Broker - Central Analysis Bureau

LaGrange v. Boone

Court of Appeal of Louisiana, Third Circuit

April 6, 2022, Decided

21-560

Reporter

2022 La. App. LEXIS 552 *; 21-560 (La. 04/06/22)

GABRIEL LAGRANGE AND AMANDA LAGRANGE, INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILDREN COLLIN LAGRANGE, JAYCE LAGRANGE, AND LINDSAY LAGRANGE VERSUS HARLEY E. BOONE, ROAMER TRANSPORT, INC., HUM INTERNATIONAL TRANSPORTATION INSURANCE SERVICES, INC., KLLM TRANSPORT SERVICES, LLC D/B/A KLLM LOGISTICS SERVICES, AMERICAN HONDA MOTOR CO., INC., AND PROGRESSIVE SECURITY INSURANCE COMPANY

Notice: THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

Prior History: [*1] APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. 90887-B. HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE.

Disposition: AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Core Terms

Transport, broker, motor carrier, Plaintiffs’, preemption, negligent-hiring, carrier, summary judgment motion, trial court, summary judgment, genuine issue of material fact, preempts, documents, time of an accident, negligence claim, factual support, employer-employee, freight, burden of proof, broker-carrier, regulation, Logistics, arranged, regulatory authority, brokerage services, motor vehicle, tort claim, mover

Case Summary

Overview

HOLDINGS: [1]-In a personal injury claim from a tractor-trailer and motorcycle accident, the trial court correctly dismissed the plaintiffs’ vicarious liability claim against defendants because defendant had sufficiently pointed out plaintiffs’ absence of factual support for an essential element of the vicarious-liability claim which was that tractor-trailer driver was employed under La. Code Civ. Proc. Ann. art. 2320 by defendant; [2]-Trial court’s judgment granting the defendant’s motion for summary judgment was affirmed because a valid broker-carrier agreement existed since defendant clearly took actions indicating its acceptance of the broker-carrier agreement and an affidavit testimony stated that defendant was in fact the broker, under FAAAA for the load that was being hauled by tractor-trailer driver on behalf of a roamer transport at the time of the accident.

Outcome

Judgment affirmed in part; reversed in part and remanded.

LexisNexis® Headnotes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Appeals > Summary Judgment Review > Standards of Review

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Entitlement as Matter of Law, Appropriateness

In reviewing the trial court’s decision on a motion for summary judgment, an appellate court applies the de novo standard of review using the same criteria applied by the trial court to determine whether summary judgment is appropriate.

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Legal Entitlement

Entitlement as Matter of Law, Appropriateness

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966(A)(3).

Civil Procedure > … > Summary Judgment > Opposing Materials > Accompanying Documentation

Civil Procedure > … > Summary Judgment > Supporting Materials > Affidavits

Opposing Materials, Accompanying Documentation

The only documents that may be filed in support of or in opposition to the motion for summary judgment are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. Code Civ. Proc. Ann. art. 966(A)(4).

Torts > Vicarious Liability > Employers > Scope of Employment

Employers, Scope of Employment

In relevant part, La. Code Civ. Proc. Ann. art. 2320 states that masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

Torts > Vicarious Liability > Employers > Scope of Employment

Employers, Scope of Employment

There are two essential elements for liability under La. Code Civ. Proc. Ann. art. 2320: (1) the existence of an employer-employee relationship, and (2) the tortious act of the employee was committed during the course and scope of the employment by the employer sought to be held liable.

Evidence > Burdens of Proof > Allocation

Torts > … > Employers > Scope of Employment > Factors

Burdens of Proof, Allocation

The single most important factor to consider in deciding whether the employer-employee relationship exists, for purposes of La. Code Civ. Proc. Ann. art. 2320, is the right of the employer to control the work of the employee. It is the right of control of the time and physical activities in the other party and the existence of a close relationship between the parties which determine that one is a servant. Servant must be interpreted as that particular kind of agent who has a very close economic relation to, and is subject to very close control by, the principal. A servant is one who offers his personal services for a price. He is an integral part of his employer’s business and must submit to the control of his physical conduct as well as of his time. The four primary evidentiary factors considered in deciding whether such an employer-employee relationship exists relate to whether the alleged employer has the right or duty, relative to the employee, of: (1) selection and engagement; (2) payment of wages; (3) power of dismissal; and (4) power of control. However, no one factor is controlling; rather, the totality of the circumstances must be considered, and the burden of proof is on the party seeking to establish an employer-employee relationship.

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Torts > Vicarious Liability > Employers

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Entitlement as Matter of Law, Appropriateness

Summary judgment on a vicarious-liability claim is appropriate when the uncontested facts show that an alleged tortfeasor was not an employee of the defendant.

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Transportation Law > Carrier Duties & Liabilities > Definitions

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Particular Actors, Circumstances, & Liabilities, Motor Carriers

The Federal Aviation Administration Authorization Act of 1994 (FAAAA) defines a broker as a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation. 49 U.S.C.S. § 13102(2). By contrast, the term carrier means motor carrier. 49 U.S.C.S. § 13102(3). The FAAAA defines a motor carrier as a person providing motor vehicle transportation for compensation. 49 U.S.C.S. § 13102(14). Accompanying federal regulations further define motor carrier as a for-hire motor carrier or private motor carrier. 49 C.F.R. § 387.5. In turn, for-hire carriage refers to the business of transporting, for compensation, the goods or property of another. Thus, an entity is a motor carrier only when it was operating as a for-hire motor carrier at the time of the accident.

Business & Corporate Compliance > … > Contracts Law > Contract Formation > Execution & Delivery

Contract Formation, Execution & Delivery

There is a jurisprudential exception to the rule under La. Civ. Code Ann. art. 1837 when one party has signed the agreement and the other party has availed himself of the agreement or taken actions evidencing acceptance thereof.

