Certain Underwriters at Lloyd's and those companies severally subscribing to Boeing Policy Number MARCW150053 and related policies governing the cargo et al v. Southern Pride Trucking, Inc. et al
Filing
217
MEMORANDUM AND ORDER that Thunder Rolls and Southern Pride's motion for summary judgment (filing 188 ) is denied. Certain Underwriters' partial motion for summary judgment (filing 189 ) is denied. Road Star's motion for summary j udgment (filing 191 ) is denied in part, and granted in part, as set forth above. Bauer Built's motion for summary judgment (filing 192 ) is denied in part, and granted in part as set forth above. Bauer Built's motion for oral argument (filing 195 ) is denied. Ordered by Judge John M. Gerrard. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CERTAIN UNDERWRITERS AT
LLOYD'S AND THOSE COMPANIES
SEVERALLY SUBSCRIBING TO
BOEING POLICY NUMBER
MARCW150053 AND RELATED
POLICIES GOVERNING THE
CARGO,
8:16-CV-116
MEMORANDUM AND ORDER
Plaintiffs,
vs.
SOUTHERN PRIDE TRUCKING,
INC., et al.,
Defendants.
This dispute involves an accident between two tractor trailers on
Interstate 80 near Wood River, Nebraska. The accident resulted in significant
damage to a Boeing airplane engine, which has led to this multi-party
dispute. Specifically, Boeing's insurers, "Certain Underwriters at Lloyd's and
Those
Companies
Severally
Subscribing
to
Boeing
Policy
Number
MARCW150053 and Related Policies Governing The Cargo" (collectively,
"Certain Underwriters"), are suing four entities which, they claim, caused or
contributed to the accident: Southern Pride Trucking, Thunder Rolls Express,
Bauer Built, and Road Star Carrier. Several of the parties have filed motions
for summary judgment, which will be granted in part, and denied in part, as
set forth below.
BACKGROUND
This Court's prior Memorandum and Order (filing 159) set forth the
background of this case in detail. Generally speaking, the relevant facts are
as follows. Southern Pride, a trucking company, agreed to transport a Boeing
airline engine from Ohio to Washington. Filing 115 at 3-4. Rather than using
its own fleet of tractor trailers, Southern Pride subcontracted the job to
defendant Thunder Rolls, a trucking company based in Indiana. Filing 115 at
3. Joseph Womack, Thunder Rolls' owner and sole proprietor, picked up the
engine from a General Electric plant in Ohio. After loading the engine onto
his trailer, Womack set out for Everett, Washington. See filing 124-1 at 6.
Womack's route took him through Wood River, Nebraska, as he proceeded
west on Interstate 80. See filing 191-1 at 8.
Approximately an hour and a half before Womack reached Wood River,
a different westbound tractor trailer had pulled over on the westbound side of
Interstate 80 with a flat tire. Filing 191-1 at 8. That tractor trailer was
owned by defendant Road Star. Filing 191-1 at 8. Road Star contacted
defendant Bauer Built, which provides roadside assistance to the interstate
trucking industry. Soon after, a Bauer Built employee arrived to replace the
tire. Filing 191-1 at 9. Both were still on the north side of the road as
Womack approached.
Womack, who was driving in the right lane, was approximately 100 feet
away from Road Star's disabled truck when he first noticed it. Filing 191-1 at
9. Womack attempted to move into the left lane to avoid any potential contact
with the vehicle. Filing 191-1 at 9. But as he began to move over, Womack
noticed a pickup truck in his side-view mirror. Filing 124-1 at 40. So,
Womack "came back to the right to get [to the] center of [his] lane." Filing
124-1 at 40. Womack collided with Road Star's truck. The airplane engine
dislodged from Womack's trailer, landing on the road. See filing 124-1 at 11.
According to Certain Underwriters, the engine is no longer functional,
resulting in approximately $18,000,000 in damages. Filing 191-1 at 22.
2
Boeing and its insurer, Certain Underwriters, filed this action against
Southern Pride, Thunder Rolls, Road Star, and Bauer Built. Certain
Underwriters and the first two defendants, Southern Pride and Thunder
Rolls, have settled their claims. Filing 206. But Certain Underwriters has
also sued the latter two defendants—Road Star and Bauer Built—for simple
negligence and negligence per se. Road Star has also filed crossclaims against
Southern Pride and Thunder Rolls for (1) negligence; (2) negligence per se; (3)
indemnification; and (4) contribution. Filing 47 at 9-14. And Bauer Built has
filed crossclaims against Southern Pride and Thunder Rolls for negligence
and contribution. Filing 57 at 7-9.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
3
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
Each of the four defendants (and Certain Underwriters) have moved for
summary judgment on various grounds. Because Southern Pride and
Thunder Rolls raise largely the same arguments, their motions will be
considered together. The Court will then turn to Road Star and Bauer Built's
motions, which also raise common issues of fact and law.
