Superior Court of New Jersey,

Appellate Division.

NEW JERSEY MANUFACTURERS INSURANCE GROUP/GARRISON LANGE, Plaintiff-Respondent,

v.

HOLGER TRUCKING CORPORATION and ARI Insurance Companies, Defendants-Appellants.

 

Argued Sept. 29, 2010.

Decided Jan. 7, 2011.

 

Before Judges FISHER, SAPP-PETERSON and SIMONELLI.

 

William S. Bloom argued the cause for appellants (Methfessel & Werbel, attorneys; Mr. Bloom, on the brief).William H. Hanifen, IV, argued the cause for respondent.

 

The opinion of the court was delivered by

 

FISHER, J.A.D.

N.J.S.A. 39:6A-9.1 requires that an insurer, which has provided personal injury protection (PIP) benefits, must commence suit for reimbursement from a tortfeasor within two years of “the filing of the claim.” The parties dispute whether the claim is filed when an insured or health care provider first requests reimbursement for PIP benefits or when the insured submits a claim form requested by the insurer-a determination critical to the survival of this action. After closely examining this difficult issue, we conclude the Legislature most likely intended that the “claim” is “filed” when the latter event occurs.

 

The facts are not in dispute. Garrison Lange was injured in an automobile accident in Sayreville on December 1, 2006, when his vehicle was struck by a vehicle owned by Holger Trucking Company and driven by a Holger employee. That day, Lange contacted his automobile insurer, plaintiff New Jersey Manufacturers Insurance Group (NJM), advising of the accident and claiming he had sustained neck and back injuries. On that same day, NJM created a file for Lange’s PIP claim and assigned it a file number.

 

On December 4, 2006, Michael Feher, an NJM adjuster, mailed Lange a PIP application to be completed and returned. That same day, Lange was first treated by Dr. Edward Palluzzi, a chiropractor. On December 6, 2006, Dr. Palluzzi submitted medical bills to NJM for treatment rendered on December 4 and 5, 2006. NJM received Dr. Palluzzi’s bills on December 8, 2006.

 

On December 8, 2006, Dr. Palluzzi sent NJM a letter of medical necessity, which referenced the file number NJM had assigned to Lange’s PIP file, asserting that Lange’s right and left shoulders required adjustment. Dr. Palluzzi requested NJM’s approval of a one-month treatment plan, which was authorized by Feher on December 11, 2006. Dr. Palluzzi forwarded additional bills for treatment rendered on December 8 and 11, 2006, which were received by NJM on December 20, 2006.

 

On December 20, 2006, as requested, Lange sent NJM a completed PIP application, which NJM received on December 26, 2006.

 

On December 24, 2008, NJM filed its complaint in this action against Holger and its insurer, ARI Insurance Companies, seeking reimbursement of $53,323.29 in PIP benefits NJM paid on Lange’s behalf. Because NJM’s suit was filed more than two years after Lange first advised NJM of the accident and more than two years after NJM opened a file, assigned it a number, received medical bills and treatment plans regarding Lange’s treatment, and approved Lange’s treatment plan, Holger and ARI (defendants) moved for summary judgment based on N.J.S.A. 39:6A-9.1, which states in pertinent part:

 

An insurer … paying [PIP] benefits … or medical expense benefits … as a result of an accident occurring within this State, shall, within two years of the filing of the claim, have the right to recover the amount of payments from any tortfeasor who was not, at the time of the accident, required to maintain [PIP] protection or medical expense benefits coverage at the time of the accident.

 

[Emphasis added.]

 

NJM countered that the suit was timely filed because it did not receive Lange’s formal PIP application until December 26, 2006, slightly less than two years before the filing of this suit. The trial judge agreed with NJM’s proposed construction of the statute and denied defendants’ motion. We affirm.

 

