Cases

Harco Nat’l Ins. Co. v. Knowles

Court of Appeals of Georgia.

HARCO NATIONAL INSURANCE COMPANY

ERIC KNOWLES, INC. et al. (two cases).

A23A1263, A23A1264

March 7, 2024

Review Denied March 26, 2024

Synopsis

Background: Insurer filed suit against insured, insured’s workers’ compensation carrier, insured’s employee and employee’s supervisor, seeking declaratory judgment that there was no coverage for employee’s injuries under automobile and commercial general liability (CGL) policies. In Case No. A23A1263, the Superior Court, Charlton County, Andrew C. Spivey, J., denied insurer’s motion for summary judgment on coverage issue, and in Case No. A23A1264, the Superior Court, Spivey, J., declined to enforce settlement agreement that employee’s injuries were compensable under Workers’ Compensation Act. Insurer’s applications for interlocutory appeal from both orders were granted.

Holdings: The Court of Appeals, Doyle, P.J., held that:

injuries sustained by employee arose out of employment, and thus were compensable under Workers’ Compensation Act, and

injuries fell within exclusions from coverage, under CGL and automobile policies, for bodily injury to employee of insured “arising out of and in course of employment” and for bodily injury compensable under workers’ compensation law.

Judgment in No. A23A1263 reversed; appeal from judgment No. A23A1264 dismissed as moot.

Attorneys and Law Firms

Kenan G. Loomis, Atlanta, for Appellant.

Hillary Ann Shawkat, for Appellee.

Opinion

Doyle, Presiding Judge.

*1 These related appeals arise out of a declaratory judgment action filed by Harco National Insurance Company against Eric Knowles, Inc. (“EKI”), Forestry Mutual Insurance Company (EKI’s workers’ compensation insurance carrier), Walter Knowles, and Robert Popwell. Harco brought the action seeking a judgment declaring that commercial general liability and auto insurance policies it issued to EKI did not cover liability for injuries suffered by Popwell at a job site while he was working for EKI in 2018. In Case No. A23A1263, Harco contends that the trial court erred by denying its motion for summary judgment (as amended) based on policy language excluding coverage for injuries to EKI employees “arising out of and in the course of [their] employment”with EKI. In Case No. A23A1264, Harco contends that the trial court erred by failing to enforce an alleged settlement agreement in which EKI, Forestry, and Popwell purportedly agreed that Popwell’s injuries arose out of and in the course of his employment with EKI. Because we conclude that the trial court erred by denying Harco’s summary judgment motion in Case No. A23A1263, we reverse the judgment in that case; Case No. A23A1264 is dismissed as moot.

Case No. A23A1263

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.¹

The undisputed record shows that in the spring of 2018, Popwell began working for EKI as a “cut down man” in a commercial logging operation. His job was to operate a machine called a feller buncher to cut trees in a controlled manner so that they could be loaded onto trucks. He reported to work when and where directed by EKI, and he was paid every week based on the weight of the wood he cut. Walter Knowles was Popwell’s supervisor.

With respect to the details of the accident, Popwell deposed that on May 3, 2018, he was working at a wooded job site along with Knowles and other personnel. Knowles determined the hours Popwell worked, which fluctuated depending on when they finished loading trailers with logs. According to Popwell’s deposition, around mid-day, he stopped work to eat lunch. He got in his personal vehicle to drive to a nearby store that sold fried chicken, and as he was leaving the logging area on a dirt road, he soon noticed that Knowles was operating a skidder and pushing a loaded truck that needed extra traction to navigate the unpaved road. Popwell put his vehicle in park (facing the skidder) to wait for the operation to finish; when Knowles got the loaded truck moving sufficiently, he turned the skidder around and headed in Popwell’s direction. As Popwell remained stationary in his vehicle, Knowles accidentally drove the skidder into and onto Popwell’s vehicle, causing multiple injuries to him.

*2 Popwell initially received workers’ compensation payments from Forestry (EKI’s carrier) for a few weeks, but thereafter, a dispute arose regarding workers’ compensation coverage, and Popwell sued EKI and Walter Knowles. To get clarity as to its coverage obligations, Harco filed the present action seeking: a declaration that Popwell was acting within the scope of his employment at the time he was injured, that his injuries are compensable under the Workers’ Compensation Act (“the WCA”),² and that Harco’s WCA exclusions in the policies issued to EKI preclude coverage.