I. SOUTHERN PRIDE AND THUNDER ROLLS
Generally speaking, Southern Pride and Thunder Rolls argue that their
respective liability, if any, is governed by the Carmack Amendment to the
Interstate Commerce Act, 49 U.S.C. § 14706. Filing 188 at 13-17. To that end,
Southern Pride and Thunder Rolls contend nearly all1 remaining state law
claims of crossclaimants Bauer Built and Road Star are preempted by the
Carmack Amendment, and therefore fail as a matter of law. Filing 188 at 17.
But before the Court reaches the merits of the parties' arguments, it
must first take a brief detour through the history, and applicability, of the
1
Road Start has filed crossclaims in negligence against Thunder Rolls and Southern Pride
for damage that it sustained to its own cargo. Neither Road Star nor Southern Pride move
for summary judgment on that claim.
4
Carmack Amendment. The Carmack Amendment provides a single uniform
rule for carriers operating in interstate commerce. Rocky Ford Moving Vans,
Inc. v. United States, 501 F.2d 1369, 1372 (8th Cir. 1974); see 49 U.S.C. §
14706. To that end, the statutory provisions "supercede the diverse
requirements of state legislation and decisions, and render invalid all
agreement(s) in derogation of them." Rocky Ford Moving Vans, 501 F.2d at
1372 (cleaned up). Under the Carmack Amendment, a carrier of an interstate
shipment is "liable to the person entitled to recover under the receipt or bill of
lading." 49 U.S.C. § 14706(a)(1). The person "entitled to recover" can bring
suit for the "actual loss or injury to the property caused" against any carrier
in the course of the interstate shipment. 49 U.S.C. § 14706(a)(1). A shipper
can thus be confident that the carrier will be liable for any damage that
occurs to its shipment. REI Transport, Inc. v. C.H. Robinson Worldwide, Inc.,
519 F.3d 693, 697 (7th Cir. 2008). And a carrier can accurately gauge, and
thus insure against, any liability it may face when it agrees to carry
something. Id.
The Carmack Amendment achieves uniformity in two primary
respects—of which the latter is at issue here. First, the Amendment places
"substantive limits on the rights of carriers to contract away liability." REI,
519 F.3d at 697 (citing Adams Express Co. v. Croninger, 226 U.S. 491, 505
(1913)). Second, the statute preempts state causes of action against carriers
for damaged or lost goods. See Adams Express Co., 226 U.S. at 505-06;
Underwriters at Lloyds of London v. North American Van Lines, 890 F.2d
1112, 1120 (10th Cir. 1989). Thus, as some federal circuits have held, a
shipper (here, Certain Underwriters) cannot bypass the statute simply by
filing a state suit for the damaged goods unless the claim seeks to remedy a
"separate and independently actionable harm." North American Van Lines,
5
Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 458 (7th Cir. 1996); see Rini v.
United Van Lines, Inc., 104 F.3d 502,506 (1st Cir. 1997); Smith v. United
Parcel Serv., 296 F.3d 1244, 1249 (11th Cir. 2002).
Southern Pride and Thunder Rolls claim that Road Star's crossclaims
for negligence, negligence per se, indemnity, and contribution, and Bauer
Built's crossclaims for negligence and contribution, are preempted under the
Carmack Amendment. Specifically, Southern Pride and Thunder Rolls argue
that because the Carmack Amendment preempts state law causes of action,
Bauer Built and Road Star's contribution- and negligence-related claims
must be dismissed as a matter of law. But as Bauer Built and Road Star
correctly point out, Carmack preemption is only an issue as between shippers
and carriers. See Fulton v. Chicago, Rock Island & P. R. Co., 481 F.2d 326,
331 (8th Cir. 1973) ("the Carmack Amendment has preempted suits in
specific negligence by holders of bills of lading against their carriers")
(emphasis added)); see also Mason & Dixon Intermodal, Inc. v. Lapmaster
Int'l LLC, 632 F.3d 1056, 1061 (9th Cir. 2011) ("the Carmack Amendment
preempts all state and common law claims for relief against a carrier for
damage to goods in interstate carriage" (emphasis added)). And neither
Bauer Built's nor Road Star's crossclaims are in any way related to the
shipment or carrying of cargo. Rather, as described in more detail below, the
crossclaimants allege that Thunder Rolls' driver was, among other reasons,
negligent in failing to keep a proper lookout. So, Southern Pride and Thunder
Rolls' motion for summary judgment on these grounds will be denied.
