FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      January 15, 2020

                                                                       Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                         Clerk of Court
                         _________________________________

 KATHERINE K. MORGAN, as wrongful
 death representative of the deceased
 person, David P. Morgan,

       Plaintiff - Appellant,

 v.                                                         No. 18-8076

 BAKER HUGHES INCORPORATED, a
 Delaware corporation,

       Defendant - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                          (D.C. No. 1:14-CV-00210-SWS)
                       _________________________________

Earl Landers Vickery, Vickery & Shepherd, LLP, Houston, Texas (Arnold Anderson
Vickery, Vickery & Shepherd, LLP, Houston, Texas; Frederick J. Harrison, Frederick J.
Harrison, PC, Cheyenne, Wyoming, on the briefs), for Plaintiff-Appellant.

Stephen P. Laitinen, Larson King, LLP, St. Paul, Minnesota (Stephenson D. Emery,
Williams, Porter, Day & Neville, PC, Casper, Wyoming; Mark A. Solheim, Larson King,
LLP, St. Paul, Minnesota, on the briefs), for Defendant-Appellee.
                        _________________________________

Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

LUCERO, Circuit Judge.
                    _________________________________
      Katherine Morgan, as wrongful death representative of her husband, David

Morgan, brought direct negligence liability claims against Baker Hughes

Incorporated (“Baker Hughes”) for the acts of its subsidiary, Baker Petrolite

Incorporated (“Baker Petrolite”). This appeal requires us to interpret Wyoming law

regarding the level of control necessary to hold a parent corporation liable in direct

negligence for the acts of its subsidiary. We conclude that Wyoming law on this

issue is consistent with the Restatement (Second) of Torts § 414 and its commentary.

Accordingly, we hold that the district court correctly instructed the jury with respect

to the relevant legal standard and did not err in making various decisions Morgan

challenges on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      On August 16, 2012, David Morgan was crushed to death by a heavy chemical

tote while operating a forklift at his place of employment, a warehouse in Casper,

Wyoming. The warehouse was owned by Baker Petrolite, a subsidiary of Baker

Hughes. Following the fatal accident, David Morgan’s widow, Katherine Morgan,

sued Baker Hughes, claiming that its negligent control of safety operations at the

Casper warehouse caused her husband’s death.

      There have been two trials in this case. At the close of Morgan’s evidence in

the first trial, Baker Hughes moved for judgment as a matter of law. The district

court granted Baker Hughes’ motion. We reversed on appeal, holding that Morgan

had presented sufficient evidence for a reasonable jury to conclude that Baker



                                           2
Hughes was liable for David Morgan’s death. Morgan v. Baker Hughes Inc., 728 F.

App’x 850, 854, 858 (10th Cir. 2018) (unpublished) (“Morgan I”).

       In so doing, we interpreted Wyoming law on the liability of parent

corporations for the acts of their subsidiaries. Under Wyoming law, “a parent

company can only be held liable for the acts of its subsidiary where it assumed some

independent legal duty by retaining or exercising control over some aspect of the

operation of a subsidiary corporation which was involved in the incident resulting in

the plaintiff’s injuries.” 

We cited Loredo v. Solvay America, Inc., 

(Wyo. 2009), as setting forth the requisite level of control. Morgan I, 728

F. App’x at 854. In Loredo, the Wyoming Supreme Court held that for a parent to

escape liability for the acts of its subsidiary, the subsidiary must be “entirely free to

do the work its own 

. Applying this test, we phrased the

question presented in Morgan I as “whether the evidence presented at trial, viewed in

the light most favorable to plaintiff, is reasonably susceptible to the inference that

Baker Hughes controlled operations at the Casper warehouse ‘to such a degree that it

directed how’ forklift safety ‘should or should not be done.’” 728 F. App’x at 854

(quoting 

). Because we concluded that Morgan’s evidence

was sufficient to support such an inference, we reversed the district court’s judgment

and remanded for further proceedings. 

