February 2023

Popp v. Sharco Express, LLC

United States District Court, E.D. Kentucky,

Northern Division at Covington.

Steven POPP, Plaintiff,

SHARCO EXPRESS, LLC, et al., Defendants.

CIVIL ACTION NO. 2:22-CV-120 (WOB-CJS)

Signed December 27, 2022

Attorneys and Law Firms

Ethan A. Busald, Gregory M. Erpenbeck, Busald, Funk & Zevely PSC, Florence, KY, for Plaintiff.

Tyler M. Jolley, Robert William Schrimpf, Roetzel & Andress, LPA, Cincinnati, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

William O. Bertelsman, United States District Judge

*1 This is a lawsuit brought by Steven Popp (“Popp”) against Sharco Express, LLC (“Sharco”) and Raymond Gifford (“Gifford”) for negligence stemming from a motor vehicle accident. Currently before the Court is Defendants’ Motion for Partial Judgment on the Pleadings. (Doc. 10).

The Court has carefully reviewed this matter and, being advised, now issues the following Memorandum Opinion and Order.

Factual and Procedural Background

On December 16, 2020, Defendant Gifford was driving a tractor-trailer eastbound on Interstate 275 in Erlanger, Kentucky in the course and scope of his employment with Defendant Sharco. (Doc. 1 ¶ 7; Doc. 9 ¶ 4). At approximately 11:24 A.M., Gifford rear-ended Plaintiff Popp’s vehicle. (Doc. 1 ¶ 8). Popp sustained injuries to his shoulder, neck, and back. (Id. ¶ 15).

On October 4, 2022, Popp filed the instant action alleging negligence against Gifford and corresponding vicarious liability against Sharco, negligent hiring, instructing, training, supervising, retaining, and entrustment against Sharco, negligence per se against both Defendants, and grounds for punitive damages against both Defendants. (Id. ¶¶ 4, 9–16). In their Amended Answer, Defendants admitted that Gifford was acting in the course and scope of his employment with Sharco at the time of the accident and, thus, to the extent Gifford was negligent, Sharco would be vicariously liable. (Doc. 9 ¶ 4).

Defendants have now moved for judgment on the pleadings with respect to Popp’s claims for negligent hiring, instructing, training, supervising, retaining, and entrustment and punitive damages. (Doc. 10 at 1–2).

Analysis

“After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The Court reviews a motion for judgment on the pleadings under the same standard as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Jackson v. City of Cleveland, 925 F.3d 793, 806 (6th Cir. 2019) (citing Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010)).

Thus, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). However, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555).

In diversity actions, federal courts apply the substantive law of the forum state. City of Wyandotte v. Consol. Rail Corp., 262 F.3d 581, 585 (6th Cir. 2001) (citing Hanover Ins. Co. v. Am. Eng’g Co., 33 F.3d 727, 730 (6th Cir. 1994)). Thus, Kentucky substantive law applies to all claims in this case.

A. Prematurity of Motion

*2 Popp first argues that, because the Court adopted the parties’ Proposed Scheduling Order, which provided that the parties may amend the pleadings by consent or motion until February 28, 2023, (Doc. 12 at 1), the pleadings are not yet “closed” as required by Federal Rule of Civil Procedure 12(c) and thus Defendants’ Motion for Judgment on the Pleadings should be denied as premature. (Doc. 13 at 1).

However, this argument fails because “pleadings are closed for purposes of a Rule 12(c) motion, upon the filing of a complaint and an answer (absent a court-ordered reply), unless a counterclaim, crossclaim, or third-party claim is interposed, even if the parties may still amend their pleadings in accordance with the Court’s Scheduling Order.” Elkins v. Extreme Prods. Grp., LLC, No. 5:21-050-DCR, 2022 WL 409694, at *2 (E.D. Ky. Feb. 9, 2022) (internal quotation marks omitted) (collecting cases); see also Forest Creek Townhomes, LLC v. Carroll Prop. Mgmt., LLC, 695 F. App’x 908, 913 (6th Cir. 2017) (finding that, where the defendants had filed an answer, a Rule 12(c) motion was not premature).

Thus, because Defendants have filed an Answer in this case, (see Doc. 9), and there are no counterclaims, crossclaims, or third-party claims, Defendants’ Rule 12(c) Motion is timely.

