2021 WL 1397011

United States District Court, E.D. Pennsylvania.
ANTHONY CERBONE, et al., Plaintiffs,
v.
ALLIED VAN LINES, INC., et al., Defendants.
CIVIL ACTION NO. 20-6276
|
04/12/2021

GERALD J. PAPPERT, J.

PAPPERT, J. April 12, 2021
MEMORANDUM
*1 Anthony Cerbone and his wife Carmella sued Allied Van Lines, Inc., SIRVA, Inc., Simonik Moving & Storage, Inc. and Simonik Transportation & Warehousing, LLC after Anthony was injured while helping load his motorcycle onto a mover’s truck. They also seek compensation for damage to other property incurred during their move from Pennsylvania to Florida. Defendants move to partially dismiss the Amended Complaint. The Court grants the Motion in part and denies it in part for the reasons that follow.

I A
The Cerbones moved from Pennsylvania to Florida in 2019. (Am. Compl. ¶¶ 1–2, 23, 35.) Before doing so, they contacted Allied about its moving and storage services. (Id. at ¶ 16.) Allied provided them several names of certified contractors, and Anthony ultimately contracted with one of them, Simonik Moving. (Id. at ¶¶ 17, 20.) The Cerbones believe Simonik Moving contracted separately with Simonik Transportation to “actually perform” the move. (Id. at ¶ 21.)

Anthony’s motorcycle was among the items to going to Florida. (Id. at ¶ 18.) The Cerbones made Simonik Moving aware the motorcycle “must be included” in their move “[i]n the months and weeks leading up to” it, including by listing it in their contract as part of the inventory to be moved. (Id. at ¶¶ 18, 20); (Am. Compl. Ex. A 5, ECF 7-3.)

The Simonik Transportation movers came to the Cerbones on September 9, 2019 to load the Cerbones’ belongings in a moving truck. The moving crew foreman saw that Anthony’s motorcycle “was in excellent condition” and “did not note any pre-existing marks or scratches.” (Am. Compl. ¶¶ 22–24.) But on three occasions he “refused to receive [it] for transport and delivery,” explaining it was too heavy to push into the moving truck. See (id. at ¶¶ 25–27). Each time, he suggested that Anthony drive the motorcycle up a ramp placed by the movers to get it into the truck himself. (Id.) Anthony rejected this idea twice, but eventually agreed to do so after all other items had been loaded onto the truck. (Id.)

Movers “directed” Anthony to drive the motorcycle up the ramp, which they placed leading into the truck’s right corner. (Id. at ¶ 28.) He drove approximately halfway up the ramp and then realized the motorcycle’s right handlebar was not going to clear the truck’s right side. (Id. at ¶ 29.) While on the ramp, he applied the brakes and tried putting his feet down, but the ramp’s width and orientation left no space for him to ground his right foot. (Id.) He fell approximately five feet off the ramp and the motorcycle landed on top of him, causing him “serious and permanent personal injuries,” and “significantly damag[ing]” the motorcycle. (Id. at ¶¶ 30–31.)

Anthony was taken to the hospital and movers loaded the motorcycle onto the truck themselves, transported the Cerbones’ belongings to storage and delivered them in Florida on December 16, 2019. (Id. at ¶¶ 33, 35.)1 Some items were “delivered with substantial damage caused by storage and delivery” and the Cerbones submitted a Statement of Claim for those damages. (Id. at ¶ 39.) The Statement excluded a claim for damage to the motorcycle. See (id. at ¶¶ 37, 40); see generally (Am. Compl. Ex. B, ECF 7-4). The movers noted in a Motorcycle Condition Report that the motorcycle was damaged “before loading.” (Am. Compl. ¶ 32); see also (Mot. to Dismiss Ex B, ECF 9-3). The Cerbones believe they did this “so that Simonik would not be responsible for the damage to the motorcycle because the damage happened before Simonik took possession and control of the motorcycle.” (Am. Compl. ¶ 32). The Cerbones excluded the motorcycle from their Statement of Claim to show it was damaged before the movers “received [it] for loading, transportation and delivery.” (Id. at ¶ 40.)

*2 Carmella executed on Allied letterhead a Bill of Lading dated September 4, 2019 listing Allied next to the word “Corporate” and Simonik Moving next to the words “Booking” and “Origin” under the heading “Carrier/Agent Contacts.” See (Am. Compl. Ex. A 11).

B
The Cerbones filed an Amended Complaint on January 8, 2021 asserting negligence against SIRVA (Count II), Allied (Count III), Simonik Moving (Count IV) and Simonik Transportation (V) as well as loss of consortium (Count VI) and negligent infliction of emotional distress (Count VII) against all Defendants for injuries related to the motorcycle accident. See (Am. Compl. ¶¶ 59–105). The Amended Complaint also brings Carmack Amendment claims against SIRVA (Count I) and Allied, Simonik Moving and Simonik Transportation (Count VIII) for damages to other property during the move. See (id. at ¶¶ 47–58, 106–113).

Defendants move to dismiss Counts II-VII entirely and Count VIII in part. They argue Counts II-VII are preempted by the Carmack Amendment. See generally (Mot. to Dismiss 17–22, ECF 9-2). They further contend Simonik Moving and Simonik Transportation must be dismissed from Count VIII because they acted as Allied’s agents and that agents for a disclosed principal cannot be held liable for Carmack claims. See generally (id. at 22–25).

II
To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pled “allow[ ] the court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—’that the pleader is entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

When a complaint includes well-pleaded factual allegations, a court “should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). “Conclusory assertions of fact and legal conclusions are not entitled to the same presumption.” Id. This plausibility determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (quoting Connelly, 809 F.3d at 786–87).

