Dzingeleski v. Allied Van Lines, Inc.
United States District Court for the Northern District of West Virginia
May 17, 2018, Decided; May 17, 2018, Filed
Civil Action No. 5:18CV2 (STAMP)

Reporter
2018 U.S. Dist. LEXIS 83249 *; 2018 WL 2275238
ELIZABETH DZINGELESKI, Plaintiff, v. ALLIED VAN LINES, INC. and JOHN FAYARD MOVING & WAREHOUSING, LLC, JOHN DOE 1 and JOHN DOE 2, Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AS TO DEFENDANT JOHN FAYARD MOVING & WAREHOUSING, LLC AND GRANTING DEFENDANTS’ MOTION TO DISMISS AS TO DEFENDANT ALLIED VAN LINES, INC. WITH LEAVE TO AMEND
I. Background
The civil action arises out of a contract for the packing and interstate transportation of the plaintiff’s household goods by the defendants from Saraland, Alabama to Wheeling, West Virginia. The plaintiff, Elizabeth Dzingeleski, originally brought this civil action in the Circuit Court of Ohio County, West Virginia, against the defendants, Allied Van Lines, Inc. (“Allied”), John Fayard Moving & Warehousing, LLC (“John Fayard”), John Doe 1, and John Doe 2. The complaint alleges that Allied’s employees, agents, and representatives loaded the plaintiff’s personal property at her Alabama residence on December 14 and 15, 2015, and that her [*2] personal property was unpacked on or after December 21, 2015. ECF No. 1-1 at 2. The complaint further alleges that the defendants negligently caused breakage and other damages and losses to the plaintiff’s personal property when they moved it off the truck and into her West Virginia residence. ECF No. 1-1 at 4. The complaint asserts causes of action for negligence, property damages, annoyance, inconvenience, loss of use, and diminution of value. ECF No. 1-1 at 3-6.
The named defendants, Allied and John Fayard, removed the civil action to this Court on the basis of federal question jurisdiction under 28 U.S.C. § 1331. The notice of removal asserts that “all causes of action on the face of the [c]omplaint allege loss or damage claims that arise out of the performance of a contract for the interstate transportation of household goods.” ECF No. 1 at 2. Thus, the defendants contend that “[t]he subject matter area, as a matter of law, is completely preempted and therefore cognizable only as a federal claim arising under federal law.” ECF No. 1 at 2. Specifically, the defendants contend that the claims arise under 49 U.S.C. § 14706, the Carmack Amendment to the Interstate Commerce Act (the “ICA”), as amended by the ICC Termination Act of 1995 (the “ICCTA”), 49 U.S.C. § 10101 et seq. ECF No. 1 [*3] at 2.
The named defendants have filed a motion to dismiss for failure to state a claim. ECF No. 3. The defendants assert that the allegations in the complaint relate to an interstate shipment over which the Secretary of Transportation and the Surface Transportation Board have jurisdiction pursuant to 49 U.S.C. § 13501. ECF No. 3 at 2. Because defendant Allied is a household goods motor carrier as defined by statute, the defendants argue that the plaintiff’s claims are governed by the Carmack Amendment, “which provides the exclusive remedy for property damage caused by a motor carrier providing transportation or service under an interstate bill of lading.” ECF No. 3 at 2 (emphasis in original). The defendants argue that, under New York, Philadelphia, & Norfolk Railroad Company v. Peninsula Produce Exchange, 240 U.S. 34, 36 S. Ct. 230, 60 L. Ed. 511 (1916), the complaint is preempted by the Carmack Amendment. ECF No. 3 at 2. Specifically, the defendants argue that the complaint “does not state the prima facie elements under the [ICA], but merely raises preempted state and/or common law causes of action.” ECF No. 3-1 at 3. Additionally, the defendants note that the United States Court of Appeals for the Fourth Circuit has held that “the Carmack Amendment goes beyond the physical act of transportation to include associated services.” ECF No. 3-1 at 5 (quoting Rush Indus. v. MWP Contractors, LLC, 539 Fed. Appx. 91, 94 (4th Cir. 2013)). The defendants further contend [*4] that, as a matter of law, defendant John Fayard “cannot be liable for any action for damages arising out of a carrier’s performance of transportation under a bill of lading.” ECF No. 3 at 3.
