White et al v. Steve Simpson & Associates, Inc. et al

Filing 40

MEMORANDUM OPINION AND ORDER GRANTING AS FRAMED 28 THIRD-PARTY DEFENDANTS MOTION TO DISMISS. Therefore, the claims against the third-party defendant The Estate of Michael B. White are DISMISSED WITHOUT PREJUDICE. The Estate of Michael B. White terminated. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/22/2015. (copy to counsel of record via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TODD WHITE and SUSAN WHITE,
Plaintiffs,
v.

Civil Action No. 5:15CV20
(STAMP)

STEVE SIMPSON & ASSOCIATES, INC.,
a foreign corporation and
DONALD W. HALE, individually
and as an agent of
STEVE SIMPSON & ASSOCIATES, INC.
Defendants and
Third-Party Plaintiffs,
v.
THE ESTATE OF MICHAEL B. WHITE,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING AS FRAMED THIRD-PARTY
DEFENDANT’S MOTION TO DISMISS
I.

Background

The plaintiffs, Todd White and Susan White, are son and mother
(respectively).

Defendant Donald W. Hale (“Hale”) is allegedly an

agent and employee of defendant Steve Simpson & Associates, Inc.
(“Simpson”).

The decedent, Michael B. White,1 operated a vehicle

in which the plaintiffs were passengers.

In September 2013,

defendant Hale’s vehicle collided with White’s vehicle, and the
plaintiffs sustained serious injuries.

1

The plaintiffs allege that

It is unclear whether Michael B. White died as a result of
the automobile accident.

defendant Hale operated his vehicle while acting in the scope of
his employment as an agent for defendant Simpson. In their amended
complaint,

which

was

originally

filed

in

state

court,

the

plaintiffs allege four counts against the defendants. Those counts
are the following: (1) negligence against defendant Hale; (2)
negligence of the defendants collectively; (3) negligence per se of
the

defendants

collectively;

and

(4)

negligence

of

defendant

Simpson by hiring, training, supervising, and entrusting defendant
Hale.

After the defendants removed this civil action, they each

filed a third-party complaint against the Estate of Michael White
(“the

Estate”).

ECF

Nos.

6

and

10.

In

their

third-party

complaints, the defendants seek contribution and indemnity as to
the plaintiffs’ claims.
At

issue

now

is

the

Estate’s

motion

titled

“motion

dismiss/motion to strike and/or motion for summary judgment.”
No. 28.

to
ECF

In that motion, the Estate points out that the plaintiffs

and the Estate obtained a settlement on May 5, 2015.
provides copies of the two settlement agreements.

The Estate
Although the

Estate informed defendants Hale and Simpson of the settlements, the
defendants will not dismiss their claims against the Estate.
Before agreeing to dismiss the Estate, the defendants seek a
stipulation which would impose additional legal requirements upon
the Estate as to fault, if any, of the decedent in the accident.
The most disputed proposed requirement is that the defendants wish

2

to have the decedent listed on the verdict form.

Because of the

prior settlement and its terms, the Estate requests that this Court
dismiss the third-party complaints.
The

defendants,

however,

argue

that

their

third-party

complaints do not seek to apportion fault between them and the
decedent. Rather, they allege that the decedent was the sole cause
of the accident.

Because of that claim, the defendants contend

that the decedent must remain on the verdict form so that the jury
may assess the comparative fault of all involved persons.

In

support of their contention, they cite Modular Bldg. Consultants of
W. Va., Inc. v. Poerio, Inc., 774 S.E.2d 555 (W. Va. 2015).

The

defendants contend that not including the decedent on the verdict
form would prevent the defendants from making their strongest
defense, which is the decedent’s fault in the accident. Therefore,
the defendants request that this Court deny the pending motion to
dismiss. The defendants also object to the dismissal of the Estate
to the extent that the decedent would not appear on the verdict
form.

Otherwise, if the decedent may remain on the verdict form,

then the defendants do not object to dismissing the third-party
complaints without prejudice. The Estate did not file a reply, and
the plaintiffs did not file a response.
For the reasons set forth below, the Estate’s motion to
dismiss is GRANTED AS FRAMED.

3

II.

Applicable Law

In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court must accept all well-pled facts contained in the complaint as
true.

Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc, 591 F.3d

250, 255 (4th Cir. 2009). However, “legal conclusions, elements of
a cause of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule 12(b)(6)
purposes.”
(2009)).

