United States District Court, E.D. Virginia,

Richmond Division.

DOMINION RESOURCE SERVICES, INC., Plaintiff,

v.

5K LOGISTICS, INC., Defendant and Third-Party Plaintiff,

v.

Daily Express, Inc., Third-Party Defendant.

Action No. 3:09-CV-315.

 

March 8, 2010.

 

MEMORANDUM OPINION

 

JAMES R. SPENCER, District Judge.

 

I. INTRODUCTION

 

THIS MATTER is before the Court on plaintiff Dominion Resource Services, Inc.’s (hereinafter “Dominion”) Motion for Summary Judgment on its breach of agreement claim against defendant 5K Logistics, Inc. (hereinafter “5K”). (Doc. No. 84.) Dominion seeks $192,072.50 in damages, plus attorney’s fees and costs. After hearing the parties and giving consideration to the briefs, it is the conclusion of the Court that the Motion should be granted.

 

II. BACKGROUND

 

A. Posture of Case

 

This case arises out of damages to a 20-ton heat exchanger that fell off of a truck while being transported for Dominion by third-party defendant Daily Express Inc. (hereinafter “Daily Express”), a motorcarrier hired by 5K. The accident occurred in 2006 and Dominion filed this suit on April 14, 2009, after failing to receive reimbursement from 5K. 5K has filed a third-party complaint against Daily Express and the heat exchanger’s manufacturer. Dominion’s Amended Complaint also states claims for negligence and breach of bailment duties. This Motion was filed on February 2, 2010, and oral arguments were heard on February 26.

 

All pending counts have been dismissed as to the manufacture, Thermal Engineering (USA) International. See Order Granting TEI’s Mot. Dis. (November 30, 2009).

 

In considering Dominion’s Motion, this Court has reviewed the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” submitted by both parties in order to determine whether there are any genuine issues as to the facts material to Dominion’s claims and 5K’s defenses. SeeFed.R.Civ.P. 56(c). After considering these materials, the Court finds the following facts cannot reasonably be disputed:

 

1. Dominion, a Virginia corporation, entered into a Master Services Contract (hereinafter “the Contract”) with 5K, a Pennsylvania corporation, in January 2004. The Contract provided that 5K would, “from time to time” be requested by Dominion, “through its duly authorized representatives” to “perform certain work.” This work could include “any such [w]ork performed by [5K] in the scope of its usual business” and specifications for this work might be set forth in subsequent “Work Order Agreement[s].” The Contract would “become effective and operative when [5K] first commences the performance of any job or the rendering of any particular service.” The parties agreed that the Contract would be governed by Virginia law. (Pl.’s Mem. Sup. Mot. Sum. J., Lord Decl., Ex. 1 at 1 & 22.)

 

2. The Contract required 5K to perform all work in a “good and workmanlike manner [,] to the full and complete satisfaction of [Dominion]”, “subject to all the terms and conditions of [the] Contract” and “any applicable Governmental Requirements.” 5K also agreed to employ “sound engineering practices and professional standards, with due diligence and without undue delay or interruption.” 5K warranted and guaranteed that all work would comply with the previously mentioned standards, would meet the other terms of the contract, and “be free from defects”. 5K further agreed to correct, or pay for the correction of, “all portions of the work that fail to conform to [these] warranties.” In addition to these commitments, 5K agreed to “comply with all federal, state and local laws, rules, regulations and ordinances applicable to the performance of the work.” (Lord Decl., Ex. 1 at 1, 5 & 14.)

 

3. According to the terms of the Contract, any and all provisions that apply to 5K also apply to its “officers, directors, employees, agents and subcontractors”. While 5K could, with the permission of Dominion, “assign any rights or delegate any duties or obligations” under the Contract, this assignment would not “relieve [5K] of responsibility for the due and full performance” of the Contract or absolve it from liability for “all acts and omissions of its assignees or other transferees.” (Lord. Decl., Ex. 1, at 2 & 18.)

 

4. Dominion established three standing purchase orders through which 5K billed it for ongoing work on a variety of projects, including the operation of a warehouse and cranes in Chambersburg, Pennsylvania, where the heat exchangers were stored before being loaded. (Def.’s Mem. Op. Mot. Sum. J., Golden Decl., Ex. 2 at 108-112.) Dominion also ordered specific services, including transportation services, by communicating with 5K via e-mail, phone, or fax. (Lord. Decl., Ex. 2 at 18-20, 34-36 & 113.) While no purchase order was ever issued for transportation services, and transportation services were never provided to Dominion using 5K’s trucks, 5K did own and operate trucks to move loads. (Golden Decl., Ex. 3 at 12-18.)

 

5. On August 21, 2006, Dominion contacted 5K and asked it to obtain quotes for the cost of transporting the heat exchangers from the Chambersburg warehouse to a construction site in Lusby, Maryland. (Lord Decl., Ex. 10.) 5K reported that it would cost $1,450 to move each piece of equipment but did not submit further information regarding the identity of the party that would actually transport the equipment. (Lord Decl., Ex. 3 at 55-56, Exs. 4 & 10.) Dominion agreed to 5K’s quoted price and instructed it to transport the heat exchangers. (Lord Decl., Ex. 3 at 55-56.)

 

6. 5K hired Daily Express to operate the trucks that would move the heat exchangers. On August 24, 2006, 5K loaded the two heat exchangers onto two trucks operated by Daily Express. (Lord Decl., Ex. 2 at 40-57.) The Daily Express drivers charged with securing the loads to the trailer beds did not “overstrap” the two exchangers as required by federal regulations and recommended by industry standards. (Lord Decl., Exs. 13 & 14.) The Daily Express drivers then departed the warehouse facility and began travelling toward Lusby. Enroute, one of the two heat exchangers fell from its trailer, sustaining damage. (Lord Decl., Ex. 14.) The exchanger was remounted and taken to Lusby, where delivery was refused by Dominion. (Lord Decl., Ex. 13.)

