2021 WL 2213315
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOT DESIGNATED FOR PUBLICATION
Court of Appeal of Louisiana, First Circuit.
RONNIE E. JARVIS
V.
FOREMOST EXPRESS INSURANCE AGENCY, INC., MARCELLES A. TAYLOR, FELTON KEYES, JR., KENT & SMITH HOLDINGS, LLC, AND AMC INSURANCE COMPANY
2020 CA 0886
|
Judgment Rendered: MAY 27, 2021
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 669,602
The Honorable Janice Clark, Judge Presiding
Attorneys and Law Firms
Mark D. Plaisance, Marcus J. Plaisance, Prairieville, Louisiana, Scott M. Mansfield, Kelly R. Dick, Jr., Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Ronnie E. Jarvis
Jack E. Truitt, Lou Anne Milliman, Michelle Mayne Davis, Nancy N. Butcher, Lauren A. Duncan, Covington, Louisiana, Attorneys for Defendant/Appellee Foremost Insurance Company Grand Rapids, Michigan
BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.
Opinion

PENZATO, J.

*1 Appellant, Ronnie E. Jarvis, appeals a judgment granting summary judgment in favor of Foremost Insurance Company Grand Rapids, Michigan (Foremost)1 and dismissing his claims with prejudice. For the reasons that follow, we reverse the trial court’s judgment and remand the matter to the trial court.

FACTS AND PROCEDURAL HISTORY
On November 1, 2017, Mr. Jarvis was driving in a westerly direction on I-10 in Ascension Parish, when an 18-wheeler rear-ended him. The tractor-trailer was being driven by Felton Keyes, Jr. The Peterbilt tractor was owned by Marcelles A. Taylor and was alleged to be insured by Foremost pursuant to a policy of liability coverage. The trailer was a dump trailer owned by Kent & Smith Holdings, LLC, (Kent & Smith), alleged to be insured by Zurich American Insurance Company (Zurich). Mr. Jarvis filed suit against Foremost, Mr. Taylor, Mr. Keyes, Kent & Smith, and Zurich. Foremost answered the petition, pleading the affirmative defense of lack of insurance coverage and asserting that the policy issued to its insured was cancelled on September 5, 2017, for non-payment of premium. Foremost filed a motion for summary judgment, asserting that the commercial insurance policy had been issued to M. Taylor Trucking, LLC, and was cancelled for nonpayment of premium prior to the accident.2 After Foremost filed its motion for summary judgment with attachments in support of same, Mr. Jarvis added M. Taylor Trucking, LLC, as a defendant in his second supplemental and amending petition, alleging that M. Taylor Trucking, LLC, also owned the Peterbilt tractor. Foremost reasserted its denial of insurance coverage in its answer to the second supplemental and amending petition. After a hearing on Foremost’s motion for summary judgment, the trial court signed an amended judgment on June 18, 2020, granting the summary judgment in favor of Foremost and dismissing all of Mr. Jarvis’s claims against Foremost with prejudice.3 It is from this judgment that Mr. Jarvis appeals, claiming that the trial court erred in determining that the cancellation notice relied upon by Foremost is legally sufficient pursuant to La. R.S. 22:1266.

LAW AND DISCUSSION
*2 Appellate courts review the grant or denial of a motion for summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Jackson v. Wise, 2017-1062 (La. App. 1st Cir. 4/13/18), 249 So. 3d 845, 850, writ denied, 2018-0785 (La. 9/21/18), 252 So. 3d 914. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C. art. 966(A)(3); Campbell v. Dolgencorp, LLC, 2019-0036 (La. App. 1st Cir. 1/9/20), 294 So. 3d 522, 526. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Bass v. Disa Global Solutions, Inc., 2019-1145 (La. App. 1st Cir. 6/12/20), 305 So. 3d 903, 906-07, writ denied, 2020-01025 (La. 11/4/20), 303 So. 3d 651.

Summary judgment is appropriate for determining issues relating to insurance coverage. Bosse v. Access Home Insurance Co., 2018-0482 (La. App. 1st Cir. 12/17/18), 267 So. 3d 1142, 1145. On a motion for summary judgment, if the issue before the court is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. See La. C.C.P. art. 966(D)(1); Rider v. Ambeau, 2011-0532 (La. App. 1st Cir. 2/1/12), 100 So. 3d 849, 854. An insurer seeking to avoid coverage through summary judgment must prove some provision or exclusion applies to preclude coverage. Halphen v. Borja, 2006-1465 (La. App. 1st Cir. 5/4/07), 961 So. 2d 1201, 1204, writ denied, 2007-1198 (La. 9/21/07), 964 So. 2d 338. It is well settled that where an insurer defends a claim on the ground that the policy has been cancelled, the insurer bears the burden of establishing facts that will relieve it of liability. Wiley v. Cornerstone National Ins. Co., 2012-0909 (La. App. 1st Cir. 4/25/13), 2013 WL 179512, at *2 (unpublished). The insurer must show facts constituting positive and unambiguous proof of understanding of cancellation of the policy. Wiley, 2013 WL 179512, at *2. Thus, in this case, the burden of proof on the motion for summary judgment remained with the insurer herein.

