Clem v. Schultz, Civil Action No. 19-cv-03570-REB-KLM

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtKristen L. Mix United States Magistrate Judge
PartiesMATTHEW CLEM, and JASON MOORE, Plaintiffs, v. RAYMOND SCHULTZ, an individual, HINZ TRUCKING, INC., ROGER C. ANDERSON, an individual, and RJA TRUCKING, LLC, Defendants.
Docket NumberC/w Civil Action No. 20-cv-01157-REB-KLM,Civil Action No. 19-cv-03570-REB-KLM
Decision Date02 April 2021

ROGER C. ANDERSON, an individual, and RJA TRUCKING, LLC, Defendants.

Civil Action No. 19-cv-03570-REB-KLM
C/w Civil Action No. 20-cv-01157-REB-KLM


April 2, 2021


This matter is before the Court on a discovery issued raised by the parties in the above case. In accordance with my discovery procedures, Defendant Hinz Trucking, Inc. ("Hinz") orally moved for a Protective Order regarding several topics listed in Plaintiff's Rule 30(b)(6) deposition notice of the Defendant (the "Motion"). The Court heard argument on the Motion on November 9, 2020 and directed the parties to provide further briefing. Courtroom Minutes [#82]1 at 2; see Plaintiff Jason Moore's Memorandum of Law Regarding Notice of 30(b)(6) Deposition of Defendant Hinz Trucking, Inc. ("Plaintiff Moore's Brief") [#83]; Defendant Hinz Trucking, Inc. and Raymond Schultz's Brief Regarding Fed. R. Civ.

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P. 30(b)(6) Discovery Dispute ("Defendant Hinz's Brief") [#84].2 For the reasons stated below, the Motion is GRANTED IN PART AND DENIED IN PART.

I. Background

This case is about a motor vehicle accident in which a tractor-trailer owned by Hinz and driven by Defendant Raymond L. Schultz ("Schultz") rear-ended a pick-up truck in which Plaintiff, Jason Moore, was a passenger. Plaintiff's Brief [#83] at 1. Plaintiff brought claims for negligence and negligence per se against Defendant Schultz, and a claim for respondeat superior against Hinz. Complaint at 8-13. Hinz admits vicarious liability for any negligence of Schultz, "who was acting in the course and scope of his employment at the time of the motor vehicle accident from which Plaintiffs' claims arose." Defendant's Brief [#84] at 1.

Plaintiff Moore sought to take the Rule 30(b)(6) deposition of Hinz, which then objected to deposition topic numbers 1, 4, 5, 6, 9, 11a, 11b, 11c, 11d and 11k on the grounds of relevance. Defendant Hinz contends that the information sought by Plaintiff in those topics has no bearing on the sole disputed claims of negligence and negligence per se against Defendant Schultz. Defendant's Brief [#84] at 1-10. Plaintiff asserts that the information sought in the topics at issue is relevant to "the existence of a duty of care and whether it was breached," as well as "the question of foreseeability" of the accident. Plaintiff also asserts that the information sought may be relevant to whether spoliation of evidence occurred after the crash and "may also be relevant to the question of whether

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Defendant Schultz's conduct was attended by circumstances of fraud, malice, or willful and wanton conduct," so as to entitle Plaintiff to punitive damages. Plaintiff's Brief [#83] at 5-8.

II. Analysis

A. Ferrer v. Okbamicael

Both parties cite the Colorado Supreme Court's decision in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017), to support their arguments regarding relevance of the disputed Rule 30(b)(6) deposition topics. In Ferrer, the Court addressed "whether an employer's admission of vicarious liability for an employee's negligence in response to a plaintiff's complaint forecloses a plaintiff's additional, direct negligence claims against the employer." 390 P.3d at 839 (emphasis added). The Court answered the question in the affirmative, adopting a rule first articulated by the Missouri Supreme Court in McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). According to the Ferrer Court, "where an employer has conceded it is subject to respondeat superior liability for its employee's negligence, direct negligence claims against the employer that are nonetheless still tethered to the employee's negligence become redundant and wasteful." 390 P.3d at 844. "'If it is not disputed that the employee's negligence is to be imputed to the employer, there is no need to prove that the employer is liable. Once the principal has admitted its liability under a respondeat superior theory . . . [a] cause of action for negligent entrustment is duplicative and unnecessary. To allow both causes of action to stand would allow a jury to assess or apportion a principal's liability twice.'" Id. at 845 (citing Gant v. L.U. Transp., Inc., 770 N.E. 2d 1155, 1160 (Ill. 2002)). As a result of this reasoning, the Ferrer Court affirmed the trial court's dismissal of the plaintiff's direct negligence claims against the taxicab company employer, which had admitted that its employee, the taxi driver, was acting in the course

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and scope of his employment at the time when the accident occurred. 390 P.3d at 848.

