May 2022

Sanchez v. S&H Transp., Inc.

United States District Court for the Northern District of Oklahoma

April 25, 2022, Decided; April 25, 2022, Filed

Case No. 20-CV-0374-CVE-SH

Reporter

2022 U.S. Dist. LEXIS 74480 *; 2022 WL 1213127

MAURICIO SANCHEZ, Plaintiff, v. S&H TRANSPORTATION, INC., DENNIS D. WOOD, JOHN DOE, a business entity, JANE DOE, an individual, Defendants.

Core Terms

negligent entrustment, driving, collision, training, chattel, driver, partial summary judgment, supervision, negligent hiring, retention, time of a collision

Counsel: [*1] For Mauricio Sanchez, Plaintiff: John Paul Truskett, LEAD ATTORNEY, Truskett Law Firm PLLC, Tulsa, OK.

For S&H Transportation, Inc., a/k/a and/or d/b/a S&H Transportation a/k/a and/or d/b/a S&H a/k/a and/or d/b/a S&H Transport a/k/a and/or d/b/a S and H Transportation Inc. – a for profit business entity, S&H Transportation, S&H, S&H Transport, S and H Transportation Inc., Dennis D Wood, also known as, Dennis Wood, Defendants: Dan Steven Folluo, Rebecca Lynn Newman, LEAD ATTORNEYS, Rhodes Hieronymus Jones Tucker & Gable PLLC, TULSA, OK.

Judges: CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE.

Opinion by: CLAIRE V. EAGAN

Opinion

OPINION AND ORDER

Before the Court are defendant S&H Transportation, Inc.’s (S&H) motion for partial summary judgment (Dkt. # 42), plaintiff Mauricio Sanchez’s response (Dkt. # 48), plaintiff’s supplement to his response (Dkt. # 52), and S&H’s reply (Dkt. # 57). This case arises from a collision between plaintiff’s car and defendant Dennis D. Wood’s 2000 Kenworth semi-truck pulling a trailer for defendant S&H. On July 6, 2020, plaintiff filed a petition in the District Court of Tulsa County, Oklahoma alleging numerous claims for relief against defendants S&H, Wood, John Doe, and Jane Doe, including [*2] negligence, negligent entrustment, and negligent hiring, training, supervision, and retention. Dkt. # 2-1. On July 30, 2020, defendants S&H and Wood removed the case to federal court pursuant to 28 U.S.C. §§ 1332 and 1441. On December 27, 2021, defendant S&H moved for partial summary judgment on the issues of negligent entrustment and negligent hiring, training, supervision, and retention. Dkt. # 42, at 1.

The following facts are not in dispute: on January 6, 2019, while “driving within the course and scope of his employment with S&H[,]” defendant Wood “rear-ended [p]laintiff’s vehicle” on U.S. Highway 169. Dkt. # 42, at 1-2; Dkt. # 48, at 8, 11. Wood was the owner/operator of the 2000 Kenworth semi-truck (Dkt. # 42, at 2; Dkt. # 48, at 8), which was pulling a trailer for S&H, and driving under S&H’s U.S. Department of Transportation (DOT) authority. Dkt. # 48, 11; Dkt. # 57, at 2. On that day, plaintiff and Wood were both traveling southbound in the right lane on U.S. Highway 169, when Wood “drove his semi-tractor-trailer into the rear of [plaintiff’s] vehicle” traveling at “approximately 69 miles per hour.” Dkt. # 48, at 12; Dkt. # 57, at 2. “The impact caused [p]laintiff’s vehicle to spin around several [*3] times, leave the roadway and [plaintiff’s vehicle] caught fire and burned.” Dkt. # 48, at 13; Dkt. # 57, at 2. Wood “agrees that [p]laintiff had the right-of-way at the time of the collision.” Dkt. # 48, at 14; Dkt. # 57, at 4.

Wood “claims he was looking straight down the road[,]” his “vision was not obscured[,]” the road was “level, straight and dry[,]” and traffic was “pretty light[.]” Dkt. # 48, at 11; Dkt. # 57, at 2. Moreover, Wood “denies he was having any difficulties with his vision; denies using his phone at the time of the collision; and denies he was asleep at the time of the collision.” Dkt. # 48, at 12; Dkt. # 57, at 2. In his deposition, Wood confirmed that “he did not see [plaintiff’s] vehicle until he hit it . . . [and he] does not know why he didn’t see [the] vehicle until immediately prior to the crash.” Dkt. # 48, at 12; Dkt. # 57, at 2.