N.J.S.A. 39:6A-9.1 does not expressly define what is meant by “the claim” as used in this context. We have in the past broadly defined “claim” as “ ‘a challenging request, a demand of a right, a calling upon another for something due, a demand for benefits or payment, a privilege to something, a title to something in the possession of another….’ ” Burlington Cnty. Abstract Co. v. QMA Assocs., 167 N.J.Super. 398, 404, 400 A.2d 1211 (App.Div.) (quoting Lamberton v. Travelers Indem. Co., 325 A.2d 104, 107 (Del.Super.Ct.1974), aff’d, 346 A.2d 167 (Del.1975)), certif. denied, 81 N.J. 280, 405 A.2d 824 (1979). The statutory framework for the rendering of PIP benefits, however, fully recognizes that an insured or health care provider may provide many such claims, and, as a result, there is significant uncertainty about which of the many demands for payment that might be submitted in a given case-or were submitted here-constitutes “the” claim that commenced the limitation period prescribed by N.J.S.A. 39:6A-9.1. For example, Dr. Palluzzi’s various bills may be viewed as “claims,” because they were submitted with the intent that NJM provide payment within the brief time frame contained in N.J.S.A. 39:6A-5(g). In addition, NJM requested Lange’s submission of a completed PIP claim form, which might also be viewed as “the claim” referred to in N.J.S.A. 39:6A-9.1. Accordingly, in casting about the many demands that may be asserted in this setting for “the claim” that the Legislature referred to in N.J.S.A. 39:6A-9.1, we must resort to the familiar guidelines of statutory construction.

 

In interpreting a statute, we generally look to the particular wording of the statute, see, e.g., Germann v. Matriss, 55 N.J. 193, 220, 260 A.2d 825 (1970) (recognizing that “the meaning of words may be indicated and controlled by those with which they are associated”), as well as the overall sense and purpose of the statute, see, e.g., Lesniak v. Budzash, 133 N.J. 1, 8, 626 A.2d 1073 (1993) (holding that courts should consider the “legislative policy underlying the statute and any history which may be of aid”). These factors should also be considered in conjunction so that “a literal interpretation of individual statutory terms or provisions” is not permitted to override “the overall purpose of the statute.” State Farm Mut. Auto. Ins. Co. v. Licensed Beverage Ins. Exch., 146 N.J. 1, 5, 679 A.2d 620 (1996) (quoting Young v. Schering Corp., 141 N.J. 16, 25, 660 A.2d 1153 (1995)). We are thus required to carefully examine the words chosen by the Legislature in expressing its intent as well as the overall purpose of N.J.S.A. 39:6A-9.1 and its neighboring and related provisions.

 

In looking first to the words of the statute and the critical phrase, we focus initially on the Legislature’s use of the definite article. That is, in giving the words in the statute their common meaning, Darel v. Pennsylvania Mfrs. Assoc. Ins. Co., 114 N.J. 416, 425, 555 A.2d 570 (1989); N.J.S.A. 1:1-1, the Legislature’s reference to the submission of “the claim” as the event triggering the running of the statute of limitations was likely intended to mean a single, definite event and not any one of a series of events. N.J.S.A. 39:6A-9.1 (emphasis added). We reach this conclusion not only because the phrasing of the statute strongly suggests a single, definite submission to the insurer as the triggering event, but also because the very nature of the undertaking-the fixing of the moment upon which the limitations period begins to run-suggests a need to provide the parties with a clear and unambiguous understanding of which of any number of occurrences is the triggering event. With that goal in mind, we are satisfied the Legislature intended to fix a single circumstance as the triggering event. Accordingly, we place significant emphasis on the fact that the Legislature described that event as the filing of “the claim” and not “a claim.”

 

Concluding that “the claim” refers to a single event and not any one of an array of possible events, however, only partially narrows the focus. That is, the Legislature’s use of the definite article undoubtedly was intended to describe one event clearly distinguishable from all others. But it does not provide enlightenment as to whether that singular claim was meant to be the first claim, the last claim, or the claim that is different from all others, namely, the insured’s PIP application.

 

Having narrowed the field of possibilities, we reject the last request for payment from a health care provider as “the claim” referred to in N.J.S.A. 39:6A-9.1. What might be the last request for payment may not always be obvious to the parties until there is a considerable passage of time from its submission. For example, an insurer could receive a series of requests for payment over the course of a few months ending on January 5, 2008. With an interval of a few weeks during which no request was submitted, the insurer might be led to assume that the two-year period began running on January 5, 2008. Many weeks or months later, however, another request for payment might be received, causing the insurer to readjust its view of the deadline for filing suit. In that fashion, the two-year limitations period will become a moving target until such time as the insured or his or her health care providers eventually stop making requests for payment. Because of the impracticalities and uncertainty associated with such an approach, we reject as unlikely that the Legislature intended “the claim” to be “the last demand for payment.”

