United States Court of Appeals,

Eleventh Circuit.

OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA, INC., Plaintiff–Appellee,

v.

NATIONAL INTERSTATE INSURANCE COMPANY, C & K Trucking, LLC, Defendants–Appellants,

Eugene Howard, et al., Ruth H. Mathis, James E. Mathis, Defendants–Appellees.

 

Brian J. Duva, Michael S. Fineman, Kristen M. Kelly, John Timothy Wooten, Mozley Finlayson & Loggins, LLP, Atlanta, GA, Joseph H. Barrow, Barrow & Ballew, PC, Savannah, GA, for Plaintiff–Appellee.

 

Joseph P. Brennan, Maria Christina Danello, Brennan & Wasden, LLP, Savannah, GA, for Defendants–Appellees.

 

Appeal from the United States District Court for the Southern District of Georgia. D.C. Docket No. 4:11–cv–00032–WTM–GRS.

 

Before DUBINA, Chief Judge, TJOFLAT and MARCUS, Circuit Judges.

 

PER CURIAM:

*1 Defendants/Appellants National Interstate Insurance Company (“National”) and C & K Trucking, LLC (“C & K”) (collectively “Appellants”) appeal the district court’s entry of summary judgment in favor of Plaintiff/Appellee Occidental Fire & Casualty Company of North Carolina, Inc. (“Occidental”) in this declaratory judgment action involving automobile insurance policies. The issue presented on appeal is simply whether the district court properly granted summary judgment to Occidental and denied summary judgment to National and C & K. For the reasons set forth below, we affirm the judgment of the district court.FN1

 

I.

At all relevant times, Eugene Howard (“Howard”) was an independent contractor for C & K. Howard’s agreement with C & K provided that he would be the owner/operator of his 1986 Kenworth truck tractor (“tractor”), and C & K would be the authorized carrier by virtue of the operating authority issued by the Federal Motor Carrier Safety Administration. Howard, a Georgia resident, owned his tractor and also had a vehicle for personal use. Howard’s daily routine was to “bobtail” his tractor—drive without a trailer—the 29–mile route on Highway 21 from his home in Springfield, Georgia to C & K’s trucking terminal in Port Wentworth, Georgia. Howard typically arrived at C & K each morning around eight o’clock and waited to be dispatched to pick up a load. C & K’s normal dispatching process required local drivers to drive, not telephone, to the terminal to receive dispatch orders. On a typical work day, Howard did not know what he was going to haul, as he was never given dispatch orders until after he arrived at the C & K terminal.

 

On Saturday, January 30, 2010, Howard hauled trailers for C & K.FN2 On his way home from work, Howard was involved in a motor vehicle accident. He completed an accident report, and David Lewis, C & K’s terminal manager, instructed Howard to bring the report to C & K on Monday when he came to work. Howard opted not to go to work on Monday, February 1, 2010. While bobtailing to the C & K terminal the morning of Tuesday, February 2, 2010, Howard was involved in a second accident, this time with Ruth Mathis, the accident at issue in this case. The accident occurred at approximately eight o’clock and about onequarter mile from the C & K terminal.

 

At the time of the accident with Ruth Mathis, Howard had two insurance policies covering his tractor: one, a bobtail policy providing non-trucking liability coverage from Occidental; the other, a commercial general liability policy from National.

 

Occidental’s non-trucking policy expressly excludes coverage when the vehicle is being “[u]sed to carry property in any business or in route for such purpose.” [R. 38–6 at 2.] National’s commercial policy provides coverage for a covered auto when that auto “[i]s being used exclusively in [C & K’s] business as a ‘trucker[.]’ “ [R. 40–6 at 3–4.] The National policy defines “trucker” as “any person … engaged in the business of transporting property by ‘auto’ for hire.” [Id. at 13 (emphasis added).]

 

*2 Following the accident, Ruth and James Mathis (“the Mathises”) filed suit against Howard in Georgia state court. Occidental then filed this declaratory action against National, C & K, Howard, and the Mathises, alleging that its policy does not provide coverage to Howard for the February 2, 2010 accident. Occidental and National and C & K filed cross motions for summary judgment. Occidental argued that Howard was operating his tractor to carry for C & K, thus excluding coverage under the Occidental policy. National and C & K disagreed, arguing that Howard was not operating his tractor in the business of C & K at the time of the February 2, 2010 accident. The district court granted summary judgment in favor of Occidental.

 

II.