       The second trial ensued. This time, Morgan moved for judgment as a matter

of law. The district court denied the motion, and the jury returned a verdict in favor

of Baker Hughes. However, before submitting the case to the jury, the court rejected

                                            3
Morgan’s proposed jury instructions and overruled her objections to the court’s

instructions. Morgan timely appealed these decisions and moved to certify the

controlling question to the Wyoming Supreme Court.

                                            II

       “Wyoming has explicitly rejected any doctrine of respondeat superior resulting

in liability on the part of a parent corporation for acts of its subsidiary.” 

(quoting 

). “Instead, a parent company can only be held

liable for the acts of its subsidiary where it assumed some independent legal duty by

retaining or exercising control over some aspect of the operation of the subsidiary

corporation which was involved in the incident resulting in the plaintiff’s injuries.”

a subsidiary on safety matters is not enough. See Fiscus v. Atl.

Richfield, 

, 162-63 (Wyo. 1989). “General, generic,” and optional

guidelines are therefore insufficient to establish liability. 

.

In contrast, a parent corporation does not escape liability under this standard unless

the subsidiary is “entirely free to do the work its own way.” 

       Several issues presented in this appeal turn on the same inquiry. As Morgan

puts it, “[t]he disposition of this case depends on whether the test for direct

negligence is the same in the parent-subsidiary context as in the independent

contractor context” under Wyoming law. Morgan argues that Merit Energy Co. v.

Horr, 

(Wyo. 2016), provides the correct standard, taken from § 414 of

the Restatement (Second) of Torts. Baker Hughes argues that Loredo provides the



                                             4
correct standard. We conclude that both Horr and Loredo announce the same

requisite level of control, drawn from § 414.

                                            A

      As we recognized in Morgan I, the Wyoming Supreme Court has held the

“requirement that the parent assume some independent legal duty by retaining or

exercising control over some aspect of the operation of a subsidiary” is “[e]ssentially

. . . the same test that is involved in considering an owner’s liability to the employee

of a contractor.” 728 F. App’x at 854 n.1 (quoting 

).

Accordingly, independent contractor cases provide guidance in assessing the level of

control necessary for a parent corporation to be held liable for the acts of its

subsidiary.

      In Jones v. Chevron, U.S.A., Inc., 

(Wyo. 1986), an independent

contractor case, the Wyoming Supreme Court explained that § 414 provides “[t]he

link between control and owner liability.” 

Interpreting that section, the

court held that the owner of a work site owes a duty of reasonable care to the

employee of an independent contractor if the owner “[1] retains the right to direct the

manner of an independent contractor’s performance, or [2] assumes affirmative

duties with respect to safety.” 

The court recognized that under this

standard, “[a]n owner does not have to retain a great deal of control over the work to

be liable for an employee’s harm under § 414.” 

Merely retaining the

power to direct how work shall be done, or conversely forbidding that it be done in a

likely dangerous manner, is sufficient. 

n.3.

                                            5
      Twenty-three years later, the Wyoming Supreme Court decided Loredo, a

parent-subsidiary case. The court confirmed that it had long “adopted as the legal

standard for the liability of a parent corporation the requirement that the parent

assume some independent legal duty by retaining or exercising control over some

aspect of the operation of a subsidiary corporation which was involved in the incident

resulting in the plaintiff’s 

(quoting 

). It emphasized that this test is essentially the same as that articulated in Jones

because a parent corporation is analogous to the owner of a work site. 

623. Quoting comment (c) to § 414, the court stated that to be held liable in direct

negligence, the employer or work-site owner must “ret[ain] a right of supervision”

such that “the contractor is not entirely free to do the work his own way.” 

      After discussing these principles, the court announced the following test:

             The test in finding whether Solvay America assumed an
             affirmative duty is not whether it operated any control in the
             mine, but whether Solvay America controlled the aspect of
             the mining operation that was involved in the incident that
             resulted in Plaintiff’s injuries to such a degree that it
             directed how that aspect should or should not be done.