 

7. Dominion later had the damaged heat exchanger repaired by its original manufacturer at a cost of $192,072.50. (Lord Decl., Ex. 2. at 59-61; Ex. 7 at 19-22, 39, 44-45, 49-51; Exs. 18, 19, 20 & 21.)

 

8. 5K invoiced Dominion for the cost of transporting the two heat exchangers while Dominion attempted to collect reimbursement from 5K. 5K refused to reimburse Dominion. (Lord Decl., Exs. 2 & 23 .) In April 2009, Dominion sent a demand letter to 5K and on May 14, Dominion filed a Complaint against 5K.

 

III. APPLICABLE LAW

 

A district court has original jurisdiction over all civil actions where the matter in controversy exceeds the sum or value of $75,000 and the dispute is between citizens of different States. See28 U.S.C. § 1332 (2009). Where such diversity jurisdiction exists, a district court is to apply federal procedural rules and determine the substantive merits of each claim based on the law under which it arises. See Hanna v. Plummer, 380 U.S. 460, 465 (1965)(common law claims arise under state law).

 

A. Standard of Review on Summary Judgment

 

Summary judgment “provides a procedure with which to bypass a trial when the fact resolution process of trial would prove to be of no use in the disposition of a case.” Mitchell v. Data General Corp., 12 F.3d 1310, 1315 (4th Cir.1993). Thus, the “judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” if it “effects the outcome of the suit under the governing law” irrespective of evidentiary significance, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and it is “genuine” if there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249 (must be more than a “scintilla”). While a nonmoving party may not resist summary judgment solely by relying on the arguments in its pleadings, a court must credit a nonmovant’s evidence and draw all justifiable inferences in the nonmovant’s favor. Id. 248;see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(“must do more than … show … metaphysical doubt as to … material facts”); but see Barwick v. Celotex Corp., 736 F.2d 946, 959-60 (4th Cir.1984)(nonmoving party cannot manufacture issues of fact by contradicting own prior statements). While the nonmoving party need not produce evidence in a form that would be admissible at trial, see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)(non-movant need not depose own witnesses, summary judgment may be opposed by material listed in Rule 56(c), but “not mere pleadings themselves”), the Fourth Circuit and others have concluded that inadmissible hearsay cannot be considered on a motion for summary judgment. Maryland Highway Contractors Ass’n, Inc. v. State of Maryland, 933 F.2d 1246, 1251-52 (4th Cir.1991)(excluding unauthenticated letter and granting judgment in absence of “evidence”).

 

B. Virginia Breach of Contract Law

 

Under Virginia law, a party claiming breach of agreement or contract must establish three elements to prevail: first, there must be a legally enforceable obligation under a contract; second, there must be a breach of that obligation; third, injury or damage to the plaintiff must flow from that breach. See, e.g., Sunrise Cont. Care, LLC. v. Wright, 277 Va. 148, 154 (2009)(reversing summary judgment for plaintiff where damages were not linked to breach asserted).

 

Where two parties have entered into a contract, the terms of their agreement establish a set of duties owed. See, e.g., Pressen v. Ceres Marine Terminals, 5 F.3d 734, 738 (4th Cir.1993)(bill of lading establishes duties in admiralty). The interpretation of a contract to determine the nature and scope of these duties is typically a question of law, see Williams v. Prof’l Transp. Inc., 294 F.3d 607, 613 (4th Cir.2002), although the fulfillment of a condition precedent to performance or the occurrence of a breach is typically a question of fact. See Smith v. McGregor, 237 Va. 66, 75 (Va.1989) (finding that, as a matter of law, presentation of survey of land to be conveyed by contract was a condition precedent to buyer’s obligation to tender purchase price, but that, as a matter of fact, survey had not been presented and performance was excused). Under Virginia law, a court will only look past the four corners of a contract when a particular term is ambiguous in light of the facts and circumstances in which the contract was made. Virginia Elect. and Power Co. v. Northern Virginia Regional Park Authority, 270 Va. 309, 319 (2005) (declining to admit separate parole evidence regarding subjective intent). Language is ambiguous if it may be understood in more than one way or when it refers to two or more things at the same time, and where such ambiguity exists, uncertain rights under a contract may be determined and fixed by the course of dealing of the parties. Video Zone, Inc. v. KF & F Properties, L.C., 267 Va. 621, 627 (2004)(declining to overturn grant of summary judgment where judicial construction of contract was in keeping with party’s course of performance).

 

While a party may delegate the performance of its duties under a contract, it may not assign the ultimate obligation to perform without the other party’s consent. See Rest. (2d) Cont., § 318(3)(1981); cf. Boland v. Rivanna Ptnrs., 69 Va. Cir.208, 311-12 (2005)(landlord may delegate maintenance obligations but not duty to maintain). Thus, under Virginia law, where a party guarantees that “workmanship” will be “first-class” and “satisfactory in every respect”, the guarantor must tender performance in a manner which “would be satisfactory to a reasonable man”, regardless of whether the guarantor actually performs the work. Lambert v. Jenkins, 112 Va. 376, *719-20 (1911)(guarantee protects contracting party from defective materials used by subcontractor). The same principle has long applied where a guarantee has been made for “all acts or omissions of … employees and all subcontractors”, Walker Mfg. Co. v. Dickerson, Inc., 619 F.2d 305, 308 (4th Cir.1980)(general contractor liable for defective roof installed by subcontractor), and is an “unremarkable principle of law”. Carrollton Bank v. Fujitsu Transaction Solutions, Inc., 56 Fed. App’x. 603 (4th Cir., Jan. 23, 2003).

