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Kozlov v. Associated Wholesale Grocers, Inc.

United States District Court, D. Nebraska

October 20, 2014

IGOR KOZLOV, Plaintiff,
v.
ASSOCIATED WHOLESALE GROCERS, INC., A Kansas Corporation; and PAMELA SCOTT, Personal Representative of the Estate of Michael E. Scott, Deceased; Defendants. ANDREI TCHIKOBAVA, Plaintiff,
v.
ASSOCIATED WHOLESALE GROCERS, INC., A Kansas Corporation; PAMELA SCOTT, Personal Representative of the Estate of Michael E. Scott, Deceased; and ALBATROSS EXPRESS, LLC; Defendants. PAMELA SCOTT, Personal Representative of the Estate of Michael E. Scott, Deceased, Plaintiff,
v.
IGOR KOZLOV, ALBATROSS EXPRESS, LLC, and UNICK, LLC; Defendants.

MEMORANDUM AND ORDER LEAD CASE

LAURIE SMITH CAMP, District Judge.

This matter is before the Court on three Motions for Partial Summary Judgment filed by Plaintiff Andrei Tchikobava ("Plaintiff Tchikobava" or "Tchikobava") (Filing No. 308 in Case No. 4:10cv3212); Plaintiff Igor Kozlov ("Plaintiff Kozlov" or "Kozlov") (Filing No. 333 in Case No. 4:10cv3211); and Defendants Associated Wholesale Grocers, Inc. ("AWG"), and Pamela Scott ("Pamela"), personal representative of the estate of Michael Scott ("Scott"), (collectively "Defendants") (Filing No. 338 in Case No. 4:10cv3211; Filing No. 342 in Case No. 4:10cv3212; Filing No. 358 in Case No. 8:10cv3191). For the reasons that follow, the motions will be denied.

BACKGROUND

These consolidated civil cases arise out of a motor-vehicle collision (the "Accident") involving a tractor trailer driven by Scott, and a tractor trailer driven by Kozlov. Unless otherwise indicated, the following facts were presented in the parties' briefs and supported by pinpoint citations to admissible evidence in the record. The parties have admitted these facts, or have not controverted them as required by NECivR 56.1[1] and Fed.R.Civ.P. 56.

The Accident

During the early morning hours of August 9, 2010, at approximately 1:00 a.m., a tractor trailer operated by Scott ran into the rear of a tractor trailer operated by Kozlov. Tchikobava, a passenger in the vehicle operated by Kozlov, was asleep at the time of the Accident. Scott died as a result of the Accident. At the time of the Accident, Scott was an agent and employee of AWG, and Kozlov and Tchikobava were employees of Albatross Express, LLC ("Albatross"). The vehicle operated by Kozlov was traveling westbound on Interstate 80. The roadway was flat. Nebraska State Troopers investigating the crash testified that the weather was clear. The headlights of the AWG truck were in good working order.

On the day before the Accident, August 8, 2010, Kozlov and Tchikobava left Hillside, New Jersey, at midnight Eastern Standard Time. Before leaving, they inspected their truck and trailer. Tchikobava drove from Hillside to the Indiana/Illinois state line, and then to a warehouse in Romeoville, Illinois. Kozlov was driving when they left the warehouse in Romeoville.

On the night before the Accident, Michael Scott reported to work at approximately 9:00 p.m. He had not worked during the prior for 33 hours. Before receiving keys to his truck, Scott reported to his dispatcher who ensured Scott was fit to drive. Scott then received information about his trip, and the keys to his truck.

After the Accident, Kozlov was interviewed by Nebraska State Troopers. Kozlov told the troopers he had been driving between 60 and 65 miles per hour when the Accident occurred. Kozlov later testified under oath that he was traveling at 60 to 65 miles per hour at the time of the Accident.[2] The Nebraska State Highway Patrol Investigation Report ("NSP Report") concluded that Kozlov was driving westbound on Interstate 80 at approximately 15 to 19 miles per hour. The posted minimum speed limit was 40 miles per hour. The NSP Report also stated that Scott was traveling at or near 70 miles per hour. Defendants' expert witnesses concluded that Kozlov was driving at approximately 13.5 miles per hour at the time of the accident.

The lead accident reconstructionist for the Nebraska State Highway Patrol ("NSP"), Trooper Nabegh Pedram, testified that the Accident was "all Kozlov's fault." Neal Tranthem, one of the state troopers at the scene of the Accident who was actively engaged in the investigation, did not find any skid marks on the pavement prior to the point of impact. The NSP Report concluded that Kozlov was the primary cause of the collision and that no evidence was identified to suggest any wrong doing by Scott. Trooper Trantham testified that all officers agreed with the conclusions contained in the NSP Report.

Albatross

Albatross is no longer in business. Albatross was owned by Vladimir Chen ("Chen"). Chen operated Albatross out of his home. Albatross never employed more than six drivers at one time. Prior to the Accident, Albatross had been cited for failing to have the appropriate reflective tape on the rear of its trailers. Albatross was also cited several times for maintenance violations of Department of Transportation regulations with regard to the company's trailers. On January 5th or 6th, 2010, an Albatross trailer was inspected by the Federal Motor Carrier Safety Administration and found to have inoperable lights. On April 8, 2010, an Albatross trailer was cited for reflective tape inadequacies. On July 4, 2010, an Albatross trailer was cited for inoperative stop lamps and inadequate reflective materials on the rear. On July 14, 2010, an Albatross trailer was cited for inoperable lamps.

Kozlov

Kozlov obtained a Commercial Motor Vehicle Operator's License from the State of New York in 2009. Kozlov was employed by Albatross as an over-the-road driver in July of 2010. Kozlov's first truck driving trip with Albatross was the first trip he had taken where there was not an experienced driver sitting next to him in the cab of the truck at all times. When Chen hired Kozlov, he was looking for inexperienced drivers. Chen wanted to give an employment opportunity to drivers who could not get a job elsewhere. After hiring Kozlov, Chen gave him a road test in a parking lot, but never took him out on a public road or highway. The road test involved one trip around ...


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