United States District Court, D. Nebraska
CERTAIN UNDERWRITERS AT LLOYD'S AND THOSE COMPANIES SEVERALLY SUBSCRIBING TO BOEING POLICY No. MARCW150053 AND RELATED POLICIES GOVERNING THE CARGO, Plaintiffs,
SOUTHERN PRIDE TRUCKING, INC., et al., Defendants.
MEMORANDUM AND ORDER
M. GERRARD, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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.
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.
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.
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.
Southern Pride and Thunder Rolls
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 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.
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.
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).
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.
Bauer Built and Road Star
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.
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.
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
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, ...