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.
matter is before the Court on Bauer Built's and Road
Star's joint Motion to Reconsider (filing 232) asking the
Court to revise several aspects of its Memorandum and Order
of January 30, 2018 (filing 217). Southern Pride and Thunder
Rolls have also filed a separate but related motion for
summary judgment (filing 241) asking the Court to dismiss
Bauer Built's and Road Star's contribution claims.
And there are several outstanding motions mostly relating to
discovery and case progression. Filing 256; filing 258;
filing 261; filing 264; filing 269; filing 286; filing 311;
filing 315; filing 319; filing 325.
forth below, the Court will grant Bauer Built's and Road
Star's motion to reconsider in part, and deny it in part.
The Court will grant Southern Pride's and Thunder
Rolls' motion for summary judgment. And the Court will
clear out the remaining discovery and progression motions so
that the parties can assess the effect of the Court's
ruling on the motion to reconsider and motion for summary
MOTION TO RECONSIDER
Bauer Built and Road Star move for reconsideration of this
Court's Memorandum and Order of January 30, 2018 (filing
217). Specifically, they ask the Court to alter
its conclusions with respect to two issues: (1) apportionment
of liability, and (2) proximate cause. Their arguments with
respect to proximate cause are without merit, and will not be
revisited here- the Court abides by its previous decision.
Their arguments with respect to liability, however, raise
broader issues of law and policy not previously addressed by
the parties. And those issues warrant
parties have, at various points in this litigation, made
inconsistent arguments. Compare, e.g., filing 131 at
16, withfiling 234 at 10. As a general matter, the
positions taken by the parties up to this point, embedded in
thousands of pages of briefing, often seem to be based on
advocacy of the moment, as opposed to a genuine attempt to
grapple with the complex issues presented by this case-and
therefore to help the Court grapple with those issues as
well. In other words, instead of describing the forest, the
parties have been pelting the Court with trees. And the
barrage of filings has created its own problems, because the
pleadings and motions never seem to sit still long enough to
present a stationary target, for the Court or the parties-to
the point that one of the pending motions (which will be
dealt with below) actually asks the Court to rule on whether
certain claims have been pled. Filing 319.
Court's previous memorandum and order (filing 217) solved
some of those problems, but exacerbated others. It did,
however-if nothing else-have the salutary effect of narrowing
the parties' vision, such that the last round of briefing
on the pending motions was a bit more focused. So, the Court is
now in a position, for perhaps the first time in this
litigation, to concretely assess the scope of the remaining
parties' liability-which it will now
the Court reaches two conclusions with respect to the
apportionment of liability and the applicability of
Nebraska's contributory negligence statutes. First, the
Court finds that because Certain Underwriters' Carmack
Amendment claims have been dismissed, and the remaining
claims sound in negligence, Nebraska's contributory
negligence statutes are applicable. And second, the Court
concludes that it erred in the first instance in concluding
that those statutes were inapplicable, regardless of whether
Carmack Amendment claims were pending. Here's why.
Effect of Dismissing Carmack Amendment Claims Certain
originally sued four defendants for their alleged role in
causing or contributing to a roadside accident. Filing 115.
Two of the defendants-Southern Pride and Thunder Rolls-were
sued under the Carmack Amendment. See filing 115 at
7. The other two defendants-Bauer Built and Road Star-were
sued in negligence. Filing 115 at 9-11. Certain Underwriters
has since settled (and dismissed) its claims against Southern
Pride and Thunder Rolls, leaving only its remaining claims in
negligence against Bauer Built and Road Star. Filing 203;
filing 206. Thus, the question before the Court is: What
effect, if any, did the settlement and dismissal have on the
apportionment of liability?
threshold matter, there are two bodies of substantive law
that govern the apportionment of liability in Nebraska civil
tort actions: common law, and Nebraska's comparative
negligence statutes. The comparative negligence statutes
apply only where contributory negligence may be a
defense to the underlying claim. Neb. Rev. Stat. §
25-21, 185.07. State common law applies in every other
instance. Dykes v. Scotts Bluff Cty. Agr. Soc.,
Inc., 617 N.W.2d 817, 823 (Neb. 2000). But before
addressing which body of law governs this case, it is worth
discussing how they are similar, and different, as that
relates to the underlying dispute.
comparative negligence statutes abrogate the common law in
some respects, but do not supplant it entirely. Indeed, the
statutes retain common law joint and several
liability for economic damages. Neb. Rev. Stat. § 25-21,
185.10; Tadros v. City of Omaha, 735 N.W.2d 377, 382
(Neb. 2007). So, as a general matter, joint and several
liability applies under the statutes and common law where-as
here-two or more causes produce a single indivisible injury.
Kudlacek v. Fiat S.p.A., 509 N.W.2d 603, 612 (Neb.
analysis changes, however, when a claimant settles with one
or more of the jointly and severally liable defendants. At
common law, the "traditional rule" for apportioning
liability amongst the remaining, non-settling defendants is
applied. Under the common-law traditional rule, "[when]
the plaintiff settles with one of the jointly and severally
liable tort-feasors, then the plaintiff's recovery
against the remaining tort-feasors is reduced by the actual
settlement amount." Tadros, 735 N.W.2d at 380.
So, non-settling tort-feasors remain jointly and severally
liable for the total damages assessed, less the actual dollar
amount of the settling parties' agreement.
statutory scheme abrogates the traditional rule. Under the
statute, when the plaintiff settles with one of the jointly
and severally liable defendants, the plaintiff's recovery
against the remaining tort-feasors is reduced by the settling
tort-feasor's proportionate share of liability.
Id. at 383. Thus, by settling with a joint
tort-feasor, the claimant "forfeits . . . joint and
several liability," and the trier of fact must instead
apportion a percentage of liability to each defendant.
Id. at 382. The court then reduces the total
percentage apportioned to the settling defendants from the
overall damage award. Id. And because any right to
contribution arises only when a joint tort-feasor discharges
more than his or her proportionate share of the judgment,
that apportionment has the practical effect of extinguishing
contribution claims by the remaining defendants against a
settling defendant. Id.
surprisingly, the parties disagree as to which law governs
this dispute. Bauer Built and Road Star argue that the
statutes apply, and that Certain Underwriters-as a result of
its settlements-"[cannot] recover from Bauer Built and
Road Star more than their proportionate share of individual
liability . . . as determined by the trier of fact."
Filing 233 at 4. Certain Underwriters, however, argues that
common law applies, and that Bauer Built and Road Star are
jointly and severally liable for any and all damages awarded
by the jury (less Certain Underwriters' settlement with
Southern Pride and Thunder Rolls).
Nebraska Supreme Court has suggested that, when a negligence
defendant is sued alongside a strict liability defendant,
courts do not apply the statutory scheme. See Shipler v.
General Motors Corp., 710 N.W.2d 807, 825 (Neb. 2006).
After all, in order to trigger the statutory scheme,
contributory negligence must be, pursuant to law, a potential
defense to the underlying claim. § 25-21, 185.07. And
contributory negligence is not a defense to an action based
upon strict liability. Shipler, 710 N.W.2d at
831-32. So, in Shipler, the Nebraska Supreme Court
affirmed applying common law principles where the plaintiff
sought recovery in both negligence and strict
liability. Id. at 824-32.
here, unlike Shipler, Certain Underwriters has
voluntarily dismissed its claims against the only two
defendants who were arguably sued in strict liability.
See filing 203; filing 206. In other words, there
are no strict liability claims that, pursuant to
Shipler, might preclude application of
Nebraska's statutory scheme. Id. Shipler does
not expressly address whether an action is one "to which
contributory negligence may be, pursuant to law, a
defense" within the meaning of § 25-21, 185.07 when
strict liability claims are settled-and therefore
dismissed-before trial. And as Road Star and Bauer Built
correctly point out, the applicability of Nebraska's
statutory scheme may vary during litigation depending on the
then-pending claims. See generally, filing 233 at
8-9; cf. Tadros, 735 N.W.2d at 380.
