2019 WL 1006241

United States District Court, S.D. Mississippi, Southern Division.
TINA WITTE PLAINTIFF
v.
ZURICH AMERICAN INSURANCE COMPANY and JOHN CHRISTNER TRUCKING, LLC DEFENDANTS
Civil No. 1:18v214-HSO-JCG
|
Filed 03/01/2019

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT ZURICH AMERICAN INSURANCE COMPANY’S MOTION [6] TO DISMISS, OR ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT
HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
*1 BEFORE THE COURT is the Motion [6] to Dismiss, or Alternatively, Motion for Summary Judgment filed by Defendant Zurich American Insurance Company. After due consideration of the Motion, related pleadings, the record, and relevant legal authority, the Court finds that Defendant Zurich American Insurance Company’s Motion [6] to Dismiss should be granted in part and denied in part, and Plaintiff Tina Witte’s claim against Defendant Zurich American Insurance Company for injunctive relief contained in Count I of the Amended Complaint [4] should be dismissed with prejudice. Plaintiff’s remaining claims will proceed.

I. BACKGROUND

A. Factual background

1. Plaintiff’s accident and injuries
This case arises out of an 18-wheeler tractor trailer rollover which occurred in Picayune, Mississippi, on June 23, 2016, while Plaintiff Tina Witte (“Plaintiff” or “Witte”) was a passenger in the truck’s sleeper car. See Am. Compl. [4] at 2. Plaintiff worked as a truck driver and maintained an occupational accident insurance policy (the “Policy”) with Defendant Zurich American Insurance Company (“Zurich”). See id. at 3; see also Policy [4-2] at 1-21. The Policy offered various benefits, including coverage for Accident Medical Expense, for Temporary Total Disability, and for Continuous Total Disability. See Policy [4-2] at 4.

Plaintiff asserts that she sustained severe injuries as a result of the accident, which she characterizes as an occupational one. See Am. Compl. [4] at 3. Accordingly, she made a claim under the Policy, and Zurich has allegedly conceded that her claim should be paid as an occupational accident claim. Id. However, Zurich has taken the position that under the terms of the Policy, all medical treatment ceases after two years from the date of the accident, regardless of the circumstances. Id.

The Amended Complaint alleges that, at Zurich’s request, Plaintiff underwent a medical examination performed by Dr. P. Caudill Miller, who opined that Plaintiff “has very significant impairment from her injuries, those injuries were disabling, and the injuries were directly and solely caused by the June 23, 2016 accident.” Id. “Dr. Miller further opined that Plaintiff undergo a vertebroplasty, a surgical procedure where bone cement is injected into the vertebrae to stabilize the spine.” Id. at 4. Plaintiff’s treating physician also recommended that she undergo the vertebroplasty, but Zurich informed her that if the surgery was not performed within 104 weeks of the date of the accident, or prior to June 21, 2018, it would not be covered. Id. Plaintiff maintains that this 104-week time limit for receiving medical benefits has interfered with her medical treatment and that this provision of the Policy should be invalidated as inconsistent with Mississippi Code § 71-3-5. Id. at 4-6.

Plaintiff also claims that although the Policy allows for 104 weeks of Temporary Total Disability benefits, Zurich has only paid her for 36 weeks of such benefits, even though she was entitled to them beginning on June 23, 2016, and continuing until the day her Amended Complaint [4] was filed on June 21, 2018. Id. Finally, Plaintiff contends that Zurich has improperly denied her requests for Continuous Total Disability benefits under the Policy. Id. at 5.

2. The Policy
*2 The Policy’s effective date was January 1, 2015, for a continuous period of time until terminated. See Policy [4-2] at 3. The particular benefits at issue here are those for Accident Medical Expense, for Temporary Total Disability, and for Continuous Total Disability. See id. at 4.

The Policy provides for a Maximum Benefit Period of 104 weeks for Accident Medical Expense and Temporary Total Disability, while the Maximum Benefit Period for Continuous Total Disability is “[u]p to age 70, but not beyond full Social Security retirement age.” Policy [4-2] at 4. The Policy defines “Maximum Benefit Period” as “the maximum period that [Zurich] will pay benefits, after the Waiting Period, under the Temporary Total Disability Benefit, the Continuous Total Disability Benefit or the Accident Medical Expense Benefit.” Id. at 6 (emphasis removed).