 

The damages claimed by a plaintiff in a breach of contract suit must not only be proven to flow from the breach but must be proven with “reasonable certainty” and not merely based on speculation. Sunrise Cont. Care, LLC, 277 Va. at 148. Further, while a party may only be held liable for the reasonable costs which arise from his breach of an obligation, where a plaintiff presents bills for remedial measures that are reasonable on their face, they constitute at least some evidence of what reasonable damages would be. Walters v. Littleton, 223 Va. 446, 452 (1982)(medical bills sufficient in light of other facts, but not conclusive evidence of reasonable expenses); see also Atlantic Permanent Federal Sav. and Loan Ass’n v. American Cas. Co. of Reading, Pa., 839 F.2d 212, 218 (4th Cir.1988)(surveying cases and finding that such bills likely constitute prima facie evidence).

 

IV. DISCUSSION

 

In light of the forgoing findings of fact and the applicable law, it appears that Dominion has shown both the absence of genuine issues of material fact and its own entitlement to judgment as a matter of law on its breach of agreement claim.

 

First, on the record now before the Court, there cannot be any genuine issue as to the fact that the Master Service Contract created a set of obligations which 5K undertook whenever it performed work for Dominion that was “in the scope of its usual business.” The applicability of the Contract thus turns on whether 5K was performing work at the request of Dominion or its “duly authorized representatives”, not on the filing of a Work Order Agreement or purchase order, although such a document could impose additional obligations on 5K. While the Contract does not define 5K’s usual scope of business, it cannot be disputed that 5K owned and operated trucks and that in its dealings with Dominion under the Contract 5K sought to be, and held itself out as, a one stop shop for Dominion’s logistical and transportation needs. Similarly, it cannot be disputed that Dominion, through its representative, asked 5K to transport the heat exchangers. Thus, there can be no real dispute as to the fact that the work was performed under the Contract and that 5K was obligated to perform in a “good and workmanlike manner”, as well as to comply with “professional industry standards” and all “laws, rules, regulations and ordinances applicable” and to perform work “free from defects”. Similarly, there can be no dispute that 5K was obligated to “correct any work or re-perform any work that fails to conform” to 5K’s warranties and to indemnify Dominion against any losses, and that “any assignment of this [Contract] shall not … relieve [5K] of responsibility for the due and full performance thereof” and “[5k] shall be liable to [Dominion] for all acts and omission of its assignees or other transferees.” Such liability is in keeping with long established Virginia law. See e.g., Walker Mfg. Co., 619 F.2d at 308.

 

While 5K has argued that since the term “scope of … usual business” is ambiguous, it should be construed against Dominion in such a way as to exclude services which involve the actual movement of equipment, and not merely the hiring of motorcarriers, 5K mistakes the nature of the inquiry at issue. Defining the term “scope of … usual business” does require the Court to refer to facts and circumstances beyond the four corners of the Contract. However the understanding of any term within a document requires reference to facts and circumstances in the actual world. See, e.g., Virginia Elec. and Power Co., 270 Va. at 319. The mere fact that the phrase “scope of … usual business” is undefined in the contract does not make it susceptible to multiple meanings or ambiguous. 5K had a usual scope of business at the time it signed the Contract and this business including moving loads on trucks, thus, in light of the facts and circumstances in existence at the time of the Contract’s signing, there is no ambiguity as to whether the services at issue here were covered. Further, to the extent that the term is ambiguous, 5K’s hiring of contractors unknown to Dominion and billing of Dominion directly for the services rendered, strongly suggests that 5K was acting as a general contractor and not merely as a broker of services. In any event, 5K has produced no evidence other than the bald assertions of its own employees that such a distinction is appropriate, and this is not enough to create an issue for trial by a jury. See Matsushita Elec. Indus. Co., Ltd ., 475 U.S. at 586;also Barwick, 736 F.2d at 959-60.

 

Second, on the record now before the Court, there cannot be any genuine issue as to the fact that when 5K failed to take proper precautions to secure the heat exchangers and one of them subsequently fell off of a truck, 5K breached a duty it had under the Contract. In the Contract, 5K warranted and guaranteed that the heat exchangers would be transported in a “good and workmanlike” to the “full and complete satisfaction” of Dominion. 5K also agreed to ensure that its work complied with all professional standards and applicable government regulations. 5K has not even bothered to argue that the method by which the heat exchangers were moved would be “satisfactory to a reasonable man”, see Lambert, at *719-20, and Dominion has presented uncontested evidence showing that the failure to overstrap the heat exchangers was a violation of both professionals standards and applicable government regulations. While 5K may have delegated the duty of securing the loads to Daily Express, it could not delegate its ultimate responsibility for ensuring that this job was done properly. See Walker, at 619 F.2d at 308. Thus, 5K was in breach of the Contract with Dominion.

 

Third, on the record before the Court, there can be no genuine issue as to the fact the damage to the heat exchangers arose from 5K’s breach and that $192,072.50 is both a reasonable and certain measure of damages. Dominion has presented both a report detailing the manner in which the heat exchanger was damaged and invoices for the repairs performed upon it. 5K has not bothered to contest the evidence presented by Dominion that the failure to properly secure the heat exchangers was the cause of the accident. While 5K has argued that the amount paid to repair the exchanger has not been proven reasonable, under Virginia law these bills constitute some evidence of the reasonable amount of damages, see Sunrise Cont. Care, LLC, 277 Va. at 148, and, in light of all of the circumstances, this Court is satisfied that the costs are reasonable. See Atlantic Permanent Federal Sav. and Loan Ass’n, 839 F.2d at 218 (finding that a Virginia court would likely accept such uncontroverted evidence as conclusive).

