United States Court of Appeals,

Ninth Circuit.

PACIFIC INDEMNITY COMPANY, Plaintiff–Appellee,

v.

ATLAS VAN LINES, INC., Defendant–cross–defendant–Appellee,

v.

Pickens Kane Moving & Storage Company, a corporation, Defendant–cross–claimant–Appellant.

Pacific Indemnity Company, Plaintiff–Appellee,

Atlas Van Lines, Inc., Defendant–cross–defendant–Appellant,

v.

Pickens Kane Moving & Storage Company, a corporation, Defendant–cross–claimant–Appellee.

 

OPINION

REAVLEY, Circuit Judge:

Pacific Indemnity Co. (“Pacific”) brought suit for carrier liability pursuant to 49 U.S.C. § 14706, the Carmack Amendment, against Atlas Van Lines, Inc. (“Atlas”) and Pickens Kane Moving & Storage Co. (“Pickens”) to recover $1 million in damages Pacific paid to its insureds, Ina and Murray Manaster, (the “Manasters”) when the Manasters’ shipment of household goods was destroyed by a fire while in transit from Chicago to Phoenix. Pickens was the receiving carrier, and the goods were destroyed in the custody of Atlas. Atlas and Pickens filed cross-claims against each other, also for carrier liability. On summary judgment, the district court held that Atlas was liable to both Pacific and Pickens for $52,500.00 or $5.00 per pound and that Pickens was liable to Pacific for $1 million. Additionally, the district court held that as to the cross-claims between Atlas and Pickens, Pickens was the prevailing party and, therefore, entitled to an award of the entirety of its expenses. Pickens appeals the district court’s judgment that Atlas is responsible for anything less than the full replacement value of the goods. Atlas appeals the district court’s judgment awarding costs to Pickens. We affirm.

 

Background

The facts of this case are relatively straight-forward and not in dispute. The Manasters desired to move their household goods, consisting mainly of fine arts and antiques, from Chicago to Phoenix. They requested a quote from Pickens. Pickens, in turn, requested a quote from nonparty TCI—a freight broker. TCI then requested a quote from Atlas. Atlas provided TCI with a quote based on the minimum tariff of $.60 per pound. TCI then submitted the quote to Pickens with the notation that the quote did not include insurance. Pickens submitted a quote to the Manasters. The Manasters requested $1 million in insurance coverage and the rate was adjusted accordingly. Pickens contracted with TCI, who contracted with Atlas for the shipment at the per pound rate, but Pickens never informed TCI or Atlas of the $1 million valuation.

 

On November 2, 2006, Atlas picked up the Manasters’ household goods from the Pickens warehouse. The Atlas bill of lading was signed by Pickens’ representative as shipper and by Atlas’ driver as carrier, and it listed the Manasters as the consignee. The bill of lading had a valuation section on its first page as follows:

 

VALUATION: The released rates  for shipments moving under this bill of lading vary with the services provided under the tariff and Carrier’s tariff is incorporated into this bill of lading for determination of which released rate applies. Shipper has released the entire shipment to a value not exceeding:

 

(TO BE COMPLETED BY THE SHIPPER SIGNING BELOW)

 

• The maximum released rate set forth in the tariff for shipments on which specified services are being provided, which may be either $.60 per pound per article or $5.00 per pound. (This is not insurance but a limit on Carrier’s Liability.)

 

• The declared value for the property of $_______. If this amount exceeds the maximum released rate in the tariff, Carrier shall obtain insurance in the amount on Shipper’s behalf for the charges set forth in the tariff.

 

IF NO DECLARATION IS MADE, THE SHIPMENT SHALL BE DEEMED RELEASED TO THE VALUE SET FORTH IN THE TARIFF.

 

Pickens’ representative signed the bill of lading but did not choose either option and did not indicate a declared value for the property.

 

Pickens also had a bill of lading for warehouse labor. In the signature block of the bill of lading, Pickens’ representative signed as the carrier and Atlas’ driver signed as the shipper. The valuation section of the bill of lading read:

 

SHIPPER MUST COMPLETE THIS VALUATION DESIGNATION

 

Unless the shipper expressly releases the shipment to a value of $.30 per pound per article, the mover’s maximum liability for loss of or damage to the shipment shall be an amount equal to $2.00 for each pound of weight in the shipment or the lump sum value declared by the shipper on this form, whichever is greater, subject to the valuation charges in the applicable tariff on file with the Illinois Commerce Commission.

 

If the shipper wishes to avoid these additional charges, the shipper must agree that if any articles are lost or damaged, the mover’s liability will not exceed 30 cents per pound for the actual weight for any lost or damaged article or articles in the shipment.

 

The shipment shall move subject to the rules and conditions of the mover’s tariff. Shipper hereby releases the entire shipment to a value not exceeding: _________________________.

