Wiedeman v. Canal Insurance Company et al

Filing 236

OPINION AND ORDER granting Defendants H&F Transfer, Inc. and Walter Patrick Dorn, IV's Motion for Partial Summary Judgment 180 . Signed by Judge William S. Duffey, Jr on 6/20/17. (ddm)

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 Defendants H&F Transfer, Inc. (“H&F”)
and Walter Patrick Dorn, IV’s (“Dorn”) (together, “Defendants”) Motion for
Partial Summary Judgment [180].
I.

BACKGROUND
A.

Facts

This action arises from an August 8, 2014, collision (the “Collision”)
between Plaintiff Gregory Wiedeman (“Plaintiff”) and Dorn, an employee of H&F.
(See Defs.’ Statement of Undisputed Material Facts [201.1] (“DSUMF”) ¶¶ 1-3;

Pl.’s Resp. [204.1] (“R-DSUMF”) ¶¶ 1-3). Plaintiff was riding his motorcycle
northbound on Lawrenceville Highway in DeKalb County, Georgia at 9:55 p.m. on
the day of the Collision. (DSUMF ¶ 1; R-DSUMF ¶ 1). Dorn was driving his box
truck southbound on Lawrenceville Highway. (DSUMF ¶ 2, R-DSUMF ¶ 1).
Dorn was making a left turn onto Montreal East Road when Plaintiff struck the
truck. (DSUMF ¶ 3; R-DSUMF ¶ 3).
Dorn and both his passengers, Matthew Smarr and Tommy Frye, testified
that, at the time of the Collision, Dorn had a green arrow. (DSUMF ¶ 4;
R-DSUMF ¶ 4). Plaintiff testified that he had a green light. (DSUMF ¶ 5;
R-DSUMF ¶ 5).1
A police officer quickly arrived on the scene of the Collision. (DSUMF ¶ 9;
R-DSUMF ¶ 9). The police report narrative states: “Driver 1 [Plaintiff] failed to
yield for a red light and struck vehicle #2. Driver #1 stated to me that he did not
know what he was thinking when he ran the light.”2 ([169.1] at 2).
1

It was raining at the time of the Collision. (DSUMF ¶ 6; R-DSUMF ¶ 6).
Despite that it was nighttime and raining, Plaintiff was wearing a tinted shield on
his motorcycle. (DSUMF ¶ 7; R-DSUMF ¶ 7). Georgia’s Motorcycle Operator’s
Manual states: “tinted eye protection should not be worn at night or at any other
time when little light is available.” (DSUMF ¶ 8; R-DSUMF ¶ 8).
2
Plaintiff claims the accident report reflects only a statement that “Driver 1
failed to yield for a red light and struck vehicle #2,” but that this statement could
have referred to either driver. (R-DSUMF ¶ 10). This argument is plainly

2

At the time of the Collision, Dorn was employed by H&F, and was acting
within the course and scope of his employment. (DSUMF ¶ 12; R-DSUMF ¶ 12).
Plaintiff contends that H&F failed to qualify Dorn under the Federal Motor Carrier
Safety Regulations (“FMCSRs”), including because H&F failed to provide an
application that complied with the requirements of the FMCSRs. H&F failed to
include certain information on its FMCSR application, including carrier
information, date of birth, prior address, equipment experience, and prior traffic
violations. (See DSUMF ¶ 19; R-DSUMF ¶ 19). Plaintiff contends that a driver
who is not qualified cannot operate a commercial motor vehicle. (See R-DSUMF
¶ 16).
Plaintiff’s ten-year driving record shows that, on January 28, 2012, he
received a ticket for “Disobeying an official traffic device”—that is, running a red
light, stop sign, or the like. (See [204.135] at 2). His record also shows three
speeding tickets between 2010 and 2014. (Id.). Before he was hired by H&F,
Dorn had been arrested for public drunkenness, possession of marijuana, and
possession or consumption of alcohol on public property.
contradicted by the report itself, which states “Driver #1 was transported to Grady
by medic 53 and his motorcycle was towed . . . .” ([169.1] at 2). The report also
contains a diagram clearly labeling “Unit 1” as Plaintiff’s motorcycle and “Unit 2”
as Dorn’s truck. (See id.). The Court relies on the record evidence.

3

In 2016, H&F obtained a report showing that Dorn did not have any
violations that would have disqualified him from driving the truck. (DSUMF ¶17).
Plaintiff’s expert, Whitney Morgan, agrees that nothing in Dorn’s file, including
his driving record, disqualified him from driving the truck. (DSUMF ¶ 18).3
B.

