Swift Transp. Co. of Ariz., LLC v. Angulo

• Decision Date: 17 June 2013
• Docket Number: No. 12–1069.,12–1069.
• Citation: 716 F.3d 1127
• Parties: SWIFT TRANSPORTATION COMPANY OF ARIZONA, LLC, formerly known as Swift Transportation Co., Inc.; Lexington Insurance Company, Plaintiffs–Appellants v. Alfred F. ANGULO, Jr.; Barrett and Deacon, P.A., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

716 F.3d 1127

SWIFT TRANSPORTATION COMPANY OF ARIZONA, LLC, formerly known as Swift Transportation Co., Inc.; Lexington Insurance Company, Plaintiffs–Appellants

v.Alfred F. ANGULO, Jr.; Barrett and Deacon, P.A., Defendants–Appellees.

No. 12–1069.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 15, 2012.

Filed: June 17, 2013.

Timothy Oliver Dudley, argued, Danny R. Crabtree, on the brief, Little Rock, AR, for appellant.

Emmett B. Chiles, argued, Little Rock, AR, Walter B. Cox, James Ronald Estes, Jr., Fayetteville, AR, on the brief, for appellee.

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

RILEY, Chief Judge.

Filing this diversity action, 28 U.S.C. § 1332(a), Swift Transportation Company of Arizona, LLC (Swift) sued attorney Alfred F. Angulo, Jr. and the law firm Barrett and Deacon, P.A. (collectively, lawyers), alleging malpractice for failing to file a timely appeal of an adverse judgment in an Arkansas state court action. The district court ¹ granted summary judgment to the lawyers. We have appellate jurisdiction under 28 U.S.C. § 1291. Because the district court did not err in granting summary judgment, we affirm.

I. BACKGROUNDA. Factual Background ²

In the early morning hours of November 8, 2004, Joe Turner was driving a bread delivery panel truck south on U.S. Highway 425 south of Star City, Arkansas, when a semi-tractor trailer forced Turner off of the road. Turner was thrown from his vehicle. Rebecca Barnett, a Pine Bluff, Arkansas paramedic, and her rescue team partner responded and transported Turner to Drew Memorial Hospital. As a result of the accident, Turner suffered a closed head injury, numerous fractures and lacerations, and tetraplegia. He is principally wheelchair dependent and has only limited use of his right arm.

On the morning of the accident, Angela Merritt Pryor was looking out her kitchen window when she heard, then observed “an eighteen wheeler going fast,” in a line with at least six other vehicles “all going at a high rate of speed.” Pryor reported hearing a “loud boom” just after seeing these vehicles, and she noted the time to be approximately 6:15 a.m. After approximately an hour and a half, Pryor went to the scene of the accident. Pryor told a state trooper she had seen a truck and heard a noise that morning, but did not know whether it was important to the accident investigation. Pryor identified the truck as a Swift truck. Pryor subsequently clarified she had seen a stylized “S” on the side of the vehicle's trailer, but no markings on the tractor unit. Pryor was confident—“without a doubt”—it had been a Swift truck she observed before the accident.

At the scene of the accident and twice at the hospital, Turner reportedly stated a “Swift truck” forced him from the road, causing the accident. Kimberly Irons, a Star City resident who arrived on the scene shortly after the crash, remarked that Turner asked her to call Turner's wife because “a Swift truck ran him off the road.” Turner also uttered he was twenty-one years old, although he was actually fifty-six, “and that he wanted to go deer hunting.”

Barnett reported that, in the ambulance on the way to the hospital, Turner was disoriented and “babbling.” Turner mentioned there had been another truck, but did not identify it as a Swift truck. At the hospital, approximately thirty or forty minutes after Barnett had taken Turner from the accident scene, Barnett overheard Turner ask a nurse about “[t]he Swift truck,” and tell the nurse “[a] Swift truck run me off the road.”

James Gosney, Turner's brother-in-law, visited Turner at the hospital. Gosney observed Turner was “conscious and in serious condition,” and was “in pain,” but he “did not appear to be unsure about what he was talking about.” Turner told Gosney “I run off the road ‘cause there was a Swift truck in my lane of traffic, and I was fixin’ to hit it head on so I went off the road and that's when I hit it, the culvert.” Turner also told Gosney “I'm going to miss my deer hunting.” After speaking with Turner in the hospital, Gosney called Swift later in the week to report that a Swift truck had caused Turner's accident and that Turner had been badly injured.

As Turner began to recover from his injuries, Turner recalled that a semi-truck had been “on [his] side of the road.” However, he did not recall seeing any markings identifying the vehicle as a Swift truck, and he did not remember telling anyone after the accident that the truck had been a Swift truck.

Swift tractors are equipped with satellite tracking devices. Swift's onboard tracking system sends a location signal to the Swift computers on an hourly basis if there is no other communication between dispatch and the truck. Unless Swift takes steps to preserve the tracking data, this data is automatically deleted after seven days. After hearing about the accident from Gosney, Devon Daricek, a Swift security officer, ran a search tracking the location of Swift tractors at the time of the incident.

Swift did not preserve the electronic tracking information, so the only record of the search was a computer printout prepared by Daricek. The printout contained a table with five entries corresponding to five Swift vehicles. The “Proximity Reference” column listed “Little Rock, AR.” ³ The date column, presumably recording the time the data was gathered, contained entries ranging from “04:23” to “05:11” on November 8, 2004. The following was printed below the table: “vehicles were found within 40 miles of the reference location.” The printout did not identify the time zone, show whether the time was a.m. or p.m., or indicate the “reference location” used for the search. Below the printed information were several handwritten annotations, including “40 mile Radius 11/08/04 0400–11/08–04 0600” and “615A central time or 515A Swift time.”

B. Procedural History

1. State Court Action

In 2005, Turner filed suit against Swift in the Circuit Court of Drew County, Arkansas (trial court). Swift retained Angulo, who later became an employee of Barrett and Deacon, to defend the company. The first trial of the case was in 2007 and resulted in a hung jury. The case was retried in May 2008.

During discovery, Swift initially failed to disclose the satellite tracking printout, telling Turner the data had not been preserved. In October 2005, Swift disclosed the printout.

Dennis Ritchie, a Swift safety advisor, testified Swift sometimes used a twenty-mile radius search parameter when conducting satellite vehicle tracking. Ritchie did not conduct the search at issue here, but testified he believed a forty-mile radius was used, even though this broader search radius might deviate from standard practices. Ritchie testified it was possible for a Swift truck to pass through the target area undetected if a twenty-mile radius were used, but a forty-mile radius would be more likely to detect any Swift vehicles in the area.

Swift initially identified Lloyd Telking, Daricek's supervisor, as the employee who conducted the computer search. At trial, Daricek testified that he, not Telking, actually conducted search. Daricek claimed he used a forty-mile radius with Star City at the center. He testified it was not possible to add or remove vehicles from the search, so any vehicles in the area at the time of the accident would have shown up on the printout. Daricek testified the printout revealed no Swift tractors that were driving north on Highway 425 at the time of the accident. He also testified other trucking companies would use Swift trailers, and Swift had no way of tracking trailers that were not used by Swift drivers driving Swift tractors.

Swift also informed Turner that an “unknown person” had contacted Swift after Turner's accident. On August 30, 2005, Turner advised Swift that Gosney made that call. Swift later admitted Swift's records revealed the call had come from Gosney. Ritchie stated it was Swift's standard procedure to identify all informants as “unknown,” even when Swift was aware of the informant's identity.

Pryor testified she saw a Swift trailer just before hearing the accident. Barnett, Irons, and Gosney each testified, over Swift's hearsay objection, to what Turner said at various times after the accident about a Swift truck. On cross-examination, Turner responded as follows:

Q: And you couldn[']t make out any markings on that truck, correct?

A: I do not remember any markings.

Q: You didn't say [previously under oath] you didn't remember; you said you couldn't make them out.

A: Couldn't make them out, same thing.

....

Q: Can you identify that truck that you saw out there that morning as a Swift truck?

A: I cannot tell you that was a Swift truck. I was only looking at the headlights and that truck was coming straight at me.

Turner also testified he had “seen trucks that looked like” an image of a white tractor-trailer with a stylized logo of the word “Swift” prominently displayed above the windshield. Another image, this one provided by Swift and entered into evidence without objection, provided a close-up image of a “Swift” logo printed on the aerodynamic “air foil” above the windshield of the tractor, similar to the image identified by Turner.

Dr. Gary Souheaver, a clinical neuropsychologist and brain injury expert, testified for Turner. Dr. Souheaver explained that as a result of traumatic brain injury, a person might forget specific details of events before that person would forget the event itself. When asked to evaluate the statements of Barnett, Irons, and Gosney about Turner's post-accident identification of the truck, Dr. Souheaver opined “based on the fact that there were three separate occasions, three separate individuals, and three separate times, the statements I would judge to be very reliable.” Dr. Souheaver clarified that he was not suggestingthe jury should believe Barnett, Irons, and Gosney.

Turner presented a demonstrative exhibit, an animation purporting to recreate...