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England v. J.B. Hunt Transport Services, Inc.

United States District Court, S.D. West Virginia, Charleston

May 30, 2018

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.



         This is a suit for civil recovery under a “deliberate intent” exception to immunity from civil liability under West Virginia Code § 23-4-2(d)(2).

         Pending 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.

         Fundamental 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.

         49 C.F.R. § 392.3.

         I. Facts

         Dwane 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.

         Just before 9:50 p.m. (CST)[1] 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.

         England, 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. Id.

         In the early afternoon on Friday, February 13, England picked up a PPG load in Chester, South Carolina.[2] 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.[3] Pffs. Ex. 13, PPG Bill of Lading.

         JB 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.

         At the 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.

         The 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.

         An 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[4] 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.

         Schoenfelder 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.

         England posted a message at 5:05 p.m. on Saturday, “where am i inbound to.”[5] 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.

         Even if 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. Id.

         Early 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.

         While 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.

         Accordingly, 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, [6] 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.

         Anglin 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 Message Log.

         Anglin 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.

         After 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.”[7] 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. 234.

         To 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 1706[8] 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 head home.

         MCR at 2; Pffs. Br. at 10.

         Anglin 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).[9] 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. 316.

         Anglin 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.

         Anglin 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 case:

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 ...

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