ORDER REGARDING SAVAGE RULE

CHRISTINE M. ARGUELLO, United States District Judge.

This matter is before the Court on Plaintiff Franklyn Jenkins's Trial Brief (Doc. # 389), Defendant Immedia Inc.'s Brief Re: Savage Rule (Doc. # 397), and Immedia's Trial Brief (Doc # 399.) Throughout the course of this litigation, the parties have expended substantial resources, time, and effort addressing the issue of whether and how the Savage rule applies to this case. Both parties agree that Minnesota law governs Plaintiff's claims against Immedia. For the reasons set forth below, the Court holds that the Savage rule does not apply to Plaintiff's claims against Immedia.

I. BACKGROUND

The Court incorporates herein the factual and procedural background of this dispute, as described in detail in this Court's Order Granting Plaintiff's Motion for Reconsideration (Doc. # 268) and the Magistrate Judge's Recommendation (Doc. # 359), which were incorporated in the Court's May 31, 2019 Order Affirming and Adopting the April 25, 2019 Recommendation (Doc. # 378).

II. APPLICABLE LAW

A. THE SAVAGE RULE

In United States v. Savage Truck Line, Inc., 209 F.2d 442 (4th Cir. 1953), the Fourth Circuit held that a carrier, who had actual knowledge of the unsafe condition of the cargo, was the party with the last clear chance to avoid damage to the shipped cargo and, as such, was the principal offender and obligated to pay for the damage to the goods. Id. at 447. It is of import that the Savage court tethered its liability determination to doctrines of indemnity, absolute liability, principal or contributory fault, and last clear chance.1 It is also of import that the Savage court's decision was issued in the context of which party was liable for damage to the transported goods:2

209 F.2d at 444-47 (emphasis added).

The Savage court concluded that, because the carrier was aware, at the time he took charge of the load, that load was not properly fastened to the truck, the "carrier [would] [ ] be liable notwithstanding the negligence of the shipper." Id. at 445.

B. MINNESOTA LAW

The Minnesota Supreme Court has not addressed the issue of whether the Savage rule applies to personal injury claims or whether the Savage rule is compatible with Minnesota's comparative fault statutory scheme. "When no decision of a state's highest court has addressed an issue of that state's law, the federal court confronted with that issue `must predict how [the State's] highest court would rule.'" Stuart v. Colo. Interstate Gas. Co., 271 F.3d 1221, 1228 (10th Cir. 2001) (quoting FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000)); Walker v. Hartford Life and Accident Ins. Co., 831 F.3d 968, 973 (8th Cir. 2016); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 S.Ct. 1188 (1938).

Only three reported Minnesota Supreme Court decisions have cited to the Savage case. See Powers v. Siats, 244 Minn. 515, 70 N.W.2d 344 (1955); Hendrickson v. Minn. Power & Light Co., 258 Minn. 368, 104 N.W.2d 843 (1960), overruled on other grounds by Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362 (Minn. 1977); and Haney v. Int'l Harvester Co., 294 Minn. 375, 201 N.W.2d 140 (1972). The Court reviews each case in turn.

In Powers v. Siats, a company owner purchased 500 cases of eggs and directed carrier defendants to deliver the eggs from Minnesota to New Jersey. 70 N.W.2d at 347. The company owner and carrier defendants executed a bill of lading that mandated two conditions of delivery: "Refrigeration is Necessary to Protect this Shipment" and that "Eggs must deliver at destination with an internal temperature of 50 or less." Id. During transportation, carrier defendants checked the temperature of the eggs, discovered that the eggs were warmer than contractually required, and attempted to refrigerate and use ice to cool down the eggs. Id. at 347. Despite the carrier defendants' efforts, the eggs were delivered at a higher temperature than contractually required and the plaintiff owner rejected them. Id. The Minnesota Supreme Court rejected the carrier defendants' argument that language of the bill of lading absolved the carrier defendants of liability for their failure to deliver eggs at a contractually agreed upon temperature. Id. at 347, 350.

In that case, although the Powers decision was based primarily on the contract embodied in the bill of lading, the Court also addressed briefly the carrier defendants' argument that they were absolved of liability because the parties agreed that the carrier defendants were not negligent The Minnesota Supreme Court, however, relied on the Savage rule for the following proposition:

Id. (citing United States v. Savage Truck Line, Inc., 209 F.2d 442 (4th Cir. 1953)). The court concluded that the carrier defendants did not bring "themselves within any exception which absolves them from their common-law liability as insurers" because their "act of proceeding with the delivery of the eggs [a]fter acquiring knowledge of their excessively high temperature was at least a contributing cause of the rejection of the shipment by the consignee." Id. The Minnesota Supreme Court's analysis was limited to the damage of transported goods and payment therefor, issues not relevant to the instant case.

In Hendrickson v. Minn. Power & Light Co., plaintiff's decedent was hired by the third-party defendant to deenergize power lines owned by a power company to facilitate the moving of a house. 104 N.W.2d at 846. The plaintiff's decedent sued the power company and defendant employer for wrongful death of the decedent who was killed when the power lines did not deenergize. A jury verdict was returned against the power company, which sought contribution or indemnity from the third-party defendant employer. Id.

In the Minnesota Supreme Court's analysis as to whether the power company could seek indemnity from the third-party defendant employer, the court cited Savage for the proposition that "[i]n the modern view, principles of equity furnish a more satisfactory basis for indemnity." Id. at 847. The Hendrickson court relied on a portion of the Savage decision3 to develop what became known as Rule 4 in Minnesota's indemnity jurisprudence: "A joint tortfeasor may generally recover indemnity... [w]here the one seeking indemnity has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged." 104 N.W.2d at 848. As discussed in greater detail below, only seventeen years later, however, the Minnesota Supreme Court discarded Rule 4. See Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 367 n.10 (Minn. 1977). Therefore, the Court ascribes no weight to the Hendrickson opinion.

Finally, in Haney v. Int'l Harvester Co., a plaintiff employee was injured in a one-vehicle accident and sued the manufacturer of the vehicle for negligence in the manufacture, design, and assembly of the truck, as well as for breach of warranty and strict liability for a defect in the vehicle at the time of manufacture. 201 N.W.2d at 141. The manufacturer defendant filed a third-party complaint against the plaintiff's employer on the grounds of contribution or indemnification. Id. The plaintiff's employer filed a counterclaim against the manufacturer defendant for damages to the vehicle. Id. The trial court dismissed the manufacturer defendant's third-party complaint because any liability of plaintiff's employer was "exclusively under the provisions of the Workmen's Compensation Act." Id. The Minnesota Supreme Court reviewed whether "the third-party action against plaintiff's employer should have been dismissed." Id.

In analyzing the defendant manufacturer's contribution and indemnity claims, the court reiterated that the Hendrickson decision set forth the "exceptional and limited" situations in which a joint tortfeasor could recover indemnity from another tortfeasor. Id. at 142. Explaining that the defendant manufacturer's indemnification claim did not necessarily fit into one of those exceptions, the Haney court cited the Savage decision as an example of a case that suggests "indemnity is granted where there is a great disparity in the degree of fault of the parties" and that the court should "possibly reconsider granting indemnification where there is a great disparity in the degree of fault of the parties." 201 N.W.2d at 146 n.21 (citing Savage, 209 F.2d 442).4 Yet, the court expressly declined to adopt the rationale for which it cited the Savage decision. Id. ("However, this court has not relied upon such rationale, and the Minnesota cases are equally explicable by the more specific principles stated above.")

C. MINNESOTA'S COMPARATIVE FAULT STATUTORY SCHEME

In 1969, Minnesota adopted its comparative fault statutory scheme, which is codified at Minn. Stat. § 604.01. Subdivision 1 provides that:

Minn. Stat. Ann. § 604.01, subd. 1 (emphasis added).

Subdivision 2 provides the following definition of "fault:"

Minn. Stat. Ann. § 604.01, subd. 2 (emphases added).

Since the adoption of Minnesota's comparative fault system, Minnesota "has rejected or significantly limited other such absolute tort doctrines that increase `the likelihood of unfairness' and has opted for a comparative fault framework that `contemplates justice for all parties.'" Senogles v. Carlson, 902 N.W.2d 38, 48 (Minn. 2017) (quoting Toetschinger v. Ihnot, 312 Minn. 59, 250 N.W.2d 204, 208, 210 (1977)). Indeed, the Minnesota Supreme Court has substantially limited the doctrines of assumption of risk, last-clear-chance, and discovered peril. Id. (citing Olson v. Hansen, 299 Minn. 39, 216 N.W.2d 124, 127-28 (1974) (discussing the limits of the assumption of risk-doctrine); Koval v. Thompson, 272 Minn. 53, 136 N.W.2d 789, 792 (1965) (discussing limits of last-clear chance and discovered-peril doctrines)).

Describing Hendrickson's indemnity Rule 4 as "a blunt instrument for reallocating responsibility for damages" because "[i]t shifts the entire loss from one culpable wrongdoer to another," the Minnesota Supreme Court discarded the doctrine of indemnity because it was in contravention of Minnesota's comparative fault scheme. Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 367 (Minn. 1977). Id. Construing what the Minnesota Supreme Court characterized as "Rule 4" of the Hendrickson case, the court stated that Rule 4 "concerns parties seeking indemnity who are without personal fault, but who nevertheless seek to avoid responsibility for the injury they have caused." Id. at 366-67. The court described the indemnity rule as an "all or nothing" rule because courts "still must award indemnity on an all-or-nothing basis" even if the indemnified party is culpable in wrongful conduct that contributed to injury. Id. at 367.

