2020 WL 999007
United States District Court, D. South Dakota, Western Division.
Robert GRAY, Plaintiff,
v.
MACARTHUR COMPANY, Defendant.
CIV. 16-5095-JLV
|
Signed 03/02/2020
Attorneys and Law Firms
Terence R. Quinn, Goodsell Quinn, LLP, Rapid City, SD, Christopher B. Gambill, Pro Hac Vice, Wagner, Crawford and Gambill, Terre Haute, IN, for Plaintiff.
Ryland L. Deinert, Timothy A. Clausen, Klass Law Firm, LLP, Sioux City, IA, for Defendant.

ORDER
JEFFREY L. VIKEN, UNITED STATES DISTRICT JUDGE

INTRODUCTION
*1 Plaintiff Robert Gray filed a complaint against defendant MacArthur Company seeking recovery for plaintiff’s injuries suffered when a roll of rubber roofing materials broke loose and injured plaintiff. At the time plaintiff was injured, the rolls were being unloaded from plaintiff’s flatbed trailer by defendant’s employees. (Docket 1). Defendant filed an amended answer denying the allegations in plaintiff’s complaint. (Docket 26). Defendant filed a motion for summary judgment together with a legal memorandum, a statement of undisputed material facts and nine exhibits. (Dockets 32-34 & 35-1 through 35-9). Plaintiff filed a legal memorandum in resistance to defendant’s motion together with a response to defendant’s statement of undisputed facts, three exhibits and plaintiff’s affidavit. (Dockets 36, 37-1 through 37-3, 38 & 38-1). Defendant filed a reply brief and two additional exhibits. (Docket 39, 41-1 & 41-2). For the reasons stated below, defendant’s motion for summary judgment is denied.

STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if the movant can “show 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). Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at p. 248. “[T]he 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.” Id. at 247-48 (emphasis in original).

If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party failed to “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In such a case, “there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at p. 323.

In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The key inquiry is “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, 477 U.S. at pp. 251-52.

FACTUAL SUMMARY
*2 The following recitation consists of the material facts developed from plaintiff’s complaint (Docket 1), defendant’s amended answer (Docket 26), defendant’s statement of undisputed material facts (Docket 34) and plaintiff’s response to defendant’s statement of undisputed material facts (Docket 36). Where a statement of fact is admitted by the opposing party, the court will only reference the initiating document. These facts are “viewed in the light most favorable to [Mr. Gray, who is] opposing the motion.” Matsushita Elec. Indus. Co., 475 U.S. at 587. The facts material to defendant’s motion for summary judgment are as follows.

Plaintiff Robert Gray is a resident of the State of Indiana. (Docket 1 ¶ 1). Defendant MacArthur Company is a business operating in Sioux Falls, South Dakota. Id. ¶ 2. The home office of MacArthur Company is in St. Paul, Minnesota. Id.

On April 20, 2015, Mr. Gray was an employee of Boyd Operating, Inc., a trucking company located in Indiana. Id. ¶ 5. His entire career had essentially been as a truck driver dominated by mostly long-haul routes. (Docket 34 ¶ 30). Mr. Gray had driven truck for his employer for 13 years as of the date of the incident giving rise to this case. Id. ¶ 4. Mr. Gray had experience hauling rubber roofing materials, including rubber roofing rolls, for Firestone at the time of his injuries. Id. ¶ 5. Prior to April 20, 2015, Mr. Gray delivered approximately four or five loads of roofing materials from Firestone to the MacArthur Company warehouse in Sioux Falls. Id. ¶ 6; see also Docket 36 ¶ 6.

While acting in the course and scope of his employment, Mr. Gray picked up a load of roofing material from the Firestone Company located in Hendricks County, Indiana. (Docket 1 ¶ 6). The rubber roofing rolls were loaded to form pyramids and had 2×4 guards installed on the side of the trailer to keep the rolls from rolling off while being loaded. (Dockets 34 ¶ 14 & 36 ¶ 14). Mr. Gray testified that following the loading process the truck driver is responsible for placing and tightening straps across the pyramids of rolled rubber roofing to secure the load for transport. (Docket 38-1 ¶ 8).1 Straps were utilized to secure the rolls of roofing material while on the highway. (Docket 36 ¶ 14). Mr. Gray denies the 2×4 guards stabilized the load. Id. ¶ 15.

Mr. Gray drove the flatbed truck2 of roofing materials to the MacArthur Company’s place of business in Sioux Falls, South Dakota. (Docket 1 ¶ 7). Upon arrival, Mr. Gray unhooked the straps from the load as required and drove the truck and trailer into the warehouse unloading bay. (Docket 34 ¶ 7). Defendant’s employees directed the trailer to a “crooked” position. (Docket 38-1 ¶ 10). Mr. Gray saw that this did not provide sufficient room on the passenger side of the trailer to properly operate a forklift to remove the pallets of roofing material. Id. Mr. Gray indicated to defendant’s employees that the truck could be moved to where they could safely and properly remove the pallets from the passenger side. (Docket 38-1 ¶ 10). Defendant’s employees never asked or directed that the trailer be moved, so it remained in this “crooked” position. Id.