While “courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” in deciding a motion to dismiss, Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), “an exception to the general rule is that a ‘document integral to or explicitly relied upon in the complaint’ may be considered ‘without converting the motion into one for summary judgment.’ ” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis in original) (citation omitted). “[W]hat is critical is whether the claims in the complaint are ‘based’ on an extrinsic document and not merely whether the extrinsic document was explicitly cited.” Id.

*3 District Courts in the Third Circuit “may grant a Rule 12(b)(6) motion on the basis of an affirmative defense ‘if the predicate establishing the defense is apparent from the face of the complaint.’ ” Brody v. Hankin, 145 F. App’x 768, 771 (3d Cir. 2005) (quoting Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 n.10 (3d Cir. 1978) (emphasis in original)); cf. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 657 (3d Cir. 2003) (“[W]ith some exceptions, affirmative defenses should be raised in responsive pleadings, not in pre-answer motions brought under Rule 12(b)” because “[t]he facts necessary to establish an affirmative defense must generally come from matters outside of the complaint.”). “Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract.” Jones v. Bock, 549 U.S. 199, 215 (2007). A defendant bears the burdens of production and persuasion for affirmative defenses. See Moore v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003). “Under Federal Rule of Civil Procedure 8, a complaint need not anticipate or overcome affirmative defenses; thus, a complaint does not fail to state a claim simply because it omits facts that would defeat” an affirmative defense. Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).

III A
The Carmack Amendment limits interstate carrier liability for damage to or loss of goods:
A carrier providing transportation or service…shall issue a receipt or bill of lading for property it receives for transportation….That carrier and any other carrier that delivers the property and is providing transportation or service…are liable to the person entitled to recover under the receipt or bill of lading….for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States….
49 U.S.C. § 14706(a)(1) (emphasis added).

Carmack “embrace[s] ‘all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation’ ” and has “exceedingly broad” preemptive force. Certain Underwriters at Interest at Lloyd’s of London v. United Parcel Serv. of Am., Inc., 762 F.3d 332, 335 (3d Cir. 2014) (quoting Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190, 196 (1916)). “It has uniformly been held that state law causes of action involving losses of or damages caused by the interstate shipment of household goods by common carriers under a bill of lading, whether contract based or tort based claims, are preempted by the Carmack Amendment.” Strike v. Atlas Van Lines, 102 F. Supp. 2d 599, 600 (M.D. Pa. 2000); see also Certain Underwriters, 762 F.3d at 336 (“State laws are preempted regardless of whether they contradict or supplement Carmack relief.”).

Courts of Appeals nonetheless “have identified a peripheral set of state and common law causes of action that are not preempted by the Carmack Amendment,” including claims based on conduct or harms “apart from the delay, loss, or damage to shipped property.” Certain Underwriters, 762 F.3d at 336 n.4 (citing White v. Mayflower Transit, LLC, 543 F.3d 581, 585–86 (9th Cir. 2008); Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th Cir. 1997)); see also Smith v. United Parcel Serv., 296 F.3d 1244, 1249 (11th Cir. 2002) (“claims based on conduct separate and distinct from the delivery, loss of, or damage to goods escape preemption”); Morris v. Covan World Wide Moving, 144 F.3d 377, 382 (5th Cir. 1998) (“[T]he Carmack Amendment preempts any common law remedy that increases the carrier’s liability beyond ‘the actual loss or injury to the property,’…unless the shipper alleges injuries separate and apart from those resulting directly from the loss of shipped property.”).

Courts are split on whether they follow a distinct conduct or distinct harm theory to analyze Carmack preemption. See Krauss v. IRIS USA, Inc., No. 17-778, 2017 WL 5624951, at *5 (E.D. Pa. Nov. 22, 2017). The Third Circuit has not stated its preferred approach, but numerous courts in the Circuit have applied the conduct theory. See, e.g., id. at *6–7; Mallory v. Allied Van Lines, Inc., No. 02-cv-7800, 2003 WL 22391296, at *4 (E.D. Pa. Oct. 20, 2003); Strike, 102 F. Supp. 2d at 601.

*4 Defendants argue they are each governed by Carmack because they are “carriers” involved in the “transportation” of goods as those terms are defined in the statute. (Mot. to Dismiss 16.) They contend Carmack preempts Counts II-VII because the facts surrounding the motorcycle accident and supporting those claims “relate exactly to the Defendant-carriers’ conduct in providing ‘transportation’…to Plaintiffs.” (Id. at 17.) The Cerbones’ allegations demonstrate the motorcycle “was always an integral part of Defendants’ contracted-for transportation of [Plaintiffs’] household goods to Florida” and Plaintiffs say the accident occurred “during the loading process.” (Mot. to Dismiss 19, 21); see also (Am. Compl. Ex. B 4). “Defendants were ‘arranging for’ ‘delivery, elevation,…handling [and] packing’ of the motorcycle when the accident occurred.” (Mot. to Dismiss 21); see also (Reply 3 (“The only issue at the time of the incident was how the motorcycle would be loaded: not whether it would be loaded, whether Defendants were in control of how it would be loaded, or whether it would be part of the household goods delivered to Florida.”) (emphasis in original)).

Indeed, in their Amended Complaint, the Cerbones claim their damages from the accident resulted from Simonik Transportation movers negligently performing their jobs, such as by carelessly controlling the ramp and directing Mr. Cerbone to drive the motorcycle up it. See (Mot. to Dismiss 18, 21); (Am. Compl. ¶¶ 28–30). Every count of negligence in the Amended Complaint assigns liability to Defendants for conduct relating to placing the ramp and loading the motorcycle onto the truck. See (Mot. to Dismiss 20–21); (Am. Compl. ¶¶ 61, 69, 82, 94).

