November 2024

Patrick v. Velocity Rail Sols., Inc.

Commonwealth Court of Pennsylvania.

Leonard PATRICK, Petitioner

VELOCITY RAIL SOLUTIONS, INC. (Workers’ Compensation Appeal Board), Respondent

No. 652 C.D. 2023

Submitted July 5, 2024

Filed September 12, 2024

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE MATTHEW S. WOLF, Judge

Opinion

MEMORANDUM OPINION BY JUDGE WOJCIK

*1 Leonard Patrick (Claimant), appearing pro se, petitions for review from a May 17, 2023 order of the Workers’ Compensation Appeal Board (Board), affirming a decision of a workers’ compensation judge (WCJ), denying Claimant’s Claim Petition under the Workers’ Compensation Act (Act).¹ For the reasons that follow, we affirm.

On January 25, 2022, Claimant filed a Claim Petition, alleging that he sustained a perforated eardrum and a loss of hearing in his right ear, secondary to noise at work. Certified Record (C.R.) at 6.² Claimant sought total disability benefits from December 1, 2019, and ongoing. Id. at 8. Employer filed an Answer to the Claim Petition, denying all material allegations. Id. at 13. The matter was then assigned to a WCJ for disposition. Id. at 11.

Claimant appeared at a hearing held before the WCJ on April 12, 2022.³ Claimant testified that he was employed by Velocity Rail Solutions, Inc. (Employer) as a diesel and hydraulic technician. He fueled engines in train yards and other locations accessible to his tractor trailer. On October 6, 2019, Claimant’s second day training with his supervisor, Claimant was riding as a passenger in a tractor trailer with the window down. A line of box cars came down an incline, causing a loud noise. Claimant was 10 to 20 feet from the rails and was not wearing ear protection. He felt pain in his right ear. WCJ’s Decision, 10/28/22, Finding of Fact (F.F.) No. 1.⁴

That evening, while showering, Claimant suffered severe pain when soap or water entered his ear. The pain caused him to “buckle,” and he rolled out of the shower and crawled into bed. WCJ’s Decision, F.F. No. 1. The next morning, Claimant informed his supervisor that there was something wrong with his ear. Claimant’s supervisor sent him to Concentra, an urgent care facility. Id.

Claimant testified that at Concentra, a doctor cleaned his ear and told him it had a “perforation.” The doctor instructed him to see a specialist. WCJ’s Opinion, F.F. No. 1. Claimant continued to have ear pain and approximately one month after the incident, he treated with Dr. Barbara Kreel, an ear, nose and throat doctor. Dr. Kreel performed tests and examinations. Id.

Claimant continued working for Employer for the next two to four weeks, but he was often sick. Claimant was “let go” by Employer in December of 2019. WCJ’s Opinion, F.F. No. 1.

Claimant attributes several symptoms to the October 6, 2019 incident, including “a toppling feeling” and “low hearing out of [his] right ear.” WCJ’s Opinion, F.F. No. 1. Claimant testified that “[f]or a while there, there was pain. Oh, and my teeth. Like all my teeth. Like all my teeth have-I don’t know if it’s the air coming from the ear, but my whole mouth hurts.” Id. Claimant testified that he did not have these symptoms prior to October 6, 2019. Id.

*2 On cross-examination, Claimant testified that he is not currently working and that he is trying to establish a business in “finance and taxes.” WCJ’s Opinion, F.F. No. 1. Claimant denied receiving any “substantial” wages or money from the business. Id. Claimant testified that he was on welfare, was collecting “Covid money,” and that he had received unemployment compensation benefits. Id.

Following his employment with Employer, Claimant worked several jobs. Claimant testified that he could not, however, drive a tractor trailer because of the “rolling” feeling. WCJ’s Opinion, F.F. No. 1. Claimant tried working in emergency room registration but could not continue because of issues with his hearing. Claimant also attempted to work in a warehouse but was unsuccessful because he could not remain on his feet for extended periods due to “driver’s knee.” Id.

In addition to his own testimony, Claimant submitted Dr. Kreel’s testimony to the WCJ. Dr. Kreel testified that she is board certified in otolaryngology and first saw Claimant on November 4, 2019. Claimant told her that, approximately one month earlier, he had been exposed to a loud screeching noise at work. Claimant indicated that he had his ears flushed the following day and that exacerbated his pain and drainage. WCJ’s Opinion, F.F. No. 2.

