New Commercial Motor Vehicle Opinion on Master and Servant in Tennessee: Opinion Overlooks Applicable Federal Law

The Tennessee Court of Appeals recently issued its opinion in McClure v. Cole, No. M2017-00187-COA-R3-CV (Tenn. Ct. App. Jun. 22, 2018).  The syllabus from that slip opinion reads as follows:

Personal injury action arising out of accident between a pickup truck and a dump truck hauling materials for a company that paved roadways. The pickup truck driver sued the driver of the dump truck and the paving company to recover for injuries he sustained in the accident. The trial court granted the paving company’s motion for summary judgment, holding that the driver of the dump truck was an independent contractor and that the paving company was not liable for the dump truck driver’s negligence. The injured driver appeals. Upon a thorough review of the record, we affirm the grant of summary judgment.

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/mcclure.jimmy_.opn_.pdf

NOTE: I'm afraid that this opinion overlooks applicable federal law, which is a huge omission that adversely affects the case; I strongly suspect the litigants did not bring this applicable law to the trial court's attention.  Why does federal law apply in this state case?  Because Tennessee has adopted the Federal Motor Carrier Safety Regulations ("FMCSRs").  49 C.F.R. §§ 301–309, adopted pursuant to Tenn. Comp. R. & Regs. 1340-06-01-.08 via Tenn. Code Ann. §§ 65-2-102 & 65-15-113 (adopting the FMCSRs to intrastate use of commercial motor vehicles).   And the FMCSRs apply to a "commercial motor vehicle," which, among other things, is a vehicle having a gross vehicle weight rating ("GVWR") in excess of 10,001 pounds.  49 C.F.R. §§ 383.5, 390.5.  The dump truck in question more than likely had a GVWR in excess of 10,001 pounds, which made the FMCSRs applicable in this case.  And under the FMCSRs, the operator of the dump truck, Cole, was an "employee" and Highway his "employer," 49 C.F.R. §§ 383.5, 390.5 (defining among other terms "employee" and "employer" for purposes of operation of a "commercial motor vehicle"), which could have possibly gotten the plaintiff past summary judgment as to the respondeat superior claim, or, even to a jury verdict in favor of the plaintiff.  Perry v. Harco Nat'l Ins. Co., 129 F.3d. 1072, passim (9th Cir. 1997) (finding that an operator of a commercial motor vehicle was an employee and not an independent contractor as defined under the definitions contained in the FMCSRs), https://scholar.google.com/scholar_case?case=4390761991902461199&q=129+F.3d.+1072&hl=en&as_sdt=6,43