Compton v. Harrodsburg, KY City of et al

Filing 51

MEMORANDUM OPINION AND ORDER: (1) 50 Motion for Reconsideration is GRANTED. (2) 49 Order is VACATED IN PART and AMENDED AS SET FORTH HEREIN. (3) Dft's 47 JOINT MOTION for Leave to file Third-Party Complaint is GRANTED. Clerk shall FILE Dfts' proposed third-party complaint subject to the limitations described herein. Signed by Judge Joseph M. Hood on 10/2/2013. (SCD)cc: COR,Pro Se Dft Elder(via US Mail) Modified on 10/2/2013 (SCD).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
SAMANTHA COMPTON,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CITY OF HARRODSBURG,
KENTUCKY, et al.,
Defendants.

Civil Case No.
5:12-cv-302-JMH-REW
MEMORANDUM OPINION
AND ORDER

***
This matter is before the Court upon a Joint Motion to
Reconsider [D.E. 50] filed by Defendants City of Harrodsburg and
Ernie

Kelty,

in

his

individual

capacity.

The

Court

having

reviewed the Motion, and being otherwise sufficiently advised,
this matter is now ripe for review.
I. Factual and Procedural Background
Plaintiff filed a complaint against Defendants on September
25,

2012,

under

42

U.S.C.

§

1983,

alleging

Constitutional

violations, as well as state law violations, arising out of
Plaintiff’s sexual relationship with a member of the City of
Harrodsburg Police Department. [D.E. 1]. The Court previously
dismissed several parties, as well as several of Plaintiff’s
claims.

[D.E.

24].

Defendants

City

of

Harrodsburg

and

Ernie

Kelty, in his individual capacity, then sought leave from this
Court to file a third-party complaint against Rodney and Deanna

Compton,

the

parents

of

Plaintiff.

[D.E.

47].

The

Court

construed the third-party complaint as one seeking indemnity and
contribution, and denied Defendants’ Motion for Leave to file
the third-party complaint. [D.E. 49]. Defendants have filed a
new Motion, asking the Court to reconsider its denial of leave
to file the third-party complaint and clarifying that Defendants
are seeking apportionment. [D.E. 50].
II. Standard of Review
“District

courts

have

inherent

power

to

reconsider

interlocutory orders and reopen any part of a case before entry
of a final judgment.” Mallory v. Eyrich, 922 F.2d 1273, 1282
(6th Cir. 1991) (citing Marconi Wireless Telegraph Co. v. United
States, 320 U.S. 1, 47-48 (1943)). Courts grant a motion to
reconsider

“when

there

is

(1)

an

intervening

change

of

controlling law; (2) new evidence available; or (3) a need to
correct a clear error or prevent manifest injustice.” Rodriguez
v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959
(6th Cir. 2004) (citing Reich v. Hall Holding Co., 990 F. Supp.
955, 965 (N.D. Ohio 1998)).
III. Analysis
As to the indemnity claims, the Court does not find that
Defendants have presented a change of law, new evidence, or
manifest injustice that would warrant reconsidering its prior
Order.

However,

the

Court

will
2

address

each

of

Defendants

contentions

in

an

attempt

to

clarify

the

findings

in

its

previous Order. Thus, as to the indemnity claims, the previous
Order

[D.E.

construed

49]

stands

Defendants’

as

entered.

third-party

Previously,

complaint

as

the
one

Court
seeking

contribution, rather than apportionment, based on the language
used in the third-party complaint. [D.E. 49 at 4]. Through their
Motion to Reconsider, Defendants have informed the Court that
apportionment, rather than contribution, is what they intended
to plead. [D.E. 50 at 6]. The Court finds that Defendants have
preserved their right to have fault apportioned on the state law
claims.
A. Indemnity
Defendants do not assert any valid claims for indemnity.
Defendants have not asked the Court to reconsider its finding
that

indemnity

was

not

proper

for

any

liability

on

claims

arising under 42 U.S.C. § 1983. [D.E. 50 at 4]. Thus, the Court
will only assess the availability of indemnity for the state law
claims.
“A

right

to

total

indemnity

may

exist

if

the

joint

tortfeasors are not in pari delicto and the party secondarily
negligent asserts a claim against the one primarily negligent.”
Lexington Country Club v. Stevenson, 390 S.W.2d 137, 143 (Ky.
1965) (citing Brown Hotel Co. v. Pittsburgh Fuel Co., 224 S.W.2d

3

165

(Ky.

