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Ferrell v. BGF Global LLC

United States District Court, W.D. Oklahoma

October 30, 2017

TRUDY FERRELL, individually and as personal representative of the ESTATE OF GREGORY FERRELL, deceased, Plaintiff,
v.
BGF GLOBAL, LLC, et al., Defendants.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         Plaintiff moves the Court to reconsider its Order of August 18, 2016 [Doc. No. 64], which granted Defendant BGF Global, LLC's Motion for Partial Summary Judgment [Doc. No. 94]. Relying on recent cases from other courts in this district, and previous decisions from the Oklahoma Supreme Court, namely, Sheffer v. Carolina Forge Co., LLC, 2013 OK 48, 306 P.3d 544, Plaintiff asks that the Court revive her negligent entrustment claim against BGF. BGF has filed its response in opposition [Doc. No. 96]. The matter is fully briefed and at issue.

         BACKGROUND

         Plaintiff's husband was killed when his car collided with a truck driven by Defendant Lawrence Dildine. At the time of the collision, Dildine was employed as a truck driver for BGF and BGF stipulated Dildine was acting within the scope of his employment when the accident occurred. BGF moved for summary judgment on the grounds that, pursuant to the Oklahoma Supreme Court's decision in Jordan v. Cates, 1997 OK 9, 935 P.2d 289, it bore no independent liability to Plaintiff stemming from the accident. Jordan held that, generally, where an employer stipulates that any liability would be appropriate under the respondeat superior doctrine, any other theory for imposing liability on the employer would be “unnecessary and superfluous.” Id. at 293. Two years after Jordan, the Oklahoma Supreme Court reiterated this limitation on employer liability, holding that although “[e]mployers may be held liable for negligence in hiring, supervision or retaining an employee[, ] th[is] theory of recovery is available if vicarious liability is not established.” N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 20, 998 P.2d 592, 600. Accordingly, the Court granted BGF's motion and held Plaintiff's ancillary claims of liability against BGF (negligent hiring, training, re-training, supervision, retention, and entrustment) were barred as a matter of law.

         Plaintiff contends that intervening decisions from other courts in this district, and the Oklahoma Supreme Court's “clarification” of its application of Sheffer to negligent entrustment claims, require the Court to vacate the dismissal of her negligent entrustment claim against BGF.

         STANDARD OF DECISION

         Technically, “[a] motion for reconsideration [is] not recognized by the Federal Rules of Civil Procedure.” Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296 n. 3 (10th Cir. 2002). The Court construes such motions as filed pursuant to Rule 59(e)(motions to alter or amend a judgment) or Rule 60(b)(relief from a final judgment, order, or proceeding), depending on the asserted justification for, and timing of, the motion. Id.; compare Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (“Grounds warranting a motion to reconsider [under Rule 59(e)] include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”), with Fed. R. Civ. P. 60(b) (justifying relief for reasons such as “mistake, inadvertence, surprise . . . excusable neglect . . . newly discovered evidence . . . [or] fraud”). A motion to reconsider is thus appropriate where the court has misapprehended the facts, a party's position, or the controlling law. Servants of Paraclete, 204 F.3d at 1012. A motion to reconsider should not be used to revisit issues already addressed or advance arguments that could have been raised earlier. Id.

         Plaintiff's motion relies on Rule 59(e), which allows for reconsideration upon an intervening change in controlling law. See Pl. Mot. at 5 (“[T]he instant Motion should be reviewed under Federal Rule of Civil Procedure 59(e) which allow[s] for reconsideration of an interlocutory order upon an intervening change in controlling law.”). With respect to what constitutes an “intervening change in controlling law, ” federal courts (including those in this circuit) have noted the “controlling law” at issue must be precedential. See, e.g., McNeese Photography, L.L.C. v. Access Midstream Partners, L.P., No. CIV-14-503-D, 2016 WL 1312630, at *3 (W.D. Okla. Apr. 4, 2016) (collecting cases); United States ex rel. Carter v. Halliburton Co., 315 F.R.D. 56, 59 (E.D. Va. 2016) (“[A] decision that is not controlling precedent is not an intervening change in the controlling law for purposes of a motion for reconsideration.”).

         DISCUSSION

         In Sheffer, the plaintiffs were injured when their tractor-trailer collided with a vehicle driven by employees of Carolina Forge Company, L.L.C. (“Carolina”). The plaintiffs sued Carolina under theories of respondeat superior and negligent entrustment. The trial court granted summary judgment to Carolina, finding the employees were not acting within the scope of their employment at the time of the accident and Carolina did not negligently entrust the vehicle to the employees. However, the Oklahoma Supreme Court reversed, holding that reasonable minds could have differed on the questions of whether the employees were in the scope of their employment at the time of the accident and whether Carolina negligently entrusted the vehicle to them.

         Relevant to the instant motion, the Sheffer Court rejected Carolina's argument that it could not be held liable for negligent entrustment unless the Plaintiffs first established the employees were acting within the scope of their employment at the time of the accident. It stated, “[l]iability for negligent entrustment arises from the act of entrustment, not the relationship of the parties. … As such, when an employer provides an employee with a vehicle, whether the negligent act was done during the course and scope of an employee's employment is not relevant to the negligent entrustment analysis.” Sheffer, 306 P.3d at 550 (citation omitted). The Court did not reference Jordan in reaching its conclusion.

         Subsequent to Sheffer, courts in this district, as well as the Northern District of Oklahoma, have distinguished it from Jordan on the grounds that in Sheffer, unlike Jordan, the employer did not stipulate that its employees were acting within the scope of their employment at the time of the tortious act. Indeed, in Isso v. Western Express, Inc., No. CIV-14-109-R, 2015 WL 4392851 (W.D. Okla. July 15, 2015), after making the foregoing observation, Judge Russell further noted that:

As such, the direct claim for negligent entrustment [in Sheffer] was not superfluous. If the plaintiffs failed to prove that the employees were acting within the scope of their employment, they could nevertheless prevail on a theory of negligent entrustment. The court's finding that “whether the negligent act was done during the course and scope of an employee's employment is not relevant to the negligent entrustment analysis, ” was therefore not unexpected or inconsistent with Jordan. Indeed it does not appear that the Supreme Court of Oklahoma was concerned with the issues raised in Jordan, which was not referenced in the opinion, likely because it did not apply in light of the dispute regarding the scope of employment. This Court's conclusion in this regard is consistent with the majority of jurisdictions to have considered the issue.

Id. at *2. See also Cardenas v. Ori, No. CIV-14-386-R, 2015 WL 2213510, at *3 (W.D. Okla. May 11, 2015) (noting distinction between Jordan and Sheffer, and dismissing, inter alia, negligent entrustment claim in light of defendant's stipulation that employees were acting within scope of employment); Barnes v. WesternExpress, Inc., ...


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