United States District Court for the Eastern District of Louisiana

May 31, 2022, Decided; May 31, 2022, Filed

CIVIL ACTION NO. 20-2774 SECTION: H(1)

Reporter

2022 U.S. Dist. LEXIS 96360 *; 2022 WL 1748358

RALPH HEBERT ET AL. VERSUS HALLMARK COUNTY MUTUAL INSURANCE CO. ET AL.

Subsequent History: Partial summary judgment granted by, in part, Partial summary judgment denied by, in part, Claim dismissed by Hebert v. Hallmark Cnty. Mut. Ins. Co., 2022 U.S. Dist. LEXIS 99253 (E.D. La., June 2, 2022)

Core Terms

summary judgment, non-movant, vicariously, negligence claim, genuine

Counsel:  [*1] For Ralph Hebert, Jeanne Hebert, Plaintiffs: Richard Julius Fernandez, LEAD ATTORNEY, Amber E. Cisney, Richard J. Fernandez, LLC, Metairie, LA; Douglas Cooper Fournet, Hoffoss Devall, LLC, Lake Charles, LA.

For Hallmark County Mutual Insurance Company, Mugisha Logistics, LLC, Defendants: Robert Emmett Kerrigan, Jr., LEAD ATTORNEY, Jonathan M. Walsh, Deutsch Kerrigan & Stiles LLP (New Orleans), New Orleans, LA; Betty Marianne Wise, Deutsch Kerrigan, LLP, New Orleans, LA; Maxwell C Hadley, Deutsch Kerrigan. LLC, New Orleans, LA.

Judges: JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE.

Opinion by: JANE TRICHE MILAZZO

Opinion

ORDER AND REASONS

Before the Court is Defendant Hallmark County Mutual Insurance Company and Defendant Mugisha Logistics, LLC’s Motion for Partial Summary Judgment (Doc. 31). For the following reasons, this Motion is GRANTED.

BACKGROUND

This case arises out of an automobile accident. On February 18, 2020, Plaintiff Ralph Hebert was driving his vehicle northbound on Highway 61 in St. Charles Parish, Louisiana. Maloba Onyango, driving his employer’s vehicle for work, was heading southbound on the same highway and allegedly made an unlawful left turn, crashing into Mr. Hebert. Onyango’s employer was [*2]  Defendant Mugisha Logistics, LLC. Defendant Hallmark County Mutual Insurance Co. (“Hallmark County”) was the vehicular liability insurer for Mugisha Logistics.

Mr. Hebert and his wife, Plaintiff Jeanne Hebert, sued Hallmark County, Mugisha Logistics, and Mr. Onyango in state court in St. Charles Parish. Defendants removed the case to this Court on the basis of diversity jurisdiction. Plaintiffs have since dismissed Mr. Onyango from this action. In addition to a claim against Mugisha Logistics based on vicarious liability for Mr. Onyango’s fault, Plaintiffs asserted other negligence claims against the company directly.¹

Now before the Court is Defendants Motion for Partial Summary Judgment.² Defendants move for summary judgment with respect to Plaintiffs’ negligence claims against Mugisha Logistics because the company has admitted that Mr. Onyango was at fault for the accident and that it is vicariously liable as a result. To date, Plaintiffs have not filed an opposition to Defendants’ Motion.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine [*3]  issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”³ A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”⁴

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in her favor.⁵ “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”⁶ Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.”⁷ “In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at trial.” [*4] ⁸ “We do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”⁹ Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”¹⁰

LAW AND ANALYSIS

Defendants argue that given their admission that Mr. Onyango was at fault for the subject accident and that he was in the course and scope of his employment at the time, Plaintiffs cannot maintain their claims of negligent entrustment and the like.

Having filed no opposition, Plaintiff provides no response to this argument. However, “[a] motion for summary judgment cannot be granted simply because there is no opposition.”¹¹ “The movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the court may not grant the motion, regardless of whether any response was filed.”¹²

There is no binding precedent under Louisiana law controlling the issue raised by Defendants.¹³ “If there is no ruling by the state’s highest court on the specific question, the Court must make an Erie guess as to how the state’s highest court would decide the issue.”¹⁴ Several courts, including this one, have recently [*5]  engaged in making an Erie guess on this issue and have sided with Defendants.¹⁵ Indeed, “[s]ections of this Court and other federal district courts in Louisiana have uniformly held that, when an employer is indisputably vicariously liable for the negligent acts of its employee, the plaintiff cannot also maintain a direct negligence claim against the employer.”¹⁶

