2020 WL 42269

United States District Court, N.D. Texas, Dallas Division.
SUSAN HANAN, Plaintiff,
v.
CRETE CARRIER CORPORATION and DORN KNAPP, Defendants.
CIVIL ACTION NO. 3:19-CV-0149-B
|
01/03/2020

JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER
*1 Before the Court is Defendants Crete Carrier Corporation and Dorn Knapp’s Motion for Summary Judgment (Doc. 42) against Plaintiff Susan Hanan. For the reasons that follow, the Court GRANTS in part and DENIES in part Defendants’ motion.

I.

BACKGROUND
On June 18, 2018, Susan Hanan was traveling on Interstate 45 in Navarro County, Texas, when her vehicle was hit by Crete Carrier Corporation’s tractor trailer. Doc. 4, Supp. Doc. (“Original Pet.”), ¶ 6. Hanan alleges that the vehicle was being driven by Knapp, who was an employee of Crete at the time. Id. Hanan further alleges that she was hit when “Knapp changed lanes unsafely in the lane into which [Hanan] was lawfully driving, crashing into [Hanan’s] vehicle at a high rate of speed.” Id.

Hanan brings this lawsuit against both Crete and Knapp. Id. ¶¶ 4–5. Hanan alleges that she suffered severe injuries to her head, neck, back, and other body parts as a result of the accident. Id. ¶ 6.

Hanan brings six causes of action: (1) negligence and gross negligence against both Defendants; (2) negligence per se against both Defendants;1 (3) negligent hiring against Crete; (4) negligent training against Crete; (5) negligent supervision, retention, and monitoring against Crete; and (6) negligent entrustment against Crete. Id. at 3–8.

Defendants subsequently filed a motion for summary judgment on all claims (Doc. 42). With all briefing filed, the motion is now ripe for review.

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “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). The substantive law governing a matter determines which facts are material to a case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The summary-judgment movant bears the burden of proving that no genuine issue of material fact exists. Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir.1990). Usually, this requires the movant to identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). But if the non-movant ultimately bears the burden of proof at trial, the summary-judgment movant may satisfy its burden by pointing to the mere absence of evidence supporting an essential element of the non-movant’s claim. See Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 n.10 (5th Cir. 2017).

Once the summary judgment movant has met this burden, the burden shifts to the non-movant to “go beyond the pleadings and designate specific facts” showing that a genuine issue exists. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (per curiam) (citing Celotex, 477 U.S. at 325). “This burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Id. (citations omitted). Instead, the non-moving party must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ( quotation marks omitted). “[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations incorporated and quotations marks omitted). But the court need not “sift through the record in search of evidence to support a party’s opposition to summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998) (citation and quotation marks omitted). If the non-movant is unable to make the required showing, the court must grant summary judgment. Little, 37 F.3d at 1076.

III.

ANALYSIS
*2 A. Whether Defendants Bring a Proper Summary-Judgment Motion Hanan contends that the conclusory nature of Defendants’ Motion for Summary Judgment

makes it a “no-evidence” summary judgment motion that does not satisfy Defendants’ initial burden as the moving party. Doc. 50, Pl.’s Resp., 11–12. Hanan believes that Defendants’ motion is based “solely [on] conclusory statements that [Hanan] had ‘no evidence’ to support each of her claims.” Id. at 12. Such motions, Hanan argues, are “pleading[s] that may be filed in state court, but not federal court.” Id. at 12 (quotation marks omitted) (quoting BB Energy LP v. Devon Energy Prod. Co., 2008 WL 2164583, at *12 (N.D. Tex. May 23, 2008) (citing Casteneda v. Flores, 2007 WL 1671742, at *2–3 (S.D. Tex. June 8, 2007))).
In response, Defendants believe that they met their initial burden when they “pointed… to the specific elements of the causes of action pled by Plaintiff in her complaint…on which Plaintiff cannot produce evidence sufficient to create a genuine dispute of material fact.” Doc. 59, Defs.’ Reply, 3–4 (citing Austin, 864 F.3d at 335). Thus, to Defendants, Austin forecloses Hanan’s argument that Defendants’ summary-judgment motion was improper. Id. at 4.

For all claims but the negligence per se and ratification claims, the Court need not decide whether Defendants met their initial burden on their motion, as Hanan has pointed to genuine disputes of material fact as to each of those claims. Thus, the motion will be considered, but Defendants are admonished that they should read the law on bear-bones motions like theirs..2B. Negligence Claim Against Knapp

The three elements of a negligence cause of action are duty, breach of the duty, and damages proximately caused by the breach. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001) (citing Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998)).

In their motion, Defendants argue that Hanan “has no evidence that any negligent act or omission by Knapp was the proximate cause of her alleged injuries.” Doc. 43, Defs.’ Br., 7. Defendants believe that Hanan “has no evidence to show that a reasonable person would foresee that such an accident would result in the extensive bodily injury and damage [Hanan] claims in this case.” Id. at 8.

*3 Hanan responds by pointing to the deposition of Greg Brown, a witness to the accident, who agreed with the assertion that Knapp made an “illegal or improper lane change,” which then “cause[d] an accident.” Doc. 51, Pl.’s App., Ex. B, Dep. of Greg Brown, 25:19–25. Proximate cause has two elements: cause-in-fact and foreseeability. Ginn v. Pierce, 2019 WL 4511328, at *2 (Tex. App.—Houston [14th Dist.] Sept. 19, 2019). Defendants argue only lack of foreseeability in their motion. See Doc. 43, Defs.’ Br., 8. “Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.” Tobin v. AMR Corp., 637 F. Supp. 2d 406, 413 (N.D. Tex. 2009). Specifically, “[t]he danger of injury is foreseeable if its ‘general character…might reasonably have been anticipated.’ ” Id. (emphasis added) (quoting Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 551 (Tex. 1980) (citation omitted)). The Court believes that a reasonable juror could conclude that the nature of the injuries here—head, neck, back, and other bodily injuries, see Doc. 4, Original Pet., ¶ 6—are foreseeable from an accident caused by negligent driving. Thus, there is a genuine dispute of a material fact on causation against Knapp.

As such, Defendants’ motion for summary judgment on its general negligence claim against Knapp is DENIED.3

C. Negligence per se claim
The Court finds that Defendants have met their initial burden on their summary judgment motion as to Hanan’s negligence per se claim. Defendants have pointed to specific evidence that they assert shows that Hanan’s negligence per se claim is not viable.

