Bits & Pieces

United States District Court, D. Colorado.

Jorge CARDENAS, and Patricia Michel, Plaintiffs,

v.

Carl MOODY, and J.B.C. INC., Defendants.

Civil Action No. 23-cv-01048-RM-JPO

|

Signed March 25, 2024

Attorneys and Law Firms

Gregory Paul Murphy, Metier Law Firm, LLC, Fort Collins, CO, for Plaintiffs Jorge Cardenas, Patricia Michel.

Jeffrey D. Clarke, Robert Alan Weiner, Hall & Evans LLC, Denver, CO, for Defendants Carl Moody, J.B.C. Inc.

ORDER

RAYMOND P. MOORE, Senior United States District Judge

*1 This auto negligence action is before the Court on Defendants’ Motion for Judgment on the Pleadings (ECF No. 24), seeking dismissal of Plaintiffs’ claim against Defendant J.B.C. Inc. (“JBC”) for negligent hiring, training, and supervision. The Motion has been fully briefed (ECF Nos. 26, 28) and is granted for the reasons below.

I. LEGAL STANDARD

“Judgment on the pleadings is appropriate only when the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012) (quotation omitted). A motion for judgment on the pleadings is reviewed under the same standards as a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003). Accordingly, the Court must assess whether the complaint is legally sufficient to state a claim for which relief may be granted. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014). To defeat dismissal of a claim, the complaint must allege a “plausible” right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007). The plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or 12(c), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). However, conclusory allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009), and courts “are not bound to accept as true a legal conclusion couched as a factual allegation,” Twombly, 550 U.S. at 555 (quotation omitted).

II. BACKGROUND

*2 According to the Complaint, Plaintiffs were injured in an auto accident caused by Defendant Moody’s negligence. (ECF No. 3, ¶¶ 29, 30.) At the time of the accident, Defendant Moody was employed by JBC, driving JBC’s truck, and acting in the course and scope of his employment. (Id. at ¶¶ 7, 8.) As a commercial motor vehicle operator, JBC certified it would comply with and be subject to the Federal Motor Carrier Safety Regulations (“FMCSR”). (Id. at ¶ 9.) As pertinent to the Motion, Plaintiffs’ negligent hiring, training, and supervision claim against JBC is supported by the following allegations:

31. A reasonably prudent carrier in the position of Defendant JBC would have a training program that is vetted, selected, implemented, monitored, and maintained in a manner that ensures that all drivers know how to safely operate their rigs in accordance with the FMCSA, including always obeying the rules of safe winter driving.

32. A reasonably prudent carrier in the position of Defendant JBC would ensure lasting compliance with its training program, through incentives and/or continuing requirements for drivers.

33. A reasonably prudent carrier in the position of Defendant JBC would exercise reasonable care in its hiring, training, retention, and supervision of tis drivers, including Defendant Moody.

34. Defenant JBC had a duty to act as a reasonably prudent motor carrier.

35. Defendant JBC breached this duty when it did not ensure that at least one of its drivers, Defendant Moody, would safely operate his rig in accordance with the FMCSR and follow the rules of safe winter driving.

36. Upon information and belief, Defendant JBC further breached its duty by failing to exercise reasonable care in its hiring, training, supervision, and/or retention of Defendant Moody.

(Id. at ¶¶ 31-36.)

In addition to their negligent hiring, training, and supervision claim against JBC, Plaintiffs assert a claim for negligence per se against Defendant Moody and claims for negligence and loss of consortium against both Defendants. The Motion is directed solely at the claim for negligent hiring, training, and supervision.

III. ANALYSIS

Defendants argue that the essence of Plaintiffs’ claim for negligent hiring, training, or supervision “is simply that because the accident happened, JBC is liable,” and therefore the Complaint contains insufficient factual support to state a plausible claim. The Court agrees that Plaintiffs’ allegations do not state a plausible claim.

