Cases

Tischauser v. Donnelly Transp., Inc.

United States District Court for the Eastern District of Wisconsin

December 4, 2023, Decided; December 5, 2023, Filed

Case Nos. 20-C-1291; 20-C-1917; 21-C-220; 21-C-965; 23-C-538; 23-C-539; 23-C-556

Reporter

2023 U.S. Dist. LEXIS 215815 *; 2023 WL 8436321

MITCHELL TISCHAUSER, DELOS W. LUEDTKE, PADEN ROTHENBERGER, DUSTIN J. DEMITRIOU, and RONDA DEMITRIOU, Plaintiffs, v. DONNELLY TRANSPORTATION, INC., JOSUE R. HIDALGO-CLARKE, FIREBIRD TRUCKING, INC., MODE TRANSPORTATION, LLC, SYSCO CORPORATION, ACE PROPERTY & CASUALTY INSURANCE COMPANY, and STATE NATIONAL INSURANCE CO., Defendants.

Prior History: Tischauser v. Donnelly Transp. Inc., 2022 U.S. Dist. LEXIS 37366, 2022 WL 623994 (E.D. Wis., Mar. 3, 2022)

Counsel: [*1] For Delos W Luedtke, Plaintiff (1:20-cv-01917-WCG): Jennifer Marie Rice, Timothy M Whiting, LEAD ATTORNEYS, Allison L Hostetler, Whiting Law Group Ltd, Chicago, IL; Steven L Toney, Toney Law Offices SC, Madison, WI.

For Firebird Trucking Inc, Defendant (1:20-cv-01917-WCG): Edward P Gibbons, LEAD ATTORNEY, Kyle T Geiger, Walker Wilcox Matousek LLP, Chicago, IL; Maria DelPizzo Sanders, LEAD ATTORNEY, von Briesen & Roper SC, Milwaukee, WI.

For Donnelly Transportation Inc, Defendant (1:20-cv-01917-WCG): Vincent M Casieri, Schueler Dallavo & Casieri, Chicago, IL.

For Josue Rene Hidalgo Clarke, Defendant (1:20-cv-01917-WCG): Edward P Gibbons, LEAD ATTORNEY, Kyle T Geiger, Walker Wilcox Matousek LLP, Chicago, IL; Maria DelPizzo Sanders, LEAD ATTORNEY, von Briesen & Roper SC, Milwaukee, WI; Vincent M Casieri, Schueler Dallavo & Casieri, Chicago, IL.

For Paden Rothenberger, Plaintiff (1:21-cv-00220-WCG): David J Bischmann, LEAD ATTORNEY, Miles G Lindner, Laura A Lindner, Lindner Law LLC, Milwaukee, WI.

For Donnelly Transportation Inc, Ace Property & Casualty Insurance Company, Defendants (1:21-cv-00220-WCG): Vincent M Casieri, Schueler Dallavo & Casieri, Chicago, IL.

For Josue R Hidalgo-Clarke, Defendant [*2] (1:21-cv-00220-WCG): Maria DelPizzo Sanders, von Briesen & Roper SC, Milwaukee, WI; Vincent M Casieri, Schueler Dallavo & Casieri, Chicago, IL.

For Firebird Trucking Inc, State National Insurance Co Inc, Defendants (1:21-cv-00220-WCG): Maria DelPizzo Sanders, von Briesen & Roper SC, Milwaukee, WI.

For Dustin J Demitriou, Ronda Demitriou, Plaintiffs (1:21-cv-00965-WCG): Thomas A Perlberg, Hupy and Abraham SC, Milwaukee, WI.

For Donnelly Transportation Inc, ACE Property and Casualty Insurance Company, Defendants (1:21-cv-00965-WCG): Vincent M Casieri, Schueler Dallavo & Casieri, Chicago, IL.

For Josue R Hidalgo-Clarke, Defendant (1:21-cv-00965-WCG): Clayton L Riddle, LEAD ATTORNEY, Maria DelPizzo Sanders, von Briesen & Roper SC, Milwaukee, WI; Kyle T Geiger, LEAD ATTORNEY, Walker Wilcox Matousek LLP, Chicago, IL; Vincent M Casieri, Schueler Dallavo & Casieri, Chicago, IL.

For Firebird Trucking Inc, State National Insurance Company, Defendants (1:21-cv-00965-WCG): Clayton L Riddle, LEAD ATTORNEY, Maria DelPizzo Sanders, von Briesen & Roper SC, Milwaukee, WI; Kyle T Geiger, LEAD ATTORNEY, Walker Wilcox Matousek LLP, Chicago, IL.

For Paden Rothenberger, Plaintiff (1:23cv538): David J Bischmann, [*3] Laura A Lindner, Miles G Lindner, LEAD ATTORNEYS, Lindner Law LLC, Milwaukee, WI USA.

For Sysco Corporation, Defendant (1:23cv538): James J Temple, Mulherin Rehfeldt & Varchetto PC, Wheaton, IL USA.

For Mode Transportation Inc, Defendant (1:23cv538): Sara M Butler, LEAD ATTORNEY, Hinshaw & Culbertson LLP, Milwaukee, WI USA.

For Delos W Luedtke, Plaintiff (1:23cv539): Timothy M Whiting, LEAD ATTORNEY, Whiting Law Group Ltd, Chicago, IL USA.

For Sysco Corporation, Defendant (1:23cv539): James J Temple, Mulherin Rehfeldt & Varchetto PC, Wheaton, IL USA.

For Mode Transportation LLC, Defendant (1:23cv539): Sara M Butler, LEAD ATTORNEY, Hinshaw & Culbertson LLP, Milwaukee, WI USA.

For Mitchell Tischauser, Plaintiff (1:23cv556): Rene J L’Esperance, LEAD ATTORNEY, L’Esperance & Feidt LLC, Hortonville, WI USA.

For Sysco Corporation, Defendant (1:23cv556): James J Temple, Mulherin Rehfeldt & Varchetto PC, Wheaton, IL USA; James J Temple, Mulherin Rehfeldt & Varchetto PC.

For Mitchell Tischauser, Plaintiff (1:20-cv-01291-WCG): Rene J L’Esperance, L’Esperance & Feidt LLC, Hortonville, WI.

For Delos W Luedtke, Consolidated Plaintiff (1:20-cv-01291-WCG): Jennifer Marie Rice, Timothy M Whiting, LEAD ATTORNEYS, [*4] Whiting Law Group Ltd, Chicago, IL; Steven L Toney, Toney Law Offices SC, Madison, WI.

For Paden Rothenberger, Consolidated Plaintiff (1:20-cv-01291-WCG): David J Bischmann, LEAD ATTORNEY, Laura A Lindner, Miles G Lindner, Lindner Law LLC, Milwaukee, WI.

For Dustin J Demitriou, Ronda Demitriou, Consolidated Plaintiffs (1:20-cv-01291-WCG): Thomas A Perlberg, LEAD ATTORNEY, Hupy and Abraham SC, Milwaukee, WI.

For Donnelly Transportation Inc, Ace Property & Casualty Insurance Company, Defendants (1:20-cv-01291-WCG): Vincent M Casieri, Schueler Dallavo & Casieri, Chicago, IL.

For Josue R Hidalgo-Clarke, Defendant (1:20-cv-01291-WCG): Edward P Gibbons, Kyle T Geiger, Walker Wilcox Matousek LLP, Chicago, IL; Maria DelPizzo Sanders, von Briesen & Roper SC, Milwaukee, WI; Vincent M Casieri, Schueler Dallavo & Casieri, Chicago, IL.

For Firebird Trucking Inc, Defendant (1:20-cv-01291-WCG): Edward P Gibbons, Kyle T Geiger, Walker Wilcox Matousek LLP, Chicago, IL; Maria DelPizzo Sanders, von Briesen & Roper SC, Milwaukee, WI.

For State National Insurance Co Inc, Defendant (1:20-cv-01291-WCG): Clayton L Riddle, LEAD ATTORNEY, Maria DelPizzo Sanders, von Briesen & Roper SC, Milwaukee, WI; Kyle T Geiger, [*5] LEAD ATTORNEY, Walker Wilcox Matousek LLP, Chicago, IL.

Judges: William C. Griesbach, United States District Judge.

