Doe v. Willis

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JANE DOE,

Plaintiff,

v. Case No. 8:21-cv-1576-VMC-CPT

MURRAY WILLIS and SWIFT

TRANSPORTATION CO. OF

ARIZONA, LLC,

Defendants.

______________________________/

ORDER

This matter is before the Court on consideration of

Plaintiff Jane Doe’s Motion for Partial Summary Judgment

(Doc. # 73), filed on November 11, 2022, Defendant Swift

Transportation Co. of Arizona, LLC’s Motion for Partial

Summary Judgment (Doc. # 86), filed on November 23, 2022, and

its Daubert Motions to exclude the testimony of two of Doe’s

experts (Doc. ## 112, 113), filed on December 14, 2022. Swift

responded to Doe’s Motion on December 2, 2022. (Doc. # 104).

Doe responded to Swift’s Motion for Summary Judgment on

December 14, 2022 (Doc. # 114), and its Daubert Motions on

January 18, 2023. (Doc. ## 152, 153). Both parties replied to

the summary judgment motions. (Doc. ## 117, 125). For the

reasons that follow, Swift’s Daubert Motions are denied,

Swift’s Motion for Partial Summary Judgment is granted in

part and denied in part, and Doe’s Motion for Partial Summary

Judgment is denied.

I. Background

This case stems from an incident in which Doe claims

Defendant Murray Willis sexually assaulted her while both she

and Murray were driving a Swift truck.

A. The Parties

Swift is a full truckload carrier that utilizes both

company drivers (who Swift classifies as employees) and

owner-operators (who Swift classifies as independent

contractors). (Doc. # 86-2 at ¶ 3). Swift is headquartered

and has its principal place of business in Phoenix, Arizona.

(Id. at ¶ 2). Swift’s security and recruiting departments,

located in Phoenix, are responsible for submitting background

checks for applicants, hiring applicants, retaining personnel

documents, and coaching. (Id. at ¶ 5). Swift conducts

background checks on all drivers before engaging them to

drive, regardless of whether they are employees or owner-

operators. (Id.). Swift may disqualify applicants based on

specific hiring criteria and driver qualifications, including

driving records, criminal history, drug convictions, and

previous employment history. (Id. at ¶ 6).

Jane Doe is, and at all relevant times has been, a Texas

resident. (Doc. # 15 at ¶ 1). Swift hired Doe as a new truck

driver in September 2020. (Doc. # 109-1 at 79:11-80:9). As a

truck driver, Plaintiff’s primary responsibility was to

deliver freight using a tractor-trailer in a safe and prompt

manner consistent with Swift’s policies. (Id. at 62:24–63:19;

Doc. # 86-2 at ¶ 4).

Murray Willis is, and at all relevant times has been, a

Georgia resident. (Doc. # 109-2 at 139:21–23). Swift employed

Willis as a company driver during the following periods:

November 13, 2015, to April 18, 2016; July 13, 2016 to June

9, 2017; and October 27, 2017, to November 9, 2017. (Doc. #

86-2 at ¶ 11). Swift also engaged Willis as an owner-operator

from November 27, 2018, to March 1, 2021. (Id.). Swift

performed a background check on Willis each time he was hired,

including as an owner-operator. (Id. at ¶ 12). The November

2018 background check included a search of criminal records

in Clayton County, Georgia, and returned no criminal records

for Willis. (Id. at ¶ 13).

The parties disagree regarding the extent to which Doe

understood that Willis was an independent contractor. During

her deposition, Doe was asked whether an owner-operator is an

independent contractor (Doc. # 109-1 at 188:6-8), and she

responded, “Yes, that’s like a lease owner operator. It’s all

the same thing right? I don’t know.” (Id. at 188:9-11). Swift

contends that this response indicates Doe knew Willis was an

independent contractor, while Doe argues this indicates that

she did not understand the distinction between an employee

and an independent contractor.

B. Swift Policies and Mentor Program

Swift offers a training program that pairs new drivers

with experienced drivers who act as mentors. (Id. at ¶ 7).

Mentors provide feedback to new drivers. (Id. at ¶ 8). Mentors

do not have authority to hire, fire, or discipline a new

driver. (Id.). However, mentors do provide feedback on

whether the new driver is ready to take the road examination,

which is required to verify that a new driver is qualified to

operate a truck alone. (Id.). Swift examiners, not mentors,

administer the road examination. (Id.). New drivers may

request a new mentor for many reasons, including a personality

conflict, the condition of the mentor’s truck, or teaching

style. (Id. at ¶ 9). If a mentor and new driver disagree about

whether the new driver is ready for the road examination,

Swift will assign the new driver a different mentor. (Id.).

At the start of Doe’s employment with Swift, Doe signed

a Receipt, Safety Pledge, Arbitration Acknowledgment &

Voluntary Employee Injury Benefit Plan Enrollment Agreement

(“VEI Agreement”). (Doc. # 104-1). By signing the VEI

Agreement, Doe indicated that she understood that Swift did

not carry worker’s compensation insurance and was a

nonsubscriber under Texas’s worker’s compensation law. (Id.

at 59). As part of the VEI Agreement, Doe agreed that she

would notify Swift’s Safety Department within twenty-four

hours after sustaining an injury on the job and acknowledged

that any claim or dispute relating to an on-the-job injury

would be subject to mandatory arbitration. (Doc. # 104-1 at

59-60). The VEI Agreement defines coverage under the policy

and specifically excludes any injury that “arose out of an

act of a third person intended to injure you because of

personal reasons and not directed at you as an employee or

because of your employment.” (Id. at 21-22).

The VEI Agreement bars Swift from using the following

defenses in a lawsuit by an employee for an injury sustained

in the course of her employment: “(1) that the employee was

guilty of contributory negligence; (2) that the injury or

death was caused by the negligence of a fellow employee; or

(3) that the employee had assumed the risk of injury or

death[.]” (Id. at 59).

C. Incident

When Swift hired Doe, she was placed in Swift’s new

driver training program. (Doc. # 109-1 at 91:13-93:23). After

being assigned her first mentor, Doe requested a new mentor

because she did not want to drive through the night. (Id. at

96:7–97:7). On September 27, 2020, Willis was then assigned

as her new mentor. (Id. at 108:15–25, 110:8–17). Willis served

as Doe’s mentor until October 6, 2020, when Doe requested a

new mentor, because Willis’s truck needed repairs. (Id. at

110:15–111:13, 114:11–24). Doe also requested a new mentor on

one occasion because she did not want a mentor who was a pet

owner due to concern over dog hair in the truck. (Id. at

103:8–104:2). Each time she texted the Driver Qualification

Leader to ask for a new mentor, she was quickly reassigned.

(Id. at 94:25–99:12, 102:24–103:17, 113:14–116:13, 119:12–

24, 134:5-21).

In her deposition, Doe testified that Willis sexually

assaulted her on the night of September 29, 2020, while the

two were alone in his truck at a rest stop. (Id. at 174:20-

183:12). After the assault, Doe stated, that Willis told her

no one would believe her and that he would “claim PTSD” if

she told anyone. (Id. at 202:18–203:13).

D. Past Complaints Against Willis

In November 2010, Willis was indicted on charges of

battery, false imprisonment, and kidnapping a female victim.

(Doc. # 86-8). On April 15, 2011, Willis entered a “First

Offender Plea” on the false imprisonment and battery charges,

and the kidnapping charge was nolle prossed. (Id. at 3). He

was sentenced to five years’ probation. (Id.). On August 11,

2017, the Superior Court of Clayton County, Georgia, entered

a “Petition for Discharge of Defendant (First Offender Act)”

that stated Willis served his probationary period and was

“discharged without court adjudication of guilt.” (Id. at 2).

Further, it stated that “this discharge may not be used to

disqualify a person in any application for employment[.]”

(Id.).

In 2016, Swift received a complaint from a female driver,

J.S., asserting Willis retaliated against her. (Doc. # 110-2

at 1). After the female driver made an allegation of sexual

harassment against his friend, the female driver reported

that she heard Willis tell others not to mentor her. (Id. at

5). During Swift’s investigation of that claim, Swift also

interviewed a former Swift driver, L.L., who alleged Willis

sexually assaulted her approximately a month earlier while he

was mentoring her. (Id. at 7-11). Swift’s human resources

team investigated both claims. (Id. at 4-5). Swift determined

that it could not corroborate the allegations against Willis

(Id. at 5); however, it decided to limit Willis to training

only male students. (Id.). Yet, when Willis reapplied to the

mentor program as an owner-operator in December 2018, Swift

accepted his application and did not limit him to training

only male students. (Doc. # 86-2 at ¶ 14).

E. Expert Testimony

Doe offers the testimony of Kimberly Riddle on violence

against female truck drivers. (Doc. # 112-2). Dr. Riddle has

a Ph.D. in nursing, with a concentration in occupational and

environmental health. (Id. at 129). She also previously

worked as a sexual assault nurse examiner (“SANE”) and as a

truck driver. (Id.). Dr. Riddle has written several articles

and given presentations on health and safety in the workplace,

particularly the risk factors of sexual harassment against

female truck drivers. (Id. at 121).

In this case, she identified various risk factors for

sexual harassment, which she determined by relying on her

experience, research, and a survey of other peer-reviewed

work in the field, and applying those risk factors to the

facts at issue. (Id. at 8:3-16, 23:3-24, 47:4-23; 49:10-

51:20, 103:14-21, 105:4-17, 111:1-12, 112:3-16, 116:10-18).

In her report, she reached the conclusion that Swift should

not have placed Willis as Doe’s mentor because Willis had a

history of violent and inappropriate behaviors and because

the company had previously decided he should train only male

drivers. (Id. at 124).

Doe also offers the testimony of Steven Millwee, to

support her negligent hiring and supervision claims. (Doc. #

113-1). Mr. Millwee holds an A.A. degree in police science

and administration and a B.A. degree in criminology. (Doc. #

113-2 at 198). He worked as a police officer for four years,

during which time he investigated sex crimes. (Id. at 205).

He was President of the American Society for Industrial

Security (“ASIS”), which “is the premier organization for

security managers, executives and security professionals.”

(Doc. # 113-1 at 10:20-11:11). ASIS compiles industry

standards for the security industry and “workplace violence

cases.” (Id. at 11:12-17). It also collects standards for

“pre-employment screening” and “risk assessment,” among other

things. (Id. at 11:15-21). Mr. Millwee is also the CEO of two

background screening companies, SecurTest and IReviewNow.

(Id. at 9:23-10:19). Mr. Millwee headed security for Captain

D’s, a restaurant chain, where he assisted the human resources

department with developing policies and procedures and

“conducted all investigations for the company, from armed

robberies to sexual harassment.” (Id. at 21:1-16).

Here, Mr. Millwee used his training and experience with

security industry standards to determine whether Swift

complied with those standards with respect to its treatment

of Willis. (Id. at 11:12-13:7, 78:7-25, 88:1-25, 127:9-15,

137:6-9, 138:12-17). He relied on industry standards compiled

by ASIS, the Society for Human Resource Management (“SHRM”),

and the American National Standards Institute (“ANSI”). (Doc.

# 112-2 at 144-45). In his report, he offered the following

opinions:

• Willis’s history of violent behavior made him

unfit to be a trainer or mentor of women that

would sleep in a truck cab without

supervision.

• Swift’s criminal background checks were

inadequate.

• Swift’s investigation of other claims by

female drivers against Willis was inadequate.

• Swift failed to recognize several factors that

made Willis’s alleged assault of Doe

foreseeable.

(Id. at 170-76). During his deposition, Mr. Millwee explained

that Swift’s background checks conducted prior to 2017 were

deficient for failing to search Clayton County, Georgia,

criminal records. (Doc. # 113-2 at 54:16-55:19, 62:5-22,

138:19-24, 139:9-22, 142:24-143:5, 156:1-21, 158:3-4, 162:10-

17, 163:15-164:20). According to Mr. Millwee, if Swift had

followed industry standards and appropriately reviewed

Willis’s criminal history, it would have learned of the facts

related to Willis’s kidnapping, false imprisonment, and

battery charges and found that his history rendered him unfit.

(Doc. # 112-2 at 144-45).

F. Procedural History

Doe initiated this action on June 30, 2021. (Doc. # 1).

Doe filed her third amended complaint on August 30, 2021,

alleging sexual battery (Count 1) and intentional infliction

of emotional distress (“IIED”) (Count 2) against Willis; and

vicarious liability (Count 3), negligent supervision (count

4), negligent hiring (Count 5), and IIED (Count 6) against

Swift. (Doc. # 15). Swift filed its answer on October 25,

2021. (Doc. # 20).

Now, Swift seeks summary judgment in its favor on Counts

3, 4, 5, and 6, and Doe seeks partial summary judgment on

Swift’s fourth, seventh, eighth, tenth, and eleventh

affirmative defenses. (Doc. ## 73, 86). Both Swift and Doe

responded (Doc. ## 104, 114), and replied. (Doc. ## 117, 125).

Additionally, Swift filed two Daubert motions to exclude the

expert report and testimony of two of Doe’s experts (Doc. #

112, 113), and Doe responded. (Doc. ## 152, 153). The Motions

are ripe for review.