The court determined that the evidence adduced was insufficient to create

an inference of control by Solvay America; rather, it suggested that Solvay acted

merely in an “advisory role” over its subsidiary. 

      After Loredo, the Wyoming Supreme Court decided Horr, another independent

contractor 

. The plaintiff in that case had proceeded under both

respondeat superior and direct negligence theories of liability. 

                                            6
Accordingly, the Wyoming Supreme Court thoroughly examined Wyoming law

concerning the level of control necessary to sustain each form of liability. 

97. The court recognized that in Jones, it had adopted the Restatement (Second) of

Torts to hold, generally, that “the employer of an independent contractor is not liable

for physical harm caused to another by an act or omission of the contractor or his

servants.” 

(citing 

n.1). It recited two exceptions to

this general rule: (1) respondeat superior liability, and (2) direct negligence liability

under Ҥ 414 of the Restatement, which deals with the direct liability of an employer

in connection with the work to be done.” 

95. Regarding the latter, the

court observed that § 414 provides the familiar rule that an employer of an

independent contractor may be held directly liable for the independent contractor’s

negligence if the employer “control[s] any part of the work” negligently performed

by the independent contractor that caused physical harm to an employee. 

, 718 P.2d at 893-94).

       The court looked to comments (a) and (c) to § 414 as “helpful guidance” in

determining the requisite level of control. 

95. Comment (a) states that the

level of control necessary for direct negligence liability is less than that required for

respondeat superior liability, and it is enough that an employer “retain only the power

to direct the order in which the work shall be done, or to forbid its being done in a

manner likely to be dangerous to himself or others.” 

(Second) of Torts § 414, cmt. a). Comment (c) states that the level of control “must

be such a retention of a right of supervision that the contractor is not entirely free to

                                            7
do the work in his own way.” 

(Second) Torts § 414 cmt. c).

After citing these two comments, Jones, and Loredo, the court affirmed that

Wyoming’s test for direct negligence liability is “[b]ased upon § 414 and its

commentary.” 

      Turning to the exception based on respondeat superior liability, the Horr court

characterized it as fundamentally premised on the “right to control the means and

manner of work.” 

(quotation omitted). Under this exception, “the

employer is strictly liable for the negligence of the supposed independent contractor,

who turns out to be a servant employee due to the greater degree of control

exercised.” 

Although “[t]he right to control is a requirement of the

master-servant relationship,” its absence “is a prerequisite of an independent

contractor relationship.” 

Applying these observations, the court rejected

the employer’s challenge to the trial court’s jury instructions, concluding that the

instructions “parallel[ed]” § 414 and the court’s precedent and were therefore not

erroneous. 

                                           B

      In light of the foregoing, we agree with Morgan that the correct test under

Wyoming law for direct negligence in either the parent-subsidiary or independent

contractor context is based on § 414 and its commentary. The Wyoming Supreme

Court has emphasized for thirty years that the two tests applied in each context are

“[e]ssentially . . . the same.” 

(citing Jones, 

);

see 

(quoting 

); 

                                           8
(citing Jones and Loredo for the same test).1 It has explicitly “analogized” parent

corporations to the work-site owners in independent contractor cases. 

. Wyoming parent-subsidiary cases cite Wyoming independent contractor

cases, and vice versa, in applying the same test. See 

(citing

Jones, 

); 

(citing 

, 626).

And most recently in Horr, the Wyoming Supreme Court cited both an independent

contractor case (Jones) and a parent-subsidiary case (Loredo) for the rule that the

requisite level of control necessary to establish direct negligence liability is “[b]ased

upon § 414 and its 

(citing 

;

, 626). The court has therefore given every indication that it

applies the same test and same level-of-control analysis in both its independent

contractor and parent-subsidiary lines of cases. We are aware of no indication to the

contrary, and Baker Hughes identifies none.

