Fulford v. Transport Service Co.

E.D.La.,2006.

United States District Court,E.D. Louisiana.

Shirley FULFORD, et al

v.

TRANSPORT SERVICE CO, et al.

Civil Action Nos. 03-2472, 03-2636.

 

Dec. 11, 2006.

 

 

 

ORDER AND REASONS

HELEN G. BERRIGAN, United States District Judge.

This order and reasons is to supplement and explain the Court’s prior ruling on the parties’ Motions in Limine.

 

 

I. Background

 

The plaintiffs allege that they suffered damages as a result of a chemical leak from a tractor-trailer tank truck operated by Transport Services Company of Illinois (“Transport”) on August 7, 2002. The chemicals in the truck allegedly came from Marathon Petroleum Company (“Marathon”), a refiner of crude oil. Marathon uses Sodium Hydroxide in its refining process to strip unwanted chemicals from the crude oil. After the Sodium Hydroxide is used, it is sent to a treater where it becomes spent caustic, Sodium Hydroxide. The spent caustic, Sodium Hydroxide is then shipped off to be used in the fertilizer business.

 

The plaintiffs’ complaint arises from an incident that occurred after the spent caustic, Sodium Hydroxide left the plant. They claim that it leaked from Transport’s truck when it was parked in their neighborhood, the 1600 block of Leondias Street in New Orleans, Louisiana. They brought this action in the Civil District Court for the Parish of Orleans, State of Louisiana alleging damages for personal injury, property damage, economic expense, inconvenience, mental anguish, aggravation of pre-existing conditions, and/or fear and fright under Louisiana law. The defendants properly removed to this Court and the plaintiffs’ petition for class certification was later denied. The case is now poised for trial, which is set for December 11, 2006.

 

 

II. Analysis

 

1. Transport’s Motion in Limine Regarding Inflammatory Comments

 

 

Transport seeks to prevent the plaintiffs, their attorneys and their witnesses from using inflammatory terms such as “witches brew” and “waste stream” when referring to the chemicals that allegedly leaked from the truck. Transport argues that these terms are inflammatory and based on unsubstantiated speculation that the truck’s cargo contained numerous chemicals other than those listed in the Materials Safety Data Sheet. Furthermore, Transport argues that the cargo was not a “waste product” because Marathon sells it.

 

The plaintiffs oppose this motion. They assert that “witches brew” and “waste product” are fair descriptions of the cargo. According to the plaintiffs, there may have been many chemicals in the truck, which formed the alleged “witches brew.” Also, the cargo was a “waste product” of the oil refining process. The plaintiffs point out that even Marathon’s representatives used the term “waste product” and that it is merely descriptive of the substance at issue.

 

The Court agrees with the plaintiffs that the terms “witches brew” and “waste product are descriptive. The plaintiffs’ expert witness, Richard Miller, an industrial hygienist, used the term “witches brew” to describe the substance. As long as he will be qualified as an expert witness, he will be permitted to use colorful descriptive terms. Furthermore, “waste product” is a descriptive term of the substance at issue because it was waste from the oil refining process. The fact that it had other uses and was sold by Marathon can be brought out on cross examination. For these reasons, Transport’s motion to exclude these terms is DENIED.

 

 

2. Transport’s Motion in Limine to Exclude Testimony Regarding Harmful Levels of Exposure to Chemicals

 

Transport filed a Motion in Limine to exclude testimony regarding harmful levels of exposure to chemicals. It contends that this testimony should be excluded because there is no evidence of the level, dosage, concentration or extent to which any of the plaintiffs were exposed to any chemicals.

 

The plaintiffs disagree. They argue that this testimony should be admissible because they do not need to prove dosage or concentration to show with scientific certainty that they were exposed to toxic chemicals. According to the plaintiffs, the substance that was allegedly in the truck may have contained many toxic chemicals which all leaked out on the day in question causing them various damages.

 

Federal Rule of Evidence 402 provides that “[a]ll relevant evidence is admissible.” Relevant evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without that evidence.” FED. R. EVID. 401.

