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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CYNTHIA WARREN, JASON WARREN and ALYSSA WARREN, Plaintiffs, v. MAURO HUMBERTO RODRIGUEZ-HERNANDEZ1 and WATER PROVIDERS LIMITED d/b/a SWEET H20, Defendants. MEMORANDUM OPINION AND ORDER DISMISSING ACTION AS TO DEFENDANT MAURO HUMBERTO RODRIGUEZ-HERNANDEZ, GRANTING WATER PROVIDERS, LTD. D/B/A SWEET H2O's MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT I. Procedural History Civil Action No. 5:10CV25 (STAMP)

The above-styled civil action arises out of a two-vehicle automobile accident that occurred on November 16, 2009 in New Martinsville, West Virginia. Defendant Mauro Humberto Rodriguez-

Hernandez ("Rodriguez-Hernandez"), an employee of Water Providers Limited d/b/a Sweet H2O ("Water Providers") who was driving a Water Providers truck, collided with a vehicle driven by Trevor

Mauro Humberto Rodriguez-Hernandez is a named defendant in both this action, as well as Civil Action No. 5:10CV24. However, the plaintiffs have failed to effectuate service of the complaint on him. Count I of the amended complaint alleges a claim for negligence against Rodriguez-Hernandez, which this opinion does not address, as Rodriguez-Hernandez was never served. Because Rodriguez-Hernandez was never served, the action against him is dismissed pursuant to Rule 4 of the Federal Rules of Civil Procedure.

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Standiford and owned by Cynthia and Jason Warren.2

Alyssa Warren Both

was a passenger in the vehicle at the time of the accident. she and Trevor Standiford sustained significant injuries.

Following the accident, the plaintiffs filed a complaint in the Circuit Court of Wetzel County, West Virginia alleging claims of negligence, negligent entrustment, respondeat superior, the tort of outrage, and property damage. This case was subsequently

removed by the defendant, Water Providers, to this Court. On March 16, 2010, defendant State Farm Fire & Casualty Company ("State Farm") filed a motion to dismiss the plaintiffs' request for injunctive relief contained in the ad damnum clause of their complaint.3 After that motion had been fully briefed, this

Court entered a memorandum opinion and order granting as framed the motion to dismiss the request for injunctive relief of State Farm. Specifically, the Court granted the motion to dismiss the request for injunctive relief because the plaintiffs had failed to plead a proper cause of action. In addition to analyzing the complaint

under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the

Trevor Standiford also brought suit against RodriguezHernandez and Water Providers. (Civil Action No. 5:10CV24.) These cases were consolidated for discovery purposes and dispositive motions per an order of this Court on July 1, 2010. Because the same dispositive motions were filed in both cases, this opinion will, at times, reference all plaintiffs, not just the Warrens. In the ad damnum clause of the complaint, the plaintiffs requested that the Court issue an order prohibiting State Farm and other relevant insurance companies involved in the claim from disseminating information obtained during the course of litigation to third parties and indexing bureaus. (Compl. 11.) 2
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Court also analyzed the complaint under Rule 65, finding that the issuance of an injunction was unwarranted. On March 25, 2011, the plaintiffs filed a motion for leave to amend the complaint, to which Water Providers filed a response in opposition. After a hearing on the motion to amend the complaint,

this Court issued an order confirming the pronounced order of the Court granting as framed the defendant's motion to modify the scheduling order and granting the motion for leave to amend the complaint. Subsequently, the plaintiffs filed an amended complaint which adds a cause of action for negligent hiring and removes State Farm as a defendant. Later, the plaintiffs filed another motion This

for leave to amend the complaint to add additional parties.

