United States District Court,

1. Nebraska.

CERTAIN UNDERWRITERS AT LLOYD’S and Those Companies Severally Subscribing to Boeing Policy Number MARCW150053 and Related Policies Governing the Cargo, Plaintiffs,

v.

SOUTHERN PRIDE TRUCKING, INC., et al., Defendants.

8:16-CV-116

|

Signed 09/27/2017

Attorneys and Law Firms

Brandon J. Crainer, Mark C. Laughlin, Fraser, Stryker Law Firm, Omaha, NE, Carlotta Cassidy, David T. Maloof, Thomas M. Eagan, Maloof, Browne Law Firm, Rye, NY, for Plaintiffs.

Darin W. Flagg, Murchison, Cumming Law Firm, Irvine, CA, Jennifer D. Tricker, Baird, Holm Law Firm, Robert D. Mullin, Jr., McGrath, North Law Firm, Omaha, NE, Richard C. Moreno, Steven J. McEvoy, Murchison, Cumming Law Firm, Los Angeles, CA, Collin D. Woodward, John A. Masters, Langhenry, Gillen Law Firm, Chicago, IL, Troy A. Lundquist, Langhenry, Gillen Law Firm, Joliet, IL, Beata Shapiro, Wilson, Elser Law Firm, Boston, MA, Brian Del Gatto, Wilson, Elser Law Firm, Stamford, CT, for Defendants.

 

 

MEMORANDUM AND ORDER

John M. Gerrard, United States District Judge

*1 This dispute involves an accident between two tractor trailers on Interstate 80 near Wood River, Nebraska. The accident resulted in significant damage to a Boeing airplane engine, which has led to this multi-party dispute. Specifically, Boeing’s insurers, “Certain Underwriters at Lloyd’s and Those Companies Severally Subscribing to Boeing Policy Number MARCW150053 and Related Policies Governing The Cargo” (collectively, “Certain Underwriters”), are suing four entities which, they claim, caused or contributed to the accident: Southern Pride Trucking, Thunder Rolls Express, Bauer Built, and Road Star Carrier.

 

Several motions for summary judgment are currently before the Court—each raising complex issues of law and fact. The Court has spent significant time reviewing those motions, and is fully aware of the parties’ arguments with respect to each pending request. But as discussed in more detail below, the Court cannot, at least at this stage of the proceedings, resolve those disputes on the merits. Indeed, none of the defendants have answered the plaintiffs’ amended complaint, and each of the pending motions responds to, or otherwise relies on, pleadings that are no longer operative in this case. So, the Court will deny the pending motions for summary judgment without prejudice to reassertion. The Magistrate Judge shall promptly confer with the parties and set an amended progression order consistent with this Memorandum and Order.

 

 

BACKGROUND

The facts of this case, generally summarized, are as follows. Southern Pride, a trucking company, agreed to transport a Boeing airline engine from Ohio to Washington. Filing 115 at 3-4. Rather than using its own fleet of tractor trailers, Southern Pride subcontracted the job to defendant Thunder Rolls, a trucking company based in Indiana. Filing 115 at 3. Joseph Womack, Thunder Rolls’ owner and sole proprietor, picked up the engine from a General Electric plant in Ohio. After loading the engine onto his trailer, Womack set out for Everett, Washington. See filing 124-1 at 6. Womack’s route took him through Wood River, Nebraska, as he headed west on Interstate 80. Filing 117 at 8.

 

Approximately an hour and a half before Womack reached Wood River, a different westbound tractor trailer had pulled over to the side of Interstate 80 with a flat tire. Filing 117 at 10; filing 118-4 at 5. That tractor trailer was owned by defendant Road Star. Filing 118-4 at 5. Road Star contacted defendant Bauer Built, which provides roadside assistance to the interstate trucking industry. Soon after, a Bauer employee arrived to replace the tire. Filing 117 at 12. Both were still there as Womack approached.

 

Womack, driving in the right lane, was approximately 100 feet away from Road Star’s disabled truck when he first saw it on the side of the road directly ahead of him. Filing 118-2 at 17. Womack attempted to move into the left lane to avoid any potential contact with the vehicles. Filing 118-2 at 9. But as he began to move over, Womack noticed a pickup truck in his side-view mirror. Filing 124-1 at 40. So, Womack “came back to the right to get [to the] center of [his] lane.” Filing 124-1 at 40. Womack collided with Road Star’s truck. The airplane engine dislodged from Womack’s trailer, landing on the road. See filing 124-1 at 11. According to Certain Underwriters, the engine is no longer functional, resulting in approximately $18,000,000 in damages. Filing 115 at 6. Certain Underwriters allege various theories of liability against the defendants under both state and federal law. Each defendant has moved for summary judgment.