Procedural History

On February 26, 2016, Plaintiff filed his Amended Complaint [33]. In it,
Plaintiff asserts the following claims against H&F: (1) respondeat superior
liability for Dorn’s allegedly negligent actions; (2) negligent hiring, retention,
entrustment and supervision of Dorn; (3) failure to comply with federal and state
motor carrier safety regulations and trucking industry standards of care; and
(4) punitive damages pursuant to O.C.G.A. § 51-12-5.1. Plaintiff asserts the
following claims against Dorn: (1) negligence; (2) reckless driving; and
(3) punitive damages pursuant to O.C.G.A. § 51-12-5.1.
On September 30, 2016, Defendants filed their Motion for Partial Summary
Judgment. Defendants seek summary judgment on Plaintiff’s claims for punitive
damages and on Plaintiff’s claims for negligent hiring, retention, entrustment and
supervision against H&F. Defendants argue that, because there is no evidence that

3

The Court sets forth additional facts in its discussion of the evidence
presented in the Motion for Partial Summary Judgment.

4

Dorn acted with malice or evil motive or that he exhibited a pattern or policy of
dangerous driving, Plaintiff cannot recover punitive damages from him. H&F
argues that Plaintiff’s negligent hiring, training, supervision, retention, and
entrustment claims should be dismissed because H&F admits it may be liable for
Dorn’s actions under a respondeat superior theory of liability. H&F argues it is
not subject to punitive damages for any alleged negligent hiring, training,
entrustment, supervision, or retention because there is no evidence that Dorn had
any driving violations, that he was not qualified to drive the truck, or that he was
incompetent or reckless.
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

5

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.
“[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

6

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
1.

Punitive Damages Claim against Dorn

Defendants argue that Plaintiff failed to present a triable issue of fact
regarding his punitive damages claim against Dorn. “Punitive damages may be
awarded only in such tort actions in which it is proven by clear and convincing
evidence that the defendant’s actions showed willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would raise the
presumption of conscious indifference to the consequences.” O.C.G.A. § 51-125.1(b). “Negligence, even gross negligence, is inadequate to support a punitive
damage award.” Colonial Pipeline Co v. Brown, 365 S.E.2d 827, 830 (Ga. 1988).
In automobile collision cases, punitive damages may not be awarded “where
the driver at fault simply violated a rule of the road.” Carter v. Sells, 494 S.E.2d
279, 281 (Ga. Ct. App. 1997). Punitive damages are only recoverable “where the
collision resulted from a pattern or policy of dangerous driving.” Id. “Examples
of a pattern or policy of dangerous driving include driving history of several DUIs,
excessive speed and striking vehicle twice, driving twenty miles with serious

7

mechanical difficulties, [and] DUI in conjunction with numerous traffic safety
violations.” Corbett v. Celadon Trucking Servs., Inc., No. 1:14-cv-1233-TWT,
2016 WL 492715, at *1 (N.D. Ga. Feb. 8, 2016) (internal quotation marks
omitted); accord Carter, 494 S.E.2d at 281 (citing cases showing pattern or policy
of dangerous driving).
Plaintiff claims the following in support of his punitive damages claim
against Dorn: Dorn did not tell the truth about what he was doing the day of the
Collision, first saying he helped load the truck then denying that; his driver’s log is
inaccurate; there is no indication whether he took a break during the drive to
Atlanta; and there is a “strong possibility that Dorn lied to the police officer about
what happened prior to the accident.” ([204] at 14-15). Plaintiff also claims that,
before the Collision, “Dorn had several motor vehicle violations and arrests for
drug possession.” (Id. at 15). Plaintiff’s ten-year driving record shows that, on
January 28, 2012, he received a ticket for “Disobeying an official traffic device”—
that is, running a red light, stop sign, or the like. (See [204.135] at 2). His record
also shows three speeding tickets between 2010 and 2014. (Id.). As to Dorn’s
drug-related arrests, Plaintiff presents evidence that Dorn was previously arrested
for public drunkenness, possession of marijuana, and possession or consumption of
alcohol on public property.

8

First, evidence that Dorn may have had inconsistent statements regarding the
Collision or his activities on the day of the Collision does not show that he engaged
in willful misconduct or had a “pattern or policy of dangerous driving.” Plaintiff
argues that the inconsistent statements and log entries show Dorn was fatigued at
the time of the Collision. There is, however, no evidence, direct or circumstantial,
that Dorn was, in fact, fatigued, and Plaintiff’s fatigue argument is pure
speculation. Even if the inconsistencies could show that Dorn did not have
adequate rest time at the time of the Collision, Plaintiff does not present any
evidence that Dorn had a pattern or policy of driving without adequate rest, or that
Dorn was so fatigued as to exhibit “that entire want of care which would raise the
presumption of conscious indifference to the consequences.” O.C.G.A. § 51-125.1(b); cf. Coker v. Culter, 431 S.E.2d 443, 444-45 (Ga. Ct. App. 1993) (even
where defendant admitted speeding in poor conditions and consuming alcohol
before driving, no “clear and convincing evidence that defendant’s acts arose to the
level sought to be punished under O.C.G.A. § 51-12-5.1”). Second, that Dorn had
previously been arrested on drug- or alcohol-related charges is not relevant to his
driving habits, because the arrests were not made in connection with his driving
any vehicle, and there is no evidence that Dorn was intoxicated at the time of the
Collision. See Ballard v. Keen Transp., Inc., No. 4:10-cv-54, 2011 WL 203378, at