Civil Procedure > … > Defenses, Demurrers & Objections > Affirmative Defenses > Burdens of Proof

Evidence > Burdens of Proof > Allocation

Constitutional Law > Supremacy Clause > Federal Preemption

Affirmative Defenses, Burdens of Proof

Preemption is an affirmative defense. A party defendant who asserts an affirmative defense bears the burden of proof thereof.

Constitutional Law > Supremacy Clause > Federal Preemption

Transportation Law > Interstate Commerce > Federal Preemption

Torts > Business Torts > Negligent Hiring, Retention & Supervision > Defenses

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Supremacy Clause, Federal Preemption

The Federal Aviation Administration Authorization Act of 1994 would otherwise preempt negligent-hiring claims against brokers, but the safety exception saves these claims from preemption.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > Rates & Tariffs

Transportation Law > Interstate Commerce > Federal Preemption

Constitutional Law > Supremacy Clause > Federal Preemption

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Rates & Tariffs

Common Carrier Duties & Liabilities, Rates & Tariffs

49 U.S.C.S. § 14501(c)(1) preempts state laws that are related to a price, route, or service of any motor private carrier, broker, or freight forwarder with respect to the transportation of property. 49 U.S.C.S. § 14501(c)(1).

Transportation Law > Carrier Duties & Liabilities > Definitions

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Carrier Duties & Liabilities, Definitions

The selection of motor carriers is one of the core services of brokers. 49 U.S.C.S. § 13102(2) defines broker, as it is used in the Federal Aviation Administration Authorization Act of 1994, to mean a person, other than a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation; 49 C.F.R. § 371.2 defines brokerage service as the arranging of transportation.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Transportation Law > Interstate Commerce > Federal Preemption

Constitutional Law > Supremacy Clause > Federal Preemption

Business & Corporate Compliance > … > Transportation Law > Interstate Commerce > State Powers

Commercial Drivers & Vehicles, Maintenance & Safety

49 U.S.C.S. § 14501(c)(2) is the safety regulation preemption exception. This exception provides that the Federal Aviation Administration Authorization Act of 1994’s preemption shall not restrict the safety regulatory authority of a State with respect to motor vehicles. 49 U.S.C.S. § 14501(c)(2)(A).

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Governments > Courts > Common Law

Torts > Transportation Torts

Commercial Drivers & Vehicles, Maintenance & Safety

The safety regulatory authority of a State is not defined in the Federal Aviation Administration Authorization Act of 1994 nor is there anything in the statute’s text which clarifies its scope. In general, however, courts have construed the safety exception broadly. The safety regulatory authority of a State’ encompasses common-law tort claims.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Torts > Procedural Matters > Preemption > Implied Preemption

Transportation Law > Interstate Commerce > Federal Preemption

Constitutional Law > Supremacy Clause > Federal Preemption

Commercial Drivers & Vehicles, Maintenance & Safety

In enacting the safety exception, Congress intended to ensure that its preemption over states’ economic authority did not restrict the states’ existing power over safety. That power includes the ability to regulate safety through common-law tort claims.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Constitutional Law > Supremacy Clause > Federal Preemption

Transportation Law > Interstate Commerce > Federal Preemption

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Commercial Drivers & Vehicles, Maintenance & Safety

Negligence claims against brokers arising out of motor vehicle accidents satisfy the with respect to motor vehicles language in the statute. With respect to is synonymous with relating to. 49 U.S.C.S. § 14501(c)(2) exempts from preemption safety regulations that have a connection with motor vehicles, whether directly or indirectly.

Business & Corporate Compliance > … > Commercial Drivers & Vehicles > Transportation Law > Commercial Vehicles

Torts > Transportation Torts > Motor Vehicles > Particular Actors, Circumstances, & Liabilities

Transportation, Commercial Drivers & Vehicles

Under the Federal Aviation Administration Authorization Act of 1994, a motor vehicle is defined in relevant part as a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation. 49 U.S.C.S. § 13102(16).

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Constitutional Law > Supremacy Clause > Federal Preemption

Commercial Drivers & Vehicles, Maintenance & Safety

The safety exception exempts Louisiana’s power to regulate safety through state-law tort claims.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

Constitutional Law > Supremacy Clause > Federal Preemption

Transportation Law > Carrier Duties & Liabilities > Freight Brokers & Forwarders

Torts > Business Torts > Negligent Hiring, Retention & Supervision > Defenses

Commercial Drivers & Vehicles, Maintenance & Safety

The safety regulation preemption exception in 49 U.S.C.S. § 14501(c)(2) applies to negligent-hiring claims against brokers.

Counsel: Joseph E. Ritch, Elliott & Ritch, LLP, Corpus Christi, Texas, Counsel for Plaintiffs/Appellants: Gabriel LaGrange and Amanda LaGrange, Individually and on Behalf of the Minor Children, Collin LaGrange, Jayce LaGrange, and Lindsay LaGrange.

Jared Dunahoe, Natchitoches, Louisiana, Counsel for Plaintiffs/Appellants: Gabriel LaGrange and Amanda LaGrange, Individually and on Behalf of the Minor Children, Collin LaGrange, Jayce LaGrange, and Lindsay LaGrange.

Jack E. Truitt, Lou Anne Milliman, Michelle Mayne Davis, Lauren A. Duncan, The Truitt Law Firm, LLC, Covington, Louisiana, Counsel for Defendant/Appellee: KLLM Transport Services, LLC, d/b/a KLLM Logistics Services.

Judges: Court composed of Sylvia R. Cooks, Chief Judge, Van H. Kyzar and Charles G. Fitzgerald, Judges.

Opinion by: CHARLES G. FITZGERALD

Opinion

[Pg 1] FITZGERALD, Judge.

The issue on appeal is whether the trial court erred in granting the defendant’s motions for summary judgment and dismissing the plaintiffs’ negligence claims.

FACTS AND PROCEDURAL HISTORY

This is a personal injury suit [*2] arising from a tractor-trailer and motorcycle accident that occurred in Natchitoches Parish in April 2018. The accident was allegedly caused when a tractor-trailer being driven by Harley E. Boone collided with a motorcycle being driven by Gabriel LaGrange. As a result of the accident, LaGrange and his wife, individually and on behalf of their minor children, filed suit against numerous defendants, including KLLM Transport Services LLC d/b/a KLLM Logistics Services.

