United States Court of Appeals for the Fifth Circuit

June 16, 2022, Filed

No. 20-30716

Reporter

2022 U.S. App. LEXIS 16709 *; __ F.4th __

BENJAMIN FOX, INDIVIDUALLY ; ON BEHALF OF MINOR CHILDREN E F ; N F; HOLLY FOX, INDIVIDUALLY ; ON BEHALF OF MINOR CHILDREN E F ; N F, Plaintiffs—Appellees, versus NU LINE TRANSPORT, L.L.C., Defendant—Appellant.

Prior History:  [*1] Appeal from the United States District Court for the Western District of Louisiana. USDC No. 2:18-CV-502.

Fox v. Nu Line Transp. LLC, 2020 U.S. Dist. LEXIS 197392, 2020 WL 6155252 (W.D. La., Oct. 20, 2020)

Core Terms

supervision, training, district court, certify, vicariously liable, partial, negligent hiring, summary judgment, questions

Counsel: For Benjamin Fox, individually & on behalf of minor children E F & N F, Holly Fox, individually & on behalf of minor children E F & N F, Plaintiffs – Appellees: Aaron James Broussard, Rachel Kovach Couvillion, Michael Jason Williamson, Broussard & Williamson, L.L.C., Lake Charles, LA.

For Nu Line Transport, L.L.C., Defendant – Appellant: Guy D. Perrier, Esq., Kristopher Gould, Perrier & Lacoste, L.L.C., New Orleans, LA.

Judges: Before DENNIS and ENGELHARDT, Circuit Judges, and HICKS, Chief District Judge.^*.

Opinion

Per Curiam:

This interlocutory appeal presents a single question: as a matter of Louisiana law, can a plaintiff maintain both (1) a cause of action against an employee for negligence for which the plaintiff seeks to hold the employer vicariously liable by alleging that the employee was acting in the course and scope of his employment, and (2) a cause of action directly against the employer for negligent hiring, training, or supervision, (3) when the employer stipulates or admits that the employee was acting within the course and scope of his employment at the time of the employee’s alleged [*2]  negligence? No state statute or Louisiana Supreme Court decision answers this question. As explained below, we have decided to certify the question to the Louisiana Supreme Court.

I.

During a winter ice storm, Benjamin Fox, a trooper with the Louisiana State Police, was responding to a car crash on Interstate 10 in Calcasieu Parish. Simon Brumfield, driving a tractor-trailer owned by Nu Line Transport, crashed into the parked vehicle in which Fox was sitting. Benjamin Fox and his wife Holly, on behalf of themselves individually and their two minor children, filed a lawsuit in state court seeking damages for personal injury and loss of consortium.¹ The Foxes alleged that the crash was proximately caused by (1) negligence on the part of Brumfield (for which the Foxes sought to hold Nu Line vicariously liable), and (2) negligence on the part of Nu Line in its hiring, training, and supervision of Brumfield.² Defendants timely removed to federal court.

Nu Line thereafter stipulated, in the form of a written filing with the court, that Brumfield was acting in the course and scope of his employment with Nu Line at the time of the accident. On the same day, Nu Line moved for partial summary judgment [*3]  seeking dismissal of plaintiffs’ negligent hiring, training, and supervision claim. Nu Line, relying on Dennis v. Collins, No. 15-2410, 2016 U.S. Dist. LEXIS 155724, 2016 WL 6637973 (W.D. La. Nov. 9, 2016), asserted that, as a matter of Louisiana law, a plaintiff cannot maintain both (1) a claim against an employee for negligence that occurred in the course and scope of employment for which an employer would be vicariously liable under the doctrine of respondeat superior, and (2) a direct claim against the employer for negligent hiring, training, or supervision, (3) when the employer stipulates or admits that the employee was acting in the course and scope of employment at the time of the alleged negligence, and therefore is vicariously liable for any negligence. The district court initially granted the motion and dismissed the direct negligence claims against Nu Line. Fox v. Nu Line Transp. LLC, No. 2:18-CV-502, 2019 U.S. Dist. LEXIS 155657, 2019 WL 4316955 (W.D. La. Sept. 11, 2019). Subsequently, the same district court judge denied a motion raising the same legal arguments in another auto accident case, Roe v. Safety National Casualty Corporation, No. 2:18-CV-1353, 2020 U.S. Dist. LEXIS 112156, 2020 WL 3477071 (W.D. La. June 25, 2020), which prompted the Foxes to move for reconsideration. The district court, reversing course, granted the Foxes’ motion, vacated its earlier partial judgment, and denied Nu Line’s motion for partial summary judgment. Fox, 2020 U.S. Dist. LEXIS 136738, 2020 WL 4432869 (W.D. La. July 31, 2020).

