Clark v. Associates Commercial Corp.

• Decision Date: 27 May 1994
• Docket Number: Civ. A. No. 92-1325-MLB.
• Citation: 877 F. Supp. 1439
• Parties: Arnold R. CLARK, Plaintiff, v. ASSOCIATES COMMERCIAL CORP., A Delaware Corporation, Defendant and Third-Party Plaintiff, v. Bob HOWARD d/b/a H & J Rec Auto, Inc.; Clark Investigation & Recovery, Inc.; Randall Wayne Lett; and such other unknown third parties as were liable for any occurrence in Knoxville, Tennessee, Third-Party Defendants.
• Court: U.S. District Court — District of Kansas

877 F. Supp. 1439

Arnold R. CLARK, Plaintiff, v. ASSOCIATES COMMERCIAL CORP., A Delaware Corporation, Defendant and Third-Party Plaintiff, v. Bob HOWARD d/b/a H & J Rec Auto, Inc.; Clark Investigation & Recovery, Inc.; Randall Wayne Lett; and such other unknown third parties as were liable for any occurrence in Knoxville, Tennessee, Third-Party Defendants.

Civ. A. No. 92-1325-MLB.

United States District Court, D. Kansas.

May 27, 1994.

W. Thomas Gilman, Martin R. Ufford, Redmond, Redmond & Nazar, Wichita, KS, for Arnold R. Clark.

Eric D. Bruce, Kenneth H. Jack, Bruce & Davis, Wichita, KS, for Associates Commercial Corp.

William R. Sampson, Paul W. Rebein, Shook, Hardy & Bacon, Overland Park, KS, for Shook, Hardy & Bacon.

Bryce A. Abbott, Natalie G. Haag, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Wichita, KS, for Clark Investigation & Recovery, Inc., Randall Wayne Lett.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter is before the court on plaintiff's motion for partial summary judgment (Doc. 126) and defendant's motion for complete or, in the alternative, partial summary judgment (Doc. 146). The case involves the allegedly wrongful repossession of plaintiff's tractor-trailer rig by defendant Associates Commercial Corp. ("Associates") and the third-party defendants. Plaintiff claims that, during the course of the repossession, Associates violated its statutory duty under Tenn. Code Ann. § 47-9-503 not to breach the peace. Plaintiff seeks damages for intentional or reckless violation of that statutory duty as well as conversion, battery, breach of contract, outrage, and invasion of privacy.

SUMMARY JUDGMENT STANDARDS

Under Federal Rule of Civil Procedure 56(a) and (b), a claimant or defending party may move for "a summary judgment in the party's favor upon all or any part thereof." Summary judgment is appropriate if no genuine issue of material fact exists with respect to the particular claims or issues upon which summary judgment is sought. Fed.R.Civ.P. 56(c). Summary judgment is inappropriate if there is sufficient evidence on which a trier of fact could reasonably find for the nonmoving party. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 684 (10th Cir. 1991).

The standard for cross-motions is the same as for individual motions for summary judgment. Arnold Pontiac-GMC, Inc. v. General Motors Corp., 700 F.Supp. 838, 840 (W.D.Pa.1988). The moving party bears the initial burden of demonstrating the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The nonmoving party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Shapolia v. Los Alamos Nat'l Laboratory, 992 F.2d 1033, 1036 (10th Cir.1993). The court reviews the evidence in a light most favorable to the nonmoving party, e.g., Washington v. Board of Public Utilities, 939 F.2d 901, 903 (10th Cir.1991), under the substantive law and the evidentiary burden applicable to the particular claim. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14.

FACTUAL BACKGROUND

The court makes the following findings of fact pursuant to the parties' motions and the pretrial order:

On or about March 31, 1989, plaintiff entered into a "Security Agreement (Conditional Sale Contract)" with Doonan Truck & Equipment, Inc. ("Doonan") for the purchase of a 1989 Peterbilt tractor/truck. Plaintiff agreed to pay Doonan monthly installments of $1,485.22 beginning May 15, 1989 and granted Doonan a security interest in the truck. The parties agreed that upon default, Doonan or its assigns could proceed with all rights and remedies of a secured party under the Uniform Commercial Code. Sometime subsequent to the execution of the agreement, Doonan assigned its interest in the agreement to Associates.

On or about May 24, 1990, plaintiff entered into a "Security Agreement (Conditional Sale Contract)" with Utility Midwest Trailer Sales, Inc. ("Utility") for the purchase of a 1990 Utility Trailer. Plaintiff agreed to pay monthly installments of $626.00 and granted Utility a security interest in the trailer. The parties agreed that upon default, Utility or its assigns could proceed with all rights and remedies of a secured party under the Uniform Commercial Code. Sometime subsequent to the execution of this agreement, Utility assigned its interest in the agreement to Associates.

