Gable et al v. Luffman et al

Filing 70

ORDER granting 40 Motion for Summary Judgment and denying 43 Motion for Hearing. The Clerk is directed to terminate Tru-Pak as a Party to this action. The case shall proceed to trial in due course. Signed by District Judge J. Randal Hall on 9/25/2024. (amd)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

DOUGLAS GABLE and NIESHA KING,

*
*
*

Plaintiffs,

*
*

CV 423-125

*

V.

★

ALAN LUFFMAN and TRU-PAK

*

MOVING SYSTEMS, INC.,

*
*

Defendants.

*

ORDER

Before the Court are Defendant Tru-Pak Moving Systems, Inc.'s
C'Tru-Pak") motion for summary judgment (Doc. 40) and Tru-Pak's

motion for hearing (Doc. 43).

For the following reasons, Tru-

Pak's motion for summary judgment is GRANTED and Tru-Pak's motion
for hearing is DENIED.

I. BACKGROUND

On April 27, 2021, Alan Luffman was operating a semi-truck
owned

by Tru-Pak on Interstate

(Doc. 40-2, 5 1.)
heard

a

noise

and

95 in Chatham County, Georgia.

When trying to change lanes, Luffman claims he
noticed

a

vehicle

and strike Plaintiffs' vehicle.

cross in

(Id. SI 3.)

front of

his

truck

Plaintiffs assert he

merged into the right lane and struck the back left tire of Simon

Drigger's vehicle, causing Driggers to spin in front of the truck
and strike Plaintiffs' vehicle, which then crossed in front of the

truck and ended up on the right shoulder (the '"Accident").

45-7, SI 3.)

(Doc.

Luffman panicked after seeing the impact and continued

driving until he received a call from a Tru-Pak dispatcher.
40-2, SI 4.)
After

Luffman admits he caused the Accident.
the

Accident,

Luffman

received

a

(Doc.

(Id. SI 6.)

call

from

Wally

Perkins, Tru-Pak's safety director, who had spoken with the police
officer.

(Id. SI 7.)

Luffman claims he asked Mr. Perkins if he

needed to return to the scene of the Accident, but Mr. Perkins

said the police officer explained there was no need.
9.)

(Id. SISI 8,

Plaintiffs dispute this fact, as it is supported only by

Luffman's own testimony.

(Doc. 45-7, SI 9.)

Mr. Perkins instructed

Luffman to come to Tru-Pak's yard for a post-accident drug and
alcohol

test,

which

was

negative.

(Doc.

40-2,

SISI

10-11.)

Plaintiffs assert the Accident occurred around 6:00 A.M., Luffman
took

two

or

two

and

a

half

hours

to

travel

to

headquarters in Conover, North Carolina, and then he
drug and alcohol testing around 1:14 P.M.

Tru-Pak's

underwent

(Doc. 45-7, SI 11.)

The responding police officer confirmed in his report that he
notified

Luffman.

Mr. Perkins about the Accident

(Doc. 40-2, SI 12.)

and

asked

him to contact

Mr. Perkins provided the officer

video footage of the accident and Luffman's contact information.
(Id. SI 13.)

Luffman spoke with the police officer on the phone

and admitted to causing the accident, panicking, and leaving the
scene.

(Id. ^ 14.)

Tru-Pak terminated Luffman after the Accident,

but the Parties dispute when this occurred.

(Id. 1 15; Doc. 45-

7, SI 15.)

At the time of the Accident, Tru-Pak claims Luffman was an

independent

contractor,

but

Plaintiffs

argue

that,

under

the

statutory employment doctrine, Tru-Pak is liable for the injuries
Luffman caused.

(Doc. 40-2, SI 16; Doc. 45-7, SI 16.)

Luffman had

driven commercial vehicles for at least four years.

(Doc. 40-2,

SI 17.)

He earned his commercial driver's license (""CDL") in 2017.

(Id. SI 18.)

