2020 WL 1083681

United States District Court, D. Rhode Island.
JOHN FRANKLIN BUERMAN, SR. and Jane Buerman, Plaintiffs,
v.
Anthony J. WITKOWSKI, and New Penn Motor Express LLC f/k/a New Penn Motor Express, Inc., Defendants.
Anthony J. Witkowski, and New Penn Motor Express LLC, as successor in interest to New Penn Motor Express, Inc., Plaintiffs-in-Counterclaim,
v.
John Franklin Buerman, Sr., Defendant-in-Counterclaim.
C.A. No. 1:17-CV-00444-MSM-LDA
|
Signed 03/06/2020
Attorneys and Law Firms
C. Russell Bengtson, Bengtson & Jestings, LLP, Dennis D. Bossian, John K. Windecker, Scott P. Tierney, Rob Levine & Associates, Providence, RI, for Plaintiffs.
Andrew J. Fay, Pro Hac Vice, Craig S. Harwood, Fay Law Group, LLC, Boston, MA, for Defendants.

MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge
*1 This matter comes before the Court on the Motion for Partial Summary Judgment of the plaintiff/defendant-in-counterclaim, John Franklin Buerman, Sr. (“Buerman”), and the Objection of the defendants/plaintiffs-in-counterclaim, Anthony J. Witkowski (“Witkowski”) and New Penn Motor Express LLC (“New Penn”) (collectively “the defendants”). (ECF Nos. 24 & 28.)

The issue is whether Witkowski and New Penn’s amended Counterclaim, filed after the expiry of the relevant statute of limitations, can, under Fed. R. Civ. P. 15(c), relate back to the timely filed original Counterclaim. The Court determines that the amended Counterclaim does so relate back and, for the reasons that follow, Buerman’s Motion for Partial Summary Judgment is DENIED.

I. BACKGROUND
This matter arises from a collision between two tractor trailer vehicles on Route 6 in Foster, Rhode Island, on October 21, 2014. (ECF No. 1-1.) Buerman, the driver of one of the vehicles, filed suit in Rhode Island Superior Court on August 28, 2017. Id. He has asserted that he sustained personal injuries as a result of the alleged negligence of the driver of the other vehicle, Witkowski. Further, he has asserted Witkowski’s employer and the owner of the vehicle, New Penn, also is liable for Witkowski’s acts or omissions pursuant to R.I.G.L. § 31-33-6.1 Id.

The defendants, Witkowski and New Penn, removed the matter to this Court on September 27, 2017, pursuant to the diversity jurisdiction clause of 28 U.S.C. § 1332. (ECF No. 1.) On October 18, 2017, the defendants filed their Answer to the plaintiffs’ Complaint and asserted a Counterclaim against Buerman. (ECF No. 4.) Through the Counterclaim, the defendants have alleged that Buerman’s negligence caused the accident and that therefore New Penn is entitled to the damages allegedly caused to its vehicle. Id. Specifically, the defendants have alleged that Buerman operated his truck with no lights, or insufficient lights, in a dark environment. Id.

On October 31, 2017, the defendants filed an amended Counterclaim, adding to their asserted damages a prayer for recovery of the workers’ compensation benefits that New Penn paid to Witkowski for injuries he allegedly sustained as a result of the collision.2 (EOF No. 7.)

Buerman now seeks partial summary judgment on the defendants’ amended Counterclaim as it relates to New Penn’s claim for reimbursement of Witkowski’s workers’ compensation benefits. As grounds, Buerman asserts that the defendants filed the amended Counterclaim after the passing of the relevant statute of limitations. The parties do not dispute that the statute of limitations expired on October 21, 2017. The defendants in turn argue that the amended Counterclaim should relate back the original Counterclaim pursuant to Fed. R. Civ. P. 15(c).

II. SUMMARY JUDGMENT STANDARD
*2 “Summary judgment is only proper when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Doe v. Trustees of Boston College, 892 F.3d 67, 79 (1st Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). In ruling on a motion for summary judgment, the court must examine the record evidence “in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party.” Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000) (citing Mulero–Rodriguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir. 1996)). “[W]hen the facts support plausible but conflicting inferences on a pivotal issue in the case, the judge may not choose between those inferences at the summary judgment stage.” Coyne v. Taber Partners I, 53 F.3d 454, 460 (1st Cir. 1995).

III. DISCUSSION

A. The Relevant Statute of Limitations
As this matter is before the Court subject to diversity jurisdiction, the Court applies state substantive law. See Crellin Techs, Inc. v. Equipmentlease Corp., 18 F.3d 1, 4 (1st Cir. 1994). Here, the parties do not dispute that it is Rhode Island’s substantive law which governs and the Court will not disturb this choice. See Moores v. Greenberg, 834 F.2d 1105, 1107 n.2 (1st Cir. 1987).

