United States District Court, W.D. Oklahoma
TRUDY FERRELL, individually and as personal representative of the ESTATE OF GREGORY FERRELL, deceased, Plaintiff,
BGF GLOBAL, LLC, et al., Defendants.
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
husband, Gregory, was killed when his car collided with a
semi-truck driven by Defendant Lawrance Dildine. At the time
of the collision, Dildine was employed as a truck driver for
Defendant BGF Global, LLC (BGF) and BGF stipulated Dildine
was acting within the scope of his employment when the
accident occurred. Among other claims, Plaintiff seeks
damages for wrongful death. See Petition at 16 [Doc.
No. 1-2]. Oklahoma's wrongful death statute, 12 Okla.
Stat. § 1053(A), provides:
When the death of one is caused by the wrongful act or
omission of another, the personal representative of the
former may maintain an action therefor against the latter, or
his or her personal representative if he or she is also
deceased, if the former might have maintained an action, had
he or she lived, against the latter, or his or her
representative, for an injury for the same act or omission.
damages recoverable in wrongful death actions include: (1)
the loss of financial support of contributions of money to
the surviving spouse and children; (2) the grief of the
surviving spouse; (3) the loss of the society, services,
companionship, and marriage relationship of the surviving
spouse; (4) the grief of the children and parents of the
decedent; (5) the loss of companionship and parental care,
training, guidance, or education that would have been
forthcoming from the decedent to the children, and the loss
of companionship of the decedent by the children; (6) the
loss of the companionship of the decedent by his parents; (7)
the decedent's pain and suffering; (8) the decedent's
mental pain and anguish; and (9) the medical and burial
expenses. See 12 Okla. Stat. § 1053(B); see
also OUJI-CIV No. 8.1.
the Court is Defendants' Motion for Partial Summary
Judgment With Respect To Certain Damages [Doc. No. 103].
Defendants move for an order granting them judgment with
respect to certain damages asserted by Plaintiff,
specifically: (1) economic/pecuniary damages, (2) damages for
conscious pain and suffering of the Decedent, (3) claims for
damages on behalf of the Decedent's parents beyond those
permissible under Oklahoma law, and (4) punitive damages.
Mot. at 1. Plaintiff has filed her response in opposition
[Doc. No. 111] and Defendants have replied [Doc. No. 114].
The matter is fully briefed and at issue.
semi-truck driven by Dildine “t-boned” Mr.
Ferrell's vehicle on the driver's side door. The
impact caused massive damage to Mr. Ferrell's vehicle and
he was still in the driver's seat when police officers
arrived on the scene. Data downloaded from the airbag control
module in Mr. Ferrell's vehicle showed that one (1)
second prior to the crash, Mr. Ferrell's throttle was at
100%; comparatively, two (2) seconds prior to the crash, Mr.
Ferrell's throttle was at 42%. The officers investigating
the scene testified that Mr. Ferrell did not survive the
accident for any period of time and informed his father that
he was killed instantly. Plaintiff testified she has no
knowledge whether Mr. Ferrell suffered any conscious pain and
was on his cell phone when the accident occurred and had been
on the phone for several hours while driving that afternoon.
Dildine routinely talks on his phone for long periods of time
while driving. He still regularly talks on his cell phone
while driving his truck. At the time of the accident, BGF had
in effect a company policy that prohibited cell phone use
while driving. This policy was implemented to reduce exposure
to accidents and injuries. Dildine, however, considered many
of BGF's policies “generic” and believed he
only had to comply with them “to a degree.”
Dildine was limited by federal regulations to seventy (70)
duty hours over any eight-day period. On the day of the accident,
Dildine was at the 70 hour maximum duty time limit. GPS Logs
for Dildine's vehicle also indicated discrepancies in his
handwritten logs, including one on Monday, November 24, 2014,
where Dildine's logs indicated he stopped driving at 8:15
p.m., but GPS data showed his vehicle traveling at highway
speeds until after 10:00 p.m.
56(a), Federal Rules of Civil Procedure, provides that
“[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” The Court views the material undisputed facts in
the light most favorable to the non-moving party. T.D. v.
Patton, 868 F.3d 1209, 1219 (10th Cir. 2017). The
Court's function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter
asserted, but to determine whether there is a genuine issue
for trial. Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1251 (10th Cir. 2015). An issue is
“genuine” if there is sufficient evidence on each
side so that a rational trier of fact could resolve the issue
either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir. 1998). An issue of fact is
“material” if under the substantive law it is
essential to the proper disposition of the claim.
the moving party has met its burden, the burden shifts to the
nonmoving party to present sufficient evidence in specific,
factual form to establish a genuine factual dispute.
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991). The nonmoving party may not rest
upon the mere allegations or denials of its pleadings.
Rather, it must go beyond the pleadings and establish,
through admissible evidence, that there is a genuine issue of
material fact that must be resolved by the trier of fact.
Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th
Cir. 2004). Unsupported conclusory allegations do not create
an issue of fact. Finstuen v. Crutcher, 496 F.3d
1139, 1144 (10th Cir. 2007).
Conscious Pain and Suffering
contends that without evidence Mr. Ferrell was ever conscious
after receiving injury, Plaintiff's demand for damages
relating to conscious pain and suffering must fail as a
matter of law. Mot. at 7-8. Indeed, in order to receive
damages for conscious pain and suffering, Plaintiff has the
burden of proving that the decedent suffered some conscious
pain prior to death. Jines v. City of Norman, 1960
OK 114, ¶ 18, 351 P.2d 1048, 1052. Plaintiff responds
that (1) the police officers' opinion that Mr. Ferrell
died immediately does not establish that he undoubtedly died
upon impact, and ...