United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the Court are multiple post-trial motions. For the
foregoing reasons, the Court GRANTS
Defendant's Motion to Offset Judgment in the amount of
$372, 500.00 (ECF No. 257), GRANTS
Plaintiff's Motion for Prejudgment Interest in the amount
of $49, 748.19 (ECF No. 256), GRANTS
Plaintiff's Bill of Costs in the amount of $5, 731.09
(ECF No. 244), DENIES Defendant's Motion
for a New Trial (ECF No. 258), GRANTS
Defendant's Motion to Certify Appeal (ECF No. 260), and
GRANTS Defendant's Motion to Stay
Judgment (ECF No. 246).
February 26, 2016, Plaintiff Richard Edwards filed the
Complaint in this case against Defendants Danny McGowan
(“McGowan”), his company, McElliotts Trucking,
LLC (“McElliotts”, together “McElliotts
Defendants”), and Cardinal Transport, Inc.
(“Cardinal”). Compl., ECF No. 1. The cause
of action arose on October 3, 2015, when Plaintiff was
injured during the loading of large metal rods during their
000-pound rod that struck Plaintiff was part of a shipment
produced by Special Metals and destined for one of its
customers. McGowan Depo., p. 91, ECF No. 72-6.
Special Metals placed the shipment with Cardinal, an
interstate motor carrier that ships freight by semi-truck.
Riley Aff., ¶ 3, ECF No. 72-1. Cardinal leased
the trucks owned by McElliotts to deliver loads negotiated by
McGowan, an exclusive sales agent of Cardinal. Sales
Agency Agreement, ECF No. 72-3; Independent
Contractor Agreement, ECF No. 72-4.
a sales agent and an owner-operator lessor, McGowan solicited
customers and negotiated shipping rates subject to
Cardinal's policies and ultimate approval. Sales
Agency Agreement, at 1; Cardinal Agent's Policy
Manual, pp. 1-5, ECF Nos. 81-2, 82-1, 82-2;
Independent Contractor Agreement, ¶ 1.
McGowan's commission was contingent on placing shipments
on Cardinal-leased trucks, unless Cardinal provided written
permission to utilize another carrier. Sales Agency
Agreement, at 1.
occasion, Special Metals would place a shipment with Cardinal
that did not fill an entire trailer. McGowan Depo.,
at 68. In those instances, McGowan would haul the partial
load back to his truck yard in Kenova where he would unload
and store it until he collected enough shipments to fill an
entire trailer. Id. He would then load multiple
shipments on one trailer. Id. at 68, 88, 90.
Plaintiff was injured while McGowan was reloading a trailer.
Id. at 91. Cardinal was aware of this practice and
condoned it, as its owner felt it was Cardinal's
“responsibility to try and make the owner-operator as
much money as possible” so as to “improve their
equipment and improve their lives.” Trial
Transcript 3, p. 561, ECF No. 252.
alleged twelve counts of liability, including claims for
vicarious liability against Cardinal under West Virginia
common law and federal regulations that impose requirements
on Cardinal's relationship with McGowan. Compl.,
¶¶ 60-87. On August 6, 2018, McElliotts
Defendants entered into a settlement agreement with
Plaintiff. Settlement, ECF No. 257-2. The settlement
was for $200, 000 cash, 118 acres of land in Carter County,
Kentucky, and a race car chassis with a driving suit and
helmet. Id. at 3.
against Cardinal went to trial on August 7, 2018. ECF No.
217. A jury verdict was returned on August 14, 2018. Jury
Verdict, ECF No. 231. The jury found McElliotts
Defendants negligent and Cardinal vicariously liable.
Id. Damages were awarded in the amounts of $205,
811.94 for past medical bills; $700, 000 for future medical
bills; $60, 000 for past lost earnings; $450, 000 for reduced
earning capacity; and a $1, 000, 000 each for past pain and
suffering, past reduced capacity to function as a whole
person, future pain and suffering, and future reduced
capacity to function as a whole person. Id. The
verdict totaled $5, 415, 811.94 and the Court entered a
judgment order for that amount. J. Order, ECF No.
240. Crossclaims of indemnification and contribution
remain unresolved between McElliotts Defendants and Cardinal.
Answer to Compl., ECF No. 12.
sake of comprehensibility, the legal standard for each issue
will be raised immediately before the discussion of each of
the motions before the Court.
are issues of a judgment offset; prejudgment interest;
awarding costs to the prevailing party; motions for a new
trial or, alternatively, a certification for appeal; and a
stay of judgment. The Court addresses each in turn.
claims it is entitled to an offset of the judgment entered
against it by the amount of the settlement between Plaintiff
and McElliotts Defendants. Mot. Offset J., ECF No.
257. Under West Virginia law, “[w]here a payment is
made, and release obtained, by one joint tort-feasor, the
other joint tort-feasors shall be given credit for the amount
of such payment in the satisfaction of the wrong.”
