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Thomas v. Northwest Concrete Products, Inc.

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

July 23, 2018

LARRY THOMAS and SANDY THOMAS, his wife, Plaintiffs,


          John T. Copenhaver, Jr. United States District Judge

         Pending 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.

         I. Background facts

         This 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.

         The 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. Id.

         In 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.[1] 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.

         Gerlaugh 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.

         McCutcheon, 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 53-54.

         McCutcheon 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.

         McCutcheon 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.

         Glass 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.

         At the 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.

         Thomas 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.

         Shortly 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.

         State 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 corroborates:

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 34.

         Before 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.

         Plaintiffs 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.

         II. Causes of action

         After 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).

         While 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).

         III. Legal standard

         A party 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).

         Summary 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).

         IV. Analysis

         A. Plaintiffs’ Motion

         Plaintiffs’ 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.

         Aside 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.

         Defendants 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 § 55-2-12.

         The 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).[2] 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 12.[3]

         The 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 ...

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