Great Northern Insurance Company v. Recall Total Information Management, Inc. et al
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 8/1/2014. (aos, Deputy Clerk)
UNITED STATES IJISTRICT COURT
DISTRICT OF :\IARYLANIJ
GREAT NORTHERN INSURANCE
COMPANY, as subrogee o/Wilmer Cutler
Pickering lIale and Dorr, LI.P,
Civil Action No. TDC-I3-1829
RECALL TOTAL INFORMATION
MANAGEMENT, INC., el ul.,
This matter is before the Court on a Motion to Dismiss Counts IV. V. and VI of PlaintilT
Great Northern Insurance Company's First Amended Complaint by Defendants Kelly Services
Inc. ("Kelly Services") and Defendant Lorenzo Piard ("Piard'") (collectively, "Defendants").
ECF No. 30. At issue is whether Plaintitf has properly alleged that (1) Defendants owed a duty
of care to Plaintiffs
subrogor. such that Plaintitr has sufliciently stated a claim for negligence
(Counts IV and V); and (2) Kelly Services is vicariously liable for Piard's allegedly negligent act
Having reviewed the pleadings and supporting documents. the Court finds no
hearing is necessary.
See Loeal Rule 105.6 (D. Md. 2014).
Defendants' Motion to Dismiss is DENIED.
For the follO\ving reasons.
Plaintiff is an insurance company doing business in rv1aryland.
this case are Recall Total Infonnation
The four defendants in
Inc. ("Recall Totar').
Destruction Services. Inc. ("Recall Secure"), Kelly Services. and Lorenzo Piard. At all relevant
times, Recall Total and Recall Secure (collectively, "'Recal!"') together operated a document
storage warehouse facility located in Landover, Maryland (the "Warehouse").
Pursuant to an
Agreement for Services with Recall. Kelly Services provided temporary workers for Recall's
Piard is a Maryland resident and temporary worker employed by Kelly Services and
assigned to work at the Warehouse.
Nonparty Wilmer Cutler Pickering Hale and DOfr LLP r'WilmerHale")
is a law firm with
an office in Washington. D.C. WilmerHale stored some of its business records, documents. and
other property (the '"property") at the \Varehouse, pursuant to a Master Services Agreement with
Recall. At all relevant times, PlaintilTinsured the property.
On June 28, 2012, "a large section ofthc roof of [the Warehouse] collapsed," killing a
Recall worker and causing the destruction of some of the property. Am. Compl. ~~ 17-18. ECF
No. 14. Pursuant to the terms and conditions of its insurance policy, PlaintifTpaid WilmerHale
significantly more than $75,000 for the value of the property and additional expenses incurred as
a result of the collapse,
Plaintiff alleges that it is "subrogated to the rights of Wilmer Hale to the
extent of its payments."
/d. ~ 20.
On June 22, 2013, Plaintiff filed a complaint asserting elaims solely against Recall for
gross negligence, breach of contract and warranty, and bailment.
Comp\., ECF No. l.
December 19.2013, the Court granted in part a Motion to Dismiss tiled by Recall, dismissing
Unless otherwise noted, the facts are derived from Plaintilrs
First Amended Complaint, ECF
without prejudice Plaintiffs
gross negligence claim. Mem. Op. 5-6 (Williams. J.). ECF No. 12.
The Court did not rule on the other two claims and granted Plaintiff 30 days to tile an amended
On January 17, 2014, PlaintitT filed its First Amended Complaint. adding Kelly Services
and Piard as defendants.
Among other claims, Plaintiff alleged that Kelly Services assigned
Piard to Recall's Warehouse but failed to confinn that Piard •• as properly trained. qualified. and
certified to operate the order picker and other equipment used at the Warehouse.
alleged that Recall then allowed Piard to operate the order picker even though he was not
properly trained and certilied to do so, as required by Maryland Occupational Safety and Health
("'MOSH") regulations and by Recall"s standard operating procedures and policies.
Plaintiff also asserted that Piard "carelessly and recklessly" operated an order picker
without the proper certification and training, and struck an overstressed storage rack. causing it
;.'to tip over onto an adjoining rack, which resulted in a domino efTect of collapsing rack
Am. Compl. ~ 51. These collapsing racks struck a building support column, which
led to the partial roof collapse that killed a Recall worker and destroyed the property.
On March 14, 2014, Kelly Services and Piard tiled this fl"lotion to Dismiss. The Court
addresses in a separate opinion Recall's Moti()O to Dismiss. ,,',;hich is also before the Court.
RecaJrs Mot. Dismiss Am. Comp!.. ECF No. 30.
A. Legal Standard
A court must deny a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for
failure to state a claim where the complaint alleges enough facts to state a plausible claim for
relief. Ashcroft ". Iqhal. 556 U.S. 662, 678 (2009) (quoting Bell All. Carp.
TlI'omhly. 550 U.S.
544, 570 (2007».
A claim is plausible v,'hen ,.the plaintiff pleads factual content that allows the
Court to draw the reasonable inference that the defendant is liablc for the misconduct alleged:'
!d. "Rule 12(b)(6) 'docs not countenance ...
dismissals bascd on a judgc's
disbelief of a
Colon Health Centers of Am,. LLC v. Hazel. 733 F.3d 525,
545 (4th Cir. 2013) (quoting Neitzke v. Williams, 490, U.S. 319, 327 (1989)).
assessing whcther this standard has been met, the Court must examine the complaint as a whole,
consider the factual allegations in the complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. AlbriKht
Oliver. 510 U.S. 2b6, 268 (1994); Lambeth
of Davidson Cnty., 407 F.3d 266. 268 (4th Cir. 2005) (citing Scheller
416 U,S, 232, 236 (1974».
Legal conclusions or condusory statements do not suffice and are
not entitled to the assumption of truth. Iqbal, 556 U.S. at 678.
To state a claim for negligence under Maryland law, a plaintiff must allcge that "(1) that
the defendant was under a duty to protect the plaintiff from injury. (2) that the defendant
breached that duty, (3) that the plaintiff suffercd actual injury or loss. and (4) that the loss or
injury proximately resulted from the defendant's
Upjohn Co., 879 A.2d 1088, 1092 (Md. 2004).
duty to Plaintitrs
breach of the duty,"
Doe \" Pharmacia &
Here, Defendants argue that the Court should
negligence claims against them because they owed no legally cognizable tort
Kelly Services also argues that even if the Court
concludcs that Piard had such a duty, Kelly Services is not vicariously liablc for Piard's alleged
negligent acts because he was acting as Recall's "borrowed servant" at the time of those acts.
As set forth below, the Court concludes that the Complaint properly alleged that Piard
owed a duty of care to Recall's customers who storcd property at the Warehouse, including
and that Kelly Services owed Recalrs
customers a duty to hire and train its
Any dispute as to \"hetber liability for Kelly Services' duty was shined to Recall by
contract is a question of fact that would be inappropriate for the Court to determine at the
The Court also concludes that the Amended Complaint properly alleged that
Kelly Services is vicariously liable for Piard's alleged negligent acts. Thus, Plaintitrs
Complaint properly states claims for negligence in Counts IV and V and re5pondeaf superior
liability in Count VI.
Defendants' Tort Ilutics
Altbough there is "no precise formula" for detennining
the existence of a tort duty
between parties, among the key factors that Maryland courts generally consider are: the nature
of the harm likely to result from a failure to exercise due care. the foreseeability of the harm. and
the relationship between the parties. See Doe 879 A.2d at 1092-93; Jacques v. First Nat 'I. Bank
515 A.2d 756, 759-60 (Md. 1985). In this instance, the nature of the hann-
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