United States District Court, S.D. West Virginia, Charleston
DWANE E. ENGLAND and REBECCA ENGLAND, his wife, Plaintiffs,
J.B. HUNT TRANSPORT, INC., a wholly owned subsidiary of J.B. HUNT TRANSPORT SERVICES, INC., Defendant.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE.
a suit for civil recovery under a “deliberate
intent” exception to immunity from civil liability
under West Virginia Code § 23-4-2(d)(2).
before the court are the parties' cross-motions for
summary judgment: the plaintiffs filed theirs on November 12,
2017, and the defendant followed on November 14, 2017. For
the reasons set forth below, both motions are denied.
to the resolution of this case is the following federal
regulation which is partially quoted:
No driver shall operate a commercial motor vehicle, and a
motor carrier shall not require or permit a driver to operate
a commercial motor vehicle, while the driver's ability or
alertness is so impaired, or so likely to become impaired,
through fatigue, illness, or any other cause, as to make it
unsafe for him/her to begin or continue to operate the
commercial motor vehicle.
C.F.R. § 392.3.
E. England (hereinafter England), who resides in Goldtown,
Jackson County, West Virginia (not far from Ripley), was
employed as an over-the-road tractor-trailer driver for J.B.
Hunt Transport, Inc. (hereinafter JB Hunt), a Georgia
corporation and a wholly owned subsidiary of J.B. Hunt
Transport Services Inc., an Arkansas corporation which is a
holding company. JB Hunt has a transportation agreement with
PPG Industries Inc. (hereinafter PPG) (Pffs. Ex. 1). Indeed,
the JB Hunt dispatch operated out of the PPG building in
Pittsburgh. England was assigned to the PPG account as one of
about eighty dedicated drivers. Dep. of Nathan A. Anglin at
p. 39-40. When he was not on the road, England kept his
tractor-trailer parked in a secure location at a truck stop
off the Ripley/Fairplain exit on I-77, about ten miles from
his Goldtown residence.
before 9:50 p.m. (CST) on Sunday, February 15, 2015, while on his
way home, England, who was ill, apparently lost control of
the vehicle near mile marker 137 on I-77, about five miles
away from the Ripley/Fairplain exit. Pffs. Ex. 27, Major
Collision Review (“MCR”), at 3; West Virginia
Uniform Traffic Crash Report at 1; Pffs. Br. at 11. England
took his foot off the gas pedal, and, as the truck turned
onto the highway shoulder, its speed steadily fell. MCR at
2-3. Then the truck hit a rock bed and overturned back onto
the highway, causing England severe injuries, including the
loss of his left arm above the elbow, punctured lungs, and
several broken ribs. MCR at 2. In addition, England lost his
memory of recent events that preceded the accident. Dep. of
Dwane E. England at pp. 12, 103. His last memory before the
accident dates back to several days prior. Id. at
pp. 12-13. He does have a couple of memories of that which
occurred soon after the crash, including one of talking to
the state trooper who came to the scene, but not memories of
events that constitute this factual narrative. Id.
at p. 103.
who was born in 1955, is an experienced truck driver. Serving
in the United States Air Force between 1975 and 1995, he
received training on how to operate a tractor-trailer.
England Dep. at pp. 20-22. Upon his return to civilian life,
England worked at JB Hunt from 1995 to 2006 and again from
2011 until the accident. Between 2006 and 2011, he was
employed as a truck driver by another company. MCR at 2. At
the time of these events, England had driven 1.9 million safe
miles with JB Hunt, and had not been involved in prior
preventable collisions with the company. Id. When a
driver reaches the 1 million safe mile mark, JB Hunt
recognizes his accomplishment with a bonus. Anglin Dep. at p.
164. That may also be true of the 2 million mile mark.
early afternoon on Friday, February 13, England picked up a
PPG load in Chester, South Carolina. The shipment was an export
of glass fiber yarn destined to go to RM2 Canada, Inc. in
Woodbridge, Ontario, to be delivered there on Monday,
February 16. Pffs. Ex. 13, PPG Bill of Lading.
Hunt's dispatch log on Saturday, February 14 initially
displayed England's destination as “HAVON”
(which refers to Havelock, Ontario). Pffs. Ex. 6, Dispatch
Log; Dep. of Jamie Kleemook at p. 50. As Jamie Kleemook, JB
Hunt's General Manager for the PPG account, testifies,
the “HAVON” location denotes the “T-call
[termination point] of the current load.” Kleemook Dep.
at p. 50. The court notes that Woodbridge is a suburb of
Toronto and that Havelock is about 105 miles to the
northeast, between Toronto and Ottawa.
