Malone v. Eden et al

Filing 123

MEMORANDUM OPINION AND ORDER by Circuit Judge Paul Kelly, Jr. granting 86 Defendant CRST Expedited, Inc.'s Motion for Summary Judgment; denying as moot 87 Defendant CRST's Motion for Partial Summary Judgment; denying as moot 88 Def endant CRST's Motion for Partial Summary Judgment; denying as moot 106 Defendant CRST's Motion to Exclude portions of testimony; denying as moot 107 Plaintiff's Motion to Strike or in the alternative for leave to file motion; and denying as moot 108 Plaintiff's Motion for Extension of Time to File Response/Reply. (rt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

TONYA MICHELLE MALONE, as
Personal Representative of the Estate of
GERARD WATSON, Deceased,
Plaintiff,

No. 1:15-cv-01009-PJK-KBM

vs.
GARY EDEN, JACQUELINE R.
FLETCHER, CRST EXPEDITED, INC.,
and XYZ CORP.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT CRST EXPEDITED INC.’S MOTION
FOR SUMMARY JUDGMENT

THIS MATTER is before the court on (1) Defendant CRST Expedited Inc.’s
(CRST) Motion for Summary Judgment filed July 21, 2017 (ECF No. 86); (2) CRST’s
Motion for Partial Summary Judgment on Plaintiff’s Claim of Vicarious Liability for the
Actions of Jacqueline Fletcher filed July 21, 2017 (ECF No. 87); (3) CRST’s Motion for
Partial Summary Judgment on Plaintiff’s Claim for Punitive Damages filed July 21, 2017
(ECF No. 88); (4) CRST’s Motion to Exclude Portions of the Testimony of Whitney G.
Morgan filed May 14, 2018 (ECF No. 106); (5) Plaintiff’s Motion to Strike or, in the
Alternative, for Leave to File Motion filed May 29, 2018 (ECF No. 107); and (6)

Plaintiff’s Motion for Extension of Time filed May 29, 2018 (ECF No. 108). Upon
consideration thereof, the court finds that CRST’s initial motion for summary judgment is
well taken and should be granted; the remaining motions should be denied as moot. 1

Background
In this wrongful death case removed to federal court, Plaintiff, the personal
representative of the Estate of Gerard Watson, Deceased, seeks compensatory and
punitive damages associated with a commercial motor vehicle accident that occurred on
June 22, 2013, resulting in the death of Mr. Watson.
Defendant Jacqueline Fletcher had an independent contractor agreement with
Defendant CRST to operate a commercial vehicle on CRST’s behalf, and Mr. Watson
was her employee. Def.’s Mot. Summ. J. at 2 (ECF No. 86). Ms. Fletcher and Mr.
Watson were driving a truck under lease from CRST, transporting cargo to Ontario,
California. Id. at 1–2. At some point during the trip, Ms. Fletcher picked up her father,
Gary Eden, and planned to drop him off at his home in Phoenix, Arizona, on their way to
California. Id. Ms. Fletcher did not inform CRST of her plans to pick up her father as a
passenger, and she did not seek permission for his presence in the truck, in violation of
her operating agreement with CRST. 2 Id.

This case was transferred to the undersigned in January 2019.
The agreement provided, in relevant part: “In accordance with 49 C.F.R. § 392.80(a),
Contractor shall not allow any passengers (other than team co-drivers) to ride in the
Equipment unless Carrier authorizes it in writing in advance.” Def.’s Mot. Summ. J., Ex.
A (ECF No. 86-1).
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Early on the morning of June 22, the truck was involved in a single-vehicle
accident near Grants, New Mexico. Id. At the time of the accident, Ms. Fletcher was
logged as the operator of the truck and Mr. Watson was asleep in the truck’s bunk bed.
Id. Ms. Fletcher, however, was not the driver during the crash — her father was driving
and caused the accident when he lost control of the truck. Id. at 2. Ms. Fletcher’s
operating agreement with CRST specifically prohibited her from permitting an
unauthorized third party to operate the truck. 3 Def.’s Mot. Summ. J., Ex. A (ECF No. 861); Def.’s Mot. Summ. J. at 2. Mr. Watson suffered severe injuries in the crash and died
at the scene of the accident. Def.’s Mot. Summ. J. at 2.
Mr. Watson’s mother, as the personal representative of Mr. Watson’s estate, sued
Ms. Fletcher, Mr. Eden, and CRST for his wrongful death on October 1, 2015. 4
Complaint at 1 (ECF No. 1-1). CRST removed the case from New Mexico state court on
November 6, 2015. Def.’s Notice of Removal (ECF No. 1).
Six motions are currently pending before the court. On July 21, 2017, CRST filed
a motion for summary judgment on all of Plaintiff’s claims against it. (ECF No. 86).
That same day, as an alternative to a comprehensive summary judgment order, CRST
filed two alternative motions for partial summary judgment — one on the issue of
Plaintiff’s vicarious liability claim against CRST, and another on the issue of Plaintiff’s

The agreement provided, in relevant part: “Contractor agrees not to permit any
passenger to operate or be in charge of the Equipment at any time for any purpose
whatsoever.” Def.’s Mot. Summ. J., Ex. A.
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Plaintiff also sued “XYZ Corp.,” which is an unknown and fictitious entity. Def.’s
Notice of Removal at 3 (ECF No. 1).
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punitive damages claim against CRST. (ECF Nos. 87 & 88). On May 14, 2018, CRST
filed a motion to exclude at trial portions of the testimony of plaintiff’s witness Whitney
G. Morgan. (ECF No. 106). CRST filed a reply on June 13, 2018, noting Plaintiff’s
failure to file a response to its motion to exclude. (ECF No. 111). While Plaintiff did
not file a response to CRST’s motion to exclude testimony, Plaintiff did file two relevant
motions. On May 29, 2018, Plaintiff filed a motion to strike CRST’s motion to exclude,
or in the alternative a motion for leave to file a motion for partial summary judgment.
(ECF No. 107). Plaintiff also filed a motion for extension of time to respond to CRST’s
motion to exclude testimony until after the court rendered a decision on the motion to
strike. (ECF No. 108).

Discussion
Summary judgment is warranted “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). In applying this standard, the court views the evidence in the light
most favorable to the nonmoving party. Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir.
2016).
As for the substantive law governing the motion, a federal district court sitting in
diversity applies the choice of law rules of the forum jurisdiction — here, New Mexico
state law. See MidAmerica Constr. Mgmt., Inc. v. MasTec N. Am., Inc., 436 F.3d 1257,
1260 (10th Cir. 2006). Under New Mexico choice of law rules, the substantive law
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governing a tort action is the law of the place where the wrong occurred. See Terrazas v.
Garland & Loman, Inc., 142 P.3d 374, 377 (N.M. Ct. App. 2006); see also Restatement
(First) of Conflict of Laws § 378 (Am. Law Inst. 1934) (“The law of the place of wrong
determines whether a person has sustained a legal injury.”). Here, there is no dispute that
the place of wrong is New Mexico, and so New Mexico tort law governs.

A.

CRST’s Motion for Summary Judgment
CRST moved for summary judgment contending that there is no factual basis for

