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Edwards v. McElliotts Trucking, LLC

United States District Court, S.D. West Virginia, Huntington Division

December 11, 2018

RICHARD EDWARDS, JR., Plaintiff,
v.
McELLIOTTS TRUCKING, LLC; DANNY McGOWAN, individually and as an employee of McElliotts Trucking, LLC and/or as agent of Cardinal Transport; CARDINAL TRANSPORT, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE.

         Pending 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).

         I. Background

         On 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”).[1] 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 shipment. Id.

         The 2, 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.

         As both 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.

         On 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.

         Plaintiff 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.

         Claims 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.

         II. Legal Standard

         For the sake of comprehensibility, the legal standard for each issue will be raised immediately before the discussion of each of the motions before the Court.

         III. Discussion

         At bar 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.

         A. Offset Judgment

         Cardinal 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).

         Plaintiff settled with McElliotts Defendants for $200, 000 cash, a race car chassis valued at $4500, [2] and real property valued at $168, 000.[3] 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.

         B. Prejudgment Interest

         Plaintiff 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.[4] The Court applies this rate from when the cause of action accrued until the entry of the judgment. W.Va. Code § 56-6-31.

         Here, the relevant special damages total $265, 811.94.[5] 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, [6] 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 prejudgment interest.

         C. Bill of Costs

         Plaintiff 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.

         Here, 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 trial.” Id.

         The 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.

         “[W]hen 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.

         As for 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.

         D. New Trial Under Rule 59

         Cardinal 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 raised.

         1. Clear Weight of the Evidence

         Cardinal 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.

         Federal 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).

         a. Statutory Employees and the Master-Servant Relationship

         Under 49 C.F.R. § 376.12(c)(1), there exists a rebuttable presumption of employment between carriers and owner-operator lessors.[7] 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 ( W.Va. 2001).

         McGowan's 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 Defendants' ...


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