Kwiatkowski et al v. Teton Transportation, Inc. et al

Filing 18

ORDER and OPINION denying 6 motion to dismiss. Signed on 04/23/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

PIOTR KWIATKOWSKI,
Plaintiff,
vs.
TETON TRANSPORTATION, INC.,
and RANDALL HUFF,
Defendants.

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Case No. 11-1302-CV-W-ODS

ORDER AND OPINION DENYING MOTION TO DISMISS (DOC. 6)
Defendant Teton Transportation, Inc., moves to dismiss Count III of Plaintiff Piotr
Kwiatkowski’s first amended complaint. The motion is denied.

I. BACKGROUND

Kwiatkowski claims Defendant Randall Huff caused a trucking accident on
Interstate 70 in Lafayette County that left Kwiatkowski permanently disabled.
Kwiatkowski alleges negligence and negligence per se against Huff and Huff’s
employer, Teton, in Counts I and II of his first amended complaint.
In Count III of his first amended complaint Kwiatkowski also alleges Teton was
negligent or reckless in training, controlling, and/or supervising Huff. Kiwatkowski seeks
exemplary damages under this count but not under Counts I and II.
Teton admits Huff was its employee and that he was operating in the course and
scope of his employment when the accident occurred. Teton maintains Count III should
be dismissed because of this admission.

II. DISCUSSION

A pleading is subject to dismissal under Fed. R. Civ. P. 12(b)(6) if it fails to state
a claim on which relief can be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 677–87
(2009). To survive dismissal, a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Teton argues dismissal of Count III is compelled by McHaffie By and Through
McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). In McHaffie the employer (like Teton)
admitted the truck driver was its agent and employee working within the scope of his
employment at the time of the accident, and the jury assessed fault against the
employer for vicarious liability. Id. at 825. But the jury also separately assessed fault
against the employer for negligent hiring. Id. The Missouri Supreme Court held the trial
court erred in admitting evidence of negligent hiring and permitting this separate fault
assessment. Id. at 827.
McHaffie reasoned that once the employer admitted the employee was acting
within the course and scope of his employment at the time of the accident, the plaintiff
only needed to prove the employee acted culpably for negligence to be imputed to the
employer under respondeat superior. See id. at 826. In contrast, negligent hiring and
negligent entrustment1 required evidence in addition to employee culpability to prove the
employer liable. See id. at 825–26. McHaffie held that this additional evidence was
irrelevant and prejudicial in light of the employer’s admission. Id. at 827.
According to Teton, proof McHaffie was intended to apply to Kwiatkowski’s
first amended complaint (and not just when evidence is being submitted) is shown by
the court’s following statement:

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

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Although the verdict director on the employer’s separate liability did not contain
the elements of negligent entrustment, the court found it “[came] close” to doing so.
McHaffie, 891 S.W.2d at 825.
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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 is unnecessarily expended.
891 S.W.2d at 826 (emphasis added).
Kwiatkowski counters McHaffie does not require dismissal because Count III
does not seek to impose imputed liability. Kwiatkowski highlights that McHaffie did not
involve claims of negligent supervision and negligent training. Kwiatkowski argues he
can establish liability for these claims “regardless of any conduct by the employee.”
Suggestions in Opposition, Doc. 14, p. 6. But every negligence action requires actual
causation to be shown. See Newell Rubbermaid, Inc. v. Efficient Solutions, Inc., 252
S.W.3d 164, 177 (Mo. Ct. App. 2007). Kwiatkowski cannot establish actual causation
under Count III without Huff’s alleged misconduct. Kwiatkowski has not shown his
claims under Count III are materially different from the claims in McHaffie.
This however does not mean Teton’s motion to dismiss should be granted. The
issue raised by a Rule 12(b)(6) motion is not whether submitting evidence on a claim is
laborious or even necessary, but whether the plaintiff has pleaded “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged,” Iqbal, 129 S. Ct. at 1949 (citation omitted). Even considering
Teton’s admission that Huff was an employee acting in the scope of employment at the
time of the accident, the Court can still infer from Kwiatkowski’s allegations that Teton is
liable under Count III. It is not as if Teton’s admission is an affirmative defense to Count
III. Dismissal under Rule 12(b)(6) therefore is not warranted.
The undersigned acknowledges the Honorable Howard F. Sachs applied
McHaffie and granted a motion to dismiss negligent hiring/retention/training claim
against an employer in circumstances like those here. See Brown v. Larabee, No.
04-1025-CV-W-HFS; 2005 WL 1719908, at *2 (W.D. Mo. July 25, 2005). Judge Sachs
reasoned that “[n]o amount of discovery will change that fact that Count II (negligent
hiring/retention/training) is an imputed liability claim derived from and dependent upon
[the employee’s] alleged negligence.” Id. While the undersigned respects Judge
Sachs’ opinion, the undersigned finds more persuasive the Honorable Rodney W.
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Sippel’s denial of employers’ motions to dismiss in Cisco v. Mullikin, No. 4:11 CV 295
RWS, 2012 WL 549504, at *1 (E.D. Mo. Feb. 21, 2012). Judge Sippel held that
“McHaffie does not prevent Cisco from alleging negligent hiring, entrustment, training
and supervision claims” (emphasis added). The Court believes Judge Sippel’s decision
reflects the appropriate inquiry when evaluating a Rule 12(b)(6) motion.
The undersigned also acknowledges other judges from this district have applied
McHaffie and granted employers’ Rule 12(c) motions for judgment on the pleadings in
cases with similar facts. See, e.g., Xiong v. Quick, 4:09-CV-00660-SOW, Doc. 23, p. 2
(W.D. Mo. Nov. 24, 2009) (Wright, J.) (citing Larabee); Hoch v. John Christner Trucking,
Inc., No. 05-0762-CV-W-FJG, 2005 WL 2656958, at *2 (W.D. Mo. Oct. 18, 2005)
(Gaitan, J.) (“[O]nce defendant admits vicarious liability for actions of its
employee/agent, negligent hiring/training/entrustment claims ‘serve no real purpose’”
(citation omitted).); Butts v. North American Van Lines, No. 6:05-CV-03115-RED, Doc.
16, p. 7 (W.D. Mo. May 18, 2005) (Dorr, J.) (“Proceeding on alternative theories of
negligent entrustment, supervision, or hiring would merely unnecessarily expend the
Court’s and the parties’ resources (footnote omitted).).
While the undersigned respects the opinions of these judges, the Court believes
dismissal would be inappropriate even if Teton’s motion was construed as one for
judgment on the pleadings. Those motions and Rule 12(b)(6) motions are governed by
“the same standard,” Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir.
2009), and the Court has already concluded dismissal under Rule 12(b)(6) is not
warranted.
The Court further notes two decisions from the Eastern District of Missouri that
disagree whether McHaffie compels granting a Rule 12(f) motion to strike a plaintiff’s
additional imputed liability claims. Compare Sargent v. Justin Time Transp., L.L.C., No.
4:09CV596 HEA, 2009 WL 4559222, at *2 (E.D. Mo. Nov. 30, 2009) (Autrey, J. )
(“Although, the Court can . . . strike from the pleading any ‘insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter,’ it is premature to strike Count
III at this time.”).), with Young v. Dunlap, 223 F.R.D. 520, 522 (E.D. Mo. 2004) (Noce,
J.) (“[A]llowing [the plaintiff] to argue negligent entrustment when [the employer]
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admitted imputed liability is both redundant and prejudicial” (citation omitted).).
If the Court construed Teton’s motion as a motion to strike it would still be
denied. McHaffie observed that—even where an employer makes the admissions
Teton did here—it was “possible that an employer or an entrustor may be liable for
punitive damages which would not be assessed against the employee/entrustee”
(citation omitted). 891 S.W.2d at 826. Liability against Teton for exemplary damages
that cannot be assessed against Huff is exactly what Kwiatkowski is seeking under
Count III.
The Court acknowledges McHaffie observed the punitive damages exception
was just a possibility and later stated the issue “await[ed] another day.” 891 S.W.2d at
826. The Court also acknowledges that some federal district judges in Missouri have
held no exception to McHaffie exists for punitive damages because no Missouri state
case subsequent to McHaffie has explicitly recognized one. See Allstate Insurance
Company v. Hasty, No. 4:10-CV-00209-DW, Doc. 57, p. 5 (W.D. Mo. Sept. 14, 2010)
(Whipple, J.) (holding no exception existed because “[t]he Missouri Supreme Court
declined to decide the issue of exceptions to the rule set forth in McHaffie and has not
since revisited the matter”); Jackson v. Myhre, No. 1:06CV188 CDP, 2007 WL 2302527,
at *2 (E.D. Mo. Aug. 7, 2007) (Perry, J.) (“”[T]his language leaves such issues for
another day, and I cannot find any more recent Missouri decision that recognizes any
such an exception.”); Connelly v. H.O. Wolding, Inc., No. 06-5129-CV-SW-FJG; 2007
WL 679885, at *2 (W.D. Mo. Mar. 1, 2007) (Gaitan, J.) (“Missouri has yet to recognize
such an exception. Thus, the general rule in Missouri remains—plaintiff cannot assert
additional theories of imputed liability when defendant has admitted respondeat superior
liability” (citation omitted).).
The Court respectfully disagrees with these decisions. It appears no case from a
Missouri appellate court has recognized the exception noted in McHaffie, but it also
appears the issue has not been presented to those courts. And other federal judges
have recognized the punitive-damage exception mentioned in McHaffie, or at least
decided the plaintiff should be allowed discovery on the additional claims of imputed
liability when punitive damages are pleaded. See, e.g., Blotter v. Brent Higgins
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Trucking Co. Inc., No. 3:11-CV-05073-RED, Doc. 19, p. 3 (W.D. Mo. Nov. 30, 2011)
(Dorr, J.) (holding McHaffie’s language “indicates that the McHaffie Court may have
recognized an exception in cases considering punitive damages”); Jodlowski v. Lindsey
Petroleum Transport, Inc., No. 3:09-CV-05051-JTM, Doc. 39, pp. 3–4 (W.D. Mo. Jun. 8,
2010) (Maughmer, Mag. J.). The Court agrees with the Honorable John T. Maughmer’s
justification for allowing discovery when punitive damages are sought against the
employer:

The rationale is straightforward. In a ‘simple’ (i.e., non-punitive)
automobile accident case, to the extent there is liability arising from its
employee’s negligence, the employer will have to pay those finite
consequential damages regardless of the theory of liability (i.e., the
plaintiff’s damages and injuries are not increased because of the theory of
liability pursued). In an automobile accident case involving a claim of
punitive damages, however, the damages are not necessarily so limited.
Instead, in a case where punitive damages are at issue, a factfinder may
consider the conduct of the employer beyond the actions of the negligent
employee and increase the exemplary award based on such conduct.
Jodlowski, Doc. 39, p. 3.
In addition, employers would be insulated from liability for their egregious
conduct if the punitive damages exception to McHaffie was not recognized. See J.J.
Burns, Note, Respondeat Superior as an Affirmative Defense: How Employers
Immunize Themselves from Direct Negligence Claims, 109 Mich. L. Rev. 657, 676
(2011) (“In these jurisdictions, once an employer admits to respondeat superior liability,
the employer's wanton disregard, willful misconduct, malice, or conscious indifference
become untouchable” (footnote omitted).). If the Missouri Supreme Court was
presented with the issue, the Court believes it would recognize a punitive-damage
exception to the rule stated in McHaffie.

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III. CONCLUSION

Teton’s motion to dismiss is denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: April 23, 2012

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