Although defendants have not produced any relevant driver’s logs, Wood testified under oath that he was driving for two to three hours before the collision, and that he had slept six to eight hours before starting the drive. Dkt. # 48-1, at 16, 95. S&H submitted Wood’s drug testing results, performed less than 24 hours after the accident, [*4] ¹ which confirm that Wood was negative for amphetamines, cocaine, opioids, phencyclidine, and marijuana. Dkt. # 57-2, at 1. Additionally, Wood testified that he had not had any alcohol within 48 hours of the collision. Dkt. #48-1, at 102-03.

At the time of the collision, Wood had a valid commercial driving license (CDL) and was “medically approved for professional driving.” Dkt. # 42, at 2; Dkt. # 42-6, at 5-8 (DOT medical examiner’s report); Dkt. # 48, at 10-11. One month prior to the collision, on December 4, 2018, Wood underwent a DOT medical evaluation for CDL certification. Dkt. # 42-6, at 5-8. The medical examiner noted that Wood had ear or hearing problems, high blood pressure, diabetes, a sleep disorder, and a body mass index (BMI) of 48.4.² Id. at 6-7. Notwithstanding, the examiner concluded that Wood’s health conditions are well-controlled with medication, hearing aids, and a CPAP machine; Wood “[m]eets standards, but periodic monitoring required”; and the examiner medically certified Wood for one year for purposes of his CDL. Id. at 6, 8.

Prior to the collision, Wood had worked for S&H for nearly 30 years, except for a several month hiatus in 2015.³ Dkt. # 57-1, at 17; Dkt. # [*5] 48, at 11. Moreover, Wood testified that he had been a truck driver for 40 years. Dkt. # 48-1, at 97. Documents submitted by S&H show that at the time that it re-hired Wood in 2015, S&H performed a criminal background check and social security number verification; verified the number of Federal Motor Carrier Safety Administration (FMCSA) reportable crashes (which was zero); verified Wood’s employment history with his most recent previous employer, Frontier Leasing, Inc.; performed a drug test; performed a motor vehicle record (MVR) search; administered a road test (which Wood passed); confirmed that Wood received S&H’s driver’s manual; provided Wood with various policies, including log accuracy, prohibiting mobile phone use, and certain emergency procedures. Dkt. # 57-1, at 1-30. Moreover, S&H administered a written test regarding various policies and safety procedures, and submitted Wood’s certificate of training, which included “[g]eneral safe operating procedures.” Id. at 34-36. Finally, S&H submitted Wood’s post-collision MVR, which indicates that prior to the January 6, 2019 incident, Wood had one moving violation (not in his professional capacity), and one traffic accident in [*6] his commercial vehicle, but no fault is indicated and it resulted in property damage only. Dkt. # 42-6, at 3.

II.

Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). “[A] party may file a motion for summary judgment at any time until 30 days after the close of all discovery[,]” Fed. R. Civ. P. 56(b), including before any discovery has been conducted. “Movants for summary judgment bear the initial burden of demonstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Silverstein v. Federal Bureau of Prisons, 559 F. App’x. 739, 752 (10th Cir. 2014); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a [*7] matter of law.” Id. at 250. In its review, the Court construes the record in the light most favorable to the party opposing summary judgment. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

III.

Defendant S&H moves for partial summary judgment on the following claims:

a. Negligent Entrustment

In his petition, plaintiff alleged that the “truck [d]efendant Wood was driving at the time of the collision was owned . . . and/or controlled by [d]efendant S&H[.]” Dkt. # 2-1, at 2. In his response to S&H’s motion for partial summary judgment, plaintiff concedes that Wood is the owner/operator of the semi-truck that rear-ended plaintiff’s vehicle. Dkt. # 48, at 8. Plaintiff–precluded from arguing that S&H entrusted the semi-truck to Wood–pivots his theory of liability and argues that S&H is liable for “entrusting an incompetent or unfit driver with the power to drive under [d]efendant S&H’s [DOT] authority, where that driver causes injuries to another while operating under that authority.” Id. at 9.