Although there is significant overlap between claims for negligent hiring, training, and supervision, the Court analyzes them separately here in the interest of being thorough. Negligent hiring claims hinge on “the employer’s responsibility for the dangerous propensities of the employee, which were known or should have been known by the employer at the time of hiring, gauged in relation to the duties of the job for which the employer hires the employee.” Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1016 (Colo. 2006). Thus,

the lesson to be learned from a successful negligent hiring suit is that the employer should not have hired the employee in light of that person’s dangerous propensities or, having hired him or her, must exercise that degree of control over the employee necessary to avert that employee from injuring persons to whom the employer owed the duty of care when making the hiring decision.

Id. Yet the Complaint lacks any factual allegations that JBC knew or should have known when it hired Defendant Moody that his use of its truck would pose an unreasonable risk of harm to anyone. They allege no facts concerning Defendant Moody’s driving history or characteristics to support a reasonable inference that he was an incompetent driver when JBC hired him. Nor do Plaintiffs allege that JBC failed to conduct an appropriate inquiry into Defendant Moody’s background or follow up on any apparent issues in connection with his hiring or that a more searching inquiry would have revealed he had dangerous propensities. See Moses v. Diocese of Colo., 863 P.2d 310, 328 (Colo. 1993) (noting that “expanded inquiry” into an employee’s background may be required based on the nature of the employment); cf. Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1322 (Colo. 1992) (declining to impose upon the employer the duty to search for and review official records of a job applicant’s criminal history “in the absence of circumstances antecedently giving the employer reason to believe that a job applicant, by reason of some attribute of character or prior conduct, would constitute an undue risk of harm to members of the public”). “[T]he tort of negligent hiring does not function as an insurance policy for all persons injured by persons an employer hires.” Raleigh, 130 P.3d at 1017. The Court finds that the fact the accident occurred combined with the conclusory allegations above is insufficient to establish a plausible claim that JBC failed to exercise reasonable care in making the decision to hire Defendant Moody.

*3 “Negligent training claims require a plaintiff to prove that ‘the employer has a duty to prevent an unreasonable risk of harm to third persons to whom the employer knows or should have known that the employee would cause harm.’ ” Getzel v. ATS Specialized, Inc., No. 21-cv-02836-DDD-NRN, 2024 WL 446038, at *5 (D. Colo. Jan. 19, 2024) (quoting Keller v. Koca, 111 P.3d 445, 448 (Colo. 2005)). Again, the Complaint lacks allegations that JBC knew or should have known Defendant Moody presented some undue or unreasonable risk to third parties such as Plaintiffs. Nor do Plaintiffs make any factual allegations about the type of training Defendant Moody received, how it was deficient, or how it played a role in causing the accident.

Finally, negligent supervision claims require a plaintiff to establish “(1) the defendant owed the plaintiff a legal duty to supervise others; (2) the defendant breached that duty; and (3) the breach of the duty caused the harm that resulted in damages to the plaintiff.” Gilbert v.

U.S. Olympic Comm., 423 F. Supp. 3d 1112, 1145 (D. Colo. 2019) (quotation omitted). The lack of factual allegations that JBC knew or had reason to know that Defendant Moody, because of his qualities, was likely to harm others in view of the work entrusted to him is fatal to this claim as well. See Moses, 863 P.2d at 329 (stating that liability is premised on whether employer knows or should have known that an employee’s conduct would subject third parties to an unreasonable risk of harm). “In cases of negligent supervision[,] liability of the employer is predicated on the employer’s antecedent ability to recognize a potential employee’s attributes of character or prior conduct which would create an undue risk of harm to those with whom the employee came in contact in executing his employment responsibilities.” Keller, 111 P.3d at 448 (quotation omitted). The mere allegation that Defendant Moody’s negligence caused the accident, without more, is not enough to support a plausible inference that JBC was negligent in hiring, training, or supervising him. Nor does the allegation that Defendant Moody failed to follow the rules of safe winter driving and the FMCSR on the day of the accident support such an inference or move the needle Plaintiff’s favor.

IV. CONCLUSION

Based on the foregoing, the Court finds Defendants are entitled to dismissal of this claim, and therefore the Motion (ECF No. 24) is GRANTED.

All Citations

Slip Copy, 2024 WL 1257423

End of Document  

© 2024 Thomson Reuters. No claim to original U.S. Government Works.  

