2020 WL 5977929

United States District Court, D. New Mexico.
DERRICK YAZZIE, Plaintiff,
v.
SETH FEZATTE and WERNER ENTERPRISES, INC., Defendants.
Civ. No. 16-472 JAP/KRS
|
Filed 10/08/2020

MEMORANDUM OPINION AND ORDER
*1 On April 14, 2016, Plaintiff filed a civil suit in New Mexico state court against Defendants, alleging the following claims: 1) negligence against Defendant Fezatte directly and against Defendant Werner under a theory of respondeat superior; 2) negligence per se against both Defendants; and 3) negligent training, hiring, supervision, retention, and entrustment against Defendant Werner. Plaintiff also seeks punitive damages against both Defendants. On May 24, 2016, Defendants timely removed to federal court based on diversity jurisdiction.1

In the years since, the punitive damages skirmish has predominated the litigation. After the Court initially ruled against Plaintiff on his punitive damage claims, he filed a motion asking the Court to reconsider.2 But before the Court could rule on that motion, on March 20, 2018, Defendant Fezatte filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Southern District of Ohio.3 On April 4, 2018, the Court stayed the proceedings in this case and, on June 15, 2018, the bankruptcy court granted Plaintiff relief from that automatic stay.4

On June 20, 2018, the Court granted in part and denied in part Plaintiff’s motion to reconsider and directed the parties to prepare additional briefing on Plaintiff’s punitive damage claims.5 On July 2, 2018, Plaintiff filed a supplemental brief on punitive damages.6 Attached to that brief was an affidavit from Kimberly Ramay, a former coworker of Defendant Fezatte. Defendants moved to strike Ms. Ramay’s affidavit.7 Defendants attached to their motion a competing affidavit from Defendant Fezatte, which “continued to deny fault in this civil proceeding” and denied each allegation in Ms. Ramay’s affidavit. On November 14, 2018, the Court held a hearing on the motion to strike. At the end of the hearing, the Court denied the motion and reopened discovery for the limited purpose of deposing Ms. Ramay, Defendant Fezatte, and any other potential witnesses to the events Ms. Ramay described.8 Five days after the hearing, on November 19, 2018, the McKinley County District Attorney filed a criminal complaint against Defendant Fezatte.9 The complaint charged Defendant Fezatte with two counts: (1) Great Bodily Harm by a Motor Vehicle; and (2) Accident Involving Death or Personal Injuries.

*2 In response to these charges, Defendants moved to stay the proceedings in this case.10 On April 25, 2019, the Court granted Defendants’ request in part and stayed the civil trial until resolution of the criminal case but allowed limited discovery to continue on the punitive damage claims.11 On June 1, 2020, the parties notified the Court that they had completed the limited discovery, that the criminal matter against Defendant Fezatte had concluded, and that Defendants were ready to re-brief their motion for summary judgment on Plaintiff’s punitive damage claims.12 On June 23, 2020, the Court held a status conference and set a briefing schedule.13

In accordance with that schedule, on July 20, 2020, Defendant Werner Enterprises, Inc., filed a PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 154) (Werner Motion). Likewise, on August 10, 2020, Defendant Seth Fezatte filed a PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 157) (Fezatte Motion). The Motions are fully briefed.14 The Court will grant the Werner Motion and will deny the Fezatte Motion for the following reasons.

I. BACKGROUND

A. Defendant Werner’s Hiring, Training, and Supervision of Defendant Fezatte15
Defendant Werner is a national trucking company with a fleet of approximately 7,300 commercial trucks operated by approximately 9,500 commercial truck drivers. Werner Mot., Ex. A at 18:3–7. Prior to employment, Defendant Werner requires that all prospective drivers graduate from a truck driving school and possess a commercial driver’s license (CDL). Id. at 21:1–8, 22:6–15. All prospective drivers must also submit to a drug screening, id. at 22:10–12, 23:8–10, pass a prior employment verification process, id. at 23:5–6, complete a physical performed by a third party, id. at 92:4–5, and attend a two-day orientation, which consists of: (1) pretrip inspection training; (2) computer based training; (3) driver’s hours of service training; (4) hands-on exercises with live Qualcomm units; (5) map reading; (6) truck coupling/uncoupling; (7) Federal Motor Carrier Safety Administration Compliance, Safety, and Accountability enforcement program; (8) accident prevention and injury; and (10) hazard awareness. Id. at 23:8–18.

*3 Additionally, Defendant Werner requires newly licensed drivers like Defendant Fezatte to complete two months of over the road training with one of its professional driver trainers. Id. at 22:13–15. Defendant Werner also requires that all drivers undergo quarterly safety trainings. Id. at 48:23–49:4. Drivers also have access to driver simulation trainings and accident prevention trainings. Id.

Defendant Fezatte was qualified to work for Defendant Werner; he graduated from a truck driving school and possessed a CDL. Id., Ex. B at 10:22–12:2, 15:2–7, 20:2. Defendant Fezatte completed the two-day orientation and a three-month over the road training period with a driver trainer (approximately one month more than the two-month minimum requirement), which amounted to approximately 280 hours of on-duty training. Id. at 25:1–15. Prior to the incident underlying this litigation, Defendant Werner investigated Defendant Fezatte for two possible infractions. In June 2012, Defendant Fezatte was cited for speeding, and Defendant Werner required that he complete speed management training. Id. at 55:15–56:16; Ex. A at 107:11–108:2. In January 2013, Defendant Werner received a complaint that Defendant Fezatte smoked marijuana. Id., Ex. A at 103:14–18. In response, Defendant Werner required that Defendant Fezatte submit to a drug test, which he passed. Id. at 103:14–25; Ex. B at 51:8–13.

B. The Accident16
On November 22, 2013, Plaintiff Derrick Yazzie was walking westbound near mile-marker 18 on Interstate 40 near Gallup, New Mexico, when he was struck by a commercial vehicle owned by Defendant Werner and operated by Defendant Fezatte. Complaint at ¶ 5; Docs. 69 at ¶¶ 1–2; 80 at ¶¶ 3–4. Prior to the collision, on November 21, 2013, Defendant Fezatte had assumed driving responsibilities from his brother Jaron Fezatte around 7:00 p.m. Central Standard Time (CST) outside of Amarillo, Texas, and headed west on Interstate 40. Docs. 69 at ¶¶ 5-6; 80 at ¶ 6. Defendant Fezatte stopped for a thirty-minute mandatory Department of Transportation break seventeen miles east of Gallup, New Mexico, at 2:15 a.m. CST/1:15 a.m. Mountain Standard Time (MST) on November 22, 2013, and resumed driving at approximately 2:50 a.m. CST/1:50 a.m. MST. Docs. 69 at ¶¶ 7, 9; 80 at ¶ 6. Defendant Fezatte testified that as he approached Gallup, New Mexico, it was sleeting and weather conditions were “sub-optimal.” Docs. 69 at ¶ 105; 69-3 at 90:18. Defendant Fezatte further testified that as he was driving westbound on Interstate 40 he felt an impact but, believing he struck a deer, continued to drive. Docs. 69 ¶¶ 3, 21; 69-3 at 95:24-96:6. Defendant Fezatte testified that he pulled over, assessed the damage to the tractor-trailer, and returned to what he believed was the location of the impact to determine whether there was anything in the road. Docs. 69 at ¶¶ 21, 23, 25-26; 69-3 at 96-97, 101-02; 80 at ¶¶ 34-38; 80-4 at 98-101. Finding nothing, he continued westbound on Interstate 40 for approximately 20 miles before he stopped at a rest stop near the New Mexico/Arizona border to contact Werner dispatch to discuss the accident. Werner Mot., Ex. B at 97:22–24.17

*4 Around this time, Ruben Cosgrove was also traveling westbound on Interstate 40 operating another commercial vehicle ahead of Defendant Fezatte in the right lane. Docs. 69 at ¶¶ 16-17; 80 at ¶ 8.18 Mr. Cosgrove saw a male, later identified as Plaintiff, walking backwards on the roadway as though he were hitchhiking. Docs. 69 at ¶¶ 18-19; 80 at ¶ 8. Mr. Cosgrove contacted authorities reporting a pedestrian on the interstate wearing a black jacket, white t-shirt, and jeans. Docs. 69 at ¶¶ 27-28; 69-4 at 21, 26, 31, 38; 69-1; 80 at ¶ 10. In response to this call, Officer Chavo Waylon Chischilly with the Gallup Police Department was dispatched around 2:36 a.m. MST and, after seeing Plaintiff’s shoe in the middle of the roadway, located Plaintiff lying face down in a muddy roadside area. Docs. 69 at ¶¶ 27, 29; 69-4 at 21, 33-34; 80 at ¶ 10.

Officer J. Koon of the Holbrook Police Department was dispatched in response to an Attempt to Locate (ATL) a blue Werner commercial vehicle with a nonoperational front headlight as described to officers by Mr. Cosgrove. Docs. 69 at ¶ 32; 69-6 at 3. Officer Koon stopped Defendant Fezatte. Docs. 69 at ¶ 33; 69-6. Defendant Fezatte was then interviewed in Holbrook, Arizona, by Detective Victor Rodriguez from the Gallup Police Department. Docs. 69 at ¶ 39; 69-7 at 16-17.

After the accident, Defendant Werner required Defendant Fezatte to complete a virtual training assessment. Werner Mot., Ex. B at 27:4–20.19

C. The Ramay Affidavit and Criminal Charges
Defendant Fezatte resigned from Werner in July 2014. Resp. Fezatte Mot., Ex. 3 at 20:9-11. Sometime after, he began working at Aaron’s Rent to Own Furniture, and in January 2018, Kimberly Ramay became his co-worker. Fezatte Mot., Attach. 6 at 26:2–9.20 Defendant Fazette and Ms. Ramay shared the same job duties, including making field visits together. Id. at 26:11–23. On April 3, 2018, Ms. Ramay executed an affidavit which, among other things, alleged that during a field visit with Defendant Fezatte, he stated that “he killed a person … but that it didn’t [sic] matter because it was one less Native American. [Defendant] Fezatte [stated] that he saw the person before he hit him, and that he knew he had hit a person.” Id., Attach. 5 at 1–2. As a result of the affidavit, Defendant was charged in the McKinley County Magistrate Court in Gallup, New Mexico, with Great Bodily Harm by Motor Vehicle and Accident Involving Death or Personal Injuries. Id., Attach. 1. Ultimately, Defendant Fezatte pleaded guilty to a lesser offense of Careless Driving. Id., Attach. 2.21

II. LEGAL STANDARD
*5 A court may grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When applying this standard, the Court examines the factual record and reasonable inferences in the light most favorable to the party opposing summary judgment. Applied Genetics Intl, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “Once the moving party has met its burden, the burden shifts back to the nonmoving party to show that there is a genuine issue of material fact.” Jensen v. Kimble, 1 F.3d 1073, 1077 (10th Cir. 1993) (citing Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). Disputes are genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way,” and they are material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (further citation and internal quotation marks omitted). “A plaintiff ‘cannot avoid summary judgment merely by presenting a scintilla of evidence to support her claim; she must proffer facts such that a reasonable jury could find in her favor.’ ” Milne v. USA Cycling Inc., 575 F.3d 1120, 1130 (10th Cir. 2009) (quoting Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009) (further citation omitted)).