In comparing Hendrickson's indemnity Rule 4 to "the related area of contributory negligence," the court observed that the Minnesota "legislature has abandoned the all-or-nothing approach of the common law by adopting a comparative negligence statute, Minn. Stat. § 604.01. Tortfeasors must now accept responsibility for damages commensurate with their own relative culpability." Id. (emphasis added). Because this doctrine of indemnity was an "equitable doctrine" as recognized in the Hendrickson decision, the Minnesota Supreme Court explained that it was "at liberty to ameliorate the rigid common-law rules in keeping with legislative philosophy without an express statutory mandate." Id. at 367.

The Tolbert court, thus, overruled Hendrickson's Rule 4. Id. In doing so, the Minnesota Supreme Court unequivocally rejected the rationale underlying the portion of the Savage decision regarding all-or-nothing doctrines like contribution, indemnity, and last clear chance. Id. at 367 n.10 (citing Hendrickson, 104 N.W.2d at 846). The court enunciated a new rule providing that "by limiting reallocation of loss between joint tortfeasors to contribution based upon relative fault, the more culpable tortfeasor will continue to bear a greater share of the loss, but at the same time his joint tortfeasor will not continue to escape all liability as in the past." Id. (emphasis added).

Recent Minnesota case law reflects that Minnesota courts continue to ensure that liability rules fall in line with Minnesota's comparative fault scheme. In its 2017 Senogles decision, the Minnesota Supreme Court rejected several of defendant's arguments that a "no-duty rule" should be recognized and applied to bar plaintiff's negligence claims. 902 N.W.2d at 48. The Senogles defendant was a landowner who argued that he did not owe a duty to a child entrant on his land when the child was injured by "dangers that are known or obvious." Id. at 47. Moreover, the defendant argued that the Minnesota Supreme Court should recognize a new rule that a "Minnesota landowner owes no duty of care to a child entrant if the child enters the land accompanied by a parent or guardian, no matter how foreseeable the harm." Senogles, 902 N.W.2d at 48.

The Minnesota Supreme Court rejected both arguments. First, the court reiterated Minnesota's longstanding law holding that "a possessor is liable to an invitee for harm caused by a known or obvious condition if the possessor should have `anticipate the harm despite such knowledge or obviousness.'" Id. (quoting Restatement (Second) of Torts § 343A); see also Gilmore v. Walgreen Co., 759 N.W.2d 433, 435 (Minn. Ct. 2009) (recognizing that commercial property possessor owed invitee duty to warn or to take other reasonable steps to protect invitee against known or obvious condition). Second, the court declined defendant's request and reasoned that such an all or nothing "blanket rule" would undermine both the Minnesota Supreme Court's foreseeability jurisprudence, as well as Minnesota's system of comparative fault. Id. (citing Minn. Stat. § 604.01, subd. 1).

Additionally, as recent as 2019, the Minnesota Supreme Court refused to extend an "all or nothing" rule of primary assumption of risk to the sport of recreational downhill skiing and snowboarding. Soderberg v. Anderson, 922 N.W.2d 200, 205 (Minn. 2019). The court explained that primary assumption of the risk5 "completely bars a plaintiff's claim because it negates the defendant's duty of care to the plaintiff[.]" Id. at 203. As a result, it is not part of the calculation of comparative fault and is severely circumscribed to "limited circumstances." Id. Because the doctrine can completely bar claims, the Minnesota Supreme Court was "loathe to extend the doctrine ... to yet another activity" and that recent Minnesota case law "reflects that reluctance." Id. at 205. The court observed that the "nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk[,]" including "modifying the defense [ ]to bring it in line with the doctrine of comparative contributory negligence.[ ]"6 Id. at 205-06 (collecting cases) (internal quotations omitted).

III. ANALYSIS

The Court holds that the Savagerule does not apply to the instant case. As a preliminary matter, the Minnesota Supreme Court has never cited the Savage-decision for the proposition that the Savage rule applies when the damage caused by either a shipper or carrier's negligence is the personal injury of the carrier, as opposed to damage to the transported goods. More importantly, however, the Savage rule was intertwined with doctrines of last clear chance, contributory negligence, and indemnity—all-or-nothing liability approaches that have been rejected by both the Minnesota Supreme Court and Minnesota's Legislature.

