text:
    Felipa Lenor SALDANA, Plaintiff-Appellant v. LARUE TRUCKING, LLC, National Indemnity Company, National Fire & Marine Insurance Company, Christopher W. Noland, David R. Glover, Rowland Timber Co., Inc., Bryon K. Sanders, and Armstrong Hardwood Flooring Company, Defendants-Appellees
    No. 52,589-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019 Rehearing Denied May 16, 2019
    LAW OFFICE OF DAMON D. KERVIN, By: Damon D. Kervin, Rayville, BISHOP PAXTON CRIGLER & MOBERLEY, By: Edwin Moberley, Tallulah, Counsel for Appellant
    FAIRCLOTH MELTON & SOBEL, LLC, By: Lottie L. Bash, Laura Beth Matthews, Alexandria, Franklin "Drew" Hoffman, Counsel for Appellees, Rowland Timber, Company, Inc. and Bryon K. Sanders
    TAYLOR WELLONS POLITZ & DUHE, By: Samuel Milton Rosamond, III, Adam Devlin deMahy, Jonathan B. Womack, New Orleans, Counsel for Appellees, National Fire & Marine Insurance Company & National Indemnity Company
    NEUNER PATE, By: James L. Pate, Jason Thomas Reed, Nicholas G. Jones, Lafayette, Counsel for Appellees, LaRue Trucking, LLC, Christopher W. Noland, and David R. Glover
    Before PITMAN, GARRETT, and STONE, JJ.
   GARRETT, J.

This appeal involves a three-vehicle accident, in which the plaintiff, Felipa Lenor Saldana, was injured when her vehicle collided with an 18-wheeler log truck on a rural highway. After the initial collision, Saldana then struck a parked vehicle. The trial court granted several motions for summary judgment. One judgment dismissed the alleged insurer of (1) the log truck driver, (2) the trucking company which employed him and leased the log truck, and (3) the individual who owned both the trucking company and the log truck on the basis that the policy had been cancelled prior to the accident. Another judgment dismissed the timber company which (1) was hired to cut and haul the timber and (2) hired the trucking company to assist in hauling the timber, and its insurer. Saldana appealed. We reverse the summary judgment in favor of the timber company and its insurer on the issue of signage and voluntary assumption of a duty to warn and remand the matter to the trial court. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As explained below, the trial court was presented with a plethora of motions for summary judgment by different defendants and their insurers, which addressed multiple issues and bases for liability. As a result of the rulings on the motions, the only remaining defendants in this case are the log truck driver, his employer, and the owner of the log truck, none of whom have any liability insurance coverage.

On appeal and after oral argument, the plaintiff contests only two of the many rulings made below - the granting of summary judgment in favor of the timber company and its insurer on (1) the signage and failure to warn issue and (2) the issue of direct and/or vicarious liability for the actions of the log truck driver under the Federal Motor Carrier Safety Regulations ("FMCSR").

Based upon the numerous documents, depositions, and exhibits submitted in connection with the motions for summary judgment, we glean the following facts. On August 22, 2015, at about 7:40 a.m., a collision occurred on Highway 65 in Tensas Parish which involved three vehicles: a 2009 Honda Accord, which was driven by Saldana; a 1994 Peterbilt log truck, which was driven by David R. Glover, owned by Christopher W. Noland, leased to Noland's company, LaRue Trucking, LLC ("LaRue"), and insured by National Fire & Marine Insurance Company ("National Fire"); and a 1990 Mack log truck, which was driven by Bryon K. Sanders, owned by Rowland Timber Co., Inc. ("Rowland Timber") , and insured by National Fire. Pursuant to a written contract, Rowland Timber had been hired by Armstrong Hardwood Flooring Company ("Armstrong") to harvest timber it had bought from Somerset Plantation in Tensas Parish and to haul the logs to Armstrong's facility in Vicksburg, Mississippi. Rowland Timber transported some of the logs to Vicksburg. In order to complete the job, Rowland Timber also entered into a verbal agreement with LaRue to haul additional logs. Glover was employed by LaRue, and Sanders worked for Rowland Timber. Both Rowland Timber and LaRue were registered federal motor carriers, and each company's truck operated under its own United States Department of Transportation ("USDOT") number.

Both Saldana and Glover were southbound on a two-lane road. The trailer of Glover's log truck was empty as he was apparently en route to pick up a load. As Glover was turning left onto a private road leading to the Somerset Plantation logging site, Saldana attempted to pass Glover; their vehicles collided. Saldana then traversed the shoulder of the road and struck the front passenger side of Sanders's truck, which was parked alongside the dirt road, almost perpendicular to the highway. At the time of this collision, Sanders was outside of his truck, strapping down his load before proceeding to Vicksburg.

On March 9, 2016, Saldana filed suit against the drivers, owners, and insurers of the two log trucks, as well as the alleged employers of the drivers and Armstrong. She alleged that Glover illegally stopped in the southbound lane, had no functioning brake and/or tail lights, and failed to give a left-hand turn signal. She asserted that Glover's vehicle collided with her Honda. After the initial collision with Glover, her vehicle then struck Sanders's vehicle, which she claimed was unlawfully parked and/or obstructing passage.

In their answers, the defendants asserted that the accident was caused by Saldana's negligence. Additionally, Sanders and Rowland Timber alleged in their answer, as an affirmative defense, that "prior to the incident, Rowland Timber had placed orange warning signs that stated 'Log Trucks Entering Highway' that were visible from both lanes of travel along Highway 65 before the turn road."

While National Fire admitted in its answer that it had a policy issued to Rowland Timber, it asserted that its policy with LaRue was cancelled on August 13, 2015, nine days before the accident. On August 26, 2016, National Fire moved for partial summary judgment on the basis that the policy was cancelled due to nonpayment of the premium at the request of Capital Premium Financing, Inc. ("Capital Financing"), the company with which LaRue had financed its premiums and which had a power of attorney from LaRue in its premium finance agreement.

On June 13, 2017, Sanders and Rowland Timber filed a motion for summary judgment. They asserted that, since Sanders was properly stopped on a side road at the time of the collision, he neither caused nor contributed to the accident. Instead, Saldana's vehicle left the highway after impacting with Glover's truck and struck the front passenger side of Sanders's vehicle which was parked on a private roadway. Citing Saldana's deposition, they asserted that, as Glover slowed to make a left-hand turn into the private driveway, Saldana tried to pass Glover in the northbound lane. They also argued that (1) LaRue was an independent contractor hauling timber for Rowland Timber and, consequently, Rowland Timber had no vicarious liability for LaRue; and (2) Rowland Timber had no duty to provide signage warning in the area where log trucks entered or exited the highway. On June 22, 2017, National Fire filed a motion for summary judgment in its capacity as the insurer for Sanders and Rowland Timber and adopted their arguments.

On January 12, 2018, Armstrong filed a motion for summary judgment. It requested that it be dismissed from the suit because Saldana could not meet her burden of proving that Rowland Timber or LaRue personnel were acting as its employees or that it was otherwise negligent. Armstrong stated that it had a written contract with Rowland Timber for Rowland Timber to log the Somerset Plantation site and transport the logs to Vicksburg. Rowland Timber subsequently entered into a separate oral agreement with LaRue; Armstrong did not contract with LaRue. Summary judgment in Armstrong's favor was granted by judgment signed February 8, 2018. No appeal was taken from this judgment.

On January 22, 2018, Rowland Timber filed another motion for summary judgment, seeking dismissal of any claims against it under the Code of Federal Regulations ("C.F.R.") arising out of the actions of LaRue and Glover. This motion was filed solely to address Saldana's newly asserted theory that, under the C.F.R., Rowland Timber was Glover's statutory employer. Rowland Timber contended that LaRue and Glover were operating under LaRue's independent USDOT registration number and that it could not be held liable for their actions.

On February 26, 2018, an amended petition for damages was filed. Among other things, it added additional claims pertaining to Saldana's alleged injuries, replaced allegations about Armstrong with claims against Rowland Timber, and added additional allegations against Glover. However, a motion to strike allegations of intoxication against Glover was subsequently granted.

On that same day, Saldana filed an opposition to the three motions for summary judgment involving Sanders, Rowland Timber, and National Fire as their insurer, as well as a separate opposition to National Fire's motion for partial summary judgment based on the cancellation of LaRue's policy. Attachments to the oppositions included excerpts from or whole depositions of Rowland, as an individual and on behalf of Rowland Timber; Noland; Saldana; Sanders; Blaine Burroughs, Armstrong's Director of Lumber procurement; State Trooper David Cummings, who investigated the accident; Lt. Mark Guy, an investigator from the Tensas Parish Sheriff's Office ("TPSO"); Sgt. Evelyn Guy, one of the responding TPSO officers; Steven Hisaw, a volunteer first responder; and David Stopper, Saldana's expert on trucking safety standards (along with a copy of his report); and photos of the accident scene.

A hearing on the Rowland Timber/Sanders/National Fire motions for summary judgment was held on April 19, 2018. Summary judgment was granted in favor of Sanders and Rowland Timber, with the trial court finding that Sanders's truck, which was on a private driveway, had no causal relationship with the accident and that no law required Rowland Timber to place warning signs; in favor of Rowland Timber on the issue of its alleged vicarious liability for LaRue and Glover pursuant to the Federal Motor Carrier Act ("FMCA"), based on a finding that LaRue was an independent contractor under both Louisiana law and the FMCA; and National Fire, as alleged insurer of Sanders and Rowland Timber. A judgment granting all three motions for summary judgment was signed April 26, 2018, and the matter was designated a final judgment. Saldana filed a motion for new trial on May 8, 2018. The trial court denied the motion at a hearing on June 12, 2018, and by judgment signed on June 22, 2018.

On June 25, 2018, National Fire filed another motion for summary judgment based on cancellation of the LaRue policy. It specifically sought to refute Saldana's argument that National Fire could not cancel LaRue's policy on less than 35 days' notice because of rules in the USDOT regulations at 49 C.F.R. § 387.7, which concern certain policies issued to federally certified motor carriers. National Fire asserted that, since LaRue did not request that National Fire certify the policy with the USDOT and the policy was, consequently, not certified to the USDOT, the cancellation was proper and effective. Saldana filed another opposition to National Fire's motion for summary judgment on July 10, 2018.

At a hearing on July 25, 2018, the trial court found that National Fire's policy was properly cancelled. Consequently, it granted National Fire's motion for summary judgment, and dismissed with prejudice Saldana's claims against it as the alleged insurer of LaRue, Noland, and Glover. Judgment was signed August 6, 2018, and designated a final judgment under La. C.C.P. art. 1915. As a result of all of these rulings, the only remaining defendants are LaRue, Noland and Glover, none of whom have liability insurance.

Saldana appealed the following judgments: the April 26, 2018 judgment dismissing her claims against Sanders, Rowland Timber and its insurer, National Fire; the June 22, 2018 judgment denying her motion for new trial; and the August 6, 2018 judgment dismissing her claims against National Fire as the insurer of LaRue, Noland, and Glover. However, Saldana states in her brief that she does not contest the dismissal of Sanders in the April 26, 2018 judgment. Additionally, at oral argument, Saldana stipulated that she was waiving consideration of the August 6, 2018 judgment dealing with the cancellation of LaRue's policy with National Fire. Accordingly, we address only the remaining issues pertaining to the summary judgments in favor of Rowland Timber and its insurer.

MOTION FOR SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So.3d 1002. The procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). It is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e. , whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Maggio v. Parker , 17-1112 (La. 6/27/18), 250 So.3d 874.

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4) ; Bank of Am., N.A. v. Green , 52,044 (La. App. 2 Cir. 5/23/18), 249 So.3d 219 ; Chanler v. Jamestown Ins. Co. , 51,320 (La. App. 2 Cir. 5/17/17), 223 So.3d 614, writ denied , 17-01251 (La. 10/27/17), 228 So.3d 1230.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A). When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the nonmoving party's favor. Maggio v. Parker , supra . A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Maggio v. Parker , supra . A "genuine issue" is a triable issue, an issue on which reasonable persons could disagree. Champagne v. Ward , 03-3211 (La. 1/19/05), 893 So.2d 773 ; Bloxham v. HDI-Gerling Am. Ins. Co. , 52,177 (La. App. 2 Cir. 6/27/18), 251 So.3d 601.

In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Tatum v. Shroff , 49,518 (La. App. 2 Cir. 11/19/14), 153 So.3d 561. The district court cannot make credibility calls on a motion for summary judgment, but must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion. Bloxham v. HDI-Gerling Am. Ins. Co. , supra .

In its first motion for summary judgment, Rowland Timber sought dismissal of the claims against it on the following grounds: (1) it had no vicarious liability for Sanders, who was not negligent; (2) it had no vicarious liability for LaRue, which was an independent contractor under Louisiana law; and (3) it had no independent liability for failure to warn because it had no duty to put up signs alerting the public to its logging activities. In its second motion for summary judgment, Rowland Timber sought dismissal of vicarious liability claims against it for the actions of Glover and/or LaRue arising under the FMCSR.

As previously noted, Saldana has specifically waived any claims against Sanders.

She has also failed to make any arguments in brief as to vicarious liability for LaRue and/or Glover under Louisiana law. Thus, we now address only the issues of (1) signage and duty to warn; and (2) vicarious liability under the FMCSR.

VOLUNTARILY ASSUMED DUTY TO WARN

Saldana claims that the trial court erred in granting summary judgment in favor of Rowland Timber and its insurer on the issue of signage and assumption of a duty to warn of hazardous conditions. The trial court ruled, without providing any reasons, that Rowland Timber had no duty here to erect signs because "there is apparently no law that requires such." Saldana argues that the record shows that Rowland Timber voluntarily assumed a duty to warn motorists of logging operations through its customary practices and procedures concerning the placement of warning signs and that it breached that duty here.

In its initial answer to the suit, Rowland Timber asserted that it had placed orange warning signs near the accident scene. However, in its motion for summary judgment, Rowland Timber took the position that it neither owed a legal duty to place signage in the area of the accident nor assumed such a duty.

Law

A duty of protection which has been voluntarily assumed must be performed with due care. Harris v. Pizza Hut of La., Inc. , 455 So.2d 1364 (La. 1984) ; Eason v. Finch , 32,157 (La. App. 2 Cir. 8/18/99), 738 So.2d 1205, writ denied , 99-2767 (La. 12/10/99), 751 So.2d 861 ; Teter v. Apollo Marine Specialities, Inc. , 2012-1525 (La. App. 4 Cir. 4/10/13), 115 So.3d 590. Negligent breach of a duty which has been voluntarily or gratuitously assumed may create civil liability. Slaid v. Evergreen Indem., Ltd. , 32,363 (La. App. 2 Cir. 10/27/99), 745 So.2d 793 ; Moore v. Safeway, Inc. , 95-1552 (La. App. 1 Cir. 11/22/96), 700 So.2d 831, writs denied , 97-2921 (La. 2/6/98), 709 So.2d 735, 97-3000 (La. 2/6/98), 709 So.2d 744, 744.

Duty is ordinarily a question of law. Harris v. Pizza Hut of La., Inc. , supra . However, the existence of a duty cannot be determined in the absence of a case's factual background and knowledge of what the surrounding circumstances may be. Harkins v. Gauthe , 97-912 (La. App. 3 Cir. 2/4/98), 707 So.2d 1308, writ denied , 98-0584 (La. 4/24/98), 717 So.2d 1170.

The question of whether a person has voluntarily assumed a duty is one of fact. Schulker v. Roberson , 91-1228 (La. App. 3 Cir. 6/5/96), 676 So.2d 684.

Summary judgment on the issue of duty is proper "only where no duty exists as a matter of law and no factual or credibility disputes exist." Teter v. Apollo Marine Specialities, Inc. , supra . Further, legal causation is a mixed question of law and fact that the jury decides if reasonable minds could differ. Harkins v. Gauthe , supra .

In support of its position that it had no duty to post warning signs, Rowland Timber cites Bijeaux v. State, Dep't of Transp. & Dev. , 97-224 (La. App. 3 Cir. 10/29/97), 702 So.2d 1088. In that case, the plaintiff alleged that he lost control of his car due to mud on the road near a sugarcane operation. He sued a nearby sugarcane farm, with whom he settled, and the Louisiana Department of Transportation and Development ("DOTD"). Following a bench trial, the trial court dismissed all claims against DOTD. On appeal, the plaintiff argued that the DOTD had a legal duty to provide warning signs in the area. The appellate court held that, while DOTD had discretionary statutory authority to install temporary road signs to warn motorists of road hazards during sugarcane harvest season, it did not have a mandatory duty to post warning signs at points of ingress and egress of sugarcane fields. The court observed that such a requirement would necessitate hundreds of signs along Louisiana highways. It additionally noted the warnings of the Manual on Uniform Traffic Control Devices ("MUTCD") against the excessive use of signs and an expert's unrefuted testimony that warning signs would have been ineffective in that case. Likewise, in Racca v. St. Mary Sugar Coop., Inc. , 2002-1766 (La. App. 1 Cir. 2/23/04), 872 So.2d 1117, writ denied , 04-0698 (La. 5/7/04), 872 So.2d 1083, the first circuit upheld summary judgment in favor of a sugar cooperative and a sugar mill in a similar scenario, even though the plaintiff's expert opined that they should have erected warning signs to advise motorists of mud and sugarcane debris during harvest season. The court found that if DOTD, with its authority over highway maintenance and a specific authorizing statute, lacked the duty to post warning signs, then the sugar cooperative and the sugar mill certainly had no such duty. However, unlike the case before us, no party voluntarily placed signs in either of these cases.

Evidence Pertaining to Signs

In opposition to Rowland Timber's and its insurer's motions for summary judgment, Saldana submitted ample evidence to show that there are questions of material fact on these complex issues. In Rowland's individual and corporate depositions, he described his lengthy career in the logging industry and his customary practices and procedures. Rowland testified that, while no law required him to put out warning signs, he routinely did so for safety if he felt their presence was warranted.

According to Rowland, his company owned 6 to 10 caution signs, which had a variety of different wording, including "Truck Entering Road," "Slippery When Wet," and "Log Trucks Entering Road." Rowland testified that he had two signs at this job side, one on each side. Because the entrance was not dangerous and there was considerable visibility, he did not believe more were needed. The signs he thought he used in the instant case were driven in the ground and then zip-tied to something else. Rowland stated that, while preparing for Rowland Timber's corporate deposition, he talked to his wife about the caution signs at this location. According to him, she told him that, when she drove up to the accident site, she knew it was his location when she saw the signs.

Sanders testified that signs were not always up when he hauled for Rowland. However, he stated that he recalled seeing two orange signs in the area of this accident. In two photos he was shown at his deposition, he indicated the areas where he believed they were located. Unfortunately, both photos are extremely dark and he was not asked to circle the alleged locations of the signs.

Saldana testified that she did not see any orange signs or caution signs denoting log trucks entering or exiting the highway and that she would not have tried to pass the LaRue truck if there had been any warning signs about logging trucks. Lt. Guy, Sgt. Guy, and Hisaw all testified that they did not see orange signs at the accident scene.

Noland testified that he did not recall seeing any orange signs at the accident scene. He also stated that he had never seen any such warning signs where he had hauled timber. Because he never had to do it, Noland thought the responsibility of placing signs would be on the logger, not the driver.

In his deposition and report, Stopper opined that it was "custom practice" to post warning signs where lumber and tree cutting was common and that Rowland Timber was the party with that responsibility. He admitted that he did not know if there was a specific state law so providing in Louisiana. He further stated that signs could not just be posted along a highway; there had to be a need, and the signs would have to comply with MUTCD.

Discussion

Rowland Timber's motion for summary judgment was premised on its argument that it had no statutory duty under Louisiana law to place signs in the area where the trucks entered and exited the highway. However, in its answer to Saldana's petition, Rowland Timber chose to plead as an affirmative defense that it placed orange signs warning "Log Trucks Entering Highway" along the highway near the accident site. This allegation might be construed as an expression of Rowland Timber's voluntary assumption of a duty to warn. Proof tending to establish Rowland Timber's voluntary assumption of the duty is found in the deposition testimony of Rowland and Sanders. Rowland further testified that he posted the signs in a reasonable and prudent manner. However, the testimony of several witnesses present at the accident scene conflict with Rowland's testimony on this issue, and we are precluded from making credibility determinations in deciding motions for summary judgment.

We understand that the existence of a duty is ordinarily a legal question. However, the question of whether a person has voluntarily assumed a duty is one of fact. Thus, in the instant situation, there are mixed issues of law and fact, and genuine issues remain as to the facts needed to determine the legal issues. The jury will need to decide whether Rowland Timber voluntarily assumed a duty through its alleged conduct in possessing and putting out signs due to safety concerns and, if so, whether that voluntarily assumed duty was breached here.

Based upon our de novo review, we find that the record is replete with conflicting and unresolved material issues of fact regarding the duty allegedly assumed by Rowland Timber and whether there was breach thereof. Accordingly, this matter is inappropriate for resolution on summary judgment. The trial court's granting of summary judgment in favor of Rowland Timber and its insurer on this issue is reversed, and the matter is remanded to the trial court.

VICARIOUS LIABILITY

Saldana argues that the trial court erred in granting summary judgment in favor of Rowland Timber and its insurer on the issue of whether Glover could be deemed to be the statutory employee of Rowland Timber under the FMCSR, thereby making Rowland Timber vicariously liable for Glover's actions.

Federal Provisions

In 1956, Congress amended the Interstate Common Carrier Act in order to protect the public from the tortious conduct of the often judgment-proof truck lessor operators by requiring interstate motor carriers to assume full direction and control of the vehicles as if they were the owners of such vehicles. Jackson v. Wise , 2017-1062 (La. App. 1 Cir. 4/13/18), 249 So.3d 845, writ denied , 18-0785 (La. 9/21/18), 252 So.3d 914. Congress dissolved the Interstate Commerce Commission ("ICC") when it passed the Interstate Commerce Commission Termination Act of 1995 and replaced it with, among other agencies, the Federal Motor Carrier Safety Administration ("FMCSA"). Jackson v. Wise , supra .

The purpose of these laws and regulations was recently discussed in Mendoza v. Hicks , No. CV 15-1455, 2016 WL 915297 (E.D. La. Mar. 10, 2016) :

In the motor carrier industry, "authorized carriers" commonly lease equipment from independent contractors who are not subject to regulatory oversight by the Department of Transportation. Licensed carriers historically have used such leasing arrangements "to avoid safety regulations governing equipment and drivers." "Authorized carriers' use of non-owned vehicles also caused public confusion as to who was financially responsible for the vehicles." The Fifth Circuit explains that such arrangements often lead to a "round robin of finger pointing by carriers, lessors, owners and drivers ... and insurers."
In response to such abuse, Congress amended the Interstate Commerce Act to allow the Interstate Commerce Commission to promulgate regulations governing all aspects of non-owned equipment by authorized carriers. Those regulations are known as the Federal Motor Carrier Safety Regulations. 49 C.F.R 350-399. The purpose of the Regulations is to "to protect members of the public from motor carriers' attempts to escape liability for the negligence of drivers by claiming their drivers were independent contractors."
The Regulations accomplish this goal in two ways. First, they define "employee" broadly as "a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler." 49 C.F.R. 390.5. Second, the Regulations require a lease between an authorized carrier and an equipment owner to provide that "the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease." 49 C.F.R. 376.12(c)(1).
Read together, these regulations impose statutory liability on the lessee of a vehicle "if the lessee permits a non-employee to operate the leased equipment and that operator causes damages. As the Fifth Circuit explains, a driver becomes a "statutory employee" when a lease exists between an authorized carrier and an owner of leased equipment. "Consequently, the carrier will be held vicariously liable for injuries resulting from the use of the leased equipment." [Case citations omitted.]

Discussion

The trial court ruled that the agreement between Rowland Timber and LaRue was that of an independent contractor and that Rowland Timber had no vicarious liability for any tortious conduct by LaRue and/or Glover under Louisiana law or the FMCA. As previously noted, Saldana has not contested on appeal the trial court's ruling that LaRue was an independent contractor under Louisiana law. Rather, Saldana's very narrow argument before us is that, under the FMCSR, Rowland Timber can still be held vicariously liable for the actions of an independent contractor's driver. As explained below, Saldana's argument is premised on a strained reading of some regulations and language in some recent court cases which simply do not apply here.

As previously noted, both Rowland Timber and LaRue were registered federal motor carriers with each company's truck operating under its own DOT number. However, Saldana's expert, Stopper, opined that Glover was Rowland Timber's statutory employee under the FMCSR on the following bases: (1) the definition of "employee" found in 49 C.F.R. § 390.5 ; (2) the FMCSA published interpretation of that definition; and (3) Glover being "assigned" by Rowland Timber for this load. We have reviewed these three theories and find that they fail to impose vicarious liability upon Rowland Timber for Glover's actions under the circumstances of the instant case.

The pertinent portion of 49 C.F.R. § 390.5 states:

Employee means any individual , other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle) .... [Emphasis added.]

This provision contemplates that "individual" refers to human beings and not to corporations or other legal persons. See Illinois Bulk Carrier, Inc. v. Jackson , 908 N.E.2d 248 (Ind. Ct. App. 2009) ; Brown v. Truck Connections Int'l, Inc. , 526 F.Supp.2d 920 (E.D. Ark. 2007). Consequently, LaRue, the entity with whom Rowland Timber entered into an oral agreement, would not qualify.

The FMCSA published interpretation cited by Saldana states as follows:

Question: May a motor carrier that employs owner-operators who have their own operating authority issued by the ICC or the Surface Transportation Board transfer the responsibility for compliance with the FMCSRs to the owner-operators?
Guidance: No. The term "employee," as defined in § 390.5, specifically includes an independent contractor employed by a motor carrier. The existence of operating authority has no bearing upon the issue. The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators.

This interpretation was discussed in Beavers v. Victorian , 38 F.Supp.3d 1260 (W.D. Okla. 2014) :

This informal agency interpretation contained in a policy statement or enforcement guideline is not entitled to the degree of deference afforded to formal regulations under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), but is " 'entitled to respect' ... to the extent that these interpretations have the 'power to persuade.' "
Plaintiffs cite no authority for the proposition that FMCSA's interpretive guidance regarding 49 C.F.R. § 390.5 was intended to address the issue of common law tort liability for personal injuries caused by negligence of a commercial truck driver. Rather, the agency was speaking to the question of who is responsible for compliance with FMCSR, which establishes motor carrier requirements for matters such as record keeping, driver qualification and fitness, driver duties and hours of service, vehicle inspections and maintenance, and transportation of hazardous materials. See 49 C.F.R. §§ 390-397.
The common sense answer is that the responsibility for these matters should lie with the employer rather than an individual driver, even if the driver is also registered as a motor carrier (owner-operator). The Court finds no persuasive value from this FMCSA guidance when considering the separate question of vicarious liability for the driver's negligence. To the contrary, because the federal motor carrier statutes do not address tort liability, the Court doubts that FMCSA intended to express any view regarding the issue of one motor carrier's vicarious liability for the negligence of another motor carrier. [Emphasis added.]

The interpretation relied upon by Saldana does not support her argument because it addresses situations with "owner-operators." In the instant case, there was no owner-operator. Glover operated but did not own the logging truck involved in the accident, and LaRue is the entity which employed the driver.

We particularly note the language in the Beavers case that the FMCSR does not address tort liability. Similar language is found in Jackson v. Wise , supra , a recent case from the first circuit. There, a plaintiff who was injured when she was thrown from a float pulled by a tractor-trailer sought to use the FMCSR to impose liability upon the trucking company with whom the owner-operator of the truck had a written lease agreement. The court conducted an exhaustive analysis of the evolution of the federal regulations. The court ultimately held that it was required to look to state law to determine whether the owner-operator was acting within the course and scope of his employment at the time of the accident to determine if the trucking company was liable to the plaintiff because the FMCSR provisions did not create vicarious liability on the trucking company for the actions of the owner-operator. During its lengthy examination of the jurisprudence, the court favorably quoted the following language:

The text of the regulation requires certain language within lease agreements, but it does not impose any liability scheme directly. It is reasonable to interpret the regulation as leaving that question to various States' common-law courts. [Emphasis theirs.]

Stopper also opined that Glover was "assigned" to this load by Rowland Timber. He reached this conclusion by virtue of the fact that Rowland Timber contracted with LaRue, which then sent out its driver. In relevant part, 49 C.F.R. § 390.5 defines an employer as follows:

Employer means any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it [.] [Emphasis added.]

Rowland Timber did not own the truck driven by Glover, and there was no lease agreement here.

After briefing and prior to oral argument, Saldana cited a recently decided case, Puga v. RCX Sols., Inc. , 914 F.3d 976 (5th Cir. 2019), and the application of 49 U.S.C.A. § 14102, which refers to an "arrangement," not a "lease." Saldana contends that vicarious liability can be created under the arrangement that existed here. However, the court in that case stated that "[t]he relevant federal regulations only apply to motor carriers who use leased equipment." While there is language tending to support Saldana's argument in the initial opinion in the related case of Puga v. About Tyme Transp., Inc. , 227 F.Supp.3d 760 (S.D. Tex. 2017), recon. denied , 2017 WL 6049244 (S.D. Tex. Feb. 21, 2017), and recon. denied , 2017 WL 2730738 (S.D. Tex. June 26, 2017), in its order denying the second motion for reconsideration, that court found that "arrangement" contemplates a "lease-like" scenario. Because the agreement in the instant case does not involve a lease, these provisions of the FMCSR simply do not support Saldana's position.

Based on the foregoing, we find no merit to Saldana's arguments that summary judgment in favor of Rowland Timber and its insurer should have been denied because Glover was its statutory employee under the FMCSR. Accordingly, we affirm the granting of summary judgment in favor of Rowland Timber and its insurer on the issue of vicarious liability under the FMCSR.

CONCLUSION

The trial court ruling granting summary judgment in favor of Rowland Timber Co., Inc., and its insurer, National Fire & Marine Insurance Company, on the issue of signage and voluntary assumption of a duty to warn is reversed.

We affirm the granting of summary judgment in favor of Bryon K. Sanders; in favor of Rowland Timber Co., Inc., and its insurer, National Fire & Marine Insurance Company, on the issue of vicarious liability under Louisiana law and the FMCSR; and in favor of National Fire & Marine Insurance Company as the insurer of Larue Trucking, LLC, Christopher W. Noland, and David R. Glover.

The matter is remanded to the trial court for further proceedings.

Costs of this appeal are assessed equally between (1) Felipa Lenor Saldana and (2) Rowland Timber Co., Inc., and National Fire & Marine Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

APPLICATION FOR REHEARING

Frances Jones Pitman, Jeanette Giddens Garrett - Writing, Shonda D. Stone, Jay Bowen McCallum, and Jefferson Rowe Thompson.

Rehearing denied.

      Rowland Timber is owned by James Rowland ("Rowland").

      Several times in his depositions, he described the purpose of the caution signs he put out: "It's just safety," "Just safety for traffic coming by," "I don't know ... any law being that you have to have them out there. It's ... just a safety thing," and "Maybe I like signs. I mean we do it for safety."

      Plaintiff's counsel showed Sanders another photo of the accident scene which apparently did not show any signs. (However, this photo does not seem to be in the appellate record.) Nonetheless, Sanders maintained that he recalled seeing signs.


source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    Mary Beth LAIRD, Nee Walley, Appellee v. John Carlton LAIRD, Appellant
    No. 52,560-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019.
    LOOMIS & DEMENT, By: Albert Edward Loomis, Counsel for Appellee
    ROUNTREE LAW FIRM, By: James A. Rountree, DONALD L. KNEIPP, Monroe, Counsel for Appellant
    Before PITMAN, COX, and STEPHENS, JJ.
   COX, J.

The appeal arises out of the Fourth Judicial District, Ouachita Parish, Louisiana. John C. Laird ("Jack") appeals the trial court's award of damages to Mary Beth Laird ("Beth"). For the following reasons, we affirm in part and amend in part.

FACTS

The factual background leading to this community property dispute between Jack and Beth is detailed in Laird v. Laird , 46,459 (La. App. 2 Cir. 6/22/11), 69 So.3d 1173 ( Laird I ). This suit began with Beth's petition for partition of yet undivided community property. The issues in Laird I were regarding Jack's interest in Chapel Hill, LLC. The Chapel Hill interest is not disputed in the instant appeal because it was settled out of court and voluntarily dismissed from the suit. The only property in dispute in this appeal is the contingency fee earned by Dollar Laird, LLP. The contingency fee of $ 168,117.19 was owed to John C. Laird, A Professional Law Corporation from the litigation in Kemp v. Kansas City Southern Railway . In the community property settlement, signed by the parties on September 29, 2006 and October 11, 2006, Jack was apportioned all interest in Dollar Laird, LLP and John C. Laird, APLC. On June 14, 2007, Beth filed her amended and supplemental ancillary petition for partition of yet undivided community property, alleging the Kemp fee was omitted as a community asset.

The Kemp case was litigated in November 2006 and the fee amounts between the attorneys were resolved after the community property settlement. The contingency fee check was not deposited until 2007. In deposition testimony in 2006, Jack did not mention the Kemp contingency fee when asked about his contingency fee cases. Later, in a 2007 deposition, Jack did disclose the Kemp contingency fee. He testified that he did not mention it in 2006 because he was asked if he personally had any contingency fee cases, which he did not. He stated that Dollar Laird, LLC had contingency cases, but he personally worked for an hourly fee. During the pretrial phase, Beth joined several defendants and amended and supplemented her pleadings four times. After the dismissals, some voluntary, the only remaining issue at the time of the trial was the Kemp contingency fee.

On April 10, 2018, the trial court rendered judgment. The trial court found that the monies attributable to Jack from the Kemp litigation to be a community asset. The trial court treated the suit as a damages suit and awarded Beth "$ 56,039.06, plus legal interest thereon from June 7, 2007, until paid and all costs of these proceedings." The trial court did not determine Jack's actions constituted fraud and denied Beth's claim for reasonable attorney fees. Jack now appeals the trial court's judgment.

DISCUSSION

Jack argues the trial court erred in awarding Beth $ 56,039.06 in connection with the Kemp fee; not deducting the overhead percentage from the fee and the income taxes paid on it; finding that Jack owes Beth interest from the date of demand; taxing Jack with the costs of litigation; and, dismissing Jack's claim for reimbursement of overpaid child support.

Damages Award

Jack contends that Beth filed a claim asserting community assets were omitted, but that those assets are not stand-alone community assets because they are owned by the community entities. He claims the Kemp fee was paid to and owned by the law firms, and it is not an asset of the community in and of itself. He argues the Kemp fee is an award owned by a community property entity, of which he was given full ownership in the property settlement. For these reasons, Jack argues Beth is not entitled to any award in connection with the Kemp litigation.

A final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contains no prayer for general and equitable relief. La. C.C.P. art 862. Article 862 permits courts to render substantive justice on the basis of facts pled and to refuse to permit a denial of substantive rights due to technical defects of language or characterization of the case. So long as the facts constituting the claim or defense have been alleged and proved, the party may be granted any relief to which he is entitled under the fact pleadings and evidence, when the due process requirement of adequate notice to the parties of the matters to be adjudicated has been satisfied. Miller v. Thibeaux , 2014-1107 (La. 1/28/15), 159 So.3d 426.

An appellate court may disturb a damage award only when the record clearly reveals that the trial court abused its discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Baw v. Paulson , 50,707 (La. App. 2 Cir. 6/29/16), 198 So.3d 186.

Based on Article 862, the trial court was within its discretion to award Beth damages in connection to the Kemp fee. Beth's petition alleged that Jack received a portion of the Kemp fee after stating he did not have any contingency fee contracts. She requested that the court grant her the appropriate fee and interest from the Kemp fee. Based on the facts pled, Jack was given adequate notice that the litigation concerned his undisclosed portion of the Kemp fee.

The trial court stated that the nondisclosure of the outstanding contingency fee contract caused the community asset to be undervalued. The trial court determined that Beth was damaged to the extent that the fee was undisclosed during the community property settlement, and the outcome of the settlement would have been different had Jack disclosed the fee. Therefore, it was within the trial court's discretion to render justice on behalf of Beth based on the facts pled in the petition.

The trial court awarded Beth damages based on the undervalued community asset. The asset was undervalued about $ 168,000, the amount of the undisclosed Kemp fee. The trial court did not simply divide the undervalued amount in half. Instead, the trial court awarded Beth one-third of that amount. Jack argues the award should have been further reduced by the taxes and the law firm's overhead costs. Had Beth been awarded half of the fee amount, we might be inclined to agree. However, Beth's award has already been reduced from one-half to one-third. We find the trial court was within its discretion in awarding Beth $ 56,039.06, and affirm the award. This argument lacks merit.

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. La. C.C.P. art. 1920. The trial court's assessment of costs should only be reversed upon a showing of abuse of discretion. Johnson v. European Motors-Ali , 48,513 (La. App. 2 Cir. 11/20/13), 129 So.3d 697, writ denied , 2013-2964 (La. 2/28/14), 134 So.3d 1178. We do not find that the trial court abused its discretion in casting costs to Jack. After all, it was Jack who failed to disclose assets in the community property settlement, prompting the additional litigation. This argument lacks merit.

We do find merit in Jack's argument that interest should begin to run from the date of judgment. As stated previously, this suit arises from undisclosed assets at the time of the community property settlement. We find this case to be analogous to the equalizing payments in Reinhardt v. Reinhardt , 99-0723 (La. 10/19/99), 748 So.2d 423. In the case before us, an undisclosed asset caused an increase in the value of Jack's portion of the community property settlement. This undisclosed asset created an unequal division of the property, leading the trial court to award damages to Beth. Thus, as in Reinhardt, supra , we find the interest is not due until the judgment. We reverse the portion of the judgment stating interest begins on the date of demand and amend it to state interest begins to run at the date of judgment.

Child Support

Finally, we come to the portion of the judgment dismissing Jack's claim for overpayment of child support. Jack claims the child support calculation contained an error because Beth's spousal support was not included in her income. According to La. R.S. 9:315, gross income means:

The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers' compensation benefits, basic and variable allowances for housing and subsistence from military pay and benefits, unemployment insurance benefits, disaster unemployment assistance received from the United States Department of Labor, disability insurance benefits, and spousal support received from a preexisting spousal support obligation (Emphasis added).

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Chauvin v. Chauvin , 46,365 (La. App. 2 Cir. 6/22/11), 69 So.3d 1192.

Gross income includes the income from a previous spousal support, not a current spousal support obligation. Given the lack of evidence presented by Jack, we cannot find the trial court was manifestly erroneous in its decision to dismiss Jack's child support claim. This argument lacks merit.

Beth's Claim of Attorney Fees

Beth claims she is entitled to attorney fees based on the fraud committed by Jack in misrepresenting the truth about his contingency fee. The trial court stated that it did not find that Jack committed fraud regarding the misrepresentation of assets. Therefore, the trial court did not err in refusing to award attorney fees based on fraud. Beth's assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we reverse the ruling that interest begins to run from the date of demand. We amend that portion of the judgment to state that interest begins at the date of judgment. We affirm the remainder of the trial court's judgment. The costs of this appeal will be split evenly between the parties.

AFFIRMED IN PART; AMENDED IN PART.


author: CHAMBERLIN, JUSTICE, FOR THE COURT

text:
    The MATTER OF the ADOPTION OF the Child Described in the Petition: D.D.H., Patrick Latrell Gray and Felicia Hannah Dotch
    NO. 2016-CA-01530-SCT
    Supreme Court of Mississippi.
    January 11, 2018
    ATTORNEY FOR APPELLANTS: JOHN M. GILMORE, Durant
    ATTORNEY FOR APPELLEE: NO BRIEF FILED
    BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE, FOR THE COURT

¶ 1. Patrick Latrell Gray and Felecia Hannah Dotch petitioned the Attala County Chancery Court to allow Gray to adopt D.D.H. without terminating Dotch's parental rights. After consideration, the chancellor denied the petition. Aggrieved, Gray and Dotch appeal, arguing that their due-process and equal-protection rights were infringed.

¶ 2. After review, we reverse. The chancellor erred, as a matter of law, in finding that Mississippi Code Sections 93-17-3(4) and 93-17-13(2) (Supp. 2017) bar the adoption. As D.D.H.'s adoption by Gray is not barred by statute, it is unnecessary for this Court to perform a constitutional analysis of Sections 93-17-3(4) and 93-17-13(2).

STATEMENT OF FACTS

¶ 3. On August 21, 2003, Dotch gave birth to a daughter, D.D.H. Dotch and Gray have never been married, and only Dotch is listed on D.D.H.'s birth certificate. Near the time of D.D.H.'s conception, however, Dotch and Gray were in a romantic relationship, and both believed that Gray was D.D.H.'s father. Early in her life, D.D.H. lived with Gray and Gray's mother. When D.D.H. was old enough to attend school, she began to live with Dotch. During this time, Gray exercised visitation with D.D.H. and continued to provide financial support to her.

¶ 4. More than a decade after D.D.H's birth, Gray discovered that he was not her biological father. After this, Gray continued to visit and support D.D.H. The identity of D.D.H.'s biological father is not known. Currently, Gray and Dotch both are married to other people.

¶ 5. Upon discovering that Gray was not D.D.H.'s biological father, Gray and Dotch petitioned the Attala County Chancery Court to allow Gray to adopt D.D.H. In the petition, the parties requested that Gray be allowed to adopt D.D.H. and Dotch be allowed to retain "care, custody, and control" of D.D.H. Gray and Dotch claimed that the adoption was in D.D.H.'s best interest.

¶ 6. At a hearing on the petition, the chancellor denied the petition for adoption under Mississippi Code Sections 93-17-3(4) and 93-17-13(2). In denying the petition, the chancellor stated, "I think it may be [in] the child's best interest to be adopted. I think this statute ties my hands...." The order denying the petition (1) recognized that Gray had failed to join his wife, Shannon Gray, in the petition as required by Section 93-17-3(4), and (2) found that the petition's request that Dotch's parental rights not be terminated by the final decree was inconsistent with Section 93-17-13(2). The order also stated "that although the Court may agree that it would be in the best interest of the minor child sought to be adopted, this Court is bound by the legislative requirement as found in Mississippi 93-13-1, et seq. , and therefore, the Petition for Adoption, should be, and it hereby is, DENIED."

¶ 7. After denying the petition, the chancellor allowed an offer of proof. Dotch testified that D.D.H. was "very strongly attached to [Gray] because he's the only father that's been in her life and been doing for her." She also stated that "when [D.D.H.] was younger, she spent more time with [Gray and Gray's mother] than she did with me.... She cares a lot for him." Dotch also stated that Gray had always held himself out as D.D.H.'s father. Dotch maintained that she wanted to retain her parental rights after Gray's adoption of D.D.H. Gray testified that he had a "[g]ood" relationship with D.D.H. and that he had supported her financially since birth. Gray maintained that D.D.H. regularly visited him on two weekends out of each month. He also testified that his wife and D.D.H. "get along good [sic]."

¶ 8. Gray and Dotch both appeal the denial of the petition. On appeal, they maintain that Sections 93-17-3(4) and 93-17-13(2) violate their due-process rights under the United States and Mississippi Constitutions and their equal-protection rights under the United States Constitution. Gray and Dotch also assert that the denial of the petition violates D.D.H.'s equal-protection rights under the United States Constitution. Gray and Dotch properly served a copy of their brief on the Attorney General under Mississippi Rule of Appellate Procedure 44(a). M.R.A.P. 44(a). The deadline for the Attorney General to respond to the brief has passed. See M.R.A.P. 44(b).

STANDARD OF REVIEW

¶ 9. Statutory interpretation is a matter of law which we review de novo. 5K Farms, Inc. v. Mississippi Dep't of Revenue , 94 So.3d 221, 225 (Miss. 2012) (citing Ameristar Casino Vicksburg, Inc. v. Duckworth , 990 So.2d 758, 759 (Miss. 2008) ). Further, "[t]he constitutionality of a statute will not be determined unless absolutely necessary to determine the merits of the litigation in which the constitutional issue has been presented." Roberts v. Mississippi State Highway Comm'n , 309 So.2d 156, 160 (Miss. 1975).

ANALYSIS

¶ 10. Today, we need not reach the constitutional claims before us. Instead, we begin with an analysis of the plain-language meaning of the statutes at issue. As discussed below, this analysis will determine the merits of the appeal without violating any of the petitioners' constitutional rights.

I. The plain language of Sections 93-17-3 and 93-17-13 permits Gray to adopt D.D.H. without terminating Dotch's parental rights.

¶ 11. The Court's role "is not to decide what a statute should provide, but to determine what it does provide." Lawson v. Honeywell Int'l, Inc. , 75 So.3d 1024, 1027 (Miss. 2011). "If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction." Id. If a statute is "ambiguous or silent," statutory interpretation is warranted. Mississippi Methodist Hosp. & Rehab. Ctr., Inc. v. Mississippi Div. of Medicaid , 21 So.3d 600, 607 (Miss. 2009). When presented with statutes that are plain and unambiguous, the Court's directive is clear, "[T]he Legislature shall be deemed to have intended to mean what they have plainly expressed, and, consequently, no room is left for construction in the application of such a law." Wilson v. Yazoo & M.V.R. Co. , 192 Miss. 424, 6 So.2d 313, 314 (1942). " '[C]ourts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.' " 5K Farms, Inc. , 94 So.3d at 227 (quoting Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell , 216 Miss. 358, 62 So.2d 383, 385 (1953) ).

¶ 12. However, "the ultimate goal of this Court is to discern the legislative intent." Mississippi Methodist Hosp. & Rehab. Ctr., Inc. , 21 So.3d at 607. "To determine legislative intent, the Court first looks to the language of the statute." Lawson , 75 So.3d at 1027. "The intention and purpose of the Legislature is to be deduced from the whole and every part of the statute taken together-from the words and context-and such a construction adopted as will best effectuate the intention of the law-giver." Wilson , 6 So.2d at 314. Further, "the Court may also look to the statute's historical background, purpose, and objectives." Lawson , 75 So.3d at 1027.

A. Mississippi Code Section 93-17-3

¶ 13. The first section to consider is Section 93-17-3(4). Section 93-17-3(4) provides in pertinent part that "[a]ny person may be adopted in accordance with the provisions of this chapter in term-time or in vacation by an unmarried adult or by a married person whose spouse joins in the petition. " Miss. Code Ann. § 93-17-3(4) (emphasis added). The petitioners argue that Gray's wife should not have to join the petition, and the statute "limits the rights of a married person to adopt without his/her spouse being joined as a party to the adoption."

¶ 14. Section 93-17-3(4) sets out requirements for an adoption, detailing the jurisdiction and venue for adoption proceedings and detailing the petition's requirements-such as the joinder of both spouses when married and a doctor's or nurse practitioner's certificate of the health of the child.

Miss. Code Ann. § 93-17-3(4). The section also governs home studies for adoptions, changing the child's name, and additional considerations for jurisdiction. Id.

¶ 15. Section 93-17-3 is unambiguous. The requirements are clear, and we see no reason why they should not be followed in the instant case. Simply put, Gray's spouse must join him in his petition to adopt D.D.H. Miss. Code Ann. § 93-17-3(4). The plain language of Section 93-17-3(4) does not provide that the joinder of Gray's spouse means that she will receive any custodial or parental rights or that she is adopting the child. It requires only that she join in Gray's request.

¶ 16. In an adoption proceeding, the best interests of the child are paramount, and the Court reviews adoptions to ensure the chancellor considered the best interests of the child. In re Adoption of D.N.T. , 843 So.2d 690, 706 (Miss. 2003) ; In re Adoption of P.B.H. , 787 So.2d 1268, 1277 (Miss. 2001). The requirement to include the spouse on the adoption petition, even if the spouse is not the adopting party, enables the best interests of the child to be served. If the spouse is joined, the chancellor would then have the opportunity to consider and, if needed, question the spouse who regularly would be in the adopted child's life as a step-parent. Further, requiring the spouse to join provides the spouse notice of the adoption petition-as the final decree could possibly affect the spouse's rights and the inheritance rights of the spouse's children. Therefore, Section 97-13-3(4)'s requirement to include Gray's spouse in the adoption proceeding ensures that the best interests of D.D.H. are considered and should be followed in this case.

B. Mississippi Code Section 93-17-13

¶ 17. The second section before us is Section 93-17-13(2), which explains the effect of the final adoption decree. It states:

(2) The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child ; and its effect, unless otherwise specifically provided , shall be that (a) the child shall inherit from and through the adopting parents and shall likewise inherit from the other children of the adopting parents to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi, and that the adopting parents and their other children shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock; (b) the child and the adopting parents and adoptive kindred are vested with all of the rights, powers, duties and obligations, respectively, as if such child had been born to the adopting parents in lawful wedlock, including all rights existing by virtue of Section 11-7-13, Mississippi Code of 1972; provided, however, that inheritance by or from the adopted child shall be governed by paragraph (a) above; (c) that the name of the child shall be changed if desired; and (d) that the natural parents and natural kindred of the child shall not inherit by or through the child except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated , except as to a natural parent who is the spouse of the adopting parent. Nothing in this chapter shall restrict the right of any person to dispose of property under a last will and testament.

Miss. Code Ann. § 93-17-13(2) (emphasis added). The petitioners maintain that Section 93-17-13(2)"limits the rights of a natural parent to retain his/her parental rights and allow the adoption of a child by a person that has a meaningful relationship with that child."

¶ 18. Section 93-17-13(2) provides the general effect of the final adoption decree. Further, the first part of the statute notes the paramount concern in an adoption: the best interests of the child. It states that the final decree may contain "provisions as may be found by the court to be proper for the protection of the interests of the child...." Miss. Code Ann. § 93-17-13(2). It also states the effect of the final decree "unless otherwise specifically provided. " Id. (emphasis added). Thus, Section 93-17-13(2) makes it clear that the effect of the final adoption decree can be tailored by the chancellor if found to be in the child's best interest. The Court has addressed the discretion of a chancellor to modify a final adoption decree under the language of Section 93-17-13(2), and although the cases are not completely analogous factually, they provide guidance to the instant issue.

¶ 19. In Humphrey v. Pannell , 710 So.2d 392 (Miss. 1998), the grandparents of a child successfully adopted the child. Subsequently, more than five years after the adoption, the parental rights of the natural father, Larry Joe Humphrey, were recognized and considered not terminated by the decree. Id. at 399. Two years later, Humphrey filed a complaint to set aside the adoption of the child by the grandparents and to modify custody of the child. Id. at 394. The chancellor denied the motion to set aside the adoption and to modify the custody. Id. at 395. Humphrey appealed. Id. The Court affirmed. Id. at 401.

¶ 20. First, it upheld the chancellor's refusal to set aside the adoption. Id. at 398. The Court then analyzed the modification of custody under the material-change-of-circumstances standard. Id. at 399-400. Noting the unique factual scenario, where the child had been adopted but the natural father had retained his parental rights, the Court stated that Humphrey's retainment of "all of his parental rights" would render the adoption meaningless. Id. at 399 (emphasis in original). The Court then concluded that, under a material-change-of-circumstances standard, Humphrey could divest the grandparents of custody of their adopted child which "comes dangerously close to terminating the Pannells' parental rights on the basis of a preponderance of the evidence standard which was rejected by this Court, the Legislature, and the U.S. Supreme Court." Id. at 399. In support of this conclusion, the Court then turned to the permanence of adoption, and it dubbed the adoption at issue a "quasi-adoption" due to Humphrey's retainment of his parental rights. Id. at 400.

¶ 21. The Court then considered the "unless otherwise specifically provided" language of Section 93-17-13(2). Id. at 399-400. It stated that in some states that language allows post-adoption visitation, which differs from a quasi-adoption. Id. at 400. It concluded that Section 93-17-13(2)

was not intended by the Legislature to grant a natural parent the right to weaken the legal bonds of the adoptive parent-child relationship by reserving the right to, in effect, sit and wait for the circumstances of the adoptive family to materially change and then divest the adoptive family of custody.

Id. In other words, the "unless otherwise specifically provided" language does not extend to allow a "quasi-adoption" wherein a child is adopted-in Humphrey by her grandparents-and the father retains all of his parental rights. The Court then held that although the agreed decree granting Humphrey parental rights was upheld, Humphrey was entitled only to visitation. Id. at 401. In short, he could not succeed in a custody battle.

¶ 22. Three years after Humphrey , the Court upheld a "joint adoption" or a nontraditional adoption. In re Adoption of P.B.H. , 787 So.2d 1268, 1274 (Miss. 2001). In In re P.B.H. , the maternal grandparents filed for adoption of the child, and the mother's former cohabitant, Jeff, also filed for adoption of the child. Id. at 1270. Jeff had believed he was the father of the child for three years after the child's birth. Id. When Jeff filed his petition for adoption, he attached a consent and relinquishment of rights signed by the biological father. Id. at 1271. The chancellor granted the adoption to the grandmother, Lori, and to Jeff. Id. On appeal, the Court stated that the adoption satisfied the statutory requirements; therefore, it viewed the adoption through the lens of whether it was in the best interests of the child. Id. at 1273. The Court upheld the chancellor's decision, noting the language quoted by the chancellor in his decree, "[N]ot all adoptions are 'traditional.' The chancellor is in the best position to assess this question with respect to each adoption on a case by case basis." Id. at 1275 (quoting Humphrey , 710 So.2d at 402 ) (Banks, J., concurring in part and dissenting in part).

¶ 23. In 2002, the Court again spoke on the "unless otherwise specifically provided" language. The Court held, citing Humphrey as guidance, that "unless otherwise specifically provided" does not allow for post-adoption visitation. In re Adoption of J.E.B. , 822 So.2d 949, 953 (Miss. 2002).

¶ 24. Although none of the above-cited cases speaks to the issue in the instant case, the three cases provide us with some guidance. Under Humphrey , the "unless otherwise specifically provided" language does not allow a "quasi-adoption," wherein a third party, aside from someone adopting as the mother and someone adopting as the father , retains all his parental rights. See Humphrey , 710 So.2d at 401. In In re P.B.H. , the best interests of the child allowed a joint adoption or a nontraditional adoption between someone adopting as the mother and someone adopting as the father. In re P.B.H. , 787 So.2d at 1275. Notably, in In re P.B.H. , although the grandfather filed for adoption, adoption was not granted to him. Id. at 1270. Subsequently, under In re J.E.B. , the "unless otherwise specifically provided language" was limited as not allowing post-adoption visitation. In re J.E.B. , 822 So.2d at 953.

¶ 25. Here, Gray is seeking to adopt as the father , and Dotch seeks to keep her natural parental rights as the mother. Therefore, Humphrey is distinguishable. Here, there is no third party; therefore, there is no quasi-adoption by a third party to the adoption seeking to exercise his or her natural parental rights at the expense of the adopting mother and father. Further, unlike In re J.E.B. , there is no third party seeking post-adoption visitation rights.

¶ 26. The instant adoption is more in line with the holding in In re P.B.H. If determined by the chancellor to be in best interests of the child, the instant adoption would be joint and nontraditional with Gray adopting as the father and the natural mother retaining her rights as the mother. Further, as shown by In re P.B.H. , Section 93-17-13(2) does not prevent the adoption. In fact, Section 93-17-13(2) grants the chancellor the authority to grant the adoption by noting the importance of the best interests of the child and by providing "unless otherwise specifically provided." See Miss. Code Ann. § 93-17-13(2).

¶ 27. Gray has been in D.D.H.'s life since her birth, acting as a natural parent and providing support and care for her. Even upon learning that he was not the natural father, Gray continued to fulfill the role of father in her life. As such, he has been acting "in loco parentis." Griffith v. Pell , 881 So.2d 184, 186 n.1 (Miss. 2004) ("A person acting in loco parentis is one who has assumed the status and obligations of a parent without a formal adoption."). Further, the chancellor noted in the record that the adoption "could be [in] the best interests of the child" and later that it "may be [in] the child's best interest."

¶ 28. Under the facts of the instant case, if the chancellor-on remand-makes a finding that the adoption is in the best interests of D.D.H., the "otherwise specifically stated" language of Section 93-17-13(2) allows Gray to adopt the child and allows Dotch to keep her parental rights. Our holding is narrowly tailored to the following facts: (1) Gray has acted in loco parentis; (2) he is seeking to adopt and would be adopting as the father; (3) he is seeking to raise the child in concert with Dotch, the natural mother; (4) his spouse will be joined to the proceeding, and (5) there are no third parties to the adoption seeking to keep parental rights.

¶ 29. Further, our holding is based upon the ultimate goal of the Court in adoption proceedings to keep the best interests of the child in the forefront. As we have recognized in the past, "[n]ot all adoptions are 'traditional.' The chancellor is in the best position to assess this question with respect to each adoption on a case by case basis." In re P.B.H. , 787 So.2d at 1275.

¶ 30. This is the situation that we, as a Court, hope to see: a child who has a nonbiological father who has continued to care for her-despite his knowledge of the lack of biological kinship-and now wishes to recognize legally his bond with his daughter. We have stated: "[P]arental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child where the parent assumes responsibility for the child's emotional and financial needs." Griffith , 881 So.2d at 186-87.

II. Because Sections 93-17-3 and 93-17-13 allow the adoption, it is unnecessary to consider the petitioners' constitutional claims.

¶ 31. "The constitutionality of a statute will not be determined unless absolutely necessary to determine the merits of the litigation in which the constitutional issue has been presented." Roberts , 309 So.2d at 160. See W. Line Consol. Sch. Dist. v. Greenville Mun. Separate Sch. Dist. , 433 So.2d 954, 957 (Miss. 1983) ("[I]f it is not necessary to rule upon the constitutionality of a statute, it is necessary that a court not rule upon it."); Mitchell v. State , 240 Miss. 308, 127 So.2d 394, 394 (1961) ; Town of Flora v. Am. Express Co. , 92 Miss. 66, 45 So. 149, 150 (1907) ; Hendricks v. State , 79 Miss. 368, 30 So. 708, 709 (1901) ; Adams v. Capital State Bank , 74 Miss. 307, 20 So. 881, 882 (1896) (noting that the Court is "constrained by our sense of duty to deny" a request to decide a constitutional question that is unnecessary to the resolution of the litigation).

¶ 32. Further, there is a strong presumption that legislative enactments are valid and constitutional. State ex rel. Hood v. Louisville Tire Ctr., Inc. , 55 So.3d 1068, 1072 (Miss. 2011) ("[W]e will strike down a statute only when it appears beyond a reasonable doubt that it violates the constitution"). "Legislatures are the voice of the people, charged with the responsibility of enacting statutes for the inhabitants of our State. They are a separate and coequal branch of our three-part government: Executive, Legislative, and Judiciary." W. Line Consol. Sch. Dist. , 433 So.2d at 957-58. Indeed, "legislators ... take[ ] the same oath as have we to uphold and support the Constitution." Burrell v. Mississippi State Tax Comm'n , 536 So.2d 848, 858 (Miss. 1988), overruled on other grounds by Commonwealth Brands, Inc. v. Morgan , 110 So.3d 752 (Miss. 2013).

¶ 33. Because the Court turns to constitutional issues only when necessary, we choose not to address them today. If the chancellor finds the adoption to be in the best interests of D.D.H, Section 93-17-3(4) enables Gray's wife to join the petition, and Section 93-17-13(2) grants the chancellor authority to permit D.D.H.'s adoption by Gray without terminating Dotch's parental rights. Given that none of the petitioners' constitutional rights will be infringed, a constitutional analysis is not merited.

CONCLUSION

¶ 34. Upon remand, Gray's spouse must join the petition for adoption, in writing, pursuant to Section 93-17-3(4). After she does so, if the chancellor finds the adoption to be in the best interests of D.D.H, Section 93-17-13(2) enables him to grant the petition for adoption and issue a final decree that does not terminate Dotch's parental rights. Thus, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

¶ 35. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND ISHEE, JJ., CONCUR.

      The chancellor recognized that "the unknown natural father was served in the manner required by law and was called in open court and did not appear."

      Gray's wife would merely assume the role of step-parent.

      The father was aware of the adoption within months of its occurrence, but contested the adoption only five years later. Humphrey , 710 So.2d at 392.

      The mother had passed away. In re P.B.H. , 787 So.2d at 1270.

      Also, "[a]ny person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child is said to stand in loco parentis." Griffith , 881 So.2d at 186 n.1 (internal quotation omitted).

      We also note that the biological father was properly served and failed to exercise his rights. The chancellor found that "the unknown natural father was served in the manner required by law and was called in open court and did not appear."