Court of Appeal, Second District, Division 2, California.

Gustavo JUAREZ et al., Plaintiffs and Respondents,

v.

GODBEY-MONROE, INC., Defendant, Cross-defendant and Appellant;

Jose Luis Pena, Defendant, Cross-complainant and Respondent.

April 22, 2004.

NOTT, Acting P.J.

Godbey-Monroe, Inc. (Godbey), appeals from a judgment entered against it following a jury trial of the personal injury claims of respondents Gustavo Juarez, Rosa Juarez, Jose Luis Pena, Thomas Dailey, and Rosa Bravo. Respondents were injured in a freeway accident involving a truck driven by Pena and carrying trash from a work site controlled by Godbey. After application of settlement credits, Godbey was found liable to Gustavo Juarez in the amount of $4,147,850 plus prejudgment interest and costs; to Rosa Juarez in the amount of $625,000 plus prejudgment interest; to Dailey in the amount of $15,000; to Bravo in the amount of $15,000; and zero to Pena. Godbey contends the trial court erred in admitting insurance evidence to prove negligent hiring in violation of Evidence Code section 1155, in instructing the jury that it could consider evidence of insurance in determining whether Godbey was negligent, and in admitting evidence of insurance to prove agency.

PROCEDURAL AND FACTUAL BACKGROUND

In August 1998, Gustavo Juarez, Rosa Juarez, Dailey, and Bravo filed an action against Arrow Disposal Services, its owner and co-managers, and Pena (Arrow defendants); four companies involved in the manufacture, sale, and modification of the Arrow truck, its tires, and its “roll-off tilt frame” (White Motor Company, Williams Tires, Bandag, Inc., Bodyworks, Inc.); and Ford Motor Company, the manufacturer of the Juarez automobile. In September and November of 1998, respectively, respondents added Volvo Trucks North America, Inc. (Volvo), and Godbey as defendants.

Defendants filed cross-complaints for indemnity against each other. All but the Arrow defendants and Godbey entered into settlements with plaintiffs for a cumulative total of approximately $4,450,000 prior to trial.

The action proceeded against Godbey on three theories: negligent hiring of Arrow based in part upon Godbey’s failure to ask for proof that Arrow was insured; strict liability based upon agency; and negligent loading of the “high-boy” container with concrete. The trial court denied Godbey’s motion in limine to exclude evidence relating to Godbey’s insurance and Arrow’s lack of insurance.

The case was tried to a jury. Godbey does not contest the judgment on substantial evidence grounds. The evidence, viewed in the light most favorable to the judgment, tends to show the following. In November 1997, Pena was driving a truck carrying a loaded high-boy waste container eastbound on the 60 freeway when the truck suffered a blown retread tire. It careened out of control, hit the center divider, and dumped construction debris across the westbound lanes. Although the point was contested below, the evidence tends to show that the debris came from a Godbey construction site. Gustavo Juarez, traveling in the westbound lanes in a Mercury Sable, was severely injured when his automobile turned over after hitting a piece of concrete. He became a quadriplegic. Less severely injured were Dailey (a passenger in the Juarez car), Bravo (driving a vehicle in a westbound lane), and Pena. The truck driven by Pena was owned by Arrow Disposal Services (Arrow), Pena’s employer. Arrow also supplied the container.

The evidence tended to show that it is understood within the construction industry that concrete and similar debris should only be placed in a “low-boy” container, but that concrete and similar materials were improperly present in the high-boy container carried in the truck driven by Pena. Their presence contributed to Pena’s loss of control of the truck and caused the Juarez vehicle to overturn. The evidence that the debris was Godbey’s included an admission by Godbey’s owner that Godbey was the owner of the debris that spilled onto the freeway. [FN1]

FN1. In addition, the jury was expressly instructed that Godbey would not be liable if the debris was a cause of injury but did not come from a Godbey site. The jury nevertheless unanimously found Godbey negligent.

