Truck v. Train – Train Wins
After a collision between an Amtrak train and a truck pulling a trailer there were multiple lawsuits filed for injuries of people on the train and the widow of the truck driver, Bobby Jenkins who died in the accident. The collission occurred when, despite warning markers, Jenkins failed to stop at the point where the private road on which he was driving crossed the railroad track. In Progressive Paloverde Insurance Company v. BJ Trucking Earthmover, L.L.C. Defendant, et al, No. 21-30379, United States Court of Appeals, Fifth Circuit (July 15, 2022) established who was responsible for the accident and resulting injuries.
BACKGROUND
The Accident
On the day of the collision, Jenkins was hauling sand in Southeastern Louisiana. He was driving a semi-truck pulling a dump trailer. Both the truck and trailer were owned by BJ Trucking Earthmover, LLC (“BJ Trucking”) of which Jenkins was the only member. The twenty-seven tons of sand he was hauling came from the Fluker Pit which is on property leased from Fluker Farms, Inc. by Industrial Aggregates of the Florida Parishes, L.L.C. (“Industrial Aggregates”). The private road on which Jenkins was driving was allegedly owned by Kent Enterprises, LLC (“Kent”).
Jenkins attempted to cross the railroad track at DOT#930094V. The crossing is marked by two stop signs and two “cross bucks.” Illinois Central Railroad, Co. (“IC/CN”) owns the track on which the Amtrak train was traveling at the time. The train was traveling at the permitted track speed of 79 miles per hour.
Jenkins neither slowed nor stopped at the crossing as he approached it. Video surveillance recorded by the train established that while approaching the crossing, Bobby Jenkins ignored the stop sign and crossbucks and did not slow down. Jenkins drove into the crossing, and he and the vehicle were struck by the train.
Jenkins’s widow, Katy Jenkins, filed the original lawsuit in state court. A series of related cases were then consolidated.
Progressive Paloverde Insurance Company (“Progressive”) insured the truck that Jenkins was driving. Heck Industries, Inc. (“Heck”) was alleged to have been Jenkins’s employer at the time of the accident, but Heck insists that Jenkins was working as its independent contractor.
Heck submitted a defense and indemnity claim to Progressive because Heck was named as an additional insured on the Jenkins policy. Gray Insurance Co. (“Gray”) insured Heck, but maintains that its policy provides only excess coverage for Heck. Gray contends that the Progressive policy should be primary. Progressive filed a declaratory judgment complaint to determine whether it (Progressive) owed defense or indemnity to any of the named parties.
In a series of orders granting summary judgment, the district court concluded:
the sole cause of the collision between the truck driven by Bobby Jenkins, and operated by Bobby Jenkins and [BJ Trucking], was the negligence of Bobby Jenkins and [BJ Trucking];
Heck was not an employer of Bobby Jenkins or [BJ Trucking];
Progressive’s non-trucking insurance policy did not cover the 1998 Peterbilt truck driven by Bobby Jenkins at the time of the collision; and
Industrial Aggregates breached no duty to maintain the railroad crossing.
ISSUES ON APPEAL:
Did the district court err in granting summary judgment holding that Jenkins was the sole cause of the collision?
Did the district court err in holding that Jenkins was not an employee of Heck?
Did the district court err in holding that Progressive’s non-trucking exclusion barred its policy’s coverage for this accident?
CAUSE OF THE COLLISION
Injured people employed on the train brought their claims under the Federal Employers Liability Act (“FELA”). FELA provides the exclusive remedy for a railroad employee engaged in interstate commerce whose injury resulted from the negligence of the railroad.
Awarding summary judgment to the defendant railroad is appropriate only when there is a complete absence of probative facts to support a jury verdict in the plaintiff’s favor.
Under Louisiana law, a motorist approaching a railroad crossing marked by a stop sign must “stop” and may not proceed until he can do so safely. When the crossing is marked by a cross buck, such a motorist must listen and look in both directions along such track for any approaching train and for signals indicating the approach of a train. He must yield the rightof-way to any approaching train and then shall proceed only upon exercising due care and upon being sure that it is safe to proceed. A motorist’s failure to comply with these duties suffers legal consequences.
There was no evidence of defect in the crossing. Amtrak met the burden by providing a crossing that can be traversed by a motorist who uses reasonable care. That is especially true in this case because Jenkins was familiar with the crossing: He had crossed it on a near-daily basis over several years.
EMPLOYEE OR INDEPENDENT CONTRACTOR?
Employers are responsible for the damage caused by their employees, but a principal cannot be held liable for the acts of an independent contractor. Jenkins was not Heck’s employee. Heck, therefore, is not responsible for Jenkins’s actions.
The question whether an actor is an employee or an independent contractor may be resolved as a matter of law when the facts are not in dispute. The element of control that distinguishes an employee from an independent contractor focuses on whether the purported employer had the right to control the method and means by which the individual performed the work tasks. It matters less what supervision and control is actually exercised; the important question is whether, from the nature of the relationship, the right to do so exists.
Heck did not have any control over the manner in which Jenkins completed his work. Heck based payment to Jenkins on each discrete load. Jenkins controlled his own schedule, and either he or Heck could have terminated the relationship at any point. The district court is correct that Heck did not exercise – and did not have the ability to exercise – control over the manner and means in which Jenkins completed his work.
INSURANCE
Jenkins’s policy with Progressive named Heck as an additional insured. Heck pleaded that Progressive was “obligated to defend, indemnify, and insure Heck” for the accident. However, the district court agreed with Progressive that its non-trucking exclusion barred coverage of Heck.
At the time of the accident, Jenkins was hauling twenty-seven tons of sand. The non-trucking exclusion applies because Jenkins was indisputably hauling property at the point of collision.
The district court was correct in holding that Progressive’s policy did not cover Jenkins’s truck or its trailer during this accident because those vehicles were unquestionably hauling property. And, that function was clearly excluded from coverage.
No party in this appeal has standing to challenge the dismissals of Industrial Aggregates or Gray. Their dismissals, therefore, must stand. Similarly, Kent was properly dismissed from this appeal by a joint motion.
The trial court did not err.
Mr. Jenkins limited the insurance coverage he bought to protect third parties he might injury while operating his tractor and acquired a policy that excluded coverage while he was hauling property. He was clearly negligent and that negligence caused his death as well as injury to those on the train and the train itself. No coverage for anyone and the finding that he was solely responsible for the accident and injuries the injured could only collect from his estate. Sad for those injured who would not have been injured had he stopped at the crossing.
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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.
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