Nat’l Cont’l Ins. Co. v. Singh
United States District Court for the Northern District of Illinois, Eastern Division
August 14, 2018, Decided; August 14, 2018, Filed
Case No. 17-cv-2603

Reporter
2018 U.S. Dist. LEXIS 136941 *
NATIONAL CONTINENTAL INSURANCE CO., Plaintiff, v. GIAN SINGH, as Representative of the Estate of Harpreet Singh, Sumeet Singh, AG EXPRESS, INC., and D LINE LOGISTICS, INC., Defendants.

MEMORANDUM OPINION AND ORDER
In this insurance coverage dispute, Plaintiff National Continental Insurance Co. (NCIC) sued Defendants D Line Logistics, Inc. (DLL), AG Express, Inc., and Gian Singh seeking a declaratory judgment that it owes no coverage obligations [*2] under an insurance policy issued to DLL, in connection with claims filed against Defendants in Gian Singh, as Personal Representative of the Estate of Harpreet Singh, deceased v. Sumeet Singh and D Line Logistics, Inc., 2016-L-006728 (Circuit Court of Cook County, Illinois). NCIC moved for summary judgment. For the reasons explained below, this Court denies NCIC’s motion.

I. Background
The facts in this Court’s discussion come from NCIC’s Local Rule 56.1 statement of facts [78], DLL’s response to NCIC’s statement of facts and additional facts [81], Gian Singh’s response to NCIC’s statement of facts [83], and NCIC’s response to DLL’s additional facts [85].

A. The Relevant Parties
NCIC is an insurer. [78] ¶ 3. DLL provides long-haul trucking services using independent contractors as drivers. [85] ¶¶ 3, 5. Both Harpreet Singh and Sumeet Singh drove for DLL. Id. ¶ 6.1

B. The Underlying Case
The underlying case arises from a tragic accident. In July 2016, Gian, as representative of Harpreet’s estate, filed a complaint against Sumeet, DLL, and AG Express in Illinois state court. [78] ¶ 1. The complaint alleges that on March 23, 2015, Harpreet sustained fatal injuries when a vehicle jointly owned by DLL and AG [*3] Express, and operated by Sumeet, pinned him against a neighboring semi-truck, crushing and ultimately killing him. See generally [78-1]. The complaint further alleges that, at the time of the accident, Sumeet was an employee of AG Express and/or DLL. Id. ¶ 7. The complaint seeks damages on behalf of Harpreet’s estate against the defendants on various state-law claims. See generally id.

C. The Policy
In October 2015, NCIC issued an insurance policy numbered 000-7344-040-4 (the Policy) to DLL with effective dates of October 5, 2014 to October 5, 2015. [85] ¶ 1; [78-2] at 1. The Policy provides the following liability coverage to DLL:
A. Coverage
We will pay sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto.”
[78-3] at 8.
The Policy contains the following definitions:
C. “Bodily injury” means bodily injury, sickness or disease sustained by a person including death resulting from any of these.
. . . .
F. “Employee” includes a “leased worker.” “Employee” does not include a “temporary worker.”
. . . .
I. “Leased worker” means a [*4] person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm to perform duties related to the conduct of your business. “Leased worker” does not include a “temporary worker.”
. . . .
O. “Temporary worker” means a person who is furnished to you to substitute for a permanent “employee” on leave or to meet seasonal or short-term workload conditions.
Id. at 16-18.
The Policy contains two exclusions at issue here. First, the “Fellow Employee” exclusion provides, in relevant part, that the Policy excludes from coverage bodily injury to any “fellow ’employee’ of the ‘insured’ arising out of and in the course of the fellow ’employee’s’ employment or while performing duties related to the conduct of your business.” Id. at 10. Second, the “Employee Indemnification and Employer’s Liability” exclusion provides that the Policy does not cover bodily injury to an “’employee’ of the ‘insured’ arising out of and in the course of (1) Employment by the ‘insured’; or (2) Performing the duties related to the conduct of the ‘insured’s’ business.” Id.
The Policy attaches a federally-mandated endorsement—known as the MCS-90 Endorsement—which says that the “insurance policy to which the endorsement [*5] is attached provides automobile liability insurance and is amended to assure compliance by the insured, within the limits stated herein, as a motor carrier of property, with Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Motor Carrier Safety Administration (FMCSA).” [78] ¶¶ 6, 7; [78-2] at 41. The MCS-90 Endorsement also explicitly states that “all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company.” [78-2] at 41.

