United States District Court, N.D. Mississippi, Oxford Division.

Greg WINTER, individually, and on Behalf of All Wrongful Death Beneficiaries of Latricia Winter, Deceased, Plaintiff

v.

Tyrin COWART and DT Freight, LLC, Defendants

CIVIL ACTION NO. 3:23-CV-352-SA-RP

|

Signed October 23, 2024

Attorneys and Law Firms

James Ashley Ogden, Ogden and Associates, PLLC, Jackson, MS, for Plaintiff.

Carl K. Wyatt, Todd B. Murrah, Glassman Wyatt Tuttle & Cox, PC, Memphis, TN, for Defendants.

ORDER AND MEMORANDUM OPINION

Sharion Aycock, UNITED STATES DISTRICT JUDGE

*1 On August 10, 2023, Greg Winter, individually and on behalf of the wrongful death beneficiaries of Latricia Winter, initiated this lawsuit by filing his Complaint [2] in the Circuit Court of Marshall County, Mississippi. Winter named Tyrin Cowart; Blair Logistics, LLC; DT Freight, LLC; and Southeast Logistics & Transport as Defendants. The Defendants removed the case to this Court on September 11, 2023. Winter has since filed a Stipulation of Dismissal [71] as to Blair Logistics and Southeast Logistics & Transport, leaving only Cowart and DT Freight as Defendants.

Now before the Court is the Defendants’ Motion for Partial Summary Judgment [74]. The Motion [74] is ripe for review.

Relevant Background

This lawsuit stems from a fatal motor vehicle accident. The collision occurred on August 19, 2021 just prior to 6:00 AM on US Highway 72 in Marshall County, Mississippi. For reference, US Highway 72 is a four-lane highway with two lanes of eastbound traffic and two lanes of westbound traffic.

On the date in question, Tyrin Cowart was traveling westbound on US Highway 72 in a tractor-trailer. Although not an employee of DT Freight, Cowart was hauling a load for that entity. Cowart parked his tractor trailer on the right shoulder of the highway to check the load on his flat-bed trailer. Latricia Winter was also traveling westbound on US Highway 72 in a minivan on her way to work.

The collision between the two vehicles occurred when Cowart merged his truck back onto Highway 72 from the shoulder where he had been parked. Winter’s minivan struck the back of Cowart’s trailer. The collision occurred in the right lane of westbound traffic. Winter died at the scene.

This lawsuit followed. Greg Winter—Latricia Winter’s husband—brings the case on behalf of himself and all wrongful death beneficiaries. As to Cowart, Winter contends that Cowart acted negligently in multiple ways, such as failing to keep and maintain a proper lookout, failing to keep his vehicle under control, failing to maintain a proper distance from other vehicles, willfully disregarding the safety of others, failing to yield the right of way, failing to comply with the Federal Motor Carrier Safety Regulations and the applicable law, among others. Winter also asserts negligence claims against DT Freight, averring that it is vicariously liable for Cowart’s alleged negligent conduct. He also brings direct negligence claims against DT Freight for negligent hiring, negligent supervision, and failure to properly train.¹

Standard

*2 Summary judgment is warranted when the evidence reveals no genuine dispute regarding any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Nabors v. Malone, 2019 WL 2617240, at *1 (N.D. Miss. June 26, 2019) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

“The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.’ ” Id. (quoting Celotex, 477 U.S. at 323, 106 S. Ct. 2548). “The nonmoving party must then ‘go beyond the pleadings’ and ‘designate specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Celotex, 477 U.S. at 324, 106 S. Ct. 2548). Importantly, “the inferences to be drawn from the underlying facts contained in the affidavits, depositions, and exhibits of record must be viewed in the light most favorable to the party opposing the motion.” Waste Mgmt. of La., LLC v. River Birch, Inc., 920 F.3d 958, 964 (5th Cir. 2019) (quoting Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir. 1997)). However, “[c]onclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial.” Nabors, 2019 WL 2617240 at *1 (citing TIG Ins. Co. v. Sedgewick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)) (additional citations omitted).