Id. (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
This

Court

also

declines

to

consider

“unwarranted

inferences, unreasonable conclusions, or arguments.”

Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir.
2009).
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest
about the facts or the merits of the case.

5B Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
1998).

The Rule 12(b)(6) motion also must be distinguished from a

motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.

Id.

For

purposes of the motion to dismiss, the complaint is construed in
the

light

most

favorable

to

the

4

party

making

the

claim

and

essentially

the

court’s

inquiry

is

directed

to

whether

the

allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).

Id. § 1357.

A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).

Detailed

factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.
III.

Discussion

As stated earlier, the Estate ultimately settled with the
plaintiffs. The Estate substantiates that fact by providing copies
of

the

settlement

agreements.

Those

settlement

agreements

explicitly state that the plaintiffs “RELEASED, ACQUIT, and FOREVER
DISCHARGE” the Estate from “any and all claims” that may arise from
the automobile accident in September 2013.

ECF No. 29 Ex. A.

With

those settlement agreements in mind, the Estate argues that the
defendants now seek contribution in their third-party complaints.
The Estate points out that the Supreme Court of Appeals of West

5

Virginia previously held that a “party in a civil action who has
made a good faith settlement with the plaintiff prior to a judicial
determination of liability is relieved from any liability for
contribution.”

Syl. Pt. 6, Bd. of Edu. of McDowell County v.

Zando, Martin & Milstead, Inc., 390 S.E.2d 796 (W. Va. 1990).
Despite the holding from Zando and its settlement with the
plaintiffs,

the

defendants

seek

potential dismissal of the estate.

a

stipulation

regarding

the

The Estate takes issue with

that proposed stipulation of dismissal by the defendants as to the
Estate.

The parties’ dispute primarily concerns whether the

decedent should be placed on the verdict form for purposes of
comparative fault analysis.

See ECF No. 29 Ex. D.

Based on the

above-quoted holding of Zando, the Estate asserts that it is
entitled to the “legally mandated dismissal of the third-party
claim.”

ECF No. 29.

The defendants, however, direct this Court’s attention to
Modular Bldg. Consultants of W. Va. v. Poerio, Inc., 774 S.E.2d 555
(W. Va. 2015). In particular, the defendants point out the Supreme
Court of Appeals of West Virginia’s support of the following:
“‘[i]n order to obtain a proper assessment of the total amount of
the plaintiff’s contributory negligence under our comparative
negligence rule, it must be ascertained in relation to all of the
parties whose negligence contributed to the accident, and not
merely those defendants involved in the litigation.’”

6

Modular

Bldg., 774 S.E.2d at 566 (quoting Syl. Pt. 3, Bowman v. Barnes, 282
S.E.2d 613 (W. Va. 1981)).

Furthermore, the defendants contend

they allege not only a contribution claim, but also that the
decedent was the sole cause of the automobile accident.
Nos.

8

and

decedent’s

10.

Therefore,

liability

contribution.

the

extends

defendants

far

beyond

believe
their

See ECF
that

claim

the
for

Moreover, the defendants state that they intend to

present ample evidence of the decedent’s alleged negligence.

For

those reasons, the defendants believe that the decedent should
appear on the verdict form.

As mentioned earlier, however, the

defendants state that they are willing to “agree to a dismissal
without prejudice provided that the [d]ecedent’s name stays on the
verdict form and provided that nothing later discovered casts doubt
on the Estate’s claim that its settlement with the Plaintiffs was
in good faith.”

ECF No. 30.

Under West Virginia law, a “party in a civil action who has
made a good faith settlement with the plaintiff prior to a judicial
determination of liability is relieved from any liability for
contribution.”

Zando, 390 S.E.2d at syl. pt. 6.

As a more general

principle under West Virginia, “[i]t is improper for counsel to
make arguments to the jury regarding a party’s omission from a
lawsuit or suggesting that the absent party is solely responsible
for the plaintiff’s injury where the evidence establishing the
absent party’s liability has not been fully developed.”

7

Syl. Pt.