same time, Kleemook “vaguely recall[s]” that
“the original order was scheduled to go to somewhere in
Cleveland.” Id. at p. 51. On Friday, John
Appod, logistics coordinator at JB Hunt (whose job duties
constitute planning routes for various PPG loads), redirected
it to Niles, Ohio (which the court notes is some 67 miles
east of Cleveland; neither of those two points in Ohio is
exceptionally far off the route to Woodbridge). Id.;
Anglin Dep. at p. 32.
parties differ on the original route England was supposed to
follow, before Appod's action. On the one hand,
plaintiffs contend that England was supposed to take the load
all the way to Woodbridge. Pffs. Resp. at 3. In addition to
the bill of lading, the dispatch entry at 11:51 a.m. on
February 13 corroborates this account. Pffs. Ex. 28. On the
other hand, JB Hunt maintains that England was only supposed
to haul the Woodbridge-bound load as far as the JB Hunt yard
in Niles, Ohio, and another driver would then transport it
the rest of the way. Kleemook Dep. at 51 (“Appod [ ]
needed the driver to drop the load at Niles, Ohio and then
continue on to the Canadian shipment.”); JB Hunt Br. at
3. The company claims that England was supposed to drive his
empty trailer up to Havelock, Ontario, where he would pick up
a new load and take it to Houston, Texas. Anglin Dep. at p.
283; JB Hunt Resp. at 3.
evidentiary haze surrounding England's fateful trip
persists beyond the initial itineraries. Evidence from the JB
Hunt computer systems for Saturday, February 14, supports the
drop-off location of the Chester load at the company's
yard in Niles, Ohio. Dispatch Log. The dispatch message from
the Operation Supervisor on duty, Grant Schoenfelder, at 4:07
p.m. on Saturday stated that England “requested to
call, ” which caused Schoenfelder to show England in
the system as being at the Niles “yard” in order
to give England credit for “full miles, ” i.e.,
for pay-related purposes, even though he had not yet dropped
off the shipment as of that time. Dispatch Log. Otherwise,
the subsequent plan appears ambiguous. In fact, there is
support for two apparently inconsistent alternatives
following the drop-off - in one version England was supposed
to drive to Canada, and in the other he would instead return
to Ripley, West Virginia.
also dispatched England on the next plan that England was to
follow. Dispatch Log. An onboard computer (“OBC”)
message at 4:06 p.m. confirms the following plan, namely, the
Havelock to Houston itinerary. Pffs. Ex. 7, OBC Message Log
at 3. Yet, the accompanying 4:06 p.m. entry in the dispatch
log read “NILOH ERIPWV” (for Niles, Ohio, and
then empty to Ripley, West Virginia) and not “NILOH
HAVON.” Dispatch Log; Dep. of Grant S. Schoenfelder at
pp. 54, 91. Schoenfelder acknowledges that the “NILOH
ERIPWV” entry bears his initials, “GSC.”
Dispatch Log; Schoenfelder Dep. at p. 92. Nevertheless,
Schoenfelder recalls routing England not to Ripley after
Niles but to Havelock. Schoenfelder Dep. at p. 92.
Schoenfelder attributes this decision to re-route England to
a “message I received from Dwane earlier that
day.” Id. at p. 54. But the content of the
message so received is not disclosed. Indeed, according to
Schoenfelder, England and he exchanged “some messages
back and forth” on Saturday, pertaining to
England's request for the T-call, i.e., early termination
of the route and reloading of the cargo. Schoenfelder Dep. at
p. 46. The OBC log that is available as Pffs. Ex. 7, which
starts on Saturday morning with a weather-related fleetwide
message, does not contain any such messages.
posted a message at 5:05 p.m. on Saturday, “where am i
inbound to.” OBC Message Log at 5. At 5:42 p.m.
Schoenfelder noted that he “T called” England but
it is not clear what point the destination was changed to,
inasmuch as the entirety of the message is not furnished to
the court. Id. at 1. England then followed up at
5:50 p.m., “i didn't know that was this load for
niles, thought it was the havelock on load. i have never seen
a preload trl at havelock on.” Id. at 6.
England parked after a day's driving at a truck stop in
Ringgold, West Virginia, near Morgantown. Id. at 8.
At 5:58 p.m., he notified JB Hunt, in what is the first
communication of his illness to JB Hunt in evidence, that he
“was pretty sick” and so “stopped a little
early” and planned to rest the following day and resume
driving on Monday. Id. As with all OBC messages,
this message carried a location stamp, which in this case
indicated “Ringold” (sic) and
“Morgantown.” Id. There was no response
to that message inasmuch as Schoenfelder sent a sign-off
message at 5:52 p.m. Schoenfelder Dep. at p. 53; OBC Message
Log at 1, 7.
