Benedict v. Hankook Tire Company Limited et al
Filing
362
MEMORANDUM OPINION. See Opinion for details. It is so ORDERED. Signed by District Judge Robert E. Payne on 2/16/2018. (sbea, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
FEB I 6 2Dt8
Richmond Division
CLERK, U.S. DISTRICT COURT
RICHMOND VA
ROBERT BENEDICT,
Plaintiff,
v.
Civil Action No. 3:17-cv-109
HANKOOK TIRE COMPANY
LIMITED, et al.,
Defendants.
MEMORANDUM OPINION
This matter is before the Court on Plaintiff Robert Benedict's
MOTION TO STRIKE AFFIRMATIVE DEFENSES
following reasons,
( ECF No.
337) .
For the
the Court grants in part and denies in part
Benedict's motion.
BACKGROUND
In this products liability action, Robert Benedict sues Hankook
Tire Company Limited ("HTCL") and Hankook Tire America Corporation
( "HTAC")
for
the
production and distribution
of an allegedly
defective tire. Benedict seeks to strike several of Defendants'
affirmative defenses pursuant to Federal Rule of Civil Procedure
12 ( f) •
A.
Factual Context
A detailed overview of the facts of this case appears in the
Court's Memorandum Opinions resolving Benedict's and Defendants'
motions for summary judgment ( ECF Nos. 341, 34 3) . In short, however,
this action involves a single-vehicle accident that occurred when
the front right tire {the "subject tire") of a cement truck driven
by Benedict suffered a tread separation and the truck thereafter
collided with an embankment on the side of the road. The subject tire
was a Hankook Aurora TH08 Radial 425/65 R22.5 manufactured by HTCL
in South Korea in 2005 and distributed in the United States by HTAC.
B.
Procedural History
Benedict
liability
initially
negligence
asserted
{including
three
claims:
manufacturing
(1)
products
defect,
design
defect, and failure to warn); (2) breach of the implied warranty of
merchantability; and (3) breach of the implied warranty of fitness
for a particular purpose. First Arn. Compl. 5-11. He is now pursuing
only a negligent manufacturing claim against HTCL and an implied
warranty of merchantability claim against HTCL and HTAC. Second Arn.
Comp!. 4, 6.
In October 2017, both sides moved for summary judgment. Benedict
sought partial summary judgment to bar Defendants' contributory
negligence
defense.
Defendants
sought
summary
judgment
as
to
Benedict's active claims. The Court ruled on these motions during
a hearing held on November 20, 2017, Nov. 20, 2017 Hr'g Tr. 152, and
subsequently issued an ORDER (ECF No. 221) and Memorandum Opinions
{ECF Nos. 341, 343) formalizing its decisions.
2
After deciding these motions, the Court directed Benedict to
file a Second Amended Complaint containing only his active claims.
Nov. 20, 2017 Hr'g Tr. 162-63; ORDER (ECF No. 209). Benedict filed
his Second Amended Complaint on December 29, 2017. Defendants filed
answers to the Second Amended Complaint on January 3, 2018. Benedict
then moved to strike several affirmative defenses contained therein.
THE FEDERAL RULE OF CIVIL PROCEDURE 12(£) STANDARD
Under Rule 12(f), "[t)he court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter." Fed. R. Civ. P. 12(f). This Rule permits a court
to act "on its own" or "on motion made by a party" within specified
time limits. Id. Additionally:
In applying [Rule 12(f)], "a district court has
broad discretion in deciding whether to strike
matters from pleadings." However, "Rule 12(f)
motions are generally viewed with disfavor
'because striking a portion of a pleading is a
drastic remedy and because it is often sought
by the movant simply as a dilatory tactic.'"
Virginia Innovation Scis., Inc. v. Samsung Elecs. Co., Ltd., 11 F.
Supp. 3d 622, 630 (E.D. Va. 2014)
3
(citations omitted).
DISCUSSION
A.
The Conclusory Defenses Argument
1.
The Pleading Standard for Affirmative Defenses
Benedict's first argument is that Defendants' Third and Fifth
affirmative
defenses
fail
to
satisfy
the
applicable
pleading
standard. Pl.'s Br. 4-5.
