Conway v. Adrian Carriers, LLC. et al
ORDER GRANTING 109 MOTION for Summary Judgment on Counts I and IV of Plaintiff's Complaint Relative to Any Claims of Negligent Hiring, Training, Supervision, Retention and Entrustment and Statement of Undisputed Material Facts, GRANTI NG 107 MOTION for Summary Judgment on punitive damages and Statement of Undisputed Material Facts and DENYING 110 Joint MOTION for Summary Judgment on Counts IV, V and VI of Plaintiff's Complaint Related to Claims Under the Surv ival Act filed by Adrian Carriers, LLC. and Gregory Lee Horne. The Court DIRECTS the Clerk of the Court to enter judgment in favor of defendants and against plaintiff as to the punitive damages claims and the negligent hiring, training, supervi sion, retention & entrustment claims contained in Counts I and IV of the Fourth Amended Complaint at the close of the case. See Order for details. ( Final Pretrial Conference set for 12/14/2017 11:00 AM in East St. Louis Courthouse before Judge David R. Herndon.)Signed by Judge David R. Herndon on 11/9/2017. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TAMMY CONWAY, individually,
and as Personal Representative
of the Estate of David Conway,
ADRIAN CARRIERS, LLC,
and GREGORY LEE HORNE,
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
Pending before the Court are several motions for summary judgment filed by
defendants Adrian Carriers, LLC and Gregory Horne: motion for summary
judgment on punitive damages (Docs. 107 & 113); motion for summary judgment
on Counts I and IV relative to any claims of negligent hiring, training, supervision,
retention & entrustment (Docs. 109 & 108); and motion for summary judgment on
Counts IV, V and VI related to claims under the survival act (Docs. 110 & 111).
Plaintiff opposes the motions (Docs. 116; 114; and 115, respectively). Based on
the record and the applicable law, the Court grants both the motion for summary
judgment on punitive damages and the motion for summary judgment on Counts I
and IV relative to any claims of negligent hiring, training, supervision, retention &
Page 1 of 12
entrustment and denies the motion for summary judgment as to Counts IV, V, and
VI related to claims under the survival act.
On August 9, 2016, Tammy Conway, individually, and as personal
representative of the Estate of David Conway, deceased, filed a fourth amended
complaint against Adrian Carriers, LLC and Gregory Lee Horne (Doc. 72). 1 This
case stems from a tractor trailer on tractor trailer collusion between plaintiff’s
decedent David Conway and defendant Horne, an employee of Adrian Carriers, LLC
(“Adrian Carriers”) on August 24, 2015.
David Conway died as a result of the
accident and his estate brings wrongful death claims (Count I against Adrian
Carriers, Count II against Horne & Count III– against Adrian Carriers for vicarious
liability) and survival act claims (Count IV against Adrian Carriers, Count V against
Horne & Count VI-vicarious liability against Adrian Carriers) under Illinois law.
Plaintiff seeks both compensatory and punitive damages.
“The court shall grant summary judgment 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). Whether a fact is material depends on the
underlying substantive law that governs the dispute. Carroll v. Lynch, 698 F.3d
561, 564 (7th Cir. 2012) (citation omitted). “A factual dispute is ‘genuine’ only if a
1 Originally, Conway filed her complaint in this Court based on diversity jurisdiction on October 14,
2015 (Doc. 1). Since the allegations regarding Adrian Carriers as a limited liability corporation
were insufficient, the Court directed plaintiff to file an amended complaint (Doc. 7). Plaintiff filed
the amended complaint on November 3, 2015 (Doc. 8).
Page 2 of 12
reasonable jury could find for either party.” Nichols v. Mich. City Plant Planning
Dep't, 755 F.3d 594, 599 (7th Cir. 2014) (internal quotation marks and citation
omitted). Because the plaintiff bears the ultimate burden of persuasion, the
defendant's summary judgment burden “may be discharged by ‘showing’—that
is, pointing out to the district court—that there is an absence of evidence to support
the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986); see also Andrews v. CBOCS W., Inc., 743 F.3d 230,
234 (7th Cir. 2014). “Upon such a showing, the nonmovant must then ‘make a
showing sufficient to establish the existence of an element essential to that party's
2013) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548). The nonmovant must
“go beyond the pleadings ... to demonstrate that there is evidence upon which a jury
could properly proceed to find a verdict in her favor.” Id. at 1168–69 (internal
quotation marks and citation omitted). Summary judgment is appropriate where
“no reasonable jury could rule in favor of the nonmoving party.” See Bagwe v.
Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation
The accident in this case occurred during the evening of August 24, 2015 on
I-55 in Grundy County, Illinois. On the date of the accident, Horne was driving
Adrian Carrier’s tractor trailer southbound on I-55 and David Conway was driving
2 These undisputed facts are taken from the parties’ briefs.
Page 3 of 12
former third party defendant 5 Star Logistics, LLC’s tractor trailer in the same
direction on I-55 behind Horne. 3
David Conway was returning from Chicago,
Illinois and Horne was returning from picking up a load at a railroad yard near
Wilmington, Illinois. Shortly after 8:00 p.m., the front left of the tractor trailer
driven by David Conway collided with the right rear of the tractor trailer driven by
Horne. As a result of the accident, Conway sustained fatal injuries.
On August 26, 2015, Amanda Youmans, D.O., performed an autopsy on
David Conway. Dr. Youmans determined that David Conway’s cause of death was
multiple blunt force injuries.
Dr. Youmans also determined that at the time
between the blunt force trauma and death of David Conway could have been
“seconds,” which included the possibility of “instantaneous or immediate death.”
Dr. Youmans could not determine whether David Conway was conscious or
whether he experienced any pain or suffering from the moment of injury until
death. No witness has testified that David Conway was conscious at any time from
the moment of injury until death.
At the time of the accident, Tammy Conway, David Conway, and the four
3 On April 26, 2016, defendants filed a third party complaint against 5 Star Logistics, LLC for
contribution (Count I); negligence/property damage (Count II); and negligent entrustment (Count III)
(Doc. 55). Thereafter, the Court granted a joint motion of Adrian Carriers, Horne and 5 Star
Logistics, LLC for good faith finding and to dismiss claims against one another (Doc. 106). The
Court dismissed with prejudice Count I of the third party complaint and without costs under Rule
54(b), with an express finding that the dismissal of Count I is a final order under Rule 54(b);
dismissed without prejudice Counts II and II of the third party complaint and without costs under
Rule 41; and found that the dismissal of Count I has been made in good faith under the Illinois Joint
Tortfeasors Contribution Act. Id.
Page 4 of 12
minor Conway children were Missouri residents. 4 5 Star Logistics, LLC, was a
Missouri limited liability corporation, that was formed in Missouri and that had its
principal place of business in Missouri. Conway started the trip that ended in his
death in Missouri and was headed to his home in Missouri.
First, defendants maintain that they are entitled to summary judgment
regarding plaintiff’s claims for punitive damages as Illinois law does not allow
punitive damages under either the Illinois Wrongful Death Act and under the Illinois
Survival Act and that Illinois law applies in this case.
In response, plaintiff
counters that Missouri law applies as the location of the crash in Illinois was merely
fortuitous. Plaintiff also states: “The parties have acknowledged that if Missouri
law applies, which it should, Plaintiff will be allowed to submit on punitive
damages. If Defendants are correct, which they are not, and Illinois law applies,
Plaintiffs will not be allowed to submit on punitive damages.” (Doc. 116, p. 1).
Plaintiff argues that Missouri law should apply as it has a more significant
relationship than Illinois to this case. Based on the following, the Court agrees
Illinois law plainly holds that punitive damages may not be recovered in
wrongful death or survival actions. This principle was established in a line of
cases stemming from Mattyasovsky v. West Towns Bus Co., 330 N.E.2d 509, 512
4 Currently, Tammy Conway and her minor children are residents of Texas.
Page 5 of 12
(Ill. 1975). The Illinois Supreme Court explained that seminal decision in Froud v.
Celotex Corp., 456 N.E.2d 131, 134 (Ill. 1983): Where a death gives rise to two
statutory actions, “one permitting recovery of damages by the decedent’s estate
under the Survival Act and the other recovery by the next of kin under the Wrongful
Death Act, this court refused to impose, in addition, a common law exaction against
the defendant, under the label of exemplary damages, which becomes a windfall for
the plaintiff.” See also Van Winkle v. Owens-Corning Fiverglass Corp., 683 N.E.2d
985 (Ill. App. 1997)(“Illinois law is clear that punitive damages are not recoverable
under the Survival Act … or the Wrongful Death Act”); Haist v. Wu, 601 N.E.2d 927,
937 (Ill. App. 1992)(“The fact that common law plaintiffs are treated differently
from wrongful death beneficiaries has repeated withstood equal protection
Clearly, a federal court sitting in diversity jurisdiction must apply the
substantive law of the state in which it sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64
(1938); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941); Malone
v. Corr. Corp. of Am., 553 F.3d 540, 543 (7th Cir. 2009). The Erie doctrine extends
to choice-of-law principles and requires the court to apply the conflicts rules of the
forum state. Land v. Yamaha Motor Corp., 272 F.3d 514, 516 (7th Cir. 2001), citing
Klaxon Co. 313 U.S. at 496-97. Thus, this Court must apply the substantive law of
Illinois (the state in which this Court sits), including Illinois’ “conflict of laws” rules.