Opinion by: William C. Griesbach

Opinion

DECISION AND ORDER GRANTING MOTIONS TO DISMISS

These consolidated cases arise out of a motor vehicle accident that occurred on January 24, 2020, on U.S. Highway 45 in the Town of Caledonia in Waupaca County, Wisconsin. Plaintiffs Mitchell Tischauser, Delos W. Luedtke, Paden Rothenberger, and Dustin J. Demitriou allege that they were seriously injured when a commercial motor vehicle (CMV) tractor and trailer combination driven by Defendant Josue R. Hidalgo-Clarke crossed the center line and collided with their vehicle. Plaintiff Ronda Demitriou claims loss of consortium due to the injuries sustained by her husband. At the time of the collision, Clarke was en route to pick up a load of products, purchased by Defendant Sysco Corporation, from Manawa, Wisconsin, and transport them to a distribution center in Front Royal, Virginia. According to Plaintiffs’ respective complaints, Clarke was employed as a driver by Defendant Firebird Trucking, Inc., and by Defendant Donnelly Transportation, Inc., and Firebird owned the truck that Clarke was driving. Defendant Sysco [*6] worked with a broker, Defendant Mode Transportation, LLC, to hire Donnelly as the carrier. Donnelly, in turn, hired Firebird, resulting in Clarke being the CMV driver for the purpose of moving Sysco’s goods for profit. The court has jurisdiction under 28 U.S.C. § 1332, as Plaintiffs are all citizens of the State of Wisconsin, while Defendants are citizens of other States, and the amount in controversy exceeds $75,000.

Plaintiffs’ amended complaints added Sysco and Mode as defendants and asserted four claims against them: (1) negligent selection/hiring, training, or supervision; (2) agency/vicarious liability; (3) joint enterprise/venture; and (4) loss of consortium to as to Ms. Demitriou. See Luedtke 2d Am. Compl. ¶¶ 102-216 & 446-59, Dkt. No. 116; Demitriou Am. Compl. ¶¶ 49-162, 390-403 & 434-41, Dkt. No. 117; Rothenberger Am. Compl. ¶¶ 94-206 & 436-49, Dkt. No. 18; Tischauser Am. Compl. ¶¶ 109-222 & 452-59, Dkt. No. 119. Mode and Sysco moved for dismissal of Plaintiffs’ claims against them on the grounds that they are preempted by federal law, the amended complaints fail to state claims against them upon which relief can be granted under Rule 12(b)(6), and that the claims are barred by Wisconsin’s three-year [*7] statute of limitations for personal injury actions, Wis. Stat. § 893.54(1m)(a).

On July 18, 2023, after the motions were fully briefed, the Seventh Circuit issued its decision in Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453 (7th Cir. 2023), which held that the Federal Aviation Administration Authorization Act (FAAAA), specifically 49 U.S.C. § 14501(c), preempted a claim against a freight broker to recover for negligent hiring of a motor vehicle carrier whose employee was driving a truck involved in an accident that resulted in the death of the plaintiff’s husband. In so ruling, the court held that “the plain text and statutory scheme [of the FAAAA] indicate that 49 U.S.C. § 14501(c)(1) bars Ye’s negligent hiring claim against GlobalTranz [a broker] and that the [FAAAA’s] safety exception in § 14501(c)(2)(A) does not save it from preemption.” Id. at 456, 466.

In light of the Seventh Circuit’s decision in Ye, the court held a hearing on Sysco and Mode’s motions to dismiss on August 1, 2023. At the conclusion of the hearing, the court orally granted both motions, holding that Ye was controlling as to Plaintiffs’ claims against Mode and that, while it was less clear that Ye controlled as to Plaintiffs’ claims against Sysco, the complaints failed to state any claim against Sysco and Mode. This written decision is intended to confirm the court’s ruling [*8] from the bench. The court further concludes that Plaintiffs’ claims against Sysco are also preempted and that the claims of Plaintiffs Dustin and Ronda Demitriou are barred under the applicable statute of limitations.

LEGAL STANDARD

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 776 (7th Cir. 2022). Rule 8 requires a pleading to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion for Rule 12(b)(6) dismissal, a complaint must contain factual allegations that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). While a plaintiff is not required to plead detailed factual allegations, he must plead “more than labels and conclusions.” Id. Therefore, a simple, “formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570) (internal citations [*9] and quotations marks omitted); see also Yasak v. Ret. Bd. of the Policemen’s Annuity & Benefit Fund of Chi., 357 F.3d 677, 678 (7th Cir. 2004).

Dismissal under Rule 12(b)(6) may also be granted “when a plaintiff’s complaint nonetheless sets out all of the elements of an affirmative defense.” Independent Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012). This includes the affirmative defense of preemption. Gravitt v. Mentor Worldwide, LLC, 289 F. Supp. 3d 877, 884 (N.D. Ill. 2018) (dismissing plaintiff’s FDA noncompliance claims as preempted under § 360k(a) on defendant’s 12(b)(6) motion); see also Ramljak v. Boston Sci. Corp., No. 20-C-1903, 2021 U.S. Dist. LEXIS 62624, 2021 WL 1209025, at *2 (N.D. Ill. March 31, 2021). Although more properly considered on a motion for judgment on the pleadings under Rule 12(c), the difference is in form only because “[a] motion for judgment on the pleadings under Rule 12(c) . . . is governed by the same standards as a motion to dismiss for failure to state a claim.” Laverty v. Smith & Nephew, Inc., 197 F. Supp. 3d 1026, 1029 (N.D. Ill. 2016) (quoting BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015)).

ANALYSIS

A. Federal Preemption

The FAAAA provides that, subject to limited exceptions, 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 motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). As noted above, Ye held that this provision barred the plaintiff’s negligent hiring claim against the freight broker in that case. At the conclusion [*10] of the hearing on Mode’s and Sysco’s motions, the court held that Plaintiffs’ claims against Mode were clearly preempted in light of the Seventh Circuit’s decision in Ye. The court did not hold at that time that Plaintiffs’ claims against Sysco were likewise preempted under the FAAAA but invited supplemental authority in support of the proposition that “the shipper, someone in the position of Sysco, would be entitled to that protection.” Tr. at 24:25-25:4. In response to the court’s invitation, counsel for Sysco pointed the court to Rowe v. New Hampshire Motor Transport Association, 552 U.S. 364, 128 S. Ct. 989, 169 L. Ed. 2d 933 (2008), and briefly explained the case’s applicability. Having given further consideration to Rowe, the court now concludes that Plaintiffs’ claims against Sysco are also preempted under 49 U.S.C. § 14501(c)(1).

The arguments Plaintiffs offered against Mode’s contention that the FAAAA preempts Plaintiffs’ claims against it are unpersuasive. As the court noted at oral argument, Ye essentially held that state tort law governing negligence actions against brokers is preempted by the FAAAA because those laws significantly impact the price and cost, as well as the regulation, of interstate trucking and interstate transportation. In Ye, the court held that the party seeking to establish preemption [*11] “must show both that a state enacted or attempted to enforce a law and that the state law relates to broker rates, routes, or services either by expressly referring to them, or by having a significant economic effect on them.” 74 F.4th at 458 (internal quotations omitted). Ye determined that the broker in that case, GlobalTranz Enterprises, Inc., satisfied both parts of the test. First, common law tort claims have the force and effect of law. Id. at 459 (citing Northwest, Inc. v. Ginsberg, 572 U.S. 273, 281-82, 134 S. Ct. 1422, 188 L. Ed. 2d 538 (2014)). Second, the application of Illinois’ common law of negligence would have a significant economic effect on broker services:

By recognizing common-law negligence claims, courts would impose in the name of state law a new and clear duty of care on brokers, the breach of which would result in a monetary judgment. This is exactly what Ye seeks here against GlobalTranz. To avoid these costly damages payouts, GlobalTranz and other brokers would change how they conduct their services—for instance, by incurring new costs to evaluate motor carriers. Then, by changing their hiring processes, brokers would likely hire different motor carriers than they would have otherwise hired without the state negligence standards. Indeed, that is the centerpiece of Ye’s claim: [*12] that GlobalTranz should not have hired Global Sunrise.

Id.

The court in Ye then analyzed the FAAAA’s safety exception, which provides that laws within a state’s “safety regulatory authority . . . with respect to motor vehicles” are not preempted. Id. at 460 (quoting 49 U.S.C. § 14501(c)(2)(A)). The court determined that the safety exception did not save Ye’s claim. Preliminarily, the court explained that it did not need to reach the issue of whether “a state’s tort law is part of its ‘safety regulatory authority'” because it “conclude[d] that Ye’s claims fail to satisfy the second half of the safety exception’s text”—i.e., “a common law negligence claim enforced against a broker is not a law that is ‘with respect to motor vehicles.'” Id. (quoting 49 U.S.C. § 14501(c)(2)(A)). The basis for that holding was that “the exception requires a direct link between a state’s law and motor vehicle safety,” and the court saw “no such direct link between negligent hiring claims against brokers and motor vehicle safety.” Id.

