SHARON LOVELACE BLACKBURN, Senior District Judge.
Following the Entry of Default against defendants, Time Well Spent Express [TWS] and Willie James Crawford, II, (doc. 6),
Defendants' default is deemed their "admission of the facts cited in the Complaint, which [facts] by themselves may or may not be sufficient to establish a defendant's liability." Pennsylvania Nat. Mut. Cas. Ins. Co. v. Edmonds, Civil Action No. 09-0089-WS-B, 2010 WL 761332, *3 (S.D. Ala. Mar. 3, 2010)(internal quotations and citations omitted). "Stated differently, a default judgment cannot stand on a complaint that fails to state a claim." Id. (quoting Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997))(internal quotations omitted). "The law is quite clear that a plaintiff seeking a default judgment is confined to the specific factual allegations and demands delineated in the Complaint. A default judgment does not give the plaintiff a blank check to recover from the defaulting defendant any losses it had ever suffered from whatever source. Rather, recovery is limited to the kind and amounts of losses set forth in the pleadings." Id. at *6 (internal quotations and citations omitted).
Therefore, "a plaintiff seeking default judgment must show the Court what [his] damages are, how they are calculated, and where they come from." Patterson v. Walden, Civil Action No. 13-0109-WS-B, 2014 WL 852410, *4 (S.D. Ala. Mar. 5, 2014)(quoting PNCEF, LLC v. Hendricks Bldg. Supply LLC, 740 F.Supp.2d 1287, 1294 (S.D. Ala. 2010)). This court may not award damages without an evidentiary hearing or "demonstration by detailed affidavits establishing the necessary facts." Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543-44 (11th Cir. 1985)(quoting United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)). "Even in the default judgment context, `[a] court has an obligation to assure that there is a legitimate basis for any damage award it enters.'" Chartis Aerospace Ins. Services, Inc. v. AUA, Inc., No. 2:12-CV-1087-JHH, 2013 WL 2249095, *6 (N.D. Ala. May 21, 2013)(quoting Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003), other citations omitted).
In his Complaint, plaintiff, Grady L. Welch, alleges the following facts:
(Doc. 1 ¶¶ 6-20.) Crawford and TWS are deemed to have admitted these facts by virtue of their default. See Nishimatsu Const. Co., Ltd. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975),
Welch alleges claims of negligence, wantonness, and/or recklessness against Crawford and vicarious liability against TWS with regard to the motor vehicle accident. (Doc. 1 ¶¶ 22-25.) He also alleges negligent and/or wanton hiring, supervision, retention, and /or entrustment against TWS. (Id. ¶¶ 27-31.) Welch seeks compensatory damages, including pain and suffering, as well as punitive damages against defendants. (See doc. 17.) He filed a Summary of Damages, in which he claims the following:
(Id.) He filed evidence of medical treatment and worker's compensation payments following the accident, as well as the Affidavit of John W. McKinney, III, in support of his claim for lost future wages and earning capacity, the Affidavit of John Dory Curtis, M.D., a treating physician, and the decision of the Commissioner of Social Security, finding Welch disabled. (See generally docs. 14, 19-22, 24-3, and 24-4.) He also testified in open court. The court has reviewed all of the evidence submitted by Welch.
This court has jurisdiction over this case based on diversity of citizenship among the parties. See 28 U.S.C. § 1332(a)(1)("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States. . . ."). Plaintiff is a citizen of Alabama; defendants are alleged to be citizens of Georgia. (Doc. 1 ¶¶ 1-3.)
"[A] federal court in a diversity case is required to apply the laws, including principles of conflict of laws, of the state in which the federal court sits." Manuel v. Convergys Corp., 430 F.3d 1132, 1139 (11th Cir. 2005) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)); see Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)("Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state."). This court, sitting in Alabama, "must apply Alabama's choice-of-law rules." Dowdy v. Suzuki Motor Corp., 567 Fed. Appx. 890, 892 (11th Cir. 2014)(citing Manuel, 430 F.3d at 1139).
"The choice-of-law rule traditionally applied by Alabama in tort cases is lex loci delicti." Bryant v. Cruises, Inc., 6 F.Supp.2d 1314, 1317 (N.D. Ala. 1998). "Lex loci delicti has been the rule in Alabama for almost 100 years. Under this principle, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred." Etheredge v. Genie Indus., Inc., 632 So.2d 1324, 1325 (Ala. 1994)(quoting Fitts v. Minnesota Mining & Manufacturing Co., 581 So.2d 819, 820 (Ala. 1991)). The motor-vehicle accident that forms the basis of Welch's claims occurred in Alabama. (Doc. ¶¶ 6, 17.) Therefore, this court will apply Alabama law to determine whether the allegations in the Complaint support the causes of action Welch has alleged.
As set forth above, Welch alleges that Crawford struck the rear end of his tanker when he fell asleep while driving. In Alabama, "In order to establish a negligence claim, a plaintiff must prove: `(1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury.'" Miller v. Cleckler, 51 So.3d 379, 383 (Ala. Civ. App. 2010)(quoting S.B. v. Saint James Sch., 959 So.2d 72, 97 (Ala. 2006)(quoting Martin v. Arnold, 643 So.2d 564, 567 (Ala. 1994)). "[A] vehicle operator is under a duty to use reasonable care in operating the vehicle." Jones v. Baltazar, 658 So.2d 420, 421 (Ala. 1995). "Going to sleep while driving is evidence of negligence." Alexander ex rel. Estate of Alexander v. Annas, Civ. Action No. 06-0106-CB-B, 2007 WL 625905, *2 (S.D. Ala. Feb. 26, 2007)(citing Whiddon v. Malone, 220 Ala. 220, 124 So. 516 (1929)).
The court finds the allegations of Welch's Complaint adequately state a cause of action against Crawford for negligence.
As set forth above, Welch alleges the cause of the accident was Crawford's falling asleep while driving.
Lankford, 283 Ala. at 26-27, 214 So. 2d at 303 (quoting 28 A.L.R.2d 72).
Roszell v. Martin, 591 So.2d 511, 513 (Ala. Civ. App. 1991).
Welch's Complaint contains no allegations that Crawford continued to drive after he became aware he was sleepy, tired, or fatigued. Therefore, the court finds that the Complaint does not allege a cause of action based on wanton and/or reckless conduct.
"Under [the] doctrine [of respondeat superior], a master shall be civilly liable for the tortious acts of his servant." Ware v. Timmons, 954 So.2d 545, 549 (Ala. 2006)(quoting Philadelphia & Reading R.R. v. Derby, 55 U.S. (14 How.) 468, 486 (1852))(internal quotations omitted). "The vicarious liability of a putative master under the rule of respondeat superior depends upon the liability of the putative servant." Wheeler v. George, 39 So.3d 1061, 1090 (Ala. 2009)(quoting Hollis v. City of Brighton, 885 So.2d 135, 141-42 (Ala. 2004)(citing Larry Terry Contractors, Inc. v. Bogle, 404 So.2d 613, 614 (Ala.1981))).
Because the court finds that Welch's Complaint does not allege a wantonness claim against Crawford, such a claim asserted against TWS as Crawford's employer is due to be dismissed. The court finds the facts alleged in the Complaint are sufficient to support Welch's claim against TWS based on Crawford's negligence while driving as the agent or employee of TWS.
In addition to alleging that Crawford negligently caused the accident at issue when he fell asleep while driving, Welch alleges (1) TWS "negligently and/or wantonly hired, trained, supervised, and/or retained Defendant Crawford as a driver, employee, agent, servant, representative, and/or affiliate, and negligently and/or wantonly hired, trained, supervised, and/or retained the services of Defendant Crawford as operator of Defendant TWS Express' vehicle involved in the subject collision," (2) it "negligently and/or wantonly entrusted Defendant Crawford with the use of a tractor and semi-trailer," and (3) it "knew or should have known of the incompetency and/or unfitness of Defendant Crawford with regard to operation of the subject TWS Express tractor and semi-trailer." (Doc. 1 ¶¶ 27-29.)
Wright v. McKenzie, 647 F.Supp.2d 1293, 1297 (M.D. Ala. 2009). In order to properly allege a cause of action for negligent or wanton failure to train, supervise, retain, hire, and/or negligent or wanton entrustment, Welch must allege that Crawford caused his injuries because he was incompetent and that TWS knew or should have known of Crawford's incompetency. Southland Bank, 21 So. 3d at 1215. "A mistake or single act of negligence on the part of an employee does not establish incompetency: `Negligence is not synonymous with incompetency. The most competent may be negligent. But one who is habitually negligent may on that account be incompetent.'" Id. at 1216 (quoting Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 941 (Ala. 2006))(emphasis in original; internal citations omitted). "Under Alabama law, the heart of the competency issue is whether the Plaintiff's evidence bears on [the employee/defendant's] `ability (or inability) to properly drive a vehicle.'" Wright, 647 F. Supp. 2d at 1299 (quoting Halford v. Alamo Rent-A-Car, 921 So.2d 409, 413-14 (Ala. 2005)).
In this case, Welch has alleged no facts to indicate that Crawford was incompetent to drive and that TWS knew or should have known about the incompetency before the motor-vehicle accident that injured Welch. In this case, Welch has not alleged that Crawford had a history of accidents or that Crawford was otherwise incompetent to drive. The instant accident — which occurred
The court finds that the Complaint does not allege a cause of action for negligent or wanton hiring, training, supervision, retention, and entrustment. Therefore, these claims against TWS will be dismissed.
Pursuant to Alabama law, "Punitive damages may not be awarded in any civil action, except civil actions for wrongful death . . ., other than in a tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff." Ala. Code. § 6-11-20(a). Because the court finds Welch's wantonness claims are due to be dismissed, it necessarily finds no basis for awarding punitive damages.
Welch claims the following damages:
(Doc. 17 [footnote added].) The record contains sufficient evidence to establish (1) Welch received medical treatment and wages at the expense of his employer's workers' compensation carrier, his insurer, and medical-services providers, and (2) these entities have asserted subrogation liens against Welch, (see docs. 14-1 to 14-4), although none of these entities have sought to intervene in the instant action. The court has reviewed the evidence submitted by Welch and finds this evidence sufficient to establish that these amounts were paid as a result of the accident made the basis of this lawsuit and, therefore, are a proper measure of compensatory damages. See Edwards v. Allied Home Mortgage Capital Corp., 962 So.2d 194, 206 (Ala. 2007)("Compensatory damages are intended to reimburse a claimant only for the loss suffered by reason of its injury.")(citing Torsch v. McLeod, 665 So.2d 934, 940 (Ala.1995)).
Therefore, the court awards Welch
Welch submitted the affidavit of John Dory Curtis, M.D. to support his claim for damages. Dr. Curtis testified, "I am also a treating physician of Grady L. Welch, who is and has been a patient of mine. I have examined, diagnosed, and treated Welch multiple times since January 12, 2012[,] for signs, symptoms, and injuries that manifested themselves in Welch after he was involved in a work-related motor vehicle accident on or about January 12, 2012." (Doc. 19-1 ¶ 2.) According to medical records submitted by Welch, Dr. Curtis saw him on two occasions, July 26, 2013, and August 23, 2013. (Doc. 24-3 at 3, 12, 15, 42.) In his Affidavit, Dr. Curtis opined:
(Doc. 19-1 ¶¶ 6-7 [footnote added].) The court finds this testimony to lack the detail necessary to persuasively establish the extent of Welch's injuries suffered as a result of the motor-vehicle accident. However, the court finds Dr. Curtis's treatment note from August 23, 2013, one of only two office visits, supports an inference that Dr. Curtis did not fully credit Welch's complaints of pain. Dr. Curtis noted:
(Doc. 24-3 at 70.)
Dr. Curtis's finding that Welch's complaints of pain were not supported by medical findings on examination is echoed in other medical evaluations. On February 20, 2012, Roger T. Boyington, D.O., noted, "Decreased grip strength right upper extremity[;] however[,] I am suspicious of malingering due to observed effort and patient being [right] hand dominant. When asked if he could squeeze harder he said no but actually did squeeze some harder." (Doc. 14-10 at 4.) A couple of weeks later, Welch was examined by Fleming Brooks, M.D., who noted, "It is very difficult to examine [Welch]. He cries out in pain anytime his neck is moved. He has pain to light touch and pain to tapping on top of the shoulders and when I tap him on top of the head lightly he cries out in pain." (Id. at 22.) He found Welch had "multiple positive Waddell's signs,"
(Doc. 14-11 at 3.)
To the extent Welch continues to experience back and neck pain, the court finds this pain is not caused by injuries he suffered as a result of the motor-vehicle accident made the basis of this lawsuit. Although the court accepts Welch's testimony that he suffered some pain in the weeks immediately following the accident, the court rejects his testimony that his continuing pain, allegedly experienced months and years after the accident, was "caused" by injuries he suffered in the accident. See Sessions Co. v. Turner, 493 So.2d 1387, 1390 (Ala. 1986)("The general rule is that compensatory damages are intended only to reimburse one for the loss suffered by reason of an injury to person or property." (citing Youngblood v. Bailey, 459 So.2d 855 (Ala.1984); Matheny v. Petersen, 276 Ala. 478, 163 So.2d 635 (1964))).
Welch appeared before the court and testified as to his pain and suffering. The court finds Welch's testimony not entirely credible to the extent he testified that his continuing pain was caused by injuries suffered in the motor-vehicle accident. Although the court finds that, as a result of the motor vehicle accident made the basis of his complaint Welch suffered some pain, it will not award any damages for future pain. The court will award Welch
Welch claims "lost wages and earning capacity in an amount ranging from $468,700 to $688,000." (Doc. 17.) The court declines to award any amount for future lost wages, diminished earning capacity, and/or future medical expenses as the court finds that this type of damages is not established by the evidence. Although plaintiff presented evidence that his continuing pain limits his ability to work, the court finds insufficient evidence to convince it that his continuing pain was caused by injuries suffered in the motor-vehicle accident.
Based on the lack of objective evidence of a permanent injury caused by the accident and evidence of symptom magnification and/or a psychological component to Welch's continuing complaints of pain, the court finds that Welch's failure to return to work and his diminished capacity are not the result of injuries he sustained in the motor-vehicle accident. Therefore, the court declines to award any damages for future wages and/or diminished earning capacity.
For the foregoing reasons, the court is of the opinion that Welch is entitled to a default judgment on his negligence claim against Crawford and TWS in the amount of
There are eight Waddell signs:
Tennenhouse, 2 ATTORNEY'S MEDICAL DESKBOOK § 18:4. The signs are "caused by non-anatomical (functional) factors and implies that the back pain has no physical cause." Id. The presence of one or two Waddell signs indicates that the patient may be anxious or eager to cooperate. Id. "Three or more are usually considered sufficient to make a diagnosis of functional disorder or deliberate deception (malingering) and to rule out physical abnormality."
