Small v. Ramsey et al

Filing 246

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS MOTION TO DISMISS DKT. NO. 177 DENIES as to 177 Green Acress Motion to Dismiss. Signed by District Judge Irene M. Keeley on 6/27/2011. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TOBY LYNN SMALL,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:10CV121
(Judge Keeley)

JAMES R. RAMSEY, JACK B. KELLEY,
INC., AMERIGAS PROPANE LP, WILLIE
MCNEAL, WAYNE CONCRETE CO., INC.,
TRINITY HIGHWAY PRODUCTS, LLC,
STATE FARM MUTUAL AUTO INS. CO.,
LARRY SLAVENS and PATRICIA N. PAUL,
Defendants,
and
GREEN ACRES CONTRACTING
COMPANY, INC.,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [DKT. NO. 177]

I. INTRODUCTION
Pending before the Court is the motion to dismiss of the
third-party

defendant,

Green

Acres

Contracting

Company,

Inc.

(“Green Acres”). For the reasons that follow, the Court DENIES
Green Acres’s motion to dismiss the claim of the plaintiff, Toby
Lynn Small (“Small”) (dkt. no. 177).
II. FACTUAL BACKGROUND
This case arises from a three car accident that occurred on I79 in the winter of 2009. While traveling south on I-79 near mile

SMALL V. RAMSEY, ET AL.

1:10cv121

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [DKT. NO. 177]
marker 96 on February 20, 2009, Small’s vehicle crossed a bridge,
skidded on ice and into the southbound median (dkt. no. 1). After
his vehicle came to a stop, Small got out to inspect for damage
(dkt. no. 1). While Small was standing alongside the median
inspecting his vehicle, James Ramsey (“Ramsey”), who also was
traveling south on I-79, skidded on the same icey road surface,
lost control of his 2005 Nissan Frontier, and spun around in the
roadway (dkt. no. 1). Meanwhile, the defendant, Willie McNeal
(“McNeal”), a truck driver also traveling south on I-79 in a 2001
International tractor trailer, approached the scene and struck
Ramsey’s Nissan, which then swerved onto the right shoulder of the
southbound lane and collided with the guardrail (dkt. no. 1).
McNeal then steered the tractor trailer onto the left shoulder of
the southbound lane where it struck a high tension median cable
barrier (dkt. no. 1). As a result of that impact, the cable barrier
snapped and struck Small, who suffered severe injuries (dkt. no.
1).
III.

PROCEDURAL HISTORY

On June 11, 2010, Small commenced this lawsuit in the Circuit
Court of Harrison County, West Virginia, against Ramsey, McNeal and
seven others defendants, including Jack B. Kelley, Inc. (“JBK,

2

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1:10CV121

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [DKT. NO. 177]
Inc.”), Amerigas Propane LP (“Amerigas”), Wayne Concrete Co., Inc.
(“Wayne Concrete”), Trinity Highway Products, LLC (“Trinity”),
State Farm Mutual Auto. Ins. Co. (“State Farm”), Larry Slavens
(“Slavens”), and Patricia N. Paul (“Paul”) (dkt. no. 1). On
August 5, 2010, Ramsey, JBK, Inc., and McNeal removed the case to
this Court (dkt. no. 1).
Thereafter, on January 10, 2011, Wayne Concrete filed a thirdparty complaint against Green Acres (dkt. nos. 75, 84), the
subcontractor for the installation of the high tension cable
barrier. On March 18, 2011, pursuant to Fed. R. Civ. P. 14, Small
filed a direct claim against Green Acres. Because Small filed this
claim 36 days after the expiration of the applicable two-year
statute of limitations (dkt. no. 169), Green Acres has moved to
dismiss Small’s claim as time-barred.
IV. DEFENDANT’S MOTION TO DISMISS
To survive a motion to dismiss filed pursuant to Fed. R. Civ.
P.

12(b)(6),

a

complaint

must

contain

factual

sufficient to state a plausible claim for relief.

allegations
Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. V.
Twombly, 550 U.S. 544, 557 (2007). “The plausibility standard
requires a plaintiff to demonstrate more than a sheer possibility

3

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1:10CV121

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [DKT. NO. 177]
that a defendant has acted unlawfully. It requires the plaintiff to
articulate

facts,

when

adopted

as

true,

that

show

that

the

plaintiff has stated a claim entitling him to relief, i.e., the
plausibility of entitlement to relief.” Francis v. Giacomelli, 588
F.3d 186, 193 (internal quotations omitted).
Although the Court must accept factual allegations in a
complaint as true, this “tenet . . . is inapplicable to legal
conclusions.”

Id. at 1950.

Thus, a complaint may be dismissed

when the facts alleged clearly demonstrate that the plaintiff has
not stated a claim and is not entitled to relief.

5B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 at
344-45 (3d ed. 2007).

“Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”

court

to

draw

on

its

judicial

Iqbal, 129 S. Ct. at 1949 (citation

omitted).
A.

