Aubuchon v. Tate Trucking, LLC et al

Filing 34

OPINION, MEMORANDUM AND ORDER (See Full Order). IT IS HEREBY ORDERED that Defendants' Motion to Dismiss, [Doc. No. 9 ], is granted in part and denied in part. IT IS FURTHER ORDERED that Counts II and IV are dismissed. Signed by District Judge Henry Edward Autrey on 9/25/2024. (JEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALLISON AUBUCHON,
Plaintiff,
v.
TATE TRUCKING, LLC, and
WENDIMU MITANO
Defendants.

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) Case No. 4:24CV189 HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Pursuant
to Federal Rule of Civil Procedure 12(b)(6), [Doc. No. 9]. Plaintiff has filed a
response to the Motion, to which Defendants have filed a reply. On September 5,
2024, the Court heard arguments on the Motion. For the reasons set forth below,
the motion is granted in part and denied in part.
Facts and Background 1
Plaintiff’s Petition alleges the following:
On February 24, 2022, Defendant Mitano, an employee of Defendant Tate
Trucking, while performing his duties on behalf of his employer, was driving
northbound on US Highway 61. Defendant Mitano caused his 2014 Freightliner

The recitation of facts is set forth for the sole purpose of this Opinion. It in no way relieves the
parties of the necessary proof of the facts in later proceedings.
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Corp Cascadia 125 to come into contact with the rear of another motorist on US
Hightway 61. The force of this collision created a chain reaction involving multiple
motor vehicles, which ultimately caused a third party to collide with the rear of
Plaintiff’s 2016 Cadillac ATS.
The Petition sets out a claim for Negligence against Defendant Mitano,
Count I; Negligence Per Se under RSMo § 304.0171.1 against Defendant Mitano,
Count II; Negligence against Defendant Tate Trucking, Count III; Negligence Per
Se under RSMo § 304.0171.1, against Defendant Tate Trucking, Count IV;
Negligent Hiring against Tate Trucking, Count V; Negligent Retention against Tate
Trucking, Count VI; and Negligent Supervision against Tate Trucking, Count VII.
Defendants move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure.
Discussion
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989). Rule 8(a)(2),
Fed. R. Civ. P., provides that a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” In Bell Atlantic Corp. v.
Twombly, the Supreme Court clarified that Rule 8(a)(2) requires complaints to
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contain “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.” 550 U.S. 544, 555 (2007); accord Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009).
In order “[t]o survive a motion to dismiss, a complaint must plead sufficient
factual matter to ‘state a claim to relief that is plausible on its face.’” Edwards v.
City of Florissant, 58 F.4th 372, 376 (8th Cir. 2023) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). “A claim is facially plausible if the plaintiff pleads facts that
allow the court to draw the reasonable inference that the Defendants is liable for
the misconduct alleged.” Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 59 F.4th
948, 953 (8th Cir. 2023) (internal quotation marks and alteration omitted) (quoting
Iqbal, 556 U.S. at 678)). “If, on the other hand, the plaintiff pleads facts that are
merely consistent with a Defendants’ liability, the complaint stops short of the line
between possibility and plausibility of entitlement to relief.” Id. (internal quotation
marks and citation omitted); accord Edwards, 58 F.4th at 377 (“[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not shown—that the pleader is
entitled to relief.” (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937)).
In deciding whether a complaint satisfies the plausibility test, the Court must
“accept ‘as true the complaint's factual allegations and grant[ ] all reasonable
inferences to the non-moving party.’” Park Irmat Drug Corp. v. Express Scripts
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Holding Co., 911 F.3d 505, 512 (8th Cir. 2018) (alteration in original) (quoting
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009)). This rule “is
inapplicable to legal conclusions,” which the Court may disregard. Iqbal, 556 U.S.
at 678. Likewise, “‘naked assertions devoid of further factual enhancement,’ do not
suffice, nor do ‘[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements.’” Roberson v. Dakota Boys & Girls Ranch, 42
F.4th 924, 928 (8th Cir. 2022) (quoting Iqbal, 556 U.S. at 678). With few
exceptions, the Rule 12(b)(6) analysis is constrained to factual matter alleged in the
complaint. See Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th
Cir. 2012) (“[T]he court generally must ignore materials outside the pleadings, but
it may consider some materials that are part of the public record or do not
contradict the complaint, as well as materials that are necessarily embraced by the
pleadings.” Id. (citations omitted)).
