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Certain Underwriters at Lloyd's v. Southern Pride Trucking, Inc.

United States District Court, D. Nebraska

January 30, 2018

CERTAIN UNDERWRITERS AT LLOYD'S AND THOSE COMPANIES SEVERALLY SUBSCRIBING TO BOEING POLICY No. MARCW150053 AND RELATED POLICIES GOVERNING THE CARGO, Plaintiffs,
v.
SOUTHERN PRIDE TRUCKING, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD, UNITED STATES DISTRICT JUDGE

         This dispute involves an accident between two tractor trailers on Interstate 80 near Wood River, Nebraska. The accident resulted in significant damage to a Boeing airplane engine, which has led to this multi-party dispute. Specifically, Boeing's insurers, "Certain Underwriters at Lloyd's and Those Companies Severally Subscribing to Boeing Policy Number MARCW150053 and Related Policies Governing The Cargo" (collectively, "Certain Underwriters"), are suing four entities which, they claim, caused or contributed to the accident: Southern Pride Trucking, Thunder Rolls Express, Bauer Built, and Road Star Carrier. Several of the parties have filed motions for summary judgment, which will be granted in part, and denied in part, as set forth below.

         BACKGROUND

         This Court's prior Memorandum and Order (filing 159) set forth the background of this case in detail. Generally speaking, the relevant facts are as follows. Southern Pride, a trucking company, agreed to transport a Boeing airline engine from Ohio to Washington. Filing 115 at 3-4. Rather than using its own fleet of tractor trailers, Southern Pride subcontracted the job to defendant Thunder Rolls, a trucking company based in Indiana. Filing 115 at 3. Joseph Womack, Thunder Rolls' owner and sole proprietor, picked up the engine from a General Electric plant in Ohio. After loading the engine onto his trailer, Womack set out for Everett, Washington. See filing 124-1 at 6. Womack's route took him through Wood River, Nebraska, as he proceeded west on Interstate 80. See filing 191-1 at 8.

         Approximately an hour and a half before Womack reached Wood River, a different westbound tractor trailer had pulled over on the westbound side of Interstate 80 with a flat tire. Filing 191-1 at 8. That tractor trailer was owned by defendant Road Star. Filing 191-1 at 8. Road Star contacted defendant Bauer Built, which provides roadside assistance to the interstate trucking industry. Soon after, a Bauer Built employee arrived to replace the tire. Filing 191-1 at 9. Both were still on the north side of the road as Womack approached.

         Womack, who was driving in the right lane, was approximately 100 feet away from Road Star's disabled truck when he first noticed it. Filing 191-1 at 9. Womack attempted to move into the left lane to avoid any potential contact with the vehicle. Filing 191-1 at 9. But as he began to move over, Womack noticed a pickup truck in his side-view mirror. Filing 124-1 at 40. So, Womack "came back to the right to get [to the] center of [his] lane." Filing 124-1 at 40. Womack collided with Road Star's truck. The airplane engine dislodged from Womack's trailer, landing on the road. See filing 124-1 at 11. According to Certain Underwriters, the engine is no longer functional, resulting in approximately $18, 000, 000 in damages. Filing 191-1 at 22.

         Boeing and its insurer, Certain Underwriters, filed this action against Southern Pride, Thunder Rolls, Road Star, and Bauer Built. Certain Underwriters and the first two defendants, Southern Pride and Thunder Rolls, have settled their claims. Filing 206. But Certain Underwriters has also sued the latter two defendants-Road Star and Bauer Built-for simple negligence and negligence per se. Road Star has also filed crossclaims against Southern Pride and Thunder Rolls for (1) negligence; (2) negligence per se; (3) indemnification; and (4) contribution. Filing 47 at 9-14. And Bauer Built has filed crossclaims against Southern Pride and Thunder Rolls for negligence and contribution. Filing 57 at 7-9.

         STANDARD OF REVIEW

         Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

         On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.

         DISCUSSION

         Each of the four defendants (and Certain Underwriters) have moved for summary judgment on various grounds. Because Southern Pride and Thunder Rolls raise largely the same arguments, their motions will be considered together. The Court will then turn to Road Star and Bauer Built's motions, which also raise common issues of fact and law.

         I. Southern Pride and Thunder Rolls

         Generally speaking, Southern Pride and Thunder Rolls argue that their respective liability, if any, is governed by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. Filing 188 at 13-17. To that end, Southern Pride and Thunder Rolls contend nearly all[1] remaining state law claims of crossclaimants Bauer Built and Road Star are preempted by the Carmack Amendment, and therefore fail as a matter of law. Filing 188 at 17.

         But before the Court reaches the merits of the parties' arguments, it must first take a brief detour through the history, and applicability, of the Carmack Amendment. The Carmack Amendment provides a single uniform rule for carriers operating in interstate commerce. Rocky Ford Moving Vans, Inc. v. United States, 501 F.2d 1369, 1372 (8th Cir. 1974); see 49 U.S.C. § 14706. To that end, the statutory provisions "supercede the diverse requirements of state legislation and decisions, and render invalid all agreement(s) in derogation of them." Rocky Ford Moving Vans, 501 F.2d at 1372 (cleaned up). Under the Carmack Amendment, a carrier of an interstate shipment is "liable to the person entitled to recover under the receipt or bill of lading." 49 U.S.C. § 14706(a)(1). The person "entitled to recover" can bring suit for the "actual loss or injury to the property caused" against any carrier in the course of the interstate shipment. 49 U.S.C. § 14706(a)(1). A shipper can thus be confident that the carrier will be liable for any damage that occurs to its shipment. REI Transport, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008). And a carrier can accurately gauge, and thus insure against, any liability it may face when it agrees to carry something. Id.