Nu Line then moved for the district court to certify its partial judgment for [*4]  interlocutory appeal to this court under 18 U.S.C. § 1292(b), which the Foxes opposed. The district court granted the motion. Fox, 2020 U.S. Dist. LEXIS 197392, 2020 WL 6155252 (W.D. La. Oct. 20, 2020). Agreeing with Nu Line and the district court that the partial judgment “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” we exercised our discretion to permit the appeal. The Foxes then filed a motion in this court, opposed by Nu Line, urging that a certified question be submitted to the Louisiana Supreme Court. The motion to certify was carried with the case. The motion to certify will be GRANTED.

II.

The main case that Nu Line relies on is Dennis v. Collins. In Dennis, the plaintiff alleged (1) negligent driving by a Greyhound bus driver, and (2) negligent supervision and training by Greyhound. 2016 U.S. Dist. LEXIS 155724, 2016 WL 6637973, at *1. Greyhound stipulated that the driver was acting in the course and scope of employment and moved for partial summary judgment on the negligent supervision and training claims. Id. The district court granted summary judgment in favor of the employer on the negligent supervision and training claim. Id. The court reasoned that if the employee was [*5]  negligent, then Greyhound would be vicariously liable, but if the employee was not negligent, then no amount of negligence on the part of Greyhound in its supervision and training of the employee could be the cause-in-fact or proximate cause of the plaintiff’s injury. 2016 U.S. Dist. LEXIS 155724, [WL] at *7-8. In so ruling, Dennis relied primarily on a state appellate decision reviewing a challenge to jury instructions. 2016 U.S. Dist. LEXIS 155724, [WL] at *2-3, 7-8 (citing Libersat v. J & K Trucking, Inc., 772 So. 2d 173 (La. App. 3rd Cir. 2000), writ denied, 789 So. 2d 598 (La. 2001)).

The Foxes contend that Dennis is inconsistent with the Louisiana Civil Code’s pure comparative fault system, see La. Civ. Code arts. 2323 & 2324, and with Louisiana Supreme Court decisions, including Roberts v. Benoit, which characterize the negligent hiring, training, and supervision theory of liability as “separate and independent” from an employer’s vicarious liability for its employees under the doctrine of respondeat superior. 605 So. 2d 1032, 1036-37 (La. 1991), aff’d on reh’g (1992). In siding with the Foxes, the district court in this case followed its earlier decisions in Roe v. Safety National Casualty Corporation and Gordon v. Great West Casualty Company, No. 2:18-CV-967, 2020 U.S. Dist. LEXIS 112281, 2020 WL 3472634 (W.D. La. June 25, 2020). In addition to the Civil Code’s comparative fault articles and Roberts, the Roe court also relied on policy considerations, stating that the rule from Dennis undermined the “deterrent aims of tort law” by “exclud[ing] evidence [*6]  . . . of [the employer’s] direct negligence” and reasoning that “[w]here an employer’s potential fault is merged with that of the employee, the jury might not have a true picture of either party’s wrongful acts—which may, in turn, magnify the comparative fault of the plaintiff or other individuals.” 2020 U.S. Dist. LEXIS 112156, 2020 WL 3477071, at *4. District courts that have followed Dennis have referenced competing policy interests, including judicial efficiency and the avoidance of confusing or prejudicing the jury by introduction of evidence of employer negligence. See, e.g., Rivera v. Robinson, No. 18-14005, 2020 U.S. Dist. LEXIS 176545, 2020 WL 5752851, at *6 (E.D. La. Sept. 25, 2020); see also Thomas v. Chambers, No. 18-4373, 2019 U.S. Dist. LEXIS 65900, 2019 WL 1670745, at *7 (E.D. La. Apr. 17, 2019). Roe countered that these same policy interests could be served by other means—”through motions for summary judgment based on lack of evidence, motions in limine, and jury instructions.” 2020 U.S. Dist. LEXIS 112156, 2020 WL 3477071, at *5.

