2021 WL 2444951

United States District Court, W.D. Texas, Austin Division.
DAVID FLAMBURES, Plaintiff
v.
KEVIN DANIEL MCCLAIN and TRANSPORT CORPORATION OF AMERICA, INC., Defendants
Case No. 1:20-cv-00304-DAE
|
Filed 06/15/2021

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE
*1 TO: THE HONORABLE DAVID A. EZRA UNITED STATES DISTRICT JUDGE

Before the Court are Defendants’ Motion for Summary Judgment on Plaintiff’s Claim of Negligence, filed February 25, 2021 (Dkt. 26), and the associated response and reply briefs.1 The District Court referred the Motion to the undersigned Magistrate Judge for Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Dkt. 31.

I. Background
On January 4, 2019, Plaintiff David Flambures was driving on Interstate Highway 35 in Hays County, Texas, when he looked down at his cell phone and then rear-ended a tractor-trailer owned by Transport Corporation of America, Inc. (“Transport America”) and driven by Kevin McClain (collectively, “Defendants”). Dkt. 1-3 ¶¶ 6, 9; Dkt. 28 at 2. Plaintiff alleges that McClain made an unsafe lane change that caused the collision. Id. ¶ 9.

Plaintiff filed suit in state court, asserting a claim for negligence against McClain and respondeat superior liability against Transport America. Id. ¶¶ 10-14. Flambures v. McClain, No. 20-0212 (207th Dist. Ct., Hays County, Tex. Jan. 28, 2020). On March 20, 2020, Defendants removed the case to this Court based on diversity jurisdiction under 28 U.S.C. § 1332 and filed an Answer denying all liability and claiming that the accident was the result of Plaintiff’s negligence. Dkts. 1, 1-3, 5. Defendants now move for summary judgment under Federal Rule of Civil Procedure 56, arguing that they are entitled to judgment on Plaintiff’s negligence claim.

II. Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials, and any affidavits on file show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. A court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Anderson, 477 U.S. at 254-55.

*2 Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation also are not competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports its claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); see also Griggs v. Brewer, 841 F.3d 308, 316 (5th Cir. 2016) (affirming district court grant of summary judgment where record included video evidence showing that pertinent facts were undisputed); Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (stating that a court need not rely on plaintiff’s description of the facts “where the record discredits that description but should instead consider ‘the facts in the light depicted by the videotape’ ” (quoting Scott, 550 U.S. at 381)).

III. Summary Judgment Record
Defendants submitted as summary judgment evidence transcripts of the depositions of Plaintiff (Exh. B, Dkt. 26-2) and independent witness David Jerez (Exh. A, Dkt. 26-1), as well as video footage from the dashboard camera on McClain’s vehicle (Exh. D, Dkt. 26-4). Plaintiff submitted the transcript of McClain’s deposition (Exh. A, Dkt. 28-1) and the Texas Peace Officer’s Crash Report, dated January 4, 2019 (Exh. B, Dkt. 28-2).

IV. Analysis
The elements of a negligence cause of action under Texas law are “the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015) (quoting IHS Cedars Treatment Ctr. of DeSoto, Tex. Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)). To show breach of duty, a plaintiff must present evidence that the defendant failed to do as an ordinarily prudent person would have done under the same or similar circumstances. Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984) (citing Great Atl. & Pac. Tea Co. v. Evans, 175 S.W.2d 249, 251 (Tex. 1943)).

A. Negligence
Defendants contend that they are entitled to summary judgment because there is no evidence that McClain breached his duty of care. Plaintiff responds that summary judgment is precluded by factual disputes as to whether McClain breached his duty by (1) making an unsafe lane change, and (2) driving below the posted speed limit without warning lights.

1. Lane Change
First, Plaintiff alleges that McClain breached his duty of care by making an unsafe lane change before the crash. Dkt. 1-3 ¶ 9; Dkt. 28 at 4. Plaintiff testified that the accident occurred as he “looked down for a split second.” Dkt. 26-2 at 12, Flambures Tr. at 35:21-36:2. Plaintiff further testified that he was in the right lane when he first saw the tractor-trailer driven by McClain in the left lane, two car lengths in front of him. Id. at 36:3-37:22.
They started to slow down. I didn’t pay any attention. I figured, you know, keep going. Next thing I know, I looked down for a split second. That was it. I felt a crunch. I heard something pop on my head, and that was the last thing I remember.
*3 …
Q. Okay. Did you ever see that tractor-trailer change lanes into the right lane?
A. No.
Q. And is it your belief that that tractor-trailer changed lanes when you looked down for that split second?
A. Correct.
Dkt. 26-2 at 12-13, Flambures Tr. at 37:24-38:19. When asked what he was looking at just before the accident, Plaintiff testified: “I think it was my personal cell phone went off like a text, and I looked down because it buzzed and fell on the floor, if I remember correctly. I – I can’t recall exactly what I was looking at.” Id. at 19, Flambures Tr. at 64:3-11.