The trial court permitted evidence of insurance. Plaintiffs introduced evidence that it is the custom and practice for construction contractors to demand proof of valid permits and insurance prior to hiring a debris hauler, and that Godbey had failed to do so. The truck was not insured by Arrow. There was also evidence, apparently rejected by the jury, that Arrow was Godbey’s agent, and that they had an understanding that Godbey would insure the Arrow truck involved in the accident in return for a reduction in price. [FN2]

FN2. Evidence regarding Arrow’s insurance was conflicting. Godbey introduced evidence that Arrow had attempted to insure all its trucks and that after the accident it had tendered an insurance claim to its insurance broker, who had mistakenly failed to write a policy for the truck involved in the accident.

The jury instruction regarding insurance evidence permitted the jury to consider insurance evidence to determine whether an agency relationship existed between Godbey and Arrow and whether Godbey was negligent in hiring Arrow.

The jury returned a verdict in favor of plaintiffs and cross-complainant Pena. It found that Godbey and Arrow were negligent, that their negligence was a legal cause of plaintiffs’ injuries, and that Godbey’s negligence was a legal cause of Pena’s injuries. The jury found that Arrow was not an agent of Godbey. With respect to Gustavo Juarez and Rosa Juarez, the jury apportioned fault 50 percent to Arrow, 25 percent to Ford, and 25 percent to Godbey. With respect to the others, it apportioned fault 75 percent to Arrow and 25 percent to Godbey.

The trial court denied Godbey’s motions for new trial and for a judgment notwithstanding the verdict. This appeal followed.

DISCUSSION

I. Standard of review

Our review of statutory construction is de novo. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 544.) We review the trial court’s determinations regarding the relevance of insurance evidence (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900) and its weighing of the probative value against any prejudice pursuant to section 352 of the Evidence Code (Akers v. Miller (1998) 68 Cal.App.4th 1143, 1147) for abuse of discretion. This court considers instructions in light of the other instructions given and the entire record, and adopts a construction that will support the judgment if it is reasonably susceptible to such an interpretation. (Mullanix v. Basich (1945) 67 Cal.App.2d 675, 681.)

II. Allowance of insurance evidence

Godbey’s contention that the trial court erroneously admitted evidence of insurance to prove negligence in violation of section 1155 of the Evidence Code lacks merit. Evidence Code section 1155 states: “Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing.”

The statute, enacted in 1965, codified existing law and states the general rule against allowing the fact of insuring against an event to raise an inference of negligence. (Menefee v. Williams (1968) 259 Cal.App.2d 56, 61; Roche v. Llewellyn Iron Works Co. (1903) 140 Cal. 563, 575.) It is excluded because the “existence of liability insurance is generally irrelevant to the issue of a party’s liability or the extent of permissible recovery” and is inherently prejudicial. (See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2003)[¶] 8.2866, p. 8E-194.) Wigmore explains that while “the fact of insurance covering liability might tend to make the insured less careful,” “the inference is too elusive to be serviceable as evidence, depending as it does on a peculiar temperament which is by no means general.” (2 Wigmore on Evidence (Chadbourn rev.1979) § 282a, p. 174.)

The principle is subject to the exception that insurance evidence may properly be allowed where the evidence is introduced for other purposes. (See Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1410-1411.) “The fact of insurance … may be relevant on an issue other than the quality of the insured’s conduct, and therefore may be introduced under the doctrine of limited admissibility, with a limiting instruction, where its probative value outweighs the possible prejudice from its admission.” (1 Witkin, Cal. Evidence (4th ed.2000) § 134, p. 484.) For example, the fact of insurance may be admissible as tending to prove ownership of a vehicle or employment of a person covered by the policy. (See Perry v. Paladini, Inc. (1928) 89 Cal.App. 275, 285 [ownership]; Mullanix v. Basich, supra, 67 Cal.App.2d at p. 682 [employment].)

In the present case, insurance evidence was admissible both to show negligent hiring and agency. Neither of these involve the type of inference of wrongdoing section 1155 of the Evidence Code was meant to preclude. As to negligent hiring, plaintiffs submitted expert testimony that it is the custom, practice, and standard of care in the construction industry to require a valid permit and certificate of insurance from anyone who comes onto the jobsite to perform services, including persons hauling debris. [FN3] Evidence of Arrow’s lack of insurance for the truck tended to prove that Arrow did not have a valid permit to operate the truck. [FN4] Failure to enquire whether a trucker is licensed is relevant to the issue of negligent hiring. (See L.B. Foster Co. v. Hurnblad (9th Cir.1969) 418 F.2d 727, 731 [applying Washington law]; Shifflette v. Walkup Drayage etc. Co. (1946) 74 Cal.App.2d 903, 909 [knowledge that driver lacks operator’s license is sufficient to put company on inquiry as to his competency].)