The Cerbones contend Carmack does not govern or preempt Counts II-VII because Defendants refused to accept the motorcycle for carriage, and the motorcycle was not within Defendants’ control, when the accident occurred. (Resp. to Mot. to Dismiss 2, 7, 13, ECF 10.) They emphasize the Motorcycle Condition Report documents the motorcycle’s damages as existing “before loading” and say their Bill of Lading includes only an already damaged motorcycle. (Id. at 5–6, 13, 15.) They argue even if Carmack does apply, the conduct leading to the accident is entirely distinct from the conduct that caused damages to Plaintiffs’ household goods. (Id. at 11.)

i Before evaluating whether the Carmack Amendment preempts Counts II-VII, the Court must determine whether the statute applies to the Defendants, all of whom define themselves as “carriers.” Accepting the Cerbones’ allegations as true, however, the Court can only define Simonik Transportation as a carrier.

Under the Carmack Amendment, a carrier is “a motor carrier, a water carrier, and a freight forwarder.” 49 U.S.C. § 13102(3). A “motor carrier” is defined as “a person providing motor vehicle transportation for compensation.” Id. at § 13102(14). “Transportation” includes “services relating to [the movement of property], including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking.” Id. at § 13102(23)(B). “Thus, the definition of ‘carrier’ encompasses entities that perform services other than physical transportation.” TRYG Ins. v. C.H. Robinson Worldwide, Inc., 767 F. App’x 284, 286 (3d Cir. 2019).

A carrier is distinct from other actors, such as brokers, in a shipping transaction. A “broker” is defined as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation. 49 U.S.C. § 13102(2). Although Carmack precludes many claims against carriers, it does not preempt claims against brokers. See, e.g., Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1300 (11th Cir. 2018); 5K Logistics, Inc. v. Daily Express, Inc., 659 F.3d 331, 338 (4th Cir. 2011); Traction Tire, LLC v. Total Quality Logistics, LLC, No. 19-5150, 2020 WL 6044179, at *5–6 (E.D. Pa. Oct. 13, 2020).

*5 Whether a particular entity is a carrier, rather than a broker or other actor, is a fact-specific question dependent on the entity’s actions during the “specific transaction” at issue, “which includes ‘the understanding among the parties involved [and] consideration of how the entity held itself out.’ ” Luis M. Marson Jr., Inc. v. Alliance Shippers, Inc., 438 F. Supp. 3d 326, 331 (E.D. Pa. 2020) (quoting Richwell Grp., Inc. v. Seneca Logistics Grp., LLC, 425 F. Supp. 3d 57, 61 (D. Mass. 2019)); see also id. (“[W]hether a company is a…carrier is not determined by what the company labels itself, but…its relationship to the shipper.”) (internal quotations and citation omitted).2 Neither the licenses an entity holds nor its label in a contract are dispositive. See id. at 332. In a nonprecedential opinion, the Third Circuit Court of Appeals explained:
[I]n determining whether a party is a carrier or a broker, the crucial question is whether the party has legally bound itself to transport goods by accepting responsibility for ensuring the delivery of the goods. If an entity accepts responsibility for ensuring the delivery of goods, then that entity qualifies as a carrier regardless of whether it conducted the physical transportation. Conversely, if an entity merely agrees to locate and hire a third party to transport the goods, then it is acting as a broker….In sum, if a party has accepted responsibility for transporting a shipment, it is a carrier.
TRYG Ins., 767 F. App’x at 286–87 (footnote citations omitted).

1
With one exception, the Amended Complaint sheds little light on which Defendants acted as carriers. Simonik Transportation, the only entity alleged to have participated in the physical movement of the Cerbones’ property, fits the carrier definition. But the Amended Complaint is silent with respect to SIRVA’s role. And the pleadings muddle the Cerbones’ relationships with Allied and Simonik Moving enough to preclude a determination at this stage as to whether one or both of those entities is a carrier.

The Cerbones allege they entered a contract with Simonik Moving but also claim Simonik Moving contracted with Simonik Transportation to “actually perform the move.” (Am. Compl. ¶¶ 20–21.) They do not allege they contracted with Allied and primarily say Allied only provided referral services. See (Am. Compl. ¶¶ 17, 69(b)). Yet, in one paragraph of the Amended Complaint, they allege Allied breached its “duties under the contract.” See (Am. Compl. ¶ 69). Which entity allegedly accepted responsibility for delivering the Cerbones’ property to Florida is unclear.

The exhibits attached to the Amended Complaint further obfuscate the delineation between the roles Allied and Simonik Moving allegedly played and also fail to establish which entity accepted responsibility for the shipment or whether one entity merely agreed to engage a third party. Exhibit A, which the Cerbones describe as their contract with Simonik Moving (Am. Compl. ¶ 20), in fact contains a series of documents with varying references to Allied, Simonik Moving or both, see generally (Am. Compl. Ex. A), some of which appear to be incomplete, see, e.g. (id. at 8–9) (providing pages fourteen and fifteen, but no preceding or subsequent pages, of bill of lading terms and conditions describing carrier responsibilities without identifying carrier). Exhibit B, purportedly the Cerbones’ Statement of Claim (Am. Compl. ¶ 39), appears on Allied letterhead, but Exhibit C, an email between Anthony and a Senior Claims Adjuster at SIRVA regarding the Statement of Claim, suggests Allied may have never actually handled it.3 See generally (Am. Compl. Ex. B); (Am. Compl. Ex. C).

*6 In sum, only Simonik Transportation can be deemed a carrier at this point. Other Defendants may be carriers as well, but further fact development is necessary to make that determination. Because the Court cannot yet conclude SIRVA, Allied or Simonik Moving are carriers, the Court assesses only whether Carmack preempts the claims against Simonik Transportation in Count V. Defendants’ Motion will be denied with respect to Counts II, III and IV as well as with respect to Counts VI and VII as they are alleged against SIRVA, Allied and Simonik Moving.
ii

Notwithstanding the Cerbones’ allegations that Simonik Transportation refused to “receive the motorcycle for transport and delivery,” the Carmack Amendment preempts all claims against Simonik Transportation related to the accident with the motorcycle. The movers’ actions and circumstances surrounding the accident fall squarely within the definition of “transportation” under Carmack, which again includes “services relating to [the movement of property], including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking.” 49 U.S.C. § 13102(23)(B) (emphasis added).

