Cameron v. Werner Enterprises, Inc. et al

Filing 160

MEMORANDUM OPINION AND ORDER granting 116 Motion for Partial Summary Judgment. Certain claims of plaintiff are dismissed with prejudice, as set forth in the Order. (This Order replaces the Order previouly filed as Document #159) Signed by District Judge Keith Starrett on 7/15/2015 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ANGELA CAMERON, AS THE
ADMINISTRATRIX OF THE ESTATE OF
ANTHONY CAMERON, DECEASED, FOR
AND ON BEHALF OF HERSELF, AND ON
BEHALF OF ALL OTHER PARTIES
ENTITLED TO RECOVER FOR THE
WRONGFUL DEATH OF ANTHONY
CAMERON
V.

PLAINTIFFS
CIVIL ACTION NO. 2:13cv243-KS-JCG

WERNER ENTERPRISES, INC., A FOREIGN
CORPORATION, AND TERRY J. GUILLORY,
AN INDIVIDUAL

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Partial Summary Judgment
[116] of the Defendants Werner Enterprises, Inc. (“Werner”) and Terry J. Guillory
(“Guillory”). Having considered the submissions of the parties, the record, and the
applicable law, the Court finds that the motion should be granted.
I. BACKGROUND
This wrongful death action arises out of a commercial vehicle accident that
occurred on December 3, 2012, in Perry County, Mississippi. The Uniform Crash
Report [116-1] indicates that the accident occurred at approximately 4:00 a.m. in heavy
fog. The decedent, Anthony Cameron (“Cameron”), was the driver of one of the
vehicles involved in the accident. Guillory was the driver of the other vehicle. Cameron
was driving his tractor-trailer east on U.S. Highway 98, when it collided with Guillory’s
tractor-trailer. Guillory was attempting to cross the eastbound lanes of the highway in
order to turn left onto the westbound lanes at the time of the collision. Cameron was

killed in the accident. Guillory was acting within the course and scope of his
employment with Werner at the time of the incident.
On November 1, 2013, Angela Cameron (as the Administratrix of the Estate of
Anthony Cameron, on behalf of herself, and on behalf of all other parties entitled to
recover for the wrongful death of Anthony Cameron) filed suit against Werner and
Guillory in this Court. (See Compl. [1].) Angela Cameron was Anthony Cameron’s wife
at the time of his death. The Complaint asserts allegations of negligence and gross
negligence, and requests compensatory damages, punitive damages, interest,
attorney’s fees, and costs. Subject matter jurisdiction is asserted on the basis of
diversity of citizenship pursuant to Title 28 U.S.C. § 1332.
By way of the subject motion, Defendants seek summary judgment on the
Plaintiff’s direct negligence claims against Werner and the Plaintiff’s demand for punitive
damages as to both Defendants. The motion has been fully briefed and the Court is
ready to rule.
II. DISCUSSION
A.

Standard of Review

Federal Rule of Civil Procedure 56 provides that “[t]he 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).
“Where the burden of production at trial ultimately rests on the nonmovant, the movant
must merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (citation and internal quotation marks omitted). The nonmovant must then “come
-2-

forward with specific facts showing that there is a genuine issue for trial.” Id. “An issue
is material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v.
Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels
v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Cuadra, 626 F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inferences to
be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v.
Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is
mandatory “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d
759, 766 (5th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986)).
B.

Analysis
1.

Direct Negligence Claims Against Werner

The Complaint [1] charges Werner with negligent entrustment, hiring, training,
-3-

supervision, and retention. Plaintiff’s opposition to summary judgment describes three
bases for her allegations of direct negligence against Werner: (i) Werner negligently
and/or recklessly failed to properly train Guillory; (ii) Werner was negligent and/or
reckless in allowing its drivers to decide whether to drive under certain weather
conditions and in not utilizing a Qualcomm message system to alert its drivers of
weather problems; and (iii) Werner was negligent or reckless in utilizing a pay structure
that incentives the accumulation of mileage. The Court finds that Werner is entitled to
summary judgment on each of these allegations.
First, district courts for both the Northern and Southern Districts of Mississippi
regularly dismiss direct negligence claims when an employer admits vicariously liability.1
Both Werner and Guillory have admitted that “Guillory was acting in the line and scope