Bd. of Educ. of McDowell Cty. v. Zando, Martin &
Milstead, Inc., 390 S.E.2d 796, Syl. Pt. 5 ( W.Va. 1990)
(internal citations omitted). This credit is available when
plaintiffs settle with parties and non-parties alike. See
Cline v. White, 393 S.E.2d 923, 926 ( W.Va. 1990).
settled with McElliotts Defendants for $200, 000 cash, a race
car chassis valued at $4500,  and real property valued at $168,
Settlement, at 3. Parties agree an offset is
appropriate here. Resp. Mot. Offset J., p. 1, ECF
No. 267. As such, the verdict of $5, 415, 811.94 is offset by
$372, 500, reducing the final judgment to $5, 043, 311.94.
moves the Court for prejudgment interest. Mot.
Prejudgment Int., ECF No. 256. The Fourth Circuit has
held “state law applies to questions involving
prejudgment interest in diversity cases.” United
States v. Dollar Rent A Car Sys., Inc., 712 F.2d 938,
940 (4th Cir. 1983). West Virginia law provides for
prejudgment interest on “special damages, ” which
include “lost wages and income, medical expenses,
damages to tangible personal property and similar
out-of-pocket expenditures.” W.Va. Code § 56-6-31.
The Court has clarified that “special damages do not as
a category include future losses.” Jackson v.
United States, No. 3:14CV15086, 2015 WL 5174238 (S.D.
W.Va. Sept. 2, 2015). “Generally, a circuit court must
deduct all proper credits, payments, and set-offs before
calculating prejudgment interest.” Doe v. Pak,
784 S.E.2d 328, 333 ( W.Va. 2016) (internal citations
omitted). When dealing with apportioning the offset of the
total judgment and how that affects the pre-judgment
interest, the Supreme Court of Appeals of West Virginia has
used the calculations adopted by our sister court in the
Northern District as an example. Id. (citing
Small v. Jack B. Kelley, No. 1:10 CV 121, 2012 WL
4056745 (N.D. W.Va. 2012) (applying West Virginia law). In
Small, the court calculated what percentage of the
total verdict the special damages represented, rounding each
percentage to the nearest tenth. Then, the court calculated
the same percentage of the judgment, after subtracting the
offset, to determine the amount the prejudgment interest
tabulation is applied. A prejudgment amount of 7% applies for
claims that arose in 2015. The Court applies this rate from when
the cause of action accrued until the entry of the judgment.
W.Va. Code § 56-6-31.
the relevant special damages total $265,
811.94. This represents 4.91% of the total
verdict, before any offset. After the offset, the final
judgment becomes $5, 043, 311.94, 4.91% of which is $247,
626.62. This represents the proportional amount to which the
prejudgment intertest rate of 7% can be applied. Seven
percent of $247, 626.62 is $17, 333.86. To account for the
passage of time from the date of the accident up to the
verdict, a period of 2.87 years,  the Court multiplies $17,
333.86 by 2.87 and achieves a prejudgment interest total of
$49, 748.19. Thus, the Court awards Plaintiff $49, 748.19 in
Bill of Costs
claims he is entitled to recover fees of the Clerk, certain
deposition costs, witness fees, and docket fees. Aff.
Bill of Costs, ECF No. 244-1. Rule 54(d) of the Federal
Rules of Civil Procedure states that costs other than
attorneys' fees “should be allowed to the
prevailing party.” Fed.R.Civ.P. 54(d)(1). Under United
States Code, expenses that are generally recoverable by the
prevailing party include fees of the clerk, fees for printed
or electronically recorded transcripts necessarily obtained
for use in the case, fees for witnesses, and docket fees
under 28 U.S.C. § 1923. 28 U.S.C. §1920. The
prevailing party bears the burden of showing the requested
costs are allowable under § 1920. Ramonas v. W.Va.
Univ. Hospitals-East, Inc., No. 3:08-CV-136, 2010 WL
3282667, at *2 (N.D. W.Va. Aug. 19, 2010). Once the
prevailing party has carried its burden, the burden shifts to
the losing party. Id.
the only portion where the amount of recoverable costs are
left to determination by the Court arise with deposition
transcript costs. “A district court should award costs
when the taking of a deposition is reasonably necessary at
the time of its taking.” LaVay Corp. v. Dominion
Fed. Sav. & Loan Assoc., 830 F.2d 522, 528 (4th
Cir.1987). The term “reasonably necessary”
references the use or potential use in anticipation of trial,
and “the costs of a deposition taken solely for
discovery purposes are not recoverable.”
Ramonas, 2010 WL 3282667, at *9. Unless the
prevailing party “demonstrates that both costs were
‘necessarily obtained for use in the case', only
its transcription costs are recoverable.” Cherry v.
Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir.
