Spigno v. Precision Pipeline, LLC et al

Filing 62

OPINION AND ORDER Denying Defendant's 43 Motion for Summary Judgment. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEFANO SPIGNO,
Plaintiff,

Case Number 14-10076
Honorable David M. Lawson

v.
PRECISION PIPELINE, LLC,
Defendant.
_______________________________/
OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
In this case, plaintiff Stefano Spigno has sued the driver of a truck and his employer for
damages caused by a rear-end motor vehicle collision. Spigno alleges that at the time of the
accident, the driver, Alan Gansch, was doing his employer’s bidding, and therefore the employer,
Precision Pipeline, LLC, is liable under the theory of respondeat superior. Before the Court is
Precision’s motion for summary judgment, in which it argues that the undisputed facts show that
Gansch was not on the job when the accident occurred. Precision contends, therefore, that it is
entitled to judgment as a matter of law on the respondeat superior claim. (Spigno also has a claim
under the Michigan Owner’s Liability statute, Mich. Comp. Laws § 257.401(1).) The Court heard
oral argument on February 2, 2015 and now concludes that fact questions prevent the resolution of
the claim on summary judgment. Therefore, the motion will be denied.
I.
The accident occurred on December 14, 2012. Gansch was driving a large Peterbilt truck
eastbound on Highland Road near Eager Road in Oceola Township, Michigan. Spigno was driving
in the same direction in front of Gansch’s truck. Gansch rear-ended Spigno’s car, causing him to

spin out and cross the center line into the path of an oncoming westbound car driven by Ann E.
Blaauw.

Spigno and Blaauw suffered serious injuries in the resulting collision, and both

subsequently sued Gansch and Precision for negligence. Blaauw settled her claims against all of the
defendants, and her case was dismissed. Spigno reached a settlement with Gansch only, and on
December 4, 2014, the claims in this case against Gansch individually were dismissed without
prejudice, upon the stipulation of the parties.
When not working out of state, Gansch resides in Pittsville, Wisconsin. He is a diesel engine
mechanic by trade, and he was hired by defendant Precision to work in that capacity. At the time
of the accident on December 14, 2012, Precision was his only employer. From August 2011 through
October 2012, Gansch worked for Precision at a job site in Waynesburg, Pennsylvania. In early
November, Gansch was reassigned to work at several Precision job sites in Michigan. While he was
working in Michigan, he lived temporarily at the Waldenwoods Campground in Oceola Township.
According to the daily time records of November 5, 2012 through December 14, 2012, Gansch
worked every day except the Sunday after Thanksgiving, seven days a week, an average of 13 hours
per day (approximately 90 hours per week). He testified that he was “on call” at all hours and had
to be ready any time that Precision might call for him to take his truck out and do repairs at a job
site.
Gansch was paid an hourly wage of $30.18 for his labor, plus $16 per hour “rig pay” or rent
for the use of the truck that he owned and brought with him to the job in Michigan. The truck was
large enough that Gansch needed a commercial driver license (CDL) to drive it. During the time
he worked for Precision in Michigan, the truck was not used for work purposes by or for any
employer other than Precision. Also during that time, Precision paid for fuel Gansch used while

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driving the truck, as well as regular maintenance including oil changes and replacing broken parts
like burned out lights. If parts such as brake linings wore out in the course of the assignment,
Precision would pay for replacements, unless the item was a major component such as an engine or
transmission.
On the day of the accident, Gansch started work at around 6:00 a.m., and he worked 13
hours. That morning, Gansch clocked in by reporting in person to his supervisor, Mike Wall, at the
Whitmore Lake jobsite, as he was required to each day. According to the police report, the accident
occurred at 5:46 p.m. Along with his own tools and equipment, Gansch also had certain items that
belonged to Precision on the truck at the time of the crash, such as “[m]iscellaneous parts . . . angle
irons, strap iron . . . some disc blades . . . and a hose.” Gansch testified that he was driving in the
direction of the Waldenwoods Campground on Eager Road, in Oceola Township, Michigan, when
the accident happened. But he could not recall whether he had any other scheduled stops for work
assignments after leaving his last job site prior to the accident, which also was located on Eager
Road. Gansch stated, however, that “Walden would be [his destination] eventually.” Gansch’s
supervisor also testified that he did not know if Gansch had any scheduled stops between leaving
the Eager Road job site and heading home.
The plaintiff filed his complaint on January 8, 2014, and an amended complaint on
November 11, 2014. Spigno alleged in his original complaint that Precision Pipeline was liable for
the injuries caused by Gansch’s driving because at the time of the accident he was an employee of
Precision acting within the scope of his employment. In the amended complaint, Spigno further
alleged that because Precision Pipeline had rented, or had exclusive use of, for a period of more than
30 days, the truck driven by defendant Gansch at the time of the accident, Precision Pipeline would