Notably, the Ferrer majority opinion touches on discovery issues in only a tangential way. First, the Court noted that the trial court, after adopting the McHaffie rule and dismissing the plaintiff's direct negligence claims against the employer, "simultaneously entered a protective order to preclude discovery regarding [the driver's] hiring, supervision, retention and training." 390 P. 3d at 840. The Court further noted that in the trial court, the plaintiff challenged the court's orders only on the basis that "the McHaffie rule is inapplicable in a comparative fault jurisdiction such as Colorado." Id. Importantly, the Supreme Court also explicitly stated that the plaintiff's petition for relief under C.A.R. 21 did not address the protective order; instead, plaintiff challenged the "trial court's orders granting Defendant's motion for partial judgment on the pleadings and dismissing Ferrer's direct negligence claims against Yellow Cab, denying Ferrer's motion for leave to amend the complaint to add exemplary damages claims, and denying reconsideration of these rulings." Id. at 841. If the Ferrer plaintiff challenged the trial court's sua sponte protective order, the Colorado Supreme Court did not say so, nor did it address any such challenge.

As a result, it is not surprising that the Colorado Supreme Court's decision contains no analysis of the propriety of the trial court's entry of the protective order after dismissal of the direct negligence claim against the employer. Instead, the decision focuses on whether to allow "multiple theories for attaching liability to a single party for the negligence of another," and, as mentioned above, concludes that allowing such multiple theories to proceed "'serves no real purpose,' unnecessarily expends the 'energy and time of courts and litigants,' and risks the introduction of potentially inflammatory, irrelevant evidence into the record.'" Id. at 843. The Court's reference to the alleged "inflammatory, irrelevant

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evidence" focuses on "evidence supporting . . . multiple theories [of attaching liability to an employer for the employee's conduct] where such evidence would serve only to establish that which is already undisputed: that the employer is liable for the plaintiff's damages caused by the employee's negligent acts." Id. at 845 (emphasis added). The Court simply did not consider whether evidence which would serve to establish that which is disputed, i.e., whether the employee was negligent, is discoverable. The specific evidence discussed in the opinion includes evidence of the employee's driving record and his prior convictions for traffic offenses, but the Court made no mention of evidence relating to employee training or supervision, for example. Id. Hence, although Ferrer unequivocally adopts the McHaffie rule precluding a direct negligence claim against an employer who admits vicarious liability for its employee's negligence, the decision cannot be read to preclude discovery of evidence relevant to the remaining negligence claim against the employee, which is the question before this court.

Second, in the context of addressing whether there should be an exception to the rule announced in Ferrer for claims for exemplary damages against the employer, the Court held that "such an exception is not logically consistent with the rule. . . . Because any direct negligence claims against the employer are barred, there can be no freestanding claim against the employer on which to base exemplary damages." 390 P.3d at 848. The Court further noted the "case management conundrum" that would be created by such an exception when an employer admits respondeat superior liability in response to the complaint and moves for judgment on the pleadings on the direct negligence claim against the employer before the plaintiff can seek to amend his complaint to add a claim for exemplary damages. "If a trial court grants the employer's motion for judgment on the

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pleadings and dismisses the plaintiff's direct negligence claims [against the employer] under the rule we adopt today, it makes no sense to require a trial court nonetheless to permit discovery on those direct negligence claims because the plaintiff may later seek to assert exemplary damages." Id. (emphasis added). This discussion relates only to allowing discovery when the plaintiff nevertheless tries to assert a punitive damages claim against an employer where his direct negligence claims against the employer have been dismissed. Again, the Court expressed no opinion on the viability of discovery from the employer as it relates to a plaintiff's remaining negligence claims against the employee.

B. The Parties' Arguments Regarding Ferrer

Plaintiff asserts that the Ferrer decision "did not herald a sea-change in the law of discovery. Instead, it represented an admittedly significant course...

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