Plaintiffs’ petition alleges that KLLM “contracted the services of Roamer Transport Inc. and its employee Harley E. Boone to provide transport services.” The petition also alleges that Boone was an employee of Roamer Transport. But Plaintiffs then allege that KLLM is liable for the negligent acts of its employee Harley E. Boone under the doctrine of respondeat superior. Additionally, Plaintiffs allege that KLLM is negligent in hiring and retaining Roamer Transport; in hiring and retaining Boone as a driver for KLLM; in failing to develop, implement, and enforce a reasonable and prudent carrier safety program to include driver screening, training, and management; and in failing to adhere to safety statutes and regulations. [*3]

On May 21, 2020, KLLM filed a motion for summary judgment in which it argued that Plaintiffs had no evidence that it (KLLM) had any role in the transportation services provided by Roamer Transport and carried out by Boone, [Pg 2] and that Boone was not an employee of KLLM at the time of the accident. Thus, KLLM contended that Plaintiffs’ vicarious liability claim should be dismissed.

The very next day, on May 22, 2020, KLLM filed a second motion for summary judgment. In this motion, KLLM argued that Plaintiffs’ negligent-hiring claims should be dismissed because of federal preemption.

The hearing on both motions was held in April 2021. After taking the matter under advisement, the trial court granted summary judgment and dismissed all of Plaintiffs’ claims against KLLM with prejudice. In granting KLLM’s first motion, the trial court stated that “any state-law claims by Plaintiff sounding in respondeat superior must be dismissed based on KLLM’s status as broker and not as employer of Mr. Boone.”

As to KLLM’s second motion for summary judgment, the trial court first concluded that federal law preempts state-law negligence claims against freight brokers. The trial court then turned its attention [*4] to the “safety exception” to the federal preemption law and concluded that the exception does not encompass this type of claim. Thus, Plaintiffs’ negligent-hiring claims against KLLM were also dismissed.

A written final judgment was signed by the trial court on May 31, 2021. This appeal by Plaintiffs followed.

On appeal, Plaintiffs assert three assignments of error: (1) whether the trial court erred in finding that there was no genuine issue of material fact as to the broker status of KLLM; (2) whether the trial court erred in finding that the negligent-hiring claims against KLLM were preempted by federal law; and (3) whether trial court erred in finding that the safety exception to the federal preemption law did not apply.

[Pg 3] LAW AND ANALYSIS

In reviewing the trial court’s decision on a motion for summary judgment, we apply the de novo standard of review using the same criteria applied by the trial court to determine whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880.

motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

The [*5] burden of proof in summary-judgment proceedings is set forth in La.Code Civ.P. art. 966(D)(1), which states:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

to a document shall be raised in a timely filed opposition or reply memorandum.” La.Code Civ.P. art. 966(D)(2).

[Pg 4] I. KLLM’s First Motion for Summary Judgment

The trial court correctly dismissed the Plaintiffs’ vicarious liability claim against KLLM.

asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

There are two essential elements for liability under Article 2320: “(1) the existence of an employer-employee relationship and (2) the tortious act of the employee was committed during the course and scope of the employment by the employer sought to be held liable.” Maze v. Grogan, 96-1413, p. 2 (La.App. 1 Cir. 5/9/97), 694 So.2d 1168, 1170.

KLLM’s first motion for summary judgment points out that Plaintiffs lack factual support for the first element—that Boone was employed by KLLM. The Louisiana Supreme Court recently addressed the employer-employee relationship in Bolden v. Tisdale, 21-224, at 13 (La. 1/28/22), So.3d , , explaining as follows:

primary evidentiary factors considered in deciding whether such an employer-employee relationship exists relate to whether the alleged employer has the right or duty, relative to the employee, of: (1) selection and engagement; (2) payment of wages; (3) power of dismissal; and (4) power of control. Hillman v. Comm-Care, Inc., 01-1140, p. 8 (La. 1/15/02), 805 So.2d 1157, 1162. However, no one factor is controlling; rather, the totality of the circumstances must be considered, and the burden of proof is on the party seeking to establish an employer-employee relationship. Hillman, 01-1140 at pp. 8-9, 805 So.2d at 1163.

Put simply, facts show that an alleged tortfeasor was not an employee of the defendant. Morales v. Davis Bros. Constr. Co., 94-902 (La.App. 4 Cir. 12/15/94), 647 So.2d 1302; see also Franklin v. Dick, 51,479 (La.App. 2 Cir. 6/21/17), 224 So.3d 1130 (granting summary judgment in favor of a taxicab lessor because the uncontested facts showed that the cabdriver was not an employee of the lessor).

Here, the summary-judgment evidence used by KLLM to point out that Plaintiffs lack factual support to establish an employer-employee relationship between KLLM and Boone includes the affidavit of Cassie Icamina, who is KLLM’s vice president of logistics. Icamina’s affidavit states in part that KLLM did not pay Boone; that KLLM did not have an employment contract with Boone; that KLLM had no contractual right to exercise supervision and control over Boone; that KLLM did not exercise any supervision or control over Boone; and that KLLM had no role in the transportation of freight.

At this point, KLLM has sufficiently pointed out Plaintiffs’ absence of factual support for an essential element of the vicarious-liability claim. Hence, the burden of production under La.Code Civ.P. art. 966(D)(1) now shifts to Plaintiffs to produce evidence of a material factual dispute. In attempting to meet this [Pg 6] burden, Plaintiffs submitted certain public records to show that KLLM has both a “broker” [*9] DOT number and “carrier” DOT number. The purpose of these documents, according to Plaintiffs, is to show that there is a factual dispute as to whether KLLM was acting as a broker or carrier at the time of the accident. And this brings us to Plaintiffs’ first assignment of error: that the trial court erred in finding that there was no genuine issue of material fact as to the broker status of KLLM. Indeed, a genuine dispute here would create a genuine issue of material fact as to the existence of an employer-employee relationship between KLLM and Boone.