“Negligence per se is a common-law doctrine that allows courts to rely on a penal statute to define a reasonably prudent standard of care.” Discovery Operating, Inc. v. BP Am. Prod. Co., 311 S.W.3d 140, 162 (Tex. App.—Eastland, 2010) (citing Reeder v. Daniel, 61 S.W.3d 659, 361–62 (Tex. 2001)). For negligence per se to be viable, the plaintiff must belong to the class of individuals the statute was meant to protect, and the plaintiff’s injury must be “of a type that the statute was designed to prevent.” Id. (citing Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998)). However, if a statute is merely redundant of the ordinary standard of care, negligence per se is not a workable claim. See Powell v. Keeley, 795 F. Supp. 2d 587, 593 (S.D. Tex. 2011).

Here, Hanan has alleged Defendants committed “an unexcused breach of duty imposed by [the] Texas Transportation Code,” but does not specify which section thereof. See Doc. 4, Original Pet., ¶ 11. In their motion, Defendants cite to Section 545.060 of the Code, which prohibits drivers from moving lanes “unless that movement can be made safely.” Doc. 43, Defs.’ Br., 8 (citation omitted). Defendants then point the Court to several Texas cases in which courts decided that Section 545.060 and other sections of the Texas Transportation Code do not establish a standard of care different than the ordinary standard of care. Id. at 8–9 (citing Gore v. Gore, 233 S.W.3d 911, 913 (Tex. App.—Beaumont 2007, pet. denied); Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675 (Tex. 1998)). And, Defendants conclude, “Plaintiff has no evidence of any other special standard of care applicable to this case.” Id. at 9.

Defendants have shown that they are entitled to judgment as a matter of law if Plaintiffs are attempting to use Section 545.060 of the Texas Transportation Code—which is most applicable to the facts here, as that section regulates lane changes. See Doc. 43, Defs.’ Br., 8. The burden thus shifts to Hanan to show that there is a genuine dispute of material fact as to this claim, such as by pointing to another section of the Texas Transportation Code that is not merely redundant of the ordinary standard of care. See Celotex, 477 U.S. at 325.

*4 Hanan has not done so. In her response, Hanan argues only that the Court should deny the motion as to the negligence per se claim because the motion was an improper no-evidence summary judgment motion. Doc. 50, Pl.’s Br., 9. But as just discussed, the Court disagrees with this argument. And nowhere else in her response does Hanan discuss the negligence per se claim, or how there is a genuine dispute of material fact as to this claim. Defendants are thus entitled to summary judgment on the negligence per se claim. See Keeley, 795 F. Supp. 2d at 593 (explaining how there can be no negligence per se claim if it is merely redundant of an ordinary negligence claim); see also Little, 37 F.3d at 1076 (explaining how the court must grant summary judgment if the non-movant does not make the required showing).

Therefore, the Court GRANTS Defendants’ summary-judgment motion on the negligence per se claim. That claim is hereby DISMISSED.

C. Negligent Entrustment and Negligent Hiring
To establish a negligent entrustment claim, a plaintiff must show that: (1) the defendant/employer entrusted the vehicle to the driver; (2) the driver was an “unlicensed, incompetent, or reckless driver”; (3) “at the time of entrustment, [the employer] knew or should have known that [the driver] was an unlicensed, incompetent, or reckless driver”; (4) the driver was negligent during the accident at issue; and (5) “[the driver’s] negligence proximately caused the accident.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007). For both negligent entrustment and hiring, the risk that made the hiring negligent/entrustment must have proximately caused the plaintiff’s injuries. TXI Transp. Co., 306 S.W.3d at 240. Additionally, negligent entrustment and hiring are treated similarly under Texas law. See id. at 241 (referring to a claim as a “negligent hiring or entrustment” claim).

Defendants believe that there is no evidence for elements two and three of the negligent entrustment claim. Doc. 43, Defs.’ Br., 5–6. In response, for element (2), Hanan points to the fact that Knapp had been involved in five motor vehicle accidents and one speeding incident in the five years prior to his employment at Crete. Doc. 59, Pl.’s Br., 16. Two of those accidents involved improper lane changes. Id. at 16–17 (citing Doc. 51, Pl.’s App. Ex. C, Dep. of Dorn Knapp). Hanan also explains that Knapp admitted in his deposition that he had his license suspended once prior to joining Crete. Id. at 17. Hanan argues that these facts support the conclusion that Knapp was an incompetent or reckless driver. Defendants respond by citing to case law they say supports the contention that such facts are legally insufficient to survive summary judgment on incompetence or recklessness. See Doc. 50, Defs.’ Reply, 4–5 (collecting cases).

The Court disagrees with Defendants. Knapp was involved in five total accidents, two of which involved the same issue here—improper lane changes. Based on Knapp’s driving history, a reasonable juror could conclude that Knapp was an incompetent or reckless driver. See Onofre v. C.R. England, Inc., 2016 WL 3406196, at *7 (W.D. Tex. June 17, 2016) (“When determining whether a driver is reckless or incompetent, ‘[r]eliance is generally placed upon evidence of previous traffic violations, previous habits or intemperance.’ ” (quoting Revisore v. West, 450 S.W.2d 361, 364 (Tex. App. 1970) (alteration in original) (emphasis added))). And except in “extraordinary” cases, whether or not a driver was incompetent or reckless “is a question of fact for the jury.” Id.

Next, the Court also concludes that there is a genuine dispute of material fact as to element (3) of the negligent entrustment claim, whether Crete knew, or should have known, about Knapp’s alleged recklessness or incompetence. Hanan notes that that Knapp’s employment application listed many of his prior accidents, including one of the two that resulted from an improper lane change. Doc. 50, Pl.’s Resp., 16; Doc. 51, Pl.’s App., Ex. E. This is enough to create a genuine dispute of material fact. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010) (explaining that for a negligent entrustment claim, “a plaintiff must show that anything found in a background check would cause a reasonable employer not to hire the employee, or would be sufficient to put the employer on notice that hiring the employee would create a risk of harm to the public.” (internal quotations omitted and citations incorporated))). Additionally, Crete had notice prior to hiring Knapp that he had falsified an employment application. Doc. 50, Pl.’s Resp., 19; Doc. 51; Pl.’s App, Ex. E. And finally, Knapp admits that he was denied a job as a driver for another company due to a past accident. Doc. 51, Pl.’s App., Ex. C, Dep. of Dorn Knapp, 106:15–25. This creates a genuine dispute of material fact on this element. See Rutherford v. Joe Rud Trucking, Inc., 2015 WL 12571379, at *3 (W.D. Tex. July 1, 2015) (finding a genuine dispute of material fact on this element when an employer was not rehired by a former employer).

