2020 WL 5092827

SEE COURT OF APPEALS RULES 11 AND 12
Court of Appeals of Tennessee,
AT NASHVILLE.
Volodymyr HELYUKH, et al.
v.
BUDDY HEAD LIVESTOCK & TRUCKING, INC.
No. M2019-02301-COA-R9-CV
|
July 9, 2020 Session
|
FILED 08/28/2020
Appeal from the Circuit Court for Wilson County, No. 2017-CV-695, John D. Wootten Jr., Judge
Attorneys and Law Firms
Nathan E. Shelby and Jordan K. Gibson, Nashville, Tennessee, for the appellant, Buddy Head Livestock & Trucking, Inc.
Ronald J. Berke, Chattanooga, Tennessee, for the appellees, Volodymyr and Mariah Helyukh.
Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

OPINION
Frank G. Clement Jr., P.J.
*1 The dispositive issue in this personal injury action is whether the claims against the defendant trucking company for the tortious acts of its employee/truck driver are time-barred under Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010) or saved by the commencement of a new action under Tenn. Code Ann. § 28-1-105, Tennessee’s “savings statute.” After the plaintiffs commenced the new action, the company filed a motion to summarily dismiss the complaint, asserting the plaintiffs’ claims against the employee were procedurally barred before the new action was commenced. The trial court denied the motion because the first action was instituted before the plaintiffs’ right of action against the employee became extinguished by operation of law, and the second complaint was timely filed pursuant to the savings statute. For the same reason, we affirm and remand for further proceedings.

Facts and Procedural Background
On November 16, 2011, Volodymyr Helyukh, a long-distance truck driver, sustained injuries when he collided with an overturned tractor-trailer on Interstate 40 in western Tennessee. The overturned vehicle was owned by Buddy Head Livestock & Trucking (“Defendant”) and operated by its employee, Michael Heller.

In May 2012, Mr. Helyukh and his wife, Mariah Helyukh (collectively, “Plaintiffs”), commenced a personal injury action against Defendant and its employee/truck driver, Mr. Heller, in the Henderson County Circuit Court.1 The complaint alleged that Mr. Heller’s negligence caused Mr. Helyukh’s injuries and that Defendant was vicariously liable because Mr. Heller was acting in the course of his employment with Defendant. Summons was issued for both defendants, and Defendant was served; however, Plaintiffs were unable to obtain service of process on Mr. Heller.

In August 2013, Plaintiffs voluntarily dismissed their claims against Mr. Heller but continued to prosecute their claims against Defendant. In March 2015, Defendant moved for summary judgment based on Mr. Heller’s uncontradicted affidavit that stated an unidentified driver caused the accident by forcing Mr. Heller off the road. The trial court determined Mr. Heller’s affidavit negated the breach-of-duty element and granted Defendant’s motion. Plaintiffs appealed. On appeal, we found reasonable persons could differ as to whether Mr. Heller acted reasonably under the described circumstances and reversed the judgment. See Helyukh v. Buddy Head Livestock & Trucking, Inc., No. W2015-01354-COA-R3-CV, 2017 WL 1483303, at *4–5 (Tenn. Ct. App. Apr. 24, 2017).

Shortly after remand, Plaintiffs voluntarily dismissed the complaint. Three months after dismissing their Henderson County Circuit Court action, Plaintiffs commenced a new action against Defendant by filing their complaint in the Wilson County Circuit Court.

In October 2019, Defendant moved for summary judgment on the new action. Relying on the Tennessee Supreme Court’s decision in Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010), Defendant argued that it could no longer be held vicariously liable for Mr. Heller’s acts because Plaintiffs’ right of action against Mr. Heller was procedurally barred before Plaintiffs commenced the new action.

In its Order of December 18, 2019, the trial court denied the motion on the ground that Plaintiffs commenced the new action against Defendant in accordance with Tennessee’s savings statute:
Upon review of the briefs, argument of counsel, and the entire record, the court finds that Plaintiff[s’] claim against [Mr.] Heller, agent of [Defendant] …, was barred by operation of law at the time this lawsuit was commenced, on December 27, 2017. The Court also finds that there is no Tennessee precedent to guide its decision when a lawsuit is subject to dismissal under Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98, 103 (Tenn. 2010), but the lawsuit was filed in reliance upon Tenn. Code Ann. § 28-1-105 (the “saving statute”). Considering the “remedial” nature of the saving statute …, the Court holds that Defendant[’s] Motion for Summary Judgment should be denied.