The footage from McClain’s dashboard camera shows McClain driving in the right lane for a full eight seconds before the crash. Dkt. 26-4. Defendants also point to testimony from independent witness David Jerez that McClain was in the right lane for “a minute or two” before the collision and that he did not observe McClain change lanes before the accident. Dkt. 26-1 at 18-19, Jerez Tr. at 16:8-25, 17:1-4.

Plaintiff responds that his and Jerez’s testimony “present an actual factual dispute about how long Plaintiff looked down and how long Defendant McClain was in his lane.” Dkt. 28 at 4. In other words, Plaintiff suggests that summary judgment as to Defendants’ negligence is precluded by a factual dispute whether Plaintiff looked down at his cell phone for more than eight seconds while driving 70 miles an hour on IH-35 before he ran into McClain. See id. (“Defendants argue that this split second allegedly lasted only eight seconds and the correlating dash camera footage shows that Defendant McClain did not switch lanes during that small eight second period.”).

Considering the summary judgment record as a whole, including the dash-camera footage, Jerez’s testimony, and Plaintiff’s admission that he did not observe McClain change lanes, there is no evidence that McClain “made an unsafe lane change causing Plaintiff to violently rear-end[ ] Defendant.” Dkt. 1-3 ¶ 9. There is no genuine issue of material fact that McClain did not breach his duty of care by making an unsafe lane change that caused the collision.

2. Speed
Plaintiff also argues that McClain breached his duty of care by driving below the speed limit in a hazardous manner. Dkt. 28 at 5. Defendants reply that the dash-camera footage shows McClain driving with the flow of traffic, as an ordinarily prudent person would, and that there is no record evidence that McClain breached his duty by driving at a reduced speed. Dkt. 30 at 2-3.

McClain testified that he was driving around 30 to 40 miles per hour at the time of the accident, below the posted speed limit of 70 miles per hour, because he was preparing to enter the line for an open weigh station. Dkt. 28-1 at 15-16, McClain Tr. at 14:23-25, 15:1-5. Jerez also testified that traffic in the right lane was traveling more slowly near the weigh station entrance. Dkt. 26-1 at 10-11, 17, Jerez Tr. at 8:14-9:6, 15:3-7. The dash-camera footage shows McClain driving at a speed consistent with the flow of traffic in the right lane. Dkt. 26-4. Similarly, the crash report states: “Unit 2 [McClain] was slowing in the right lane of SB IH-35 to enter a commercial motor vehicle inspection station. Unit 1 [Plaintiff] changed lanes from the center lane to the right around the witness [Jerez] and failed to control speed, striking the rear of Unit 2’s trailer.” Dkt. 28-2 at 3.

*4 Plaintiff did not testify that McClain’s reduced speed was a factor in the crash. There is no evidence that McClain breached his duty of care by driving below the speed limit.

3. Conclusion as to Negligence
Plaintiff has not met his burden to identify specific evidence in the record showing a genuine issue of material fact as to either of his breach-of-duty theories. Accordingly, Defendants are entitled to summary judgment on Plaintiff’s negligence claim against McClain.

B. Respondeat Superior
Defendants argue that Plaintiff’s assertion of vicarious liability against Transport America fails as a matter of law because its employee, McClain, was not negligent. Dkt. 26 at 8. Plaintiff did not address this argument in his response.

Under the theory of respondeat superior, an employer is vicariously liability for the negligent acts of its employee if the employee’s actions are within the course and scope of his employment. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007). Doctrines of vicarious liability do not apply where the alleged tortfeasor is not liable as a matter of law. See Crooks v. Moses, 138 S.W.3d 629, 638 (Tex. App.—Dallas 2004, pet. denied) (stating that the vicarious liability determination is never reached if the alleged tortfeasor is not liable as a matter of law); see also Turner v. Upton Cnty., Tex., 915 F.2d 133, 138 n.7 (5th Cir. 1990) (stating that respondeat superior is not an independent cause of action). Because Plaintiff’s negligence claim against McClain fails for lack of evidence, Plaintiff cannot hold Transport America vicariously liable under a theory of respondeat superior.