Claimant complained of pain, intermittent tinnitus, intermittent drainage and some hearing loss in his right ear. On examination, Claimant’s right eardrum was wet and there was minor debris in his ear canal. Dr. Kreel removed the debris but was unable to see a perforation. Claimant’s treatment plan was to start drops to dry up the ear and to obtain an audiogram. WCJ’s Opinion, F.F. No. 2.

Claimant was again seen by Dr. Kreel on January 6, 2020. On that day, Claimant reported no drainage or pain. An audiogram and tympanogram were performed. Dr. Kreel explained that the tympanogram measured a large volume of air in Claimant’s ear canal, consistent with a hole in his eardrum. WCJ’s Opinion, F.F. No. 2.

At an April 13, 2020, virtual visit with Dr. Kreel, Claimant reported no drainage or pain. However, on June 4, 2020, Claimant called Dr. Kreel’s office and reported “10/10 pain with draining, blood, and watery wax from the ear after getting soap and water in it.” WCJ’s Opinion, F.F. No. 2.

On September 23, 2020, Dr. Kreel observed a “dry central tympanic membrane (TM) perforation ….” WCJ’s Opinion, F.F. No. 2. Dr. Kreel referred claimant to an otologist for surgical repair. Id.

On December 23, 2020, Claimant reported right ear pain and no drainage. On that date, Dr. Kreel’s diagnosis was TM perforation, mild conductive hearing loss, pain, and recurrent discharge. WCJ’s Opinion, F.F. No. 2.

Claimant was last seen by Dr. Kreel’s physician’s assistant on January 14, 2022. Claimant reported some recurrent drainage, trouble hearing, some ear pain, and a ringing noise. WCJ’s Opinion, F.F. No. 2.

When asked about causation, Dr. Kreel indicated that Claimant’s condition either resulted from his noise exposure at work or “possibly when he had his ear flushed the next day.” WCJ’s Opinion, F.F. No. 2. Dr. Kreel testified that Claimant has “about two percent” hearing loss “pursuant to the formula for compensation.” Id. Dr. Kreel further testified that Claimant has mild conductive hearing loss caused by the TM perforation. Id.

On cross-examination, Dr. Kreel admitted she could not say for sure whether the alleged noise exposure or the irrigation that was performed the following day caused the perforation. WCJ’s Opinion, F.F. No. 2. Dr. Kreel also testified that Claimant can work as long as he does not get water in his ears and is not having balance problems. Id.

*3 Employer submitted an October 8, 2019, clinic note from Dr. George Dixon at Concentra. The note reflects that Claimant presented with a complaint of two days of ear discomfort with soreness and decreased hearing. Claimant attributed the symptoms to “driving in a vehicle about ten feet away from a train with squealing breaks.” WCJ’s Opinion, F.F. No. 3. Claimant reported clear ear drainage with no blood. Id.

On examination, the right external ear canal was “tender, was erythematous, and had a discharge.” WCJ’s Opinion, F.F. No. 3. Dr. Dixon could not visualize the TM because of impacted ear wax. Id. An ear wax removal procedure was performed using Cerumenex and warm water irrigation. The clinic note indicates that “the procedure was successful and well-tolerated.” Id.

Following the irrigation, Dr. Dixon could see that the right TM “was red, had a loss of landmarks, had a diminished light reflex and was obscured, but had no perforation.” WCJ’s Opinion, F.F. No. 3. Dr. Dixon’s assessment was right otitis media (i.e., an ear infection). He instructed Claimant to begin an antibiotic and to follow up with an ear specialist. Id.

With regard to activity restrictions, the clinic note provides, “based on a careful exam of the patient, as well as the information obtained about their job duties and the mechanism of the injury, it does not appear that the presenting complaints arose out of [Claimant’s] job duties in the course of [Claimant] performing those duties.” WCJ’s Opinion, F.F. No. 3. Dr. Dixon determined that Claimant had a “cerumen” wax plug and a serious otitis media that was not work related. Id. Claimant was released to full work activity on the following day, October 9, 2019. Id.

Employer also submitted the testimony of Eugene Stec, M.D. Dr. Stec is board certified in otolaryngology, head, and neck surgery. He examined Claimant at Employer’s request on March 23, 2022. Claimant provided Dr. Stec with a history that was consistent with his testimony before the WCJ. Dr. Stec performed an exam and reviewed records, including the records from Concentra and Dr. Kreel. Dr. Stec also review Claimant’s audiogram results. WCJ’s Opinion, F.F. No. 4.