Thus, before going further, we must determine whether KLLM is a broker or carrier within the meaning of the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”). The FAAAA defines a “broker” as a “person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2).

By contrast, the term “carrier means motor carrier[.]” 49 U.S.C. § 13102(3). The FAAAA defines a “motor carrier” as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). Accompanying federal [*10] regulations further define “motor carrier” as a “for-hire motor carrier or private motor carrier.” 49 C.F.R. § 387.5. In turn, “for-hire carriage” refers to “the business of transporting, for compensation, the goods or property of another.” Id. Thus, an entity is a motor carrier only when it “was operating as a for-hire motor carrier at the time of the accident.” Herrod v. Wilshire Ins. Co., 499 Fed. Appx. 753, 759 (10th Cir. 2012).

[Pg 7] KLLM contends that it was operating as a broker at the time of the accident. As a broker, it merely arranged for the transportation of the freight by a motor carrier. Roemer Transport, according to KLLM, was the motor carrier. And Roamer Transport, as the motor carrier, provided its own driver, and that driver was Harley Boone. This is KLLM’s argument.

As to the documents submitted by Plaintiffs in opposition to summary judgment—specifically, the documents reflecting that KLLM has both a federal broker DOT number and carrier DOT number—KLLM contends that this does not create a genuine issue of material fact. We agree. Although KLLM possesses broker and carrier status with the Federal Motor Carrier Safety Administration, Plaintiffs presented no evidence to show that in this instance KLLM was acting as a carrier.

Plaintiffs next attempt [*11] to meet their burden of producing factual support by arguing that the broker-carrier contract between KLLM and Roamer Transport was not signed by KLLM. The broker-carrier contract at issue is attached to the affidavit of KLLM’s vice president of logistics, Cassie Icamina. The contract is styled “KLLM Logistics Services Broker-Carrier Transportation Agreement.” And in the agreement, KLLM is identified as “Broker,” and Roamer Transport is identified as “Carrier”; Roamer Transport agreed to perform transportation services for KLLM; Roamer Transport is specifically identified as an independent contractor; and it is expressly stated that KLLM had no right to control the services provided by Roamer Transport or its employees.

So, does Plaintiffs’ argument as to KLLM’s failure to sign the agreement have merit? In answering this question, we turn to La.Civ.Code art. 1837, which states that “[a]n act under private signature need not be written by the parties, but [Pg 8] must be signed by them.” The trial court astutely points out that thereof.

For example, in Stevens Constr. & Design, LLC v. Hillman, 19-1329, 2020 La. App. Unpub. LEXIS 114 (La.App. 1 Cir. 6/12/20) (unpublished), a homeowner who signed a contract with Stevens Construction opposed summary judgment by arguing that there was a genuine issue of material fact regarding the existence of the contract because the construction company did not also sign the contract. The first circuit disagreed. The actions taken by Stevens Construction, including accepting an initial payment from the homeowner and undertaking work for several months, indicated its acceptance of the contract. Summary judgment was therefore affirmed.

In this case, KLLM clearly took actions indicating its acceptance of the broker-carrier agreement. The affidavit testimony of Icamina identifies the broker-carrier agreement at issue; Icamina states that she is familiar with the subject agreement, and that KLLM was in fact the broker for the load that was being hauled by Mr. Boone on behalf of Roamer Transport at the time of the accident. Accordingly, a valid broker-carrier agreement existed, and Plaintiffs’ argument that KLLM’s failure to sign the agreement created a genuine issue of material fact is without merit.

In the end, Plaintiffs were unable to produce factual support sufficient to establish [*13] the existence of a genuine issue of material fact. It is indisputable that KLLM was the “broker” and Roamer Transport was the “carrier” at the time of the accident. It is also indisputable that KLLM was not Harley Boone’s employer at the time of the accident. Thus, Plaintiffs’ first assignment of error is without merit, [Pg 9] and the trial court’s judgment granting the motion for summary judgment on vicarious liability is affirmed.

II. KLLM’s Second Motion for Summary Judgment

In its second motion for summary judgment, KLLM argues that the FAAAA preempts all state-law tort claims, including Plaintiffs’ negligent-hiring claims.

” Lupian v. Joseph Cory Holdings LLC, 905 F.3d 127, 130 (3d Cir. 2018). “‘A party defendant who asserts an affirmative defense bears the burden of proof thereof.'” Fin & Feather, LLC v. Plaquemines Parish Gov’t, 16-0256, p. 9 (La.App. 4 Cir. 9/28/16), 202 So.3d 1028, 1034 (quoting New Amsterdam Cas. Co. v. Culotta, 230 So.2d 339, 341 (La.App. 4 Cir. 1970)). KLLM therefore has the burden of proving the affirmative defense of preemption.

A. FAAAA Preemption

In relevant part, the FAAAA provides:

(c) Motor carriers of property.–

(1) General rule.–Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, [*14] route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

(2) Matters not covered.–Paragraph (1)–

(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles[.]

49 U.S.C. § 14501.

[Pg 10] The issue before us is a matter of first impression in Louisiana’s courts of appeal: whether the FAAAA preempts negligent-hiring claims brought against a freight broker by people who have been injured in motor vehicle accidents. The Ninth Circuit is the only federal appellate court to address this issue. Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020) (holding that the FAAAA would otherwise preempt negligent-hiring claims against brokers, but the safety exception saves these claims from preemption). And while many federal district courts have addressed FAAAA preemption challenges with respect to negligence claims against brokers, the decisions from these courts are divided.¹

B. Does 49 U.S.C. § 14501(c)(1) Preempt Plaintiffs’ Negligent-Hiring Claims?

Section 14501(c)(1) preempts state laws that are “related to a price, route, or service of any . . . motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). Thus, the key question is whether section 14501(c)(1)‘s text—preempting state laws that relate to a broker’s services with respect to transportation—encompass Plaintiffs’ negligent-hiring claims.

[Pg 11] In Miller, 976 F.3d 1016, the plaintiff sustained injuries when his vehicle was struck by a tractor-trailer. The plaintiff sued the freight broker that arranged for the tractor-trailer to transport the goods, alleging that the broker negligently selected an unsafe motor carrier. The Ninth Circuit held that the plaintiff’s negligence claim was related to the broker’s services within the meaning of the FAAAA’s preemption provision. In support of [*16] its holding, the court explained that

Id. at 1024 (footnote omitted).

Turning back to KLLM’s second motion for summary judgment. As a threshold matter, it is indisputable that KLLM is a broker under the FAAAA. KLLM, in support of its second motion, submitted the same documents that were attached to its first motion, including the affidavit of the company’s vice president of logistics. As a broker, KLLM arranged for the transportation of goods by the motor carrier.

Thus, we adopt the legal analysis given in Miller, and we hold that Plaintiffs’ [*17] negligent-hiring claims against KLLM relate to core broker services with respect to transportation and are thus within the scope of section 14501(c)(1). As such, these claims will be preempted unless the safety exception in section 14501(c)(2) applies.

[Pg 12] C. Do Plaintiffs’ Negligent-Hiring Claims Fall Within the Scope of 49 U.S.C. § 14501(c)(2)?

” 49 U.S.C. § 14501(c)(2)(A). The issue herein is twofold: first, whether “the safety regulatory authority of a State” encompasses state law tort claims. And second, whether negligence claims against brokers that stem from motor vehicle accidents are “with respect to motor vehicles.”

As to the first prong, the Ninth Circuit in Miller, 976 F.3d 1016, noted that the phrase “ the safety regulatory authority of a State” is not defined in the FAAAA nor is there anything in the statute’s text which clarifies its scope. “In general, however, courts have construed the safety exception broadly.” Id. at 1026 (citing City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L. Ed. 2d 430 (2002); Cal. Tow Truck Ass’n v. City & County of San Francisco, 807 F.3d 1008 (9th Cir. 2015); and VRC LLC v. City of Dallas, 460 F.3d 607 (5th Cir. 2006)). With this in mind, the Ninth Circuit held that “‘the safety regulatory authority of a State’ encompasses common-law tort claims.” Miller, 976 F.3d at 1026 (quoting 49 U.S.C. § 14501(c)(2)(A)).

The Miller court [*18] explained that in enacting the safety exception, Congress intended to ensure that its preemption over states’ economic authority did not restrict the states’ existing power over safety. “That power,” according to Miller, “includes the ability to regulate safety through common-law tort claims.” Id.

As to the second prong, the Miller court held that vehicles” language in the statute. Id. at 1030. The court explained that “with respect to” is synonymous with “relating to.” Id. at 1026. Thus, the safety exception in section 14501(c)(2) exempts from preemption safety regulations that have a connection with motor vehicles, whether directly or indirectly. Id.²

Once again, this court agrees with the legal analysis and conclusions given in Miller. We find that the safety exception exempts Louisiana’s power to regulate safety through state-law tort claims. We also find that Plaintiffs’ negligent-hiring claims against KLLM arise out of a motor vehicle accident and are therefore “with respect to motor vehicles.”

For these reasons, we hold that Because of our holding, Plaintiffs’ negligent-hiring claims against KLLM are not preempted by section 14501(c)(1) of the FAAAA.

Accordingly, Plaintiffs’ second and third assignments of error have merit, and the trial court’s grant of summary judgment as to preemption is reversed. In the end, even though KLLM established that there is no genuine issue of material fact, it failed to prove that it is entitled to summary judgment as a matter of law.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court granting KLLM’s motion for summary judgment as to Plaintiffs’ vicarious-liability claim.

However, we reverse the trial court’s judgment granting KLLM’s motion for summary judgment as to Plaintiffs’ negligent-hiring claims, and we remand this [Pg 14] matter to the trial court where Plaintiffs will be allowed to proceed with these claims.

The costs of the appeal are split equally between Gabriel LaGrange and Amanda LaGrange, individually and on behalf of their minor children, and KLLM Transport Services LLC d/b/a KLLM Logistics Services.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

End of Document

¹As explained in Bertram v. Progressive Southeastern Ins. Co., 2021 U.S. Dist. LEXIS 131251, 2021 WL 2955740, *2 (W.D. La. 2021):

The first group of courts found no FAAAA preemption of personal injury claims against brokers based on the conclusion that negligent hiring claims are not sufficiently “related to” the services of a [*15] broker. See, e.g., Scott v. Milosevic, 372 F. Supp. 3d 758, 769 (N.D. Iowa 2019); Mann v. C.H. Robinson Worldwide, Inc., 2017 U.S. Dist. LEXIS 117503, 2017 WL 3191516, at *7 (W.D. Va. July 27, 2017). The second group of courts rejected FAAAA preemption of common law negligence claims based on the safety regulatory exception. See, e.g., Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020); Lopez v. Amazon Logistics, Inc., 458 F. Supp. 3d 505, 512 (N.D. Tex. 2020); Popal v. Reliable Cargo Delivery, Inc., 2021 U.S. Dist. LEXIS 57592, 2021 WL 1100097 (W.D. Tex. Mar. 10, 2021); Grant v. Lowe’s Home Ctrs., LLC, 2021 U.S. Dist. LEXIS 16332, 2021 WL 288372, at *3 (D.S.C. Jan. 28, 2021). Finally, the third group of courts have found that negligence claims against freight brokers are preempted under the FAAAA and do not fall within the safety exception. See, e.g., Gillum v. High Std., LLC, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371 (W.D. Tex. Jan. 27, 2020); Loyd v. Salazar, 416 F. Supp. 3d 1290, 2019 WL 4577108, at *4 (W.D. Okla. Sept. 20, 2019); Creagan v. Wal-Mart Transp., LLC, 354 F. Supp. 3d 808, 812 (N.D. Ohio 2018).

² Under the FAAAA, a “motor vehicle” is defined in relevant part as “a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation.” 49 U.S.C. § 13102(16).