In particular, the FAAAA’s text did not support the existence of a direct link because the definition of “motor vehicle,” see 49 U.S.C. § 13102(16), does not include brokers, and there is “no mention of brokers in the safety exception itself . . . which suggests [*13] that such claims may be outside the scope of the exception’s plain text.” Id. (citing Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261-62, 133 S. Ct. 1769, 185 L. Ed. 2d 909 (2013)). The rest of the text of the safety exception “carefully except[s] state laws for motor vehicle safety, cargo loads, and motor carrier insurance”—but is devoid of “any reference to brokers or broker services.” Id. at 461. And “[w]hile it listed broker services in § 14501(c)(1)‘s express preemption provision, Congress declined to expressly mention brokers again in reference to states’ safety authority. Reading further, we see the same omission of brokers from § 14501(c)(2)‘s other savings provisions for ‘intrastate transportation of household goods’ and ‘tow truck operations.’ Id. § 14501(c)(2)(B), (C).” Id.

Moreover, because “Congress could have chosen to save state safety laws enforced ‘with respect to motor carriers and brokers,’ but it did not,” the court “hesitate[d] to read broker services into parts of the statute where Congress declined to expressly name them, especially when it contemplated them elsewhere within the same statutory scheme.” Id. (citing Rotkiske v. Klemm, 140 S. Ct. 355, 361, 205 L. Ed. 2d 291 (2019) (“A textual judicial supplementation is particularly inappropriate when, as here, Congress has shown that it knows how to adopt the omitted language or provision.”)). Finally, in § 14501(b), titled “Freight [*14] Forwarders and Brokers,” Congress “directly addressed state regulation of brokers by prohibiting states from enacting or enforcing laws ‘relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.'” Id. (quoting 49 U.S.C. § 14501(b)(1)). “Following this broad preemption provision, however, Congress did not include a safety exception—another telling omission given that Congress included safety exceptions to the parallel preemption provisions for motor carriers of property (at issue here) and motor carriers of passengers.” Id. In sum, the FAAAA’s “text makes clear that Congress views motor vehicle safety regulations separately and apart from those provisions imposing obligations on brokers. And this separateness counsels a reading of ‘with respect to motor vehicles’ that requires a direct connection between the potentially exempted state law and motor vehicles. Any other construction would expand the safety exception’s scope without a clear, text-based limit.” Id. at 462 (quoting 49 U.S.C. § 14501(c)(2)(A)). Accordingly, Ye agreed with the district court that “the connection . . . between a broker hiring standard and motor vehicles” is “too attenuated to be saved under § 14501(c)(2)(A).” Id.

The instant case involves [*15] various Wisconsin common law tort claims against Mode, a broker. Ye involved just one Illinois common law tort claim against GlobalTranz, also a broker. However, nothing in Ye suggests that either the jurisdictional provenance of a plaintiff’s tort claims or the precise nature of those tort claims should alter the outcome. Ye dealt specifically with only negligent hiring and vicarious liability claims under Illinois’ common law brought against a broker. In addition to their negligent hiring and vicarious liability claims, Plaintiffs brought Wisconsin common law tort claims for joint enterprise/venture. However, all common law claims have the force and effect of law. Id. at 459 (internal citation omitted). And each of Plaintiffs’ claims here “would have a significant economic effect on broker services,” just as the negligent hiring claim in Ye would have. Id. Accordingly, Plaintiffs’ claims against Mode are preempted by the FAAAA. Notwithstanding Plaintiffs’ contention at oral argument, see Tr. at 4:13-20, 5:23-25, & 6:06-08, Ye cannot be read to suggest that the jurisdictional provenance of a tort, or the type of tort at issue, makes a difference to that conclusion. See Ye, 74 F.4th at 458-59 (clarifying that the preemption [*16] inquiry is properly focused on whether the state tort law that the plaintiff is attempting to enforce “would have a significant economic effect on broker services” and otherwise not making a distinction based on the tort’s jurisdictional origins or what specific tort it is). In addition, all the reasons that Ye gave for why the safety exception does not apply to brokers straightforwardly apply here. Accordingly, Plaintiffs’ tort claims against Mode are preempted by the FAAAA.

The court turns next to Sysco’s argument that the FAAAA preempts Plaintiffs’ claims against it when Ye is read in conjunction with Rowe v. New Hampshire Motor Transport Ass’n, 552 U.S. 364, 128 S. Ct. 989, 169 L. Ed. 2d 933 (2008). Rowe considered “two provisions of a Maine tobacco law, which regulate[d] the delivery of tobacco to customers within the State,” and whether they were preempted by § 14501(c)(1) of the FAAAA, which provides, in relevant part, that “a State . . . may not enact or enforce a law . . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 552 U.S. at 367-68. The first section of Maine’s tobacco law, § 1555-C, prohibited “anyone other than a Maine-licensed tobacco retailer to accept an order for delivery of tobacco.” Id. at 368 (quoting Me. Rev. Stat. Ann., Tit. 22, § 1555-C(1)). It then added that, “when a licensed retailer accepts [*17] an order and ships tobacco, the retailer must ‘utilize a delivery service’ that provides a special kind of recipient-verification service.” Id. (quoting § 1555-C(3)(c)). Moreover, the delivery service was required to

make certain that (1) the person who bought the tobacco is the person to whom the package is addressed; (2) the person to whom the package is addressed is of legal age to purchase tobacco; (3) the person to whom the package is addressed has himself or herself signed for the package; and (4) the person to whom the package is addressed, if under the age of 27, has produced a valid government-issued photo identification with proof of age.

Id. at 368-69 (citation omitted). Violations were punishable by civil penalties. Id. at 369 (citing §§ 1555-C(3)(E) to C(3)(F) (first offense up to $1,500 and subsequent offenses up to $5,000)).

The second section, § 1555-D, prohibited “any person ‘knowingly’ to ‘transport’ a ‘tobacco product’ to ‘a person’ in Maine unless either the sender or the receiver has a Maine license.” Id. (quoting § 1555-D). It then added that a “‘person is deemed to know that a package contains a tobacco product’ (1) if the package is marked as containing tobacco and displays the name and license number of a Maine-licensed tobacco retailer; [*18] or (2) if the person receives the package from someone whose name appears on a list of un-licensed tobacco retailers that Maine’s attorney general distributes to various package-delivery companies.” Id. (quoting § 1555-D) (emphasis in Rowe). Violations of this section were again punishable by civil penalties. Id. (citing § 1555-D(2) (up to $1,500 per violation against violator and/or violator’s employer)).

The Court held that the FAAAA preempts both provisions. Id. at 371. It explained:

We concede that the regulation here is less “direct” than it might be, for it tells shippers what to choose rather than carriers what to do. Nonetheless, the effect of the regulation is that carriers will have to offer tobacco delivery services that differ significantly from those that, in the absence of the regulation, the market might dictate. And that being so, “treating sales restrictions and purchase restrictions differently for pre-emption purposes would make no sense.” Quoting Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 255, 124 S. Ct. 1756, 158 L. Ed. 2d 529 (2004). If federal law pre-empts state efforts to regulate, and consequently to affect, the advertising about carrier rates and services at issue in Morales, it must pre-empt Maine’s efforts to regulate carrier delivery services themselves.

Id. at 372. Rowe‘s logic applies here. [*19] Like Maine’s regulation of tobacco shippers, Wisconsin’s common law of torts amounts to “regulat[ion] of carrier delivery services,” see id., and imposes costs on the operations of Sysco, a shipper, that the FAAAA was intended to preempt. See Ye, 74 F.4th at 459. Accordingly, Plaintiffs’ claims against Sysco, like those against Mode, are preempted and therefore dismissed.

B. Failure to State a Claim

The court also holds that Plaintiffs’ amended complaints fail to state legally cognizable claims against both Mode and Sysco. In so ruling, the court notes that, in this circuit, the Twombly/Iqbal pleading standard controls. Under that standard, a complaint must make factual allegations that, accepted as true, state a claim to relief that is plausible on its face. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. Applying that standard to the amended complaints in this case, the court concludes that the complaints do not assert sufficient factual matter that, accepted as true, state a claim for relief that has facial plausibility. In other words, they have not pled “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570) (internal citations and quotations marks omitted).

Beginning [*20] with negligent selection, this claim requires the plaintiff to allege that “(1) there was a wrongful act by the employee; (2) the wrongful act by the employee was a cause of injuries to the plaintiff; (3) the employer was negligent in hiring, training or supervising the employee; and (4) the employer’s negligence was a cause of the employee’s wrongful act.” See Scholz v. United States, No. 16-CV-1052, 2017 U.S. Dist. LEXIS 10951, 2017 WL 375651, at *4 (E.D. Wis. Jan. 25, 2017) (citing Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 267-68, 580 N.W.2d 233 (1998)). Accordingly, there must be a “nexus” between the negligent selection by the employer and the act of the employee. Id. (citing Miller, 219 Wis. 2d at 262). In assessing that employer-employee “nexus,” the court “asks two questions with respect to causation: first, was the wrongful act of the employee a cause-in-fact of the plaintiff’s injury and, second, was the negligence of the employer a cause-in-fact of the wrongful act of the employee.” Id. In sum, the test of cause-in-fact “is whether the negligence was a ‘substantial factor’ in producing the injury.” Viasystems Techs. Corp., LLC v. Landstar Ranger Inc., No. 10-C-577, 2012 U.S. Dist. LEXIS 171133, 2012 WL 6020015, at *9 (E.D. Wis. Dec. 3, 2012) (citing Morgan v. Penn. Gen. Ins. Co., 87 Wis. 2d 723, 735, 275 N.W.2d 660 (1979)).

