           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 9, 2009

                                     No. 08-60768                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ERASTO BONILLA-TORRES; ETHEL BONILLA-TORRES

                                                  Plaintiffs-Appellants
v.

WAL-MART TRANSPORTATION LLC

                                                  Defendant-Appellee



               Appeal from the United States District Court for the
                         Southern District of Mississippi
                             USDC No. 1:07-CV-928


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Erasto and Ethel Bonilla-Torres appeal the district
court’s grant of summary judgment in favor of Defendant-Appellant Wal-Mart
Transportation LLC, on their state law negligence claim arising out of a traffic
accident involving an unidentified tractor that was towing a trailer bearing
Defendant’s logo. Reviewing Plaintiffs’ claim de novo, Markos v. City of Atlanta,
364 F.3d 567, 570 (5th Cir. 2004), we AFFIRM.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 08-60768

      Plaintiffs contend that Defendant failed to overcome a presumption that
its employee drove the tractor that caused the accident. Under Mississippi law,
“[o]ne who engages an independent contractor is not responsible for torts
committed by the contractor.” Conley v. Warren, 797 So.2d 881, 883 (Miss.
2001). However, Mississippi courts recognize a rebuttable presumption that a
commercial truck involved in an accident and that bears the defendant’s name
is owned by the defendant and is operated by the defendant’s employee in the
scope of his employment. See Newell v. Harold Shaffer Leasing Co., 489 F.2d
103, 109 (5th Cir. 1974). In this case, the uncontroverted affidavit testimony of
Defendant’s senior systems manager, substantiated by the company’s global
positioning and messaging data for its tractors on the date in question, reflects
that none of Defendant’s employee-driven tractors was near the location of the
accident when it occurred. The manager further explained Defendant’s practice
of hiring independent trucking companies to haul its trailers.              This
uncontradicted testimony not only established that the tractor in question did
not belong to Defendant, as Plaintiffs concede, but also would clearly rebut any
presumption that an employee of Defendant was driving the tractor at the time
of the accident. See Jack Cole Co. v. Hudson, 409 F.2d 188, 192 (5th Cir. 1969)
(noting that the presumption of ownership and agency disappears upon showing
of strong and clear, or positive and undisputed evidence to the contrary).
Because Plaintiffs failed to raise a genuine issue of material fact regarding
Defendant’s vicarious liability for the accident, the district court properly
granted summary judgment in favor of Defendant.
      AFFIRMED.




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