 

The first request for payment seems more logical because it would tend to compel the early filing of suits for reimbursement. The Legislature’s choice of that event would best serve the goals underlying all statutes of limitations-providing defendants with “a fair opportunity to defend” and “prevent[ing] plaintiffs from litigating stale claims,” Price v. N.J. Mfrs. Ins. Co., 182 N.J. 519, 524, 867 A.2d 1181 (2005) (quoting W.V. Pangborne & Co. v. N.J. Dep’t of Transp., 116 N.J. 543, 563, 562 A.2d 222 (1989))-by requiring the insurer to commence its reimbursement suit sooner than it would if the last request for payment was chosen as the trigger point. But interpreting “the claim” as the equivalent of the insured’s first request for PIP benefits generates uncertainty. For example, in this case the first claim could logically be construed as the insured’s initial telephone call to the insurer to advise of the accident or it could be construed as Dr. Palluzzi’s first request for payment of a bill. Although here those two events occurred only two days apart, other problematic scenarios can be envisioned.

 

We think it unlikely that the Legislature intended to leave parties in the dark as to the commencement of the limitations period by choosing an uncertain triggering event. Instead, the Legislature likely had some other event in mind when it referred to “the claim” in N.J.S.A. 39:6A-9.1. Our focus on the definite article in the phrase “the claim” in N.J.S.A. 39:6A-9.1 was helpful in recognizing the Legislature’s intent to fix one particular, distinguishable event as the trigger for the limitations period. Yet our consideration of the word “claim” as used in the statutory scheme, as well as the purposes of the no-fault laws, compels our conclusion that it is the submission of the PIP claim form that triggers the two-year limitations period contained in N.J.S.A. 39:6A-9.1.

 

As we have noted, in other circumstances we have viewed the word “claim” broadly as including any assertion of a right or demand for payment.   Burlington Cnty. Abstract Co., supra, 167 N.J.Super. at 404, 400 A.2d 1211. Viewed broadly, practically everything submitted by either the insured or his health care providers to NJM constituted a “claim.” However, as we have explained, utilization of such a broad definition would generate undue uncertainty regarding the application of the statute of limitations in most any given case. Logic suggests that the Legislature intended one particular, clearly distinguishable event to trigger the statute of limitations.

 

In seeking what the Legislature intended, we find it significant that, in declaring the parties’ obligations upon the submission to an insurer of a demand for payment, the Legislature did not always refer to those submissions as “claims.” Instead, N.J.S.A. 39:6A-5(a) directs that “written notice shall be provided to the insurer by the treating health care provider no later than 21 days following the commencement of treatment” (emphasis added), and N.J.S.A. 39:6A-5(b) speaks in terms of an insured or health care provider giving “written notice” or “notification” of a “bill or invoice to the insurer for reimbursement of services within 21 days of the commencement of treatment.” We glean from the manner in which these demands were labeled in other related provisions that the Legislature likely contemplated something other than a routine submission of a bill as “the claim” mentioned in N.J.S.A. 39:6A-9.1.

 

This assumption of the legislative intent from the words of the statute and neighboring provisions is reached with no great abundance of certainty. We are concerned by the fact-as the parties recognize-that the policy in question and perhaps others like it do not require that an insured ever submit a PIP claim form; nor do the no-fault laws compel such a “filing.” As a result, the event we have assumed to be the triggering event for the time within which a reimbursement suit must be commenced may be something that, in many cases, may never occur. However, because nothing else would sensibly constitute a logical event for the commencement of the limitation period, we conclude that “the claim” referred to in N.J.S.A. 39:6A-9.1 is the submission of the claim form or application requested by the insurer. It is only this submission that provides in a single document: the nature of the accident and the injuries claimed; an identification of the health care provider and his contact information; information about other automobiles garaged at the insured’s household; whether the insured is employed; and whether the accident occurred while the insured was in the course of his employment. The claim form also called for the insured’s signature, thus providing greater formality to the parties’ undertaking. Such a document better conforms to what it means to be a “claim” and its submission constitutes an event that provides clarity and predictability to the commencement of the limitations period.

 

In addition, our conclusion as to the likely meaning of N.J.S.A. 39:6A-9.1 is suggested by the Legislature’s goal in enacting and periodically amending the no-fault laws, which has been to reduce insurance costs for New Jersey residents. David v. Gov’t Emp. Ins. Co., 360 N.J.Super. 127, 134-35, 821 A.2d 564 (App.Div.), certif. denied, 178 N.J. 251, 837 A.2d 1094 (2003). To that end, the various provisions of the no-fault laws, including N.J.S.A. 39:6A-9.1, are liberally construed. Washington v. Mkt. Transition Facility, 295 N.J.Super. 368, 372, 685 A.2d 57 (App.Div.1996). As a result, N.J.S.A. 39:6A-9.1 is to be read “broadly so as to encompass all potentially liable tortfeasors, consistent with the legislative objective of reducing insurance premiums” for vehicle owners. David, supra, 360 N.J.Super. at 135, 821 A.2d 564. Reimbursement “advances stability in the insurance marketplace by requiring that the ultimate cost of PIP benefits be borne by the insurer of the responsible party, not by the insurer of the victim.” Fernandez v. Nationwide Mut. Fire Ins. Co., 199 N.J. 591, 593, 974 A.2d 1031 (2009). Accordingly, adoption of a later moment in time-the submission of the claim form-provides additional time for “the insurer of the victim” to seek reimbursement from “the insurer of the responsible party” and, thus, better serves the goals of the no-fault laws.

