Yazzie v. Fezatte et al

Filing 162

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 154 MOTION for Partial Summary Judgment WERNER ENTERPRISES, INC.'S PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S PUNITIVE DAMAGES CLAIM and denying 157 MOTION for Summary Judgment SETH FEZATTE'S PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S PUNITIVE DAMAGES CLAIM. (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
DERRICK YAZZIE,
Plaintiff,
v.

Civ. No. 16-472 JAP/KRS

SETH FEZATTE and
WERNER ENTERPRISES, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
On April 14, 2016, Plaintiff filed a civil suit in New Mexico state court against Defendants,
alleging the following claims: 1) negligence against Defendant Fezatte directly and against
Defendant Werner under a theory of respondeat superior; 2) negligence per se against both
Defendants; and 3) negligent training, hiring, supervision, retention, and entrustment against
Defendant Werner. Plaintiff also seeks punitive damages against both Defendants. On May 24,
2016, Defendants timely removed to federal court based on diversity jurisdiction. 1
In the years since, the punitive damages skirmish has predominated the litigation. After
the Court initially ruled against Plaintiff on his punitive damage claims, he filed a motion asking
the Court to reconsider. 2 But before the Court could rule on that motion, on March 20, 2018,
Defendant Fezatte filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the

1

See SUBJECT TO ANY AND ALL FEDERAL RULE OF CIVIL PROCEDURE 12(B) DEFENSES, SETH
FEZATTE AND WERNER ENTERPRISES, INC.’S NOTICE OF REMOVAL (Doc. 1). On June 21, 2016, Plaintiff
amended the Complaint. See AMENDED COMPLAINT (Doc. 7).
2
See PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S PUNITIVE DAMAGES CLAIM (DOC 102) (Doc.
108); see also SETH FEZATTE AND WERNER ENTERPRISES, INC.’S RESPONSE TO PLAINTIFF’S
OPPOSED MOTION TO RECONSIDER THE COURT’S ORDER GRANTING MOTION FOR SUMMARY
JUDGMENT AS TO PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 115); PLAINTIFF’S REPLY IN
SUPPORT OF PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S PUNITIVE DAMAGES CLAIM (DOC. 102)
(Doc. 118).

1

Southern District of Ohio. 3 On April 4, 2018, the Court stayed the proceedings in this case and,
on June 15, 2018, the bankruptcy court granted Plaintiff relief from that automatic stay. 4
On June 20, 2018, the Court granted in part and denied in part Plaintiff’s motion to
reconsider and directed the parties to prepare additional briefing on Plaintiff’s punitive damage
claims. 5 On July 2, 2018, Plaintiff filed a supplemental brief on punitive damages. 6 Attached to
that brief was an affidavit from Kimberly Ramay, a former coworker of Defendant Fezatte.
Defendants moved to strike Ms. Ramay’s affidavit. 7 Defendants attached to their motion a
competing affidavit from Defendant Fezatte, which “continued to deny fault in this civil
proceeding” and denied each allegation in Ms. Ramay’s affidavit. On November 14, 2018, the
Court held a hearing on the motion to strike. At the end of the hearing, the Court denied the motion
and reopened discovery for the limited purpose of deposing Ms. Ramay, Defendant Fezatte, and
any other potential witnesses to the events Ms. Ramay described. 8 Five days after the hearing, on
November 19, 2018, the McKinley County District Attorney filed a criminal complaint against
Defendant Fezatte. 9 The complaint charged Defendant Fezatte with two counts: (1) Great Bodily
Harm by a Motor Vehicle; and (2) Accident Involving Death or Personal Injuries.

3

See NOTICE OF SUGGESTION OF BANKRUPTCY (Doc. 116).
See ORDER GRANTING DERRICK YAZZIE AND WERNER ENTERPRISES, INC’S JOINT MOTION TO
STAY CASE PENDING RELIEF FROM BANKRUPTCY COURT (Doc. 122); THE PARTIES’ JOINT NOTICE
OF ORDER GRANTING DERRICK YAZZIE’S MOTION FOR RELIEF FROM AUTOMATIC STAY UNDER 11
USC § 362 (Doc. 125).
5
See ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO RECONSIDER (Doc.
124).
6
See PLAINTIFF’S SUPPLEMENTAL BRIEF ON WHETHER MATERIAL ISSUES OF FACT EXIST AS TO
DEFENDANTS’ CONDUCT AND MENTAL STATE TO SUPPORT PLAINTIFF’S PUNITIVE DAMAGES
CLAIM (Doc. 127).
7
See SETH FEZATTE AND WERNER ENTERPRISES, INC.’S MOTION TO STRIKE KIMBERLY RAMAY’S
AFFIDAVIT (Doc. 129).
8
See ORDER DENYING MOTION TO STRIKE (Doc. 144).
9
See CRIMINAL COMPLAINT (Doc 139-3).
4