 

Fourth, in light of the foregoing, it is clear that Dominion has shown its entitlement to judgment as a matter of law. Given the size of the damages alleged and the diversity of citizenship between Dominion and 5K, this matter is properly before this Court. See28 U.S.C. § 1332. The parties have stipulated that this contract is governed by Virginia law, and under the law of Virginia a plaintiff in a breach of contract suit must show the existence of a contractual duty, the breach of that duty, and damages flowing from that breach. See Sunrise Cont. Care, LLC, 277 Va. at 154. Based on the pleadings, discovery and disclosure materials, and the affidavits filed by the parties, there is no element of this claim upon which a reasonable jury could find otherwise than for Dominion.

 

To be sure, 5K has raised arguments in which it suggests that even if Dominion has made a prima facie case, summary judgment is inappropriate at this time. However, each of these rests either on an unstable foundation of fact or an infirm construction of the applicable law. 5K has argued that in the absence of a formal work order agreement, it had no obligation to perform under the Contract. However, as the Court has previously explained, the condition precedent to 5K’s duty to perform under the contract was a request from Dominion or its authorized representatives, not the filing of a work order agreement imposing additional requirements on 5K. Further, under Virginia law, where a party commences performance, it waives any right to assert condition precedent as defense to a contract. See, e.g., Ehrlich, at 217 Va. at 116. 5K has also argued, although it appeared to abandon these positions at hearing, that Dominion’s claims might either be preempted by the Carmack Amendment or barred by the doctrine of laches, since they were not filed within the time periods outlined in the bill of lading prepared by Daily Express. Since 5K is not itself a motorcarrier or freight forwarder within the meaning of the Carmack Amendment, see49 U.S.C. § 13102 (defining terms), the Carmack Amendment has no bearing on the contractual relationship between Dominion and 5K. Further, in light of this Court’s recent ruling on Daily Express’s Motion to Dismiss 5K’s Third Party Complaint, 5K has not been unfairly prejudiced by Dominion’s delay in bringing its suit. Moreover, there is authority under Virginia law for the proposition that the doctrine of laches may not be asserted where the statute of limitations on a contract claim has not run, see, e.g., Merrifield Indus. Corp. v. Glaze, 77 Va. Cir. 264, 270 (2008), and under Virginia law, the statute of limitations on a breach of contract claim is five years. SeeVa.Code §§ 8.01-243 & 246.

 

Finally, the Court would like to give special attention to one argument raised by 5K that is particularly troubling. In opposing summary judgment, 5K has advanced the theory that Dominion itself may have given the drivers an instruction not to overstrap the heat exchangers. The basis for this argument is that the unidentified driver of the second Daily Express truck, who was not involved in an accident, overheard a Dominion employee give this instruction. This unidentified employee allegedly repeated this information to the driver of the truck from which the heat exchanger did fall, and this second driver allegedly reported the comment in a report which was read by one of the Daily Express employees who repeated it during a deposition. While it may be true that under Virginia law an injured party cannot recover for a breach of contract when the other party’s failure to perform was a result of the injured party’s own actions, there is no evidence in the record to support such a defense. All that 5K has proffered in support of this theory are arguments based on compound hearsay. This cannot be considered on a motion for summary judgment. See Maryland Highway Contractors Ass’n, Inc., 933 F.2d at 1251-52 (hearsay excluded); see also Celotex, 477 U.S. at 324 (party cannot rely on arguments in briefs alone). The fact that this type of statement would even be proffered as evidence is disappointing and the parties are advised to consider carefully their theories of admissibility before attempting to introduce this material again.

 

IV. CONCLUSION

 

Since the fact resolution process of trial is unnecessary to the disposition of Dominion’s claims and 5K’s defenses, the Court finds that summary judgment should be granted to Dominion on both the question of 5K’s liability under the Contract and the amount of 5K’s liability, which totals $192,072.50 in damages, plus fees and costs.

 

An appropriate Order shall issue.

Supreme Court of Alabama.

Lisa DIXON, as administratrix of the estate of Maurine Humphreys, deceased

v.

HOT SHOT EXPRESS, INC., and John Jenkins.

1070960.

 

March 5, 2010.

 

MURDOCK, Justice.

 

Lisa Dixon, administratrix of the estate of Maurine Humphreys, appeals from a judgment entered on a jury verdict in favor of Hot Shot Express, Inc. (“Hot Shot”), and its employee, John Jenkins, in Dixon’s wrongful-death action. We affirm.

 

I. Facts and Procedural History

 

Hot Shot is an interstate motor-carrier company based in Pennsylvania. Jenkins, a resident of Georgia, is an owner-operator of a tractor-trailer who “leased” his truck and trailer, as well as his own services in operating the truck and trailer, to Hot Shot under a long-term lease that effectively made Hot Shot his employer. In October 2002, Jenkins began a cross-country hauling trip for Hot Shot. Humphreys, a woman in her 70s who had been friends with Jenkins for several years, decided to accompany Jenkins on the trip. The journey took them from Georgia through numerous states before passing through Alabama on their way back to Georgia.

 

On November 2, 2002, Jenkins exited a limited access portion of U .S. Highway 78 in Winfield, Alabama, and discovered that two tires on his trailer had blown out. Jenkins decided to leave the trailer in Winfield for service and to continue the journey back to Georgia with Humphreys in his tractor without the trailer. Jenkins and Humphreys continued traveling east on U.S. Highway 78 through Walker County. Testimony at trial indicated that a heavy rain fell as Jenkins proceeded on the highway. As Jenkins entered Carbon Hill, the speed limit decreased, and Jenkins testified that he applied his brakes to slow down as he approached a curve in the road. When he did so, the truck hydroplaned, crossing the center lane into a lane of oncoming traffic. The truck was struck on the right passenger side by an oncoming tractor-trailer. Humphreys was killed in the collision.

 

In March 2003, Dixon, as administratrix of Humphreys’s estate, filed a wrongful-death action against Hot Shot and Jenkins in the Walker Circuit Court. Thereafter, Dixon filed a motion for a partial summary judgment, contending that the Federal MotorCarrier Safety Regulations, specifically 49 C.F.R. § 392.14, enacted pursuant to the Federal MotorCarrier Safety Act, 49 U.S.C. § 13902 et seq., preempt Alabama’s guest statute, § 32-1-2, Ala.Code 1975,  concerning the duty Jenkins owed to Humphreys. In response, Hot Shot and Jenkins filed their own motion for a summary judgment contending that Alabama’s guest statute applied and was not preempted by federal regulations and, among other things, seeking a judgment in their favor as to Dixon’s negligence claim. The trial court denied Dixon’s motion and granted Hot Shot and Jenkins’s motion, concluding that there was “no support for the proposition that the Federal MotorCarrier Safety Regulations preempt the Alabama Guest Passenger Statute.” It also determined that Humphreys was a guest of Jenkins’s and that, as a result, the guest statute applied in this action.

 

The action was tried before a jury. At the close of the evidence, Dixon requested that the jury be charged as to the content of 49 C.F.R. § 392.14, which provides, in pertinent part:

 

“Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.”

 

Dixon also requested that the jury be charged as follows: “Under Alabama law, no person may operate a commercial motor vehicle in this state in violation of the Federal MotorCarrier Safety Regulations as prescribed by the U.S. Department of Transportation.” Dixon requested this charge pursuant to § 32-9A-2(a)(1), Ala.Code 1975, which provides, in pertinent part:

 

“[N]o person may operate a commercial motor vehicle in this state, or fail to maintain required records or reports, in violation of the federal motorcarrier safety regulations as prescribed by the U.S. Department of Transportation, 49 C.F.R. Part 107, Parts 171-180, Parts 382-384, and Parts 390-399 and as they may be amended in the future. Except as otherwise provided herein, this chapter shall not be construed to repeal or supersede other laws relating to the operation of motor vehicles.”

 

The trial court denied both requested charges, providing the following explanation on the record:

 

“THE COURT: … I don’t see anywhere in the Pattern Jury charges, and I had just worn out both volumes of them last night, that mentions the-I don’t find anything that mentions the-Pattern Jury charges, a single thing that mentions the Federal MotorCarrier Vehicle Safety Regulations, period. There is nothing there. Now, I will say this: It’s not left out because of that because Alabama has chosen to ignore anything the federal government does because …. there are instances in our Pattern Jury Instructions where they talk extensively about standards that are set by federal acts…. [This] [l]eads me to believe that the Supreme Court doesn’t want me charging on those [federal regulations].

 

“….

 

“MR. SHIGLEY [Dixon’s counsel]: I would suggest that it’s an oversight. You do have a code section that in Alabama says it’s unlawful for them to operate on the road in violation of the Federal MotorCarrier Safety Regulations.

 

“THE COURT: I understand that, and to me that’s further proof that the Supreme Court, who has approved these Pattern Jury Instructions and given them to us dumb old judges, trial court judges, to properly charge the juries with, they don’t want us bothered with it.

 

“I think that brings us back to the arguments that [Hot Shot and Jenkins] were making earlier on in the case, which is simply the fact that a person does not comply with the Federal MotorCarrier Safety Standards Act, the fact that they failed to comply with it, is not a-is not negligence or is not wantonness. But the conduct that the person does that may also be a violation of the Federal Regs. could rise to the level of being negligence or wantonness.

 

“So, take all of that, couple it with the fact that there is no mention of the Federal MotorCarrier Safety Regulations leads me to believe that I’m simply supposed to charge in this case as I would in any automobile accident, and that’s where I see it, and so that then puts me to making a fairly standard charge on the Guest Statute, willfulness and wantonness, leave out all sorts of contrib[utory negligence], just like we got two folks riding down the road in a car.”

 

The trial court charged the jury according to Alabama’s guest statute as follows:

 

“Now, let’s talk about the issues that are involved in this case. Early on in this case it was determined that on the occasion of this motor vehicle collision Maurine Humphreys was a guest in the motor vehicle driven by John Jenkins. That determination brings up the following: The driver of a motor vehicle upon a public highway owes to a guest in the driver’s vehicle the duty not to willfully or wantonly injure the guest. Such a driver is not liable for negligently inflicting injury upon the guest.

 

“Now, I’m now going to read you a Code Section out of the Alabama Code. This is Code of Alabama, 1975, Section 32-5A-170. ‘No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching or going around a curve when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.’

 

“Negligence is the failure to discharge or perform a legal duty owed to the other party. Negligence means the failure to exercise reasonable ordinary care; that is, such care as a reasonably prudent person would have exercised under the same or similar circumstances. Therefore, negligence is the failure to do what a reasonably prudent person would have done under the same or similar circumstances, or the doing of something which a reasonably prudent person would not have done under the same or similar circumstances.

