2020 WL 6385808

United States District Court, E.D. Louisiana.
AARON MEYER, ET AL.
v.
BRIAN JENCKS, SUMMERFORD TRUCK LINE, INC., and ARCH INSURANCE CO.
CIVIL ACTION NO: 19-11398
|
10/30/2020

JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE

SECTION: “H”

ORDER AND REASONS
*1 Before the Court is Defendants Brian Jencks, Summerford Truck Line, Inc., and Arch Insurance Co.’s Motion for Partial Summary Judgment (Doc. 41). For the following reasons, the Motion is GRANTED.

BACKGROUND
This matter arises out of a vehicular collision that occurred on August 1, 2018. Following the collision, Aaron J. Meyer, individually and on behalf of his minor children, Addison Meyer and Auburn Meyer (collectively “Plaintiffs”), filed a Petition for Damages1 against Defendants, Brian D. Jencks (“Jencks”), Summerford Truck Line, Inc. (“Summerford”), and Arch Insurance Company (collectively “Defendants”), alleging that Plaintiffs were severely injured when the tractor-trailer operated by Jencks slammed into the passenger side of Plaintiffs’ vehicle. Plaintiffs contend that the injury was caused by (1) the negligence of Jencks, who operated the vehicle while in the course and scope of his employment with Summerford, and (2) Summerford, who owned the vehicle and supervised Jencks. Plaintiffs brought claims against Jencks for negligence and claims against Summerford for negligence and vicarious liability. Specifically, Plaintiffs allege that:
“The proximate cause of the above-referenced accident was the negligence and fault of Defendant, SUMMERFORD TRUCK LINE, INC., through respondeat superior and/or through its direct negligence which includes but is not limited to the following non-exclusive particulars: (1) Failure to establish adequate rules, regulations, and procedures for its hired drivers; (2) Allowing inexperienced or untrained agents, servants, contractors, lessors, or employees, and specifically Brian D. Jencks, to operate tractor-trailers on its behalf; (3) Failure to adequately and effectively supervise its contractors/lessors/employees/drivers, and specifically Brian D. Jencks[.]”2
Further, Plaintiffs claim that Arch Insurance Company is liable because it provided an insurance policy to Jencks and/or Summerford on the date of this accident.

Defendants do not contest that Jencks was operating a Summerford-owned vehicle while in the course and scope of his employment with Summerford. As such, Defendants now move for Partial Summary Judgment on the grounds that Plaintiffs are precluded from recovery against Summerford for Summerford’s alleged “direct negligence.” Specifically, Defendants contend that when an employer admits, as it has here, that the employee was in the course and scope of his employment when the alleged negligence occurred, the plaintiffs cannot maintain both a direct negligence claim and a vicarious liability claim against the employer. Accordingly, Defendants request dismissal of Plaintiffs’ direct negligence claim against Summerford.

Although Plaintiffs have not filed an opposition to Defendants’ Motion, the Court may not simply grant the instant Motion as unopposed. The Fifth Circuit approaches the automatic grant of dispositive motions with considerable aversion.3 Instead, the Court will consider the merits of Defendants’ arguments.

LEGAL STANDARD
*2 Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”4 A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”5

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.6 “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”7 Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.”8 “In response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim, and such evidence must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.”9 “We do not…in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”10 Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”11

LAW AND ANALYSIS
Defendants ask this court to dismiss Plaintiffs’ direct negligence claims against Summerford. Defendants argue that when an employer admits that the employee was acting within the course and scope of his employment, the plaintiff cannot simultaneously pursue vicarious liability and direct negligence claims against the employer.