D. The Coverage Dispute
In December 2016, NCIC’s claim representative issued a reservation of rights letter to DLL. [78] ¶ 13. The December 2016 letter states that coverage under the Policy may be excluded under the Policy’s “Fellow Employee” and “Employee Indemnification and Employer’s Liability” exclusions. Id.
Approximately three months later, NCIC sent DLL a second reservation of rights letter, stating that the definition of “employee” supplied in the Federal Motor Carrier Safety Regulations (FMCSR) applies to define the term in the Policy. Id. ¶¶ 14, 16. That March 2017 letter further states that, based upon this definition, [*6] the “Fellow Employee” and “Employee Indemnification and Employer’s Liability” exclusions barred coverage. Id. ¶ 16. The letter also states that NCIC would defend DLL in the underlying case under a full reservation of rights. Id. ¶ 18.
In April 2017, NCIC filed its initial complaint in this Court for declaratory judgment, id. ¶ 19 n.3; NCIC amended the complaint one month later, id. ¶ 19. In February 2018, NCIC filed a second amended complaint against Defendants seeking a declaration that: (1) NCIC owes no coverage under the Policy for the underlying case; and (2) NCIC owes no duty to defend or indemnify Defendants in the underlying case. See [72] at 6-7.
In June 2017, DLL filed a counterclaim against NCIC, seeking a declaration that: (1) there is affirmatively coverage under the Policy relating to the underlying case; (2) NCIC has an obligation to defend Defendants in the underlying case; (3) and NCIC must pay damages awarded in the underlying case up to the Policy’s limits. [16] at 4-8.

II. Legal Standard
Courts should grant summary judgment when the moving party shows that no genuine dispute exists as to any material fact and the evidence weighs so heavily in the moving party’s favor [*7] that the moving party “must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); see also Fed. R. Civ. P. 56. A genuine dispute as to a material fact exists when, based upon the evidence, a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 248. To show a genuine dispute as to a material fact, the non-moving party must point to “particular materials in the record,” and cannot rely upon the pleadings or speculation. Olendzki v. Rossi, 765 F.3d 742, 746 (7th Cir. 2014).
At summary judgment, courts must evaluate evidence in the light most favorable to the non-moving party and must refrain from making credibility determinations or weighing evidence. Rasho v. Elyea, 856 F.3d 469, 477 (7th Cir. 2017) (citing Anderson, 477 U.S. at 255). The moving party bears the burden of establishing the lack of genuine disputes as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

III. Analysis

A. Illinois Contract Law
The parties agree that Illinois law governs the interpretation of the Policy in this case. See, e.g., [77] at 12-13; [80] at 6; [82] at 6. Under Illinois law, if policy provisions “are clear and unambiguous there is no need for construction and the provisions will be applied as written.” Wehrle v. Cincinnati Ins. Co., 719 F.3d 840, 843 (7th Cir. 2013) (quoting U.S. Fire Ins. Co. v. Schnackenberg, 88 Ill. 2d 1, 429 N.E.2d 1203, 1205, 57 Ill. Dec. 840 (Ill. 1981)). The provisions in a “clear and unambiguous” policy “must be given their plain, ordinary, and popular meaning, and the policy will be applied as written, unless it contravenes public policy.” [*8] Id. (quoting Rich v. Principal Life Ins. Co., 226 Ill. 2d 359, 875 N.E.2d 1082, 1090, 314 Ill. Dec. 795 (Ill. 2007)).