The insurer, Foremost, attached to its motion for summary judgment the petition; the answer; an affidavit of Paulette Terhune, an employee of Foremost; a Specialty Contractor’s Policy issued to M. Taylor Trucking, LLC, bearing policy number SCP 08081715 for the policy period June 5, 2017 to June 5, 2018; several endorsements to the policy; a Notice of Cancellation of Insurance for Nonpayment of Premium dated August 18, 2017; and a notice to an additional insured of cancellation dated September 20, 2017. Mr. Jarvis opposed the motion for summary judgment. The only document attached to the opposition to the motion for summary judgment is an affidavit dated December 29, 2018, of Jacob James Sarver, a private process server, who attested that he had made several attempts to serve Mr. Taylor and was still attempting to do so. Mr. Jarvis argued in opposition to the motion for summary judgment that the notice of cancellation upon which Foremost relies does not comply with the requirements for cancellation as set forth in La. R.S. 22:1266.4

The affidavit of Ms. Terhune and attachments thereto establish that Foremost issued a commercial insurance policy bearing policy number SCP08081715 to the named insured, M. Taylor Trucking, LLC, and provided coverage to several vehicles, including the 2000 Peterbilt tractor involved in the accident herein. The policy was effective from June 5, 2017 to June 5, 2018. On June 6, 2017, M. Taylor Trucking, LLC, notified Foremost of a change of address to 10629 Hwy. 18, Saint James, Louisiana, 70086 (Saint James address). On August 14, 2017, M. Taylor Trucking, LLC, notified Foremost that KNS Logistics (KNS) would be added as an additional named insured and that the address for KNS was 1555 Beauli Rd., Gonzales, Louisiana, 70737. All of these endorsement changes to the policy were sent by Foremost to the Saint James address.

*3 On August 18, 2017, Foremost mailed M. Taylor Trucking, LLC, a notice of cancellation to the Saint James address. The notice of cancellation provided that the policy of insurance would be cancelled effective September 5, 2017, if the past amount due was not paid by that date. The notice of cancellation specifically provided, in pertinent part:
Notice of Cancellation for Nonpayment of Premium
* * *
Our records reflect that we have not received payment for the amount due on the insurance policy(ies) listed below. Accordingly, all of the policy(ies) will be cancelled as of the Cancellation Effective Date shown below. The cancellation will take effect at 12:01 AM local time at your mailing address shown above. If we receive sufficient payment by that date and time, the insurance coverage(s) will continue without interruption.
Note: This is the only notice you will receive.
(Emphasis added). The notice lists a “Cancellation Effective Date” of September 5, 2017, and states, “To maintain coverage beyond the Cancellation Effective Date, please pay …. ” T h e Notice also contains a payment stub with a past due amount, a current amount due, and a total amount due, all of which are redacted.

Foremost did not receive the past due amount by September 5, 2017, or anytime thereafter. Foremost subsequently notified KNS that the policy, under which it had been named as an additional insured, had been cancelled. Foremost contends that the policy was cancelled effective September 5, 2017, for nonpayment of premium, and that it did not provide coverage for the accident which occurred on November 1, 2017.

Foremost asserts that it cancelled the policy due to nonpayment of premium, and even notified KNS of the cancellation, although it was not required by statute or the policy to notify the additional named insured. Jarvis maintains that the notice sent by Foremost is legally insufficient to constitute proper notice of cancellation. As do both parties, we recognize that La. R.S. 22:1266 applies to the cancellation of consumer automobile policies, and that the jurisprudence is limited to the interpretation of La. R.S. 22:1266. Louisiana Revised Statutes 22:1266(A) provides:
(6) “Nonpayment of premium” means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.
Insurers are permitted to cancel a policy for nonpayment of premium. La. R.S. 22:1266(B)(1)(a). The manner to effect the cancellation is provided in La. R.S. 22:1266(D)(1), which states in pertinent part, “when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason shall be given.” Commercial policies are governed by La. R.S. 22:1267. “Nonpayment of premium” is defined as “the failure or inability of the named insured to discharge any obligation in connection with the payment of premiums on a policy of insurance subject to this regulation, whether such payments are payable directly to the insurer or its producer or indirectly payable under a premium finance plan or extension of credit.” La. R.S. 22:1267(B)(3). In order to effectuate a cancellation, the insurer must comply with La. R.S. 22:1267(C)(2)(a), which provides:
*4 A notice of cancellation of insurance coverage by an insurer shall be in writing and shall be mailed or delivered to the first-named insured at the mailing address as shown on the policy. Notices of cancellation based on R.S. 22:1267(C)(1 )(b) through (g) shall be mailed or delivered at least thirty days prior to the effective date of the cancellati on ; notices of cancellations based upon R.S. 22:1267(C)(1)(a) shall be mailed or delivered at least ten days prior to the effective date of cancellation. The notice shall state the effective date of the cancellation.
Because we find no significant difference in the substance of these two statutes and due to the absence of jurisprudence concerning La. R.S. 22:1267, we will rely on the jurisprudence interpreting La. R.S. 22:1266.

Mr. Jarvis argues that the purported cancellation by Foremost is legally insufficient since it merely informs the insured that unless premiums due were paid, the policy would be cancelled, rather than clearly and unequivocally showing a “present cancellation” as required by Ellzey v. Hardware Mutual Insurance Company of Minnesota, 40 So. 2d 24, 28 (La. App. 1st Cir. 1949). (Appellant Brief at p. 5).

This court in Ellzey determined that a notice of cancellation that states the policy “will be cancelled” as of a certain date is insufficient to cancel the policy. The court stated that the notice must clearly and unequivocally show a present cancellation, not just be a demand for payment. Ellzey, 40 So. 2d at 28. In contrast, Alexander v. State Farm Mutual Automobile Ins. Co., 148 So. 2d 898, 902 (La. App. 1st Cir. 1962) (on rehearing) (emphasis added), determined that a notice that stated “this policy is cancelled, effective on …” was a legally sufficient notice of cancellation. The court found such language to be clear, unequivocal, and unambiguous. Alexander, 148 So. 2d at 902. Alexander distinguished Ellzey, which was based on the policy language and not La. R.S. 22:636 (the applicable cancellation statute at the time).