II. Legal Standard

A. Daubert Motion

Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by

knowledge, skill, experience, training, or

education may testify in the form of an opinion or

otherwise if: (a) the expert’s scientific,

technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to

determine a fact in issue; (b) the testimony is

based on sufficient facts or data; (c) the

testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied

the principles and methods to the facts of the case.

Fed. R. Evid. 702.

Implementing Rule 702, Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), requires district

courts to ensure that any and all scientific testimony or

evidence admitted is both relevant and reliable. See Id. at

589–90. The Daubert analysis also applies to non-scientific

expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137,

147 (1999). District courts must conduct this gatekeeping

function “to ensure that speculative, unreliable expert

testimony does not reach the jury under the mantle of

reliability that accompanies the appellation ‘expert

testimony.’” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291

(11th Cir. 2005). The Eleventh Circuit “requires trial courts

acting as gatekeepers to engage in a ‘rigorous three-part

inquiry.’” Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th

Cir. 2010).

The district court must assess whether:

(1) the expert is qualified to testify competently

regarding the matters he intends to address; (2)

the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined

by the sort of inquiry mandated in Daubert; and (3)

the testimony assists the trier of fact, through

the application of scientific, technical, or

specialized expertise, to understand the evidence

or to determine a fact in issue.

Id. The proponent of the expert testimony bears the burden of

showing, by a preponderance of the evidence, that the

testimony satisfies each of these requirements. Id.

B. Summary Judgment

Summary judgment is appropriate “if the movant shows

that 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). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538-

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed[.]” (citation omitted)).

III. Analysis

A. Swift’s Daubert Motion as to Dr. Riddle

Swift seeks to exclude Dr. Riddle’s expert testimony on

the grounds that it fails to meet the qualifications,

reliability, or helpfulness requirements of Rule 702. (Doc.

# 112 at 1).

1. Qualifications

The first question under Daubert is whether Dr. Riddle

is qualified to testify competently regarding the matters she

intends to address. City of Tuscaloosa v. Harcros Chems.,

Inc., 158 F.3d 548, 563 (11th Cir. 1998). An expert may be

qualified “by knowledge, skill, experience, training, or

education.” Fed. R. Evid. 702. “Determining whether a witness

is qualified to testify as an expert ‘requires the trial court

to examine the credentials of the proposed expert in light of

the subject matter of the proposed testimony.’” Clena Invs.,

Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla.

2012) (quoting Jack v. Glaxo Wellcome, Inc., 239 F. Supp. 2d

1308, 1314–16 (N.D. Ga. 2002)).

“This inquiry is not stringent, and so long as the expert

is minimally qualified, objections to the level of the

expert’s expertise [go] to credibility and weight, not

admissibility.” Id. (citations and internal quotation marks

omitted). The Court is mindful that its “gatekeeper role under

Daubert ‘is not intended to supplant the adversary system or

the role of the jury.’” Maiz, 253 F.3d at 666 (quoting Allison

v. McGhan, 184 F.3d 1300, 1311 (11th Cir. 1999)).

Swift contends that Dr. Riddle is not qualified to opine

in this case because her education is only in nursing and her

experience is unrelated to her opinions. (Doc. # 112 at 8-

14).

The Court finds that Dr. Riddle is qualified to testify

competently on violence against female truck drivers. Dr.

Riddle has a Ph.D. in nursing, with a concentration in

occupational health. (Doc. # 112-2 at 129). Through her

research, she has focused on violence, particularly sexual

assault, against female truck drivers. (Id. at 121). Dr.

Riddle’s work intersects neatly with the facts of this case

and the opinion she provided regarding Willis’s fitness to

mentor female truck drivers. Therefore, she is at least

minimally qualified to testify on these matters. Any further

objections raised by Swift go to Dr. Riddle’s credibility,

not to admissibility.

2. Reliability

The Court must also assess whether the expert’s

methodology is reliable. “Exactly how reliability is

evaluated may vary from case to case, but what remains

constant is the requirement that the trial judge evaluate the

reliability of the testimony before allowing its admission at

trial.” Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (citing

Fed. R. Evid. 702, Advisory Committee Notes (2000)). There

are four recognized, yet non-exhaustive, factors a district

court may consider in evaluating reliability:

(1) whether the expert’s methodology has been

tested or is capable of being tested; (2) whether

the technique has been subjected to peer review and

publication; (3) the known and potential error rate

of the methodology; and (4) whether the technique

has been generally accepted in the proper

scientific community.

Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.

2016) (citations omitted). A district court can take other

relevant factors into account as well. Id. (citations

omitted).

“If the [expert] witness is relying solely or primarily

on experience, then,” in establishing reliability, “the

witness must explain how that experience leads to the

conclusion reached, why that experience is a sufficient basis

for the opinion, and how that experience is reliably applied

to the facts.” Frazier, 387 F.3d at 1261 (citation and

internal quotation marks omitted). “[A] trial court may

exclude expert testimony . . . whose factual basis is not

adequately explained.” Cook ex rel. Est. of Tessier v. Sheriff

of Monroe Cnty., Fla., 402 F.3d 1092, 1111 (11th Cir. 2005).

Swift argues that Dr. Riddle’s opinion is not based on

any methodology and is based on insufficient facts. (Doc. #

112 at 15-18). Swift argues that Willis’s criminal history

and prior reports of sexual harassment and retaliation are

insufficient facts to lead Dr. Riddle to conclude that Willis

should not have been Doe’s mentor. (Id. at 16-18).

Dr. Riddle’s testimony is reliable. Dr. Riddle

identified various risk factors for sexual harassment, which

she determined by relying on her experience, research, and a

survey of other peer-reviewed work in the field, and applying

those risk factors to the facts at issue. (Id. at 8:3-16,

23:3-24, 47:4-23; 49:10-51:20, 103:14-21, 105:4-17, 111:1-

12, 112:3-16, 116:10-18). In other words, Dr. Riddle relied

on her education, experience, and knowledge in the field to

reach her opinions. See Kilpatrick v. Breg, Inc., 613 F.3d

1329, 1336 (11th Cir. 2010) (“[T]here are instances in which

a district court may determine the reliability prong under

Daubert based primarily upon an expert’s experience and

general knowledge in the field[.]”). Any alleged flaws in Dr.

Riddle’s methodology in deriving her two opinions are better

addressed during cross examination. See Maiz v. Virani, 253

F.3d 641, 666 (11th Cir. 2001) (“Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on

the burden of proof are the traditional and appropriate means

of attacking [debatable] but admissible evidence.” (citations

and internal quotation marks omitted)).

3. Helpfulness to the Trier of Fact

Again, to be admissible, expert testimony must assist

the trier of fact. Fed. R. Evid. 702. “By this requirement,

expert testimony is admissible if it concerns matters that

are beyond the understanding of the average lay person.”

