Fuller v. Werner Enterprises Inc et al
Filing
67
MEMORANDUM OPINION AND ORDER granting 55 Motion for Summary Judgment, filed by Werner Enterprises Inc. Plaintiff's direct liability claims against Defendant Werner are DISMISSED WITH PREJUDICE. (Ordered by Magistrate Judge Renee Harris Toliver on 7/24/2018) (aaa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SEPTEMBER LEE FULLER,
Plaintiff,
v.
WERNER ENTERPRISES, INC., et al.,
Defendants.
§
§
§
§ Civil Action No. 3:16-CV-2958-BK
§
§
§
MEMORANDUM OPINION AND ORDER
The parties have consented to proceed before a magistrate judge. Doc. 6. Now before
the Court is Defendant Werner Enterprises, Inc.’s Motion for Partial Summary Judgment, Doc.
55. For the reasons stated herein, Defendant’s motion is GRANTED.
I. BACKGROUND
This case arises out of a highway automobile accident that occurred in the early morning
hours of February 28, 2015 in Hopkins County, Texas (the “Accident”). 1 Doc. 55 at 1.
Defendant Gregory George Hittner (“Hittner”) was operating a tractor-trailer owned by
Defendant Werner Enterprises (“Werner”). Doc. 55 at 1. Due to icy conditions, Hittner’s
tractor-trailer “jackknifed,” blocking multiple lanes of traffic. Doc. 55 at 1-2. Several
automobiles subsequently collided with the tractor-trailer, including one driven by Plaintiff.
Doc. 55 at 2. As a result of the collision, Plaintiff alleges that she suffered “severe and
debilitating” injuries. Doc. 14 at 4.
Based on these allegations, Plaintiff asserted claims against Werner for (1) vicarious
liability premised on Hittner’s allegedly negligent operation of the tractor-trailer, and (2) direct
Unless otherwise noted, statements of fact have been taken from the Defendant’s Motion for
Partial Summary Judgment. The Plaintiff did not dispute the recitation of the facts in her
Response. Doc. 56 at 6.
1
negligence claims for negligent hiring, supervision, training, retention, and entrustment. Doc. 14
at 4-5, 7-9. Werner has conceded that at the time of the Accident Hittner was operating the
tractor-trailer within the course and scope of his employment with Werner. Doc. 15 at 3; Doc.
55 at 2. Plaintiff alleges simple negligence only, and does not allege gross negligence. Doc. 56
at 6.
By the motion sub judice, Werner now moves for partial summary judgment as to
Plaintiff’s “direct claims of negligence, negligent hiring/supervision/training/retaining, and
negligent entrustment claims.” Doc. 55 at 2. Werner does not seek summary judgment as to any
claims arising from the theory of respondeat superior. Doc. 55 at 2. Plaintiff filed a response,
Doc. 56, however, Werner did not file a reply.
II. LEGAL STANDARD
Summary judgment shall be granted when the record shows that there is no genuine
dispute as to any material fact and that the moving party is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). A fact is
material if it “might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, disputes of fact that “are irrelevant
or unnecessary will not be counted.” Id. A dispute regarding a material fact is “genuine . . . if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
(internal quotation marks omitted). When ruling on a motion for summary judgment, the court
must view all facts and inferences in the light most favorable to the nonmoving party and resolve
all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005). Once the moving party has made an initial showing that there is no
evidence to support the nonmoving party’s case, the party opposing the motion must come
2
forward with competent summary judgment evidence showing the existence of a genuine dispute
of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(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.” Id. at 587 (citation and internal quotation
marks omitted).
III. ARGUMENTS
Werner argues that partial summary judgment is proper because claims for direct
negligence (e.g. negligence in hiring, negligent entrustment, etc.) and claims for vicarious
liability against employers are “mutually exclusive” forms of recovery. Doc. 55 at 5. Therefore,
Werner argues that its admission of vicarious liability makes Plaintiff’s direct negligence claims
inadmissible. Doc. 55 at 5. In response, Plaintiff contends that Werner’s motion should be
denied because the “respondeat superior admission rule” that Werner relies on (1) has not been
adopted by the Texas Supreme Court, and (2) conflicts with the apportionment scheme under
Chapter 33 of the Texas Civil Practice and Remedies Code, which requires a trier of fact to
determine the negligence of each defendant. Doc. 56 at 6; TEX. CIV. PRAC. & REM. CODE. ANN.
