# Bertram v. Progressive Southeastern Insurance Co

> District Court, W.D. Louisiana · January 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10195411

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** January 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

LAUREN BERTRAM, ET AL CASE NO. 2:19-CV-01478 LEAD

VERSUS JUDGE JAMES D. CAIN, JR.

PROGRESSIVE SOUTHEASTERN MAGISTRATE JUDGE KAY
INSURANCE CO ET AL

MEMORANDUM RULING

Before the Court is a “Motion for Summary Judgment” (Doc. 154) filed by
Defendant, Convermat Corporation (“Convermat”), who moves to dismiss all claims
asserted by Plaintiffs.
FACTUAL STATEMENT
The lawsuit involves a vehicle accident that occurred on July 16, 2019. Defendant,
Justin Chong was operating a Freightline tractor towing a trailer loaded with paper rolls.
The tractor experienced a blow-out of the front driver’s side tire causing Chong to lose
control of the tractor, which crossed the solid yellow line and struck a vehicle driven by
Stephen Bertram in the oncoming lane. Mr. Bertram did not survive the accident.
Plaintiffs allege that the unsecured paper rolls shifted during transport and caused
or contributed to the tractor-trailer collision.
Plaintiffs have named Convermat as one of several Defendants. Plaintiffs allege
that Convermat was negligent in hiring Mallory International, LLC (“Mallory”) to provide
freight-forwarding services and brokerage services.1 Plaintiffs have consented to the
dismissal of this claim. Plaintiffs allege that Mallory is the agent of Convermat, and thus

Convermat is vicariously liable for the actions or inactions of Mallory.2 Convermat,
contracts with Mallory to warehouse and load its paper rolls for transportation from
Mallory’s facility. Mallory is a licensed freight-forwarded/broker.3
Defendant, Blue Grace Logistics, LLC (Blue Grace) is a licensed freight broker and
Defendant, Empire National, Inc. (“Empire”) was at all relevant times a licensed motor
carrier.4 Justin Chong at all relevant times was a licensed commercial vehicle operator.5

Convermat did not receive any instructions regarding cargo securement for the
paper rolls from Blue Grace or from any other third-party logistics provider.6 The
Warehousing Agreement between Convermat (identified therein as “Depositor”) and
Mallory (identified therein as “Warehouseman”) includes the following relevant provision:
It is hereby agreed and understood that WAREHOUSEMAN is entering into
this Agreement as an independent contractor and that all of
WAREHOUSEMAN’S personnel engaged in work to be done under the
terms of this Agreement are to be considered as employees of
WAREHOUSEMAN and under no circumstances shall they be construed or
considered to be employees of DEPOSITOR. WAREHOUSEMAN shall
supervise the performance of its own employees in providing services for
DEPOSITOR and shall have control over the manner and means by which
its services are performed, subject to the terms of this Agreement as well as
any written and mutually agreed upon amendments thereto. Nothing in this
Agreement will be interpreted as creating a relationship of principal and
agent, partnership or joint venture between the parties. Neither DEPOSITOR
nor WAREHOUSEMAN will represent in any manner to any third party that

1 Doc. 88, ¶ 41.
2 Id.
3 Defendant’s exhibit 4, Tom Kaden deposition, pp. 28-29;187.
4 Defendant’s exhibit 6, Sergey Korolchuk deposition, pp. 26-27.
5 Defendant’s exhibit 2, Justin Chong deposition, p. 26.
6 Defendant’s exhibit 1, Sam Moon deposition, p. 76.
WAREHOUSEMAN is an agent of, or affiliated with, DEPOSITOR in any
capacity other than as an independent contractor, and nothing in this
Agreement shall be construed to be inconsistent with such status.7

Convermat did not train Mallory’s employees on how to perform the warehousing
operations provided by Mallory pursuant to the Warehousing Agreement.8
Convermat retained Blue Grace as a broker to arrange for the transport of paper rolls
from Mallory’s warehouse in Texas to Convermat’s customer in North Carolina.9 Blue
Grace, as the broker, was responsible for retaining a qualified motor carrier, and it retained
Empire to serve as the motor carrier for the transport in question.10 At the time Convermat
entered into the Warehousing Agreement with Mallory, the proposed scope of work
estimated that Mallory would handle the loading and unloading of approximately 200
trailers per month on behalf of Convermat.11
SUMMARY JUDGMENT STANDARD

A court should grant a motion for summary judgment when 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. The party moving for summary judgment is initially
responsible for identifying portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
The court must deny the motion for summary judgment if the movant fails to meet this

burden. Id.

7 Defendant’s exhibit 3, pp. 6-7.
8 Defendant’s exhibit 3, pp. 185, 187, 196.
9 Defendant’s exhibit 4, p. 76.
10 Defendant’s exhibit 8, pp. 98-100.
11 Defendant’s exhibit 4, p. 47.
If the movant makes this showing, however, the burden then shifts to the non-
moving party to “set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted). This
requires more than mere allegations or denials of the adverse party's pleadings. Instead, the
nonmovant must submit “significant probative evidence” in support of his claim. State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249 (citations omitted).

A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material

fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

LAW AND ANALYSIS
Plaintiffs allege that Mallory was grossly negligent in breaching its duty to properly
secure the load of paper inside the trailer attached to the tractor operated by Chong.12 The
securement of the load was investigated by Louisiana State Police Trooper Timothy Guinn,

12 Plaintiffs’ Third Amended Complaint, ¶ 42.
a Commercial Vehicle Enforcement officer.13 Specifically, Trooper Guinn, found that the
subject load violated 49 CFR § 393.122(B), the Federal Motor Carrier Safety Regulation
specific to the securement of paper rolls transported with eyes vertical in a sided vehicle.14

Trooper Guinn determined that no securement devices were used on the paper rolls.15
Plaintiffs assert that Mallory employees were solely responsible for loading the
paper rolls at issue into the trailer owned and operated by Defendant Empire.16 Plaintiffs
argue that Mallory was acting on behalf of Convermat as an agent when it loaded the trailer
with paper rolls.17

Plaintiffs maintain that because Mallory was Convermat’s agent, Convermat is
vicariously liable for the acts of its agent.
Under Louisiana law, the doctrine of vicarious liability, or respondeat superior, is
expressed in Louisiana Civil Code art. 2320, which states that “[m]asters and employers
are answerable for the damage occasioned by servants and overseers, in the exercise of the

functions in which they are employed.” Urbeso v. Bryan, 583 So. 2d 114, 116–18 (La. Ct.
App. 1991). Under LSA-C.C. art. 2985, a principal may be liable for its agent's actions;
however, a principal is not liable for any actions by an independent contractor. Urbeso,
583 So.2d at 116; citing Williams v. Gervais F. Favrot Company, 499 So.2d 623 (La.App.
4th Cir.1986). In determining whether vicarious liability will attach under Louisiana law,

13 Plaintiffs’ P-5, Trooper Timothy Guinn, p. 8.
14 Id. p. 25:12, 14, 15.
15 Id. p. 25:20.
16 Id.
17 Id. ¶ 41.
it must be determined whether an agency (i.e. master-servant or employer-employee)
relationship or an independent contractor relationship exists. Id.

In general, “[t]he right of control and supervision, selection and engagement,
payment of wages, and the power of dismissal determines whether an ‘employee’ status
exists.” Id. at 116-17, citing Ermert v. Hartford Insurance Co., 559 So.2d 467 (La.1990).
An employee/agent has a close relationship and is subject to control by the employer or
principal. However, agency is never presumed. Instead, “it must be clearly established.”
Id.

