United States District Court, W.D. Louisiana,

Shreveport Division.

Lisa Lea BROSSETTE, et al.

v.

SWIFT TRANSPORTATION, CO., INC., et al.

Civil Action No. 07-0888.

Oct. 30, 2008.

MEMORANDUM RULING

S. MAURICE HICKS, JR., District Judge.

Before the is Defendants’ General Motion in Limine (Record Document 101). For the reasons detailed below, the motion is DENIED in part. Specifically, motions numbered one through 6 are DENIED, and the Court defers ruling on the motion numbered 7.

The numbered subheadings below list items, referred to below as individual “motions,” which Defendants seek to prevent Plaintiffs from introducing or referring to at trial. The numbering corresponds to Defendants’ numbering in Record Document 101.

1. Any evidence of discovery responses made by Defendants

Defendants motion numbered one is DENIED as vague and speculative. Relying on Rules 401, 402, and 403, and considerations of judicial economy, Defendants seek generally to preclude Plaintiffs from offering evidence of any of Defendants’ discovery responses. The Court will not categorically exclude Defendants’ discovery responses on the basis of so “general” a motion. Defendants may reurge their objections with specificity at trial and by filing any specific objections to Plaintiffs’ final trial exhibits with the by Court November 5, 2008.

2. Any evidence, reference, or argument regarding Defendants’ discovery objections, whether Defendants objected to discovery, whether Defendants claimed privilege to any information or document, and/or whether the Court denied or overruled any claim of privilege

Defendants motion numbered two is DENIED.Relying on Rules 401, 402, 403, 501, and Federal Rule of Civil Procedure 37, Defendants seek generally to exclude any suggestion that Defendants have hidden or destroyed evidence by preventing the Plaintiffs from making any mention whatsoever of Defendants’ discovery objections. See Record Document 110, ¶ 2.

The Plaintiffs’ Opposition brief and Defendants’ Reply brief suggest that Defendants’ chief goal in filing this motion is excluding evidence and preventing mention of the fact that certain data regarding the position of the truck driven by Defendant David Hendricks was destroyed or lost by Swift Transportation. See Record Document 110, ¶ 2; Record Document 106 ¶ 2. The truck was equipped with a global position satellite and Qual-Com communication device (“Qual-Com/GPS”) that recorded information regarding the truck’s positioning. The position of the truck, and whether it occupied the left or right lane of travel, is the central issue in this case. It appears that Swift Transportation lost or destroyed the Qual-Com/GPS devices. See Record Document 110, ¶ 2; Record Document 106 ¶ 2. Defendants argue, among other things, that Plaintiffs cannot support a claim that Qual-Com data would assist in determining whether the truck made its right-hand turn from the left or the right lane of travel. See Record Document 110, ¶ 2. Defendants further argue that because Plaintiffs failed to file a motion for an order compelling discovery of the device, they have waived their remedy and can no longer complain about “the supposedly deficient responses to discovery.”Record Document 101, ¶ 2.

Defendants cite no authority in support of this last assertion. As such, and because the missing evidence in question appears to be highly relevant to the instant case, Defendants motion is DENIED. However, the Court is aware and Plaintiffs are cautioned of the fact that substantial, unfair prejudice could result to Defendants if they are surprised on the eve of trial or at trial by a mention of the lost/destroyed evidence described above. Accordingly, before mentioning or introducing evidence regarding Defendants’ discovery responses, Plaintiffs shall, out of the presence and hearing of all prospective jurors and the jurors ultimately selected in this case, notify the Court so that Defendants have opportunity to object. In addition, Defendants may reurge their objections with specificity at trial and by filing any objections to Plaintiffs’ final trial exhibits with the by Court November 5, 2008.

3. Any evidence regarding the determination that Mr. Hendricks’ prior accidents and the accident made the subject of this lawsuit were “preventable accidents” and any mention of Swift being in regulatory compliance in making such determinations

Defendants’ motion numbered three is DENIED.Defendants represent that Swift Transportation internally classified the collision at issue in this case as a “ ‘preventable accident’ pursuant to a DOT [Department of Transportation] regulation.”See Record Document 110, ¶ 3. Defendants quote the definition of “preventable” promulgated by the National Safety Counsel (NSC) and the definition of a “preventable accident” in the Federal Motor Carrier Safety Regulations, and argue that comparing these definitions with Louisiana’s duty-risk negligence analysis is like comparing “apples to oranges,”  See id.;Record Document 101, ¶ 3. Citing an unpublished district court case from the Northern District of Illinois, Defendants argue that presenting evidence regarding

Swift’s internal determination in accordance with DOT regulations that an accident was ‘preventable’ will not assist the trier of fact … [and] presenting evidence of these various standards will likely confuse and mislead the jury … regarding the different standards and the significance of the preventability finding, diverting attention away from the real issue of negligence under Louisiana law.

and thereby prejudicing Defendants. See id.