United States District Court, M.D. Georgia, Macon Division.

Anthony BUTLER, Plaintiff,

v.

Jose Alberto Cruz ADORNO, CTS National Corporation, and ACE American Insurance Company, Defendants.

No. 5:21-CV-182 (CAR)

|

Signed March 27, 2024

Attorneys and Law Firms

Timothy Joseph Boyd, Christy Crowe Childers, David Hamilton McCain, Macon, GA, for Plaintiff.

Matthew Peter Stone, Dustin S. Sharpes, Shawn N. Kalfus, Atlanta, GA, Timothy Roth, Cleveland, OH, for Defendants.

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO AMEND COMPLAINT

C. ASHLEY ROYAL, SENIOR JUDGE

*1 This case stems from the collision of two tractor-trailers. Defendant Jose Alberto Cruz Adorno, driving a tractor-trailer under dispatch for Defendant CTS National Corporation, rear-ended Plaintiff Anthony Butler, driving a tractor-trailer for UPS Ground Freight, Inc.¹ Defendant ACE American Insurance Company insured Defendant CTS. Before the Court are Defendants’ Motions for Summary Judgment. Having read and considered the Motion, the record in this case, the applicable law, and the parties’ arguments, the Court HEREBY GRANTS in part and DENIES in part Defendants’ Motions for Summary Judgment [Docs. 50, 52] and DENIES as moot Plaintiff’s Motion to Amend Complaint [Doc. 57].

BACKGROUND

On May 5, 2019, around 11:14pm, Defendant Jose Alberto Cruz Adorno² rear-ended Plaintiff Anthony Butler.³ At the time of the collision, Defendant Adorno was driving a tractor and hauling an empty tanker-trailer under dispatch for Defendant CTS National Corporation,⁴ and Plaintiff was driving a fully loaded tractor-trailer under dispatch for UPS Ground Freight, Inc.⁵ Defendant ACE American Insurance Company is the insurer for Defendant CTS National.⁶

After stopping at a Pilot Travel Center for a few hours, Plaintiff left and entered the on-ramp for Interstate 75 North.⁷ It was dark, and the roads were dry.⁸ As Plaintiff merged onto I-75 at exit 146 he noticed his tractor-trailer was not picking up speed.⁹ The exact speed Plaintiff was driving is in dispute. Defense expert James Hrycay opined Plaintiff never exceeded 21.7 miles per hour.¹⁰ Plaintiff denies he drove 21.7 miles per hour but admits he was going less than 40 miles per hour.¹¹ Plaintiff testified that by the time he noticed a problem with the truck’s speed, Adorno had collided into the rear of his vehicle.¹² Thus, Plaintiff contends he had no time to activate his four-way flashers.¹³ Adorno testified he was driving 65 miles per hour in the right lane of I-75 when he saw Plaintiff’s vehicle in his lane of travel and attempted to avoid it, but could not.¹⁴ The collision happened near mile marker 147, approximately half a mile to one mile from where Plaintiff entered the interstate.¹⁵ Both men were transported to the hospital after the collision.

I. Adorno’s Employment with CTS

*2 Defendant Adorno had two periods of employment with Defendant CTS. Adorno first worked for CTS from August 2018 until December 2018.¹⁶ Adorno owned the tractor he drove while employed at CTS, so he could not work when it was inoperable for maintenance reasons.¹⁷ Thus, when his motor blew in December 2018, he did not return until it had been repaired.¹⁸ Adorno then returned to CTS at the end of April of 2019 and worked for approximately six days until the accident occurred.¹⁹ After the accident, Adorno’s tractor was totaled, and he did not return to work for CTS.²⁰

CTS employs a third-party company that performs background checks and verifies past employment for prospective hires.²¹ CTS also obtains and reviews a motor vehicle report going back seven years.²² Before hiring Adorno in August 2018, Adorno’s records revealed two incidents: one ticket in 2015 for speeding in a non-commercial vehicle and one citation in 2017 for hauling a trailer with an inoperative slack adjuster.²³ CTS reviewed these violations and found they did not disqualify Adorno from the position.²⁴ Adorno had also been involved in one previous accident in 2008 while employed by CPC Logistics, where he rear-ended a vehicle that passed him then stopped in front of him to turn left.²⁵ But the 2008 accident was not on the motor vehicle record CTS reviewed, and they did not know about it until after this subject accident.²⁶

