2020 WL 4500589

Unpublished opinion. See KY ST RCP Rule 76.28(4) before citing.
NOT TO BE PUBLISHED
Court of Appeals of Kentucky.
George A. SPENCER, Appellant
v.
Travis A. ARNOLD and Central Transport, LLC, Appellees
NO. 2018-CA-000479-MR
|
JULY 24, 2020; 10:00 A.M.
APPEAL FROM JEFFERSON CIRCUIT COURT, HONORABLE A.C. MCKAY CHAUVIN, JUDGE, ACTION NO. 14-CI-003490
Attorneys and Law Firms
BRIEFS FOR APPELLANT: Aaron G. Whaley, Louisville, Kentucky, Kevin C. Burke, Jamie K. Neal, Louisville, Kentucky, Jay Vaughn, Ft. Wright, Kentucky.
BRIEF FOR APPELLEES: Daniel E. Murner, Elizabeth Winchell, Lexington, Kentucky.
BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES.

OPINION
ACREE, JUDGE:
*1 George Spencer brings this appeal following a jury verdict and judgment in favor of defendants in his Jefferson Circuit Court personal injury action. Spencer was injured when the vehicle he was driving collided with a tractor-trailer driven by Travis Arnold and owned by Central Transport, LLC. Finding no error, we affirm.

BACKGROUND
On March 2, 2012, Spencer left his work at Transit Authority of River City (TARC), traveling northbound on South 10th Street in his TARC work vehicle, a Ford Taurus. Central Transport driver Arnold was driving his employer’s tractor-trailer eastbound on West Broadway.

At the intersection, the front of Spencer’s vehicle struck the driver’s side of the forty-eight (48) foot-long trailer just in front of the trailer’s tandem wheels.1 The intersection was controlled by a traffic light. Spencer suffered a collapsed lung, fractured ribs, and various scrapes and contusions. His medical expenses totaled over $62,250. Spencer filed a negligence action against Arnold and Central Transport on July 1, 2014. The case was decided by a jury trial.

Both parties testified they entered the intersection under a green light, making this, in the words of defense counsel, a classic “he said/he said” case that hinged largely on the credibility of witnesses. The jury returned a 9-3 verdict in favor of Arnold and Central Transport and the circuit court entered a judgment accordingly. Spencer says the circuit court erred in four ways: (1) failing to strike a juror for cause; (2) refusing to allow Spencer to impeach Arnold using a drug test; (3) failing to include a jury instruction on Arnold’s higher duty; and (4) prohibiting evidence of Central Transport’s policies and driving standards references, including the Commercial Driver’s License (CDL) manual.

STANDARD OF REVIEW
We review decisions regarding juror strikes and evidentiary rulings for abuse of discretion. McDaniel v. Commonwealth, 341 S.W.3d 89, 92 (Ky. 2011). The test for abuse of discretion is whether the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

“Alleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review.” Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006) (citation omitted). When examining jury instructions for error, they must be read as a whole. Carmical v. Bullock, 251 S.W.3d 324, 328 (Ky. App. 2007).

ANALYSIS

Striking Juror 1967798
*2 Spencer argues the circuit court erred by not allowing him to strike Juror 1967798 for cause. Compelled to strike Juror 1967798 peremptorily, Spencer exhausted his peremptory strikes and had to allow the seating of another juror he otherwise would have stricken.

Two situations may constitute reasonable grounds to excuse a prospective juror for cause. First, a juror may be excused whenever he or she expresses or shows an inability or unwillingness to act with entire impartiality. Rankin v. Commonwealth, 327 S.W.3d 492, 496 (Ky. 2010). Second, a juror may be excused because of “the prospective juror’s relationship with some aspect of the litigation….” Id.

Spencer asserts Juror 1967798 made several troubling statements demonstrating her inability to be impartial, characterizing them as: (1) her concern that six years had elapsed between the accident and the trial (V.R. 2/19/18 11:52:40-11:53:47); (2) her “unwillingness” to find more than one person at fault because she believed one person is “guilty” and the other is “innocent” (V.R. 2/19/18 12:01:32-12:01:35); and (3) her views about pain and suffering, including her belief that a large pain and suffering award (such as one million dollars) would be difficult “because it takes [her] back to the time lapse.” (V.R. 2/19/18 12:23:40-12:25:25). We address each issue in turn.

We do not agree that Juror 1967798 disqualified herself by expressing her concern about the lapse of time. The Juror actually said, “When they said the time lapse, I, you know, I could make a fair decision and all, but I was just going like, 2012? … [inaudible]. (V.R. 2/19/18 11:53:00). Counsel asked whether the delay between the accident and the trial would impede her ability to make a fair decision. She said, “Even with the [delay] I could still be fair.” (V.R. 2/18/19 11:53:11-11:53:38). Simple inquisitiveness about the time lapse is not sufficient evidence of her partiality and it was not abuse of discretion to so hold.

Spencer also misconstrues the Juror’s views on apportionment of fault. When asked if she believed only one person could be at fault for an accident, the Juror raised her hand and stated, “I believe that one can be at fault.” Counsel then asked, “If the evidence supports it, can … if there’s two cars involved in the crash, can both [drivers] be at fault?” The Juror answered affirmatively, stating, “If the evidence supports it.” (V.R. 2/18/19 12:02:31-12:02:44). When Counsel asked if anyone had a further problem with the concept, she did not raise her hand. We consider this merely evidence that Juror 1967798 did not understand the concept of shared fault, but when explained to her, she agreed she would rely on the evidence to make her decision.

Spencer’s third concern relates to Juror 1967798’s comments regarding pain and suffering. Her initial comment was that “pain and suffering is something you can never put a price tag on.” (V.R. 2/18/19 12:23:56-12:24:05). Later, she declared, “I can be fair and impartial on pain and suffering.” (V.R. 2/18/19 12:24:50 – 12:24:55). The circuit court clarified her position further by asking about “pain and suffering” and her “reaction to that”; then, the court asked, “[D]oes that mean that, once you hear the proof, the number is in flex, right?” She responded, “Yeah, it’s still in the back of my mind but I can put all that aside to make a fair decision is what I’m trying to say.” (V.R. 2/18/19 12:25:20-12:25:41). She was asked moments later if her feelings on pain and suffering would keep her from viewing the parties as being on a level playing field. She unequivocally stated, “No.” As voir dire continued, Juror 1967798 did state the time lapse would affect her ability to award a million dollars for pain and suffering. (V.R. 2/18/19 12:36:56-12:37:10). However, because Spencer capped his pain and suffering claim at $250,000, the comment was irrelevant and harmless. (R. at 208). Nevertheless, the circuit court stepped in and asked the Juror, hypothetically, if she could award a million dollars, if that was what the case was worth. Juror 1967798 retracted her statement and said if she believed the case was worth a million dollars, she could award that amount. (V.R. 2/18/19 12:45:35-12:46:02).

