Kinney et al v. Brink's Incorporated et al

Filing 43

MEMORANDUM AND ORDER granting in part 38 Unopposed MOTION for Leave to File Unopposed Motion for Leave to Designate Responsible Third Parties (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROSALIND B. KINNEY , Individually and
on Behalf of the Estate of Alvin M. Kinney,
and BRETT J. KINNEY , Individually,
Plaintiffs,
v.
BRINK’S INCORPORATED , CAPITAL ONE
NATIONAL ASSOCIATION , and
5718 WESTHEIMER ROAD INVESTORS LP,
Defendants.

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August 19, 2016
David J. Bradley, Clerk

CIVIL ACTION NO . 4:15-CV-03512

MEMORANDUM AND ORDER
Before the Court is Defendant Capital One National Association’s unopposed motion for
leave to designate responsible third parties. Dkt. 38. For the reasons set forth below, the motion
is granted in part.
BACKGROUND
This wrongful death suit arises from the fatal shooting of Alvin Kinney in 2015. Alvin
worked for Defendant Brink’s as an armored truck security guard. While Alvin was retrieving
property from a Capital One branch located at 5718 Westheimer Road in Houston, Texas, he was
shot and killed by armed robbers, who remain unidentified and at large.
Alvin’s wife, Plaintiff Rosalind Kinney, and son, Plaintiff Brett Kinney, originally
brought this wrongful death suit in state court. The defendants removed the case to federal court
(Dkt. 1), the Kinney’s filed an amended complaint (Dkt. 12), and Capital One National
Association filed an amended answer to the amended complaint on July 1, 2016 (Dkt. 37-1).

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ANALYSIS
Capital One National Association moves to designate the three unknown robbers (John
Does 1–3) as responsible third parties under the Texas Civil Practice and Remedies Code. Dkt.
38. A “responsible third party” is:
[A]ny person who is alleged to have caused or contributed to causing in any way
the harm for which recovery of damages is sought, whether by negligent act or
omission, by any defective or unreasonably dangerous product, by other conduct
or activity that violates an applicable legal standard, or by any combination of
these.
TEX . CIV . PRAC. & REM . CODE § 33.011(6).
Section 33.004 sets forth the requirements for designating an unknown responsible third
party:
(j) Notwithstanding any other provision of this section, if, not later than 60 days
after the filing of the defendant’s original answer, the defendant alleges in an
answer filed with the court that an unknown person committed a criminal act that
was a cause of the loss or injury that is the subject of the lawsuit, the court shall
grant a motion for leave to designate the unknown person as a responsible third
party if:
(1) the court determines that the defendant has pleaded facts sufficient for
the court to determine that there is a reasonable probability that the act
of the unknown person was criminal;
(2) the defendant has stated in the answer all identifying characteristics of
the unknown person, known at the time of the answer; and
(3) the allegation satisfies the pleading requirements of the Texas Rules of
Civil Procedure.
In the Third, Fourth, and Fifth Defense of its amended answer, Capital One National
Association alleges that Plaintiffs’ injuries were caused by the criminal acts of at least three
unknown assailants. See Dkt. 37-1 at 4-5. The amended answer adds no additional detail to the
facts as alleged in the amended complaint; however, Capital One National Association admits to
the truth of Paragraphs 10 and 13 of the amended complaint, which allege that Alvin worked as
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an armored truck security guard and was shot and killed during a robbery. Dkt. 37-1, ¶¶ 10, 13.
Thus, the alleged facts establish a reasonable probability that the act of these unknown
assailants—shooting Alvin Kinney in the head during a robbery—is criminal in nature. The
assailants have continued to elude law enforcement, and with little identifying information
available, the answer additionally satisfies the identifying characteristics requirement of
§ 33.004(j).
In the amended answer, Capital One National Association alleges that it had no control
over John Does 1–3 and is not liable for the actions of John Does 1–3, which constitute
independent, intervening, or superseding causes of the plaintiffs’ injuries. See Dkt. 37-1 at 4-5.
The answer sufficiently describes the defenses alleged to satisfy § 33.004(j)(3).
Chapter 33 does not apply, however, to a claim for exemplary damages. TEX . CIV . PRAC.
& REM . CODE § 33.002(c)(2); Eisenstadt v. Tel. Elecs. Corp., No. 3:06-CV-1196-O, 2008 WL
4452999, at *2 (N.D. Tex. Sept. 30, 2008). Thus, to the extent Capital One National Association
seeks to designate responsible third parties regarding Plaintiffs’ claim for punitive damages, the
motion is denied. The motion is otherwise granted.
CONCLUSION
For these reasons, the Court grants Capital One National Association’s motion for leave
to designate unknown responsible third parties. John Does 1–3 are hereby designated as
responsible third parties whose negligence will be submitted to the trier of fact for consideration,
except on the issue of exemplary damages.
Signed at Houston, Texas, August 18, 2016.

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