Young v. Doucette

          Sandra L. Cabrera, Esq. Philip R. Waystack, Jr., Esq. Doreen F. Connor, Esq.

          MEMORANDUM ORDER

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE

         On January 20, 2014, Brian S. Young was killed while helping to install snow chains on the tires of a tractor-trailer truck. Invoking this court's diversity jurisdiction, Young's widow^[1] and adult daughter allege state-law claims against the truck's owner, Kelley Trucking, Inc., and its operator, Michael Doucette. Specifically, the plaintiffs bring claims for wrongful death against Doucette (Count 1), vicarious liability and negligent entrustment against Kelley Trucking (Counts 2 and 3), and loss of spousal consortium and parental consortium against both defendants (Counts 4 and 5). The case was assigned to the undersigned magistrate judge, to whose jurisdiction the parties consented. Doc. no. 5.

         The court, in its scheduling order, approved the parties' proposal to bifurcate this case into two phases. See doc. no. 12. In the first phase, the parties were to address whether the plaintiffs' claims are barred by New Hampshire Revised Statutes Annotated § 281-A:8. That statute, as a general matter, bars “any claim based upon negligence by an employer or co-employee for personal injuries arising out of or in the course of employment . . . .” Gascard v. Franklin Pierce University, 2015 DNH 049, 19-20 (Laplante, J.) (quotation marks omitted) (quoting Karch v. BayBank FSB, 147 N.H. 525, 529 (2002)).

         With discovery on this issue now closed, the defendants move for summary judgment, arguing that RSA 281-A:8 bars all five counts. Doc. no. 14. The plaintiffs object. Doc. no. 15. The court heard oral argument in February 2018. For the reasons that follow, the court denies the defendants' motion.

         I. STANDARD OF REVIEW

         Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016). “An issue is ‘genuine' if it can be resolved in favor of either party, and a fact is ‘material' if it has the potential of affecting the outcome of the case.” Xiaoyan Tang, 821 F.3d at 215 (internal quotation marks and citations omitted). At the summary judgment stage, the court “view[s] the facts in the light most favorable to the non-moving party” and “draw[s] all reasonable inferences in the nonmovant's favor . . . .” Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016) (citation and quotation marks omitted). The court will not, however, credit “conclusory allegations, improbable inferences, and unsupported speculation.” Fanning v. Fed. Trade Comm'n, 821 F.3d 164, 170 (1st Cir. 2016) (citation and quotation marks omitted) cert. denied, 137 S.Ct. 627 (2017).

         “A party moving for summary judgment must identify for the district court the portions of the record that show the absence of any genuine issue of material fact.” Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016). Once the moving party makes the required showing, “the burden shifts to the nonmoving party, who must, with respect to each issue on which [it] would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in [its] favor.” Id. (citation omitted). “This demonstration must be accomplished by reference to materials of evidentiary quality, and that evidence must be more than ‘merely colorable.'” Id. (citations omitted). The nonmoving party's failure to make the requisite showing “entitles the moving party to summary judgment.” Id.

         II. BACKGROUND

         There are two corporate entities relevant to the present dispute: Kelley Trucking and Kel-Log, Inc. Michael P. Kelley is the sole owner of both companies. See doc. no. 14-2 ¶ 1. Kel- Log harvests and sells raw forest products. Id. ¶ 2. Kelley Trucking provides trucking and delivery services. See id. ¶ 3; doc. no. 15-3 at 29-30. Kelley Trucking is a defendant in this action; Michael Kelley and Kel-Log are not.

         At the time Michael Kelley first incorporated Kel-Log, workers' compensation rules did not allow a company to rate lumbermen and truck drivers as different classifications under the same policy. Doc. no. 14-2 ¶ 4. Michael Kelley accordingly decided to incorporate Kelley Trucking separately, so that his truck drivers could be classified at a lower rate. Id. ¶ 5. Though these rules have since changed, Michael Kelley has not consolidated or merged the two companies. See doc. no. 15-3 at 22-23. The companies do share the same business location, utilities, administrative staff, retirement plan, safety handbook, and health and workers' compensation insurance policies. See doc. no. 14-2 ¶¶ 6, 7, 8, 9, 10, 14, 15. At the same time, they have separate employer identification numbers, own separate equipment and machinery, transact at arm's length, hold separate bank accounts without commingling funds, and maintain separate financial statements, bookkeeping practices, accounting and payroll records, and employment structures. See doc. no. 15-3 at 19, 27, 33, 34, 35, 39, 53, 54. The companies also separately pay rent for their office spaces. Id. at 35.

         In January 2014, Brian Young was operating a feller buncher - a machine that mechanically fells trees - at a work site in Grafton, Maine. Doc. no. 14-2 ¶ 19; doc. no. 20 at 3. When Young completed this work, Michael Kelley asked that he and Michael Doucette move the feller buncher to a work site in Errol, New Hampshire. Doc. no. 14-2 ¶ 20. Michael Kelley directed that Doucette move the feller buncher using a tractor-trailer truck owned by Kelley Trucking. Doc. no. 20 at 3. Doucette drove the truck, and Young followed Doucette in his personal vehicle. Doc. no. 16 at 2.

         As they neared their destination, Young was killed while helping Doucette install snow chains on the tires of the tractor-trailer truck. Doc. no. 15-3 at 50; doc. no. 16 at 3; doc. no. 18 at 1. Michael Kelley had previously trained Doucette on the safe installation of winter chains. Doc. no. 15-3 at 51-52. Michael Kelley provides this training to all Kelley Trucking employees. Doc. no. 15-3 at 50-5. Both Young and Doucette were W-2 employees of Kel-Log when the accident occurred. Doc. no. 14-2 ¶¶ 11, 12.

         The plaintiffs recovered workers' compensation benefits under Kel-Log's workers' compensation policy. Doc. no. 14-2 ¶ 23. They bring this action against ...