V. Recommendation
Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the District Court GRANT Defendants’ Motion for Summary Judgment on Plaintiff’s Claim of Negligence (Dkt. 26) and enter judgment for Defendants.

IT IS FURTHER ORDERED that this case be removed from the Magistrate Court’s docket and returned to the docket of the Honorable David A. Ezra.

VI. Warnings
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except on grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on June 15, 2021.

All Citations
Slip Copy, 2021 WL 2444951

Footnotes

1
Plaintiff filed his response after the deadline. Local Rule CV-7(e)(2). Because the Motion is dispositive, the Court has considered Plaintiff’s late-filed response and evidence. See Johnson v. Pettiford, 442 F.3d 917, 918-19 (5th Cir. 2006) (stating that failure to timely respond to dispositive motion should not result in automatic grant absent clear record of delay or contumacious conduct).

2021 WL 2413329
CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY.
Court of Appeals of Ohio, Eleventh District, Trumbull County.
SUSAN QUINONES, AS LEGAL GUARDIAN OF DAVID N. SCHEEHLE, et al., Plaintiffs-Appellants,
v.
OLANYANJU LADEJO, et al., Defendants,
PROSERV LOGISTICS LLC, Defendant-Appellee.
CASE NO. 2021-T-0003
|
Decided: June 14, 2021
Civil Appeal from the Court of Common Pleas
Trial Court No. 2020 CV 00883
Judgment: Reversed and remanded.
Attorneys and Law Firms
Christopher J. Van Blargan, Kisling, Nestico & Redick, LLC, 3412 West Market Street, Akron, OH 44333 (For Plaintiffs-Appellants).
Kurt D. Anderson and Patrick M. Roche, Collins, Roche, Utley & Garner, LLC, 875 Westpoint Parkway, Suite 500, Cleveland, OH 44145 (For Defendant-Appellee).

OPINION
THOMAS R. WRIGHT, J.
*1 { ¶1} Appellants, Joyce McKenzie and Susan Quinones, the mother and the guardian of David N. Scheehle, respectively, appeal from the judgment dismissing their complaint. We reverse and remand.

{ ¶2} This case stems from a vehicle collision on the Ohio Turnpike where a commercial tractor-trailer operated by an employee of Wisconsin Trucks, Inc. (“Wisconsin Trucks”) rear-ended Scheehle’s vehicle. As a result of the collision, Scheehle sustained serious injuries. Appellants filed a complaint against several parties including Wisconsin Trucks and its freight broker, ProServ Logistics, LLC (“ProServ”). Appellants maintained that Wisconsin Trucks, ProServ, and others were vicariously liable for the truck driver’s negligence, that they negligently entrusted the truck driver with the tractor-trailer, and that they breached their duties as “employers, brokers, or shippers to exercise reasonable care in hiring competent drivers’ and/or carriers and in instructing, training, supervising, and retaining driver and/or carriers.”

{ ¶3} Thereafter, ProServ filed a motion to dismiss, arguing that appellants’ claims against it were preempted by the Federal Aviation Administration Authorization Act (“FAAAA”).

{ ¶4} On December 23, 2020, the trial court dismissed appellants’ claims against ProServ. On January 8, 2020, the trial court entered an entry nunc pro tunc to the December 23, 2020 judgment finding there was no just cause for delay pursuant to Civ.R. 54(B).

{ ¶5} Appellants assign one error:

{ ¶6} “The trial court erred in finding the FAAAA preempted Quinones’ claim of vicarious liability and negligent selection, supervision, and retention, and in dismissing those claims for lack of subject matter jurisdiction under Civil Rule 12(B)(1).”

{ ¶7} We review a trial court’s dismissal pursuant to Civ.R. 12(B)(1) de novo.1 Jones v. Ohio Edison Co., 2014-Ohio-5466, 26 N.E.3d 834, ¶ 7 (11th Dist.), citing Washington Mut. Bank v. Beatley, 10th Dist. Franklin No. 06AP-1189, 2008-Ohio-1679, ¶ 8.

{ ¶8} The Supremacy Clause of the United States Constitution provides that the U.S. Constitution and “the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Constitution, Article VI, cl. 2. The Supremacy Clause gives Congress the power to preempt state law. Minton v. Honda of Am. Mfg., Inc., 80 Ohio St.3d 62, 68, 684 N.E.2d 648 (1997), abrogated on other grounds as stated in Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). However, “[i]t has ‘long been settled’ that a preemption analysis begins with the presumption that federal statutes do not preempt state law.” (Emphasis added.) State v. CSX Transp., Inc., 2020-Ohio-2665, 154 N.E.3d 327, ¶ 13 (3d Dist.), appeal allowed, 159 Ohio St.3d 1486, 2020-Ohio-4232, 151 N.E.3d 635, ¶ 13, quoting Bond v. United States, 572 U.S. 844, 858, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014); Minton at 69 (“[I]n considering issues arising under the Supremacy Clause, courts must start with the assumption that the historic police powers of the states are not to be superseded by federal law unless that is the clear and manifest purpose of Congress.” (Citations omitted.)).

*2 { ¶9} At issue here is the preemptive effect of the FAAAA:
After deregulating trucking through the Motor Trucking Act of 1980, Congress enacted the Federal Aviation Authorization Administration Act (“FAAAA”) in 1994 in an effort to avoid “a State’s direct substitution of its own governmental commands for ‘competitive market forces’ in determining (to a significant degree) the services that motor carriers will provide.”
Creagan v. Wal-Mart Trans., LLC, 354 F.Supp.3d 808, 812 (N.D.Ohio 2018), quoting Rowe v. New Hampshire Motor Transport Assn., 552 U.S. 364, 368, 372, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008). The general express preemption clause of the FAAAA provides in relevant part: “Except as provided in paragraphs (2) and (3), a State * * * may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a * * * service of any * * * broker * * * with respect to the transportation of property.” 49 U.S.C. 14501(c)(1); see also Minton at 69 (state law may be preempted through express, field, or conflict preemption). Common law duties are within the scope of the “law[s], rule[s], regulation[s], or other provision[s] having the force of law” for purposes of the FAAAA. See Krauss v. IRIS USA, Inc., E.D.Pennsylvania No. 17-778, 2018 WL 2063839, *4 (May 3, 2018); see also Gillum v. High Std., LLC, W.D.Texas No. SA-19-CV-1378-XR, 2020 WL 444371, *3 (Jan. 27, 2020); see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 522, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (“the phrase ‘state law’ [includes] common law as well as statutes and regulations”).

{ ¶10} Here, the parties do not dispute that ProServ is a “broker” for purposes of the FAAAA. See 49 U.S.C. 13102(2) (broker is “a person, other than a motor carrier * * * that as a principal or agent sells, offers for sale, negotiates for, or holds itself out * * * as selling, providing, or arranging for, transportation by a motor carrier for compensation”). Instead, the parties argue whether the negligence claim is “related to” a broker’s “services” with respect to the transportation of property.

{ ¶11} “The FAAAA’s preemption provision was modeled on similar language in the Airline Deregulation Act of 1978, which had already been interpreted by the Supreme Court in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).” Krauss at *3, citing Rowe at 368. Therefore, courts similarly interpret the preemption provisions of the FAAAA and the ADA. Id. In interpreting these provisions, the phrase “related to” is broadly construed in accordance with its ordinary usage: “ ‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association or connection with.’ ” United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 335 (1st Cir.2003), citing Morales at 383, quoting Black’s Law Dictionary 1158 (5th ed.1979). Therefore, if the state law at issue “refers to and has a forbidden significant effect” on the “service of [a] broker * * * with respect to the transportation of property,” such a law would come within the scope of the general preemption provision. See United Parcel Serv. at 335; Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260, 133 S.Ct. 1769, 185 L.E.2d 909 (2013). See also Rowe at 375, quoting Morales at 388 (“[S]tate laws whose ‘effect’ is ‘forbidden’ under federal law are those with a ‘significant impact’ on carrier rates, routes, or services.” (Emphasis sic.)).

*3 { ¶12} However, “ ‘the breadth of the words “related to” does not mean the sky is the limit.’ ” Loyd v. Salazar, 416 F.Supp.3d 1290, 1295-96 (W.D.Oklahoma 2019), quoting Dan’s City Used Cars at 260. “The Supreme Court has ‘cautioned that [section] 14501(c)(1) does not preempt state laws affecting carrier prices, routes, and services in only a tenuous, remote, or peripheral manner.’ ” Loyd at 1295, quoting Dan’s City Used Cars at 261. “Federal district courts are sharply divided on how to apply these guiding principles to personal injury claims alleging negligence by brokers in selecting motor carriers for the transportation of property.” Loyd at 1295. See, e.g., Ciotola v. Star Transp. & Trucking, LLC, 481 F.Supp.3d 375, 390 (M.D.Pennsylvania 2020) (negligence claim not preempted because claim “does not directly reference prices, routes, or services of a broker or motor carrier, and does not place a significant financial impact on a broker or motor carrier’s prices, routes, or services”). But see, e.g., Loyd at 1297-1298 (state-law negligent brokering claim is directly “related to” a broker’s “services” of arranging for motor carriers to transport property).

