United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Partial Motion for Summary
Judgment [Doc. No. 41], filed pursuant to Fed.R.Civ.P. 56.
Plaintiff responded in opposition [Doc. No. 48], and
Defendants replied [Doc. No. 49]. The matter is fully briefed
and at issue.
case stems from a motor vehicle accident on August 19, 2016,
between Plaintiff and Defendant Elias El-Chaar
(“El-Chaar”). On that date, Plaintiff, an
employee of Regional Enterprises, LLC (“Regional
Enterprises”), was hauling jet fuel in a tanker-trailer
westbound on Interstate-40 in Crittenden County, Arkansas.
El-Chaar, driving for Bolt Express, LLC (“Bolt
Express”), rear-ended the trailer that Plaintiff was
pulling. Plaintiff alleges that El-Chaar was negligent and
was acting within the scope of his employment at the time of
the accident. As part of his damages, Plaintiff asserts a
lost wage claim of $200, 000.00. See Joint Status
Report [Doc. No. 13 at ¶ 4(a)]. Defendants contend that
Plaintiff's assertion of lost wages is devoid of any
evidentiary support. Plaintiff maintains that his testimony,
his income information and the testimony of Willie Russell,
owner of Regional Enterprises, supports his claim for lost
judgment is appropriate when “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.”
Hiatt v. Colorado Seminary, 858 F.3d 1307, 1315
(10th Cir. 2017) (quoting Fed. R. Civ. P.
56(a)). A dispute is genuine “if there is sufficient
evidence on each side so that a rational trier of fact could
resolve the issue either way, ” and it is material
“if under the substantive law it is essential to the
proper disposition of the claim.” Becker v.
Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013)
(internal quotation marks omitted). At the summary judgment
stage, the Court views the facts and all reasonable
inferences in the light most favorable to the nonmoving
party. Williams v. FedEx Corporate Services, 849
F.3d 889, 896 (10th Cir. 2017).
movant bears the initial burden of making a prima facie
demonstration of the absence of a genuine issue of material
fact and entitlement to judgment as a matter of law.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
670-671 (10th Cir. 1998) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). If the movant
meets that burden, the nonmovant must “go beyond the
pleadings and ‘set forth specific facts' that would
be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”
Adler, 144 F.3d at 671; see also Fed. R.
Civ. P. 56(c)(1)(A). To accomplish this, the nonmovant must
identify facts by reference to the pleadings, depositions,
other discovery materials, exhibits or affidavits.
Id. The Court is not limited to the cited materials,
but rather may consider other materials in the record.
Fed.R.Civ.P. 56(c)(3). The Court's inquiry is whether the
facts and evidence of record present “a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-252 (1986). Unsupported conclusory allegations
are not sufficient to defeat summary judgment. Matthiesen
v. Banc One Mortgage Corp., 173 F.3d 1242, 1247
(10th Cir. 1999).
AND MATERIAL FACTS
left Regional Enterprises because he no longer felt
“safe” hauling jet fuel after the accident.
Pl.'s Dep. [Doc. No. 41-1 at 17-19, 25-27]. Consequently, he
asserts (1) that he makes less money as a driver for YRC
Freight than he did as a driver for Regional Enterprises; and
(2) that he lost the potential to become an owner-operator
for Regional Associates, Inc. (“Regional
Associates”), a position he contends would have
provided him with earnings of $150, 000.00 a year.
Id. at 28, 30.
Regional Associates and Regional Enterprises
Russell founded Regional Associates in 1993. Ward's Dep.
[Doc. No. 41-3 at 7-8]; W. Russell's Dep. [Doc. No.
41-4]. He later sold his share of the company to his son,
Jason Russell. Ward's Dep. [Doc. No. 41-3 at 7]. Regional
Associates hauls fuel, primarily jet fuel, to military bases
across the United States. J. Russell's Dep. [Doc. No.
41-2 at 6-7]; Ward's Dep. [Doc. No. 41-3 at 16, 34]. The
company owns 38 trailers. J. Russell's Dep. [Doc. No.
41-2 6]; Ward's Dep. [Doc. No. 41-3 at 8]. Regional
Associates does not have any tractor units to pull its
trailers. Therefore, it enters lease agreements with other
companies or individual owner-operators of tractor
units. One such company is Regional Enterprises, which Willie
Russell owns. J. Russell's Dep. [Doc. No. 41-2 at 7]; W.