The Parties dispute what kind of training Luffman

received on how to operate a commercial vehicle.

(Id. SI 19; Doc.

45-7, SI 19.)

Luffman had no points on his CDL license.

(Doc. 40-2, SI 22.)

He received a speeding citation in North Carolina in 2019 or 2020,
but received no other moving violations aside from the ones issued
from the Accident.

(Id. SI 23.)

Luffman was also involved in a

prior accident in a commercial vehicle when he backed into another
semi-truck in a delivery yard.

(Id. SI 24.)

And in 1996, he was

cited with driving while intoxicated in his personal vehicle, but
he was never arrested again.
Plaintiffs

sued

(Id. SISI 26, 27.)

Defendants

County, Georgia on April 5, 2023.

in

the

State

(Doc. 1-1.)

Court

of

Chatham

Defendants removed

the case on May 5, 2023, pursuant to 28 U.S.C. §§ 1332, 1441, and

1446.

(Doc. 1.)

They assert diversity jurisdiction is satisfied

because the amount in controversy is over $75,000, and the Parties

are completely diverse.

(Id.

8-9, 16-18.)

Plaintiffs bring

five claims: (1) negligence of Luffman based on his failure to

operate his truck in a reasonable and safe manner; (2) negligence
of

TruPak

based

on

their

negligent

hiring,

training,

and

supervising of Luffman; (3) negligence per se of Luffman by moving
from his lane into the lane traveled by Plaintiffs; (4) negligence
per se of Luffman by moving and fleeing the scene after causing

the Accident; and (5) attorneys' fees because Defendants acted in
bad faith, have been stubbornly litigious, and caused Plaintiffs
unnecessary trouble and expense.

(Doc. 1-1, at 3-7.)

Tru-Pak moves for summary judgment on all claims against it.
(Doc. 40.)

Plaintiffs filed a brief in opposition (Doc. 45) and

Tru-Pak replied in support (Doc. 51).

The Court addresses the

Parties' arguments below.

II. LEGAL STANDARD

Summary judgment is appropriate only if '"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).

Facts are

"material" if they could "affect the outcome of the suit under the
governing [substantive] law," Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986), and a dispute is genuine "if the non[-]moving

4

party has produced evidence such that a reasonable factfinder could
return a verdict in its favor."

Waddell v. Valley Forge Dental

Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

The Court

must view factual disputes in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986), and must ^'draw all justifiable inferences
in [the non-moving party's] favor."
of Real Prop., 941

F.2d

United States v. Four Parcels

1428, 1437 (11th Cir.

(citation,

internal

omitted).

The Court should not weigh the evidence or determine

credibility.

quotation

marks,

and

1991) (en banc)

internal

punctuation

Anderson, 477 U.S. at 255.

The moving party has the initial burden of showing the Court,
by reference to materials in the record, the basis for the motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

When the non-

movant bears the burden of proof at trial, the movant has two

options as to how it can carry its initial burden.

Fitzpatrick v.

City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993).

The movant

may show an absence of evidence to support the nonmovant's case or

provide

affirmative

evidence

demonstrating

inability to prove its case at trial.

the

nonmovant's

Id.

If the movant carries its initial burden, the non-movant must
^demonstrate that there is indeed a

precludes summary judgment."
App'x

787, 789 (11th

Cir.

material issue of fact that

Vaughn v. Ret. Sys. Of Ala., 856 F.

2021) (citation

omitted).

The

non-

movant must tailor its response to the method by which the movant
carries its initial burden.

Fitzpatrick, 2 F.3d at 1116-17.

For

example, if the movant presents evidence affirmatively negating a
material

fact,

the

non-movant

^^must

respond

with

evidence

sufficient to withstand a directed verdict motion at trial on the

material fact sought to be negated."

Id. at 1116.