Analysis and Discussion

The Defendants seek dismissal of some—but not all—of Winter’s claims. More specifically, the Defendants argue:

The Court should dismiss (1) the direct negligence claims against DT Freight; (2) the claims for emotional distress, including charges for past and future medical or counseling services provided to the wrongful death beneficiaries of Mrs. Winter; (3) the negligence claims based on Mr. Cowart’s failure to place warning triangles while his vehicle was stopped and his alleged violation of the minimum speed statute; and (4) the claim for punitive damages.

[75] at p. 2-3.

The Court will address each of these arguments in turn.

The Defendants first seek dismissal of Winter’s direct negligence claims against DT Freight. They argue that the direct negligence claims pertaining to DT Freight’s alleged negligent hiring, negligent supervision, and failure to train should be dismissed because DT Freight has admitted vicarious liability. In response, Winter states that he “will withdraw [his] claims of negligent supervision, negligent entrustment, negligent hiring, and any other independent, direct negligence claims against DT Freight as long as DT Freight stipulates it is vicariously liable for all Tyrin Cowart’s actions.” [114] at p. 3.

“The Courts of this state have consistently dismissed independent negligence claims against an employer who admits vicarious liability for an employee’s actions.” Roberts v. Ecuanic Exp., Inc., 2012 WL 3052838, at *2 (S.D. Miss. July 25, 2012) (citations omitted). This is because “once an employer has admitted that it is liable for an employee’s actions, evidence pertaining only to issues of negligent hiring, entrustment, supervision, or maintenance becomes superfluous and possibly unfairly prejudicial.” Id. (citing Lee v. Harold David Story, Inc., 2011 WL 3047500, at *1 (S.D. Miss. July 25, 2011)).

*3 The parties’ agreement on this issue is in accordance with the applicable case law. Since DT Freight has stipulated to vicarious liability for Cowart’s actions, Winter’s direct negligence claims against DT Freight are redundant. They are hereby DISMISSED.

Next, the Defendants seek dismissal of all claims for “emotional distress, including charges for past and future medical or counseling services provided to the wrongful death beneficiaries of Mrs. Winter.” [75] at p. 2-3. To support this argument, the Defendants contend that a wrongful death cause of action is statutory and that the available damages are therefore limited to those damages specifically contemplated in the wrongful death statute. The Mississippi Supreme Court has held that the damages available under this statute “include (1) the present net cash value of the life expectancy of the deceased, (2) the loss of the companionship and society of the decedent, (3) the pain and suffering of the decedent between the time of injury and death, and (4) punitive damages.” McGowan v. Estate of Wright, 524 So. 2d 308, 311 (Miss. 1988) (citing Jesco, Inc. v. Whitehead, 451 So. 2d 706, 710 (Miss. 1984)) (additional citations omitted).

In response, Winter clarifies that he is not attempting to make a direct claim for emotional distress but that such treatment is relevant to the loss of companionship and society portion of available damages. Winter contends that he “will only seek to use their treatment to support [the] claims for damages but will not submit the bills or costs as a separate form of recoverable damage.” [114] at p. 4.

Thus, it appears that the parties agree that these expenses are not separately recoverable. However, the Defendants contend that evidence pertaining to counseling services is not admissible, and they specifically note that they intend to file a motion in limine on that topic.

The Court will take up any issues pertaining to admissibility at the appropriate time. But for purposes of the present filing, any direct claims for emotional distress are hereby DISMISSED.

The Defendants also seek summary judgment as to “the negligence claims based on Mr. Cowart’s failure to place warning triangles while his vehicle was stopped and his alleged violation of the minimum speed statute[.]” [75] at p. 3.