Following Ellzey and Alexander, the First Circuit continued to interpret the statutory law to require a clear, unequivocal, and unambiguous notice of cancellation. In Travelers Ins. Co. v. Jenkins, 285 So. 2d 839, 842 (La. App. 1st Cir. 1973), after accepting late payments and reinstating the policy several times, the insurer returned a check to the insured due to insufficient funds and informed the insured it “will continue coverage … in order that you may have an opportunity to submit a replacement payment to us.” The notice further stated, “If we have not received the replacement payment within the time mentioned above, the policy will be cancelled effective that date.” Jenkins, 285 So. 2d at 842 (emphasis added). The court explained that “will be cancelled” is different from “is cancelled”, “is hereby cancelled”, or “stands cancelled.” Jenkins, 285 So. 2d at 844 (emphasis added). The court in Jenkins held that merely informing the insured that unless the premiums were paid the policy would be cancelled amounts to a demand for payment of premiums rather than a notice of cancellation. Jenkins, 285 So. 2d at 844.

In addition to Alexander, other First Circuit cases interpreting notices of cancellation have stated that the language “is hereby cancelled” or “is being cancelled” is sufficient notice to cancel a policy. Chapman v. Leger, 405 So. 2d 604, 606-07 (La. App. 1st Cir. 1981), distinguished both Ellzey and Alexander finding that those cases “indicated that the insured might avoid cancellation by responding to the invitation to remit the premium payment.” The notice at issue in Chapman stated the policy “is hereby cancelled.” Winbush v. Polk, 97-1967 (La. App. 1st Cir. 6/29/98), 713 So. 2d 1262, 1264, involved a notice of cancellation, which at the time was governed by La. R.S. 22:636.1(D)(1).5 The notice stated, “Cancellation to take effect at It also stated, “Your policy is being cancelled for non-payment of premium.” Winbush, 713 So. 2d at 1264 (emphasis added). The court noted that a cancellation notice must be unequivocal, and the determination of the sufficiency and effectiveness of a cancellation notice depends upon the language of that particular cancellation notice. Winbush, 713 So. 2d at 1264.

*5 Unlike the notices of cancellation at issue in Alexander, Chapman, and Winbush, the notice sent by Foremost stated that the policy “will be cancelled.” (Emphasis added). The First Circuit has continuously interpreted “will be cancelled” language in a notice of cancellation to be insufficient to comply with the statutory law. State Farm Mutual Automobile Ins. Co. v. Villneuve, 1998-2421 (La. App. 1st Cir. 12/28/99), 747 So. 2d 777, writ denied, 2000-0273 (La. 3/24/00), 758 So. 2d 156, involved a notice of cancellation entitled, “CANCELLATION NOTICE IF NOT PAID.” It also stated, “YOUR POLICY WILL BE CANCELLED FOR NON-PAYMENT OF PREMIUM AT … IF YOUR PREMIUM IS NOT PAID BY THE DUE DATE.” Villneuve, 747 So. 2d at 778 (emphasis added). The court recognized that the unpaid balance on the notice was zero, and on the date mailed, the premium was not yet due. The court stated, “A notice of intent to cancel if the premium is not paid is not the same as a notice of cancellation for nonpayment of premium under [La.] R.S. 22:636.1.” Villneuve, 747 So. 2d at 780. The court also held “[a] notice of intent to cancel is nothing more than a demand for payment, whereas a notice of cancellation positively puts an insured on notice that the policy will be cancelled.” Villneuve, 747 So. 2d at 780 (citing Dairyland Insurance Company v. Marks, 468 So. 2d 841, 843 (La. App. 1st Cir. 1985), a case involving a premium finance company governed by La. R.S. 9:3550(G)). The Villneuve court determined that the notice of cancellation lacked the unequivocal cancellation language that was present in Folds v. Protective Casualty Ins. Co., 26,323 (La. App. 2nd Cir. 12/7/94), 647 So. 2d 1215, and was more similar to the equivocal language in Dairyland. Villneuve, 747 So. 2d at 780. The Villneuve court also found that the cancellation notice at issue was a demand for payment, specifying that the policy would be cancelled if the premium was not paid and that no outstanding premium was due at the time the notice was mailed. Villneuve, 747 So. 2d at 780. Villneuve relied on the language of Jenkins that “will be cancelled” is different from “is cancelled”, “is hereby cancelled”, or “stands cancelled” to find that the notice of cancellation was insufficient. Villneuve, 747 So. 2d at 781 (emphasis added).

In Wiley, a more recent decision, another panel of this court discussed many of the above cited First Circuit cases in reversing a summary judgment granted to Cornerstone National Insurance Company, finding a notice of cancellation to be legally insufficient. The notice of cancellation was entitled, “Notice of Intent to Cancel for Non-Payment of Premium” and had a specific cancellation date. The notice also stated, “your policy is cancelled or terminated on the date and time indicated, for … Non Payment of Premium[.]” Wiley, 2013 WL 1792512, at *1 (some emphasis added). This court relied on La. R.S. 22:1266 and the jurisprudence outlined in Jenkins, Villneuve, and Ellzey to reverse the summary judgment. This court recognized that the language of the notice of cancellation stated “is cancelled”, but determined that under the circumstances, that the notice, combined with a premium invoice and conditioned on the nonpayment of the premium by the due date, constituted a demand for payment rather than an unequivocal notice of cancellation. Wiley, 2013 WL 1792512, at *4. This court declined to follow the case of Narcisse v. Evans, 2001-1092 (La. App. 4th Cir. 1/16/02), 807 So. 2d 339, which held that a notice by Cornerstone similar to the one at issue constituted an effective cancellation. Wiley, 2013 WL 1792512, at *3.

The notice of cancellation issued by Foremost contains the language “will be cancelled.” (Emphasis added). The notice of cancellation is also a demand for payment as it contains language that if sufficient payment is received the insurance coverage will continue and additional language stating that to maintain coverage beyond the cancellation effective date the insured must pay the amount past due. Foremost has provided no First Circuit decision that has interpreted a similar notice to be a clear, unequivocal, and unambiguous notice of cancellation. Pursuant to the jurisprudence of this circuit, the notice is legally insufficient to have cancelled the policy.

Foremost argues that commercial policies governed by La. R.S. 22:1267 are distinguishable from consumer policies governed by La. R.S. 22:1266. As we stated above, we do not find the language in the two statutes to be so dissimilar that the jurisprudence interpreting La. R.S. 22:1266 is not applicable. Foremost relies on Hodges v. Colonial Lloyd’s Ins., 546 So. 2d 898 (La. App. 1st Cir. 1989), to assert that “will be cancelled” language was sufficient notice in a commercial automobile policy to cancel the policy. Hodges involved a premium finance company, which is governed by La. R.S. 9:3550(G) that sets forth the conditions for a premium finance company to cancel a policy of insurance for nonpayment of premium. Furthermore, in Hodges, although a first notice did state the policy “WILL BE CANCELLED” if the premium was not paid, a second notice was sent stating that the “POLICY HAS BEEN TERMINATED.” Hodges, 546 So. 2d at 903. We do not find that Hodges stands for the proposition asserted by Foremost—that the “will be cancelled” language is only insufficient for consumer policies, not commercial ones.

*6 Foremost also asserts that the present case is distinguishable from the Villneuve decision, because an outstanding balance was due in the present case at the time the notice of cancellation was issued, unlike the factual scenario of Villneuve. Although Foremost argues that a balance was due, the notice in the record before us is void of any information concerning the past, current, and total amounts due, as these are redacted. Therefore, it is impossible to determine whether there was actually any amount past due, and we are unable to distinguish Villneuve from the present facts based on the record. Also, in Wiley, this court found no effective cancellation even though the insurer used the phrase “is cancelled” in the notice of cancellation when the notice was attached to a premium due notice. Wiley, 2013 WL 1792512, at *4.

Foremost further urges this court to follow the interpretation of other circuits that have determined that the language “will be cancelled” in a notice of cancellation is legally sufficient to cancel a policy. We recognize that other circuits have found similar language to be sufficient to effect cancellation.6 However, we are constrained to follow existing First Circuit jurisprudence. See Pontchartrain Natural Gas System v. Texas Brine Co., LLC, 2018-0001 (La. App. 1st Cir. 6/4/18), 253 So. 3d 156, writ denied, 2018-1124 (La. 9/28/18), 253 So. 3d 147 (recognizing this court is bound by the “law of the circuit” doctrine to follow prior decisions); see also Internal Rules of Court, First Circuit Court of Appeal, Rule 2.1(d)(1); H.J. Bergeron, Inc. v. Parker, 2006-1855 (La. App. 1st Cir. 6/8/07), 964 So. 2d 1075, 1076 n.2. Following a de novo review of this matter, we find that Foremost has not carried its burden that its notice of cancellation was clear, unequivocal, and unambiguous so as to entitle it to summary judgment as a matter of law.

CONCLUSION
For the reasons set forth above, the June 18, 2020 judgment of the trial court granting the motion for summary judgment in favor of Foremost Insurance Company Grand Rapids, Michigan is reversed. This matter is remanded to the trial court for further proceedings consistent herewith. All costs of this appeal are assessed against Foremost Insurance Company Grand Rapids, Michigan.

REVERSED AND REMANDED.

Holdridge J. concurs w/ reasons
McDonald, J. concurs and assigns reasons.

McDonald, J. concurs:

I believe the majority opinion is correct only because of the years of misinterpretation of the English language that goes all the way back to 1949 with the decision in Ellzey. I believe the terms “will be cancelled,” “is cancelled,” or “stands cancelled” have the same meaning when followed by a date and time certain. As such this language unequivocally conveys to the insured a notice of cancellation. This language provided a clear, express statement that the policy is being cancelled on that date and time. I believe the analysis in the decisions by other courts is better than that following Ellzey.

In Narcisse v. Evans, 2001-1092 (La. App. 4th Cir. 1/16/02), 807 So. 2d 339, 344, the court stated:
We conclude that the notice sent to Evans by Clarendon was an unambiguous and unequivocal notice of cancellation. Evans was clearly put on notice that his coverage would terminate at 12:01 a.m. on July 30, 1995, if his payment was not received or postmarked prior to that date. The notice was in compliance with La. R.S. 22:636.1(D).
*7 The language at issue in Narcisse was as follows:
NOTICE OF INTENT TO CANCEL FOR NON-PAYMENT OF PREMIUM
* * THIS IS THE ONLY NOTICE YOU WILL RECEIVE * *
You are hereby notified in accordance with the terms and conditions of the above-mentioned policy that your insurance will be cancelled at 12:01 am Standard Time on 7/30/95 if premium due is not postmarked prior to the cancellation date.