In Louisiana, “an agency relationship is created by either the express appointment
of a mandatory under Civil Code Article 2985, or by some implied appointment which
traces to apparent authority.” Administrators of Tulane Educ. Fund v. Biomeasure, Inc.,
687 F. Supp. 2d 620, 629–30 (E.D. La. 2009). “Implied or apparent agency exists if the
principal has the right to control the conduct of the agent and the agent has the authority to

bind the principal.” Urbeso, 583 So.2d at 116. “Apparent agency arises when the principal
has acted so as to give an innocent third party a reasonable belief that the agent had the
authority to act for the principal … and the third party reasonably relies on the manifested
authority of the agent.” Barrilleaux v. Franklin Found. Hosp., 96-0343 (La. App. 1 Cir.
11/8/96), 683 So. 2d 348, 354. Liability of a principal for the acts of an agent does not exist

unless the agent is a servant who “has a close economic relationship and is subject to
control by the principal” Id. (Emphasis supplied.) “A servant offers personal services for a
price and must submit to the control of his physical conduct and time.” Id.
Furthermore, Louisiana courts have held that “the mere existence of an agency
relationship does not impose vicarious liability on the principal for the physical torts of a

non-servant agent.” Miller v. Universal Underwriters Insurance Co., 308 So.2d 842 (La.
App. 2 Cir. 1975). “The determination of whether a party may be held vicariously liable
for the torts of another depends on whether the tortfeasor is characterized as a servant.”
Wetstone v. Dixon, 616 So.2d 764 (La. App. 1 Cir. 1993). A master or employer is liable
for the tortious conduct of a servant or employee which is within the scope of authority or
employment, but a principal is not liable for the physical torts of a non-servant agent. Price

v. North, 21-0236 (La. App. 1 Cir. 10/18/21), 331 So.3d 959, 970 “A servant is defined as
one employed to perform services in the affairs of another and who is subject to the other's
control or right to control with respect to the physical conduct in the performance of the
services.” Id. A servant may possess the qualities of an agent, but all agents do not qualify
as servants, and the master-servant relationship cannot be equated with the principal-agent

relationship. Aupied v. Joudeh, 96-202 (La. App. 5 Cir. 4/9/97), 694 So.2d 1012, 1016.
Converse to an agency relationship, an independent contractor relationship exists
when the following can be established according to these factors:
1. There is a valid contract between the parties;
2. The work being done is of an independent nature such that the contractor may employ

non-exclusive means in accomplishing it;
3. The contract calls for specific piecework as a unit to be done according to the
independent contractor's own methods without being subject to the control and direction
of the principal, except as to the result of the services to be rendered;
4. There is a specific price for the overall undertaking; and
5. Specific time or duration is agreed upon and not subject to termination at the will of

either side without liability for breach.38
“The most important test involves the employer's control over the work.” It is not
whether the principal/employer exercises control or supervision, but whether the right to
exercise control exists. Id. citing Tardo v. New Orleans Public Service Inc., 353 So.2d 409
(La.App. 4th Cir.1977).
Convermat asserts that it is not a licensed motor carrier, freight-forwarder, or broker,

and it relies on third-party logistic providers to select qualified motor carriers to haul paper
rolls to its customers. Convermat asserts that Mallory was responsible for unloading,
storing, and subsequently re-loading the paper rolls onto the trailer operated by Chong for
delivery to Convermat’s customer in North Carolina.
Convermat argues that the Warehousing Agreement between Convermat and

Mallory establishes that Mallory is an independent contractor as opposed to a
principal/agency relationship. Convermat relies on the following provision contained in
the Warehousing Agreement:
ARTICLE XVI. INDEPENDENT CONTRACTOR
It is hereby agreed and understood that [Mallory] is entering into this
Agreement as an independent contractor and that all of [Mallory’s] personnel
engaged in work to be done under the terms of this Agreement are to be
considered as employees of [Mallory] and under no circumstances shall they
be construed or considered to be employees of [Convermat]. [Mallory] shall
supervise the performance of its own employees in providing services for
[Convermat] and shall have control over the manner and means by which its
services are performed, subject to the terms of this Agreement as well as any
written and mutually agreed upon amendments thereto. Nothing in this
Agreement will be interpreted as creating any relationship of principal and
agent, partnership or joint venture between the parties. Neither [Convermat]
nor [Mallory] will represent in any manner to any third party that [Mallory]
is an agent of, or affiliated with, [Convermat] in any capacity other than as
an independent contractor, and nothing in this Agreement shall be construed
to be inconsistent with such status.18

The Warehousing Agreement also provided that Mallory would furnish sufficient
personnel, equipment, and other accessories necessary to perform “efficiently and with
safety” the services requested by Convermat, including receiving, unloading, reloading,
storage, trailer inspections, and warehouse storage of products.19 Convermat also asserts
that the Warehousing Agreement requires that Mallory “comply with all laws, ordinances,
rules and regulations of Federal, State, municipal and other governmental authorities and
the like in connection with the safeguarding, receiving, storing and handling of goods.20
Thus, Convermat posits that Mallory was an independent contractor because Mallory
maintained the right and obligation to control the manner and means by which all services
to Convermat were to be performed by Mallory’s employees.
To buttress its position, Convermat provides the deposition testimony of Tom
Kaden, Mallory’s corporate representative, who acknowledged that Convermat did not
control the work performed by Mallory at its warehouse, provide training to any of the
Mallory employees, instruct Mallory’s employees on the manner in which trailers were

loaded, or otherwise dictate who Mallory would hire.21

18 Defendant’s exhibit 3, pp. 6-7.
19 Id. p. 1.
20 Id. p. 7.
21 Defendant’s exhibit 4, pp. 185, 187, 196.
Convermat argues that the Warehousing Agreement expressly states that the
relationship between Convermat and Mallory is that of an independent contractor.

Convermat further argues that Plaintiffs cannot establish through evidence that either
apparent or implied authority existed between these parties.
Plaintiffs maintain that there are genuine issues of material fact regarding (1)
Mallory’s status as Convermat’s agent of independent contractor and (2) that Convermat
is liable because it retained control over load securement, and (3) approved Mallory’s
unsafe work practice of loading paper rolls without the required load securement.

Plaintiffs assert that Convermat knew or should have known of the law regarding
load securement. Specifically, Plaintiffs refer to the Federal Motor Carrier Safety
Regulation, part 393,22 which states, in pertinent part, that “[c]argo must be contained,
immobilized or secure in accordance with this subpart to prevent shifting upon or within
the vehicle to such an extent that the vehicle’s stability or maneuverability is adversely

affected.”23
The minimum requirements of cargo securement (load securement) applicable to
jumbo paper rolls are covered in 49 CFR §393.122. The applicable provisions are provided
below:
Each roll must be prevented from forward movement by contact with vehicle
structure, other cargo, blocking or tiedowns. (2) each roll must be prevented
from rearward movement by contact with other cargo, blocking, friction mats
or tiedowns.

§ 393.122 What are the rules for securing paper rolls?

22 49 CFR § 393.100.
23 Id.
(a) Applicability. The rules in this section apply to shipments of paper rolls
which, individually or together, weigh 2268 kg (5000 lb) or more.
Shipments of paper rolls that weigh less than 2268 kg (5000 lb), and paper
rolls that are unitized on a pallet, may either be secured in accordance
with the rules in this section or the requirements of §§ 393.100 through
393.114.

(b) Securement of paper rolls transported with eyes vertical in a sided
vehicle.

(1) Paper rolls must be placed tightly against the walls of the vehicle, other
paper rolls, or other cargo, to prevent movement during transit.

(2) If there are not enough paper rolls in the shipment to reach the walls of
the vehicle, lateral movement must be prevented by filling the void,
blocking, bracing, tiedowns or friction mats. The paper rolls may also be
banded together.

(3) When any void behind a group of paper rolls, including that at the rear
of the vehicle, exceeds the diameter of the paper rolls, rearward
movement must be prevented by friction mats, blocking, bracing,
tiedowns, or banding to other rolls.

