2018 WL 5133492

Court of Appeals of Washington, Division 1.
STATE of Washington, Washington State Department of Transportation, Respondents,
Daniel A. Sligh and Sallettee R. Sligh, individually and the marital community composed thereof; Bryce Kenning, a single person, Plaintiffs,
v.
MULLEN TRUCKING 2005, LTD., a Canadian corporation or business entity d/b/a Mullen Trucking LP; William Scott and Jane Doe Scott, individually and the marital community composed thereof, Petitioners,
and
Saxon Energy Services, Inc., Tammy J. Detray and Gregory Detray, individually and the marital community composed thereof; G&T Crawlers Service, a Washington business entity, Defendants.
Mullen Trucking 2005, Ltd., a Canadian corporation or business entity d/b/a Mullen Trucking LP; William Scott and Jane Doe Scott, individually and the marital community composed thereof; Petitioners,
v.
State of Washington, Respondent,
Patty Auvil d/b/a Olympic Peninsula Pilot Service and John Doe Auvil, individually and the marital community composed thereof, Defendants,
and
Motorways Transport, Ltd., a Canadian corporation; Amandeep Sidhu and Jane Doe Sidhu, individually and the marital community composed thereof, Petitioners.
No. 76310-5-I
|
FILED: October 22, 2018
Synopsis
Background: The State Department of Transportation (DOT) filed a negligence complaint against truck driver and driver’s employer after over-height load on truck struck bridge supports, causing the bridge to collapse. Employer alleged the DOT, second truck driver, and second driver’s employer were contributorily negligent. The DOT moved for partial summary judgment. The Superior Court, Skagit County, No. 15-2-00163-1, David R. Needy, J., dismissed the contributory negligence affirmative defenses of employers and granted the DOT’s motion for partial summary judgment. Employers sought discretionary review.

Holdings: The Court of Appeals, Andrus, J., held that:

[1] statute precluding any finding of comparative fault on behalf of the State, and

[2] the motorist liability statutes controlled over general proportionate liability statute.

Affirmed.

West Headnotes (8)

[1]
Automobiles

Statute precluding any finding of comparative fault on behalf of the State, in negligence action filed by the State Department of Transportation (DOT) against truck driver and driver’s employer after over-height load on truck struck a bridge’s supports, causing the bridge to collapse; statute relieved the State of liability if it had provided at least 14 feet of clearance or properly signed a lower clearance, the State provided more than 14 feet of vertical height clearance on bridge, truck driver had a permit for a load of 15 feet and nine inches, and the load exceeded the 15 feet and six inches of clearance on the bridge, and related statute provided that a motorist who operated a vehicle negligently was liable for all damages to a public highway or bridge. Wash. Rev. Code Ann. §§ 46.44.020, 46.44.110.
Cases that cite this headnote

[2]
Statutes

Statutory interpretation is a question of law that the Court of Appeals reviews de novo.
Cases that cite this headnote

[3]
Statutes

The Court of Appeals primary duty in interpreting a statute is to discern the intent of the legislature.
Cases that cite this headnote

[4]
Statutes

When interpreting a statute the Court of Appeals begins with the statute’s plain language, which may be discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.
Cases that cite this headnote

[5]
Statutes

If the plain meaning of the statute is unambiguous, the Court of Appeals inquiry is at an end.
Cases that cite this headnote

[6]
Statutes

The motorist liability statutes controlled over general proportionate liability statute, when apportioning fault in negligence action filed by the State Department of Transportation (DOT) against truck driver and driver’s employer after over-height load on truck struck a bridge’s supports, causing the bridge to collapse; the motorist liability statutes were specific and controlled over the general proportionate liability statute. Wash. Rev. Code Ann. §§ 4.22.070(1), 46.44.020, 46.44.110.
Cases that cite this headnote

[7]
Automobiles

The State has a common law duty to maintain roads in a condition safe for ordinary travel.
Cases that cite this headnote

[8]
Statutes

Where a specific statute conflicts with a general one, the specific statute prevails.
Cases that cite this headnote

Appeal from Skagit Superior Court, Docket No: 15-2-00163-1, Honorable David R. Needy, Judge
Attorneys and Law Firms
Steven William Block, Foster Pepper PLLC, 1111 3rd Ave. Ste. 3000, Seattle, WA, 98101-3292, Brian Del Gatto, Attorney at Law, 1010 Washington Blvd. Fl. 8, Stamford, CT, 06901-2202, Aaron Dean, Aaron Dean & Associates, PLLC, 520 Pike St. Ste. 1205, Seattle, WA, 98101-4042, Mark Preston Scheer, Matthew Erickson, Scheer Law Group LLP, 701 Pike St. Ste. 2200, Seattle, WA, 98101-2358, for Appellant.
Richard Steven Puz, Patricia D. Todd, Office of the Attorney General, 7141 Cleanwater Dr. Sw, Po Box 40126, Olympia, WA, 98504-0126, Alicia O. Young, Attorney General’s Office, 7141 Cleanwater Dr. Sw, Po Box 40111, Olympia, WA, 98504-0111, for Respondent.
Amanda Emily Vedrich, Carey & Vedrich, 7016 35th Ave. Ne, Seattle, WA, 98115-5917, for Other Parties.

