United States District Court, N.D. Georgia, Atlanta Division
Wind Logistics Professional, LLC and Anthony Parson, Plaintiffs,
Universal Truckload, Inc., Defendant, Ace Doran, LLC, et al., Counterclaim Defendants,
OPINION AND ORDER
Michael L. Brown, United States District Judge.
Plaintiff Universal Truckload, Inc. (“Counterclaim
Plaintiff” or “Universal”) filed a Second
Motion for Partial Summary Judgment (Dkt. 115), and
Counterclaim Defendants also moved for summary judgment (Dkt.
121). For the reasons below, the Court grants in part and
denies in part each motion.
Parson began working for Universal as an employee in
2003. (Dkt. 131-1 at ¶ 1.) He helped
coordinate the transportation and delivery of industrial wind
equipment for one client, GE Wind Energy Outbound (“GE
Wind”), a business unit of a General Electric Company.
(Id. ¶¶ 2–4.) He created a network
of truck owner-operators, working as independent contractors
to carry GE Wind freight under Universal’s motor
carrier license. (Dkt. 119 at 14:7–10.) These drivers
own and operate their own specialized transportation
equipment used to transport over-sized loads. (Dkt. 124 at
and Universal changed their professional relationship in
2012. (Dkt. 123 at 38:4–6.) Parson became an
independent contractor working exclusively for Universal.
(Dkt. 131-1 ¶¶ 8–9.) He still coordinated
transportation between Universal and GE Wind and managed the
relationships between Universal, GE Wind, and the truck
owner-operators. (Dkt. 123 at 43:16–44:21.) Parson
created Wind Logistics Professional LLC (“Wind
Logistics”) to facilitate this work. (Dkt. 124 at
22:3–6.) Universal and Parson signed two contracts, the
Agency Agreement and the Commissioned Agency Agreement
(“CAA”). (Dkt. 123-1 at 5–11.)
also loaned Parson $85, 000. (Id. at 12.) In
exchange, Parson agreed to represent only Universal for five
years. (Id.) Universal also agreed to forgive the
loan over a five-year period, forgiving one-fifth of the loan
each year. (Id.) Parson agreed to repay the loan if
he failed to meet revenue goals or began competing with
Universal within five years. (Id.)
2013, Bennett Motor Express (“Bennett”) agreed to
lend Parson $500, 000 if he ended his relationship with
Universal and became Bennett’s exclusive agent. (Dkt.
123 at 77:2–15.) Parson told Universal about the offer,
and Universal agreed to match it. (Id.) Universal
agreed to lend Parson the money and to forgive $100, 000 each
year so that it would forgive the entire loan after five
years provided Parson kept working as Universal’s
exclusive agent. (Id.) The repayment terms shifted
slightly depending on whether Parson stopped working for
Universal to work for a competitor or left Universal for
other reasons. (Dkt. 123-1 at 13.)
arrangement worked well. Parson and Wind Logistics generated
about $22 million in revenue in 2013, $32 million in 2014,
and $40 million in 2015. (Dkt. 124 at 127:23–128:22.)
In mid-2015, however, Parson became concerned about two
policies that Universal proposed for the owner/operators.
(Dkt. 123 at 55:2–56:17.) First, Universal sought to
implement a pay-delay to new owner-operators of
Parson’s fleet. (Dkts. 123 at 57:20–24; 120 at
104:20–24.) Second, it wanted to charge drivers a
surcharge on permits and escorts. (Id.) Parson
feared these policies would make recruiting drivers difficult
and decided to stop working with Universal. (Dkt. 124 at
40:2–17.) He signed a letter of intent to work with
Bennett in November 2015. (Id.) In it, he agreed to
work with Bennett’s heavy haul division, Ace Doran, LLC
(“Ace Doran”), to move equipment for GE Wind.
(Dkt. 124-1 at 33–34.) The letter stated that Parson
would begin working with Bennett on January 1, 2016.
(Id.; Dkt. 124 at 41:15–21.)
signing that letter with Bennett, Parson did not tell
Universal that he planned to end their exclusive
relationship. But, on December 14, 2015, Mark Limback
(Universal’s President) heard from others in the
industry that Parson already decided stop working with them.
