United States District Court,

M.D. Pennsylvania.

Larry W. CHRISTIAN and Sandra A. Christian, Plaintiffs,

v.

The FIRST LIBERTY INSURANCE CORPORATION also t/a Liberty Mutual, and John Doe, Defendants.

 

No. 1:10-CV-125.

March 16, 2011.

 

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

Before the court is Plaintiffs Larry W. Christian’s and Sandra A. Christian’s motion to consolidate. (Doc. 14). For the reasons that follow, the motion will be denied.

 

I. Background

 

A. Facts

 

1. Parties

 

Plaintiff Larry W. Christian (“Christian”) is a tractor-trailer operator married to Sandra A. Christian, both of whom reside in Virginia.

 

Defendant First Liberty Mutual Corporation (“Liberty Mutual”) is an insurance company incorporated in the state of Massachusetts. Liberty Mutual provided uninsured motorist coverage to the Christians from November 23, 2009, to November 23, 2010.

 

In a separate action, Civ. No. 1:10-CV-0019, the Christians seek recovery from two other sources. Defendants in that action are truck owner Martini Inc. (“Martini”) and their tractor-trailer operator, Earnest Compton (“Compton”).

 

2. The Accident

On January 30, 2008, Christian was driving a tractor-trailer northbound on Interstate 81 near Shippensburg Borough in Cumberland County, Pennsylvania, and was third in a series of five tractor-trailers driving in a line. Martini’s truck, driven by Compton, was first in the series. Plaintiffs contend that Compton’s negligent driving caused a loose beer barrel from his truck to go soaring into the windshield of Christian’s truck, causing permanent injuries to Christian.

 

Plaintiffs believe Compton will defend himself by claiming the accident was unavoidable because a small SUV, the driver of which is unknown to either party, cut Compton off as it merged onto the highway. To the court’s knowledge, discovery has not commenced in this case, and thus, the factual arguments are based on mere speculation. However, Plaintiffs point to a police report which states that another truck driver, Michael L. Conlee, saw a small SUV merge onto the highway at the time of the accident.

 

Plaintiffs, in the event that a jury finds that the unknown SUV driver contributed to the cause of the accident, seek uninsured motorist coverage from Liberty Mutual. Thus, Plaintiffs filed the instant motion to consolidate their tort claims against the Third-Party Defendants with their contractual claim against Liberty Mutual.

 

B. Procedural Posture

On January 5, 2010, the Christians filed various tort claims against Compton and Martini alleging that Compton’s negligent driving caused the accident that led to Christian’s injuries. (See Christian v. Martini, Inc. et al, 1:10-cv-00019, Doc. 1.) Martini and Compton joined several other trucking companies and drivers involved in the accident as Third Party Defendants in the tort action, and crossclaims have been filed among those parties. (See 1:10-cv-00019, Docs. 6, 12.)

 

On January 19, 2010, the Christians filed the instant action, (Doc. 1), against Liberty Mutual, claiming uninsured motorist coverage in the event liability was found on the part of an unknown and/or uninsured driver.

 

On December 9, 2010, the Christians filed a motion to consolidate their tort and contract cases. (Doc. 14.) On December 16, 2010, a brief in support was filed, (Doc. 17), and Liberty Mutual responded on December 30, 2010, (Doc. 18). The Christians filed a reply brief on January 6, 2011. (Doc. 19.) The motion is now ripe for disposition.

 

II. Discussion

Plaintiffs argue this court should consolidate their tort and contract claims for judicial efficiency and to mitigate expenses for the parties because the same witnesses and evidence may be needed at each trial if held separately. Defendant argues consolidation would lead to the introduction of insurance information that may prejudice the jury to improperly find the presence and liability of the unknown SUV driver due to the desirability of shifting blame to an anonymous tortfeasor represented by a deep pocket.

 

The parties also disagree as to whether damages can be recovered from both Plaintiffs’ uninsured motorist insurance in addition to Third Party Defendants, and whether consolidation is therefore appropriate. Because the court will deny consolidation for prejudicial reasons, it will not address the question of recovery at this time.

 

A. Consolidation

Pennsylvania’s Rules of Civil Procedure allow courts to consolidate actions involving a common question of law or fact in similar fashion to the federal rules. Cf. Pa. R. Civ. P. 213(a) with Fed.R.Civ.P. 42(a). As with its federal counterpart, exercise of Pennsylvania’s consolidation rule is at the discretion of the trial court where it will avoid unnecessary cost or delay, and can be refused over the court’s concerns of prejudice or sympathy. See Balla v. Sladek, 381 Pa. 85, 90, 112 A.2d 156 (1955); see also Mincy v. Chmielewski, 2006 WL 1997457, at * 2 (M.D.Pa., July 17, 2006) (citation omitted).