2

In response to these charges, Defendants moved to stay the proceedings in this case. 10 On
April 25, 2019, the Court granted Defendants’ request in part and stayed the civil trial until
resolution of the criminal case but allowed limited discovery to continue on the punitive damage
claims. 11 On June 1, 2020, the parties notified the Court that they had completed the limited
discovery, that the criminal matter against Defendant Fezatte had concluded, and that Defendants
were ready to re-brief their motion for summary judgment on Plaintiff’s punitive damage claims.12
On June 23, 2020, the Court held a status conference and set a briefing schedule. 13
In accordance with that schedule, on July 20, 2020, Defendant Werner Enterprises, Inc.,
filed a PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE
DAMAGES CLAIM (Doc. 154) (Werner Motion). Likewise, on August 10, 2020, Defendant Seth
Fezatte filed a PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S
PUNITIVE DAMAGES CLAIM (Doc. 157) (Fezatte Motion). The Motions are fully briefed. 14
The Court will grant the Werner Motion and will deny the Fezatte Motion for the following
reasons.

10

See SETH FEZATTE AND WERNER ENTERPRISES, INC.’S OPPOSED MOTION TO STAY ALL CIVIL
PROCEEDINGS PENDING ADJUDICATION OF FELONY CRIMINAL CHARGES AGAINST SETH FEZATTE
(Doc. 139).
11
See MEMORANDUM ORDER AND OPINION (Doc. 145).
12
See AMENDED REPORT OF CASE STATUS BY COUNSEL OF RECORD IN THE REFERENCED MATTER
(Doc. 151).
13
See Clerk’s Minutes for Status conference held on 6/23/2020 (Doc. 153).
14
See PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT WERNER ENTERPRISES, INC.’S
MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM
(DOC.154) (Doc. 156) (Werner Response); WERNER ENTERPRISES, INC.’S REPLY TO PLAINTIFF’S
RESPONSE TO WERNER ENTERPRISES, INC.’S PARTIAL MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S PUNITIVE DAMAGES CLAIM AND RESPONSE TO PLAINTIFF’S UNDISPUTED MATERIAL
FACTS (Doc.158) (Werner Reply); see also PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT SETH
FEZATTE’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES
CLAIM (DOC.157) (Doc. 160) (Fezatte Response); SETH FEZATTE’S REPLY TO PLAINTIFF’S RESPONSE TO
SETH FEZATTE’S PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE
DAMAGES CLAIM AND RESPONSE TO PLAINTIFF’S UNDISPUTED MATERIAL FACTS (Doc. 161) (Fezatte
Reply).

3

I.

BACKGROUND
A. Defendant Werner’s Hiring, Training, and Supervision of Defendant
Fezatte 15
Defendant Werner is a national trucking company with a fleet of approximately 7,300

commercial trucks operated by approximately 9,500 commercial truck drivers. Werner Mot., Ex.
A at 18:3–7. Prior to employment, Defendant Werner requires that all prospective drivers graduate
from a truck driving school and possess a commercial driver’s license (CDL). Id. at 21:1–8, 22:6–
15. All prospective drivers must also submit to a drug screening, id. at 22:10–12, 23:8–10, pass a
prior employment verification process, id. at 23:5–6, complete a physical performed by a third
party, id. at 92:4–5, and attend a two-day orientation, which consists of: (1) pretrip inspection
training; (2) computer based training; (3) driver’s hours of service training; (4) hands-on exercises
with live Qualcomm units; (5) map reading; (6) truck coupling/uncoupling; (7) Federal Motor
Carrier Safety Administration Compliance, Safety, and Accountability enforcement program; (8)
accident prevention and injury; and (10) hazard awareness. Id. at 23:8–18.
Additionally, Defendant Werner requires newly licensed drivers like Defendant Fezatte to
complete two months of over the road training with one of its professional driver trainers. Id. at
22:13–15. Defendant Werner also requires that all drivers undergo quarterly safety trainings. Id.
at 48:23–49:4. Drivers also have access to driver simulation trainings and accident prevention
trainings. Id.