United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004)

(citation omitted). “[T]he court must ‘ensure that the

proposed expert testimony is “relevant to the task at hand,”

. . . i.e., that it logically advances a material aspect of

the proposing party’s case.’” Allison v. McGhan, 184 F.3d

1300, 1312 (11th Cir. 1999) (citation omitted).

So, while “[t]he ‘basic standard of relevance . . . is

a liberal one,’ Daubert, 509 U.S. at 587, . . .[,] if an

expert opinion does not have a ‘valid scientific connection

to the pertinent inquiry[,]’ it should be excluded because

there is no ‘fit.’” Boca Raton Cmty. Hosp., Inc. v. Tenet

Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009)

(citations omitted). “Proffered expert testimony generally

will not help the trier of fact when it offers nothing more

than what lawyers for the parties can argue in closing

arguments.” Frazier, 387 F.3d at 1262–63 (citation omitted).

Swift argues that Dr. Riddle’s testimony will not

“advance a material aspect of Plaintiff’s case and simply

purports to cloak her belief there is a causal connection

between Swift’s conduct and Plaintiff’s injury as ‘expert’

testimony.” (Doc. # 112 at 19-20). Doe argues that Dr.

Riddle’s testimony will assist the jury by identifying

relevant risk factors of which Swift should have been aware

that might be non-obvious to a lay person. (Doc. # 153 at 17-

18).

The Court agrees with Doe. Dr. Riddle’s testimony

regarding various risk factors identified from her education

and research, her explanation of the unique dangers presented

to female drivers in the trucking industry, and her

application of those findings to the facts of this case could

assist a jury in determining the extent to which Swift was at

fault for allowing Willis to allegedly assault Doe.

Swift’s Daubert Motion as to Dr. Riddle (Doc. # 112) is

denied.

B. Swift’s Daubert Motion as to Mr. Millwee

Swift seeks to exclude Mr. Millwee’s expert testimony on

the grounds that it fails to meet the qualification,

reliability, or helpfulness requirements of Rule 702. (Doc.

# 113 at 1).

1. Qualifications

Swift argues that Mr. Millwee has not established any

relationship between his experience and his conclusions. (Id.

at 17-20). Swift contends that Mr. Millwee is relying solely

on his experience to reach his conclusions and that his

experience is insufficient “to enable him to offer insight to

a jury beyond the understanding and experience of the average

citizen.” (Id. at 18).

Mr. Millwee is qualified to testify in this case. Mr.

Millwee is testifying as to the sufficiency of Swift’s

procedures in its decisions to hire Willis and to allow him

to train Doe, a female driver. Mr. Millwee holds an A.A.

degree in police science and administration and a B.A. degree

in criminology. (Doc. # 113-2 at 198). He worked as a police

officer for four years, during which time he investigated sex

crimes. (Id. at 205). He was President of the ASIS (Doc. #

113-1 at 10:20-11:11), which compiles industry standards for

the security industry and “workplace violence cases.” (Id. at

11:12-17). Mr. Millwee is also the CEO of two background

screening companies, SecurTest and IReviewNow. (Id. at 9:23-

10:19), and headed security for a restaurant chain, where he

assisted the human resources department with developing

policies and procedures and “conducted all investigations for

the company, from armed robberies to sexual harassment.” (Id.

at 21:1-16).

In short, Mr. Millwee’s experience with sexual

harassment and workplace standards related to background

checks and investigations qualifies him to provide his

opinions regarding industry standards in hiring and

supervising employees in this case.

2. Reliability

Swift contends that Mr. Millwee did not use a reliable

methodology to reach his conclusions and that he made several

“egregious errors” in his report. (Doc. # 113 at 20-24).

According to Swift, Mr. Millwee misread Swift’s investigation

documents and the prior background checks it ran on Willis.

(Id. at 23-24). Doe responds that Swift is “cherry-picking

isolated statements in [Mr.] Millwee’s deposition” to create

the impression that Mr. Millwee relied on inaccurate facts.

(Doc. # 152 at 11-18).

Mr. Millwee’s methodology is reliable. Mr. Millwee used

his training and experience with security industry standards

to determine whether Swift complied with those standards with

respect to its treatment of Willis. (Doc. # 113-1 at 11:12-

13:7, 78:7-25, 88:1-25, 127:9-15, 137:6-9, 138:12-17). He

relied on industry standards compiled by ASIS, the Society

for Human Resource Management (“SHRM”), and the American

National Standards Institute (“ANSI”). (Doc. # 112-2 at 144-

45).

As to whether Mr. Millwee relied on sufficient facts to

reach his conclusion, the Court agrees with Doe. Though Swift

has pointed to minor inaccuracies in Mr. Millwee’s deposition

(e.g., Mr. Millwee inaccurately stated that Willis’s driver’s

license had expired (Doc. # 113-2 at 146:15–148:14,

150:1155:17)), such errors are not enough to exclude his

testimony. Further, the other alleged errors in his report

are based on disputed facts. For example, Swift argues that

Mr. Millwee should not have simply “believed” Doe’s version

of the facts. However, “an expert is . . . permitted to base

his opinion on a particular version of the disputed facts and

the weight to be accorded to that opinion is for the jury.”

Duling v. Domino’s Pizza, LLC, No. 1:13-cv-01570-LMM, 2015 WL

3407602, at *12 (N.D. Ga. Jan. 14, 2015) (quoting Feliciano

v. City of Miami Beach, 844 F.Supp.2d 1258, 1265 (S.D. Fla.

2012)). If Swift believes that the basis for Mr. Millwee’s

opinions is insufficient, then it can explore that on cross

examination. See In re Disposable Contact Lens Antitrust, 329

F.R.D. 336, 369-72 (M.D. Fla. 2018) (finding expert’s

testimony was reliable despite defendant noting several areas

in which the evidence to support his testimony was “shaky”).

3. Helpfulness

Swift contends that Mr. Millwee’s testimony will not be

helpful to the trier of fact because “legal conclusions are

both directly and indirectly implicated throughout his

testimony.” (Doc. # 113 at 25). In response, Doe states that

Swift’s argument as to the helpfulness of Mr. Millwee’s

testimony is conclusory. (Doc. # 152 at 18-19).

The Court agrees with Doe. Swift does not indicate which

parts of Mr. Millwee’s testimony “directly and indirectly

implicate[]” legal conclusions. Indeed, the Court believes

that Mr. Millwee’s expertise in industry standards for

workplace safety and background screening will assist the

jury in determining whether Swift was negligent in hiring and

supervising Willis.

Swift’s Daubert Motion as to Mr. Millwee (Doc. # 113) is

denied.

