United States District Court, S.D. Mississippi, Eastern Division
CHEROKEE INSURANCE COMPANY, et al. PLAINTIFFS
THOMAS SMITH, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
Starrett UNITED STATES DISTRICT JUDGE
reasons below, the Court denies Plaintiffs' Motion for
Partial Summary Judgment .
case arises from a motor vehicle accident involving two
tractor-trailers, or “18-wheelers.”
Plaintiffs' truck was a standard 18-wheeler pulling a
trailer. Defendants' truck pulled a “wide
load” - a mobile home. Defendant Thomas Smith drove the
“wide load” truck, while Defendant Danny Madden
drove an escort vehicle.
was traveling north on Highway 49. There were two northbound
lanes, a middle turn lane between the north- and south-bound
traffic, and an outside right turn lane. At the time of the
accident, Defendant Smith's “wide load” truck
was in the left northbound lane, apparently preparing to make
a wide right turn. Defendant Madden's escort vehicle was
behind the “wide load” truck. Plaintiffs'
truck was cruising in the outside lane, which turned into a
turn lane several seconds before the accident.
Plaintiffs' driver, Andrew Felder, passed the escort
vehicle and struck the “wide load” truck as it
made a wide right turn from the left lane.
time of the accident, Defendants Smith and Madden were either
employees of Defendant GKD Management Co., LP, d/b/a A&G
Commercial Trucking, or they operated their vehicles pursuant
to a contract with GKD. Plaintiff Phenix Transportation was
insured by Plaintiff Cherokee Insurance Company. Cherokee
paid Phenix policy benefits and became subrogated to its
rights against the Defendants.
filed this lawsuit. They allege that Smith and Madden's
negligence proximately caused the accident. Specifically,
they allege that Smith and Madden failed to keep a proper
lookout, failed to yield the right-of-way, failed to maintain
proper control of their vehicles, failed to operate their
vehicles at the proper rate of speed, failed to observe and
respond to the traffic conditions, and failed to abide by
regulations promulgated by the Mississippi Department of
Transportation (“MDOT”). Plaintiffs further
allege that GKD is vicariously liable for Smith and
Madden's actions and omissions. Finally, Plaintiffs
allege that Defendants are liable to Cherokee in the amount
of $76, 219.75, the amount it paid under the policy issued to
Phenix. They further allege that Defendants are liable to
Phenix in the amount of $15, 000.00, which represents the
remaining actual cash value of its damaged truck.
filed a Motion for Partial Summary Judgment  as to
Defendants Smith and Madden. The motion is ready for review.
Standard of Review
provides that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); see also Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d
134, 138 (5th Cir. 2010). “An issue is material if its
resolution could affect the outcome of the action.”
Sierra Club, Inc., 627 F.3d at 138. “An issue
is ‘genuine' if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving
party.” Cuadra v. Houston Indep. Sch. Dist.,
626 F.3d 808, 812 (5th Cir. 2010).
Court is not permitted to make credibility determinations or
weigh the evidence. Deville v. Marcantel, 567 F.3d
156, 164 (5th Cir. 2009). When deciding whether a genuine
fact issue exists, “the court must view the facts and
the inference to be drawn therefrom in the light most
favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional
allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a
genuine issue for trial.” Oliver v. Scott, 276
F.3d 736, 744 (5th Cir. 2002).
argue that summary judgment against Defendants Smith and
Madden is appropriate because video of the accident from the
dash-cam in Plaintiffs' truck “clearly shows the
Defendants were entirely at fault for the accident.”
For the purpose of addressing the current motion, the Court
will assume that the record contains evidence that Defendants
Smith and Madden negligently caused the accident.
course, “there may be more than one proximate
cause” of an accident. Tharp v. Bunge Corp.,
641 So.2d 20, 24 (Miss. 1994). “The defendant may be
negligent, but so too may be the plaintiff.”
Id. “Mississippi is a pure comparative
negligence state. Where negligence by both parties is
concurrent and contributes to injury, recovery is not barred.
Instead, the plaintiff's recoverable damages are
diminished by the proportion of her contributed
negligence.” Smith v. Waggoners Trucking
Corp., 69 So.3d 773, 778 (Miss. Ct. App. 2011); see
also Miss. Code Ann. § 11-7-15. Based on ...