On the other

hand, if the movant shows a lack of evidence on a material fact,
the non-movant must either show that the record contains evidence

that was ^^overlooked or ignored" by the movant or ^^come forward
with

additional

verdict

evidence

motion

deficiency."

at

sufficient

trial

based

on

to

withstand

the

alleged

Id. at 1116-17 (citations omitted).

a

directed

evidentiary

The non-movant

cannot carry its burden by relying on the pleadings or by repeating
conclusory allegations contained in the complaint.
Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).

See Morris v.

Rather, the non-

movant must respond with affidavits or as otherwise provided by
Federal Rule of Civil Procedure 56.

In this action, the Clerk of Court provided Plaintiffs notice
of the motion for summary judgment, the right to file affidavits
or other materials in opposition, and the consequences of default.
(Doc. 41.)
V.

For that reason, the notice requirements of Griffith

Wainwright,

satisfied.

772

The

F.2d

time

822,

for

825

filing

(11th

Cir.

materials

1985),

in

have

opposition

been

has

expired, the issues have been thoroughly briefed, and the motion
is ripe for consideration.

III. DISCUSSION

The Court addresses Tru-Pak's arguments for each claim in
turn.

A. Negligence

First,

Tru-Pak

moves for

summary judgment on

Plaintiffs'

negligent hiring, training, and supervision claim because Luffman
was an independent contractor.

Georgia

law

is

well-settled

(Doc. 40-1, at 8.)

that claims for

It argues

negligent

hiring,

training, supervision, and retention do not apply to independent
contractors.

(Id. (citations omitted).)

In the alternative, Tru-

Pak argues there is no evidence of similar incidents to prove TruPak

knew

or

employment.

should

have

(Id. at 10.)

known

Luffman

was

not

suited

for

Plaintiffs argue there is a genuine

dispute of material fact on the negligence claims.

(Doc. 45, at

10-19.)

1. Independent Contractor

''[C]laims of negligent hiring, . . . training, and supervision
are based on the employer's negligence."

ABM Aviation v. Prince,

884 S.E.2d 8, 13 (Ga. Ct. App. 2023) (citation omitted).

As to

hiring, an ^^employer has a duty to exercise ordinary care not to

hire . . . an employee the employer knew or should have known posed

a risk of harm to others where it is reasonably foreseeable from

the employee's tendencies or propensities that the employee could
cause the type of harm sustained by the plaintiff." Id. (citations
omitted).
must

""To establish a negligent training claim, a plaintiff

demonstrate

that

foreseeable injury."
supervision,

an

inadequate

training

caused

Id. (citation omitted).

employer

can

only

be

liable

a

reasonably

And for negligent
"''where

there

is

sufficient evidence to establish that the employer reasonably knew
or should have

known of an employee's tendencies to engage in

certain behavior relevant to the injuries allegedly incurred by
the plaintiff."

Id. at 14 (citation omitted).

""[T]he general rule in Georgia is that an employer is not
liable

for

the

negligent

acts

of

an

independent

contractor."

Wilson V. Guy, 848 S.E.2d 138, 144 (Ga. Ct. App. 2020) (citations
omitted).

""[WJhether a person is an employee or an independent

contractor is determined by examining whether the employer has
assumed

the

right

to

executing the work."

omitted).

''"[T]he

control the time,

manner, and

method

of

Id. at 142 (citations and quotation marks

right

to

control

the

manner

and

method

of

executing work means the right to tell the employee how he shall
go about doing the job in every detail, including what tools he
shall use and what procedures he shall follow," and ""the right to

control the time of doing the job means the right to control the
hours of work,"

Id. (citations and quotation marks omitted).

8

Tru-Pak

argues

Luffman

signed

an

independent

contractor

agreement (the ""Agreement") that explicitly stated: ""I understand
that I am an Independent Contract Driver."
40-7, at 1.)

(Doc. 40-1, at 9; Doc.

When ""the contract of employment clearly denominates

the other party as an independent contractor, that relationship is
presumed to be true unless the evidence shows that the employer
assumed

the

right

to

executing the work."

control

the

time,

manner

and

method

of

Miller v. Polk, 872 S.E.2d 754, 760 (Ga. Ct.

App. 2022) (citations and internal quotation marks omitted).

Thus,

Tru-Pak has put forth the presumption of an independent contractor
relationship, and the Court must examine the evidence to determine
whether there is a genuine dispute of material fact as to whether

Tru-Pak assumed the right to control the time, manner, and method
of Luffman executing his job.
Plaintiffs

argue

Luffman

was

an

employee

because

Tru-Pak

provided him a truck and carried and paid for his insurance.
45, at 10-11.)
rely on

(Doc.

However, as Tru-Pak points out, the case Plaintiffs

to support this

argument is in

the

hospital-physician

context, and Plaintiffs rely on Tru-Pak providing a truck, when
that

is

not

relationship.

a

dispositive

factor

of

an

employer-employee

(Doc. 51, at 3 (citing Barney v. Peters, No. CV

420-173, 2022 WL 18673310, at *3 (S.D. Ga. Dec. 15, 2022)).)

The

court in Barney explicitly reasoned that an employer providing an
employee equipment suggests an employer-employee relationship, but

''this factor alone would not preclude summary judgment."
18673310, at *3 (citation omitted).

2022 WL

Thus, while providing the

truck weighs towards finding an employer-employee relationship, it
does not decide the issue.

As to insurance, Tru-Pak asserts it

insured the vehicle, not Luffman.

(Doc. 51, at 3.)

Plaintiffs

cite to no case law to illustrate insuring the truck suggests an

employer/employee relationship, so the Court finds this factor is
not dispositive either.

To

dispute

Tru-Pak's

contention

that

Luffman

was

an

independent contractor. Plaintiffs next argue Tru-Pak controlled

Luffman's time and how he performed his work because it required
him

to

attend

quarterly

safety

meetings,

reprimanded

him

for

driving infractions, and required him to adhere to its policies
and

procedures.

(Doc.

45,

at

11.)

Tru-Pak

argues

this

is

insufficient evidence of an employee relationship, especially in
the context of safety topics.

(Doc. 51, at 5.)

Tru-Pak required

its drivers to be safe, on time, and comply with state and federal
driving rules and regulations, but it did not control the way those
expectations were met.

(Id. at 5-6.)

Plaintiffs again rely on

the Barney decision, which stated an employer's right to impose

its

will in

individual's
relationship.

lieu of the
work

step

contract's

by step

indicates

(Doc. 45, at 11-13.)

the facts at issue are different.

10

provisions and direct the
an

employer-employee

Once again, the Court finds

The Agreement stated Luffman

understood "additions or deletions can be made at any time to this
contract policy agreement . . . and I will be provided with a new

copy to review and understand in a timely manner before signing to
determine if I wish to continue with contract or decline."

40-7, at 1.)

Thus, Tru-Pak left control with Luffman, which points

to an independent contractor relationship.
143

(Doc.

("[T]he

very

nature

of

an

Wilson, 848 S.E.2d at

employer-independent

contractor

relationship is that the employer lacks the right to control or
direct the way in which the independent contractor performs his or
her work.").

Since any additions to the contract were given to

Luffman to review and he was given the choice to accept them or

not,

this

weighs

contractor.

towards

finding

him

to

be

an

independent

Plaintiffs rely on Davis v. Beasley Timber Co., 527

S.E.2d 221, 222-23 (Ga. Ct. App. 1999) to
requiring

Luffman

to

adhere

employee.

(Doc. 45, at 11.)

to

company

argue that Tru-Pak

policies

made

him

an

As Tru-Pak points out, this case can

also be differentiated from the facts at issue.

(Doc. 51, at 6.)

In Davis, the court found a genuine dispute of material fact as to
whether

the

driver

company

maintained

was

an

independent

sufficient

control

contractor

because

over

including

him,

company handbook with policies and "Do's and Don'ts."
at

222.

Here,

Tru-Pak

provided

Luffman

a

Driver

the

a

527 S.E.2d
and

Safety

Handbook (the "Handbook"), but the driver responsibilities stated
in the Handbook are very broad and include things like driving in

11

a

safe and efficient manner, loading and unloading in a safe

manner, picking up and delivering on time, loading according to
vehicle

size

and

weight

restrictions,

being

motoring public, and similar instructions.
The

Court

finds

the

Handbook's

driver

courteous

to

the

(Doc. 51-1, at 6.)

responsibilities

to

be

general instructions and not do's and don'ts that show an exercise
of control over a driver.

As a result, the Court finds this factor

supports Luffman being an independent contractor.
To further dispute Tru-Pak's position. Plaintiffs argue TruPak trained Luffman on how to drive commercial vehicles because he

did not have experience before being hired.

They

argue

this

contradicts

his

(Doc. 45, at 12-13.)

Agreement

which

states:

understand that any training or procedural instructions I receive
from [Tru-Pak] will be strictly related to DOT/FMCSA regulatory
requirements[.]"
Pak

does

not

(Doc. 45, at 13 (quoting Doc. 40-7, at 5).)

dispute

it

trained

Luffman

on

how

to

drive

commercial vehicle because he did not have prior experience.
51, at 7.)

Trua

(Doc.

But it argues this is not in contravention with his

Agreement, and it does not evidence control over Luffman's day to
day operations of his

vehicle and deliveries.

(Id.)

Tru-Pak

argues this is merely general supervision to ensure the ends of

the contract shall be substantially met, and it does not destroy
the independence of the relationship.

(Id. (citing Grange Indem.

Ins. V. BeavEx, Inc., 804 S.E.2d 173, 175 (Ga. Ct. App. 2017)).)

12

The Court agrees with Tru-Pak.

The evidence shows two drivers

affiliated with Tru-Pak trained Luffman on how to drive commercial

vehicles

because

he

had

no

experience.

(Doc.

45-1,

11-12.)

However, Plaintiffs cite to no authority, and the Court is unaware

of

any,

that

indicates

providing

initial

training

for

a

job

illustrates an exercise of control over the driver's day to day

operations.
to

As Tru-Pak argues, providing Luffman the general means

complete

his

job

does

relationship with Tru-Pak.
(citation omitted).

not

destroy the

independence

of the

Grange Indem. Ins., 804 S.E.2d at 175

As such, the Court finds initial training

provided by Luffman does not create a genuine dispute over his
status as an independent contractor.
Finally,

Plaintiffs

argue

Tru-Pak

hired

an

attorney

to

represent Luffman in the criminal proceedings that resulted from
the

Accident, suggesting

he

required under the Agreement.

was

an

employee,

(Doc. 45, at 13.)

as

this

was

not

Tru-Pak does not

dispute it facilitated a criminal defense attorney to represent
Luffman after the Accident, but it argues this is unrelated to the

determination of him being an independent contractor.
at 8.)

The Court again agrees with Tru-Pak.

(Doc. 51,

The fact Tru-Pak

helped Luffman with his criminal defense does not create a genuine
dispute

of

material fact

about

Tru-Pak

controlling

manner, and method of Luffman executing his job.

S.E.2d at 760 (citations omitted).

13

the

time,

See Miller, 872

This was a step taken outside

the scope of his job execution, and the evidence shows Tru-Pak
terminated Luffman after the Accident as well.

Doc. 45-7, 1 15.)

(Doc. 40-2, ^ 15;

Thus, Tru-Pak providing Luffman an attorney

after the accident does not help the Court's analysis of whether
Tru-Pak controlled the time, manner, and method of Luffman's job.

Based on the foregoing, the Court finds Tru-Pak put forth
evidence to illustrate Luffman was an independent contractor and

not an employee of Tru-Pak.

Despite Plaintiffs' arguments to the

contrary, the Court is not convinced the factors support finding
an

employer-employee

relationship.

Since

Luffman

was

an

independent contractor, Tru-Pak is not liable for his alleged
negligent acts.

Wilson, 848 S.E.2d at 144 (citations omitted).

Thus, Tru-Pak's motion for summary judgment is GRANTED on Count II

for

Tru-Pak's

negligent

hiring,

training,

and

supervision

of

Luffman.

2. Negligent Entrustment

Plaintiffs

argue

a

negligent

entrustment

require an employer-employee relationship.

claim

does

(Doc. 45, at 13.)

not

Tru-

Pak agrees liability under negligent entrustment may arise outside
of an employer-employee relationship.

(Doc. 51, at 10.)

It admits

Tru-Pak owned the truck driven by Luffman but argues Plaintiffs
have not proven the remaining elements to prove a claim.

(Id.)

Tru-Pak asserts Plaintiffs failed to offer evidence of negligent
entrustment.

(Id.)

Plaintiffs argue that since Tru-Pak owned the

14

truck Luffman drove, summary judgment should be denied.

(Doc. 45,

at 13-14.)

A negligent entrustment claim requires

a negligent act of the owner in lending his vehicle to
another to drive, with actual knowledge that the driver
is incompetent or
habitually reckless, and this
negligence must concur, as a part of the proximate cause,
with the negligent conduct of the driver on account of
his incompetency and recklessness.
CGL Facility Mgmt., LLC v. Wiley, 760 S.E.2d 251, 256 (Ga. Ct.

App. 2014) (citation omitted).

Such a claim requires more than

proving Tru-Pak owning the truck, but also requires Plaintiffs to
show Tru-Pak entrusted Luffman with the truck while knowing he was

incompetent or habitually reckless.

The Court finds Plaintiffs

failed to do so.

Tru-Pak argues Luffman's driving history does not demonstrate
a ^^pattern of reckless driving or facts from which such knowledge
could be inferred."

(Doc. 51, at 11 (quoting Danforth v. Bulman,

623 S.E.2d 732, 736 (Ga. Ct. App. 2005)).)

Danforth provides that

^Mt]o avoid summary judgment, a plaintiff who asserts a known habit

of recklessness as the basis for liability must show that the owner
had actual knowledge of the driver's pattern of reckless driving

or facts from which such knowledge could reasonably be inferred."
623 S.E.2d

at

736

(citation

omitted).

To

show

a

history

of

careless or reckless driving and raise an issue of fact for the
jury. Plaintiffs rely on evidence that Luffman backed into another

15

vehicle and received speeding tickets.

(Doc. 45, at 17-18.)

In

response, Tru-Pak argues Luffman was cited for speeding two years
before the Accident and was involved in a backing accident the

year before the Accident.
evidence

also

shows in

(Doc. 51, at 11.)

1996,

he

was cited

intoxicated in his personal vehicle.

The undisputed

with

driving

(Doc. 40-2, SI 26.)

while

But Tru-

Pak argues two prior tickets and a backing accident are not enough
to establish Luffman was habitually incompetent or had a habit of
recklessness.

In

(Doc. 51, at 11.)

Danforth,

the

court

The Court agrees.

found

the

plaintiff s

negligent

entrustment claim against a mother failed even though the mother
let

her

son

use

her

car

with

knowledge

of

his

three

collisions and a ticket for passing in an illegal zone.

732 at 737.

prior

623 S.E.2d

Reasoning that two of the collisions were minor and

the son was not cited for traffic violations, the court found the

facts were not sufficient to establish the son's incompetence.
Id.

On the other hand, in Smith v. Tommy Roberts Trucking Co.,

435 S.E.2d 54, 57 (Ga. Ct. App. 1993), the court found a genuine
dispute of material fact as to negligent entrustment when the truck
driver had two traffic violations during his employment and several

other violations on his record, including a ticket for driving
under the influence.

The Court finds Luffman's two tickets and a

backing accident are not enough to create a genuine dispute of
material fact as to negligent entrustment.