 

As can be seen, our resolution of this novel issue is based largely on an interpretation of the wording and general sense of the statute, as well as its overall goals. To be sure, the possible triggering events we have rejected represent plausible interpretations of the statute, and we take comfort in knowing that the Legislature is fully capable of correcting the statute’s ambiguity if it believes we have erroneously interpreted the statute. See LaFage v. Jani, 166 N.J. 412, 430, 766 A.2d 1066 (2001).

 

Affirmed.

 

Common usage might suggest that the word “claim” preceded by “a” restricts application to a single object or subject; however, the “usual presumption in favor of [that] natural application appears to be reversed” in matters of statutory interpretation. 2A Norman Singer, Sutherland Statutory Construction § 47:34 at 377 (2d ed. 2010). That is, most courts have ruled “that a term introduced by ‘a’ or ‘an’ applies to multiple subjects or objects unless there is reason to find that singular application was intended or is reasonably understood.” Ibid. Application of this general guideline would suggest that an insurer could timely commence a reimbursement suit within two years of any claim-an outcome we believe unlikely.

 

The entire relevant text of N.J.S.A. 39:6A-5(a), quoted below, demonstrates that the various notifications of treatment provided by the insured and Dr. Palluzzi are different than “the claim” that triggers the limitation period:

 

In the case of claims for medical expense benefits under [standard, basic or special automobile insurance] policies [required by N.J.S.A. 39:6A-4, N.J.S.A. 39:6A-3.1, or N.J.S.A. 39:6A-3.3], written notice shall be provided to the insurer by the treating health care provider no later than 21 days following the commencement of treatment. Notification required under this section shall be made in accordance with the regulations adopted by the Commissioner of Banking and Insurance and on a form prescribed by the Commissioner of Banking and Insurance. Within a reasonable time after receiving notification required pursuant to this act, the insurer shall confirm to the treating health care provider that its policy affords the claimant personal injury protection coverage benefits …, medical expense benefits …, or emergent care medical expense benefits….

 

[Emphasis added.]

 

We recognize that not every provision of these statutes reflects this distinction between “notifications” and “claims.” See, e.g., N.J.S.A. 39:6A-5(d) (providing for a health care provider’s right to request a superior court judge to permit a provider “to refile” a “claim” when the provider “fails to notify the insurer within 21 days and whose claim for payment has been denied”). However, the sense derived from all the subsections of N.J.S.A. 39:6A-5 is that the many bills for payment that may be served on the insurer in a given case are only portions of what the Legislature viewed as an insured’s “claim” for PIP benefits.

United States District Court,

S.D. Georgia,

Savannah Division.

James C. BALLARD, Plaintiff,

v.

KEEN TRANSPORT, INC., William J. Brown, and Zurich American Insurance Company, Defendants.

 

No. 4:10-cv-54.

Jan. 19, 2011.

 

ORDER

B. AVANT EDENFIELD, District Judge.

I. INTRODUCTION

Plaintiff James C. Ballard (“Ballard”) sued Defendants Keen Transport, Inc. (“Keen”), William J. Brown (“Brown”), and Zurich American Insurance Company (“Zurich”) (collectively “Defendants”) for personal injuries he suffered when Brown drove his employer’s, Keen’s, tractor-trailer into the back of Ballard’s farm tractor. See Doc. 1-1 at 3. Ballard was thrown from the tractor and sustained injuries. See id.

 

Ballard brings a negligence claim against Defendants and a negligent hiring, supervision, and retention claim against Keen. See Doc. 1-1. Ballard is seeking compensatory and punitive damages in addition to attorneys’ fees and costs. See id. at 8.

 

Brown admits that he took his eyes off of the road just before the collision. See Doc. 53 at 188:25-189:5 (Brown Deposition (“Dep.”)). Defendants admit that respondeat superior applies and that they are “responsible for causing the accident, but … reserve the issues of proximate cause and damages.” See Doc. 15 at 2-3 (Amended Answer). The case is before the Court on Defendants’ Motion for Summary Judgment on Plaintiff’s Claim for Punitive Damages. See Doc. 41. Ballard has filed a parallel Motion to Strike Defendants’ Answer as to Punitive Damages or, in the Alternative, Motion for Adverse Inference. See Doc. 54.