 

“Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty an injury will likely or probably result. Before a party can be said to be guilty of wanton conduct, it must be shown that with reckless indifference to the consequences he either consciously and intentionally did some wrongful act or consciously omitted some known duty which produced the injury.

 

“….

 

“Willfulness means intentionally, knowingly, and purposefully. Therefore, willfulness is the conscious doing of some act or omission of some duty under knowledge of existing conditions coupled with a design or purpose to inflict injury.

 

“The plaintiff claims the defendant, John Jenkins, willfully or wantonly operated a motor vehicle he was driving at the time of the collision that is the subject of this lawsuit, and that his willfulness or wantonness proximately caused the death of Maurine Humphreys. The defendant in answer to the plaintiff’s complaint denies that he was willful or wanton and denies that he brought about the death of Maurine Humphreys.

 

“This presents for your determination the following: Was the defendant, John Jenkins, guilty of willfulness or wantonness as claimed by the plaintiff? If so, was such willfulness or wantonness of John Jenkins the proximate cause of the death of Maurine Humphreys as claimed?”

 

Following the charge, Dixon again objected to the trial court’s failure to instruct the jury regarding the Federal MotorCarrier Safety Regulations. After initial deliberations, the jury asked a question about the distinction between willfulness and wantonness, and the trial court further instructed the jury in pertinent part as follows:

 

“Now, our Guest Statute-we follow under the Guest Statute in this case, and the-here is the obligation of a driver of a motor vehicle to someone who is a guest in the vehicle with him. Now, the guest is someone who is not paying to ride, who is someone that’s just been invited to go along. The driver of a motor vehicle upon a public highway owes a guest in the driver’s vehicle a duty not to willfully or wantonly injure the guest. That’s two levels of culpability. I will explain them to you in a minute.

 

“The next sentence of that rule says this: Such a driver is not liable for negligently inflicting injury upon a guest….

 

“….

 

“Negligence is the failure to discharge or perform a legal duty owed to the other party. I’ll go into a little bit more detail on that. Negligence means the failure to exercise reasonable ordinary care; that is, such care as a reasonably prudent person would have exercised under the same or similar circumstances. Therefore, negligence is the failure to do what a reasonably prudent person would have done under the same or similar circumstances, or the doing of something which a reasonably prudent person would not have done under the same or similar circumstances….

 

“….

 

“… The next-all right. So under the Guest Statute if a person is guilty of negligence, then the plaintiff cannot recover.

 

“The next level of culpability is wantonness. Now, again, looking at the Guest Statute, the plaintiff can only recover if the defendant is guilty of wanton conduct or willful conduct, doesn’t have to be both. In fact, they’re not the same. And let me explain that to you again.

 

“I am going to give a charge that I did not give initially. It’s [Alabama Pattern Jury Instruction] 29.01. Willfulness and wantonness distinguished. Now, wantonness is the conscious doing of some act or the omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such injury-I’m sorry, or omission of such duty, injury will likely or probably result. Let me read that to you again. Wantonness is the conscious doing of some act or the omission of some duty under the knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result.

 

“Willfulness is the conscious doing of some act or omission of some duty under knowledge of existing conditions accompanied by a design or purpose of inflicting injury.”

 

Following further deliberations, the jury returned a verdict in favor of Hot Shot and Jenkins. Dixon appeals, contending that the trial court erroneously instructed the jury concerning the duty Jenkins owed Humphreys.

 

II. Standard of Review

 

“ ‘ “ ‘[A]n incorrect or misleading charge may be the basis for the granting of a new trial.’ “ ‘ George H. Lanier Mem’l Hosp. v. Andrews, 809 So.2d 802, 806 (Ala.2001) (quoting King v. W.A. Brown & Sons, Inc., 585 So.2d 10, 12 (Ala.1991) (citation omitted)). ‘When an objection to a jury charge has been properly preserved for review on appeal, … we “ ‘look to the entirety of the [jury] charge to see if there was reversible error,’ “ and reversal is warranted only if the error is prejudicial.’ George H. Lanier Mem’l Hosp., 809 So.2d at 807 (quoting King, 585 So.2d at 12).”

Baldwin County Elec. Membership Corp. v. City of Fairhope, 999 So.2d 448, 459 (Ala.2008).

 

III. Analysis

 

Dixon contends that the trial court erred in failing to properly instruct the jury by not incorporating the prescriptions of 49 C.F.R. § 392.14 into its charges. She further contends that the trial court should not have instructed the jury as to wantonness and/or willfulness under Alabama’s guest statute, § 32-1-2, Ala.Code 1975, because, she argues, the Federal MotorCarrier Safety Regulations preempt state law concerning the types of breaches of the standard of care for which a party may be held liable. Dixon argues that these errors in instructing the jury were prejudicial to her case because of the stark difference between the “extreme caution” standard in 49 C.F.R. § 392.14 and the wanton and/or willful standard in § 32-1-2, Ala.Code 1975.

 

We cannot agree that the trial court erred by refusing to instruct the jury on the prescriptions of 49 C.F.R. § 392.14, rather than on Alabama’s common-law concepts of willfulness and wantonness. Hot Shot and Jenkins’s brief makes the correct response to Dixon’s position. As they first explain, there is a presumption against preemption:

 

“The appellant contends that Alabama’s Guest Passenger Statute is preempted by 49 C.F.R. § 392.14. Any preemption analysis begins first with the presumption against preemption. The United States Supreme Court has clearly mandated that ‘preemption of state law by Federal statute or regulation is not favored “in the absence of pervasive reasons-either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakably so ordained.” ‘ Commonwealth Edison Co. v. Montana, 453 U.S. 609, 634, 101 S.Ct. 2946, 2962, 69 L.Ed.2d 884 (1981) (quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co. ., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981)). There is a presumption ‘that Congress did not intend to displace state law.’ Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). Indeed, courts are instructed to ‘start with the assumption that the historic police powers of the states were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 643, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973) (quoting, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).”