*3 Defendant’s employees Redmond Patterson and Austin Irvine began unloading the flatbed using forklifts. (Dockets 1 ¶ 8 & 34 ¶ 9). They told Mr. Gray they did not need help unloading the trailer. (Docket 34 ¶ 9). MacArthur Company had a policy that only its employees could unload the trailer. Id. ¶ 10. Mr. Grey knew this was defendant’s policy. Id.

Even though there was no set way to unload the trailer, Mr. Gray wanted his trailer unloaded using a spear, as opposed to forks on a forklift. (Docket 34 ¶ 30). Neither Firestone nor Boyd Transport cared how an end customer like MacArthur Company unloaded trailers. Id. MacArthur Company was not given any instructions on how to unload the trailer. Id.

For safety reasons, Mr. Grey knew he was to stay away from the trailer because items could fall off during the unloading process. Id. ¶ 11; see also Docket 36 ¶ 11. Mr. Gray planned to stand by the truck cab and not help unload his trailer. (Docket 36 ¶ 12). Mr. Gray knew it was generally safe to stay by the cab while defendant’s employees were in the process of unloading the trailer. Id. ¶ 8 (emphasis omitted).

Mr. Grey knew when rubber roofing rolls were being unloaded from the side of the trailer, like defendant’s employees were doing on the day of his injury, and the rolls are bumped by a worker unloading material on the other side of the trailer, the pyramid formation may shift causing rolls to fall or come off. (Docket 34 ¶ 23). Mr. Grey knew he should not be in the area of the trailer when it was being unloaded because he could not see what was occurring on both sides of his trailer. Id. ¶ 24.

It is common knowledge in the trucking industry that when hauling rubber rolls, or a similar product, a driver is not to change the structural side of the trailer or remove the guards unless that is discussed with the people unloading the trailer. Id. ¶ 25. It is also common knowledge that a driver should not approach the customer’s employees on the side of the trailer while it is being unloaded. Id. ¶ 26. If the driver needs to talk to the unloaders, the driver should first get their attention before moving into the zone of danger. Id.

Mr. Gray observed one of defendant’s forklift operators extend the forks into the pyramid to lift the rolled roofing material off the trailer. (Docket 38-1 ¶ 19). By improperly extending the forks into the pyramid the roofing material can be damaged. Id. ¶ 15. When challenged by Mr. Gray, the forklift operators stopped unloading and left the area. Id. ¶ 20. Mr. Gray intended to instruct the forklift operators on the proper way to unload when they returned. (Docket 36 ¶ 18). Because the load was Mr. Gray’s responsibility, he thought he should instruct the defendant’s employees how to properly unload the roofing rolls so they would not damage the goods. Id. ¶ 19.

Because the employees were gone Mr. Gray believed the area was safe. (Docket 36 ¶ 20). Several minutes went by without Mr. Gray seeing or hearing either of the two forklift operators. (Docket 38-1 ¶ 23). Mr. Gray did not notify defendant’s employees he was approaching the side of the trailer. (Docket 34 ¶ 27). As he was approaching the side of the trailer, Mr. Gray did not determine where Mr. Irvine and Mr. Patterson were when he removed two of the three 2×4 guards. Id. ¶¶ 17 & 21.

While standing near the rear of the trailer waiting for the return of the defendant’s employees, Mr. Gray heard a bang and was immediately struck by two or more rolls of rubber roofing. (Docket 38-1 ¶ 24). He did not see or hear the forklift operators prior to being struck by the rolls. Id. ¶ 25.

*4 Mr. Gray testified that one of defendant’s employees while using a forklift caught the end of a roll closest to the front of the trailer causing two or three rolls to fall off the trailer injuring him. (Docket 36 ¶ 22; see also Docket 35-4 at p. 11 (100:11-22).3 The second forklift operator told Mr. Grey he saw the rolls “fly in the air twisting” before they struck Mr. Gray. (Docket 38-1 ¶ 29).

Based on his knowledge and experience, it was Mr. Gray’s opinion the third 2×4 guard snapped in two when the rubber rolls came off the trailer. Id. ¶ 30. Based on the description from the second forklift operator, it was Mr. Gray’s opinion the other two 2×4 guards which he removed would not have prevented or stopped the rolls from coming off the trailer. Id.

Mr. Gray knew from firsthand experience he should not assume the risk of being on the side of a trailer while it was being unloaded because he was injured in a similar incident approximately one year earlier. (Docket 34 ¶ 27). Mr. Gray had removed some of the 2×4 guards in an incident in Neeland, Michigan, and knew if the guards had been kept in place, they would have eliminated the danger of rubber rolls falling on him. Id. ¶ 28. He did this even though it was his employer’s policy that its drivers could not remove the guards. Id. ¶ 29. Mr. Gray placed himself in danger by being at the side of the trailer in Neeland. Id.

Mr. Gray was terminated from his employment with Boyd Transport because the workers’ compensation insurance carrier would not insure his employer or would significantly raise its premiums if Mr. Gray remained employed. (Docket 36 ¶ 34; see also Docket 38-1 ¶ 4).

DISCUSSION
Defendant asserts two separate grounds on which it argues summary judgment should be granted in its favor; contributory negligence and assumption of the risk. (Docket 33 at p. 2).

