Gilley v. CH Robinson Worldwide, Inc. et al
Filing
293
MEMORANDUM OPINION AND ORDER The court GRANTS in part and DENIES in part C. H. Robinson's ("Robinson") 186 MOTION for Summary Judgment; it is granted only as to plaintiffs' vicarious liability claim; because plaintiffs have with drawn their punitive damages claim, the portion of Robinson's motion seeking summary judgment on that claim and Bertram Copeland's 184 MOTION for Partial Summary Judgment are DENIED as moot. Plaintiffs' 196 MOTION to Exceed Page Li mit and Robinson's 181 , 204 MOTIONS to Exceed Page Limit are GRANTED. Robinson's 288 MOTION for Leave to File a Supplemental Memorandum is DENIED for lack of good cause. Signed by Senior Judge David A. Faber on 8/26/2021. (cc: counsel of record) (arb)
Case 1:18-cv-00536 Document 293 Filed 08/26/21 Page 1 of 28 PageID #: 4223
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
Clinton Eugene Gilley, as Administrator
of the Estate of CARL DAVID GILLEY,
Nicole Leigh Le, as Administrator of the
Estate of CHRISTINE TARA WARDEN GILLEY,
and Clinton Eugene Gilley and Nicole
Leigh Le as Co-Administrators of the
Estates of J.G. and G.G., minor children,
Plaintiffs,
v.
CIVIL ACTION NO. 1:18-00536
C.H. ROBINSON WORLDWIDE, INC.,
J&TS TRANSPORT EXPRESS, INC.,
and BERTRAM COPELAND,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant C.H. Robinson’s
motion for summary judgment. 1
(ECF No. 186.)
For the reasons
that follow, the motion is GRANTED in part and DENIED in part.
I.
Background
This case arises from a collision between a tractor-trailer
and a passenger vehicle resulting in the deaths of the four
occupants of the passenger vehicle.
The collision occurred on
Interstate 77 near Camp Creek in Mercer County, West Virginia,
when the tractor-trailer crossed the median and struck the
As stated in the conclusion section, subsidiary motions not
requiring analysis are also pending and will be resolved by this
Memorandum Opinion and Order.
1
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passenger vehicle.
deceased.
Plaintiffs are the family members of the
Defendant Bertram Copeland (“Copeland”) was the
driver of the tractor-trailer.
Defendant J&TS Transport
Express, Inc. (“J&TS”) was his employer.
Defendant C.H.
Robinson (“Robinson”) was the broker for the shipment, which
consisted of canned goods bound for an Aldi supermarket in North
Carolina.
II.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides:
A party may move for summary judgment, identifying
each claim or defense—or the part of each claim or
defense—on which summary judgment is sought. The
court shall grant summary judgment 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.
The moving party has the burden of establishing that there is no
genuine issue as to any material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
This burden can be met by
showing that the nonmoving party has failed to prove an
essential element of the nonmoving party’s case for which the
nonmoving party will bear the burden of proof at trial.
322.
Id. at
This is so because “a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.”
Id. at 323.
Once there is a proper challenge to the sufficiency of the
nonmoving party’s evidence on an essential element, the burden
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shifts to the nonmoving party to produce sufficient evidence for
a jury to return a verdict for the nonmoving party.
See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff. The judge’s
inquiry, therefore, unavoidably asks whether
reasonable jurors could find, by a preponderance of
the evidence, that the plaintiff is entitled to a
verdict . . . .
Id. at 252.
“If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.”
at 250-51.
Id.
All reasonable inferences are to be drawn in the
nonmoving party’s favor.
See id. at 255.
III. Discussion
Plaintiffs have alleged two causes of action against
Robinson:
vicarious liability and negligent selection. 2
Robinson argues that it is entitled to summary judgment as to
both causes of action on preemption grounds and, separately,
A claim for negligent selection of an independent contractor is
also called a claim for negligent hiring of an independent
contractor. Courts, including the Supreme Court of Appeals of
West Virginia, use these labels interchangeably. See Kizer v.
Harper, 561 S.E.2d 368, 372 (W. Va. 2001) (per curiam) (“We
discussed and adopted a cause of action for negligent hiring or
selection in Thomson v. McGinnis, 195 W.Va. 465, 465 S.E.2d 922
(1995), holding that one who undertakes to hire an independent
contractor who is not careful or competent can be held liable
for resulting damages caused by the independent contractor if
the hiring entity is negligent in the selection and retention of
the independent contractor.”).
2
3
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that each cause of action fails because plaintiffs cannot
establish its essential elements.