Dr. Stec’s report (attached to his deposition transcript) reflects that Claimant presented with complaints of right ear fullness, tinnitus, and intermittent imbalance, all of which are consistent with the physical findings of right chronic TM perforation. In Dr. Stec’s opinion, his physical findings of right TM perforation were “less than likely due to extreme loud noise exposure.” WCJ’s Opinion, F.F. No. 4. Dr. Stec opined that a noise exposure significant enough to cause a TM perforation would also more than likely have simultaneously caused significant permanent hearing loss.⁵ Id. Here, he noted, Claimant “has less than a [two percent] hearing loss on the right side. His binaural hearing handicap is essentially zero [pursuant to the 4th Edition of the AMA Guides to the Evaluation of Permanent Impairment].” WCJ’s Opinion, F.F. No. 4.

*4 The WCJ noted that Dr. Stec’s testimony was generally consistent with his report. During his testimony, however, Dr. Stec commented further on the October 8, 2019, Concentra clinic note, testifying that at some point after the alleged noise trauma event and seeing Dr. Kreel, Claimant sustained a perforated eardrum. Dr. Stec opined that the perforation could have resulted from the otitis media or the irrigation that was performed when he was at Concentra. Dr. Stec stressed, however, that Dr. Dixon’s Concentra clinic note specifically states that Claimant “tolerated water irrigation of his ear and that [Dr. Dixon] examined the eardrum afterwards and it was intact.” WCJ’s Opinion, F.F. No. 4. Regardless of causation, Dr. Stec believed that Claimant’s perforated eardrum would in no way prevent him from performing his full-duty job. Id.

On cross-examination, Dr. Stec agreed that a TM perforation can cause issues with balance, and that balance issues can be significant, especially if there is water in the ear causing nausea and pain. WCJ’s Opinion, F.F. No. 4. On re-direct, Dr. Stec testified that Claimant did not exhibit apparent or significant balance issues at the time Dr. Stec examined him. Id. Furthermore, the Concentra records did not mention Claimant having balance issues. Id.

The WCJ found Claimant’s testimony not credible to the extent that Claimant attributed his perforated right eardrum and related complaints to the alleged workplace noise trauma. The WCJ noted that Claimant’s testimony was contradicted and/or unsupported by the contemporaneous treatment records in several respects. In this regard, Claimant testified that Dr. Dixon at Concentra told Claimant he had a perforated eardrum; however, the clinic note from Concentra indicates that Claimant was diagnosed with acute otitis media, was prescribed antibiotics, and was instructed to follow up with an ear specialist. WCJ’s Opinion, F.F. No. 5. The WCJ stated, “[w]hether Claimant intentionally attempted to mislead the factfinder or simply confused the history of events, resolution of this case requires an intensive examination of the facts and Claimant’s testimony cannot be relied upon.” Id.

To the extent Claimant testified that he experienced excruciating pain after getting soap and water in his ear on the evening of the work incident, the WCJ noted that this history was not documented by either the Concentra clinic note or by Dr. Kreel’s initial note. Both experts in this case testified that water in the ear will cause pain if an eardrum is perforated; however, the October 8, 2019 Concentra clinic note documents that a procedure to remove a wax plug with water irrigation was well tolerated. WCJ’s Opinion, F.F. No. 5.

Regardless of causation, the WCJ maintained that the issue of Claimant’s disability is far from clear. Claimant testified that balance issues prevented him from driving, but there are no complaints of balance issues documented in the Concentra clinic note. Indeed, following his visit to Concentra, Claimant was released to full activity and continued working full duty as a driver for Employer for a number of weeks before being “let go.” WCJ’s Opinion, F.F. No. 5. Further, during the course of her testimony, Dr. Kreel did not mention that Claimant complained of balance issues throughout his multiple contacts with her between November 4, 2019, and January 14, 2022. Id.

The WCJ found it noteworthy that Claimant testified he suffered hearing loss significant enough “to thwart his attempts to work in certain occupations,” despite the unrefuted medical evidence indicating that Claimant’s degree of hearing loss is less than two percent on the right side and that his binaural hearing handicap is “essentially zero.” WCJ’s Opinion, F.F. No. 5. “The logical conclusion,” the WCJ stated, “is that Claimant is exaggerating his degree of hearing impairment, and this further undermines his overall credibility.” Id.

