United States District Court, M.D. Georgia, Athens Division.

Lynn BROOKS and Betsy Brooks, Plaintiffs,

v.

AK CREATION, LLC, Edward Bethea, and Progressive Southeastern Insurance Co., Defendants.

Attorneys and Law Firms

Bartlett Benton, Atlanta, GA, Bartlett Benton, Monroe, GA, for Plaintiff Lynn Brooks.

Bartlett Benton, Atlanta, GA, for Plaintiff Betsy Brooks.

Michael James Yates, II, Ryan D. Dixon, Atlanta, GA, Anna K. Beaton, Kennesaw, GA, for Defendant AK Creation LLC.

Kevin T. Shires, Loren Rafferty, Alpharetta, GA, for Defendant Edward Bethea.

Anna K. Beaton, Kennesaw, GA, for Defendant Progressive Southeastern Insurance Company.

ORDER

CLAY D. LAND, UNITED STATES DISTRICT COURT JUDGE

*1 This action arises from a motor vehicle wreck. At the time of the collision, Edward Bethea, while driving a tractor trailer owned by his employer, AK Creation, LLC, allegedly ran a red light due to defective brakes on the tractor and trailer, and he collided with a vehicle driven by Lynn Brooks. Brooks suffered injuries from the wreck, and his wife Betsy experienced a loss of consortium. Plaintiffs sued Bethea and AK Creation. Presently pending before the Court is AK Creation’s motion for summary judgment on Plaintiffs’ claims for punitive damages under O.C.G.A. § 51-12-5.1(b) and attorney’s fees under O.C.G.A. § 13-6-11. As discussed below, the partial summary judgment motion (ECF No. 16) is granted.

SUMMARY JUDGMENT STANDARD

Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.

FACTUAL BACKGROUND

Angel James owned a trucking business called AK Creation, LLC. She started the company in December 2021 and purchased one tractor and trailer. James’s friend, Lawrence Oliver, helped James with several aspects of her trucking business, including taking the truck to get it inspected and recommending Edward Bethea as a driver. AK Creation hired Bethea as its driver in early 2022. Bethea had a valid commercial driver’s license with no restrictions. Before he was hired, Bethea submitted his motor vehicle report to AK Creation; it revealed one prior wreck in his personal vehicle but no other issues.

Bethea complained to Oliver about the tractor-trailer’s brakes two or three times. On March 2, 2022, Oliver took the vehicle to be inspected by Stephano Brown of B&J Tire Services, LLC. The inspection report stated that the vehicle passed all the inspection items for the annual vehicle inspection, and in the “Brake System” section, all the components were marked “OK.”¹ Def.’s Mot. Summ. J. Ex. B, Annual Vehicle Inspection Report (Mar. 2, 2022), ECF No. 16-3. The wreck with Brooks happened three days after the inspection, on March 5, 2022. Plaintiffs assert that Bethea ran a red light because the tractor and trailer had defective brakes. Plaintiffs did not point to any evidence that AK Creation learned during the three days between the inspection and the wreck that the truck needed any repairs or maintenance. After the wreck, the Georgia Department of Public Safety determined that two brakes on axle 1 of the tractor, one brake on axle 3 of the trailer, and one brake on axle 4 of the trailer were inoperative. Pls.’ Resp. to Def.’s Mot. Summ. J. Ex. C, Vehicle Examination Report, ECF No. 17-3.

DISCUSSION

*2 Plaintiffs assert claims against AK Creation under a theory of respondeat superior liability, and they contend that they are entitled to recover punitive damages and expenses of litigation from AK Creation. AK Creation seeks summary judgment on the claims for punitive damages and expenses of litigation.

In Georgia, an employer may be liable for punitive damages arising from the acts or omissions of its employee if the employee’s “tortious conduct is committed in the course of the employer’s business, within the scope of the employment, and is sufficient to authorize a recovery of punitive damages.”² Atl. Star Foods, LLC v. Burwell, 889 S.E.2d 202, 207 (Ga. Ct. App. 2023). Punitive damages are authorized if the challenged “actions showed either wantonness or that entire want of care which would raise the presumption of conscious indifference to consequences.” Id. According to Plaintiffs, Oliver was an “employee” of AK Creation who learned from Bethea that there were issues with the vehicle’s brakes but never had them fixed.

It is undisputed, at least for purposes of this motion, that Bethea told Oliver that there were problems with the brakes. Three days before the wreck, Oliver had the vehicle inspected, and the inspector issued a written report stating that the brakes were “OK.” Annual Vehicle Inspection Report. While there is a genuine fact dispute on whether the brakes were defective on the date of the wreck given that a post-wreck inspection revealed several defective brakes on the vehicle, Plaintiffs pointed to no evidence that Oliver doubted the veracity of the March 2 inspection report. Plaintiffs also did not point to any evidence that there were any reports of brake problems between the date of the inspection and the date of the wreck. Thus, pretermitting whether Oliver should be considered an “employee” of AK Creation, the Court is not convinced that a jury could conclude based on the present record that Oliver’s actions showed wantonness or conscious indifference to the consequences. Accordingly, AK Creation cannot be vicariously liable for punitive damages arising from Oliver’s actions.