      We disagree, however, with Morgan’s insistence that Horr and Loredo are

irreconcilable and that Horr, not Loredo, controls this case. Morgan argues that

Loredo is incorrectly decided because it applies two inconsistent levels of control.

At one point, the court states that the relevant standard is “whether [the parent]

controlled the aspect of the mining operation that was involved in the incident that

resulted in Plaintiff’s injuries to such a degree that it directed how that aspect should


      1
        The two tests appear to be “essentially”—not “exactly”—the same only
insofar as Wyoming has rejected respondeat superior liability on the part of parent
corporations for the acts of their subsidiaries. See 

.

                                            9
or should not be 

(emphasis added). Elsewhere, the court

cites language from comment (c) to § 414 as the relevant standard: “there must be

such a retention of a right of supervision that the [subsidiary] is not entirely free to

do the work in its own way.” 

(quotation omitted, emphasis added).

Because Morgan maintains that the correct standard is drawn from § 414 and its

commentary, she argues that the “not entirely free” language is valid, but the “should

or should not be done” language is not. This latter statement, according to Morgan,

comes from Jones and is not about the requisite level of control for liability, but

rather the manner of control.

       As discussed above, we agree with Morgan that the correct level-of-control

test is stated in Horr and is based on § 414 and its commentary. But we do not agree

that Loredo’s “should or should not be done” standard is inconsistent with § 414’s

test. In Loredo, the court cites two cases for the “should or should not be done”

language. 

(citing 

; Wayts v. Peter Kiewit

Sons, Inc., 

(10th Cir. 1991), 

(unpublished table

decision)). And our decision in Wayts cites Fiscus for this language. 

, at *1. Although that language does not appear in Fiscus, Wayts also

includes a “see also” citation to Jones in support of the “should or should not be

done” standard. 

with Morgan that Jones comes closest to using this

phrase. As the Wyoming Supreme Court explained in Jones:

              [C]omment (a) to § 414 indicates that the owner can be
              liable even if he gives up enough control to make the


                                            10
              contractor an “independent contractor” under vicarious
              liability analysis.

              “. . . . If the employer reserves and exercises only the right
              to inspect the construction work to see that the contract
              specifications are met while the independent contractor
              controls how and when the work is to be done, there is
              probably not sufficient retained control to subject it to
              liability. . . .

              On the other hand, if the employer retains the right to direct
              the manner of the independent contractor’s performance, or
              assumes affirmative duties with respect to safety, the
              employer has retained sufficient control to be held liable if
              he exercises that control 

(quotation and footnote omitted). This language reflects the

Wyoming Supreme Court’s interpretation of the appropriate direct negligence

liability standard under § 414 comment (a). We interpret Loredo to base the “should

or should not be done” standard on this language. Thus, contrary to Morgan’s

arguments, we conclude that the “should or should not be done” standard springs

from § 414.

      In sum, Loredo’s “should or should not be done” language reflects the

Wyoming Supreme Court’s interpretation of comment (a) in Jones, and its “not

entirely free” language is drawn directly from comment (c). We therefore conclude

that Loredo applies the same level-of-control analysis applied in Horr.

                                           III

                                            A

      As a threshold matter, Morgan seeks to certify the level-of-control question to

the Wyoming Supreme Court. We consider motions for certification de novo. Pino

                                           11
v. United States, 

, 1235 (10th Cir. 2007). The standards we apply in

determining whether to grant a motion for certification stem from both state and

federal law. 

Under Wyoming law, the Wyoming Supreme Court may

answer certified questions that involve “a question of law which may be

determinative of the cause then pending in the certifying court or agency and

concerning which it appears there is no controlling precedent in the decision of the

supreme court.” Wyo. R. App. P. 11.01. Under our own jurisprudence, we will not

certify every “arguably unsettled question of state law [that] comes across our

desks.” 