(i) If a paper roll is not prevented from tipping or falling sideways or
rearwards by vehicle structure or other cargo, and its width is more
than 2 times its diameter, it must be prevented from tipping or falling
by banding it to other rolls, bracing, or tiedowns.

(ii) If the forwardmost roll(s) in a group of paper rolls has a width greater
than 1.75 times its diameter and it is not prevented from tipping or
falling forwards by vehicle structure or other cargo, then it must be
prevented from tipping or falling forwards by banding it to other rolls,
bracing, or tiedowns.

(iii) If the forwardmost roll(s) in a group of paper rolls has a width equal
to or less than 1.75 times its diameter, and it is restrained against
forward movement by friction mat(s) alone, then banding, bracing, or
tiedowns are not required to prevent tipping or falling forwards.

(iv) If a paper roll or the forwardmost roll in a group of paper rolls has a
width greater than 1.25 times its diameter, and it is not prevented from
tipping or falling forwards by vehicle structure or other cargo, and it
is not restrained against forward movement by friction mat(s) alone,
then it must be prevented from tipping or falling by banding it to other
rolls, bracing or tiedowns.

(5) If paper rolls are banded together, the rolls must be placed tightly
against each other to form a stable group. The bands must be applied
tightly, and must be secured so that they cannot fall off the rolls or to
the deck.
(6) A friction mat used to provide the principal securement for a paper
roll must protrude from beneath the roll in the direction in which it is
providing that securement.

Plaintiffs also submit that the Warehousing Agreement, which expressly states that
Convermat maintained the right to control the manner in which its products are shipped.
Plaintiffs rely on the following pertinent provisions:
ARTICLE IX. DELIVERY REQUIREMENTS
(A) No goods shall be delivered or transferred except upon receipt by
[MALLORY] of complete instructions properly signed by [CONVERMAT].
….
ARTICLE X. EXTRA AND SPECIAL SERVICES
(A) Warehouse labor required for services other than ordinary
handling and storage must be authorized by [CONVERMAT] in
advance. Rates and charges will be provided for herein or as mutually
agreed by the parties hereto (see Schedule "A").
…
(C) Dunnage, bracing, package materials or other special supplies
such as straps, mats, etc. used in shipping are chargeable to
[CONVERMAT] and may be provided at a mutually agreed upon
charge (see Schedule "A").
….
ARTICLE XVII. COMPLIANCE WITH LAWS, ORDINANCES, RULES
AND REGULATIONS

(A) [MALLORY] shall comply with all laws, ordinances, rules and
regulations of Federal, State, municipal and other governmental
authorities and the like in connection with the safeguarding,
receiving, storing and handling of goods.

(B) [CONVERMAT] shall be responsible for advising
[MALLORY] of all laws, ordinances, rules and regulations of
Federal, State, municipal and other governmental authorities
and the like relating specifically to the safeguarding,
receiving, storing and handling of [CONVERMAT’S]
products.

ARTICLE XXIX. ACCURATE INFORMATION
[CONVERMAT] will provide [MALLORY] with information
concerning the goods covered by this Agreement which is
accurate, complete and sufficient to allow [MALLORY] to
comply with all laws and regulations concerning the storage,
handling and transporting of those goods…24

Plaintiffs argue that even though Mallory provided the personnel, equipment, and
facility to perform the services requested by Convermat, Mallory looked to Convermat for
specific instructions regarding the shipping of its products. Thus, Convermat was
contractually responsible for instructing Mallory on any delivery requirements for
authorizing labor and devices for securement and advising Mallory on rules/regulations
specific to transporting paper rolls.
In addition, Plaintiffs submit Mallory’s corporate representative deposition, which
they argue creates issues of fact regarding (1) Mallory’s agency status and (2) Convermat’s
right to control load securement. The Mallory Corporate representative, Tom Kaden,

24 Defendant’s exhibit 3, Warehousing Agreement (emphasis added) Doc. 154-5.
testified that Convermat is the shipper and Mallory acts “as an agent on behalf of the
client.”25 He further explained, “In general, we don’t act as a shipper, so we act as an agent
for the shipper. The shipper normally is our customer.”26

Plaintiffs submit Mr. Kaden’s testimony explaining language contained in the bill
of lading, (“Mallory Alexander International, agents for Convermat.”)27 When asked to
explain, Mr. Kaden testified:
Q. “Okay. So he’s signing on behalf of Convermat. That’s the language that
states he’s the agent; is that right?