 

 

DISCUSSION

*2 The procedural history of this case is straightforward: the plaintiffs filed a complaint, the defendants answered with counterclaims, and parties began moving for summary judgment. But on January 26, 2016, while three motions for summary judgment were pending, Certain Underwriters—with leave from the Magistrate Judge—filed an amended complaint. See filing 115. And that complaint includes substantive changes to Certain Underwriters’ theories of recovery. In particular, Certain Underwriters added a claim against Bauer and Road Star, and removed Thunder Rolls from their first claim for relief, which alleges a violation of the Carmack Amendment of the Interstate Commerce Act, 49 U.S.C. § 13101 et seq. Compare filing 1 with filing 115.

 

The amended complaint also had procedural implications. As the Eighth Circuit has recognized, an amended complaint supersedes an original complaint and renders the original complaint without legal effect. In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005). So, when an amended complaint has been filed, a defendant generally has 14 days to file an amended answer. See Fed. R. Civ. P. 15(a)(3). As noted, once an amended pleading is interposed, “the original pleading no longer performs any function in the case[.]” Charles A. Wright & Arthur Miller, 6 Federal Practice & Procedure § 1476 (3d ed. 2017).

 

None of the four defendants in this case have filed answers to Certain Underwriters’ amended complaint. And that oversight is not insignificant. Indeed, each of the pending motions for summary judgment are premised, in whole or in part, on an affirmative defense or counterclaim. For example, defendants Southern Pride and Thunder Rolls have moved for partial summary judgment, seeking the enforcement of a $250,000 limitation on liability “pursuant to [their] eleventh affirmative defense[.]” Filing 90 at 1. Those defendants also seek judgment on Bauer and Road Star’s cross-claims, arguing that they are preempted under the Carmack Amendment. Filing 90 at 2. Similarly, Bauer moves for summary judgment on its third affirmative defense, filing 57 at 6, arguing that Thunder Rolls’ driver was the sole proximate cause of the accident. Filing 123 at 18. And defendant Road Star, relying on its seventh affirmative defense, makes the same argument—claiming that “intervening” and “superseding” forces proximately caused the plaintiffs’ losses. Filing 47 at 8.

 

But as noted above, those arguments derive from previously filed—and now legally inoperative—pleadings. Thus, to renew those arguments, the defendants must, pursuant to Fed. R. Civ. P. 15, file an amended answer. “No option is given to merely stand on preexisting pleadings made in response to an earlier complaint.” Bremer Bank, Nat. Ass’n v. John Hancock Life Ins. Co., 2009 WL 702009, at *12 (D. Minn. 2009); see General Mills, Inc. v. Kraft Foods Global, Inc., 495 F.3d 1378, 1381 (8th Cir. 2007) (previously asserted counterclaims are “no longer … pending” upon the filing of an amended complaint). Until such answers are filed, the Court cannot, and will not, address the merits of the parties’ dispositive motions.

 

And there’s another problem: as alluded to above, three of the five parties moved for summary judgment before Certain Underwriters had filed their amended complaint. See filing 90; filing 111. As a result, those motions and accompanying briefs are not fully responsive to the claims currently before the Court. For instance, defendant Thunder Rolls argues that, as a Carmack defendant, it is protected by a $250,000 limitation on liability pursuant to the Carmack Amendment. See filing 90 at 1. But pursuant to the amended complaint, Certain Underwriters are no longer pursuing their Carmack claim against Thunder Rolls, suing Thunder Rolls instead for breach of contract, breach of bailment obligations, and negligence. Filing 115 at 7-9. And it is not entirely clear how, if at all, that change affects Thunder Rolls’ position. Similarly, Bauer and Road Star refer to defendant Thunder Rolls in their briefing as being sued “under the Carmack Amendment.” See filing 123 at 37. But again, under the amended complaint, it is not. See filing 115 at 7.

 

*3 To be clear: the Court is in no way suggesting that the parties should alter their position or arguments based on the amended complaint. Rather, the Court is advising the parties to directly address how, if at all, Certain Underwriters’ amended allegations affect their respective positions on summary judgment.

 

As a final matter, the Court acknowledges Bauer’s ongoing disagreement with the Magistrate Judge’s order permitting Certain Underwriters to amend their complaint. See filing 99; filing 123 at 6 n.1. But that is a moot point. Under the local rules, a party may object to a Magistrate Judge’s order in a nondispositive matter within 14 days of service. NECivR 72.2(a). Bauer did not object here, nor did it ask the Magistrate Judge to reconsider her decision. That decision is water under the bridge, and will not be revisited, in any form, by this Court.

 

 

CONCLUSION

To reiterate, the Court has expended significant time reviewing the parties’ evidence and argument, and will promptly resolve the parties’ motions, should they be refiled, upon proper compliance with the Federal Rules. To that end, the Magistrate Judge shall confer with the parties and set an amended progression order consistent with this Memorandum and Order. In the meantime, the parties’ pending motions for summary judgment will be denied without prejudice to reassertion.

 

IT IS ORDERED:

1. Southern Pride Trucking and Thunder Roll Express’s joint motion for partial summary judgment (filing 90) is denied without prejudice to reassertion.
2. Certain Underwriters’ partial motion for summary judgment as to Bauer Built and Road Star Carrier (filing 111) is denied without prejudice to reassertion.
3. Road Star Carrier’s motion for summary judgment (filing 116) is denied without prejudice to reassertion.
4. Bauer Built’s motion for summary judgment (filing 122) is denied without prejudice to reassertion.
5. Bauer Built’s motion for oral argument (filing 125) is denied without prejudice to reassertion.
6. Certain Underwriters’ motion to amend their motion for summary judgment (filing 146) is denied as moot.
7. Certain Underwriters’ motion for leave to file supplemental legal authority (filing 154) is denied as moot.
8. This case is referred to the Magistrate Judge for case progression. The Magistrate Judge shall promptly confer with the parties to set an amended progression order consistent with this Memorandum and Order.

United States District Court,

M.D. Florida.

NATIONAL INDEPENDENT TRUCKERS INSURANCE COMPANY, RRG, Plaintiff,

v.

WILNER MATHIEU d/b/a MATHIEU EXPRESS, et al., Defendants.

Case No. 8:16-cv-3081-T-27TGW

|

Filed 10/20/2017

 

 

ORDER

JAMES D. WHITTEMORE United States District Judge

*1 BEFORE THE COURT is National Independent Truckers Insurance Company’s Motion for Summary Judgment (Dkt. 52), which Alene Desir and Wilner Mathieu d/b/a Mathieu Express oppose (Dkts. 54, 76).1 Upon consideration, the Motion is GRANTED.

 

 

1. Undisputed Material Facts

The evidence in this declaratory judgment action is undisputed.2 Plaintiff issued a commercial motor vehicle insurance policy to Wilner Mathieu d/b/a Mathieu Express (“Mathieu”) applicable for the period of November 18, 2013 to November 18, 2014. (Dkt. 66 at 5). Two drivers, Wilner Mathieu and Jean E. Moise, were reported drivers on the policy. (Dkt. 66 at 11).

 

On December 27, 2013, Wilbert Sanon, an unreported driver, was driving a Mathieu owned tractor-trailer rig when he was involved in an automobile accident with a vehicle operated by Arisner Agenor in which Alene Desir was a passenger. (Dkt. 51 ¶ 1; Dkt. 66 at 11). At the time of the accident, Sanon was delivering a load from Kissimmee, Florida to Pompano Beach, Florida. (Dkt. 51 ¶ 2). This shipment of nonhazardous material was entirely within the State of Florida. (Dkt. 51 ¶ 2). And, on the date of the accident, Sanon did not drive a tractor-trailer assembly outside of the State of Florida. (Dkt. 51 ¶ 2). The weight of the tractor-trailer rig exceeded 10,000 pounds. (Dkt. 51 ¶ 3). And, the gross vehicle weight was 80,000 pounds. (Dkt. 66 at 9).

 

The policy’s Unreported Driver Coverage Endorsement provides:

The limit of insurance provided by this policy with respect to any accident involving an unreported driver to which this insurance applies, including any accident with an uninsured or underinsured vehicle, shall be the minimum liability insurance coverage required under the Motor Vehicle Compulsory or Financial Responsibility Laws of the State having jurisdiction with respect to the issuance of this policy or the State in which the accident occurred if the law of that State requires that its motor vehicle Financial Responsibility Laws must be applied to the accident.

(Dkt. 68 at 3).3

 

 

1. Standard

Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine factual dispute exists only if a reasonable fact-finder ‘could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

 

*2 The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party fails to demonstrate the absence of a genuine dispute, the motion should be denied. Kernel Records, 694 F.3d at 1300 (citation omitted). On the other hand, [i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.” ‘ Lima v. Fla. Dep’t of Children & Families, 627 F. App’x 782, 785-86 (11th Cir. 2015) (quoting Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994)).

 

 

III. Discussion

Plaintiff contends that the undisputed evidence shows that Sanon was transporting nonhazardous materials in intrastate commerce at the time of the accident. And pursuant to the Unreported Driver Coverage Endorsement, the minimum limits of insurance, $300,000, under Fla. Stat. § 627.7415 apply, rather than the minimum limits of insurance, $750,000, under 49 C.F.R. § 387.9. Rather than rebutting Plaintiff’s evidence, Desir speculates that the tractor-trailer “was engaged in foreign and interstate commerce” and therefore the minimum limits of $750,000 apply.4 Desir’s position is unsupported and does not create a genuine issue of material fact.

 

The Motor Carrier Act of 1980 addresses financial responsibility for trucking accidents. 49 U.S.C. § 13906(a); see Nat’l Specialty Ins. Co. v. Martin-Vegue, 644 F. App’x 900, 906 (11th Cir. 2016). It applies, with exceptions, to “for-hire motor carriers operating motor vehicles transporting property in interstate or foreign commerce” and “to motor carriers operating motor vehicles transporting hazardous materials, hazardous substances, or hazardous wastes in interstate, foreign, or intrastate commerce.” 49 C.F.R. § 387.3. And, it requires motor carriers registered to engage in interstate commerce to carry a minimum amount of insurance.5 49 U.S.C. § 13906(a); Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 873-74 (10th Cir. 2009); Martin-Vegue, 644 F. App’x at 906.

 

*3 The majority of courts considering whether the financial responsibility requirements of the MCA apply initially determine the nature of the transport “at the time of the accident.” See Martin-Vegue, 644 F. App’x at 907 (“the relevant question is whether Freight was the for-hire motor carrier… at the time of the accident”); Herrod v. Wilshire Ins. Co., 499 F. App’x 753, 760 (10th Cir. 2012) (remanded to determine whether driver was acting as “for-hire” at the time of the accident); Canal Ins. Co. v. Coleman, 625 F.3d 244, 251 (5th Cir. 2010) (recognizing that the “at the time of the accident” analysis is the majority approach)6.

 

Rather than disputing the nature of the transport at the time of the accident, Desir conclusively argues that the MCA applies because the “rig was intended to travel outside of Florida and possessed the necessary, federally mandated insurance minimums to conduct such interstate business.” (Dkt. 54 at 3). Desir fails to point to any evidence to support her position.7 It is undisputed that at the time of the accident, Sanon was transporting nonhazardous property in intrastate commerce. (Dkt. 51 at 3). Therefore, the financial responsibility requirements of the MCA do not apply. See Martin-Vegue, 644 F. App’x at 907; Herrod, 499 F. App’x at 760; Canal, 625 F.3d at 249.

 

*4 The Unreported Driver Coverage Endorsement provides that the limit of insurance for accidents involving an unreported driver “shall be the minimum liability insurance coverage required under the Motor Vehicle Compulsory or Financial Responsibility Laws of the State having jurisdiction with respect to the issuance of this policy or the State in which the accident occurred if the law of that State requires that its motor vehicle Financial Responsibility Laws must be applied to the accident.”8 (Dkt. 68 at 3) (emphasis added). The plain, unambiguous meaning of the Unreported Driver Coverage Endorsement is that Florida’s financial responsibility laws applies. See Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005) (unambiguous insurance contracts construed according to their plain meaning).

 

Under Fla. Stat. § 627.7415(3), the minimum level of combined bodily liability insurance and property damage liability insurance for a commercial vehicle with a gross vehicle weight of 44,000 pounds or more is $300,000. Therefore, because Sanon was an unreported driver on the policy and the Wilner owned tractor-trailer’s gross vehicle weight was 80,000 pounds, the minimum level of combined bodily liability insurance and property damage liability insurance available under the policy for the accident on December 27, 2013 is $300,000. Fla. Stat. § 627.7415(3); Taurus Holdings, 913 So. 2d at 532.

 

Accordingly, National Independent Truckers Insurance Company’s Motion for Summary Judgment is GRANTED. The Clerk is directed to ENTER FINAL JUDGMENT in favor of Plaintiff and CLOSE the file.

 

DONE AND ORDERED this 19th day of October, 2017.

 

All Citations

Slip Copy, 2017 WL 4785455

 

 

Footnotes

1

Arisner Agenor did not respond. Wilbert Sanon was dismissed without prejudice. (Dkt. 36). Default final judgment was entered against Yvonie Agenor and Mathieu Express, LLC. (Dkts. 50, 64).

2

Plaintiff, Desir, and A. Agenor filed a Joint Stipulation to Certain Facts. (Dkt. 51).

3

The complete policy was filed in accordance with this Court’s Order. (Dkts. 63, 66-68).

4

Mathieu adopts Desir’s response. (Dkt. 76 at 1). Additionally, Mathieu argues, without support, that Plaintiff is not authorized to do business in Florida and that the insurance policy and endorsements may not comply with Florida law. (Dkt. 68). Without more, Mathieu’s argument lacks merit.

5

Compliance with the MCA minimum insurance requirements can be shown in one of three ways: (1) the MCS-90 endorsement (2) a surety bond, or (3) self-insurance authorization from the Federal Motor Carrier Safety Administration. Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 873-74 (10th Cir. 2009) (citing 49 C.F.R. § 387.7(d)(1)-(3); see Canal Ins. Co. v. Distrib. Servs., Inc., 320 F.3d 488, 489 (4th Cir. 2003)). The MCS-90 endorsement “creates a suretyship, which obligates an insurer to pay certain judgments against the insured arising from interstate commerce activities, even though the insurance contract would have otherwise excluded coverage.” Canal Ins. Co v. Coleman, 625 F.3d 244, 247 (5th Cir. 2010) (citing Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460, 470 (5th Cir.2005)); see Martin-Vegue, 644 F. App’x at 907 (recognizing a majority of courts treat the MCS-90 endorsement as a suretyship). The complete policy filed by Plaintiff does not contain the MCS-90 endorsement. (Dkts. 66-68). Although Desir contends Mathieu possessed the MCS-90 endorsement (Dkt. 54 at 6), it is not part ofthe record. Fed. R. Civ. P. 56(c)(1)(A). Notwithstanding, the MCS-90 endorsement is immaterial.

6

(citing e.g., Century Indem. Co. v. Carlson, 133 F.3d 591, 595 (8th Cir. 1998) (agreeing with “the determination that the grain in question in this case at the time of the accident traveled in interstate commerce” (emphasis added)); Canal Ins. Co. v. J. Perchak Trucking, Inc., 3:CV-07-2272, 2009 WL 959596, at *2 (M.D.Pa. Apr. 6,2009) (denying summary judgment because “[c]onsideration ofthe important issues presented in this case should be made only in the context of a concrete determination as to whether the insured’s vehicle was involved in interstate or intrastate commerce at the time of the accident” (emphasis added)); Canal Ins. Co. v. Paul Cox Trucking, 1:05-CV-2194 2006 WL 2828755, at *4 (M.D.Pa. Oct. 2, 2006) (holding that a federal court has jurisdiction over the question of whether truck was “engaged in interstate commerce at the time of the accident” (emphasis added)); Kolencik v. Progressive Preferred Ins. Co., 1:04- CV-3507,2006 WL 738715, at *7 (N.D.Ga. Mar. 17, 2006) (“Based on the foregoing, the court concludes that endorsement MCS-90 plays no role in the instant accident because it involved only intrastate commerce from Cartersville, Georgia to Acworth, Georgia with no intention of the dirt ever going beyond Acworth.”); Branson v.MGA Ins Co., 673 So 2d 89 (Fl.Dist.Ct.App. 1996) (declining to apply the MCS-90 to purely intrastate transportation); Gen. Sec. Ins. Co. v. Barrentine, 829 So.2d 980, 984 (Fl.Dist.Ct.App.2002) (“The issue is not whether a truck might be used for an interstate shipment in the future. That much could be said of nearly any tractor-trailer rig. Rather, is whether the injury in question occurred while the truck was operating in interstate commerces (emphasis added)). But see, e.g, Royal Indent. Co. v. Jacobsen, 863 F.Supp. 1537, 1541 (D.Utah 1994) (“In the court’s view, Royal’s ‘trip specific’ reading of the Holdens’ ICC endorsement (or any ICC endorsement for that matter) is incorrect. ); Travelers Indent. Co. of IL v. W. Am. Specialized Tramp. Servs., Inc., 235 F.Supp.2d 522, 529-30 (W.D.La.2002) (holding that the truck’s procurement or lease agreement, rather than the circumstances of the particular loss, determine the MCS-90’s application); Reliance Nat’l Ins. v. Royal Indent. Co., 99-Civ.-10920, 2001 WL 984737, at *4-7 (S.D.N.Y. Aug. 24, 2001) (same)).

7

Indeed, Desir’s contention is the minority approach. See Coleman, 625 F.3d at 251.

8

The parties’ dispute is limited to whether federal regulations or Florida law applies.