United States District Court, D. New Hampshire
Samantha Young, et al.
Michael Doucette, et al.
L. Cabrera, Esq. Philip R. Waystack, Jr., Esq. Doreen F.
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
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 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.
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
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.
STANDARD OF REVIEW
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.
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.”
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.
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
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.
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.
plaintiffs recovered workers' compensation benefits under
Kel-Log's workers' compensation policy. Doc. no. 14-2
¶ 23. They bring this action against ...