According to the Supreme Court of Oklahoma, unlike vicarious liability under a respondeat superior cause of action, negligent entrustment “is based on direct liability[.]” Fox v. Mize, 2018 OK 75, 428 P.3d 314, 320 (Okla. 2018). “Negligent Entrustment requires proof that an individual supplies a chattel for [*8] the use of another whom the supplier knows or should know is likely to use the chattel in a way dangerous and likely to cause harm to others.” Id. (internal quotations omitted). “Liability for negligent entrustment arises from the act of entrustment, not the relationship of the parties.” Id. (quoting Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, 306 P.3d 544, 550 (Okla. 2013)) (emphasis in original).

Here, plaintiff must demonstrate that 1) S&H supplied a chattel to Wood, and 2) S&H knew or should have known that Wood was likely to use the chattel in a dangerous way likely to cause harm to others. The Court is highly skeptical that DOT authority is chattel within the meaning of a negligent entrustment claim.⁴ Even if, assuming arguendo, that DOT authority is chattel, plaintiff’s claim still fails, because he is unable to sufficiently show that S&H knew or should have known that entrusting its DOT authority to Wood was dangerous and likely to cause harm to others. Specifically, prior to the January 6, 2019 collision, Wood was medically cleared to drive pursuant to DOT standards, had a valid CDL, and his MVR shows an unremarkable traffic history–one traffic collision since 2015 in which he was not assigned fault. Moreover, there is no evidence to show that Wood [*9] was sleep deprived or exceeded his legal hours of service. Cf. Byrd v. Ace Am. Ins. Co., No. 17-CV-0111-CVE-JFJ, 2018 WL 1569499, at *3 (N.D. Okla. Mar. 30, 2018) (noting that a finding of negligent entrustment could be supported where plaintiff came forward with evidence that a truck driver suffered from sleep apnea, notified his employer of his sleep apnea, and exceeded his legal hours of service). The Court finds that plaintiff has not submitted sufficient evidence from which a reasonable jury could find that S&H is liable for negligent entrustment. In other words, plaintiff has failed to produce evidence that shows S&H supplied chattel to Wood when it knew or should have known that Wood would use any such chattel in a dangerous way likely to cause harm to others. Therefore, the Court finds that defendant S&H’s motion for partial summary judgment (Dkt. # 42) should be granted as to the negligent entrustment claim against it.

b. Negligent Hiring, Training, Supervision, and Retention

According to Supreme Court of Oklahoma precedent, “[e]mployers may be held liable for negligence in hiring, supervising, or retaining an employee.” Le v. Total Quality Logistics, LLC, 431 P.3d 366, 375 (Okla. Civ. App. 2018) (citing N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592, 600 (Okla. 1999)). Namely, “[a]n employer is found liable if the employer had reason to believe that the person [*10] would create an undue risk of harm to others. Employers are held liable for their prior knowledge of the servant’s propensity to commit the very harm for which damages are sought.” Id. “The critical element for recovery is the employer’s prior knowledge of the servant’s propensities to create the specific danger resulting in damage.” Presbyterian Church, 998 P.2d at 600.

Here, the undisputed facts establish that Wood was a seasoned driver with over 30 years of experience; was certified by a DOT medical examiner; had a valid CDL; passed a drug screen before S&H re-hired him; had zero FMCSA-reportable crashes at the time of his 2015 hiring; received S&H’s driver’s manual; obtained S&H training certifications; and passed S&H’s written quiz and road test. Moreover, since S&H re-hired him in 2015, Wood had one accident while driving his commercial vehicle (prior to the January 6, 2019 collision), and Wood’s MVR indicates that he was not at fault, which Wood corroborates in his sworn testimony, Dkt. # 48-1, at 107. In sum, plaintiff failed to present evidence that S&H had prior knowledge or a reason to believe that Wood would create an undue risk of harm to others. Thus, plaintiff is unable to make a sufficient showing from [*11] which a reasonable jury could find that S&H is liable for negligent hiring, training, supervision, and retention. Therefore, the Court finds that defendant S&H’s motion for partial summary judgment (Dkt. # 42) should be granted as to plaintiff’s negligent hiring, training, supervision, and retention claim against S&H.

IT IS THEREFORE ORDERED that defendant S&H Transportation, Inc.’s (S&H) motion for partial summary judgment (Dkt. # 42) is granted as to plaintiff’s negligent entrustment and negligent hiring, training, supervision, and retention claims against defendant S&H.

IT IS FURTHER ORDERED that plaintiff is directed to show cause, within 14 days, as to why defendants John Doe and Jane Doe have not been served, and to show good cause as to why the Court should not dismiss this case as to those defendants.

