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Pierce v. Cook & Co.

United States Court of Appeals for the Tenth Circuit
518 F.2d 720 (10th Cir. 1975)


On January 11, 1968, Ted Pierce was killed and his two passengers, Mike Davis and Stephen Ellenwood, were injured when a tractor-trailer collided with Pierce’s automobile on an Oklahoma highway. Ted’s wife, Claudiatte Pierce (plaintiff), Davis, and Ellenwood filed suit in Oklahoma state court against the company that the truck driver worked for as an independent contractor, Cook & Co. (defendant). Cook removed all three suits to federal court based on diversity jurisdiction. In order to destroy diversity, Davis dismissed his suit and his guardians re-filed his case in state court on his behalf. The federal court granted Cook’s motions for summary judgment for the two remaining plaintiffs based on the application of an Oklahoma state decision, Marion Machine, Foundry & Supply Co. v. Duncan, 187 Okla. 160 (1940), which held that shippers are not liable for torts committed by independent contractors. The plaintiffs appealed, arguing that under the federal Motor Carrier Act, Cook was liable for the accident. The court of appeals affirmed, finding that state law applied. The case’s final judgment was filed in 1971. Conversely, although Davis lost in state court at the trial level, the court of appeals overturned Marion and found that independent contractors could incur tort liability on their employers. The court remanded the case, and it settled favorably for Davis in 1974. A few months later, Pierce and Ellenwood filed a Rule 60(b) motion to be relieved of the federal court’s judgment.

Rule of Law


Holding and Reasoning (Breitenstein, J.)

Concurrence (Barrett, J.)

Dissent (Lewis, C.J.)

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