*3 Given the circuit court’s broad discretion, we find no error here. The court did not abuse that discretion by declining to strike Juror 1967798 for cause.

Impeachment
Spencer believed Arnold lied in his deposition and sought to reveal that lie to the jury. On cross-examination during the defense case, Spencer’s counsel began asking Arnold questions about his employment at Central Transport. Although the deposition itself is not a part of the record on appeal, the trial video transcript shows Arnold confirming his September 22, 2015 deposition testimony beginning at page 10, line 22, as follows:
Q: When did you stop working for Central [Transport]?
A: Five months ago.
(V.R. 2/20/18 3:50:13-3:50:36). Arnold then agreed with Spencer’s counsel’s conclusion that this meant he stopped working for Central Transport in April 2015. (Id.). After pursuing a line of unrelated questioning, Spencer’s counsel asked for a sidebar and proffered to the circuit court the following:2
In Mr. Arnold’s deposition, I asked him point blank if he had ever taken a drug test and if he ever failed a drug test and he said no. In fact, three months prior to that he had been drug tested by Central Transport and failed that drug test. I concede to you that that’s not relevant [garbled] but the fact that he lied about it under oath is. And under [KRE 3] 608, I’m allowed to cross[-examine] him on that…. This whole case is about who’s telling the truth here. [KRE] 608(b), “specific instances of conduct.” I’ve got a good faith basis. I’ve got the report. I can show him the report.
Like the deposition, the report is not a part of the record on appeal. However, during the sidebar, counsel read parts of it, including that it showed a “verified result positive for … amphetamine, methamphetamine.” It is dated “June 8, 2015, three months before the deposition,” which also means it was dated two months after Arnold’s employment with Central Transport ended. Central Transport produced it in response to Spencer’s discovery request. Nothing was proffered to show Arnold was ever aware of the test results.

Assessing the proffer, the judge asked Spencer’s counsel, “How do you prove that up? You’ve got a report from whom that says what?” Spencer’s counsel responded, “Well, I’m going to, from that. But I’ve asked about it…. The Kentucky Manual on Evidence says that you can give him a document to refresh his recollection….” Spencer’s counsel stated the report is his good faith basis under KRE 608 to ask Arnold the question, but everyone agreed the document itself was inadmissible.

Attempting to bolster his argument, Spencer’s counsel said, “This [pointing to the report] coincides with the time he alleges he quit working for Central Transport. I believe he was terminated from Central Transport because that is a non-negotiable, terminatable offense in accordance with Central Transport’s regulations. And I believe he lied about why he quit, too.”

After expressing doubt that such an inquiry was permissible under KRE 608(b), the circuit court stated another concern, that if Arnold knew about the report and was asked whether he ever failed a drug test, he would be put in the untenable position of having to admit a crime or commit perjury. Said the court, “Well, the other issue is because it is a criminal behavior, he could take the Fifth Amendment and not answer your question.”

*4 After removing the jury from the courtroom, the circuit court explained the evidentiary dilemma to Arnold in lay terms and questioned him about his knowledge of his right to assert his Fifth Amendment privilege against self-incrimination. The court asked Arnold if he was willing to answer the question, “Have you ever failed a drug test?” Arnold expressed concern that if the jury heard him “plead the Fifth” it would prejudice his case. The court assured him he would not have to assert the privilege in the jury’s presence. With the jury still absent, Arnold chose not to answer the question; the circuit court responded, “I accept your assertion of your Fifth Amendment right,” and prohibited Spencer from pursuing this line of questioning.

The circuit court’s first instinct was correct. Spencer’s question is prohibited by KRE 608(b). The rule says:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.
KRE 608(b).

As Professor Lawson points out, KRE 608(b) is comprised of two rules within a rule. The “First Rule” is “a general proposition against introduction of specific acts to attack or support credibility of witnesses.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.25[4][b], at 364 (2019 ed.). Without this prohibition, “collateral issues will overwhelm decisive issues, waste court time, and confuse decision makers…. [T]he bad effects of admitting such evidence would simply outweigh its probative value.” Id. Spencer wanted to present evidence to prove the very kind of collateral issue the rule prohibits.

Spencer’s problem begins with the very question he wanted to ask – whether Arnold ever failed a drug test.4 No matter how that question is answered, it is not probative of Arnold’s credibility for telling the truth. See United States v. Sellers, 906 F.2d 597, 602 (11th Cir. 1990) (“[P]rior instances of drug use are not relevant to truthfulness for purposes of Fed. R. Evid. 608(b).”); United States v. Tanksley, 35 F.3d 567, at *3 (6th Cir. 1994) (same). To demonstrate Arnold’s deposition testimony was false would require additional questions; even more questions would be required to show Arnold knew his answer was false. The rule prohibits that. Miller v. Commonwealth, 585 S.W.3d 238, 243 (Ky. App. 2018) (KRE 608(b) “allows inquiry into a witness’s specific instances of past conduct for purposes of impeachment, not extrinsic evidence.”).

The “First Rule’s” limitation on this kind of extrinsic evidence “is essential to the part of KRE 608(b) that removes from the general prohibition specific acts that can be proved through cross-examination (the ‘second rule’).” Lawson, § 4.25[4][b], at 365. Hence, under the “Second Rule,” Spencer could make a limited inquiry of Arnold specifically regarding whether his deposition testimony was truthful; provided, of course, that in the circuit court’s discretion, Spencer had a good faith, factual basis for doing so.

*5 The circuit court appears to have accepted the drug test report as a factual basis for the inquiry, even though it was placed in Arnold’s Central Transport personnel file two months after he left Central Transport’s employ. We cannot say that was an abuse of discretion. However, that good faith, factual basis only allowed Spencer to make a limited inquiry of Arnold, phrasing the question similarly to the very example Professor Lawson gives: “KRE 608(b) permits a party to cross-examine witnesses about specific acts that are probative of character for truthfulness or untruthfulness (i.e., to ask on cross if a witness … lied under oath in another proceeding).” Lawson, § 4.25[4][b], at 365. The permissible question is whether Arnold lied during his deposition. Spencer never sought to ask that question. If we assume he had sought to ask that permissible question, the circuit court correctly noted that under KRE 608(b), no matter how Arnold answered, Spencer could have asked nothing further. Sneed v. Burress, 500 S.W.3d 791, 794 (Ky. 2016) (“ ‘[T]he cross-examiner is bound by the witness’s answer and is not authorized to contradict that answer by introduction of what the Rule calls “extrinsic evidence.” ’ ” (quoting Lawson § 4.25[4][c], at 319 (5th ed., 2013))). As the circuit court said when referencing KRE 608(b), “If he says, ‘No,’ you’re stuck with that.” (V.R. 2/20/18 4:08:58-4:09:03).

Spencer’s specific proposed questions were appropriately disallowed by the circuit court’s proper application of KRE 608(b). Discussion of Fifth Amendment rights outside the presence of the jury was superfluous, irrelevant, and harmless. Therefore, we decline to address whether it was proper for the circuit court to raise the issue. That takes us to Spencer’s next argument – improper jury instruction.

Jury Instructions
Circuit courts must instruct the jury on every theory reasonably supported by the evidence. McAlpin v. Davis Construction, Inc., 332 S.W.3d 741, 744 (Ky. App. 2011). An “erroneous instruction is presumed to be prejudicial.” McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky. 1997) (citation omitted). The question here is: did the evidence support an instruction on Arnold’s duty under a federal regulation, or would an instruction based on that regulation have been erroneous? We conclude the evidence did not support the proposed instruction. Furthermore, we conclude on these facts that the parties’ duties to one another were equal and reciprocal and giving an instruction imposing a higher duty on one driver would have been error.

Spencer argued the evidence reasonably supported a jury instruction that Arnold owed a higher duty to exercise extreme caution and should have reduced his speed. This duty, he says, derives from federal regulation of commercial vehicle drivers, incorporated by Kentucky law. Specifically, Spencer claims Arnold was required to “exercise extreme caution in the operation of a tractor trailer” under “hazardous conditions” including “mist, rain,” and that such conditions required that Arnold’s “speed shall be reduced when such conditions exist.” (Appellant’s brief, p. 6 (citing 49 C.F.R.5 § 392.14 and 601 KAR 6 1:005)). He claims failure to instruct the jury on the duty imposed upon Arnold by 49 C.F.R. § 392.14, part of the Federal Motor Carrier Safety Regulations, or FMCSR, was error. We disagree.

The regulation upon which Spencer based his claim to instruct the jury on Arnold’s higher duty of care says:
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.
49 C.F.R. § 392.14.

Focusing on the pertinent parts of the regulation, it says: “Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by … mist, [or] rain …, adversely affect visibility or traction.” Id. The rationale underlying this federal regulation is mirrored in Kentucky’s own statute governing speed. KRS 189.390(2) says that, notwithstanding a posted speed limit, “[a]n operator of a vehicle upon a highway shall not drive at a greater speed than is reasonable and prudent, having regard for the traffic and for the condition and use of the highway.” The obvious predicate when seeking to hold a driver to the duties under either of these laws is proof of driving conditions. At a minimum, Spencer needed to present evidence that visibility or traction was adversely affected by mist or rain when the accident occurred. Such evidence is lacking.

*6 Spencer does not cite this Court to any part of the record that describes weather or road conditions at the time of the accident. However, we have examined the record in search of such support. Spencer himself testified that he believed Arnold could not see his own red light because “the sun was in his eyes….” (V.R. 2/20/18 10:20:39-10:21:10). He shortly thereafter said it was a “stormy day, sun comes in and out.” (V.R. 2/20/18 10:37:01-10:37:13). Arnold testified only that it was a “gloomy day.” (V.R. 2/20/18 03:37:01-03:31:13). The photographs taken immediately after the accident show a damp roadway; however, there is no indication of standing water or puddles of any kind, no indication of rain on either Spencer’s vehicle or Arnold’s vehicle, no persons in the photos are using umbrellas or other protective weather gear such as raincoats or hats, and the wipers of passing vehicles are in the down position.7

In short, no evidence indicates any “hazardous conditions … adversely affect[ed] visibility or traction….” 49 C.F.R. § 392.14. That alone justifies rejecting Spencer’s proposed instruction.

Furthermore, Spencer labels this case a “he said/she said” case as to who ran a red light. The critical mutual duties here were to obey a traffic control device. The duties, each to the other, were equal and reciprocal. As said in Railway Express Agency, Inc. v. Bowles:
Where the circumstances of an automobile collision are such that the duties of the respective drivers are equal and reciprocal, it is prejudicial error to give instructions imposing upon the drivers unequal duties. Williams v. Coleman’s Adm’x, 273 Ky. 122, 115 S.W.2d 584 [ (1938) ]; Dixie Ohio Express Co. v. Vickery, 306 Ky. 171, 206 S.W.2d 821 [ (1947) ]. The circumstances in the instant case are substantially the same as those in the two cited cases, wherein the judgments were reversed because the instructions did not place the same duties on both drivers.
325 S.W.2d 337, 338 (Ky. 1959).

Railway Express and the two cases it cites addressed accidents involving one car and one truck, and in Dixie Ohio Express Co. v. Vickery, the truck was identified as a tractor-trailer. Although these cases predate the federal regulation, we conclude the regulation would have made no difference. The opinions in these cases share a common theme expressed in the earliest of them – that a party is unjustifiably prejudiced by disparate instructions defining his duty both under the common law and again by a refined statutory definition of the care that should be taken to satisfy that duty. The Court in Dixie Ohio assessed this argument as follows:
‘[A]lthough the duties of the drivers of the truck and car when meeting and attempting to pass each other on this occasion were reciprocal and the same, the instructions as given did not impose the same duties on both or so admeasure them, but unequally imposed upon the truck driver the observance of two duties, imposed respectively both by the statutes and the common law, whereas only the one duty of [exercising ordinary] care was imposed upon Coleman, the driver of the car.
‘Appellants contend, and we conceive properly, that by reason of such unwarranted difference and discrimination made in the two instructions, so specifically detailing and defining the duties of the defendants’ driver while not so defining like duties as imposed upon Coleman, the defendants were prejudiced and therefore entitled to a reversal.’
Dixie Ohio, 206 S.W.2d at 823 (quoting Williams, 115 S.W.2d at 588).

We conclude that if the circuit court had granted Spencer’s request for lop-sided duty instructions, it would have invited a strong argument for prejudicial error under Railway Express. Even without that argument, the instruction Spencer asked the circuit court to give was not supported by the evidence. The circuit court instructed the jury in accordance with Palmore’s Jury Instructions. We hold there was no error in the jury instructions.

