Stallion Heavy Haulers, LP v. Lincoln General Insurance Company

Filing 47

REPORT AND RECOMMENDATIONS re 38 Motion for Partial Summary Judgment filed by Lincoln General Insurance Company be DENIED. Signed by Judge Nancy Stein Nowak. (mailed on 5/16/2011 by certified mail, or sent via electronic transmittal)(rg)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Stallion Heavy Haulers, LP,
Plaintiff,
v.
Lincoln General Insurance
Company ,
Defendant.

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CIVIL ACTION NO.
SA-09-CA-0317-FB (NN)

REPORT AND RECOMMENDATION
This report and recommendation addresses the defendant’s motion for partial
summary judgment.1 I have jurisdiction to enter this report and recommendation under
28 U.S.C. § 636(b) and the district court’s order referring all pretrial matters to me for
disposition by order or to aid the district court by recommendation where my authority
as a magistrate judge is statutorily constrained.2 After considering the motion and
supporting evidence, I recommend denying the motion for partial summary-judgment .
Nature of the case. This case involves a dispute between two insurance
companies. Each insurance company settled an underlying state-court lawsuit. One

1

Docket entry # 38.

2

Docket entry # 44.

insurer settled for $750,000.00; the other insurer settled for $2,225,000.00. The insurer that
settled for $750,000.00 seeks indemnification from the insurer that settled for
$2,225,000.00.
The plaintiff in this case — Stallion Heavy Haulers LP (Stallion) — is a trucking
company that specializes in transporting machinery and oilfield equipment. Stallion is
insured by Steadfast Insurance Company (Steadfast). Steadfast is the one of the two
insurance companies involved in this dispute. Steadfast is the real party in interest.
Stallion was hired to transport an oilfield drilling rig to Nacogdoches County in
September 2006. Stallion hired Rig Runners Inc (Rig Runners) to assist in the
transportation of the oilfield drilling rig. Rig Runners provided extra trucks and drivers.
Rig Runners is insured by the defendant in this case — Lincoln General Insurance
Company (Lincoln) — the other insurance company involved in this dispute.
On September 9, 2006, an accident occurred during the transportation of the
oilfield drilling rig. Prior to the accident, three Rig Runners drivers parked trucks along
the shoulder of the highway near the entrance to the work site where the oilfield drilling
rig was transported. A Stallion truck, leaving the work site and entering the highway,
drove from behind the Rig Runners trucks and onto the highway into the path of Billy
and Vicki Taylor’s motorcycle. The Taylors struck the truck and were seriously injured.
The Taylors sued several defendants in state court in Rusk County: Stallion,

2

Stallion’s work site supervisor, Rig Runners, the three Rig Runners drivers who parked
on the shoulder of the road, the driver of the truck that drove into the path of the
Taylors’ motorcycle, and an engineering consultant. Steadfast settled the Taylors’
lawsuit on behalf of Stallion and its employees. Lincoln settled the lawsuit on behalf of
Rig Runners and its employees.
In this lawsuit, Steadfast —through Stallion — maintains Stallion is an insured
under Rig Runners’s insurance policy — the policy issued by Lincoln.3 Steadfast
maintains the Lincoln policy covered Stallion, and insists Lincoln owed Stallion a duty to
defend and indemnify in the state-court lawsuit. Steadfast seeks from Lincoln recovery
of defense costs and indemnification payments paid out on behalf of Stallion.
The Lincoln policy. Here are the applicable Lincoln policy provisions:
1.

Who Is An Insured
The following are “insureds”:
a.

You for any covered “auto”.

b.

Anyone else while using with your permission a covered
“auto” you own, hire or borrow…

***
e.

Anyone liable for the conduct of an “insured” described
above but only to the extent of that liability.4

3

Docket entry # 1.

4

Docket entry # 38, app’x pp. 28-29.
3

The policy includes a Texas Additional Insured endorsement that provides the
following:
A.

