Biegas v. Quickway Carriers, Inc.

• Citation: 573 F.3d 365
• Decision Date: 24 July 2009
• Docket Number: No. 08-1285.,No. 08-1283.,08-1283.,08-1285.
• Parties: Terri BIEGAS, Personal Representative of the Estate of Richard Biegas, Plaintiff-Appellant/Cross-Appellee, v. QUICKWAY CARRIERS, INC.; Quickway Distribution Services, Inc., Defendants-Appellees/Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

573 F.3d 365

Terri BIEGAS, Personal Representative of the Estate of Richard Biegas, Plaintiff-Appellant/Cross-Appellee, v. QUICKWAY CARRIERS, INC.; Quickway Distribution Services, Inc., Defendants-Appellees/Cross-Appellants.

No. 08-1283.

No. 08-1285.

United States Court of Appeals, Sixth Circuit.

Argued: June 16, 2009.

Decided and Filed: July 24, 2009.

ARGUED: Vernon R. Johnson, Fieger, Fieger, Kenney, Johnson & Giroux, Southfield, Michigan, for Appellant. Michael J. Hutchinson, Hutchinson & Associates, Detroit, Michigan, for Appellees. ON BRIEF: Vernon R. Johnson, Victor S. Valenti, Fieger, Fieger, Kenney, Johnson & Giroux, Southfield, Michigan, for Appellant. Michael J. Hutchinson, Hutchinson & Associates, Detroit, Michigan, Lincoln G. Herweyer, Law Office, New Baltimore, Michigan, for Appellees. Nadia Ragheb, Law Offices of Nadia Ragheb, P.C., Farmington Hills, Michigan, for Amicus Curiae.

Before MOORE, GIBBONS, and FRIEDMAN, Circuit Judges.^*

MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined. FRIEDMAN, J. (pp. 382-83), delivered a separate opinion dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this diversity personal-injury case, Plaintiff-Appellant Terri Biegas ("the Estate"), personal representative of the estate of Richard Biegas ("Biegas"), appeals the district court's grant of partial summary judgment in favor of Defendants-Appellees Quickway Carriers, Inc., and Quickway Distribution Services, Inc. (collectively, "Quickway"), ruling that Biegas was at least fifty-one percent at fault for the accident that caused his death. Following a trial in which the jury was instructed that it must apportion at least fifty-one percent of the fault to Biegas, the jury returned a verdict allocating fifty-three percent of the fault to Biegas and forty-seven percent of the fault to Quickway for the negligence of its employee, truck driver Lonnie Dailey ("Dailey"). Because Michigan law bars non-economic damages in motor-vehicle-injury cases when a plaintiff is more than fifty percent at fault, the Estate was limited to forty-seven percent of economic damages and now seeks a new trial. The Estate also appeals the district court's dismissal of its claim of gross negligence and the district court's admission at trial of certain out-of-court statements by a witness. Quickway cross-appeals the district court's ruling that a written statement given by Dailey to Quickway two days after the accident was not protected by the work-product privilege. For the reasons explained below, we REVERSE the district court's grant of partial summary judgment to Quickway on comparative negligence, AFFIRM the district court's dismissal of the Estate's gross-negligence claim, AFFIRM the district court's various evidentiary rulings, and REMAND for a new trial.

I. BACKGROUND

At around 9:30 p.m. on July 13, 2005, Biegas was struck and killed by a passing tractor-trailer as he stood outside of his dump truck during an emergency stop along eastbound I-96 near Livonia, Michigan. Minutes before the accident, Biegas, who owned a concrete-removal company, was driving home from a job with his employee, Nick Cohen, who rode in the passenger seat. Attached to Biegas's red dump truck was a flatbed trailer which was loaded with a backhoe that Biegas had used earlier that day. When properly secured to the trailer, the height of the backhoe was less than twelve-and-one-half feet. But that evening it somehow struck the overpass at Wayne Road, which has a clearance of fourteen feet. Biegas immediately pulled over and stopped on the shoulder of the highway to the right of the white fog line to check for any damage to his equipment, trailing traffic, or the overpass.

Although Cohen testified at his deposition that there was a distance of approximately two additional feet of paved shoulder between the passenger side of Biegas's dump truck and the start of the grass berm, Biegas stopped his truck very close to the fog line. A Michigan State Police ("MSP") accident reconstructionist, Sergeant Kevin Lucidi ("Lucidi"), measured the accident scene and found that the rear of Biegas's dump truck was five inches from the center of the fog line, an attachment for the backhoe on the trailer was just three-and-one-half inches from the center of the fog line, and the driver's side mirror of Biegas's dump truck actually extended some three-and-one-half inches into the roadway.

Cohen testified at his deposition that he and Biegas stepped out of the truck on their respective sides and walked to the back of the trailer. Cohen estimated that he and Biegas spent around five seconds at the rear of the trailer and found no damage to the backhoe nor any sign that trailing traffic had been hit by debris. Next, Cohen says that he looked back toward the overpass and oncoming traffic and at that moment saw Biegas through his peripheral vision moving either "on top of the trailer [or] or to the side of the trailer." Record on Appeal ("ROA") at 618 (Cohen Dep. Tr. at 56). Cohen then heard an "extremely loud" noise that "sounded like two trains hitting" and he saw, for the first time, the white Quickway tractor-trailer passing alongside Biegas's backhoe trailer. ROA at 619 (Cohen Dep. Tr. at 58). Although he did not see the tractor-trailer strike Biegas, Cohen saw Biegas's torso fall to the ground near the rear of the backhoe trailer. Cohen ran around the side of the backhoe trailer, finding Biegas's dead body near the rear driver's side tire of the backhoe trailer.

Seconds earlier, Dailey was driving the Quickway tractor-trailer around fifty-five to fifty-eight miles per hour in the right lane of eastbound I-96, where the posted speed limit for trucks is fifty-five miles per hour. At his deposition, Dailey testified that he was following another tractor-trailer by around two tractor-trailer lengths, or 150 feet. According to Dailey, it was just turning dark at the time of the accident, but with the overhead lights along the highway "it was lit up fairly well." ROA at 719 (Dailey Dep. Tr. at 55). In a handwritten statement given to MSP troopers some two hours after the accident, Dailey stated that "[a] dump truck and trailer [were] stranded partly in the right lane (which I was in)." ROA at 1019 (MSP Report at 31). Dailey recalled that he did not have "much time to react" and "steered to the left" but "hit something." Id. Dailey further stated that he did not realize that he had hit a person until he pulled over and was informed by a witness. Dailey testified at his deposition that he first saw Biegas's trailer after the preceding tractor-trailer had passed it and that he never saw a person around Biegas's trailer. According to Dailey, he saw part of Biegas's trailer or backhoe extended into the travel lane, so he took his foot off the gas and steered to left, but could get over only around eight inches because there were cars in the lane to his left. Dailey then heard something hit his right side-view mirror, so he pulled his tractor-trailer over onto the right shoulder and walked back to the accident scene.

The only other eyewitness to the accident was Paul Bourlier ("Bourlier"), who was passing Dailey's tractor-trailer in the lane to the left of Dailey at the time of the accident. Bourlier stopped at the scene of the accident, where he was interviewed by Trooper Lisa Lucio and gave a short handwritten statement. He also provided a more detailed typed statement the next day.¹ In his typed statement, Bourlier stated that as Dailey's tractor-trailer began to pass Biegas's stopped vehicle, Bourlier "observed an individual moving at the left rear of that vehicle" and then it appeared that Dailey's tractor-trailer had "hit something." ROA at 1000 (MSP Report at 12). "My immediate thought," stated Bourlier, "was that the semi had hit whomever had been at the rear of the stop[p]ed vehicle." Id.

Based upon his accident-reconstruction analysis, Sergeant Lucidi found that Dailey's tractor-trailer struck Biegas's dump truck and attached trailer at two points. First, the right side-view mirror of Dailey's tractor struck the rear of Biegas's dump truck, leaving scrapes on the driver-side body of Biegas's red dump truck and a red paint transfer on the arm of Dailey's side-view mirror. Second, the side of Dailey's trailer scraped against a backhoe attachment on Biegas's trailer, leaving scrapes on the backhoe attachment and an approximately thirty-foot-long scrape on the side of Dailey's trailer beginning twenty-nine feet from the front bumper of the truck. In addition, Lucidi found blood and biological material on Dailey's tractor-trailer beginning at the second axle of the tractor and extending to the rear of the trailer. Given the contact between Dailey's trailer and the backhoe attachment on Biegas's trailer and the fact that the backhoe attachments were at least three inches to the right of the center of the fog line, Lucidi concluded that Dailey's trailer had crossed over the fog line at the time of the accident.²

Lucidi's investigation also found that Biegas must have been standing at least partially in the right lane of the highway at the time he was struck. Given the small amount of space between Biegas's trailer and the fog line, Lucidi concluded that Biegas would not have been able to remain entirely on the shoulder as he walked alongside his trailer toward the driver-side door of his truck.

On August 22, 2005, the Estate filed a complaint in Michigan state court alleging that Dailey's negligence caused Biegas's death and that Quickway was vicariously liable as the employer. On September 20, 2005, Quickway removed the action to the United States District Court for the Eastern District of Michigan based upon diversity of citizenship.

Following discovery, Quickway filed two motions. As relevant to this appeal, the first motion sought dismissal of the Estate's claim for gross negligence, arguing that Michigan law no longer...