In Thomas v. Chambers, the plaintiff was injured in a car accident involving a tractor-trailer operated by Randall Chambers, an employee of God’s Way Trucking, LLC (“God’s Way”).¹⁷ The plaintiff brought claims against Chambers for his negligence and against God’s Way for vicarious liability and its independent negligence for negligently hiring, training, supervising, and entrusting Chambers.¹⁸ The court held “that plaintiffs may not maintain both a direct negligence claim against God’s Way and a claim that God’s Way is vicariously liable for Chambers’s negligence, because God’s Way readily admits that it is vicariously liable for Chambers’s alleged negligence.”¹⁹ In so holding, the court made an Erie guess in reliance on the Louisiana Third Circuit Court of Appeal’s decision in Libersat v. J & K Trucking, Inc.²⁰ In Libersat, the appellate court held that [*6]  the district court did not err in failing to instruct the jury on the employer’s duty regarding hiring and training when it “equated respondeat superior to all possible theories of recovery.”²¹ The court explained that:

If Mr. Mitchell [the employee] breached a duty to the Appellants, then Patterson [his employer] is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the Appellants then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the Appellants.²²

The logic of Libersat is even clearer in the case at hand because Mugisha Logistics has admitted not only its vicarious liability but also Mr. Onyango’s fault. Accordingly, the Court grants summary judgment with respect to Plaintiff’s direct negligence claims against Mugisha Logistics.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that Defendants’ Motion for Partial Summary Judgment on Maintenance and Cure (Doc. 31) is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs’ direct negligence claims against Mugisha Logistics are DISMISSED WITH PREJUDICE.²³

New Orleans, Louisiana this 31st day of May, 2022

/s/ Jane Triche Milazzo

JANE TRICHE MILAZZO

UNITED STATES [*7]  DISTRICT JUDGE

End of Document

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¹ See Doc. 1-2 at ¶¶ 13-23, 31-63.

² See Doc. 31.

³ Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

⁴ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

⁵ Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

⁶ Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

⁷ Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

⁸ John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (internal citations omitted).

⁹ Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

¹⁰ Boudreaux v. BanTec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

¹¹ Day v. Wells Fargo Bank Nat. Ass’n, 768 F.3d 435, 435 (5th Cir. 2014) (quoting Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)).

¹² Hibernia Nat. Bank, 776 F.2d at 1279.

¹³ Wright v. Nat’l Interstate Ins. Co., No. CV 16-16214, 2017 U.S. Dist. LEXIS 184182, 2017 WL 5157537, at *2 (E.D. La. Nov. 7, 2017).

¹⁴ Thomas v. Chambers, No. CV 18-4373, 2019 U.S. Dist. LEXIS 65900, 2019 WL 1670745, at *6 (E.D. La. Apr. 17, 2019).

¹⁵ Id.; Wright, 2017 U.S. Dist. LEXIS 184182, 2017 WL 5157537, at *2; Smith-Jordan v. Love, No. 19-14699, 2022 U.S. Dist. LEXIS 13874, 2022 WL 226513 (E.D. La. Jan. 26, 2022); Dennis v. Collins, No. CV 15-2410, 2016 U.S. Dist. LEXIS 155724, 2016 WL 6637973, at *8 (W.D. La. Nov. 9, 2016); Coffey v. Knight Refrigerated, LLC, No. CV 19-3981, 2019 U.S. Dist. LEXIS 189873, 2019 WL 5684258, at *3 (E.D. La. Nov. 1, 2019); Franco v. Mabe Trucking Co., Inc., No. 17-871, 2018 U.S. Dist. LEXIS 198263, 2018 WL 6072016, at *4 (W.D. La. Nov. 20, 2018); Vaughn v. Taylor, No. 18-CV-1447, 2019 U.S. Dist. LEXIS 5251, 2019 WL 171697, at *3 (W.D. La. Jan. 10, 2019); Wilcox v. Harco Int’l Ins., No. CV 16-187, 2017 U.S. Dist. LEXIS 97950, 2017 WL 2772088, at *3 (M.D. La. June 26, 2017).

¹⁶ Pigott v. Heath, No. CV 18-9438, 2020 U.S. Dist. LEXIS 18646, 2020 WL 564958, at *3 (E.D. La. Feb. 5, 2020) (cases cited therein).

¹⁷ Thomas, 2019 U.S. Dist. LEXIS 65900, 2019 WL 1670745, at *1.

¹⁸ Id.

¹⁹ 2019 U.S. Dist. LEXIS 65900, [WL] at *7.

²⁰ 772 So. 2d 173 (La. App. 3 Cir. 2000).

²¹ Id. at 179.

²² Id.

²³ These claims include counts II, III, and V from Plaintiffs’ Petition. See Doc. 1-2.

United States District Court for the Northern District of Illinois, Eastern Division

June 15, 2022, Decided; June 15, 2022, Filed

No. 20 C 02477

Reporter

2022 U.S. Dist. LEXIS 106700 *

JAMES P. LYNCH and LINDA LYNCH, Plaintiffs, v. ZACKARY L. COLLINS, et al., Defendants.

Core Terms

leased, summary judgment, discovery, motion to dismiss, converted, parties, truck

Counsel:  [*1] For James P. Lynch, Linda Lynch, Plaintiffs: Dominic C. LoVerde, James Ian Power, Power Rogers, LLP, Chicago, IL.

For Zackary L Collins, Old South Freight Service, Inc., Sparky Transport, LLC, Defendants: Jon P. Malartsik, LEAD ATTORNEY, Kopka Pinkus Dolin, P.C., Chicago, IL.

For TTML Enterprises, LLC, Defendant: John P. Lynch, Jr., LEAD ATTORNEY, Cremer Law LLC, Chicago, IL; Matthew Heiting, Cremer Law, LLC, Chicago, IL.

For Fair Dealing Transport, LLC, Defendant: John P. Lynch, Jr., LEAD ATTORNEY, Cremer Law LLC, Chicago, IL; Jon P. Malartsik, LEAD ATTORNEY, Kopka Pinkus Dolin, P.C., Chicago, IL. Matthew Heiting, Cremer Law, LLC, Chicago, IL.

Judges: Honorable Thomas M. Durkin, United States District Judge.

Opinion by: Thomas M. Durkin

Opinion

MEMORANDUM OPINION AND ORDER

This is a trucking collision case in which plaintiffs James and Linda Lynch sued the driver of the truck that collided with Mr. Lynch’s car, along with several companies connected to the truck. Before the court is a motion to dismiss filed by one of those companies, 19th Capital Group. For the reasons set forth below, the Court converts 19th Capital’s motion to one for summary judgment, and grants it.

Background

On October 31, 2018, defendant Zackary [*2]  Collins was driving a tractor-trailer when he allegedly fell asleep and drove through a stop sign. His truck collided with the car driven by James Lynch, who suffered various injuries. Plaintiffs sued Collins and several corporations that allegedly employed him, owned or operated the tractor-trailer in question, or were otherwise vicariously liable. In counts 13 through 18 of their second amended complaint, Plaintiffs assert claims for negligence, loss of consortium, negligent hiring, and negligent supervision against 19th Capital, either individually or as Collins’s employer.

19th Capital moved to dismiss all the claims against it, arguing that it was solely the lessor of the subject trailer and maintained no control or authority over the vehicle at the time of the accident. 19th Capital’s motion was accompanied by an affidavit from Cindy Clipper, a litigation administrator for 19th Capital Group, LLC, which states in essence that 19th Capital leased the trailer to TTML (another defendant) on July 30, 2018, before the date of the accident. Clipper’s affidavit also states that Zackary Collins was not and has never been an employee or agent of 19th Capital.

After 19th Capital filed its [*3]  motion, the parties appeared at a status conference on December 22, 2021. At that conference, the Court noted that consideration of the affidavit accompanying the motion would likely necessitate conversion of the motion into one for summary judgment. Plaintiffs requested leave to conduct limited discovery on the matters at issue in the motion. The Court granted this request and directed Plaintiffs to file their response to the motion once the discovery was complete. Plaintiffs served interrogatories on 19th Capital and deposed Ms. Clipper as part of this discovery.

Discussion

When a court considers materials outside the pleadings on a Rule 12(b)(6) motion to dismiss, the motion is converted into one for summary judgment. Texas Hill Country Landscaping, Inc. v. Caterpillar, Inc., 522 F. Supp. 3d 402, 412 (N.D. Ill. 2021). In such cases, all parties “must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, Plaintiffs had nearly six months to engage in discovery on any matters they felt were pertinent to the motion before filing their response. As such, the Court exercises its discretion to convert 19th Capital’s motion into one for summary judgment, and will consider materials outside the pleadings presented by the parties.

19th Capital contends [*4]  it is immune from liability in this case under 49 U.S.C. § 30106, commonly known as the “Graves Amendment.” The Graves Amendment states:

(a) An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if–

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

No party disputes that 19th Capital is engaged in the business of renting or leasing motor vehicles, so that element of the Graves Amendment is satisfied. However, as other courts have held, the Graves Amendment does not block a direct negligence claim against a vehicle lessor. Johnke v. Espinal-Quiroz, 2016 U.S. Dist. LEXIS 14057, 2016 WL 454333, at *5 (N.D. Ill. Feb. 5, 2016). This would include Plaintiffs’ negligent hiring and negligent supervision claims, which are direct liability claims and are not subject to the Graves [*5]  Amendment. See Fuller v. Briggs, 2021 WL 1237100, at *5 (N.D. Tex. Apr. 2, 2021); Montize v. Pittman Props. Ltd. P’ship No. 1, 719 F. Supp. 2d 1052, 1057 (W.D. Ark. 2010).

Plaintiffs argue their vicarious liability claims for negligence and loss of consortium are also outside the Graves Amendment because they do not seek to impose liability on 19th Capital solely, in the terms of the Amendment, “by reason of being the owner of the vehicle.” Instead, they premise liability on an employer-employee relationship. The court in Johnke endorsed this view of the interplay between vicarious liability claims and the Graves Amendment, and this Court agrees. A claim premised on an employment or agency relationship between a driver and vehicle owner does not seek to impose liability on the latter merely because it is the owner of the vehicle. Johnke, 2016 U.S. Dist. LEXIS 14057, 2016 WL 454333, at *8. Therefore, the Graves Amendment does not apply to these claims either.

The common thread in all of Plaintiffs’ claims against 19th Capital is the existence of an employer-employee relationship. Because it has converted the motion into one for summary judgment, the Court must determine whether the evidence, taken in the light most favorable to Plaintiffs, would permit a reasonable factfinder to conclude that 19th Capital was Collins’s employer at the time of the crash.

The Court finds no evidence in the record to [*6]  support this conclusion. Plaintiffs have cited to no evidence gathered in discovery that supports their claims, instead referencing their “allegations” of an employment relationship between 19th Capital and Collins while citing to the motion to dismiss standard in which a court accepts as true any facts alleged in the complaint. See R. 79, at 2-3.

As noted, Plaintiffs had months to conduct discovery on this issue, and knew the basis for 19th Capital’s motion well before even the December 2021 status conference. They cannot now turn back to the plaintiff-friendly pleading standard because no helpful evidence seems to have emerged. Because Plaintiffs had notice and a fair opportunity to present additional material they deemed pertinent, the summary judgment standard applies here. Dovenmuehle v. Gilldorn Mortg. Midwest Corp., 871 F.2d 697, 699 n.1 (7th Cir. 1989). Under that standard, the Court is not required to credit a plaintiff’s bare accusations, and the plaintiff must come forward with “specific facts showing that there is a genuine issue for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 894, 896 (7th Cir. 2018).

The evidence in the record shows that prior to the date of the accident, 19th Capital leased the subject trailer to TTML Enterprises, a commercial entity and a defendant in this case, which in turn leased it to Old [*7]  South Freight Service, another defendant. Further, on the day of the accident, Collins was operating the truck under the motor carrier authority of Old South. Clipper’s affidavit states unequivocally that Collins was not and has never been an employee of 19th Capital, and Plaintiffs did not challenge that statement during her deposition—indeed, Collins was barely even mentioned.

As such, nothing in the record disputes 19th Capital’s assertions that it was not Collins’s employer and that its only connection to the crash and other parties in this case is as lessor of the trailer. Plaintiffs cite to the definitions of “employer” and “employee” in the Federal Motor Carrier Safety Regulations to argue that 19th Capital is liable as a “statutory employer.” 49 C.F.R. § 390.5. But that regulation only provides definitions, not bases for liability. Johnke, 2016 U.S. Dist. LEXIS 14057, 2016 WL 454333, at *7. It cannot be the case that 19th Capital is liable as an employer simply because it meets this definition. This would result in a nonsensical situation where any employer could be sued for any crash in the country involving a person who qualifies as an employee. So there must still be some evidence of an actual employer-employee relationship between the parties involved, [*8]  and such evidence is completely absent here.

Plaintiffs also attack Clipper’s credibility, arguing she had no foundation to attest to the facts in her affidavit. While Clipper was unable to answer certain questions about 19th Capital during her deposition, this does not mean she lacked a basis to attest to the specific facts in her affidavit, which were based on her firsthand review of the Master Lease Agreement and communications with a representative of H19 Capital, the corporation that purchased 19th Capital’s assets in May 2020. It is hardly unusual that Clipper might have lacked broad knowledge of 19th Capital’s overall employment structure around the time of the accident but nonetheless been informed that a specific person was not employed by the company. Furthermore, other evidence in the record supports 19th Capital’s position, including the police report that identifies Old South as the vehicle owner and freight carrier for which Collins was driving, and discovery responses indicating that Collins was employed as an independent contractor by TTML, not 19th Capital.

Because there is no basis to find that Collins was an agent or employee of 19th Capital at any relevant time, each [*9]  of Plaintiffs’ claims premised on such a relationship fails as a matter of law. Furthermore, Plaintiffs have cited to no evidence that might sustain any other claim of direct negligence against 19th Capital not barred by the Grave Amendment.

Conclusion

For the foregoing reasons, the Court converts 19th Capital’s motion to dismiss [R. 52] into a motion for summary judgment and grants that motion in 19th Capital’s favor as to all claims against it.

ENTERED:

/s/ Thomas M. Durkin

Honorable Thomas M. Durkin

United States District Judge

Dated: June 15, 2022

End of Document