Rogers v. JB Hunt Transport, Inc.

• Citation: 624 N.W.2d 532,244 Mich. App. 600
• Decision Date: 05 April 2001
• Docket Number: Docket No. 219054.
• Parties: Alfonso E. ROGERS, Personal Representative of the Estate of Daimon Ja'Von Rogers, Deceased, Plaintiff-Appellee, v. J.B. HUNT TRANSPORT, INC., Defendant-Appellant, and Wesley Howard Crenshaw, Defendant.
• Court: Court of Appeal of Michigan — District of US

624 N.W.2d 532

244 Mich. App. 600

Alfonso E. ROGERS, Personal Representative of the Estate of Daimon Ja'Von Rogers, Deceased, Plaintiff-Appellee, v. J.B. HUNT TRANSPORT, INC., Defendant-Appellant, and Wesley Howard Crenshaw, Defendant.

Docket No. 219054.

Court of Appeals of Michigan.

Submitted November 8, 2000, at Lansing.

Decided February 16, 2001, at 9:00 a.m.

Released for Publication April 5, 2001.

Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by George T. Sinas and Michael E. Larkin), Lansing, for Alfonso E. Rogers.

Dykema Gossett PLLC (by Joseph H. Hickey and Kevin M. Zielke), Bloomfield Hills, for J.B. Transport, Inc.

Before DOCTOROFF, P.J., and HOEKSTRA and MARKEY, JJ.

DOCTOROFF, P.J.

Defendant J.B. Hunt Transport, Inc., appeals by leave granted from the trial court's order granting plaintiff's motion for partial summary disposition. We affirm.

I

In 1996, defendant¹ employed Wesley Howard Crenshaw as a truckdriver. On June 17, 1996, Crenshaw parked a tractortrailer owned by defendant on the north shoulder of westbound I-96 near the Creyts Road exit in Eaton County. At approximately 2:00 p.m. that day, the decedent was driving an automobile west on I-96, approaching the parked truck. Shortly before it would have passed the truck, the decedent's vehicle left the paved portion of the highway, traveled on the shoulder for approximately seventy-five feet, and collided with the right rear section of the truck's trailer.

According to the state police trooper who investigated the accident, the tractortrailer was completely off the main traveled portion of the highway and the rear taillights were on. It was disputed whether Crenshaw activated his flashers; however, Crenshaw admitted that he did not set out his emergency reflective triangles before the crash. The decedent died instantly as a result of injuries from the collision. The police were unable to determine why his vehicle left the roadway.

Plaintiff filed a complaint on July 23, 1996, alleging that Crenshaw's negligence was the proximate cause of the decedent's death and defendant was vicariously liable for Crenshaw's negligence. In its answer to the complaint, defendant admitted that it owned the truck involved in the collision, it employed Crenshaw, and Crenshaw was acting within the scope of his employment at the time of the accident. Defendant denied that Crenshaw was negligent or that Crenshaw's alleged negligence was the proximate cause of the decedent's death. Plaintiff apparently had great difficulty serving Crenshaw, and the trial court allowed plaintiff to serve Crenshaw by publication. Crenshaw answered the complaint on May 5, 1997, also admitting the employment relationship between the defendants, but denying negligence and causation.

Plaintiff first requested Crenshaw's deposition on May 13, 1997. The deposition was originally scheduled for September 1997, but was later canceled because of Crenshaw's failure to answer plaintiff's interrogatories. After rescheduling the deposition several times, on November 19, 1997, plaintiff filed a motion to compel Crenshaw's deposition. The trial court granted the motion to compel and issued an order stating that if Crenshaw did not appear for a deposition, the court would sanction him.

On July 10, 1998, plaintiff moved to default Crenshaw for failing to cooperate with discovery. Neither Crenshaw nor defendant responded to this motion, but defense counsel, who represented both defendant and Crenshaw, filed a motion seeking to withdraw from representing Crenshaw. The trial court heard both plaintiff's and defense counsel's motions on August 6, 1998. At the hearing, defense counsel did not oppose the motion on behalf of their clients, claiming that they were unable to communicate with Crenshaw and had done everything in their power to convince him to appear for a deposition and cooperate. The court granted both motions and entered orders defaulting Crenshaw and allowing defense counsel to withdraw from representing Crenshaw.

On December 13, 1998, plaintiff moved for partial summary disposition, arguing that Crenshaw's default settled the issue of his liability and neither Crenshaw nor defendant could dispute the issues of negligence or causation. Plaintiff further argued that because defendant admitted that it was Crenshaw's employer and Crenshaw was acting in the scope of his employment at the time of the accident, defendant could not dispute its vicarious liability for Crenshaw's negligence.

At the hearing on plaintiff's motion, the trial court indicated that it was inclined to enter an order finding that defendant was vicariously liable for Crenshaw's negligence, but that defendant could still argue that the decedent was comparatively negligent. At a subsequent pretrial hearing, the court entered an order finding that Crenshaw was negligent and that his negligence was a proximate cause of the decedent's death. The order also stated that defendant was vicariously liable for Crenshaw's negligence and could not contest this issue at trial, but that defendant could present the defense of the decedent's comparative negligence. Defendant sought leave to appeal the trial court's order, which this Court granted.²

II

On appeal, defendant argues that the trial court erred in granting plaintiff's motion for partial summary disposition because Crenshaw's default did not resolve the issue of defendant's liability. This Court reviews de novo a trial court's grant of a motion for summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998).

Defendant's sole issue on appeal presents a question of first impression for this Court. In this case, we are asked to determine how the default of a defendant employee affects the liability of a codefendant employer who has no direct liability to plaintiff, but who would be vicariously liable for the defaulting defendant's negligence. In so doing, we recognize that a conflict exists between the application of the doctrine of vicarious liability and the effect of default on nondefaulting codefendants.

It is an established principle that the entry of default operates as an admission by the defaulting party of all the plaintiff's well-pleaded allegations. Kalamazoo Oil Co. v. Boerman, 242 Mich.App. 75, 79, 618 N.W.2d 66 (2000); American Central Corp. v. Stevens Van Lines, Inc., 103 Mich.App. 507, 512, 303 N.W.2d 234 (1981). However, the default is an admission of liability only, and the defaulting defendant still has the right to contest damages. Id. In this case, the parties do not dispute that the trial court's entry of default against Crenshaw acted as an admission of his negligence and precluded him from arguing any issue other than the damages suffered from his negligence.

What is at issue is the effect of Crenshaw's default on the ability of defendant to dispute liability. The general rule is that the default of one defendant is not an admission of liability on the part of a nondefaulting codefendant. Allstate Ins. Co. v. Hayes, 442 Mich. 56, 73, n. 20, 499 N.W.2d 743 (1993); Klimmer v. Klimmer, 66 Mich.App. 310, 313, 238 N.W.2d 586 (1975). However, application of the general principle in this case is complicated by the fact that defendant's only possible liability in this case would be vicarious liability for the negligence of Crenshaw.

In order to prove that a defendant employer is vicariously liable for its employee's negligent acts, the plaintiff need only show that there was an employment relationship between the employer and the employee and the negligence occurred within the scope of the employment. Helsel v. Morcom, 219 Mich.App. 14, 21, 555 N.W.2d 852 (1996). Here, defendant admitted that it employed Crenshaw, and he was acting within the scope of his employment when he parked the truck on the highway. Because of these admissions, the only possible way that defendant could directly contest liability would be to argue that Crenshaw was not negligent. However, Crenshaw's negligence was established by default and should no longer be an issue in this case. It is clear that the outcome of this case hinges on our resolution of this inherent conflict between the effect of Crenshaw's default and the imposition of vicarious liability on defendant.

Unfortunately, the existing authority does not offer much guidance on this issue. To date, our case law has dealt only with situations where the codefendant's liability is direct, not derivative. Defendant cites several cases that it claims bolster its argument that a defendant should not be held vicariously liable for the default of a codefendant. In Klimmer, supra, this Court held that a nondefaulting defendant could not be bound by the admission of liability resulting from a codefendant's default. Id. at 312-313, 238 N.W.2d 586. However, Klimmer is easily distinguishable because it involves two defendants who were jointly liable on a promissory note and does not raise any issues of vicarious liability. Id. at 311, 238 N.W.2d 586. Defendant also cites Allstate, supra, and Dobson v. Maki, 184 Mich.App. 244, 457 N.W.2d 132 (1990), in support of its argument against liability. However, neither of these cases involves a situation where a nondefaulting defendant was subject to vicarious liability for the negligence of a defaulting defendant. Allstate, supra at 57, 499 N.W.2d 743; Dobson, supra at 247, 457 N.W.2d 132.

The case most closely analogous to the present is this Court's decision in Worth v. Dortman, 94 Mich.App. 103, 288 N.W.2d 603 (1979). In Worth, the plaintiff was a passenger in a vehicle driven by the defendant Dortman and owned by the defendant Au. Worth was employed by Au, who allowed him to use the vehicle as partial compensation for his employment. After an evening of drinking, Worth decided to allow an acquaintance, Dortman, to drive the vehicle, and Worth was injured when Dortman crashed the vehicle. Worth sued Dortman on a theory of negligence, and...