*5 As to whether the risk that made the entrustment and hiring allegedly negligent proximately caused the crash, again, the Court notes that the very facts that allegedly make Knapp a reckless or incompetent driver—specifically, his propensity for improper lane changes—are probative of proximate cause. See Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987) (looking to propensity of the alleged basis for incompetence or recklessness in evaluating whether the entrustment was a proximate cause of the accident). A reasonable juror could find his three other accidents probative of whether it was foreseeable that he would get into another accident as well. Thus, Hanan has raised a genuine dispute of material fact as to whether the potential negligent hiring/entrustment was a proximate cause of Hanan’s injuries.

The Court DENIES Defendants’ motion as to the negligent hiring and entrustment claims.

D. Negligent Training, Retention, Supervision, and Monitoring
“Texas law allows recovery for negligent hiring, training and supervision where an employer knew or should have known through the exercise of reasonable care that an employee was incompetent or unfit and that his hiring or retention would thereby create an unreasonable risk of harm to others.” Verhelst v. Michael D’s Rest. San Antonio, Inc., 154 F. Supp. 2d 959, 968 (W.D. Tex. 2001). Although there is no definitive elements for such claims under Texas law, a plaintiff must show the negligent training, retention, or supervision proximately caused the plaintiff’s injury. Lyle v. 24 Hour Fitness, USA, Inc., 2016 WL 3200303, at *4 (W.D. June 8, Tex. 2016) (citing TXI Transp. Co., 306 S.W.3d at 240; Morrone v. Prestonwood Christian Academy, 215 S.W.3d 575, 585 (Tex. App. 2007, pet. denied)).

1. Negligent Training
Defendants argue that Hanan does not have any evidence that Crete breached its duty to train its employees, or that any negligent training caused Hanan’s injuries. Doc. 43, Defs.’ Mot., 6. Hanan responds by noting that Knapp admitted in his deposition that Crete did not train Knapp to use the “lane of least conflict” rule. Doc. 50, Pl.’s Resp., 6 (citing Doc. 51, Pl.’s App., Ex. C, Dep. of Dorn Knapp, at 152:1–11). This rule, also known as the “lane of least resistance” rule, Hanan alleges, “is an industry standard term that commercial vehicle drivers are strongly encouraged to adhere to,” id., and evidently recommends drivers driving in the third lane from the left. Doc. 51, Pl.’s App., Ex. B, Dep. of Greg Brown, 34:10–11). Hanan directs the Court to Greg Brown’s deposition, in which he, a commercial driver for over 20 years, explained that he was taught this rule, and that Knapp was not following it on the day of the accident. Id. at 25–26 (citing Doc. 51, Pl.’s App., Ex. B, Dep. of Greg Brown, 34:5–36:1-5). Additionally, Hanan points out that on Knapp’s road quiz administered by Crete, there was only one question about this rule. Id. at 25.

There is thus evidence that supports the contention that Crete did not teach Knapp about the “lane of least conflict rule.” Greg Brown’s testimony also supports the conclusion that Crete should have taught Knapp this rule, as Mr. Brown himself was taught the rule during his training as a commercial driver. This evidence could be the basis for a reasonable juror to conclude that Crete breached its duty to adequately train Knapp. And finally, Mr. Brown’s testimony also supports a finding of proximate cause, as he testified that Knapp was not driving in the lane of least resistance. A reasonable juror could conclude that had Crete taught the “lane of least resistance” rule, and insisted on it being followed, Knapp would have been in the lane of least resistance at the time of the accident, thereby possibly avoiding the accident altogether.

*6 The Court DENIES Defendants’ motion as to the negligent training claim.

2. Negligent Retention, Supervision, and Monitoring
These claims are all related to each other and the training and hiring claims. See Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.—2002) (“[A]n employer is liable for negligent hiring, retention, or supervision if it hires an incompetent or unfit employee whom it knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others.”). Therefore, as summary judgment must be denied on the claims above, the Court also DENIES Defendants’ motion as to these claims.

E. Gross Negligence
An act consists of gross negligence when (1) “viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others” and (2) “the actor has actual, subjectiveness awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.” Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 654 (S.D. Tex. 2016) (quoting TEX. CIV. PRAC. & REM. CODE § 41.003(a)). Because the plaintiff must prove gross negligence by “clear and convincing evidence” at trial, the question at the summary judgment stage is whether the plaintiff has evidence that would allow a reasonable juror to find, by clear and convincing evidence, gross negligence. Perez Librado v. M.S. Carriers, Inc., 2004 WL 1490304, at *1–2 (N.D. Tex. June 30, 2004).

Under the objective prong, “extreme risk” refers to “the likelihood of the plaintiff’s serious injury,” “not a remote possibility or even a high probability of minor harm.” Id. The subjective prong requires that the actor actually knew there was a risk, but did not care. Id. Subjective knowledge “can be proven by direct or circumstantial evidence.” Id.

1. Knapp’s Alleged Gross Negligence
Defendants argue that Hanan does not have any evidence on either prong of gross negligence with respect to Knapp. Doc. 43, Defs.’ Mot., 10–11. In response, Hanan points to the deposition of Greg Brown, in which he testified that he saw Knapp swerving into Hanan’s driving lane multiple times while also attempting to block Hanan from switching lanes. Doc. 50, Pl.’s Resp., 32–33 (citing Doc. 50, Pl.’s App., Dep. of Greg Brown).

The Court believes that this evidence is enough for Hanan’s claim to survive a motion for summary judgment. To constitute gross negligence, “a driver’s actions must…often involv[e] multiple conscious acts or omissions[ ] to support liability.” Phillips, 189 F. Supp. 3d at 656. In Perez Librado, Judge Fitzwater explained that a jury could find an extreme degree of risk by clear and convincing evidence when the facts tended to show that the driver of a tractor trailer, among other things, “intentionally fail[ed] to observe the roadway for a period of perhaps 14 to 20 seconds.” 2004 WL 1490304, at *3. Here, similarly, there is evidence that suggests that Knapp, also in a large tractor trailer, was making aggressive movements, including swerving and preventing Hanan from changing lanes, for what a reasonable jury could find an extended distance—100 yards—and therefore period of time. Doc. 50, Pl.’s Resp., 32 (citing Doc. 51, Pl.’s App., Dep. of Greg Brown, 157:9–17). And in Perez Librado, the driver’s prolonged disregard for the rules of the road was also probative of actual, subjective awareness of the risk involved, and the conscious disregard of such risk. 2004 WL 1490304, at *3. The same can be said here.

*7 Therefore, Defendants’ motion for summary judgment on the gross negligence claim against Knapp is DENIED.

