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Palmer v. Baloh

United States District Court, D. Utah, Central Division

February 15, 2019

DIANE PALMER and HEATHER SMITH, Plaintiffs,
v.
KEITH E. BALOH, an individual; DEALERS' CHOICE TRUACKAWAY SYSTEM, INC. dba TRUCKMOVERS, a Kansas Corporation; DOES I-V; and ROE CORPORATIONS VI-X, Defendants.

          MEMORANDUM DECISION AND ORDER

          DALE A KIMBALL, UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendants Keith E. Baloh and Dealers' Choice Truckaway System, Inc. dba Truckmovers' Motion for Partial Summary Judgment [ECF Docket No. 30] and Motion for Summary Judgment [ECF Docket No. 31] pursuant to Rule 56 of the Federal Rules of Civil Procedure. The court held a hearing on the motions on February 8, 2019. At the hearing, Plaintiffs were represented by Tyler Christensen, and Defendants were represented by Kristina H. Ruedas and Gary L. Johnson. The court took the matter under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and facts relating to the motion. Now being fully advised, the court issues the following Memorandum Decision and Order.

         BACKGROUND

         Plaintiffs Diane Palmer (“Palmer”) and Heather Smith (“Smith”) are residents of Grace, Idaho; Palmer is Smith's mother. Palmer is a Certified Nurse Assistant and cares for patients out of her home, which is a Certified Family Home under Idaho state law. Defendant Keith E. Baloh (“Baloh”) is a resident of Crawford County, Kansas, and Defendant Dealers' Choice Truckaway Systems, Inc. dba Truckmovers (“Truckmovers”) is a Kansas corporation. At the time of the events giving rise to the Complaint, Baloh was employed by Truckmovers. On or around June 8, 2013, Palmer was driving her vehicle on Interstate-15 and pulling a 30-foot cargo trailer in Beaver County, Utah. Around the same time, Baloh was driving a Truckmovers commercial vehicle behind Palmer on the interstate. While following Palmer, Baloh slammed into the rear of Palmer's vehicle and trailer causing Palmer to lose control of the vehicle. The accident resulted in personal injuries to Palmer and the destruction of the trailer and its contents.

         As a result of the accident, Palmer claims $240, 000 in lost wages. Her claim is based on income she alleges she would have earned between June 2013 and June 2017 for taking care of patients in her home. Palmer did not work between 2009 and April 2013, but prior to 2009, she claims various patients paid her amounts ranging from $1, 300 to $2, 500 per month. Additionally, from 2007 to 2016, she only filed two tax returns. In 2008, her net business income was $12, 467, and in 2013 she reported $15, 000 in gross business income; she admitted there were expenses incurred in relation to the $15, 000, but she did not know how much those expenses were.

         In April 2013, Palmer began caring for Stuart Call (“Call”) in her home. Palmer claims Call paid her $5, 000 a month for April, May, and June 2013-partly in cash and the remainder from Call's debit card which Palmer used to pay her bills. Palmer has produced copies of three checks for $5, 000 that she says Call paid her for her caretaking. However, she admitted to writing the checks herself and never cashing them. Following the accident, in July 2013, Palmer claims she reimbursed her daughters for their help in caring for Call, but she could not say how much she paid them. Then, in August 2013, Palmer married Call.

         Apart from Call, Palmer identified two prospective clients whose business she allegedly lost due to the accident: James Mathey (“Mathey”), whom Palmer had known since she was a child, and Kara Schell (“Schell”). Defendants deposed Mathey on May 14, 2018. Mathey claimed he would have paid Palmer $5, 000 a month or “everything he's got” for her care after his brain surgery in July 2013. Yet, Mathey had no source of income or benefits between July and October 2013, and, at the time of his deposition, he was receiving $1, 333.70 a month in Social Security-the most he had received since his brain surgery. Mathey believed that Medicare would have paid for him to stay at Palmer's house after his surgery. As for Schell, Palmer never provided Defendants with her correct contact information and eventually indicated that she would not call Schell as a witness.

         Palmer retained only one expert witness, Dr. Anthony Joseph (“Dr. Joseph”). Dr. Joseph's first and only examination of Palmer took place on May 6, 2014. As a result of that visit, Dr. Joseph assigned Palmer a 12% whole body impairment rating. A follow-up examination was scheduled for June 25, 2018, but that appointment never took place. Defendants deposed Dr. Joseph on April 3, 2018. To date, Dr. Joseph has not produced a written expert report detailing his opinions and conclusions regarding Palmer's injuries or treatment.

         As for Smith, shortly after the accident, individuals involved with the accident notified her that the items in the trailer were destroyed. Smith owned some of the destroyed items, but she was not in the car with Palmer at the time of the accident. Smith sent the items with Palmer because Smith was in the process of moving back to Idaho. Following the accident, at the request of Palmer's former attorney, Smith created a list detailing her items in the trailer along with each item's estimated value. Smith claims that $52, 277.43 of the property allegedly damaged in the accident belonged to her.

         On March 20, 2017, Palmer filed the instant lawsuit against Defendants in Utah state court. Plaintiffs' Complaint asserts two causes of action: (1) a negligence claim against Baloh; and (2) a vicarious liability claim against Truckmovers. After Defendants removed the case to this court, Palmer filed an Amended Complaint on July 21, 2017. The Amended Complaint added Smith as a plaintiff.

         DISCUSSION

         Defendants move for (1) partial summary judgment on Palmer's damages claims for past lost wages, future lost earning capacity, and future medical expenses; and (2) summary judgment on all of Smith's claims. “Summary judgment is appropriate when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d 1216, 1219 (10th Cir. 2016). When applying this standard, the court views “the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the nonmoving party.” Fowler v. United States, 647 F.3d 1232, 1237 (10th Cir. 2011). Moreover, to defeat a motion for summary judgment, “evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise” because “[u]nsubstantiated allegations carry no probative weight in summary judgment proceedings.Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

         I. Defendants' Motion for Partial Summary Judgment

         Defendants move for partial summary judgment on Palmer's damages claims for past lost wages, future lost earning capacity, and future medical expenses. To establish a claim for negligence, a plaintiff must establish the following four elements: “(1) a duty of reasonable care owed by the defendant to plaintiff; (2) a breach of that duty; (3) the causation, both actually and proximately, of injury; and (4) the suffering of damages by the plaintiff.” Gables at Sterling Vill. Homeowners Ass'n, Inc. v. Castlewood-Sterling Vill. I, LLC, 417 P.3d 95, 110 (Utah 2018) (quoting Williams v. Melby, 699 P.2d 723, 726 (Utah 1985)). For the fourth element, damages, a plaintiff must prove two points: (1) the fact that damages actually occurred; and (2) the amount of those alleged damages. Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 336 (Utah 1985). For the first point, a plaintiff must provide evidence that gives “rise to a reasonable probability that the plaintiff suffered ...


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