B. Negligent Hiring, Instructing, Training, Supervising, Retaining, and Entrustment

Defendants argue that Popp’s claims for negligent hiring, instructing, training, supervising, retaining, and entrustment are mooted by their admission that Gifford was acting in the course and scope of his employment with Sharco at the time of the accident. (Doc. 10 at 5). Alternatively, Defendants argue that Popp has insufficiently pled those claims. (Id. at 6). The Court will address each argument in turn.

i. Mootness

Defendants contend that, because they admitted that Gifford was driving the tractor-trailer in the course and scope of his employment with Sharco and thus, to the extent he was negligent, Sharco would be vicariously liable, (see Doc. 9 ¶ 4), Popp’s claims for negligent hiring, instructing, training, supervising, retaining, and entrustment serve no purpose and should be dismissed. (Doc. 10 at 5). However, the Kentucky Supreme Court has held that “a plaintiff may assert and pursue in the same action a claim against an employer based under respondeat superior upon the agent’s negligence, and a separate claim based upon the employer’s own direct negligence in hiring, retention, supervision, or training.” MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 337 (Ky. 2014). Further, “[t]he employer’s admission to the existence of an agency relationship from which vicarious liability may arise does not supplant the claim that the employer’s own negligence, independent of the negligence of the employee, may have caused or contributed to the injury.” Id.

Although Defendants cite Oaks v. Wiley Sanders Truck Lines, Inc., No. 07-45-KSF, 2008 WL 5459136 (E.D. Ky. Nov. 10, 2008), and Southard v. Belanger, 966 F. Supp. 2d 727 (W.D. Ky. 2013), in support of their argument, both cases were decided before the Kentucky Supreme Court issued its opinion in Allgeier.¹ Following Allgeier, federal courts have applied Kentucky law to allow simultaneous negligence claims to proceed against an employer based on both vicarious and actual liability, even where the employer admitted vicarious liability. See, e.g., Auto-Owners Ins. v. Aspas, No. 3:16-cv-189-DJH-DW, 2018 WL 1403902, at *3 (W.D. Ky. Mar. 19, 2018) (allowing a plaintiff to pursue a respondeat superior claim and a negligent supervision claim against an employer who admitted vicarious liability); Campos v. Louisville Metro Police Officers Credit Union, No. 3:18-cv-196-CRS, 2018 WL 4760501, at *6–7 (W.D. Ky. Oct. 2, 2018) (allowing simultaneous claims against an employer based on vicarious liability for an employee’s negligence and negligent hiring, retention, and supervision).²

*3 Accordingly, the Court finds that Popp’s claims for negligent hiring, instructing, training, supervising, retaining, and entrustment are separate from his vicarious liability claim and, thus, are not moot.

ii. Insufficient Pleading

Defendants also argue that Popp’s claims for negligent hiring, instructing, training, supervising, retaining, and entrustment are insufficiently pled and should be dismissed for that reason. (Doc. 10 at 6).

“To prevail on a claim for negligent hiring and retention, the plaintiff must prove that: (1) the employer knew or reasonably should have known that an employee was unfit for the job for which he was employed; and (2) the employee’s placement or retention at that job created an unreasonable risk of harm to the plaintiff.” Gordon v. Turner, No. 13-136-DLB-CJS, 2016 WL 3636073, at *9 (E.D. Ky. June 29, 2016) (citing Oakley v. Flor-Shin, Inc., 964 S.W.2d 438, 442 (Ky. Ct. App. 1998)). To succeed on a claim for negligent training and supervision, “the plaintiff must establish that (1) the employer knew or had reason to know of the risk that the employee created; (2) the employee injured the plaintiff; and (3) the supervision … of the employee proximately caused the injury.” Id. at *10 (citing Grand Aerie Fraternal Ord. of Eagles v. Carneyhan, 169 S.W.3d 840, 844 (Ky. 2005)).

Similarly, “[t]he common law theory of negligent entrustment is that one who entrusts her vehicle to another whom she knows to be inexperienced, careless, or reckless, or given to excessive use of intoxicating liquor while driving, is liable for the natural and probable consequences of the entrustment.” Cox v. Waits, No. 2002-CA-002357-MR, 2004 WL 405811, at *2 (Ky. Ct. App. Mar. 5, 2004) (citing Owensboro Undertaking & Livery Ass’n v. Henderson, 115 S.W.2d 563 (1938); Brady v. B. & B. Ice Co., 45 S.W.2d 1051 (1932)).

