Date: 08-09-2012
Case Style: Andres Gutierrez v. Virgil E. McMasters
Case Number: CJ-2011-950
Judge: Dane Kuehn
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney: S. Marc Walls, Oklahoma City, Oklahoma and Jon D. Starr, McGivern, Gilliard & Curthoys, Tulsa, Olahoma for Virgil E. McMaster, Jr., Joslin Wallace and Celerity Logistics, Inc.
Defendant's Attorney: Stephen Michael Coates and Albert Franco, Wilson, Cain & Acquaviva, Tulsa, Oklahoma for Andres Guiterrz
Patick Kernan, Kernan & Ledford, PLLC, Tulsa, Oklahoma and William P. Parker, William P. Parker, P.C., Oklahoma City, Oklahoma for Capps Rent A Car, Inc.
Description: 1. On or around October 21, 2010, Defendant McMaster was driving a 2007 Hino Truck Southbound on North Memorial Drive in Tulsa, Oklahoma.
2. On or about October 21, 2010, Plaintiff Andres Gutierrez was driving a 2001 Ford Truck Northbound on North Memorial Drive in Tulsa, Oklahoma
3. On said date, as Defendant McMaster approached the intersection of North Memorial Drive and East Pine Street, he attempted to turn left onto East Pine Street.
4. However, Plaintiff Andres Gutierrez negligently failed to stop for the traffic light at the intersection of North Memorial Drive and East Pine Street, and negligently failed to yield to Defendant MeMaster, causing a collision between the two vehicles.
5. As a result of said motor vehicle collision, Defendant Virgil McMaster sustained permanent and severe bodily injuries, permanent disfigurement, lost wages, mental pain and suffering and property damage.
CAUSES OF ACTION
I. Negligence
6. Paragraphs 1-5 are incorporated herein by reference.
7. Plaintiff Gutierrez owed a duty to Defendant McMaster, and all other drivers on the road, to operate his vehicle in a safe and reasonable maimer, using ordinary care to prevent injury to other persons and to keep a lookout consistent with the safety of other vehicles.
MOTION FOR SUMMARY JUDGMENT
Comes now Capps Rent-A-Car, Inc., dlb/a Capps Van & Car Rental, hereinafter t€ferred to as “Capps” and moves the court to grant summary judgment in its favor pursuant to12 O.S. 2056 and Rule 13 of the Rules for District Courts and in support of its motion would respèctffilly show as follows:
STATEMENT OF MATERIAL FACTS FOR WHICH NO GENUWE ISSUE EXISTS
1. Capps is engaged in business as, its name implies, the rental or leasing of motor vehicles owned by Capps, without driver, to persons desiring to rent or lease the Capp’s owned vehicle for the furtherance of the renter’s business.
2. On or about October 20, 2010, Capps rented a vehicle to Defendant Wallace Joslin d!b/a JIC Services, 7270 Brook Street, hereinafter referred to as “Joslin”.
3. Attached hereto as Exhibit “A” is an affidavit of Joslin which makes clear the fact
that under the arrangement’agreement, Capps had nothing to do with the selection of the driver in connection with the lease/rental and Joslin was to bear sole responsibility for selecting the driver for the vehicle.
4. On or about October 21, 2010, while under the direction and control of Joslin employee Virgil E. McMaster, Jr., the vehicle owned by Capps and rented to Joslin was involved in the vehicular accident from which Plaintiff asserts its claims against Defendants herein.
ARGUMENT AND AUTHORITIES
That Capps is not liable for any claim made herein by virtue of Capp’s ownership of the vehicle is mandated by the so called, “Graves Amendment” at 49 USCS 301 106(b)(2). This Federal statute preempts vicarious liability claims against rental companies of the type asserted in this proceeding against Capps. This statute provides, in pertinent part, that:
“an owner (Capps herein) of a motor vehicle that rents or leases the vehicle to a person shall not be liable under the law of any State by reason of being the owner of the vehicle for harm to persons or property that results or arises out Of the use, operation, or possession of the vehicle curing the period of the rental or lease, if (as is the case here) (1) the owner is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner.”
That the Graves Amendment is constitutional and binding upon the states was determined in the matter of Nilsa Rodriguez v. Mark Testa, et al. Case Number SC 18389, Connecticut Supreme Court, and attached hereto as Exhibit “B”.
The only allegation regarding Capps’ putative negligence herein is a claim that Capps negligently “entrusted” the vehicle to Virgil E. McMaster (McMaster) and that Capps somehow knew or could have known that McMaster was under the influence of an intoxicating substance or was not properly licensed to operate the involved vehicle. As the affidavit from Joslin makes clear, Capps had nothing to do with the selection of the driver for the rented vehicle. Driver selection was made by Joslin and Joslin alone and Capps did not know nor could Capps have known of the condition and qualification of the driver selected by Joslin to operate the vehicle.
Under these facts and circumstances, the “Graves amendment” is controlling and Capps is entitled to summary judgment in its favor.
Summary judgment may be granted when there is no substantial controversy as to any material fact. In other words, a party is entitled summary judgment when the pleadings, affidavits, depositions, admissions or other evidentiary materials show there is no substantial controversy as to any material fact and that one pasty is entitled to judgment as a matter of law. Rule 13(b) Rules of District Courts provides that:
“all material facts set forth in the statement of the of movant which are supported by acceptable evidentiary material shall be deemed admitted for the purpose of sunixnary judgment of summary disposition unless specifically controverted by the statement of the adverse party which is supported by acceptable evidentiary material.”
The only fact asserted by Plaintiff as grounds for recovery against Capps has been specifically controverted by Capps and there is no rebuttal to Capps’ position that Capps did not negligently entrust the vehicle to driver McMaster. Accordingly Capps in entitled summary judgment as a matter of law and Capps hereby seeks an Order to this effect.
8. By failing to operate his vehicle in such a way, and by acting recklessly with complete disregard for the health and well-being of Defendant McMaster and all other drivers on the road, Plaintiff Gutierrez breached the duty owed to Defendant McMaster.
9. These breaches were the actual and proximate cause of Defendant McMaster’s injuries.
10. As a result of Plaintiff Gutierrez’s negligence, Defendant McMaster has suffered personal injury, including medical expenses, mental and physical pain and suffering, physical disfigurement, loss of wages and other actual damages in excess of $75,000.00.
Outcome: Settled in part and dismissed in part as to Capps, Celerity, McMaster and Wallace.
Plaintiff's Experts:
Defendant's Experts:
Comments:
