2020 WL 5960684

United States District Court, E.D. Louisiana.
RAY S. MARCELLO
v.
TYRONE D. HOLLAND, ET AL.
CIVIL ACTION 19-14609
|
10/08/2020

CARL J. BARBIER, UNITED STATES DISTRICT JUDGE

SECTION: “J” (5)

ORDER & REASONS
*1 Before the Court are a Motion for Summary Judgment (Rec. Doc. 16) filed by Defendant Jarrett Justice d/b/a Dansk Express LLC (“Dansk”), an opposition thereto (Rec. Doc. 17) filed by Plaintiff Ray S. Marcello, and a reply (Rec. Doc. 22) filed by Dansk. Having considered the motion and memoranda, the record, and the applicable law, the Court finds that the motion should be GRANTED.

FACTS AND PROCEDURAL BACKGROUND
This litigation arises from injuries allegedly sustained by Plaintiff in a motor vehicle accident on December 5, 2018, in Lafourche Parish, Louisiana. Plaintiff contends that his vehicle collided with a tractor-trailer operated by Defendant Tyrone Holland (“Holland”) when Holland made an improper U-turn and pulled directly in front of Plaintiff without leaving him time to stop. Dansk has stipulated that Holland was acting in the course and scope of his employment with Dansk when the collision occurred.1

Plaintiff filed suit against Holland, Dansk, and various insurers, raising, as relevant here, claims of direct negligence against Holland and claims of direct negligence and vicarious liability against Dansk. Plaintiff’s direct negligence claims against Dansk include negligent entrustment, negligent hiring, and negligent supervision.2 After the case was removed to this Court, Dansk filed the instant motion for summary judgment. The motion is before the Court on the briefs and without oral argument.

LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56); see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, a court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that “a reasonable jury could not return a verdict for the nonmoving party.” Delta, 530 F.3d at 399.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue for trial. See id. at 325; Little, 37 F.3d at 1075.

*2 When examining matters of state law, the Court will employ the principles of interpretation used by the state’s highest court. Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 564 (5th Cir. 2010). Mindful of Louisiana’s distinction between primary and secondary sources of law, the Court will begin its analysis with reliance on the Louisiana Constitution and statutes before looking to “ ‘jurisprudence, doctrine, conventional usages, and equity, [which] may guide the court in reaching a decision in the absence of legislation and custom.’ ” Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 546 (5th Cir. 2004) (quoting LA. CIV. CODE art. 1 rev. cmt. b). If the Court must make an “Erie guess” on an issue of Louisiana law, the Court will decide the issue the way that it believes the Supreme Court of Louisiana would decide it. Id. The Court is not strictly bound by the decisions of the state intermediate courts and may disregard them if the Court is “convinced that the Louisiana Supreme Court would decide otherwise.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).

DISCUSSION
Dansk seeks dismissal of Plaintiff’s direct negligence claims against it. Dansk argues that, under Louisiana law, a plaintiff cannot maintain direct negligence claims against an employer where the employer has admitted that the defendant-employee was acting within the course and scope of his employment with the employer and the employer would be vicariously liable for the employee’s alleged negligence.

While the Supreme Court of Louisiana has not ruled on this issue, the First, Third, and Fifth Circuits agree with Dansk’s position. See Elee v. White, 19-1633 (La. App. 1st Cir. 7/24/20), ___ So. 3d ____, 2020 WL 4251974, at *4; Landry v. Nat’l Union Fire Ins. Co. of Pittsburgh, 19-337 (La. App. 5th Cir. 12/30/19), 289 So. 3d 177, 185-86, writ denied, 20-188 (La. 5/1/20), 295 So. 3d 945; see also Libersat v. J&K Trucking, Inc., 00-192 (La. App. 3d Cir. 10/11/00), 772 So. 2d 173, 179 (affirming trial court’s refusal to give jury instructions on negligent hiring and training), writ denied, 01-458 (La. 4/12/01), 789 So. 2d 598. As explained by the court in Elee:
The summary dismissal of [the plaintiff’s] direct negligence claim will not impinge on the factfinder’s role to determine facts and assess fault. This is because [the plaintiff’s] direct negligence claim against [the employer] is essentially subsumed in the direct negligence claim against [the employee]; an employee driver’s negligence may include his employer’s negligence for lapses in hiring, training, and supervision. On the other hand, if [the employee] was not negligent in causing the subject accident, then a factfinder could not reasonably find that [the employer’s] failure to properly hire, train, or supervise him was a legal cause of the accident.
2020 WL 4251974, at *3 (citations omitted). This Court, as well as the Western and Middle Districts of Louisiana, have repeatedly adopted this view. See, e.g., Rivera v. Robinson, No. 18-14005, 2020 WL 5658899, at *2 (E.D. La. Sept. 23, 2020) (collecting cases); see also Wilcox v. Harco Int’l Ins., No. 16-187, 2017 WL 2772088, at *3 (M.D. La. June 26, 2017); Dennis v. Collins, No. 15-2410, 2016 WL 6637973, at *8 (W.D. La. Nov. 9, 2016). But see Gordon v. Great W. Casualty Co., No. 2:18-CV-00967, 2020 WL 3472634, at *4-5 (W.D. La. June 25, 2020).

