Kena HARRIS, as Administrator of the Estate of Chaungene L. Ward, Deceased; Monica Nolan, Plaintiffs-Appellants v. FEDEX NATIONAL LTL, INC., Defendant-Appellee.
No. 13-1981.
United States Court of Appeals, Eighth Circuit.
Submitted: March 25, 2014. Filed: July 24, 2024.
760 F.3d 780
III. CONCLUSION
We affirm the denial of Reece‘s motion to remand and the dismissal of his case. We reverse the award of costs and remand with instructions to deny Mellon‘s motion for costs.
Joseph F. Gross, Jr., argued, Omaha, NE, for Defendant-Appellee.
Before LOKEN, BYE, and BENTON, Circuit Judges.
LOKEN, Circuit Judge.
On October 28, 2007, commercial truck driver Oleg Velichkov lost control and rolled his tractor-trailer, which came to rest blocking both lanes of westbound Interstate 80 in York County, Nebraska. A vehicle driven by Chaungene L. Ward collided with the over-turned truck, killing Ward and seriously injuring his passenger, Monica Nolan. At the time of the accident, Velichkov was employed by Fresh Start, Inc. (“Fresh Start“), driving a tractor leased by Mickey‘s Trucking Express, Inc. (“Mickey‘s“), to Fresh Start. The tractor was pulling two trailers owned by FedEx National LTL, Inc. (“FedEx“) from FedEx‘s Cincinnati, Ohio, service center to its service center in Salt Lake City, Utah. Ward‘s estate and Nolan brought this diversity action against Velichkov, Fresh Start, Mickey‘s, the husband and wife who owned Fresh Start and Mickey‘s, and FedEx, alleging various theories of tort liability. After discovery, the district court1 granted FedEx‘s motion for summary judgment. Plaintiffs eventually dismissed their remaining claims with prejudice, resulting in a final judgment, and now appeal the grant of summary judgment to FedEx. Reviewing the grant of summary judgment de novo and applying the governing law of Nebraska, we affirm. See Williams v. TESCO Servs., Inc., 719 F.3d 968, 970, 972 (8th Cir.2013) (standard of review).
The ultimate issue is whether FedEx is liable for the admitted negligence of truck driver Velichkov. In opposing summary judgment, plaintiffs asserted four theories of liability under Nebraska law. The district court rejected the three theories asserted in plaintiffs’ complaint on the merits. It rejected the fourth by denying as untimely plaintiffs’ motion to amend their complaint. We construe plaintiffs’ rather ambiguous briefs as appealing all four rulings. We consider the four theories in turn, viewing the facts material to each, when disputed, in the light most favorable to plaintiffs, the non-moving parties. Id. at 970.
I. The Employer/Independent Contractor Issue
FedEx, in addition to employing its own drivers and vehicles to deliver goods to its shipper-customers, contracts with independent motor carriers to transport goods and trailers between FedEx service centers. At times, these carriers provide the drivers, the tractors, and the trailers for this service. At other times, FedEx retains “subhaulers” that provide drivers and tractors to pull FedEx trailers in what FedEx refers to as a “power only” relationship. In mid-September 2007, Fresh Start and FedEx entered into a written Subhaul Agreement providing that Fresh Start would provide transportation services as an independent contractor. In an Addendum, Fresh Start agreed to comply with twelve detailed requirements when pulling FedEx-owned trailers on a “power only” basis. On October 26, Fresh Start‘s owner received a power-only assignment from FedEx‘s central dispatch and assigned
Under Nebraska law, one who employs an independent contractor is generally not liable for physical harm caused to another by the acts or omissions of the contractor or its servants. Plaintiffs’ complaint alleged that FedEx was nonetheless liable for Velichkov‘s negligence because he was acting as FedEx‘s employee or servant at the time of the accident. Whether a truck driver is acting as an employee or as an independent contractor “depends on the facts underlying the relationship of the parties irrespective of the words or terminology used by the parties to characterize and describe their relationship.” Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705, 711 (1997). Thus, the Subhaul Agreement, which provided that Fresh Start was an independent contractor, is relevant but not controlling. Though ordinarily a question of fact, “where the facts are not in dispute and where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law.” Id.
Applying the ten factors considered by the Supreme Court of Nebraska in Kime and other cases, the district court concluded that Fresh Start, and therefore its employee, Velichkov, were independent contractors of FedEx as a matter of Nebraska law. Addressing the critical control factor, the district court acknowledged that the Addendum to the Subhaul Agreement placed conditions on the manner in which Fresh Start and its servants could transport FedEx-owned trailers but concluded that these requirements “were to assure performance of the delivery—in other words, to control ‘the final result of the work’ instead of ‘the specific manner in which the work is performed.‘” Harris v. Velichkov, 860 F.Supp.2d 970, 983 (D.Neb.2012), quoting Omaha World-Herald v. Dernier, 253 Neb. 215, 570 N.W.2d 508, 514 (1997). In addition, the court reasoned, “plaintiffs’ focus on the element of control ignores the remaining nine factors listed above, several of which weigh (and weigh heavily) in favor of an independent contractor relationship.” Id.