*2 The trial court and this court subsequently granted Defendant permission to pursue an interlocutory appeal pursuant to Tenn. R. App. P. 9.

Standard of Review
The material facts in this case are undisputed. Thus, a “motion for summary judgment provides a proper vehicle for addressing the dispositive legal issues presented by the parties.” Abshure, 325 S.W.3d at 103. This court reviews a trial court’s ruling on a motion for summary judgment de novo with no presumption of correctness. See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, we must make a fresh determination of whether Defendant demonstrated “that it is entitled to a judgment as a matter of law.” Abshure, 325 S.W.3d at 103.

Analysis
Defendant contends the trial court erred by denying its Motion for Summary Judgment because Tennessee’s savings statute does not “save” a plaintiff’s legal remedy against a principal when the plaintiff’s right of action against the agent is already barred by the applicable statute of limitations. Plaintiffs respond that their claims were preserved by the savings statute, regardless of whether the limitations period on their claims against Mr. Heller had lapsed in the meantime. In summary, the issue before us is whether a common-law exception to the vicarious liability doctrine prevents a plaintiff from benefiting from the savings statute.

In Abshure, the Tennessee Supreme Court recognized several common-law exceptions to the general rule that a principal may be held vicariously liable for the negligent acts of its agent. See id. at 111. As relates to this case, the Court noted that a plaintiff may not assert a vicarious liability claim “when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts [the] vicarious liability claim against the principal.” Id. at 106 (emphasis added). In other words, a plaintiff may not assert “a new vicarious liability claim against a principal after [the plaintiff’s] claims against the agent have become barred by operation of law.” Id. at 111 (emphasis added). This “procedural limitation” reflects a traditional policy that “plaintiffs should not be permitted to engage in an ‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on the agent.” Id. at 110 (citations omitted).

Defendant contends the procedural limitation recognized in Abshure should be extended to the circumstances of this case, where Plaintiffs voluntarily dismiss and re-file their claims against Defendant after the claims against Mr. Heller are barred. Defendant reasons that the new action “must stand or fall on its own.” See Cartwright v. DMC-Memphis Inc., 468 S.W.3d 517, 528 (Tenn. Ct. App. 2014) (“Once re-filed pursuant to the savings statute, the ‘new action must stand or fall on its own.’ ” (quoting Robles v. Vanderbilt Univ. Med. Ctr., No. M2010-01771-COA-R3-CV, 2011 WL 1532069, at *3 (Tenn. Ct. App. Apr. 19, 2011))). We respectfully disagree.

In Abshure, the Court recognized that joinder of the agent is unnecessary to hold the principal vicariously liable for the agent’s negligent acts. 325 S.W.3d at 105. The Court also explained that “the extinguishment of the plaintiff’s claims against the agent, by voluntary dismissal or otherwise, ‘merely produce[s] the same effect as if the [agent] had never been sued.’ ” Id. at 111 (emphasis added) (quoting Rankhorn v. Sealtest Foods, 479 S.W.2d 649, 652 (Tenn. Ct. App. 1971)).

*3 The savings statute reads in pertinent part:
If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff’s right of action, … the plaintiff … may … commence a new action within one (1) year[.]
Tenn. Code Ann. § 28-1-105(a). Here it is undisputed that Plaintiffs’ action was commenced within the limitations period, the voluntary dismissal of the Henderson County case did not conclude Plaintiffs’ right of action, and Plaintiffs commenced the new action in Wilson County within one year of the voluntary dismissal without prejudice. Thus, Plaintiffs are entitled to the benefits afforded by the savings statute.

Defendant cites no authority for the proposition that a plaintiff may not take advantage of the savings statute to re-file a vicarious liability claim if the plaintiff did not join the agent in the first action. Thus, we conclude that Plaintiffs’ voluntary dismissal of their claims against Mr. Heller in the first action produced the same effect as if Mr. Heller had never been sued. See Abshure, 325 S.W.3d at 111.