 

Again, the valuation section of the bill of lading was left blank.

 

The Manasters’ property was destroyed by fire during transport while in the custody of Atlas. Pacific paid the Manasters’ claim in full for $1 million and was subrogated to their interests. Pacific then filed suit in the District Court of Arizona for carrier liability under the Carmack Amendment against both Pickens and Atlas. Pickens and Atlas cross-claimed against each other also for carrier liability. Pacific moved for summary judgment against Pickens and Atlas. Pickens moved for summary judgment against Atlas. Atlas moved for partial summary judgment against Pacific and Pickens to limit its liability.

 

The district court held that Atlas was liable to both Pacific and Pickens for $52,500.00 or $5.00 per pound, and that Pickens was liable to Pacific for $1 million. Pickens moved for reconsideration, which the district court denied. Pickens also moved for reasonable expenses from Atlas. The district court granted that motion, holding that Pickens, as the prevailing party, was entitled to recover the entirety of its expenses from Atlas. Pickens appealed from the judgment, specifically the apportionment of damages. Atlas separately appealed the judgment, specifically the award of costs to Pickens. The appeals were consolidated and are now before the court.

 

Analysis

The Carmack Amendment is a part of the Interstate Commerce Act, which “provides the exclusive cause of action for interstate shipping contract claims.” White v. Mayflower Transit, L.L.C., 543 F.3d 581, 584 (9th Cir.2008). Two sections of the Carmack Amendment are at issue in this case. The first is § 14706(f), entitled “Limiting liability of household goods carriers to declared value.” The section reads:

 

(1) In general.—A carrier or group of carriers subject to jurisdiction under subchapter I or III of chapter 135 may petition the Board to modify, eliminate, or establish rates for the transportation of household goods under which the liability of the carrier for that property is limited to a value established by written declaration of the shipper or by a written agreement.

 

(2) Full value protection obligation.—Unless the carrier receives a waiver in writing under paragraph (3), a carrier’s maximum liability for household goods that are lost, damaged, destroyed, or otherwise not delivered to the final destination is an amount equal to the replacement value of such goods, subject to a maximum amount equal to the declared value of the shipment and to rules issued by the Surface Transportation Board and applicable tariffs.

 

(3) Application of rates.—The released rates established by the Board under paragraph (1) (commonly known as “released rates”) shall not apply to the transportation of household goods by a carrier unless the liability of the carrier for the full value of such household goods under paragraph (2) is waived, in writing, by the shipper.

 

49 U.S.C. § 14706(f). In 2005, Congress added subsections (2) and (3), which form the basis of Pickens’ argument. The interpretation of these subsections is a matter of first impression.

 

The second provision of the Carmack Amendment at issue here is the cost apportionment provision which reads:

 

The carrier issuing the receipt or bill of lading under subsection (a) of this section or delivering the property for which the receipt or bill of lading was issued is entitled to recover from the carrier over whose line or route the loss or injury occurred the amount required to be paid to the owners of the property, as evidenced by a receipt, judgment, or transcript, and the amount of its expenses reasonably incurred in defending a civil action brought by that person.

 

49 U.S.C. § 14706(b). We have not addressed the possible apportionment of costs among carriers. It is also a matter of first impression.

 

1. Replacement Value of Household Goods

On summary judgment, the district court held that Atlas was liable to both Pacific and Pickens for $52,500.00 or $5.00 per pound, and that Pickens was liable to Pacific for $1 million. Pickens does not appeal the assessment of liability itself, rather it argues that the apportionment of the damages was in error. “We review the grant of summary judgment de novo.” Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 305 F.3d 913, 916 (9th Cir.2002). The district court’s interpretation of 49 U.S.C. § 14706 is a question of law, which we review de novo. Id. One reason that the district court apportioned the damages as it did was that it construed 49 U.S.C. §§ 14706(f)(2) and (3) to limit Atlas’ liability to the tariff amount of $5.00 per pound in the absence of a declared value. We agree.

 

The Carmack Amendment allows carriers to limit their liability for shipments of household goods under certain circumstances. In particular, “[u]nless the carrier receives a waiver in writing under paragraph (3), a carrier’s maximum liability for household goods that are lost, damaged, destroyed, or otherwise not delivered to the final destination is an amount equal to the replacement value of such goods[.]” 49 U.S.C. § 14706(f)(2). However, that subsection goes on to say that “the replacement value of such goods[is] subject to a maximum amount equal to the declared value of the shipment and to rules issued by the Surface Transportation Board and applicable tariffs.” Id.