A. Applicable Law
The parties agree the court has jurisdiction pursuant to 28 U.S.C. § 1332 as it is a diversity action. (Dockets 1 ¶ 3 & 28 ¶ 3). In diversity actions, the court applies the substantive law of the forum state. See Jordan v. NUCOR Corp., 295 F.3d 828, 834 (8th Cir. 2002). “[F]ederal courts sitting in diversity cases, when deciding questions of ‘substantive’ law, are bound by state court decisions as well as state statutes.” Hanna v. Plumer, 380 U.S. 460, 465 (1965) (referencing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). See also In re Baycol Products Litigation, 616 F.3d 778, 785 (8th Cir. 2010) (“in a suit based on diversity of citizenship jurisdiction the federal courts apply federal law as to matters of procedure but the substantive law of the relevant state.”) (internal citations omitted). Only then can the court determine whether summary judgment is appropriate. United States v. One Parcel of Real Property, 27 F.3d 327, 329 n.1 (8th Cir. 1994). In this case, the forum state is South Dakota. Accordingly, the court shall apply South Dakota law.

B. CONTRIBUTORY NEGLIGENCE
Under South Dakota law “[e]very person is responsible for injury to the person, property, or rights of another caused by his … want of ordinary care or skill, subject … to the defense of contributory negligence.” SDCL § 20-9-1. Contributory negligence is an affirmative defense which must be pled. SDCL § 15-6-8(c).

*5 A claim of contributory negligence by a party asserting a claim “does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff’s contributory negligence.” SDCL § 20-9-2. In the posture of the present motion, the court must determine whether the contributory negligence of Mr. Gray, as plaintiff, is “slight in comparison with the negligence” of the employees of MacArthur Company, the defendant. Id. “The term slight in SDCL § 20-9-2 has been defined to mean small in quantum in comparison with the negligence of the [other party].” Estate of He Crow v. Jensen, 494 N.W.2d 186, 188 (S.D. 1992) (internal citation and quotation marks omitted). “It is a question of fact which varies with the facts and circumstances of each case whether [plaintiff’s] negligence is slight compared to that of [defendant’s employees].” Id.

In other words, “even if [defendant’s] negligence is proven, recovery may be barred or reduced by [plaintiff’s] own contributory negligence.” Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D. 1986). “Issues of negligence, contributory and comparative negligence … are ordinarily questions of fact and it must be a clear case before a trial judge is justified in taking these issues from the jury. It is only when reasonable men can draw but one conclusion from facts and inferences that they become a matter of law and this rarely occurs.” Id. (internal quotation marks and citation omitted). See also Baddou v. Hall, 756 N.W.2d 554, 562 (S.D. 2008) (“[I]t must be a clear case before a trial judge is justified in taking these issues from the jury.” (emphasis in original; internal citation omitted). “[C]redibility is for the jury to decide.” Id. at 561 (internal citation omitted).

Defendant argues it is entitled to summary judgment based on plaintiff’s contributory negligence. It claims “[Mr.] Gray’s story … does not make sense as the rolls of rubber that fell on him came from the pyramid in the middle of the trailer and they landed right next to the trailer wheels ….” (Docket 33 at p. 7). Defendant asserts Mr. Gray’s story “is a red herring, as the actual location of the injury is not a genuine issue of fact … because even if [Mr.] Gray was where he claims [to have been], he wasn’t even supposed to be there while the trailer was being unloaded[.]” Id. Defendant argues Mr. Gray should have been “near the cab” and “away from the trailer.” Id. Defendant “contends it was gravity and the settling of the pyramid after the removal of two of the 2×4 guards that caused rolls to come off the trailer[.]” Id. “[E]ither way,” Defendant submits “[Mr.] Gray knowingly and wrongfully placed himself in a zone of danger[.]” Id. Defendant also contends Mr. Gray should have known he was obligated to shout out to let defendant’s employees know he was “moving into the zone of danger.” Id. at p. 8.

Defendant asserts plaintiff’s “conduct was negligent, more than slight, in comparison to the negligence of MacArthur, if any, and should preclude recovery in this case.” Id. at p. 12. Defendant argues “if [Mr.] Gray was not knowingly, wrongly, and negligently beside the trailer during the unloading process, the rubber rolls … would not have struck … and injured him.” Id.

Mr. Gray argues “[w]hen the forklift operators did not return to resume unloading the roofing, [he] walked to the driver’s side rear of the trailer … to locate the [operators] and to provide them proper instructions.” (Docket 38 at p. 2). Plaintiff asserts that without his knowledge one of the forklift operators approached the passenger side of the flatbed trailer. Id. Mr. Gray contends that “with limited room to operate the forklift” defendant’s employee “removed a pallet from the front end of the trailer, negligently knocking off two to three rolls … which came off the truck like a ‘helicopter blade’ striking Mr. Gray.” Id.

*6 Whether this incident occurred in the manner described by plaintiff or as presented by defendant is a jury question. Baddou, 756 N.W.2d at 561. The jury must determine whether plaintiff was negligent and, if so, whether plaintiff’s negligence was greater than slight in comparison to defendant’s employees’ negligence so as to bar plaintiff’s recovery in this case. SDCL § 20-9-2; Estate of He Crow, 494 N.W.2d at 188. The court is not convinced this is a “clear case” warranting “taking these issues from the jury.” Baddou, 756 N.W.2d at 562.

