Kobilan et al v. Colter et al
MEMORANDUM AND ORDER granting 5 DEFENDANT YRC INC.'S MOTION TO DISMISS; granting 11 DEFENDANT DEREK A. COLTER'S MOTION TO DISMISS. Signed by District Judge Eric F. Melgren on 10/26/2017. (mam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATTHEW KOBILAN and DIANA
KOBILAN, individually, heir-at-law and
administrator of the ESTATE OF
Case No. 17-1074-EFM-GEB
DEREK A. COLTER AND YRC, Inc.,
MEMORANDUM AND ORDER
Plaintiffs Matthew Kobilan and Diana Kobilan filed this action against Defendants under
theories of negligence and negligence per se. The Koblians allege that Defendant Derek Colter
injured them while operating his semi-trailer truck under the employment of Defendant YRC,
Inc. (“YRC”). Plaintiffs also make a claim for attorneys’ fees pursuant to K.S.A. § 66-176.
Defendants move to dismiss Plaintiffs’ claims of negligent hiring, retention, qualification,
supervision, and training against YRC, Plaintiffs’ claims under 49 U.S.C. § 14704(a)(2) and the
Federal Motor Carrier Safety Regulations (“FMCSR”), and Plaintiffs’ claim for attorneys’ fees
under K.S.A. § 66-176. For reasons explained below, the Court grants Defendant YRC’s Motion
to Dismiss (Doc. 5) and Defendant Derek A. Colter’s Motion to Dismiss (Doc. 11) and dismisses
Factual and Procedural Background1
On February 10, 2016, Plaintiffs were passengers traveling in a vehicle headed
westbound on East Mary St. in Garden City, Kansas, attempting to turn north onto US 400.
Defendant Colter was operating a semi-trailer truck in the course and scope of his employment
for Defendant YRC and was traveling northbound on US 400. Defendant Colter failed to obey
the traffic signal at the intersection at US 400 and Mary St. and caused a collision with the
vehicle carrying Plaintiffs.
Plaintiffs filed suit on March 30, 2017. While Plaintiffs fail to specifically label any
causes of action in the complaint, Plaintiffs state claims for negligent hiring, retention,
qualification, and training against Defendant YRC and a claim for common-law negligence
against Defendant Colter. Plaintiffs also appear to state a negligence per se claim against
Defendants YRC and Colter. Plaintiffs list multiple regulations under the FMCSR relating to
minimum duties and standards of care, and claim that Defendants Colter and YRC were
negligent and negligent per se in violating them. Plaintiffs also recite a portion of the Motor
Carrier Act (“MCA”) stating that carriers are liable for damages sustained as a result of an act
that violates the MCA. Plaintiffs further allege that Defendant YRC is liable under the doctrine
of respondeat superior and vicarious liability, and seek attorneys’ fees against YRC pursuant to
K.S.A. § 66-176.
On April 27, 2017, Defendant YRC filed a motion to dismiss Plaintiffs’ claims of
negligent hiring, retention, qualification, supervision, and training, Plaintiffs’ negligence per se
claims under the FMCSR and MCA, and Plaintiffs’ claim for attorneys’ fees. On May 15, 2017,
The facts are taken from Plaintiffs’ Complaint (Doc. 1) and are accepted as true for the purposes of this order.
Defendant Colter moved to dismiss Plaintiffs’ negligence per se claims under the FMCSR and
the MCA, and Plaintiffs’ claim for attorneys’ fees.2 Defendant Colter did not challenge
Plaintiffs’ common-law negligence claim against him, and Defendant YRC did not challenge
Plaintiffs’ claim for negligence through respondeat superior or vicarious liability, so these
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.”3 A complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim of relief that is plausible on its face.’ ”4 A claim is
facially plausible if the Court can reasonably infer the defendant is liable from the facts pleaded.5
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.6 The Court
accepts all factual allegations in the complaint as true and views them in a light most favorable to
the plaintiff.7 The Court, however, does not apply the same standard to conclusory allegations or
It is clear from the complaint that Plaintiffs did not claim attorneys’ fees against Defendant Colter so the Court will
disregard this part of the motion.
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, 1177 (10th Cir. 2007).
Iqbal, 556 U.S. at 678–79.
A. Claims of Negligent Hiring, Retention, Qualification, Supervision, and Training
Defendant YRC moves to dismiss Plaintiffs’ claims of negligent hiring, retention,
qualification, supervision, and training. The doctrine of negligent hiring and retention arises
from an employer’s duty to use reasonable care in the selection and retention of employees.9 An
employer breaches that duty if the employer knew or should have known that the employee was
incompetent or unfit for the position.10 To survive a motion to dismiss a negligent hiring claim,
Plaintiffs must allege both the employee’s incompetence or unfitness and the employer’s actual
or constructive knowledge of such incompetence or unfitness.11
Negligent supervision and negligent training are distinct from negligent hiring and
retention in Kansas.12 An employer may be liable for failure to supervise its employees if the
employer had “reason to believe that the employment of the employee would result in an undue
risk of harm to others.”13 An employer may also be liable if the harm caused by the employee
could have been prevented with more, or better, training.14
In the complaint, Plaintiffs do not provide any factual basis for their assertion that YRC
was negligent in its hiring, retention, supervision, qualification, or training of Colter. Plaintiffs
merely assert the legal conclusion that because Colter was in a collision in which he failed to
Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653, 662 (Kan.1984).
Chambers v. Simon Prop. Grp., L.P., 2013 WL 1947422, at *4 (D. Kan. May 10, 2013) (unpublished).
Wayman v. Accor N. Am., Inc., 45 Kan. App. 2d 526, 251 P.3d 640, 650 (2011).
Estate of Belden v. Brown Cty., 46 Kan. App. 2d 247, 261 P.3d 943, 968 (2011).
obey a traffic signal, Colter was not a safe employee, and therefore, YRC was negligent in
hiring, retaining, training, qualifying, and supervising him. Iqbal requires “more than a sheer
possibility” that the defendant is liable for the misconduct alleged.15 Even assuming that Colter
was incompetent and unfit for his position, Plaintiffs failed to allege that YRC knew, or had
reason to know, that Colter was unfit, that he presented an undue risk of harm to others, or that
additional training could have prevented the collision. Without factual support, Plaintiffs’ claims
of negligence in hiring, retention, qualification, supervision, and training must be dismissed.16
B. Negligence per se claims under 49 U.S.C. § 14704(a)(2) and the FMCSR
Defendants YRC and Colter move to dismiss Plaintiffs’ negligence per se claims under
49 U.S.C. § 14704 and the FMCSR, arguing that there is no private cause of action for violations
of the MCA and that there are no factual allegations supporting Plaintiffs’ claims. Plaintiffs
concede in their response to the motion to dismiss that they did not intend to assert a claim under
§ 14704(a)(2) or the FMCSR. Regardless, § 14704(a)(2) only creates a private right of action for
damages in commercial disputes.17 It does not create a private right of action for damages in
personal injury or wrongful death claims.18 Even if did, Plaintiffs merely stated the legal
conclusion that Defendants violated provisions of the FMCSR, without providing a factual basis
for their claims that Defendants violated those provisions. While the Court must accept all
Iqbal, 556 U.S. at 678.
The Court is unable to find Kansas case law supporting a cause of action for “negligent qualification.” Because
Plaintiffs fail to provide authority for this claim, the Court will dismiss it as it does not appear to be a valid cause of
action in Kansas.
Stewart v. Mitchell Transport., 241 F. Supp. 2d 1216, 1221 (D. Kan. 2002).
factual allegations in the complaint as true, the Court cannot apply the same standard to
conclusory allegations or legal conclusions.19 Thus, the Court dismisses these claims.
C. Claim for Attorneys’ Fees under K.S.A. § 66-176
Defendant YRC next argues that Plaintiffs’ claim for attorneys’ fees under K.S.A. § 66176 should be dismissed because § 66-176 does not allow for recovery in claims predicated on
negligence, and because there has been no finding by the Kansas Corporation Commission that
Defendant YRC violated regulations contained in Chapter 66. Parties in Kansas cannot recover
attorneys’ fees absent clear and specific statutory authority.20
Section 66-176 specifically
provides that any common carrier “which violates any of the provisions of law for the regulation
of . . . common carriers shall forfeit, for every offense to the person . . . aggrieved thereby, the
actual damages sustained by the party aggrieved, together with the costs of suit and reasonable
attorney fees, to be fixed by the court.” Thus, the statute requires a violation of the laws
regulating common carriers.
Plaintiffs do not identify a specific violation under Chapter 66, but rather identify
provisions of law contained in the FMSCR. Regardless of whether a specific violation of
Chapter 66 is required or simply a violation of the provisions of law for the regulation of
common carriers, Plaintiffs fail to provide any factual allegations as to how Defendants violated
a provision of law. Plaintiffs simply state legal conclusions. Thus, Plaintiffs do not state
a plausible claim for attorneys’ fees because they fail to allege that Defendants violated
“provisions of law for the regulation of . . . common carriers.” Accordingly, the Court need not
address Defendant’s argument that the cause of action cannot survive absent a finding by the
Iqbal, 556 U.S. at 678–79.
Hayes Sight & Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 136 P.3d 428, 457 (2006).
Kansas Corporation Commission that Defendant YRC violated regulations contained in Chapter
66. The Court therefore dismisses Plaintiffs’ claim for attorneys’ fees pursuant to K.S.A. § 66176.
Because Plaintiffs failed to state a claim for negligent hiring, retention, qualification,
supervision, and training that was plausible on its face, those claims against Defendant YRC are
Furthermore, because Plaintiffs deny that they stated claims under 49
U.S.C. § 14704(a)(2) and the FMCSR, because there is no private cause of action under those
statutory schemes, and because Plaintiffs’ claims were facially deficient, Plaintiffs’ negligence
per se claims under § 14704(a)(2) and the FMCSR against Defendants YRC and Colter are
hereby dismissed. Finally, because a claim for attorneys’ fees under K.S.A. § 66-176 requires
that Defendants violated a provision of law regulating common carriers, and because Plaintiffs
failed to provide any factual allegations that Defendants violated those laws, Plaintiffs’ claim for
attorneys’ fees pursuant to § 66-176 against Defendant YRC is hereby dismissed.
Because Defendant Colter did not challenge Plaintiffs’ common-law negligence claim,
and Defendant YRC did not challenge Plaintiffs’ claim for negligence through respondeat
superior or vicarious liability, these claims remain.
IT IS THEREFORE ORDERED that Defendant YRC’s Motion to Dismiss (Doc. 5) is
IT IS FURTHER ORDERED that Defendant Derek A. Colter’s Motion to Dismiss
(Doc. 11) is GRANTED.
IT IS SO ORDERED.
Dated this 26th day of October, 2017.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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