DATED this 25th day of April, 2022.

/s/ Claire V. Eagan

CLAIRE V. EAGAN

UNITED STATES DISTRICT JUDGE

End of Document

¹The traffic collision report shows that the incident occurred at 4:30 a.m. on January 6, 2019, Dkt. # 42-1, at 2, and the drug testing results show that a urine sample was collected at 12 a.m. on January 7, 2019, Dkt. # 57-2, at 1.

²A BMI of 30.0 and above is considered obese. https://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/index.html.

³The Court notes that S&H denies that Wood worked for S&H for 30 years, Dkt. # 57, at 2; however, S&H’s submitted evidence indicates that Wood worked at S&H from August 1991 until December 2015, and then from May 2015 on, including at the time of the collision. Dkt. # 57-1, at 16-17. S&H claims that it has been in business since 1994, not 1991, Dkt. # 57, at 2; even so, the record evidence shows that Wood worked for S&H for approximately 25-28 years.

⁴The Court notes that plaintiff presents no evidence or argument that the trailer, which Wood’s semi-truck was pulling for S&H, was the chattel that S&H negligently entrusted to Wood. In his response to S&H’s motion for partial summary judgment, plaintiff argues that the chattel that S&H negligently entrusted to Wood was its DOT authority only. See Dkt. # 48, at 9, 23. Accordingly, the Court will analyze plaintiff’s negligent entrustment claim as to S&H’s DOT authority only.

Mata v. Allupick, Inc.

United States District Court for the Northern District of Alabama, Middle Division

May 16, 2022, Decided; May 16, 2022, Filed

4:21-cv-00865-ACA

Reporter

2022 U.S. Dist. LEXIS 87656 *; 2022 WL 1541294

MARIA DE LOS ANGELES MATA, as the Administrator for the Estate of Claudio Mancilla, Deceased Plaintiff, v. ALLUPICK, INC., et al., Defendants.

Core Terms

motor carrier, broker, exemption, motor vehicle, preemption, preempts, routes, regulation, regulatory authority, transportation, transportation of property, preemption provision, quotation, marks, state law, carriers, freight, prices, pleadings, trucking, common law, selecting, unsafe, safe

Counsel: [*1] For Maria De Los Angeles Mata, as the Administrator for the Estate of Claudio Mancilla, Deceased, Plaintiff: David Lee Bruce, LEAD ATTORNEY, BELT AND BRUNER, PC, Birmingham, AL; James Donald Sears, LEAD ATTORNEY, LAW OFFICES OF SEARS & SEARS PC, Hoover, AL; Leslie Ann Wright, Sigfredo Rubio, LEAD ATTORNEY, RUBIO LAW FIRM PC, Birmingham, AL; Robert P Bruner, LEAD ATTORNEY, BELT & BRUNER P.C., Birmingham, AL.

For Allupick Inc, a coporation, For Tariku Samson, an individual, Defendants: James C Gray, III, LEAD ATTORNEY, LLOYD, GRAY, WHITEHEAD & MONROE, PC, Birmingham, AL; James C Gray, III, Jeffrey Williams Speegle, LEAD ATTORNEY, Lloyd, Gray, Whitehead & Monroe, Birmingham, AL.

For Abebe Baraki, an individual, Defendant: Ralph J Bolen, LEAD ATTORNEY, BOLEN & BOLEN, Chelsea, AL.

For Jear Logistics LLC, Defendant: Thomas Sidney Rue, LEAD ATTORNEY, MAYNARD COOPER GALE, Mobile, AL; Evan P Moltz, MAYNARD COOPER & GALE PC, Birmingham, AL.

Judges: ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE.

Opinion by: ANNEMARIE CARNEY AXON

Opinion

MEMORANDUM OPINION AND ORDER

Claudio Mancilla died in a car accident involving a tractor-trailer hauling a load of frozen chicken. His sister, Plaintiff Maria de los Angeles Mata, filed this [*2] wrongful death action against six defendants in her capacity as the administrator for Mr. Mancilla’s estate. (Doc. 41). Defendant Jear Logistics, LLC, is the freight broker that hired the trucking company whose employee caused the accident. (Id. at 2 ¶ 5). Ms. Mata seeks to hold Jear Logistics liable for negligence and wantonness in selecting that trucking company. (Id. at 11-12).

