VOGLER, SR. et al v. JAMES R. POSHARD & SON, INC. et al
ORDER granting Defendants' 73 Partial Motion for Summary Judgment as to Plaintiffs' Claim for Punitive Damages. Signed by Judge Richard L. Young on 10/20/2015. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
THOMAS VOGLER, SR.,
THOMAS VOGLER, JR.,
TIFFANY M. VOGLER, and
JAMES R. POSHARD & SON, INC., and
ENTRY ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs, Thomas Vogler, Sr., Thomas Vogler, Jr., Tiffany M. Vogler, and
Tammy Vogler, brought this action against Defendants, James R. Poshard & Son, Inc.
(“Poshard”) and Jonathan Shealey, for damages arising out of a vehicular accident that
occurred on U.S. Highway 231 on March 20, 2014. On that day, Shealey was driving a
tractor-trailer owned by Poshard. Plaintiffs allege Shealey negligently crossed the center
line and collided with Plaintiffs’ automobile. Defendants now move for summary
judgment on Plaintiffs’ claim for punitive damages. For reasons explained below, the
court GRANTS the motion.
Summary judgment is appropriate if the record “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). To survive summary judgment, the nonmoving party must present
specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A genuine
dispute of fact exists if, based on the evidence presented, a reasonable jury could find in
favor of the non-moving party on a particular issue. Id. at 248. The court views all
admissible evidence in the light most favorable to the nonmoving party, but it need not
draw unreasonable inferences. Tindle v. Polte Home Corp., 607 F.3d 494, 496 (7th Cir.
Poshard is a trucking company and the registered owner of the tractor involved in
the collision on March 20, 2014. On that day, Shealey, employee of Poshard and driver
of the tractor-trailer, was transporting coal from a coal mine in Corning, Indiana, to a
power plant in Owensboro, Kentucky. Shealey would typically deliver three loads of
coal from the mine to the power plant in a single day. The accident occurred at
approximately one o’clock p.m. as Shealey headed northbound on U.S. Highway 231 to
pick up a third load of coal. (Filing No. 86–9 (“Shealey Dep.”) at 8–10).
Highway 231 is a two-lane highway with a single lane for northbound traffic and a
single lane for southbound traffic. The posted speed limit where the accident occurred
was fifty-five miles per hour. (Filing No. 86-2 at 3–6). In response to interrogatories,
Shealey stated that he was traveling fifty miles per hour. (Filing No. 86-10 at 7).
Shealey testifies that he entered the southbound lane where he collided with another
tractor-trailer heading south on Highway 231. After colliding with the tractor-trailer,
Shealey testifies that he remained in the southbound lane where he collided head-on with
Plaintiffs’ vehicle traveling in the southbound lane behind the tractor-trailer. Plaintiffs
suffered serious injuries as a result of the collision. (Filing No. 86-2 at 6–7). Shealey
pleaded guilty to a citation for crossing the center line. (Shealey Dep. 69–70; Filing No.
86-4 at 3).
The court must address the parties’ objections to designated evidence. Defendants
designate documents purportedly consisting of Shealey’s work history report, two
different reports of his driving record, a drug test report, a photocopy of Shealey’s
driver’s license, and a medical examiner’s certificate. Plaintiffs object to the documents
on grounds that Defendants failed to authenticate them with affidavits.
Because the court has diversity jurisdiction over this matter, federal law governs
admissibility of evidence. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 943
(7th Cir. 2005). On summary judgment, the court will not rely upon unsworn or
unauthenticated documents to which the opposing party objects. Vukadinovich v. Bd. of
Sch. Trs., 776 F. Supp. 1325, 1326 (N.D. Ind. 1991), aff’d, 978 F.2d 403 (7th Cir. 1992).
Defendants have not attached any affidavits or supporting deposition testimony to the
designations and therefore failed to meet their burden of producing evidence sufficient to
support a finding that the documents are what Defendants claim them to be. See id.; Fed.
R. Evid. 901(a). Thus, the court excludes the documents from its consideration.1
Defendants object to Plaintiffs’ reliance upon the Indiana Officer’s Standard Crash
Report (Filing No. 86-2 (“Crash Report”)) as inadmissible hearsay. The court agrees. To
the extent Plaintiffs rely upon witness statements reported in the Crash Report—as
opposed to firsthand observations of the officer—the court finds it inadmissible. See
Jordan v. Binns, 712 F.3d 1123, 1133 (7th Cir. 2013) (citing the advisory committee’s
note to Federal Rule of Evidence 803(8), observing that “[p]olice reports have generally
been excluded except to the extent to which they incorporate firsthand observations of the
In the Second Amended Complaint, Plaintiffs allege that Defendants’ conduct
warrants the imposition of punitive damages. (See Filing No. 62 (“Sec. Am. Compl.”) at
6–12). Plaintiffs appear to base their claim for punitive damages against Poshard on a
theory of vicarious liability.2 Defendants argue Plaintiffs have failed to establish a
The court notes that Defendants declined to respond to Plaintiffs’ objections.
On September 10, 2015, the court granted Defendants’ motion for summary judgment on
Plaintiffs’ claim of negligent entrustment. (See Filing No. 110). Additionally, Plaintiffs disavow
of any claims of negligence on the basis that Poshard negligently hired Shealey, (see Filing No.
86-1 at 3–4), but they do not articulate a cause of action against Poshard. Punitive damages is
not an independent cause of action. Yost v. Wabash College, 3 N.E.2d 509, 514 (Ind. 2014).
Thus, the court construes Plaintiffs’ evidence and arguments as supportive of a claim of
vicarious liability against Poshard for the alleged negligence of its employee, Shealey.
dispute of material fact on the issue of punitive damages against either defendant and,
accordingly, the court should grant summary judgment.
Indiana law views punitive damages as a means of deterring and punishing
wrongful activity. Yost, 3 N.E.2d at 523. Because punitive damages are not
commonplace and rarely appropriate, a “plaintiff has an especially heavy burden of proof
at trial.” Id. at 524. In tort actions, a plaintiff must show by clear and convincing
evidence that the defendant either (1) engaged in “willful and wanton misconduct,”
knowingly subjecting other persons to probable injury, or (2) acted maliciously,
fraudulently, oppressively, or with gross negligence and such conduct “was not the result
of a mistake of law or fact, honest error of judgment, overzealousness, mere negligence
or other such noniniquitous human failing.” Id. at 523–24 (citations and internal
quotation marks omitted).
Consistent with purposes of deterrence and punishment, Indiana law does not
impose punitive damages against an employer strictly on the basis of respondeat superior
for the misconduct of an employee. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 261
(Ind. Ct. App. 2013). Rather, punitive damages against an employer require “evidence of
positive or collusive action by the employer.” Id. To show such complicity, Indiana
courts consider whether:
(a) the principal or a managerial agent authorized the doing and the manner
of the act, or
(b) the agent was unfit and the principal or a managerial agent was reckless
in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the
scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved
Id. at 260 (citing Restatement (Second) of Torts § 909 (Am. Law Inst. 1979)).
Defendants argue that Plaintiffs failed to present evidence that Poshard engaged in
wrongful conduct that warrants punitive damages under Indiana law. Plaintiffs rely on
deposition testimony of Shealey to support the assertion that Shealey routinely drove
more than twelve consecutive hours in a fourteen-hour period in violation of 49 C.F.R. §
395.3(a), which limits commercial drivers to eleven hours. (See Filing No. 87 ¶¶ 35–36).
Plaintiffs then assert, without citation to evidence, that Poshard willfully and wantonly
disregarded Shealey’s practice of violating the eleven-hour limit. In support, Plaintiffs
cite the following exchange:
So you would be gone from home over 12 hours every day working;
(Shealey Dep. at 9). This exchange, however, follows Shealey’s testimony that he
typically left home in his tractor at approximately 5:20 a.m. and that his day ended
“[a]round 4:30, 5:00 [p.m.].” (Shealey Dep. at 8–9). Shealey also testified that, prior to
the accident, he took a lunch break and “[t]alked to another fellow driver about 15
minutes or so.” (Id. at 10). Moreover, the collision occurred “somewhere near 1:00
[p.m.],” and Plaintiffs do not assert that driver fatigue contributed to the collision. See
Cast N. Am. (Trucking) Ltd. v. NLRB, 207 F.3d 994, 999 (7th Cir. 2000) (noting that
regulations in § 395.3 are designed to prevent drivers from operating commercial
vehicles while impaired by fatigue, illness, or any other cause).
As Defendants point out, the relevant inquiry is not how much time a driver
spends away from home, but rather how much “driving time” he or she accrues within a
fourteen-hour window. See 49 C.F.R. § 395.3(a)(3) (“A driver may drive a total of 11
hours during the 14-hour period specified in paragraph (a)(2) of this section”); 49 C.F.R.
§ 395.2 (“Driving time means all the time spent at the driving controls of a commercial
motor vehicle in operation.”). In light of the entire exchange between Shealey and
Plaintiffs’ counsel, (see Shealey Dep. at 8–10), Plaintiffs’ assertion of fact reflects a
conflation of “time away from home” and “driving time.” This cursory attempt to show a
violation of § 395.3(a) fails to establish a genuine dispute of fact, and the court declines
to develop the argument for Plaintiffs. See Krepps v. NIIT (USA), Inc., No. 11C8787,
2013 WL 2636879, at *7 (citing Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 609
(7th Cir. 2008) for the proposition that it is not the court’s role “develop and/or support
arguments on behalf of parties”). Even if the court assumes the truth of Plaintiffs’
assertion and its relevance to causation, they present no evidence that Poshard had
knowledge of a violation nor provide any reason why such knowledge should be imputed
to the company. Therefore, the court grants summary judgment as to Plaintiffs’ claim for
punitive damages against Poshard.
Plaintiffs fare no better in their claim for punitive damages against Shealey.
Plaintiffs assert (1) that Shealey was speeding just before the collision; (2) that Shealey
has a record of speeding; (3) that Shealey crossed the center line where he collided with
one truck and Plaintiffs’ vehicle; (4) that Shealey referred to his record of speeding
tickets as “being human”; (5) that Shealey was driving while impaired by controlled
substances; (6) and that Shealey did not provide aid to the Plaintiffs immediately
following the collision. Taken together, Plaintiffs maintain, these assertions create a
genuine dispute of material fact as to whether Shealey operated his tractor with willful
and wanton disregard for the safety of Plaintiffs. Defendants challenge each of these
assertions of fact on grounds that they either obfuscate the evidence or simply fail to
assert a degree of culpability that exceeds mere negligence.
The court need not address whether Shealey’s driving speed constituted a reckless
disgregard for other drivers, as Plaintiffs’ own designated evidence establishes that
Shealey’s driving speed did not exceed the posted limit. (See Crash Report at 3–6
(indicating posted speed limit of 55 miles per hour); Filing No. 86-10 at 7 (stating
Shealey’s driving speed as 50 miles per hour)). Plaintiffs give the court no reason why
the alleged conduct of Shealey immediately following a major vehicular accident should
support a finding of misconduct that caused the accident. In any event, Shealey testified
that he rendered no aid to Plaintiffs because when he asked one of the Plaintiff
passengers whether they “were all right,” the passenger answered in the affirmative. (See
Shealey Dep. at 19–20). Nor do Plaintiffs present any evidence that Shealey was driving
while impaired. Indeed, Plaintiffs’ evidence indicates both that Shealey submitted to a
drug test and that he was not charged with driving while impaired. (See Crash Report at
3; Filing No. 86-10 at 5; Shealey Dep. at 7, 20–21; Filing No. 86-4 at 3–4). Because
Plaintiffs have failed to establish a degree of culpability required to support a claim of
punitive damages against Shealey, the court grants summary judgment.
Plaintiffs’ “Motion to Amend” the Response in Opposition to Partial
On August 26, 2015, a month after filing their Response in Opposition to Partial
Summary Judgment, Plaintiffs filed a “Motion to Amend Opposition to Motion for
Partial Summary Judgment Regarding Punitive Damages to Add Newly Discovered
Evidence” (Filing No. 106). Plaintiffs seek to make new assertions of fact based on the
deposition testimony of Knox Whitt, the driver of the tractor-trailer with which Shealey’s
tractor collided just prior to colliding with Plaintiffs’ vehicle. Specifically, Plaintiffs
wish to assert (1) that Shealey was looking down at his cellular phone just prior to the
accident, and (2) that Whitt overheard an exchange between a responding officer and
Shealey confirming that Shealey had ended a phone call with his wife just prior to the
accident. (See Filing No. 106 at 3–4).
Plaintiffs provide no legal support for such a motion but nonetheless ask the court
to consider the evidence to support their opposition to summary judgment on the claim
for punitive damages. The court declines. Rule 56(d) permits a party to seek a stay of
summary judgment proceedings when, by affidavit or declaration, it establishes that it
needs more time to gather evidence to justify its opposition to summary judgment. As
Defendants note, Whitt was involved in the accident and could have been deposed well
before this stage of the proceedings.
For the foregoing reasons, the court GRANTS Defendants’ Partial Motion for
Summary Judgment as to Plaintiffs’ Claim for Punitive Damages (Filing No. 73).
SO ORDERED this 20th day of October 2015.
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
RICHARDDistrict of Indiana JUDGE
Southern L. YOUNG, CHIEF
United States District Court
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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