 

Here, Pickens failed to declare a value for the shipment. It argues that, in the absence of a written waiver, the failure entitles Pickens to the full replacement value of the shipment. And, it urges that the full replacement value in this case is $1 million. Pickens is partially correct; it is entitled to the replacement value, but that value is $52,500.00. Subsection (f)(2) states that the replacement value of the household goods is subject to or conditioned upon several possible factors. The first is the declared value of the property. Since there is no declared value in this case, that condition is not implicated.

 

Replacement value is also conditioned on the rule issued by the Surface Transportation Board (the “Board”). The Board has determined that “when a shipper elects the [full value protection] option but neglects to write a valuation figure on the bill of lading or contract” the carrier is liable for an assumed valuation “set at $5,000 or $4.00  times the actual total weight in pounds of the shipment, whichever is greater.” Released Rates of Motor Common Carriers of Household Goods, Amendment No. 5 to Released Rates Decision No. MC–999, 2007 WL 1696990 (S.T.B. June 11, 2007) (“S.T.B. Amendment 5”). In other words, when a shipper does not a declare a value for a shipment, the replacement value is deemed to be $4.00 per pound or a minimum of $5,000.00. Id.

 

 

Congress gave the Board primary authority for enforcement of the Interstate Commerce Act. Fulfillment Servs., Inc. v. United Parcel Serv., Inc., 528 F.3d 614, 616–17 (9th Cir.2008). “Where there is a challenge to the agency’s interpretation of the statute that it administers, we apply the analytical framework set forth in Chevron [.]” DHX, Inc. v. Surface Transp. Bd., 501 F.3d 1080, 1086 (9th Cir.2007) (internal citation omitted). “ ‘If the intent of Congress is clear … [we] must give effect to the unambiguously expressed intent of Congress.’ “ Id. (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–44, 104 S.Ct. 2778, 2781–82, 81 L.Ed.2d 694 (1984)). “If however, the meaning of the statute is ambiguous, ‘the question for the court is whether the agency’s answer is based on a permissible construction of the statute.’ “ Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. at 2782). “ ‘[T]he court does not simply impose its own construction on the statute….’ “ Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. at 2782). Since the statute itself is arguably ambiguous regarding shipments with no declared value, we must ask whether the Board’s order was permissible. See id.

 

Reviewing § 14706 as a whole, it is evident that the Board’s order regarding undeclared value is permissible. Subsection (f) is entitled “Limiting liability of household goods carriers to declared value.” § 14706(f) (emphasis added). The Board’s rule does just that. S.T.B. Amendment 5. It prevents carriers from being subjected to unlimited liability when cargo of undeclared value is destroyed. And, it also protects an unwary shipper from unscrupulous carriers by setting the replacement value at the higher tariff amount of $4.00 per pound, instead of the released rate of $.60 per pound. We presume that Congress was aware of the Board’s interpretation of the valuation of shipments with an undeclared value when it amended the Carmack Amendment in 2005. Traynor v. Turnage, 485 U.S. 535, 546, 108 S.Ct. 1372, 1380, 99 L.Ed.2d 618 (1988). Congress made no express provision for replacement values of undeclared shipments but instead chose to condition the replacement value on the Board’s rules. § 14706(f)(2). The Board’s rule is based on a permissible interpretation of subsections (f)(2) and (f)(3). Therefore, it must be accorded deference. DHX, 501 F.3d at 1086.

 

Last, the replacement value is conditioned on “applicable tariffs.” § 14706(f)(2). The $4.00 per pound tariff was approved by the Board after full notice and comment rule-making. Released Rates of Motor Common Carriers of Household Goods, Amendment No. 4 to Released Rates Decision No. MC–999, 2001 WL 1637941 (S.T.B. Dec.21, 2001). Atlas adjusts this tariff to $5.00 per pound in its exceptions to tariffs. The fact that this tariff was applicable to shipments with undeclared values was based on the Board’s rule discussed above. The plain language of the statute and the Board’s interpretation of the statute operate to limit Atlas’ liability to the tariff amount on these facts.

 

Pickens argues that the published tariff of $4.00 per pound cannot apply here because subsection (f)(3) states that “[t]he released rates … shall not apply to the transportation of household goods by a carrier unless the liability of the carrier for the full value of such household goods under paragraph (2) is waived, in writing, by the shipper.” § 14706(f)(3). But again, without a declared value for the goods, the replacement value is deemed to be the tariff of $4.00 per pound as described above. While Pickens did not waive its entitlement to the “full value of such household goods under paragraph (2),” because it failed to declare a value for the shipment, the full value is deemed to be the tariff of $4.00 per pound pursuant to paragraph (2) as described above. The district court correctly interpreted these subsections.

 

2. Apportionment of Costs

Atlas appeals the district court’s judgment awarding Pickens all of its requested costs under § 14706(b), totaling $74,402.35. A district court’s award of costs is reviewed for an abuse of discretion.   Miles v. California, 320 F.3d 986, 988 (9th Cir.2003). “If an exercise of discretion is based on an erroneous interpretation of the law, the ruling should be over-turned.” Id.