B. The Policy’s Definition of “Employee” Controls
NCIC argues that the Policy’s “Fellow Employee” and “Employee Indemnification and Employer’s Liability” exclusions defeat coverage here. [77] at 11-14. The parties agree that the applicability of the exclusions turns on whether Harpreet and Sumeet were “employees” of DLL under the Policy. Id.; [80] at 6-12; [82] at 5-9.
In its motion, NCIC makes no effort to classify Harpreet and Sumeet as “employees” of DLL under the Policy’s existing definition. NCIC instead argues that the definition of “employee” set forth in the FMCSR applies to the Policy. [77] at 10-14. That definition “includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle).” 49 C.F.R. § 390.5 (2018) (emphasis added). NCIC reasons that, because it issued the Policy to a federal motor carrier to comply with the requirements of the FMCSR, the Policy should incorporate the broader “statutory employee” definition. [86] at 10-11. NCIC also points to the MCS-90 Endorsement as “additional proof” that the parties intended to comply with the FMCSR. Id. at 11.
This Court disagrees. The Policy is clear and unambiguous. [*9] It supplies a definition of “employee” that does not mention or reference the more expansive federal “statutory employee” definition. See [78-3] at 17-18. Nor does the MCS-90 Endorsement itself mention or reference the “statutory employee” definition. See [78-2] at 41-42. To the contrary, the MCS-90 Endorsement expressly states that “all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect.” [78-2] at 41. Applying the Policy as written, Wehrle, 719 F.3d at 843, this Court finds that the Policy does not incorporate the “statutory employee” definition.
This Court’s decision accords with the balance of the persuasive authority on this issue. For instance, in Gramercy Insurance Company v. Expeditor’s Express, Inc., the Sixth Circuit rejected reading into the underlying motor carrier policy the federal “statutory employee” definition where the policy already supplied a definition of “employee,” and nothing in the policy or attached MCS-90 endorsement suggested that the “statutory employee” definition should apply. 575 F. App’x 607, 608-09 (6th Cir. 2014). Central to the Sixth Circuit’s analysis was its determination that it could not adopt a definition that reduced the scope of coverage [*10] to the insured: “the relevant language of the endorsement—’amend[s the contract] to assure compliance’—does not incorporate the [statutory] definition of employee into the contract. . . . Nothing in the language of the endorsement suggests it operates to amend the more generous coverage in the insurance contract down to the minimum requirements” of the federal Motor Carrier Act. Id. at 609.
Similarly, in an opinion affirmed by the Eighth Circuit, the District of North Dakota declined to import the FMCSR’s broad definition of “employee” into a motor carrier policy where the policy already contained a definition. See Great W. Cas. Co. v. Nat’l Cas. Co., 53 F. Supp. 3d 1154, 1185-87 (D.N.D. 2014), aff’d, 807 F.3d 952 (8th Cir. 2015). As in Gramercy, the court found it significant that the policy already defined “employee” and made “no similar attempt” to incorporate the “statutory employee” definition. Id. at 1186. And, like the Gramercy court, the District of North Dakota recognized that adopting the federal “statutory employee” definition would “upset the expectations of the parties” by having the “effect of reducing the scope” of coverage. Id. The court also found that the attached MCS-90 endorsement did “not evince an intent that the federal ‘statutory employee’ definition be read into the underlying policy,” [*11] and rather “expressly states it does not otherwise modify the underlying policy.” Id. at 1187.
The District of Colorado reached a similar conclusion in Northland Insurance Company v. Rhodes, No. 09-CV-01691-REB-CBS, 2010 U.S. Dist. LEXIS 129997, 2010 WL 5110107 (D. Colo. Dec. 9, 2010). There, the court also declined to adopt the “statutory employee” definition where the policy already included a definition of “employee.” 2010 U.S. Dist. LEXIS 129997, [WL] at *7. The court further reasoned that “the fact that the contract includes such a definition suggests that, regardless of the overarching purpose of the contract, the parties did not specifically intend to incorporate the regulatory definition of ’employee’ into the policy.” Id.
Thus, the courts in Gramercy, Rhodes, and Great West declined to adopt the broader “statutory employee” definition into insurance policies where: (1) the policy already defined “employee;” and (2) neither the policy itself nor the MCS-90 endorsement referenced incorporation of the statutory definition. Gramercy and Rhodes additionally recognized that adopting the “statutory employee” definition would effectively reduce coverage, and upset the expectations of the contracting parties. The circumstances here are the same, and the reasoning set forth in those cases persuades this Court.2
Several cases upon which NCIC relies where courts incorporated the federal “statutory employee” definition are distinguishable. In one, the Fifth Circuit affirmed the district court’s finding that the broader FMCSR “statutory employee” definition applied to a policy, triggering the application of the policy’s employee exclusions. See Consumers Cnty. Mut. Ins. Co. v. P.W. & Sons Trucking, Inc., 307 F.3d 362, 366-67 (5th Cir. 2002). Unlike here, however, the Fifth Circuit noted that the relevant policy did not otherwise define the term “employee.” Id. at 364 n.2. The two other primary cases that NCIC relies upon similarly fail to indicate that the underlying policies included any definition of “employee.” See Canal Ins. v. A & R Transp. & Warehouse, LLC, 357 Ill. App. 3d 305, 827 N.E.2d 942, 293 Ill. Dec. 61 (Ill. App. Ct. 2005); Perry v. Harco Nat’l Ins. Co., 129 F.3d 1072 (9th Cir. 1997).
Indeed, NCIC identifies just one case in which a court adopted the federal “statutory employee” definition over a policy’s existing definition. See Miller v. Northland Ins. Co., No. M2013-00572-COA-R3CV, 2014 Tenn. App. LEXIS 248, 2014 WL 1715076, at *4 (Tenn. Ct. App. Apr. 29, 2014). This lone Tennessee state court case, though, goes against the weight of persuasive authority. Moreover, the opinion contains nothing suggesting flaws in the reasoning of the other courts.

