2019 WL 3720620

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas, Houston (1st Dist.).
JESUS GARCIA, Appellant
v.
MTZ TRUCKING, INC., Appellee
NO. 01-18-00733-CV
|
Opinion issued August 8, 2019
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2015-55326
Panel consists of Justices Lloyd, Landau, and Countiss.

MEMORANDUM OPINION
Julie Countiss Justice
*1 Appellant, Jesus Garcia, challenges the trial court’s rendition of summary judgment in favor of appellee, MTZ Trucking, Inc., in his suit for negligent training and supervision and gross negligence. In his sole issue, Garcia contends that the trial court erred in granting MTZ Trucking summary judgment.

We affirm.

Background
In his second amended petition, Garcia alleges that he was hired by MTZ trucking to “operate dump trucks.” On July 3, 2014, while working as an employee of MTZ Trucking, he delivered a load of product to the premises of Perfect Plastic Recycling, Inc., a company “owned, operated, and managed” by Viral Thakkar. On that day, in the course of making his delivery, Garcia’s end-dump truck “came into contact with a live power line” on Perfect Plastic’s premises. Garcia suffered serious and permanent injuries as a result.

Garcia brought claims against MTZ Trucking for negligent training and supervision and gross negligence.1 Garcia asserted that MTZ Trucking owed a legal duty to train and supervise its employees, including Garcia; it breached its duty; and its breach proximately caused Garcia’s injuries. More specifically, Garcia alleged that MTZ Trucking failed to provide him with training on “the operation of the machinery,” that is, an end-dump truck; failed to supervise him “in his work with dump trucks”; and failed to “properly train[ ] or supervise[ ] [him] on avoiding electrical wires.” Garcia sought damages for past and future physical pain and mental suffering, past and future loss of earning capacity, past and future medical expenses, past and future physical impairment, past and future physical disfigurement, and “exemplary/punitive damages.”

MTZ Trucking answered, generally denying Garcia’s allegations and asserting defenses. MTZ Trucking then filed a combined no-evidence and matter-of-law motion for summary judgment, attaching exhibits. In the motion, MTZ Trucking asserted that, as a matter of law, it did not owe a duty to train or supervise Garcia “regarding any alleged dangerous condition asserted by [Garcia] on … Perfect Plastic’s premises.” Further, it asserted that Garcia is “a seasoned truck driver with over 33 years of experience,” he “had made over 100 deliveries dumping materials for” MTZ Trucking, and he “had driven th[e] exact same end[-]dump truck at least 15 previous times.” It therefore allegedly did not owe him a duty to train and supervise him “to pay attention to his surroundings before raising the [end-dump] truck’s trailer into power lines.” In other words, (1) because Garcia was “experienced in the type of work he was doing” when he was injured, (2) because “MTZ Trucking had no knowledge nor was it required to anticipate the presence of electrical wires” on Perfect Plastic’s premises, and (3) because “the dangers incident to electrical power lines are common and obvious to anyone,” MTZ Trucking owed “no duty pertaining to the power lines or [Garcia]’s operation of the truck.” And because the existence of a legal duty is an essential element of Garcia’s claims, MTZ Trucking argued that it was entitled to judgment as a matter of law.

*2 In response to MTZ Trucking’s motion, Garcia asserted that MTZ Trucking owed him the common-law duties to “hire, supervise, train, and retain competent employees” and “to adequately hire, train, and supervise [inexperienced] employees.” Garcia asserted that he “was not experienced in the work he was assigned[,] which was the unloading of end dumps.” Further, according to Garcia, MTZ Trucking had a “duty to train [him] under federal motor carrier safety law.” Garcia attached exhibits to his response too.

In reply to Garcia’s response, MTZ Trucking argued that it did not owe Garcia a “duty to properly train and supervise an inexperienced employee” because Garcia was not inexperienced. Further, Garcia “fail[ed] to provide sufficient evidence of a duty to train [him] for the specific dangers of overhead electrical wires and the dangers of contact” between an end-dump truck and such wires. According to MTZ Trucking, an employer owes no duty to warn an employee of hazards that are commonly known or already appreciated by the employee. And Garcia also “failed to provide sufficient evidence to establish” that MTZ Trucking had “an additional duty pursuant to” federal motor carrier safety law.

The trial court granted MTZ Trucking summary judgment.

Standard of Review
We review a trial court’s decision to grant summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference, and resolve any doubts, in the nonmovant’s favor. Id. If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court’s judgment if any of the asserted grounds is meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

A party seeking summary judgment may combine in a single motion a request for summary judgment under the no-evidence standard with a request for summary judgment as a matter of law. See TEX. R. CIV. P. 166a(c), (i); Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). When a party has sought summary judgment under both standards, we typically review the summary judgment first under the no-evidence standard. See Merriman, 407 S.W.3d at 248; Deweese v. Ocwen Loan Servicing L.L.C., No. 01-13-00861-CV, 2014 WL 6998063, at *2 n.1 (Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.) (mem. op.). However, we may review the summary judgment under the matter-of-law standard first if it would be dispositive. See Deweese, 2014 WL 6998063, at *2 n.1; Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet. denied); see also TEX. R. APP. P. 47.1.

In a matter-of-law summary-judgment motion, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a defendant moves for a matter-of-law summary judgment, it must either: (1) disprove at least one essential element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff’s cause of action. Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Once the movant meets its burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

Summary Judgment
*3 In his sole issue, Garcia argues that the trial court erred in granting MTZ Trucking summary judgment on his claims for negligent training and supervision and gross negligence because: (1) MTZ Trucking, as a “non-subscriber employer,” “ha[d] a legal duty to train or supervise [Garcia] on the specific hazards associated with operating an end dump in the vicinity of overhead electric wires when an injury occurs outside the non-subscriber’s premises”; (2) “the hazard of unloading an end dump in the vicinity of electric wires, and the risk of [electric shock] when exiting a cab of the end dump that might be in contact with overhead electrical wires,” were not “open and obvious hazards”; and (3) “there is a fact issue for the jury whether the hazards were ‘open and obvious.’ ”

A. Employee Negligence Suit Against “Non-Subscribing” Employer
Ordinarily, to establish negligence, a plaintiff must establish a duty, a breach of that duty, damages, and that the damages were proximately caused by the breach. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). The “threshold inquiry” is “whether the defendant owes a legal duty to the plaintiff.” Centeq Realty, 899 S.W.2d at 197. Whether a duty exists is a question of law for the court to decide from the facts surrounding the occurrence in question. Id.; Advance Tire & Wheels, LLC v. Enshikar, 527 S.W.3d 476, 480 (Tex. App.—Houston [1st Dist.] 2017, pet. dism’d). We review questions of law de novo. Advance Tire & Wheels, 527 S.W.3d at 480.