C. Swift’s Motion for Summary Judgment

Swift seeks summary judgment on the following claims:

vicarious liability for sexual battery and IIED by Willis

(Count 3); negligent supervision (Count 4); negligent hiring

(Count 5); and IIED by Swift (Count 6). The Court will address

each claim in turn.

1. Vicarious Liability for Sexual Battery and

IIED (Count 3)

According to Swift, it is entitled to summary judgment

on Count 3 because, as a matter of law, it cannot be held

vicariously liable for Willis’s alleged sexual assault. This

is because Willis was an independent contractor who lacked

authority to act on Swift’s behalf and, regardless, did not

act in furtherance of Swift’s interests. (Doc. # 86 at 11).

In opposition, Doe contends that Willis had apparent

authority to act on Swift’s behalf, enabling him to assault

Doe. (Doc. # 114 at 10-14).

In a diversity action, the Court must apply “the

substantive law of the forum state.” Tech. Coating

Applicators, Inc. v. U.S. Fid. & Guar. Co., 157 F.3d 843, 844

(11th Cir. 1998). Here, both parties agree that Florida law

governs Doe’s vicarious liability claim. (Doc. # 86 at 11 n.

12; Doc # 114 at 6). “In interpreting Florida law, we look

first for case precedent from the Florida Supreme Court. Where

we find none, we are “bound to adhere to decisions of the

state's intermediate appellate courts absent some persuasive

indication that the state's highest court would decide the

issue otherwise.”” Winn-Dixie Stores, Inc. v. Dolgencorp,

LLC, 746 F.3d 1008, 1021 (11th Cir. 2014) (citing Provau v.

State Farm Mut. Auto. Ins. Co., 772 F.2d 817, 820 (11th Cir.

1985). Here, there is no Florida Supreme Court case on point;

therefore, the Court looks to Florida appellate court

decisions.

“Under Florida law, an employer cannot be held

vicariously liable for the acts of an independent contractor;

the employer can only be held vicariously liable for the acts

of an employee/agent.” Martinez v. Miami-Dade Cnty., 32 F.

Supp. 3d 1232, 1237 (S.D. Fla. 2014) (citing Del Pilar v. DHL

Global Customer Solutions (USA), Inc., 993 So.2d 142, 145

(Fla. 1st DCA 2008)).

Furthermore, an employer generally cannot be held liable

for the tortious or criminal act of an employee, unless the

act was committed during the course of employment to further

a purpose or interest of the employer. Doe v. St. John’s

Episcopal Par. Day Sch., Inc., 997 F. Supp. 2d 1279, 1287-88

(M.D. Fla. 2014). “The conduct of an employee is considered

within the course and scope of employment when it (1) is of

the kind the employee is hired to perform, (2) occurs

substantially within the time and space limits authorized or

required by the work to be performed, and (3) is activated at

least in part by a purpose to serve the master.” Goss v. Hum.

Servs. Assocs., Inc., 79 So. 3d 127, 132 (Fla. 5th DCA 2012)

(internal citation omitted). The question of whether an

employee is acting within the course and scope of employment

is a question of law. Saullo v. Douglas, 957 So.2d 80, 86

(Fla. 5th DCA 2007).

Sexual assaults committed by employees are generally

held to be outside the scope of employment, and, therefore,

do not result in vicarious liability for the employer. Id. at

1288-89; Goss, 79 So. 3d at 132; S.D. v. City of Cape Coral,

No. 2:17-cv-111-JES-MRM, 2017 WL 4342363, at *3 (M.D. Fla.

Sept. 29, 2017); Hammer v. Lee Mem’l Health Sys., No. 2:18-

cv-347-JES-MRM, 2018 WL 3707832, at *4 (M.D. Fla. Aug. 3,

2018). An exception exists when the employee purported to act

on behalf of the employer or when the employee was aided by

the agency relationship. Nazareth v. Herndon Ambulance Serv.,

Inc., 467 So. 2d 1076, 1078 (Fla. 5th DCA 1985).

First, the Court notes that Doe acknowledged in her third

amended complaint that Willis’s actions were “motivated by

reasons personal only to him.” (Doc. # 15 at 19). Willis’s

job duties included transporting various materials and

mentoring Doe. Doe is correct: “There is no connection of the

job duties or Willis with Swift and the sexual assault of

[Doe].” (Id. at 19). Doe cannot contradict the allegations of

her own complaint in order to create a genuine issue of fact

at the summary judgment stage. See Reagan v. Targia, No. 6:09-

cv-2012-GAP-GJK, 2011 WL 13298576, at *3 n. 8 (M.D. Fla. Apr.

6, 2011) (barring plaintiff who alleged police officer was

acting within the scope of his authority when he arrested

plaintiff from arguing during summary judgment that the

officer was not acting within the scope of his authority).

Even if the Court looked past Doe’s contradictory

complaint and response to Swift’s motion for summary

judgment, the undisputed facts still demonstrate that Willis

acted outside the course and scope of his employment with

Swift. Neither party devotes much time to the issue of

Willis’s employment status. Instead most of the briefing on

Count 3 is devoted to whether Doe can demonstrate that Swift

was vicariously liable if Willis was an agent or employee of

Swift. Regardless, the Court need not determine Willis’s

employment status in deciding the Motion.

Assuming Doe can show that Willis was an employee or

agent of Swift, the company is still not vicariously liable

for Willis’s alleged sexual assault. The alleged assault did

not occur within the course and scope of Willis’s employment

because the act was not in furtherance of his employment with

Swift. See Mason v. Fla. Sheriff’s Self-Ins. Fund, 699 So. 2d

268 (Fla. 5th DCA 1997) (holding sexual assault by officer

not within scope of employment, even though officer was on

duty, in uniform, and serving a warrant on the women he

raped); see also Rivera v. Aaron Rents, Inc., No. 8:07-cv-

2190-JSM-TGW, 2008 WL 638353, at *3 (M.D. Fla. Mar. 5, 2008)

(finding supervisor’s sexual assault of employee did not

further employer’s business interest in leasing furniture and

was not motivated by a desire to serve the employer) (citing

Ayers v. Wal-Mart Stores, Inc., 941 F. Supp. 1163, 1168

(M.D.Fla.1996)).

Neither has Doe shown that Swift can be held vicariously

liable through either exception. Doe does not attempt to argue

that Willis committed the alleged assault on behalf of Swift;

however, she does argue that Willis was aided by his apparent

agency relationship. (Doc. # 114 at 10-13). The Court finds

that there are insufficient facts to demonstrate that

Willis’s alleged assault was aided by any apparent agency

relationship he might have had with Swift, as this exception

has been narrowly interpreted under Florida law.

Taking the evidence in the light most favorable to Doe,

the evidence establishes that Willis had access to Doe by way

of his relationship with Swift as a mentor. Willis’s role as

Doe’s mentor meant that he had an opportunity to assault her.