15

Under Rule 56 of the Federal Rules of Civil Procedure, a party attempting to controvert a fact must do so by “citing
to particular parts of materials in the record.” Fed. R. Civ. P. 15(c)(1)(A). This District’s local rules also require that,
in a memorandum opposing summary judgment, “[e]ach fact in dispute must be numbered, must refer with
particularity by paragraph, to those portions of the record upon which the non-movant relies and must state the number
of the movant’s fact that is disputed.” D.N.M.LR-Civ. 56(b). Plaintiff disputes Defendant Werner’s facts only by
stating that they do not “establish the absence of a genuine dispute” and by citing to Federal Rule of Civil Procedure
56(c)(1)(B). As a result, the Court deems Defendant Werner’s facts undisputed.

4

Defendant Fezatte was qualified to work for Defendant Werner; he graduated from a truck
driving school and possessed a CDL. Id., Ex. B at 10:22–12:2, 15:2–7, 20:2. Defendant Fezatte
completed the two-day orientation and a three-month over the road training period with a driver
trainer (approximately one month more than the two-month minimum requirement), which
amounted to approximately 280 hours of on-duty training. Id. at 25:1–15. Prior to the incident
underlying this litigation, Defendant Werner investigated Defendant Fezatte for two possible
infractions. In June 2012, Defendant Fezatte was cited for speeding, and Defendant Werner
required that he complete speed management training. Id. at 55:15–56:16; Ex. A at 107:11–108:2.
In January 2013, Defendant Werner received a complaint that Defendant Fezatte smoked
marijuana. Id., Ex. A at 103:14–18. In response, Defendant Werner required that Defendant
Fezatte submit to a drug test, which he passed. Id. at 103:14–25; Ex. B at 51:8–13.
B. The Accident 16
On November 22, 2013, Plaintiff Derrick Yazzie was walking westbound near mile-marker
18 on Interstate 40 near Gallup, New Mexico, when he was struck by a commercial vehicle owned
by Defendant Werner and operated by Defendant Fezatte. Complaint at ¶ 5; Docs. 69 at ¶¶ 1–2;
80 at ¶¶ 3–4. Prior to the collision, on November 21, 2013, Defendant Fezatte had assumed driving
responsibilities from his brother Jaron Fezatte around 7:00 p.m. Central Standard Time (CST)
outside of Amarillo, Texas, and headed west on Interstate 40. Docs. 69 at ¶¶ 5-6; 80 at ¶ 6.
Defendant Fezatte stopped for a thirty-minute mandatory Department of Transportation break
seventeen miles east of Gallup, New Mexico, at 2:15 a.m. CST/1:15 a.m. Mountain Standard Time

16

Several relevant, undisputed facts are set forth in this Court’s MEMORANDUM OPINION AND ORDER (Doc.
102), which granted Defendants’ initial request for summary judgment on Plaintiff’s punitive damages claim. In
accordance with Federal Rule of Civil Procedure 10(c), the parties have incorporated their undisputed fact sections
from the briefing on Defendants’ initial motion for summary judgment (Doc. 69). See Werner Reply (“Werner
incorporates Mr. Fezatte’s undisputed facts in Mr. Fezatte’s [Motion]”); Fezatte Motion (“Mr. Fezatte incorporates
the undisputed fact section included in his . . . September 11, 2017, [motion]”); Resp. Fezatte Mot. (“Plaintiff also
incorporates by reference his response to Defendants’ statement of facts”). The Court recites those findings here.