§ 33.003(a). Alternatively, Plaintiff argues that the respondeat superior admission rule is
preempted by the Federal Motor Carrier Safety Regulations (the “FMCSRs”), which she argues
impose “independent and concurrent” duties of care on the employer motor carrier and truck
driver. Doc. 56 at 10.
III. ANALYSIS
A.
The respondeat superior admission rule applies in this case.
As a general rule, in matters involving ordinary negligence, claims for vicarious liability
and claims for direct negligence “are mutually exclusive modes of recovery.” Rosell v. Cent. W.
3
Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—Dallas 2002, pet. denied) (citing
Arrington’s Estate v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App.—Tyler 1979, writ ref’d
n.r.e.)). Thus, if the plaintiff does not allege gross negligence, and the defendant employer
admits vicarious liability, “the competence or incompetence of the [employee] and the care
which was exercised in his employment are immaterial issues.” Sanchez v. Transportes
Internacionales Tamaulipecos S.A. de C.V., No. 7:16-CV-354, 2017 WL 3671089, at *2 (S.D.
Tex. July 20, 2017) (quoting Arrington’s Estate, 578 S.W.2d at 178).
Here, Plaintiff alleges only simple negligence and Werner has stipulated that Hittner was
acting within the course and scope of his employment at the time of the Accident. Doc. 55 at 3;
Doc. 56 at 6. Thus, under the doctrine of respondeat superior, Werner assumes liability for any
negligence on the part of Hittner that proximately caused the Accident, and, consequently,
Plaintiff’s direct negligence claims against Werner are irrelevant. Rosell, 89 S.W.3d at 654;
Sanchez, 2017 WL 3671089, at *2.
Plaintiff’s arguments in opposition to Werner’s motion are unavailing. First, the mere
fact that the Texas Supreme Court has not explicitly adopted the respondeat superior admission
rule does not preclude its application in this case. Doc. 56 at 6. Indeed, a common law rule may
be binding even if a state’s highest court has not yet officially sanctioned it. Moreover, a federal
court is not free to reject a state rule “merely because it has not received the sanction of the
highest state court[.]” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940). Instead, in the
absence of law from the state’s highest court, a federal court sitting in diversity should look to
the state’s appellate courts for guidance, unless it is “convinced by other persuasive data that the
highest court of the state would decide otherwise.” Id. at 236-37. Here, as discussed infra,
precedent from Texas’ appellate courts (as well as federal courts applying Texas law) supports
4
the continued application of the respondeat superior admission rule. See, e.g., Sanchez, 2017
WL 3671089, at *3 (“Although the Texas Supreme Court has not spoken on the [respondeat
superior admission rule], the Court finds it appropriate to defer to the Texas appellate court
decisions [applying the rule.]”).
Plaintiff’s assertion that Chapter 33 of the Texas Civil Practice and Remedies Code
precludes application of the respondeat superior admission rule is likewise unconvincing. Doc.
56 at 6. As Plaintiff notes, Chapter 33 was amended in 1987 and again in 1995 to provide for the
apportionment of responsibility by the trier of fact in “any cause of action based on a tort . . . .”
JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 704-05 (Tex. 2008). However, since the
amendment, federal courts applying Texas law have continued to dismiss direct liability claims
when an employer admits vicarious liability.2 Further weighing against the purported
incompatibility between Chapter 33 and the respondeat superior admission rule is the fact that
“Texas courts addressing the interaction between Chapter 33 and theories of derivative liability”
have continued to find that the employer’s negligence “should not be submitted for
apportionment.” See Williams v. McCollister, 671 F. Supp. 2d 884, 890 (S.D. Tex. 2009)
(collecting cases). Plaintiff points to Bedford v. Moore in support of the argument that Chapter
33 requires submission of an employer’s direct negligence to the trier of fact. 166 S.W.3d 454,
462-63 (Tex. App.––Ft. Worth 2005, no pet.). That case, however, has been noted as an outlier
in this regard. See e.g., Williams, 671 F. Supp. 2d at 890; Conkle v. Chery, No. 03–08–00379–
CV, 2009 WL 483226, at *4 (Tex. App.—Austin, Feb. 25, 2009, no pet.) (mem. op.).
2
See, e.g., Sanchez, 2017 WL 3671089, at *2-3; Sanchez v. Swift Transp. Co. of Az., LLC, No.