However, an employer providing its employee access to the

victim is insufficient to establish he was aided by his

employment. See Z.M.L. v. D.R. Horton, INC., No. 8:20-cv-

0672-KKM-SPF, 2021 WL 3501099, at *6 (M.D. Fla. June 11, 2021)

(“The fact that [the employee] was in the [victim’s] home by

virtue of his employment is not enough to demonstrate that

his agency helped him perpetrate a sexual assault.”)(citing

Agriturf Mgmt, Inc. v. Roe, 656 So. 2d 954, 955 (Fla. 2d DCA

1995)); Goss, 79 So. 3d at 132 (holding that an alleged child

sexual assault committed by an employee of a children’s group

care facility was not aided by the fact that the employee was

an agent of the care facility, despite access being by way of

his employment); Rivera, 2008 WL 638353 at *3 (determining

the exception was not satisfied even though the supervisor

“used isolated areas in the store to accomplish his illicit

purpose” and assaults took place during business hours);

Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So. 2d

353, 358 (Fla. 3rd DCA 2001) (finding that the exception was

not satisfied because “while [the employee] may have had

access to [the victim] because of his position as the Church

pastor . . . he was not engaging in authorized acts or serving

the interests of the Church during the time he tried to seduce

her or on the day he raped her”).

In her response, Doe’s counsel argues for the first time

that “it behooved [Doe] to be especially accommodating to

Willis” because he was her mentor. (Doc. # 114 at 13).

“[A]ttorney argument is not evidence.” Lehrfield v. Liberty

Mut. Fire Ins. Co., 396 F. Supp. 3d 1178, 1183 (S.D. Fla.

2019) (citing Bryant v. U.S. Steel Corp., 428 F. App’x 895,

897 (11th Cir. 2011)). While the Court is sympathetic to her

argument in theory, Doe points to no record evidence

demonstrating that she actually felt the need to be especially

accommodating to Willis. Indeed, the record evidence

demonstrates that Doe switched mentors several times due to

various issues with her mentors during the course of her

training by simply texting the Driver Qualification Leader –

undercutting the idea that Willis’s mentor role provided him

with anything more than access to Doe. (Doc. # 109-1 at 94:25–

99:12, 102:24–103:17, 113:14–116:13, 119:12–24, 134:5-21). In

short, based on the evidence in the record, Willis’s role as

her mentor only furthered the alleged assault by providing

Willis access to Doe; therefore, Doe has not demonstrated

that this case fits within the relevant exception.

Because Doe has not demonstrated sufficient evidence to

show that Swift would be vicariously liable for his alleged

sexual assault under Florida law even if he was the company’s

apparent agent or employee, the Court grants summary judgment

in favor of Swift as to Count 3.

2. Negligent Supervision and Negligent Hiring

(Counts 4 and 5)

Swift seeks summary judgment in its favor as to Doe’s

claims for negligent hiring and supervision (Counts 4 and 5)

to the extent her claims are based on Swift’s knowledge of

Willis’s criminal history. (Doc. # 86 at 21). According to

Swift, it could not have considered Willis’s 2011 First

Offender Plea Agreement when it hired Willis as an owner-

operator in 2018 because the inclusion of that criminal

history in a background check conducted after it was expunged

in 2017 would have violated the Fair Credit Reporting Act.

(Id. at 21-23). Doe argues that Swift should have known about

Willis’s history prior to its background check in 2018,

through the background checks it ran on Willis the other three

times it hired him. (Doc. # 114 at 14-18).

As an initial matter, the Court must determine what law

to apply to Doe’s claims. Swift contends that the Court should

apply Arizona law to Doe’s negligent supervision and hiring

claims. (Doc. # 86 at 17). Doe does not state in her a response

a position on whether Arizona law applies. “As a preliminary

matter, the court must characterize the legal issue and

determine whether it sounds in torts, contracts, property

law, etc. Once it has characterized the legal issue, it

determines the choice of law rule that the forum state applies

to that particular type of issue.” Grupo Televisa, S.A. v.

Telemundo Commc’ns Grp., Inc., 485 F.3d 1233, 1240 (11th Cir.

2007). “Under Florida law, a court makes a separate choice of

law determination with respect to each particular issue under

consideration.” Trumpet Vine Invs., N.V. v. Union Cap.

Partners I, Inc., 92 F.3d 1110, 1115 (11th Cir. 1996).

“In tort actions, federal courts sitting in diversity in

Florida employ Florida’s ‘most significant relationship’ test

to resolve conflicts of law.” Bell v. Miedema, 516 F. Supp.

3d 1340, 1342–43 (M.D. Fla. 2021). “The test involves

consideration of four relevant factors: (1) the place where

the injury occurred; (2) the place where the conduct causing

the injury occurred; (3) the domicile, residence,

nationality, place of incorporation and place of business of

the parties; and (4) the place where the relationship, if

any, between the parties is centered.” Jeffers v. Kerzner

Int’l Hotels Ltd., 319 F. Supp. 3d 1267, 1270 (S.D. Fla.

2010).

The Court finds that Arizona has the most significant

relationship to Doe’s negligent supervision and hiring

claims. The alleged assault occurred in Florida, but Willis

and Doe were driving through multiple states and their

location bears little significance to either the parties or

the negligent supervision and hiring claims. See, e.g.,

Stallworth v. Hospitality Rentals, 515 So.2d 413, 416 (Fla.

1st DCA 1987) (occurrence of car accident in Louisiana “bears

little or no significant relationship” to the rental

company’s potential liability under a rental agreement signed

in Florida).

The other three factors weigh in favor of applying

Arizona law. Swift’s corporate headquarters and place of

business is Phoenix, Arizona. Doc. # 86-2 at ¶ 2). This is

the location in which the company’s security and recruiting

departments process background checks and hire applicants.

(Id. at ¶ 5). As such, Swift’s alleged misconduct (negligently

hiring and supervising Willis) occurred in Arizona. See

Innovative Strategic Commc’ns, LLC v. Viropharma, Inc., No.

8:11-cv-1838-VMC-TBM, 2012 WL 3156587, at *10 (M.D. Fla. Aug.

3, 2012) (finding defendant’s conduct occurred at the place

where defendant was located at the time it engaged in such

conduct, not the place where the conduct was directed).

Additionally, no party is a Florida resident – Swift is a

citizen of Arizona, Doe is a citizen of Texas, and Willis is

a citizen of Georgia. See Universal Physician Servs. v. Del

Zotto, Case No. 8:16-cv-1274-CEH-JSS, 2019 WL 6033062, at *8

(M.D. Fla. Nov. 14, 2019) (finding residence of the parties

inconclusive where the parties’ connections were split

between two states).

Under Arizona law, to prove negligent supervision, “the

plaintiff must show the employer knew or should have known

the employee was incompetent and that the employer

subsequently failed to supervise the employee, ultimately

causing the harm at issue.” Hernandez v. Singh, No. CV-17-

08091-PCT-DWL, 2019 WL 367994, at *7 (D. Ariz. Jan. 30, 2019).

Similarly, the employer may be liable for negligent hiring

“not because of the relation of the parties, but because the

employer antecedently had reason to believe that an undue

risk of harm would exist because of the employment.” Contreras

v. Brown, No. CV-17-08217-PCT-JAT, 2019 WL 1980837, at *4 (D.

Ariz. May 3, 2019) (quoting Quinonez in re Quinonez v.

Andersen, 696 P.2d 1342 (Ariz. Ct. App. 1984)). “Thus, for a

negligent hiring claim to lie, the employer must have known

or had some reason to know of the employee’s incompetence

before hiring the employee.” Id. (citation omitted).

Swift is not entitled to summary judgment as to the issue

of its knowledge of Willis’s criminal history. Doe alleges

that Swift negligently hired Willis when it failed to run an

appropriate background check that would have noted his

criminal history of violence against a woman. (Doc. # 15 at

14). Doe’s expert, Mr. Millwee, has opined that Swift’s three

prior background checks were inadequate for failing to search

Clayton County, Georgia, criminal records and that an

adequate check and subsequent investigation would have

indicated that Willis’s criminal history made him unfit for

the job. (Doc. # 112-2 at 170-176). Mr. Millwee contends that,

even if Swift could not have seen Willis’s criminal history

when it hired him as an owner-operator in 2018, it should

have had knowledge of the underlying facts of that history

from its three prior background checks. (Doc. # 113-2 at

54:16-55:19, 62:5-22, 138:19-24, 139:9-22, 142:24-143:5,

156:1-21, 158:3-4, 162:10-17, 163:15-164:20). Taking the

evidence in the light most favorable to Doe, a reasonable

jury could find that this evidence is sufficient to

demonstrate that Swift was negligent in hiring Willis in 2018.

Doe’s negligent supervision claim survives for the same

reason. Based on what Swift allegedly should have known about

Willis’s criminal history – not to mention its earlier

decision to bar Willis from mentoring female drivers – a

reasonable jury could find Swift negligently supervised

Willis when it allowed him to mentor Doe, a female driver.

3. IIED by Swift (Count 6)

Swift contends that it is entitled to summary judgment

on Count 6 of Doe’s third amended complaint, which alleges

IIED by Swift. In Count 6, Doe only alleges the following:

On or about September 29, 2020, while working

within the course and scope of employment as a

supervising driver-trainer for Swift

Transportation[,] Defendant, Willis, intentionally

sexually assaulted Plaintiff, for his own sexual

gratification, while Plaintiff was under his

supervision as an employee of Swift Transportation.

The aforementioned sexual battery was committed

intentionally or recklessly, was extreme and

outrageous conduct, committed without the consent

of Plaintiff and against her will, causing severe

emotional distress.

(Doc. # 15 at ¶¶ 46-47). Count 6 does not contain any

additional allegation that Swift’s conduct specifically was

outrageous. As such, it is duplicative of its claim against

Swift for vicarious liability for Willis’s alleged assault.

Even if the Court looked past the language of Doe’s third

amended complaint, she still has not pointed to any record

evidence demonstrating that Swift itself acted outrageously,

intentionally, or recklessly.

In order to state an IIED claim, a plaintiff must allege

“1) deliberate or reckless infliction of mental suffering by

defendant; 2) by outrageous conduct; 3) which conduct of the

defendant must have caused the suffering; and 4) the suffering

must have been severe.” Griffin v. Polk Cnty. Sheriff’s Off.,

No. 8:09-cv-960-VMC-MAP, 2009 WL 5171754, at *2 (M.D. Fla.

Dec. 23, 2009) (citation omitted). While “there is no

definitive example of what constitutes ‘outrageous conduct,’

. . . Florida case law on the subject has evinced a

comparatively high standard.” Id. (quoting Golden v. Complete

Holdings, Inc., 818 F. Supp. 1495, 1499-1500 (M.D. Fla.

1993)). Specifically, “[t]he standard on a claim for

intentional infliction of emotional distress is high in the

employment realm and strongly disfavored.” Jenks v. Naples

Comm. Hosp., Inc., 829 F. Supp. 2d 1235, 1256 (M.D. Fla.

2011).

Furthermore, the Florida Supreme Court has provided the

following explanation of outrageous conduct:

Liability has been found only where the conduct has

been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.

Generally, the case is one in which the recitation

of the facts to an average member of the community

would arouse his resentment against the actor, and

lead him to exclaim, “Outrageous!”

Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-

79 (Fla. 1985) (quoting Restatement (Second) of Torts § 46

(1965)). “Under Florida law, whether the actor’s conduct is

atrocious and utterly intolerable in a civilized community,

and thus may form the basis of a claim for intentional

infliction of emotional distress, is a matter of law for the

court, not a question of fact.” Dependable Life Ins. Co. v.

Harris, 510 So.2d 985, 988 (Fla. 5th DCA 1987).

Doe cites no authority for the proposition, and the Court

has not independently found any authority, that an IIED claim

can proceed against an employer for allegedly failing to

properly hire and supervise an employee when the employer

cannot be held vicariously liable for the employee’s actions.

Contra Ayers v. Wal-Mart Stores, Inc., 941 F. Supp. 1163,

1168 (M.D. Fla. 1996) (finding that plaintiff had not

sufficiently alleged her employer’s conduct was outrageous

where she alleged that the employer “negligently trained and

supervised its managerial employees”). Doe does not point to

any record evidence demonstrating that Swift’s conduct here

was intentional or reckless. At this stage, Doe needs more

than attorney argument to maintain her IIED claim against

Swift.

Accordingly, the Court grants summary judgment as to

Count 6 in favor of Swift.

D. Doe’s Motion for Summary Judgment

Doe seeks summary judgment on five of Swift’s nineteen

defenses. (Doc. # 73). Doe asserts that she is entitled to

judgment on Swift’s Fourth, Seventh, Eighth, Tenth, and

Eleventh defenses because Swift is a “nonsubscriber” under

Texas’s worker’s compensation law and, therefore, unable to

present certain defenses under either Texas or Florida law.