2. Crete’s Alleged Gross Negligence
Defendants argue that Hanan does not have evidence that shows that (1) entrusting Knapp to drive was an extreme risk and (2) Crete knew about, and disregarded, this risk. Doc. 43, Defs.’ Mot., 10–11. Hanan responds by arguing that circumstantial evidence, namely, Knapp’s untruthful employment application, his five prior accidents, and his seven log discrepancy violations demonstrate Crete’s conscious disregard of the extreme risk of letting Knapp drive its vehicle. Doc. 50, Pl.’s Resp., 34. Additionally, Hanan believes that a determination on subjective awareness is inappropriate at the summary judgment stage. Id. at 35–36.

Defendants reply that subjective awareness can be decided at the summary-judgment stage if and when the plaintiff does not provide any evidence of such awareness. Doc. 59, Defs.’ Reply, 10. Defendants also argue that Knapp’s history of log discrepancies and prior accidents “do not relate to Knapp’s competence as a driver…let alone that Crete was grossly negligent in hiring or retaining Knapp or in entrusting him with the truck.” Id. at 9.

First, the Court finds that Knapp’s alleged recklessness or incompetence as a driver can be the basis for a jury finding that entrusting Knapp with a vehicle posed an extreme risk. See Montemayor v. Heartland Transp., Inc., 2008 WL 4777004, at *5 (S.D. Tex. Oct. 30, 2008) (finding a fact dispute on the objective prong because “common sense suggests that often only the most infinitesimal of contingencies separate a minor accident from becoming a major one”).

Second, the Court agrees with Defendants that subjective awareness can be decided at the summary judgment stage. In fact, in the case in which Hanan cites for the proposition that it cannot, the court affirmed summary judgment on subjective awareness, albeit in the context of “wanton and willful” negligence. See Turner v. Franklin, 325 S.W.3d 771, 786–87 (Tex. App.—Dallas 2010, pet. denied). Regardless, the Court finds that there is circumstantial evidence of Crete’s subjective awareness of the potential extreme risk of entrusting the truck to Hanan. As discussed above, there is evidence that Crete was aware of Knapp’s prior lane change violations and other accidents. This could support a finding that Crete was subjectively aware of, yet ignored, the alleged extreme risk posed by allowing Knapp to drive. See Phillips, 189 F. Supp. 3d at 658 (“[T]he courts that find sufficient evidence of gross negligence are faced with egregious driving records of which the employer was aware and took no actions to address.”); Montemayor, 2008 WL 4777004, at *6 (denying summary judgment on gross negligence when the evidence showed that the company was, inter alia, aware of the driver’s unsafe driving history yet retained the driver for another assignment).

Accordingly, Defendants’ motion for summary judgment on gross negligence against Crete is hereby DENIED.

F. Ratification Against Crete
Hanan also attempts to hold Crete liable for Knapp’s alleged gross negligence through a theory of ratification. Doc. 4, Original Pet., 7–8. “A corporation is liable for punitive damages if it authorizes or ratifies an agent’s gross negligence….” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). In their motion for summary judgment, Defendants contend that Hanan has no evidence that Crete approved Knapp’s alleged grossly negligent conduct. Such approval is an essential element of a ratification claim, and thus Crete met its initial burden on its motion for summary judgment with respect to this claim. See Austin, 864 F.3d at 335 n.10. Thus, the burden shifted to Hanan to show a genuine dispute of material fact on her ratification claim. See Celotex, 477 U.S. at 325. And Hanan does not attempt to do so. She only argues that Defendants’ motion for summary judgment on this claim is an improper no-evidence summary judgment motion. Doc. 59, Pl.’s Br., 9. Thus, summary judgment on this claim must be granted. See Little, 37 F.3d at 1076.

*8 Therefore, the Court GRANTS Defendants’ summary judgment motion on the ratification claim. That claim is hereby DISMISSED.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS summary judgment on the ratification and negligence per se claims, but DENIES it as to all other claims.

SO ORDERED.

SIGNED: January 3, 2020.

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2020 WL 42269

Footnotes

1
Hanan seeks to hold Crete liable for Knapp’s alleged negligence and negligence per se based on respondeat superior and ratification, and Knapp’s gross negligence based on ratification. See Doc. 4, Original Pet., 4–8.

2
Defendants’ bear-bones summary judgment motion, at the very best, toes the line between what is and what is not acceptable in federal court. In Austin, the Fifth Circuit explained that while a party cannot merely argue that there was no evidence supporting a nonmovant’s case, “a movant may support a motion for summary judgment by pointing out that there was no evidence to support a specific element of the nonmovant’s claim.” 864 F.3d at 335 n.10. The Fifth Circuit noted that this case–element difference is “an important distinction.” Id. Defendants’ motion, by essentially stating that there is no evidence for all essential elements for every one of Hanan’s claims blurs the line-drawing set out in Austin and could make Rule 56’s other summary judgment burden-shifting mechanisms obsolete. See FED. R. CIV. P. 56(c)(1)(A)–(B).

3
Because the general negligence claim against Knapp survives summary-judgment, so does Hanan’s attempt at holding Defendants liable for Knapp’s negligence through respondeat superior.

2019 WL 7190610

United States District Court, M.D. Alabama, Northern Division.
ALTON R. GRIGGS, JR., Plaintiff,
YUSEF BRINSON, Plaintiff-Intervenor,
v.
KENWORTH OF MONTGOMERY, INC., Defendant.
CASE NO. 2:16-CV-406-ALB-SMD
|
Filed 12/26/2019

MEMORANDUM OPINION AND ORDER
ANDREW L. BRASHER UNITED STATES DISTRICT JUDGE
*1 This matter comes before the Court on Defendant Kenworth of Montgomery, Inc.’s (“Kenworth”) Motion to Compel Arbitration (Doc. 26) and Motion to Compel Intervenor Yusef Brinson’s Claims to Arbitration (Doc. 52), which have been reopened pursuant to remand from the United States Court of Appeals for the Eleventh Circuit (Doc. 132), and Kenworth’s Renewed Motion to Compel Plaintiff’s Claims and Intervenor’s Claims to Arbitration. (Doc. 133). Upon consideration of Kenworth’s motions, Plaintiffs’ responses, and the evidentiary material in support of and in opposition to the motions, Kenworth’s motions are GRANTED.

BACKGROUND
This case arises out of a 2015 tractor-trailer accident in Jackson County, Alabama. Plaintiff Alton R. Griggs Jr., a commercial truckdriver, was driving the tractor-trailer (the “truck”) when the truck allegedly lost power and the engine shut down, causing Griggs to lose control of the truck and the truck to overturn and crash. One passenger was in the truck at the time of the accident, Plaintiff-Intervenor Yusef Brinson, and both Griggs and Brinson were injured as a result of the accident.

