United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge
are the plaintiffs’ motion for summary judgment on all
of their claims and the defendants’ motion for partial
summary judgment which challenges some claims individually.
Both motions were filed on May 7, 2018.
action arose from a traffic accident that occurred on the
morning of Tuesday, May 13, 2014, in which plaintiff Larry
Thomas (“Thomas”) was injured. At the time of
these events, Thomas was driving a tractor trailer for his
employer Brenntag while proceeding northbound on I-79. Ex. 7
to Pffs. Mot., Thomas Statement and Drawing (“Thomas
Statement”); Pffs. Memo. at 2. He had just passed the
Big Chimney exit north of Charleston, West Virginia, when his
vehicle, which had a height of 13’6” and did not
require a special permit, struck and brought down an
Appalachian Electrical Power Co. (“AEP”) cable
that was sagging below its established height. Id.
Moments after he stepped out onto the roadway “to
assess the damage,” Thomas suffered injuries from that
cable when it was hit by a passing red pickup truck and
entangled him. Id.
electric cable sagged so dangerously low as a result of an
immediately preceding traffic occurrence that involved the
defendants, namely, the trucking company Northwest and its
two employees, Stephen McCutcheon and Jeffrey Glass, who were
driving separate vehicles. Deposition of Austin Helm
(“Helm Dep.”) at 46. Unlike Thomas who drove
locally, the Northwest drivers were hauling their wares over
a long distance and were driving, also north on I-79, with
single trip permits for oversized loads. Deposition of
Stephen McCutcheon (“McCutcheon Dep.”) at 15. In
particular, the height of their loads was 15’6”
and the width was 12’. Deposition of Jeffrey C. Glass
(“Glass Dep.”) at 13. McCutcheon drove his
oversized load in front, and Glass followed. Id. at
20. By virtue of their oversized status, each of them was
accompanied by two pilot cars, one in front and one in back.
order to alert the Northwest drivers to possible overhead
obstructions, the pilot car in front of each of the two
trucks was equipped with a high pole rising about two to six
inches above the height of the oversized load, which put the
pilot’s overall clearance height at between
15’8” and 16’. Id.; McCutcheon
Dep. at 17; Deposition of Mitchell Gerlaugh (“Gerlaugh
Dep.”) at 16. Mitchell Gerlaugh drove the lead pilot
car, which was the first vehicle in the Northwest convoy to
approach what became the accident scene, between mile markers
8 and 9. Compl. at ¶ 5; Gerlaugh Dep. at 16. Gerlaugh
had seventeen years of experience. Gerlaugh Dep. at 17.
traveled a quarter to a half mile in front of
McCutcheon’s load, according to himself, and
three-quarters of a mile in front, according to McCutcheon.
Gerlaugh Dep. at 17; McCutcheon Dep. at 25. There was clear
communication among all the members of the escort group on
channel 23 of the radio. Gerlaugh Dep. at 20. The trouble
came from overarching cables suspended from poles, consisting
of a fiber optic cable owned by Windstream Communications and
the electric AEP cable. Gerlaugh testifies that his high pole
tipped the fiber optic cable, almost two feet down (i.e.,
well below McCutcheon’s clearance). Gerlaugh Dep. at
21. Upon this contact, Gerlaugh says that he notified
McCutcheon by radio and “to my recollection, I informed
him that the way the wire was sagging, it was higher to the
right. And if he had gone – to go right to the
shoulder.” Id. at 21.
in what plaintiffs regard as a self-serving false
recollection, tells a different story. He remembers Gerlaugh
telling him over the radio that the wire looked “a
little low to the right” but that Gerlaugh had
nonetheless cleared it with his pole and had suggested that
McCutcheon might want to move over to the fast lane.
McCutcheon Dep. at 24. Moreover, McCutcheon recalls that
Gerlaugh told the drivers on the radio “that we were
fine” and “to not worry about it.”
Id. at 23, 25. In his pilot car’s rearview
mirror, Gerlaugh saw that McCutcheon was driving in the
opposite lane of the one he says he had advised but did not
have time to inform McCutcheon of the error before the latter
struck the wire. Gerlaugh Dep. at 63. On cross-examination,
Gerlaugh admits that while he had helped spot an obstacle by
stopping his pilot car in the past, he did not stop on that
occasion, nor did he instruct anyone else to stop.
Id. at 54. Instead, he remembers informing
McCutcheon that he had tipped the wire with his pole and that
it “was higher on the right,” at which point it
became “up to him, my driver, to ascertain what he
needs to do to clear that obstruction.” Id. at
says he drew some false comfort from having driven this very
route only three days earlier, presumably without tipping the
Windstream cable. McCutcheon Dep. At 26. He testifies that he
also had difficulty visually ascertaining that the cable was
too low for his load to clear. Id. In addition,
McCutcheon was aware that a lot of other oversized loads were
passing through that stretch of the highway to serve the
burgeoning oil and natural gas industry in the northern part
of the state. Id. at 42-43.
struck the cable, at a speed of 55 to 60 miles per hour.
Id. at 27. While plaintiffs maintain that
McCutcheon’s load struck the Windstream cable, Pffs.
Memo. at 5-6, McCutcheon remembers hitting the “power
line,” McCutcheon Dep. at 24, 27. His back pilot car
driver, following a mere car length behind, reported that
McCutcheon’s truck “ripped . . . down” the
cable, which struck McCutcheon’s back pilot car.
Id. Glass, traveling between one-half and
three-quarters of a mile behind McCutcheon but on the same
collective radio transmission, heard the same report,
presumably from McCutcheon’s back pilot driver,
“You took it down. You hit the wire. You hit the
wire.” Glass Dep. at 21. By the time Glass approached
the treacherous wires, the Windstream cable was on the ground
and the AEP cable came to sag dangerously low because the
poles, from which both cables were suspended, became
destabilized by the impact of McCutcheon’s truck. Glass
Dep. at 21; Pffs. Memo. at 5-6.
came to a halt on the right side of the highway (not quite
able to fully position his oversized truck in the shoulder
before he had to stop because of the obstacle posed by the
wires) and was “sitting there determining what to do
next, because we still had a very little wire hanging over
the interstate . . .” Glass Dep. at 21-22. At that
time, Thomas approached in his truck and switched into the
left (passing) lane, unaware of the danger. Thomas Statement.
When Thomas’s vehicle struck the AEP cable, he was
situated between Glass’s truck and Glass’s
accompanying pilot car. Deposition of Larry L. Thomas of
October 3, 2016 (“Thomas Dep. I”) at 68; Thomas
Statement. Thomas then pulled over onto the shoulder to
assess the situation. Id. Thomas says that he did
not see the hanging AEP cable before he hit it, Thomas Dep. I
at 67, a circumstance plaintiffs appear to attribute to the
visual obstruction from Glass’s trailer that Thomas was
passing on the left, Pffs. Memo. at 6. Thomas’s impact
tore down the AEP cable. Thomas Statement; Glass Dep. at 22.
time Thomas pulled onto the shoulder, he was
“approximately half of a football field or more in
front of the [back] escort pilot truck.” Thomas
Statement. Right after he exited his cab, he noticed an
oncoming red pickup truck and started waving his arms in an
unsuccessful attempt to get the driver’s attention.
Id.; Thomas Dep. I at 69-70. The pickup struck the
cables that lay sprawling in the middle of the highway and,
as it proceeded forward, entangled one or both of them around
Thomas, who was standing at the driver’s side of his
vehicle, and “tossed” him up in the air.
Id.; see also Glass Dep. at 23 (reporting
that from the conversation with the red pickup driver, Glass
understood that the wire “pulled tight around [Thomas]
and . . . threw him in the air and then back down on the
shoulder in front of his truck”). As a consequence,
Thomas had trouble moving and lay bleeding on the shoulder of
the highway, as the red pickup truck driver came to render
assistance. Thomas Dep. I at 73-74.
called his home base at Brenntag in St. Albans, West Virginia
at 9:58 a.m. and informed Mike Stepp (perhaps a coworker or a
supervisor) that he would be calling 911. He did so at 10:01
a.m. and was taken to the hospital when emergency services
personnel arrived. Thomas Statement.
after the accident and before the paramedics came, McCutcheon
drove in his lead pilot car back to the scene, to join Glass,
Glass’s pilot car drivers, and the pickup driver, with
all concerned about the state of the badly injured plaintiff.
McCutcheon Dep. at 28-30; Glass Dep. at 24. The recollections
of those fast-paced events are understandably murky, but in
any event Thomas remained conscious, and everybody stayed at
his side, as they were waiting for outside help. According to
McCutcheon’s testimony, some thirty minutes may have
elapsed before the ambulance arrived. McCutcheon Dep. at 31.