JB Hunt first received notice of his illness at that time,
England had been ailing before then. He had sent an SMS
message to his wife at 6:43 p.m. (perhaps, EST) on Thursday,
which would have been the evening before he picked up the
load in Chester, South Carolina, indicating that he thought
he was coming down with something that “[f]eels like
the flu.” Pffs. Ex. 14, England's SMS Message Log.
Around Saturday evening, England again texted his wife,
complaining of intense pain, apparently from hemorrhoids, as
well as a cold-like condition. JB Hunt Ex. A at 2.
“Still have fever and ache all over. Took
Tylenol's, ” he wrote. Id. He also
conveyed to her the same determination to rest on Sunday and
not to drive till Monday that he had communicated to JB Hunt.
on Sunday morning, England sent two more text messages on the
company's OBC system, one at 6:16 a.m. emphatically
stating that he was “so sick i will not be able to go
anywhere today” and another at 7:02 a.m. requesting a
“REPOWER FOR THIS LOAD AND THE PPLAN” (a repower
refers to another driver taking the load, and the pre-plan
refers to the Havelock trip, or any other trip following the
current one) so that he could go home and see his doctor. OBC
Message Log at 1, 9, 10. All three messages (at 5:58 p.m. the
previous evening and 6:16 and 7:02 a.m. that Sunday morning)
were “claimed” at 8:51 a.m. by the Sunday
manager, Nathan Anglin, who may have electronically
acknowledged their receipt. Anglin Dep. at p. 31.
Anglin claimed the Sunday messages at 8:51 a.m. (i.e., 9:51
a.m. EST), the receipt of the 5:58 p.m. message is marked in
the dead of night, at 02:20 a.m. on Sunday. OBC Message Log
at 1; Anglin Dep. at p. 30. Anglin does not know whether
Schoenfelder had also seen the 5:58 p.m. message (which, as
noted, came after his fleetwide sign-off message at 5:52
p.m., not to mention the end of his shift). Id. at
p. 211. Anglin's shift began at 8 a.m. CST, and he worked
out of what might be called a field office in Columbus, Ohio,
rather than the PPG building in Pittsburgh, which hosted the
bulk of JB Hunt's operation (including Schoenfelder).
Id. at pp. 30, 211.
on Sunday morning, when Anglin arrived, he was in receipt of
three successive messages from England - at 5:58 p.m. on
Saturday and at 6:16 and 7:02 a.m. early on Sunday morning -
in which he reported a physical inability to continue driving
and requested relief so that he could go home and see his
doctor. That was soon followed by the note in the dispatch
log at 8:52 a.m. on Sunday stating that the driver advised
that he was “to [sic] sick to run this load.”
Dispatch Log. Anglin, who was apparently leaving open the
possibility that he created that note,  says that it
“probably” referred to the Havelock load, and not
to the load England was in fact transporting. Anglin Dep. at
pp. 228, 231.
took no other action, however. Significantly, he acknowledges
that the OBC messages, standing alone, would indicate that
England should not be allowed to drive anywhere. Id.
at p. 301. But “the deadhead that I saw and his
location and the confusion on the load” changed
Anglin's view. Id. As he explains, “When
Grant did the T-call Saturday, it teases - it tricks the
computer into thinking he's in Niles so he gets paid for
those miles. So when I would have seen that on Sunday, it
would have looked like he was originating from Niles, not
Morgantown, West Virginia.” Id. at p. 47.
Although the dispatch log shows that the location (presumably
automatically) updated from Havelock to Niles at the time of
the 4:06 p.m. T-call, not only did the accompanying note
clarify that England had yet to travel to Niles, but as early
as 2:44 a.m. on Sunday morning, next to a note of the
driver's location, the location field correctly displayed
“RINWV” for Ringgold; moreover, OBC messages are
always marked with correct locations. Dispatch Log; OBC
says he did not want to overrule Schoenfelder,
notwithstanding the new messages, “[b]ecause the
deadhead, to me at the time, would have said that Grant would
have had to have known something and probably set something
up with Dwane.” Anglin Dep. at pp. 301-02. Indeed,
Anglin assumed that England's being sick caused
Schoenfelder to enter the deadhead. Id. at p. 303.
In the meantime, Anglin sent out two fleetwide safety
messages. OBC Message Log at 1.
several hours went by on Sunday without reply from Anglin,
England followed up with additional messages. At 12:34 p.m.
he wrote, “NATHAN ANY WORD ON WHAT IS GOING TO HAPPEN.
I CANNOT FINISH THIS LOAD. I AM REALLY REALLY SICK AS SAID IN
THE OTHERS [sic] MESSAGES. I JUST HAVE TO GET TO MY DOCTOR,
” and at 12:35 he wrote that he was still “UNDER
THE LOAD GOING INTO CANADA.” OBC Message Log at 11, 12.