 

II. FACTUAL BACKGROUND

On November 10, 2008, Brown’s tractor-trailer struck Ballard’s farm tractor from behind. See Doc. 1-1 at 3. Brown admitted that he took his eyes off the road just before the collision because he “was having difficulty getting [his] sweet tea back in the holder.” See Doc. 53 at 188:25-189:5 (Brown Dep.). Keen’s policies dictate that drivers be tested for alcohol and drugs following a collision where either vehicle is towed or injuries are treated away from the scene. See Doc. 48 at 148:19-149:10 (Trimble Dep.). Brown tested negative for drugs, but there is no evidence that he was tested for alcohol. See id. at 149:13-154:19.

 

Georgia State Patrol Trooper Richard Meeks (“Meeks”), the investigating officer on the scene, testified that Brown was at fault and the collision occurred because Brown was following too closely. See Doc. 46 at 19:2-12 (Meeks Dep.). Jeffrey Kidd (“Kidd”), whom Ballard offers as an accident reconstruction expert, estimated that Brown was travelling 66 miles per hour (“mph”) in a 55 mph zone when he struck Ballard. See Doc. 16 at 6 (Kidd Expert Report).

 

Keen hired Brown on February 19, 2007. See Doc. 53-1 at 2 (Brown Dep., Exh. 1, Driver Qualification File). Federal regulations require trucking companies to run a motor vehicle report for the three years preceding employment. See 49 C.F.R. § 391.23(a) (2010). Keen obtained a five year motor vehicle report. See Doc. 53-1 at 17. This report revealed one ticket for travelling 66 mph in a 55 mph zone in 2002. See id. Keen required Brown to complete a road test and a written examination. See id. at 28-32. Keen asserts that Brown passed both of these tests, see Doc. 41-2 at 2, but Ballard disputes that. See Doc. 68-1 at 3.

 

A July 2008 motor vehicle report shows that, while employed at Keen, Brown was convicted of obstructing or impeding traffic and speeding in California in September 2007. See Doc. 53-1 at 45. Brown testified that these citations were actually for parking to sleep in an emergency lane and being off by two hours in his driver’s log. See Doc. 53 at 126:6-10 (Brown Dep.). Ballard alternates between arguing the citation was for speeding and for violating log book procedures. See Doc. 68 at 5, 6. Brown reported these citations to Keen. See Doc. 53 at 129:4-6. The report also shows Brown was convicted of disobeying a stop sign in Dearborn, Michigan in July, 2008. See Doc. 53-1 at 45. Keen was aware of this violation. See Doc. 48 at 68:16-69:2 (Trimble Dep .).

 

Brown admits to paying a fine on a 2004 Ohio ticket for warning oncoming vehicles that the police were clocking them, but that citation never appeared on his motor vehicle report. See Doc. 53 at 92:1-93:9 (Brown Dep.). Brown also admits to paying a fine for travelling 84 mph in a 55 mph zone in Battlecreek, Michigan sometime before April 2001. See id. at 33:25-34:16 (Brown Dep.). Brown’s 2005 motor vehicle report shows speeding convictions for travelling 60 mph in a 55 mph zone in Corunna, Michigan on August 11, 2000, and 66 mph in a 55 mph zone in Saginaw, Michigan on April 25, 2002. See Doc. 68 at 26 (Ballard Response to Defendants’ Summary Judgment Motion, Ex. A). Ballard also points to a citation for Brown’s failure to wear a seatbelt. See Doc. 68-1 at 9 (Ballard’s Statement of Facts). Brown also pleaded guilty to running a stop light at a weigh station in 2008, although he now denies guilt. See Doc. 53 at 117:24-120:21 (Brown Dep.). Ballard has not shown that Keen was aware of any incidents described in this paragraph.

 

Ballard asserts that Brown was at fault in a 2005 collision in which he allegedly sideswiped a vehicle on July 7, 2005. See Doc. 53 at 96:2-15; Doc. 68-1 at 9. Brown denies any involvement in a 2005 collision. See Doc. 53 at 96:2-15 (Brown Dep.). For some reason, Ballard also points to a January 2004 collision in which another driver collided with the rear of Brown’s vehicle. See Doc. 68-1 at 10 (Ballard Statement of Facts); Doc. 53 at 94:11-96:1 (Brown Dep.).