Evidence of Requirements of CDL Manuals and the Like
*7 At the pretrial conference, Arnold moved to exclude reference to Central Transport’s manuals and policies, arguing Arnold should be held to the same legal duty as all motorists. Arnold and Central Transport argued that the issue was which driver entered the intersection in violation of a traffic control device; i.e., a lighted red traffic signal.

Not inconsistently with our discussion of the jury instruction, supra, the circuit court expressed a belief that reference to other standards alleged to be applicable to one driver but not applicable to both would confuse the jury and lead them to believe failure to comply with a manual is failure to comply with legal duties. However, the circuit court did not grant Arnold and Central Transport’s motion. The court’s written order held the issue in abeyance “in anticipation of content and context necessary to issue a ruling being developed at trial.” (R. at 342-43). Spencer never sought to introduce any evidence from the manual at trial.

The circuit court made a similar ruling, not expressly refusing evidence of the contents of the CDL manual and FMCSR, as the following exchange shows:
Court: There’s a way to do it that is perfectly acceptable if you can do it deftly. Essentially you are saying, and the way you do it is to tie it into one of those actual duties. But you cannot create a separate standard, you cannot create a separate set of duties, the jury is not going to be instructed about —
Counsel: Just for the record, we cannot reference the Kentucky CDL manual, is that accurate.
Court: I don’t know if you can or not, that’s not what I am saying. What I’m saying is that anything that you talk about has to be a violation of the applicable law. And the CDL manual alone is not the applicable law. It can be done. It just has to be done in a way that’s, um, not going to confuse the jury or run the risk of confusing the jury about what the actual standard is. So, I am not saying you can’t talk about it. I’m saying, I don’t know how to say it any differently, anything that you talk about in terms of the violation of the applicable standard of care is in the instruction. Those are the only duties that anybody has….
(V.R. 2/20/18 9:24:24-9:25:50).

The circuit court expressed a similar determination referring to the FMCSR. Said the court, “If it doesn’t translate into a direct violation of one of the actual duties that he has, it’s not going to be admitted.” (V.R. 2/20/18 9:19:56).

We can find no error here. After the circuit court declined to unequivocally grant Arnold and Central Transport’s motion to exclude the evidence, Spencer never tested the extent to which evidence of the various standards expressed in the documents might be allowed.

To the extent Spencer argues Central Transport’s manual, the CDL handbook, and FMCSR establish separate duties, we are unpersuaded. Industry standards or manuals can inform the standard of care that will satisfy a duty, but neither establishes the duty itself. See Carman v. Dunaway Timber Co., Inc., 949 S.W.2d 569, 571 (Ky. 1997) (Appellee permitted “to introduce evidence of custom within the industry to prove this standard of care [and] Appellant was permitted to introduce the KOSHA regulation as evidence to the contrary. The jury instructions accurately framed the issue of whether [Appellee] had complied with its common law duty.); Vick v. Methodist Evangelical Hosp., Inc., 408 S.W.2d 428, 429-30 (Ky. 1966) (“[E]ven though there was expert testimony that [defendants] acted in accordance with good and accepted standards … the jury could reject this evidence and find negligence….”).

*8 We hold there was no error in the circuit court’s treatment of Spencer’s efforts to introduce matters relating to Central Transport’s manual, the CDL manual, or the FMCSR.

CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court’s February 23, 2018 judgment upon a jury verdict dismissing the complaint.

ALL CONCUR.
All Citations
Not Reported in S.W. Rptr., 2020 WL 4500589

Footnotes

1
Initially, Spencer believed and alleged that Central Transport’s tractor struck his vehicle. (Record (R.) at 2). He gave deposition testimony more specifically stating that the front of Central Transport’s tractor struck the driver’s side front fender and door of the government vehicle he was driving. (Video Record (V.R.) 2/20/18 4:42:10-4:42:54). He corrected his testimony at trial, agreeing with the experts that the impact was between his vehicle and Central Transport’s trailer just in front of its tandem wheels. (V.R. 2/20/18 9:47:20-9:48:15).

2
The quotations that follow are excerpts from the sidebar. (V.R. 2/20/18 4:05:54-4:22:30).

3
Kentucky Rules of Evidence.

4
The circuit court expressly ruled, “You can’t say, ‘Hey, were you fired because you failed a drug test?’ ” (V.R. 2/20/18 4:20:30-4:20:34).

5
Code of Federal Regulations.

6
Kentucky Administrative Regulations.

7
Exhibits 3, 4, and 5, and Plaintiff’s Exhibits G (series of 7 photos) and I (series of 3 photos).

2020 WL 4590171

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. IT MAY BE SUBJECT TO A MOTION FOR REHEARING OR TRANSFER. IT MAY BE MODIFIED, SUPERSEDED OR WITHDRAWN.
Missouri Court of Appeals, Eastern District,
DIVISION TWO.
Lisa HEARN and Daniel Hearn, Appellants,
v.
ABF FREIGHT SYSTEM, INC., Respondent.
No. ED 108315
|
FILED: August 11, 2020
Appeal from the Circuit Court of the City of St. Louis, Honorable Annette Llewellyn, Judge
Attorneys and Law Firms
For Appellants: Brian M. Wendler, Angie M. Zinzilieta, 900 Hillsboro Ave., Ste. 10, Edwardsville, IL 63102.
For Respondent: John Kemppainen, Jr., Susan M. Herold, Debbie S. Champion, 500 N. Broadway, Ste. 1550, St. Louis, MO 63102.

KURT S. ODENWALD, Judge

Introduction
*1 Lisa and Daniel Hearn (“the Hearns”) appeal from the trial court’s judgment following a jury verdict in favor of ABF Freight System, Inc. (“ABF”) on the Hearns’ claims for negligence and loss of consortium arising out of a motor vehicle accident. In Point One, the Hearns allege the trial court erred in denying their motion for a directed verdict given ABF’s vicarious liability under the doctrine of logo-liability. In Point Two, the Hearns argue the trial court erred by instructing the jury that the Hearns had the burden of proving the agency relationship between ABF and the truck driver causing the accident because such instruction was inconsistent with the logo-liability doctrine. Because the logo-liability doctrine only applies to carrier-lessees and the record reveals no evidence that ABF operated as a carrier-lessee, the doctrine is inapplicable in this case, and the trial court correctly denied the motion for a directed verdict and correctly declined to instruct the jury on the logo-liability doctrine. Accordingly, we affirm the judgment of the trial court.

