Ferrell et al v. BGF Global LLC et al

Filing 86

ORDER denying 71 Motion for Certificate of Appealability. Signed by Honorable Timothy D. DeGiusti on 12/28/2016. (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
Pursuant to Rule 54(b), of the Federal Rules of Civil Procedure, Plaintiff
moves for a certificate of appealability with respect to the Court’s order granting
Defendant BGF Global, LLC’s (BGF) Motion for Partial Summary Judgment
[Doc. No. 64]. BGF and Defendant Lawrance Dildine oppose the request [Doc.
No. 74]. 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.
BGF admitted Dildine was its employee and acting within the scope of his
employment at the time of the accident. However, BGF contended it bore no
separate and independent liability to Plaintiff stemming from the accident,
specifically, for the torts of negligent hiring, training, re-training, supervision,
retention, and entrustment, and moved for summary judgment on that basis. The
Court granted BGF’s motion, holding that under Oklahoma precedent, independent
claims for negligence are not available against an employer who admits respondeat
superior liability. See Order of Aug. 18, 2016 at 4-6 [Doc. No. 64].
DISCUSSION
Plaintiff now moves for Rule 54(b) certification to appeal the Court’s Order.
“The purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering
judgment on a distinctly separate claim or as to fewer than all of the parties until
the final adjudication of the entire case by making an immediate appeal available.”
Oklahoma Turnpike Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001)
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(internal citations and quotation marks omitted). However, the standard for
certification under Rule 54(b) is not easily met:
[A] certification under Rule 54(b) is only appropriate when a district
court adheres strictly to the rule’s requirement that a court make two
express determinations. First, the district court must determine that the
order it is certifying is a final order. Second, the district court must
determine that there is no just reason to delay review of the final order
until it has conclusively ruled on all claims presented by the parties to
the case.
Id. at 1242 (internal citations omitted). “[A] judgment is not final for purpose of
Rule 54(b) unless the claims resolved are distinct and separable from the claims
left unresolved.” Id. at 1243. Courts focus on two factors in determining
separability: “(1) the factual overlap (or lack thereof) between the claims disposed
of and the remaining claims, and (2) whether the claims disposed of and the
remaining claims seek separate relief.” Id. at 1242 (quoting Moore’s Federal
Practice 3d § 202.06 [2]).
Plaintiff contends the claims at issue against BGF are separate and distinct
from the ones remaining, and therefore final judgment should be entered as to
these claims. See Mot. at 3. The Court disagrees. Under Oklahoma law, the
doctrine of respondeat superior holds a corporation, as employer, liable for the
torts of its employees acting within the scope of employment. Magnum Foods, Inc.
v. Continental Cas. Co., 36 F.3d 1491, 1499 (10th Cir. 1994). Plaintiff’s remaining
claims allege Dildine was negligent in that he, among other things, (1) failed to
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keep a proper lookout; (2) drove at a high rate of speed; (3) failed to timely apply
his brakes; and (4) failed to operate his vehicle in a safe and prudent manner.
Petition at 6-7 [Doc. No. 1-2]. Plaintiff’s dismissed negligence claims against BGF
asserted, inter alia, that it owed a duty to not permit its vehicle to be driven by a
person it knew, or reasonably should have known, to be an incompetent or reckless
driver. Id. at 10. Plaintiff contended BGF owed a duty to properly train and teach
Dildine how to properly operate a tractor trailer, id., and BGF was negligent in
hiring and retaining someone it knew to be incompetent and/or reckless. Id. at 1011. Plaintiff also alleged that Dildine and BGF’s negligent acts were the proximate
cause of the injuries to the decedent. Id. at ¶¶ 46, 61. Lastly, Plaintiff contends
“BGF ... [is] responsible under respondeat superior, and vicariously liable for any
damages resulting from any negligence accomplished by Defendant Dildine, an
employee and individual under [its] management, direction, and control[.]” Id. at
14-15.
BGF’s liability turns on the threshold determination of whether Dildine was
negligent. As shown above, the claims resolved on BGF’s summary judgment
motion and Plaintiff’s remaining claims arise from the same operative facts,
involve significant factual overlap, and seek to recover for the same underlying
injury. Accordingly, the Court finds its Order granting BGF’s Motion for Partial

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Summary Judgment does not constitute a “final order” for purposes of certification
under Rule 54(b) and Plaintiff’s motion should be denied.
CONCLUSION
Plaintiff’s Motion for a Certificate of Appealability Pursuant to Federal Rule
of Civil Procedure 54(b) [Doc. No. 71] is DENIED as set forth herein.
IT IS SO ORDERED this 28th day of December, 2016.

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