. If a “reasonably clear and principled course” is

available, we follow it ourselves. 

appropriate, however, if “the

question before us (1) may be determinative of the case at hand and (2) is sufficiently

novel that we feel uncomfortable attempting to decide it without further guidance.”

inquiry, we are mindful that the “judicial policy of a state should

be decided when possible by state, not federal, courts.” 

Bros. v.

Schein, 

, 391 (1974)).

      For the reasons explained above, we conclude that the Wyoming Supreme

Court has provided clear guidance on how to answer the level-of-control question

pending before us. This question is not novel; the Wyoming Supreme Court has

addressed the issue since the 1980s. See, e.g., 

. And it has

provided controlling precedent, most recently in Horr, explaining the correct standard

to be applied in addressing this question. Because the decisions of the Wyoming

Supreme Court chart a “reasonably clear and principled course” for us to follow,

                                          12
Armijo v. Ex Cam, Inc., 

, 407 (10th Cir. 1988), we deny Morgan’s

motion for certification.

                                            B

      Morgan also challenges the district court’s denial of her motion for judgment

as a matter of law (“JMOL”). We review the denial of a motion for JMOL de novo,

“sitting in the same position as the trial court.” Phillips v. Hillcrest Medical Center,

, 796 (10th Cir. 2001). “A party is entitled to JMOL only if the court

concludes that all of the evidence in the record reveals no legally sufficient

evidentiary basis for a claim under the controlling law.” ClearOne Commc’ns, Inc. v.

Bowers, 

, 771 (10th Cir. 2011) (quotation omitted). To challenge the

sufficiency of evidence on appeal, the challenging party must comply with the

requirements of Fed. R. Civ. P. 50. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,

, 399 (2006). Rule 50(a) provides procedural requirements for

challenging the sufficiency of evidence pre-verdict; Rule 50(b) provides procedural

requirements for renewing a sufficiency-of-the-evidence challenge post-verdict. 

      “[T]he precise subject matter of a party’s Rule 50(a) motion—namely, its

entitlement to [JMOL]—cannot be appealed unless that motion is renewed pursuant

to Rule 50(b).” 

The purpose of this rule is that “[d]etermination of

whether a new trial should be granted or judgment entered under Rule 50(b) calls for

the judgment in the first instance of the judge who saw and heard the witnesses and

has the feel of the case which no appellate printed transcript can impart.” Cone v. W.

                                           13
Va. Pulp & Paper Co., 

, 216 (1947). “[F]or this Court to entertain a

sufficiency-of-the-evidence challenge, [a party] must have properly presented such a

challenge to the district court first in a pre[-]verdict Rule 50(a) motion and then in a

renewed Rule 50(b) motion following the verdict.” Home Loan Inv. Co. v. St. Paul

Mercury Ins. Co., 

, 1266 (10th Cir. 2016).

       In her pre-verdict Rule 50(a) motion, Morgan sought JMOL “on the issue of

control and, thus, liability of the parent company,” Baker Hughes. Specifically, she

argued that Baker Hughes’ forklift safety guidelines were sufficient evidence that

Baker Petrolite “had no room to develop its own safety policy,” and thus under Horr,

she was entitled to judgment as a matter of law. She pursues the same argument in

this appeal. Because Morgan did not renew this sufficiency-of-the-evidence

challenge post-verdict, she has failed to preserve that issue for appeal. Cavanaugh v.

Woods Cross City, 

, 1250 n.1 (10th Cir. 2013). We therefore do not

address it.

                                            C

       Morgan also argues the district court erred by refusing to adopt her proposed

jury instructions on the direct negligence liability test. “We review a district court’s

decision to give a particular jury instruction for abuse of discretion, but we review de

novo legal objections to the jury instructions.” Lederman v. Frontier Fire Prot., Inc.,

, 1154 (10th Cir. 2012) (quotation omitted).