 

Keen failed to maintain Brown’s driver logs. See Doc. 48 at 91:13-93:16 (Trimble Dep.). Ballard argues that Keen’s spoliation of the logs justifies a presumption that they show Brown violated driving time limitations and that fatigue contributed to the collision. See Doc. 54-1 at 8. Ballard also moves for “meaningful” sanctions. Id. at 2.

 

Pursuant to 49 C.F.R. § 395.8(k) (2010), Keen retains all driver logs for six months and then disposes of them. See Doc. 48 at 93:8-16 (Trimble Dep.). Keen used a company called LogScan to store and audit the log books. See id. at 91:25-92:11. Brown’s November 2008 log books were loaded into LogScan’s program. See id. at 92:12-14. Sometime thereafter, Keen switched vendors to RapidLog. See id. at 92:15-93:4. Keen assumed it would be able to later access the files that it had loaded into LogScan’s program, but it has since learned that it cannot. See id. at 91:13-24.

 

III. SUMMARY JUDGMENT

 

A. 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.” FED. R. CIV. P. 56(c). In ruling on summary judgment, the Court views the facts and inferences from the record in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); United States v. Four Parcels of Real Prop. in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1437 (11th Cir.1991).

 

“The moving party bears ‘the initial responsibility of informing the … court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ “ Four Parcels, 941 F.2d at 1437 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The nonmoving party then “may not rest upon the mere allegations or denials of [his] pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” Gonzalez v. Lee Cnty. Hous. Auth., 161 F.3d 1290, 1294 (11th Cir.1998). “A factual dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ “ Four Parcels, 941 F.2d at 1437 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

 

B. Punitive Damages

The Court agrees with the parties that Georgia law applies to Ballard’s claims for punitive damages. See Docs. 41-1 at 3, 68 at 12; see also Rhone v. State Auto. Mut. Ins. Co., 858 F.2d 1507, 1509 (11th Cir.1988). Punitive damages are permitted in Georgia tort actions when “it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” O.C.G.A. § 51-12-5.1(b).

 

[M]ore than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.

 

Colonial Pipeline Co. v. Brown, 258 Ga. 115, 121-22 (1988). “Mere negligence, even gross negligence, will not support an award of punitive damages.” Harris v. Leader, 231 Ga.App. 709, 712 (1998).

 

“[P]unitive damages are not recoverable where the driver at fault simply violated a rule of the road. On the other hand, punitive damages are recoverable under the statute where the collision resulted from a pattern or policy of dangerous driving.” Carter v. Spells, 229 Ga.App. 441, 442 (1997) (citations omitted).

 

1. Brown’s actions did not evidence an entire want of care.

Ballard has not alleged any facts that show that Brown acted maliciously on November 10, 2008. Ballard has presented evidence that Brown caused the collision because Brown was travelling 11 mph above the speed limit, See Doc. 16 at 6 (Kidd Expert Report), following too closely, see Doc. 46 at 19:2-12 (Meeks Dep.), and failed to keep a proper lookout, see Doc. 53 at 188:25-189:5 (Brown Dep.). These violations of the rules of the road do not justify punitive damages. See Coker v. Culter, 208 Ga.App. 651, 651-52 (1993) (punitive damages not warranted where defendant was speeding on wet roads in poor visibility, had consumed some alcohol, possessed drug paraphernalia, and cursed at a pregnant woman after the collision).

 

2. No pattern of dangerous driving caused this collision.

A plaintiff can sustain a punitive damages claim for negligent hiring, supervision, and retention “only by showing that an employer had actual knowledge of numerous and serious violations on its driver’s record, or, at the very least, when the employer has flouted a legal duty to check a record showing such violations.” W. Indus., Inc. v. Poole, 280 Ga.App. 378, 380 (2006).

 

Only those incidents in Brown’s driver’s history that relate to a cause of this collision are relevant to the punitive damages issue. See Carter, 229 Ga.App. at 442 (punitive damages available “where the collision resulted from a pattern or policy of dangerous driving”) (emphasis added); see also Frey v. Gainey Transp. Servs., Inc., 2006 WL 3734157, at(N.D.Ga. Dec. 14, 2006) (applying Georgia law). Here, the possible causes include speeding, following too closely, and failure to keep a proper lookout as outlined above.