About one month before the accident, A.K.G. Freight Carriers, LLC (“A.K.G.”) purchased the truck under warranty from Arrow Truck Sales, Inc., (“Arrow”) in Conyers, Georgia. Griggs and his wife, Kimberly Newson, are the only members of A.K.G. On March 3, 2015, Griggs was driving the truck in Selma, Alabama, when the truck allegedly experienced a sudden mechanical/electrical failure, causing it to lose power. Griggs claims that Arrow instructed him to have the truck towed to Kenworth’s repair facility in Montgomery, Alabama, and that Arrow managed and participated in “all testing, test interpretation[,] and repair decision making” related to the truck after it arrived at Kenworth’s facility. (Doc. 136 at 3).

Multiple repairs related to the truck’s Electronic Control Module (“ECM”) were completed by Kenworth over the course of the next several days. On March 4, 2015, Kenworth attempted to fix the power loss issue by tightening a loose connection to the ECM, which proved unsuccessful after the engine shut down during a test drive. On March 5, 2015, Kenworth replaced the battery cable, which also proved unsuccessful after the engine again shut down during a test drive. Finally, that same day, Kenworth removed and replaced the ECM—a repair Griggs alleges was authorized and directed by Arrow. On March 6, 2015, after the truck was returned to Griggs, Griggs was driving the truck when it again lost power, allegedly causing the accident that now forms the basis of this lawsuit.

Kenworth issued three separate repair orders and invoices for the repairs it performed on the truck, all of which contained the same arbitration provision:
4. Arbitration.
Any controversy or claim arising out of or relating to this Invoice or otherwise relating in any fashion to the purchase or sale of equipment, parts or service thereon shall be submitted to arbitration in the county in which the dealership is located in accordance with the rules of the American Arbitration Association. Judgment upon any award rendered in such proceedings may be entered in any court having jurisdiction thereof, and the parties hereto submit to the jurisdiction of all state and federal courts having venue in the county in which the dealership is located.
*2 (Docs. 133-1 at 6, 26-4 at 2, 26-5 at 2, and 26-6 at 4).

Griggs signed his individual name on the repair orders for the first two repairs and on the invoice for the third repair, though each repair order and invoice has a “Sold To” and “Ship To” section identifying A.K.G. as the customer. For the first repair, Arrow paid $189.75, and Griggs paid $214.29 with his personal Visa card. For the second repair, Griggs paid the entire repair cost—$429.64—with his personal Visa card. For the last repair, Kenworth sent Arrow a quote for approval, and Arrow paid $1,936.61. Brinson neither signed nor paid any of the repair orders or invoices.

PROCEDURAL HISTORY
On June 1, 2016, Griggs filed this action against Arrow and Kenworth, asserting (1) negligence, breach of express and implied warranties, and negligent misrepresentation/fraud claims against Arrow and (2) negligence and negligent misrepresentation/fraud claims against Kenworth. Generally, Griggs claims that the truck had “an electrical system defect that the Defendants, at various times and despite numerous opportunities, failed to repair.” (Doc. 136 at 5). With respect to Kenworth, Griggs specifically asserts the following allegations in his Complaint:
20. After the replacement of the ECM, the subject tractor was returned to GRIGGS with the assurance that the repairs that had been performed would end the tractor’s power loss and engine shut down problems. …
64. Defendant KENWORTH acted negligently and/or wantonly in failing to effectuate and confirm all necessary repairs had been performed, prior to relinquishing possession of the tractor to GRIGGS….
65. Defendant KENWORTH acted negligently and/or wantonly in representing to GRIGGS that the subject tractor’s performance problems had been corrected, prior to relinquishing possession to GRIGGS….
74. Defendant KENWORTH falsely represented to Plaintiff that it had inspected and tested the subject tractor sufficiently to identify the cause of any major defects and corrected them. Defendant Kenworth also falsely represented that the subject tractor was fully repaired and safe to be driven. The representations made by the Defendant KENWORTH were, in fact, false. The true facts were that the inspection and testing performed were not adequate to ascertain the cause of what was an intermittent problem with the electrical/mechanical systems, that the tractor had not been fully repaired and was not safe and that it would be dangerous for the Plaintiff and others to drive the subject tractor until the cause of the power loss and engine cut off and the effectiveness of the repairs were conclusively tested and confirmed.
(Doc. 1, ¶¶ 20, 64-65, 74).

On August 25, 2016, Brinson filed a motion to intervene (Docs. 38 and 44), which was granted. (Doc. 46). Like Griggs, Brinson asserts negligence claims against both Arrow and Kenworth.1 (Doc. 50). With respect to Kenworth, Brinson claims that Kenworth acted negligently and/or wantonly “in failing to adequately evaluate, investigate and confirm the cause of the subject tractor’s performance problems,” “in failing to confirm all necessary repairs had been performed,” and “in failing to perform proper testing to ascertain the true cause of the performance failure and confirm that they had been remedied.” (Doc. 50, ¶¶ 23-24, 27).

*3 Kenworth moved to compel arbitration of Griggs’s and Brinson’s claims under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), based on the arbitration provision contained in the repair orders and/or invoices. (Docs. 26 and 52). On September 22, 2017, the district court denied Kenworth’s motions to compel arbitration “without prejudice and with leave to reinstate” following resolution of a separate pending motion filed by Arrow. (Doc. 97). Kenworth timely filed an interlocutory appeal in the Eleventh Circuit, arguing that the district court erred in denying its motions to compel arbitration. (Doc. 105). On appeal, the Eleventh Circuit determined that it could not conduct “meaningful appellate review” of Kenworth’s motions based on the “summary nature of the district court’s order and the current state of the record,” and thus the court vacated the district court’s decision and remanded the case “for the court below to enter a reasoned opinion analyzing the motions to compel arbitration.” (Doc. 132). Kenworth subsequently filed a renewed motion to compel arbitration of Griggs’s and Brinson’s claims (Doc. 133), and the Court held a telephone hearing on the motions on August 28, 2019. See Dkt. Entry 139.

DISCUSSION
The FAA creates a presumption of arbitrability as to valid, enforceable arbitration agreements so long as the agreement is connected with a transaction involving interstate commerce.2 Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1329 (11th Cir. 2016); see Preston v. Ferrer, 552 U.S. 346, 349 (2008) (recognizing that the FAA “establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution”). But “the presumption does not apply to disputes concerning whether an agreement to arbitrate has been made.” Bazemore, 827 F.3d at 1329. In other words, the presumption applies to the scope of an arbitration agreement, not to whether the agreement exists. See id.

To decide a motion to compel arbitration under the FAA, the Eleventh Circuit has adopted a two-step inquiry. Klay v. All Defendants, 389 F.3d 1191, 1201 (11th Cir. 2004). First, courts must determine whether the parties agreed to arbitrate. Whether an individual is a party to the arbitration agreement is “embedded within” this inquiry. Coscarelli v. ESquared Hospitality LLC, 364 F. Supp. 3d 207, 215 (S.D.N.Y. 2019). Second, courts must determine whether “legal constraints external to the parties’ agreement foreclosed arbitration.” Klay, 389 F.3d at 1201. The dispute in this case centers solely on the first step of the inquiry.

Because arbitration is a matter of contract, courts apply state law principles governing the formation of contracts to determine whether an enforceable arbitration agreement exists between the parties. Bazemore, 827 F.3d at 1329-30; Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1368 (11th Cir. 2005). To establish the formation of a contract under Alabama law, the party seeking to enforce the contract must show by a preponderance of the evidence (1) an offer, (2) an acceptance, (3) consideration, and (4) mutual assent to the essential terms of the contract. Burch v. P.J. Cheese, Inc., 861 F.3d 1338, 1346 (11th Cir. 2017) (quoting Shaffer v. Regions Fin. Corp., 29 So. 3d 872, 880 (Ala. 2009)).

The Eleventh Circuit applies a “summary judgment-like standard” to decide a motion to compel arbitration. Bazemore, 827 F.3d at 1333. That is, a district court may decide as a matter of law whether the parties entered into an arbitration agreement if “there is no genuine dispute as to any material fact” concerning the formation of the agreement. Id. If a genuine dispute exists as to whether the parties entered into an arbitration agreement, the court must proceed summarily to trial on that issue. Id.; Burch, 861 F.3d at 1346 (citing 9 U.S.C. § 4).

A. Griggs’s Claims
Kenworth argues that Griggs’s claims are subject to arbitration because Griggs is either a signatory to a valid, enforceable arbitration agreement between Griggs and Kenworth, or alternatively, he is a non-signatory who is treated as a third-party beneficiary to the arbitration agreement and is thus equitably estopped from avoiding arbitration. Griggs argues that he is neither a signatory in his individual capacity nor a third-party beneficiary to the arbitration agreement, and thus his claims cannot be compelled to arbitration.

1. Whether Griggs is a Party to the Contract
*4 During the August 28, 2019 motions hearing, the parties agreed that the Court must first determine whether the contract containing the arbitration provision—in this case, the repair orders and/or invoices—is ambiguous as to whether Griggs is a party to the contract, i.e., whether Griggs signed the contract in his individual or representative capacity. Kenworth argued at the hearing that the contract unambiguously has three parties: Griggs, A.K.G., and Kenworth. But, under this interpretation, who signed for A.K.G.? It would have to be Griggs. So Kenworth concedes that Griggs signed in his representative capacity: the only issue is whether he also signed in his individual capacity. And that is where the contract is, at the very least, ambiguous.

To determine in which capacity a party signed a contract, Alabama courts “look to the consistency between the body of the contract and the signature block.” David v. Shah, 426 F. App’x 725, 747-48 (11th Cir. 2011) (quoting Marriott Int’l, Inc. v. deCelle, 722 So. 2d 760, 762 (1998)). “[A] signature block is unquestionably probative of the capacity in which a person is acting when he or she signs an agreement, but it is not dispositive.” Berliner Corcoran & Rowe LLP v. Orian, 563 F. Supp. 2d 250, 254 (D.D.C. 2008); 17A C.J.S. Contracts § 464. Further, “[l]oose usage by an agent of such terms as “I,” “me,” “mine,” “we,” or “ours” in referring to a business does not, standing alone, constitute a manifestation of assent to be bound personally but may corroborate other evidence.” Restatement (Third) of Agency, § 6.01 cmt. d. Though the parties’ rights are generally controlled by the written contract, when the contract is ambiguous, parol evidence regarding the parties’ intent is permitted to clarify the contract. Marriott, 722 So. 2d at 762; Lee v. YES of Russellville, Inc., 784 So. 2d 1022, 1027 (Ala. 2000) (finding parol evidence admissible to show that signatory was acting as agent where contract was ambiguous as to capacity in which he signed contract).

Here, there is no dispute that the “Sold To” and “Ship To” sections of the invoices and repair orders identify A.K.G. as the customer. There is similarly no dispute that Griggs signed his individual name on the repair orders and/or invoices without any indication that he was signing in a representative capacity on behalf of A.K.G. For these reasons, the Court finds that the contract is ambiguous as to the capacity in which Griggs signed the contract and thus considers the parol evidence submitted by the parties regarding their intent. See Marriott, 722 So. 2d at 762 (finding contract ambiguous because the body of the contract indicated the person contracted in his individual capacity and the signature block indicated the person contracted in his representative capacity); Lutz v. Van Heynigen Brokerage Co., 75 So. 284, 287-88 (Ala. 1917) (considering parol evidence where body of contract indicated person signed in representative capacity but signature block indicated person signed in individual capacity); see also Whitmore v. Hawkins, 217 F.3d 843 (4th Cir. 2000) (finding ambiguity in contract where introductory paragraph identified individual as party in individual capacity but individual only signed contract in representative capacity and had no individual signature line).

To support its argument that Griggs signed the contract in his individual capacity, Kenworth relies on the following evidence: (1) that Griggs signed his individual name to the contract without any indication that he was signing on behalf of A.K.G., (2) that the contract includes personal obligations and limitation of damages provisions, (3) that Griggs paid for some or all of two of the three repairs performed on the truck with his personal Visa card, and (4) that Griggs was present at Kenworth during the repairs, took pictures and videos of the truck when it was at Kenworth for repairs, and met with and communicated directly with Kenworth’s assistant service manager and mechanic multiple times regarding the repairs. See Docs. 133-1 at 17-20 and 143 at 4.

*5 Griggs, on the other hand, offers two affidavits to show that he signed the contract only in his representative capacity. The first affidavit—his own—states in relevant part that (1) Griggs told Kenworth that A.K.G. owned the truck and “would be the purchaser of whatever parts and repairs the truck needed”; (2) Kenworth provided price quotes and obtained pre-authorization from Newson for the work performed; and (3) Newson “handled all the aspects of the transactions with Kenworth.” (Doc. 30-4, ¶¶ 6, 9). The second affidavit—Newson’s, who is the managing member of A.K.G.—states in relevant part that (1) Newson had multiple conversations with both Arrow and Kenworth regarding the towing and repair of the truck, (2) Newson identified herself to Kenworth employees “as the company’s manager” and asked that she be informed on the progress of the repairs, (3) Newson received estimates and was asked by Kenworth to authorize repairs, and (4) Kenworth and Arrow told Newson that the problem had been identified and that the repairs performed would resolve the engine issue. (Doc. 30-5, ¶ 5). In addition, Griggs argues that the repair orders and/or invoices generated by Kenworth identifying A.K.G. in the “Sold To” and “Ship To” sections further indicate the intent of the parties that A.K.G., not Griggs, be bound by the contract.

As an initial matter, that Newson was involved in the transactions on behalf of A.K.G. or that Kenworth knew that A.K.G. was a customer is not dispositive of whether Griggs signed the repair orders and/or invoices in his individual capacity. See generally B&M Homes, Inc. v. Hogan, 376 So. 2d 667, 676 (Ala. 1979) (“It is clear in Alabama the agent for a disclosed principal can personally bind himself to the contract if he intends to add his personal guarantee.”). Again, Kenworth concedes that Griggs signed the contract in his representative capacity. The question is whether Griggs also signed the contract in his individual capacity.

Based on the evidence submitted by the parties, the Court finds that there is—at the very least—a genuine dispute of material fact regarding the capacity in which Griggs signed the repair orders and/or invoices. For instance, Griggs claims that he told Kenworth that A.K.G. “would be the purchaser of whatever parts and repairs the truck needed.” But Kenworth presented evidence that Griggs—not A.K.G.—paid some or all of two of the three repair orders and/or invoices with his personal Visa card. In addition, the parties presented conflicting evidence regarding Griggs’s involvement in the transactions and communications related to the repair work performed by Kenworth. Because there is a genuine dispute of fact regarding whether Griggs is an individual party to the contract, the Court cannot conclude as a matter of law that an arbitration agreement exists between the parties.

2. Equitable Estoppel Exception
Ordinarily, this dispute of fact would end the Court’s inquiry, and the Court would proceed to trial on the issue of whether Griggs signed the contract in his individual capacity or only as an agent on behalf of A.K.G. See Burch, 861 F.3d at 1346; Lee, 784 So. 2d at 1028 (recognizing that whether the individual signed a contract in his individual capacity or as an agent on behalf of sole proprietorship was a question for the jury). But here, Kenworth argues that even if Griggs signed the repair orders and/or invoices only in his representative capacity, Griggs’s claims are still subject to arbitration under an equitable estoppel exception that subjects a non-signatory’s claims to arbitration. The Court agrees.

Generally, a non-signatory to an arbitration agreement cannot be forced to arbitrate his claims. Cook’s Pest Control, Inc. v. Boykin, 807 So. 2d 524, 526 (Ala. 2001). But Alabama recognizes three exceptions to this general rule: (1) when the non-signatory is a third-party beneficiary to the contract, (2) when the non-signatory’s claims depend on the existence of the contract such that he is equitably estopped from avoiding arbitration, and (3) when a non-signatory seeks to enforce the arbitration clause against a signatory in a dispute that is intertwined with or related to the contract. Id. at 526-27; see also Ex parte Tony’s Towing, Inc., 825 So.2d 96, 97 (Ala. 2002) (limiting intertwining claims exception to use by the non-signatory in compelling arbitration of a signatory’s claims). Only the second exception arguably applies in this case.

*6 Although Griggs does not argue that he is a third-party beneficiary to the contract at issue, a non-signatory is “treated as a third-party beneficiary—and is equitably estopped from avoiding arbitration—when he or she asserts legal claims to enforce rights or obtain benefits that depend on the existence of the contract that contains the arbitration agreement.” Custom Performance, Inc. v. Dawson, 57 So. 3d 90, 98 (Ala. 2010) (emphases in original). In other words, a plaintiff “cannot simultaneously claim the benefits of a contract” and, at the same time, seek to avoid the arbitration agreement within that contract. Custom Performance, 57 So. 3d at 98. Whether a non-signatory is equitably estopped from avoiding arbitration is fact-specific. Id. (stating that courts “must first determine whether, under the circumstances of th[e] case, any of the legal claims asserted by [the plaintiff] are dependent on the existence of the contract that contains the arbitration agreement” (emphasis in original)).

Here, the root of Griggs’s claims—and the basis for Kenworth’s alleged liability—is that Kenworth had a contractual duty to repair the truck’s power loss and engine shut down problems and failed to repair them. Griggs admits as much in his Response to Kenworth’s Motion to Compel when he acknowledges that this suit “asserts that the tractor had an electrical system defect that the defendants, at various times and despite numerous opportunities, failed to repair,” which is “the underlying basis for negligence and gross negligence claims against the Defendant[ ].” (Doc. 136 at 5) (emphasis added). Specifically, Griggs alleges in his Complaint (1) that Kenworth made three failed attempts to repair the truck, describing the work performed by Kenworth pursuant to the three repair orders and/or invoices (Doc. 1, ¶¶ 16-21); (2) that Kenworth assured him “that the repairs that had been performed would end the [truck’s] power loss and engine shut down problems” (Doc. 1, ¶ 20); (3) that Kenworth’s failure to repair the truck was the proximate cause of the truck’s loss of power and engine shut down, which led to the accident giving rise to his injuries (Doc. 1, ¶¶ 20-23); and (4) that Kenworth “fail[ed] to adequately evaluate, investigate and confirm” the cause of the truck’s performance problems, “fail[ed] to effectuate and confirm all necessary repairs had been performed,” and “falsely represented” to him that the truck was fully repaired. (Doc. 1, ¶¶ 63-64, 74).

Even though Griggs couches his claims against Kenworth in negligence and wantonness, his claims sound, if at all, in contract. These claims are based on Kenworth’s alleged failure to perform its contractual duty to repair the truck. But “Alabama does not recognize a tort-like cause of action for the breach of a duty created by contract.” Blake v. Bank of Am., N.A., 845 F. Supp. 2d 1206, 1211 (M.D. Ala. 2012) (quoting Vines v. Crescent Transit Co., 85 So. 2d 436, 440 (1956)). Rather, “a negligent failure to perform a contract,” as Griggs alleges, “is but a breach of the contract.” Locke v. Ozark City Bd. of Educ., 910 So. 2d 1247, 1254 (Ala. 2005). Thus, Griggs’s claims are Alabama-law contract claims, not tort claims. They necessarily depend on the existence of the underlying contracts at issue and require arbitration.