Jear Logistics moves for judgment on the pleadings, under Federal Rule of Civil Procedure 12(c), on the ground that the Federal Aviation Administrative Authorization Act of 1994 (“FAAAA”), 49 U.S.C. § 14501(c)(1), preempts the claims against it. (Doc. 45 (incorporating doc. 21)).¹ But although Ms. Mata’s negligence and wantonness claims are “related to” a freight broker’s “services,” such that § 14501(c)(1) preemption applies, these particular claims are exempt from preemption based on the State’s “safety regulatory authority . . . with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). Accordingly, the court DENIES Jear Logistics’ motion for judgment on the pleadings.

I. BACKGROUND

In reviewing a Rule 12(c) motion for judgment on the pleadings, the court “must take the facts alleged in the complaint as true and view them in the light most favorable to the nonmoving party.” Mergens v. Dreyfoos, 166 F.3d 1114, 1117 (11th Cir. 1999). In response to the motion, Ms. Mata has submitted evidence including orders and a judgment from [*3] unrelated cases, a transcript of a motion hearing, and a house conference report. (Doc. 24-1 to 24-5). Typically the court cannot consider evidence in deciding a motion for judgment on the pleadings. See Fed. R. Civ. P. 12(d). Thus, to the extent Ms. Mata’s submissions are intended as evidence in support of her claims, the court does not consider them. However, the court may consider judicially noticed facts, such as the content of a house conference report. See Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir. 2002).

Jear Logistics is freight broker, hired by a company to arrange the shipment of a load of frozen chicken. (Doc. 41 at 2 ¶ 5, 5 ¶¶ 17-19). It selected Defendant Allupick, Inc. to transport the chicken without performing any research to ensure that Allupick “was a safe operator and employed safe drivers.” (Id. at 2 ¶ 5, 11 ¶ 41). And it turns out that Allupick was “an unsafe motor carrier” with “a demonstrated disregard for the safety of the traveling public,” and its employee, Defendant Tariku Samson, was “an unsafe driver.” (Id. at 11-12 ¶¶ 41-42). While transporting the chicken in Allupick’s truck, Mr. Samson struck Mr. Mancilla’s car, causing Mr. Mancilla’s death. (Id. at 3-4 ¶¶ 11-12). Mr. Mancilla’s sister, Ms. Angeles Mata, filed this wrongful [*4] death suit against various defendants. (Id. at 6-15). She claims that Jear Logistics’ selection of Allupick was negligent and wanton. (Id. at 12 ¶ 43).

II. DISCUSSION

Jear Logistics moves for judgment on the pleadings as to the negligence and wantonness claims brought against it for selecting Allupick, arguing that the FAAAA preempts any claim relating to how it performs its function of hiring motor carriers.² (Doc. 21 at 4-15). Whether the FAAAA preempts negligent selection claims against freight brokers is an open question in the Eleventh Circuit.

The Supremacy Clause provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. “Consideration of issues arising under the Supremacy Clause starts with the assumption that the historic police powers of the States are not to be superseded by . . . Federal Act unless that is the clear and manifest purpose of Congress. Accordingly, the purpose of Congress is the ultimate touchstone of pre-emption analysis.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992) (quotation marks, citations, and alterations omitted).

Congress may preempt state law in several ways, of which only one is relevant here: express preemption. [*5] See Irving v. Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir. 1998). “[E]xpress preemption clauses must be construed narrowly” when “the subject matter, such as the provision of tort remedies to compensate for personal injuries, is one that has traditionally been regarded as properly within the scope of states’ rights.” Id. (quotation marks omitted).

The FAAAA was enacted to deregulate the trucking industry. Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 256, 133 S. Ct. 1769, 185 L. Ed. 2d 909 (2013). The statute’s stated policy is “to promote competitive and efficient transportation services in order to” accomplish a number of enumerated goals, including “encourag[ing] fair competition,” “promot[ing] efficiency,” “meet[ing] the needs of shippers, receivers, passengers, and consumers”; “allow[ing] a variety of quality and price options”; “allow[ing] the most productive use of equipment and energy resources”; enabling carriers to earn profits, attach capital, and provide fair wages and working conditions; providing service to small communities and small shippers; providing commuter bus operations; “improv[ing] and maintain[ing] a sound, safe, and competitively privately owned motor carrier system”; promoting participation by minorities; and promoting intermodal transportation. 49 U.S.C. § 13101(a)(2).

