Opposition Brief — Neal v. Midwestern Distribution, Inc.

Supreme Court, U.S. |

FILED *

MAR 4 W6T

IOL, JR,

CLERK

No. 86-1269 %

IN THE

Supreme Court Of The United States

October Term, 1986

HENRY NEAL,

Administrator of the Estate of

ROGER F. STROH

Petitioner,

V.

MIDWESTERN DISTRIBUTION, INC.

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

James H. Anderson

(Counsel of Record)

Alex L. Holtsford, Jr.

Hill, Hill, Carter, Franco,

Cole & Black

Post Office Box 116

Montgomery, Alabama 36195

(205) 834-7600

Attorneys for Respondent

i

STATEMENT OF QUESTIONS PRESENTED

FOR REVIEW

(1) Does a conflict exist between the United States Circuit

Courts of Appeal involving interpretation of 49 U.S.C. §§

10927 (a) (1) and 11107 (a)?

(2) Should this Honorable Court review a conflict among

United States Circuit Courts of Appeals involving state sub-

stantive law questions?

ii

LIST OF CORPORATE AFFILIATIONS

In accordance with Rule 28.1 of the Rules of the Supreme

Court of the United States, the following is a list of corporate

affiliates of Midwestern Distribution, Inc.:

Midwestern Distribution, Inc.

Leaseway Transportation, Inc.

Allstate Insurance Company

Northbrook Insurance Company

Sears, Roebuck & Company

Mission Insurance Company

National Union Insurance Company

Fireman’s Fund Insurance Company

iii

TABLE OF CONTENTS

Page

STATEMENT OF QUESTIONS PRESENTED

FOR REVIEW i

LIST OF CORPORATE AFFILIATIONS -_.....--_- il

UE I iv

STATEMENT OF THE CASE l

Aen We Bete AMOUR 2

REASONS FOR DENYING THE WRIT . 3

CONCLUSION _... 7

Iv

TABLE OF AUTHORITIES

Cases:

Alford v. Major, 470 F.2d 132 (7th Cir. 1972)

Bonner v. City of Prichard, 661 F.2d

1206 (11th cir. | RF tei, Se

Bryant v. Refrigerated Transport Co., 418 So.2d 281

(te: Det UL Age. Tyee)

Garrett v. Superior Trucking Co., 162 Ga. App.

558, 290 S.E.2d 528 (1982) Siesta Lt

Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1984)

Proctor v. Colonial Refrigerated Transportation,

Inc., 494 F.2d 89 (4th Cir. 1974)

Riddle v. Trans-Cold peer: Inc., 530 F. staal

186 (S.D. Ill. 1982) - ;

Ruhlin v. New York Life Ins. Co., 304 U.S. 202,

58 S.Ct. 860, 82 L.Ed. 1290 (1938) -

Transamerican Freight Lines, Inc. v. Brada Miller

Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229,

46 L.Ed.2d 169 (1975)

White v. Excalibur Ins. Co., 599 F.2d 50

(5th Cir.) , cert. denied 444 U.S. 965,

100 S.Ct. 452, 62 L.Ed.2d 377 (1979)

No. 86-1269

IN THE

Supreme Court Of The United States

October Term, 1986

HENRY NEAL,

Administrator of the Estate of

ROGER F. STROH

Petitioner,

v.

MIDWESTERN DISTRIBUTION, INC.

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

This is a wrongful death case brought by the administrator

of a deceased truck driver's estate against Midwestern Distribu-

tion, Inc. (““Midwestern”) , the company which was the lessee

of the truck in which the deceased (“‘Stroh’’) was killed. Mid-

western leased the truck from a corporation, Tractor 6540, Inc.,

and Stroh was one of two truck drivers who were alternating

the driving duties for Tractor 6540. Petitioner’s theory of lia-

2

bility against Midwestern is that 49 U.S.C. §§ 10927 (a) (1) and

11107(4) and the implementing regulation of the Interstate

Commerce Commission place the responsibility for Stroh’s

death on the lessee carrier, Midwestern.

The district court held, and the Eleventh Circuit affirmed,

that the statutory scheme in question is intended to protect

only “members of the public,” and Stroh, as an employee of

the lessor and a “statutory employee” of Midwestern, does not

fall within the protected class of “members of the public.”

Consequently, summary judgment was entered and later af-

firmed in favor of Midwestern because the aforesaid federal

statutes did not create a cause of action for Stroh and state

worker’s compensation law barred any other possible cause of

action in tort.

SUMMARY OF THE ARGUMENT

Petitioner brought this tort action based on a theory of lia-

bility grounded in Interstate Commerce Commission regula-

tions. Undoubtedly, those federal statutes and regulations

create a cause of action only for “members of the public.”