 

Here, the testimony regarding the toxic levels of chemicals is relevant. It tends to make the fact that the plaintiffs were exposed to some toxic chemicals more likely than it would have been without that evidence. Furthermore, although “[s]cientific knowledge of the harmful levels of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiff’s burden in toxic tort cases,” the plaintiffs do not have to show the precise level of chemicals to which they were exposed. Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 670-71 (5th Cir.1999) (citing, Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 199 (5th Cir.1996)). In Curtis, the plaintiffs’ expert could not opine as to the specific level of chemicals to which the plaintiffs were exposed. However, the court allowed him to testify to the fact of chemical exposure based on the symptoms experienced by the plaintiffs and other factors. Similarly, the plaintiffs’ expert in the case at bar cannot testify to the exact levels of chemicals, however, he has evidence, such as the plaintiffs’ symptoms, upon which he based his opinions. Thus, his opinion is relevant and admissible.

 

 

3. Transport’s Motion in Limine to Exclude the Plaintiffs from Making a Claim for Fear of Contracting Cancer or Other Disease

 

Transport argues that the plaintiffs should be precluded from making a claim for fear of contracting cancer or other diseases. According to Transport, the plaintiffs never made this claim and then raised it for the first time in the pre-trial order. The plaintiffs, on the other hand, assert that they have always maintained a claim for fear of contracting cancer or other diseases, because it is a part of their claims under Louisiana law.

 

In their complaint, the plaintiffs allege that they were exposed to some chemicals. They claim that this alleged exposure caused them to suffer personal injury, mental anguish, economic expense and/or loss, evacuation and/or inconvenience, fear and fright, and/or aggravation of preexisting conditions. See, Rec. Doc. 1. The Court construes this “fear and fright” claim as encompassing the fear of what could happen in the future. Because the plaintiffs’ allege that they were exposed to hazardous or toxic chemicals, fear of future events reasonably includes a fear of developing cancer or other diseases. Therefore, Transport’s motion to exclude these claims is DENIED.

 

 

4. Plaintiffs’ Motion in Limine to Prevent Transport from Offering Evidence of Jacquline Gordon’s Criminal History

 

The plaintiffs filed a motion in limine to prevent Transport from offering evidence of plaintiff Jacquline Gordon’s criminal history. In her deposition, Jacquline Gordon revealed that she has two criminal convictions. One for obstructing the sidewalk and the other for drug distribution. Transport would like to introduce her drug distribution conviction into evidence, arguing that it impacts her credibility. The plaintiffs’ seek to exclude this evidence because the conviction occurred more than fifteen (15) or twenty (20) years ago.

 

Federal Rule of Evidence 609 provides that evidence of a witness’s prior convictions can be admitted if they are relevant felony convictions or involved dishonest or false statement. Fed.R.Evid. 609(a). However, evidence of a conviction “is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date,” unless the Court finds that the probative value outweighs the prejudice.  Fed.R.Evid. 609(b).

 

Here, Jacquline Gordon’s obstruction of the sidewalk conviction was a misdemeanor conviction that did not involve a crime of dishonesty or any false statements. Therefore any evidence of this conviction is inadmissible. Furthermore, Jacquline Gordon’s felony drug conviction is more than ten years old and its probabtive value does not outweigh the potential prejudice. Therefore, the plaintiffs’ motion in limine is GRANTED.

 

 

5. Plaintiffs’ Motion in Limine to Prevent Transport from Offering Evidence of Bobby Gordon’s Criminal History

 

The plaintiffs also filed a motion in limine to prevent Transport from offering evidence of plaintiff Bobby Gordon’s criminal history. In his deposition, Bobby Gordon revealed that he has some criminal convictions. In 1984, 1985 and 1986 he was convicted of receiving stolen goods. He served a five year confinement for these convictions, which at the latest ended in 1991, more than ten years ago. Bobby Gordon was also convicted of theft by fraud in 2002 and was sentenced to restitution and three years probation. The plaintiffs seek to exclude this conviction, arguing that it is more prejudicial than probative. Transport, on the other hand, argues that Bobby Gordon’s theft by fraud conviction is less than ten years old and is relevant to Bobby Gordon’s credibility.

