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Wiedeman v. Canal Insurance Co.

United States District Court, N.D. Georgia, Atlanta Division

June 16, 2017

GREGORY WIEDEMAN, Plaintiff,
v.
CANAL INSURANCE COMPANY, H&F TRANSFER, INC., AUTO-OWNERS INSURANCE COMPANY, WALTER PATRICK DORN, IV, WESCO INSURANCE COMPANY, and SALEM LEASING CORPORATION, d/b/a Salem Nationalease, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Salem Leasing Corporation's (“Salem”) Motion for Summary Judgment [169] and Defendant Wesco Insurance Company's (“Wesco”) Motion for Summary Judgment [177].

         I. BACKGROUND

         A. Facts

         This action arises from an August 8, 2014, collision (the “Collision”) between Plaintiff Gregory Wiedeman (“Plaintiff”) and Defendant Walter Patrick Dorn, IV, an employee of Defendant H&F Transfer, Inc. (“H&F”). (Salem's Statement of Undisputed Facts [169.17] (“SSUF”) ¶ 1; Pl.'s Resp. [187] (“R-SSUF”) ¶ 1). The Collision involved a truck operated by Dorn, and a motorcycle operated by Plaintiff. (SSUF ¶ 2; R-SSUF ¶ 2). H&F leased the truck from Salem. (See SSUF ¶¶ 9, 10; R-SSUF ¶¶ 9, 10). Wesco issued a commercial business auto policy to Salem. ([177.2] ¶ 12; [193.1] ¶ 12).

         The investigating officer at the scene of the Collision found Plaintiff at fault for causing the Collision, because Plaintiff failed to yield for a red light. (SSUF ¶ 3).[1] Plaintiff claims he had a green light at the time of the Collision. (Pl.'s Statement of Additional Facts [187] (“PSAF”) ¶ 1).

         At the time of the Collision, Dorn was employed by H&F, and was acting within the course and scope of his employment. (SSUF ¶¶ 4, 11; R-SSUF ¶¶ 4, 11). Dorn was never employed by Salem and he never received any type of training or direction regarding his duties from Salem. (SSUF ¶¶ 6-8; R-SSUF ¶¶ 6-8). Salem does not transport passengers or property for compensation. (SSUF ¶ 15; R-SSUF ¶ 15).

         Salem claims that, on the date of the Collision, the truck was in the exclusive control, possession, and dispatch of H&F. (SSUF ¶¶ 12-14). Plaintiff claims that the truck was at all times owned by Salem who also had the ability to control and possess it as an owner or lessor. (R-SSUF ¶¶ 12-14).

         B. Procedural History

         On February 26, 2016, Plaintiff filed his Amended Complaint [33]. In it, Plaintiff asserts the following claims against Salem: (1) respondeat superior liability based on negligent hiring, retention, entrustment, and supervision of Dorn; and (2) negligent failure to comply with federal and state motor carrier safety regulations and trucking industry standards of care. Plaintiff asserts a claim against Wesco, as Salem's insurer, pursuant to Georgia's direct action statute, O.C.G.A. § 40-1-112.

         On September 13, 2016, Salem filed its Motion for Summary Judgment. Salem argues Plaintiff's negligence claims fail, including because Salem did not owe Plaintiff a duty, Plaintiff does not present any evidence Salem breached any duty, and Plaintiff's own acts were the proximate cause of his injuries. Salem moves for summary judgment on Plaintiff's negligent hiring, retention, entrustment, and supervision claims, arguing that Salem is not vicariously liable for Dorn's actions because it never employed, supervised, or trained Dorn. Salem moves for summary judgment on Plaintiff's claim for negligent failure to comply with motor carrier regulations, arguing that Salem is not a “motor carrier” under federal or state motor carrier statutes and that Plaintiff does not present any evidence that Salem failed to comply with any regulations. Salem also seeks attorneys' fees under O.C.G.A. § 9-15-14, arguing that Plaintiff has “refused to dismiss the frivolous claims against [Salem] notwithstanding the clear and convincing evidence that [Salem] is not conceivably liable for Plaintiff's alleged damages.” ([169.16] at 22).

         In his response brief [187.1], Plaintiff does not substantively respond to Salem's arguments. Instead, Plaintiff argues that, as a result of Salem's alleged spoliation of evidence, “Salem cannot be allowed out of the case until the Court rules on Plaintiff's upcoming sanctions motion, and there is confirmation that Salem has not destroyed or otherwise hidden any relevant evidence in this case. If the Court grants Plaintiff's sanctions motion, it can, among other things, enter judgment in favor of Plaintiff.” ([187.1] at 9). Plaintiff also argues sanctions under Section 9-15-14 are not available in federal court and, even if they were, they are not warranted here.

         On September 23, 2016, Wesco filed its Motion for Summary Judgment, arguing that its insured Salem was not a “motor carrier, ” and thus Wesco is not a proper party under Georgia's direct action statute, O.C.G.A. § 40-1-112. Wesco also argues that the policy it issued to Salem covered only physical damage to the truck. Wesco, like Salem, seeks attorneys' fees under O.C.G.A. § 9-15-14 because Plaintiff “refused to dismiss Wesco despite the fact that there are no valid claims upon which Plaintiff could recover against” it. ([177.1] at 13).

         On April 5, 2017, Plaintiff filed his Renewed Motion for Sanctions Against Defendants H&F Transfer, Inc. and Salem Leasing Corporation [221] (“Renewed Sanctions Motion”). On June 9, ...


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