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Dinger v. Pat Salmon & Sons, Inc.

United States District Court, N.D. Mississippi, Oxford Division

February 13, 2014

BERTRAND DINGER BARBARA DINGER, Plaintiffs,
v.
AMERICAN ZURICH INSURANCE CO. KENAN ADVANTAGE GROUP/CRYOGENICS, Intervenor Plaintiffs,
v.
PAT SALMON & SONS, INC. THE ESTATE OF MARCUS HARDIN, Defendants.

MEMORANDUM OPINION & ORDER

MICHAEL P. MILLS, Chief District Judge.

This cause comes before the court on defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [Doc. 58]. Defendants seek dismissal of plaintiffs' independent negligence claims against Pat Salmon & Sons, Inc. (Salmon) and dismissal of the plaintiffs' claim for punitive damages against Salmon based on vicarious liability for the acts of its employee. The plaintiffs have responded in opposition. Upon due consideration of the memoranda and relevant law, the court is now prepared to rule.

On April 9, 2011, Bertrand and Barbara Dinger (Dingers) were traveling together in a tractor-trailer on U.S. Highway 78 West in Lee County, Mississippi. Bertrand was driving and Barbara was in the sleeping cabin. Due to traffic conditions, they were stopped in their lane. Marcus Hardin was also driving on Highway 78 West in a tractor-trailer that was owned and operated by Salmon. Hardin failed to observe the traffic conditions and crashed into the rear of a Ford F-150 truck being operated by Dwight White. Plaintiffs allege Hardin was driving about 60 miles per hour and was distracted by a handheld electronic device. The force of the impact caused the F-150 to rear end the Dingers' tractor-trailer, causing them injury.[1]

Hardin was employed by Salmon at the time of the accident. The Dingers were each employees of Kenan Advantage Group/Cryogenics at the time of the accident. Kenan and their workers compensation insurer, American Zurich, have intervened in the action seeking reimbursement of worker's compensation benefits.

The second amended complaint alleges that Salmon is liable for compensatory and punitive damages on a vicarious liability/respondeat superior basis for the negligence and gross negligence of Hardin. Plaintiffs further allege that Salmon is liable for compensatory and punitive damages for its own negligence (including hiring, training, permitting use of handheld electronic devices, and other action or inactions). Salmon expressly states that Hardin was an employee and agent of Salmon at the time of the accident, was on or about the business of Salmon, and unequivocally admits that it is vicariously liable for compensatory damages for the negligence of Hardin.

Salmon first moves the court to dismiss the independent negligence claims against it; those not based on vicarious liability for the acts of its driver. Second, Salmon argues that the claim for punitive damages against Salmon based on the acts of its driver should also be dismissed.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Defendants argue that the independent negligence claims against Salmon should be dismissed because Salmon has admitted that Hardin was driving the tractor-trailer in the course and scope of his employment. The "non-respondeat superior claims" have consistently been dismissed by other courts in this state when an employer admits vicarious liability for their employee's action. See Roberts v. Ecuanic Exp., Inc., 2012 WL 3052838 (S.D.Miss. July 25, 2012) (citing Welch v. Loftus, 776 F.Supp.2d 222, 225 (S.D.Miss. 2011); Cole v. Alton, 567 F.Supp. 1084, 1085-86 (N.D. Miss. 1983); Lee v. Harold David Story, Inc., 2011 WL 3047500 (S.D.Miss. 2011); Curd v. W. Express, Inc., 2010 WL 4537936 (S.D.Miss. 2010); Booker v. Hadley, 2009 WL 2225411 (S.D.Miss. 2009)); See also Walker v. Smitty's Supply, Inc., 2008 WL 2487793 (S.D.Miss. 2008) (making an Erie guess that the Mississippi Supreme Court would approve the dismissal of a claim for negligent entrustment against an employer who has already confessed liability for its employee's conduct under the theory of respondeat superior). The courts reason that once an employer admits that it is liable for their employee's actions, evidence that pertains to issues of the employer's own negligence in hiring or supervision becomes redundant and possibly unfairly prejudicial. Id.

Other districts have noted that this "rule" overlooks the irreducible proposition that the doctrine of vicarious liability and the tort of negligent hiring and supervision address different conduct. See, Wright v. Watkins & Shepard Trucking, Inc., 2013 WL 5209044 (D. Nev. Sept. 13, 2013):

The doctrine of vicarious liability restricts employer liability to employee conduct that "should be considered as one of the normal risks to be borne by the business." Restatement (Second) of Agency § 229 comment a (1958). The tort of negligent hiring and supervision creates employer liability when the employer exacerbates the "normal risks to be borne by the business" through the employer's own negligence. Thus, each theory of liability aims at different risky conduct: vicarious liability makes the employer responsible for the normal risks of doing business, while the tort makes the employer responsible for any abnormal risks that she herself creates.

Id. (citing McHaffie By & Through McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995) ("[t]he majority view is that once an employer has admitted respondeat superior liability for a driver's negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability.") (citing numerous cases from other states and secondary sources)).

However, courts have also ruled that it is the driver's conduct that caused the accident that is the issue at trial, and not the negligence of the employer. "Moore's alleged negligence in the Accident, not Waste Connections' alleged negligence in hiring, training, and supervising Moore, is the relevant issue at trial." Young v. Waste Connections of Tennessee, Inc., 2013 WL 3974175 (W.D. Tenn. July 31, 2013) (applying Mississippi law and granting summary judgment on plaintiff's claim based on negligent hiring, training, and supervision because defendants admitted vicarious liability for Mack-Truck driver speeding through school zone, resulting in a fatal accident). "Plaintiffs argue that Defendants are not entitled to summary judgment because there are genuine issues of material fact about Waste Connections' hiring, training, and supervision of Moore. Admitting vicarious liability insulates Waste Connections from the factual disputes Plaintiffs have identified." Id.

The Mississippi Supreme Court has not answered the question of whether an employer who admits vicarious liability should be entitled to dismissal of the independent negligence claims asserted against it. The Supreme Court has held, however, that it was error to admit testimony relevant to plaintiff's negligent entrustment claim because the defendants had admitted that the employee had been within the scope of his employment at the time of accident. Nehi Bottling Co. v. Jefferson, 226 Miss. 586, 84 So.2d 684, 686 (Miss. 1956).

Further, secondary sources in Mississippi do not address the exact scenario when an employer admits vicarious liability for the employee's actions, but state that "[a]n employer can always be held directly liable for his own negligence in hiring, retaining, or supervising, regardless of whether an employee or independent contractor is involved, since the employer is being held liable for his own negligence and not vicariously liable for the negligence of another." Mississippi Law of Torts § 7:23 (2d ed.). This seems to echo the concern announced by the Watkins & Shepard Trucking court. However, the federal courts in Mississippi have regularly held that when an employer admits that they are liable for their employee's actions, the independent negligence claims against the employer should not be an issue at trial. This court does not deviate from the previous holdings in this state under the facts alleged in the complaint in this matter and agrees with the annunciation in Welch: "[a]lthough the Mississippi Supreme Court has not answered the legal question at hand, this Court is satisfied that where a defendant declines to protect himself against a claim of vicarious liability, he voluntarily enters the arena to entertain a ...


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