FN3. Vehicle Code section 34620, subdivision (b), as amended in 1997, imposes a similar duty on commercial entities which hire motor carriers of property.

FN4. Vehicle Code section 34630, subdivision (a) provides that no motor carrier permit shall be issued until proof of insurance is filed with the state; subdivision (c) of section 34630 provides that the permit shall be suspended if the insurance is terminated or lapses.

As to agency, Arrow’s lack of insurance and Godbey’s coverage tend to support the position that Arrow was Godbey’s agent, and therefore not required to provide insurance for the vehicle. (See Phillips Cooperative Gin Co. v. Toll (Ark.1960) 335 S.W.2d 303, 305 [evidence probative based upon the presumption that the contracting parties intended to act lawfully]; Curcic v. Nelson Display Co. (1937) 19 Cal.App.2d 46, 57 [insurance evidence relevant to the issue of respondeat superior].) Arrow put on evidence that it had an agreement with Godbey that Godbey would provide insurance coverage and permits for the truck in exchange for a reduction in price.

Godbey urges that insurance evidence was not probative because the jury instruction concerning agency did not expressly list insurance as a factor. Among the factors listed were: who supplies the instrumentalities for the person doing the work; the method of payment; whether the work is part of the regular business of the principal; and whether the parties believe they are creating an agency relationship. The insurance evidence was a consideration in all of those factors, and was relevant to the jury’s determination of whether an agency relationship existed.

Even where not barred by section 1155 of the Evidence Code, however, insurance evidence may be excluded under section 352 of the Evidence Code where its probative value is outweighed by the risk of prejudice from disclosure. (See Blake v. E. Thompson Petroleum Repair Co. (1985) 170 Cal.App.3d 823, 831.) The insurance evidence should be of substantial probative value to the case. (See Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 733 [stated in context of the collateral source rule].)

While the issue is close, we conclude that the trial court acted within its discretion in determining that the insurance evidence was admissible. The trial court acknowledged that insurance evidence may have a prejudicial effect on the jury. It also stated that the insurance evidence was relevant to the jury’s determination of whether Godbey was negligent in hiring Arrow and that absence of the evidence would severely hamper Arrow’s ability to prove that it was acting as Godbey’s agent. The trial court minimized the evidence’s prejudicial effect by fashioning a limiting instruction, which is discussed below. It did not abuse its discretion in admitting the evidence. [FN5]

FN5. The trial court also addressed these issues in ruling on Godbey’s motion for new trial. (See Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751 [new trial motion allows the trial court to reweigh the evidence and draw inferences contrary to that of the jury].) It concluded that the evidence supported the verdicts and that it had properly allowed insurance evidence.

III. Instructional error

Godbey contends the trial court committed prejudicial error in instructing the jury according to the following limiting instruction: “Generally in litigation of the sort involved here, the existence of insurance coverage by any party is inadmissible. The reasoning for such a rule is that the exist[e]nce of insurance has no bearing on issues involving the negligence of a party, causation or the nature and extent of damage or harm caused by such negligence. [¶] In this case the court has allowed evidence of the existence and/or nonexistence of insurance as it relates to defendants Godbey-Monroe and Arrow Disposal. Such evidence has been received for the limited purpose of determining (1) the factual and legal relationship that existed between defendants Godbey-Monroe and Arrow Disposal at the time of the involved traffic collision and (2) whether defendant Godbey-Monroe was negligent in hiring or retaining the services of Arrow Disposal. [¶] You may not consider this evidence for any other purpose such as assigning negligence to a defendant solely because it had or did not have insurance. Nor may you consider the existence of insurance to ensure that a plaintiff will be fully compensated for his or her injury or harm. To do so could unjustly penalize a defendant for undertaking the responsibility and the financial burden of insuring himself and could unjustly reward a defendant who is uninsured. It is the task of the jury to determine who is legally responsible for any resulting damage according to the facts and the jury instructions given by the court. It is not within the province of the jury to attempt to guarantee any plaintiff that sufficient resources will exist to compensate a party for his or her injury. The mere existence of insurance does not necessarily mean that the insurance coverage will fully compensate all of the damages you may find that defendant to have legally caused and by the same token, the lack of insurance does not necessarily mean that a defendant without insurance is without the resources or financial means to compensate any party injured by its own negligence. [¶] You shall therefore consider the evidence received for the limited purpose for which it was received and for no other purpose.”

