2019 WL 5684258

United States District Court, E.D. Louisiana.
ELCENTRO COFFEY
v.
KNIGHT REFRIGERATED, LLC ET AL.
CIVIL ACTION NO: 19-3981
|
11/01/2019

JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE

SECTION: “H”(1)

ORDER AND REASONS
*1 Before the Court is Defendants’ Motion for Partial Summary Judgment (Doc. 18). For the following reasons, the Motion is GRANTED.

BACKGROUND
Plaintiff Elcentro Coffey alleges that he was injured in an automobile accident when Defendant David White merged into his lane of travel and crashed into the vehicle that Plaintiff was driving. Plaintiff alleges, and Defendants admit, that White was in the course and scope of his employment with Defendant Knight Refrigerated, LLC (“Knight”) at the time of the accident. Plaintiff claims that White was negligent in causing the accident and that Knight is vicariously liable for that negligence. He also alleges that Knight is independently liable for “allowing an incompetent and unqualified driver to operate its vehicle.”1

Defendants now move for summary judgment dismissing Plaintiff’s claim that Knight is independently liable for Plaintiff’s damages. Plaintiff opposes.

LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”2 A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”3

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.4 “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”5 Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.”6 “In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at trial.”7 “We do not…in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”8 Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”9

LAW AND ANALYSIS
*2 Defendants ask this Court to dismiss Plaintiff’s claim that Knight is independently liable for his damages because of its negligent hiring, training, supervision, or entrusting of White. Defendants argue that when an employer stipulates that the employee was in the course and scope of employment when he committed the alleged negligence, the plaintiff cannot simultaneously pursue vicarious liability and direct negligence claims against an employer.

Louisiana law applies to this diversity action.10 As Plaintiff points out, there is no binding precedent under Louisiana law controlling this issue.11 “If there is no ruling by the state’s highest court on the specific question, the Court must make an Erie guess as to how the state’s highest court would decide the issue.”12 Several federal courts in Louisiana have recently engaged in making an Erie guess on this issue and have sided with Defendant.13 Indeed, at least two sections of this Court have held that a plaintiff cannot bring claims against an employer for both vicarious liability and direct negligence when the employer has stipulated that the employee was in the course and scope of his employment at the time of the accident.14

In April of this year, Judge Sarah Vance dismissed direct negligence claims against an employer under an identical fact pattern.15 In Thomas v. Chambers, the plaintiff was injured in a car accident involving a tractor-trailer operated by Randall Chambers, an employee of God’s Way Trucking, LLC (“God’s Way”).16 Plaintiff brought claims against Chambers for his negligence and against God’s Way for vicarious liability and for its independent negligence for negligently hiring, training, supervising, and entrusting Chambers.17 The court held “that plaintiffs may not maintain both a direct negligence claim against God’s Way and a claim that God’s Way is vicariously liable for Chambers’s negligence, because God’s Way readily admits that it is vicariously liable for Chambers’s alleged negligence.”18 In so holding, the court made an Erie guess in reliance on the Louisiana Third Circuit Court of Appeal’s decision in Libersat v. J & K Trucking, Inc.19 In Libersat, the appellate court held that the district court did not err in failing to instruct the jury on the employer’s duty regarding hiring and training when it “equated respondeat superior to all possible theories of recovery.”20 The court explained that:
If Mr. Mitchell [the employee] breached a duty to the Appellants, then Patterson [his employer] is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the Appellants then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the Appellants.21
Judge Vance “reasoned that, if a jury charge on the employer’s standard of care is unnecessary under the scenario at issue, then summary judgment on direct negligence claims is also appropriate.”22

*3 As recently as June of this year, Judge Vance again adopted this reasoning to dismiss independent negligence claims against an employer in another case.23 Other divisions of this Court and others have done so as well.24 Plaintiff does not point this Court to any case reaching a contrary conclusion. Instead, Plaintiff opposes this Motion on other grounds.

First, Plaintiff argues that Defendants’ Motion is premature and that this Court should defer ruling to allow additional time for discovery. Federal Rule of Civil Procedure 56(d) allows a court to defer consideration of a motion or allow the nonmovant additional time for discovery if the nonmovant can demonstrate “(1) why the movant needs additional discovery; and (2) how the additional discovery will likely create a genuine issue of material fact.”25 The issue before the Court in this motion is a legal issue and further development of the facts would have no bearing on its outcome. Accordingly, this argument fails.