       The district court attempted to hew as closely as possible to our formulation of

the control inquiry in Morgan I. In relevant part, Jury Instruction No. 11 provides:

                                           14
             For a parent corporation to be liable in a negligence action
             by a subsidiary’s employee, the parent corporation must
             have assumed some independent legal duty by retaining or
             exercising control over some aspect of the operation of a
             subsidiary corporation which was involved in the incident
             resulting in the plaintiff’s injuries or damages. The
             retention or exercise of control over the particular aspect of
             the subsidiary’s operation must have been to such a degree
             that the parent corporation directed how that aspect should
             or should not be done, so that the subsidiary was not entirely
             free to do the work its own way.

The question ultimately put to the jury as Question No. 1 on the special verdict form

was:

             On August 16, 2012, did Baker Hughes Incorporated retain
             or exercise control over the operations at Baker Petrolite’s
             Casper, Wyoming warehouse to such a degree that it
             directed how forklift safety should or should not be done?

       These instructions track closely our formulation of the proper inquiry in

Morgan I. See 728 F. App’x at 854. In that case, we considered both parent-

subsidiary and independent contractor cases in determining the correct level-of-

control test under Wyoming law, although we drew on language from Loredo to

explicate the test. 

reasons explained in Part 

, the level-of-control

test announced by the Wyoming Supreme Court in Loredo is the same as the test

announced in Horr. In fashioning its jury instructions, the district court closely

adhered to our discussion in Morgan I, which accurately follows Loredo and applies

the same standard as Horr. The district court’s instructions therefore correctly state

Wyoming law.




                                           15
         Morgan’s main contention with the trial court’s instructions is that, in her

view, they instruct the jury on respondeat superior liability, not direct negligence

liability. Standing alone, Question No. 1 is poorly phrased because it makes “the

operations at Baker Petrolite’s . . . warehouse,” not “forklift safety,” the object of the

verb phrase. A more precise statement of the relevant legal question would be

whether Baker Hughes retained or exercised control over the forklift safety

operations at the warehouse that led to David Morgan’s death. But “[w]hen

reviewing a challenge to jury instructions, we consider the instructions as a whole

and presume the jury followed those instructions.” See United States v. Hatatley,

, 1405 (10th Cir. 1997). The district court’s inartful sentence

construction does not rise to the level of legal error because Instruction No. 11

correctly articulates the required level of control to find a parent corporation directly

liable in negligence for the acts of its subsidiary. See 

(explaining that jury instructions need not be “flawless”). Considered as a whole, the

district court’s instructions accurately state Wyoming law, and we presume the jury

followed the court’s instructions, including Instruction No. 11, in answering Question

No. 1.

         Finally, Morgan argues that the jury instructions were “slanted impermissibly

away from direct negligence” because they did not contain particular language from

comment (a) to § 414 of the Restatement, specifically: “An owner does not have to

retain a great deal of control over the work to be liable for an employee’s harm under

§ 414.” We do not agree that the omission of this phrase renders the jury instructions

                                             16
a misstatement of Wyoming law. The instructions include the relevant language

from Wyoming Supreme Court case law interpreting comments (a) and (c) indicating

the requisite level of control to hold a parent corporation liable in direct negligence

for the acts of its subsidiary. Although Morgan may be correct that § 414 reflects the

important consideration that the requisite level of control for liability is lower for

direct negligence than it is for respondeat superior, an explicit statement to that effect

is not critical to determining whether the requirements for direct negligence liability

itself are met.

       Accordingly, we hold that the district court correctly stated Wyoming law in

its jury instructions, and it did not abuse its discretion in crafting its own (correct)

formulation of the instructions rather than adopting Morgan’s proposed instructions.2

                                            IV


       For the foregoing reasons, the judgment of the district court is AFFIRMED.

Morgan’s motion for certification is DENIED.




       2
        Morgan also requests that in the event we reverse and remand this case, we
review the district court’s refusal to take judicial notice of a letter she sought to
submit into evidence at trial. Because we affirm the ruling of the district court, we
do not reach this question.

                                            17