Miller v. Costco Wholesale Corp.

United States District Court for the District of Nevada

February 22, 2022, Decided; February 22, 2022, Filed

Case No. 3:17-cv-00408-MMD-CLB

Reporter

2022 U.S. Dist. LEXIS 30504 *; 2022 WL 526140

ALLEN MILLER, Plaintiff, v. COSTCO WHOLESALE CORP., et al., Defendants.

Prior History: Miller v. C.H. Robinson Worldwide, Inc., 2018 U.S. Dist. LEXIS 194453, 2018 WL 5981840 (D. Nev., Nov. 14, 2018)

Core Terms

summary judgment, carrier, material fact, genuine, chameleon, hiring, motor carrier, proximate cause, investigate, shipment

Counsel: [*1] For Allen Miller, Plaintiff: Michael Jay Leizerman, LEAD ATTORNEY, The Law Firm for Truck Safety, LLP, Toledo, OH USA; Rena Mara Leizerman, LEAD ATTORNEY, PRO HAC VICE, The Law Firm for Truck Safety, LLP, Toledo, OH USA; Matthew L. Sharp, Matthew L. Sharp, Ltd., Reno, NV USA.

For Ronel R. Singh, Rheas Trans, Inc., Kuwar Singh, dba RT Service, Defendants, Cross Defendants: David M Zaniel, LEAD ATTORNEY, Ranalli & Zaniel, LLC, Reno, NV USA; George M. Ranalli, Ranalli Zaniel Fowler & Moran, LLC, Henderson, NV USA.

For C.H. Robinson Worldwide, Inc., Defendant, Cross Claimant, Cross Defendant: Michael A Burke, Michael E Sullivan, Robison, Sharp, Sullivan & Brust, Reno, NV USA.

For Pride Industries, Cross Defendant: Emma L. Forrest, LEAD ATTORNEY, Diesch Forrest, APC, Rocklin, CA USA.

Judges: MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.

Opinion by: MIRANDA M. DU

Opinion

ORDER

I. SUMMARY

Plaintiff Allen Miller sued Defendant C.H. Robinson Worldwide, Inc. (“CHR”) for negligently hiring an unfit motor carrier to transport a shipment, which led to an accident that severely injured Miller. (ECF No. 32 at 3, 7.) Before the Court is CHR’s Motion for Summary Judgment (ECF No. 124 (“Motion”)).¹ CHR requests summary judgment because [*2] Miller failed to establish, as a matter of law, that CHR breached its duty of care and that CHR’s conduct was the proximate cause of the accident. (Id. at 6.) Because there are genuine issues of material fact as to both the breach and proximate cause issues, and as further explained below, the Court will deny the Motion.

II. BACKGROUND²

CHR is a freight broker that contracts with motor carriers to transport shipments for clients. (ECF Nos. 32 at 7, 124 at 6.) CHR entered into a contract with RT Service (“RT”), an unrated motor carrier in 2014. (ECF Nos. 124 at 15, 129 at 10.) In 2016, CHR hired RT to deliver a shipment for Costco from Sacramento, California to Salt Lake City, Utah. (ECF Nos. 124 at 17-18, 129 at 13.) On December 8, 2016, Ronel Singh, on behalf of RT, was driving a semi-truck eastbound on I-80 to deliver this shipment. (ECF No. 124 at 17.) Although road conditions were icy and snowy that day, Ronel Singh drove in an unsafe manner. (Id. at 17-18.) Ronel Singh alleged that he encountered some black ice and his truck overturned, blocking the westbound lanes. (ECF Nos. 124 at 17-18, 129 at 6.) Miller was driving westbound on I-80 and could not avoid the semi-truck. (ECF No. [*3] 129 at 13.) He became lodged and pinned under the tractor-trailer and suffered significant injuries, which rendered him a quadriplegic. (ECF Nos. 32 at 3, 129 at 13.)

Miller subsequently brought this lawsuit against CHR and various other Defendants. He specifically asserted two claims against CHR in the Amended Complaint—vicarious liability and negligent hiring. (ECF No. 32 at 6-7.) CHR previously filed a motion for judgment on the pleadings.³ (ECF No. 59.) In his response to that, Miller agreed to dismiss the vicarious liability claim without prejudice.⁴ (ECF No. 70 at 1-2.) CHR then filed the Motion, requesting summary judgment in its favor on Miller’s remaining negligent hiring claim against CHR. (ECF No. 124 at 1.)

III. LEGAL STANDARD

“The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which [*4] a reasonable factfinder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (citation omitted).

The moving party bears the burden of showing that there are no genuine issues of material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material [*5] facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient[.]” Anderson, 477 U.S. at 252.

IV. DISCUSSION

CHR contends that summary judgment is appropriate because “Miller cannot establish, as a matter of law, that CHR violated the standard of care and/or that CHR’s conduct was the proximate cause of the accident which injured Miller.” (ECF No. 124 at 6.) The Court first addresses CHR’s breach argument, then its proximate cause argument. Because genuine disputes of material fact remain as to whether CHR violated its duty of care and whether CHR’s actions were the proximate cause of the accident, the Court will deny CHR’s Motion.

A. Breach of Duty

CHR argues that it did not violate its duty because the company performed a reasonable background check on RT, by ensuring that RT was registered by the Federal Motor Carrier Safety Administration (“FMCSA”)⁵ and had federally mandated insurance. (Id. at 22.) CHR also suggests that there is no evidence it actually knew that RT was a “chameleon carrier” of Rhea Trans (“Rhea”).⁶ (Id.) Miller counters that CHR ignored serious red flags that RT was a chameleon carrier and unfit for the job, and failed to further [*6] investigate the motor carrier. (ECF No. 129 at 20-21.) The Court agrees with Miller.