Who Is An Insured (Section II) is amended to include as an
“insured” the person(s) or organization(s) shown in the Schedule,
but only with respect to their legal liability for acts or omissions of a
person for whom Liability Coverage is afforded under this policy.5

The parties agree about what the policy provisions mean — that a party is an “insured”
under these provisions when the party is alleged to be or held to be vicariously liable for
the conduct of the named insured — but disagree about whether the summary-judgment
evidence shows Stallion is vicariously liable for Rig Runners’s conduct.
Lincoln’s motion. Lincoln argued that Stallion exercised insufficient control over
Rig Runners for Stallion to be held liable for Rig Runners’s conduct so as to constitute an
“insured” under the Lincoln policy. Thus, Lincoln contended it has no duty to indemnify
Stallion. Lincoln asked for summary judgment on Stallion’s claim for indemnification.
Texas law about independent contractors. Under Texas law, “an employer is
generally not liable for the acts of an independent contractor unless the employer
exercises sufficient control over the details of the independent contractor’s work.”6 “[A]n
employer can be held vicariously liable for the actions of an independent contractor if
the employer retains some control over the manner in which the contractor performs the

5

Docket entry # 38, app’x, p. 189.

6

Fifth Club v. Ramirez, 196 S.W.3d 788, 790 (Tex. 2006).
4

work that causes the damage.”7 “The supervisory control must relate to the activity that
actually caused the injury….”8 “The insurer’s duty to indemnify depends on the facts
proven and whether the damages caused by the actions or omissions proven are covered
by the terms of the policy.”9 These principles applied here, Stallion is an insured under
the Lincoln policy if the summary-judgment evidence shows Stallion exercised some
control over the manner in which Rig Runners performed the work that caused the
Taylors’ injuries. The work that caused the Taylors’ injuries was parking the three Rig
Runners trucks on the shoulder of the highway, such that the driver who drove into the
Taylors’ path could not see the Taylors.
The summary-judgment evidence. Lincoln relied on depositions from the
Taylors’ lawsuit; specifically, the depositions of Stallion’s work-site supervisor and the
three Rig Runners drivers. Stallion’s work-site supervisor testified that the Rig Runners
drivers were not under his control until he called them to the work site.10 He also stated

7

Fifth Club, 196 S.W.3d at 791.

8

Coastal Marine Serv. of Tex. v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999).

9

D.R. Horton-Texas v. Markel Int’l Ins. Co., 300 S.W.3d 740, 744 (Tex. 2009).

10

Docket entry # 38, app’x p. 226 (Bell deposition):

Question:

But it’s your testimony that those men – those Stallion
employees…even though you’re the operator on this rig,
were not under your supervision when they parked out
there on the highway?
5

that the Rig Runners drivers could choose where to stage until he needed them.11 He
testified that he told the Rig Runners drivers to park on the shoulder of the road and
wait, but the drivers decided where to park.12

Answer:
Question:

Answer:
Question:
Answer:
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Answer:
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Answer:
Question:
11

Docket entry # 38, app’x p. 228 (Bell deposition):

Question:
Answer:
****
Question:
Answer:
Question:
Answer:
12

***
They were under my supervision when I called for them to
come in to my location.
Well, what about the 30 seconds before you called them and
they’re parked out there waiting, are they under your
supervision then?
They’re not — no, sir, not till I call them in.
Whose supervision are they under, then, if they’re not under
your supervision while they’re parked waiting?
They’re under their own, sir.
Self-supervision?
Yes, sir.
Okay. But the moment you call them with a CB, right?
Yes, sir.
They are under your supervision?

So, typically you’re not telling them about a staging or
parking area that you’re aware of, correct?
Most of the time, they make that decision on their own, sir.
…Typically, you are not telling them about a specific
location to park or stage that you believe safe, correct?
No, sir, I don’t.
Typically, what you’re telling them is, Stay out of the way,
or words to that effect?
Words to that effect.