CTS requires its drivers to have two years of driving experience, and it provides training which includes a written test on the Federal Motor Carrier Safety Regulations, training using the Smith System, and a road test.²⁷ When Adorno came back to work for CTS in April 2019, CTS re-ran his background check but did not require him to redo his initial training because it was less than one year from when he initially received it.²⁸

II. State Court Litigation

In July 2020, Adorno filed a lawsuit against Plaintiff, Plaintiff’s employer UPS, and UPS’s insurer in the State Court of Gwinnett County, Georgia for his injuries arising from the accident.²⁹ Plaintiff’s attorney answered and moved to dismiss for improper venue or, in the alternative, to transfer to the State Court of Houston County.³⁰ On September 9, 2020, Gwinnett County State Court entered a consent order finding venue was improper and granting the motion to transfer to Houston County.³¹ The Gwinnett Order further required Adorno to “pay all accrued court costs within 20 days of mailing or delivery of the cost bill,” lest the action be automatically dismissed without prejudice pursuant to Uniform State Court Rule 19.1(F) and Uniform Transfer Rule 10.³² On September 22, 2020, Adorno dismissed his claims with prejudice in the Gwinnett County case.³³ There is no evidence in the record that Adorno ever paid the court costs required to transfer, or that the transfer to Houston County was ever effectuated. Thus, when Adorno voluntarily dismissed the case before the payment deadline, the case ended.

III. Current Litigation

*3 Plaintiff filed suit in the Superior Court of Peach County against Defendants alleging negligence claims against Adorno; vicarious liability claims and direct liability claims for negligent hiring, retention, training, supervision, and failure to ensure proper maintenance against CTS; and a direct-action claim against ACE American. Defendants properly removed to this Court and now seek summary judgment on all claims.

LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted “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.”³⁴ A genuine issue of material fact only exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”³⁵ Thus, summary judgment must be granted if there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving party or, in other words, if reasonable minds could not differ as to the verdict.³⁶ When ruling on a motion for summary judgment, the court must view the facts in the light most favorable to the party opposing the motion.³⁷

The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact” and that entitle it to a judgment as a matter of law.³⁸ If the moving party discharges this burden, the burden then shifts to the nonmoving party to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact.³⁹ This evidence must consist of more than mere conclusory allegations or legal conclusions.⁴⁰

DISCUSSION

The Court first addresses Defendants’ argument that Plaintiff’s negligence claims against Defendant Adorno and his vicarious liability claims against Defendant CTS are barred by the compulsory counterclaim rule. Second, the Court examines Plaintiff’s direct liability claims against Defendant CTS for negligent hiring, retention, training, and supervision, and failing to ensure proper maintenance. Third, the Court evaluates Plaintiff’s claim against Defendant ACE American under Georgia’s direct-action statute. Finally, the Court addresses whether Plaintiff was negligent per se.

I. Plaintiff’s Claims Against Adorno and His Vicarious Liability Claims Against CTS Are Not Barred by the Compulsory Counterclaim Rule

Defendants argue they are entitled to summary judgment on Plaintiff’s negligence claims against Adorno and Plaintiff’s vicarious liability claims against CTS because they are compulsory counterclaims he failed to assert in his previous state court lawsuit. The Court disagrees.

“[A] party may not raise issues arising out of the same transaction which should have been pled as a compulsory counterclaim in another separate suit. If the first suit is completed, then res judicata serves to bar proceeding with the second action.”⁴¹ Georgia’s statute on compulsory counterclaims states:

*4 A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if … the claim is not within the jurisdiction of the court.⁴²

“When [a court is] asked to give res judicata effect to a state court judgment, [the court] must apply the res judicata principles of the law of the state whose decision is set up as a bar to further litigation.”⁴³ Because Defendants contend a Georgia case bars Plaintiff’s claims against Defendant Adorno and the vicarious liability claims against Defendant CTS, Georgia res judicata principles apply. Georgia’s res judicata statute states:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.⁴⁴