(Id. at 1-2). According to Doe, the VEI Agreement, through

which she agreed to participate in Swift’s Voluntary Employee

Injury Benefit Plan, bars Swift from asserting that Doe should

have pursued her claim through the worker’s compensation

system and from using the following defenses: “(1) that the

employee was guilty of contributory negligence; (2) that the

injury or death was caused by the negligence of a fellow

employee; or (3) that the employee had assumed the risk of

injury or death.” (Id. at 6) (quoting Doc. # 104-1 at 59). In

response, Swift argues that (1) neither Texas nor Florida law

prevents them from utilizing these defenses and (2) the VEI

Agreement does not bar such defenses, as Doe has specifically

pled that her injuries were not sustained during the course

of her employment, and, therefore, are not covered by the

agreement. (Doc. # 104 at 10).

The defenses at issue assert the following arguments:

Doe’s claims are barred because worker’s compensation is the

exclusive remedy (Fourth defense); Doe was negligent and her

claims should barred or reduced pursuant to the doctrine of

comparative negligence (Seventh defense); Doe’s damages were

caused by the conduct of others for whom Swift is not liable

(Eighth defense); Swift is entitled to all setoffs and

limitations of liability pursuant to the doctrine of

comparative fault, including Fla. Stat. § 768.81 (Tenth

defense); Swift is entitled to the benefit and protection of

§ 768.81, including entry of judgment based on the percentage

of fault of Swift (Eleventh defense). (Doc. # 20).

At the start of Doe’s employment with Swift, she signed

the VEI Agreement (Doc. # 104-1), that she now alleges bars

the company from asserting several defenses. As part of the

agreement, Doe agreed that she would notify Swift’s Safety

Department within twenty-four hours after sustaining an

injury on the job and acknowledged that any claim or dispute

relating to an on-the-job injury would be subject to

arbitration. (Id. at 59-60). The VEI Agreement defines

coverage under the policy and specifically excludes any

injury that “arose out of an act of a third person intended

to injure you because of personal reasons and not directed at

you as an employee or because of your employment.” (Id. at

21-22). Importantly, in her third amended complaint, Doe

explicitly alleges that “the sexual assault was not connected

with her employment as a driver, and her sexual assault by

Willis was motivated by reasons personal only to him.” (Doc.

# 15 at 19). She further alleged that “[t]here is no

connection of the job duties of Willis with Swift

Transportation and the sexual assault[.]” (Id.).

Doe dedicates much of her Motion to a choice of law

analysis in which she argues that Texas law applies to Swift’s

defenses. (Doc. # 73 at 6-10). However, the Court need not

engage in such an analysis. Doe has not shown, under either

Texas or Florida law, that her claims are subject to the

worker’s compensation laws she cites in support of her Motion.

Under Texas Law, the worker’s compensation scheme

applies if “the injury arises out of and in the course and

scope of employment.” Texas Labor Code § 406.031. Texas

excepts from coverage injuries that “arose out of an act of

a third person intended to injure the employee because of a

personal reason and not directed at the employee as an

employee or because of the employment[.]” Texas Labor Code §

406.032(1)(C). Texas Labor Code Section 406.033 provides:

In an action against an employer by or on behalf of

an employee who is not covered by workers’

compensation insurance . . . to recover damages for

personal injuries or death sustained by an employee

in the course and scope of the employment, it is

not a defense that:

(1) the employee was guilty of contributory

negligence;

(2) the employee assumed the risk of injury or

death; or

(3) the injury or death was caused by the

negligence of a fellow employee.

Texas Labor Code § 406.033(a) (emphasis added).

Similarly, Florida’s worker’s compensation scheme

provides that an “employer must pay compensation or furnish

benefits required by this chapter if the employee suffers an

accidental compensable injury or death arising out of work

performed in the course and the scope of employment.” Fla.

Stat. § 440.09. Florida law provides that an employer that

fails to secure worker’s compensation “may not plead as a

defense that the injury was caused by negligence of a fellow

employee, that the employee assumed the risk of the

employment, or that the injury was due to the comparative

negligence of the employee.” Fla. Stat. § 440.11(1)(a).

The Court need not decide which law applies because both

Texas and Florida’s worker’s compensation schemes would only

apply to Doe’s claim if her injury arose out of and in the

course and scope of employment. Yet Doe has explicitly pled

that her injury was “not connected to her employment” with

Swift and that Willis was motivated “by reasons personal only

to him.” (Doc. # 15 at 19). Doe implies that a nonsubscriber

employer is barred from asserting common law defenses

regardless of the nature of the plaintiff’s claim. Both Texas

and Florida law, however, only bar such defenses from being

raised in actions for injuries sustained in the course of

employment. See Texas Labor Code § 406.033(a) (barring common

law defenses in actions to recover damages for personal

injuries or death sustained by an employee in the course and

scope of the employment”); Fla. Stat. § 440.11 (establishing

that employers cannot plead common law defenses when the

employee claims “an accidental compensable injury or death

arising out of work performed in the course and the scope of

employment”). In her Motion, Doe does not point to any facts

that demonstrate that her injury arose out of and in the

course and scope of her employment.

Further, the VEI Agreement on which Doe relies tracks

the language in both Texas and Florida’s worker’s

compensation laws. It excludes explicitly any injury that

arose out of an act of a third person intended to injure [the

employee] because of personal reasons and not directed at the

[the employee] as an employee or because of the [employee’s]

employment.” (Doc. # 104-1 at 21-22). The Court notes that

the language in Doe’s third amended complaint tracks the

language in the VEI Agreement, allowing her to avoid the

mandatory arbitration requirement. The Court will not allow

Doe to use the VEI Agreement as both a sword and a shield. In

asserting that summary judgment is warranted, Doe relies on

the VEI Agreement but ignores the provisions of the agreement

that do not benefit her. Doe conceded in her operative

complaint that Willis’s alleged assault was an intentional

tort committed for a personal reason and not connected to

Doe’s work. As such, her claim was excluded from the worker’s

compensation schemes in Texas and Florida as well as the VEI

Agreement between the parties, and she cannot rely on any of

those sources to bar Swift from asserting its Fourth, Seventh,

Eighth, Tenth, and Eleventh defenses.

Therefore, Doe’s Motion for Partial Summary Judgment

(Doc. # 73) is denied.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiff Jane Doe’s Motion for Partial Summary Judgment

(Doc. # 73) is DENIED.

(2) Defendant Swift Transportation Co. of Arizona, LLC’s

Daubert Motion to strike Kimberly Riddle’s testimony

(Doc. # 112) is DENIED.

(3) Defendant Swift’s Daubert Motion to strike Steven

Millwee’s testimony (Doc. # 113) is DENIED.

(4) Defendant Swift’s Motion for Summary Judgment (Doc. #

86) 1s GRANTED as to Counts 3 and 6 of Doe’s third

amended complaint and DENIED as to Counts 4 and 5.

DONE and ORDERED in Chambers in Tampa, Florida, this 5th

day of April, 2023.

lagi Or. HMunenby (aiVh

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

47]