The Texas Workers’ Compensation Act—see TEX. LAB. CODE §§ 401.001–419.007—was enacted in response to the needs of employees who, despite escalating industrial accidents, were increasingly being denied recovery for injuries sustained in the course and scope of their employment. Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000); Dodge, 187 S.W.3d at 529. The Act allows an injured employee, whose employer subscribes to workers’-compensation insurance, to recover without having to establish the employer’s fault and without regard to the employee’s own negligence. See Keng, 23 S.W.3d at 349. In exchange, the employee receives a lower, but more certain, recovery than would have been possible under the common law. Id. at 350.

When, however, an employer opts out of the workers’-compensation system, making it a “non-subscribing” employer, its employees retain their common-law rights. Id.; Dodge, 187 S.W.3d at 529. In an employee’s suit against his or her “non-subscriber” employer, the Act precludes the employer from asserting the defenses “that: (1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.” TEX. LAB. CODE § 406.033(a); see also Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 200 (Tex. 2015); Dodge, 187 S.W.3d at 529.

Here, the parties agree that MTZ Trucking is a “non-subscribing” employer, making it responsible for its employees’ work-related injuries under common-law negligence principles. See Keng, 23 S.W.3d at 349–50; Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995) (“Because Eastex is a workers’ compensation nonsubscriber, Colwell must establish negligence by Eastex in order to recover.”).

At common law, employers owe certain nondelegable and continuous duties to their employees who are acting in the course and scope of the employment relationship. See Keng, 23 S.W.3d at 349–50; Dodge, 187 S.W.3d at 529. These include the duties to warn about the hazards of employment; to supervise activities; to furnish a reasonably safe workplace; to furnish reasonably safe instrumentalities with which to work; and to provide necessary equipment, training, or supervision. See Elwood, 197 S.W.3d at 794; Advance Tire & Wheels, 527 S.W.3d at 480; Dodge, 187 S.W.3d at 529.

*4 However, a “non-subscribing” employer’s common-law duties to its employees do not make it an insurer of its employees’ safety. Elwood, 197 S.W.3d at 794. An employer owes no duty to warn its employee of hazards that are commonly known or already appreciated by the employee. Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 568 (Tex. 2007); Elwood, 197 S.W.3d at 794.2 This rule means, for example, that an employer owes “no duty to warn of ‘obvious risks’ that are common knowledge” and no “duty to train employees regarding the commonly-known dangers of driving while fatigued.” Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412–13 (Tex. 2009).

B. Duty
In a portion of his sole issue, Garcia argues that the trial court erred in granting MTZ Trucking summary judgment because: (1) MTZ Trucking “has a legal duty to train or supervise [Garcia] on the specific hazards associated with operating an end dump in the vicinity of overheard electric wires,” even though Garcia’s injury did not occur on MTZ Trucking’s premises; (2) “the hazard of unloading an end dump in the vicinity of electric wires, and the risk of [electric shock] when exiting a cab of the end dump that might be in contact with overhead electrical wires” are not “open and obvious hazards”; and (3) a fact issue exists as to “whether the hazards were ‘open and obvious.’ ”

1. Duty Allegations Pleaded
As an initial matter, we address Garcia’s purported claim for negligent training and supervision arising out of his “exiting [the] cab of the end dump.” Specifically, we look to Garcia’s second amended petition to determine whether he alleged, as he now advocates on appeal, that MTZ Trucking had a duty to train or supervise him on “the risk of [electric shock] when exiting a cab of the end dump that might be in contact with overhead electrical wires.” Cf. Hand v. Dean Witter Reynolds Inc., 889 S.W.2d 483, 489–90 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (addressing first “new negligence theory concerning appellees’ duty, or lack thereof, as it relates to [plaintiff’s] negligence claim,” which “was not pled in [plaintiff’s] original petition”).

“Pleadings, not motions, determine the issues and parameters of a contest.” In re Energy Transfer Fuel, L.P., 298 S.W.3d 343, 346 n.2 (Tex. App.—Tyler 2009, orig. proceeding); accord Alashmawi v. IBP, Inc., 65 S.W.3d 162, 171 (Tex. App.—Amarillo 2001, pet. denied); Ely v. Gen. Motors Corp., 927 S.W.2d 774, 782 (Tex. App.—Texarkana 1996, writ denied) (“[P]leadings … frame the issues involved in ruling upon [a] summary judgment motion.”); Jobe v. Lapidus, 874 S.W.2d 764, 765–66 (Tex. App.—Dallas 1994, writ denied). A pleading setting forth a claim for relief must contain a short statement of the causes of action alleged “sufficient to give fair notice of the claim involved.” TEX. R. CIV. P. 47(a). In determining whether a pleading meets this fair-notice standard, we are to liberally construe the pleading, but, “[e]ven so, a liberal construction does not require a court to read into a petition what is plainly not there.” Bos v. Smith, 556 S.W.3d 293, 306 (Tex. 2018) (internal quotation omitted).