least at this stage of the litigation, under an ordinary
reading of § 25-21, 185.07, the statutory scheme
governs. And that is true because the remaining claims sound
in negligence-to which contributory negligence may be a
defense pursuant to law. See, e.g., Jensen v. Archbishop
Bergan Mercy Hosp., 459 N.W.2d 178, 184 (Neb. 1990). The
next question, then, is whether liability should be
apportioned pursuant to § 25-21, 185.11. That's not a
foregone conclusion: the Nebraska Supreme Court said in
Tadros that § 25-21, 185.11 provides for a
pro rata reduction of the plaintiff's recovery
because "the language of § 25-21, 185.11(1) is
similar to the language of Neb. Rev. Stat. § 25-21,
185.10, relating to the allocation of noneconomic damages
amongst multiple defendants, 'in direct proportion to
that defendant's percentage of negligence.'" 735
N.W.2d at 381. And the Court said in Shipler that
§ 25-21, 185.10 "allows the jury to compare the
negligent conduct of codefendants" but "does not
provide that one defendant's negligence may be compared
to another in a cause of action for strict liability in
tort." 710 N.W.2d at 830-31.
Court nonetheless concludes that § 25-21, 185.11(1)
should be applied. First, the Court sees little basis in the
statutory scheme to conclude that § 25-21, 185.11 does
not apply in any instance in which § 25-21, 185.07 is
satisfied, even if it was satisfied as a consequence of
dismissing other claims. Second, as a general matter, there
is no conceptual reason why comparative fault principles
cannot be used to apportion liability between tortfeasors
even when liability for one rests on strict liability and
liability for the other on negligence. See Frazer v. A.F.
Munsterman, Inc., 527 N.E.2d 1248, 1257 (Ill. 1988)
(collecting cases). And finally, as will be explained in more
detail below, the Carmack Amendment does contemplate
comparing the parties' negligence, even if it shifts and
raises the burden of proof with respect to such issues.
Accordingly, Certain Underwriters' claims against Bauer
Built and Road Star are to "be reduced by the amount of
[Southern Pride's and Thunder Rolls]'s share of the
obligation as determined by the trier of fact." §
that result makes sense. After all, as the Nebraska Supreme
Court articulated in Tadros, the law ought to
encourage rather than discourage settlement. 735 N.W.2d at
940. And under the common law rule, there is little, if any,
incentive to settle. Id. Indeed, common law fails to
provide finality of liability for the settling tort-feasor
because its remaining defendants maintain the right to
contribution. Id. But, under the statutory scheme,
finality and fairness are achieved: the non-settling parties
will not be prejudiced by a settlement amount over which they
had no control, the settling parties can be sure that their
share of liability is limited to the bargained-for settlement
amount, and the plaintiff may benefit in the event that its
settlement with settling parties exceeds their proportionate
shares of liability. Id.
arguing to the contrary, Certain Underwriters relies on
Downey v. W. Cmty. Coll. Area, in which the Nebraska
Supreme Court held that § 25-21, 185.11 did not apply
where the injured plaintiff received workers'
compensation benefits from his employer, then sued a
third-party tort-feasor for negligence. 808 N.W.2d 839, 845,
851-52 (Neb. 2012). According to Certain Underwriters,
Downey supports the proposition that "that
parties that do not face liability for negligence are not
within the statute and their fault, if any, will be
recoverable jointly and severally from the other
tortfeasors[.]" Filing 234 at 10 (emphasis omitted). But
Downey is clearly distinguishable-or, more to the
point, a workers' compensation claim is clearly
distinguishable from a Carmack claim.
Downey, the Nebraska Supreme Court held that the
employer was not a "released person" to whom fault
could be allocated under § 25-21, 185.11, because the
employer had never been a "person liable" in tort
for the injury. 808 N.W.2d at 851. But that's because
under the Nebraska Workers' Compensation Act,
"employers are immune from lawsuits by their
employees" and "an employer covered by workers'
compensation has no liability in tort[.]" Id.
at 852. As will be discussed in more detail below, however, a
Carmack claim "does indeed sound significantly in
tort." Fulton v. Chicago, Rock Island & P. R.
Co., 481 F.2d 326, 333 (8th Cir. 1973). Certain
Underwriters' argument to the contrary, see
filing 234 at 11, is squarely foreclosed by Eighth Circuit
precedent. And Downey also rests on the premise that
an employer whose concurring negligence contributed to an
employee's injury does not have a common liability with
the third party tort-feasor-a premise wholly at odds with the
joint and several liability that Certain Underwriters has
repeatedly insisted upon in this proceeding. Compare
Downey, 808 N.W.2d at 851, 853, with filing
201, passim, and filing 234 at 10.
the Court concludes that, following Certain Underwriters'
settlement with Southern Pride and Thunder Rolls, the plain
language of the statute and underlying policy considerations
support application of Nebraska's statutory scheme.
Nothing in § 25-21, 185.11 precludes apportioning fault
to a (formerly) strict liability defendant when, at the time
that liability is determined, the statutory scheme is
applicable by its terms. The Court concludes that, were the
Nebraska Supreme Court confronted with the question, that
court would conclude that the statutory scheme applies to
"civil actions to which contributory negligence may be,
pursuant to law, a defense" when contributory negligence
could be a defense at the time the case is submitted to the
finder of fact. Cf. Tadros, 735 N.W.2d at
380. Accordingly, § 25-21, 185.11 will govern this
dispute at trial.
Applicability of Contributory Negligence Statutes
even absent the dismissal of the Carmack Amendment claims,
the Court has reconsidered its holding regarding the
applicability of Nebraska's contributory negligence
statutes in this case. In the Court's Memorandum and
Order of January 30, 2018 (filing 217), the Court found that
Nebraska's comparative negligence statutes would not
apply here, because they do not apply in an action based in
part on strict liability. Filing 217 at 19 (citing
Shipler, 710 N.W.2d at 826). Upon further
consideration of this complex issue, the Court now concludes
why starts with Shipler. In Shipler, the
plaintiff had been injured in an automobile accident and sued
two defendants: the driver of the vehicle in which the
plaintiff had been a passenger, and the manufacturer of the
vehicle. Id. at 818. She alleged, as relevant, that
the driver had been negligent and that the vehicle was
defective. Id. Under Nebraska law,
[i]n a cause of action based on negligence, the question
involves the manufacturer's conduct, that is, whether the
manufacturer's conduct was reasonable in view of the
foreseeable risk of injury, whereas in a cause of action
based on strict liability in tort, the question involves the
quality of the manufactured product, that is, whether the
product was unreasonably dangerous.
Id. at 830 (citing Rahmig v. Mosley Machinery
Co., 412 N.W.2d 56 (Neb. 1987)). And, the Court
[s]trict liability is an abandonment of the fault concept in
product liability cases. No. longer are damages to be borne
by one who is culpable; rather they are borne by one who
markets the defective product. The question of whether the
manufacturer or seller is negligent is meaningless under such
a concept; liability is imposed irrespective of his
negligence or freedom from it. Even though the manufacturer
or seller is able to prove beyond all doubt that the defect
was not the result of his negligence, it would avail him
Id. at 829 (citing Smith v. Smith, 278
N.W.2d 155 (S.D. 1979)). So, the Shipler court
concluded that Nebraska's comparative negligence statutes
did not apply to a strict liability claim-e.g., a
product liability claim-because contributory negligence was
excluded as a defense under the statutes. See Id. at
there are meaningful differences between a Nebraska product
liability claim and a claim under the Carmack Amendment. The
Carmack Amendment has been characterized as imposing
"something close to strict liability upon originating
and delivering carriers." Mitsui Sumitomo Ins. Co.
v. Evergreen Marine Corp., 621 F.3d 215, 217 (2d Cir.
2010); see Essex Ins. Co. v. Barrett Moving
& Storage, Inc., 885 F.3d 1292, 1300 (11th Cir.
2018); PNH Corp. v. Hullquist Corp., 843 F.2d 586,
589 (1st Cir. 1988). And that's true to the extent that a
Carmack plaintiff need not prove negligence as part of its
prima facie case. But that doesn't mean
negligence isn't at issue.
Indeed, the nature of the carrier's duty under the
Carmack Amendment sounds in negligence. The carrier's
duty in the carriage of cargo is due care, it cannot
exculpate itself from loss or responsibility due to
negligence, [and] the carrier bears a heavy burden of proof
akin to res ipsa loquitur because it has peculiarly within
its knowledge the facts which may relieve it of liability,
but it is liable under the statute only for damage
"caused by" it and therefore can escape liability
by proving the damage was due to an excepted cause and that
it was free from negligence. Thus, despite the divergent
language in the various cases, it is clear ...