*5 The WCJ also addressed the credibility of Drs. Kreel and Stec. To the extent either doctor unequivocally opined that Claimant sustained a compensable injury due to noise exposure or treatment for noise exposure, the WCJ rejected the testimony as lacking foundation. Furthermore, to the extent that Dr. Kreel’s opinions were based on Claimant’s history of events as relayed to her, the WCJ found Claimant’s testimony to be neither reliable nor credible. WCJ’s Opinion, F.F. No. 6.

Ultimately, the WCJ denied and dismissed Claimant’s Claim Petition. On appeal, the Board affirmed.⁶ Claimant now appeals to this Court,⁷ challenging the WCJ’s determination that he did not suffer a disabling injury while working for Employer.⁸

At the outset, we note that in a claim petition proceeding, the claimant bears the burden of proving all elements necessary to support an award. Inglis House v. Workmen’s Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). The claimant bears the burden of proving that he suffers from a work-related injury that occurred in the course and scope of his employment and that the injury resulted in a disability. McCabe v. Workers’ Compensation Appeal Board (Department of Revenue), 806 A.2d 512, 515-16 (Pa. Cmwlth. 2002).⁹ The claimant must also establish that the disability continues through the pendency of the claim petition proceedings. Soja v. Workers’ Compensation Appeal Board (Hillis-Carnes Engineering Associates), 33 A.3d 702, 707 (Pa. Cmwlth. 2011). Where the causal relationship between the work incident and the disability is not obvious, unequivocal medical evidence is necessary to establish it. Dennis v. Inglis House (Workers’ Compensation Appeal Board), 303 A.3d 559, 564 (Pa. Cmwlth. 2023).¹⁰

In performing a substantial evidence analysis, we must view the evidence in a light most favorable to the party who prevailed before the WCJ. West Penn Allegheny Health System, Inc. v. Workers’ Compensation Appeal Board (Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth. 2021). Where both parties present evidence, it is immaterial that there is evidence in the record that supports a factual finding contrary to the one made by the WCJ. Id. The pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Id.

*6 The WCJ is the fact finder, and it is solely for the WCJ to assess credibility and resolve conflicts in the evidence. Hawbaker v. Workers’ Compensation Appeal Board (Kriner’s Quality Roofing Services), 159 A.3d 61, 69 (Pa. Cmwlth. 2017). It is well settled that a “WCJ may reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted.” Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1156 (Pa. Cmwlth. 1988). In rare instances where we review a credibility determination, “[w]e must view the reasoning as a whole and overturn the credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational.” Casne v. Workers’ Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).

Based on our review of the record, we agree with the WCJ and Board that Claimant did not meet his burden to establish that he was entitled to disability benefits. Claimant’s testimony concerning the workplace noise trauma and his alleged disability were belied by his medical records. Contrary to Claimant’s testimony, Dr. Dixon at Concentra did not diagnose him with a perforated eardrum. The Concentra clinic note does not mention a perforated eardrum; rather, it indicates that Claimant was found to have “a cerumen wax plug as well as an underlying serous [sic] otitis media which is not work related.” C.R. at 289. Furthermore, Claimant’s testimony that he experienced excruciating pain in the shower on the evening of the incident (implying that he was suffering from a perforated eardrum at that time) is also contradicted. The clinic note from Concentra, taken two days after the alleged incident, does not mention the shower episode. Furthermore, it is apparent that Claimant did not mention the shower episode to Dr. Kreel at his initial visit with her on November 4, 2019.¹¹ Because both experts in this case agree that a person with a perforated eardrum will experience intense pain when water enters the ear,¹² it stands to reason that Claimant would have related the details of the shower episode to the physicians he saw soon after the alleged noise incident. Even more telling is the fact that the Concentra clinic note reflects that Claimant’s ear was irrigated with water and that procedure was “well-tolerated.” C.R. at 290. Clearly, if Claimant had a perforated eardrum at the time of his visit with Concentra, he would have exhibited extreme pain when the irrigation was performed. That was not the case.

Based on these inconsistencies, the WCJ found Claimant’s testimony not credible. We are bound by that credibility determination on appeal. Hutz v. Workers’ Compensation Appeal Board (City of Philadelphia), 147 A.3d 45, 54 (Pa. Cmwlth. 2016).