PUBLISHED OPINION
Andrus, J.
*1 ¶ 1 William Scott, a truck driver employed by Mullen Trucking 2005 Ltd. (Mullen), was transporting an over-height load when his truck struck overhead supports on the Skagit River Bridge, causing the bridge to collapse. The Washington State Department of Transportation (State or WSDOT) sued Scott and Mullen Trucking for negligence. Mullen alleged that WSDOT and a second truck driver, Amandeep Sidhu and Sidhu’s employer, Motorways Transport, Ltd., were contributorily liable for the bridge collapse. After WSDOT added Motorways to the lawsuit, Mullen and Motorways sought to reduce their liability by the percentage of fault they claimed was attributable to the State. The trial court dismissed Mullen’s and Motorways’ contributory negligence affirmative defense and/or counterclaim on summary judgment, ruling that under RCW 46.44.020, no fault may be allocated to the State. We granted Mullen’s motion for discretionary review, which Motorways joined.

¶ 2 Under Washington’s motor vehicle code, a person who operates a vehicle in any negligent or illegal manner is liable for “all damages” to a public highway or bridge. RCW 46.44.110. The legislature passed a statute explicitly providing that “no liability” may attach to the State for damages that occur by reason of the existence of an overhead structure where, as here, the State provides at least 14 feet of vertical clearance. RCW 46.44.020. We conclude that these statutes unambiguously express a legislative determination that all financial responsibility for damage to the Skagit River Bridge must be borne by negligent motorists and none may be shifted to the State. An allocation of fault under RCW 4.22.070 would shift a portion of financial responsibility to the State in contravention of RCW 46.44.020. We affirm the trial court.

FACTS
¶ 3 The Skagit River Bridge is located on Interstate 5 between Burlington and Mount Vernon. The bridge has two lanes in each direction with a concrete barrier separating northbound and southbound traffic. Before its collapse, the bridge was a “through truss structure,” meaning that it had trusses, or supports, above the roadway. Several of the bridge’s steel parts were in tension (“fracture critical”) so that if one failed, a portion of the bridge could collapse. The bridge’s supports formed an arch so that vertical clearance was highest in the center and lowest on the sides of the roadway. The left southbound lane had a clearance of 17 feet 6 inches and the right lane had a clearance of 15 feet 6 inches. The right shoulder had a clearance of 14 feet 8 inches.

¶ 4 The traffic lanes were narrower on the bridge than on the roadway approaching the bridge. The bridge was signed with what is known as an “object marker,” which indicates a variety of road conditions, but it did not specifically identify vertical clearance or lane width.

¶ 5 On May 23, 2013, Scott was transporting a metal casing shed from Canada to Washington State for his employer, Mullen Trucking. Before crossing the border, Scott obtained an online permit from WSDOT to transport an over-width and over-height load from Valemount, British Columbia, to Vancouver, Washington. Online permits are self-issued and require the user to supply load and route information. Mullen’s permit listed the load as having a maximum width of 11 feet 6 inches and a maximum height of 15 feet 9 inches. The permit warned that WSDOT did not guarantee height clearances. Scott acknowledged that the driver is responsible for researching the route and ensuring clearance.

*2 ¶ 6 Because of the height of Scott’s load, he was required to use a pilot car with a height pole. The pilot car driver is expected to know road clearances and inform the truck driver of any obstacles. Scott hired a local pilot car driver, Tammy DeTray, for her knowledge and experience of the local roads. DeTray did not research Scott’s route or give him any information about the Skagit River Bridge.

¶ 7 As DeTray and Scott approached the bridge, they were both in the right hand lane, with DeTray a few seconds ahead of Scott. Scott observed a semi-truck approaching quickly from behind. This second truck belonged to Motorways Transport and was driven by Sidhu. Sidhu moved into the left lane and began passing Scott before they entered the bridge.

¶ 8 DeTray, the pilot car driver, crossed the bridge. She was on the phone with her husband as she drove. Although DeTray testified that her height pole did not strike the bridge, a witness stated that DeTray’s height pole struck the bridge’s overhead spans several times.

¶ 9 When Scott entered the bridge, Sidhu was pulling ahead of him in the left lane. Sidhu’s truck was extremely close to Scott, forcing Scott to the right and partially onto the shoulder. Scott heard a huge bang, his truck began to shake, and he felt some of the truck’s tires come off the ground. Scott did not know what had happened. He coasted across the bridge, regained control, and pulled over. When Scott walked back to the bridge, he saw that the north section had collapsed and was in the water.

¶ 10 Three passenger vehicles had entered the bridge behind Scott and Sidhu. The first, driven by David Ruiz, managed to cross the bridge. The next two vehicles, driven by Daniel Sligh and Bryce Kenning, crashed into the river as the bridge collapsed. The occupants suffered non-life threatening injuries.

¶ 11 An investigation later determined that Scott’s load had an actual maximum height of 15 feet 11 inches, two inches above his permit allowance, and that the load struck 11 of the bridge’s braces. The investigation report stated that Scott’s load could only have cleared the bridge if it straddled the right and left lanes. Scott could not straddle the lanes because Sidhu’s truck was in the left lane. The investigation concluded that Scott caused the collision by failing to ensure his load height was proper and failing to know the clearance heights on the bridge.

¶ 12 The State brought an action against Mullen, Scott, and DeTray, alleging that their negligence caused the bridge collapse.1 In its answer, Mullen asserted contributory negligence as an affirmative defense and counterclaim, alleging that the State’s damages were caused wholly or partially by its own negligence in bridge maintenance, signage, and permitting. Mullen argued that its liability should be reduced by the State’s comparative fault. Mullen also asserted a cross claim against Motorways. The State amended its complaint to add a negligence claim against Motorways.2

*3 ¶ 13 The State moved for partial summary judgment, arguing that under RCW 46.44.020, it could not be found financially responsible for any portion of the damages resulting from the bridge collapse. Mullen and Motorways opposed the motion, arguing that RCW 46.44.020 does not protect the State from defensive counterclaims or from a finding of comparative fault that would reduce the defendants’ liability. In addition, Motorways argued that, even if the statute shields the State from any finding of comparative fault as to Mullen, it does not have the same effect as to Motorways.