(Dkt. 120 at 115:1–12.) A Universal employee then sent
text messages to Parson’s GE Wind drivers telling them
to contact Universal’s “NEW AGENT” for all
GE Wind shipments. (Dkt. 120-1 at 39.) Two days later,
Universal representatives confronted Parson about his plan to
end their relationship. (Dkt. 123 at 52:16–53:14.) On
December 22, Parson finally told Universal that he was ending
their agency relationship as of December 28. (Dkt. 123-1 at
14–15.) As planned, he began working with Bennett on
January 1, 2016. (Dkt. 131 ¶ 62.)
of the eighty drivers with whom Parson had worked with at
Universal followed him to Ace Doran. (Dkt. 123 at
87:20–88:1.) Universal’s business with GE Wind
also dried up, declining from $40 million in 2015 to $4.3
million in 2016. (Dkt. 120 at 45:6–19.) Ace Doran seems
to have picked up that business as it had revenue exceeding
$44 million in 2016. (Dkt. 124 at 128:20–22.)
evidence shows that, before Parson notified Universal of his
intent to end their relationship, he had extensive
communications with Bennett, GE Wind, and his network of
drivers about his intended move. The parties do not dispute
that these communications took place between September 2015
and December 28, 2015, though they dispute their legal
significance. Parson, for example, provided Bennett and Ace
Doran several documents about shipping windmill equipment.
These documents consisted of
. the two-week schedule of loads GE Wind
awarded to Universal (Dkt. 131-1 ¶¶ 49-52);
. Universal’s 2016 blade
(Dkt. 124 at 102:6-12);
. Universal’s projected line of
business, which shows Universal’s prospective and
retrospective awards from GE Wind (Dkt. 125 at 81:4-82:2);
. information on the trailers Ace Doran
would need to perform the outbound heavy haul transportation
of GE Wind’s specialized blades and towers (Dkt. 124 at
. pictures of Universal’s blade
trailers (Dkt. 125 at 22:1-14); and
. Universal’s proposal to GE Wind for
the purchase and repayment of blade trailers to support
Universal’s GE Wind business (Id. at 21:9-16).
also helped facilitate drivers moving from Universal to
Bennett. He sent Bennett a list of the drivers leased to
Universal who were hauling GE Wind freight, including their
addresses, dates of birth, and driver’s license
numbers. (Id. at 46:3-13.) He also gave Bennett a copy of
Universal’s insurance materials that Ace Doran could
use as a model for its own. (Dkt. 124 at
spoke with the drivers to facilitate their transfer to
Bennett. He notified three fleet owners with contracts with
Universal that he was leaving for Bennett as of January 1,
2016. (Dkt. 123 at 108:10-109:13.) He reassured a fleet owner
that Ace Doran would have work for him once the drivers
contracted with Ace Dornan. (Dkt. 124 at 96:3-11.) He
personally contacted every single owner-operator and driver
who hauled GE Wind outbound freight for Universal to notify
them that he was no longer comfortable with Universal and
that he was leaving for Bennett. (Id. at
83:21–84:9.) He also provided Universal’s
owner-operators and drivers links in mid-December 2015 to an
Ace Doran application, answered questions from drivers about
differences “between the two companies… what is
here versus there, ” and worked on plans to get drivers
to attend Ace Doran’s orientation so they could prepare
to haul loads for Ace Doran. (Id. at 85:1–5;
Dkts. 124 at 157:1–5; 125 at 60:4– 25.)
the time he agreed to join Bennett and the time he notified
Universal of his plan, he also spoke with GE Wind to
facilitate his efforts to move its business to Ace Doran.
During this time, he told GE Wind that he would be leaving
Universal the same day that he signed the letter of intent
with Bennett and that he would have “100% of the
current fleet of owner-operators who were under contract with
Universal.” (Dkt. 124 at 166:16–20.) He began
conducting business from an Ace Doran email account,
including corresponding directly with individuals at GE Wind.
(Dkt. 123 at 86:9–17.) Finally, he asked Ace Doran to
get registered in GE Wind’s computer system, presumably
to make the transition easier. (Dkt. 123 at
Parson and Wind Logistics sued Universal in January 2016 for
breach of contract. (Dkt. 1.) Defendant Universal
counterclaimed in its answer, alleging breach of contract,
breach of fiduciary duty, and tortious interference with
business relations. (Dkt. 2.) The Court permitted Universal
to add Ace Doran, LLC, Bennett Motor Express, and Bennett
International Group, LLC as Counterclaim Defendants. (Dkt.