PE:15-CV-00015-RAJ, 2016 WL 10587127, at *4 (W.D. Tex. Oct. 4, 2016); Rutherford v. Joe
Rud Trucking, Inc., No. SA-13-CA-856-FB (HJB), 2015 WL 12571379, at *5 (W.D. Tex. July 1,
2015), adopted by 2015 WL 12552021 (W.D. Tex. July 29, 2015); Williams, 671 F. Supp. 2d at
887-89.
5
Although “[t]he broad coverage of the proportionate responsibility statute to tort claims is
persuasive[,]” it is “clear that an apportionment scheme is not proper in certain cases.” Diamond
H. Recognition LP v. King of Fans, Inc., 589 F. Supp. 2d 772, 774 (N.D. Tex. 2008) (Means, J.)
(quoting F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 690 (Tex. 2007); Fid. &
Guar. Ins. Underwriters Inc. v. Wells Fargo Bank, Nat’l Ass’n, No. H-04-2833, 2006 WL
870683, at *5 (S.D. Tex. Mar. 31, 2006)). The weight of the precedent in support of the
continued application of the respondeat superior admission rule, coupled with the lack of any
contrary holding from the Texas Supreme Court, convinces the Court that this is one such of
those cases. Thus, because Plaintiff has alleged only simple negligence and Werner has
conceded its vicarious liability, Plaintiff’s direct liability claims against Werner must be
dismissed.
B.
The FMCSRs do not preempt application of the respondeat superior admission rule.
The “ultimate touchstone” of preemption analysis is Congressional intent. Cipollone v.
Liggett Grp., Inc., 505 U.S. 504, 516 (1992). Congress’ intent to preempt may be either
expressly stated in a regulation or statute’s language, i.e., express preemption, or implied by its
structure and purpose, i.e., implied preemption. Id. (citaitons omitted); see also Fid. Fed. Sav. &
Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982) (“Federal regulations have no less preemptive effect than federal statutes.”). There are two types of implied preemption: field
preemption and conflict preemption. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98
(1992) (citation omitted). As relevant here, conflict preemption arises when (1) it is impossible
to comply with both federal and state law, or (2) state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.” Id. When
addressing claims of preemption, the courts begin “with the starting presumption that Congress
6
does not intend to supplant state law.” N.Y. State Conference of Blue Cross & Blue Shield Plans
v. Travelers Ins. Co., 514 U.S. 645, 654 (1995) (citation omitted).
1. The rule is not expressly preempted.
Plaintiff first argues that application of the respondeat superior admission rule “actually
conflicts” with the FMCSRs. Doc. 56 at 12. Specifically, Plaintiff notes two provisions of the
FMCSRs that state: (1) if the FMCSRs impose a higher standard of care than state law, then the
regulations must be complied with, 49 C.F.R. § 392.2, and (2) “[n]o State shall have in effect or
enforce any State law or regulation pertaining to commercial motor vehicle safety in interstate
commerce which the Administrator finds to be incompatible with the provisions of the
[FMCSRs],” 49 C.F.R. § 355.25(a). Doc. 56 at 12-13. Thus, Plaintiff argues that because
application of the respondeat superior admission rule essentially lessens the standard of care
under the FMCSR, it is inconsistent with – and therefore preempted by – the FMCSRs. Doc. 56
at 12-13. Though Plaintiff references an “actual conflict,” she appears to be arguing that the
FMCSRs expressly preempt application of the respondeat superior admission rule. In any event,
her argument fails.
First, the respondeat superior admission rule imposes no standard of care, thus section
392.2 does not expressly preempt its application. See Soo Line R.R. Co. v. Werner Enters., 825
F.3d 413, 420 (8th Cir. 2016) (finding section 392.2 of the FMCSRs did not expressly preempt
application of a common-law defense simply because the latter “is a defense, not a ‘standard of
care’”). Second, according to section 355.25(a), a finding of incompatibility must be made by
the Administrator. 49 C.F.R. § 355.25(a). Here, Plaintiff points to no such incompatibility
finding by the Administrator, and she fails to present any legal authority permitting the Court to
find express preemption based on section 355.25(a). In light of the foregoing, as well as
7
Congress’ express intent to “minimize . . . unnecessary preemption” of state law,” 49 U.S.C. §
31136(c)(2)(B), and the presumption against preemption, N.Y. State Conference, 514 U.S. at 654,
the Court finds that the FMCSRs do not expressly preempt application of the respondeat
superior admission rule.