The Policy contains the following provision addressing conformity with state law:
Any provision of the Policy that, on its effective date, is in conflict with the statutes of the state in which the Policy was delivered, is hereby amended to conform to the minimum requirements of such state laws.
Id. at 20 (emphasis removed).

B. Procedural history
Plaintiff filed a Complaint [1] on June 20, 2018, followed by an Amended Complaint [4] on June 21, 2018, naming Zurich and her employer, John Christner Trucking, LLC, as Defendants, and invoking the Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. The Amended Complaint advances the following claims against Defendants: (1) injunctive relief to invalidate the Policy’s two-year limitation on medical treatment; (2) breach of contract; (3) intentional infliction of emotional distress; (4) breach of the implied duty of good faith and fair dealing; (5) bad faith; (6) negligent infliction of emotional distress; and (7) respondeat superior. See Am. Compl. [4] at 5-11.

Zurich has filed a Motion [6] to Dismiss or, Alternatively, Motion for Summary Judgment seeking dismissal of Plaintiff’s claims. According to Zurich, Plaintiff’s claims all derive from her contention that the 104-week, or two-year, time limitation for payment of benefits contained in the Policy should be invalidated because it violates Mississippi law. See Mot. [6] at 2. Because Zurich believes that the claim for injunctive relief should be dismissed, it posits that all of Plaintiff’s claims are likewise subject to dismissal. See id. at 2-3.

Plaintiff responds that the 104-week or two-year maximum benefit accumulation period for medical benefits under the Policy is inconsistent with Mississippi law and should be stricken, and that her claim for injunctive relief should not be dismissed. See Pl.’s Mem. [9] at 4-7. Plaintiff contends that, even if her claim for injunctive relief is dismissed, her remaining claims are not automatically subject to dismissal on the same basis, as they are independent of the claim for injunctive relief. Id. at 7.

II. DISCUSSION

A. Relevant legal standards

1. The parties’ submissions
Zurich has filed a Motion to Dismiss under Rule 12(b)(6), or alternatively for Summary Judgment under Rule 56. Zurich submitted no exhibits in support of its Motion [6]. In response, Plaintiff submitted a copy of the Policy [8-1], the independent medical evaluation [8-2] conducted by Dr. Miller, and a May 31, 2017, letter from Zurich [8-3]. Of these exhibits, only the Policy was attached to and incorporated into the Amended Complaint [4]. See Policy [4-2] at 1-21.

*3 “Typically, at the 12(b)(6) stage, the court is confined to the complaint.” Alexander v. Verizon Wireless Servs., LLC, 875 F.3d 243, 247 n.4 (5th Cir. 2017) (citing Fed. R. Civ. P. 12(d)). When a claim necessarily fails as a matter of law, dismissal under Rule 12(b)(6) is appropriate. See, e.g., Christiana Tr. v. Riddle, 911 F.3d 799, 804-06 (5th Cir. 2018) (finding dismissal of claim appropriate when applicable federal statute shielded the defendant from any liability). Zurich filed its Motion pursuant to Rule 12(b)(6), and alternatively under Rule 56, and it did not rely upon any evidence outside the pleadings. Zurich seeks dismissal based upon the legal question of whether one provision of the Policy conflicts with Mississippi law. Accordingly, the Court will consider Zurich’s Motion as one under Rule 12(b)(6) and will exclude and not consider Plaintiff’s other exhibits [8-2], [8-3].1 See Fed. R. Civ. P. 12(d).

2. Rule 12(b)(6)
To survive a motion to dismiss filed pursuant to Rule 12(b)(6), 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016). In order to be facially plausible, a plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

In considering a Rule 12(b)(6) motion, a court must accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. Yumilicious Franchise, LLC, 819 F.3d at 174. Mere labels and conclusions, or a “formulaic recitation of the elements of a cause of action will not do.” Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015) (quoting Iqbal, 556 U.S. at 678). “Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (quoting Iqbal, 556 U.S. at 678) (alteration in original).

In resolving a Rule 12(b)(6) motion to dismiss, a court may consider the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. See Doe v. United States, 853 F.3d 792, 800 (5th Cir. 2017), as revised (Apr. 12, 2017).

3. Interpretation of insurance policies
Because this case arises under the Court’s diversity jurisdiction, it is governed by the substantive law of the forum state, Mississippi. See State Farm Mut. Auto. Ins. Co. v. LogistiCare Sols., LLC, 751 F.3d 684, 688 (5th Cir. 2014) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). Interpretation of insurance policies presents a question of law. Id.