Here, Plaintiffs have alleged no facts suggesting that Mode and Sysco were Clarke’s employers or that their actions were a substantial factor in the accident. Clarke was the driver of the CMV, and there are no allegations that either Mode or Sysco ordered Clarke to drive unsafely, [*21] speed, ignore traffic rules, or otherwise break the law. Id. at 18:24-20:06. Indeed, there is no allegation that either Mode or Sysco even knew Clarke would be driving. At the time of the accident, Clarke had not even picked up the Sysco shipment that he was to transport to Virginia. Absent more, Plaintiffs have failed to state a claim for negligent selection, and that claim must be dismissed.

Mode and Sysco also seek dismissal of Plaintiffs’ joint enterprise/venture claim. To constitute a joint enterprise under Wisconsin law, a party must allege “(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.” White v. Fincantieri Bay Shipbuilding, 569 F. Supp. 3d 794, 801 (E.D. Wis. 2021) (citing Spearing v. Bayfield Cnty., 133 Wis. 2d 165, 173, 394 N.W.2d 761 (Wis. Ct. App. 1986)); see also Restatement (Second) of Torts § 491, cmt. c (1965). “If parties engage in a joint enterprise, then each is the agent of the other, within the scope of the enterprise, and each may be held vicariously liable to one who brings a claim arising from the product of the joint venture.” Spearing, 133 Wis. 2d at 173.

Here, there are no allegations showing the existence of a common enterprise among [*22] Defendants that shares profits. Instead, the parties entered contracts in which services were provided in return for set payment. Contractual relations of this kind do not create joint ventures or enterprises, in part, because there is no profit sharing. As the court explained during oral argument, Mode and Sysco “would have gotten paid if they would have completed the job, . . . [b]ut they would not have shared the profits. They would have been paid the rate that was agreed upon under their contract with the parties. A contract isn’t a joint enterprise. A contract requires each party to perform or to pay for performance.

Mode and Sysco also seek dismissal of Plaintiffs’ agency/vicarious liability claim. “In a negligence case, the plaintiff must prove four elements: (1) [a] duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury and (4) an actual loss or damage as a result of the injury.” Martindale v. Ripp, 2001 WI 113, ¶ 33, 246 Wis. 2d 67, 629 N.W.2d 698 (citation and quotation marks omitted, brackets in Martindale). “A person is generally only liable for his or her own torts.” Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, ¶ 17, 273 Wis. 2d 106, 682 N.W.2d 328 (citing Lewis v. Physicians Ins. Co. of Wis., 2001 WI 60, ¶ 11, 243 Wis. 2d 648, 627 N.W.2d 484). “Under certain circumstances, however, the law will impose vicarious liability on a person who did [*23] not commit the tortious conduct but nevertheless is deemed responsible by virtue of the close relationship between that person and the tortfeasor.” Id. That is the doctrine of respondeat superior, under which “a master is subject to liability for the tortious acts of his or her servant.” Id. at ¶ 18 (quoting Pamperin v. Trinity Mem’l Hosp., 144 Wis. 2d 188, 198, 423 N.W.2d 848 (1988); Arsand v. City of Franklin, 83 Wis. 2d 40, 45, 264 N.W.2d 579 (1978)).

Generally, a “master” is an employer, and a “servant” is an employee, and such a relationship is a prerequisite to respondeat superior vicarious liability; unless an agent is also a servant, his principal will not be vicariously liable for his tortious conduct except under certain limited circumstances. Id. at ¶¶ 18-20 (citations omitted). “The master/servant relationship is a species of agency; all servants are agents but not every agent is a servant.” Id. at ¶ 20. In general, “a master will only be liable for torts of the servant committed within the scope of the servant’s employment.” Id. at ¶ 23 (citing Scott v. Min-Aqua Bats Water Ski Club, Inc., 79 Wis. 2d 316, 320-21, 255 N.W.2d 536 (1977); Restatement (Second) of Agency § 219(1)). Whether a tortfeasor was acting within the scope of employment at the time the injury was inflicted is a question of fact for the jury to decide. Id.

An independent contractor is an example of a person who is an agent but not a servant. Id. at ¶ 24 (citing Arsand, 83 Wis. 2d at 51-52; Restatement (Second) of Agency § 2(3), cmt. b). An independent contractor is “a person who contracts with another [*24] to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Id. (quoting Restatement (Second) of Agency § 2(3); Wagner v. Cont’l Cas. Co., 143 Wis. 2d 379, 421 N.W.2d 835 (1988); Wis JI Civil 4060). Generally, an owner “is not responsible to a third person for the negligence of an independent contractor.” Wis JI-Civil 1022.6 (Liability of one employing independent contractor) (citing Brandenburg v. Briarwood Forestry Servs., LLC, 2014 WI 37, 354 Wis. 2d 413, 416-17, 847 N.W.2d 395 (2014)).

However, an owner or principal contractor must exercise ordinary care to prevent injury to third persons or damage to property if the work to be done is inherently dangerous. Id. Another exception is when the contract between the owner and the third party requires the owner to take ordinary care to prevent injury to the third party or damage to the property. Id. (citing Medley v. Trenton Inv. Co., 205 Wis. 30, 236 N.W. 713, 715 (1931)). A contract’s use of the label “independent contractor” is “not by itself dispositive; the test looks beyond labels to factual indicia of control or right to control.” Kerl, 273 Wis. 2d 106, ¶ 24 (citing Pamperin, 144 Wis. 2d at 201). “To impose vicarious liability where the requisite degree of control is lacking would not” be in keeping with the logic of the respondeat superior doctrine. Id. at ¶ 27. “If a principal does not control or have the right to control the day-to-day physical conduct of the agent, then [*25] the opportunity and incentive to promote safety and the exercise of due care are not present, and imposing liability without fault becomes difficult to justify on fairness grounds.” Id.

Here, truck driving is not inherently dangerous. As the court explained, that exception “applies to people that deal with explosives. This [exception] applies to . . . different kind of work than simply driving a truck.” See Wis. JI-Civil 1022.6 (“Inherently dangerous work is work from which one can naturally expect harm to arise unless something is done to avoid that harm.”). As for the contractual exception, there’s no allegation here that there are contracts between Sysco and Mode and anyone else that are intended to require Mode and Sysco to take ordinary care to prevent injuries to third parties or damage to property. The general understanding of what shippers do and what brokers do would certainly suggest this isn’t the type of case where you would have that kind of liability, that kind of control.

Mode and Sysco also seek dismissal of Ms. Demitrou’s loss of consortium claim. “Claims for the loss of society, companionship, and consortium are derivative even though they technically ‘belong’ to the close relative making [*26] the claim.” Finnegan ex rel. Skoglind v. Wis. Patients Comp. Fund, 2003 WI 98, ¶ 26, 263 Wis. 2d 574, 666 N.W.2d 797 (collecting cases). As a result, “a derivative claim for loss of consortium or loss of society and companionship does not have its own elements distinct from the negligence claim to which it attaches.” Id. at ¶ 28. Indeed, “juries are instructed that loss of consortium or loss of society and companionship are categories of damages, not separate negligence inquiries.” Id. (citing Wis. JI-Civil 1815 (Injury to spouse: loss of consortium)). Because Plaintiffs’ claims of negligent selection, joint enterprise/venture, and agency/vicarious liability against Mode and Sysco fail as a matter of law, and a loss of consortium claim is derivative of the underlying claims, Ms. Demitriou’s loss of consortium claim against them must be dismissed.

C. Statute of Limitations

Finally, at the August 1, 2023 hearing, the parties discussed the applicability of Mode and Sysco’s statute of limitations defense. In Wisconsin, “[a]n action to recover damages . . . for injuries to the person caused or sustained by or arising from an accident involving a motor vehicle” must be “commenced within 3 years” of the injury or else it is time barred. Wis. Stat. § 893.54(1m)(a). The injury-causing collision at issue in this case occurred on January 24, 2020. Accordingly, [*27] Plaintiffs’ action is barred beginning January 24, 2023.

