Hauserman v. AJ Freight Systems Inc. et al
MEMORANDUM AND ORDER granting 11 MOTION TO DISMISS DEFENDANT NATIONAL CONTINENTAL INSURANCE COMPANY. Signed by District Judge Eric F. Melgren on 6/26/2017. (mam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-1053-EFM-GLR
AJ FREIGHT SYSTEMS, INC.; DD
LOGISTICS, INC.; CURTIS JOHNSON;
AND NATIONAL CONTINENTAL
MEMORANDUM AND ORDER
Plaintiff Robert Hauserman filed an action against Defendants under theories of
negligence and vicarious liability. Hauserman alleges Curtis Johnson injured Hauserman while
operating his truck under the employment of AJ Freight Systems, Inc. and/or DD Logistics, Inc.
Hauserman further claims National Continental Insurance Co. (“NCIC”) is the insurance carrier
for AJ Freight and is therefore liable under K.S.A § 66-1,128. Before the Court is NCIC’s
Motion to Dismiss (Doc. 11). For reasons explained below, the Court grants Defendant’s
Factual and Procedural Background1
On November 14, 2015, Hauserman worked on his employer’s dock to unload an AJ
Freight semi-trailer truck driven by Johnson. Johnson backed the truck into the dock and
stopped. Hauserman stepped into the trailer and began unloading it. During the unloading
process, Johnson pulled away from the dock. Hauserman fell to the ground behind the truck.
Subsequently, Johnson reversed the truck, pinning Hauserman between the trailer and the dock.
That night, Hauserman went to the hospital for injuries related to the accident.
Hauserman brought suit on February 28, 2017, alleging Johnson’s negligence caused his
injuries, and AJ Freight and DD Logistics are vicariously liable. Hauserman also alleges AJ
Freight and DD Logistics are liable for negligently hiring and training Johnson.
complaint, Hauserman claims diversity of citizenship jurisdiction. Hauserman provides he is a
citizen of Kansas, and AJ Freight and DD Logistics are corporations incorporated in Illinois, and
NCIC is domiciled in New York, while Johnson’s citizenship is unknown.
On May 8, 2017, NCIC filed this Rule 12(b)(6) motion, seeking dismissal of the case
against it. NCIC argues that Hauserman failed to allege the filing and approval of a liability
insurance policy with the Kansas Corporation Commission (“KCC”). Therefore, under Kansas
case law, Hauserman has not pleaded facts sufficient for the Court to infer liability. The Court
The facts are taken from Hauserman’s complaint and are accepted as true for the purposes of this ruling.
Under Rule 12(b)(6), a defendant may move to dismiss a claim for which a plaintiff “fails
to state a claim upon which relief can be granted.”2 A complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim of relief that is plausible on its face.’ ”3 A claim is
facially plausible if the Court can reasonably infer the defendant is liable from the facts pleaded.4
The plausibility standard reflects the Rule 8 requirement that pleadings must provide defendants
with fair notice of the claims, as well as the grounds upon which the claims rest.5 The Court
accepts all factual allegations in the complaint as true and views them in a light most favorable to
the plaintiff.6 The Court, however, does not apply the same standard to conclusory allegations or
In its motion, NCIC asserts Hauserman failed to allege NCIC is liable under K.S.A. § 661,128 because his complaint failed to satisfy the conditions for a cause of action laid out by the
Kansas courts. In the relevant portion, K.S.A. § 66-1,128(a) states:
(a) Except as provided in subsection (c) or pursuant to federal statutes, no
certificate, permit, or license shall be issued by the commission to any public
motor carrier of property, household goods or passengers or private motor carrier
Fed. R. Civ. P. 12(b)(6).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
See Robbins v. Oklahoma, 519 F.3d 1242, 1246–47 (10th Cir. 2008).
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1176 (10th Cir. 2007).
Iqbal, 556 U.S. at 678–79.
of property, until the applicant has filed with the commission a liability insurance
policy approved by the commission….8
The Kansas Supreme Court has held the statute allows a direct action against an insurer of a
motor carrier operating in the State of Kansas under authority granted by the KCC.9
allege liability against an insurer under K.S.A. § 66-1,128, the plaintiff “must allege filing and
approval of the liability insurance policy with the KCC.”10
Here, Hauserman’s complaint fails to allege both the filing and approval of an insurance
policy with the KCC. NCIC is only mentioned once in Hauserman’s complaint. Paragraph five
of the complaint alleges NCIC is an insurance carrier for AJ Freight and “at all material times
there was in force a liability insurance policy” issued by NCIC to AJ Freight. The paragraph
then alleges the policy covered AJ Freight’s operations as a “common carrier on Kansas
highways,” and NCIC “is therefore liable under [K.S.A. § 66-1,128].”
Hauserman’s allegations that NCIC is an insurance carrier for AJ Freight and issued an
insurance policy for AJ Freight are factual, and considered true for the purpose of this motion.
His allegation that NCIC is liable under K.S.A § 66-1,128, however, is a conclusory allegation,
and as such, the Court will not consider it true for the purpose of this motion. Simply put, the
complaint fails to allege either the filing of a policy with the KCC or the KCC’s approval of an
insurance policy. Consequently, the complaint fails to meet the conditions laid out by the
K.S.A § 66-1,128.
Fitzgerald v. Thompson, 167 Kan. 87, 204 P.2d 756, 758 (1949) (citing Dunn v. Jones, 143 Kan. 218, 53
P.2d 918 (1936)); see also Dechand v. Ins. Co. of State of Pa., 732 F. Supp. 1120, 1122 (D. Kan. 1990).
Cooper v. Old Dominion Freight Line, Inc., 781 F. Supp. 2d 1177, 1185 (D. Kan. 2011) (citing
Fitzgerald, 204 P.2d at 759).
Kansas Supreme Court to allege liability against an insurer under K.S.A § 66-1,128.
Accordingly, the complaint fails to state a claim against NCIC upon which relief can be granted.
Hauserman’s complaint makes a conclusory allegation that NCIC is liable under the
statute, but courts do not assume conclusory allegations as true as they do factual allegations
when deciding a Rule 12(b)(6) motion. Even if this Court assumed all of Hauserman’s facts
were true, his complaint contains no allegations that could constitute a claim under which
Hauserman could recover. Hauserman, therefore, has no basis to assert NCIC’s liability under
K.S.A. § 66-1,128. Accordingly, the Court grants the motion to dismiss.
IT IS THEREFORE ORDERED that Defendant National Continental Insurance’s
Motion to Dismiss (Doc. 11) is hereby GRANTED.
IT IS SO ORDERED.
Dated this 26th day of June, 2017.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?