But, even assuming Griggs’s claims were truly negligence claims, they would still be close enough to contract claims to say that, in this particular case, he is relying on the benefits of the underlying repair orders and/or invoices to establish his claims. For example, in Olshan Foundation Repair Co. of Mobile, LP v. Schultz, the defendant performed repair work on the foundation of the plaintiffs’ home pursuant to two contracts containing the same or a substantially similar arbitration provision. 64 So. 3d 598, 599 (Ala. 2010). The plaintiffs, a husband and wife, filed an action against the defendant, and the defendant moved to compel arbitration of their claims. Id. The husband, but not the wife, signed the contracts containing the arbitration provision, and the wife only asserted negligence and wantonness claims against the defendant. Id. at 599-601. Specifically, the wife claimed that the defendant negligently and wantonly performed work on the foundation of her house, causing damage to her house. Id. at 607-09. The repair work on which she based her claims was performed pursuant to the contracts containing the arbitration provision. Id. at 609. The Alabama Supreme Court concluded that the wife’s claims were subject to arbitration under the equitable estoppel exception because the wife had not alleged nor did the Court see how the wife could prove the existence of a duty owed by the defendant without reference to the contracts containing the arbitration provision. Id. at 610.

*7 Under these circumstances, as in Olshan, it is difficult to see how Griggs could prove his claims without the repair orders and/or invoices at issue. Griggs’s claims are predicated on and arise out of Kenworth’s failure to repair the truck. And Kenworth had a duty to repair the truck only because of the repair orders and/or invoices. Accordingly, the Court concludes that Griggs’s claims sufficiently depend on the existence of the repair orders and/or invoices such that he is equitably estopped from avoiding arbitration.

Finally, Griggs’s claims can be compelled to arbitration only if the arbitration agreement is broad enough to encompass his claims. The Court finds that it is. The arbitration agreement specifically includes “[a]ny controversy or claim arising out of or relating to this Invoice or otherwise relating in any fashion to the purchase or sale of equipment, parts or service thereon.” On its face, this provision is not limited to the parties to the contract and encompasses Griggs’s negligence claims, which arise out of or relate to the repair work performed by Kenworth as identified in the repair orders and/or invoices. Though Griggs argues that a later provision in the arbitration agreement related to jurisdictional consent—that “the parties hereto submit to the jurisdiction of all state and federal courts having venue in the county in which the dealership is located”—limits the arbitration agreement to the parties to the contract, this language at most creates doubt as to the scope of the arbitration agreement. And to the extent there is doubt concerning the scope of the agreement, that doubt should be resolved in favor of arbitrability. Moses H. Cone Memorial Hosp., 460 U.S. 1, 24-25 (1983) (“The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration ….”); Bazemore, 827 F.3d at 1329 (same); Allied-Bruce Terminix Companies, Inc. v. Dobson, 684 So. 2d 102, 107 (Ala. 1995) (same).

B. Brinson’s Claims
Unlike Griggs, it is undisputed that Brinson did not sign any of the repair orders and/or invoices containing the arbitration agreement, either in an individual or representative capacity. But Kenworth argues that Brinson’s claims are nonetheless subject to arbitration under the same equitable estoppel exception applicable to Griggs’s claims because Brinson, too, asserts claims to enforce rights or obtain benefits that depend on the existence of the contract containing the arbitration agreement.

For his part, Brinson did not respond to Kenworth’s renewed motion to compel arbitration or the Court’s order requiring him to show cause as to why his claims should not be submitted to arbitration.3 See Doc. 138. Brinson also failed to appear at the telephone conference the Court held on Kenworth’s renewed motion to compel arbitration. See Doc. 141. Accordingly, he has waived any opposition to arbitration. See United States v. Lawler, 400 F. App’x 476 (11th Cir. 2010) (recognizing that failure to respond to show cause order waives arguments in opposition); Abraham v. Greater Birmingham Humane Soc., Inc., No. 2:11-cv-4358, 2013 WL 1346534, at *4 (N.D. Ala. Mar. 28, 2013) (“Generally, the failure to respond to arguments constitutes abandonment or waiver of the issue.”).

*8 Nonetheless, the same rule that compels arbitration as to Griggs also requires Brinson’s claim to be arbitrated. Brinson, like Griggs, claims that Kenworth negligently failed to repair the truck, which led to the accident causing his injuries. Specifically, Brinson claims the following: (1) that Kenworth and Arrow “diagnosed the cause of the malfunction and determined what repairs and replacement of parts were to be made” and “controlled the time, place, manner, and nature of the tractor’s inspection, diagnosis, and repair”; (2) that the “tractor’s loss of power and engine shut down was a proximate result of Defendants’ negligence surrounding the tractor’s inspection, diagnosis, and repair”; (3) that Kenworth “acted negligently and/or wantonly in failing to adequately evaluate, investigate and confirm the cause of the subject tractor’s performance problems” prior to returning the truck to Griggs; and (4) that Kenworth “acted negligently in failing to confirm all necessary repairs had been performed” prior to returning the truck to Griggs.” (Doc. 50, ¶¶ 11, 12, 23, and 24).

As explained above, a claim for negligent failure to perform a contractual duty, which is essentially Brinson’s claim, is nothing more than a contract claim. And even if Brinson’s claims were in fact negligence claims, as with Griggs’s claims, the Court is unable to see how Brinson can prove the required existence of a duty owed by Kenworth to Brinson without the repair orders and/or invoices under which Kenworth contracted to repair the truck. It is inapposite that Brinson is not a family member, spouse, or agent of A.K.G. or Griggs. What matters is that Brinson’s claims “depend upon the existence of the contracts containing the arbitration provision.” And because the arbitration agreement is broad enough to encompass Brinson’s claims for the same reasons discussed above, Brinson’s claims, like Griggs’s, are subject to arbitration.

CONCLUSION
Based on the foregoing reasons, Kenworth’s Motion to Compel Arbitration (Doc. 26), Motion to Compel Intervenor Yusef Brinson’s Claims to Arbitration (Doc. 52), and Renewed Motion to Compel Plaintiff’s Claims and Intervenor’s Claims to Arbitration (Doc. 133) are GRANTED.

DONE and ORDERED this 26th day of December 2019.

All Citations
Slip Copy, 2019 WL 7190610

Footnotes

1
Griggs’s and Brinson’s claims against Arrow were transferred to the Northern District of Georgia (Doc. 128), leaving only their claims against Kenworth before this Court.

2
Based on their briefing, Plaintiffs do not dispute that the repair orders and/or invoices satisfy the FAA’s requirement that the contract containing the arbitration agreement involve interstate commerce.

3
Brinson responded to Kenworth’s original motion to compel arbitration, but that was several years ago before the Court’s denial of that motion, Kenworth’s appeal, and the Eleventh Circuit’s ruling. Griggs’s counsel filed a brief in opposition to Kenworth’s renewed motion that addressed the arbitrability of Brinson’s claims, Doc. 136, but Griggs’s counsel later clarified that they do not represent Brinson and did not have authority to speak for him.