For the same reasons, the present record would not permit a jury to award litigation expenses under O.C.G.A. § 13-6-11. O.C.G.A. § 13-6-11 permits a plaintiff to recover litigation expenses if the defendant acted in bad faith in the underlying transaction. Nash v. Reed, 825 S.E.2d 853, 856 (Ga. Ct. App. 2019). If there is no evidence to support a finding of bad faith, then summary judgment is warranted on a claim under O.C.G.A. § 13-6-11. Here, Plaintiffs contend that AK Creation acted in bad faith because it decided to put its vehicle on the road despite Bethea’s past reports of brake problems. As noted previously, it is undisputed that AK Creation had the vehicle inspected three days before the wreck and that the brakes passed the inspection. Plaintiffs pointed to no evidence of any reports of brake problems between the date of the inspection and the date of the wreck. This evidence would not permit a jury to find bad faith.

CONCLUSION

For the reasons set forth above, the Court grants AK Creation’s partial summary judgment motion (ECF No. 16). Plaintiffs shall not be permitted to recover punitive damages or O.C.G.A. § 13-6-11 litigation expenses from AK Creation.

*3 IT IS SO ORDERED, this 2nd day of October, 2023.

All Citations

Footnotes

1. Plaintiffs emphasize that James did not have the vehicle inspected when she first purchased it, but they do not dispute that the vehicle was inspected three days before the wreck with Brooks.
2. This is a diversity action, so Georgia substantive law applies. E.g., Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1306 (11th Cir. 2002).  

© 2023 Thomson Reuters. No claim to original U.S. Government Works.

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United States Court of Appeals, Eleventh Circuit.

LEXIE HANDLEY, Plaintiff-Appellee,

v.

WERNER ENTERPRISES INC., Defendant-Appellant,

ACE AMERICAN INSURANCE COMPANY, Defendant.

|

October 11, 2023

Appeal from the United States District Court for the Middle District of Georgia

D.C. Docket No. 7:20-cv-00235-WLS

Before WILSON, JORDAN, and BRANCH, Circuit Judges.

Opinion

PER CURIAM:

*1 Defendant-Appellant Werner Enterprises, Inc. (Werner) owned the tractor-trailer truck that Plaintiff-Appellee Lexie Handley collided with on September 20, 2019. After the jury unanimously entered a verdict in favor of Handley, Werner filed a Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(a), Renewed Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(b), and Motion for a New Trial under Federal Rule of Civil Procedure 59. The district court denied all three motions. Werner argues that Handley did not meet her burden of establishing negligence, the decision goes against the weight of the evidence, and that the district court improperly informed the jury that Werner had insurance. After a careful review of the record, we AFFIRM.

I. Background

On September 20, 2019, Handley collided with a tractor-trailer owned by Werner and driven by its employee, Joseph Krisak. After suffering severe injuries, Handley sued Werner and ACE American Insurance Company (ACE) for Georgia tort law claims in state court. The defendants removed the action to federal court based on diversity jurisdiction. Handley’s vicarious liability claim against Werner alleged that Krisak’s negligent attempt to turn left on a five-lane highway caused the Werner tractor-trailer to stop in the left passing lane. Handley alleged that, but-for the stopped tractor-trailer, no accident would have occurred. Werner and ACE both moved for summary judgment. The court granted ACE’s motion because ACE was an excess liability insurance carrier and therefore not a proper defendant for a direct action. However, the court denied Werner’s motion, and Handley’s claim against Werner proceeded to trial in May 2022.

At trial, Werner moved for judgment as a matter of law at the end of Handley’s case, asserting that Handley had produced insufficient evidence to show a causal link between her injuries and Werner’s alleged breach. The court did not grant or deny the motion but took it under advisement. At the close of all evidence, Werner again moved for judgment as a matter of law on the same grounds as the earlier Rule 50(a) motion. The district court indicated that it would reserve its decision on the motion and sent the case to the jury. The jury returned a unanimous verdict in favor of Handley and found $6,000,000 in damages. The jury apportioned the fault 60% to Werner and 40% to Handley.

After receiving the verdict, Werner’s counsel noticed that the verdict form the jury received improperly named both Werner and ACE as defendants. The erroneous caption only appeared on the verdict form. Each set of jury instructions used the proper caption. Immediately, the court instructed the jurors to determine whether their verdict was directed to Werner only or to Werner and ACE. After six minutes, the jury said Werner only. Werner’s counsel moved for mistrial.

