Forbes v. BB&S Acquisition Corp. ( 2021 )

United States Court of Appeals
For the First Circuit
No. 21-1257
THOMAS FORBES, as he is the Personal Representative of the
Estate of GEORGE J. FORBES,
Plaintiff, Appellant,
v.
BB&S ACQUISITION CORP.,
Defendant, Appellee,
B & C TIMBERS LLC; GREGORY TRUCKING COMPANY, INC.; WILEY LENUE
HOOKS; BSG LEASING, INC.; MAC COMPANY, INC.; GREGORY LEASING
COMPANY, INC.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Dino M. Tangredi for appellant.
John B. Stewart, with whom Thomas P. Schuler, Law Offices of
Steven B. Stein, and Murphy & Manitsas, LLC were on brief, for
appellee.
December 28, 2021
LYNCH, Circuit Judge. After completing a lumber
delivery for his employer Gregory Trucking Co., Inc. ("Gregory
Trucking"), under contract with BB&S Acquisition Corp. ("BB&S"),
Wiley Hooks allegedly caused a fatal accident killing George
Forbes. Thomas Forbes ("Forbes"), the personal representative of
George Forbes's estate, sued in federal court alleging that BB&S's
negligence in selecting Gregory Trucking as an independent
contractor was the proximate cause of the accident.
Forbes appeals from entry of summary judgment in favor
of BB&S. The district court concluded that BB&S could not be
liable under Massachusetts common law for the actions of an
independent contractor that occurred after the completion of the
job. The court also concluded that BB&S was not the "statutory
employer" of Hooks. See 49 C.F.R. § 390.5.
We affirm.
I.
A.
On August 22, 2016, B & C Timbers LLC contracted with
Gregory Trucking to transport lumber from North Carolina to BB&S
in Rhode Island. BB&S is a company that buys lumber in its raw
form, treats it, and resells the pressure-treated lumber. Hooks
was the employee of Gregory Trucking who was assigned to the
transportation job, and the tractor-trailer truck he drove was
registered and leased to Gregory Trucking.
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On August 23, after Hooks delivered the lumber to BB&S
in Rhode Island, BB&S contracted with Gregory Trucking to transport
a separate load of its treated lumber from its Rhode Island
facility to L.P. Adams, a lumberyard in Dalton, Massachusetts.
The load was transported pursuant to a bill of lading, which
identified the quantity and weight of the lumber, and the
destination of the delivery at L.P. Adams in Dalton.
On August 24, sometime before 7:00 a.m., Gregory
Trucking, through its employee Hooks, delivered the lumber to L.P.
Adams in Dalton. After Hooks completed Gregory Trucking's
contractual obligation to BB&S, Gregory Trucking then directed him
to fulfill another company's transportation contract. That
contract for the different company (not BB&S) required Hooks to
pick up lumber from Eagle Logistics in Monson, Massachusetts, and
transport it to North Carolina. Forbes alleges that during this
trip to pick up lumber from Eagle Logistics in Monson, Hooks ran
a red light, hitting the pick-up truck driven by George Forbes.
George Forbes died two days later from injuries sustained in the
crash.
B.
On December 13, 2017, Forbes filed a federal lawsuit
under diversity jurisdiction in the District of Massachusetts. He
alleged under Massachusetts common law that BB&S had negligently
selected Gregory Trucking as an independent contractor to
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transport its lumber. He also alleged that BB&S was liable as the
true employer of Hooks because BB&S was the "statutory employer"
under 49 C.F.R. § 390.5.1On June 9, 2020, after briefing and oral argument, the
district court entered summary judgment for BB&S. It held that
Massachusetts courts have not adopted Restatement (Second) of
Torts § 411 and that it is not the role of a federal court sitting
in diversity to expand state law. The court independently held
that BB&S's duty of care necessarily ended with the delivery of
its lumber pursuant to its contract with Gregory Trucking. The
court also rejected Forbes's argument that BB&S was the "statutory
employer" of Hooks.
On March 17, 2021, the court denied Forbes's motion for
reconsideration. In the motion for reconsideration, Forbes raised
for the first time the argument that the court should certify to
the Massachusetts Supreme Judicial Court ("SJC") the question of
whether Massachusetts courts have adopted § 411.
Forbes timely appealed.
1 In the same complaint, Forbes also sued Gregory Trucking
and Hooks. Counsel for Forbes informed our court at oral argument
that Forbes had tried those claims before a jury in September 2021.
The jury returned a verdict in favor of Forbes against Gregory
Trucking and Hooks.
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II.
