Conway v. Adrian Carriers, LLC. et al

Filing 71

ORDER denying 59 Motion to Dismiss. The Court ALLOWS plaintiff up to and including August 12, 2016 to file fourth amended complaint. See Order for details. Signed by Judge David R. Herndon on 7/28/16. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TAMMY CONWAY, individually,
and as Personal Representative
of the Estate of David Conway,
deceased,
Plaintiff,
v.

No. 15-01137-DRH

ADRIAN CARRIERS, LLC,
and GREGORY LEE HORNE,
Defendants.

MEMORANDUM and ORDER

HERNDON, District Judge:
I.

Introduction and Background

Now before the Court is defendants’ motion to dismiss plaintiff’s third
amended complaint, or alternatively to strike and/or make plaintiff’s claims more
definite and certain (Docs. 59 & 60). Plaintiff opposes the motion (Doc. 64). For
the following reasons, the Court denies the motion.
This case stems from a tractor-trailer on tractor-trailer accident between
plaintiff’s decedent David Conway and Gregory Horne. David Conway died as a
result of the accident and his estate brings wrongful death (Counts I, II & III–
vicarious liability) and survival actions (Counts IV, V & VI-vicarious liability) (Doc.
52).

Plaintiff seeks both compensatory and punitive damages.

The third

amended complaint further alleges that Horne was acting within the course and
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scope of his employment at the time of the incident and that Adrian Carriers, LLC
was liable for any acts and omissions of Horne under the doctrine of respondeat
superior. Defendants filed their answers to plaintiff’s complaint admitting that
Horne was operating the tractor-trailer in the course and scope of his employment
with Adrian Carriers, LLC and that Adrian Carriers, LLC owned the tractor-trailer
that Horne was operating at the time of the accident (Doc. 20, p. 4 & Doc. 21. p. 4).
Defendants move to dismiss the third amended complaint arguing that
under Illinois law does not permit recovery of punitive damages in common law
negligence actions under the Wrongful Death Act, 740 ILCS 108/1, or the Survival
Act, 755 ILCS 5/27-6, and that plaintiff cannot maintain a direct claim for negligent
hiring, negligent retention or negligent entrustment against an employer when the
employer admits responsibility for the conduct of its agent/employee under a
respondeat superior theory. Plaintiff opposes the motion.
II.

Motion to Dismiss

When reviewing a 12(b)(6) motion to dismiss, the Court accepts as true all
allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To avoid dismissal under Rule
12(b)(6) for failure to state a claim, a claim 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). This requirement is satisfied if the complaint (1) describes the claim in
sufficient detail to give the defendant fair notice of what the claim is and the
grounds upon which it rests and (2) plausibly suggests that the plaintiff has a right
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to relief above a speculative level.

Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009); EEOC v. Concentra Health Servs., 496 F.3d 773, 776
(7th Cir. 2007).
Punitive Damages
As to the punitive damages issue, the Court finds that at this stage of the
litigation plaintiff has pled sufficient facts to show she is entitled to relief in both a
survival and wrongful death action.

As long as she can obtain some relief,

dismissal is inappropriate at this time.

Further, the Court finds that the punitive

damages allegations do no warrant striking as the requests for punitive damages
are not redundant, immaterial, impertinent or scandalous and will not cause any
undue prejudice to Adrian Carriers, LLC or to Horne.

Indeed, based on the

briefings, whether punitive damages are available appears to be a material issue in
this case. Plaintiff contends that a conflict of law issue exists which presents the
potential for Missouri law to apply to the case which would allow punitive damages.
The Court notes that neither party has adequately addressed this issue in the
briefings. The parties may raise the choice of law issue at the summary judgment
stage, where they can present facts to support their respective choice of law
positions. Thus, the Court denies the motion as to punitive damages issue.
Respondeat Superior/Negligent Entrustment
In Illinois, a negligent entrustment claim is duplicative where the employer
has admitted liability for the actions of the employee in a respondeat superior

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claim. Gant v. L.U. Transp., Inc., 770 N.E.2d 1155, 1159 (Ill. App. 2002); Neff v.
Davenport Packaging Co., 268 N.E. 2d 574, 575 (Ill. App. 1971). Because of the
potential admission of inflammatory evidence irrelevant to the negligence action,
Illinois courts have reasoned that a negligent entrustment claim must be dismissed
where the employer admits the employee was acting within his scope of his
employment. “The liability of the employer is fixed by the amount of the liability of
the employee.” Gant, 770 N.E.2d at 1160. Respondeat superior and negligent
entrustment are “simply alternative theories by which to impute an employee’s
negligence to an employer.”

Id; Thompson v. Northeast Illinois Regional

Commuter Railroad Corp., 854 N.E.2d 744, 747 (Ill. App. 2006).
“In cases involving willful and wanton entrustment, however, the analysis
necessarily differs from that of negligent entrustment.

Unlike the situation in

negligent entrustment cases, where the misconduct of the defendant-principal is of
the same level of culpability as the tortfeasor-agent, defendants-principals may be
found guilty of willful and wanton conduct even though the tortfeasors-agents to
whom the instrumentality causing the injury was entrusted may have been only
negligent. … Consequently, the necessity of proof of the defendant-principal’s
misconduct in connection with the willful-and-wanton entrustment actions is not
eliminated simply because that party acknowledges an agency relationship with the
tortfeasor.” Lockett v. Bi-State Transit Authority, 94 Ill.2d 66, 73 (Ill. 1983).
“The Lockett court held that Neff’s rationale does not apply when the entrustment
alleged is willful and wanton.” Gant, 770 N.E.2d at 1160.
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Here, there are allegations of willful and wanton conduct in the third
amended complaint and if proven, may subject Adrian Carriers, LLC to greater
liability than the negligence of Horne. As such, this matter falls under Lockett and
dismissal is not appropriate at this stage of the litigation.
III.

Conclusion

Accordingly, the Court DENIES the motion to dismiss plaintiff’s third
amended complaint, or alternatively to strike and/or make plaintiff’s claims more
definite and certain (Doc. 59).

Lastly, the Court ALLOWS plaintiff up to and

including August 12, 2016, to file a fourth amended complaint to correct the
typographical error contained in Count VI.

Digitally signed
by Judge David
R. Herndon
Date: 2016.07.28
19:37:49 -05'00'

IT IS SO ORDERED.
Signed this 28th day of July, 2016.

United States District Judge

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