The plaintiff filed a response in opposition to the defendants’ motion. ECF No. 4. In her response, the plaintiff acknowledges that the allegations in her complaint “may not exactly align with the Carmack Amendment.” ECF No. 4 at 5. However, the plaintiff argues that this Court should re-characterize her claim as a federal claim under the Carmack Amendment rather than dismissing the case for failure to state a claim. ECF No. 4 at 5. The plaintiff contends that her “recovery is contingent on her ability to establish a prima facie case under the Carmack Amendment’s burden-shifting framework.” ECF No. 4 at 6.
The plaintiff does concede that defendant John Fayard may be dismissed from the civil action. ECF No. 4 at 7. In the event that this Court grants the motion to dismiss as to defendant Allied, the plaintiff requests that the dismissal be without prejudice. ECF No. 4 at 7.
The defendants did not file a reply to the plaintiff’s response in opposition. For the reasons stated below, the defendants’ motion to dismiss (ECF No. 3) is granted as to defendant [*5] John Fayard and granted with leave to amend as to defendant Allied.
II. Applicable Law
In assessing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must accept all well-pled facts contained in the complaint as true. Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009). However, “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)). This Court also declines to consider “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009). The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 1998). The Rule 12(b)(6) motion also must be distinguished from a motion for summary judgment under Federal Rule of Civil Procedure 56, which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. Id. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the party making the claim and essentially the court’s inquiry is directed to whether the allegations [*6] constitute a statement of a claim under Federal Rule of Civil Procedure 8(a). Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough facts to state a claim to relief that is plausible on is face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “Facial plausibility is established once the factual content of a complaint ‘allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Nemet Chevrolet, 591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949). Detailed factual allegations are not required, but the facts alleged must be sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
III. Discussion
Under the ICA, an interstate carrier “is liable for damage to goods transported by it.” Missouri P. R. Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964). The Carmack Amendment was passed to bring a degree of uniformity to interstate shipping. The Supreme Court noted that:
along with singleness of rate and continuity of carriage in through shipments there had grown up the practice of requiring specific stipulations limiting the liability of each separate company to its own part of the through route, and, as a result, the shipper could look to the initial carrier for recompense only ‘for loss, damage, or delay’ occurring on its own line. This ‘burdensome situation’ was ‘the matter which Congress undertook to regulate.’ And it was [*7] concluded that the requirement that interstate carriers holding themselves out as receiving packages for destinations beyond their own terminal should be compelled ‘as a condition of continuing in that traffic to obligate themselves to carry to the point of destination, using the lines of connecting carriers as their own agencies,’ was within the power of Congress.
New York, P. & N. R. Co. v. Peninsula Produce Exch. of Md., 240 U.S. 34, 37, 36 S. Ct. 230, 60 L. Ed. 511 (1916) (quoting Atl. Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 200, 203, 31 S. Ct. 164, 55 L. Ed. 167, (1911)). In passing the Carmack Amendment, “it is evident that Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had therefore been subject.” Adams Express Co. v. Croninger, 226 U.S. 491, 506, 33 S. Ct. 148, 57 L. Ed. 314 (1913). Thus, this Court finds that the plaintiff’s claims are preempted by the ICA.
A. Defendant John Fayard Moving & Warehousing, LLC
The plaintiff concedes that defendant John Fayard can be dismissed from this civil action. Under 49 U.S.C. § 13907(a), carriers are responsible for all acts or omissions of its agents. Further,
[n]ot only does the statutory language impose liability on a motor carrier for the acts and omissions of the carrier’s agent, but case law holds that the agent of a disclosed principal cannot be held liable pursuant to a duly issued bill of lading contract.
Werner v. Lawrence Transp. Sys., Inc., 52 F. Supp. 2d 567, 568 (E.D.N.C. 1998) (citation omitted); [*8] see also Olympian Worldwide Moving & Storage Inc. v. Showalter, No. CV-13-00245-PHX-NVW, 2013 U.S. Dist. LEXIS 105915, 2013 WL 3875299, at *4 (D. Ariz. July 26, 2013) (“Under the Carmack Amendment, an agent of a motor carrier has no independent liability.”). As the plaintiff does not contest the defendants’ assertion that defendant John Fayard is an agent of defendant Allied, the defendants’ motion to dismiss is granted as to defendant John Fayard.
