The opinion of the court was delivered by: Reagan, District Judge
This action is before the Court on the Motion for Summary Judgment on Punitive Damages brought by Defendant B & W Cartage Company, Inc. ("B & W") (Doc. 52). For the following reasons, the motion is DENIED.
On Friday, February 4, 2005, Ryan Trotter, a 21-year-old engineering student, was driving to his family home in Bridgeton, Missouri, to spend the weekend with his parents Shirley Trotter and Ernie Trotter, Plaintiffs herein, and to attend a dental appointment in St. Louis, Missouri. At about 12:20 p.m. that day Ryan Trotter was traveling eastbound on U.S. Interstate Highway 44 at or near Cuba, Missouri, when a B & W tractor-trailer truck operated by Jeffrey Wiegert that was traveling westbound on Interstate 44 jumped the median. The tractor-trailer collided with three eastbound cars, including Ryan Trotter's car, which was pinned under the tractor-trailer. Although Ryan Trotter suffered no trauma due to the collision, he was killed when, approximately eight to ten minutes after the collision, the tractor-trailer's gas tank exploded, resulting in a fire that engulfed his vehicle in flames. At the time of the collision, the evidence of record indicates, Jeffrey Wiegert was significantly over his hours of service limits as mandated by the Federal Motor Carrier Safety Regulations ("FMCSRs") promulgated by the Federal Highway Administration ("FHWA").
Ryan Trotter's parents have brought this action against B & W for wrongful death. By Order entered May 26, 2005, the Court held that this action is governed by the substantive law of Missouri. See Restatement (Second) of Conflict of Laws §§ 145-146 (1971). See also In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979, 644 F.2d 594, 611 (7th Cir. 1981); Ingersoll v. Klein, 262 N.E.2d 593, 595-96 (Ill. 1970). B & W has moved for partial summary judgment as to the Trotters' claim for punitive damages.
Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996). A motion for summary judgment may be rendered in whole or in part as to various issues in a case,see Weva Oil Corp. v. Belco Petroleum Corp., 68 F.R.D. 663, 667 (N.D.W.Va. 1975), including the issue of the availability of punitive damages. See Blakely v. Austin-Weston Center for Cosmetic Surgery L.L.C., 348 F. Supp. 2d 673, 681 (E.D. Va. 2004).
In considering a summary judgment motion, a court must review the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995); Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir. 1981). On summary judgment a court may not make credibility determinations or weigh the evidence, because these are tasks for a factfinder. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th Cir. 1994). In evaluating a motion for summary judgment, "[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
B. Aggravating Circumstances
Although Missouri's wrongful death act does not by its express terms provide for punitive damages, it does authorize the trier of fact to consider the "mitigating or aggravating circumstances attending the death." Mo. Rev. Stat. § 537.090. See also Moreland v. Columbia Mut. Ins. Co., 842 S.W.2d 215, 220 (Mo. Ct. App. 1992). Thus, "[a]lthough Missouri does not permit punitive damages per se in wrongful death cases, since 1855, it has allowed juries to consider aggravating circumstances in arriving at their verdicts." Morrissey v. Welsh Co., 821 F.2d 1294, 1302 (8th Cir. 1987) (applying Missouri law). Damages for "aggravating circumstances" are in the nature of punitive or exemplary damages. See Haehl v. Wabash R.R. Co., 24 S.W. 737, 741 (Mo. 1893); Parsons v. Missouri Pac. Ry. Co., 6 S.W. 464, 466-67 (Mo. 1888); Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 164 (Mo. Ct. App. 1997). Accordingly, an award for more than compensatory damages in a wrongful death case is permissible only if the decedent would have been entitled to punitive damages had he or she lived. See Dougherty v. Smith, 480 S.W.2d 519, 521 (Mo. Ct. App. 1972).
To support a claim for damages for aggravating circumstances, there must be clear and convincing evidence in support of the claim. See Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo. 1996). Damages for "aggravating circumstances" in wrongful death cases depend on proof of "willful misconduct, wantonness, recklessness, or want of care indicative of indifference to consequences." Wiseman v. Missouri Pac. R.R. Co., 575 S.W.2d 742, 752 (Mo. Ct. App. 1978). Specifically, evidence must show that the defendant either knew or had reason to know that there was a high degree of probability that the defendant's conduct would result in injury. See Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Prods., Inc., 700 S.W.2d 426, 436 (Mo. 1985). The defendant's conduct must be tantamount to intentional wrongdoing where the natural and probable consequence of the conduct is injury. See id. at 435. With such a showing, a plaintiff can recover for aggravating circumstances based upon the defendant's complete indifference to or conscious disregard for the safety of others. See Alack v. Vic Tanny Int'lof Mo., Inc., 923 S.W.2d 330, 338-39 (Mo. 1996).
Although neither mitigating nor aggravating circumstances are statutorily defined, the courts, however, have adopted certain guidelines for determining when such damages are available. "The potential and seriousness of harm arising from a breach of duty is inevitably a part of the determination of whether conscious indifference to consequences has been established. The level of care required is directly proportional to the potential of harm arising from the breach." Schroeder v. Lester E. Cox Med. Ctr., Inc., 833 S.W.2d 411, 420 (Mo. Ct. App. 1992). See also Duncan v. Missouri Bd. for Architects, Prof'l Eng'rs & Land Surveyors, 744 S.W.2d 524, 533 (Mo. Ct. App. 1988). In explaining when damages for aggravating circumstances are not available, the Supreme Court of Missouri stated:
In the context of a negligence case, the "high degree of probability of injury" and "complete indifference or conscious disregard" standards are somewhat ambiguous.
From the negligence cases in which exemplary damages have been disallowed, however, factors that assist in identifying when submission of such damages is permissible can be distilled. Weighing against submission of punitive or aggravating circumstances damages are circumstances in which: prior similar occurrences known to the defendant have been infrequent; the injurious event was unlikely to have occurred absent negligence on the part of someone other than the defendant; and, the defendant did not knowingly violate a statute, regulation, or clear industry standard designed to prevent the type of injury that occurred.
Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151, 160 (Mo. 2000). See also Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226, 248 (Mo. 2001). Conversely, "[s]ubmission of aggravating circumstances is proper when the defendant could have reasonably been charged with knowledge of a potentially dangerous situation but failed to act to prevent or reduce the danger." Schroeder, 833 S.W.2d at 420.
C. The Evidence of Record
At the heart of this case are certain FHWA regulations governing the hours of service for commercial truck drivers. Under the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984, the FHWA has the authority to issue regulations pertaining to commercial motor vehicle safety and to enforce those regulations. See 49 U.S.C. §§ 521(b), 31133(a). Pursuant to that authority, the FHWA promulgated the FMCSRs, the following of which are pertinent to this case:
§ 390.11 Motor carrier to require observance of driver regulations.
Whenever . . . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound. § 395.3 Maximum driving time for property-carrying vehicles.
Subject to the exceptions and exemptions in § 395.1:
(a) No motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle:
(1) More than 11 cumulative hours following 10 consecutive hours off duty; or
(2) For any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, except when a property-carrying driver complies with the provisions of § 395.1(o) or § 395.1(e)(2).
(b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, for any period after --
(1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or
(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week. § 395.8 Driver's record of duty status.
(a) Except for a private motor carrier of passengers (nonbusiness), every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24 hour period using the methods prescribed [herein] . . . . * * * *
(e) Failure to complete the record of duty activities of this section or § 395.15, failure to preserve a record of such duty activities, or making of false reports in connection with such duty activities shall make the driver and/or the carrier liable to prosecution.
49 C.F.R. §§ 390.11, 395.3, 395.8.
The FHWA has developed regulatory guidance to assist motor carriers and other parties bound by the FMCSRs. See Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed. Reg. 16370 (1997). In this regulatory guidance, the FHWA explains, the agency "consolidated previously issued interpretations and regulatory guidance materials and developed concise interpretive guidance in question and answer form for each part of the FMCSRs." Id. at 16370.See also United States v. Thorson, No. 03-C-0074-C, 2004 WL 737522, at *8 (W.D. Wis. Apr. 6, 2004) ("[A]n agency's interpretation of its own regulations is entitled to a relatively high level of deference . . . . A court must accept the interpretation unless it is . . . plainly erroneous or inconsistent with the regulation."); Hickey v. Great W. Mortgage Corp., No. 94 C 3638, 1995 WL 317095, at *5 (N.D. Ill. May 23, 1995) ("Deference is particularly appropriate when an agency interprets its own regulation."). In interpretation of 49 C.F.R. § 395.3, the FHWA's regulatory guidance states: Question 7: What is the liability of a motor carrier for hours of service violations? Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations. Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur? Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers "permit" violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.
62 Fed. Reg. at 16424. In interpretation of 49 C.F.R. § 395.8, the regulatory guidance states: Question 21: What is the carrier's liability when its drivers falsify records of duty status?
Guidance: A carrier is liable both for the actions of its drivers in submitting false documents and for its own ...