Kozlov v. Associated Wholesale Grocers, Inc.

Decision Date23 March 2016
Docket NumberNos. 15–1098,15–1101.,15–1100,s. 15–1098
Citation818 F.3d 380
Parties Igor KOZLOV, Plaintiff–Appellant v. ASSOCIATED WHOLESALE GROCERS, INC. a Kansas Corporation, Defendant–Appellee Pamela Scott, Personal Representative of the Estate of Michael E. Scott, Deceased; Roadtex Transportation Corp.; Roadtex Corp. —Bayonne, NJ; Roadtex Corp. —Colts Neck, NJ; Roadtex Logistics, LLC; Roadtex Transportation Management Corp., Defendants Andrei Tchikobava, Plaintiff–Appellant v. Associated Wholesale Grocers, Inc., a Kansas Corporation, Defendant–Appellee Pamela Scott, Personal Representative of the Estate of Michael E. Scott, Deceased; Albatross Express, LLC ; Roadtex Corp. —Bayonne, NJ; Roadtex Corp. —Colts Neck, NJ; Roadtex Logistics, LLC; Roadtex Transportation Corp.; Roadtex Transportation Management Corp., Defendants Nebraska Association of Trial Attorneys, Amicus Curiae—Amicus on Behalf of Appellant(s) Igor Kozlov, Plaintiff–Appellant v. Associated Wholesale Grocers, Inc. a Kansas Corporation, Defendant–Appellee Pamela Scott, Personal Representative of the Estate of Michael E. Scott, Deceased; Roadtex Transportation Corp.; Roadtex Corp. —Bayonne, NJ; Roadtex Corp. —Colts Neck, NJ; Roadtex Logistics, LLC; Roadtex Transportation Management Corp., Defendants Pamela Scott, Counter Claimant Albatross Express, LLC ; Unick, LLC; Igor Kozlov, Counter Defendants–Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

818 F.3d 380

Igor KOZLOV, Plaintiff–Appellant
v.
ASSOCIATED WHOLESALE GROCERS, INC. a Kansas Corporation, Defendant–Appellee

Pamela Scott, Personal Representative of the Estate of Michael E. Scott, Deceased; Roadtex Transportation Corp.; Roadtex Corp. —Bayonne, NJ; Roadtex Corp. —Colts Neck, NJ; Roadtex Logistics, LLC; Roadtex Transportation Management Corp., Defendants

Andrei Tchikobava, Plaintiff–Appellant
v.
Associated Wholesale Grocers, Inc., a Kansas Corporation, Defendant–Appellee

Pamela Scott, Personal Representative of the Estate of Michael E. Scott, Deceased; Albatross Express, LLC ; Roadtex Corp. —Bayonne, NJ; Roadtex Corp. —Colts Neck, NJ; Roadtex Logistics, LLC; Roadtex Transportation Corp.; Roadtex Transportation Management Corp., Defendants

Nebraska Association of Trial Attorneys, Amicus Curiae—Amicus on Behalf of Appellant(s)

Igor Kozlov, Plaintiff–Appellant
v.
Associated Wholesale Grocers, Inc. a Kansas Corporation, Defendant–Appellee

Pamela Scott, Personal Representative of the Estate of Michael E. Scott, Deceased; Roadtex Transportation Corp.; Roadtex Corp. —Bayonne, NJ; Roadtex Corp. —Colts Neck, NJ; Roadtex Logistics, LLC; Roadtex Transportation Management Corp., Defendants

Pamela Scott, Counter Claimant

Albatross Express, LLC ; Unick, LLC; Igor Kozlov, Counter Defendants–Appellants.

Nos. 15–1098
15–1100
15–1101.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 19, 2015.
Filed: March 23, 2016.

Rehearing and Rehearing En Banc Denied in No. 15–1098 May 3, 2016.

Rehearing Denied in No. 15–1100 May 4, 2016.


818 F.3d 386

George Hamilton Moyer, Jr., argued, Madison, NE (Herbert J. Friedman, Lincoln, NE and Rene Lapierre, Sioux City, IA, on the brief), for Plaintiff–Appellant, Igor Kozlov.

James C. Bocott, on the brief and argued, North Platte, NE, for Andrei Tchikobava, Plaintiff–Appellant, Andrei Tchikobava.

James J. Paloucek, North Platte, NE, on the brief, for Nebraska Association of Trial Attorneys, Amicus Nebraska Association of Trial Attorneys.

Ryan Edward Karaim, argued, Kansas City, MO, (John G. Schultz, Kansas City, MO and Stephen G. Olson, II, Omaha, NE, on the brief), for Defendant–Appellee.

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

BEAM, Circuit Judge.

Igor Kozlov and Andrei Tchikobava (collectively "Plaintiffs"), employees of Albatross Express, LLC (Albatross), were injured when a tractor-trailer driven by Michael Scott, an employee of Associated Wholesale Grocers, Inc. (AWG), collided with their tractor-trailer on Interstate 80 (I–80) in rural Nebraska. At the time of the crash, Kozlov was driving, and Tchikobava was a passenger. Scott was killed in the crash. Kozlov and Tchikobava both filed personal injury lawsuits against AWG and Scott's estate. The lawsuits against Scott's estate were resolved prior to trial. At trial, the jury found that both Plaintiffs and AWG met their burdens of proof. The jury further found that Kozlov was 84% at fault, Tchikobava was 8% at fault, and AWG was 8% at fault. Because both Kozlov's and Tchikobava's negligence was equal to or greater than AWG's negligence, Plaintiffs were barred from recovery. Plaintiffs now appeal the district court's1 denial of recovery and request that the cases be reversed and remanded for a new trial. For the reasons discussed below, we affirm.

818 F.3d 387

I. BACKGROUND

Kozlov responded to an ad in a Russian newspaper in New York, in which Albatross specifically sought Russian drivers with little to no trucking experience. Albatross hired Kozlov to drive loads between New York and California. Because Kozlov was an inexperienced driver, Tchikobava, a more experienced driver with Albatross, was assigned to ride with him for the cross-country trip. Per company policy, inexperienced drivers, like Kozlov, were forbidden from driving during the night. Moreover, the experienced driver was not to be in the sleeper berth while the inexperienced driver was operating the truck. Before Albatross sent Kozlov on his first trip with Tchikobava, the owner of the company told Tchikobava to "keep an eye" on Kozlov because of his lack of experience. Tchikobava was to give Kozlov on-the-job training during the trip.

AWG is a grocery wholesaler operating seven warehouses, each of which has its own trucks and trailers. At the time of the collision, AWG's trucks were all equipped with onboard computers to electronically log and monitor the driver's activities. Scott had been employed by AWG since 1979.

On August 9, 2010, Scott was driving an AWG tractor-trailer on I–80. Kozlov was also driving a tractor-trailer on I–80 with Tchikobava as a passenger. At approximately one o'clock in the morning, Scott rear-ended the tractor-trailer driven by Kozlov. At the time of the crash Tchikobava was asleep in the sleeper berth of the vehicle. The collision caused the AWG vehicle to burst into flames, and Scott died in the fire. Both Kozlov and Tchikobava were injured in the crash. The crash site showed no braking marks and no marks indicating any evasive maneuvers, supporting the inference that Scott did not try to stop, turn, or change lanes. The Nebraska State Patrol (NSP) arrived on the scene and began an investigation. They determined that the accident was a high speed collision, meaning either Scott was speeding or Kozlov was driving very slowly, or both. NSP analyzed the Electronic Control Module (ECM) on the Albatross truck driven by Kozlov. It showed that Kozlov had slowed down to 13.5 mph immediately before the collision. Due to severe fire damage, no information from the AWG truck's ECM could be retrieved, but the GPS computer system on the AWG truck showed that Scott had been driving at a speed of 70 mph until a short distance before the accident. As a result of the crash, Kozlov was charged with vehicular manslaughter and furnishing false information to law enforcement. He was eventually acquitted of the manslaughter charge but convicted of the false information charge.

Three civil suits were filed as a result of the crash: (1) a wrongful death case by Scott's estate against Kozlov and Albatross; (2) a personal injury lawsuit by Kozlov against AWG and Scott's estate; and (3) a personal injury lawsuit by Tchikobava against AWG and Scott's estate. Albatross settled the estate's wrongful death claim, and prior to trial, all remaining claims, other than Kozlov's and Tchikobava's personal injury claims against AWG, were resolved by dismissal or stipulation. The cases were then consolidated for all purposes, including trial. The personal injury suits against AWG proceeded to trial on November 18, 2014. The jury found for AWG on all claims. The jury form instructed the jury to determine whether the Plaintiffs had met their burdens and whether defendant AWG met its burden. If both Plaintiffs and AWG met their burdens of proof, the jury was to assign a percentage of negligence to each party. The jury found that all parties met

818 F.3d 388

their burdens of proof and allocated negligence as follows: Kozlov was 84% at fault, Tchikobava was 8% at fault, and AWG was 8% at fault. The jury was then tasked with assigning economic and noneconomic damages for each plaintiff. The jury awarded Kozlov $300,000 in economic damages and $20,000 in noneconomic damages. The jury awarded Tchikobava $842,000 in economic damages and no noneconomic damages. However, because both Kozlov's and Tchikobava's negligence was equal to or greater than AWG's negligence, both were barred from recovery under state law. See Neb.Rev.Stat. § 25–21,185.09. This appeal followed.

Tchikobava and Kozlov both appeal the district court's decision to allow the negligence of all three parties to be assessed by the jury on a single verdict form. Tchikobava also argues that the district court (1) failed to properly instruct the jury on proximate cause and (2) erred in calculating his noneconomic damages. Kozlov argues the district court erred (1) in its jury instructions; (2) by submitting negligence issues to the jury; (3) by allowing Dr. Sokol's expert opinion in evidence; (4) by failing to allow him to amend his complaint; and (5) by excluding evidence of Scott's failing health and prior accident.

II. DISCUSSION

Because this is a diversity case, we apply Nebraska law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ("Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State."). Nebraska recognizes contributory negligence as a defense against certain civil actions, such as this case. Neb.Rev.Stat. § 25–21,185.09. According to the statute:

Any contributory negligence chargeable to the claimant shall diminish proportionately the amount awarded as damages for an injury attributable to the claimant's contributory negligence but shall not bar recovery, except that if the contributory negligence of the claimant is equal to or greater than the total negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery.

Id. (emphasis added). "This modified comparative negligence statute, with its equal-fault bar, replace[d] the previous standard," which barred a plaintiff from recovery if the claimant's contributory...

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