Maysey v. Henkel Corporation et al
MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge H. Brent Brennenstuhl on 4/10/2018 granting 83 Motion for Leave to File Third-Party Complaint. The Clerk of court is directed to file the tendered third-party complaint and issue the summons. cc: Counsel(JM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00108-GNS
NATHANIEL EDWARD MAYSEY
and NEMAK USA INC.
Defendant Henkel Corporation has moved the Court, pursuant to Fed. R. Civ. P. 14(a),
for leave to file a third party complaint against Magna-Tech Manufacturing, LLC and Colorado
Express Services, Inc. d/b/a Express Services, Inc. (DN 83).
Plaintiff, Nathaniel Edward
Maysey, has filed a response (DN 91), and Henkel has filed a reply (DN 95). For the reasons set
forth below, the motion is granted.
NATURE OF THE MOTION
Maysey filed a tort action in the Barren Circuit Court seeking to hold Henkel and
codefendant Nemak USA, Inc. liable for injuries he suffered while working at a Magna-Tech
Manufacturing, LLC facility in Glasgow, Kentucky (DN 1-1 PageID # 10-28). Maysey claims
he was directed to operate an impregnation machine without a point of operation guard or “safety
lid” or safety light and that the machine was not properly maintained (DN 1-1 PageID # 10-28).
Henkel subsequently removed the action to this Court (DN 1).
Magna-Tech apparently hired Maysey as a temporary employee through his employer,
Express Services (Id.). Maysey has asserted a worker’s compensation claim against Express
Services (DN 83 PageID # 497 citing Kentucky Workers’ Compensation Claim No. 201681368). Express Services and Magna-Tech are not parties to this action. Henkel seeks leave to
assert third-party claims against Express Services and Magna-Tech for the purpose of obtaining
an apportionment of fault instruction for Maysey’s injuries or, in the alternative, to obtain a
judgment of contribution and/or indemnification against them in the full amount of any judgment
that may be rendered against Henkel and in favor of Maysey or the Intervening Plaintiff,
Sedgwick Claims Management Services, Inc.1 (DN 83-1 Proposed Third-Party Complaint).
The Federal Rules of Civil Procedure provide as follows:
A defending party may, as third-party plaintiff, serve a summons
and complaint on a nonparty who is or may be liable to it for all or
part of the claim against it. But the third-party plaintiff must, by
motion, obtain the court's leave if it files the third-party complaint
more than 14 days after serving its original answer.
Fed. R. Civ. P. 14(a)(1). "The decision of whether to grant a motion for leave to implead is a
matter committed to the discretion of the district court, and the exercise of discretion is
essentially a process of balancing the prejudices."
The Sixth Circuit has stated that the
promptness of a motion for leave to implead a third-party is "an urgent factor" guiding a court's
exercise of discretion. Gen. Elec. Co. v. Irvin, 274 F.2d 175, 178 (6th Cir.1960). Other factors
include: (i) the motion's timeliness; (ii) the likelihood of trial delay; (iii) potential for
complication of issues; and (iv) prejudice to the original plaintiff. Botkin v. Tokio Marine &
Intervening Plaintiff, Sedgwick Claims Management Services, Inc., is seeking to recover sums it claims to have
paid to Maysey in connection with his related workers’ compensation claim (DN 83-1 PageID # 504).
Nichido Fire Ins. Co ., Ltd., 956 F.Supp.2d 795, 802 (E.D.Ky.2013). Maysey has not objected to
the motion on any of these grounds (DN 91 PageID # 611-13).
“The purpose of Rule 14 is to permit additional parties whose rights may be affected by
the decision in the original action to be joined so as to expedite the final determination of the
rights and liabilities of all the interested parties in one suit.” Am. Zurich Ins. Co. v. Cooper Tire
& Rubber Co., 512 F.3d 800, 805 (6th Cir. 2008) (citations omitted). The Sixth Circuit has
explained as follows:
Third-party pleading is appropriate only when the third-party
defendant’s liability to the third-party plaintiff is dependent on the
outcome of the main claim; one that merely arises out of the same
set of facts does not allow a third-party defendant to be impleaded.
A defendant attempting to transfer the liability asserted against him
by the original plaintiff to the third-party defendant is therefore the
essential criterion of a third-party claim.
defendant's claim against a third-party defendant cannot simply be
an independent or related claim, but must be based upon the
original plaintiff's claim against the defendant.
Id. Thus, the underlying purpose of Rule 14 is “‘to promote economy by avoiding the situation
where a defendant has been adjudicated liable and then must bring a totally new action against a
third party who may be liable to him for all or part of the original plaintiff's claim against him.’”
Id. (quoting 6 Wright, Miller, Kane, Fed. Prac. & Proc.: Civ.2d § 1441 at 289–90 (2d ed.1990)).
Under Kentucky law indemnity, contribution, and apportionment are three related but
Stanford v. United States, 948 F. Supp. 2d 729, 744 (E.D. Ky. 2013).
“Apportionment is the most modern of the three doctrines, codified by the legislature in 1998.”
Id. (citing Ky. Rev. Stat. § 411.182, Degener v. Hall Contracting Corp., 27 S.W.3d 775, 779 (Ky.
2000)). “[A]pportionment spreads the liability for a plaintiff’s claims among the tortfeasors
based on their relative fault.” Stanford, 948 F. Supp. 2d at 744 (citing Degener, 27 S.W.3d at
779). When a potential tortfeasor is not named as a defendant in the complaint, a named
defendant can seek leave of court to file a third-party complaint against the as yet unnamed party
to ensure that a share of the total liability is apportioned to them. Id.
Under Kentucky law, contribution is also a statutory right that existed long before
Kentucky adopted the doctrines of comparative negligence and several liability. Id. (citation
omitted). Thus, under the doctrine of contribution, tortfeasor A may seek from a joint tortfeasor
the proportional share of the amount of the plaintiff’s judgment against tortfeasor A. Id. (citation
Under Kentucky law, indemnity is the oldest of the three doctrines and, unlike the other
two, is based on a common-law right. Id. at 744-45 (citation omitted). Because this right existed
before the creation of several liability, it does not divide up liability between the tortfeasors. Id.
at 745 (citation omitted).
Thus, a tortfeasor who is only constructively or secondarily
responsible for plaintiff’s damages may use this doctrine to seek total indemnification from the
tortfeasor who is primarily liable for the plaintiff’s damages. Id. (citation omitted).
Maysey has no objection to Express Services being added as a third-party defendant (DN
91 PageID # 611-13). However, Maysey asserts that the Court’s order should direct that, prior to
being granted an apportionment instruction for Express Services, Henkel must submit sufficient
evidence for the jury to find that Express Services was at fault and the fault of Express Services
was a substantial factor in causing Maysey’s injuries (Id.). Henkel responds that whether and
how to apportion fault between the parties should be reserved for argument at a later date. The
Court agrees, the only issue here is whether Henkel can seek leave of court to file a third-party
complaint against Express Services to ensure that a share of the total liability is apportioned to
Express Services. See Stanford, 948 F. Supp. 2d at 744.
Maysey objects to Magna-Tech being added as third-party defendant (DN 91 PageID #
611-13). Maysey asserts that Magna-Tech is a solely owned subsidiary of Henkel that is
managed and controlled by Henkel (Id.). Maysey argues that an apportionment of liability
between a parent corporation, Henkel, and its solely owned and controlled subsidiary, MagnaTech, would be improper (Id.). Further, Maysey contends that Henkel’s proposed third-party
complaint fails to state a cause of action for apportionment because it does not allege that
Magna-Tech was at fault and that the fault was a substantial factor in causing Maysey’s injuries
Henkel points out that it has set forth valid claims against the proposed third-parties (DN
95 PageID # 658-61). Henkel explains that the issue of whether the claims in its proposed thirdparty complaint are valid or supported by evidence is not a proper consideration at this time (Id.).
Rather such issues should be determined at trial or by separate motion practice (Id.). Henkel
asserts that the proposed third-party complaint sets forth valid causes of action for
indemnification and requests apportionment of fault pursuant to Ky. Rev. Stat. § 411.182 (Id.).
Maysey has not cited any authority supporting his position that apportionment of liability
between a parent corporation, Henkel, and its solely owned subsidiary, Magna-Tech, would be
improper (Id.). Henkel asserts that Maysey’s reasoning would require an owner to answer for
the acts of its subsidiary, effectively ignoring laws pertaining to piercing the corporate veil and
blurring the careful distinctions between corporate structures altogether (Id. citing Boggs v. Blue
Diamond Coal Co., 590 F.2d 655, 661 and 663 (6th Cir. 1979) (“[o]wners may elect to divide
their business into parent and subsidiary corporations entitled to respect as separate legal
entities”)). Additionally, Henkel provides authority for its position that Kentucky courts and
federal courts interpreting Kentucky law have permitted apportionment of fault to the plaintiff’s
employer and another potentially negligent third-party in order to avoid being held unfairly
accountable for others’ negligence (Id.). Additionally, Henkel asserts that whether and how to
apportion fault between the parties should be reserved for argument at a later date (Id.).
The Court concludes that the proposed third-party complaint is appropriate because
Express Services and Magna-Tech’s liability to Henkel is dependent on the outcome of
Plaintiff’s claims against Henkel. The question of whether Henkel can seek apportionment
against Magna-Tech is not a proper consideration at this time. The same is true with regard to
Maysey’s other arguments regarding the validity of the claims and whether they are supported by
evidence. Such issues are determined by motion practice after the third-party complaint is filed
and/or at trial. Therefore, the Court concludes that leave should be granted to file the proposed
IT IS HEREBY ORDERED that Henkel’s motion for leave to file a third-party
complaint (DN 83) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of court is directed to file the tendered
third-party complaint and issue the summons (DN 83-1).
April 10, 2018
Counsel of Record
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