United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge.
diversity action, plaintiff Brandon Lester contends that he
sustained serious personal injuries when his vehicle struck a
tractor trailer driven by Israel Martinez, Jr. in the early
morning hours of October 26, 2015. The case is presently
before the court on the plaintiffs motion for partial summary
judgment, plaintiffs motion to strike the third-party
complaint, and the defendants' motions to dismiss. For
the reasons set forth below, the parties' motions will be
denied in part and granted in part.
Salinas Express, LLC ("Salinas") is a Texas limited
liability company in the business of shipping goods through
interstate travel. Salinas is co-owned by Rudy Salinas
("Rudy") and his sister, both citizens of Texas.
Salinas leases nine trucks from their owner-operators and
maintains that it only hires independent contractors to
complete its shipping jobs. Nevertheless, Salinas's job
applications are for "employment" and refer to the
drivers as "employees." Through the course of a
delivery, Rudy assigns drivers, and sometimes, Rudy will also
instruct the drivers as to the specific tractor that will be
used. Drivers are required to check in with Rudy every
morning and must adhere to set delivery deadlines. At the end
of a trip, drivers must also turn in log books to Rudy or his
sister. After a successful delivery, Salinas is paid by its
broker. At that point, Salinas pays its drivers in cash and
issues a Form 1099 to those individuals it pays.
Occasionally, Salinas performs certain repairs on tractors
used in its business.
1988 Peterbilt tractor involved in the accident was purchased
by Rudy roughly fifteen years ago (the "Salinas
Tractor"). Approximately seven or eight years ago, Rudy
gifted the tractor to his father, who, in 2014, started the
process of selling the tractor to Roy Salinas, Rudy's
brother ("Roy"). Roy testified that he is
purchasing the tractor from Rudy and that he is unsure as to
the remaining balance or the amount he has paid towards its
purchase. The Salinas Tractor, however, remains titled in
to September 2015, Roy worked for both SMC Transport, LLC and
Salinas. Roy sometimes used the Salinas Tractor while
completing deliveries for both companies. Roy was not the
exclusive driver of the Salinas Tractor, as it was also
driven by Israel Martinez, Jr. at least twice.
Israel Martinez, Jr. ("Martinez") is a driver for
Salinas. Martinez completed employment paperwork in the first
half of 2015 and had made three or four trips for Salinas
prior to October 2015. According to the allegations in the
complaint, Martinez "had a history of failing to adhere
to state and federal regulations governing the operation of
his vehicle." Am. Compl. ¶ 48.
SMC Transport, LLC ("SMC") is a Texas limited
liability company also in the shipping business. SMC is owned
by Sergio Cuellar ("Cuellar"). Cuellar is Rudy and
Roy's cousin. SMC owns two trucks and operates seven
others through owner-operators. One of the tractors SMC owns
(the "SMC Tractor") was also involved in the
accident. Cuellar purchased this particular tractor in July
of 2015 and made several mechanical repairs to the vehicle
over the next few months. The October ride to Virginia was
the SMC Tractor's first long-haul drive.
The Events Leading to the Accident
days before the October 26, 2015 accident, Roy was completing
a delivery for Salinas by driving a trailer of goods from
Maryland to Laredo, Texas using the Salinas Tractor. Eddie
Lozano ("Lozano"), another Salinas driver, was not
far behind Roy and was also in the process of completing a
delivery for Salinas. During the trip, Roy started to have
problems with the Salinas Tractor, and it eventually broke
down. Roy left the Salinas Tractor at a rest stop in
Botetourt County, Virginia. At that point in time, Roy
notified Rudy that he had broken down. Lozano picked up Roy,
and the two completed Lozano's delivery en route to
instructed Lozano to return to Virginia to pick up the
disabled Salinas Tractor. When asked how Rudy thought Lozano
was going to get back to Virginia, Rudy replied, "I
thought Roy was going to drive back with him." 30(b)(6)
Dep. of Rudy Salinas 46:13. Martinez testified that Rudy
called Martinez asking him to help Roy and Lozano pick up the
disabled Salinas Tractor. Other testimony suggests that Roy,
not Rudy, called Martinez to join him on the trip back to
Virginia. To get Martinez's phone number, Roy called
Rudy. During the phone call, Roy told Rudy he was asking for
Martinez's contact information so that Martinez could
help Roy pick up the disabled Salinas Tractor.
complete the trip, Lozano, Roy, and Martinez used the SMC
Tractor to tow a third tractor ("Lozano's
Tractor") to Virginia. This would allow Lozano to
quickly deliver the now-late goods that remained in a trailer
attached to the disabled Salinas Tractor. Before leaving for
Virginia, however, Roy, Martinez, and Lozano had difficulty
connecting Lozano's Tractor to the SMC Tractor. They
called Cuellar for help; Cuellar met them at a truck stop in
Texas and connected Lozano's Tractor to the SMC Tractor.
