Individually v. D. Hays Trucking Inc

• Decision Date: 22 March 2010
• Docket Number: Civil Action No. 1:08-cv-01904-JOF.
• Citation: 701 F.Supp.2d 1300
• Parties: Preston LEWIS individually and as Executor of the Estate of Phyllis Lewis, deceased, Plaintiff,v.D. HAYS TRUCKING, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

701 F.Supp.2d 1300

Preston LEWIS individually and as Executor of the Estate of Phyllis Lewis, deceased, Plaintiff,
v.
D. HAYS TRUCKING, INC., et al., Defendants.

Civil Action No. 1:08-cv-01904-JOF.

United States District Court,
N.D. Georgia,
Atlanta Division.

March 22, 2010.

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COPYRIGHT MATERIAL OMITTED

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Lloyd N. Bell, Bell & Mullholland, L.L.C., Robert Edward Mulholland, Malone Law Office, Atlanta, GA, for Plaintiff.

Amanda Lowery Matthews, Nall & Miller, Atlanta, GA, for Defendants. OPINION & ORDERJ. OWEN FORRESTER, Senior District Judge.

This matter is before the court on Hercules Incorporated's motion for summary judgment [124]; Floyd Dexter Hays and Dexter Hays Forest Products' motion for summary judgment [125]; and Brookwood Insurance Company's motion for summary judgment [126].

I. BackgroundA. Procedural History and Facts

Plaintiff, Preston Lewis, individually and as executor of the estate of Phyllis Lewis, filed suit against D. Hays Trucking, Inc.; Floyd Dexter Hays; Hercules, Inc.; and Brookwood Insurance Co. in the State Court of Cobb County on April 29, 2008, alleging causes of action of negligence per se, negligence, respondeat superior, and punitive damages. Defendants removed the suit to this court on May 30, 2008. The suit arises out of an accident that occurred on November 11, 2007 when a tractor trailer driven by Floyd Dexter Hays crashed into the car of Phyllis Lewis killing her. The parties engaged in extensive discovery and the matter is now before the court on motions for summary judgment by (1) D. Hays Trucking, Inc.

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and Floyd Dexter Hays; (2) Hercules, Inc.; and (3) Brookwood Insurance Co.
Accident

On November 11, 2007 at 2:30 p.m., Floyd Dexter Hays left Raven, Alabama, driving a tractor trailer loaded with pine stumps. His destination was the Hercules plant in Brunswick, Georgia. At 6:00 p.m., Hays stopped at a truck stop in Bainbridge, Georgia. There, he drank a cup of coffee and an “energy” drink. He also took Glucovance, his diabetes medication. Hays testified that he could not remember whether he ate anything at the time he took the medication, but he did also state that he generally does not eat when he is on the road.

At 11:45 p.m. that night, Hays was driving east on Georgia route 520, 10 miles west of Brunswick. According to Defendants' accident reconstruction specialist, at the time of the accident, Hays was driving between 74 and 77 m.p.h. in a 65 m.p.h. zone. (Plaintiff's reconstruction specialist opines that Hays' speed was between 81 and 89 m.p.h.). Hays had his low beams on at the time of the accident.

There were no skid marks prior to the impact of the tractor trailer with the car owned by Phyllis Lewis. After impact, there are 485 feet of skid marks before the tractor trailer comes to a rest. Hays testified that he did not know what he had struck and did not realize it was another vehicle.

When the tractor trailer loaded with stumps was eventually brought to the Hercules plant, it weighed in at 82,520 pounds. See Grozier Depo., at 59.

Hays' Work with Hercules

Hercules is a large chemical corporation. Its operation in Brunswick, Georgia extracts resins from tree stumps and processes the resin into chemical compounds. Hercules then sells these compounds to other manufacturers. In 1999, Hays was recruited by Ray Bryant, a former forester for Hercules, to harvest pine stumps and haul them to the Hercules plant in Brunswick. From 1999 to the present, Hays has delivered harvested stumps only to Hercules. In the aftermath of Hurricane Ivan, Hays did work for one month clearing trees for a company named Gulf Lumber.

Hays uses at least one other worker to clear stumps. Doris Gill operates a bulldozer and “pushes” stumps out. See Gill Depo., at 9, 13-14. Gill and Hays load the stumps on to trailers and Hays uses a series of other individuals to drive loads to the Hercules plant in Brunswick so that he and Gill can continue to harvest stumps. In the 6-12 months prior to the accident, Hays had personally driven a truck load to Brunswick only once or twice. Id. at 16-18; Hays Depo., at 16-18, 32-34.

Out in the field, Hays and Gill would have contact with foresters from Hercules. Id. at 20-21. The relationship between Hays and Gill and the foresters varied. Hays and Gill trusted and respected Ray Bryant and worked with him more closely than others. Bryant would “flag” stumps for Hays and Gill; that is put flags on stumps he thought would be beneficial to harvest. Id. at 29-31. Hays and Gill, however, would use their own judgment to determine which stumps to “push.” Id. at 31. Hays would sometimes reject land a Hercules forester recommended to him because Hays did not believe it would be economically worth his time if there were too few stumps in the area. Id. at 45. Gill testified that it was up to Hays whether to harvest the stumps pointed out by the Hercules forester. Id. at 47. For example, Gill testified that they rarely followed the recommendations of the current Hercules forester because he did not know “stumps from rocks.” Id.

In addition to the recommendation of Hercules foresters, Hays would also locate

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individuals with property that looked to be good for harvesting or individuals knowing his reputation would seek Hays out to clear their stumps Id. at 40. For example, Gill reported that she and Hays had been working on a particular estate for 3-4 years now based on Hays' contacts. Id. at 20-21. Gill testified that if any individual requested harvesting or “stumpage” fees, those fees would be paid by Hercules and not Hays. Id. at 78. Hays did not let any Hercules foresters interfere with the manner in which he ran his business. Id. at 80.
Contractual Agreements Between Hays and Hercules

Hays and Hercules entered into a Harvesting Contract (relating to extraction of stumps from the ground) and a Freight Contract (hauling the extracted stumps to the Hercules Brunswick plant). The Harvesting Contract specified the price Hercules would pay per ton for the one year term of the contract. See Harvesting Contract, Hercules Mot. S.J., Exhibit D, at 1. The contract was terminable by either party on thirty (30) days notice. The Harvesting Contract further states:

It is understood that the Contractor is an independent contractor and that the Contractor will perform all work and furnish all labor, equipment, machinery, and do everything necessary for the harvesting and delivery of whatever wood the Contractor sells to Hercules. This includes, but is not limited to, compliance with the worker's compensation laws and all laws and regulations relating to hiring, wages, hours, and taxes as may be applicable to the Contractor's operation. Contractor, its employees and agents will in no way be regarded, nor shall they act as agents or employees of Hercules.

Id. “The Contractor is not required to deliver any specified quantity of wood to Hercules.... The exclusive control of the method and means of harvesting and delivering wood will be the Contractor's responsibility, and Hercules shall not have and shall not exercise any supervision or control over the Contractor, its employees, or its agents in the harvesting and delivery of wood.” Id. The Freight Contract contains similar provisions. See Freight Contract, Hercules Mot. S.J., Exhibit E.

These contracts specify that the “contractor shall comply with all laws and regulations applicable to its performance under this contract.” Pat Grozier, Hercules' global supply chain manager, testified that Hercules expected its drivers to conform to the applicable law. See Grozier Depo., at 32. Hercules does not inspect the equipment used by harvesters and does not require harvesters and haulers to pass drug tests. Id. at 33.

Hays did need to repair his equipment from time to time or insure it, and he often did not have the money to do so. He would borrow the money from Hercules which then took a security interest in the equipment for the term of the loan. See Gill Depo., at 72. Hays signed a loan agreement with Hercules on February 17, 2007, for $3,063.40. See Cox-Frazier Depo., Exh. 3. The agreement provides that Hays transfers the “title to and a security interest in” two bulldozers to Hercules. Id. at 1. The agreement also provides that Hays would be in default on the loans if he failed to deliver any stumpwood to Hercules within a 30 day period. Id. at 2. The agreement further states that Hays would only use the secured equipment to provide stumpwood to Hercules. Id. Hays testified that he believed he could get permission to do other jobs if he asked, but that he had never inquired. See Hays Depo., at 189.

Another agreement was executed on May 18, 2007 for $19,918.80. See Cox-Frazier Depo., Exh. 4. (Hays also signed

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another loan agreement with Hercules, but that was executed after the accident at issue here.) As security for these loans, Hays was required to put his two bulldozers up as collateral. For a third loan executed on August 14, 2006, in the amount of $5,313.83, Hays also put up his 40-foot Hobbs Trailer as security. See Cox-Frazier Depo., Exh. 2. Hays was driving this trailer on the night of the accident. This loan, however, was paid off on March 4, 2007, prior to the accident. See Plaintiff's Exhibit C, pages 19-24 (showing loan closed on March 4, 2007, with a final payment of $113.83).
Processing Loads of Stumps at Hercules

Grozier testified that when a truck arrives at the Hercules plant in Brunswick, it is first taken to the truck scales where a “truck ticket” is printed. This ticket shows the lease number of the property where the wood came from, the hauler and harvester, and their identification numbers. See Grozier Depo., at 25, 65. The truck ticket also shows the scaled weights. Id. at 25-26. The Hercules accounting department uses these “truck tickets” to calculate payment for the load. The harvesters and haulers are paid weekly for...