Mahar v. US XPRESS ENTERPRISES, INC.

• Decision Date: 24 February 2010
• Docket Number: No. 1:06-cv-1297 (GLS*RFT).,1:06-cv-1297 (GLS*RFT).
• Parties: Cornelius MAHAR and Maureen Mahar, Plaintiffs, v. US XPRESS ENTERPRISES, INC.; US Xpress Leasing, Inc.; Xpress Global Systems, Inc.; and Gloria V. Morgan, Defendants/Third-Party Plaintiffs, v. Polsinello Fuels and Polsinello Fuels, Inc., Third-Party Defendants.
• Court: U.S. District Court — Northern District of New York

688 F.Supp.2d 95

Cornelius MAHAR and Maureen Mahar, Plaintiffs, v. US XPRESS ENTERPRISES, INC.; US Xpress Leasing, Inc.; Xpress Global Systems, Inc.; and Gloria V. Morgan, Defendants/Third-Party Plaintiffs, v. Polsinello Fuels and Polsinello Fuels, Inc., Third-Party Defendants.

No. 1:06-cv-1297 (GLS*RFT).

United States District Court, N.D. New York.

February 24, 2010.

Flink, Smith Law Firm, Edward Flink, Esq., Christopher Guetti, Esq., Jennifer L. Dominelli-Lecakes, Esq., of Counsel, Latham, NY, for the Plaintiffs.

Rawle, Henderson Law Firm, Diane Beckman Carvell, Esq., Jon M. Dumont, Esq., James A. Wescoe, Esq., of Counsel, New York, NY, Baker, Donelson Law Firm, Kenneth S. Powers, Esq., of Counsel, Chattanooga, TN, for the Defendants.

Thuillez, Ford Law Firm, Donald P. Ford, Jr., Esq., of Counsel, Albany, NY, for the Third-Party Defendants.

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, District Judge.

I. Introduction

Plaintiffs Cornelius and Maureen Mahar brought this action against U.S. Xpress, Inc., U.S. Xpress Enterprises, Inc., U.S. Xpress Leasing, Inc., Xpress Global Systems, Inc., and Gloria Morgan for injuries and damages sustained in a tractor-trailer accident. (Am. Compl., Dkt. No. 5.) U.S. Xpress and Morgan filed a counterclaim against Cornelius Mahar, (Dkt. No. 8), and a third-party complaint against Polsinello Fuels and Polsinello Fuels, Inc., (3d-Party Am. Compl., Dkt. No. 24). Pending are: Polsinello's motions for partial summary judgment and summary judgment; Morgan's motion for summary judgment; US Xpress and Morgan's motion for summary judgment; US Xpress's motion for summary judgment; and the Mahars' motions for summary judgment, leave to amend, and sanctions.

For the reasons that follow: (1) Polsinello's motion for partial summary judgment, (Dkt. No. 109), is granted insofar as U.S. Xpress's claim for New York State cleanup costs is dismissed, but is denied as to U.S. Xpress's claims for towing, storage, and loss of use damages; (2) Polsinello's motion for summary judgment, (Dkt. No. 111), is granted insofar as "Polsinello Fuels" is dismissed from the action and U.S. Xpress and Morgan's claim for negligent hiring, training, and supervision is dismissed, but is denied as to the claims of negligence and vicarious liability; (3) Morgan's motion for summary judgment for improper service, (Dkt. No. 113), is denied; (4) U.S. Xpress and Morgan's motion for summary judgment, (Dkt. No. 114), is denied as to the claims of negligence, vicarious liability, and negligent hiring, training, and supervision; (5) U.S. Xpress's motion for summary judgment, (Dkt. No. 115), is granted and U.S. Xpress Enterprises, U.S. Xpress Leasing, and Xpress Global Systems are dismissed from the action; (6) the Mahars' motion for summary judgment, (Dkt. No. 116), is denied as to the claims of negligence and vicarious liability; (7) the Mahars' motion for leave to amend is granted; and (8) the Mahars' motion for sanctions is denied.

II. Background

A. Facts

Defendant Gloria Morgan began her employment with defendant U.S. Xpress, Inc. on November 12, 2004. (See Pl. SMF ¶ 6, Dkt. No. 117:65.) Beginning on December 22, 2004, after obtaining her Commercial Driver's License (CDL) and receiving in-class and on-the-road training and testing, Morgan operated a 2004 Freightliner tractor numbered 40035, which was maintained by U.S. Xpress. (See Def. Resp. SMF ¶¶ 1-2, 51-60, Dkt. No. 132:2.) On January 3, 2005, Morgan was driving tractor 40035 with a trailer in tow on Interstate 87 South when she saw smoke in the front of her truck. (See id. at ¶ 9.) In response, Morgan pulled her tractor into a rest stop and performed a "pre-trip" inspection of her engine. (See Morgan Dep. at 92, Dkt. No. 117:5.) After checking the tractor's engine, underside, and interior, and finding no smoke or other apparent problems, Morgan departed from the rest stop. (See id. at 92, 97.) Within thirty minutes of getting back on I-87, as Morgan was proceeding up a hill in Essex County, her tractor began slowing down and the "engine protect" light began to blink. (See id. at 113.) Morgan then merged from the middle lane into the rightmost lane of the highway, after which the engine light turned solid and the tractor stopped. (See id.) After coming to a stop in the right lane of traffic, Morgan turned on her hazard lights, called in the situation to Qualcomm, and exited the passenger side of the tractor, allegedly to put out hazard triangles. (See id. at 117-18.)

Immediately thereafter, Cornelius Mahar, who was driving a 1994 International tractor numbered 594 in the rightmost lane of I-87 South, collided with Morgan's tractor-trailer. (See Polsinello SMF ¶¶ 6, 29, Dkt. No. 111:9.) At that time, Mahar¹ was in the course of his employment with Polsinello Fuels, Inc., which owned tractor 594 and the fuel tanker in tow. (See id. at ¶¶ 4-7.) According to Mahar, he began driving tractors in 1969, and since then logged two- to three-million miles pulling trailers and tankers. (See id. at ¶ 31.) As to tractor 594, Mahar had operated it since 1994. (See id. at ¶ 29.) During his employment with Polsinello, Mahar also trained and verified new drivers in loading and hauling fuel tankers. (See id. at ¶ 33.)

As to the conditions at the time of the accident, Morgan testified that she did not notice any fog or weather conditions that would have affected her visibility. (See Morgan Dep. at 117, Dkt. No. 117:5.) However, several individuals testified to encountering heavy fog precisely where Morgan's tractor-trailer had stopped, limiting the visibility in the area to between twenty and sixty feet. (See Tuz Dep. at 21-22, Dkt. No. 117:20; Nichols Dep. at 19-20, 28-30, Dkt. No. 117:21.) And according to Patricia Bashaw, an emergency medical technician (EMT) who was one of the first responders, she was "stunned" by how fast the fog came on as she approached the accident. (See Bashaw Dep. at 23-25, Dkt. No. 117:22.)

Upon arriving at the scene, Bashaw found Mahar in critical condition. (See id. at 27-30.) Bashaw and Leslie Fleury, another EMT, transported him to Elizabethtown Community Hospital, and then to Fletcher Allen Healthcare in Burlington, Vermont. (See id. at 27-44.) As a result of the collision, Mahar suffered serious injuries, though the extent of those injuries are in dispute. (Compare Pl. SMF ¶ 13, Dkt. No. 117:65, with Def. Resp. SMF ¶ 13, Dkt. No. 132:2.)

B. Procedural History

On June 13, 2006, Mahar, and his wife, Maureen Mahar, filed suit against U.S. Xpress Enterprises, Inc., U.S. Xpress Leasing, Inc., Xpress Global Systems, Inc., and Morgan, in New York State Supreme Court, Rensselaer County, alleging negligence resulting in injuries to Mahar and derivative injuries to Maureen Mahar. (See Dkt. No. 1.) On October 25, the action was removed to the United States District Court for the Northern District of New York based on diversity jurisdiction under 28 U.S.C. § 1332(a)(1).² (See id.) On November 15, the Mahars amended their complaint to add U.S. Xpress as a party. (See Am. Compl., Dkt. No. 5.) The defendants filed an answer and a counterclaim against Mahar for negligence, (see Dkt. No. 8), and a third-party complaint against Polsinello Fuels and Polsinello Fuels, Inc. for contribution and indemnification and for property damage,³ (see Dkt. No. 24). In response, Polsinello filed a counterclaim for damages sustained to its property. (See Dkt. No. 25.)

After extensive discovery, a flurry of dispositive motions followed, including: Polsinello's motions for partial summary judgment and summary judgment, (Dkt. Nos. 109, 111); Morgan's motion for summary judgment, (Dkt. No. 113); US Xpress and Morgan's motion for summary judgment, (Dkt. No. 114); and the Mahars' motions for summary judgment, leave to amend, and sanctions, (Dkt. Nos. 116, 117).

In addition, U.S. Xpress moved for summary judgment seeking dismissal of all claims against U.S. Xpress Enterprises, Inc., U.S. Xpress Leasing, Inc., and Xpress Global Systems, Inc. (See Dkt. No. 115.) By letter, both the Mahars and Polsinello conceded that these parties should be released and the claims against them dismissed. (See Dkt. Nos. 118, 130.) Accordingly, the court grants U.S. Xpress's motion for summary judgment insofar as it pertains to dismissal of all claims against U.S. Xpress Enterprises, Inc., U.S. Xpress Leasing, Inc., and Xpress Global Systems, Inc. Polsinello likewise moves to dismiss Polsinello Fuels from this action because it is not an existing legal entity and therefore is not a party capable of being sued. (See Polsinello Mem. of Law, Dkt. No. 111:10.) In light of U.S. Xpress and Morgan's concession that Polsinello Fuels should be dismissed, (see Def. Resp. Mem. of Law at 9, Dkt. No. 131:4), and without affecting the claims against Polsinello Fuels, Inc., the court grants Polsinello's summary judgment motion insofar as it concerns the claims against Polsinello Fuels as a non-entity.

III. Standard of Review

The standard for the grant of summary judgment is well established, and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F.Supp.2d 192, 194-95 (N.D.N.Y.2007).

IV. Discussion

A. Sufficiency of Service

Morgan individually moves for summary judgment on the Mahars' claims based on an alleged failure to effectuate proper service. (See Dkt. No. 113.) However, because the failure to effectuate service is a matter related to personal jurisdiction, the defense to which Morgan has waived, and because the court prefers resolution of cases on their merits, Morgan's motion for summary judgment based on insufficient service of process is denied.

"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (...