2020 WL 4732187

United States District Court, N.D. Georgia, Atlanta Division.
Chivonto FERGUSON, Plaintiff,
v.
Yevgeny V. GARKUSHA, et al., Defendants.
Case No. 1:18-cv-03440
|
Signed 08/14/2020
Attorneys and Law Firms
Bethany Schneider, Schneider Law, P.C., Atlanta, GA, Richard Daryll Hobbs, Richard D. Hobbs and Associates, Fayetteville, GA, Steven Nicholas Newton, Steven N. Newton, LLC, Peachtree City, GA, for Plaintiff.
Dennis Gary Lovell, Jr., Carlock Copeland & Stair, LLP, Stephen James Cohen, Copeland, Stair, Kingma & Lovell, LLP, Atlanta, GA, for Defendant Yevgeny V. Garkusha.
Dennis Gary Lovell, Jr., Stephen James Cohen, Copeland, Stair, Kingma & Lovell, LLP, Atlanta, GA, for Defendant Quality Logistics, Inc.
Dennis Gary Lovell, Jr., Stephen James Cohen, Copeland, Stair, Kingma & Lovell, LLP, Atlanta, GA, for Defendant Lancer Insurance Company.

OPINION & ORDER
Michael L. Brown, United States District Judge
*1 Defendants Yevgeny V. Garkusha and Quality Logistics, Inc. seek summary judgment on Plaintiff Chivonto Ferguson’s claim for punitive damages in this car crash negligence action. (Dkt. 78.) The Court grants in part and denies in part that motion.

I. Factual Background
This case stems from a June 27, 2016, motor vehicle accident between Plaintiff and Defendant Garkusha while Garkusha was driving for Defendant Quality Logistics. (Dkts. 78-1 ¶ 1; 80-1 ¶ 1; 80-2 ¶ 1.) The undisputed evidence shows that, before entering the intersection where the accident occurred, Garkusha took his eyes off the road and turned his attention either to his GPS device or to one of his mirrors. (Dkts. 78-1 ¶ 2; 80-1 ¶ 2.)1 When he looked back at the road, he saw the traffic light for the intersection had turned red. (Dkts. 78-1 ¶ 3; 80-1 ¶ 3.) He proceeded into the intersection and collided with Plaintiff’s car, the right front of his tractor striking Plaintiff’s vehicle on the driver’s door. (Dkts. 78-1 ¶ 4; 80-1 ¶ 4.) The responding police officer did not test Garkusha for driving under the influence and no party suggests he was intoxicated. (Dkts. 78-1 ¶ 6; 80-1 ¶ 6.) The officer did, however, cite Garkusha for the accident. (Dkt. 80-2 ¶ 2.) Plaintiff sued Defendant Garkusha and his employer Quality Logistics in Georgia state court, alleging negligence and negligence per se, imputed liability,2 and punitive damages. (Dkt. 1-1.) Defendants removed the case to this Court. (Dkt. 1.)

The parties agree that, at the time of the crash, Garkusha acted in the course and scope of his employment as a commercial truck driver with Quality Logistics. (Dkts. 78-1 ¶ 21; 80-1 ¶ 21.) Defendant Garkusha first obtained a commercial driver’s license (“CDL”) from the state of Oregon in May 2015. (Dkts. 78-1 ¶ 25; 80-2 ¶ 21; 82 ¶ 21.)3 He transferred his CDL to Washington five months later. (Id.) His Washington CDL had an issue date of October 24, 2015 — the day before he applied for employment with Quality Logistics. (Dkts. 78-1 ¶ 11, ¶ 26; 80-1 ¶ 10; 80-2 ¶ 22; 82 ¶ 22.)

*2 As part of the hiring process, Quality Logistics reviewed only his Washington driving record. (Dkts. 78-1 ¶ 13; 80-1 ¶ 13.) Quality Logistics employee Vitaliy Kolesnik obtained Garkusha’s driving record from the state of Washington as required by federal statute. (Dkts. 78-1 ¶ 8; 80-1 ¶ 8.)4 No violations or convictions appeared on the report. (Dkts. 78-1 ¶ 9; 80-1 ¶ 9.) Plaintiff does not dispute Quality Logistics’ assertion that it reviewed Garkusha’s Washington driving record. But, at the same time, he alleges the Washington report was incomplete and omitted serious violations. (Dkt. 80-1 ¶¶ 8–9.) As discussed below, the evidence suggests Quality Logistics reviewed only his commercial driving record in Washington, which only went back two days. It did not review his complete Washington record or his Oregon record.

Quality Logistics hired Garkusha in early November 2015. (Dkts. 78-1 ¶ 7; 80-1 ¶ 7.) Vitaliy Kolesnik rode with and supervised Garkusha for three weeks afterwards, driving with Garkusha from Washington to Florida before allowing Garkusha to drive by himself. (Dkt. 78-1 ¶ 22.)5 During the trip, Kolesnik found Garkusha to be a safe driver and never saw him violate any Federal Motor Carrier Safety regulation or state law. (Id. ¶ 23.) While working for Quality Logistics before the collision with Plaintiff, however, Garkusha received a warning in Illinois for following too closely. (Dkts. 78-1 ¶ 16; 80-2 ¶ 23.)

During discovery, the parties learned that Garkusha had several driving infractions in the three years before his employment with Quality Logistics. In December 2012, Garkusha was involved in a collision in which he injured two pedestrians in a crosswalk in Vancouver, Washington when he failed to yield. (Dkts. 78-1 ¶ 15; 80-2 ¶ 15.) In March 2013, he was ticketed in Oregon for driving 81 miles per hour in a 55-mph zone. (Dkts. 78-1 ¶ 14; 80-2 ¶¶ 17–18; 80-5 at 13.) About a month later, police cited him in Washington for driving 83 miles per hour in a 60-mph zone. (Dkts. 80-5 at 13; 80-9 at 2.)

Garkusha had even more problems before that. Police arrested him three times for driving under the influence of alcohol, once in October 2006 and twice in March 2009. (Dkts. 78-1 ¶¶ 17–19, ¶ 24; 80-2 ¶¶ 6–7.) The charges were dismissed upon completion of a deferred prosecution agreement. (Dkt. 78-1 ¶ 20.) His driving privileges, however, were suspended for various amounts of time because of the DUIs, along with the imposition of a mandatory ignition interlock device on his personal vehicle imposed by both Oregon and Washington. (Dkt. 80-2 ¶¶ 9–12.)

At the close of discovery, Defendants moved for partial summary judgment on Plaintiff’s claim for punitive damages. (Dkt. 78.)

II. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it is “a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

*3 The party moving for summary judgment bears the initial burden of showing a court, by reference to materials in the record, that there is no genuine dispute as to any material fact that a jury should decide at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A moving party meets this burden merely by “ ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. The movant, however, need not negate the other party’s claim. Id. at 323. In determining whether the moving party has met this burden, a court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996).

Once the movant has adequately supported its motion, the nonmoving party then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, there is no “genuine [dispute] for trial” when the record as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. But “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48. The court, however, resolves all reasonable doubts in favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

III. Discussion
The parties agree Defendant Garkusha had multiple, serious infractions on his driving record before the 2016 accident. Or as Defendant Quality Logistics puts it: “[a]t one time, Garkusha’s driving history was not the most exemplary.” (Dkt. 78-2 at 11.) Defendant Quality Logistics nevertheless says it is entitled to summary judgment on Plaintiff’s claim for punitive damages because Plaintiff failed to present a genuine issue of material fact suggesting it was more than negligent or grossly negligent in hiring and supervising Garkusha. Similarly, Defendant Garkusha says he is entitled to summary judgment because Plaintiff has presented no evidence suggesting his conduct met the requisite culpability for punitive damages. (Dkt. 78-2 at 3.) Plaintiff counters that Quality Logistics’ “intentional violations” of its own internal policies and federal regulations “regarding driver qualification, hiring, entrustment, and supervision, at a minimum, creates a jury question on the issue of punitive damages.” (Dkt. 80 at 1–2.) The Court agrees with Plaintiff in part: a jury question exists here as to punitive damages against Quality Logistics but not as to those damages against Garkusha.

A. Punitive Damages
Punitive damages are exemplary damages, not intended to compensate a plaintiff but awarded “solely to punish, penalize, or deter a defendant.” Lyman v. Cellchem Int’l, Inc., 795 S.E.2d 255, 256 (Ga. 2017). Thus, Georgia law provides:
Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.
Ga. Code Ann. § 51–12–5.1(b). To satisfy this high standard, a plaintiff must establish “[s]omething more than the mere commission of a tort.” Lindsey v. Clinch Cty. Glass, Inc., 718 S.E.2d 806, 807 (Ga. Ct. App. 2011) (citation omitted). A plaintiff must establish “circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.” Haughton v. Canning, 650 S.E.2d 718, 723 (Ga. Ct. App. 2007). It follows that “negligence, even gross negligence, is inadequate to support a punitive damages award.” Lindsey, 718 S.E.2d at 807 (internal citation omitted).

*4 Punitive damages are not recoverable in automobile collision cases “when a driver simply violates a rule of the road.” Id.; see also Huezo v. Halilovic, No. 13-cv-2580-SCJ, 2015 WL 13776584, *3 (N.D. Ga. Apr. 7, 2015). Punitive damages are only recoverable “where the collision resulted from a pattern or policy of dangerous driving.” Lindsey, 718 S.E.2d at 807. “Examples of such a ‘pattern’ or ‘policy’ include a driving history of several DUIs, excessive speed and striking vehicle twice, driving 20 miles with serious mechanical difficulties, and a DUI in conjunction with numerous traffic safety violations.” Huezo, 2015 WL 13776584, *3 (collecting cases). The alleged willful misconduct or aggravating circumstances must also relate to the tort alleged. Carter v. Spells, 494 S.E.2d 279, 281 (Ga. Ct. App. 1997). “Whether the tort was sufficiently aggravating to authorize punitive damages is generally a jury question.” Tookes v. Murray, 678 S.E.2d 209, 213 (Ga. Ct. App. 2009). But, when a plaintiff fails to establish a question of fact that a defendant’s conduct was either willful or consciously indifferent to the consequences, a court may grant summary judgment. Taylor v. Powertel, Inc., 551 S.E.2d 765, 769 (Ga. Ct. App. 2001).

1. Claims Against Defendant Quality Logistics, Inc.
Defendant Quality Logistics moved for summary judgment on Plaintiff’s claim for punitive damages based on its alleged negligent hiring, supervision, or entrustment, arguing its conduct (even if negligent or grossly negligent) was not so outrageous as to permit punitive damages. At summary judgment, the question is whether Plaintiff has presented evidence from which a jury could conclude Quality Logistics “acted with such an entire want of care as to raise a presumption of conscious indifference to the consequences.” W. Indus., Inc. v. Poole, 634 S.E.2d 118, 121 (Ga. Ct. App. 2006). In other words, Plaintiff must produce evidence “from which a jury could infer that [Quality Logistics’] actions showed a conscious indifference to the consequences as alleged in the complaint.” MasTec N. Am., Inc. v. Wilson, 755 S.E.2d 257, 259 (Ga. Ct. App. 2014). Plaintiff may do this “by showing that an employer had actual knowledge of numerous and serious violations on its driver’s record, or, at the very least, when the employer has flouted a legal duty to check a record showing violations.” Id.

Plaintiff has presented no evidence to support the actual knowledge prong of this inquiry. Nothing suggests Defendant Quality Logistics had actual knowledge of Garkusha’s driving infractions. It pulled his Washington driving record in late October 2015 before hiring him, and it showed “no violations, convictions, or accidents currently on file for this record.” (Dkt. 78-5 at 10.)

But the “flouting a legal duty” prong is a much closer call. And, after careful consideration, the Court finds it a call for the jury. The Georgia Court of Appeals’ decision in Smith v. Tommy Roberts Trucking Co., 435 S.E.2d 54 (Ga. Ct. App. 1993), supports this conclusion. In that case, the court explained that Georgia law does not impose a duty on an automobile owner to investigate the competency of someone to whom he or she entrust an automobile. Id. at 57. But, “the situation is different where the driver is in fact incompetent and the owner is in law bound to check the driver’s qualifications.” Id. (quoting Jones v. Dixie Drive It Yourself Sys., 104 S.E.2d 497, 501 (Ga. Ct. App. 1958)). The Georgia court also explained, “[w]here the owner has a statutory duty to check on the driver’s qualifications, the defendant would be precluded from the defense that it did not have actual knowledge of such incompetence on the part of the driver.” Id. (internal quotation marks omitted). The evidence before the Smith court showed that the employer knew its driver had received tickets for two traffic violations while driving a company vehicle. Id. The plaintiff also presented evidence that the employer had a legal duty to make certain inquiries into the driver’s qualifications but failed to do so. Id. The undisputed facts showed that, had the employer checked the driving record, it would have seen that the driver had several other traffic violations on his record, including a DUI. Id. The court thus concluded it was “for the jury to decide whether those facts show the driver’s incompetency, the employer’s knowledge of the incompetency, and that the employer’s negligence, if any, concurred with that of the driver to cause the plaintiff’s injuries.” Id.

*5 The same is true here. Defendant Quality Logistics makes much of the fact that it pulled Garkusha’s Washington driving record and it showed nothing. That is of little surprise considering he only obtained that license two days before Quality Logistics pulled the record. (Dkt. 78-5 at 10.) It also appears Quality Logistics only reviewed an abstract of his commercial driver’s record, rather than his complete Washington record. (Id.) The federal statute, however, required it to review his motor vehicle record for any state in which he had a license in the prior three years. See 49 C.F.R. § 391.23 (directing employer to obtain applicant’s driving record from any state where he held or holds a license from the past three years). Defendant Quality Logistics concedes it should have obtained Garkusha’s Oregon driving record for the past three years. (See Dkt. 78-2 at 16 (“Even if Kolesnik had obtained Garkusha’s Oregon MVR for three years, as required by 49 C.F.R. § 391.23, the most it would have shown may have been a speeding violation in 2013.”).)6 Had it done what federal law required it to do, Quality Logistics would have reviewed Garkusha’s complete driving record for both states and learned a whole lot more. It would have learned of his prior citations in both states for speeding. And not small speeding infractions. In March 2013, police cited him in Oregon for going 81 miles per hour in a 55-mph zone, and then two months later (in May 2013), police cited him in Washington for driving 83 miles per hour in a 60-mph zone. (Dkts. 80-5 at 13; 80-9 at 2.)7 Quality Logistics would have also learned that, when ticketed in Oregon, police also cited him for driving with a suspended license. (Dkt. 78-6.) This might have caused Quality Logistics to inquire as to why his license had been suspended and learn of his prior DUIs and refusal to take a breath test. (Dkts. 78-1 ¶ 18; 78-11; 80-2 ¶¶ 8–9, 13.) It would also have certainly caused Quality Logistics to know that Garkusha lied in his application for employment. Specifically, the record would have alerted it to his failure to disclose the three traffic convictions in his application and his untruthfulness in stating he had never had a license suspended or revoked. (Dkt. 78-5 at 18.)

The complete Washington driving record would also have disclosed that, between June 2010 and February 2015, he was required to have an Ignition Interlock Device on his vehicle as a result of his prior DUI arrests. (Dkt. 80-5 at 4.) A review of the complete Washington driving record would also have certainly caused Quality Logistics to learn of his three DUI arrests (one in October 2006 and two in March 2009). (Id. at 3–4.) While those convictions were more than three years old, they would have explained the basis for the interlock device that was required and then removed during the three years prior to his employment.

*6 Defendant Quality Logistics argues that none of these facts matters because no evidence shows that the accident here arose from Garkusha’s excessive speed, violation of a crosswalk signal, or intoxication. Georgia law does not require such an identicalness of circumstances. Garkusha’s prior driving infractions (most notably the speeding and failure to yield) show his recklessness and carelessness behind the wheel of a car. They may have manifested in specific citations but they show the failure to exercise appropriate care while driving. They show a history of many serious violations that — when considered with his lies — could, and likely should, have put Quality Logistics on notice that he was incompetent to drive its trucks. From the evidence presented, a jury could conclude Defendant Quality Logistics flouted its legal duty to conduct due diligence into Garkusha’s driving background before hiring him and thus acted with such conscious indifference to the consequences of his actions.

Compare this case to MasTec North America, Inc. v. Wilson, 755 S.E.2d 257 (Ga. Ct. App. 2014). In that case, the Georgia Court of Appeals reversed an award of punitive damages against an employer for the acts of its employee in causing a motor vehicle accident. 755 S.E.2d at 258. The court did so because the undisputed evidence showed the employer checked the driver’s complete driving record and the driver had never been involved in an accident, had no traffic citations in the three years before his hiring, and had never had his license suspended or revoked. Id. at 260. The facts here fail each item relied on by the court in MasTec. Quality Logistics did not review Garkusha’s complete driving record and Garkusha had numerous and serious violations during the preceding three years, had been in an accident before, and had his license suspended. Following MasTec and Smith, this Court denies Defendant Quality Logistics’ motion for summary judgment on Plaintiff’s claim for punitive damages.8

2. Punitive Damages Claim Against Defendant Yevgeny Garkusha
Besides the claim against Quality Logistics for punitive damages, Plaintiff also appears to seek punitive damages from Defendant Garkusha in connection with the underlying negligence claim. (Dkt. 1-1 at 8, ¶¶ 46–48.)

But Plaintiff never responds to Defendants’ arguments regarding his punitive damages claim against Defendant Garkusha. Instead, he “speculatively asserts that Garkusha engaged in fraudulent behavior to obtain his CDL.” (Dkt. 83 at 13.) The record contains nothing to support this speculation, however.

Instead, Plaintiff’s response brief focuses solely on the punitive damages claims brought against Quality Logistics (i.e., the underlying negligent hiring and entrustment claim and the punitive damages claim). Under the Local Rules, the Court could consider Defendants’ argument unopposed. LR 7.1(B), NDGa. But even if Plaintiff had responded, the Court finds the record devoid of evidence that Garkusha acted with such a willful and wanton lack of care during this collision that would make this the appropriate case for punitive damages. Brooks v. Gray, 585 S.E.2d 188, 189 (Ga. Ct. App. 2003).

At worst, Garkusha blew through a red light and improperly entered the intersection. While this may have been negligent, even grossly negligent, it does not rise to the level of culpability necessary to impose punitive damages. This is because “[t]he only evidence relevant to an award of punitive damages … relates to the proximate cause of the collision.” See id. at 190. And no one contends Garkusha deliberately or wantonly ran the light and rammed his vehicle into Plaintiff’s car. There is also no evidence in the record that Defendant Garkusha’s prior driving infractions related to similar occurrences so that “the accident result[ed] from a pattern or policy of dangerous driving.” See MasTec N. Am., Inc., 755 S.E.2d at 260; see also Lindsey, 718 S.E.2d at 806 (disallowing punitive damages because no evidence driver, who was using his cell phone at the time of the crash, had a history of distraction-related accidents or other evidence to show a pattern of dangerous driving or other aggravating circumstances); Brooks, 585 S.E.2d at 190 (holding that crossing the centerline and operating a vehicle without a proper license did not warrant imposition of punitive damages); Miller v. Crumbley, 548 S.E.2d 657, 659 (Ga. Ct. App. 2001) (finding no evidence of pattern or policy of dangerous driving where driver failed to keep a proper lookout and pled guilty to following too closely).

*7 And Garkusha was not convicted of any driving violations while operating a commercial motor vehicle for Quality Logistics before the 2016 crash. Plaintiff has thus failed to put forth clear and convincing evidence that — right before and during this accident — Garkusha exhibited a related pattern of dangerous driving or showed a conscious indifference to consequences. See Carter, 494 S.E.2d at 281 (affirming summary judgment as to punitive damages for defendant driver, where defendant had history of reckless and violent behavior, was later ticketed twice for speeding and no proof of insurance, but those violations did not relate to or cause the collision at issue). As a result, the Court dismisses Plaintiff’s punitive damages claim against Defendant Garkusha.

The Court finds Plaintiff has failed to produce sufficient evidence to create an issue of fact with respect to Defendant Garkusha’s punitive damages liability. But the record does contain sufficient evidence to allow a reasonable juror to conclude that Defendant Quality Logistics could be liable for punitive damages. Summary judgment on that claim is thus inappropriate.9 Because of this, the Court likewise denies Defendants’ motion for summary judgment as to Plaintiff’s negligent hiring, entrustment, and supervision claim against Quality Logistics.

IV. Conclusion
The Court GRANTS IN PART and DENIES IN PART Defendants Yevgeny V. Garkusha and Quality Logistics, Inc.’s Motion for Partial Summary Judgment (Dkt. 78). The Court GRANTS the motion as to Plaintiff’s claim for punitive damages against Defendant Garkusha but DENIES the motion as to Plaintiff’s claim for punitive damages against Defendant Quality Logistics. The Court also DENIES the motion as to Plaintiff’s claim for imputed liability against Quality Logistics.

SO ORDERED this 14th day of August, 2020.

All Citations
Slip Copy, 2020 WL 4732187

Footnotes

1
The parties dispute, and the record is unclear, whether Garkusha was looking at his GPS or in his mirror. (Dkts. 78-1 ¶ 2; 80-1 ¶ 2.) This distinction is immaterial for the Court’s punitive damages inquiry.