Russell's Dep. [Doc. No. 41-4 at 8]. Plaintiff drove as
an independent contractor for Regional Enterprises. At the
time of the accident, Plaintiff was driving a Regional
Enterprises' tractor pulling a Regional Associates'
trailer. J. Russell's Dep. [Doc. No. 41-2 at 7].
Associates does not employ drivers but leases with companies
who do employ drivers or leases with individual
owner-operators of tractor units. W. Russell's Dep. [doc.
No. 41-4 at 10]. A person has to own his or her own truck to
be an owner-operator. W. Russell's Dep. [Doc. No. 41-4 at
10]; Ward's Dep. [Doc. No. 41-3 at 19, 23]; J.
Russell's Dep. [Doc. No. 41-2 at 13].
motor vehicle accident at issue occurred on August 19, 2016,
on Interstate-40 in Crittenden County, Arkansas. Plaintiff
was driving a tractor unit owned by Regional Enterprises and
was pulling a trailer owned by Regional Associates. J.
Russell's Dep. [Doc. No. 41-2 at 7]; Accident Report
[Doc. No. 41-7]. Following the accident, Plaintiff left the
disabled trailer in Arkansas and returned to Oklahoma City in
the tractor unit owned by Regional Enterprises. Pl.'s
Dep. [Doc. No. 41-1 at 24]. Plaintiff took one week off work
after the accident. Id. He continued to drive for
Regional Enterprises until late September or early October
2016. W. Russell's Dep. [Doc. No. 41-4 at 25-26].
Plaintiff's Resignation from Regional
point in late September or early October 2016, while
Plaintiff was pulling a trailer for Regional Associates,
Plaintiff called Jason Russell and resigned. Pl.'s Dep.
[Doc. No. 41-1 at 25, 64]. He made the decision to resign
after he perceived that he was almost involved in a similar
accident while hauling diesel fuel for Regional Associates.
Id. at 25, 64. Plaintiff left Regional Enterprises
because he no longer felt “safe” hauling fuel
after the accident. Id. at 17-19. Plaintiff, Jason
Russell, Willie Russell and Andrea Ward all testified that
Plaintiff would be welcomed back at Regional Enterprises as a
company/contract driver or Regional Associates as an
owner-operator, if at any point he chose to return.
Id. at 66; see also J. Russell's Dep.
[Doc. No. 41-2 at 27]; Ward's Dep. [Doc. No. 41-3 at 23];
W. Russell's Dep. [Doc. No. 41-4 at 9].
Plaintiff's Employment at YRC Freight
still working for Regional Enterprises, Plaintiff applied for
a commercial truck driver position with YRC Freight on
September 8, 2016. Pl.'s Employment Application [Doc. No.
41-5 at 4]. In his application, Plaintiff indicated he was
leaving “Regional” because “the salary changes
from month to month and at this time [I'm] not working at
all.” Id. at 2. He also indicated he was not
receiving health insurance. Id. Plaintiff further
indicated that he had once left “Regional
Associates” on or about July 20, 2015, “To go
work at Frontier for health insurance.” Id. at
Garst, YRC Talent Acquisition Coordinator, testified that YRC
Freight provides “free health insurance to their
employees” and that this “attracts candidates to
YRC Freight.” Garst's Dep. [Doc. No. 41-8 at 25].
During his phone interview with YRC Freight, Plaintiff
indicated he was looking for a job with “[h]ealth
insurance and somewhere stable to retire from” and that
he disliked the fact that Regional Enterprises did not offer
health insurance. YRC Freight Phone Interview Form [Doc. No.
41-9]. Nowhere in YRC Freight's records does Plaintiff
assert that he felt unsafe pulling certain types of loads. In
fact, YRC Freight requires all job applicants to be HAZMAT
certified. Glave's Dep. [Doc. No. 41-10 at 19].
evidence of record indicates that Plaintiff has been employed
with YRC Freight since October 8, 2016. See
Defs.' Partial Mot. for Summ. J. [Doc. No. 41 at ¶
28]; YRC Freight Pay Records [Doc. No. 41-13].