B. Defendant Allied Van Lines, Inc.
The defendants argue that, because the complaint does not state the prima facie elements necessary for a claim under the Carmack Amendment, it must be dismissed because the state-based claims are preempted by federal law. ECF No. 3-1 at 3. To establish a prima facie case under the Carmack Amendment, the plaintiff must establish (1) delivery of the goods to the carrier in good condition, (2) arrival in damaged condition, and (3) amount of damages. See Oak Hall Cap and Gown Co., Inc. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 294 (4th Cir. 1990) (citing Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964)). If the plaintiff establishes this prima facie case, the burden shifts to the carrier to show that it was not negligent and that the damage to the goods was caused by (1) an act of God, (2) the public enemy, (3) the act of the shipper himself, (4) public authority, or (5) the inherent vice or nature of the goods. See Mo. Pac. R.R. Co., 377 U.S. at 137.
The plaintiff argues that this Court should characterize the claim as one under the Carmack Amendment because it demonstrates sufficient allegations to establish [*9] a prima facie case. ECF No. 4 at 6-7. Specifically, the plaintiff argues that, under Darcangelo v. Verizon Communications, Inc., 292 F.3d 181, 195 (4th Cir. 2002), “when a claim under state law is completely preempted . . . a federal court should not dismiss the claim, but should instead re-characterize it as a claim under applicable federal law.” ECF No. 4 at 6. The plaintiff points out the portions of her complaint which allege that all of her belongings were in good condition and repair prior to transporting and unloading; that her belongings sustained breakage and other damages and losses as a result of the move; and that the plaintiff substantially complied with all of the pre-lawsuit proof of claim forms, which contained itemized amounts of damages to the plaintiff’s belongings. ECF No. 4 at 7.
This Court finds that the present case is distinguishable from Darcangelo. The Darcangelo court was specifically dealing with claims that fall under § 502 of the Employee Retirement Income Security Act of 1974. That court held that, “when a claim under state law is completely preempted and is removed to federal court because it falls within the scope of § 502, the federal court should not dismiss the claim as preempted, but should treat it as a federal claim under § 502.” Darcangelo, 292 F.3d at 195 (emphasis [*10] added).
In the present case, this Court believes the most prudent course of action is to permit the plaintiff to clarify her request for relief. See, e.g., Miracle of Life, LLC v. N. Am. Van Lines, Inc., 368 F. Supp. 2d 494, 498 (D.S.C. 2005). In Miracle, the United States District Court for the District of South Carolina noted that the “decision to grant leave rather than recharacterize is based on the fact that the court remains unsure of the precise scope of Plaintiffs’ claims and requests for relief pursuant to the Carmack Amendment.” Id. at 499. Similarly, although “[t]he facts as alleged in Plaintiff’s Complaint are more than sufficient to demonstrate a viable cause of action under the Carmack Amendment . . . . [I]t is well within the Court’s discretion to permit Plaintiff to file an Amended Complaint, stating a proper cause of action under federal law.” MidAmerican Energy Co. v. Start Enters., Inc., 437 F. Supp. 2d 969, 973-74 (S.D. Iowa 2006). Accordingly, the defendants’ motion to dismiss is granted as to defendant Allied, but with leave for the plaintiff to amend her complaint to set forth a prima facie case within twenty-one days from the date of entry of this order.
IV. Conclusion
For the reasons stated above, it is ORDERED as follows: The defendants’ motion to dismiss for failure to state a claim (ECF No. 3) is GRANTED as to defendant John Fayard Moving & Warehousing, LLC and GRANTED WITH [*11] LEAVE TO AMEND as to defendant Allied Van Lines, Inc. The plaintiff is DIRECTED to file any amended complaint within twenty-one (21) days from the date of entry of this order.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to counsel of record herein. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment as to defendant John Fayard Moving & Warehousing, LLC.
DATED: May 17, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

Driskell v. Kenny Enters., LLC
United States District Court for the Southern District of Alabama, Northern Division
May 21, 2018, Decided; May 21, 2018, Filed
CIVIL ACTION NO. 2:17-00080-KD-B

Reporter
2018 U.S. Dist. LEXIS 85743 *
DEBRA HUNGATE DRISKELL and MENZO DRISKELL, Plaintiffs, vs. KENNY ENTERPRISES, LLC and DANIEL DAIRELL ZEIGLER, Defendants.

ORDER
This action is before the Court on the motion for partial summary judgment and supporting documents filed by Defendants Kenny Enterprises, LLC and Daniel Dairell Zeigler, the response filed by Plaintiffs Debra Hungate Driskell and Menzo Driskell, and Defendants’ reply (docs. 79, 84, 87). Upon consideration, and for the reasons set forth herein, the motion for partial summary judgment is GRANTED. Accordingly, summary judgment is entered in favor of Defendants as to the Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action. The First, Second and Ninth Causes of Action remain for trial.