C. The Exclusions Do Not Apply As a Matter of Law
This Court’s analysis, however, does not end with the inapplicability of the federal “statutory employee” definition, because [*13] NCIC’s argument in favor of non-coverage depends entirely upon a finding that the federal “statutory employee” definition applies when interpreting the two exclusions, see generally [77]; [84]; [86]. This comes as no surprise where the parties do not dispute that Harpreet and Sumeet were independent contractors to DLL at the time of Harpreet’s injury. NCIC itself repeatedly characterizes them as such. See, e.g., [77] at 10; [78] ¶ 35 (asserting that Harpreet and Sumeet were “independent-contractor drivers to DLL”).
In its motion, NCIC does not argue that independent contractors fit within the Policy’s definition of “employee.” Nor could it, because, absent incorporation of the “statutory employee” definition, the contract is clear and unambiguous on this point. Applying the Policy as written, and giving the Policy’s provisions their “plain, ordinary, and popular meaning,” see Wehrle, 719 F.3d at 843, this Court finds as a matter of law that the term “employee” as defined and used in the Policy does not include independent contractors like Harpreet and Sumeet. As such, the exclusions upon which Plaintiff wholly bases its motion do not preclude coverage. Accordingly, this Court denies NCIC’s motion.3

IV. Conclusion [*14]
This Court denies NCIC’s motion for summary judgment [76]. All dates and deadlines stand.
Dated: August 14, 2018
Entered:
/s/ John Robert Blakey
John Robert Blakey
United States District Judge

Neutral As of: August 24, 2018 1:17 PM Z
Childress v. Goodloe Marine, Inc.
United States District Court for the District of Maryland
August 9, 2018, Decided; August 9, 2018, Filed
CIVIL NO. JKB-16-2884

Reporter
2018 U.S. Dist. LEXIS 135050 *; 2018 WL 3818804
ROGER DALE CHILDRESS, II, Plaintiff v. GOODLOE MARINE, INC., et al., Defendants.
Prior History: Childress v. Goodloe Marine, Inc., 2018 U.S. Dist. LEXIS 120466 (D. Md., July 19, 2018)

MEMORANDUM
Plaintiff Roger Dale Childress, II, brought this diversity action against Defendants Goodloe Marine, Inc., and its employee Benton Goodloe Jr. (“Boomer”), asserting two counts of negligence in regard to an incident when Plaintiff was harmed by pipes that fell off his flatbed tractor trailer. Defendants have moved for summary judgment on both counts (ECF No. 75), and that motion is fully briefed and ripe, (ECF Nos. 78, 80). No hearing is necessary to resolve the matter. See Local Rule 105(6) (D. Md. 2016). Because Plaintiff was contributorily negligent, and because there is no genuine issue of material fact about that, summary judgment will be granted for Defendants on both counts. [*2] Defendants are entitled to judgment as a matter of law.