III.

The Louisiana Supreme Court will consider certified questions from federal circuit courts of appeals so long as the question certified is “determinative of said cause independently of any other questions involved in said case” and “there are no clear controlling precedents in the decisions” of the state supreme court. La. Sup. Ct. R. 12(1). Before this court, the Foxes filed a motion for certification to the Louisiana Supreme Court. We agree that this question should be certified. First, [*7]  the sole question presented for certification is “determinative” of this appeal and can be resolved “independently of any other questions[.]” Second, there is no definitive Louisiana Supreme Court precedent on this question. Further, the resolution of this question has implications for the competing state policy interests underlying Louisiana tort law. Compare Roe, 2020 U.S. Dist. LEXIS 112156, 2020 WL 3477071, at *5, with Rivera, 2020 U.S. Dist. LEXIS 176545, 2020 WL 5752851, at *6. Accordingly, the motion to certify that was previously carried with the case is now GRANTED.

* * *

TO THE SUPREME COURT OF LOUISIANA AND THE HONORABLE JUSTICES THEREOF:

In accord with Rule XII of the Rules of the Louisiana Supreme Court, upon motion of a party it appears to this court that this proceeding involves a question or proposition of Louisiana state law that is determinative of said cause independently of any other questions involved in said case and that there are no clear controlling precedents in the decisions of the Louisiana Supreme Court. Therefore, before rendering a decision, this court certifies the following question of law to the Louisiana Supreme Court for rendition of a judgment or opinion concerning such questions or propositions of Louisiana law.

a. Style of the Case

The style of this case is Benjamin Fox, Individually; on Behalf of Minor Children Ef; [*8]  Nf; Holly Fox, Individually; on Behalf Of Minor Children Ef; Nf, Plaintiffs—Appellees, Versus Nu Line Transport, L.L.C., Defendant—Appellant.

b. Statement of Facts

The statement of facts, showing the nature of the cause and the circumstances out of which the question or proposition of law arises, is provided above.

c. Question of Law

The question that we certify to the Supreme Court of Louisiana is:

Under Louisiana law, can plaintiffs, Benjamin and Holly Fox, individually and on behalf of their minor children EF and NF, simultaneously maintain (1) a direct negligence claim against Nu Line for negligent hiring, training, and supervision of its employee Simon Brumfield and (2) a negligence claim against Brumfield for which Nu Line could be held vicariously liable under respondeat superior, (3) after Nu Line has stipulated that Brumfield was in the course and scope of employment when the alleged negligence occurred?

We disclaim any intent that the Louisiana Supreme Court confine its reply to the precise form or scope of the legal question we certify. If the Louisiana Supreme Court accepts this certificate, its answer will determine the outcome of this appeal. We transfer to the Louisiana Supreme [*9]  Court the record and appellate briefs with our certification. This panel retains cognizance of this appeal pending the Louisiana Supreme Court’s response, and this appeal shall return to this panel upon completion of consideration by the Louisiana Supreme Court.

QUESTION CERTIFIED.

End of Document

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^* Chief Judge of the Western District of Louisiana, sitting by designation.

¹ In addition to Brumfield and Nu Line, the Foxes also joined as defendants Nu Line’s insurer, American Millennium Insurance Company, and their own insurer, Safeco Insurance Company of Oregon.

² Specifically, the complaint alleged the following acts of negligence by Nu Line: (1) Negligent training of Brumfield on the safe operation of motor vehicles used in his employment; (2) negligent hiring; (3) negligent supervision; (4) allowing drivers to operate in icy conditions; (5) failure to warn drivers of icy conditions; (6) failure to design and enforce a standard operating procedure for driving in icy conditions; and (7) any other negligent acts revealed through discovery.

United States District Court for the Eastern District of Louisiana

May 31, 2022, Decided; May 31, 2022, Filed

CIVIL ACTION NO. 20-2774 SECTION: H(1)

Reporter

2022 U.S. Dist. LEXIS 96360 *; 2022 WL 1748358

RALPH HEBERT ET AL. VERSUS HALLMARK COUNTY MUTUAL INSURANCE CO. ET AL.