To prevail on a negligence claim under Nevada Law, the plaintiff must demonstrate “(1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages.” Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818, 221 P.3d 1276, 1280 (Nev. 2009) (citation omitted). For negligent hiring, there is a “general duty on the employer to conduct a reasonable background check on a potential employee to ensure that the employee is fit for the position.” Burnett v. C.B.A. Sec. Serv., 107 Nev. 787, 820 P.2d 750, 752 (Nev. 1991) (citation omitted). The employer violates this duty “when it hires an employee even though the employer knew, or should have known, of that employee’s dangerous propensities.” Hall v. SSF, Inc., 112 Nev. 1384, 930 P.2d 94, 98 (Nev. 1996) (citation omitted).

The Court is persuaded that a reasonable juror could find that several “red flags”⁷ should have triggered CHR to further investigate RT. See Anderson, 477 U.S. at 250-51. First, Miller points to CHR’s admission that it previously contracted with Rhea in 2013 and did not remove Rhea from its system until 2017. (ECF Nos. 129 at 7, 130-2 at 3.) Rhea was a motor carrier owned by Ronel Singh, the driver in the accident, that had its license permanently revoked⁸ by the FMCSA in 2014 due to multiple, egregious violations. (ECF No. 129 at 7-8.) Ronel Singh was [*7] listed as Rhea’s owner in its 2013 contract with CHR. (ECF No. 125-1 at 180.) According to Miller, Ronel Singh subsequently formed RT and applied for FMCSA registration under his father’s name, “Kuwar.” (ECF Nos. 129 at 8, 130-6 at 2-3.) Ronel Singh and his father have the same last name, and Kuwar Singh was listed as RT’s owner in its 2014 contract with CHR. (ECF Nos. 125-1 at 165, 129 at 8.) Miller suggests that CHR’s long history with Rhea and the identical last names should have indicated to CHR that RT was a chameleon carrier of Rhea, and unfit to be hired. (ECF No. 129 at 7-8, 21.) This is because FMCSA applicants with chameleon characteristics are three times more likely to be involved in severe crashes than those without chameleon characteristics, since they “reincarnate or re-brand with the same ownership, assets, or drivers but do not change their culture or unsafe practices.”⁹ (Id. at 9.) Moreover, chameleon or reincarnated carriers are prohibited by FMCSA regulations. See 49 CFR § 385.1005.

Next, Miller contends that CHR should have known that RT was a chameleon carrier because [*8] the phone numbers and email addresses for RT and Rhea were the same in CHR’s database.¹⁰ (ECF Nos. 129 at 10, 21, 138-1 at 2-4.) Both Ronel and Kuwar Singh were also listed as points of contact in CHR’s sign-up form for RT. (ECF Nos. 129 at 10, 130-9 at 2.) Notably, the time stamp on the sign-up form was February 3, 2014—before the contract date between RT and CHR. (ECF Nos. 125-1 at 165, 129 at 10, 130-9 at 2.) CHR admits that the company has an internal system that checks for chameleon carriers by looking at a new carrier’s “address, telephone and contract signer information” to identify previous carriers with same information. (ECF No. 124 at 13-14.) If the system finds a match, CHR’s “carrier service group investigates the connection and whether the other entity was shut down for safety reasons, had its registration revoked, or otherwise had issues with the FMCSA . . . [i]f any of those reasons are found, CHR will not do business with the new motor carrier.” (Id. at 14.) Despite the matching information between RT and Rhea, and Ronel Singh being listed as a point of contact for RT, CHR’s carrier services group allegedly never conducted further investigation into RT. (ECF No. 129 [*9] at 10.) A reasonable factfinder could conclude that CHR’s failure to investigate RT, despite these blatant warning signs, constitutes breach because it violated CHR’s own protocols and was not a reasonable background check. See Hall, 930 P.2d at 98; Anderson, 477 U.S. at 248-49.

In sum, the plethora of evidence Miller provides creates a genuine dispute of material fact for the breach issue and challenges CHR’s assertion that there is no evidence CHR actually knew RT was a chameleon carrier at the time of hiring. (ECF No. 124 at 7, 23.) See Anderson, 477 U.S. at 256. However, even if CHR lacked actual knowledge, a rational trier of fact could find that CHR should have made the connection between RT and Rhea and investigated further, especially given Ronel and Kuwar’s identical last names, CHR’s past relationship with Rhea, Ronel Singh being listed as the point of contact for RT, the identical phone numbers and email addresses for RT and Rhea, and CHR’s own protocols for chameleon carriers. See Hall, 930 P.2d at 98 (noting that breach occurs even when the employer should have known of the employee’s dangerous propensities) (emphasis added); see also Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175, 1181 (Nev. 1996) (finding there was a genuine dispute of material fact for negligent hiring because the plaintiff produced evidence [*10] that the hired employee had been fired from past jobs due to his violent behavior, had a criminal record, and had lied on his application).

Thus, drawing all inferences in the light most favorable to Miller, the Court finds that there are genuine issues of material fact as to whether CHR breached its duty of care. See Kaiser Cement Corp., 793 F.2d at 1103; Hall, 930 P.2d at 98. Moreover, denial of summary judgment is justified because the issue of breach and whether a party’s conduct is reasonable are generally questions of fact reserved for the jury. See Pennington v. Ed’s Tire Serv., Inc., 130 Nev. 1228 (2014); Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209, 212 (Nev. 2001).

B. Proximate Cause

CHR argues that Miller cannot establish proximate cause because there is no evidence CHR knew of the relationship between Rhea and RT, and because CHR had no control over which driver and vehicle were selected to deliver the shipment. (ECF No. 124 at 23, 26.) CHR also suggests that speeding by both parties, rather than the vehicle’s brake issues and RT’s prior hours of service violations, was the cause of the accident. (Id. at 26-27.) The Court disagrees that these arguments are sufficient to warrant summary judgment in CHR’s favor.