Federal Motor Carrier Safety Administration Regulation § 392.22 mandates the placement of warning devices in certain situations:

(b) Placement of warning devices—

(1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by § 393.95 of this subchapter[.]

49 C.F.R. § 392.22 (emphasis added).

Here, the evidence indicates that Cowart was stopped for approximately 10 minutes and 39 seconds, thus exceeding the 10-minute threshold set forth in the Regulation. He also admits that he did not place any warning devices on the road, despite having them in his vehicle. He testified that he did not place the warning devices because he did not intend to be stopped for more than 10 minutes. Nonetheless, there is no dispute that Cowart did not comply with the Regulation.

*4 As to the minimum speed limit, the applicable statute provides as follows:

(1) No motor vehicle shall be driven at a speed less than thirty miles per hour on federal designated highways where no hazard exists. An exception to this requirement shall be recognized when reduced speed is necessary for safe operation, or when a vehicle or combination of vehicles is necessarily, or in compliance with law or police direction, proceeding at a reduced speed.

Miss. Code Ann. § 63-3-509(1).

Here, there is no dispute that Cowart was traveling less than 30 miles per hour at the time of the collision. However, he contends that he was permitted to do so as he was driving a tractor-trailer which necessarily takes a longer period of time than a standard sized vehicle to reach the speed of 30 miles per hour.

In his Response Memorandum [114], Winter asserts that he does “not seek to introduce these violations as a form of strict liability, but a part of the negligence claim showing a violation of a duty.” [114] at p. 4.

Candidly, the Complaint [2] itself is not clear as to whether Winter desired to impose a strict liability standard as to these violations. However, in light of his concession in the Response Memorandum [114], to the extent any such claim was asserted in the Complaint [2], it is hereby DISMISSED. To the extent that the present Motion [72] seeks any additional relief, such as a ruling precluding the introduction of evidence pertaining to these violations, summary judgment is not the appropriate avenue to seek such relief, and the request is denied.

Finally, the Defendants seek summary judgment on Winter’s claim for punitive damages. They contend that there is no evidence of the requisite level to warrant such damages and, furthermore, that punitive damages are unavailable on a theory of vicarious liability. The Defendants cite authorities for these positions; however, Winter’s Response Memorandum [114] specifically withdraws the punitive damages claim. Therefore, the Court sees no need to address the issue any further. Winter will not be permitted to seek punitive damages in this case. All such claims are hereby DISMISSED.

Conclusion

For the reasons set forth above, the Defendants’ Motion for Partial Summary Judgment [74] is GRANTED IN PART and DENIED IN PART.

SO ORDERED, this the 23rd day of October, 2024.

All Citations

Slip Copy, 2024 WL 4556985

Footnotes

1

As indicated above, the Complaint [2] also named Blair Logistics and Southeast Logistics & Transport as Defendants and asserted claims against those entities similar to those asserted against DT Freight. However, on August 14, 2024, the parties filed a Joint Stipulation of Dismissal [71] as to Blair Logistics and Southeast Logistics & Transport. The Stipulation [71] specifically provides that the dismissal of those parties “is based on Defendants’ representation that Defendant Cowart was an independent contractor with DT Freight, LLC at the time of the accident, and that the tractor trailer was being operated by Cowart on or about the business of DT Freight, LLC, and not Blair Logistics, LLC and Southeast Logistics & Transport.” [71] at p. 1. The Clerk of Court therefore terminated those parties as active Defendants in the case.

End of Document

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

United States District Court, D. Arizona.

Janice Louise MCCLEARY, et al., Plaintiffs,

v.

Narinder B. SINGH, et al., Defendants.

No. CV-24-08056-PCT-DWL, No. CV-24-08092-PCT-DWL

|

Signed November 8, 2024

Attorneys and Law Firms

Joel B. Robbins, Lauren E. Channell, Robbins Curtin Millea & Showalter PLLC, Phoenix, AZ, Keith Thomas Slack, Beale Micheaels Slack & Shughart PC, Phoenix, AZ, for Plaintiffs in No. CV-24-08056.

