Santana v. Arpin America Moving System, LLC, No. 2-08-132-CV (Tex. App. 8/13/2009)
| Decision Date | 13 August 2009 |
| Docket Number | No. 2-08-132-CV.,2-08-132-CV. |
| Parties | ELIZABETH SANTANA, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ROJELIO SANTANA, AND AS NEXT FRIEND OF DIANA SANTANA, ROJELIO SANTANA, JR., MARISSA SANTANA, PAULINE SANTANA AND FREDERICO SANTANA, Appellant, v. ARPIN AMERICA MOVING SYSTEM, LLC AND PAUL ARPIN VAN LINES, Inc., Appellees. |
| Court | Texas Court of Appeals |
Appeal from the 67th District Court of Tarrant County.
Panel: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
This is a summary judgment appeal. Appellant Elizabeth Santana, individually and as personal representative of the estate of Rojelio Santana, and as next friend of Diana Santana, Rojelio Santana, Jr., Marissa Santana, Pauline Santana, and Frederico Santana (hereinafter collectively referred to as "Appellant") raises twelve points challenging the trial court's summary judgments for Appellees, Arpin America Moving System, LLC ("AAMS") and Paul Arpin Van Lines, Inc. ("PAVL"). Appellant claims that the summary judgment evidence establishes that genuine issues of material fact exist on her claims against both AAMS and PAVL. For the reasons set forth below, we will affirm the trial court's summary judgment.
Rojelio "Rocky" Santana ("Rocky") was a commercial driver; on August 7, 2004, in the capacity of an independent contractor, he drove a commercial vehicle owned by AAMS and leased by PAVL,2 hauling household goods from Nesbit, Mississippi, to Dallas, Texas. Independent contract drivers like Rocky were permitted to hire "lumpers" to help them load and unload the trucks; the independent contract drivers were responsible for supervising and paying the "lumpers" they chose to hire. AAMS and PAVL maintain no contract or relationship with "lumpers" hired by the driver.
Rocky decided to hire two "lumpers," Alejandro Cisneros and Alejandro Ramirez, to assist him on the trip. Per AAMS policy, "lumpers" are not permitted to operate trucks under any circumstances. At some point during the return trip, Rocky permitted Ramirez—who did not possess a commercial driver's license—to drive the eighteen wheeler. AAMS and PAVL did not know Rocky had hired Cisneros and Ramirez as "lumpers" for the trip and did not authorize Ramirez to drive the truck. On August 7, 2004, while Ramirez was driving the truck, it struck a bridge support pillar; Rocky, Cisneros, and Ramirez were all killed.
First responders at the scene referred to the three victims as John Doe A, B, and C. The first responders all testified that John Doe A was driving; pictures of the victims taken at the scene of the accident were referred to in the depositions of the first responders and in the summary judgment affidavits of persons acquainted with Rocky and conclusively establish that Rocky was not John Doe A.3
Rocky's wife brought a wrongful death suit on her own behalf and on behalf of Rocky's minor children. Ultimately, the trial court granted summary judgments for AAMS and for PAVL on all of Appellant's claims against them. Appellant perfected this appeal, raising twelve points.4
Appellant pleaded causes of action against AAMS for negligence, negligence per se, res ipsa loquitur, negligent entrustment/negligent supervision, and gross negligence. Appellant pleaded causes of action against PAVL as a worker's compensation nonsubscriber for gross negligence under the "election of remedies" doctrine and for vicarious liability under the doctrines of respondeat superior, statutory employee, and apparent agency.
AAMS filed a no-evidence motion for summary judgment, claiming that no evidence exists to support the causation element of Appellant's negligence per se claims; that res ipsa loquitur is not a cause of action recognized in Texas; that no evidence of proximate cause exists concerning Appellant's negligence claims; that no evidence exists in Appellant's negligent entrustment claims that AAMS entrusted its vehicle to Ramirez and no evidence exists that AAMS knew Ramirez was an unlicensed, reckless driver; that no evidence exists that AAMS acted with the requisite mental state for gross negligence; and that no evidence exists that the doctrines of respondeat superior, actual agency or apparent agency, vice-principal, or statutory employee apply. AAMS contends that Rocky was an independent contractor and that no evidence to the contrary exists.
PAVL filed a no-evidence and a traditional motion for summary judgment. In its no-evidence motion, PAVL claimed that no evidence exists of the following elements of Appellant's claim for gross negligence: that PAVL was the common law or statutory employer of Rocky; that PAVL acted with gross negligence; and that any gross negligence by PAVL caused the accident. In its traditional motion for summary judgment, PAVL likewise claimed that the summary judgment evidence conclusively negates that PAVL was the common law or statutory employer of Rocky, that PAVL acted with gross negligence, and that any gross negligence by PAVL caused the accident.
After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied). We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
Less than a scintilla of evidence exists when the evidence is so weak that it does nothing more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to reach different conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A genuine issue of material fact is raised by presenting evidence on which a reasonable jury could return a verdict in the nonmovant's favor. Moore, 981 S.W.2d at 266; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S. Ct. 2505, 2513-14 (1986) ( Fed. R. Civ. P. 56).
A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); see Tex. R. Civ. P. 166a(b), (c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. IHS Cedars Treatment Ctr., 143 S.W.3d at 798. Summary judgment is proper when parties do not dispute the relevant facts. Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000).
When a party moves for summary judgment under both rules 166a(c) and 166a(i), we will first review the trial court's judgment under the standards of rule 166a(i). Ford Motor Co., 135 S.W.3d at 600. If the appellant failed to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether the appellee's summary judgment proof satisfied the less stringent rule 166a(c) burden. Id.
In portions of her first, second, third, fourth, fifth, ninth, and eleventh points, Appellant raises various arguments asserting that the trial court erred by granting summary judgment because the Federal Motor Carrier Safety Regulations5 ("FMCSR") doctrines of statutory employee, nondelegable duty, or vicarious liability apply. Appellees PAVL6 and AAMS argue that the summary judgment evidence conclusively established the inapplicablity of the FMCSR doctrines of statutory employee, nondelegable duty, and vicarious liability to the present facts because Rocky was an independent contractor and was not driving when the accident occurred and because Cisneros and Ramirez were not employees of either PAVL or AAMS.
The FMCSR define "employee" and "employer." The FMCSR define an "employee" as
any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.
49 C.F.R. § 390.5. The statutory definition of an "employer" under the FMCSR reads, "[A]ny person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that...
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