*5 In his second amended petition, Garcia brought claims against MTZ Trucking for negligent training and supervision and gross negligence. Garcia asserted that MTZ Trucking owed a legal duty to train and supervise its employees, including Garcia; MTZ Trucking breached its duty; and MTZ Trucking’s breach proximately caused Garcia’s injury. Garcia further pleaded:
[He] was hired by … MTZ Trucking to operate dump trucks, and … MTZ Trucking failed to provide [Garcia] with training on the operation of the machinery…. MTZ Trucking also failed to supervise [him] in his work with dump trucks. [He] was not properly trained or supervised on avoiding electrical wires.
He supported his claims against MTZ Trucking with the following factual allegations:
On or about July 3, 2014, [Garcia] was transporting material for his employer, … MTZ Trucking, on … Perfect Plastic[’s] … premises…. Specifically, while [Garcia] was working on … Perfect Plastic[’s] … premises and under … Perfect Plastic[’s] … direction, his [end-dump truck] came into contact with a live power line, causing [his] injuries and damages …. There were no warning signs to this area to warn invitees of the dangerous condition nor were there protection barricades to prevent injuries to invitees such as that which occurred to [Garcia]…. Defendants negligently caused and negligently permitted such condition to exist and negligently failed to warn [Garcia] of the condition, despite the fact that Defendants knew, or in the exercise of ordinary care, should have known of the existence of the condition and that there was a likelihood of someone being injured as happened to [Garcia]. More specifically, Defendants had actual or constructive knowledge of the condition on the premises and that the condition posed an unreasonable risk of harm. Defendants did not exercise reasonable care to reduce or eliminate the risk, and Defendants’ failure to use such care proximately caused [Garcia]’s injuries.

Notably, Garcia does not, in his second amended petition, plead any facts that would have put MTZ Trucking on notice that he was making a claim based on MTZ Trucking’s purported duty to train or supervise him not to exit an end-dump truck’s cab when the truck has struck, and is in continuing contact with, power lines. See Bos, 556 S.W.3d at 306 (court not required to read into petition “what is plainly not there”); Hand, 889 S.W.2d at 489–90. Thus, Garcia failed to allege any claim arising out of MTZ Trucking’s purported duty to train or supervise Garcia on cab-exiting. Accordingly, we restrict our review of Garcia’s negligent supervision and training claims to what is actually contained in his second amended petition—claims arising out of MTZ Trucking’s purported duty related to avoiding power lines in the first place while operating the end-dump truck. See Alashmawi, 65 S.W.3d at 171 (refusing to consider duty argument advanced on appeal but not contained in pleadings); Hand, 889 S.W.2d at 490 (“Thus, the question is whether [defendants] had a duty to purchase the options or take necessary steps to purchase the options because this was the only act of negligence alleged by [plaintiff] in her petition.” (internal quotation omitted)).

2. MTZ Trucking’s Duty
MTZ Trucking argued in its motion for summary judgment that it was entitled to summary judgment as a matter of law because it did not owe Garcia a legal duty. MTZ Trucking argued that Garcia is “a seasoned truck driver with over 33 years of experience,” he “had made over 100 deliveries dumping materials for” MTZ Trucking, and he “had driven th[e] exact same end[-]dump truck at least 15 previous times.” MTZ Trucking therefore contended that it owed Garcia no duty to train and supervise him “to pay attention to his surroundings before raising the [end-dump] truck’s trailer into power lines on … Perfect Plastic’s property while [Garcia was] under … Perfect Plastic’s direction and control.”

*6 Further, according to MTZ Trucking’s motion, Garcia was “experienced in the type of work he was doing” when he was injured, MTZ Trucking had “no knowledge nor was it required to anticipate the presence of electrical wires” on Perfect Plastic’s premises, and “the dangers incident to electrical power lines are common and obvious to anyone.” MTZ Trucking therefore argued that it owed Garcia “no duty pertaining to the power lines or [Garcia]’s operation of the [end-dump] truck” near such power lines. See Jack in the Box, 221 S.W.3d at 568 (employer owes no duty to warn its employees of hazards that are commonly known or already appreciated by employee); Elwood, 197 S.W.3d at 794 (same).

MTZ Trucking attached to its motion the deposition testimony of Thakkar, an owner of Perfect Plastic. In his deposition, Thakkar testified about another event involving Garcia on Perfect Plastic’s premises. The event occurred “[a] few days before” the incident in question. During the earlier event, Garcia was operating an end-dump truck and “dumped product in about the very same area” where he was operating the truck when he was later injured. During the earlier event, Garcia drove his end-dump truck with the trailer up in the air, but Perfect Plastic’s “spotter” was present and told Garcia “to stop” because Garcia “almost hit[ ] the [electrical] wire” with his truck. According to Thakkar, on the day Garcia was injured, the “[s]ame exact thing” happened again—Garcia drove his end-dump truck with the trailer up in the air near the overhead electrical wires. This time, however, Garcia hit the electrical wires with his truck.

MTZ Trucking also attached to its motion the deposition testimony of Garcia. During his deposition, Garcia testified that when he applied for a job with MTZ Trucking, he discussed his “experience as a truck driver” with MTZ Trucking’s owner. According to Garcia, he has been a truck driver for thirty-three years. While driving an end-dump truck, he “look[s] around [his] surroundings before [he] move[s] [his] truck in to see if [he] can fit in and what’s around [him].” Garcia agreed that “[p]art of [his] job as a truck driver is to know the capacity of [his] truck” and its height and length. Before his injuries, Garcia had successfully operated end-dump trucks, delivering product “many times while working for MTZ [Trucking] without getting hurt.” He had practiced operating the end-dump truck’s trailer-lifting mechanism several times. He had been on Perfect Plastic’s premises before July 3, 2014, “three or four times,” driving the same truck that he drove during the July 3, 2014 incident.

Garcia further testified that on the day of the incident, he entered Perfect Plastic’s premises and was driving his end-dump truck, but he “didn’t see any power lines.” He “wasn’t looking out for that…. [He] was paying attention to the spotter.” He “didn’t look for” the power lines near his truck, or “just didn’t see them,” because he “was paying attention to the spotter.” And when he later “got out of [his] truck to go to the [truck’s] gate to open it up,” he “didn’t look” for the power lines then either.

During his deposition, Garcia agreed that, “in general” with regard to “abid[ing] by posted speed limits,” MTZ Trucking does not have “an obligation to tell [him] that or to teach [him] that or to train [him about] that”—he “already know[s] that.” That is because, according to Garcia, it is “common sense” to abide by the speed limit. He contrasted the common sense of abiding by posted speed limits with other, unforeseen events: “Yes. We know that. Things that I’ve been through already, you know, I should know things. [Things] [t]hat I’ve never been through, that’s where I have the problem.”

