Cameron ex rel. All Other Parties Entitled to Recover for the Wrongful Death Cameron v. Werner Enters., Inc.

ANGELA CAMERON, AS THE ADMINISTRATRIX OF THE ESTATE OFANTHONY CAMERON, DECEASED, FOR AND ON BEHALF OF HERSELF, AND ONBEHALF OF ALL OTHER PARTIES ENTITLED TO RECOVER FOR THEWRONGFUL DEATH OF ANTHONY CAMERON PLAINTIFFS v. WERNER ENTERPRISES, INC., A FOREIGN CORPORATION,AND TERRY J. GUILLORY, AN INDIVIDUAL DEFENDANTS

CIVIL ACTION NO. 2:13cv243-KS-JCG

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION

July 15, 2015

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Motion for Partial Summary Judgment [116] of the Defendants Werner Enterprises, Inc. ("Werner") and Terry J. Guillory ("Guillory"). Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the motion should be granted.

I. BACKGROUND

This wrongful death action arises out of a commercial vehicle accident that occurred on December 3, 2012, in Perry County, Mississippi. The Uniform Crash Report [116-1] indicates that the accident occurred at approximately 4:00 a.m. in heavy fog. The decedent, Anthony Cameron ("Cameron"), was the driver of one of the vehicles involved in the accident. Guillory was the driver of the other vehicle. Cameron was driving his tractor-trailer east on U.S. Highway 98, when it collided with Guillory's tractor-trailer. Guillory was attempting to cross the eastbound lanes of the highway in order to turn left onto the westbound lanes at the time of the collision. Cameron waskilled in the accident. Guillory was acting within the course and scope of his employment with Werner at the time of the incident.

On November 1, 2013, Angela Cameron (as the Administratrix of the Estate of Anthony Cameron, on behalf of herself, and on behalf of all other parties entitled to recover for the wrongful death of Anthony Cameron) filed suit against Werner and Guillory in this Court. (See Compl. [1].) Angela Cameron was Anthony Cameron's wife at the time of his death. The Complaint asserts allegations of negligence and gross negligence, and requests compensatory damages, punitive damages, interest, attorney's fees, and costs. Subject matter jurisdiction is asserted on the basis of diversity of citizenship pursuant to Title 28 U.S.C. § 1332.

By way of the subject motion, Defendants seek summary judgment on the Plaintiff's direct negligence claims against Werner and the Plaintiff's demand for punitive damages as to both Defendants. The motion has been fully briefed and the Court is ready to rule.

II. DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if 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(a). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant must then "comeforward with specific facts showing that there is a genuine issue for trial." Id. "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is 'genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812 (citation omitted).

The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is mandatory "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

B. Analysis

1. Direct Negligence Claims Against Werner

The Complaint [1] charges Werner with negligent entrustment, hiring, training,supervision, and retention. Plaintiff's opposition to summary judgment describes three bases for her allegations of direct negligence against Werner: (i) Werner negligently and/or recklessly failed to properly train Guillory; (ii) Werner was negligent and/or reckless in allowing its drivers to decide whether to drive under certain weather conditions and in not utilizing a Qualcomm message system to alert its drivers of weather problems; and (iii) Werner was negligent or reckless in utilizing a pay structure that incentives the accumulation of mileage. The Court finds that Werner is entitled to summary judgment on each of these allegations.

First, district courts for both the Northern and Southern Districts of Mississippi regularly dismiss direct negligence claims when an employer admits vicariously liability.¹ Both Werner and Guillory have admitted that "Guillory was acting in the line and scopeof his employment . . . with Werner" at the time of the accident. (Compare Compl. [1] at ¶ 12, with Answer [6] at ¶ 12, and Answer [16] at ¶ 12.) Further, "Werner has admitted it would be vicariously liable for the negligence, if any, of its employee . . . ." (Defs.' Reply to Resp. to Mot. for Part. SJ [128] at p. 4.) Therefore, all of the Plaintiff's negligence allegations directly asserted against Werner are "redundant and due to be dismissed." Littlejohn, 2015 WL 3868092, at *2 (citations omitted).

Second, Plaintiff's allegation that Werner failed to properly train Guillory suffers from an absence of proof. A claim of negligent training or supervision is simply a negligence claim, requiring a showing of duty, breach, causation, and damages. See, e.g., Cuevas v. T & J's Last Minute Seafood Express, 1:10cv104, 2011 WL 1898919, at *3 (S.D. Miss. May 13, 2011); Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1229 (¶ 45) (Miss. 2005). Werner's Rule 30(b)(6) representative testified at deposition that Werner's drivers receive training regarding various safety topics, including speed and space management, hazard awareness, fatigue management, hours of service, pre-trip inspection, and drugs and alcohol. (See Werner 30(b)(6) Dep. [127-2] 28:1-25.) Plaintiff fails to evidence the inadequacy of this training or otherwise show how Werner's training could be considered a breach of any duty. Instead, Plaintiff argues a jury issue exists because Werner's Rule 30(b)(6) representative also testified that drivers are allowed to use their judgment on whether to drive in foggy conditions, and stated as follows regarding the meaning of "reckless": "Just that the driver didn't take all necessary steps to drive in a safe manner." (Werner 30(b)(6) Dep. [127-2] 44:13-17, 47:2-23.) It is not evident to the Court how these facts give rise to any genuine issue precluding a grant of summary judgment on Plaintiff's negligent trainingallegation. Thus, Plaintiff has merely offered "improbable inferences" and "legalistic argumentation," which are insufficient to avoid summary judgment. Oliver, 276 F.3d at 744.

Third, Plaintiff has failed to cite any legal authority supporting her contention that Werner had a duty to send its drivers Qualcomm messages regarding weather conditions,² or that Werner could be considered negligent for using a payment system based on the accumulation of mileage. In a diversity action, this Court's task is to apply Mississippi law and not to create or adopt innovate theories of recovery. See Allstate Ins. Co. v. Receivable Fin. Co., 501 F.3d 398, 411 (5th Cir. 2007) ("We have long followed the principle that we will not create innovative theories of recovery or defense under local law, but will rather merely apply it as it currently stands.") (citation omitted); Janus v. BellSouth Telecomms., Inc., 48 F.3d 532, 1995 WL 84545, at *2 (5th Cir. 1995) (rejecting the plaintiffs' negligence claim that depended upon a legal duty not yet recognized by Mississippi's highest court). The Court declines to contravene this well established principle and deny summary judgment based on Plaintiff's novel, unsupported arguments. All of the Plaintiff's allegations of direct negligence against Werner will be dismissed for the above-stated reasons.

2. Punitive Damages As to Werner

By statute, punitive damages are unavailable "if the claimant does not prove byclear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud." Miss. Code Ann. § 11-1-65(1)(a). The trial judge is to consider "the totality of the circumstances . . . in light of defendant's aggregate conduct" in deciding whether to submit the issue of punitive damages to the jury. Causey v. Sanders, 998 So. 2d 393, 408 (¶ 48) (Miss 2008) (citation omitted). Punitive damages are disfavored, considered an extraordinary remedy, and allowed only "with caution and within narrow limits" under Mississippi law. Ill. Cent. R.R. Co. v. Young, 120 So. 3d 992, 1013-14 (¶ 62) (Miss. Ct. App. 2012) (quoting Waren v....