It is also significant and well established that the savings statute is remedial and “must be given a broad and liberal construction.” See, e.g., Circle C Constr., LLC v. Nilsen, 484 S.W.3d 914, 919 (Tenn. 2016). In Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995), the Tennessee Supreme Court recognized this provision should be construed according to the statute’s spirit:
Many years ago, … this Court recognized that the statutory language must be applied according to the spirit of the statute. We said:
The statute has not merely letter but a spirit. That spirit is manifested in the history of the statute…. It is that a plaintiff shall not be finally cast out by the force of any judgment or decree whatsoever, not concluding his right of action, without an opportunity to sue again within the brief period limited.
Nashville, C & St. L. Ry. v. Bolton, 134 Tenn. 447, 184 S.W. 9, 11 (1916). Thus, this Court has long been committed to the view that the “savings statute” is remedial and should be liberally construed in furtherance of its purpose and in order to bring cases within its spirit and fair intention. Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993). In effect, the savings statute confers upon a plaintiff who files a second action within one year of a voluntary non-suit of a first action the same procedural and substantive benefits that were available to the plaintiff in the first action. Dukes v. Montgomery County Nursing Home, 639 S.W.2d at 913.
Id. at 912–13 (emphasis added).

The Plaintiffs commenced the first action within the one-year limitations period for personal injury actions. Several years later, Plaintiffs voluntarily nonsuited that action and re-filed three months later. Because the savings statute applies, we affirm the trial court’s decision to deny Defendant’s Motion for Summary Judgment.

In Conclusion
The judgment of the trial court is affirmed, and this matter is remanded for further proceedings. Costs of appeal are assessed against Buddy Head Livestock & Trucking, Inc.

All Citations
Slip Copy, 2020 WL 5092827

Footnotes

1
Plaintiffs also named a third driver, Jack Grady, and USF Holland as defendants in the first action. Plaintiffs later voluntarily dismissed their claims against them. Neither Mr. Grady nor USF Holland was named as a defendant in the new action, and they are not parties to this appeal.

Trekell v. Target Corp.
United States District Court for the Western District of Missouri, Western Division
September 16, 2020, Decided; September 16, 2020, Filed
No.: 4:18-CV-00662-DGK

Reporter
2020 U.S. Dist. LEXIS 170044 *

KENNETH TREKELL, Plaintiff, v. TARGET CORPORATION, Defendant.

ORDER DENYING SUMMARY JUDGMENT
This personal injury case arises from a motorcycle accident. Plaintiff Kenneth Trekell alleges a tractor-truck pulling a Target branded trailer caused the accident that resulted in his foot being fractured. The tractor-truck and trailer that allegedly caused the accident drove away without stopping, and the driver of the tractor-truck is unknown. Plaintiff argues Defendant Target Corporation is responsible. Target denies any liability.
Now before the Court is Defendant’s Motion for Summary Judgment (Doc. 74). Finding that Defendant has failed to create a record showing it is entitled to summary judgment as a matter of law, the motion is DENIED.

Standard
A movant is entitled to summary judgment if it “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). Material facts are those facts “that might affect the outcome [*2] of the suit under the governing law,” and a genuine dispute over material facts is one “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court makes this determination by viewing the facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Tolan v. Cotton, 572 U.S. 650, 656 (2014); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986). To survive summary judgment, the nonmoving party must “substantiate [her] allegation with sufficient probative evidence [that] would permit a finding in [her] favor based on more than mere speculation, conjecture, or fantasy.” Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (internal quotations and citations omitted).

Undisputed Material Facts
For purposes of resolving the pending summary judgment motion, the Court finds the undisputed material facts to be as follows.1
Plaintiff Kenneth Trekell was injured in a vehicular accident at or near the intersection of 27th Street and Southwest Trafficway in Kansas City, Missouri, at approximately 4:12 p.m. on February 18, 2018. Plaintiff was riding a motorcycle when a tractor-trailer turned onto Southwest Trafficway in front of the car that was in front of Plaintiff’ motorcycle, forcing the car to stop suddenly. This, in turn, caused Plaintiff to stop suddenly, [*3] launching him off his motorcycle, over the car, and into the tractor-trailer’s path. The tractor-trailer then drove over Plaintiff’s foot.
The tractor-trailer drove away from the accident without stopping, and the driver has not been identified. No witness to the accident identified any Target logo on the truck-tractor. Several witnesses, however, including one familiar with Target’s branding, saw a Target logo on the side of the trailer. Target does not lease its trailers to other entities.
Target did not own any truck-tractors located in, or traveling through, the Kansas City, Missouri, metropolitan area on February 18, 2018, nor did Target employ any truck drivers that were located in, or travelling through, the Kansas City, Missouri metropolitan area that day. The drivers of the truck-tractors that pull Target trailers are not Target employees.
The existing record does not establish whether Target was a certified carrier2 on or before February 18, 2018.3 The record is also silent as to whether Target placed on the trailer any signs identifying Target as a certified carrier.4
Target had contracted with three certified carriers, Dart Transit Company, Hogan Dedicated Services, LLC, and Ruan [*4] Transportation Corporation (collectively “the Carriers”), to make deliveries to its stores in the Kansas City, Missouri metropolitan area in February 2018. Each of the Carriers had contracts with Target on the day of the accident, and they have been carriers for Target for at least eight years.
The Amended Complaint (Doc. 38), alleges that at the time of the accident, the driver of the truck-tractor was driving in the course and scope of his employment with Target or at Target’s direction and control. ¶ 9. It contends that under Missouri Law, Target is vicariously liable for the driver’s actions. Id. at ¶ 12. It alleges Target is responsible for the driver’s negligence based on either a master/servant relationship, the doctrine of respondeat superior, or as a joint-venturer. Id. ¶ 10.

