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Miller v. J.B. Hunt Transport, Inc.

Court of Appeals of Ohio, Tenth District

September 10, 2013

Jack Miller, Plaintiff-Appellant,
v.
J.B. Hunt Transport, Inc. et al., Defendants-Appellees.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 11CV-6472

Rosenberg & Ball Co., LPA, and Eric Rosenberg, for appellant.

Dinsmore & Shohl, LLP, and Jan E. Hensel, for appellees.

DECISION

T. BRYANT, J.

{¶ 1} Plaintiff-appellant, Jack Miller, appeals a summary judgment entered by the Franklin County Court of Common Pleas in favor of defendant-appellee, J.B. Hunt Transport, Inc. ("J.B. Hunt"), on appellant's claim of tortious interference with a business relationship.[1] Because we find that the trial court committed no reversible error in so holding, we affirm the judgment.

I. BACKGROUND

{¶ 2} J.B. Hunt is a multi-model containerized transport company serving the United States, Canada, and Mexico. As a commercial motor carrier, J.B. Hunt is regulated by the United States Department of Transportation. "In an effort to promote greater safety in the operation of large trucks on the Nation's highways, in 1970 the United States Department of Transportation promulgated the Federal Motor Carrier Safety Regulations ("FMCSR") establishing minimum qualifications for commercial motor vehicle drivers and requiring employers to investigate the driving record and employment history of prospective employees being hired to drive large trucks." See Cassara v. DAC Servs., Inc., 276 F.3d 1210, 1213 (10th Cir.2002), citing 49 C.F.R. 390.1-390.37, 391.1-391.69. These regulations, however, do not prohibit an employer "from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health." 49 C.F.R. 390.3(d). And, under the regulations, prospective motor carrier employers must investigate certain information of previous employers of driver applicants, including "minor accident information" provided "pursuant to the employer's internal policies." 49 C.F.R. 391.23(d)(2)(ii).

{¶ 3} The FMCSR require "previous motor carrier employers" to respond to requests for drivers' driving histories, including their safety performance. See Baumgartner v. AIM Leasing, 11th Dist. No. 2012-T-0070, 2013-Ohio-883, ¶ 28 ("Pursuant to 49 CFR 391.23, previous motor carrier employers must respond to requests from potential future employers by providing data related to a previous employee's accidents."). J.B. Hunt uses USIS, which is also known as "DAC" and "HireRight, " to comply with its duty to respond to inquiries regarding former employees' driving histories. (R. 36, exhibit No. 1, Griffin Affidavit, at ¶ 14, hereinafter "Griffin Affidavit, at ___.".) USIS specializes in investigation and security services and compiles and disseminates truck-driver employment histories. J.B. Hunt retains and reports information regarding all accidents in which its drivers are involved, including those that do not meet the regulatory definition of accident in 49 C.F.R. 390.5.

{¶ 4} It is J.B. Hunt's policy to investigate all collisions, no matter how minor, in which one of its drivers is involved to determine whether the accident is preventable or non-preventable. As part of its efforts to promote high standards of safety among professional drivers, J.B. Hunt investigates the preventability of all accidents and reports all preventable collisions, including its preventability determination, for inclusion on a Driver Work History Report sent to USIS.

{¶ 5} Upon receiving a report of a collision, J.B. Hunt makes an initial determination of preventability within 24 hours. This determination is made upon a review of all information available at the time, including the driver's initial statement and the statements of others involved. During this preliminary evaluation, if there is any doubt, the accident is deemed to be preventable. This practice is used to encourage the driver's manager to discuss the accident details with the driver and to review with the driver any supplemental information, including any police report. If the driver believes that the preventability determination should be changed from preventable to non-preventable, the driver must request that the manager submit a Safety Event Change Request, and the manager decides whether to submit the request.

{¶ 6} To make the preventability determination, the J.B. Hunt safety professional must review all available information, weigh it against relevant guidelines, and arrive at an adequately supported decision that will be accepted by the driver and can deter similar accidents by J.B. Hunt drivers in the future. According to J.B. Hunt Senior Claims Advisor David Dunn, preventability determinations are, by their nature, judgment calls. If there is a potential for litigation from the accident, J.B. Hunt will send an insurance claims adjuster to investigate the accident to determine who was at fault for the accident for liability purposes, but the investigation is different from the preventability determination.