9

*4 (S.D. Ga. Jan. 19, 2011) (noting that only previous driving incidents that relate
to the cause of the present collision are relevant to the punitive damages issue).
Finally, turning to his driving record, Dorn’s speeding tickets are not
relevant to whether he had a pattern or policy of dangerous driving that caused the
collision at issue here, because there is no evidence to show Dorn was speeding at
the time of the Collision or that speed was a factor in the Collision. See id. Even
if speeding were at issue here, Dorn’s record of three speeding tickets over the last
ten years is unremarkable, and does not constitute a “pattern or policy.” Even if a
jury finds that Dorn caused the Collision by running a red light, Dorn’s single 2012
ticket for disobeying a traffic device does not establish a “pattern or policy” of
doing so. Cf. Corbett, 2016 WL 492715, at *2 (no pattern of dangerous driving
where, in previous ten years, defendant received four citations for speeding or
driving too fast for conditions and was involved in one accident); Carter, 494
S.E.2d at 281 (citing cases showing pattern or policy of dangerous driving).
Here, Plaintiff fails to present clear and convincing evidence that Dorn had a
pattern of dangerous driving that resulted in the Collision. Defendants’ Motion for
Partial Summary Judgment is granted on Plaintiff’s punitive damages claim against
Dorn.

10

2.

Negligence and Punitive Damages Claims against H&F

Defendants move for summary judgment on Plaintiff’s negligent hiring,
training, supervision, retention, and entrustment claims and his claim for punitive
damages against H&F. Under Georgia law, respondeat superior and negligent
hiring, training, supervision, retention, and entrustment are mutually exclusive
theories of liability. See Downer v. Jeffrey Boyer, LP, No. 1:15-cv-3734-TWT,
2017 WL 1093167, at *2 (N.D. Ga. Mar. 23, 2017) (citing Durben v. Am.
Materials, Inc., 503 S.E.2d 618, 619 (Ga. Ct. App. 1998)). “To prevent double
recovery, when an employer admits the applicability of respondeat superior, it is
generally entitled to summary judgment on claims for negligent entrustment,
hiring, and retention.” Id. (internal quotation marks omitted, alteration adopted)
(quoting Durben, 503 S.E.2d at 619). A plaintiff may maintain a negligent hiring
claim in addition to a claim of negligence under a respondeat superior theory if the
plaintiff “has a valid claim for punitive damages against the employer based on its
independent negligence in hiring and retaining the employee or entrusting a vehicle
to such employee.” Durben, 503 S.E.2d at 619. The question for the Court is
whether Plaintiff can maintain his cause of action for punitive damages against
H&F based upon its alleged independent negligent hiring, training, supervision,
retention, and entrustment of Dorn.

11

“At summary judgment, the question is whether [the plaintiff] produced
evidence from which a jury could infer that [the employer]’s actions showed a
conscious indifference to the consequences as alleged in the complaint.” Mastec
N. Am., Inc. v. Wilson, 755 S.E.2d 257, 259 (Ga. Ct. App. 2014). Plaintiff may do
so “by showing that the employer had actual knowledge of numerous and serious
violations on its driver’s record, or, at the very least, when the employer has
flouted a legal duty to check a record showing such violations.” Id. (internal
quotation marks omitted) (citing, among others, Smith v. Tommy Roberts
Trucking Co., 435 S.E.2d 54 (Ga. Ct. App. 1993) (reversing grant of summary
judgment on negligent entrustment and punitive damages where company ignored
regulations requiring license record check, where such a check would have
unearthed numerous violations, including DUI, and where the evidence otherwise
supported an inference that the company had actual knowledge that its driver was
incompetent or had a propensity to drive dangerously)).
Plaintiff presents evidence and argument that H&F failed to follow federal
regulations when it did not investigate Dorn’s qualifications and driving record.
(See [204] at 16-17). Plaintiff argues that, among other violations, H&F failed to
“get even the most basic, essential information about Dorn on his job application,
failed to get a motor vehicle record at the time of hiring or within thirty days of