 

While the advantages to consolidating the case to avoid cost and delay are apparent from Plaintiffs’ standpoint, the disadvantages are equally apparent from the Defendant’s. Plaintiffs’ uninsured motorist claims against Liberty Mutual could only go forward after a jury found the presence and fault of an unknown driver. If the jury were to find that no phantom motorist was responsible for the accident, or if Compton does not claim a phantom motorist defense, Liberty Mutual will have been forced to prepare and appear before the court without reason.

 

Both parties cite various Pennsylvania trial court findings either for or against joinder  of third party motorist negligence claims and uninsured motorist insurance carrier claims, and these cases indicate a divergence in the state courts regarding the balance between prejudice and efficiency. Compare Bradish-Klein v. Kennedy, 13 Pa. D. & C. 5th 445, 448 (Pa.Com.Pl.2009) (collecting cases supporting joinder) with Thomas v. Titan Auto Ins., 2010 Phila. Ct. Com. Pl. LEXIS 281, at *11-12 (Pa.C.P.2010) (collecting cases against joinder).

 

While all of these cases dealt with joinder, the impact on the parties and the reasoning of the courts are relevant to the question of consolidation.

 

The facts of the instant case make the denial of consolidation to avoid prejudice particularly persuasive, as they are distinct from those in any of the cases the parties cite. Specifically, the allegation of an unknown third party defendant sets this case apart from those cited, and coincides directly with Pennsylvania’s strong presumption that the introduction of insurance information will create prejudice.

 

Rule 411 of the Pennsylvania Rules of Evidence forbids admission of any individual’s insurance information based “upon the issue of whether the person acted negligently or otherwise wrongfully.”  Pa. R. Evid. 411. In explaining the rule’s necessity, the Pennsylvania Supreme Court warned against the risk that “knowledge of the fact of insurance against liability will motivate the jury to be reckless in awarding damages to be paid, not by the defendant, but by a supposedly well-pursed and heartless insurance company that has already been paid for taking the risk.” Price v. Yellow Cab Co. Of Phila., 443 Pa. 56, 63-64, 278 A.2d 161 (1971) (internal quotations omitted).

 

Pennsylvania’s Rules of Evidence are used here for the limited purpose of explaining the prejudicial impact consolidation may have in this case. The admissibility of potential evidence is not currently before the court.

 

In the instant case, the existence and identity of the alleged phantom motorist will be a question of fact for the jury. In other cases raising the question of joinder, the identity of the tortious driver was known, and their amount, or lack thereof insurance coverage could be determined. There were no questions of fact as to whether these drivers existed, only a question as to their negligence and liability. In the instant case, the jury, as argued by Liberty Mutual, may be prejudiced by the introduction of a deep pocket to find the very existence, let alone liability, of an unknown driver. This inclination to find the actions of an unknown actor, who would have to be de facto represented by the insurance company, liable for the accident is precisely the concern the Pennsylvania Supreme Court articulated in Price. Therefore, consolidation in the instant case would create a strong risk of prejudice against the Defendant.

 

III. Conclusion

Because the concerns of potential prejudice against Defendant arising from the introduction of insurance information are significant, and the benefit of cost avoidance would be felt only by Plaintiffs in the instant case, Plaintiffs; motion got consolidation will be denied. An appropriate order will issue.

 

ORDER

In accordance with the accompanying memorandum of law, Plaintiffs’ motion to consolidate (Doc. 14) is DENIED.

United States District Court,

N.D. Indiana,

Fort Wayne Division.

Joseph D. MATTINGLY, Sr., Plaintiff,

v.

HEARTLAND EXPRESS, INC., OF IOWA, Defendant.

 

No. 1:08 CV 169.

March 14, 2011.

 

OPINION and ORDER

JAMES T. MOODY, District Judge.

Plaintiff Joseph D. Mattingly, Sr. (“Mattingly”) claims that his former employer, defendant Heartland Express, Inc., of Iowa (“Heartland”) pressured him to drive his truck more hours than allowed by federal law and to falsify logbooks to cover the violations, and when he complained to Heartland about those practices, he was fired in violation of both federal and Indiana state law. The case is now before the court on Heartland’s motion for summary judgment pursuant to FED. R. CIV. P. 56. (DE # 23.)

 

I. BACKGROUND

The court briefly explains the parties’ positions. Although very few of the underlying facts are disputed, this explanation is not intended to be a statement of undisputed facts, merely an overview to provide context for the analysis that follows. In that analysis, the court will refer only to undisputed facts or-if a material fact is disputed-to the version most favorable to Mattingly, and will draw all reasonable inferences in Mattingly’s favor. As it turns out, however, few of the details that follow are even material to resolution of Heartland’s motion for summary judgment.

 

Heartland is a large national trucking company, and it employed Mattingly as an over-the-road  driver. Federal regulations limit the amount of time drivers can drive in a day, and the amount of time they can be on duty, whether they are driving or not: a driver can drive no more than 11 cumulative hours in a day (after being off work for at least 10 consecutive hours), and whether driving or not, a driver cannot be on-duty for more than 14 consecutive hours without a mandatory break period. 49 C.F.R. § 395 .3(a). These regulations are commonly called the “11-hour rule” and the “14-hour rule.”

 

The parties have used this term without defining it. One website found by the court states: “Over the Road trucking or OTR is a form of tractor trailer driving. OTR driving involves making deliveries to some or all of the continental 48 states and parts of Canada…. Some OTR trucking jobs are regional and involve less long-distance travel. In some instances, regional carriers also include weekends off.” http:// www.careersingear.com/trucking-categories/OTR

 

On October 28, 2007, Mattingly wrote two letters to Heartland complaining that he was being required to break these rules. Less than two weeks later, on Friday, November 9, 2007, Mattingly began his work day at 4:11 a.m. and delivered a load of freight to Franklin Park, Illinois. At 8:30 a.m. his dispatcher at Heartland directed him to proceed to Kenosha, Wisconsin, to pick up a load scheduled for 2:00 p.m. Mattingly refused to do so, at first stating that doing so would interfere with his “home time,” that is, arriving home on Friday evening in order to be home for the weekend.

 

Mattingly was a non-custodial parent who had scheduled visitation periods with his daughter on alternating weekends.

 

About 10 minutes later, he informed his dispatcher that picking up the load in Kenosha would require him to violate the 14-hour rule. Heartland’s dispatcher then sent a text message to Mattingly, asking him to call by phone to discuss the matter. Mattingly refused to do so, responding by text that he would only communicate by text. Mattingly then “dead-headed” his semi-tractor home to Ft. Wayne (that is, without a freight trailer attached), without receiving permission to do so, which Heartland considered to be an unauthorized use of its equipment. Heartland’s Vice President for Operations considered the matter that weekend, and when Mattingly reported for work on Monday, he was fired for the stated reason of unauthorized use of company equipment.

 

Mattingly filed the present suit, claiming that the real reason for his discharge was to retaliate against him for his refusal to violate the 11 and 14-hour rules, and for lodging complaints about Heartland’s requests that he violate those rules. Heartland has moved for summary judgment, arguing that it is entitled to judgment because Mattingly failed to pursue an available administrative remedy prior to filing suit, or alternatively that he has no evidence that retaliation was the real reason for his firing.

 

II. LEGAL STANDARD

 

A. Summary Judgment

 

The FEDERAL RULES OF CIVIL PROCEDURE mandate that motions for summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A summary judgment is required, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial .” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (commenting on portions of RULE 56(c) which, as of December 1, 2010, are in subpart (a)). “[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations and quotation marks omitted).

 

The court’s role in deciding a summary judgment motion is not to evaluate the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994). In viewing the facts presented on a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party.   NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir.1995); Doe, 42 F.3d at 443.

 

III. ANALYSIS

 

A. Federal law-exhaustion requirement

 

In his complaint, Mattingly pleads that his discharge was in violation of federal law, without specifying a specific statute or law violated. He does not dispute Heartland’s assertion that his claim is based on the Surface Transportation Assistance Act of 1982, 49 U.SC. § 31105. In simple terms, and as relevant here, § 31105(a) provides than an employer may not discharge, discipline or discriminate against an employee because the employee has filed (or is suspected to be about to file) a complaint concerning commercial motor vehicle safety regulations, or because the employee refuses to violate any such regulations. An employee alleging conduct by his employer in violation of § 31105(a) “may file a complaint with the Secretary of Labor not later than 180 days after the alleged violation occurred.” 49 U.S.C. § 31105(b). The Secretary of Labor is required to conduct an investigation, issue findings, and order relief if a violation is found. Id. The process allows both the complaining party, and the party against whom the complaint is made, to request a hearing before a final order is made. 49 U.S.C. § 31105(b)(2)(b). If the Secretary of Labor doesn’t issue a timely final order, the complaining employee can bring an action for de novo review in United States District Court. 49 U.S.C. § 31105(c). In addition, any person adversely affected by a final order issued after a hearing may file a petition for review in the appropriate circuit of the United States Court of Appeals. 49 U.S.C. § 31105(d).

 

The Surface Transportation Assistance Act was originally enacted as 49 U.S.C. app. § 2305. On July 5, 1994, § 2305 was renumbered and reorganized without substantive change as 49 U.S.C. § 31105 by Pub.L. 103-272, § 1(e), 108 Stat. 745, 990.

 

It is undisputed that Mattingly did not file a complaint with the Secretary of Labor concerning Heartland’s termination of his employment. Heartland argues that doing so and exhausting that administrative process is a prerequisite to bringing an action for retaliatory discharge in district court pursuant to 49 U.S.C. § 31105(c). In other words, Heartland argues that Mattingly’s failure to seek the potential administrative remedy provided by § 31105 precludes him from bringing suit under § 31105(c).

 

Mattingly’s response in opposition relies on subpart (f) of the statute, which provides:

 

Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law.

 

49 U.S.C. § 31105(f) (emphasis added). Thus, Mattingly argues that nothing in § 31105 preempts his right to pursue a federal remedy.

 

It actually appears that Mattingly’s response argues only that his state law remedies are not preempted, without even addressing his right to bring a federal claim. The court will construe his argument broadly, however, just as Heartland did, and assume that he means his preemption argument to apply to both his federal and state legal theories.

 

Mattingly, however, hasn’t identified any safeguard under federal law which he is relying on other than the protection against retaliatory discharge found in § 31105(a), making this provision inapplicable on its face. Moreover, just as Heartland explains in its reply, his argument misses the point and is non-responsive. Preemption and exhaustion aren’t the same, and Heartland isn’t arguing that 49 U.S.C. § 31105 preempts other federal remedies. It is simply arguing that before Mattingly can bring an action in federal court asserting a violation of § 31105(a), he must first pursue, and exhaust, the administrative remedy provided in the statute. Mattingly hasn’t made any argument directly opposing that contention.

 

However, the court cannot grant summary judgment simply because Mattingly has failed to oppose Heartland’s argument. Instead, Heartland is entitled to summary judgment only if it is correct that exhaustion is required under § 31105. Heartland believes that 49 U.S.C. § 31105 doesn’t expressly state an exhaustion requirement, and admits that after diligent research it has failed to find a case specifically considering the issue of whether § 31105 requires exhaustion. (DE # 24 at 11.) Thus, Heartland argues that an exhaustion requirement is to be discerned by interpreting congressional intent, with an emphasis on the role Congress has given to the relevant federal agency. Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 502 n. 4, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Heartland compares § 31105 to similar statutes which require exhaustion, and argues for the same result here.

 

Strictly speaking, there are no such cases, as Heartland states. However, there are two unreported cases, Zaleski v. Customized Transport., Inc., 1991 WL 353847 at * 2 (E.D.Mich.1991), and Wiglesworth v. Chauffeurs, Teamsters & Helpers Local Union 771, 1985 WL 3230 at * 5 n. 4 (E.D.Pa.1985) which assume without discussion that exhaustion is required; and Norman v. M.S. Carriers, Inc., 741 F.Supp. 148, 150 (W.D.Tenn.1990), which holds that the administrative remedy provided, including subsequent judicial review of the Secretary’s decision, is exclusive. Although all three cases involve the statutory predecessor to § 31105, 49 U.S .C. app. § 2305, the nearly identical substance of the statutes makes the cases equally relevant.

 

This is the approach to be used when a statute does not contain an exahustion requirement; and while the court greatly appreciates Heartland’s conservative approach to the issue-unlike many cases before the court, in which parties advance propositions so lacking support as to be ludicrous-the court finds that it disagrees with Heartland’s assumption that the statute doesn’t expressly require exhaustion. As a matter of semantics, Heartland may be correct. But the plain language of the statute makes the filing of a complaint with the Secretary of Labor, and the Secretary’s failure to issue a timely decision, a prerequisite to the complainant’s having the right to file an action in district court. Specifically, the statute provides:

 

With respect to a complaint under paragraph (1), if the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to such action, be tried by the court with a jury.

