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Tuong Vi Le v. Colonial Freight Systems, Inc.

Florida Court of Appeals, First District

December 4, 2019

TUONG VI LE, Appellant/Cross-Appellee,
COLONIAL FREIGHT SYSTEMS, INC., a foreign corporation, Rodriguez Family Express, a foreign corporation, Atanasio Rodriguez, Richard Llamas, T.A. Operating, LLC, a foreign corporation, John Doe, and Lily Nguyen, Appellees/Cross-Appellants.

         Rehearing Denied March 2, 2020.

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         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         On appeal from the Circuit Court for Columbia County. Wesley R. Douglas, Judge.

          Ben Murphey of Lawlor White & Murphey, LLP, Fort Lauderdale; Andrew A. Harris and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant/Cross-Appellee.

          Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg, for Appellee/Cross-Appellant Colonial Freight Systems, Inc.

          J.W. Taylor , Kristen M.J. Johnson , and Michael Roscoe of Taylor & Associates Attorneys at Law, P.L., Winter Haven, for Amicus Curiae American Trucking Associations, Inc., in support of Appellees/Cross-Appellants.

          Lawrence J. Roberts of Lawrence J. Roberts & Associates, P.A., Coral Gables, for Amicus Curiae National Association of Small Trucking Companies, in support of Appellee/Cross-Appellant Colonial Freight Systems, Inc.

         Lewis, J.

         Appellant, Tuong Vi Le, appeals the Second Amended Final Judgment in which the trial court ordered that she recover $115,541.12 from Appellee, Colonial Freight Systems, Inc. Appellant argues that the trial court erred in determining that Appellee did not have a nondelegable duty to ensure that its trailer was properly maintained and operated in a safe condition and in not ordering that Appellee pay her the total amount of damages as found by the jury in her negligence case. For the following reasons, we reject Appellant's arguments and affirm. We affirm as to the issues raised on cross-appeal without comment.


         In February 2012, Appellant filed a Complaint against Appellee wherein she alleged that on June 2, 2010, a tire from one of Appellee's trailers detached and collided with the vehicle in which she was a passenger. In her Second Amended Complaint, Appellant added several defendants, including TA Operating, LLC ("TA"), and alleged that TA negligently installed the wheels on the trailer prior to the accident. In 2016, Appellant dropped all defendants except for Appellee.

         Appellee subsequently moved for summary judgment, representing that TA performed repairs on the trailer at issue in May 2010 in South Carolina after a fire broke out at the right rear axle of the trailer. In her response, Appellant argued that Appellee "owed [her] a non-delegable duty to inspect, maintain, repair, and operate trailer #5427 in a safe condition under the common law and various trucking regulations." She further argued that Appellee knew or should have known that TA did not do a proper inspection and repair of the damaged parts of the trailer after the brake malfunction and fire. The trial court denied Appellee's motion.

         During trial, Appellee denied Appellant's negligence claim and argued that TA, among others, was negligent. One of the stipulated facts read to the jury was that a TA mechanic failed to properly inspect

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and repair the damages caused by the May 2010 fire, which resulted in damage to the trailer's right rear axle bearings.

         Thereafter, Appellant presented the deposition of Ray Floyd, Appellee's vice-president of maintenance. Floyd testified that Appellee had approximately 500 trailers and that he was responsible for taking care of "all of our company equipment." According to Floyd, Appellee "absolutely" worked with TA on a routine basis. It was "not necessarily" any of Appellee's employees' job to review the TA invoices "because the program that is set up with TA is any kind of repairs that need to be done they have authorization to do or to go to whatever extent they feel like is necessary to make that repair." Appellee paid TA approximately $300,000 per year to work on its equipment. With respect to the invoice for the TA repair work at issue, Floyd testified, "I don't think I reviewed this invoice ... until the second instance with the truck or with the trailer where the wheel came off. Then I went back and I reviewed it at that time." Floyd described the invoice as being "sketchy" and "kind of hard to understand," testifying, "It says took drum and hub oiler off to see if any damage was done to the hub and bearings. You can't inspect the bearings without pulling the hub." Floyd further testified that Appellee's inspector who conducted the periodic inspection on the trailer a couple of weeks after the repair was not told about the fire. He explained, "There was not anything to draw attention to this particular trailer because after the repair at TA, you see, I thought everything was good." Floyd later testified of TA, "The way the invoice reads, it looks like they did not do as much as they could have done."

         The deposition of Scott Simmons, Appellee's safety director in 2010, was later presented. When asked if anything could have been done to avoid the accident, he replied, "Well, I believe that if the bearings within the hub had been properly inspected and replaced, this incident wouldn't have happened." When asked whether he believed that an inspection as done by a driver, "done exactly the way he's supposed to do it," would have revealed the problems with the wheels prior to the incident involving Appellant, Simmons replied, "In order to inspect the parts that we're talking about here, they are inside of a hub. And the only way to inspect them is to completely take the hub apart, which we would never ask of our drivers on the road. They're not qualified or trained to do that type of work." When asked if he blamed TA for the incident at issue, he replied, "They had the primary opportunity, the technician did, to take this hub apart and thoroughly inspect it after a fire to ensure that there was no damage done to these bearings within the hub."

         After the parties rested their cases, Appellant moved for a directed verdict on the basis that "there is a non-delegable duty." The trial court denied the motion. Appellee's counsel argued during his closing argument that TA was "the one that should carry the brunt of the responsibility."

         In its verdict, the jury affirmatively answered the question of whether there was "negligence on the part of [Appellee] that was a legal cause of loss, injury or damage" to Appellant. The jury also found that TA's negligence was a legal cause of Appellant's loss, injury, or damage. The jury assigned twenty-three percent of fault to Appellee and seventy-seven percent of fault to TA. The jury determined that Appellant's damages totaled $521,984.39.

         In response to the verdict, Appellant filed a Motion for Judgment as a Matter of Law on Apportionment of Fault. Appellant asserted that the trial court "should now hold that [Appellee] is liable for the fault

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assigned to its retained independent contractor" based on the nondelegable duty of care owed to her by Appellee. Appellant also filed a Motion for Entry of Judgment against Appellee, asserting that the damages award should not ...

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