Plaintiff began to be delinquent in his payments to Associates under the terms of the aforesaid agreements as well as other financing arrangements with Associates for other tractor-trailers. Beginning in approximately mid-December 1991, Associates began repossessing and selling plaintiff's tractors and trailers.

On May 8, 1992, Associates entered into a "Repossession Agreement" with third-party defendant Bob Howard ("Howard") as an independent contractor to repossess the tractor-trailer at issue in this case. The Repossession Agreement identified Bob Howard and no other person as the repossessor. On May 14, Howard retained Clark Recovery, Inc. ("Clark Recovery"), of Knoxville, Tennessee as an independent contractor to repossess the tractor-trailer. Associates was not aware that Howard had subcontracted with Clark Recovery for the repossession.¹ Clark Recovery arranged for one of its employees, Randall Wayne Lett, to repossess the plaintiff's tractor-trailer, and hired an independent contractor, William Roberts, to drive the tractor-trailer back if the repossession was successful. Lett and Roberts repossessed plaintiff's tractor-trailer during the evening of May 14 at a truck stop near Knoxville, Tennessee.²

The chief dispute in this case concerns a confrontation between plaintiff and Lett that occurred during the course of the repossession. According to plaintiff's deposition (Doc. 127, Ex. 23), after plaintiff arrived at the truck stop, Lett climbed into the cab of the tractor-trailer, while plaintiff was resting in the sleeper compartment, informed plaintiff of the repossession, showed plaintiff a file regarding the repossession, and told plaintiff that "he was going to have to get out" of the truck. Id. at 14. Plaintiff questioned Lett and "asked him to get out," but Lett refused. Id. According to plaintiff, Lett then told plaintiff that "he didn't think plaintiff could get him out" and threatened to have plaintiff arrested. Id. at 30, 224. The following altercation then allegedly took place:

"I grabbed Lett by the shoulder and — and the neck, I suppose, I grabbed him and forcibly pushed him out. And he's trying to maintain a grip on me, hanging on, and gets hold of my leg, behind my left leg, and pulls it over the seat, starts pulling me out.

I hang onto the steering wheel and the back of the seat and he's still got my leg. And about that time he — I feel the pain, I feel my leg is broken, it starts hurting real bad. And I'm trying to tell him that he's broken my leg and he won't let go. He just keeps pulling, keeps twisting, keeps jerking, and about that time I'm hurting, I'm screaming.

And he pulls me off the seat and then down on the step and he goes ahead and jerks me off to the ground and drags me away from the truck and then steps over me and climbs in the truck...."

Id. at 15-16.

Not surprisingly, Lett's deposition tells a much different story. According to Lett, after he had climbed into the truck and told plaintiff about the repossession, "plaintiff said, `I don't think you're as big as you think you are, and I'm going to whip your ass'" and a "split second" later took a swing at Lett with his right hand, striking Lett in "the wrist area and the side of the head." (Lett's Depo., pp. 50-52, 55). Lett testified that plaintiff kept coming at him and he "thought plaintiff was trying to push him out of the truck on his head." Id. at 56-59. Plaintiff allegedly started kicking Lett in the side of the head and the rib area. Id. at 61. Lett then grabbed plaintiff's left foot and both Lett and plaintiff fell out of the truck. Id. at 62. Plaintiff grabbed onto the truck's door as he fell, but Lett "helped plaintiff come onto the ground." Id. at 63-64. When plaintiff hit the ground, his left foot was hooked beneath Lett's arm. Id. at 65. Plaintiff could not get up and told Lett, "You broke my leg.'" Id. at 68.

DISCUSSION

I. Plaintiff's Motion for Summary Judgment

On May 24, 1993, plaintiff moved for summary judgment on two issues: (1) that, under both Tennessee and Kansas law, a secured creditor's duty to repossess without breaching the peace pursuant to § 9-503 of the Uniform Commercial Code is a nondelegable duty; and (2) that, under Kansas law, Associates ratified the acts of its repossession agents. (Doc. 127, pp. 7-18).

On June 7, 1993, this court issued a Memorandum and Order, reported in 149 F.R.D. 629 (D.Kan.1993), concerning, inter alia, an earlier motion by plaintiff for a determination of applicable substantive law. The court held that because plaintiffs causes of action against Associates sounded in tort and because, under Kansas choice of law principles, tort cases are governed by the substantive law of the state where the tort occurred, Tennessee law controls plaintiff's claims against Associates. 149 F.R.D. at 636-37. The court found that, according to Tennessee case law, "the duty to repossess peaceably under § 9-503 is non-delegable, and thus, `a secured party is vicariously liable for wrongful acts of the repossessor even if the repossessor is an independent contractor.'" Id. at 637 (quoting McCall v. Owens, 820 S.W.2d 748, 751-52 (Tenn.Ct.App.1991)).

Obviously, the court's June 7 Memorandum and Order had a substantial impact on the two issues raised in plaintiff's May 24 motion for summary judgment. The first issue — whether the duty to peaceably repossess is nondelegable — was answered by the...