welcome to the th circuit we're ready to hear argument in our st case edwards versus cardinal transport mr fitzgerald whenever you're ready write it may please the court matt fitzgerald on behalf of cardinal transport the question in this case is whether cardinal a motor carrier is liable for injuries caused by danny  an owner operator who least as trucks to cardinal the incident happened in mcgowan's private truck yards where he was maneuvering a forklift near a parked trailer attempting to load a one ton metal rod onto the ultimately slipped and fell crushing the plaintiff mr edwards foot at trial the question came down to whether mcgowan was an employee of cardinal and the trial court wrongly instructed the section c one says essentially that a motor carrier controls the equipment for the duration of the lease and bears complete responsibility for its operation or one of the arguments that opposing counsel makes is that even if you are correct on the on the law with regard to these two paragraphs and subsection see that you should have asked for a special verdict form as opposed to a general verdict form so what's your answer to that up a couple of answers your honor so st i note that the judge pointed out that he wouldn't have accepted a special verdict form even if anyone had asked for it and so any such request would have been futile how my believe that's at page five  joint appendix but secondly it really isn't the error the error is not what's in the jury form the error is the instructions in other words the error is not whether it's a detailed or a general jury form the errors the instructions given to the jury the problem is i think the jury was also instructed on the state law requirements for showing an employment relationship and you don't contest that there was sufficient evidence to show  state law right well we do your honor on the scope of employment point which is the right a separate argument not the relationship there was enough evidence under state law to show an employment relationship we think the only  lies we haven't argued otherwise and but i will say that the prejudice from the presumption in the jury instruction we believe affected you know whichever way that the jury went here because after all the jury is told a presumption or the jury is told there is a regulation c one that says the motor carrier controls and then it goes on and provides the rebuttable presumption but on the very next page even where the jury may have been looking at the common law pass it talks about the element of control and so the jury should have been told that regardless of the path that they went prejudiced to satisfy that i would have thought and i think the judge in this case instructed the jury that if they found that they did not bind the rebuttable presumption then they could proceed to the common law definition of the relationship is that right well it said two paths i'm not sure i don't think it said you have to consider the rebuttable presumption st but it was ordered  because the way that i read the jury instructions being told that there is a regulation c one that says the motor carrier controls itself sort of poisons those instructions even under the common law passed isn't  relevant under the common law passed i don't understand why i mean it under common law you look at all of the agreements between the two parties and one of them is the agreement that's required by the regulation and in the lease i don't understand how that poisons any how well it does your honor because section c four of the regulations says quote nothing in c one is intended to affect the employment status and so you're saying forget the presumption this somehow preempt state law to the extent that state law would say we look at all of the agreements between these two parties you're saying that's before preempt state law you can't look at the lease agreement not that you can't look at the lease agreement in general but question of preemption your honor because after all if you only looked at the lease agreement which i think is on page one hundred and ten of the joint appendix the relevant part of that is it has right in the agreement a tip of the cap to see for as well and it says this section is not intended to show employment status and so even if you were just looking at the agreement itself you would say well they've agreed that this particular provision isn't for employment status so and so nail the plaintiff has to proceed slowly under west virginia common law is the regulation and presume compliance with  regulation is that in your view miscible in the common law case i think it's not your honor and the reason the reason why it's not is section c four says that the provisions required by c one are not intended to affect the status at all and so using them is allowing them to have that effect and i want to cases saying that i've seen some cases addressing argument and coming out the other way are there any cases coming up this way your honor i think the cases are hernandez and universal amp and that discuss this i think that those cases set aside evidence of compliance with that particular regulation when they're looking at the common law test for employment and control oh so we have here also the interstate commerce commission which has been very clear and very broad a minute just even before it added section c four to the regulations that we repeat that our rules are not intended to influence in any fashion a court's liability determination the interstate commerce commission believe that state tort law adequate to this purpose and that but that seems to run counter to the congressional objective in passing the statute to begin with right the congress determined that in fact carriers are carriers in fact were  responsibility under state tort law no your honor i think what congress recognize is that the concern was motor carriers evading compliance with the federal safety regulations themselves why did congress write the statute so that it says under a four the lease provision can require that you have control of him be responsible for operating the motor vehicles in compliance with requirements prescribed by the secretary so the regulations and with other just stop after requirements prescribed by the secretary your honor i don't know for sure but i have i have hunted for four other applicable law and places that say that is a reference to state tort law and i  reading of the statute renders and without the replicable law superfluous no i don't think so it could refer for instance to state regulatory law that exists i'm just not sure that other a political law is is the right way that congress would have used to tap into this entire regime of state tort law right but i'm not sure that if what congress meant was we care about holding these carriers libel the carious lee for violations of requirements for sky by the secretary and safety of operations and equipment if that's what they cared about i don't understand why anything would follow that phrase so i think your understanding that this is all about the carious liability under federal regulatory requirements is inconsistent with the statute well your honor again even if that view were correct that's the authorizing statute and so it's authorizes the secretary to make these regulations and so then we turn to the regulations and there is what we as where we find see one and see for i mean see for specifically saying that c one is not intended to even affect employment status so perhaps even if the secretary were allowed to go more broadly and say make a does is it ensures regulatory controls so in other words and i think it's good to look back to the problem that they were trying to solve when they created c one which was long before c four the issue was that there were truck on the road and it was difficult to connect those trucks to the motor carriers that they were affiliated with leases would be negotiated sometimes for only one trip or even for part of a trip they would be negotiated retroactively and so there were these shifting sands when they would find a truck on the road in violation of a new safety regulation it wouldn't be easy to hook that to the motor carrier and what c one is saying is the motor carriers are accountable for compliance with the federal safety regulations and when a truck or truck or on the road is found in violation and we go to the motor carrier and see one as part of a set of regulations that all sort of went that what some of those some other regulations that are in there as well say the leases have to last a certain amount of time they can't just be these one trip type lisa's and so kind of points in that direction we have also further statements from the interstate one and i'm sorry and i and then i will stop i really am struggling with the regulation in the statute and i'm hoping you can help so if i see one says nothing about the relationship between the carrier and the owner operator how does it provide for carious liability even under federal regulations i'm not sure i'd call it vicarious liability your honor but it provides that when the regulators find a truck in violation or a trucker in violation of these thick set of regulations that govern all trucks on the road that the motor carrier that's affiliated with that is responsible so they're subject to remove since i don't that totally affects the relationship otherwise they wouldn't be it i just i guess i still don't understand how you can what well maybe your honor but one can do anything if what's the forum means is it doesn't affect in any way you were just reading the language it totally neutral as to the relationship between these two parties it and i think the answer your honor is it's totally neutral as to the employee versus independent contractor distinction so for instance if a truck on the road is found say overweight and the regulators go to the motor carrier it won't matter whether the driver is an independent contractor or an employee but under the facts of these case this case the way that this liability is flowing it does matter and so that's why c four is so operative here but see one still has a role to play prejudice in this case is also clear under harwood as in harwood there are two paths that the jury could have taken to find liability we cannot be certain which path that they took and in fact here even more so than in harwood the two paths are parallel and similar to each other so much that the incorrect legal jury instruction essentially poisoned them both but in any event harwood makes clear that a new trial is warranted on that point nor is there any basis for limiting section c four to workers compensation there is no textual hook for doing that and and really in the workers compensation context it's exactly the same question as posed in state tort is the person the driver often an employee or an independent contractor and it doesn't make sense to decide that exact same question differently based on who is asking the courts if they're no further questions save the rest of my time and stand on my briefs as to the other start with the issue do we would we have needed to be here had there been a had there been a better jury verdict form  let's start with the idea st of all that the instruction itself the language of the instruction itself even if you if you conclude that the defendant adequately preserve the  regulation the text of the instruction was agreed to so the instruction of the court read they said given you know given what you've ruled we agree this is how the jury should be instruction then neither party tendered to the court a verdict form that's that separated out the statutory liability from the comp west virginia common law liability counsel for the defend it has made reference to two language in the in the record that says that the court said he would give the instruction what the court said was that nobody tended it nor would be i'd be inclined to use a special iraq a two way form that would require the jury to go through each of those steps and answer now there's no indication from the court you don't know what the court would have done had you not asked and had you asked and it been turned down then you have appeal where but there's no indication that the court wouldn't have been inclined to say we're going to separate these two cli that is the instruction if you look at the instruction that was given it was more than are they liable because of the statute are they liable because of the common law there were st there were requirements of finding different factors under those things and  d the jury instructions about the relationship between the two parties so you can do so in one of two ways st and it describes a regular tory provision nd a common law provision so you clearly have two different steps that you could go through and within each of those steps there are several findings the jury had to make to make them all and i and when i read the court the court comment which was made in the context of a request nobody nobody made as being i'm not going to go through a long during forum with all of those different steps so what's the what's the argument you're making i mean clearly the appellant preserved the regulatory objection and so they are going to share i'm sorry are you suggesting that they had to go ahead in fact make that request in light of the preserve of jackson i'm suggesting that in the absence of requesting the separate special jury verdict form when there is a general verdict form and there statutory table that was placed into a jury instruction to in order to prove negs comparative negligence the court said that was error to put the table as an instruction but there was sufficient other evidence to allow a jury to conclude that the party was contributory negligence the nd analogous situation and then a gentle bird yes it was a general verdict and that it was had given the general for accordion references that it was a general verdict and the nd case the nd case which it's in and there was an objection to the instruction not objection to the instruction was there an objection to the ruling of the court on a matter of law as to the foundation for the instruction which is what happened here i don't believe so your honor i think it was but i'm not sure that is a distinction that matters because the question is is it fair to  tell the situation it's analogous is an error to tell the jury something and court said it was but there are still plenty of evidence on the alternate claim to allow the jury to go the harwood case that the defendant cites distinguishable that was talking about two very separate forms of liability it was not it was seaworthiness and i'm not a admiralty expert but there were two very different forms of liability as opposed to in this case where we have the same vicarious liability claim that's being decided under state law and just two different paths to get there the other analogous case law would  proof which to my way of looking at it would make it a much more difficult case to prove actually if you as judge chambers found the the to pass are complementary under west virginia law in order to make this showing there that the plaintiffs st has a pass to make a promise faces showing of the elements of the elements of control at that point the burden then shifts to the defendants to refute that so in this case there is no question denied summary judgment there was no question there was sufficient evidence for the plaintiffs to make that promise showing the burden then would have been on the defense i mean the court could have written instruction this way the court has found that the pla made a promise faces showing that the that edwards was an employee the burden is on the defendants to refute that by showing x y c fundamental step in the beginning which is the plane of support so and may or may not have any relationship to all the common law elements that there was an engagement there was compensation of pay there was a power in one party over the other and that  power was a power of control i mean those those are factors that are very different from just showing well there was a lease and lease was operative at the time so they may be two ways to get at the same underlying legal principle but i think you have a difficult time saying that they are factually the same thing and i'm not suggesting factually they're saying the same thing i'm saying under the facts of this case the evidence is sufficient to allow the court to have concluded that the point that the plaintiff's additional burden is very slight he only has to make prime aphasia showing all of the evidence undisputed in the record is sufficient to me to allow the court to conclude that burden has been met then the burden shifts to the defendant under the common law test and so the defendants would have been in the same position they were  n under the regulation early i mean if the jury didn't believe the evidence with respect to the common law establishing the common law relationship then which is different evidence from the federal regulatory relationship then that would make a significant difference well i would suggest your honor that that the evidence regarding those factors was not in dispute that would have been error for the if the jury hadn't believed that and especially given that the standard is not that the jury has to find those things the standard to have the burden shifting is that the plaintiff just has to make a prime official case that those factors they just wrong in my view well st of all the i think the parties have agreed agreed that the post ninety two judge chambers  majority rule the two circuits that ruled otherwise did suffer in context one was in workers comp and the other is in in whether or not somebody is an insured and i would suggest those are why we we believe the regulation was changed to deal with those contacts the the interstate commerce commission in looking at the in explaining what the problem was talks about employment agencies workers compensation commission and courts and they but they do so starting with the premise that most of the courts have gotten it right and the vast majority rule at that time and this time was that that liability was there and in some places decide worker's comp place cases or i think the purpose of the c for regulation is to result of the issue of employee status in the relationship between the employer and the employee not that not a rd party and some of the case law makes that clear even even the case law that is referenced by the defendant and the for example the hernandez court cites the pennsylvania pennsylvania case relied on by the defendant sites of pennsylvania case universal and can vs workers compensation appeal board in that in that case  what the what the court said the trucking company in that point it's appropriate to say we're going to let you we're going to maybe give you when you're deciding the financial relationships which don't have anything to do with safety it who pays workers comp doesn't have anything to do a safety whether you're an employee for purposes of an insurance policy doesn't have anything to do with safety but the one the c one situation which is which i but we believe as judge chambers found it gets read out the safety purposes if you say see for says that it doesn't have any impact then those are important when you deal both with the regulatory aspects as the defendants say and with with respect to responsibilities to  parties who may be entered to take a step back and look at the language of these regulations so if i were a legislator or a regulator it might well make sense to create this rebuttable presumption in order to sort of devise a compromise between regulatory oversight and respect for state common law respect to employer employee liability of a keris liability except or and so as i understand it c one the original state regulatory provision led courts to conclude one of two things either there was an era but a will presumption or there was strict liability so you get c four into the mix and it seems to me that if in fact the regulators intended to create this rebuttable presumption they went about it in a very strange way and you're asking us t sort of divine from this rather a pig language and essentially rewrite the the regulations to effect this rebuttable presumption what is the authority for doing that well i think if you read the authority for doing that is the general doctrine that you shouldn't interpret statutes and regulations in a manner that that and that are inconsistent and so see for what is inconsistent with interpret it in the way that your colleague on the other side suggests and that is that there's the division between the regulatory book that he pointed to in the regulations that have nothing to do with tort liability and the other side of the ledger which is tort liability well first of all you have may  which which i think it was something that was significant to judge judge chambers and so you're dealing with the situation where you still can have these employee poor employer employee relationships you also are dealing with a show control are relevant under the state law test at least in west virginia in terms of determining employee employer status for tort liability so in in a case where you have where you have to resolve that you have to decide are we and then rd point i would make is that you have the statute itself which has a very which governs over the regulations and has a very strong preference the trucking company to comply with other other applicable law as if they as if they were the owner so when you read all three of those together you have to decide how are we going to how are we going to how we're going to figure this out i think the courts could also have concluded given the legislative history behind the regulation that the regulation has nothing to do with tort liability and that would be one reading that that the original reg their original readings that said that you're going to be liable were are still possible readings afterwards because the regulations are going to cut you off sure a little lost as to what  answer a judge vs this question what purpose to see one hand of in your see one has the purpose of require the carrier to assume complete responsibility for the operation of the equipment during the duration of the lease have it's the one requires the carrier to have exclusive possession control and use of the qui think somewhere along the line that their reading of c four rendered c one superfluous so they responded said no that's not correct there is a purpose for c one and it safety regulation i'm not remembering that you ever responded to that argue i don't think we got to because i think my memory is that that argument st appeared in the reply but the answer to that  twenty eight through thirty of their opening then i'm mistaken but the i think the answer to that is that it's a purple it's a perfect list because because you have to do you know and as judge chambers them because the other i think you're reading out the other a political law the it's it's not just regulations and regulations why do we have regulations regulations are for safety and that's what judge chambers found which we agree with so if the other a political law even if you consider that the state law so there was a west virginia statute that says that instead of being in a regulation that the driver had to stop every four hours and that was i was a state law it wasn't some sort of regulatory matter what does that have to do with common law in negligence the question isn't what the regulation is the but how does common law negligence or common law employment employee relationship how was that other a political will law under that under the terms of  so if that were a case coming up in a tort case if we had a driver that fell asleep i mean the you would have the other pick up a law for it to be relevant in a tort case would have to be something that was caught had a causal relationship with the with the injury  if you i don't interpret other a whole lot to be the relationships that lead to vicarious liability and and see one then all of the case law prior to ninety two amendments i mean it see one never changed see one has been consistently interpreted to cause that employment relationship before the ninety two alleged regulations the question is what does c four take away from the prior view our position is it was designed to deal with worker's comp insurance and those who are employee employer relationships that are financial not safety whether the safety is regulations or whether the safety is compliance with tort law me like sure under understood correctly or do i understand that you do not contest that the evidence is sufficient under the common law relationship to establish to establish that liability well no your honor so we think that the presence of the regulation in the jury instructions made error out of the whatever path the jury went and we think that properly instructed the jury would have concluded that the plaintiff failed to carry its burden to show the prima facia case of employment for failure of control slightly different in answer to a slightly different question putting to one side the jury instruction on just on the undisputed facts in this case that the text of the the other agreements put to one side the least language if you want i mean did you ever say that that is not sufficient evidence to show the employment relationship under state law i'm sorry your honor what what wouldn't be sufficient there the other two agreements one of which incorporates that guidebook or whatever oh so so under state tort law the proper analysis would be who controlled the process of the work at some point did you argue the evidence is insufficient to show liability under state law and not to show the employment relationship under law is that an argument you have preserved somewhere in this case no you're ok so but but the key is the jury instructions so there were four elements that were required to be proven to show a common law relationship and you were you did not contest that those four elements were shunned by the player well know your honor the whole trial we contested the control element the st three were on contested  but the but the trial was about the control element whether whether it was and so that's that's what the evidence was brought on to show that the control was absent that you didn't but you thought you should win but it's not that the evidence was so insufficient that when that had the jury will i mean you never so so it's fair to say what the judge said which is of the issue of control at the end of the trial he said this was hotly contested and he didn't go either way as a matter of law that and so what we're saying is the jury instructions pushed the jury into the wrong conclusion on that and that if they were instructed without the regulation they would have concluded that the plaintiff failed  i'm to show control in that st instance cancer question what if when i look at the evidence the undisputed evidence and i don't have the names in front of me but those other two agreements one of which incorporated a rd one it looks to me like it's really hard for me to imagine a reasonable jury finding the plaintiff hadn't met just the primal facie case for showing an employment relationship i mean just based on those agreements there's a lot of control here not which way it would come out but that the prime if he she had been met then watch it i do i still think your honor that under that case if you are satisfied that everything was even if you're element yes we did that was a significant i'm sorry my time's up and i thought that was a significant issue in the trial and we believe that the plaintiff without the impact of this being told so they were told under the regulation the motor carrier controls and then even if they're going the common law path the next thing on the very next page they encounter is that they're asked who has the control of the process of the work and so we think that the presence of that regulation in there sort of poison that path and influenced your honor to the prima facie case which we contested at the trial so but so i think your answer is that you know my premise is wrong  instructions and there's a significant risk that it affected the jury verdict we would reverse but if i think look with or without this error you're complaining of the jury was going to find you hadn't at least met the prim those other three agreements that there's a lot of evidence of control there this isn't like a case where what kind of a crazy jerk jury could ever find an employment relationship under state law it was a hotly contested case for control that we but there is evidence also of the of it's clear that even if you think everything would have been ok along one path if the other path has a legal error a misstatement of law in it which is true here and it cannot be determined which way jury went that