1

See, e.g., Littlejohn v. Werner Enters., Inc., No. 1:14cv44, 2015 WL 3868092, at *2
(N.D. Miss. June 23, 2015) (granting the defendant employer summary judgment on
claims for negligent hiring, training, and supervision given the stipulation that the
defendant employee was acting within the course and scope of his employment);
Coleman v. Swift Transp. Co. of Ariz., LLC, No. 3:13cv3, 2014 WL 3533322, at *5 (N.D.
Miss. July 16, 2014) (“Although the Mississippi Supreme Court has not yet addressed
whether a plaintiff can pursue negligent supervision claims against an employer who
has admitted vicarious liability, the federal district courts in this state predict that it would
‘find summary judgment on a claim of negligent entrustment appropriate where
vicarious liability is not disputed.’”); Lee v. Harold David Story, Inc., No. 3:09cv696,
2011 WL 3047500, at *1 & n.1 (S.D. Miss. July 25, 2011) (citing numerous opinions
supporting the defendant employer’s argument that the plaintiff’s direct liability claims
were redundant and due to be dismissed since this defendant admitted it was
vicariously liable for its employee’s negligence); Booker v. Hadley, No. 2:08cv172, 2009
WL 2225411, at *2 (S.D. Miss. July 23, 2009) (finding it appropriate under Mississippi
law “to dismiss all claims of negligent entrustment and the like when the defendant
concedes liability under respondeat superior”); cf. Nehi Bottling Co. of Ellisville v.
Jefferson, 226 Miss. 586, 84 So. 2d 684, 686 (Miss. 1956) (holding that the trial court
erred in allowing the plaintiff to present evidence regarding other accidents involving the
defendant driver since the defendants admitted that the driver was acting within the
scope of his employment at the time of the accident).
-4-

of his employment . . . with Werner” at the time of the accident. (Compare Compl. [1] at
¶ 12, with Answer [6] at ¶ 12, and Answer [16] at ¶ 12.) Further, “Werner has admitted
it would be vicariously liable for the negligence, if any, of its employee . . . .” (Defs.’
Reply to Resp. to Mot. for Part. SJ [128] at p. 4.) Therefore, all of the Plaintiff’s
negligence allegations directly asserted against Werner are “redundant and due to be
dismissed.” Littlejohn, 2015 WL 3868092, at *2 (citations omitted).
Second, Plaintiff’s allegation that Werner failed to properly train Guillory suffers
from an absence of proof. A claim of negligent training or supervision is simply a
negligence claim, requiring a showing of duty, breach, causation, and damages. See,
e.g., Cuevas v. T & J’s Last Minute Seafood Express, 1:10cv104, 2011 WL 1898919, at
*3 (S.D. Miss. May 13, 2011); Roman Catholic Diocese of Jackson v. Morrison, 905 So.
2d 1213, 1229 (¶ 45) (Miss. 2005). Werner’s Rule 30(b)(6) representative testified at
deposition that Werner’s drivers receive training regarding various safety topics,
including speed and space management, hazard awareness, fatigue management,
hours of service, pre-trip inspection, and drugs and alcohol. (See Werner 30(b)(6) Dep.
[127-2] 28:1-25.) Plaintiff fails to evidence the inadequacy of this training or otherwise
show how Werner’s training could be considered a breach of any duty. Instead, Plaintiff
argues a jury issue exists because Werner’s Rule 30(b)(6) representative also testified
that drivers are allowed to use their judgment on whether to drive in foggy conditions,
and stated as follows regarding the meaning of “reckless”: “Just that the driver didn’t
take all necessary steps to drive in a safe manner.” (Werner 30(b)(6) Dep. [127-2]
44:13-17, 47:2-23.) It is not evident to the Court how these facts give rise to any
genuine issue precluding a grant of summary judgment on Plaintiff’s negligent training
-5-

allegation. Thus, Plaintiff has merely offered “improbable inferences” and “legalistic
argumentation,” which are insufficient to avoid summary judgment. Oliver, 276 F.3d at
744.
Third, Plaintiff has failed to cite any legal authority supporting her contention that
Werner had a duty to send its drivers Qualcomm messages regarding weather
conditions,2 or that Werner could be considered negligent for using a payment system
based on the accumulation of mileage. In a diversity action, this Court’s task is to apply
Mississippi law and not to create or adopt innovate theories of recovery. See Allstate
Ins. Co. v. Receivable Fin. Co., 501 F.3d 398, 411 (5th Cir. 2007) (“We have long
followed the principle that we will not create innovative theories of recovery or defense
under local law, but will rather merely apply it as it currently stands.”) (citation omitted);
Janus v. BellSouth Telecomms., Inc., 48 F.3d 532, 1995 WL 84545, at *2 (5th Cir. 1995)
(rejecting the plaintiffs’ negligence claim that depended upon a legal duty not yet
recognized by Mississippi’s highest court). The Court declines to contravene this well
established principle and deny summary judgment based on Plaintiff’s novel,
unsupported arguments. All of the Plaintiff’s allegations of direct negligence against
Werner will be dismissed for the above-stated reasons.
2.