Robinson is wrong that
plaintiffs’ claims are preempted and that there is no triable
issue of fact as to the negligent selection claim.
Robinson is
right, however, that there is no triable issue of fact as to the
vicarious liability claim.
Express preemption does not apply because the language of
the federal law at issue does not sweep this claim within its
preemption ambit, and even if it did, the safety clause would
apply.
Obstacle preemption does not apply because the tort
claims obstruct no important federal interest.
The negligent
hiring claim will proceed because there are triable issues of
fact.
Contrastingly, the vicarious liability claim will not
proceed because the only reasonable inference from the record is
that J&TS (including its driver, Copeland) was acting as an
independent contractor.
Thus, the court will grant summary
judgment as to the vicarious liability claim only.
Regarding plaintiffs’ negligent selection claim, Robinson
conflates the existence of an applicable industry standard with
the existence of an applicable standard of care by analogizing
too strongly to the deliberate indifference context.
Unlike in
that context, the breach of a state or federal law or an
industry standard is not imperative here.
The causation
argument carries more weight, but the evidence of causation is
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not so slim as to remove this question from the province of the
factfinder.
Contrastingly, the evidence of Robinson’s control
of the carrier’s relevant conduct is slim enough such that no
factfinder could reasonably conclude that J&TS and Copeland were
agents of Robinson.
While it is true that the line between
broker and carrier is somewhat blurred here, and while slightly
different facts may blur the line enough to create a jury
question, the line is just sharp enough that only one conclusion
is reasonable.
a. Preemption
Neither express nor obstacle preemption defeats the tort
claims at issue here.
The tort claims relate to the prices,
routes, and services of brokers only peripherally.
And they
stand in the way of no important federal interest.
1. Express Preemption
Having carefully reviewed its previous opinion (ECF No. 82)
and Robinson’s renewed express preemption argument, the court
remains unconvinced that express preemption applies.
The court
reaffirms its previous determination that the express preemption
argument fails at step one of the analysis, and even if not,
would fail at step two.
The court respectfully disagrees with
the opinion of the United States Court of Appeals for the Ninth
Circuit in Miller v. C.H. Robinson Worldwide, Inc. insofar as
that court found in a similar case that the preemption argument
5
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did not fail at step one.
See 976 F.3d 1016, 1023-25 (9th Cir.
2020).
2. Obstacle Preemption
Robinson raises a new preemption argument in its motion for
summary judgment.
It says that plaintiffs’ claims are preempted
because they pose an obstacle to important federal objectives.
The purported federal objectives here are uniformity and
efficiency in the trucking industry.
The argument appears to be
that federal motor carrier registration requirements strike a
balance between cost and safety, and the tort claims here
impermissibly disrupt that balance.
If a carrier is federally
registered, Robinson appears to suggest, it bears the federal
imprimatur of fitness for the road, period.
Robinson further
argues that the increased costs that may follow if it cannot
rely solely on federal registration when selecting carriers are
anathema to Congress’s desire to deregulate the trucking
industry and let the market decide which carriers get business.
The obstacle preemption argument fails because the state
law tort claims jeopardize no important federal interest.
In
the area of obstacle preemption, citing overarching goals of
federal law and saying that state law hinders them is generally
insufficient.
Moreover, the existence of federal licensing
requirements does not establish a federal objective of setting
maximum competency standards for purposes of tort liability.
6
In
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other words, there is no indication that federal registration
requirements were intended to set a ceiling on carrier
competency.
Robinson cites two cases in support of its obstacle
preemption argument:
Geier v. Am. Honda Motor Co., 529 U.S. 861
(2000), and Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S.
364 (2008).
Rowe was an express preemption case and does not
apply here.
And Geier is not on point.
At issue in Geier was a
products liability claim that a 1987 Honda was defective for
lack of airbags even though, in 1987, a federal regulation
expressly made air bags optional.
529 U.S. at 865-66.
The
Court held that, by retrospectively mandating airbags, the tort
claim would stand as an obstacle to multiple important federal
objectives imbedded within the regulation.
Id. at 881.
Those
objectives were to effect (1) a “variety and mix of [safety]
devices” instead of airbags across the board; (2) “the gradual
passive restraint phase-in”; and (3) the adoption of state
buckle-up laws.
Id.
According to the Supreme Court, it was for
“safety-related reasons” that the regulation gave manufactures a
choice, and because the no-airbag lawsuit would retrospectively
take that choice away, it was preempted as an obstacle to
safety-related goals.
Id. at 886.
Nine years later, the Supreme Court decided Wyeth v.
Levine.
