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R & L Carriers Shared Services, LLC v. Markley

Court of Appeals of Arkansas, Division IV

April 19, 2017

R&L CARRIERS SHARED SERVICES, LLC and DEAN WETHINGTON APPELLANTS
v.
STUART MARKLEY and MADISON COUNTY TELEPHONE COMPANY, INC. APPELLEES

          APPEAL FROM THE MADISON COUNTY CIRCUIT COURT [NO. 44CV-2014-029-5] HONORABLE BETH BRYAN, JUDGE

          Kutak Rock LLP, by: Niki Cung and Ashley Welch Hudson, for appellants.

          Mason Law Firm, PLC, by: G. Chadd Mason; and Gunn Kieklak Dennis LLP, by: Jennifer Lloyd, for appellee Stuart Markley.

          Munson, Rowlett, Moore and Boone, P.A., by: Mark S. Breeding and Beverly A. Rowlett, for appellee Madison County Telephone, Inc.

          Larry D. Vaught, Judge

         This is an appeal from a negligence action involving an eighteen-wheeler that hit a telephone line and injured a worker repairing the line. In this appeal, we consider whether the worker's employer can be liable for negligence under the theory of implied indemnity. We also review several alleged evidentiary errors and decide whether the circuit court erred by refusing to grant a motion for judgment notwithstanding the verdict (JNOV) or alternatively for a new trial. We affirm.

         I. Background

         This case begins with a low-hanging telephone line that stretched across the entry to Roy's Body Shop in Madison County, Arkansas. Madison County Telephone Company, Inc. (MCTC), dispatched its employee Stuart Markley to repair the low-hanging line. Markley worked from the raised bucket of a work truck to repair the line. He was not wearing a safety harness, and he did not put out any warning cones to alert others to his presence.

         During this time, Dean Wethington, in the scope of his employment with R&L Carriers Shared Services, LLC (R&L), was making a delivery to Roy's Body Shop in an eighteen-wheeler. While driving the eighteen-wheeler into the entrance of Roy's Body Shop, Wethington's truck snagged the low-hanging telephone line that Markley was repairing. This set off a chain of events that left Markley severely injured.

         Markley sued Wethington and R&L for negligence and recklessness. R&L and Wethington responded and alleged comparative fault by Markley. Specifically, they emphasized Markley's failure to abide by certain National Electric Safety Code (NESC) and Occupational Safety and Health Administration (OSHA) regulations as well as Arkansas statutes. R&L also filed a third-party complaint against MCTC, Roy's Body Shop, and its owner, Roy Elsey.[1]

         In its third-party complaint against MCTC, R&L claimed that MCTC's negligent supervision and training of Markley contributed to Markley's injuries and that MCTC failed to perform some of its statutory and regulatory responsibilities. MCTC filed a motion to dismiss R&L's complaint against it on the basis that, because it had paid workers'-compensation benefits to Markley, it could not be liable for negligence. R&L responded by arguing that MCTC could be held liable under the theory of implied indemnity. The circuit court denied MCTC's motion to dismiss. At this juncture, MCTC and R&L filed competing motions for summary judgment on the issue of whether MCTC had an implied duty to indemnify R&L. The circuit court denied MCTC's motion and took R&L's motion under advisement. It also severed the negligence and indemnity claims and bifurcated the trial.

         The issues between R&L, Wethington, and Markley were tried to a jury in July 2015. The jury returned a verdict in favor of Markley, finding that he was 35 percent negligent and that R&L and Wethington were 65 percent negligent. It found that Markley's damages were $570, 000, resulting in a judgment against R&L and Wethington in the amount of $370, 500.

         Following the entry of the judgment, R&L and Wethington filed a motion for JNOV or alternatively for a new trial. The motion was based on the premise that the jury's verdict was not based on substantial evidence and that the circuit court committed evidentiary errors. The motion was deemed denied.

         MCTC also filed a second motion for summary judgment on the issue of implied indemnity. R&L's competing motion was still under advisement. After a hearing, the circuit court granted MCTC's motion and found that MCTC did not have a duty to indemnify R&L. The circuit court also denied R&L's motion for summary judgment. The circuit court entered an ...


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