Facts relevant to determining Target’s right to control the Carriers.
Included in Plaintiff’s proposed additional uncontroverted facts are numerous proposed facts concerning the degree to which Target had a right to control the Carrier’s actions on the day of the accident. Target objects to these proposed facts on the grounds that they are “irrelevant and not material to the legal basis on which Target seeks [*5] summary judgment in that it is wholly immaterial to the identity of the carrier associated with the alleged tractor.” Reply at 9-15 (Doc. 77). The Court holds that insofar as these facts inform the degree to which Target had a right to control the Carrier’s actions, they are relevant to determining whether Target could have respondeat superior liability under Missouri law. Thus, Target’s objections are denied, and the following facts are undisputed for purposes of summary judgment.
Target gives the Carriers a weekly schedule of routes. Target prepares and sets the time and locations for these routes. Target expects the Carriers to be on time 99 percent of the time. It monitors their performance, and when they are late, the Carriers are “dinged” for performance.
Target’s trailers are required to comply with regulations of the United States Department of Transportation Federal Motor Carrier Safety Administration. Target tractor-trailers have Target license plates on them. Target is not aware of any other businesses, companies, or organizations that use trailers with the Target logo on them. Target trailers carry only regulated freight.
Target’s operating procedures are given to the Carriers. [*6] Target and the Carriers are “transportation partners.” If a carrier is in an accident, major or minor, it is required to be reported to Target.
Target trains the Carriers in the use of Target’s portal for information and tools on how to ship goods for Target. Target provides delivery procedures and responsibilities for the carriers. The Carriers’ employees sit in the Target Distribution Center and the carriers have an on-site manager at the Target Distribution Center. Target holds bi-weekly meetings with Target market leaders5 and the Carriers’ management.
Target’s agreements with the Carriers provide that it can take corrective action against a Carrier if it is not meeting expectations. Target allows the Carriers to subcontract out but can prohibit or limit a carrier’s ability to perform services through a substitute or a subcontractor.
Target requires the Carriers to enroll as a transportation provider on the website “Target’s Partners Online,” and Target trains the Carriers on the website’s use. Target can audit, review and copy the Carriers’ records at all reasonable times. Target also pays for the tolls incurred by the Carriers during transportation.
Target has some dedicated carriers [*7] that are specific to Target deliveries and loads. There are also times when Target trailers are stored at the Carriers’ locations.
Target has shipping visibility requirements and an electronic data interchange with data that is required of the Carriers and business rules providing notification to Target that the Carriers’ drivers have reached the pickup locations.
Target’s contracts with the Carriers require them to: perform repairs on Target trailers upon request, comply with Target’s requests to reconsign or divert shipments enroute, appropriately secure goods in transit, and not leave trailers unattended. They dictate submission of invoices and times, and provide that Target and the Carriers will share in losses.
Target provides a claims process for loss or damage as set forth in the contracts, which dictate that the Carriers investigate claims. At Target’s request, the Carriers participate in periodic business reviews scheduled by Target and, at Target’s direction, to be held at a Target location.

Discussion
Target moves for summary judgment on all three of Plaintiff’s theories.