Punitive Damages As to Werner

By statute, punitive damages are unavailable “if the claimant does not prove by

2

The parties’ summary judgment briefs do not present the allegation that Guillory
was unable to utilize his senses and determine the weather on his own accord. Thus,
the Court is unable to discern how Werner’s failure to send Guillory a message
regarding weather conditions could be rationally construed as the proximate cause of
the accident.
-6-

clear and convincing evidence that the defendant against whom punitive damages are
sought acted with actual malice, gross negligence which evidences a willful, wanton or
reckless disregard for the safety of others, or committed actual fraud.” Miss. Code Ann.
§ 11-1-65(1)(a). The trial judge is to consider “the totality of the circumstances . . . in
light of defendant’s aggregate conduct” in deciding whether to submit the issue of
punitive damages to the jury. Causey v. Sanders, 998 So. 2d 393, 408 (¶ 48) (Miss
2008) (citation omitted). Punitive damages are disfavored, considered an extraordinary
remedy, and allowed only “with caution and within narrow limits” under Mississippi law.
Ill. Cent. R.R. Co. v. Young, 120 So. 3d 992, 1013-14 (¶ 62) (Miss. Ct. App. 2012)
(quoting Waren v. Derivaux, 996 So. 2d 729, 738 (¶ 27) (Miss. 2008)). The Mississippi
Supreme Court has been extremely reluctant to allow punitive damages in cases
involving mere traffic violations. See Dawson v. Burnette, 650 F. Supp. 2d 583, 585
(S.D. Miss. 2009) (citation omitted).
Plaintiff presents no evidence, much less clear and convincing proof, from which
“a reasonable, hypothetical juror could . . . identif[y] either malice or gross disregard to
the rights of others” on the part of Werner. Causey, 998 So. 2d at 408 (¶ 48). Plaintiff
merely places the term “reckless” or “gross” in front of the above-discussed allegations
of negligence. This is clearly insufficient to allow Plaintiff’s punitive damages claim to
proceed past the summary judgment stage. See Oliver, 276 F.3d at 744.
Moreover, the Court rejects the Plaintiff’s contention that Werner can be held
liable for punitive damages based on the acts or omissions of Guillory. Mississippi’s
punitive damages statute focuses on the acts of “the defendant against whom punitive
damages are sought . . . .” Miss. Code Ann. § 11-1-65(1)(a). The clear weight of
-7-

authority has interpreted this statutory text to preclude an award of punitive damages
based on a theory of vicarious liability.3 Plaintiff fails to cite any court opinion approving
of an award of punitive damages against an employer solely due to its employee’s
tortious conduct under section 11-1-65. Therefore, summary judgment will be granted
in favor of Werner on Plaintiff’s claim for punitive damages.
3.

Punitive Damages As to Guillory

Plaintiff focuses on the following circumstances in support of her argument that a
reasonable jury could find that Guillory’s acts or omissions constituted gross negligence
or a reckless disregard for the safety of others, justifying an award of punitive damages.
Trooper Gregory Barfield, the officer that investigated the incident, testified at deposition
that “[i]t was very, very, very foggy” on the morning of the accident. (Barfield Dep. [1275] 9:14-20.) Guillory testified at deposition that his tractor-trailer was approximately 72
feet long, and that it could have taken as long as 12 seconds for it to clear the
eastbound lanes of Highway 98. (See Guillory Dep. [127-4] 37:13-16, 46:5-47:7.) Once
Guillory started to cross the highway, he focused on the westbound lanes, the opposite
direction from which Cameron was traveling. (See Guillory Dep. [127-4] 32:12-16.)
Guillory testified that it would be reckless for a driver to cross a roadway in fog so heavy
that it prevented him from seeing. (See Guillory Dep. [127-4] 97:22-25.)
The Court finds the following particulars from Guillory’s deposition also relevant
3

See, e.g., Bass v. Hirschbach Motor Lines, Inc., No. 3:14cv360, 2014 WL 5107594,
at *3 (S.D. Miss. Oct. 10, 2014); Dinger v. Am. Zurich Ins. Co., No. 3:13cv46, 2014 WL
580889, at *4 (N.D. Miss. Feb. 13, 2014); Lee, 2011 WL 3047500, at *2 & n.2; Poe v.
Ash Haulers, Inc., No. 1:10cv234, 2011 WL 2711283, at *5 n.2 (N.D. Miss. July 12,
2011); Dawson, 650 F. Supp. 2d at 586 n.1; Decanter v. Builders Transp., Inc., No.
3:95cv134, 1996 WL 408844, at *2 (N.D. Miss. July 11, 1996).
-8-