Docket entry # 38, app’x p. 229-30 (Bell deposition):

Question:

…But it’s your testimony here today under oath that you
6

The Rig Runners drivers testified as follows: The driver of the first truck — the
truck parked closest to the work-site entrance — testified that Stallion’s truck-pusher
told him to wait on the shoulder of the highway, but the truck-pusher did not specify
where to wait.13 The first driver stated that he made the decision about where to park on

Answer:
Question:

Answer:
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Answer:
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Answer:
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Answer:
***
Question:

Answer:
Question:
Answer:
13

told at least one driver —
Yes, sir.
— it might not have been Jim Bowling [the driver of the
truck parked closest to the work-site entrance], but you told
at [l]east one of drivers on one of those days to park on the
shoulder?
Yes, sir.
Did you tell a driver to park on the shoulder on September
9th, the Saturday [the date of the Taylors’ accident]?
I don’t recall that, sir. I don’t know.
Did you tell them where to park on the shoulder?
No, sir, I did not.
In other words, there’s a long shoulder there.
Yes, sir.
Did you give any of these drivers any specific instruction
about where in the shoulder, you know, hundred yards from
County Road 731, quarter of a mile, a mile, any specific
directions as to where on the shoulder they should park?
No, sir, that I can remember, I did not.
Did you tell them where not to park?
No, sir, not that I know if.

Docket entry # 38, app’x p. 238-39 (Bowling deposition):

Question:
Answer:
Question:

When — when you neared the collision scene, … you made
contact with the truck pusher?
Correct.
And what did he tell you concerning the parking of your
tractor?
7

the shoulder.14 The driver testified that nothing kept him from choosing a different
location to park and wait for entry to the work-site.15 The drivers of the second and third
trucks parked on the shoulder of the highway also testified that they made the decision
about where to park and wait for entry to the work-site.16

Answer:

Question:
Answer:
14

Docket entry # 38, app’x pp. 240 & 243-45 (Bowling deposition):

Question:

Answer:
15

That he had a truck on location now, to pull off on the
shoulder on the side of 21 and wait for that truck to get
unloaded and to come off the county road before one of us
could come in.
Okay. Did he tell you anything else?
No.

You made the decision without instruction from anyone as
to where to park on the shoulder, that is 10 yards from
County Road 823, 50 yards, 100 yards, what — whatever
distance it was, that decision was your decision?
Yes.

Docket entry # 38, app’x pp. 241-42 (Bowling deposition):

Question:

Answer:
Question:

***
Answer:

My question to you is there was nothing preventing you
from parking your tractor-trailer at or near where the school
bus was — is in Exhibit 5 on September 9th, was there?
There was nothing that kept me from parking my truck, no.
Right. And had you done that, that still would have been
complying with or consistent with the Stallion
representative’s instructions, park on roadway?
Yeah.

16

Docket entry # 38, app’x pp. 251-54 (Lee deposition) & p. 260 (Luman
deposition):

8

This testimony establishes that Stallion did not control the details of where the Rig
Runners drivers parked to wait for entry to the work-site. Because control over where
Lee testifying:
Question:
Did you get instructions from the yard for the September 9th
trip?
Answer:
That’s what I’m saying. I’m — I’m not sure exactly how that
took place, but it’s usually one way or the other or both.
Question:
Typically if you do get directions from the yard, you mean
instructions from Rig Runners, right?
Answer:
Yes.
Question:
If you do get instructions, do those instructions include
telling you where to park or stage?
Answer:
No, that’s left up to the driver.
***
Question:
Now, as far as parking is concerned, if —if this customer,
Stallion, or another customer that you had told to park your
vehicle in a place or on the circumstances that you thought
were unsafe, you have the right as the person that controls
your vehicle and trailer to tell that person I’m not going to
do that —
Answer:
Yes, sir.
Question:
— is that correct?
Answer:
(Witness nods head up and down.)
Luman testifying:
Question:
Okay. When — when you’re driving your truck and trailer,
you — you are in — in — you’re the one that’s in charge of
the operation of that truck and trailer, correct?
Answer:
Correct.
Question:
Okay. Now, where you park it and how fast you go, those
kind of things is something that you control?
Answer:
Yes, sir.
Question:
Okay. If somebody came up and told you to park someplace
that you thought was unsafe, you wouldn’t do that, would
you?
Answer:
No, sir.
9

the Rig Runners drivers parked — so as to block the views of the Stallion driver and the
Taylors — is dispositive of Stallion’s indemnification claim, Lincoln is entitled to
summary judgment on the claim unless Stallion presents summary-judgment evidence
raising a fact question about whether Stallion exercised some control over where the Rig
Runners parked the trucks.
Stallion’s summary-judgment evidence. Stallion characterized the deposition
testimony in the Taylors’ lawsuit as “contradictory and rife with fact issues on this key
coverage provision.”17 Although this characterization is somewhat over-stated, Stallion
presented enough contradictory evidence to raise a fact question about Stallion’s control
over where the Rig Runners drivers parked.
The Stallion work-site supervisor testified that he told the first Rig Runners driver
to park on the shoulder of the highway outside the entrance to the work-site.18 He also

17

Docket entry # 41, p. 7.

18

Docket entry # 41, ex. B (Bell deposition), p. 67-68:

Question:
Answer:
Question:
Answer:
Question:

Answer:

Mr. Bowling, Jim Bowling, one of the Rig Runners drivers,
do you know Mr. Bowling:
No, sir, I do not.
…Did you tell Mr. Bowling or any other driver, be it Rig
Runners or Stallion, to park on the shoulder of Highway 21?
Yes, I do believe I did.
Okay. So when you told me a little bit ago that your typical
or routine instruction is to stay out of the way, you told them
that also in this case, didn’t you?
Yes, sir.
10

testified that he normally tells the first driver where to park and then the first driver tells
later arriving drivers where to park.19 In addition, the driver of the first Rig Runners
truck testified that he took instruction from Stallion: “[W]hen — on a rig move it’s pretty

Question:
Answer:
Question:
Answer:
19

But in addition to that, you told Mr. Bowling to park on the
shoulder?
I don’t know if I told Mr. Bowling that or not, sir.
Okay. But you do recall telling a driver to park and wait his
turn on the shoulder.
Yes.

Docket entry # 41, ex. B (Bell deposition), p. 69:

Question:

Answer:
***
Question:
***
Answer:
Question:
Answer:

Question:
Answer:
Question:

Answer:

How many of these drivers did you communicate with and
tell, Stay out of the way and park on the shoulder? Was that
something that you repeated more than one time?
No, sir. Normally, I would tell the first driver and then he
would relate that to the rest of them as they pulled up.
Sure. But what if there’s a gap? What if the next driver isn’t
there when the previous driver leaves?
After — if they pulled another — like everybody was gone
and then somebody else pulled back up?
Yes, sir.
If it was where I was by my CB radio, it’s a possibility, but I
was not in my pickup that whole time. My job is out of the
ground.
Sure. But it’s your testimony here today under oath that you
told at least one driver —
Yes, sir.
— it might not have been Jim Bowling, but you told at least
one of those drivers on one of those days to park on the
shoulder?
Yes, sir.
11

common knowledge, you just — do what the truck pusher tells you. You don’t pull on
location before they want you.”20 The driver explained that when he neared the work
site, he communicated with the Stallion truck pusher via CB radio and was told to park
on the side of the road until he was called to enter.21 Finally, Rig Runners regional
manager testified that Rig Runners drivers are expected to take instructions from the

20

Docket entry # 41, ex. C (Bowling deposition), p. 37.

21

Docket entry # 41, ex. C (Bowling deposition), pp. 40, 53 & 158:

Answer:

***
Question:
Answer:
Question:
Answer:

***
Question:
***
Answer:

…And when we come around the — that curve, we were
communicating with the truck pusher. And he — he said
that two trucks couldn’t pass on the county road, to stop on
the side of the road and he would let us know when the
truck that was unloading at that time was coming out for the
next one to come in.
When — when you neared the collision scene, 21 and 823,
you made contact with the truck pusher?
correct.
And what did he tell you concerning the parking of your
tractor?
That he had a truck on location now, to pull off the shoulder
on the side of 21 and wait for that truck to get unloaded and
to come off the county road before one of us could come in.
…Stallion didn’t instruct you on this occasion, did they?
They basically just said pull off the shoulder and we’ll call
you as soon as we unload this truck.
12

customer’s truck pusher after arriving at the work site.22
Genuine issue of material fact. The foregoing testimony contradicts Lincoln’s
summary-judgment evidence that the Rig Runners drivers decided where to park
because it suggests the drivers parked in the precise location because the Stallion truck
pusher directed them to do so. Stallion’s summary-judgment evidence may be
insufficient under a preponderance-of-the-evidence standard to overcome the Rig
Runners drivers’ testimony that they chose where to park, but the reconciliation of the
testimony is not before the court at the summary-judgment stage. Instead, the question
before the court is whether a “genuine dispute as to any material fact”23 exists.
Here, the relevant material fact is who controlled the decision about where the

22

Docket entry # 41, ex. D (Russell deposition), pp. 76 & 79:

Question:

Answer:
***
Question:

***
Answer:
Question:
Answer:
23

Regardless of — of what is told how to — when to load,
where to go, how to get there, you as the district regional
manager for Rig Runners, you expect those lease drivers to
listen to and follow those instructions coming from your
customers, don’t you?
Yes.
…And — and again those instructions, where to wait, where
to park, they’re not coming from you or from Rig Runners’
dispatch, correct?
No.
They’re coming from Rig Runners’ customers?
Right, right.

Fed. R. Civ. P. 56(a).
13

Rig Runners drivers parked, because that fact affects the outcome of Stallion’s claim for
indemnification.24 The issue of control is a genuine issue, because if the court draws all
reasonable inferences in favor of Stallion, a rational trier of fact could find that the Rig
Runners drivers parked their trucks at the precise location because Stallion told them to
park along the shoulder, rather than determining on their own where to park after being
told to wait.25 If the Rig Runners drivers parked their trucks at the precise location
because Stallion told them to park along the shoulder, Stallion may have had the
requisite control to trigger the Lincoln policy provision. In addition, a question exists as
to whether being told to pull over and park on the shoulder of the road comprised
sufficient supervisory control over the decision about where to park and whether that
decision caused the Taylors’ injuries.
Recommendation. Neither party’s summary-judgment evidence is conclusive.
The summary-judgment evidence raises a fact question about who controlled the
decision to park on the shoulder of the road so as to block the views of the Stallion driver
and the Taylors: Either the Stallion truck pusher directed the precise location for the Rig

24

See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (“Only disputes over facts
that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”).
25

See Anderson, 477 U.S. at 248 (describing a material fact as genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party”).
14

Runners drivers to park and the Rig Runners drivers parked there because of that
instruction, or the Rig Runners drivers chose the precise location after being told to wait
until called to the work site. This question precludes summary judgment on Stallion’s
indemnification claim. I recommend DENYING Lincoln’s motion for partial summary
judgment (docket entry # 38).
Instructions for Service and Notice of Right to Object/Appeal. The United States
District Clerk shall serve a copy of this report and recommendation on all parties by
either (1) electronic transmittal to all parties represented by attorneys registered as a
“filing user” with the clerk of court, or (2) by mailing a copy to those not registered by
certified mail, return receipt requested. Written objections to this report and
recommendation must be filed within 14 days after being served with a copy of same,
unless this time period is modified by the district court.26 Such party shall file the
objections with the clerk of the court, and serve the objections on all other parties and the
magistrate judge. A party filing objections must specifically identify those findings,
conclusions or recommendations to which objections are being made and the basis for
such objections; the district court need not consider frivolous, conclusive or general
objections. A party’s failure to file written objections to the proposed findings,
conclusions and recommendations contained in this report shall bar the party from a de

26

28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).
15

novo determination by the district court.27 Additionally, failure to file timely written
objections to the proposed findings, conclusions and recommendations contained in this
report and recommendation shall bar the aggrieved party, except upon grounds of plain
error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court.28
SIGNED on May 16, 2011.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

27

Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, 200 F.3d 335,
340 (5th Cir. 2000).
28

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
16