The Supreme Court has described Congress’s purpose in enacting [*6] the FAAAA as “ensur[ing] transportation rates, routes, and services that reflect ‘maximum reliance on competitive market forces,’ thereby stimulating ‘efficiency, innovation, and low prices,’ as well as ‘variety’ and ‘quality.'” Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 364, 128 S. Ct. 989, 169 L. Ed. 2d 933 (2008) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992)). The Supreme Court has also highlighted the economic purpose behind the FAAAA: to avoid “state economic regulation of motor carrier operations” because such regulation “is a huge problem for national and regional carriers attempting to conduct a standard way of doing business.” City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 440, 122 S. Ct. 2226, 153 L. Ed. 2d 430 (2002).

The FAAAA therefore provides that a State “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). Congress borrowed most of this language from the Airline Deregulation Act of 1978 (“ADA”), 49 U.S.C. § 14501(c)(1), which included a preemption provision prohibiting States from enacting or enforcing any law “relating to rates, routes, or services of any air carrier.” Rowe, 552 U.S. at 367. Because of the similarity in language, the Supreme Court has held that cases interpreting the ADA are instructive in [*7] interpreting the FAAAA. Id. at 370. But courts must also bear in mind that the FAAAA’s inclusion of the final clause “with respect to the transportation of property”—which the ADA does not include—”massively limits” the scope of the FAAAA’s preemption compared to the ADA’s preemption. Pelkey, 569 U.S. at 261 (quotation marks omitted).

The phrase “related to” “express[es] a broad pre-emptive purpose.” Morales, 504 U.S. at 383 (concerning the ADA’s preemption provision). It includes “state enforcement actions having a connection with, or reference to, . . . rates, routes, or services,” even if “a state law’s effect on rates, routes, or services is only indirect,” and regardless of “whether a state law is consistent or inconsistent with federal regulation,” as long as “state laws have a significant impact related to Congress’ deregulatory and pre-emption-related objectives.” Rowe, 552 U.S. at 370 (quotation marks and emphasis omitted). However, the FAAAA preempts only state laws concerning “transportation of property,” which the FAAA defines in relevant part to “include . . . services related to [the] movement [of passengers or property], including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, [*8] packing, unpacking, and interchange of passengers and property.” 49 U.S.C. § 13102(23)(B). The statute does not preempt state laws “affecting . . . prices, routes, and services in only a tenuous, remote, or peripheral manner.” Pelkey, 569 U.S. at 261 (quotation marks and alteration omitted).

Jear Logistics contends that, as a freight broker, selecting a motor carrier is one of its primary services, so a claim of negligent selection of a motor carrier falls directly under the purview of the FAAAA’s preemption provision. (Doc. 21 at 7-10). Ms. Mata responds that (1) the FAAAA does not preempt personal injury tort claims; (2) a claim of negligent selection may impact a broker’s method of selecting carriers but it does not require that the broker change its pricing, routes, or services; (3) under a set of factors set out by the Third Circuit, a claim of negligent selection does not have a significant effect on prices, routes, or services. (Doc. 24 at 6-21).

As an initial matter, the Supreme Court has vigorously rejected the position that the ADA cannot preempt common law tort causes of action. See Morales, 504 U.S. at 386; see also Riegel v. Medtronic, Inc., 552 U.S. 312, 316-29, 128 S. Ct. 999, 169 L. Ed. 2d 892 (2008) (finding state common law tort claims for negligence, strict liability, and breach of implied warranty preempted by a federal [*9] statute’s provision prohibiting a State from enforcing any “requirement . . . which relates to the safety or effectiveness of [medical devices intended for human use]”); Cipollone, 505 U.S. at 521-22 (plurality opinion) (explaining that common law damages actions can constitute state regulation because “[t]he obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy”) (quotation marks omitted); id. at 535 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part) (agreeing with the plurality that “that phrase ‘State law,’ in an appropriate case, can encompass the common law as well as positive enactments such as statutes and regulations”); id. at 548-49 (Scalia, J, concurring in the judgment in part and dissenting in part) (agreeing with the plurality that “general tort-law duties . . . can, as a general matter, impose requirements or prohibitions . . . and that the phrase ‘State law’ as used in [the statute at issue] embraces state common law”) (quotation marks and alterations omitted). This reasoning applies equally to the FAAAA’s preemption provision. Nothing about the FAAAA’s additional language about “the transportation of property” [*10] changes the definition of “law, regulation, or other provision having the force and effect of law.” See 49 U.S.C. § 14501(c)(1).