After the dismissing the jury, the district court did not formally enter the jury’s verdict. The district court asked both parties for supplemental briefing. It is unclear whether the district court intended for this supplemental briefing to relate only to the motion for mistrial. On June 3, 2022, Werner submitted two separate supplemental briefs. One brief related to a motion for mistrial and included a footnote that the brief was not intended as the Rule 59 motion for a new trial. The other brief related to judgment as a matter of law under Rule 50(a) and included additional justifications beyond Werner’s oral motions, such as the doctrine of “avoidable consequences.” On June 10, 2022, Handley filed a single response brief, which only addressed the motion for a mistrial and did not cite any procedural rules.

*2 On June 17, 2022, the district court denied mistrial and entered the jury’s verdict. The order issued that day did not mention Rule 50. On July 15, 2022, Werner filed a renewed motion for judgment as a matter of law under Rule 50(b) or alternative Rule 59 motion for a new trial.¹ Handley’s response mentioned both Rule 59 and Rule 50(b). Since the district court had never ruled on the Rule 50(a) motion, the district court reviewed and denied all three motions—under Rule 50(a), Rule 50(b), and Rule 59—in its February 7, 2023, order. Werner timely appealed.

II. Standard of Review and Applicable Law

We review the district court’s ruling on a motion for judgment as a matter of law de novo and apply the legal standard used by the district court. McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir. 2016). A motion for judgment as a matter of law may be granted when “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1). We use the same standard for reviewing motions for judgment as a matter of law under both Rule 50(a) and Rule 50(b). McGinnis, 817 F.3d at 1254. Renewed motions for judgment as a matter of law under Rule 50(b) must be made on the same grounds as the initial motions under Rule 50(a). Id. at 1260. We recognize the potential harshness of this rule and therefore use a liberal approach “when confronting grounds that are ‘closely related’ to those raised in an initial” motion for judgment as a matter of law. Id. at 1261. When determining if the verdict has sufficient supporting evidence, we “evaluate all the evidence, together with any logical inferences, in the light most favorable to the non-moving party.” Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1560 (11th Cir. 1995).

We review a denial of a motion for a new trial for abuse of discretion. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001). A motion for a new trial should be granted when either “the verdict is against the clear weight of the evidence or will result in a miscarriage of justice.” Id. (quoting Hewitt v. B.F. Goodrich, Co., 732 F.2d 1554, 1556 (11th Cir. 1984)). A judge should only grant a new trial when “the verdict is against the great—not merely the greater—weight of the evidence.” Id.

In a diversity case such as this, we apply the substantive law of the forum state, so we apply Georgia’s substantive law here. See Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1168 (11th Cir. 2023).

III. Arguments on Appeal

Werner raises a few arguments on appeal. First, Werner argues that it is entitled to judgment as a matter of law either because Handley did not establish negligence or under the doctrine of avoidable consequences. Alternatively, Werner argues that it is entitled to a new trial. We will address each argument in turn.

a . Judgment as a Matter of Law

First, Werner argues that Handley produced insufficient evidence for a reasonable jury to find for her on negligence. Under Georgia tort law, Handley bore the burden of proving that Werner (1) owed a duty to Handley; (2) Werner breached this duty; (3) this breach caused Handley’s injury; and (4) Handley suffered damages. See Heston v. Lilly, 546 S.E.2d 816, 818 (Ga. Ct. App. 2001). Werner and Handley dispute causation.

*3 Undoubtedly, the evidence about the accident is conflicting. Handley admitted a murky memory of the moments leading up to the crash. The police report assigned fault to Handley but listed the tractor-trailer as being in the left travel lane and lacked witness statements. The jury heard witness testimony from Albert Edmonds who consistently maintained that Krisak drove erratically and appeared lost on the day of the accident. Krisak’s trial testimony indicated that he was driving based on a map and verbal directions and was hit as he was changing lanes. When all evidence is viewed in the light most favorable to Handley, the jury had sufficient evidence to reasonably reach its verdict. The district court properly denied Werner’s motion for judgment as a matter of law regarding negligence.

Second, Werner argues it should have received judgment as a matter of law under the doctrine of avoidable consequences. Werner frequently conflates causation and avoidable consequences. In Georgia, the doctrine of avoidable consequences is an affirmative defense, whereby “[t]he defendant has the burden of proving that the plaintiff by ordinary care could have avoided the consequences caused by the defendant’s negligence.” Reed v. Carolina Cas. Ins. Co., 762 S.E.2d 90, 94 (Ga. Ct. App. 2014). Avoidable consequences is an incomplete defense. O.C.G.A § 51-11-7.

Handley argues that we should not consider Werner’s argument about avoidable consequences because Werner first used the phrase in its supplemental briefs—not in its oral Rule 50(a) motions. Werner’s oral motions for judgment as a matter of law focused exclusively on causation. Handley alleges that the supplemental briefing was not related to the Rule 50(a) motions, which means that there was no mention of “avoidable consequences” to renew in a Rule 50(b) motion. We do not need to determine which motion the supplemental briefing related to because, either way, Werner did not meet its burden of showing the affirmative defense of avoidable consequences applies.

As the defendant, Werner bore the burden of proof regarding avoidable consequences. We consider granting judgment as a matter of law in favor of a party bearing the burden of proof an “extreme step” which “can be done only when the evidence favoring the claimant is so one-sided as to be of overwhelming effect.” United States EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1250 (11th Cir. 1997). Werner uses the phrase “avoidable consequences” but never states or proves the elements of the affirmative defense. Werner’s brief also repeatedly refers to Handley’s statement about taking her eyes off the road for five seconds prior to the accident. This is not enough, especially on an issue for which Werner bears the burden of proof. The district court properly denied Werner’s renewed motion for judgment as a matter of law regarding avoidable consequences.

b . New Trial

Werner argues that the district court should have granted its motion for a new trial. First, Werner asserts that inadvertently including ACE in the verdict form’s caption should automatically necessitate a new trial. Werner cites language that states “[i]n an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial.” Cent. of Ga. R.R. Co. v. Wooten, 295 S.E.2d 369, 372 (Ga. Ct. App. 1982) (quoting City Council of Augusta v. Lee, 264 S.E.2d 683, 687 (Ga/ Ct. App. 1980)). Other Georgia cases have interpreted this as permissive not mandatory. Denton v. Con-Way S. Express, 402 S.E.2d 269, 270 (Ga. 1991), disapproved of on other grounds by Grissom v. Gleason, 418 S.E.2d 27 (Ga. 1992) (“[A] litigant’s insurance policy is not only inadmissible, it can be the ground for a mistrial.”). Generally, these cases involve evidence of a party having insurance being considered by the jury. A case caption is not evidence.

*4 We have previously reviewed a scrivener’s error on a verdict form in combination with correct information on jury instructions for plain error. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1330–31 (11th Cir. 1999). Since the jury instructions in Farley used the proper terminology, reading the verdict form “in conjunction with the comprehensive and correct jury instruction” made the error harmless. Id. at 1331. Here, reading the erroneous case caption in conjunction with the correct case caption on the jury instructions—especially with proper party names given in oral jury instructions and throughout the four-day trial—clarified the proper parties in this case.

Further, we presume that juries follow the instructions they receive. Evans v. Michigan, 568 U.S. 313, 328 (2013). Here, the jury received instructions to not consider insurance during deliberations. Later, the error on the verdict form was pointed out immediately after the jury returned its verdict. When the court told the jury to review whether its verdict applied to only Werner or both Werner and ACE, it returned to say only Werner within six minutes. The erroneous caption is at most harmless error. Thus, the district court did not abuse its discretion in denying Werner’s motion for a new trial based on the erroneous caption.²

Second, Werner argues in the alternative that it is entitled to a new trial under Rule 59. Motions for new trials under Rule 59 will only be granted when the verdict was “against the clear weight of the evidence or will result in a miscarriage of justice.” Lipphardt, 267 F.3d at 1186 (quoting Hewitt, 732 F.2d at 1556).

The underlying verdict is neither against the clear weight of the evidence nor a miscarriage of justice. To argue about the weight of evidence, Werner cites Johnson v. FFE Transportation Services Inc., 227 F. App’x 780 (11th Cir. 2007), a rear end collision case. But the similarities end there. The jury in Johnson found the defendant 0% at fault and the plaintiff 100% at fault. Id. at 782. In contrast, the jury here allocated 60% of the fault to Werner and 40% of the fault to Handley. Completely assigning fault to the plaintiff in Johnson was against the clear weight of the evidence in that case, but the split allocation of fault here is not clearly wrong. Overall, the record does not indicate that the decision is against the great weight of the evidence or results in a miscarriage of justice. Therefore, the district court did not abuse its discretion in denying a new trial to Werner under Rule 59.

IV. Conclusion

For the reasons discussed above, we affirm the district court’s denial of Werner’s motions for judgment as a matter of law under Rule 50 and motion for a new trial under Rule 59.

AFFIRMED.

All Citations

Footnotes

1. The district court appeared to use JMOL A and JMOL B to refer to Werner’s first and second motions. Instead, we will use Rule 50(a) and Rule 50(b) to identify each motion.  
2. Werner’s assertion that the erroneous case caption exposed the jury to the existence of an insurance contract seems undermined by Werner’s own Exhibit A: the police report from the accident. Werner prepared Exhibit A and redacted the drivers’ dates of birth and Krisak’s telephone number. Werner did not redact any information about insurance. Instead, Werner left the lines listing ACE as the insurance company and policy number visible to members of the jury.  

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