 

Federal Rule of Evidence 609 provides that evidence of a witness’s prior convictions can be admitted if they are relevant felony convictions or involved dishonest or false statement. Fed.R.Evid. 609(a). However, evidence of a conviction “is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date,” unless the Court finds that the probative value outweighs the prejudice.  Fed.R.Evid. 609(b).

 

The Court finds that Bobby Gordon’s convictions in the 1980’s are inadmissible. They do not fall within the ten year window of Rule 609 and their probative value is outweighed by the potential prejudice. However, Bobby Gordon’s 2002 felony conviction for theft by fraud is admissible. This conviction and/or resulting punishment is not more than ten years old and is probative on the issue of his credibility. Accordingly, Plaintiff’s motion to exclude Bobby Gordon’s criminal history is PARTIALLY GRANTED AND PARTIALLY DENIED.

 

 

III. Conclusion

 

For the reasons stated above,

 

IT IS ORDERED that:

 

1) Transport’s Motion in Limine to exclude inflammatory comments is DENIED.

 

2) Transport’s Motion in Limine to exclude testimony regarding harmful levels of exposure to chemicals is DENIED.

 

3) Transport’s Motion in Limine to exclude claims for fear of contracting cancer or other diseases is DENIED.

 

4) Plaintiffs’ Motion in Limine to Prevent Transport from Offering Evidence of Jacquline Gordon’s Criminal History is GRANTED.

 

5) Plaintiffs’ Motion in Limine to Prevent Transport from Offering Evidence of Bobby Gordon’s Criminal History is PARTIALLY GRANTED AND PARTIALLY DENIED.

 

E.D.La.,2006.

Fulford v. Transport Service Co.

Empire Fire & Marine Ins. Co. v. Speedy Transport of N.J., Inc.

D.N.J.,2006.NOT FOR PUBLICATION

United States District Court,D. New Jersey.

EMPIRE FIRE & MARINE INSURANCE CO., Plaintiff,

v.

SPEEDY TRANSPORT OF N.J., INC., Thomas C. Vitale, Sr., Administrator of the Estate of Thomas C. Vitale, Jr., Defendants,

And Hanover Insurance Company, Defendant/Intervenor.

Civil Action No. 05-1048 (GEB).

 

Dec. 20, 2006.

 

 

 

MEMORANDUM OPINION

BROWN, Chief Judge.

This matter comes before the Court upon the Motion for Summary Judgment of Plaintiff Empire Fire & Marine Insurance Co. (“Empire Fire”) against Defendants Speedy Transport of N.J., Inc. (“Speedy Transport”) and Thomas C. Vitale, Sr. (“Vitale, Sr.”), Administrator of the Estate of Thomas C. Vitale, Jr. (“Vitale, Jr.”) (collectively “Defendants”). The Court has reviewed all documents filed and submitted and has decided the motion without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court will deny Empire Fire’s Motion for Summary Judgment.

 

 

BACKGROUND

 

On April 17, 2004, Mr. Vitale, Jr. was struck and killed by a vehicle while riding his motorcycle. (Pl. Br. at 2; Def. Opp’n at 3 .) The automobile involved in the collision was not insured. (Pl. Br. at 2; Def. Opp’n at 3.) This action was initiated by the Administrator of the estate of Mr. Vitale, Jr. and Speedy Transport.

 

Mr. Vitale, Jr. was the principal and only employee of Speedy Transport, a towing company that owned one vehicle, a 1999 International flatbed tow truck.  (Def. Opp’n at 4.) That vehicle was insured by Empire Fire under policy number CL427989, a policy issued on July 25, 2003. (Pl. Br. at 1; Def. Opp’n at 4.)

 

The motorcycle operated by Mr. Vitale, Jr. at the time of his accident was insured through Rider Insurance. (Def. Opp’n at 4.) Mr. Vitale, Jr. also owned a personal vehicle insured under a one-year Hanover policy issued on June 2, 2003. (Id.) Both policies provided for uninsured motorist (UM) benefits.  (Id.)

 

The estate of Mr. Vitale, Jr. submitted a claim with Empire Fire for uninsured/under-insured motorist benefits in connection with the accident in which Mr. Vitale lost his life. (Compl.¶  11.) Empire Fire has refused to process the claim, on the grounds that Mr. Vitale, Jr.’s costs were not covered by the Empire Fire policy. (Id., at ¶  12.) On February 15, 2005, Empire Fire filed a Complaint against Defendants in this Court seeking a declaration that no uninsured motorist coverage should be afforded to Mr. Vitale, Jr. (Compl. at 3.) On December 20, 2005, Hanover Insurance Co. (“Hanover”) was granted the right to intervene in this action as an original party defendant. On March 8, 2006, Empire Fire filed a Motion for Summary Judgment against Defendants. Hanover was the only party to oppose the motion.

 

 

DISCUSSION

 

A. STANDARD

 

 

A party seeking summary judgment must “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.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir.1986). The threshold inquiry is whether there are “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (noting that no issue for trial exists unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in its favor). In deciding whether triable issues of fact exist, the court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir.1987).

 

 

B. APPLICATION

 

Empire Fire requests summary judgment that coverage under the Empire policy is limited to accidents involving the Speedy Transport tow truck, and that Mr. Vitale, Jr. is therefore not entitled to UM benefits under the Empire Fire policy. The Court will deny Plaintiff’s request for the following reasons.

 

Under the law of the State of New Jersey, “[a]n insurance policy generally should be interpreted according to its plain and ordinary meaning.”  Progressive Casualty Ins. v. Hurley, 166 N.J. 260, 272-73 (2000), citing Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990). “In the absence of any ambiguity, courts should not write for the insured a better policy of insurance than the one purchased.” Progressive, at 273 (quotations omitted), quoting Longobardi, 121 N.J. at 537. “However, when a policy is unclear ambiguities ordinarily are resolved in favor of the insured.”  Progressive, at 273, citing Cruz-Mendez v. ISU/Ins. Servs., 156 N.J. 556, 571 (1999); see also Cumberland Mut. Fire Ins. Co. v. Murphy, 183 N.J. 344, 351 (2005). Indeed, where the language of an insurance policy supports two meanings, one favorable to the insurer and the other to the insured, the interpretation favoring coverage should be applied. Aetna Ins. Co. v. Weiss, 174 N.J.Super. 292, 296 (N.J.Super.Ct.App.Div.1980). A “genuine ambiguity” arises only “where the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage.” Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979); see also Nunn v. Franklin Mut. Ins. Co., 274 N.J.Super. 543, 548 (N.J.Super.Ct.App.Div.1994).

 

 

In determining what law to apply to claims under an insurance contract, New Jersey courts have adopted a flexible approach that focuses on the state that has the most significant connections with the parties and the transaction. Bell v. Merchants & Businessmen’s Mut. Ins. Co., 241 N.J.Super. 557, 561-62 (N.J.Super .Ct.App.Div.1990), cert. denied, 122 N.J. 395 (N.J. Oct. 10, 1990); McCabe v. Great Pac. Century Corp., 222 N.J.Super. 397, 399 (N.J.Super.App.Div.1988). “[B]ecause the law of the place of contract generally comport[s] with the reasonable expectations of the parties concerning the principal situs of the insured risk, that forum’s law should be applied unless the dominant and significant relationship of another state to the parties and the underlying issue dictates that this basic rule should yield.” Gilbert Spruance Co. v. Pa. Mfrs. Ass’n Ins. Co., 134 N.J. 96, 102 (1993) (quotations omitted), quoting State Farm Mut. Auto. Ins. Co. v. Estate of Simmons, 84 N.J. 28, 36-37 (1980). Accordingly, the law of the state of New Jersey will be applied in construing the terms of the insurance contract.

 

Whether Mr. Vitale was covered by the Empire policy for costs incurred as a result of his accident hinges on whether he was an “insured” under the policy. The policy provides that:

 

If the Named Insured is designated in the Declarations as:

1. An individual, then the following are “insureds”:

a. The Named Insured and any “family members”.

b. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”. The covered “auto” must be out of service because of its breakdown, repair, servicing, “loss” or destruction.

c. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured”.

2. A partnership, limited liability company, corporation or any other form of organization, then the following are “insureds”:

a. Anyone “occupying” a covered “auto” or a temporary substitute for a covered “auto”. The covered “auto” must be out of service because of its breakdown, repair, servicing, “loss” or destruction.

b. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured”.