         The Carmack Amendment achieves uniformity in two primary respects-of which the latter is at issue here. First, the Amendment places "substantive limits on the rights of carriers to contract away liability." REI, 519 F.3d at 697 (citing Adams Express Co. v. Croninger, 226 U.S. 491, 505 (1913)). Second, the statute preempts state causes of action against carriers for damaged or lost goods. See Adams Express Co., 226 U.S. at 505-06; Underwriters at Lloyds of London v. North American Van Lines, 890 F.2d 1112, 1120 (10th Cir. 1989). Thus, as some federal circuits have held, a shipper (here, Certain Underwriters) cannot bypass the statute simply by filing a state suit for the damaged goods unless the claim seeks to remedy a "separate and independently actionable harm." North American Van Lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 458 (7th Cir. 1996); see Rini v. United Van Lines, Inc., 104 F.3d 502, 506 (1st Cir. 1997); Smith v. United Parcel Serv., 296 F.3d 1244, 1249 (11th Cir. 2002).

         Southern Pride and Thunder Rolls claim that Road Star's crossclaims for negligence, negligence per se, indemnity, and contribution, and Bauer Built's crossclaims for negligence and contribution, are preempted under the Carmack Amendment. Specifically, Southern Pride and Thunder Rolls argue that because the Carmack Amendment preempts state law causes of action, Bauer Built and Road Star's contribution- and negligence-related claims must be dismissed as a matter of law. But as Bauer Built and Road Star correctly point out, Carmack preemption is only an issue as between shippers and carriers. See Fulton v. Chicago, Rock Island & P. R. Co., 481 F.2d 326, 331 (8th Cir. 1973) ("the Carmack Amendment has preempted suits in specific negligence by holders of bills of lading against their carriers") (emphasis added)); see also Mason & Dixon Intermodal, Inc. v. Lapmaster Int'l LLC, 632 F.3d 1056, 1061 (9th Cir. 2011) ("the Carmack Amendment preempts all state and common law claims for relief against a carrier for damage to goods in interstate carriage" (emphasis added)). And neither Bauer Built's nor Road Star's crossclaims are in any way related to the shipment or carrying of cargo. Rather, as described in more detail below, the crossclaimants allege that Thunder Rolls' driver was, among other reasons, negligent in failing to keep a proper lookout. So, Southern Pride and Thunder Rolls' motion for summary judgment on these grounds will be denied.

         II. Bauer Built and Road Star

         Certain Underwriters has also sued Road Star and Bauer Built for negligence and negligence per se. Filing 115 at 9-10. Road Star and Bauer Built seek summary judgment on those claims arguing, among other things, that Womack was an efficient intervening cause, and thus, the sole proximate cause of the accident. See filing 191-1 at 16; filing 193 at 22. In the alternative, Bauer Built and Road Star request that the Court "enter an order declaring that Nebraska's joint and several liability law, or any other joint and several liability law, is not applicable[.]" Filing 193 at 54; filing 214 at 42. Instead, Bauer Built and Road Star argue that liability should be apportioned commensurate with the degree, if any, of Bauer Built's and/or Road Star's respective fault. Filing 193 at 54; filing 214 at 42.

         The defendants' former contention touches on a broader argument underlying much of the parties' dispute: whether the Court should apply federal common law, as Certain Underwriters argues, filing 190 at 38, or state law negligence principles, as Bauer Built and Road Star contend, filing 191-1 at 102; filing 197 at 7. According to Certain Underwriters, federal common law governs because its negligence per se claim is premised on alleged violations of 49 C.F.R. § 392-federal motor carrier regulations. Filing 190 at 37-38. And it applies to the simple negligence claims, Certain Underwriters argues, because the Supreme Court has expressed a "clear requirement" of uniformity in the movement of interstate cargo. Filing 190 at 39. To that end, Certain Underwriters seems to suggest that because the underlying accident involved the interstate shipment of cargo, and thus the application of the Carmack Amendment, federal common law necessarily preempts any application of state court law or procedure. See filing 190 at 39-44.

         But those arguments fail for at least two reasons. First, Certain Underwriters' claims against Bauer Built and Road Star are entirely unrelated to the shipment of interstate cargo and, for all practical purposes, have no meaningful connection to the Carmack Amendment. Rather, Certain Underwriters allege that Bauer Built and Road Star were negligent by failing to take certain precautionary measures-such as adequately warning oncoming traffic of their disabled status. And Certain Underwriters has provided no authority to suggest that, under those circumstances, federal common law applies. Second, federal courts routinely apply the law of the state in determining the effect, if any, of a violation of 49 C.F.R. § 392, et seq. See e.g., Dmitruk v. George and Sons' Repair Shop, Inc., 217 Fed.Appx. 765, at 768-69 (10th Cir. 2007) (applying Colorado law); Estes v. USA Truck Inc., No. 97-30569, 1998 WL 792663, at *2 (5th Cir. Oct. 29, 1998) (applying Louisiana law); Aragon v. Wal-Mart Stores East, LP, 924 F.Supp. 2d. 1066, 1071 (E.D. Mo. 2013); Illinois Cent. R Co. v. Cryogenic Transp. Inc., 901 F.Supp.2d 790, 808 (S.D.Miss. 2012); Spence v. ESAB Group, Inc., No. 1:07-CV-583, 2008 WL 450436, at *2 (M.D. Pa. Feb. 15, 2008). So, the Court will evaluate the parties' dispute under Nebraska law.

         A. Bauer Built

         As discussed above, Bauer Built provides, among other services, roadside assistance to the interstate trucking industry. On the day of the accident, Bauer Built's employee, Brandon Salisbury, was dispatched to the eventual scene of the accident to service Road Star's flat tire. Filing 193 at 8. Salisbury had finished changing the tire, and was making final adjustments, ...


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