¶ 14 The trial court granted the State’s motion for partial summary judgment, concluding that RCW 46.44.020 shields the State from liability and, in this case, precludes any finding of comparative fault that would shift financial responsibility to the State. We granted discretionary review.

ANALYSIS
[1]¶ 15 Mullen and Motorways appeal the grant of partial summary judgment to the State, arguing that the trial court erroneously interpreted RCW 46.44.020 to preclude any finding that the State was contributorily negligent. Mullen and Motorways assert that, under Washington’s comparative fault scheme, they should be permitted to seek an allocation of fault against any and all at-fault entities. See RCW 4.22.070. They contend RCW 46.44.020 shields the State from liability but not from an allocation of fault.

¶ 16 Article II, § 26 of the Washington State Constitution provides that “the legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.” In 1961, the Legislature waived the state’s sovereign immunity with respect to tort actions. LAWS OF 1961, ch. 136, § 1, codified as RCW 4.92.090. This statute makes the state presumptively liable for its tortious conduct “in all instances in which the Legislature has not indicated otherwise.” Savage v. State, 127 Wash.2d 434, 445, 899 P.2d 1270 (1995). But the right to sue the State is not a fundamental right. Wells Fargo Bank, N.A. v. Dep’t of Revenue, 166 Wash. App. 342, 358, 271 P.3d 268 (2012). The legislature has the authority to define the parameters of any cause of action, including claims that may be asserted against the State. See Sofie v. Fibreboard Corp., 112 Wash.2d 636, 666, 771 P.2d 711 (1989); O’Donoghue v. State, 66 Wash.2d 787, 789, 405 P.2d 258 (1965). See also Wells Fargo Bank, 166 Wash. App. at 358, 271 P.3d 268 (holding that Washington’s Administrative Procedure Act, chapter 34.05 RCW, limited the general right to sue the State).

¶ 17 WSDOT contends that RCW 46.44.020 constitutes a legislative decision to restrict claims, and by extension, a contributory negligence affirmative defense, against the State arising out of vehicular damage to a State-owned bridge as long as the State has provided at least 14 feet of vertical clearance. We agree.

[2] [3] [4] [5]¶ 18 Statutory interpretation is a question of law that we review de novo. City of Spokane v. Rothwell, 166 Wash.2d 872, 876, 215 P.3d 162 (2009). Our primary duty in interpreting a statute is to discern the intent of the legislature. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003). We begin with the statute’s plain language, which may be discerned “from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 11, 43 P.3d 4 (2002). If the plain meaning of the statute is unambiguous, our inquiry is at an end. Lake v. Woodcreek Homeowners Ass’n, 169 Wash.2d 516, 526, 243 P.3d 1283 (2010).

¶ 19 The statute at issue concerns vehicle height and vertical clearance. This statute was first enacted in 1937 and has changed little since that time.3 LAWS OF 1937, ch. 189, § 48. The current statute, RCW 46.44.020, limits vehicle height to 14 feet and requires the vehicle operator to exercise due care in ensuring adequate vertical clearance:
*4 It is unlawful for any vehicle … to exceed a height of fourteen feet above the level surface upon which the vehicle stands … The provisions of this section do not relieve the owner or operator of a vehicle or combination of vehicles from the exercise of due care in determining that sufficient vertical clearance is provided upon the public highways where the vehicle or combination of vehicles is being operated…
RCW 46.44.020.

¶ 20 The same statute relieves the State of liability if it has either (1) provided at least 14 feet of clearance or (2) properly signed a lower clearance:
[N]o liability may attach to the state or to any county, city, town, or other political subdivision by reason of any damage or injury to persons or property by reason of the existence of any structure over or across any public highway where the vertical clearance above the roadway is fourteen feet or more; or, where the vertical clearance is less than fourteen feet, if impaired clearance signs … are erected and maintained on the right side of any such public highway … If any structure over or across any public highway is not owned by the state or by a county, city, town, or other political subdivision … no liability may attach to the owner by reason of any damage or injury to persons or property caused by impaired vertical clearance above the roadway.
RCW 46.44.020. It is undisputed that in this case, the State provided more than 14 feet of vertical clearance on the Skagit River Bridge, Scott’s load exceeded 14 feet in height and, although permitted for 15 feet 9 inches,4 his load exceeded the 15 feet 6 inches of clearance on the bridge.

¶ 21 A related provision, RCW 46.44.110, defines a motorist’s liability.5 Under that statute, a motorist who operates a vehicle negligently or illegally is liable for all damages to a public highway or bridge:
Any person operating any vehicle or moving any object or conveyance upon any public highway in this state or upon any bridge or elevated structure that is a part of any such public highway is liable for all damages that the public highway, bridge, elevated structure, or other state property may sustain as a result of any illegal operation of the vehicle or the moving of any such object or conveyance or as a result of the operation or moving of any vehicle, object, or conveyance weighing in excess of the legal weight limits allowed by law. This section applies to any person operating any vehicle or moving any object or contrivance in any illegal or negligent manner or without a special permit as provided by law for vehicles, objects, or contrivances that are overweight, overwidth, overheight, or overlength. Any person operating any vehicle is liable for any damage to any public highway, bridge, elevated structure, or other state property sustained as the result of any negligent operation thereof.
*5 RCW 46.44.110.