12

hire, and failed to inquire with prior employers to determine if Dorn had previously
worked for a regulated carrier.” ([204] at 18-19). Plaintiff also argues that,
“[a]lthough H&F had learned that Dorn had been arrested on a drug charge and
Dorn had agreed to submit to a drug test as a condition of employment, H&F never
did any drug or alcohol tests and never pulled Dorn’s criminal record which
contained drug and alcohol convictions.” (Id. at 19).
Plaintiff fails, however, to show that had H&F investigated Dorn’s
qualifications, driving record, and criminal history it would have revealed
“numerous and serious violations” relating to Dorn’s driving or put H&F on notice
that Dorn was incompetent to drive H&F’s trucks. See Wilson, 755 S.E.2d at 259.
Had H&F conducted the required three-year driver safety performance history
investigation, the investigation would have revealed only a speeding ticket for
driving less than 10 miles per hour over the speed limit and a ticket for disobeying
an official traffic device. These infractions, even if known, do not rise to the level
necessary to show that H&F’s actions showed a conscious indifference to the
consequences. Cf. Smith, 435 S.E.2d at 57 (issue of fact on punitive damages
where a company’s compliance with regulations would have revealed numerous
other traffic violations, including a DUI).

13

While an investigation into Dorn’s criminal history would have revealed
several alcohol- and drug-related arrests, there is no evidence that Dorn was
intoxicated during the Collision or that intoxication played a role in it. Plaintiff
fails to show that any of H&F’s allegedly negligent actions or omissions with
respect to Dorn’s prior arrests caused the Collision. Cf. Cooper v. Marten Transp.,
Ltd., No. 1:10-CV-03044-JOF, 2012 WL 12358220, at *4 (N.D. Ga. Feb. 23,
2012) (denying summary judgment on punitive damages where company knew of
driver’s numerous speeding citations because speeding was a cause of the accident
at issue).4 There is no evidence that H&F would not have hired Dorn had it
learned of his drug- and alcohol-related arrests. The evidence is further that a
motor carrier is not required to perform a criminal background check under the
FMCSRs. ([180.7] 52:15-22).
Finally, the parties argue at length whether Dorn was qualified to drive the
truck. Plaintiff points to several technical errors and omissions in H&F’s FMCSR
application to argue that Dorn was not qualified, and thus that H&F was negligent
in hiring, supervising, training, and entrusting him. Defendants note that none of
4

Because there is no evidence that intoxication played a role in the Collision,
Plaintiff’s argument that H&F was negligent in not drug-testing Dorn fails. There
is no causal connection between H&F’s allegedly negligent failure to drug-test
Dorn and Plaintiff’s injuries.

14

the missing FMCSR information disqualified Dorn from driving. In determining
whether H&F is liable for punitive damages for negligent hiring, training, or
supervision the relevant question is not whether Dorn was technically qualified,
but whether H&F knew or had reason to know Dorn was “incompetent or
habitually reckless.” See Smith, 435 S.E.2d at 57. That H&F was negligent, or
even grossly negligent, in failing to comply with FMCSRs or in training or
supervising Dorn is not enough. See Colonial Pipeline, 365 S.E.2d at 830. There
is no evidence in this case that Dorn was incompetent or habitually reckless. To
the contrary, the evidence is that Dorn was never involved in any other accident in
a truck, Dorn’s road test conducted by H&F was acceptable,5 his physical exam
and certification were acceptable, the verification of the medical examiner was
acceptable, and his Class D South Carolina driver’s license was acceptable and
valid. Plaintiff simply does not offer any evidence to show that H&F’s actions
showed a conscious indifference to the consequences.6 Defendants’ Motion for
5

Plaintiff argues that the road test, which was conducted in a parking lot, was
insufficient because the test is required to be conducted in road conditions.
(R-DSUMF ¶ 21). This technical shortcoming, even if negligent or grossly
negligent, does not support that Dorn was incompetent or habitually reckless.
6
Plaintiff also claims H&F was negligent in failing to train Dorn on proper
protocol for completing driver logs. As explained above, Plaintiff offers only
speculation that Dorn was fatigued at the time of the Collision or that fatigue
played a role in the Collision. Plaintiff thus cannot show a causal connection

15

Partial Summary Judgment is granted on Plaintiff’s negligent hiring, training,
supervision, retention, and entrustment claims and his claim for punitive damages
against H&F.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendants H&F Transfer, Inc. and

Walter Patrick Dorn, IV’s Motion for Partial Summary Judgment [180] is
GRANTED.

SO ORDERED this 20th day of June, 2017.

between the Collision and H&F’s alleged failure to train Dorn regarding driver
logs. Even if Plaintiff could establish such a connection, H&F’s alleged failure to
train does not rise to the level of conscious indifference necessary for a claim of
punitive damages.

16