Ortiz v. Ben Strong Trucking, Inc.

Decision Date29 August 2022
Docket NumberCivil Action CCB-18-3230
PartiesCARLA ORTIZ, et al. v. BEN STRONG TRUCKING, INC., et al.
CourtU.S. District Court — District of Maryland


This tort action arises out of a June 2018 traffic accident on Interstate 95 in Harford County, Maryland, in which the driver of a tractor trailer operated by defendant Ben Strong Trucking (hired by the Cowan defendants to move a load of roof shingles for GAF Materials) crashed into the back of plaintiff Carla Ortiz's car, which then struck Paul Michael Manion's and Cheryl Manion's car. Then Ortiz's car struck Cierra Lashae Rice-Wilder's car and that car struck another tractor trailer. The collisions resulted in physical injuries to the plaintiffs, including permanently debilitating injuries to Ortiz's minor daughter and the death of the Manions' child.

In a June 2019 memorandum and order (ECF 26, 27), this court dismissed the plaintiffs' claims of negligent infliction of emotional distress, intentional infliction of emotional distress, and punitive damages, leaving three claims against Cowan and Ben Strong: Counts I (Negligence), II (Negligent Hiring), and III (Broker Liability). The case was bifurcated into a liability phase and a damages phase. This memorandum concerns dispositive motions and pretrial evidentiary motions on liability.

Defendant Cowan Systems filed a statement of undisputed facts (ECF 132-2) and moved for summary judgment as to liability (ECF 132-3), and the Manion plaintiffs responded and filed a cross-motion for partial summary judgment on the issue of violations of MAP-21 by the' Cowan defendants (ECF 135). Plaintiff Carla Ortiz likewise responded to Cowan's motion for summary judgment, filing a response to Cowan's statement of undisputed material facts (ECF 139-1), her own counter-statement of undisputed material facts (ECF 139-2), an opposition to Cowan's motion (ECF 139-3), and a motion (ECF 139-4) renewing her earlier motion for partial summary judgment (ECF 58, denied at ECFs 116, 117). And plaintiff Cierra Rice-Wilder responded (ECF 140-2) to Cowan's motion by adopting Ortiz's and the Manion plaintiffs' arguments.

Cowan filed an omnibus reply (ECF 145) supporting its motion for summary judgment and responding to the plaintiffs' cross-motions for summary judgment, and Cowan also responded to the plaintiffs' counter-statements of undisputed material facts (ECF 145-1). The Manion plaintiffs (ECF 148) and Ortiz (ECF 151) replied in support of their cross-motions for summary judgment.

Two motions in limine are also pending. First, Cowan moved to exclude the testimony and opinions of the plaintiffs' broker liability experts (ECF 128). The Manion plaintiffs (ECF 134), Ortiz (ECF 136-1) and Rice-Wilder (ECF 137-2) opposed the motion, and Cowan replied in support of its motion (ECF 144). Shortly before oral argument, Ortiz filed a supplement (ECF 15 8) to her opposition.

Second, the Manion plaintiffs (ECF 129) and Ortiz (ECF 133-1) moved to exclude Cowan's expert witness Annette M. Sandberg. Cowan responded in opposition (ECF 138), and Ortiz (ECF 142-1) and the Manion plaintiffs (ECF 143) both replied in support of their motions.

Finally, the plaintiffs moved (ECF 141) to strike Cowan's amended answers to interrogatories and errata sheet (ECF 141-6, Ex. 4). Cowan responded (ECF 152), and the plaintiffs replied (ECF 153).

All these motions have been fully briefed, and the court heard oral argument on March 11,2022.

The Collision

This tort action arises out of a June 18, 2018, traffic accident on northbound Interstate 95 in Harford County, Maryland. John Oliver Terry, Jr., was driving a tractor trailer for defendant Ben Strong Trucking. Starting about a mile before the crash site, signs warned of a construction zone due to several lane closures. (ECF 139-37, Nance Rep. at 34-35). Terry, however, said he had not seen the signs; he said he began to slow down when he saw brake lights in front of him. At one point, he believed he saw a car - Ortiz - cut in front of him, and he said he was not able to stop in time. The on-scene Maryland State Police crash report said all drivers involved except Terry had been stopped or were slowing to a stop before the collision. The plaintiffs' accident reconstructionist reported that Ortiz was slowing down from 16.2 miles per hours to 11.2 miles per hours at time of the impact, and the truck had decelerated to about 42 miles per hour. (ECF 139-37, Ex. 30, Nance Rep. at 38-39). According to the reconstructionist, Terry said during his deposition that he had been traveling at 55-60 miles per hour before applying his brakes, decelerating to 45 miles per hour at the time of impact. (Id. at 20).

Terry crashed into the back of plaintiff Carla Ortiz's Toyota Camry. The truck and Ortiz's car then traveled together as one combined unit, driving over to the left shoulder and striking the other plaintiffs' cars, including the Manions' Honda Civic, which was then overturned on its roof in a ditch just past the edge of the road. The collisions resulted in physical injuries to the plaintiffs, including permanently debilitating injuries to Ortiz's daughter and the death of the Manion plaintiffs' child, M.M.

A post-accident North American Standard Commercial Motor Vehicle Level I Inspection determined that there was nothing mechanically wrong with the truck pre-collision that would have rendered the vehicle out of service under Federal Motor Carrier Safety Administration regulations. (ECF 132-32, Ex. 28, Peters Dep. at 25:3-7). Nor did the inspector identify any driver violations (e.g., lack of a valid license) that would have rendered Terry out of service as a driver. (Id. at 32-33). The on-scene investigator, however, listed the following contributing circumstances on the crash report: “Failed to give full time and attention, too fast for conditions, followed too closely, inattentive, disregarded other road markings, driver distracted[,] [i]nattentive[,] or lost in thought.” (Id. at 33:9-34:8) .

Cowan's Corporate Structure

Several Cowan entities are defendants in this case: Cowan Systems LLC (“Cowan Systems”), Cowan Systems Transportation LLC (“CST”), and Cowan Systems Inc. (“CSI”). Only Cowan Systems persists as an active business entity.

CSI is the oldest Cowan entity and is no longer active. It was incorporated in 1994 and received its carrier operating authority in 1994 and its broker operating authority in 1995. In May 2000, CSI ceased all operations and has not conducted any business activities since then. All of its assets (including its carrier and broker authorities) and employees were transferred to Cowan Systems, which was formed simultaneously to CSI's divestment.

CST (also known as Cowan Global Logistics) was a brokering operation created as a separate entity by Cowan Systems. It held broker operating authority under U.S. DOT number 542448, although “Cowan Global Logistics” did not hold federal broker authority. While CSI still exists (albeit inactively since 2000), CST no longer exists. It began to wind down its activities after a leadership change in 2008, and it ceased all business with 2010 Articles of Cancellation as Cowan Systems was attempting to promote brokerage in its business. CST transferred its brokerage operations to Cowan Systems, but when the CST brokerage license went dormant in 2010, Cowan Systems already had a broker license due to the 2000 transfer from CSI.

Cowan Systems is registered with the federal transportation department as a motor property contract carrier, property broker, and motor property common carrier; the Federal Motor Carrier Safety Administration's SAFER website lists Cowan Systems' active USDOT number as 548880. The FMCSA issued Cowan Systems broker authority under license number MC 271882-B in May 2000. This broker authority has never been revoked by USDOT. Cowan Systems also uses the name “Cowan Logistics” as a trade name for its brokerage division; Cowan argues that when exercising its brokerage authority, Cowan Systems used the trade name but always referred to itself as well (e.g., COWAN LOGISTICS, a division of COWAN SYSTEMS, LLC). Cowan Systems' motor carrier operating authority license number is 271882P. The parties dispute whether the broker and carrier operating authority license numbers are separate numbers. (ECF 145-1 ¶ 24).

GAF and Cowan

The load being carried the day of the accident was shipped by GAF Materials and intended for Harvey Building Products. No written agreement existed between GAF (the shipper) and Cowan. When GAF intended to assign a contract shipment to Cowan, GAF would enter the assignment and the rate for the shipment into its CarrierPoint system. The rates were lane-specific; meaning they varied based on the destination rather than whether Cowan was brokering the load to another carrier or carrying the load with its own assets division.

When Cowan brokered a shipment to another carrier, Cowan would advise the carrier that it should sign in with its own carrier name at GAF upon arrival. Cowan would advise GAF that . the carrier was there to pick up a load assigned to Cowan as a broker. The parties dispute whether the third-party carrier would provide its own name to GAF rather than just the order number and Cowan's name; Cowan says the third-party carrier would provide its own name and Cowan's name as the entity assigned through CarrierPoint, but the plaintiffs say the third-party carrier would tell GAF that it was not a Cowan truck only after the driver loaded the truck and was proceeding out of GAF's facility. (ECF 139-1, Pl. Resp. to Def. Statement of Undisputed Material Facts, at ¶ 44).

Once the truck was loaded, the bill of lading and packing slip...

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