{¶ 7} J.B. Hunt has issued guidelines for determining the preventability of accidents, which were derived from guidelines issued by the American Trucking Association. Under its guidelines, J.B. Hunt holds its drivers to a higher standard of performance than the average motorist, even requiring them to be alert to the actions of a driver who may not stop at a stop sign or red light at an upcoming intersection:

The concept of preventability is based on the premise that the professional driver is expected to meet a higher standard of performance than the average motorist. It is self-evident that the professional driver should be able to observe and assess the behavior of pedestrians and other drivers and recognize those actions which may create hazardous conditions and take every reasonable measure to avoid involvement in an accident.
For example, the professional driver must react appropriately to change in the flow of traffic and take prompt action to avoid an emergency situation. Even though on a through highway, the professional must be alert to the actions of a driver who may not stop at the stop sign or red light at an upcoming intersection.
The professional driver must take every reasonable measure to deal safely with the illegal or unsafe acts of other drivers and pedestrians.

(Griffin Affidavit, exhibit B.)

{¶ 8} J.B. Hunt's guidelines further provide that, to determine preventability, all available information should be reviewed including, but not limited to: (1) the driver's initial report of the accident; (2) the police report; (3) the report to the insurance carrier and the adjuster's report; and (4) the findings of the fleet's internal investigation. Under the guidelines, "[t]he decision that an accident is preventable should always be made in the light of recommendations for actions that the fleet driver could reasonably have been expected to take to avoid its occurrence, " and "[i]f such reasonable recommendations cannot be made in good faith, consideration should be given to making a determination that it was non-preventable giving the driver the benefit of the doubt." (Emphasis sic.) (Griffin Affidavit, exhibit B.)

{¶ 9} Appellant was employed by J.B. Hunt as a commercial tractor-trailer driver from December 2002 to December 2007 and from January 2008 to August 2010. While working for J.B. Hunt, appellant signed J.B. Hunt's "Dedicated Contract Services Preventable Collision Policy, " affirming that he read and understood it. (Griffin Affidavit, at ¶ 8.) The policy specified that "[a]ll collisions regardless of the damage or severity will be subject to a collision review" and that "[t]he outcome of the review will result in rating the collision as preventable or non-preventable; recommendations for training and/or disciplinary action." (Griffin Affidavit, exhibit A.)

{¶ 10} J.B. Hunt provided information on its drivers to USIS for inclusion on USIS work history reports for truck drivers. J.B. Hunt reports all preventable collisions, including its determination of preventability, for inclusion on the USIS report. Once this information is included on the USIS driver work history report, J.B. Hunt does not remove it. J.B. Hunt listed four preventable accidents on appellant's work history report: (1) a December 8, 2005 accident in Jackson Center, Ohio, in which appellant passed a car on a two-lane highway and purportedly side-swiped the car when merging back into the lane; (2) a February 15, 2008 accident in Pittsburgh, Pennsylvania, in which appellant hit a sign on a building in an alley opposite a loading dock as he attempted to make a delivery; (3) an August 28, 2009 accident in Columbus, Ohio, in which appellant forgot to unhook his air hose before trying to get a trailer out of the mud, resulting in the air hose disconnecting, striking, and cracking the rear window of the truck; and (4) a July 30, 2010 accident in Delaware, Ohio, in which appellant collided with a smaller truck while he was making a left-hand turn and the truck was approaching from the intersection from the right, resulting in the smaller truck bouncing off of appellant's truck and ending up in a nearby bean field. Of these four preventable accidents, J.B. Hunt received a Safety Event Change Report requesting a change in the designation from "preventable" to "non-preventable" for only the December 8, 2005 lane-change side-swipe. After all relevant information was reviewed, J.B. Hunt denied the request.

{¶ 11} For the intersection collision, appellant provided a statement in which he claimed that he had a green light for his left-hand turn, that he saw the smaller truck approaching the intersection about 300 yards away from the right before he made the turn, but he never checked his right side again, instead focusing his attention on the vehicles stopped to his left to assure that he had the room to make the turn onto the state route. J.B. Hunt determined that because appellant proceeded into the intersection without making sure that the smaller truck was stopping, he did not take every reasonable measure to avoid the accident, and it deemed the accident preventable. After this latest preventable accident, J.B. Hunt terminated appellant's employment because of that incident "and a history of negative observations, complaints, preventable incidents, and preventable collisions." (Griffin Affidavit, at ¶ 13.)

{¶ 12} Appellant first saw J.B. Hunt's USIS report on his driving history in September 2010 when his subsequent employer, Putnam Truckload Direct, presented it to him. After being fired by J.B. Hunt, appellant unsuccessfully applied for available truck driver positions with comparable compensation and benefits. As an independent truck driver, appellant has had to drive considerably more miles.

{¶ 13} On May 25, 2011, appellant, represented by counsel, filed a complaint in the Franklin County Court of Common Pleas alleging that J.B. Hunt intentionally interfered with his ability to contract.[2] In his complaint, appellant claimed that J.B. Hunt was aware of its interference with his ability to enter into trucking contracts and that this resulted in his inability to become gainfully employed with comparable trucking companies. More specifically, appellant alleged that J.B. Hunt had prepared and filed a report with USIS indicating that he had been discharged for an "at fault accident" even ...


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