We find no error. As discussed above, the insurance evidence was relevant to issues of negligent hiring and agency. The probative value of the evidence outweighed the risk of prejudice from disclosure. The instruction properly limits the jury’s use of the evidence and does not violate Evidence Code section 1155.

IV. Prejudice

Having concluded that the trial court acted within its discretion in allowing the insurance evidence, we need not reach the issue of prejudice. We note, however, that the special verdicts do not appear to be products of passion or prejudice. Despite hearing evidence that Godbey was insured and that Arrow was not, the jury rejected an agency theory that would have resulted in Godbey’s liability for Arrow’s actions. While the jury voted 12 to 0 that Godbey was negligent, apparently based upon the presence of concrete debris in the high- boy container, it allocated only 25 percent fault to Godbey. (The jury voted 10 to 2 in favor of causation of Pena’s injury, and 9 to 3 in favor of causation of the Juarezes’ injuries.) It does not appear that the jury was swayed by prejudice.

DISPOSITION

The judgment appealed from is affirmed. Respondents shall recover their costs of appeal from appellant.

We concur: DOI TODD and ASHMANN-GERST, JJ.

United States District Court,

E.D. Wisconsin.

Patrick CLEARY, Plaintiff,

v.

FEDERAL EXPRESS CORPORATION, Defendant.

April 14, 2004.

ADELMAN, District J.

Plaintiff Patrick Cleary, an employee of defendant, Federal Express Corporation, brings this action alleging that defendant violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., by failing to reasonably accommodate his disability, epilepsy. Before me now is defendant’s motion for summary judgment.

I. FACTUAL BACKGROUND

In 1990, plaintiff began working for defendant as a mechanic at the Milwaukee station (“station”), one of defendant’s package handling facilities. Plaintiff was, in defendant’s terminology, a non-DOT mechanic, i.e., one who did not need federal Department of Transportation (“DOT”) certification. However, he subsequently obtained such certification and became, again in defendant’s terminology, a DOT mechanic. Plaintiff worked second shift, and his job was to repair and maintain defendant’s delivery trucks. As a mechanic, plaintiff was required to do some road testing of the vehicles that he worked on.

In November 1993, plaintiff was diagnosed with a brain tumor, underwent surgery and radiation therapy, and took a ninety-day disability leave, returning to work in February 1994. On September 13, 1994, defendant changed plaintiff’s job designation from DOT mechanic to non-DOT mechanic because plaintiff was taking anti-seizure medication and could not pass the physical required for DOT certification. On September 22, plaintiff suffered a grand mal seizure. In October 1994, he was diagnosed with epilepsy and began receiving treatment for it. As part of his treatment, plaintiff was required to take anti-seizure medications three times a day. The side effects of the medication interfered with his sleep. Sleep deprivation is a factor that can lead to seizures.

While working second shift, plaintiff found it difficult to get adequate, uninterrupted sleep and, in the months after the grand mal seizure, experienced a number of auras or partial seizures. In April 1995, he asked defendant to transfer him to first shift and supported his request with a letter from his doctor stating that the transfer was medically advisable. Defendant’s medical review office denied the request, stating that there was no “pressing medical reason” to accommodate plaintiff’s “preference” for working first shift. (Kennelly Aff. Ex. F.)

However, in May or June 1995, a first shift mechanic’s position opened and plaintiff applied for and received the position. While working first shift, he was able to maintain a consistent sleep schedule and get adequate amounts of uninterrupted sleep, and he did not experience auras.