I. The existing record does not establish whether Target was a certified carrier, and thus the Court cannot [*8] grant summary judgment to Defendant on “logo liability.”
“‘Logo liability’ is a species of vicarious liability by which a carrier is liable as a matter of law for injuries caused by a leased truck’s negligence, where that truck bears the carrier’s ICC logo.” Reliance Nat. Ins. Co. v Royal Indem. Co., No. 99 Civ. 1092 NRB, 2001 WL 984737, at *7 (S.D.N.Y. Aug. 24, 2001). Logo liability applies only against a certified carrier, and only where the certified carrier’s logo or placard is identified on the truck-tractor. See id.; Hearn v. ABF Freight Sys., — S.W.3d —, 2020 WL 4590171, at *1 (Mo. Ct. App. Aug. 11, 2020) (the “doctrine only applies to carrier-lessees”); Robertson v. Cameron Mut. Ins. Co., 855 S.W.2d 442, 449-50 (Mo. Ct. App. 1993) (recognizing that the carrier’s placard or signage had to be attached to the truck-tractor for vicarious liability to attach to the carrier); Parker v. Midwestern Distribution, Inc., 797 S.W.2d 721, 722 (Mo. Ct. App. 1990) (applying logo liability when the carrier’s logo was identified on the truck-tractor as well as the trailer). A company’s logo found solely on a trailer is not enough to base logo liability against that company. Cf. Robertson, 855 S.W.2d at 449-50.
Target argues it cannot be liable under a “logo liability” theory for two reasons: (1) it has never been a certified carrier, and (2) it has never possessed any signs or placards identifying it as a certified carrier, [*9] nor has it ever placed signs of any kind on any truck or trailer identifying it as a certified carrier. The existing record, however, does not establish that Target has never been a certified carrier, nor does it establish that it never placed any signs on a truck-tractor identifying it as a certified carrier. For summary judgment purposes, the record is silent on these facts. Thus, the Court cannot grant Target summary judgment on this claim.
This ruling, however, that does not mean Plaintiff’s logo liability claim will ultimately be submitted to a jury. The Court will not submit the issue at trial unless there is evidence presented during trial that Target was a certified carrier on the day of the accident and there was a Target sign on the truck-tractor involved in the accident.