Neither of the Northwest oversized load drivers remembers
personally calling Brenntag but each believes that
“someone else” did. Glass Dep. at 26; McCutcheon
Dep. at 30. McCutcheon recalls that “we called to find
out what they were going to do with his truck” and were
told to lock it up and leave it there for someone from
Brenntag to retrieve. McCutcheon Dep. at 35.
“Somebody” also called 911. Glass Dep. at 24;
McCutcheon Dep. at 30. Then McCutcheon called 911 a second
time to “make sure that they were sending a
trooper.” McCutcheon Dep. at 30. From Thomas’s
statement, we know that he called both his employer Brenntag
and 911 himself. Thomas recalls the “oversized
load” giving him “assistance.” Thomas Dep.
I at 74.
Trooper Steven Demaske, by himself, arrived shortly after the
ambulance. McCutcheon Dep. at 31-32. He adopted what the
Northwest crew regarded as a somewhat unusual tack. First,
McCutcheon “explained to him everything, the incident,
how it took place, asking him what he needed from me as far
as my paperwork or my driver’s license or
anything,” but Demaske “never even got out of the
car, never asked me for nothing.” McCutcheon Dep. at
32. Trooper Demaske did ask for McCutcheon’s
load’s height but did not request any documentary
confirmation of the answer. Id. at 33. “[H]e
said, well . . . it was just an act of God or an act of
nature that this happened. There’s nothing really to be
done about it. So - and he left, and that was it,”
vividly remembers McCutcheon. Id. at 32. Glass
Steve McCutche[o]n was talking to the highway patrol officer.
I . . . walked over and was talking to the highway patrol
officer with Steve. . . . [A]ll he asked us was if we were en
route, what height was on our permit. . . .
[H]e says, Aren’t they [overhead wires] supposed to be,
like, 18 or 20 foot, you know, high?
And we said, Yeah, something like that.
And he said, Well, it sounds like a power company problem to
me. You guys are good to go.
Glass Dep. at 25. See also Gerlaugh Dep. at 48
(“Well, [Trooper Demaske] pulled up, asked us what had
happened. And we explained what had transpired. And he just
basically said, well, it was an act of God that the wire was
that low on the highway. Nobody was at fault. We could carry
on, go our way.”). McCutcheon says he was
“floored that [Trooper Demaske] doesn’t even ask
any questions or show any concern.” McCutcheon Dep. at
the Northwest drivers proceeded on their journey, Glass
called Austin Helm, Northwest’s health, environmental,
and safety manager based in Tulsa, Oklahoma. Glass Dep. at
24-25. McCutcheon also called Helm even before the ambulance
and Demaske came, and then called him back afterwards to
report the conversation with the trooper. McCutcheon Dep. at
32, 35. Initially, Helm asked McCutcheon to fax him all the
paperwork the state trooper would give him, of which there
was none. Id. at 35. For his part, Helm testifies
that he neither recorded his conversations with the drivers
about the incident, nor completed any accident or incident
report about it, nor preserved or reviewed any trip notes,
logs, or other material. Helm Dep. at 43. In a similar vein,
John Mefferd, the operations manager for the heavy haul
division of Northwest, testifies that until Northwest was
subpoenaed by the plaintiffs, he was unaware of the facts and
circumstances of the event other than Trooper Demaske’s
clearance and that the company did not take any further
action regarding the incident. Deposition of John Mefferd
(“Mefferd Dep.”) at 20; Pffs. Memo. at 8, 16;
Helm Dep. at 12.
initially brought this lawsuit against a number of parties,
including Windstream but not the present defendants, on March
21, 2016. On June 9, 2017, with the court’s permission,
plaintiffs filed an amended complaint, which added Northwest
and its two drivers of the oversized loads. Plaintiffs
represent that they “were not aware of the involvement
of Northwest and its drivers when the original complaint was
filed, even though they had gone to extensive lengths to
identify any persons that were involved.” Pffs. Memo.
at 9. Over the course of this litigation, the other
defendants have been dismissed; notably, Windstream settled
and was dismissed on January 12, 2018.
Causes of action
the dismissal of all other defendants, the surviving causes
of action in the amended complaint include claims of
negligence against McCutcheon (Count VIII), failure to warn
against Glass and McCutcheon (Count IX), negligence per
se against all (Count X), vicarious liability against
Northwest (Count XI), negligent hiring, training, and
supervision against Northwest (Count XII), and negligent
infliction of emotional distress against all (Count XIII).