 

On appeal, Atlas now makes three arguments. First, Atlas contends that because the district court held Pickens liable to Pacific for $1 million, Pickens is not an innocent party and therefore not entitled to shift its costs to Atlas. Citing no law for this proposition, Atlas contends that in order to recover expenses under § 14706(b), Pickens must be completely blameless. Although that interpretation could be plausible if the damage to the shipment occurred while in the custody of both Atlas and Pickens, on the facts of this case, the argument fails.

 

[10] The Carmack Amendment imposes strict liability upon receiving carriers and delivering carriers in order to “relieve cargo owners ‘of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.’ “ Kawasaki Kisen Kaisha Ltd. v. Regal–Beloit Corp., ––– U.S. ––––, ––––, 130 S.Ct. 2433, 2441, 177 L.Ed.2d 424 (2010) (quoting Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 502, 94 L.Ed. 698 (1950)); 49 U.S.C. § 14706(a). Section 14706(b) allows the carrier held initially liable to recover from the carrier in control of the shipment when it was damaged. § 14706(b); Mason & Dixon Intermodal, Inc. v. Lapmaster Int’l LLC, 632 F.3d 1056, 2011 WL 135084, at *5–6 (9th Cir. Jan.18, 2011) (citing Georgia, Florida, & Atlantic Ry. v. Blish Milling Co., 241 U.S. 190, 196, 36 S.Ct. 541, 544, 60 L.Ed. 948 (1916)). Atlas does not deny that the shipment was destroyed while in Atlas’ care. If Pickens had properly declared the value of the shipment and paid the insurance fees to Atlas, Atlas would have owed the entire $1 million. Under the plain language of the statute, Pickens is entitled to its reasonable fees from the carrier over whose line or route the injury occurred—here, Atlas. See § 14706(b).

 

[11][12] Second, Atlas argues that the district court erred when it determined that Pickens was the prevailing party. Atlas argues that because Pickens recovered only $52,500 of the $1 million it sought, Pickens did not prevail. It is inappropriate to apply the prevailing party analysis here, because this statute entitling Pickens to recover its costs contains no prevailing party requirement. § 14706(b). This is unlike the language in the same statutory scheme awarding attorney’s fees to shippers. Section 14708(d) states that “[i]n any court action to resolve a dispute between a shipper of household goods and a carrier providing transportation or service …, the shipper shall be awarded reasonable attorney’s fees if … the shipper prevails in such court action[.]” § 14708(d)(2). “[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 951, 151 L.Ed.2d 908 (2002) (internal quotations omitted). Therefore, a prevailing party analysis is not necessary, nor even proper, under § 14706(b).

 

[13][14] In its last point, Atlas argues that because the costs are awarded under a subsection entitled apportionment, Pickens should be entitled to only 5.25% of its costs, the same percentage of the total damages attributed to Atlas. Atlas is really challenging the reasonableness of the award. The statute provides a mechanism for unreasonable or disproportionate costs by allowing recovery of the amount of expenses “reasonably incurred.” § 14706(b). At the district court level, Atlas did not contest the reasonableness of the fees, except in relation to the judgment. It has therefore waived its ability to raise the issue now. E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 901 (9th Cir.1994). However, even if Atlas had not waived the argument it is unavailing. As discussed above, Pickens was not the carrier in whose custody the shipment was destroyed and was therefore not liable for the damage in this case. If the actual damage had occurred in the custody of several carriers, then perhaps the costs would be apportioned among them. However, on the facts of this case, Atlas had custody of the shipment when it was destroyed and is liable to Pickens. Therefore, Pickens is entitled to its costs under § 14706(b).

 

The judgment of the district court is AFFIRMED.

 

FN* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

 

FN** The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.

 

“Released rates” are rates approved by the Surface Transportation Board which a carrier may use to limit its liability through the written declaration of the shipper. 49 U.S.C. § 14706(f)(1); Released Rates of Motor Common Carriers of Household Goods, Amendment No. 5 to Released Rates Decision No. MC–999, 2007 WL 1696990 (S.T.B. June 11, 2007).

 

Pacific also amended its suit to add common law negligence claims. Those claims were dismissed as preempted by the Carmack Amendment. Pacific does not appeal the judgment of the district court.

 

Aside from the district court in this case, the only other court to address these subsections is the United States District Court for the Eastern District of Virginia in an unpublished opinion. Boles v. Destination Movers, Inc., No. 1:09–cv–19, 2009 WL 1974459 (E.D.Va. Jul.6, 2009).

 

Atlas adjusted this amount to $5.00 per pound in its Exceptions to [Household Goods] Tariff 400 Series. Carriers are allowed to adjust the tariffs upwards in their exceptions.