The Cerbones contend they told Simonik Moving the motorcycle “must be included” in their move “[i]n the months and weeks leading up to” it and provide a signed inventory list from May of 2019 that includes the motorcycle. These allegations show it was understood and agreed that the motorcycle was included among the property to be transported to Florida. The Cerbones also allege that while the movers refused to push the motorcycle into the truck themselves, the foreman repeatedly asked Anthony to do so, showing the motorcycle was part and parcel of everything being moved to Florida. And ultimately, the movers “directed” Anthony to drive his motorcycle into the truck using the ramp they had set up. Taken together, these allegations, paired with common sense, dictate that Simonik Transportation was, at the bare minimum, “arranging for” the motorcycle’s “movement” at the time of the accident. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 786–87 (3d Cir. 2016) (“The plausibility determination is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”).4

The Cerbones claim that “[a]s a result” of Anthony having no room to place his right foot on the ramp set up by Simonik Transportation, he fell approximately five feet to the ground “and the motorcycle landed on top of him, causing serious and permanent personal injuries.” (Am. Compl. ¶ 30.) “As a result of the motorcycle crushing Plaintiff and falling five feet from the ramp placed by Simonik, the motorcycle sustained significant damage.” (Id. at ¶ 31.) Moreover, Carmella suffered injuries “[a]s a result” of her husband’s involvement in the motorcycle accident. See (id. at ¶¶ 100, 105). The Cerbones’ alleged injuries from the accident are inextricably intertwined with the damage to the motorcycle, one of the items of property being transported to Florida. The injuries forming the basis of the Cerbones’ state law causes of action did not occur “apart from the delay, loss, or damage to shipped property,” see Certain Underwriters, 762 F.3d at 336 n.4. Carmack preempts those state law claims under either a conduct or harm theory.

*7 Defendants’ Motion is granted with respect to Count V because Carmack precludes the Cerbones’ negligence claim again Simonik Transportation. The allegations in Counts VI and VII against Simonik Transportation are also dismissed.

B
Courts “regularly…appl[y] agency principles to Carmack Amendment claims.” Mallory v. Allied Van Lines, Inc., No. 02-cv-7800, 2004 WL 870697, at *2 (E.D. Pa. Apr. 7, 2004) (collecting cases). Under the Restatement (Third) of Agency, an agent that contracts for a disclosed principal becomes neither party to or liable for performance of the contract unless the agent and third party contracting with the principal agree otherwise. See Restatement (Third) of Agency § 6.01. Agents are, however, liable for their tortious conduct that causes harm to a third party “[u]nless an applicable statute provides otherwise” if they breach a duty they owed to the third party. Id. at §§ 7.01– .02. Under the Carmack Amendment:
Each motor carrier providing transportation of household goods shall be responsible for all acts or omissions of any of its agents which relate to the performance of household goods transportation services…and which are within the actual or apparent authority of the agent from the carrier or which are ratified by the carrier.
49 U.S.C. § 13907(a). “Not only does the statutory language impose liability on a motor carrier for the acts and omissions of the carrier’s agent, but case law holds the agent of a disclosed principal cannot be held liable pursuant to a duly issued bill of lading contract.” Werner v. Lawrence Transp. Sys., Inc., 42 F. Supp. 2d 567, 568–69 (E.D.N.C. 1998).

Defendants argue Count VIII must be dismissed as to Simonik Moving and Simonik Transportation because they acted as Allied’s agents. (Mot. to Dismiss 22–23.) Notwithstanding the Cerbones’ contention that they contracted with Simonik Moving, the Estimate and Order for Service and Bill of Lading attached to the Amended Complaint show Allied was the corporate carrier with whom they contracted and Simonik was its agent. (Id.); see also (Am. Compl. Ex. A 1, 4, 11, 44). The Cerbones do not respond to this argument.

Because the Court cannot identify which of SIRVA, Allied or Simonik Moving acted as a “carrier,” it also cannot at this point determine which Defendants are properly named in Count VIII as carriers rather than carriers’ agents. The Amended Complaint appears to suggest Allied, Simonik Moving, and Simonik Transportation all acted as SIRVA’s agents, see (Am. Compl. ¶¶ 49, 62), and that Simonik Moving and Simonik Transportation also acted as Allied’s agents, see (id. at ¶ 70), and some of the documents attached to the Amended Complaint list Simonik Moving as an “origin agent,” see, e.g., (Am. Compl. Ex. A 4, 11). But none of this resolves the currently ill-defined relationships among Defendants or between Defendants and the Cerbones with respect to their move. This issue, too, can be resolved later in the case. Defendants’ Motion is denied with respect to Count VIII.

IV
A district court may properly deny leave to amend a complaint where further amendment would be futile. See Forman v. Davis, 371 U.S. 178, 182 (1962). “ ‘Futility’ means that the complaint, as amended, would fail to state a claim upon which relief could be granted.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citation omitted). A district court applies “the same standard of legal sufficiency that applies under Rule 12(b)(6)” to assess futility. Id.

*8 It would be futile for the Cerbones to amend their complaint again because they cannot assert state law claims against Simonik Transportation. Carmack will always preempt those claims because both Anthony and Carmella’s alleged injuries occurred simultaneous to the alleged damage to the motorcycle in the course of its transportation.

An appropriate Order follows.
BY THE COURT:
________________________ /s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

All Citations
Slip Copy, 2021 WL 1397011

Footnotes

1
The Amended Complaint does not say what entity made the final delivery.

2
Courts evaluating whether an entity acted as a broker or carrier in a particular transaction have contemplated the inquiry is sufficiently fact-intensive that in some cases it may even be inappropriate to determine at summary judgment. See, e.g., Essex, 885 F.3d at 1302; Ciotola v. Star Transp. & Trucking, LLC, 481 F. Supp. 3d 375, 392 (M.D. Pa. 2020); Alliance Shippers, 438 F. Supp. 3d at 332.