Subsequent History: Partial summary judgment granted by, in part, Partial summary judgment denied by, in part, Claim dismissed by Hebert v. Hallmark Cnty. Mut. Ins. Co., 2022 U.S. Dist. LEXIS 99253 (E.D. La., June 2, 2022)

Core Terms

summary judgment, non-movant, vicariously, negligence claim, genuine

Counsel:  [*1] For Ralph Hebert, Jeanne Hebert, Plaintiffs: Richard Julius Fernandez, LEAD ATTORNEY, Amber E. Cisney, Richard J. Fernandez, LLC, Metairie, LA; Douglas Cooper Fournet, Hoffoss Devall, LLC, Lake Charles, LA.

For Hallmark County Mutual Insurance Company, Mugisha Logistics, LLC, Defendants: Robert Emmett Kerrigan, Jr., LEAD ATTORNEY, Jonathan M. Walsh, Deutsch Kerrigan & Stiles LLP (New Orleans), New Orleans, LA; Betty Marianne Wise, Deutsch Kerrigan, LLP, New Orleans, LA; Maxwell C Hadley, Deutsch Kerrigan. LLC, New Orleans, LA.

Judges: JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE.

Opinion by: JANE TRICHE MILAZZO

Opinion

ORDER AND REASONS

Before the Court is Defendant Hallmark County Mutual Insurance Company and Defendant Mugisha Logistics, LLC’s Motion for Partial Summary Judgment (Doc. 31). For the following reasons, this Motion is GRANTED.

BACKGROUND

This case arises out of an automobile accident. On February 18, 2020, Plaintiff Ralph Hebert was driving his vehicle northbound on Highway 61 in St. Charles Parish, Louisiana. Maloba Onyango, driving his employer’s vehicle for work, was heading southbound on the same highway and allegedly made an unlawful left turn, crashing into Mr. Hebert. Onyango’s employer was [*2]  Defendant Mugisha Logistics, LLC. Defendant Hallmark County Mutual Insurance Co. (“Hallmark County”) was the vehicular liability insurer for Mugisha Logistics.

Mr. Hebert and his wife, Plaintiff Jeanne Hebert, sued Hallmark County, Mugisha Logistics, and Mr. Onyango in state court in St. Charles Parish. Defendants removed the case to this Court on the basis of diversity jurisdiction. Plaintiffs have since dismissed Mr. Onyango from this action. In addition to a claim against Mugisha Logistics based on vicarious liability for Mr. Onyango’s fault, Plaintiffs asserted other negligence claims against the company directly.¹

Now before the Court is Defendants Motion for Partial Summary Judgment.² Defendants move for summary judgment with respect to Plaintiffs’ negligence claims against Mugisha Logistics because the company has admitted that Mr. Onyango was at fault for the accident and that it is vicariously liable as a result. To date, Plaintiffs have not filed an opposition to Defendants’ Motion.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine [*3]  issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”³ A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”⁴

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in her favor.⁵ “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”⁶ Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.”⁷ “In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at trial.” [*4] ⁸ “We do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”⁹ Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”¹⁰

LAW AND ANALYSIS

Defendants argue that given their admission that Mr. Onyango was at fault for the subject accident and that he was in the course and scope of his employment at the time, Plaintiffs cannot maintain their claims of negligent entrustment and the like.

Having filed no opposition, Plaintiff provides no response to this argument. However, “[a] motion for summary judgment cannot be granted simply because there is no opposition.”¹¹ “The movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the court may not grant the motion, regardless of whether any response was filed.”¹²

There is no binding precedent under Louisiana law controlling the issue raised by Defendants.¹³ “If there is no ruling by the state’s highest court on the specific question, the Court must make an Erie guess as to how the state’s highest court would decide the issue.”¹⁴ Several courts, including this one, have recently [*5]  engaged in making an Erie guess on this issue and have sided with Defendants.¹⁵ Indeed, “[s]ections of this Court and other federal district courts in Louisiana have uniformly held that, when an employer is indisputably vicariously liable for the negligent acts of its employee, the plaintiff cannot also maintain a direct negligence claim against the employer.”¹⁶

