United States District Court,

S.D. Mississippi,

Jackson Division.

Clorette ANCAR and Leonard Joseph Ancar, Jr., Plaintiffs

v.

Leroy BROWN, Jr. and TNE Trucking, Inc, Defendants.

 

Civil Action No. 3:11–cv–595–DPJ–FKB.

Oct. 2, 2013.

 

Christie Evans Ogden, Daryl Matthew Newman, Donnie Herbert Evans, Quentin Andrew Daniels, Don H. Evans, PLLC, Jackson, MS, for Plaintiff.

 

David C. Dunbar, Benny McCalip May, David C. Dunbar, Dunbarmonroe, P.A., Ridgeland, MS, for Defendants.

 

ORDER

DANIEL P. JORDAN III, District Judge.

*1 This negligence action is before the Court on Defendants’ Motion for Partial Summary Judgment [85]. The Court, having considered the memoranda and submissions of the parties, finds that Defendants’ motion should be denied in part and granted in part.

 

I. Facts and Procedural History

This case arises from a February 14, 2011, traffic accident on Interstate 20. The Plaintiffs, Clorette and Leonard Joseph Ancar, were traveling westbound on I–20. Defendant Leroy Brown was driving a tractor-trailer eastbound and veered off the road. He was driving under the operating authority of Defendant TNE Trucking, Inc. It is disputed whether Mr. Brown’s truck traveled all the way across the median into the westbound lanes or stopped in the median when it struck a barrier there. Upon seeing Mr. Brown veer off the road, Mrs. Ancar, who was driving, swerved and struck the barrier in the median where the Ancars’ car then stopped. The two vehicles never collided. According to deposition testimony of the responding officer, after the accident, Mr. Brown told the officer that he had fallen asleep before running off the road.

 

Plaintiffs allege that they both suffered injuries from the accident. Their amended complaint alleges claims of negligence, gross negligence, and recklessness against Defendant Brown and against Defendant TNE Trucking on a theory of vicarious liability. Plaintiffs seek compensatory and punitive damages. Defendants filed the instant motion for partial summary judgment on Plaintiffs’ claims for gross negligence, recklessness, and punitive damages against both defendants.

 

II. Standard of Review

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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).

 

The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact .” Id. at 323. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.’ “ Id. at 324 (citation omitted). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when … both parties have submitted evidence of contradictory facts.” Little, at 1075. When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.”   Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

 

III. Analysis

 

A. Gross Negligence, Recklessness, and Punitive Damages Against Defendant Brown

 

*2 Defendants seek summary judgment on Plaintiffs’ claims alleging gross negligence and recklessness and their request for punitive damages, arguing that the alleged conduct falls short of what is required for such an award. “Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” Miss.Code Ann. § 11–1–65(1)(a).

 

“[A] plaintiff can recover punitive damages only if there is a demonstrated willful or malicious wrong or if there is gross, reckless disregard for the rights of others.” Id. Put another way, “[p]unitive damages may be recovered not only for willful and intentional wrong, but for such gross and reckless negligence as is, in the eyes of the law, equivalent to willful wrong.”   Choctaw Maid Farms, Inc. v. Hailey, 822 So.2d 911, 923 (Miss.2002) (citation omitted). “[T]here is no right to an award of punitive damages and such damages are to be awarded only in extreme cases.” Doe ex rel. Doe v. Salvation Army, 835 So.2d 76, 79 (Miss.2003) (citations and quotations omitted). This is especially true in the automobile context where “the Mississippi Supreme Court has been ‘… extremely reticent to permit punitive damages….’ “ Carter v. Steve Cagle Trucking Co., No. 3:08–cv–270–HTW–LRA, 2010 WL 1141147, at *2 (S.D.Miss. Mar.22, 2010) (quoting Walker v. Smitty’s Supply, Inc., No. 5:06cv30–DCB–JMR, 2008 WL 2487793, at *6 (S.D.Miss. May 8, 2008)).

 

Merely falling asleep at the wheel is generally not sufficient to warrant punitive damages. See, e.g., Bachrach v. Covenant Transp. Inc., No. 10–00315–REJ, 2011 WL 1211767, at * 1–2 (D.Ariz. Mar.31, 2011) (rejecting punitive damages where driver fell asleep); Batts v. Crete Carrier Corp., No. 1:09–CV–328–TWT, 2009 WL 6842545, at *2 (N.D.Ga. Dec.14, 2009) (“[J]ust falling asleep at the wheel does not support an award of punitive damages.”) (citing Bartja v. Nat.’l Union Fire Ins. Co. of Pittsburgh, Pa., 218 Ga.App. 815, 463 S.E.2d 358 (Ga.Ct.App.1995) (affirming summary judgment in defendant tractor-trailer driver’s favor on punitive damages and holding that “despite evidence the defendant had fallen asleep, there was no evidence of the requisite culpability required for punitive damages”) (citation and quotation omitted)); Turner v. Werner Enters., Inc., 442 F.Supp.2d 384, 386–87 (E.D.Ky.2006) (holding that plaintiff was not entitled to punitive damages against driver who fell asleep); Burke v. Maassen, 904 F.2d 178, 183 (3d Cir.1990) (same).

 

But some courts have allowed punitive damages against drivers who fell asleep with other aggravating circumstances. See, e.g., Came v. Micou, Civ. No. 04–1207, 2005 WL 1500978, at *5 (M.D. Pa. June 23, 2005) (denying summary judgment on punitive damages against commercial driver who fell asleep after allegedly violating six provisions of the Federal Motor Carrier Act including those requiring rest stops); Briner v. Hyslop, 337 N.W.2d 858 (Iowa 1983) (finding punitive damages were warranted where intoxicated driver fell asleep behind the wheel); see also Keifer v. Reinhart Foodservice, LLC, No. 09–1558, 2013 WL 2558004, at *22 (W.D.Pa. June 11, 2013) (denying punitive damages against defendant driver for lack of evidence showing “subjective appreciation of the risk of harm caused by his actions”).

 

*3 There is no suggestion here that Brown was intoxicated or otherwise driving recklessly as in other cases. But Plaintiffs have argued that Brown has a history of driving past the allowable hours and has a similar prior accident that gave him a subjective appreciation of the dangers associated with driving while fatigued. Whether this is enough to instruct the jury on punitive damages remains to be seen and could depend in part on certain evidentiary issues regarding the driving history. So while Plaintiffs face a heavy burden that they may ultimately fail to satisfy, the Court concludes that the issue should be carried to trial and decided after the liability phase concludes.

 

B. Punitive Damages Against Defendant TNE Trucking

Plaintiffs’ response fails to address Defendants’ argument for summary judgment on the claim for punitive damages against TNE Trucking, which otherwise appears meritorious. See Dawson v. Burnette, 650 F.Supp.2d 583, 586 n. 1 (S.D.Miss.2009) (finding that defendant “cannot be held vicariously liable for punitive damages on account of the conduct of its employee”) (citation omitted). They have therefore abandoned this claim. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n. 1 (5th Cir.2006) (“[Plaintiff’s] failure to pursue this claim beyond [the] complaint constituted abandonment.”). Defendants’ motion is granted with respect to the claims for punitive damages against TNE Trucking.

 

IV. Conclusion

The Court has considered all the arguments. Those not addressed would not have changed the result. For the foregoing reasons, Defendants’ Motion for Partial Summary Judgment is denied with respect to the claim for punitive damages against Brown and granted with respect to the claim for punitive damages against TNE Trucking.

 

SO ORDERED AND ADJUDGED.

United States District Court,

D. Nevada.

Melissa Ann WRIGHT, court appointed guardian of Brogan Zane Wright; Karen Reiger; and Mike Reiger, Plaintiffs,

v.

WATKINS AND SHEPARD TRUCKING, INC., a Montana corporation; Gregory Andrew Britt, an individual; DOES 1 through 5 and ROES 1 through 5, Defendants.

 

No. 2:11–CV–01575–LRH–GWF.

Oct. 10, 2013.

 

ORDER

LARRY R. HICKS, District Judge.

*1 Before the Court is Defendants Watkins and Shepard Trucking, Inc. (“Watkins & Shepard”) and Gregory Andrew Britt’s (“Britt”) Motion for Reconsideration, or in the alternative, Motion to Certify Question of Law to the Nevada Supreme Court. Doc. # 72.FN1 Also before the Court is Defendants’ Ex Parte Motion to Shorten Time for Briefing and Decision on the aforementioned Motion. Doc. # 73.

 

FN1. Refers to the Court’s docket number.

 

I. Factual Background

This is a personal injury action arising out of a tractor trailer truck accident on June 5, 2011, in which Plaintiff pedestrians sustained severe injuries. Plaintiffs allege claims of negligence, negligent infliction of emotional distress, and negligent hiring and supervision against employee/driver Britt and employer Watkins & Shepard. On December 10, 2012, Defendants filed a Motion for Partial Summary Judgment (Doc. # 38), seeking dismissal of Plaintiffs’ claims against Watkins & Shepard for negligent hiring and supervision. On May 16, 2013, the Court reopened discovery in response to an anonymous letter Plaintiffs received regarding Watkins & Shepard’s hiring practices. See Doc. # 59. On that basis, the Court denied Defendants’ Partial Motion for Summary Judgment without prejudice. See Doc. # 69. On October 4, 2013, Defendants filed the present Motions before the Court.

 

II. Legal Standard

Pursuant to Federal Rule of Civil Procedure 54(b), the Court has authority to reconsider, modify, alter, or revoke any order adjudicating fewer than all the claims in an action at any time before the entry of final judgment. See United States Aviation Underwriters, Inc. v. WesAir, LLC, No. 2:08–CV–00891–PMP–LRL, 2010 U.S. Dist. LEXIS 35648, at *4 (D. Nev. April 12, 2010); see also United States v. Martin, 226 F.3d 1042, 1048–49 (9th Cir.2000). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Aviation Underwriters, 2010 U.S. Dist. LEXIS, at *4 (quoting Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993)) (internal quotation marks omitted). However, “[a] motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled.” Id. (quoting In re AgriBioTech, Inc., 319 B.R. 207, 209 (D.Nev.2004)) (internal quotation marks omitted) (emphasis added).

 

II. Discussion

The Court finds that reconsideration of its September 13, 2013 Order (Doc. # 69) is not warranted. The Court’s Order was not clearly erroneous under controlling Nevada law, nor has there been an intervening change of law such that the Court would reach a different conclusion. To the contrary, the Court’s opinion as to Plaintiffs’ cause of action against Watkins & Shepard for negligent hiring and supervision appears to be exactly in line with what Defendants refer to as the “majority” position in Nevada and the rest of the country for that matter. Moreover, Defendants have presented no new evidence since the September 13, 2013 Order was issued. The Court reopened discovery on the very issue of negligent hiring and supervision in order to give Plaintiffs an opportunity to produce evidence relevant to punitive damages on that claim. See Doc. # 59. Should the evidence reveal that Plaintiffs’ claim of negligent hiring and supervision is without merit, the Court invites Defendants to resubmit their Motion for Partial Summary Judgment on this claim. Until that time, the Court finds that no other changed circumstances would render this issue appropriate for reconsideration and no manifest injustice would otherwise fall upon Defendants.

 

*2 To the extent the Court’s Order was unclear as to Plaintiffs’ claim for negligent hiring and supervision as it relates to punitive damages or “predicted” that the Nevada Supreme Court would not adopt the “majority” position, the Court modifies its September 13, 2013 Order as set forth herein. The Court agrees with Defendants and the apparent “majority” that Plaintiffs may not maintain a direct cause of action for negligent hiring and supervision where it would impose no additional liability on Defendants because Watkins & Shepard has already admitted vicarious liability. Indeed, in those circumstances, Plaintiffs claim for negligent hiring and supervision would merely be an alternative theory on which to recover against Watkins & Shepard for Britt’s alleged negligence, and thus entirely superfluous. As such, the Court finds it unnecessary to expound further on this general principle.

 

However, this is not a case in which the “majority” rule can be mechanically applied to dispose of Plaintiffs’ claim for negligent hiring and supervision. In this regard, Defendants miss the mark entirely. Here, there is not “only one element of damages that Plaintiffs may recover” for which “Watkins & Shepard has admitted all the elements necessary to establish its complete liability.” See Doc. # 72, p. 12. Nor does Plaintiffs’ “direct negligence claim therefore [serve] no purpose” as Defendants urge. See Doc. # 72, p. 15. Rather, Plaintiffs’ direct negligence claim against Watkins & Shepard for negligent hiring and supervision stands to impose liability beyond that which is available on the underlying derivative negligence claim. Thus, it merits full consideration separate and apart from Watkins & Shepard’s vicarious liability for Britt’s negligence to determine whether Plaintiffs’ request for punitive damages is viable.

 

Defendants cite to Olivarez v. Rebel Oil Co., Inc., Case No. A430209 (Nev. Dec. 30, 2002), in the Eighth Judicial District of Nevada for the proposition that the trend in Nevada appears to be in line with the “majority” approach. Doc. # 72, Ex. 1. The Court agrees. However, Defendants neglected to reference the portion of that order which is directly relevant to this case. Specifically, the court stated that “the exception to the general rule where a plaintiff has a claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee is not applicable, because the Court has dismissed Plaintiffs’ punitive damages claim pursuant to NRS 41.085(5).” Id .FN2 Although inapplicable on other grounds, the Nevada court acknowledged precisely the exception on which this Court based its denial of Defendants’ Motion for Partial Summary Judgment. Similarly, Defendants cite Adele v. Dunn, No. 2:12–CV–00597–LDG–PAL, 2013 U.S. Dist. LEXIS 44602 (D.Nev. March 27, 2013), in which Judge George predicted that Nevada would adopt the “majority” position. Again, however, this case is distinguishable because it dealt with a situation in which “the direct claim of negligent entrustment, or negligent training, serve[d] only as [an] alternative theor[y] by which to impute liability to an employer for the acts of the employee.” Id., at *5. Here, Plaintiffs’ direct claim against Watkins & Shepard does not rest solely upon Britt’s alleged negligent conduct. Rather, Watkins & Shepard faces additional liability beyond that imputed to it by virtue of Britt’s negligence. Perez v. Kriegh, Case No. A516240 (Nev. Mar. 6, 2008), is similarly inapposite as punitive damages were not at issue . FN3

 

FN2. Nevada Revised Statute 41.085(5) provides, in relevant part, “[t]he damages recoverable by the personal representatives of a decedent on behalf of the decedent’s estate include … [a]ny penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived …”

 

FN3. Defendants reproduce Perez at Doc. # 72, Ex. 1.

 

*3 To ensure that Defendants are entirely clear on the Court’s agreement with the weight of authority on this issue, the Court has reproduced the relevant section of Cruz v. Durbin, on which Defendants rely:

 

The purpose of the McHaffie rule is to prevent unnecessary litigation over claims that have become redundant due to a factual admission by one party and to avoid the admission of irrelevant, prejudicial material. The purpose of the rule is not furthered by dismissing an allegedly redundant claim … where liability on the allegedly redundant claim would support an additional measure of damages that liability on the other claim alone would not support. The McHaffie court itself noted that it was not instituting an absolute rule, and that a case could present itself in the future where both types of claim could proceed:

 

[I]t may be possible that an employer … may be held liable on a theory of negligence that does not derive from and is not dependent on the negligence of an … employee. In addition, it is also possible that an employer … may be liable for punitive damages which would not be assessed against the employee.

 

No. 2:11–CV–00342–RCJ–LRL, 2011 U.S. Dist. LEXIS 51057, at *9–10 (D.Nev. May 11, 2011) (citing McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo.1995)) (internal citations omitted). The court went on to say that “[i]f Plaintiff amended the AC to request punitive damages, …, the outcome would be different, because an employer’s fault in hiring and training is different from an employee’s fault in driving.” Id., at * 10–11 (citing NRS 42.005; Wyeth v. Rowatt, 244 P.3d 765, 783 (Nev.2010)).

 

Defendants also cite a persuasive law review article on the subject that explicitly carves out an exception to the “majority” rule for viable claims of punitive damages. See Doc. # 72, at 6 (citing Richard A. Mincer, The Viability of Direct Negligence Claims Against Motor Carriers in the Face of an Admission of Respondeat Superior, 10 Wyo. L.Rev. 229 (2010) (hereinafter “The Viability of Direct Negligence Claims ”)). While Mincer warns that the punitive damages exception is more theoretical than practical, he concedes that “even the theoretical deserves a court’s attention to determine whether or not the plaintiff’s punitive damages claim is viable or should also be dismissed.” Id. at 263. Indeed, it may be rare that an employer’s actions in hiring, training, supervising, or retaining an employee are egregious enough to warrant punitive damages. Nevertheless, the Court is simply not prepared to foreclose the possibility that Plaintiffs’ claim has merit without the appropriate factual analysis. Accordingly, Defendants’ Motion to Reconsider is denied.

 

As previously mentioned in its September 13, 2013 Order, the Court is cognizant of Defendants’ concern that the evidence used to establish direct liability for negligent hiring and supervision, namely an employee’s prior conduct amounting to negligence, may be misused by the trier of fact to establish the employee’s negligence on the occasion in question. Indeed, Judge Reed acknowledged precisely this problem in Grimes v. Combined Transp., Inc., Case No. 3:05–CV–00461–ECR–RAM (D.Nev. Oct. 3, 2007), Doc. # 92, p. 7–11. Nevertheless, Grimes, like every other case Defendants cite, is distinguishable on the grounds that the plaintiffs’ direct liability claim added nothing to the case in terms of recovery and was thus unnecessary. Id., p. 11. Should Plaintiffs’ present sufficient evidence to pursue an award of punitive damages against Watkins & Shepard for negligent hiring and supervision, the Court is confident that it would be capable of managing the complex evidentiary issues presented. In fact, in The Viability of Direct Negligence Claims, Mincer suggests that “[where] the Plaintiff presents facts that support a claim for punitive damages …, then the case should be bifurcated to ensure the defendant receives a fair trial on the underlying negligence claim against the driver. If—and only if—the driver is found negligent should the trial proceed to the second phase where the plaintiff is given a fair opportunity to present the claim for punitive damages.” The Viability of Direct Negligence Claims, at 263–64. The Court will assuredly give heed to Mincer’s suggestion in the event the parties reach trial on the issue of punitive damages.

 

*4 Finally, as the Court hopes to have made abundantly clear, the question this Court addressed in its September 13, 2013 Order (Doc. # 69) is not presently before the Nevada Supreme Court. Punitive damages are simply not at issue in Plat v. Eighth Judicial District Court.FN4 Accordingly, the Court denies Defendants’ Motion to Certify Question of Law to the Nevada Supreme Court. The Court also denies Defendants’ request to present this matter to the Court in oral argument. Lastly, the Court denies as moot Defendants’ Ex Parte Motion to Shorten Time for Briefing and Decision on Motion to Reconsider or Certify Question of Law to the Nevada Supreme Court.

 

FN4. Defendants reproduce the Petition for Writ of Mandamus in Plat at Doc. # 72, Ex. 7.

 

IT IS THEREFORE ORDERED that Defendants’ Motion to Reconsider or Certify Question of Law to the Nevada Supreme Court (Doc. # 72) is DENIED.

 

IT IS FURTHER ORDERED that Defendants’ Ex Parte Motion to Shorten Time for Briefing and Decision on Motion to Reconsider or Certify Question of Law to the Nevada Supreme Court (Doc. # 73) is DENIED.

 

IT IS SO ORDERED.