Factual and Procedural History
Lisa Hearn was seriously injured in a car accident after she was struck by a vehicle being driven by Paulette Anthony (“Anthony”). Both the Hearns and Anthony alleged that Anthony struck Lisa Hearn due to the negligent operation of a truck bearing ABF signage. Specifically, the truck was alleged to have crossed into Anthony’s lane, either striking Anthony or causing her to swerve to avoid the truck, at which time Anthony collided head-on with Lisa Hearn. Lisa Hearn claimed to have interacted with the truck driver following the accident. However, the truck driver left the scene before police arrived, and the truck and driver were never identified beyond the claim that the truck bore ABF signage.

Both the Hearns and Anthony sued ABF for negligence, and the cases were tried together. The evidence presented by the Hearns, Anthony, and ABF at trial predominantly concerned whether the truck was an ABF truck and whether the driver of the truck was an employee of ABF.

At the close of evidence, the Hearns moved for a directed verdict in their favor. Specifically, the Hearns asked the trial court to direct the jury to enter a verdict against ABF under the logo-liability doctrine if the jury found the truck in question bore ABF’s signage. The trial court treated the Hearns’ motion as a motion for summary judgment, or in the alternative, a motion for directed verdict. ABF countered that the logo-liability doctrine was inapplicable and that the traditional principles of agency and vicarious liability applied. In particular, ABF maintained that the logo-liability doctrine did not apply because ABF owned its trucks rather than leasing them and that the logo-liability doctrine applied only to carrier-lessee relationships. ABF also moved for a directed verdict, arguing that the Hearns had not submitted evidence to establish ABF’s vicarious liability for the actions of the truck driver. The trial court denied both motions and ruled that the issue of agency would be submitted to the jury.

*2 During the jury-instruction conference, the Hearns objected to Instructions No. 9, 11, and 15, each of which addressed the issue of agency. Specifically, Instruction No. 9 provided:
Operating the truck was within the “scope and course of employment” as that phrase is used in these instructions if:
1. it was performed by the driver to serve the business of [ABF], according to an express or implied agreement with [ABF], and
2. [ABF] either controlled or had the right to control the physical conduct of the driver.
Instruction No. 11 provided that the jury must find the driver was driving the truck “within the scope and course of employment by [ABF], at the time of the collision,” in order to find ABF liable for negligence against the Hearns. Instruction No. 15 mirrored Instruction No. 11 but concerned Anthony rather than the Hearns. The Hearns specifically objected to the interjection of a traditional agency analysis through these proposed jury instructions. The Hearns tendered alternative instructions based upon the logo-liability doctrine, instructing the jury that it need only find the truck bore ABF’s signage, was negligent, and caused damage to the Hearns in order to find in favor of the Hearns and against ABF. The trial court overruled the Hearns’ objections and rejected their proposed instructions, reasoning that logo-liability doctrine applied only to a carrier-lessee relationship, evidence of which was lacking in the present case.

The jury returned a verdict in favor of ABF and against the Hearns. On Anthony’s claim, the jury also returned a verdict for ABF, specifically finding that neither Anthony nor ABF were at fault. The Hearns now appeal.

Points on Appeal
In Point One, the Hearns contend that the trial court erred in denying their motion for a directed verdict on agency because consideration of traditional agency principles was precluded under the logo-liability doctrine. In Point Two, the Hearns allege that the trial court erred in instructing the jury that the Hearns had to prove the traditional requirements of agency because the less demanding doctrine of logo-liability applied.

Discussion

I. The History of the Logo-Liability Doctrine in Missouri Courts
Both parties offer the public policy doctrine of logo-liability as support for their positions on appeal. Generally, the doctrine of logo-liability provides a means of imposing vicarious liability over carriers for the negligence of truck drivers other than through established agency principles. See Parker v. Midwestern Distribution, Inc., 797 S.W.2d 721, 724 (Mo. App. E.D. 1990) (citing Johnson v. Pac. Intermountain Express Co., 662 S.W.2d 237, 240, 246 (Mo. banc 1983)). Because the parties’ arguments largely focus on the significance—or lack thereof—of factual distinctions between past cases addressing the applicability of logo-liability, we will first examine the precise facts and holdings at issue and articulate a clear framework for the application of the logo-liability doctrine under Missouri law.

The doctrine of logo liability was first addressed by the Supreme Court of Missouri in Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524 (Mo. 1968). Examining the history of carrier-lessee arrangements and related legislation, Brannaker noted that carrier-lessees would enter into leases with “often unreliable” independent contractors to haul cargo for single trips or short durations, allowing carrier-lessees to “evad[e] their public responsibilities.” Id. at 528–29. Some tractor-trailer truck owners would lease their trucks to common carriers who assumed control over transporting the goods being hauled. Under traditional agency principles, the common carrier was relieved of liability on return trips because the lessor had performed its one-way contract and was no longer engaged in business on behalf of the carrier. Duke v. Thomas, 343 S.W.2d 656, 659 (Mo. App. St. Louis 1961) (internal citation omitted).

*3 As a result of the increasing use of lease arrangements by common carriers, the United States Congress passed legislation authorizing the Interstate Commerce Commission (“the I.C.C.”) to enact regulations to assure that carrier-lessees “be fully responsible for the operation” of the motor vehicles they lease. Brannaker, 428 S.W.2d at 528 (citing 49 U.S.C. § 304(e)(2) (1964)). The I.C.C. subsequently passed regulations establishing such full responsibility, requiring vehicles bear the I.C.C. identification numbers of the carrier-lessee for whom they are hauling and that such identification be removed when the lease is terminated. Id. at 529 (citing 49 C.F.R. § 207.4 (1964)). As a result of the I.C.C. regulations, authorized carriers would remain liable for the negligence of those who operated and drove the tractor-trailers on our roads and highways.

Under the relevant facts in Brannaker, a tractor-trailer driver leased his tractor to the defendant carrier-lessee for two years. Id. at 527. The defendant then supplied the trailer for the driver to haul. Id. When a disagreement arose between the driver and defendant, the driver returned the trailer and stopped hauling on behalf of the defendant. Id. However, although the driver began hauling a trailer provided by someone other than the defendant, the name of the defendant’s company remained affixed to the driver’s tractor, as did the numbers of the relevant certificates and permits associated with the I.C.C. and Missouri Public Service Commission. Id. A motor vehicle accident occurred in which the driver of the tractor-trailer struck a vehicle, which then struck the plaintiff. Id. The injured plaintiff successfully brought suit and obtained a verdict against the defendant whose name remained affixed to the tractor. Id. On appeal, the defendant maintained the trial court should have granted its requested directed verdict because the plaintiff had not adduced substantial evidence that the driver of the tractor was acting within the scope of employment on behalf of the defendant at the time of the accident. Id. at 533.

Brannaker held that the trial court did not err in declining to enter a directed verdict because factual questions remained as to the lessee relationship at the time of the accident. Id. at 535–36. In particular, the lease arrangement made the defendant “liable for the negligence of the owner-driver of the leased equipment to the same extent it was responsible for the negligence of one of the lessee’s own drivers when operating the carrier’s own equipment.” Id. at 534 (internal citations omitted). Thus, the defendant would not be held vicariously liable for the tortious conduct of one of their drivers, absent a finding that the driver was acting in the scope of employment at the time of the accident. Id. (internal citations omitted). Because there was evidence from which the jury could have concluded either that the driver was or was not acting in the scope of his employment with the defendant, Brannaker ultimately concluded the issue of vicarious liability could not be decided as a matter of law and that the issue was appropriately submitted to the jury. Id. at 534–35.

The Court later addressed the issue of logo-liability in Johnson, 662 S.W.2d 237. In Johnson, the defendant appealed a jury verdict in favor of the deceased victim of a motor vehicle accident in which “[t]here [was] no claim, and no evidence, that the truck was on a mission for [the defendant carrier-lessee] at the time of the fatal accident.” Id. at 242. Because the evidence clearly showed that the truck was hauling regulated freight for an entity other than the defendant at the time of the accident, the plaintiff sought to establish liability solely through the logo-liability doctrine. Id. at 240, 242. The relevant issue on appeal was the propriety of the trial court’s instructions that the jury find the defendant liable if it determined both that the defendant had provided signs identifying the defendant to the driver for display on the driver’s truck and that the defendant had failed to remove the signs from the truck before the accident. Id. at 242.

*4 Relying on “statutory policy rather than a conventional respondeat superior theory[,]” Johnson broadly recognized that the logo-liability doctrine may establish liability “based on appearances, not actualities[,]” with the purpose of “increasing the likelihood that a substantial entity will be available to respond to any judgment rendered” in favor of a plaintiff. Id. at 243, 245, 246. Johnson explained that the “maximum effect” of the logo-liability doctrine as described in Brannaker “would be to make the [defendant] liable as [the] owner, and that the owner would not be responsible for the employee’s use of the vehicle in a purely personal mission.” Id. at 243 (citing Brannaker, 428 S.W.2d 524). It is noteworthy to any discussion of the logo-liability doctrine to acknowledge the material factual differences between Johnson and Brannaker. Unlike the posture of Brannaker, there was no factual dispute in Johnson that the truck involved in the accident was hauling regulated freight at the time of the accident as opposed to being on a mission personal to the driver. Id. Johnson explained that:
Brannaker does support the proposition that the mere presence on a vehicle of a placard furnished by a carrier is not conclusive of the carrier’s vicarious liability, but it involves two factual possibilities not here present, as follows: (1) the carrier may have made reasonable efforts to terminate the lease and to reclaim its identifying signs; or (2) the vehicle may have been used on a mission personal to the driver, not involving the hauling of freight for the benefit of the lessee carrier or anyone else, at the time of the accident.
Id. at 244 (emphasis added). Johnson concluded the following as to the parameters of the logo-liability doctrine:
[The defendant] may be held liable for the truck driver’s negligence, without regard to the continuing force of the lease, if the jury finds: (1) that a sign or identifying legend was furnished by the carrier in connection with a lease; (2) that the sign was on the truck at the time of the accident; and (3) that the truck was hauling regulated freight at the time of the accident.
Id. at 245. While the contested jury instructions did not specify the third element, Johnson determined the jury necessarily believed the third element was met based on its other findings and found no error in the instructions. Id.

This Court revisited the logo-liability doctrine in Parker, 797 S.W.2d 721. Parker broadened the application of the logo-liability doctrine by interpreting Johnson to have abrogated a critical requirement announced in Brannaker—the requirement of proving that the driver of the truck was acting within the scope of their employment with the defendant. Id. at 723. Parker explained this evolution of the logo-liability doctrine noting that Johnson emphasized the nature of constructive agency and the importance of appearances over actualities. Id. at 724 (citing Johnson, 662 S.W.2d at 240, 246). Specifically, Parker focused on the language in Johnson that “the mere presence on a vehicle of a placard furnished by a carrier is not conclusive of the carrier’s vicarious liability[.]” Id. (quoting Johnson, 662 S.W.2d at 244). Parker reasoned therefrom that the display of a carrier-lessee’s logo created a presumption of the carrier’s vicarious liability which a defendant could overcome by presenting “evidence that the carrier attempted unsuccessfully to destroy the appearance of a relationship” or “evidence that the driver was engaged in an enterprise unrelated to the apparent relationship purpose, i.e. the hauling of freight.” Id. at 723 (citing Johnson, 662 S.W.2d at 244). Parker’s reasoning would allow the presumption to be rebutted by evidence that the driver was not authorized to operate the vehicle at all. Id. at 723–24. Accordingly, Parker rejected the defendant’s contention on appeal that the plaintiff failed to make a submissible case because the plaintiff did not establish that the driver was an agent of the defendant.1 Id. at 722, 724.

*5 Missouri courts next considered the issue of logo-liability in Robertson v. Cameron Mut. Ins. Co., 855 S.W.2d 442 (Mo. App. W.D. 1993). More closely aligned with the facts in this appeal, the plaintiff in Robertson argued on appeal that the jury should have been instructed that vicarious liability over the defendant was established by a simple finding that the truck bore defendant’s placard—nothing more. Id. at 449. Rejecting this argument, the Western District reaffirmed plaintiffs’ burden of proving each of the three elements enumerated in Johnson in order to impose vicarious liability on a defendant under the logo-liability doctrine. Id. at 450 (citing Parker, 797 S.W.2d at 724).

Our courts most recently addressed the issue of logo-liability in Horner v. FedEx Ground Package Sys. Inc., 258 S.W.3d 532 (Mo. App. W.D. 2008). In Horner, the truck involved in the accident bore the defendant carrier-lessee’s logo, the defendant’s Department of Transportation registration number, and was under an exclusive lease-agreement to provide trucking services to the defendant. Id. at 534. The trial court ruled that an irrebuttable presumption of vicarious liability was established when a certified carrier’s placards are on a truck at the time of the accident and that evidence showing the presence of the placards on the truck at issue required that the defendant be held vicariously liable for any negligence of the truck driver as a matter of law. Id. at 535, 537. The jury subsequently found in favor of the plaintiff. Id. at 534. On appeal, the defendant argued that the trial court erred in holding the defendant was vicariously liable as a matter of law. Id. The defendant countered that the logo-liability doctrine, even where applicable, creates only a rebuttable presumption of vicarious liability. Id. at 537. Although declining to answer whether the presumption raised by the logo-liability doctrine is rebuttable or irrebuttable, the Western District explained that “Johnson suggests that the presumption of vicarious liability can be rebutted, but only (1) where the [I.C.C.] carrier-lessee has attempted to end the lease and reclaim its placards, or (2) where the driver has embarked upon a personal mission.” Id. at 539 (emphasis added) (citing Parker, 797 S.W.2d at 723–24). The Western District held that the undisputed material facts of the case clearly showed the driver had acted in the course and scope of his employment for the defendant on the defendant’s behalf. Accordingly, the Court held that the defendant was liable under the logo-liability doctrine, regardless of whether the logo-liability presumption is rebuttable or irrebuttable. Id.

II. The Framework for the Logo-Liability Doctrine
Our examination of the development of the logo-liability doctrine in Missouri reveals the following framework for imposing vicarious liability upon a defendant under the doctrine.

First, Johnson clearly identifies three elements required to apply logo-liability: “(1) that a sign or identifying legend was furnished by the carrier in connection with a lease; (2) that the sign was on the truck at the time of the accident; and (3) that the truck was hauling regulated freight at the time of the accident.” Johnson, 662 S.W.2d at 245. Johnson further clarifies that, regarding the first element, it is not a requirement that the lease be in continuing effect. Id. at 245–46.

Second, Parker explicitly holds that the logo-liability doctrine creates a rebuttable presumption in favor of imposing vicarious liability on the defendant once the elements of logo-liability are established. Parker, 797 S.W.2d at 723. This holding has not been overruled. Indeed, Horner declined to consider whether the presumption raised by the logo-liability doctrine is rebuttable or irrebuttable. Horner, 258 S.W.3d at 539. Relying on Parker, the Horner court opined only that Johnson seemed to create such a rebuttable presumption. Id. (citing Parker, 797 S.W.2d at 723–24).

*6 Third, consistent with the above, the presumption of vicarious liability may be rebutted by the defendant upon a showing of facts that either 1) the carrier-lessee attempted to end the lease and reclaim its signage; or 2) that the driver was engaged on a personal mission not concerning the hauling of regulated freight when the accident occurred. Horner, 258 S.W.3d at 539 (citing Parker, 797 S.W.2d at 723–24). Additional grounds may also exist that would serve to rebut the presumption, such as evidence that the driver was not authorized to operate the vehicle at all. See Johnson, 662 S.W.2d at 243; Parker, 797 S.W.2d at 723–24.

Importantly, the preceding framework diverges from the principles of traditional respondeat superior vicarious liability in two critical respects. First, under the logo-liability doctrine, the defendant has the burden of rebutting the imposition of vicarious liability by showing that the driver was on a personal mission, as opposed to the plaintiff’s burden of proving that the driver’s tortious conduct was within the course and scope of the driver’s employment. Compare Horner, 258 S.W.3d at 539 (internal citation omitted), with Ewing-Cage v. Quality Prods., Inc., 18 S.W.3d 147, 150 (Mo. App. W.D. 2000) (internal citations omitted). Second, vicarious liability under the logo-liability doctrine may be established even when a truck is hauling regulated freight for an entity other than the carrier-lessee defendant, as opposed to when the truck is being driven only in furtherance of the interests of the defendant. Compare Johnson, 662 S.W.2d at 242, 245, with Ewing-Cage, 18 S.W.3d at 150. These two differences broaden the application of vicarious liability from the traditional principles of agency, thereby reinforcing the acknowledged public policy of the logo-liability doctrine to “increas[e] the likelihood that a substantial entity will be available to respond to any judgment rendered” and to ensure that carrier-lessees be responsible for the conduct of the independent contractors with which they choose to contract. Johnson, 662 S.W.2d at 243; see also Brannaker, 428 S.W.2d at 528–29 (internal citations omitted).

Having established a framework for the application of the logo-liability doctrine that reconciles precedential authorities and is consistent with the underlying purposes of the doctrine, we now apply this legal framework to the present case.

III. Analysis of the Present Case
We opt to review the Hearns’ second point on appeal first. Point Two focuses on the jury instructions, specifically alleging that the trial court erred in instructing the jury that the Hearns had the burden of proving the traditional principles of agency required to impose vicarious liability on ABF. The Hearns posit that the jury instructions should have reflected the logo-liability doctrine, tasking the jury only with finding whether the truck bore ABF’s signage, whether the truck driver was negligent, and whether the truck driver’s negligence damaged the Hearns.

We review whether a jury was properly instructed de novo. Edgerton v. Morrison, 280 S.W.3d 62, 65 (Mo. banc 2009) (internal citation omitted). We will only reverse due to instructional error if the party alleging error on appeal establishes that the instructions at issue misdirected, misled, or confused the jury. Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 459 (Mo. banc 2006) (internal citation omitted). The party alleging the error also bears the burden of proving they were prejudiced by the contested instructions. SKMDV Holdings, Inc. v. Green Jacobson, P.C., 494 S.W.3d 537, 559 (Mo. App. E.D. 2016) (citing Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 90–91 (Mo. banc 2010)).

*7 Instruction No. 11 placed the burden upon the Hearns to show that “the driver was operating [ABF]’s motor vehicle within the scope and course of employment by [ABF] at the time of the collision[.]” Conversely, a jury instruction applying the logo-liability doctrine would not require the Hearns to make such a showing, but instead would place the burden on ABF to rebut the presumption of liability by proving the truck driver was on a personal mission not concerning the hauling of regulated freight. See Johnson, 662 S.W.2d at 245; Horner, 258 S.W.3d at 539 (citing Parker, 797 S.W.2d at 723–24). We agree that, if the logo-liability doctrine applied in the case at hand, the jury was wrongly instructed on the burden of proof concerning agency, as the Hearns now argue. See Johnson, 662 S.W.2d at 245; Horner, 258 S.W.3d at 539 (internal citation omitted). However, the Hearns have failed to meet their burden on appeal of establishing the jury was erroneously instructed because we are not persuaded that the logo-liability doctrine applies given the undisputed facts of the present case. See Dhyne, 188 S.W.3d at 459 (internal citation omitted).

“An issue submitted by an instruction must be supported by the evidence.” Edgerton, 280 S.W.3d at 65 (internal citation omitted). In considering whether there was sufficient evidence to support the giving of an instruction, “[we view] the evidence in the light most favorable to its submission.” Spence v. BNSF Ry. Co., 547 S.W.3d 769, 777 (Mo. banc 2018) (internal quotation omitted).

Here, the Hearns objected to the trial court’s agency instructions and instead submitted instructions for vicarious liability under the logo-liability doctrine in which the jury had to find only that the truck bore ABF’s signage, was negligent, and damaged the Hearns. The trial court rejected the proffered instruction in favor of instructing the jury on the traditional principles of agency. Critically, the record lacks evidence supporting the submission of jury instructions premised upon the logo-liability doctrine. See id.; Edgerton, 280 S.W.3d at 65. Specifically, the first element required to establish liability under the logo-liability doctrine is “that a sign or identifying legend was furnished by the carrier in connection with a lease[.]” Johnson, 662 S.W.2d at 245 (emphasis added). Here, even viewing the evidence in the light most favorable to the giving of the Hearns’ requested instructions, the record on appeal is void of any evidence that ABF ever operated as a carrier-lessee. See Spence, 547 S.W.3d at 777. To the contrary, the testimony at trial uniformly concerned ABF employees, consistent with ABF’s statements during motion arguments that all of its truck drivers are employees. Accordingly, the trial court would have committed error had it instructed the jury consistent with the logo-liability doctrine because the record lacks any evidence to support the first required element that ABF signage was furnished in connection with a lease. See Johnson, 662 S.W.2d at 245; Edgerton, 280 S.W.3d at 65.

Despite established precedent consistently repeating the “in-connection-with-a-lease requirement,” the Hearns nevertheless argue that the logo-liability doctrine is not limited to carrier-lessee arrangements. The Hearns’ argument is unavailing and they fail to cite to a single case in which a Missouri court applied the logo-liability doctrine in the absence of a carrier-lessee relationship. The Hearns reason that the application of the logo-liability doctrine by Missouri courts in previous cases involving runaway trucks that could not be identified supports instructing the jury on the logo-liability doctrine even absent evidence of a carrier-lessee relationship. However, the facts of those cases do not support the Hearns’ invitation for us to extend the application of the logo-liability doctrine. In Johnson, contrary to the Hearns’ assertion, the specific truck involved in the accident was identified.2 Johnson, 662 S.W.2d at 238. In Robertson, the jury found in favor of the defendant only after being instructed that they had to find the defendant’s signage was furnished to the unidentified truck in connection with a lease, instructions which were affirmed on appeal. Robertson, 855 S.W.2d at 444, 449–50. Finally, in Parker, although the specific truck was never identified, evidence was introduced that the truck in question bore the defendant’s signage and that the defendant was a carrier-lessee. Parker, 797 S.W.2d at 722. Ultimately, none of the cases proffered by the Hearns support a holding that the logo-liability doctrine applies even in cases where, as here, the record lacks evidence that the defendant is a carrier-lessee.

*8 Additionally, the Hearns contend that applying the logo-liability doctrine to cases only involving carrier-lessee cases runs contrary to the logic of the development of the doctrine. We disagree. History is clear that the logo-liability doctrine developed from a fundamental concern regarding the relationship between carrier-lessees and independent contractors, not concerns about employers and their truck-driver employees. See Brannaker, 428 S.W.2d at 528–29. The doctrine of logo-liability developed as large trucking interests used the carrier-lessee relationship to escape the imposition of vicarious liability under traditional principles of agency. See Duke, 343 S.W.2d at 658–59. Without question, the public policy supporting the creation of the logo-liability doctrine stemmed from a concern over a very specific issue that had arisen—and not to supplant the general rules of vicarious liability as developed under common law. See Brannaker, 428 S.W.2d at 528–29. The Hearns’ contention fundamentally undermines the very foundation of the logo-liability doctrine. See id. Furthermore, the policy concerns about plaintiffs having a substantial entity from which they can recover are not implicated when the truck driver involved in an accident is the long-term employee of the trucking company as opposed to an independent contractor not tied to a given carrier-lessee on an ongoing basis. See Johnson, 662 S.W.2d at 243.

Because the Hearns adduced no evidence that ABF operated as a carrier-lessee, they failed to present the requisite facts allowing the jury to be instructed on imposing vicarious liability on ABF under the logo-liability doctrine. See Johnson, 662 S.W.2d at 245; Edgerton, 280 S.W.3d at 65. Accordingly, the trial court did not err when it refused Hearns’ proffered vicarious liability instructions and instead submitted vicarious liability instructions to the jury based upon the traditional principles of agency law. See Edgerton, 280 S.W.3d at 65. Point Two is denied.

In Point One, the Hearns contend that the trial court erred in denying their motion for a directed verdict because the logo-liability doctrine required the jury enter a verdict in favor of the Hearns if the jury found the truck bore ABF’s signage. We review denials of directed verdicts de novo when the denial is based on a matter of law.3 Bailey v. Hawthorn Bank, 382 S.W.3d 84, 92 (Mo. App. W.D. 2012) (internal citation omitted). Point One must also fail because it is premised upon the applicability of the logo-liability doctrine, which we have already rejected due to the in-connection-with-a-lease requirement. See Johnson, 662 S.W.2d at 245. Accordingly, the trial court did not err in denying the motion for a directed verdict. See Bailey, 382 S.W.3d at 92 (internal citation omitted). Point One is denied.

Conclusion
The judgment of the trial court is affirmed.

Philip M. Hess, P.J., concurs.
Lisa P. Page, J., concurs.
All Citations
— S.W.3d —-, 2020 WL 4590171

Footnotes

1
We reversed the award of punitive damages on other grounds. Parker, 797 S.W.2d at 725.

2
The Hearns cite Horner for the proposition that the truck in Johnson was unidentified. Horner, 258 S.W.3d at 541 n.15 (internal citations omitted). From context, it is clear to us that Horner was referring to the unidentified truck in Parker. See id. (citing Parker, 797 S.W.2d at 724) (erroneously stating the truck in Johnson was unidentified immediately after citing Parker).

3
Given that this point on appeal might be more properly understood as an allegation that the jury was improperly instructed, we note again that such claims are subject to de novo review. Edgerton, 280 S.W.3d at 65 (internal citation omitted). Similarly, we note that the trial court alternatively treated the Hearns’ motion as a motion for summary judgment, which we also review de novo. Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718, 720 (Mo. banc 2008) (internal citation omitted).