These statutory laws were intended to destroy independent

contractor status for lessors of trucks engaged in interstate com-

merce so that an injured member of the public could recover

for his injuries from the more financially stable lessee carriers.

Petitioner argues that these regulations also apply to drivers

employed by the lessor so as to allow those drivers to recover

for their injuries against the lessee carriers. This argument is

made even though there is no dispute that the driver is also a

“statutory employee” of the lessee carrier.

It is the respondent’s position that such broadening of the

statutory regulations was not intended by the Interstate Com-

merce Commission or by Congress. As federal law does not

create a cause of action for Petitioner, any available cause of

action is controlled by state law and does not justify review by

this Honorable Court.

3

REASONS FOR DENYING THE WRIT

I. No Conflict Exists Between The United States Courts

of Appeal Involving Interpretation of 49 U.S.C. §§

10927 (a) (1) and 11107(4).

Petitioner asserts that a “conflict’’ exists between the United

States Courts of Appeal for the Fourth, Fifth, and Eleventh Cir-

cuits involving the interpretation of 49 U.S.C. §§ 10927 (a) (1)

and 11107 (4) and the statutes’ implementing regulation. The

asserted ‘‘conflict’”’ is artificially created by Petitioner’s misin-

terpretation of the cases and misguided reliance on dictum

within those cases. The alleged ‘‘conflict’’ does not constitute

a genuine conflict among circuits so as to justify this Court’s

granting of certiorari.

The Eleventh Circuit’s underlying holding in this case is that

the aforecited federal statutes do not create a cause of action

for Stroh because he was a statutory employee of Midwestern,

and therefore was not within the protected “member of the

public” class. This is the key issue for the resolution of the

merits of this case; i.e., whether a ‘statutory employee’’ of a

lessee carrier is a “member of the public’’ entitled to protec-

tion under the federal statutes.

The Eleventh Circuit’s holding that the federal statutes in

question do not supply Stroh with a cause of action echoes the

precise holding of White v. Excalibur Insurance Co., 599 F.2d

50 (5th Cir.), cert. denied 444 U.S. 965, 100 S.Ct. 452, 62

L.Ed.2d 377 (1979). Pursuant to the case of Bonner v. City of

Prichard, 661 F.2d 1206 (llth Cir. 1981), White is binding

precedent in the Eleventh Circuit for the case at hand. The

Eleventh Circuit correctly analyzed, followed, and applied

White to the present case.

Petitioner argues that three cases conflict with White and

with the Eleventh Circuit’s holding in the present case. As the

following discussion shows, none of these cases create a genuine

conflict worthy of this Court’s review.

First, Petitioner argues that Riddle v. Trans-Cold Export,

Inc., 530 F.Supp. 186 (S.D. Ill. 1982), conflicts with the pres-

4

ent holding and therefore, that conflict exists between the

Eleventh and Seventh Circuits (although this issue has never

been heard by the Seventh Circuit Court of Appeals). The

Illinois district court in Riddle noted that the I.C.C. statutes

in question require a plaintiff to be a ‘““member of the general

public” before such an action can be brought against the lessee

for the lessor’s negligence. 530 F.Supp. at 189. The court,

citing and following the Fifth Circuit in White v. Excalibur

Ins. Co., supra, found that the plaintiff, a co-driver of a truck,

was not a member of the general public and granted the lessee

carrier's Motion for Summary Judgment.

Plainly, the Illinois district court — which Petitioner con-

tends represents the whole Seventh Circuit — followed White

and is in complete accord with the precise holding below. A

single footnote in Riddle shows a disagreement with White

concerning available state law remedies, but that point of dis-

agreement is not on the merits of the federal issue involved

herein. The true holding of Riddle completely supports the

present holding of the Eleventh Circuit and presents no con-

flict among the circuits.

Second, Petitioner argues ihat Bryant v. Refrigerated Trans-

port Co., 418 So.2d 281 (Fla. Dist. Ct. App. 1982) conflicts

with the present holding. Therefore, the Petitioner argues

there is a conflict among the courts within the Eleventh Cir-

cuit. This argument is completely meritless. In Bryant, a Flor-

ida state intermediate appellate court allowed an action by the

estate of a deceased truck driver to proceed against the lessee

carrier based on several unique factors. There was no employ-

ment contract, express or implied, between Bryant and the

lessee, and, most importantly, there existed an express contrac-

tual agreement between the lessor and the lessee that Bryant

was not an employee of the lessee. Based on these facts, the

Florida court found that Bryant was not an employee — statu-

tory or otherwise — of the lessee and was in effect a complete

stranger to the lessee. The fact situation in Bryant is clearly

distinguishable from the present case in which Midwestern had

exclusive control over the actions of Stroh and his co-driver.

5

Therefore, there is no merit to Petitioner’s argument that there

is a conflict among the courts in the Eleventh Circuit concern-

ing this issue. See, e.g., Garrett v. Superior Trucking Co., 162

Ga. App. 558, 290 S.E.2d 528 (1982).

Petitioner next argues that Proctor v. Colonial Refrigerated

Transportation, Inc., 494 F.2d 80 (4th Cir. 1974), conflicts

with the present holding by the Eleventh Circuit. At first

glance, it appears that a conflict does exist. However, a closer

study of Proctor and more recent cases reveals that there is no

conflict worthy of this Court’s review.

Proctor was decided in 1974, several years before the other

cases discussed herein which support the present holding.

Proctor held that a co-driver of a leased truck was a stranger to

the lessee carrier just as a member of the public and, conse-

quently, the lessee was responsible for the co-driver’s injuries.

However, in November of 1975, this Honorable Court in

effect altered that part of the Procior decision by holding that

a driver for the lessor was not a member of the public within

the protection of the Interstate Commerce Commission regula-

tory statutes. Transamerican Freight Lines, Inc. v. Brada

Miller Freight Systems, Inc., 423 U.S. 28, 39, 96 S.Ct. 229, 46

L.Ed.2d 169, 178 (1974) (‘‘[T]he lease did not affect this basic

responsibility of the lessee to the public; it affected only the

relationship between the lessee and the lessor.”’). While not

expressly overruling Proctor, it certainly altered the holding so

as to change its effect on the present case. Furthermore, Trans-

american did overrule Alford v. Major, 470 F.2d 132 (7th Cir.

1972) , which was a primary case relied on in the Proctor deci-

sion. See, Proctor, 494 F.2d at 92.

The effect of the Proctor decision was so altered by Trans-

american as to dissipate any conflict which may have existed.

The Fifth Circuit specifically rejected Proctor after Trans-

american and no Circuit Court of Appeals has ever followed

the Proctor rationale (See White, 599 F.2d at 55-56). On the

other hand, the White decision was completely followed by the

Fifth Circuit’s recent decision in Price v. Westmoreland, 727

F.2d 494 (5th Cir. 1984). This Honorable Court has denied

6

certiorari once on this issue, White, supra, and should do so

again in the present case.

II. Any Conflict Among the Circuits Concerns State

Substantive Law Questions and Does Not Justify

This Court’s Review.

Pursuant to the above argument, no right of action was cre-

ated for Stroh by the Interstate Commerce Commission regula-

tory statutes. Consequently, any remedy available to Stroh is

governed by state law schemes governing employees and their

right to worker’s compensation benefits. Each state may have

its own rule relating to whether a person classified as a ‘‘statu-

tory employee”’ is covered by that state’s worker’s compensation

laws without invoking this Court’s review. Most states have an

“exclusivity” provision in their worker’s compensation statutes

barring other tort actions and it is up to each of those states to

interpret their state statutes. The Proctor court interpreted

South Carolina’s worker’s compensation scheme to not bar a

common law negligence action by a statutory employee, while

the White court and the Eleventh Circuit court in the present

case interpreted different state statutes to bar a common law

negligence action for a statutory employee.

If a “conflict” indeed exists between the cases asserted by

Petitioner, it is a conflict among the applications of state sub-

stantive law worker’s compensation remedies. Such a conflict

does not justify this Court’s granting of certiorari. Ruhlin v.

New York Life Ins. Co., 304 U.S. 202, 206, 58 S.Ct. 860, 862,

82 L.Ed. 1290, 1292 (1983) (A difference in opinion as to state

law questions is not a reason for granting certiorari.) .

7

CONCLUSION

For these reasons, the petition for a writ of certiorari should

be denied.

Respectfully submitted,

A

L , ie A

|

¢

Address of Counsel:

HILL, HILL, CARTER,

FRANCO, COLE & BLACK

Post Office Box 116

Montgomery, Alabama 36195-2401

205/834-7600

unsel of Record

[cfs H. ANDERSON

8

CERTIFICATE OF SERVICE

I, James H. Anderson, a member of the Bar of the Supreme

Court of the United States and the Attorney for Midwestern

Distribution, Inc., do hereby certify that I have served a copy

of the foregoing upon all counsel of record in this cause by

placing same in the United States Mail, postage prepaid, this

the 2nd day of March, 1987, addressed as follows:

Allen W. Howell

P. O. Box 7367

Montgomery, Alabama 36107

oe

— -

ES H. ANDERSON

,