A. Yes.28

Mr. Kaden also testified that Convermat was responsible for instructing Mallory on
load securement. In other words, all instructions for load securement were received from
and/or given by Convermat, and Mallory relied upon its client (Convermat) to advise it of
any special loading requirement.29 Mr. Kaden testified that Convermat gave no instructions
regarding the securement for the subject load.30
To create a genuine issue of material fact, Plaintiffs also submit the Convermat
corporate deposition testimony of Samuel Moon. Mr. Moon testified Convermat was
responsible for informing Mallory as to any special instructions, including rules,
ordinances, laws and regulations, that concerned load requirements of the subject paper
rolls, but Convermat failed to do so.31

25 Plaintiffs’ exhibit P-1, p. 55:4-5.
26 Id. p. 55:18-20.
27 Id. pp. 111,115.
28 Id.
29 Id. pp. 64, 168.
30 Id. p. 162.
31 Plaintiffs’ exhibit P-2, pp. 33, 55, 60, 62.
Convermat maintains that the driver and/or the motor carrier are responsible for
ensuring the load is properly secured. However, Mr. Moon testified that he was not certain

if Convermat communicated to Mallory or Blue Grace that the driver had the authority to
incur additional services as described in the Warehousing Agreement.32 The driver, Mr.
Chong, testified that he was instructed to stay in his vehicle and was not allowed to enter
the loading dock due to safety concerns.33
Plaintiffs submit the report of Randy Phares, an expert in the field of packaging,
distribution, and shipping, wherein Mr. Phares opined that Convermat was contractually

obligated to notify Mallory of the applicable load securement rules.34
Louisiana courts have explained that the “existence of an independent contractor
agreement is not necessarily dispositive,” and that courts must “inquire as to the real nature
of the relationship and the degree of control exercised. Henderson v. Atmos Energy, 509 F.
Supp. 3d 625, 634 (E.D. La. 2020), aff'd sub nom. Henderson v. Atmos Energy Corp., 2022

WL 3657191 (5th Cir. Aug. 25, 2022) citing Arroyo v. E. Jefferson Gen. Hosp., 956 So. 2d
661, 664 (La. App. 5 Cir. 2007).
The Court finds that Plaintiffs have submitted summary judgment evidence to create
an issue of material fact for trial as to whether or not a principal/agency relationship existed
between Convermat and Mallory. The Court further finds that even if there is an

independent contractor relationship between Convermat and Mallory, there is a genuine
issue of material fact for trial as to whether or not Convermat is liable for failing to give

32 Id. p. 70.
33 Plaintiffs’ exhibit P-3, Chong deposition, pp. 61-80.
34 Plaintiffs’ exhibit P-4, pp. 7-8.
Mallory proper instructions regarding the securement requirements for transportation of
the paper rolls, thus authorizing an unsafe work practice. See Echeerry v. Jazz Casino Co.,
LLC, 988 F.3d 221, 233 (Sth Cir. 2021) (court finds that the evidence was sufficient for a
reasonable jury to conclude that the principal authorized the unsafe work practices of its
contractor, when it authorized the contractor’s movement of a manlift on the Casino’s
premises without a flagman. The casino was found liable for the tortious acts of its
contractor).
CONCLUSION
For the reasons set forth herein, the Motion for Summary Judgment (Doc. 154) filed
by Defendant, Convermat Corporation is DENIED.
THUS DONE AND SIGNED in Chambers on this 25th day of January, 2023.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10195411. Public record. Not legal advice.