I am more persuaded by this decision of the Fourth Circuit, and those cases cited in footnote 61 by the majority in the present case, than by the prior decisions of the First Circuit. For these reasons I respectfully concur.

HOLDRIDGE, J., concurring.

I agree that the trial court’s granting of the summary judgment should be reversed because Foremost did not meet its burden of establishing that it was entitled to summary judgment as a matter of law. La. C.C.P. art. 966A(3). The mover acknowledges that First Circuit jurisprudence does not recognize the language in Foremost’s cancellation notice to be sufficient. While other circuits may reach a different result, the mover did not meet the standard required under La. C.C.P. art. 966 to prove that it was entitled to judgment as a matter of law in this circuit.

All Citations
Not Reported in So. Rptr., 2021 WL 2213315, 2020-0886 (La.App. 1 Cir. 5/27/21)

Footnotes

1
Foremost was incorrectly named as Foremost Express Insurance Agency, Inc., in the petition for damages. Foremost filed an answer delineating its correct name, and Mr. Jarvis filed a first supplemental and amending petition to replace every reference to the incorrect name with Foremost Insurance Company Grand Rapids, Michigan.

2
Kent & Smith and Zurich filed their own motion for summary judgment, which was heard at the same time as Foremost’s motion for summary judgment. The trial court denied the motion for summary judgment filed by Kent & Smith and Zurich. The ruling is not at issue in the instant appeal.

3
The trial court had previously signed a judgment dated November 19, 2019. However, prior to an order of appeal being granted, the parties determined that the judgment was not a final judgment, and the trial court signed an amended judgment.

4
As will be addressed subsequently herein, La. R.S. 22:1267, regarding commercial policies, actually applies to the facts of the present case.

5
Louisiana Revised Statutes 22:636.1 was renumbered La. R.S. 22:1266 by 2008 La. Acts, No. 415, § 1, effective January 1, 2009.

6
See Lewis v. Coleman, 48,173 (La. App. 2nd Cir. 6/26/13), 118 So. 3d 492, 499-502, writ denied, 2013-1993 (La. 11/15/13), 125 So. 3d 1108; Narcisse, 807 So. 2d at 344; Hunter v. Automotive Casualty Ins. Co., 606 So. 2d 571, 572 (La. App. 5th Cir.), writ denied, 609 So. 2d 225 (La. 1992); and Hemperly v. Aetna Casualty & Surety Co., 516 So. 2d 1202, 1206 (La. App. 2nd Cir. 1987).

1
See Lewis v. Coleman, 48, 173 (La. App. 2nd Cir. 6/26/13), 118 So. 3d 492, 499-502, writ denied, 2013-1993 (La. 11/15/13), 125 So.3d 1108; Hunter v. Automotive Casualty Ins. Co., 606 So. 2d 571, 572 (La. App. 5th Cir.), writ denied, 609 So. 2d 225 (La. 1992); and Hemperly v. Aetna Casualty & Surety Co., 516 So. 2d 1202, 1206 (La. App. 2nd Cir. 1987).

2021 WL 2460612

United States District Court, W.D. Kentucky.
JESSE MURRAH PLAINTIFF
v.
TDY INDUSTRIES, LLC DEFENDANT
NO. 3:18-CV-217-CRS
|
Filed 06/16/2021

MEMORANDUM OPINION
Charles R. Simpson III, Senior Judge United States District Court
*1 This matter is before the Court on Defendant TDY Industries, LLC’s (“TDY’s”) motion for summary judgment under Federal Rule of Civil Procedure 56. DN 73. Plaintiff Jesse Murrah (“Murrah”) filed a response, DN 74, and Defendant replied. DN 76. This matter is now ripe for adjudication. For the following reasons, Defendant’s motion will be granted by separate order.

I. BACKGROUND
This case arises from a single-vehicle accident in which a tractor trailer driven by Plaintiff overturned while rounding a curved interstate ramp in Louisville, Kentucky on February 23, 2017. DN 74 at 1; DN 73-1 at 1. Plaintiff was hauling eleven metal containers of steel wingnuts, which were manufactured and packaged by Defendant, weighing a total of 32,758 pounds and each container measuring about three feet by four feet at the base and standing approximately three feet tall. DN 74 at 1; DN 73-7 at 3. Murrah had picked up the cargo at Defendant’s facility in Lebanon, Kentucky and was in the process of transporting it to Pontiac, Michigan at the time of the accident. DN 73-1 at 1. In accordance with Defendant’s loading procedures, the materials were loaded onto Murrah’s trailer by an employee of TDY without any assistance from Plaintiff. DN 76-2 at 3; DN 73-3 at 4. Plaintiff states that he “observed the the [sic] materials were placed from front to back, but were centered in the middle of the tractor trailer, instead of being distributed from left to right.” DN 76-2 at 3. The containers were not secured in any way by Defendant. DN 73-5 at 3. Murrah’s inspection of the load occurred “from the ground, looking into the bed of the trailer.” DN 74. In the complaint and in discovery responses, Plaintiff attests that he was concerned about how the materials were loaded. DN 1-2 ¶ 9; 76-2 at 3. However, in his response, Plaintiff states that “there was nothing particularly unusual about the load.” DN 74 at 7–8. Plaintiff did not discuss any concerns about the load to TDY’s employees or request any load adjustments. DN 73-1 at 6.

At the time in question, Plaintiff was an independent contractor driving commercial tractor trailers for the carrier C.W. Express, LLC. DN 73-1 at 1. A brokerage agreement that both parties agree applies to the events in this case states that “[u]nless access is prohibited, Carrier assumes all responsibility for the placement, securement and transportation of commodities being shipped and for training its drivers to insure that the placement, securement and transportation of commodities is performed in compliance with all federal, state and local laws and regulations.” DN 73-4 at 3. In addition, it states that “Shipper agrees that Carrier has the right to request any load adjustments.” Id.

Murrah brought this action in Kentucky state court on December 1, 2017, alleging that TDY was negligent in loading the materials onto Plaintiff’s trailer. DN 1-2. Plaintiff alleges that Defendant’s negligent loading caused the materials to shift while rounding the interstate ramp, which caused the trailer and, consequently, the truck to which it was attached to overturn. Id. at ¶ 12. The complaint seeks compensatory as well as punitive damages. Defendant removed the case to federal court on April 9, 2018 on grounds of diversity jurisdiction. DN 1-1. After completion of discovery, Defendant filed the present motion for summary judgment. DN 73.

II. LEGAL STANDARD
*2 A party moving for summary judgment must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Such an absence may be shown “by demonstrating that the nonmoving party lacks evidence to support an essential element of its case.” Ford v. GMC, 305 F.3d 545, 551 (6th Cir. 2002). “In response, the nonmoving party must present ‘significant probative evidence’ to show that ‘there is [more than] some metaphysical doubt as to the material facts.’ ” Id. (quoting Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir. 1993) (alteration in the original)). A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). Additionally, the Court must draw all factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. ANALYSIS
For a negligence claim to succeed under Kentucky law, a plaintiff must prove “(1) the defendant owed the plaintiff a duty of care, (2) the defendant breached the standard by which his or her duty is measured, and (3) consequent injury.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). Defendant argues that it is entitled to summary judgment because it owed no duty of care to Plaintiff to ensure the safety of the load. DN 73-1 at 7. Whether a duty exists is a question of law to be determined by the court. Pathways, Inc., 412 S.W.2d. at 89. Defendant claims that federal regulations and case law “expressly place the responsibility squarely upon Plaintiff, as the driver for the Carrier, to ensure proper placement and securement of the load prior to transport.” DN 73-1 at 7–8. Therefore, Defendant argues, “[p]laintiff’s duties supersede any allegations of negligence on the part of TDY.” Id. at 8.

Defendant points to certain regulations promulgated under the Federal Motor Carrier Safety Act (“FMCSA”). These regulations apply to carriers and not shippers. 49 C.F.R. § 390.3(a) (applying to “all employers, employees and commercial vehicles, which transport property or passengers in interstate commerce”). They provide that “[a] driver may not operate a commercial motor vehicle … unless … [t]he commercial motor vehicle’s cargo is properly distributed and adequately secured” in accordance with the technical specifications of the chapter. 49 C.F.R. § 392.9(a). Specifically, “[c]argo must be contained, immobilized or secured … to prevent shifting upon or within the vehicle to such an extent that the vehicle’s stability or maneuverability is adversely affected.” 49 C.F.R. § 393.100(c). Defendant argues that these regulations alone establish that it owed no duty to Plaintiff to properly load or secure the materials. DN 73-1 at 8–9. The Sixth Circuit has noted that the FMCSA regulations, in general, are “indicative of the proper allocation of duty as between a common carrier and a shipper for the proper loading of goods.” Rector v. Gen. Motors Corp., 963 F.2d 144, 147 (6th Cir. 1992). However, although the FMCSA regulations do place a nondelegable legal duty on drivers to ensure proper load placement and securement, it does not follow that shippers are absolved of all duty to the driver when the shipper assumes the responsibility of loading the cargo, as is the case here. See Pierce v. Cub Cadet Corp., 875 F.2d 866, 1989 U.S. App. LEXIS 14626, *9 (6th Cir.1989) (“Only if and when a shipper assumes the responsibility for loading its property on a motor vehicle, does it have the duty to exercise reasonable care to see that the load is properly secured.”).

*3 When the shipper assumes the responsibility of loading the cargo, “the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.” United States v. Savage Truck Line, Inc., 209 F.2d 442, 445 (4th Cir. 1953). The so-called “Savage rule” has been accepted by most federal and state courts. Decker v. New England Pub. Warehouse, Inc., 749 A.2d 762, 767 (Me. 2000) (“Most courts now accept the rationale of Savage and require carriers to take responsibility for the loads they carry even if those loads have been improperly loaded by others.”); Kucharski v. Orbis Corp., No. 14-cv-05574, 2017 U.S. Dist. LEXIS 68611, at *28 n.2 (N.D. Ill. May 5, 2017) (collecting cases that “have either explicitly applied the Savage rule or utilized rationale embodied in the Savage rule”). The Sixth Circuit has stated in an unpublished opinion that the rule “comports with Kentucky’s jurisprudence on negligence and contributory negligence.” Pierce, 875 F.2d 866, 1989 U.S. App. LEXIS 14626, *9. Likewise, it has also been applied by the Court of Appeals of Kentucky in an unpublished opinion. Musial v. PTC All. Corp., Nos. 2011-CA-001365-MR, 2011-CA-001481-MR, 2012 Ky. App. Unpub. LEXIS 639, at *19 (Ky. Ct. App. Aug. 24, 2012). Therefore, since Kentucky’s highest court has not spoken directly on the issue of what duty a shipper owes to a carrier when it assumes the responsibility of loading cargo, the Court will apply the Savage rule in this case. See Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009) (“Where no controlling state decision exists, the federal court must attempt to predict what the state’s highest court would do.” (quoting Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003)).

Because it is undisputed that TDY loaded the cargo into Plaintiff’s trailer on the day at issue, Defendant can only be liable for latent defects in the loading that would not have been apparent to Murrah upon ordinary observation. Savage Truck Line, Inc., 209 F.2d at 445. Thus, to survive summary judgment, Plaintiff must present evidence that a triable issue of fact exists as to whether a latent defect in TDY’s loading of the materials caused his injuries. As discussed below, plaintiff has not met this burden.

Courts applying the Savage rule have looked at two factors in deciding whether a latent defect exists: the driver’s level of experience and whether any assurances were given to the driver by the shipper regarding the safety of the load. See, e.g., Aragon v. Wal-Mart Stores E., LP, 735 F.3d 807, 810 (8th Cir. 2013); Vargo-Schaper v. Weyerhaeuser Co., 619 F.3d 845, 849 (8th Cir. 2010). These factors go toward assessing the risk that should have been apparent to the driver upon inspecting the load. See Aragon, 735 F.3d at 810. “It stands to reason drivers with more experience are more capable of detecting loading defects than those without experience.” Vargo-Schaper, 619 F.3d at 849. In addition, reasonable reliance on assurances from the shipper, who is familiar with the materials themselves and with loading them, may conceal what would otherwise be an obvious defect. Spence v. ESAB Grp., Inc., 623 F.3d 212, 221–222 (3d Cir. 2010).

For instance, in Franklin Stainless Corp. v. Marlo Transport Corp., the Fourth Circuit noted that although the loading of metal coils down the center of the trailer by the shipper without any type of securement was, of course, apparent to the driver upon visual inspection, “[i]t does not follow, however, that the defect in this manner of loading was open and obvious.” 748 F.2d 865, 868 (4th Cir. 1984). The court arrived at this conclusion because the driver had told the shipper that he had never hauled steel coils before, to which the shipper replied with assurances that the loading method was safe. Id. at 866, 869. See also Syngenta Crop Prod. v. Doyle Brant, Inc., No. 3:06-CV-84-S, 2008 U.S. Dist. LEXIS 3492, at *11–12 (W.D. Ky. Jan. 15, 2008) (finding an issue of fact to exist regarding whether defect in loading was latent because the driver testified he had never hauled the type of container at issue and the shipper gave assurances that the load would not shift).

*4 However, in Decker v. New England Public Warehouse, Inc., the court held that an unsafe loading configuration was not latent. 749 A.2d at 768. The court explained that in addition to the plaintiff being “an experienced driver for an established carrier,” he only inspected the cargo from ground level and assumed the load configuration to be safe. Id. at 767–68. The driver’s inspection should have revealed an unsafe configuration, the court reasoned, adding that “[a]n inadequate inspection does not force liability onto the shippers.” Id. at 768. Likewise, in Vargo-Schaper v. Weyerhaeuser Co., the court held that there was no latent defect in the loading of bundles of cardboard boxes because any “crowning” effect, which would have resulted in instability of the load, “would have been visible upon inspection.” 619 F.3d at 850. The court found that the two factors discussed above did not apply because the driver had “years of experience” driving tractor trailers, including handling loads for the shipper whose cargo was involved in the accident at issue in the case, and there was no evidence of any assurances given by the shipper regarding the safety of the load. Id.

In this case, Plaintiff has failed to show any evidence that his alleged damages were the result of a latent defect in Defendant’s loading of cargo onto his trailer. To begin, the Court notes that it is unclear from his response what Plaintiff believes the alleged defect was that caused his accident. The complaint alleges that Defendant “placed large metal material for shipment along the middle of the tractor, doing nothing to ensure that the material could not shift while in transit.” DN 1-1 ¶ 8. Then, Plaintiff mentions in his response, but does not cite to or attach as an exhibit, a statement from Plaintiff’s expert report that the loading of the containers single file down the middle of the trailer was improper because “the load was not centered between the fifth wheel of the truck and the rear axel tires,” creating an “unbalanced load.” DN 74 at 2; DN 50-1 at 23. The report stops short of stating that the load being unbalanced in this way is what caused the load to shift and thereby cause the rollover. See id. at 23–24. Instead, the report continues, stating that “there was no reason for the containers to shift to the left unless they were loaded incorrectly, to the left of the centerline of the trailer, front to back.”1 Id. at 24. These two statements appear to conflict as to the alleged incorrect loading method. However, drawing all inferences in favor of the nonmoving party, the Court will assume that not centering the load between the fifth wheel of the truck and the rear axel tires and the containers being loaded to the left of the centerline of the trailer are both potential theories of the alleged defect that caused the rollover. In addition to the load configuration, Plaintiff also suggests that the lack of securement, such as strapping, was a defect that caused the rollover. DN 74 at 2. In his response, Plaintiff cites to the deposition of one of TDY’s employees who responded in the affirmative when asked if driving with the containers unsecured by straps was a dangerous thing to do and whether it could cause a truck to overturn. Id.; DN 74-2 at 2–3.

No matter which theory Plaintiff relies on, he has put forward no evidence that any of these potential defects were latent. Although he had never previously transported cargo for Defendant, Plaintiff describes himself as an experienced driver who knew his responsibilities. DN 76-1 at 2– 3, 6. He also states in his deposition that he began learning about proper loading techniques while working for a furniture company in the 90s, the time at which he also began training for his CDL license. Id. 2–3. In addition, Plaintiff offers no evidence that Defendant gave any assurances regarding the safety of the load. The complaint alleges that “Plaintiff remarked at the placement of the material, but Defendant’s employees remarked that this was normal.” DN 1-2 ¶ 9. However, Plaintiff has not proven this assertion through the discovery process. Since neither of the above factors weigh in favor of the Plaintiff, there is no way for Plaintiff to prove that the load placement or lack of strapping were latent defects that were undiscoverable upon ordinary observation. To the contrary, both the placement of the cargo and the lack of securement were open and obvious. Plaintiff “had the opportunity to inspect the cargo and assure himself that it was properly distributed and adequately secured, as he was required to do under the [FMCSA] Safety Regulations.” Aragon, 735 F.3d at 812. Plaintiff’s failure to appreciate the risks of transporting the cargo, when the load placement and lack of securement were open and obvious to him, does not transfer responsibility onto Defendant.