Courts in this Circuit have dismissed claims for negligent hiring, training, supervising, retaining, and entrustment where a plaintiff’s complaint provides only that a defendant had certain duties and then summarily states that the defendant was negligent in the performance of those duties. See, e.g., Seemann v. Copeland, No. 5:20-cv-00027-TBR, 2020 WL 6434852, at *4 (W.D. Ky. Nov. 2, 2020) (dismissing claims for negligent hiring, training, entrusting, supervising, retaining, and contracting where a plaintiff did not provide factual allegations to support her claim but merely listed certain duties and then stated that the defendant was negligent); Cambron v. RK Shows, Inc., No. 3:14-cv-00368-TBR, 2014 WL 3419128, at *5 (W.D. Ky. July 14, 2014) (dismissing a negligent hiring claim where plaintiffs made no allegations that employees were unfit or that their employer knew or reasonably should have known of their unfitness); Warner v. Bob Evans Farms, Inc., No. 5:09-cv-63-KKC, 2010 WL 1451354, at *3 (E.D. Ky. Apr. 8, 2010) (dismissing a negligent hiring/retention claim where the plaintiff failed to make any allegations that a defendant knew or should have known that its employees were unfit for duty).

Here, Popp alleges that Sharco “had a duty to act reasonably in hiring, instructing, training, supervising and retaining its drivers and other employees” and “to exercise reasonable care in entrusting its vehicles and equipment to responsible, competent and qualified drivers,” but that it “was negligent, careless and reckless with regard to [those] duties.” (Doc. 1 ¶¶ 11–13). However, much like in Seemann, Cambron, and Warner, Popp’s Complaint does not contain an allegation that Gifford was unfit for employment as a driver, that Sharco knew or should have known of Gifford’s unfitness, or that Gifford’s unfitness was the proximate cause of the accident.

*4 Although Popp alleges in his Response to Defendants’ Motion for Judgment on the Pleadings that Gifford’s driving history includes a prior citation and that Gifford admitted to Popp following the accident that he had been involved in multiple prior collisions, (see Doc. 13 at 1–2), these allegations are not found in the Complaint and Gifford’s driving history is neither attached to Popp’s Complaint nor his Response. As such, the Court will not consider those allegations. See Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th Cir. 2020) (collecting cases); see also Brent v. Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 698 (6th Cir. 2018) (finding that a district court was not required to consider allegations raised for the first time in response to a Rule 12(c) motion where the relevant document was not attached to plaintiffs’ briefings). Similarly, Popp’s argument that he should be allowed time for discovery to determine the “appropriateness” of his claims, (Doc. 13 at 2), is unavailing. See Bates, 958 F.3d at 483.

Because Popp’s Complaint offers only a formulaic recitation of the elements of negligent hiring, instructing, training, supervising, retaining, and entrustment without any supporting factual allegations, the Court will dismiss those claims. See Twombly, 550 U.S. at 555. However, the Court will grant Popp an opportunity to amend his complaint to address these deficiencies. See Seemann, 2020 WL 6434852, at *4 (granting the plaintiff an opportunity to amend her complaint after dismissing her negligent hiring, training, entrusting, supervising, retaining, and contracting claims for lack of supporting factual allegations).

C. Punitive Damages

Finally, Defendants argue that Popp’s Complaint does not contain any factual allegations that could support a claim for punitive damages. (Doc. 10 at 8).³ “Under Kentucky law, punitive damages are available only if a defendant acted with oppression, fraud, malice, or gross negligence.” Zachery v. Shaw, No. 3:12-CV-606, 2013 WL 1636385, at *1 (W.D. Ky. Apr. 16, 2013) (citing K.R.S. § 411.184; Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998)). To establish gross negligence sufficient to justify punitive damages, a plaintiff must show that the defendant failed to exercise reasonable care and, additionally, “ ‘that this negligence was accompanied by wanton or reckless disregard for the lives, safety, or property of others.’ ” Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 59 (Ky. 2013) (quoting Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 389–90 (Ky. 1985)).

