Scott v. Milosevic

• Citation: 372 F.Supp.3d 758
• Decision Date: 12 February 2019
• Docket Number: No. C17-4004-LTS (lead case),No. C17-4022-LTS,C17-4004-LTS (lead case),C17-4022-LTS
• Parties: Barbara SCOTT, et al., Plaintiffs, v. Ivan MILOSEVIC, et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

372 F.Supp.3d 758

Barbara SCOTT, et al., Plaintiffs,

v.Ivan MILOSEVIC, et al., Defendants.

No. C17-4004-LTS (lead case)

No. C17-4022-LTS

United States District Court, N.D. Iowa, Western Division.

Signed February 12, 2019

Brian P. Galligan, Galligan & Reid PC, Des Moines, IA, Lindsy Jo Lopez, Pro Hac Vice, Tad Thomas, Pro Hac Vice, Thomas Law Offices PLLC, Louisville, KY, for Plaintiffs.

Jason D. Bring, John C. Gray, Heidman Law Firm PLLC, Sioux City, IA, for Defendants Ivan Milosevic, US Expediters Inc.

Michael Lawton Moran, Engles Ketcham Olson & Keith PC, Omaha, NE, David L. LaPorte, Pro Hac Vice, Law Office of David L. LaPorte PC, Flossmoor, IL, for Defendant Sirius Air Logistics.

Kellen Brooks Bubach, R. Todd Gaffney, Finley Alt Smith Scharnberg Craig Hilmes & Gaffney, PC, Des Moines, IA, Brian L. Yung, Klass Law Firm LLP, Sioux City, IA, John Lester Walker, Pro Hac Vice, Ted L. Perryman, Pro Hac Vice, Roberts Perryman PC, St. Louis, MO, for Defendant Forward Air, Inc.

ORDER

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This matter is before me on a motion (Doc. No. 91) for summary judgment filed by defendant Forward Air, Inc. (Forward). Plaintiffs Gary, Nicholas and Ryan Rohlfs (the Rohlfs) have filed a resistance (Doc. No. 102) and Forward has filed a reply. Doc. No. 110. The Rohlfs' also filed a notice (Doc. No. 112) of supplemental authority. I find that oral argument is not necessary.¹ See N.D. Iowa L.R. 7(c).

II. PROCEDURAL BACKGROUND

This case arises out of a fatal three-vehicle crash on Highway 175 west of Lake View, Iowa, on December 24, 2016. Ivan Milosevic was driving a semi-truck westbound when he crossed the center line into oncoming traffic, striking an eastbound vehicle occupied by Gary and Sharon Rohlf. This collision caused a second collision between the Rohlf vehicle and a vehicle occupied by Barbara Scott and Jeanette Fertig. Sharon Rohlf died as a result of the collision, while Gary Rohlf and Barbara Scott sustained injuries. On January 13, 2017, Barbara and Everett Scott (the Scotts) filed a complaint (Doc. No. 1) alleging negligence and vicarious liability against defendants Milosevic and U.S. Expediters, Inc. (Expediters).

On April 6, 2017, the Rohlfs filed a complaint alleging negligence, vicarious liability and negligent hiring, training and supervision against Milosevic and Expediters. Doc. No. 1 in C17-4022-LTS. The two cases were consolidated on June 8, 2017. Doc. No. 10. Subsequently, the Scotts and the Rohlfs amended their complaints to add defendants Sirius Air Logistics (Sirius) and Forward.² Doc. Nos. 60, 61. In Division V of the Rohlfs' Second Amended Complaint, they list various theories of alleged negligence on Forward's part. Doc. No. 61 at 11.

Milosevic and Expediters answered (Doc. Nos. 62, 63) the amended complaints while Sirius and Forward filed motions to dismiss for lack of personal jurisdiction, which were denied. Doc. No. 78. Sirius and Forward answered on May 30, 2018. Doc. Nos. 81, 82. The present motion for summary judgment was filed November 23, 2018. This matter is scheduled for a jury trial beginning April 22, 2019.

III. SUMMARY JUDGMENT STANDARDS

Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A material fact is one "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, "the substantive law will identify which facts are material." Id. Facts that are "critical" under the substantive law are material, while facts that are "irrelevant or unnecessary" are not. Id. "An issue of material fact is genuine if it has a real basis in the record," Hartnagel v. Norman , 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ), or "when ‘a reasonable jury could return a verdict for the nonmoving party’ on the question," Woods v. DaimlerChrysler Corp. , 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). Evidence that only provides "some metaphysical doubt as to the material facts," Matsushita , 475 U.S. at 586, 106 S.Ct. 1348, or evidence that is "merely colorable" or "not significantly probative," Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505, does not make an issue of material fact genuine. Put another way, "[e]vidence, not contentions, avoids summary judgment." Reasonover v. St. Louis Cnty. , 447 F.3d 569, 578 (8th Cir. 2006) (citation omitted). The parties "may not merely point to unsupported self-serving allegations." Anda v. Wickes Furniture Co. , 517 F.3d 526, 531 (8th Cir. 2008).

As such, a genuine issue of material fact requires "sufficient evidence supporting the claimed factual dispute" so as to "require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505 (quotations omitted). The party moving for entry of summary judgment bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel , 953 F.2d at 395 (citing Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods , 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. Id. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex , 477 U.S. at 322, 106 S.Ct. 2548.

To determine whether a genuine issue of material fact exists, I must view the evidence in the light most favorable to the nonmoving party. Matsushita , 475 U.S. at 587-88, 106 S.Ct. 1348. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, "because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses." Kammueller v. Loomis, Fargo & Co. , 383 F.3d 779, 784 (8th Cir. 2004) (citing Quick v. Donaldson Co. , 90 F.3d 1372, 1376-77 (8th Cir. 1996) ). Instead, "the court's function is to determine whether a dispute about a material fact is genuine." Quick , 90 F.3d at 1377.

IV. RELEVANT FACTS

Unless otherwise noted, the following facts are undisputed:

A. The Parties

Plaintiff Gary Rohlf was a resident of Odebolt, Iowa, and was married to Sharon Rohlf at the time of the accident. Doc. No. 61 at ¶¶ 2-3. Nicholas and Ryan Rohlf are residents of Iowa and are the children of Gary and Sharon. Id. at ¶¶ 4-5. Sharon died as a result of the motor-vehicle accident on December 24, 2016, that involved Milosevic and a second passenger car.

Milosevic was driving a 2007 Volvo semi-truck at the time of the collision. Doc. Nos. 60 at ¶¶ 5-6; 61 at ¶¶ 19. Sirius, an Illinois corporation with its principal place of business in Brookfield, Illinois, owned the semi-truck and employed Milosevic. Doc. No. 66 at 20. Sirius is not a motor carrier—it does not have authorization from the Federal Motor Carrier Safety Administration (FMCSA) to "engage[ ] in the transportation of goods or passengers for compensation." Id. , see also 49 C.F.R. 390.5 (defining for-hire motor carrier). Instead, Sirius enters leases as defined in 49 C.F.R. § 376.2(e), through which it grants the use of its equipment, with a driver, for a specified period to an authorized motor carrier. Doc. No. 66 at 20.

Expediters, an Illinois corporation with its principal place of business in Countryside, Illinois, is an authorized motor carrier. Doc. No. 60 at ¶ 2; Doc. No. 61 at ¶ 6. On November 11, 2016, Sirius and Expediters entered into a lease agreement whereby Expediters could use the semi-truck, operated by Milosevic, for hauling freight in interstate commerce. Doc. No. 66 at 21-31. At the time of the accident, Expediters was shipping freight on behalf of Forward, a Tennessee corporation. Forward is a licensed transportation broker under 49 U.S.C. § 13904. Doc. No. 91-3 at 11. As a transportation broker, Forward does not own or operate any motor vehicles. Id. at 6. Instead, Forward arranges for the transportation of goods between a shipper and consignee. Id. at 6.

B. Forward's Selection of Expediters as a Motor Carrier

Forward submitted the affidavit of Michael Casey, its Vice President of Safety, to describe how Forward qualifies motor carriers when it arranges for the transportation of goods. See Doc. No. 91-3 at 5-10. When selecting a motor carrier, Forward uses the following policy:

(1) a carrier must have current motor carrier authority from the United States Department of Transportation (USDOT), (2) the carrier must have public liability insurance in amounts that exceed the federal financial responsibility limits for motor carriers, and (3) the motor carrier must not have an "Unsatisfactory" safety rating.³ In addition, the motor carrier must sign a Broker-To-Carrier Agreement (BCA) with Forward Air, Inc.

Id. at 6.

Forward further requires that the Carrier maintain certain safety requirements and incorporates this requirement into the "Carrier's Representations and Warranties" section of the...