An insurance policy is a contract, and its language and provisions are subject to the same rules of interpretation as other contracts. Hayne v. The Doctors Co., 145 So. 3d 1175, 1180 (Miss. 2014). The interpretation of an insurance policy begins with its plain language. If the language of the policy is clear and unambiguous, it must be applied as written. Id. An ambiguity exists if a policy can be logically interpreted in two or more ways; ambiguity is not created simply because the parties disagree over the interpretation of the policy. See Cont’l Cas. Co. v. Allstate Prop. & Cas. Ins. Co., 235 So. 3d 40, 50 (Miss. 2017), reh’g denied (Oct. 12, 2017) (quotation omitted). Any ambiguities in the policy are resolved in favor of the non-drafting party. See id.

B. Plaintiff’s claim for injunctive relief

1. Statutory authority cited by Plaintiff
*4 Count I of the Amended Complaint [4] asks the Court to invalidate the Policy’s two-year limitation on the payment of medical expenses. See Am. Compl. [4] at 5-6. While styled as a request for “injunctive relief,” it appears that Plaintiff is in substance seeking a declaratory judgment that this provision is invalid because it conflicts with Mississippi law. See id.

Count I specifically invokes Mississippi Code § 71-3-5, which provides in relevant part as follows:
An owner/operator, and his drivers, must provide a certificate of insurance of workers’ compensation coverage to the motor carrier or proof of coverage under a self-insured plan or an occupational accident policy. Any such occupational accident policy shall provide a minimum of One Million Dollars ($1,000,000.00) of coverage. Should the owner/operator fail to provide written proof of coverage to the motor carrier, then the owner/operator, and his drivers, shall be covered under the motor carrier’s workers’ compensation insurance program …. In the event that coverage is obtained by the owner/operator under a workers’ compensation policy or through a self-insured or occupational accident policy, then the owner/operator, and his drivers, shall not be entitled to benefits under the motor carrier’s workers’ compensation insurance program unless the owner/operator has elected in writing to be covered under the carrier’s workers’ compensation program or policy or if the owner/operator is covered by the carrier’s plan because he failed to obtain coverage …. Nothing shall prohibit or prevent an owner/operator from having or securing an occupational accident policy in addition to any workers’ compensation coverage authorized by this section.
Miss. Code Ann. § 71-3-5 (emphasis added).

In Plaintiff’s Response [8], she relies upon Mississippi’s Workers’ Compensation Law, specifically Mississippi Code §§ 71-3-13, 71-3-15, and 71-3-17, to argue that the Policy’s 104-week maximum benefit accumulation period for medical benefits is inconsistent with Mississippi law and should be stricken. Pl.’s Resp. [8] at 2. Plaintiff’s theory is that the Policy conflicts with Mississippi Code § 71-3-13, which she claims provides for up to 450 weeks of temporary disability benefits, with section 71-3-15, which affords lifetime medical benefits, and with section 71-3-17, which provides for up to 450 weeks of disability benefits. Id. at 2-3.

The claim in Count I of the Amended Complaint [4] only concerns the Policy’s 104-week, or two-year, maximum benefit for medical expenses. Mississippi Code § 71-3-13 speaks to minimum and maximum compensation amounts, based upon the average weekly wage of the state, for injuries resulting in disability or death. Compensation amounts are not at issue in Count I.2

*5 Section 71-3-15 relates to medical services for an injured employee under the Workers’ Compensation Law and provides that “[t]he employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require.” Miss. Code Ann. § 71-3-15. Finally, section 71-3-17 deals with disability compensation payments, specifically permanent total disability, temporary total disability, and permanent partial disability workers’ compensation payments; it does not address the payment of medical expenses, which is the issue in Count I.

2. Application of the relevant Policy provision
Plaintiff argues that under Mississippi law, when an insurance policy conflicts with Mississippi’s statutory requirements, the offensive policy or provision will be stricken as invalid, and the statute will control. See Pl.’s Mem. [9] at 6 (citing Owen v. Universal Underwriters Ins. Co., 252 F. Supp. 2d 324, 326 (S.D. Miss. 2003)).3 Here, the Policy requires conformity with Mississippi law and states that “[a]ny provision of the Policy that, on its effective date, is in conflict with the statutes of the state in which the Policy was delivered, is hereby amended to conform to the minimum requirements of such state laws.” Policy [4-2] at 20 (emphasis removed). The wording of this provision is plain and unambiguous and must be construed as written. Under its plain terms, amending the Policy to conform with state statutes is only required if one of its provisions “is in conflict” with state statutes on the Policy’s effective date. See id. The Court cannot say that the 104-week limitation is inconsistent or “in conflict” with the Mississippi statutes cited by Plaintiff. See id.