The main question is whether the heightened pleading standard
of Bell Atlantic Corp. v. Twombly, 550 U.S. 54 4 (2007} , and Ashcroft
v. Igbal, 556 U.S. 662 (2009) , applies to affirmative defenses. This
Court has described the issue in the following way:
The United States Court of Appeals for the
Fourth Circuit has held that "[a]n affirmative
defense may be pleaded in general terms and will
be held to be sufficient . . . as long as it
gives plaintiff fair notice of the nature of the
defense." This was in accord with the decisions
of the United States Supreme Court with respect
to the pleading standards set forth in Federal
Rule of Civil Procedure 8 (a) prior to the
Supreme Court's decisions in [Twombly and
Igbal]. Since Twombly and Igbal were decided,
however, the Fourth Circuit has not addressed
whether the heightened pleading standard of
Twombly/Igbal-that alleged facts, taken as
true, plausibly support an entitlement to
relief-applies to the pleading of affirmative
defenses, and district courts are divided on the
question, including within the Eastern District
of Virginia.
The majority of the decisions from this
court,
however,
support
the
view
that
Twombly/Igbal does not apply to the pleading of
affirmative defenses because the text of
Federal Rule of Civil Procedure 8(b) (1) (A) and
(c} (1), which governs the pleading of defenses,
4
\\does not track the text of Rule 8 (a) ( 2) , " which
governs the pleading of a claim to relief.
Am. United Life Ins. Co. v. Mays, 2:17-cv-99, 2017 WL 3262251, at
*8-9 (E.D. Va. July 31, 2017) (citations omitted). In short, if the
heightened pleading standard does not apply,
'' [a] n affirmative
defense may be pleaded in general terms and will be held to be
sufficient . . . as long as it gives plaintiff fair notice of the
nature of the defense." See Clem v. Corbeau, 98 F. App'x 197, 203
(4th Cir.
2004)
(citations omitted).
\\To determine whether the
plaintiff has fair notice of the defense, the Court considers whether
'the
challenged
defenses
are
contextually
comprehensible
and
possibly related to the controversy.'" Certusview Techs., LLC v.
Usie, LLC, 2:14-cv-373, 2014 WL 12591937, at *6 (E.D. Va. Dec. 15,
2014)
( citations omitted) .
The Court is persuaded by Defendants' argument that the trend
in
this
District
in
recent
years
has
been
not
to
apply the
Twombly/Igbal standard to affirmative defenses. See Defs.' Opp'n 4;
Malibu Media, LLC v. Guastaferro, l:14-cv-1544, 2015 WL 4603065, at
*2 (E.D. Va. July 28, 2015); Malibu Media, LLC v. Popp, l:14-cv-700,
2015 WL 10937405, at *2 (E.D. Va. Apr. 13, 2015); Beasley v. Red Rock
Fin. Servs., LLC, 1:14-cv-1497, 2015 WL 13049994, at *l {E.D. Va.
Feb. 2, 2015); Certusview, 2014 WL 12591937, at *4-6; Flame S.A. v.
Indus. Carriers, Inc., 2:13-cv-658, 2014 WL 2871432, at *2 (E.D. Va.
June 24, 2014); Grant v. Bank of Am., N.A., 2:13-cv-342, 2014 WL
5
792119, at *4 (E.D. Va. Feb. 25, 2014); see also Mays, 2017 WL 3262251,
at *9 ("The majority of the decisions from this court, however,
support the view that Twombly/Igbal does not apply to the pleading
of affirmative defenses[.]").
The Court is mindful of this trend. And, it is moved by the
reasoning of these and other decisions. See, e.g., Grant, 2014 WL
792119,
at
l:10-cv-1218,
*4;
Lopez
v.
Asmar's
2011 WL 98573, at *l-2
Mediterranean
(E.D. Va.
Jan.
Food,
Inc.,
10, 2011).
Accordingly, the Court evaluates Defendants' affirmative defenses
under the lower pleading standard described above.
2.
Defendants' Third and Fifth Defenses
Benedict challenges Defendants' Third and Fifth affirmative
defenses. The Third states: "If Plaintiff sustained any damages,
there was an intervening and superseding cause or causes which led
to them. As such, any acts on the part of [Defendants] were not the
proximate cause of Plaintiff's alleged damages." HTAC's Answer &
Defenses to Pl.'s Second Am. Compl. 5 [hereinafter HTAC's Answer];
HTCL's Answer & Defenses to Pl.'s Second Am. Compl. 5 [hereinafter
HTCL's Answer). The Fifth states: "Plaintiff assumed any and all
risks associated with the use of the product that forms the subject
of this lawsuit ('Subject Tire'}." HTAC's Answer 5; HTCL's Answer
5. The Court finds that the Third defense is insufficient and the
Fifth defense is adequate.
6
The Third defense offers little specificity. Context, such as
"extensive briefing and attention," could save it. See Flame, 2014
WL 2871432, at *2. However, the context here actually renders it even
less clear.
Defendants'
contributory negligence defense was primarily
based on Benedict's alleged negligent conduct in response to the
subject tire's disablement. See HTCL & HTAC's Opp'n to Pl.'s Mot.
for Summ. J. 2. But, the Court granted Benedict's motion for summary
judgment as to this defense, holding that Defendants had failed to
produce
expert
testimony
establishing
the
standard
of
care
applicable to commercial truck drivers navigating a steer tire
failure, i.e., to Benedict. (ECF No. 341}.
Defendants
incorporating
also
by
attempted
reference
to
the
sustain
"superseding
their
defense
cause"
supporting Defendants' own motion for summary judgment.
by
arguments
(ECF No.
341). These arguments maintained that the subject tire had cuts to
its belts, that, therefore, the subject tire should have been removed
from service to comply with federal regulations, that the subject
tire was not removed from service, and that the failure to do so
constituted negligence per se. See HTCL & HTAC's Mem. in Supp. of
Mot. for Summ. J. 27-28; HTCL & HTAC's Reply in Supp. of Mot. for
Summ. J. 19-21. The Court rejected those arguments, holding that
Defendants had not shown either the negligence or causation elements
7
of negligence per se.
(ECF No. 341). In relevant part, the Court
determined that Defendants had not established that the cuts appeared
on the subject tire before the accident and that, in any case, they
had not shown that the cuts (and the failure to remove the subject
tire from service) proximately caused the accident. (ECF No. 341).
That
decision
forecloses
any
contention
that
Benedict's
response to the subject tire's disablement was negligent or that the
failure to remove the subject tire from service was negligent per
se. Additionally, it forecloses any argument that the cuts to the
subject tire (or the failure to remove the subject tire from service)
proximately caused the accident.
For a cause of harm to be superseding, that cause must "so
entirely supersede the operation of the defendant's negligence, that
it alone, without the defendant's contributing negligence thereto
in the slightest degree, produces the injury." Atkinson v. Scheer,
508 S.E.2d 68,
72
(Va.
1998)
(citations omitted).
The causes
considered superseding are generally those that are "so highly
extraordinary as to be unforeseeable." See Dorman v. State Indus.,
Inc., 787 S.E.2d 132, 139 (Va. 2016); see also Banks v. City of
Richmond, 348 S.E.2d 280, 283 (Va. 1986)
("It is not reasonably
foreseeable that a maintenance man will search for a gas leak with
fire . .
is
[T]he fact that the gas was not turned off at the meter
not legally significant.") .
Some case law suggests that a
8
superseding
cause
could be
non-negligent,
such
as
where
"the
non-negligent cause would have alone been sufficient to bring about
the injury, if the negligent cause had been absent.
fl
See Appalachian
Power Co. v. Wilson, 129 S.E. 277, 280 (Va. 1925). But, such causes
would be rare. See id.
causes,
one
negligent
("When an injury results from two combined
and
the
other
nonnegligent,
or
purely
accidental, the causes having such causal connection as to constitute
an unbroken transaction, the law places the liability on the person
responsible for the negligent cause and establishes the negligent
cause as the proximate cause . . . . "); id. at 281 (" [W] here a cause
which results in injury to a person is set in motion by another, that
other will be liable to the person injured, although the intervening
act or omission of such person was the immediate cause of his
receiving the injury,
provided . .
the latter act or omission
occurs in the exercise of ordinary care by the person injured."
(citations omitted)). Indeed, even negligent causes are not per se
superseding. SeeAPVCrepaco, Inc. v. Alltransport Inc., 683 F. Supp.
1031, 1034 (E.D. Va. 1987); Philip Morris, Inc. v. Emerson, 368 S.E.2d
268,
277
(Va.
1988).
Further,
"an intervening cause
is not
a
superseding cause if it was put into operation by the defendant's
wrongful
act
or
omission.
fl
Dorman,
787
S.E.2d at
139
(citing
Jefferson Hosp. v. Van Lear, 41 S.E.2d 441, 444 (Va. 1947)); see also
Jefferson Hosp., 41 S.E.2d at 444 {"An intervening act . . . which
9
is a normal response to the stimulus of a situation created by the
actor's
negligent
harm
. . " (citations omitted}}.
As
explained
conduct,
above,
is
not
Benedict's
a
superseding
alleged
cause
negligence
of
and
negligence per se cannot be superseding causes because the Court has
held that Benedict was not negligent or negligent per se. (ECF No.
341). Further, the cuts to the subject tire (and the failure to remove
the subject tire from service} are not superseding because the Court
has determined that there is no dispute of material fact that they
did not proximately cause the accident.
(ECF No. 341}.
Given that the superseding cause defense standard is a high bar,
moreover, it is also clear that this defense could not refer to
Benedict's non-negligent conduct in response to the subject tire's
disablement. This is because
subject
tire
failed
responsive actions,
because
(assuming for the moment that the
of
by definition,
improper
manufacturing}
his
were "put into operation by
[Defendants') wrongful act or omission," see Dorman, 787 S.E.2d at
139, and would not "alone (have] been sufficient to bring about the
injury, if the negligent cause had been absent," see Appalachian,
129 S.E. at 280. Furthermore, where, as here, "a cause which results
in injury to a person is set in motion by another," an "act or omission
of the person injured, if it occurs in the exercise of ordinary care
on the part of the latter, cannot be regarded as the proximate cause
10
of the injury." See Appalachian, 129 S.E. at 281 {emphasis added)
(citations omitted).
Indeed,
it is unthinkable that a driver's
non-negligent response to a tire failure caused by Defendants'
alleged improper manufacturing could be "so highly extraordinary as
to be unforeseeable." See Dorman, 7 8 7 S. E. 2d at 139. Rather, any such
conduct inherently constitutes "a normal response to the stimulus
of [the] situation" created by Defendants. See Jefferson Hosp., 41
S.E.2d at 444.
In short,
Benedict's actions could not have "so
entirely supersede[d] the operation of [Defendants'] negligence,
that [they] alone, without [Defendants'] contributing negligence
thereto
in
the
slightest degree,
produce [d]
the
injury."
See
Atkinson, 508 S.E.2d at 72 {citations omitted) . 1
Given
that
Defendants
cannot
rely
on
Benedict's
alleged
negligence, his alleged negligence per se, the cuts to the subject
tire, the failure to remove the subject tire from service, or his
non-negligent response to the tire disablement to sustain their
superseding cause defense, it is otherwise unclear what acts or
events Defendants intend to rely upon to sustain this defense. Hence,
their "threadbare" affirmative defense fails to provide Benedict
with "fair notice." See Flame, 2014 WL 2871432, at *3. Defendants
1
It is true that "issues of negligence and proximate cause
ordinarily questions of fact for a jury." Poliquin v. Daniels,
S.E.2d 530, 534 (Va. 1997). However, these may be questions of
"when reasonable minds could not differ." Id. The Court does
believe that reasonable minds could differ on this point.
11
are
486
law
not
will be granted leave to re-plead this defense to correct that
deficiency. Additionally, to the extent that Defendants' other, more
detailed, defenses were intended to ref er to their superseding cause
defense, Defendants are directed to consolidate these defenses and
to clarify the issues to which they relate. 2
The Fifth defense is adequate because, in the context of a
products liability suit involving a tire disablement, it is clear
that this defense refers to Benedict having assumed the risk of a
tire failure. See Certusview, 2014 WL 12591937, at *15. There is no
other product that could be at issue or risk that could be assumed.
Furthermore, this defense could refer only to the negligence claim,
not the implied warranty claim, because assumption of the risk is
not a defense to implied warranty claims. See Wood v. Bass Pro Shops,
Inc., 462 S.E.2d 101, 103 (Va. 1995) . 3
2
It appears that a superseding cause defense would be applicable to
implied warranty claims as well as negligence claims. See Dorman,
787 S.E.2d at 139-40; see also Cooper v. Ingersoll Rand Co., 628 F.
Supp. 1488, 1494-96 (W.D. Va. 1986). Cf. Logan v. Montgomery Ward
& Co., Inc., 219 S.E.2d 685, 688 (Va. 1975) ("[O]ccasionally there
is a malfunction which cannot be attributed to negligence or breach
of warranty by the rnanuf acturer or seller, but rather is attributable
solely to the negligence of the installer or the purchaser, or to
some unknown cause."). Accordingly, to the extent that Defendants
are raising a superseding cause defense to Benedict's implied
warranty claim, the same analysis provided above applies.
3
Benedict appears to be suing only HTCL for negligence. See Second
Arn. Compl. 4. Nevertheless, HTAC can raise this defense given that
Benedict may have factually pleaded a negligence claim against it.
12
In sum, Benedict's motion is granted as to the Third affirmative
defense, which will be stricken without prejudice, and it will be
denied as to the Fifth affirmative defense.
B.
The Previously Resolved Contributory Negligence Defense
Argument
Benedict also argues that Defendants' Sixth affirmative
defense, their contributory negligence defense, was resolved by this
Court's ruling on Benedict's motion for surrunary judgment. Pl.'s Br.
5; see also HTAC's Answer 5; HTCL's Answer 5. Benedict is correct.
(ECF Nos. 221, 341). The Court recognizes that Defendants have
reasserted this defense to preserve it for the record. Nov. 20, 2017
Hr'g Tr. 163-64.
Accordingly, the Court grants Benedict's motion as to this issue
and strikes Defendants' Sixth affirmative defense with prejudice. 4
C.
The Warranty Defenses Argument
Benedict further contends that Defendants' warranty defenses
(the Sixteenth, Seventeenth, and Eighteenth affirmative defenses)
should be stricken to the extent that the Court agrees with his
4
Defendants' Sixth defense erroneously refers to "Plaintiff's
and/or other third parties' contributory negligence.ll See HTAC's
Answer 5; HTCL's Answer 5. Contributory negligence relates only to
a plaintiff's negligence. See Rascher v. Friend, 689 S.E.2d 661,
664-65 (Va. 2010); Sawyer v. Comerci, 563 S.E.2d 748, 752-53 (Va.
2002). Thus, to the extent that this aspect of Defendants' Sixth
defense was not resolved by the Court's ruling on Benedict's motion
for surrunary judgment, it is insufficient as a matter of law and
stricken with prejudice for that reason.
13
argument, raised in his brief in opposition to Defendants' motion
for
summary
judgment,
that
"Defendants'
evidence . . . is
so
deficient that he is entitled to judgment as a matter of law." Pl.'s
Br. 5-6; see also HTAC's Answer 7; HTCL's Answer 7.
Although the Court denied Defendants'
motion
for
summary
judgment, it declined to grant summary judgment in Benedict's favor
based on arguments contained in his opposition brief. Rather, the
Court directed Benedict to file his own motion, in light of the
Court's ruling, if he wished to seek summary judgment as to these
defenses. (ECF No. 34 3} . Accordingly, there is no ground for the Court
to strike Defendants' warranty defenses
(Defendants'
Sixteenth,
Seventeenth, and Eighteenth affirmative defenses} at this time. 5
Therefore,
Benedict's motion will
be denied as
to
those
defenses.
5
Benedict's reply brief, filed after the Court's Opinion denying
Defendants' motion for summary judgment was released, concedes this
point. Pl.'s Reply Br. 7.
14
CONCLUSION
For
the
foregoing
reasons,
Benedict's
MOTION
TO
STRIKE
AFFIRMATIVE DEFENSES (ECF No. 337) is granted in part and denied in
part. 6
It is so ORDERED.
Isl
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: February ).A_, 2018
6
The Court notes that several of Defendants' "affirmative defenses"
are simply negations of various elements of negligence or of
allegations in the Second Amended Complaint. These are not true
affirmative defenses. Moreover, many of these defenses are
repetitive or redundant. Benedict has not moved to strike on these
grounds, but the Court grants leave to Defendants to properly
identify and consolidate their defenses in their revised answers.
15
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