I. Factual and procedural background1
This action arises from a motor vehicle accident which occurred at the intersection of Highland Avenue and Marie Foster Street in Selma, Alabama [*2] at 5:24 a.m. on July 24, 2016. Debra Hungate Driskell was the driver of a Chevrolet Silverado. Defendant Zeigler was the driver of a Peterbilt tractor to which a van type trailer was attached. The tractor and trailer were owned by An Ngoc Tran2 and leased to Defendant Kenny Enterprises, LLC.
Plaintiff Debra Driskell was stopped at a red light at the intersection. The vehicle Defendant Zeigler was driving hit the rear of Plaintiff’s vehicle. Plaintiffs assert that Zeigler either fell asleep or was distracted by his cell phone while using the GPS.
Zeigler obtained his commercial driver’s license in 2012. Zeigler underwent preemployment drug and alcohol screening that was negative for drugs or alcohol prior to going to work for Kenny Enterprises as an independent contractor in April 2016. He was working in that capacity on the date of the accident.
The Records of the Georgia Department of Drivers Services show that Zeigler had a properly issued and valid commercial driver’s license and medical certificate. He had only one traffic offense occurring in Tennessee on March 4, 2013. While working for Kenny Enterprises, Zeigler was involved in one minor accident involving property damage in a parking [*3] lot on June 15, 2016 and received one warning citation.
Zeigler testified that on the day of the accident, he inspected the tractor and trailer before beginning his trip. He found the equipment was in proper working order. There were no defects or insufficiencies in either the tractor or the trailer at the time accident.
Khanh Phuoc (Kenny) Nguyen was the owner of Kenny Enterprises. He testified that the company did not have a safety director, did not provide any safety training for its drivers, and did not have a program in place to insure compliance with the Federal Motor Carrier Safety Regulations. When hiring drivers, the company relied upon its insurance company’s background investigations instead of conducting the federally mandated background checks. The company is no longer in business.
II. Conclusions of Law
A. Standard of Review
“The court shall grant summary judgment if the movant shows that 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) (Dec. 2010). Defendants, as the parties seeking summary judgment bear “the initial burden to show the district court, by reference to materials on file, that there are no genuine [*4] issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)). In deciding whether the Defendants have met their initial burden, the Court must review the record and draw all reasonable inferences therefrom in a light most favorable to Plaintiffs, as the non-moving parties. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999).
Once the Defendants meet this responsibility, the burden shifts to Plaintiffs, as the nonmovant, to show the existence of a genuine issue of material fact that would preclude summary judgment. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “In reviewing whether the [non-movant has met the] burden, the court must stop short of weighing the evidence and making credibility determination of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ((bracketed text added). However, the [*5] Defendants would be entitled to summary judgment if Plaintiffs fail “to make a sufficient showing on an essential element of [their] case with respect to which [they have] the burden of proof.'” In re Walker, 48 F. 3d 1161, 1163 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552) (bracketed text added). Overall, the Court must “resolve all issues of material fact in favor of the [Plaintiffs], and then determine the legal question of whether [Defendants are] entitled to judgment as a matter of law under that version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003)) (bracketed text added).
However, the mere existence of any factual dispute will not automatically necessitate denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004). “An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).
B. Analysis
1. The Third, Fourth, Seventh, and Eighth Causes of Action
Plaintiffs concede that Defendants have demonstrated entitlement to summary judgment as to these four Causes of Action (doc. 84, p. 13). Accordingly, [*6] summary judgment is GRANTED in favor of Defendants as to the Third, Fourth, Seventh and Eighth Causes of Action.
2. The Fifth and Sixth Causes of Action
On motion for summary judgment, Defendants argues that the Fifth and Sixth Causes of Action contain allegations of negligent or wanton, hiring, training, supervision and retention of Zeigler. Defendants argues that in order to support these causes of action, Plaintiffs must show that Kenny Enterprises knew that Zeigler was an incompetent driver, or upon the exercise of due and proper diligence (ordinary care), could have found out that Zeigler was an incompetent driver (doc. 79, p. 9-10). Defendants argues that since there was no evidence that Zeigler was incompetent, summary judgment should be granted in their favor.
In response, Plaintiffs concede that Defendants have demonstrated entitlement to summary judgment as to the allegations in subparagraphs (a) through (e) in the Fifth and Sixth Causes of Action (doc. 84, p. 13). Accordingly, summary judgment is GRANTED in favor of Defendants as to those allegations.
However, Plaintiffs argue that subparagraphs (f) through (j) do not raise these allegations. Instead, these subparagraphs are [*7] “claims of negligence or wantonness against Kenny Enterprises” for failure to meet the standard of care for a motor carrier (doc. 84, p. 10, 14). Specifically, the “complete failure to take any steps to run a safe trucking company.” (Id., p. 10).3 Plaintiffs argue this failure was a contributing cause of the accident and that Kenny Enterprises is liable to Plaintiffs (Id.).
Subparagraph (f) through (j) set forth as follows:
(f) negligently /wantonly failing to establish and enforce adequate rules, regulations, policies and procedures to ensure the safe operation of vehicles;
(g) negligently /wantonly failing to institute an adequate safety program for all drivers of commercial motor vehicles utilized by these Defendants;
(h) negligently / wantonly failing to institute a training program for all drivers of commercial motor vehicles utilized by these Defendants;
(i) negligently / wantonly failing to put in place a preventative accident program for all drivers of commercial motor vehicles utilized by these Defendants;
(j) negligently / wantonly failing to train, educate and/or instruct Daniel Dairell Zeigler and/or Defendants 1-10; 81-90 regarding Federal Motor Carrier Safety Administration regulations [*8] and/or other applicable rules, regulations and standards and negligently / wantonly failing to require these Defendants to adhere to these regulations and standards.
(Doc. 49, p. 12, 14).
Plaintiffs argue that these subparagraphs allege direct actions against Kenny Enterprises for negligently and wantonly breaching the standard of care of a motor carrier operator, i.e., “failure to institute a safety program and to enforce the Federal Motor Carrier Safety Regulations”, and that this breach was a “contributing cause” of the accident (doc. 84, p. 10, 14). They argue that Defendants ignored these allegations in their motion for summary judgment, and therefore did not show the absence of a genuine issue of material fact as to whether Kenny Enterprises was negligent or wanton for failing to meet the standard of care, and summary judgment should be denied (doc. 84, p. 10-11. 13-14).
Defendants reply with two arguments. First, they argue that a plain reading shows that subparagraphs (f) through (j) allege negligent or wanton hiring, training, supervision, and retention of Zeigler even though those words may not have been used in each subparagraph. They argue that to survive summary judgment [*9] as to these allegations, as with the allegations in subparagraphs (a) through (e), Plaintiffs must put forth substantial evidence that Zeigler was incompetent (doc. 87, p. 3-9). Defendants argue that since there is no such evidence, there is no genuine dispute of material fact as to this element of Plaintiffs’ claims, and they cannot establish that Kenny Enterprises is liable for negligent or wanton hiring, retention, training, and supervision. (Id.)
In support, Defendants cite to Maendele v. Rhett Butler Trucking, Inc., 2005 U.S. Dist. LEXIS 15520, 2005 WL 1367202 (M.D. Ala. June 8, 2005). The district court found that “as articulated” and as elaborated upon in opposition to the summary judgment motion, plaintiff’s allegation that defendant “negligently failed to exercise the degree of care that a reasonable and prudent businessperson would have exercised under similar circumstance” was “best characterized as a negligent supervision claim.” 2005 U.S. Dist. LEXIS 15520, [WL] at *5. The district court explained that “it is a claim that Rhett Butler Trucking negligently supervised Crowell’s driving and failed to realize that Crowell was violating federal regulations.” Id. Similarly, in Britt v. USA Truck, Inc., plaintiff referred to “Count V, … as a [negligence] claim that USA Truck ‘failed to enforce’ federal statutes and regulations.” [*10] 2007 U.S. Dist. LEXIS 94164, 2007 WL 4554027, *2 (M.D. Ala. Dec. 20, 2007). Citing Maendele, the district court addressed this as a claim for negligent supervision. 2007 U.S. Dist. LEXIS 94164, [WL] at *4, n.9. Additionally, the district court noted that the plaintiff had not “cited any opinion in which an Alabama court expressly has recognized such a claim, and the court is aware of none.” Id.
The Court finds these cases persuasive. The allegations in subparagraphs (f) through (j) are properly considered as allegations of negligent or wanton training, supervision and retention of Zeigler, and therefore, summary judgment is due to be granted in favor of Defendants because Plaintiffs have failed to show a genuine issue of material fact as to whether Zeigler was incompetent. See Jones Exp., Inc. v. Jackson, 86 So. 3d 298, 305 (Ala. 2010) (“[I]mplicit in the tort of negligent hiring, retention, training, and supervision is the concept that, as a consequence of the employee’s incompetence, the employee committed some sort of act, wrongdoing, or tort that caused the plaintiff’s injury.”) (citations omitted).
Second, Defendants argue that if Plaintiffs have alleged “negligence and wantonness completely unrelated to Zeigler’s competency, then the claims are due to be dismissed [because] Plaintiffs cannot prove such negligence or wantonness proximately caused the accident” [*11] (doc. 87, p. 5-6). With regard to causation, Plaintiffs argued in their response that the accident was caused by Zeigler’s failure to abide by the FMCSRs and rules of the road, and that there is “substantial evidence” to support a jury’s finding that Kenny Enterprises’ “failure to meet the standard of care [institute a safety program and enforce the FMCSRs] was a contributing cause of the accident” and render it liable (doc. 84, p. 14).4
In support, Plaintiffs cite to Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317 (Ala. 1984). In Osborne, among other allegations, the plaintiffs alleged that violating the Alabama rules of the road constituted negligence per se. The plaintiffs also alleged and offered proof that the truck driver violated the federal regulations and had done so with Osborne’s knowledge and approval.5 Id. at 1325. On appeal, defendants argued that the trial court improperly instructed the jury by reading portions of the Federal Motor Carrier Safety Regulations6 immediately following the Alabama rules of the road instruction. Id. They argued that by doing so, the jury could have been misled into “believing that violation of the federal regulations constituted negligence per se”, the same as a violation of the Alabama rules of the road. Id.
The [*12] Alabama Supreme Court found that the trial court did not improperly instruct the jury. Id. at 1326. Relevant to this action, the Court found that “an instruction that the jury could consider the Motor Carrier Safety Regulations in determining defendants’ standard of care would have been appropriate[.]” Id. at 1326.
From this decision, Plaintiffs argue that “[u]nder Alabama law, the Federal Motor Carrier Safety Regulations determine the standard of care that should be met by a motor carrier such as Kenny Enterprises”, and that the evidence shows that Kenny Enterprises failed to meet the standard of care by failing to institute a safety program and failing to enforce the FMCSRs. They assert that this failure was a contributing cause to the accident (doc. 84, p. 14).
Plaintiffs have alleged causes of action for negligence and wantonness against the Defendants. Under Alabama law,
To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. . . . To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful [*13] act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains.
Hilyer v. Fortier, 227 So. 3d 13, 22 (Ala. 2017) (citations omitted).
Plaintiffs may be correct to argue that breach or omission of a duty may be determined by consideration of the applicable standard of care. See Lohr v. Zehner, 2014 U.S. Dist. LEXIS 85772, 2014 WL 2832192, at *3 (M.D. Ala. June 23, 2014) (“Alabama law does not recognize a negligence-per-se cause of action based on the Federal Motor Carrier Safety Regulations, but such regulations may be considered by a jury to determine whether a defendant exercised appropriate care for the situation.”) (citing Osborne Truck Lines, 454 So. 2d at 1326). However, both negligence and wantonness require proof of proximate causation. Hilyer, 227 So. 3d at 22. Plaintiffs assert that if Kenny Enterprises had trained Zeigler with respect to the FMCSRs regarding driver fatigue and restricting the use of hand-held devices and had had a compliance officer to enforce the FMCSRs, then he would not have violated these regulations, and the accident would not have occurred. Although the Court must consider all evidence in the light most favorable to the Plaintiffs as the non-moving parties, there is no evidence that the absence of a safety program or a compliance officer to enforce compliance with the FMCSRs was [*14] a proximate cause of the accident. Nothing before the Court indicates that Zeigler was unaware of these regulations or that awareness of the regulations would have prevented the accident. Accordingly, summary judgment is due to be granted in favor of Defendants.
C. Conclusion
Upon consideration, and for the reasons set forth herein, the motion for partial summary judgment is GRANTED. Accordingly, summary judgment is entered in favor of Defendants as to the Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action. The First, Second and Ninth Causes of Action remain for trial.
DONE and ORDERED this the 21st day of May 2018.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE