Abbott et al v. Zavcor Trucking Limited et al

Filing 21

MEMORANDUM AND ORDER AND NOW, THIS 30th DAY OF APRIL 2013, FOR THE REASONS DISCUSSED IN THE ACCOMPANYING MEMORANDUM, IT IS HEREBY ORDERED THAT:1.Plaintiffs Motion to Enforce Agreement and/or Stipulation That Defendant Gerald Dunbar and/or John Doe Tr uck Driver(s) 1-5, Was Acting in Course and Scope of Employment of Defendant, Zavcor Trucking Limited and/or Zavcor Truck-King at the Time of the Subject Motor Vehicle Collision as Well as Motion for Sanctions and Payment of Fees, Costs and Attorney Fees (Doc. 14) is DENIED;2.Plaintiff is to file an amended complaint on or before June 14, 2013.Signed by Honorable Richard P. Conaboy on 4/30/13. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TIMOTHY W. ABBOTT, SR. and
TERESA E. ABBOTT,

:
:CIVIL ACTION NO. 3:12-CV-2565
:
Plaintiffs,
:(JUDGE CONABOY)
:
v.
:
:
ZAVCOR TRUCKING LIMITED, and/or
:
ZAVCOR/TRUCK-KING, GERALD DUNBAR
:
and/or JOHN DOE TRUCK DRIVER(S)
:
1-5 and/or JOHN DOE TRUCKING
:
COMPANY (IES) 1-5, and/or JOHN
:
DOE, PERSONAL REPRESENTATIVE OF
:
JOHN DOE TRUCK DRIVERS,
:
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiffs’ Motion to Enforce Agreement
and/or Stipulation That Defendant Gerald Dunbar and/or John Doe
Truck Driver(s) 1-5, Was Acting in Course and Scope of Employment
of Defendant, Zavcor Trucking Limited and/or Zavcor Truck-King at
the Time of the Subject Motor Vehicle Collision as Well as Motion
for Sanctions and Payment of Fees, Costs and Attorney Fees (Doc.
14).

For the reasons discussed below, we deny Plaintiffs’ motion.
I. Background
This action stems from a collision which occurred on January

28, 2011, on Interstate 81 in Susquehanna County, Pennsylvania.
(Doc. 1 ¶¶ 10-11.)

Plaintiffs allege

Gerald Dunbar and/or John Doe Truck Driver(s)
1-5, an employee, servant, agent and/or
representative of Defendant, while in the
scope of his duties with Zavcor Trucking

Limited and/or all other defendants, was
operating Defendant’s vehicle . . . when
Defendant veered his vehicle into Mr.
Abbott’s lane and collided with his truck
causing this accident to occur.
(Doc. 1 ¶ 11.)

Mr. Abbott allegedly sustained injuries to his

head, neck, back and shoulder.

(Doc. 1 ¶ 13.)

Plaintiffs filed the action on December 21, 2012.

(Doc. 1.)

The Complaint contains three counts: Count One for Negligence;
Count Two for Negligent Entrustment; and Count Three for Loss of
Consortium.

(Id.)

Plaintiffs filed the present motion (Doc. 14) and supporting
brief (Doc. 15) on March 29, 2013.

The motion is based on

Plaintiffs’ assertion that an insurance adjuster informed
Plaintiffs’ counsel that the driver of the vehicle which caused the
collision had died.

(Doc. 14 at 2.)

Plaintiffs further aver that

the adjuster assured Plaintiffs’ counsel that the driver was within
the course and scope of his employment at the time of the collision
and “there were not coverage issues.”

(Id.)

After Plaintiffs

filed this action, Plaintiffs’ counsel forwarded a stipulation to
Defense Counsel regarding Dunbar having been acting within the
course and scope of his employment at the time of the collision.
(Doc. 14 at 3.)
stipulation.

Defense Counsel did not enter into the proposed

(Id.)

Because of Defense Counsel’s position, Plaintiff’s Counsel
requested an Emergency Status Conference with the Court on February

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7, 2013.

(Doc. 6.)

The Court granted the motion (Doc. 7), and

held a telephonic conference on March 1, 2013 (Doc. 10).

The Court

made no rulings related to issues raised in the telephone
conference.
Plaintiffs now seek to have the Court enforce the proposed
stipulation, direct Defendant Zavcor to accept service on behalf of
Gerald Dunbar, direct Defendant Zavcor to remit to Plaintiffs the
cost of raising an estate for Dunbar and/or Truck Driver(s) 1-5,
and further direct Defendant Zavcor to remit to Plaintiffs costs
and counsel fees related to this motion.

(Doc. 15 at 8-9.)

Finally, Plaintiffs request one hundred twenty days to petition to
have an estate opened for Gerald Dunbar and Truck Driver(s) 1-5 and
effectuate service upon same.
Defendant Zavcor Trucking Limited filed a brief in response to
Plaintiffs’ motion on April 12, 2013.

(Doc. 16.)

Plaintiffs have

not filed a reply brief and by correspondence dated April 26, 2013,
it appears they do not intend to do so.

(See Doc. 20).

By Memorandum and Order dated April 18, 2013, the Court
considered Defendant Zavcor Trucking Limited’s Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 12) and granted it in
part and denied it in part.

(Doc. 17.)

The Court granted the

motion insofar as Defendant Gerald Dunbar was dismissed from the
action.

(Doc. 17 at 11.)

The Court denied the motion as to Moving

Defendant’s request to dismiss all allegations of recklessness and

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language which may give rise to punitive damages.

(Doc. 17 at 11.)

Additionally, the Court granted Plaintiffs leave to amend their
Complaint to properly name a representative of deceased Defendant
Gerald Dunbar and allowed them until May 3, 2013, to file an
amended complaint.

(Id. at 11-12.)

In their April 26, 2013,

correspondence, Plaintiffs ask the Court to extend the May 3, 2013,
deadline for filing an amended complaint by thirty (30) days.
(Doc. 20 at 2.)
II. Discussion
In consideration of Plaintiffs’ Motion to Enforce Agreement
And/or Stipulation That Defendant Gerald Dunbar And/or John Doe
Truck Driver(s) 1-5, Was Acting in Course and Scope of Employment
of Defendant, Zavcor Trucking Limited And/or Zavcor Truck-King at
the Time of the Subject Motor Vehicle Collision as Well as Motion
for Sanctions and Payment of Fees, Costs and Attorney Fees (Doc.
14), we conclude the motion is properly denied.
At this stage of the proceedings, Defendant Gerald Dunbar has
been dismissed from this action and Plaintiffs have been given
direction as to how to proceed.

(Doc. 17.)

Plaintiffs cite no

authority for the proposition that a court must enforce an alleged
pre-litigation stipulation between an insurance adjuster and
Plaintiffs’ counsel.

The Court concludes it would be inappropriate

to do so given the circumstances of this case.

Further, the Court

concludes there is no basis to grant the remainder of the relief

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sought by Plaintiffs.
III. Conclusion
For the reasons discussed above, Plaintiffs’ Motion to Enforce
Agreement and/or Stipulation That Defendant Gerald Dunbar and/or
John Doe Truck Driver(s) 1-5, Was Acting in Course and Scope of
Employment of Defendant, Zavcor Trucking Limited and/or Zavcor
Truck-King at the Time of the Subject Motor Vehicle Collision as
Well as Motion for Sanctions and Payment of Fees, Costs and
Attorney Fees (Doc. 14) is denied.

As requested in Plaintiffs’

April 26, 2013, correspondence (Doc. 17), the Court will allow
Plaintiffs and extension of time to file an amended complaint.
appropriate Order follows.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: April 30, 2013

5

An

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TIMOTHY W. ABBOTT, SR. and
TERESA E. ABBOTT,

:
:CIVIL ACTION NO. 3:12-CV-2565
:
Plaintiffs,
:(JUDGE CONABOY)
:
v.
:
:
ZAVCOR TRUCKING LIMITED, and/or
:
ZAVCOR/TRUCK-KING, GERALD DUNBAR
:
and/or JOHN DOE TRUCK DRIVER(S)
:
1-5 and/or JOHN DOE TRUCKING
:
COMPANY (IES) 1-5, and/or JOHN
:
DOE, PERSONAL REPRESENTATIVE OF
:
JOHN DOE TRUCK DRIVERS,
:
:
Defendants.
:
:
___________________________________________________________________
ORDER
AND NOW, THIS 30th DAY OF APRIL 2013, FOR THE REASONS DISCUSSED
IN THE ACCOMPANYING MEMORANDUM, IT IS HEREBY ORDERED THAT:
1.

Plaintiffs’ Motion to Enforce Agreement and/or
Stipulation That Defendant Gerald Dunbar and/or John Doe
Truck Driver(s) 1-5, Was Acting in Course and Scope of
Employment of Defendant, Zavcor Trucking Limited and/or
Zavcor Truck-King at the Time of the Subject Motor
Vehicle Collision as Well as Motion for Sanctions and
Payment of Fees, Costs and Attorney Fees (Doc. 14) is
DENIED;

2.

Plaintiff is to file an amended complaint on or before
June 14, 2013.

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S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

7