*7 MTZ Trucking also attached to its motion the deposition testimony of its owner, Angel Martinez. On the topic of training Garcia “how to deal with power lines,” Martinez testified that Garcia “could pay attention out there” and that he could “look around … [n]ot just for those wires, but he [has] to look around for everything.” Further, Martinez explained that when he, a commercially licensed truck driver with two and a half decades of experience, is “driving to a facility to take a load,” he is concerned about and “looking out for things like a power line.”

MTZ Trucking also attached to its motion the affidavit of Bradley Hubbard, a “transportation and securement specialist in the field of transportation and safety management.” Hubbard testified that he has “management, transportation, logistics, safety, and driving experience” and is “a certified trainer in Safety and Compliance.” Hubbard testified that he investigated Garcia’s incident in order to determine its cause. To do so, he reviewed photographs of the incident’s location and Garcia’s, Thakkar’s, and Martinez’s depositions. He also relied on a section of the “Texas Department of Public Safety CDL Handbook” that, according to his affidavit, provides:
Hitting overhead objects is a danger. Make sure you always have overhead clearance…. Before you back into an area, get out and check for overhanging objects such as trees, branches, or electric wires. It’s easy to miss seeing them while you are backing. (Also check for other hazards at the same time.).
(Emphases in original; internal quotations omitted.)

Based on his investigation, Hubbard opined that Garcia “had numerous opportunities on the day of the incident to simply look and see the obvious presence of the electrical power lines overhead.” He also opined that “Garcia’s failure to pay attention to his surroundings[,] despite at least two decades of driving experience and despite the fact [that] he previously even owned his own trucking company[,]” caused his injury. According to Hubbard, “[o]ne of the first things any driver is taught i[s] to make sure he is aware of what is around him.” Hubbard opined that Garcia, given his “over twenty years of experience,” “should have known this basic safety precaution.”

By its motion and the testimony from Thakkar, Garcia, Martinez, and Hubbard, MTZ Trucking carried its summary-judgment burden to conclusively disprove the duty element of Garcia’s negligence claims by bringing them within the ambit of the rule that an employer owes its employees no duty to warn of hazards that are commonly known or already appreciated by the employees. See Jack in the Box, 221 S.W.3d at 568; Elwood, 197 S.W.3d at 794; Lujan, 433 S.W.3d at 704. Here, the dangers of operating an end-dump truck with its trailer up in the air near overhead electrical wires would be commonly known to a reasonable person. See Nabors Drilling, U.S.A., 288 S.W.3d at 412–13; Jack in the Box, 221 S.W.3d at 568–69; Elwood, 197 S.W.3d at 794–95. Accordingly, we hold that MTZ Trucking owed Garcia no duty “to train or supervise [Garcia] on the specific hazards associated with operating an end[-]dump [truck] in the vicinity of overheard electric[al] wires.”

To the extent that Garcia argues in his brief that MTZ Trucking, (a) under the Restatement (Second) of Torts, owed him a duty to “exercise reasonable care” for “undertak[ing], gratuitously or for consideration, to render services to another which [it] should recognize as necessary for the protection of the other’s person or things”3 and, (b) under federal motor carrier safety law, duties to “verify that drivers are qualified to operate the commercial vehicle [that] they are to drive to prevent serious harm to the driver and all of us” and to “not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle,” Garcia’s arguments are unavailing.4

*8 Here, the incident that resulted in Garcia’s injuries arose from a “hazard[ ] … commonly known or already appreciated by” Garcia. See Jack in the Box, 221 S.W.3d at 568; Elwood, 197 S.W.3d at 794. When a hazard is commonly known or already appreciated by the employee, the rule relieving an employer of any duty to its employee relating to such a hazard operates as an exception to any other duties that the employer may owe to the employee.

Next, in his brief, Garcia asserts that a fact issue exists as to “whether the hazards in this case are open and obvious” and that he presented evidence “that the hazard in question is not open and obvious.”

When an appellant must demonstrate the existence of a genuine issue of material fact to defeat summary judgment, the appellant must direct us to the evidence in the record that purportedly creates the fact issue. See Amboree v. Bonton, No. 01-14-00846-CV, 2015 WL 4967046, at *7 (Tex. App.—Houston [1st Dist.] Aug. 20, 2015, no pet.) (mem. op.); Bich Ngoc Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied) (“Merely citing generally to voluminous summary judgment evidence in response to either a no-evidence or traditional motion for summary judgment is not sufficient to raise an issue of fact to defeat summary judgment. In the absence of any guidance from the non-movant where the evidence can be found, the trial and appellate courts are not required to sift through voluminous deposition transcriptions in search of evidence to support the non-movant’s argument that a fact issue exists.” (internal citations and quotation omitted)); Daniel v. Webb, 110 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, no pet.) (“It is not our duty to sua sponte conceive of potential fact issues and then search the appellate record for evidence supporting their existence.”); Yard v. DaimlerChrysler Corp., 44 S.W.3d 238, 243 (Tex. App.—Fort Worth 2001, no pet.).

Here, Garcia’s appellate briefs provide no discussion or analysis about his statement that a fact issue exists as to whether hazards in this case were “open and obvious.” And he does not direct this Court to any evidence in the record raising his purported fact issue. Accordingly, we need not address Garcia’s assertion that a purported fact issue exists as to whether “the hazards in this case were open and obvious.”

To sum up, we have held that MTZ Trucking owed Garcia no duty “to train or supervise [Garcia] on the specific hazards associated with operating an end-dump [truck] in the vicinity of overheard electric[al] wires.” We therefore conclude that Garcia’s claims for negligent training and supervision must fail. See Jack in the Box, 221 S.W.3d at 568–69; Elwood, 197 S.W.3d at 794–95. And because the negligence claims fail, the gross-negligence claims fail too. See Sanders v. Herold, 217 S.W.3d 11, 19–20 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (overruling appellants’ issue concerning their gross-negligence claim because court of appeals also held that appellants’ negligence claim failed for lack of duty); Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.—Austin 1990, writ denied) (“[O]ne’s conduct cannot be grossly negligent without being negligent.”). Accordingly, we hold that the trial court did not err in granting MTZ Trucking summary judgment.

We overrule Garcia’s sole issue.

Due to our disposition, we need not address any of Garcia’s remaining arguments in his appellate briefs. See TEX. R. APP. P. 47.1.

Conclusion
*9 We affirm the judgment of the trial court. We dismiss all pending motions as moot.

All Citations
Not Reported in S.W. Rptr., 2019 WL 3720620

Footnotes

1
Garcia also brought claims against Perfect Plastic and Thakkar, who are not parties to this appeal.

2
We note that, in his appellate brief, Garcia argues that Jack in the Box and similar cases “discuss the lack of a duty in a premises[-]liability case when the hazard to be warned against is ‘open and obvious.’ ” According to Garcia, this means that Jack in the Box and similar cases “are premises[-]liability cases” that “have no application” to Garcia’s claims. We disagree. The rule from Jack in the Box and Elwood that an employer has no duty to warn its employee of hazards that are commonly known or already appreciated by the employee may be applied to the employee’s negligence suit for injuries sustained off of premises owned or controlled by the employer.

3
RESTATEMENT (SECOND) OF TORTS § 323 (1965) (“Negligent Performance of Undertaking to Render Services”).

4
We express no opinion on whether MTZ Trucking owed Garcia these purported duties. Further, we need not address MTZ Trucking’s assertion in its brief that Garcia failed to plead that it owed him duties under section 323 of the Restatement (Second) of Torts and federal motor carrier safety law. See TEX. R. APP. P. 47.1.

2019 WL 3816890

United States District Court, D. Massachusetts.
RICHWELL GROUP, INC., d/b/a MAXFIELD SEAFOOD, Plaintiff,
v.
SENECA LOGISTICS GROUP, LLC, Defendant.
Civil Action No. 17-cv-11442-IT
|
Filed 08/14/2019

MEMORANDUM & ORDER
Indira Talwani United States District Judge

I. Introduction
*1 Richwell Group, Inc., d/b/a Maxfield Seafood (“Maxfield”), brings federal and state claims against Seneca Logistics Group, LLC (“Seneca”), for the loss of a truckload of lobster. Seneca counterclaims for failure to pay for other lobster shipments. Before the court are cross-motions for summary judgment on all claims and counterclaims.

As set forth further below, because Maxfield has established that Seneca acted as a motor carrier for the load of lobster at issue in Maxfield’s complaint, Maxfield is entitled to relief under the Carmack Amendment, 49 U.S.C. § 14706(a)(1). Accordingly, as to Count I of the Amended Complaint [#18], Seneca’s Motion for Summary Judgment [#79] is DENIED and Maxfield’s Cross-Motion for Summary Judgment [#82] is ALLOWED as to liability. The amount of damages remains in dispute. Because the Carmack Amendment preempts state law claims, Seneca’s Motion for Summary Judgment [#79] is ALLOWED as to Maxfield’s common law claims, Counts 2 and 3 of the Amended Complaint [#18].

As also set forth further below, Seneca has established that Maxfield failed to pay two invoices for other lobster shipments. Seneca’s Motion for Summary Judgment [#79] is therefore ALLOWED on Seneca’s breach of contract claim, Count 1 of the Answer and Counterclaim [#57]. Seneca has not offered evidence, however, sufficient to permit a jury to find that Maxfield entered these agreements intending not to pay, and therefore, as to Seneca’s claims for breach of the implied covenant of good faith and fair dealing, fraud, and M.G.L. c. 93A, Counts 2 through 5 of the Answer and Counterclaim [#57], Seneca’s motion is DENIED and Maxfield’s Cross-Motion for Summary Judgment [#82] is ALLOWED.

II. Summary Judgment Standard
Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int’l Grp., Inc. v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001). In deciding cross-motions for summary judgment, the court properly “resolve[s] all factual disputes and any competing, rational inferences in the light most favorable to the party against whom summary judgment has [been filed].” Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996). Barring special circumstances, the court “must consider each motion separately, drawing inferences against each movant in turn.” Tutor Perini Corp. v. Banc of Am. Sec. LLC, 842 F.3d 71, 84 (1st Cir. 2016) (quoting EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 n.8 (1st Cir. 1995)).

III. Procedural History
The court denied Seneca’s Amended Motion to Dismiss [#41] as to Maxfield’s claims pursuant to the Carmack Amendment and took the remaining arguments from Seneca’s motion under advisement. Mem. and Order [#48]. Following discovery, the parties filed the pending motions for summary judgment.

IV. Maxfield’s Claims

A. Factual Background1
*2 On October 30, 2015, Maxfield and Seneca executed an agreement for “brokerage of freight.” Am. Compl., Account Application, Ex. A (“Contract”) [#18-1]. The Contract states that it “is the sole governing document with respect to the brokerage of freight hereunder.” Id. Between December 2015 and December 2016, Seneca handled twenty-seven loads of cargo for Maxfield at various locations in New England and California. Seneca Facts, Spreadsheet of Loads, Ex. E [#81-5]. On Monday, December 12, 2016, Diane Zhang, the import manager for Maxfield, emailed Seneca about moving loads of frozen seafood later that week from Preferred Freezer Services of Boston Harbor, LLC (“Preferred Freezer”), and Rich’s Transportation. Maxfield Facts, Deposition of Vincent Grandillo2 (“Grandillo 30(b)(6) Dep.”) at 33:2-12 [#83-1]; see Affidavit of Elizabeth S. Zuckerman (“Zuckerman Aff.”), Email Exchange Re: Pickup from Boston, Ex. C [#85-3]; Zuckerman Aff., Email Exchange Re: Cooked Bullets and Raw Split Bullets, Ex. B [#85-2].