Dr. Kreel’s testimony does not buttress Claimant’s case. Where, as here, a WCJ rejects a claimant’s testimony concerning the history of an alleged work-related injury, it follows that the expert medical testimony premised on that history is not competent. See Sewell v. Workers’ Compensation Appeal Board (City of Philadelphia), 772 A.2d 93, 98 (Pa. Cmwlth. 2001) (“[e]xpert medical testimony is not rendered incompetent merely because it is premised upon the expert’s assumption of the truthfulness of information provided, unless that information is not proven by competent evidence or is rejected by the WCJ.”).

*7 While the record reflects that Claimant has suffered some minimal hearing loss in his right ear as a result of a perforated eardrum, the fact remains that Claimant failed to present any competent or credible evidence supporting his assertions that the perforation was the result of a work-related incident. In the absence of any credible testimony supporting Claimant’s version of events, we must conclude that the WCJ properly dismissed his Claim Petition.

Accordingly, the order of the Board is affirmed.¹³

Judge McCullough did not participate in the decision of this case.

ORDER

AND NOW, this 12^th day of September, 2024, the May 17, 2023 order of the Workers’ Compensation Appeal Board is AFFIRMED.

All Citations

Slip Copy, 2024 WL 4163385 (Table)

Footnotes
¹	Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
²	Because the Certified Record was filed electronically and was not paginated, the page numbers referenced in this memorandum opinion reflect the electronic pagination.
³	Claimant was represented by counsel before the WCJ.
⁴	The WCJ’s Decision is found at page 21 of the C.R.
⁵	Dr. Stec testified: Q. In general, how loud of a noise or what type of event would you see in order to cause a perforation? A. Usually if it is — All right. So if it’s contact trauma, like, if you were in a bar fight and somebody punched or slapped you in your ear, that, that’s more of a concussive or a pressure like event where you are creating a cupping pressure down the ear canal, it doesn’t take all that much, but if it is pure noise and it is the concussive sound that is associated with the noise, it would be a rather large explosion. We saw a few of them when I was in the military from the Iraq war, but it’s — The concussive force from noise or a bomb and not direct contact would be enough to cause post-concussive syndrome, knock you out, completely impair your hearing on that side, and in certain instances it could kill you. So, it’s a significant concussive force that it would take from sound pressure alone to create a perforation like that. Deposition of Eugene Stec, M.D., 8/24/22, C.R. at 248-49.
⁶	Claimant appeared pro se before the Board.
⁷	This Court’s review is limited to determining whether the WCJ’s findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. DiLaqua v. City of Philadelphia Fire Department (*Workers’ Compensation* Appeal Board), 268 A.3d 1, 4 n.5 (Pa. Cmwlth. 2021). “Substantial evidence” is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Waldameer Park, Inc. v. *Workers’ Compensation* Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003).
⁸	By per curiam order dated November 6, 2023, Employer was precluded from filing a brief in this action for failure to comply with this Court’s order dated September 29, 2023.
⁹	Under the Act, the term “disability” is synonymous with loss of earning power. Donahay v. *Workers’ Compensation* Appeal Board (Skills of Central PA, Inc.), 109 A.3d 787, 792 (Pa. Cmwlth. 2015).
¹⁰	“An obvious relationship exists where the claimant’s injuries immediately and directly or naturally and probably result from a work incident; in such cases, the fact finder is not required to depend alone, or at all, upon medical testimony to find the causal connection.” Metelo v. Workmen’s Compensation Appeal Board (Old Original Bookbinders Restaurant), 642 A.2d 653, 655 (Pa. Cmwlth. 1994).
¹¹	During cross-examination, Dr. Kreel testified: Q. Okay. Now, there is no mention in that — in [Claimant’s] report to you of him getting soap and water in his ear the day after the alleged incident, correct? A. No. He just said that he had been using some peroxide and alcohol. When he got water in his ears, they hurt after he had had his ears flushed. Q. He didn’t specifically tell you about an incident at home where he got soap and water in his ear? A. No. Deposition of Barbara Kreel, M.D., 5/31/22, C.R. at 168.
¹²	See Deposition of Dr. Kreel, C.R. at 202; Deposition of Dr. Stec, C.R. at 260.
¹³	To the extent Claimant’s brief indicates that he is seeking to supplement the record in this action with additional facts and evidence, an appellate court is limited to considering only those facts that have been duly certified in the record on appeal. Kozicki v. Unemployment Compensation Board of Review, 299 A.3d 1055, 1063 (Pa. Cmwlth. 2023). “For purposes of appellate review, that which is not part of the certified record does not exist.” Id. Accordingly, we will not accede to Claimant’s request.