I. Background
Plaintiff was a truck driver and on Friday, September 5, 2014, he picked up a load of 16″ diameter plastic pipe in South Carolina. (Childress Dep. 232:20-233:8, 238:21, Opp’n Ex. A, ECF No. 78-3.) The load consisted of ten bundles of pipe, with three pipes in each bundle. (Id. 239:3-240:1.) Each bundle was banded together with “metal bands and . . . wood slats.” (Benton Goodloe, Jr. Dep. No. 2 at 15:6-7 (“Boomer Dep.”), Mot. Summ. J. Ex. 10, ECF No. 75-11.) They were loaded on Plaintiff’s flatbed trailer in the following manner: Two bundles were placed side-by-side to form a row. Each row was separated by a thin piece of wood. After two rows were laid down, Plaintiff secured them with straps. Then, after each additional row, Plaintiff would secure that row with straps, for a total of five rows secured by four sets of straps. (Childress Dep. at 243, 245:4-252:2; Boomer Dep. at 32:1-4.)
When Plaintiff picked up the load, he signed a document discussing safety issues related to loading and unloading this type of pipe (the “Safety Document”). (Childress Dep. at 263-64; Safety Document, Opp’n Ex. B, ECF No. 78-4.) The Safety [*3] Document stated “WARNING PIPE FALLING OFF THE TRUCK CAN KILL OR INJURE.” (Emphasis in original). It admonished the driver to “[r]ead and observe these UNLOADING GUIDELINES.” It warned, “NEVER GO TO THE OPPOSITE SIDE OF THE TRAILER WHEN UNLOADING EQUIPMENT IS MOVING NEAR THE TRUCK. Moving equipment could knock the load down on top of you. To avoid your own death or injury, tell the operator to stop moving and wait while you work on the other side of the load.” (Second emphasis added). It further warned, “IF A PERSON CANNOT BE SEEN, IMMEDIATELY STOP UNLOADING AND FIND THAT PERSON.” (Emphasis in original).1
Plaintiff delivered the load to Defendant Goodloe Marine in Ocean City, Maryland, on the morning of September 8, 2014. (Childress Dep. at 294:11-298:21.) Boomer, one of Goodloe Marine’s employees, was operating a John Deere Model 524K-II Loader with fork attachments—essentially a large fork lift. (Id. at 295-96.) While Boomer unloaded the pipes, the loader was on the passenger’s side of the trailer. (Id. at 305:21-306:1.)
The unloading process was as follows: Plaintiff removed the straps for the top layer by loosening them on the driver’s side, then walking to the passenger’s side and unhooking [*4] the straps, and finally by throwing the straps over to the driver’s side. (Childress Dep. at 301.) Plaintiff then stood 25 feet away from the end of the trailer, “where [he] could see [Boomer] and the loader.” (Id. 302:5-20.) Boomer then removed the top two bundles of pipe, i.e., the top row, starting with the passenger’s side bundle. (Id. 302:1-2.) They repeated this process for the top three layers, and unloaded the first six bundles of pipe without incident. Plaintiff then loosened the final straps (holding down the last two rows of pipes).
What happened next is in dispute. According to Plaintiff, he threw two of the three straps covering the final two rows over from the passenger’s side to the driver’s side, but when he threw the third strap, it did not clear the load and instead landed on top of the pipes. (Childress Dep. 308:3-7.) Plaintiff then walked around the back of the trailer to the driver’s side—the side opposite from the loader—to remove the strap that was on top of the load. (Id.) Plaintiff provides no evidence, and does not argue, that he told Boomer or anyone else at the unloading site before walking to the other side of the trailer. As he was standing next to the [*5] unsecured pipes on the driver’s side of the trailer, he heard Boomer blow his horn and the pipes fell on him. (Id. 308:7-8, 316:1-22.)
According to Defendants, Boomer blew his horn as he was approaching the trailer (according to Defendants, he had been blowing his horn each time he approached the trailer in order to warn Plaintiff (and others)). (See Mot. Summ. J. Mem. Supp. 13, ECF No. 75-1.) He then lifted the two unstrapped bundles on the passenger’s side of trailer, reversed the loader, and began to turn. (See Boomer Dep. at 98.) As he did so, he saw the two remaining bundles slide off the driver’s side of the trailer. (Id.) He then set the load down, turned off the loader, and went to investigate, thinking the pipe may have been damaged in the fall. (Id.) As he approached the trailer, he realized pipes had fallen on the Plaintiff. (Id.)
It is undisputed Plaintiff was injured by the pipes that fell on him. He brought this action against Goodloe Marine and Boomer seeking compensation for those injuries. Specifically he brought two claims of negligence: one count against Goodloe Marine for its own negligence as well as its liability for Boomer’s negligence under a theory of respondeat [*6] superior, and one count against Boomer individually. Before the Court is Defendants’ motion for summary judgment.
Before considering the substance of that motion, however, the Court would be remiss in failing to explain to the parties, particularly Defendants, what constitutes an “undisputed fact.” Undisputed facts are pieces of information, drawn from the evidence developed so far in the case, that are not disputed, i.e., that neither party contends is untrue. According to Defendants’ “Undisputed Statement of Facts,” the following are pieces of information both parties agree are true: it was a “cloudy, windy, and misty morning,” when Plaintiff dropped off the pipes at Goodloe Marine; “[a]t no time did Plaintiff give any of the paperwork he received from Georg Fischer/Independent Pipe to Boomer”; Plaintiff was “rolling up his straps” when he was injured. (Mot. Summ. J. Mem. Supp. at 1-15.) This is only a sample of various purported facts, characterized by Defendants as “undisputed,” that are clearly and explicitly disputed by Plaintiff. (See Childress Dep. 300:6-11 (“Q: [. . . .] What was the . . . weather like when you arrived . . . ? A: Beautiful weather. Clear, sunny.”); id. 303:5 [*7] (“A: I gave him the unloading instructions.”); id. at 308:5-7 (“I went around, back around the trailer to pull the strap, the hook off the top of the load.”). Incredibly, according to Defendants it is undisputed that “Mr. Childress was contributorily negligent.” (Mot. Summ. J. Mem. Supp. at 3.) Counsel should be aware: an averment that a fact is “undisputed” is a representation to the Court.2

II. Standard and applicable law
“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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008).
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, because the parties are diverse and [*8] the amount in controversy is over $75,000. “In diversity actions, a district court applies the substantive law and choice of law rules of the state in which the court sits.” Chartis Prop. Cas. Co. v. Huguely, 243 F. Supp. 3d 615, 622 (D. Md. 2017). This Court sits in Maryland and Plaintiff was harmed in Maryland, and therefore the Court will apply the substantive tort law of Maryland in analyzing Plaintiff’s claims. See id; Hauch v. Connor, 295 Md. 120, 453 A.2d 1207, 1209 (Md. 1983) (noting that under Maryland law, “the substantive tort law of the state where the wrong occurs governs”).

III. Analysis
Defendants make several arguments as to why summary judgment should be granted in their favor. According to Defendants, the undisputed facts show they were not negligent. They argue Plaintiff assumed the risk, and even despoiled evidence (although they do not squarely raise a spoliation argument in their opening brief). Like much of Defendants’ briefing, these arguments are ultimately irrelevant. That is because Defendants also contend Plaintiff was contributorily negligent, the Court agrees as a matter of law on the instant record, and, “[i]n Maryland, contributory negligence is a complete bar to recovery.” Leakas v. Columbia Country Club, 831 F. Supp. 1231, 1235 (D. Md. 1993) (citing Hooper v. Mougin, 263 Md. 630, 284 A.2d 236, 238 (Md. 1971)).
“Contributory negligence is the failure to observe ordinary care for one’s own safety. ‘It is the doing [*9] of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.'” Kasten Constr. Co. v. Evans, 260 Md. 536, 273 A.2d 90, 92 (1971) (quoting Potts v. Armour & Co., 183 Md. 483, 39 A.2d 552, 556 (Md. 1944)). Whether a plaintiff was contributorily negligent is often a question for the jury. See Menish v. Polinger Co., 277 Md. 553, 356 A.2d 233, 241 (Md. 1976); Campbell v. Baltimore Gas and Elec. Co., 95 Md. App. 86, 619 A.2d 213, 216 (Md. Ct. Spec. App. 1993). “The trial court may, however, take the issue of contributory negligence from the jury . . . when the undisputed facts of the case support such a finding as a matter of law.” Campbell, 619 A.2d at 216.
Contributory negligence and primary negligence are not two “sides of the same coin.” See AT&T Mobility LLC v. Tiptons’ Inc., Civ. No. JKB-16-3107, 2017 U.S. Dist. LEXIS 154939, 2017 WL 4222624, at *7 (D. Md. Sept. 21, 2017) (quoting Menish, 356 A.2d at 235-36). The defense of contributory negligence is not a question of whether the plaintiff breached a duty to the defendant. See id. Rather, it is a question of whether the plaintiff failed “to take proper precautions for [his] own safety.” Menish, 356 A.2d at 236 (internal quotation marks omitted).
If a plaintiff knowingly comes into contact or close proximity with a thing he knows is dangerous, and is thereby harmed, “it will be assumed as a matter of law that his own negligence contributed to the accident.” Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838, 842 (1985) (quoting Potomac Edison Co. v. State, 168 Md. 156, 177 A. 163, 166 (Md. 1935)). For example, in Liscombe, a truck driver dumped materials at a site where he knew there were low hanging [*10] electrical wires. 495 A.2d at 839. In the process of unloading, the driver raised his (metal) trailer bed and woke up in the hospital. Id. at 840. After the trial court found that he was contributorily negligent, he argued on appeal he did not know about prior accidents similar to his own, and he was unable to see the wires at the time because of the sun. Id. at 840-41. The Maryland Court of Appeals, however, found these facts immaterial. See id. at 841-42. What mattered was the truck driver knew of a dangerous thing, and did not exercise reasonable care in regard to that thing. The court explained, quoting Potomac Edison Co. v. State, 177 A. at 166, “where such a person voluntarily comes in contact with, or approaches nearer than a reasonably prudent person would, a wire or other thing which he knew, or, as a person of ordinary knowledge and experience, has reason to believe, is sufficiently charged with electricity to be dangerous, and in consequence of such contact or proximity is shocked and injured, it will be assumed as a matter of law that his own negligence contributed to the accident.” Id. at 842.
