2020 WL 1074056

Court of Appeals of Georgia.
ESTES
v.
G&W CARRIERS, LLC et al.
G&W CARRIERS, LLC
v.
ESTES.
A19A2385
|
A19A2386
|
March 6, 2020
MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
Opinion

MCFADDEN, Chief Judge.

Heather Estes appeals from the order granting summary judgment to G&W Carriers, LLC in her personal injury action. Estes argues that whether she was an independent contractor or G&W’s employee — and thus barred from suing G&W — is a jury issue. We hold that there is no material question of fact that Estes is an employee. So her lawsuit against G&W is barred by the exclusive remedy provision of the Workers’ Compensation Act and we affirm the grant of summary judgment to G&W. We dismiss as moot G&W’s cross-appeal.

1. Background.
“On appeal from a grant of summary judgment, we review legal questions de novo and review the evidence in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact.” Milliken & Co. v. Ga. Power Co., 306 Ga. 6, 8 (1) (829 SE2d 111) (2019). So viewed, the record shows that Estes and her husband were tractor trailer drivers who worked as a team. G&W hired them after they completed employment applications. Estes and her husband rotated driving responsibilities on their trips.

When Estes was injured, she and her husband were hauling a load of carpet from Georgia to California. The husband was driving and Estes was in the sleeping compartment of the tractor trailer. The husband lost control of the vehicle, it rolled over onto its side, and Estes was injured.

Estes filed this action against G&W alleging that her husband’s conduct caused the collision and that his liability could be imputed to G&W “under the doctrine of lease liability, agency, or apparent agency.” G&W moved for summary judgment on two grounds: (1) that Estes’ action was barred by OCGA § 34-7-21, which provides that “the employer shall not be liable to one employee for injuries arising from the negligence or misconduct of other employees about the same business”; and (2) that Estes’ action was barred by the exclusive remedy provision of the Workers’ Compensation Act. OCGA § 34-9-11 (a). The trial court granted G&W’s motion for summary judgment, ruling that the action was barred by OCGA § 34-7-21. It did not address G&W’s exclusive remedy argument. In A19A2385, Estes appeals the grant of summary judgment to G&W. In A19A2386, G&W cross-appeals the trial court’s failure to address its exclusive remedy argument.

2. Estes was an employee and the exclusive remedy provision of the Workers’ Compensation Act bars her personal injury action.
Because G&W argued to the trial court that it was entitled to summary judgment on the ground that the exclusive remedy provision barred Estes’ action, we may affirm on that ground under the right for any reason rule even though it was not a basis for the trial court’s ruling. See City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002) (“Under the ‘right for any reason’ rule, an appellate court will affirm a judgment if it is correct for any reason, even if that reason is different than the reason upon which the trial court relied.”). And we do so.

The parties dispute whether Estes was an employee or an independent contractor. The issue is dispositive of this case because “an injured employee’s sole and exclusive remedy is under the Workers’ Compensation Act where the injury arises out of and in the scope of employment. OCGA § 34-9-11 (a).” Champion v. Pilgrim’s Pride Corp. of Delaware, 286 Ga. App. 334, 338 (c) (649 SE2d 329) (2007). And there is no material issue of fact that Estes’ injuries arose out of and in the course of her employment. See Smith v. Camarena, 352 Ga. App. 797, 799 (2) (835 SE2d 712) (2019) (“An injury is in the course of employment if it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties while he is fulfilling his duties or engaged in something incidental thereto.”) (citation and punctuation omitted); Lee v. Sears, 223 Ga. App. 897, 898 (2) (479 SE2d 196) (1996) (“An injury arises out of employment when a reasonable person would perceive a causal connection between an employee’s working conditions and his injury.”). See also White v. Excalibur Ins. Co., 599 F2d 50, 53 (II) (5th Cir. 1979) (member of two-person driving team who was sleeping in the cab at the time of collision was within the course of his employment).

As for the dispositive issue of the parties’ relationship, under longstanding Georgia law,
the true test … to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.
Golosh v. Cherokee Cab Co., 226 Ga. 636, 637 (176 SE2d 925) (1970) (citation and punctuation omitted). “The existence of this right to control by the employer may be inferred where the person is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum.” Boatright v. Old Dominion Ins. Co., 304 Ga. App. 119, 121 (695 SE2d 408) (2010) (citation and punctuation om itted).

On the issue of whether G&W had the “the right to control the time, manner and method of executing the work,” Golosh, 226 Ga at 637, the undisputed record evidence shows that G&W hired Estes and her husband generally to drive its tractor trailer. G&W owned and had DOT authority over the tractor trailer, and when Estes and her husband drove, it was under G&W’s DOT authority. G&W retained the right to terminate Estes and her husband.

G&W paid all costs of operating the tractor trailer. It was responsible for the maintenance of the tractor trailer, and G&W paid for the fuel and inspections of its tractor trailers and its drivers’ records. Although Estes and her husband paid for “scale tickets,” G&W reimbursed them.

G&W was responsible for assigning loads for hauling to Estes and her husband and for dispatching the tractor trailer; Estes and her husband were not allowed to find their own loads and had no discretion over which loads they hauled. G&W’s drivers had two or three days off between trips, but if the regulations regarding driving hours allowed it, the drivers were assigned loads.

G&W arranged the pickup and delivery times for the loads that Estes and her husband hauled, and communicated those times to Estes and her husband. Although G&W did not direct Estes and her husband to take specific routes when making deliveries, to buy fuel from specific locations, or to wear uniforms, it could have done so. G&W had the right to designate whether Estes or her husband would drive the first leg of a trip, as long as their hours were in compliance with regulations, and it had the right to direct how they should strap a load. G&W supplied Estes and her husband with log books and required them to be turned in every week.

G&W’s president testified that a driver could refuse a load only if she had “an issue”; if she refused a load otherwise, she would not keep her job with the company. To show that G&W did not control the time, manner, and method of executing the work, Estes points to her testimony that she could decline certain loads and she did so on one occasion, but this does not contradict the president’s testimony that a driver could decline a load under limited circumstances.

“The test [for determining whether a person is an employee or an independent contractor] is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract.” Golosh, 226 Ga. at 638-639 (emphasis omitted). The undisputed evidence demonstrated G&W’s assumption of the right to control the time, manner and method of Estes’ work. Given this evidence, “the fact that [G&W] issued its workers Internal Revenue Service Form 1099 (rather than Form W-2) … and did not withhold taxes from their paychecks or provide insurance for the workers does not create a jury question on [Estes’] status as an employee.” Boatright, 304 Ga. App. at 122 (1).

Estes briefly argues that G&W is responsible for her husband’s actions under federal law. But the law she cites does not help her. “[F]ederal law creates a statutory employment relationship between interstate carriers and the drivers of the trucks leased to them, but we believe that whether that statutory employment relationship is sufficient to constitute an employer/employee relationship for the purposes of workers’ compensation is a question of state law.” Judy v. Tri-State Motor Transit Co., 844 F2d 1496, 1501 (II) (11th Cir. 1988).

For these reasons, Estes’ claims were barred by the exclusive remedy provision of the Worker’s Compensation Act and we affirm the trial court’s grant of summary judgment to G&W. Given this resolution, we dismiss G&W’s cross-appeal as moot.

Judgment affirmed in Case No. A19A2385. Case No. A19A2386 dismissed as moot. McMillian, P. J., and Senior Appellate Judge Herbert E. Phipps concur.
All Citations
— S.E.2d —-, 2020 WL 1074056

2020 WL 1139560

United States District Court, E.D. California.
ACCESS BIOLOGICALS, LLC, Plaintiff,
v.
XPO LOGISTICS, LLC, Defendant.
No. 2:19-cv-01964-JAM-DB
|
Signed 03/06/2020
|
Filed 03/09/2020
Attorneys and Law Firms
Joel Mallord, Joseph J. Ybarra, Huang Ybarra Gelberg & May LLP, Los Angeles, CA, for Plaintiff.
Ognian Anguelov Gavrilov, Gavrilov & Brooks, Sacramento, CA, Robert Mark Borak, PHV, Spector Rubin P.A., Miami, FL, for Defendant.

ORDER DENYING DEFENDANT’S MOTION TO DISMISS OR TRANSFER
JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE
*1 Access Biologicals, LLC (“Access”) filed suit against XPO Logistics, LLC (“XPOL”) in September 2019. Compl., ECF No. 1. Access alleges XPOL’s improper delivery of an order of fetal bovine serum amounted to negligence, a breach of contract, and a violation of the Carmack Amendment, 49 U.S.C. § 14706. Compl. ¶¶ 18-59. Access raised these claims on its own behalf and as Life Technology, Inc.’s (“LTI”) assignee. Id.

XPOL filed a motion to dismiss or transfer Access’s suit.1 Mot. to Dismiss or Transfer (“Mot.”), ECF No. 9. XPOL argues each claim arises under a February 2, 2016 contract it entered with LTI. Mot. at 5. This contract incorporated a forum selection clause by way of XPOL’s “Standard Terms and Conditions.” Id. XPOL contends this clause required Access to file its suit in North Carolina. Id. at 5-6. Access filed an opposition to XPOL’s motion, ECF No. 18, and XPOL filed a reply, ECF No. 21. Because XPOL’s reply introduced new evidence and raised new legal arguments, the Court granted Access’s request to file a surreply. See Plf.’s Ex parte Application, ECF No. 25; Feb. 10, 2020 Minute Order, ECF No. 26; see also Plf.’s Surreply, ECF No. 27.

The Court finds XPOL failed to show that its February 2, 2016 contract with LTI covered the shipment of fetal bovine serum at issue here. XPOL similarly fell short of identifying any other basis for subjecting Access to the forum selection clause contained in XPOL’s terms and conditions. For these reasons, the Court denies XPOL’s motion to dismiss or transfer venue.

I. BACKGROUND
In October 2016, Access purchased 1200 liters of fetal bovine serum from LTI, to be delivered to Access’s contractor J.R. Scientific. Compl. ¶ 10. LTI then hired XPOL to transport the order from LTI’s facility in Grand Island New York to J.R. Scientific in Woodland, California. Compl. ¶ 11.

On January 6, 2017, XPOL’s subcontractor picked up the order at LTI’s facility and began the cross-country delivery. Compl. ¶ 14. The subcontractor arrived in Woodland, California six days later. Compl. ¶15. The parties dispute exactly what happened to the shipment en route, but ultimately, the USDA ordered that the entire order be destroyed. See Compl. ¶¶ 14-15; Mot. at 3. Access contends the destruction of their order resulted in a $298,935 loss. Compl. ¶ 15. LTI filed a claim with XPOL to recoup this loss, but XPOL denied it. Compl. ¶ 16. LTI then assigned its claims to Access. Compl. ¶ 17.

II. OPINION

A. Analysis
Forum selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972). A motion to dismiss premised upon the enforcement of a forum selection clause amounts to a Rule 12(b)(3) motion to dismiss for improper venue. Arugueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996). Rule 12(b)(3) motions, unlike Rule 12(b)(6) motions, do not require courts to accept all of the allegations in the complaint as true. Id. (citing Carnival Cruise Lines v. Shute, 499 U.S. 5858 (1991)). Indeed, a party opposing the enforcement of a forum selection clause must generally produce “some evidence … to establish fraud, undue influence, overweening bargaining power, or such serious inconvenience in litigating the selected forum so as to deprive that party of a meaningful day in court.” Argueta, 87 F.3d at 324 (quoting Pelleport Investors, Inc. v. Budco Quality Theaters, Inc., 741 F.2d 273, 280 (9th Cir. 1984), abrogated on other grounds by Powerpex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 235-36 (2007) (emphasis in original)). Here, however, Access avoids this heavy burden of production because XPOL failed to identify a forum selection clause that covers Access’s claims.

*2 As Access argues, “[i]n resolving a motion to transfer involving a forum-selection clause, ‘[t]he threshold issue is whether the forum-selection clause applies to Plaintiff’s claims.” Opp’n at 4 (quoting Henry v. Cent. Freight Lines, Inc., No. 2:16-cv-00280-JAM-EFB, 2017 WL 4517836, at *2 (E.D. Cal. Oct. 10, 2017)). XPOL contends its February 2016 contract with LTI sets forth the agreed-upon terms for the January 2017 shipment from Grand Island to Woodland. Mot. at 5-6. In support of this position, XPOL focuses on a single sentence within the agreement: “Except as modified herein, any transportation or logistics services provided by XPOL are subjected to XPOL’s standard terms and conditions ….” Id. at 5 (citing Ex. A to Perry Decl., ECF No. 19). XPOL’s standard terms and conditions, in turn, contain a forum selection clause requiring the parties to file suit in North Carolina “in the event of any disagreement or dispute.” Mot. at 5-6 (quoting Ex. A. to Perry Decl. at 16). XPOL contends its shipment from LTI’s Grand Island facility to J.R. Scientific plainly falls within the category of “any transportation or logistics services.” Mot. 3-4.

Access urges the Court to, instead, interpret the sentence XPOL identified in context of the broader document. Opp’n at 4-6. The Court finds Access’s method of contract interpretation is the proper one. See Lennar Mare Island, LLC v. Steadfast Insurance Co., 176 F. Supp. 3d 949, 955 (E.D. Cal. 2016). Using this approach, the relevant portion of the contract reads:
Purpose:
The standard operating procedures of this document have been established between Life Technologies and XPOL to define agreed best practices for the administration and transportation of Life Technologies’ shipments as shown in Schedule 1.
Scope:
XPOL will arrange with third party independent contractor licensed motor carriers (“Carriers”) for truckload transportation of Life Technologies’ shipments, in the laneways specified in Schedule 1, for the rates and terms specified therein, in accordance with the requirements set out herein. Life Technologies’ shipments shall be transported as “exclusive use” shipments, meaning no other shippers’ freight may be transported in the same trailer at the same time as Life Technologies’ shipments. Except as modified herein, any transportation or logistics services provided by XPOL are subject to XPOL’s standard terms and conditions …. Current version at Effective Date is attached as Schedule 2.
Ex. A to Perry Decl. at 1. The Schedule 1 attachment lists two laneways—one between Grand Island, NY and Chester, NY; the other between Grand Island, NY and Charlottetown, PE. Id. at 3.

The February 2016 contract’s plain language states that the purpose of the agreement was to “define agreed best practices for the administration and transportation of Life Technologies’ shipments as shown in Schedule 1.” Ex. A to Perry Decl. at 1. Schedule 1 does not include a laneway between Grand Island, NY and Woodland, CA. The Court would have to adopt an unnecessarily strained reading of the contract to find that its terms nonetheless govern this unenumerated route. The more natural interpretation of the seemingly-broad language XPOL identifies is that any transportation or logistics services provided by XPOL for the laneways listed in Schedule 1 are subject to XPOL’s terms and conditions. Accordingly, the Court finds that the forum selection clause incorporated into the February 2, 2016 contract does not apply to any claims arising out of XPOL’s January 2017 shipment to Woodland, CA.

The Rate Confirmation Sheet XPOL discusses in its reply brief does not alter the Court’s conclusion. See Reply at 3-4. After LTI hired XPOL to transport Access’s order of fetal bovine serum to California, XPOL sent LTI a Rate confirmation Sheet. Id. This form included a disclosure purporting to subject “any transportation brokerage and/or other transportation intermediary-related services provided by XPO” to the company’s “Customer Standard Terms and Conditions.” Ex. A to Supp. Perry Decl., ECF No. 22. Although it is not entirely clear from the reply, XPOL seems to argue that this disclosure either (1) reinforces the notion that the February 2016 contract bound the January 2017 shipment to XPOL’s terms and conditions; or (2) provides an independent contractual basis for subjecting the January 2017 shipment to XPOL’s terms and conditions. See Reply at 3-5. The Court does not find either argument persuasive.

*3 First, as Access argues, the fact that the February 2016 contract and the Rate Confirmation Sheet for the January 2017 order both reference XPOL’s terms and conditions does little to suggest the 2016 contract governed the 2017 shipment. The sheet does not reference the February 2016 contract or any of the laneways listed in Schedule 1 of that agreement. The Court lacks any basis for viewing these two distinct arrangements as one. Second, the Rate Confirmation Sheet does not stand as its own contract. XPOL maintains that, based on its terms and conditions, LTI agreed to be bound by XPOL’s terms and conditions when it tendered the fetal bovine serum to XPOL’s subcontractor. Reply at 4-5 (quoting Ex. A to Perry Decl. at 5). Tautologically, this argument uses standards set forth in XPOL’s terms to determine that LTI was bound by XPOL’s terms. The Court is not convinced.

XPOL’s central critique is that Access is trying to have its cake and eat it too—that Access claims the February 2016 contract to invoke its benefits but then disavows the agreement to avoid its obligations. But the Court does not find any indication that Access’s suit flows from rights the February 2016 contract created. Because XPOL failed to identify a forum-selection clause that applies to Access’s claims, the Court denies XPOL’s Rule 12(b)(3) motion.

B. Page Limits
The Court’s Order re Filing Requirements (“Order”), ECF No. 4-2, limits memoranda in support of and opposition to motions to dismiss to fifteen pages. Order at 1. It limits reply memoranda to five pages. Id. A violation of the Order requires the offending counsel (not the client) to pay $50.00 per page over the page limit to the Clerk of Court. Id. Moreover, the Court does not consider arguments made past the page limit. Id. XPOL’s brief exceeded the page limit by three pages. XPOL’s counsel must therefore send a check payable to the Clerk for the Eastern District of California for $150.00 no later than seven days from the date of this Order.

III. ORDER
For the reasons set forth above, the Court DENIES XPOL’s motion to dismiss or transfer Access’s suit.

IT IS SO ORDERED.

All Citations
Slip Copy, 2020 WL 1139560

Footnotes

1
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for February 11, 2020.