Anglin finally replied at 12:43 p.m. that JB Hunt did not
have anyone to repower the load and added, somewhat
cryptically, “YOU HAVE TO DO WHAT YOU HAVE TO
DO.” Id. at 13. Before he reached the
conclusion that a repower was not feasible, Anglin did not
discuss the matter with anyone else. Anglin Dep. at pp.
238-39. He does not remember “what context”
accompanied his message; but he says that the exhortation to
“do what you have to do” referred to JB
Hunt's “captain of the ship” approach whereby
the driver can stop for safety reasons without management
second-guessing his decisions. Id. at p. 243. In
response, England messaged at 1:01 p.m., “OK GOT YA,
GOING TO DROP THIS LOAD NILES YARD, AND THEN HEAD HOME,
” and again at 1:24 p.m., “I AM HEADED TO NILES
YARD TO DROP.” OBC Message Log at 2, 14, 15.
“What load?” replied Anglin at 1:43 p.m.
Id. at 16. As noted, he says he thought in the
morning that England was empty already, en route to Ripley,
after having dropped off the load in Niles. Anglin Dep. at p.
clear up matters, Anglin called England at around 1:45 p.m.
on the phone. Id. at 17. The conversation made clear
that England had not yet dropped off his load at Niles.
Accordingly, after the call, Anglin became “aware that
[England] was headed to Niles” with the load. Anglin
Dep. at pp. 252, 314. A subsequent JB Hunt collision review,
which, according to plaintiffs, was prepared by Kleemook,
contains this description of the call:
On Saturday 2/14/2015 Dwane sent an OBC message at
stating that he was not feeling well and he did not want to
take dispatch on his next load. Dwane was on break at the
time and did not move his truck until he spoke with the
Sunday morning manager. When the Sunday morning manager spoke
with Dwane, he stated that he was not feeling well and wanted
to drive home to get the proper rest. The manager instructed
Dwane to head to the yard, drop off his current load, and
2; Pffs. Br. at 10.
disputes the claim that he “instructed” England
to do anything during their conversation. Anglin Dep. at pp.
252-53 (“I didn't tell him to do anything. . . . We
came to the agreement that . . . he was - that we would drop
the load at Niles, and he would go home.”). In
addition, Anglin appears to say, contrary to the collision
review, that England had begun driving to Niles even before
Anglin called around 1:45 p.m. Id. at p. 252. Anglin
rejects the implication that he insisted on England
proceeding to Niles in order to deliver the load on time,
i.e., for JB Hunt's economic gain (e.g., to avoid the
late payment to PPG, among other
repercussions). In his mind, it would not have mattered
much whether the load “was sitting in Morgantown, or
whether it was sitting in Niles.” Id. at p.
did not ask England about the nature of his illness.
Id. at p. 257. In addition, Anglin undertook no
efforts to arrange for other transportation to take England
home where he could see his family doctor, or to another
medical facility. Id. at pp. 243, 302. Anglin,
however, recalls that during their 1:45 p.m. phone
conversation, yet again, England probably expressed a wish to
see his doctor in West Virginia. Id. at p. 292.
Pertinently, Anglin knows the federal laws and regulations
against impaired driving, namely, that he could not permit
someone to drive if that person was too ill to drive.
Id. at pp. 257, 295. Indeed, Anglin recalls the
safety department at JB Hunt “preach[ing]” the
federal requirements “quite a bit.” Id.
at p. 116. In his words, without a leading prompt, Anglin
states the federal rule as follows, “If a driver is
unsafe or unfit to drive, he can't drive the
truck.” Id. At the same time, Anglin says that
he does not know of a distinct JB Hunt policy that applies in
such circumstances. Id. at p. 89.
testifies that, notwithstanding his receipt of England's
messages, he at no point held the belief that England was too
sick to drive “at all.” Id. at p. 284.
In their phone conversation, Anglin says that England did not
communicate such total inability to drive. Id. at p.
283. And, on the phone, Anglin picked up no signals or cues
that England might be impaired so that it was unsafe for him
to drive. Id. at pp. 284-85. In particular,
England's speech was coherent and similar to that on past
occasions. Id. at p. 285. Accordingly, Anglin could
discern no reason “to doubt the ability” of
England to decide whether he could drive. Id. at p.
284. Moreover, Anglin inferred from the deadhead that
Schoenfelder had already determined that England was in a
position to drive home. Id. at p. 305. Consequently,
Anglin concluded that England was “safe” to
execute the plan of driving to Niles to drop off the load
that the two of them agreed upon. Id. at p. 316. The
colloquy between plaintiffs' counsel and Anglin at
Anglin's deposition merits reproducing here, in light of
the language of the federal statute and the nature of the
Q. [Plaintiffs' counsel] Okay. So the decision was made
by you - as an employee of J.B. Hunt, in the position you
hold - you permitted Mr. England to drive to Niles, Ohio, and