Hutcherson v. Progressive Corp., 91-9157

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation984 F.2d 1152
Docket NumberNo. 91-9157,91-9157
PartiesDeborah HUTCHERSON, As Surviving Spouse of Dennis Hutcherson, Deceased, Deborah Hutcherson, As Administratrix of the Estate of Dennis Hutcherson, Deceased, Deborah Hutcherson, Individually, Plaintiff-Appellant, v. PROGRESSIVE CORPORATION, et al., Defendants-Appellees.
Decision Date03 March 1993

James E. Butler, Jr., C. Frederick Overby, Peter J. Haughtery, Butler, Wooten, Overby & Cheeley, Columbus, GA, Donald A. Weissman, Donald A. Weissman, P.C., Atlanta, GA, for plaintiff-appellant.

Thomas S. Carlock, David D. Cookson, Webb, Carlock, Copeland, Semler & Stair, Robert B. Hocutt, Joleen Marie Casey, Nall, Miller, Owens, Hocutt & Howard, Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, Circuit Judge, MORGAN and JOHNSON, Senior Circuit Judges.

PER CURIAM:

This case arises on appeal following the district court's entry of partial summary judgment in favor of TABS, Inc. ("TABS") and the district court's entry of summary judgment in favor of The Progressive Corporation, National Continental Insurance Company, and Progressive Casualty Insurance Company (collectively, "Progressive"). We affirm in part, reverse in part, and remand.

I. BACKGROUND

On December 29, 1988, TABS' driver Carl E. Hicks was driving a TABS truck south on Interstate Highway 75. Dennis and Deborah Hutcherson were also traveling south on I-75, when Mr. Hutcherson pulled his rig into the emergency lane to check the truck's refrigeration system. Mrs. Hutcherson was asleep in the cab's berth. As Mr. Hutcherson was checking the refrigeration system at the rear of the truck on the driver's side, Hicks swerved out of the right-hand lane, striking and killing Mr. Hutcherson. A police investigation into the accident revealed that Hicks was on amphetamines when the accident occurred.

At the time of the accident, Progressive was providing TABS with commercial fleet insurance that included a number of safety services, including periodic independent reviews of TABS' drivers, intended to supplement TABS' internal safety program. As part of its own safety program, TABS required that all new drivers meet certain minimum qualifications, including that each driver be at least twenty-five years of age and have a minimum of two years verifiable over the road tractor-trailer experience. In addition, TABS' hiring procedures required that each applicant submit a three year motor vehicle record ("MVR").

When TABS hired Hicks in February 1988, Hicks did not meet TABS' experience requirement. In addition, Hicks' three year MVR revealed that over the last three years Hicks had received four speeding tickets, a citation for operating his truck without proper brake lights, a license suspension for refusing to take an alcohol test and an improper backing citation related to the refusal to submit to an alcohol test, and that Hicks had been involved in a wreck. During the hiring interview, Hicks explained the incident involving his refusal to take the alcohol test. He explained that he had backed into someone resulting in a minor accident, that the police had come to his home later after he had been drinking beer at home, and that this was the reason he refused the test. Unfortunately, the three year MVR only told part of the story. Prior to 1985, Hicks had been arrested and convicted of multiple felonies, including convictions for driving under the influence ("DUI") and assault.

In the summer of 1988 Progressive obtained MVRs on Hicks that reflected a more complete picture--including in particular a 1983 DUI conviction. Based on this, Progressive requested that TABS place Hicks on "watch status" for six months. At that time Progressive would order a new MVR and if additional violations were found, Progressive would ask TABS to place Hicks in a non-driving capacity. The accident giving rise to the instant proceeding occurred before the expiration of the six months.

On May 21, 1989, Hutcherson's widow filed suit against Hicks, TABS, and Progressive in Georgia state court claiming negligence, wrongful death, pain and suffering, and personal injury. On June 15, 1989, the defendants successfully removed the case to federal district court based on diversity of citizenship. On August 7, 1991, the district court entered partial summary judgment in favor of TABS on the issue of punitive damages on Hutcherson's claim for negligent hiring and retention, and on the claim for negligent entrustment. The court also entered summary judgment in favor of Progressive on Hutcherson's claims under section 324A(b) and (c) of the Restatement (Second) of Torts. On December 2, 1991, the district court entered final judgment on the foregoing claims pursuant to Fed.R.Civ.P. 54(b).

II. DISCUSSION

This court reviews a grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-movant. The court may not weigh evidence to resolve factual disputes--if a genuine issue of material fact is found, summary judgment must be denied. Ryder Int'l Corp. v. First American Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir.1991). Although this is a diversity action and Georgia state law therefore provides the controlling substantive law, federal law governs the sufficiency of the evidence necessary to preclude a grant of summary judgment. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738 (5th Cir.1980).

A. Punitive Damages

Hutcherson appeals the district court's order granting partial summary judgment to TABS on the issue of an award of punitive damages for either her negligent entrustment claim or her negligent hiring claim. The district court found that although sufficient evidence existed to allow the negligence claims themselves to proceed to trial, no evidence existed to support a finding that TABS had been consciously indifferent.

Under Georgia law, "punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences." O.C.G.A. § 51-12-5.1 (1992). Georgia defines "conscious indifference" as "an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights." Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447, 450 (1975). Negligence alone, even gross negligence, will not support an award of punitive damages. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827, 830, appeal dismissed, 488 U.S. 805, 109 S.Ct. 36, 102 L.Ed.2d 15 (1988).

1. Negligent hiring and retention

To prove negligent hiring, Georgia law requires a plaintiff to show that the employer knew, or in the exercise of ordinary care should have known, that its employee was incompetent. Sparlin Chiropractic Clinic, P.C. v. Tops Personnel Services, Inc., 193 Ga.App. 181, 387 S.E.2d 411, 412 (1989); Harvey Freeman & Sons, Inc. v. Stanley, 189 Ga.App. 256, 375 S.E.2d 261, 264, aff'd in part, rev'd in part, 259 Ga. 233, 378 S.E.2d 857 (1988). Although custom may be some evidence of ordinary care, "in the last analysis, what ought to be done is fixed according to the standard of the ordinarily prudent man, whether or not it is custom to comply with that standard." Moody v. Southland Investment Corp., 126 Ga.App. 225, 190 S.E.2d 578, 583 (1972).

The district court held that Hutcherson failed to demonstrate actions on the part of TABS that rose to the level of conscious indifference, finding that TABS complied with the industry custom when it checked Hicks' driving record for the previous three years, and this compliance, together with TABS' hiring practices, were sufficiently careful to preclude a jury from finding that TABS either wilfully or with conscious indifference hired an incompetent truck driver.

As evidence of TABS' conscious indifference, Hutcherson points to TABS' knowledge of the three year MVR and Hicks' failure to meet TABS' two year experience requirement. Hutcherson points out that the three year MVR indicated a poor driving record, and points in particular to the 1987 incident involving an improper backing citation, a refusal to take an alcohol test, and a resulting license suspension. However, it is undisputed that Hicks explained this 1987 incident during the hiring interview in a manner that lulled TABS into discounting the failure to take an alcohol test. We agree with the district court that there is insufficient evidence for a reasonable juror to conclude that TABS' knowledge at the time of hiring constitutes conscious indifference.

Hutcherson also claims that TABS was consciously indifferent in retaining Hicks or failing to take him off the road in the summer of 1988, after TABS learned of the 1983 DUI conviction. TABS first learned of the 1983 DUI conviction in the summer of 1988 when Progressive wrote to TABS expressing concern about Hicks, but also noting that the DUI conviction was five years ago and therefore could probably be overlooked. The concern expressed in the letter seemed to focus on the 1987 refusal to take an alcohol test; however, as noted above, that incident had been explained to TABS in the hiring interview. Under these circumstances, we agree with the district court that the evidence is insufficient for a reasonable juror to conclude that TABS was consciously indifferent in retaining Hicks.

2. Negligent Entrustment Claim

With respect to Hutcherson's claim that TABS was consciously indifferent in entrusting the vehicle to Hicks, the evidence is the same as the evidence to support the negligent retention claim discussed above. For the same reasons, we agree with the district court that the evidence is...

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