In Kinney v. Butcher, the Kentucky Court of Appeals held that driving at ten miles per hour over the posted speed limit and failing to complete a pass before entering a no-passing zone did not amount to gross negligence and, thus, punitive damages were not warranted. 131 S.W.3d 357, 359 (Ky. Ct. App. 2004). The court found that holding otherwise “would effectively eliminate the distinction between ordinary and gross negligence in the context of automobile accidents.” Id. The court also opined that “[n]early all auto accidents are the result of negligent conduct, though few are sufficiently reckless as to amount to gross negligence, authorizing punitive damages.” Id.

*5 Similarly, a court in this District held that an allegation that the defendant had been driving while tired was not enough to justify a claim for gross negligence and a potential award of punitive damages. Turner v. Werner Enters., Inc., 442 F. Supp. 2d 384, 386 (E.D. Ky. 2006). A court in the Western District of Kentucky also found that an allegation that the defendant’s vehicle crossed into the plaintiff’s right of way, struck her vehicle, and then pushed it 100 feet before forcing it off the road did not warrant a claim for punitive damages. Zachery, 2013 WL 1636385, at *3.

Here, Popp has merely alleged that Sharco and Gifford “acted recklessly, wantonly and/or with extreme indifference or reckless disregard for the consequences of their actions,” that they exhibited “a reckless disregard for the life, safety and health of others,” and that Gifford “failed to maintain control of his vehicle and rear-ended Plaintiff Popp’s vehicle.” (Doc. 1 ¶¶ 8, 16). Popp has not provided any factual allegations, beyond a bare recitation of the standard for punitive damages, that would support a finding that Defendants acted with wanton or reckless disregard for the lives or safety of others.⁴ In light of Kinney, Turner, and Zachery, the Court cannot conclude that the only factual allegation in the Complaint, that Gifford rear-ended another vehicle, gives rise to a plausible claim for gross negligence and warrants a potential award of punitive damages because such a holding “would effectively eliminate the distinction between ordinary and gross negligence in the context of automobile accidents.” See Kinney, 131 S.W.3d at 359.

Accordingly, the Court will dismiss Popp’s claim for punitive damages. However, just as with the above claims, the Court will grant Popp an opportunity to amend his complaint to address this deficiency. See Seemann, 2020 WL 6434852, at *5 (granting the plaintiff an opportunity to amend her complaint after dismissing her claim for punitive damages); Zachery, 2013 WL 1636385, at *3 (dismissing punitive damages claims without prejudice to allow the plaintiff to amend the complaint).⁵

Conclusion

Therefore, for the reasons stated above, IT IS ORDERED that:

(1) Defendants’ Motion for Partial Judgment on the Pleadings (Doc. 10) be, and is hereby, GRANTED;

(2) Plaintiff’s claims for negligent hiring, instructing, training, supervising, retaining, and entrustment and punitive damages be, and are hereby, DISMISSED WITHOUT PREJUDICE; and

(3) If Plaintiff wishes to file an amended complaint, he shall do so WITHIN TEN DAYS.

All Citations

Footnotes

1 Defendants also cite this Court’s opinion in Martin v. Browning, 198 F. Supp. 3d 783 (E.D. Ky. 2016), in support of their argument. (Doc. 10 at 6). However, in that case the defendants admitted liability and the only remaining issue was damages, but the plaintiff sought admission of evidence concerning negligent hiring and training. Martin, 198 F. Supp. 3d at 784. Accordingly, the Court’s ruling that the Federal Rules of Evidence rendered such evidence inadmissible as a matter of federal procedural law, see id. at 786, is inapplicable in the present case, as Defendants have not admitted liability.

2 Although Defendants rely on Scroggins v. Yellow Freight Systems, Inc., 98 F. Supp. 2d 928 (E.D. Tenn. 2000), for additional support of their mootness argument, (Doc. 14 at 3–4), that opinion did not address Kentucky state law claims and is thus inapposite.