2, Doe v. Wal-Mart Stores, Inc., 558 S.E.2d 663 (W. Va. 2001).
However, “‘[i]n order to obtain a proper assessment of the total
amount

of

the

plaintiff’s

contributory

negligence

under

our

comparative negligence rule, it must be ascertained in relation to
all of the parties whose negligence contributed to the accident,
and not merely those defendants involved in the litigation.’”
Modular Bldg., 774 S.E.2d at 566 (quoting Bowman, 282 S.E.2d at
syl. pt. 3) (emphasis added).

Moreover, “Without some proof of

negligence by the plaintiff, there is no requirement that the jury
be instructed to ascertain or apportion fault between the defendant
and a non-party tortfeasor.”

Rowe v. Sisters of the Pallottine

Missionary Soc’y, 560 S.E.2d 491, 499 (W. Va. 2001).

The Supreme

Court of Appeals of West Virginia has also provided that an immune
defendant

may

be

placed

on

the

verdict

form

as

required

by

“equitable principles of fairness, the concepts underlying the
doctrine of comparative negligence, and this Court’s ruling in
Bowman.”

Modular Bldg., 774 S.E.2d at 566 (internal citations and

quotations omitted).

Inclusion of such a defendant also helps to

mitigate the risk of prejudice to the remaining parties regarding
the determination of comparative fault.

Id.

In analyzing the case law discussed above, it is clear that a
claim for contribution against the Estate is impermissible under
Zando.

The Court in Zando made it abundantly clear that a party

who makes “a good faith settlement with the plaintiff prior to a
8

judicial determination of liability is relieved from any liability
for contribution.”
the

plaintiffs

settlement

390 S.E.2d at syl. pt. 6.

reached

a

agreements.

settlement,
Therefore,

as

to

Here, the Estate and
provided

the

extent

under

the

that

the

defendants assert a claim for contribution against the Estate, such
a claim cannot proceed.

Thus, the Estate’s motion should be

granted as framed to that extent.
However, the defendants are correct in stating that their
third-party complaints seek more than contribution. The defendants
contend that the decedent was the sole cause of the accident. They
request that the decedent be included on the verdict form so that
the jury may determine the comparative fault of all persons
involved. In support of that request, the defendants also indicate
that they have evidence that establishes the decedent’s negligence.
The defendants point to forthcoming testimony of both their expert
witness and defendant Hale, and an affidavit by their expert
witness

that

demonstrates

the

liability in this civil action.

importance

of

the

decedent’s

Those items demonstrate that the

defendants intend to provide proof of the decedent’s negligence.
“Without some proof of negligence . . . there is no requirement
that the jury be instructed to ascertain or apportion fault between
the defendant and a non-party tortfeasor.”
499.

Rowe, 560 S.E.2d at

Here, assuming that the defendants ultimately provide the

forthcoming testimony, then the defendants may satisfy the proof of

9

negligence requirement.

More importantly, the Supreme Court of

Appeals of West Virginia has held that a settling defendant may
remain on the verdict form when evidence of negligence exists as to
that defendant.

Modular Bldg., 774 S.E.2d at 566; see also Landis

v. Hearthmar, LLC, 750 S.E.2d 280 (W. Va. 2013); Rowe, 560 S.E.2d
at 491; Bowman, 282 S.E.2d at 613.

Based on the case law discussed

above, it is clear that West Virginia law permits the decedent in
this civil action to be listed on the verdict form above.

If the

decedent in this civil action were not listed on the verdict form,
then the jury could not properly ascertain the comparative fault
“in relation to all of the parties whose negligence contributed to
the accident, and not merely those [parties] involved in the
litigation.” Bowman, 282 S.E.2d at syl. pt. 3.; see Modular Bldg.,
774 S.E.2d at 566.

Phrased another way, “simple fairness would

seem to require it under these circumstances.”
S.E.2d at 566.
is

granted

as

Modular Bldg., 774

Therefore, although the Estate’s motion to dismiss
framed

and

the

claims

against

the

Estate

are

dismissed without prejudice, the decedent’s name may be stated on
the verdict form.
IV.

Conclusion

For the reasons set forth above, the motion to dismiss the
third-party defendant The Estate of Michael B. White is GRANTED AS
FRAMED.

Therefore, the claims against the third-party defendant

The Estate of Michael B. White are DISMISSED WITHOUT PREJUDICE.

10

However, pursuant to the agreement proposed by the defendants in
their response to the motion to dismiss, decedent’s name shall be
included on the verdict form to assess the comparative fault of the
parties.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

October 22, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

11