Active v. Delta Western, Inc.

Filing 24

ORDER granting 19 Motion to Dismiss Delta's counterclaim. Signed by Judge John W. Sedwick on 6/12/12. (GMM, CHAMBERS STAFF)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ALASKA 10 11 12 MARGARET ACTIVE, 13 Plaintiff, 14 ) ) ) ) ) ) ) ) ) ) vs. 15 DELTA WESTERN, INC., 16 Defendant. 3:11-cv-00249 JWS ORDER AND OPINION [Re: Motion at docket 19] 17 18 19 I. MOTION PRESENTED At docket 19, plaintiff Margaret Active (“plaintiff” or “Active”) moves pursuant to 20 Federal Rule of Civil Procedure 12(b)(6) to dismiss defendant’s wrongful death 21 counterclaim. Defendant Delta Western, Inc. (“defendant” or “Delta”) opposes the 22 motion at docket 20. Plaintiff’s reply is at docket 23. Oral argument was not requested 23 and would not assist the court. II. BACKGROUND 24 25 M.M., a minor, was injured when his ATV struck a mooring line that connected 26 Delta’s oil barge to a beach in Togiak, Alaska. One of M.M.’s passengers, C.K., died 27 from injuries sustained in the accident. Active is M.M.’s mother. She has asserted a 28 negligence claim against Delta. -1- 1 Delta settled all claims with C.K.’s estate, and the settlement was approved by 2 the Alaska Probate Court. As part of the settlement, Delta was assigned all claims 3 against other parties arising out of C.K.’s death. Delta has asserted a counterclaim for 4 wrongful death against M.M. pursuant to AS 09.55.580. 5 III. STANDARD OF REVIEW 6 A motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil 7 Procedure 12(b)(6), tests the legal sufficiency of a party’s claims. In reviewing such a 8 motion, “[a]ll allegations of material fact in the [counterclaim] are taken as true and 9 construed in the light most favorable to the nonmoving party.”1 Dismissal for failure to 10 state a claim can be based on either “the lack of a cognizable legal theory or the 11 absence of sufficient facts alleged under a cognizable legal theory.”2 “Conclusory 12 allegations of law . . . are insufficient to defeat a motion to dismiss.”3 13 To avoid dismissal, a party must plead facts sufficient to “state a claim to relief 14 that is plausible on its face.”4 “A claim has facial plausibility when the [claimant] pleads 15 factual content that allows the court to draw the reasonable inference that the [other 16 party] is liable for the misconduct alleged.”5 “The plausibility standard is not akin to a 17 ‘probability requirement’ but it asks for more than a sheer possibility that a [party] has 18 acted unlawfully.”6 “Where a [counterclaim] pleads facts that are ‘merely consistent’ 19 with a [party’s] liability, it ‘stops short of the line between possibility and plausibility of 20 entitlement to relief.’”7 “In sum, for a [counterclaim] to survive a motion to dismiss, the 21 22 1 23 2 24 3 25 4 26 Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 5 Id. 27 6 28 Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). 7 Id. (quoting Twombly, 550 U.S. at 557). -2- 1 non-conclusory ‘factual content,’ and reasonable inferences from that content, must be 2 plausibly suggestive of a claim entitling the [claimant] to relief.”8 3 IV. DISCUSSION 4 In Mat-Su Regional Med. Ctr. v. Burkhead, the Alaska Supreme Court noted that 5 “although [it has] never expressly held that assignments of personal injury claims are 6 invalid as a matter of public policy, [it has] long recognized a ‘general rule of non- 7 assignability of claims for personal injury’ under Alaska law.”9 Plaintiff argues that 8 defendant’s counterclaim for wrongful death should be dismissed based on that general 9 rule. 10 The Alaska Supreme Court has recognized limited exceptions to the general rule. 11 In Croxton v. Crowley,10 for instance, the court found that reassignment of a wrongful 12 death claim against an employer’s parent company–a claim that had been assigned to 13 the employer by statute and then reassigned to the estate of the decedent by the 14 employer’s insurance company–was effective. The court reasoned that the policy 15 behind the rule of non-assignability is not implicated when the assignment is to the 16 injured party.11 17 Delta argues that Croxton stands for the proposition that “the public policy behind 18 non-assignment does not apply where the assignee is not a stranger to the underlying 19 dispute.”12 Delta’s reading of the case is overly broad. As this court reads it, the 20 exception recognized in Croxton is limited to reassignment of a claim to the injured 21 22 23 8 24 25 26 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 9 225 P.3d 1097, 1102 (Alaska 2010) (quoting Croxton v. Crowley Mar. Corp., 758 P.2d 97, 99 (Alaska 1988)). 10 758 P.2d 97 (Alaska 1988). 27 11 28 Id. at 99 (citing Caldwell v. Ogden, 618 F.2d 1037, 1048 (4th Cir. 1980). 12 Doc. 20 at 3. -3- 1 party.13 Consequently, even though Delta is not a stranger to the action, Croxton does 2 not compel recognition of assignment of C.K.’s wrongful death claim. Moreover, to the 3 extent Croxton does permit assignment of claims from one party to a related party, the 4 relationship in that case–employer-employee–arose before the claim accrued.14 Here, 5 there was no relationship between C.K. and Delta before the injury occurred. 6 In Deal v. Kearney,15 the background was this: A hospital which had been sued 7 by a patient named Kearney settled with Kearney, paying him $510,000 and assigning 8 him its rights to indemnity, contribution, and equitable subrogation against Kearney’s 9 treating physician, Dr. Deal. Kearney then sued Dr. Deal. The Alaska Supreme Court 10 held that assignment of the claims for indemnity, contribution, and subrogation was valid 11 because “regardless of whether the assigned claims are thought of as originating in tort 12 or contract, the ‘injury’ [to the hospital was] not a ‘personal injury’ subject to the general 13 rule on non-assignability.”16 Delta argues in its memorandum: “The wrongful death 14 claim is not based on a claim for an injury to the Estate’s “person”; it is based on the 15 Estate’s economic losses arising out of C.K.”s death.”17 However, the Estate here, 16 unlike the hospital in Kearney, is a surrogate for the deceased person. It exists only 17 because of the personal injury to the deceased. 18 19 20 21 22 23 13 See Croxton, 758 P.2d at 99 (“While this reason may be sensible in other situations, it has little force in the specific context of an insure re assigning a right of action back to the estate of a deceased employee.”). See also Caldwell, 618 F.2d at 1048 (“Those purposes, to prevent unscrupulous strangers to an occurrence from preying on the deprived circumstances of an injured person, and to prohibit champerty, simply have no applicability where the assignment is to the injured person himself.”). 14 24 25 26 Croxton, 758 P.2d at 99 (“In this limited context, the purchase and sale of a cause of action for pain and suffering would be between the employer (or insurer) and the estate of the deceased employee. This type of transaction is considerably less offensive to us than when an unrelated third party purchases the rights to such a cause of action.”). 15 851 P.2d 1353 (Alaska 1993) 27 16 28 Id. at 1356. 17 Doc. 20 at p. 8. -4- 1 Delta also argues that it is not seeking to recover any damages for the personal 2 injury to the decedent, only the pecuniary loss to the estate. However, Deal was 3 concerned with injury, not damages, which are compensation for injury. Paragraph (a) 4 of AS 09.55.580 states that “when the death of a person is caused by the wrongful act 5 or omission of another, the personal representatives of the former may maintain an 6 action therefor against the latter, if the former might have maintained an action, had the 7 person lived, against the latter for an injury done by the same act or omission.”18 It is 8 clear from this paragraph that a wrongful death claim is properly categorized as a 9 “personal injury” claim. A personal injury claim is subject to the general rule that “tort 10 actions for personal injuries are not assignable.”19 Delta has not shown that its wrongful 11 death claim falls within an exception to that rule. 12 13 14 15 V. CONCLUSION For the reasons above, Active’s motion to dismiss Delta’s counterclaim is GRANTED. DATED this 12th day of June 2012. 16 /s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 18 28 AS 09.55.580(a) (emphasis added). 19 Wichman v. Benner, 948 P.2d 484, 487 (Alaska 1997). -5-

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