3
Exhibit C indicates the SIRVA Senior Claims Adjuster reviewed the Statement of Claim and provided a monetary settlement for certain damages to property resulting from the move. See (Mot. to Dismiss Ex. C, ECF 7-5). Absent any other facts regarding SIRVA’s involvement in the move or any context surrounding the email, however, Exhibit C alone is insufficient to establish SIRVA acted or held itself out as a carrier.

4
The Cerbones make much of the fact that the Motorcycle Condition Report documents damage to the motorcycle as having occurred before it was loaded on the moving truck, ostensibly to show that the motorcycle was not being transported at the time of the accident. See, e.g., (Resp. to Mot. to Dismiss 4–6.) The movers’ choice to document the motorcycle in this way, however, is not relevant to the legal question of whether Carmack applies. Carmack “transportation” is broadly defined to include “arranging for” the movement of property. 49 U.S.C. § 13102(23)(B). The Cerbones’ allegations show this is what was happening at the time of the accident.

2021 WL 1238284

United States District Court, D. Colorado.
MATTHEW CLEM, and JASON MOORE, Plaintiffs,
v.
RAYMOND SCHULTZ, an individual, HINZ TRUCKING, INC., ROGER C. ANDERSON, an individual, and RJA TRUCKING, LLC, Defendants.
Civil Action No. 19-cv-03570-REB-KLM Consolidated with Civil Action No. 20-cv-01157-REB-KLM
|
04/02/2021

ORDER
*1 This matter is before the Court on a discovery issued raised by the parties in the above case. In accordance with my discovery procedures, Defendant Hinz Trucking, Inc. (“Hinz”) orally moved for a Protective Order regarding several topics listed in Plaintiff’s Rule 30(b)(6) deposition notice of the Defendant (the “Motion”). The Court heard argument on the Motion on November 9, 2020 and directed the parties to provide further briefing. Courtroom Minutes [#82]1 at 2; see Plaintiff Jason Moore’s Memorandum of Law Regarding Notice of 30(b)(6) Deposition of Defendant Hinz Trucking, Inc. (“Plaintiff Moore’s Brief”) [#83]; Defendant Hinz Trucking, Inc. and Raymond Schultz’s Brief Regarding Fed. R. Civ. P. 30(b)(6) Discovery Dispute (“Defendant Hinz’s Brief”) [#84].2 For the reasons stated below, the Motion is GRANTED IN PART AND DENIED IN PART.

I. Background
This case is about a motor vehicle accident in which a tractor-trailer owned by Hinz and driven by Defendant Raymond L. Schultz (“Schultz”) rear-ended a pick-up truck in which Plaintiff, Jason Moore, was a passenger. Plaintiff’s Brief [#83] at 1. Plaintiff brought claims for negligence and negligence per se against Defendant Schultz, and a claim for respondeat superior against Hinz. Complaint [#1] at 8-13. Hinz admits vicarious liability for any negligence of Schultz, “who was acting in the course and scope of his employment at the time of the motor vehicle accident from which Plaintiffs’ claims arose.” Defendant’s Brief [#84] at 1.

Plaintiff Moore sought to take the Rule 30(b)(6) deposition of Hinz, which then objected to deposition topic numbers 1, 4, 5, 6, 9, 11a, 11b, 11c, 11d and 11k on the grounds of relevance. Defendant Hinz contends that the information sought by Plaintiff in those topics has no bearing on the sole disputed claims of negligence and negligence per se against Defendant Schultz. Defendant’s Brief [#84] at 1-10. Plaintiff asserts that the information sought in the topics at issue is relevant to “the existence of a duty of care and whether it was breached,” as well as “the question of foreseeability” of the accident. Plaintiff also asserts that the information sought may be relevant to whether spoliation of evidence occurred after the crash and “may also be relevant to the question of whether Defendant Schultz’s conduct was attended by circumstances of fraud, malice, or willful and wanton conduct,” so as to entitle Plaintiff to punitive damages. Plaintiff’s Brief [#83] at 5-8.

II. Analysis

A. Ferrer v. Okbamicael
*2 Both parties cite the Colorado Supreme Court’s decision in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017), to support their arguments regarding relevance of the disputed Rule 30(b)(6) deposition topics. In Ferrer, the Court addressed “whether an employer’s admission of vicarious liability for an employee’s negligence in response to a plaintiff’s complaint forecloses a plaintiff’s additional, direct negligence claims against the employer.” 390 P.3d at 839 (emphasis added). The Court answered the question in the affirmative, adopting a rule first articulated by the Missouri Supreme Court in McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). According to the Ferrer Court, “where an employer has conceded it is subject to respondeat superior liability for its employee’s negligence, direct negligence claims against the employer that are nonetheless still tethered to the employee’s negligence become redundant and wasteful.” 390 P.3d at 844. “ ‘If it is not disputed that the employee’s negligence is to be imputed to the employer, there is no need to prove that the employer is liable. Once the principal has admitted its liability under a respondeat superior theory…[a] cause of action for negligent entrustment is duplicative and unnecessary. To allow both causes of action to stand would allow a jury to assess or apportion a principal’s liability twice.’ ” Id. at 845 (citing Gant v. L.U. Transp., Inc., 770 N.E. 2d 1155, 1160 (Ill. 2002)). As a result of this reasoning, the Ferrer Court affirmed the trial court’s dismissal of the plaintiff’s direct negligence claims against the taxicab company employer, which had admitted that its employee, the taxi driver, was acting in the course and scope of his employment at the time when the accident occurred. 390 P.3d at 848.