2. The rule is not impliedly preempted.
Lastly, Plaintiff argues that application of the respondeat superior admission rule is in
“implied conflict with the FMCSRs as defined by the purposes and objective of Congress.” Doc.
56 at 12. Plaintiff argues that by effectively shielding employers from direct liability claims, the
respondeat superior admission rule effectively relieves the employer of its duty to comply with
the FMCSRs and thus irreconcilably conflicts with the regulations’ purpose of enhancing
commercial motor vehicle safety. Doc. 56 at 13-15.
Upon review, application of the respondeat superior admission rule does not stand as an
obstacle to the fulfillment of the purposes and objectives underlying the FMCSRs. Gade, 505
U.S. at 98. To achieve the Federal Motor Vehicle Safety Act’s stated purpose of, inter alia,
“promot[ing] the safe operation of commercial motor vehicles,” the FMCSRs were intended to
act as the “minimum safety standards for commercial motor vehicles.” 49 U.S.C. §§ 31131(a),
31136(a). Contrary to Plaintiff’s assertion, application of the respondeat superior admission rule
does not relieve a motor carrier of its minimum duties under the FMCSRs and thus does not
frustrate the regulations’ purpose. Instead, as explained above, the rule merely provides that in
certain circumstances, upon an employer’s concession of vicarious liability, a plaintiff may not
proceed with claims premised on the employer’s direct liability. Simply put, the rule does not
implicate an employer’s duties under the regulations. Additionally, many courts have held that
the FMCSRs create no private right of action in personal injury actions like the one before the
8
Court, which Plaintiff concedes. See Doc. 56 at 14 (“Admittedly, the FMCSRs themselves do
not provide a private right of action against violators of the FMCSRs.”); see also Harris v.
FedEx Nat’l LTL, Inc., 760 F.3d 780, 784 n.2 (8th Cir. 2014) (citing Stewart v. Mitchell Transp.,
241 F. Supp. 2d 1216, 1219-21 (D. Kan. 2002)). Though Plaintiff attempts to minimize the
significance of this fact, it is difficult to see how Texas’ refusal to recognize direct liability
claims in this instance conflicts with the FMCSRs, which provide for no such claims themselves.
The only case Plaintiff cites in support of her preemption argument comes from the
Western District of Oklahoma and is inapposite, as it dealt with express preemption under the
Motor Vehicle Safety Act. See Johnson v. Gen. Motors Corp., 889 F. Supp. 451 (W.D. Okla.
1995). In fact, Plaintiff’s reliance on precedent from one of Oklahoma’s federal district courts
undercuts her preemption argument. For context, Oklahoma has a common-law rule closely
analogous to Texas’ respondeat superior admission rule, which provides that an employer’s
admission of vicarious liability prevents a plaintiff from bringing direct liability claims against
the employer. See Jordan v. Cates, 935 P.2d 289, 293 (Okla. 1997). In several personal injury
actions, plaintiffs have argued that the FMCSRs preempt application of the Jordan v. Cates rule.
Each time, however, Oklahoma’s federal district courts have rejected this argument, emphasizing
the fact that, as noted, the FMCSRs provide no private right of action that could preempt any
state rule of law.3
3
See Hall v. Chang Soo Kang, No. CIV-16-11-1-HE, 2017 WL 2414916, at *3 (W.D. Okla. June
1, 2017); Oliver v. Soto, No. CIV-15-1106-R, 2016 WL 815343, at *2 (W.D. Okla. Feb. 29,
2016); Mason v. Dunn, No. CIV-14-282-KEW, 2015 WL 5690746, at *3 (E.D. Okla. Sept. 28,
2015); Beaber v. Stevens Transp., Inc., No. CIV-15-382-R, 2015 WL 8074312, at *2 n.3 (W.D.
Okla. Dec. 4, 2015).
9
For these reasons, the Court finds that the FMCSRs do not preempt application of the
respondeat superior admission rule, and Plaintiff’s argument fails as a matter of law.
IV. CONCLUSION
For the reasons stated herein, Defendant Werner Enterprises, Inc.’s Motion for Partial
Summary Judgment, Doc. 55, is GRANTED and Plaintiff’s direct liability claims against
Defendant Werner are DISMISSED WITH PREJUDICE.
SO ORDERED on July 24, 2018.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?