 

In 2001 the Board found that the average value for a shipment of household goods was $4.50 per pound. Released Rates of Motor Common Carriers of Household Goods, Amendment No. 4 to Released Rates Decision No. MC–999, 2001 WL 1637941, at(S.T.B. Dec.21, 2001).

United States District Court,

D. Colorado.

David Charles HOLDBROOK, Plaintiff,

v.

SAIA MOTOR FREIGHT LINE, LLC, Defendant.

 

Civil Action No. 09–cv–02870–LTB–BNB.

April 20, 2011.

 

ORDER

LEWIS T. BABCOCK, District Judge.

This case is before me on Defendant SAIA Motor Freight Line, LLC’s (“SAIA”) Motion for Summary Judgment [Doc # 38]. After consideration of the motion and all related pleadings, as well as the case file, I grant the motion in part and deny it in part for the following reasons.

 

I. Facts

In this lawsuit, Plaintiff David Charles Holdbrook (“Holdbrook”) asserts claims wrongful discharge in violation of public policy and for intentional infliction of emotional distress. The following facts are undisputed for purposes of SAIA’s pending motion unless otherwise noted.

 

Holdbrook was hired by SAIA, a trucking company, as a city driver in its Denver facility in October of 2006. During the relevant time, Daniel De Souza (“DeSouza”) was the terminal manager for SAIA’s Denver facility, and Bill Kennedy (“Kennedy”) was the facility’s regional manager. As a city driver, Holdbrook had to be able to frequently load and unload trailers and to lift, without assistance, 100 pounds to waist height, 75 pounds to shoulder height, and 50 pounds overhead. As a city driver, Holdbrook also had to complete vehicle inspection reports noting any maintenance issues he observed with tractors and trailers assigned to him.

 

On occasion, maintenance issues noted by Holdbrook were fixed or the subject vehicles were taken out of service and different vehicles assigned to him. Holdbrook alleges, however, that he was once instructed to drive a tractor that he did not feel was safe and was only assigned another tractor after he refused to do so. Holdbrook further alleges that he was instructed to drive trailers that he did not feel were safe on four occasions. On one of these occasions, Holdbrook was assigned another trailer after he refused to drive the one originally assigned. On another occasion, the assigned trailer was repaired after he refused to drive it in its existing condition. On the other two occasions, Holdbrook proceeded to drive the assigned trailers in their existing conditions. Both DeSouza and the shop supervisor made negative comments about Holdbrook voicing concerns regarding the safety of SAIA vehicles.

 

On July 26, 2007, Holdbrook suffered a work-related injury when unloading a truck with an allegedly defective lift gate. After examination, a workers’ compensation doctor released Holdbrook to work with restrictions. Specifically, Holdbrook was limited to no repetitive lifting over 20 pounds; no bending greater than 10 times per hour; and no pushing and/or pulling over 20 pounds of force. Holdbrook was also told that he could not drive a truck. Holdbrook filed a workers’ compensation claim on or about August 16, 2007.

 

Upon returning to work, Holdbrook was given a transitional work assignment performing data entry, filing, and other tasks. As part of his transitional work assignment, Holdbrook worked with undeliverable product and performed yard inspections. When working in these areas, Holdbrook was required to climb, bend, and lift to a degree that he felt exceeded his work restrictions. Holdbrook was also asked to drive a truck on two occasions in violation of his work restrictions but refused to do so. Throughout his transitional work assignment, Holdbrook felt “harassed” and “humiliated” by De Souza, Kennedy, and other SAIA drivers. Among other things, in staff meetings attended by Holdbrook, Kennedy and DeSouza discussed that drivers would not be getting annual raises because of on-the-job injuries that had occurred.

 

SAIA maintains an attendance policy that assesses points each time an employee misses work subject to certain exemptions including absences due to “compensable on-the-job injuries.” An employee assessed with 12 or more points within a 12 month period is subject to termination under this policy. On October 3, 2007, Holdbrook received “final written notice … that [his] job was in jeopardy based on [his] failure to report to work as scheduled.” Additionally, this notice advised Holdbrook that he had been assessed with 12 points and that an assessment of additional points would result in further disciplinary action “up to and including termination.”

 

Holdbrook called in sick on November 6, 2007 and was terminated on November 13, 2007. SAIA contends that its human resources department made the decision to terminate Holdbrook after DeSouza notified the department that Holdbrook had reached the maximum number of points allowed under the attendance policy. Holdbrook contends, however, that he was terminated in retaliation for the safety concerns he raised regarding SAIA’s tractors and trailers and for being “a drain on the company” as a result of his work-related injury.

 

At the time of his deposition on June 30, 2010, Holdbrook conceded that he was unable to work as a city driver and that he had not been told he could now drive a truck. Holdbrook has also disclosed an expert report dated in August of 2010 in which Doris J. Shriver, OTR, FAOTA, QRC, CLCP, opines that Holdbrook “cannot do any work as it is customarily defined.”