While the Policy may not afford coverage for as long a period as might be available under the Mississippi Workers’ Compensation Law, it does not appear that the 104-week time limitation on the payment of medical benefits conflicts with any provision of Mississippi law. There is no dispute that the Policy affords $1,000,000.00 of coverage, as required for occupational accident policies by Mississippi Code § 71-3-5. While section 71-3-15 of the Mississippi Workers’ Compensation Law requires an employer to furnish medical and surgical treatment “for such period as the nature of the injury or the process of recovery may require,” Miss. Code Ann. § 71-3-15, Plaintiff has not cited any legal authority that requires the temporal span of medical benefits coverage for an occupational accident insurance policy to be completely coextensive with that available under the Workers’ Compensation Law, see Pl.’s Mem. [9] at 5-7. Indeed, Mississippi Code § 71-3-15 does not specifically reference occupational accident policies; section 71-3-5 does. Plaintiff is ostensibly asking the Court to rewrite the Policy to require Zurich to provide benefits that are equivalent to those provided to employees under the Workers’ Compensation Law, but she has cited no legal authority that would justify such relief.

The Policy is clear that it does not purport to afford workers’ compensation coverage. The first page of the Policy’s Insurance Certificate clearly states:
IMPORTANT NOTICE
THIS IS NOT A WORKERS’ COMPENSATION POLICY AND IS NOT A SUBSTITUTE FOR WORKERS’ COMPENSATION COVERAGE.
Policy [4-2] at 1. Again, on the third page, the Policy states “THIS CERTIFICATE IS NOT WORKERS’ COMPENSATION ….” Id. at 3 (emphasis in original).

*6 Moreover, the text of Mississippi Code § 71-3-5 contemplates that an owner/operator may obtain both occupational accident insurance and workers’ compensation coverages. See Miss. Code Ann. § 71-3-5 (“Nothing shall prohibit or prevent an owner/operator from having or securing an occupational accident policy in addition to any workers’ compensation coverage authorized by this section.”). This would seem to undercut Plaintiff’s position that Mississippi law requires the two types of coverage to be identical.

The Court is not persuaded that the 104-week limitation on payment of medical benefits contained in Plaintiff’s occupational accident Policy is inconsistent or “in conflict” with any of the state statutes she has referenced. Plaintiff therefore cannot rely upon the case law she cites or the conformity-with-state-statutes provision of the Policy to obtain the relief she seeks, see Policy [4-2] at 20, and the claim in Count I that seeks invalidation of the temporal limitation provision of the Policy cannot withstand dismissal. Zurich’s Motion to Dismiss will be granted as to the claim for injunctive relief in Count I.

C. Plaintiff’s remaining claims
Although the Court has determined that Count I should be dismissed, it agrees with Plaintiff that the remaining claims in the Amended Complaint encompass issues broader than the 104-week time limitation claim contained in Count I. Because Zurich has made no additional arguments for dismissal as to these other claims, Zurich’s Motion to Dismiss will be denied as to Plaintiff’s remaining claims.

III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion [6] to Dismiss, or Alternatively, Motion for Summary Judgment filed by Defendant Zurich American Insurance Company is GRANTED IN PART, as to the claim for injunctive relief set forth in Count I of the Amended Complaint [4], and DENIED IN PART, as to Plaintiff’s remaining claims.

IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Tina Witte’s claim against Defendant Zurich American Insurance Company for injunctive relief contained in Count I of the Amended Complaint [4] is DISMISSED WITH PREJUDICE.

SO ORDERED AND ADJUDGED, this the 1st day of March, 2019.

All Citations
Slip Copy, 2019 WL 1006241

Footnotes

1
Even if the Court considered these exhibits under a summary judgment standard, the result would not change. Zurich has demonstrated that there is no genuine dispute of material fact and that it is entitled to judgment as a matter of law as to the claim for injunctive relief. See Fed. R. Civ. P. 56(a).

2
Even if Mississippi Code § 71-3-13 were applicable to the issue of the duration of payment of medical benefits, this statute imposes a ceiling, not a baseline, for the duration of such compensation. Specifically, the statute provides that “[t]he total recovery of compensation hereunder, exclusive of medical payments under Section 71-3-15, arising from the injury to an employee or the death of an employee, or any combination of such injury or death, shall not exceed the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66- 2/3 %) of the average weekly wage for the state.” Miss. Code Ann. § 71-3-13(2).

