintiff sought to hold it
liable under a direct action theory of liability. Further, Plaintiff correctly identified
and provided legal support for his claim under Section 40-2-140 in his response to
Canal’s Summary Judgment Motion, and Canal does not dispute—because it
cannot—that Plaintiff’s claim is legally sound. Under these circumstances,
Plaintiff’s reliance in his Amended Complaint upon a closely related, but

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ultimately incorrect, statute is not fatal to Plaintiff’s claim. See Ryan v. Illinois
Dep’t of Children and Family Servs., 185 F.3d 751, 756 (7th Cir. 1999) (“It is of
no moment therefore that [the plaintiffs’] complaint identified the wrong statute as
the basis for their claim, as long as their allegations gave notice of a legally
sufficient claim and they brought the legal support for their claim to the district
court’s attention in their response to the defendants’ summary judgment motion.”
(citations omitted)). Canal’s Motion for Summary Judgment is denied.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Canal Insurance Company’s

Motion for Summary Judgment [181] is DENIED.

SO ORDERED this 25th day of May, 2017.

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