5

(MST) on November 22, 2013, and resumed driving at approximately 2:50 a.m. CST/1:50 a.m.
MST. Docs. 69 at ¶¶ 7, 9; 80 at ¶ 6. Defendant Fezatte testified that as he approached Gallup,
New Mexico, it was sleeting and weather conditions were “sub-optimal.” Docs. 69 at ¶ 105; 69-3
at 90:18. Defendant Fezatte further testified that as he was driving westbound on Interstate 40 he
felt an impact but, believing he struck a deer, continued to drive. Docs. 69 ¶¶ 3, 21; 69-3 at 95:2496:6. Defendant Fezatte testified that he pulled over, assessed the damage to the tractor-trailer,
and returned to what he believed was the location of the impact to determine whether there was
anything in the road. Docs. 69 at ¶¶ 21, 23, 25-26; 69-3 at 96-97, 101-02; 80 at ¶¶ 34-38; 80-4 at
98-101. Finding nothing, he continued westbound on Interstate 40 for approximately 20 miles
before he stopped at a rest stop near the New Mexico/Arizona border to contact Werner dispatch
to discuss the accident. Werner Mot., Ex. B at 97:22–24. 17
Around this time, Ruben Cosgrove was also traveling westbound on Interstate 40 operating
another commercial vehicle ahead of Defendant Fezatte in the right lane. Docs. 69 at ¶¶ 16-17; 80
at ¶ 8. 18 Mr. Cosgrove saw a male, later identified as Plaintiff, walking backwards on the roadway
as though he were hitchhiking. Docs. 69 at ¶¶ 18-19; 80 at ¶ 8. Mr. Cosgrove contacted authorities
reporting a pedestrian on the interstate wearing a black jacket, white t-shirt, and jeans. Docs. 69
at ¶¶ 27-28; 69-4 at 21, 26, 31, 38; 69-1; 80 at ¶ 10. In response to this call, Officer Chavo Waylon
Chischilly with the Gallup Police Department was dispatched around 2:36 a.m. MST and, after
seeing Plaintiff’s shoe in the middle of the roadway, located Plaintiff lying face down in a muddy
roadside area. Docs. 69 at ¶¶ 27, 29; 69-4 at 21, 33-34; 80 at ¶ 10.

17

This fact did not appear in the Court’s original findings.
Defendant Fezatte objects to Plaintiff’s reliance on the Gallup Police Report under Federal Rule of Evidence 702
and 801(c). See Fezatte Mot. at 2. The Court is puzzled by this objection. Not only did Defendants specifically rely
on the Gallup Police Report in their initial motion for summary judgment, see Doc. 69 at ¶¶ 1, 16, 18, 27, 31, 101,
Defendants incorporate into the instant motions the undisputed material fact section from Doc. 69. Thus, the Court
deems Defendant Fezatte to have WAIVED his objection to the Gallup Police Report.

18

6

Officer J. Koon of the Holbrook Police Department was dispatched in response to an
Attempt to Locate (ATL) a blue Werner commercial vehicle with a nonoperational front headlight
as described to officers by Mr. Cosgrove. Docs. 69 at ¶ 32; 69-6 at 3. Officer Koon stopped
Defendant Fezatte. Docs. 69 at ¶ 33; 69-6. Defendant Fezatte was then interviewed in Holbrook,
Arizona, by Detective Victor Rodriguez from the Gallup Police Department. Docs. 69 at ¶ 39; 697 at 16-17.
After the accident, Defendant Werner required Defendant Fezatte to complete a virtual
training assessment. Werner Mot., Ex. B at 27:4–20. 19
C. The Ramay Affidavit and Criminal Charges
Defendant Fezatte resigned from Werner in July 2014. Resp. Fezatte Mot., Ex. 3 at 20:911. Sometime after, he began working at Aaron’s Rent to Own Furniture, and in January 2018,
Kimberly Ramay became his co-worker. Fezatte Mot., Attach. 6 at 26:2–9. 20 Defendant Fazette
and Ms. Ramay shared the same job duties, including making field visits together. Id. at 26:11–
23. On April 3, 2018, Ms. Ramay executed an affidavit which, among other things, alleged that
during a field visit with Defendant Fezatte, he stated that “he killed a person . . . but that it didn’t
[sic] matter because it was one less Native American. [Defendant] Fezatte [stated] that he saw the
person before he hit him, and that he knew he had hit a person.” Id., Attach. 5 at 1–2. As a result
of the affidavit, Defendant was charged in the McKinley County Magistrate Court in Gallup, New
Mexico, with Great Bodily Harm by Motor Vehicle and Accident Involving Death or Personal

19

This fact did not appear in the Court’s original findings.
Defendant Fezatte commenced numbering the exhibits attached to the Fezatte Motion at 15, which continues the
numbering convention Defendants utilized in their initial motion for summary judgment (Doc. 69). Under this
convention, Attachment 1 correlates to exhibit 15. However, Defendant Werner does not employ this convention in
the Werner Motion nor does Plaintiff in his responses. Therefore, for clarity the Court will cite to the evidence
appended to the Fezatte Motion as attachments beginning with attachment 1 rather than exhibits beginning with exhibit
15.
20

7

Injuries. Id., Attach. 1. Ultimately, Defendant Fezatte pleaded guilty to a lesser offense of Careless
Driving. Id., Attach. 2. 21
II.

LEGAL STANDARD
A court may 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). When applying this standard, the Court examines the factual record and reasonable
inferences in the light most favorable to the party opposing summary judgment. Applied Genetics
Intl, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “Once the moving
party has met its burden, the burden shifts back to the nonmoving party to show that there is a
genuine issue of material fact.” Jensen v. Kimble, 1 F.3d 1073, 1077 (10th Cir. 1993) (citing
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). Disputes are
genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the
issue either way,” and they are material “if under the substantive law it is essential to the proper
disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (further
citation and internal quotation marks omitted). “A plaintiff ‘cannot avoid summary judgment
merely by presenting a scintilla of evidence to support her claim; she must proffer facts such that
a reasonable jury could find in her favor.’” Milne v. USA Cycling Inc., 575 F.3d 1120, 1130 (10th
Cir. 2009) (quoting Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009)
(further citation omitted)).

21

Plaintiff objects under Federal Rule of Evidence 401 and 403 to all facts surrounding the criminal case. Plaintiff
argues that, “because the legal and evidentiary standards in determining whether to seek and prosecute felony criminal
charges against him for his conduct arising out of the incident are not the same as the legal and evidentiary standards
presented here and so is not relevant to the issues the jury will decide in this case, or any probative value is outweighed
by the dangers of misleading the jury or confusing the issues that are for the jury to decide in this case.” Resp. Fezatte
Mot. at 4. The Court disagrees. While the standards are indeed different, all facts relating to Defendant Fezatte’s
mental state regarding the November 22, 2013, accident are relevant to the punitive damages inquiry, and outweigh
any prejudicial effect the evidence might have on the jury. Therefore, the Court will OVERRULE Plaintiff’s
objection.

8

“[I]n a federal diversity action, the district court applies state substantive law—those rights
and remedies that bear upon the outcome of the suit—and federal procedural law—the processes
or modes for enforcing those substantive rights and remedies.” Los Lobos Renewable Power, LLC
v. Americulture, Inc., 885 F.3d 659, 668 (10th Cir. 2018). Accordingly, the Court will apply the
substantive law of New Mexico.
III.

ANALYSIS
A. Werner Motion
1. Parties’ Arguments
Defendant Werner contends that a punitive damage award is inappropriate because the

undisputed facts demonstrate that it did not possess the requisite mental state meriting punishment
and deterrence. Werner Mot. at 1. Specifically, Defendant Werner argues that Defendant Fezatte
was not employed in a managerial capacity nor did it ratify his conduct. Id. at 8–10. Defendant
Werner also maintains that nothing was infirm about the cumulative conduct of it or its employees
such that a culpable mental state could be inferred. Id. at 11–13.
For his part, Plaintiff concedes that Defendant Fezatte was not acting in a managerial
capacity and that Defendant Werner did not ratify Defendant Fezatte’s conduct. See Resp. Werner
Mot. at 1, 17–18. Instead, Plaintiff asserts only that Defendant Werner’s cumulative actions,
including that of Defendant Fezatte, establish a culpable mental state sufficient to impose punitive
damages. Id. at 17–23.
2. Defendant Werner did not Act with a Culpable State of Mind
New Mexico has a “general rule that punitive damages are not imposed on an employer for
the acts of an employee as a matter of simple respondeat superior.” Grassie v. Roswell Hosp.
Corp., 258 P.3d 1075, 1086 (N.M. 2011). “Rather, there must be proof in some form of the

9

employer’s own culpable state of mind and conduct.” Id. The New Mexico Supreme Court has
explained that
[a] corporation may be held liable for punitive damages for the misconduct of its
employees if: (1) corporate employees possessing managerial capacity engage in
conduct warranting punitive damages; (2) the corporation authorizes, ratifies, or
participates in conduct that warrants punitive damages; or (3) under certain
circumstances, the cumulative effects of the conduct of corporate employees
demonstrate a culpable mental state warranting punitive damages.
Carrillo v. Copper Sols. & Servs., LLC, 2020 WL 1845119, at *10 (N.M. Ct. App. Mar. 10, 2020)
(unpublished) (quoting Chavarria v. Fleetwood Retail Corp., 143 P.3d 717, 725 (N.M. 2006)).
Given that Plaintiff concedes that the first two categories do not apply, the Court will focus
on the third, whether the cumulative effects of the conduct of Defendant Werner’s employees
demonstrate that it acted with a culpable mental state. Unfortunately for Plaintiff, however, two
New Mexico cases (and a Kentucky case) illustrate that no material fact issues exist regarding
corporate culpability; therefore, Defendant Werner is entitled to judgment as a matter of law on
Plaintiff’s punitive damage claim against it.
In Clay v. Ferrellgas, Inc., 881 P.2d 11, 14 (N.M. 1994), the New Mexico Supreme Court
adopted the test that allows a court to examine the cumulative conduct of employees to determine
a corporate entity’s mental state. The New Mexico Supreme Court heavily relied on a decision
issued by the Supreme Court of Kentucky, which awarded punitive damages against a gas
company after a house exploded due to a gas leak. Id. at 15 (discussing Horton v. Union Light,
Heat & Power Co., 690 S.W.2d 382, 389 (Ky. 1985)). In Horton, the plaintiff presented evidence
that a gas company’s employees failed to (1) inspect a house after being notified that there was an
odor of gas, (2) turn off the gas line, and (3) evacuate the house’s occupants. 690 S.W.2d at 386.
Moreover, evidence showed that prior to the explosion the gas company failed to establish an
appropriate emergency plan regarding gas leaks—even after Kentucky’s chief utility inspector
10

urged it to do so. Id. at 387. The Horton court determined that the negligence of employees,
coupled with the fact that the gas company ignored repeated suggestions to revise its investigatory
procedures, constituted conduct of corporate wantonness or recklessness. Id. at 388. The Horton
court stressed, however, that it was not finding potential liability for punitive damages based on a
single, isolated, unauthorized, and unexpected act of negligence by an employee. Id. at 390. In
such a circumstance, a corporate entity could not be punished vicariously. Id.
With this guidance, the New Mexico Supreme Court determined that the “acts of the
employees should be viewed cumulatively to determine the mental state of a corporation.”
Ferrellgas, Inc., 881 P.2d at 16. In Ferrellgas, a vehicle converted by Ferrellgas to run on propane
exploded when gas leaked from a faulty valve located inside the trunk. Id. at 13. The evidence,
which supported an award for punitive damages, included: a corporate policy (or lack thereof)
that allowed employees to be ignorant of the acts or omissions of other employees despite the fact
that in all probability this ignorance would result in severe harm; Ferrellgas allowed its employees
to violate state law by improperly installing equipment; and Ferrellgas authorized or participated
in an employee's continuing failure to file proper inspection forms. Id. at 16–17 (quotations
omitted). This evidence demonstrated that Ferrellgas had a “cavalier attitude toward safety
regulation.” Id. at 17. Thus, the New Mexico Supreme Court concluded that “the high risk of
harm that accompanies the handling of propane gas, the negligence of [two employees] and regular
violation of safety regulations by Ferrellgas amounts to corporate indifference and reckless
conduct.” Id.
In a more recent and less explosive case, the New Mexico Court of Appeals also upheld an
award of punitive damages under the third category. In Carrillo v. Copper Sols. & Servs., LLC,
2020 WL 1845119 (N.M. Ct. App. Mar. 10, 2020), a Copper Solutions employee driving a semi-

11

truck with a flat-bed trailer rear-ended a pickup truck causing it to cross over the median, which
in turn, caused a head-on collision with the plaintiff, who was driving a semi-truck in the opposite
direction. 2020 WL 1845119 at *1. The evidence demonstrated that Copper Solutions failed to
comply with its internal checklist of required qualifications for new drivers. Id. at *10. This
resulted in Copper Solutions failing to obtain the employee’s driving records and safety
performance history from his previous employers. Id. In addition, despite the employee having
limited proficiency in English, Copper Solutions nonetheless conducted its entry level training and
administered driving proficiency tests in English. Id. The evidence also showed that Copper
Solutions’ office manager and secretary failed to adequately keep the employee files and/or
confirm that information was properly contained in the employee files and failed to maintain the
company’s Department of Transportation information. Id. at *11. The court concluded that, when
considered in conjunction with the danger presented by operating a commercial vehicle, the
evidence provided a sufficient basis for the jury to conclude that Copper Solutions’ conduct with
regard to its employee’s training and supervision showed a willful and/or reckless disregard for its
managerial responsibilities. Id.
Unlike Ferrellgas, Horton, and Copper Solutions, Plaintiff’s evidence falls short of the
quantum necessary to infer corporate culpability. Plaintiff simply states that “[a] jury may also
conclude from the evidence Defendant Werner’s subsequent failure to take action against
Defendant Fezatte, and corporate indifference to Fezatte’s conduct and its failure to challenge his
transparently false statements as to what actually took place” is sufficient for a punitive damage
award. Resp. Fezatte Mot. 21. However, these bare accusations are completely unsupported the
evidence. To be sure, in contrast to Ferrellgas, Horton, and Copper Solutions, the undisputed
facts show that Defendant Werner adequately investigated and trained Defendant Fezatte before

12

allowing him to drive for the company. See Werner Mot., Ex. A, passim.