C. ASSUMPTION OF THE RISK
“Assumption of the risk requires that the person: ‘(1) had actual or constructive knowledge of the risk; (2) appreciated its character; and (3) voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice.’ ” Jensen v. Menard, Inc., 907 N.W.2d 816, 820 (S.D. 2018) (quoting Duda v. Phatty McGees, Inc., 758 N.W.2d 754, 758 (S.D. 2008)).
Knowledge of the risk is the watchword of assumption of risk…. Indeed, assumption of the risk imports a knowing and voluntary self exposure to a known danger. Plaintiffs cannot assume risks of activities or conditions of which they are ignorant…. They must not only know of the facts which create the danger, but they must comprehend and appreciate the danger itself…. The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence.
Duda, 758 N.W.2d at 758 (quotations and citations omitted). “Questions of …. assumption of the risk are for the jury in all but the rarest of cases so long as there is evidence to support the issues.” Stensland v. Harding County, 872 N.W.2d 92, 96-97 (S.D. 2015) (quoting Janis v. Nash Finch Co., 780 N.W.2d 497, 500 (S.D. 2010)).

MacArthur Company argues plaintiff “meets element one as he not only had constructive, but he had actual knowledge of the risk of the danger of placing himself next to the trailer while it was being unloaded.” (Docket 33 at p. 13). Defendant contends Mr. Gray “meets element two in that he appreciated the risk of placing himself on the side of the trailer and removing the guards while the trailer was being unloaded.” Id. Defendant submits plaintiff “appreciated the risk” because of his previous injury. Id. at p. 14.

Regarding the third element, defendant argues “[Mr.] Gray voluntarily accepted the risk with the time, knowledge, and experience to make his decision.” Id. With this knowledge and experience, defendant submits plaintiff “removed the guards while [the trailer] was being unloaded and knowingly placed himself in the zone of danger.” Id. Defendant asserts “[r]easonable men cannot differ on the question of whether Gray assumed the risk of injury by placing himself in the zone of danger.” Id. (referencing Myers v. Lennox Co-op Association, 307 N.W.2d 863, 864-65 (S.D. 1981)). For these reasons, defendant contends plaintiff “made an intelligent choice” and assumed “the risk presented by that course of action.” Id. (citing Myers, 307 N.W.2d at 865) (internal quotation marks omitted).

Mr. Gray asserts “there is a material issue of fact as to whether [he] exercised reasonable care in making sure that unloading had ceased, and the area had been vacated, before moving to the rear of the trailer to locate and instruct the MacArthur employees.” (Docket 38 at p. 7). Plaintiff submits “[i]t is a disputed [m]aterial [f]act as to whether [he] exercised reasonable care … [and whether] his conduct was reasonable and prudent.” Id.

*7 In response, defendant argues “[t]he risk of placing one’s self near a zone of danger, and ignoring one’s company’s own safety rule certainly is knowledge of a risk that is ‘so plainly observable [that] anyone of ‘competent faculties will be charged with knowledge of it.’ ” (Docket 39 at p. 7) (citing Westover v. East River Elec. Power Co-op, Inc., 488 N.W.2d 892, 901 (S.D. 1992)). Defendant submits “[r]easonable men cannot differ on the question of whether [Mr.] Gray knowingly placed himself in the zone of danger and assumed the risk of injuring himself especially when he was injured the exact same way … just one year prior to the injury in this case.” Id. (referencing Myers, 307 N.W. 2d at 864-65).

“Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court.” Duda, 758 N.W.2d at 759 (internal citation omitted). “A person is deemed to have appreciated the risk if it is the type of risk that no adult of average intelligence can deny.” Id. (internal citation and quotation marks omitted). “Because adults of average intelligence cannot deny the obvious, a plaintiff’s testimony on what he … knew or understood is not conclusive.” Id. (internal citation omitted). “Evidence that the plaintiff undertook the injury-causing conduct despite the choice of a reasonable alternative can also establish voluntary acceptance of the risk.” Jensen, 907 N.W.2d at 821.

It is a function of the jury to determine whether Mr. Gray assumed a risk of injury by his conduct in the specific setting of this case. Duda, 758 N.W.2d at 759. The court finds the evidence is not “so one-sided that [defendant] must prevail as a matter of law.” Anderson, 477 U.S. at p. 252. Defendant’s motion for summary judgment on its affirmative defense of assumption of the risk is denied.

ORDER
Based on the above analysis, it is

ORDERED that defendant’s motion for summary judgment (Docket 33) is denied.

All Citations
Slip Copy, 2020 WL 999007, 2020 IER Cases 76,842

Footnotes

1
Defendant objects as a general matter to Mr. Gray’s affidavit. (Docket 39 at p. 2 n.2) (internal citations omitted). Other than objecting to one statement, defendant does not specifically identify which paragraphs of Mr. Gray’s affidavit are contrary to his deposition testimony. Id. Defendant’s objection is overruled.