“[I]n a federal diversity action, the district court applies state substantive law—those rights and remedies that bear upon the outcome of the suit—and federal procedural law—the processes or modes for enforcing those substantive rights and remedies.” Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 668 (10th Cir. 2018). Accordingly, the Court will apply the substantive law of New Mexico.

III. ANALYSIS

A. Werner Motion

1. Parties’ Arguments
Defendant Werner contends that a punitive damage award is inappropriate because the undisputed facts demonstrate that it did not possess the requisite mental state meriting punishment and deterrence. Werner Mot. at 1. Specifically, Defendant Werner argues that Defendant Fezatte was not employed in a managerial capacity nor did it ratify his conduct. Id. at 8–10. Defendant Werner also maintains that nothing was infirm about the cumulative conduct of it or its employees such that a culpable mental state could be inferred. Id. at 11–13.

For his part, Plaintiff concedes that Defendant Fezatte was not acting in a managerial capacity and that Defendant Werner did not ratify Defendant Fezatte’s conduct. See Resp. Werner Mot. at 1, 17–18. Instead, Plaintiff asserts only that Defendant Werner’s cumulative actions, including that of Defendant Fezatte, establish a culpable mental state sufficient to impose punitive damages. Id. at 17–23.

2. Defendant Werner did not Act with a Culpable State of Mind
New Mexico has a “general rule that punitive damages are not imposed on an employer for the acts of an employee as a matter of simple respondeat superior.” Grassie v. Roswell Hosp. Corp., 258 P.3d 1075, 1086 (N.M. 2011). “Rather, there must be proof in some form of the employer’s own culpable state of mind and conduct.” Id. The New Mexico Supreme Court has explained that
[a] corporation may be held liable for punitive damages for the misconduct of its employees if: (1) corporate employees possessing managerial capacity engage in conduct warranting punitive damages; (2) the corporation authorizes, ratifies, or participates in conduct that warrants punitive damages; or (3) under certain circumstances, the cumulative effects of the conduct of corporate employees demonstrate a culpable mental state warranting punitive damages.
Carrillo v. Copper Sols. & Servs., LLC, 2020 WL 1845119, at *10 (N.M. Ct. App. Mar. 10, 2020) (unpublished) (quoting Chavarria v. Fleetwood Retail Corp., 143 P.3d 717, 725 (N.M. 2006)).

Given that Plaintiff concedes that the first two categories do not apply, the Court will focus on the third, whether the cumulative effects of the conduct of Defendant Werner’s employees demonstrate that it acted with a culpable mental state. Unfortunately for Plaintiff, however, two New Mexico cases (and a Kentucky case) illustrate that no material fact issues exist regarding corporate culpability; therefore, Defendant Werner is entitled to judgment as a matter of law on Plaintiff’s punitive damage claim against it.

*6 In Clay v. Ferrellgas, Inc., 881 P.2d 11, 14 (N.M. 1994), the New Mexico Supreme Court adopted the test that allows a court to examine the cumulative conduct of employees to determine a corporate entity’s mental state. The New Mexico Supreme Court heavily relied on a decision issued by the Supreme Court of Kentucky, which awarded punitive damages against a gas company after a house exploded due to a gas leak. Id. at 15 (discussing Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 389 (Ky. 1985)). In Horton, the plaintiff presented evidence that a gas company’s employees failed to (1) inspect a house after being notified that there was an odor of gas, (2) turn off the gas line, and (3) evacuate the house’s occupants. 690 S.W.2d at 386. Moreover, evidence showed that prior to the explosion the gas company failed to establish an appropriate emergency plan regarding gas leaks—even after Kentucky’s chief utility inspector urged it to do so. Id. at 387. The Horton court determined that the negligence of employees, coupled with the fact that the gas company ignored repeated suggestions to revise its investigatory procedures, constituted conduct of corporate wantonness or recklessness. Id. at 388. The Horton court stressed, however, that it was not finding potential liability for punitive damages based on a single, isolated, unauthorized, and unexpected act of negligence by an employee. Id. at 390. In such a circumstance, a corporate entity could not be punished vicariously. Id.

With this guidance, the New Mexico Supreme Court determined that the “acts of the employees should be viewed cumulatively to determine the mental state of a corporation.” Ferrellgas, Inc., 881 P.2d at 16. In Ferrellgas, a vehicle converted by Ferrellgas to run on propane exploded when gas leaked from a faulty valve located inside the trunk. Id. at 13. The evidence, which supported an award for punitive damages, included: a corporate policy (or lack thereof) that allowed employees to be ignorant of the acts or omissions of other employees despite the fact that in all probability this ignorance would result in severe harm; Ferrellgas allowed its employees to violate state law by improperly installing equipment; and Ferrellgas authorized or participated in an employee’s continuing failure to file proper inspection forms. Id. at 16–17 (quotations omitted). This evidence demonstrated that Ferrellgas had a “cavalier attitude toward safety regulation.” Id. at 17. Thus, the New Mexico Supreme Court concluded that “the high risk of harm that accompanies the handling of propane gas, the negligence of [two employees] and regular violation of safety regulations by Ferrellgas amounts to corporate indifference and reckless conduct.” Id.

In a more recent and less explosive case, the New Mexico Court of Appeals also upheld an award of punitive damages under the third category. In Carrillo v. Copper Sols. & Servs., LLC, 2020 WL 1845119 (N.M. Ct. App. Mar. 10, 2020), a Copper Solutions employee driving a semi-truck with a flat-bed trailer rear-ended a pickup truck causing it to cross over the median, which in turn, caused a head-on collision with the plaintiff, who was driving a semi-truck in the opposite direction. 2020 WL 1845119 at *1. The evidence demonstrated that Copper Solutions failed to comply with its internal checklist of required qualifications for new drivers. Id. at *10. This resulted in Copper Solutions failing to obtain the employee’s driving records and safety performance history from his previous employers. Id. In addition, despite the employee having limited proficiency in English, Copper Solutions nonetheless conducted its entry level training and administered driving proficiency tests in English. Id. The evidence also showed that Copper Solutions’ office manager and secretary failed to adequately keep the employee files and/or confirm that information was properly contained in the employee files and failed to maintain the company’s Department of Transportation information. Id. at *11. The court concluded that, when considered in conjunction with the danger presented by operating a commercial vehicle, the evidence provided a sufficient basis for the jury to conclude that Copper Solutions’ conduct with regard to its employee’s training and supervision showed a willful and/or reckless disregard for its managerial responsibilities. Id.

*7 Unlike Ferrellgas, Horton, and Copper Solutions, Plaintiff’s evidence falls short of the quantum necessary to infer corporate culpability. Plaintiff simply states that “[a] jury may also conclude from the evidence Defendant Werner’s subsequent failure to take action against Defendant Fezatte, and corporate indifference to Fezatte’s conduct and its failure to challenge his transparently false statements as to what actually took place” is sufficient for a punitive damage award. Resp. Fezatte Mot. 21. However, these bare accusations are completely unsupported the evidence. To be sure, in contrast to Ferrellgas, Horton, and Copper Solutions, the undisputed facts show that Defendant Werner adequately investigated and trained Defendant Fezatte before allowing him to drive for the company. See Werner Mot., Ex. A, passim. The evidence also shows that Defendant Werner communicated with Defendant Fezatte after the accident, id., Ex. B at 97:22–24, and required him to attend a training as a result of the accident. Id. at 27:4–20. And unlike Ferrellgas, Horton, and Copper Solutions, the evidence does not show that Defendant Werner failed to follow its own policies or procedures. Nor does it establish that any acts or omissions by Defendant Werner contributed to the accident. Plaintiff’s accusation that Defendant Werner failed to investigate the accident or challenge Defendant Fezatte’s testimony is unsupported by the record and irrelevant to the inquiry. Finally, even assuming Defendant Fezatte’s conduct was malicious, there is no “cumulative conduct” of any other employees—only the conduct of Defendant Fezatte on the day of the accident.

Simply put, Plaintiff fails to create a fact issue that demonstrates that Defendant Werner had a “cavalier attitude toward safety regulation.” Holding otherwise would allow for the imposition of punitive damages against a corporate entity based on a single, isolated, unauthorized, and unexpected act by an employee. The Court will grant Defendant Werner’s Motion.

B. Fezatte Motion

1. Parties’ Arguments
Defendant Fezatte argues that the material facts surrounding the November 22, 2013, accident have remained unchanged, irrespective of the Ramay affidavit and deposition. Fezatte Mot. at 7–11. To support this proposition, Defendant Fezatte still relies on his own deposition, the deposition of Officer Chischilly, and the deposition of Detective Rodriguez. Id. Additionally, Defendant Fezatte relies on new evidence that stems from the resolution of the intervening criminal case. Id. at 9. Defendant believes that this new evidence demonstrates an absence of culpability because during the plea hearing the prosecutor (1) admitted that the State would have evidentiary issues proving the original charges at trial (Great Bodily Harm by Motor Vehicle and Accident Involving Death or Personal Injuries) and (2) failed to object to the factual basis that supported his guilty plea to the lesser charge of Careless Driving. Id. Second, Defendant Fezatte maintains that the lesser charge of Careless Driving demonstrates that, at worst, he “did not act with slight care.” Id. Lastly, Defendant Fezatte argues that, because Detective Rodriguez assessed his testimony as credible during the initial investigation of the November 22, 2013, accident, i.e., that Defendant Fezatte believed that he hit a deer, the Ramay evidence cannot create a fact issue. Id. at 11.

Conversely, Plaintiff argues that the Ramay evidence creates a fact issue that precludes summary judgment on punitive damages. Resp. Fezatte Mot. at 19–21. Plaintiff relies on the Ramay affidavit and deposition to demonstrate that Defendant Fazette “deliberately and/or recklessly struck Plaintiff,” “provided false testimony—and continues to provide false testimony,” and “willfully, wantonly, and recklessly left the scene of the accident.” Id. at 22–23.

2. There is a genuine issue of material fact regarding Defendant Fezatte’s mental state
Under New Mexico law, negligent conduct alone is insufficient to support a finding of punitive damages. Rather, “[t]o be liable for punitive damages, a wrongdoer must have some culpable mental state, and the wrongdoer’s conduct must rise to a willful, wanton, malicious reckless, oppressive, or fraudulent level[.]” Ferrellgas, Inc., 881 P.2d at 14 (internal citations omitted); see also NMRA, Civ. UJI 13-1827 (instructing that punitive damages may be awarded against the tortfeasor if that person’s conduct “was malicious, willful, reckless, wanton, fraudulent or in bad faith”). The New Mexico Uniform Jury Instruction (UJI) 13-1827 further defines these terms:
*8 Malicious conduct is the intentional doing of a wrongful act with the knowledge that the act was wrongful. Willful conduct is the intentional doing of an act with the knowledge that harm may result. Reckless conduct is the intentional doing of an act with utter indifference to the consequences. When there is a high risk of danger, conduct that breaches the duty of care is more likely to demonstrate recklessness. Wanton conduct is the doing of an act with utter indifference to or conscious disregard for a person’s safety.

In the Court’s February 14, 2018, Memorandum Order and Opinion it ruled in favor of Defendant Fezatte because Plaintiff failed to “cite[ ] to any deposition testimony or other evidence to raise an issue regarding whether Defendant Fezatte’s conduct was ‘malicious, willful, reckless, wanton, fraudulent, or in bad faith.’ ” Doc. 102 (quoting NMRA, Civ. UJI 13–1827). However, because the punitive damages argument was not adequately addressed by the parties, the Court granted Plaintiff’s Motion to Reconsider, which essentially was a mislabeled request to file a surreply. See Doc. 124 (“If requested, the Court would have given Plaintiff a chance to file a surreply and address the argument raised in the MSJ Reply brief. Although Plaintiff failed to ask for leave to file a surreply, but instead filed the Motion to Reconsider, the Court will allow Plaintiff a chance to brief the issue.”).

Now that the argument is fully developed, it is clear that Plaintiff does proffer sufficient evidence to create a fact issue regarding Defendant Fezatte’s culpability. At bottom, Defendant Fezatte believes the Ramay affidavit and testimony cannot create a fact issue because it is inconsistent with the record. For this proposition, Defendant Fezatte again relies on his own deposition, the deposition of Officer Chischilly, the deposition of Detective Rodriguez,22 and the transcript from the sentencing/plea hearing. Defendant Fezatte believes that this evidence establishes (1) that he believed that he hit a deer rather than a person, Mot. at 7 (citing Doc. 157–3 (Ex. 3)), and (2) that he did not do so intentionally or purposefully. Id. at 8–9. (citing Ex. 7).

Unfortunately for Defendant Fezatte, it is the inconsistencies created by the Ramay affidavit and testimony that preclude summary judgment. For an award of punitive damages Defendant Fezatte’s conduct must rise to a willful, wanton, malicious, reckless, oppressive, or fraudulent level. He proffers evidence that shows that he believed that he hit a deer, therefore he possessed no ill intent. The Ramay affidavit alleges that Defendant Fezatte “saw [Plaintiff] before he hit him, and that he knew he had hit a person.” Resp. Fezatte Mot., Ex. 4–A. The Ramay deposition clarifies that Defendant Fezatte “swerved over and hit” Plaintiff and that Defendant Fezatte “told [Ramay] that he’d [sic] done it on purpose.” Id., Ex. 4. These allegations create a fact issue on Defendant Fezatte’s culpability, i.e., whether he hit Plaintiff with a culpable mental state or whether it was just an accident not rising to a willful, wanton, malicious, reckless, oppressive, or fraudulent level.23 To finish, Defendant Fezatte’s contentions that the Ramay evidence cannot override the credibility findings of Detective Rodriguez and that the criminal matter establishes that Defendant Fezatte acted with an innocent mental state are misplaced. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge”).

IV. CONCLUSION
*9 Plaintiff has failed to create a genuine issue of material fact as to Defendant Werner’s culpability for punitive damages. Holding otherwise would amount to imposing punitive damages on a corporate entity under a simple respondeat superior theory. New Mexico law requires more. Consequently, Plaintiff’s claim for punitive damages against Defendant Werner cannot proceed as a matter of law. But the same is not true for Plaintiff’s claim against Defendant Fezatte. The Ramay affidavit and her deposition testimony create a fact dispute as to whether Defendant Fezatte acted willfully, wantonly, maliciously, or recklessly when he hit Plaintiff with his truck. Thus, the Court will deny Defendant Fezatte’s Motion.

IT IS THEREFORE ORDERED THAT Defendant Werner’s PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 154) is GRANTED and Defendant Fezatte’s PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 157) is DENIED.

All Citations
Slip Copy, 2020 WL 5977929

Footnotes

1
See SUBJECT TO ANY AND ALL FEDERAL RULE OF CIVIL PROCEDURE 12(B) DEFENSES, SETH FEZATTE AND WERNER ENTERPRISES, INC.’S NOTICE OF REMOVAL (Doc. 1). On June 21, 2016, Plaintiff amended the Complaint. See AMENDED COMPLAINT (Doc. 7).

2
See PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S PUNITIVE DAMAGES CLAIM (DOC 102) (Doc. 108); see also SETH FEZATTE AND WERNER ENTERPRISES, INC.’S RESPONSE TO PLAINTIFF’S OPPOSED MOTION TO RECONSIDER THE COURT’S ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 115); PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S PUNITIVE DAMAGES CLAIM (DOC. 102) (Doc. 118).

3
See NOTICE OF SUGGESTION OF BANKRUPTCY (Doc. 116).

4
See ORDER GRANTING DERRICK YAZZIE AND WERNER ENTERPRISES, INC’S JOINT MOTION TO STAY CASE PENDING RELIEF FROM BANKRUPTCY COURT (Doc. 122); THE PARTIES’ JOINT NOTICE OF ORDER GRANTING DERRICK YAZZIE’S MOTION FOR RELIEF FROM AUTOMATIC STAY UNDER 11 USC § 362 (Doc. 125).

5
See ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO RECONSIDER (Doc. 124).

6
See PLAINTIFF’S SUPPLEMENTAL BRIEF ON WHETHER MATERIAL ISSUES OF FACT EXIST AS TO DEFENDANTS’ CONDUCT AND MENTAL STATE TO SUPPORT PLAINTIFF’S PUNITIVE DAMAGES CLAIM (Doc. 127).

7
See SETH FEZATTE AND WERNER ENTERPRISES, INC.’S MOTION TO STRIKE KIMBERLY RAMAY’S AFFIDAVIT (Doc. 129).

8
See ORDER DENYING MOTION TO STRIKE (Doc. 144).

9
See CRIMINAL COMPLAINT (Doc 139-3).

10
See SETH FEZATTE AND WERNER ENTERPRISES, INC.’S OPPOSED MOTION TO STAY ALL CIVIL PROCEEDINGS PENDING ADJUDICATION OF FELONY CRIMINAL CHARGES AGAINST SETH FEZATTE (Doc. 139).

11
See MEMORANDUM ORDER AND OPINION (Doc. 145).

12
See AMENDED REPORT OF CASE STATUS BY COUNSEL OF RECORD IN THE REFERENCED MATTER (Doc. 151).

13
See Clerk’s Minutes for Status conference held on 6/23/2020 (Doc. 153).

14
See PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT WERNER ENTERPRISES, INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM (DOC.154) (Doc. 156) (Werner Response); WERNER ENTERPRISES, INC.’S REPLY TO PLAINTIFF’S RESPONSE TO WERNER ENTERPRISES, INC.’S PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM AND RESPONSE TO PLAINTIFF’S UNDISPUTED MATERIAL FACTS (Doc.158) (Werner Reply); see also PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT SETH FEZATTE’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM (DOC.157) (Doc. 160) (Fezatte Response); SETH FEZATTE’S REPLY TO PLAINTIFF’S RESPONSE TO SETH FEZATTE’S PARTIAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S PUNITIVE DAMAGES CLAIM AND RESPONSE TO PLAINTIFF’S UNDISPUTED MATERIAL FACTS (Doc. 161) (Fezatte Reply).

15
Under Rule 56 of the Federal Rules of Civil Procedure, a party attempting to controvert a fact must do so by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 15(c)(1)(A). This District’s local rules also require that, in a memorandum opposing summary judgment, “[e]ach fact in dispute must be numbered, must refer with particularity by paragraph, to those portions of the record upon which the non-movant relies and must state the number of the movant’s fact that is disputed.” D.N.M.LR-Civ. 56(b). Plaintiff disputes Defendant Werner’s facts only by stating that they do not “establish the absence of a genuine dispute” and by citing to Federal Rule of Civil Procedure 56(c)(1)(B). As a result, the Court deems Defendant Werner’s facts undisputed.

16
Several relevant, undisputed facts are set forth in this Court’s MEMORANDUM OPINION AND ORDER (Doc. 102), which granted Defendants’ initial request for summary judgment on Plaintiff’s punitive damages claim. In accordance with Federal Rule of Civil Procedure 10(c), the parties have incorporated their undisputed fact sections from the briefing on Defendants’ initial motion for summary judgment (Doc. 69). See Werner Reply (“Werner incorporates Mr. Fezatte’s undisputed facts in Mr. Fezatte’s [Motion]”); Fezatte Motion (“Mr. Fezatte incorporates the undisputed fact section included in his … September 11, 2017, [motion]”); Resp. Fezatte Mot. (“Plaintiff also incorporates by reference his response to Defendants’ statement of facts”). The Court recites those findings here.