A reasonable factfinder could conclude that the accident was a foreseeable harm of CHR’s inadequate and unreasonable screening measures, [*11] and that CHR’s negligence created an undue risk to others by placing a dangerous motor carrier on the road. See Anderson, 477 U.S. at 250-51 (noting that summary judgment is inappropriate where reasonable minds could differ on the material facts at issue); see also Taylor v. Silva, 96 Nev. 738, 615 P.2d 970, 971 (Nev. 1980) (noting that “[a] negligent defendant is responsible for all foreseeable consequences proximately caused by his or her negligent act”) (citation omitted). A rational trier of fact could also find that CHR’s failure to investigate RT, despite multiple warning signs, was part of the “natural and continuous sequence, unbroken by any efficient intervening cause” that produced the accident. See Taylor, 615 P.2d at 971 (citations omitted); see also Mahan v. Hafen, 76 Nev. 220, 351 P.2d 617, 620 (Nev. 1960).

Moreover, summary judgment is inappropriate because proximate cause generally concerns issues of fact that should be reserved for the jury. See Nehls v. Leonard, 97 Nev. 325, 630 P.2d 258, 260 (Nev. 1981) (citations omitted); see also Flaherty v. Kelly, 129 Nev. 1114 (2013) (noting that the Nevada Supreme Court is “reluctant to affirm summary judgment [in negligence cases] . . . because, generally, the question of whether a defendant was negligent in a particular situation is a question of fact for the jury to resolve”) (citation omitted). Thus, drawing all inferences in the light most favorable to Miller, the Court finds that [*12] there are genuine disputes of material fact as to the proximate cause issue that should be reserved for trial. See Kaiser Cement Corp., 793 F.2d at 1103; Anderson, 477 U.S. at 256.

V. CONCLUSION

The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court.

It is therefore ordered that CHR’s motion for summary judgment (ECF No. 124) is denied.

DATED THIS 22nd Day of February 2022.

/s/ Miranda M. Du

MIRANDA M. DU

CHIEF UNITED STATES DISTRICT JUDGE

End of Document

¹Miller filed a response (ECF No. 129) and CHR filed a reply (ECF No. 133) to the Motion.

²The following facts are undisputed unless noted otherwise.

³The Court previously granted CHR’s motion for judgment on the pleadings because the Court found that Miller’s common law negligence claim was preempted by the Federal Aviation and Administration Authorization Act. (ECF No. 84.) The Ninth Circuit reversed the Court’s decision, and the order was vacated. (ECF No. 105.) CHR subsequently submitted a Petition for Writ of Certiorari to the U.S. Supreme Court regarding the Ninth Circuit’s reversal and remand. (ECF No. 123.) That petition is currently pending before the U.S. Supreme Court, which asked the Acting Solicitor General to weigh in on the issue. (ECF No. 136.)

⁴CHR sought dismissal of Miller’s vicarious liability claim because it was not an independent cause of action, but rather a theory of liability. (ECF No. 59 at 10-11.) There is no dispute that Miller consented to dismiss his vicarious liability claim without prejudice. (ECF No. 70 at 1-2.). However, Miller argues that he is not precluded from pursuing the vicarious liability theory under his negligence claim at trial. (ECF No. 129 at 28.) While vicarious liability as a claim was dismissed, the Court agrees that Miller is not precluded from asserting vicarious liability as a theory of liability as part of his remaining claim.

⁵According to CHR, the FMCSA is an administrative agency that regulates interstate motor carriers, issues safety regulations for motor carriers, completes compliance reviews, and assigns safety ratings to carriers. (ECF No. 124 at 8-9.) See 49 C.F.R. § 385.1; 49 C.F.R. § 385.3.

⁶The U.S. Department of Transportation prohibits two or more motor carriers from “us[ing] common ownership, common management, common control, or common familial relationship to enable any or all such motor carriers to avoid compliance, or mask or otherwise conceal non-compliance, or a history of non-compliance, with statutory or regulatory requirements.” 49 C.F.R. § 385.1005. The parties refer to these carriers as “chameleon carriers,” a term the Court adopts for the purposes of consistency and clarity. (ECF Nos. 124 at 12, 129 at 8-9.)

⁷Miller also cites to findings by expert witness Steven Belyus that CHR ignored red flags within RT’s own record prior to the accident. (ECF No. 129 at 11-15.) CHR objects to the Court’s consideration of Belyus’ affidavit for this Motion since Miller previously confirmed that he would not be calling Belyus to testify about causation at trial. (ECF No. 133 at 16.) The Court need not decide this issue at this stage because the Court does not rely on Belyus’ affidavit in its decision and Miller has presented other evidence to show that genuine issues of material fact exist.

⁸According to Miller, the FMCSA revoked Rhea’s registration several times in 2013 and 2014, and never reinstated the registration due to Rhea’s “failure to maintain the minimum required insurance.” (ECF No. 129 at 7.) Rhea was also cited for driver-related, vehicle-related, hours-of-service, and logbook violations. (Id. at 7-8.)

⁹Miller points to data about chameleon carriers from the U.S. Government Accountability Office. See Motor Carrier Safety: New Applicant Reviews Should Expand to Identify Freight Carriers Evading Detection, U.S. Government Accountability Office, https://www.gao.gov/products/gao-12-364 (last visited Feb. 16, 2022). In CHR’s reply, it broadly asks the Court to exclude “improper documents and websites” from its consideration because Miller failed to provide “foundation, authentication, nor even a request for the Court to take judicial notice of the same.” (ECF No. 133 at 7.) CHR does not specify which websites it takes issue with. (Id.) However, to the extent CHR objects to the Court’s consideration of the Accountability Office’s website and data, Federal Rule of Evidence 201 permits the Court to take judicial notice on its own of a fact that is not subject to reasonable dispute because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Here, the chameleon carrier data is highly relevant to Miller’s argument and has been generated by the Accountability Office, using FMCSA data. The Court will therefore take judicial notice of the aforementioned source and data.

¹⁰CHR argues that RT and Rhea were categorized as “related parties” three months after the accident, and that the physical addresses for the carriers were different in the system. (ECF No. 133 at 12-13.) Screenshots from CHR’s database confirm that the “Relationship Note” between RT and Rhea was added in March 2017. (ECF No. 138 at 7.) However, this does not negate the contention that Rhea and RT’s phone numbers and email addresses were identical in CHR’s system prior to the December 2016 accident and the March 2017 update. (Id.)