 

Relevant to these causes, Ballard has presented evidence that Brown may have had five speeding tickets in the eight years preceding the collision. See supra Section II. Ballard has shown that Keen was aware of two of them; one possibly being only a log book violation. See Docs. 53-1 at 45 (Brown’ Dep., Ex. 1, Driver Qualification File), 53 at 129:4-6 (Brown Dep.). The myriad of other stop sign, stop light, log book, and seatbelt violations that Ballard cites are irrelevant because he has not put forward any evidence showing that similar conduct contributed to this collision. See Carter, 229 Ga.App. at 442; see also Frey, 2006 WL 3734157, at *3.

 

The court in Bartja v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. disallowed punitive damages where the employer followed federal regulations in investigating its driver’s background, even though it learned that the driver had two citations for driving into the rear-end of a vehicle parked in an emergency lane and clipping the side mirror of an oncoming van. 218 Ga.App. 815, 818 (1996); see also Hutcherson v. Progressive Corp., 984 F.2d 1152, 1155-56 (11th Cir.1993) (dismissing punitive damages because employer obeyed regulations, despite evidence that the truck driver was on amphetamines at the time of the collision, received four speeding tickets in the previous three years, had his license suspended for refusing an alcohol test, and had a history of DUI).

 

Keen exceeded federal regulations, investigating two extra years of Brown’s driving history, and knew of only two speeding tickets in eight years. See Doc. 53-1 at 45 (Brown Dep., Ex. 1, Driver Qualification File). This history does not justify a punitive damages award.

 

Even considering Brown’s three other alleged speeding tickets over eight years, as the Court must in examining Ballard’s claim against Brown, Ballard’s proof falls short. Georgia courts have found a driver’s history justified punitive damages where there was evidence the collision resulted from driving under the influence (“DUI”) and the defendant had a history of DUI. See, e.g., Cheevers v. Clark, 214 Ga.App. 866 (1994),; Holt v. Grinnell, 212 Ga.App. 520 (1994). Brown’s speeding tickets, however, are not such “numerous and serious violations,” Poole, 280 Ga.App. at 380, as to suggest that this collision “resulted from a pattern or policy of dangerous driving,” Carter, 229 Ga.App. at 442.

 

Ballard argues for an adverse inference from Keen’s failure to produce Brown’s driver’s logs that would prevent summary judgment. See Doc. 68 at 22. Ballard has not presented any evidence that the collision resulted from fatigue or any other cause possibly related to the logs. Without any evidence of causation, any such inference is inappropriate. See Frey, 2006 WL 3734157, at *3. In Frey, the plaintiff requested an inference that the defendant driver was fatigued at the time of the collision solely because he allegedly falsified his log. The Court denied the request. See id. at *4. The court held that without evidence that fatigue contributed to the collision, the plaintiff was not seeking “an ‘inference’ but rather an ‘assumption.’ This is not appropriate on a motion for summary judgment.” Id.

 

Ballard’s evidence of Brown’s involvement in 2004 and 2005 collisions is also insufficient to prevent summary judgment. The only evidence in the record regarding the cause of the 2004 incident tends to prove that Brown was not at fault. See Doc. 53 at 94:11-96:1 (Brown’ Dep.). As to the 2005 incident, Ballard merely refers to a vague complaint in a lawsuit against Brown and his then employer. See Doc. 68 at 30-34. There is no sworn testimony, citation, or judgment to support the general allegations made against Brown.

 

Ballard points to Harrison v. S & B Trucking, 179 Ga.App. 291 (1986), Rutland v. Dean, 60 Ga.App. 896 (1936), and Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826 (1993) to show that punitive damages are appropriate. However, Harrison and Rutland were decided under a more lenient standard for awarding punitive damages before O.C.G.A § 51-12-5.1 became effective and are not controlling. See Coker, 208 Ga.App. at 652.

 

Smith involved a collision in which the track driver rammed a vehicle multiple times. The employer encouraged speeding and never investigated the driver’s background. This case is inapposite. Ballard has not pointed to sufficient evidence to preclude summary judgment on its punitive damages claims against Keen.

 

Defendants’ Motion for Summary Judgment on Plaintiff’s Claim for Punitive Damages is GRANTED and Ballard’s prayer for punitive damages is DISMISSED as to all claims against all Defendants.

 

C. Negligent Entrustment Claim

Defendants move to dismiss Ballard’s negligent entrustment, hiring, and retention claim as moot. See Doc. 41-1 at 4. “Generally, when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention.” Durben v. Am. Materials, Inc., 232 Ga.App. 750, 751 (1998).