Louisiana law applies to this diversity action.12 Currently, there is no binding precedent under Louisiana law controlling this issue.13 “If there is no ruling by the state’s highest court on the specific question, the Court must make an Erie guess as to how the state’s highest court would decide the issue.”14 Several federal courts in Louisiana have recently engaged in making an Erie guess on this issue and have sided with Defendant.15 Indeed, several courts within the Fifth Circuit have held that a plaintiff cannot maintain a direct negligence claim against an employer when the employer is vicariously liable for the negligence of its employee.16

*3 In Thomas v. Chambers, the plaintiff was injured in a car accident involving a tractor-trailer operated by Randall Chambers, an employee of God’s Way Trucking, LLC (“God’s Way”).17 Plaintiff brought claims against Chambers for his negligence and against God’s Way for vicarious liability and for negligently hiring, training, supervising, and entrusting Chambers.18 The Thomas court held “that plaintiffs may not maintain both a direct negligence claim against God’s Way and a claim that God’s Way is vicariously liable for Chambers’s negligence, because God’s Way readily admits that it is vicariously liable for Chambers’s alleged negligence.”19

In so holding, the court made an Erie guess in reliance on the Louisiana Third Circuit Court of Appeal’s decision in Libersat v. J & K Trucking, Inc.20 In Libersat, the Third Circuit held that the district court did not err in failing to instruct the jury on the employer’s duty regarding hiring and training when it “equated respondeat superior to all possible theories of recovery.”21 The court explained that:
If Mr. Mitchell [the employee] breached a duty to the Appellants, then Patterson [his employer] is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the Appellants, then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the Appellants.22
Judge Vance “reasoned that, if a jury charge on the employer’s standard of care is unnecessary under the scenario at issue, then summary judgment on direct negligence claims is also appropriate.”23

This Court has twice now followed the reasoning articulated in Thomas and dismissed direct negligence claims against employers where vicarious liability was established.24 Accordingly, as Plaintiffs have not provided this Court with any case reaching a contrary conclusion, Plaintiffs’ claims for direct negligence against Summerford are hereby dismissed.

CONCLUSION
For the forgoing reasons, Defendants’ Motion for Partial Summary Judgment is GRANTED, and Plaintiffs’ claims for direct negligence against Summerford Truck Line, Inc. are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 30th day of October, 2020.

JANE TRICHE MILAZZO

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2020 WL 6385808

Footnotes

1
Plaintiffs initially filed suit in Louisiana state court. Defendants removed the suit to federal court on June 27, 2019.

2
Doc. 1-2 at ¶ 5 (emphasis added).

3
See, e.g., Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012); Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per curiam); John v. State of La. (Bd. of Trs. for State Colls. and Univs.), 757 F.2d 698, 709 (5th Cir. 1985).

4
Fed. R. Civ. P. 56(c).

5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

6
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).

7
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

8
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

9
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (internal citations omitted).

10
Badon v. RJR Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

11
Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

12
Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675, 681 (5th Cir. 2011).

13
Wright v. Nat’l Interstate Ins. Co., No. CV 16-16214, 2017 WL 5157537, at *2 (E.D. La. Nov. 7, 2017).

14
Thomas v. Chambers, No. CV 18-4373, 2019 WL 1670745, at *6 (E.D. La. Apr. 17, 2019).

15
Id.; Wright, 2017 WL 5157537, at *2; Dennis v. Collins, No. CV 15-2410, 2016 WL 6637973, at *8 (W.D. La. Nov. 9, 2016).

16
See Thomas, 2019 WL 1670745 (Vance, J.); Wright, 2017 WL 5157537, at *3 (Fallon, J.); Pigott v. Heath, No. 18-9438, 2020 WL 564958, at *5 (E.D. La. Feb. 5, 2020) (Feldman, J.); Andry v. Werner Enterprises of Nebraska, No. 19-11340, 2020 WL 419296, at *1 (E.D. La. Jan. 27, 2020) (Guidry, J.); Watson v. Jones, No. 19-2219, 2020 WL 3791894 *1, *4 (E.D. La. July 7, 2020) (Lemelle, J.); see also Vaughn v. Taylor, No. 18-1447, 2019 WL 171697, at *3 (W.D. La. Jan. 10, 2019); Franco v. Mabe Trucking Co., Inc., No. 17-871, 2018 WL 6072016, at *4 (W.D. La. Nov. 20, 2018); Dennis v. Collins, 2016 WL 6637973, at *7; Wilcox v. Harco Int’l Ins., No. 16-187, 2017 WL 2772088, at *3 (M.D. La. June 26, 2017).