17
This fact did not appear in the Court’s original findings.

18
Defendant Fezatte objects to Plaintiff’s reliance on the Gallup Police Report under Federal Rule of Evidence 702 and 801(c). See Fezatte Mot. at 2. The Court is puzzled by this objection. Not only did Defendants specifically rely on the Gallup Police Report in their initial motion for summary judgment, see Doc. 69 at ¶¶ 1, 16, 18, 27, 31, 101, Defendants incorporate into the instant motions the undisputed material fact section from Doc. 69. Thus, the Court deems Defendant Fezatte to have WAIVED his objection to the Gallup Police Report.

19
This fact did not appear in the Court’s original findings.

20
Defendant Fezatte commenced numbering the exhibits attached to the Fezatte Motion at 15, which continues the numbering convention Defendants utilized in their initial motion for summary judgment (Doc. 69). Under this convention, Attachment 1 correlates to exhibit 15. However, Defendant Werner does not employ this convention in the Werner Motion nor does Plaintiff in his responses. Therefore, for clarity the Court will cite to the evidence appended to the Fezatte Motion as attachments beginning with attachment 1 rather than exhibits beginning with exhibit 15.

21
Plaintiff objects under Federal Rule of Evidence 401 and 403 to all facts surrounding the criminal case. Plaintiff argues that, “because the legal and evidentiary standards in determining whether to seek and prosecute felony criminal charges against him for his conduct arising out of the incident are not the same as the legal and evidentiary standards presented here and so is not relevant to the issues the jury will decide in this case, or any probative value is outweighed by the dangers of misleading the jury or confusing the issues that are for the jury to decide in this case.” Resp. Fezatte Mot. at 4. The Court disagrees. While the standards are indeed different, all facts relating to Defendant Fezatte’s mental state regarding the November 22, 2013, accident are relevant to the punitive damages inquiry, and outweigh any prejudicial effect the evidence might have on the jury. Therefore, the Court will OVERRULE Plaintiff’s objection.

22
Among other things, Defendant Fezatte argues that Detective Rodriguez testified that Defendant Fezatte did not act intentionally or purposefully. Fezatte Mot. at 8 (citing Doc. 69–7 at 29:17–21 (Rodriguez deposition taken on May 16, 2017)). Interestingly, Detective Rodriguez was also the affiant for the Statement of Probable Cause filed on November 19, 2018, that served as the basis for the criminal complaint, which he filed that same day. See Docs. 157–1 (criminal complaint), 4 (statement of probable cause) (“I believe probable cause exists to charge Defendant Seth E. Fezatte with the crimes of great bodily harm by motor vehicle”).

23
Because the Ramay affidavit and deposition testimony create a fact issue on punitive damages, the Court need not address other implicit arguments made by Plaintiff, including that Defendant Fezatte was culpable because driving a semi-truck is inherently dangerous, that he was driving during inclement weather, or that he fled the scene.

2020 WL 5757013
United States Court of Appeals, Ninth Circuit.
Allen MILLER, Plaintiff-Appellant,
v.
C.H. ROBINSON WORLDWIDE, INC.; Ronel R. Singh; Rheas Trans, Inc.; Kuwar Singh, dba RT Service, Defendants-Appellees,
and
Costco Wholesale Corporation; Lotus Foods, Inc.; Pride Industries, Defendants.
No. 19-15981
|
Argued and Submitted July 8, 2020 Seattle, Washington
|
Filed September 28, 2020
Synopsis
Background: Motorist who sustained serious injuries in motor vehicle accident when he was struck by semi-tractor trailer sued, among others, freight broker that arranged for trailer to transport goods for retailer, alleging that broker negligently selected an unsafe motor carrier. Broker moved for judgment on the pleadings, asserting that motorist’s common-law negligence claim was preempted under the Federal Aviation Administration Authorization Act (FAAAA). The United States District Court for the District of Nevada, Miranda Du, Chief Judge, 2018 WL 5981840, granted the motion, and motorist appealed.

Holdings: The Court of Appeals, Nguyen, Circuit Judge, held that:

[1] as a matter of first impression for a federal circuit court, motorist’s claim was “related to” broker’s services, within meaning of the FAAAA’s preemption provision;

[2] the phrase “safety regulatory authority of a State,” as used in the FAAAA’s preemption exception for “the safety regulatory authority of a State with respect to motor vehicles,” encompasses common-law tort claims; and

[3] negligence claims against brokers that stem from motor vehicle accidents are “with respect to motor vehicles” and so fall within the safety exception.

Reversed and remanded.

Fernandez, Circuit Judge, filed opinion concurring in part and dissenting in part.

West Headnotes (26)

[1]
Federal Courts Preemption in general

Court of Appeals reviews questions of preemption de novo.

[2]
Federal Courts Judgment on the pleadings

Court of Appeals reviews de novo an order granting a motion for judgment on the pleadings. Fed. R. Civ. P. 12(c).

[3]
States Congressional intent

In considering the preemptive scope of a statute, congressional intent is the ultimate touchstone.

[4]
States Congressional intent

In determining the preemptive scope of a statute, courts primarily discern Congress’s intent from the language of the preemption statute and the statutory framework surrounding it, but courts may also consult the structure and purpose of the statute as a whole.

[5]
States State police power

Scope of a statute’s preemption clause is tempered by the presumption that Congress does not intend to supplant state law, particularly in areas of traditional state regulation.

[6]
States State police power

In determining the preemptive scope of a statute, courts presume that Congress has not preempted the historic police powers of the states unless that was the clear and manifest purpose of Congress.

[7]
Automobiles Concurrent and conflicting regulations
Brokers Actions for Negligence or Wrongful Acts of Broker
States Motor vehicles;  highways

Phrase “related to,” as used in the Federal Aviation Administration Authorization Act (FAAAA) section preempting state laws related to price, route, or service of any broker, embraces state laws having a connection with or reference to rates, routes, or services, whether directly or indirectly. 49 U.S.C.A. § 14501(c).

[8]
Automobiles Concurrent and conflicting regulations
Brokers Actions for Negligence or Wrongful Acts of Broker
States Motor vehicles;  highways

To determine whether a state law has a “connection with” rates, routes, or services, for purposes of the Federal Aviation Administration Authorization Act (FAAAA) section preempting state laws related to price, route, or service of any broker, courts examine the actual or likely effect of the law. 49 U.S.C.A. § 14501(c).

[9]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

Federal Aviation Administration Authorization Act (FAAAA) preemption resulting from “reference to” prices, routes, or services occurs when a state’s law acts immediately and exclusively upon prices, routes, or services, or where the existence of a price, route or service is essential to the law’s operation. 49 U.S.C.A. § 14501(c).

[10]
Automobiles Concurrent and conflicting regulations
Brokers Actions for Negligence or Wrongful Acts of Broker
States Motor vehicles;  highways

Under the Federal Aviation Administration Authorization Act (FAAAA) section preempting state laws related to price, route, or service of any motor carrier or broker, if, for example, a state law mandates that motor carriers or brokers provide a particular service to customers, or forbids them to serve certain potential customers, the effect is clear, and the provision is preempted. 49 U.S.C.A. § 14501(c).

[11]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

State laws that affect prices, routes, or services in only a tenuous, remote, or peripheral manner, with no significant impact on Congress’s deregulatory objectives, are not preempted under the Federal Aviation Administration Authorization Act (FAAAA). 49 U.S.C.A. § 14501(c).

[12]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

In passing the Federal Aviation Administration Authorization Act (FAAAA), which is modeled on the Airline Deregulation Act of 1978 (ADA), Congress sought to achieve two broad objectives: first, it sought to eliminate the competitive advantage air carriers enjoyed relative to motor carriers, and second, it sought to address the inefficiencies, lack of innovation, and lack of competition caused by non-uniform regulations of motor carriers, with Congress particularly concerned about states enacting barriers to entry, tariffs, price regulations, and laws governing the types of commodities that a carrier could transport. 49 U.S.C.A. §§ 14501 et seq., 41713(b)(1).

[13]
Automobiles Concurrent and conflicting regulations
Labor and Employment Preemption
States Labor and Employment
States Motor vehicles;  highways

Under the Federal Aviation Administration Authorization Act (FAAAA) section preempting state laws related to price, route, or service of any motor carrier, what matters is not solely that the law is generally applicable, but where in the chain of a motor carrier’s business it is acting to compel a certain result, for example, consumer or workforce, and what result it is compelling, such as a certain wage, non-discrimination, a specific system of delivery, or a specific person to perform the delivery. 49 U.S.C.A. § 14501(c).

[14]
Automobiles Concurrent and conflicting regulations
Brokers Actions for Negligence or Wrongful Acts of Broker
States Motor vehicles;  highways

Claim of motorist who sustained serious injuries in motor vehicle accident when he was struck by semi-tractor trailer, which alleged that freight broker negligently selected an unsafe motor carrier, was “related to” broker’s services, within meaning of the Federal Aviation Administration Authorization Act (FAAAA) section preempting state laws related to price, route, or service of any broker; it was undisputed that selection of motor carriers was one of the core services of brokers, motorist’s negligence claim, which sought to interfere at the point at which broker “arranged for” transportation by motor carrier, was directly “connected with” broker services, even though it did not involve a state law that “bound” broker to specific prices, routes, or services, and motor-carrier selection was the type of “public utility” service that fell squarely within the scope of the FAAAA. 49 U.S.C.A. §§ 13102(2), 14501(c); 49 C.F.R. § 371.2.

[15]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

Because the Federal Aviation Administration Authorization Act (FAAAA) is modeled on the Airline Deregulation Act of 1978 (ADA), ADA preemption cases may be consulted to analyze FAAAA preemption. 49 U.S.C.A. §§ 14501 et seq., 41713(b)(1).

[16]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

Just as a claim that seeks reinstatement of frequent-flyer benefits has a forbidden “connection with” air carrier services for purposes of preemption under the Airline Deregulation Act of 1978 (ADA), a claim that imposes an obligation on freight brokers at the point at which they arrange for transportation by motor carrier has a “connection with” broker services for purposes of Federal Aviation Administration Authorization Act (FAAAA) preemption. 49 U.S.C.A. §§ 14501 et seq., 41713(b)(1).

[17]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

There is no question that common-law claims are within the scope of the preemption clause of the Federal Aviation Administration Authorization Act (FAAAA). 49 U.S.C.A. § 14501(c).