The Illinois Supreme Court uses the “most significant relationship” test to
choose the applicable law in tort cases. Fredrick v. Simmons Airlines, Inc., 144
Page 6 of 12
F.3d 500, 503-04 (7th Cir. 1998). See also Ruiz v. Blentech Corp., 89 F.3d 320,
323-24 (7th Cir. 1996), cert. denied, 519 U.S. 1077 (1997).
In practice, this means “the law of the place of injury controls unless Illinois
has a more significant relationship with the occurrence and with the parties.”
Fredrick, 144 F.3d at 503-04 (emphasis added). This Court must decide whether
Illinois has the most significant relationship by examining the following factors: (1)
the place of the injury, (2) the place where the injury-causing conduct occurred, (3)
the domicile of the parties, and (4) the place where the relationship between the
parties is centered. Id.
Stated another way, a federal district court sitting in Illinois must conform to
Illinois’ choice-of-law rules, which are grounded in the Restatement (Second) of
Conflicts of Law. “These rules require that the court employ the substantive law of
the state with the most significant relationship to the tort at issue.” Suzik v.
Sea-Land Corp., 89 F.3d 345, 348 (7th Cir. 1996) (citing Ingersoll v. Klein, 262
N.E.2d 593, 595 (Ill. 1970)).
Thus, the question now before this Court is which state has the most
significant relationship to the torts alleged by plaintiff in this suit, bearing in mind
that, “in the absence of unusual circumstances, the highest scorer on the ‘most
significant relationship’ test is the place where the tort occurred.” Spinozzi v. ITT
Sheraton Corp., 174 F.3d 842, 844 (7th Cir. 1999).
Careful assessment of the factors cited above leads to the conclusion that
Illinois has the most significant relationship to the torts alleged herein, and
Page 7 of 12
therefore, Illinois law governs and plaintiff is not entitled to punitive damages.
First, Illinois is the place of injury.
Second, Illinois is the place where the
injury-causing conduct occurred (i.e., where Horne is alleged to have negligently
operated the tractor trailer that collided with Conway causing his unfortunate
death). In addition, Illinois is the state of domicile of defendant Horne; Illinois is
the state where Horne worked out of for Adrian Carriers and Illinois is the place
where the “relationship” (if any) between the parties is centered.
Further, plaintiff’s fourth amended complaint contains claims brought under
the Wrongful Death Act, 740 ILCS 180/1, et seq., and the Survival act, 740 ILCS
5/27-6, both under Illinois law (Doc. 72: Count I- ¶ ¶ 66 & 67, ps. 11 & 12; Count II¶ ¶ 75 & 76, ps. 14 - 16; Count III- p. 19; Count IV- ¶ 86, p. 17; Count V- ¶ 91, p. 18;
and Count VI- ¶ 93 (“incorporates and realleges the above paragraphs as if more
fully set forth herein”), p. 18).
In addition, plaintiff filed her lawsuit in the
Southern District of Illinois which the Court notes is not the district where the
accident occurred; that district is the Northern District of Illinois, Eastern Division.
See 28 U.S.C. § 93(a)(1). Because the Court cannot conclude that Missouri has a
more significant relationship with the occurrence/parties than does the place of
injury, the law of the place of the injury (Illinois) controls this issue. Ingersoll, 262
N.E.2d at 595. Illinois is the state with the most significant relationship to the
torts alleged by plaintiff.
Thus, the Court grants the motion for summary
judgment as to punitive damages.
Counts I and IV - negligent hiring, supervision, retention or entrustment claims
Page 8 of 12
Next, defendants argue that they are entitled to summary judgment because
under Illinois law, a plaintiff who is injured in a motor vehicle accident cannot
maintain a direct claim for negligent hiring, supervision, retention or entrustment
against an employer where the employer admits responsibility for the conduct of its
agent/employee under a respondeat superior theory.
See Gant v. L.U. Transport,
770 N.E.2d 1155, 1160 (Ill. App. 2002). Plaintiff opposes the motion, yet in her
brief concedes that if the Court finds that if Illinois law applies and punitive
damages are unavailable to her then this motion fails as well. As explained above,
the Court finds that Illinois law applies.
Thus, the Court grants the motion for
summary judgment as to the claims contained in Counts I and IV regarding
negligent hiring, supervision, retention or entrustment.
Counts IV, V and VI
Lastly, defendants argue that they are entitled to summary judgment on
plaintiff’s Survival Act claims because plaintiff cannot provide an essential element
of her claims. Specifically, defendants argue there is no competent evidence that
David Conway did not experience instantaneous death.
maintain that even if David Conway did survive for any amount of time following
impact, there is no evidence that he was ever conscious or experienced pain
between impact and death. Plaintiff counters that the evidence shows that David
Conway experienced a short amount of life from the moment of trauma until his
death. Thus, plaintiff maintains the evidence presents a jury question of whether
David Conway did in fact experience pain and suffering. The Court agrees with
Page 9 of 12
In Illinois, the Survival Act, 755 Ill. Comp. Stat. 5/27–6, allows the
decedent's estate to recover damages for the conscious pain and suffering
endured, and the medical expenses incurred, by the decedent before his death.
Thus, a claim under the Survival Act is a derivative one; it is brought by the
decedent’s representative but based on the injury to the decedent. See Advincula
v. United Blood Servs., 176 Ill.2d 1, 223 Ill.Dec. 1., 678 N.E.2d 1009, 1029 (Ill.
1997); Patch v. Glover, 248 Ill.App.3d 562, 573, 188 Ill.Dec. 13, 618 N.E.2d 583,
591 (Ill. App. 1993).
Those damages include conscious pain and suffering prior
to death, see Murphy v. Martin Oil Co., 56 Ill.2d 423, 431, 308 N.E.2d 583, 587
(Ill. 1974), however briefly experienced, see Glover v. City of Chicago, 106
Ill.App.3d 1066, 1072, 62 Ill.Dec. 597, 436 N.E.2d 623, 628 (Ill. App. 1982).
According to Illinois pattern jury instructions, survival damages are
ascertained by taking into consideration the nature, extent, and duration of the
injury. See IPI 31.10. When determining whether the decedent experienced
conscious pain permitting a recovery pursuant to the Survival Act, a jury may
consider evidence regarding a decedent’s injuries. Hall v. National Freight,
Inc., 264 Ill.App.3d 412, 427, 201 Ill.Dec. 359, 636 N.E.2d 791 (Ill. App. 1994).
“It is not required that medical testimony be offered to establish
conscious pain and suffering where lay testimony describing a
decedent's actions prior to death [,] coupled with evidence concerning
[the decedent's] injuries[,] is sufficient to support a recovery. [Citation.]
In making such a determination, an important factor is evidence
indicating that the decedent was conscious prior to death. [Citation.]
Therefore, damages for conscious pain and suffering may be sustained
Page 10 of 12
where the decedent was shown to have been conscious prior to death
and there is evidence from lay witnesses regarding what took place
prior to the cessation of consciousness. [Citation.]”
Cretton v. Protestant Memorial Med. Ctr., Inc., 371 Ill.App.3d 841, 846–47, 309
Ill.Dec. 422, 864 N.E.2d 288, 299 (Ill. App. 2007)(quoting Hall, 264 Ill.App. 3d at
427-28, 201 Ill.Dec. 359, 636 N.E.2d 791).
At this point in the litigation and viewing all the facts in the light most
favorable to plaintiff as the Court must, the Court finds that this is a jury question
and the assessment of the testimony goes to the weight the jury wants to accord that
Thus, the Court denies defendants motion for summary
judgment as the claims related to the Survival Act.
Accordingly, the Court GRANTS both the motion for summary judgment on
punitive damages (Doc. 107) and the motion for summary judgment on Counts I
and IV relative to any claims of negligent hiring, training, supervision, retention &
entrustment (Doc. 109) and DENIES the motion for summary judgment on Counts
IV, V and VI related to claims under the survival act (Doc. 110).
DIRECTS the Clerk of the Court to enter judgment in favor of defendants and
against plaintiff as to the punitive damages claims and the negligent hiring,
training, supervision, retention & entrustment claims contained in Counts I and IV
of the Fourth Amended Complaint at the close of the case.
Page 11 of 12
Further, the Court SETS this matter for Final Pre-trial Conference on
December 14, 2017 at 11:00 a.m.
Lastly, the Court DIRECTS the parties to
contact Magistrate Judge Reona J. Daly’s chambers if a settlement conference
would be beneficial.
Digitally signed by
Judge David R.
IT IS SO ORDERED.
United States District Judge
Page 12 of 12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?