II. Target has not established it is entitled to summary judgment on Plaintiff’s claim of respondeat superior.
Next, Target argues it is entitled to summary judgment on Plaintiff’s claim of respondeat superior liability because it “is not a carrier nor does it employ any truck drivers and as such, a claim of respondeat superior cannot be supported.” Suggestions in Supp. (Doc. 75) at 10. Plaintiff responds that [*10] whether Missouri law treats the driver of the truck as a Target employee under the doctrine of respondeat superior is a question for the jury.
The doctrine of respondeat superior holds an employer liable for the torts committed by its employees while they are acting within the scope of employment. Noah v. Ziehl, 759 S.W.2d 905 (Mo. App. E.D. 1988). An employer generally is not held vicariously liable, however, for the acts of independent contractors, who are not considered employees for purposes of respondeat superior. Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60, 66 (Mo. App. 2003).
Under Missouri law, whether an individual is an employee or an independent contractor is generally a question of fact. Huggins v. FedEx Ground Package System, Inc., 592 F.3d 853, 857 (8th Cir. 2010). But when the facts are undisputed and “only one reasonable conclusion can be drawn” from those facts, the issue may be decided as a matter of law. Id. (reversing district court’s determination that under Missouri law defendant FedEx could not be liable under respondeat superior for the actions of a third-party driver it characterized as an independent contractor, holding enough facts suggesting defendant had a right to control the driver so that the jury could find he was an employee for respondeat superior purposes.) The right to control “is the pivotal factor in distinguishing between employees [*11] and other types of workers. If the employer has a right to control the means and manner of a person’s service—as opposed to controlling only the results of that service—the person is an employee rather than an independent contractor.” Leach v. Board of Police Com’rs of Kansas City, 118 S.W.3d 646, 649 (Mo. Ct. App. 2003).
“The concept of the ‘right to control’ is more intricate in Missouri than most other states.” In re FedEx, 273 F.R.D. 424, 474 (N.D. Ind. 2008) (applying Missouri law). Courts applying Missouri law consider eight factors: “(1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the employer, and (8) the employment contract.” Wells v. Fedex Ground Package System, Inc., 979 F. Supp. 2d 1006, 1014 (E.D. Mo. 2013) (citing In re FedEx, 273 F.R.D. at 474; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726, 729-30 (1937); Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 559 (Mo. Ct. App. 2001)). No one factor is dispositive; a court considers the facts as a whole. Id. (citing Hamilton v. Palm, 621 F.3d 816, 818-19 (8th Cir. 2010) (“Under Missouri law, the critical right-to-control issue is affected by many factors “none of which is in itself controlling.”))
Unfortunately, the Court cannot apply this test on the existing record. While Plaintiff arguably alludes to the eight-factor test (by citing long passages from Huggins which mentions that Missouri courts consider the factors set forth [*12] in the Restatement (Second) of Agency, which are similar to those in the eight-factor test), and has placed some facts relevant to the issue on the record, Plaintiff has not applied these facts to the law. For example, Plaintiff observes Huggins discussed factors for the jury to consider “including safety and quality procedures, daily documentation, place of work, itineraries, what terminals were used for departure and return, [and] length of time of employment,” but Plaintiff does not explain how these factors apply in to this case. Resp. at 16 (Doc. 76). Instead, Plaintiff summarily concludes, “there is an abundance of evidence that would support Plaintiff’s claim of respondeat superior as set forth in Plaintiff’s additional facts and the language of the contracts themselves.” Resp. at 16.
Similarly, Target’s brief, instead of identifying the relevant test and applying it to the facts, restates its prior argument that it cannot be liable because (1) it is not a carrier, (2) Plaintiff has not identified a carrier logo on the tractor, and (3) “the identification of the carrier by its logo on the tractor is required to establish vicarious liability for the negligence of the driver.” [*13] This argument is unavailing because Missouri law concerning respondeat superior does not have special rules that apply in the context of tractor-truck drivers. While Missouri law on logo liability conditions a defendant’s liability on the defendant being a carrier and the tractor bearing the carrier’s logo, it does not condition a defendant’s responsibility under a theory of respondeat superior on it being a carrier and the tractor bearing its logo. Whether a defendant can be liable under a respondeat superior theory turns on the eight-factor test outlined above.
While both parties’ briefs are somewhat lacking on this issue, Defendant has the burden of showing that it is entitled to judgment as a matter of law. It has failed to demonstrate that the truck driver could not as a matter of law be its employee for respondeat superior purposes, so its motion is denied with respect to this claim.

III. Target has not established it is entitled to summary judgment on Plaintiff’s joint venture claim.
Finally, Target argues it is entitled to summary judgment on Plaintiff’s joint venture claim. Generally speaking, “[a] joint venture is an association of two or more persons to carry out a single business [*14] enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.” Barfield v. Sho-Me Power Elec. Coop., No. 11-CV-04321-NKL, 2013 WL 12145822, at *2 (W.D. Mo. Apr. 15, 2013) (internal quotation omitted). The elements of a joint venture are: “(1) an express or implied agreement among members of the association; (2) a common purpose to be carried out by the members; (3) a community of pecuniary interest in that purpose; and, (4) each member has an equal voice or an equal right in determining the direction of the enterprise.” Ritter v. BJC Barnes Jewish Christian Health Sys., 987 S.W.2d 377, 387 (Mo. Ct. App. 1999). While the existence of a joint venture may be implied or inferred from the acts and conduct of the parties showing that they entered into one, the parties must intend to create a joint venture. Barfield, 2013 WL 12145822, at *2.
Particularly relevant to whether Target could be liable in this case under a joint venture claim are the following: “[C]ourts applying Missouri law have been especially hesitant to imply the existence of a joint venture where the parties are corporations.” Id. at 3 (collecting cases). Further, the “community of pecuniary interest” element “requires that the parties have a right to share in the profits and a duty to share in the losses.” Id. at 4. Sharing an economic interest is not enough. Id. Finally, [*15] the requirement that each member has an equal voice or equal right in determining the direction of the enterprise means each member in the joint venture must share equal control over the enterprise. Id. at 5.
The existing factual record is too undeveloped for the Court to grant Defendant summary judgment on this claim. There are simply insufficient facts here. Thus, this claim survives summary judgment. That said, at trial the Court will not submit the question of joint venture liability to the jury unless sufficient evidence is presented on each element.

Conclusion
Defendant Target’s Motion for Summary Judgment (Doc. 74) is DENIED.
IT IS SO ORDERED.
Date: September 16, 2020
/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT