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Puga v. RCX Solutions, Inc.

Neutral As of: April 20, 2019 11:40 PM Z
Puga v. RCX Sols., Inc.
United States Court of Appeals for the Fifth Circuit
April 17, 2019, Filed
No. 17-41282

Reporter
2019 U.S. App. LEXIS 11229 *
ALEXANDRO PUGA; NORMA PUGA, Plaintiffs – Appellees v. RCX SOLUTIONS, INCORPORATED, Defendant – Appellant
Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
Prior History: [*1] Appeal from the United States District Court for the Southern District of Texas.

Puga v. RCX Sols., Inc., 914 F.3d 976, 2019 U.S. App. LEXIS 3346 (5th Cir. Tex., Feb. 1, 2019)

CARL E. STEWART, Chief Judge:
IT IS ORDERED that the pending joint motion for clarification of this court’s opinion is GRANTED and our prior panel opinion, Puga v. RCX Sols., Inc., 914 F.3d 976 (5th Cir. Feb. 1, 2019), is WITHDRAWN. The following opinion is SUBSTITUTED therefor.
RCX Solutions, Incorporated is a licensed motor carrier that contracted with a driver, Ronald Brown, to transport a load across Texas. During his drive, Brown crossed the median into oncoming traffic and crashed into Alexandro Puga’s truck, leaving Puga with significant injuries. The Pugas sued. After a [*2] week-long trial with expert testimony, a jury found RCX liable for Brown’s negligence and awarded Mr. Puga a variety of damages and his wife, Norma Puga, loss of consortium damages.
RCX now launches a multitude of challenges at the district court’s handling of the case. RCX claims that the district court wrongly interpreted the Federal Motor Carrier Safety Regulations because it failed to take account of regulatory amendments. RCX contends that this misinterpretation subjected RCX to liability where none should exist. RCX also argues that the district court used faulty jury instructions, improperly allowed the Pugas’ expert to testify, and upheld an excessive jury award for Mrs. Puga’s loss of consortium. Finally, RCX claims that the district court erred in not applying a settlement credit to the final damages award. After reviewing the record, we AFFIRM the district court’s rulings with respect to all issues except (1) Mrs. Puga’s award for past consortium damages and (2) the settlement credit. We REVERSE and REMAND to the district court to calculate the appropriate amount of past consortium damages and settlement credit amount, and then modify its final judgment accordingly.
I.
Sunset [*3] Transportation entered into a brokerage account with L’Oreal. In its role as a broker, Sunset was responsible for choosing a motor carrier for individual L’Oreal shipments on a load-by-load basis. Sunset chose RCX to transport the L’Oreal load involved in the accident. RCX did not have a contract with L’Oreal.
When it came time for RCX to transport L’Oreal’s load, RCX ran into equipment problems. So RCX contacted Ronald Brown to transport the load. Conveniently, Brown already had an RCX trailer in his possession. RCX had leased the trailer from another company, Xtra Lease, and RCX assumed responsibility for the trailer’s operation under the lease agreement. The bill of lading listed RCX as the carrier for the load. Brown also signed the bill of lading, apparently on behalf of RCX.1
While transporting the load, Brown swerved across the median into oncoming traffic, hitting Alexandro Puga’s truck. Brown did not survive the accident. Mr. Puga suffered a variety of injuries, including burns on large parts of his body and fractures in his spine, legs, pelvis, and fingers. Mr. Puga was still undergoing treatment and surgeries two-and-a-half years after the accident.
Following the accident, Mr. [*4] Puga and his wife, Norma, sued RCX, About Tyme, and Xtra Lease, claiming that Brown’s negligent driving caused Mr. Puga’s injuries. Prior to trial, RCX filed a motion under Rule 50(a) of the Federal Rules of Civil Procedure, requesting the court to enter judgment as a matter of law because the Pugas lacked sufficient evidence for a jury to find that (1) Brown was employed by RCX and (2) Brown acted negligently when the crash occurred. The district court denied the motion.
At trial, the Pugas designated Trooper Andrew Smith as an expert witness. Smith was the first responder to the accident and saw the explosion from the accident from afar. RCX sought to exclude Smith’s testimony regarding the cause of the accident. The district court denied RCX’s motion.
The trial concluded with a jury verdict in favor of the Pugas. The jury determined that RCX was “using motor vehicle(s) it did not own to transport property under an arrangement with Ronald Brown.” As a result, the jury awarded the Pugas a variety of damages. The jury specifically awarded Mrs. Puga damages for loss of consortium, $1.6 million for past loss of consortium and $1.8 million for future loss of consortium.
After the trial, RCX filed a renewed Rule 50(b) motion, again requesting judgment [*5] as a matter of law, this time because amendments to Federal Motor Carrier Regulations precluded the jury from finding for the Pugas. The district court again denied the motion and entered judgment in favor of the Pugas. RCX now appeals.
II.
RCX first argues that federal law does not allow courts to hold motor carriers liable for the acts of independent contractors, a concept both parties refer to as the statutory-employee doctrine. RCX raised this argument for the first time in its post-verdict Rule 50(b) motion.