II. BAUER BUILT AND ROAD STAR
Certain Underwriters has also sued Road Star and Bauer Built for
negligence and negligence per se. Filing 115 at 9-10. Road Star and Bauer
Built seek summary judgment on those claims arguing, among other things,
6
that Womack was an efficient intervening cause, and thus, the sole proximate
cause of the accident. See filing 191-1 at 16; filing 193 at 22. In the
alternative, Bauer Built and Road Star request that the Court "enter an
order declaring that Nebraska's joint and several liability law, or any other
joint and several liability law, is not applicable[.]" Filing 193 at 54; filing 214
at 42. Instead, Bauer Built and Road Star argue that liability should be
apportioned commensurate with the degree, if any, of Bauer Built's and/or
Road Star's respective fault. Filing 193 at 54; filing 214 at 42.
The defendants' former contention touches on a broader argument
underlying much of the parties' dispute: whether the Court should apply
federal common law, as Certain Underwriters argues, filing 190 at 38, or
state law negligence principles, as Bauer Built and Road Star contend, filing
191-1 at 102; filing 197 at 7. According to Certain Underwriters, federal
common law governs because its negligence per se claim is premised on
alleged violations of 49 C.F.R. § 392—federal motor carrier regulations. Filing
190 at 37-38. And it applies to the simple negligence claims, Certain
Underwriters argues, because the Supreme Court has expressed a "clear
requirement" of uniformity in the movement of interstate cargo. Filing 190 at
39. To that end, Certain Underwriters seems to suggest that because the
underlying accident involved the interstate shipment of cargo, and thus the
application of the Carmack Amendment, federal common law necessarily
preempts any application of state court law or procedure. See filing 190 at 3944.
But those arguments fail for at least two reasons. First, Certain
Underwriters' claims against Bauer Built and Road Star are entirely
unrelated to the shipment of interstate cargo and, for all practical purposes,
have no meaningful connection to the Carmack Amendment. Rather, Certain
7
Underwriters allege that Bauer Built and Road Star were negligent by failing
to take certain precautionary measures—such as adequately warning
oncoming traffic of their disabled status. And Certain Underwriters has
provided no authority to suggest that, under those circumstances, federal
common law applies. Second, federal courts routinely apply the law of the
state in determining the effect, if any, of a violation of 49 C.F.R. § 392, et seq.
See e.g., Dmitruk v. George and Sons' Repair Shop, Inc., 217 F. App'x 765, at
768-69 (10th Cir. 2007) (applying Colorado law); Estes v. USA Truck Inc., No.
97-30569, 1998 WL 792663, at *2 (5th Cir. Oct. 29, 1998) (applying Louisiana
law); Aragon v. Wal-Mart Stores East, LP, 924 F. Supp. 2d. 1066, 1071 (E.D.
Mo. 2013); Illinois Cent. R Co. v. Cryogenic Transp. Inc., 901 F. Supp 2d 790,
808 (S.D. Miss. 2012); Spence v. ESAB Group, Inc., No. 1:07-CV-583, 2008
WL 450436, at *2 (M.D. Pa. Feb. 15, 2008). So, the Court will evaluate the
parties' dispute under Nebraska law.
A. Bauer Built
As discussed above, Bauer Built provides, among other services,
roadside assistance to the interstate trucking industry. On the day of the
accident, Bauer Built's employee, Brandon Salisbury, was dispatched to the
eventual scene of the accident to service Road Star's flat tire. Filing 193 at 8.
Salisbury had finished changing the tire, and was making final adjustments,
when Thunder Rolls' driver, Womack, struck Road Star's tractor trailer. See
filing 124-9 at 24-25.
According to Certain Underwriters, Bauer Built had a duty to warn
oncoming drivers of the disabled status of roadside vehicles it services. See
filing 115 at 5-6. Certain Underwriters contend that Bauer Built's employee
breached that duty on the day of the accident by: (1) parking the service
vehicle near the right front end of Road Star's truck, as opposed to behind it;
8
(2) parking the service vehicle parallel to the disabled truck (and the road), as
opposed to at an angle; (3) failing to activate the service vehicle's overhead
hazard lights; and (4) failing to place warning triangles behind the Road Star
trailer. See filing 192 at 8 n.3; see also filing 190 at 16-18.