 

Hot Shot and Jenkins’s brief, at 11-12 (emphasis added).

 

As the United States Court of Appeals for the Fourth Circuit has explained:

 

“The principles governing the circumstances under which preemption may arise … may be summarized as follows: first, when acting within constitutional limits, Congress has expressly stated an intention to preempt there is preemption; second, though it has not expressly preempted a field or an identifiable portion thereof, preemption exists if Congress has adopted a ‘scheme of federal regulation … sufficiently comprehensive to make reasonable the inference that Congress left no room … for supplementary state regulation;’ and finally, ‘where the field is one in which “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” ‘ or ‘when “compliance with both federal and state regulation is a physical impossibility,” ‘ there will be preemption. [ Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985) ]. In applying these principles, though, it is important to bear in mind that ‘where the state’s police power is involved, preemption will not be presumed.’ Chrysler Corp. v. Rhodes, 416 F.2d 319, 324, n. 8 (1st Cir.1969).”

 

Specialized Carriers & Rigging Ass’n v. Virginia, 795 F.2d 1152, 1155 (4th Cir.1986)(emphasis added). See also Wyeth v. Levine, [No. 06-1249, March 4, 2009 ] — U.S. —-, —-, 129 S.Ct. 1187, 1194-95, 173 L.Ed.2d 51 (2009) ( “ ‘[I]n all pre-emption cases, and particularly in those in which Congress has “legislated … in a field which the States have traditionally occupied,” … we “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” ‘ ”).

 

Hot Shot and Jenkins begin their analysis by explaining that Dixon has not argued that 49 C.F.R. § 392.14expressly preempts state law. Hot Shot and Jenkins then contend, correctly, why one cannot conclude that Congress intended “to occupy completely the field of safety regulations” for the operation of commercial vehicles:

 

“Dixon has not argued that 49 C.F.R. § 392.14 expressly preempts state law. Nor would this position find any support. While the regulation in question was authorized by the MotorCarrier Safety Act, 49 U.S.C. § 2501 et seq., Congress made clear that the Act did not intend to completely preempt supplementary state regulation. In Section 206(c)(2) of the Act, which authorizes the promulgation of federal safety regulations for motor vehicles, for instance, the Secretary was directed, before issuing any regulations, to ‘consider … (B) State laws and regulations pertaining to commercial motor vehicle safety in order to minimize unnecessary preemption of such State laws and regulations under this Act.’ Congress also provided in Sections 2506 and 2507, 49 U.S.C., a method under which State laws and regulations could be reviewed, under a rule-making procedure, for compatibility with the federal Act. It further in Section 2302, 49 U .S.C., authorized financial grants to the States for ‘the development or implementation of programs for the enforcement of Federal rules, regulations, standards and orders applicable to commercial motor vehicle safety and compatible State rules, regulations, standards, and orders.’ Indeed, the United States Court of Appeals for the Fourth Circuit concluded that ‘[u]nquestionably, these Sections demonstrate, not only that Congress did not intend to occupy completely the field of safety regulations for the operation on interstate highways of commercial vehicles but also that it contemplated the continued application and enforcement of State rules or regulations which might not be inconsistent or “incompatible” with federal regulations.’ Specialized Carriers & Rigging [Ass’n] v. Commonwealth of Virginia, 795 F.2d 1152, 1156 (4th Cir.1986).”

 

Hot Shot and Jenkins’s brief, at 12-13 n. 1 (emphasis added).

 

As for implied preemption, Hot Shot and Jenkins acknowledge that implied preemption can arise where state law and federal law actually conflict, citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Hot Shot and Jenkins correctly note that such

 

“ ‘actual conflict’ ‘arises either where simultaneous compliance with both state and federal law is impossible, Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or where state law stands as an obstacle to accomplishment of the federal purpose.   Silkwood, supra, 464 U.S. at 248, 104 S.Ct. at 621. Furthermore, in order to justify a finding of implied preemption, the actual conflict must be a ‘sharp’ conflict. Boyle v. United Tech. Corp., 487 U.S. 500, 108 S.Ct. 2510, 2515, 101 L.Ed.2d 442 (1988).”

 

Hot Shot and Jenkins’s brief, at 12-13. Hot Shot and Jenkins then proceed to explain that the Federal MotorCarrier Safety Act and 49 C.F.R. § 392.14 do not conflict with Alabama law:

“While violations of the Federal MotorCarrier Safety Regulations can lead to the revocation of a carrier’s operating authority, can place a driver out of service, or can lead to the suspension of a driver’s commercial driver’s license (see, e.g., § 32-9A-4, Ala.Code 1975), the regulations give no indication that Congress intended to preempt any of the traditional functions of state law with respect to tort liability. Nor is any conflict apparent between Section 392.14 and the Alabama Guest Passenger Statute.”

 

Hot Shot and Jenkins’s brief, at 15-16 (emphasis added).