Court denied the plaintiffs' request to join additional parties in a memorandum opinion and order dated August 5, 2011. On October 10, 2011, Water Providers filed a motion for summary judgment. One week later, the plaintiffs filed a motion

for summary judgment. Both motions have been fully briefed and are ripe for review. For the reasons set forth below, this Court finds that Water Providers' motion for summary judgment must be granted, and the plaintiffs' motion for summary judgment must be denied.4

On January 13, 2012, the undersigned judge sent a letter to counsel forth its tentative rulings and vacating the trials in both this case and Civil Action No. 5:10CV24. This memorandum sets forth those rulings in greater detail. 3

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II. On September 21, 2009,

Facts5 Rodriguez-Hernandez completed an

application for employment with Water Providers, in which he provided an address in Denton, Texas, and stated that he had a valid driver's license issued by the state of New Mexico. On

September 23, 2009, Water Providers ascertained that RodriguezHernandez did not possess a driver's license, and that the address that appeared on his New Mexico identification card was different from the one he provided on his employment application. no evidence that Water Providers took any action There is to verify

Rodriguez-Hernandez's legal status. Upon hiring Rodriguez-Hernandez, Water Providers provided him with an expense card and sent him to live and work in Wetzel County, West Virginia. Water Providers did not assign a specific

employee to transport Rodriguez-Hernandez to and from work while he was in West Virginia. Instead, Rodriguez-Hernandez was expected to share company vehicles with other employees. Rodriguez-Hernandez

was specifically told by Alex Morgan, the Pennsylvania Operations Manager, that he was not permitted to drive any Water Providers' vehicles.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party. Fed. R. Civ. P. 56(c). In this case, both parties have filed motions for summary judgment. Therefore, for the purpose of deciding these motions, this Court considers the facts as presented by both the plaintiffs and the defendant. 4

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On November 16, 2009, without permission from Water Providers or any supervisor, Rodriguez-Hernandez borrowed a 2008 Chevrolet 2500 commercial vehicle truck from another employee after the work day had ended in order to drive to the Laundromat. While

Rodriguez-Hernandez was doing his laundry, he drove to get a snack at a nearby convenience store. On his way back to the Laundromat,

on Route 2 in New Martinsville, West Virginia, Rodriguez-Hernandez made a sudden left hand turn across multiple lanes of traffic, causing a collision with the 1995 Toyota Land Cruiser driven by Trevor Standiford. New Martinsville Police Officer Friend V. Estep, responded to the accident and charged Rodriguez-Hernandez with failure to yield, making an improper turn, and failure to maintain control of his vehicle. Officer Estep determined that Rodriguez-Hernandez was an After the accident,

illegal alien with no valid driver's license. Rodriguez-Hernandez was deported. III. Applicable Law

Under Rule 56(c) of the Federal Rules of Civil Procedure, A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

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Fed. R. Civ. P. 56(c).

The party seeking summary judgment bears

the initial burden of showing the absence of any genuine issues of material fact. (1986). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

"The burden then shifts to the nonmoving party to come

forward with facts sufficient to create a triable issue of fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718-19 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the United States Supreme Court noted in Anderson, "Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon the mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. at 256. "The inquiry

performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250; see also Charbonnages de France v.

Smith, 597 F.2d 406, 414 (4th Cir. 1979)(Summary judgment "should be granted only in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law." (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950))). In Celotex, the Court stated that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time

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for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Summary

judgment is not appropriate until after the non-moving party has had sufficient opportunity for discovery. See Oksanen v. Page

Mem'l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502 U.S. 1074 (1992). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). IV. A. Discussion

Water Providers' Motion for Summary Judgment In its motion for summary judgment, Water Providers argues:

(1) It is not liable for the accident because it expressly forbid Rodriguez-Hernandez from using its vehicle and never authorized him to drive the truck on the day of the accident; (2) It is not vicariously liable for the accident because Rodriguez-Hernandez took the truck after being told that he was not permitted to drive any company vehicles, to perform a personal errand, after the work day had ended; (3) The plaintiffs' claim for negligent hiring fails because there are no facts that Water Providers owed the plaintiffs any duty with regard to hiring Rodriguez-Hernandez; (4) There is no evidence to support the plaintiffs' claims for punitive damages because there is no evidence that Water Providers' actions were

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willful, wanton, reckless, or committed with criminal indifference; and (5) The plaintiffs failed to adduce any evidence to support a claim under the tort of outrage because there is no evidence that Water Providers' actions "exceeded the bounds of decency," or that it acted intentionally or recklessly to inflict emotional distress on the plaintiffs. In their response in opposition, the plaintiffs argue that the defendant's motion for summary judgment must be denied because: (1) The vehicle collision was an ordinary and natural incident or logical result of employment; (2) Water Providers entrusted its vehicle to an employee with no valid driver's license; (3) Water Providers hired an illegal alien, placed that employee in the state of West Virginia, and entrusted its vehicle to that illegal alien employee which resulted in injuries to the plaintiffs; (4) Water Providers failed to exercise reasonable and prudent hiring

practices which lead to the employment Rodriguez-Hernandez; and (5) Water Providers must answer in punitive damages to prevent

repetitious conduct that causes injuries to the citizens of West Virginia. In its reply, Water Providers reasserts its previous arguments and also contends that there is no dispute as to the fact that Water Providers did not entrust its vehicle to Rodriguez-Hernandez. B. Plaintiffs' Motion for Summary Judgment Predictably, the plaintiffs' motion for summary judgment presents arguments similar to those stated in their response to

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Water Providers' motion for summary judgment.

The plaintiffs

contend that Water Providers should be held vicariously liable for the acts of its employee, Rodriguez-Hernandez, under the doctrine of respondeat superior. Further, the plaintiffs assert that the

public policy of the state of West Virginia mandates that foreign companies that hire illegal aliens must be held liable when that illegal employee causes harm to West Virginia citizens. In response, Water Providers argues that it is not vicariously liable for the accident because Rodriguez-Hernandez took the truck after being told that he was not permitted to drive any company vehicles, to perform a personal errand after the work day had ended. Water Providers further argues that Officer Estep's

statements regarding the general practices of work crews in West Virginia are not relevant to this accident and should be

disregarded.

Finally, Water Providers contends that there is no

public policy basis to impose vicarious liability upon it because Rodriguez-Hernandez was clearly outside the course and scope of employment at the time of the accident. In their reply, the plaintiffs reassert that Water Providers is vicariously liable to them because it created and controlled the circumstances that led to its employee causing an accident. plaintiffs also reiterate that public policy supports The the

application of the doctrine of respondeat superior in this case. Finally, the plaintiffs counter that the testimony of Officer Estep should be considered in determining the facts at issue.

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C.

Respondeat Superior The question of whether Water Providers can be held

responsible for the negligent acts of Rodriguez-Hernandez hinges upon whether, at the time of the accident, Rodriguez-Hernandez was acting within the scope of his employment. "The fundamental rule

in West Virginia is that if it can be shown that an individual is an agent and if he is acting within the scope of his employment when he commits a tort, then the principal is liable for the tort as well as the agent." Barath v. Performance Trucking Co., Inc.,

424 S.E.2d 602, 605 (W. Va. 1992); see also Griffith v. George Transfer & Rigging, Inc., 201 S.E.2d 281, 287 (W. Va. 1973) ("The universally recognized rule is that an employer is liable to a third person for any injury to his person or property which results proximately from tortious conduct of an employee acting within the scope of his employment."). "`Scope of employment' is a relative term and requires a consideration of surrounding circumstances including the character of the employment, the nature of the wrongful deed, the time and place of its commission and the purpose of the act." Griffith, 201 S.E.2d at 288. West Virginia courts have held that an employee is

not within the scope of his employment when he is on a "frolic of his own." Jenkins v. Spitler, 199 S.E. 368, 370 (W. Va. 1938).

Specifically, "the owner of an automobile is not liable for injuries caused by a servant, while operating the car on his own business or pleasure." Id. (internal quotations omitted).

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The plaintiffs argue that Water Providers must be held liable under the doctrine of respondeat superior because it hired an illegal alien in order to profit from the West Virginia Marcellus shale oil and gas industry. According to the plaintiffs, Water

Providers required Rodriguez-Hernandez to be a transient resident of West Virginia, but failed to assign him a driver or notify other employees on the work crew that Rodriguez-Hernandez had no driver's license. While all of these facts may be true, they do not prove

that Rodriguez-Hernandez was in the scope of employment at the time of the accident. A review of the entire record reveals that at the

time of the accident, Rodriguez-Hernandez was on a personal errand. On November 16, 2009, the day of the accident, RodriguezHernandez's shift ended around 6:00 p.m. (Morgan Aff.

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