Bentler et al v. Haner et al

Filing 22

MEMORANDUM OPINION AND ORDER granting plaintiffs' 12 MOTION for leave to extend time to file a response in opposition to the motion to dismiss; denying the defendants' 4 MOTION to Dismiss without prejudice to the Haners raising anew the issues found therein at the summary judgment stage of the case. Signed by Judge John T. Copenhaver, Jr. on 12/26/2012. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
LAWANDA BENTLER,
individually and as
Next friend and
legal guardian of,
DESTINY A. BENTLER,
a minor child,
Plaintiffs,
v.

Civil Action No. 2:12-1682

THE ESTATE OF JOHN W. HANER and
PHILLIP H. HANER, individually ,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are the defendants' motion to dismiss filed July
23, 2012, and plaintiffs' motion for leave to extend time to file
a response in opposition to the motion to dismiss ("motion for
leave to extend"), filed September 28, 2012.
The motion for leave to extend was prompted by an
inquiry from the court's law clerk respecting whether the motion
to dismiss was opposed.
for leave to extend.

The defendants do not oppose the motion

Inasmuch as the untimely response brief

amounts to a non-prejudicial oversight for which corrective action
will allow a merits-based adjudication of the matter, the court
ORDERS that the motion for leave to extend be, and it hereby is,

granted.

Having additionally received the defendants' October 5,

2012, reply respecting the motion to dismiss, the matter is deemed
submitted.

I.

Plaintiff Lawanda Bentler is the mother of fellow
plaintiff Destiny A. Bentler.

John W. F. Haner, now deceased, was

a North Carolina resident at all times relevant.

Defendant

Phillip H. Haner is alleged to be a resident of Pennsylvania with
a "last known address" of Ellijay, Georgia.

(Compl. ¶ 3).

The Haners own three houses in Boone County that were
built prior to 1978.

Since at least March 2004, two of the houses

were leased to Joanne Clarke on a month-to-month basis.

Ms.

Clarke, in turn, sublet one of the houses to Lawanda Bentler from
approximately March 26, 2004, through at least October 24, 2007.
During the Clarke-Bentler sublease period, Ms. Bentler
resided in the house with Destiny.

In "approximately 2007,"

(Compl. ¶ 7), Destiny was tested and exhibited elevated lead
levels.

On October 22, 2007, officials with the West Virginia

Department of Health and Human Resources inspected the subleased
house.

The inspection revealed peeling and flaking lead-based

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paint on both the interior and exterior of the house.

Elevated

lead levels were also found in the soil surrounding the home.
On May 25, 2011, the Bentlers instituted this action
against the Haners.

They allege that "[t]he elevated lead levels

[are] . . . harmful to . . . [Destiny] and will . . . cause future
medical problems which are permanent in nature."

(Compl. ¶ 9).

In addition to pleading a negligence claim, the Bentlers also
allege as follows:
Lawanda Bentler . . . is . . . entitled to loss of
filial consortium based upon the injuries suffered by
her child as a result of the Defendants' conduct.
(Compl. ¶ 15).

The Bentlers seek damages "that will fairly

compensate them for their injuries and damages, both past, present
and future . . . ."

(Id. at WHEREFORE clause).

The Haners move to dismiss Lawanda Bentler's filial
consortium claim.

They assert that West Virginia does not

recognize that cause of action.

They additionally contend that

Destiny's elevated lead levels were discovered in approximately
2007, barring Lawanda Bentler's filial consortium claim in any
event.

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II.

A.

Governing Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a
pleader provide “a short and plain statement of the claim showing
. . . entitle[ment] to relief.”

Fed. R. Civ. P. 8(a)(2); Erickson

v. Pardus, 127 S. Ct. 2197, 2200 (2007).

Rule 12(b)(6) permits a

defendant to challenge a complaint when it “fail[s] to state a
claim upon which relief can be granted . . . .”

Fed. R. Civ. P.

12(b)(6).
The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds, Twombly, 550 U.S. at 563); see also
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007).

In

order to survive a motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”

Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); see also
Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir.
2009).

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Application of the Rule 12(b)(6) standard requires that
the court “‘accept as true all of the factual allegations
contained in the complaint . . . .’”

Erickson, 127 S. Ct. at 2200

(quoting Twombly, 127 S. Ct. at 1965); see also South Carolina
Dept. Of Health And Environmental Control v. Commerce and Industry
Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v.
Ross, 313 F.3d 184, 192 (4th Cir. 2002)).

The court must also

“draw[] all reasonable . . . inferences from th[e] facts in the
plaintiff's favor . . . .”

Edwards v. City of Goldsboro, 178 F.3d

231, 244 (4th Cir. 1999).

B.

Analysis

In Losh v. Teton Transp., Inc., No. 3:09-1495, 2010 WL
5343216 (S.D. W. Va. Dec. 21, 2010), the court confronted the same
unanswered question presented in this action, namely, "whether
West Virginia permits a parent of a minor child who is injured by
a third-party tortfeasor to recover damages for loss of filial
consortium."

Id. at *1.

Following a discussion of the limited

guidance offered by the Supreme Court of Appeals of West Virginia
on the point, along with the competing views in other
jurisdictions, Judge Chambers observed as follows:
Notwithstanding the foregoing discussion, . . . the
instant proceedings are still at a relatively early
stage. Therefore, the Court at this time declines to
issue a ruling on this matter of first impression in
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West Virginia. The Court thus DENIES the defendants'
motion WITHOUT PREJUDICE. The defendants remain free to
raise this matter again on a motion for summary judgment
if they so desire at the appropriate point in the
proceedings.
Id. at *3.
Judge Chambers' approach is well considered.

By the

time this matter advances to the summary judgment stage, it is
possible that the Legislature or the supreme court of appeals will
have resolved the presently unsettled state of the law on the
point.

Additionally, a complete evidentiary record may provide

this court, and any other tribunal subsequently faced with the
question, with yet another set of circumstances to inform the
policy considerations that might aid in making the choice between
the competing approaches.
This same pause is warranted respecting the Haners'
limitations defense, for which a similar split of authority
appears to have developed.

See, e.g., John H. Derrick, Tolling of

Statute of Limitations, on Account of Minority of Injured Child,
As Applicable To Parent's or Guardian's Right of Action Arising
Out of Same Injury, 49 A.L.R.4th 216 (1986 and elec. supp. 2012);
4 J.D. Lee & Barry Lindahl, Modern Tort Law: Liability and
Litigation § 29:34 (2nd ed. elec. 2012).

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The court, accordingly, ORDERS that the Haners' motion
to dismiss be, and it hereby is, denied without prejudice to the
Haners raising anew the issues found therein at the summary
judgment stage of the case.
The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
ENTER: December 26, 2012
John T. Copenhaver, Jr.
United States District Judge

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