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be deemed an “owner” of the truck under Michigan law and therefore liable for Gansch’s
negligence. That theory of liability is not before the Court in the present motion.
II.
Summary judgment is appropriate “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).
As the Sixth Circuit has explained, when a summary judgment motion is filed, “[t]he court must
view the evidence and draw all reasonable inferences in favor of the non-moving party, and
determine ‘whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.’” Alexander v.
CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009) (Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)).
“The party bringing the summary judgment motion has the initial burden of informing the
district court of the basis for its motion and identifying portions of the record that demonstrate the
absence of a genuine dispute over material facts.” 576 F.3d at 558 (citing Mt. Lebanon Personal
Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs,
the party opposing the motion then may not ‘rely on the hope that the trier of fact will disbelieve the
movant’s denial of a disputed fact’ but must make an affirmative showing with proper evidence in
order to defeat the motion.” Id. (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th
Cir. 1989)).
“[T]he party opposing the summary judgment motion must do more than simply show that
there is some ‘metaphysical doubt as to the material facts.’” Highland Capital, Inc. v. Franklin
Nat’l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

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Corp., 475 U.S. 574, 586 (1986)) (internal quotation marks omitted). Instead, the responding party
must designate specific facts in affidavits, depositions, or other factual material showing “evidence
on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. If the
non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of
proof, summary judgment is clearly proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“Thus, the mere existence of a scintilla of evidence in support of the [opposing party]’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the [opposing
party].” 350 F.3d at 546 (quoting 477 U.S. at 252) (quotations omitted).
Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St.
Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). A fact is “material” if
its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d
574, 581 (6th Cir. 2001). “Materiality” is determined by the substantive law claim. Boyd v.
Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is “genuine” if a “reasonable jury could
return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d
1143, 1148 (6th Cir. 1994) (quoting 477 U.S. at 248).
In a defensive motion for summary judgment, the party who bears the burden of proof must
present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th
Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for
summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895
(6th Cir. 1991).
Precision concedes that there is a genuine issue of material fact on whether there was an
employer-employee relationship between Precision and Gansch during the time he worked in

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Michigan. Precision contends, however, that there can be no question that Gansch was on his way
home when the accident occurred, and therefore he was not acting within the course and scope of
his employment at that time. Citing Bush v. Parmenter, Forsythe, Rude & Dethmers, 413 Mich.
444, 320 N.W.2d 858 (1982), Precision insists therefore that it cannot be liable for Spigno’s
damages.
Precision relies primarily on a statement given to police by Gansch indicating that he had
“just finished work” and Gansch’s deposition testimony that he was on his way home, contending
that this testimony leaves no room for dispute about Gansch’s destination. Precision also cites
testimony by Gansch’s supervisor suggesting that Gansch was not “on call” and that he must not
have had any more stops after he left his last job site, because otherwise Wall would have spoken
with him by phone about where he was going next.
Precision believes strong parallels can be found with Bowman v. R.L. Coolsaet, 477 Mich.
976, 725 N.W.2d 55 (2006), in which the court held that an employee working under similar
circumstances was not entitled to workers compensation for injuries he suffered in an accident that
occurred while he was driving his truck home to his temporary residence after his job site was forced
to close by heavy rains. Like Gansch, Bowman also was paid for the use of his truck for work, and
like Gansch he also was living at a temporary residence near his Michigan job site.
On the law, Precision is mostly correct. Under Michigan law, “[a]n employer is generally
liable for the torts its employees commit within the scope of their employment.” Hamed v. Wayne
Cnty., 490 Mich. 1, 10-11, 803 N.W.2d 237, 244 (2011). “It follows that ‘an employer is not liable
for the torts . . . committed by an employee when those torts are beyond the scope of the employer's
business.’” Id. at 11 (quoting Zsigo v. Hurley Med. Ctr., 475 Mich. 215, 221, 716 N.W.2d 220, 223