 

II. Standard for Review

The very purpose of a summary judgment motion under Fed.R.Civ.P. 56 is to assess whether trial is necessary. White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir.1995). Rule 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The nonmoving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

 

A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. U.S., 622 F.2d 516, 519 (10th Cir.1980); Fed.R.Civ.P. 56(e). These specific facts may be shown “by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves.” Celotex, 477 U.S. at 324.

 

If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Celotex, 477 U.S. at 323. The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor, a reasonable jury could return a verdict for that party. Anderson Liberty Lobby, Inc., 477 U.S. at 252; Mares, 971 F.2d at 494.

 

III. Analysis

Holdbrook’s Complaint asserts two claims for wrongful termination against public policy (First and Second Claims for Relief) and a claim for intentional infliction of emotional distress (Third Claim for Relief) against SAIA. The first of Holdbrook’s wrongful termination claims alleges that SAIA terminated Holdbrook “as a direct and proximate result of [Holdbrook] refusing to perform the illegal act of driving an unsafe commercial vehicle on the public roadways in violation of Federal and State law.” See Complaint, ¶ 51. The second of these claims alleges that SAIA terminated Holdbrook “in retaliation for [Holdbrook] filing a worker’s compensation claim arising from a work-related injury he suffered while employed by [SAIA], and/or for seeking medical care for said injury, and/or refusing to violate medical restrictions imposed upon [Holdbrook] for said injury.” See Complaint, ¶ 56. SAIA seeks summary judgment on each of Holdbrook’s claims as well as Holdbrook’s ability to recover front pay as damages in the event any of his claims proceed to trial. Colorado state law controls in this diversity action.

 

A. Holdbrook’s Claims for Wrongful Termination Against Public Policy

The public policy exception to the employment at-will doctrine allows at-will employees to bring to bring a claim for wrongful discharge if they allege termination for conduct that is protected or encouraged as a matter of public policy. Bonidy v. Vail Valley Center for Aesthetic Dentistry, 232 P.3d 277, 281 (Colo.App.2010). To establish such a claim, a plaintiff must prove:

 

(1) the employer directed the employee to perform an illegal act as part of the employee’s work-related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege; (2) the action directed by the employer would violate a specific statute related to public health, safety, or welfare, or would undermine a clearly expressed policy relating to the employee’s basic responsibilities as a citizen or the employee’s right or privileges as a worker; (3) the employee was terminated as a result of refusing to perform the act directed by the employer; and (4) the employer was aware that the employee’s refusal to perform the act was based on the employee’s reasonable belief that the directed act was unlawful.

 

Id. (citing Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo.1992)).

 

SAIA argues that Holdbrook cannot meet this burden of proof on either of his wrongful termination claims. I disagree.

 

1. Wrongful Termination Claim Based on Refusal to Drive Unsafe Vehicles

SAIA first argues that Holdbrook’s claim for wrongful termination based on his refusal to drive unsafe vehicles must fail because a statutory remedy already exists for such conduct. See Corbin v. Sinclair Marketing, Inc., 684 P.2d 265, 267 (Colo.App.1984) (public policy exception to at-will employment doctrine is not available when statute at issue provides employee with wrongful discharge remedy). In support of this argument, SAIA cites the Surface Transportation Assistance Act (the “STAA”), 49 U.S.C. § 31105, which prohibits the discharge of an employee who refuses to operate a vehicle because such operation would violate a federal regulation related to commercial vehicle safety and outlines a procedure for an aggrieved employee to file a complaint with the Secretary of Labor. See 49 U.S.C. § 31105(a)(1)(B) & (b). The STAA further provides that the Secretary of Labor can order a person who has violated its provisions to “pay compensatory damages, including back pay with interest and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.” 49 U.S.C. § 31105(b)(3)(A)(iii).

 

In making this argument in its motion, SAIA assumed that Holdbrook was relying on the STAA as the “Federal and State law” that made it illegal for him to drive unsafe commercial vehicles on the public roadways. In his response to SAIA’s motion, however, Holdbrook cites C.R.S. §§ 24–33.5–201 & 203 and related regulations and argues that the STAA does not preempt state law governing the same area. SAIA argues that Holdbrook’s citation to other statutory authority is irrelevant because both the STAA and the Colorado statutes cited by Holdbrook are based on the same Federal Motor Carrier Safety Regulations. SAIA further argues that its argument is not one of preemption but rather recognition of the limits of the common law claim of wrongful discharge against public policy.

