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Burrell v. Duhon

United States District Court, W.D. Kentucky, Paducah

June 14, 2019

BURRELL et al., PLAINTIFFS
v.
DUHON et al., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE.

         This matter is before the Court on four motions. [R. 9, 12, 17, 21.] First, Defendants Lindy Duhon, Lindy Duhon Trucking, LLC, Forward Air, Inc., Forward Air Corporation, FAF, Inc. (TN), Forward Air Services, LLC, Forward Air Solutions, Inc., Forward Air Technology and Logistics Services, Element Financial Corp., and Element Fleet Management Corp. (hereinafter “Forward Air Defendants”) filed a Motion to Dismiss for Failure to State a Claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [R. 9.] Plaintiffs J.B. Burrell, Jr. and Marie Burrell (hereinafter “Plaintiffs”) responded, [R. 19], and Forward Air Defendants replied, [R. 24]. Second, Defendant ECN Financial, LLC (hereinafter “ECN”) filed a Motion to Dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) and for failure to state a claim pursuant to Rule 12(b)(6). [R. 12.] Plaintiffs responded, [R. 20], and ECN replied, [R. 26]. Third, Defendants Celadon Group, Inc., Celadon Trucking Services, Inc., and Celadon Logistics Services, Inc. (hereinafter “Celadon”) filed a Motion for Summary Judgment pursuant to Rule 56. [R. 17.] Plaintiffs responded, [R. 25], and Celadon replied, [R. 28]. Finally, Defendants Element Transportation Asset Trust, Element Transportation, LLC, 19th Capital Group, LLC, and 19th Capital Group, Inc. (hereinafter “19th Capital Movants”) filed a Motion to Dismiss for Failure to State a Claim pursuant to Rule 12(b)(6). [R. 21.] Plaintiffs responded. [R. 27.] 19th Capital Movants did not reply, and the deadline to do so has passed. This matter is now ripe for adjudication.

         For the reasons stated herein: Forward Air Defendants' Defendants Motion to Dismiss is DENIED; ECN's Motion to Dismiss is DENIED; Celadon's Motion for Summary Judgment is DENIED; and 19th Capital Movants' Motion to Dismiss is DENIED.

         BACKGROUND

         The factual allegations, as set out in the Complaint and presumed to be true at the motion to dismiss stage of litigation, are as follows.[1] On September 30, 2017, at approximately 2:00AM, Plaintiff J.B. Burrell was driving a commercial vehicle westbound on Interstate 24 with his wife, Plaintiff Marie Burrell, who was travelling with him as a passenger. [R. 1-4 at 9.] At the time of the incident, Mrs. Burrell was asleep in the sleeper compartment. [Id.]

         Further ahead on Interstate 24, Defendant Lindy Duhon was also driving a commercial vehicle westbound, specifically a tractor trailer. [Id.] At some point, Duhon lost control of the tractor trailer and entered the median separating the westbound from eastbound lanes of the interstate. [Id.] Although the details are not exact, the Complaint describes what happened next as follows:

After entering the unpaved median . . . Duhon's tractor trailer returned to the paved portion of Interstate 24 westbound -- on its side, with its wheels off the ground, and the underside (“belly”) of his tractor trailer facing east, with the length of his tractor trailer extending across and blocking both paved lanes and the adjacent shoulders of westbound Interstate 24.

[Id.]

         The Complaint alleges that it was dark and the highway was unlit, so Mr. Burrell could not see Duhon's tractor trailer blocking the road ahead of him. [Id.] Mr. Burrell collided with Duhon's trailer, allegedly resulting in injury to both Mr. and Mrs. Burrell. [Id.]

         Plaintiffs allege the involvement of the additional defendants, i.e., other than Duhon, as follows:

At the time and place and upon the occasion set forth above, Duhon was a driver operating a commercial motor vehicle as a statutory employee of one o[r] more of Defendants Nos. 2-15, as defined by 49 CFR §390.5(t); alternately, Duhon was a lessee and/or statutory employer; alternately, Duhon was assigned this cargo by and/or was under dispatch by one or more of Defendants Nos. 2-15; alternately, Duhon was the agent, servant, employee, ostensible agent, joint venturer, and/or independent contractor of one or more of Defendants Nos. 2-15; alternately, Defendants Nos. 2-15 were agents, servants, employees, ostensible agents, joint venturers, and/or independent contractors of each other.
At the time and place and upon the occasion and under the circumstances set forth above, one or more of Defendants Nos. 2-15 were Duhon's statutory employer; alternately, one or more of Defendants Nos. 2-l5 were the owners and/or had beneficial interests and/or control over the use and operation of the commercial motor vehicle being driven by Duhon; alternately, one or more Defendants Nos. 2-15 were the lessors of the commercial motor vehicle being driven by Duhon; alternately, one or more of Defendants Nos. 2-15 were the motor carriers under whose authority the cargo was being transported by Duhon; alternately, one or more of Defendants Nos. 2-15 assigned and/or dispatched the load/cargo to Duhon for transport.

[Id. at 10.] In total, the Complaint contains six counts. They include (1) negligence, (2) negligence per se, (3) strict liability, (4) vicarious liability, (5) negligent hiring, retention, supervision, and training, and (6) gross negligence. [Id. at 10-14.]

         On August 24, 2018, Plaintiffs filed a complaint in Marshall Circuit Court, and on September 19, 2018 the case was removed to federal court. [R. 1.] Subsequently, the defendants filed the motions that are currently before the Court.

         DISCUSSION

         The Court will address each motion in the order by which they were filed.

         I. Forward Air Defendants' 12(b)(6) Motion to Dismiss [R. 9]

         A. Review Under Rule 12

         As an initial matter, the Court acknowledges that the Plaintiffs attached multiple exhibits to their response to Forward Air Defendants' Motion to Dismiss. [See generally R. 19-1-19-8.] Forward Air Defendants do not object to the inclusion of these documents. [R. 24 at 4.] It is true that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). However, this decision rests within the discretion of the district court, which “remains free to refuse to accept materials outside the pleadings.” Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 503 (6th Cir. 2006) (quoting 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1371 (3d ed. 2004)). Furthermore, although the Court must normally disregard matters outside the pleadings in ruling on a motion to dismiss, a document can be properly considered on such a motion when it is “referred to in the complaint and . . . central to the plaintiff's claim.” Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999). As the Plaintiffs reference the lease and ownership interests of all defendants in the Complaint, and those interests are central to the alleged employer and agency relationships involved in the claims, the Court can properly consider the lease, financing, and ownership documents attached in exhibits 2, 3, and 4. [See R. 1-4 at 10.] However, exhibits 1, 5, 6, 7, and 8 include a police report and various emails that were not referenced in the Complaint. Thus, the Court will disregard exhibits 1, 5, 6, 7, and 8 in order to avoid converting this motion to dismiss into a motion for summary judgment.

         B. The Claims Against Forward Air Defendants in the Complaint

         Plaintiffs allege six claims against the defendants in the Complaint: negligence; negligence per se; strict liability; vicarious liability; negligent hiring, retention, supervision, and training; and gross negligence. [R. 1-4 at 10-14.] In their Motion to Dismiss for failure to state a claim, the Forward Air Defendants argue that they had no involvement with the accident at issue and cannot be held liable to Plaintiffs under any legal theory. [R. 9-1 at 3.] In fact, the Forward Air Defendants argue that the only properly listed defendants in this action are Lindy W. Duhon, Lindy Duhon Trucking, LLC, and FAF, Inc. (TN). [Id. at 2.]

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In order to survive a motion to dismiss under Rule 12(b)(6), a party must “plead enough ‘factual matter' to raise a ‘plausible' inference of wrongdoing.” 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim becomes plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). When considering a Rule 12(b)(6) motion to dismiss, the Court must presume all of the factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc., 552 F.3d at 434 (citing Great Lakes Steel, 716 F.2d at 1105). “The court need not, however, accept unwarranted factual inferences.” Id. (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). Should the well-pleaded facts support no “more than the mere possibility of misconduct, ” then dismissal is warranted. Iqbal, 556 U.S. at 679. The Court may grant a motion to dismiss “only if, after drawing all reasonable inferences from the allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief.” Garceau v. City of Flint, 572 Fed.Appx. 369, 371 (6th Cir. 2014) (citing Iqbal, 556 U.S. at 677- 79).

         The Forward Air Defendants make four specific arguments throughout their initial motion and reply, which the Court shall consider in turn. First, the Forward Air Defendants argue that whether “Defendants 2-15” in the Complaint had an ownership interest in the truck at issue “has no factual significance, as Kentucky law does not impose vicarious liability upon the owner of a vehicle that is involved in a collision. Farmer v. Stidham, 439 S.W.2d 71, 72 (Ky. 1969).” [R. 9-1 at 8.] However, Forward Air Defendants incorrectly apply the Supreme Court of Kentucky's findings in Farmer v. Stidham. In that case, the Supreme Court of Kentucky held: “Mere ownership of an automobile is not enough to impose liability on the owner for an accident brought about by the negligence of one operating the car with the owner's consent, absent certain exceptional circumstances not presented here. Corbin Fruit Company v. Decker, 252 Ky. 766, 68 S.W.2d 434; Wolford v. Scott Nickels Bus Company, Ky., 257 S.W.2d 594.” Farmer v. Stidham, 439 S.W.2d 71, 72 (Ky. 1969) (emphasis added). In one of the case cited by the Farmer court, Wolford v. Scott Nickels Bus Company, the Supreme Court of Kentucky stated: “Liability for damages arising from the operation of a motor vehicle must rest on something more than mere ownership. Where the vehicle is operated by a person other than the owner, the relationship of master and servant or principal and agent is necessary to establish liability on the owner.” Wolford v. Scott Nickels Bus Co., 257 S.W.2d 594, 595 (Ky. 1953). Of course, unlike in the facts of Farmer, one of the main issues at hand in this case is whether an agent or employee relationship existed between Forward Air Defendants and Plaintiffs. Thus, Forward Air Defendants case citation and resulting argument are distinguishable from this matter.

         Second, Forward Air Defendants argue that as they admitted in their Answer to the Complaint that Duhon was a statutory employee of FAF, Inc. (TN), it is now an “uncontested fact” that “beyond any legitimate dispute, . . . F.A.F., Inc. (TN) was Mr. Duhon's statutory employer.” [R. 9-1 at 9.] Furthermore, in their Reply, Forward Air Defendants assert that Plaintiffs' Complaint “did not assert that Lindy Duhon was an employee of any particular Defendant” and, therefore, is “insufficient to plausibly confer liability upon ‘all' of the defendants.” [R. 24 at 4.] The Court finds that Forward Air Defendants stating that FAF, Inc. (TN) was Duhon's sole employer in their Answer hardly makes it an “undisputed fact.” Furthermore, determining whether there is a dispute of material fact is the standard for motion summary judgment, not the earlier stage of motion to dismiss. See Fed.R.Civ.P. 56. As for Forward Air Defendants' argument in their Reply, the Court agrees that the Plaintiffs' allegations are scant. So much so, that the Court recognizes that they tread dangerously close to falling below pleading the factual content required at the motion to dismiss stage. However, in construing the facts in the light most favorable to Plaintiffs and accepting the allegations in the Complaint as true, the Court is hesitant to dismiss Plaintiffs' claim at this juncture. The Court finds that Plaintiffs have pleaded just enough to survive motion to dismiss. Furthermore, the Court expects the issue of Plaintiffs' relationship with specific defendants to become clearer as further evidence surfaces under Magistrate Judge King's recent ruling on Plaintiffs' Motion to Compel, [R. 62 at 18].

         Third, Forward Air Defendants specifically argue that Plaintiffs have not stated a claim for negligence. [R. 24 at 3.] The parties agree that Kentucky law governs this action. [See R. 9-1 at 6; R. 19 at 10.] Under Kentucky law, “[a] common law negligence claim requires proof of (1) a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) injury to the plaintiff, and (4) legal causation between the defendant's breach and the plaintiff's injury.” Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012) (citing Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003)). “The standard of care applicable to a common-law negligence action is that of ordinary care-that is, ‘such care as a reasonably prudent person would exercise under the circumstances.'” Id. (quoting Slusher v. Brown, 323 S.W.2d 870, 872 (Ky. 1959)).

         Under Count 1 of the Complaint, regarding Forward Air Defendants, Plaintiffs allege:

26. At the time and place upon the occasion and under the circumstances set forth above, Defendants Nos. 2-15 failed to exercise ordinary care, breached duties, and were otherwise negligent and careless in their ownership, leasing, maintenance, inspection, use, operation, and condition of the commercial motor vehicle furnished to and/or used by Duhon.
27. Defendants Nos. 2-15 failed to exercise ordinary care, breached duties, and/or were otherwise careless and negligent in their failure to promulgate, implement, enforce, monitor, and audit compliance with rules, regulations, policies, and procedures to promote reasonably safe operation, use, maintenance, inspection, and emergency response by ...

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