Bertram v. Progressive Se. Ins. Co.

652 F.Supp.3d 710

Lauren BERTRAM, et al. v. PROGRESSIVE SOUTHEASTERN INSURANCE CO. et al.

CASE NO. 2:19-CV-01478 LEAD

United States District Court, W.D. Louisiana, Lake Charles Division

Signed January 25, 2023

Jere Jay Bice, Michael G. Hodgkins, Peyton Frances Pawlicki, Veron Bice et al., Lake Charles, LA, Aaron James Broussard, Michael J. Williamson, Rachel K. Couvillion, Broussard & Williamson, Lake Charles, LA, for Lauren Bertram, et al.

Ian A. MacDonald, Jones Walker, Lafayette, LA, for Progressive Southeastern Insurance Co., Empire National Inc., Justin Anthony Chong.

Evan J. Godofsky, Morgan J. Wells, Jr., Larzelere Picou et al., Metairie, LA, for Convermat Corp.

Eric Blaise Berger, Sidney Joseph Angelle, Lobman Carnahan et al., New Orleans, LA, Chelsey Tucker Colontonio, Christopher G. Forester, Edwin H. Byrd, III, Stephan Michael Cooper, Thomas Alexander Pressly, IV, Pettiette Armand et al., Shreveport, LA, for Mallory Alexander International Logistics Inc.

MEMORANDUM RULING

JAMES D. CAIN, JR., UNITED STATES DISTRICT JUDGE

Before the Court is a "Motion for Summary Judgment" (Doc. 154) filed by Defendant, Convermat Corporation ("Convermat"), who moves to dismiss all claims asserted by Plaintiffs.

FACTUAL STATEMENT

The lawsuit involves a vehicle accident that occurred on July 16, 2019. Defendant, Justin Chong was operating a Freightline tractor towing a trailer loaded with paper rolls. The tractor experienced a blow-out of the front driver's side tire causing Chong to lose control of the tractor, which crossed the solid yellow line and struck a vehicle driven by Stephen Bertram in the oncoming lane. Mr. Bertram did not survive the accident.

Plaintiffs allege that the unsecured paper rolls shifted during transport and caused or contributed to the tractor-trailer collision.

Plaintiffs have named Convermat as one of several Defendants. Plaintiffs allege that Convermat was negligent in hiring Mallory International, LLC ("Mallory") to provide freight-forwarding services and brokerage services.¹ Plaintiffs have consented to the dismissal of this claim. Plaintiffs allege that Mallory is the agent of Convermat, and thus Convermat is vicariously liable for the actions or inactions of Mallory.² Convermat, contracts with Mallory to warehouse and load its paper rolls for transportation from Mallory's facility. Mallory is a licensed freight-forwarded/broker.³

Defendant, Blue Grace Logistics, LLC (Blue Grace) is a licensed freight broker and Defendant, Empire National, Inc. ("Empire") was at all relevant times a licensed motor carrier.⁴ Justin Chong at all relevant times was a licensed commercial vehicle operator.⁵

Convermat did not receive any instructions regarding cargo securement for the paper rolls from Blue Grace or from any other third-party logistics provider.⁶ The Warehousing Agreement between Convermat (identified therein as "Depositor") and Mallory (identified therein as "Warehouseman") includes the following relevant provision:

It is hereby agreed and understood that WAREHOUSEMAN is entering into this Agreement as an independent contractor and that all of WAREHOUSEMAN'S personnel engaged in work to be done under the terms of this Agreement are to be considered as employees of WAREHOUSEMAN and under no circumstances shall they be construed or considered to be employees of DEPOSITOR. WAREHOUSEMAN shall supervise the performance of its own employees in providing services for DEPOSITOR and shall have control over the manner and means by which its services are performed, subject to the terms of this Agreement as well as any written and mutually agreed upon amendments thereto. Nothing in this Agreement will be interpreted as creating a relationship of principal and agent, partnership or joint venture between the parties. Neither DEPOSITOR nor WAREHOUSEMAN will represent in any manner to any third party that WAREHOUSEMAN is an agent of, or affiliated with, DEPOSITOR in any capacity other than as an independent contractor, and nothing in this Agreement shall be construed to be inconsistent with such status.⁷

