Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Adams v. Family Dollar Stores of Kentucky

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

November 14, 2019



          Charles R. Simpson III, Senior Judge

         This matter is before the Court on motion for leave to file cross-claim by Defendant Family Dollar Stores of Kentucky, LP #11504, DN 16. For the following reasons, Defendant Family Dollar Stores of Kentucky's motion for leave to file a cross-claim will be DENIED.

         I. Background

         This motion arises in the context of this negligence action filed by Fred Adams (“Plaintiff”) against Family Dollar Stores of Kentucky, LP #11504 (“Family Dollar”) and Melville Family Trust GBR Real Estate (“Melville”) for injuries Plaintiff alleges he sustained during a slip and fall at a Family Dollar store. DN 1-1, p. 33. Plaintiff alleges that on November 4, 2017, while walking outside the Family Dollar store at 3421 West Broadway in Louisville, Kentucky, he fell and sustained serious and permanent injuries. Id. Plaintiff alleges Family Dollar and Melville (owner of the property at 3421 West Broadway) were negligent in maintaining the sidewalk around the store, causing him to slip and fall. Id. On October 29, 2018, Plaintiff filed an initial complaint in Jefferson Circuit Court against three defendants-Family Dollar, Israel Gorinstein, and Rachel Gorinstein. Id. at 5. In his initial complaint, Plaintiff stated “Defendants Israel and Rachel, to the best of Plaintiff's knowledge, own the property located at 1234 W. Broadway, Louisville, Kentucky.” Id. at 6. In fact, Israel and Rachel Gorinstein did own the property located at 1234 West Broadway, and a Family Dollar store is located on that property. However, Plaintiff alleges his injuries occurred at different Family Dollar store, located at 3241 West Broadway, approximately 2.5 miles West of the property owned by the Gorinsteins.

         On November 27, 2017, Plaintiff filed a “second amended complaint” that included Melville, the owner of the 3421 West Broadway property, as an additional defendant. Id. at 25. On January 8, 2019, Plaintiff filed a “third amended complaint, ” this time correcting the address of the alleged fall from 1234 West Broadway to 3421 West Broadway. Id. at p. 33. On April 12, 2019, Melville moved to dismiss Plaintiff's complaint for failure to file a claim within the one-year statute of limitations. DN 13. The motion was granted. DN 24. Earlier, on May 13, 2019, Family Dollar filed a motion for leave to file cross-claim against Melville based on (A) contractual indemnification (B) common law indemnification, and (C) apportionment and contribution. DN 16, p. 2. This memorandum will explain why Melville's motion on those grounds will be denied.

         II. Legal Standard

         “A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action.” Fed.R.Civ.P. 13(g). Federal Rule 13(g) does not impose any time limitations on the filing of cross-claims. Id. Accordingly, after the parties have filed their initial pleadings, any motion to amend those pleadings and file a cross-claim must be made pursuant to Federal Rule of Civil Procedure 15.

         A party may only amend its pleading with “the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). The “court should freely give leave when justice so requires.” Id. This rule gives effect to the principle that, as far as possible, cases should be determined on their merits and not on technicalities. Cooper v. Am. Employers' Ins. Co., 296 F.2d 303, 306 (6th Cir. 1961). Denial of leave to amend may be appropriate “where there is undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Miller v. Champion Enters., Inc., 346 F.3d 660, 690 (6th Cir. 2003). The motion for leave to file a cross-claim will be denied because the proposed cross-claim fails to state claims upon which relief can be granted and would, therefore, be “futile.” Id.

         III. Discussion

         A. Contractual Indemnification

         Family Dollar argues that Melville is bound by contract to indemnify Family Dollar for Plaintiff's claims. DN 16, p. 2. This argument is without merit. Under Kentucky law, parties to a contract may provide for contractual indemnification for costs incident to legal liability as well as legal liability itself. Thompson v. Budd Co., 199 F.3d 799, 807-08 (6th Cir. 1999) (citing United States Fidelity & Guar. Co. v. Napier Elec. & Constr. Co. Inc., 571 S.W.2d 644, 646 (Ky. Ct. App. 1978)). However, if there is ever doubt as to whether a contract provides for indemnity, courts should interpret the contract against finding indemnification. Amerco Marketing Company of Memphis, Inc. v. Myers, 494 F.2d 904, 913-14 (6th Cir. 1974). Contracts must demonstrate a clear intent to indemnify a party. Id.

         Family Dollar contends that the following section of the rental agreement requires Melville to provide full contractual indemnification should Family Dollar be deemed liable for any damages arising out of Plaintiff's negligence action:

12. MAINTENANCE AND REPAIRS. Landlord will remedy any defect in workmanship, materials or equipment furnished by Landlord pursuant to Paragraph 4 of this Lease provided Tenant notifies Landlord of the defect within 12 months after the Rent Commencement Date (“Landlord's 12-Month Obligation”). Landlord will maintain and repair and replace when necessary all exterior portions of the building constituting part of the Demised Premises, including the roof, exterior walls and also all structural portions of the building whether interior or exterior. Landlord will make all repairs and replacements to any portion of the Demised Premises where the damage or loss is caused by casualties or perils insurable under the insurance that landlord is required to carry pursuant to Paragraph 11(a). Landlord will also be responsible for making all repairs made necessary by the settling of the building constituting a part of the Demised Premises, all repairs to the interior of the building made necessary by Landlord's failure to maintain the exterior of the building, all repairs to the fire sprinkler system, if any, and all repairs to exterior (including under slab) plumbing and electrical lines. Landlord will keep the parking, service and access areas (and other exterior areas, if any) maintained and in a good state of repair and property lighted; provided however, that Landlord will not be responsible for the removal of snow, ice, trash, weeds and debris.
Tenant will be responsible for maintaining the existing landscaping including mowing; snow plowing, removing trash and debris from the parking area and landscaped areas; restriping the parking area and repairing parking area lights. Tenant will maintain and repair all interior, non-structural portions of the building, except for repairs Landlord is required to make. Tenant will be responsible for asphalt and concrete repairs until the aggregate costs equal $1, 000 in any lease year. Landlord will promptly reimburse Tenant for any costs incurred by Tenant in excess of $1, 000, and Landlord will have full responsibility for making, at Landlord's expense, any and all concrete and asphalt repairs ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.