¶ 22 Read together, these statutes unambiguously (1) limit vehicle height and require a vehicle’s operator to exercise due care as to vertical clearance; (2) declare that “no liability may attach to the state” where it has provided at least 14 feet of clearance; and (3) assign to a negligent motorist liability for “all damages” to a public highway or bridge. Applying these statutes to the circumstances here, we conclude that they clearly express a legislative determination that the State is to bear no financial responsibility for damages resulting from the collision of the Mullen truck with the Skagit River Bridge. The trial court did not err in interpreting RCW 46.44.020 to preclude any finding of comparative fault.

¶ 23 Mullen and Motorways contend that apportioning fault to the State under RCW 4.22.070(1) would not shift “liability” to the State but only reduce the State’s recovery. But, reducing the State’s recovery would, in fact, shift a degree of liability to the State, contrary to RCW 46.44.020. Apportioning fault to the State would also relieve the negligent motorist of its liability for “all damages” under RCW 46.44.110.

[6]¶ 24 Mullen and Motorways also assert that, by the plain language of the comparative fault statute, RCW 4.22.070(1), it applies here. As part of the tort reform act of 1986, the legislature replaced joint and several liability with comparative negligence in most situations. Tegman v. Accident & Med. Investigations, Inc., 150 Wash.2d 102, 108-09, 75 P.3d 497 (2003). To determine proportionate liability, the trier of fact allocates fault among all at-fault entities. RCW 4.22.070(1). The State does not argue that it is categorically exempt from proportionate liability. Rather, it asserts that, because the motorist liability statutes specifically relieve the State of liability under the factual circumstances of this case, and assign all liability to the negligent motorists, these statutes, and not RCW 4.22.070, govern. We agree.

[7] [8]¶ 25 The State has a common law duty to maintain roads in a condition safe for ordinary travel. Wuthrich v. King County, 185 Wash.2d 19, 25, 366 P.3d 926 (2016). And generally, when a motorist sues the state for a breach of this common law duty, proportionate liability is the general rule. Tegman, 150 Wash.2d at 109, 75 P.3d 497. But under our state constitution, the legislature has the authority to limit the type of legal claims that may be asserted against the State. See Wells Fargo Bank, 166 Wash. App. at 358, 271 P.3d 268. Where a specific statute conflicts with a general one, the specific statute prevails. Id. See also Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council (EFSEC), 165 Wash.2d 275, 309, 197 P.3d 1153 (2008) (where one statute is specific and the other is general, the specific statute controls regardless of when it was enacted). Because the motorist liability statutes, RCW 46.44.020 and .110, specifically address liability in the circumstances here, they control over the general proportionate liability statute.

*6 ¶ 26 Mullen and Motorways argue that RCW 46.44.020 does not displace RCW 4.22.070 but is, at most, a grant of immunity. They contend that if the State is “an entity immune from liability,” RCW 4.22.070 contemplates that its fault should be determined. Mullen and Motorways rely on Humes v. Fritz Cos., Inc., 125 Wash. App. 477, 105 P.3d 1000 (2005) to assert that fault must be apportioned to all entities, even those who may be immune from suit. In Humes, a crane operator sued a trucking company for personal injuries he sustained outside the Tulalip Casino on the Tulalip Indian Reservation. Humes, 125 Wash. App. at 481, 105 P.3d 1000. The defendant sought to allocate fault to the Tulalip Tribe (Tribe) who was protected from suit by sovereign immunity. Id. The trial court ruled that, because the Tribe had sovereign immunity, no fault could be allocated to it under RCW 4.22.070. Id. This court reversed, ruling that the Tribe’s sovereign immunity did not bar the allocation of fault. Id. at 491, 105 P.3d 1000.

¶ 27 But the Supreme Court in Smelser v. Paul, 188 Wash.2d 648, 653-54, 398 P.3d 1086 (2017) cautioned courts not to confuse “immunity” with the lack of a tort duty. We conclude that the motor vehicle statute is not a grant of “immunity,” but instead sets out the scope of the State’s tort duty to the traveling public. RCW 46.44.020 provides that the State must erect and maintain a warning sign of an impaired clearance when vertical clearance is under 14 feet. But where clearance exceeds 14 feet, the State owes no further duty of care with regard to the overhead structure. The duty to exercise due care falls to the owners or operators of vehicles. The statutory language evidences an intent to define and narrow the scope of the State’s tort duty. It does not immunize the State from all liability associated with damages arising from overhead obstacles on public highways.

¶ 28 Motorways contends that, even if RCW 46.44.020 precludes a finding of comparative fault in the State’s action against Mullen, it does not preclude a finding of comparative fault in the State’s action against Motorways. Motorways argues RCW 46.44.020 only addresses liability between the bridge owner and the motorist who struck the bridge. The argument is without merit. The State’s claim is that Motorways drove its truck negligently by overtaking Mullen’s truck on a narrow bridge, proximately causing Mullen to strike the overhead structures of the Skagit River Bridge. Because this claim concerns damage “by reason of the existence of any structure over or across any public highway,” RCW 46.44.020 applies.

¶ 29 Finally, Mullen and Motorways argue that if we eliminate their ability to assert comparative fault against WSDOT, it will affect whether they are ultimately only severally liable or jointly and severally liable. The trial court expressly declined to rule on whether joint and several liability applies in this case, reserving that issue for trial. Joint and several liability was not an issue raised in the petition for discretionary review and, because the trial court made no ruling on the question, there is no assignment of error on this issue. We decline to reach the issue of whether Mullen and Motorways’ liability is joint and several or several only, as that issue is beyond the scope of our review. See Clark County v. W. Wash. Growth Mgmt. Hr’gs Review Bd., 177 Wash.2d 136, 144-45, 298 P.3d 704 (2013).

¶ 30 Affirmed.

WE CONCUR:
Mann, J.
Becker, J.
All Citations
— P.3d —-, 2018 WL 5133492

Footnotes

1
The State also asserted a negligence claim against Saxon, the company that hired Mullen to transport the casing. Saxon did not participate in this appeal.

2
The State also added a claim against Olympic Peninsula Pilot Service, which allegedly employed DeTray. The motorists whose cars crashed into the river, Sligh and Kenning, joined the State’s action. Sligh and Kenning settled and were no longer parties to the action when the court granted partial summary judgment to the State.

3
The original statute limited vehicle height to 12 feet 6 inches. LAWS OF 1937, ch. 189, § 48.

4
The State notes that, under the rules governing permits, the operator accepts liability for any damage resulting from the use of an oversize vehicle:
Permits are granted with the specific understanding that the permit applicant shall be responsible and liable for accidents, damage or injury to any person or property resulting from the operation of the vehicle covered by the permit upon public highways of the state. The permit applicant shall hold blameless and harmless and shall indemnify the state of Washington, department of transportation, its officers, agents, and employees against any and all claims, demands, loss, injury, damage, actions and costs of actions whatsoever, that any of them may sustain by reason of unlawful acts, conduct or operations of the permit applicant in connection with the operations covered by the permit.
WAC 468-38-050(5).

5
This statute was also first enacted in 1937. LAWS OF 1937, ch. 189, § 57.

2018 WL 5284616

United States District Court, N.D. Mississippi, Oxford Division.
ELIZABETH FINLEY, Individually and on behalf of the Estate and Wrongful Death Beneficiaries of Thomas Finley, Jr., Deceased PLAINTIFF
v.
DAVID DYER, et al. DEFENDANTS
NO. 3:18-CV-78-DMB-JMV
|
Filed: 10/24/2018

ORDER
Debra M. Brown UNITED STATES DISTRICT JUDGE
*1 This personal injury action is before the Court on Cornerstone Systems, Inc.’s motion for judgment on the pleadings. Doc. #22.

I Procedural History
On January 2, 2018, Elizabeth Finley, acting individually and on behalf of the wrongful death beneficiaries of Thomas Finley, Jr., filed a complaint in the Circuit Court of Marshall County, Mississippi, naming as defendants David Dyer, Jamac Logistics, LLC, Cornerstone Systems, Inc., RG Logistics, LLC, COFC Logistics, LLC, Interpool, Inc. d/b/a Trac Intermodal, and “John Does 1-10.” Doc. #2 at 1, 10. The complaint alleged that Thomas1 died when the car he was driving was struck by a freightliner “owned by Intermodal with the freight being brokered and/or shipped through RG, Cornerstone and/or COFC through a joint venture with Jamac.” Id. at 1, 3. Of relevance here, the complaint asserted two claims against Cornerstone: a claim for negligent hiring, and a claim for negligent entrustment. Id. at 7–8. Additionally, while not asserted as a separate count, the complaint alleged:

Dyer was, at all times pertinent to this action, an agent, employee, and/or servant of Jamac and/or Cornerstone, RG, COFC, Interpool and John Doe Defendants 1 through 10. Therefore, Jamac and/or Cornerstone, RG, COFC, Interpool and John Doe Defendants 1 through 10, are liable for Dyer’s acts under the doctrine of respondeat superior.
Id. at 4.
Elizabeth’s state court action was removed to this Court on April 2, 2018,2 and the defendants subsequently filed separate answers. Docs. #7, #12, #14, #15, #16. On June 19, 2018, Cornerstone filed a motion for judgment on the pleadings. Doc. #22. With leave of the Court, on July 19, 2018, Elizabeth filed an amended complaint which contains the same substantive allegations but substitutes “RGL, Inc.” as a defendant in place of RG Logistics.3 See Doc. #41 at 1. After filing the amended complaint, Elizabeth responded to the motion for judgment on the pleadings on July 27, 2018.4 Doc. #51. Cornerstone replied on August 3, 2018. Doc. #57.

II Standard
Federal Rule of Civil Procedure 12(c) authorizes a party to move for judgment on the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” A motion for judgment on the pleadings “may dispose of a case when there are no disputed material facts and the court can render a judgment on the merits based on the substance of the pleadings and any judicially noticed facts.” Linicomm v. Hill, 902 F.3d 529, 533 (5th Cir. 2018) (internal quotation marks omitted). “To avoid dismissal, a plaintiff must plead sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). In making this determination, a court “must construe the complaint in the light most favorable to the plaintiff.” Id.

III Relevant Facts
*2 At an unknown time, Cornerstone, acting as a broker, contracted with Jamac, its independent contractor, to serve as a motor carrier and transport certain freight hauled by Jamac pursuant to a Broker-Drayage Intermodal Agreement. Doc. #61 at ¶ 36; Doc. #41 at ¶ 36. Jamac, in turn, retained Dyer to drive the goods. Doc. #41 at ¶¶ 28–34. While transporting the freight, Elizabeth alleges that Dyer negligently crossed the median and struck Thomas’ car, killing him. Id. at ¶¶ 13–17.

IV Analysis
In its motion, Cornerstone argues that it is entitled to dismissal of the negligent entrustment and negligent hiring claims because such claims are preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”).

A. Federal Preemption
“Under the federal Constitution, both the National and State Governments have elements of sovereignty the other is bound to respect.” City of El Cenizo v. Texas, 890 F.3d 164, 176 (5th Cir. 2018) (quotation marks omitted). However, the Supremacy Clause of the federal Constitution makes clear that federal laws “shall be the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Consistent with this dictate, “Congress may preempt state legislation by enacting a statute containing an express preemption provision.” City of El Cenizo, 890 F.3d at 176. Absent express preemptive language, the United States Supreme Court has “recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” and “conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (citations and quotation marks omitted).

“Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Where, as here, the statute contains an express preemption clause, a court must “identify the domain expressly pre-empted because an express definition of the pre-emptive reach of a statute supports a reasonable inference that Congress did not intend to pre-empt other matters.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) (alterations, citations, and quotation marks omitted). To accomplish this, a court must “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.”5 Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 594 (2011).

B. History of FAAAA
*3 Prior to 1978, the interstate airline industry in the United States was tightly regulated by the federal government. Congress determined in 1978 that both consumers and the economy would benefit from open competition in the airline industry, especially in the areas of rates and services, and that this could be achieved by economic deregulation of the industry. As a result, the Airline Deregulation Act of 1978 (the “ADA”) was enacted. To ensure that the States would not undo federal deregulation with regulation of their own, the ADA included a pre-emption provision, prohibiting the States from enforcing any law relating to rates, routes, or services of any air carrier.
The Motor Carrier Act of 1980, similarly deregulated the motor carrier industry, but it did not preempt state regulation of the industry. Over the next fourteen years, however, state economic regulation of motor carrier operations had become a huge problem for national and regional carriers attempting to conduct a standard way of doing business. Congress addressed this concern in 1994 when it enacted the FAAAA, which expressly preempted certain state regulation of the trucking industry.
Lupian v. Joseph Cory Holdings LLC, No. 17-2346, 2018 WL 4623718, at *3–4 (3d Cir. Sep. 27, 2018) (alterations, citations, and quotation marks omitted).
The FAAAA’s preemption provision provides that, subject to certain exceptions, one of which is discussed in detail below:
a State, political subdivision of a State, or political authority of 2 or more States 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).

“Although § 14501(c)(1) otherwise tracks the ADA’s air-carrier preemption provision, the FAAAA formulation contains one conspicuous alteration—the addition of the words ‘with respect to the transportation of property.’ ” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261 (2013) (citations omitted). This phrase is clarified by 49 U.S.C. § 13102(23), which defines the term “transportation” as including:
(A) a motor vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use; and
(B) services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.

C. Analysis
By its terms, the FAAAA preempts any “law, regulation, or other provision having the force and effect of law” which is “related to a price, route, or service” of brokers (or other covered businesses), so long as the relation to the service is “with respect to the transportation of property.” See Pelkey, 569 U.S. at 261 (“Pelkey’s claims escape preemption, we hold, because they are not ‘related to’ the service of a motor carrier ‘with respect to the transportation of property.’ ”); see also Mass. Delivery Ass’n v. Coakley, 769 F.3d 11, 23 (1st Cir. 2014) (“The second phrase excludes from FAAAA preemption any state law that affects a motor carrier’s prices, routes, or services outside the context of the transportation of property.”). Because common law rules, such as tort claims, “fall under the scope of the FAAAA,” Krauss v. IRIS USA, Inc., No. 17-778, 2018 WL 2063839, at *4 (E.D. Pa. May 3, 2018) (collecting cases); and because there is no dispute Cornerstone is a “broker”6 as that term is used in the FAAAA, preemption will be appropriate if Elizabeth’s claims for negligent hiring and negligent entrustment are “related to” a price, route, or service with respect to transportation offered by Cornerstone.

1. “Related to”
*4 “The phrase related to … embraces state laws having a connection with or reference to … rates, routes, or services, whether directly or indirectly.” Pelkey, 569 U.S. at 260 (internal quotation marks omitted). However, “the breadth of the words ‘related to’ does not mean the sky is the limit.” Id. Rather, section 14501(c)(1) “does not preempt state laws affecting carrier prices, routes, and services in only a tenuous, remote, or peripheral manner.” Id. (internal alterations and quotation marks omitted).

While it appears the Fifth Circuit has not addressed the extent to which state tort laws are “related to” “rates, routes, or services” in the context of the FAAAA, it has done so in the context of the ADA. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 339–40 (5th Cir. 1995); Malik v. Cont’l Airlines, Inc., 305 F. App’x 165, 168–69 (5th Cir. 2008). Insofar as the “[t]he FAAAA’s preemption provision is in pertinent part identical to the preemption provision of the ADA and is generally construed in pari materia,”7 the Court deems this authority extremely persuasive, if not binding. See Dnow, L.P. v. Paladin Freight Sols., Inc., No. 4:17-CV-3369, 2018 WL 398235, at *4 (S.D. Tex. Jan. 12, 2018) (similarities between ADA and FAAAA rendered Hodges “tantamount to binding authority” in FAAAA case).

In Hodges, the Fifth Circuit held that the ADA did not preempt a “state law tort claim for physical injury based on alleged negligent operation of [an] aircraft.” 44 F.3d at 335. In reaching this conclusion, the Fifth Circuit held:
“Services” generally represent a bargained-for or anticipated provision of labor from one party to another. If the element of bargain or agreement is incorporated in our understanding of services, it leads to a concern with the contractual arrangement between the airline and the user of the service. Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself. These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline. It is these contractual features of air transportation that we believe Congress intended to de-regulate as “services” and broadly to protect from state regulation.
Id. at 336 (alteration omitted).

Thus, Hodges distinguished between claims premised on “the operation and maintenance of aircraft,” which fall outside the ADA’s definition of “services,” and “contractual features of air transportation” “such as ticketing, boarding procedures, provision of food and drink, and baggage handling,” which do not. Id. at 336. Ultimately, the Fifth Circuit concluded that because “Hodges alleged that Delta was negligent in allowing the case of rum to be stowed in an overhead storage bin,” the claim “derive[d] from the operation of the aircraft” rather than services of the air carrier and was, therefore, not preempted. Id. at 340.

Consistent with Hodges, the Fifth Circuit in Malik found that state law claims based on loss of luggage “have a connection with [the defendant’s] baggage handling services,” so as to warrant preemption. 305 F. App’x at 168–69. The Court reached this conclusion by once again drawing a distinction between claims deriving from (or “centered on”) airline operations, which are not preempted, and those derived from “contractual features” of air services, which are preempted. See id. at 169 (“If Malik’s bags had caught on fire during a plane crash, her contention might have merit. But her claims are centered on airline personnel’s alleged mishandling of her bags, not damage from the way in which the plane was flown.”).

*5 Recently, in Dnow, a district judge in the Southern District of Texas considered the impact of Hodges and FAAAA preemption on a negligence claim brought against a freight broker for damages arising from a collision involving one of the broker’s drivers. 2018 WL 398235, at *3– 5. In evaluating preemption, the district judge noted that the claim asserted was “simply a general negligence claim about the unsafe operation of a truck,” and not a claim for “negligent entrustment or negligent hiring,” which “might implicitly impose constraints on the operations of a freight broker ….” Id. at *4. Then, relying primarily on Hodges, and Elam v. Kansas City Southern Railway, Co., 635 F.3d 796 (5th Cir. 2011), a case where the Fifth Circuit found no preemption of general negligence claims under a statute similar to the FAAAA, the district judge found no preemption of the plaintiff’s claims. Id. at *4–5.

Based on the authority above, this Court concludes that a negligence claim is “related to” a “service” when the claim is “centered on” or “derives” from “a bargained-for or anticipated provision of labor from” a broker or other protected carrier. Here, Elizabeth, unlike the plaintiffs in Dnow and Hodges, does not assert a general negligence claim derived from the operation of a truck (or a plane, in the case of Hodges). Rather, Elizabeth alleges claims derived from Cornerstone’s selection of a freight carrier, an action which indisputably is a “bargained-for or anticipated provision of labor” from a freight broker. See 49 U.S.C. § 13102(2) (defining “broker” as a person8 “selling, providing, or arranging for, transportation by motor carrier for compensation”). Because Elizabeth’s claims derive from a broker’s service, this Court concludes that they are “related to” such a service. See Malik, 305 F. App’x at 168–69 (claims “centered on” baggage handling “related to” service provided by air carrier).9

2. “With respect to”
As explained above, the FAAAA’s preemption provision differs from the ADA’s by requiring that the “price, route, or service” impacted by the law to be preempted be “with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). “That phrase massively limits the scope of preemption ordered by the FAAAA” by requiring that the relevant law “concern a motor carrier’s transportation of property.” Pelkey, 569 U.S. at 261 (quotation marks omitted). Because the word “transportation” includes “arranging for” the transit of property, 49 U.S.C. § 13102(23), this requirement is easily met here.

3. Applicable exception
*6 Having concluded that Elizabeth’s claims are “related to” a broker service with respect to transportation, preemption is appropriate unless one of the FAAAA’s preemption exceptions applies. In this regard, Elizabeth urges the Court to apply the FAAAA’s public safety exemption. Doc. #51 at 13–16. This exemption states that the FAAAA’s preemption provision “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). Such provision “evinces a clear purpose to ensure that the preemption of States’ economic authority over motor carriers of property ‘not restrict’ the preexisting and traditional state police power over safety, a field which the states have traditionally occupied.” City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 426 (2002) (quotation marks omitted). However, because the provision is limited to those laws “with respect to motor vehicles,” to fall under the exemption, a properly exercised police power over safety must also “concern” motor vehicles. See Pelkey, 569 U.S. at 261 (defining “with respect to” as “concern[ing]”); FCC v. AT&T Inc., 562 U.S. 397, 408 (2011) (“[I]dentical words and phrases within the same statute should normally be given the same meaning.”). Motor vehicles are defined in the FAAAA as “a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation.” 49 U.S.C. § 13102(16).

Courts are divided on the question of whether negligence claims fall under the definition of “safety regulatory authority of a State,” so as to come within the ambit of the exemption. Compare Huntington Operating Corp. v. Sybonney Express Inc., No. H-08-781, 2010 WL 1930087, at *3 (S.D. Tex. May 11, 2010) (“Case law interpreting § 14501(c)(2)(A) refers solely to the ability of the several states to define safety standards and insurance requirements …. The exception is not read to permit a private right of action.”) (citing Ours Garage and Cardinal Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d 686 (5th Cir. 1999)), with Rosales v. Redco Transp. Ltd., No. 5:14-cv-129 2015 WL 9274068, at *3 (S.D. Tex. Dec. 21, 2015) (“[N]egligence claims like the ones here are part of the states’ safety regulatory authority.”).10 However, none of these decisions, as far as this Court can tell, considered the salient question raised by Ours Garage—whether common law claims for negligence fall within the “preexisting and traditional state police power over safety.”

“Historically, common law liability has formed the bedrock of state regulation, and common law tort claims have been described as a ‘critical component of the States’ traditional ability to protect the health and safety of their citizens.’ ” Desiano v. Warner-Lambert & Co., 467 F.3d 85, 86 (2d Cir. 2006) (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 544 (1992) (Blackmun, J., concurring in part and dissenting in part)). Given this, there can be no serious dispute that common law claims arising from the negligent procurement of a trailer represent a valid exercise of the state’s police power to regulate safety. Nor can there be any question that such claims, which are centered on a defendant’s efforts to place trailers on the highways, concern motor vehicles so as to fall under the exemption provision. Accordingly, the Court concludes that Elizabeth’s negligence claims fall within the “safety regulatory authority of a State with respect to motor vehicles” and, therefore, are not preempted.

V Conclusion
*7 For the reasons above, Cornerstone’s motion for judgment on the pleadings [22] is DENIED.

SO ORDERED, this 24th day of October, 2018.

All Citations
Slip Copy, 2018 WL 5284616

Footnotes

1
To avoid confusion, the Court will use the Finleys’ first names.

2
Doc. #1.

3
Because the amended complaint is substantively identical to the original, the motion for judgment on the pleadings is not moot. See Villas at Parkside Partners v. City of Farmers Branch, 245 F.R.D. 551, 557 (N.D. Tex. 2007) (“If some of the defects raised in the original motion remain in the new pleading, the court may simply consider the motion as being addressed to the amended pleading. To hold otherwise would be to exalt form over substance.”) (quoting 6 FED. PRAC. & PROC. CIV. § 1476 (3d ed.)).

4
Elizabeth was granted a requested extension to respond. Doc. #35.

5
Elizabeth urges the Court to apply a presumption against preemption of the “historic police powers of the States.” Doc. #51 at 4 (emphasis omitted). For years, the United States Supreme Court followed the general rule that
in all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, [a court] start[s] with the assumption that the historic police powers of the State were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.
Wyeth v. Levine, 555 U.S. 555, 565 (2009) (alterations and quotation marks omitted). However, the Supreme Court recently held that invocation of a presumption against preemption was inappropriate where the statute “contain[ed] an express pre-emption clause.” Puerto Rico v. Franklin Calif. Tax Free Tr., 136 S. Ct. 1938, 1946 (2016). In the wake of this decision, the viability of the presumption against preemption with regard to the FAAAA is unclear. Compare Watson v. Air Methods Corp., 870 F.3d 812, 817 (8th Cir. 2017) (no presumption against preemption in action involving analogous Airline Deregulation Act), with Lupian v. Joseph Cory Holdings LLC, No. 17-2346, 2018 WL 4623718, at *3 n.5 (3d Cir. Sep. 27, 2018) (applying presumption). This Court is inclined to believe that a presumption against preemption is no longer appropriate with respect to the FAAAA. Because the existence of a presumption would not alter this Court’s decision, it need not reach the issue here.

6
Under the FAAAA, the term “broker” is defined as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2).

7
Tobin v. Fed. Express Corp., 775 F.3d 448, 454 n.4 (1st Cir. 2014).

8
The FAAAA utilizes the definition of person set forth in 1 U.S.C. § 1, which provides that the word “person” includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See 49 U.S.C. § 13102(18) (“The term ‘person’, in addition to its meaning under section 1 of title 1, includes a trustee, receiver, assignee, or personal representative of a person.”).

9
See also Ga. Nut Co. v. C.H. Robinson Co., No. 17 C 3018, 2017 WL 4864857, at *3 (N.D. Ill. Oct. 26, 2017) (“Common-law negligent hiring and negligent supervision claims do not expressly reference freight broker services; however, they do have a significant economic effect on those services.”); Volkova v. C.H. Robinson Co., No. 16 C 1883, 2018 WL 741441, at *3 (N.D. Ill. Feb. 7, 2018) (“[T]he negligent hiring claims relate to the core service provided by Robinson—hiring motor carriers to transport shipments.”); Krauss v. IRIS USA, Inc., No. 17-778, 2018 WL 2063839, at *5 (E.D. Pa. May 3, 2018) (“[T]he negligent hiring claim against C.H. Robinson is that Mr. Krauss’s injuries directly flowed from C.H. Robinson’s failure to vet freight carrier KV Load. The claim therefore “relate[s] to the core service provided by Robinson—hiring motor carriers to transport shipments.”) (internal alterations and quotation marks omitted); ASARCO LLC v. England Logistics Inc., 71 F.Supp.3d 990, 1006 (D. Ariz. 2014) (“A fair and commonsense construction of the term ‘services’, whether read broadly or narrowly with regard to a ‘broker’ reasonably leads to no other conclusion than that a broker must find a reliable carrier to deliver the shipment.”).

10
The defendant in Rosales sought leave with the Fifth Circuit to file an interlocutory appeal, which the Fifth Circuit denied. See Morales v. Samsung SDS Am, Inc., No. 16-90003 (5th Cir. Dec. 21, 2015). The plaintiffs contend “[s]aid denial should be conclusive proof that the Fifth Circuit, consistent with the stare decisis doctrine, would continue to hold personal injury actions escape federal preemption.” Doc. #51 at 14. “The discretion of the court of appeals [to deny leave to file an interlocutory appeal] is so broad that it is difficult to imagine any controlling limit.” 16 FED. PRAC. & PROC. JURIS. § 3929 (3d ed.). Consistent with this discretion, courts of appeals have declined to hear interlocutory appeals for numerous reasons unrelated to the merits, such as the need to develop a factual record, Garcia v. Johanns, 444 F.3d 625, 636–37 (D.C. Cir. 2006), or general concerns of efficiency, In re Prudential Lines, Inc., 59 F.3d 327, 332–33 (2d Cir. 1995). Insofar as the Fifth Circuit provided no reason for its denial, the Court declines to impute any rationale to the decision, much less one which would form the basis of stare decisis.