The evidence also

shows that Defendant Werner communicated with Defendant Fezatte after the accident, id., Ex. B
at 97:22–24, and required him to attend a training as a result of the accident. Id. at 27:4–20. And
unlike Ferrellgas, Horton, and Copper Solutions, the evidence does not show that Defendant
Werner failed to follow its own policies or procedures. Nor does it establish that any acts or
omissions by Defendant Werner contributed to the accident. Plaintiff’s accusation that Defendant
Werner failed to investigate the accident or challenge Defendant Fezatte’s testimony is
unsupported by the record and irrelevant to the inquiry. Finally, even assuming Defendant
Fezatte’s conduct was malicious, there is no “cumulative conduct” of any other employees—only
the conduct of Defendant Fezatte on the day of the accident.
Simply put, Plaintiff fails to create a fact issue that demonstrates that Defendant Werner
had a “cavalier attitude toward safety regulation.” Holding otherwise would allow for the
imposition of punitive damages against a corporate entity based on a single, isolated, unauthorized,
and unexpected act by an employee. The Court will grant Defendant Werner’s Motion.
B. Fezatte Motion
1. Parties’ Arguments
Defendant Fezatte argues that the material facts surrounding the November 22, 2013,
accident have remained unchanged, irrespective of the Ramay affidavit and deposition. Fezatte
Mot. at 7–11. To support this proposition, Defendant Fezatte still relies on his own deposition, the
deposition of Officer Chischilly, and the deposition of Detective Rodriguez. Id. Additionally,
Defendant Fezatte relies on new evidence that stems from the resolution of the intervening criminal
case. Id. at 9. Defendant believes that this new evidence demonstrates an absence of culpability
because during the plea hearing the prosecutor (1) admitted that the State would have evidentiary

13

issues proving the original charges at trial (Great Bodily Harm by Motor Vehicle and Accident
Involving Death or Personal Injuries) and (2) failed to object to the factual basis that supported his
guilty plea to the lesser charge of Careless Driving. Id. Second, Defendant Fezatte maintains that
the lesser charge of Careless Driving demonstrates that, at worst, he “did not act with slight care.”
Id. Lastly, Defendant Fezatte argues that, because Detective Rodriguez assessed his testimony as
credible during the initial investigation of the November 22, 2013, accident, i.e., that Defendant
Fezatte believed that he hit a deer, the Ramay evidence cannot create a fact issue. Id. at 11.
Conversely, Plaintiff argues that the Ramay evidence creates a fact issue that precludes
summary judgment on punitive damages. Resp. Fezatte Mot. at 19–21. Plaintiff relies on the
Ramay affidavit and deposition to demonstrate that Defendant Fazette “deliberately and/or
recklessly struck Plaintiff,” “provided false testimony—and continues to provide false testimony,”
and “willfully, wantonly, and recklessly left the scene of the accident.” Id. at 22–23.
2. There is a genuine issue of material fact regarding Defendant Fezatte’s mental
state
Under New Mexico law, negligent conduct alone is insufficient to support a finding of
punitive damages. Rather, “[t]o be liable for punitive damages, a wrongdoer must have some
culpable mental state, and the wrongdoer’s conduct must rise to a willful, wanton, malicious
reckless, oppressive, or fraudulent level[.]” Ferrellgas, Inc., 881 P.2d at 14 (internal citations
omitted); see also NMRA, Civ. UJI 13-1827 (instructing that punitive damages may be awarded
against the tortfeasor if that person’s conduct “was malicious, willful, reckless, wanton, fraudulent
or in bad faith”). The New Mexico Uniform Jury Instruction (UJI) 13-1827 further defines these
terms:
Malicious conduct is the intentional doing of a wrongful act with the knowledge
that the act was wrongful. Willful conduct is the intentional doing of an act with
the knowledge that harm may result. Reckless conduct is the intentional doing of
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an act with utter indifference to the consequences. When there is a high risk of
danger, conduct that breaches the duty of care is more likely to demonstrate
recklessness. Wanton conduct is the doing of an act with utter indifference to or
conscious disregard for a person’s safety.
In the Court’s February 14, 2018, Memorandum Order and Opinion it ruled in favor of
Defendant Fezatte because Plaintiff failed to “cite[] to any deposition testimony or other evidence
to raise an issue regarding whether Defendant Fezatte’s conduct was ‘malicious, willful, reckless,
wanton, fraudulent, or in bad faith.’” Doc. 102 (quoting NMRA, Civ. UJI 13–1827). However,
because the punitive damages argument was not adequately addressed by the parties, the Court
granted Plaintiff’s Motion to Reconsider, which essentially was a mislabeled request to file a
surreply. See Doc. 124 (“If requested, the Court would have given Plaintiff a chance to file a
surreply and address the argument raised in the MSJ Reply brief. Although Plaintiff failed to ask
for leave to file a surreply, but instead filed the Motion to Reconsider, the Court will allow Plaintiff
a chance to brief the issue.”).
Now that the argument is fully developed, it is clear that Plaintiff does proffer sufficient
evidence to create a fact issue regarding Defendant Fezatte’s culpability. At bottom, Defendant
Fezatte believes the Ramay affidavit and testimony cannot create a fact issue because it is
inconsistent with the record. For this proposition, Defendant Fezatte again relies on his own
deposition, the deposition of Officer Chischilly, the deposition of Detective Rodriguez, 22 and the
transcript from the sentencing/plea hearing.

