SAUTER et al v. PERFECT NORTH SLOPES, INC. et al

Filing 56

ORDER denying 47 Motion for Leave to File Crossclaim against Defendant Perfect North Slopes, Inc. Signed by Magistrate Judge William G. Hussmann, Jr., on 7/11/2012. (NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
JAMES STEPHEN SAUTER and
PIPER SAUTER, Individually and As
Natural Guardians of M.S., a Minor,
Plaintiffs,
v.
PERFECT NORTH SLOPES, INC.,
ANDREW BROADDUS,
STEPHANIE DANIEL,
CHRISTOPHER DANIEL,
JENNY WARR, and
ANTHONY WARR,
Defendants.

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4:12-cv-27-TWP-WGH

ORDER ON MOTION FOR LEAVE TO ASSERT CROSSCLAIM
This matter is before the court on the Motion of Defendants Stephanie
Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr for Leave to Assert
Crossclaim for Indemnification/Contribution Against Defendant Perfect North
Slopes, Inc., filed May 22, 2012. (Docket No. 47). Defendant Perfect North
Slopes filed an Objection to the motion on June 1, 2012 (Docket No. 49), and
the individual Defendants filed their Reply Memorandum on June 11, 2012
(Docket No. 52).
Discussion
Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr
(“the Moving Defendants”) filed this motion seeking to add a crossclaim against

Defendant Perfect North Slopes, Inc. (“PNS”). Federal Rule of Civil Procedure
13(g) provides that “[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). However, “once 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.” Tragarz v. Keene Corp.,
980 F.2d 411, 431 (7th Cir. 1992).
Rule 15(a) of the Federal Rules of Civil Procedure permits the
amendment of a pleading after a responsive pleading has been filed only upon
leave of the court or consent of the adverse party, but notes that leave should
be freely given when justice requires. Fed. R. Civ. P. 15. “Although the rule
reflects a liberal attitude towards the amendment of pleadings, courts in their
sound discretion may deny a proposed amendment if the moving party has
unduly delayed in filing the motion, if the opposing party would suffer undue
prejudice, or if the pleading is futile.” Campania Management Co., Inc. v. Rooks,
Pitts & Poust, 290 F.3d 843, 848-49 (7th Cir. 2002).
In this instance, the requested crossclaim would be futile because
Indiana law does not recognize indemnification under the facts of the present
case. Indiana law bars contribution or indemnification among joint tortfeasors
absent an express contract. McClish v. Niagara Mach. and Tool Works, 266

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F.Supp. 987, 989 (S.D. Ind. 1967). As an exception, the right to indemnify may
be implied at common law in favor of one whose liability to a third person is
solely derivative or constructive, and only as against one who has by his
wrongful act caused such derivative or constructive liability to be imposed
upon the indemnitee. Indianapolis Power & Light Co. v. Brad Snodgrass, Inc.,
578 N.E.2d 669, 671 (Ind. 1991). Further, Indiana courts have recognized only
three situations where derivative or constructive liability exists; namely,
respondeat superior, manufacturer/seller relationships, and situations where a
nondelegable duty was created through rule or statute. McClish, 266 F.Supp.
at 989-90.
Here, Plaintiffs allege that both the Moving Defendants and PNS failed to
exercise ordinary and reasonable care in the operation of the snowtubes, and
also that PNS was negligent in the management of the snowtube trail.
Consequently, Plaintiff’s allegations in this case indicate that PNS and the
Moving Defendants were joint tortfeasors. Nothing in the record suggests that
the negligence of the Moving Defendants is derivative or constructive with
respect to the negligence of PNS, or that any of the three situations outlined in
McClish exists in this case. Additionally, the record does not reflect that there
was any contractual indemnification. Since the present case does not give rise
to a situation where contribution or indemnification exists, the requested
crossclaim would be futile. Because adding the crossclaim would be futile, the
Moving Defendants’ motion seeking to add a crossclaim should be denied.

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Conclusion
For the reasons outlined above, Defendants Stephanie Daniel,
Christopher Daniel, Jenny Warr, and Anthony Warr’s Motion for Leave to
Assert Crossclaim Against Defendant Perfect North Slopes, Inc., is DENIED.
IT IS SO ORDERED the 11th day of July, 2012.

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Electronic copies to:
Curtis L. Cornett
CORS & BASSETT, LLC
[e-mail]
K. Lee Cotner
COTNER LAW OFFICE
[e-mail]
Paul M. De Marco
WHITE SCHNEIDER BAYLESS & CHESLEY
[e-mail]
Thomas F. Glassman
SMITH, ROLFES & SKAVDAHL CO., LPA
[e-mail]
Wilmer E. Goering II
ALCORN GOERING & SAGE, LLP
[e-mail]
Michael C. Peek
CHRISTOPHER & TAYLOR
[e-mail]

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Louise M Roselle
WAITE, SCHNEIDER, BAYLESS & CHESLEY CO. LPA
[e-mail]
John Patrick Schomaker
SMITH ROLFES & SKAVDAHL CO, L.P.A.
[e-mail]

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