1949)).

In

Kentucky,

indemnity

will

lie

in

two

situations:
(1) Where the party claiming indemnity has not been
guilty
of
any
fault,
except
technically,
or
constructively, as where an innocent master was held
to respond for the tort of his servant acting within
the scope of his employment; or (2) where both parties
have been in fault, but not in the same fault, towards
the party injured, and the fault of the party from
whom indemnity is claimed was the primary and
efficient cause of the injury.
Degener v. Hall Contr. Corp., 27 S.W.3d 775, 780 (Ky. 2000). The
Defendants’ seek leave to file a third-party complaint asserting
indemnity based upon potential liability for the following state
law claims: (1) a tort of outrage claim against Defendant Kelty;
(2) a general negligence claim against Defendants; (3) negligent
training, supervision, and retention claims against Defendants;
(4)

negligent

screening

and

hiring

claims

against

Defendant

Kelty; and (5) an alleged statutory violation of KRS 620.030,
made actionable by KRS 446.070, against Defendants, based on a
failure to report child abuse. The appropriateness of impleader
for these claims will be discussed in turn.
1. Intentional Torts
a. Tort of Outrage
As the tort of outrage is an intentional tort, Defendant
Kelty

may

not

implead

the

Comptons

to

assert

a

claim

of

indemnity as to the tort of outrage claim. One condition for
impleader

is

that

the

third-party
4

defendant’s

liability

be

“derivative

of

the

impleading

party’s

liability.”

Gookin

v.

Altus Capital Partners, Inc., No. 05-179-JBC, 2006 WL 7132020,
at *2 (E.D. Ky. Mar. 24, 2006) (citing Moore’s Fed. Prac. And
Pro.

§

14.04

(2005)).

dependent

on

the

action.”

Id.

at

“Liability

determination
*3

(citations

is

of

derivative

liability

omitted).

in

Thus,

where
the
in

it

is

original

order

for

Defendant Kelty to recover on indemnity he must first be found
liable. To be found liable, Defendant Kelty must be found to
have acted intentionally. See Burgess v. Taylor, 44 S.W.3d 806,
811 (Ky. Ct. App. 2001) (“In order to recover under the tort of
outrage, a plaintiff must prove: 1) the wrongdoer’s conduct must
be intentional or reckless . . . .”). Indemnity is only allowed
when a party is the “passive tortfeasor,” or when “in fault, but
not the same fault.” Degener, 27 S.W.3d at 780. If Defendant
Kelty

is

considered

found

to

“passive”

have
and

acted
he

will

intentionally
at

least

be

he
in

cannot
the

be

“same

fault,” because there is no greater degree of fault than to act
intentionally. Thus, as a matter of law, Defendant Kelty cannot
succeed on indemnity for liability arising out of Plaintiff’s
tort of outrage claim, and impleader is improper.
b. Duty to Report
Defendants may not be indemnified by the Comptons in the
event Defendants are found liable for failing to report child
abuse under KRS 620.030. The Kentucky General Assembly made it
5

abundantly clear that every person who knows of child abuse
shall report that abuse. See KRS 620.030 (“Any person who knows
or has reasonable cause to believe that a child is dependent,
neglected, or abused shall immediately cause an oral or written
report to be made. . . . Nothing in this section shall relieve
individuals of their obligations to report.”). Indemnity shifts
responsibility

from

the

passive

tortfeasor

to

the

active

tortfeasor by making the active tortfeasor liable for the entire
judgment. See Stanford v. United States, No. 12-93-ART, 2013 WL
2422790,

at

*12

Country

Club

v.

(E.D.

Ky.

May

31,

2013)

Stevenson,

390

S.W.2d

(citing

137,

143

Lexington

(Ky.

1965))

(“[I]t is a right to ‘total indemnity.’ Because indemnity holds
a tortfeasor liable for all of the plaintiff’s damages, the
party must show that this strong remedy is warranted.”).

