Auto-Owners Insurance et al v. Aspas et al
Filing
90
MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge Dave Whalin on 4/19/2017 granting 58 First Motion to Amend Complaint; denying 60 Second Motion to Amend Complaint. cc: Counsel(JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-00189-DJH
AUTO-OWNERS INSURANCE,
ANGELA BURTON, and JENNIFER HELTON
PLAINTIFFS
V.
PAUL ASPAS, LANDSTAR INWAY, INC.,
and VALLEY TIRE COMPANY
DEFENDANTS
MEMORANDUM OPINION
AND ORDER
Two motions are currently before the Court. First, Plaintiff Auto-Owners Insurance
Company seeks leave to file its First Amended Complaint, to correct its name and add defendants.
(DN 58). Defendants did not respond. Second, Plaintiffs Angela Burton and Jennifer Helton seek
leave to file their Second Amended Complaint, to add claims of gross negligence in hiring and
supervision and punitive damages. (DN 60). Defendants responded in opposition. (DN 68). These
matters are ripe for adjudication.
Background
In January of 2014, Plaintiffs Angela Burton (“Burton”) and Jennifer Helton (“Helton”)
were traveling in a vehicle on I-65 South when the tires from Defendant Paul Aspas’ (“Aspas”)
semi-tractor truck came off his trailer and struck Burton’s vehicle. (DN 1-2, Complaint at ¶¶ 7-9;
Answer at ¶ 9). Two years later, Plaintiffs Burton and Helton filed a Complaint in Hardin County
Circuit Court alleging claims of negligence against Aspas and his employer, Landstar Inway, Inc.
(“Landstar”). (Id. Complaint at ¶ 5). Plaintiff Auto-Owners Insurance Company (“Auto-Owners
Insurance”) also filed a Complaint against Aspas pertaining to the same motor-vehicle accident.
(DN 1-2, Complaint at ¶¶ 5-6; Motion to Transfer at ¶ 2). The Hardin County Circuit Court
consolidated the Plaintiffs’ cases. (DN 1-2, Agreed Order to Consolidate).
Defendants Aspas and Landstar timely removed the action to this Court under diversity
jurisdiction, 28 U.S.C. § 1332, on March 29, 2016. (DN 1). In August of 2016, Burton and Helton
were granted leave to file their First Amended Complaint to add Valley Tire Company (“Valley
Tire”) as a defendant. (DN 18; DN 19). Valley Tire replaced and installed the tires on Aspas’
tractor-trailer on the day before the accident. (DN 19, at ¶ 15). Now, Plaintiff Auto-Owners
Insurance seeks leave to file their first amended complaint (DN 58), and Plaintiffs Burton and
Helton seek leave to file their second amended complaint (DN 60).
Standard of Review
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that leave to amend a
pleading should be “freely given when justice so requires.” Birchwood Conservancy v. Webb, 302
F.R.D. 422, 424 (E.D. Ky. 2013) (Fed.R.Civ.P. 15(a)(2)). A district court has “considerable
discretion” in deciding whether to grant a motion to amend. See Leisure Caviar, LLC v. U.S. Fish
& Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010) (citing Morse v. McWhorter, 290 F.3d 795, 799
(6th Cir. 2002)). In light of this liberal view, a motion to amend a pleading, “should be denied if the
amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the
opposing party, or would be futile.” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (citing
Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995)).
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A proposed amendment to a pleading is futile if the amendment “could not withstand a
Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 410 (6th
Cir. 2000). In order to survive a motion to dismiss, the pleading “must contain 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, 677 (2009) (quoting Bel Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility 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. Further, a district
court must “(1) view the complaint in the light most favorable to the plaintiff and (2) take all well
pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th
Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)).
Auto-Owners Insurance’s First Motion to Amend
Auto-Owners Insurance specifically wants to correct its party-name to “Owners Insurance
Company” and wants to add Valley Tire, Landstar, and Old Republic Insurance Co. (“Old
Republic”) as defendants to its existing claims. (DN 58). As noted above, Valley Tire and Landstar
are already named as Defendants in this action. Old Republic, however, is not currently a named
defendant in this case. Auto-Owners Insurance’s First Motion to Amend was timely filed on
February 1, 2017, in accordance with the parties’ Amended Scheduling Order for filing “motions
to amend pleadings and/or join parties[.]” (DN 31). Because Defendants did not respond and did
not show that amendment would be prejudicial, the Court finds the ends of justice favor granting
Auto-Owners Insurance’s motion.
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Burton and Helton’s Second Motion to Amend
Burton and Helton currently seek leave to add claims of gross negligence against Valley
Tire. (DN 60-1, at ¶¶ 20-22). To summarize, Burton and Helton allege that Valley Tire was grossly
negligent in the hiring, staffing, training, and supervision of its employees, servants, and agents,
and consequently they are entitled to punitive damages. (Id.). Valley Tire’s response separates
these proposed allegations into three claims: negligent hiring, negligent supervision, and punitive
damages, and argues amendment would be futile. (DN 68, at pp. 2-4).
To establish a claim of negligent hiring under Kentucky law a plaintiff must meet two
elements: “(1) the employer knew or reasonably should have known that the employee was unfit
for the job for which he was employed, and (2) the employee’s placement or retention at that job
created an unreasonable risk of harm to the plaintiff.” Stalbosky v. Belew, 205 F.3d 890, 894 (6th
Cir. 2000) (citing Oakley v. Flor-Shin, Inc., 964 S.W.2d 438, 442 (Ky. Ct. App. 1998)). Whereas,
a negligent supervision claim requires a plaintiff prove the employer was “negligent or reckless . .
. in the employment of improper persons or instrumentalities in work involving risk of harm to
others : in the supervision of the activity . . .” Dempsey v. City of Lawrenceburg, 2010 WL 3825
473, at *7 (E.D. Ky. Sept. 23, 2010) (quoting Restatement (Second) of Agency § 213)); see also
Smith v. Isaacs, 777 S.W.2d 912 (Ky. 1989).
Here, Burton and Helton have made no factual allegations in their proposed amended
complaint to establish the elements of either a negligent hiring or negligent supervision claim.
Although their “motion” refers to the tire-tech’s deposition testimony that he was a brand new hire
and “had a history of driving under the influence” (DN 60, at p. 2), their “proposed amended
complaint” does not include these factual allegations. Likewise, their motion discusses that the
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tire-tech had not been properly trained, that he should not have been alone servicing the tires of the
trailer involved in the accident, and that he was not aware of the safety standards required for the
maintenance (DN 60, at pp. 2-3), but these factual allegations are not included in the proposed
amended complaint. Instead, their proposed amended complaint rests solely on bare assertions that
Valley Tire was negligent in hiring and supervising its agents, servants, and employees. Because
these allegations are “devoid of ‘further factual enhancement[,]’” they cannot survive a motion to
dismiss and amendment would be futile. Cambron v. RK Shows, Inc., 3:14-CV-00368-TBR, 2014
WL 3419128, at *5 (W.D. Ky. July 14, 2014) (quoting Twombly, 550 U.S. at 557).
The same is true for Burton and Helton’s proposed claims of gross negligence and
proposed relief of punitive damages. Pursuant to KRS § 411.184(2), punitive damages are
available “if a plaintiff proves by clear and convincing evidence that a defendant acted with fraud,
oppression, or malice.” Turner v. Werner Enterprises, Inc., 442 F. Supp. 2d 384, 385 (E.D. Ky.
2006). In addition, the Kentucky Supreme Court has found that “notwithstanding the statute,
punitive damages are still available” if gross negligence is proven. Id. (citing Williams v. Wilson,
972 S.W.2d 260, 262-65 (Ky. 1998)). The prevailing standard for gross negligence in Kentucky is
defined as “wanton or reckless disregard for the safety of other persons.” Kinney v. Butcher, 131
S.W.3d 357, 359 (Ky. Ct. App. 2004). It is not necessary that the jury find the Defendants acted
with express malice, but, rather, “it is possible that a certain course of conduct can be so
outrageous that malice can be implied from the facts of the situation.” Id. (citing Phelps v.
Louisville Water Co., 103 S.W.3d 46, 52 (Ky. 2003)).
Burton and Helton do no more than nominally mention “gross negligence” and “punitive
damages.” They put forth no facts to support that Tire Valley had “wanton or reckless disregard for
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the safety of other persons” or that Tire Valley’s course of conduct was outrageous. Amendment to
add these allegations, therefore, would be futile.
ORDER
IT IS HEREBY ORDERED that Auto-Owners Insurance’s First Motion to Amend
Complaint (DN 58) is GRANTED.
IT IS FURTHER ORDERED that Burton and Helton’s Second Motion to Amend
Complaint (DN 60) is DENIED.
April 19, 2017
Copies:
Counsel of Record
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