[18]
Negligence Ordinary care

While a negligence claim demands that an individual or entity exercise ordinary care, it does not require that this standard of care be satisfied in any particular manner.

[19]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

Phrase “safety regulatory authority of a State,” as used in the Federal Aviation Administration Authorization Act’s (FAAAA) preemption exception for “the safety regulatory authority of a State with respect to motor vehicles,” is interpreted broadly to encompass common-law tort claims; it is not construed narrowly to cover only legislative and regulatory enactments. 49 U.S.C.A. § 14501(c).

[20]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

In passing the Federal Aviation Administration Authorization Act (FAAAA), Congress was primarily concerned with the states regulating economic aspects of the trucking industry by, for example, enacting tariffs, price regulations, and other similar laws. 49 U.S.C.A. § 14501 et seq.

[21]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

Congress’s “clear purpose” in enacting the Federal Aviation Administration Authorization Act’s (FAAAA) preemption exception for “the safety regulatory authority of a State with respect to motor vehicles” was to ensure that its preemption of states’ economic authority over that industry not restrict the states’ existing power over “safety.” 49 U.S.C.A. § 14501(c)(2)(A).

[22]
States Police power

States’ power to protect the health and safety of their citizens includes the ability to regulate safety through common-law tort claims.

[23]
States Congressional intent

When the text of a preemption clause is susceptible of more than one plausible reading, courts ordinarily accept the reading that disfavors preemption.

[24]
Automobiles Concurrent and conflicting regulations
States Carriers;  railroads
States Motor vehicles;  highways

Negligence claims against freight brokers that arise out of motor vehicle accidents are “with respect to motor vehicles,” within the meaning of the Federal Aviation Administration Authorization Act’s (FAAAA) preemption exception for “the safety regulatory authority of a State with respect to motor vehicles”; although such claims do not directly regulate motor vehicles, they promote safety on the road, and so are excepted from preemption. 49 U.S.C.A. § 14501(c)(2)(A).

[25]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

Federal Aviation Administration Authorization Act’s (FAAAA) preemption exception for “the safety regulatory authority of a State with respect to motor vehicles” exempts from preemption those safety regulations that have a connection with motor vehicles, whether directly or indirectly. 49 U.S.C.A. § 14501(c)(2)(A).

[26]
Automobiles Concurrent and conflicting regulations
States Motor vehicles;  highways

Regulations that are “genuinely responsive” to the safety of other vehicles and individuals involved in the towing process may be exempted from preemption under the Federal Aviation Administration Authorization Act’s (FAAAA) safety exception. 49 U.S.C.A. § 14501(c)(2)(A).

Attorneys and Law Firms
Jeffery I. Ehrlich (argued), The Ehrlich Law Firm, Claremont, California; Matthew L. Sharp, Matthew L. Sharp Ltd., Reno, Nevada; Michael Jay Leizerman and Rena Mara Leizerman, Leizerman & Associates, Toledo, Ohio; for Plaintiff-Appellant.
Daniel F. Polsenberg (argued) and Abraham G. Smith, Lewis Roca Rothgerber Christie LLP, Las Vegas, Nevada; Michael E. Sullivan, Michael A. Burke, and Therese M. Shanks, Robison Sharp Sullivan & Brust, Reno, Nevada; for Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada, Miranda M. Du, Chief District Judge, Presiding, D.C. No. 3:17-cv-00408-MMD-WGC
Before: Ferdinand F. Fernandez and Jacqueline H. Nguyen, Circuit Judges, and Susan R. Bolton,* District Judge.

Partial Concurrence and Partial Dissent by Judge Fernandez

OPINION
NGUYEN, Circuit Judge:
Allen Miller (“Miller”) suffered serious injuries when he was struck by a semi-tractor trailer while driving near Elko, Nevada. Miller sued C.H. Robinson Worldwide, Inc. (“C.H. Robinson”), the freight broker that arranged for the trailer to transport goods for Costco Wholesale, Inc. (“Costco”). Miller alleges that C.H. Robinson negligently selected an unsafe motor carrier.

The Federal Aviation Administration Authorization Act of 1994 (the “FAAAA”) preempts state laws that are “related to a price, route, or service of any … broker,” unless one of the FAAAA’s exceptions applies. The district court found Miller’s claim preempted under the FAAAA, reasoning that it is “related to” C.H. Robinson’s services and does not fall within the exception for “the safety regulatory authority of a State with respect to motor vehicles.”

We agree with the district court that Miller’s claim is “related to” C.H. Robinson’s services. Brokers arrange for transportation by motor carrier, and Miller alleges that C.H. Robinson was negligent in performing that service. But we hold that the district court erred in holding that the safety exception does not apply. In enacting that exception, Congress intended to preserve the States’ broad power over safety, a power that includes the ability to regulate conduct not only through legislative and administrative enactments, but also though common-law damages awards. Miller’s claim also has the requisite “connection with” motor vehicles because it arises out of a motor vehicle accident. We therefore reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND
*2 C.H. Robinson is a company that is “regularly engaged in the business of shipping, brokering, and logistics.” C.H. Robinson selected Kuwar Singh d/b/a RT Service (“RT Service”) and/or Rheas Trans, Inc. (“Rheas Trans”) to transport Costco’s shipment. RT Service and Rheas Trans are federally licensed motor carriers. The driver of the semi-tractor trailer, Ronel Singh, was employed by RT Service and/or Rheas Trans at the time of the collision.

Singh lost control of the trailer while driving in icy conditions on I-80 near Elko, Nevada. The trailer crossed over the median into oncoming traffic and collided with Miller’s vehicle, and Miller “became lodged and pinned” under the trailer. Miller suffered extensive injuries in the collision, and he is now quadriplegic.

In June 2017, Miller sued, among others, C.H. Robinson, RT Service, Rheas Trans, Singh, and Costco.1 Thereafter, Miller filed an amended complaint. Relevant here, the amended complaint alleges that C.H. Robinson breached its “duty to select a competent contractor to transport” Costco’s load “by retaining incompetent, unfit or inexperienced contractors or sub-haulers to arrange and/or take th[e] load.” It alleges that C.H. Robinson “knew or should have known” of RT Service’s and Rheas Trans’s “incompetence” because
[T]here were red flags … including that [RT Service] and/or Rheas Trans have a history of safety violations; over 40% of their trucks have been deemed illegal to be on the road when stopped for random inspections; they have been cited numerous times for hours of service violations and false log books; and their percentage of out of service violations is twice that of the national average.

In July 2018, C.H. Robinson moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), arguing that the FAAAA preempts Miller’s negligence claim. The district court granted the motion, concluding that the claim “sets out to reshape the level of service a broker must provide in selecting a motor carrier to transport property.” For instance, “to avoid negligence liability, a broker would consistently need to inspect each motor carrier’s background,” and “such additional inspection would result in state law being used to, at least indirectly, regulate the provision of broker services by creating a standard of best practices.” The district court went on to hold that Miller’s claim does not fall within the exception for “the safety regulatory authority of a State with respect to motor vehicles.” See 49 U.S.C. § 14501(c)(2)(A). The court reasoned that this exception does not “permit[ ] a private right of action—allowing for Miller to essentially do the state’s work and enforce the state’s police power.” The court also found significant the fact the exception “is silent regarding broker services.”

Thereafter, Miller settled with the remaining defendants. The court entered judgment, and this appeal timely followed.

II. JURISDICTION AND STANDARDS OF REVIEW
[1] [2]The district court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review questions of preemption de novo. Cal. Trucking Ass’n v. Su, 903 F.3d 953, 958 (9th Cir. 2018). We also review de novo an order granting a Rule 12(c) motion for judgment on the pleadings. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

III. DISCUSSION

A. The “Related to” Test for FAAAA Preemption
*3 [3] [4] [5] [6]“In considering the preemptive scope of a statute, congressional intent ‘is the ultimate touchstone.’ ” Dilts v. Penske Logistics, LLC, 769 F.3d 637, 642 (9th Cir. 2014) (quoting Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir. 2007)). We primarily discern Congress’s intent “from the language of the pre-emption statute and the statutory framework surrounding it,” but we may also consult “the structure and purpose of the statute as a whole.” Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 486, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). The scope of a preemption clause is also tempered by “the presumption that Congress does not intend to supplant state law,” particularly in areas of traditional state regulation. Id. at 642–43. We therefore presume that Congress has not preempted the “historic police powers of the States … unless that was the clear and manifest purpose of Congress.” Cal. Tow Truck Ass’n v. City & County of San Francisco, 807 F.3d 1008, 1019 (9th Cir. 2015) (quoting City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 438, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002)).

The FAAAA provides, in relevant part:
(1) General rule.–Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier …, broker, or freight forwarder with respect to the transportation of property
(2) Matters not covered.–Paragraph (1)–(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles ….
49 U.S.C. § 14501(c).

[7] [8] [9] [10] [11]The phrase “related to” in the FAAAA “embraces state laws ‘having a connection with or reference to’ … ‘rates, routes, or services,’ whether directly or indirectly.” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260, 133 S.Ct. 1769, 185 L.Ed.2d 909 (2013) (quoting Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 370, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008)). To determine whether a state law has a “connection with” rates, routes, or services, we “examine the actual or likely effect” of the law.2 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 660 F.3d 384, 396 (9th Cir. 2011), rev’d in part on other grounds, 569 U.S. 641, 133 S.Ct. 2096, 186 L.Ed.2d 177 (2013). If, for example, the law “mandates that motor carriers [or brokers] provide a particular service to customers, or forbids them to serve certain potential customers, the effect is clear, and the provision is preempted ….” Id. By contrast, state laws that affect prices, routes, or services “in only a ‘tenuous, remote, or peripheral … manner’ with no significant impact on Congress’s deregulatory objectives” are not preempted. Su, 903 F.3d at 960 (quoting Rowe, 552 U.S. at 371, 128 S.Ct. 989).