555 U.S. 555 (2009).
Wyeth was another products
7
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liability case.
Id. at 558-60.
The plaintiff alleged injuries
resulting from a drug manufacturer’s failure to warn of the risk
of “IV-push” administration of a drug.
Id.
The Food and Drug
Administration had approved the label. Id. at 560-61.
The
manufacturer argued that the tort claim would stand as an
obstacle to the important federal purpose of delegating to “an
expert agency” the responsibility “to make drug labeling
decisions that strike a balance between competing objectives.”
Id. at 573.
It further argued that the Federal Food, Drug, and
Cosmetic Act “establishe[d] both a floor and a ceiling for drug
regulation.”
Court.
Id.
Id.
These arguments had “no merit” with the
Although the case bore superficial resemblance to
Geier, the Court decided that the claim was not preempted.
See
id. at 579-81.
Judge Goodwin’s opinion in Smith v. BAC Home Loans
Servicing, 769 F. Supp. 2d 1033 (S.D.W. Va. 2011), which
thoughtfully and thoroughly analyzes preemption issues in the
wake of both Geier and Wyeth, is instructive here.
In Smith, a
bank argued that federal banking law preempted a consumer’s
claims under West Virginia consumer credit law (relating to the
foreclosure of her home).
Id. at 1037.
The bank’s position was
that because the claims “directly implicated” how the bank
serviced the loans, they were preempted.
See id. at 1045.
rejecting the bank’s argument, Judge Goodwin explained that
8
In
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“[o]bstacle preemption is not triggered merely because West
Virginia’s broad statute prohibiting unlawful forms of debt
collection happens to ensnare certain practices of national
banks.”
Id. at 1046.
He further noted,
In my view, forcing BAC to comply with the WVCCPA
provisions identified in the Complaint will not stand
as an obstacle to the significant regulatory
objectives underlying the NBA and the relevant OCC
regulations—allowing national banks and their
operating subsidiaries to engage in mortgage servicing
free from unduly burdensome state regulation. It is
not as if, by contrast, West Virginia has attempted to
outlaw mortgage servicing as a whole or even sought to
place any direct limits on the nature of that
business.
Id.
Here, Robinson does not identify (with much precision) an
important federal objective anchored in the text of federal law.
Instead, Robinson says that Congress wanted uniformity and
efficiency, citing several sources in support, including
President Carter’s signing statement for the Motor Carrier Act
of 1980. 3
A similar argument failed in Wyeth, where the
defendant pointed not to some specific federal objective but to
the FDA’s balancing of competing objectives.
573.
See 555 U.S. at
The Court there also noted that the lack of an express
preemption provision weighed against Congressional intent to
It gives the court significant pause that the licensing
requirements suggest a federal goal of free-market efficiency,
if at all, only by reference to the larger deregulatory context
provided by the Motor Carrier Act of 1980 in general.
3
9
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displace state tort law with federal agency oversight.
575.
Id. at
Likewise, Robinson appears to argue that the federal
licensing regime displaces the tort claims here because the
licensing regime reflects the weighing of costs and benefits by
an expert federal agency.
This balancing act, it suggests, sets
a floor and a ceiling which must be respected lest the “system”
be “disrupt[ed].”
(ECF No. 187, 19-20.)
As in Wyeth, this
argument lacks merit.
In contrast with Robinson and with the defendant in Wyeth,
the defendant in Geier successfully argued obstacle preemption
by pointing to a very specific provision of a regulation:
concerning whether airbags were mandatory.
one
See 529 U.S. 864-65.
The regulation made it mandatory for manufacturers to put
airbags in new vehicles, but only ten percent of them.
879.
Id. at
The Court concluded that in limiting its mandate to only
ten percent, the federal regulation “deliberately sought a
gradual phase-in of passive restraints,” to allow more time for
research and development, as well as public acceptance, and to
produce a “mix” of safety devices in cars traveling U.S. roads.
Id.
The regulation was also designed to make the adoption of
state seatbelt laws more likely.
Id. at 881.
The regulation
had a very extensive procedural history, which included a
rejection of an all-airbag standard and reflected significant
concern with public sentiment and public safety.
10
Id. at 878-89.
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Beyond deriving from a very specific regulation, the
federal interest itself in Geier was specific:
the maintenance
of manufacturer choice in passive restraint systems to promote
safety.
Id. at 886; Williamson v. Mazda Motor of Am., Inc., 562
U.S. 323, 330 (2011) (“In Geier, we found that the state law
stood as an “‘obstacle’ to the accomplishment” of a significant
federal regulatory objective, namely, the maintenance of
manufacturer choice.”).
The specificity in the federal interest
there brought a concrete obstacle into focus.
Here, by
contrast, the lack of specificity leads to an amorphous
purported obstacle insufficient to disrupt West Virginia’s
historic police power.
Furthermore, the obstacle in Geier was more direct than
here because state and federal safety standards were at odds.
A
federal safety standard expressly did not mandate universal
airbags, and a state tort claim would, in effect, mandate them
retrospectively.
This contrasts with the argument here, which
is that a state tort claim should yield on preemption grounds to
a federal licensing standard.
Although licensing and safety are
related, it takes blurring the lines between them to fit this
case into Geier’s mold.
It is also important to note that Geier focused on a
federal interest in safety, not economics.
Although the Court
acknowledged that cost was a factor in the regulation, it did
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not find the tort claim preempted simply because allowing it to
proceed would upset a cost-benefit balance that a federal agency
had struck.
Therefore, Geier does not stand for the proposition
that an important federal objective arises whenever a federal
agency has weighed safety and cost in coming up with a standard.
Cf. Williamson, 562 U.S. at 335 (“But that fact—the fact that
DOT made a negative judgment about cost-effectiveness—cannot by
itself show that DOT sought to forbid common-law tort suits in
which a judge or jury might reach a different conclusion.”).
Beyond the lack of specificity in the purported important
federal interests, there is the further problem that the tort
claims here do not really stand in the way.
To the extent that
uniformity and efficiency mean allowing the market to decide
which carriers get business, the tort claims here do not defeat
that purpose.
The negligent selection claim does not seek to
impose additional licensing requirements on carriers or
constrict brokers to choosing only carriers who meet additional
licensing criteria.
All it does is impose liability for brokers
that knew or should have known that a chosen carrier was
incompetent or dangerous.
The vicarious liability claim is
similarly not an obstacle.
The tort claims here derive from generally applicable
background laws.
These laws are part of West Virginia’s
“historic police powers.”
See Wyeth, 555 U.S. at 565.
12
Such is
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the case here even more so here than in Smith, where the law at
issue was one applicable merely to all debt collectors doing
business in West Virginia.
See 769 F. Supp. 2d at 1046.
Negligent selection and vicarious liability are background laws
generally applicable to everyone doing business in West
Virginia.
Cf. Nyswaner v. C.H. Robinson Worldwide Inc., 353 F.
Supp. 3d 892, 895 (D. Ariz. 2019) (“Allowing Nyswaner's
negligent hiring claim to proceed would not create a patchwork
of state regulations as Robinson alleges.
Rather, it would only
require that Robinson conform to the general duty of care when
it hires trucking companies to deliver goods.”).
In Smith, the court noted that the defendant bank would
“remain free to engage in the federally regulated and sanctioned
business of mortgage servicing.”
769 F. Supp. 2d at 1046.
Likewise, here, Robinson is free to continue its broker business
and to continue selecting small carriers that it does not know
(or should not know) are incompetent. 4
As in Smith, where the
court noted that the bank would remain free from the grasp of
“unduly burdensome state regulation,” so too here, state law is
Robinson’s position appears to be that negligent selection
claims are always preempted when a carrier has operating
authority because federal law intends that no further
requirements be imposed for competency. If this is so, it seems
that a broker would be shielded against a negligent selection
claim even if it selected a carrier knowing for certain that the
carrier was incompetent or dangerous (despite its federal
license).
4
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not asking so much of Robinson here as to create an undue burden
on its operations.
The duty to use reasonable care in selecting
a carrier is not an onerous one.
Schramm v. Foster, 341 F.
Supp. 2d 536, 551 (D. Md. 2004).
Finally, the argument that the state law here must yield to
the federal interests of uniformity and efficiency largely
ignores the important federal interest in the safety of the
nation’s roads.
It cannot reasonably be argued that requiring
Robinson to use due care places anyone’s safety in jeopardy.
“To the contrary, imposing a common law duty upon third party
logistics companies to use reasonable care in selecting carriers
furthers the critical federal interest in protecting drivers and
passengers on the nation’s highways.”
Id. at 552.
The lesson of Geier, Wyeth, and Smith is that an obstacle
preemption defense requires specificity.
Pointing to general
goals and saying that state law tends to hinder those goals is
not enough.
See Soo Line R. Co. v. Werner Enterprises, 8 F.
