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Botkin v. Tokio Marine & Nichido Fire Ins. Co., Ltd.

United States District Court, E.D. Kentucky

July 10, 2013

TAYLOR BOTKIN, PLAINTIFF
v.
TOKIO MARINE & NICHIDO FIRE INSURANCE CO., LTD., DEFENDANT

For Taylor Botkin, Plaintiff: Justin A. Sanders, Robert E. Sanders, LEAD ATTORNEYS, The Sanders Law Firm, Covington, KY; Lisa A. McNelis, Richard J. Roselli, LEAD ATTORNEYS, Roselli & McNelis Law Firm, Boca Raton, FL.

For Tokio Marine & Nichido Fire Insurance Co., LTD, Defendant: Robert D. Bobrow, Robert Estes Stopher, LEAD ATTORNEYS, Boehl, Stopher & Graves - Louisville KY, Louisville, KY.

OPINION

Page 796

David L. Bunning, United States District Judge.

ORDER ADOPTING REPORT & RECOMMENDATION

I. INTRODUCTION

The matter is presently before the Court upon the Order and Report and Recommendation (" R& R) of the Magistrate Judge (Doc. # 50), Defendant's Motion for Leave to File Third-Party Complaint (Doc. # 35), and Plaintiff's Motion for Order for Oral Arguments on Defendant's Motion for Leave to File Third-Party Complaint (Doc. # 44). In her R& R,

Page 797

the Magistrate Judge recommends that the Court deny both motions. Defendant has filed Objections to the R& R (Doc. # 51), and Plaintiff has filed a Response to Defendant's Objections (Doc. # 52). Thus, the Magistrate Judge's R& R and Defendant's Objections are now ripe for the Court's review.

Upon review, Defendant's Objections lack merit and will be overruled, Defendant's Motion for Leave to File Third-Party Complaint (Doc. # 35) and Plaintiff's Motion for Order for Oral Arguments on Defendant's Motion for Leave to File Third-Party Complaint (Doc. # 44) will be denied, and the R& R will be adopted as the Court's opinion.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Magistrate Judge set forth the relevant facts and procedural background of this case in her R& R, and the Court restates it in full here:

On March 16, 2010, Plaintiff was injured in a car accident when the taxi in which he was riding collided with a vehicle driven by Tarik Uzmezler. It appears undisputed that Uzmezler caused the accident. Plaintiff alleged that at the time of the accident Uzmezler was driving under the influence of alcohol. (R. 1-1, ¶ 7). Plaintiff settled his claim against Uzmezler.
At the time of the accident Plaintiff was insured by Defendant under a policy of insurance that contained underinsured motorist (UIM) coverage. Plaintiff alleges that, pursuant to Kentucky Revised Statute § 304.39-320, he notified Defendant of the settlement with Uzmezler/State Farm. Defendant allegedly waived its subrogation rights against Uzmezler and consented to the settlement.
On March 14, 2012, Plaintiff filed suit against Defendant in Kenton Circuit Court seeking payment under the UIM provision of his policy for damages he alleges he sustained in excess of the amount he recovered from Uzmezler's insurance carrier. ® 1-1). On April 13, 2012, Defendant removed the action to this Court on the jurisdictional basis of diversity of citizenship. ® . 1).
On June 5, 2012, the presiding District Judge entered a scheduling order setting December 17, 2012, as the deadline for Defendant to file a motion to amend pleadings or join additional parties. ® . 17). On December 20, 2012, this Court granted the parties' joint request to extend their deadline to amend pleadings or join parties until January 7, 2013. ® . 31). On January 7, 2013, Defendant filed a motion for a further extension of time to join parties or amend pleadings, stating it was still awaiting a complete response to its subpoena from the Fort Lauderdale Police Department. ® . 32). Plaintiff objected to any further extension, explaining Defendant has had the police report for more than two years. Further, Plaintiff took note that Defendant waited until December 13, 2012, to issue its subpoena despite the impending deadlines. ® . 33). The Court granted Defendant until January 22, 2013, to move for leave to amend pleadings or join parties, but specifically cautioned that any such motion must contain an appropriate supporting memorandum as to why the proposed amendment and/or joinder is warranted. ® . 34).
On January 22, 2013, Defendant filed the pending Motion for Leave to File Third-Party Complaint, attaching the proposed Third-Party Complaint. ® . 35). In the proposed Third-Party Complaint, Defendant asserts that Uzmezler was employed at Ocean Manor Resort, owned by AFT Management Corp.

Page 798

(AFT), and that on the night of the accident, Uzmezler was a patron of the resort's Tiki Lounge. Defendant alleges that employees of the lounge served alcohol to Uzmezler after he had become noticeably intoxicated and knowing that he was habitually addicted to alcohol, in violation of Florida's dram shop statute. Thus, Defendant asserts it is entitled to bring a claim for indemnity against AFT and further asserts it is entitled to a jury instruction permitting the jury to apportion fault between AFT and Uzmezler for purposes of determining whether Plaintiff is entitled to UIM benefits.
Plaintiff opposes Defendant's filing of a third-party complaint, arguing Defendant is not entitled to indemnity from AFT nor is it entitled to an apportionment instruction. Moreover, Plaintiff argues that even if Defendant is entitled to pursue an indemnity claim against AFT, it should do so in a ...

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