After suffering the grand mal seizure, plaintiff relinquished his Wisconsin commercial driver’s license (“CDL”), but in June 1998, at the request of his supervisor Frank Zimmerman, he re-applied for the CDL and his license was reinstated with some restrictions.

In September 1998, Zimmerman changed the designation of plaintiff’s position from non-DOT mechanic to DOT/CDL mechanic. Defendant states that it was obliged to make this change by the Federal Motor Carrier Safety Regulations (“FMCSRs”). In defendant’s view, the FMCSRs required plaintiff to obtain DOT certification because he road tested commercial vehicles and an increasing percentage of the vehicles in its fleet fell into this category. Because of his epilepsy, plaintiff could not obtain DOT certification.

In April 1999, plaintiff’s supervisors formulated an accommodation request on his behalf. Defendant’s divisional human capital management committee recommended that plaintiff be allowed to continue working at the station and proposed that he use his CDL to road test vehicles on adjacent city streets within a five mile radius of the station. The committee understood that plaintiff wanted to continue to work first shift at the station for medical reasons related to his seizure disorder. However, defendant’s corporate human capital management committee refused the accommodation request. Defendant did not communicate its refusal to plaintiff.

In July 1999, defendant advised plaintiff that he would have to obtain DOT certification in order to keep his position at the station. As stated, plaintiff could not obtain such certification.

On August 20, 1999, Zimmerman advised plaintiff that his ineligibility for DOT certification made it impossible for him to continue in his mechanic position at the station. He gave plaintiff the option of accepting a position as a third shift mechanic at the ramp, another of defendant’s Milwaukee facilities, or taking a leave of absence and finding another position with the company within ninety days or be terminated. Plaintiff asked Zimmerman why he could not continue to work at the station, and Zimmerman responded that plaintiff could not do so because he was not DOT certified and had to road test vehicles. Plaintiff accepted the third shift position at the ramp because he did not want to be out of a job and believed that he had no alternative.

At the ramp, plaintiff worked from midnight until 8:30 a.m. While working such hours, he tried to get enough uninterrupted sleep during the day but was unable to do so. He states that he woke up too soon, and, because of his anxiety about not being able to sleep and being vulnerable to seizures, could not go back to sleep, and, as a result, became progressively more exhausted during the work week. He also states that while working third shift he began to have auras, which further increased his anxiety.

In March 2000, defendant offered plaintiff a first shift non-DOT mechanic position at one of its Chicago facilities. Plaintiff states that he declined the offer because he did not want to move away from his doctors and because he believed that commuting from his home in Waukesha to Chicago would prevent him from getting enough sleep.

Plaintiff continued to work third shift at the ramp, but on December 30, 2000, experienced another grand mal seizure, and in January 2001, was diagnosed with a recurrent brain tumor. On January 18, 2001, plaintiff underwent brain surgery and has been unable to work since then. He is presently on a long-term disability leave of absence.

Additional facts will be stated in the course of the decision.

II. APPLICABLE LAW

A. Summary Judgment Standard

Summary judgment is required “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be genuine, the evidence must be such that a “reasonable jury could return a verdict for the nonmoving party.” Id. For the fact to be material, it must relate to a disputed matter that “might affect the outcome of the suit.” Id.

Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323- 24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248.

The moving party bears the initial burden of demonstrating that it is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323. The moving party may satisfy its initial burden simply by pointing out that there is an absence of evidence supporting the non-moving party’s case. Id. at 325. Once the moving party’s initial burden is met, the nonmoving party must “go beyond the pleadings” and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989).

In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is “not required to draw every conceivable inference from the record–only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

B. Relevant ADA Provisions

The ADA prohibits an employer from discriminating against “a qualified individual with a disability” in connection with employment. 42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A). The duty to reasonably accommodate a disability requires an employer to “be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work.” Vande Zande v. Wis. Dept. of Admin., 44 F.3d 538, 542 (7th Cir.1995).

Under the ADA, a “qualified individual with a disability” is defined, in relevant part, as: “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Whether a plaintiff is a “qualified individual with a disability” involves a two-step determination. 29 C.F.R. § 1630.2(m); see also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996). First, the plaintiff must show that he “satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.” Id. If the plaintiff makes this showing, he must then establish that he “can perform the essential functions of the position held or desired, with or without reasonable accommodation.” Id. Whether an individual is a “qualified individual with a disability” is determined as of the time of the employment decision. Id.