Supp. 3d 1130, 1134–35 (D. Minn. 2014), aff’d sub nom. Soo Line
R.R. Co. v. Werner Enterprises, 825 F.3d 413 (8th Cir. 2016)
(“For conflict preemption to apply, however, there must be ‘far
greater specificity’ in the articulated conflict than a
generalized notion of public safety.”) (quoting Keller v. City
of Fremont, 719 F.3d 931, 944 (8th Cir. 2013)).
Moreover, there
is no obstacle even as to the general goals that Robinson
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asserts.
The tort claims here are based on generally applicable
background laws.
Obstacle preemption does not apply.
b. Negligent Selection
The negligent selection claim will proceed because there
are triable issues of fact as to this claim.
Plaintiffs do not
need to establish an industry standard (and a breach thereof) to
prove this claim.
Industry standards may be relevant to whether
there was a breach of the standard of care, but the existence of
a standard of care does not depend on the existence of an
industry standard.
As to causation, plaintiffs need not
establish it by a preponderance of the evidence at this
juncture; all they must show is a triable issue of fact
regarding causation.
Unlike with the vicarious liability claim,
they have done so with the negligent selection claim.
a. Standard of Care Argument
Robinson first argues that the negligent selection claim
fails because plaintiffs’ experts have not adequately
established the existence a standard of care that requires
anything more of Robinson than ensuring that the carriers it
selects are federally registered.
Robinson suggests that,
without such an industry standard, the standard of care
necessarily does not require diligence beyond what it did here.
Melding the concepts of a standard of care and an industry
standard, Robinson concludes that this claim fails for lack of
15
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an “industry standard of care.”
(ECF No. 187, at 23.)
The
premise of Robinson’s argument is that, on these facts, the
existence of an industry standard is indispensable to the
existence of a standard of care.
Robinson fails to establish
this premise; accordingly, its argument fails.
Robinson analogizes to cases in the deliberate intent
context where the lack of an industry safety standard was a
fatal flaw.
In the deliberate intent context, the violation of
state or federal safety rule, or of a “commonly accepted and
well-known” industry safety standard, is an element of the claim
under West Virginia law.
See Stiltner v. Wal-Mart Stores, Inc.,
2020 WL 4355066, at *3 (W. Va. July 30, 2020).
Robinson relies
on a body of case law fleshing out what qualifies as an industry
safety standard under West Virginia’s deliberate intent statute
to argue that plaintiffs have not established an industry
standard here.
One problem is that the definition of an
industry safety standard in that context is a unique creature of
statute.
The second, more crucial problem is that the breach of
an industry safety standard simply is not an element of a
negligent hiring claim. 5
Robinson is free to attempt to establish that the industry
standard is not to look behind the carrier’s registration. It
can seek to persuade the jury that its compliance with that
industry standard made its conduct reasonable. Compliance with
an industry standard, however, is generally not dispositive.
5
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b. Causation Argument
Robinson’s second argument—that any negligence in its
selection of J&TS did not cause the collision—is more colorable.
Robinson is correct that even if plaintiffs establish that J&TS
(or Copeland) was utterly incompetent, there must be some causal
connection between that incompetence and the collision.
Robinson is incorrect, however, that the evidence fails to
support a reasonable inference of causation.
Because plaintiffs
have advanced sufficient evidence to make an inference of
causation reasonable, they are entitled an opportunity to
persuade a jury to make that inference.
West Virginia has recognized negligent selection as a cause
of action and has expressly embraced § 411 of the Restatement
(Second) of Torts.
Va. 1999).
Sipple v. Starr, 520 S.E.2d 884, 890-91 (W.
Section 411 provides as follows:
An employer is subject to liability for physical harm
to third persons caused by his failure to exercise
reasonable care to employ a competent and careful
contractor
(a)
to do work which will involve a risk of physical
harm unless it is skillfully and carefully done,
or
(b)
to perform any duty which the employer owes to
third persons.
Restatement (Second) of Torts § 411 (1965).
Illustrations 3 and
4 to § 411 are key to Robinson’s argument because, together,
they draw a distinction between claims related to
17
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characteristics of incompetence and claims unrelated to such
characteristics.
See id.
Illustration 3 describes a collision
where a driver mistakes the accelerator for the brake (liability
under § 411), and Illustration 4 describes a collision where the
driver is distracted because he was chatting with a passenger
(no liability under § 411).
Id.
The rule, in other words, is that “before a plaintiff can
succeed on a claim of negligent hiring of an incompetent
independent contractor, he must prove not only that the
contractor was incompetent and that the employer knew or should
have known of that incompetence, but that the contractor's
incompetence was a proximate cause of his injuries.”
Jones v.
C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630, 647 (W.D.
Va. 2008).
On relatively similar facts, however, at least two
courts have not required the plaintiffs there to establish, at
the summary judgment stage, exactly how a particularized
manifestation of incompetence caused the harm.
See Riley v.
A.K. Logistics, Inc., 2017 WL 2501138, at *5 (E.D. Mo. June 9,
2017); Jones, 558 F. Supp. 2d at 648 (“While the court believes
that the causation element is not particularly strong in this
case, the court does find that the plaintiff has proffered
evidence sufficient to withstand summary judgment.”).
If the only reasonable inference on this record were that
the collision was unrelated to J&TS’s or Copeland’s alleged
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incompetence or habitual dangerous operations or driving, then
summary judgment would most likely be appropriate.
But there is
sufficient evidence of a causal connection such that the claim
should proceed to trial.
This collision resulted when a tractor-trailer completely
crossed a median into oncoming traffic.
seriously wrong.
Something went
Copeland has said it was a brake failure
(although there is evidence that this was not his original
account).
Plaintiffs’ experts say it was driver inattention,
including inattention related to fatigue.
An eyewitness thought
the maneuver into oncoming traffic was a controlled one.
If
inattention did cause the collision, common sense suggests that
the inattention was severe or that dangerous driving compounded
it.
Momentary distractions certainly may, but do not tend to,
send vehicles across medians into oncoming traffic.
It would
not be unreasonable to infer that speeding, for which Copeland
had been cited, compounded what may have otherwise been an
innocuous attention lapse.
J&TS was aware that Copeland had
been speeding while carrying its loads.
Plaintiffs’ experts
opine that Copeland’s explanation of losing all power to the
truck does not make sense.
Furthermore, there is evidence to ground a reasonable
inference that Copeland, despite his experience, was less than
competent, beyond his alleged propensity to speed.
19
Steven
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Belyus opines that Copeland did not understand how his braking
system worked or how to inspect it.
Lew Grill opines that
Copeland displayed an incorrect understanding of how to control
his speed.
Grill further opines that Copeland’s poor driving
“was not an isolated event, but rather was a pattern and
practice of complete disregard of the rules, regulations and
standards relative to professional drivers.”
Ex. J, at 15.)
(See ECF No. 199,
Robinson knew that Copeland would be the driver;
he is listed on the contract addendum, and it may have been a
breach of contract for J&TS to use a different driver.
On this record, a reasonable jury could find that J&TS was
incompetent, hired an incompetent or habitually dangerous
driver, and failed to supervise that driver properly.
A jury
could further find that the driver, Copeland, caused the
collision by driving in accordance with his alleged pattern of
dangerous driving, or a combination of dangerous driving and
inattention.
Such a finding may flow from a subsidiary finding
that J&TS failed to enforce hours of service rules and that
Copeland drove while fatigued, but it need not.
The evidence
appears to support an inference of causation even without such a
finding.
Further, it was foreseeable to Robinson that hiring a
carrier with no experience would lead to that carrier’s hiring a
dangerous driver and to that carrier’s facilitating dangerous
driving, and ultimately, to a catastrophic collision.
20
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c. Vicarious Liability
The vicarious liability claim fails for insufficient
evidence of Robinson’s right to control the carrier or driver.
Courts addressing this issue in similar cases have reached
varied results, illustrating how a slight change in the facts
could create a triable issue of fact.
But the court finds
Schramm and Jones particularly persuasive and can discern no
meaningful distinction between the relevant facts of those cases
and this one, and no different outcome when applying West
Virginia law to those facts.
Because there is no triable issue
of fact as to vicarious liability on this record, the court will
grant summary judgment as to this claim.
Under West Virginia law, determining “whether a masterservant relationship exists for purposes of the doctrine of
respondeat superior” involves considering four factors:
“(1)
Selection and engagement of the servant; (2) Payment of
compensation; (3) Power of dismissal; and (4) Power of control.”
Paxton v. Crabtree, 400 S.E.2d 45, 248 (W. Va. 1990).
fourth factor—power of control—“is determinative.”
Id.
The
independent contractor defense is “difficult to apply.”
The
Sanders
v. Georgia-Pacific Corp., 225 S.E.2d 218, 221 (W. Va. 1976).
On
one hand, the defense is indisputably a fundamental limitation
on tort liability.
See Zirkle v. Winkler, 585 S.E.2d 19, 22 (W.
Va. 2003) (noting its “longstanding lineage”).
21
On the other
Case 1:18-cv-00536 Document 293 Filed 08/26/21 Page 22 of 28 PageID #: 4244
hand, it is “riddled with numerous exceptions that limit its
applicability” and render it a “slender reed.”
Shaffer v. Acme
Limestone Co., 524 S.E.2d 688, 695 (W. Va. 1999).
Simply
stating in a contract that a party is an independent contractor
does not give the party that status.
Zirkle, 585 S.E.2d at 23.
“[T]he entity engaging an independent contractor is not
required to surrender all control in order to maintain an
independent contractor relationship.”
Cunningham v. Herbert J.
Thomas Mem’l Hosp. Ass’n, 737 S.E.2d 270, 279 (W. Va. 2012).
As
the Supreme Court of Appeals of West Virginia has explained,
An owner who engages an independent contractor to
perform a job for him or her may retain broad general
power of supervision and control as to the results of
the work so as to insure satisfactory performance of
the contract—including the right to inspect, to stop
the work, to make suggestions or recommendations as to
the details of the work, or to prescribe alterations
or deviations in the work—without changing the
relationship from that of owner and independent
contractor, or changing the duties arising from that
relationship.
Shaffer, 524 S.E.2d at 693.
It may be true that the relevant control must be, in some
sense, over the relevant (negligent) conduct.
See Anderson v.
Tug River Coal & Coke Co., 53 S.E. 713, 715 (W. Va. 1906)
(suggesting that question is whether there existed “the right to
control, in the given particular, the conduct of the person
doing the wrong” (emphasis added)).
the relevant conduct too narrowly.
22
But it is a mistake to view
See Roof Serv. of
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Bridgeport, Inc. v. Trent, 854 S.E.2d 302, 315 (W. Va. 2020).
West Virginia courts have not seen fit to do so.
The defendant in Trent argued that it was not vicariously
liable because it did not have control over how its employee
drove his personal vehicle when collecting scrap metal from a
company jobsite, off the clock.
See 854 S.E.2d at 315.
The
court rejected this framing of the relevant conduct, stating,
As to the determinative issue of power of control, the
focus on Mr. Wilfong operating his own vehicle is
misplaced in that it fails to allow for the fact that
the jobsite was controlled by Roof Service and, at any
time, it could have exercised control by rescinding
the permission to access it and collect the debris.
Id. at 315 (emphasis added).
Essentially, West Virginia law
appears to require a connection between what the principal has
the right to control and the negligent conduct of the agent, not
a perfect match between the two.
As mentioned above, two cases are particularly insightful
on the vicarious liability question here.
The first, Schramm,
involved a collision between a tractor-trailer and a passenger
vehicle resulting in catastrophic injuries.
540.
341 F. Supp. 2d at
Robinson was also the broker in that case.
Id.
The
plaintiffs there argued that several facts created a jury
question as to whether the broker had sufficient control over
the carrier.
Id. at 543.
First, the contract discussed
handling and inspection of the load and required that the
23
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carrier report problems uncovered during inspection.
Id.
Further, Robinson dispatched the driver, “directed him to pick
up and deliver the load at specific times, and gave him
directions.”
Id.
Robinson also required periodic calls from
the driver and gave the driver a number to call in the event
that a problem arose.
Id. at 543-45.
Unpersuaded, Judge Motz found that those facts were
insufficient to support a finding that the carrier was subject
to Robinson’s control:
There is no evidence that Robinson directed or
authorized Foster to drive in excess of the maximum
allowable hours or that Robinson had any control
whatsoever of the manner in which Foster conducted his
work. Robinson did not have the power to fire Foster
or to control his activities in transit. The only
thing Robinson had a right to control was the ultimate
result—the delivery of the load to its final
destination in New Jersey. The fact that Robinson
instructed Foster on incidental details necessary to
accomplish that goal is not enough to subject Robinson
to liability for Foster’s negligent acts during the
course of the shipment when Robinson had no control
over Foster’s movements.
Id. at 546.
Robinson was also the broker in Jones.
There, the relevant
facts offered to show Robinson’s control of the carrier included
that Robinson (1) required the driver to call in at dispatch,
delivery, and several points in between; (2) could terminate a
shipment at will; (3) facilitated advances and expedited
payments through a “T–Chek System” and “Quick Pay plan” (which
24
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arguably increased the small carrier’s financial dependence upon
Robinson); and (4) could unilaterally terminate the shipment.
Jones, 558 F. Supp. 2d at 637-38.
Additionally, drivers “called
in to report any problems or issues that arose during the
transport of the load, including equipment problems, traffic or
delays, or needs for advances through Robinson’s T–Chek System.”
Id. at 637.