 

49 U.S.C. § 31105(c) (emphasis added).

 

Thus, the statute conditions the existence of an action in United States District Court on the Secretary of Labor’s failure to issue a final decision within 210 days after the filing of a complaint with the Secretary. It is difficult to see how there could be a more plainly-expressed requirement to file a complaint with the Secretary of Labor before pursuing a federal action. Cf. Nieman v. Nationwide Mut. Ins. Co., 706 F.Supp.2d 897, 907 (C.D.Ill.2010) (finding similar provision in Sarbanes-Oxley Act a prerequisite to federal jurisdiction). It is undisputed that Mattingly did not do so. For this reason, Heartland will be granted summary judgment on Mattingly’s action under § 31105(c).

 

B. State law-existence of action

Indiana adheres to the “employment-at-will” doctrine, which means generally that as long as no law such as those prohibiting discrimination is violated, an employer can fire an employee for a good reason, a bad reason, or for no reason at all. Bregin v. Liquidebt Systems, Inc., 548 F.3d 533, 536 (7th Cir.2008). Thus, with limited exceptions, a terminated employee in Indiana has no cause of action for retaliatory or otherwise wrongful discharge. The recognized exceptions, based on sound public policy, protect employees who are terminated for refusing to engage in criminal conduct, and those terminated solely for exercising a statutorily-conferred right. Id. (citing McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390 (Ind.1988); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (Ind.1973); Groce v. Eli Lilly & Co., 193 F.3d 496, 502-03 (7th Cir.1999).

 

In addition to the public policy exceptions, Indiana recognizes that independent consideration may support termination for cause only, and so may promissory estoppel. Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 718 (Ind.1997).

 

Indiana interprets these exceptions to employment-at-will very narrowly. Therefore, if the employee has a statutory remedy, allowing him to bring a common-law action rather than using the statutorily-provided remedy would be an unwarranted expansion of the exceptions. Groce, 193 F.3d at 503-04. Heartland argues this is the reason it is entitled to summary judgment here on Mattingly’s alleged state-law claim: he had an available remedy under federal law, the ability to file a complaint with the Secretary of Labor. Because he failed to avail himself of that remedy, it would unnecessarily expand the scope of Indiana’s public policy exceptions to allow him to bring a state common-law action for wrongful discharge.

 

Mattingly’s response in opposition again is that 49 U.S.C. § 31105(f) specifically provides that the federal statute does not preempt other safeguards against wrongful discharge, and therefore his remedies under Indiana law are unimpaired; and again, as Heartland argues in its reply, this misses the point. No Indiana state-law remedies are being preempted. Instead, no such remedies, as exceptions to Indiana’s employment-at-will doctrine, come into existence in the first place, because there is an adequate statutory remedy. As Judge Hamilton, speaking for the Southern District of Indiana, explained in an unpublished decision: “In essence, where the legislature has spelled out the public policy and the remedy, the remedy is part of the public policy, and it does not need a common law supplement.” Combs v. Indiana Gaming Co., L.P., 2000 WL 1716452, at * 2 (S.D.Ind.2000).

 

Unlike Combs, in the present case the Indiana legislature created neither the right to be vindicated, nor the statutory remedy for doing so. Instead, Congress did. In the court’s view, this distinction is irrelevant. What is important is that Congress created both a right and a remedy for an alleged violatin of that right. That makes it unnecessary for an Indiana common-law action to exist.

 

Mattingly did not pursue the statutory remedy available to him, by first filing a complaint with the Secretary of Labor. Therefore, allowing him to bring an action under state law for wrongful discharge would unnecessarily expand Indiana’s narrow public policy exceptions to employment at will. For this reason, Heartland’s motion for summary judgment will be granted.

 

C. Merits of Mattingly’s claim

Heartland has argued in the alternative that if the court does not find that Mattingly’s failure to file a complaint with the Secretary of Labor negates the existence of both his federal and state claims, the undisputed facts demonstrate that he was terminated for his unauthorized use of company equipment, and not because he refused to engage in illegal conduct, or in retaliation for his reporting of illegality. Given the court’s analysis above, consideration of this argument is not necessary, and would amount to an advisory opinion.

 

IV. CONCLUSION

It is undisputed that plaintiff Mattingly did not file a complaint with the Secretary of Labor pursuant to 49 U.S.C. § 31105(b). For the reasons explained above, that means that Heartland is entitled to judgment as a matter of law, and its motion for summary judgment (DE # 23) is GRANTED. The clerk shall enter final judgment in favor of defendant Heartland Express, Inc., of Iowa.

 

SO ORDERED.