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(2006)). The Michigan Supreme Court has “defined ‘within the scope of employment’ to mean
‘engaged in the service of his master, or while about his master’s business.’” Ibid. (quoting Barnes
v. Mitchell, 341 Mich. 7, 13, 67 N.W.2d 208, 210 (1954)) (quotations marks omitted). “Although
an act may be contrary to an employer’s instructions, liability will nonetheless attach if the employee
accomplished the act in furtherance, or the interest, of the employer’s business.” Ibid.
But “[i]ndependent action, intended solely to further the employee’s individual interests,
cannot be fairly characterized as falling within the scope of employment.” Ibid. “While the issue
of whether the employee was acting within the scope of his employment is generally for the trier of
fact, the issue may be decided as a matter of law where it is clear that the employee was acting to
accomplish some purpose of his own.” Bryant v. Brannen, 180 Mich. App. 87, 98, 446 N.W.2d 847,
853 (1989). Precision contends that this is such a case, because, “[g]enerally, an employee is not
acting within the scope of his or her employment when traveling to and from work.” Daniels v.
Petrosky-Clark, 488 Mich. 864, 788 N.W.2d 411, 412 (2010) (citing Thomas v. Certified
Refrigeration, Inc., 392 Mich. 623, 631 n.3, 221 N.W.2d 378, 382 (1974)).
Although Precision correctly recites the general rule that an employer is not liable for the
negligent driving of an employee going to or from work, it fails to address — or even mention in
its brief — the six exceptions to that general rule, five of which could apply in the circumstances
of this case. As the Michigan Supreme Court observed, the general “rule is riddled with exceptions
including situations where (1) the employee is on a special mission for the employer; (2) the
employer derived a special benefit from the employee’s activity at the time of the injury; (3) the
employer paid for or furnished employee transportation as a part of the contract of employment; (4)
the travel comprised a dual purpose combining the employment-required business needs with the

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personal activity of the employee; (5) the employment subjected the employee to ‘excessive
exposure to the common risk’ such as traffic risks faced by a truck rider deadheading to his rig; and
(6) the travel took place as a result of a split shift working schedule, or employment requiring a
similar irregular nonfixed working schedule.” Bush v. Parmenter, Forsythe, Rude & Dethmers, 413
Mich. 444, 452 n.6, 320 N.W.2d 858, 862 n.6 (1982) (citations omitted).
Evidence that an employee ultimately intends to arrive at home does not preclude a finding
that he was acting within the scope of his employment, if he intended to make a necessary and workrelated stop on the way. For instance, in Kester v. Mattis, Inc., 44 Mich. App. 22, 204 N.W.2d 741
(1972), the Michigan Court of Appeals found that the defendant’s employee was acting within the
scope of employment where he intended to drop off money from the day’s receipts at the gas station
where he worked at the home of the station manager, before heading to his own home. 44 Mich.
App. at 23-24, 204 N.W.2d at 742.
Moreover, evidence that at the time of an accident the employee “had in his care or custody
any of his master’s property requiring his attention and oversight” may support a finding that he was
acting within the scope of his employment. Broderick v. Detroit Union R. Station & Depot Co., 56
Mich. 261, 268, 22 N.W. 802, 805 (1885). In Bajdek v. Toren, 382 Mich. 151, 169 N.W.2d 306
(1969), the Michigan Supreme Court found that a professional photographer was acting within the
scope of his employment while driving home from a photo shoot, in part because he had in the trunk
of his car camera equipment owned by his employer, which he meant to store for safekeeping at his
home overnight and then return to his employer’s place of business on his next regular work day.
382 Mich. at 153, 169 N.W.2d at 307. The court concluded that whether the employee “was acting
within the scope of his employment [was] a question of fact for the jury,” despite countervailing