Plaintiff next argues that he should be permitted to proceed in his independent negligence claims against Knight because Louisiana law provides for comparative fault and requires that the degree of fault be allocated among all persons contributing to an injury. “This argument does not follow, because there is no need to allocate fault between the parties when plaintiff’s vicarious liability claims make” Knight entirely liable for White’s alleged negligence.26 Therefore, “[a]n allocation of fault under the principles of comparative negligence is not necessary under the facts of this case.”27

Finally, Plaintiff appeals to public policy considerations, such as deterrence of undesirable conduct, satisfaction of the community’s sense of justice, and predictability. This argument ignores the fact that Knight will be made to pay for Plaintiff’s damages regardless of whether it is found liable vicariously or directly. Further, “the Court finds that public policy considerations such as streamlining the litigation process and avoiding unnecessary confusion for the jury weigh in favor of granting summary judgment. . . . The Court finds that, on balance, a rule disallowing simultaneous vicarious and direct negligence claims serves the public good.”28

Accordingly, Plaintiff’s arguments are unavailing. Plaintiff has not provided this Court with any reason to reach a result that is different than other courts that have already considered this issue. “The facts of this case are directly analogous to Thomas [and the other cases cited herein], and the same principles necessitate summary judgment here.”29 Accordingly, Plaintiff’s claims for independent negligence against Knight are dismissed.

CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and Plaintiff’s claim for independent negligence against Knight Refrigerated, LLC is DISMISSED WITH PREJUDICE.
*4 New Orleans, Louisiana this 1st day of November, 2019.

JANE TRICHE MILAZZO

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2019 WL 5684258

Footnotes

1
Doc. 1-2, ¶8.

2
Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

4
Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

5
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

6
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

7
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (internal citations omitted).

8
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

9
Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

10
Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675,681 (5th Cir. 2011).

11
Wright v. Nat’l Interstate Ins. Co., No. CV 16-16214, 2017 WL 5157537, at *2 (E.D. La. Nov. 7, 2017).

12
Thomas v. Chambers, No. CV 18-4373, 2019 WL 1670745, at *6 (E.D. La. Apr. 17, 2019)

13
Id.; Wright, 2017 WL 5157537, at *2; Dennis v. Collins, No. CV 15-2410, 2016 WL 6637973, at *8 (W.D. La. Nov. 9, 2016).

14
See Thomas, 2019 WL 1670745 (Vance, J.); Wright, 2017 WL 5157537 (Fallon, J.).

15
Thomas, 2019 WL 1670745, at *1.

16
Id.

17
Id.

18
Id. at *7.

19
772 So. 2d 173 (La. App. 3 Cir. 2000).

20
Id. at 179.

21
Id.

22
Giles v. ACE Am. Ins. Co., No. CV 18-6090, 2019 WL 2617170, at *2 (E.D. La. June 26, 2019) (discussing Thomas, 772 So. 2d 173).

23
Id.

24
See Wright, 2017 WL 5157537, at *3; Dennis, 2016 WL 6637973, at *7; Franco v. Mabe Trucking Co., Inc., No. 17-871, 2018 WL 6072016, at *4 (W.D. La. Nov. 20, 2018); Vaughn v. Taylor, No. 18-1447, 2019 WL 171697, at *3 (W.D. La. Jan. 10, 2019); Wilcox v. Harco Int’l Ins., No. CV 16-187-SDD-EWD, 2017 WL 2772088, at *3 (M.D. La. June 26, 2017).

25
Weaver v. Harris, 486 F. App’x 503, 505 (5th Cir. 2012).

26
Giles, 2019 WL 2617170, at *3; see also Wilcox, 2017 WL 2772088, at *3.

27
Giles, 2019 WL 2617170, at *3.

28
Id.

29
Id. at *2.

2019 WL 5684213

United States District Court, D. Colorado.
JENNIFER TRUJILLO, Plaintiff,
v.
MAY TRUCKING, Defendant.
Civil Action No. 18-cv-00908-STV
|
11/01/2019

Scott T. Varholak, United States Magistrate Judge

ORDER

Magistrate Judge Scott T. Varholak
*1 This matter comes before the Court on Defendant May Trucking Company’s Motion to Dismiss Plaintiff Second and Third Claims for Relief [#46] (the “Motion”). The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [##43-45] This Court has carefully considered the Motion and related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Motion is GRANTED.