91.) Here are two motions: Defendant and Counterclaim
Plaintiff Universal’s Motion for Summary Judgment; and
Counterclaim Defendants Anthony Parson’s, Wind
Logistics, LLC’s, Ace Doran, LLC’s, Bennett Motor
Express’s, and Bennett International Group, LLC’s
(collectively “Counterclaim Defendants”) Motion
for Summary Judgment. (Dkts. 115, 121.)
of the Federal Rules of Civil Procedure provides that a 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). A factual dispute is genuine if the
evidence would allow a reasonable jury to find for the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A fact is “material” if
it is “a legal element of the claim under the
applicable substantive law which might affect the outcome of
the case.” Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997).
party moving for summary judgment bears the initial burden of
showing a court, by reference to materials in the record,
that there is no genuine dispute as to any material fact.
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). A moving party does
this by showing “an absence of evidence to support the
nonmoving party’s case.” Celotex, 477
U.S. at 325. The movant, however, need not negate the other
party’s claim. Id. at 323. It simply must show
a lack of dispute as to a material fact. In determining
whether a movant has done this, the Court views the evidence
and all factual inferences in the light most favorable to the
party opposing the motion. Johnson v. Clifton, 74
F.3d 1087, 1090 (11th Cir. 1996).
movant meets its burden, the nonmovant must show that summary
judgment is improper by identifying specific evidence that
raise a genuine dispute as to a material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). Ultimately, there is no “genuine [dispute]
for trial” when the record as a whole could not lead a
rational trier of fact to find for the nonmoving party.
Id. But “the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at
247–48. The court, however, resolves all reasonable
doubts in the favor of the non-movant. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
Parson’s Breach of Fiduciary Duty and Duty of
claims Parson and Wind Logistics breached the fiduciary duty
and duty of loyalty they owed it. To sustain a claim for
breach of fiduciary duty, a plaintiff must prove (1) the
existence of a fiduciary duty; (2) breach of that duty; and
(3) damage proximately caused by the breach. See Perry
Golf Course Dev., LLC v. Hous. Auth. of Atlanta, 670
S.E.2d 171, 178 (Ga.Ct.App. 2008). Agents also owe a duty of
loyalty to their principal. S. Parts & Eng’g
Co. v. Air Compressor Servs., LLC, No. 1:13-CV-2231,
2014 WL 667958, at *3 (N.D.Ga. Feb. 20, 2014). But duty of
loyalty claims must be based on a fiduciary duty owed by the
employee and “must rise and fall with any claim for
breach of fiduciary duty.” Hanson Staple Co. v.
Eckelberry, 677 S.E.2d 321, 324 (Ga.Ct.App. 2009).
Existence of a Fiduciary Duty
Georgia law, an agent owes its principal a fiduciary duty.
See Smith v. Pennington, 15 S.E.2d 727, 728 (Ga.
1941). An agency relationship arises “wherever one
person, expressly or by implication, authorizes another to
act for him.” Ga. Code Ann. § 10-6-1. Agents can
create obligations on behalf of the principal, bringing third
parties into contractual relations with the principal.
See Physician Specialists in Anesthesia, P.C. v.
Wildmon, 521 S.E.2d 358, 360 (Ga.Ct.App. 1999). Agency
relationships can be created through “law, contract, or
the facts of a particular case.” Wright v.
Apartment Invest. & Mgt. Co., 726 S.E.2d 779,
785–86 (Ga.Ct.App. 2012).
Plaintiff Universal argues that Parson/Wind Logistics had a
principal-agent relationship with Universal created by both
contract and Parson’s/Wind Logistics’s authority
to bind Universal in contract. Universal claims this
contractual relationship led to a fiduciary duty. Universal
is correct. The contract between Parson and Universal created
an agency relationship. The parties entitled it
“Commissioned Agent Agreement, ” designated
Parson as “The Agent, ” and agreed that
“will operate as a Commissioned Agent.” (Dkt.
123-1 at 5–9.) While self-imposed labels are not always
controlling, Parson admitted in his deposition that the
agreement created a principal-agent relationship. (Dkt. 123
at 38:4–6; Dkt. 124 at 18:13–16); see Salters
v. Pugmire Lincoln-Mercury, 184 S.E.2d 56, 57
(Ga.Ct.App. 1971) (“[O]ne who is party to the
relationship (principal or agent) may testify as fact to the