Immedia's reliance on Tierney v. Arrowhead Concrete Works, Inc., 791 N.W.2d 540 (Minn. Ct. App. 2010), for the proposition that "[c]ourts applying Minnesota law today all apply the Savage rule" is unavailing. The Tierney decision is wholly unrelated to whether the Savage rule applies; indeed, a citation to the Savage decision does not appear in the opinion. Similarly, Imedia's reliance on Jenkins v. Immedia, Inc., No. 62-cv-11-5524, 2012 WL 7874431, at *3 (Minn. D. Ct. Aug. 7, 2012) is unpersuasive. The Jenkins court is the court that stayed Plaintiff's Minnesota action pending resolution of the instant action and it provided no analysis as to why the Savage rule applied to Plaintiff's claims or was compatible with Minnesota's comparative fault statute.7 (Doc. # 319-1 at 72-73.) These cases, thus, do not persuade the Court that the Minnesota Supreme Court would apply the Savage rule to Plaintiff's claims against Immedia.8

Minnesota case law construing the comparative fault statute also evinces that the Savage rule should not apply to Plaintiff's claims because such an application would undermine Minnesota's comparative fault scheme. The purpose of Minnesota's comparative fault scheme was to replace harsh tort doctrines that increase "the likelihood of unfairness" with a system that "contemplates justice for all parties." Senogles, 902 N.W.2d at 48 (internal citations omitted). Since Minnesota's comparative fault statute became law, the trend in Minnesota case law reveals that Minnesota and its courts have abolished, substantially limited, or shown a reluctance to extend "blunt" doctrines that impose all-or-nothing liability rules. Senogles, 902 N.W.2d at 48 (collecting cases); Tolbert, 255 N.W.2d at 367; Soderberg, 922 N.W.2d at 205-06.

Additionally, the Minnesota Legislature expressly abolished some of these doctrines (last clear chance) and subsumed others into the comparative fault equation (unreasonable assumption of the risk). Minn. Stat. § 604.01, subd. 1a. The Minnesota Supreme Court has respected the Minnesota Legislature's decision to abandon these all-or-nothing approaches and construed the comparative fault statute to prevent tortfeasors from continuing to "escape all liability as in the past" and to ensure that they are held responsible "for damages commensurate with their own relative culpability." Tolbert, 255 N.W.2d at 366-67.

In the instant case, Immedia seeks to use the Savage rule to bar Plaintiff's claims "in whole or in part." (Doc. # 373 at 30.) As discussed above, Immedia contends that the Savage rule applies to all of the misconduct alleged by Plaintiff. (Doc. # 397 at 3-4; Doc. # 399 at 6-7.) As such, Immedia is not merely requesting that the Court apply the Savage rule to apportion duties. To the contrary, Immedia's requests this Court to apportion all-or-nothing liability based on Plaintiff's alleged duties under the Savage rule. See 209 F.2d at 446-47. Immedia avers that, if Plaintiff's injuries were caused by an obvious defect in Immedia's loading, packing, or securement of the cargo, then regardless of Immedia's other forms of misconduct, Immedia's liability is absolved by the Savage rule.9 This is consistent with Immedia's previous argument that "Savage and the federal regulations apply here and require the conclusion that only Plaintiff bore the duty to prevent this accident" and that the Savage doctrine "precludes liability on the part of Immedia." (Doc. # 319 at 7 (emphasis added).)

Put differently, similar to the Soderberg landowner's argument, Immedia argues that Plaintiff's claims are completely barred because the Savage rule negates Immedia's duty of care to Plaintiff. But the Minnesota Supreme Court has already rejected the functional equivalent of Immedia's contention by refusing to extend the all-or-nothing liability doctrine of primary assumption of the risk and declining to recognize a new "no-duty" rule. Soderberg, 922 N.W.2d at 205. Immedia's requested application of the Savage rule would constitute an all-or-nothing liability rule between a shipper and carrier regardless of the negligence or fault of the shipper. (Doc. # 397 at 3.)

That application does not comport with the purpose of Minnesota's comparative fault framework" that "contemplates justice for all parties." Senogles, 902 N.W.2d at 48 (internal quotations omitted). Indeed, the Savage rule is not compatible with Minnesota's comparative fault scheme by which it abolished the doctrine of last clear chance—the same doctrine that the Savage court relied upon in applying the Savage rule to conclude that the carrier was principally at fault, thereby absolving the shipper according to equitable principles of indemnity and contribution. Recent Minnesota case law emanates an understanding that all-or-nothing rules—serving as complete bars to liability for those who have responsibility—should be brought in line with comparative negligence. Soderberg, 922 N.W.2d at 205-06. The Savage rule, which has the inevitable effect of imposing all-or-nothing liability on carriers, must succumb to Minnesota's comparative fault framework so that the jury can have the opportunity to properly apportion a percentage of fault to Immedia for its alleged negligence if it so chooses.

III. CONCLUSION

For the foregoing reasons, this Court concludes that the Minnesota Supreme Court would not apply the Savage rule to the instant case. Thus, it is ORDERED that the Savage rule will not apply in this case.