Judge Conrad found that Robinson was an independent
contractor as a matter of law:
[H]ere Robinson did arrange pickup dates and times,
provided pickup and delivery addresses to the carrier,
communicated information from the shipper regarding
the loading and unloading of cargo, provided other
directions regarding the transportation of the load,
and required drivers to call in to report the status
of shipments. However, all of these activities were
directed toward the incidental details required to
accomplish the ultimate purpose for which Robinson had
been hired by its shippers—the delivery of a load to
its proper destination in a timely fashion. Although
Robinson could “bounce” a load from a particular
carrier, it did so primarily when that carrier could
not complete a delivery for whatever reason. There is
no evidence to indicate that Robinson could terminate
a particular driver, or that it asked carriers to do
so, or that Robinson controlled the details of the
carrier's operations, such as its driver’ schedules
during a trip, particular routes, or compensation
plans. Furthermore, although AKJ may have received
funds through Robinson’s T–Chek system, the court
finds that such advance payments on the carrier’s fee
do not indicate that Robinson exercised any heightened
level of control over AKJ or its operations.
Therefore, the court concludes that AKJ was an
independent contractor of Robinson and that, as a
result, Robinson cannot be held liable for the
negligence of AKJ or its driver, Arciszewski, under a
theory of respondeat superior.
25
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Id. at 639.
Under West Virginia law and on similar facts, the same
result obtains here.
Plaintiffs offer a laundry list of facts
that they say are evidence of Robinson’s right to control the
carrier and driver.
Most are easily dismissed, including the
fact that J&TS did not take jobs from other brokers; that
plaintiffs’ expert opines that the contract suggests control;
and that the contract required J&TS to use a food-grade trailer,
not mix shipments, and report damages or discrepancies.
A few facts, however, give the court pause.
First,
Robinson required the driver to call them before and after pickup, before and after delivery, and every morning throughout the
trip.
The driver was also to call if he experienced problems
along the way, and Robinson could contact him directly at any
time.
J&TS was not permitted to contact the shipper.
was listed on the bill of lading as the carrier.
tracked the load.
Robinson
And Robinson
Finally, the contract addendum contains
language possibly suggesting that Robinson may cut off the
carrier for not completing the task in a certain way:
“Carrier
acknowledges that failure to complete any terms and conditions
on this shipment may jeopardize or result in loss of future
business opportunities with C.H. Robinson and/or cancellation of
26
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the C.H. Robinson carrier contract.”
(See ECF No. 199, Ex. M,
4.)
As to the driver calls, Robinson says it was just wanted to
know about possible delays.
It was already tracking the
shipment, however, so requiring the driver to call in every day
seems excessive.
Together with the threat of loss of future
business for untimely deliveries, these daily calls could
conceivably open the door for Robinson to exert pressure on
drivers to drive faster.
If there were some evidence that
Robinson had used the daily calls to pressure drivers in the
past, there would likely be a jury question on vicarious
liability.
As it is, the facts concerning communications
between the driver and Robinson are virtually the same here as
they were in Schramm and Jones.
And the court is convinced
that, although it is close, these facts are insufficient to
support a reasonable inference of Robinson’s right to control
the carrier or driver.
The fact that Robinson prohibited the carrier’s contact
with the shipper and that Robinson was listed as the carrier
speak to the blurring of the lines between broker and carrier.
Robinson obviously does more than simply connect shippers and
carriers and then walk away.
Robinson appears to do everything
except physically move the goods to be shipped.
Some shippers
may reasonably be confused as to who the shipper actually is.
27
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The blurring of the lines favors a finding of agency.
In cases
where there really is no distinction between broker and shipper,
control may be a reasonable inference.
Here, though, there is
enough of a distinction to make the blurring, by itself,
insufficient.
On slightly different facts, the result may be
different.
IV.
Conclusion
For the foregoing reasons, Robinson’s motion for summary
judgment is GRANTED in part and DENIED in part.
only as to plaintiffs’ vicarious liability claim.
It is granted
Because
plaintiffs have withdrawn their punitive damages claim, the
portion of Robinson’s motion seeking summary judgment on that
claim and Copeland’s motion for summary judgment (ECF No. 184)
are DENIED as moot.
Plaintiffs’ motion to exceed the page limit
(ECF No. 196) and defendant’s motions to exceed the page limit
(ECF No. 181, 204) are GRANTED.
Robinson’s motion for leave to
file a supplemental memorandum (ECF No. 288) is DENIED for lack
of good cause.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to all counsel of record.
IT IS SO ORDERED this 26th day of August, 2021.
ENTER:
David A. Faber
Senior United States District Judge
28
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