HN1[ ] Rule 50(a) of the Federal Rules of Civil Procedure allows a party to move for judgment as a matter of law at trial before the jury renders its verdict. Under Rule 50(a), the movant must “specify the judgment sought and the law and facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2). If the pre-verdict motion is denied, then the party can renew its motion under Rule 50(b). But the renewed Rule 50(b) is “technically only a renewal of the [Rule 50(a) motion for judgment as a matter of law].” Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985) (internal quotation marks and citation omitted). As a result, courts prohibit parties from using a Rule 50(b) motion to “assert a ground that was not included in the [original] motion.” Id.; see also In re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) (“By not raising this argument at trial or in its Rule 50(a) motion, [the appellant] has waived its right to bring [*6] a Rule 50(b) motion on this ground.”); Arsement v. Spinnaker Expl. Co., 400 F.3d 238, 247 (5th Cir. 2005) (“If a party fails to raise an issue in its Rule 50(a)(1) motions at trial, it may not do so in its post-trial Rule 50(b) motion.”) (citation omitted); 9B Charles Alan Wright & Arthur K. Miller, Federal Practice and Procedure § 2537 (3d ed. 2018) (“[T]he district court only can grant the Rule 50(b) motion on the grounds advanced in the preverdict motion, because the former is conceived of as only a renewal of the latter.”).
This rule makes sense in light of Rule 50(b)’s purposes. HN2[ ] Rule 50(b) is designed to prevent a litigant from ambushing both the district court and opposing counsel after trial. See Dimmitt Agri Indus., Inc. v. CPC Int’l. Inc., 679 F.2d 516, 521 (5th Cir. 1982) (“The rationale for the rule that a [Rule 50(b) motion] cannot assert a ground not included in a motion for directed verdict is obviously to avoid ‘ambushing’ the trial court and opposing counsel.”) (internal quotation marks and citation omitted); Quinn v. Sw. Wood Prods., Inc., 597 F.2d 1018, 1025 (5th Cir. 1979) (“When a claimed deficiency in the evidence is called to the attention of the trial judge and of counsel before the jury has commenced deliberations, counsel still may do whatever can be done to mend his case. But if the court and counsel learn of such a claim for the first time after verdict, both are ambushed and nothing can be done except by way of a complete new trial. It is contrary [*7] to the spirit of our procedures to permit counsel to be sandbagged by such tactics or the trial court to be so put in error.”). By requiring a litigant to raise all arguments in its initial Rule 50(a) motion, the trial court is able to “re-examine the question of evidentiary insufficiency as a matter of law if the jury returns a verdict contrary to the movant,” and opposing counsel is alerted to any “insufficiency before the case is submitted to the jury,” giving the opposing party a chance to cure any defects in its legal theories or proof should the motion have merit. Scottish Heritable Tr., PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996) (internal quotation marks and citation omitted).
Here, RCX did not argue that the statutory-employee doctrine was overruled in its Rule 50(a) motion, precluding it from raising the argument in its Rule 50(b) motion. In its oral Rule 50(a) motion, RCX argued that judgment as a matter of law was appropriate because the record contained insufficient evidence to determine that (1) Brown was a statutory employee of RCX and (2) Brown acted negligently when the accident occurred. Even in its earlier summary judgment briefing, RCX only attacked the evidentiary bases for determining that Brown was an employee of RCX. At no time prior to its Rule 50(b) motion did RCX argue that [*8] the entire statutory-employee doctrine is now defunct. By failing to raise this argument in its initial Rule 50(a) motion, RCX waived it.2 See McCann v. Tex. City Ref., Inc., 984 F.2d 667, 672-73 (5th Cir. 1993) (denying a post-judgment challenge when the party’s argument differed from its 50(a) motion); Allied Bank-West., N.A. v. Stein, 996 F.2d 111, 115 (5th Cir. 1993) (overturning grant of judgment as a matter of law on different ground than that in the initial directed verdict); Sulmeyer v. Coca Cola Co., 515 F.2d 835, 846 (5th Cir. 1975) (holding that plaintiff could not receive post-judgment relief on claims it did not raise at trial or in its original Rule 50 motion).
Accordingly, we AFFIRM the district court’s decision to deny RCX’s Rule 50(b) motion.
III.
RCX next argues that the district court used improper jury instructions. More specifically, RCX argues that the district court’s jury instructions were incorrect because they did not require the jury to find that RCX met the definition of “motor carrier.”
HN3[ ] This court reviews jury instructions under a two-prong standard of review. “First, the challenger must demonstrate that the charge as a whole creates substantial and ineradicable doubt whether” the instructions “properly guided” the jury “in its deliberations.” Pelt v. U.S. Bank Tr. Nat. Ass’n, 359 F.3d 764, 767 (5th Cir. 2004) (quoting Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997)). Second, even if the court finds that the jury instructions were erroneous, it will not reverse if it determines, [*9] “based upon the entire record, that the challenged instruction could not have affected the outcome of the case.” Id. (quoting Sawyer, 120 F.3d at 1315).
RCX’s arguments do not raise any doubt about the district court’s jury instructions.3 The district court instructed the jury to determine whether RCX was “using motor vehicle(s) it did not own to transport property under an arrangement with Ronald Brown.” RCX correctly points out that this instruction does not follow the federal definition of motor carrier. The federal definition of a motor carrier is “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). But this definition of motor carrier is overbroad for this case because it does not distinguish between (1) a motor carrier using its own equipment and (2) a motor carrier using leased equipment. That distinction matters.