[12]In passing the FAAAA, which is modeled on the Airline Deregulation Act of 1978 (the “ADA”),3 Congress sought to achieve two broad objectives. Id. First, it sought to eliminate the competitive advantage air carriers enjoyed relative to motor carriers. Courts had interpreted the ADA as preempting state regulation of air carriers, but not motor carriers. Id. Second, it sought to “address the inefficiencies, lack of innovation, and lack of competition caused by non-uniform regulations of motor carriers.” Id. In particular, Congress was “concerned about States enacting ‘barriers to entry, tariffs, price regulations, and laws governing the types of commodities that a carrier could transport.’ ”4 Id. at 960–61 (quoting Dilts, 769 F.3d at 644); see H.R. Conf. Rep. 103-677, at 82–88 (1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1754–60 (confirming that in passing the FAAAA, Congress was focused on economic deregulation of the trucking industry).

*4 No circuit court has yet considered an FAAAA preemption challenge brought by a broker, and district courts have reached differing conclusions as to whether negligence claims like Miller’s are “related to” broker services. Compare Scott v. Milosevic, 372 F. Supp. 3d 758, 769–70 (N.D. Iowa 2019) (holding that personal injury claims alleging negligence are not “related to” broker services), with Loyd v. Salazar, 416 F. Supp. 3d 1290, 1295–98 (W.D. Okla. 2019) (holding that such claims are “related to” broker services), and Creagan v. Wal-Mart Transp., LLC, 354 F. Supp. 3d 808, 813 (N.D. Ohio 2018) (same). District courts are also divided on the question of whether the safety exception applies in this context. Compare Lopez v. Amazon Logistics, Inc., No. 3:19-CV-2424-N, ––– F. Supp. 3d ––––, –––– – ––––, 2020 WL 2065624, at *6–8 (N.D. Tex. Apr. 28, 2020) (“[P]ersonal injury tort claims, including a negligent-hiring claim, are within the scope of section 14501(c)(2)’s exception.”), with Creagan, 354 F. Supp. 3d at 813–14 (holding that the safety exception does not apply to negligence claims asserted against brokers, including those arising out of personal injuries).

B. Miller’s Negligence Claim Is “Related to” Broker Services
Miller contends that his negligence claim against C.H. Robinson is not preempted because it is not “meaningfully distinguish[able]” from three state laws we have held escape preemption under the FAAAA. We therefore begin our discussion by briefly reviewing those three cases—Californians For Safe & Competitive Dump Truck Transportation v. Mendonca, 152 F.3d 1184 (9th Cir. 1998), Dilts v. Penske Logistics, LLC, 769 F.3d 637 (9th Cir. 2014), and California Trucking Association v. Su, 903 F.3d 953 (9th Cir. 2018).

In Mendonca, we held that the FAAAA does not prohibit California from enforcing its prevailing wage law (the “CPWL”) against motor carriers. The CPWL requires contractors and subcontractors awarded public works contracts to pay their workers no less than the prevailing wage in a given locality. See Cal. Lab. Code § 1771. We reasoned that although the CPWL “in a certain sense is ‘related to’ [motor carrier] prices, routes and services … the effect is no more than indirect, remote and tenuous,” and it does not “acutely interfer[e] with the forces of competition.” Mendonca, 152 F.3d at 1189. Then, in Dilts, we held that California’s meal and rest break laws are not “related to” motor carrier prices, routes, or services because they “do not set prices, mandate or prohibit certain routes, or tell motor carriers what services they may or may not provide, either directly or indirectly.” 769 F.3d at 647. Instead, they are “normal background rules for almost all employers doing business in [California],” and the fact “motor carriers may have to take [them] into account … when allocating resources and scheduling routes” is insufficient to show that they are preempted. Id. Most recently, we held that the FAAAA does not preempt the use of California’s common-law test for determining whether a motor carrier has properly classified its drivers as independent contractors because it is not “related to” carrier prices, routes, or services. See Su, 903 F.3d at 957.

[13]In arguing that Mendonca, Dilts, and Su “must control here,” Miller overlooks an important distinction between his claim and the laws at issue in those cases—namely, the point at which the law affects a broker (or motor carrier’s) business. As we have previously observed:
What matters [for purposes of preemption under the FAAAA] is not solely that the law is generally applicable, but where in the chain of a motor carrier’s business it is acting to compel a certain result (e.g., consumer or workforce) and what result it is compelling (e.g., a certain wage, non-discrimination, a specific system of delivery, a specific person to perform the delivery).
*5 Su, 903 F.3d at 966. The wage and hour laws at issue in Mendonca and Dilts, for example, “[i]n effect … compelled new terms in motor carriers’ agreements with their workers,” but we permitted “California to interfere with th[at] relationship.” Id. at 963. Miller’s claim, by contrast, seeks to hold C.H. Robinson liable at the point at which it provides a “service” to its customers.

[14]Here, as Miller concedes, the “selection of motor carriers is one of the core services of brokers.”5 See 49 U.S.C. § 13102(2) (defining “broker,” as it is used in the FAAAA, to mean “a person, other than a motor carrier …, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation”); see also 49 C.F.R. § 371.2 (defining “brokerage service” as “the arranging of transportation”). Because Miller’s negligence claim seeks to interfere at the point at which C.H. Robinson “arrang[es] for” transportation by motor carrier, it is directly “connect[ed] with” broker services in a manner that was lacking in Mendonca, Dilts, and Su. See Dilts, 769 F.3d at 649 (observing that state laws have “an impermissible effect” when they “interfer[e] at the point that a carrier provides services to its customers”).

[15] [16]We find Northwest, Inc. v. Ginsberg, 572 U.S. 273, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014) instructive on this point. There, the Supreme Court held that the ADA preempted a breach of the implied covenant of good faith and fair dealing claim that stemmed from an airline terminating the plaintiff from its frequent-flyer program.6 Id. at 284–85, 134 S.Ct. 1422. The claim “clearly” had the forbidden “connection with” air carrier “services, i.e., access to flights and to higher service categories,” as well as air carrier prices. Id. at 284, 134 S.Ct. 1422. In reaching this conclusion, the Court rejected the plaintiff’s argument that he was contesting his termination from the program—not his “access to flights and upgrades”—because it “ignore[d] [his] reason for seeking reinstatement of his membership, i.e., to obtain reduced rates and enhanced services.” Id. at 284–85, 134 S.Ct. 1422. We have found no reasonable ground for distinguishing Ginsberg from this case: Just as a claim that seeks reinstatement of frequent-flyer benefits has a forbidden “connection with” air carrier services, a claim that imposes an obligation on brokers at the point at which they arrange for transportation by motor carrier has a “connection with” broker services.

Miller resists this conclusion by arguing that his claim cannot be preempted because it does not “bind” C.H. Robinson to “specific prices, routes, or services.” We have occasionally suggested that preemption occurs only when a state law operates in this way. In American Trucking Associations, for instance, we observed that in a “borderline” case, “the proper inquiry is whether the provision, directly or indirectly, ‘binds the carrier … to a particular price, route or service ….’ ” 660 F.3d at 397 (quoting Air Transp. Ass’n of Am. v. City & County of San Francisco, 266 F.3d 1064, 1072 (9th Cir. 2001)); see also Dilts, 769 F.3d at 646 (“[L]aws mandating motor carriers’ use (or non-use) of particular prices, routes, or services in order to comply with the law are preempted.”). But even these cases acknowledged that the scope of FAAAA preemption is broader than this language suggests. See, e.g., Dilts, 769 F.3d at 647 (describing laws that are preempted under the FAAAA as those that “directly or indirectly mandate, prohibit, or otherwise regulate certain prices, routes, or services” (emphasis added)).

*6 [17] [18]We note also that few common-law claims, if any, would be preempted if the FAAAA only preempts state laws that bind brokers to specific prices, routes, or services. As an initial matter, there is no question that common-law claims are within the scope of the preemption clause. See Ginsberg, 572 U.S. at 284, 134 S.Ct. 1422 (“[W]e conclude that the phrase ‘other provision having the force and effect of law’ includes common-law claims.”). Yet common-law claims typically regulate behavior by imposing broad standards of conduct, not by compelling individuals to engage in (or refrain from engaging in) any specific conduct. See Medtronic, 518 U.S. at 489, 116 S.Ct. 2240 (observing that common-law actions enforce “general duties”). A negligence claim, for example, demands that an individual or entity exercise ordinary care; it does not require that this standard of care be satisfied in any particular manner. It therefore does not make sense in this context to ask whether a claim “binds” a broker to a particular price, route or service. See Ginsberg, 572 U.S. at 284–85, 134 S.Ct. 1422 (finding the plaintiff’s implied covenant claim preempted not because it bound the airline to a particular “price” or “service,” but because the plaintiff brought the claim to reinstate his access to the “reduced rates and enhanced services” available through the airline’s frequent-flyer program).

Nor are we persuaded by Miller’s argument that the reasoning of Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (en banc), is applicable here. In Charas, we considered whether negligence claims stemming from the provision of certain in-flight amenities, such as luggage handling and beverage services, were preempted under the ADA. We held that Congress used the term “service” in the ADA in the “public utility sense” to refer to “the provision of air transportation to and from various markets at various times,” but not to refer to the various amenities airlines offer their customers. Id. at 1266. Contrary to Miller’s suggestion, there is no tension between Charas’s construction of the term “service” and our conclusion that when brokers arrange for transportation by motor carrier, they perform a “service” within the meaning of the FAAAA. Even assuming brokers offer services analogous to airline amenities, motor-carrier selection is plainly not such a service. It is instead the type of “public utility” service that falls squarely within the scope of the FAAAA.7 See Nat’l Fed’n of the Blind v. United Airlines Inc., 813 F.3d 718, 727 (9th Cir. 2016) (confirming that the term “service” in the FAAAA is “focused on ‘essential details of the carriage itself’ ” (quoting Rowe, 552 U.S. at 373, 128 S.Ct. 989)).

C. Miller’s Negligence Claim Falls Within the Safety Exception
Miller contends that even if his negligence claim is “related to” broker services, it is saved from preemption by the safety exception. This exception provides that the FAAAA “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). In response, C.H. Robinson argues that “the safety regulatory authority of a State” does not encompass common-law claims, and even assuming that it does, Miller’s claim is not “with respect to motor vehicles.” We consider each of these arguments in turn.

