IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MARK BOYLE and )

TERESA BOYLE, )

 )

Plaintiffs, )

)

v. )

) No. 3:13-CV-732

INFRASOURCE CONSTRUCTION, )

LLC, et al., )

 )

Defendants. )

OPINION AND ORDER

This matter is before the Court on: (1) Defendants’ Motion

for Partial Summary Judgment, filed by Defendants, InfraSource

Construction, LLC f/k/a InfraSource Underground Construction, LLC

and Peter L. Anthony, on June 30, 2014 (DE #19); and (2)

Defendants’ Motion to Strike, filed by Defendants, InfraSource

Construction, LLC f/k/a InfraSource Underground Construction, LLC

and Peter L. Anthony, on August 12, 2014 (DE #24). For the

reasons set forth below, Defendants’ Motion for Partial Summary

Judgment (DE #19) is GRANTED. The Clerk is hereby ORDERED to

DISMISS Count III of the complaint for punitive damages WITH

PREJUDICE. The remaining claims in Plaintiffs’ Complaint REMAIN

PENDING. Additionally, Defendants’ Motion to Strike (DE #24) is

GRANTED. The Clerk is ORDERED to STRIKE the Minnesota Department

of Public Safety’s driving record for Anthony (attached to
Plaintiffs’ Appendix of Exhibits in Opposition to Motion for

Partial Summary Judgment as DE #23-4) from the record.

BACKGROUND

Plaintiffs, Mark and Teresa Boyle, filed a complaint on July

23, 2013 (DE #1). They allege Peter L. Anthony (“Anthony”) was

en employee of Quanta Services, Inc. (Compl., DE #1, ¶ 4.) 

While operating a pickup truck leased to InfraSource

Construction, LLC (“InfraSource”), Plaintiffs allege Anthony

ignored, disregarded or otherwise failed to completely obey a

stop sign controlling the intersection at Rose Road and Old

Lincoln Highway in Plymouth, Marshall County, Indiana, and

collided with Teresa Boyle’s vehicle, causing her significant

injuries. (Id., ¶¶ 17-19.) 

Defendants, InfraSource Construction, LLC f/k/a InfraSource

Underground Construction, LLC (hereinafter “InfraSource”) and

Peter L. Anthony, filed the instant Motion for Partial Summary

Judgment on June 30, 2014. Defendants contend summary judgment

is warranted on Plaintiff’s claims for punitive damages in Count

III because Plaintiffs have failed to provide evidence of grossly

negligent conduct by Anthony that was not the result of a

mistake, mere negligence, or other human failing. (DE #19, p.

1.) Plaintiffs filed a Brief in Opposition to the Motion for

Partial Summary Judgement on July 29, 2014 (DE #22). Defendants

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then filed a Reply Brief on August 12, 2014 (DE #25).

Consequently, this motion is fully briefed and ready for

adjudication.

The Defendants also filed a Motion to Strike the Minnesota

Department of Public Safety’s driving record for Anthony attached

to Plaintiffs’ Appendix of Exhibits in Opposition to Motion for

Partial Summary Judgment (DE #23-4), arguing that this is

impermissible character evidence, which is barred by Rule 404(b).

(DE #24).

Undisputed Facts

On August 5, 2011, Anthony arrived at InfraSource’s Marshall

County worksite in his assigned company vehicle. (Anthony Dep.,

pp. 20, 23, 28.) He later realized that his work required chestwaders that he left in his trailer, causing him to drive back to

retrieve them. (Id., p. 23.) Anthony’s assigned truck was

holding the tools necessary for other laborers to conduct their

work, so Anthony received permission from his supervisor to use a

different company-owned 2011 Ford F-250 pickup truck to leave and

retrieve his chest-waders. (Id., pp. 28-29.)

At around 7:20 a.m., Anthony was traveling northbound on

Rose Road near the intersection with Lincoln Highway when he

approached a stop sign. (Compl. ¶ 17.) At the same time, Teresa

Boyle was operating a 2008 Chrysler Town & Country minivan

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westbound on the two-lane Lincoln Highway, also approaching the

intersection. (Id., ¶ 16.) According to Anthony, as he

approached Lincoln Highway, he “stopped at the stop sign” and as

a result of a tree impeding his view, he moved forward a few

additional feet so he could see the road before coming to a

second complete stop. (Anthony Dep., p. 29.) Then, at some

point while they were both moving through the intersection, there

was a collision that brought both vehicles to a complete stop. 

(Compl. ¶ 19.) 

In contrast, according to Boyle, she watched Anthony and

another truck “roll” the stop sign. (Boyle Dep., pp. 54, 58-9.) 

The first truck turned east on Lincoln Highway without incident,

but the second truck, Anthony’s vehicle, proceeded directly into

her lane of travel and collided with her minivan. (Id.) Boyle

claims Anthony was merely “slowing down approaching the

intersection, and did not stop.” (Boyle Dep., p. 58.) There is

deposition testimony from Marshall County sheriff’s officer

Nicholas Laffoon, who investigated the incident, that Anthony’s

view of plaintiff’s vehicle was not impeded by any environmental

circumstances. (Laffoon Dep., pp. 38-39.) Anthony testified he

was probably driving about twenty miles an hour across the road

when he went through the intersection. (Anthony Dep., p. 74.)

InfraSource has certain company procedures with which

employees must comply in order to operate a company-owned

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vehicle. (Samonie Dep., pp. 7, 15; DE #21-3, InfraSource’s

Disqualification and Probation Guidelines.) For example, drivers

must notify InfraSource of convictions, and there are periods of

disqualification and penalties for employees convicted of serious

traffic offenses. (DE #21-3.) InfraSource also maintains motor

vehicle records for employees, tracking citations and convictions

for traffic-related offenses. (Samonie Dep., pp. 5, 7.) 

InfraSource conducts annual reviews, and if an employee reports a

serious traffic violation during these reviews, their driving

privileges for company-owned vehicles are disqualified for a

period of one year and they are placed on probation. (DE #21-3.) 

DISCUSSION

The standards that generally govern summary judgment motions

are familiar. Pursuant to Rule 56(c) of the Federal Rules of

Civil Procedure, summary judgment is proper only if it is

demonstrated that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law. See Nebraska v. Wyoming, 507 U.S. 584, 590 (1993);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In other

words, the record must reveal that no reasonable jury could find

for the nonmovant. Karazanos v. Navistar Int’l Transp. Corp., 948

F.2d 332, 335 (7th Cir. 1991); see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986). In deciding a motion for

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summary judgment, a court must view all facts in the light most

favorable to the nonmovant. Anderson, 477 U.S. at 255; NUCOR

Corp. v. Aceros Y Maquilas De Occidente, 28 F.3d 572, 583 (7th

Cir. 1994). 

The burden is upon the movant to identify those portions of,

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits,” if any, that

the movant believes, “demonstrate the absence of a genuine issue

of material fact.” Celotex, 477 U.S. at 323. Once the movant has

met this burden, the nonmovant may not rest upon mere

allegations, but must set forth specific fact showing that there

is a genuine issue for trial. Becker v. Tenenbaum-Hill Assocs.,

Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa

German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). “Whether a

fact is material depends on the substantive law underlying a

particular claim and ‘only disputes over facts that might affect

the outcome of the suit under governing law will properly

preclude the entry of summary judgment.’” Walter v. Fiorenzo, 840

F.2d 427, 434 (7th Cir. 1988) (emphasis in original) (citing

Anderson, 477 U.S. at 248). 

“[A] party who bears the burden of proof on a particular

issue may not rest on its pleading, but must affirmatively

demonstrate, by specific factual allegations, that there is a

genuine issue of material fact which requires trial.” Beard v.

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Whitley Cnty. REMC, 840 F.2d 405, 410 (7th Cir. 1988) (emphasis

in original); see also Hickey v. A.E. Staley Mfg., 995 F.2d 1385,

1391 (7th Cir. 1993). Therefore, if a party fails to establish

the existence of an essential element on which the party bears

the burden of proof at trial, summary judgment will be

appropriate. In this situation, there can be, “‘no genuine issue

as to any material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Celotex, 477

U.S. at 323. 

In a diversity case, like this action brought under 28

U.S.C. § 1332, this Court applies Indiana state substantive law

and federal procedure. See, e.g., Erie v. Tompkins, 304 U.S. 64,

78 (1938); Hanna v. Plumer, 380 U.S. 460, 465 (1965); Trytko v.

Hubbell, Inc., 28 F.3d 715, 719-20 (7th Cir.1994)(citing

Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992))

Motion to Strike

The Defendants filed a Motion to Strike, arguing the

Minnesota Department of Public Safety’s driving record for

Anthony attached to Plaintiffs’ Appendix of Exhibits in

Opposition to Motion for Partial Summary Judgment (DE #23-4), is

impermissible character evidence, which is barred by Rule 404(b)

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and therefore, should be stricken. (DE #24.) Additionally, in

their response brief in opposition to the motion for partial

summary judgment (DE #22), Plaintiffs’ include Anthony’s driving

record in their statement of facts. (DE #22, p. 3.) 

The driver’s record shows what Plaintiffs contend are three

“convictions,” but this Court is unsure whether they are

citations, or convictions. The record states “3/31/08 Fail to

Obey Sign; 10/08/08 Fail to Obey Sign; 1/31/09 Serious Speed.” 

(DE #23-4.) Then a “Dev Warning Letter Sent” on 3/17/09. Id. In

response to the motion to strike, Plaintiffs argue that the

driving record impeaches Anthony’s testimony that he has a

“habit” of obeying stop signs. (DE #29, p. 2.) They contend

the convictions are so probative to determine Anthony’s alleged

disregard for traffic signs, that the driver’s record overcomes

any prejudicial effect.

A party who wishes to argue that portions of a statement of

genuine issues contain errors or are inadmissible on evidentiary

grounds may file a motion to strike those portions of the

statement of genuine issues. Goltz v. University of Notre Dame

du Lac, 177 F.R.D. 638, 640 (N.D. Ind. 1997). “Pleadings that do

not conform with the local rules may be stricken at the

discretion of the court.” Id. (citing Bell, Boyd & Lloyd v.

Tapy, 896 F.2d 1101, 1103 (7th Cir. 1990); Pfeil v. Rogers, 757

F.2d 850, 858 (7th Cir. 1985); Graham v. Security Sav. & Loan,

8
125 F.R.D. 687, 688-89 (N.D. Ind. 1989)). More importantly, it

is the function of a court, with or without a motion to strike,

to review carefully both statements of material facts, statements

of genuine issues, and the headings contained therein and to

eliminate from consideration any argument, conclusions, and

assertions unsupported by the documented evidence of record

offered in support of the statement. See, e.g., S.E.C. v. KPMG

LLP, 412 F.Supp.2d 349, 392 (S.D.N.Y. 2006); Sullivan v. Henry

Smid Plumbing & Heating Co., Inc., No. 04 C 5167, 05 C 2253, 2006

WL 980740, at *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v.

RadioShack Corp., No. 03 C 2249, 2004 WL 2203418, at *16 (N.D.

Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F.Supp.2d 917, 920

n.1 (N.D. Ind. 2004). 

In this circuit, Rule 404(b) character evidence is

admissible only if: (1) it is directed toward establishing a

matter in issue other than the defendant’s propensity to commit

the crime charged, (2) the evidence shows that the other act is

similar enough in time to be relevant to the matter in issue, (3)

the evidence is sufficient to support a jury finding that the

defendant committed the similar act, and (4) the probative value

of the evidence is not substantially outweighed by the danger of

unfair prejudice. United States v. Rivera, 6 F.3d 431, 443 (7th

Cir. 1993). “A trial court possesses broad discretion in

determining the relevance of proffered evidence and in balancing

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its probative value and unfair prejudice.” Young v. Rabideau,

821 F.2d 373, 377 (7th Cir. 1986)(citation omitted). 

In this case, Defendants argue that Anthony’s driving record

(showing three citations in the span of two years) should be

stricken pursuant to Federal Rule of Evidence 404(b) because it

is impermissible character evidence. (DE #30.) Rule 404(b) is

“intended to preclude evidence of a person’s propensity as proof

of the person’s conduct on the occasion at issue.” Wanke v.

Lynn’s Transp. Co., 836 F. Supp. 587, 593 (N.D. Ind. 1993)

(citing United States v. Sanders, 964 F.2d 295, 298-99 (4th Cir.

1992)). Accordingly, federal courts have held that evidence of

other traffic offenses is not admissible for the purpose of

proving a driver’s propensity to negligently operate a motor

vehicle. Id. at 594. In Wanke, the court held that a speeding

ticket received by a driver 2 days after an accident was not

admissible in a wrongful death action to establish the driver’s

alleged propensity to speed. Id. Also, the court found that any

probative value of evidence regarding the employer’s receipt of

post-accident complaint about its driver’s driving, on the issue

of the employer’s negligent hiring or failure to discharge the

driver, was outweighed by the risk the jury would, even if

properly instructed, draw a forbidden inference that the driver

was an unsafe driver. Id. at 595.

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In this case, Plaintiffs argue that Anthony “opened the

door” to impeachment evidence at his own deposition when he

testified to his “habit” of stopping at traffic control signs.

(DE #29, p. 2.) Specifically, Anthony testified in his

deposition that, “[M]y habit is I stop, I look, I pull out, I

look and then I proceed and look again.” (DE #29-1, Anthony Dep.,

p. 31.) While it is generally true that at trial, certain

evidence may be admitted outside the scope of 404(b) so long as a

defendant “opens the door” to the evidence, the Court does not

believe Anthony’s general statement made in his deposition

qualifies as such. 

Plaintiffs claim the certified driving record, which

includes infractions for disregarding traffic control signals

that occurred thirty-four and forty-one months prior to the

incident, establishes Defendant’s gross lack of care and his

awareness of danger with heedless indifference to the

consequences. (DE #29, pp. 2-3.) The phrasing of Plaintiffs’

argument defeats itself. Federal Rule of Evidence 404(b)

provides that evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show

action in conformity. Fed. R. Civ. P. 404(b). The rule is

intended to preclude evidence of a person’s propensity as proof

of the person’s conduct on the occasion at issue. Wanke, 836 F.

Supp. at 593. As in Wanke, where the speeding ticket was

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considered inadmissible as to evidence of the driver’s propensity

to speed, the Minnesota Driving Record in this case is

inadmissible as to evidence of Anthony’s propensity to

negligently operate a motor vehicle or his propensity to fail to

obey stop signs. Also, the prejudicial implications of the

driving record on potential jurors outweigh any probative value

of evidence regarding Anthony’s driving abilities. Accordingly,

this Court GRANTS the Motion to Strike (DE #24), because the

Minnesota Driving Record is impermissible character evidence

under Federal Rule of Civil Procedure 404(b). 

Motion for Partial Summary Judgment

The Defendants filed this Motion for Partial Summary

Judgment on June 30, 2014, requesting judgment on Count III for

punitive damages. (DE #19.) In response, Plaintiffs assert that

Anthony acted with gross negligence while operating his work

vehicle (and that the Minnesota driving record shows willful

custom and practice), and that this negligence supports the award

of punitive damages because it was such a gross lack of care that

he subjected the Plaintiff to probable injury, with an awareness

of danger and with heedless indifference of the consequences. 

(DE #22, pp. 3-4.) To the contrary, Defendants claim that

Plaintiffs have failed to provide evidence of grossly negligent

conduct by the Defendant that was not a result of a mistake of

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fact or law, mere negligence, or other human failing. (DE #19,

pp. 5-8.) Plaintiffs claim Anthony’s inattention was not “mere

momentary”, and the crash was not the result of mere human

failing, but rather Anthony intentionally barreled into the

intersection hoping his vehicle could safely, “beat” Plaintiff

without causing an accident. (DE #222, p. 2.) Finally,

Defendants argue that these unsubstantiated allegations

concerning Anthony’s motive in entering the intersection do not

constitute reliable evidence upon which an award of punitive

damages can be based. (DE #25, pp. 6-7.) 

The Plaintiffs also allege in their complaint that

InfraSource’s driving and hiring certification procedures are

inept, and the company should have known of Anthony’s failure to

conform his operation of a motor vehicle to the standards

expected of reasonable drivers and with due regard for

regulations of the road and the safety of others, which amounts

to gross negligence. (Compl. ¶ 33.) The Defendants rebut these

claims by stating that they are without merit because the

Defendants’ conduct, as a matter of law, does not rise to the

level necessary to support an award of punitive damages. (DE

#20, pp. 8-10.) Specifically, Defendants argue InfraSource’s

hiring and driving reporting procedures are in compliance with

the rules and regulations promulgated by the Federal Motor

Carrier Safety Administration, and are applicable when the

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employee is driving a commercial motor vehicle or a noncommercial motor vehicle. Id. Defendants continue by arguing

that in applying Anthony’s prior driving-related violations to

Federal guidelines, InfraSource was not required to disqualify

Anthony according to 49 C.F.R. §383.51 (2010). Id. Finally, for 

Plaintiff to be eligible for punitive damages, InfraSource would

have been required to have a culpable mind, intentionally

disregarding a danger that was not only possible, but probable.

A principal goal of punitive damages is to serve the public

interest by deterring wrongful conduct in the future by the

wrongdoer and others similarly situated. Neuros Co., Ltd. v.

Kturbo, Inc., 698 F.3d 514, 520 (7th Cir. 2012). There is no

right to punitive damages. Travelers Indem. Co. v. Armstrong,

442 N.E.2d 349, 362 (Ind. 1982). “Whether a party may recover

punitive damages is usually a question of fact for the fact

finder to decide; but it may be decided as a matter of law.” 

Williams v. Younginer, 851 N.E.2d 351, 358 (Ind. Ct. App. 2006)

(quotation omitted). A court may grant summary judgment to

resolve punitive damages claims. Breeck v. City of Madison, 592

N.E.2d 700, 703 (Ind. Ct. App. 1992). 

 Under Indiana law:

[P]unitive damages may be awarded only if there is

clear and convincing evidence that the defendant

acted with malice, fraud, gross negligence, or

oppressiveness which was not the result of a

mistake of fact or law, honest error or judgment,

14
overzealousness, mere negligence, or other human

failing.

Hi-Tec Props., LLC v. Murphy, 14 N.E.3d 767, 778 (Ind. Ct. App.

2014). To award punitive damages:

[The court] would have to conclude that under the

known circumstances, the defendant, ‘subjected

other persons to probable injury, with an awareness of such

impending danger and with heedless indifference of the

consequences,’ that a serious wrong, ‘tortious in nature,’ has

been committed, and that the public interest would be served by

the deterrent effect of punitive damages. 

Tacket v. General Motors Corp. Delco Remy Div., 818 F.Supp. 1243,

1246 (S.D. Ind. 1993)(quoting Bud Wolf Chevrolet, Inc. v.

Robertson, 519 N.E.2d 135, 136-37 (Ind. 1988)).

Indiana case law does not support the issuance of punitive

damages on defendants involved in vehicle collisions unless, at

the time of the incident, the vehicle operator was speeding,

their inattention was more than momentary, or a foreign substance

impaired them. See, e.g., Westray v. Wright, 834 N.E.2d 173,

180-181 (Ind. Ct. App. 2005)(reversing award of punitive damages

and holding defendant was not grossly negligent because he was

not speeding, was alone in the vehicle, and was “not drowsy,

intoxicated, or otherwise affected by any foreign substance”);

Purnick v. C.R. England, Inc., 269 F.3d 851, 852-53 (7th Cir.

2001)(holding evidence that driver was mesmerized by the road and

failed to brake his tractor-trailer was insufficient to prove a

mental state necessary to sustain punitive damages); Austin v.

15
Disney Tire Co., Inc., 815 F.Supp. 285, 288-290 (S.D. Ind.

1993)(granting summary judgment on punitive damages issue where

defendant glanced down while approaching an intersection, finding

evidence of driver’s “lack of skill” does not lead to an

interference that the driver acted with conscious disregard for

danger); Samuel v. Home Run, Inc., 784 F. Supp. 548 (S.D. Ind.

1992)(granting motion for partial summary judgment on punitive

damages issue where plaintiff failed to show clear and convincing

evidence that the conduct was wanton). In Miller, the Court held

that the defendant, operating a company-owned vehicle, after

stopping at a stop sign, proceeding into the intersection, and

then colliding with a passing vehicle, was not grossly negligent.

 Miller v. Indiana Dept. of Workforce Dev., 878 N.E.2d 346, 357

(Ind. Ct. App. 2007). Specifically, the court found that

defendant was negligent, but there was no evidence “he engaged in

any sort of conduct with reckless disregard.” Id. Similarly,

this Court finds that, as a matter of law, Anthony’s conduct does

not equate to gross negligence. 

Nothing in the record indicates that Anthony acted

purposefully, with malice, or with gross negligence, or that he

was driving while impaired. There is no evidence which supports

that Anthony knew of, but consciously disregarded, the

possibility that his actions would result in a collision with

Teresa Boyle’s vehicle. Plaintiffs have not carried their burden

16
of showing, by clear and convincing evidence, that Anthony acted

with malice, fraud, gross negligence, or oppressiveness. Hi-Tec

Props., 14 N.E.3d at 778.

With regard to Defendants’ argument that there is no

evidence to support an award of punitive damages against

InfraSource directly, Plaintiffs fail to even address this

argument in their memorandum in opposition. (DE #22.) 

Plaintiffs’ arguments on these points are therefore waived. See

E.E.O.C. v. U.S. Bell, No. 2:03-CV 237-PRC, 2005 WL 1683979, at

*15 (N.D. Ind. Jul. 19, 2005) (holding issues raised in summary

judgment motion that non-moving party does not properly respond

to are deemed waived); see also Palmer v. Marion Cnty., 327 F.3d

588, 597-98 (7th Cir. 2003) (holding arguments not presented to

the court in response to a summary judgment motion are waived).

Even assuming, arguendo, Plaintiffs had not waived the argument,

their position would still fail. Plaintiffs have failed to offer

clear and convincing proof that InfraSource consciously

disregarded knowledge that Anthony was a substantial danger to

motorists so as to support punitive damages. As to Anthony’s

hiring, there is no evidence that he lacked a valid driver’s

license or was otherwise unqualified to drive. The driving

record Plaintiffs rely on to establish gross negligence has been

stricken from the record. There is no evidence (even if the

previous driving record were to be included), that Anthony’s

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previous incidents involved substantially similar conduct or

circumstances to this case. Consequently, Defendants’ Motion for

Partial Summary Judgment on the claim for punitive damages is

GRANTED.

CONCLUSION

For the reasons set forth above, the Defendants Motion for

Partial Summary Judgment (DE #19) is GRANTED. The Clerk is

ORDERED to DISMISS WITH PREJUDICE Plaintiff’s claims for punitive

damages. (DE #1, Count III). The remaining claims in the

Plaintiffs’ Complaint REMAIN PENDING. Additionally, Defendants’

Motion to Strike (DE #24) is GRANTED. The Clerk is ORDERED to

STRIKE the Minnesota Department of Public Safety’s driving record

for Anthony (attached to Plaintiffs’ Appendix of Exhibits in

Opposition to Motion for Partial Summary Judgment as DE #23-4)

from the record.

DATED: December 3, 2014 /s/ RUDY LOZANO, Judge

United States District Court

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