However, under the ADA, employers may only use “qualification standards … that screen out or tend to screen out or otherwise deny a job benefit to an individual with a disability” if such standards are “job-related and consistent with business necessity, and … performance cannot be accomplished by reasonable accommodation.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 568, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999) (quoting § 12113(a)). Further, § 12112(b)(6) defines discrimination to include “using qualification standards … that screen out or tend to screen out an individual with a disability … unless the standard … is shown to be job-related for the position in question and is consistent with business necessity.” Finally, an employer has a defense to a charge of disability discrimination if it can show that the action challenged was “required or necessitated by another Federal law or regulation.” 29 C.F.R. 1630.15(e).

III. DISCUSSION

Plaintiff argues that defendant’s refusal to permit him to continue to work as a first-shift mechanic at the station constituted a failure to reasonably accommodate his disability. [FN1] In order to survive defendant’s summary judgment motion, plaintiff must demonstrate that a reasonable jury could find that he was disabled, that he was a qualified individual, and that by refusing to allow him to remain in his position, defendant failed to reasonably accommodate him. See Baert, 149 F.3d at 629. Defendant does not dispute that plaintiff was disabled.

The dispute between the parties centers on whether plaintiff was a qualified individual. [FN2] Defendant argues that plaintiff was not qualified to hold the position of DOT mechanic because he could not obtain DOT certification. Defendant further asserts that it has a defense to plaintiff’s discrimination charge because it was obliged by the FMCSRs to require DOT certification as a prerequisite to holding the position of mechanic at the station. See 29 C.F.R. 1630.15(c). This is so, according to defendant, because (1) it was an essential function of the position to road test commercial vehicles; (2) such road testing constituted driving in interstate commerce; and (3) the FMCSRs require that persons who drive in interstate commerce obtain DOT certification. In response, plaintiff argues that when he road tested vehicles at the station, he was not driving in interstate commerce and, therefore, defendant’s prerequisite that he obtain DOT certification was neither required by the FMCSRs or job-related or consistent with business necessity. Therefore, plaintiff contends, he was a qualified individual.

I need only address whether the prerequisite of DOT certification was required by the FMCSRs, not whether it was job-related or consistent with business necessity. This is so because defendant justifies the prerequisite solely on the ground that the FMCSRs required it. According to defendant, it did not insist on DOT certification “merely of its own devising,” Albertson’s, Inc., 527 U.S. at 570, but because it was obliged to do so. Thus, I turn to the applicable FMCSRs and ask whether they required that plaintiff obtain DOT certification.

The FMCSRs apply to “employees” who “transport property or passengers in interstate commerce.” 49 C.F.R. § 390.3. Thus, the FMCSRs apply only to employees who drive in interstate commerce. Therefore, the question of whether the FMCSRs required defendant to require plaintiff to obtain DOT certification depends on whether the road testing associated with plaintiff’s position constituted driving in interstate commerce.

The FMCSRs define interstate and intrastate commerce as follows:

Interstate commerce means trade, traffic, or transportation in the United States–

(1) Between a place in a State and a place outside of such State (including a place outside of the United States);

(2) Between two places in a State through another State or a place outside of the United States; or

(3) Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States.

Intrastate commerce means any trade, traffic, or transportation in any State which is not described in the term “interstate commerce.”

49 C.F.R. § 390.5. The parties disagree as to what test I should apply to determine whether plaintiff was driving in interstate commerce. Defendant argues that I should look solely at the nature of its business. It further argues that because the essential nature of its enterprise was to transport cargo in interstate commerce, by the very fact of driving its vehicles, plaintiff should be regarded as having driven in interstate commerce. In contrast, plaintiff argues that to determine whether he, as an employee, drove in interstate commerce, I should focus on the particular kind of driving that he engaged in.

I agree with plaintiff and conclude that the question of whether the driving duties associated with his position involved driving in interstate commerce depends on the nature of the driving he was required to perform. Seventh Circuit case law supports this conclusion. In Goldberg v. Faber Indus., Inc., 291 F.2d 232, 234-35 (7th Cir.1961), the Seventh Circuit stated that to decide whether a driver is “engaged in transporting property in interstate commerce” for the purposes of the Motor Carrier Act, a court must analyze the individual employee’s activity not that of his employer. The court further stated that an employee driver operates in interstate commerce if his or her job involves or is likely to involve actually driving across state lines or driving intrastate routes that are part of “a through movement” of property that originated or was destined to move across state lines. Id. at 234. The court determined that the jobs of the drivers in question did not involve either duty, that the employees drove only routes that were genuinely intrastate and that there was no likelihood that they would ever be assigned to an interstate route, even temporarily. Thus, the employees did not drive in interstate commerce. See also Chao v. First Class Coach Co., 214 F.Supp.2d 1263, 1271-76 (M.D.Fla.2001) (stating that notwithstanding employer’s status, court must look at activities of individual driver); Garcia v. Pace Suburban Bus Serv., 955 F.Supp. 75, 76-77 (N.D.III.1996) (same); Dole v. Circle “A” Constr., Inc., 738 F.Supp. 1313, 1317-19, 1321-22 (D.Idaho 1990) (stating that fact that some of employer’s drivers were subject to the FMCSRs did not mean that all were).

Defendant argues that Goldberg is inapplicable because it arose in a context different from that of the present case, i.e., that of the Fair Labor Standards Act. However, I see no principled basis for distinguishing the question before the Goldberg court from that raised in the present case. Moreover, courts have reached conclusions similar to mine in cases raising the question presented here, namely, under what circumstances the FMCSRs apply to employee-drivers. See, e.g., Tinjum v. Atl. Richfield Co., 109 Wash.App. 203, 205, 34 P.3d 855 (Ct.App.2001) (stating that if driver’s job involved transporting petroleum in solely intrastate commerce, employer would not have defense to handicap discrimination claim based on compliance with FMCSRs); see also Frito-Lay, Inc. v. Wis. Labor & Indus. Review Comm’n, 95 Wis.2d 395, 406-07, 290 N.W.2d 551 (Ct.App.1980) (rejecting defendant’s contention that all of its drivers had to comply with DOT physical qualifications because defendant had interstate truck runs, the court noting that defendant also had some purely intrastate truck runs).

Additionally, my conclusion finds support in the DOT’s Notice of Interpretation regarding its jurisdiction to regulate the qualifications and hours of commercial motor vehicle drivers under the Motor Carrier Act, 46 Fed.Reg. 37902 (July 23, 1981) (“Interpretation”). There, the DOT stated that its jurisdiction depended on “the activities or likely activities of the individual driver,” id. (emphasis added), and that it had jurisdiction if “in the regular course of employment a driver is, or could be, called upon to transport a shipment in interstate commerce,” id. Thus, pursuant to the Interpretation, an employee is subject to DOT regulation if he or she has actually been assigned to drive interstate routes (routes either crossing state lines or within a state but part of through shipments of property across state lines) or if he or she “could reasonably have been expected to make one of the carrier’s interstate runs.” Id. However, DOT jurisdiction does not attach “if there is no possibility of the individual driver doing interstate driving or if the possibility of interstate driving is remote.” Id.

The Interpretation is relevant to whether plaintiff’s road-testing constitutes driving in interstate commerce because the 1997 Guidance, issued by the Federal Highway Administration (“FHWA”), an agency within the DOT, regarding the applicability of the FMCSRs expressly refers to it. In addressing the scope of the FHWA’s jurisdiction to regulate the qualifications and hours of drivers who operate “only occasionally” in interstate commerce, the Guidance adopted the Interpretation’s “reasonable expectation” standard, i.e., whether a driver could reasonably be expected to drive “interstate”. See 62 Fed.Reg. 16370, 16406, § 390.3, question 24 (April 4, 1997) (stating, in part, that “[i]f jurisdiction is claimed over a driver who has not driven in interstate commerce, evidence must be presented that the carrier has operated in interstate commerce and that the driver could reasonably be expected to make one of the carrier’s interstate runs”).