{ ¶13} Appellants contend that because “[n]egligence claims alleging personal injury result[ing] from the failure of a business to use reasonable or ordinary care are generally applicable to all businesses,” and because “such claims do not target the motor carrier industry,” the claims only tangentially affect a broker’s services. This argument finds support in the decisions of several federal district courts as discussed above and is consistent with the principle that “[i]n the interest of avoiding unintended encroachment on the authority of the States, * * * a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663-664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). “There could be no better example of a subject which is ‘traditionally governed by state law’ than a common-law tort claim.” In re Miamisburg Train Derailment Litigation, 68 Ohio St.3d 255, 261, 626 N.E.2d 85 (1994).

{ ¶14} However, given the broad language employed in the general preemption provision, and because the negligence claim pertains to the selection of carriers, which is the core function of a broker by statutory definition, we are persuaded by the analysis of Creagan, 354 F.Supp.3d at 813, on this issue. Therein, the court reasoned with respect to the general preemption provision:
While the FAAAA provides no definition of “services,” it defines transportation to include “services related to th[e] movement [of passengers or property], including arranging for” the transportation of passengers or property. 49 U.S.C. § 13102(23)(B). A broker does just that– “arrange for” the transportation of a shipment by a motor carrier. See 49 U.S.C. § 13102(2). Regardless of whether the broker’s alleged negligence in its choice of motor carrier results in property damage or personal injury, the service remains the same. * * * Further, because the negligent hiring claim seeks to enforce a duty of care related to how Kirsch (the broker) arranged for a motor carrier to transport the shipment (the service), the claim falls squarely within the preemption of the FAAAA.
(Footnotes and internal citations omitted.) Id. See also Loyd, 416 F.Supp.3d at 1297; Gillum, 2020 WL 444371, at *4. Moreover, the only federal circuit court to have reviewed this issue has also found that such negligence claims against a broker fall within the scope of the general preemption provision. See Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1023 (9th Cir.2020).

{ ¶15} Nonetheless, appellants argue that even should the negligence claims relate to the broker’s services and fall within the general preemption provision, the claims are saved by 49 U.S.C. 14501(c)(2)(A), which excepts from preemption
*4 the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization[.]
“Congress’ clear purpose in § 14501(c)(2)(A) is to ensure that its preemption of States’ economic authority over motor carriers of property, § 14501(c)(1), ‘not restrict’ the preexisting and traditional state police power over safety.” City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 439, 122 S.Ct. 2226 (2002).

{ ¶16} As with interpretation of section 14501(c)(1), there is a split in the federal district courts as to whether the safety regulation exception in section 14501(c)(2)(A) saves negligence claims against brokers when the contracted carrier is involved in a vehicle collision. See, e.g., Lopez v. Amazon Logistics, Inc., 458 F.Supp.3d 505, 515 (N.D.Texas 2020) (“Because it is feasible to read ‘state safety regulatory authority’ as encompassing common law claims, the Court declines to adopt a plausible but narrower construction.”). But see, e.g., Krauss, 2018 WL 2063839, at *5 (“The Court concludes that it is more true to persuasive precedential and common-sense analysis to hold that the claim for personal injuries arising out of the shipment in this case is preempted.”).

{ ¶17} The best evidence of Congress’ pre-emptive intent is statutory language. Dan’s City Used Cars, 569 U.S. at 260. Based upon the language of the safety regulatory exception, the Creagan court concluded that the exception did not save a negligence claim against a broker. The court reasoned, “Because the negligent hiring claim seeks to impose a duty on the service of the broker rather than regulate motor vehicles, * * * this claim is not within the safety regulatory authority of the state and the exception does not apply.” (Emphasis added.) Creagan, 354 F.Supp.3d at 814.

{ ¶18} However, in Miller, 976 F.3d at 1026, the Ninth Circuit concluded that the safety regulatory exception saved negligence claims against brokers. The Miller court emphasized that in enacting the FAAAA, “Congress was primarily concerned with the States regulating economic aspects of the trucking industry by, for example, enacting tariffs, price regulations, and other similar laws” and not with restricting the safety authority of the state. (Emphasis sic.) Id. The Miller court reasoned that the state’s authority over safety matters includes “the ability to regulate safety through common-law tort claims.” Id. Further, the court found that nothing in the FAAAA’s legislative history suggested that “Congress intended to eliminate this important component of the States’ power over safety.” Id.