 

Holdbrook is correct that the STAA does not preempt his state law claim for retaliatory discharge based on his refusal to drive unsafe vehicles. See 49 U.S.C. § 31105(f) (“Nothing in this section preempts or diminishes any other safeguards … provided by Federal or State law.”). As argued by SAIA, however, I must also consider whether this claim is cognizable under Colorado common law in light of the remedy provided by the STAA. See Masters v. Daniel Int’l Corp., 917 F.2d 455, 456 (10th Cir.1990). Colorado’s appellate courts have declined to recognize claims for wrongful discharge against public policy when the same statute on which the plaintiff bases his claim provides a remedy. Corbin, supra. Accord Ferris v. Bakery, Confectionery and Tobacco Union, Local 26, 867 P.2d 38, 45 (Colo.App.1993); Gamble v. Levitz Furniture Co. of the Midwest, Inc., 759 P.2d 761, 766 ((Colo.App.1988). Notwithstanding the regulatory overlap between the STAA and C.R.S. §§ 24–33.5–201 & 203, the fact remains that Holdbrook’s wrongful discharge claim is based on the latter which SAIA does not argue contains an adequate remedial scheme. In addition, I note that none of the Colorado cases cited by SAIA specifically addresses the relationship between the STAA and wrongful discharge claims brought under similar state laws. I therefore conclude that Holdbrook’s claim for wrongful termination based on his refusal to drive unsafe vehicles is not precluded by the statutory remedy set forth in the STAA.

 

SAIA also argues that this claim must fail because Holdbrook cannot show that he was terminated for refusing to drive unsafe vehicles. In support of this argument, SAIA notes that Holdbrook was terminated more than three months after he last drove trucks for SAIA. Holdbrook therefore cannot rely on temporal proximity alone to establish that he was terminated for refusing to drive unsafe vehicles. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (three-month period, standing alone, is insufficient to establish causation for retaliatory conduct). Rather, Holdbrook must offer additional evidence to establish causation. Id. Holdbrook responds with evidence of a number of negative actions SAIA took against him after he voiced vehicle safety concerns and evidence to contradict SAIA’s assertion that he violated its attendance policy. In addition, although Holdbrook cannot rely on temporal proximity alone to establish that he was terminated for refusing to drive unsafe vehicles, the relatively short time frame between when he voiced his concerns over the safety of SAIA vehicles and when SAIA allegedly began taking negative actions against him is some evidence of causation. The cumulative effect of this evidence is sufficient to support a finding that Holdbrook was terminated for refusing to drive unsafe vehicles. SAIA is therefore not entitled to summary judgment on Holdbrook’s claim for wrongful discharge against public policy based on his refusal to drive unsafe vehicles.

 

2. Wrongful Termination Claim Based on Work–Related Injury

Again, SAIA argues that this claim must fail due to lack of temporal proximity as well as Holdbrook’s failure to present other evidence of causation. The evidence presented by Holdbrook of negative actions SAIA took against him following his work-related injury and to contradict SAIA’s assertion that he violated its attendance policy, as well as the relevant time frame, are likewise sufficient to establish that Holdbrook was terminated in retaliation for actions he took in response to the work-related injury he suffered. SAIA is therefore not entitled to summary judgment on Holdbrook’s claim for wrongful discharge against public policy based on actions he took in response to his work-related injury.

 

B. Holdbrook’s Claim for Intentional Infliction of Emotional Distress

In support of his claim for intentional infliction of emotional distress, Holdbrook alleges that

 

[SAIA] engaged in extreme and outrageous activity by, but not limited to, subjecting [Holdbrook] to ridicule and disdain in front of other employees at driver meetings, and/or by encouraging other employees to retaliate against [Holdbrook] for filing a workers’ compensation claim, and/or by directing [Holdbrook] to violate medical restrictions, and/or by repeatedly directing Plaintiff to violate Federal and State laws which violation would have resulted in the loss of his CDL and other fines and possible imprisonment.

 

See Complaint, ¶ 59.

 

SAIA first argues that this claim is preempted by the Colorado’s Workers’ Compensation Act (the “Act). The Act “provides exclusive remedies for employees suffering work-related injuries and occupational diseases.” Horodyskyj v. Karanian, 32 P.3d 470, 474 (Colo.2001). Under the Act, an employee is entitled to compensation “[w]here, at the time of the injury, the employee is performing service arising out of and in the course of the employee’s employment. C.R.S. § 8–40–101. “[A]n injury occurs ‘in the course of’ employment when it takes place within the place and time limits of the employment relationship and during an activity connected with the employee’s job-related functions.”   Horodyskyj, 32 P.3d at 475. “The term ‘arises out of’ refers to the origin or cause of an injury.” Id. “An injury ‘arises out of’ employment when it has its origins in an employee’s work-related functions and is sufficiently related to those functions to be considered part of the employee’s employment contract.” Id. (citation omitted).