The three requirements for res judicata to apply are: (1) identical causes of action, (2) identical parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.⁴⁵

Plaintiff’s counterclaims were not compulsory because venue was improper in Gwinnett County. Under Georgia law, when venue as to defendants is improper, “the court is without personal jurisdiction to enter a binding judgment on the merits against the nonresident defendants.”⁴⁶ “[A] counterclaim is not compulsory when there is no jurisdiction.”⁴⁷ The judge in the Gwinnett County case granted Plaintiff Butler’s motion to transfer venue and ruled “venue for this case cannot lie in Gwinnett County ….”⁴⁸ Because the state court lacked jurisdiction over Plaintiff Butler, he was not required to assert his counterclaims. Thus, the Gwinnet County case is not a previous adjudication on the merits by a court of competent jurisdiction, and res judicata does not bar Plaintiff’s claims against Adorno or CTS.⁴⁹

II. Plaintiff’s Direct Liability Claims Against CTS Fail to Raise Genuine Issues of Material Fact

A. Negligent Hiring and Retention

*5 Under Georgia law, “[t]he employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency.”⁵⁰ Thus, “an employer may be liable for hiring or retaining an employee the employer knows or in the course of ordinary care should have known was not suited for the particular employment.”⁵¹ “[L]iability for negligent hiring or retention requires evidence that the employer knew or should have known of the employee’s propensity to engage in the type of conduct that caused the plaintiff’s injury.”⁵² Accordingly, Georgia courts have “granted summary judgment to employers when there is no evidence that the employer knew of violations on the employee’s driving record or ignored its own reasonable policy of investigating such records, and denied summary judgment when there is evidence that the employer knew of such violations on the employee’s record.”⁵³ “Whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case.”⁵⁴

Plaintiff’s negligent hiring and retention claims fail to raise a genuine issue of material fact. There is no evidence that CTS knew Adorno had been in another rear-end collision at the time he was hired.⁵⁵ The 2008 accident was not included on the seven-year motor vehicle report, nor did the third-party company that performed background checks and verified past employment discover it.⁵⁶ There is no evidence CTS failed to follow the minimum requirements set by the Federal Motor Carrier Safety Regulations (“FMCSRs”), and in fact, there is evidence CTS went beyond them by obtaining Adorno’s motor vehicle record for the preceding seven years rather than the three years required by the FMCSRs.⁵⁷ The FMCSRs only require an employment application to request information on employers and accidents for the previous three years, which CTS did.⁵⁸ Thus, even though CTS investigated farther back than was required, it did not uncover the 2008 accident because it occurred ten years before he was initially hired by CTS.

Plaintiff argues that CTS would have discovered the prior accident if it had called Adorno’s prior employer, CPC Logistics, but this is speculative. Adorno was last employed by CPC in 2012, six years before he applied to CTS, and there is no guarantee that calling CPC would have produced this information. Moreover, without knowing more information about the 2008 accident, it is unclear whether it would have prohibited Adorno from being hired.⁵⁹ In fact, Plaintiff’s trucking standards expert Adam Grill had no criticisms of CTS’s hiring of Adorno.⁶⁰

Plaintiff criticizes CTS for not investigating Adorno’s prior employment or accident history when he was re-hired, but even if CTS ran the background checks on Adorno anew there is no evidence the outcome would have changed. The 2008 accident was still too remote to be discovered by CTS’s hiring procedures. Thus, there is no evidence that CTS knew or should have known about the 2008 accident prior to hiring him or after retaining him.⁶¹ Nor is there any evidence that CTS’s hiring procedures “were faulty or not reasonable under the circumstances.”⁶² Thus, the Court GRANTS Defendants’ Motion for Summary Judgment as to the negligent hiring and retention claims.