Defendants, however, fail to specify precisely which (if any) of the two regulations Swift applied in making its preventability determination. Defendants cite deposition testimony from Plaintiff’s safety expert regarding the differences between the NSC’s definition of preventability and the definition of preventability in a court of law. See Record Document 110, ¶ 3 (citing Bonner Dep.). However, the NSC’s website indicates that it is a non-profit organization rather than an arm of the Department of Transportation. See http://www.nsc.org/resources/issues/radon/index.aspx (“The National Safety Council, a nonprofit organization …”). Swift Transportation claims it applied an unspecified DOT regulation to assess the preventability of the collision at issue in this case. See Record Document 110, ¶ 3. As such, it appears that the NSC’s definition of “preventable” is not at all relevant to this discussion. For the same reason, Villaba, the case relied upon by Defendants is inapposite. See  Villaba v. Consol. Freightways Corp., 2000 WL 1154073, * 6 (N.D.Ill. Aug.14, 2000) (plaintiff could not offer evidence that an employer deemed a collision a “preventable accident” where the defendant “utilize[d] the National Safety Council Rules to determine accident preventability”).

For the purposes of this ruling, the Court assumes that the DOT regulation Swift applied to assess preventability in this case is the Federal Motor Carrier Safety Regulation cited in its initial brief in support of this motion in limine (Record Document 101, ¶ 3). That regulation defines a preventable accident as “an accident (1) that involved a commercial motor vehicle; and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver.”49 C.F.R. § 385.3. The meaning of “preventable” embodied in that regulation is no different from the meaning of the term in ordinary usage.

Accordingly, no confusion or prejudice would result from the introduction of the contested evidence. On the other hand, it appears that prejudice would result if the evidence were excluded, as Plaintiffs represent, and Defendants do not deny, that three of the Defendants’ experts state explicitly in their depositions (and may testify at trial) that Mr. Brosette could have prevented the collision. See Record Document 106, ¶ 3. Evidence that Swift classified the accident as “preventable” by Defendant Hendricks will bolster Plaintiff’s ability to oppose such testimony.

4. Any evidence, reference, or argument relative to steps taken by Swift after the accident made the subject of this [lawsuit] including, without limitation, the termination of Mr. Hendricks

Defendants’ motion numbered four is DENIED.Plaintiffs have indicated that they do not intend to offer evidence regarding the termination of Mr. Hendricks unless Defendants open the door by offering other evidence that requires the admission of this evidence in response. See Record Document 106, ¶ 4, As such, to the extent that this motion seeks to exclude only evidence of the termination of Mr. Hendricks, it is DENIED as moot. To the extent that it seeks to exclude other evidence under Rule 407, it is DENIED as vague and speculative. Defendants may reurge their objections with specificity at trial and by filing any objections to Plaintiffs’ final trial exhibits with the by Court November 5, 2008.