During the pendency of Harco’s suit, EKI and Forestry initially agreed that Popwell’s injuries were compensable under the WCA and controlling precedent.³ Harco moved for summary judgment as to this question, and EKI and Forestry did not initially oppose it.⁴ But after an affidavit from Knowles emerged in related litigation, EKI and Forestry changed course and opposed Harco’s motion for summary judgment, relying on that affidavit. Knowles’s August 2020 affidavit averred as follows:

On May 8, 2018, I was employed as a crew leader by Eric Knowles, Inc. Robert Popwell was assigned to my crew and was under my supervision.

On May 8, 2018, around noon, Robert Popwell and I ate lunch together in a service truck as I drove around the property where we were clearing timber.

The drive lasted at least 15 minutes. During the drive, I instructed Robert Popwell on his assignment for the day. We looked at a GPS map together and discussed the location where he was to be working.

I drove to the location where Robert Popwell was to be working and showed him exactly where he was to be.

I then returned Robert Popwell to where his feller buncher was parked. He got out of my truck at that location. I instructed Robert Popwell to return to the area shown to him [and] to get that brow cut out because the other crew members would be completing their assigned tasks and would come to his area to gather the trees he was to cut.

I next saw Robert Popwell a few minutes later, after the skidder I was driving was in a collision with the vehicle he was driving.

Robert Popwell had abandoned his assigned task without my permission. Such an abandonment would normally result in termination of employment.

Following a hearing, the trial court denied Harco’s amended summary judgment motion and granted a certificate of immediate review. This Court then granted Harco’s application for interlocutory review.

1. Harco contends that the trial court should have granted its summary judgment motion because the record shows that Popwell’s injury arose out of and in the course of his employment with EKI, so any liability was precluded by policy language excluding coverage for workplace injuries. We agree.

Harco’s commercial general liability and automobile policies contain nearly identical language: “This insurance does not apply to: … ‘bodily injury’ to … [a]n ‘employee’ of the insured arising out of and in the course of … employment by the insured.”⁵ The policies further explicitly exclude coverage for any obligation under workers’ compensation law.

*3 In the workplace injury context, Georgia case law is clear that general liability insurance contracts may, as was done here, exclude coverage for injuries sustained on the job that are covered by the WCA.⁶ The question before us is whether there is a genuine issue of fact as to whether Popwell’s injury was such an injury.

The Supreme Court of Georgia has clarified that even though eating lunch is not the actual work an employee is hired to do, an ordinary mid-day lunch break on the employer’s premises is still considered to be “in the course of” employment for purposes of the WCA.⁷ This is because eating lunch at the workplace is an activity incidental to work and “reasonably necessary to sustain [an employee’s] comfort at work.”⁸

Furthermore, eating lunch during a break on the premises, or traversing to and from the work area for lunch, is considered to be “arising out of” employment when

the causative danger [is] incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service.⁹

Therefore, if an employee slips and falls on a wet surface, for example, when traversing into or out of an employee break room, “[i]t logically follows that her injury was causally connected to the conditions under which she worked, and her injury, therefore, ‘arose out of’ her employment.”¹⁰

Here, Popwell deposed that he was sitting in his vehicle in the process of leaving the job site to go to lunch when he was hit by the skidder driven by his supervisor during logging operations. Popwell had not yet left the logging area but was stopped and waiting for a stuck logging truck to be pushed along the roadway by the skidder. Thus, it is undisputed that Popwell’s injury was caused by heavy equipment returning from a task that was part of the timber harvest operation. Further, on the date of the accident, the officer at the scene noted that Knowles stated he was unsure why Popwell was driving his private vehicle at the time of the collision. Knowles’s subsequent affidavit does not dispute Popwell’s assertions that he was in his truck at the job site as part of his lunch break, regardless of whether he had eaten something with Knowles already. Therefore, Knowles’s assertion that Popwell had “abandoned” his assigned task at most shows that he did not immediately perform the task when assigned. It does not change Popwell’s legal status with respect to whether he had abandoned the course of his employment at the time of the accident.¹¹ He had not.¹²

*4 Based on this record, even considering Knowles’s affidavit, the undisputed evidence shows that at the time Knowles ran into Popwell’s vehicle, Popwell was still in the logging area on his lunch break and was not otherwise engaged in a personal activity outside the course of his employment. The collision with a logging skidder at that time and in that location was a risk “reasonably incident” to Popwell’s employment in the logging operation. Therefore, the injuries sustained by Popwell fell within the Harco policy exclusion for “ ‘bodily injury’ to … [a]n ‘employee’ of the insured arising out of and in the course of … employment by the insured,” and the trial court erred by denying Harco’s amended summary judgment motion.

