Opinion
Civil Action No. 98-3247, Section: E/3.
December 12, 2000.
ORDER AND REASONS
Defendants National Union Fire Insurance Company of Pittsburgh, PA ("National Union"), Landstar Inway, Inc. ("Landstar"), and Dolphins Chapman ("Chapman"), have filed a motion for new trial, or alternatively, to amend the Judgment entered on November 3, 2000 (Rec. Doc. No. 93), under Rule 59 of the Federal Rules of Civil Procedure. The motion is opposed by plaintiffs Richard J. Madere, Sr. and Gloria Madere, and by State Farm Mutual Automobile Insurance Company ("State Farm").
National Union, Landstar and Chapman move for a new trial on three grounds. First, they contend that the ruling entered on October 24, 2000 (Rec. Doc. No. 76) denying Landstar's motion for summary judgment and granting plaintiffs' motion for summary judgment on insurance coverage, finding that Landstar and National Union are responsible under the policy at issue for liability assessed to defendant James Pierce d/b/a Kelly's Nursery, was in error because it failed to consider Sturgeon v. Bankers and Shippers Ins. Co. of New York, 731 F.2d 255 (5th Cir. 1984) ( en banc). Second, they argue that the judgment entered against Landstar and National Union for the damages caused by James Pierce d/b/a Kelly's Nursery was in error because it was based upon the aforementioned ruling on insurance coverage. Finally, National Union, Landstar, and Chapman argue that the judgment entered against them for 30% of the fault of this accident is manifestly erroneous because it was based upon the arguments of counsel, which were so highly prejudicial that they must have inflamed the jury against these defendants.
In Sturgeon, the Fifth Circuit's task was "to formulate the test of Louisiana law applicable in insurance suits to determine when a loader or unloader may claim coverage as a `borrower' of the vehicle under the standard loading and unloading clause of the trucker's company's policy — and asked to apply that test to the prototypical facts of this case." 731 F.3d at 256. The facts in Sturgeon, while similar in some ways to the instant facts, are distinguishable in certain aspects critical to the decision. Plaintiff Sturgeon, the owner-driver of a flatbed tractor-trailer, was contracted to deliver a load of cotton from Texas to defendant Strachan Shipping Company in New Orleans. He carried the goods to the place where Strachan directed, handed over the bills of lading, removed the tarpaulin and fastenings, and was free to leave the area. While Strachan forklifts were unloading the cotton, a bale fell on Sturgeon. When Sturgeon sued Strachan for damages, Strachan third-partied Sturgeon's insurance carrier, seeking coverage. The policy in question provided coverage for bodily injury or property damage arising out of the loading or unloading of vehicle, but only if the person is "a lessee or borrower" of the vehicle.
The Sturgeon court reasoned that "borrow is the correlative of loan" and there the two terms must be construed in complementary fashion, particularly when "borrow" is not defined by the policy. The Fifth Circuit provided the following guidelines regarding what constitutes the degree of control of a vehicle which will render a loader/unloader a `borrower' covered by the standard clause:
Control of a movable object intrinsically involves power to govern its location. In the instance of a vehicle — an object whose purpose is to provide transportation — "control" of the vehicle during any given period must include power to move it during that space of time. Thus, to have control of a vehicle during loading/unloading one must have the power to move the vehicle during the loading/unloading process itself.
We do not now attempt to compose an exclusive list of the various means by which a "borrower" may have the necessary power to move an allegedly borrowed vehicle; such mapping of the precise factual contours of "control" in the context of particular situations is an incremental endeavor more appropriate for the federal district courts and the courts of Louisiana than for our en banc discussion — which at this point would be unduly speculative.731 F.2d at 260.
This court now has before it not only the evidence presented on summary judgment, but the facts fully developed at trial, as to the circumstances concerning the use, loading, unloading, borrowing and/or leasing of the tractor-trailer truck in question covered by the Landstar/National Union policy. Pierce, who does business as Kelly's Nursery, hired Chapman and his tractor-trailer, to accompany him to Louisiana to pick up a load of railroad ties. Pierce did not merely direct Chapman to the place and ask him to pick up the ties and deliver them to another place, but actually accompanied Chapman with two other tractor-trailers, on this journey. For this job, Pierce paid Landstar, to whom Chapman had leased his truck, a rental or lease fee. Pierce did not purchase the truck, or direct the truck to perform a certain job, but hired the truck and its driver to accompany him to Louisiana. The evidence was consistent and unwavering at trial, by Chapman himself, that the operation was under Pierce's control. He went to the locations Pierce where he was instructed by Pierce, and remained in the truck, awaiting further instructions. Chapman would have moved his truck to any location to which he was directed by Pierce.
It is important to note that the Sturgeon court specifically did not find that the only way to be a borrower, i.e., have control of a vehicle, is to drive it, but instead envisioned that there may be many ways a "borrower" may have the necessary power to move a borrowed vehicle. It is obvious to this court that one way is to direct the driver, to whom a lease fee was paid in order to have the power to control the actions of the driver, to move it to the place desired. Applying Sturgeon to the factual scenario here, Pierce was the lessee and/or borrower of the truck and its driver and directed and participated in the unloading operation, not merely someone who hired Chapman to pick up a load and bring it back to Texas. Thus, the first two grounds in the defendants' motion for new trial are without merit.
National Union, Landstar, and Chapman also move for a new trial on the basis of certain remarks made during opening statement suggesting that their counsel lied and during closing arguments which inferred that Landstar's truck drivers injured persons by "killing them and maiming them" on the nation's highways. Both counsel for the movers here and counsel for James Pierce objected to these remarks and these objections were sustained. Defendants National Union, Landstar, and Chapman argue that the jury's passions must have been inflamed and prejudiced by these remarks that a miscarriage of justice resulted on the issue of their liability. While these remarks were unfortunate, objections to them were sustained.
The plaintiffs requested millions of dollars of damages and sought to have the vast majority of the fault assessed against Chapman. The jury, however, apportioned Chapman only 30% of the fault, compared to 60% of the fault assessed to Pierce, and 10% to the plaintiff. The amount of damages awarded to Madere, less the past medical expenses which were stipulated, was $361,000, considerably less than the plaintiff sought. This convinces the court that the jury was not prejudiced in the slightest degree by such remarks of plaintiffs' counsel, and rendered a just and reasonable verdict. Further, the evidence in the record fully supports this apportionment of liability as well as the quantum award.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendants National Union Fire Insurance Company of Pittsburgh, PA, Landstar Inway, Inc., and Dolphins Chapman, for a new trial be and is hereby DENIED.
New Orleans, Louisiana, December 12, 2000.