Notably, the Ferrer majority opinion touches on discovery issues in only a tangential way. First, the Court noted that the trial court, after adopting the McHaffie rule and dismissing the plaintiff’s direct negligence claims against the employer, “simultaneously entered a protective order to preclude discovery regarding [the driver’s] hiring, supervision, retention and training.” 390 P. 3d at 840. The Court further noted that in the trial court, the plaintiff challenged the court’s orders only on the basis that “the McHaffie rule is inapplicable in a comparative fault jurisdiction such as Colorado.” Id. Importantly, the Supreme Court also explicitly stated that the plaintiff’s petition for relief under C.A.R. 21 did not address the protective order; instead, plaintiff challenged the “trial court’s orders granting Defendant’s motion for partial judgment on the pleadings and dismissing Ferrer’s direct negligence claims against Yellow Cab, denying Ferrer’s motion for leave to amend the complaint to add exemplary damages claims, and denying reconsideration of these rulings.” Id. at 841. If the Ferrer plaintiff challenged the trial court’s sua sponte protective order, the Colorado Supreme Court did not say so, nor did it address any such challenge.

As a result, it is not surprising that the Colorado Supreme Court’s decision contains no analysis of the propriety of the trial court’s entry of the protective order after dismissal of the direct negligence claim against the employer. Instead, the decision focuses on whether to allow “multiple theories for attaching liability to a single party for the negligence of another,” and, as mentioned above, concludes that allowing such multiple theories to proceed “ ‘serves no real purpose,’ unnecessarily expends the ‘energy and time of courts and litigants,’ and risks the introduction of potentially inflammatory, irrelevant evidence into the record.’ ” Id. at 843. The Court’s reference to the alleged “inflammatory, irrelevant evidence” focuses on “evidence supporting…multiple theories [of attaching liability to an employer for the employee’s conduct] where such evidence would serve only to establish that which is already undisputed: that the employer is liable for the plaintiff’s damages caused by the employee’s negligent acts.” Id. at 845 (emphasis added). The Court simply did not consider whether evidence which would serve to establish that which is disputed, i.e., whether the employee was negligent, is discoverable. The specific evidence discussed in the opinion includes evidence of the employee’s driving record and his prior convictions for traffic offenses, but the Court made no mention of evidence relating to employee training or supervision, for example. Id. Hence, although Ferrer unequivocally adopts the McHaffie rule precluding a direct negligence claim against an employer who admits vicarious liability for its employee’s negligence, the decision cannot be read to preclude discovery of evidence relevant to the remaining negligence claim against the employee, which is the question before this court.

*3 Second, in the context of addressing whether there should be an exception to the rule announced in Ferrer for claims for exemplary damages against the employer, the Court held that “such an exception is not logically consistent with the rule….Because any direct negligence claims against the employer are barred, there can be no freestanding claim against the employer on which to base exemplary damages.” 390 P.3d at 848. The Court further noted the “case management conundrum” that would be created by such an exception when an employer admits respondeat superior liability in response to the complaint and moves for judgment on the pleadings on the direct negligence claim against the employer before the plaintiff can seek to amend his complaint to add a claim for exemplary damages. “If a trial court grants the employer’s motion for judgment on the pleadings and dismisses the plaintiff’s direct negligence claims [against the employer] under the rule we adopt today, it makes no sense to require a trial court nonetheless to permit discovery on those direct negligence claims because the plaintiff may later seek to assert exemplary damages.” Id. (emphasis added). This discussion relates only to allowing discovery when the plaintiff nevertheless tries to assert a punitive damages claim against an employer where his direct negligence claims against the employer have been dismissed. Again, the Court expressed no opinion on the viability of discovery from the employer as it relates to a plaintiff’s remaining negligence claims against the employee.

B. The Parties’ Arguments Regarding Ferrer
Plaintiff asserts that the Ferrer decision “did not herald a sea-change in the law of discovery. Instead, it represented an admittedly significant course correction in the law of vicarious liability.” Plaintiff’s Brief [#83] at 2. Plaintiff states that the Ferrer decision acknowledges that “the plaintiff retains the burden of proving that the employee acted negligently,” and concludes that “the Colorado Supreme Court did not express an intent to limit the scope of discovery relevant to claims against employees for their own negligent conduct in its opinion in Ferrer.” Id. at 2-3.

Defendant, on the other hand, argues that because Ferrer explicitly bars a negligent training allegation against an employer in light of the employer’s admission of vicarious liability for an employee’s conduct, discovery about the way the employer conveyed statutory or regulatory requirements to the employee is prohibited, despite the survival of a negligence per se claim against the employee. Defendant’s Brief [#84] at 6. Defendant further asserts that “the Ferrer Court intended to limit the scope of discovery for claims against employers who admit vicarious liability.” Id. at 7.
The Ferrer Court limited the scope of discovery in trucking cases where the employer admits vicarious liability to prevent wasteful and unnecessary discovery. Discovery regarding driver history, driver qualifications, personnel files, training, policies and procedures is aimed solely at proving direct negligence claims against an employer. The Ferrer Court dismissed the direct claims and upheld a Protective Order barring discovery on the claims despite a request for punitive damages. The same standard applies to this case.
Id. at 8 (emphasis added).

First, as discussed above, this Court disagrees that the Ferrer court upheld the propriety of the trial court’s sua sponte protective order. Second, the Court disagrees that “discovery regarding driver history, driver qualifications, personnel files, training, policies and procedures is aimed solely at proving direct negligence claims against an employer.” For the reasons stated below, the Court holds that discovery to obtain evidence aimed at proving negligence claims against the employee is not precluded by Ferrer, even when that evidence is sought from the employer. Despite Ferrer’s conclusion prohibiting negligence claims against an employer which admits respondeat superior liability for its employee’s negligence, so long as the information sought in discovery relates to a plaintiff’s negligence claim against the employee, it is discoverable. Fed. R. Civ. P. 26(b)(1).