 

Hot Shot and Jenkins’s argument is well taken. Failing to fulfill a federal regulatory responsibility does not equate to tort liability under state law. The federal regulation at issue speaks to the responsibility the operator of a commercial motor vehicle owes to everyone while the operator is driving in “hazardous conditions.” It does not purport to create a cause of action for the failure to exercise “extreme caution” in “hazardous conditions,” and Dixon has directed us to no provision of the federal regulations governing Jenkins’s conduct that mandates such a conclusion. As such, the federal regulation at issue does not conflict with Alabama tort law.

 

As noted, the overarching concern in any preemption analysis, as in any statutory interpretation, is legislative intent. We note the above-described field of operation for the regulation in question, the fact that neither the Federal MotorCarrier Safety Act nor the federal regulation makes any mention of replacing state tort-law standards for liability to third parties with federal standards, and the fact that the MotorCarrier Safety Act, instead, expressly provides that any regulations adopted in furtherance of the Act should be limited so as “to minimize unnecessary preemption” of state law pertaining to commercial-motor-vehicle safety. We cannot conclude that the Federal MotorCarrier Safety Act reflects the requisite “clear and manifest purpose of Congress” to preempt the “historic police powers of the states” in establishing standards for tort liability among their citizens. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947).

 

In addition, Dixon has failed to demonstrate how the application of Alabama’s guest statute, which is based on a legitimate state interest and which simply limits the cause of action of passengers in motor vehicles, would be inconsistent with or incompatible with § 392.14. There is nothing in the federal regulatory scheme that suggests a preemption of that portion of state law providing for various defenses and exceptions to liability. Of more specific relevance to this case, there is no basis in the Federal MotorCarrier Safety Act or the federal regulation to conclude that Congress intended to eliminate state tort-law limitations on the liability of commercial truck drivers to persons who are guests in their vehicles.

 

IV. Conclusion

 

Absent federal preemption, we see no significant question as to whether the trial court properly charged the jury. The trial court’s charge relating to Alabama’s guest statute and the definitions of wantonness and willfulness were all in accordance with Alabama law. We therefore affirm the trial court’s judgment.

 

AFFIRMED.

 

WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

LYONS, J., concurs specially.

COBB, C.J., dissents.LYONS, Justice (concurring specially).

I concur fully in the main opinion. I write specially to note the distinction between this case and this Court’s decision in Weatherspoon v. Tillery Body Shop, Inc., [Ms. 1081131, February 12, 2010] — So.3d —- (Ala.2010). In Weatherspoon, the trial court dismissed the plaintiff’s claims against the defendant, a motorcarrier of property, because the claims were preempted under the Federal Aviation Administration Authorization Act of 1994 and the ICC Termination Act of 1995, 49 U.S.C. § 14501(c). Based on the language of § 14501(c)(1), which provides: “a State, [or] political subdivision of 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 motorcarrier,” this Court in Weatherspoon affirmed the trial court’s judgment based on its holding that the plaintiff’s claims were preempted.

 

The parties in this action have not raised any argument regarding preemption under § 14501(c). Additionally, in this case, as the main opinion notes, Congress directed the Secretary of Transportation, in prescribing 49 C.F.R. § 392.14-the regulation upon which Dixon based her requested jury instruction-to consider “State laws and regulations on commercial motor vehicle safety, to minimize their unnecessary preemption.” 49 U.S.C. § 31136(c)(2)(B) (emphasis added). Congress included no such language in the statutes that governed our analysis in Weatherspoon, nor did the issues presented there relate to safety considerations, a matter expressly excluded by the statutes under review in Weatherspoon. Based on the foregoing distinctions, I concur in the main opinion.

 

COBB, Chief Justice (dissenting).

I respectfully dissent. I do not believe that the trial court’s charge based solely on Alabama’s guest statute, Ala.Code 1975, § 32-1-2, provided the jury with the appropriate information on which to reach a just verdict in this case. I do not advocate federal preemption of the guest statute in favor of 49 C.F.R. § 392.14, nor do I contend that that regulation should give rise to a new cause of action. Rather, I would hold that the contents of that regulation are necessary to the jury’s consideration of whether John Jenkins violated the appropriate standard of care in such a manner as to be a proximate cause of the accident that resulted in Maurine Humphrey’s death. The majority opinion, citing the federal regulations and Ala.Code 1975, § 32-9A-2(a)(1), makes clear that our legislatures, both state and federal, recognize that the operation of a commercial motor vehicle, such as the truck tractor in this case, is the operation of a much larger and more dangerous instrumentality than the usual private automobile. Not surprisingly, because commercial motor vehicles are much more complex and lethal than personal automobiles, the standard of care for operating a commercial motor vehicle is higher than the standard of care for operating a personal automobile. Thus, federal law makes the following requirement of the operator:

 

“Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.”

 

Negligence always turns on whether the applicable standard of care is breached in the context of the facts and circumstances of the particular case. Negligence is defined as the “[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm….” Black’s Law Dictionary 1061 (8th ed.2004). In the context of this case, achieving the purpose of the guest statute turns on whether Jenkins was operating the tractor negligently, which can be determined only if one knows the prescribed manner in which the tractor was to be operated. That is, I believe that the jury should have been permitted to assess Jenkins’s negligence under the guest statute in light of the standard the law imposed on Jenkins in operating the tractor at the time of the accident. Thus, I would hold that the trial court should have instructed the jury that Jenkins was required by federal law to be operating the tractor with extreme caution at the time of the accident. The trial court’s failure to inform the jury as to what the law required of Jenkins meant that the jury had no proper basis for its verdict, and therefore the judgment entered on that verdict should be reversed.

 

Two witnesses testified that the heavy rain had ended shortly before the accident, although Jenkins testified that it was still raining at the time of the accident.

 

Section 32-1-2, Ala.Code 1975, provides:

 

“The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”