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

331 F.Supp.3d 956

CERTAIN UNDERWRITERS AT LLOYD'S and Those Companies Severally Subscribing to Boeing Policy Number MARCW150053 and Related Policies Governing the Cargo, Plaintiffs,

v.SOUTHERN PRIDE TRUCKING, INC., et al., Defendants.

8:16-CV-116

United States District Court, D. Nebraska.

Signed June 28, 2018

Dan H. Ketcham, Michael L. Moran, Engles, Ketcham Law Firm, Omaha, NE, David T. Maloof, John E. Olson, Kipp C. Leland, Maloof, Browne Law Firm, Rye, NY, for Plaintiffs.

Jennifer D. Tricker, Baird Holm Law Firm, Omaha, NE, Richard C. Moreno, Steven J. McEvoy, Murchison, Cumming Law Firm, Los Angeles, CA, Darin W. Flagg, Murchison, Cumming Law Firm, Irvine, CA, Beata Shapiro, Wilson, Elser Law Firm, Boston, MA, Collin D. Woodward, John A. Masters, Langhenry, Gillen Law Firm, Chicago, IL, Robert D. Mullin, Jr., McGrath, North Law Firm, Omaha, NE, Troy A. Lundquist, Langhenry, Gillen Law Firm, Joliet, IL, Brian Del Gatto, Wilson, Elser Law Firm, Stamford, CT, for Defendants.

MEMORANDUM AND ORDER

John M. Gerrard, United States District Judge

This 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.

As set 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 judgment.

I. MOTION TO RECONSIDER

Defendants Bauer Built and Road Star move for reconsideration of this Court's Memorandum and Order of January 30, 2018 (filing 217).¹ 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.² And those issues warrant reconsideration.³

All the parties have, at various points in this litigation, made inconsistent arguments. Compare, e.g. , filing 131 at 16, with filing 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.

The 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.⁴ 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 address.⁵

Broadly, 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.

1. EFFECT OF DISMISSING CARMACK AMENDMENT CLAIMS

Certain Underwriters 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?

As a 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. , 260 Neb. 375, 617 N.W.2d 817, 823 (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.

Nebraska's 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 , 273 Neb. 935, 735 N.W.2d 377, 382 (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. , 244 Neb. 822, 509 N.W.2d 603, 612 (1994).

The 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.

Nebraska's 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.

Not 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).

The 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. , 271 Neb. 194, 710 N.W.2d 807, 825 (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.⁶ Id. at 824-32.

But 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...