United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on the Motion for Partial Summary Judgment ("Motion") (Case No. 4:10-cv-3211, Filing No. 218) filed by Igor Kozlov ("Kozlov") and Albatross Express, LLC ("Albatross") against Associated Wholesale Grocers ("AWG"). For the reasons discussed below, the Motion will be denied.
These consolidated civil cases arise out of a motor-vehicle accident (the "Accident") involving a tractor trailer driven by Michael E. Scott ("Scott"), deceased, and a tractor trailer driven by Kozlov. The Motion was filed in the lead case, 4:10-cv-3211. AWG filed a claim against Kozlov and Albatross seeking damages for injuries allegedly resulting from the Accident. AWG alleges that at all relevant times (1) Kozlov was an employee of Albatross; (2) Kozlov was acting in the ordinary course of his employment, as an agent, servant, or employee of Albatross; and (3) Kozlov was operating the tractor-trailer with the permission and knowledge of Albatross. Albatross admits each of these allegations.
As part of this consolidated action, Kozlov, Andrei Tchikobava ("Tchikobava"), and Albatross all have asserted claims against AWG seeking damages for injuries resulting from the Accident. Kozlov, Tchikobava, and Albatross have all alleged that, at all relevant times AWG's driver, Scott, was employed by AWG and operating a tractor trailer within the scope and course of his employment. AWG admits that Scott was acting within the course and scope of his employment with AWG at the time of the Accident.
On February 3, 2014, Kozlov and Albatross filed their Motion, requesting that the Court "dismiss any claims of direct liability against Albatross for negligent hiring, entrusting, or training, or any claims arising from violation of federal regulations." (Motion at ¶ 6.) Kozlov and Albatross further request that the Court "declare that AWG may only proceed on its claim of vicarious liability." ( Id. ) Kozlov and Albatross base their requests for relief on the grounds that Albatross admits and acknowledges it is vicariously liable for any negligent acts of Kozlov.
In their "counterclaim, " AWG and Scott present three separate counts which are captioned:
Count I: Defendant/Counterclaimant Pamela Scott's Wrongful Death Claim Against Plaintiff Igor Kozlov
Count II: Defendant/Counterclaimant Pamela Scott's Negligence Claim Against Plaintiff Igor Kozlov
Count III: Defendant Associated Wholesale Grocers' Counterclaim Against Plaintiff Igor Kozlov.
(Filing No. 13 at ECF 1-8.)
While these captions do not identify a claim made by AWG against Albatross, they are subheadings under the heading "Counterclaim Against Plaintiff Igor Kozlov and Albatross Express, LLC: General Allegations." ( Id. at ECF 3.) In substance, Count III actually contains claims against both Kozlov and Albatross for damages sustained as a result of the Accident. ( Id. ) In Count III, AWG asserts claims against Albatross based on several theories of liability.
SUMMARY JUDGMENT STANDARD OF REVIEW
"Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, demonstrates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Gage v. HSM Elec. Prot. Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed.R.Civ.P. 56(c)). The court will view "all facts in the light most favorable to the nonmoving party and mak[e] all reasonable inferences in [that party's] favor." Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir. 2011). "[W]here the nonmoving party will bear the burden of proof at a trial on a dispositive issue... Rule 56(e) permits proper summary judgment motion to be opposed by any kind of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving party's ...