Odom et al v. Penske Truck Leasing Co LP et al

Filing 113

ORDER granting 99 Defendant Barksdale, Inc.'s Motion to Dismiss (as more fully set out). Signed by Honorable Patrick R Wyrick on 6/4/2019. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PERRY ODOM; and
CAROLYN ODOM,
Plaintiffs,
v.
PENSKE TRUCK LEASING CO.,
LP, a foreign limited partnership;
HENDRICKSON USA, L.L.C.,
a foreign limited liability company;
and BARSKDALE, INC.,
a foreign company,

Defendants.

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Case No. CIV-16-442-PRW

ORDER
Before the Court is Defendant Barksdale, Inc.’s Motion to Dismiss and Brief in
Support Pursuant to 12(B)(2) and 12(C) (Dkt. 99), filed February 4, 2019. Plaintiffs filed
their response on February 25, 2019 (Dkt. 102), and Defendant Barksdale filed its reply on
March 4, 2019 (Dkt. 103). For the reasons set forth below, the Motion is granted.
Plaintiffs bring this action against Barksdale alleging that it is liable for personal
injuries sustained by Plaintiff Perry Odom from an accident caused in part by a defective
Barksdale height control valve.1 This height control valve is a component part of the air
suspension system within the Penske trailer that fell on Mr. Odom and resulted in his
injuries.2 Specifically, Plaintiffs bring claims against Barksdale based on theories of

1
2

Pls.’ Am. Compl. (Dkt. 87) ¶¶ 20–45, at 5–10.
Id. ¶ 24, at 5.
1

products liability/strict liability, negligence, and breach of warranty. Plaintiffs also seek
personal injury damages on behalf of Mr. Odom, loss of consortium damages on behalf of
Mrs. Odom, and entitlement to punitive damages.3
Although Barksdale moves to dismiss these claims pursuant to both Fed. R. Civ. P.
12(b)(2) and 12(b)(6),4 the Court need only address the 12(b)(6) motion, as the granting of
that motion renders moot the alternative basis for dismissal.
Standard of Review
In reviewing a 12(b)(6) motion to dismiss, all well-pleaded allegations in the
complaint must be accepted as true and viewed “in the light most favorable to the
plaintiff.”5 While a complaint need not recite “detailed factual allegations,” “a plaintiff’s
obligation to provide the grounds of his entitle[ment] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.”6 The pleaded facts must establish that the claim is plausible.7
Analysis
Upon careful consideration of Plaintiffs’ Amended Complaint, and accepting all of
Plaintiffs’ factual allegations as true and construing those facts in the light most favorable

3

Id. ¶¶ 20–48, at 5–10.
While Barksdale cites Fed. R. Civ. P. 12(c), a motion to dismiss for failure to state a claim
upon which relief can be granted is pursuant to Fed. R. Civ. P. 12(b)(6).
5
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting David v.
City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996)).
6
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and
citations omitted) (alteration in original).
7
Id.
4

2

to Plaintiffs, the Court finds that Plaintiffs fail to state a claim upon which relief can be
granted against Barksdale.
Tort Claims
First, Plaintiffs’ tort claims of products liability/strict liability and negligence fail
because they are barred by the applicable statute of limitations. Oklahoma law imposes a
two-year statute of limitations from accrual upon tort claims.8 A claim “accrues when a
litigant could first maintain an action to successful conclusion.”9
The alleged accident occurred on July 27, 2015.10 Plaintiffs do not argue that accrual
of their tort claims occurred on a later date, nor are there any factual allegations in the
Amended Complaint indicating a different accrual date. Although this suit was initiated on
April 29, 2016, against other defendants, Plaintiffs did not seek to impose liability upon
Barksdale until the Amended Complaint was filed on November 21, 2018—more than
three (3) years after the alleged accident and well outside of the two-year statute of
limitations period.
Plaintiffs disagree with this conclusion and argue that the statute of limitations was
tolled due to a stay of proceedings pending appeal11 from February 27, 2017, until July 13,

Okla. Stat. tit. 12, § 95(A)(3) (2011) (“A. Civil actions other than for the recovery of real
property can only be brought within the following periods, after the cause of action shall
have accrued, and not afterwards: . . . 3. Within two (2) years: . . . an action for injury to
the rights of another, not arising on contract, and not hereinafter enumerated.”); see Moss
v. Polyco, Inc., 1974 OK 53, ¶ 6, 522 P.2d 622, 625.
9
Hawk Wing v. Lorton, 2011 OK 42, ¶ 12, 261 P.3d 1122, 1125.
10
Pls.’ Am. Compl. (Dkt. 87) ¶ 14, at 3.
11
Order (Dkt. 66) at 13. The stay was issued pending the appeal of an Order (Dkt. 43) filed
on August 29, 2016, granting Defendant Penske Truck Leasing Co., LP’s Motion to
Dismiss (Dkt. 27) and an Order (Dkt. 58) filed November 21, 2016, denying Plaintiffs’
8

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2018.12 They assert that this stay “prevented [Plaintiffs] from prosecuting any claims,
including those against Barksdale.”13 But while the stay prevented Plaintiffs from
prosecuting their claims against the other defendants named at the time of the appeal,
Plaintiff remained free to prosecute its claims against Barksdale because prior to November
21, 2018, Barksdale was not a party to this case and was thus not subject to the stay.
Nothing prevented Plaintiffs from filing a separate action against Barksdale during the
appeal and before the statute of limitations ran. Thus, the ancillary stay of separate
proceedings did not toll the statute of limitations as to Plaintiffs’ tort claims against
Barksdale.
Plaintiffs further explain that only upon receiving discovery responses from
Defendant Hendrickson on November 5, 2018, did they learn that Barksdale designed and
manufactured the component height control valve within Hendrickson’s air suspension
system.14 Oklahoma’s discovery rule, however, allows “limitations in tort cases to be tolled
until the injured party knows or, in the exercise of reasonable diligence, should have known
of the injury.”15 This rule “exclude[s] the period of time during which the injured party is
reasonably unaware tha[t] an injury has been sustained so that people in that class have the
same rights as those who suffer an immediately ascertainable injury.”16 But “[s]tatutes of

Motion to Alter, Amend or Modify the Court’s Order Granting Penske Truck Leasing Co.
LP’s Motion to Dismiss (Dkt. 49).
12
See Pls.’ Obj. & Resp. (Dkt. 102) at 21.
13
Id. at 23.
14
Id. 21–22.
15
Resolution Tr. Corp. v. Grant, 1995 OK 68, ¶ 8, 901 P.2d 807, 813 (emphasis added).
16
Id.
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limitation were not designed to help those who negligently refrain from prosecuting
inquiries plainly suggested by the facts.”17
Apparent from the Amended Complaint, Plaintiff Perry Odom was aware of his
injury contemporaneously with its occurrence when the Penske trailer “fell upon him and
struck his head” on July 27, 2015.18 Knowing that he was injured by the trailer and in a
position to investigate the causes of that injury, the statute of limitations began to run at
that time, and was not tolled by the discovery rule. Accordingly, Plaintiffs’ tort claims
against Barksdale were filed too late—the statute of limitations expired on July 27, 2017,
so Plaintiffs’ claims of products liability/strict liability and negligence against Barksdale
fail to state a claim upon which relief can be granted and are dismissed.
Breach of Warranty Claim
Second, Plaintiffs fail to state a claim upon which relief can be granted as to their
breach of warranty claim because Plaintiffs do not allege sufficient facts to establish that
Mr. Odom was the purchaser of the relevant product or that horizontal privity exists
between Mr. Odom and Barksdale.
In each contract for the sale of goods, express or implied warranties by the seller to
the purchaser may exist. When one of these warranties is breached by the seller, the
purchaser of the goods may typically maintain an action for breach of warranty against the
seller of the goods.19 When a breach of warranty injures a party who is not the purchaser

17

Hawk Wing, 2011 OK 42, ¶ 11, 261 P.3d at 1125 (quoting Daugherty v. Farmers Coop.,
1984 OK 72, ¶ 12, 689 P.2d 947, 951).
18
Pls.’ Am. Compl. (Dkt. 87) ¶ 14, at 3.
19
Okla. Stat. tit. 12A, §§ 2-313–2-315 (2011).
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of the goods, however, Oklahoma law restricts the extension of the seller’s warranty “to
any natural person who is in the family or household of his buyer or who is a guest in his
home if it is reasonable to expect that such person may use, consume or be affected by the
goods and who is injured in person by the breach of warranty.” 20 The Oklahoma Supreme
Court interprets this statute literally, explaining that this section “limits warranty protection
to persons named in that section, i.e. ‘any natural person who is in the family or household
of his buyer or who is a guest in his home.’”21

Id. § 2-318. The Court also notes that Plaintiffs’ Response omits the most crucial
language of Okla. Stat. tit. 12A, 2-318(1) (2011). The Uniform Commercial Code provides
three different alternatives to this provision regarding horizontal privity, and Oklahoma
chose to codify the narrowest. Instead of acknowledging the full statutory text and
advocating for Plaintiffs’ position based on that text, Plaintiffs inexplicably omit the critical
modifying language, claiming that “12A O.S. § 2-318(1) provides, ‘[a] seller’s warranty
whether express or implied extends to any natural person . . . if it is reasonable to expect
that such person may use, consume or be affected by the goods . . . [.]’” Pls.’ Obj. & Resp.
(Dkt. 102) at 25. The full text of the statute, however, provides that “[a] seller’s warranty
whether express or implied extends to any natural person who is in the family or household
of his buyer or who is a guest in his home if it is reasonable to expect that such person may
use, consume or be affected by the goods and who is injured in person by breach of the
warranty.” Okla. Stat. tit. 12A, § 2-318(1) (2011) (emphasis added). This incomplete
quotation of the governing statute essentially transforms the statute into a UCC alternative
that Oklahoma rejected: “[a] seller’s warranty whether express or implied extends to any
natural person who may reasonably be expected to use, consume or be affected by the
goods and who is injured in person by breach of the warranty.” Hester v. Purex Corp., 1975
OK 48, ¶ 12, 534 P.2d 1306, 1308 (quoting U.C.C. § 2-318 (Am. Law Inst. & Unif. Law
Comm’n 1966)); see also id. ¶ 18, 534 P.2d at 1308 (“Our legislature, since 1966, has had
several opportunities to adopt alternatives B or C enlarging the coverage of the U.C.C. It
has not chosen to do so.”).
21
Old Albany Estates, Ltd. v. Highland Carpet Mills, Inc., 1979 OK 144, ¶ 5, 604 P.2d
849, 851 (quoting Okla. Stat. tit. 12A, § 2-318 (1971)); see also Hester, 1975 OK ¶ 19, 534
P.2d at 1308 (“[U]ntil the Legislature elects to change this statute, we hold that the UCC
section 2-318 does not extend the coverage of its implied warranty of merchantability to
employees of the purchaser.”).
20

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Plaintiffs do not allege that Mr. Odom was the purchaser of the height control valve,
air suspension system, or Penske trailer. In fact, the relevant facts Plaintiffs do allege—that
Mr. Odom “was directed to assist in the maintenance of the product at issue”22 and that
“[p]rior to July 27, 2015, Penske TLC owned Penske Trailer Company Unit No: 684149,
having VIN No. VS2535 EG9906 12 VS2DX”23—lead to the reasonable inference that
Defendant Penske Truck Leasing Co., LP was the purchaser of the product (the Penske
trailer and its component parts), not Mr. Odom.
Plaintiffs also do not allege that Mr. Odom is in the family or household of the
purchaser or a guest in the purchaser’s home. Plaintiffs allege no facts to allow the Court
to draw a reasonable inference that horizontal privity exists between Mr. Odom and
Barksdale. As a result, Plaintiffs also fail to state a claim upon which relief can be granted
for breach of warranty against Barksdale and it is dismissed.
Accordingly, the Court GRANTS Defendant Barksdale, Inc.’s Motion to Dismiss
(Dkt. 99) pursuant to Fed. R. Civ. P. 12(b)(6).
IT IS SO ORDERED this 4th day of June, 2019.

22
23

Pls.’ Obj. & Resp. (Dkt. 102) at 25.
Pls.’ Am. Compl. (Dkt. 87) ¶ 12, at 3.
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