5. Certain photographs of Mrs. Brosette and the Brosette family and undated notes from Mr. Brosette

Defendants’ motion numbered five is DENIED.Federal and state courts routinely admit photographs of the decedent in wrongful death suits. See, e.g.,  Bridges v. Enterprise Prods. Co., Inc., 2008 WL 80401, at(S.D. Miss. Jan 4., 2008) (holding that plaintiff could introduce photographs of, and testimony about, the decedent during her life; Pregeant v. Pan Am. World Airways, Inc., 762 F.2d 1245, 1249 n. 3 (5th Cir.1985) (upholding trial court’s admission of numerous family photographs showing decedent with family members); Cockerham v. LaSalle Nursing Home, Inc., 2006-10 (La.App. 3 Cir. 5/3/06); 930 So.2d 239, 244 (affirming lower court’s admission of family photos). The photographs are probative of the love and affection shared among the Deceased and other members of the Brosette family. They are relevant and admissible regardless of whether the periods of time they depict occurred before or after the Brosette’s martial relations became strained. Defendants object to some photographs in which they claim Mr. Brosette is not pictured. However, Defendants failed to present the Court with copies of the photographs sought to be introduced, and as a result have failed to meet their burden of demonstrating that this evidence is irrelevant and therefore excludable. Defendants also object because a date is not printed on each photograph. Plaintiffs represent that the Brosette family will authenticate the can authenticate the photographs, including their approximate dates and the activities they depict. Defendants further object because some of the pages of photographs produced to them by Plaintiffs contained text. This objection is mooted by Plaintiff’s clarification that they do not intend to offer these photographs with the accompany text. See Record Document 106, ¶ 6. Finally, Defendants object on the basis that the photographs are too numerous and argue that Plaintiffs should be allowed to introduce only a limited number of photographs. The deadline for submitting exhibits has not yet expired, and Plaintiffs have not yet submitted the photos in question exhibits to the Court. Accordingly, any ruling that this photographic evidence is cumulative would be premature. Defendants may reurge their objections with specificity at trial and by filing any objections to Plaintiffs’ final trial exhibits with the by Court November 5, 2008.

6. Any reference regarding whether Defendants do or do not have a corporate representative at trial and whether Mr. Hendricks appears at trial

Defendants’ motion numbered 6 is DENIED.Defendants have cited no authority that would prevent Plaintiffs from referring to the absence of Mr. Hendricks or any of Defendant Swift’s employees.

7. Any evidence, statement, or reference to the fact that Hendricks received a citation in connection with the accident

The Court defers ruling on Defendants’ motion numbered 7.

An order consistent with the terms of the instant Memorandum Ruling shall issue herewith.

United States District Court, W.D. Wisconsin.

LAND O’LAKES, INC., Plaintiff,

v.

JOSLIN TRUCKING, INC.; Blue Thunder Truck Brokerage, Inc.; Great West Casualty Company; and those certain underwriters at Lloyd’s, London who subscribe to Certificate Number IRPI-CL-06-025, Defendants.

In defendant’s motion to dismiss, defendants Those Certain Underwriters at Lloyd’s, London who subscribe to Certificate number IRPI-CL-06-025 points out that they were incorrectly identified as Lloyd’s Illinois, Inc. in plaintiff’s original complaint. The caption has been corrected accordingly.

Oct. 27, 2008.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

This is a civil action brought by plaintiff Land O’Lakes against defendants Joslin Trucking, Inc., and Blue Thunder Truck Brokerage, Inc., for the loss of a shipment of butter while in interstate commerce pursuant to 49 U.S.C. § 14706. Plaintiff asserts separate claims against Great West Casualty Company and Those Certain Underwriters at Lloyd’s, London who subscribe to Certificate Number IRPI-CL-06-025 for the insurance coverage that plaintiffs expect to result from the loss.

This case is currently before the court on two separate motions by the defendant insurers. Defendant Great West has moved to stay proceedings as to liability and bifurcate the proceedings in order to determine whether it is required to indemnify defendant Joslin Trucking. Because staying and bifurcating proceedings would not be in the interest of the parties or eliminate unnecessary litigation, I will deny defendant Great West’s motion. Next, defendants Those Certain Underwriters have brought a motion to dismiss plaintiff’s claim pursuant to Fed.R.Civ.P. 12 contending that under Wisconsin law a direct action cannot be maintained against them by plaintiff and that they are not proper parties to the lawsuit. Although that motion will be denied, plaintiff will be ordered to show cause why its claims against defendants Those Certain Underwriters and Great West should not be dismissed for failure to state a claim under the Carmack Amendment.

Plaintiff alleges the following facts in its complaint.

ALLEGATIONS OF FACT

Plaintiff Land O’ Lakes owns and operates a butter factory in Madison, Wisconsin known as Madison Dairy Company.

Defendants Those Certain Underwriters at Lloyd’s, London who subscribe to Certificate Number IRPI-CL-06-025 insure defendant Blue Thunder Truck Brokerage, Inc., for losses to cargo it contracts to carry.

Defendant Great West Casualty Company insures defendant Joslin Trucking for losses to cargo it contracts to carry.

On or about October 4, 2007, plaintiff entered into a contract with defendant Blue Thunder to transport a load of butter from Wisconsin to New Jersey. Blue Thunder then brokered the shipment to Joslin Trucking.