3
Owen involved a claim for uninsured motorist insurance coverage, which implicates a different statutory scheme than that which addresses occupational accident policies and workers’ compensation.

2019 WL 1171235

United States District Court, S.D. Indiana, Indianapolis Division.
John MILLER, Plaintiff,
v.
PANTHER II TRANSPORTATION, INC., Expediter Services, LLC, William A. Hall, Defendants.
No. 1:17-cv-04149-JMS-TAB
|
Signed 03/12/2019
Attorneys and Law Firms
Austin Andreas, James F. Ludlow, Lance R. Ladendorf, Law Offices of James F. Ludlow, Attorney at Law, P.C., Indianapolis, IN, for Plaintiff.
Donald W. DeVitt, Pro Hac Vice, Scopelitis Garvin Light & Hanson, Chicago, IL, Renea Elaine Hooper, Scopelitis Garvin Light Hanson & Feary PC, Indianpolis, IN, for Defendants.

ORDER
Hon. Jane Magnus-Stinson, Chief Judge
*1 Plaintiff John Miller originally brought this lawsuit against Defendant Panther II Transportation, Inc. (“Panther”), alleging that he was injured when Panther’s employee pulled away from a loading dock while he was using a forklift in the back of the box truck. After the statute of limitations had run, Mr. Miller sought leave to amend his Complaint to allege claims against William Hall, who allegedly drove the box truck, and Expediter Services, LLC (“Expediter”), which may have employed Mr. Hall. Panther opposed the Motion to Amend, arguing that the proposed amended complaint would not relate back to the filing of the original Complaint. The Court granted Mr. Miller’s Motion to Amend, noting the odd posture of Panther attempting to raise Expediter’s affirmative defense and the paucity of the record. The dispositive issue for relation back, the Court held, was not what the plaintiff knew at the time the statute of limitations ran, but whether the newly-joined party “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” [Filing No. 34 at 2.]

Now, Expediter, one of the newly-joined parties, has filed a Motion to Dismiss, arguing that it had no reason to believe it would have been sued but for a mistake and that Mr. Miller’s suit is therefore time-barred. [Filing No. 61.] Expediter’s Motion should have been styled a motion for summary judgment under Rule 56. But Mr. Miller recognized this fact and took the opportunity to submit evidence in response. Cf. Fed. R. Civ. P. 12(d) (“All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”). The undisputed evidence provides no basis for relation back, rendering Mr. Miller’s claim against Expediter untimely under the applicable statute of limitations. The Court, construing Expediter’s Motion as a motion for summary judgment, GRANTS the Motion for the reasons described below.

I.

LEGAL STANDARD
As alluded to above, a threshold issue in assessing Expediter’s Motion is determining the applicable legal standard. Expediter has filed its Motion to Dismiss under Rule 12(b)(6), which provides a mechanism for challenging the legal sufficiency of a complaint, arguing that Mr. Miller’s Complaint is barred by the applicable statute of limitations. “Dismissing a complaint as untimely at the pleading stage is an unusual step, since a complaint need not anticipate and overcome affirmative defenses,” except in the rare situation where the plaintiff “alleges facts sufficient to establish a statute of limitations defense.” Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015). This would be such a situation given that the dates set forth in the Amended Complaint establish its untimeliness, except that Mr. Miller has raised the relation-back doctrine to resist the application of the statute of limitations. Expediter anticipated this (which is unsurprising, given the procedural history of this matter), and therefore submitted a declaration from its president in support of its Motion. Expediter’s decision to present “matters outside the pleadings” means that it should have filed its motion as a motion for summary judgment under Rule 56, consistent with the ordinary procedure for resolving affirmative defenses. Fed. R. Civ. P. 12(d); Sidney Hillman, 782 F.3d at 928.