Wisconsin’s three-year statute of limitations on personal injury actions, Wis. Stat. § 893.54(1m)(a), does not bar all of the plaintiffs’ claims against Mode and Sysco. Plaintiffs Tischauser, Luedtke, and Rothenberger commenced state court actions against those defendants that were timely filed within the statute of limitations and consolidated with the cases presently before the court. It is the commencement of the action, not the service of the complaint, that determines whether an action falls within the statute of limitations. See Wis. Stat. §§ 801.02(1), 893.54. In this case, that rule clearly applies to Tischauser, Luedtke, and Rothenberger, each of whom filed state court actions naming Mode and Sysco as defendants on January 23, 2023. See Case No. 23-cv-556, Dkt. Nos. 1-1, 1-2; Case No. 23-cv-539, Dkt. Nos. 1-1, 1-2; Case No. 23-cv-538, Dkt. Nos. 1-1, 1-2. However, because the Demitrious did not file an action naming Mode and Sysco as defendants before January 24, 2023, the statute of limitations provides an additional reason, at least as to them, to dismiss Mode and Sysco as defendants in this action.

CONCLUSION

For the foregoing reasons, Mode’s and Sysco’s motions to dismiss [*28] Plaintiffs’ tort claims against them because they are preempted by federal law and because they fail to state a claim upon which relief can be granted under Rule 12(b)(6) (Dkt. Nos. 142, 157 & 169) are GRANTED. Mode’s and Sysco’s motions to dismiss the claims asserted by Dustin and Rhonda Demitrou are also granted on the ground that they are barred by the statute of limitations. Accordingly, Mode and Sysco are dismissed as defendants from this action. Because claims remain as to other parties, this order is not final and judgment will not be entered. Mode and Sysco are the only named defendants in Case Nos. 23-cv-538, 23-cv-539, and 23-cv-556; therefore, those cases are terminated.

SO ORDERED Green Bay, Wisconsin this 4th day of December, 2023.

/s/ William C. Griesbach

William C. Griesbach

United States District Judge

End of Document

Great West Cas. Co. v. Kirsch Transp. Servs., Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA WESTERN

GREAT WEST CASUALTY COMPANY, Plaintiff, vs. KIRSCH TRANSPORTATION SERVICES, INC., Defendant.

BARRY M. CREAGAN, Individually; BARRY M. CREAGAN and LAUREN M. CREAGAN, as Natural Parents and Co-Administrators of the Estate of M.C. and as Parents and Natural Guardians of J.C., a Minor; and REBECCA DEGONDEA, as Mother and Natural Guardian of L.D., a Minor, Counterclaim Plaintiffs, vs. GREAT WEST CASUALTY COMPANY, Counterclaim Defendant.

I. Introduction.

Kirsch Transportation Services, Inc. (“Kirsch”) has secondary insurance with Great West Casualty Company (“Great West”) for situations in which primary insurance obtained by a third party “is not collectible.” Great West argues that the primary insurance is “collectible” when the primary insurer pays full policy limits on behalf of the third party, even if Kirsch itself was not a named insured by that policy. The Court agrees and therefore concludes that Great West does not owe anything to Kirsch or its assignees under the secondary policy.

II. Undisputed Facts.

Kirsch-Natex Relationship and Ohio Accident.

Kirsch is a freight brokerage company that hires motor carriers to haul freight for Kirsch’s customers. (ECF 116-2, ¶ 1.) One of the motor carriers with whom it worked was Natex Group, Inc. (“Natex”). (ECF 117-1, ¶ 8.) In August 2016, a driver for Natex was involved in a serious vehicle accident in Ohio while carrying a load brokered by Kirsch. (ECF 116-2, ¶¶ 19–20.) The accident resulted in the filing of personal injury lawsuits against Natex, Kirsch, Walmart, and other defendants in the United States District Court for the Northern District of Ohio. (Id., ¶¶ 20–21.) (For reasons explained below, the plaintiffs in the Ohio personal injury lawsuits are Counterclaim- Plaintiffs here and will be referred to as the “Creagan Plaintiffs.”) The accident also resulted in the filing of at least three separate cases regarding insurance coverage, two in Iowa (including this case) and one in Ohio.

Before discussing the personal injury and insurance coverage cases, it is helpful to understand the relationship between Kirsch and Natex, which was governed by a written Broker- Carrier Agreement. (Id., ¶¶ 9–10.) The Broker-Carrier Agreement required Natex, inter alia, to carry auto liability insurance with a minimum limit of $1,000,000, name Kirsch as an additional insured on the policy, and provide Kirsch with a valid certificate of insurance. (Id.) The Broker- Carrier Agreement further contained a broad indemnity provision requiring Natex to defend, indemnify, and hold Kirsch harmless against any and all losses from Natex’s performance. (ECF 106-8, p. 4, ¶ 4.)

At all relevant times, Natex had an automobile insurance policy with Artisan Truckers and Casualty Insurance Company (“Artisan”). (ECF 116-2, ¶ 11.) The Artisan policy provided Natex with commercial liability insurance with a single limit of liability of $1,000,000 and an “MCS-90 Endorsement” with a $750,000 limit. (Id., ¶ 12.) Kirsch was not a named insured on the Artisan policy. (Id., ¶ 16.) Kirsch did, however, have a separate insurance policy with Great West for “contingent” coverage. (ECF 106-17, pp. 9–10.) This dispute revolves around the proper interpretation of the Great West policy. Relevant provisions of the policy will be discussed in the Legal Analysis section, below.

Personal Injury and Coverage Litigation Arising Out of the Ohio Accident.

In the personal injury lawsuits in Ohio, the Creagan Plaintiffs pursued negligence claims against Natex and its driver, as well as claims against Kirsch under two theories: (i) vicarious

liability for the alleged negligence of Natex and the driver; and (ii) direct liability for Kirsch’s own alleged negligence in arranging for commercial transportation by an unsafe driver and motor carrier. (ECF 117-1, ¶¶ 6–7.) Kirsch tendered its defense of the Ohio cases to Artisan, which accepted the tender as to the vicarious liability claims against Kirsch. (Id., ¶ 10.) The parties agree Kirsch was not an insured under the Artisan policy for claims of direct negligence. (ECF 116-2, ¶ 17.) Kirsch also tendered its defense in the Ohio personal injury lawsuits to Great West, but the tender was denied. (ECF 117-1, ¶ 16.)

The first coverage-related case arising out of the accident was filed by Great West in the Southern District of Iowa in April 2017. See Great W. Cas. Co. v. Wal-Mart Stores, Inc., 1:17-cv- 00010-JAJ-CFB (S.D. Iowa Apr. 25, 2017). This Court (Jarvey, C.J.) concluded that Kirsch and Walmart did not have coverage for the accident under a Great West commercial general liability policy. See Great W. Cas. Co. v. Wal-Mart Stores, Inc., No. 1:17-CV-00010-JAJ, 2018 WL 8758889, at *5 (S.D. Iowa Mar. 5, 2018). This is not the policy at issue here, and the first Iowa case is relevant solely to provide context. (ECF 117, pp. 13–15.)¹

The second coverage case was an interpleader action filed by Artisan in the Northern District of Ohio in November 2017. (ECF 116-2, ¶¶ 22–23.) The parties disagree on how to characterize Artisan’s position in the interpleader action, with the Creagan Plaintiffs emphasizing that Artisan pled, inter alia, that the Natex truck involved in the accident was not an insured automobile at the time of the accident and thus the only available coverage was the $750,000 from the MCS-90 Endorsement, pursuant to which Artisan owes no duty to defend or indemnify anyone other than Natex. (ECF 107-2, ¶ 23.) Great West, by contrast, asserts that it is a contradiction for an insurer to simultaneously deny coverage and interplead funds. (ECF 116-2, ¶¶ 23–24.) In any event, it is undisputed that Kirsch, like Artisan, argued that: (i) the Artisan policy did not provide coverage for Natex because Natex did not own the vehicle involved in the crash; and (ii) coverage under the Artisan policy was limited to the $750,000 in coverage under the MCS-90 Endorsement. (Id., ¶ 26.) In September 2020, the Northern District of Ohio concluded there was a fact question as to whether the vehicle was covered under the Artisan policy. (Id., ¶ 27.) See also Artisan & Truckers Cas. Co. v. Miller, No. 3:17-CV-2399, 2020 WL 5203478, at *3 (N.D. Ohio Sept. 1, 2020). The Court agreed with Kirsch, however, that Artisan owed a duty of indemnification under the MCS-90 Endorsement for actual judgments against Natex, and no other party, up to $750,000. See id. at *4.

Artisan’s Payments in the Ohio Interpleader Action.

The parties agree that Artisan ended up paying a significant amount of money to resolve the Ohio interpleader action, but they disagree on how much Artisan paid. Great West alleges that Artisan paid the full $1,000,000 policy limits, but the Creagan Plaintiffs assert that settlement agreements and releases in Great West’s appendix only show payments totaling $822,956.44. (ECF 117-1, ¶ 14.)