1. The “safety regulatory authority of a State” encompasses common-law tort claims.
[19]The FAAAA does not define the phrase “the safety regulatory authority of a State,” and we find little else in the FAAAA’s text that clarifies its scope. In general, however, courts have construed the safety exception broadly. See Ours Garage, 536 U.S. at 440, 122 S.Ct. 2226 (rejecting “the narrowest possible construction of the [safety] exception”); Cal. Tow Truck Ass’n, 807 F.3d at 1022 (“Case law … has on the whole given a broad construction to the safety regulation exception.” (quoting VRC LLC v. City of Dallas, 460 F.3d 607, 612 (5th Cir. 2006)). With that background in mind, and in light of the purposes of the FAAAA in general and the safety exception in particular, we conclude that “the safety regulatory authority of a State” encompasses common-law tort claims.

[20] [21] [22]As discussed above, in passing the FAAAA, Congress was primarily concerned with the States regulating economic aspects of the trucking industry by, for example, enacting tariffs, price regulations, and other similar laws. See Su, 903 F.3d at 960. Congress’s “clear purpose” in enacting the safety exception, then, was “to ensure that its preemption of States’ economic authority over [that industry] … ‘not restrict’ ” the States’ existing power over “safety.” Ours Garage, 536 U.S. at 439, 122 S.Ct. 2226 (quoting 49 U.S.C. § 14501(c)(2)(A)). That power plainly includes the ability to regulate safety through common-law tort claims. See Desiano v. Warner-Lambert & Co., 467 F.3d 85, 86 (2d Cir. 2006) (“Historically, common law liability has formed the bedrock of state regulation, and common law tort claims have been described as ‘a critical component of the States’ traditional ability to protect the health and safety of their citizens.’ ” (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 544, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (Blackmun, J., concurring in part and dissenting in part))).

*7 We find nothing in the FAAAA’s legislative history that suggests Congress intended to eliminate this important component of the States’ power over safety. A House Conference Report, for instance, notes that a key interest group abandoned its opposition to the FAAAA subject to “some conditions that would allow regulatory protection to continue for non-economic factors, such as … safety,” and that the conferees “attempted to address these conditions” by carving out the various exceptions in § 14501(c)(2). H.R. Conf. Rep. 103-677, at 88. This broad reference to “safety” cuts against the narrow construction C.H. Robinson advances. See Apollo Grp., Inc. v. Avnet, Inc., 58 F.3d 477, 480 (9th Cir. 1995) (observing that “safety rationale[s] underl[ie] the law of tort”).

We find additional support for our conclusion that “the safety regulatory authority of a State” encompasses some common-law claims in American Trucking Associations, Inc. v. City of Los Angeles, 569 U.S. 641, 133 S.Ct. 2096, 186 L.Ed.2d 177 (2013). There, the Supreme Court considered whether requirements in a contract between the City of Los Angeles and trucking companies providing drayage services at the Port of Los Angeles (the “Port”) fell within the market-participant exception to preemption.8 That exception applies where, for example, a State “act[s] as a private party” by “contracting in a way that the owner of an ordinary commercial enterprise could mimic.” Id. at 651, 133 S.Ct. 2096.

The Supreme Court held that the market-participant doctrine did not apply, and that the requirements at issue were “preempted as ‘provision[s] having the force and effect of law.’ ” Id. at 648, 133 S.Ct. 2096 (alteration in original) (quoting 49 U.S.C. § 14501(c)(1)). Significantly, although the requirements were contained in contracts between the City and the trucking companies, a local ordinance authorized the City to punish violations through criminal sanctions. Id. at 650, 133 S.Ct. 2096; see id. at 651, 133 S.Ct. 2096 (“Contractual commitments resulting not from ordinary bargaining …, but instead from the threat of criminal sanctions manifest the government qua government, performing its prototypical regulatory role.”). In reaching this conclusion, American Trucking reasoned generally that the FAAAA’s preemption clause “targets the State acting as a State, not as any market actor—or otherwise said, the State acting in a regulatory rather than proprietary mode.” Id. at 650, 133 S.Ct. 2096. Section 14501(c)(1) therefore “draws a rough line between a government’s exercise of regulatory authority and its own contract-based participation in a market.” Id. at 649, 133 S.Ct. 2096.

Of course, the Supreme Court made these observations about the States’ “regulatory authority” in the context of clarifying the scope of the FAAAA’s preemption clause, not the safety exception. However, we think that what American Trucking said about that authority is relevant to the scope of the exception. In particular, if the preemption provision targets “a government’s exercise of regulatory authority,” id., and that provision encompasses common-law claims, see Ginsberg, 572 U.S. at 284, 134 S.Ct. 1422, then surely “the safety regulatory authority of a State” also includes at least some common-law claims.

A number of other considerations support our interpretation as well. First, if C.H. Robinson were correct that the exception is limited to positive enactments of law, tort claims that are “related to” broker prices, routes, or services might be saved from preemption in states, like California, that have codified their common law,9 but could not possibly be saved from preemption in states that have not done the same. It seems unlikely that Congress would have made the availability of this exception dependent on codification, particularly in light of the FAAAA’s goal of uniformity. Su, 903 F.3d at 960.

*8 [23]Second, while it is possible to construe “the safety regulatory authority of a State” more narrowly, “when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption.’ ” CTS Corp. v. Waldburger, 573 U.S. 1, 19, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014) (quoting Altria Grp., Inc. v. Good, 555 U.S. 70, 77, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008)). Because a narrower construction of this clause would place a large body of state law beyond the reach of the exception, we find it appropriate to interpret the clause broadly. See id. (describing this approach as “consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety” (quoting Medtronic, 518 U.S. at 485, 116 S.Ct. 2240)).

We do not find any of C.H. Robinson’s counterarguments persuasive. C.H. Robinson first focuses on the precise language the Supreme Court used in Ours Garage to describe the purpose underlying the safety exception—to leave intact “the preexisting and traditional state police power over safety,” 536 U.S. at 439, 122 S.Ct. 2226—and argues that because the “police power” may only be exercised by the state legislatures, the safety exception excludes common-law claims. The district court relied on similar reasoning in finding the exception unavailable. While the “police power” does generally refer to the States’ power to legislate,10 we think this argument reads too much into Ours Garage. At issue in that case were municipal regulations governing tow truck operations—an undisputed exercise of the “safety regulatory authority of a State” and of the “police power.” The Supreme Court therefore had no reason to consider whether the safety exception is broader than this language suggests. And, as noted, we have found no indication in the FAAAA’s legislative history that Congress intended to limit the safety exception in this way.

Nor are we persuaded by C.H. Robinson’s argument that Congress must have intended to limit the exception to legislative and regulatory enactments given how it has defined “regulatory authority” in other statutes. None of the statutes C.H. Robinson identifies supplies a general definition for the term “regulatory authority”; instead, in each, the term refers to a specific type of agency.11 These statutes also undercut C.H. Robinson’s own argument that “the safety regulatory authority of a State” refers to the power to enact legislation and regulations since each refers only to an administrative body.12

*9 Lastly, C.H. Robinson juxtaposes the safety exception against the preemption provision, reasoning that Congress intentionally crafted an exception that encompasses fewer sources of state law than the preemption provision. Compare 49 U.S.C. § 14501(c)(1) (“[A] State … may not enact or enforce a law, regulation, or other provision having the force and effect of law ….” (emphasis added)), with id. § 14501(c)(2)(A) (“Paragraph (1) … shall not restrict the safety regulatory authority of a State ….” (emphasis added)). As support for this argument, C.H. Robinson relies on Russello v. United States for the proposition that when “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)).

The Supreme Court rejected a similar argument in Ours Garage, and we do so here as well. Ours Garage held that municipal regulations governing tow truck operations fell within the safety exception even though the exception refers only to the “safety regulatory authority of a State.” 536 U.S. at 442, 122 S.Ct. 2226 (quoting 49 U.S.C. § 14501(c)(2)(A)). An argument “of some force” was presented that Congress did not intend this result given the inclusion of the term “political subdivisions of a State” in the preemption clause and exclusion of that term from the safety exception. Id. at 434, 122 S.Ct. 2226. But Ours Garage ultimately determined that the “requisite ‘clear and manifest indication that Congress sought to supplant local authority’ ” was lacking for a number of reasons. Id. (quoting Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 611, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991)).

First, the safety exception does not actually “borrow” any language from the preemption clause. See id. at 435–36, 122 S.Ct. 2226 (“The Russello presumption that the presence of a phrase in one provision and its absence in another reveals Congress’ design … grows weaker with each difference in the formulation of the provisions under inspection.”). Second, section 14501(c)(2) comprises three separate exceptions, and each is stated differently.13 See id. 435 n.2, 122 S.Ct. 2226 (characterizing these differences as “relevant to the interpretive weight that may be attached to the variation among [the exceptions]”). For these same reasons, the fact the safety exception concisely refers to “the regulatory authority of a State,” instead of spelling out the various ways the States can exercise that broad power, does not clearly signal that Congress intended to exclude all common-law claims from the exception’s reach.

2. Negligence claims against brokers that stem from motor vehicle accidents are “with respect to motor vehicles.”
*10 [24]C.H. Robinson also contends that Miller’s claim does not fall within the safety exception because it does not satisfy the “with respect to motor vehicles” clause. Specifically, C.H. Robinson argues that because it neither owned the vehicle nor selected the driver who caused the accident, Miller’s claim is not “with respect to motor vehicles.” Miller responds that his claim indirectly “regulate[s] the use of motor vehicles” by “creating incentives for brokers to select safer carriers … and thereby reduce the risk of trucking accidents.”

[25] [26]We have previously held that the phrase “with respect to” in the safety exception is synonymous with “relating to.” Cal. Tow Truck Ass’n, 807 F.3d at 1021 (quoting In re Plant Insulation Co., 734 F.3d 900, 910 (9th Cir. 2013)). “Consequently, the FAAAA’s safety exception exempts from preemption safety regulations that ‘hav[e] a connection with’ motor vehicles,” whether directly or indirectly.14 Id. at 1021–22 (quoting Dan’s City Used Cars, 569 U.S. at 260, 133 S.Ct. 1769). For example, we have held that the safety exception applies to municipal regulations governing who may obtain a tow truck permit, including a requirement that permit applicants disclose their criminal history. Id. at 1026–27. In reaching this conclusion, we rejected the argument that the “valid safety rationales” in this context are limited “to those concerned only with the safe physical operation of the tow trucks themselves.” Id. at 1023. “Rather, regulations that are ‘genuinely responsive’ to the safety of other vehicles and individuals involved in the towing process may also be exempted from preemption.”15 Id.