 

This rale arises from the countervailing problems inherent in protecting the employee from prejudicial evidence of his prior driving record and general character for recklessness in driving while admitting the proof necessary for the negligent entrustment case to proceed. It applies where, under the case as pleaded, the employer’s liability under respondeat superior would be identical to that under the negligent entrustment theory because no punitive damages are sought on the negligent entrustment claim. In contrast, where the employer’s liability is not the same on both claims because punitive damages are sought only on the negligent entrustment claim, the appropriate solution for avoiding the prejudice to the driver is a separate trial on the negligent entrustment issue.

 

Bartja v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 218 Ga.App. 815, 817 (1995) (citations omitted).

 

Keen admits respondeat superior liability for the actions of its driver, Brown, but disputes causation and damages. See Doc. 15 at 3. Because the Court dismisses Ballard’s punitive damages claims, Keen’s potential liability is the same under Ballard’s respondeat superior and negligent hiring, supervision, and retention claims. Ballard’s negligent hiring claim is DISMISSED .

 

III. MOTION TO STRIKE

On the same day that Defendants filed their Motion for Summary Judgment, Ballard filed a Motion to Strike Defendants’ Answer as to Punitive Damages or, in the Alternative, Motion for Adverse Inference. See Docs. 41, 54. Ballard moves to sanction Defendants for “destroying” Brown’s drivers logs. See Doc. 54-1 at 2, 13, 16.

 

While federal law governs the imposition of spoliation sanctions, Georgia law informs the Court’s analysis. Flury v. Daimler Chrsyler Corp., 427 F.3d 939, 944 (11th Cir.2005).

 

In determining whether dismissal is warranted, the court must consider:

 

(1) whether the defendant was prejudiced as a result of the destruction of evidence;

 

(2) whether the prejudice could be cured;

 

(3) the practical importance of the evidence;

 

(4) whether the [party] acted in good or bad faith; and

 

(5) the potential for abuse if [the evidence] was not excluded.

 

Id. at 945 (citing Chapman v. Auto Owners Ins. Co., 220 Ga.App. 539, 542 (1996)).

 

The first two factors cut against Ballard. Ballard was not prejudiced by the unavailability of Brown’s drivers logs. As noted above, Ballard has not presented any evidence that the collision resulted from fatigue or any other cause related to the logs. The logs, and any inference from them, are irrelevant without that link. See Frey v. Gainey Transp. Servs., Inc., 2006 WL 3734157, at(N.D.Ga. Dec. 14, 2006). Without prejudice, there is no need to cure.

 

There is no practical importance to the missing evidence. Ballard’s punitive damages claims have been dismissed and Ballard has not indicated any other use for the evidence. See Doc. 54-1.

 

Keen acted in good faith. Contrary to Ballard’s representations, See Doc. 54-1 at 4, 12, 13, 16, Keen did not destroy Brown’s drivers logs, See Doc. 48 at 91:13-93:16 (Trimble Dep.). Instead, Keen changed audit and retention companies and lost access to the records in the transition. See id. The potential for abuse here is minimal. Keen inadvertently lost irrelevant evidence. No sanctions are appropriate. Ballard’s motion is DENIED.

 

Ballard’s attorney, James A. Robson of Law & Moran, represented seven times throughout his pleadings that Keen destroyed Brown’s logs. See Doc. 54-1 at 4, 12, 13, 16; Doc. 68 at 22; Doc. 74 at 4. But elsewhere, in the same pleadings, he acknowledges that they were inadvertently lost. See, e.g., Doc. 54-1 at 7. Similarly, Robson argued that Brown’s 2007 California conviction was for speeding, but also accepted Brown’s explanation that he was cited for a log violation and parking in an emergency lane. See Doc. 68 at 4, 6; Doc. 54-1 at 14; Doc. 53 at 126:6-10 (Brown Dep.). Robson asserted that Brown received the single citation for both parking and speeding.

 

Robson is admonished to more truthfully and openly express his arguments in order to effectively communicate his client’s position while fulfilling his obligation of candor to the Court. See Georgia Rules of Professional Conduct 3.3; Fed.R.Civ.P. 11(b)(3). Failure to heed this Court’s warning will result in severe sanctions from this Court and referral to the State Bar of Georgia in accordance with Georgia Rule of Professional Conduct 8.3(a). The fine line between truth and falsity is not a tight rope to walk, but instead a 38th parallel to avoid.

 

IV. CONCLUSION

Defendants’ Motion for Summary Judgment on Plaintiff’s Claim for Punitive Damages, See Doc. 41, is GRANTED. Ballard’s negligent hiring, supervision, and retention claim is DISMISSED. Ballard’s Motion to Strike Defendants’ Answer as to Punitive Damages or, in the Alternative, Motion for Adverse Inference, see Doc. 54, is DENIED.