Plaintiffs also request punitive damages (Count XVI).
the plaintiffs’ motion asks for summary judgment on all
claims, defendants move for summary judgment on the claims of
failure to warn (Count IX), negligence per se (Count
X), negligent hiring, training, and supervision (Count XII),
and negligent infliction of emotional distress (Count XIII),
as well as on punitive damages (Count XVI).
is entitled to summary judgment “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). Material facts
are those necessary to establish the elements of a
party’s cause of action. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
judgment is inappropriate if the evidence is sufficient for a
reasonable fact-finder to return a verdict in favor of the
non-moving party. Anderson, 477 U.S. at 248. Even if
there is no dispute as to the evidentiary facts, summary
judgment is also not appropriate where the ultimate factual
conclusions to be drawn are in dispute. Overstreet v. Ky.
Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
initial argument is that the discovery rule should apply to
toll the accrual of the statute of limitations until at least
September 22, 2016, when Windstream filed its motion for
leave to file a third-party complaint against John Doe
Trucking Company (whose identity later came to be established
as Northwest). Pffs. Memo. at 11. Plaintiffs argue that given
the dearth of records, they had no reason to know of
Northwest’s involvement until then. If the applicable
two-year statute of limitations were so tolled, the
plaintiffs’ action against the Northwest defendants,
which was brought by the amended complaint ordered to be
filed on June 9, 2017, would be timely. Id. In
support of their position on the discovery rule, plaintiffs
advance two separate, alternative arguments: (1) that they
did not know and should not have known about the cause of
action against these defendants until September 22, 2016, and
(2) that these defendants fraudulently concealed their
identities, preventing their discovery by the plaintiffs.
from the gateway issue of the statute of limitations,
plaintiffs argue that there is no genuine issue of material
fact regarding all their claims and ask the court to find the
Northwest defendants negligent as a matter of law.
Id. at 18-20. They do not extensively elaborate this
argument for summary judgment by cause of action, focusing
rather on the discovery rule that may, or may not, toll the
applicable statute of limitations in this case. As will be
seen, the court does not need to decide at this stage whether
there is a genuine dispute of material fact on the negligence
claims (although defendants maintain that there is such a
dispute and argue that the defendants acted reasonably, Defs.
Resp. at 7-10). Moreover, it would be unusual for a plaintiff
to prevail on a claim of negligence as a matter of law, on
summary judgment, in a case such as this.
object to granting summary judgment to the plaintiffs on any
claims because they argue that these claims are time-barred
by the applicable statute of limitations of two years for
personal injury actions established by W.Va. Code §
court analyzed the discovery rule issue in its opinion and
order granting the motion to amend the complaint on June 9,
2017, over Windstream’s opposition (ECF No.
106). At the time, the court observed that a
number of failures combined to prevent plaintiffs from
learning about the Northwest defendants earlier, namely, the
failure of Trooper Demaske to file a report, the failure of
McCutcheon and Glass to provide their contact information to
Thomas in what plaintiffs allege was a violation of W.Va.
Code § 17C-4-3 (duty to give contact information and
render aid), and the failure of Helm to file a report of the
accident as required by the Federal Motor Carrier Safety
Regulations (“FMCSR”), 49 C.F.R. § 390.15.
Accordingly, on June 9, 2017, the court stated,
“Considering the alleged failures of Northwest to
properly report its involvement, and Windstream’s
failure to disclose the identities of Trawick and Madison,
the court finds that questions of fact exist as to whether
plaintiffs’ claims against Northwest, Madison, and
Trawick are time-barred.” ECF No. 106 at
court’s previous analysis, and the parties’
submissions, are naturally guided by West Virginia’s
law on the application of the statute of limitations and its
possible tolling through the operation of the discovery rule.
The West Virginia Supreme Court has explained this
application as follows, enunciating a five-step test:
We further hold that under the discovery rule set forth in
Syllabus Point 4 of Gaither v. City Hosp., Inc.,
supra, whether a plaintiff “knows of” or
“discovered” a cause of action is an objective
test. The plaintiff is charged with knowledge of the factual,
rather than the legal, basis for the action. This objective
test focuses upon whether a reasonable prudent person would
have known, or ...