*2 The result is that the Court must either exclude Expediter’s evidence or treat the motion “as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). Mr. Miller likewise recognized that resolving Expediter’s Motion required consideration of outside evidence, having submitted numerous exhibits in opposition. He also affirmatively asserts that the Court “should construe the Motion under [Rule 56] as a Motion for Summary Judgment.” [Filing No. 76 at 9.] Based upon this affirmative assertion and recognition that Expediter’s Motion should be resolved under the parameters of Rule 56, cf. Sansone v. Brennan, 2019 WL 1062288 (7th Cir. 2019) (publication pending) (“Waiver is intentionally abandoning a known right.”), the Court concludes that all parties have received “a reasonable opportunity to present all the material that is pertinent to the motion,” Fed. R. Civ. P. 12(d). Accordingly, the Court treats Expediter’s Motion as a motion for summary judgment. As noted, Mr. Miller anticipated the treatment of Expediter’s Motion as one for summary judgment, and he responded accordingly, also submitting matters outside the record. He has therefore had a full opportunity to be heard, and Expediter’s motion is ripe for consideration.

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

II.

BACKGROUND
*3 The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

As the Court summarized in its Order dated July 6, 2018 granting Mr. Miller’s Motion to Amend:
This lawsuit arises out of a November 18, 2015 incident when Mr. Miller and the forklift he was operating fell out of the back of a box truck when the truck began to drive away from the loading dock. [Filing No. 1-1 at 3.] On October 11, 2017, Mr. Miller brought suit against Panther in state court, alleging that the incident occurred as a “result of the negligence of [Panther’s] employees and agents.” [Filing No. 1-1 at 4.] On November 8, 2017, Panther removed the matter based upon the Court’s diversity jurisdiction. [Filing No. 1.]
Through discovery, Mr. Miller learned that Mr. Hall was the driver of the box truck and that he was (or may have been) an employee of Expediter.
[Filing No. 34 at 3-4.] Mr. Miller had obtained a recorded statement from Mr. Hall in which he said: “Expediter’s [sic] was the one that I was gettin’ paid through…. Yeah, I was just an employee of Expediter Services.” [Filing No. 76-6 at 6-7.]
Thereafter,
[o]n December 22, 2017, Mr. Miller’s counsel mailed a letter to Mr. Hall explaining that “when this lawsuit was filed, I did not know your involvement with this accident” and that “it has now become necessary to add you as a party defendant in this lawsuit.” [Filing No. 17-10 at 3.] On January 9, 2018, Mr. Miller’s counsel mailed a similar letter to counsel for Expediter, explaining Mr. Hall had given a statement that he was an employee of Expediter at the time of the incident. [Filing No. 17-10 at 7.] The letter stated: “I understand that Mr. Hall may be mistaken in this assertion, but this is what he said. If I had known this information previously, I would have named Expediter … as a party defendant in this lawsuit….” [Filing No. 17-10 at 7.]
[Filing No. 34 at 4.]

Panther has admitted that, while it denies that any of its employees or agents were negligent, it is the proper defendant in this lawsuit “because the vehicle and truck driver involved in the incident were dispatched and operated under Panther’s federal motor carrier operating authority.” [Filing No. 62 at 3 (citing admission in Amended Complaint at Filing No. 43 at 5 (“[Panther] admits [that it] is responsible for the conduct of defendant Hall which occurred within the scope of and while under dispatch….”) ).] Panther has also offered uncontested evidence providing additional details concerning the relationships between Expediter, Panther, and Mr. Hall. Expediter provides equipment and support for trucking companies. [Filing No. 62-1 at 1.] Expediter entered into a contract with Panther to provide such services. [Filing No. 62-1 at 1-2.] Mr. Hall, in turn, had an independent contractor relationship with Expediter through which he leased a truck. [Filing No. 62-1 at 40-52.] Panther exclusively possessed and controlled the equipment it received pursuant to its contract with Expediter. [Filing No. 62-1 at 2.] Panther was also responsible for dispatching the drivers provided by Expediter, such as Mr. Hall, under the terms of the contract. [Filing No. 62-1 at 2.]

*4 On October 1, 2018, Expediter filed the instant Motion, [Filing No. 61], which the Court has construed as a motion for summary judgment. Expediter’s Motion is now fully briefed and ripe for consideration.

III.

DISCUSSION
As the Court has explained, Mr. Miller moved for leave to amend his Complaint to add Expediter as a defendant after the statute of limitations had run for a negligence claim, arguing that the amendment related back to the timely-filed Complaint. The parties’ briefing in large part mirrors the arguments made on Mr. Miller’s Motion to Amend, with the caveat that now Expediter, the newly-added Defendant, has had the opportunity to offer evidence and argument concerning what it knew or should have known within the Rule 4(m) period. Expediter appropriately realizes that “[t]he nature of Plaintiff’s mistake is not important,” but argues, based upon its contractual relationship with Panther and Mr. Hall, that it did not expect to be sued but instead “expected (and still expects) Panther to be responsible for any claims which resulted from … the dispatch of its driver William Hall.” [Filing No. 62 at 10.]

