Moore v. Wayne Smith Trucking Incorporated et al

Filing 33

ORDER AND REASONS - defendants Speilman'S and Wayne Smith Trucking's and Northland Insurance's unopposed partial motions 15 16 to dismiss and for judgment on the pleadings are GRANTED.. Signed by Chief Judge Sarah S. Vance on 2/4/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OMEGA JEANETTA MOORE,
Individually and On Behalf of
and as Natural Tutrix of ZETA
ROSS

CIVIL ACTION

VERSUS

NO: 14-1919

WAYNE SMITH TRUCKING, INC.,
JEFFREY C. SPEILMAN, and
NORTHLAND INSURANCE COMPANY

SECTION: R(4)

ORDER AND REASONS
Defendants Wayne Smith Trucking, Inc. and Jeffrey C. Speilman
move for partial dismissal for failure to state a claim and for
judgment on the pleadings on all claims asserted by plaintiff,
individually, and on the claim for punitive damages asserted by
plaintiff, individually and on behalf of and as natural tutrix of
her minor child, Zeta Ross.1 Defendant Northland Insurance Company
also moves for partial dismissal for failure to state a claim and
for judgment on the pleadings on the claim for punitive damages
asserted by plaintiff, individually and on behalf of and as natural
tutrix of her minor child, Zeta Ross.2
the motions.3

Plaintiff does not oppose

For the following reasons, the Court grants the

motions.

1

R. Doc. 15.

2

R. Doc. 16.

3

R. Doc. 18.

I. Background
Plaintiff Omega Moore, individually and on behalf of and as
natural tutrix of her minor child, Zeta Ross, filed this action
against defendants Wayne Smith Trucking Inc., Jeffrey C. Speilman,
and Northland Insurance Company in the 24th Judicial District Court
for the Parish of Jefferson, State of Louisiana, on June 30, 2014.4
Defendants timely removed this matter on August 21, 2014.5
This action arises out of an accident occurring on February
27, 2014 in Gretna, Louisiana, when a tractor-trailer truck, owned
by Wayne Smith Trucking, Inc. and driven by Jeffrey C. Speilman,
struck and killed Deron Ross.6

In her complaint, plaintiff alleges

that Speilman was driving the truck in the course and scope of his
employment with Wayne Smith Trucking, and that Northfield Insurance
issued an insurance policy, policy number TF658558, which provided
insurance coverage for the truck.7

Plaintiff further alleges that

Speilman's negligent and reckless acts and Wayne Smith Trucking's
intentional, willful, wonton, reckless, and/or negligent acts
caused the death of Mr. Ross.8

4

R. Doc. 1-1.

5

R. Doc. 1.

6

R. Doc. 1-1 at 2.

7

Id. at 2, 4-5.

8

Plaintiff asserts that Northland

Id. at 2-3.
2

Insurance

is

also

liable

for

the

negligence/recklessness

of

Speilman and Wayne Smith Trucking.9
Plaintiff, individually and on behalf of and as natural tutrix
to Zeta Ross, seeks damages for: (1) past, present, and future pain
and suffering; (2) past, present, and future loss of consortium and
society; (3) past, present, and future mental anguish; (4) past,
present, and future lost income and support; (5) punitive and
exemplary damages; and (6) any other damages which may be proven at
trial.10
Defendant Northland Insurance answered plaintiff's complaint
on August 25, 2014,11 and defendants Speilman and Wayne Smith
Trucking answered plaintiff's complaint on September 5, 2014.12
On September 22, 2014, defendants Speilman and Wayne Smith
Trucking moved for partial dismissal under Rule 12(b)(6) and for
judgment on the pleadings under Rule 12(c) on all claims asserted
by plaintiff in her individual capacity and on all claims for
punitive damages.13 They contend that plaintiff, individually, does
not have any cognizable claims because she was not married to Mr.

9

Id. at 5.

10

Id. at 4.

11

R. Doc. 6.

12

R. Doc. 10.

13

R. Doc. 15.
3

Ross at the time of his death.14

Additionally, they contend that

plaintiff cannot assert a claim for punitive damages, either in her
individual capacity or on behalf of or as the natural tutrix of
Zeta Ross, because punitive damages are not cognizable under the
applicable Louisiana law.15
On September 23, 2014, defendant Northland Insurance also
moved for partial dismissal under Rule 12(b)(6) and for judgment on
the pleadings under Rule 12(c) on plaintiff's claim for punitive
damages on the basis that the insurance policy at issue does not
provide coverage for punitive damages.16
On October 16, 2014, plaintiff filed two letters with the
Court stipulating that she does not oppose the defendants' motions
to the extent that they pertain to all claims asserted on behalf of
herself, individually, and to all claims for punitive damages.17
Plaintiff, however, has not withdrawn the claims defendants seek to
dismiss.
On October 22, 2014, plaintiff filed an amended complaint,
which alleged that Zeta Ross is a child of the decedent, Mr. Ross,
and that Mr. Ross endured pain and suffering as a result of the

14

R. Doc. 15-1 at 1.

15

Id.

16

R. Doc. 16-1 at 2.

17

R. Doc. 18.
4

accident.18

Plaintiff, as natural tutrix of Zeta Ross, claims

wrongful death damages in the amount of $2,500,000 for: (1) mental
and emotional pain and suffering; (2) loss of society and service;
(3) loss of support; (4) loss of consortium and affection; and (5)
all other damages to be shown at trial.19

Plaintiff, as natural

tutrix of Zeta Ross, further claims survival damages in the amount
of $3,500,000 for: (1) physical pain and suffering; (2) mental and
emotional pain and suffering; (3) medical expenses; (4) preimpact
fear; (5) lost wages, earnings, diminished work capacity, and other
economic

support;

and

(5)

loss

of

consortium,

society,

and

affection.20
Because plaintiff did not withdraw the claims defendants seek
to dismiss, defendants filed motions to apply their original
motions to dismiss and for judgment on the pleadings to plaintiff's
amended complaint.21

II. Legal Standard
A motion to dismiss under Rule 12(b)(6) and a motion for
judgment on the pleadings under Rule 12(c) are subject to the same
standard.

Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)

18

R. Doc. 22 at 2.

19

Id. at 2-3.

20

Id. at 3.

21

R. Docs. 23 & 24.
5

(citing Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004)). To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
enough facts 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. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible “when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.”

Id.

that

the

A court must

accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff.

Lormand v. U.S. Unwired,

Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996).

But the Court is not bound to accept as

true legal conclusions couched as factual allegations.

Iqbal, 556

U.S. at 678.
A legally sufficient complaint must establish more than a
“sheer possibility” that plaintiff's claim is true.

Id.

It need

not contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the elements
of a cause of action.

Id.

In other words, the face of the

complaint must contain enough factual matter to raise a reasonable
expectation that discovery will reveal evidence of each element of
the plaintiff's claim.

Lormand, 565 F.3d at 257.

If there are

insufficient factual allegations to raise a right to relief above
the speculative level, or if it is apparent from the face of the
6

complaint that there is an insuperable bar to relief, the claim
must be dismissed.

Twombly, 550 U.S. at 555; Jones v. Bock, 549

U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th
Cir. 2007).

III. Discussion
A. Speilman's and Wayne Smith Trucking's Motion to Dismiss and
for Judgment on the Pleadings
1. Applicable Law
Because the Court's jurisdiction is based on diversity of
citizenship, the choice of law rules of Louisiana, the forum state,
apply.

See Klaxon Co. v. Stenton Elec. Mfg. Co., 313 U.S. 487

(1941); Williams v. Liberty Mut. Ins. Co., 741 F.3d 617, 620 (5th
Cir. 2014) (citations omitted).

Article 3543 of the Louisiana

Civil Code provides that “[i]ssues pertaining to standards of
conduct and safety are governed by the law of the state in which
the conduct that caused the injury occurred.”
issue in this case occurred in Louisiana.

The accident at

Thus, the Court applies

Louisiana substantive law.
2. Claims Asserted by Plaintiff in Her Personal Capacity
Plaintiff filed suit, individually and as natural tutrix of
Zeta Ross, seeking wrongful death damages and survival damages.
Defendants Speilman and Wayne Smith Trucking contend that plaintiff
cannot assert a claim for survival damages or wrongful death

7

damages in her individual capacity under Louisiana law because she
was not married to Mr. Ross at the time of his death.
Louisiana Civil Code article 2315.1 provides for survival
actions and article 2315.2 provides for wrongful death actions.
Both Articles allow the "surviving spouse and child or children of
the deceased, or either the spouse or the child or children" the
right to bring suit to recover damages.

Plaintiff does not allege

that she was Mr. Ross's spouse at the time of his death or that she
is entitled to spousal standing.
the

Court

that

she

does

Moreover, plaintiff has advised

not

oppose

defendant's

motion.22

Accordingly, to the extent plaintiff asserts a wrongful death or
survival action in her personal capacity, her claim is dismissed.
3. Claim for Punitive Damages
Plaintiff, individually and on behalf of and as natural tutrix
of Zeta Ross, also seeks punitive damages.

Under Louisiana law,

punitive damages are available only when expressly authorized by
statute.

Ross v. Conoco, Inc., 828 So. 2d 546, 555 (La. 2002).

Louisiana Civil Code article 2315, et seq. governs plaintiff's
claims.
under

Under the Article, punitive damages are authorized only
article

2315.3

(child

pornography),

article

2315.4

(intoxicated drivers), article 2315.7 (child molestation), and
article 2315.8 (domestic abuse).

Plaintiff's allegations do not

implicate any of these limited circumstances where punitive damages

22

R. Doc. 18.
8

are authorized under Louisiana law. Plaintiff has therefore failed
to state a claim for punitive damages.

Accordingly, plaintiff's

claim for punitive damages is dismissed.
B. Northland Insurance's Motion to Dismiss and for Judgment on
the Pleadings
Defendant Northland Insurance moves separately to dismiss
plaintiff's claim for punitive damages against it because the
insurance policy at issue excludes coverage for punitive damages.
The Court need not reach this argument because, as the Court has
already determined, plaintiff fails to state a claim that would
entitle

her

to

punitive

damages.

Moreover,

plaintiff

has

stipulated that she does not oppose Northland Insurance's motion.
Accordingly, the Court dismisses plaintiff's claim for punitive
damages against Northland Insurance.

IV. Conclusion
For the foregoing reason, defendants Speilman's and Wayne
Smith

Trucking's

and

Northland

Insurance's

unopposed

partial

motions to dismiss and for judgment on the pleadings are GRANTED.

New Orleans, Louisiana, this 4th

day of February, 2015.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

9