Discussion
Prior Settlement Agreement
Defendants move to dismiss the Petition arguing the parties entered into a
valid settlement agreement thereby resolving all claims against them. In support of
this argument, Defendants discuss emails between Plaintiff’s former attorney and
the claims adjuster assigned to Plaintiff’s case, Mark Sitler. Defendants contend the

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emails establish that all of Plaintiff’s claims were settled for $32,000, and
therefore, this action should be dismissed.
In response, Plaintiff argues the motion cannot be granted on this ground
because Defendants asks the Court to look outside the pleadings to extraneous
materials and should have been filed as a motion to enforce settlement. Defendants
respond by asking the Court to convert the Motion to Dismiss into a motion for
summary judgment.
The Court agrees with Plaintiff that a motion pursuant to Rule 12(b)(6) is not
the proper procedural basis to attempt to enforce a settlement if one exists. Rule
12(b)(6) tests the sufficiency of the complaint. The Court is limited in its analysis
to the allegations contained in the complaint and only those items outside the
allegations that are necessarily embraced by the complaint, matters subject to
judicial notice, and matters of public record. The Motion to Dismiss based on an
alleged settlement agreement is denied without prejudice to filing further pleadings
addressing the settlement issues.
Negligence Per Se
Defendants seek dismissal of Counts II and IV which assert negligence per
se claims against them.
“Whether negligence exists in a particular situation depends on whether or
not a reasonably prudent person would have anticipated danger and provided
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against it.” Lowdermilk v. Vescovo Bldg. & Realty Co., Inc., 91 S.W.3d 617, 628
(Mo. Ct. App. 2002). “Negligence per se ‘is a form of ordinary negligence that
results from violation of a statute,’ ” and “arises where the legislature pronounces
in a statute what the conduct of a reasonable person must be, whether or not the
common law would require similar conduct.” Id. When the legislature has done so,
“the court then adopts the statutory standard of care to define the standard of
conduct of a reasonable person,” and “the jury is instructed on the statutory
standard of care rather than the care of the reasonable person.” Id. Therefore, the
Court must consider the legislative intent of § 3040.060, § 304.171.1.
Here, the code referenced by Plaintiff's Petition merely sets out the
reasonable person standard of care. Like the statutes in Whittaker v. CRST Malone,
Inc., No. 4:18CV1048 HEA, 2019 WL 931966, at *1 (E.D. Mo. Feb. 26, 2019) and
Cisco v. Mullikin, No. 4:11–CV–295 RWS, 2012 WL 549504, at *2 (E.D. Mo. Feb.
21, 2012), Section 304.171.1 does not set out a statutory standard of care; rather, it
provides that ”[t]he driver of a vehicle shall not follow another vehicle more
closely than is reasonably safe and prudent, having due regard for the speed of
such vehicle and the traffic upon and the condition of the roadway.” Mo. Ann. Stat.
§ 304.017 (West). Missouri Courts have defined the highest degree of care “as that
degree of care that a very careful person would use under the same or similar
circumstances.” Crane v. Drake, 961 S.W.2d 897, 901 (Mo. App. W.D. 1998)
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(quotation omitted). Section 304.171.1 does not indicate specific conduct that
constitutes a violation and does not set out a statutory standard of care. Whittaker
2019 WL 931966, at *1 (E.D. Mo. Feb. 26, 2019); Cisco 2012 WL 549504, at *2
(E.D. Mo. Feb. 21, 2012). Plaintiff's negligence per se claims are fatally flawed
and must be dismissed.
Negligent Hiring, Retention, and Supervision
Since this Court's jurisdiction is based on diversity of citizenship, state law
governs the substantive issues in this case. See, e.g., Am. Home Assur. Co. v. Pope,
591 F.3d 992, 998-99 (8th Cir. 2010) (“In a diversity action, such as this, we use
state substantive law to govern our analysis.”) (citing Erie R. Co. v. Tompkins, 304
U.S. 64, 78 (1938)). In interpreting state law, a federal court is “bound by the
decisions of the state's highest court.” Minn. Supply Co. v. Raymond Corp., 472
F.3d 524, 534 (8th Cir. 2006) (quoting Eichenwald v. Small, 321 F.3d 733, 736 (8th
Cir. 2003)). “When a state's highest court has not decided an issue, it is up to [the]
court to predict how the state's highest court would resolve that issue.’ ” Id.
(quoting Continental Cas. Co. v. Advance Terrazzo & Tile Co., 462 F.3d 1002,
1007 (8th Cir. 2006)). In making that determination, the decisions of intermediate
state appellate courts are persuasive authority. Id.
Defendants argue that under Missouri law, once an employer has admitted
respondeat superior liability, it is improper to allow a plaintiff to proceed against
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the employer on any other theory of imputed liability. Defendants rely principally
on McHaffie ex rel. McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995).
Under the McHaffie rule, “once an employer has admitted respondeat
superior liability for a driver's negligence, it is improper to allow a plaintiff
to proceed against the employer on any other theory of imputed liability.”
McHaffie, 891 S.W.2d at 826.
In other words, “McHaffie prohibits a plaintiff from going to the jury on
multiple alternative theories of imputed liability.” Coomer v. Kansas City
Royals Baseball Corp., 437 S.W.3d 184, 206 (Mo. banc 2014).
D.J. by & through Jackson v. First Student, Inc., No. ED 111487, 2024 WL
3152509, at *18 (Mo. Ct. App. June 25, 2024), reh'g and/or transfer denied (July
29, 2024).
In McHaffie, a plaintiff injured in an accident sued the driver of a vehicle
and the driver's employer, alleging a claim of negligence against the driver, a claim
of vicarious liability against the employer, and claims of negligent hiring and
supervision against the employer. Id. at 824. The Missouri Supreme Court held that
“once the agency relationship was admitted, it was error to permit a separate
assessment of fault to defendant [employer] based upon the ‘negligent entrustment’
or ‘negligent hiring’ theories of liability”; it also held that it was error to admit
evidence on those theories. Id. at 827.
If all of the theories for attaching liability to one person for the negligence of
another were recognized and all pleaded in one case where the imputation of
negligence is admitted, the evidence laboriously submitted to establish other
theories serves no real purpose. The energy and time of courts and litigants
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is unnecessarily expended. In addition, potentially inflammatory evidence
comes into the record which is irrelevant to any contested issue in the case.
Once vicarious liability for negligence is admitted under respondeat
superior, the person to whom negligence is imputed becomes strictly liable
to the third party for damages attributable to the conduct of the person from
whom negligence is imputed. The liability of the employer is fixed by the
amount of liability of the employee. This is true regardless of the
“percentage of fault” as between the party whose negligence directly caused
the injury and the one whose liability for negligence is derivative.
Id. at 826 (internal citations omitted). The McHaffie court suggested in dicta that
there might be some situations in which this general rule might not apply, noting as
one example that it is “possible that an employer or an entrustor may be liable for
punitive damages which would not be assessed against the employee/entrustee.”
Id. However, the court did not decide whether any such exceptions to the general
rule existed. Id.
In 2013, however, the Missouri Court of Appeals held that the general rule
set forth in McHaffie does not apply where punitive damages are sought against the
employer, stating:
The rationale for the Court's holding in McHaffie was that, where vicarious
liability was admitted and none of the direct liability theories could prevail
in the absence of proof of the employee's negligence, the employer's liability
was necessarily fixed by the negligence of the employee. McHaffie, 891
S.W.2d at 826. Thus, any additional evidence supporting direct liability
claims could serve only to waste time and possibly prejudice the defendants.
Id.
The same cannot be said, however, when a claim for punitive damages based
upon the direct liability theories is raised. If an employer's hiring, training,
supervision, or entrustment practices can be characterized as demonstrating
complete indifference or a conscious disregard for the safety of others, then
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the plaintiff would be required to present additional evidence, above and
beyond demonstrating the employee's negligence, to support a claim for
punitive damages. Unlike in the McHaffie scenario, this evidence would
have a relevant, non-prejudicial purpose. And because the primary concern
in McHaffie was the introduction of extraneous, potentially prejudicial
evidence, we believe that the rule announced in McHaffie does not apply
where punitive damages are claimed against the employer, thus making the
additional evidence both relevant and material.
Wilson v. Image Flooring, LLC, 400 S.W.3d 386, 393 (Mo. Ct. App. 2013).
Federal courts in Missouri consistently followed Wilson and have held that
where an employer might be liable for punitive damages under theories of liability
other than respondeat superior, a plaintiff may assert alternative theories of liability
against the employer even where the employer has admitted respondeat superior
liability. See Mason v. Robinson, No. 4:22CV649 HEA, 2023 WL 2913574, at *1
(E.D. Mo. Apr. 12, 2023)(denying motion to dismiss independent claims); Gaydos
v. Gully Transportation, Inc., No. 4:21-CV-388-SPM, 2021 WL 5298679, at *2–4
(E.D. Mo. Nov. 15, 2021)(denying employer defendant's motion to dismiss
independent claims); Sanford v. K&B Transp., Inc., No. 1:20 CV 180 ACL, 2021
WL 4552206, at *3 (E.D. Mo. Oct. 5, 2021) (denying a negligent driver's
employer's motion for judgment on the pleadings on claims of direct negligence,
negligent hiring/retention, negligent supervision/retention, and negligent training
claims); Monroe v. Freight All Kinds, Inc., et al., No. 18-CV-03238-SRB, 2020 WL
6589000, at *2-*3 (W.D. Mo. Nov. 10, 2020) (rejecting an employer's argument
that it was entitled to summary judgment on claims of negligence and negligent
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hiring/training/supervision/entrustment because it had admitted vicarious liability);
Kyles v. Celadon Trucking Servs., Inc., No. 6:15–CV–03193–MDH, 2015 WL
6143953, at *4 (W.D. Mo. Oct. 19, 2015) (relying on Wilson).
This Court concludes that the reasoning of Wilson and the above cases are
persuasive. In the Petition, Plaintiff did not seek punitive damages, however
Mo.Rev.Stat. § 510.261(5), prohibits a claim for punitive damages in an initial
pleading. Although the Eighth Circuit has not addressed the question of whether §
510.261(5) applies in federal court proceedings, federal district courts in Missouri
have consistently held that it does not. See, e.g. Reppert v. Guerrero, No.
4:23CV504 HEA, 2024 WL 1217484, at *2–3 (E.D. Mo. Mar. 21, 2024). Mason v.
Robinson, No. 4:22CV649 HEA, 2023 WL 2913574, at *3 (E.D. Mo. Apr. 12,
2023); Bextermueller News Distributors v. Lee Enterprises, Inc., No. 4:22-CV00344-SPM, 2023 WL 2187465, at *6–7 (E.D. Mo. Feb. 23, 2023); Davis v. ALS
Express Trucking, Inc., No. 4:20-CV-1672-RLW, 2022 WL 3153712, at *1-*2
(E.D. Mo. Aug. 8, 2022); Ryan v. United Recovery & Remarketing, LLC, No. 4:21CV-01324-JAR, 2022 WL 1421517, at *2 (E.D. Mo. May 5, 2022); Gaydos v.
Gully Transportation, Inc., 4:21-CV-388-SPM, 2021 WL 4963523 (E.D. Mo. Oct.
26, 2021); Kilburn v. Autosport Acquisitions, LLC, No. 1:20-CV-211-ACL, 2021
WL 307550, at *1-*2 (E.D. Mo. Jan. 29, 2021. Plaintiff may seek to amend her
claims to include punitive damages and may need to obtain discovery (and
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eventually present evidence) in support of any claims for punitive damages that go
above and beyond demonstrating Defendant Titano's negligence. Thus, as in the
above cases, McHaffie does not require dismissal of Counts V, VI, and VII.
Defendants’ motion to dismiss will be denied with respect to those claims.
Conclusion
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss, [Doc. No.
9], is granted in part and denied in part.
IT IS FURTHER ORDERED that Counts II and IV are dismissed.
Dated this 25th day of September, 2024.

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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