William J. Schrank, O’Connor & Dyet PC, Tempe, AZ, for Defendants Parminder Singh, Gurjit Kaur, Sandhu Sehzade Incorporated in No. CV-24-08056.

Brian Bahram Soleymani, John Albert Elardo, Michael E. Palumbo, Elardo Bragg Rossi & Palumbo PC, Phoenix, AZ, for Defendant Narinder Singh in No. CV-24-08056.

Clarice A. Spicker, Lauren D. Norton, Jones Skelton & Hochuli PLC, Phoenix, AZ, for Defendant Knight Logistics LLC in No. CV-24-08056.

ORDER

Dominic W. Lanza, United States District Judge

*1 On March 26, 2022, a collision occurred on Interstate 40 at milepost 179 between two semi tractor-trailers (“the Accident”). One of the semis was operated by Narinder Singh (“Narinder”); the other was operated by Andrew Scott Koontz and contained a passenger, Janice Louise McCleary.

On March 22, 2024, Plaintiffs McCleary and Koontz filed a tort lawsuit (CV-24-08056) against Narinder as well as (1) Parminder Singh (“Parminder”), allegedly the owner of the “cab” of the semi operated by Narinder, (2) Parminder’s wife, Gurjit Kaur, (3) Sandhu Sehzade, Inc. (“Sandhu Sehzade”), the trucking company for which Narinder was hauling cargo at the time of the Accident, (4) Amarjit Singh Sandhu, the owner of Sandhu Sehzade, (5) Sandhu Trans Inc., a predecessor company to Sandhu Sehzade, and (6) Knight Transportation (“Knight”), allegedly the owner of the “box-trailer” of the semi operated by Narinder. (Docs. 1, 19.)¹ The action was assigned to the undersigned judge.

On May 13, 2024, Consolidated Plaintiff Midwest Family Mutual Insurance Company (“Midwest”), which insures Shrock Trucking, the trucking company for which Koontz was driving at the time of the Accident, filed a separate tort lawsuit (CV-24-08092) against Narinder and Parminder. (Consol. Doc. 1.) The action was assigned to Judge Rayes.

On November 1, 2024, Midwest, Narinder, and Parminder filed a joint motion to consolidate the two actions. (Doc. 60.) The motion included all the parties to the action pending before Judge Rayes but not all the parties to the first action. (Id.) It did not, however, indicate that any party opposed the motion. (Id.) Judge Rayes consented to the consolidation, and on November 6, 2024, the Court granted the motion and consolidated the actions. (Doc. 61.)

Shortly thereafter, counsel for McCleary (“Counsel”)² contacted the Court to indicate a desire to oppose consolidation. Court staff informed Counsel that the Court would let her know the following day whether McCleary would be given leave to file a post-consolidation opposition. The next day, without waiting to hear from the Court, McCleary filed a post-consolidation opposition. (Doc. 62.) Koontz joined her opposition. (Doc. 63.)

Rule 42 of the Federal Rules of Civil Procedure grants the Court authority to consolidate actions before the Court if they “involve a common question of law or fact.” “District courts enjoy substantial discretion in deciding whether and to what extent to consolidate cases,” Hall v. Hall, 584 U.S. 59, 72 (2018), and “may consolidate cases sua sponte.” In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987). See also 9A Wright & Miller, Fed. Prac. & Proc. § 2382 (2022) (“The consent of the parties is not required.”).

*2 “[C]onsolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.” Hall, 584 U.S. at 70. After consolidation, the suits “remain as independent as before.” Id. The two cases may be tried separately. Fed. R. Civ. P. 42(b). One case can be “finally decided” while another remains pending—in which case it is “immediately appealable by the losing party.” Hall, 584 U.S. at 77. Consolidation does “not prejudice rights to which the parties would have been due had consolidation never occurred.” Id. at 72. It is “a mere matter of convenience in administration.” Id. at 70. “Consolidation [eliminates] the need for the parties and for the Court to file duplicate filings on two separate dockets. It is purely a matter of efficiency and does not otherwise affect the actions.” Weigman v. Wertz, 2:22-cv-02112-DWL, Doc. 24 at 2.