Prior to this interaction, Cuellar had not met Martinez.
During the entire trip, the SMC Tractor had SMC placards on
II. The Accident
arriving at the Botetourt rest stop, Lozano's Tractor was
unhooked from the SMC Tractor and then used to deliver the
goods Roy had left with the Salinas Tractor. The Salinas
Tractor was then hooked up to the SMC Tractor, so that it
could be towed back to Texas. Just before 6:00 a.m. on
October 26, 2016, Martinez and Roy attempted to leave the
rest stop using the SMC Tractor and with the Salinas Tractor
in tow. To do so, Martinez drove north, through the entrance
ramp of the rest stop, so that he could make a U-turn onto
southbound Interstate 81 ("1-81").
to the complaint, Martinez was driving and Roy was directing
him. Martinez proceeded to drive out of the rest stop's
entrance ramp. He had "not attempted to place flares on
1-81 South to alert drivers that his vehicle would be
blocking the southbound lanes." Am. Compl. ¶ 34.
Additionally, other drivers on the highway had "very
limited visibility of the entrance ramp" to the rest
stop. Id. ¶ 42. In attempting to make a U-turn
and enter onto 1-81 using the entrance ramp, Martinez caused
the SMC Tractor, towing the Salinas Tractor, to block all
lanes of traffic. At this time, Lester was cresting a rise
immediately before the entrance ramp. Lester was unable to
stop or maneuver his vehicle in time and struck the tractors.
Subsequently, a second vehicle struck Lester's vehicle.
According to Salinas's third-party complaint, the second
vehicle was negligently driven by Anthony Shifflett in the
course of his employment with CTWWM, Inc. After the accident,
Martinez again attempted to exit onto southbound 1-81 by
making the same illegal U-turn. Several hours later, phone
records indicate that Cuellar called Martinez.
filed his amended complaint against Salinas, SMC, and
Martinez on June 6, 2016, alleging nine claims of negligence,
willful and wanton negligence giving rise to punitive
damages, common-law vicarious liability, negligence per se,
negligent entrustment and negligent hiring, placard
liability, and constructive fraud. On June 24, 2016,
plaintiff filed a motion for partial summary judgment, asking
the court to find as a matter of law that the disabled
Salinas Tractor was owned by Rudy and controlled by Salinas;
that Salinas Express is vicariously liable, either through a
theory of placard liability or common-law vicarious
liability, for the negligence of Roy and Martinez while they
were using both the Salinas Tractor and the SMC Tractor; that
SMC is vicariously liable, either through a theory of placard
liability or common-law vicarious liability, for the
negligence of Roy and Martinez; and that SMC was negligent
per se in placing the SMC Tractor in interstate travel with
its placards but without the requisite insurance coverage.
24, 2016, SMC filed a motion to dismiss several of
Lester's claims. On June 27, 2016, Salinas did the same.
On July 8, 2016, Salinas filed a third-party complaint
pursuant to Federal Rule of Civil Procedure 14 against
Anthony Ray Shifflett ("Shifflett") and CTWWM, Inc.
d/b/a/ Carter's ("Carter's"), alleging that
Lester's injuries arose when Shifflett negligently struck
Lester with his vehicle. On July 11, 2016, Lester filed a
motion to strike the third-party complaint.
motions have been fully briefed and argued, and they are ripe
Motion to Dismiss
deciding a motion to dismiss for failure to state a claim,
the court must accept as true all well-pleaded allegations
and draw all reasonable factual inferences in the plaintiffs
favor. Vitol S.A. v. Primerose Shipping Co., 708
F.3d 527, 539 (4th Cir. 2013). "While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do."
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citation and quotation marks
omitted). To survive dismissal for failure to state a claim,
"a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim for relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
federal court's jurisdiction rests upon diversity of
citizenship, the court must apply the substantive law of the
forum state, including the forum state's choice of law
rules. See Ferens v.' John Deere Co.,
494 U.S. 516, 519 (1990). In Virginia, the substantive law of
the place of the wrong governs the proceeding. See Frye
v. Commonwealth, 231 Va. 370, 376 (1986). ...