As Liscombe suggests, and other cases show, a plaintiff’s independent duty to take precautions for his own safety is not diminished by factors beyond his control, such as another [*11] person’s actions. See Campbell, 619 A.2d at 218. In Campbell, another electric wire case, the plaintiff was doing some roofing work and was assured by his supervisor that the area was free of electrical wiring. Id. at 215-18. The plaintiff and a coworker extended a ladder near a fence on the property, without noticing a 7,600 volt electrical distribution line above them. Id. at 215. When the ladder came into contact with the wire, the plaintiff was severely injured. Id. The Maryland Court of Special Appeals held that even if the plaintiff’s supervisor assured him the site was safe, his own negligence still contributed to his misfortune. Although a person “may rely on assurances of safety . . . where an ordinarily prudent person would do so,” the court explained that “such assurances do not relieve a person from the duty of caring for his own safety, and a person cannot rely on another’s assurances where he is aware of the danger involved or where the danger is obvious enough that an ordinarily prudent person would not so rely.” Id. at 218 (quoting Erdman v. Johnson Bros., 260 Md. 190, 271 A.2d 744, 751 (Md. 1970)).
Before turning to the application of contributory negligence in the case at bar, there are two additional aspects of the doctrine worth highlighting. First, a court may properly consider whether [*12] the plaintiff had “reasonable alternative[s]” safer than the course of action he took. Craig v. Greenbelt Consumer Servs., Inc., 244 Md. 95, 222 A.2d 836, 837 (Md. 1966). In Craig, a plaintiff slipped on some sawdust at a grocery store. Id. She “testified that she saw the sawdust in the aisle and that she knew it to be slippery, yet she, without hesitating to plan her course, intentionally walked into the sawdust when she had a reasonable alternative of walking on the section of the aisle which was clear.” Id. The Maryland Court of Appeals affirmed the trial court’s finding that she was contributorily negligent. Id. at 838. Second, when considering whether a plaintiff was contributorily negligent, the Court may consider, as it would in an assessment of primary negligence, industry standards, warning signs and so forth; but the Court is not required to turn a blind eye to common sense. See Reid v. Washington Overheard Door, Inc., 122 F. Supp. 2d 590, 594 (D. Md. 2000). “The Maryland courts have not hesitated to find a plaintiff contributorily negligent as a matter of law where common experience reveals the foreseeable dangers of the plaintiff’s actions.” Id. (citing cases).
With these principles in mind, the Court finds Plaintiff was contributorily negligent as a matter of law. At the outset, it is important to highlight what does not bear on the issue [*13] of Plaintiff’s contributory negligence. Whether or not Boomer or any other employee of Goodloe Marine was negligent is irrelevant. Nor does it matter whether Boomer primarily caused the pipes to fall on Plaintiff, nor whether Plaintiff caused Boomer to act in a certain way that caused the pipes to fall. The issue of Plaintiff’s contributory negligence instead presents questions about Plaintiff’s regard for his own safety: did he do, or not do, some thing (or things) that a reasonably prudent person would, or would not have done; and did these actions place him in danger and result in him being harmed? The answer to both questions is yes.
Plaintiff unstrapped four bundles of piping and then, without telling anyone, walked to the opposite side of the trailer from the loader and stood directly next to the unsecured pipes. Perhaps Boomer should have immediately ceased unloading. Perhaps another Goodloe Marine employee should have waved for Boomer to stop. Perhaps Boomer and Goodloe Marine breached no duty and Plaintiff himself somehow caused the pipes to fall. None of this is of any moment because, considering Plaintiff’s own testimony and the safety documentation he was provided, Plaintiff [*14] voluntarily came into contact or close proximity with a thing he knew was dangerous and was thereby harmed. See Liscombe, 495 A.2d at 842. Thus, “it will be assumed as a matter of law that his own negligence contributed to the accident.” Id. (quoting Potomac Edison Co. v. State, 177 A. at 166).