2
Plaintiff stylizes his claim as “imputed liability,” which the Court construes as a claim for negligent hiring, supervision, and entrustment. (See Dkt. 1-1 at 6, ¶ 33 (“Defendant Quality was negligent in the hiring, supervision, training, and otherwise allowing Defendant Garkusha to operate a tractor-trailer on June 27, 2016.”).)

3
In his statement of additional facts, “Plaintiff maintains that Defendant Garkusha fraudulently obtained his Oregon CDL.” (Dkt. 80-1 ¶ 25.) But Plaintiff alleges nothing in his complaint accusing Defendant Garkusha of fraud and has provided no evidence of fraud, beyond the conclusory accusation. This speculation, improperly framed as fact, is immaterial to the Court’s summary judgment determination on punitive damages.

4
The Federal Motor Carrier Safety Act governs the qualifications of commercial truck drivers and specifies the investigation employers must conduct upon hiring a new driver and the documents to keep in each employee’s driver qualification file. See 49 C.F.R. § 391.51. One of these requirements is that the employer obtain the driver’s driving records for the past three years from each state where he held or holds a license. 49 C.F.R. § 391.23(a). The parties agree Defendant Quality Logistics needed to check his Oregon driving record but failed to do so.

5
Plaintiff disputes the precise timeframe of this training and argues that no proof shows that it occurred in the training records. He cites nothing in the record to refute directly this fact or contradict it. See LR 56.1(B)(2), NDGa.

6
The Court recognizes that Garkusha listed only a Washington license on his application for employment. (Dkt. 78-5 at 18.) Obviously, that was a lie. But the medical examiner’s certificate he submitted showed he had an Oregon license. (Dkt. 78-5 at 12.) He also disclosed having worked as a commercial truck driver for another company from May 2015 through October 2015. (Id. at 1.) Indeed, he claimed to have logged more than 16,000 miles as a commercial truck driver — an impossible feat for someone who claimed to have obtained his license just two days before. (Id. at 18.) All of this should have clued Quality Logistics into the possibility of some level of inconsistencies or omissions in Garkusha’s employment application as well as the need to review his Oregon driving record. Perhaps that is why Quality Logistics admits it should have reviewed that record.

7
The abstract of Garkusha’s Washington driving record that Plaintiff presented in opposition to summary judgment lists his prior DUIs but does not include the May 2013 speeding ticket. (Dkt. 80-5.) The exhibit Plaintiff presented, however, included a Notices of Suspension that he received from the Sate of Washington in June 2013 and February 2014 showing that he received the speeding citation. (Dkt. 80-5 at 12.) Plaintiff also included a copy of the ticket showing Garkusha’s excessive speed. (Dkt. 80-9 at 3.) It appears these were, in fact, part of his Washington driving record and would have been available to Defendant Quality Logistics if it had pulled the complete record. Plaintiff, however, has done an extremely poor job of explaining the documentation available to Defendant Quality Logistics at the time. Other than alleging the record Quality Logistics pulled was incomplete, Plaintiff merely summarizes Garkusha’s troubled driving history. (Dkts. 80-1 ¶ 14; 80-2 ¶¶ 4-18.) He makes little attempt to explain the holes in the driving record that it submitted, (Dkt. 80-5), or to show exactly what that record included. (Defendant does no better in explaining the details.) At this point, Plaintiff is entitled to the benefits of all reasonable inferences from the record — including the inference that the speeding infraction would have been known to Quality Logistics if it had pulled his complete Washington driving record. But, Plaintiff’s lack of precision and carelessness may present problems in ultimately reaching the jury on punitive damages. Perhaps Plaintiff will be more attentive at trial.

8
Plaintiff also argues about Garkusha’s eligibility for a commercial driver’s license. The parties spar over the effect of Defendant Garkusha’s prior DUIs on the renewal of a CDL versus the initial application for a CDL. (See Dkts. 80 at 15–18; 83 at 13–14.) None of that matters. Oregon issued Defendant Garkusha a CDL in May 2015 and Washington issued him on in October of that year. Whether he should have ever received that certification in the first place or instead been banned for life does not affect whether Plaintiff is eligible for punitive damages for this collision.

9
Quality Logistics has conceded respondeat superior liability, which would typically entitle it to summary judgment on a negligent entrustment, hiring, and retention claim under Georgia law. Yet because the Court allows the punitive damages claim to proceed against Quality Logistics, the Court cannot grant Defendants’ motion for summary judgment on that claim. The Court thus denies summary judgment on the imputed liability claim and allows it to proceed. See MasTec N. Am., Inc., 755 S.E.2d at 261 (dismissing claim against employer for negligent entrustment as duplicative when plaintiff’s punitive damages claim also failed).

2020 WL 4810117

United States District Court, E.D. Kentucky.
CHRISTOPHER D. WILSON, Plaintiff,
v.
ORVILLE J. BUTZIN, Defendant.
Civil Action No. 5: 20-178-DCR
|
Filed 08/18/2020

MEMORANDUM OPINION AND ORDER
Danny C. Reeves, Chief Judge United States District Court Eastern District of Kentucky
*1 Plaintiff Christopher Wilson and Defendant Orville Butzin were involved in a motor vehicle accident in Winchester, Kentucky on January 7, 2016. Wilson alleges that he was driving his truck along Interstate 64 when Butzin rear-ended him while driving a tractor/trailer. Wilson filed suit in Clark County Circuit Court on December 15, 2017, alleging that he suffered severe bodily injuries, pain, and reduced ability to earn money as a result of Butzin’s negligence.