On Thursday, December 15, 2016, an individual purporting to work for Rapid Logistics Services, Inc. (“Rapid”), contacted Seneca about transporting the frozen seafood from Preferred Freezer and Rich’s Transportation. Grandillo 30(b)(6) Dep. at 35:15-24 [#83-1]. That same morning, Chris Carcione of Seneca sent an email to rapidlogisticsinc@gmail.com with a “carrier packet and rate confirmation for load 2151.” Zuckerman Aff., Email Exchange Re: Carrier Packet and Rate Confirmation, Ex. F [#85-6]. The reply, purportedly from a dispatch manager at Rapid named Frank Whittaker, stated “[p]acket and [c]onfirmation” (presumably attaching the completed forms). Id. Six minutes later, Carcione sent the “dispatch form for load 2151” to the rapidlogisticsinc@gmail.com email address. Id.

Later that day, a man who identified himself as Ernesto Perez and claimed to work for Rapid arrived at Preferred Freezer to pick up the lobster stored there. Grandillo 30(b)(6) Dep. at 31:1-3, 82:2-12 [#83-1]. Preferred Freezer called Grandillo to confirm the identity of the pick-up driver, and Grandillo confirmed that Ernesto Perez was “the guy.” Maxfield Facts ¶ 18 [#83]; Seneca Facts II ¶ 18 [#90]; Grandillo 30(b)(6) Dep. at 81:7-82:21 [#83-1]. The driver picked up the lobster from Preferred Freezer and signed the Bill of Lading. Grandillo 30(b)(6) Dep. at 31:1-10 [#83-1]; Am. Compl., Bill of Lading, Ex. B [#18-2].

Seneca had scheduled the second load of lobster to be picked up from Rich’s Transportation later that day (and then rescheduled the pickup for the next morning), but no pickup occurred. See Zuckerman Aff., Email Exchange Re: Cooked Bullets and Raw Split Bullets, Ex. B at 2 [#85-2]; Zuckerman Aff., Email Exchange Re: pickup from Boston, Ex. C. at 2 [#85-3]. In an email on Monday, December 19, 2016 at 10:53 a.m., Grandillo wrote to Zhang:
I tried calling but I could not get you on the phone. On Friday our truck informed me that these two pallets were picked up. I am just now finding out that they were not and our d[r]iver lied to us … I was given the wrong info from the driver and I did not confirm this with the shipper.
Zuckerman Aff., Email Exchange Re: Richs Pick, Ex. D at 2 [#85-4].

At some point, Seneca also learned that the lobster picked up from Preferred Freezer was missing. Seneca attempted to contact Rapid at the rapidlogisticsinc@gmail.com email address, but received an automated reply indicating the email account was deactivated. Grandillo 30(b)(6) Dep. at 60:13-20 [#83-1]. Later on Monday, December 19, Grandillo advised Maxfield that the lobster picked up from Preferred Freezer was missing and that Seneca was unable to contact the driver. Grandillo 30(b)(6) Dep. at 60:21-61:1 [#83-1]; Zuckerman Aff., Email Exchange Re: Richs Pick, Ex. D at 2 [#85-4]; Am. Compl. ¶ 21 [#18]; Answer to Am. Compl. and Countercl. ¶ 21 [#57].

Seneca later learned that the carrier package containing a W-9, U.S. DOT Certificate, Certificate of Liability Insurance, and other documents the purported dispatcher had provided Seneca was fake. Zuckerman Aff., Fake Rapid Carrier Package, Ex. E [#85-5]; see Affidavit of Diane Zhang (“Zhang Aff.”) ¶ 4 [#84]; Zhang Aff., Email Exchange Re: Richwell Group Claim, Ex. B at 4 [#84-2]. Later, Grandillo reviewed a copy of the driver’s license provided for Perez and determined it was fake as well. Grandillo 30(b)(6) Dep. at 66:9-18 [#83-1].

B. Analysis
*3 Maxfield argues that Seneca is liable as a motor carrier for the loss of the lobster under the Carmack Amendment. Maxfield Mot. for Summ. J. at 3-6 [#82]. Seneca argues that it is a broker, rather than a carrier, and therefore the Carmack Amendment does not apply. Seneca Mem. in Support of Mot. for Summ. J. at 1 [#80].

The Carmack Amendment to the Hepburn Act is a 1906 addition to the Interstate Commerce Act (“ICA”), 24 Stat. 379, which provides a cause of action for the loss or damage of goods in interstate commerce received for transportation by a “carrier.” 49 U.S.C. §§ 14706(a)(1), (d); Rini v. United Van Lines, 104 F.3d 502, 504-06 (1st Cir. 1997). A carrier covered by the Carmack Amendment that receives property for transportation is “liable to the person entitled to recover under the receipt or bill of lading” for the actual loss or injury to the property. 49 U.S.C. § 14706(a)(1); Fredette v. Allied Van Lines, 66 F.3d 369, 372 (1st Cir. 1995). Therefore, if Seneca is a motor carrier under the Carmack Amendment, it is liable for the lost lobster.

The ICA defines a motor carrier as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). The ICA further defines “transportation” as:
A. [A] motor vehicle … or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use; and
B. [S]ervices related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.
49 U.S.C. § 13102(23). A federal regulation elaborates on these definitions:
[M]otor carriers … are not brokers … when they arrange or offer to arrange the transportation of shipments which they are authorized to transport and which they have accepted and legally bound themselves to transport.
49 C.F.R. § 371.2(a).

When analyzing whether an entity operated as a carrier, courts look to how the party acted during the “specific transaction” at issue, which includes “the understanding among the parties involved [and] consideration of how the entity held itself out.” ASARCO LLC v. England Logistics Inc., 71 F. Supp. 3d 990, 998 (D. Ariz. 2014); Schramm v. Foster, 341 F. Supp. 2d 536, 550 (D. Md. 2004); see CGU Int’l Ins., PLC v. Keystone Lines Corp., No. C-02-3751 SC, 2004 WL 1047982, at *2 (N.D. Cal. May 5, 2004). Consistent with the statutory definition, other courts have found that a party is a carrier in a “specific transaction” if it takes responsibility for a shipment, whether or not it performed the actual transportation or labels itself as a broker. Tryg Ins. v. C.H. Robinson Worldwide, Inc., 767 F. App’x 284, 287 (3d Cir. 2019); Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1302 (11th Cir. 2018); ASARCO LLC, 71 F. Supp. 3d 990, 998; Lumbermens Mut. Cas. Co. v. GES Exposition Servs., 303 F. Supp. 2d 920, 921 (N.D. Ill. 2003).