Put differently, Plaintiff was made aware of the danger attendant to unloading these pipes, and his independent duty to take precautions in the face of that danger was not diminished by Boomer’s actions. Before delivering the load of pipes, Plaintiff signed (and, therefore, presumably read) a document that stated “WARNING PIPE FALLING OFF THE TRUCK CAN KILL OR INJURE,” and “NEVER GO TO THE OPPOSITE SIDE OF THE TRAILER WHEN UNLOADING EQUIPMENT IS MOVING NEAR THE TRUCK.” (Emphasis in original). According to his own testimony and argument, he then unstrapped bundles of pipe, walked to the opposite side of the trailer from the loader, and stood next to two unsecured bundles of pipe during the unloading process. It is undisputed he did not approach Boomer and explain why he was going to the other side of the trailer, or ask Boomer to stop unloading, even though the Safety Document admonished the Plaintiff to “tell the operator to stop moving and wait while you work [*15] on the other side of the load.” According to Plaintiff’s own testimony and argument, he did not do this because he assumed Boomer would not be foolish enough to continue unloading when Plaintiff was out of eyesight. But the actions of another, even their assurances of safety in a given situation “do not relieve a person from the duty of caring for his own safety, and a person cannot rely on another’s assurances when he is aware of the danger involved.” Campbell, 619 A.2d at 218 (quoting Erdman, 271 A.2d at 751). In ignoring explicit warnings and apparent danger in favor of the assumption that Boomer would act with due care, Plaintiff failed to exercise reasonable caution, and was harmed as a result.
Finally, the availability of reasonable alternative courses of action and some common sense reinforce the Court’s conclusion that Plaintiff was contributorily negligent. The parties exert too much energy disputing why Plaintiff went to the driver’s side of the trailer. According to Defendants, he was an overworked employee of a careless trucking company, trying to rush a job by wrapping up his straps before all the pipes were unloaded. Plaintiff tells a different story, in which he was simply doing his job and helping the process along [*16] by removing a stuck strap. But the parties’ significant focus on why ignores the more legally weighty discussion of how. Regardless of why Plaintiff went to the driver’s side of the trailer after unstrapping the final load, Plaintiff had at least one reasonable alternative course of action: he could have told Boomer what he was doing before trying to remove (or roll up) the strap. Not only could he have done this, it appears he was instructed to do this. (See Safety Document (warning Plaintiff to “tell the operator to stop moving and wait while you work on the other side of the load”).)
Moreover, the Court need not rely entirely on the Safety Document; common sense suggests that some communication with Boomer (or somebody) would have been prudent. Although not everyone has driven a tractor-trailer with a load of thirty 16″ diameter pipes, it is not altogether uncommon to use straps to secure items—perhaps a mattress, or a canoe—to a car or trailer. Even under those relatively low-stakes conditions, if, while unloading, you notice a strap is caught in some manner you would likely say something, or at least wave to the other person (or persons) helping you unload the mattress or canoe—so [*17] that the other person wouldn’t take some unexpected action that would cause the load to shift or fall on you. This is just common sense. Plaintiff was dealing with a load much heavier, more dangerous, and more unstable than such ordinary items, and he does not present evidence that he signaled to anyone at Goodloe Marine before walking to the opposite side of the trailer to “pull the strap . . . off the top of the load.” (Childress Dep. 308:6-7.) Plaintiff even suggests that the location of the strap may have prevented Boomer from unloading the pipe. (See Opp’n at 20 (“It should go without saying that a strapped load cannot be unloaded while still strapped.”).) If that were the case (and it is not entirely clear Plaintiff asks the Court to make such an inference), it only bolsters the Court’s finding that common sense dictates Plaintiff should have said something to Boomer. Whatever Boomer’s mistakes (if any), an ordinary prudent person in Plaintiff’s situation would not have bet his safety on the assumption that a person he previously had never met would exercise proper caution. Rather, such a person would have signaled in some manner that the strap was stuck (if it was). Plaintiff [*18] did not do so, and for this and the other reasons explained above he was contributorily negligent as a matter of law.

IV. Conclusion
The undisputed facts show that Plaintiff was contributorily negligent, and therefore, by accompanying order, summary judgment will be granted for Defendants on both Counts and the Clerk will be directed to close the case.
DATED this 9th day of August, 2018.
BY THE COURT:
/s/ James K. Bredar
Chief Judge

ORDER
In accordance with the foregoing memorandum, IT IS HEREBY ORDERD:
1. Defendants’ motion for summary judgment (ECF No. 75), pursuant to Federal Rule of Civil Procedure 56, is GRANTED.
2. Summary judgment IS GRANTED for Defendants on all counts.
3. The Clerk SHALL CLOSE the case.
DATED this 9th day of August, 2018.
BY THE COURT:
/s/ James K. Bredar
Chief Judge