2021 WL 4891749

United States District Court, D. South Carolina, Charleston Division.
John Thomas Akehurst Jr. and Barbara Lee Akehurst, Plaintiffs,
v.
Buckwalter Trucking, LLC, Lamar A. Buckwalter, Defendants.
Civil Action No. 9:21-CV-01506-RMG
|
Filed 10/18/2021

ORDER AND OPINION
Richard M. Gergel United States District Judge
*1 Before the Court is Plaintiffs’ motion to compel Defendants to provide more complete responses to Plaintiffs’ discovery requests. (Dkt. No. 20). For the reasons stated below, the motion is denied.

I. Background
This matter arises out of an automobile collision that occurred on August 12, 2020 in Jasper County, South Carolina. (Dkt. No. 1-1 at ¶ 1). Plaintiff John Thomas Akehurst, Jr. alleges he was stopped on I-95 at standstill traffic when Defendant Lamar A. Buckwalter collided his tractor-trailer into the rear of Plaintiff’s Toyota Prius. (Id. at ¶ 10). Plaintiffs bring claims for negligence, negligence per se, and gross negligence as to both Defendants. Plaintiffs bring claims for negligent hiring and entrustment; negligent training and supervision; and negligent retention as to Defendant Buckwalter Trucking, LLC. Plaintiffs also bring a loss of consortium claim. Plaintiffs seek a judgment against Defendants jointly and severally for actual and punitive damages. (Id. at ¶ 35).

On July 22, 2021, Plaintiffs served Defendants with First Set of Interrogatories (ROGs) and First Set of Requests for Production of Documents (RFPs). (Dkt. No. 20-1). Plaintiffs maintain the primary aim of these discovery requests is for Plaintiffs to investigate the financial wherewithal of Defendants to respond to any judgment which may exceed available liability coverage. (Dkt. No. 20-2). On August 24, 2021, Defendants served responses to Plaintiffs’ discovery requests. (Dkt. No. 20-3). In a letter to Defense counsel dated August 26, 2021, Plaintiffs’ counsel noted perceived deficiencies in Defendants’ responses to Plaintiffs’ discovery requests that sought Defendants’ financial data and insurance coverage and narrowed the discovery requests in an attempt to resolve the discovery dispute. (Dkt. No. 20-4).

On September 15, 2021, Plaintiffs filed the instant motion to compel Defendants to respond to Plaintiffs’ discovery requests seeking Defendants’ financial information and insurance coverage. (Dkt. No. 20). Defendants filed a response in opposition. (Dkt. No. 24). The matter is ripe for the Court’s review.

II. Legal Standard
Parties to a civil litigation “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Information is relevant if it has any tendency to make a fact of consequence to the action more or less probable than it would be otherwise. Fed. R. Evid. 401. The district court may broadly construe rules enabling discovery, but it “must limit the frequency of extent of discovery otherwise allowed” if it determines that the discovery sought is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive”; if the requesting party “had had ample opportunity to obtain the information by discovery in the action”; or if it is otherwise “outside the scope permitted by Rule 26(b)(1).” Fed R. Civ. P. 26(b)(2). The district court treats an “evasive or incomplete” discovery response as “a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). “The scope and conduct of discovery are within the sound discretion of the district court.” Columbus-Am. Discovery Grp. V. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1993).

III. Discussion
*2 In their motion to compel, Plaintiffs maintain Defendants have failed to respond to Plaintiffs’ ROGs and RFPs that seek discovery related to Defendants’ financial data and insurance coverage. In a letter dated August 26, 2021, Plaintiffs’ counsel narrowed these discovery requests in an effort to resolve this dispute. (Dkt. No. 23 at 4; Dkt. No. 20-4). The narrowed discovery requests are as follows:

A. Financial Data
• ROGs (3)-(4) list of names and addresses of any banks or financial institutions where Defendant Buckwalter Trucking, LLC has had a business line of credit or loan in 2019, 2020, and 2021; and banks or financial institutions where Defendant Lamar A. Buckwalter has had a personal line of credit or loan in 2019, 2020, and 2021;
• ROG (5) provide names and addresses of any CPA or accounting firm which has performed services for Buckwalter Trucking LLC during 2019, 2020, and 2021. (Dkt. No. 20-4 at 4);
• RFP (3) provide Financial Statement and the Profit and Loss Statement for Buckwalter Trucking, LLC for 2019, 2020, and 2021;
• RFP (4) disclose the names and addresses of all owners and/or officers of Defendant Buckwalter Trucking, LLC;
• RFP (5) produce a copy of State and Federal tax returns with all scheduled and attachments for Defendants from 2018 through present.
(Dkt. No. 20-4 at 4, items 1-5; Dkt. No. 23 at 5). Plaintiffs argue these discovery requests are relevant because it will assist Plaintiffs in determining Defendants’ ability to pay any judgment which may exceed available liability coverage including a punitive damages verdict should one be awarded. (Dkt. No. 23 at 9). Defendants object to these requests on several grounds such as the requests are harassing, invasive, overly broad, not reasonably calculated to lead to the discovery of admissible information in that the requests seek private financial information, and no evidence tending to suggest either Defendant acted in a reckless or wanton manner that would entitle Plaintiffs to an award of punitive damages. (Dkt. No. 20-3 at 5-6; 9-12). In response to Plaintiffs’ motion to compel, Defendants argue these discovery requests are improper because Plaintiffs have not set forth a viable claim for punitive damages. (Dkt. No. 24 at 6).

For discovery purposes, documents related to Defendants’ financial condition becomes relevant if Plaintiffs’ claim for punitive damages is viable. Nix v. Hollbrook, Civil Action No. 5:13-02173, 2015 WL 791213, at * 3 (D.S.C. Feb. 25, 2019). There is no controlling authority that establishes a standard for what a plaintiff must show in order to discover a defendant’s financial condition. E.E.O.C. Envtl. & Demolition Servs., Inc., 246 F.R.D. 247, 249 (D. Md. 2007). Courts in the District of South Carolina require a plaintiff to make a prima facie showing of his entitlement to punitive damages before he can discover the defendant’s financial condition, albeit not necessarily during summary judgment. Kappel v. Garris, No. 2:19-cv-498-DCN, 2020 WL 707123, at *3 (D.S.C. Feb. 12, 2020); Moore v. BPS Direct, LLC, Civil Action No. 2:17-3228-RMG, 2019 WL 2950082, at * 2 (D.S.C. July 9, 2019); Cardoso v. Holder Constr. Co., C.A. No.: 2:16-cv-1058-PMG, 2017 WL 976315, at *2 (D.S.C. Mar. 14, 2017); Nix, 2015 WL 791213, at * 3 (“… the court declines at this time to require production of sensitive documents until after Plaintiff has established the viability of his claim for punitive damages.). In order to receive an award of punitive damages under South Carolina law, Plaintiffs must prove by clear and convincing evidence Defendants’ misconduct was “willful, wanton, or in reckless disregard of the plaintiff’s rights.” Lister v. NationsBank of Delaware, N.A., 494 S.E.3d 449, 458 (S.C. Ct. App. 1997).

*3 Plaintiffs argue there is sufficient evidence to establish a prima facie case for punitive damages, thus making Defendants’ financial information relevant. (Dkt. No. 23 at 9). Plaintiffs argue the pre-litigation joint inspection “clearly proves liability” and provides “substantial uncontradicted evidence” which shows Defendant Lamar A. Buckwalter drove his tractor-trailer into the rear of Plaintiffs’ stopped vehicle and opens Defendants up to punitive damage exposure. (Dkt. No. 23 at 2, 9). Plaintiffs maintain a jury could determine Defendants violated S.C. Code § 56-5-1520 (general rules as to maximum speed limits; lower speeds may be required) and § 56-5-1930 (following too closely), and the violation of a statutory provision is evidence of “recklessness and willfulness, requiring the submission of punitive damages to the jury.” Wise v. Broadway, 433 S.E.2d 857, 859 (S.C. 1993); (Dkt. No. 23 at 1-2, 9-10). Plaintiffs argue they suffered severe and permanent injuries from the accident and over $210,000 in medical expenses. (Dkt. No. 23 at 9-10). Plaintiffs maintain the “actual damages alone would easily exceed $1,000,000.” (Id. at 2).

Defendants argue Plaintiffs have not set forth a prima facie claim for punitive damages. Defendants argue discovery has just begun, Plaintiffs’ discovery requests do not focus on the elements required to prove Plaintiffs’ claims, and at the filing of the motion to compel, no depositions had been taken. (Dkt. No. 24 at 9). Further, Plaintiffs have not provided any evidence the actual damages alone would exceed $1,000,000, or in excess of Defendants’ appliable insurance policy. (Id. at 7).

