Kozlov v. Associated Wholesale Grocers, Inc. et al

Filing 241

MEMORANDUM AND ORDER - Kozlov and Albatross's Motion for Partial Summary Judgment (Case No. 4:10-cv-3211, Filing No. 218) is denied. Member Cases: 4:10-cv-03211-LSC-FG3, 4:10-cv-03212-LSC-FG3, 8:10-cv-03191-LSC-FG3Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IGOR KOZLOV,

MEMORANDUM
AND ORDER
Plaintiff,

vs.

CASE NO. 4:10CV3211

ASSOCIATED WHOLESALE GROCERS, INC.,
A Kansas Corporation; PAMELA SCOTT,
Personal Representative of the Estate of
Michael E. Scott, Deceased; ROADTEX
TRANSPORTATION CORP; ROADTEX CORP BAYONNE, NJ; ROADTEX CORP - COLTS
NECK, NJ; ROADTEX LOGISTICS, LLC; and
ROADTEX TRANSPORTATION MANAGEMENT
CORP;
Defendants.
ANDREI TCHIKOBAVA,

IGOR
CASE NO. 4: 10CV3212

Plaintiff,
vs.
ASSOCIATED WHOLESALE GROCERS, INC.,
A Kansas Corporation; PAMELA SCOTT,
Personal Representative of the Estate of
Michael E. Scott, Deceased; ALBATROSS
EXPRESS, LLC; ROADTEX TRANSPORTATION
CORP; ROADTEX CORP - BAYONNE, NJ;
ROADTEX CORP - COLTS NECK, NJ;
ROADTEX LOGISTICS, LLC; and ROADTEX
TRANSPORTATION MANAGEMENT CORP;
Defendants.
PAMELA SCOTT, Personal Representative of
the Estate of Michael E. Scott, Deceased,
Plaintiff,
IGOR KOZLOV; ALBATROSS EXPRESS, LLC;
UNICK, LLC; ROADTEX TRANSPORTATION
CORP; ROADTEX CORP - BAYONNE, NJ;
ROADTEX CORP - COLTS NECK, NJ;
ROADTEX LOGISTICS, LLC; and ROADTEX
TRANSPORTATION MANAGEMENT CORP;
Defendants.

CASE NO. 8: 10CV3191

This matter is before the Court on the Motion for Partial Summary Judgment
(“Motion”) (Case No. 4:10-cv-3211, Filing No. 218) filed by Igor Kozlov (“Kozlov”) and
Albatross Express, LLC (“Albatross”) against Associated Wholesale Grocers (“AWG”).
For the reasons discussed below, the Motion will be denied.
BACKGROUND
These consolidated civil cases arise out of a motor-vehicle accident (the
“Accident”) involving a tractor trailer driven by Michael E. Scott (“Scott”), deceased, and
a tractor trailer driven by Kozlov. The Motion was filed in the lead case, 4:10-cv-3211.
AWG filed a claim1 against Kozlov and Albatross seeking damages for injuries allegedly
resulting from the Accident. AWG alleges that at all relevant times (1) Kozlov was an
employee of Albatross; (2) Kozlov was acting in the ordinary course of his employment,
as an agent, servant, or employee of Albatross; and (3) Kozlov was operating the
tractor-trailer with the permission and knowledge of Albatross. Albatross admits each of
these allegations.
As part of this consolidated action, Kozlov, Andrei Tchikobava (“Tchikobava”),
and Albatross all have asserted claims against AWG seeking damages for injuries
resulting from the Accident. Kozlov, Tchikobava, and Albatross have all alleged that, at
all relevant times AWG’s driver, Scott, was employed by AWG and operating a tractor
trailer within the scope and course of his employment. AWG admits that Scott was
acting within the course and scope of his employment with AWG at the time of the
Accident.
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In its Answer and Counterclaim (Filing No. 13), AWG labeled its claims against Kozlov
and Albatross as a counterclaim. At the time AWG filed its Answer and Counterclaim, Albatross
was not a party to the action, 4:10-cv-3211. Pursuant to Fed. R. Civ. P. 14, Albatross is more
accurately defined as a Third-Party Defendant rather than a Counterclaim Defendant.

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On February 3, 2014, Kozlov and Albatross filed their Motion, requesting that the
Court “dismiss any claims of direct liability against Albatross for negligent hiring,
entrusting, or training, or any claims arising from violation of federal regulations.”2
(Motion at ¶ 6.) Kozlov and Albatross further request that the Court “declare that AWG
may only proceed on its claim of vicarious liability.” (Id.) Kozlov and Albatross base their
requests for relief on the grounds that Albatross admits and acknowledges it is
vicariously liable for any negligent acts of Kozlov.
In their “counterclaim,” AWG and Scott present three separate counts which are
captioned:
Count I:

Defendant/Counterclaimant Pamela Scott’s Wrongful Death Claim
Against Plaintiff Igor Kozlov

Count II:

Defendant/Counterclaimant Pamela Scott’s Negligence Claim
Against Plaintiff Igor Kozlov

Count III:

Defendant Associated Wholesale Grocers’ Counterclaim Against
Plaintiff Igor Kozlov.

(Filing No. 13 at ECF 1-8.)
While these captions do not identify a claim made by AWG against Albatross,
they are subheadings under the heading “Counterclaim Against Plaintiff Igor Kozlov and
Albatross Express, LLC: General Allegations.” (Id. at ECF 3.) In substance, Count III
actually contains claims against both Kozlov and Albatross for damages sustained as a

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Albatross and Kozlov are both asking the Court to dismiss claims against Albatross.
However, because Kozlov is not a party to the claims for which he seeks dismissal, there is no
case or controversy with respect to Kozlov and he does not have standing to seek dismissal of
those claims. See Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 933 (8th Cir. 2012).

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result of the Accident. (Id.) In Count III, AWG asserts claims against Albatross based
on several theories of liability.
SUMMARY JUDGMENT STANDARD OF REVIEW
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Gage v. HSM
Elec. Prot. Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)).
The court will view “all facts in the light most favorable to the nonmoving party and
mak[e] all reasonable inferences in [that party’s] favor.” Schmidt v. Des Moines Pub.
Sch., 655 F.3d 811, 819 (8th Cir. 2011). “[W]here the nonmoving party will bear the
burden of proof at a trial on a dispositive issue . . . Rule 56(e) permits proper summary
judgment motion to be opposed by any kind of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). The moving party need not negate the nonmoving party’s claims by showing
“the absence of a genuine issue of material fact.” Id. at 325. Instead, “the burden of the
moving party may be discharged by ‘showing’ . . . that there is an absence of evidence
to support the nonmoving party’s case.” Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim
should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.
2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). The nonmoving party “‘must do more than simply show that there is some
metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts
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showing that there is a genuine issue for trial.’” Torgeson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (quoting Matsushita, 475 U.S. at 586–87)), cert. denied, 132
S. Ct. 513 (2011). “‘[T]he mere existence of some alleged factual dispute between the
parties’” will not defeat an otherwise properly supported motion for summary judgment.
Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986)).
In other words, in deciding “a motion for summary judgment, ‘facts must be
viewed in a light most favorable to the nonmoving party only if there is a “genuine”
dispute as to those facts.’” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott
v. Harris, 550 U.S. 372, 380 (2007)). Otherwise, where the court finds that “the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party”—
where there is no “‘genuine issue for trial’” —summary judgment is appropriate.
Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 289 (1968)).
DISCUSSION
Sitting in diversity, this Court must “apply state substantive law and federal
procedural law.” Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559
U.S. 393, 437 (2010) (quoting Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427
(1996)) (internal quotation marks omitted). “As a federal court, [the court’s] role in
diversity cases is to interpret state law, not to fashion it.” Kingman v. Dillard's, Inc., 643
F.3d 607, 615 (8th Cir. 2011) (quoting Orion Fin. Corp. of S.D. v. Am. Foods Grp., Inc.,
281 F.3d 733, 738 (8th Cir.2002) (internal quotation marks omitted). “[A] federal district
court sitting in Nebraska must follow Nebraska's conflict of laws rules.”
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Modern

Computer Sys., Inc. v. Modern Banking Sys., Inc., 858 F.2d 1339, 1342 (8th Cir. 1988)
(citing Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941)).
Nebraska has adopted Restatement (Second) of Conflicts of Law § 146 (1971) 3
which provides:
In an action for a personal injury, the local law of the state where the injury
occurred determines the rights and liabilities of the parties, unless, with
respect to the particular issue, some other state has a more significant
relationship under the principles stated in § 6 to the occurrence and the
parties, in which event the local law of the other state will be applied.

In this case, the Accident and the alleged injuries occurred in Nebraska, and the
Court must apply Nebraska law.
A plaintiff in a civil case may assert a number of causes of action against a
tortfeasor or other responsible party potentially liable for his injury. Nebraska courts
apply the doctrine of respondeat superior which holds an employer “vicariously liable for
the negligent acts of an employee committed while the employee was acting within the
scope of the employer's business.” Kocsis v. Harrison, 543 N.W.2d 164, 168 (Neb.
1996). Under Nebraska law, employers also may be liable for the acts of an employee
under a direct negligence theory if the employer was negligent in hiring, supervising, or
training an employee. See Kime v. Hobbs, 562 N.W.2d 705, 713 (Neb. 1997).
AWG has alleged that Albatross is liable for damages AWG sustained as a result
of the Accident under several theories, including respondeat superior liability. Albatross
has admitted that at all relevant times Kozlov was acting as an employee of Albatross
within the scope of Albatross’s business. Therefore, as a matter of law, Albatross is

3

Malena v. Marriott Int'l, Inc., 651 N.W.2d 850, 856 (Neb. 2002).

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vicariously liable for Kozlov’s negligence, if any. Likewise, AWG is vicariously liable for
Scott’s negligent acts committed at the time of the Accident, if any.
In addition to respondeat superior liability, AWG has alleged that Albatross is
directly liable to AWG because Albatross was negligent and reckless in hiring Kozlov,
entrusting Kozlov with the tractor-trailer, and failing to train, instruct, supervise, and
monitor Kozlov. AWG also has alleged that Albatross negligently violated federal
regulations. Pointing to its own admission of responsibility under the doctrine of
respondeat superior, Albatross argues that AWG’s direct-negligence claims against
Albatross should be dismissed as duplicative and prejudicial.
In response to Albatross’s arguments, AWG acknowledges that Nebraska has
not decided this issue, and AWG agrees that most state courts that have addressed this
issue support Albatross’s position. AWG also states:
AWG agrees with [Albatross] that the majority view is the more wellreasoned position, and believes that the majority view would be adopted
by the Nebraska courts. AWG respectfully requests that this court adopt
the majority view which holds that claims for negligent hiring, training,
retention, entrustment and any other claim based on imputed liability, are
not proper when the employer is otherwise vicariously liable for the acts of
the employee.
(AWG Br., Filing No. 230 at 5.) AWG requests that the Court “issue an Order stating
that claims for negligent hiring, training, retention, entrustment and any other claim
based on imputed liability, are not proper when the employer is otherwise vicariously
liable for the acts of the employee.” (Id.)4

4

Although not expressly stated in a motion or brief, AWG also appears to be asking the
Court for relief with regard to direct negligence claims against AWG. To the extent that AWG is
asking the Court to dismiss claims against it, the request is denied for the reason’s stated in this
Memorandum and Order.

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The Nebraska Supreme Court has not decided the issue of whether directnegligence claims, such as claims for negligent hiring, entrustment, or training, should
be dismissed when the employer has admitted responsibility for the acts of an employee
under respondeat superior. Where an issue has not been decided by the Nebraska
Supreme Court, this Court is presented with the task of predicting how the Nebraska
Supreme Court would decide the issue. See Ashley County, Ark. v. Pfizer, Inc., 552
F.3d 659, 665 (8th Cir. 2009). The Court may look “to relevant state precedent,
analogous decisions, considered dicta, and any other reliable data,” to decide how the
Nebraska Supreme Court would determine the issue. Id. “[I]t is not the role of a federal
court to expand state law in ways not foreshadowed by state precedent.” Kingman, 643
F.3d at 615 (quoting Ashley Cnty., 552 F.3d at 673) (internal quotation marks omitted).
The only support the parties provide for their mutual conclusion is law from other
jurisdictions, that are split on the issue. Albatross and AWG both urge this Court to
follow the view expressed by the Supreme Court of Missouri in McHaffie By & Through
McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). In McHaffie, the court stated, “The
majority view 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 the employer on
any other theory of imputed liability.” 891 S.W.2d at 826.
The reasoning supporting this view is that once respondeat superior liability is
admitted, “[t]he liability of the employer is fixed by the amount of liability of the
employee.” Id. In McHaffie, the court reasoned that to allow the evidence to support
other claims of negligence against the same person “serves no real purpose. The