The Plaintiff’s Direct Claim under Rule 14 is Not Time-Barred
Green Acres argues that, inasmuch as Small did not file his

claim within the applicable statute of limitations, the claim is
time-barred and should be dismissed because the late filing is
prejudicial

to

it.

Small,

however,

4

argues

that,

under

West

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [DKT. NO. 177]
Virginia’s substantive law, his late-filed claim is not timebarred, even though he filed it after the statute of limitations
had run.
Pursuant to Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938),
the applicable law in a diversity case such as this is determined
by the substantive law of the state in which a district court sits.
This includes the forum state’s prevailing choice of law rules. See
Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496-97
(1941). The parties agree that, because the car accident in this
case took place in West Virginia, the substantive law of West
Virginia governs this case. See Vest v. St. Albans Psychiatric
Hosp., Inc., 182 W. Va. 228 (1989) (stating West Virginia’s general
rule of lex loci delicti in tort cases).
As discussed earlier, after Wayne Concrete’s timely filing of
a direct claim against Green Acres, Small also sued Green Acres
pursuant to Fed. R. of Civ. P. 14(a). Rule 14, in pertinent part,
provides that
[t]he plaintiff may assert against the third-party
defendant any claim arising out of the transaction or
occurrence that is the subject matter of the plaintiff’s
claim against the third-party plaintiff. The third-party
must then assert any defense under Rule 12[.]
Fed. R. Civ. P. 14(a)(3). The parties agree that Small’s claim
against Green Acres arose out of the accident that occurred on
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [DKT. NO. 177]
February 20, 2009, and that he may pursue it unless Green Acres can
assert a valid defense under Fed. R. Civ. P. 12. The parties
further agree that the applicable two-year statute of limitations
governs Small’s claim and that he filed that claim after the
statute had run. W. Va. Code § 55-2-12.
Under West Virginia law, the statute of limitations will only
bar a plaintiff’s direct claim against a third-party defendant if
the third-party defendant can establish that it would suffer
“substantial prejudice” from the late filing. Hickman v. Grover,
358 S.E.2d 810, 814 (W. Va. 1987). Based on this rule, in order for
Green Acres to establish that Small’s claim is time-barred, it must
demonstrate

that

it

will

suffer

“substantial

prejudice”

from

Small’s late filing. Id.
The standard for demonstrating substantial prejudice is set
forth in Hickman, where a plaintiff, who was injured when an air
tank exploded, sued the air tank owner. Id. at 118. The day before
the applicable statute of limitations expired the defendant air
tank owner filed a third-party complaint against the manufacturer
of the air tank. Id.

Then, approximately six months after the

statute of limitations had expired, the plaintiff also sued the
manufacturer of the air tank. Id. Although the plaintiff filed his

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [DKT. NO. 177]
suit after the statute of limitations had expired, the circuit
court denied the air tank manufacturer’s motion to dismiss, stating
that the manufacturer was already actively defending the thirdparty suit and would suffer no substantial prejudice by having to
defend the plaintiff’s late-filed claim as well. Id. at 815.
On appeal, the Supreme Court of Appeals of West Virginia
affirmed the trial court’s holding that, unlike first-party claims,
a plaintiff may assert a claim against a third-party defendant
regardless of the expiration of the statute of limitations, unless
the third-party defendant can demonstrate “substantial prejudice”
as a result of the late-filed claim. Id.

West Virginia’s highest

court further held that, because the third-party defendant was
already defending the case, it had suffered no prejudice as a
consequence of the plaintiff’s late-filed claim. Id.
Here, Green Acres argues that it will suffer prejudice if
Small is allowed to pursue his direct claim. Asserting it will be
exposed to liability as a first-party defendant rather than as a
third-party defendant, it argues that such increased exposure could
eventually make it solely liable to Small if the other defendants
are eventually dismissed from the case. Green Acres also argues

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [DKT. NO. 177]
that it will be prejudiced if it is unable to rely on its “right to
repose” under the statute of limitations.1
Given the holding in Hickman, which is on fours with the facts
here, Green Acres has failed to articulate any facts demonstrating
that the statute of limitations bars Small’s claim.
V. CONCLUSION
For the reasons discussed, the Court DENIES Green Acres’s
motion to dismiss (dkt. no. 177).
It further DIRECTS the Clerk to transmit copies of this order
to counsel of record.
It is so ORDERED.
DATED: June 27, 2011
/s/ Irene M. Keeley
Irene M. Keeley
United States District Judge

¹
The “right to repose” is a doctrinal right intended
to “protect defendants. . . from having to deal with cases in
which the search for truth may be seriously impaired by the
loss of evidence, whether by death or disappearance of
witnesses, fading memories, disappearance of documents, or
otherwise.” See Crum v. Equity Inns, Inc., 224 W.Va. 246, 251-52
(W. Va. 2009); also Rotella v. Wood, 528 U.S. 549, 555 (2000).
8