Certain Underwriters has sued Bauer Built for negligence and
negligence per se. But since filing its amended complaint, Certain
Underwriters has stipulated to the dismissal of its negligence per se claim
against Bauer Built, and to the denial of its partial motion for summary
judgment on those grounds. Filing 147. So, the only issue that remains is
whether Bauer Built is entitled to summary judgment on Certain
Underwriters' remaining state law negligence claim.
In order to recover in a negligence action, a plaintiff must show a legal
duty owed by the defendant to the plaintiff, a breach of that duty, causation,
and damages. A.W. v. Lancaster Cty. Sch. Dist. 0001, 784 N.W.2d 907, 913
(Neb. 2010) (citation omitted). To establish the third element, causation, the
plaintiff must demonstrate that the defendant was the "proximate cause" of
the plaintiff's injury. King v. Crowell Memorial Home, 622 N.W.2d 588, 594
(Neb. 2011). That, in turn, requires the plaintiff to meet three basic
requirements. First, without the negligent action, the injury would not have
occurred, commonly known as the "but for" rule. Second, the injury was a
natural and probable result of the negligence. And third, there was no
efficient intervening cause. Latzel v. Bartek, 846 N.W.2d 153, 163 (Neb.
2014). Here, Bauer Built argues that Womack's negligence was an
intervening cause of the accident, and that Certain Underwriters therefore
cannot, as a matter of law, establish causation. See filing 193 at 22.
An efficient intervening cause is new and independent conduct of a
third person, which itself is a proximate cause of the injury in question "and
9
breaks the causal connection between the original conduct and the injury."
Latzel, 846 N.W.2d at 164. The causal connection is severed when (1) the
negligent actions of a third party intervene, (2) the third party had full
control of the situation, (3) the third party's negligence could not have been
anticipated by the defendant, and (4) the third party's negligence directly
resulted in injury to the plaintiff. Id. (citing Wilke v. Woodhouse Ford, 774
N.W.2d 370, 383 (Neb. 2009)). The Nebraska Supreme Court has made clear
that "the doctrine that an intervening act cuts off a tort-feasor's liability
comes into play only when the intervening cause is not foreseeable." Wilke,
774 N.W.2d at 816-17. Thus, if a third party's negligence is reasonably
foreseeable, the third party's negligence is not an efficient intervening cause
as a matter of law. Id.
Specifically, Bauer Built claims that it could not have foreseen that
Womack would (1) fail to keep a proper lookout; (2) follow too closely behind
the tractor trailer that was travelling in front of him as to obstruct his view;
and (3) "panic[]" when he saw Road Star's truck on the side of the road and
"overcorrect" into Road Star's vehicle. Filing 193 at 29-39. And as such, Bauer
Built argues, it cannot be held liable for its employee's negligence, if any, on
the day of the accident.
Regarding its first point, Bauer Built generally claims that the Road
Star truck was clearly visible, and had Womack kept a proper lookout, he
could have avoided the accident altogether. To support this contention, Bauer
Built points to Womack's own admission that he had a clear, unobstructed
view of the road about a half mile away from the accident, but nonetheless,
failed to see the disabled Road Star vehicle. Filing 124-1 at 23.
10
Q: So is it fair to say that when you were a half mile away from
where the accident happened, you had an unobstructed view of
the area where the disabled vehicle was?
...
A: Yes.
Q: And at that point you just did not observe the disabled vehicle
on the right side of the road?
...
A: True.
Filing 124-1 at 23.2 And Bauer Built bolsters its argument that Womack
should have noticed the Road Star truck with testimony from Salisbury
(Bauer Built's employee) and Clete Larson (an eyewitness)—both of whom
testified to seeing the disabled tractor trailer on the side of the road from at
least one mile away. See filing 193 at 18; filing 124-9 at 39; filing 124-10 at 6.
Thus, according to Bauer Built, it was not bound to anticipate that Womack
would fail to keep a proper lookout.
Second, Bauer Built argues that any obstruction of Womack's view was
the result of his own negligence in following too closely behind a tractor
trailer that was directly in front of him. Indeed, according to Womack's
testimony, he began following the tractor trailer, which was a mile and a half
ahead of him, approximately three miles before the accident. Filing 124-1 at
18. But because Womack was traveling at a higher rate of speed than the
truck in front of him, he began gaining on the truck to the point where it
2
Bauer Built extrapolates from the deposition testimony that Womack's view of the
shoulder actually started as far as one mile back. Filing 123 at 24.
11
began to obstruct his view. Filing 124-1 at 22. And Bauer Built claims that
Womack's decision to "obscure[] his own vision" by continuing to follow the
tractor in front of him too closely, was unforeseeable. Filing 193 at 27.
Finally, Bauer Built points out, that by the time Womack actually saw
Road Star's truck on the side of the road, he "panicked"––immediately
moving over to the left lane to avoid contact with the disabled vehicle. Filing
124-1 at 34; filing 193 at 28. But because there was another car in that lane,
Womack, by his own admission, "overcorrected," swerving back into the righthand lane, and eventually side-swiping Road Star's truck. Filing 124-1 at 34.
So, Womack's actions, and subsequent reaction, Bauer Built argues, were
events that it "was not bound to anticipate." Filing 193 at 34.
But the Court cannot say, as a matter of law, that Womack's actions
were unforeseeable. See Lancaster Cty. Sch. Dist. 0001, 784 N.W.2d at 917
(the Court should leave foreseeability determinations to the finder of fact
"unless no reasonable person could differ on the matter"). Indeed, a driver's
excessive speed, see Maresh v. State, 489 N.W.2d 298, 313 (Neb. 1992),
overruled on other grounds by Davis v. State, 902 N.W.2d 165 (Neb. 2017);
failure to maintain a proper lookout, Vilas v. Steavenson, 496 N.W.2d 543,
551 (Neb. 1993), overruled on other grounds by DeWester v. Watkins, 745
N.W.2d 330 (Neb. 2008); and inadvertent straying onto the side of the road,
see Maresh, 489 N.W.2d at 312; are foreseeable events. So it would not be
beyond the bounds of reason for a jury to conclude that Womack's actions
were also foreseeable.
And even assuming Womack was negligent in the manner described
above that does not, without more, preclude a finding that Bauer Built was
also a proximate cause of the collision. As the Nebraska Supreme Court has
held, an act need not be the sole cause of harm to qualify as a proximate
12
cause. Amanda C. ex rel. Richmond v. Case, 749 N.W.2d 429, 441 (Neb. 2008).
And "[w]hen multiple causes act to produce a single injury, any one of those
acts can still qualify as a proximate cause of that harm[.]" Id.; see Basra v.
Ecklund Logistics, Inc., No. 8:16-CV-83, 2017 WL 2912454, at *6 (D. Neb.
May 26, 2017).
To this end, Certain Underwriters has come forward with evidence, in
the form of expert testimony, that Bauer Built's alleged failure to warn
oncoming traffic of Road Star's disabled truck was a proximate cause of the
collision. See filing 130-25 at 9, filing 130-25 at 13. One expert opined that
had Bauer Built parked its car behind Road Star's truck and properly
activated its warning lights, it could have increased visibility beyond 1,500
feet.3 Filing 130-26 at 11. Another observed that Bauer Built's technician "did
not park his service vehicle in the correct position behind the disabled truck
so that the flashers and beacon lights would be visible as a warning to
oncoming traffic[.]" Filing 130-28 at 4. And Certain Underwriters' accident
reconstructionist, Dr. William Fogarty, wrote:
It is my opinion, given within a reasonable degree of scientific
certainty, that the primary causes of the instant collision were
failures of Road Star and Bauer Built to provide warnings within
industry standards to give Mr. Womack a reasonable opportunity
to react and avoid the Road Star trailer to his front.
3
Again, Bauer Built suggests that such measures would not have made a difference
because Womack was not keeping a proper lookout. But the evidence simply suggests that
Womack, for whatever reason, did not see the disabled truck. In other words, the Court is
aware of no evidence that Womack was actively distracted or not paying attention, at all, to
the road.
13
Filing 130-25 at 9 (emphasis omitted).
A determination of causation is ordinarily a matter for the trier of fact.
Kozicki v. Dragon, 583 N.W. 2d 336, 340 (Neb. 1998); Baldwin v. City of
Omaha, 607 N.W.2d 841, 852 (Neb. 2000). That is particularly true in this
case, where the record includes evidence from both sides as to the underlying
cause or causes of the collision. See Tess v. Lawyers Title Ins. Corp., 557
N.W.2d 696, 706 (Neb. 1997). Thus, because factual issues remain on the
issue of causation, the Court will deny Bauer Built's motion for summary
judgment as to Certain Underwriters' state-law negligence claim.
B. Road Star
As alluded to throughout, Road's Star's employee, Muhammed Saqib,
incurred a flat tire while travelling westbound on I-80. Filing 198 at 8. In
response, Saqib engaged his four way flashers and pulled over to the side of
the road. Filing 191-1 at 30. He then placed two reflective triangles behind
the idle truck: one 10-12 feet behind the trailer, and the other 30-40 feet
behind the trailer. Filing 191-1 at 30. The trailer remained on the side of the
road without incident for approximately an hour and a half before the
collision occurred. Filing 191-1 at 30.
Certain Underwriters contends that Road Star was negligent because
its employee failed to park the trailer at an appropriate distance from the
travel lane so as to avoid collision with oncoming vehicles, and failed to
comply with various federal regulations for the purpose of warning oncoming
traffic of its disabled status. See filing 115 at 9-10. Relatedly, Certain
Underwriters argues Road Star was negligent per se because Saqib failed to
place three reflective triangles around his stalled truck as is required by
federal regulation. Filing 190 at 44. The parties' have filed cross motions for
summary judgment on Certain Underwriters' negligence per se claim. See
14
filing 189; filing 192. And Road Star has moved for judgment as a matter of
law on Certain Underwriters' remaining negligence claim. Filing 191.
(i) Negligence Per Se
Certain Underwriters' motion for partial summary judgment is easily
disposed of, so the Court will begin there. Certain Underwriters argues that
because Road Star violated certain federal safety regulations, it has
necessarily established its claim for negligence per se. But even assuming
Certain Underwriters' allegations are true, summary judgment would not be
appropriate. After all, the Nebraska Supreme Court has repeatedly held that
"the violation of a regulation or statute is not negligence per se, but may be
evidence of negligence to be considered with all the other evidence in the
case." Scheele v. Rains, 874 N.W.2d 867, 872 (Neb. 2016); see Fuhrman v.
State, 655 N.W.2d 866, 874 (Neb. 2003), disapproved on other grounds, Jill B.
v. State, 899 N.W.2d 241, 265 (Neb. 2017); Goodenow v. Dept. of Corr. Serv.,
610 N.W.2d 19, 22 (Neb. 2000). So, Certain Underwriters' motion for partial
summary judgment on these grounds will be denied, and Road Star's motion
for summary judgment will be granted on the issue of negligence per se.
Accordingly, Certain Underwriters' negligence per se claim (cause of action V)
will be dismissed.4
(ii) Negligence
Certain Underwriters also alleges that Road Star's employee was
negligent in failing to park the disabled tractor trailer "at a safe distance
from the travel lane," and for "failing to comply" with various federal safety
4
So the record is clear, Certain Underwriters has also stipulated to the dismissal of its
negligence per se claim against Bauer Built, filing 147, and thus, Certain Underwriters'
Fifth Cause of Action––negligence per se––will be dismissed in its entirety.
15
standards warning oncoming traffic of its disabled status. Filing 115 at 9-10.
Road Star has moved for summary judgment on that claim, raising nearly
identical arguments to those discussed above. In other words, Road Star, like
Bauer Built, claims that Womack was an efficient intervening cause of the
accident based on his "inattentiveness, his panicked response when he finally
became aware of Road Star's disabled vehicle, and his failure to comply with
the rules of the road." Filing 198 at 50. But for the reasons already explained,
the Court finds that Womack's negligence was not necessarily unforeseeable.
Thus, it cannot be said that Womack, as a matter of law, was the sole
proximate cause of the accident.
So, one issue remains: whether a reasonable fact finder could conclude
that Road Star breached its legal duty and was a proximate cause of the
collision. See Lancaster Cty. Sch. Dist. 0001, 784 N.W.2d at 913. Road Star
claims it was not, and supports this argument with evidence that it says
demonstrates that Road Star took the necessary steps, and followed the
relevant regulations, to ensure oncoming traffic was properly warned of its
disabled status. Filing 191-1 at 124. Specifically, Road Star claims that it was
not obligated to comply with 49 C.F.R § 392.22(b)(2)(iv)—requiring the driver
of a disabled vehicle to place a warning as far as 500 feet behind the tractor
trailer—because there was no "curve, crest of a hill, or other obstruction"
triggering the application of this provision. Filing 191-1 at 125-26. Instead,
Road Star argues that 49 C.F.R § 392.22(b)(1), requiring the driver of a
vehicle to place three triangles around the disabled tractor trailer, applies to
the facts of this case. And it is Road Star's position that Saqib placed the
correct number of triangles, at the appropriate distances, as required by
federal regulation. Filing 191-1 at 127.
16
But after reviewing the evidence, the Court finds that summary
judgment is not warranted at this stage of the proceeding. First, even if, as
Road Star contends, § 392.22(b)(2)(iv) does not apply to this dispute, Road
Star has not addressed the various other regulations that Certain
Underwriters claims were disregarded on the day of the accident. See filing
190 at 22-44; see also 49 CFR § 392.8, 49 CFR § 393.95(f)(2); 49 CFR 393.95.
Second, the regulation Road Star argues does apply, § 392.22(b)(1), also
requires the driver to place three warning devices on the road immediately
after the vehicle is stalled, with the last warning device to be placed at least
100 feet behind the vehicle. Id. And, based on the evidence before the Court,
it appears that Road Star's driver only placed two warning devices on the
road immediately after the vehicle was stalled, with the last warning triangle
placed no more than sixty feet behind the truck. Filing 124-7 at 27; filing 1136 at 22.
And as discussed above, Certain Underwriters has come forth with
evidence, in the form of expert testimony, suggesting that had Road Star
provided warnings within industry standards, Womack would have had a
reasonable opportunity to react, and avoid, the Road Star trailer. See filing
130-25 at 9, filing 130-25 at 13; filing 130-26; filing 202-1. This is an issue for
the jury to decide. Thus, Road Star's motion for summary judgment as to
Certain Underwriters' negligence claim will be denied.
C. Joint and Several Liability
Bauer Built and Road Star raise separate, yet related arguments (and
requests) regarding joint and several liability. Bauer Built claims that, in the
event its motion on the merits is denied, the Court should enter an order
"declaring that Nebraska's joint and several liability law, or any other joint
and several liability law, is not applicable to the claims alleged against Bauer
17
Built." Filing 193 at 54. Similarly, Road Star requests that the Court "find
that joint and several liability does not apply" to shift responsibility to Road
Star "as to any damages assessed against Southern Pride and Thunder
Rolls." Filing 191-1 at 167. These motions are premised on the contention
that Nebraska's comparative negligence statutory scheme prohibits a
negligence defendant (i.e., Bauer Built and Road Star) from being a joint tortfeasor with a strict liability defendant (i.e., Thunder Rolls and Southern
Pride).
Indeed, the Nebraska legislature has created a statutory scheme which
has altered the common law rule for joint and several liability in some
instances. See Tadros v. City of Omaha, 735 N.W.2d 377, 380 (Neb. 2007).
Specifically, Neb. Rev. Stat. § 25-21,185.10 states:
In [an] action involving more than one defendant, the liability of
each defendant for economic damages shall be joint and several
and the liability of each defendant for noneconomic damages
shall be several only and shall not be joint. Each defendant shall
be liable only for the amount of noneconomic damages allocated
to that defendant in direct proportion to that defendant's
percentage of negligence, and a separate judgment shall be
rendered against that defendant for that amount.
Id.. In other words, § 25-21,185.10 allows joint and several liability for
economic damages, but limits the plaintiff's recovery of non-economic
damages from any one tort-feasor to that tort-feasor's proportionate liability.
But as Bauer Built and Road Star correctly point out, that statutory
rule only applies when contributory negligence "may be, pursuant to law, a
18
defense" to the plaintiff's underlying claim. Neb. Rev. Stat. § 25-21,185.07.
So, an initial question is whether contributory negligence can be asserted as
a defense such that Nebraska's statutory framework governs.
The Nebraska Supreme Court has answered that question in the
negative. Specifically, in Shipler v. Gen. Motors Corp., the court addressed
whether "contributory negligence [may] be asserted as a defense in an action
based upon strict liability." 710 N.W.2d 807, 826 (Neb. 2006). The court
concluded that it cannot, noting that the text of § 25-21,185.07, as well as the
evidence of legislative intent before it, supported the conclusion that
Nebraska's comparative negligence statutes were not intended to apply in
actions based on strict liability. Shipler, 710 N.W.2d at 831. And because this
is an action based in part on strict liability, see UPS Supply Chain Solutions,
Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1285 (11th Cir. 2014) (claims
based on the Carmack Amendment are strict liability claims); Mitsui
Sumitomo Ins. Co. v. Evergreen Marine Corp., 621 F.3d 215, 216 (2nd Cir.