B. Negligent Training and Supervision

*6 “To establish a negligent training claim, a plaintiff must demonstrate that inadequate training caused a reasonably foreseeable injury.”⁶³ To defeat summary judgment on negligent supervision, a plaintiff must show “there is sufficient evidence to establish the employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff.”⁶⁴

Because Plaintiff fails to raise genuine issues of material fact on his negligent training and supervision claims, the Court need not decide whether he failed to assert them in his Complaint.⁶⁵ Before beginning his employment, CTS required Adorno to take a written test on the FMCSRs; complete training including on-road Smith System defensive driving training in which his performance was “exceptional;” and take a road test in which his performance was “outstanding.”⁶⁶ Plaintiff’s expert Adam Grill identifies areas where CTS inadequately trained Adorno, including night driving and speed and space management. But as explained in the Court’s Order on the parties’ Daubert motions, Adam Grill’s testimony that CTS inadequately trained Adorno is excluded because of his lack of reliable data and methodology. Further, there are no federal regulations or other authority that mandate such training, however helpful it may be. With Grill’s testimony excluded, Plaintiff is left without any evidence supporting his negligent training claim. Nor is there sufficient evidence, as discussed above, to demonstrate CTS knew or should have known about Adorno’s 2008 accident to support Plaintiff’s negligent supervision claim. Thus, the Court GRANTS Defendants’ Motion for Summary Judgment as to the negligent training and supervision claims.

C. Failing to Ensure Proper Maintenance

Nothing in the record suggests Defendant CTS was negligent in failing to ensure the vehicle was properly maintained and inspected.⁶⁷ There is no evidence the tractor-trailer driven by Adorno was defective in any way, nor any evidence that improper maintenance of the tractor-trailer caused Plaintiff’s injuries. Thus, the Court GRANTS Defendants’ Motion for Summary Judgment as to the negligent maintenance and inspection claim.

III. Plaintiff’s Direct-Action Claim Against ACE American Does Not Fail as a Matter of Law

Georgia’s direct-action statute allows a plaintiff to join both the motor carrier and insurance carrier in the same action.⁶⁸ To maintain a cause of action against an insurer, the plaintiff must have an “actionable injury.”⁶⁹ “And ‘actionable injury’ means an injury to a person who could sue the motor carrier and obtain a judgment for his injuries.”⁷⁰

*7 Defendant ACE American is not entitled to summary judgment on Plaintiff’s direct-action claim because actionable claims against the insured party remain. Thus, the Court DENIES Defendants’ Motion for Summary Judgment as to Plaintiff’s direct-action claim.

IV. Genuine Issues of Material Fact Remain as to Plaintiff’s Negligence Per Se

Defendants argue Plaintiff was negligent per se because he violated two provisions of the Georgia Uniform Rules of the Road: O.C.G.A. § 40-6-184(a) and O.C.G.A. § 40-8-7(a). O.C.G.A § 40-6-184(a) states: “No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.” O.C.G.A. § 40-8-7(a) states: “No person shall drive or move on any highway any motor vehicle … unless … the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.”

“A violation of the Uniform Rules of the Road prima facie establishes negligence per se in the absence of a valid defense. The burden then shifts to the defendant to show that the violation was unintentional and in the exercise of ordinary care.”⁷¹ It is clear from the record that Plaintiff was driving below the minimum speed limit, and Plaintiff’s vehicle was not in proper working order based on its inability to pick up speed. Defendants argue this is sufficient to establish Plaintiff was negligent per se.⁷²

But a genuine dispute exists as to whether Plaintiff has a valid defense for operating his vehicle on the interstate at those low speeds. Both Plaintiff’s and Defendants’ trucking experts offer opinions about whether Plaintiff should have continued driving slowly until the nearest exit or pulled over and parked on the side of the highway. Thus, a reasonable jury could find Plaintiff had a valid defense and was justified in continuing. In Robinson v. Metropolitan Atlanta Rapid Transit Authority,⁷³ the Georgia Court of Appeals affirmed the trial court’s refusal to give a negligence per se instruction for a violation of O.C.G.A. § 40-8-7(a) when the vehicle had been serviced recently, and the “driver had no reason to suspect that anything was wrong with the vehicle before it broke down.”⁷⁴ Here, there is a genuine issue of material fact as to whether Plaintiff should have known something was wrong with the vehicle before merging onto the highway based on the conflicting testimony of Plaintiff and Defendants’ expert James Hrycay. Thus, the Court DENIES Defendants’ partial summary judgment as to Plaintiff’s negligence per se.