Seneca argues that the Contract obliged it to provide “brokerage” services, that it has no trucks, drivers, or infrastructure that a traditional carrier would have, that it is registered with the Department of Transportation as a broker, and that it utilized third-party carriers for each of the previous Maxfield orders. However, “[w]hether a company is a broker or a carrier is not determined by what the company labels itself, but by [ ] its relationship to the shipper.” Hewlett-Packard Co. v. Brother’s Trucking Enterprises, Inc., 373 F. Supp. 2d 1349, 1352 (S.D. Fla. 2005). Further, the licenses that Seneca holds, its previous transactions with Maxfield, and its label in the Contract are not dispositive to its role during this specific transaction. See Ensco, Inc. v. Weicker Transfer and Storage Co., 689 F.2d 921, 925 (10th Cir. 1982); Delta Research Corp. v. EMS, Inc., No. 04-60046, 2005 WL 2090890, at *5 (E.D. Mich. Aug. 29, 2005) (“[a party] may be liable as a [ ] carrier if it acts as one, even if it is not licensed”). Seneca argues that the Contract said that Seneca would “contract directly with a carrier,” but that promise does not mean that Seneca did so in this particular transaction.

*4 The record shows that Seneca, and no other entity, arranged for all of the details relating to the pickup of the load of lobster. Grandillo arranged the route and order of the pickups and committed to the delivery minutes after the request was made, demonstrating that no separate entity was involved in the planning process. See Zhang Aff., Email Exchange Re: Richs Pick, Ex. A at 2 [#84-1]; Zuckerman Aff., Email Exchange Re: Cooked Bullets and Raw Split Bullets, Ex. B [#85-2]. When Zhang asked if Grandillo could “find a good rate” for the order, Grandillo answered two minutes later and said, “[w]e can do about the same as last time.” Zuckerman Aff., Email Exchange Re: pickup from Boston, Ex. C at 4 [#85-3]. Grandillo’s prompt responses are evidence that the “we” at issue was Seneca and not a third-party carrier. The next day, before Zhang confirmed a shipment was going forward, Grandillo contacted Preferred Freezer about picking up the shipment and then reached out to Zhang about the shipment. Id. at 3. Later that same day, Grandillo emailed Zhang the truck’s route, indicated “we” could do three pickups in one day, but expressed “I would prefer to start picking up Thursday.” Id. at 2. Grandillo asked Cape Seafood to “pinwheel” the lobster onto the truck during discussions via email with Maxfield about the load. Zuckerman Aff., Email Exchange Re: Cooked Bullets and Raw Split Bullets, Ex. B at 7 [#85-2]. Whittaker, the purported dispatcher, had no role or control in any of these details, but instead took direction from Seneca regarding the load.

Seneca did not broker an agreement between a carrier and Maxfield. Instead Seneca engaged the driver and truck on the morning of the scheduled pickup. On the date of the delivery, Carcione sent a carrier packet, rate confirmation, and dispatch form to rapidlogisticsinc@gmail.com. Zuckerman Aff., Email Exchange Re: Carrier Packet and Rate Confirmation, Ex. F at 2 [#85-6]. When the truck was reportedly having refrigeration issues half an hour later, the purported dispatch manager contacted Seneca. No one informed Maxfield at the time. Id.; Grandillo 30(b)(6) Dep. at 52:10-20 [#83-1]; see 49 U.S.C. § 13102(23) (noting “refrigeration, icing” as services related to transportation by carriers). Indeed, it is undisputed that Maxfield had no knowledge of who would be transporting the load of lobster, and Seneca’s representatives were the sole point of contact for the individuals who claimed to work for Rapid. Finally, Preferred Freezer contacted Seneca, rather than anyone at Maxfield, to confirm the release of the load. Maxfield Facts ¶ 18 [#83]; Grandillo 30(b)(6) Dep. at 81:7-82:21 [#83-1]. Grandillo then held Seneca out as the carrier to Preferred Freezer by acknowledging the driver and releasing the load. See 49 U.S.C. § 13102(23) (stating “interchange of passengers and property” as a transportation service performed by carriers).

Seneca handled the route, the packing, the coordination of travel and release of the lobster to another party without any involvement from Maxfield, rather than acting as the “go-between” to connect Maxfield and Rapid to complete the shipment. See Essex Ins. Co., 885 F.3d 1292, 1302; 49 U.S.C. § 13102(23) (stating “packing” as a transportation service by carriers). In this way, Seneca took on the role of the carrier in this specific transaction, by accepting responsibility for the lobster. See Essex Ins. Co., 885 F.3d 1292, 1302; Tryg Ins., 767 F. App’x 284, 288 (“In sum, if a party has accepted responsibility for transporting a shipment, it is a carrier.”). Therefore, summary judgment is warranted for Maxfield, as no jury could reasonably find Seneca did not act as a carrier during this specific transaction. Accordingly, Seneca’s Motion for Summary Judgment [#79] is DENIED as to Count 1 of the Amended Complaint [#18] and Maxfield’s Cross-Motion for Summary Judgment [#82] is ALLOWED as to liability for the claim under the Carmack Amendment, Count 1 of the Amended Complaint [#18]. There are insufficient facts in the record from which the court can determine the amount Seneca owes under the Carmack Amendment, however, so Maxfield’s Cross-Motion for Summary Judgment [#82] is DENIED as to damages.

The Carmack Amendment preempts all other claims against motor carriers. Adams Express Co. v. Croninger, 226 U.S. 491, 499 (1913); Rini, 104 F.3d 502, 504. Therefore, as Seneca is a carrier for the transaction at issue, Maxfield’s claims for negligence and breach of contract are preempted. Accordingly, Seneca’s Motion for Summary Judgment [#79] is ALLOWED as to the common law claims, Counts 2 and 3 of the Amended Complaint [#18], and Maxfield’s Cross-Motion for Summary Judgment [#82] is DENIED as to those claims.