3 In their Reply, Defendants also argue that, because Popp did not address his claim for punitive damages in his Response to their Motion for Judgment on the Pleadings, he has abandoned it. (Doc. 14 at 2). However, the case Defendants rely on, Hicks v. Concorde Career College, 449 F. App’x 484 (6th Cir. 2011), and other related cases in the Sixth Circuit found abandonment in the context of motions for summary judgment, not motions to dismiss or motions for judgment on the pleadings. See, e.g., Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (collecting cases). Nonetheless, because the Court finds, as discussed below, that Popp’s claim for punitive damages was insufficiently pled, it need not reach the issue of abandonment.

4 Although Popp cites K.R.S. § 189.670 in his Complaint, which provides that it is the public policy of Kentucky that “heavy motor trucks … endanger the safety and lives of the traveling public,” this statute does not purport to provide punitive damages as a matter of course in every case in which such a truck is involved in an accident.

5 This ruling applies to Plaintiff’s claim for punitive damages at the pleading stage. However, if discovery later reveals facts that would support a claim for punitive damages, Plaintiff may move to amend his complaint to include such a claim at that time.

End of Document

Prime Ins. Co. v. Wright

United States Court of Appeals, Seventh Circuit.

PRIME INSURANCE COMPANY, Plaintiff-Appellant,

Darnell WRIGHT, Defendant-Appellee.

No. 22-1002

Argued December 1, 2022

Decided January 13, 2023

Synopsis

Background: Trucking company’s liability insurer brought action against company’s judgment creditor for declaratory judgment that MCS–90 endorsement did not apply to accident. The United States District Court for the Northern District of Indiana, William C. Lee, Senior District Judge, 599 F.Supp.3d 733, entered summary judgment in judgment creditor’s favor, and insurer appealed.

[Holding:] The Court of Appeals, Easterbrook, Circuit Judge, held that truck was engaged in interstate freight transportation within meaning of MCS–90 endorsement at time of accident.

Affirmed.

[1] Insurance Operations and Uses Covered

Truck was arranging for interchange of property after unloading freight but before picking up new load, and thus was engaged in interstate freight transportation within meaning of MCS–90 endorsement in trucking company’s automobile liability policy, even though it was empty at time at time of accident while driving between locations in Indiana; truck set out from Illinois to Indiana, where driver dropped off first load and drove to another location to pick up more, which he returned to Illinois. 49 U.S.C.A. §§ 13102(23)(B), 31139(b)(1).

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:19-CV-478 — William C. Lee, Judge.

Attorneys and Law Firms

Siobhan M. Murphy, Vincent P. Tomkiewicz, Attorneys, Lewis Brisbois Bisgaard & Smith LLP, Chicago, IL, for Plaintiff-Appellant.

David Arthur Singleton, Attorney, Blackburn Romey, Fort Wayne, IN, for Defendant-Appellee.

Before Easterbrook, Hamilton, and Kirsch, Circuit Judges.

Opinion

Easterbrook, Circuit Judge.

*1 Decardo Humphrey was a driver for Riteway Trucking. All of his trips began in South Holland, Illinois. Riteway would send him to a destination, often in another state; after unloading his truck, Humphrey would receive instructions about where to pick up his next load, which he would take to South Holland or another destination. He always ended up in Illinois to start another trip.

In November 2013 Humphrey drove a truck to Fort Wayne, Indiana. After he dropped off the freight, Riteway directed him to another site in Fort Wayne, where he was to pick up a load. While en route to the pickup site, Humphrey’s truck collided with a car driven by Darnell Wright. After cooperating with Wright and the police, Humphrey picked up his new load and delivered it in Illinois.

Wright, who accused Humphrey of negligence, eventually sued Riteway in a state court of Indiana. Riteway did not appear, and a default judgment for $400,000 was entered against it. Riteway also did not cooperate with Prime Insurance Co. and thus forfeited the benefit of the policy that Prime had issued.

Although Riteway lost its insurance coverage, the policy contained an endorsement known as the MCS–90 (“the Endorsement”), which provides payments to an injured party even when the insurer need not defend or indemnify its client. A federal court determined that Riteway’s obduracy had cost it the benefit of Prime’s policy but reserved all questions about whether Wright could recover under the Endorsement. The state’s judiciary declined to allow Prime to attack the default judgment. Prime Insurance Co. v. Wright, 133 N.E. 3d 749 (Ind. App. 2019). This led Prime to file a second suit in federal court, seeking a declaratory judgment that the Endorsement does not entitle Wright to any money. The district court held that the Endorsement applies and ordered Prime to pay up. 2021 U.S. Dist. Lexis 228400 (N.D. Ind. Nov. 30, 2021).