Butzin removed the case to this Court on April 30, 2020, based on diversity of citizenship under 28 U.S.C. § 1332. However, because the case was removed more than one year after its filing date, the Court required Butzin to show cause why it should not be remanded to state court. See 28 U.S.C. § 1446(c). Butzin responded by alleging that Wilson had acted in bad faith by “deliberately and knowingly avoid[ing] any attempt to serve the nonresident Butzin at his known address for over two (2) years after filing the action.” [Record No. 5] This motion for summary judgment followed.

Because Butzin has demonstrated that the action was not commenced within the applicable two-year statute of limitations, his motion for summary judgment will be granted.

I.
The parties agree that Wilson attempted to serve Butzin on December 15, 2017, via certified mail at 141 Ellemoor Lane in Lexington, Kentucky. See Ky. R. Civ. P. 4.01. Butzin concedes that this initial effort at service was made in good faith, as this was Butzin’s former address and the address listed on the police report. [See Record No. 11-1, p. 3.] However, Butzin no longer lived at that address, as reflected in the Clark Circuit Court docket, which shows that the Summons and Complaint was returned undelivered on December 22, 2017. The returned envelope was stamped with Butzin’s forwarding address, which was added to the docket text: “12942 Galloway Cir., Fishers, IN 56033-9249.” [Record Nos. 7-2, p. 2; 7-3, p. 2]

No additional docket activity occurred until a new Summons was issued on June 4, 2019. Wilson again attempted service at the Ellemoor Lane address in Lexington, with a deputy from the Fayette County Sheriff’s Office noting “subject does not live at this address.” [Record No. 7-4, pp. 2-3] Another Summons was issued on March 19, 2020, when Wilson apparently tried to serve Butzin at an address in Clark County, Kentucky. That Summons was returned unexecuted on April 7, 2020, marked, “not served, unfound in Clark County.” [Record No. 7-5, pp. 2-3] Finally, pursuant to Kentucky’s long-arm statute, Wilson served a new Summons on the Kentucky Secretary of State, who delivered it to Butzin at the Galloway Circle address in Fishers, Indiana, on April 23, 2020. See Ky. Rev. Stat. § 454.210. [Record No. 7-2, p. 2; 7-6, p. 2] Butzin filed an Answer and Notice of Removal on April 30, 2020.

Wilson says there is a good explanation for the apparent lapse in activity after the initial, unsuccessful attempt to serve Butzin by certified mail. According to Wilson, “[Butzin’s] agent, Dennis Corley of MGM Adjusting, acknowledged receipt of summons and complaint … and requested an extension up and until March 4, 2018 within which to file an Answer.” [Record No. 11, p. 2] In support, Wilson has tendered correspondence from insurance adjusters McIntyre, Gilligan & Mundt, Inc., dated January 4, 2018. It provides:
*2 Dear Attorney Martin:
Our company, MGM Adjusters, Inc., is assisting FedEx Ground in the investigation of the above captioned matter. We acknowledge receipt of your recent correspondence and the enclosed summons and complaint filed against our contracted service provider and its driver. We confirm that FedEx Ground is managing this matter under their self-insured retention…. [W]e request that you grant us a 60-day extension from this date to answer the complaint that you filed…. We ask that you please acknowledge this request by signing below and returning a copy of this letter to us via mail at the address above.
[Record No. 11-2, p. 1 (emphasis added).]

Wilson, through attorney Martin, apparently agreed to Corley’s request for an extension and, on January 17, 2018, Corley extended a settlement offer to Wilson which he rejected. [Record No. 11-3, p. 1] Thereafter, Deanna Casebolt, a legal assistant at Martin’s law office, communicated directly with Dave Kadosh, a claims examiner at FedEx.1 [Record No. 11-4] By March 18, 2019, when the parties still had not been able to reach a settlement, Casebolt advised Kadosh: “[P]lease have you’re [sic] counsel file an answer and proceed accordingly.” [Record No. 11-5]

Wilson resumed efforts to serve Butzin—the only defendant named in the Complaint—in May 2019. Despite the Clark Circuit Court having received and docketed Butzin’s forwarding address in Fishers, Indiana, Wilson reports that he “had no verified information of an out of state address for the defendant.” [Record No. 11, p. 4] According to Wilson, a “White Pages Smart Check” report and Butzin’s Facebook profile led him to believe that Butzin could still be found in Kentucky. And after subsequent attempts at service in Kentucky were unsuccessful, however, he utilized Kentucky’s long-arm statute to serve Butzin at his residence in Indiana.

II.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In other words, the Court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In reviewing a motion for summary judgment, the Court must view all facts and draw all reasonable inferences in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The moving party has the initial burden to show that there is no genuine issue of material fact, but once the moving party has met its burden, the nonmoving party must demonstrate that there is sufficient evidence from which the jury could render a verdict in its favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).2

III.