“State statutes of limitations have been uniformly held to be substantive in nature, rather than procedural.” Waters v. Walt Disney World Co., 237 F. Supp. 2d 162, 165 (D.R.I. 2002) (citing Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 110 (1945)). For personal injury actions under Rhode Island law, the statute of limitations is three years. R.I.G.L. § 9-1-14(b) (“Actions for injuries to the person shall be commenced and sued within three (3) years next after the cause of action shall accrue, and not after ….”). Rhode Island law further provides that a cause of action for personal injuries resulting from a motor vehicle accident accrues on the date of the accident. Benner v. J.H. Lynch & Sons, Inc., 641 A.2d 332, 336 (R.I. 1994); Von Villas v. Williams, 117 R.I. 309, 313-14, 366 A.2d 545, 548 (1976).

Here, because the accident occurred on October 21, 2014, and the cause of action accrued on that date, the three-year statute of limitations expired on October 21, 2017. Thus, there is no question that the amended Counterclaim, filed on October 31, 2017, was filed after the expiry of the statute of limitations. Only if the amended Counterclaim can relate back to the filing of the original Counterclaim (October 18, 2017) will it survive summary judgment.

B. Relation Back Under Fed. R. Civ. P. 15(c)
The question of whether the amended Counterclaim relates back to the date of the filing of the original Counterclaim is a procedural question and therefore is decided by federal law. See Morel v. DaimlerChrysler AG, 565 F.3d 20, 25 (1st Cir. 2009). Rule 15 of the Federal Rules of Civil Procedure provides in relevant part as follows:
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
…
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading….
Courts liberally apply the Rule 15(c) relation back doctrine. See, e.g., Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1543 (8th Cir. 1996); Fed. Deposit Ins. Corp. v. Bennett, 898 F.2d 477, 480 (5th Cir. 1990); Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1259 n.29 (9th Cir. 1982); Staren v. Am. Nat. Bank & Trust of Chicago, 529 F.3d 1257, 1263 (7th Cir. 1976); Gold v. Poccia, 2018 WL 4521940, at *2 (D.R.I. Sept. 21, 2018).

*3 As noted, Rule 15(c)(1)(B) provides that an amended pleading relates back to the original pleading when it asserts claims based upon the “conduct, transaction, or occurrence,” described in the original pleading. See Mayle v. Felix, 545 U.S. 644, 659 (2005); Tiller v. Atl. Coast Line R. Co., 323 U.S. 574, 580-81 (1945). Indeed, the U.S. Supreme Court has interpreted Rule 15(c)(1)(B) to “depend[ ] on the existence of a common core of operative facts uniting the original and newly asserted claims.” Mayle, 545 U.S. at 646. “A common core of operative facts exists if ‘the opposing party has had fair notice of the general fact situation and legal theory upon which the amending party proceeds.’ ” Tenon v. Dreibelbis, 190 F. Supp. 3d 412, 416 (M.D. Pa. 2016) (quoting Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 310 (3d Cir. 2004)). A party cannot assert a new claim that would otherwise be untimely if the new claim “[is] supported by facts that differ in both time and type from those the original pleading set forth.” Mayle, 545 U.S. at 650.

Yet, the addition of some facts in an amended pleading does not necessarily preclude a finding of relation back if the facts remain based upon the same “occurrence.” See Tiller, 323 U.S. at 580-81 (allowing an amended pleading adding a statutory claim to a wrongful death action to relate back, despite relying on facts not originally asserted, because the amended claim was based upon the same, single occurrence). However, if the new facts added involve an occurrence not discernable in the original complaint—“facts that differ in both time and type”—the amendment will not relate back. Mayle, 545 U.S. at 650. See also F.D.I.C. v. Conner, 20 F.3d 1376, 1385 (5th Cir. 1994) (“If a plaintiff attempts to interject entirely different conduct or different transactions or occurrences into a case, then relation back is not allowed.”); O’Loughlin v. National R.R. Passenger Corp., 928 F.2d 24, 26-27 (1st Cir. 1991) (holding that an amended complaint did not relate back when the plaintiff’s amendment sought relief for a different accident than that set forth in the original complaint).

Indeed, “[t]he rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide.” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 150 n.3 (1984). Because the critical issue is whether the opposing party received adequate notice, the principal inquiry is whether “the matters raised in the amended pleading [have] been given to the opposing party within the statute of limitations ‘by the general fact situation alleged in the original pleading.’ ” Stevelman v. Alias Research Inc., 174 F.3d 79, 86 (2d Cir. 1999) (citations omitted); see also Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866 (D.C. Cir. 2008) (“The underlying question is whether the original complaint adequately notified the defendants of the basis for liability the plaintiffs would later advance in the amended complaint.”); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Procedure § 1497 (“[I]f the alteration of the original pleading is so substantial that it cannot be said that defendant was given adequate notice of the conduct, transaction, or occurrence that forms the basis of the claim … then the amendment will not relate back.”).

Therefore, courts allow amended pleadings asserting new legal theories of recovery to relate back to the original filing where both pleadings share a basis in factual circumstances (a “common core of operative facts”). See, e.g., Tiller, 323 U.S. at 580-81; Travelers Ins. Co. v. Third Assocs., 14 F.3d 114, 125 (2d Cir. 1994); Johansen v. E.I. DuPont de Nemours & Co., 810 F.2d 1377, 1380 (5th Cir. 1987); Santana v. Holiday Inns, Inc., 686 F.2d 736, 739 (9th Cir. 1982).

*4 Moreover, amended pleadings that do not add a new cause of action, but instead include an additional claim for damages based on the same occurrence set forth in the original pleading, may also relate back. See, e.g., Conner, 20 F.3d at 1386 (holding that an amendment “to identify additional sources of damages that were caused by the same pattern of conduct identified in the additional complaint” related back to the original pleading); Belmont Commons, LLC v. Axis Surplus, Ins. Co., 569 F. Supp. 2d 637, 644 (E.D. La. 2008); Scott v. Fairbanks Capital Corp., 284 F. Supp. 2d 880, 887 (S.D. Ohio 2003).

Here, the “conduct, transaction, or occurrence” alleged in the original Counterclaim is the motor-vehicle accident between Buerman and Witkowski. See Fed. R. Civ. P. 15(c)(1)(B). The facts that the defendants have alleged regarding that occurrence, namely that it was caused by Buerman’s operation of his truck with no lights or insufficient lights in a dark environment, is the “common core of operative facts” uniting both the original and amended Counterclaims. See Mayle, 545 U.S. at 646. From these facts, the defendants put forth a negligence cause of action against Buerman.

In the amended Counterclaim, the defendants do not go so far as to assert a new legal theory; instead, they expand their claim for damages within their negligence claim. That is, the defendants asserted in the original Counterclaim a negligence cause of action whereby New Penn sought compensation for alleged property damages to the vehicle that Witkowski was driving at the time of the accident. In their amended Counterclaim, New Penn adds to its negligence count a claim for compensation for the workers’ compensation benefits it paid to Witkowski for the injury to his person.

Certainly, adequate notice of the conduct or occurrence giving rise to the defendants’ amended Counterclaim (the accident) was provided to Buerman in the original Counterclaim. Further, a factual nexus exists between the amended and original pleadings: the same accident gave rise to both the alleged property damage and the personal injury. See Mayle, 545 U.S. at 664 (“So long as the original and amended [pleadings] state claims that are tied to a common core of operative facts, relation back will be in order.”).

Because the amended Counterclaim arises from the same “conduct, transaction, or occurrence” set out in the original Counterclaim and both pleadings depend upon “a common core of operative facts,” Buerman received adequate notice prior to the expiry of the statute of limitations of the basis of liability upon which the defendants proceed. See Fed. R. Civ. P. 15(c)(1)(B); Mayle, 545 U.S. at 664. As such, Rule 15(c)(1)(B) requires that the amended Counterclaim relate back to the date of filing of the original Counterclaim.

IV. CONCLUSION
Because the amended Counterclaim relates back to the original Counterclaim per Rule 15(c)(1)(B), it is not barred by Rhode Island’s statute of limitations for actions arising from personal injury. Buerman’s Motion for Partial Summary Judgment (ECF No. 24) is therefore DENIED.

IT IS SO ORDERED.

All Citations
Slip Copy, 2020 WL 1083681

Footnotes

1
Rhode Island General Laws § 31-33-6 is the state’s “owner-liability statute,” which provides that an automobile owner is vicariously liable for the acts of a driver operating the vehicle with the owner’s consent.

2
New Penn makes this claim pursuant to R.I.G.L. § 28-35-58, which provides that if an employee has been paid workers’ compensation benefits, “the person by whom the compensation was paid shall be entitled to indemnity from the person liable to pay damages, and to the extent of that indemnity shall be subrogated to the rights of the employee to recover those damages.”

2020 WL 1074056

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

MCFADDEN, Chief Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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