2
The court will use either “flatbed” or “trailer” to identify the part of the flatbed truck upon which the roofing materials were stacked. The court will use “cab” or “truck” to identify the motor vehicle pulling the flatbed.

3
The court refers to the page of the document as entered in CM/ECF and the page of the transcript because several exhibits appear as single pages and other exhibits have four pages of transcript per page in CM/ECF.

2020 WL 1239481

Court of Appeals of Georgia.
DAILY UNDERWRITERS OF AMERICA
v.
WILLIAMS.
Daily Underwriters of America
v.
Williams.
A19A2101
|
A19A2102
|
March 13, 2020
Attorneys and Law Firms
Brent Michael Estes, Atlanta, for Appellant.
Derek Chad Nuce, for Appellee.
Opinion

McFadden, Chief Judge.

*1 The issue in these companion appeals is whether Georgia law authorizes the direct actions Veronica Williams and Marleaux Williams brought against the insurer of an interstate motor carrier. One of Georgia’s direct action statutes, OCGA § 40-1-112 (c), does not authorize those actions because it is applicable only to intrastate motor carriers. But the other direct action statute, OCGA § 40-2-140 (d) (4), which is applicable to interstate carriers, does authorize them. So we affirm the trial court’s denials of the insurer’s summary judgment motions claiming that the direct actions against it were not authorized.

1. Facts and procedural posture.
Viewed in the light most favorable to the nonmovants, see Aequicap Ins. Co. v. Canal Ins. Co., 303 Ga. App. 508, 508, 693 S.E.2d 863 (2010), the evidence shows that on July 18, 2014, Veronica and Marleaux Williams were injured when a tractor-trailer driven by Edward Heard struck their car. Heard owns and operates CC&D Trucking, LLC as a sole proprietorship, and he was driving in the scope of the business of CC&D at the time of the accident. Daily Underwriters of America had issued a liability insurance policy to CC&D which was in effect at the time of the accident.

Veronica Williams, the car driver, and Marleaux Williams, the car passenger, brought separate negligence actions against Heard, CC&D, and Daily Underwriters. They cited OCGA § 40-1-112 (c) in their complaints as authorizing those direct actions against Daily Underwriters.

Daily Underwriters moved for summary judgment in each case, arguing that OCGA § 40-1-112 (c) applies only to insurers of intrastate motor carriers. Daily Underwriters contended that its insured, CC&D, was an interstate motor carrier at the time of the crash. Therefore it argued, OCGA § 40-1-112 (c) does not authorize the direct actions against Daily Underwriters.

In their response, the Williamses cited, among other things, OCGA § 40-2-140 as authorizing the direct actions against the insurer. The trial court denied Daily Underwriters’ motions for summary judgment.

We granted Daily Underwriters’ applications for interlocutory review, and these appeals followed. In Case No. A19A2101, Daily Underwriters appeals from the trial court’s denial of its motion for summary judgment in the action filed by Veronica Williams. In Case No. A19A2102, it appeals from the denial of its corresponding motion in the suit filed by Marleaux Williams. Because the appeals raise the same issues, we consider them together.

2. Direct action statutes.
Daily Underwriters argues that direct actions against the insurer of an interstate motor carrier are not authorized in Georgia. It is true that the general rule in Georgia is that a liability insurer may not be joined directly as a defendant in an action for damages against its insured. Haezebrouck v. State Farm Mut. Ins. Co., 252 Ga. App. 248, 249 (1), 555 S.E.2d 764 (2001). But exceptions for motor carriers to that general rule are provided by two separate direct action statutes: OCGA §§ 40-1-112 (c) and 40-2-140 (d) (4). See Frank E. Jenkins III & Wallace Miller III, Ga. Automobile Insurance Law § 46:1 (b) (1) (2019-2020 ed.).

*2 As explained below, OCGA § 40-1-112 (c), when read together with OCGA § 40-1-126, authorizes direct actions against insurers of motor carriers engaged in intrastate commerce — but not against insurers of motor carriers engaged in purely interstate commerce. OCGA § 40-2-140 (d) (4), however, does authorize direct actions against insurers of motor carriers engaged in interstate commerce.

(a) OCGA § 40-1-112 (c).

(i) The statute construed.
OCGA § 40-1-112 is found in the Georgia Motor Carrier Act of 2012. See OCGA §§ 40-1-50 through 40-1-200. OCGA § 40-1-112 (a) requires a “motor carrier of household goods or property or passengers” to file with the Department of Public Safety a certificate of insurance “evidencing a policy of indemnity insurance by an insurance company licensed to do business in this state …. The failure to file any form required by the department shall not diminish the rights of any person to pursue an action directly against a motor carrier’s insurer.” (Emphasis supplied.) The right to pursue such a direct action against an insurer is set out in OCGA § 40-1-112 (c), which provides: “It shall be permissible under this part [i.e., Title 40, Chapter 1, Article 3, Part 2] for any person having a cause of action arising under this part to join in the same action the motor carrier and the insurance carrier, whether arising in tort or contract.” (Emphasis supplied.) As this court has explained,
[t]he purpose of permitting joinder of the insurance company in a claim against a common carrier is to further the policy of the Motor Carrier Act, that is, to protect the public against injuries caused by the motor carrier’s negligence. The intent of this [s]tate’s motor carrier laws is that the insurer is to stand in the shoes of the motor carrier and be liable in any instance of negligence where the motor carrier is liable.
Mornay v. Nat. Union Fire Ins. Co. of Pittsburgh, 331 Ga. App. 112, 113, 769 S.E.2d 807 (2015) (citation and punctuation omitted).