There is one way (aside from administrative convenience) that consolidation might “affect” an action, and that is when the consolidation involves transferring a case to another judge. Local Rule of Civil Procedure (“LRCiv”) 42.1(a) allows the transfer of cases to a single judge if the cases:

(1) arise from substantially the same transaction or event; (2) involve substantially the same parties or property; (3) involve the same patent, trademark, or copyright; (4) call for determination of substantially the same questions of law; or (5) for any other reason would entail substantial duplication of labor if heard by different Judges.

LRCiv 42.1(a).

Here, the two actions arise from the same event (the Accident), call for a determination of the same questions of law (whether Narinder negligently caused the Accident by driving while intoxicated and whether Parminder was negligent for allowing Narinder to drive his semi following Narinder’s prior DUI arrest, outstanding warrants, and revocation of his license), and would entail substantial duplication of labor if heard by different judges. At any rate, the transfer from Judge Rayes to the undersigned judge affects only the parties who joined the joint motion—it has no effect on McCleary or Koontz.

McCleary asserts that “[a]lthough the two cases involve the same underlying trucking accident, there are separate and distinct issues of fact and law in both cases beyond liability for the crash,” and therefore “while there will be some overlap in discovery with respect to liability for the crash, much of the discovery in this case” will not overlap. (Doc. 62 at 3.) McCleary’s assertion bolsters the case for consolidation, as she concedes that the issues of fact and law pertaining to liability are the same in the two cases. Rule 42(a) does not require that all the issues of fact and law must be the same or that all the discovery must overlap. It requires only that there is “a common question of law or fact,” and clearly there is at least one such question here, if not many.

McCleary also asserts that she “understands that there is an issue as to whether Midwest timely filed its claims within the statute of limitations.” (Id.) Consolidation has no effect on this issue, and this issue appears to have no effect on McCleary or Koontz. McCleary does not explain how consolidation could “prolong discovery” or why she believes discovery in her case would be stayed if “the statute of limitations issue” were raised.

Finally, McCleary asserts that Narinder is “in ill health,” which could result in “delay in taking discovery” that “could result in irreparable prejudice” to McCleary. (Id.) It is unclear how consolidation has anything to do with this. If McCleary needs to depose or otherwise seek discovery from Narinder, his ill health might cause some delay, but that would be true whether or not the cases were consolidated.

In short, McCleary’s post-consolidation opposition, which the Court construes as a motion for reconsideration, fails. Because the two cases involve common questions of both law and fact and because McCleary’s rights have not been prejudiced due to consolidation, Hall, 584 U.S. at 72, there is no reason for the Court to reverse its decision to consolidate the cases.

*3 Accordingly,

IT IS ORDERED that McCleary’s post-consolidation opposition to consolidation, which the Court construes as a motion for reconsideration (Doc. 62), is denied.

IT IS FURTHER ORDERED that the Clerk shall amend the docket to reflect that attorneys Joel Robbins and Lauren Channell represent Plaintiff McCleary only, and attorney Keith Thomas Slack represents Plaintiff Koontz only.

All Citations

Slip Copy, 2024 WL 4728649

Footnotes
1	The First Amended Complaint (“FAC”) dropped Sandhu Trans Inc. and Amarjit Singh Sandhu. (Doc. 19.)
2	The docket incorrectly lists attorneys Robbins and Channell as counsel for Koontz, as well as for McCleary, and incorrectly lists attorney Slack as counsel for McCleary, as well as Koontz. The Clerk is directed to amend the docket to reflect that Robbins and Channell represent only McCleary, and Slack represents only Koontz.

End of Document

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