KLINE et al v. GEMINI TRANSPORT, LLC et al
ORDER on Defendants' 78 Motion for Summary Judgment - FedEx and Lallathin's Motion for Summary Judgment is GRANTED (Filing No. 78), and judgment is entered in their favor. The Clerk is instructed to terminate FedEx and Lallathin as def endants in this action. The Motion for Leave to File a Supplemental Reply (Filing No. 93) and Motion for Oral Argument (Filing No. 106 ) are DENIED. No partial final judgment will be issued at this time, instead, final judgment will be made upon conclusion of all claims in this action. In addition, the Clerk is directed to update the docket to reflect the correct spelling of Defendant Delbert E. Lallathin, Jr.'s name as noted in Filing No. [79-4]. The Klines' claims against Gemini and Zere may proceed to trial. (See Entry.) Signed by Judge Tanya Walton Pratt on 6/22/2018. (NAD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
MATTHEW KLINE and MARK KLINE,
Individually and on behalf of minor
GEMINI TRANSPORT, LLC,
AMARILDO ZERE, FEDEX GROUND
PACKAGE SYSTEM, INCORPORATED,
and DELBERT E. LALLATHIN, JR.,
Case No. 1:17-cv-00353-TWP-DLP
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment filed pursuant to
Federal Rule of Civil Procedure 56 by Defendants FedEx Ground Package System, Inc. (“FedEx”)
and Delbert E. Lallathin, Jr. (“Lallathin”) (collectively, “Defendants”) (Filing No. 78). Following
a multi-vehicle car accident during a winter storm, Plaintiffs Matthew Kline and Mark Kline,
individually and on behalf of his minor daughter Hayden Kline, (collectively, “Klines” or
“Plaintiffs”) filed this negligence action against the Defendants as well as co-defendants Gemini
Transport, LLC (“Gemini”) and Amarildo Zere (“Zere”). The Defendants filed their Motion for
Summary Judgment, asserting that the evidence shows they did not breach a duty to the Klines and
did not cause the Klines’ injuries or damages. Also before the Court is Defendants’ Motion for
Leave to File Supplemental Reply in Support of FedEx Ground Package System, Inc.’s and Delbert
E. Lallathin, Jr.’s Motion for Summary Judgment, (Filing No. 93), and Motion for Hearing on
Motion for Summary Judgment, (Filing No. 106). For the following reasons, the Court grants the
Motion for Summary Judgment and denies the remaining motions.
The following facts are not necessarily objectively true, but as required by Federal Rule of
Civil Procedure 56, the facts are presented in the light most favorable to the Klines as the nonmoving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
On February 14, 2015, Matthew Kline was driving southbound on Interstate 69 near
Washington Township, Indianapolis, Indiana, with Mark Kline and Hayden Kline as passengers.
Lallathin also was driving southbound on Interstate 69 in this same area, driving a FedEx tractortrailer. Zere was driving a Gemini tractor-trailer in the same area, also heading southbound on
Interstate 69 (Filing No. 1 at 2–4).
Lallathin was driving a tandem FedEx tractor-trailer. Although he had not previously
encountered visibility issues while driving that day, Lallathin testified there was a sudden loss of
visibility, which he referred to as a whiteout (Filing No. 79-4 at 10–11). The wind was blowing
snow drifts, which reduced visibility, and the roads were slick (Filing No. 79-5 at 5–6; Filing No.
90-2 at 5). Lallathin emerged from the blinding whiteout condition in the road to see a tractortrailer stopped in the roadway in front of him (Filing No. 79-4 at 7–9, 12). There were twentyeight vehicles involved in an accident at this location (Filing No. 79-5 at 4).
Lallathin put on his flashing hazard lights and slowed his FedEx truck (Filing No. 79-4 at
10). He moved into the left lane in an attempt to avoid a collision. As he moved to the left, the
rear trailer on his tandem tractor-trailer jackknifed, and his rear trailer struck another tractor-trailer
stopped in the road. Lallathin did not strike any object with his tractor-trailer other than his rear
trailer striking the stationary tractor-trailer. Id. at 8–9, 12–13. Lallathin’s truck came to a stop in
the left lane and median of the highway (Filing No. 79-5 at 5, 7; Filing No. 90-2 at 7).
Soon thereafter, Zere approached the scene of the multi-vehicle accident while driving his
Gemini tractor-trailer. He also was dealing with reduced visibility because of the whiteout
conditions. He was able to see for a second and then the next second he was unable to see anything.
Once he could see again, he was able to see only one to two truck lengths ahead of him. Zere’s
truck was traveling in the right lane when it emerged from the whiteout conditions. When the
whiteout cleared, Zere saw many vehicles involved in an accident stopped in front of him (Filing
No. 79-5 at 5–7). Zere made a last second veer to the left in order for the right side of his tractor
to absorb the impact of the collision. Zere made this maneuver also to prevent his tractor from
crashing into two cars that had collided with the FedEx truck (Filing No. 90-3 at 3, 5). Lallathin’s
FedEx truck was to the left of Zere’s truck when Zere veered to the left and collided with another
truck (Filing No. 79-5 at 7).
When Zere’s truck collided with another stopped truck (not Lallathin’s FedEx truck), this
collision caused Zere’s truck to slide to the right and collide with the Klines’ vehicle, which was
forced off the roadway and into a ditch (Filing No. 79-5 at 7–8; Filing No. 90-5 at 3; Filing No. 1
at 2–4). The Klines sustained multiple injuries to their face, neck, head, and back (Filing No. 1 at
2). Zere did not collide with Lallathin’s FedEx truck. The FedEx truck did not come into contact
with either Zere’s Gemini truck or the Klines’ vehicle (Filing No. 79-5 at 7–8; Filing No. 79-4 at
7–9). Zere acknowledged that Lallathin and the FedEx truck did not cause him to do, or not do,
anything as he approached the accident scene. Zere simply was reacting to a large group of
vehicles (Filing No. 79-5 at 10).
Matthew Kline acknowledged that he knows of no basis to say that Lallathin’s FedEx truck
caused or contributed to their accident (Filing No. 79-6 at 4). Matthew Kline could not recall seeing
Lallathin’s FedEx truck before the accident (Filing No. 90-5 at 3). Similarly, Mark Kline, who
was a passenger in Matthew Kline’s vehicle, acknowledged that he knows of no basis to say that
Lallathin’s FedEx truck caused or contributed to their accident, and he could not recall seeing the
FedEx truck before the accident (Filing No. 79-7 at 3–5).
On August 31, 2016, the Klines filed their Complaint against Zere, Gemini, Lallathin, and
FedEx, asserting claims of negligence and vicarious liability and requesting compensatory and
punitive damages (Filing No. 1). Following discovery, on November 29, 2017, Lallathin and
FedEx filed their Motion for Summary Judgment, arguing that the evidence has revealed that
Lallathin and FedEx did not cause the Klines’ injuries and they did not breach any duty to the
Klines (Filing No. 78).
SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 106 S.Ct. 1348 (1986). Federal Rule of Civil Procedure 56
provides that summary judgment is appropriate if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007). In ruling on
a motion for summary judgment, the court reviews “the record in the light most favorable to the
non-moving party and draw[s] all reasonable inferences in that party’s favor.” Zerante, 555 F.3d
at 584 (citation omitted).
“However, inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d
624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who
bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively
demonstrate, by specific factual allegations, that there is a genuine issue of material fact that
requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet
this burden with conclusory statements or speculation but only with appropriate citations to
relevant admissible evidence.” Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind.
1995) (citations omitted).
“In much the same way that a court is not required to scour the record in search of evidence
to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits
of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation
marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion
for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir.
1997) (citations and quotation marks omitted).
In their Motion for Summary Judgment, Lallathin and FedEx argue that there are no facts
to support a claim of negligence against them because the elements of breach and causation are
lacking. They also have filed related motions, asking for leave to file a “supplemental reply” in
support of their Motion for Summary Judgment and asking for oral argument on the Motion. The
Court will first address the Motion for Summary Judgment and then turn to the related motions.
Motion for Summary Judgment
In order for the Klines’ negligence claims against the Defendants to proceed, the Klines
must present evidence supporting each of the elements of a claim for negligence: (1) a duty was
owed to the plaintiff by the defendant; (2) the defendant breached that duty by allowing conduct
that fell below the applicable standard of care; and (3) compensable injury proximately caused by
the defendant’s breach of duty. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386
(Ind. 2016). The Defendants assert that there is no evidence to support the elements of breach or
The Klines alleged in their Complaint that Lallathin was negligent by striking Zere’s truck,
which caused Zere to strike the Klines’ vehicle, which caused the Klines to be forced off the road
and into a ditch. The allegations in the Complaint also claim that Lallathin was negligent by failing
to operate his truck in a safe manner and in accordance with traffic laws. However, the Defendants
assert, following discovery, it has become clear that these allegations in the Complaint are not
correct. They point out that the testimony of the parties undisputedly establishes that Lallathin’s
FedEx truck never struck and was never struck by Zere’s truck, and Lallathin’s truck never struck
the Klines’ vehicle. The FedEx truck came to a complete stop before Zere arrived at the scene of
the multi-vehicle accident in front of him. The Defendants reiterate that Zere never struck
Lallathin’s truck, and Zere testified that he did not believe the presence of Lallathin’s truck affected
anything he did.
The testimony of Zere and Lallathin is not contradicted by any other witness, including
Matthew Kline and Mark Kline, who did not see Lallathin’s truck before the accident and who
know of no reason to think that Lallathin’s truck caused or contributed to their accident.
Defendants assert that there is no evidence to support the allegations in the Complaint that
Lallathin failed to obey traffic laws or to obey traffic devices. Thus, they argue the evidence
negates any basis to establish that Lallathin breached a duty to the Klines or that he caused their
injuries. The Defendants further argue that this same evidence and line of reasoning negates any
basis to support the Klines’ request for punitive damages because of “gross negligence”.
In response to the Motion for Summary Judgment, the Klines concede:
When Plaintiffs filed their complaint, the only facts known to them was
what they personally saw or knew and the crash report produced by the police. …
During discovery, it became clear that the FedEx truck did not come into
contact with the Gemini truck at all. The testimony of both Mr. Zere and Mr.
Lallathin confirms this. It is also clear that the FedEx truck never struck Plaintiffs’
vehicle. On these facts Plaintiffs agree with FedEx and Lallathin (though Plaintiffs
do not necessarily agree with all the facts identified in their motion for summary
judgment). Plaintiffs, essentially, agree that FedEx and Lallathin were not
proximate causes of Plaintiffs’ injuries. …
(Filing No. 89 at 1–2.)
Co-defendants Zere and Gemini oppose Lallathin’s and FedEx’s Motion for Summary
Judgment. They assert that the following material facts create a dispute that precludes summary
1. Whether Delbert Lallathin breached his duty and operated his tractor-trailer
units too fast for existing weather and road conditions resulting in him striking
a stationary tractor-trailer unit and blocking the left lane, shoulder and median
of southbound I-69.
2. Whether Delbert Lallathin’s blocking of the left lane, shoulder and median of
southbound I-69 eliminated the potential “out” for Amarildo Zere to take
3. Whether Delbert Lallathin’s blocking of the left lane, shoulder and median of
southbound I-69 and removing Zere’s “out” to take evasive action was a
proximate cause of the subject accident.
4. Whether Zere’s trailer unit slid to the right following impact with the stopped
vehicle or whether the Klines struck Zere’s unit from the rear.
(Filing No. 90 at 2–3.)
Zere and Gemini argue there is a dispute regarding whether Lallathin operated his FedEx
truck in a reasonable and lawful manner because he struck a stationary truck on the interstate in
adverse weather conditions. They assert that, if this conduct is not a breach of the general duty
owed to other motorists, then this argument also should apply to Zere because he struck the same
stationary truck only moments later. Zere and Gemini also assert that testimony shows Lallathin
passed Zere at some point before the accident, thus raising an issue as to Lallathin’s speed.
Regarding causation, Zere and Gemini argue that Lallathin’s and FedEx’s argument is
flawed because there is no requirement that there be physical contact between Lallathin’s FedEx
truck and Zere’s truck for proximate cause to be attributed to Lallathin. They argue that Zere’s
testimony establishes he purposely drove the right front of his tractor into the left rear of the
stationary trailer in order to absorb the impact rather than driving into the two vehicles which had
just run into the FedEx truck which was blocking the left lane, left shoulder, and median. Zere
and Gemini argue that if the FedEx truck had not been there, a jury could reasonably conclude that
Zere could have veered left just as the FedEx truck did, but Lallathin had eliminated this option by
blocking everything from the middle of the interstate to the median barrier.
Zere and Gemini assert that Lallathin’s actions led directly to the actions taken by Zere,
which the Klines allege caused their accident. They assert that they “believe there was no
negligence on behalf of any of the parties in this unfortunate whiteout incident involving nearly
30 vehicles,” but the evidence is clear that to the extent there was negligence, “a jury should be
able to assess the actions of FedEx, Lallathin, Gemini, Zere and the Klines as the actions of all of
them occurred within moments of each other and as a consequence of the actions of each of them.”
(Filing No. 90 at 10.)
In their Reply Brief, the Defendants note that the Plaintiffs agree that FedEx and Lallathin
are not the proximate cause of their injuries, and when the Plaintiffs filed their Statement of Claims
after the summary judgment motion had been filed, they did not include any claims against FedEx
and Lallathin (see Filing No. 86). FedEx and Lallathin point out that facts of what actually
happened are undisputed. In Zere’s deposition testimony he admitted that Lallathin did not cause
him to do anything –
Q Was any of the FedEx tractor or trailer in the right-hand lane that you were
Q Did the actions of the FedEx vehicle make you do or not do anything as you
were approaching the accident scene?
(Filing No. 79-5 at 10).
Regarding Zere’s and Gemini’s assertion that there is a factual issue about Lallathin’s
speed, the Defendants argue that Zere testified he was not sure whether the FedEx truck that passed
him was the same FedEx truck driven by Lallathin, and such speculative testimony cannot defeat
a motion for summary judgment (see Filing No. 91-1 at 6–7). They also contend that, pursuant to
Federal Rule of Evidence 404(b), such speculative testimony of speeding cannot be used to show
a person’s character and later action in conformity therewith. They assert that Zere and Gemini
may not argue that five minutes before the accident Lallathin passed Zere, so he must have been
driving too fast for the weather conditions at the time of the accident.
FedEx and Lallathin argue that Zere’s and Gemini’s four paragraphs of “material issues of
fact” are not actually material and are not based in the evidence in light of Zere’s testimony that
Lallathin did not cause him to do or not do anything. The idea that Zere was “deprived of a
potential out” is a speculative and creative argument crafted by Zere’s attorney. The facts reveal
that Lallathin and FedEx did not cause the Klines’ injuries.
“Whether a particular act or omission amounts to a breach . . . is generally a question of
fact for the jury.” Devereux v. Love, 30 N.E.3d 754, 763 (Ind. Ct. App. 2015). Additionally,
“proximate cause is generally a question of fact.” Bunger v. Brooks, 12 N.E.3d 275, 282 (Ind. Ct.
App. 2014). However, the Court notes that “breach can become a question of law where the facts
are undisputed and only a single inference can be drawn therefrom,” Devereux, 30 N.E.3d at 763,
and proximate cause “becomes a question of law where only a single conclusion can be drawn
from the facts.” Bunger, 12 N.E.3d at 282.
The facts of what actually occurred in this case are undisputed. Lallathin came upon the
scene of a multi-vehicle accident and became aware of it suddenly when he emerged from a snowy,
whiteout condition. To avoid colliding with a stopped tractor-trailer, Lallathin swerved to the left
and his rear trailer jackknifed and hit the stopped tractor-trailer. Lallathin’s FedEx truck came to
rest in the left lane, left shoulder, and median. Thereafter, Zere came upon the scene of the
accident. The whiteout conditions also inhibited Zere’s vision. He was driving in the right lane,
and Lallathin’s FedEx truck was to his left. When he suddenly became aware of the stopped
vehicles in front of him, Zere also swerved to the left. He also collided with the other stopped
tractor-trailer. This collision caused Zere to slide to the right and collide with the Klines’ vehicle,
which was then forced off the roadway and into a ditch. Zere did not collide with Lallathin’s
FedEx truck and Lallathin’s truck did not come into contact with Zere’s truck or the Klines’
Zere’s and Gemini’s alleged disputed material facts are based on speculation and
conjecture rather than on the evidence. And speculation and conjecture cannot defeat a summary
judgment motion. Dorsey, 507 F.3d at 627. They argue that Lallathin’s conduct was a proximate
cause to the Klines’ injuries because he took away the “potential out” for Zere to swerve to the left
and avoid the collision with the other stopped tractor-trailer and the Klines. This argument is not
based in factual evidence of what actually happened but rather is a highly speculative suggestion
of what Zere might have been able to do or what he possibly could have done differently. This
contention is not sufficient to defeat a summary judgment motion.
Also fatal to this argument is the fact—supported by the undisputed evidence—that Zere
actually did swerve to the left when confronted with the stopped vehicles in front of him. Counsel
argues that Lallathin’s conduct proximately caused the damage because Lallathin took away the
“potential out” for Zere to swerve to the left, yet Zere did swerve to the left and still collided with
the stopped tractor-trailer and the Klines’ vehicle.
The argument that there is a dispute whether Lallathin was speeding and driving in an
unreasonable and unsafe manner also is unavailing. Zere’s and Gemini’s evidence is simply their
personal speculation that Lallathin was speeding at the time of the accident because, at some earlier
time, Lallathin may have passed Zere on the road. However, this speculation cannot defeat
summary judgment. Importantly, Zere’s own testimony suggests that the driver of the FedEx truck
was not speeding when a FedEx truck (possibly driven by Lallathin) passed Zere. He testified,
Q Do you know how fast the FedEx truck was going when it passed you?
A He was under the limit.
Q Under the speed limit?
A Oh, yeah, he was under it, because I was slower than the speed limit.
(Filing No. 91-1 at 5).
Zere’s and Gemini’s opposition to summary judgment is based on speculation and
immaterial assertions, not material disputes of fact. The undisputed evidence of facts points to
only one conclusion—the Klines’ injuries were not caused by a breach of a duty by Lallathin or
FedEx. The Plaintiffs themselves agree that Lallathin and FedEx “were not proximate causes of
Plaintiffs’ injuries.” (Filing No. 89 at 2.) The Plaintiffs in fact dropped their claims against
Lallathin and FedEx from their Statement of Claims (Filing No. 86). Interestingly, Zere and
Gemini also asserted that they “believe there was no negligence on behalf of any of the parties in
this unfortunate whiteout incident involving nearly 30 vehicles.” (Filing No. 90 at 10.)
The negligence claims asserted against Lallathin and FedEx are appropriately disposed of
at the summary judgment stage because the undisputed evidence shows the elements of the claims
cannot be established.
Motion to File Supplemental Reply and Motion for Oral Argument
Lallathin and FedEx filed a Motion for Leave to File a Supplemental Reply (Filing No. 93)
to support their summary judgment motion because the Plaintiffs provided an expert accident
reconstruction report to the parties the day after Lallathin and FedEx filed their Reply Brief. They
ask for leave to file a supplemental reply to address the expert report, which places no fault on
them, since the report was not disclosed until after the Reply Brief was filed.
Zere and Gemini respond that leave should not be granted to file a supplemental reply
because the timing of the Plaintiffs’ expert witness disclosure complied with the case management
deadlines. If a party intended to use expert testimony in connection with a dispositive motion,
then such expert disclosures were required at least ninety days prior to the dispositive motions
deadline. In this case, the dispositive motions deadline was December 13, 2017, meaning that if
expert testimony was going to be used in connection with a motion for summary judgment, it had
to be served by September 14, 2017. But the expert testimony that FedEx and Lallathin attempt
to present was not served until January 12, 2018. Zere and Gemini argue that using this expert
report would be contrary to the case management plan.
The Court agrees that, in the interest of justice and to comply with the parties’ agreed upon
case management plan, the Motion for Leave to File a Supplemental Reply (Filing No. 93) is
Lallathin and FedEx also filed a Motion for Oral Argument on the Motion for Summary
Judgment (Filing No. 106). The parties more than adequately addressed the issues in their written
briefs, and in light of the Court’s determinations above, oral argument is not necessary to resolve
the summary judgment motion. Accordingly, the Motion for Oral Argument is denied.
For the reasons stated above, FedEx and Lallathin’s Motion for Summary Judgment is
GRANTED (Filing No. 78), and judgment is entered in their favor. The Clerk is instructed to
terminate FedEx and Lallathin as defendants in this action. The Motion for Leave to File a
Supplemental Reply (Filing No. 93) and Motion for Oral Argument (Filing No. 106) are DENIED.
No partial final judgment will be issued at this time, instead, final judgment will be made upon
conclusion of all claims in this action. In addition, the Clerk is directed to update the docket to
reflect the correct spelling of Defendant Delbert E. Lallathin, Jr.’s name as noted in Filing No. 794.
The Klines’ claims against Gemini and Zere may proceed to trial.
E.J. LEIZERMAN & ASSOCIATES
Michael J. Leizerman
E.J LEIZERMAN & ASSOCIATES
3450 West Central Avenue, Suite 328
Toledo, Ohio 43606
Samuel W. Jarjour
Eric P. Conn
SEGAL MCCAMBRIDGE SINGER & MAHONEY
39475 Thirteen Mile Road, Suite 203
Novi, Michigan 48374
David J. Yates
SEGAL MCCAMBRIDGE SINGER & MAHONEY
39475 Thirteen Mile Road, Suite 203
Novi, Michigan 48374
Robert D. Emmerson
DEFUR VORAN LLP
Deborah A. Kapitan
KOPKA PINKUS DOLIN PC (Crown Point)
James H. Milstone
KOPKA, PINKUS DOLIN PC
Kevin J. Plagens
KOPKA PINKUS DOLIN PLC
Ryan J. Schoffelmeer
KOPKA PINKUS DOLIN PC (Crown Point)
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