United States District Court, E.D. Kentucky, Southern Division
ZANE A. PARKER, Plaintiff,
UNIVERSITY OF THE CUMBERLANDS, INC., Defendant.
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
Zane Parker alleges that he was brutally assaulted and robbed
on campus while attending the University of the Cumberlands
(“the University”). Parker contends that the
University failed to provide a safe environment and breached
various express and implied contracts. [Record No. 1]
Parker's claims are based, in large part, on his
allegation that he was assaulted by Devin Preyer and Davonte
Rozier. According to the Complaint, Rozier was a student at
the University and Preyer had recently been expelled, but
“remained a fixture” on campus. Id. at
p. 4. It is alleged that Preyer and Rozier had a history of
violence and “openly flaunted their violent
did not name Preyer and Rozier as defendants. However, the
University was granted leave to file a Third Party Complaint
in which it asserted claims for indemnity and apportionment
against Preyer and Rozier. [Record No. 17] This matter is
pending for consideration of Parker's motion to strike
the Third Party Complaint. [Record No. 20] For the reasons
that follow, the motion will be denied.
14(a) of the Federal Rules of Civil Procedure provides that
“[a] defending party may, as a third-party plaintiff,
serve a summons and complaint on a nonparty who is or may be
liable to it for all or part of the claim against it.”
Indemnity is available to a party exposed to liability based
on the wrongful act of another “with whom he/she is not
in pari delicto.” York v. Petzl Am.,
Inc., 353 S.W.3d 349, 353 (Ky. Ct. App. 2010) (quoting
Degener v. Hall Contracting Corp., 27 S.W.3d 775,
780 (Ky. 2000)). Indemnity is a limited doctrine, but may
apply where “both parties have been in fault, but not
in the same fault . . . and the fault of the party from whom
indemnity is claimed was the primary and efficient cause of
the injury.” Degener, 27 S.W.3d at 780
(quoting Louisville Ry. Co. v. Louisville Taxicab &
Transfer Co., 77 S.W.2d 36, 39 (Ky. 1934)). The
University claims that any liability it may have to the
plaintiff is based on the intentional acts Preyer and Rozier.
Accordingly, the Third Party Complaint states a plausible
claim for relief. See Fed. R. Civ. P. 8(a)(2);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
has failed to identify persuasive authority supporting the
proposition that the University must wait until its liability
is established to bring an indemnity claim against Preyer and
Rozier. See Degener, 27 S.W.3d at 777, 781
(approving Hall's third-party complaint for indemnity for
any amounts which it might be required to pay
injured officers). He also has not shown that the
University's third-party claims should be tried
separately. The decision regarding whether to bifurcate a
trial is based on the specific facts of the case, but courts
must consider convenience, judicial economy, and prejudice to
the parties. Fed.R.Civ.P. 42(b); In re Bendectin
Litigation, 857 F.2d 290, 307 (6th Cir. 1988). Parker
did not attempt to develop an argument that separate trials
are warranted and, therefore, the request will be denied.
McPherson v. Kelsey, 25 F.3d 989');">125 F.3d 989, 995-96 (6th Cir.
1997) (“It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court
to . . . put flesh on its bones”).
parties agree that apportionment is not a substantive cause
of action. [Record No. 25, p. 6] Nevertheless, defendants are
sometimes permitted to implead third parties by asserting
claims for apportionment to ensure that liability is
apportioned among all culpable parties. See, e.g.,
Stanford v. United States, 948 F.Supp.2d 729, 744 (E.D.
Ky. 2013) (citing Degener, 27 S.W.3d at 779). Based
on the allegations in the Complaint and Third-Party
Complaint, it appears that apportionment will be unavailable
here, as there is no suggestion that the University acted
in pari delicto with Preyer or Rozier. See Texas
Capital Bank, N.A. v. First Am. Title Ins. Co., No. 3:
09-cv-661, 2012 WL 443460, at *2 (W.D. Ky. Feb. 10, 2012)
(quoting Deneger, 27 S.W.3d at 778) (apportionment
liability arises when joint tortfeasors' concurrent
negligence is of “substantially same character”).
However, the University has alleged a viable indemnity claim
and dismissing or striking the Third Party Complaint based on
the unavailability of apportionment is not an appropriate
remedy. Instead, the parties may address the issue through
motions in limine or proposed jury instructions.
on the foregoing, it is hereby
that the plaintiffs motion to strike [Record ...