Plaintiff’s claims with a statement of nine undisputed material facts. Plaintiff did not
controvert these facts, hence they are undisputed. Fed. R. Civ. P. 56(e)(2); D.N.M.LRCiv. 56.1(b) (“All material facts set forth in the [movant’s] Memorandum will be deemed
undisputed unless specifically controverted.”). Thus, Ms. Fletcher was an independent
contractor driver, and CRST had no knowledge that Mr. Eden was a passenger or the
driver at the time of the accident. Moreover, CRST never entered into an employment or
leasing relationship with Mr. Eden and the leasing relationship between CRST and Ms.
Fletcher expressly provided that she would not permit passengers to operate or be in
charge of the equipment.
Plaintiff contends that CRST is liable for the injuries to Mr. Watson for three
reasons. Pl.’s Resp. at 5–11 (ECF No. 93). First, Mr. Eden was a “statutory employee”
of CRST for purposes of the Federal Motor Carrier Safety Regulations (FMCSR).
Second, CRST is liable for its own negligence when it hired Ms. Fletcher as an
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independent contractor and trained her. Third, Ms. Fletcher was acting within the scope
of her (statutory) employment when she entrusted the truck to her father Mr. Eden, and
therefore CRST is vicariously liable for the negligent entrustment to Mr. Eden and the
injuries that entrustment caused. CRST argues that on the undisputed facts, Plaintiff’s
claims against CRST fail as a matter of law. CRST responds that Mr. Eden clearly was
not an employee of CRST for the purposes of the regulations, CRST was not negligent in
its own right, and CRST cannot be held liable for the successive entrustment of the
vehicle by Ms. Fletcher to Mr. Eden. The court agrees with CRST.
First, Mr. Eden was not a “statutory employee” for the purposes of the regulations.
Ms. Malone quotes the definition of an employee under § 390.5 as “a driver of a
commercial vehicle,” and the definition of a driver as “any person who operates any
commercial vehicle.” Pl.’s Resp. at 5 (quoting 49 C.F.R. § 390.5). Her selective
quotation, however, is misleading. The full definition from the regulation provides:
Employee means any individual, other than an employer, who is employed
by an employer and who in the course of his or her employment directly
affects commercial motor vehicle safety. Such term includes a driver of a
commercial motor vehicle (including an independent contractor while in the
course of operating a commercial motor vehicle) . . . .
49 C.F.R. § 390.5 (emphasis added). Read in context, for one to be an employee, one
must be employed by an employer; and included among the class of employees are
employed drivers or independent contractors working as drivers. Mr. Eden is not
converted into a statutory employee merely because he was in control of the vehicle at
the time of the crash and was literally a “driver.” Ms. Fletcher, as an independent
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contractor of CRST, would obviously have been a statutory employee in the event of a
collision. But CRST had no knowledge of Mr. Eden’s presence in the truck and did not
entrust the truck to him. In sum, Mr. Eden cannot be a “statutory employee” for purposes
of the regulations; the regulation does not impose strict liability. Plaintiff’s expert
opinion to the contrary is both inadmissible and incorrect.
Second, Plaintiff lacks evidence that CRST was negligent in its own right. Not
only does Plaintiff’s “Additional Statement of Facts” not controvert CRST’s statement of
undisputed facts, it also recites facts that are either immaterial or overstatements of the
evidence. See Pl.’s Resp. at 2–4. For example, for the proposition that “CRST had
opportunities to observe and know Gary Eden was a passenger in the truck,” Plaintiff
cites Mr. Eden’s deposition. Id. at 2. Mr. Eden testified in his deposition that he had
walked around a CRST facility — though he could not recall where — and “guessed”
that Ms. Fletcher might have said CRST was aware of his presence. See Pl.’s Resp., Ex.
A at 15. But plain and simple this does not address CRST’s knowledge or conduct. Ms.
Fletcher’s opinion that she saw nothing wrong with having her father as a passenger
cannot be imputed to CRST. See Pl.’s Resp., Ex. B at 18. And, as for the lack of training
theory, the court agrees with CRST that there simply is no factual basis to suggest that a
lack of training (even assuming more training was advisable) contributed to Ms.
Fletcher’s decision to violate the contract and allow Mr. Eden to operate the truck.
Third, Plaintiff cannot establish a claim for negligent entrustment against CRST
for Mr. Eden’s actions because CRST never entrusted the truck to him. Mr. Eden
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specifically testified that he did not receive permission from CRST. Given this obvious
problem, Plaintiff contends that CRST negligently hired and failed to train Ms. Fletcher
about the requirement that Mr. Eden couldn’t be a passenger, and that this negligence
ultimately resulted in Mr. Eden being a driver. Pl.’s Resp. at 8. Again, no significantly
probative evidence suggests that Ms. Fletcher’s hiring or alleged lack of training
contributed to the collision here where an unlicensed, unauthorized, and unqualified
driver operated the motor vehicle. Ms. Fletcher had no authority under her agreement
with CRST to entrust the vehicle to Mr. Eden and plainly acted outside the course and
scope of her (statutory) employment. The agreement specifically provided: “Contractor
agrees not to permit any passenger to operate or be in charge of the Equipment at any
time for any purpose whatsoever.” Def.’s Mot. Summ. J., Ex. A.
That is not the only infirmity with this claim against CRST. A claim that CRST is
liable, not for its initial entrustment of a vehicle to Ms. Fletcher, but for Ms. Fletcher
negligently entrusting the vehicle to Mr. Eden, is a paradigmatic suit for successive
entrustment. And as CRST correctly notes, New Mexico does not recognize liability for
successive entrustment. See Amparan v. Demir, 234 F. Supp. 3d 1110, 1119 (D.N.M.
2017) (“New Mexico law does not recognize a cause of action for negligent entrustment
based on multiple, successive entrustments . . . .”). This is particularly true where a
plaintiff has not made a showing that the initial entrustment in the chain was itself
negligent. Ms. Fletcher’s decision to entrust the truck to Mr. Eden is a break in the chain
of responsibility, and it precludes suit against CRST for Mr. Eden’s negligence.
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For the foregoing reasons, CRST’s motion for summary judgment should be
granted on all claims.