Moreover, the only Eleventh Circuit case on which Ms. Mata relies is Parise v. Delta Airlines, Inc., 141 F.3d 1463 (11th Cir. 1998). (See doc. 24 at 9 n.32). In Parise, the Eleventh Circuit held that the ADA did not preempt Florida’s age discrimination law because a claim of age discrimination made against an airline does not relate to an airline’s prices, routes, or services. 141 F.3d at 1466. Parise does not hold that the ADA never preempts any common law personal injury claims. Parise is consistent with the Supreme Court’s approach, which requires the court to analyze whether the claim—whether arising from common law or a statute—”relate[s] to a price, route, or service of any . . . broker . . . with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1); see, e.g., Medtronic, Inc., 518 U.S. at 492-501 (addressing each of several common law claims asserted in the case to determine whether the federal statute at issue in that case preempted them).

In her complaint, Ms. Mata asserts Jear Logistics negligently selected an unsafe motor carrier to transport goods, leading to the accident that killed Mr. Mancilla. This claim of negligent selection relates directly to the services a freight broker provides: selecting a motor [*11] carrier to transport goods. See 49 U.S.C. § 13102(2) (defining a “broker” as one who “arrang[es] for[ ] transportation by motor carrier for compensation”); id. § 13102(23)(B) (defining “transportation of property” to include “arranging for” the movement of property). Accordingly, this claim “relates to a . . . service of . . . any . . . broker . . . with respect to the transportation of property.” Id. § 14501(c)(1).

However, “relating to” a broker’s service is not the end of the analysis. Ms. Mata contends that, even if the FAAAA preempts this claim, an exemption applies. The FAAAA expressly carves out from its preemption provision: (1) “the safety regulatory authority of a State with respect to motor vehicles”; (2) “the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo”; (3) “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”; (4) “the intrastate transportation of household goods”; and (5) “law[s], regulation[s], or other provision[s] relating to the regulation of tow truck operations performed without [*12] the prior consent or authorization of the owner or operator of the motor vehicle.” 49 U.S.C. § 14501(c)(2).

Ms. Mata contends that the first of these exemptions—”the safety regulatory authority of a State with respect to motor vehicles”—exempts from FAAAA preemption a state tort for personal injury based on a broker’s negligent selection of a motor carrier. (Doc. 24 at 23-27). Jear Logistics contends that this is an overly broad reading of the exemption, which is specific to “motor vehicles” and cannot encompass a claim for negligent selection of a motor carrier. (Doc. 21 at 10-14; doc. 25 at 5-7).

Neither the Supreme Court nor the Eleventh Circuit has addressed the scope of the safety regulatory authority exemption. The Supreme Court has stated that the statutory language “with respect to the transportation of property” means “concern[ing] a motor carrier’s transportation of property.” Pelkey, 133 S. Ct. at 1778-79 (quotation marks omitted). It follows that “with respect to motor vehicles” means “concerning motor vehicles.” See also With Respect To, Webster’s Collegiate Thesaurus (1976) (“[A]s for, as regards, as respects, as to, concerning, re, regarding, respecting, touching.”). However, “concerning motor vehicles” does not necessarily [*13] mean that the regulation must directly address motor vehicles.

The preemption provision itself uses a similar phrase—”related to”—broadly to include even indirect effects on prices, routes, and services. See, e.g., Pelkey, 569 U.S. at 260; Rowe, 552 U.S. at 370; Morales, 504 U.S. at 383. It is unclear why the court should read the preemption provision’s use of “related to” broadly while reading the exemption narrowly to include only direct effects on motor vehicles.