End of Document

Melerine v. Williams

United States District Court, W.D. Louisiana,

Shreveport Division.

Stacey MELERINE et al.

Ladarius WILLIAMS et al.

CASE NO. 5:22-CV-06127

Signed September 30, 2024

Attorneys and Law Firms

Alan T. Seabaugh, Seabaugh Joffrion et al., Shreveport, LA, Brandon Trey Morris, Elizabeth Ann Hancock, Joshua Lynn Powell, Justin Carey Dewett, Eric Matthew Whitehead, Morris Dewett, Shreveport, LA, Anna Chandler Higgins, Law Office of Anna Higgins, Shreveport, LA, for Stacey Melerine.

Alan T. Seabaugh, Seabaugh Joffrion et al., Shreveport, LA, Austin Taylor Townsend, Brandon Trey Morris, Elizabeth Ann Hancock, Joshua Lynn Powell, Justin Carey Dewett, Lane Scott Robinson, Meghan Marie Nolen, Eric Matthew Whitehead, Morris Dewett, Shreveport, LA, Anna Chandler Higgins, Law Office of Anna Higgins, Shreveport, LA, for Michael Melerine.

Lottie L. Bash, Christopher Michael Chesne, Faircloth Melton et al., Alexandria, LA, David J. Patin Jr., Stephenson Chavarri & Lambert, New Orleans, LA, Emily Fruge, Faircloth Melton & Sobel, Baton Rouge, LA, Reagan H. Moody, Taylor Wellons et al., Covington, LA, for Ladarius Williams, Duran Express LLC.

Frank K. Carroll, Mayer Smith & Roberts, Shreveport, LA, for Safeco Insurance Co. of Oregon.

Lottie L. Bash, Christopher Michael Chesne, Faircloth Melton et al., Alexandria, LA, Emily Fruge, Faircloth Melton & Sobel, Baton Rouge, LA, Jeff Nichols, McGlynn Glisson & Mouton, Baton Rouge, LA, Reagan H. Moody, Taylor Wellons et al., Covington, LA, for Ty & Tan Express LLC.

MEMORANDUM RULING & ORDER

JERRY EDWARDS, JR., UNITED STATES DISTRICT JUDGE

*1 Before the court is a Motion for Summary Judgment¹ by Prime Insurance Company (“Prime”) seeking to dismiss the claims against it on the basis that there is no coverage for defendant, Ty & Tan Express, L.L.C. (“Ty & Tan”) under the insurance policy issued by Prime. Ty & Tan has opposed the motion.² Safeco Insurance Co. of Oregon (“Safeco”), Plaintiffs’ uninsured motorist carrier, has also opposed the motion.³

For the reasons that follow, the Motion for Summary Judgment is GRANTED.

I. BACKGROUND

On August 11, 2021, a motor vehicle collision occurred on Interstate 20 in Bossier City, Louisiana, involving a 2005 Kenworth tractor-trailer (the “Truck”) driven by Ladarius Williams (“Williams”) and a 2017 Acura ILX owned by Michael Melerine and driven by Stacey Melerine (“Mr. Melerine” and “Ms. Melerine,” respectively, and collectively “Plaintiffs”).⁴ Plaintiffs filed suit in the Twenty-Sixth Judicial District Court, Parish of Bossier, on July 28, 2022, against Williams; Duran Express, LLC (“Duran”), Williams’s alleged employer; and Safeco for injuries sustained in the collision by Ms. Melerine and loss of consortium for Mr. Melerine.⁵ Subsequently, on October 26, 2022, Plaintiffs filed a First Amended Petition for Damages⁶ which added Ty & Tan, as Williams’s alleged employer,⁷ and Prime, Ty & Tan’s insurer, as Defendants.

