Eiserman et al v. Kentucky Power Company et al

Filing 98

MEMORANDUM OPINION & ORDER: (1) GRANTING 3rd-Pty dft Kentucky State Police's 84 MOTION to Dismiss; the claims contained in the 3rd-Pty Complaint are DISMISSED WITH PREJUDICE; (2) DENYING 3rd-Pty pla's Kentucky Power Company's & Consol of Kentucky, Inc.'s 89 request for an apportionment instruction. Signed by Judge Danny C. Reeves on 9/22/15.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
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ERWIN EDWARD EISERMAN, et al.,
Plaintiffs,
V.
KENTUCKY POWER COMPANY, et al.,
Defendants and Third-Party
Plaintiffs,
V.
KENTUCKY STATE POLICE, et. al.,
Third-Party Defendants.
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Civil Action No. 5: 14-444-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of Third-Party Defendant Kentucky State
Police’s (“KSP”) motion to dismiss the claims asserted against it in a Third-Party Complaint
filed by Defendants Kentucky Power Company and Consol of Kentucky, Inc. (collectively,
the “Power Companies”). [Record No. 84] In its motion, the KSP contends that the ThirdParty Complaint fails to state a claim upon which relief may be granted because the KSP is
not subject to liability by virtue of sovereign immunity. Id. In their response to the KSP’s
motion, the Power Companies agree that sovereign immunity bars their claims against the
KSP. [Record No. 89] However, they ask the Court for an apportionment instruction against
the KSP at trial.
Because the claims against the KSP are barred by sovereign immunity, its motion to
dismiss the claims contained in the Third-Party Complaint will be granted. However, the
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Power Companies’ request for an apportionment instruction will be denied. As discussed
more fully below, Kentucky law prohibits apportionment for parties dismissed based on
absolute sovereign immunity.
I.
This case arises from the crash of a United States Drug Enforcement Agency
helicopter on July 29, 2013. [Record No. 1-1] Plaintiff Al Eiserman was acting within the
scope of his employment with the KSP at the time of the accident and was a passenger in the
helicopter when it hit a power line allegedly owned by the Power Companies. [Record Nos.
1-1, 66, and 84] The plaintiffs contend that the Power Companies’ gross negligence caused
the accident and Eiserman’s resulting injuries. [Record No. 1-1] Following removal to this
Court, the Power Companies filed a Third-Party Complaint seeking apportionment,
indemnity, and common law contribution from the KSP. [Record No. 66]
On September 1, 2015, the KSP moved to dismiss the claims asserted against it.
[Record No. 84] In their response, the plaintiffs agreed that the KSP is protected from
liability by virtue of sovereign immunity and, therefore, is entitled to dismissal of the claims
asserted against it. [Record No. 88] However, they contend that, by virtue of the Sixth
Circuit’s decision in Grimes v. Mazda N. Am. Operations, 355 F.3d 566 (6th Cir. 2004), they
are entitled to an apportionment instruction against the KSP at trial. Id.
II.

When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6)

of the Federal Rules of Civil Procedure, the Court must determine whether the Complaint
alleges “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 555 (2007)). The plausibility standard is met “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Thus,
although the Complaint need not contain “detailed factual allegations” to survive a motion to
dismiss, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555 (internal quotation marks and alteration
omitted).
The KSP argues that, as a department within the Executive Branch of the
Commonwealth of Kentucky, the Eleventh Amendment of the United States Constitution
entitles it to dismissal of the claims asserted against it based on sovereign immunity.
[Record No. 84] The KSP is correct regarding this argument. Hutsell v. Sayre, 5 F.3d 996,
999 (6th Cir. 1993). As a result, the claims asserted against the KSP will be dismissed.
III.
As noted above, the Power Companies contend that they are entitled to an
apportionment instruction regarding the KSP notwithstanding the fact that the claims
asserted against that entity are subject to dismissal because of its sovereign immunity
protection. [Record No. 89] Federal district courts have discretion to instruct juries, so long
as the instructions correctly state the substantive law, instruct on issues relevant to the case,
and do not mislead the jury. King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000).
Kentucky’s substantive law explicitly prohibits apportionment instructions against parties
dismissed based on absolute sovereign immunity. Therefore, this Court will not give the
requested apportionment instruction should this matter proceed to trial.
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The Kentucky Supreme Court directly addressed this issue in Jefferson Cnty.
Commonwealth Attorney’s Office v. Kaplan, 65 S.W.3d 916, 921-22 (Ky. 2001). In that
case, Puckett sued his attorney, Kaplan, for legal malpractice regarding Kaplin’s
representation of him in a criminal case.

Id. at 918.

When Kaplan joined two state

prosecutors and a KSP chemist in the suit based on claims of indemnity, contribution, and
apportionment, the trial court dismissed his third-party complaint based of sovereign
immunity.

Id.

Like the Power Companies here, Kaplan argued for an apportionment

instruction under K.R.S. § 411.182. Id. at 921. This statutory section requires that an
apportionment instruction be given “in all tort actions, including products liability actions,
involving fault of more than one (1) party to the action, including third-party defendants and
persons who been released under subsection (4) of [the] section.” Subsection (4) governs
parties released by settlement agreement. Id.
The Kaplan Court held that, following dismissal, the prosecutors and chemist were no
longer third-party defendants under § 411.182. As a result, Kaplan was not entitled to an
apportionment instruction. 65 S.W.3d at 922. In Lexington-Fayette Urban Cnty. Gov’t v.
Smolcic, 142 S.W.3d 128, 134-35 (Ky. 2004), the Kentucky Supreme Court further explained
the reason for its holding in Kaplan: “Absolute immunity refers to the right to be free, not
only from the consequences of the litigation’s results, but from the burden of defending
oneself altogether.” (internal quotation marks and citation omitted)
In attempting to avoid Kentucky’s rule against an apportionment instruction in this
type of case, the Power Companies cite the Sixth Circuit’s decision in Grimes, 355 F.3d 566.
However, the Grimes Court never reached the apportionment issue in its decision.

In

Grimes, a passenger of a truck brought suit against the manufacturer and distributor of the
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vehicle. The defendants then filed a third-party complaint against the Kentucky Department
of Transportation, alleging claims for negligence and failure to warn. Id. at 571. After the
jury returned a defense verdict, the plaintiff appealed the apportionment instructions. Id. at
573.
In their response, the Power Companies quote from a section of the opinion
explaining the lower court’s decision. [Record No. 89] The Sixth Circuit does acknowledge
that, under Kentucky law, the defendants needed to file a third-party complaint before
seeking contribution from the Department of Transportation. Grimes, 355 F.3d at 571.
However, the Court ultimately avoided the apportionment issue, holding that the plaintiff’s
appeal of the apportionment instruction had been mooted by virtue of the jury’s verdict in
favor of the defendants. Id. at 573.
Also relying on Grimes, the United States District Court for the Western District of
Kentucky has held in an unreported decision that Kentucky’s prohibition on apportionment
instructions only applies to cases involving absolute sovereign immunity. Hayes v. MTD
Prods., Inc., No. 3:05CV-781-H, 2007 WL 437687, at *2 (W.D. Ky. Feb. 5, 2007). The
court in Hayes observed that the “Kentucky legislature has partially abrogated the state’s
immunity via the Board of Claims Act.” Id. It then concluded that, because the government
agency in question was at least potentially liable to the Board of Claims, the reasoning from
Kaplan and Smolcic did not apply and an apportionment instruction might be appropriate if
the facts supported it. Id.
The reasoning from Hayes has no application here because the Power Companies
cannot pursue a remedy against KSP with the Board of Claims. Kentucky Revised Statute §
44.070(1) bars the Board of Claims from hearing “collateral or dependent claims which are
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dependent on loss to another and not the claimant.” The Kentucky Court of Appeals has held
that claims for indemnification and contribution qualify as “collateral or dependent claims,”
preventing the Board of Claims from exercising jurisdiction over them. Poole Truck Line,
Inc. v. Commonwealth, Transp. Cabinet/Dep’t of Highways, 892 S.W.2d 611, 612-14 (Ky.
App. 1995). Therefore, KSP’s absolute sovereign immunity shields it from suit and a
potential apportionment instruction.
IV.
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
1.

Third-Party Defendant Kentucky State Police’s motion to dismiss [Record No.

84] is GRANTED. The claims contained in the Third Party Complaint filed against ThirdParty Defendant Kentucky State Police [Record No. 66] are DISMISSED, with prejudice.
2.

Defendants/Third-Party Plaintiffs Kentucky Power Company’s and Consol of

Kentucky, Inc.’s request for an apportionment instruction [Record No. 89] is DENIED.
This 22nd day of September, 2015.

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