C. The Scope of Discovery on a Negligence Claim Against a Driver
Colorado courts have long recognized that in order to show that a driver was negligent, a party must show that the driver failed “to do an act which a reasonably careful person would do, or [did] an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from bodily injury.” Colorado Jury Instruction 9:6. As noted in the comments to the instruction, “when the parties to a negligence action are part of an industry that conforms to well-established safety practices or customs, those practices or customs may be considered by the jury as non-conclusive evidence of the standard of reasonable care that the defendant should have followed.” Id. at comment 9. Moreover, violation of a statute or ordinance constitutes negligence if it caused the claimed injuries. Colorado Jury Instruction 9:14.

*4 The test for negligence set forth in Colorado Jury Instruction 9:6, as explained in court decisions and other legal authorities, informs the scope of discovery in a motor vehicle accident case. Because the standard of care involves analysis of the allegedly negligent person’s conduct when compared to a reasonable person “under the same or similar circumstances,” discovery should encompass information about those circumstances, which may include the actor’s individual knowledge, training and experience. As explained in the Restatement (Second) of Torts:
When an act is negligent only if done without reasonable care, the care which the actor is required to exercise to avoid being negligent in the doing of an act is that which a reasonable man in his position, with his information and competence, would recognize as necessary to prevent the act from creating an unreasonable risk of harm to another.
Id. at § 298 (emphasis added). Moreover, the Restatement (Second) defines “want of competence” as follows:
An act may be negligent if it is done without the competence which a reasonable man in the position of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to another.
Id.at § 299 (emphasis added). Most significantly, comment (f) to Section 299 provides:
If the actor possesses special competence, he must exercise it, not only in his profession, trade or occupation, but also whenever a reasonable man in his position would realize that its exercise is necessary to the reasonable safety of others. The superior competence, as the result of aptitude developed by special training and experience, may even give to the actor special ability to perceive the existing facts, or special knowledge of other pertinent matters which, separately or together, may enable him to realize the necessity of using his highly competent technique which a person of lesser competence would not realize.3
Here, there is no dispute that Defendant Schultz was engaged in his occupation, driving a commercial vehicle, at the time of the allegedly negligent conduct. There can also be no reasonable dispute that commercial truck drivers possess special competence, as indicated by state licensing requirements, for example.4 Hence, the Court concludes that information relating to Defendant Schultz’s “competence,” which includes his “special training,” “experience” and “special knowledge,” is relevant to Plaintiff’s negligence claim against him.

D. Plaintiff’s Additional Arguments Regarding Relevance
*5 Finally, the Court briefly addresses Plaintiff’s contention that the information sought in the disputed deposition topics relates to potential spoliation or proof necessary to establish his claim for punitive damages. Plaintiff’s argument regarding spoliation is purely speculative and is therefore rejected. Allowing discovery based on the mere potential for spoliation without more would expand discovery beyond the bounds of all reasonableness, an outcome surely not contemplated by Fed. R. Civ. P. 26(b)(1).

Defendants do not address Plaintiff’s contention that the information requested could establish the liability of both Defendants for punitive damages by demonstrating whether Schultz acted willfully and wantonly. Plaintiff cites Fitzgerald v. Edelen, 623 P.2d. 418 (Colo. App. 1980), for the proposition that Hinz may be liable for punitive damages if it “authorized” Schultz’s conduct, if Schultz was unfit for employment, if Schultz was a manager or if Hinz “ratified or approved” his conduct. Plaintiff’s Brief [#83] at 8. In Fitzgerald, the Colorado Court of Appeals adopted section 217C of the Restatement (Second) of Agency, specifically holding that “punitive damages can properly be awarded against a master or other principal because of an act of an agent, but only if the agent was employed in a managerial capacity and was acting in the scope of employment.” Id. at 423. The Restatement section adopted by the Court further permits awards of punitive damages against an employer if it “authorized” the negligent act of the employee, if the employee was unfit and the employer was reckless in employing him, or if the employer “ratified or approved” the negligent act. Id. Discovery designed to elicit information on these topics is therefore relevant to a punitive damages claim against the employer. See, e.g., Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1152, 1174 (10th Cir. 1981) (discussing the elements required in Colorado for a principal to be held liable for exemplary damages for the act of an agent) (citing in part Restatement (Second) Agency § 217C); Appel v. Sentry Life Ins. Co., 701 P.2d 634, 638 (Colo. App. 1985) (discussing application of § 217C to issue of whether exemplary damages instructions was properly given to jury); Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6, 12-13 (Colo. App. 1986) (finding that the trial court correctly denied Defendant’s request to instruct the jury “that a negligent act or omission of an employee attended by circumstances of a wanton and reckless disregard of plaintiff’s rights and feelings is attributable to the corporation only if the corporation authorized or ratified the act or omission,” because this was an incorrect statement of the law) (citing in part Restatement (Second) Agency § 217C).

E. The Disputed Rule 30(b)(6) Deposition Topics

1. Topic No. 1
In Topic No. 1, Plaintiff seeks to examine Defendant Hinz about its “use and training regarding the Federal Motor Carrier Safety Regulations [FMCSR] at the time of” the accident, and all information about the regulations which was provided to Defendant Schultz. Defendant contends that the standards of care for negligence and negligence per se do not derive from the employer’s communications to its drivers but rather from the applicable statutes and/or regulations themselves. The Court is unconvinced. Evidence regarding Hinz’s training of Schultz on the Federal Motor Carrier Safety Regulations helps to prove his competence, which is relevant to Plaintiff’s negligence claim against him. Thus, to the extent that Topic No. 1 seeks general information from Hinz about its “use and training regarding the [FMCSR],” the Motion is granted. However, to the extent that Topic No. 1 is addressed to information and training provided to Defendant Schultz, the Motion is denied.

