Green v. Markovitch

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge.

         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. Background^[1]

         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 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 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 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 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 fact^[2] 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 (1986).

         In considering a motion for summary judgment, trial courts must give deference to the 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 (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 (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 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.

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