Defendant Joslin Trucking took possession of the butter on October 12, 2007 from High Track, LLC, in McFarland, Wisconsin. The butter was in good condition when it was loaded into Joslin Trucking’s truck and had a total value of $65,425.60. The driver for Joslin Trucking executed a bill of lading in exchange for the butter with High Track. The load of butter was not delivered to New Jersey and was not returned to plaintiff.

On October 18, 2007, Joslin Trucking reported the truck and trailer carrying the butter stolen. It also reported the matter to its insurer, defendant Great West.

OPINION

A. Defendant Great West’s Motion To Stay and Bifurcate

Defendant Great West Casualty Company insures Joslin Trucking for any liability arising from lost cargo it contracts to transport. It has filed a motion to stay liability proceedings on plaintiff’s claim for damages arising from the alleged loss of its shipment of butter. According to defendant Great West, a stay is necessary to determine whether it will be required to indemnify defendant Joslin Trucking for any liability it may incur for the loss of the load of butter. The insurance contract between defendants Great West and Joslin Trucking provides coverage for lost cargo that Joslin Trucking transports but excludes coverage of any loss resulting from infidelity, dishonesty or criminal acts. Defendant Great West believes that the loss of the shipment of butter was a result of one of these excluded acts. In deciding whether to stay and bifurcate, the question is whether determining defendant Great West’s duty to indemnify Joslin Trucking before resolving whether Joslin Trucking is liable for the loss would promote the interest of the parties and eliminate unnecessary litigation.

In support of its position, defendant Great West points to my opinion in United States v. Thorson, 219 F.R.D. 623 (W.D.Wis.2003), in which I found that determining whether an insurer is required to defend its insured should proceed a trial on liability. Id. at 629.In Thorson, the insured tendered the defense of plaintiff’s complaint to its insurance carrier, who at the time was not a party to the underlying suit. Id. at 626.In response, the insurance company brought a motion under Fed.R.Civ.P. 24 to intervene and to determine whether it had a duty to defend the insured against plaintiff. Id. In Thorson, it was more efficient and sensible to determine the coverage issue separately because it allowed the insurance company to avoid the unnecessary expenditure of attorney fees when it had no obligation to be involved in the suit.

However, defendant Great West does not contend that it has no duty to defend, merely that it has no duty to indemnify. Therefore, unlike Thorson, defendant Great West would not be saving itself from unnecessary litigation and expenses. Whether defendant Great West is liable for the alleged loss of cargo by defendant Joslin Trucking cannot be determined without first establishing whether any liability exists in the first place. Thus, staying and bifurcating would not promote efficient litigation in this instance because it would not eliminate unnecessary parties or reduce litigation. Furthermore, any declaration on whether defendant Great West is required to cover Joslin Trucking before finding it liable for the loss would be an advisory opinion at best. Because federal courts “possess no … authority to issue advisory opinions,”  Citizens for a Better Environment v. Steel Co., 230 F.3d 923, 927 (7th Cir.2000), a determination of the indemnification question will have to wait until the question of Joslin Trucking’s liability is resolved. Thus, I find that staying and bifurcating proceedings would not be proper.

B. Defendants Those Certain Underwriter’s Motion to Dismiss

Plaintiff has brought claims under the Carmack Amendment, 49 U.S.C. § 14706, which regulates the duties and liabilities of carriers who transport goods in interstate travel. Defendant Blue Thunder is a carrier who contracted with plaintiff to transport a load of butter in interstate travel. Plaintiff seeks to bring a direct suit against defendants Those Certain Underwriters because they insure defendant Blue Thunder. Under Wisconsin Law, a plaintiff can bring an action against an insurance company for the liability of individuals or entities it insures. The question is whether federal law allows a direct suit to be maintained against an insurance company for the liability of its insured under the Carmack Amendment.

Under 49 U.S.C. § 14706, federal courts have jurisdiction to hear suits for lost or damaged goods transported in interstate commerce brought by shippers against carriers. To state a claim under the Carmack Amendment, a plaintiff must allege that (1) goods intended for interstate commerce were delivered to a carrier in good condition; (2) the goods were lost or damaged; and (3) the amount of damages as a result of the lost or damaged shipment. Jos Schlitz Brewing Co. v. Transcon Lines, 757 F.2d 171, 172-173 (7th Cir.1985). In this case, plaintiff has alleged that it entered into a contract with defendant Blue Thunder to ship butter from Wisconsin to New Jersey. When defendant Joslin Trucking received the butter that it agreed to transport for defendant Blue Thunder, the load was in good condition. The shipment never arrived at the intended destination and neither defendants Blue Thunder or Joslin Trucking have returned the butter to plaintiff. The total cost of the butter was $65,425.50. Plaintiff’s claim appears on solid footing under the Carmack Amendment. Therefore, jurisdiction is present under 28 U.S.C. § 1331.

However, the basis for plaintiff’s complaint against defendants Those Certain Underwriters is unclear. The statute appears to be limited to suits brought by “delivering carrier[s]” and “carrier[s] alleged to have caused the loss or damage.”49 U.S.C. § 14706(d)(1)-(2). Nowhere in the statute is there any mention of joining insurers of motor carriers to the suit.

Plaintiff’s sole theory for joining defendants Those Certain Underwriters appears to be the insurance policy it has with defendant Blue Thunder. Indeed, the issue the parties briefed is whether Wisconsin’s direct action statute, Wis. Stat. § 632.24, allows plaintiff to join insurers to this action. Although Wisconsin’s direct action statute might be a way to sue insurers in federal court when a case is before a federal court pursuant to 28 U .S.C. § 1332 or § 1367, neither section is alleged in this complaint, and plaintiff’s claims against the carriers cannot be construed to include state law claims. Hughes v. United Van Lines, Inc., 829 F.2d 1407 (holding that remedy provision of Carmack Amendment preempts all state and common law remedies inconsistent with Interstate Commerce Act).

However, this case is not brought under Wisconsin law but federal law. As this court has held in the context of suits under 42 U.S.C. § 1983, “Wis. Stat. § 632.24 allows a direct action against an insurer when the underlying claim against the insured is for negligence … but not when the underlying claim is grounded on constitutional violations.”  Mombourquette v. Wisconsin Counties Mutual Insurance Corp., 2006 WL 1236732,(W.D.Wis.2006). The same rule would seem to apply in this case, where plaintiff brings its claim under another federal law. Both parties appear to assume that Wis. Stat. § 632.24 could apply to cases brought under 49 U.S.C. § 14706. However because plaintiff’s claim does not arise under state law, I am not sure why Wisconsin law should determine any issue in this case when the basis of plaintiff’s claim is federal law.

Although defendants Those Certain Underwriter have brought a motion to dismiss for failure to state a claim under Wisconsin’s direct action statute, Wis. Stat. § 632.24, its brief in support of the motion does not address the more general question whether a direct claim against an insurance company is proper in this case. Therefore, I will not grant the motion. However, I will order plaintiff to show cause why this court should not dismiss its claims against defendants Those Certain Underwriters and defendant Great West Casualty Company (against whom plaintiff also asserts a direct action claim) for failure to state a claim under the Carmack Amendment. Because this is an issue that applies to both insurers in this case, I will give them an opportunity to reply to plaintiff’s motion.

ORDER

IT IS ORDERED THAT:

1. Defendant Great West Casualty Company’s motion to stay liability proceedings and bifurcate coverage issues is DENIED.

2. The motion of defendants Those Certain Underwriters at Lloyd’s, London who subscribe to Certificate Number IRPI-CL-06-025 to dismiss plaintiff’s claim against them is DENIED.

3. Plaintiff Land O’ Lakes is ordered to show cause why its claims against defendants’ Those Certain Underwriters at Lloyd’s, London who subscribe to Certificate Number IRPICL-06-025 and Great West Casualty Company should not be dismissed for failure to state a claim under the Carmack Amendment, 49 U.S.C. § 14706. Plaintiff has until November 5, 2008, to file a brief addressing this issue. Defendants Those Certain Underwriters at Lloyd’s, London who subscribe to Certificate Number IRPI-CL-06-025 and Great West Casualty Company will have until November 14, 2008, to file briefs in opposition to plaintiff’s brief. If plaintiff does not file a brief on this matter by November 5, 2008, the clerk of court is ordered to dismiss the claims against the defendants Those Certain Underwriters at Lloyd’s, London who subscribe to Certificate Number IRPI-CL-06-025 and Great West Casualty Company.