 

Pl. Br., Ex. A. Empire Fire argues that the only named insured under the policy is Speedy Transport of New Jersey, Inc. and that neither the estate of Mr. Vitale, Jr. nor Hanover have offered any evidence suggesting that Mr. Vitale, Jr. qualified as insured under the policy. Pl. Br. at 3. Empire Fire concludes that Mr. Vitale, Jr. cannot be covered under the policy as the “covered auto” (the 1999 Flatbed Truck) was not involved in the accident that claimed his life.

 

Hanover responds that the Empire Fire policy is ambiguous on the issue of whether Mr. Vitale, Jr. or Speedy Transport Inc. are to be considered “insured.” In particular, Hanover argues that while the corporate entity Speedy Transport is indeed listed as the named insured, the named insured is also described as an “Individual.” Def. Opp’n at 11. This, it claims, would be consistent with Mr. Vitale, Jr.’s status as sole principal and employee of Speedy Transport. Id. Moreover, the policy includes an “Individual Named Insured” form, or Form CA 99 17 10 01, which Hanover contends would not have been issued if the named insured had been Speedy Transport rather than Mr. Vitale, Jr. Id. Similarly, the underwriting file prepared in connection with the policy at issue lists Mr. Vitale, Jr. as the “applicant named insured” and refers to the type of business as “individual.” Def. Opp’n, Ex. 7.

 

 

CONCLUSION

 

 

Plaintiff also argues that it need not reimburse Hanover for any costs relating to Mr. Vitale, Jr.’s accident even if the Court were to find that he was covered by the Empire Fire policy. Plaintiff does not, however, appear to seek summary judgment on the issue. For the sake of completeness, the Court will nonetheless consider Plaintiff’s argument as a request for summary judgment.

Plaintiff claims that since the Empire policy provides that “[a]ny insurance [Empire Fire] provide with respect to a vehicle the Named Insured does not own shall be excess over any other collectible uninsured motorists or underinsured motorists insurance providing coverage on a primary basis,” “the intervenor Hanover is entitled to no reimbursement for any monies paid, and must fully exhaust its coverage.” Pl. Br. at 6-7, quoting Empire Fire Policy, Def. Opp’n, Ex. 7. Defendants respond, however, that the statutory provision of N.J.S.A. §  17:28-1.1(c) raises a genuine issue of material fact as to whether Empire Fire is exempt from contribution on those grounds. That statute provides, in part:

Uninsured and underinsured motorist coverage provided for in this section shall not be increased by stacking the limits of coverage of multiple motor vehicles covered under the same policy of insurance nor shall these coverages be increased by stacking the limits of coverage of multiple policies available to the insured. If the insured had uninsured motorist coverage available under more than one policy, any recovery shall not exceed the higher of the applicable limits of the respective coverages and the recovery shall be prorated between the applicable coverages as the limits of each coverage bear to the total of the limits.

N.J.S.A. §  17:28-1.1(c) (emphasis added).

Viewing all evidence in light most favorable to non-movant, this Court finds that there remains a genuine issue of material fact as to whether Empire Fire is exempt from reimbursing Hanover on the grounds that Empire Fire’s coverage is excess. The Court will therefore deny Empire Fire’s motion for summary judgment on the issue.

 

Given the ambiguous nature of the language governing the Empire Fire policy’s coverage, and viewing all evidence in light most favorable to non-movant, the Court finds that there is a genuine issue of material fact as to whether Mr. Vitale, Jr. was covered as an individual insured under the Empire policy. See Progressive, 166 N.J. 260, 276 (2001) (denying plaintiff’s motion for summary judgment that individual defendant was not entitled to UM coverage under auto insurance policy on the grounds (i) that while named insured was corporation, endorsement referred to “family members” of named insured, and (ii) that corporation was “closely-held family corporation” often “identified with family members for purposes of interpreting UM/UIM clauses in insurance policies.”). The Court will therefore deny Plaintiff’s motion for summary judgment on the issue. An appropriate form of Order accompanies this Opinion.

 

D.N.J.,2006.

Empire Fire & Marine Ins. Co. v. Speedy Transport of N.J., Inc.