If criminal history disclosure requirements for tow truck drivers have the requisite “connection with” motor vehicles, then negligence claims against brokers that arise out of motor vehicle accidents must as well: Neither directly regulates motor vehicles, but both promote safety on the road. See id. at 1025 (noting that the safety exception “extends to regulations that protect safety in connection with motor vehicles towed and the individuals who interact with tow truck operators and firms”); see also Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 774 (2d Cir. 1999) (construing the safety exception as “encompass[ing] the authority to enact safety regulations with respect to motor vehicle accidents and break-downs” because such a construction “fully comports with Congress’ purpose to leave intact state and local safety regulatory authority”).

*11 We hold that negligence claims against brokers, to the extent that they arise out of motor vehicle accidents, have the requisite “connection with” motor vehicles. Therefore, the safety exception applies to Miller’s claim against C.H. Robinson.

REVERSED and REMANDED.

FERNANDEZ, Circuit Judge, concurring in part and dissenting in part:

I concur in parts I, II and III A, B, C.1 of the majority opinion. However, I respectfully dissent from part C.2. Therefore, I would affirm the district court’s decision.

Put succinctly, in my opinion, Miller’s claim does not come within 49 U.S.C. § 14501(c)(2)(A) (the “safety exception”). The safety exception provides that § 14501(c)(1) “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). While I agree that the safety exception includes state common law tort claims in principle, in my opinion, it does not apply to Miller’s negligence claim against C.H. Robinson because that claim does not amount to one under “the safety regulatory authority of a State with respect to motor vehicles.” Id. C.H. Robinson is a broker, which is “a principal or agent [that] sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” Id. § 13102(2). A motor carrier, in turn, is “a person providing motor vehicle transportation for compensation.” Id. at (14). And, a broker cannot be a motor carrier. Id. at (2). Those definitions make clear that as a broker, C.H. Robinson and the services it provides have no direct connection to motor vehicles or their drivers. Any connection is merely indirect—for example, via an intermediary motor carrier.

That attenuated connection is simply too remote for the safety exception to encompass Miller’s negligence claim. In holding otherwise, the majority opinion relies on cases that applied the safety exception to regulations of the tow truck business, such as those regarding the criminal histories of would-be tow truck drivers1 and prohibiting certain dangerous conduct by drivers while operating tow trucks.2 But in those cases, there was a very close connection to the actual operational safety of motor vehicles. Indeed, the regulatory requirements regarding towing were “ ‘genuinely responsive’ to [a] set of real safety concerns” related to motor vehicles that had motivated the regulations in the first place. Cal. Tow Truck, 807 F.3d at 1026; see id. at 1023. By contrast, Miller’s claim is not “with respect to motor vehicles,” within the meaning of the exception. See § 14501(c)(2)(A). Rather, it is with respect to C.H. Robinson’s broker services,3 which are only tangentially “relat[ed] to”4 or “connect[ed] with”5 motor vehicles. In other words, while one can envision an almost unending series of connections, there comes a point at which the series must end as a legal matter. See Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260–61, 133 S. Ct. 1769, 1778, 185 L. Ed. 2d 909 (2013); cf. Elias v. Arthur Andersen & Co. (In re Fin. Corp. of Am. Shareholder Litig.), 796 F.2d 1126, 1130–31 (9th Cir. 1986); Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 103 (1928) (Andrews, J., dissenting). Miller’s claim is beyond that point. Allowing it to avoid preemption would inevitably conscript brokers into a parallel regulatory regime that required them to evaluate and screen motor carriers (which are already subject to federal registration requirements6 as well as state and local regulations) according to the varied common law mandates of myriad states. It could even require brokers to effectively eliminate some motor carriers from the transportation market altogether. That is a far cry from municipal ordinances that require tow truck driver applicants to disclose their criminal histories, or that impose a rotational system to discourage competing tow truck drivers from racing each other to accident scenes. See Cal. Tow Truck, 807 F.3d at 1020–23, 1026–27; Cole, 314 F.3d at 732, 734–35; Ace Auto Body, 171 F.3d at 774–76. The words of the safety exception cannot be stretched that far.

*12 Despite the broad language that we have used in applying the safety exception to some municipal towing regulations,7 I would not unmoor that reasoning from the factual circumstances presented there, nor would I transpose it to the distinctly different area of broker services. Rather, we should hold that Miller’s negligence claim is expressly preempted and the safety exception is inapplicable.

Thus, while I concur in much of what the majority decides, ultimately I respectfully dissent.

All Citations
— F.3d —-, 2020 WL 5757013, 20 Cal. Daily Op. Serv. 10,136

Footnotes

*
The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation.

1
The parties stipulated to Costco’s dismissal in September 2017.

2
Preemption resulting from “reference to” prices, routes, or services occurs when “a State’s law acts immediately and exclusively upon” prices, routes, or services, or “where the existence of [a price, route or service] is essential to the law’s operation.” Air Transp. Ass’n of Am. v. City & County of San Francisco, 266 F.3d 1064, 1071 (9th Cir. 2001) (alteration in original) (quoting Cal. Div. of Labor Standards Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997)). We do not address whether Miller’s negligence claim is preempted under this separate prong.

3
The ADA provides, in relevant part, that “a State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1).

4
For an in-depth discussion of the FAAAA’s legislative history, see Californians For Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1187–88 (9th Cir. 1998).

5
Because C.H. Robinson has not argued that Miller’s claim is “related to” its prices or routes, we only address whether it is “related to” C.H. Robinson’s services.

6
Because the FAAAA is modeled on the ADA, “ADA preemption cases can … be consulted to analyze FAAAA preemption.” Su, 903 F.3d at 960.

7
The FAAAA, like the ADA, does not define the term “service.” See 49 U.S.C. § 13102.

8
Two requirements were alleged to fall within that exception in American Trucking. One required trucking companies operating at the Port to affix on each of their trucks a placard with a phone number for reporting environmental and safety concerns, and the other required the companies to submit an off-street parking plan for their trucks. Am. Trucking Ass’ns, 569 U.S. at 645, 133 S.Ct. 2096.

9
“[U]nlike many jurisdictions, California’s general tort law is codified in its civil code.” Ileto v. Glock, Inc., 565 F.3d 1126, 1132–33 (9th Cir. 2009); see, e.g., Cal. Civ. Code § 1714(a) (“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person ….”).

10
See, e.g., Bond v. United States, 572 U.S. 844, 854, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014) (“The States have broad authority to enact legislation for the public good—what we have often called a ‘police power.’ ”); Budd v. Madigan, 418 F.2d 1032, 1035 (9th Cir. 1969) (“[W]hen the subject lies within the police power of the state, even debatable questions as to reasonableness are not for the Courts, but for the legislature ….”).

11
See, e.g., 42 U.S.C. § 6807a(e) (defining “State regulatory authority” as “any State agency which has ratemaking authority with respect to the sale of electric energy by any electric utility” (cross-referencing 16 U.S.C. § 2602(17))); 15 U.S.C. § 7201(1) (“The term ‘appropriate State regulatory authority’ means the State agency or other authority responsible for the licensure or other regulation of the practice of accounting in the State ….”).

12
C.H. Robinson also contends that the Supreme Court has “consistently distinguished between state law tort claims and state regulation” when analyzing preemption. C.H. Robinson does not, however, explain how this general observation has any bearing on the interpretive question presented here. Nor do any of the cases C.H. Robinson cites assist us. The preemption clause in Sprietsma v. Mercury Marine, for instance, bears little resemblance to the safety exception. See 537 U.S. 51, 63, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002) (holding that 46 U.S.C. § 4306, which prohibits the States from “establish[ing], continu[ing] in effect, or enforc[ing] a law or regulation establishing a … safety standard,” does not encompass common-law claims because “the article ‘a’ before ‘law or regulation’ implies a discreteness” that is absent from the common law, and if “law” were interpreted broadly so as to include common-law claims, it would render the express reference to “regulation” superfluous).

13
Section 14501(c)(2) provides, in full:
(2) Matters not covered.–Paragraph (1)–
(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization;
(B) does not apply to the intrastate transportation of household goods; and
(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the regulation of tow truck operations performed without the prior consent or authorization of the owner or operator of the motor vehicle.
49 U.S.C. § 14501(c)(2).

14
Although not argued by the parties, we note that Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) gave a narrower construction to the phrase “with respect to.” See id. at 501, 116 S.Ct. 2240 (holding that negligence claims stemming from the alleged defective manufacturing and labeling of a pacemaker were not preempted by 21 U.S.C. § 360k(a) in part because the “common-law requirements” at issue “were not specifically developed ‘with respect to’ medical devices” (quoting 21 U.S.C. § 360k(a))). We do not find Medtronic’s construction of that phrase applicable here because we are interpreting a savings clause, not a preemption clause.

15
A number of our sister circuits have given the safety exception a similarly broad construction. See, e.g., Cole v. City of Dallas, 314 F.3d 730, 732–35 (5th Cir. 2002) (holding that an ordinance prohibiting individuals convicted of specified criminal offenses from obtaining a tow truck permit fell within the safety exception because the regulation has, “at its core, [a] concern for safety”); Ace Auto Body & Towing, Ltd. v. City of N.Y., 171 F.3d 765, 768–69 (2d Cir. 1999) (rejecting the argument that the safety exception “extends only to safety regulation of the mechanical components of motor vehicles … and not to municipal management of vehicular accidents”).

1
See Cal. Tow Truck Ass’n v. City & County of San Francisco, 807 F.3d 1008, 1026–27 (9th Cir. 2015) (requiring tow truck driver permit applicants to list all arrests for criminal offenses); Cole v. City of Dallas, 314 F.3d 730, 732, 734–35 (5th Cir. 2002) (per curiam) (prohibiting those convicted of certain crimes from receiving tow truck driver permits); Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 776 (2d Cir. 1999) (tow truck driver criminal history requirements).

2
Ace Auto Body, 171 F.3d at 769, 774–75 (regulations to curtail tow truck drivers’ practice of competitively racing to accident scenes).

3
See Opinion at ––––.

4
Cal. Tow Truck, 807 F.3d at 1021 (internal quotation marks omitted).

5
Id. (internal quotation marks omitted).

6
See 49 U.S.C. § 13902(a)(1).

7
Cal. Tow Truck, 807 F.3d at 1023.