Plaintiff contends that the instant case is distinguishable because Defendants have been “evasive” about insurance coverage and there is a possibility that Dansk may be covered for direct negligence claims against it but not for the vicarious liability claims. However, Plaintiff has failed to create a genuine dispute of material fact on this issue because he has failed to produce a copy of the insurance policy, which Defendants represent has been produced to Plaintiff in discovery.3 Additionally, although he notes that the Supreme Court of Louisiana has not ruled on this issue, Plaintiff does not argue that it would decide the issue otherwise. See In re Katrina Canal Breaches, 495 F.3d at 206. Rather, as Defendants point out, the Supreme Court of Louisiana recently had an opportunity to review this issue and declined to do so. See Landry, 295 So. 3d 945. “Although the denial of a writ does not have jurisprudential value, it demonstrates that the Supreme Court of Louisiana had the opportunity to address the question at hand but declined to do so.” Rivera, 2020 WL 5658899, at *4.

*3 Accordingly, the Court agrees with the Third Circuit’s statement of the rule:
[A] plaintiff cannot maintain a direct negligence claim, such as negligent hiring, training, supervision, etc., against an employer, while simultaneously maintaining a claim against the alleged negligent employee for which the plaintiff seeks to hold the employer vicariously liable, after the employer has admitted that the employee was in the course and scope of employment at the time of the alleged conduct.
Elee, 2020 WL 4251974, at *4. Because Plaintiff has asserted negligence claims against Holland, the employee, as well as direct negligence and vicarious liability claims against Dansk, the employer, and Dansk has admitted that Holland “was acting in the course and scope of his employment with” Dansk when the collision between Holland and Plaintiff occurred,4 Plaintiff’s direct negligence claims against Dansk must be dismissed.

CONCLUSION
Accordingly,

IT IS HEREBY ORDERED that Dansk’s Motion for Summary Judgment (Rec. Doc. 16) is GRANTED, and Plaintiff’s direct negligence claims against Dansk are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 8th day of October, 2020.

CARL J. BARBIER

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2020 WL 5960684

Footnotes

1
(Rec. Doc. 15).

2
(Petition for Damages, Rec. Doc. 1-4, at 3).

3
Nonetheless, Defendants have provided the Court with a copy of the policy. (Rec. Doc. 22-1).

4
(Rec. Doc. 15).

2020 WL 5985981

United States District Court, W.D. Louisiana,
Alexandria Division.
COREY ALLEN
v.
ROYAL TRUCKING COMPANY, EMMETT BATTLE, KANSAS CITY SOUTHERN RAILWAY COMPANY, AND THE CHEROKEE INSURANCE COMPANY
CIVIL ACTION NO. 18-420
|
Filed 10/08/2020

MEMORANDUM RULING
S. MAURICE HICKS, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT
*1 Before the Court is a Motion for Partial Summary Judgment (Record Document 132) filed by Defendant Royal Trucking Company (“Royal”). Royal’s motion seeks dismissal of Plaintiff Cory Allen’s (“Plaintiff” or “Allen”) and Cross-Claimant Kansas City Southern Railway Company’s (“KCS”) claims of “negligent hiring, training, instruction, supervision, following and enforcing proper procedures, rules, and industry standards, entrustment, and retention and unknown alleged violations of federal law, regulation and rules.” Record Document 132. Royal contends the claims of direct negligence against it must be dismissed because Royal has stipulated that its employee, Emmett Battle (“Battle”), was acting within the course and scope of his employment at the time of the incident. For the reasons set forth below, Defendant’s motion is hereby GRANTED. Plaintiff and KCS’s claims for negligent hiring, training, and supervision against Royal are DISMISSED.

FACTUAL AND PROCEDURAL BACKGROUND
On or about January 22, 2018, Plaintiff was working as an engineer on a KCS train. Plaintiff became injured when Royal’s tractor-trailer, driven by Battle, collided with the train. See Record Document 1. Plaintiff filed claims against Royal and Battle for Battle’s negligent operation of the tractor trailer, Royal’s negligent entrustment, and Royal’s negligent hiring of Battle. See id. at 3. Pursuant to the Federal Employers’ Liability Act, 45 U.S.C. § 51, Plaintiff also filed a claim against his employer, KCS, for failing to provide a safe workplace. See id. KCS, in its answer to Allen’s Complaint, filed a cross claim against Royal asserting Royal’s negligent hiring, training, and supervision in addition to Battle’s negligent operating caused Allen’s injuries. See Record Document 5.1

On April 8, 2020, pursuant to an order by Magistrate Judge Hornsby, Royal stipulated that Battle was acting within the course and scope of his employment with Royal when the incident occurred. See Record Document 131. Royal then filed the instant Motion for Partial Summary Judgment on April 9, 2020. See Record Document 132. Plaintiff and KCS filed responses opposing the motion. See Record Documents 136 & 137. Plaintiff and KCS urge this Court to refrain from deciding the present motion until Royal has fully complied with Magistrate Judge Hornsby’s order to contact all counsel regarding whether liability or course and scope will be an issue going forward. To date, Royal has stipulated to course and scope but has failed to explicitly state a position on liability.