A. Two-Year Statute of Limitations Applies
*3 A federal court deciding a state-law claim applies the relevant state statute of limitations. Gibson v. Slone, No. 10-145-ART, 2011 WL 2009815, at *1 (E.D. Ky. May 23, 2011) (citing Powell v. Jacor Commns. Corp., 320 F.3d 599, 602 (6th Cir. 2003)). This Court also applies state law to determine when an action “commences and when the limitations clock stops ticking.” Id. The Kentucky Motor Vehicle Reparations Act provides the statute of limitations for actions “with respect to accidents occurring” in Kentucky and “arising from the ownership, maintenance, or use of a motor vehicle.” Interlock Indus., Inc. v. Rawlings, 358 S.W.3d 925, 927-28 (Ky. 2011); Ky. Rev. Stat. § 304.39-230(1). When the plaintiff has received basic reparation benefits such as personal injury protection (“PIP”) coverage, the action must be commenced not later than two years after the last payment of benefits. See id.

The defendant has provided documentation indicating that Wilson received PIP benefits, the last of which was paid on March 8, 2016. [Record No. 7-1] Wilson does not contest this fact, nor does he dispute that two years is the applicable statute of limitations. Accordingly, Wilson was required to commence this action on or before March 8, 2018.

Kentucky Revised Statutes § 413.250 provides that “[a]n action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.” It is undisputed that the Complaint was filed and the initial Summons was issued prior to the expiration of the limitations period (on December 15, 2017). The plaintiff also concedes that “this initial effort was appropriate and made in good faith, as that address was the only known address at the time.” [Record No. 7, p. 4] However, Butzin contends that the action is untimely because Wilson “abandoned [the initial] summons almost immediately and took no further action of any kind to attend service or reissue valid summons” until more than a year after the statute of limitations expired. Id.

B. Wilson Abandoned Any Good Faith Effort to Serve the Initial Summons
The issuance of Summons is presumptive evidence that the plaintiff intends to serve the plaintiff in due course. Vidal v. Lexington-Fayette Urban Cty. Gov., No. 5: 13-117-DCR, 2014 WL 4418113 (E.D. Ky. Sept. 8, 2014) (citing Rucker’s Adm’r v. Roadway Exp., 131 S.W.2d 840, 842 (Ky. 1939)). However, this presumption can be rebutted by the facts. Id. And “[g]ood faith requires ‘a bona fide intention to have the summons filled out and signed by the clerk, accompanied by a bona fide, unequivocal intention to have it served or proceeded on presently or in due course or without abandonment.” Id. (emphasis added).

Here, there is nothing to suggest that Wilson did not have a good faith intention to serve Butzin with the Complaint when the Summons was issued initially. Butzin contends that Wilson’s lack of good faith is evidenced by his failure to make further attempts at service for nearly a year and a half. Not surprisingly, Wilson sees things differently. He argues that his continuing good faith intention to serve Butzin is demonstrated by his reasonable understanding “that service had been accepted per representations of Defendant’s agent.” However, he does not point to any facts or analysis suggesting that Dennis Corley or MGM Adjusters were Butzin’s agents for the purpose of accepting service (or any other purpose).

In evaluating actual or apparent authority, the principal has to do something to create an agency relationship. Actual authority is created when a principal expressly grants the agent authority to act on its behalf. Kindred Nursing Ctrs. Ltd. P’Ship v. Brown, 411 S.W.3d 242, 249 (Ky. Ct. App. 2011). Conversely, apparent authority is established when the principal represents that the agent has authority to act on its behalf, the third party reasonably believes the agent has such authority, and the third party’s belief is traceable to the principal’s representations. Muncy v. Intercloud Sys., Inc., No. 14-111, 2016 WL 6471452, at *3 (E.D. Ky. Nov. 1, 2016) (citing Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Co., 434 S.W.3d 489, 499 (Ky. 2014)). “When apparent authority is at issue, the court must look not to the purported agent’s manifestations, but to the principal’s manifestations that the purported agent had authority to act on his behalf.” Id. (emphasis in original) (citing Ping v. Beverly Enters., Inc., 376 S.W.3d 581 (Ky. 2012).

*4 In the present case, Wilson has not provided any facts suggesting that Butzin made a representation indicating that Corley or MGM was authorized to accept service on his behalf. And while not necessary to the resolution of this motion, Butzin has tendered a January 2020 e-mail exchange between Corley and Casebolt (assistant to Wilson’s counsel) indicating that Wilson did not believe that Corley had accepted service on Butzin’s behalf. Wilson now claims that “it was not until April of 2020 that [he] was on notice that service on this Defendant might be an issue.” [Record No. 11, p. 8] However, the January 22, 2020 e-mail from Casebolt to Corley stated: “So far you’re [sic] insured has dodged the sheriff and failed to pick up the certified mail so we would appreciate them accepting service through you.” [Record No. 12-1, p. 2]

Butzin is the only defendant named in this matter—neither his employer nor the fact of his employment is even mentioned in the Complaint. Achieving proper service upon a defendant within the time permitted is a plaintiff’s responsibility. See Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). Here, the question is whether Wilson’s attempt to serve Butzin was made in good faith. Good faith does not require “perfection or complete accuracy,” but requires that the plaintiff not take advantage of, deceive, or be underhanded. CPC Livestock, LLC v. Fifth Third Bank, Inc., 495 B.R. 332, 344 (W.D. Ky. 2013).

A pair of Kentucky Court of Appeals decisions from the 1930s is instructive. In Rucker’s Administrator v. Roadway Express, Inc., 131 S.W.2d 840 (Ky. 1939), William Rucker’s administrator sued Roadway Express based on a September 2, 1936 automobile collision. The action was filed on August 31, 1937, and a Summons was issued that same day. The Summons was directed to the sheriff of Jefferson County and delivered to the plaintiff’s attorney, who took it to his office and never delivered it to the sheriff for service. A new Summons was issued on October 13, 1937, directed to the sheriff, delivered to the plaintiff’s attorney, and executed immediately.