V. Seneca’s Claims

A. Factual Background
*5 It is undisputed that Maxfield has not paid Seneca invoices from a December 5, 2016, shipment, prior to the theft, and a December 22, 2016, delivery, after the theft. Seneca Facts ¶ 15 [#81]; Maxfield Facts ¶ 15 [#83]; Seneca Facts, Invoices ## 1141, 1062, Ex. G [#81-7]. After the lost load, Maxfield and Seneca emailed regarding Maxfield’s obligation to pay for prior and future invoices, despite the loss. Seneca Facts ¶ 13 [#81]; Maxfield Facts ¶ 13 [#83]; Seneca Facts, Email Exchange Re: Money on the Books, Ex. H at 1 [#81-8]. In an email to Grandillo on December 20, 2016, Zhang wrote, “[t]his claim … will not affect the payment status of the other loads.” Zhang Aff., Email Exchange Re: Richs Pick, Ex. A at 13 [#84-1].

B. Analysis

a. Breach of Contract
Seneca alleges that Maxfield breached the Contract by not paying the December 5, 2016, and December 22, 2016, invoices. Maxfield does not dispute that it did not pay the invoices, but argues that it only agreed to pay those invoices under duress. Maxfield Mot. for Summ. J. at 14 [#82].

To succeed on its economic duress defense, Maxfield must prove the following: “(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party.” Int’l Underwater Contractors, Inc. v. New England Tel. & Tel. Co., 393 N.E.2d 968, 970 (Mass. App. Ct. 1979). A claim of economic duress must be supported “by evidence that the duress resulted from defendant’s wrongful and oppressive conduct and not by plaintiff’s necessities.” Id. Maxfield has made no showing that, even if Seneca is strictly liable for the loss of the lobster, that Seneca acted with “wrongful and oppressive conduct.” Therefore, Maxfield has not presented sufficient evidence to permit a finding of economic duress and has conceded that it did not pay the invoices in question. Accordingly, Seneca’s Motion for Summary Judgment [#79] is ALLOWED as to Count 1 of the Answer and Counterclaim [#57] and Maxfield’s Cross-Motion for Summary Judgment [#82] is DENIED as to Count 1 of the Answer and Counterclaim [#57].

b. Breach of the Covenant of Good Faith and Fair Dealing, Fraud, & M.G.L. c. 93A
Seneca also seeks additional damages, alleging breach of the covenant of good faith and fair dealing, fraud, and unfair and deceptive business practices under M.G.L. c. 93A. Each of these claims places the burden upon Seneca to prove that Maxfield acted intentionally, knowing it would not pay the invoices but representing it would pay in order to obtain Seneca’s services. See NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 34 (1st Cir. 1994) (breach of contract violates c. 93A where it is knowing, intended to secure “unbargained-for benefits to the detriment of [the other party],” and “has an extortionate quality”); Balles v. Babcock Power Inc., 70 N.E.3d 905, 913 (Mass. 2017) (claim for fraud requires proof that a party made a false representation of a matter of material fact with knowledge of its falsity for the purpose of inducing action); Weiler v. PortfolioScope, Inc., 12 N.E.3d 354, 362 (Mass. 2014) (implied breach of covenant of good faith and fair dealing requires plaintiff to prove lack of good faith). Seneca has introduced no evidence relevant to determining Maxfield’s intentions when representing it would pay for other shipments. Nothing in the record would permit a jury to find for Seneca on any of these claims. Accordingly, Seneca’s Motion for Summary Judgment [#79] is DENIED as to Counts 2, 3, and 5 of the Answer and Counterclaim [#57] and Maxfield’s Cross-Motion for Summary Judgment [#82] is ALLOWED as to those counts.3

C. Damages
*6 The unpaid invoices are for $3,935.00 and $4,410.00. Seneca Facts, Invoices ## 1141, 1062, Ex. G [#81-7]. Therefore, summary judgment is entered for Seneca in the amount of $8,345.00.

VI. Conclusion
For the foregoing reasons, Seneca’s Motion for Summary Judgment [#79] is ALLOWED as to the common law claims, Counts 2 and 3 of the Amended Complaint [#18], and the breach of contract claim, Count 1 of the Answer and Counterclaim [#57]; the motion is DENIED as to all other counts. Maxfield’s Cross-Motion for Summary Judgment [#82] is ALLOWED as to liability and DENIED as to damages for the claim under the Carmack Amendment, Count 1 of the Amended Complaint [#18]; ALLOWED as to the claims for breach of the implied covenant of good faith and fair dealing, fraud, and M.G.L. c. 93A, Counts 2 through 5 of the Answer and Counterclaim [#57]; and DENIED as to the breach of contract claim, Count 1 of the Answer and Counterclaim [#57]. Summary judgment is entered for Seneca in the amount of $8,345.00.

IT IS SO ORDERED.

All Citations
Slip Copy, 2019 WL 3816890

Footnotes

1
The following factual summary is undisputed. Some facts are reserved for later discussion.

2
Grandillo, an owner and manager of Seneca, testified under Fed. R. Civ. P. 30(b)(6) on Seneca’s behalf.

3
Seneca also brought a claim of negligent misrepresentation as Count 4 of the Answer and Counterclaim [#57] but did not address this claim in its briefing. To succeed on this claim, Seneca would need to show that Maxfield in the course of its business, supplied false information for the guidance of another upon which Seneca justifiably relied to its financial detriment, and that Maxfield failed to exercise reasonable care or competence in obtaining or communicating the information. Cole v. New England Mut. Life Ins. Co., 729 N.E.2d 319, 323 (Mass. App. Ct. 2000). Seneca has failed to put forward facts that would allow a reasonable jury to find that Maxfield failed to exercise reasonable care or competence in obtaining or communicating the information. Therefore, Maxfield’s Cross-Motion for Summary Judgment [#82] is ALLOWED as to Count 4 of the Answer and Counterclaim [#57].