17
Thomas, 2019 WL 1670745, at *1.

18
Id.

19
Id. at *7.

20
772 So. 2d 173 (La. App. 3 Cir. 2000).

21
Id. at 179.

22
Id.

23
Giles v. ACE Am. Ins. Co., No. CV 18-6090, 2019 WL 2617170, at *2 (E.D. La. June 26, 2019) (discussing Thomas, 772 So. 2d 173).

24
See Jones v. Nat’l Liab. & Fire Ins. Co., No. CV 19-4353, 2020 WL 1332944, at *1 (E.D. La. Mar. 23, 2020) (Milazzo, J.); Coffey v. Knight Refrigerated, LLC, No. 19-3981, 2019 WL 5684258, at *3 (E.D. La. Nov. 1, 2019) (Milazzo, J.).

2020 WL 6270743

United States District Court, E.D. Missouri, Eastern Division.
NATALY MENDOZA, et al., Plaintiffs,
v.
BSB TRANSPORT, INC., et al., Defendants.
Case No. 4:20 CV 270 CDP
|
10/26/2020

CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

MEMORANDUM AND ORDER
*1 This matter is before me on the motion for judgment on the pleadings filed by defendant Reliable Transportation Solutions, LLC. Reliable seeks dismissal from this wrongful death action, arguing that plaintiffs’ negligent brokering and vicarious liability claims against it are preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), 49 U.S.C. § 14501(c)(1). For the following reasons, the motion will be denied.

Standards Governing Motions for Judgment on the Pleadings
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed – but early enough not to delay trial – a party may move for judgment on the pleadings.” A motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is reviewed using the same standard that governs a motion to dismiss under Fed. R. Civ. P. 12(b)(6). NanoMech, Inc. v. Suresh, 777 F.3d 1020, 1023 (8th Cir. 2015) (citing McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 912-13 (8th Cir. 2014)). Therefore, courts must consider whether the complaint pleads “ ‘enough facts to state a claim that is plausible on its face.’ ” NanoMech, 777 F.3d at 1023 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “ ‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “ ‘[L]egal conclusions’ and ‘threadbare recitations of the elements of a cause of action, supported by mere conclusory statements,’ are not entitled to a presumption of truth when considering the sufficiency of a complaint.” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir.

2015) (quoting Iqbal, 556 U.S. at 678).
The complaint’s factual allegations must be “sufficient to ‘raise a right to relief above the speculative level….’ ” McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). The Court does not accept as true any “ ‘legal conclusion couched as a factual allegation.’ ” Brown v. Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). Thus, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678). “ ‘Determining whether a complaint states a plausible claim for relief…[is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Mickelson v. Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alteration in original) (quoting Iqbal, 556 U.S. at 679). As the party raising the affirmative defense of federal preemption, Reliable bears the burden of proof that plaintiff’s claims are preempted. Hughs v. Union Pac. R.R. Co., No. 5:15-06079-CV-RK, 2017 WL 1380480, at *1 (W.D. Mo. Apr. 14, 2017).

Relevant, Undisputed Background Facts
*2 Defendant Reliable, a freight broker, hired defendant BSB to transport goods. BSB in turn hired defendant Singh to drive the tractor trailer which would transport those goods. On June 7, 2019, while driving down highway 44 in Franklin County, Missouri, defendant Singh crashed the tractor trailer into the back of the car occupied by Martha Rabadan, Maria Mendoza, and Ignacio Castro, killing all three. Plaintiff Mendoza is the administrator of the decedents’ estates and claims that Reliable is vicariously liable for the wrongful death of decedents (Count III) and that Reliable negligently selected/hired BSB and Singh to transport goods (Count IV), resulting in the death of decedents.1 The Second Amended Complaint alleges that Reliable negligently hired BSB, an “unrated” and relatively new motor carrier. In support of her vicarious liability claim, plaintiff alleges that BSB and Singh were the agents of Reliable, which held itself out as the motor carrier of the load, and that Reliable exercised control over BSB and Singh by “communicating and coordinating directly with BSB and Singh” and “imposing equipment requirements, reporting requirements, scheduling requirements, and payment requirements.” (Second Amended Complaint at p. 9-10, Count III, Paragraphs 10, 11).

Discussion
Reliable moves to dismiss plaintiff’s Missouri common law claims, arguing that they are expressly preempted by the FAAAA. “The preemption doctrine derives from the Constitution’s supremacy clause, which states that laws of the United States made pursuant to the Constitution are the ‘supreme Law of the Land.’ ” Wuebker v. Wilbur-Ellis Co., 418 F.3d 883, 886 (8th Cir. 2005) (quoting U.S. Const. Art. VI, cl. 2). A state law is expressly preempted “when a federal law explicitly prohibits state regulation in a particular field.” Mo. Brd. of Examiners for Hearing Instrument Specialists v. Hearing Help Express, Inc., 447 F.3d 1033, 1035 (8th Cir. 2006). The FAAAA was enacted by Congress to preempt state trucking regulations in order to avoid “a patchwork of state service-determining laws, rules, and regulations” that could have an economic burden on the trucking industry. Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 264 (2013) (quoting Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 373 (2008)). The relevant portion of the FAAAA provides 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 any motor carrier…or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.
49 U.S.C. § 14501(c)(1). “In the FAAAA, Congress sought to equalize competition between air and motor carriers of property by uniformly preempting state economic regulation of their activities, but not preempting safety regulations.” Data Mfg., Inc. v, United Parcel Service, Inc., 557 F.3d 849, 851-52 (8th Cir. 2009) (internal citation omitted). The Supreme Court has broadly interpreted the phrase “relating to.” Id. As applied in this case, if plaintiff’s common law claims for negligent brokering and vicarious liability relate to Reliable’s prices, routes or services and derive from the enactment or enforcement of state law, they would fall within the purview of the statute and be subject to preemption unless the safety regulation exception applies. See id. at 852.

To support her argument that her negligent hiring/selection claim is not preempted, plaintiff points to the recent decision of the Honorable John A. Ross, United States District Judge for the Eastern District of Missouri, in Uhrhan v. B&B Cargo, Inc., No. 4:17CV2720 JAR, 2020 WL 4501104, at *1 (E.D. Mo. Aug. 5, 2020). In that wrongful death case arising out of a motor vehicle collision, Judge Ross determined that plaintiff’s negligent brokering claims against the defendant broker were not preempted because they fell under the statute’s safety regulation exception. Id. at *4-5. The safety regulation exception is found in § 14501(c)(2) of the FAAAA and provides the following limitation on the FAAAA’s preemptive scope:
*3 Paragraph (1) 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.
49 U.S.C. § 14501(c)(2).

“As of yet, neither the Supreme Court nor the circuit courts have addressed the specific issue whether the FAAAA preemption clauses encompass negligence or negligent-hiring claims in personal injury suits against brokers. The district courts that have confronted this question are split on both outcome and rationale.” Lopez v. Amazon Logistics, Inc., No. 3:19-CV-2424-N, 2020 WL 2065624, at *4 (N.D. Tex. Apr. 28, 2020); see also Gillum v. High Standard, LLC, No. SA-19-CV-1378-XR, 2020 WL 444371, at *3-5 (W.D. Tex. Jan. 27, 2020) (describing the development of “two diverging lines of cases,” a line of preemption and a line of no preemption); Loyd v. Salazar, 416 F. Supp. 3d 1290, 1295 (W.D. Okl. 2019) (finding that “[f]ederal district courts are sharply divided” as to whether personal injury claims alleging negligence by brokers in selecting motor carriers are preempted by the FAAAA).

In reaching his decision that plaintiffs’ negligent brokering claims were not preempted, Judge Ross first concluded that “Missouri’s common law negligent brokering claim is a state enforced provision that can be preempted under the FAAAA.” Uhrhan, 2020 WL 4501104, at *3. He next held that “negligent brokering claims relate to the services of [a broker] and fall[ ] within the scope of 49 U.S.C. § 14501(c)(1).” Id. at *3-4. However, Judge Ross ultimately determined that plaintiffs’ negligent brokering claims were not preempted by the FAAAA because they fell within the statute’s safety regulation exception, which states that the FAAAA’s preemption provision “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). See id. at *4. Judge Ross held:
The Court is thus faced with two questions: First, whether common law claims can be understood as an exercise of a state’s “safety regulatory authority” and, second, whether a negligent brokering claim is a cause of action “with respect to motor vehicles.” In considering these questions, the Court is guided by the holding of the Supreme Court in City of Columbus v. Ours Garage and Wrecker Srvc., Inc., which held that the safety regulation exception should be broadly construed. 536 U.S. 424, 426 (2002). In Ours Garage, the Supreme Court explained:
Preemption analysis start[s] with the assumption that the historic police powers of the States were not to be superseded by the [FAAAA] unless that was the clear and manifest purpose of Congress…Section 14501(c)(2)(A) seeks to save from preemption state power in a field which the States have traditionally occupied.
536 U.S. at 424 (footnote omitted).
At the outset, the Court is unpersuaded that a state’s “safety regulatory authority” is limited to state-passed regulations or statutes. “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.” Desiano v. Warner-Lambert & Co., 467 F.3d 85, 86 (2d Cir. 2006) (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 544 (1992) (Blackmun, J., concurring in part and dissenting in part)). As a result, the Court finds that common law negligent brokering claims exist as “a valid exercise of the state’s police power to regulate safety.” Finley v. Dyer, No. 3:18-CV-78-DMB-JMV, 2018 WL 5284616, at *6 (N.D. Miss. Oct. 24, 2018); see also Lopez, 2020 WL 2065624, at *7 (giving a thorough explanation as to why the statutory construction of the FAAAA indicates that “regulatory authority” encompasses common law rights).
*4 The Court further finds that Plaintiffs’ negligent brokering claim constitutes an exercise of regulatory authority “with respect to motor vehicles.” “The Supreme Court has defined the phrase ‘with respect to’ as ‘concerning.’ ” Lopez, 2020 WL 2065624, at *7 (quoting Dan’s City Used Cars, Inc., 569 U.S. at 261). Here, the Court holds that a negligent brokering claim—which seeks damages for personal injury against a broker for negligently placing an unsafe carrier on the highway—“concerns motor vehicles and their safe operation.” Id.; see also Finley, 2018 WL 5284616, at *6. The Court is persuaded that this holding is aligned with the central purpose of the FAAAA, which “was enacted with the primary goal of minimizing economic regulation, not state police power over safety regulation.” Lopez, 2020 WL 2065624, at *7. As a result, the Court finds that Plaintiffs’ negligent brokering claims fall within the scope of the safety regulation exception and, thus, are not preempted by the FAAAA.
Id. at *5. Upon consideration, this Court is persuaded by the well-reasoned decision of Judge Ross and concludes that plaintiff’s negligent selection/hiring claim against Reliable falls within the scope of the safety regulation exception and is therefore not preempted by the FAAAA for the same reasons articulated in Uhrhan. See id.; Miller v. C.H. Robinson Worldwide, Inc., 2020 WL 5757013, at *11 (9th Cir. Sept. 28, 2020) (negligence claims against brokers that stem from motor vehicle accidents fall within safety exception of the statute and are not preempted by FAAAA). Therefore, Reliable’s motion for judgment on the pleadings on Count IV of the Second Amended Complaint will be denied.