LAW AND ANALYSIS

I. Summary Judgment Standard
“A partial summary judgment order is not a final judgment but is merely a pre-trial adjudication that certain issues are established for trial of the case.” Streber v. Hunter, 221 F.3d 701, 737 (5th Cir.2000). Partial summary judgment serves the purpose of rooting out, narrowing, and focusing the issues for trial. See Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1415 (5th Cir.1993).

*2 Rule 56 of the F.R.C.P. provides that the court “shall 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.” F.R.C.P. 56(a). In a summary judgment motion, “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings … [and] affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (U.S. 1986) (internal quotations and citations omitted). “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may … grant summary judgment.” F.R.C.P. 56(e)(3).

If the movant meets this initial burden, then the non-movant has the burden of going beyond the pleadings and designating specific facts that prove that a genuine issue of material fact exists. See Celotex, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554 (U.S. 1986); see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A non-movant, however, cannot meet the burden of proving that a genuine issue of material fact exists by providing only “some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d 1069, 1075 (5th Cir. 1994).

II. Analysis
Louisiana Civil Code article 2320 states in relevant part that “masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” La. C.C. art. 2320. Essential to establishing this theory of vicarious liability is determining whether the employee’s negligence occurred within the course and scope of his employment. See Olmeda v. Cameron Intern. Corp., 139 F.Supp.3d. 816, 834 (E.D. La. 2015). Because of its stipulation to course and scope, Royal has confirmed that it is vicariously liable for Battle’s potential negligent conduct. However, Royal argues that because it has accepted responsibility for Battle, it cannot be held liable for negligent hiring, training, and supervision as claimed by Plaintiff and KCS. See Record Document 132.

Royal relies on this Court’s previous holding in Dennis v. Collins to support its theory that all direct negligence claims must be dismissed. In Dennis, Collins, an employee of Greyhound, was driving a bus when he collided with Dennis’s vehicle. See Dennis v. Collins, 2016 WL 6637973 (W.D. La. 11/9/16). Dennis filed a claim against Collins for negligent driving and against Greyhound for negligent supervision, teaching, and training of Collins. See id. at *1. Greyhound moved for partial summary judgment arguing that negligent training and supervision causes of action against an employer are “subsumed within a negligence cause of action against the employee” if it is clear the employee acted negligently in the course and scope of employment. Id. at *4. This Court, agreeing with Greyhound’s argument, held that a plaintiff may not simultaneously maintain independent causes of action in tort against both an employee and an employer for the same incident when the employer stipulates that the employee acted within the course and scope of employment. See id. at *7.

In further explanation of its holding in Dennis, this Court also relied on Libersat v. J & K Trucking, Inc., from the Louisiana Third Circuit Court of Appeal. See Libersat v. J & K Trucking, Inc., 00-00192 (La. App. 3 Cir. 10/11/00); 772 So.2d 173. Libersat involved a trailer driver who collided with Mr. Libersat when the trailer driver attempted to make a U-turn. See id. at 174. In the appellate court, Mr. Libersat’s surviving spouse argued that the trial court failed to properly instruct the jury on the employer’s potential liability for improper hiring and training. See id. at 178. The Libersat court reasoned, however, that if the driver-employee was not found negligent “then no degree of negligence on the part of [the employer] in hiring [the driver] would make [the employer] liable to the Appellants.” Id. This Court interpreted the Third Circuit’s decision to mean that a complete lack of training or supervision could not be the but-for or legal cause of Dennis’s injuries absent some level of negligence on the part of the employee. See Dennis, 2016 WL 6637973 at *7.

*3 As in Dennis, the present motion for partial summary judgment requires the Court to answer whether there is a genuine issue of material fact on each element of Plaintiff and KCS’s negligent hiring, training, and supervision claims against Royal. This Court finds there is no genuine issue of material fact as to the elements of cause-in-fact or legal cause regarding the negligent hiring, training, and supervision claims. Royal’s liability to Allen for the injuries he suffered hinges on whether Battle acted negligently. In other words, if the trier of fact finds Battle’s negligence to be the cause-in-fact and legal cause of the harm suffered by Allen, then Royal is negligent. If Battle is not negligent, then no amount of negligence on the part of Royal in hiring, training, and supervising Battle could have been the cause-in-fact or legal cause of Allen’s injuries. Royal’s Motion for Partial summary Judgment is GRANTED.

CONCLUSION
Based on the foregoing reasons, Royal’s Motion for Summary Judgment (Record Document 132) is hereby GRANTED.

An order consistent with the terms of the instant Memorandum Ruling shall issue herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this the 8th day of October, 2020.

All Citations
Slip Copy, 2020 WL 5985981

Footnotes

1
Plaintiff subsequently filed an Amended Complaint (Record Document 20) realleging the previous claims while adding defendant Cherokee Insurance Company.