We review de novo a district court's grant of summary
judgment. See Foss v. Marvic Inc., 994 F.3d 57, 64-65 (1st Cir.
2021).
A.
Forbes's case is predicated on several assumptions, the
first of which is that Massachusetts courts will adopt Restatement
(Second) of Torts § 411. Section 411 provides:
An employer is subject to liability for
physical harm to third persons caused by his
failure to exercise reasonable care to employ
a competent and careful contractor
(a) to do work which will involve a risk of
physical harm unless it is skillfully and
carefully done, or
(b) to perform any duty which the employer
owes to third persons.
Forbes further assumes that Massachusetts courts would interpret
§ 411 to extend liability beyond the period of any contractual
relationship.
Under the Erie doctrine, see Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938), "we apply 'state substantive law' as that law
has been applied by the state's highest court," Torres-Ronda v.
Nationwide Mut. Ins. Co., 18 F.4th 80, 84 (1st Cir. 2021) (quoting
Philibotte v. Nisource Corp. Servs. Co., 793 F.3d 159, 165 (1st
Cir. 2015)). Where a state's highest court has not spoken
directly, federal courts are restrained. See Aronstein v. Mass.
Mut. Life Ins. Co., 15 F.4th 527, 534 (1st Cir. 2021). "The
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plaintiff, who made a deliberate choice to sue in federal court
rather than in a [Massachusetts] state court, is not in a position
to ask us to blaze a new trail that the [Massachusetts] courts
have not invited." Jones v. Secord, 684 F.3d 1, 11 (1st Cir.
2012).
Forbes concedes that the SJC has never explicitly
adopted § 411. As to § 411, he asks that we "anticipate how the
state court would proceed." Packgen v. BP Expl. & Prod., Inc.,
754 F.3d 61, 73 (1st Cir. 2014). We have no need to address or
resolve that § 411 question. That is because his argument fails
at the next step.
Forbes conceded at oral argument that he cites no case
law, from Massachusetts or any other jurisdiction, to support the
argument that BB&S could be held liable to Forbes for Hooks's
conduct after he had completed the job for which BB&S had
contracted Gregory Trucking to do. We see no basis in
Massachusetts law to predict that the SJC would impose common law
liability on BB&S based on these facts.
Massachusetts courts have held that under Massachusetts
common law, a duty assumed under contract is limited to the
obligations under that contract. See Anderson v. Fox Hill Vill.
Homeowners Corp., 676 N.E.2d 821, 823-24 (Mass. 1997); Parent v.
Stone & Webster Eng'g Corp., 556 N.E.2d 1009, 1012 (Mass. 1990).
Here, BB&S's contractual relationship with Gregory Trucking ended
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once Hooks delivered the lumber to L.P. Adams. The bill of lading
included no additional obligations extending beyond the
contracted-for delivery of lumber, and Hooks was free to proceed
to his next job upon delivery.
Further, the SJC has rejected a finding of proximate
cause in a case where a defendant no longer had control over the
party that caused harm to a plaintiff.2 See Kent v. Commonwealth,
771 N.E.2d 770, 777 (Mass. 2002) (holding that the Commonwealth's
decision to parole inmate did not proximately cause third party's
injuries because the parolee's actions occurred after the
Commonwealth had transferred control of the parolee to the federal
government).
State courts in other jurisdictions have rejected
Forbes's argument. In Brettman v. M&G Truck Brokerage, Inc., the
intermediate appellate court of Illinois, a jurisdiction which has
adopted § 411, considered a similar factual scenario and expressly
2 In Massachusetts, the SJC has stated:
As a practical matter, in deciding the
foreseeability question, it seems not
important whether one defines a duty as
limited to guarding against reasonably
foreseeable risks of harm or whether one
defines the necessary causal connection
between a breach of duty and some harm as one
in which the harm was a reasonably foreseeable
consequence of the breach of a duty.
Whittaker v. Saraceno, 635 N.E.2d 1185, 1187-88 (Mass. 1994).
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rejected Forbes's argument on proximate cause grounds, even
assuming arguendo that the defendants had breached a duty of care.
127 N.E.3d 880, 891-92 (Ill. App. Ct. 2019). In Brettman, a
producer and broker hired an independent contractor carrier to
transport a load of cucumbers; the tractor-trailer driver employed
by the carrier was involved in an accident shortly after delivering
the cucumbers. Id. at 883. The Illinois court held that any
alleged breach of duty by the producer and broker did not
proximately cause the plaintiff's injuries. Id. at 892-95. The
court held that "it was the worker, not the work, who went on,
posttermination, to injure a third party. Illinois does not have
a policy of making those who select independent contractors become
insurers for the independent, posttermination actions of those
contractors." Id. at 895 (emphasis in original). For the same
reasons, even assuming arguendo that BB&S breached a duty of care,
this breach was not a proximate cause of the accident because the
accident occurred after Gregory Trucking had completed the
contracted-for work.
BB&S cites to Valdez v. Yates Petroleum Corp., 155 P.3d
786, 790 (N.M. Ct. App. 2007), and Forbes attempts to distinguish
the case. In Valdez, the intermediate appellate court of New
Mexico expressly rejected the argument that Forbes makes here,
that the duty of care extends after the completion of a delivery
contract. 155 P.3d at 790. In Valdez, the defendant employer
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hired an independent contractor truck driver to deliver water to
its work site; after the last delivery of the day, the truck driver
was involved in a fatal accident. Id. at 788. The New Mexico
court held that, even assuming arguendo that § 411 was viable
substantive state law, the § 411(b) claim would fail because the
truck driver "was not performing any duty owed by Defendant at the
time of the accident. The undisputed material facts establish
that the fatal accident, underlying Plaintiff's claims, occurred
after [the truck driver] had completed his last water delivery of
the day . . . ." Id. at 790. So too here. The accident occurred
after Hooks had completed the delivery for BB&S and was driving to
his next pickup for a different company.
B.
Forbes separately argues that the district court erred
in holding that BB&S was not the "statutory employer" of Hooks
under the Federal Motor Carrier Safety Regulations ("FMCSR"). 49
C.F.R. § 390.5. Forbes argues that BB&S was a "motor carrier" as
defined by the FMCSR and thus the "statutory employer" of Hooks
and owed a duty to hire drivers that would operate vehicles in a
safe manner.
Forbes's argument fails because it is contrary to the
statutory definitions set forth in the FMCSR. The FMCSR provides
the following definitions:
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Employer means any person engaged in a
business affecting interstate commerce who
owns or leases a commercial motor vehicle in
connection with that business, or assigns
employees to operate it,
. . .
Motor carrier means a for-hire motor carrier
or a private motor carrier. The term includes
a motor carrier's agents, officers and
representatives as well as employees
responsible for hiring, supervising,
training, assigning, or dispatching of drivers
and employees concerned with the installation,
inspection, and maintenance of motor vehicle
equipment and/or accessories.
. . .
Shipper means a person who tenders property to
a motor carrier or driver of a commercial
motor vehicle for transportation in interstate
commerce, or who tenders hazardous materials
to a motor carrier or driver of a commercial
motor vehicle for transportation in interstate
or intrastate commerce.
49 C.F.R. § 390.5.
The district court correctly held that BB&S was the
"shipper," and Gregory Trucking was the "employer" and "motor
carrier."3 BB&S tendered lumber to Hooks for transportation and
delivery. During the delivery, Hooks was acting as a Gregory
Trucking employee. The truck used by Hooks was registered and
leased to Gregory Trucking; BB&S did not lease any equipment or
motor vehicles to Gregory Trucking or Hooks. BB&S did not have
any control over the delivery route or manner of delivery. As
3 Judge Barron would not address the issue of whether BB&S
is a statutory employer and so does not join this portion of the
opinion that concludes that BB&S is not.
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such, under the FMCSR, BB&S was the "shipper" and owed no duty
under the regulations. See Harris v. FedEx Nat'l LTL, Inc., 760
F.3d 780, 785 (8th Cir. 2014) ("[T]he FMCSR applies to motor
carriers, not to shippers who engage independent contractors to
transport goods.").
Even assuming dubitante that BB&S was the "statutory
employer" of Hooks, Forbes does not offer any authority to support
the argument that BB&S could be liable for conduct that, as here,
occurred after it no longer had control over Hooks. Any potential
employer-employee relationship between BB&S and Hooks terminated
upon delivery of the lumber to L.P. Adams. Massachusetts courts
have found that an employer cannot be liable for negligent hiring
of an employee whose actions occurred outside the scope of
employment. See Ledet v. Mills Van Lines, Inc., 150 N.E.3d 782,
787 (Mass. App. Ct. 2020) ("As a matter of law, [the employee]'s
criminal acts, committed while [the employee] was off duty and not
engaged in the work for which [the employer] employed him, against
a person with whom [the employer] held no commercial or other
relationship, was not a sufficiently foreseeable result of [the
employer]'s hiring of [the employee], or its decision to allow him
to drive a truck incident to the move to which he was assigned.").
III.
Affirmed.
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