In arguing that the nature of its business is the sole determinant of whether plaintiff was subject to the FMCSRs, defendant relies heavily on two cases, both of which are distinguishable from the present case. The first is one of my decisions, Thoms v. ABF Freight Sys.,Inc., 31 F.Supp.2d 1119, 1122 (E.D.Wis.1998). In Thoms, I determined that notwithstanding that the plaintiff drove intrastate routes, a substantial amount of the cargo on board his vehicle originated outside the state and moved in interstate commerce. Contrary to defendant’s argument Thoms did not turn on the nature of the employer’s business but on the fact that the plaintiff’s driving was part of a through movement of cargo across state lines. The present case differs from Thoms in that there is no indication that plaintiff ever transported cargo. Defendant also relies on Murphy v. United Parcel Serv., Inc., 946 F.Supp. 872 (D.Kan.1996), aff’d, 141 F.3d 1185 (10th Cir.1998), aff’d, 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999). However, Murphy is uninstructive because it does not address the question presented here, namely, under what circumstances an employee can be said to drive in interstate commerce.

Defendant argues that it is illogical and inconsistent with the intent of the FMCSRs for a commercial vehicle to be subject to federal regulations in some circumstances but not others. Again, I disagree. The question presented is not whether, on some occasions, a particular vehicle or vehicles were driven in interstate commerce, but whether the road testing associated with the position of mechanic constituted driving in interstate commerce.

Defendant also relies on the following language in the 1997 Guidance:

Question 5: Are personnel involved in road testing CMVs across a State line subject to the FMCSRs?

Guidance: Yes, any driver (including mechanics, technicians, driver trainees and other personnel) operating a CMV in interstate commerce must be in compliance with the FMCSRs.

Question 6: How does one distinguish between intra- and interstate commerce for the purposes of applicability of the FMCSRs?

Guidance: Interstate commerce is determined by the essential character of the movement, manifested by the shipper’s fixed and persistent intent at the time of shipment, and is ascertained from all of the facts and circumstances surrounding the transportation. When the intent of the transportation being performed is interstate in nature, even when the route is within the boundaries of a single State, the driver and CMV are subject to the FMCSRs.

62 Fed.Reg. at 16404.

However, defendant’s reliance is misplaced. The above language does not suggest that the nature of an enterprise is the sole determinant of whether an individual employee drives in interstate commerce. The answer to question 5 could reasonably be read to mean that employees who road test vehicles without crossing state lines are not subject to the FMCSRs, and the answer to question 6 indicates that whether an employee drives in interstate commerce depends on a variety of factors.

The question of whether the FMCSRs applied to the position of mechanic at the station is a question of law to be decided by the court. [FN3] However, the answer depends on whether the road testing associated with the position constituted driving in interstate commerce which, as discussed, depends on the facts and circumstances surrounding the driving. The only evidence in the record concerning this issue is fleet manager Michael Laurain’s testimony that, to the best of his knowledge, plaintiff never drove across state lines and never drove a vehicle that carried cargo. Thus, on the present record, a reasonable factfinder could not conclude that plaintiff drove in interstate commerce.

If plaintiff’s duties did not include driving in interstate commerce, the FMCSRs did not require defendant to make DOT certification a prerequisite of his position. If defendant was not required to make such certification a prerequisite of his position, a reasonable jury could conclude that by refusing to permit him to continue in such position, defendant failed to reasonably accommodate his disability.

Therefore,

IT IS ORDERED that defendant’s motion for summary judgment is DENIED.

IT IS FURTHER ORDERED that a telephone conference will be held on April 20, 2004 at 10:30 a.m. The court will initiate the call.

FN1. Initially, plaintiff also asserted a claim under the Rehabilitation Act of 1973 and a disparate treatment claim but has since abandoned such claims. Both parties treat plaintiff’s claim as one of failure to reasonably accommodate under the ADA, which is how it is best understood. See Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 628 n. 3 (7th Cir.1998).

FN2. Defendant also argues that summary judgment should be granted because plaintiff did not challenge DOT’s decision not to certify him and, therefore, failed to exhaust administrative remedies. However, this argument is misplaced because plaintiff does not dispute that he was ineligible for DOT certification.

FN3. The Wisconsin Equal Rights Division mistakenly treated the issue as one of fact.