2. Harco’s remaining enumeration — challenging whether the Knowles affidavit is properly considered — is moot.

Case No. A23A1264

3. Harco also challenges the trial court’s denial of its motion to enforce an alleged agreement that Popwell’s injury arose out of and in the course of his employment with EKI. In light of our holding in Case No. A23A1263, this case is dismissed as moot.

Judgment reversed in Case No. A23A1263; Case No. A23A1264 dismissed.

Gobeil, J., and Senior Judge C. Andrew Fuller concur.

All Citations

— S.E.2d —-, 2024 WL 979231

Footnotes

(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1), 486 S.E.2d 684 (1997).
OCGA § 34-9-1 et seq.
See generally Frett v. State Farm Employee Workers’ Compensation, 309 Ga. 44, 844 S.E.2d 749 (2020) (overruling Ocean Acc. & Guarantee Corp. v. Farr, 180 Ga. 266, 178 S.E. 728 (1935) and holding that an injury occurred “in the course of” and arose “out of” employment when an employee slipped and fell in the break room during her lunch break).
During this process, Harco amended its motion for summary judgment to remove any request for a declaration specifically ruling on Forestry’s coverage obligations to Popwell. It maintained its request for rulings declaring that the WCA was Popwell’s exclusive remedy, Harco had no duty to defend underlying claims brought by Popwell, and Harco’s WCA policy exclusions precluded coverage for Popwell’s claims against the insured.
On appeal, there is no genuine dispute that Popwell was an “employee” and that he suffered “bodily injury.”
See generally Saxon v. Starr Indem. & Liability Co., 339 Ga. App. 495, 498 (2), 793 S.E.2d 659 (2016).
See Frett, 309 Ga. at 48-49 (2) (a), 844 S.E.2d 749 (“When analyzing the ‘in the course of’ prerequisite, courts generally focus on the nature of the employee’s activity at the time of the injury, not whether she was paid for it or was free to do something else.”), disapproving of language in Ocean Accident & Guarantee Corp., 180 Ga. at 270-271, 178 S.E. 728, stating that an employee’s “preparation for lunch and his eating lunch was his individual affair. It was not a part of his employer’s work.”
Frett, 309 Ga. at 48 (2) (a), 844 S.E.2d 749.
(Punctuation omitted.) Frett, 309 Ga. at 50, 844 S.E.2d 749, quoting Thornton v. Hartford Acc. & Indem. Co., 198 Ga. 786, 792-793, 32 S.E.2d 816 (1945).
Frett, 309 Ga. at 50, 844 S.E.2d 749.
See Odom v. Franklin, 368 Ga. App. 246, 249, 889 S.E.2d 405 (2023) (holding that an employee was still in the course of his employment and not on a personal detour even though he was violating company policy by being late to work). See also Frett, 309 Ga. at 49 (2) (a), 844 S.E.2d 749 (deciding that an employee on her lunch break in the break room was “in the course of” her employment was “not … a close case”).
There is no evidence, for example, that Popwell had been terminated or that he had quit his job.

End of Document

Carter v. C&S Canopy, Inc.

Court of Appeals of Mississippi

March 5, 2024, Decided

NO. 2022-CA-00730-COA

Reporter

2024 Miss. App. LEXIS 95 *; 2024 WL 930787

JOSEPH CARTER, APPELLANT v. C&S CANOPY, INC. AND TY BALLEW, APPELLEES

Prior History: [*1] COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 06/23/2022. TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.

Disposition: AFFIRMED.

Counsel: FOR APPELLANT: ROGEN K. CHHABRA; JOHN D. GIDDENS.

FOR APPELLEES: L. CLARK HICKS JR.; R. LANE DOSSETT.

Judges: WILSON, P.J., FOR THE COURT. BEFORE WILSON, P.J., GREENLEE AND McCARTY, JJ. BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.

