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Provo v. Bolt Express, LLC

United States District Court, W.D. Oklahoma

February 26, 2018

JAY PROVO, Plaintiff,
v.
BOLT EXPRESS, LLC, and ELIAS EL-CHAAR, Defendants.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         Before 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.

         BACKGROUND

         This 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[1] of $200, 000.00[2]. 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 wages.

         STANDARD OF DECISION

         Summary 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).

         “The 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).

         UNDISPUTED AND MATERIAL FACTS[3]

         Plaintiff 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].[4] 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”)[5], a position he contends would have provided him with earnings of $150, 000.00 a year. Id. at 28, 30.

         A. Regional Associates and Regional Enterprises

         Willie 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[6] 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].

         Regional 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].

         B. Subject Accident

         The 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].

         C. Plaintiff's Resignation from Regional Enterprises

         At some 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].

         D. Plaintiff's Employment at YRC Freight

         While 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”[7] 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 4.

         Andee 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].

         The 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].

         E. Plaintiff's ...


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