Ferrell et al v. BGF Global LLC et al

Filing 64

ORDER granting 31 Motion for Partial Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 8/18/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TRUDY FERRELL, Individually
and as Personal Representative of
the ESTATE OF GREGORY
FERRELL, deceased,
Plaintiff,
v.
BGF GLOBAL, LLC, et al.,
Defendants.

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Case No. CIV-15-404-D

ORDER
Before the Court is Defendant BGF Global, LLC’s (BGF) Motion for Partial
Summary Judgment [Doc. No. 31]. Plaintiff Trudy Ferrell, individually and as
personal representative of the Estate of Gregory Ferrell, deceased, has filed her
response in opposition [Doc. No. 32]. The matter is fully briefed and at issue.
BACKGROUND
This action is the result of a collision at the intersection of S.E. 15th and S.
Eastern Ave. in Oklahoma City between Plaintiff’s husband, Gregory Ferrell, and
Defendant Lawrence Dildine in which Mr. Ferrell suffered fatal injuries. At the
time of the collision, Dildine was employed as a truck driver for BGF. Plaintiff
alleges Dildine was traveling at an unsafe speed when he came upon a yellow light
at the intersection, and instead of adhering to federal regulations regarding safety

in the operation and handling of a tractor trailer, chose to honk his horn and enter
the intersection on a red light. Mr. Ferrell entered the intersection on a green light
and collided with Dildine. Plaintiff alleges, among other things, that BGF is
independently liable to Plaintiff for negligent hiring, training, re-training,
supervision, retention, and entrustment.
The undisputed facts relevant to the present motion are brief and concise.
Plaintiff alleges that, at the time of the accident, Dildine was an employee of BGF
and acting within the scope of his employment. BGF admits Dildine was its
employee and acting within the scope of his employment when the accident
occurred. BGF, however, contends that pursuant to the Oklahoma Supreme Court’s
decision in Jordan v. Cates, 1997 OK 9, 935 P.2d 289, it bears no separate and
independent liability to Plaintiff stemming from the accident. Plaintiff contends
Defendant’s reliance on Jordan is misplaced in that it only precludes a plaintiff’s
double recovery, but not the pursuit of alternate theories of recovery.
DISCUSSION
The issue before the Court presents a pure question of law appropriate for
resolution by summary judgment. Summary judgment is proper “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.” Adair v. City of Muskogee, 823 F.3d 1297,
1304 (10th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). “To survive a motion for
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summary judgment, a nonmoving party ‘must set forth specific facts showing that
there is a genuine issue for trial as to those dispositive matters for which he [or
she] carries the burden of proof.’ ” Christy v. Travelers Indem. Co. of Am., 810
F.3d 1220, 1233 (10th Cir. 2016) (citations omitted). Summary judgment “is
properly regarded not as a disfavored procedural shortcut, but rather as an integral
part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy
and inexpensive determination of every action.’ ” Burnette v. Dow Chemical Co.,
849 F.2d 1269, 1273 (10th Cir. 1988) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986)).
In Jordan, a store visitor was involved in an altercation with an employee of
the store. Id. at 291. The visitor alleged that during the course of the altercation, the
employee assaulted and battered him. Id. He sought to recover against the store, as
the employer of the offending employee, for its vicarious liability under the theory
of respondeat superior. Id. Additionally, he brought a separate claim directly
against the store for the negligent hiring and retention of the employee. Id.
Recognizing the required elements to confer respondeat superior liability, the
employer stipulated that the altercation occurred while its employee was acting
within the scope of his employment and that it would be liable for any damages
awarded by the jury. Id. at 292. In light of this admission, the trial court granted
summary judgment to the employer on the negligent hiring and retention claim. Id.
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The Oklahoma Supreme Court upheld the grant of summary judgment, concluding
that:
[T]he theory of negligent hiring and retention is available in a
nonvicarious liability case or in a case where vicarious liability has
not been established. In the case at bar, vicarious liability has been
established through stipulation .... Our holding today is limited to
those situations where the employer stipulates that liability, if any,
would be under the respondeat superior doctrine, thereby making any
other theory for imposing liability on the employer unnecessary and
superfluous. Because vicarious liability can include liability for
punitive damages, the theory of negligent hiring and retention imposes
no further liability on the employer.
Id. at 293. In a second published opinion issued two years after Jordan, the
Oklahoma Supreme Court reiterated this limitation on employer liability, holding:
while “[e]mployers may be held liable for negligence in hiring, supervision or
retaining an employee[,] th[is] theory of recovery is available if vicarious liability
is not established.” N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 20, 998
P.2d 592, 600.
Based on this clear pronouncement of Oklahoma law, the Court finds BGF’s
motion should be granted. The issue presented in BGF’s motion – the availability
of independent claims for negligence against an employer who admits respondeat
superior liability – is not novel to the Court. This Court, and other federal courts in
this district and Oklahoma have applied Jordan to negligence claims such as those
asserted by Plaintiff, and have held such claims were similarly barred. See, e.g.,
Simpson v. Kaya, No. CIV-10-1093-D, 2012 WL 3518037, at *3 (W.D. Okla. Aug.
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15, 2012) (“Because Defendant has stipulated to its liability for Mr. Kaya’s
conduct, Plaintiff’s negligence claim based on Defendant’s own conduct is
unnecessary and superfluous. For these reasons, the Court finds that Defendant is
entitled to summary judgment on Plaintiff’s negligent hiring and entrustment
theories.”); Oliver v. Soto., No. CIV-15-1106-R, 2016 WL 815343, at **1-2 (W.D.
Okla. Feb. 29, 2016) (collecting cases). Moreover, the Court has rejected similar
attempts to distinguish Jordan. See Avery v. Roadrunner Transp. Services, Inc.,
No. CIV-11-1203-D, 2012 WL 6016899, at *3 (W.D. Okla. Dec. 3, 2012):
Plaintiff’s contentions ... are unpersuasive. First, the mere fact that
negligent TSE/R is a recognized and independent cause of action
under Oklahoma law is immaterial to the question concerning under
what circumstances it may be maintained in a given lawsuit. Jordan
speaks to this question, holding that when vicarious liability is
established Oklahoma law does not permit a plaintiff to also proceed
against an employer on a negligent TSE/R claim. ... Second ... the fact
that a plaintiff may plead claims in the alternative is immaterial to
whether a defendant is subsequently entitled to judgment as a matter
of law on any one particular claim. Again, Jordan addresses the very
question of when summary judgment is appropriate, concluding that
additional theories of recovery against an employer are redundant
when that employer stipulates that it will be vicariously liable for the
actions of its employee.
Although Plaintiff contends other courts have ruled there are exceptions to
Jordan, the Court finds its “determination is supported by the majority of
authorities addressing the issue under Oklahoma law.” Id. (citing cases). Thus,
“[a]bsent a clear deviation from this established legal principle by the highest court

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in Oklahoma,” Plaintiff’s claims of negligent hiring, training, re-training,
supervision, retention, and entrustment will not be permitted to proceed.
CONCLUSION
BGF’s Motion for Partial Summary Judgment [Doc. No. 31] is GRANTED
as set forth herein.
IT IS SO ORDERED this 18th day of August, 2016.

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