Prime contends that we should follow the “trip specific” approach adopted by Canal Insurance Co. v. Coleman, 625 F.3d 244 (5th Cir. 2010). Under this approach, the Endorsement applies only when a truck is loaded with freight and moving from one state to another at the moment of the collision. Wright urges us to follow the “fixed intent” approach used in Century Indemnity Co. v. Carlson, 133 F.3d 591 (8th Cir. 1998). Under that approach, the Endorsement applies when the driver has a fixed intent to transport freight across state lines in the near future. The district court instead used what it called a “totality of the circumstances” approach. Decisions by district courts across the country support all three possibilities.

The Endorsement reads:

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. Such insurance as is afforded, for public liability, does not apply to injury to or death of the insured’s employees while engaged in the course of their employment, or property transported by the insured, designated as cargo. It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.

*2 This is windy and stilted, but the core undertaking is straight-forward. Prime agreed to pay any judgment “resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980”.

The fact that these statutes have been repealed, and that the laws governing truck transportation have been recodified since the Endorsement’s language was specified by a federal regulation, introduces some complexity. Our path has been simplified by the parties’ agreement that the pertinent language now appears in 49 U.S.C. § 31139(b)(1). This says:

The Secretary of Transportation shall prescribe regulations to require minimum levels of financial responsibility sufficient to satisfy liability amounts established by the Secretary covering public liability, property damage, and environmental restoration for the transportation of property by motor carrier or motor private carrier (as such terms are defined in section 13102 of this title) in the United States between a place in a State and—

(A) a place in another State;

(B) another place in the same State through a place outside of that State; or

The regulation issued under this provision, which includes the Endorsement’s language, can be found at 49 C.F.R. § 387.7.

Section 31139(b)(1) does not call on courts or the Secretary to investigate the “totality” of circumstances. It does not require the Secretary or the judiciary to probe anyone’s intent. It offers a bit of support for Coleman, because it includes the phrase “transportation of property”, which Coleman expounded. But it does not include the qualifier “at the time of the accident” or anything similar. Nor does 49 U.S.C. § 13102, to which § 31139 refers.

Still, § 13102(23)(B) is helpful, because it defines “transportation” to include “services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.” This tells us that carrying freight at the instant of a collision is not essential to “transportation”; the word is more capacious. Transportation remains essential, and that transportation must be interstate or international. Section 13501 supplies the general rule for identifying that kind of transportation. Under § 13501, all motor freight transportation from a place in one state to a place in another is covered.

Humphrey was engaged in interstate freight transportation under the definition in § 13501, as supplemented by § 13102(23)(B). He set out from Illinois to Indiana, where he dropped some freight and picked up more, which he returned to Illinois. During this journey his truck and Wright’s car collided. The brief time that the truck was empty in Indiana is easily described as movement arranging for the interchange of property: loads must be picked up before they can be delivered. This means that the Endorsement applies. Cf. Southwest Airlines Co. v. Saxon, ––– U.S. ––––, 142 S. Ct. 1783, 213 L.Ed.2d 27 (2022) (loading baggage into an airplane’s hold is an activity in interstate commerce, for the purpose of 9 U.S.C. § 1, even though the loader never moves across a state line).

We have avoided “tests” by tracing the vital language. The Endorsement asks whether particular travel was subject to certain financial responsibility requirements. That sends us to § 31139, which sends us to § 13102(23). Section 13501 adds a general definition. None of these destinations tells us to ask about anyone’s intent, about whether a truck was carrying freight at the moment of impact, or about the “totality” of anything (let alone what would be in the list of circumstances that must be totally contemplated). All we need to know is whether the collision occurred during an interstate journey to deliver freight or one of the steps mentioned in § 13102(23)(B). The answer to that question is “yes.”

*3 Prime’s other arguments do not require discussion. It is not entitled to relitigate the state court’s decision in favor of the default judgment. 28 U.S.C. § 1738. And the award of interest from the date of the state judgment is not problematic.

Affirmed

All Citations

End of Document