I. BACKGROUND1
On April 3, 2015, Jody Taylor was operating a 2014 Freightliner tractor trailer owned by Defendant May Trucking Company (“May Trucking”). [#5 at ¶¶ 6-7] At the time, Ms. Taylor was employed by May Trucking and working under her scope of employment with May Trucking. [Id. at ¶ 8] Ms. Taylor negligently merged onto Interstate 25 causing Wesley Conda, driver of a 1990 Chevrolet pick-up truck, to lose control of his vehicle and strike Plaintiff’s vehicle. [Id. at ¶ 10] That collision caused Plaintiff to lose control of her vehicle. [Id. at ¶ 11] Plaintiff’s vehicle was forced under the trailer of Ms. Taylor’s Freightliner and was dragged for several hundred feet. [Id.] As a result, Plaintiff suffered various injuries and damages. [Id. at ¶¶ 16-19]

On March 16, 2018, Plaintiff initiated this action in the Adams County District Court. [#5] The Complaint named May Trucking and Ms. Taylor as Defendants. [Id.] The Complaint brought three causes of action: (1) negligence against Ms. Taylor and vicarious liability against May Trucking, (2) negligent hiring, retaining, and/or supervision against May Trucking, and (3) negligent entrustment of chattel against May Trucking. [Id. at 3-6] On April 18, 2018, the matter was removed to this Court on the basis of diversity jurisdiction. [#1] Due to difficulties serving Ms. Taylor [##18, 27, 31, 34], Plaintiff dismissed Ms. Taylor as a defendant [##39, 41].

On April 25, 2018, May Trucking answered the Complaint. [#9] In its Answer, May Trucking admits that, at the time of the collision, Ms. Taylor was driving the Freightliner owned by May Trucking, that May Trucking employed Ms. Taylor, and that Ms. Taylor was acting within the scope of her employment. [See #5 at ¶¶ 7, 8; #9 at ¶¶ 7, 8] May Trucking further admits that “if the jury determines that [Ms.] Taylor was negligent, the principles of vicarious liability would apply.” [#9 at ¶ 28]

On June 12, 2019, May Trucking filed the instant Motion. [#46] May Trucking argues that because it has admitted vicarious liability for any negligence on the part of Ms. Taylor, Plaintiff’s second and third claims for relief, asserting negligent hiring and negligent entrustment, are duplicative and must be dismissed. [See generally id.] Plaintiff has responded to the Motion [#48], and May Trucking has filed a reply [#50].

II. STANDARD OF REVIEW
*2 Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” “A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6).”2Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). Accordingly, in deciding both motions, the court must “accept as true all well-pleaded factual allegations…and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’ ” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

III. ANALYSIS
May Trucking moves to dismiss Plaintiff’s negligent hiring claim (“Claim Two”) and negligent entrustment claim (“Claim Three”), pursuant to the rule articulated in McHaffie v. Bunch. 891 S.W.2d 822 (Mo. 1995). [#46] Under the McHaffie Rule, once an employer admits respondeat superior liability for a driver’s negligence, it is improper to allow a plaintiff to proceed against the employer on other theories of imputed liability. 891 S.W.2d at 826. May Trucking argues that because it has admitted respondeat superior liability here, Plaintiff should not be permitted to proceed on Claims Two and Three. [#46]

The Colorado Supreme Court adopted the McHaffie Rule in Ferrer v. Okbamicael. 390 P.3d 836 (Colo. 2017).3 The Ferrer Court provided several rationales for adopting the rule. First, the Ferrer Court explained that “where the employer has already conceded it is subject to respondeat superior liability for any negligence of its employee, direct negligence claims become superfluous.” Id. at 844. “Stated differently, both vicarious liability and direct negligence claims are tethered to the employee’s tortious acts” and, as a result, “[o]nce the principal has admitted its liability under a respondeat superior theory…the [direct] cause of action…is duplicative and unnecessary.” Id. at 845 (quotation omitted). Second, the Ferrer Court explained that allowing both the direct and respondeat superior causes of action to proceed to a jury could cause the jury to assess or apportion a principal’s liability twice. Id. Finally, the Ferrer Court expressed concern that allowing the direct negligence claim to proceed to a jury could be unfairly prejudicial to a defendant employee because evidence of the employer’s negligent hiring could lead to the admission of evidence about the employee’s past conduct. Id. The Ferrer Court explicitly used negligent hiring and negligent entrustment as examples of improper claims once the employer admits vicarious liability. Id. at 844, 845.

*3 The McHaffie Rule, as articulated by the Ferrer Court, applies to Plaintiff’s Second and Third claims. May Trucking has already admitted respondeat superior liability. [#9, ¶ 28] As a result, Claims Two and Three, which seek to establish direct liability against May Trucking, cannot stand. See Ferrer, 390 P.3d at 848-49.

Plaintiff makes two arguments against dismissal. First, Plaintiff argues that the Ferrer Court’s concern about the prejudice to the employee is inapplicable here given Ms. Taylor’s dismissal from the suit. [#48 at 2] But concern over prejudice to the employee was only one of three rationales given by the Ferrer Court for adopting the McHaffie Rule. 390 P.3d at 844-45. The other two rationales—avoiding duplicative claims and eliminating any danger of the jury awarding duplicative damages—still apply. And while Plaintiff argues that the danger of duplicative damages can be avoided with a clearly worded verdict form and jury instruction [#48 at 2], this Court, sitting in diversity, cannot substitute its judgment for the judgment of the Colorado Supreme Court. Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 875 (10th Cir. 2013); Haffner v. Stryker Corp., No. 14-cv-00186-RBJ, 2014 WL 4821107, at *2 (D. Colo. Sept. 29, 2014) (“Sitting in diversity, I am bound to apply the law I believe the Colorado Supreme Court would apply.”).

Second, Plaintiff argues that May Trucking is independently liable to Plaintiff due to its negligence in hiring Ms. Taylor despite many purported red flags in Ms. Taylor’s background. [#48 at 3-4] This argument, however, is simply an argument against the adoption of the McHaffie Rule. But because the Colorado Supreme Court adopted the McHaffie Rule in Ferrer, this Court cannot refuse to apply the rule here. Squires, 715 F.3d at 875; Haffner, 2014 WL 4821107, at *2.

Presumably, Plaintiff wishes to continue pursuing Claims Two and Three in an attempt to seek exemplary damages based upon May Trucking’s decision to employ Ms. Taylor. And, indeed, many courts have created a punitive damages exception to the McHaffie Rule. Ferrer, 390 P.3d at 847-48 (collecting cases); see also Frederick v. Swift Transp. Co., 616 F.3d 1074, 1081 (10th Cir. 2010) (“[C]ourts that have adopted [the McHaffie Rule] have also generally recognized an exception to the rule whereby a plaintiff may bring a claim based on negligent hiring or retention along with its claims under respondeat superior when the plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee.” (quotation omitted)). But the Ferrer Court explicitly rejected this exception. 390 P.3d at 848. And, once again, this Court cannot ignore the Colorado Supreme Court’s mandate. Squires, 715 F.3d at 875; Haffner, 2014 WL 4821107, at *2.

IV. CONCLUSION
For the foregoing reasons, Defendant May Trucking Company’s Motion to Dismiss Plaintiff Second and Third Claims for Relief [#46] is GRANTED and Claims Two and Three are DISMISSED.

DATED: November 1, 2019 BY THE COURT: s/Scott T. Varholak

United States Magistrate Judge
All Citations
Slip Copy, 2019 WL 5684213

Footnotes

1
The facts are drawn from the allegations in Plaintiff’s Complaint [#5], which must be taken as true when considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).

2
Though styled as a motion to dismiss pursuant to Rule 12(b)(6) [#46 at 1], the Motion, which relies on both the allegations in the Complaint and May Trucking’s answers, is more accurately characterized as a motion for judgment on the pleadings pursuant to Rule 12(c). See Fed. R. Civ. P. 12(c); Ferrer v. Okbamicael, 390 P.3d 836, 840 (Colo. 2017).

3
Colorado law applies in this diversity case. Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 872 (10th Cir. 2013).