The relevant federal regulations only apply to motor [*10] carriers who use leased equipment. As Section 14102 makes clear, HN4[ ] the Secretary of Transportation can only issue regulations requiring a motor carrier to “have control of and be responsible for” how employees operate equipment if the motor carrier “uses motor vehicles not owned by it to transport property under an arrangement with another party.” 49 U.S.C. § 14102(a) (emphasis added). The district court rightly based its jury instructions on this section because it excludes carriers using their own trucking equipment. Without a finding that the motor carrier used a leased vehicle, the regulations would not apply.
RCX’s arguments to the contrary are unconvincing. RCX first argues that the instructions did not require the jury to find that RCX was acting as a motor carrier. Second, and relatedly, RCX argues that the instructions are so broad that they wrap in brokers, as well as motor carriers. We disagree. HN5[ ] The main difference between a motor carrier and a broker is the actual operation of the leased equipment. This difference stands out when looking at the definitions of motor carrier and broker in the Act. While a broker is responsible for “providing, or arranging for, transportation by motor carrier,” 49 U.S.C. § 13102(2), a motor carrier [*11] provides “motor vehicle transportation,” 49 U.S.C. § 13102(14). Put briefly, a motor carrier transports, and a broker provides a motor carrier. Because the jury here determined that RCX used motor vehicles to transport property, it necessarily determined that RCX was a motor carrier. Consequently, the jury also necessarily determined that RCX did not act as a broker who merely provided access to a motor carrier.
In sum, the district court did not err. On the contrary, the district court closely examined the statute, avoided the obvious, overbroad definition of motor carrier, and picked out the correct, limited definition. We AFFIRM the district court’s jury instructions.
IV.
RCX next challenges the district court’s decision to admit State Trooper Smith as an expert witness on accident investigation. According to RCX, Smith’s opinion was irrelevant because he testified that he (1) could not find any defects on the road, (2) could not find any skid marks on the road, (3) did not determine how fast Brown was driving, and (4) did not know the weight of the trailer or its contents.4
HN6[ ] A trial court’s decision to admit expert evidence is reviewed for abuse of discretion. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007) (citation omitted). The trial judge has “wide [*12] latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (internal quotation marks and citation omitted); see also Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 330 (5th Cir. 2010). A manifest error is one that “is plain and indisputable, and that amounts to a complete disregard of the controlling law.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (internal quotation marks and citation omitted); see also SEC v. Life Partners Holdings, Inc., 854 F.3d 765, 775 (5th Cir. 2017).
HN7[ ] Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony and reports. When evaluating expert testimony, the overarching concern is generally whether the testimony is relevant and reliable. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). To be reliable, expert testimony must “be grounded in the methods and procedures of science and . . . be more than unsupported speculation or subjective belief.”5 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (internal citation omitted). To be relevant, the expert’s “reasoning or methodology [must] be properly applied to the facts in issue.” Id. (internal citation omitted).
HN9[ ] When performing this analysis, the court’s main focus should be on determining whether the expert’s opinion will assist the trier of fact. See Peters v. Five Star Marine Serv., 898 F.2d 448, 449 (5th Cir. 1990) (citing Fed. R. Evid. 702 advisory committee’s notes (1972)). Assisting the trier of fact means “the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) (internal quotation marks and citation omitted). As this court has noted, however, the “helpfulness threshold is low: it is principally . . . a matter of relevance.” EEOC v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 459 n.14 (5th Cir. 2013) (en banc) (internal quotation marks and citations omitted).
HN10[ ] As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility. See Rock v. Arkansas, 483 U.S. 44, 61, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). Particularly in a jury trial setting, the court’s role under Rule 702 is not to weigh the expert testimony to the point of supplanting the jury’s fact-finding role—the court’s role is limited to ensuring that the evidence in dispute is at least sufficiently reliable and relevant to the issue so that it is appropriate for the jury’s consideration. [*14] See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391-92 (Fed. Cir. 2003). At no point should the trial court replace “the adversary system.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002). As the Supreme Court explained, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596; see also Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002). While the district court must act as a gatekeeper to exclude all irrelevant and unreliable expert testimony, “the rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s notes (2000) (internal citations omitted).
Here, RCX only challenges the relevance of Smith’s opinion.6 But its arguments are not persuasive. The district court did not abuse its discretion in allowing Smith to offer an expert opinion on the cause of the accident—Smith considered an appropriate amount of physical evidence at the scene of the crime to offer his opinion, and RCX had ample opportunity to show the jury any flaws in his opinion.
No Fifth Circuit case applies Rule 702 and Daubert to an accident investigator.7 But HN11[ ] the majority of in-circuit district courts choose to admit accident investigators as experts.8 District courts use a contextual analysis when making this determination, [*15] looking to see if the investigating officer bases his opinion on a sufficient amount of physical evidence from the accident.
For example, in Stevens, the district court allowed an officer to testify based on “the position of Defendants’ trailer after the accident, the tire marks visible at the scene, and his conversation at the scene with . . . the driver of Plaintiffs’ tractor-trailer.” Stevens, 2016 U.S. Dist. LEXIS 192461, 2016 WL 9244669, at *4. Another court allowed an expert to testify based on his “his accident report, some photographs and his notes.” Vigil, 2007 U.S. Dist. LEXIS 72785, 2007 WL 2778233, at *4. Yet another court allowed an investigating officer to testify as an expert because, even though he “did not take any measurements or photographs, or speak to any witnesses to the accident, he did personally survey the accident scene, talk to the other officers on the scene, and subsequently reviewed photographs of the scene.” Main, 2011 U.S. Dist. LEXIS 157814, 2011 WL 11027844, at *4. The only case to exclude an expert involved markedly different facts. In that case, the officer could not determine which lane the driver was in, expressed doubts about his qualifications, [*16] and could not say with any certainty whether the defendant caused the accident. Koenig, 2018 U.S. Dist. LEXIS 3591, 2018 WL 358307, at *5.
Here, Smith considered numerous facts and did not state that he was speculating about the cause of the accident. Smith was driving some distance behind Brown when the accident occurred and saw it happen from afar. He found wet, dark conditions. He determined which lane Brown was using. He determined that Brown was talking on his cell phone. He examined marks in the median showing the path of Brown’s truck. He took photographs of the scene. He spoke to witnesses. He determined that Brown hydroplaned based on skid marks. He determined based on experience and training that Brown must have been driving too fast or used faulty evasive maneuvers to cross the median and end up on the other side of the road. He also relied on an accident reconstruction put together by another expert. Smith also admitted on cross-examination that he did not examine Brown’s truck, the brakes, the weight of the truck, or attempt to estimate his speed. But he stuck to his opinion that Brown must have been driving too fast for the conditions or taken a faulty evasive maneuver.
In sum, Smith’s opinion was based on a multitude of facts. [*17] It did not take into account every possible explanation for the accident, and some measurements were missing. But he was the closest to the scene when the accident happened, observed the conditions on the road, knew Brown was talking on the phone, and looked at various tire markings in the median and on the pavement. Numerous district courts have allowed an investigating officer to testify as an expert based on less. If Smith missed any important facts, the oversight should go to the weight of his opinion, not its admissibility. We AFFIRM the district court’s decision to allow Smith to testify as an expert witness on causation.
V.
Next, RCX argues that the district court erroneously affirmed the jury’s award of consortium damages to Mrs. Puga.
HN13[ ] This court reviews the district court’s decision to deny a motion for a new trial or remittitur for abuse of discretion.9 Salinas v. O’Neill, 286 F.3d 827, 830 (5th Cir. 2002) (“We review denial of remittitur for abuse of discretion”); Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“The decision to grant or deny a motion for new trial or remittitur rests in the sound discretion of the trial judge; that exercise of discretion can be set aside only upon a clear showing of abuse”); Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 539, 541 (5th Cir. 1985) (“The standard of review of the denial of such a motion is whether [*18] the district court abused its discretion.”).
HN15[ ] The Supreme Court of Texas defines loss of consortium as the loss of companionship, emotional support, love, felicity, and sexual relations necessary to a successful marriage. Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1089 (5th Cir. 1991) (citing Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex. 1978)). Damages for loss of consortium are non-pecuniary damages, which “do not require certainty of actual monetized loss.” Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014). They are, instead, “measured by an amount that a reasonable person could possibly estimate as fair compensation.” Id. (internal quotation marks and citation omitted).
HN16[ ] While “translating the subjective nature of this loss into monetary terms” is difficult, Texas courts trust “the ability of the jury to calculate an appropriate award based on the evidence.” Id. at 1089 (citing P.T. & E. Co. v. Beasley, 698 S.W.2d 190, 196 (Tex. App.—Beaumont 1985)); Whittlesey, 572 S.W.2d at 667 (“[T]he issue generally must be resolved by the impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.” (internal quotation marks and citation omitted)). Even so, this trust is limited—juries cannot simply pull a number out of a hat. All damages must be tied to some evidence. Enright v. Goodman Distrib., Inc., 330 S.W.3d 392, 403 (Tex. App.—Houston [14th Dist.] 2010) (citing First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—Austin 1993, writ denied)). Direct evidence, however, is not required. A jury can infer loss of [*19] consortium damages “from [indirect] evidence showing the nature and extent of a spouse’s injuries.” Glasscock, 946 F.2d at 1090.10 When considering indirect evidence, juries can rely on “(1) the nature of the marital relationship prior to the spouse’s injury, (2) the deterioration of the marital relationship following the injury, and (3) the extent and duration of the spouse’s injuries.” Id. (citing Whittlesey, 572 S.W.2d at 667; Monsanto Co. v. Johnson, 675 S.W.2d 305, 312 (Tex. App.—Houston [1st Dist.] 1984)).
HN17[ ] When determining the excessiveness of a jury verdict, courts “must review each case on its own facts.” Moore v. Angela MV, 353 F.3d 376, 384 (5th Cir. 2003) (citing Winbourne v. E. Airlines, Inc., 758 F.2d 1016, 1018 (5th Cir. 1984)). Past verdicts can “provide an objective frame of reference, but they do not control our assessment of individual circumstances.” Wheat v. United States, 860 F.2d 1256, 1259-60 (5th Cir. 1988). If an award “exceeds the bounds of any reasonable recovery, we must suggest a remittitur ourselves or direct the district court to do so.” Caldarera, 705 F.2d at 784 (internal citation omitted).
HN18[ ] This court uses the “maximum recovery rule” to determine whether an award is excessive. Under the maximum recovery rule, this court “will decline to reduce damages where the amount awarded is not disproportionate to at least one factually similar case from the relevant jurisdiction.” Lebron, 279 F.3d at 326 (internal citations and quotations omitted). We measure disproportionality by applying a percentage enhancement [*20] to past similar awards. This enhancement is 50% for jury trials. See Salinas, 286 F.3d at 831 & n.6 (noting 50% enhancement has been applied only in jury trials); see also Moore, 353 F.3d at 384. Refusing to overturn jury awards that are within 150% of the highest comparable award prevents the court from substituting its own opinion for that of a jury. The relevant jurisdiction for purposes of the maximum recovery rule “is the state providing the substantive law for the claim.” Vogler, 352 F.3d at 156. Here, the relevant jurisdiction consists of Texas loss of consortium cases and “Fifth Circuit cases applying Texas [loss of consortium] law.” Id.
The jury awarded Mrs. Puga $1.8 million for her future loss of consortium and $1.6 million for her past loss of consortium. Applying the maximum recovery rule, neither award is clearly excessive.
The award for future loss of consortium falls within this court’s 50% multiplier. The highest decision we found awarded a wife $1 million for loss of future consortium in a case where the husband did not die.11 Reeder v. Allport, 218 S.W.3d 817, 820 (Tex. App.—Beaumont 2007) (affirming a jury’s award of “$1,000,000 for future loss of consortium.”); accord Lebron v. United States, 279 F.3d 321, 327 (5th Cir. 2002) (basing a maximum recovery rule finding in a loss-of-consortium case on the “the highest award” the court could find). That verdict [*21] was rendered in 2007 dollars. Accounting for inflation, that award is over $1.2 million in 2018 dollars.12 Cf. Ledet v. Smith Marine Towing Corp., 455 F. App’x 417, 423 (5th Cir. 2011) (unpublished) (accounting for inflation when applying the maximum recovery rule to a prior jury verdict). The jury’s $1.8 million verdict falls within 150% of the prior award over $1.2 million.
The parties did not point us to a factually similar case that specifically granted past loss of consortium damages.13 See Vogler, 352 F.3d at 156-57, 157 n.7 (finding that prior cases were not factually similar when they did not distinguish between past and future loss of consortium). In our own research, however, we found a case in which the plaintiff-husband, like here, survived an accident but suffered physically and emotionally from his injuries. See W. Star Transp., Inc. v. Robison, 457 S.W.3d 178, 189 (Tex. App.—Amarillo 2015) (upholding a past loss of consortium award of $250,000 where the husband suffered a traumatic brain injury that would “significantly affect him for the remainder of his life”). In Robison, the jury awarded the plaintiff’s wife $250,000 for past loss of consortium on January 18, 2013. Adjusting for inflation, that award translates to roughly $272,750.00. And adding our 150% multiplier [*22] to that number, the maximum recovery rule limits Mrs. Puga’s recovery to $409,125.00.
Accordingly, we AFFIRM the district court’s decision to affirm the jury’s award of future consortium damages. However, we REVERSE the district court’s decision to affirm the jury’s award of past consortium damages and REMAND for the exact calculation of Mrs. Puga’s maximum recovery in light of West Star Transportation, Inc. v. Robison, 457 S.W.3d 178.
VI.
Finally, RCX argues that it is entitled to a settlement credit under Texas law—an issue the district court did not consider. The Pugas agree that RCX is entitled to a settlement credit. See RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 862 (5th Cir. 2010) (applying a settlement credit in a Texas law diversity case). We, therefore, REVERSE the district court’s decision not to apply a settlement credit and REMAND for the district court to calculate the appropriate settlement credit amount and modify the final judgment accordingly.
VII.
For the foregoing reasons, we AFFIRM the district court’s choice of jury instructions; we AFFIRM that Trooper Smith was properly admitted to testify as an expert on accident investigation; and we AFFIRM the district court’s decision to uphold the jury’s award for future loss of consortium. We REVERSE the [*23] district court’s decision to uphold the full amount of the jury’s award for past consortium damages and REMAND to the district court to calculate the appropriate amount of past consortium damages. We also REMAND to the district court so that it can calculate the settlement credit to which RCX is entitled and modify its final judgment accordingly.

Green v. Markovitch

Green v. Markovitch
United States District Court for the Northern District of Alabama, Western Division
April 19, 2019, Decided; April 19, 2019, Filed
7:18-cv-00098-LSC

Reporter
2019 U.S. Dist. LEXIS 66740 *
JELLEANER N. GREEN, et al., Plaintiffs, v. ROBERT LEE MARKOVITCH, et al., Defendants.

MEMORANDUM OF OPINION
Before the Court is Defendants Robert Lee Markovitch (“Markovitch”) and Eagle Logistics Services, Inc.’s (“Eagle”) motion for partial summary judgment. (Doc. 29.) The motion has been briefed and is ripe for review. For the reasons stated below, Markovitch and Eagle’s motion for partial summary judgment (doc. 29) is due to be GRANTED in PART and DENIED in PART.

I. BACKGROUND1
This is a personal injury lawsuit arising out of a motor vehicle accident involving a commercial tractor-trailer and a passenger vehicle. The accident happened at approximately 1:30 [*2] PM on July 4, 2016 on I-20/59 in Sumter County, Alabama. Plaintiff Jelleaner Green (“Green”) was driving a 2016 Chevrolet Malibu. Plaintiff Diane Neal (“Neal”) was seated in the Malibu’s front passenger seat. Defendant Markovitch was driving a commercial tractor-trailer for Defendant Eagle. As Green was driving in the right-hand lane, she saw Markovitch’s truck approach her vehicle from behind in the left-hand lane and move alongside her vehicle. Markovitch then changed lanes and struck Plaintiffs’ vehicle. As a result of the impact, the Plaintiffs’ vehicle spun in front of Markovitch’s vehicle, which pushed the Plaintiffs’ vehicle until it came to a stop on the interstate. Dash camera video indicates that Markovitch was traveling approximately 75 miles per hour when the accident happened. Green was driving about 70 miles per hour, which was the speed limit. After the vehicles came to a stop, Plaintiffs exited their vehicle through the passenger door and spoke to Markovitch. Green testified that during this conversation Markovitch appeared “spaced-out.” (See Doc. 29-23 at 27.) According to Plaintiffs, Markovitch told them that he did not see their vehicle. Markovitch claims that this [*3] was because Plaintiffs’ vehicle was in his blind spot. After the accident, Markovitch remained at the accident scene, called 911, and took pictures of the vehicles involved. He did not receive a traffic citation. Plaintiffs were transported by ambulance to the hospital where they were treated and released that same day.
At the time of the accident, Markovitch had been driving for approximately 1 hour and 34 minutes after having spent around nineteen hours in his sleeper berth. Markovitch was 32 years old and had previously been trained to drive commercial vehicles at truck driving school. He obtained his commercial driver’s license (“CDL”) on July 8, 2014. On July 28, 2015, Markovitch received a medical examiner’s certificate, which qualified him to drive commercial motor vehicles for two years. In August 2015, Markovitch applied to work as a truck driver for Eagle.
On August 24, 2015, Eagle obtained Markovitch’s motor vehicle record, which revealed a clean driving record. Eagle also ran a “PSP Detailed Report” on Markovitch to obtain Federal Motor Carrier Safety Administration information about him. Before hiring Markovitch, Eagle made inquiries with Markovitch’s former employers and [*4] administered a pre-employment drug test. Markovitch tested negative for drugs and passed Eagle’s road evaluation test. Eagle then trained Markovitch on defensive driving and gave him a Federal Motor Carrier Safety Regulations (“FMCSR”) pocketbook.
In his employment application, Markvovitch noted that he had previously been involved in a single vehicle accident when his commercial vehicle jack-knifed in the snow on December 23, 2014. He also disclosed that he had received citations for failing to obey traffic signals in Kentucky on April 16, 2015 and in Virginia on March 4, 2015. Based on its pre-employment review of Markovitch, Eagle determined that he was qualified to operate a commercial motor vehicle under the FMCSR, but assigned him 25 points on its driver’s point system.
In September 2015, Markovitch signed Eagle’s “Points and Events Page” and acknowledged that “upon reaching a total of 4 events and/or 30 points, my employment will be terminated.” (See Doc. 29-19 at 2.) Eagle disputes that its policy is to automatically terminate drivers who reach an assessment of 30 points. However, it admits that once a driver reaches 30 points it reviews the driver’s record to determine whether [*5] to retain and train the driver or terminate employment. On November 20, 2015, Markovitch received a speeding ticket for driving 6 to 10 miles over the speed limit. While employed by Eagle, he also received a citation for a flat tire and two overweight citations. Eagle did not assess Markovitch any points for these incidents. Because the accident involving Plaintiffs raised Markovitch’s point total to more than 30 points, Eagle terminated his employment soon after the accident occurred.

II. STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact2 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine dispute as to a material fact exists “if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence, but determine whether there are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
In considering a motion for summary judgment, trial courts must give deference to the [*6] non-moving party by “view[ing] the materials presented and all factual inferences in the light most favorable to the nonmoving party.” Animal Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)). However, “unsubstantiated assertions alone are not enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory allegations and “mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the moving party has the burden of either negating an essential element of the nonmoving party’s case or showing that there is no evidence to prove a fact necessary to the nonmoving party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

III. DISCUSSION
Markovitch and Eagle seek summary judgment on all of Plaintiffs’ claims against them except Count One, Negligence. Plaintiffs concede that summary judgment is due to be granted on their claims of negligent and wanton maintenance, service, and repair; negligent and wanton hiring [*7] and training; and wanton supervision, retention, and entrustment. (Doc. 34 at 2.) The Court will address each of Plaintiffs’ remaining claims against Markovitch and Eagle in turn.

A. Wantonness
Under Alabama law, wantonness is “the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007) (citing Bozeman v. Cent. Bank of the S., 646 So. 2d 601 (Ala. 1994)) (emphasis in original). Wantonness is not simply a more severe version of negligence, but is an entirely different tort concept. Id. While negligence is characterized as “the inadvertent omission of duty,” wanton misconduct is characterized by the state of mind of consciously taking an action with knowledge that “the doing or not doing of [the act] will likely result in injury . . . .” Id. (quoting Tolbert v. Tolbert, 903 So. 2d 103, 114-15 (Ala. 2004)). “Wantonness is a question of fact for the jury, unless there is a total lack of evidence from which the jury could reasonably infer wantonness.” Cash v. Caldwell, 603 So. 2d 1001, 1003 (Ala. 1992).
The question of wantonness often arises in cases like this one. See, e.g., Essary, 992 So. 2d at 6-9; Scott v. Villegas, 723 So. 2d 642, 642-43 (Ala. 1998). In Alabama, drivers are presumed to not engage in self-destructive behavior. Essary, 992 So. 2d at 12. Implicit in this presumption is the requirement that [*8] the defendant’s behavior creates a “risk of injury to [himself] . . . as real as any risk of injury to the plaintiffs.” Id. Thus, this Court has previously held that the Essary presumption against self-destructive behavior did not apply to a case where a truck driver’s attempt to “beat the traffic” caused another vehicle to collide with the trailer of his 18-wheeler. See McCutchen v. Valley Home, Inc., 100 F. Supp. 3d 1235, 1240 (N.D. Ala. 2015). However, there is no per se rule that the driver of a commercial vehicle can never enjoy the Essary presumption. See Craft v. Triumph Logistics, Inc., 107 F. Supp. 3d 1218, 1222 (M.D. Ala. 2015).
Based on the facts of this case, the Court finds that the Essary presumption applies. Although Markovitch was driving a commercial tractor-trailer, he could not be sure that a collision with Plaintiffs’ vehicle would not injure him as well as Plaintiffs. As a result of the collision, Plaintiffs’ vehicle struck the driver’s cab portion of Markovitch’s truck. This distinguishes this case from McCutchen and other cases involving tractor-trailers where the Essary presumption did not apply. In those cases, the defendants’ actions caused smaller passenger vehicles to collide into the trailer portion of commercial vehicles. See McCutchen, 100 F. Supp. 3d at 1237; Griffin v. Modular Transp. Co., No. 2:12-CV-2378-WMA, 2014 U.S. Dist. LEXIS 28734, 2014 WL 896627, at *4 (N.D. Ala. March 6, 2014) (noting that “[a] collision [*9] between a car and the flatbed portion of a tractor trailer does not carry the same risk of injury to the trailer driver as it does to the car driver.” (emphasis in original)). Thus, unlike here, there was no real risk of injury to those defendants.
Although the Court concludes that Markovitch is entitled to the Essary presumption, its analysis of Plaintiffs’ wantonness claim does not end there. The Essary presumption may be rebutted by “evidence of impaired judgment, such as from the consumption of alcohol” or conduct that is so “inherently reckless” that it signals the kind of “depravity consistent with disregard of instincts of safety and self-preservation.” See Essary, 992 So. 2d at 12. Plaintiffs argue that a reasonable jury could find that Markovitch was intoxicated at the time of the accident. The Court disagrees. The only evidence Plaintiffs have offered to support this contention is: (1) Green’s testimony that after the wreck Markovitch appeared to be “spaced-out” and (2) that the day before the accident, which happened to be the day before Independence Day, Markovitch spent nineteen hours in his sleeper berth. As a matter of law, this evidence is insufficient to support a finding that Markovitch was [*10] intoxicated at the time of the accident.
However, there is a genuine dispute of material fact as to whether Markovitch’s conduct was “inherently reckless.” Markovitch admits that he was using a hands-free headset device to talk on his phone at the time of the accident. Moreover, the dash camera video shows that several vehicles were on the road when this wreck occurred. The dash camera video also reveals that Markovitch was traveling at approximately 75 miles per hour in a 70 mile per hour zone. Markovitch knew of these road conditions and that he was talking on his phone when he opted to change lanes. Despite this, he did not make sure that he was clear of Plaintiffs’ vehicle before merging into the right lane. Based on this evidence, the Court concludes that a reasonable jury could find that Markovitch’s behavior was “inherently reckless.” See Hornady Truck Line, Inc. v. Meadows, 847 So. 2d 908, 915-16 (Ala. 2002) (finding a jury question of wantonness where facts included driver’s inattentiveness, combined with high rate of speed and adverse weather conditions). Accordingly, Markovitch and Eagle’s motion for summary judgment on Plaintiffs’ wantonness claim is due to be denied.

B. Negligent, Supervision, Retention, and Entrustment
The Alabama Supreme Court [*11] has stated the elements of a negligent supervision or retention claim in this way:
In the master and servant relationship, the master is held responsible for his servant’s incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon it being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence.
Voyager Ins. Cos. V. Whitson, 867 So. 2d 1065, 1073 (Ala. 2003) (quoting Lane v. Cent. Bank of Ala., N.A., 425 So. 2d 1098, 1100 (Ala. 1983)) (emphasis in original). To prove a negligent entrustment claim, Plaintiffs must also show that Eagle either knew or should have known that Markovitch was incompetent to drive. See Bruck v. Jim Walter Corp., 470 So. 2d 1141, 1144 (Ala. 1985). Thus, to succeed on either of these claims Plaintiffs must prove: (1) that Markovitch was incompetent; and (2) that Eagle either knew or should have known of his incompetency.
In Alabama, “the incompetence of a driver is measured by the driver’s demonstrated ability (or inability) to properly drive a vehicle,” Halford v. Alamo Rent-A-Car, LLC, 921 So. 2d 409, 413-14 (Ala. 2005), and this may be measured by characteristics such as “general incompetence” or “habitual [*12] negligence.” Edwards v. Valentine, 926 So. 2d 315, 322 (Ala. 2005).
Plaintiffs point to the following evidence as providing support for their contention that Markovitch was incompetent: (1) the December 2014 jack-knife incident; (2) Markovitch’s two pre-employment traffic citations; (3) the November 2015 speeding violation; (4) Markovitch’s citation for a flat trailer tire; and (5) Markovitch’s two post-employment weigh station violations. (See Doc. 34 at 27.)3 This evidence is insufficient to support a finding that Markovitch was habitually negligent. As another court has explained, several traffic violations do not establish habitual negligence if they occur under “diverse circumstances.” See Craft, 107 F. Supp. 3d at 1225. Instead, the kind of habitual negligence that amounts to incompetence under Alabama law includes situations where an employee engaged in the same negligent practice numerous times. See, e.g., Pritchett v. ICN Med. All., Inc., 938 So. 2d 933, 941 (Ala. 2006) (finding jury question on negligent supervision claim where there was evidence that employee had engaged in improper safety technique at least 30 to 40 different times). Markovitch’s traffic violations do not rise to this level of negligence.
Thus, the Court will turn to the issue of whether there is sufficient evidence to support a finding of general incompetence. [*13] As Eagle notes, at the time of the accident, Markovitch had graduated from truck driving school, obtained a CDL, driven a commercial vehicle for about two years, and had no history of accidents involving personal injuries. Based on its pre-employment review of Markovitch, Eagle assigned him 25 points on its driver’s point system but determined that he was qualified to operate a commercial motor vehicle.
While the evidence presented by Plaintiffs does show that Markovitch’s driving record was not completely free of mistakes, this is insufficient to support a finding of general incompetence. Under Alabama law, Markovitch was not required to be a perfect driver. See Pryor v. Brown & Root USA, Inc., 674 So. 2d 45, 52 (Ala. 1995) (“[Defendant]’s prior driving record—two speeding tickets and a suspended prosecution of a DUI charge over a 10-year period—is not sufficient to support a claim of negligent entrustment.”); Thompson v. Havard, 285 Ala. 718, 235 So. 2d 853, 857 (Ala. 1970) (“[P]roof of two moving violations or accidents within a two year period prior to the accident . . . is probably insufficient [to present the question of incompetency to a jury].” (internal citations and quotations omitted)); see also Askew v. R & L Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala. 2009) (finding that a driver’s record of two moving violations and four minor accidents over an approximately [*14] nine-year period did not amount to incompetence). Instead a finding of incompetency requires a showing of a demonstrated inability to properly drive a vehicle. See Halford, 921 So. 2d at 413-14. Under this standard, the Court concludes that Markovitch’s driving history is insufficient to raise a genuine issue of material fact as to his incompetency.
Finally, Plaintiffs reference Eagle’s failure to assign Markovitch points for the jack-knife incident as well as his post-employment speeding, flat tire, and weigh station violations as supporting their contention that Markovitch was incompetent. Evidence of a company policy may be relevant to the competency inquiry when the policy relates to a driver’s eligibility to drive. See Trinidad v. Moore, No. 2:15cv323-WHA, 2016 U.S. Dist. LEXIS 106099, 2016 WL 4267951, at *3 (M.D. Ala. Aug. 11, 2016). However, Plaintiffs have not shown how Eagle’s failure to assess points for these violations affected Markovitch’s eligibility. As Eagle notes, its point system did not require it to assess Markovitch with any points for the flat tire and weigh station violations because these were nonmoving violations. Eagle has also presented evidence that due to the circumstances surrounding the jack-knife incident it was not chargeable. Plaintiffs have presented the Court [*15] with no evidence to the contrary. Although the speeding violation was pointable, there is no evidence that had Markovitch been assessed points for the speeding violation he would have reached 30 points on Eagle’s driver’s point system. Moreover, the Court has considered the speeding violation as part of Markovitch’s driving history and determined that, as a matter of law, he was not an incompetent driver. Therefore, Eagle is entitled to summary judgment on Plaintiffs’ negligent supervision, retention, and entrustment claims.

IV. CONCLUSION
For the reasons stated above, Eagle and Markovitch’s motion for partial summary judgment (doc. 29) is due to be GRANTED in PART and DENIED in PART. The motion is due to be denied in regards to Plaintiffs’ wantonness claims and granted in all other respects. An order consistent with this opinion will be entered contemporaneously herewith.
DONE and ORDERED on April 19, 2019.
/s/ L. Scott Coogler
L. Scott Coogler
United States District Judge

ORDER
For the reasons stated in the Memorandum of Opinion entered contemporaneously herewith, Defendants Robert Lee Markovitch and Eagle Logistics Services, Inc.’s motion for partial summary judgment (doc. 29) is GRANTED [*16] in PART and DENIED in PART. The motion is denied in regards to Plaintiffs’ wantonness claims and granted in all other respects.
DONE and ORDERED on April 19, 2019.
/s/ L. Scott Coogler
L. Scott Coogler
United States District Judge

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