{ ¶19} Moreover, the Miller court noted that, “while it is possible to construe ‘the safety regulatory authority of a State’ more narrowly, ‘when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” ’ ” Id. at 1027, quoting CTS Corp. v. Waldburger, 573 U.S. 1, 19, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014), quoting Altria Grp., Inc. v. Good, 555 U.S. 70, 77, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008). The court then determined:
*5 Because a narrower construction of this clause would place a large body of state law beyond the reach of the exception, we find it appropriate to interpret the clause broadly. See id. (describing this approach as “consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety[.]”).
Miller at 1028, quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). The Miller court rejected the broker’s argument that the U.S. Supreme Court’s use of the term “police power” in Ours Garage when describing the state’s safety regulatory authority indicated that the exception extends only to positive legislative enactments. Miller at 1028, citing Ours Garage, 536 U.S. at 439. The Miller court concluded:
[T]his argument reads too much into Ours Garage. At issue in that case were municipal regulations governing tow truck operations—an undisputed exercise of the “safety regulatory authority of a State” and of the “police power.” The Supreme Court therefore had no reason to consider whether the safety exception is broader than this language suggests. And, as noted, we have found no indication in the FAAAA’s legislative history that Congress intended to limit the safety exception in this way.
Miller at 1028.

{ ¶20} Further, the Miller court explained that the safety regulatory exception for negligence claims against brokers is with respect to “motor vehicles”:
We have previously held that the phrase “with respect to” in the safety exception is synonymous with “relating to.” [California Tow Truck Assn. v. City & Cty. of San Francisco, 807 F.3d 1008, 1021 (9th Cir.2015), quoting In re Plant Insulation Co., 734 F.3d 900, 910 (9th Cir.2013)]. “Consequently, the FAAAA’s safety exception exempts from preemption safety regulations that ‘hav[e] a connection with’ motor vehicles,” whether directly or indirectly. Id. at 1021-22[, quoting] Dan’s City Used Cars, 569 U.S. at 260, 133 S.Ct. 1769[.] For example, we have held that the safety exception applies to municipal regulations governing who may obtain a tow truck permit, including a requirement that permit applicants disclose their criminal history. Id. at 1026-27. In reaching this conclusion, we rejected the argument that the “valid safety rationales” in this context are limited “to those concerned only with the safe physical operation of the tow trucks themselves.” Id. at 1023. “Rather, regulations that are ‘genuinely responsive’ to the safety of other vehicles and individuals involved in the towing process may also be exempted from preemption.” Id.
(Footnotes omitted.) Miller at 1030.

{ ¶21} We find Miller persuasive. Accordingly, we conclude that the safety regulatory exception in 49 U.S.C. 14501(c)(2)(A) saves the negligence claims at issue here.

{ ¶22} Nonetheless, ProServ maintains that we should afford the Creagan decision comity because Creagan is the only decision from the Northern District of Ohio to speak to the issue presented. ProServ’s argument in this regard has evolved from its argument before the trial court, where ProServ maintained that the Creagan decision was binding. Regardless, ProServ has not cited any convincing authority persuading this court to provide comity to a federal district court merely because it is located within the geographic territory of the federal circuit where the underlying incident occurred.

*6 { ¶23} Therefore, the assigned error has merit, and the judgment is reversed. This matter is remanded for further proceedings consistent with this opinion.

MARY JANE TRAPP, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
All Citations
Slip Copy, 2021 WL 2413329, 2021-Ohio-1988

Footnotes

1
In the trial court, appellants maintained that the more appropriate procedure to challenge their complaint would have been through a Civ.R.12(B)(6) motion for failure to state a claim on which relief could be granted. However, because appellants have not raised this issue as error, and because the parties do not appear to presently dispute the relevant facts required for review, we do not pass upon this issue. See Washington Mut. Bank v. Beatley, 10th Dist. Franklin No. 06AP-1189, 2008-Ohio-1679, ¶ 8-13 (noting that trial court may consider facts outside of the allegations of the complaint when deciding a motion for dismissal pursuant to Civ.R. 12(B)(1), whereas the court is confined to the four corners of the complaint when deciding a motion for dismissal pursuant to Civ.R. 12(B)(6)).