The total amount paid by Artisan is important to the disputed legal issues, and thus the Court carefully reviewed the appendix to determine whether there is a genuine issue of material fact as to the amount paid by Artisan. This review yielded two conclusions: first, the releases and settlement agreements indeed show that Artisan essentially exhausted the policy limits of $1,000,000 (with the exact amount being $999,847.12); and second, there is no legitimate basis for the Creagan Plaintiffs to suggest otherwise. The settlement agreements and releases in Great West’s appendix reflect payments from Artisan in the following amounts:

– $30,000 (ECF 106-15, p. 2);

– $826,890.24 (id., p. 4);

– $15,000 (id., p. 9);

– $2,956.88 (id., p. 12);

– $15,000 (id., p. 14);

– $1,619.59 (id., p. 16);

– $70,000 (id., p. 18);

– $3,878.90 (id., p. 20);

– $34,501.51 (id., p. 22).

When these amounts are added together, the total is $999.847.12. Other than the tiny (in context) discrepancy of $152.88, this is consistent with the testimony of Artisan’s corporate representative deponent, who said: “I do know that the million dollars was — was paid out.” (ECF 106-14, p. 13.) The Court therefore concludes there is no genuine dispute of material fact as to whether Artisan exhausted essentially the entirety of the $1,000,000 policy limits.

In the process of reviewing the appendix, the Court was able to identify the discrepancy that led the Creagan Plaintiffs to suggest the releases and settlement agreements only show payments of $822,956.44. On March 19, 2020, Artisan entered into a “Settlement Agreement, Release and Covenant Not to Execute” (hereinafter, the “Creagan Settlement Agreement”) with Barry M. Creagan and Lauren M. Creagan in their representative capacities. (ECF 106-15, pp. 4– 8.) Section 1.3 of the Creagan Settlement Agreement states that Natex and related parties “shall be credited with $826,890.24 herein agreed to be paid.” (Id., p. 4.) Section 2.0 goes on to explain, however, that the settlement would be structured so that injured parties would receive guaranteed monthly payments until 2028 or 2029 pursuant to an annuity with Pacific Life & Annuity Services. (Id., p. 5.) As the Iowa Supreme Court and other courts have recognized, structured settlements like this can be “win-win” for the insurer and injured party because they reduce the upfront cost to the insurer but can increase recovery in the long run for the injured party due to the tax advantages of spreading payments over time. See Thornton v. Am. Interstate Ins. Co., 897 N.W.2d 445, 467 (Iowa 2017) (“[A]n annuity offers a lower up-front cost to the insured, which lowers costs overall and allows win-win settlements. An annuity may offer some tax benefits to the [injured party].”);

W. United Life Assurance Co. v. Hayden, 64 F.3d 833, 839 (3d Cir. 1995) (“[A] structured settlement effectively shelters from taxation the returns from the investment of the lump-sum payment.”).

It is the use of the annuity that leads to the disagreement about how much Artisan “paid.” The Creagan Settlement Agreement states that the upfront cost of the annuity was only

$238,074.90, which, when added to the $411,925.10 that Artisan agreed as part of the same Creagan Settlement Agreement to pay for the injured parties’ attorney’s fees and disbursements, yields a total upfront payment from Artisan of $650,000. (Id., p. 5.) When added to the other payments identified above (not including the $826,890.24), this results in total payments from Artisan of $822,956.88, which is more-or-less what the Creagan Plaintiffs alleged when they said the total payments reflected in the settlement agreements and releases in Great West’s appendix only reflect payments of $822,956.44. The parties’ putative disagreement about whether Artisan paid $1,000,000 or only $822,956.44 is therefore a matter of form versus substance. The record shows that Artisan made settlement payments that exhausted the policy limits of $1,000,000 (minus the $152.88 discrepancy) but only needed to spend $822,956.44 (or, by the Court’s math, $822,956.88) to get there due to the structured nature of one of the settlements.

Here’s the problem: as noted above, the structured settlement was with Barry M. Creagan and Lauren M. Creagan (in their representative capacities), who are two-thirds of the Creagan Plaintiffs in this case. The Creagan Plaintiffs have not raised a genuine factual dispute about whether Artisan exhausted policy limits in the personal injury lawsuits in Ohio in a situation where the only discrepancy in the record (other than the $152.88) results from the agreement of two- thirds of those very same Creagan Plaintiffs to accept a structured settlement that reduced Artisan’s upfront payment.

Resolution of the Ohio Personal Injury and Coverage Actions.

While the parties litigated coverage issues in the Artisan interpleader action that eventually resulted in Artisan’s policy-limit payment, litigation also continued in the Ohio personal injury lawsuits. In December 2018, the Northern District of Ohio granted judgment as a matter of law for Kirsch on the Creagan Plaintiffs’ direct negligence claims, concluding those claims were preempted by the Federal Aviation Administration Authorization Act. See Creagan v. Wal-Mart Transportation, LLC, 354 F. Supp. 3d 808, 814 (N.D. Ohio 2018). This led to the Creagan Plaintiffs and Kirsch stipulating the following month to the dismissal with prejudice of the vicarious liability claims against Kirsch. (ECF 117-1, ¶ 12.) As a result of the dismissal, Artisan stopped defending Kirsch in the Ohio personal injury lawsuits, as Artisan had accepted the tender of defense only as to the vicarious liability claims, not the direct claims against Kirsch for its own alleged negligence. (Id.)

As to the direct claims, the Creagan Plaintiffs appealed the Northern District of Ohio’s preemption ruling to the Sixth Circuit. (Id., ¶ 15.) See also Creagan v. Wal-Mart Transportation, LLC, No. 3:16-CV-2788, 2020 WL 5203480, at *2 (N.D. Ohio Sept. 1, 2020) (certifying preemption ruling as final judgment for appeal pursuant to Fed. R. Civ. P. 54(b)). In May 2021, while the appeal was pending, Kirsch entered into a settlement agreement with the Creagan Plaintiffs. (ECF 116-2, ¶ 28.) Kirsch agreed to pay $350,000 to the Creagan Plaintiffs and to the entry of judgment against Kirsch in an amount to be determined by a neutral mediator, which ended up being $10,347,944.95. (Id.) Kirsch further agreed to assign its rights under the Great West policy to the Creagan Plaintiffs. (Id., ¶ 29.) In exchange, the Creagan Plaintiffs agreed not to execute the judgment against Kirsch. (Id.) To effectuate the settlement agreement, the Creagan Plaintiffs and Kirsch agreed to have the Sixth Circuit remand the case to the Northern District of Ohio for the entry of judgment. (ECF 117-1, ¶ 15.) Meaning: the Northern District of Ohio’s entry of summary judgment for Kirsch on the Creagan Plaintiffs’ direct negligence claims was vacated, but not because the Sixth Circuit concluded the ruling was wrong on the merits.

In February 2022, Kirsch—by now having entered the settlement agreement with the Creagan Plaintiffs—filed a renewed motion for summary judgment in the Artisan interpleader action. (ECF 116-2, ¶ 30.) In the now-unopposed motion, Kirsch argued that the Artisan policy did not provide coverage for the $10,347,944.95 judgment against Kirsch in the personal injury lawsuits. (Id.) The Northern District of Ohio granted the unopposed motion for summary judgment, holding that “the plain language of the Artisan Policy does not provide coverage for Kirsch” and entering a declaratory judgment that “[t]here is no coverage afforded under the Artisan Policy’s Auto Coverage Part for the Final Judgment entered in the [personal injury lawsuits].” (Id., ¶¶ 31–32.) See also Artisan & Truckers Cas. Co. v. Miller, No. 3:17-CV-3299, 2022 WL 4483195, at *1 (N.D. Ohio Sept. 27, 2022).

The net effect of the Ohio cases is that the Creagan Plaintiffs have a $10,347,944.95 judgment against Kirsch that cannot be collected from Artisan because: (i) Kirsch is not a named insured by the Artisan policy; and (ii) Artisan has already exhausted the policy limits of $1,000,000 anyway (except, possibly, for $152.88).

Great West’s Policy with Kirsch.

Great West filed this coverage case against Kirsch in April 2018, although it ended up being stayed for several years while the Ohio cases played themselves out. (ECF 20; ECF 21.) Litigation resumed in this Court in early 2022. In light of Kirsch’s assignment of rights in the Great West policy to the Creagan Plaintiffs, the Creagan Plaintiffs were granted leave to substitute as counterclaim-plaintiffs. (ECF 70.) Great West and the Creagan Plaintiffs now cross-move for summary judgment. (ECF 106; ECF 107.) The dispute revolves around the proper interpretation of Kirsch’s policy with Great West, which contains a coverage part entitled, “Commercial Auto Coverage Part – Iowa Motor Carrier Coverage Form,” and an endorsement entitled, “Brokerage Concerns – Broadened Contingent Coverage.” (ECF 116-2, ¶ 4.) The Court will describe and discuss the relevant policy language in the Legal Analysis section, below.

III. Summary Judgement Standards.

Summary judgment is appropriate when there is “no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. A genuine factual issue exists where the issue “can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “On a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts.’” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Plaintiff “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (omission in original) (quoting a prior version of Fed. R. Civ. P. 56(e)). “Insurance disputes are particularly well suited for summary judgment because the proper construction of an insurance contract is always an issue of law for the court.” Chicago Ins. Co. v. City of Council Bluffs, 713 F.3d 963, 969 (8th Cir. 2013).

IV. Legal Analysis.

Choice of Law and Legal Background.

Both sides ask the Court to apply Iowa law, while also acknowledging that there is no true conflict between Iowa law and the law of the other states (Nebraska and Ohio) that arguably might apply. (ECF 106-1, p. 7; ECF 107-1, pp. 5–6.) The Court agrees that Iowa has the “most significant relationship” to the dispute given that the Great West policy at issue uses the “Iowa Motor Coverage Carrier Form for Commercial Auto Coverage” (emphasis added) and the insured party, Kirsch, has its principal place of business here. See Weitz Co., LLC v. Lexington Ins. Co., 982 F. Supp. 2d 975, 982–83 (S.D. Iowa 2013). The Court therefore will apply Iowa law, although it agrees that the outcome would not change under Ohio or Nebraska law.

Under Iowa law, “[t]he cardinal principle in the construction and interpretation of insurance policies is that the intent of the parties at the time the policy was sold must control.” LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 307 (Iowa 1998). “Except in cases of ambiguity, the intent of the parties is determined by the language of the policy.” Id. “An ambiguity exists when, after application of our relevant rules of interpretation, a genuine uncertainty results as to which of two or more meanings is proper.” Am. Fam. Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 576 (Iowa 2004). “When two reasonable interpretations exist, the policy is construed most favorably to the insured.” Id.

The Great West Policy Does Not Provide Coverage for the Judgment Against Kirsch in the Ohio Personal Injury Lawsuits.The Great West Policy Provides Secondary Coverage for Kirsch on a Contingent Basis for Accidents on Brokered Loads.

The Great West policy states that Great West “will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance, or use of a covered ‘auto.’” (ECF 106-17, p. 49.) The scope of this coverage obligation is fleshed out in an endorsement entitled, “Brokerage Concerns – Broadened Contingent Coverage” (the “Brokerage Endorsement”). (Id., p. 9.) As explained in the Brokerage Endorsement, coverage applies to “Brokered autos,” which means “an ‘auto’ used by a ‘motor carrier’ under a written Brokerage Agreement with [Kirsch] that requires the ‘motor carrier’ to provide for the transportation of property as arranged by you.” (Id., p. 10.) There is no dispute, at a general level, about what these provisions mean: in certain circumstances, the Great West policy provides insurance coverage for Kirsch when it brokers the hauling of freight by motor carriers like Natex.

It is similarly undisputed that the Great West policy expects and requires motor carriers like Natex to have their own, primary insurance. Section B.1 of the Brokerage Endorsement states that Great West’s coverage does not apply unless, inter alia, “[t]he ‘motor carrier’ is required by written contract with you to carry auto liability insurance on the ‘brokered autos’.” (Id., p. 9.) Section B.1.a further states that “[t]he ‘motor carrier’ is required to furnish you with a certificate of insurance, a copy of the policy or a copy of the endorsement making you an additional insured on the ‘motor carriers’ liability policy.” (Id.) The parties agree—again, at a general level—that these provisions establish that the Brokerage Endorsement provides secondary insurance to Kirsch that is only meant to apply if there is a deficiency in the motor carrier’s primary insurance.

Great West’s Contingency Coverage Obligation Does Not Apply Because Natex’s Insurance Was “Collectible” (and Indeed Collected).

The parties stop seeing eye-to-eye when it comes to the proper interpretation of Section

B.1.b of the Brokerage Endorsement, which states that Great West’s coverage obligation kicks in if, “[a]t the time of an ‘accident,’ the insurance you [Kirsch] require is not collectible.” (Id.) To understand and evaluate the parties’ respective positions, it is helpful to start with the text of Section B.1 as a whole:

Covered Autos Liability Coverage provided by the policy for a “brokered auto” applies subject to the following provisions:

The “motor carrier” is required by written contract with you to carry auto liability insurance on the “brokered autos”.
1. The “motor carrier” is required to furnish you with a certificate of insurance, a copy of the policy or a copy of the endorsement making you an additional insured on the “motor carriers” liability policy; and
1. At the time of an “accident,” the insurance you require is not collectible.

(Id.) The Creagan Plaintiffs argue that insurance “is not collectible” for purposes of Section B.1.b when, as here, Kirsch is not named as an insured under the policy the motor carrier is required to have. To that end, the Creagan Plaintiffs point out that the Northern District of Ohio concluded “the plain language of the Artisan Policy does not provide coverage for Kirsch.” (ECF 107-1, p. 13.) Great West, by contrast, argues that “is not collectible” means the motor carrier’s insurance coverage was not collectible at all in connection with the accident; for example, if Natex inadvertently allowed its coverage to lapse or the insurer became insolvent. Here, because the insurance Natex had under its policy with Artisan was “collectible” to the full $1,000,000 policy limits, Great West argues that its contingent coverage obligation under the Brokerage Endorsement does not apply.

The Court agrees with Great West. When considered as a whole, the purpose of the Brokerage Endorsement is straightforward: to provide secondary insurance for Kirsch in connection with its brokering business in situations where a motor carrier’s primary insurance coverage for some reason fails. This is not an uncommon arrangement, and courts have generally had no difficulty interpreting the word “collectible” in the context of such policies. See, e.g., Kirk v. Univ. Underwriters of Texas Ins. Co., 359 F. App’x 549, 551 (5th Cir. 2010) (concluding the word “collectable” is unambiguous and refers to situations where the primary insurer pays benefits following an accident); Hellman v. Great Am. Ins. Co., 66 Cal. App. 3d 298, 304 (Cal. Ct. App. 1977) (“The clause ‘valid and collectible insurance’ has widespread use in the insurance industry of the United States and has a well established meaning.”). Here, because Artisan paid the full policy limits of $1,000,000 on behalf of Natex in connection with the accident, the Artisan insurance was clearly “collectible.” See Kirk, 359 F. App’x at 551. It follows that the secondary coverage for Kirsch under the Brokerage Endorsement was never triggered. Liberty Mut. Ins. Co. v. Harco Nat. Ins. Co., 990 F. Supp. 2d 194, 206 (D. Conn. 2013) (“The Liberty policy was collectible and, in fact, was collected. The Harco policy, therefore, did not provide primary or excess coverage as related to the Lease Agreement.”).

In arguing otherwise, the Creagan Plaintiffs focus on the words “insurance you require” that come immediately before “is not collectible” in Section B.1.b of the Brokerage Endorsement. The Creagan Plaintiffs argue that the “insurance you [Kirsch] require” refers to the insurance required under the Broker-Carrier Agreement. The Broker-Carrier Agreement, in turn, requires Natex, inter alia, to include Kirsch as a named insured on the Artisan policy. Because Natex did not include Kirsch as a named insured, the Creagan Plaintiffs argue that the “insurance you require” is not “collectible” as to Kirsch because Natex never obtained the “insurance you require” in the first place. Instead, Natex obtained a slightly different form of insurance.

There are at least three fatal problems with this argument. First, it gives the words “insurance you require” a strained and unnatural reading, which is impermissible under Iowa law. See Tropf v. Am. Fam. Mut. Ins. Co., 558 N.W.2d 158, 159 (Iowa 1997) (“We give policy language its plain and ordinary meaning and do not indulge in a strained or unnatural interpretation merely to find ambiguity.”). The Broker-Carrier Agreement required Natex to obtain primary insurance, and Natex indeed obtained such primary insurance. Natex therefore had the “insurance you [Kirsch] require.” The only thing Natex failed to do was name Kirsch as an additional insured. This does not mean, however, that Natex’s insurance did not exist at all, much less that the insurance “is not collectible.” Reading the words “insurance you require” to mean that insurance does not count unless it conforms to every technical requirement of the Broker-Carrier Agreement would exalt form over substance and undermine the parties’ obvious intent when they entered the Brokerage Endorsement. See Int. Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 754 (Iowa 1999) (“The controlling consideration in interpreting insurance policies is the intent of the parties.”).

Second, and relatedly, the Creagan Plaintiffs’ argument misunderstands the purpose of secondary insurance policies like the one at issue here. The Brokerage Endorsement was not intended to provide insurance coverage on top of what the Artisan policy would pay, but rather to give Kirsch contingent coverage that would apply only in the absence of a payout from the Artisan policy. The Creagan Plaintiffs’ argument, if adopted, would render the payout from the Artisan policy irrelevant simply because of Natex’s failure to include Kirsch as a named insured on that policy. This would have the effect of turning Great West’s agreement to provide secondary coverage to Kirsch into something more akin to an agreement to provide primary coverage. The Court will not distort the plain meaning of the words “insurance you require is not collectible” to turn the parties’ relationship into something other than what they agreed it would be. See Kirk, 359 F. App’x at 551 (holding that primary insurance was “collectable” even though it did not fully compensate the injured party).

Third, and lest any doubt remain, the language of Section B.3 of the Brokerage Endorsement unambiguously confirms the parties’ intent not to make Great West liable in circumstances like those present here. Section B.3 states, in relevant part: “Any amount payable under this endorsement shall be reduced by all sums paid by or on behalf of the ‘motor carrier’.” (ECF 106-17, p. 10.) This language reinforces the conclusion that when Section B.1.b talks about whether the “insurance you require” is “collectible,” it is referring to whether the motor carrier has insurance that makes a payment following an accident, irrespective of who is listed as a named insured or whether the insurance policy complies in every technical way with the provisions of the Broker-Carrier Agreement. So long as the motor carrier (Natex) has insurance (Artisan) that makes a payment ($1,000,000) in the event of an accident, the motor carrier has the “insurance you require” for purposes of Section B.1.b.

The Creagan Plaintiffs do not cite any on-point cases holding otherwise, nor was the Court able to locate any on-point cases through independent research. The Court has, however, found significant analogous authority from other jurisdictions supporting Great West’s position. For example, the Fifth Circuit held that the word “collectable” is unambiguous and refers to situations where the primary insurer pays policy limits following an accident, regardless of whether this fully compensates the injured party. Kirk, 359 F. App’x at 551. Other courts have reached the same or similar conclusions. See e,g., Harstead v. Diamond State Ins. Co., 723 A.2d 179, 182 (Pa. 1999); Royal Globe Ins. Co. v. Hartford Acc. & Indem. Co., 485 A.2d 242, 244 (Me. 1984). These cases recognize that primary insurance is obviously “collectible” when it “in fact[] was collected.” Harco Nat. Ins. Co., 990 F. Supp. 2d at 206. The same logic squarely applies here, notwithstanding the Creagan Plaintiffs’ attempt to put a novel spin on the issue by focusing on whether Kirsch was a named insured under the Artisan policy.

Great West Is Also Entitled to Summary Judgment Based on the Offset Provision in Section B.3 of the Brokerage Endorsement.

The language of Section B.3 of the Brokerage Endorsement also serves as a standalone reason to reject the Creagan Plaintiffs’ position that Great West is liable under the policy. Even if the Court were to adopt their position on what “insurance you require” means under Section B.1.b, the Court still would have to give effect to the last sentence of Section B.3, which states that “[a]ny amount payable under this endorsement shall be reduced by all sums paid by or on behalf of the ‘motor carrier’.” This language is unambiguous, and it means there is a dollar-for-dollar offset in Great West’s favor for the $999,847.12 that Artisan indisputably paid on behalf of Natex. As Great West has a $1,000,000 policy limit under the Brokerage Endorsement, this dollar-for-dollar offset leaves nothing more for Kirsch to recover except possibly $152.88 if the tiny discrepancy in the record is resolved in Kirsch’s favor.

The Creagan Plaintiffs’ complicated argument to the contrary is not persuasive. They argue that the words “payable under this endorsement” require the reader to refer back to the overarching coverage language found in the section of the Great West policy entitled, “Commercial Auto Coverage Part – Iowa Motor Carrier Coverage Form” (hereinafter, “Iowa Motor Carrier Coverage Form”). This section states, inter alia, that Great West “will pay all sums an ‘insured’ legally must pay as damages ” (ECF 106-17, p. 49.) The Creagan Plaintiffs argue that because the “insured” is Kirsch, the obligation imposed on Great West under the Iowa Motor Carrier Coverage Form is to pay the damages that Kirsch must pay. When, as here, there is a judgment against Kirsch in the amount of $10,347,944.95, the Creagan Plaintiffs argue that the dollar-for-dollar offset in Section B.3 simply reduces Great West’s obligation to $9,347,944.95, not $0. As this is well above policy limits, the Creagan Plaintiffs admit Great West is not required to pay the full amount; nonetheless, they argue Great West must pay the full policy limits of $1,000,000.

The Creagan Plaintiffs’ argument fails at the outset because it does not make sense to interpret the words “payable under this endorsement” to mean “payable under the Iowa Motor Carrier Coverage Form.” Even if the Court concluded otherwise, however, it would not make Great West liable under the policy. True, the Creagan Plaintiffs eventually obtained a judgment against Kirsch in the amount of $10,347,944.95, but it is undisputed that this judgment was for Kirsch’s direct negligence in hiring an unsuitable motor carrier and driver. Great West’s coverage obligation under Section A of the Iowa Motor Carrier Coverage Form only applies, however, to “damages . . . resulting from the ownership, maintenance, or use of a covered ‘auto’.” (Id.) Damages for negligent hiring result from negligent hiring, not from the “ownership, maintenance, or use of a covered ‘auto’.” Thus, to the extent the covering language of the Iowa Motor Carrier Coverage Form is determinative, there would be no coverage in the circumstances presented here.

In any event, the covering language of the Iowa Motor Carrier Coverage Form is not determinative because it defines Great West’s coverage obligations generally, as modified by the specific language of the Brokerage Endorsement. See Sioux City Country Club v. Cincinnati Ins. Co., No. C03-4071-PAZ, 2004 WL 1559705, at *5 (N.D. Iowa June 22, 2004) (“Iowa follows the general rule in contract interpretation that when a contract contains both general and specific provisions on a particular issue, the specific provisions are controlling . . . An insurance policy is a contract that is subject to the general rules of contract analysis.” (internal punctuation and citations omitted)). To that end, there is capitalized and bolded language at the top of the Brokerage Endorsement stating, “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” (ECF 106-17, p. 9.) It follows that the determinative coverage language is not found in the Iowa Motor Carrier Coverage Form, but rather Section B.1 of the Brokerage Endorsement. As the Court already explained above, Section B.1 does not provide coverage at all when, as here, the Artisan policy was “collectible” and indeed was collected when Artisan exhausted the $1,000,000 policy limits in the Ohio interpleader action (minus, at most, $152.88). Moreover, even if Section B.1 provided coverage, it would be subject to the dollar-for-dollar offset for the Artisan payments anyway pursuant to Section B.3 because those payments were made “on behalf of the ‘motor carrier’ [Natex].”

V. Conclusion.

The Creagan Plaintiffs’ position fails at two levels. First, Great West’s obligation under the Brokerage Endorsement was never triggered because the “insurance you [Kirsch] require” was “collectible” and indeed was collected when Artisan exhausted its policy limits in the Ohio interpleader action. Second, even if the Artisan policy was not the “insurance you require,” Great West would be entitled to a dollar-for-dollar offset for the Artisan payments anyway pursuant to Section B.3 because those payments were made “on behalf of the ‘motor carrier’ [Natex].” The Court therefore GRANTS Great West’s Motion for Summary Judgment (ECF 106) and DENIES the Creagan Plaintiffs’ Motion for Summary Judgment (ECF 107). The Clerk of Court is directed to enter judgment in favor of Great West and against Kirsch and the Creagan Plaintiffs.

In granting summary judgment for Great West, the Court has not overlooked the possible discrepancy of $152.88 in the amount paid by Artisan. The Court simply concludes that this discrepancy does not preclude the entry of summary judgment because: (a) it appears to be the result of a mathematical anomaly or rounding error, which is not enough in these circumstances to create a genuine issue of disputed fact as to the accuracy of the testimony from the Artisan corporate representative that “the million dollars was — was paid out”; and (b) even if Artisan really did pay only $999,847.88, no reasonable factfinder could conclude that the remaining $152.88 was not also “collectible” for purposes of Section B.1.b of the Brokerage Endorsement had someone noticed the shortfall. The Court therefore grants summary judgment for Great West on the $152.88 discrepancy just as it does in all other respects.

IT IS SO ORDERED.

Dated: November 7, 2023

STEPHEN H. LOCHER

U.S. DISTRICT JUDGE

Footnotes

The Creagan Plaintiffs argue that the first coverage action is also relevant because it shows that Great West should be judicially estopped from raising one of the arguments on which Great West relies here. (ECF 117, pp. 13–15.) The Court disagrees. Because the first coverage case involved a different policy with different provisions, judicial estoppel does not apply. Moreover, Great West’s other arguments would entitle it to summary judgment anyway, and thus the issue of judicial estoppel is immaterial to the outcome.