“We review de novo the district court’s rulings on the parties’ cross motions for summary judgment.” Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir.2011). “[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). The parties agree that Georgia contract law governs this dispute.

 

III.

Appellants’ appeal boils down to their argument that Howard had completed any runs he had previously been assigned by C & K, and that he was not in his “regular work pattern or operational routine” by virtue of his accident on Saturday, January 30, 2010.FN3 Relevant Georgia law provides that “a lessor may remain in the trucking business, even after he has delivered his load, if he is acting within his normal ‘work pattern’ or ‘operational routine’ in furtherance of the interests of the lessee/ trucking company.” Liberty Mut. Fire Ins. Co. v. Axis Surplus Ins. Co., 294 Ga.App. 417, 419, 669 S.E.2d 219, 221 (2008). Appellants argue that Howard was ineligible for dispatch following the January 30, 2010, accident until C & K “corporate” issued its approval for Howard to receive further orders, and that Howard knew or should have known that.FN4 Thus, they argue, he was not “on call” to receive a dispatch at the time of his accident with Ruth Mathis, and therefore, was outside of his normal work pattern and operational routine, i.e., outside of C & K’s “trucking business.”

 

[1] While Appellants’ argument is creative, it is not persuasive. First, Howard’s normal work pattern was to bobtail his tractor to the C & K terminal, receive and perform dispatch orders, drive his tractor home, and park it in his yard. There is no evidence that anyone at C & K told Howard that he was suspended or ineligible to receive dispatch orders after the January 30, 2010, accident. There is also no evidence that he was ever made aware of C & K’s policy of requiring approval from the company before allowing a driver involved in an accident to receive dispatch orders. Moreover, as the district court pointed out, Howard was not on a personal errand that might have taken him out of his normal work pattern and operational routine. Howard was one-quarter mile from the C & K terminal when the accident with Ruth Mathis occurred, and he testified numerous times that he owns a separate vehicle for personal use and does not drive his tractor unless he is going to or from work. Appellants’ conclusory allegation that Howard would not have been dispatched on February 2, 2010, had he arrived without incident to the C & K terminal on that date, is not sufficient to defeat Occidental’s motion for summary judgment. Howard’s bobtailing to the C & K terminal on February 2, 2010, was within his normal work pattern or operational routine as a trucker as defined by Georgia case law. See Liberty Mut., 294 Ga.App. at 419–20, 669 S.E.2d at 221 (finding truck driver who had delivered a load and was on his way home at the time of the accident had not deviated from his normal work pattern or operational routine and was thus in the business of the trucking company). Accordingly, because Howard was operating his covered tractor “exclusively in [C & K’s] business as a ‘trucker’ “ when he was involved in the accident with Ruth Mathis, National’s policy provides coverage.

 

*3 [2] Finally, the district court properly found that Occidental’s non-trucking insurance policy excluded coverage for Howard’s accident with Ruth Mathis on February 2, 2010. Because Occidental’s policy expressly excludes coverage when the vehicle is being “[u]sed to carry property in any business or in route for such purpose” [R. 38–6 at 2], Occidental’s policy does not provide coverage here.

 

IV.

For the aforementioned reasons, we affirm the district court’s grant of summary judgment in favor of Occidental and its denial of summary judgment to National and C & K.

 

AFFIRMED.

 

FN1. In response to this court’s January 18, 2013 order, Occidental timely filed a motion for leave to amend its complaint in order to sufficiently allege the citizenships of all of the members of C & K. That motion is granted. After reading Occidental’s second amended complaint, we are satisfied that complete diversity of citizenship exists and conclude this court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332.

 

FN2. The parties dispute whether Howard left a job unfinished on Saturday, January 30, 2010, requiring his return to the C & K terminal the following Monday. For summary judgment purposes, the court will view the facts in the light most favorable to National and C & K and assume that Howard had completed his run.

 

FN3. Appellants raised this argument in their response to Occidental’s motion for summary judgment, but not in their brief supporting their motion for summary judgment. Nevertheless, because the two motions are intertwined, we address Appellants’ argument in both contexts.

 

FN4. The nature of C & K’s practice of obtaining corporate approval before allowing a trucker to return to duty after being involved in an accident is unclear. The evidence to which Appellants refer the court does not support Appellants’ contention that Howard was ineligible to receive dispatch orders on February 2, 2010. [See Appellants’ Br. at 25 (referring the court to R. 50–1 at 2).]

United States District Court,

E.D. New York.

Joseph A. FERRARA, Sr., Frank H. Finkel, Marc Herbst, Denise Richardson, Anthony D’Aquila, Thomas F. Corbett, Thomas Gesualdi, Louis Bisignano, Dominick Marrocco, and Anthony Pirozzi, as Trustees and Fiduciaries of the Local 282Welfare Trust Fund, the Local 282 Pension Trust Fund, the Local 282Annuity Trust Fund, the Local 282 Job Training Trust Fund, and the Local 282Vacation and Sick Leave Trust Fund, Plaintiffs,

v.

OAKFIELD LEASING INC., Coral Industries Inc., and Michael N. Babino, Jr., Defendants.

 

No. 11–CV–408 (ADS)(WDW).

March 23, 2013.

 

Cohen, Weiss and Simon LLP, by: Peter DeChiara, Esq., Zachary N. Leeds, Esq., of Counsel, New York, NY, for the Plaintiffs.

 

The Ziskin Law Firm, LLP, by: Richard B. Ziskin, Esq., of Counsel, Commack, NY, for the Defendant Oakfield Leasing, Inc.

 

Dandeneau & Lott, by: Gerald V. Dandeneau, Esq., of Counsel, Melville, NY, for the Defendants Coral Industries and Michael N. Babino, Jr.

 

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

*1 The Plaintiffs commenced this action on January 27, 2011, seeking to recover from the Defendants, jointly and severally, unpaid contributions owed to the Plaintiff Funds, pursuant to Sections 502(a)(3) and 515 of the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. §§ 1132(a)(3) and 1145.

 

On November 9, 2012, the Court granted the motion by the Plaintiffs for summary judgment against the three Defendants Oakfield Leasing, Inc. (“Oakfield”), Coral Industries Inc. (“Coral”) and Michael N. Babino Jr. (“Michael Jr.”) as to liability. However, the Plaintiffs’ request for damages was granted in part and denied in part. Specifically, the Court found that Oakfield, Coral, and Michael Jr. were jointly and severally liable for the delinquent contributions of Oakfield’s and Coral’s employees, and thus all three would be liable for contributions owed based on work performed by Oakfield’s and Coral’s drivers. However, the Plaintiffs did not provide a sufficient basis upon which to determine the delinquent contributions for Coral’s employees. For this reason, the Court stated that the Plaintiffs would be entitled to damages from the Defendants jointly and severally in the amount of $598,016.60 in connection with Oakfield, but that the Plaintiffs could renew their request for damages with regard to Coral on or before December 7, 2012.

 

To further elaborate on this point with regard to damages, the Court had several major concerns regarding the amounts sought by the Plaintiffs in connection with the alleged delinquent contributions of Coral’s employees. While as a matter of law, Coral and Oakfield may be treated as a single employer so that contributions may be owed for Coral’s employees, the Plaintiffs did not originally specify the appropriate method to calculate the delinquent benefits of a non-signatory under this particular set of circumstances. Estimations are often extrapolated from previous remittance reports sent to the Funds reflecting the number of hours worked by their employees in covered employment for which contributions are due for the period at issue, as they were in the present case for Oakfield. However, there are no remittance reports for Coral, as they are a non-signatory. Further, if there are no remittance reports, then under the CBA, the employer is deemed to have the number of employees that the Union reports in writing that the employer is employing, with each employee deemed to have worked 40 hours per week for the entire unreported period. (Cody Decl., ¶ 23.) Yet, it did not appear that the Plaintiffs followed this formula in calculating Coral’s delinquent contributions, nor did they provide the reason for failing to do so. Moreover, it was also unclear at the time the Court considered the motion for summary judgment whether the invoices sent from Coral to third parties for trucking services performed by Coral employees would necessarily qualify as “covered” employment for which contributions would be owed.

 

*2 In addition, in the Court’s November 9, 2012 Order, the Plaintiffs were directed to file a proposed order for attorney’s fees, reflecting the hourly rates set by the Court, on or before December 7, 2012. In particular, the Plaintiffs were ordered to recalculate their proposed rates as follows: $350 per hour for partners; $275 per hour for senior associates; $225 per hour for junior associates; and $90 per hour for paralegals and law clerks.

 

The Court will now assess whether the Plaintiffs have been able to provide legal and factual support for the contributions and other damages sought in connection with the nonsignatory Coral.