In a case about the State’s ability to delegate its safety regulatory authority to political subdivisions, the Supreme Court stated that “Congress’ clear purpose in § 14501(c)(2)(A) [the safety regulatory authority exemption] is to ensure that its preemption of States’ economic authority over motor carriers of property . . . ‘not restrict’ the preexisting and traditional state police power over safety.” Ours Garage & Wrecker Serv., Inc., 536 U.S. at 439 (emphasis added). Because of this, a narrow construction of the safety regulatory authority exemption “is surely resistible here, for § 14501(c)(1)‘s preemption rule and § 14501(c)(2)(A)‘s safety exception to it do not necessarily conflict.” Id. at 440. In so stating, the Supreme Court “reiterate[d] that § 14501(c)(2)(A) shields from preemption only ‘safety regulatory authority’ . . . . Local regulation of prices, routes, or services . . . that is not genuinely [*14] responsive to safety concerns garners no exemption from § 14501(c)(1)‘s preemption rule.” Id. at 442. Ours Garage, however, does not conclusively resolve the question in this case because it did not determine whether the safety regulation at issue was valid, only whether the State had the power to delegate its regulatory authority to a political subdivision. See id.

In this case, Ms. Mata’s negligent selection claim is that Jear Logistics failed “to ensure that the [motor carrier it selected] was a safe operator and employed safe drivers” and selected “an unsafe trucking company . . . that had a demonstrated disregard for the safety of the traveling public.” (Doc. 41 at 11 ¶ 41). Although this claim attacks Jear Logistics’ selection of a motor carrier instead of a motor vehicle, the selection of a motor carrier to transport goods necessarily implicates the use of a motor vehicle. And, as discussed above when determining that the preemption provision applies to common law tort claims, Alabama’s negligence law, even though of general applicability, “can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” Cipollone, 505 U.S. at 521-22 (plurality opinion); id. id. at 535 (Blackmun, J., concurring in part, concurring in [*15] the judgment in part, and dissenting in part); id. at 548-49 (Scalia, J, concurring in the judgment in part and dissenting in part).

Jear Logistics has not presented this court with any reason to believe that Alabama’s law on negligent selection “is not genuinely responsive to safety concerns” about the motor carriers who will be driving on Alabama roads. See Ours Garage & Wrecker Servs., 536 U.S. at 442. Jear Logistics’ only argument on that point is that the FAAAA expressly mandates motor carriers—but not brokers—to maintain liability insurance to cover personal injury or property damage, showing that Congress did not intend to exempt negligence claims against brokers. (Doc. 25 at 7-8). But Jear Logistics fails to point out where the FAAAA imposes such a requirement on motor carriers. The FAAAA exempts from the preemption provision “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,” 49 U.S.C. § 14501(c)(2)(A), but it does not impose any affirmative requirement that motor carriers maintain a particular type of insurance coverage, nor does it expressly exempt brokers from carrying insurance. Moreover, the district court case on which Jear [*16] Logistics relies discussed a Supreme Court case about the ADA’s insurance mandate, and expressly distinguished the FAAAA on that ground. (Doc. 25 at 7); see Krauss v. IRIS USA, Inc., 2018 U.S. Dist. LEXIS 74922, 2018 WL 2063829, at *6 (E.D. Pa. May 3, 2018). The court cannot find that Congress intended to exclude claims against brokers from the safety exemption based on an insurance mandate imposed on airlines in a different statute.

Following the Supreme Court’s instruction not to narrowly construe the safety authority regulation exemption, Ours Garage & Wrecker Servs., 536 U.S. at 440, the court concludes that this particular claim that a broker negligently selected an unsafe motor carrier is exempt from preemption under the State’s “safety regulatory authority . . . with respect to motor vehicles,” 49 U.S.C. § 14501(c)(2). The court therefore DENIES Jear Logistics’ motion for judgment on the pleadings.

DONE and ORDERED this May 16, 2022.

/s/ Annemarie Carney Axon

ANNEMARIE CARNEY AXON

UNITED STATES DISTRICT JUDGE

End of Document

¹After an amendment to the complaint mooted Jear’s earlier motion for judgment on the pleadings (doc. 43), the parties jointly filed a notice that Jear was renewing its motion and the parties were incorporating by reference the briefs they had filed with respect to that motion (doc. 45). For ease of reference, the rest of this opinion will cite directly to the earlier motion and briefs.

²Count Four expressly asserts that Jear Logistics was both negligent and wanton. (Doc. 41 at 12 ¶ 43). Jear Logistics’ motion for judgment on the pleadings discusses only the negligence claim. (See generally doc. 21). Nevertheless, it is clear that Jear Logistics seeks judgment on all claims against it arising from its selection of Allupick. (See id.). And the same preemption analysis applies to both types of claims. Accordingly, the court’s opinion applies equally to both the negligence and the wantonness claim. However, for ease of reference, the court will refer only to the “negligent selection claim.”