This

Court will not allow Defendants to pass their responsibility for
failing to report child abuse onto the Comptons, especially when
the

statutory

intent

to

impose

a

duty

on

every

party

with

knowledge of abuse is so clear.
Furthermore, like the tort of outrage claim, Defendants, as
a

matter

of

law,

will

not

be

able

to

show

indemnity

is

warranted. If Defendants had knowledge of potential child abuse,
the

statute

imposed

an

affirmative

duty

on

them,

in

which

failing to exercise that duty will preclude them from claiming
they were passive tortfeasors. Additionally, Defendants cannot
6

show they did not commit the same fault as the Comptons, as it
is

alleged

that

both

failed

to

report.

Thus,

impleader

is

improper.
2. Negligence Claims
Defendants

do

not

assert

a

derivative

claim

for

which

impleader is proper for any of Plaintiff’s claims arising out of
a theory of negligence. One condition for impleader is that the
third-party

defendant’s

liability

is

“derivative

of

the

impleading party’s liability.” Gookin, 2006 WL 7132020, at *2
(citing Moore’s Fed. Prac. And Pro. § 14.04 (2005)). “Liability
is derivative where it is dependent on the determination of
liability

in

the

original

action.”

Id.

at

*3

(citations

omitted). Thus, assuming Defendants have a claim for indemnity,
the Comptons could only be liable to Defendants if Defendants
were first found liable.
Defendants

make

their

motion

to

reconsider,

in

part,

because they believe the Court erred by finding that a duty was
owed from the Comptons to the Defendants before indemnity could
be asserted. [D.E. 50 at 6]. However, the Court espoused no view
on

whether

indemnity

required

a

duty.

Rather,

the

Court’s

decision was derived from the text of the Federal Rules of Civil
Procedure, and whether impleader was allowed at all, without
regard to the cause of action asserted. A third party may be
impleaded

only

if

the

third

party
7

“is

or

may

be

liable

to

[defendant] for all or part of the claim against it.” Fed. R.
Civ. P. 14(a)(1). This Court has previously denied a motion for
leave to file a third-party complaint because the defendants
“failed to even attempt to assert any duty or relationship which
indicate[d]

derivative

liability

as

required

under

Rule

14.”

Asher v. Unarco Material Handling, Inc., No. 6:06-548-DCR, 2007
WL 3046064, at *7 (E.D. Ky. Oct. 16, 2007). Therefore, impleader
can only be granted if the Defendants assert some underlying
theory on which the Comptons could be liable to Defendants.
Rather than assert a third-party complaint asserting that
the Comptons are liable to Defendants, Defendants are attempting
to assert a third-party claim based upon an allegation that the
Comptons are liable to Plaintiff. [D.E. 50 at 6] (“[W]hat is
important is that Rodney and Deanna Compton owed and breached a
duty to the Plaintiff . . . .”). This practice is not allowed:
Despite the clear language of the impleader rule on
this point, some defendants continue to attempt to
implead a third party on the basis of the third-party
defendant’s direct liability to the plaintiff. The
courts properly reject such attempts and limit
impleader to those third parties who are derivatively
liable to the defendant.
3 James Wm. Moore et al., Moore’s Fed. Prac. & Pro. § 14.04 (3d
ed. 1997); see also Brown v. Int’l Union, United Auto, etc., 85
F.R.D. 328, 336 (W.D. Mich. 1980) (citations omitted) (“It is
well settled that ‘a third party may be impleaded only on the
grounds that it is liable to the defendant, and not on the
8

grounds

that

it,

as

well

as

the

original

defendant,

may

be

liable to the plaintiff.’”); Asher v. Unarco Material Handling,
Inc., 2007 WL 3046064, at *6 (“[Defendants] repeatedly cite to
duties that Wal-Mart owed to the Plaintiffs, as an employer and
under

federal

warrant

law,

granting

but

the

these

proposed

claims

are

not

impleader.”).

sufficient

The

Comptons

to
may

very well have owed a duty to Plaintiff, but Defendants may not
utilize Rule 14 in an attempt to assert a violation of a duty
owed only to Plaintiff. Defendants may not implead the Comptons
for any potential liability on the negligence claims.
B. Apportionment
In

its

third-party

previous
complaint

order,
as

the

Court

asserting

a

construed

claim

for

Defendants’

contribution,

rather than a request for apportionment. [D.E. 49 at 4]. The
Court

also

they

indicated

could

request

that
an

if

Defendants

apportionment

sought

apportionment

instruction

at

the

appropriate time. [D.E. 49 at 5 n.1]. Through its Motion to
Reconsider, Defendants have informed the Court they are seeking
apportionment.

[D.E.

50

at

3].

The

Court

agrees

that

an

apportionment instruction may be appropriate as to the state law
claims.
1. Federal Law Claims
Defendants are not entitled to an apportionment instruction
for

liability

on

the

claims

made
9

under

42

U.S.C.

§

1983.

Plaintiff asserts claims under 42 U.S.C. § 1983 against the City
of Harrodsburg, Defendant Kelty, in his individual capacity, and
Defendant Elder, in his individual capacity, for violations of
substantive due process and personal integrity as guaranteed by
the

Fourteenth

Amendment.

Apportionment

is

appropriate

when

there are two or more causes and “there is a reasonable basis
for

determining

the

contribution

of

each

cause

to

a

single

harm.” Restatement (Second) of Torts § 433A (1965). Thus, for an
apportionment instruction to be appropriate, both Defendants and
the

Comptons

must

have

caused

the

same

harm

to

Plaintiff.

However, the Comptons could not have caused the constitutional
harms to Plaintiff that are redressable by 42 U.S.C. § 1983. By
bringing suit under § 1983, Plaintiff is seeking to recover for
the distinct harm of having her constitutional rights violated
by a person acting under color of state law. See Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by
Daniels v. Williams, 474 U.S. 327 (1986) (“[T]he two essential
elements to a § 1983 action are . . . (1) whether the conduct
complained of was committed by a person acting under color of
state law; and (2) whether this conduct deprived a person of
rights, privileges, or immunities secured by the Constitution or
laws of the United States.”). The Comptons were not acting under
color

of

state

law,

and

cannot

deprive

Plaintiff

of

her

constitutional rights. Apportionment is not appropriate on the
10

federal

law

claims

because

the

Comptons

did

not

cause

the

constitutional harms of which Plaintiff complains.
2. State Law Claims
“Apportionment

spreads

the

liability

for

a

plaintiffs

claims among the tortfeasors based on their relative fault.”
Stanford,

2013

WL

2422790,

at

*11.

Under

Kentucky

law,

apportionment is only applicable to tortfeasors in pari delicto.
See Degener, 27 S.W.3d at 780. Parties are in pari delicto when
they “are guilty of concurrent negligence of substantially the
same character which converges to cause the plaintiffs damages.”
Id.

at 778 (citing

Lexington Country Club v. Stevenson, 390

S.W.2d 137, 143 (1965)). The Court finds that Defendants have
stated

allegations

against

the

Comptons

that,

if

proved

at

trial, would warrant an apportionment instruction on the state
law claims.
Under Kentucky law, fault may only be apportioned among
tortfeasors who have been a party to the litigation, or settling
non-parties. See KRS 411.182; Baker v. Webb, 883 S.W.2d 898, 900
(Ky. Ct. App. 1994) (“When the statute states that the trier-offact shall consider the conduct of ‘each party at fault,’ such
phrase means those parties complying with the statute as named
parties to the litigation and those who have settled prior to
litigation, not the world at large.”). Therefore, for fault to

11

be apportioned to the Comptons on the state law claims, the
Comptons must have been a party to this action.
Thus, to preserve Defendants’ apportionment instruction the
Court

will

follow

the

practice

established

by

other

federal

courts applying Kentucky law. “The practice is to bring the
alleged wrongdoer into the case by a third party complaint only
to then have it dismissed.” Grimes v. Mazda N. Am. Operations,
355 F.3d 566, 572 (6th Cir. 2004) (citing D. Ct. Order, dated
Mar. 8, 2000); see also Hayes v. MTD Prods., Inc., No. 3:05-cv781-H, 2007 WL 437687, at *1-2 (W.D. Ky. Feb. 5, 2007). Based
upon this practice, the Court will grant Defendants’ Motion to
File a Third-Party Complaint. [D.E. 47]. However, as discussed
above, Defendants do not assert a valid claim for indemnity, and
apportionment is not an independent cause of action. Peoples
Bank of N. Ky., Inc. v. Horwath, 390 S.W.3d 830, 836 (Ky. Ct.
App. 2012). Therefore, in seven days, the Court will sua sponte
dismiss without prejudice the third-party complaint for failure
to state a claim on which relief can be granted. See Hayes, 2007
WL 437687, at *2.
In keeping the possibility of an apportionment instruction
alive,

the

apportionment

Court

stresses

instruction

at

that
this

it

is

time.

not
An

granting

an

apportionment

instruction will only be given if Defendants set forth evidence
at trial on which a reasonable juror could find the Comptons at
12

fault. See Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d
467, 471 n.5 (Ky. 2001) (“Fault may not be properly allocated to
a party, a dismissed party or settling nonparty unless the court
or the jury first finds that the party was at fault.”); Barnes
v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 826-27 (6th Cir.
2000)(“In

order

to

successfully

obtain

an

apportionment

instruction as to a person covered by section 411.182, the party
seeking the instruction must show that a reasonable juror could
conclude that apportionment of some liability to that defendant
is justified.”).
The

Court

apportionment

feels

compelled

instruction

to

does

remind
not

Defendants

entitle

that

an

to

an

them

“apportionment of such judgment,” which is the relief requested
by Defendants’ third-party complaint. [D.E. 47-1 at 7]. In other
words,

if

apportioned

an
to

apportionment
the

instruction

Comptons,

it

will

is

not

given
make

and

the

fault

Comptons

responsible for any part of a judgment for which Defendants may
be

found

liable.

Rather,

apportionment

is

merely

a

jury

instruction to apportion fault that, if Defendants are not found
to

be

completely

at

fault,

will

decrease

the

amount

of

the

judgment Defendants have to pay. See KRS 411.182 (“[T]he court .
. . shall instruct the jury . . . the percentage of the total
fault of all the parties to each claim that is allocated to each

13

claimant, defendant, third-party, defendant, and person who has
been released from liability.”).
Defendants rely on Missouri v. Jenkins, 495 U.S. 33 (1990),
for the proposition that cost can be apportioned. [D.E. 50 at
3].

Defendants’

reliance

on

this

case

is

misplaced

for

two

reasons. First, the cost of the judgment was apportioned among
tortfeasors who were jointly and severally liable. The district
court in that case found it more equitable to split up the
liability
There

is

according
no

to

claim

relative

of

joint

fault,
and

rather

several

than

equally.

liability

among

Defendants and the Comptons, and, more importantly, Kentucky has
abolished joint and several liability. Degener, 27 S.W.3d at
779. Second, the judgment was divided among defendants who could
be, and were, sued under 42 U.S.C. § 1983. The Comptons cannot
be sued under § 1983 because they were not acting under color of
state law. Missouri v. Jenkins only stands for the proposition
that the judgment could be apportioned among Defendants, which
will

already

Defendants

be

have

done

because,

already

asked

as

Defendants

for

point

apportionment

out,
among

themselves. [D.E. 50 at 7]; see also Barton Protective Servs.,
Inc. v. Faber, 745 So. 2d 968, 976 (Fla. Dist. Ct. App. 1999)
(citations omitted) (“To the limited extent that the issue of
apportionment of fault arose in [Missouri v. Jenkins], it did so
in

the

context

of

the

court’s
14

equitable

power

to

allow

for

contribution

among

joint

and

several

tortfeasors

to

ensure

complete funding of the remedy.”).
IV. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)

that Defendants Motion to Reconsider [D.E. 50] be, and

the same hereby is, GRANTED;
(2)
denying

that the Court’s Order of September 6, 2013 [D.E. 49]
Defendant’s

Complaint

be,

and

Motion
the

same

for

Leave

hereby

to

is,

File
VACATED

a

Third-Party
IN

PART

and

AMENDED AS SET FORTH HEREIN;
(3)

that Defendant’s Motion for Leave to File a Third-

Party Complaint [D.E. 47] be, and the same hereby is, GRANTED.
The Clerk shall FILE Defendants’ proposed third-party complaint
[D.E. 47-1] subject to the limitations described herein.
This the 2nd day of October, 2013.

15