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energy and time of courts and litigants is unnecessarily expended. In addition,
potentially inflammatory evidence comes into the record which is irrelevant to any
contested issue in the case.” Id. The court acknowledged that this rule may not be
properly applied “when an employer or entrustor may be held liable on a theory of
negligence that does not derive from and is not dependent on the negligence of an
entrustee or employee” and when “an employer or an entrustor may be liable for
punitive damages which would not be assessed against the employee/entrustee.” Id.;
see also Meherg v. Pope, 2013 WL 5934143, at *16 (W.D. Ky 2013); Southard v.
Belanger, LP, 2013 WL 4499016, at *15 (W.D. Ky 2013); Hackett v. Washington
Metropolitan Area Transit Authority, 736 F.Supp. 8, 11 (D.D.C. 1990).
A number of courts disagree with the view expressed in McHaffie, and have held
that it is not proper to dismiss other theories of negligence when the employer has
admitted responsibility under respondeat superior, because claims based on direct and
indirect negligence theories are entirely separate causes of action. See e.g., James v.
Kelly Trucking Co., 661 S.E.2d 329, 331-32, 33 (S.C. 2008); Fairshter v. American Nat.
Red Cross, 322 F.Supp.2d 646, 654 (E.D. Va. 2004); Marquis v. State Farm Fire and
Cas. Co., 961 P.2d 1213, 1222 (Kan. 1998).
In James, the United States District Court for the District of South Carolina
certified the question regarding whether “South Carolina law prohibit[s] a plaintiff from
pursuing a negligent hiring, training, supervision, or entrustment claim once respondeat
superior liability has been admitted” to the Supreme Court of South Carolina. 661
S.E.2d at 330. The Supreme Court of South Carolina held that it did not prohibit
plaintiffs from pursing such claims because they are independent, direct causes of
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action against employers, while claims based on respondeat superior theory are derived
from an employee’s liability. Id. The court reasoned that, “it is a rather strange
proposition that a stipulation as to one cause of action could somehow ‘prohibit’
completely the pursuit of another.” Id. at 332.
The defendant in James argued that the court should dismiss independent
causes of action against it to protect the jury from considering prejudicial evidence. Id.
at 331. In response to this argument, the Supreme Court of South Carolina stated that
a trial court is tasked with crafting instructions “describing what a jury may or may not
infer from a particular piece of evidence,” and the “court system relies on the trial court
to determine when relevant evidence is inadmissible because its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Id. at 331, 332. The court concluded that,
the argument that the court must entirely preclude a cause of action to
protect the jury from considering prejudicial evidence gives impermissibly
short-shrift to the trial court's ability to judge the admission of evidence
and to protect the integrity of trial, and to the jury's ability to follow the trial
court's instructions.
Id. at 331.
The parties have not provided any Nebraska law nor have they provided any
expressed Nebraska policy supporting a finding that the Nebraska Supreme Court
would apply the rule in McHaffie. Neither can the Court find any indication as to which
view Nebraska courts would adopt.
Even if this Court were to conclude that the McHaffie rule likely would be adopted
by the Nebraska Supreme Court, the parties have failed to address the exceptions
discussed in that case. Although punitive damages do not appear to be at issue here,
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the parties have not discussed whether any of the claims against employers are
independent of the negligence of an employee. The parties have also failed to brief the
implications of dismissing any claims arising under federal regulations.5 While the
parties appear to agree on their preference for the application of the doctrine expressed
in McHaffie, and the parties could stipulate to the dismissal of direct-negligence claims if
they wished, they cannot stipulate as to what the law is in Nebraska. The Court is not
persuaded that the Nebraska Supreme Court would prohibit a plaintiff from pursuing
independent claims for negligent hiring, training, supervision, or entrustment, once an
employer’s responsibility under respondeat superior has been established. The Court
declines to expand the law in Nebraska in ways not foreshadowed by state precedent
by applying McHaffie.
CONCLUSION
Because this Court is not persuaded that the Nebraska Supreme Court would
prohibit a plaintiff from pursuing independent claims for negligent hiring, training,
supervision, or entrustment, once a defendant has admitted responsibility under
respondeat superior; and because it is within the power of the parties to move to
dismiss such direct-negligence claims against the employer defendants if they so wish;
this Court will decline the parties’ joint suggestion that the Court expand the law in
Nebraska by applying precedents from other jurisdictions to effect the dismissal of such
direct-negligence claims in this case.

5

“A party’s failure to brief an issue raised in a motion may be considered a waiver of that
issue.” NECivR 7.1(a)(1)(A).

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Accordingly,
IT IS ORDERED, Kozlov and Albatross’s Motion for Partial Summary Judgment
(Case No. 4:10-cv-3211, Filing No. 218) is denied.
Dated this 18th day of April, 2014.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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