CONCLUSION

For the reasons set forth above, the Court HEREBY GRANTS IN PART and DENIES IN PART the Defendants’ Motions for Summary Judgment [Docs. 50, 52]. Specifically, the Court DENIES summary judgment for Defendants on Plaintiff’s claims against Adorno and vicarious liability claims against CTS; Plaintiff’s direct-action claim against ACE American; and Plaintiff’s negligence per se; and GRANTS summary judgment for Defendants on Plaintiff’s direct liability claims against CTS; and DENIES as moot Plaintiff’s Motion to Amend Complaint [Doc. 57].

*8 SO ORDERED, this 27th day of March, 2024.

All Citations

Footnotes  

1. In his deposition Defendant Adorno is identified using his first surname, “Cruz;” however, because the relevant motions identify him as “Adorno,” that is how the Court will identify him.
2. In his deposition Defendant Adorno is identified using his first surname, “Cruz;” however, because the relevant motions identify him as “Adorno,” that is how the Court will identify him.
3. Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment [Doc. 52-1 at 4]; Plaintiff’s Response and Brief in Opposition [Doc. 56 at 1].  
4. Defendants’ Statement of Undisputed Material Facts [Doc. 52-8 ¶¶ 1, 3].  
5. Plaintiff’s Complaint [Doc. 1 ¶ 5]; Doc. 52-8 ¶ 4.  
6. Plaintiff’s Deposition Transcript [Doc. 51-2 at 2].  
7. Id. at 66, 76.  
8. Adorno’s Deposition Transcript [Doc. 46-7 at 108]; Doc. 51-2 at 77.  
9. Doc. 51-2 at 83, 84.  
10. James Hrycay’s Expert Report [Doc. 46-1 at 35].  
11. Plaintiff’s Response to Defendants’ Statement of Undisputed Material Facts [Doc. 60 ¶ 9]; Doc. 51-2 at 87.  
12. Doc. 51-2 168–69.  
13. Id.
14. Deposition of Defendant Jose Alberto Cruz Adorno [Doc. 73 at 118].  
15. Doc. 51-2 at 82.  
16. Doc. 73 at 84; Defendant CTS’s 30(b)(6) Deposition [Doc. 46-9 at 104].  
17. Doc. 46-9 at 104–05; Doc. 73 at 89.  
18. Doc. 46-9 at 104–05; Doc. 73 at 89.  
19. Doc. 46-9 at 104, 117.  
20. Id. at 55, 117.  
21. Doc. 46-9 at 15, 102, 149–150.  
22. Id. at 102.  
23. Declaration of David Phillips [Doc. 52-2 ¶ 6]; Doc. 46-9 at 102; Doc. 73 at 141–42.  
24. Doc. 46-9 at 102; Doc. 52-2 ¶¶ 6, 7.  
25. Doc. 73 at 44–45.
26. Doc. 46-9 at 102.
27. Id. at 14–15.  
28. Id. at 118.  
29. Ex. 3 to Motion for Summary Judgment, Prior Complaint [Doc. 52-5 at 1].  
30. Ex. 4 to Motion for Summary Judgment, Prior Answer [Doc. 52-6 at 1]; Ex. A to Response to Motion for Summary Judgment, Motion to Transfer [Doc. 60-1 at 1].  
31. Ex. B to Response to Motion for Summary Judgment, Consent Order [Doc. 60-2 at 1].
32. Id. at 2.  
33. Ex. 5 to Motion for Summary Judgment, Dismissal [Doc. 52-7 at 1].  
34. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).  
35. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  
36. See id. at 249–52.  
37. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).  
38. Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted).  
39. See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324–26.  
40. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).  
41. Allstate Ins. Co. v. Welch, 259 Ga. App. 71, 73 (2003) (quoting First Fed. Sav. & Loan Ass’n of Detroit v. I.T.S.R.E., Ltd., 159 Ga. App. 861, 863 (1981)).  
42. O.C.G.A. § 9-11-13(a)(3).  
43. Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006)  
44. O.C.G.A. § 9-12-40.  
45. Coen v. CDC Software Corp., 304 Ga. 105, 109 (2018).  