C.

CRST’s Motions for Partial Summary Judgment and Motion to Exclude
Testimony
Because the court will grant comprehensive summary judgment in favor of CRST,

the motions for partial summary judgment and the motion to exclude portions of witness
testimony at trial are now moot. Each of those motions should be denied as moot.

D.

Plaintiff’s Motion to Strike or, in the Alternative, for Leave to File a
Motion; Plaintiff’s Motion for Extension of Time to File
Because the court will grant summary judgment in favor of CRST, and because

CRST’s Motion to Exclude Testimony should be denied as moot, Plaintiff’s motions
responding to CRST’s motion to exclude are also moot. Each of these motions should be
denied as moot.
NOW, THEREFORE, IT IS ORDERED that:
(1)

Defendant CRST Expedited Inc.’s (CRST) Motion for Summary Judgment
filed July 21, 2017 (ECF No. 86) is granted;

(2)

CRST’s Motion for Partial Summary Judgment on Plaintiff’s Claim of
Vicarious Liability for the Actions of Jacqueline Fletcher filed July 21,
2017 (ECF No. 87) is denied as moot;

(3)

CRST’s Motion for Partial Summary Judgment on Plaintiff’s Claim for
Punitive Damages filed July 21, 2017 (ECF No. 88) is denied as moot;

(4)

CRST’s Motion to Exclude Portions of the Testimony of Whitney G.
Morgan filed May 14, 2018 (ECF No. 106) is denied as moot;
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(5)
(6)
.

Plaintiff’s Motion to Strike or, in the Alternative, for Leave to File Motion
filed May 29, 2018 (ECF No. 107) is denied as moot; and
Plaintiff’s Motion for Extension of Time filed May 29, 2018 (ECF No. 108)
is denied as moot.

DATED this 17th day of January 2019, at Santa Fe, New Mexico.
/s/ Paul Kelly, Jr.
United States Circuit Judge
Sitting by Designation

Counsel:

Mark J. Caruso and David E. Shelle, Caruso Law Offices P.C., Albuquerque, New
Mexico, and Paul D. Barber and Nathan S. Anderson, Barber & Borg LLC, Albuquerque,
New Mexico, for Plaintiff.
Lisa Chavez Ortega, Rodey Dickason Sloan Akin & Robb, Albuquerque, New Mexico,
for Defendant CRST.

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