in considering “the totality of the circumstances” regarding the “defendant’s aggregate
conduct.” Causey, 998 So. 2d at 408 (¶ 48). Before Guillory started to cross the
highway, he waited for vehicles to pass him twice in order to get a fair estimation of the
time he needed to complete his maneuver. (See Guillory Dep. [127-4] 12:8-14.)
Guillory looked both to the left and right for oncoming traffic more than one time before
proceeding to cross the highway. (See Guillory Dep. [127-4] 17:18-19:8.) The fog did
not cause any visibility problems that prevented Guillory from safely crossing the
highway. (See Guillory Dep. [127-4] 29:15-18.) Guillory started to cross the highway
after he “saw that there was no traffic coming in either direction . . . .” (Guillory Dep.
[127-4] 32:1-4.) Once Guillory “was somewhere in the median,” he saw a flash of lights
to his left “and that’s when . . . [he] was hit.” (Guillory Dep. [127-4] 32:5-9.)
Viewing the totality of the above-discussed evidence in the Plaintiff’s favor, the
Court only finds fact issues regarding simple negligence. There is no clear and
convincing evidence suggesting that Guillory acted with “a reckless indifference to
consequences without the exertion of any substantial effort to avoid them.” Cone
Solvents, Inc. v. Corvin, No. 1:05cv419, 2007 WL 628501, at *2 (S.D. Miss. Feb. 24,
2007) (quoting Ezell v. BellSouth Telecomms., Inc., 961 F. Supp. 149, 152 (S.D. Miss.
1997)). In essence, Plaintiff faults Guillory for failing to keep a proper lookout for
oncoming traffic as he crossed Highway 98. Several courts have found analogous facts
to constitute ordinary negligence, resulting in the dismissal of claims for punitive
damages.4 Plaintiff has failed to show any aggravating circumstances, such as
4

See, e.g., Poe, 2011 WL 2711283, at *5 (granting the defendants’ request for
summary judgment on a claim for punitive damages since the defendant driver’s
-9-

Guillory’s intoxication or use of a cell phone at the time of the accident, which could
allow the issue of punitive damages to proceed to trial. Cf. Barnes v. Carpenter, No.
2:14cv144, 2014 WL 6068943, at *1 (S.D. Miss. Nov. 13, 2014) (denying the
defendants’ motion to dismiss the plaintiff’s punitive damages claim since the complaint
gave rise to the plausible inference that the defendant driver was intoxicated at the time
of the subject accident); Gaddis v. Hegler, No. 3:10cv249, 2011 WL 2111801, at *4-5
(S.D. Miss. May 26, 2011) (denying summary judgment on the issue of punitive
damages in part because the evidence suggested the defendant ran a red light and
ignored other warning signs while she was using a cell phone). Thus, summary
judgment will also be granted in favor of Guillory on the Plaintiff’s punitive damages
claim.
III. CONCLUSION
There is no genuine issue as to any material fact precluding a grant of partial
summary judgment in the Defendants’ favor.
IT IS THEREFORE ORDERED AND ADJUDGED that the Defendants’ Motion for

conduct amounted “only to alleged simple negligence in failing to exercise due care in
the operation of a vehicle”); Dawson, 650 F. Supp. 2d at 584, 587 (dismissing the
plaintiff’s claim for punitive damages based on the allegation that the defendant failed to
keep a proper lookout for other vehicles as he executed a U-turn); Francois v. Colonial
Freight Sys., Inc., No. 3:06cv434, 2007 WL 4459073, at *5 (S.D. Miss. Dec. 14, 2007)
(holding that the defendant’s alleged failure to maintain a proper lookout did not rise to
the level of conduct necessary to support an award of punitive damages); Harris v. MVT
Servs., Inc., No. 1:06cv251, 2007 WL 2609780, at *1, 3 (S.D. Miss. Sept. 5, 2007)
(finding the defendant entitled to summary judgment on the plaintiff’s punitive damages
claim where the driver of a tractor-trailer pulled into the path of the plaintiff’s motor
vehicle); Mayfield v. Johnson, 202 So. 2d 630, 631 (Miss. 1967) (holding that an award
of punitive damages was improper although there was “no doubt that the appellee did
not keep a proper lookout and have his car under control so as to avoid striking the rear
end of appellant’s station wagon”).
-10-

Partial Summary Judgment [116] is granted and the following of the Plaintiff’s claims are
dismissed with prejudice: (1) all of the Plaintiff’s claims of direct negligence against
Defendant Werner Enterprises, Inc.; and (2) all of the Plaintiff’s claims of gross
negligence in support of her request for punitive damages against Werner Enterprises,
Inc. and Defendant Terry J. Guillory. Plaintiff’s negligence claims against Terry J.
Guillory and assertion of vicarious liability against Werner Enterprises, Inc. based on
those claims remain pending for trial.
SO ORDERED AND ADJUDGED this the 15th day of July, 2015.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

-11-