On appeal, plaintiffs argue the district court erred in granting summary judgment on this issue because it misconstrued in FedEx‘s favor the extent to which FedEx controlled how power-only drivers performed this service. We disagree. The district court applied the proper standard under Nebraska law, carefully considered the control factor, and concluded “[t]here is no evidence from which a reasonable trier of fact could conclude that Fresh Start was FedEx‘s ‘employee‘—much less that Velichkov was.” Id. at 983-84. The minor ways in which plaintiffs argue the district court improperly credited FedEx‘s view of the facts were not material to this ruling. The use of an independent power-only contractor to pull FedEx trailers between FedEx service centers was not comparable to the agreement in Huggins v. FedEx Ground Package System, Inc., 592 F.3d 853, 859 (8th Cir.2010), where FedEx required an independent contractor and its drivers “to look and act like FedEx employees while they performed FedEx [package delivery] services” for FedEx customers.
II. The Nondelegable Duty Theory
The Supreme Court of Nebraska has recognized limited exceptions to the general rule that one who employs an independent contractor is not liable for harm caused by the contractor‘s employees.
Whenever... in this subchapter a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.
Whether a duty is owed under Nebraska tort law is a question of law. Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902, 909 (1993). The Supreme Court of Nebraska has not addressed whether the FMCSR—or any other federal regulations—create a nondelegable duty that regulated parties are liable for the harm caused by their independent contractors’ violations. Indeed, that Court “ha[s] never held that an administrative regulation can... expand the scope of tort liability beyond the general duty to exercise reasonable care.” A.W. v. Lancaster Cnty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907, 920 (2010).
The district court assumed without deciding that
On appeal, plaintiffs argue (i) FedEx is a “for-hire motor carrier” as defined in
In this case, FedEx retained Fresh Start to move goods from one service center to another. Fresh Start selected its drivers without FedEx oversight and operated under its own authority as a registered motor carrier, rather than under FedEx‘s authority. One need not refer to the definition of shipper elsewhere in the extensive FMCSR regulations to determine that FedEx was acting as a shipper in this transaction. As the Second Circuit commented in Lyons v. Lancer Insurance Co., 681 F.3d 50, 59 (2d Cir.2012) (emphasis added), cert. denied, 568 U.S. __, 133 S.Ct. 1242, 185 L.Ed.2d 178 (2013), “The shipper is the entity that purchases the transportation services of the carrier.” Because FedEx was not acting as a motor carrier, it had no duty—nondelegable or otherwise—to require that driver Velichkov observe his FMCSR duties by reason of
III. The Negligent Entrustment Theory.
Plaintiffs’ complaint alleged that FedEx was liable because it negligently entrusted its trailers to Velichkov. Under Nebraska law,
it is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in a manner as to create an unreasonable risk of harm to others.
DeWebster v. Watkins, 275 Neb. 173, 745 N.W.2d 330, 334 (2008), quoting Restatement (Second) of Torts § 308. In opposing summary judgment, plaintiffs argued that FedEx had control of trailers it owned; that FedEx had a duty under
On appeal, citing § 390 of the Restatement, plaintiffs argue that FedEx may be liable even though it entrusted its trailers to Velichkov indirectly through a third party, Fresh Start. But even if the Supreme Court of Nebraska would adopt this aspect of § 390, there was no evidence that FedEx was aware of facts permitting a reasonable jury to find that it knew or should have known Velichkov was not a properly certified driver. Thus, as the district court recognized, the negligent entrustment claim turned on whether FedEx as a “motor carrier” was duty-bound by
IV. The Unpleaded Claim—Negligent Hiring of Fresh Start
Count V of plaintiffs’ complaint alleged that FedEx negligently hired and trained Velichkov to operate the tractor-trailer, a claim foreclosed by the district court‘s determination that Velichkov was an employee of an independent contractor, Fresh Start. The court‘s scheduling order allowed the parties until April 9, 2010 to file motions to amend their pleadings. After the scheduling order was amended four times to extend the discovery deadlines, on November 30, 2011, plaintiffs moved for leave to amend their complaint to add allegations that (i) FedEx knew or should have known of Mickey‘s poor safety rating and Fresh Start‘s association with Mickey‘s, and therefore (ii) FedEx negligently hired, trained, supervised, and entrusted its trailers to independent contractor Fresh Start. Plaintiffs argued that these amendments were meant to “clarify” that their claims of negligence extended to FedEx‘s relationship with Fresh Start as well as driver Velichkov. The district court denied the motion for leave to amend for two reasons. First, the proposed amended complaint “would add an entirely new theory of recovery.” Second, “more to the point,” Rule 16(b)(4) of the Federal Rules of Civil Procedure requires a showing of good cause to amend outside the court‘s scheduling order, and “nothing in the plaintiffs’ briefs explains, or seeks to explain, why they only sought leave to amend their complaint over 17 months after the deadline for doing so had passed.” Harris v. Velichkov, Order of Feb. 21, 2012, at 2-3.
On appeal, plaintiffs concede that
“The primary measure of good cause is the movant‘s diligence in attempting to meet the [scheduling] order‘s requirements.... Our cases reviewing
The judgment of the district court is affirmed.