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HOLMAN v. MCMULLAN TRUCKING11/8/1996
Spencer Wayne "Bud" Holman was employed by McMullan Trucking ("McMullan") as a truck driver. In the early morning hours of July 7, 1994, he; his nine-year-old son Spencer Blake Holman ("Blake Holman"); and a family friend, Larry Morrow, were in a truck owned by McMullan when that truck ran off the road near Mount Pleasant, Tennessee. These three were the only occupants; all three were killed in this single-vehicle accident. Cynthia Holman, the mother of Blake Holman and wife of Bud Holman, filed a wrongful death action, based on her son's death, against McMullan, alleging
that her son's death was the result of negligent or wanton operation of the truck owned by McMullan. McMullan filed a motion for summary judgment, which was granted by the trial court. Cynthia Holman appeals from the summary judgment. We affirm.
To support a motion for summary judgment, the movant must make a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Thompson v. Real Estate Financing, Inc., 589 So.2d 722 (Ala. 1991). The burden then shifts to the nonmovant to present substantial evidence creating such an issue of fact or to show that the movant is not entitled to a judgment as a matter of law. Thompson, supra.
The following facts are undisputed: On July 5, 1994, McMullan dispatched Bud Holman to pick up a load in Florence that was to be delivered in Pontiac, Illinois . On this trip, Bud Holman was accompanied by his son Blake and by Morrow. After Bud Holman delivered the load in Illinois, McMullan then dispatched him to his next job in Cullman. It was on the trip to Cullman that the fatal wreck occurred. There were no eyewitnesses, but it appears that at about 3:30 a.m. on July 7, the truck ran off the roadway, hit a guardrail and a telephone pole, struck the Big Bigby Creek Bridge, and overturned into the creek.
There is some debate as to whether Bud Holman or Larry Morrow was driving the truck at the time of the accident. There was evidence that Bud Holman had become ill and that Morrow, who had not been hired by McMullan and who was not qualified to operate such a vehicle, had been driving at a time several hours before the time of the accident. To show that Bud Holman was driving, Cynthia Holman offered the deposition testimony of Wayne Sellers, a state trooper who investigated the accident. Sellers concluded that Bud Holman had been driving, based on Holman's status as an employee of McMullan and based on Sellers's observation of entries in a log book maintained by Bud Holman. While the identity of the driver is uncertain, there, nevertheless, is no issue of material fact that would require submission to a jury. Thus, the summary judgment in favor of McMullan was proper regardless of whether Bud Holman or Morrow was driving at the time of the wreck.
Both sides agree that Alabama choice of law doctrine requires that the substantive rights of an injured party be determined according to the law of the state where the injury occurred. Etheredge v. Genie Industries, Inc., 632 So.2d 1324 (Ala. 1994). The law of the forum, Alabama, governs questions deemed "procedural" in nature. Id. Because the injuries that caused Blake Holman's death occurred in Tennessee, we must apply the law of Tennessee to the substantive issues in this case to determine whether the summary judgment was correct.
In its summary judgment order, the trial court addressed only the issue whether, under Tennessee law, Cynthia Holman's claim was barred if Bud Holman, her husband, was at fault for their son's death. That order stated, in relevant part: " he plaintiff alleges in her complaint that the death
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