Kavulak v. Laimis Juodzevicius, A.V. Inc.

Decision Date13 January 2014
Docket NumberNo. 09–CV–333S.,09–CV–333S.
Citation994 F.Supp.2d 337
PartiesEric D. KAVULAK, Plaintiff, v. LAIMIS JUODZEVICIUS, A.V. INC., and Transportation Solutions Group, LLC, Defendants.
CourtU.S. District Court — Western District of New York


Terrence P. Higgins, The Higgins Kane Law Group P.C., Buffalo, NY, for Plaintiff.

Megan K. Dorritie, Richard E. Alexander, Harter, Secrest & Emery LLP, Rochester, NY, John Wallace, Buffalo, NY, for Defendants.




Plaintiff commenced the present action in the Supreme Court of the State of New York, Erie County, in December 2008 against Defendants Laimis Juodzevicius and A.V., Inc. (“the AV Defendants). Defendants removed the case to this Court, asserting federal jurisdiction based on diversity. Plaintiff subsequently obtained leave and filed an amended complaint naming Transportation Solutions Group, LLC (TSG) as an additional Defendant. The motions presently before the Court include TSG's motion for summary judgment dismissing the complaint against it, Plaintiff's motion for partial summary judgment on the issues of negligence and serious injury under New York Insurance Law § 5102(d), and the AV Defendants' cross-motion for partial summary judgment on the issue of punitive damages. The Court finds all motions fully briefed and oral argument unnecessary.

For the reasons that follow, TSG's motion is granted, Plaintiff's motion is granted in part and denied in part, and the AV Defendant's motion is granted.


The present action is the result of an accident occurring in Buffalo, New York, on May 11, 2008. As part of his employment with AV, Defendant Juodzevicius was driving a tractor trailer carrying a shipment of plastic yogurt cups from the Chicago area through Buffalo to Syracuse. (Juodzevicius Dep. at 22, Aff. of Terrence Higgins, Esq., Ex. G, Docket No. 76; Dep. of Vladas Simkus at 25, Aff. of John Wallace, Esq., Ex. H., Docket No. 75.) AV and TSG describe TSG as the ‘broker’ for the load; that is, TSG contracted with Berry Plastics Corporation, the shipper, and then arranged for AV to actually transport the shipment. (Simkus Dep. at 22–23, Wallace Aff. Ex. H, Docket No. 75; Wallace Aff. Ex. S (freight broker contract between TSG and Berry Plastics); Simkus Dep. at 24–26, Higgins Aff. Ex. C, Docket No. 83.)

At approximately 11 p.m. that night, Plaintiff was working as a member of a bridge cleaning crew as part of his employment with the New York State Thruway Authority. (Pl's Dep. at 18–19, Higgins Aff. Ex. E, Docket No. 76.) Plaintiff was sitting inside a dump truck with an attenuator on the rear, which Plaintiff described as a crash box designed to absorb the impact of a collision. ( Id.) The truck was positioned at the head of a lane closure with an arrow indicator, and approaching traffic passed two additional signs warning of the closure before approaching his vehicle. ( Id.; Juodzevicius Dep. at 78–88, Higgins Aff. Ex. G, Docket No. 76; Higgins Aff. Ex. I.) He was wearing a hard hat at the time, and the truck was struck from behind shortly after he put on his seatbelt. (Pl's Dep. at 33–35). Prior to the collision, Defendant Juodzevicius had been driving in the middle lane after attempting to slow down upon entering the construction zone. (Juodzevicius Dep. at 54–55.)

Plaintiff's initial Complaint filed in New York State Supreme Court contained two causes of action. The first alleged that Defendant Juodzevicius' negligence caused Plaintiff severe injuries within the meaning of Section 5102(d) of New York Insurance Law, and that Defendant AV was vicariously liable for the negligence of its employee. (Notice of Removal, Ex. B, Docket No. 1.) The second cause of action alleges that these defendants are liable for punitive damages for the intentional and purposeful operation of the tractor-trailer for excessive hours, and the failure to make and keep proper records of those hours. ( Id.)

After being granted leave, Plaintiff filed an Amended Complaint adding TSG as a defendant and alleging in the first cause of action that TSG “is vicariously liable for any negligence of defendant Juodzevicius in his operation of the involved A.V., Inc. vehicle.” 1 (Am. Compl. ¶ 25, Docket No. 45.)


“A motion for summary judgment may properly be granted ... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir.2010). A court's function on a summary judgment motion “is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” Kaytor, 609 F.3d at 545 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “A dispute regarding a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505), cert. denied,540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003). A court must also “construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003).

A. TSG's Motion for Summary Judgment

TSG argues that it cannot be held vicariously liable for Plaintiff's injuries because it did not own or operate the tractor-trailer involved in the accident, and its only involvement was as a property broker that simply arranged for its independent contractor, AV, to deliver a shipment of goods for a TSG customer, Berry Plastics. (TSG Mem. of Law at 1, 10–13, Docket No. 75.) TSG further argues that it did not set Defendant Juodzevicius' schedule or route for delivering the shipment, never communicated with this driver while he was en route, and did not otherwise control or have the right to control the manner in which Juodzevicius performed his job. (TSG Mem. of Law at 11–14.)

TSG has also moved to strike the affidavit that Plaintiff's expert witness submitted in opposition to this motion, and to preclude any future testimony from this witness. (TSG Mem. of Law, Docket No. 107.) TSG argues that this witness's testimony is unreliable under Federal Rule of Evidence 702. Plaintiff opposes the motion on the ground that the proposed witness, David G. Dwinell, is a well qualified expert on the issue of broker liability in the trucking industry. (Pl' Mem. in Opp'n, Docket No. 120.)

1. TSG's Status as a Motor Carrier

Plaintiff argues in opposition to TSG's motion for summary judgment that the issue of control is not determinative because TSG was acting as a motor carrier under federal law, not a property broker, at the time of the accident and therefore is liable as such. (Pl's Mem. in Opp'n at 2, 4–13, Docket No. 84; Higgins Aff. ¶ 15, Docket No. 83.) Plaintiff's submissions fail to articulate why this Court should consider TSG's status as a motor carrier under federal law as relevant to the state law negligence claim asserted against it. In any event, this argument is a bit of a red herring, inasmuch as the motor carrier cases on which Plaintiff relies discuss claims for property damage under the Carmack Amendment, which is inapplicable to the present case. Nipponkoa Ins. Co., Ltd. v. C.H. Robinson Worldwide, Inc., No. 09 Civ. 2365(PGG), 2011 WL 671747, *2–3 (S.D.N.Y. Feb. 18, 2011); KLS Air Express v. Cheetah Trans., No. CIV. S–05–2593FCD DAD, 2007 WL 2428294, *3–4 (E.D.Cal. Aug. 23, 2007); Hewlett–Packard Co. v. Brother's Trucking Enter., 373 F.Supp.2d 1349, 1351–52 (S.D.Fla.2005); Delta Research Corp. v. EMS, Inc., No. 04–60046, 2005 WL 1981775, *2 (E.D.Mich. Aug. 16, 2005); Nebraska Turkey Growers Coop. Ass'n v. ATS Logistics Servs., No. 4:05CV3060, 2005 WL 3118008, *3–4 (D.Neb. Nov. 22, 2005); CGU Int'l Ins., PLC v. Keystone Lines Corp., No. C–02–3751 SC, 2004 WL 1047982, *1 (N.D.Cal. May 5, 2004); Custom Cartage, Inc. v. Motorola, Inc., No. 98 C 5182, 1999 WL 965686, *2, 7–8 (N.D.Ill. Oct. 15, 1999); Phoenix Assur. Co. v. K–Mart Corp., 977 F.Supp. 319, 324 (D.N.J.1997); Peerless Importers v. Cornerstone Sys. Inc., 26 Misc.3d 1223(A), 907 N.Y.S.2d 439, *2 (Sup.Ct.N.Y. County Jan. 5, 2010).

“The Carmack Amendment to the Interstate Commerce Act of 1887 governs the liability of motor carriers for loss or damage to goods transported in interstate commerce.” Nipponkoa Ins. Co., 2011 WL 671747 at *2 (citing 49 U.S.C. § 14706(d)); Phoenix Assur. Co., 977 F.Supp. at 324 (Carmack Amendment provides exclusive remedy for loss of goods by motor carriers); see Project Hope v. M/V IBN SINA, 250 F.3d 67, 73 n. 6 (2d Cir.2001). “The Carmack Amendment did this both by establishing a single uniform regime for recovery by shippers directly from the interstate common carrier in whose care their items are damaged, and by preempting the shipper's state and common law claims against a carrier for loss or damage to goods during shipment.” Project Hope, 250 F.3d at 73 n. 6 (internal quotation marks, brackets, and citations omitted). By enacting this amendment, Congress intended:

to “relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.” Reider v. Thompson, 339 U.S. 113, 119 [70 S.Ct. 499, 94 L.Ed. 698] (1950). Accordingly, the Carmack Amendment gives a shipper the “right to proceed against the initial carrier in a case where damage or loss occurred while the shipment was in the hands of a subsequent carrier.” Aaacon Auto Transp., Inc. v. State Farm Mut. Auto. Ins. Co., 537 F.2d 648, 653 (2d Cir.1976) “Carmack effectively codified the strict liability rule that governed the liability of common carriers at common law.” Sompo...

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