After careful consideration of the parties’ arguments on this issue, the Court finds that Plaintiffs have not established a prima facie case of punitive damages. Plaintiffs’ motion to compel as to Plaintiffs’ discovery requests that seek financial data from Defendants is denied without prejudice pending a determination that Plaintiff has made a prima facie showing they are entitled to punitive damages.

B. Insurance Coverage
In addition to seeking Defendants’ financial data, Plaintiffs’ discovery requests seek to clarify whether the sole insurance policy disclosed thus far is the only insurance policy applicable to the claims in this case. (Dkt. No. 23 at 5).

In short, ROG 1 seeks the names and addresses of all insurance companies which have liability insurance coverage which may potentially have coverage for either Defendant which could be applicable to the claims in this case including (1) primary liability policies; (2) excess or umbrella policies; (3) shippers’ policies; (4) brokerage policies or leasehold entity policies; (5) policies providing separate coverage for the trailer or load being transported at time of collision. For each policy set forth the policy number(s) and amount of coverage. If Defendant has entered into any agreements with respect to self-insured retention amounts or insurance program agreements, identify all documents that relate to the applicable policy period. (Dkt. No. 20-1 at 3, ROG 1).

As to subpart (1) Defendants state the only appliable primary liability policy is Daily Underwriters of America Policy # PAPDUOA44823, which has liability limits of $1,000,000. In response to subparts (3)-(5), Defendants state “none known.” (Dkt. No. 20-3 at 4). Defense counsel signed Defendants’ responses to Plaintiffs’ ROGs and RFPs, certifying the responses are true and correct to the best of counsel’s knowledge and belief pursuant to Federal Rule of Civil Procedure 26(g). (Dkt. No. 24-2 at 1). The Court finds Defendants have fully responded to ROG 1 and have a continuing obligation to timely supplement their discovery responses pursuant to Federal Rule of Civil Procedure 26(e)(1) if any additional applicable insurance coverage is discovered. Plaintiffs’ motion to compel is denied as to ROG 1.

In summary, ROG 2 states if “Defense counsel responds to [ROG 1] by disclosing no other potentially applicable insurance policy, please confirm under oath that defense counsel has made a diligent search and inquiry regarding any other potentially applicable coverage, and please confirm that both named defendants have been separately consulted regarding a full and complete sworn response to [ROG 1].” ROG 2 asks defense counsel to describe due diligence inquiries that have been made to respond to ROG 1 including the names of all persons who have been consulted with or have provided information to defense counsel. (Dkt. No. 20-1 at 4, ROG 2).

*4 Defendants object to ROG 2 on the ground Defense counsel is not a party to the lawsuit and are not obligated to respond to this alleged discovery request. (Dkt. No. 20-3 at 4). The Court previously found Defendants fully responded to Plaintiffs’ ROG 1 and Defense counsel signed Defendants’ responses to Plaintiffs’ ROGs and RFPs, certifying the responses are true and correct to the best of counsel’s knowledge and belief. As such, Plaintiffs’ motion to compel as to ROG 2 is denied.

IV. Conclusion
For the reasons stated above, Plaintiffs’ motion to compel as to ROGs 1 and 2 is DENIED. (Dkt. No. 20). Plaintiffs’ motion to compel as to the discovery requests that seek Defendants’ financial data is DENIED WITHOUT PREJUDICE. (Dkt. No. 20).

AND IT IS SO ORDERED.

All Citations
Slip Copy, 2021 WL 4891749

2021 WL 4765499

United States District Court, M.D. Georgia, Macon Division.
Eric Dean CASTLEBERRY, et al., Plaintiffs,
v.
Anthony K. THOMAS, et al., Defendants.
CIVIL ACTION NO. 5:20-CV-396 (MTT)
|
Signed 10/12/2021
Attorneys and Law Firms
Linley Jones, Angela Forstie, The Linley Jones Firm, P.C., Atlanta, GA, for Plaintiffs.
Matthew Reeves Sessions, Scott W. McMickle, Alpharetta, GA, for Defendants Anthony K. Thomas, Anthony Thomas Logistics LLC.

ORDER
MARC T. TREADWELL, CHIEF JUDGE
*1 Defendants Anthony K. Thomas and Anthony Thomas Logistics, LLC have moved for summary judgment on the plaintiffs’ claims for lost profits, punitive damages, bad faith attorney’s fees, and negligence per se. Doc. 26. For the following reasons, the defendants’ motion is GRANTED in part and DENIED in part.

I. BACKGROUND1
The facts of this case are straightforward and mostly undisputed. On December 12, 2017, Teddy Castleberry was in a motor vehicle accident with a tractor-trailer operated by Defendant Anthony Thomas.2 On the date of the accident, Thomas, who was employed by his company, Anthony Thomas Logistics, LLC, was making a delivery to Cash Liquidations, a business in Monroe County, Georgia. Docs. 26-8 ¶ 1; 29 ¶ 1. Cash Liquidations unloaded trucks on a first-come, first-served basis, and Thomas was informed that Cash Liquidations opened at 10:00 a.m. Doc. 31-3 at 49:13-50:15. Thomas arrived at Cash Liquidations on the day of the accident at 6:30 a.m., three and a half hours early. Id. at 66:5-8. Not surprisingly, Thomas’s was the first truck to arrive at Cash Liquidations that day, and because he wanted to ensure his trailer would be the first unloaded, he parked along the road outside of the business’s entrance. Id. at 70:5-71:18; Docs. 26-8 ¶ 2; 29 ¶ 2. Thomas knew that his trailer was partially parked in the road, and he even testified that he parked next to a no parking sign because he “wanted to be sure [he] was the first in line.” Docs. 26-8 ¶ 3; 29 ¶ 3; 31-3 at 71:4-72:23, 107:15-108:2. Approximately two hours after Thomas arrived, and with his trailer still parked in the road, Castleberry drove his vehicle into the trailer, which was allegedly indiscernible because of the position of the sun. Docs. 1-1 ¶ 20; 26-3 ¶ 5; 29 ¶ 5.

The defendants have moved for summary judgment on the plaintiffs’ claims for lost profits, punitive damages, bad faith attorney’s fees, and negligence per se. Doc. 26.

II. STANDARD
A court must grant summary judgment “if the movant shows 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). A factual dispute is not genuine unless, based on the evidence presented, “ ‘a reasonable jury could return a verdict for the nonmoving party.’ ” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); Anderson, 477 U.S. at 248. The movant may support its assertion that a fact is undisputed by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). “When the nonmoving party has the burden of proof at trial, the moving party is not required to ‘support its motion with affidavits or other similar material negating the opponent’s claim[ ]’ in order to discharge this ‘initial responsibility.’ ” Four Parcels of Real Prop., 941 F.2d at 1437-38 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Rather, “the moving party simply may ‘show[ ]—that is, point[ ] out to the district court—that there is an absence of evidence to support the nonmoving party’s case.’ ” Id. (alterations in original) (quoting Celotex, 477 U.S. at 324). Alternatively, the movant may provide “affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial.” Id.

*2 The burden then shifts to the non-moving party, who must rebut the movant’s showing “by producing … relevant and admissible evidence beyond the pleadings.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (citing Celotex, 477 U.S. at 324). The non-moving party does not satisfy its burden “if the rebuttal evidence ‘is merely colorable, or is not significantly probative’ of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249-50). Further, where a party fails to address another party’s assertion of fact as required by Fed. R. Civ. P. 56(c), the Court may consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2). However, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge…. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

III. DISCUSSION

A. Lost Profits
The plaintiffs assert that because of the motor vehicle accident, Castleberry was unable to work and thus his restaurant, This Little Piggy BBQ, lost profits. Doc. 1-1 ¶ 23. The defendants contend, however, that the plaintiffs cannot provide the evidence necessary for a jury to award lost profit damages. Doc. 26 at 10-13. Specifically, the defendants argue that relevant tax records establish that This Little Piggy BBQ was operating at a net loss in the years immediately preceding the motor vehicle accident. Id. at 11. Thus, according to the defendants, lost profit damages are inappropriate in this case.

Under Georgia law, a plaintiff may recover lost business profits if the business has a proven track record of profitability. Stern’s Gallery of Gifts, Inc. v. Corp. Prop. Investors, Inc., 176 Ga. App. 586, 592 (1985). But if a business does not have a history of profitability, lost profits are too speculative to be awarded. Springwell Dispensers, Inc. v. Hall China Co., 204 Ga. App. 245, 246 (1992). To calculate profitability, the fact finder “must be provided with figures establishing the business’ projected revenue as well as its projected expenses.” Johnson Cnty. Sch. Dist. v. Greater Savanah Lawn Care, 278 Ga. App. 110, 112 (2006). In other words, a plaintiff seeking lost profits must produce evidence of lost net profits—lost gross profits are insufficient. Authentic Architectural Millworks, Inc. v. SCM Group USA, Inc., 262 Ga. App. 826, 831 (2003).