Reliable next argues that plaintiff’s vicarious liability claim is preempted by the FAAAA for the same reasons it contends that the negligent brokering claims are preempted. In support of her vicarious liability claim, plaintiff alleges that BSB and Singh are the agents of Reliable, which held itself out as the motor carrier of the goods, and that Reliable exercised control over BSB and Singh by “communicating and coordinating directly with BSB and Singh” and “by imposing equipment requirements, reporting requirements, scheduling requirements, and payment requirements.” (Second Amended Complaint at p. 9-10, Count III, Paragraphs 10, 11).

Under respondeat superior, a principal can be held vicariously liable for the negligent acts of its agents, if such act is committed within the course and scope of the agency. Lindquist v. Scott Radiological Group, Inc., 168 S.W.3d 635, 655-56 (Mo. Ct. App. 2005); Scott v. SSM Healthcare St. Louis, 70 S.W.3d 560, 566 (Mo. Ct. App. 2002). Under Missouri law, the touchstone of respondeat superior is the existence of a master-servant relationship. Wyngarden v. Entertainment Coaches of America, No. 4:05CV2082 SNL, 2006 WL 8459125, at *1–2 (E.D. Mo. Apr. 7, 2006). The relationship exists if “ ‘the person sought to be charged as master had the right or power to control and direct the physical conduct of the other while working.’ ” Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60, 66 (Mo. Ct. App. 2003) (quoting Hougland v. Pulitzer Publ’g Co., 939 S.W.2d 31, 33 (Mo. Ct. App. 1997)). When a third party is using the services of another’s employee, that employee “may be the servant of two masters…at one time as to one act, if the service to one does not involve abandonment of the service to the other.” Brickner v. Normandy Osteopathic Hosp., Inc., 746 S.W.2d 108, 113 (Mo. Ct. App. 1988).

Plaintiff has alleged a principal-agent relationship between Reliable and BSB and Singh and seeks to hold Reliable liable for the actions of BSB and Singh. Reliable does not argue that the FAAAA’s safety exemption does not apply to the motor carrier that actually operates the vehicle. “As Congress excluded such conduct from the FAAAA’s preemption rule, it follows that a principal can be liable for its agents’ negligent operation of a motor vehicle.” Ying Ye v. Global Sunrise, Inc., 2020 WL 1042047, at *4 (N.D. Ill. Mar. 4, 2020). Plaintiff’s vicarious liability claim is therefore not preempted.

*5 Plaintiff’s allegations regarding the nature of Reliable’s control over BSB and Singh are sufficient at this stage of the proceedings to raise an inference that Reliable controlled the manner in which BSB and Singh carried out their work of transporting the goods in the tractor trailer. See Ying Ye, 2020 WL 1042047, at *5; Wyngarden, 2006 WL 8459125, at *2. Reliable’s motion for judgment on Count III of plaintiff’s Second Amended Complaint will therefore be denied.

For the foregoing reasons, the Court finds that plaintiff’s negligent brokering and vicarious liability claims are not preempted by the FAAAA and that plaintiff has alleged sufficient facts to withstand dismissal at this time.

Accordingly,

IT IS HEREBY ORDERED that defendant Reliable Transportation Solutions, LLC’s motion for judgment on the pleadings [80] is denied.

CATHERINE D. PERRY

UNITED STATES DISTRICT JUDGE
Dated this 26th day of October, 2020.

All Citations
Slip Copy, 2020 WL 6270743

Footnotes

1
Negligent selection/hiring claims are commonly referred to as “negligent brokering” claims. Uhrhan v. B&B Cargo, Inc., No. 4:17CV2720 JAR, 2020 WL 4501104, at *1 (E.D. Mo. Aug. 5, 2020).