Within the same part of the Georgia Motor Carrier Act is a disavowal of any apparent effort by the state to regulate purely interstate commerce. OCGA § 40-1-126 provides:
In circumstances where a motor carrier is engaged in both interstate and intrastate commerce, it shall nevertheless be subject to all the provisions of this part [i.e., Title 40, Chapter 1, Article 3, Part 2] so far as it separately relates to commerce carried on exclusively in this state. It is not intended that the department shall have the power of regulating interstate commerce of such motor carrier, except to the extent expressly authorized by this part as to such commerce. The provisions of this part do not apply to purely interstate commerce nor to carriers exclusively engaged in interstate commerce. When a motor carrier is engaged in both intrastate and interstate commerce, it shall be subject to all the provisions in this part so far as they separately relate to commerce carried on in this state. (Emphasis supplied.)

The foregoing “statutes relating to the same subject matter are in pari materia and must be construed together and harmonized whenever possible.” Long v. Dev. Auth. of Fulton County, 352 Ga. App. 815, 821 (3) (b), 835 S.E.2d 717 (2019) (citation omitted). In so construing these code sections, “we apply the fundamental rules of statutory construction that require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.” Slakman v. Continental Cas. Co., 277 Ga. 189, 191, 587 S.E.2d 24 (2003) (citations omitted). See also OCGA § 1-3-1 (a). And because “the direct action statute is in derogation of common law, … its terms require strict compliance.” Mornay, supra. at 113, 769 S.E.2d 807 (citation and punctuation omitted).

*3 With these principles in mind, we find that the plain language of OCGA § 40-1-112 (c) expressly allows an injured party to file a direct action against a motor carrier’s insurance carrier for causes of action arising “under this part,” i.e., Title 40, Chapter 1, Article 3, Part 2. And the plain language of OCGA § 40-1-126 clearly provides that “[t]he provisions of this part do not apply to purely interstate commerce nor to carriers exclusively engaged in interstate commerce.” So construed together with OCGA § 40-1-112, it is apparent that the plain language of OCGA § 40-1-126 evinces the legislative intent that the direct action provision of OCGA § 40-1-112 (c) does not apply to purely interstate commerce or to a carrier engaged exclusively in interstate commerce.

(ii) The statute applied.
Daily Underwriters contends that its insured, CC&D, was engaged exclusively in interstate commerce at the time of the accident and therefore OCGA § 40-1-112 (c) does not authorize the direct actions against the insurer. Since we are reviewing a summary judgment ruling, we must determine if there exists a genuine issue of material fact as to whether CC&D was an interstate carrier at the time of the accident. See OCGA § 9-11-56 (c) (summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law). We conclude that under the undisputed facts and as a matter of law, that it was an interstate carrier.

The record shows that at the time of the accident, Heard was driving his tractor-trailer back to CC&D’s place of business in Bainbridge, Georgia. He had picked up a load in Charlotte, North Carolina; delivered it to a drop-off point in Monroe, Georgia; and was driving back to Bainbridge when the accident occurred. The Williamses argue that a fact question exists as to whether Heard was making an intrastate or interstate delivery at the time of the accident because he had delivered the load to a store in Georgia and was on his way back to his home in Georgia at the time of the accident. They also argue that because Heard testified that he “very rarely” made deliveries within Georgia, he should not be considered a purely interstate carrier.

In distinguishing interstate from intrastate carriers, we have adopted a “trip specific” approach. Grange Indem. Ins. Co. v. Burns, 337 Ga. App. 532, 788 S.E.2d 138 (2016). In Grange, this court reversed the trial court’s order granting summary judgment to a driver injured in an accident with a tractor-trailer. This court held that the trial court erred in concluding that insurance coverage afforded by a federal endorsement applied because the truck was engaged in a purely intrastate trip involving nonhazardous commodities. In so holding, we acknowledged the Georgia Motor Carrier Act’s distinction between interstate and intrastate motor carriers when it came to federal financial responsibility limits. In interpreting OCGA § 40-1-126 (c), this court held that the determination of whether the rules regarding the federal endorsement should govern the accident depended on whether the carrier was acting as an interstate or an intrastate carrier at the time of the accident. This court adopted a “trip specific” approach, which requires an analysis of whether the carrier was engaged in interstate or intrastate commerce “during the specific trip it was engaged in at the time of the accident.” Id. at 539-541 (1) (b), 788 S.E.2d 138 (footnote omitted).