 

The Plaintiffs continue to maintain that they should be entitled to damages stemming from the hours worked by Coral employees in the same amount as they requested in their initial summary judgment motion. However, unlike before, they now explain that a plaintiff need only show a “stable foundation for the reasonable estimate” of damages, and that any burden of uncertainty as to the amount should fall on the wrongdoer. See Tractebel Energy Marketing, I nc. v. A EP Power Marketing, Inc., 487 F.3d 89 (2d Cir.2007). Accordingly, they argue that because the Court has previously found that the Defendants are liable for unpaid contributions for the hours worked by Coral’s drivers, they must owe some amount of damages in order to avoid allowing them to profit from their wrongdoing.

 

As set forth above, generally, the Trustees are able to determine the extent of unpaid contributions owed by an employer by auditing the employer’s books and records. The Plaintiffs correctly point out that it was Coral’s refusal to permit an audit that prevented the Trustees from determining with certainty the amount of unpaid contributions owed for Coral’s employees. Further, under normal circumstances, if an employer refuses to submit to an audit, the Trustees may estimate damages under the estimation procedures provided in the Trust Agreement, typically by extrapolating from remittance reports submitted by the employer. However, once again, the Plaintiffs correctly point out that it was the Defendants’ wrongful failure to submit remittance reports for Coral that prevented the Trustees from performing an estimated audit. This is the cause of any uncertainty as to damages. The Trustees now assert that the invoices that they relied upon provide a sufficient stable foundation for a reasonable estimate of damages. In addition, the Trustees have adequately explained why the invoices reflect work that would be deemed “covered” under the CBA and why they were unable to calculate the contributions based on the number of employees.

 

Accordingly, the Court agrees with the Plaintiffs and finds that they have now provided a sufficient legal and factual basis for the damages they seek from Coral. Specifically, the invoices that the Trustees’ auditors used to calculate the amount of unpaid contributions owed for the Coral drivers specified certain relevant information for each date of work, including the number of hours worked by the driver and the truck that each driver drove. The Defendants never challenged the authenticity or accuracy of the invoices and never challenged the calculation of the amount of unpaid contributions due for the Coral drivers. They challenged only whether they were liable at all. Therefore, the Court now awards the Plaintiffs the unpaid contributions for the hours worked by Coral drivers, in the amount requested in the Plaintiffs’ summary judgment motion, namely $875,729.20.

 

*3 The Plaintiffs have submitted a proposed order to the Court that awards the correct delinquent contributions for both companies, as well as the appropriate amount of attorney’s fees and costs as set forth in the Court’s previous Order. However, the Plaintiffs have failed to explain how they have arrived at their final proposed damages calculation, and the Court has two concerns that must be addressed.

 

First, the Plaintiffs originally calculated their interest through December 15, 2011, but have now calculated their interest through December 7, 2012. Thus, the Court understands that the originally submitted interest rates have been modified to include the additional per diem interest for the subsequent 358 days. For example, for the delinquent contributions of Oakfield, the interest as originally submitted was $78,600.14, with a per diem interest rate of $166.07. When this per diem interest rate is multiplied by 358 days, it is correct to add an additional amount of $59,453.06 to the calculated interest, for a total interest amount of $138,053.20.

 

However, the interest calculations for Coral’s delinquent contributions for the time period of November 1, 2005 through June 30, 2006, Audit # 12–0882, do not appear to the Court to be accurate. In the Court’s view, the originally submitted interest amount of $99,347.47 would be subject to an additional amount of $17,506.20=-the per diem interest of $48.90 per day for 358 days—for a total interest award of $116,853.67. Yet, the Plaintiffs have requested an interest award of $117,153.67, and have not explained this discrepancy.

 

Second, the Plaintiffs have requested per diem interest rates from December 7, 2012 through the entry of judgment as follows: $332 .14 for Audit # 10–0801–E1; $97.80 for Audit # 12–0882; and $489.06 for Audit # 12–874. However, the declaration submitted by the Plaintiffs with their summary judgment motion requested per diem interest rates that were precisely half of the above amounts: $166.07 for Audit # 10–0801–E1; $48.90 for Audit # 12–0882; and $244.53 for Audit # 12–874. The Plaintiffs have failed to provide an explanation as to why they are now seeking double the amount of per diem interest.

 

Therefore, the Plaintiffs are directed to inform the Court by April 26, 2013 as to why there is a discrepancy in their requested interest amount for Audit # 12–0882, as well as why they requested a doubled per diem interest rate.

 

SO ORDERED.