Herrera v. W. Express Inc.

• Decision Date: 24 May 2021
• Docket Number: No. CV-19-00803-PHX-JJT,CV-19-00803-PHX-JJT
• Citation: Herrera v. W. Express Inc., No. CV-19-00803-PHX-JJT (D. Ariz. May 24, 2021)
• Parties: Ida Herrera, Plaintiff, v. Western Express Incorporated, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Ida Herrera, Plaintiff, v. Western Express Incorporated, et al., Defendants.

No. CV-19-00803-PHX-JJT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 24, 2021

ORDER

At issue is Defendant Hydro Extrusion North America's Motion for Summary Judgment (Doc. 121, Hydro MSJ), to which Plaintiff Ida Herrera filed a Response (Doc. 134, Pl.'s Resp. Hydro MSJ), and Hydro filed a Reply (Doc. 141, Hydro Reply). Also at issue is Defendants Western Express, Inc. and Dustin Figueroa's Motion for Summary Judgment (Doc. 128, Western MSJ). Plaintiff filed a Response (Doc. 138, Pl.'s Resp. Western MSJ), and Western filed a Reply (Doc. 142, Western Reply). Lastly, Hydro's Motion to File A Second Summary Judgment Motion on Plaintiff's Punitive Damages Claim (Doc. 124) is at issue. The Court finds these matters appropriate for decision without oral argument. See LRCiv 7.2(f). For the reasons that follow, the Court will grant in part and deny in part Western's Motion and deny Hydro's Motion in its entirety.

I. BACKGROUND

This case involves a fatal traffic accident where Gilberto Herrera ("Decedent") crashed into a trailer parked in the eastbound lane of West Jefferson street. The parties dispute key facts, including multiple important factual disputes between co-defendants.

Hydro Extrusion North America ("Hydro") produces aluminum extrusions. Western Express, Inc. ("Western") is a shipping company that transports Hydro's products. (Plaintiff's Separate Statement of Facts Western MSJ ("PSSOF Western MSJ") ¶ 9, Ex. 3 at 1.) Hydro has two shipping facilities in Tiger Industrial Park. West Jefferson Street is a private access street to Tiger Industrial Park. The street runs East/West and does not extend beyond 51st Avenue to the West or beyond 49th Avenue to the East. While it does not have demarcated lanes, it is utilized as a two-lane road with one lane running in each direction. There are multiple businesses located directly North/South off of West Jefferson Street. Hydro Shipping 1 is located on the South side of West Jefferson closest to 51st Avenue. On February 14, 2017, Dustin Figueroa, a Western Employee, transported an empty flat-bed Western trailer to Hydro Shipping 1 at Hydro's request. (Hydro Statement of Facts ("HSOF") ¶¶ 1-6; Plaintiff's Separate Statement of Facts Hydro MSJ ("PSSOF Hydro MSJ") ¶ 15, Ex. 18.)

When Mr. Figueroa arrived at the Hydro facility, Hydro employee Maria Meade instructed him to drop the flat-bed trailer off in the dirt parking area located off of West Jefferson Street. (HSOF ¶¶ 14, 19; Western Statement of Facts ("WSOF") ¶ 9.) This was standard practice for the Hydro shipping department. (HSOF ¶ 17.) Mr. Figueroa testified that there was already a trailer located in the spot where Ms. Meade instructed him to park, so he kept driving eastbound along West Jefferson Street. (WSOF ¶ 11.) While he was stopped on West Jefferson Street, an unidentified Hydro employee told him that it was okay to leave the trailer where it was, and that Hydro would move it later that day. (WSOF ¶ 12; PSSOF Hydro MSJ ¶ 30.) Mr. Figueroa left the trailer and returned to the Hydro facility to wait to pick up a loaded trailer. (WSOF ¶ 14.) Hydro contends that it is unaware of any employee who would have instructed Mr. Figueroa to park in that location. (HSOF ¶ 32.) Mr. Figueroa did not inform the Hydro shipping department that he had parked the trailer on West Jefferson Street but Hydro's commercial vehicle driver, Joel Gomez, knew the trailer's location. (HSOF ¶ 32; PSSOF Hydro MSJ ¶ 35.) After remaining at the shipping department for approximately 3 hours, Mr. Figueroa departed around 5:00pm thatday with a different loaded trailer. (WSOF ¶ 14.) The trailer remained parked on West Jefferson Street overnight.

Decedent worked at Hydro Shipping 1. At approximately 5:40am the following day, February 15, 2017, Decedent was commuting to work, traveling westbound on West Jefferson Street between 50th and 51st Avenue. He switched into the eastbound lane in an attempt to pass a vehicle in front of him driven by Juan Bautista and crashed into the parked trailer. Mr. Herrera suffered fatal injuries. (HSOF ¶¶ 38-41, 45.)

Hydro and Western dispute who had control over the trailer at the time of the accident. Western contends that Hydro had control because the trailer was parked at their facility and Hydro had logged it into its system. (WSOF ¶¶ 22-23.) Hydro maintains that protocol states that it does not have legal control until it unhooks the trailer, which it did not do prior to the accident. (HSOF ¶ 46.)

Ida Herrera ("Plaintiff"), the Decedent's wife, arrived at the scene of the accident at approximately 8:05am. She also worked for Hydro at the time of the accident. Plaintiff noticed that the trailer was not in a typical parking area but contends she was unaware of Hydro's involvement. (HSOF ¶ 50; Plaintiff's Controverting Statement of Facts Hydro MSJ ("PCSOF Hydro MSJ") ¶ 50.) She subsequently hired an accident reconstructionist as well as an attorney who corresponded with Hydro and Western via email and telephone. (HSOF ¶¶ 51-52.) Plaintiff filed a lawsuit as personal representative of Gilberto Herrera's estate, and "for herself and on behalf of all statutory beneficiaries" against Mr. Figueroa, Western, and unidentified "Defendants ABC Limited Liability Corporations I-X" on February 7, 2019. (Doc. 1, Complaint.) On April 15, 2019, Western provided Plaintiff with its Statement of the Case that listed Hydro as an unnamed potentially liable third party. (PCSOF Hydro MSJ ¶ 50; Doc, 17, Joint Case Management Plan at 9.) Plaintiff subsequently filed a Stipulated Motion to Substitute Hydro in place of the "ABC Limited Liability Corporations" on May 17, 2019 (Doc. 22.) and filed her Second Amended Complaint on May 30, 2019. (Doc. 26.)

II. LEGAL STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when: (1) the movant shows that there is no genuine dispute as to any material fact; and (2) after viewing the evidence most favorably to the non-moving party, the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" of material fact arises only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In considering a motion for summary judgment, the court must regard as true the non-moving party's evidence, if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party may not merely rest on its pleadings; it must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).

"A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "Summary judgment must be entered '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.'" United States v. Carter, 906 F.2d 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322).

III. ANALYSIS

A. DUTY

1. Duty Under A.R.S. § 13-2906 and Phoenix City Code §§ 23-9 & 11

Among the elements required to establish a claim for negligence under Arizona law is a duty requiring the defendant to conform to a certain standard of care. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). "[W]hether a duty exists is a matter of law for the court to decide." Id. "The existence of a statute criminalizing conduct is one aspect of Arizona law supporting the recognition of [a] duty." Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 253, 866 P.2d 1330, 1339 (1994). Plaintiff contends that Western and Hydro owed Mr. Herrera a duty under A.R.S. § 13-2906, which criminalizes the obstruction of a highway or public thoroughfare. Section 13-2906 provides in relevant part:

A. A person commits obstructing a highway or other public thoroughfare if the person, alone or with other persons, does any of the following:

1. Having no legal privilege to do so, recklessly interferes with the passage of any highway or public thoroughfare by creating an unreasonable inconvenience or hazard.

2. Intentionally activates a pedestrian signal on a highway or public thoroughfare if the person's reason for activating the signal is not to cross the highway or public thoroughfare but to do both of the following:

(a) Stop the passage of traffic on the highway or public thoroughfare.

(b) Solicit a driver for a donation or business.

3. After receiving a verbal warning to desist, intentionally interferes with passage on a highway or other public thoroughfare or entrance into a public forum that results in preventing other persons from gaining access to a governmental meeting, a governmental hearing or a political campaign event.

A.R.S. § 13-2906.

Both Defendants moved for summary judgment, arguing that Section 13-2906 is inapplicable because "in Arizona 'public highways' are limited to those established in themanner provided by law and to no others." State ex rel. Herman v. Cardon, 544 P.2d 657, 659 (1976).¹ Defendants correctly assert that West Jefferson Street was not established as a public highway in a manner provided by...