Brackman et al v. Epheson Transport, LLC et al

Filing 26

MEMORANDUM AND ORDER, Defendant J.B. Hunt Transport, Inc.'s Motion (Doc. 13 ) to Dismiss Counts VII, VIII, and XII of Plaintiffs' Complaint is GRANTED. As there are no pending counts against J.B. Hunt Transport, Inc., J. B. Hunt Transport, Inc. is DISMISSED without prejudice. There are no remaining defendants in this matter, this case is DIMISSED with prejudice with regard to Defendants Epheson Transport, LLC and Ephrem Sharew and DISMISSED without prejudice with regard to Defendant J.B. Hunt Transport, Inc. The Clerk ofCourt is DIRECTED to enter judgment accordingly. Signed by Judge J. Phil Gilbert on 10/15/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EUGENE BRACKMAN and
BRENDA BRACKMAN,
Plaintiffs,
Case No. 15-cv-325-JPG-PMF
v.
EPHESON TRANSPORT, LLC, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant J.B. Hunt Transport, Inc.’s Motion
(Doc. 13) to Dismiss Counts VII, VIII, and XII of Plaintiffs’ Complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). Plaintiffs filed a timely response (Doc. 19). However, Defendant’s
motion presented matters outside of the pleading and the Court was required to treat the motion
as a Motion for Summary Judgment (Doc. 22).

The parties were notified and given an

opportunity to supplement both the motion and the response. No supplemental briefings have
been filed and the time period has elapsed.
I. Background.
This matter arises from a motor vehicle accident. According to the Complaint, Defendant
Sharew was employed by Epheson Transport and was operating a Freightliner Columbia 120
tractor hauling a J.B. Hunt trailer on eastbound Interstate 270 in Madison County, Illinois.
Plaintiff Eugene Brackman was driving a 1991 Plymouth Acclaim traveling in the same lane
behind the tractor-trailer. Defendant Sharew stopped – or unexpectedly slowed – his tractortrailer to a slow rate of speed and the Plaintiff collided with the rear of the trailer causing
damages to the Plaintiffs’ vehicle and severe injury to Plaintiff Eugene Brackman.

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The Complaint alleges that Defendant Sharew was, at all relevant times alleged in the
complaint, an agent of J.B. Hunt. In its motion, J.B. Hunt attached the Outsource Carriage
Agreement between J.B. Hunt and Defendant Epheson Transport, LLC alleging that no such
relationship exists.
II. Analysis.
Summary judgment must be granted “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The nonmoving party may not simply rest upon the allegations contained in the
pleadings, but must present specific facts to show that a genuine issue of material fact exists.
Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57; Modrowski, 712 F.3d at 1168. A
genuine issue of material fact is not demonstrated by the mere existence of “some alleged factual
dispute between the parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to
the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a verdict
for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252.
“When an action is brought against a master based on allegedly negligent acts of the
servant and no independent wrong is charged on behalf of the master, liability is entirely
derivative, being founded upon the doctrine of respondeat superior.” Moy v. County of Cook,159

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Ill.2d 519, 524, 203 Ill.Dec. 776, 640 N.E.2d 926 (1994). Although the terms “principal” and
“agent,” “master” and “servant,” “employer” and “employee” may have separate connotations
for purposes of contract authority, such distinctions are immaterial for tort purposes. In order for
a plaintiff to invoke the doctrine of respondeat superior, it is sufficient that one of the above
relationships be established and that the wrongdoer be either the employee, the agent, or the
servant. (1 J. Lee & B. Lindahl, Modern Tort Law § 7.02 (rev. ed. 1988)” Id. at 523. “Absent an
employment relationship, the doctrine does not apply.” Id. “Critical to the determination of a
master-servant relationship is the existence of the right to control, which includes the power of
discharge.” Id.
The terms of the Outsource Carriage Agreement (OCA) between J.B. Hunt and Epheson
Transport states: “CARRIER shall perform any and all services hereunder as an independent
contractor.” (Doc. 13-1, section 2.1). It further states: “No provisions of this OCA or any act or
omission of either party shall be construed for any purposes to express or imply a joint, venture,
partnership, principal/agent, fiduciary, parent/subsidiary, employer/employee relationship or
other such relationship implying a lack of independent operation by CARRIER. Carrier shall
provide sole supervision and liability for and shall have exclusive control over the operations of
its personnel, contractors, subcontractors and other agents, as well as any and all other vehicles,
equipment and property, whether tangible or intangible, under the control of CARRIER.” Id.
As such, it appears that neither Epheson Transport, nor its employee Sharew, were
agents, employees, and/or representatives of J.B. Hunt.

Although given the opportunity,

Plaintiffs did not file a supplemental response to the now motion for summary judgment. Local
Rule 7.1(g) provides that in the Court’s discretion, failure to file a timely response can be
considered an admission of the merits of the motion. Although Plaintiffs did respond to the Rule

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12(b) motion, there is no supplemental response to the motion for summary judgment which the
Court will construe as an admission on the merits with regard to the relationship between the
defendants.
Based on the above, Defendant J.B. Hunt Transport, Inc.’s Motion (Doc. 13) to Dismiss
Counts VII, VIII, and XII of Plaintiffs’ Complaint is GRANTED.

As there are no pending

counts against J.B. Hunt Transport, Inc., J. B. Hunt Transport, Inc. is DISMISSED without
prejudice. Finally, as there are no remaining defendants in this matter, this case is DIMISSED
with prejudice with regard to Defendants Epheson Transport, LLC and Ephrem Sharew and
DISMISSED without prejudice with regard to Defendant J.B. Hunt Transport, Inc. The Clerk of
Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: 10/15/2015
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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