1999). For both to be necessary, there must be
“something more than convenience or duplication to
ensure alternative methods for presenting materials at
Court notes that all of the deposition costs claimed by
Plaintiff involve parties, testifying witnesses, or witnesses
called by Cardinal that could reasonably be believed to be
included in the witness list at trial. See generally
Ramonas, 2010 WL 3282667 (using factors such as
inclusion in witness list, whether the deponent was a party
at time of the deposition, whether deponent actually
testified at trial, and whether the deposing party reasonably
believed the deponent could be called at trial). However,
Plaintiff offers no explanation as to why both a transcript
and video deposition of Kristi Roberts were necessary in this
case. Without an independent explanation for each, the Court
may only find one recoverable.
a party notices a deposition to be recorded by
nonstenographic means, or by both stenographic and
nonstenographic means, and no objection is raised at that
time by the other party to the method of recordation pursuant
to Federal Rule of Civil Procedure 26(c), it is appropriate
under § 1920 to award the cost of conducting the
deposition in the manner noticed.” Cherry, 186
F.3d at 449 (quoting Morrison v. Reichhold Chemicals,
Inc., 97 F.3d 460, 465 (11th Cir. 1996)). Given the
video deposition was used at trial and the original notice of
deposition was for a videotaped deposition, the Court grants
$604.14 for the costs of the video deposition and denies the
$335.17 for the written transcript. Notice of Depo.,
ECF No. 198. This brings Plaintiff's total recoverable
transcript costs to $5071.09.
the remaining costs claimed by Plaintiff, there is an
allotment of forty dollars per day for witnesses'
attendance fees. 28 U.S.C. § 1821(b). Here, Plaintiff
filed for the attendance fees for six witnesses, all called
at trial. Bill of Costs, p. 2, ECF No. 244.
Additionally, docket fees for a trial are set at twenty
dollars. 28 U.S.C. § 1923(a). Filing fees for a civil
action in this district are $400. All of these are explicitly
outlined in the 28 U.S.C. § 1923 and their amounts are
uncontested. As such, the Court finds the total recoverable
costs to be $5731.09, to be included in the final judgment.
New Trial Under Rule 59
argues a new trial is merited based on (1) the clear weight
of the evidence, (2) the sufficiency of the jury
instructions, and (3) the amount of the verdict. Memo.
Supp. Mot. New Trial, pp. 1-2, ECF No. 259. Arguments
for each are addressed herein the subdivsions of each issue
Clear Weight of the Evidence
contends the clear weight of the evidence runs contrary to
the verdict for two reasons. First, Cardinal alleges
McElliotts Defendants were unequivocally proven to be
independent contractors, not employees. Id. Second,
Cardinal alleges the loading and unloading of trucks was
unquestionably outside the scope of employment. Id.
Both issues Cardinal raised previously; the Court's
determination here uses similar rationale by which they were
previously addressed. See Memo. Opinion & Ord. Summ.
J., ECF No. 121.
Rules provide “[t]he court may, on motion, grant a new
trial . . . after a jury trial for any reason for which a new
trial has heretofore been granted in an action at law in
federal court.” Fed.R.Civ.P. 59(a)(1). When ruling on a
Rule 59 motion for a new trial on the basis of the weight of
the evidence, “a trial judge may weigh the evidence and
consider the credibility of the witnesses and, if he finds
the verdict is against the clear weight of the evidence, is
based on false evidence or will result in a miscarriage of
justice, he must set aside the verdict, even if supported by
substantial evidence, and grant a new trial.”
Poynter by Poynter v. Ratcliff, 874 F.2d 219, 223
(4th Cir. 1989) (internal citations omitted). The decision to
grant or deny a Rule 59(a) motion for a new trial rests
within the sound discretion of the trial judge. Id.
(internal citations omitted).
Statutory Employees and the Master-Servant Relationship
49 C.F.R. § 376.12(c)(1), there exists a rebuttable
presumption of employment between carriers and owner-operator
lessors. This presents a neat symmetry with West
Virginia common law, which requires a prima facie
showing of an agency relationship before the burden shifts to
the party invoking an independent contractor defense.
Zirkle v. Winkler, 585 S.E.2d 19, 22 ( W.Va. 2003)
(quoting Sanders v. Georgia-Pacific Corp., 225
S.E.2d 218, 222 ( W.Va. 1976)). Under West Virginia law, it
is the power to control the process of the work that is
determinative of whether a master-servant relationship
exists. Robertson v. Morris, 546 S.E.2d 770, 773 (
business with Cardinal stretched from soliciting customers
and negotiating shipping rates to leasing his trucks to
Cardinal and finding drivers to deliver the shipment to its
destination. At each of these stages, however, Cardinal had
the exclusive power to exercise meaningful control over
McElliotts Defedants' operations, even beyond processes
mandated by federal regulation. Evidence on the record of
Cardinal's significant control over McElliotts