United States District Court, N.D. Alabama, Western Division
JELLEANER N. GREEN, et al., Plaintiffs,
v.
ROBERT LEE MARKOVITCH, et al., Defendants.
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.
A.
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