The plaintiffs assert that “tax records from 2014, 2015, and 2016 show that [Castleberry] was working in the years prior to the wreck and show a gross profit for the BBQ restaurant of $85,709 in 2014, $48,117 in 2015, and $47,704 in 2016.” Doc. 27 at 5. The plaintiffs further add that “[i]n the months prior to the wreck in 2017, $45,141.70 was deposited into the restaurant’s bank account.”3 Id. at 12. Using the business’s gross profits from 2014 through 2016 and the bank deposits from 2017, the plaintiffs arrive at $4,723.33 as the restaurant’s monthly gross profit before the accident. Id. From there, the plaintiffs claim that the difference between Castleberry’s expected gross profits from the time of the accident to his death ($129,864.07) and the actual deposits in the bank during this same period ($76,365.36) represent the business’s recoverable lost profits ($53,498.71). In short, the plaintiffs’ theory of recovery is that average gross profits from before the accident may provide a jury with a method to calculate Castleberry’s lost profits.4 The plaintiffs, not surprisingly, cite no authority to support their argument that lost profits can be calculated this way. It’s a theory that has no basis in law, fact, or common sense.

*3 Here, there is no evidence tending to prove a track record of net profitability of Castleberry’s business, This Little Piggy BBQ. On the contrary, tax returns establish that in the three full years prior to the accident, the business only returned a net profit in 2014. Doc. 26-4 at 4, 15, 27. In 2014, the business reported a net profit of $19,264; in 2015, the business reported a net loss of $7,972; and in 2016, the business reported a net loss of $1,178. Id. Thus, the plaintiffs have not supported their claim with evidence from which a jury could calculate lost profits without resorting to guesswork. Accordingly, the defendants’ motion for summary judgment on the plaintiffs’ lost profits claim is GRANTED.

B. Punitive Damages
The plaintiffs have asserted a claim for punitive damages pursuant to O.C.G.A. § 51-12-5.1. Punitive damages are available in “tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” O.C.G.A. § 15-12-5.1. “Negligence, even gross negligence, is inadequate to support a punitive damage award.” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (1988). In motor vehicle accident cases, “punitive damages are not recoverable where the driver at fault simply violated a rule of the road.” Carter v. Spells, 229 Ga. App. 441, 442 (1997).

The plaintiffs argue that Thomas completely disregarded the rights of other travelers by parking his truck partially in the road for his own convenience. Doc. 27 at 15. Specifically, the plaintiffs point to Thomas’s testimony that he parked directly beside a no parking sign and that he did not consider parking anywhere else because he wanted his trailer to be unloaded first when Cash Liquidations opened. Doc. 27 at 14-15.

The defendants argue that this is a straightforward motor vehicle accident case, and, at most, Thomas was merely negligent. The defendants also argue that there is no evidence of aggravating factors in this case that could support an award of punitive damages, and that even if Thomas violated a rule of the road, that is insufficient for an award of punitive damages. Doc. 26 at 14-15 (quoting Carter, 229 Ga. App. at 442).

But despite the defendants’ arguments, there is sufficient evidence to create a jury question as to whether Thomas intentionally violated the rules of the road. First, it is undisputed that Thomas arrived at Cash Liquidations three and a half hours before it opened. Doc. 31-3 at 63:5-24. Second, it is undisputed that Thomas was aware that his truck was parked partially in the road, creating a hazard for other drivers for an extended time. Docs. 26-8 ¶ 3; 29 ¶ 3; 31-3 at 71:4-8. Finally, Thomas twice stated in his deposition that he parked directly beside a no parking sign. Doc. 31-3 at 107:15-108:2, 148: 6-21. In conclusion, the Court finds that based on this evidence, a reasonable jury could conclude that Thomas’s actions exhibited willful misconduct and that the plaintiffs are entitled to punitive damages. Accordingly, the defendants’ motion for summary judgment on the plaintiffs’ punitive damages claim is DENIED.