Ty & Tan was issued insurance policy number SC20120690 (the “Policy”) by Prime on December 23, 2020.⁸ The Policy contained a schedule of covered autos with seven tractors and four trailers listed at the time of issuance which did not include the Truck involved in the accident.⁹

II. STANDARD OF REVIEW

Courts may grant summary judgment when “the movant shows there is no genuine dispute as to any material fact and the movant is entitled judgment as a matter of law.”¹⁰ A dispute about a material fact is genuine if “a reasonable jury could return a verdict for the nonmoving party.”¹¹ The moving party bears the burden of “showing there is no issue of genuine fact,” and when faced with a “properly supported motion for summary judgment,” the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.”¹² Parties must support their assertions by “citing to particular parts of materials in the record including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of this motion only), admissions, interrogatory answers, or other materials.”¹³ When reviewing evidence, “all justifiable inferences are to be drawn” in the non-moving party’s favor.¹⁴

III. CHOICE OF LAW

The court applies the “choice-of-law rules of the forum state in which the federal court sits” in diversity cases.¹⁵ Louisiana’s choice-of-law rules dictate “the law of the state where the insurance contract was issued and executed generally governs the interpretation of the contract.”¹⁶ The Policy issued by Prime to Ty & Tan was issued and executed in Utah.¹⁷ Therefore, Utah law should govern the interpretation of the Prime policy. Neither Safeco, nor Ty & Tan dispute the application of Utah law.

IV. INTERPRETATION OF INSURANCE POLICIES UNDER UTAH LAW

*2 Utah interprets insurance policies as contracts between the insured and the insurer.¹⁸ Utah takes a “four corners” approach to contract interpretation, determining the parties’ intention from “the plain meaning of the contractual language” when there is no ambiguity.¹⁹ The Utah Supreme Court has held contracts may be ambiguous when the contract is unclear, or terms are omitted or have “two or more plausible meanings.”²⁰ Terms are not ambiguous when “one party seeks to endow them with a different interpretation according to his or her own interests.”²¹

V. COVERAGE UNDER THE POLICY

Prime asserts that it is entitled to summary judgment because its Policy states that “coverage is strictly limited to scheduled Autos,” and the Truck involved in the accident is not listed as a Scheduled Auto.²² Neither Safeco, nor Ty & Tan dispute this fact.

Ty & Tan argues that Prime is not entitled to summary judgment because the Truck should have been listed as scheduled auto on the Policy.²³ Ty & Tan asserts that it requested its insurance broker, Reliance Partners (“Reliance”), to add the Truck to its Policy with Prime prior to the subject accident. However, unbeknownst to Ty & Tan, Reliance mistakenly duplicated the listing of another 2005 Kenworth truck that was already covered under the Policy, rather than the Truck involved in the accident.²⁴

Ty & Tan first discusses how vehicles are often added and removed from the Policy which adjusts the premium.²⁵ Ty & Tan then explains the timeline of the alleged relisting of the incorrect 2005 Kenworth truck by Reliance.²⁶ Finally, Ty & Tan discusses how it allegedly paid to insure eight tractors, but only seven were insured due to Reliance’s error.²⁷

Importantly, Ty & Tan fails to support these assertions with any competent evidence. Its Opposition contains no cites to the record, depositions, documents, electronically stored information, affidavits, declarations or stipulations.²⁸ Without adequate support, Ty & Tan’s assertions do not constitute sufficient evidence to create a genuine dispute of material fact as “ ‘conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy’ the nonmovant’s burden in a motion for summary judgment.”²⁹ Further, “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.”³⁰

With no indication of ambiguity, the court can only look to “the plain meaning of the contractual language” to determine the parties’ intentions.³¹ The Policy repeatedly states in plain language that coverage is limited to vehicles listed as a Scheduled Auto.³² Under Section IV of the Policy, there is a section dedicated to trailers acquired after the Policy begins that states a trailer “will only become a Scheduled Auto and [be] covered under this Policy if it is scheduled on the Policy by endorsement attached thereto.”³³ There is no ambiguity in the language of the Policy. The Policy required that the Truck be listed as a Scheduled Auto, and the Truck simply was not listed. Ty & Tan’s opposition fails to create a genuine dispute of material fact regarding whether the Truck involved in the accident was covered under the Policy.

VI. FORM MCS-90

*3 Attached to the policy is a Form MCS-90 endorsement. The language of the endorsement reads, in pertinent part:

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy or not each motor vehicle is specifically described in the policy … It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured.³⁴

While the “scope of coverage” is a “matter[ ] of state law,” the application of the MCS-90 is “governed by federal law.”³⁵ An MCS-90 “must be attached to any liability policy issued to a registered motor carrier pursuant to 49 U.S.C. §§ 13906(a)(1), 31139(b)(2).”³⁶

The Fifth Circuit has described “the obligation placed upon the insurer by the MCS–90 as one of suretyship,” and held that the obligation is meant to ensure judgments against negligent motor carriers are collectible.³⁷ Furthermore, an insurer’s obligation to pay under the MCS-90 is only triggered “when the policy to which it is attached provides no coverage to the insured.”³⁸

Safeco does not contest Prime’s assertion that the Truck is not listed as a scheduled auto, but rather Safeco seeks to point out that Prime must provide coverage under the MCS-90 endorsement attached to the Policy.³⁹ Although the application of the MCS-90 endorsement is determined by the coverage of the underlying policy, the MCS-90 endorsement does not modify the underlying Policy to expand its scope. Therefore, the attachment of the MCS-90 endorsement to the Policy does not create a genuine dispute of fact regarding coverage of the Truck because the MCS-90 endorsement is not relevant to the interpretation of the Policy.

Prime does not dispute that a lack of coverage under the Policy is what triggers the MCS-90 and that the MCS-90 is applicable in this case. However, Prime asserts Safeco misapprehends the MCS-90 to be primary liability insurance.⁴⁰ Prime further asserts accepting the MCS-90 as primary liability insurance would prevent Plaintiffs’ policy with Safeco from being triggered until the $750,000 provided by the MCS-90 is exhausted.⁴¹ Based on the parties’ pleadings at this point in this action, the interplay of the MCS-90 endorsement and the Plaintiffs’ policy with Safeco is unclear in the event a judgment for the Plaintiffs is rendered.

VII. CONCLUSION

*4 For the reasons set forth above,

The Motion for Summary Judgment⁴² is GRANTED to the extent there is no coverage under the Policy issued by Prime to Ty & Tan for the Truck involved in the collision giving rise to this suit.

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the claims against Prime Insurance Company are DISMISSED WITH PREJUDICE.

THUS DONE AND SIGNED this 30th day of September, 2024.

All Citations

Slip Copy, 2024 WL 4361594

Footnotes
¹	R. Doc. 60.
²	R. Doc. 67.
³	R. Doc. 66.
⁴	R. Doc. 1-1.
⁵	Id.
⁶	R. Doc. 1-2.
⁷	R. Doc. 1-1.
⁸	R. Doc. 60-2 at 1,5.
⁹	R. Doc. 60-2 at 6.
¹⁰	Fed. R. Civ. P. 56(a)
¹¹	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986).
¹²	Id. at 256.
¹³	Fed. R. Civ. P. 56(c)(1)(A).
¹⁴	Anderson, 477 U.S. at 255.
¹⁵	Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 512 (5th Cir. 2014).
¹⁶	Id.
¹⁷	R. Doc. 60-1 at 5.
¹⁸	Alf v. State Farm Fire and Cas. Co., 850 P.2d 1272, 1274 (Utah 1993).
¹⁹	Benjamin v. Amica Mut. Ins. Co., 140 P.3d 1210, 1213 (Utah 2006) (citing Saleh v. Farmers Ins. Exch., 133 P.3d 428, 434 (Utah 2006)).
²⁰	Alf, 850 P.2d at 1274.
²¹	Saleh, 133 P.3d at 433 (Utah 2006)
²²	R. Doc. 60-2 at 8.
²³	R. Doc. 67.
²⁴	Id.
²⁵	Id.
²⁶	Id.
²⁷	Id.
²⁸	Id.
²⁹	Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quoting Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)).
³⁰	Forsyth v. Barr. 19 F.3d 1527, 1337 (5th Cir. 1994) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, n.7 (5th Cir. 1992)).
³¹	Benjamin, 140 P.3d at 1213.
³²	R. Doc. 60-2 at 6 (“This policy provides coverage only for Scheduled Autos”); Id. at 8 (“Coverage is strictly limited to scheduled Autos”); Id. at 16 (“We will only cover Physical Damage […] caused by collision of a Scheduled Auto”).
³³	Id. at 19
³⁴	Id. at 40.
³⁵	T.H.E. Ins. Co. v. Larsen Intermodal Services, Inc., 242 F.3d 667, 672-74. (5th Cir. 2001).
³⁶	Id. at 670.
³⁷	Id. at 672.
³⁸	Id.; This approach to the MCS-90 has been adopted by the majority of Federal Circuits including the Tenth Circuit which Utah is a part of. See Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 88 (10th Cir. 2009).
³⁹	R. Doc. 66.
⁴⁰	R. Doc. 104.
⁴¹	Id.
⁴²	R. Doc. 60.

End of Document