Meherg et al v. Pope et al

Filing 246

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on 4/14/2014 denying 238 Motion to Certify a Question of Law to the Kentucky Supreme Court. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:10-CV-00185-M
LARRY MEHERG, et al.

PLAINTIFFS

V.
MICHAEL R. POPE and
CRETE CARRIER CORPORATION

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Plaintiffs’ Motion to Certify a Question of Law to
the Kentucky Supreme Court [DN 238]. Fully briefed, this matter is ripe for decision. For the
following reasons, the Court holds that the Plaintiffs’ motion is DENIED.
I. BACKGROUND
This personal injury action arises from a motor vehicle accident that occurred on July 12,
2009. The undisputed evidence shows that the accident occurred on I-65 in Hart County,
Kentucky, when a tractor-trailer driven by Michael R. Pope struck a stopped vehicle in the rear,
causing that vehicle to collide with a second stopped vehicle. (See Police Report [DN 210-3] 12.) The second vehicle was occupied by the Plaintiffs: Larry Meherg, Aaron Meherg, and Kristin
Shearer Meherg. They suffered various personal injuries in the accident. In total, as a result of
the accident, five individuals were injured. Further, a six-year-old child was killed. (See id.)
On November 24, 2010, the Plaintiffs filed this action in state court, bringing negligence
and gross negligence claims against Mr. Pope. (See Compl. [DN 1-1] § IV.) The Plaintiffs also
brought a respondeat superior claim, as well as a negligent hiring, training, and supervision claim,

against Mr. Pope’s employer, Crete Carrier Corporation (“Crete”). (See id. at §§ III, V.) The
Defendants removed the action to this Court on diversity grounds. (Not. of Removal [DN 1].)

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On November 5, 2013, the Court issued a Memorandum Opinion and Order [DN 233], in
which it granted the Defendants summary judgment on the Plaintiffs’ punitive damages claims.
The Court found that “Mr. Pope’s conduct did not rise to the level of gross negligence.” (Mem.
Op. & Order [DN 233] 13.) The Court also found that the Plaintiffs “failed to offer clear and
convincing evidence that Crete was reckless,” (id. at 20), and that as a matter of law, “Crete
could not have anticipated . . . a pattern [of dangerous driving by Mr. Pope],” as there was “no
pattern of dangerous driving.” (Id. at 23.) In addition, based on Mr. Pope’s admission of liability
and Crete’s admission of respondeat superior liability, as well as the Court’s finding that punitive
damages are not warranted in this case, the Court found that its ruling reduced the issue to be
tried to “the amount of compensatory damages to which the Plaintiffs are entitled.” (Id. at 23.)
The Court explained that “the presentation of evidence at trial will be limited to the injuries that
the Plaintiffs sustained and the extent of those injuries. There will be no need for the Plaintiffs to
present evidence of any alleged negligent training or supervision.” (Id.)
The Court continued by noting that its conclusion was consistent with Kentucky law
because “while Kentucky courts have not directly addressed whether negligent training and
supervision claims survive in light of an admission of respondeat superior liability, several courts
have done so and have concluded that they do not.” (Id.) The Court then quoted Oaks v. Wiley
Sanders Truck Lines, Inc., which stated:
Under the doctrine of respondeat superior, an employer may be held vicariously
liable for the tortious conduct of an employee if the evidence shows that such
conduct was committed while the employee was acting within the scope of his
employment. The majority rule is that once an employer has admitted respondeat
superior liability for a driver’s negligence, it is improper to allow a plaintiff to
proceed against an employer on any other theory of imputed negligence.
Scroggins v. Yellow Freight Sys., Inc., 98 F. Supp. 2d 928, 931 fn.3 (E.D. Tenn.
2000) (applying Georgia law). Once an employer defendant has admitted liability
to plaintiff for its employee’s negligence, the evidence laboriously submitted to
establish the other theory of liability serves no purpose. The energy and time of

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courts and litigants is unnecessarily expanded. In addition, potentially
inflammatory evidence comes into the record which is irrelevant to any contested
issue in the case. Once vicarious liability for negligence is admitted under
respondeat superior, the person to whom the negligence is imputed becomes
strictly liable to the third party for damages attributable to the conduct of the
person from whom negligence is imputed. The liability of the employer is fixed
by the amount of liability of the employee.
Here, we have a case where the employer has admitted respondeat
superior liability so presentation of evidence to support the negligent hiring,
training, retention, supervision and entrustment claims is unnecessary. Allowing
the claim for negligent hiring, training, retention, supervision and entrustment to
continue would not entitle Plaintiff to greater recovery but would merely
prejudice Wiley Sanders. There is an exception to this rule when punitive
damages are contested, but no claim for punitive damages exists here, making this
exception irrelevant.
2008 WL 5459136, at *1 (E.D. Ky. Nov. 10, 2008). The Court stated that it “agreed with” Oaks.
It held that “[b]ecause Crete has admitted respondeat superior liability, and there is no longer a
punitive damages claim, the presentation of evidence to support the negligent training and
supervision claim is unnecessary.” (Mem. Op. & Order [DN 233] 24.)
The Plaintiffs have now moved the Court to “certify to the Kentucky Supreme Court the
question whether Plaintiffs’ causes of action against Crete for failure to train and supervise
Driver Pope are viable and distinct claims which Plaintiffs are entitled to try even though Crete
has admitted liability based on respondeat superior.” (Mot. to Certify [DN 238] 1.) In support of
their motion to certify, the Plaintiffs cite Allgeier v. MV Transportation, Inc., which was decided
by the Kentucky Court of Appeals in May of 2012. 2012 WL 1649089 (Ky. App. May 11, 2012)
[DN 245-2]. In that case, the Kentucky Court of Appeals rejected the rule that was applied in
Oaks and held that the plaintiff was entitled to try her negligent hiring and negligent training
claims against the defendant, despite the fact that the defendant admitted that it was vicariously
liable for the negligence of its employee. Id. [DN 245-2] at 21.

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The Plaintiffs argue that the Allgeier decision represents Kentucky’s opinion on the issue,
and that the Court violated the Erie doctrine by failing to consider Allgeier in its Memorandum
Opinion and Order. While the Plaintiffs have not expressly asked the Court to follow Allgeier,
they argue that the Court’s Memorandum Opinion and Order was in error, as it ignored
Allgeier’s ruling and relied on the incorrect assumption that Kentucky courts have failed to
address the issue of whether a plaintiff is entitled to try his or her failure to train and supervise
claims despite an employer’s admission of respondeat superior liability. In addition, the Plaintiffs
argue that although Allgeier is on appeal, the Court should choose certification so that the
present case can be resolved expeditiously. According to the Plaintiffs, if the Kentucky Supreme
Court answers that negligent training and supervision claims must be tried despite an admission
of respondeat superior liability, the Court should conduct a hearing “to determine whether, in
light of the ruling, Mr. Pope appreciates the ramifications of apportionment based on relative
fault between himself and Crete, and whether he still desires to stipulate that his conduct was the
sole cause of the wreck.” (Mem. Brief [DN 238-1] 5.)
II. DISCUSSION
Civil Rule 76.37(1) allows a district court to certify a question of law to the Kentucky
Supreme Court. It provides that:
If there are involved in any proceeding before . . . any District Court of the United
States . . . questions of law of this state which may be determinative of the cause
then pending before the originating court and as to which it appears to the party or
the originating court that there is no controlling precedent in the decisions of the
Supreme Court and the Court of Appeals of this state, the Kentucky Supreme
Court may answer those questions of law when certified to it by the originating
court, or after judgment in the District Court upon petition of any party to the
proceeding.
CR 76.37(1). In this case, the Plaintiffs urge the Court to certify a question. By doing so, they
essentially ask this Court to ask the Kentucky Supreme Court whether it will affirm Allgeier’s

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holding that a plaintiff is entitled to try negligent hiring and training claims against a defendant,
despite the fact that the defendant admits vicarious liability for its employee’s negligence.
As an initial matter, the Court acknowledges that it did not address Allgeier in its
Memorandum Opinion and Order. Put simply, the facts of Allgeier are distinct from, and
inapposite to, the facts here. The Court disagrees with the Plaintiffs’ suggestion that certification
is necessary to resolve this case. Nor is it necessary for the Court to “wait and see” how the
Kentucky Supreme Court rules on Allgeier before this case is tried.
In Allgeier, the Kentucky Court of Appeals held that a plaintiff was permitted to pursue
her claims of negligent hiring and training despite an employer’s admission of vicarious liability.
2012 WL 1649089 [DN 245-2] at 21. In so doing, the Court disagreed with the Oaks decision
and based its decision on the ground that “Kentucky law has recognized that a distinction exists
between the vicarious liability of an employer and the actual liability of that employer . . . .” Id.
Notably, in the Allgeier case, even though MV Transportation, Inc. admitted it was vicariously
liable for the negligence of its driver, it disputed that its driver was negligent. That left the
plaintiff with the burden of proving the liability aspect of her case in order to recover damages.
She wanted to assert two causes for the accident, one being the negligence of the driver and the
other being that MV Transportation, Inc. was negligent in hiring and training the driver. The
Kentucky Court of Appeals decided that she should be able to pursue both theories to prove
liability in her case.
In our case, however, the Plaintiffs do not need to prove any theory of liability in order to
recover damages because liability has been conceded. Mr. Pope has admitted that he was
negligent in causing the accident that gave rise to this action. He does not suggest that the
Plaintiffs were at fault in any way, shape, or form. Additionally, Crete has admitted respondeat

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superior liability, thereby accepting full responsibility for any damages caused by the subject
accident. In light of these admissions, it makes no difference if the Plaintiffs have one claim or
ten-thousand claims to support liability. All that remains in this case is the question of damages.
There will be no apportionment of fault whatsoever. Crete has agreed to pay 100% of the
Plaintiffs’ damages. As Mr. Pope and Crete note in their response, the Plaintiffs “can’t do any
better than 100%.” (Pope & Crete’s Resp. to the Mehergs’ Mot. to Certify [DN 242] 10.) Any
evidence related to any theory of liability is simply not relevant and a complete waste of time.
In this respect, the Court notes that the facts of this case are much more similar to Oaks
than Allgeier. In Oaks, as noted above, the district court indicated that “[o]nce an employer
defendant has admitted liability to [a] plaintiff for its employee’s negligence,” a claim for direct
liability “serves no purpose.” 2008 WL 5459136, at *1. In a prior opinion, the Oaks court ruled
that apportionment of fault was not at issue because the trucking company had admitted actual
liability for the subject accident. 2008 WL 4149635, at *2 (E.D. Ky. Sept. 4, 2008). These are
precisely the facts of the instant case. By contrast, in Allgeier, the employer and employee never
accepted actual liability. Instead, they denied liability, blamed the plaintiff for causing the
incident, and asked the jury to apportion fault to her. While it will be interesting to see what the
Kentucky Supreme Court decides in Allgeier, its holding does not impact this case.
III. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the Plaintiffs’ Motion to

Certify a Question of Law to the Kentucky Supreme Court [DN 238] is DENIED.

cc: counsel of record
April 14, 2014

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