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testimony by the employee that “he was at the time ‘all through work’, ‘was on his own’, [and] ‘was
going home from a job.’” Id. at 154, 169 N.W.2d at 308.
In this case, the record evidence suggests two bases for a jury reasonably to conclude that
Precision is liable: (1) the essential premise of the general rule is not satisfied, since Gansch may
not have been headed directly home; and (2) some of the exceptions to the general rule apply to
render the rule inapplicable. That gives rise to several potential fact disputes that must be deemed
material.
First, contrary to Precision’s position, the record does not establish indisputably that Gansch
was headed directly to his temporary home when he left his last work site. Certain testimony
highlighted by Precision may tend to suggest that Gansch had no other stops, but the fact that
Gansch was on the clock at the time of the accident and was paid both an hourly wage and rent for
his truck covering the time when the accident happened suggests otherwise. Moreover, both Gansch
and Wall testified that they could not recall whether Gansch had any other work-related stops to
make before his “eventual” return home. Although lack of recollection is not positive proof, when
coupled with the payroll and rental records, a jury reasonably could conclude that the “commuter”
rule does not apply because Gansch was not headed directly home at the time of the accident.
Otherwise, why would Precision pay Gansch for his time unless he was driving his truck somewhere
at its direction and for some work-related purpose? The jury also could conclude that an exception
to the rule applies because, even if Gansch was headed home, the trip must have involved some
“special mission” in furtherance of his employment.
Second, Precision “derived a special benefit from the employee’s activity at the time of the
injury,” because Gansch testified that he had on his truck a number of items of equipment owned

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by Precision, which he presumably intended to transport to his home for safekeeping, until they were
returned or used the next day. See Bajdek, 382 Mich. at 153, 169 N.W.2d at 307; Broderick, 56
Mich. at 268, 22 N.W. at 805 (1885).
Third, in the alternative, and for the same reason, Gansch’s trip from his last job site to his
temporary home could have “comprised a dual purpose combining the employment-required
business needs with the personal activity of the employee.” Bush, 413 Mich. at 452 n.6, 320 N.W.2d
at 862 n.6.
Fourth, Precision “paid for or furnished employee transportation as a part of the contract of
employment,” ibid., not only by paying hourly rent for the use of Gansch’s truck — including
payments covering the time when the accident occurred — but also by paying for or supplying fuel,
parts, and routine maintenance services during the entire time Gansch used the truck to do work for
Precision in Michigan.
Finally, as Spigno correctly points out, this was no ordinary case of a commuting employee
making a routine drive in his personal automobile to and from his workplace. Gansch was a licensed
commercial truck driver operating a large, heavy vehicle, loaded with tools and equipment. He was
hired by Precision and paid both to supply the truck and to drive it to various work sites in Michigan
to transport himself as a mechanic and all the tools of his trade wherever they were needed.
Precision paid Gansch an hourly wage and rent for the truck covering the time at which the accident
occurred. And, as his employment records show, in the weeks leading up to the accident, Precision
required that Gansch work up to 13 hours per day, seven days per week, driving his truck between
job sites and doing mechanical work, from the early morning, sometimes until late in the evening.
His employment by Precision therefore subjected Gansch — and other motorists such as the plaintiff

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— to an “excessive exposure to the common risk,” resulting from a demanding work schedule and
the long hours that Gansch was paid to work and drive.
Too many fact questions stand as obstacles to a judgment as a matter of law on this theory
of liability.
III.
The defendant has not carried its burden of establishing that there are no genuine issues of
material fact. Precision is not entitled to summary judgment.
Accordingly, it is ORDERED that the defendant’s motion for summary judgment [dkt. #43]
is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: February 9, 2015

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on February 9, 2015.
s/Susan Pinkowski
SUSAN PINKOWSKI

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