C. Attorney’s Fees
The plaintiffs have also asserted a claim for attorney’s fees under O.C.G.A. § 13-6-11. Georgia law allows attorney’s fees when the “defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” O.C.G.A. § 13-6-11. Here, the plaintiffs seek attorney fees because of Thomas’s alleged bad faith. Doc. 27 at 16. Bad faith in this context refers to the “dealings out of which the cause of action arose, rather than bad faith in defending or resisting the claim after the cause of action has already arisen.” Comput. Communications Specialists, Inc. v. Hall, 188 Ga. App. 545, 547 (1988) (citation omitted). “Bad faith requires more than ‘bad judgment’ or ‘negligence,’ rather the statute imports a ‘dishonest purpose’ or some ‘moral obliquity’ and implies ‘conscious doing of wrong’ and a ‘breach of known duty through some motive of interest of ill will.’ ” Lewis v. D. Hays Trucking, Inc., 701 F. Supp.2d 1300, 1313 (N.D. Ga. 2010) (quoting Vickers v. Motte, 109 Ga. App 615, 619-20 (1964)).

*4 On this issue, both parties either repeat their punitive damages argument or argue the two issues together. Docs. 27 at 15-16; 32 at 3-4. And while sometimes the fate of a punitive damages claim may not foretell that of a bad faith attorney’s fee claim, this is not one of those rare cases. See Lewis, 701 F. Supp.2d at 1311-13. Based on the evidence outlined in the punitive damages section above, a reasonable jury could find that Thomas acted with bad faith and that the plaintiffs are entitled to attorney’s fees. Accordingly, the defendants’ motion for summary judgment on the plaintiffs’ attorney’s fees claim is DENIED.

D. Negligence Per Se
The plaintiffs allege that the defendants were liable per se by failing to place warning devices in the road as required by 49 C.F.R. § 392.22(b). Doc. 1-1 at ¶ 26. The regulation states that “[w]henever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by … this section.” 49 C.F.R. § 392.22(a). The regulation requires two warning devices in the direction of approaching traffic and one warning device in the direction away from approaching traffic. 49 C.F.R. § 392.22(b).

The defendants argue that negligence per se is inapplicable because “the Plaintiffs have no evidence that Defendant Thomas did not place warning devices in compliance with 49 C.F.R. § 392.22(b).”5 Doc. 32 at 1. The plaintiffs, however, point to Castleberry’s verified discovery responses where he stated that “Thomas failed to place warning signs, turn on his hazard lights, or otherwise warn drivers that he was parked in the roadway.” Doc. 27-2 at 16-17. Also, and assuming Defendant Thomas placed a warning sign, it is disputed whether Thomas placed the signs properly. See Doc. 31-5 at 29:9-18. Because of this evidence, the Court cannot rule as a matter of law that Thomas properly placed warning devices as required by 49 C.F.R. § 392.22. Accordingly, the defendants’ motion for summary judgment on the plaintiffs’ negligence per se claim is DENIED.

IV. CONCLUSION
For the reasons discussed above, the defendants’ motion for partial summary judgment (Doc. 26) is GRANTED in part and DENIED in part. The plaintiffs’ claim for lost profits is DISMISSED. The plaintiffs’ remaining claims may proceed to trial.

SO ORDERED, this 12th day of October, 2021.

All Citations
Slip Copy, 2021 WL 4765499

Footnotes

1
Unless otherwise stated, the facts are undisputed and are viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).

2
Teddy Castleberry is now deceased for reasons unrelated to the accident. His son, Eric Dean Castleberry, the administrator of Teddy’s estate, has been substituted in his place. Doc. 10. Teddy Castleberry’s surviving spouse, Shirley Castleberry, is also a plaintiff in this case because of a loss of consortium claim not at issue in this order.

3
The gross profits listed in the tax returns represent the business’s total revenue less the cost of goods. Doc. 26-4 at 7, 18, 27. In other words, this figure does not account for expenses such as supplies, licenses, utilities, wages, or the other numerous expenses a restaurant naturally incurs. Moreover, Castleberry did not file tax returns for 2017, so the plaintiffs use bank deposits instead. See Doc. 26-5 at 2. Merely using the business’s bank deposits—which do not even account for restaurant’s cost of goods—to calculate profitability adds another flip into what can already be described as logical gymnastics.

4
At oral argument, plaintiff tried to come up with other theories to recover lost profits, such as allowing the jury to find a history of profitability by ignoring certain business expenses, but the plaintiff did not support this theory with legal authority, factual evidence, or expert opinion.

5
Originally, the defendants also argued that the regulation was inapplicable because an exception applied for commercial vehicles parked “within the business or residential district of a municipality” during daylight hours. 49 C.F.R. § 392.22(b)(2). However, the defendants conceded at oral argument that Thomas was not parked within a municipality.