 

Based on the supporting allegations, Holdbrook cannot dispute that his alleged emotional distress occurred in the course of his employment with SAIA. Holdbrook argues, however, that this injury did not arise out of his employment with SAIA because being directed to drive unsafe vehicles is tantamount to being directed to commit illegal acts and therefore cannot be part of his employment contract as a matter of law. Holdbrook cites no authority for this proposition and indeed the only logical inference from Horodyskyj in which the Colorado Supreme Court recognized that certain types of willful assaults are preempted by the Act, id. at 475, is that an assertion of illegality does not preclude preemption.

 

The conduct Holdbrook cites in support of his claim for intentional infliction of emotional distress claim is all work-related and not the result of any private dispute. See Horodyskyj, supra, 32 P.3d at 477 (inherently private assaults that are not preemepted by the Act “have their origin in the private affairs of the claimant or the tortfeasor and are unrelated to their respective work-related functions.”). I therefore conclude that this claim is preempted by the Act.

 

Even assuming arguendo that Holdbrook’s claim for intentional infliction of emotional distress is not preempted by the Act, Defendant also argues that the facts of this case are insufficient to establish outrageous conduct as a matter of law. I agree.

 

“The level of outrageousness required for conduct to create liability for intentional infliction of emotional distress is extremely high.” McCarty v. Kaiser–Hill Co., L.L.C., 15 P.3d 1122, 1126 (Colo.App.2000). “Outrageous conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Destefano v. Grabian, 763 P.2d 275, 286 (Colo.1988) (citations omitted). “Although the question whether conduct is outrageous is generally one of fact to be determined by a jury, it is the initial responsibility of a court to determine whether reasonable persons could differ on the question.” McCarty, supra.

 

Holdbrook attempts to establish that his allegations meet the high standard for outrageous conduct with unsupported allegations that distort the undisputed facts in this case. For instance, Holdbrook asserts that SAIA “directed him to perform numerous illegal acts which would result in dangerous commercial trucks on Colorado’s public roads” when, as set forth above, the evidence supports only a finding that Holdbrook was asked to drive vehicles that he felt were unsafe on 4–5 occasions and that he was only required to drive an objectionable vehicle on two occasions. Holdbrook’s allegations that are supported by the record are insufficient to support a claim of outrageous conduct as a matter of law.

 

For these reasons, SAIA is entitled to the entry of summary judgment in its favor on Holdbrook’s’ claim for intentional infliction of emotional distress.

 

C. Holdbrook’s Recovery of Front Pay Damages

Because I have concluded that SAIA is not entitled to summary judgment on Holdbrook’s wrongful discharge claims, I must consider SAIA’s argument that Holdbrook is not entitled to recover front pay as damages as a matter of law.

 

SAIA argues that Holdbrook’s is precluded from recovering front pay as damages because he is incapable of performing the job from which he was terminated or any other job. In support of this argument, SAIA cites Colorado case law for the general principle that a wrongfully discharged plaintiff is only entitled to recover these economic losses that would place the plaintiff in the same economic position that the plaintiff would have been in but for the wrongful discharge. See Genova v. Longs Peak Emergency Physcians, P. C., 72 P.3d 454, 460 (Colo.App.2003). SAIA does not argue that Colorado’s Workers’ Compensation Act is Holdbrook’s exclusive remedy or that Holdbrook is precluded from seeking other types of damages, and Holdbrook’s response misses the point to the extent it argues these issues.

 

Holdbrook also argues that he is entitled to recover front pay as damages because the injury that has rendered him incapable from returning to work as a city driver is SAIA’s failure to fix the load gate on the truck that injured him in violation of the law. As SAIA notes, however, Holdbrook’s claims against it are based on its allegedly wrongful conduct in terminating his employment and not on any allegedly wrongful conduct that caused his work-related injury. To the extent that Holdbrook is unable to work in his former capacity as a city driver or any other capacity, an award of front pay to Holdbrook on his wrongful discharge claims would place him in a better position than he would have been in but for his wrongful termination contrary to Colorado law. Thus, in the event Holdbrook prevails on his wrongful discharge claims at trial, he is precluded from recovering front pay as damages unless he can prove by a preponderance of the evidence that he is capable of working in some capacity.

 

IV. Conclusion

For the reasons set forth above, IT IS HEREBY ORDERED that

 

1. Defendant SAIA’s Motion for Summary Judgment [Doc # 38] is GRANTED IN PART and DENIED IN PART;

 

2. Plaintiff Holdbrook’s claim for intentional infliction of emotional distress is DISMISSED WITH PREJUDICE; and

 

3. In the event Plaintiff Holdbrook prevails on either of his claims for wrongful discharge against public policy, he may only recover front pay as damages to the extent he is able to prove by a preponderance of the evidence that he is capable of working in some capacity.