46. Exum v. Melton, 244 Ga. App. 775, 776 (2000).  
47. EarthLink, Inc. v. Eaves, 293 Ga. App. 75, 78 (2008) (citing Lester v. Goodyear Tire & Rubber Co., 156 Ga. App. 171, 171 (1980)).  
48. Consent Order [Doc. 60-2 at 2].  
49. Moreover, even if Plaintiff’s claims against Adorno were barred by res judicata, they would not be barred against CTS for their liability under the doctrine of respondeat superior. Although a voluntary dismissal with prejudice acts as an adjudication on the merits, “the effect of a voluntary dismissal does not extend to any party not named therein.” Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 272 Ga. 209, 212 (2000). Thus, CTS would not be entitled to dismissal of Plaintiff’s claims because CTS was not a party to the earlier lawsuit.  O.C.G.A. § 34-7-20.  
50. Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 862 (2004).  
51. Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247 (11th Cir. 2001) (citing Alpharetta First United Methodist Church v. Stewart, 221 Ga. App. 748, 753 (1996)).  
52. W. Indus., Inc. v. Poole, 280 Ga. App. 378, 382 (2006).  
53. Munroe, 277 Ga. at 864 n.4.  
54. Plaintiff’s Response and Brief in Opposition to Defendants’ Motion for Summary Judgment [Doc. 56 at 16–17]; Doc. 52-2 ¶¶ 5, 6; Doc. 46-9 at 102.  
55. Doc. 46-9 at 15, 102, 149–150.  
56. 49 C.F.R. § 391.23(a)(1).  
57. 49 C.F.R. § 391.21(b)(7), (10); Doc. 52-2 ¶ 6.  
58. Doc. 46-9 at 54.  
59. Deposition of Adam Grill [Doc. 51-9 at 29].  
60. See Patterson v. Southeastern Newspapers, Inc., 243 Ga. App. 241, 245 (2000) (granting summary judgment when there was no evidence employer knew or should have known of employee’s bad driving record and there was no evidence employer’s hiring procedures were faulty); Cherry v. Kelly Servs., Inc., 171 Ga. App. 235, 235 (1984) (denying summary judgment to employer when employer knew of one traffic violation on employee’s record but did not investigate further).  
61. Patterson, 243 Ga. App. at 245.
62. ABM Aviation v. Prince, 366 Ga. App. 592, 598 (2023) (quoting Advanced Disposal Servs. Atlanta, LLC v. Marczak, 359 Ga. App. 316, 319 (2021)).
63. Leo v. Waffle House, Inc., 298 Ga. App. 838, 841 (2009) (quoting Alexander v. A. Atlanta Autosave, Inc., 272 Ga. App. 73, 77 (2005)).  
64. Defendants argue Plaintiff failed to assert a negligent training or supervision claim in his Complaint. Plaintiff counters that he is not required to plead every legal theory of recovery under the notice pleading standard of Federal Rule of Civil Procedure 8 and moves to amend his Complaint [Doc. 57].  
65. Doc. 52-2 ¶ 8; Doc. 46-9 at 15, 121, 139  
66. Doc. 46-9 at 121–22.  
67. O.C.G.A. § 40-1-112(c).  
68. Coleman v. B-H Transfer Co., 290 Ga. App. 503, 508 (2008).  
69. Id.
70. In/Ex Sys., Inc. v. Masud, 352 Ga. App. 722, 724 (2019) (quoting Harden v. Burdette, 204 Ga. App. 733, 735 (1992)).  
71. Plaintiff argues, among other things, that state law is impliedly pre-empted by FMCSR § 396.7(b). Because the Court is denying partial summary judgment on negligence per se, it does not address this argument on the merits. The Court can address any issues with Plaintiff offering evidence on this at trial through a motion in limine.  
72. 197 Ga. App. 628, 629 (1990).  
73. Robinson v. Metro. Atlanta Rapid Transit Auth., 197 Ga. App. 628, 629 (1990).  

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