*5 Yet, Plaintiff insists that “there is a genuine issue of material fact as to whether the defect in Defendant’s loading was apparent.” DN 74 at 6. He states in his response that “there was nothing particularly unusual about the load” and that he “relied on the knowledge of the shipper.” Id. at 8. Plaintiff claims this was reasonable to do, citing Defendant’s expert as stating that “the friction of the metal tub and the wood floor could be sufficient,” and that additional securement may be unnecessary in some circumstances. Id. at 8. However, the Savage rule does not consider the reasonableness of the driver’s belief regarding the safety of the load when that belief is not based on assurances from the shipper. See Franklin Stainless Corp., 748 F.2d at 869. The driver has the primary obligation to know how to properly distribute and secure the load he is transporting and to ensure that both are accomplished. Savage Truck Line, Inc., 209 F.2d at 445 (“The primary duty as to the safe loading of property is therefore upon the carrier.”); 49 C.F.R. §§ 392.9(a), 393.100(c); DN 73-4 at 3. This remains the case even if the driver mistakenly assesses the safety of the load. See Decker, 749 A.2d at 768. Plaintiff saw how the cargo was loaded and had a right, as well as a duty under FMCSA regulations, to request an adjustment. DN 73-4 at 3 (“Shipper agrees that Carrier has the right to request any load adjustments.”); 49 C.F.R. §§ 392.9(a), 393.100(c). The fact that Plaintiff “lacked the requisite knowledge to request a load adjustment,” as he claims, was not the fault of Defendant, as any potential defect in Defendant’s loading was open and obvious to Plaintiff.

Plaintiff also alleges that Defendant had knowledge that the load was unsafe and would shift, pointing to a statement of one of Defendant’s employees that he remembered one rollover incident that happened previously involving the transportation of Defendant’s cargo. DN 74 at 7–8. Plaintiff suggests that this statement makes the alleged defect latent because “[o]nly the shippers have the knowledge that … [the load] would [shift], and in fact had shifted [previously].” Id. at 8. However, this statement of TDY’s employee is irrelevant. In addition to the fact that Plaintiff has not proven that such an incident did in fact occur, the employee did not state that the alleged accident was due to a shifting load or that Defendant was in any way responsible. See DN 73-5 at 6. Therefore, Plaintiff’s arguments fail to establish that there is a genuine issue of material fact regarding whether there was a latent defect in how Defendant loaded Murrah’s trailer.

Lastly, Plaintiff points to certain language in the brokerage agreement that he claims places responsibility of Defendant. First, he claims that it limits Plaintiff’s ability “to participate in the loading of the trailer” because the agreement states that “drivers are not to remain in the cab of their trucks, nor are they permitted to be on the fiat bed of the trailer during loading or unloading,” and that “[d]rivers should be a safe distance from any loading or unloading of material.” DN 74 at 8; DN 73-4 at 3. However, this language in no way affected Plaintiff’s ability to make an inspection after the loading took place and then to request an adjustment if necessary. The agreement also states that the carrier is responsible for the placement of the load “unless access is prohibited.” DN 73-4 at 3. Plaintiff claims that his access was prohibited. DN 74 at 9. However, nothing in the record indicates that Plaintiff was not allowed access to his loaded trailer once loading was complete. The loading protocols outlined in the agreement are for the driver’s safety and do not amount to a prohibition on access as Plaintiff suggests.

Finally, Plaintiff highlights other language in the agreement as supporting his position. The agreement states that “Carrier will not be responsible to the extent that employees of the Shipper may assist Carrier’s driver with preparing, loading, or securing the commodities to be shipped and are negligent in doing so.” DN 73-4 at 3. In addition, the agreement provides that the carrier shall be required to indemnify the shipper, “except to the extent of Shipper’s negligence.” Id. Plaintiff argues that these provisions “support[ ] actionability on the part of the Plaintiff against the Defendant shipper here.” DN 74 at 9. This is incorrect. These provisions only state that the carrier will not be liable to the shipper in certain circumstances. They do not, however, state that the shipper will be liable to the carrier in those circumstances. In other words, the language does not overcome the allocation of duties as described in the case law regarding when a shipper is liable to a carrier for its negligent loading. Therefore, nothing in the agreement alters the above Savage rule analysis discussed by the Court. Plaintiff has failed to present any evidence that his damages were the result of a latent defect in Defendant’s loading as he is required to do to survive summary judgment. As a result, no reasonable jury could return a verdict for Plaintiff.

IV. CONCLUSION
*6 For the reasons discussed herein, Defendant’s motion for summary judgment, DN 73, will be granted by separate order.

June 15, 2021

All Citations
Slip Copy, 2021 WL 2460612

Footnotes

1
The report states:
The evidence indicates that there was no reason for the containers to shift to the left unless they were loaded incorrectly, to the left of the centerline of the trailer, front to back…. This rollover was caused by the loaded [sic] moving to the left side of the trailer and causing the right-side trailer tires to lose contact with the ground.
DN 50-1 at 24.