16

This is more similar

to

the

facts

of

Danforth,

because

the

prior

incidents

were

relatively minor violations, did not occur during his employment,

and

do

not

establish

recklessness.

Luffman's

incompetence

of

habitual

Further, these prior actions are required to concur

as part of the proximate cause, and here, there is no evidence the
Accident was caused by poor backing or speeding.
Mgmt., 760 S.E.2d at 256 (citation omitted).

See CGL Facility

Thus, there are no

prior incidents that put Tru-Pak on notice that negligent conduct
was foreseeable based on Luffman's history.

Based on the above,

the Court finds Plaintiffs failed to put forth evidence of Tru-

Pak's negligent entrustment to Luffman, so Tru-Pak's motion for
summary judgment is GRANTED on this claim.
3. Statutory Employment Doctrine

In

response

Plaintiffs

to

assert

Tru-Pak's

Luffman

employment" doctrine.

is

motion

an

for

employee

(Doc. 45, at 14.)

summary

under

the

judgment.
^^statutory

They argue that even if

Luffman was an independent contractor under the Agreement, under
federal

law

for

interstate

motor

carriers,

the

carriers

are

responsible for the acts of drivers operating trucks under their
names, so the drivers are employees of the carrier.

(Id. at 16.)

Plaintiffs assert that as employees under this doctrine, carriers,
like

Tru-Pak,

are

responsible

for

the

acts

of

their

operating trucks under the name of the common carrier.

17

drivers

(Id.)

In response, Tru-Pak argues that Plaintiffs cannot assert
this new theory of recovery for the first time in response to the
motion for summary judgment.

{Doc. 51, at 8.)

Tru-Pak is correct.

Since this theory of relief was not raised in the Complaint,
Plaintiffs are barred from seeking such relief at this stage of
litigation.

Gilmour v. Gates, McDonald and Co., 382 F.3d 1312,

1314 (11th Cir. 2004) (holding that a plaintiff may not raise a

new legal claim for the first time in response to a motion for
summary

judgment).

As

such.

Plaintiffs'

attempt

to

assert

liability under the ""statutory employment" doctrine is DENIED.
B. Attorneys' Fees

Tru-Pak

also

moves

for

summary

judgment

on

Plaintiffs'

attorneys' fees claim, arguing there is no evidence of bad faith
or stubborn litigiousness.

(Doc. 40-1, at 13-16.)

Plaintiffs

argue there is an issue of fact on whether Tru-Pak acted in bad
faith and engaged in stubborn litigiousness.
O.C.G.A. §

13-6-11

provides

a

(Doc. 45, at 19-23.)

plaintiff

can

recover

the

expenses of litigation ""where the defendant has acted in bad faith,
has

been

stubbornly

litigious,

or

unnecessary trouble and expense."

has

caused

the

However, a claim under this

statute is derivative of a substantive cause of action.

V. Am.

Since

Nat'l

summary

Red

Cross,

judgment

385 F.3d

is

plaintiff

1318,

granted

on

1324

Gilmour

(11th

Cir. 2004).

Plaintiffs'

substantive

claims against Tru-Pak, their request for attorneys' fees cannot

18

proceed.

Tru-Pak's motion for summary judgment is thus GRANTED as

to Count V for attorneys' fees.

IV, CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that Tru-Pak's

motion for summary judgment (Doc. 40) is GRANTED.

The Clerk is

DIRECTED to TERMINATE Tru-Pak as a Party to this action.

Because

the Court resolved the motion for summary judgment based on the
Parties' briefs, Tru-Pak's motion for hearing (Doc. 43) is DENIED.
The case shall proceed to trial in due course.

ORDER

ENTERED

at

Augusta,

Georgiaj__^ this

day

September, 2024.

HONORABL^J. f^NI^L HALL
UNITED STATES
)UTHERN

19

DISTRICT

JUDGE

DISTRICT OF GEORGIA

of