Federal case law, which we find persuasive (although it does not bind us, see Hennly v. Richardson, 264 Ga. 355, 357 (2), 444 S.E.2d 317 (1994), has expanded upon that approach. In deciding whether the particular movement of freight can be categorized as an intrastate or an interstate trip, “the intention existing at the time the movement starts governs and fixes the character of the shipment. Temporary stoppage within the state, made necessary in furtherance of the interstate carriage, does not change its character.” Swift Textiles, Inc. v. Watkins Motor Lines, 799 F.2d 697, 699 (11th Cir. 1986) (citations and punctuation omitted). See also, Roberts v. Levine, 921 F.2d 804, 812 (II) (A) (8th Cir. 1990) (“[T]he determination of whether transportation between two points in a [s]tate is interstate (or foreign) or intrastate in nature depends on the ‘essential character’ of the shipment. … Crucial to this determination is the shipper’s fixed and persisting intent at the time of shipment. … Intent is ascertained from all the facts and circumstances surrounding the transportation.”) (citation and punctuation omitted).

*4 Here, it is clear that when the trip began, Heard’s fixed and persisting intent at the time of shipment was to pick up a load of goods in North Carolina and drop it off at a store in Georgia. See Swift Textiles, supra at 812. The fact that he had to drive his truck home after the load was delivered does not convert the purpose of the travel into an intrastate trip. So we conclude that there is no material issue of fact as to whether Heard and CC&D were engaged in an interstate trip at the time of the accident. Because Heard and CC&D were engaged exclusively in interstate commerce at the time of the accident, the direct action provision of OCGA § 40-1-112 (c) does not authorize including Daily Underwriters as a named defendant in the underlying actions. So we conclude that the trial court’s denial of summary judgment to Daily Underwriters was not supported by that direct action statute.

(b) OCGA § 40-2-140 (d) (4).
But the denial of summary judgment will be affirmed if it is right for any reason. Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 208 (3) (a), (834 S.E.2d 593) (2019). Here, the direct actions against Daily Underwriters were authorized by Georgia’s other direct action statute, OCGA § 40-2-140 (d) (4). So the denial of summary judgment was correct.

(i) Waiver.
Daily Underwriters argues that we should not consider whether the direct actions are authorized by OCGA § 40-2-140 (d) (4) because in their complaints, the Williamses cited only OCGA § 40-1-112. This, the appellant argues, prohibits consideration of OCGA § 40-2-140 (d) (4) because it would exceed the scope of notice pleading. We disagree.

While it is often good advocacy to cite supporting statutory authority in a complaint, we aware of no authority for the proposition that such citations are required and the appellant has cited no such authority. On the contrary, the Civil Practice Act requires only a “short and plain statement of [the plaintiff’s] claim.” Bush v. Bank of N. Y. Mellon, 313 Ga. App. 84, 91, 720 S.E.2d 370 (2011) (punctuation and footnote omitted). “There is no magic in nomenclature, and we judge pleadings, motions and orders not by their name but by their function and substance, being always mindful to construe such documents in a manner compatible with the best interests of justice.” Fiffee v. Jiggetts, ––– Ga. App. –––– (2), ––– S.E.2d ––––, 2020 WL 771215 (Case No. A20A0131, decided February 18, 2020) (citation and punctuation omitted). Per force, as arguments are refined through dialectic exchanges in the adversary process, there is no duty to update the initial pleadings to reflect such refinements. Imposing such a requirement would be contrary to the statutory direction that the Civil Practice Act, is to “be construed to secure the just speedy, and inexpensive determination of every action.” OCGA § 9-11-1. Here, the complaints set forth plain statements of the plaintiffs’ claims, including their assertions of direct actions against the insurer. Daily Underwriters was clearly put on notice of the actions against it, and we will not allow an overbroad and unduly rigid conception of waiver to lead us to create an idiosyncratic precedent that disregards controlling legal authority. Accordingly, we consider whether the direct actions against the insurer are authorized by OCGA § 40-2-140 (d) (4).

(ii) The statute construed.
OCGA § 40-2-140, was enacted “as part of Georgia’s effort to comply with the implementation of the federal Unified [Carrier] Registration Act of 2005.” Frank E. Jenkins III & Wallace Miller III, Ga. Automobile Insurance Law § 46:1 (b) (3) (2019-2020 ed.). Among other things, it requires “[e]very foreign or domestic motor carrier … that engages in interstate commerce in this state” to register and pay fees required by the federal act. OCGA § 40-2-140 (c). It also contains the following direct action provision: “Any person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.” OCGA § 40-2-140 (d) (4).

*5 While our state appellate courts have not yet been called upon to construe the direct action provision of OCGA § 40-2-140, “federal courts have consistently held that [it applies] to [insurers of] both interstate and intrastate carriers.” Mitchell v. Dixie Transp. 2019 WL 6137488 *2, 2019 U. S. Dist. LEXIS 200117 *7 (IV) (A) (N. D. Ga. 2019) (citations omitted). See Frank E. Jenkins III & Wallace Miller III, Ga. Automobile Insurance Law § 46:1 (b) (3) (2019-2020 ed.) As those federal courts have held, “the plain language of the statute indicates that injured parties are able to join the insurers of interstate motor carriers.” Frank E. Jenkins III & Wallace Miller III, Ga. Automobile Insurance Law § 46:1 (b) (3) (2019-2020 ed.).
The Eleventh Circuit also more recently echoed this principle in Wiedeman v. Canal Ins. Co., 770 F. Appx. 497, 499 n.1 (11th Cir. 2019) (per curiam). In that case, the injured plaintiff asserted a direct claim against the insurance carrier. The insured motor carrier was a federally-registered motor carrier authorized to transport goods in interstate commerce, with its principal place of business in South Carolina. The district court found the joinder of the insurance company proper under § 40-2-140. On appeal, the [Eleventh Circuit] Court of Appeals recognized that the Georgia direct-action statute permits suits against insurers of interstate and foreign corporation commercial motor carriers. In affirming the district court’s ruling, the Eleventh Circuit gave its blessing to this oft-held conclusion, which applies equally to [the insurer’s] situation in this matter involving an interstate motor carrier.
Mitchell, 2019 WL 6137488, at *3, supra 2019 U. S. Dist. LEXIS 200117, at *9 (IV) (A) (citations and punctuation omitted).

As noted above, although we are not bound by federal decisions, we find their reasoning persuasive. See Hennly, supra. So even though Heard and CC&D were engaged in interstate commerce at the time of the accident, we find that the joinder of Daily Underwriters as a defendant in the underlying actions was authorized by the direct action provision of OCGA § 40-2-140 (d) (4). The trial court’s denial of summary judgment to Daily Underwriters was therefore correct.

(iii) Repeal by implication.
We note that Daily Underwriters has further argued that OCGA § 40-2-140 (d) (4) was repealed by implication by the Georgia Motor Carrier Act. However, “repeal by implication is not favored[.]” E-Lane Pine Hills, LLC v. Ferdinand, 277 Ga. App. 566, 568, 627 S.E.2d 44 (2005) (citation and punctuation omitted). Moreover, such repeal by implication is held when a statute “is clearly inconsistent and contrary to the most recently enacted law or where [a] later enactment appears to cover the entire subject matter and give expression to the whole law on the subject.” Id. (citation and punctuation omitted). Contrary to the appellant’s argument, OCGA § 40-2-140 is not even part of the Georgia Motor Carrier Act. See OCGA §§ 40-1-50 et seq. Rather, as noted above, it is a distinct part of the code concerning administration of the federal Unified Carrier Registration Act. Daily Underwriters has not shown that the Georgia Motor Carrier Act covers the entire subject matter of compliance with that federal act, so we find no repeal by implication of OCGA § 40-2-140.

Judgments affirmed.

McMillian, P. J., concurs in the judgments only. Senior Appellate Judge Herbert E. Phipps dissents. *

* THIS OPINION IS PHYSICAL PRECENDENT ONLY. COURT OF APPEALS RULE 33.2(a).

Phipps, Senior Appellate Judge, dissenting.

I respectfully dissent to the majority’s opinion because the Williamses have waived the application of OCGA § 40-2-140 to file a direct action against Daily Underwriters in the instant case. I believe that the trial court’s denial of summary judgment was in error.

*6 The majority correctly concludes that the Williamses were not authorized to file a direct action against Daily Underwriters pursuant to the Georgia Motor Carrier Act (OCGA § § 40-1-112 (c), 40-1-126) because CC&D was engaged in purely interstate commerce at the time of the accident.

However, the majority opinion incorrectly concludes that the language of OCGA § 40-2-140 (d) (4) authorizes the Williamses to file a direct action against Daily Underwriters. The Williamses’ complaints sought only a direct action against Daily Underwriters pursuant to the Georgia Motor Carrier Act, OCGA §§ 40-1-112 (c), 40-1-127. They did not mention using the Administration of Federal Unified Carrier Registration Act of 2005, OCGA § 40-2-140, as authority to file a direct action against Daily Underwriters until it was briefly mentioned in their response brief to Daily Underwriters’ summary judgment motion. It is well-settled that “a completely new claim made for the first time in response to the motion for summary judgment does not satisfy even the liberal requirements of the Georgia Civil Practice Act for notice pleading.” Jahannes v. Mitchell, 220 Ga. App. 102, 104 (1), 469 S.E.2d 255 (1996). Accord R. W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004). Although there is
a liberal pleading standard for civil complaints … [t]his standard … does not afford plaintiffs with an opportunity to raise new claims at the summary judgement stage. Indeed, the simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims… At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint[.]
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312 (11th Cir.) (2004) (interpreting the Federal Rules of Civil Procedure).

A claim seeking to join a defendant insurance company pursuant to the direct action statute of the Georgia Motor Carrier Act is a different from that of a plaintiff seeking to join a defendant insurance company pursuant to the Administration of Federal Unified Carrier Registration Act of 2005, OCGA § 40-2-140. As the majority opinion correctly notes, “OCGA § 40-2-140 is not even part of the Georgia Motor Carrier Act. See OCGA § 40-1-50 et seq. Rather, … it is a distinct part of the code concerning administration of the federal Unified Carrier Registration Act.” If the Plaintiffs in the instant case wanted to file a direct action against Daily Underwriters under the authority of the Administration of Federal Unified Carrier Registration Act of 2005, they should have amended their complaint in order to do so. Because the Plaintiffs failed to do so, they cannot rely on OCGA § 40-2-140 to survive summary judgment.

For these reasons, I respectfully dissent.

All Citations
— S.E.2d —-, 2020 WL 1239481