The defendant moved to dismiss based on the one-year statute of limitations, arguing that the filing of the action and issuance of process on August 31 was not in good faith because the process was not delivered to the sheriff for service. The plaintiff’s attorney provided several reasons for his failure to serve the initial Summons: He took the Summons back to his office while looking for the name of the defendant’s process agent but could not find it. During the time he was investigating the identity of the process agent, his wife became ill and was hospitalized for three weeks. He did not attend to any business in the office during that period. When he returned, he found the name of the defendant’s process agent, but could not find the Summons, as it had been misplaced. At that point, the plaintiff’s attorney had a new Summons issued. Id. at 841-42.

The court concluded that these circumstances reflected a good faith intention to have the Summons presently executed without any abandonment of such intention. The court was particularly influenced by the fact that the attorney’s wife was in the hospital for three of the six weeks during which service of the Summons was delayed. It observed that the plaintiff’s attorney was “undoubtedly guilty of negligence … which [came] perilously near to barring his client’s right of action.” Id. at 843. While negligence alone will not bar a cause of action, “a mere negligent delay, if of sufficient length of time, may have the effect of indicating a lack of good faith in having the process issued.”

In Louisville & N.R. Co. v. Little, 95 S.W.2d 253 (Ky. Ct. App. 1936), Ora Little sued Louisville & N.R. Co., alleging that he was wrongfully shot and wounded by its agent on February 3, 1933. Little filed suit on January 15, 1934 and obtained Summons on that date. His attorney placed the Summons in an office file and it was not delivered to the sheriff for service until March 10, 1934, more than 13 months after the cause of action accrued. The plaintiff’s attorney explained that “the matter was overlooked.” Id. at 254. However, the plaintiff’s father testified that he had advised the attorney that he wanted to prosecute the agent who shot his son and to have the Summons served on him before it was served on the railroad company. The court concluded that the “plaintiff either deliberately withheld the actual legal issuance of the Summons, or through oversight postponed the starting of the litigation until after the bell had rung out the hour barring his right of action.” Id. at 255. Either way, the action was commenced outside the statute of limitations and should have been dismissed. Id.

*5 This case is more like Little than Rucker’s Administrator, but Wilson’s failure to serve the defendant here is more egregious. While Wilson’s initial attempt to serve Butzin appears legitimate, it was ineffective, and he did not make another attempt for over 17 months. Wilson repeatedly makes the conclusory allegation that his initial attempt at service tolled the statute of limitations indefinitely. Rucker’s Administrator does not support this argument, as there is no question that the plaintiff there had every intention of serving the defendant at the time the initial Summons was issued. However, due to administrative error and the attorney’s wife’s illness, the Summons was lost and service was delayed for six weeks. The court found these circumstances “perilously near” a lack of good faith that would have barred the plaintiff’s cause of action. 131 S.W.2d 843.

Likewise, Butzin’s reliance on the more recent decision in Nanny v. Smith, 260 S.W.3d 815 (Ky. 2008), is misplaced. That case provided for equitable tolling when the court clerk did not issue Summons until after the expiration of the statute of limitations, despite timely filing of the Complaint. It is inapposite to the circumstances here because any fault concerning the Summons lies with plaintiff, not court staff. Whether the delay in effecting service on Butzin was part of Wilson’s strategy in attempting to reach a settlement with FedEx, or whether it was purely attributable to counsel’s negligence, a delay of this magnitude cannot be overlooked.

Finally, Wilson contends that Butzin waived any defense based on the statute of limitations by failing to raise it in his Answer. But Butzin maintains that he did raise the defense by asserting that the “Complaint is barred by the provisions of the Kentucky Motor Vehicle Reparations Act.” [Record No. 1-1, p. 20] While the defendant’s Answer does not clearly reference the statute of limitations, the failure to raise an affirmative defense in an Answer does not always result in waiver. Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). “The purpose of Rule 8(c) of the Federal Rules of Civil Procedure is to give the opposing party notice of the affirmative defense and a chance to respond.” Id. The defendant filed his Answer and Notice of Removal on April 30, 2020. The motion summary judgment followed less than two months later, on June 18, 2020. These proceedings are in their infancy—no scheduling order has been entered and no formal discovery has begun. Wilson does not claim to have been taken by surprise or deprived of a chance to respond based on Butzin’s statute-of-limitations defense. Accordingly, there is no reason to elevate form over substance and exclude consideration of this argument.

Based on the foregoing, it is hereby

ORDERED that Defendant Orville J. Butzin’s motion for summary judgment [Record No. 7] is GRANTED.

All Citations
Slip Copy, 2020 WL 4810117

Footnotes

1
Wilson claims Butzin was an employee of FedEx at the time of the accident, but this is not alleged in the Complaint. [Record No. 11, p. 2] Butzin contends that Caliber Express was his employer. [Record No. 12, pp. 1-2] Regardless of this factual dispute, the identity of Butzin’s employer is not dispositive for purposes of resolving Butzin’s motion to dismiss.

2
A party may file a motion for summary judgment “at any time until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b). Although formal discovery has not yet commenced, both parties have submitted various exhibits in support of their respective positions, and the plaintiff has not cited any inability to respond to the motion under Rule 56(d).