2. Topic No. 4
*6 In Topic No. 4, Plaintiff seeks information about “the hiring, retention and/or selection process for any driver of a tractor owned or operated by [Defendant Hinz].” This information is not relevant to a negligence claim against Defendant Schultz, but as explained above, to the extent that Plaintiff seeks information about the hiring and retention of Schultz himself, it properly seeks information that is related to a claim for punitive damages against Hinz. Accordingly, the Motion is denied solely as to information about the hiring and retention of Defendant Schultz, and is otherwise granted.

3. Topic No. 5
In Topic No. 5, Plaintiff seeks information about “the orientation and training” provided by Hinz to all drivers, as well as to Schultz. As set forth above, this information is only relevant to the negligence claim against Schultz to the extent that it informs his level of competence and experience. Hence, the Motion is granted to the extent that Topic No. 5 seeks information about training and orientation of any other Hinz employee besides Defendant Schultz (i.e., Topics 5a, 5c). Also, information regarding “the extent to which Hinz Trucking undertook the responsibility to train Schultz in the safe operation of the truck” or “to ensure Schultz was otherwise qualified to perform the safe operation of the truck” is not relevant in light of the admission of respondeat superior liability by Hinz, but Hinz’s “actions taken in furtherance of” training Schultz is discoverable information. Hence, the Motion is denied as to Topic 5b and the portions of Topics 5d and 5e that relate solely to Hinz’s “actions taken in furtherance of” training Schultz to safely operate the truck. It is otherwise granted as to Topics 5d and 5e.

4. Topic No. 6
Topic No. 6 seeks information regarding “safety measures and safety programs in place for Hinz Trucking regarding its drivers, its tractor trailers and the motoring public at the time of the [accident].” This topic is not specifically addressed to Defendant Schultz, and to the extent that it might be, it is duplicative of Topic No. 5. Accordingly, the Motion is granted as to Topic No. 6.

5. Topic No. 9
Topic No. 9 seeks information about “requirements of Hinz Trucking drivers” regarding compliance with applicable laws and regulations, when performing their job duties and when involved in an accident. This information is only relevant to the extent that it informs Defendant Schultz’s competence as a driver. Hence, the Motion is granted to the extent that it relates to any driver other than Defendant Schultz, and is otherwise denied.

6. Topic No. 11
The portions of Topic No. 11 which are in dispute (11a, 11b, 11c, 11 d and 11k) seek information regarding Hinz Trucking’s relationship with Defendant Schultz, including his hiring date, his employment status, any contracts the company has with him, the hiring criteria used by Hinz to select him, the basis for Hinz’s belief that he was qualified to operate a commercial truck, Hinz’s orientation and training of Schultz, and Hinz’s efforts to audit Schultz’s log books and monitor his driving hours for certain time periods. The portion of this Topic which relates to Schultz’s status as a manager or employee of Hinz is relevant to a punitive damages claim, as explained above. The only portion of these disputed topics which arguably informs Schultz’s competence as a driver is his orientation and training, which is covered by Topic 5b and addressed above. Accordingly, the Motion is granted as to Topics 11b, 11c and 11k and denied as to Topics 11a (insofar as it seeks information about Schultz’s employment status as a manager or employee of Hinz) and 11d.

III. Conclusion
*7 For the reasons set forth above, the Motion is granted in part and denied in part, as further explained above.

Dated: April 2, 2021
All Citations
Slip Copy, 2021 WL 1238284

Footnotes

1
“[#82]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court’s case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.

2
The issuance of this Order was delayed in part because the Court allowed briefing on the same issue in another case, Collins v. Westin DIA Operator, 20-cv-1088-WJM-KLM. A hearing was held in that case on December 23, 2020 and briefing was completed on January 4, 2021. The case was subsequently dismissed.

3
In S.W. ex rel Wacker v. Towers Boat Club, Inc., 318 P.3d 38, 42 (Colo. App. 2012), the Colorado Court of Appeals held that a trespass is required in order for the attractive nuisance doctrine to apply. The Wacker plaintiffs cited three authorities: the Restatement (Second) of Torts §§ 299 and 343B and 62 Am. Jur. 2d Premises Liability § 299. The decision states: “The sections of the Restatement cited by Plaintiffs do not reflect Colorado law and have not been adopted by Colorado courts, and thus are not binding here.” However, the Wacker decision does not further address Restatement (Second) of Torts § 299, does not discuss whether the section should be adopted by the Colorado courts, and does not involve or address lack of competence of a negligent actor. Moreover, the Colorado courts have long held that professionals with specialized knowledge or skill are required “to exercise reasonable care in a manner consistent with the knowledge and ability possessed by members of the profession in good standing,” a holding which appears to implicitly adopt the reasoning of Restatement (Second) of Torts § 299. United Blood Servs., a Div. of Blood Sys., Inc. v. Quintana, 827 P.2d 509, 519 (Colo. 1992) (internal citation and quotation marks omitted). The Court can think of no reason to differentiate between professionals with specialized knowledge or abilities and non-professionals with specialized knowledge or abilities; competence is an issue in determining whether any actor with specialized knowledge or abilities behaved reasonably or not. Thus, the Court finds Wacker unpersuasive.

4
See, e.g., Colo. Rev. Stat. § 42–2–403(1) (stating in part: “The department shall develop, adopt, and administer a procedure for licensing drivers of commercial motor vehicles in accordance with applicable federal law governing commercial motor vehicle safety and any rules promulgated thereunder.”); Colo. Rev. Stat. § 42–2–403(2) (stating in part: “Such rules and regulations shall govern all aspects of licensing commercial drivers, including, but not limited to, testing procedures, license issuance procedures, out-of-service regulations, denial procedures, including suspensions, revocations, cancellations and denials, records maintenance, reporting requirements, and cooperation with the commercial driver’s license information system.”).