CHARLESTON – The personal representatives of two men who were killed when the tractor-trailer they were operating crashed and burned were unsuccessful in their appeal of a partial summary judgment decided in favor of the defendants in the lawsuit they filed.

The 3-2 memorandum decision of the ourt was filed on June 24. Justices Margaret L. Workman, Menis E. Ketchum and Allen H. Loughry II made up the majority with Chief Justice Brent D. Benjamin and Justice Robin Jean Davis in dissent.

Kenneth Williams and Quentin Rutledge were both killed on Jan. 12, 2009, when the truck Rutledge was driving veered off a snowy road in Lewis County, crashed over an embankment and caught fire. Williams was in the sleeper cab of the truck at the time of the accident.

The drivers were directly employed by Drivers Management, a subsidiary of Gra-Gar, LLC, and Drivers Management had a contract whereby its drivers were provided to Werner Enterprise, Inc. for the operation of trucks Werner owned.

Immediately after the accident, Crawford and Company was hired to investigate and Crawford advised Werner that the tractor-trailer was unsalvageable. Werner then authorized destruction of the vehicle on Jan. 14, 2009.

In letters dated Feb. 11, 2009 and Feb. 18, 2009, Werner was advised that the decedents’ survivors had hired counsel and that they wanted Werner to preserve the vehicle. After first responding that it was trying to locate the truck, Werner then advised that it had decided to go ahead and dispose of the vehicle because there was no issue of negligence under the Workers’ Compensation Act.

Petitioners Jannell Williams and Cheryl Rutledge did subsequently receive Workers' Compensation payments under Drivers Management through an account maintained by Werner, the opinion says.

On Dec. 9, 2009, Petitioners filed suit alleging negligence, deliberate intent, wrongful death and negligent and intentional spoliation of evidence against Werner.

Werner filed a motion for partial summary judgment on Sept. 27, 2011, contending that it was an employer of the decedents and the negligence, deliberate intent, and wrongful death claims were precluded by the Nebraska Workers’ Compensation Act because the contract for employment with decedents was entered into in Nebraska.

A hearing was held on the motion for summary judgment on Oct. 7, 2011, and Drivers Management was voluntarily dismissed as a defendant by Petitioners at the hearing.

On Oct. 17, 2011, the circuit court issued an order granting partial summary judgment in favor of Werner, finding that Werner was the employer of the decedents and that the Nebraska Workers’ Compensation law applied. In this order the court found that Werner was entitled to immunity on negligence, deliberate intent, and wrongful death claims like it had sought.

In an order filed October 21, 2011, the court found that any negligent spoliation claims against Werner and Gra-Gar were barred based on Workers’ Compensation law as well. However, the court ruled that petitioners could argue in relation to their intentional spoliation of evidence claim that Werner disposed of the tractor-trailer with knowledge of a potential civil action claim for defective product of the tractor-trailer.

The petitioners appealed the orders of the circuit court to the state Supreme Court.

“On appeal, petitioners first argue that the circuit court erred in granting partial summary judgment on the deliberate intent, negligence, wrongful death, and negligent spoliation of evidence claims by finding that Werner was an employer of the decedents and therefore entitled workers’ compensation immunity,” the court wrote.

“Petitioners also argue that the circuit court erred in applying the Nebraska Workers’ Compensation Act and Nebraska law.

“Petitioners argue that the circuit court also erred in granting partial summary judgment in favor of Werner on petitioners’ claim for negligent spoliation of evidence which would be used in a claim against a third-party, this claim is a stand-alone tort that does not fall within any immunity afforded by an applicable workers’ compensation scheme.

“Finally, petitioners argue that the circuit court erred in precluding them from arguing a potential claim of negligent vehicle maintenance in connection with their spoliation of evidence claims on the basis that the entity responsible for vehicle maintenance, Gra-Gar, LLC, a subsidiary of Werner, was also an employer of the decedents and thereby entitled to workers’ compensation immunity.

“As to each of these arguments, this Court finds no error... A review of the record below shows that the circuit court addressed each of these issues at length.

“As to workers’ compensation immunity, the circuit court properly found that because Werner exercised control over the decedents’ work and held itself out as the employer, Werner was in fact a joint employer and therefore entitled to workers’ compensation immunity.

“Moreover, the circuit court properly applied Nebraska Workers’ Compensation law to this claim, as Werner is a Nebraska corporation, the employment relationship was entered into in Nebraska, and the beneficiaries received workers’ compensation benefits from Werner pursuant to Nebraska law.

“The rulings on the spoliation claim were correct, as the circuit court found that spoliation of evidence is not a stand-alone tort when the spoliation is a result of negligence.

“Additionally, we agree with the circuit court that the evidence shows that Gra-Gar, LLC is a subsidiary of Werner and therefore, under the facts of this case, entitled to immunity under the same theory that Werner is entitled to immunity.”

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