Opinion by: WILSON

Opinion

NATURE OF THE CASE: CIVIL – PERSONAL INJURY

WILSON, P.J., FOR THE COURT:

P1. Joseph Carter was injured when an eighteen-wheeler in which he was a passenger sideswiped a fixed-body truck that was parked on the shoulder alongside Interstate 10 and out of the lanes of travel. Carter sued the fixed-body truck’s driver, Ty Ballew, and Ballew’s employer, C&S Canopy Inc. (C&S), for negligence. Following discovery, the circuit court concluded there was no evidence that Ballew or C&S was negligent or that their alleged negligence caused the crash. Accordingly, the circuit court granted the defendants’ motion for summary judgment. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

P2. On January 2, 2017, Ty Ballew, an employee of C&S, was driving a commercial fixed-body [*2] truck on Interstate 10 in Mississippi. Around 3:30 p.m., the truck “started running sluggish and lost power,” and Ballew pulled off on the shoulder of the interstate. After talking to his supervisor, Heath Chambers, Ballew placed three warning triangles at intervals behind the truck. Ballew took a photograph of the truck with the warning devices and sent it to Chambers before going to a hotel.

P3. Around 1:30 a.m. on January 3, 2017, an eighteen-wheeler driven by Leslie Pecor approached Ballew’s truck. Carter was asleep in the sleeper berth of the eighteen-wheeler at the time. For unknown reasons, Pecor’s truck veered out of its lane and sideswiped Ballew’s truck. Carter was injured in the crash.

P4. Carter later asked Pecor “what happened,” but according to Carter, Pecor “didn’t really want to talk about it.” Pecor later died from an unrelated cause. Thus, a dash-camera video from Pecor’s truck is the only probative evidence regarding the cause of the crash.

P5. In December 2019, Carter sued Ballew and C&S. In October 2021, the defendants moved for summary judgment, arguing that Carter was unable to establish that either defendant breached a duty or that any alleged breach proximately [*3] caused the crash.

P6. In response, Carter submitted an affidavit from Adam Grill, a truck driving expert. Grill opined that Ballew “violated the Federal Motor Carrier Safety Regulations, state statute and industry standards when he parked and left unattended the truck on the paved portion of the highway.” Grill went on to say that Ballew “should have moved the truck to the nearest place where repairs [could] safely be effected” and that Ballew “incorrectly placed the warning devices[] behind the truck.” Grill stated that Ballew’s actions “caused a foreseeable danger to the motoring public and placed Mr. Carter in danger of harm.” Grill also opined that C&S violated state and federal law and industry standards by allowing “Ballew to park and leave unattended the truck on the paved portion of the highway” and that C&S failed to properly train or instruct Ballew regarding the placement of the reflective triangles. The defendants filed a motion to strike Grill’s affidavit, arguing that his opinions failed to satisfy the requirements of Mississippi Rule of Evidence 702.

P7. After a hearing, the circuit court granted the defendants’ motion for summary judgment, holding that there was no genuine issue of material fact, no [*4] evidence that the defendants breached any duty, and no evidence that any alleged breach proximately caused the crash. The circuit court reasoned,

[T]he video demonstrates [the warning] devices were in place at the time of the accident, and nothing in the record demonstrates how such devices did not comply with any requirements. Moreover, there is an analytical gap in the evidence demonstrating how a purported failure proximately contributed to the cause of the accident in this case.

P8. The circuit court also granted the defendants’ motion to strike Grill’s affidavit, finding that Grill did not address causation, his “opinions [were] not scientifically reliable,” and his opinions were not “helpful” to the extent he merely interpreted the video of the crash. The court also noted that it had reviewed all of Grill’s opinions and that even if his affidavit “was not stricken, his opinions . . . would not create a genuine issue of material fact that would preclude summary judgment.” Carter filed a notice of appeal.

ANALYSIS

P9. We review an order granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013). Summary judgment “shall” be granted “if [*5] 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.” M.R.C.P. 56(c). “When the plaintiff, as in this case, bears the burden of proof at trial, a defendant may elect to move for summary judgment by identifying deficiencies in the plaintiff’s evidence.” Maxwell v. Baptist Mem’l Hosp.-DeSoto Inc., 15 So. 3d 427, 433 (¶15) (Miss. Ct. App. 2008).

P10. In responding to a motion for summary judgment, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “[S]ummary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Buckel v. Chaney, 47 So. 3d 148, 153 (¶10) (Miss. 2010) (quotations marks omitted). To recover in a negligence action, the plaintiff must prove (a) a duty the defendant owed him, (b) a breach of that duty, [*6] (c) causation, and (d) damages. Double Quick Inc. v. Moore, 73 So. 3d 1162, 1166 (¶11) (Miss. 2011). Therefore, the plaintiff must respond to a motion for summary judgment “by producing supportive evidence of significant and probative value; this evidence must show that the defendant breached the established standard of care and that such breach was the proximate cause of her injury.” Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1355 (Miss. 1990). When the nonmoving party “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial and the moving party is entitled to judgment as a matter of law.” McClinton v. Delta Pride Catfish Inc., 792 So. 2d 968, 973 (¶9) (Miss. 2001) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss. 1996)).

P11. On appeal, Carter argues that Ballew negligently continued to drive a “sluggish” truck down the interstate rather than exiting; that C&S negligently failed to have the truck towed sooner; that Ballew violated Federal Motor Carrier Safety Regulations (FMCSRs) by placing emergency reflective triangles at incorrect distances behind his truck; that “Ballew broke the law” by parking the disabled truck on the shoulder of the interstate; that C&S lacked authority to operate as a “for-hire motor carrier”; that C&S failed to train Ballew; and that these various acts or omissions caused the subject crash. We address Carter’s various arguments [*7] in turn.

P12. Carter first argues that Ballew negligently continued to drive a “sluggish” truck down the interstate instead of exiting the interstate at the first sign of engine trouble. However, the only evidence Carter cites in support of this argument is the following testimony of Ballew’s supervisor, Chambers:

Q. What did [Ballew] tell you about what the truck was doing or how it had broken down? Did he describe that for you?

A. He had just told me that the truck had started running sluggish and lost power.

Carter produced no evidence that the truck ran “sluggish” for any period of time or that Ballew failed to take advantage of an earlier opportunity to exit the interstate. Accordingly, this argument is without merit.

P13. Next, Carter argues that the defendants negligently failed to get the truck towed sooner. However, Carter produced no evidence that the truck could have been towed sooner or that the defendants were in any way negligent in their efforts to get it towed. Because Carter failed to produce any evidence on this issue, the argument does not create any genuine issue of material fact.¹

P14. Next, Carter argues that Ballew violated the [*8] FMCSRs by improperly placing the warning triangles behind his truck. Specifically, Carter alleges that Ballew violated 49 C.F.R. § 392.22 “by placing the warning triangles with only 162.05 feet of warning to impact rather than 230 feet as required by these same regulations.” There are two difficulties with this argument. First, Carter’s claim that the first warning triangle was placed 162.05 feet from Ballew’s truck does not appear in the record. Rather, Carter’s appellate counsel calculated that figure based on his review of the crash video, which appears to show Pecor’s truck passing the first warning triangle about 1.75 seconds prior to impact while traveling at a speed of 63 miles per hour.²

P15. Second, the alleged 230-foot requirement is a misstatement of the cited federal rule, which provides in relevant part:

(b) Placement of warning devices—

(1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by § 393.95³ of this subchapter, in the following [*9] manner:

(i) One on the traffic side and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial vehicle in the direction of approaching traffic;

(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and

(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

(2) Special rules—

. . . .

(v) Divided or one-way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the warning devices required by paragraph (b)(1) of this section, one warning device at a distance of 200 feet and one warning device at a distance of 100 feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet [*10] of the rear of the commercial motor vehicle.

49 C.F.R. § 392.22(b). Interstate 10 is a divided highway. Therefore, under section 392.22(b)(2)(v), the three triangles should have been placed approximately 200 feet, 100 feet, and 10 feet behind Ballew’s truck in the direction of approaching traffic.

P16. Carter’s argument based on the federal rule fails to create any genuine issue of material fact. To begin with, a party opposing summary judgment should specifically identify the disputed material facts that preclude summary judgment. We do not expect circuit courts to “ferret[] through the record” for “unadvertised factual issues.” Est. of Jackson v. Miss. Life Ins., 755 So. 2d 15, 22 (¶28) (Miss. Ct. App. 1999). In this case, the defendants’ motion for summary judgment cited the relevant federal regulation and specifically argued that the video showed “that the warning triangles were appropriately spaced and clearly visible.” Indeed, the video clearly shows three emergency triangles placed at intervals behind Ballew’s truck. In response to the defendants’ motion, Carter simply asserted, without elaboration, that the triangles were “improperly” or “incorrectly” placed. We do not fault the circuit court for not attempting to calculate the distance between Ballew’s truck and the first triangle when Carter himself [*11] failed to make that calculation and failed to identify the distance as a disputed material fact. See id.

P17. But even if we were to assume that Ballew placed the first triangle 162.05 feet from the rear of his truck, that fact would not preclude summary judgment. In Sprayberry v. Blount, 336 So. 2d 1289 (Miss. 1976), a car crashed into the rear of a tractor-trailer rig that was slowly pulling onto the shoulder of a highway late at night due to engine trouble. Id. at 1291-92. The car’s driver was killed, and his wife was seriously injured. Id. at 1291. In the wife’s negligence action against the rig’s driver and owner, our Supreme Court held that the defendants were entitled to a directed verdict, reasoning:

[The car driver’s] negligence was the sole proximate cause of the injuries to his wife. . . . No one knows why [the car’s driver] failed to see the [rig] in front of him or failed to drive his vehicle into the other lane of traffic. It can only be concluded that he failed to keep a proper lookout and did not see what he should have seen or did not have has vehicle under such control so as to turn it left in time to avoid striking the tractor-trailer.

Id. at 1294.

P18. Likewise, “[n]o one knows why” Pecor allowed his truck to leave his lane of travel and crash [*12] into Ballew’s parked truck. Based on the limited record evidence, we can only conclude that Pecor fell asleep or failed to pay attention. But whatever the precise nature of Pecor’s negligence, there is no evidence that the specific placement of the first reflective triangle caused this crash. That is, there is no evidence that the crash would have somehow been avoided if Ballew had placed the triangle 38 feet from where he did. Given this lack of evidence, it is pure speculation to suggest that the crash would have been avoided if Ballew had placed the triangle 38 feet further up the road. “One can do no more than speculate about causation here, and speculation does not defeat summary judgment.” Joe McGee Constr. Co. v. Brown-Bowens, 368 So. 3d 1277, 1281 (¶10) (Miss. 2023).

P19. Carter also argues that “Ballew broke the law” by violating Mississippi Code Annotated section 63-3-903 (Rev. 2022), which provides in relevant part:

(1) No person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of any highway outside of a business or residence district when it is practical to stop, park, or so leave such vehicle off such part of said highway. In every event, however, a clear and unobstructed width of at least twenty (20) feet of such [*13] part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of two hundred (200) feet in each direction upon such highway.

(2) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.

Carter argues that Ballew violated subsection (1) because he left his truck parked on the “paved or improved” part of the highway, though off the “main traveled part” of it.

P20. In addressing this statute, our Supreme Court stated at the outset of its analysis that “[t]he central principle which runs through all the cases dealing with statutes regulatory of highway traffic is that such statutes must have a practical or workable interpretation, not an arbitrary or unreasonable construction, and never that which would require an impossibility[.]” Teche Lines Inc. v. Danforth, 195 Miss. 226, 249, 12 So. 2d 784, 786 (1943). Interpreting section 63-3-903, the Court held,

We know that on many of our highways one would be required to run his automobile mile upon mile before a place [*14] could be found where the machine could be entirely removed from the pavement. The statute must be given a reasonable and workable construction. If there is proper excuse or necessity for stopping the car, it will be sufficient, if a reasonable effort be made to get it entirely off the main traveled portion of the road, or as nearly so as the circumstances will permit.

Id. at 252, 12 So. 2d at 787 (emphasis added) (quoting Colvin v. Auto Interurban Co., 132 Wash. 591, 232 P. 365, 368 (Wash. 1925)).

P21. Consistent with the Supreme Court’s opinion in Teche Lines, Ballew moved his truck to the far edge of the shoulder and “entirely off the main traveled part of the road.” Id. The photograph that Ballew took of the disabled truck and warning devices shows that the road was visibly wet and that the dirt-and-grass area adjacent to the shoulder sloped downward. Carter produced no evidence that Ballew could have safely moved the disabled truck off the paved shoulder—or anywhere other than where he did.⁴

P22. In addition, subsection (2) of the statute expressly permits a driver to leave his vehicle on a paved shoulder if his vehicle becomes “disabled while on the . . . highway” and “it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.” Miss. Code Ann. § 63-3-903(2). Again, Carter produced no evidence that [*15] it was safe for Ballew to have parked the vehicle anywhere other than where he parked it.

P23. Next, Carter argues that “Ballew and C&S did not have authority to operate the commercial vehicle on the interstate” because C&S did not obtain “interstate-for-hire motor carrier operating authority” from the Federal Motor Carrier Safety Administration (FMCSA). However, C&S was registered with FMCSA as a private carrier, it had a valid United States Department of Transportation number, and Ballew was a licensed commercial driver. There is no evidence in the record that C&S should have been licensed as a for-hire motor carrier. Indeed, although Carter failed to produce any evidence in support of this contention, it appears that C&S is in the business of installing awnings, and when his truck broke down, Ballew was in the process of transporting C&S’s own tools and equipment from the company’s headquarters in Clanton, Alabama, to a job site in Louisiana. This sort of activity is not for-hire carriage.⁵ In any event, Carter simply failed to produce any evidence to show that C&S should have been registered as a for-hire carrier. In addition, Carter also failed to produce any evidence that C&S’s [*16] alleged failure to register as such in any way caused or contributed to the subject crash. Accordingly, this issue is without merit.

P24. Finally, Carter argues C&S negligently failed to train Ballew. Specifically, Carter argues that C&S failed to train Ballew (a) not to continue down the highway in a “sluggish” truck and (b) regarding the proper placement of emergency triangles. As explained above, there is no evidence that Ballew proceeded in a “sluggish” truck for any length of time, that he improperly placed the emergency triangles, or that his placement of the triangles caused the crash. Accordingly, this issue is also without merit.

CONCLUSION

P25. The circuit court properly granted summary judgment because there is no genuine issue of material fact, and the defendants are entitled to judgment as a matter of law.⁶

P26. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.

End of Document

¹In the defendants’ motion for summary judgment and during the hearing in the circuit court, defense counsel stated that Chambers had testified that he tried to get the truck towed that afternoon but was unable to schedule a tow until the next morning. In the circuit court, Carter did not dispute this description of Chambers’s testimony, but on appeal Carter notes that the defendants failed to attach the relevant pages of Chambers’s deposition to their motion for summary judgment. The absence of this evidence does not help Carter. To defeat a motion for summary judgment, “the plaintiff must . . . produc[e] supportive evidence of significant and probative value; this evidence must show that the defendant breached the established standard of care and that such breach was the proximate cause of her injury.” Palmer, 564 So. 2d at 1355 (first emphasis added). It was not the defendants’ burden to prove that they satisfied the standard of care; it was Carter’s burden to come forward with evidence of negligence.

²Carter’s appellate counsel calculates that 63 miles per hour equals 92.6 feet per second and that an object moving that speed would travel 162.05 feet in 1.75 seconds. We calculate that 63 miles per hour equals 92.4 feet per second and that an object moving at that speed would travel 161.7 feet in 1.75 seconds.

³The rule permits the use of emergency reflective triangles. 49 C.F.R. § 393.95(f)(1).

⁴Grill’s affidavit does not make any specific claim that Ballew could or should have driven the large truck off the paved shoulder and onto the sloping grass. Rather, he asserts that Ballew could have taken some prior action when his truck began running “sluggish.” As discussed above, there is no evidentiary basis for this assertion.

⁵“An authorized for-hire motor carrier transports passengers, regulated property or household goods owned by others for compensation.” FMCSA, What is the definition of an authorized for-hire carrier?, https://www.fmcsa.dot.gov/faq/what-definition-authorized-hire-carrier (updated May 26, 2023); see also, e.g., American Trucking Asso. v. Interstate Commerce Com., 672 F.2d 850, 851 (11th Cir. 1982) (“A private carrier does not engage in for-hire carriage; it is typically a firm that hauls its own wares in self-owned or leased trucking equipment.”).

⁶Carter also argues that the circuit court erred by striking Grill’s affidavit. Like the circuit court, we have considered Grill’s opinions and determined that even if Grill’s affidavit had not been stricken, it would not create a genuine issue of material fact that would preclude summary judgment. Accordingly, it is unnecessary to determine whether the circuit court erred by striking Grill’s affidavit under Mississippi Rule of Evidence 702.