In Thomas v. Chambers, the plaintiff was injured in a car accident involving a tractor-trailer operated by Randall Chambers, an employee of God’s Way Trucking, LLC (“God’s Way”).¹⁷ The plaintiff brought claims against Chambers for his negligence and against God’s Way for vicarious liability and its independent negligence for negligently hiring, training, supervising, and entrusting Chambers.¹⁸ The court held “that plaintiffs may not maintain both a direct negligence claim against God’s Way and a claim that God’s Way is vicariously liable for Chambers’s negligence, because God’s Way readily admits that it is vicariously liable for Chambers’s alleged negligence.”¹⁹ In so holding, the court made an Erie guess in reliance on the Louisiana Third Circuit Court of Appeal’s decision in Libersat v. J & K Trucking, Inc.²⁰ In Libersat, the appellate court held that [*6]  the district court did not err in failing to instruct the jury on the employer’s duty regarding hiring and training when it “equated respondeat superior to all possible theories of recovery.”²¹ The court explained that:

If Mr. Mitchell [the employee] breached a duty to the Appellants, then Patterson [his employer] is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the Appellants then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the Appellants.²²

The logic of Libersat is even clearer in the case at hand because Mugisha Logistics has admitted not only its vicarious liability but also Mr. Onyango’s fault. Accordingly, the Court grants summary judgment with respect to Plaintiff’s direct negligence claims against Mugisha Logistics.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that Defendants’ Motion for Partial Summary Judgment on Maintenance and Cure (Doc. 31) is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs’ direct negligence claims against Mugisha Logistics are DISMISSED WITH PREJUDICE.²³

New Orleans, Louisiana this 31st day of May, 2022

/s/ Jane Triche Milazzo

JANE TRICHE MILAZZO

UNITED STATES [*7]  DISTRICT JUDGE

End of Document

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¹ See Doc. 1-2 at ¶¶ 13-23, 31-63.

² See Doc. 31.

³ Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

⁴ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

⁵ Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

⁶ Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

⁷ Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

⁸ John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (internal citations omitted).

⁹ Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

¹⁰ Boudreaux v. BanTec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

¹¹ Day v. Wells Fargo Bank Nat. Ass’n, 768 F.3d 435, 435 (5th Cir. 2014) (quoting Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)).

¹² Hibernia Nat. Bank, 776 F.2d at 1279.

¹³ Wright v. Nat’l Interstate Ins. Co., No. CV 16-16214, 2017 U.S. Dist. LEXIS 184182, 2017 WL 5157537, at *2 (E.D. La. Nov. 7, 2017).

¹⁴ Thomas v. Chambers, No. CV 18-4373, 2019 U.S. Dist. LEXIS 65900, 2019 WL 1670745, at *6 (E.D. La. Apr. 17, 2019).

¹⁵ Id.; Wright, 2017 U.S. Dist. LEXIS 184182, 2017 WL 5157537, at *2; Smith-Jordan v. Love, No. 19-14699, 2022 U.S. Dist. LEXIS 13874, 2022 WL 226513 (E.D. La. Jan. 26, 2022); Dennis v. Collins, No. CV 15-2410, 2016 U.S. Dist. LEXIS 155724, 2016 WL 6637973, at *8 (W.D. La. Nov. 9, 2016); Coffey v. Knight Refrigerated, LLC, No. CV 19-3981, 2019 U.S. Dist. LEXIS 189873, 2019 WL 5684258, at *3 (E.D. La. Nov. 1, 2019); Franco v. Mabe Trucking Co., Inc., No. 17-871, 2018 U.S. Dist. LEXIS 198263, 2018 WL 6072016, at *4 (W.D. La. Nov. 20, 2018); Vaughn v. Taylor, No. 18-CV-1447, 2019 U.S. Dist. LEXIS 5251, 2019 WL 171697, at *3 (W.D. La. Jan. 10, 2019); Wilcox v. Harco Int’l Ins., No. CV 16-187, 2017 U.S. Dist. LEXIS 97950, 2017 WL 2772088, at *3 (M.D. La. June 26, 2017).

¹⁶ Pigott v. Heath, No. CV 18-9438, 2020 U.S. Dist. LEXIS 18646, 2020 WL 564958, at *3 (E.D. La. Feb. 5, 2020) (cases cited therein).

¹⁷ Thomas, 2019 U.S. Dist. LEXIS 65900, 2019 WL 1670745, at *1.

¹⁸ Id.

¹⁹ 2019 U.S. Dist. LEXIS 65900, [WL] at *7.

²⁰ 772 So. 2d 173 (La. App. 3 Cir. 2000).

²¹ Id. at 179.

²² Id.

²³ These claims include counts II, III, and V from Plaintiffs’ Petition. See Doc. 1-2.