Fisher et al v. National Progressive Inc et al

Filing 267

ORDER granting 185 Motion of National Progressive, d/b/a Best-1Trucking for Partial Summary Judgment on the Issues of Negligent Hiring, Training, Supervision, Retention and Entrustment. Signed by Honorable Robin J. Cauthron on 12/29/14. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
HOLLY FISHER,
Plaintiff,
vs.
NATIONAL PROGRESSIVE, INC.
d/b/a BEST-1 TRUCKING; GERARDO
BEDOLLA; VIDA CORPORATION;
J.B. HUNT TRANSPORT, INC.; and
JMTT, INC.,
Defendants.

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No. CIV-12-853-C

MEMORANDUM OPINION AND ORDER
Before the Court is the Motion of Defendant National Progressive, Inc. d/b/a Best-1
Trucking for Partial Summary Judgment on the Issues of Negligent Hiring, Training,
Supervision, Retention and Entrustment (Dkt. 185). Plaintiff filed a Response (Dkt. No.
194), and Defendant did not reply. The motion is now at issue.
I. BACKGROUND
This cause of action arises out of a motor vehicle collision on March 30, 2012,
between a tractor trailer involved in interstate commerce and Plaintiff’s Ford Explorer.
Defendant Gerardo Bedolla, the driver of the tractor trailer, was transporting a shipment of
electronics from Rhode Island to California when he pulled the truck onto the right-hand
shoulder of westbound Interstate-40 and came to a stop near Sayre, Oklahoma. Shortly after
Bedolla merged back onto the highway, Plaintiff collided with the rear of the trailer. Plaintiff
alleges Bedolla’s negligent driving caused the collision. Bedolla was an independent

contractor of Defendant National Progressive, Inc. d/b/a Best-1 Trucking (“NPI”). NPI has
stipulated that Bedolla was an employee of NPI who was acting within the course and scope
of his employment at the time of the collision.
II. STANDARD OF REVIEW
Summary judgment is properly granted if the movant shows that no genuine dispute
as to any material fact exists and that the movant “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial burden of
demonstrating the basis for its motion and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any,” that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). A fact is material if it affects
the disposition of the substantive claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 247, 248
(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 289 (1968)). When considering a motion for summary judgment,
a court must “‘view the evidence and draw reasonable inferences therefrom in the light most
favorable to the nonmoving party.’” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,
1225 (10th Cir. 2000) (quoting Simms v. Oklahoma ex rel. Dep’t of Mental Health &
Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), abrogated on other grounds
by Eisenhour v. Weber Cnty, 739 F.3d 496 (10th Cir. 2013)).
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III. ANALYSIS
Defendant argues the Court must grant partial summary judgment in its favor because
Oklahoma law forecloses claims of negligent hiring, training, supervision, retention, and
entrustment against a defendant who has stipulated to potential liability under the doctrine
of respondeat superior.
The Oklahoma Supreme Court has held that “the negligent-hiring theory imposes no
additional liability on the employer where it stipulates its employee was acting within the
scope of his employment when the harm-dealing altercation occurred.” Jordan v. Cates,
1997 OK 9, ¶ 1, 935 P.2d 289, 291. Defendant NIP has stipulated that Defendant Bedolla
was its employee and that Defendant Bedolla was acting within the course and scope of his
employment with NIP at the time of the collision. (Def.’s Br., Dkt. No. 185, at 2.) Under
Oklahoma law, where a defendant stipulates to vicarious liability “any other theory for
imposing liability on the employer [is] unnecessary and superfluous.” Jordan, 1997 OK 9,
¶ 16, 935 P.2d at 293.
Plaintiff argues that case law established after Jordan is unclear and that Jordan only
forecloses direct liability claims against an employer where the employee committed an
intentional tort. The Court finds neither argument persuasive. Jordan set a clear precedent
for courts to follow, and the Oklahoma Supreme Court reiterated its ruling two years later.
See N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 20, 998 P.2d 592, 600
(“Employers may be held liable for negligence in hiring, supervising or retaining an
employee. . . . In Oklahoma, the theory of recovery is available if vicarious liability is not
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established.”). Furthermore, a determination that Oklahoma law forecloses Plaintiff’s direct
liability claims “is supported by the majority of authorities addressing the issue under
Oklahoma law.” Avery v. Roadrunner Transp. Servs., Inc., No. CIV-11-1203-D, 2012 WL
6016899, *3 (W.D. Okla. Dec. 3, 2012) (citing Johnny v. Bornowski, No.
10-04008-CV-FJG, 2012 WL 13723, *2 (W.D. Mo. Jan. 4, 2012); Dowuona-Hammond v.
Integris Health, No. CIV-10-965-C, 2011 WL 134923, *3 (W.D. Okla. Jan. 14, 2011);
Landreville v. Joe Brown Co., Inc., No. CIV-08-171-KEW, 2009 WL 1437801, *3 (E.D.
Okla. May 21, 2009); Aldridge v. Indian Elec. Co-op., No. 07-CV-633-HDC-PJC, 2008 WL
1777480, *8 (N.D. Okla. Apr. 17, 2008)). This Court already has rejected Plaintiff’s
argument that Jordan is limited to claims based on employees’ intentional torts. See Avery,
No. CIV-11-1203-D, 2012 WL 6016899, *3 (“Jordan is not limited to cases involving
intentional torts.”); see also Bryson v. Sierra Metals, Inc., No. CIV-12-839-C, 2013 WL
1397826, *1 (W.D. Okla. Mar. 25, 2013) (describing the distinction as “artificial”).
Because Defendant NPI has stipulated to vicarious liability, Plaintiff’s claims of
negligent hiring, training, retention, supervision, and entrustment cannot prevail under
Oklahoma law.

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IV. CONCLUSION
Accordingly, the Court GRANTS the Motion of National Progressive, d/b/a Best-1
Trucking for Partial Summary Judgment on the Issues of Negligent Hiring, Training,
Supervision, Retention and Entrustment (Dkt. No. 185).
IT IS SO ORDERED this 29th day of December, 2014.

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