2010); PNH Corp. v. Hullquist Corp., 843 F.2d 586, 590 (1st Cir. 1988), the
Court finds that contributory negligence is not a defense, and therefore, § 2521,185.10 does not apply.
But Bauer Built and Road Star's arguments end there. In other words,
both parties suggest that because § 25-21,185.10 does not apply, joint and
several liability is necessarily foreclosed. To that end, Bauer Built and Road
Star mention nothing of general common law principles, which generally
apply in the absence of clear statutory language displacing a common law
right. See Dykes v. Scotts Bluff Cty. Agr. Soc., Inc., 617 N.W.2d 817, 823 (Neb.
2000) ("the common law will be abrogated no further than expressly declared
or than is required from the clear import of the language employed by the
statute"); Macku v. Drackett Prods. Co., 343 N.W.2d 58, 61 (Neb. 1984)
19
(construction of a statute which changes, or abolishes common-law rights
should not be adopted, "unless the plain words of the statute compel such
result"); see also Munstermann ex rel. Rowe v. Alegent Health-Immanuel Med.
Ctr., 716 N.W.2d 73, 83 (Neb. 2006) (determining that in the absence of a
statute controlling a mental health professional's duty to warn, common law
still controls). And that oversight is not insignificant as Nebraska common
law also recognizes joint and several liability in lawsuits involving more than
one defendant. Indeed "an act wrongfully done by the joint agency or
cooperation of several persons, or done contemporaneously by them without
concert, renders [the defendants] liable jointly and severally." Lackman v.
Rousselle, 596 N.W.2d 15, 21 (Neb. 1999). And when two (or more) causes
produce a single indivisible injury, joint and several liability attaches.
Kudlacek v. Fiat S.p.A., 509 N.W.2d 603, 612 (Neb. 1994).
Here, it appears likely that Road Star, Bauer Built, Thunder Rolls, and
Southern Pride combined to produce a single indivisible injury. But in the
absence of any argument, or evidence, presented to the Court pertaining to
the divisibility, if any, of the injury, the Court cannot say, as a matter of law,
that Bauer Built and Road Star cannot be held jointly and severally liable
with Thunder Rolls and Southern Pride. Indeed, as noted above, common law
principles account for such joint liability, and Road Star and Bauer Built
have provided the Court no explanation as to why, or how, those common law
principles would not apply.
III. MOTION TO STRIKE
As a final matter: the Court will deny the parties' various motions to
strike each other's arguments and evidence. Certain Underwriters has moved
to strike Road Star's entire statement of facts because, among other reasons,
it cites to expert reports that Certain Underwriters claims are "biased" and
20
based on "outdated" and "misleading" findings. Filing 131 at 36-41. In
response, Road Star requests that the Court strike "as entirely speculative"
and "internally contradictory" the opinions of Dr. William Fogarty, one of
Certain Underwriters' expert witnesses. See filing 191-1 at 163. And Road
Star seeks to strike the expert report from expert ophthalmologist, Marc
Green, as "redundant, unsupported by facts, and entirely irrelevant." Filing
213 at 16. But many of the arguments in support of those requests are
premature, without merit, or both. So, those motions will be denied in their
entirety.
CONCLUSION
In sum, Certain Underwriters' partial motion for summary judgment is
denied. Bauer Built's and Road Star's motions for summary judgment are
denied in part, and granted in part, as set forth above. Specifically, Bauer
Built and Road Star may pursue their state law claims against Thunder Rolls
and Southern Pride. And Certain Underwriters may pursue its negligence
claims against Bauer Built and Road Star. But Road Star's motion for
summary judgment as to Certain Underwriters' negligence per se claim will
be granted, and that claim will be dismissed.
IT IS ORDERED:
1.
Thunder Rolls and Southern Pride's motion for summary
judgment (filing 188) is denied.
2.
Certain
Underwriters'
partial
motion
for
summary
judgment (filing 189) is denied.
3.
Road Star's motion for summary judgment (filing 191) is
denied in part, and granted in part, as set forth above.
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4.
Bauer Built's motion for summary judgment (filing 192) is
denied in part, and granted in part as set forth above.
5.
Bauer Built's motion for oral argument (filing 195) is
denied.
Dated this 30th day of January, 2018.
BY THE COURT:
John M. Gerrard
United States District Judge
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