Convermat did not train Mallory's employees on how to perform the warehousing operations provided by Mallory pursuant to the Warehousing Agreement.⁸

Convermat retained Blue Grace as a broker to arrange for the transport of paper rolls from Mallory's warehouse in Texas to Convermat's customer in North Carolina.⁹ Blue Grace, as the broker, was responsible for retaining a qualified motor carrier, and it retained Empire to serve as the motor carrier for the transport in question.¹⁰ At the time Convermat entered into the Warehousing Agreement with Mallory, the proposed scope of work estimated that Mallory would handle the loading and unloading of approximately 200 trailers per month on behalf of Convermat.¹¹

SUMMARY JUDGMENT STANDARD

A court should grant a motion for summary judgment when the movant shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56. The party moving for summary judgment is initially responsible for identifying portions of pleadings and discovery that show the lack of a genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny the motion for summary judgment if the movant fails to meet this burden. Id.

If the movant makes this showing, however, the burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quotations omitted). This requires more than mere allegations or denials of the adverse party's pleadings. Instead, the nonmovant must submit "significant probative evidence" in support of his claim. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted).

A court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The court is also required to view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material fact exists if a reasonable trier of fact could render a verdict for the nonmoving party. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

LAW AND ANALYSIS

Plaintiffs allege that Mallory was grossly negligent in breaching its duty to properly secure the load of paper inside the trailer attached to the tractor operated by Chong.¹² The securement of the load was investigated by Louisiana State Police Trooper Timothy Guinn, a Commercial Vehicle Enforcement officer.¹³ Specifically, Trooper Guinn, found that the subject load violated 49 CFR § 393.122(B), the Federal Motor Carrier Safety Regulation specific to the securement of paper rolls transported with eyes vertical in a sided vehicle.¹⁴ Trooper Guinn determined that no securement devices were used on the paper rolls.¹⁵

Plaintiffs assert that Mallory employees were solely responsible for loading the paper rolls at issue into the trailer owned and operated by Defendant Empire.¹⁶ Plaintiffs argue that Mallory was acting on behalf of Convermat as an agent when it loaded the trailer with paper rolls.¹⁷

Plaintiffs maintain that because Mallory was Convermat's agent, Convermat is vicariously liable for the acts of its agent.

Under Louisiana law, the doctrine of vicarious liability, or respondeat superior, is expressed in Louisiana Civil Code art. 2320, which states that "[m]asters and employers are answerable for the damage occasioned by servants and overseers, in the exercise of the functions in which they are employed." Urbeso v. Bryan, 583 So. 2d 114, 116-18 (La. Ct. App. 1991). Under LSA-C.C. art. 2985, a principal may be liable for its agent's actions; however, a principal is not liable for any actions by an independent contractor. Urbeso, 583 So.2d at 116; citing Williams v. Gervais F. Favrot Company, 499 So.2d 623 (La. App. 4th Cir. 1986). In determining whether vicarious liability will attach under Louisiana law, it must be determined whether an agency (i.e. master-servant or employer-employee) relationship or an independent contractor relationship exists. Id.

In general, "[t]he right of control and supervision, selection and engagement, payment of wages, and the power of dismissal determines whether an 'employee' status exists." Id. at 116-17, citing Ermert v. Hartford Insurance Co., 559 So.2d 467 (La. 1990). An employee/agent has a close relationship and is subject to control by the employer or principal. However, agency is never presumed. Instead, "it must be clearly established." Id.

In Louisiana, "an agency relationship is created by either the express appointment of a mandatory under Civil Code Article 2985, or by some implied appointment which traces to apparent authority." Administrators of Tulane Educ. Fund v. Biomeasure, Inc., 687 F. Supp. 2d 620, 629-30 (E.D. La. 2009). "Implied or apparent agency exists if the principal has the right to control the conduct of the agent and the agent has the authority to bind the principal." Urbeso, 583 So.2d at 117. "Apparent agency arises when the principal has acted so as to give an innocent third party a reasonable belief that the agent had the authority to act for the principal . . . and the third party reasonably relies on the manifested authority of the agent." Barrilleaux v. Franklin Found. Hosp., 96-0343 (La. App. 1 Cir. 11/8/96), 683 So. 2d 348, 354. Liability of a principal for the acts of an agent does not exist unless the agent is a servant who "has a close economic relationship and is...