Defendant Fezatte believes that this evidence

22
Among other things, Defendant Fezatte argues that Detective Rodriguez testified that Defendant Fezatte did not act
intentionally or purposefully. Fezatte Mot. at 8 (citing Doc. 69–7 at 29:17–21 (Rodriguez deposition taken on May
16, 2017)). Interestingly, Detective Rodriguez was also the affiant for the Statement of Probable Cause filed on
November 19, 2018, that served as the basis for the criminal complaint, which he filed that same day. See Docs. 157–
1 (criminal complaint), 4 (statement of probable cause) (“I believe probable cause exists to charge Defendant Seth E.
Fezatte with the crimes of great bodily harm by motor vehicle”).

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establishes (1) that he believed that he hit a deer rather than a person, Mot. at 7 (citing Doc. 157–
3 (Ex. 3)), and (2) that he did not do so intentionally or purposefully. Id. at 8–9. (citing Ex. 7).
Unfortunately for Defendant Fezatte, it is the inconsistencies created by the Ramay
affidavit and testimony that preclude summary judgment. For an award of punitive damages
Defendant Fezatte’s conduct must rise to a willful, wanton, malicious, reckless, oppressive, or
fraudulent level. He proffers evidence that shows that he believed that he hit a deer, therefore he
possessed no ill intent. The Ramay affidavit alleges that Defendant Fezatte “saw [Plaintiff] before
he hit him, and that he knew he had hit a person.” Resp. Fezatte Mot., Ex. 4–A. The Ramay
deposition clarifies that Defendant Fezatte “swerved over and hit” Plaintiff and that Defendant
Fezatte “told [Ramay] that he’d [sic] done it on purpose.” Id., Ex. 4. These allegations create a
fact issue on Defendant Fezatte’s culpability, i.e., whether he hit Plaintiff with a culpable mental
state or whether it was just an accident not rising to a willful, wanton, malicious, reckless,
oppressive, or fraudulent level. 23 To finish, Defendant Fezatte’s contentions that the Ramay
evidence cannot override the credibility findings of Detective Rodriguez and that the criminal
matter establishes that Defendant Fezatte acted with an innocent mental state are misplaced. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge”).
IV.

CONCLUSION
Plaintiff has failed to create a genuine issue of material fact as to Defendant Werner’s

culpability for punitive damages. Holding otherwise would amount to imposing punitive damages

23

Because the Ramay affidavit and deposition testimony create a fact issue on punitive damages, the Court need not
address other implicit arguments made by Plaintiff, including that Defendant Fezatte was culpable because driving a
semi-truck is inherently dangerous, that he was driving during inclement weather, or that he fled the scene.

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on a corporate entity under a simple respondeat superior theory. New Mexico law requires more.
Consequently, Plaintiff’s claim for punitive damages against Defendant Werner cannot proceed as
a matter of law. But the same is not true for Plaintiff’s claim against Defendant Fezatte. The
Ramay affidavit and her deposition testimony create a fact dispute as to whether Defendant Fezatte
acted willfully, wantonly, maliciously, or recklessly when he hit Plaintiff with his truck. Thus, the
Court will deny Defendant Fezatte’s Motion.
IT IS THEREFORE ORDERED THAT Defendant Werner’s PARTIAL MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 154) is
GRANTED and Defendant Fezatte’s PARTIAL MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 157) is DENIED.

________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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