In response, Mr. Miller first argues that his letters to Expediter “are more than sufficient to have placed Defendant Expediter on actual notice” that it would have been sued but for a mistake. [Filing No. 76 at 7.] Mr. Miller additionally argues that he has met his burden of demonstrating relation back under the Indiana Rules of Trial Procedure. [Filing No. 76 at 7-9.] Finally, Mr. Miller argues that there is a genuine issue of material fact as to the relationship between Mr. Hall and Expediter based upon Mr. Hall’s recorded statements. [Filing No. 76 at 10-11.]

In reply, Expediter reiterates that Mr. Miller has failed to establish relation back. [Filing No. 86 at 1-4.] Expediter argues that Mr. Miller’s evidence fails to generate a genuine issue of fact as to the contractual relationship between Expediter and Mr. Hall and that, regardless, his perception of that relationship has no bearing on what Expediter knew or should have known. [Filing No. 86 at 4-6.]

The Court begins, as it did in its Order on Mr. Miller’s Motion to Amend, with the text of Federal Rule of Civil Procedure 15(c)(1):
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
…
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

As Panther did in response to the Motion to Amend, Expediter here has conceded that subparagraph (i) is met, inasmuch as it received the letter from Mr. Miller within the Rule 4(m) timeline and raises no claim of prejudice. [See Filing No. 62 at 6.] Therefore, the issue before the Court is whether Expediter, as “the party to be brought in by amendment,” “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C). The Court’s earlier Order on Mr. Miller’s Motion to Amend dealt with a “discrete part of subparagraph (ii)—the meaning of ‘but for a mistake concerning the proper party’s identity.’ ” [Filing No. 34 at 5.] At the time, Panther argued that Mr. Miller could not meet that provision because Mr. Miller did not make a “mistake” concerning Expediter’s identity, but instead simply lacked knowledge of Expediter’s potential employment role at the time he filed this lawsuit. Based upon the Supreme Court’s decision in Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2009), and the Seventh Circuit’s decision in Joseph v. Elan Motorsports, 638 F.3d 555, 559 (2011), the Court rejected Panther’s argument as reflecting the “incorrect focus by looking at what Mr. Miller knew or did not know [about Expediter.] Krupski requires a different focus: the Court must look to what [Expediter] knew or should have known.” [Filing No. 34 at 12.] As the Supreme Court succinctly explained, “Information in the plaintiff’s possession is relevant only if it bears on the defendant’s understanding of whether the plaintiff made a mistake regarding the proper party’s identity.” Krupski, 560 U.S. at 548. Applying the correct focus, the Court granted Mr. Miller’s Motion to Amend, noting that because Expediter was not a party, it could not “meaningfully litigate … what [it] ‘knew or should have known.’ ” [Filing No. 34 at 6.] Rather, in that procedural posture, the “only evidence … [was] the uncontroverted and uncontested evidence proffered by Mr. Miller, which demonstrate[d] that he informed the Putative Defendants of his intent to join them in the action within the time allotted by Rule 4(m).” [Filing No. 34 at 6.]

*5 Now, however, Expediter is a party, and the undisputed evidence conclusively demonstrates that it had no reason to believe that it would have been joined “but for a mistake concerning the proper party’s identity.” Mr. Miller’s counsel’s letter to Expediter explained only that Mr. Hall had stated that “he was an employee of Expediter Services at the time of [the] accident” and that, had he “known this information previously, [he] would have named Expediter Services as a party defendant in the lawsuit.” [Filing No. 76-4 at 1.] At the time, Expediter knew that it had an independent contractor relationship with Mr. Hall and that Panther was responsible for dispatching Mr. Hall for trucking assignments. As such, Expediter had no reason to believe that its omission from this lawsuit was a mistake.

Mr. Miller’s arguments to the contrary are unavailing. First, Mr. Hall’s conclusory statement about being an Expediter employee is insufficient to create a genuine issue of material fact concerning Mr. Hall’s relationship with Expediter. Moreover, in the final analysis, the precise legal contours of that relationship are irrelevant to whether Expediter should have known that it would have been sued except to the extent the relationship put Expediter on notice that it would have been sued. See Joseph, 638 F.3d at 560 (holding that the nature of the contractual relationships issue put unnamed, but related, corporate defendant on notice that it would have been named as a defendant but for the plaintiff’s mistake). One can imagine a situation where a company attaches an “independent contractor” label to a relationship with an individual, but actually carries out all of the functions of an employer. In such a situation, the company could not hide behind the superficial language of its contract to argue against relation back. But Mr. Hall’s statements about being “paid through” Expediter and being “just an employee of Expediter” do not suffice against the unrebutted terms of the contracts at issue. Rather, the undisputed evidence shows that it was Panther who dispatched Expediter and who has admitted that Mr. Hall was acting as its agent at the time of the incident. Given that information, Expediter had no reason to believe that Mr. Miller had made a mistake in omitting it, but instead reasonably believed that it had not been named as a defendant because it lacked the required agency relationship for vicarious liability.

In other words, Expediter knew that Mr. Hall had sued Panther—a proper party to this matter. From Expediter’s perspective, Mr. Miller’s decision to sue a proper party appeared to be anything but a mistake, and nothing about Mr. Hall’s statement impacts that assessment. Indeed, Panther has conclusively admitted, in its Answer, that it is “responsible for the conduct of defendant Hall.” [Filing No. 43 at 5.] That admission is “binding upon the party making [it]” and “may not be controverted”; in fact, the admission “ha[s] the effect of withdrawing [the issue] from contention.” Keller v. United States, 58 F.3d 1194, 1198 n.9 (7th Cir. 1995) (internal quotation omitted). As such, Panther has no leeway to withdraw or challenge its status as a proper party for secondary liability for Mr. Hall’s alleged negligence. Mr. Miller therefore faces no risk that he may lack a remedy should he be able to prove that Mr. Hall was negligent.

Finally, Mr. Miller’s reliance on Indiana Rule of Trial Procedure 15(C) is likewise misplaced. Trial Rule 15(C), like Federal Rule of Civil Procedure 15(c), provides that a belated amendment may relate back if, among other things, “the party to be brought in by amendment[ ] … knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against [it].” Mr. Miller cites a string of cases to illustrate “the relative liberality of Indiana law regarding what constitutes a ‘mistake.’ ” [Filing No. 76 at 7.] But Mr. Miller’s argument again is incorrectly focused on what he knew or did instead of what Expediter knew or should have known. Again, the evidence does not support Mr. Miller’s assertion that Expediter should have known that it was omitted because of a mistake instead of being omitted because it was not Mr. Miller’s employer.

*6 Moreover, Indiana precedent does not provide Mr. Miller with the favorable interpretation of “mistake” set forth in Krupski and Joseph. In Miller v. Danz, 36 N.E.3d 455 (Ind. 2015), an opinion issued long after Krupski, Joseph, and the cases cited in Mr. Miller’s brief, the Indiana Supreme Court rejected the argument that the “lack of knowledge of [a defendant’s] identity would qualify as a mistake for purposes of relation back under Trial Rule 15(C).” Id. at 457. As the court explained, reminiscent of the reasoning set forth in the pre-Krupski opinion of Hall v. Norfolk Southern Railway Co., 469 F.3d 590 (7th Cir. 2006), “Adding a new party because there has been a mistake concerning the identity of the proper defendant, i.e. a misnomer, is not akin to inserting a name for a previously unknown ‘John Doe’ defendant.” Miller, 36 N.E.3d at 458. And without a “ ‘mistake,’ Trial Rule 15(C) has no application.” Id. Therefore, in addition to falling short under Federal Rule of Civil Procedure 15(c), Mr. Miller’s Amended Complaint does not relate back under Trial Rule 15(C).

IV.

CONCLUSION
Properly focusing the inquiry on whether Expediter knew or should have known, the Court concludes that the undisputed evidence provided Expediter with no reason to believe that it would have been sued but for Mr. Miller’s mistake. Mr. Miller’s time-barred claim against Expediter therefore does not relate back to the timely-filed original Complaint under Federal Rule of Civil Procedure 15(c). For the same reason, in addition to the Indiana Supreme Court’s distinct interpretation of “mistake,” Mr. Miller’s Amended Complaint does not relate back under Trial Rule 15(C). The Court construes Expediter’s Motion to Dismiss as a motion for summary judgment and, so construed, GRANTS the Motion [61] because Mr. Miller’s claim against Expediter is barred by the statute of limitations. Because Mr. Miller’s Amended Complaint remains pending against Panther and Mr. Hall, no partial final judgment will issue.

All Citations
Slip Copy, 2019 WL 1171235